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Quebec Drops Charges Against 31 Accused Drug Traffickers

The right to be tried without unreasonable delay is a pillar of the Common Law system of criminal justice. Developed under the reign of King Henry II, the protection sought to prevent the arbitrary confinement of individuals for unspecified periods of time. The imprisonment of political dissidents had become fashionable across the kingdom, and multiplied in the centralized autocratic polities of Central Europe. But, of course, a constitutional polity could not tolerate such a practice. Its iteration was abhorrent and clearly contrary to the principles of fundamental justice.

Fortunately for Englishmen – and later, for Britain’s Commonwealth progeny – the right was enshrined as part of the Magna Carta (1215). An accused offender would thence be brought to trial within a reasonable amount of time, lest a proceeding conforming to the rule of law justified a prolonged detention. The writ of habeas corpus was particularly useful. Not only did it mandate that trials be held within a reasonable time, but also that offenders could challenge the legality of their detention before an impartial court of law. Gone were the days where dissidents were jailed at the monarch’s request, and the protection is respected to this very day. For, as the saying goes, “justice delayed is justice denied.”

As a descendant of the Magna Carta and the English Declaration of Rights, the Canadian Charter of Rights and Freedoms has maintained this immemorial right. To be sure, under the heading of “legal rights,” section 11(d) of the Charter proclaims that: “Any person charged with an offence has the right to be tried within a reasonable time.” Put into practice, the section has, at times, led to the staying of proceedings by reason of unreasonable delay. Charges are dropped and the accused emerge unscathed. The reasoning might seem illogical, but is grounded in a fundamental necessity. For while the right to be tried without unreasonable delay is constitutionally enshrined, the price of upholding it will at times necessitate the freeing of obviously guilty individuals

The Quebec Case Study

This precise postulate was actualized this week in the province of Quebec. To massive popular outrage, Quebec Superior Court Judge James Brunton ordered the stay of proceedings against 31 accused offenders. Facing a variety of charges, these offenders were alleged members of the Hell’s Angels motorcycle gang and were arrested as part of a sweeping crackdown named “Operation Sharcq.” The operation netted 156 arrests, including some of the biker gang’s top brass.

The breaking of this news caused a considerable stir in the province of Quebec. People were mystified as to what could have justified the release of assumed criminals. The reason behind this is simple. The charges were dismissed by reason of impossibility of bringing the cases to trial within a reasonable time. Estimates held it would take between five and tears years before the last of the accused was brought to trial. Of course, such a delay could hardly be reconciled with the right to be tried within a reasonable time.

The logic of Justice Brunton’s ruling will also please the proponents of fiscal conservatism. The cost of trying offenders, and of maintaining the legal system, is of course borne by the taxpayer.

In recognition of the high costs of trials, attorneys will often refuse to pursue charges with little likelihood of conviction. The same principle applies with regards to Brunton’s ruling. For even if he had declined to stay the charges, it is unlikely that convictions would have been secured. Acquittals would be enforced by virtue of unreasonable delay. Thus, rather than maintaining the charges, and incurring considerable costs to try them, Brunton quashed the proceedings.

The reasons for unreasonable delay are linked to Quebec’s legal system. Grossly underfunded, the system is plagued by a lack of institutional resources restricting its ability to administer justice. Crown attorneys have tried to be creative in circumventing these deficiencies. In this case, Quebec’s prosecution service tried to expedite the proceedings by conducting so-called “mega-trials.” Upwards of thirty defendants were processed per trial, with four judges and separate juries presiding over the proceedings. This was, of course, a less than ideal situation.

Justice is never well-served when compromised for the benefits of expediency.

The hostility arising from this news was of course directed towards Jean Charest’s Liberal government. Already battered in the polls, Charest had ironically held a commission of inquiry investigating wrongdoing in the appointment of justices. The offenders’ release gave the PQ opposition a full round of fresh ammunition, forcing Charest to act in earnest. Thus, days after Brunton’s decision, Quebec’s Director of penal and criminal proceedings announced the filing of an appeal at the Quebec Court of Appeal. As a political manoeuvre, this is a sound manner of proceeding. It buys time and silences the voices of outrage for the immediate future. The voices But, as we shall come to see, there is little likelihood that Brunton’s ruling will be reversed.

Applicable Precedents

R. v. Askov (1990)

The outcome of an appeal is largely determined by the preponderance of two factors. First, an appeal will only be successful where a manifest error of law has been committed by the trial court. The nature of such an error must surpass the trivial. Only errors which have demonstrably affected the lower courts’ rulings will be considered. Of course, the determination will heavily weigh on the applicable precedents. This is the second relevant factor in our analysis.

The most relevant precedent is the case of R. v. Askov (1990). Decided by the Supreme Court, the case centered on an individual who challenged the Crown’s delay in bringing him to trial. Charges for extortion were originally brought in November 1983. Several delays ensued, and the case was finally heard in September 1986. At that time, defence counsel motioned to dismiss the proceedings. The request was granted, but overturned by the Court of Appeal, who found that any delays were justified. It was thus ordered that the trial should proceed.

Appealing to the Supreme Court, Askov restored the dismissal of his charges. More importantly, however, was the test advanced by the Supreme Court to determine whether a delay can be considered unreasonable. In a 9-0 decision, the Court held that four factors must be considered in the determination.

Of first importance is the length of the delay. This is followed by measuring the prejudice incurred by the accused as a result of the delay. A third consideration examines whether the accused waived his right to a speedy trial. And, last but not least, the courts must factor in the reasons for delay. These can arise from the inherent time requirements of the case; the actions of the accused; the actions of the Crown; and/or limitations in institutional resources.

The Court provided additional guidance with regards to defining the section 11(b) protection. First, the delay must be counted from the day the charge is laid to the day of the trial’s conclusion. Second, it was held that the longer the delay tends to be, the more difficult it becomes to assert that no prejudice has been incurred by the accused. Indeed, according to then-Chief Justice Antonio Lamer, “there exists an irrebuttable presumption of prejudice to the accused from the moment the charge is laid.” As such, “the accused need not demonstrate any further manifestations of prejudice beyond the kind presumed to establish an infringement.”

The burden of justifying the delay was furthermore imputed upon the Crown. Thus, in every case where an infringement of section 11(b) had been alleged and demonstrated, the Crown would be seized to explain. This latter requirement was grounded in the right’s fundamental importance. Timely trials are more conducive to trial fairness, insofar as they permit the defendant to make full answer and defence. Extending a delay for considerable periods of time may lead to the disappearance of witnesses and/or evidence.

Society also has an interest in speedy trials. The latter ensure that law breakers are dealt with quickly and that they are processed according to law. Victims are also better served by the quick punishment of malefactors. Immediate punishment is effective for future deterrence. By contrast, unreasonable delays prove deleterious to public confidence. As stated by the Chief Justice, “the failure of the justice system inevitably leads to community frustration with the judicial system and to a feeling of contempt for court procedures.”

The Court was however alive to issues frustrating the delivery of expeditious trials. Thus, in recognizing the difficulties arising from complex cases, the Crown also held that flexibility must be afforded where delays are due to institutional problems. As much as the offender’s right to a timely trial is important, it must be considered in light of the circumstances leading to the delay(s). Nevertheless, section 11(b) is of such high import that the lack of institutional resources may not justify excessive postponement of trials. Doing so would otherwise render the Charter protection meaningless.

R. v. Morin (1992)

The principles expounded in Askov were further explored in the case of R. v. Morin. The intervening period had yielded contradictory rulings and lower courts were clamouring for additional clarification. The Supreme Court gladly obliged.

At issue in the case was a delay of 14.5 months. And, as in the case of the 31 bikers from Quebec, the inability to ensure a speedy trial was related to institutional resources. The Court reminded the Crown of its duty to justify excessive delays. The lack of institutional resources could support greater flexibility, but not to the point of eviscerating section 11(b). Thus, the lack of institutional resources was to be reviewed objectively. The factor must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay. Otherwise, governments could deprive their legal systems of resources and simply blame delays on easily-avoidable quandaries.

The ruling was also instructive in setting out guidelines of acceptable delays. More specifically, the Court held that an average of between eight to ten months for institutional delays would be acceptable for provincial courts. Further allowances could be made based on the complexity of a given case. But, all justices agreed that there is a point in time after which delays resulting from resource limitations can no longer be tolerated.

The Morin case further expanded the principles laid out in Askov. Seeking to avoid frequent trial dismissals, the Court held that the test had to be balanced between the accused and the state. Thus, while the state has the onus of justifying an excessive delay, the accused would now be required to prove a few necessary elements. These include clear evidence of prejudice to the accused’s liberty or security of the person caused by the delay. It would no longer be sufficient to hold the mere charge as an inconvenience. Palpable proof of prejudice would now be required.

A second element advanced in Morin relates to the right to make full answer and defence. The Court had previously held that the latter was undermined by excessive delays. However, Morin held a distinction. The accused would have to prove that the delay affected his ability to make full answer and defence, if such an allegation was advanced. Lastly, it was important to ensure that section 11(b) did not only favour the accused. Thus, courts must now determine whether the individual and social interest in a speedy trial is outweighed by the social interest in seeing the individual brought to trial. This can be determined by the seriousness of the offence, the number of victims, and other related factors.

Application of Precedents

An application of the precedents seems to favour the defendants. In other words, it is highly unlikely that Justice Brunton’s ruling will be overturned. To some, this might seem nonsensical and contrary to the imperative of disciplining offenders. Reactions of this nature are understandable. Individuals are quicker to react by gut instinct rather than reasonable inquiry. But, as has been stated above, the offenders’ dismissal is secondary to the right upon which this ruling is premised. Again, the price of preserving the right will often entail freeing obviously guilty individuals.

Beginning with the principles laid out in Askov and Morin, the delay’s (un)reasonableness can be assessed as follows. The length of the delay plays a central role in the determination. In the present case, the charges were laid in October 2009. As of June 1st 2010, the cases had yet to go to trial, amounting to a delay of 20 months. The guidelines spelled out in Morinpressure us to consider an 8-10 month delay as reasonable. The guidelines do allow for some flexibility. But allowing a 20 month delay to stand without substantial justification is highly unlikely.

Another factor to be assessed relates to the prejudice suffered by the accused as a result of the delay. Whereas the Askovcase held that the mere fact of incurring charges is evidence of prejudice, Morin requires us to look further. Criminal charges may restrict the liberty of an individual, and may at times result in social stigma. Nevertheless, the offenders’ counsel will have to demonstrate clear and substantial evidence of prejudice. This can arise from restrictions

on travel, employment, and other such consequences. Moreover, it can certainly be argued that, even if such prejudice is not proven, the mere fact of having a trial delayed over a period of years is sufficiently inconvenient to establish prejudice. Charges pending over an extended period of time will even impede one’s ability to move away from criminality.

The third factor will perhaps be the least significant in the present calculus. An accused’s waiver of the right to a speedy trial will in most cases annul allegations of unreasonable delay. But even a waiver cannot justify an excessively long delay. In this case, there is nothing in the evidence that suggests the accused waived their section 11(b) rights.

The most pressing factor will undoubtedly relate to the reasons for the delay. These will undoubtedly make the difference in assessing whether the delay justified. The inherent time requirements of the case must first be considered. The evidence adduced thus far is incredibly voluminous. There have been over 2200 disks of evidence seized, and it is said that printing the documents would result in a 45 kilometre paper trail. However, it must be specified that the released offenders are facing minor charges. Those facing murder and other sentences have been processed first. Thus, as the offenders’ charges are minor, so must be the evidence against them. Otherwise, more substantial charges would have been laid.

The actions of the accused will also weigh in the consideration. I will honestly admit that I do not have much information on their actions, but it is clear that they did not waive their right to a speedy trial. Thus, barring any deliberate bad-faith tactics by the defendants, their actions will do little to justify the time delay. The Crown’s actions, on the other hand, may sway the calculus in the defendants’ favour. Despite inherent limitations, the Crown specifically chose to institute charges against all defendants at the same time. The Crown was, or ought to have been, aware that this would be problematic. The holding of mega trials illustrates their awareness of the problem, which did little to prevent unreasonable delays for other defendants.

The limitations in institutional resources will ultimately determine whether the delay was unreasonable. That is, after all, the fundamental reason why the trials have been delayed. One must, however, recall that such limitations are only excusable to a certain extent, and can never entirely justify the abridgment of the section 11(b) protection. To reiterate, the government has a constitutional obligation to ensure its legal system is properly equipped to deal with prosecutions. Here, we are of course referring to provincial courts, and the responsibility falls on the provincial government.

A final branch of the test consists in determining whether the individual and social interest in a speedy trial is outweighed by the social interest in seeing the individual brought to trial. The question can be addressed in either direction. On the one hand, the former seems to outweigh the latter in this particular case. Surely, there is an interest in bring these offenders to trial. But suspending their fate on an indefinite basis may only be justified in extreme circumstances.

The seriousness of the crimes must also be examined. The vast majority of these offenders were petty drug traffickers. Others were charged with non-violent offences. None of the dismissed charges affected those accused of murder, gun crimes and other such offences. Had those offenders been dismissed, then surely the Quebec Crown’s appeal would have succeeded.

Society has a genuine interest in being protected from violent offenders that extends the interests in a speedy trial. This is particularly true where the violence perpetrated by the offender rises to such a level that the dropping of charges undermines society’s confidence in the justice system. By contrast, society also has an interest in curtailing drug trafficking. However, the diminished seriousness of those offences fails to outweigh the social and individual interest in a speedy trial.

A final word must be devoted to the number of offenders whose charges were dismissed. In this case, the total number is 31. Thus, while our analysis may indeed ring true for some of the offenders, others might not be able to establish an infringement of their rights. The analysis will have to be conducted for each offender, including the evidence relevant to each case. The prejudice incurred by each offender might also differ based on their particular circumstances.

That being said, it is indeed possible that some charges will be reinstated. But such a determination belongs to the Court of Appeal, who will have the full evidentiary record before their learned eyes.

The number of offenders is also related to the outrage felt in the province of Quebec. Had Justice Brunton dismissed oneoffender, it is doubtful his ruling would have elicited attention. Thirty-one offenders being dismissed makes for great front-page coverage. Such headlines speak to the populist sentiment towards the justice system; that it is corrupt, soft on crime, and ineffective.

These perceptions are inherently flawed. The Court’s duty is to dispense justice, and to weigh the conflicting social interests in a given case. Here, the social interest in preserving the right to a speedy trial triumphed over the interest in bringing these offenders to justice. It is however to be noted that this is an exceptional case, and that these are exceptional results. How many other cases have led to the dismissal of charges against such a large group of individuals?

The Bigger Picture

Exceptional cases, like the one under study, arise from exceptional circumstances. Thus, if there is anything worthy of careful consideration, it is the circumstances leading to Justice Brunton’s ruling. We are here referring to the deficiencies in Quebec’s legal system. The lack of institutional resources has seriously undermined the administration of justice, and its related problems are now rising to the surface. Mr. Charest’s government must thus evaluate its financing of Quebec’s legal system, if it wishes for the system to function with efficacy.

Paltry resources have undermined the province’s legal system in other ways. The month of February witnessed a massive strike by Quebec’s prosecutors and government lawyers. The grievance had to do with salaries. Quebec prosecutors’ salaries currently range from $44,000 to $102,000, whereas the range in Ontario levels from $76,000 to $185,000. Moreover, upon resigning, Quebec’s chief organized crime prosecutor claimed that the province doesn’t have the capacity to deal with organized crime. A number of new lawyers will be hired over the next few years, but it doesn’t appear as if the situation will improve. The private sector is a lot more attractive for law school graduates.

Other aspects of Quebec’s legal system are equally troubling. And not all of them have to do with the government’s financial commitment. Questions have been raised with regards to the appointment of provincial judges. A high-profile commission of inquiry was summoned, finding numerous deficiencies allowing for undue influence. Another finding drew attention to the insufficient number of bilingual judges in administrative tribunals. All these issues point to one fundamental conclusion; namely, that the status quo is simply untenable.

Evidently, Quebec’s legal system is plagued by much more than insufficient funding. It is clear that solutions must be devised to address these systemic issues. The solutions must thus be devised sooner rather than later. A strong and well-resourced judiciary is fundamental to the functioning of democracy.

Unless the province invests massive resources in the system, we can only expect to see more dismissals of charges, and less effective justice being rendered at all levels. This will, in turn, lead to a further erosion of public confidence in the justice system, and undermine the primacy of Quebec’s judicial institutions. Quebecers deserve better.

Lawrence David Bisse is a graduate of Concordia University’s Department of Political Science. He will be attending McGill University’s Faculty of Law as of September 2011. Contact him at: