2023 QCCM 10, 2023 QCCM 10

R. c. Mo 2023 QCCM 10 MUNICIPAL COURT OF THE CITY OF MONTREAL CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N°: 121-083-992 and 122-085-392 DATE: FEBRUARY 10, 2023 ________________________________________________________________ PRESIDED BY THE HONOURABLE SYLVAIN DORAIS, M.C.J. ________________________________________________________________ HIS MAJESTY THE KING Prosecutor - respondent v. YAO HENG MO Defendant - applicant ______________________________________________________________________ JUDGMENT ON THE APPLICATION OF DEFENDANT FOR A STAY OF PROCEEDINGS DUE TO UNREASONNABLE DELAYS ( Sections 11(

b) and 24(1) of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ Overview & Issues [ 1 ] On October 28, 2021, Defendant was charged with two counts of assault (266(

b) Cr.C .) against plaintiffs, Feng, and Jin. On September 29, 2022, some 11 months later and following, among other things an expert report, prosecution added a new count of assault causing bodily harm (267(

b) Cr.C .). [ 2 ] By application dated January 19, 2023, Defendant now seeks a stay of proceedings based on his constitutional right to be tried within a reasonable time, as guaranteed by

section 11(

b) of the Charter . Given the charges are

summary proceeding before a provincial court, the framework defined in Jordan [1] sets an 18-month limit. The trial is set for three days, April 19, 24 and 25, 2023. The parties agree that the Court is faced with a duration of less than 18 months, either 17 months and 29 days or 15 months and 24 days, depending on the characterisation of the time between the first and second pro forma hearing. [ 3 ] Defendant nevertheless argues that his right to a trial within a reasonable timeframe has been violated.

Where the delay incurred is less than the 18-month limit, it is up to the defence to show that such delay is becoming unreasonable in the circumstances of the matter. The defence must then show [2] : (

A) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (

B) the case took markedly longer than it reasonably should have. [ 4 ] These are the two questions that must now be decided. The first question focuses on the conduct of the defence, while the second is more concerned with the specifics of the case, the conduct of the prosecution and considerations related to the institution before which

the case is brought. [ 5 ] Following the analysis, the Court denies the motion because this matter does not meet the requirements of the second part of the test and, here is why. A. Defence Shows Sustained Effort to Expedite the Proceedings? [ 6 ] To meet its burden, Defendant needs to show more than symbolic efforts to expedite the proceedings. The defence does not have to resolve all challenges faced by the prosecution or the courts.

It must show attempts to obtain the earliest possible dates for the hearing, cooperated and responded to the efforts of the prosecution and the administration of justice, gave timely notice to the prosecution that delay is becoming a problem, and conducted all preliminary applications in a reasonable and expeditious manner [3] . [ 7 ] On the other hand, the Court must be careful not to examine every decision made by the defence, which is not required to act in a perfect manner.

The initiative took by defense must reflect the practical reality and a certain degree of cooperation required between the parties to plan and conduct a trial. [ 8 ] It is not for the Court to judge the merits of the decisions taken by the defence, but to observe with a certain distance its conduct in relation to its desire to be tried quickly. While it is the duty of the state to bring an accused to trial, the defence also has certain responsibilities in relation to the timeframe. When raising a breach of s. 11(

b) of the Charter , Defendant must take a proactive and preemptive approach to problem solving and, that to a greater degree where the delay is still within the specified limits [4] . [ 9 ] The defence raises for several elements. The most important relates to the difficulties of disclosure, prosecutor's choice to add a charge 11 months after the events and the expert evidence in relation to the new charge.

On December 12, 2022, the defence would even have admitted that the injuries suffered by the complainant Jin were sufficient to qualify as bodily harm. [ 10 ] Moreover, defence lawyer emphasises its proactive approach throughout the case, after Defendant's first lawyer, M e Elfassy, was allowed to withdraw from the case.

