Décision

[1]           The petitioner has to stand trial on the following accusation:

On or about February 21, 2011, in Laval, district of Laval, did knowingly convey to Facebook a threat to cause death or bodily harm to All Women, committing thereby the offence punishable on summary conviction provided by section 264.1(1)a) (2)b) of the Criminal Code.

INTRODUCTION

[2]           The petitioner is self-represented. At the opening of his trial on April 13^th, 2012, he presents numerous motions or petitions regarding issues that lead him to conclude that his rights were violated.

[3]           He therefore seeks different orders or remedies by this Court. Two other motions are still pending and will be heard at a later date. This judgment will decide on what the petitioner has qualified “one big motion”, but which in fact contains six different Charter Issue, all contained in a binder titled” Charter Issue Section 2(b), 7, 8, 11(b), 11(d), 15(1) and notices”.

[4]           Before discussing these issues, it is useful to summarize the facts that lead to the petitioner’s arrest.

THE FACTS

[5]           Officers Roberge and Boulay of the Laval Police Force (Police) were partners and on patrol on February 21, 2011.

[6]           Around 1:00 p.m., the police receives a 9-1-1 call from a women who was surfing on the Internet. She is preoccupied and afraid by something that she read on Facebook, namely a message recently posted the same day that looks like a suicide note and a general threat to women[1].

[7]           Both officers are assigned to respond to the call. They first access the web and find the message in question. It does indeed contain what the citizen had related.

[8]           The message also contains a link to a website. By clicking on the link, the officers pinpoint rapidly a Laval address where the author of the message should reside.

[9]           They proceed to go there, but nobody is at the address. However, neighbours met on the scene give the name of the previous tenant[2]. A quick search by the officers in their data banks allows them to obtain a new address in Laval for the petitioner where they now proceed to go.

[10]        Unaware of the petitioner’s intent, if he was armed or if he had already put his threats toward him or others in action, they set up guard outside the home. Another officer now on the scene tries to make contact by telephone with whoever might be inside.  The petitioner will answer. Informed as to what is unfolding, he accepts to come outside and surrender to the officers. He will be arrested immediately after doing so.

[11]        Concerned about the safety of anyone who could have been inside the home, the officers proceed to a summary search of the property. In the basement, they notice in plain view two computers and some external hard-drive. At the same moment, a man appears on the scene. He is the petitioner’s father. He declares that the home is his place of residence and that his son (the petitioner) lives with him.

[12]        The officer briefly informs the father as to the reasons of their presence on the premises and that they just arrested his son. They also mention that the alleged infraction is Internet related. Pointing both computers, they remark that they will likely obtain a search warrant to seize them for investigation’s purposes.

[13]        The father informs them that both computers and the hard-drives are his. Without any request or suggestion from the officers, he consents to let them remove immediately everything relevant for the investigation if it is necessary. This will be done after securing and confirming the father’s consent and the officers will remove the computers and hard-drives from the property.

[14]        Nothing else of interest will flow from the inspection of the property.

[15]        As for the petitioner, he was brought to the Albert Prévost Pavilion of the Hôpital du Sacré-Coeur de Montréal (Albert Prévost) for observation due to his suicide note. He will remain there until his medical release the next day. He will then appear in Court on the same day. Crown will object to his release considering a known medical history (schizophrenia) and a prior incident in 2003 where the petitioner had led to police to believe falsely that he had killed a women. He had subsequently been found not criminally responsible of that accusation due to mental disorder[3].

[16]        On the next day, February 23, the Court will release the petitioner on conditions, plus an order to submit on an external basis to an assessment to determine if he suffered from a mental disorder so as to exempt him from criminal responsibility[4].

[17]        This original order was asking (erroneously as we will see) that the assessment take place at Albert Prevost.

