R. v. Rahey

R. v. Rahey
Collection
Supreme Court Judgments
Date
1987-05-14
Report
[1987] 1 SCR 588
Case number
18906
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Nova Scotia
Subjects
Constitutional law
Notes
SCC Case Information: 18906
Decision Content
R. v. Rahey, [1987] 1 S.C.R. 588
Carl R. Rahey Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. rahey
File No.: 18906.
1986: June 17; 1987: May 14.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ.
*Chouinard J. took no part in the judgment.
on appeal from the nova scotia supreme court, appeal division
Constitutional law ‑‑ Charter of Rights ‑‑ Court of competent jurisdiction ‑‑ Accused alleging a violation of his Charter right to be tried within reasonable time ‑‑ Whether the superior court of a province a court of competent jurisdiction for the purposes of an originating application under s. 24(1) of the Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 11 (b), 24(1) .
Constitutional law ‑‑ Charter of Rights ‑‑ Trial within a reasonable time ‑‑ Trial judge taking eleven months to decide a motion for a directed verdict ‑‑ Whether accused's right to be tried within reasonable time infringed ‑‑ Appropriate remedy for an infringement of s. 11 (b) ‑‑ Canadian Charter of Rights and Freedoms, ss. 11 (b), 24(1) .
Following an investigation by the Minister of National Revenue, appellant was charged in September 1981 with six counts of making false returns and one count of wilful evasion pursuant to s. 239(1) of the Income Tax Act, and all his property and assets and those of his associated companies were put into receivership. His trial before a provincial court judge began six months later. The Crown closed its case in November 1982 and, after an adjournment, the defence made a motion for a directed verdict on December 13, 1982. There were then, over a period of eleven months, nineteen adjournments initiated by the trial judge. For nine of those months, appellant raised no objection to the delay. But on September 13, 1983, he wrote to the Crown requesting that it seek a decision from the judge. When the judge ordered further adjournments, he wrote again to the Crown on several occasions alleging a violation of his constitutional rights and demanding the withdrawal of the charges. The requests were refused. Instead, the Crown filed a motion for mandamus. On November 14, 1983, one day prior to the trial judge's decision dismissing the motion for a directed verdict, appellant made an application pursuant to s. 24(1) of the Charter to the Supreme Court of Nova Scotia for an order dismissing the charges. The application was based on an alleged violation of s. 11 (b) of the Charter . The Court granted the application. The superior court judge held that the trial judge's delay had seriously prejudiced the appellant by impairing his ability to conduct his defence and to carry on business while under a continuing receivership and concluded that the only appropriate remedy was to dismiss the charges. On appeal, the Court of Appeal set aside the dismissal and directed that the trial proceed. The Court found that the evidence of prejudice was insubstantial and entirely speculative. This appeal is to determine (1) whether the Supreme Court of Nova Scotia was a court of competent jurisdiction for the purposes of an application under s. 24(1) of the Charter ; (2) whether appellant's right to be tried under a reasonable time was infringed; and, if so, (3) whether the superior court judge properly exercised her jurisdiction in dismissing the charges because of the unreasonable delay of the trial judge.
Held: The appeal should be allowed and a stay of proceedings ordered.
(1) Where the trial judge is alleged to be the cause of the violation of the accused's rights under s. 11 (b), the superior court is a court of competent jurisdiction for the purposes of an application under s. 24(1) of the Charter .
(2)‑‑Section 11 (b) of the Charter covers delays during the trial for which the judge is responsible.
‑‑In assessing the reasonableness of a delay under s. 11 (b), the court may consider the prejudice to the accused including (per Beetz, Estey, McIntyre, Wilson, Le Dain and La Forest JJ.) prejudice to his ability to make full answer and defence and (per Estey, McIntyre, Wilson and La Forest JJ.) the civil consequences of the criminal proceedings.
‑‑The accused's consent to the trial judge's adjournment did not constitute a waiver of delay.
‑‑The eleven‑month delay constituted, in the circumstances of this case, an infringement of the accused's right to be tried within a reasonable time.
(3)‑‑A stay is in this case the remedy.
‑‑(Per Dickson C.J. and Beetz, Estey, Lamer, Wilson and Le Dain JJ.) A stay of proceedings is the minimum remedy for an infringement of s. 11 (b) because (per Dickson C.J. and Estey, Lamer and Wilson JJ.) the court has lost jurisdiction to proceed.
‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑
Per Dickson C.J. and Lamer J.: Generally, the court of competent jurisdiction for the purposes of an application under s. 24(1) of the Charter in an extant case is the trial court. While the superior court has concurrent original jurisdiction to hear such an application, it should usually decline to exercise its jurisdiction unless the trial court is an inappropriate forum to seek a remedy because, for example, it is itself allegedly in violation of the Charter 's guarantees. The burden is upon the claimant to establish that the application is an appropriate one for the superior court's consideration. In the case at bar, since it is the presiding judge who is alleged to be the cause of a violation of the appellant's rights under s. 11 (b), the Nova Scotia Supreme Court was right to exercise its jurisdiction to hear the s. 24 application.
Section 11 (b) of the Charter gives an accused the right to be tried within a reasonable time. The fundamental purpose of that section is to protect the rights set forth in s. 7 . The liberty of the accused may be impaired by pretrial detention or bail conditions. The concept of security of the person in s. 7 is not restricted, in the context of s. 11 (b), to physical integrity; rather, it encompasses protection against overlong subjection to the vexations and vicissitudes of a pending criminal accusation. The purpose of s. 11 (b) is to limit the impact of various forms of prejudice to the accused by circumscribing the time period within which they may occur. Impairment of the accused's defence is not a factor to be considered under s. 11 (b). The accused's right to mount a full and fair defence is more properly related to the right to a fair trial protected by s. 11 (d) of the Charter .
To determine whether an accused's right under s. 11 (b) has been infringed, the court should adopt a reasonableness test which involves a balancing of the inherent impairment of the accused's interest as of the moment he is charged from the very fact of being prosecuted, such impairment becoming increasingly pronounced with the passage of time, against three other factors: (1) waiver of time periods; (2) the time requirements inherent in the nature of the case and (3) the limitations to institutional resources. Actual impairment of an accused's security interest need not be proven to render s. 11 (b) operative. A subjective approach would place a near impossible burden of proof on the accused and might lead to an unacceptable degree of inequality of treatment. In assessing the reasonableness of a delay, a court may presume that the accused will have suffered an impairment to his security interest.
The time frame to be considered in computing trial within a reasonable time starts at the moment a person is charged but does not end at the moment the trial begins. It must continue until the end of the matter. Indeed, the stigma of being an accused does not end when the person is brought to trial but rather when the trial is at an end and a decision is rendered.
In the case at bar, while the charges against the accused were complicated, the eleven‑month period of inaction on the part of the trial judge to decide a motion on a directed verdict, when inserted into the overall period of time, was unreasonable and unjustified.
Appellant's consent to the several adjournments requested by the trial judge cannot be weighed against him. Generally, a delay consented to by an accused should be excluded from consideration when assessing reasonableness, if such waiver is clear, unequivocal and informed. However, acquiescence to a delay requested by a judge in whose hands the fate of a motion for a directed verdict lies must be assessed differently than those delays in proceedings that are made at the Crown's request. An accused will usually consent to a short delay when the judge is deliberating on a motion for a directed verdict. That judge is in a position of authority and the accused would be well advised by counsel to extend to the judge every courtesy. Such behaviour is not a waiver for the eleven‑month delay.
Where, on balancing the various factors, a court decides that the accused's right to be tried within a reasonable time has been contravened, a stay of proceedings will be the appropriate remedy. Such remedy is a minimum to which others may be added.
Per Estey and Wilson JJ.: The superior court judge had jurisdiction to hear the s. 24(1) application and properly exercised her discretion in deciding to do so in the circumstances of this case.
Where, as in a case like this one, an accused's right to be tried within a reasonable time has been infringed, the only appropriate remedy available under s. 24(1) of the Charter is a stay of proceedings. A finding that s. 11 (b) has been infringed goes to the jurisdiction of the court to put the accused on trial or to continue with the charges against him. Thus, a court cannot find a violation of s. 11 (b) and still press the accused on to trial. Section 24(1) is a provision of general application which may be invoked by anyone whose rights under any of the rights sections of the Charter have been violated and is necessarily expressed so as to confer on a court of competent jurisdiction a broad discretion as to remedies. But this does not mean that all remedies are available for the violation of all rights. The remedy or remedies must be tailored to the particular right which has been violated.
