No. 500-36-005445-104 (Stay of Proceedings)Page 1

No. 500-36-005445-104 (Stay of proceedings)Page 1

SUPERIOR COURT
CRIMINAL DIVISION
CANADA
PROVINCE OF QUÉBEC
DISTRICT OF MONTRÉAL
No. / 500-36-005445-104
(500-01-020150-097)
DATE: / May 31, 2011
______
PRESENT: THE HONOURABLE JAMES L. BRUNTON J.S.C.
______
GUY AUCLAIR ET AL.[1]
Petitioners
v.
HER MAJESTY THE QUEEN
Respondent
______
JUDGMENT
(stay of proceedings – quashing of the direct indictment)
publication of the shaded sections is prohibited
______

A.INTRODUCTION

[1]In this case, did the Director of Criminal and Penal Prosecutions (the “Director” or the “D.C.P.P.”) fail in his duty to see that all those charged were treated fairly? Did the decision to file a direct indictment (“D.I.”) encompassing a number of charges against a great many accused result in an abusive prosecution? Can and must the Court intervene to review some of the Director’s discretionary decisions? Those are a few of the questions raised in this motion.

[2]The petitioners are part of a group of 155 people (a 156th died after the case began) named in a D.I. filed on October 8, 2009 in record 500-01-020150-097. The respondent alleges that they are all members or associates of the Hells Angels (“H.A.”).

[3]The D.I. contains 29 charges, including, in particular, conspiracy to murder, murder, conspiracy to traffic narcotics and/or controlled substances, trafficking of narcotics and/or controlled substances and commission of an indictable offence for the benefit of, at the direction of, or in association with a criminal organization.[2]

[4]The evidence in support of the charges covers the period from May 1992 to April 15, 2009. The respondent intends to show at the petitioners’ trial that all the H.A. in Québec form a single criminal organization whose members engage in the trafficking of narcotics and/or controlled substances and that they committed murders in order to facilitate that traffic.

[5]The petitioners filed this motion seeking either a stay of the proceedings for abusive prosecution, or the quashing of the D.I. They advance a series of grounds for the remedies sought. The main grounds can be grouped under the following headings:

• Abuse of process;
• The impossibility for the accused to defend themselves;
• Illegality;
• Unreasonable delays which have been attained or are anticipated.

In general terms, they argue that the scope of the case means that it is impossible for them to defend themselves. They contend, as a corollary, that it is impossible for them to have a fair trial in such circumstances.

[6]The Court will examine each of the elements advanced by the petitioners that refer to one of the subgroups described in the preceding paragraph. Firstly, the analysis will determine whether, individually or collectively, these elements establish that the prosecution is abusive. In the affirmative, the Court will determine whether the permanent stay of the proceedings – a remedy reserved for the most serious or most obvious cases – must be ordered.

[7]Secondly, regardless of the result of this analysis, the Court will examine whether the D.I. should be quashed for illegality. Lastly, the Court will decide whether a stay of proceedings should be ordered because of unreasonable current or anticipated delays.

[8]The Court will begin its analysis by severing the D.I. into groups that will result in a corresponding number of trials. The Court does this for three reasons.

[9]Firstly, it is clear to the parties and the Court that a single trial involving the 155 petitioners on the 29 counts is impossible. Without even having to refer to legal concepts, there is no courtroom or judicial centre in the province of Québec that is large enough to accommodate such a trial.

[10]Secondly, many of the elements advanced by the petitioners cannot be analyzed in the abstract. For example, the petitioners argue that the number of verdicts that a jury would have to render is one element amongst others that would make its work so complex that any trial would be destined to fail. To determine whether that argument has merit, one must know the number of accused and the number of counts before the jury. As another example, the petitioners advance the unreasonable anticipated delays. It would certainly be relevant at the time that this issue is analyzed to know, for instance, that the Court severed the indictment into 20 groups and that a petitioner who was part of the first group would be tried earlier than a petitioner in the twentieth group.

[11]Thirdly, in the analysis that the Court has to undertake to determine whether a stay of proceedings must be ordered, assuming that abusive conduct is established, is the duty to examine whether one or more alternative remedies could reasonably eliminate the prejudice caused by that reality. It is clear that one of the alternative remedies that the Court would have to consider is the severance of the indictment. Immediate severance makes it possible to analyze the parties’ positions, not in the abstract, but concretely.

B.SEVERANCE OF THE D.I.

a)Counts

[12]There are 29 counts in the D.I.

Count 1 / Conspiracy to murder / July 1, 1994 to July 11, 2002
Count 2 / Conspiracy to traffic (Narcotic Control Act) / May 2, 1992 to May 13, 1997
Count 3 / Trafficking (Narcotic Control Act) / May 2, 1992 to May 13, 1997
Count 4 / Conspiracy to traffic (Controlled Drugs and Substances Act) / May 14, 1997 to April 15, 2009
Count 5 / Trafficking (Controlled Drugs and Substances Act) / May 14, 1997 to April 15, 2009
Count 6 / Participation in the activities of a gang (Trafficking – Controlled Drugs and Substances Act) / May 14, 1997 to January 6, 2002
Count 7 / Indictable offence for the benefit of a criminal organization (Trafficking – Controlled Drugs and Substances Act) / January 7, 2002 to April 15, 2009
Counts 8 to 29 inclusively /

• 22 first degree murders in chronological order
• first (count 8)
• last (count 29)

/

• October 18, 1996
• August 21, 2001

[13]The period covered by count 1 refers to the alleged duration of the Bikers’ War. The conspiracy described in count 2 ended at the time of the repeal of the Narcotic Control Act. The date of April 15, 2009, found in certain counts, refers to the date when the petitioners’ arrests began. Counts 6 and 7 are explained by an amendment to the Criminal Code that came into force on January 7, 2002. Lastly, the murders alleged in counts 8 to 29 are considered by the respondent as overt acts of the conspiracy to murder, described in count 1.

b)Accused

[14]The respondent alleges that all the accused named in the D.I. are members or associates of the H.A. in the province of Québec. Of the 156 accused named, one died of natural causes after his arrest and 19 have not yet been arrested. When the Court has to refer to those 19 accused, it will use the term “absent”.

[15]There are 31 accused (“the group of 31”)[3] who are not accused of either conspiracy to murder or one of the 22 murders. There are 9 accused[4] (“the group of 9”) who are accused of conspiracy to murder and of at least one count among counts 2 to 7 inclusively. However, they are not accused of a count of murder.

[16]There are 115 accused who are charged with conspiracy to murder, at least one murder and at least one count among counts 2 to 7 inclusively. Most of them are accused of all 29 counts.

[17]...[5] As for the rest, i.e. a total of 90 accused, the respondent has recourse to its general theory in order to establish their individual criminal responsibility for one or more murders.[6]

[18]Not counting the group of 31, the rest of the 124 accused are distributed or associated in the following manner in the five existing chapters of the H.A.:

• Sherbrooke-36 (5 absent; . . .);[7]
• Québec-23 (1 absent; . . .);[8]
• South-22 (6 absent; . . .);[9]
• Trois-Rivières-28 (4 absent; . . .);[10]
• Montréal-15 (1 absent; . . .).[11]

c)Severance of the counts

i.Positions of the parties

[19]Firstly, the petitioners take the position that severance by counts or accused in the D.I., regardless of the form it would take, is not an adequate remedy for the abuse that will be proven. That said, the petitioners argued that the presence of counts 2 to 7, inclusively, in the D.I. violated section 589 of the Criminal Code.

589. No count that charges an indictable offence other than murder shall be joined in an indictment to a count that charges murder unless:

(a) the count that charges the offence other than murder arises out of the same transaction as a count that charges murder; or

(b) the accused signifies consent to the joinder of the counts.

[20]The respondent argued that, on the contrary, counts 2 to 7 in the D.I. do not violate section 589 of the Criminal Code. A document (R-54) that the Court requested in order to know the Director’s position on the question of the severance of the indictment contains the following:

[TRANSLATION]

The trafficking of drugs (narcotics and/or controlled substances) is the motive for the murders and therefore highly relevant evidence concerning the counts of murder and/or conspiracy to murder, whereas the counts of the criminal organization offence demonstrate the hierarchy and the daily activities of the members of the organization controlled by the Hells Angels, confirming the prosecution’s theory.

[21]In a document filed during arguments (IP-2), the respondent further explained its position regarding section 589 of the Criminal Code. It affirmed that, since 1992, all of the H.A. continually conspired in drug matters. The two counts of conspiracy and two counts of trafficking covering the period from 1992 to 2009 are solely due to statutory changes:

[TRANSLATION]

If that change in the law had not occurred, they would all be accused of having conspired to traffic and having trafficked drugs between 1992 and 2009.

Hence, it is the same criminal transaction involving drugs that continued from 1992 to 2009. The murders occurred in the framework of the drug trafficking covered by two laws.

So that was our reasoning in studying section 589 of the Criminal Code and it led us to conclude that all the counts arise out of the same transaction.[12]

[Emphasis in original.]

ii.Analysis

[22]With respect, the Court believes that the respondent is wrong. Prior to 1991, the prosecution could not include a count, other than a count of murder, in an indictment that already contained a count of murder. Since then, section 589 of the Criminal Code has been amended to allow a count targeting a criminal offence other than murder if the count “... arise[s] out of the same transaction” or if the accused consents thereto. During the second reading of the bill, the parliamentary secretary of the Minister of Justice said the following:

The unfortunate fact remains, however, that there are a significant number of cases of murder each year in which a victim is stabbed or shot or beaten to death during the course of the commission of another serious crime such as sexual assault, robbery or break and enter... The amendment to section 589 will provide that all offences arising out of the same incident may be tried together. As a result, the fact finding process will be much improved and justice will be better served since the possibility of delays will be greatly diminished.

[23]In the press release issued at the time the amendment came into force, it was stated:

The new law (Bill C-54) does away with the current practice of having a separate trial for persons accused of murder and other offences committed at the same time as murder. Under the new legislation, charges for other indictable offences, such as robbery and sexual assault, would be dealt with at the same trial.

[24]In R. v. Riley, 229 C.C.C. (3d) 266, the prosecution alleged that the accused was part of a criminal organization and had taken part in a shoot-out in which one innocent bystander had been killed and another injured. He was accused, in particular, of one count of murder, one count of attempted murder, one count of having committed the murder and attempted murder for the benefit of a criminal organization and one count of having participated in the activities of a criminal organization. The latter count specified the dates of March 3, 2004 to October 1, 2004. The murder and attempted murder had taken place on March 3, 2004.

[25]After reviewing the jurisprudence analyzing the phrase: “arise out of the same transaction” in section 589 of the Criminal Code, the Court noted that:

... The amendment preserves the principle that in a murder case, the attention of the jury ought not to be diverted by an inquiry into a wholly different offence. But it permits a degree of diversion where the facts underlying the other offence are substantially the same.[13] ...

[26]The Court decided that the count of attempted murder and the count of having committed murder and attempted murder for the benefit of a criminal organization arose out of the same transaction. However, the count of participating in the activities of a criminal organization did not withstand section 589 of the Criminal Code:

... Permitting joinder of a murder count with a count alleging participation in the activities of a criminal organization for a seven month period after the murder risks diverting the attention of the jury into an inquiry into wholly different crimes that is entirely antithetical to the rationale for the limited relaxation of the anti-joinder rule in s. 589.[14]

[27]In this case, some of the counts cover a period beginning four years before the first murder (see counts 2, 3 and 6 in relation to count 8) and ending seven years after the last murder (see counts 4, 5 and 7 in relation to count 29). This Court is of the opinion that counts 2 to 7 inclusively do not arise out of one or more of the counts of murder.

