Décision

Rice c. R.

2016 QCCS 4659

 

JB3703   SUPERIOR COURT (Criminal Division)
CANADA
PROVINCE OF QUEBEC
DISTRICT OF		LONGUEUIL
No :	505-01-082718-095
DATE :	September 28, 2016
______________________________________________________________________
PRESIDING :			THE HONOURABLE JAMES L. BRUNTON, J.S.C.
______________________________________________________________________
BURTON RICE PETER FRANCIS RICE PETER RICE
Petitioners
v.
HER MAJESTY THE QUEEN
Respondent
______________________________________________________________________
JUDGEMENT UNREASONABLE DELAYS - STAY OF PROCEEDINGS
______________________________________________________________________

A.      INTRODUCTION

[1]       The petitioners present a motion which seeks a stay of proceedings due to unreasonable delays[1]. They were charged on June 3, 2009. Their trial was set to begin before an English judge and jury on October 11, 2016[2]. The respondent estimated that the trial would last 4 weeks.

[2]       With the trial looming, there was a certain urgency to render judgment on the motion in order to permit the Sheriff to adequately manage the jury panel which had been convoked. Due to this factor, having heard the motion on September 19, 2016, the Court rendered a summary oral judgement on September 21, 2016. It granted the motion for a stay of proceedings due to unreasonable delays with reasons to follow. These are the reasons which led the Court to arrive at its decision.

[3]       The Court will begin with an overview of the charges laid and the Crown’s theory. It will then produce a chronological history of the case. It will then proceed to analyze the delays in conformity with the new methodology established in R. v Jordan, 2016 SCC 27.

B.      THE CHARGES

[4]       The petitioners were charged in a six-count information on June 3, 2009. The information named 20 other co-accused.

[5]       The three were jointly charged with the other 20 co-accused of a conspiracy to defraud the government of Quebec (count 1) and of defrauding the government of Quebec (count 2). They were jointly charged with 7 other co-accused of conspiracy to defraud the federal government (count 3) and of defrauding the federal government (count 4).

[6]       The petitioners Burton Rice and Peter Francis Rice were jointly charged with 3 other co-accused of having committed an indictable offence for the benefit of or at the direction of or in association with a criminal organization (count 6).

[7]       Count 5 of the information did not concern the petitioners.

[8]       Referring to counts 1 through 4, the conspiracies to defraud and having defrauded the two levels of government, the respondent’s theory was straight-forward. The petitioners had sold tobacco products to non-Aboriginals. By statute, they became mandataries of both levels of government for the purpose of remitting the retail consumer tax owed by the purchaser of the tobacco products. They had knowingly not remitted the consumer tax thus defrauding the two levels of government of millions of dollars.

[9]       The petitioners, who are Aboriginals, were allegedly among the heads of the conspiracies. They operated a business located at Kahnawake which produced and/or distributed the tobacco products. They took orders and arranged for pick-up of the tobacco products from the business site.

[10]    The sources of evidence available to the prosecution included physical surveillance, judicially authorized intercepted conversations and the search and seizure of material at the business site.

[11]    To establish that cigarette products were sold to non-Aboriginals which generated more than $5,000 in consumer taxes, the respondent relies upon circumstantial evidence. Based upon seizures of tobacco products and documentation, the respondent believes it can establish a realistic estimate of how many cigarettes were sold by the petitioners. Based upon the total population of Kahnawake and the national averages of cigarette consumption in Canada, the respondent believes it can establish that it is impossible that all cigarettes were sold to Aboriginal consumers.

[12]    Count 6 of the information - the criminal organization offence - involved a theory of the respondent which was less straight-forward. The theory involved two possibilities. The criminal organization at issue was the Hell’s Angels and the indictable offences could include crimes, other than those related to the frauds committed against the two levels of government. Alternatively, the criminal organization was unnamed, consisted of the 5 persons charged and related exclusively to the commission of the alleged frauds. The Court will have occasion to comment on this position during its analysis.

[13]    As a final note, the Court was informed that the charges arose from an investigation entitled Projet Machine. Besides the 23 persons originally charged in the present case in the judicial district of Longueuil, 43 other persons were charged in informations laid in the judicial districts of Montreal and Terrebonne. The Court was not provided a copy of those informations so it is not aware how the 43 persons were divided up in each district nor what the charges were.

[14]    The Court was informed that the cases begun in the judicial districts of Montreal and Terrebonne “ … sont terminés depuis plusieurs années.”. No other details of these cases were provided. In the case under study, by January 13, 2014, all co-accused had pleaded guilty. Only the petitioners and the co-accused Cazzetta remained to be dealt with.

[15]    The Court will now proceed to outline the general procedural  history of this case.

