2023 QCCQ 86 (><) | R. c. Seguin

R. c. Seguin							2023 QCCQ 86
COURT OF QUEBEC
CANADA
PROVINCE OF QUEBEC
DISTRICT OF					GATINEAU
TOWN OF				GATINEAU
«Criminal Division»
No:			550-01-119007-203
DATE:		January 17th, 2023
______________________________________________________________________
BY	THE HONOURABLE					ROSEMARIE MILLAR, J.C.Q.
______________________________________________________________________
THE KING
Prosecutor, Respondent
v.
ROGER SEGUIN
Accused, Applicant
______________________________________________________________________
DECISION ON THE MOTION FOR A STAY OF PROCEEDINGS UNDER SECTIONS 11b) and 24 (1) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
______________________________________________________________________

[1] Has the Applicant’s right to be tried in a reasonable time been
infringed?

[2] The Tribunal concludes that the net delay exceeds the ceiling of 18
months established by the Supreme Court in Jordan and is presumptively
unreasonable.

[3] Furthermore, the Respondent did not rebut the presumption by
establishing the presence of exceptional circumstances.

[4] Accordingly, a stay of proceedings is the only remedy.

FACTS

[5] The facts are described in the Applicant’s Motion, and they are the
following.

[6] On May 23, 2020, the Applicant, Roger Seguin, is charged with
driving while his capacities were impaired by alcohol and with a level of
alcohol that exceeded the limit.

[7] The information by summary conviction was laid on October 29, 2020.

[8] Mr. Seguin appeared on December 9, 2020.  Me Abel appeared for him
as a “friend of the Court” and assisted him in adjourning the matter to
February 24, 2021.

[9] On February 24, 2021, Me Barrière appeared and addressed the
matter.  Mr. Seguin was not present.  A bench warrant was issued.

[10]
Mr. Seguin took the steps to have the matter listed
in Court on March 11, 2021.  The warrant was rescinded as Mr. Seguin was
advised he did not need to be present on February 24, 2021.

[11]
At that date, Mr. Seguin advised the Court he
had found a lawyer (Me Amber) and the matter was adjourned for 8 weeks for the
purpose of counsel to take the file.

[12]
On May 11, 2021, Me Amber appeared formally on
the record and received more disclosure.  (He had asked initial disclosure on
April 7, 2021 and received it on May 3, 2021).

[13]
The matter was adjourned to June 2, 2021, for
the purpose of reviewing the disclosure and requesting additional disclosure.

[14]
On May 25, 2021, an additional disclosure
request was sent to the Crown.

[15]
On June 2, 2021, an adjournment was granted for
the purpose of waiting to receive the additional disclosure requested.

[16]
On July 21, 2021, the matter returned and was
adjourned once more to obtain the additional disclosure requested.

[17]
On August 9, 2021, some additional disclosure
was received by Me Amber.

[18]
On September 20, 2021, there was still
outstanding disclosure, and the matter was adjourned to November 10, 2021.

[19]
On November 10, 2021, the matter was adjourned
to set a trial in the management Court.

[20]
On November 12, 2021, the matter was in
management Court.  The trial was set to March 16, 2022, in Courtroom 5 for 4
hours.

[21]
On that date, there was a discussion concerning
the Courtroom to set the trial.  The Crown requested to potentially set the
trial in Courtroom 5, but the judge indicated that this was not an option,
owing the length of the trial being over the 2 hours limit for that room.

[22]
The Crown informed the presiding judge that
there was no available trial date before May and that would be above the 18
months ceiling.

[23]
The presiding judge then permitted the trial to
be scheduled in Courtroom 5 on March 16, 2022.

[24]
On December 7, 2021, the coordinating judge’s
secretary informed the Crown and the Defence that the matter mightn’t be
scheduled on March 16, 2022 in Courtroom 5 because of it’s length and the
matter would be in the management Court on December 17, 2021 to set a new date.

[25]
The matter was adjourned to January 28, 2022, in
order for the Crown and the Defence to file a new form for the setting of the
trial.

[26]
On January 28, 2022, the trial date was set on
August 16, 2022, for 6 hours.

[27]
On February 22, 2022, Me Amber received the last
item of the disclosure he requested.

[28]
On August 16, 2022, the trial began. 
Examination of the first Crown’s witness was not complete and a continuation
was required.  It is to be noted that the second Crown’s witness who was subpoenaed
was not present.

[29]
November 17, 2022 was the first trial
continuation date.  Me Amber was not available but both parties were available
for the second date offered, November 30, 2022, date when the Motion for a stay
of proceedings was presented.

LAW

[30]
On July 8, 2016, the Supreme Court rendered
judgment in the Jordan
Case and ended the delays’ framework of analysis established in Morin for the application of section
11b) of the Charter.

[31]
The Supreme Court in Jordan set out a new framework to
assess whether delay is unreasonable.

[32]
What is this new framework of analysis?

[33]
Ceilings are established beyond which delay is
presumptively unreasonable: 18 months for cases going to trial in Provincial Court
and 30 months for cases going to trial in Superior Court or cases going to
trial in Provincial Court following a preliminary inquiry.

