Court of Appeal of Quebec

Xanthoudakis v. R.

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

Gagnon, Healy, Ruel

Motions to extend the time to file an appeal from a guilty verdict and for leave to appeal against the sentences. Allowed. Appeals from guilty verdicts and appeals against the sentences. Dismissed.

On June 2, 2016, after a jury trial, the appellants were found guilty of fraudulent transactions. They were sentenced on June 22, 2016. Xanthoudakis and Matteo filed notices of appeal within the required time, which were subsequently amended following R. v. Jordan (S.C. Can., 2016-07-08), 2016 SCC 27, SOQUIJ AZ-51302609, 2016EXP-2173, J.E. 2016-1212, [2016] 1 S.C.R. 631, rendered by the Supreme Court on July 8, 2016. On July 18, 2016, Weinberg filed a motion to extend the time to file an appeal from the guilty verdicts. Xanthoudakis and Weinberg also sought leave to appeal their sentences.

The appellants argue that their right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms (R.S.C. II, No. 44, Schedule B, Part I) was breached. In light of the new framework developed in Jordan, they submit that the case management judge erred in refusing to stay the proceedings before the trial after finding that the delay of 37 months and 21 days since the date of the charges was reasonable.

The appellants may raise the new principles developed in Jordan. Their file was still in the system when the Supreme Court judgment was rendered because the notices of appeal had been filed. The same is true for Weinberg due to his motion to extend the time to file an appeal.  

The judge did not err in dismissing the motion to stay proceedings. Many discrete events that could not be attributed to either party contributed to the delays, including the parties’ agreement to defer the preliminary inquiry, the appointment of the designated trial judge to the Court of Appeal and the difficulties in finding a replacement for that judge, the slowness of the case due to legal aid issues, the co-accused’s decision to plead guilty and testify for the prosecution, the difficulties with the disclosure of evidence and the systemic delays in the judicial district. This was also a complex case, particularly due to the number of charges, the number of accused and the volume of evidence. In addition, as regards transitional exceptional circumstances, nothing established that the parties failed to conduct themselves according to the law as it existed prior to Jordan.

Moreover, the appellants are entitled to raise for the first time on appeal the unreasonable delay of 2 years and 2 months between the time the trial started and the verdicts, if it is based on the conduct of the trial by the judge. The issue must have been raised at trial, however, so that the judge could have the opportunity to determine the issue, which was not the case here. Furthermore, there is nothing to conclude that the delay between the motion’s dismissal and the verdicts constitutes one of the clearest of cases of a violation of the right to be tried within a reasonable time that would justify a stay of proceedings.

With respect to the sentences, the appellants have failed to establish that the judge committed an error of principle in sentencing, particularly with respect to the principle of parity of sentences, or that they were demonstrably unfit based on the standard for appellate intervention.

*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca

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