Hilton, Marcotte, Schrager
Appeal from a judgment of the Court of Quebec that summarily dismissed an application to stay proceedings due to unreasonable delay. Dismissed.
On June 2, 2015, the appellant was convicted on counts of sexual interference, invitation to sexual touching and sexual assault of his 6-year-old niece. On February 10, 2017, he was sentenced to 30 months’ imprisonment. Before sentencing, the judge summarily dismissed an application to stay proceedings due to unreasonable delay because the appellant had failed to respect the 30-day time limit for service and filing required for an application based on the Canadian Charter of Rights and Freedoms (R.S.C. 1985, Appendix II, No. 44, Schedule B, Part I). The appellant’s file was marked by numerous postponements caused by substitutions of lawyers, poor assessments of the time required for the trial and other similar applications.
In R. v. Cody (S.C. Can., 2017-06016), 2017 SCC 31, SOQUIJ AZ-51401510, 2017EXP-1801,  1 S.C.R. 659, the Supreme Court expressly recognized the trial judge’s power to summarily dismiss applications to stay proceedings. However, in Directrice des poursuites criminelles et pénales c. Grich (C.A., 2019-01-09), 2019 QCCA 6, SOQUIJ AZ-51559048, 2019EXP-129, the Court of Appeal specified that the trial judge must assess the chance of success of an application to stay proceedings. Such an assessment does not require an in-depth analysis, but at the very least it requires the trial judge to examine the alleged delay in light of the relevant factors. If the application is dismissed, the trial judge must indicate why he or she found it was used for dilatory purposes and had no reasonable chance of success.
An accused may present a motion for a stay of proceedings for unreasonably delay before sentencing and in spite of a conviction. A delay in presenting the application is a relevant factor when assessing the prejudice suffered related to delays. Therefore, this factor may be considered in light of the circumstances as a whole to determine whether the accused’s actions reveal a desire to be tried expeditiously. It is a relevant factor in the application of the transitional exceptional circumstances established in 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.
In this case, the trial judge erred by summarily dismissing the appellant’s application solely because it had been presented and served outside the time limit.
On the face of the record, the parties’ reasonably relied on the law, as it existed at the time. A contextual assessment of the parties’ conduct attracts the transitional exception due to: (1) the lack of mistakes or missteps attributable to the Crown and not to another; (2) the absence of significant prejudice demonstrated by the appellant’s conduct and the fact that he was at large and holding employment; and (3) the gravity of the offence of sexual assault against his 6-year-old niece and the fact that the 30-month ceiling was exceeded only slightly. In this case, the net delay of 31.9 months was justified and, as a result, the appellant’s application did not establish a reasonable chance of success.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca