R. v. Askov

R. v. Askov
Collection
Supreme Court Judgments
Date
1990-10-18
Report
[1990] 2 SCR 1199
Case number
20560
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 20560
Decision Content
R. v. Askov, [1990] 2 S.C.R. 1199
Elijah Anton Askov, Ralph Hussey,
Samuel Gugliotta and Edward Melo Appellants
v.
Her Majesty The Queen Respondent
indexed as: r. v. askov
File No.: 20560.
1990: March 23; 1990: October 18.
Present: Dickson C.J.* and Lamer C.J.** and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Trial within a reasonable time ‑‑ Delay of almost two years in bringing case to trial following committal ‑‑ Delay resulting chiefly from institutional problems ‑‑ Whether right to be tried within reasonable time infringed ‑‑ Canadian Charter of Rights and Freedoms, s. 11 (b).
Appellants were charged with conspiracy to commit extortion in November 1983. A, H and M were also charged with several related offences and detained in custody for almost six months before being released on recognizances. G was released on a recognizance shortly after his arrest. All counsel agreed on a date early in July 1984 for the preliminary hearing, but it could not be completed until September. A trial was then set for the first available date, in October 1985. The case could not be heard during that session, and was put over for trial to September 1986, almost two years after the preliminary hearing. When the trial finally began, appellants moved to stay the proceedings on the ground that the trial had been unreasonably delayed. The trial judge found that the major part of the delay following appellants' committal stemmed from institutional problems and granted the stay. The Court of Appeal found: (1) no misconduct on the part of the Crown; (2) no indication of any objection by the appellants to any of the adjournments; and (3) no evidence of any actual prejudice to the appellants. It accordingly set aside the stay and directed that the trial proceed.
Held: The appeal should be allowed and a stay of proceedings directed.
Per Dickson C.J. and La Forest, L'Heureux‑Dubé, Gonthier and Cory JJ.: Under s. 11(b) of the Charter , any person charged with an offence has the right to be tried within a reasonable time and this right, like other specific s. 11 guarantees, is primarily concerned with an aspect of fundamental justice guaranteed by s. 7 . The primary aim of s. 11 (b) is to protect the individual's rights and to protect fundamental justice for the accused. A community or societal interest, however, is implicit in the section in that it ensures, first, that law breakers are brought to trial and dealt with according to the law and, second, that those on trial are treated fairly and justly. A quick resolution of the charges also has important practical benefits, since memories fade with time, and witnesses may move, become ill or die. Victims, too, have a special interest in having criminal trials take place within a reasonable time, and all members of the community are entitled to see that the justice system works fairly, efficiently and with reasonable dispatch. The failure of the justice system to do so inevitably leads to community frustration with the judicial system and eventually to a feeling of contempt for court procedures.
The court should consider a number of factors in determining whether the delay in bringing the accused to trial has been unreasonable: (1) the length of the delay; (2) the explanation for the delay; (3) waiver; and (4) prejudice to the accused. The longer the delay, the more difficult it should be for a court to excuse it, and very lengthy delays may be such that they cannot be justified for any reason. Delays attributable to the Crown will weigh in favour of the accused. Complex cases, however, will justify delays longer than those acceptable in simple cases. Systemic or institutional delays will also weigh against the Crown. When considering delays occasioned by inadequate institutional resources, the question of how long a delay is too long may be resolved by comparing the questioned jurisdiction to others in the country. The comparison of similar and thus comparable districts must always be made with the better districts, not the worst. The comparison need not be too precise or exact; rather, it should look to the appropriate ranges of delay in determining what is a reasonable limit. In all cases it will be incumbent upon the Crown to show that the institutional delay in question is justifiable. Certain actions of the accused, on the other hand, will justify delays. A waiver by the accused of his rights will justify delay, but the waiver must be informed, unequivocal and freely given to be valid.
Here, the delay of almost two years following the preliminary hearing was clearly excessive and unreasonable. The Crown did not show that the delay did not prejudice the appellants, and nothing in the case was so complex or inherently difficult as to justify a lengthy delay. This trial was to be heard in a judicial district notorious for the time required to obtain a trial date and figures from comparable districts demonstrate that the situation there is unreasonable and intolerable.
Per McLachlin J.: Cory J.'s reasons were agreed with and comments were made on the process of determining whether a trial has been unreasonably delayed. Section 11(b) is designed to serve the interests of society generally, as well as those of the accused and the prosecution. Two elements must be assessed under s. 11(b): the length of the delay, and its reasonableness. If the delay is prima facie excessive, it is necessary to go on to consider whether it is nonetheless reasonable. Reasonableness may depend on a variety of factors, including the prejudice caused by the delay. Absent waiver, a certain prejudice in a long‑delayed trial may be inferred if not rebutted by the Crown. Here, the delay was prima facie excessive and unreasonable and entitled the accused to the benefit of s. 11(b).
Per Sopinka J.: Cory J.'s reasons were agreed with, subject to Lamer C.J.'s comments on the purported societal interest in s. 11(b).
Per Wilson J.: Cory J.'s reasons were agreed with except on two issues. Section 11 (b) of the Charter protects only the accused's interest in a speedy trial, not the societal interest. Nor does the section protect an accused from prejudice arising from the simple fact of being charged, but only from prejudice arising from the Crown's failure to try him or her within a reasonable time. The former is accepted as a necessary incident of our justice system. The latter is not.
Per Lamer C.J.: Cory J.'s reasons were mostly agreed with, subject to two qualifications. While society may have an interest in the functioning of the criminal justice system, this interest is not what s. 11 (b) is designed to protect. Further, because of the very nature of our criminal justice system, there exists an irrebuttable presumption of prejudice to the accused from the moment the charge is laid. The accused need not demonstrate any further manifestations of prejudice beyond the kind presumed in order to establish an infringement of s. 11 (b).
Cases Cited
By Cory J.
Considered: Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Smith, [1989] 2 S.C.R. 1120; referred to: Barker v. Wingo, 407 U.S. 514 (1972); R. v. Antoine (1983), 5 C.C.C. (3d) 97; Re Regina & Beason (1983), 7 C.C.C. (3d) 20; R. v. Heaslip (1983), 9 C.C.C. (3d) 480; R. v. Dennis (1984), 14 D.L.R. (4th) 205; R. v. Belton (1982), 3 C.C.C. (3d) 427; R. v. Perry (1984), 14 C.C.C. (3d) 5; Re Kott & The Queen (1983), 7 C.C.C. (3d) 317; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; Park v. The Queen, [1981] 2 S.C.R. 64.
By McLachlin J.
Referred to: Barker v. Wingo, 407 U.S. 514 (1972).
By Wilson J.
Distinguished: Barker v. Wingo, 407 U.S. 514 (1972); referred to: R. v. Rahey, [1987] 1 S.C.R. 588.
By Lamer C.J.
Considered: Mills v. The Queen, [1986] 1 S.C.R. 863; referred to: R. v. Turpin, [1989] 1 S.C.R. 1296.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 10 (b), 11 (b), (d), (h), 24 .
Criminal Code, R.S.C., 1985, c. C‑46, s. 599 .
United States Constitution, Sixth Amendment.
Authors Cited
Howland, W. G. C. "Reports on the Administration of Justice in Ontario on the Opening of the Courts for 1990" (1990), 24 L. Soc. Gaz.5.
Zuber, T. G. Report of the Ontario Courts Inquiry. Toronto: Queen's Printer, 1987.
APPEAL from a judgment of the Ontario Court of Appeal (1987), 37 C.C.C. (3d) 289, 60 C.R. (3d) 277, 33 C.R.R. 319, 22 O.A.C. 299, setting aside the stay of proceedings granted by Judge Bolan. Appeal allowed.
Michael Code, for the appellant Askov.
Clayton Ruby, for the appellant Hussey.
David McCombs and David E. Harris, for the appellant Gugliotta.
Joseph Bloomenfeld, for the appellant Melo.
W. Brian Trafford, Q.C., and Susan Chapman, for the respondent.
//Cory J.//
The judgment of Dickson C.J. and La Forest, L'Heureux-Dubé, Gonthier and Cory JJ. was delivered by
CORY J. -- Section 11 (b) of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be tried within a reasonable time. What constitutes an unreasonable delay of a trial must be determined on this appeal. In order to reach a conclusion it will be necessary to consider and apply criteria or factors which should be used to ascertain if a delay is unreasonable and in particular, to consider the consequences of so-called institutional delays.
Factual Background
All the appellants, Askov, Hussey, Melo and Gugliotta, were charged with conspiracy to commit extortion against Peter Belmont. As well, Askov, Hussey and Melo were jointly charged with the offences of possession of a prohibited weapon, possession of a weapon for a purpose dangerous to the public peace, pointing a firearm and assault with a weapon. Hussey was also charged with criminal negligence in the operation of a motor vehicle.
Peter Belmont operated an agency in Montréal which supplied "exotic" dancers to licensed premises in Ontario. He had once been in the business of supplying dancers to establishments in the Toronto region and wished to do so again. The appellant Melo had by then established himself as the supplier of exotic dancers in that district. As a result of his intrusion into what had become Melo's preserve, Belmont alleged that he was harassed by the appellants. He said he had been requested by them to pay a large commission for the privilege of operating in Toronto. Belmont informed the police of the threats that had been made to him. As part of their investigation into these allegations, the police assigned an undercover officer to act as driver and bodyguard for Belmont.
Belmont and his "bodyguard" met the appellants at a bar in Hamilton on November 5, 1983. At this meeting Belmont refused the suggestion that he would pay a 50 per cent commission to Melo and Gugliotta for his operations in the Toronto area. On November 12 Belmont and his bodyguard visited a tavern in Concord, Ontario. When they left they were pursued and stopped by a vehicle driven by Hussey with Melo and Askov as passengers. Melo and Askov, brandishing a sawed-off shotgun and a knife, got out of their car, came over to Belmont and threatened him.
Luckily for Belmont, the police had the area under surveillance and were monitoring the events as they occurred. They quickly moved in and arrested Melo and Askov at the scene. Hussey fled in the car, but later turned himself in to the police and was charged on November 14. Gugliotta was apprehended on November 30.
It is necessary to set out the proceedings following the arrest in some detail. The appellants Melo, Askov and Hussey were initially denied bail. They were detained in custody for almost six months. On May 7, 1984, they were each ordered to be released on a recognizance of $50,000. Gugliotta was released on December 2, 1983 shortly after his arrest on a recognizance of $20,000. The terms of release for all the appellants involved reporting to the police and abstention from communicating with their co-accused. These conditions were varied from time to time to permit more freedom of movement for the appellants. All the applications which were made for more lenient bail conditions were granted. Nonetheless, the appellants remained under considerable restraint.
Askov was re-arrested on an unrelated charge on October 1, 1984.
With three of the accused in custody, the Crown, in a commendable manner, was prepared as soon as December 1983 to set an early date for the preliminary hearing. However, at the request of the appellants the matter was put over to February 14, 1984 when all counsel agreed on a date in the first week of July for the preliminary hearing to be held. At this time it was specifically indicated that an earlier date could be arranged if a request was made by the appellants, but none was forthcoming. When the preliminary hearing commenced on July 4, 1984, it could not be completed because another preliminary had been set for a later day in the same week. As a result, the preliminary hearing could not be completed until September 21, 1984, some ten months after the arrests.
On October 1, 1984, the appellants appeared before Judge Keenan presiding in the assignment court. A trial date was set for the first available date which was October 15, 1985, more than a year away and nearly two years from the date of the initial arrests. Despite what seems far too lengthy a delay, an earlier date could not be set due to other cases which had priority either because the accused was in custody or because the offence date was earlier than that of the case at bar. On October 25, 1985, when it was apparent that the case simply could not be heard during that session, counsel for all the appellants and the Crown appeared and the case was put over for trial to September 2, 1986. When the trial finally began on that date, counsel for the appellants moved to stay the proceedings on the grounds that the trial had been unreasonably delayed. The stay was granted by order of Judge Bolan, the senior judge of the District Court of the Judicial District of Peel. The Crown appealed the order of Bolan Dist. Ct. J. to the Court of Appeal, which set aside the stay and directed that the trial proceed.
The Positions of the Courts Below
The District Court
Bolan Dist. Ct. J., presiding at the trial, found that a period of thirty-four months to bring a case to trial was prima facie excessive. He stated:
. . . two years in bringing a case to trial once it is in District Court is too long, unless, of course, there are exceptional circumstances. And in this case, there are none.
He noted that a portion of the delay prior to the committal of the appellants was attributable to them and did not take into consideration any delay prior to the committal for trial. He found that the major part of the balance of the delay was the result of institutional problems. He found the delays to be unreasonable and attributable to a "chronic shortage of institutional resources in the Judicial District of Peel". He observed:
I am satisfied that the reason for the delay was caused by the insufficient institutional resources in the Judicial District of Peel. Even if more judges had been available for the jury sittings of October 15, 1985, there would have been no courtrooms in which to hold the trials. It is obvious that this jurisdiction lacks sufficient resources to meet the demands and administer the criminal justice system with minimal delay. This has caused a systematic delay in the administration of justice. It was this way when I came here in 1981 and it continues to be this way today [September 1986]. Even this month cases which are to be set for trial are set for September and October of 1987. Those responsible for the proper administration of justice have known about this systematic delay for at least five years; yet nothing has been done about it.
. . .
In my view there has been an unreasonable delay in bringing this case on for trial and the delay has been caused by the chronic shortage of institutional resources in the Judicial District of Peel.
Bolan Dist. Ct. J. found that the appellants had not waived their right to a trial within a reasonable time. While no objections to the delay had earlier been raised by appellants' counsel, he determined that consent to a delay and hence waiver could not be inferred from their silence. Further, even if they had insisted upon their rights, the institutional limitations on trials could not have been overcome. On each occasion the earliest possible trial dates had been alloted to them. Even if an earlier date had been given to them, it could only have been accomplished at the expense of another accused waiting for trial.
The trial judge also found that the appellants had been prejudiced by the delay on the basis of the six months spent in custody by three of the appellants and as well by the restrictive conditions imposed by the orders for interim release.
The Court of Appeal
In carefully considered reasons, the Court of Appeal reviewed the decisions of this Court in Mills v. The Queen, [1986] 1 S.C.R. 863, and in R. v. Rahey, [1987] 1 S.C.R. 588. From those cases were derived the factors which it considered should be taken into consideration and they were applied to the case at bar. The Court of Appeal decided that the appellants' rights under s. 11 (b) had not been infringed. It found (1) that there was no misconduct on the part of the Crown resulting in the delay or any part of it; (2) that there was no indication of any objection by any of the appellants to any of the adjournments; (3) that there was no evidence of any actual prejudice to the appellants caused by the delay. This conclusion was reached primarily on the basis that any hardship that may have existed in the bail terms was cured when the orders were varied whenever such a request was made by the appellants.
The Court of Appeal found that "perhaps the most important factor" in reaching its decision that there had been no breach of the Charter was the conduct of the appellants when the final adjournment was granted and the last trial date set. At that time, although some of the appellants announced that they were ready to proceed on the first scheduled date, not any of them objected to the one year adjournment and no allegation that any prejudice had been suffered as a result of the delay was advanced. In the opinion of the Court of Appeal the appellants should have objected to this delay even if they thought such an objection was futile. It was found that the silence seemed to be a deliberate move aimed at concealing the intention of the appellants to seek the Charter -based remedy of a stay later in the proceedings. The Court determined that there had been no breach of the Charter right to a trial within a reasonable time and as a result it was unnecessary to consider the appropriate remedy which might have been ordered pursuant to s. 24 of the Charter .
It is significant that the opinion of the Court of Appeal, as to the most important factor in the decision, was based upon an incomplete transcript of the day's proceedings before the Assignment Court Judge.
Judicial Consideration of the Principle of Providing a Trial Within a Reasonable Time
The United States
In the United States the Sixth Amendment ensures that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial". The United States Supreme Court considered the issue in Barker v. Wingo, 407 U.S. 514 (1972). In that case Barker, who was charged with murder, was brought to trial five years after the murder was committed. The delay was caused by the necessity of trying an accomplice beforehand. This prerequisite trial was extremely complicated; the accomplice was tried no less than six times. During this ongoing process, Barker initially had agreed to continuances or adjournments. He only began to assert his right to a speedy trial three and one-half years after the charges were laid.
The court held that a flexible approach should be taken to cases involving delay and that the multiple purposes or aims of the Sixth Amendment must be appreciated. Powell J., giving the reasons for the court, recognized the general concern that all persons accused with crimes should be treated according to fair and decent procedures. He particularly noted that there were three individual interests which the right was designed to protect. They were:
(i) to prevent oppressive pre-trial incarceration;
(ii) to minimize the anxiety and concern of the accused; and
(iii)to limit the possibility that the defence will be impaired or prejudiced.
However, Powell J. went on to observe that unlike other constitutional rights which only have an individual interest, the right to a speedy trial involved the added dimension of a societal interest. He found that a delay could result in increased financial cost to society and as well, could have a negative effect upon the credibility of the justice system. Further, it was noted that a delay could work to the advantage of the accused. For example, the fostering of a delay could become a defence tactic designed to take advantage of failing memories or missing witnesses or could permit the accused to manipulate the system in order to bargain for a lesser sentence. Specifically, he stated at p. 521 that the right to a speedy trial was:
. . . a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial.
In order to balance the individual right and the communal aspect of the Sixth Amendment, the U.S. Supreme Court adopted an approach of ad hoc balancing "in which the conduct of both the prosecution and the defendant are weighed" (p. 530). The balancing is undertaken by reference to four factors identified by Powell J. as the test for infringement of the right to a "speedy trial". They are as follows:
(i) the length of the delay;
(ii) the reason for the delay;
(ii)the accused's assertion of the right; and
(iv) prejudice to the accused.
The first factor is the triggering mechanism or threshold determination of the excessiveness of the delay. If that delay appears prima facie excessive, the Court must then consider the three remaining factors to determine whether the accused has been deprived of the Sixth Amendment right.
Position in Canada Subsequent to the Passing of the Charter
Immediately following the passage of the Charter , the approach taken by the U.S. Supreme Court in Barker v. Wingo, supra, was widely approved and adopted. See R. v. Antoine (1983), 5 C.C.C. (3d) 97 (Ont. C.A.), Re Regina & Beason (1983), 7 C.C.C. (3d) 20 (Ont. C.A.), R. v. Heaslip (1983), 9 C.C.C. (3d) 480 (Ont. C.A.) and R. v. Dennis (1984), 14 D.L.R. (4th) 205 (N.W.T.C.A.). However, that approach was not universally followed: see e.g. R. v. Belton (1982), 3 C.C.C. (3d) 427 (Man. C.A.), R. v. Perry (1984), 14 C.C.C. (3d) 5 (N.B.C.A.), and Re Kott & The Queen (1983), 7 C.C.C. (3d) 317 (Que. C.A.).
Mills v. The Queen
The issue was first considered by this Court in Mills v. The Queen, supra. Lamer J. in his dissenting reasons called into question the appropriateness of adopting the American approach in the Canadian setting.
In that case the preliminary inquiry was not begun until nineteen months after the arrest and one month after the proclamation of the Charter . Mills moved for a stay based on the contention that the rights guaranteed to him under s. 11 (b) of the Charter had been infringed. The Crown conceded that ten months of the delay was due to its negligence. The outcome of the case turned upon the resolution of the question whether the court conducting a preliminary inquiry was a "court of competent jurisdiction" so as to empower a provincial court judge to hear and determine Charter questions. This Court was unanimously of the view that a provincial court judge sitting on a preliminary hearing was not a court of competent jurisdiction capable of granting a remedy under s. 24(1) . The majority further expressed the opinion that such a provincial court judge was not even capable of determining under s. 24(1) whether a Charter violation had occurred for the purpose of excluding evidence pursuant to s. 24(2) . The minority would have granted such power to the provincial court judge.
In his dissenting reasons, Lamer J., as he then was, with Dickson C.J. concurring, set forth the basis for determining whether or not the delay of a trial was unreasonable. Although he favoured a flexible balancing test, he rejected the approach taken in Barker v. Wingo, supra. His difference with the reasoning in that case was grounded on the proposition that in the context of the Canadian Charter , the s. 11 (b) right was by its very nature an individual right and that the provision did not have a collective or societal dimension. It was his opinion that the societal interest in prompt and effective prosecution of criminal cases found no expression in s. 11 (b), although that interest may have been incidentally satisfied by the provision. At page 918 he stated:
. . . 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 . . . . The purpose of s. 11 (b) can, in other words, be ascertained by reference to s. 7 of the Charter . . . . Hence, the focus for the analysis and proper understanding of s. 11 (b) must be the individual, his or her interests and the limitation or infringement of those interests.
It was his opinion that the "liberty interest" inherent in s. 11 (b) addresses the protection of the physical freedom of the accused against unduly lengthy pre-trial detention. The "security of the person interest" recognizes the need for the protection of more than just the physical integrity of the accused thereby providing a safeguard against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation". These vexations were described as the "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, uncertainty as to the outcome and sanction". In Lamer J.'s opinion all these are strictly individual rights. Any societal interest in a fair trial and any prejudice to the accused's ability to make full answer and defence as a result of delay was, in his opinion, embodied in the s. 11 (d) right to a fair trial.
As a result of this expressed view of the purpose of s. 11 (b), Lamer J. developed a different balancing test than that set out in Barker v. Wingo. Since there was no need to balance any interest of society, the test did not need to take into account the conduct of the parties, particularly that of the accused. As well, actual prejudice to the accused did not need to be considered, as actual prejudice is also a component of society's interest in a fair trial. For Lamer J. the four factors to be considered in determining the reasonableness of any given delay were the following:
(i) the growing impairment of the interests of the accused by the passage of time;
(ii) any waiver of a time period;
(iii)the time requirements inherent in the nature of the case and
(iv) institutional resources.
He noted that the impairment of the liberty interest of the individual accused can be easily ascertained where there is pre-trial detention or the release of the accused pending trial is made subject to bail conditions. With regard to the impairment of the security of the person, Lamer J. found that an objective standard was needed to avoid placing the burden of demonstrating subjective suffering on the accused. The proper approach in his view was to recognize that the potential for prejudice arising from delay forms the basis of the right, but at the same time to acknowledge that actual prejudice need not be and indeed is not relevant to establishing a s. 11 (b) violation. This position is the basis for the following two propositions which are set forth at p. 926:
First, prejudice is part of the rationale for the right and is assured by the very presence of s. 11 (b) in the Charter . Consequently, there exists an irrebuttable presumption that, as of the moment of the charge, the accused suffers a prejudice the guarantee is aimed at limiting, and that the prejudice increases over time.
Second, actual prejudice is, therefore, irrelevant when determining unreasonable delay. Actual prejudice will, however, be relevant to a determination of appropriate relief . . . . Prejudice to the liberty and security of the person, the former objectively ascertainable and the latter presumed, must be kept to a minimum if the presumption of innocence is to be respected.
On the question of waiver, Lamer J. expressed the opinion that "[d]elay which is requested, caused by, or consented to, by the accused should normally be excluded from consideration" except in circumstances where the accused's delay was caused by a previous state delay, that is to say a key defence witness had moved during the period of a delay caused by the Crown. It was emphasized that silence on the part of an accused is not sufficient to constitute a waiver. Rather, it must be expressed and informed.
With regard to inherent time requirements, it was the view of Lamer J. that the resolution of the issue should be based upon a determination of the period normally required for the preparation and completion of a particular case. That time was to be based upon the assumption that adequate institutional resources and facilities were available. Then having regard to the number and complexities of the charges and the number of accused, a comparison should be made between the "normal" period and the actual delay in the particular case.
Lastly, on the matter of institutional delay, Lamer J. recognized that in Canada great deference must be given to the decisions made by regional authorities regarding the local situation resulting from the wide differences which exist between jurisdictions in their terrain, including differences in population and financial resources. However, that deference must have some limitations. If some reasonable limits were not imposed, the lack of institutional resources could all too easily become an ever present excuse for allowing prolonged and unacceptable delays in those jurisdictions which had past histories of long delays. To take such an approach would legitimize both current and future delays. It was said that the appropriate gauge for comparison should be those jurisdictions that have good records for prompt trials and fewer indications of systemic delays. These jurisdictions would provide the appropriate standard because they had obviously balanced the demands of the system and the allocation of the available resources in order to administer criminal justice with a minimal delay.
In order to give the governments of those jurisdictions which required time to allocate resources to speed the trial of criminal actions, Lamer J. would provide for a "transitional period". During this period courts could more readily excuse delays caused by institutional limitations. Such a transitional period was found to be necessary in light of the finality of the remedy of the stay of proceedings.
Wilson J., also in dissent on the jurisdictional issue, accepted the general analysis set out by Lamer J. pertaining to s. 11 (b) except with regard to the issue of prejudice. She was of the opinion that there should be no irrebuttable presumption of prejudice. Rather, actual prejudice was a factor to be considered in each case. She put forward her position in these words at p. 967:
What the accused has to demonstrate under s. 11 (b), in my opinion, is that he has suffered an impairment of his liberty and security interests as a result of the Crown's failure to bring him to trial within a reasonable time, not as a result of the Crown's having charged him.
She expressed the view that this requirement flows from a "fair trial" interest which is in certain contexts more apposite to an analysis under s. 11 (b) than s. 11 (d). That is to say, it is implicit in her reasons that one of the underlying goals of s. 11 (b) is a collective interest in ensuring that delays do not impair fair trials and more specifically that the accused should not be deprived by the delay of the right to make full answer and defence. Such a deprivation would result in a prejudice flowing from the delay itself and not from the mere fact of being charged with a criminal offence. Therefore, in her view, a stay should be granted only in those cases where the delay actually prejudiced the accused or adversely affected the ability of an accused to obtain a fair trial.
R. v. Rahey
The Court next examined the application of s. 11 (b) in R. v. Rahey, supra. Rahey was charged with six counts of making false returns in his income tax forms and one count of wilful income tax evasion. His trial before a provincial court judge began six months after he was charged. In the eleven-month period which followed the closing of the Crown's case there were no fewer than nineteen adjournments, all initiated by the trial judge. For nine of these adjournments, Rahey made no objection. When the judge ordered further adjournments, he contended that they constituted a violation of his s. 11 (b) Charter rights. He brought an application to stay before the Supreme Court of Nova Scotia and later an appeal to this Court where a stay of proceedings was granted.
Four judges delivered written reasons. Lamer J., with Dickson C.J. concurring, restated his position in Mills, but extended the "transitional period" to include the period up to the issuance of the reasons in Rahey. Wilson J., with Estey J. concurring, maintained her position set forth in Mills and referred again to the necessity of focussing on the prejudice resulting from the unreasonable delay and not upon the prejudice flowing from the charge. Le Dain J., with Beetz J. concurring, supported the approach taken by the U.S. Supreme Court in Barker v. Wingo and by the Ontario Court of Appeal in Beason and Heaslip. He agreed with Wilson J. that the "fair trial" interests are a part of the s. 11 (b) Charter rights. Le Dain J. would have required that the accused show prima facie unreasonableness before the Court proceeded to the second step of investigating the reasons for delay and the third step of determining whether there was actual prejudice to the accused. La Forest J., with McIntyre J. concurring, adopted a position that fell between the approaches of Wilson J. and Lamer J. He recognized that the fair trial interest was a consideration to be taken into account and as a result that prejudice to the accused does not arise automatically.
R. v. Conway
In R. v. Conway, [1989] 1 S.C.R. 1659, Conway sought to obtain from this Court a stay of proceedings to prevent a third trial which would take place more than five years after the initial charge of murder had been laid.
Conway was charged with first degree murder in connection with the stabbing death. Some sixteen months after he was charged, the accused was tried and convicted of the included offence of second degree murder. An appeal was taken and one year later a new trial was directed by the Court of Appeal. It was agreed that there was no time lost during the period from the launching of the appeal until the order was given by the Court of Appeal directing a new trial. Conway then had difficulty finding a counsel to represent him at the second trial. It was conceded that the problem arose in no small part from Conway's own actions. After a long series of motions brought by Conway for adjournments and changes of venue, a second trial was held which resulted in a mistrial. At the opening of the third trial the accused applied for a stay based on abuse of process and unreasonable delay. A stay was granted by the trial judge, but overturned by the Court of Appeal.
L'Heureux-Dubé J., writing for the majority of a panel of five judges, which included Dickson C.J. and La Forest J., dismissed the appeal and rejected the stay. She held that the overall delay did not prevent the accused from obtaining a fair trial. She recognized that while there was agreement as to the general approach to be used, that is to say, that there had to be a balancing of a number of factors, there was still disagreement on what factors should be considered. She concluded that the Court should take a flexible and functional approach to the issue of delay. The factors that she found should be considered included prejudice suffered by the accused; whether or not there had been a waiver by the accused; the inherent time requirements in the trial and appeal; and the limitations on institutional resources. The critical factor in the decision was the conduct of the accused Conway who was responsible for much of the delay. It was held that the rest of the delay was justified by the inherent time requirements of the case. Further, it was noted that it was impossible to conclude that the accused had been prejudiced.
Lamer J., in separate reasons, concluded that the actions of the accused constituted a waiver during the transitional time period which he had referred to in his reasons in Mills and Rahey. Since the case was pre-Rahey, in his view it should be decided on the law which was applicable before the Rahey decision. He would therefore have refused the stay.
Sopinka J., in dissent, found that the delay was prima facie unreasonable. In his opinion it was incumbent on the Crown to justify the delay. He concluded that once the accused had established a prima facie case, the onus of proving reasonableness shifted to the Crown.
R. v. Smith
The facts in R. v. Smith, [1989] 2 S.C.R. 1120, are relatively straightforward. Smith was charged with theft. The preliminary inquiry could not be scheduled until over a year had passed from the time he was charged. The institutional reasons which caused this delay arose from the scheduling of the preliminary hearing for four days in August, at a time when the provincial court judges were on holiday. The preliminary hearing could not be rescheduled until late in December because the investigating officer was unavailable before that date. Once again the scheduled December date came within a holiday period for provincial court judges and a further adjournment was required. When the case finally came to trial, an application was brought for a stay which was granted.
In this Court, Sopinka J., writing for all members of the Court, upheld the stay. He recognized that there was still a considerable disagreement as to the factors that should be taken into account on the balancing process and also with regard to the composition of the constituent components of the prejudice issue. However, he was of the view that the problem did not have to be dealt with in light of the facts of the case. Rather, using the "flexible and functional" approach set forth in Conway, the case could be readily decided "on the basis of principles that have been accepted in" Mills, Rahey a