Un ex-accusé de crime sexuel poursuit la procureure générale pour 2 M$

If
If the facts relayed in the article are accurate and if the guy really is retarded, Dagenais should be fired and the state should negotiate a settlement with the guy, pure and simple.

Droit criminel
Ce n'est pas le procureur qui décide de maintenir un accusé en détention. Il a le droit de s'objecter lors de la comparution. Après, c'est un juge qui ordonne sa détention. Ce n'est donc pas Me Dagenais qui a rendu l'ordonnance de détention.

Et un accusé a toujours le droit de demander la révision de son ordonnance de détention, entre autre devant un juge d'une cour supérieure. L'a-t-il fait? Avait-il un avocat qui le représentait? SI oui, il a fait quoi, cet avocat, pour préserver les droits de son client?

Et pour compliquer le tout, l'accusé est inapte à subir son procès. Ce qui signifie que les procédures sont normalement suspendues en attendant qu'on détermine si oui ou non, il sera un jour apte. S'il n'y a pas bon espoir qu'il redevienne apte dans un court délai, l'accusé devrait alors être confié à la commission d'examen qui va gérer son cas. Ce n'Est plus au tribunal de s'en occuper. Et encore moins au procureur.

Ici encore, on ne sait pas ce qui s'est produit.

Tout ça pour dire qu'il ne faut jamais se fier à un article d'un média, peu importe qui il est. Les faits ne sont jamais complet. D'autant plus si l'article se base uniquement sur la requête introductive d'instance, qui se gardera bien de mentionner des faits défavorables au demandeur...

Hummm...
Comment ça fonctionne au juste? Si t'es inapte, est-ce que le réultat est le même que si t'es déclaré non-coupable pour cause d'aliénation? C'est-à-dire, l'état ne doit-elle pas protéger le public?

Triste histoire
Ce dossier est d’une tristesse et d’une complexité incroyable. Plusieurs avocats de la défense y ont travaillé des années, de manière pro bono, face à une position bizarrement campé et inflexible de la part de la poursuite - je ne pourrais pas dire s’il s’agissait systématiquement de décisions de Me Dagenais. Une chose est certaine, cette histoire ne reflète pas particulièrement bien sur la poursuite de manière générale.

Bap
Donc Me Larochelle est confortable de recevoir un mandat de la part de quelq'un qui a 8 ans d'âge mental ?

QCCS Judgement
Desmarais v. R., [2017] Q.J. No. 3864

JUDGMENT

OVERVIEW

1 This matter comes as close as can be to a Kafkaeque procedural nightmare one can envision. As notes the Court of Appeal noted in its June 9, 2017,1 judgment for reasons not satisfactorily explained, at that time, by either the petitioner or the Crown, the former is presently detained in a regular detention center and a court yet to has determined if he is fit to stand trial, even though this question is before the Court of Quebec since September 20132. To make matters worse, if possible, he has been detained for a longer period than the one for which he would have been sentenced, in all likelihood, had he been tried and found guilty of the offences for which he was initially charged3.

1. THE PETITIONER

2 The Petitioner was born in 1982, he is now a 35 years old man under a tutorship order, as to both person and property, further to a judgment of this Court of April 28, 2003. His legal rights are currently exercise by a social worker, appointed as tutor on June 7, 2007 by another judgment of this Court.

3 He has the following criminal record:

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Sexual assault: 1996, 2000, 2001 (2) and 2013;



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Assault: 1998;



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Breaking and entering with intent: 2001;



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Failure to comply with probation order: 2005(3), 2006(2);



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Failure to comply with condition of undertaking: 2005(2);



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Resistance to a Peace officer (2005);



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Escape from lawful custody (2005);



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Failure to comply with condition of undertaking (2005);



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Theft (2006).



4 In 2003, the Petitioner was found to have a neuropsychological profile compatible with a moderate to mild mental deficiency. His I.Q. is of the same nature. In 2010 his conceptual reasoning and abstract thinking, planning and foresight, problem solving and language comprehension were found to be the equivalent to that of a five to eight year old child. He is essentially illiterate and reads at a mid to end of grade-one level.

5 In 2014 an evaluation by a speech-language pathologist confirmed that he suffers from a severe receptive-expressive language disorder, that his ability to understand oral language is in the seven to ten year old range, that his ability to express himself is in the four to eight year old range and his score regarding short term memory related to recalling the meaning, structure, and intent of spoken sentences directions and instructions is the equivalent to that of a four years and six months old.

2. THE CHRONOLOGY

6 R.L.D. was arrested on September 30, 2010 and charged on October 1, 2010 with five offenses related to two events, namely:

1.On or about September 30, 2010, in Montreal, district of Montreal, did commit a sexual assault on C.L.S., committing thereby the indictable offence provided by 266a) of the Criminal Code.
2.On or about September 30, 2010, in Montreal, district of Montreal, did commit a sexual assault on C.R., committing thereby the indictable offence provided by section 266(1)a) of the Criminal Code.
3.On or about September 30, 2010, in Montreal, district of Montreal, did commit an assault on C.R., committing thereby the indictable offence provided by section 266 a) of the Criminal Code.
4.On or about September 30, 2010, in Montreal, district of Montreal, did confine, imprison or forcibly seize C.R., committing thereby the indictable offence provided by section 279(2)a) of the Criminal Code.
5.On or about September 30, 2010, in Montreal, district of Montreal, did carry or possess a weapon for a purpose dangerous to the public peace and or the purpose of committing an offence, committing thereby the indictable offence provided by Section 88(2)a) of the Criminal Code.
7 The accusations deal with two events that occurred on the same day. The first concerns a female victim who was approached and grabbed by the accused while she was jogging on Mount-Royal in Montreal. The second concerns another female jogger who was forcibly constrained by the accused and touched inside her pants on the pubis and under her coat on the breasts. The accused was found to be in possession of a kitchen knife, but he did not use it for the aggressions.

8 lt appears that he was a known sex-offender at that time. The conclusion by Doctor Jacques Bouchard, in June 2010, in an evaluation performed for other proceedings was that the Petitioner had never and would never in the future be fit to stand trial due to his intellectual deficiency.