He alleges that he always chooses pro forma dates at the earliest available opportunity, including for the case management and for the hearing on an application for disclosure, despite a planned holiday. [ 11 ] The defence also blames the prosecutor for significant delays in disclosing the evidence and the problems surrounding the existence of video footage. The defence also made strenuous efforts to obtain an expert in psychology to analyse the medical records of the complainant Jin.

In conclusion, the defence argues that it did everything possible to ensure that all proceedings for the trial could be completed within a reasonable time. [ 12 ] There is no debate on this first issue as the prosecutor admits that the defence has taken reasonable steps to expedite the proceedings. B. The Case Took Markedly Longer Than It Reasonably Should Have? [ 13 ] In application of the second part of the test, the Court must examine the complexity of the case, local considerations, and whether the prosecution has taken reasonable steps to expedite the proceedings.

The Court must consider that the reasonable time required increases in proportion to the complexity of the case. The trial judge must also bear in mind knowledge of his own jurisdiction, including the length of time that a trial of this type typically takes to reach trial in light of local and systemic circumstances. [ 14 ] The defence argues that the case took longer than is reasonable. The most important of these grievances relates to the difficulties of disclosure, the prosecutor's choice to add a charge 11 months after the events and the expert evidence to be presented by the prosecution.

This charge could have been laid, according to the defence, even without the results of the psychological expertise. [ 15 ] In addition, Defendant argues that the prosecution could have concluded that there were bodily injuries simply by reading the file and the photos taken of the complainant Jin during the police investigation.

Therefore, the defence attacked the prosecution's choice to artificially complicate the case in that such an expertise could have simply been used at the sentencing stage of the file. [ 16 ] The defence claims that the prosecution made no compromises throughout the management of this case and delayed disclosing of standard documents such as the investigator's supplementary reports, sometimes 4, 5 and up to 10 months after they had been prepared.

This is a type of behavior that has already been strongly criticized by the courts [5] . [ 17 ] The prosecutor is also blamed for failing to make simple inquiries with the defense in order to determine the issues at stake in the case and thus speed up the setting of trial dates [6] . Without these prosecutorial choices, the defence argues that the case would have been ready for hearing as early as July or August 2022 and not as it was set down for April 2023. [ 18 ] The prosecutor's position is based primarily on McKenzie-Fletcher [7] by the Hon.

Dennis Galiatsatos q.c.j. in which the Court determined that a delay of 29 months and 14 days for a criminal case did not exceed the threshold of reasonableness. In this case, the Court also indicated that even in cases where the Crown is at fault, has been negligent or has engaged in other conduct that has caused greater delay such as late disclosure, a stay of proceedings is not always the appropriate remedy [8] . [ 19 ] The prosecution mentions that it has no specific explanation for the delay in communicating the additional police reports.

Although it did not deny the delays alleged by the defence of 4, 5, or even 10 months to obtain them, the prosecution explained that it did not know how long it had had its documents before disclosing them. Such an answer is disappointing for the Court. [ 20 ] With regard to the psychological expertise, the prosecution replied that given its nature, it was obliged to use it and present it at the trial so that the trial judge could decide the case in full knowledge of all relevant facts. ANALYSIS & ConclusionS

[ 21 ] The right to a trial within reasonable delay must necessarily be weighed against the many incidents that could create delays affecting the criminal justice system. The sole remedy prescribed by law once such a violation is found is a stay of proceedings. A stay within the presumptive ceiling of 18 months should be considered rare and limited to clear cases [9] . [ 22 ] The Court is of the opinion that the defence has met its burden for the first part of the test. Its initiatives to keep this case within a reasonable timeframe are eloquent and should be noted.

However, the second part of the test must also be met, namely that the case took significantly longer than would be reasonable in the circumstances. [ 23 ] As for the calculation of the dates on which the trial could have taken place by excluding certain decisions of the prosecutor, it becomes risky to answer with precision. Although the defense alleges that the trial could have been set much earlier, the Court cannot make such calculation based on hypothetical or uncertain data.

