2023 QCCM 4, 2023 QCCM 4

City Of Shawinigan c. Gazor 2023 QCCM 4 COMMON MUNICIPAL COURT OF THE CITY OF SHAWINIGAN CANADA PROVINCE OF QUEBEC DISTRICT OF SAINT-MAURICE N os : 806638402, 806638403, 806668074, 806668075, 806835494, 806835495, 806850747, 806854361, 806854362, 806854364, 806854365, 806854759, 806940328, 806940329, 806940330, 806857194, 806891807, 806891808. DATE: JANUARY 31, 2023 ________________________________________________________________ PRESIDED BY THE HONOURABLE SYLVAIN DORAIS, M.C.J. ________________________________________________________________ CITY OF SHAWINIGAN Plaintiff v.

ARSHAM GAZOR Defendant ______________________________________________________________________ JUDGMENT ON AN APPLICATION FOR POSTPONEMENT OF TRIAL (Section 197 Code of Penal Procedure ) ______________________________________________________________________ [ 1 ] The court is seized with an application dated January 23, 2023 requesting the postponement of a trial set for February 17, 2023 involving 18 statements of offence.

This is the second request for postponement submitted for the same motive by Defendant . [ 2 ] The main issue raised by this preliminary application is whether Defendant has exercised due diligence in seeking to obtain legal representation, as he now wishes to invoke this reason as the basis for seeking a second postponement of his trial. [ 3 ] The request was transmitted by Defendant to the court’s registry via email and forwarded to the undersigned. The parties were then asked to submit their representations in writing.

The court took the request for postponement under advisement on January 30, 2023. [ 4 ] Defendant was informed of the trial date by email on December 1 st , 2022, which he subsequently confirmed to the court clerk. He also received a notice of hearing by regular mail. The disclosure of evidence was completed on April 6, 2022 for the statements of offence issued in October 2021, and on January 18, 2023 for those issued in March 2022. [ 5 ] In the brief description of the charges laid out in the court docket, there is no indication that the nature of these cases might be complex.

They are cases of insult, obstruction, driving without a registration certificate, speeding and other violations of the Highway Safety Code or municipal by-laws concerning peace and order. [ 6 ] When Defendant requested his first postponement, his stated intention was (translation) “to adequately prepare [his] case”.

The Honourable Pierre Bordeleau, m.c.j., presiding on that day, specifically asked Defendant if he wanted to consult a lawyer and Defendant responded in the affirmative. [ 7 ] The judge then asked Defendant whether he would have sufficient time to prepare if the cases were postponed until September 2022,

to which Defendant again agreed. However, after verification, the court had no availability in the fall of 2022 and the cases were then postponed pro forma on four occasions: June 16 th , August 31 st , October 5 th , and December 1 st , 2022. Some of these postponements were related to administrative issues.

The hearing was finally scheduled for a one-day trial, on February 17, 2023, for all 18 statements of offence, after the assignment of the undersigned to preside over the trial. [ 8 ] In his present request, Defendant indicates that he will need an interpreter as well as the presence of all the police officers who were involved in all his files, including those that were withdrawn by the prosecution. These claims will not be dealt with here, but rather will be the subject of preliminary remarks by the parties at trial.

Defendant concludes his application as follows: "I need more time to secure a lawyer so the 17th is not a good date for me. A couple more months at least is required." [ 9 ] As mentioned before, this is the second application for postponement for the same reason of obtaining more preparation time with the help of a lawyer. [ 10 ] First, this court must stress the importance of a long-recognized principle of being able to choose an attorney freely.

However, the right to counsel is not an absolute right, even though s. 10 of the Canadian Charter of Rights and Freedoms and s. 34 of the Quebec Charter of Human Rights and Freedoms recognize its implicit constitutional value. [ 11 ] Thus, depending on the circumstances and the nature of a case, it must be determined whether a postponement is necessary to enable a Defendant to mount a full and complete defence, or whether it is merely a dilatory or an abusive means [1] . [ 12 ] Therefore, the right to legal representation and the right to be represented by a lawyer of his choice are not absolute and must be subjected to reasonable limitations.

In this regard, the court may consider several factors [2] including the seriousness of the reasons for postponement, the timing of the request, the number of adjournments already granted, and the party’s negligence. It is also necessary to assess whether the request conceals a dilatory maneuver, in view of the 18-month ceiling applicable in penal matters and the parties' interest in proceeding diligently in the new judicial context following Jordan [3] and Cody [4] . [ 13 ] In this case, the key consideration is that the right to counsel must be exercised diligently and within a reasonable time [5] .

Defendant has known about the charges levied against him since October 2021 and March 2022. He has already requested a postponement in May 2022, in order to prepare his case adequately with a lawyer. This delay gave him ample opportunity to consult with one. Moreover, the date of this trial involving 18 distinct charges was set on December 1 st , 2022, to which Defendant did not object. [ 14 ] Given the circumstances, the court is of the opinion that this second request for a postponement must not be granted. Defendant was negligent.

He should have made reasonable efforts to prepare his case in a timely fashion: to that end, he has had more than nine (9) months [6] , which, in the opinion of the court, is sufficient time to find, retain, and consult with the lawyer of his choice. [ 15 ] Furthermore, when Defendant writes that: "A couple more months at least is required" , he confirms the unreasonableness of his request and his lack of respect for the opposing party and, ultimately, for the justice system.

Nowhere in his representation does Defendant mention the steps he has taken to retain counsel or whether or not an attorney is willing to take his case. Even more telling, he doesn’t specify a date at which he reasonably expects to have retained counsel. [ 16 ] In his response to prosecutor representations, Defendant wrote: “This has been difficult and i was only able to meet with a lawyer yesterday the day mr beuaptre (sic) email was sent.

She has advised a program like the one in trois riviere (sic), which she doesnt know if it exists or the name of in shawinigan (sic)” [ 17 ] When asking for a postponement based on the right to consult the lawyer of his choice, a defendant must not only demonstrate a willingness to avail himself of his right to counsel, but he must also show that he has been reasonably diligent in exercising that right.

Otherwise, the court may find that Defendant has waived his right or, at the very least, that Defendant may no longer use it as a valid or serious motive for a further postponement of the trial. [ 18 ] The motion must be denied. FOR THESE REASONS, THE COURT: [ 19 ] DISMISSES Defendant’s application for postponement of trial, with costs. _________________________________ Sylvain Dorais, m.C.J. M e Denis Beaupré For the prosecution Defendant represented himself.