2016 QCCQ 19609, 2016 QCCQ 19609

Chikani c. R. 2016 QCCQ 19609 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal Division No: 500-73-003913-122 DATE: September 19, 2016 ______________________________________________________________________ BY THE HONOURABLE GENEVIÈVE GRATON, J.C.Q. ______________________________________________________________________ ALAIN CHIKANI Applicant v.

Her Majesty The Queen Respondent ______________________________________________________________________ TRANSCRIPT OF AN ORAL JUDGMENT REJECTING AN APPLICATION FOR STAY OF PROCEEDINGS FOR UNREASONABLE DELAY [1] ______________________________________________________________________ [ 1 ] I sit and have been appointed as a judge under

section 551.1 of the Criminal Code . Accordingly, I have the responsibility to manage this file before trial. [ 2 ] Mr. Chikani’s trial is set to proceed for 4 days, beginning on the 5 th of June 2017. [ 3 ] Mr. Misiurak, a former co-accused, will have his trial set for 15 days in February 2018. [ 4 ] Last Tuesday, September 13 th , the Court heard Mr. Chikani’s motion seeking a stay of proceedings for unreasonable delay. [ 5 ] Both parties agreed that the total delay will be 52 months. Mr.

Waxman returns today to his initial position of 54 months (because of what happened with the other co-accused). [ 6 ] The investigation in this file is of significant scope. It led to 13 charges under the Competition Act (the « Act ») and the Criminal Code (the « Code ») against five individuals. These charges involve allegations of misleading advertising, deceptive telemarketing and fraud. [ 7 ] The Applicant is charged with one offence under the Act and one offence under the Code . The offences, as set out in the Indictment against the Applicant, allege misleading representations contrary to

section 52 of the Act and fraud contrary to

section 380 of the Code . [ 8 ] The Applicant brings a motion alleging that the post-charge delay has resulted in a violation of his rights under

section 11(

b) of the Canadian Charter of Rights and Freedoms (the “ Charter ”). He seeks a stay of proceedings. [ 9 ] Although the delay in this file surpasses the newly introduced presumptive ceiling of 30 months recently established by the Supreme Court of Canada in Jordan and Williamson [2] , exceptional circumstances such as the transitional exception and a case’s complexity may justify a longer delay. [ 10 ] The time from the laying of charges up to the end of the Applicant’s trial will be approximately 54 months.

As I said last week, both parties originally agreed on 52 months after subtracting 2 months attributed to the accused.

It seems that this position no longer stands for the accused. [ 11 ] The Court concludes, given that the charges were laid well before the Jordan [3] decision, that the “transitional exception circumstance” must be applied because the parties reasonably relied upon the law as it existed previously and their actions were taken having in mind the relevant legal framework at the time [4] . [ 12 ] The Court considers the following factors: - the delay caused by the accused - the regional characteristic of the Montreal Courthouse with respect to longer institutional delays - the case’s complexity, illustrated by exhibits filled by the Crown as RC-2, the exchange of correspondence or letters, the few rounds of disclosure, many CDs of evidence, the number of victims from the United States and in Canada, the main witness being detained temporarily in the United States and the fact that he was supposed to testify in close circuit, the wiretap evidence, many conversations as well as the fact that there are four co-accused.

[ 13 ] This file is also a two step procedure. A preliminary hearing was set for 15 days. The Applicant asked for it before reconsidering his position and before offering to proceed under

section 549 of the Code . The length originally set for the preliminary hearing also shows the case’s complexity . [ 14 ] The Applicant argues that this case does not fall under Jordan ’s [5] exceptional circumstances and that the case is not a complex one. According to Me El Fassy, the Applicant’s former lawyer, the file could even be a “3.12 case”, which means that the trial would take three hours or less. Me Waxman has repeated this. According to Me Waxman, if this file is not a “3.12 case”, it is a one day trial at most with only two witnesses: Bellini and the Applicant. [ 15 ] After the hearing on September 13th, as a designated judge under

section 551.1 of the Code , I asked the coordinator judge’s office if there was availability for a one day trial at the Court of Quebec. I was able to get a one day trial before another judge, on the 2 nd or the 3 rd of November, 2016. This opportunity reduces the delay by 7 months, which is considerable. Consequently, the Court put the file on the docket to offer and set an earlier date for trial. [ 16 ] Mr. Waxman’s reaction to the offer is that the Court misunderstood what he said. In fact, the Applicant is not ready to make admissions. Mr.

Waxman maintains that the trial cannot be a one day trial as the Applicant still needs four days. [ 17 ] It is quite difficult to understand the position of the Applicant.

Perhaps the correct expression is the one advanced by the Crown: there is no willingness on the part of the accused to have a speedy trial and the Applicant is using the Charter as a sword. [ 18 ] The Court takes into consideration that, even if the trial date were November 2 nd or November 3 rd , the delay would still be over the 30 month ceiling in Jordan [6] . [ 19 ] But, considering the transitional measures and the case’s exceptional complexity, the Court takes different factors into consideration.

The Court considers the inherent time required by the parties to review voluminous disclosure in order to prepare for a fifteen day preliminary inquiry and a three-week trial, as originally scheduled. [ 20 ] The Crown also unsuccessfully attempted to

schedule an earlier trial date for the Applicant by offering to sever the charges against him and the remaining co-accused. This attempt failed due to court unavailability at the time. [ 21 ] There was a second attempt to sever the case to allow the Applicant to have a shorter and faster trial. The trial was then rescheduled to earlier available dates and set for four days. [ 22 ] The Court concludes that the Crown and the Court acted diligently in order to protect the accused’s right to have his trial within a reasonable time. [ 23 ] The Applicant’s s 11(

b) Charter right was not violated. For the reasons stated above and further supported in the Respondent’s record, the application should be dismissed. [ 24 ] In looking at the application of the law at the time, there was the notion of prejudice; which is now completely evacuated in the Jordan [7] decision. [ 25 ] There is a prejudice inherent in all procedures [8] ; there is a prejudice associated with being charged with criminal offenses.

The longer the procedures are, the greater the prejudice is. [ 26 ] The Applicant testified about his prejudice on the motion. [ 27 ] Essentially, the Applicant claims that he suffers from anxiety and insomnia. Unfortunately, he did not consult a specialist or doctor regarding this matter. He does not take any prescribed medication for these alleged conditions. He adds that the charges against him affected a business opportunity in the United States and that the charges affected his romantic relationships.

When his name is “Googled”, information on the current accusations immediately appears. [ 28 ] The cross-examination clearly highlighted that many events, other than the charges and the delay, may have caused prejudice to the Applicant. The Crown easily showed that several prejudicial elements emerged before the current accusations when Mr. Chikani’s name is “Googled”, such as a judgment rendered in Ohio and his involvement in another scheme also in the United States. [ 29 ] There is no probative link between the prejudice alleged and the length of the procedures in this case.

Many matters other than the current charges here in Montreal may affect the Applicant’s reputation and cause him prejudice. [ 30 ] Consequently, in view of the law as it was before Jordan [9] , there is no significant prejudice either. [ 31 ] The Court holds that, even if this file is over the 30 month delay for a two step procedure, there is no violation of the Charter considering the balancing exercise. [ 32 ] The alleged charges are serious. The interests of the accused must be balanced with those of society. [ 33 ] A stay of proceedings is an extraordinary remedy.

The circumstances of this case do not justify the application of this draconian remedy. The interests of society require a judgment of this case on its merits.

__________________________________ Geneviève Graton, J.C.Q. Me Valérie Chénard and Me Rodi El-Salibi For Her Majesty the Queen Me Leonard Waxman For Mr. Alain Chikani