9 The hearing pertaining to his fitness to stand trial began on November 24, 2010 and after hearings in December 2010 and January 2011, the Court of Québec ruled that he was unfit to stand trial under 672.22 Cr. c.

10 On April 8, 2011, the Court issued a warrant of committal in virtue of section 672.57 Cr. c. ordering that he be taken in the custody of either the Douglas Hospital or Pinel and that the file be transmitted to the Review Board (RB).

11 A further judgment of April 12, 2011 recommended his transfer in the shortest delay possible to one of the above mentioned institution, until a disposition hearing to be held by the RB within 45 days.

12 The same day, he was transferred to Douglas for seven days while awaiting a bed at Pinel. He was then detained at the Rivière-des-Prairies (RDP) detention center for 193 days.

13 On December 12, 2011, the RB concluded that the Petitioner was unfit to stand trial and ordered his detention at Pinel with a possibility of outings under surveillance.

14 On May 31, 2013, he appeared before the Court of Québec in accordance with section 672.33 Cr. c. and a hearing was set for September 6, 2013.

15 On July 2, 2013, while on a Pinel organized bicycle trip, the Petitioner escaped since no-one-on one supervision was provided at that time. On July 3, 2013 a warrant was issued for his arrest.

16 He had then been detained at Pinel for 803 days.

17 On July 4, 2013, the police informed his tutor that he had been located, but he was detained and interviewed at the police station without the presence of the latter.

18 On July 5, 2013, he appeared in what can be called the "escape file", by contrast to the "assault file", and a not guilty plea was entered according to 606(2) Cr. c. The D.P.C.P. objected to his release and the bail hearing was postponed to July 10, 2013, while he was detained at RDP.

19 In the eyes of the Court, this is the moment when the Kafkaesque judicial scenario started to unfold. It would become fastidious and tedious for the Court to recite every court appearance. Thus the Court with limit it's enunciation to what it considers necessary to understand the situation, brushed in a general fashion.

20 From that moment on, for reasons that can seriously be questioned, the D.P.C.P. objected to the Petitioner being brought-back under the custody of Pinel or of any other similar institution.

21 On that date, neither the accused, nor the D.P.C.P. or the Court requested an assessment in light of section 672.12 Cr. c., the former requesting to postpone the bail hearing in the escape file, in order to allow the RB to render its decision in the second hearing on his fitness to stand trial in the assault file.

22 On September 10, 2013, after a hearing under 672.54 Cr. c., the RB decided that the Petitioner was fit and ordered that he be sent back to the Court of Québec, ordered his detention at Pinel without the possibility of outings and his placement at RDP, and a warrant of committal was thus issued on September 24, 2013 by the RB. The orders reads:

ORDONNE la détention de l'accusé à l'institut A sans possibilité de sorties;
ORDONNE le placement de l'accusé au Centre de détention A
23 It is to be understood that the first paragraph of the order refers to Pinel and the second to RDP. The placement of the Petitioner, agreed upon by the TAQ acting as RB under sections 672.38 et al. Cr. c., follows the will of the accused and the opinion of the expert Watts and the fact that the Petitioner refuses any treatment4.

24 However, the following statement found in the decision5 of the TAQ, 2013 LNQCTAQ 199, appears, with respect, to contradict the prior statement:

[78] Lorsqu'il parle de sa propre cause, il dit qu'il ne veut pas aller en prison puisqu'il n'y sera pas traité pour son problème. Il craint les conséquences possibles d'un éventuel jugement qui lui sera défavorable.
25 Even if this Court was to conclude that this is not a contradiction it is, at the very least, an equivocal position taken by a persan who, as a matter of fact, possesses very limited intellectual abilities. According to Winko v. British Columbia (Forensic Psychiatric Institute),6 the RB has a duty to ensure that the accused, in such circumstances, receives wat was best for him, if possible.

26 It is important to keep in mind what the Supreme Court stated concerning the duties of an RB in similar circumstances:

[62] On this interpretation of Part XX.1 of the Code, the duties of a court or Review Board that is charged with interpreting s. 672.54 may, for pratical purposes, be summarized as follows:
(...)
9.When deciding whether to make an order for a conditional discharge or for detention in a hospital, the court or Review Board must again consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of the NCR accused into society, and the ether needs of the NCR accused, and make the order that is the least onerous and least restrictive to the NCR accused.
27 That stated the order by the RB must be respected, inasmuch as it has not been contested and found to be illegal, and since it cannot be modified by anyone other than the RB7 or by a Court of competent jurisdiction8.

28 On October 17, 2013, the Petitioner contested before the Superior Court the decision of the RB in the assault file that concluded he was now fit to stand trial.

29 As of October 21, 2013 both files proceeded together before the Court of Québec. A new attorney then appeared for the Petitioner, but he needed to study the files. It bears noting that on October 18, 2013, the Supreme Court of Canada dismissed the Petitioner's motions regarding previous convictions.

30 Also, for reasons that appear strange to this Court, to say the least, the bail hearing in the escape file was not addressed before April 1, 2015, some eighteen months later.

31 On November 14, 2013 the new attorney appeared formally at court and both matters were set for February 10, 2014.

32 On November 26, 2013, this Court indicated that it did not have jurisdiction to hear Petitioner's contestation of the September 10, 2013, decision by the RB filed October 17, 2013.

33 On February 10, 2014 a case management hearing at the Court of Québec was held in order to set the hearing date for June 10, 2014. It was at that date that the Petitioner's attorney requested a language evaluation assessment. Thus the hearing was postponed to September 4, 2014, when the Court of Québec was informed that the expertise was not completed. This led to a postponement to October 15, 2014 when the Petitioner's attorney indicated that he was trying to obtain a psychiatrie evaluation to contest his client's fitness to stand trial decision. The next date was December 17, 2014, but the Petitioner's attorney was sick at that time and the date of February 19, 2015 was set.

34 In the meantime, around February 2015, the Petitioner was transferred to Bordeaux, for reasons unknown, even though the disposition order of the RB had not been modified. Nothing in the record indicates why this transfer occurred.

35 The Petitioner had then been detained at RDP for 575 days.

36 Because his expert report was not ready on February 19, 2015, Petitioner asked for a postponement, and a pro forma date was set for April 1, 2015 and the dates of September 18, 24 and 25, 2015 were set for the hearing. At the pro forma hearing the dates of November 5 and 6 were added for the hearing.

37 It appears important to note that at the pro forma hearing, the Court of Québec concluded that it did not have jurisdiction to conduct a bail hearing in the assault file but that it did in the escape file. The Petitioner's attorney, allegedly for expediency reasons and without renouncing any rights to bail, waived the bail hearing in the escape file solely on the basis that he was being detained in the assault file.

38 More importantly, the Court underlines that on that occasion, the Court of Québec raised the issue of the legality of Petitioner's detention at Bordeaux. It seems that it did not bring about any enlightened actions by his attorney at that moment, nor did the Crown appeared to be concerned by this matter. With all due respect, the Court cannot understand why.

39 It was also decided then that the fitness hearing would take place simultaneously in both cases since the evidence and the witnesses were identical.

40 On June 2, 2015, a hearing was held to ascertain the number of witnesses and their availability and another case management hearing was held on June 19, 2015.

41 On August 28, 2015, the D.P.C.P. showed that prima facie evidence existed in order to continue to be authorized to proceed in the assault file, in accordance with 672.33 Cr. c.

42 On September 18, 2015, the fitness hearing started in both cases. The D.P.C.P. presented witnesses who were not scheduled for that day and evidence that was disclosed belatedly to the Petitioner, with the obvious consequence that it impacted his preparation of the case.

43 On September 22, 2015, the Crown requested a new evaluation in virtue of 672.11 a) Cr. c. and on September 23, 2015, it revised and increased its witness list. On September 24, 2015, the Court of Québec ordered a new fitness evaluation in the escape file, to take place within 5 days by Dr. Watts, who would provide either a verbal or written assessment by September 30, 2015.

44 The hearing of September 25, 2015, was cancelled because the D.P.C.P. wanted Dr. Watts to testify only after his Re-evaluation of the Petitioner. A pro forma date was set for September 30, 2015. At that time, his report was not ready and he was given until October 26, 2015 to complete it.

45 After a pro forma hearing on October 8, 2015, confirming the date of November 5, 2015, to continue the matter, the hospitalisation of the Petitioner's attorney cause a postponement to December 9, 2015. Dr. Watts then testified, but his cross-examination was not completed on that day. This caused a postponement to October 13, 2016, because the D.P.C.P. was unavailable prior to that date.

46 At this stage of the chronology, it is important to note that the Petitioner was evaluated in June 2016, at Bordeaux. The evaluation allowed him to be admitted, if possible, at Vita Community Living Services, an Ontario based organisation, which provides a three year highly specialised rehabilitation service to adults with developmental disabilities and who have committed sexual offences.

47 On September 13, 2016, the attorney for the Petitioner informed the Court of Québec of the existence of VITA and the acceptance of the Petitioner at that facility. However, for medical reason, she was forced to withdraw from both the file and her legal practice.

48 More importantly, at that hearing, the D.P.C.P. specifically stated that the Petitioner had "done his time" and had endured sufficient "punishment" for the accusations and that the D.P.C.P. would not be asking for either any more jail time nor requesting that the Petitioner be evaluated as a dangerous offender (section 753) nor a long term offender (section 753.1) if he agreed to plead guilty to all charges in both files; then the D.P.C.P. would agree to the Petitioner going to VITA, as a condition of a three year probation order.

49 The D.P.C.P. indicated, however, that it would object to his release on bail if the Petitioner did not settle his files by a guilty plea.

50 On September 16, 2016, the new attorney for the Petitioner requested a bail hearing in both files.

51 The Petitioner did not accept the pie a bargain and the procedures continued.

52 On September 30, 2016, the parties started to debate the question of the jurisdiction of the Court of Quebec to hold bail hearings in both files.

53 On the date, the Court asked the D.P.C.P. if it was not time to concede, given the length time the Petitioner had been detained, that he had served his time.

54 The D.P.C.P. answered that the tutor's decision to contest the Petitioner's fitness was inappropriate and that since the Defense had refused the plea bargain, the D.P.C.P. would ask that the Petitioner be evaluated for a dangerous offender (section 753) or long term offender (section 753.1) disposition if he was found guilty.

55 The D.P.C.P. then announced the filing of a motion for the issuance of a writ of prohibition to prevent the Court of Québec from conducting a bail hearing in the assault file. This suspended that proceeding, because of the rules of Practice of this Court, but it did not preclude the Court of Québec to continue the bail hearing in the escape file, where the Petitioner asked to be released into the care of VITA. The Crown objected to this request. Unfortunately, due to technical problems and the lack of cooperation from the Crown, the hearing had to be postponed to October 27, 2016 and was to conclude on October 31, 2016 with the finals submissions and arguments.

56 On that date, it was disclosed that a new attorney would represent the Petitioner in both files, and due to the unavailability of the D.P.C.P., the hearing was set for January 18, 19 and 23, 2017. It was also decided by the Court of Québec that it had jurisdiction to hear a bail hearing in the escape file. It appears important to underline that the Crown refused to provide a consent to set aside any waiver that the Petitioner might have made earlier in this regards.

57 That led to the filing of a second application for the issuance of a writ of prohibition, this one in the escape file.

58 All of that led to another procedural battle, namely a request by the Petitioner to have the D.P.C.P. application quashed. This Court did so in the assault file on November 15, 2016. This judgment was set aside by the Court of Appeal on June 9, 2017 as referred to earlier. The Court will discuss this judgment at greater length later in its judgment.

59 Because of the unavailability of Dr. Watts the hearing dates of January 2017 were changed to January 24, 25 and 26.

60 On December 27, 2016, the Petitioner filed a Motion for Stay of Procedures and for Abuse of Process before the Court of Québec which he withdrew on January 19, 2017 during a case management hearing, because he intended to present same before this Court.

61 On that date, for reasons that this Court cannot understand, the Petitioner filed a motion for a postponement and cancellation of summons, in both files, because the D.P.C.P. would have indicated that it intended to add five new witnesses and two new documents in the course of the fitness hearing. The Court of Québec granted the motion and postponed both files pro forma until after the abuse of process motion was heard by this Court.

62 The motion for abuse was filed on February 1, 2017. The parties appeared on the 3rd and it was set to be heard on the 10th. At that time, the D.P.C.P. filed a motion to dismiss, which resulted in the hearing being set pro forma for February 17, 2017 when a formal hearing date was set for March 30, 2017.

63 In the meantime both files before the Court of Québec were put off to April 5, 2017 pro forma.

64 At the date set for the hearing before this Court, the D.P.C.P. asked for a postponement since its representative indicated that she was new in the file and was not prepared to proceed. The abuse of process motion was rescheduled for May 18, 2017 and continued on June 6, 2017 and was completed the next day. This matter is under advisement before this Court.

65 On April 5, 2017, the hearing before the Court of Québec was postponed to June 8, 2017 and at that date to June 16, 2017 when the fitness hearing was set for November 15, December 4 and 7, 2017 and January 8 and 12, 2018.

66 On June 29, the D.P.C.P. demonstrated that a prima facie case still existed under section 672.33 Cr. c. in the assault file.

67 On November 6, 2017, during a case management hearing, in another mind boggling development, the D.P.C.P. asked, that the hearing schedule to continue on November 15, 2017 be postponed because a new prosecutor had to be assigned to the file and that this person was not available at the dates scheduled five months earlier!

68 The matter was postponed pro forma to November 24, 2017.

69 In the meantime, the Petitioner filed the present motion dated November 16, 2017. It is worth painting out that it alleges that VITA can still offer him the specialized rehabilitation treatment program it offers.

70 For the purpose of this hearing, it was agreed by the parties present, that the VITA program would be the equivalent of the treatment received by the Petitioner at Pinel and that it qualifies as a hospital under section 672.54 c) Cr. c.

3. THE POSITIONS OF THE PARTIES

71 The Petitioner claims he is in a "void" or "no man's land". He is seeking, in the assault file, that this Court issue a writ of prohibition and either, stay the procedures or render an order to discharge him absolutely or to acquit him. He submits that the Court of Québec has lost jurisdiction as all of the inquiries to permit the D.P.C.P. to demonstrate the existence of a prima facie case were not held within the delay of two years from the verdict prescribed by the law and without having been satisfied, upon an application by the prosecutor of the accused, that the extension was necessary for the proper administration of justice.

72 In the escape file he is asking the Court to issue a writ of prohibition to preclude the Court of Québec from holding a fitness hearing or decide the case since it does not have jurisdiction over an unfit individual who does not comply with a disposition order of the RB and either, stay the procedures, make an order to discharge him absolutely or acquit him of this charge because he claims that this charge should never have been laid in the first place.

73 In the event the Court does not grant such remedies he is asking to be released immediately either through a writ of habeas corpus or as a remedy under section 24(1) of the Charter for the multiple violations of his rights under section 7, 10 c), 11 b) and 12 of the Charter.

74 At the hearing on the present motion, the Court requested from the Crown, its position on the merits of both accusations. It stated that in the assault file, it would request a suspended sentence, with a one year probation order, and a suspended sentence in the escape file.

4. ANALYSIS

75 After 35 appearances before the Court of Québec, and 9 before this Court, notwithstanding the appeal proceedings, this Court can say that, in the present set of circumstances, there must be a way and a mean to end this procedural nightmare.

76 In that regards, it appears necessary to quote at length parts of the judgment of the Court of Appeal of June 9, 2017:

[41] If bail is not available to the respondent as an unfit persan, what, can be done to address his circumstances in the present case? Although this question is not squarely before us, we allow ourselves the following observations without in any way deciding the matter.
[42] The Court is fully mindful of the incongruity of the present circumstances in which the respondent has been detained, by his own calculation, for more than six years. This is, in his view, a period longer than that for which he would have been detained had he been tried and found guilty of the offences for which he was initially charged. The Court recognizes, further, that the respondent is currently detained at the Bordeaux Jail, rather than in hospital or other therapeutic setting, and takes most seriously the submission of counsel that in a detention centre he is vulnerable to unfair treatment.
[43] The Court observes further that the parties disagree as to the reasons for this long period of detention and for some of the postponements of the fitness hearing.
[44] At the hearing on appeal, the Court asked respondent's counsel why he had not sought the issuance of a writ of habeas corpus in Superior Court, framed either as an extraordinary remedy based on a demonstration that an alleged illegal detention or, alternatively, as a constitutional remedy potentially available under section 1 Oc) of the Charter.
[45] Beyond a brief comment that counsel was unsure that the detention is illegal, no satisfactory explanation was offered.
[46] In R. v. Gambie, [1988] 2 S.C.R. 595 and then in R. v. Sarson, [1996] 2 S.C.R. 223 the Supreme Court commented on the availability of habeas corpus based on the infringement of a Charter right. In the latter case, recalling Gambie, Sopinka J. wrote for the Court, at para. 40, that where habeas corpus is "sought as a Charter remedy (rather than merely under the common law), the Court must adopt a purposive approach in choosing whether or not to issue the writ". When a Charter right is at stake, Courts should not deny habeas corpus by adopting an overly rigid or technical interpretation of the relevant rules.
[47] Absent a statutory authority to deal with what is said to be an illegal or arbitrary restriction of the respondent's liberty, one might envisage that route.
[48] The appellant suggested the respondent could have asked the Superior Court for the issuance of a writ of procedendo, so that his application to be declared fit for trial by the provincial court judge be heard by preference and with ali due dispatch. Respectfully stated, the respondent's answer - that he perceived there to be a risk that the judge would be on vacation - is unsatisfactory. But it bears noting that if a writ of mandamus or procedendo is available to have the hearing on the fitness issue continued, these writs are theoretically open to the prosecution as well. Again, it is difficult to understand how and why the parties governed themselves in this particular case. But to repeat, this issue is not before the Court on this appeal.
77 Also, in regards to what appears to be a problem in the D.P.C.P. office to be able to have an attorney able to proceed in due course, the decision of R. v. Picard9 of the Court of Appeal of Ontario can be of assistance and should be kept in mind:

[108] There is no doubt that the choice of counsel to prosecute a particular case is a matter for the Attorney General or his or her representative. The court does not play a role in that decision. It is equally beyond doubt that it is the court that sets trial dates. In deciding when a trial should start, the court must have regard to the various legitimate concerns advanced by the defence and the Crown as well as systemic and institutional concerns. In some prosecutions, and this is certainly one, the Crown has a legitimate interest in having senior counsel, who have had carriage of the prosecution throughout, represent the Crown at trial so as to maintain continuity in the prosecution. That interest is, however, only one of many legitimate concerns that must be taken into account. Accommodating the Crown's desire to maintain continuity in the prosecution of the case must be balanced against other concerns, notably the continued imprisonment of an accused, who is presumed innocent, for an additional lengthy period of time. In this case, the accused had already been in custody for two and a half years and the proposed trial date was eight months in the future, giving the Crown ample time to make alternative arrangements.
[109] I disagree therefore with the decision of the motion judge who heard the motion to expedite and would not have given effect to the Crown's position and the premise on which it was granted. In my view, a proper exercise of the Court's discretion in setting the trial date on the motion to expedite should have led to a trial date in February. It would then have fallen to the Attorney General or his designate to decide who would prosecute the case. As a result, I see no error in the trial judge concluding that the Crown's reliance on prosecutorial discretion to oppose the setting of a February trial date was in this case unreasonable.
78 In regards to the way courts of all jurisdiction should address cases of a similar nature, we must remember and apply the lessons of Winko,10 where the Chief Justice of Canada stated:

[42] By creating an assessment-treatment alternative for the mentally ill offender to supplant the traditional criminal law conviction-acquittai dichotomy, Parliament has signalled that the NCR accused is to be treated with the utmost dignity and afforded the utmost liberty compatible with his or her situation. The NCR accused is not to be punished. Nor is the NCR accused to languish in custody at the pleasure of the Lieutenant Governor, as was once the case. Instead, having regard to the twin goals of protecting the safety of the public and treating the offender fairly, the NCR accused is to receive the disposition "that is the least onerous and least restrictive" one compatible with his or her situation, be it an absolute discharge, a conditional discharge or detention: s. 672.54.
79 Applicable to our situation, section 672.54 Cr. c. reads:

672.54 When a court or Review Board makes a disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the ether needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances:
(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;
(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or
(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.
80 Considering that section, the Chief Justice opined:

[47] The introductory part of s. 672.54 requires the court or Review Board to consider the need to protect the public from dangerous persans, together with the mental condition of the accused, his or her reintegration into society, and his or her ether needs. The court or Review Board must then (the operative verb is "shall") make the disposition - - absolute discharge, conditional discharge, or detention in a hospital - - "that is the least onerous and least restrictive to the accused". As this Court noted in Swain, [1991] 1 S.C.R. 933, supra, the only from significant threats to its safety. When the NCR accused ceases to be a significant threat to society, the criminal law loses its authority: swain, supra, at p. 1008. Part XX.1, as noted, is founded on this assumption. It follows that if the court or Review Board fails to positively conclude, on the evidence, that the NCR offender poses a significant threat to the safety of the public, it must grant an absolute discharge. Any doubt on this score is removed by the injunction that the court or Review Board shall make the order that is the least onerous and least restrictive to the accused, consistent with the evidence.
81 And she concludes that absent a finding that the NCR accused represents a significant risk to the safety of the public, there can be no constitutional basis for restricting his or her liberty11.

82 Asto how that difficult task must be dealt with, she stated:

[59] It may be surmised that it is precisely because of this difficulty and context-specificity that Parliament has seen fit to replace the categorical common law approach to the mentally ill accused with a flexible scheme that is capable of taking into account the specific circumstances of the individual NCR accused. Moreover, although it has allowed courts to make an initial determination, Parliament has created a system of specialized Review Boards charged with sensitively evaluating all the relevant factors on an ongoing basis and making, as best it can, an assessment of whether the NCR accused poses a significant threat to the safety of the public. This assessment is not a guarantee, but it is unrealistic to expect absolute certainty from a regime charged with evaluating the impact of individual, human factors on future events. As La Forest J. wrote in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 364, in the context of the dangerous offender provisions of the Code:
... the life of the law has not been logic: it has been experience. The criminal law must operate in a world governed by practical considerations rather than abstract logic and, as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring.
83 In its decision of July 4, 2017 in the present matter, the Court of Appeal addressed the question of the power of the RB under 672.54 Cr.c.:

[29] Importantly, Parliament has directed at section 515 Cr. c. that "a persan charged with an offence / un prévenu inculpé d'une infraction" may be released after a bail hearing subject to conditions contained either in an undertaking or a recognizance. An unfit person is not a persan charged with an offence when a verdict confirms he or she is unfit to stand trial. That persan further cannot understand the commitment he or she makes before a judge to respect conditions for release. There is reason to think that an unfit persan would not have the requisite mental element for the offence of failing to respect conditions of release in the event that those conditions were not respected. It bears noting that, contrary to section 515, the rules on disposition made by the Review Board in section 672.54 Cr. c. make no reference to either an undertaking or a recognizance. The disposition of a Review Board cannot order conditions of release that would be subject to criminal sanction if not respected.
84 It that regard, it can be useful to keep in mind what the Court of Appeal of Ontario said in Re Young12:

[26] The important difference between a conditional discharge and a detention order lies in the mechanism available to the hospital to return Mr. Young to the confinement of the hospital if necessary for the safety of the public. If the Review Board released Mr. Young on a conditional discharge, it could return him to the hospital by convening a new hearing under s. 672.82(1), by resorting to the provisions governing breaches of conditional discharges found in s. 672.92, or through the committal provisions available under the Mental Health Act. If, however, Mr. Young were subject to a detention order, he would be at large under the terms of a warrant of committal issued pursuant to s. 672.57. If CAMH determined that the safety of the public required Mr. Young's confinement in the hospital, it could simply direct the authorities to exercise the warrant and return Mr. Young to the hospital. Re-confinement of persans who are subject to a detention order is significantly more expeditious than re-confinement of persons at large on a conditional discharge. Re-confinement of persons under detention orders is also available as a preventative measure, whereas re-confinement of those under a conditional discharge will usually be available only after a breach of the conditions of that order.
85 And on the same subject, in Germaine v. Yukon13 we read:

[42] There can be no question that the detention of an NCR accused persan in a prison is, on its face, contrary to the principles of Part XX.1 of the Code as articulated in Winko. An NCR accused person is not to be punished, but is to receive treatment for their mental illness under the least onerous and least restrictive disposition that balances the protection of the public with the needs of the accused. As the Yukon Review Board said (quoted in J. (D.), [2000] Y.J. No. 80, at para. 15): "Calling a prison a hospital does not change the nature of the facility from a penal environ ment to a therapeutic environment." There is ample evidence in this case, and commentary in the authorities referred to by the parties, of the deleterious effect of incarceration on mentally ill persans. I agree with the appellant and the cases cited that placing an NCR accused in a prison that is not capable of providing any therapeutic treatment services, without providing for such services to be obtained elsewhere, for reasons of administrative convenience of lack of funding, does not meet the requirements of Part XX.1 of the Code or the Charter.
86 Section 672.1 Cr. c. defines a hospital:

"hospital" means a place in a province that is designated by the Minister of Health for the province for the custody, treatment or assessment of an accused in respect of whom an assessment order, a disposition or a placement decision is made.
87 Section 2 Cr. c. defines a prison:

"prison" includes a penitentiary common jail, public or reformatory prison lock-up, guard-room or other place in which persans who are charged with or convicted of offences are usually kept in custody.
88 The fact that Pinel could be considered a prison14 is irrelevant to the first question at hand which is: is RDP a hospital under the wording of 672.54 c) Cr. c.? The second, is: could the Petitioner be legally held of Bordeaux, notwithstanding the RB decision stating that he must be detained at Pinel but placed at RDP15.

89 There is no doubt for this Court that the detention of the Petitioner in Bordeaux or RDP while waiting for a second fitness hearing constitutes a violation of section 7 of the Charter. Neither RDP nor Bordeaux are a "hospital" as defined by the Code. Also the authorities cannot change the conditions of an order without obtaining a new order, as was done on February 2015.

90 At the hearing, the Crown and the PG submitted that the order of February 2015 of the RB could be derived from the power found at section 672.68 Cr. c. which states:

672.68 (1) In this section and in sections 672.69 and 672. 7, Minister means the Minister of Public Safety and Emergency Preparedness or the Minister responsible for correctional services of the province to which a dual status offender may be sent pursuant to a sentence of imprisonment.
(2) On application by the Minister or of its own motion, where the Review Board is of the opinion that the place of custody of a dual status offender pursuant to a sentence or custodial disposition made by the court is inappropriate to meet the mental health needs of the offender or to safeguard the well-being of ether persans, the Review Board shall, after giving the offender and the Minister reasonable notice, decide whether to place the offender in custody in a hospital or in a prison.
(3) In making a placement decision, the Review Board shall take into consideration
(a) the need to protect the public from dangerous persons;
(b) the treatment needs of the offender and the availability of suitable treatment resources to address those needs;
(c) whether the offender would consent to or is a suitable candidate for treatment;
(d) any submissions made to the Review Board by the offender or any other party to the proceedings and any assessment report submitted in writing to the Review Board; and
(e) any other factors that the Review Board considers relevant.
(4)The Review Board shall make its placement decision as soon as practicable but not later than thirty days after receiving an application from, or giving notice to, the Minister under subsection (2), unless the Review Board and the Minister agree to a longer period not exceeding sixty days.
(5)Where the offender is detained in a prison pursuant to the placement decision of the Review Board, the Minister is responsible for the supervision and control of the offender.
91 Be that as it may, the Court notes th at section 672.68(2) provides that the RB must give the offender, and the Minister, reasonable notice as to whether or not the offender is to be placed in custody in a hospital or in a prison. No such notice seems to exist in this file. The Court cannot find one. The Petitioner, the Crown and the PG cannot identify one. The Court shall deem that it is inexistent.

92 Consequently, the legal requirements to be followed under 672.68 (2) were not met, if it was the proper legal foundation for the RB to issue such an order. It would then flow that such an order would be illegal.

93 Also, we can refer to sections 672.9 to 672.95 Cr. c. that deal with the enforcement of orders of the RB. Section 672.91 states:

672.91 A peace officer may arrest an accused without a warrant at any place in Canada if the peace officer has reasonable grounds to believe that the accused has contravened or wilfully failed to comply with the assessment order or disposition or any condition of it, or is about to do so.
94 It is section 672.92(1) Cr. c. that explains how an accused may be dealt with in such circumstances:

672.92 (1) If a peace officer arrests an accused under section 672.91 who is subject to a disposition made under paragraph 672.54(b) or an assessment order, the peace officer, as soon as practicable, may release the accused from custody and
(a) issue a summons or appearance notice compelling the accused's appearance before a justice; and
(b) deliver the accused to the place specified in the disposition or assessment order.
95 Again those sections refer to what should obviously be a valid, i.e. legal, disposition or assessment order.

96 But, it appears from the record that the original warrant was signed under section 672.47 to commit the Petitioner to Bordeaux on the 10th of September 2013. It bears noting that the Crown has always objected to having the accused brought back to Pinel or RDP for that matter, after September 2015, inasmuch as the latter would have been legal, on the premiss that the accused needed to have his competency determined and that since he was presumed to be competent in the escape file, a bail hearing was required and he had to be kept in jail.

97 Insofar as this position would make any legal sense, through a strict application of the Criminal Code, without any doubt it flies in the face of the principles enunciated in Winko where the Supreme Court clearly stated that such an accused should receive the least onerous and restrictive disposition possible under the circumstances.

98 Also, the authorities referred to above, namely Young and Germaine, require a plain reading of section 672.54 c), namely that the accused be "detained in custody in a hospital". Neither RDP nor Bordeaux are hospitals. That order is, on its face, illegal.

99 With ali due respect, the judicial system cannot put in abeyance the intent of the legislator, found in the Criminal Code, and the teachings of the Supreme Court on the subject, for what appears to be administrative reasons that, in this file, are not even properly documented.

100 For the Court, it thus appears th at, in the present set of facts, Petition er was not to be arrested in order to be put in jail, but more adequately in order that he be returned to Pinel and then have the RB decide what was appropriate in the circumstances.

101 But more importantly, the Court underlines that if the accused was ever found to be guilty of the accusation of having escaped from lawful custody, section 145(1) Cr. c. provides that he would be liable to imprisonment for a term not exceeding two years.

102 Moreover, as already stated as of today, if the accused pleaded guilty to all charges in both files, the Crown would ask for a sentence of time served plus a probation order of one year in the assault file and time served in the escape file.

103 However, the Petitioner has been detained in the escape file at RDP and Bordeaux for the last 4 years and 4 months. This situation is not only being tolerated, but as it appears, it was requested by the Crown. It appears to be the same in the assault file.

104 The Crown considers that the Petitioner is fit to stand trial on all counts. Consequently it flows, in its mind, that if he was to be convicted, he would be put in jail.

105 But the Petition er will have been in jail for a longer period of time then he wou if have been if he had been sentenced. This makes no sense.

106 It bears repeating that the Petitioner has requested to be allowed to be detained at VITA since September 2016 so that he can receive a proper treatment. The Crown has always objected.

107 Since September 2016, the Crown had the opportunity to have the Petitioner attend VITA, which would have been the equivalent of the one year of probation it would have requested, in the event the sentencing hearing would have taken place then, if the Petitioner had pleaded guilty. With all due respect, the Crown did not have the good sense to seize the occasion and, at least, have him received treatment while the ongoing procedural nightmare was unfolding. It is too late now. It cannot ask this Court to restrict the Petitioner's liberty any more.

108 This is an obvious abuse of process. It is shocking. Our system cannot tolerate that we treat a citizen like the Petitioner in a similar fashion. The Court cannot accept such a situation to perdure any longer.

109 This constitutes clear violations of section 7, 10 c) and 12 of the Charter. It is unnecessary to discuss the issue of a violation of section 11 b).

110 In Mission Institution v. Khela,16 the Supreme Court declares that a writ of habeas corpus issues as of right if the applicant proves a deprivation of liberty and raises a legitimate ground upon which to question the legality of the deprivation17. This is a recognition of the underlying goal of the habeas corpus: no one should be deprived of their liberty without lawful authority18.

111 It bears noting that the Court retains a residual discretion wh en it must decide whether or not it will discharge the applicant19.

112 In R. v. Demers,20 the Supreme Court discussed the conditions under which a stay of proceeding can be issued:

[63] ... As recently stated by LeBel J. in Regan, [2002] 1 S.C.R. 297, supra, at para. 54, citing R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 75, a stay of proceedings is a "drastic" remedy, and is therefore reserved for the cases where a very high thresh-old is met:
... a stay of proceedings will only be appropriate when two criteria are met:
(1)the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(2)no other remedy is reasonably capable of removing that prejudice.
[64] Thus, a stay should be granted to permanently unfit accused who do not poses significant threat to the safety of the public, in order to prevent their indefinite subjection to criminal proceedings. In deciding whether or not to grant a stay, courts will have to consider such factors as the nature of the accusation, the time since the offence, later conduct, initial and current medical evaluations, whether the accused is taking medication required to eliminate the risk, as weil as ali other relevant information and circumstances of the accused. Also, as mentioned by this Court in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 92, it will also be appropriate at this stage "to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits". This balancing recognizes that the administration of justice is best served by staying the proceedings where the affront to fairness and decency is disproportionate to the societal interest in the subjection of the accused to criminal proceedings: R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667.
113 Under section 24(1) of the Charter, the Court can forge the appropriate remedy. It must be suited to the violation in regards to the circumstances of the case.

114 R. v. Taillefer21 addresses that specifie question in circumstances that are somewhat similar to the case at hand, namely in regards to an accused having already been detained in jail and having served the time for which he was to be eventually sentenced. We read:

[129] This Court has repeatedly held that there is not necessarily an abuse of process in a case in which bad faith or malice on the part of the State can be shawn (Conway, at p. 1668; Keyowski, [1988] 1 S.C.R. 657, supra, at p. 659). In cases involving multiple trials, the courts have held that the fact that an accused has already served a significant portion of his or her sentence is a relevant factor in determining whether an order for a new trial would be an abuse. At issue in Keyowski, was whether a series of trials could per se constitute an abuse of process or whether it is necessary for the accused to show prosecutorial misconduct. More precisely, this Court had to decide whether the appellant should stand trial a third time on a charge of criminal negligence causing death. The trial judge had stayed the proceeding on the ground that ordering a third trial would be abusive and contrary to s. 7 of the Charter. The Court of Appeal and ordered a third trial, on the ground that it was not "one of those 'clearest of cases' which would justify a stay" (pp. 659-60). One of the reasons stated by this Court was the fact that the appellant had not been held in detention, thus tacitly acknowledging that a long period of detention is a relevant factor in determining whether an order directing a new trial would result in an abuse of process.
[130] In R. v. Jack (1996), 113 Man. R. (2d) 260, the Manitoba Court of Appeal had to determine whether ordering a fourth trial on a manslaughter charge constituted an abuse of process that justified staying the trial. At his third trial, the accused had been found guilty by the jury and sentenced to four years in penitentiary. The Court of Appeal dismissed the appeal, but decided that having regard to ali the circumstances, including the fact that the accused had already been detained for fourteen months before his first trial, an order for a new atrial would have constituted an abuse of process. This Court granted the appeal and ordered a stay of proceedings (R. v. Jack, [1997] 2 S.C.R. 334).
[131] In R. v. Datey, [1999] Q.J. No. 1567 (QL), the Quebec Court of Appeal ordered a stay of proceedings because of the fact that the accused had already served the term he had been sentenced to at his trial. The court held (at para. 8):
It would therefore be contrary to the appellant's fundamental rights, inter alia the right to protection under s. 7 of the Canadian Charter of Rights and Freedoms and to the guarantee in s. 12, to impose the burden of a new trial on him, with the risk of a conviction. In this context, in order to respect the guarantees of fundamental fairness in the criminal process, the Court is of the opinion that a stay of proceedings on the charges laid must be granted. In this context, the appeal as to sentence is moot.
[132] More recently, in R. v. Hunter (2001), 155 C.C.C. (3d) 225, at para. 29, the Ontario Court of Appeal held that ordering a fifth trial for using a firearm in the commission of an offence, aggravated assault and possession of a prohibited weapon would be an abuse of process contrary to s. 7 of the Charter. The court therefore ordered a stay of proceedings. The relevant factors in determining whether a new trial should be ordered or a stay of proceedings directed under s. 24(1) of the Charter included the fact, stressed by the court, that the appellant had spent about seven months in preventive detention in addition to serving over three and a half years of his sentence. (See also R. v. Mitchelson (1992), 78 Man. R. (2d) 134 (C.A.); R. v. P. (G.) (1998), 128 C.C.C. (3d) 159 (Ont. C.A.), at para. 2; R. v. L. (R.D.) (1997), 60 Alta. L.R. (3d) 364 (Q.B.), at para. 241; R. v. Sophonow, [1985] M.J. No. 9 (QL) (C.A.), at para. 6; R. v. Sophonow (No 2) (1986), 25 C.C.C. (3d) 415 (Man. C.A.), at p. 461.)
[133] Having regard to the fact that the appellant Duguay has in fact already been incarcerated for at least eight years, I find that a stay or proceedings is necessary to prevent what would be the perpetuation of an injustice. There is no other remedy that would cure the prejudice suffered by the appellant Duguay, on the particular facts of his case.
115 Here, without a doubt, a stay of proceeding for both files appears to be in order. The circumstances of the present matter are utterly damning. It shocks the conscience of the Court firstly, that an individual be kept in prison for a period of more than four years, when he is supposed to be kept in a hospital or a detention center where he will be able to receive the adequate supervision required by his condition and, secondly, for a period of time that exceeds the sentence he would receive should he ultimately be condemned.

116 The fact that the Crown considers the Petitioner to be a dangerous individual cannot refrain the Court from ordering the appropriate remedy which, in the circumstance, is that he be freed immediately.

WHEREFORE, THE COURT:

117 GRANTS in part the Petitioner's motion;

118 DECLARES that the detention of the Petitioner constitutes a violation of his rights under sections 7, 10 c) and 12 of the Charter;

119 ORDERS, as a remedy under section 24(1) of the Charter, that proceeding in files 500-01-046206-105 and 500-01-091966-132 be stayed;

120 ISSUES, as a remedy under section 24(1) of the Charter, a writ of habeas corpus;

121 ORDERS that Roger Lee Desmarais be released from custody immediately.

THE HONOURABLE MARC-ANDRÉ BLANCHARD J.S.C.

En résumé
Si un jugement d’inaptitude est rendu, l’accusé est confié aux soins de la commission d’examen. Ce sont eux qui ensuite doivent voir au traitement nécessaire pour l’accusé. Et aussi décider si celui-ci doit rester détenu ou non. Doit-il être détenu dans un hôpital comme Pinel, par exemple? Ou peut-il retourner vivre dans sa maison, selon certaines conditions de remise en liberté? Mais il n’est plus détenu dans une prison, ça c’est clair.

Un verdict d’inaptitude ne met pas fin au dossier. Une évaluation doit être faite aux 2 ans, sur l’aptitude de l’accusé. Éventuellement, s’il apparait clair que l’accusé ne sera jamais apte, un procureur peut décider de retirer les accusations. Si l’accusé redevient apte, selon le temps écoulé depuis le dépôt des accusations, un procureur peut aussi décider d’arrêter les procédures, s’il considère que ce n’est plus opportun. Sinon, le dossier reprend son cour.

Je vous résume le tout rapidement, mais dans l’essentiel, c’est ça.

Non-responsabilité vs inaptitude
La non-responsabilité = au moment du crime. Est-ce que la personne pouvait distinguer le bien et du mal au moment du crime? Inaptitude : au moment du procès. Est-ce que la personne est capable de subir son procès, de le comprendre. Par ailleurs, la personne qui est inapte peut redevenir apte (par exemple, elle fait une psychose et revient éventuellement). La personne peut également être inapte en plus d'être non-responsable criminellement pour le crime commis. Une fois le verdict rendu, la Cour du Québec perd juridiction (à part pour les accusés à haut risque, une possibilité nouvelle de quelques années) et l'accusé devient sous la responsabilité du Tribunal administratif du Québec (TAQ). La Cour du Québec peut garder la personne détenue au moment de déclarer la personne non-responsable ou inapte (par exemple, cas de crime grave tel un meurtre), elle peut aussi le libérer sous conditions. La personne sera détenue dans des institutions spécialisés tel que Pinel. La personnes sera suivie par un médecin et repassera devant le TAQ (banc de 3 juges administratifs) régulièrement. Bref, une personne inapte et/ou non responsable criminellement est suivie et dans la majorité des cas, le public est protégé. C'est un mécanisme qui fonctionne plutôt bien, mais méconnu et il faut se rappeler que nous devons se contenter de solutions imparfaites.