2013 QCCA 403, 2013 QCCA 403

R. c. Lebel 2013 QCCA 403 COUR D’APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE QUÉBEC N° : 200-10-002682-115 (200-01-130047-081) (200-01-130048-089) DATE : LE 6 MARS 2013 CORAM : LES HONORABLES BENOÎT MORIN, J.C.A. ALLAN R. HILTON, J.C.A. GUY GAGNON, J.C.A. SA MAJESTÉ LA REINE APPELANTE – Poursuivante intimée c.

GEORGES LEBEL GILBERT GAGNON INTIMÉS – Accusés requérants ARRÊT [ 1 ] L'appelante se pourvoit contre le jugement de la Cour du Québec (chambre criminelle et pénale) rendu le 23 juin 2011 (l'honorable Richard Côté, j.c.q.) accueillant la requête en arrêt des procédures des intimés. [ 2 ] Pour les motifs du juge Hilton, auxquels souscrivent les juges Morin et Gagnon, LA COUR : [ 3 ] ACCUEILLE l'appel; [ 4 ] CASSE le jugement visé par l'appel; [ 5 ] REJETTE la requête en arrêt des procédures; [ 6 ] RETOURNE le dossier à la Cour du Québec pour la continuation des procédures en première instance. BENOÎT MORIN, J.C.A.

ALLAN R. HILTON, J.C.A. GUY GAGNON, J.C.A. Me Pierre Lapointe Me Daniel Bélanger Procureurs aux poursuites criminelles et pénales Pour l'appelante Me Michel Roberge Dumas, Gagné Pour l'intimé Georges Lebel Me Jean Asselin STEIN, MONAST

Pour l'intimé Gilbert Gagnon Date d’audience : 27 novembre 2012 REASONS OF HILTON, J.A. I INTRODUCTION [ 7 ] This appeal presents a number of unique features. [ 8 ] The principal one is that two trial judges in the same court files involving the same two accused came to opposite conclusions on similar motions to stay proceedings. The first judge, who recused himself shortly after rendering his judgment, dismissed the motion, while the second, who replaced him pursuant to subsection 669.2(3) Cr.C . , granted it.

The Crown now appeals the latter judgment, and seeks an order that the file be returned to the Court of Quebec for the trial of both respondents, who are each charged with two counts of perjury [1] and two counts of obstruction of justice. [2] [ 9 ] Another feature that is most significant in the overall scheme of things is that the respondents' motions for a stay of proceedings, which invoke a violation of their right to be tried within a reasonable delay, [3] involves one set of charges brought by a private complainant that were initially authorized by a judge of the Court of Quebec, then stayed by the Crown having immediately filed a nolle prosequi under

section 579 Cr.C . Over two years later, the Crown then filed the separate charges that the respondents succeeded in having the second trial judge stay. II THE FACTS AND THE PROCEEDINGS [ 10 ] As the sequence of events leading to the current state of the two files spans several years and several separate series of events, it is important to set out the facts in detail. The information is derived from judgments of the Civil Division [4] and the Criminal and Penal Division of the Court of Quebec, [5] the Criminal Division of the Superior Court, [6] and the court file of and judgments in an earlier appeal to this Court. [7]

A) The initial incident later giving rise to the charges against the respondents [ 11 ] In 2001, the two respondents were police officers in the employ of the municipality of Charlesbourg, which subsequently merged with the City of Quebec. An extensive description of the events that occurred on the evening of February 2, 2001 that are at the origin of the two separate sets of charges appears from an extract from a judgment of Bossé, J.C.Q. rendered on December 17, 2003. That judgment disposed of an action in damages brought by Daniel Audet, a medical doctor, against the City of Quebec, in which Mr.

Audet claimed damages for invasion of privacy. [ 12 ] In addition to his civil proceedings, Mr.

Audet was also: • charged with one count of assaulting a police officer and another of uttering death threats, both of which resulted in not guilty verdicts; • the initiator of a complaint to the Quebec City police department relating to the two respondents that was rejected; • the initiator of a private criminal complaint that a judge of the Court of Quebec authorized to be filed that led to other proceedings in the Superior Court and this Court after the Crown filed a nolle prosequi ; • involved in interactions with a Crown prosecutor and a trial judge that caused delays in the orderly conduct of proceedings. [ 13 ] Here are the relevant facts Bossé, J.C.Q. described that brought the respondents into contact with Mr.

Audet as a result of which they became accused persons under the Criminal Code : [3] Le demandeur est un médecin généraliste. Bien qu'il habitait [à l’adresse 1], à Beaupré, où il habite toujours, le demandeur avait aussi un appartement [à l’adresse 2], à Charlesbourg, lorsque sont survenus les événements qui forment la base de son action. Cet appartement était situé dans une conciergerie de huit étages. [4] Le demandeur a décidé, le vendredi 2 février 2001, de passer la soirée à sa résidence de Charlesbourg.

Après avoir quitté son bureau vers 18 heures, il s'est arrêté à un magasin de la Société des alcools du Québec pour acheter des boissons alcooliques. [5] Quand le demandeur est arrivé à son appartement, s'y trouvait déjà une personne qu'il qualifie comme étant alors "sa compagne" ou "une amie de coeur", N... B.... Bien qu'elle habitait au domicile de ses parents, celle-ci possédait une clé de l'appartement.

Le 2 février 2001, elle était accompagnée d'une camarade, une dénommée J..., esthéticienne de profession mais alors sans emploi. [6] Le demandeur précise que, au cours de la soirée, il est survenu une dispute entre les deux filles et qu'elles ont quitté l'appartement. Le demandeur déclare qu'il avait senti de la tension entre elles, même une certaine "animosité qui commençait à naître parce qu'elles circulaient dans les chambres, se disaient des secrets, puis elles allaient à la salle de bains". Cette dispute serait, selon le demandeur, survenue vers 21 h 30.

Toutefois, dans un interrogatoire au préalable, le demandeur déclare qu'il ne connaissait pas les

raisons pour lesquelles elles se disputaient. Il qualifie cependant la dispute de "virulente" et agressive bien que sans échange de coups. Il déclare que N... B... a quitté en prenant en mains son téléphone cellulaire. À leur départ, le demandeur, qui dit qu'il se sentait passablement fatigué, déclare qu'il a enlevé ses vêtements et qu'il s'est étendu sur le divan du salon. Il avait auparavant raccompagné à la porte de son appartement la dénommée J.... Ce faisant, il a accroché un pot de fleurs qui est tombé.

Il n'a rien ramassé avant de se coucher. [7] Le témoignage de Denis Tendland révèle que, chauffeur de taxi, il conduisait assez régulièrement N... B... à un endroit ou l'autre. Selon lui, elle exerçait le métier de prostituée et ce, depuis environ deux ans avant sa rencontre avec le demandeur, et elle avait continué à l'exercer. Le demandeur, en contre-preuve, a précisé qu'il connaissait un peu les antécédents de son amie de cœur mais que si elle a reçu des individus à l'appartement de Charlesbourg, c'est à son insu. [8] Il appert donc que le chauffeur de taxi connaissait assez bien N... B....

Elle lui avait même déjà raconté que, lorsque le demandeur mélangeait alcool et médicaments, elle avait subi des violences. Lorsqu'il l'avait reconduite à l'appartement du demandeur, dans l'après-midi du 2 février 2001, elle lui avait dit qu'elle le rappellerait lorsque ce serait le moment d'aller la chercher. Or, lorsque le chauffeur était en train de manger, il a reçu un appel de N... B... qui lui a dit : "le docteur est violent, il est encore sur les pilules, viens me chercher, je me suis enfermée dans la salle de bains". Le chauffeur de taxi a immédiatement quitté le restaurant pour se rendre à l'appartement.

Cependant, il a reçu un autre appel téléphonique pressant de N... B.... [9] Rendu à destination, le chauffeur de taxi a attendu sa cliente pendant cinq à six minutes. Comme elle ne se montrait pas, il a décidé de communiquer à l'appartement par l'interphone. Le demandeur lui a alors répondu qu'elle était dans l'ascenseur. Ne voyant pas apparaître sa cliente, le chauffeur de taxi déclare qu'il a rappelé à l'appartement et que le demandeur lui a répondu qu'elle était bien partie. Selon le témoin, il a alors dit au demandeur : "je vais appeler la police".