[18]        Shortly after this hearing, the police investigator responsible for the file went on holidays. On her return, on March 23, she realized that the computers and hard-drives seized were not needed for the investigation. Her enquiries with the prosecutor’s office were to the same effect: they did not see useful for the investigation to search the content of neither the computers nor the hard-drives. Since a report had been properly filed with a justice (section 489 Cr. c.) for a seizure without warrant, steps were taken for restitution ((section 489.1(1) and everything was returned to the petitioner on April 12.

CHARTER ISSUES

ISSUE 1

[19]        The first one concerns the fundamental freedoms expressed in section 2(b) of the Charter:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

[20]        Simply put, the petitioner argues that whatever he wrote, quoted or posted on Facebook or elsewhere is protected by this section. Using in part or in whole what he posted to accuse him therefore violates his freedom of expression. The evidence that the Crown wishes to introduce at his trial in thus illegal. He quotes, among some decisions, Irwin Toys Ltd c. Quebec (Procureur général) 1989 1 R.C.S. 927 et R. c. Keegstra 1990 3 R.C.S. 697 .

[21]        While it is true that generally speaking, all types of expression of through, belief, opinion and expression are protected by section 2, the petitioner’s is oblivious that by virtue of section 1 of the Charter, this freedom is guaranteed “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

[22]        One example of such limits is clearly section 264 of the Criminal Code which is the accusation on which the petitioner has to stand trial. Another example could be “hate propaganda” as outlined in section 318 and subsequent of the Code.

[23]        In other words, the legislator has clearly defined acts and behaviour, including written or spoken words, which are prohibited in a free and democratic society, notwithstanding s.2 of the Charter.

[24]        As is often the case with self-represented accused, the petitioner not only argued his motions, but also ‘testified” as to the merits of the accusation in itself. However sound or not were his arguments, they will have to wait and be properly put on record in respect of the rules or evidence. From there, it will be up to the trial judge, after hearing all of the evidence, to decide if indeed the words in question can sustain or not the accusation.

[25]        In the meantime, this Charter argument cannot preclude the trial.

[26]        Obviously, this first Charter Issue fails.

ISSUE 2

[27]        The second issue is based on section 15, equality rights. This section clearly prohibits discrimination based (among other things) on mental disability.

[28]        The petitioner’s argument is his belief  that freedom of speech covered what he published and that the Laval Police had therefore no grounds to arrest him. Since they could not arrest him, they could not detain him either. And if they could not detain him, they (or the Court) could not order an assessment pursuant to section 672.13 of the Code.

[29]        The petitioner argues that this order was made without any supporting evidence, interferes with his defence, is a prejudice and discriminate him[5].

[30]        First of all, there was supporting evidence when the order was made: police record showed a prior incident in 2003 where a defence of mental disorder applied. There was also known information that he had a prior medical history[6].

[31]        Secondly, the undersigned cannot sit in appeal of this order and revisit its merits. Nonetheless, the argument of petitioner’s that no evidence existed to validate the order is simply not accurate.

[32]        The fact that it was ordered is not discrimination against him. The law, both civil[7] in this province and in criminal matters in the Criminal Code[8] have valid legislation targeting individuals when their mental situation can play a role in the outcome of their safety, that of others, or the final outcome of their criminal intent in regard of accusations, including their fitness to stand trial.

[33]        This process and its outcome is not prejudice. It is the application of the law. It does not interfere either with the defence of an accused.

[34]        This second Charter Issue therefore also fails.

ISSUE 3

[35]        The third issue is both the unreasonable search of his residence and seizure of the computers and hard-drives. This would violate s-8 of the Charter where “Everyone has the right to be secure against unreasonable search or seizure”.

[36]        The circumstances of how and why the Police came to his residence are already related.

[37]        The Court accepts the officer’s testimony that they felt obliged to go inside the residence to secure the premises and to make sure that nobody was in danger or in worse condition inside.

[38]        In doing so, the police were not invading the privacy of the petitioner’s home arbitrarily or illegally. They acted not only in good faith according to the circumstances but also in respect of their duty to insure the safety of anybody who might have been inside.

[39]        Both the law[9] and the common law[10] states this obligation and allow them the power to do so. It cannot be said here that within the general scope of such a duty, their conduct involved an unjustifiable use of powers associated with the duty[11].

[40]        As for the seizure of the computers and hard-drives, it is true that a seizure without warrant is presumed abusive and that it falls on crown to rebut this presumption[12].

[41]        However, the undisputed evidence heard shows that the primary occupants of the dwelling were the petitioner’s parents.

[42]        It is also undisputed that the father not only claimed ownership of what was seized, but that he also agreed and consented to its seizure without a warrant.

[43]        In these circumstances, both the entry on the premises and the subsequent search and seizure were not abusive or in violation of the Charter.

[44]        Furthermore, no evidence stemming from that seizure will be used at the trial. The computers and hard-drives were not searched, no copy of any files or data were made and everything was returned in less than two months in their original conditions. This in itself cannot justify the seizure after the fact, but should soothe the concerns of the petitioner who seems to have voiced on many occasions prior to the April 13, 2012 audition his belief that “copies were made”.

[45]        This third Charter Issue fails.

ISSUE 4

[46]        The fourth Charter Issue concerns the delay. Section 11B) of the Charter reads as follows:

Any person charged with an offence has the right (…) b) to be tried within a reasonable time”.

[47]        In essence, the petitioner argues that the assessment order (already discussed above) denied him his right to be tried in a reasonable time.

[48]        We can infer from the evidence that it was known at the time of the order that the petitioner had an active medical file at Albert Prevost or was at least known there by the faculty members. This probably explains why the original assessment order designated Albert Prevost.

[49]         The record shows that the accused was never in agreement with the order. He nevertheless obeyed it and did go to Albert Prevost to comply. Unfortunately they saw otherwise. They refused to do the assessment since such an order of the court for someone who is not detained is not for them to perform. We now know that the order should have specified le Centre de Psychiatrie Légale de Montréal (CPLM).

[50]        This information was brought up at one of the petitioner’s later appearance in Court and a new order was made on June 13^th, 2011 naming now the CPLM as the place where the assessment was to take place before September 7, 2011.

[51]        The petitioner then appealed in Superior Court the original order and the new one.

[52]        The appeal hearing was on October 21, 2011. The Superior Court had no jurisdiction to rule on the order, since it had expired. The parties were back at square one.

[53]        A transcript of a later hearing in this court in November shows that the Crown was still interested in pursuing an order[13].

[54]        For reasons that are unclear, a decision by Crown was eventually taken not to pursue this avenue and Crown had no intent from thereon to renew  or seek a new order[14].

[55]        Apart from the specifics relating to the issue of the assessment orders, the petitioner presented no other arguments or evidence. The usual date-by-date chronology of appearances in Court, the delay between each and the reason why postponements were made is absent.

[56]        What can we make out with the evidence at hand?

ANALYSIS

[57]        Section 11(b) is conducive to the holding of a trial when the evidence is still fresh. It is also intended to protect an individual's right not to be unduly stigmatized by the criminal process and the resulting stress. 

[58]        These principles, established by the Supreme Court in R. v. Morin[15], still apply:

The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

[59]        However, that right is counterbalanced by society's right to have offenders brought to trial and dealt with according to the law[16].

a)         SECURITY OF THE PERSON

[60]        The petitioner has been living with the anxiety of a pending decision and the possible consequences of a conviction. These effects are prejudicial and the purpose of section 11(b) is to minimize them.[17]

[61]        The prejudice in and of itself is not determinative. Other factors must be taken into consideration:[18] 

1 —    The length of the delay.

2 —    Waiver of time periods.

3 —    The reasons for the delay, including:

          (a) inherent time requirements;

          (b) actions of the accused;

          (c) actions of the Crown;

          (d) limits on institutional resources;

          (e) other reasons for the delay.

4 —    Prejudice to the accused.

[62]        Section 11(b) of the Charter applies only to the person "charged with an offence" and a person is charged only when an information has been sworn.[19] The swearing of the information occurred on February 22, 2011.

[63]        A total delay just short of 14 months is therefore present on April 13 th 2012.

[64]        We can infer that crown was not ready to proceed to trial initially until they knew the result of the assessment order. Furthermore, the fact that the original order should have mentioned CPLM instead of Albert Prévost does not fall upon the accused  or result from his actions. The petitioner is therefore not responsible for the delays until June 13^th [20].

[65]        Following that date, the actions of the accused came into play. He clearly mentioned that he was not willing to go along with the assessment order and appealed it. Following the outcome of the appeal in late October 2011, we are in the dark as to what took place and why before the trial was scheduled for April 13^th, 2012.

[66]        As much as a judge has to be mindful of an accused who represents himself and the inherent difficulties that can sometime arise, it nevertheless does not fall upon the judge to present evidence and act as the accused’s counsel. The usual presentation of a Charter Issue relating to delays would have required more detailed information.

[67]        For argument’s sake, in the best scenario favourable to the accused, the delay between February and June 2011 and between October 2011 and April 2012 would be actions of the Crown. This would result in a 10 months delay before trial not originating from the accused’s conduct.

[68]        This delay, even for a summary conviction offence, does not make the delay unreasonable and falls within the guidelines of the Supreme Court[21]. We also have to factor in that a proper analysis would probably shorten this delay.

RIGHT TO LIBERTY

[69]        The petitioner's right to liberty is not at issue. He was not detained or subjected to difficult conditions restricting his liberty while waiting to stand trial.

(C)       RIGHT TO A FAIR TRIAL/PREJUDICE

[70]        The petitioner has the burden of showing that he suffered a prejudice, a key element in the violation of section 11(b) of the Charter.[22]

[71]        No such evidence is tendered. Furthermore, the evidence heard does not lead to any such conclusion either.

[72]        The assessment order could obviously have specified CPLM to start with. But this honest mistake was obviously not made deliberately in order to harass, bother or otherwise cause prejudice to the petitioner who during all that time was not detained.

[73]        This fourth Charter Issue fails accordingly for all the above reasons.

ISSUE 5 AND 6

[74]        The last two Charter Issues are in relation to section 7 and 11d) of the Charter.

[75]        The former seeks as remedy destruction of what has been seized and still in possession of the police. Section 7 of the Charter reads as follows:

“Life, liberty and security of person - Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

[76]        This section is clearly not in play here with the evidence heard.

[77]        The latter issue deals with subsection (d) of section 11 that reads as follows:

…”to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”.

[78]         Most of the arguments tendered on this issue overlap and repeat the ones already put forward for the other issues presented, namely the “unlawful” assessment order, and the belief that the Police is still holding material stemming from the seizure.

[79]        It again seeks as remedy destruction of any existing copies from the seizure of the computers and a stay of proceeding.

[80]        No evidence heard is conclusive that any of the component of section 11d) is violated or a live issue that needs to be addressed.

[81]        Accordingly, it does not seem necessary to further discuss or state the law on these two final issues and they fail.

LAST REMARKS

[82]        One of the “overlap” argument of the petitioner was that all his allegations as to the unlawfulness in which his file was tainted combined with the Crown conduct in regard of the assessment order, amounted to no less than “abuse of process” and that only a stay of proceeding could correct it all.

[83]        No such abuse is present and the Court simply wishes to refer the petitioner at two recent Quebec Court of Appeal decisions that discuss and rule on what can constitute abuse of process and when a stay of proceeding is the proper remedy. After reading these two decisions, one can easily conclude that the petitioner’s situation, the facts of his case, and the conduct of the police or crown are far from the ones where it could apply[23].

CONCLUSION

[84]        For all these reasons:

REJECT all the motions presented so far by the petitioner.