[28]In reaching that decision, the Court is aware, given the motive invoked by the respondent, that it is inevitable that evidence demonstrating the participation of an accused or the H.A. organization in drug trafficking will be adduced during the trial on the murder counts.

[29]However, evidence of a motive cannot be compared with the quantity of evidence required to prove the vast conspiracies alleged. One of the benefits of section 589 of the Criminal Code is that it ensures the evidence of a motive that can be associated with the commission of other crimes does not become invasive. Evidence of motive should remain in the background and should not distract the trier of fact in analyzing one or more of the counts of murder.

[30]If the Court errs in its interpretation of section 589 of the Criminal Code, it will still order the severance of counts to 2 to 7 inclusively. Pursuant to section 591(3), the Court believes it would be in the interests of justice to sever the counts. The interests involved are as follows:

The possibility of managing the quantity of evidence admitted in order to prove the motive and, accordingly, manage the prejudice caused a petitioner, as opposed to the probative force of that evidence. If counts 2 to 7 were present, the Court could not intervene to limit the motive-conspiracy evidence;[15]

The possibility of considerably reducing the length of the trials for, first, the counts of murder, then for counts 2 to 7 inclusively.

[31]These concerns have been noted by the Supreme Court in R. v. Handy [2002] 2 S.C.R. 908. Although reference is particularly made to evidence of similar acts in that case, the Court’s general considerations, when confronted with a long and prejudicial proof of propensity, remain apropos in this case:

37The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. ...

[32]So how should the accused be divided up? In Exhibit R-54, the respondent argued that petitioners from each of the H.A. chapters should be included in each trial. ... In argument, the respondent added that the identity of the petitioners to be tried first will be determined by those who declare themselves ready.

[33]Lastly, the respondent argued – and it is supported by the petitioners on this point – that under section 591 of the Criminal Code, the Court could, at best, create one group to be tried. The other petitioners should be referred pro forma to the next opening on the assizes, since the undersigned would no longer have jurisdiction in their case, as no longer being the trial judge. With respect, the Court does not share that opinion.

[34]The Court is currently sitting as the judge designated to preside over the trial of the 155 accused on the 29 charges. To manage this case, it must be divided up. Nothing in section 591 of the Criminal Code supports the position taken by the parties. On the contrary, the Court is of the opinion that that section allows complete management of the indictment. Thus, the section allows the Court to completely plan and manage its agenda.

591.(3) The court may, where it is satisfied that the interests of justice so require, order:

(a) that the accused or defendant be tried separately on one or more of the counts; and

(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts.

[. . .]

(6) Where an order is made in respect of an accused or defendant under paragraph (3)(b), the accused or defendant may be tried separately on the counts in relation to which the order was made as if they were contained in a separate indictment.

[35]Considering that the undersigned is acting as trial judge for the D.I.; considering that it is obvious that the D.I. must be servered in order that the petitioners can be tried; considering that complete severance of the D.I. is required in order to adequately analyze the various grounds advanced by the petitioners in their motion seeking a stay of the proceedings; considering that nothing in section 591 of the Criminal Code or the jurisprudence (see R. v. Litchfield [1993] 4 S.C.R. 333) prevents the complete management of an indictment by the trial judge; considering that the Court will reserve the right of the petitioners in each group to file motions for additional severance of the counts or accused, and will reserve the respondent’s right to file a motion to join to another group an absent petitioner who is arrested; the Court is of the opinion that it has the power and the obligation to consider the D.I. in its entirety.

[36]The Court is of the opinion that the petitioners, with the exception of the group of 31, should be divided up according to their membership in one of the five H.A. chapters in the province.[16] The division according to their membership in a chapter is preferable to the suggestion made by the respondent which could lead to speculation that the grouping of the accused was based on oblique or arbitrary reasons. Moreover, by proceeding by chapter, there is a possibility that the evidence and certain legal issues raised by the petitioners would be better managed. For example, evidence of motive – that is, narcotics trafficking – could focus particularly on the chapter and its members.