Celui-ci, après lui avoir parlé de Néfertiti, lui a dit d'appeler la police s'il le désirait et il a ajouté : "va te faire foutre". Cette référence à une ancienne reine d'Égypte et la réponse plus directe du demandeur n'étaient pas de nature à réconforter le chauffeur de taxi. [10] Il a alors décidé de faire appel au 9-1-1. Se rendant à l'immeuble, deux policiers dans une voiture-patrouille, les agents Gagnon et Lebel, ont croisé l'automobile-taxi. Le chauffeur leur a fait signe d'arrêter.

Il leur a relaté les deux appels téléphoniques que lui avait faits sa cliente, la déclaration qu'elle lui avait déjà faite à l'effet qu'elle avait subi des violences lorsque le docteur mélangeait alcool et médicaments. Il leur a fait part de ses essais infructueux pour localiser sa cliente et obtenir des renseignements en communiquant à l'appartement par l'interphone. Il leur a aussi révélé son inquiétude. [11] Les policiers se sont présentés à la porte de l'appartement en compagnie du concierge de l'immeuble et du chauffeur de taxi. Ils ont frappé à la porte à plusieurs reprises en s'identifiant.

N'obtenant pas de réponse, les policiers ont demandé au concierge d'ouvrir la porte. [12] Le concierge a ouvert la porte. Les policiers ont immédiatement remarqué qu'il y avait un pot de fleurs renversé par terre dans le vestibule à l'entrée de l'appartement. Sur une patère, un manteau de femme était accroché. Le chauffeur de taxi l'a identifié comme celui de sa cliente. Il y avait des escarpins près de la patère. Un miroir était cassé. Du vestibule, ils ont vu un homme qui dormait sur le divan du salon adjacent, le visage tourné vers le dossier.

Il y avait à terre des bouteilles de bière et une bouteille de champagne vides. Les policiers ont visité les pièces de l'appartement pour savoir s'il y avait quelqu'un d'autre que celui qui dormait sur le divan. Ils ont constaté qu'il y avait un sac à main et deux paires de souliers de femme. Puis, sans réveiller l'homme qui dormait, les policiers sont sortis. Ils ont alors parcouru les huit étages de l'immeuble dans l'espoir que la femme soit dans le corridor de l'un ou l'autre des étages. Sans succès. [13] D'un commun accord, les deux policiers ont ensuite décidé de faire appel à un policier-enquêteur.

C'est l'agent Lebel qui s'est chargé de faire l'appel téléphonique. Il était environ 23 h 10. Le policier-enquêteur Dufour s'est présenté à l'immeuble vers 23 h 30. Il s'est rendu à la porte de l'appartement en compagnie des deux agents, du concierge et du chauffeur de taxi. Le policier-enquêteur a frappé à la porte en s'identifiant. N'obtenant pas de réponse, il a demandé au concierge d'ouvrir la porte. [14] À l'enquêteur Dufour, la situation des lieux a semblé présenter des signes de lutte : le miroir cassé, le vase renversé, les bouteilles par terre, le manteau de femme sur la patère.

Ces signes, liés à la disparition de la femme qui avait fait des appels de détresse au chauffeur de taxi, lui semblaient des éléments qui nécessitaient enquête. D'autant plus que l'enquêteur avait cru déceler des taches de sang sur le tapis, dans le salon, entre la table et la bibliothèque. Les policiers ont alors fait une visite plus approfondie. Dans la salle de bains, ils ont découvert un sac à main de femme dans lequel il y avait notamment des médicaments prescrits par le médecin qui occupait l'appartement. [15] N'ayant découvert personne, les policiers se sont approchés de l'homme qui dormait.

Le policier-enquêteur Dufour l'a réveillé. Il s'est identifié et il a expliqué qu'ils recherchaient N... B.... Le demandeur lui a alors parlé de Néfertiti. Comme l'enquêteur ne comprenait pas de quoi il parlait, le demandeur lui a dit qu'un trou du cul ne pouvait savoir ce que c'était. Selon les policiers, le demandeur s'est ensuite énervé, menaçant l'enquêteur Dufour de lui "en crisser une". L'enquêteur s'est retiré vers le hall d'entrée. Les agents de police se sont interposés, tentant d'éloigner le demandeur en l'amenant vers la chambre.

En fait, l'agent Gagnon, qui avait découvert qu'il s'agissait de son médecin de famille, avait, semble-t-il, réussi à le calmer en l'interpellant par son nom. Cependant, lorsque les agents ont quitté la chambre, le demandeur les a suivis précipitamment et tous les quatre, les agents, le demandeur et l'enquêteur, se sont retrouvés dans le couloir. Le demandeur cherchait à donner un coup de poing à l'enquêteur. Il ne l'a cependant pas atteint, les agents s'interposant. L'enquêteur a finalement décidé, dans les circonstances, de procéder à l'incarcération du demandeur. Les agents l'ont mis au sol et menotté.

L'enquêteur est allé chercher des bottes et un manteau, parce que le demandeur ne portait que des bobettes. [16] Dans l'ascenseur, l'agent Lebel a fait part de ses droits au demandeur et l'a informé qu'il était arrêté pour avoir exercé des voies de fait contre un agent dans l'exercice de ses fonctions. Puis les agents ont amené le demandeur au poste de police. Ils ont enlevé les menottes au demandeur à l'arrivée au poste. Comme il n'y avait pas moyen de discuter avec le demandeur, qui s'emportait, les agents l'ont mis en cellule pendant environ 45 minutes.

Finalement, un lieutenant du nom de Gendreau a décidé de le libérer. [17] Selon les agents de police, le demandeur a accepté de signer une formule d'autorisation de perquisition. Cette autorisation est produite sous la cote P-6. Selon l'agent Lebel, il est allé chercher le formulaire dans la salle de garde, au poste de police, lorsque le

lieutenant Gendreau lui a dit qu'il était nécessaire de faire signer une autorisation de perquisition. Selon l'agent Lebel, il a tendu le formulaire au demandeur quand ils furent rendus à la porte de l'appartement de ce dernier. Le formulaire était sur un bloc-notes. Le demandeur l'aurait signé en se tenant debout. L'agent Lebel précise que l'agent Gagnon était alors à sa droite. Ce dernier corrobore substantiellement le témoignage de son collègue sur ce point.

Une fois entrés, les agents ont emporté un manteau de femme, un sac à main, deux paires de souliers de femme. [18] L'intervention des policiers accompagnés de l'enquêteur a entraîné deux accusations, celle d'avoir exercé des voies de fait contre un agent de la paix dans l'exercice de ses fonctions et celle d'avoir proféré une menace de mort ou de lésions corporelles. [19] Les deux accusations furent rejetées et le demandeur allègue ces rejets dans son action civile. Les motifs des rejets sont résumés comme suit dans le jugement du juge en chef de la cour municipale de Québec : 50.

Les policiers n'ont pas agi à l'intérieur des pouvoirs que leur attribue la loi. Ils se retrouvent donc sans aucun droit dans le domicile du défendeur. Même si les voies de fait contre l'enquêteur Gino Dufour étaient établies il ne peut prétendre qu'il était dans l'exercice de ses fonctions ce qui est un élément essentiel de l'une des infractions reprochées au défendeur. 51. Quant à l'autre infraction qui consiste à avoir proféré une menace de mort de l'enquêteur il n'y a pas de preuve permettant d'établir qu'elles ont été perçues si elles étaient prouvées comme visant à intimider ou susciter la crainte.

L'enquêteur était protégé par deux policiers qui faisaient un rempart entre lui et le défendeur. La poursuite lors du procès a reconnu que les éléments essentiels de l'infraction n'avaient pas été établis." [20] Il convient de souligner que le conjoint de la témoin Annie Maltais a trouvé N... B... qui était à terre dans l'ascenseur. Elle avait des difficultés à parler. Il l'a amenée à l'appartement qu'il habite avec sa conjointe. N... B... leur a déclaré : "il m'a battue, c'est un fou". Elle leur a raconté, à eux aussi, qu'il devenait agressif quand il prenait de l'alcool et des médicaments.

Appelée à témoigner par la défenderesse, N... B... a dit ne pas se rappeler ce qu'elle avait dit parce qu'elle n'avait pas toute sa tête à ce moment-là. Elle s'est toutefois déclarée surprise par l'ampleur que cette affaire avait prise et elle a tenté de minimiser le bien-fondé de ses appels au chauffeur de taxi et de ses déclarations en précisant qu'elle était en détresse.

Ceci dit, elle est restée jusqu'au lendemain à l'appartement de ceux qui l'avaient secourue, ce qui explique pourquoi les policiers n'ont pu la retracer. [ 14 ] The critical event as far as these proceedings are concerned is that described in paragraph [17] of the judgment of Bossé, J.C.Q. Mr. Audet denied having signed any authorization that would have allowed the two police officers to carry out the search of his premises after they had returned with him from the police station. In light of his denial as well as the expert report and testimony of a handwriting expert that Mr.

Audet retained, here is how Bossé, J.C.Q. analyzed the situation given that a search warrant had not been obtained: [33] Quant à la perquisition et la saisie d'objets qui furent faites lorsque les policiers ont ramené le demandeur à son appartement, celui-ci affirme qu'elles furent faites sans autorisation de sa part et, cela va sans dire, sans mandat. Il a d'ailleurs mandaté une spécialiste en écriture pour faire une expertise de la signature, supposée être la sienne, qui apparaît sur le formulaire d'autorisation d'une perquisition.

La spécialiste conclut à "une très forte probabilité que la signature litigieuse soit fausse". [8] La défenderesse n'a pas présenté de contre-expertise. [34] Même si le tribunal n'est pas lié par l'opinion d'un expert, il faut tout de même qu'il puisse, pour l'écarter, se baser sur des éléments non contredits de la preuve ou une contre-expertise ou des erreurs perceptibles dans l'expertise.

Bien que des expertises en écriture soient souvent acceptées avec plus de réserve que des expertises dans d'autres domaines, il est difficile, dans l'espèce, d'écarter une expertise sérieuse à partir de ma seule appréciation de profane en la matière. Je dois partant conclure que la preuve révèle d'une façon prépondérante que la perquisition et la saisie de certains biens furent faites illégalement. [ 15 ] Whatever else he may have thought of Mr. Audet's testimony, Ms.

Pettinati's uncontradicted expert report and related testimony led Bossé, J.C.Q. to maintain the action and condemn the City of Quebec to pay him damages of $5,000 plus interest, the additional indemnity and costs.

B) Mr. Audet's trial and acquittal [ 16 ] The two charges for which Mr. Audet stood trial were laid on March 13, 2001, and the judgment acquitting him was rendered on November 27, 2001. As they did at the civil trial, the two respondents testified to their having seen Mr. Audet sign the authorization to search his premises in the circumstances Bossé, J.C.Q. later described at paragraph [17] of his judgment. The principal reasons for Mr. Audet's acquittal are set out in paragraphs [50] and [51] of the judgment of the Municipal Court that Bossé, J.C.Q. reproduced at paragraph [19] of his judgment.

It is to be noted that the Chief Judge of the Municipal Court nevertheless found as a fact that Mr. Audet had assaulted one of the police officers, but that an acquittal on that count was indicated since the police officer was not acting in the execution of his duties because of the illegality of the initial search of his premises. [ 17 ] Although not directly relevant to the subsequent charges against the respondents, it is ironic that the criminal charges against Mr. Audet arose out of events that preceded the respondents allegedly having falsified his signature on the authorization to search his premises.

C) Mr. Audet's complaint to the Quebec City Police Department [ 18 ] After his acquittal on November 27, 2001 but prior to the judgment of Bossé, J.C.Q. on December 17, 2003, Mr. Audet filed a

complaint with the Quebec City Police Department concerning the conduct of the respondents at his apartment on February 2, 2001, and in particular their having falsified his signature on the authorization to search his premises. After an internal investigation was carried out and submitted to the Chief Crown Prosecutor, he decided not to bring criminal charges against the respondents, and he so informed the Police Department on October 30, 2002.

D) Mr. Audet's private prosecution [ 19 ] Close to four years after the incident at his apartment in February of 2001, on January 14, 2005, Mr. Audet signed an information before a justice of the peace pursuant to

section 504 Cr.C . in which the respondents were charged with having, on February 2, 2001, used a forged document contrary to

section 368 Cr.C . and, on the same date, having obstructed justice contrary to

section 139 Cr.C. [9] A hearing at which the respondents were represented then took place on April 22, 2005 pursuant to subsection 507.1(1) Cr.C. before Larouche, J.C.Q. Mr. Audet testified, as did his handwriting expert. In addition, the transcripts of the proceedings in Mr. Audet's criminal and civil trials were produced and examined by the Quebec Court judge. [ 20 ] The Crown was also represented at the hearing, and its counsel, Mtre Jean Lortie, argued against the matter being pursued, based largely on Mr.

Audet's lack of credibility. [ 21 ] In a brief reasoned judgment rendered orally at the conclusion of the evidence and argument, Larouche, J.C.Q. nevertheless authorized the issuance of a summons against the respondents pursuant to subsection 507.1(2) Cr.C . for the two offences mentioned in the information. The transcript of the proceedings reveals that upon judgment being rendered, Mtre Lortie immediately rose and advised that a nolle prosequi would be filed "dans les minutes qui suivent".

And so it was, as Mtre Lortie signed and filed a stay of proceedings pursuant to subsection 579(1) Cr.C. on April 22, 2005. [ 22 ] One would have thought that would end matters once and for all. Mr. Audet, however, was not to deny himself another day in court.

E) Mr. Audet's motion to require the Crown to recommence proceedings [ 23 ] On April 13, 2006, a mere nine days prior to the one-year period from the filing of the stay of proceedings after which, without a recommencement of the proceedings, they are "deemed never to have been commenced", [10] Mr. Audet filed a motion in the Criminal Division of the Superior Court entitled "Requête en reprise de procedure".

The conclusions of the motion sought an order revising the Crown's decision to file the stay of proceedings and further ordering the issuance of a summons against the respondents charging them with the two counts of using a forged document and obstruction of justice that had been authorized by Larouche, J.C.Q. I note in passing that no such motion is contemplated in the Criminal Code , although the parties seemed to characterize it as a kind of certiorari with mandamus in aid. The Crown vigorously contested Mr.

Audet's motion. [ 24 ] In a lengthy oral judgment rendered on January 18, 2007, Beaulieu, J. dismissed Mr. Audet's motion, essentially since, from his perspective, it would be inappropriate to interfere with the exercise of the Crown's discretion. In the closing phase of his judgment, Beaulieu, J., in speaking of Mr. Audet while addressing his counsel, observed that "[V]otre client n'aura jamais justice dans sa tête. Et sans être ni médecin, ni psychologue, ni psychiâtre, il y a des choses qu'un juge au fil des ans et avec la compétence qu'il peut avoir, peut remarquer." [ 25 ] Needless to say, Mr.

Audet's next legal undertaking would be to head to the Court of Appeal, which is what he did.

F) Proceedings in the Court of Appeal [ 26 ] On March 15, 2007, Dutil, J.A. granted Mr. Audet leave to appeal the judgment of Beaulieu, J. [11] The motion by which leave was sought does not form part of the record in this Court, although I note, again in passing, that if the proceeding before Beaulieu, J. is properly characterized as a kind of certiorari with mandamus in aid, Mr. Audet enjoyed an appeal as of right pursuant to subsection 784(1) Cr.C . [ 27 ] Next, a panel of the Court was then called upon to consider a motion of Mr.

Audet for the introduction of indispensable new evidence in what, again, is an unusual circumstance. [ 28 ] In December of 2006, before the hearing of Mr. Audet's motion in the Superior Court that Beaulieu, J. later adjudicated, the Crown had solicited its own handwriting expertise of Mr. Audet's signature on the authorization he purportedly signed on February 2, 2001.

On June 28, 2007, the Crown received a lengthy report from Mylène Signori, a handwriting and document specialist in the employ of the Ministry of Public Security's medico-legal laboratory in Montreal, which concluded that the signature appearing on the authorization was not that of Mr. Audet, and that it had been forged. The Crown forwarded a copy of this report to Mr. Audet with a letter of transmission dated August 14, 2007. [ 29 ] On November 5, 2007, a panel of the Court heard Mr. Audet's motion to introduce the report from Ms.

Signori as new evidence and granted it. [12] [ 30 ] The Crown filed its factum in Mr. Audet's appeal on April 24, 2008, that is, after Ms. Signori's handwriting report that it had commissioned had been introduced into the record. In its factum, the Crown made no mention of this report. It characterized the issue before this Court as whether, with the proof and argument he heard, Beaulieu, J. had erred in his determination that Mr. Audet had not established that the Crown was guilty of a flagrant impropriety in the exercise of its discretion to stay Mr. Audet's criminal proceedings against the respondents.

