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Gabarit de jugement pour la cour d'appel

Xanthoudakis c. R.

2020 QCCA 446

COURT OF APPEAL

 

CANADA

PROVINCE OF QUEBEC

REGISTRY OF

MONTREAL

 

No:

500-10-006187-163, 500-10-006210-163, 500-10-006204-166, 500-10-006214-165 et 500-10-006191-165

(500-01-051050-117, SEQ ACC. 002, 003, 004)

 

DATE:

17 mars 2020

 

 

CORAM:

THE HONOURABLE

GUY GAGNON, J.A.

PATRICK HEALY, J.A.

SIMON RUEL, J.A.

 

 

500-10-006187-163

JOHN XANTHOUDAKIS

APPELLANT - Accused

v.

 

HER MAJESTY THE QUEEN

RESPONDENT - Prosecutor

 

 

500-10-006210-163

JOHN XANTHOUDAKIS

APPELLANT - Accused

v.

 

HER MAJESTY THE QUEEN

RESPONDENT - Prosecutor

 

 

500-10-006204-166

RONALD A. WEINBERG

APPLICANT - Accused

v.

 

HER MAJESTY THE QUEEN

RESPONDENT - Prosecutor

 

500-10-006214-165

RONALD A. WEINBERG

APPELLANT - Accused

v.

 

HER MAJESTY THE QUEEN

RESPONDENT - Prosecutor

 

 

500-10-006191-165

LINO PASQUALE MATTEO

APPELLANT - Accused

v.

 

HER MAJESTY THE QUEEN

RESPONDENT - Prosecutor

 

 

 

JUDGMENT

 

 

 

[1]           The appellants, Mr. Xanthoudakis and Mr. Matteo, appeal against verdicts of guilty returned by a jury on 2 June 2016. Mr. Weinberg seeks leave to appeal, after the expiry of the time limit, against a verdict of guilty returned by a jury on 2 June 2016.

[2]           Mr. Weinberg and Mr. Xanthoudakis seek leave to appeal against the sentences pronounced on 22 June 2016 by the Honourable Pierre Labrie, J.C.S.

[3]           For the reasons of Healy J.A., with which Gagnon and Ruel JJ.A. agree, THE COURT:

[4]           GRANTS the motion of Mr. Weinberg for leave to appeal, after the expiry of the time limit, against the verdict;

[5]           DISMISSES the appeals against the verdicts;

[6]           GRANTS the motions of Mr. Weinberg and Mr. Xanthoudakis for leave to appeal against the sentences;

[7]           DISMISSES the appeals against the sentences.

 

 

 

 

 

GUY GAGNON, J.A.

 

 

 

 

 

PATRICK HEALY, J.A.

 

 

 

 

 

SIMON RUEL, J.A.

 

Mtre Georges Calaritis

For John Xanthoudakis and Lino Pasquale Matteo

 

Mtre Annie Émond

Boro Frigon Gordon Jones

For Ronald A. Weinberg

 

Mtre Céline Bilodeau

Director of criminal and penal prosecutions

For Respondent

 

Date of hearing:

8 and 9 April 2019

 

 

 

 


 

 

REASONS OF HEALY, J.A.

 

Introduction

[8]           This appeal concerns the right to be tried within a reasonable time that is guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms.[1] It is governed by the principles stated in Jordan[2] and Cody[3] with respect to transitional cases that began before Jordan and were not final on the day that Jordan was decided.[4] If the appellants were “in the system” on that day, and if the “presumptive ceiling” of thirty months had been exceeded, the appeals must be allowed unless the respondent can persuade the Court that the delays were justified by unforeseen discrete events or the complexity of the case. These are described as exceptional circumstances that would allow deviation from strict application of the principles in Jordan and Cody. In a case such as this some deviation from those principles may also be justified by a “transitional exceptional circumstance” if the Court is satisfied that proceedings in first instance were conducted in a manner reasonably consistent with the jurisprudence after Morin[5] and before Jordan. The basis for this transitional exception is that lawyers and judges cannot be held retrospectively to a standard of which they were not aware.[6]

Five appeals

Verdicts

[9]           On 2 June 2016 a jury found three men guilty on an array of charges.[7]  By 22 June 2016 all three were sentenced.  The three men are before the Court in five files.  These reasons address all five files.

[10]        On 18 July 2016 Mr. Weinberg filed a motion for leave to extend the time to file an appeal from the verdicts of guilt.  This motion is file No 500-10-006204-166 and Mr. Weinberg is the petitioner before the Court.  He seeks leave to appeal on the ground that at trial his right to be tried within a reasonable time was breached.  The basis for this proposed ground is the application of the principles announced on 8 July 2016 in Jordan.

[11]        On 30 June 2016 Mr. Xanthoudakis filed a notice of appeal that contained various grounds but none concerning the right to trial within a reasonable time.  He is the appellant in file No 500-10-006187-163. On 20 July 2016 he filed an amended notice of appeal to add a claim that, following Jordan, his right to be tried trial within a reasonable time had been breached.  On 14 December 2017 he filed an amended notice of appeal that retained only the ground based on Jordan and deleted the previous grounds of appeal. 

[12]        On 4 July 2016 Mr. Matteo filed a notice of appeal that contained various grounds but none concerning the right to be tried within a reasonable time.  He is the appellant in file No 500-10-006191-165. On 30 November 2016 he filed an amended notice of appeal to add a claim that, following Jordan, his right to be tried within a reasonable time had been breached.  On 2 February 2018 he filed an amended notice of appeal that retained only the ground based on Jordan and deleted the previous grounds of appeal.

[13]        For convenience the three men will be referred to as the “appellants” even though Mr. Weinberg remains a petitioner for leave to extend the delay for appeal from the verdicts.  These files will be referred to as appeals against the verdicts even though Mr. Weinberg’s file remains a motion to extend the time to file a notice of appeal from the verdicts.

Sentence

[14]        On 21 July 2016 Mr. Weinberg filed a motion for leave to appeal against sentence[8] in file No 500-10-006214-165.  He is a petitioner in that file, which was deferred to a panel of the Court.

[15]        On 20 July 2016 Mr. Xanthoudakis filed a motion for leave to appeal against sentence[9] in file No 500-10-006210-163.  He is a petitioner in that file, which was also deferred to a panel of the Court.

[16]        Mr. Matteo did not seek leave to appeal against sentence.

[17]        For convenience Mr. Weinberg and Mr. Xanthoudakis will be referred to as “appellants” in the applications for leave to appeal against sentence.

 

Chronology

[18]        The investigation that led to the prosecution of the appellants began in September 2003.  The appellants were charged on 10 March 2011.  Before the trial opened a case- management judge dismissed a motion for a stay of proceedings on 11 April 2014.[10]  The trial ended with the verdicts on 2 June 2016.  Jordan was released on 8 July 2016.  The appellants thus appeal on the basis that the principles in Jordan apply with respect to delays that occurred before the completion of the trial. They claim that for the purposes of the appeals against the verdicts the Court should consider the entire period between the date of the charges and the date of the verdicts. On this basis the length of the delay is sixty-three (63) months and nine (9) days. In this court they appeal against the verdicts on the ground that the case-management judge erred on 11 April 2014 when he dismissed their motion for unreasonable delay.  The delay between the date of the charges and the date on which the case-management judge rendered his decision amounts to thirty-seven (37) months and twenty-one (21) days. The appellants claim that the decision of the case-management judge on 11 April 2014 was inconsistent with the principles stated by the Supreme Court in Jordan on 8 July 2016 and that this court should order a stay for the entire period of sixty-three months and nine days between the charges and the verdicts.

The scope of section 11(b)

[19]        The right to be tried within a reasonable time must have a beginning and an end.  The jurisprudence is clear that the starting-point is the date on which a person is charged, which refers to the issuance of some form of process upon a sworn information.[11]  That is the date on which a person is in jeopardy of conviction at trial. The text of section 11(b) states explicitly that the right to be tried within a reasonable time is the right of a person “charged with an offence.”  Some qualification must be made for pre-charge delay[12] but in strict terms the starting-date is the date of charge. The principles in Jordan could apply in the present matter only if the appellants were “in the system” at the time that Jordan was decided and thus only if this case is properly characterised as “transitional” in the sense that charges were laid before 8 July 2016 and proceedings continued thereafter.

[20]        The jurisprudence is less certain with respect to the end-date for the protection of section 11(b) and the principles expressed in Jordan.[13] The Supreme Court has said that the end-date was “the end or the anticipated end of the trial”[14] but there remains some uncertainty.  It is clear that the protection afforded by section 11(b) includes the protection afforded by Jordan. It remains to be determined whether the protection of section 11(b) is more extensive than that afforded by Jordan and, if it is, in what way.  There are several possibilities for determining the end-date:

-       the date on which the parties conclude final pleadings before the case is given to the trier of fact;

-       the date on which the case is taken under deliberation by the judge or jury, but excluding any period of deliberation;

-       the date of the verdict or judgment on the general issue of guilt or innocence, including any period of deliberation;

-       the date of sentence, including any period of preparation and deliberation;

-       the date of sentence, excluding any period of preparation and deliberation; or

-       the date of filing a notice of appeal or an application for leave to appeal against conviction or sentence.

[21]        Each of the possibilities could be determined as the end-date for the protection of section 11(b) or the protection of Jordan but this determination need not be the same for the protection of both. With respect to the principles in Jordan, these possibilities could apply either to non-transitional (prospective) cases or transitional cases.

[22]        The principles expressed in Jordan apply to transitional cases but they do not apply retroactively to persons that are no longer “in the system.” With respect to the present appeals, a preliminary question is whether the appellants were in the system when they sought to allege a violation of the principles in Jordan on appeal. The Supreme Court has said that section 11(b) does not apply until final judgment is given on appeal[15] but it has said that an appellant is entitled to raise on appeal an issue based upon a change in the law before the appeal is heard. This point was made in Wigman,[16] Thomas,[17] and succinctly restated in Sarson:

26           In Wigman, this Court decided that an accused may rely on subsequently decided judicial authorities only if the accused is still "in the judicial system".  The Court stated, at pp. 257-58: 

The appropriate test is whether or not the accused is still in the judicial system.... Finality in criminal proceedings is of the utmost importance but the need for finality is adequately served by the normal operation of res judicata: a matter once finally judicially decided cannot be relitigated.  Thus a person convicted under Lajoie will not be able to reopen his or her case, unless, of course, the conviction is not final.  In the Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, at p. 757, the Court observed that res judicata would even preclude the reopening of cases decided by the courts on the basis of constitutionally invalid laws.  The res judicata principle would apply with at least as much force to cases decided on the basis of subsequently overruled case law.   

As a result, unless the accused is still "in the judicial system", an accused is unable to reopen his or her case and rely on subsequently decided judicial authorities, even where the provision under which the accused was convicted is subsequently declared constitutionally invalid. 

27           What is the meaning of "in the judicial system" for present purposes?  In Thomas, at p. 716, this Court determined that a person convicted of an offence would still be "in the judicial system" only where one of the following criteria could be met: 

1.  an appeal has been launched to [a court of appeal];

       2.  an application for leave has been made within the time; or

3.  an application for an extension of time is granted based on the criteria that normally apply in such cases. 

The Court in Thomas added (at p. 716) that:

In a case in which the applicant alleges that he or she was convicted under a provision which has since been declared invalid, he or she should not be placed in a worse position than any other applicant.  On the other hand, since we cannot do perfect justice, the applicant should not artificially be brought into the system.   

As the accused in Thomas could not be considered "in the judicial system" based on the criteria developed in that case, he was unable to reopen his conviction or rely on the subsequent declaration that the provision under which he had been convicted was invalid.[18]

[23]        On this basis the appellants were in the system. In the cases of Mr. Xanthoudakis and Mr. Matteo they were in the system because they had filed a notice of appeal within time.  In the case of Mr. Weinberg he filed an application for an extension of time to file an appeal on 18 July 2016. As that application was deferred to the panel in the other two appeals it can be considered timely.  As a result, all three appellants may seek to raise a question on appeal that is based on a change in the law before their appeals are heard.

[24]        It follows that these appeals are “transitional” as that term is used in Jordan, Cody and subsequent jurisprudence.

Scope of appeals against verdict

[25]        As already noted, the appeals against the verdicts have been framed as appeals against the decision of the case-management judge but the appellants claim that the relevant period of delay is the duration of the prosecution from the charges on 10 March 2011 to the verdicts on 2 June 2016.  This requires separate consideration of, first, the period between the charges and the decision of the case-management judge and, second, the subsequent period between his decision and the verdicts. It follows that if the case-management judge erred on 11 April 2014, the appeals must be granted. It follows equally that if the case-management judge did not err the appeals must be dismissed only if the record after his decision discloses unreasonable delay.  

The decision of the case-management judge

[26]        The case-management judge dismissed the application under section 11(b) in a judgment supported by lengthy reasons in which he applied the jurisprudence that then prevailed, most notably Morin. In accordance with that decision the reasons of the case-management judge demonstrate a global assessment of the evolution of the case but focus on two themes: the reasons for delay and prejudice. At the beginning of his discussion of post-charge delay in this case, the judge begins with a preliminary observation:

[161]       At first sight there is absolutely nothing exceptional in that three-year delay or the manner in which matters have evolved particularly having regard for the complexity of the case and the lengthy period foreseen for the trial.

[27]        At the conclusion he confirms the same view:

[185]       In my respectful view, there are no actionable post-inculpatory delays at play here. Having regard for the complicated nature of this case it has moved along as it should. Furthermore the filing of the direct indictment cut a considerable amount of time from this case's travels through the court system particularly if the preliminary inquiry had not been eventually waived.

[28]        The judge provides an extensive narrative of the evolution of the case from its beginning to the moment of the motion based on section 11(b).  He begins by noting that the prosecution began with thirty-six (36) counts that charged a variety of commercial crimes, including fraud, preparation of a false prospectus, forgery and uttering a forged document.  At the beginning there were four persons charged together. One of these, Mr. Panju, later pleaded guilty.

[29]        The judge characterises the prosecution as a “mega-trial.” This characterisation is justified not only because there were multiple accused but multiple charges and voluminous evidence. The judge refers to the mass of material that had to be disclosed by the prosecution and subsequently assimilated and analysed by the defence. More generally, he notes the challenges faced by the parties to prepare the case.

[30]        The judge highlights phases of the case from its beginning until the presentation of the motions concerning delay:

[8]           In the following days the accused parties were duly arrested. They subsequently appeared before the Court of Québec. Conditions were set with regard to their provisional interim release.  Following a pro forma hearing on May 4, 2011 the matter was continued until June 21st 2011.  On that date the matter was further adjourned to September 15, 2011 in order for disclosure to be completed.

[9]           In the course of a preparatory conference held on September the 15th 2011 a preliminary hearing was scheduled to commence some 17 months hence on February 11th 2013 for duration of five weeks. No objection was raised by any of the parties.  In the course of the month of June 2012 however the Director, in his capacity as Deputy Attorney General, deposited a direct indictment with the result that the preliminary hearing already scheduled was bypassed and the matter was brought directly within the jurisdiction of this Court.

[10]        At the opening of the Superior Court term on September 4, 2012 the Director requested the appointment of a case management judge as contemplated by Section 551.1 of the Criminal Code. The matter was continued until September the 19th.  On that date the coordinating judge Vincent J informed counsel that such an application must be addressed to the Chief Justice. The matter was accordingly further postponed until November 5, 2012.

[11]        On that date the matter was again continued to November the 21st 2012 at which time it was scheduled for trial commencing on January 6, 2014 for duration of six months. The Chief Justice declined, at this stage, to grant the Director’s request for the appointment of a case management judge.

[12]        Between the 21st of November 2012 and the end of the calendar year of 2013 a number of preparatory conferences were held.  Four of these conferences took place in the course of the autumn of 2013 before Vauclair J who by then had been designated to preside over the upcoming trial. As I understand the situation Vauclair J proposed to commence hearing pre-trial motions on January 6, 2014. It was anticipated that the jury would be empanelled commencing on or about the 17th of February 2014.

[31]        The judge notes that by the beginning of 2014 it was obvious that the original schedule contemplated by Vauclair J.[19] was unworkable.

[32]        The judge notes also that the decision of the prosecution to prefer a direct indictment in June 2012, thus cancelling the anticipated preliminary inquiry, plainly affected the preparation of the case and the scheduling of a trial date.

[33]        The judge enumerates a variety of developments in the case between September 2013 and March 2014 that contributed to further delay and made impossible any chance that the trial could commence before a jury before April 2014. First, matters were complicated by the refusal of Legal Aid Services in September 2013 to continue funding of Mr. Matteo’s defence.  This matter was not resolved until mid-March 2014. Second, Mr. Panju decided to plead guilty and to appear as a witness for the prosecution. It is not surprising that these developments changed the complexion of the case considerably and had a significant impact on the preparation of the case for all parties, but especially the defence. Third, there was additional delay caused by the slowness in the preparation of English versions of forensic reports. Fourth, there was extended delay in the preparation of a Trial Book by the prosecution. Fifth, the mass of evidence had not been synthesised in a statement of admissions on uncontested issues. Sixth, the designated trial judge was appointed to the court of appeal and a replacement was not immediately available. Seventh, and in more general terms, the judge refers to contentious relations between the prosecution and the defence.

[34]        At many points in his reasons the judge emphasises and repeats the complexity of the case for trial. It is obvious in the frequency of these repetitions that the judge regarded the complexity of the case not only as the appropriate conclusion after careful assessment in case-management proceedings but as a statement of the self-evident. His reasons make plain that he made sustained efforts in case-management proceedings to simplify and expedite the preparation of the case, even though he acknowledged that it would be complex, long and arduous. Nowhere is this clearer than in the judge’s observation that “[i]t is with a considerable degree of hesitation even trepidation that I attempt to outline my understanding of the prosecution’s case.” In short, the judge was satisfied that, by virtue of its sheer volume, the difficulty of the issues and the intricacies of the evidence, the case was exceptionally complex and would be long - and even more so before a jury. He notes that the length of the prosecution was also exacerbated by conditions of endemic delay in criminal proceedings before the Superior Court in Montreal.

[35]        The judge does not present a linear chronology of the case from the moment of charging until the presentation of the motions for unreasonable delay; nor does he attempt to categorise with actuarial punctiliousness various discrete blocks of delay in order to attribute each of them to one of the parties or to neutral factors. As was made clear in Morin, there is no obligation for the judge to undertake an actuarial exercise for this purpose.[20] It is clear from his reasons that the judge was frustrated by the apparent slowness of the proceedings and he does not conceal a good measure of exasperation with the manner in which the parties had been conducting the case.  Apart from identifying several specific factors that had contributed to delay in the case, the recurring theme in the judge’s reasons is that the primary cause of delay was attributable to the overwhelming size and complexity of the case.

[36]        With respect to pre-charge delay, the judge rightly asserts that by itself the delay of eight years before charges were laid cannot justify a stay of proceedings under section 11(b). This affirmation is consistent with established jurisprudence.[21] The judge plainly deplores the length of time taken by the investigation and expresses the opinion that investigation could have been conducted efficiently in a shorter period.  He also makes clear that while pre-charge delay will not alone suffice for a stay it may be taken into account when assessing whether post-charge delay should be considered unreasonable. Despite his sceptical assessment of the length taken for the investigation before charges were brought, the judge concludes that the length of pre-charge delay was not sufficient to justify a characterisation of the case as one of the “clearest of cases” that would impair the right of the defence to make full answer and defence. In particular he concludes with respect to each of the three accused that the lengthy pre-charge delay, given the volume and complexity of the case, did not unduly prejudice them. His factual conclusions in this regard are entitled to deference on appeal and only in the presence of palpable and overriding error should this court interfere with them.

[37]        There is no such error. The case-management judge was evidently concerned, even frustrated, by the evolution of the case but his reasons for judgment disclose at least three grounds on which to conclude that there was no error in his conclusion to dismiss the application. 

[38]        First, a number of developments occurred that could today be described as “discrete events” for which no specific delay could be attributed to a party.  Among these was the agreement to defer the preliminary inquiry for seventeen months, which agreement remained until the prosecution filed a direct indictment.  The duration of this agreement justifies a subtraction of twelve months from the period between the charges and the presentation of the motion under section 11(b). The appointment of the designated trial judge to the court of appeal inevitably contributed to delay, as did the difficulties in finding a replacement for that judge. The difficulties concerning the continued funding of Mr. Matteo’s legal aid contributed to the slowness of the case. The decision of Mr. Panju to plead guilty necessarily affected the preparation of the defence case, as did difficulties with continuing disclosure. In addition these factors, and others, there was also inevitable delay arising from notorious problems of systemic delay in the Superior Court in Montreal.  

[39]        Second, the judge makes plain that the case was not moderately complex but exceptionally complex and would remain so before a jury. The number of charges alone makes that clear. The volume of documentary and testimonial evidence was daunting, as were the implications of such volume for the preparation of the case by the parties. On these appeals the appellants acknowledge the inherent complexity of the prosecution from the beginning.

[40]        Third, and specifically as regards transitional exceptional circumstances, there is nothing in the record before the Court that could substantiate a claim that the parties failed to prepare the case in accordance with prevailing principles concerning delay, chiefly as derived from Morin. The reasons of the case-management judge plainly affirm that despite its length and complexity the case had “moved along as it should.”

[41]        In short, there was no error in the judgment of the case-management judge.

[42]        As for delay between the formal commencement of the trial on 16 April 2014 and the verdicts, there is no demonstrable error before the Court.  Those proceedings continued for two years and two months. By any account this was a long trial but that does not necessarily imply that was tarred by unreasonable delay. Many witnesses were heard and both examinations-in-chief and cross-examinations were extensive. The presentation of expert evidence was arduous. There were many objections and many issues that required exclusion of the jury.

[43]        As previously noted, the conclusion that the case-management judge made no error in dismissing the application under section 11(b) means that the only remaining basis for such relief would have to be found in the conduct of the trial before the jury. But the appellants did not renew or revive their application for relief under section 11(b) before the trial judge. He was never asked to consider the issue and he certainly had no obligation to advance this question on his own. There is nothing in the record before him, or before this court, that would support such a claim. It is self-evident that a correct decision by the case-management judge cannot be considered by itself a sufficient cause of unreasonable delay in the absence of an arguable error in the conduct of the trial before the jury.

[44]        The appellants are entitled to raise an issue of unreasonable delay for the first time on appeal but there must be a foundation for doing so in the record of the trial. In this case that means the decision of the case-management judge or something in the record of the trial before the jury. In the absence of a concrete foundation in the record the appellants cannot include within the total delay the time between the decision of the case-management judge and the jury’s verdicts. To do so would bring within the scope of these appeals a delay that has no relation to the decision of the case-management judge.  The failure to raise the issue of unreasonable delay after the decision of the case-management judge and the verdicts is tantamount to a waiver of the right for that period.[22] Moreover, it would imply that the trial judge had a duty ex proprio motu to invoke section 11(b) on behalf of the appellants. There is no foundation for this suggestion. The appellants cannot appeal in relation to a delay upon which the trial judge had no opportunity to consider and determine the issue.

[45]        This point was affirmed in this court:

[41]         L’affaire Rabba, rendue par la Cour d’appel de l’Ontario en 1991, concerne une requête pour délais déraisonnables présentée pour la première fois en appel. Le fait que la requête a été présentée en appel permet de comprendre la portée des propos de la juge Arbour, alors juge d’appel, lorsqu’elle écrit qu’un défaut de présenter la requête au procès est fatal et équivaut à une renonciation de l’accusé à son droit constitutionnel :

In my view, the failure to move for a stay of proceedings, either before trial or at trial, would, in most cases, be fatal. The failure to move for a stay of proceedings would normally amount to a waiver of any claim which may arise under s. 11(b) of the Charter. To hold otherwise would amount to imposing a duty on the trial judge to examine, in each case, the entire history of the proceedings, on his or her own motion, in order to ascertain whether or not the trial was ready to proceed within a reasonable time.

[Soulignements ajoutés]

[42]        Le défaut « fatal » n’est donc pas de présenter la requête pour la première fois après la déclaration de culpabilité, mais bien de la présenter en appel sans avoir donné l’opportunité au juge d’instance de se prononcer sur son bien-fondé. Ce n’est pas notre cas.[23]

[46]        In the present case there was no application made after the decision of the case-management judge and before the verdicts. The only application of this kind are the appeals themselves.

[47]        There is nothing that would allow the case-management judge, the trial judge or this court to conclude that the delays between charge and the presentation of the motions under section 11(b) and the verdicts place this among the clearest of cases for a stay of proceedings. A stay can be granted only if the measure of unreasonable delay is commensurate with the severity of the remedy. The jurisprudence has recognised for many years that a stay of proceedings as a remedy for an abuse of process can be granted only in the clearest of cases.[24] Unreasonable delay under section 11(b) of the Charter is a specific illustration of an abuse of process.  By definition it is an abuse of process that brings the administration of justice into disrepute.  The threshold required to demonstrate such an abuse has evolved in the jurisprudence between Morin and Jordan but the underlying axiom remains the same: unreasonable delay is an abuse of process that will justify a stay of proceedings in the clearest of cases.[25] The judge in this case made express reference to these principles and applied them.

[48]        The logic of this axiom must not be misunderstood. It begins with the premise that a stay of proceedings is not only the most drastic remedy available but the only remedy available for a breach of section 11(b). The severity of the remedy can only be justified if the breach that compels it is equally severe. In this sense a violation of section 11(b) must fall within the “clearest of cases” to warrant a stay of proceedings. This criterion applies to the only available remedy but it also applies to the nature of the breach itself. Otherwise the remedy would be incommensurate with the violation it is supposed to address.

[49]        From the outset the jurisprudence concerning the criteria of unreasonable delay has been an attempt to identify what is meant by the clearest of cases. That is its constant theme. In Morin the Supreme Court concluded that that the attempt in Askov was inadequate for this purpose and in Jordan the Court concluded that the attempt in Morin was also inadequate.  The presumptive ceilings established in Jordan are markers by which to identify, presumptively, the clearest cases of unreasonable delay. Those presumptive ceilings are subject to possible qualification for delays that exceed or fall short of the marks that they set.  The prosecution might seek to demonstrate that a delay that exceeds the presumptive ceiling is nonetheless reasonable.  Conversely, the defence might seek to establish that a delay that falls short of the presumptive ceiling is nonetheless unreasonable.

[50]        To date the Supreme Court has not used the words “clearest of cases” to qualify the standard for unreasonable delay but that is what its jurisprudence has done in an effort to identify the nature of unreasonable delay that would justify a stay of proceedings. That effort is entirely consistent with the underlying principles that allow a stay for other forms of abuse of process. To say that unreasonable delay can be found only in the clearest of cases is not to create or to add a new test for violations of section 11(b). It is simply a way to specify why unreasonable delay can be sensibly understood as an abuse of process that warrants a stay of proceedings in the same fashion as other forms of abuse of process.

[51]        This court and others have said that the criterion of the “clearest of cases” does not apply with regard to a stay of proceedings granted for unreasonable delay, seemingly on the basis that a stay of proceedings is not only the minimum remedy for a breach of section 11(b) but the only remedy.  That is true to the extent that this remedy for a violation of section 11(b) is not the exercise of a “residual discretion,” as it is with other forms of abuse of process. It is the minimum and, to date, the only remedy for a violation of section 11(b). In this regard it is in no way a discretionary remedy and thus, as the courts have said, the test of the “clearest of cases” does not apply to the determination of the remedy.  But the criterion of the “clearest of cases” does not apply only to the remedy.  It applies equally to the reason for which the remedy is granted. In cases under section 11(b) the remedy of a stay is automatic but only if the violation of the right falls within the clearest of cases.

[52]        In this case the case-management judge made a thorough examination of the evolution of the case before he was seized of the motion for unreasonable delay and concluded that the causes and the effects of the delays incurred fell short of delay that was clear enough or sufficient to be characterised as unreasonable. As a result, the judge made no error in dismissing the motions for unreasonable delay and this ground of appeal must be dismissed. It follows a fortiori that no such error could be found in the conduct of the trial by Labrie J. and the jury.

[53]        Accordingly, the appeals against the verdicts must be dismissed.

Sentence

[54]        Mr. Weinberg and Mr. Xanthoudakis seek leave to appeal from the sentences on the same general ground. Mr. Weinberg refers to the principles of proportionality and parity and claims that the sentences in his case were demonstrably unfit. Mr. Xanthoudakis emphasises the principle of parity and he too claims that the sentences in his case were demonstrably unfit. The terms of imprisonment imposed were concurrent.  The longest sentence imposed on Mr. Weinberg was nine years.  The longest sentence imposed on Mr. Xanthoudakis was eight years.  In the event that their appeals against conviction are dismissed, both seek a reduction of sentence to a maximum of five years concurrent on all counts.

[55]        The standard for appellate intervention in matters of sentencing is well established.  In the absence of an error of principle that materially affected the sentence imposed, including the overemphasis or underemphasis of a relevant factor, an appellate court will not intervene unless the sentence is otherwise demonstrably unfit.[26]

[56]        The judge reviewed the relevant principles in the determination of a fit sentence.  He began with the fundamental principle that a sentence must be proportionate to the gravity of the offence and to the degree of the offender’s responsibility for participation in it.   He notes that among the objectives of sentencing in a case such as this general deterrence and denunciation must figure prominently. He also noted that the aggravating factors enumerated in section 380.1 of the Criminal Code were enacted after the commission of the offences in this case but they remain applicable in the determination of the sentence because they were previously recognised and applied by the courts in cases of fraud and the preparation of a false prospectus. Nothing in the review of principles by the judge could be described as an error.

[57]          With respect to both appellants, the judge made a variety of observations about the gravity of the offences and the degree of their responsibility in the commission of those offences. He emphasised that the scope of these offences was both deep and wide. Over one hundred million dollars was involved. The criminal activity involved was sustained over time and committed with a high degree of planning and deliberation. These were plainly offences that involved a conspicuous element of dishonesty. By its very nature this activity jeopardised the proper functioning of business activities in general and the economic interests of individual persons in particular. These activities were motivated by pure greed.

[58]        These observations not only explain the gravity of the offences but the degree of the offenders’ responsibility.  When tied to the objectives of deterrence and denunciation, they also justify the imposition of exemplary sentences.

[59]        Both appellants claim that the sentences imposed upon them were markedly more severe than the sentences of four years concurrent imposed on Mr. Panju before the commencement of the appellants’ trial.  Mr. Panju had pleaded guilty and gave evidence against the appellants for the prosecution. The appellants submit that the disparity between Mr. Panju’s sentence and theirs is inconsistent with the principle of parity.

[60]        This submission rests on an incomplete understanding of the principle of parity. That principle does not entail a proposition that a proportionate sentence for all participants in a common criminal enterprise will be the same for the clear reason that the degree of responsibility for each participant is often variable and the aggravating and mitigating factors relevant to each participant might also be significantly variable. Quite apart from these variables, it is also clear that the sentences imposed on different participants by different judges might not be the same.  This does not imply that one judge or another commits an error if there is a significant difference in the sentences imposed.  The principle of parity does not compel identity or even similarity of sentences for each of the participants in a common enterprise.

[61]        In the context of this case these observations raise several possibilities: that both the judge who sentenced Mr. Panju and the judge who sentenced the appellants committed no error; that both judges committed an error but not the same error; or that one or the other of these judges committed an error. But disparity does not necessarily imply error.

[62]        The principle of parity complements the principle of proportionality and is subordinate to it. The general principle of parity requires that offenders with a similar degree of responsibility for similar offences should be sentenced similarly. This does not alter the overarching principle that each offender, whether found guilty in a common enterprise or in wholly unrelated crimes, must receive an individualised sentence that is proportionate to the gravity of the offence and the degree of the offender’s responsibility for it.

[63]        The overarching question therefore is whether the sentences imposed on the appellants satisfy this principle of proportionality.  There is no doubt that the relevant considerations enumerated by the trial judge justify exemplary sentences to underscore the objectives of deterrence and denunciation.  All of those factors demonstrate a high degree of responsibility for the commission of elaborate offences that were undertaken in a sustained manner with planning and deliberation.  The gravity of the offences is self-evident. The sentences imposed upon the appellants are clearly at the upper end of the range of possible sentences for the offences in question but they are neither outside an acceptable range nor disproportionate.

[64]        Mr. Weinberg claims that the judge committed an error in the weight he attributed in the assessment of aggravating and mitigating factors. These submissions cannot be sustained.  The Court will not intervene to modify the factors that the judge enumerated.  The evaluation of those factors lies clearly within the discretion of the judge. Neither the Code nor the jurisprudence ascribes an order of priority to aggravating and mitigating factors and there is certainly no tariff of prescribed weight that should be attributed to them. As these are matters within the judge’s discretion, it follows that there is a margin for disparity between one judge and another. As the jurisprudence makes clear, however, disparity is not necessarily synonymous with error.[27] This point has been addressed by the Court previously:

Similar cases can yield dissimilar results but again that does not entail that disparity necessarily reveals reversible error.  A model of individualised sentencing that rests on the discretion of the sentencing judge to determine a sentence that respects proportionality and other relevant principles and objectives must accommodate a tolerable measure of disparity.  Otherwise the only proportionate sentence would always be a mandatory minimum sentence. [28]

[65]        It might be that another judge might have assessed the aggravating and mitigating factors differently. It might be that in doing so another judge might have reached a different result. Further, it might be that this court might reach a different result but it is not the function of this court to substitute its view for that of the sentencing judge unless there is an error of principle or the sentence is otherwise demonstrably unfit. In this case, there is no error of principle and the quantum of the sentences are not unfit.

Conclusion

[66]        For these reasons I would propose to grant Mr. Weinberg’s motion for leave to extend the delay for appeal from the verdicts; dismiss the appeals against the verdicts; grant leave to appeal against the sentences; allow the applications for leave to appeal against sentence to stand as notices of appeal; and dismiss the appeals against the sentences.

 

 

 

 

 

 

 

 

PATRICK HEALY, J.A.

 

 

 

 

 



[1]     Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[2]     R. v. Jordan, 2016 SCC 27.

[3]     R. v. Cody, 2017 SCC 31.

[4]     R. v. Jordan, 2016 SCC 27, para. 95.

[5]     R. v. Morin, [1992] 1 S.C.R. 771.

[6]     R. v. Jordan, 2016 SCC 27, paras. 94-96.

[7]     Honourable Pierre Labrie J.S.C. presiding.

[8]     R. v. Weinberg, 2016 QCCS 3137.

[9]     R. v. Xanthoudakis, 2016 QCCS 3138.

[10]    Weinberg v. R., 2014 QCCS 6820 (Honourable Fraser Martin J.S.C.).

[11]    R. v. Kalanj, [1989] 1 S.C.R. 1594. See also R. v. Chabot, [1980] 2 S.C.R. 985.

[12]    Pre-charge delay is not an independent basis for a remedy under section 11(b) and does not count in the calculation of delay: R. v. Kalanj, [1989] 1 S.C.R. 1594; R. v. L.(W.K.), [1991] 1 S.C.R. 1091.  Pre-charge delay can nonetheless be relevant in determining whether post-charge delay was unreasonable.

[13]    See R. v. Jordan, 2016 SCC 27, para. 49, footnote 2.

[14]    R. v. Jordan, 2016 SCC 27, para. 48.

[15]    R. v. Potvin, [1993] 2 S.C.R. 880.

[16]    R. v. Wigman, [1987] 1 S.C.R. 246.

[17]   R. v. Thomas, [1990] 1 S.C.R. 713.

 

[18]    R. v. Sarson, [1996] 2 S.C.R. 223.

[19]    Then designated as the case-management judge.

[20]    [1992] 1 S.C.R. 771, 787.

[21]    Beginning with R. v. Kalanj, [1989] 1 S.C.R. 1594. On this point, more recently, see R. v. Hunt, 2017 SCC 25. 

[22]    See R. v. S.C.W., 2018 BCCA 346, para. 27.

[23]    M.G. v. R., 2019 QCCA 1170.

[24]    Beginning with R. v. Young (1984), 13 C.C.C. (3d) 1 (Ont. C.A.).

[25]    See Belleville v. R., 2018 QCCA 960, para. 207; R. v. Agostini, 2018 QCCA 373.

[26]    From R. v. Shropshire, [1995] 4 S.C.R. 227 and R. v. M.(C.A.), [1996] 1 S.C.R. 500, para. 90 to R. v. Lacasse, 2015 SCC 64 and R. v. Suter, 2018 SCC 34 the Supreme Court has maintained this policy consistently.

[27]    See R. v. Lacasse, 2015 SCC 64; R. v. Nasogaluak, 2010 SCC 6.

[28]    R. v. Umakanthan, 2017 QCCA 801, para. 3: References omitted but see: R. v. Lacasse, 2015 SCC 64, paras. 58-60; R. v. Nasogaluak, 2010 SCC 6, para. 44.

AVIS :
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