Delays can be long without being considerably too long. [ 24 ] However, the Court agrees with Defendant when he alleges that had it not been for the concrete efforts taken by the Municipal Court, the trial might not have taken place before the summer of 2023. He refers in particular to the fact that the hearings have been moved to the South service point (LaSalle), which is a rare occurrence, but not a first for a criminal case. [ 25 ] Also, it is true that the complexity of the case stems in part from the prosecution's choice to add an additional charge some 11 months after the original accusations were laid.

It is easy to imagine when one looks in retrospect at the context of this case that the prosecutor had many elements to lay the charge of assault causing bodily harm much earlier. However, the prosecution chose to do otherwise, after receiving and analyzing the expert report of a psychologist. The Court cannot blame the prosecution for using evidence such as an expert report which must be left to the appreciation of the judge hearing the case on its merits.

In this sense, it would be the prosecution's refusal to use such evidence that could raise questions, not its use. [ 26 ] The prosecution could have taken more appropriate steps to obtain a copy of the video recording requested by the defence. The prosecutor alleges technical problems, not ill will. [ 27 ] It appears surprising, not to say negligent, that additional reports written by police officers were not communicated until 10 months following their release. Again, the prosecution argues that it does not have to be perfect in every respect to satisfy its obligation to disclose evidence.

The prosecutor adds that even in cases where long additional delays would be his fault, the question to be decided remains whether the case took markedly longer than it reasonably should have and, he is right. [ 28 ] It is not the role of this Court to play "Monday morning quarterbacking" when it comes to the parties’ strategic decisions. They are masters of their evidence and their strategies. Could the prosecution have been conducted differently? Possibly. Could these different choices have led to the case going to trial last summer instead of this spring? Most likely.

However, the Court must not look at the matter from a micromanagement point of view, but in the globality of the case, in an imperfect and ever-changing system. [ 29 ] Following the analysis, the Court conclude that the second question of the test has not been met. When considering the factual context as a whole, the decisions made by the parties, and the concrete steps taken by this Court to find a suitable trial date for the parties, the case has not taken markedly longer than it reasonably should have.

Some 18 months might be a long time, but without being indulgent for the justice system, in this context, it is still within the range of acceptable duration. [ 30 ] Furthermore, where the 18-month limit is breached, prejudice to the accused is not relevant [10] . However, as in the present case, prejudice can become one of the relevant factors to the analysis for the finding of a breach where the ceiling has not been surpassed [11] . The Court has no evidence by affidavit or otherwise as to the prejudice suffered by Defendant in respect of the delay.

In the absence of such evidence, the Court is not prepared to infer any prejudice from the present situation. FOR THESES REASONS, THE COURT: [ 31 ] DISMISS Defendant’s application, without cost. __________________________________ Sylvain Dorais, m.C.J. M e Jason Lee Johnson For the Prosecutor M e Michael Khoury For the Defendant Hearing date: February 10 th , 2022

[11] R. v. Lai, 2018 BCSC 867, para. 236; R. v. Patrois, 2018 ONSC 934, para. 61; R, v. Hammer, 2017 BCPC 377, para. 91; R. v.Jeyakanth, 2017 ONCJ 31, para. 38; R. v. Basha, 2017 ONSC 337; R. v. Ching, 2016 ONSC 7533, para. 21; R. v. Akumu, 2017 BCSC896, para. 148; R. v. Bamilla, 2017 ABCA 347 , 356 CCC (3d) 153, para. 65; R. v. Mitchell, 2017 ABQB 717, para. 50; R. v.Tetreault, 2017 ABQB 349, para. 87; R. v. Grant, 2017 MBQB 39, para. 44; R. v. Mebrahtu, 2017 MBQB 59, para. 36-39; R. v.Manh, 2016 ONSC 6970, para. 39; R. v. Maione, 2016 ONSC 7207, para. 39; R. v. Isaacs, 2016 ONSC 6214, para. 186-188.