 

C.      PROCEDURAL HISTORY

[16]    The relevant procedural history of this case is as follows:

i.              June 3, 2009  : 

•   Arrest and appearance of the petitioners. The petitioner Cazzetta appeared on June 4, 2009;

ii.            June 5, 2009 to November 30, 2009 : 

•   Communication of evidence. As of November 30, 2009, the respondent indicates that “…divulgation #3 comprend tous les éléments les plus pertinents de l’enquête. » (exhibit IR-2). Notwithstanding this affirmation, beginning in November 2009 and continuing as late as January 2016, communication of evidence issues and disputes arose (exhibits R-1, R-2, R-6, R-7, R-10);

iii.           June 12, 2009 :

 •  Petitioners released on bail;

iv.           February 22, 2010 :

  •  Petitioners await management conference;

•  Co-accused Cazzetta seeks facilitation conference;

v.             March 24, 2010 :

  •  Preliminary inquiry set for 5 weeks beginning on November 8, 2010;

vi.           October 1, 2010 :

  •  Management conference;

•  Parties agree to reduce length of preliminary inquiry to 4 days;

•  New date for preliminary inquiry set to April 18, 2011;

vii.          April 18, 2011 :

•   Parties agree to reduce preliminary inquiry to 1 day;

•   Preliminary inquiry postponed to October 25, 2011;

•   Defence waives delays between April 18, 2011 and October 25, 2011;

viii.         June 10, 2011 :

•   Cazzetta released on bail. At the outset of the proceedings in June 2009, Cazzetta was detained in another file. Due to this fact, he did not seek bail in the present file. Having been liberated in the other file on May 31, 2011, the respondent consented to bail;

ix.           October 25, 2011 :

•   Petitioners admit that the respondent possesses prima facie evidence on all counts. Preliminary inquiry continued to April 27, 2012 as defence might call certain witnesses;

x.             April 27, 2012 :

•   No witnesses called;

•   Petitioners committed for trial;

•   Referred to the next opening of the assizes;

xi.           September 5, 2012 :

•   Opening of the assizes;

•   Continued to the next opening of the assizes by consent (January 8, 2013);

xii.          January 8, 2013 :

•   Opening of the assizes;

•   8-week trial set before a bilingual jury to begin on January 13, 2014. The petitioners requested that a case management judge be named. The Court responds that no judge is available at the moment to fulfill that role. Once a trial judge is designated, he or she will communicate with the parties to set up a preparatory conference;

xiii.         September 4, 2013 :

•   The Court is informed that Mr. Cazzetta will present a motion for a separate trial due to the illness of one of his counsel;

xiv.         October 1, 2013 :

•   Mr. Cazzetta presents his motion for a separate trial pro forma. Counsel are to communicate with a named member of the Court in order to fix a date for the hearing of the motion;

xv.          November 5, 2013 :

•   The motion for a separate trial for Mr. Cazzetta is heard and granted. The only ground relied upon by the Court to justify the severance is the health of defence counsel;

 

 

xvi.         November 29, 2013 :

•   A judge is named case management judge of the petitioners’ case. The parties announce the presentation of a total of 13 motions (see paragr. 28 of the petitioners’ motion). One of the motions invokes s. 42 of the Jury Act and requests that the Court order the Sheriff to obtain the Kahnawake Tribal Band list in order to prepare the jury panel (“the s. 42 motion”);

xvii.        January 13 and 14, 2016 :

•   The s. 42 motion is heard;

xviii.      January 15, 2014 :

•   The s. 42 motion is granted. The Court states “Considering the fact the accused are aware that if the Court grants their motion pursuant to s. 42, their trial will be delayed and the delay could be quite long…” before leaving the bench to obtain new trial dates. Upon its return, the Court offers dates in April, May or June 2014. One of the defence counsel could not be available during this time;

•   The Court and the parties will be informed by the Sheriff in late 2014 that her efforts to obtain the Band list have not succeeded;

xix.         January 16, 2014 :

•   Defence counsel request that the hearing of the petitioners’ motions be continued in order that the parties might engage in a facilitation conference;

xx.          January 16, 2014 to January 28, 2014 :

•   Facilitation sessions;

xxi.         February 2, 2014 to February 17, 2014 :

•   Hearing of motions in petitioners’ case. All matters taken under advisement;

xxii.        April 1, 2014 :

•   Counsel, whose illness had led to Mr. Cazzetta being separated from the petitioners, is well and ready to assume her duties anew. Mr. Cazzetta is ready to set a trial date. The respondent desires that Mr. Cazzetta’s file be referred before the petitioners’ case management judge. The coordinator of the Criminal Division preserves the file before him;

 

 

xxiii.      April 28, 2014 :

•   The judge in the petitioners’ file is not ready to render his decisions on the pending motions. Continued to June 4, 2014;

xxiv.       May 6, 2014 :

•   In the case of Cazzetta, the respondent wishes to await the anticipated judgments of the judge managing the petitioners’ case. The respondent announces its intention to seek the joinder of Mr. Cazzetta with the petitioners. The coordinator of the Criminal Division requests that a written motion to that effect be produced;

xxv.        June 4, 2014 :

•   The judge in the petitioners’ file is not ready to render his decisions on the pending motions. Continued to June 13, 2014;

xxvi.       June 13, 2014 :

•   Summary oral decisions rendered on all motions, written reasons to follow (written reasons will be produced on December 10, 2015 (communication of evidence) and on April 15, 2016 (all others));

xxvii.     September 2, 2014 :

•   Respondent’s motion to join Mr. Cazzetta with the petitioners is dismissed on jurisdictional grounds;

xxviii.    November 21, 2014 :

•   The respondent requests that a 6-week trial be set for the petitioners and Mr. Cazzetta as it announces its intention to renew its request for the joinder of the files. The coordinating judge remarks that if Mr. Cazzetta does not agree to adopt the judgments which have already been rendered in the petitioners’ case, it will be difficult to join the files - “… it’s like putting toothpaste back into the tube”. He suggests that the respondent requests that the Chief Justice designate the petitioners’ case management judge as Mr. Cazzetta’s case management judge. The case is continued to the opening of the assizes;

xxix.       January 8, 2015 :

•   The petitioners’ case is set for trial to begin on January 9, 2017. The motion for the joinder of the petitioners’ and Mr. Cazzetta’s case is produced;

xxx.        January 29, 2015 :

•   The coordinator reschedules the petitioners’ trial to begin on October 11, 2016 for a period of 8 weeks. He requests that counsel for Mr. Cazzetta keep these dates open;

xxxi.       March 13, 2015 :

•   The same judge who has been managing the petitioners’ case begins managing Mr. Cazzetta’s file. He declares the motion to join the cases premature as Mr. Cazzetta’s preliminary motions have not been heard. He sets June 29, 2015 as the deadline for the reception of Mr. Cazzetta’s motions. He confirms that, in the event the motion to join the cases is granted, Mr. Cazzetta’s trial will proceed beginning October 11, 2016 with the petitioners;

xxxii.     June 30, 2015 :

•   Mr. Cazzetta’s preliminary motions are set for hearing on September 23 and 25, 2015; from October 20 to October 23, 2015; from December 21 to December 23, 2015;

xxxiii.    September 8, 2015 :

•   Management conference held. Respondent informs judge that it awaits the written version of his judgment rendered orally on June 13, 2014 concerning the communication of evidence before it can execute it. The judge requests the production of a draft order;

xxxiv.    September 23, 2015 :

•   The September 23 and 25, 2015 scheduled sessions are postponed due to the judge being unavailable;

xxxv.      October 20, 2015 :

•   Cazzetta’s preliminary motions heard;

xxxvi.    October 21, 2015 :

•   Cazzetta’s preliminary motions heard;

xxxvii.   November 19, 2015 :

•   Mr. Cazzetta is arrested in an unrelated matter and detained;

xxxviii.  November 25, 2015:

•   Cazzetta’s preliminary motions heard

•   The petitioners announce their intention to produce a constitutional challenge based upon their Aboriginal and treaty rights. They will seek to quash all charges;

xxxix.    December 1, 2015 :

•   Management session;

 

xl.            December 2, 2015 :

•   Management session;

xli.          December 10, 2015 :

•   Judge issues written order (re: communication of evidence) in conformity with his oral decision of June 13, 2014 and the submitted draft orders of the parties (exhibit R-5);

xlii.         December 21, 2015 :

•   The petitioners produce their constitutional challenge;

•   Cazzetta’s preliminary motions heard;

xliii.        December 22, 2015 :

•   Cazzetta’s preliminary motions heard;

xliv.        February 2, 2016 :

•   The constitutional challenge is before the Court. The hearing is devoted to the issue of when it will be heard - pre-jury or post-verdict. The petitioners inform the Court that they anticipate producing 3 expert reports which will only be ready at the end of June 2016. The A.G. Quebec adopts the position that she will not be able to respond to the challenge before 2017 as she has to study the petitioners’ expert reports before hiring her own experts and having them produce reports;

•   The petitioners adopt the position that, in any event, much of the proof which is to be produced on the constitutional challenge will also be produced before the jury in support of a discrete defence. Finding this to be a new issue, the management judge sets another hearing date to discuss it;

xlv.         March 7, 2016 :

•   Cazzetta’s preliminary motions heard;

xlvi.        March 8, 2016 :

•   Cazzetta’s preliminary motions heard;

xlvii.       March 10, 2016 :

•   The case management judge recuses himself on his own initiative in the Cazzetta file;

xlviii.     April 15, 2016 :

•   The case management judge produces the written reasons in support of the summary oral judgments rendered on June 13, 2014 in the petitioners’ case. The case management judge then recuses himself on his own initiative in the petitioners’ file. The undersigned replaces the case management judge in both the petitioners and the Cazzetta files;

xlix.        April 29, 2016 :

•   Management session in both files;

l.              May 11, 2016 :

•   Motion to join cases heard. Taken under advisement;

li.             May 17, 2016 :

•   Three issues are discussed concerning the constitutional challenge: (1) should it be heard (i.e. is it at all relevant); (2) if it is heard, should it be pre-jury or post-verdict; (3) what, if any, of the proof relevant to the constitutional challenge can be produced before the jury. These issues are taken under advisement;

lii.           May 20, 2016 :

•   A written judgment is produced which dismisses the motion seeking the joinder of the cases of the petitioners and Mr. Cazzetta;

liii.          May 30, 2016 :

•   A written interlocutory judgment is produced on the constitutional challenge. The parties are convened for June 7, 2016 in order to provide additional information to the Court;

liv.          June 7, 2016 :

•   The parties provide the additional information requested;

lv.            June 20, 2016 :

•   Cazzetta’s preliminary motions heard;

lvi.          June 22, 2016 :

•   Cazzetta’s preliminary motions heard;

lvii.         June 27, 2016 :

•   Cazzetta’s preliminary motions heard;

lviii.        July 4, 2016 :

•   s. 42 Jury Act issue which had been dormant since late 2014 is discussed. Representations are made on the constitutional issues;

 

 

lix.          July 8, 2016 :

•   Jordan decision rendered by S.C.C. (R. v Jordan, 2016 SCC 27). Counsel for Cazzetta inform the Court, the same day, of their intention to produce a Jordan motion;

lx.            July 11, 2016 :

•   s. 42 Jury Act issue discussed;

lxi.          July 14, 2016 :

•   Conference call with counsel. Court imposes deadline of August 31, 2016 for the production of Jordan motions;

lxii.         August 16, 2016 :

•   Written judgment produced which addresses s. 42 Jury Act issue and the language of trial;

•   Written judgment produced which declares the constitutional challenge not relevant for the consideration of counts 1, 2 and 6; potentially relevant on counts 3 and 4; severs counts 3 and 4; orders the trial to proceed on counts 1, 2 and 6 beginning on October 11, 2016;

lxiii.        September 9, 2016 :

•   Cazzetta: the coordinating judge indicates that the earliest date a 6-week trial could begin is February 6, 2017. He does not formally set the date as the Jordan motions are pending;

lxiv.        September 19, 2016 :

•   Jordan motions heard. Respondent indicates that pursuant to the severing of counts 3 and 4, the petitioners’ trial will last 4 weeks beginning on October 11, 2016;

lxv.         September 21, 2016 :

•   Jordan motions granted in summary oral judgments; reasons to follow.

D.      ANALYSIS

          i  - The Jordan analytical grid

[17]    In the Jordan case, the Supreme Court has established a new analytical grid to consider s.11(b) Charter applications which allege unreasonable delays. Succinctly, for the purposes of the present case, the analysis proceeds in the following manner.

[18]    The Court is first to determine the total time needed from the laying of the charges to the end or anticipated end of the trial.

[19]    The second step consists of subtracting delays attributable to the defence. Such delays are comprised of two components (Jordan, paragr. 61). The first is any delay which has been waived by the defence.

61.  […] Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights. […]

[20]    The second component of defence delay is delay caused solely by the conduct of the defence. This includes:

63.  […] Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. […]

and

64.  As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. […]

and

64.  […] Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay. […]

[21]    The Supreme Court makes clear that defence actions legitimately taken to respond to the charges fall outside the orbit of defence delay (Jordan, paragr. 65).

[22]    Having subtracted delays attributable to the defence, if the total exceeds 30 months (the present case proceeding before a superior court of criminal jurisdiction), the delay is presumptively unreasonable. The onus falls upon the prosecution to show that the delay is nevertheless reasonable due to the presence of exceptional circumstances (Jordan, paragr. 68). Generally, exceptional circumstances fall under two categories, discrete events and particularly complex cases (Jordan, paragr. 71). The period of delay caused by discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the 30-month ceiling has been exceeded (Jordan, paragr. 75). The Crown is called upon to show that it took steps to mitigate the delays due to exceptional circumstances (Jordan, paragr. 70 and 75).

 

 

[23]    Particularly complex cases are defined as:

77.  […] cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. […]

(emphasis in original)

[24]    As regards the nature of the evidence, particularly complex cases will include:

-        voluminous disclosure;

-        a large number of witnesses;

-        significant requirements for expert evidence;

-        charges covering a long period of time.

(Jordan, paragr. 77)

[25]    As regards the nature of the issues, particularly complex cases will include:

-        a large number of charges and pre-trial applications;

-        novel or complicated legal issues;

-        a large number of significant issues in dispute;

-       proceeding against multiple co-accused assuming it is in the interest of justice to do so.

(Jordan, paragr. 77)

[26]    For cases already begun prior to the Jordan decision, a transitional exceptional circumstance may arise:

96.  […]  This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. […]

[27]    The Supreme Court also acknowledges the problem of significant institutional delay:

97.   […]  Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel’s behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov. This transitional exceptional circumstance recognizes that change takes time, and institutional delay — even if it is significant — will not automatically result in a stay of proceedings.

(emphasis in original)

          ii  -  Applying Jordan

                   a)  Is the 30-month ceiling surpassed?

[28]    The total anticipated delay in this case is 89 months. The delay begins with the laying of charges on June 3, 2009 and the anticipated end of a 4-week trial on November 10, 2016.

[29]    The parties agree that the petitioners waived the delays between April 18, 2011 and October 25, 2011 (representing a postponement of the preliminary inquiry).

[30]    The defence argues that no other delays can be attributed to the petitioners. The respondent disagrees.

[31]    The respondent argues that the period of January 15, 2014 to November 10, 2016 (34 months) must be subtracted from the total of 89 months (paragr. 31 and 38 of its written argument - exhibit IR-1). At paragr. 31 of its written argument, the respondent suggests that this period of time can be considered as an implicit waiver by the defence. Alternatively, the respondent argues that this period should be subtracted as it is the result of an exceptional discrete event. As will be seen, the Court holds that this period was not implicitly waived by the petitioners. The Court will conclude that a portion of this period should be subtracted as falling into the category of “… other defence actions or conduct have caused delay …” (Jordan, paragr. 64).

[32]    The contested delay arose from the presentation of the motion which invoked s. 42 of the Jury Act. As explained in the chronology, this motion was announced, with others, on November 29, 2013 after a case management judge had been named. It sought an order from the Court, directed to the Sheriff, that the Kahnawake Band list be used to prepare the jury panel.

[33]    Answering a question from the Court during the hearing of the present motion, defence counsel defended the late production of this motion. First, one is referred to paragr. 30-32 of the petitioners’ motion:

30.  Regarding the motion pursuant to section 42 of the Jury Act, it is important to note that it follows a decision by the Ontario Court of Appeal rendered on June 14, 2013; Her Majesty the Queen v Kokopenace et al, 2013 ONCA 389, C.A. Ont.;

31.  The applicants became aware for the first time of this judgment in November 2013, while preparing their defence on aboriginal ancestral rights regarding tobacco trade;

32.   From their first meeting with [the case management judge] on November 29, 2013, the applicants announced their intention to submit a similar motion to the one successfully submitted by the accused in the Kokopenace case.

[34]    The petitioners also point out that when the trial was originally set to proceed on January 13, 2014 during the opening of the assizes on January 8, 2013, they had requested that a case management judge be named. This request was denied as the Court explained that no judges were available.

[35]    Finally, the petitioners point out that the s. 42 motion could hardly be described as frivolous. It was granted and it had not been contested by the respondent (exhibit R-3).

[36]    The respondent argues that the motion was presented tardily to the extreme and the Court had told the petitioners that its granting would result in significant delays. In accepting to proceed with their motion, due to this warning, they were implicitly waiving any ensuing delays.

[37]    The Court holds that in pursuing their s. 42 motion in January, 2014, the petitioners did not clearly and unequivocally waive the period between that moment and the anticipated end of the re-scheduled trial which would arrive some 3 years later[3].

[38]    Is the late production of the motion, in the circumstances of this case, a factor which falls into the category of “… other defence actions or conduct …” which has caused delay? While the undersigned would respond in the affirmative, he recognizes that, in these early post-Jordan days, he cannot presume to express the consensus of the members of this Court in arriving at this conclusion. It may well be that as post-Jordan jurisprudence develops, the undersigned might well approach the issue differently.

[39]    The Court holds that the motion was tardy in the extreme and it does not accept the explanation for the tardiness advanced by counsel. First, it is clear that, while s. 42 has been part of the Jury Act since the inception of proceedings, it is only in November 2013 that the judgment of the Court of Appeal of Ontario appears to have spurred defence counsel to consult the Act (paragr. 30 to 32 of petitioners’ motion).

[40]    This fact neutralizes the Court’s refusal to name a case management judge in January 2013 when the trial date was set. Defence counsel explained that, due to the number of cases on the role at the opening of the assizes, there is simply no time to advance detailed reasons in support of a request for a case management judge. Furthermore, as soon as a case management judge was named in November 2013, the s. 42 motion was announced.

[41]    While the Court acknowledges that counsel might well feel time-pressed at the opening of the assizes, it does not accept that it would not have immediately named a case management judge in January 2013 if it had been informed of the s. 42 motion. The motion raised an important issue which compromised the Sheriff’s ability to prepare a jury panel in a timely fashion for the beginning of the trial which had been set in January 2014. To raise the issue two months before the beginning of the trial and five years after the inception of proceedings cannot be endorsed by the Court.

[42]    In Jordan, the Supreme Court clearly states that defence actions legitimately taken to respond to the charges do not constitute defence delay. This Court holds that the concept of “legitimately”, in this context, includes a finding that the defence acted in a timely fashion. In other words, for a Jordan analysis, a non-frivolous, serious motion is not a “legitimate” defence action if it is not presented in a timely fashion. “The defence should not be allowed to benefit from its own delay-causing conduct.” (Jordan, paragr. 60).

[43]    What period of delay should be attributed to the defence pursuant to this finding? The Court suggested during oral judgment argument that the period from the production of the motion (November 29, 2013) to the end of June 2014 could be subtracted. It will be recalled that the granting of the s. 42 motion on January 15, 2014 led to the cancellation of the trial which had been set to begin on January 13, 2014. On January 15, 2014, trial dates were offered in April, May and June 2014. The defence explained they could not proceed during this period. The only reason advanced, according to the proof presented, was the non-availability of one counsel who had carriage of another case during these three months.

[44]    As noted in Jordan at paragr. 64, the defence will have directly caused the delay if the Court and the Crown are ready to proceed, but the defence is not. The defence replies, relying on R. v. Lam, 2016 ABQB 489, that in fact the respondent was not prepared to proceed in April, May or June 2014 because it had not fulfilled its communication of evidence obligations. To quote the petitioner’s written argument at paragr. 38:

38.  This makes intuitive sense, how can the Prosecution affirm it is ready to proceed if it has not provided the accused with the disclosure which will enable him to put forward a full answer and defence? Consequently, the Court concludes that, in his view, “… none of the delay occasioned here can be attributed to the defence.”.

[45]    While the decision of the Albert Court of Queen’s Bench deserves and receives from this Court the highest respect, it is not adopted. There is nothing incompatible with finding that the Crown is ready to proceed notwithstanding an outstanding disclosure obligation. To await the communication of the last piece of paper before setting a trial date would encourage delay[4].

[46]    The setting of a trial date provides a focus for the prompt communication of any outstanding evidence. There is nothing in the proof to support the inference that had a June 2014 trial date been set, for example, that timely disclosure could not have been completed. It is noteworthy that when defence counsel did not accept the proposed dates in April, May or June 2014, they did not raise communication of evidence issues in support. They only advanced the non-availability of one counsel. The fact, as one shall see, that the communication of evidence continued to January 2016 (exhibit R-7) does not advance the defence argument. The trial, having been set to proceed in October 2016, did not provide any urgency, unfortunately, to the respondent to rapidly fulfill its disclosure obligation. There is no reason to believe that if a June 2014 trial date had been set following the first postponement, that a complete and timely disclosure would not have been made.

[47]    Considering the preceding arguments, the Court is of the view that the period between November 29, 2013 and the end of June 2014 is defence delay and must be subtracted from the 89-month total. The delay from June 2014 to the beginning of the trial on October 11, 2016, cannot be assigned to the defence. The only inference is that following June 2014, the Court was not available to proceed until October 2016.

[48]    Staying with tardy defence actions, the Court notes that the petitioners announced their constitutional challenge on November 25, 2015. This was a crucial motion which invoked the petitioners Aboriginal and treaty rights in seeking to have all charges quashed. It is unconscionable that the petitioners awaited 6 years and 5 months to raise this issue. They then had the gall to announce that they would not be in a position to be fully prepared until the end of June 2016, as they were awaiting three expert reports.

[49]    While the Court severally criticizes the petitioners, it recognizes that their tardiness did not cause any additional delays as regards counts 1, 2 and 6 of the indictment. The Court held on August 19, 2016 that the challenge was not relevant to those counts and the trial would proceed as scheduled on October 11, 2016. The tardiness would have an impact on counts 3 and 4 of the indictment. In its August 19, 2016 judgment, the Court severed those counts following a finding that the constitutional challenge was potentially relevant to them. That decision does not aid the respondent, however.

[50]    The Court has decided that, as of the end of the anticipated trial in November 2016, the delays are unreasonable and contravene s.11(b) of the Charter. This is true even if counts 3 and 4 proceeded on October 11, 2016. If the Court had found, however, that the present delays were reasonable, it is likely that the ensuing delays to deal with counts 3 and 4 would have been attributed to the defence. The extreme tardiness in presenting the constitutional challenge would not have been a “legitimate” defence action.

[51]    One final subject has to be discussed as regards defence delay - the length of time it took to complete the proceedings related to the preliminary inquiry. In this case, the original date for the preliminary inquiry was set on March 24, 2010. The petitioners were committed to trial on April 27, 2012, some 25 months later.

[52]    During the oral hearing, the Court inquired of the parties the reasons for such a long delay. It did so for the following reasons.

[53]     Jordan applications will often call for the presiding judge to review defence and Crown discretionary actions. As regards the Crown, the Supreme Court explicitly recognizes this at paragr. 79 when it cites with approval R v Auclair, [2014] 1 S.C.R. 83. There is no reason why the defence should not be the subject of the same scrutiny.

[54]    The Court suspects that many members of the Court of Quebec have presided preliminary inquiries which had no legitimate aim. In some cynical situations, one could infer that the preliminary inquiry was used to stall the arrival at trial or to pad a legal aid bill. In such cases, it would be perfectly proper for the prosecution to produce the transcripts of the preliminary inquiry in order to invite the Jordan judge to review them and to find that there was no legitimate motive to hold one. If such a finding was made, the entire period devoted to the preliminary inquiry would be subtracted, as constituting an “illegitimate” defence action.

[55]    In this case, no witnesses were ever heard. The chronology of the preliminary inquiry which covers 25 months is as follows:

March 24, 2010 :  

•   Preliminary inquiry set for 5 weeks beginning on November 8, 2010;

October 1, 2010 : 

•   Management conference held;

•   Parties agree to reduce length of preliminary inquiry to 4 days;

•   New date for preliminary inquiry set to April 18, 2011;

April 18, 2011 : 

•   Parties agree to reduce preliminary inquiry to 1 day;

•   Preliminary inquiry postponed to October 25, 2011

•   Defence waives the delay between April 18, 2011 and October 25,  2011;

October 25, 2011 : 

•   Petitioners admit that the respondent possesses prima facie evidence on all counts. Preliminary inquiry continued to April 27, 2012 as defence might call certain witnesses;

April 27, 2012 : 

•   No witnesses called;

•   Petitioners committed to trial.

[56]    In response to the Court’s query, the petitioners explained that each postponement and each reduction in the length of the preliminary inquiry was due to additional communication of evidence which was constantly being provided by the respondent. The final decision to call no witnesses for the defence on April 27, 2012 was due to the reception of three complementary reports prepared by a Crown expert. The Court infers that the reception of these additional reports resulted in the testimony of the expert at the preliminary inquiry to no longer be required.

[57]    The Court asked the respondent to comment on the position advanced by the petitioners. Counsel, unfortunately, was unable to provide any insight on this issue as he explained he had not been part of the prosecution team during the 25 months under study. As a result, the Court can only conclude that the various postponements were not opposed by the respondent and were made for legitimate defence concerns. No other period of the 25 months, beside the period waived by the defence, will be subtracted from the 89-month total.

[58]    In conclusion on this portion of the judgment, the Court finds that the total anticipated delay was 89 months in this case. The periods between April 18, 2011 and October 25, 2011 (defence waiver) and between November 29, 2013 and the end of June 2014 (defence action) must be subtracted: a total of 13 months. The result is a total delay of 76 months which is above the 30-month ceiling and is, therefore, presumptively unreasonable. The onus falls upon the respondent to establish that the delays are nonetheless reasonable due to exceptional circumstances.

                   b)  Exceptional circumstances

[59]    In its written argument (exhibit IR-1), the respondent proposes a series of discrete events:

•   the tardy presentation of the s. 42 motion;

•   the tardy presentation of the constitutional challenge;

•   the recusation of the first case management judge on his own initiative;

[60]    The Court has already dealt with the s.42 issue and has attributed 7 months of delay to the defence. The respondent would have the Court attribute 33 months of delay from the granting of the motion in January 2014 to the anticipated end of the trial in November 2016. The Court does not agree. First, there was no clear and non-equivocal waiver of this period by the defence. Secondly, the only possible inference is that the Court was not available to hear this trial between June 2014 and October 11, 2016.

[61]    While the tardy presentation of the constitutional challenge was denounced by the Court, it has decided that this event does not aid the respondent. Ultimately, it had no bearing on the delays. The treatment of counts 3 and 4 of the indictment would already have been compromised by unreasonable delays if they had formed a part of the trial which was to begin on October 11, 2016.

[62]    While the self-imposed recusation of the first case management judge was certainly an exceptional circumstance, it did not contribute to any delays. Outstanding issues in the petitioners’ case were subsequently dealt with and the trial was scheduled to begin on October 11, 2016, as it was when the previous judge was involved in the file.

[63]    The respondent also argues that the petitioners’ case was particularly complex. While the Court could be accused of falling into a sterile, semantics debate, it would only concede that the case was moderately complex. The theory of the case was straight-forward. The petitioners had sold tobacco products to non-Aboriginals and had defrauded the two levels of government by not remitting the consumer retail taxes.

[64]    The length of the proposed trial - 4 weeks - does not support a finding that this was a particularly complex case nor do the number of motions which were heard. There were a number of witnesses, including experts, but there was no anticipated complex technical or scientific proof. The volume of disclosure was important but a caveat should be noted. The amount of proof which had to be communicated no doubt was greatly increased by the respondent’s decision to include the criminal organization offence in the indictment and to persist with its primary theory on that count - that the criminal organization was the Hell’s Angels. This led to the Crown wishing to introduce additional expert, drug-trafficking and fire-arms related proof in a file which was essentially a straight-forward fraud prosecution.

[65]    A whole additional bloc of proof had to be communicated to support these allegations. This, in a file where a conviction on the criminal organization offence would not have seriously increased the sentence if the petitioners had also been found guilty of the alleged multi-million dollar fraud charges. The inclusion of the count would certainly incite the defence to vigorously contest it and to seek the exclusion of prejudicial proof linked to drug-trafficking and fire-arms possession[5]. Even during oral argument, the respondent does not show that it understands the impact a decision to include this type of count into the mix might have. The respondent simply repeats “But we had the proof!”. That may be so, but it should not end the respondent’s evaluation of the impact of such a decision[6].

[66]    In addressing complex prosecutions, the Supreme Court notes at paragr. 79 of Jordan :

79.  […] And, of course, the trial judge will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity […]. Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control. […]

[67]    The Court finds that the Crown did not attempt to minimize delays in a timely fashion in this case. Two examples can be given.

[68]    By late 2014, the parties are informed that the Sheriff’s efforts to access the Kahnawake Band List have proven fruitless. No action is taken by the Court, the respondent or the defence on this issue until the undersigned raises it in June 2016, some 18 months later. The respondent argues that it was the petitioners’ s.42 motion, not its. This is an unsatisfactory response.

[69]    Certainly, the Court and the petitioners should have addressed this issue shortly after they were informed by the Sheriff in November 2014 of her unsuccessful efforts. However, the respondent had also expressed concern on this issue (exhibit R-3) and, due to its role in the administration of justice, should have been pro-active in vigorously pursuing it. Instead, it contributed to the culture of delay in accepting that the issue lie dormant.

[70]    The second example deals with the communication of evidence. In June 2014, the case management judge renders summary oral judgments on a number of issues including the communication of evidence. He indicates that written reasons will be issued in support[7].

[71]    On September 8, 2015, the respondent informs the judge that it is awaiting his written judgment before communicating the evidence which formed the object of the June 2014 oral judgment. It needs the written judgment to be able to properly instruct police authorities. The case management judge will request that the parties submit draft orders and the written judgment will issue on December 10, 2015. This represents an 18-month period when evidence which had been ordered communicated was withheld.

[72]    The Court can understand the reluctance of the respondent to run the risk of incurring the displeasure of the case management judge by pressuring him to issue his written decision, but to await 15 months was uncalled for. If the Court was not fulfilling its duty in a timely fashion, it was incumbent upon the respondent to act to remedy the situation. Ultimately, the evidence would be communicated in January 2016.

[73]    Following the Supreme Court’s direction in the case of R v Vassell, 2016 SCC 26, the Court has been careful not to miss the forest for the trees. Taking a step back and considering the moderate complexity of this case, the number of accused originally charged, the alleged criminality, the volume of evidence communicated, the estimated length of the trial and the number of motions produced, one could generously accord 24 months of inherent delay and 18 months of institutional delay as a reasonable time frame, pre-Jordan, to have brought the petitioner’s case to trial. If one adds the 13 months of defence delay, one arrives at a total of 55 total months. Even in pre-Jordan times, this delay would have been exceeded by 34 months.

[74]    While this jurisdiction, unfortunately, certainly qualifies as one which is plagued by “ … lengthy, persistent and notorious institutional delays …”, this case is not saved by the ultimate life-preserver which is thrown by the Supreme Court in paragr. 97 of Jordan. The Court interprets that paragraph to mean that where the delays in a transitional case are due solely to long institutional delay, the case remains viable regardless of its length. Where, as in this case, the respondent, by its laissez-faire attitude has also contributed to the delays or has not mitigated them, this saving provision is not available.

[75]    IN CONCLUSION, THE COURT:

[76]    GRANTS the motion;

[77]    ORDERS a stay of proceedings in file 505-01-082718-095;

[78]    LIBERATES Burton Rice, Peter Francis Rice and Peter Rice in file 505-01-082718-095.

		__________________________________ JAMES L. BRUNTON, J.S.C.
Me Isabella Teolis Me Louis Gélinas
Counsel for Mr. Burton Rice
Me Pierre L’Écuyer
Counsel for Mr. Peter Francis Rice
Me Charles Shearson Me Thomas Walsh
Counsel for Mr. Peter Rice
Me Philippe Vallières-Roland Me Geneviève Côté
Counsel for the Respondent
Date of hearing : September 19, 2016
Summary oral judgment:	September 21, 2016