February 09, 2018
Duval Hesler, Morissette, Hilton, C. Gagnon, Vauclair
Appeal from two judgments of the Superior Court finding that the right to be tried within a reasonable time had been violated and ordering a stay of proceedings against the respondents. Dismissed.
The respondents Rice and Cazzetta were jointly charged with fraud and conspiracy to defraud the provincial and federal governments of some 67 million dollars by avoiding the tax on contraband tobacco products. The respondent Cazzetta was also charged with a criminal organization offence. They presented motions for unreasonable delays under s. 11(b) of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I), which were granted.
R. v. Jordan (S.C. Can., 2016-07-08), 2016 SCC 27, SOQUIJ AZ-51302609, 2016EXP-2173, J.E. 2016-1212,  1 S.C.R. 631 determined what constitutes a reasonable time within which to be tried. The “unreasonable presumptive ceiling” is calculated from the time charges are laid until the actual or anticipated end of trial. Once the total delay is determined, any delay attributable to the defence must be subtracted. A delay in excess of 30 months before a superior court is presumed to be unreasonable, and the Crown will have the burden of proving exceptional circumstances justifying such delay. The trial judge determined that the total delay amounted to 89 months for Rice and 94 months for Cazzetta. The judge did not err in assessing or attributing the delays during the preliminary inquiry to the defence, except for the periods waived, totalling 18.5 months. The appellant, however, did not establish any error in the judge’s decision to attribute a seven-month delay to the respondent Rice for the motion under s. 42 of the Juror’s Act (CQLR, c. J-2). Moreover, where the facilitation process impedes the normal progression of the trial or preliminary proceedings, the time allotted for facilitation must be short and the resulting delay should not be included in the ceiling fixed by the Supreme Court. The defence, however, waived this delay, and it is attributable to it for the purpose of the calculation. A period of two weeks or 0.5 months should therefore be deducted for Rice.
As for exceptional circumstances, there is no discrete event resulting in a reduction in the delay for Rice. The reasonable unavailability of counsel should be treated as a defence delay. For Cazzetta, the judge also considered counsel’s absence for illness and included a nine-month delay. With respect to counsel’s unavailability, the judge considered that she was ready to proceed once she returned but that the Crown’s insistence on joining the cases caused delays, and as a result did not count them against the defence. This conclusion contains no reviewable error. The judge weighed all the circumstances and concluded that the complexity of the case did not justify the breach of the ceiling set in Jordan; the net delays, after correction, being 63.5 months for Rice and 66.5 months for Cazzetta. Finally, the judge concluded that the Crown’s conduct had contributed to the excesses and unreasonable delays, which were not attributable solely to the district’s problematic institutional delays. The appellant failed to establish any reviewable error in the decision not to apply the transitional circumstance.
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