[34]
If the total delay from the charge to the actual
or anticipated end of trial (minus Defence delay) exceeds the delay, then the
delay is presumptively unreasonable.

[35]
The Crown can rebut this presumption by
establishing the presence of exceptional circumstances.  If not, the delay is
unreasonable.

[36]
According to the Supreme Court, the presence of
exceptional circumstances is the only basis upon which the Crown can discharge
its burden to justify a delay exceeding the ceiling.

[37]
Exceptional circumstances are reasonably
unforeseen or reasonably unavoidable and the Crown cannot remedy the delays.

[38]
These exceptional circumstances fall under two
categories: discrete events and particular complex cases.

[39]
First, calculation of the delay from the charge
to the actual or anticipated end of trial has to be done, followed by the
subtraction of the delay attributable to the Defence either waived or caused
solely by its conduct.

[40]
If the total delay from the charge to the actual
or anticipated end of trial is above the ceiling, then, the delay is
presumptively unreasonable and, if the Crown cannot rebut the presumption by
the establishment of exceptional circumstances, the Tribunal shall stay the
proceedings.

[41]
If the total delay from the charge to the actual
or anticipated end of trial falls below the ceiling, then the onus is on the
accused to show that the delay is unreasonable.  To do so, the accused must
establish:

.
He took meaningful steps that demonstrate a
sustained effort to expedite the proceedings;

.
The case took markedly longer than it reasonably
should have.

ANALYSIS

[42]
Before analysing the delays contested in issue,
it is important to emphasize that the Court of Appeal decided that this “(…)
analysis is not fixed and it is necessary to rely on the good sense of trial
judges to determine the reasonableness of the delay in the circumstances of
each case”.
According to the Supreme Court, the analysis must always be contextual.

[43]
The parties agree that the total delay from the
charge to the actual or anticipated end of trial is 762 days.

[44]
Once the total delay is determined, delay
attributable to the Defence must be subtracted.

[45]
According to the Crown, 358 days should be
subtracted from the total delay as Defence delay and exceptional circumstances,
for a remaining delay of 405 days below the ceiling.

[46]
According to the Defence, there are 13 days of Defence
delay and 15 days attributable to exceptional circumstances, which leaves a
total delay of 734 days.

[47]
According to the Crown, the delay of 15 days
between February 24, 2021 and March 11, 2021 is attributable to the Defence.

[48]
The Court disagrees with this argument.  Mr.
Seguin was informed in a letter by a Legal Aid’s lawyer that his presence was
not necessary on February 24, 2021.  Mr. Seguin being not formally represented
by Legal Aid, a warrant was issued, which Mr. Seguin when informed of it took
the steps to have the case filed in Court to cancel the warrant.

[49]
The Court concludes that this delay is a
discrete event and should be subtracted.

[50]
The Crown argues that the delay between
September 20, 2021 to August 16, 2022 should be subtracted being either Defence
delay or exceptional circumstances, which is a delay of 330 days.

[51]
According to the Crown, she was ready to set the
date for the trial on September 20, 2021.

[52]
The Crown refers to Ramsurrun where the Court of Appeal referring to Cody  stated : « where the court and the Crown are ready to proceed but the defense is not, the resulting delay should also be deducted, subject to its right to adequately prepare. »

[53]
This argument is contested by the Defence.

[54]
The delay between September 20, 2021, to
November 10, 2021, is attributable to additional disclosure. This delay cannot be
a Defence delay.  Additional disclosure was asked without an objection from the
Crown on the fact that she was ready to set the date anyhow.

[55]
It is the same with the delay from November 10,
2021, to August 16, 2022.  There are 2 days attributable to set the file in the
management Court.  This is an institutional delay.

[56]
As it is with the delay between November 12,
2021, to August 16, 2022.  This delay cannot be counted as Defence delay.  Both
parties erred on how they handled the file.  It seems that the form wasn’t
complete and the file set for trial in a Courtroom once morest the Court rules.

[57]
This situation was remedied by the coordinating
judge and another date was set for the trial.

[58]
This situation is not an exceptional
circumstance.  Unfortunately, the delay caused by the situation is nothing more
than institutional delay.

[59]
This delay cannot be subtracted from the total
delay.

[60]
The Court concludes that only 28 days can be
subtracted from the delay which leaves a net delay of 734 days, which is above
the ceiling of 548 days.

[61]
The delay being over 548 days or 18 months, the
delay is presumed unreasonable, and the Respondent has the onus to show the
existence of exceptional circumstances.

[62]
Were these exceptional circumstances in this
matter?

[63]
The Court finds that the Respondent did not show
the existence of exceptional circumstances.

[64]
The Tribunal concludes that the delay is
unreasonable.

CONCLUSIONS

THEREFORE, THE COURT:

GRANTS the Motion;

ORDERS a stay of proceedings.

		__________________________________ ROSEMARIE MILLAR, J.C.Q.
Marie-Pier Gauthier
Counsel for the Respondent
Mr. David Amber Counsel for the Applicant
Date of hearing:	November 30, 2022.