Court of Appeal of Quebec

Poitras c. R.

Gagnon, Cournoyer, Baudouin

Appeal from a judgment of the Court of Québec dismissing in part an application for a stay of proceedings due to unreasonable delay. Dismissed.

The appellant faced 39 counts in relation to luring a child and producing child pornography, specifically, two counts laid following his arrest in 2012 and 37 counts laid in 2016, following the preliminary inquiry. In 2017, the trial judge ordered a stay of proceedings on the initial 2 counts but dismissed the application for the 37 new counts because the time to be computed for those counts started to run on the day of the order to stand trial. The appellant argues that the judge erred in dismissing in part the application for a stay of proceedings and that his trial was not held within a reasonable time.

Since R. v. Kalanj (S.C. Can., 1989-06-22), SOQUIJ AZ-89111073, J.E. 89-1013, [1989] 1 S.C.R. 1594, there has been no ambiguity regarding the starting point of the computation under section 11(b) of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I): it is the date of an actual charge, not a possible charge, even if the accused is aware of the possibility. Delays before the charge must be assessed under section 7 of the Charter, not section 11(b). Guimont c. R.  (C.A., 2017-11-08), 2017 QCCA 1754, SOQUIJ AZ-51440393, 2017EXP-3202, does not apply in this case. First, the new counts constitute a new charge. Second, the order to stand trial was for new counts that did not arise from the same transaction within the meaning of section 548 of the Criminal Code (R.S.C. 1985, c. C-46). They are separate and independent offences unconnected to the charges initially laid. The judge therefore did not err in law by accepting the date of the order to stand trial when fixing the day the charges were laid for the purposes of section 11(b) of the Charter.

The issue of the reasonableness of the total delay of 35 months between the order to stand trial and the end of the appellant’s trial was raised for the first time on appeal. It could be dismissed for the sole reason that it was not raised at trial. The delay arising from the unavailability of the appellant’s counsel on the first proposed trial date is entirely attributable to the appellant. Regarding the period that includes the guilty plea, its withdrawal, and the start of the trial, the appellant considers that the delay between the time when the trial date was set and when it began cannot be attributed to him. The effect of the withdrawal of the plea on the computation of the time is an issue that has never been decided by a Canadian court of appeal. Once restored by the withdrawal of his plea, the accused’s right to be tried within a reasonable time must be respected. The net delay already accrued cannot and must not be deducted. The computation of the time does not restart at zero. The correct method is therefore to compute the total time and the net time by subtracting the delays attributable to the accused. After the withdrawal of a plea, the time required to set the date of the trial and for the trial to begin is inevitable. The entire delay between the appellant’s guilty plea and the start of his trial must be subtracted from the total delay, resulting in a net delay of slightly over 12 months.

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