[ 31 ] The hearing of Mr. Audet's appeal was fixed to proceed on October 9, 2008. According to the minutes of the hearing, Crown counsel advised the Court that the Crown had that very day filed its own charges against the respondents. After some back and forth discussion between the Court and counsel, the Court took cognizance of the new charges, and accordingly dismissed Mr. Audet's appeal as no longer having any further object. [13]

G) The new charges against the respondents [ 32 ] Unlike Mr. Audet's information that related to the conduct of the respondents on February 2, 2001, the Crown's charges related to their testimony at Mr. Audet's criminal trial on November 27, 2001 and his civil trial against the City of Quebec on September 25, 2003. They were thus each charged with two counts of perjury pursuant to

section 132 Cr.C (one for each of the two dates) and two counts of obstruction of justice pursuant to subsection 139(2) Cr.C ., also for each of the two dates.

H) Crown disclosure prior to the preliminary inquiry [ 33 ] After the respondents' initial appearance on October 31, 2008, the Crown began to comply with its obligatory disclosure process to them. [ 34 ] On December 1, 2008, the Crown gave the respondents' counsel the documents it had analyzed following Mr. Audet's filing of an information against them in January of 2005. These documents included the transcript of their testimony at Mr. Audet's criminal trial at which he was acquitted. On January 13, 2009, there followed the transcript of the respondents' testimony at Mr. Audet's civil trial before Bossé, J.C.Q.

The case was put over until March 12, 2009 at the request of the respondents' counsel in order to allow them time to examine the materials thus received, which they characterized as voluminous. [ 35 ] In the meantime, the respondents' counsel sought the disclosure of other documents, namely the entirety of the transcripts of testimony at both the criminal and civil trials, which were finally transmitted on April 15 2009, thus generating another continuance to May 4, 2009. On that date, a new Crown counsel solicited a further delay in order to carry out certain verifications.

I) The respondents' preliminary inquiry [ 36 ] On May 22, 2009, the respondents opted to be tried by a judge and jury, thus necessitating a preliminary inquiry, which was fixed to proceed on October 26, 2009. For reasons that are highly unusual, however, the preliminary inquiry in the Court of Quebec came to an abrupt halt without any testimony having been heard. [ 37 ] Crown counsel called Mr. Audet as the first witness. He had met Mr. Audet the previous day to prepare for the hearing. Initially, Mr. Audet did not appear in court on time, but he eventually presented himself.

After being sworn, he was asked an introductory question, but he refused to answer, explaining to Cyr, J.C.Q. that he had lost confidence in Crown counsel's ability to prosecute the case properly as the result of his meeting with him the previous day. The judge's entreaties to Mr. Audet to testify were to no avail. Crown counsel also expressed his concern about his ability to continue before the judge since Mr.

Audet had threatened him with a disciplinary complaint to the Bar. [ 38 ] After giving due consideration to the matter, Cyr, J.C.Q. authorized Crown counsel to be replaced, which entailed a postponement of the preliminary inquiry to December 7, 2009. The respondents were cited to trial the next day, and subsequently re- opted to be tried by a judge alone.

J) Events subsequent to the preliminary inquiry [ 39 ] On December 10, 2009, counsel for the respondents sought the disclosure of the police investigation of a case in 1987 in which Mr. Audet had pleaded guilty to a criminal offence. Mr. Audet had been cross-examined on this conviction at the respondents' preliminary inquiry.

On March 29, 2010, the respondents' counsel were informed that the file in question had been destroyed in accordance with existing policies on that subject. [ 40 ] The respondents' counsel requested a continuance of the matter on February 18, 2010 in order to allow them time to prepare a motion to stay proceedings, and the matter was accordingly put over to April 6, 2010. [ 41 ] Prior to receiving the information mentioned in paragraph [39] that Mr.

Audet's 1987 criminal file had been destroyed, on March 25, 2010, the respondents' counsel sought the disclosure of data and documents that would have been created when Mr. Audet was brought to the police station on February 2, 2001. Only one of the requested materials was still in existence, and it was eventually disclosed to the respondents' counsel. [ 42 ] On April 6, 2010, one of the respondents' counsel withdrew from the file, with the case then being continued to April 16, 2010, at which time they requested a further continuance to April 30, 2010.

The basis for the postponement was related to disclosure issues, but they were eventually resolved.

K) The first motion for a stay of proceedings and judgment thereon [ 43 ] On May 6, 2010, the respondents filed a motion for a stay of proceedings based on

section 7 and paragraph 11(

b) of the Canadian Charter , which came on for hearing on July 6, 2010 before the judge of the Court of Quebec designated as the trial judge, Couture, J.C.Q. On October 1, 2010, he dismissed their motion. [ 44 ] In doing so, Couture, J.C.Q. declined to take account of the delays that were occasioned prior to the Crown having filed its own charges in October of 2008. He distinguished those that Mr. Audet filed in 2005 that related to the events that occurred in February of 2001 from those that the Crown filed that related to the respondents' testimony at the criminal and civil trials of Mr. Audet in November

of 2001 and September of 2003 respectively. [ 45 ] Proceeding then to analyze the delays that were incurred subsequent to October of 2008, Couture, J.C.Q. first observed that the inherent complexity of the facts, the expert and documentary evidence and the time necessary for the conduct of the preliminary inquiry were the source of preparatory delays. He also characterized the additional six-week delay brought about by Mr. Audet having succeeded in having the Crown prosecutor replaced at the preliminary inquiry as an "other" delay within the meaning attributed to that term by the Supreme Court of Canada in R. v.

Morin . [14] [ 46 ] With respect to delays attributable to the Crown's disclosure, Couture, J.C.Q. acknowledged that the Crown could have been more diligent, but did not ascribe the entirety of the blame to it, inferring that some of these delays were occasioned by tardy requests for disclosure. In short, he found that delays were always inherent in the production of documents or any request from an accused. [ 47 ] Couture, J.C.Q. also concluded that the respondents had not established that the delays incurred since the filing of the charges in 2008 were the source of prejudice to them.

While acknowledging that certain elements of proof that they sought to obtain were no longer available because they had been destroyed in the normal course of events, he noted that their destruction was not caused by any delays subsequent to the filing of the charges in October of 2008. [ 48 ] Finally, Couture, J.C.Q. refused to consider the delays prior to the charges in October of 2008 as being the proper source of a claim based on abuse of process contrary to

section 7 of the Canadian Charter .

L) The unexpected recusal of Couture, J.C.Q. [ 49 ] The trial was thus scheduled to begin on October 12, 2010. Instead, yet another surprising event occurred that derailed its commencement. [ 50 ] When they appeared before Couture, J.C.Q., all counsel requested permission to make representations in camera to discuss what they described as a delicate matter. It concerned a letter Mr. Audet had sent Crown counsel after the judgment of Couture, J.C.Q. dismissing the respondents' motion for a stay of proceedings. Crown counsel quite properly felt obliged to share its contents with the respondents' counsel.

The content of the letter was never put on the record in the Court of Quebec, although there was initially some suggestion it would be sealed and filed. In the end, however, the trial judge ordered otherwise, and thus the letter forms no part of the record in this appeal. Its contents are thus unknown to the members of the panel hearing the appeal. [ 51 ] Nevertheless, after having taken cognizance of the letter, whatever its content may have been, it was sufficiently bothersome to Couture, J.C.Q. that he considered it could potentially influence his opinion of Mr.

Audet's credibility. [ 52 ] Upon the completion of counsel's representations, Couture, J.C.Q. adjourned to consider what to do, and without the Crown or the respondents applying to recuse him, he returned and said this: Alors d'une part, madame, vous allez remettre ce document-là à Maître Bélanger, il ne fera pas partie, il ne sera pas déposé. Alors ceci étant, j'ai donc, effectivement, pris connaissance de la teneur. Je dois vous dire que j'apprécie énormément que vous me fassiez confiance et en ce qui me concerne, je dois vous dire et je le répète, on ferait pas beaucoup de millage là-dessus.

Ceci étant, l'aspect est quant à une saine administration de la justice et quant à non pas que justice soit rendue mais apparence de justice. Peu importe la décision que le Tribunal rendrait en instance, elle pourrait toujours être critiquée ou critiquable, dans l'éventualité où ce serait soit l'acquittement ou la déclaration de culpabilité. Je trouve cette situation fort déplorable, je dois dire que je constate que les accusés n'ont rien à se reprocher et donc, je vais me récuser.

On comprendra que ça implique, des délais, je le répète, il m'est impossible de constater que les accusés ont quelque chose à voir dans cette saga. [ 53 ] As the result of the trial judge's recusal, on October 29, a new trial date was set for May 10, 2011, at which time the respondents presented their second motion for a stay of proceedings before the new trial judge, Côté, J.C.Q.

M) The second motion for a stay of proceedings and judgment thereon [ 54 ] For the second motion, the appellants limited their attack to a violation of their right to be tried within a reasonable delay contrary to paragraph 11(

b) of the Canadian Charter . Since it will be seen that the judgment of Côté, J.C.Q. contains a certain number of minor inaccuracies insofar as the dates of events and proceedings are concerned subsequent to the filing of the charges in October of 2008 are concerned, I propose to identify them immediately.

Given the conclusion at which he arrived to grant the stay of proceedings, however, these inaccuracies had no obvious bearing on the outcome. [ 55 ] In paragraph [43] of his judgment, Côté, J.C.Q. writes that the respondents' last request for disclosure was on March 25, 2009, when in fact the request came one year later on March 25, 2010. [ 56 ] In paragraph [51], he states that after the respondents were committed to trial following their preliminary inquiry, the trial date

was set for February 18, 2010. In fact, the latter date was when the eventual trial date would be fixed, not the trial date itself. [57] With respect to the hearing on February 18, 2010, he notes in paragraph [53] that since the Crown's disclosure was notcomplete, the case was put over to April 6, 2010. In fact, this continuance was requested by the respondents to allow them time tocomplete their motion for a stay of proceedings. [58] Finally, Côté, J.C.Q. says at paragraph [54] that the case was postponed on April 6, 2010 because of the arrival on the scene ofa new Crown counsel.

In fact, it was a new defence counsel for the respondent Gilbert Gagnon. [59] The major difference between the earlier judgment of Couture, J.C.Q. and that of Côté, J.C.Q. deals with when the clock beganto run for the purposes of a claim based on unreasonable delay: from the initiation of Mr. Audet's private prosecution in January of 2005or that of the Crown in October of 2008. [60] Contrary to the conclusion of his colleague, Côté, J.C.Q. opted for the former date rather than the latter one.

In his view, thestarting point of the calculation to determine whether an accused had been tried within a reasonable delay, as stated by McIntyre, J. forthe majority of the Supreme Court of Canada in R. v. Kalanj,[15] "[…] will commence with the information or indictment…and willcontinue until the completion of the trial".[16] Relying on the reasons of Lamer, J., as he then was, in an earlier Supreme Court judgmentin R. v.

Carter,[17] he considered that situations could arise in which it was necessary to take account of delays that had occurred prior tothe charges that were the subject of the claim based on paragraph 11(b). Here is the passage in question from Carter: As I have indicated in Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863, which has been handed down this same day, thetime frame to be considered in computing trial within a reasonable time generally runs only from the moment a person is charged.

Inpassing, I might add that I say "generally" because there might be exceptional circumstances under which the time might run prior to theactual charge on which the accused will be tried. As an example, if the Crown withdraws the charge to substitute a different one but forthe same transaction, the computation of time might well commence as of the first charge.[18] [My underlining.] [61] Côté, J.C.Q. thus considered himself justified to take account of the period of time beginning with Mr.

Audet's filing of theinformation against the respondents on January 14, 2005 for which the issuance of a summons was later authorized on April 22, 2005.From the perspective of the delay between January of 2005 and the trial that should have started in May of 2010, Côté, J.C.Q. had nodifficulty in characterizing it as exceptionally long, thus requiring an assessment of the reasons for the delay. [62] Although he shared the view of Couture, J.C.Q. that this type of case required a certain amount of time to prepare because of theneed for handwriting expertise, he did not consider the case was particularly complex, or that it required an exceptional amount of time toprepare for trial.

He also attributed certain delays to the respondents due to their numerous disclosure requests, and characterized the six-week delay in the holding of the preliminary inquiry due to Mr. Audet refusing to answer questions from Crown counsel to be "other"delays for the purpose of paragraph 11(

b) of the Charter. [63] With respect to the delays brought about by the recusation of Couture, J.C.Q., he also considered them "other" delays becausethey were caused by Mr. Audet.

He was nevertheless critical of the Crown in having delayed to obtain its own handwriting expertise,and then having delayed over 15 months to file charges against the respondents on a timely basis after receiving that expertise fromMylène Signori dated June 28, 2007. [64] Although he rejected the respondents contention that they were prejudiced by the destruction of evidence that would have beenhelpful in their defence, since the destruction had occurred prior to the first set of charges that were authorized in April of 2005,Côté, J.C.Q. nevertheless held that the passage of time since 2005 meant that witnesses would have greater difficulty in rememberingevents that went back to February of 2001.

This factor would therefore hinder the respondents' ability to present their defence andrepresented a prejudice to them. [65] The respondents' motion was accordingly granted and a stay of proceedings entered. IIIISSUES [66] There are only two questions.

(1) What is the proper starting point to calculate the claim of unreasonable delay?

(2) Were the delays that occurred after that starting point unreasonable so as to justify a stay of proceedings? IVANALYSIS AND DISCUSSION

(1) What is the proper starting point to calculate the claim of unreasonable delay? [67] In light of the comment of Lamer, J. that I have reproduced in paragraph [60] that suggests there may be "exceptionalcircumstances" permitting a court to take account of delays that have occurred prior to the charge on which an accused is being tried, it isimportant to situate those remarks in the context of the judgment in which it was rendered, R. v. Carter,[19] and the Court's subsequent

judgment in R. v. Kalanj.[20] [68] In Carter, the precise issue was whether the delay between the occurrence of the alleged offence on April 3, 1980 and thelaying of the information against the accused on January 28, 1983 could be taken into account for the purpose of a paragraph 11(b)Charter challenge.

A provincial court judge in Vancouver held that while the police had not been negligent in bringing the chargesbecause of the unavailability of one of the alleged victims, he nevertheless considered the intervening delay to be "totally unreasonable"and accordingly ordered a stay of proceedings. [69] A judge of the Supreme Court of British Columbia, McKay, J., granted the Crown's application for certiorari, quashed the stayof proceedings and ordered the provincial court judge to conduct the accused's preliminary inquiry.[21] The British Columbia Court ofAppeal affirmed that order,[22] albeit for slightly different reasons.

The Supreme Court, for the reasons of Lamer, J., dismissed theaccused's appeal.

In proposing the dismissal of the appeal, Lamer, J. made it clear that there were no exceptional circumstances prior tothe laying of the information that could justify the provincial court judge's order. [70] He nevertheless went on to express his disagreement with one aspect of the reasons of McKay, J. to the effect that pre-information delay might have some bearing on assessing the reasonableness of post-charge delay: […]This is because prior to the charge, the liberty of the individual will not be subject to restraint nor will he or she stand accused beforethe community of committing a crime.

Thus, those aspects of the liberty and security of the person which are protected by s. 11(b) (asopposed to those other aspects of the liberty and security of the person which are protected through s. 7 and s. 11(d)) will not be placed injeopardy prior to the institution of judicial proceedings against the individual. Hence, pre-charge delay is irrelevant to those interestswhen they are protected by s. 11(b). The only period of time which may properly be considered in assessing whether or not a violation of s. 11(

b) has occurred is that periodrunning from January 28, 1983 to May 6, 1983, the date on which the inquiry into the reasonableness of the delay began. Only 3½months had elapsed and the applicant has not suggested that this time span was in violation of s. 11(b). It is obvious that the applicantwas relying on the pre-charge delay; in any event, most of the post-charge delay was with the accused's consent, indeed a good part of itwas at his own request.[23] [Emphasis added.] [71] In Kalanj, the accused were arrested without warrant on May 5, 1982 following an extensive police investigation for suspicionof theft.

They were fingerprinted, placed in cells but released the same day, and told not to leave the city, as charges would be laid againstthem. Their arrest at their workplace apparently generated considerable adverse publicity and embarrassment to them. [72] The accused were charged in an information over eight months later on January 14, 1983. Following a series of continuances,their preliminary inquiry was conducted in April of 1984, after which, later that month, they were committed to stand trial.

At theopening of their trial on February 4, 1985, and before entering a plea, they applied to quash the indictment by invoking unreasonabledelay based on paragraph 11(

b) of the Charter. The trial judge in the County Court granted their application based on the delay incurredfrom their initial arrest on May 5, 1982 and the laying of the information against them on January 14, 1983.[24] [73] On behalf of the Court's majority (together with La Forest and L'Heureux-Dubé, JJ.), McIntyre, J. held that the pre-chargedelays to which the accused had been subject could not be considered in the context of their paragraph 11(

b) Charter application. Henoted, for example, that courts "have generally concluded that a person is charged with an offence within the meaning of s. 11 of theCharter when an information has been sworn which constitutes an initiating step in court proceedings."[25] He went on to distancehimself from the remarks of Lamer, J. in Carter on which Côté, J.C.Q. relied, and expressed disagreement with the holding of themajority in R. v. Mackintosh[26] that the word "charged" has a flexible meaning that varies with the circumstances of the case.

Hisconclusion was to this effect: I would therefore hold that a person is "charged with an offence" within the meaning of s. 11 of the Charter when an information issworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn. It would follow,then, that the reckoning of time in considering whether a person has been accorded a trial within a reasonable time under s. 11(

b) willcommence with the information or indictment, where no information has been laid, and will continue until the completion of the trial: seeR. v. Rahey, (SCC), [1987] 1 S.C.R. 588, at p. 633, where La Forest J. said: The question of delay must be open to assessment at all stages of a criminal proceeding, from the laying of the charge to the rendering ofjudgment at trial. [Emphasis added.] and see, as well, Argentina v.

Mellino, (SCC), [1987] 1 S.C.R. 536, at p. 548, where the same judge said: It gives a Charter remedy for delay when a prosecution has been initiated. [Emphasis added.] Pre-information delay will not be a factor.[27] [74] The justification for this approach emerges from the following extract: […]

Section 11 affords its protection after an accused is charged with an offence. The specific language of s. 11 should not be ignoredand the meaning of the word "charged" should not be twisted in an attempt to extend the operation of the

section into the pre-chargeperiod. The purpose of s. 11(

b) is clear. It is concerned with the period between the laying of the charge and the conclusion of the trialand it provides that a person charged with an offence will be promptly dealt with. The length of the pre-information or investigatory period is wholly unpredictable. No reasonable assessment of what is, or is not, areasonable time can be readily made. Circumstances will differ from case to case and much information gathered in an investigationmust, by its very nature, be confidential. A court will rarely, if ever, be able to fix in any realistic manner a time limit for the

investigation of a given offence. It is notable that the law - save for some limited statutory exceptions - has never recognized a timelimitation for the institution of criminal proceedings. Where, however, the investigation reveals evidence which would justify theswearing of an information, then for the first time the assessment of a reasonable period for the conclusion of the matter by trial becomespossible. It is for that reason that s. 11 limits its operation to the post-information period.

Prior to the charge, the rights of the accused are[page1610] protected by general law and guaranteed by ss. 7, 8, 9 and 10 of the Charter.[28] [75] Referring specifically to the outcome in Carter, McIntyre, J. said this: I acknowledge that in taking this position it may be said that I am departing from the earlier judgments of this Court which have said thatthere will be exceptional cases where pre-charge delays will be relevant under s. 11(b). In my view, however, the departure is moreapparent than real.

The exception referred to by Lamer J. in Carter — where two indictments are preferred because of successful appealsafter a first trial — has been dealt with in R. v. Antoine (1983), (ON CA), 5 C.C.C. (3d) 97 (Ont. C.A.), and Re Gartonand Whelan (1984), (ON SC), 14 C.C.C. (3d) 449 (Ont. H.C.) These cases support the proposition that pre-chargedelay is not relevant under s. 11(b), by holding that the time commences to run from the date the original information was sworn.

It has been considered that special circumstances could arise which, in the interests of justice, would require some consideration of pre-charge delay because of prejudice which could result from its occurrence. In my view, however, the exceptional cases should be dealtwith by reliance on the general rules of law and, where necessary, the other sections of the Charter. This approach would take account ofand meet the concerns caused by the possibility of pre-charge delays.

Delays which occur at the pre-charge stage are not immune fromthe law outside the scope of s. 11(b). […] In addition, given the broad wording of s. 7 and the other Charter provisions referred to above, it is not, in my view, necessary to distortthe words of s. 11(

b) in order to guard against a pre-charge delay. In my view, the concerns which have moved the Court to recognize thepossibility of special circumstances which would justify a consideration of pre-charge delay under s. 11(

b) will thus be met. In the case at bar, both the courts below considered that the post-charge delays were not such that they could be said to deprive theappellants of trial within a reasonable time. I am in agreement with this finding. The trial judge, however, considered the pre-chargedelay of some eight months and concluded that it was unreasonable and upon that conclusion found that s. 11(

b) had been infringed. Inthis, I, in agreement with the Court of Appeal, consider that he was in error. I would accordingly dismiss the appeals.[29] [76] Lamer and Wilson, JJ. wrote separate dissenting reasons in which they would have allowed the appeals of the accused andordered a stay of proceedings. Their view was that "charged" within the meaning of subsection 11(

b) of the Charter should extend to themoment of arrest. As Wilson, J. put it succinctly: I believe that if s. 11(

b) is designed to protect the liberty and security interests of the accused, and I think it is, then the relevant startingpoint for the running of time under the

section should not be upon the ex parte laying of the information before the justice of the peacebut rather when the impact of the criminal process is felt by the accused through the service of process upon him in the form of asummons or notice of appearance or an arrest with or without a warrant. This flexible approach to s. 11(

b) seems to me most adequatelyto give effect to the obvious purpose of the provision.[30] [77] The result of the foregoing is clear. Pre-charge delays may be considered in the context of

section 7 of the Charter and thegeneral rules of law, but not under paragraph 11(b). The respondents' application for a stay of proceedings that Côté, J.C.Q. adjudicatedinvokes paragraph 11(

b) exclusively. I note as well that Couture, J.C.Q. rejected the respondents' claim of pre-charge violation of theirsection 7 rights. [78] Finally, Côté, J.C.Q. made no reference to the majority reasons of McIntyre, J. in Kalanj in his judgment, and relied instead onthe obiter comment of Lamer, J. in Carter. In doing so, with respect, he erred.[31] [79] Therefore, the proper date to consider in assessing whether there has been unreasonable delay within the meaning of paragraph11(

b) in this case is when the Crown filed the charges for which the respondents now stand to be tried, that is, October 9, 2008. [80] I would also note that the example given by Lamer, J. in Carter that might constitute an "exceptional circumstance", that is, thewithdrawal of one set of charges and their substitution by other charges "for the same transaction" would not be applicable in this case.Counsel for the respondents correctly acknowledged at the hearing that if the Crown had charged them and they were found guilty of theoffences set out in the summons Larouche, J.C.Q. authorized[32] and those with which the Crown actually charged them,[33] theKienapple rule against multiple convictions arising out of the same circumstances[34] would not be applicable.

(2) Were the delays that occurred after that starting point unreasonable so as to justify a stay of proceedings? [81] Côté, J.C.Q. took account of the incorrect date in law as the starting point to determine the outcome of the motion with which hewas seized. Since this constitutes an error of principle, I cannot apply the usual deference that ought to be shown in appeal to the analysisof a trial judge as to the reasonable or unreasonable character of the delay. [82] The Crown concedes that the delay of 31 months from the filing of its charges on October 9, 2008 until the date of hearing on

May 10, 2011 of the respondents' second motion for a stay of proceedings dated April 20, 2011 before Côté, J.C.Q. is "préoccupant". Itargues, however, that the delay is largely not of its own making, and that the respondents have not succeeded in establishing a prejudicebeyond that which any person accused of a crime is bound to experience. [83] On behalf of the majority in R. v. Morin,[35] Sopinka, J. examined the approach to be taken when judges are confronted with aparagraph 11(

b) Charter application: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, [R. v. Smith, (SCC), [1989] 2 S.C.R. 1120] "[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay becomeunreasonable?"(p. 1131). While the Court has at times indicated otherwise, it is now accepted that the factors to be considered inanalyzing how long is too long may be listed as follows: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. [84] In order to characterize the delays in this case properly, it is useful to recall how Sopinka, J. explained what they meant, takinginto account the practical realities of the conduct of a criminal trial. The case law in the Supreme Court and elsewhere in Canada haveconsistently applied these principles since Morin. [85] As far as inherent delays are concerned, he said this: All offences have certain inherent time requirements which inevitably lead to delay. Just as the firetruck must get to the fire, so must acase be prepared.

The complexity of the trial is one requirement which has often been mentioned. All other factors being equal, themore complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins. For example,a fraud case may involve the analysis of many documents, some conspiracies may involve a large number of witnesses and other casesmay involve numerous intercepted communications which all must be transcribed and analyzed. The inherent requirements of such caseswill serve to excuse longer periods of delay than for cases which are less complex.

Each case will bring its own set of facts which mustbe evaluated. Account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote theirtime exclusively to one case.

The amount of time that should be allowed counsel is well within the field of expertise of trial judges.[36] [Emphasis added.] [86] He further described preparatory delays that form a part of inherent delays in the following manner: As well as the complexity of a case, there are inherent requirements which are common to almost all cases. […] Whatever one wishesto call these requirements, they consist of activities such as retention of counsel, bail hearings, police and administration paperwork,disclosure, etc.

All of these activities may or may not be necessary in a particular case but each takes some amount of time. As thenumber and complexity of these activities increase, so does the amount of delay that is reasonable. Equally, the fewer the activitieswhich are necessary and the simpler the form each activity takes, the shorter should be the delay. […][37] [87] Delays attributable to the accused were described thusly: This aspect of the reasons for the delay should not be read as putting the "blame" on the accused for certain portions of delay.

There isno necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken bythe accused which may have caused delay. In this

section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which donot amount to waiver, attacks on search warrants, etc.

I do not wish to be interpreted as advocating that the accused sacrifice allpreliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into accountin determining what length of delay is reasonable.[38] [Emphasis added.] [88] He then went on to give as an example of such delays cases in which an accused applied for a change of venue, a change ofcounsel and the right to re-elect trial by judge alone, as well as circumstances where an accused's decision to convert a scheduled trial in

a provincial court to a preliminary inquiry in order to have his trial in a different court occasioned additional delay.[39] Similar factors,adapted to the differing roles of the Crown and the accused, were then found to apply to the Crown insofar as delays attributable to itwere concerned, all the while without attribution of "blame", but as recognition of the cause of the delay.[40] [89] Sopinka, J. then noted that institutional delays "are the most common source of delay and the most difficult to reconcile withthe dictates of s. 11(

b) of the Charter", and described this as "the period that starts to run when the parties are ready for trial but thesystem cannot accommodate them." Given the institutional factors that led to the Court's judgment in Askov,[41] in which such extensivedelays formed the basis of a stay of proceedings pursuant to paragraph 11(

b) of the Charter, Sopinka, J. decried the criminal justicesystem's inability to act with greater celerity. His realistic reaction, uttered 21 years ago, remains true today: In Utopia this form of delay would be given zero tolerance. There, resources would be unlimited and their application would beadministratively perfect so that there would be no shortage of judges or courtrooms and essential court staff would always be available. Unfortunately, this is not the world in which s. 11(

b) was either conceived or in which it operates. We live in a country with a rapidlygrowing population in many regions and in which resources are limited. In applying s. 11(b), account must be taken of this fact oflife.[42] [90] In this particular case, there are of course institutional delays, given the respondents' option to submit to a preliminary inquiry,followed by a re-election to be tried by judge alone.

Although such delays must naturally be taken into account in the necessarybalancing of the various factors of delay, the respondents, quite properly, do not complain that a lack of resources in the District ofQuebec is the source of the institutional delays in their case. [91] The next consideration to be taken into account is that of other reasons for the delay. Sopinka, J. described them in this manner: There may be reasons for delay other than those mentioned above, each of which should be taken into consideration.

As I have been atpains to emphasize, an investigation of unreasonable delay must take into account all reasons for the delay in an attempt to delineatewhat is truly reasonable for the case before the court. One such factor which does not fit particularly well into any other category ofdelay is that of actions by trial judges. An extreme example is provided by Rahey, supra.[R. v. Rahey, [1987] 1 S.C.R. 587] In that caseit was the trial court judge who caused a substantial amount of the delay. Nineteen adjournments over the course of 11 months wereinstigated by the judge during the course of the trial.

Such delay is not institutional in the strict sense. Nevertheless, such delay cannotbe relied upon by the Crown to justify the period under consideration. Other delays that have not been mentioned may weigh against the accused, but in most cases delays will weigh against the Crown for thesame reason as was discussed in the above example.[43] [92] In this case, the only such delays are those brought about by Mr.

Audet having caused delays: first, in the holding of thepreliminary inquiry; and, second, the conduct of the trial before Côté, J.C.Q. following the recusal of Couture, J.C.Q. [93] The final factor is prejudice to the accused resulting from the delays encountered in their prosecution. [94] Not all delays that may be characterized as unreasonable will result in a stay of proceedings. As Sopinka, J. observed in Morin: […], in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such aninference will be drawn.

In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement ofthe individual right is seriously undermined.[44] [Emphasis added.] [95] As far as actual evidence of prejudice is concerned: Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. Forexample, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration orrestrictive bail conditions.

Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage toreputation as a result of overlong exposure to "the vexations and vicissitudes of a pending criminal accusation", to use the words adoptedby Lamer J. in Mills, supra, at p. 919. [Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863]. The fact that the accusedsought an early trial date will also be relevant. Evidence may also be adduced to show that delay has prejudiced the accused's ability tomake full answer and defence.

Conversely, the prosecution may establish by evidence that the accused is in the majority group who do not want an early trial and thatthe delay benefited rather than prejudiced the accused. Conduct of the accused falling short of waiver may be relied upon to negativeprejudice. As discussed previously, the degree of prejudice or absence thereof is also an important factor in determining the length ofinstitutional delay that will be tolerated.

The application of any guideline will be influenced by this factor.[45] [Emphasis added.] [96] How then do these principles of the factors to determine what constitutes unreasonable delay and the kind of prejudice thatwould lead to a stay of proceedings apply to the circumstances of this case? [97] I would break down the 31 months of delay in the manner most favourable to the respondents as follows:

A) Inherent delays: 123 days, or, approximately 4 months

B) Accused delays: 105 days, or approximately 3.5 months

C) Crown delays: 75 days, or approximately 2.5 months

D) Institutional delays: 388 days, or approximately 13 months

E) Other delays: 252 days, or approximately 8.5 months TOTAL: 943 days, or approximately 31 months [ 98 ] The inherent and institutional delays, such as those relating to the time when on May 6, 2010 the trial date was fixed and the date fixed for the trial on July 6, 2010 (61 days), and the duration of time between when Couture, J.C.Q. heard the respondents' initial motion for a stay of proceedings on July 6, 2010 and he rendered judgment on October 1, 2010 (87 days) are entirely reasonable. None of the other such delays fall out of the ordinary.

They would not otherwise attract adverse attention. [ 99 ] The delays attributable to the respondents that total 3.5 months are also not unreasonable, especially as they relate to disclosure requests and the review of disclosed materials. There were other delays occasioned by the request for a postponement to prepare the second motion for a stay of proceedings (47 days, from February 18, 2010 until April 6, 2010) and the absence of counsel for Mr.

Gagnon (10 days, from April 6, 2010 until April 16, 2010), but again, nothing that falls out of the ordinary or that would otherwise attract attention. [ 100 ] As for the Crown, its delays of 75 days essentially relate to responding to disclosure requests, some of which required the preparation of transcripts of proceedings from the civil and criminal trials of Mr. Audet. Here again, there is nothing particularly unusual. [ 101 ] What does stand out, however, are the 252 days or 8.5 months of other delays, all of which are attributable to the Crown's complainant and alleged victim, Mr. Audet.

These delays consist of two circumstances. [ 102 ] The first is the 42 days between October 26, 2009 and December 7, 2009 brought about by Mr. Audet's threat to launch a disciplinary complaint against the Crown counsel assigned to the case in whom he claimed to lack confidence (as if that mattered, which it does not) and his consequential refusal to testify at the respondent's preliminary inquiry.

The result was the decision of the preliminary inquiry judge to acquiesce to Crown counsel's request to allow him to withdraw from the file and be replaced by a colleague at a later date. [ 103 ] The second is the 210 days between the recusal of Couture, J.C.Q. on October 12, 2010 until May 10, 2011 when the trial of the respondents began before Côté, J.C.Q. with the presentation of their second motion for a stay of proceedings. [ 104 ] This total delay of 8.5 months should never have happened.

In saying so, I am not to be taken as being critical in any way of the two judges whose decisions brought it about. [ 105 ] At the preliminary inquiry, even if Cyr, J.C.Q. had insisted on proceeding despite Mr. Audet's refusal to testify, it is apparent that the Crown, upon a dismissal of the charges for lack of evidence, would have been free to lay the same charges again, and to have different counsel act on its behalf at another preliminary inquiry. In effect, no time was lost because of the decision of Cyr, J.C.Q. Rather, it was the reason for the decision – Mr.