In assessing whether or not the delay was reasonable in disposing of the charges against an accused, prejudice to the accused resulting from the delay is very relevant. If the delay has prejudiced the accused in his ability to make full answer and defence to the charges, this factor should be considered in determining the reasonableness of the delay notwithstanding that the accused's right to a fair trial is protected by s. 11 (d). The prejudice relevant under s. 11 (b) is the prejudice arising from the delay in processing or disposing of the charges against an accused and not the prejudice arising from the fact that he has been charged.
There was evidence before the court on which the superior court judge could properly have found an impairment of the appellant's liberty and security interests arising specifically from the delay in disposing of the charges against him. Viva voce testimony played a fairly central role in this case and it was open to the judge to infer that the passage of time would affect the witnesses' memories, particularly in this case where the events are routine book‑keeping transactions which occurred ten years earlier. The appellant's liberty and security interests were also impaired by the receivership. The appellant succeeded in establishing a direct causal link between the delay in the criminal proceedings and the ongoing receivership. He was completely disabled from carrying on his business during this period. There is no reason why the civil impact of criminal proceedings cannot constitute prejudice to an accused resulting from delay under s. 11 (b).
Finally, it is obvious that in this case the defence was inhibited in filing for mandamus and, in general, was in a very delicate position when it comes to complaining about the conduct of the trial. Accordingly, waiver should not be deemed to have occurred where counsel has consented to a judge‑generated adjournment and no such waiver should therefore be deemed to have occurred in this case.
Per Beetz and Le Dain JJ.: The Supreme Court of Nova Scotia was in this case a court of competent jurisdiction within the meaning of s. 24(1) of the Charter and the appellant did not waive the right, guaranteed by s. 11 (b) of the Charter , to be tried within a reasonable time.
The factors to be considered and weighed in determining whether there has been an infringement of the right to be tried within a reasonable time are: (a) whether the delay complained of is prima facie unreasonable, having regard to the inherent time requirements of the particular case; (b) the reasons or responsibility for the delay, having regard to the conduct of the prosecution and the accused, including the question of failure to object or waiver, as well as the conduct of the court and any responsibility which may be reasonably assigned to the unacceptable inadequacy of institutional resources; and (c) the prejudice caused to the accused by a particular delay.
With respect to prejudice, the prejudice caused by delay to an accused's right to a fair trial, and in particular to his right to full answer and defence, is a relevant consideration in determining whether there has been an infringement of the right to be tried within a reasonable time. Although it is not essential to such a determination it is a factor which, if established, is entitled to particular weight. Where the issues in a case may turn to some significant extent on testimony such prejudice may be inferred from the elapse of an unreasonable period of time. In the present case, such prejudice was sufficiently established to be a relevant factor in the determination whether there had been an infringement of the right to be tried within a reasonable time.
However, the effect of the delay in this case on the appellant's business, because of the possible relationship between the criminal law process and the receivership, is not a factor or circumstance to be taken into account and given particular weight in weighing the prejudice caused by the delay. The assessment of the prejudice caused to the security interests of an accused should not take the particular circumstances of an accused into consideration. That would open the door to a differential application, based on personal circumstances, of the right guaranteed by s. 11 (b) of the Charter . A general weight must be given to the prejudice caused to the security interests of an accused by a particular delay, whether it is presumed or inferred.
Finally, a stay of proceedings is the appropriate and just remedy for an infringement of the right to be tried within a reasonable time. It is not necessary, in support of this conclusion, to characterize such an infringement as going to the jurisdiction to try an accused, although such a characterization may well be justified for other purposes. It is sufficient that a remedy compelling the trial of an accused beyond a reasonable time, such as an order to expedite proceedings, cannot be regarded as appropriate and just.
Per McIntyre and La Forest JJ.: There must be at all times a court of competent jurisdiction to which resort can be had to determine whether an accused's constitutional right to be tried within a reasonable time has been infringed. While the trial court will ordinarily be the appropriate court to deal with this issue, where such a court is not yet seized with the proceedings, or where it is unable to provide an effective remedy, the superior court of the province may exercise jurisdiction. The superior court judge should ordinarily confine his jurisdiction to remedying existing delays, and not attempt to remedy past delays. In exceptional cases, however, the nature of a delay will be such as to call for an end of the proceedings. In the present case, the trial judge was entirely responsible for the alleged breach of appellant's constitutional right. His capacity to consider what remedy was appropriate and just in the circumstances was obviously impaired. Notwithstanding the fact that the delay was no longer ongoing, the superior court judge properly exercised her jurisdiction to grant a remedy under s. 24(1) . The accused's failure to seek either mandamus or a Charter remedy at an earlier stage did not make it improper for the superior court judge to exercise her discretion to offer relief under that section.
The protection offered by s. 11 (b) of the Charter is not limited to a right to be brought to trial within a reasonable time but extends to the trial itself and ensures that a decision is rendered promptly. The question of delay is thus open to assessment at all stages of a criminal proceeding, from the laying of a charge to the rendering of judgment at trial. However, the impairment of an accused's interests relevant to consideration under s. 11 (b) is the impairment that flows from the delay in the prosecution of the charge and not the impairment that may flow from the charge itself. A court, in analyzing any s. 11 (b) claim, must overlook the lapse of time inherent in the case, together with any resulting inconvenience to the accused.
The right to trial within a reasonable time is an ancient right, whose novelty in the Charter context is primarily a function of the flexible remedy provided to enforce it. In practice, the contours of the Charter remedy will do much to govern the present shape of that right. That being the case, there can no more be a single notion of breach than there can be a single remedy to meet it. The question of breach must, therefore, be assessed in terms of the interests protected by the section and such remedy as the court can provide to secure them.
The principal interests of the accused relevant to trial within a reasonable time are first, the liberty interest, which may be impaired either by imprisonment or by bail conditions; second, the security interest, which as a general rule is impaired by the anxiety, stress and stigmatization arising out of delay, strongly added to in this case by the seizure of the appellant's assets; and finally, the fair trial interest, which may be impaired in this context to the extent that delay foreseeably damages the ability to present an effective defence. In assessing the reasonableness of any delay, a court may assume that the accused will have suffered an impairment to his security interest. The impairment to these interests must, in making a determination of reasonableness, be balanced against any proper reasons for delay advanced by the Crown.
A court of competent jurisdiction is free to employ the full discretion conferred on it by s. 24(1) of the Charter in choosing a remedy for breach of the right to trial within a reasonable time. The mandate given to the courts under that section is to provide a remedy for delay that is appropriate and just in the circumstances. That mandate is inconsistent with the notion that in a criminal context there can be only one remedy for a breach of s. 11 (b). Although there will be cases where a trial judge may well conclude that a stay would be the appropriate remedy, the circumstances will be infinitely variable from case to case and the remedy will vary with the circumstances.
In the case at bar, the delay caused by the Provincial Court judge substantially impaired the accused's security interests and also seriously prejudiced his ability to conduct his defence. The eleven‑month period of inaction on the part of the trial judge to decide the motion on the directed verdict was clearly unreasonable and in breach of s. 11 (b). There was no adequate explanation for the delay. The appellant's consent to the judge's requests for continuances did not justify the delay. The appellant's consent was pro forma in the sense that he had no real alternative. The superior court judge took into consideration the relevant factors and properly exercised her discretion in dismissing the charges. However, while this was formally the order sought, it is obvious from the circumstances of this case that appellant was not really seeking to obtain an acquittal but to put an end to the proceedings. Under these circumstances, a stay of proceedings would be a just and appropriate remedy.
Cases Cited
By Lamer J.
Applied: Mills v. The Queen, [1986] 1 S.C.R. 863; distinguished: Barker v. Wingo, 407 U.S. 514 (1972); referred to: Dickey v. Florida, 398 U.S. 30 (1970); United States v. Ewell, 383 U.S. 116 (1966); Duncan v. Louisiana, 391 U.S. 145 (1968); Klopfer v. North Carolina, 386 U.S. 213 (1967); Strunk v. United States, 412 U.S. 434 (1973); Re Regina and Beason (1983), 7 C.C.C. (3d) 20.
By Wilson J.
Referred to: Mills v. The Queen, [1986] 1 S.C.R. 863.
By Le Dain J.
Referred to: R. v. Antoine (1983), 5 C.C.C. (3d) 97; Re Regina and Beason (1983), 7 C.C.C. (3d) 20; R. v. Heaslip (1983), 9 C.C.C. (3d) 480.
By La Forest J.
Applied: Mills v. The Queen, [1986] 1 S.C.R. 863; considered: Barker v. Wingo, 407 U.S. 514 (1972); Dickey v. Florida, 398 U.S. 30 (1970); Klopfer v. North Carolina, 386 U.S. 213 (1967); referred to: Strunk v. United States, 412 U.S. 434 (1973); United States v. Loud Hawk, 106 S. Ct. 648 (1986); United States v. Ewell, 383 U.S. 116 (1966); United States v. MacDonald, 456 U.S. 1 (1982); Smith v. Hooey, 393 U.S. 374 (1969); Moore v. Arizona, 414 U.S. 25 (1973); Eur. Court H.R., Wemhoff case, judgment of 27 June 1968, Series A, No. 7; R. v. Cameron, [1982] 6 W.W.R. 270; R. v. Robins (1844), 1 Cox C.C. 114; R. v. Jewitt, [1985] 2 S.C.R. 128.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (b), (d), 24(1) , (2) .
Constitution of the United States, Sixth Amendment.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 605(1)(a), 738(1) [am. 1974‑75‑76, c. 43, s. 87(1)].
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, Art. 5(3).
Habeas Corpus Act, 1679 (Engl.), 31 Cha. II, c. 2.
Income Tax Act, R.S.C. 1952, c. 148 [am. 1970‑71‑72, c. 63, s. 1], s. 239(1)(a), (d), (4).
Liberty of the Subject Act, R.S.N.S. 1967, c. 164.
Authors Cited
Amsterdam, Anthony G. "Speedy Criminal Trial: Rights and Remedies" (1975), 27 Stan. L. Rev. 525.
Coke, Sir Edward. The Second Part of the Institutes of the Laws of England. London: W. Clarke & Sons, 1817.
Garton, Graham. "Re Canadian Charter of Rights and Freedoms, S. 11(b): The Relevance of Pre‑Charge Delay in Assessing the Right to Trial Within a Reasonable Time" (1984), 46 Nfld. & P.E.I.R. 177.
Hogg, Peter. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Note. "Dismissal of the Indictment as a Remedy for Denial of the Right to Speedy Trial" (1955), 64 Yale L.J. 1208.
Schneider, Alan A. "The Right to a Speedy Trial" (1968), 20 Stan. L. Rev. 476.
Uviller, Richard. "Barker v. Wingo: Speedy Trial Gets a Fast Shuffle" (1972), 72 Colum. L. Rev. 1376.
APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1984), 13 C.C.C. (3d) 297, 63 N.S.R. (2d) 275, 141 A.P.R. 275, 11 C.R.R. 272, setting aside a judgment of the Trial Division (1983), 9 C.C.C. (3d) 385, 61 N.S.R. (2d) 385, 133 A.P.R. 385, allowing the accused's application for relief pursuant to s. 24 of the Charter . Appeal allowed.
Joel E. Fichaud, for the appellant.
Eric Bowie, Q.C., and Douglas Richard, for the respondent.
The reasons of Dickson C.J. and Lamer J. were delivered by
1. Lamer J.‑‑There are two issues that are raised in this appeal, namely whether the Supreme Court of Nova Scotia was a court of competent jurisdiction for the purposes of an application pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms , and whether the right of the appellant to be tried within a reasonable time, guaranteed by s. 11 (b) of the Charter , was infringed. As was decided in Mills v. The Queen, [1986] 1 S.C.R. 863, the Supreme Court of Nova Scotia is a court of competent jurisdiction to grant a remedy under s. 24(1) of the Charter , and, given the circumstances of this case, it quite properly chose to exercise that jurisdiction. Furthermore, given the criteria I advanced in Mills, I am of the view that the delay in this case was unreasonable and in violation of the appellant's rights under s. 11 (b) of the Charter . I would therefore grant a stay of proceedings.
Facts
2. In May 1978, the Minister of National Revenue commenced an investigation of the appellant for alleged contraventions of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970‑71‑72, c. 63, s. 1). As a result of that investigation, the appellant was charged in September 1981 under s. 239(1)(a) and (d) of the Act with six counts of making false or deceptive returns for the taxation years 1972‑1977 and one count of wilful evasion of taxes in the amount of $129,665.22. On March 28, 1980, the appellant was reassessed under the Act for the years 1972‑1977. Notices of objection to the reassessment were filed by Mr. Rahey on June 20, 1980. The appeal was stayed by the Minister of National Revenue under s. 239(4) of the Act until the completion of the criminal proceedings. On January 9, 1981, on an application by the Minister of National Revenue to the Supreme Court of Nova Scotia, an order was granted placing all the property and assets of Mr. Rahey and his associated companies in the hands of a receiver, where it is my understanding they still remain.
3. The information was sworn against Mr. Rahey on August 10, 1981. In October of that year he pleaded not guilty to all counts. The trial began before Judge McIntyre, a Provincial Magistrate, in March 1982. There were five adjournments during the proceedings and the Crown finally closed its case in November 1982. There was then an adjournment until December 13, 1982, at which point the defence moved for a directed verdict. The proceedings were adjourned until January 21, 1983 for Judge McIntyre's decision. The following adjournments, which were initiated by Judge McIntyre for his decision on the defence's motion for a directed verdict, resulted in the delay which is the subject of the application by Mr. Rahey, as he argued that it constituted an unreasonable delay in his trial proceedings.
January 21, 1983 ‑‑adjourned to February 4;
February 4, 1983 ‑‑adjourned to February 18;
February 18, 1983 ‑‑adjourned to March 4;
March 4, 1983 ‑‑adjourned to March 18;
March 18, 1983 ‑‑adjourned to April 8;
April 8, 1983 ‑‑adjourned to April 22;
April 22, 1983 ‑‑adjourned to May 13;
May 13, 1983 ‑‑adjourned to May 27;
May 27, 1983 ‑‑adjourned to June 6;
June 6, 1983 ‑‑adjourned to June 17;
June 17, 1983 ‑‑adjourned to July 8;
July 8, 1983 ‑‑adjourned to July 22;
July 22, 1983 ‑‑adjourned to August 5;
August 5, 1983 ‑‑adjourned to August 19;
September 2, 1983 ‑‑adjourned to September 16.
4. On September 15, 1983, Crown counsel appeared before Judge McIntyre concerning the delay. Matters were then adjourned until September 30, and thereafter postponed four more times:
September 30, 1983 ‑‑adjourned to October 14;
October 14, 1983 ‑‑adjourned to October 28;
October 28, 1983 ‑‑adjourned to November 18;
November 18, 1983 ‑‑decision on motion, adjourned to December 9.
5. The appellant attended before the court on each of the dates listed above. In the autumn of 1983, defence counsel wrote Crown counsel requesting that he contact the judge and demand a decision. On September 15, 1983, Crown counsel appeared in court at which time Judge McIntyre stated that a written decision would be rendered by September 30. On September 29, the prearranged date for the 30th was cancelled and defence counsel again wrote Crown counsel alleging a violation of the appellant's constitutional rights and requesting that the Crown withdraw the charges against Mr. Rahey. On October 19, the request was repeated.
6. The Crown refused the request and on November 1, 1983, filed an Originating Notice for an order in the nature of mandamus to require Judge McIntyre to render his decision on the motion for a directed verdict. On November 14, 1983, Mr. Rahey made an application pursuant to s. 24(1) of the Charter for an order dismissing the charges against him. This application was based on an alleged violation of s. 11 (b) of the Charter and was presented to the Supreme Court of Nova Scotia.
7. On November 15, 1983, and filed November 18, 1983, Judge McIntyre finally rendered a decision dismissing the motion for a directed verdict. After a brief review of the case, he concluded as follows:
The court does find that adequate evidence has been adduced to require the accused to meet the charges preferred.
8. The appellant's only complaint is with the delay between December 1982 and November 1983 caused by Judge McIntyre's continuing failure to come to a decision.
Legislation
9. Although the appeal has its roots in the provisions of the Income Tax Act, the only relevant legislation for the purposes of the disposition of this case is ss. 11 (b) and 24(1) of the Charter :
11. Any person charged with an offence has the right
...
(b) to be tried within a reasonable time;
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
The Judgments
Nova Scotia Supreme Court
10. Glube C.J.T.D. granted the application for an order dismissing the charges against Mr. Rahey: (1983), 9 C.C.C. (3d) 385, 61 N.S.R. (2d) 385, 133 A.P.R. 385.
11. She dealt first with the question of whether the Nova Scotia Supreme Court was a court of competent jurisdiction for the purposes of an application under s. 24(1) of the Charter . She recognized that generally the trial court, in this case the Provincial Court, would have jurisdiction for a s. 24(1) application. However, given the special circumstances of the situation, she concluded that it would have been inappropriate for Mr. Rahey to have brought his application before the Provincial Court judge:
...I find this is not an appropriate application to be heard by the provincial court, which obviously had jurisdiction. I agree that, generally, it is preferable for such applications to be made to the court hearing the matter but on the facts and circumstances of this case I find that this is a case of unusual or special circumstances, because of the delay in rendering the decision on the directed verdict, and it is appropriately before the Supreme Court of Nova Scotia. I find the court has jurisdiction.
12. Glube C.J.T.D. assessed the question of unreasonable delay in light of the four factors set out by Powell J. of the Supreme Court of the United States in Barker v. Wingo, 407 U.S. 514 (1972), namely the length of the delay, the reason for the delay, the assertion by the accused of his right and the prejudice to the accused.
13. Glube C.J.T.D. held that, given the nature of the decision the trial judge had been asked to make, his delay was "shocking, inordinate and unconscionable". In general, a decision on a motion for a directed verdict is a brief one and there was no justification in Judge McIntyre's decision for an eleven‑month delay in reaching his conclusion. She also found that the accused had adequately asserted his right. Finally, she held that the judge's delay had seriously prejudiced the accused in both his ability to offer a defence and his ability to carry on business while under a continuing receivership. In her view, this was not an appropriate case in which to grant an order expediting the trial, "considering the long delay by the trial judge is the reason for finding a violation of s. 11 (b) of the Charter ." Glube C.J.T.D. thus considered that the only remedy that was appropriate and just in the circumstances was the dismissal of the seven counts against the accused.
Nova Scotia Court of Appeal
14. MacKeigan C.J.N.S., with whom Jones, Morrison, Macdonald and Pace JJ.A. concurred, allowed the Crown's appeal, set aside the dismissal and directed that the trial proceed: (1984), 13 C.C.C. (3d) 297, 63 N.S.R. (2d) 275, 141 A.P.R. 275, 11 C.R.R. 272.
15. Dealing first with the issue of the jurisdiction of the Supreme Court of Nova Scotia to hear an application for a remedy pursuant to s. 24(1) of the Charter , MacKeigan C.J.N.S. had no hesitation in finding that the Supreme Court was a court of competent jurisdiction for this purpose. He assumed without deciding that s. 11 (b) may apply to a judicial delay and that the right to be tried within a reasonable time "extends to the whole process of being tried and thus to the judge's time". Then, in applying the Barker v. Wingo, supra, criteria for assessing the reasonableness of a delay, he concluded that despite the "disgraceful slowness" of the trial judge in making up his mind and giving his decision, the evidence of prejudice was insubstantial:
The record and the representations made by the respondent at trial and on appeal do not reveal what witnesses might now be called or what kind of evidence they might have given which might now be affected by weakening of memory. I can find no evidence of any real or concrete prejudice having been suffered or likely to be suffered by Mr. Rahey as a result of the trial judge's delay. Neither the judge's delay nor any other delay in this case has been shown to have affected the defendant's ability to give a full and complete defence.
In my opinion, the alleged prejudice is insubstantial and entirely speculative and cannot be presumed.
Accordingly, MacKeigan C.J.N.S. allowed the appeal and directed that the trial proceed.
Jurisdiction on a s. 24(1) Application
16. As was decided in Mills v. The Queen, supra, a court of competent jurisdiction for the purposes of s. 24(1) in an extant case is, as a general rule, the trial court. It is the judge sitting at trial who would have jurisdiction over the person and the subject matter and would have jurisdiction to grant the necessary remedy. In Mills, it was also decided that the superior courts should have "constant, complete and concurrent jurisdiction" for s. 24(1) applications. But it was therein emphasized that the superior courts should decline to exercise this discretionary jurisdiction unless, in the opinion of the superior court and given the nature of the violation or any other circumstance, it is more suited than the trial court to assess and grant the remedy that is just and appropriate. The clearest, though not necessarily the only, instances where there is a need for the exercise of such jurisdiction are those where there is as yet no trial court within reach and the timeliness of the remedy or the need to prevent a continuing violation of rights is shown, and those where it is the process below itself which is alleged to be in violation of the Charter 's guarantees. The burden should be upon the claimant, in this case Mr. Rahey, to establish that the application is an appropriate one for the superior court's consideration.
17. The present appeal provides a perfect example of a situation where, although the trial court is a court of competent jurisdiction for the purpose of a s. 24(1) application, it would obviously be preferable that the matter be dealt with by the superior court. The delay in trying the appellant which is being challenged as unreasonable is the result of the trial judge's inaction for eleven months while deliberating on a motion for a directed verdict. It is the presiding judge who is alleged to be the cause of a violation of the appellant's rights under s. 11 (b).
18. Thus, Glube C.J.T.D. had jurisdiction to hear the s. 24(1) application that was presented before her, and she was obviously right in choosing to exercise her jurisdiction instead of leaving matters to the trial judge. In passing, might I say that her decision to exercise her jurisdiction is not a matter that should be reviewed on appeal unless that decision was arrived at in a manner and for reasons which traditionally have attracted interference on the part of appeal courts.
Unreasonable Delay
19. Under scrutiny is a period of eleven months during which the trial judge was deliberating on a motion for a directed verdict. During that time period, he initiated nineteen adjournments and, each time the court was in session, the appellant attended before the court. Glube C.J.T.D. was of the view that this delay was "shocking, inordinate and unconscionable" and prejudiced the accused. The Court of Appeal called the trial judge "disgracefully slow". Regardless of how it is phrased, the courts below have agreed that this delay was unreasonable. The Court of Appeal differed in result because it found that there was no evidence that the unreasonable delay caused prejudice to the accused.
20. In my reasons for judgment in Mills, I elaborated upon what I think should be the test for determining whether or not there has been an unreasonable delay under s. 11 (b). I indicated that, in my opinion, the fundamental purpose of s. 11 (b) is to secure, within a specific framework, the more extensive right to liberty and security of the person of which no one may be deprived except in accordance with the principles of fundamental justice. In my view, s. 11 (b) is aimed at protecting, in a specific manner and setting, the rights set forth in s. 7 though, of course, the scope of s. 7 extends beyond those manifestations of the right to liberty and to security of the person which are found in s. 11 (b).
21. Limitations on the liberty of the accused such as pretrial detention are easily and objectively ascertainable. However, the liberty interest of the accused may also be impaired by restrictions on the free movement of the individual imposed while he is released on bail.
22. As regards the security of the person, I am of the view that, in the context of s. 11 (b), the concept of security of the person should not be restricted to physical integrity. Rather, it should encompass protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation" (Anthony G. Amsterdam, "Speedy Criminal Trial: Rights and Remedies" (1975), 27 Stan. L. Rev. 525, at p. 533). These vexations and vicissitudes include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, and uncertainty as to the outcome and sanction.
23. In my view, such forms of prejudice leading to impairment of the security of the person may, in and of themselves, constitute a violation of s. 11 (b) if allowed to fester over‑long.
24. To those aspects of the liberty and security interests, the American courts have added a third, the right to a full and fair defence in a criminal trial, long recognized in Anglo‑American case‑law. In the case of Barker v. Wingo, supra, at p. 532, Powell J., on behalf of the United States Supreme Court, identified the three interests which the speedy trial right was designed to protect:
(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.
25. The defendant will be prejudiced, it is suggested, by delays which lead to the loss of defence evidence, the death or disappearance of key defence witnes