Par Rachel Rioux-Risi
Aujourd’hui, sur le blogue, nous revenons sur un jugement qui est actuellement sur toutes les lèvres, soit R. c. Thanabalasingham, 2017 QCCS 1271. Il a fait grand bruit dans les médias depuis sa publication.
Il s’agit d’une décision de la Cour supérieure ayant accueilli la requête en arrêt des procédures d’un homme accusé pour le meurtre de sa conjointe.
Le meurtre a été commis le 11 août 2012 et l’accusé a été arrêté le jour même. Son procès devait commencer aujourd’hui, soit le 10 avril 2017. Il s’est donc écoulé un peu moins de 4 ans et 8 mois.
Appliquant l’analyse de l’arrêt Jordan de la Cour suprême et considérant la mesure transitionnelle applicable, la Cour supérieure a conclu que le droit de l’accusé d’être jugé dans un délai raisonnable a été bafoué. Elle a tenu compte des éléments suivants :
 The accused is detained since the beginning of the proceedings, in August 2012, nearly five years ago. The Court takes this infringement to the accused’s right to liberty very seriously. It should be remembered that the accused is presumed innocent of the crime charged. He certainly suffered prejudice from his pre-trial incarceration. In any event, prejudice may be inferred from the length of the delay (R. v. Godin,  2 SCR 3, par. 30-31).
 While it can be argued that a murder trial before a jury is never a straightforward business, there is no indication that the present case is complex. No particular difficulty arises from the evidence or the issues to be debated. Complexity cannot account for the unreasonable delay in the present matter.
 In addition, the defence was cooperative and reasonable in the conduct of the proceedings, although it seemed that defence had been resigned to live with the delays, without being able to do much about it, until the release of the judgement in Jordan. It must be noted that the defence would have consented to committal at preliminary inquiry on second degree murder pursuant to s. 549 of the Criminal Code and would have been satisfied with a limited preliminary inquiry. Also, the defence agreed, along with the Crown, to have the trial advanced from February 2018 to April 2017.
 Further, the Crown did little to mitigate the lengthy institutional delay and to fulfill its duty to bring the accused to trial within a reasonable delay (R. v. Vassell,  1 SCR 625, par. 7). On the contrary, the Crown made questionable procedural choices that contributed to the delay when it initially charged the accused with second degree murder and later attempted in vain, based on weak evidence, to have him committed on first degree murder by the preliminary hearing judge (R. v. Manasseri, 2016 ONCA 703, par. 367). This is not to point the finger at anybody, but a better cost-benefit analysis in prosecution decisions making would have better served the justice system (R. v. Rodgerson,  2 SCR 760, par. 45-46).
 It appears from the record that most of the delay in the present case was caused by the chronic institutional delay problem that have plagued the criminal justice system in the district of Montreal, for the past several years. The Court must account for this reality. The transitional exceptional circumstance criteria established in Jordan provides for some degree of tolerance for institutional delay in cases that were already in the system (Jordan, par. 94-98).
 Nevertheless, transitional exceptional circumstances cannot be invoked to excuse every institutional delay in every case. Here, the delay is too long and it is unjustified. Again, the delay vastly exceeds the presumptive ceiling of 30 months. The institutional delay also greatly surpasses the Morin guidelines. Reliance on previous law cannot justify the nearly five years it took to bring the accused to trial. The accused awaited trial in custody for an unreasonable amount of time while being presumed innocent of the charge against him. The case is not complex. The charge is very serious but this factor cannot alone justify the delay. The Crown failed to be proactive and even contributed to the delay.
 The accused’s right to a trial within a reasonable time has been violated.
La décision est disponible est ici.