Audet's uninformed and pretentious belief that he could somehow control the conduct of the Crown's case – that led to the delay. [ 106 ] Mr. Audet's conduct that led to Couture, J.C.Q. recusing himself, whatever it was, is equally blameworthy. The record in this Court is bare as to the content of the letter Mr. Audet sent to Crown counsel that led him to share it with defence counsel and ultimately Couture, J.C.Q., nor did either counsel provide any further explanations at the hearing. Whatever that content may have been, at least two things are clear.

First, the Court has no basis to doubt the correctness of the decision of Couture, J.C.Q. to recuse himself, and neither counsel before us suggested otherwise. Moreover, the decision of so experienced a trial judge on such a matter can hardly be called into question. Second, as Couture, J.C.Q. himself remarked when he announced his decision to recuse himself, the respondents were not at all to blame for what had transpired. [ 107 ] In my view, that additional 8.5 month delay tipped the balance to make the actual 31-month delay an unreasonable one in the context of paragraph 11(

b) of the Charter . Had Mr. Audet's unjustified insinuation into the process not occurred, the delay from the date when the charges were laid on October 9, 2008 until the commencement of a trial would have been reduced accordingly. Instead, we would be examining a timeframe of less than two years from the charges being filed and a date for trial, which in the circumstances could not be considered unreasonable. [ 108 ] As Sopinka, J. observed in Morin in the passage I quoted at paragraph [91], other delays of the type that occurred in Rahey were attributed to the trial judge for his management of the trial.

In most cases, as Sopinka, J. went on to say, "in most cases such delays will weigh against the Crown." In Rahey , they resulted in the Supreme Court restoring a judgment of the Supreme Court of Nova Scotia that had ordered a stay of proceedings based on paragraph 11(

b) of the Charter . [ 109 ] I appreciate that the Crown is in all likelihood no fan of Mr. Audet, and that it does not for an instant condone his conduct. That being said, the Crown in my view should bear the consequences of Mr. Audet's conduct. He would be an essential witness at any trial that might be held. Without his presence, the Crown might well face insurmountable obstacles in the presentation of its case. Just as a trial judge's mismanagement of a case was attributable to the Crown in the context of a paragraph 11(

b) Charter challenge in Rahey , so too should that of Mr. Audet be attributable to the Crown in this case, albeit without any blame on its part. [ 110 ] I therefore consider the respondents to have established the unreasonableness of the delay between October 9, 2009 and May 10, 2011. There remains the question of a resulting prejudice to them, within the framework I set out from the extracts in Morin reproduced at paragraphs [94] and [95] .

[ 111 ] At the outset, the respondents' liberty interest has never been at stake as they have never been confined while awaiting trial.

I also note that the respondents have never conducted themselves with a view to delaying the trial, and have derived no benefit from the delay. [ 112 ] Nevertheless, they contend that their right to make a full answer and defence and their security interest have been compromised by the delay. [ 113 ] Their contention relating to the conduct of their defence hinges in part on their agreement with Côté, J.C.Q. that the starting point for the determination of the delay began in 2005, and not in 2008.

In that respect, Côté, J.C.Q. had found that the destruction of evidence they would have wanted to use in their defence occurred prior to 2005. That, of course, is all the more so when the proper starting point is 2008. [ 114 ] It is not suggested, nor could it be, that the destruction of this evidence occurred in anything but the normal course of events, without any intention to impair a defence on charges that had not yet been filed. [ 115 ] Three elements of evidence that the respondents would have wanted to use were so destroyed. They are: • the police file relating to Mr.

Audet's guilty plea to charges of assault for which he pleaded guilty in 1987; • the data on the magnetic cards the respondents used at the police station on the evening of Mr. Audet's arrest in 2001; • the audio-visual recording of events that occurred that same evening in the cell block where Mr. Audet was detained after his arrest. [ 116 ] As far as the file relating to Mr. Audet's guilty plea for assault in 1987 is concerned, the only perceived purpose would be to challenge his credibility and perhaps add verisimilitude to the legitimacy of N.

B.'s complaint on February 2, 2001 that he was in the midst of assaulting her. [ 117 ] Mr. Audet's credibility has already been seriously undermined by his conduct on the evening of February 2, 2001 and thereafter, as the Crown has acknowledged throughout. It is hard to imagine how an event that transpired in 1987 could be of much assistance to the defence of the charges against the respondents. In any event, Mr.

Audet can be cross-examined on this subject if the respondents' counsel so choose. [ 118 ] The respondents also argue that the data on the magnetic cards they used at the police station on the evening of Mr. Audet's arrest would demonstrate that neither of them would have left the premises during the relevant time he was there. This is said to be important because it would debunk the notion that the respondent Gagnon, who was a patient of Mr. Audet's medical practice, could have returned home to obtain a specimen signature on pharmaceutical prescriptions that he had provided him.

Even if this is so, there may have been another occasion when either one of the respondents, in theory at least, could have obtained such a specimen, such as when they first attended at Mr. Audet's apartment to inquire into the whereabouts of N. B.. [ 119 ] That being said, the Crown has the burden to establish beyond a reasonable doubt not only that Mr.

Audet did not sign the authorization to search his premises, but that the respondents knew he had not signed it when they testified on November 27, 2001 and September 25, 2003 that they saw him do so. [ 120 ] The respondents also assert that the missing audio-visual recording would have shown that Mr. Audet was the author of incoherent scrawled markings on a police form in the record, which he has denied. These markings, the respondents say, would facilitate establishing a link between that document and the characteristics of his signature on the document the Crown contends is forged that led Mr.

Audet's expert and that of the Crown to conclude that it was forged. [ 121 ] Even without this evidence, which undoubtedly would also have been helpful to establish Mr. Audet's frame of mind and mental acuity that evening, the respondents' counsel can still make use of the content of this form amongst the array of questions they will likely put to Mr.

Audet when they cross-examine him. [ 122 ] With respect to the prejudice generated by the lapse of time from the underlying events that occurred in February of 2001 and the difficulties that might be expected of witnesses remembering events accurately so many years later, the transcripts of the civil and criminal trials of Mr.

Audet in the Court of Quebec are available and will surely assist witnesses in recalling their memory of what happened at that time. [ 123 ] With respect to prejudice to the respondents' security interest, Côté, J.C.Q. described them well as follows: [121] L'accusé, Gilbert Gagnon, dit que depuis le dépôt de la plainte de Daniel Audet en 2005, il a vécu des sentiments de honte, d'humiliation, de colère et d'agressivité. Sa vie familiale et sa vie de couple ont été affectées.

Alors qu'il pensait prendre une retraite paisible avec son épouse, il a vécu dans l'attente de l'issue des procédures qui ne finissaient plus. Les reports de l'enquête préliminaire et du procès l'ont particulièrement découragé. [122] En ce qui concerne Georges Lebel, il dit avoir dû prendre une retraite prématurée en juin 2010 en raison du stress occasionné par les procédures. Il ajoute ne pas avoir eu la possibilité de se défendre en temps utile des accusations portées et de rétablir sa réputation. Il dit avoir vécu colère, indignation et perte de confiance dans le système judiciaire.

De plus, lors du dépôt des nouvelles dénonciations en octobre 2008, il a été suspendu de son emploi de policier avec solde. Il a ainsi été privé de revenus considérables provenant du travail supplémentaire, en plus d'être empêché d'exercer ses fonctions. [46] [ 124 ] Clearly, the respondents have been subjected to unenviable stress arising out of the charges the Crown laid against them. The Crown argues that the prejudice thus encountered, however, is not the result of the impugned delays, but rather the mere fact of the

charges themselves. This distinction was recognized in the majority reasons of L'Heureux-Dubé, J. in R. v. Conway [47] in describing the main purpose of the right to be tried within a reasonable time: […] namely, to minimize the adverse effect on the person charged resulting from the pending disposition of an unresolved criminal charge.

The focus of the protection is "the impairment or prejudice arising from the delay in processing or disposing of the charges against an accused and not the impairment or prejudice arising from the fact that he has been charged" ( Rahey , supra, at p. 624, per Wilson J.) The right recognizes that, with the passage of time, subjection to a criminal trial gives rise to restrictions on liberty, inconveniences and pressures detrimental to the mental and physical health of the individual. [48] [ 125 ] As for the respondents, they say that the effect on them is not merely the result of the charges themselves, but rather the extensive delays that have increased their anxiety and frustration as well as impacting their personal and family life. [ 126 ] As Sopinka, J. noted in Morin , the determination of whether a paragraph 11 (

b) right has been denied "is not by the application of a mathematical formula or administrative tribunal but rather by a judicial determination balancing the interests which the

section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay." [49] Amongst the interests to be weighed are those of society "in ensuring that those who transgress the law are

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