Mills v. The Queen

Mills v. The Queen
Collection
Supreme Court Judgments
Date
1986-06-26
Report
[1986] 1 SCR 863
Case number
17818
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 17818
Decision Content
Mills v. The Queen, [1986] 1 S.C.R. 863
James Henry Mills Appellant;
and
Her Majesty The Queen Respondent.
File No.: 17818.
*1984: June 6, 7.
*Present: Dickson C.J. and Ritchie, Beetz, Estey, Chouinard,Lamer and Wilson JJ.
**Re‑hearing: 1985: October 9; 1986: June 26.
**Present: Dickson C.J. and Beetz, McIntyre, Chouinard, Lamer,Wilson and La Forest JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Courts of competent jurisdiction to grant remedy under s. 24(1) of the Charter ‑‑ Accused alleging at his preliminary inquiry a violation of his Charter right to be tried within reasonable time ‑‑ Preliminary inquiry judge not a court of competent jurisdiction ‑‑ Procedure to be followed in seeking a remedy ‑‑ Canadian Charter of Rights and Freedoms, ss. 11 (b), 24 .
Constitutional law ‑‑ Charter of Rights ‑‑ Trial within reasonable time ‑‑ Whether accused's right to be tried within reasonable delay denied ‑‑ Canadian Charter of Rights and Freedoms, s. 11 (b).
The accused was charged with robbery in March 1977 and arrested in October 1979. At his preliminary in‑ quiry held on May 18, 1982, one month after the proclamation of the Canadian Charter of Rights and Freedoms , the accused made a motion to stay the proceedings alleging, among other things, denial of his right to be tried within a reasonable time under s. 11 (b) of the Charter . Of the 19 month delay complained of, the Crown acknowledged that 10 months was due to its negligent inaction. It was found at the preliminary inquiry that, although a preliminary hearing judge is a court of competent jurisdiction to consider an alleged s. 11 (b) violation under s. 24 of the Charter, s. 24 did not apply in this case because it had only a prospective effect. The accused unsuccessfully sought an application for prohibition and certiorari, to prohibit further proceedings on the charge and to quash the ruling, and an application for a remedy under s. 24 of the Charter in the Ontario Supreme Court. The motions court judge held that a preliminary hearing judge was a court of competent jurisdiction within the meaning of s. 24 but concluded on the merits that there had been no violation of s. 11 (b). The accused's appeal to the Court of Appeal, pursuant to s. 719 of the Criminal Code which authorizes only appeals in prerogative writs applications, was dismissed. The accused's appeal to this Court raised several issues: (1) Where an application alleges a breach of s. 11 (b) of the Charter (a) is a judge or justice presiding at a preliminary inquiry a court of competent jurisdiction for the purposes of an application under s. 24(1) of the Charter ; (b) is a judge of the supreme court of a province a court of competent jurisdiction for the purposes of an originating application under s. 24(1) of the Charter ; (2) Assuming that a judge presiding at a preliminary hearing is a court of competent jurisdiction, is the decision of the inferior court susceptible to review either by prerogative writ or by independent application to a superior court pursuant to s. 24(1) of the Charter ; and (3) Did the Court of Appeal for Ontario err in concluding that the appellant's constitutional right to be tried within a reasonable time had not been violated?
Held (Dickson C.J. and Lamer and Wilson JJ. dissenting): The appeal should be dismissed.
Per Beetz, McIntyre and Chouinard JJ.: Under s. 24(1) of the Charter , anyone whose Charter rights have been violated may apply to a court of competent jurisdiction for an appropriate remedy. Since the Charter is without jurisdictional provisions and directions, an application for s. 24(1) relief in a criminal case should follow the framework and procedures set up by the Criminal Code . The Charter was created to form an important part of our legal system and must fit into the existing scheme.
A magistrate sitting at a preliminary hearing is not a court of competent jurisdiction within the meaning of s. 24 . The limited jurisdiction conferred on him in Part XV of the Code does not permit him to hear and determine the question of whether or not a Charter right has been infringed or denied. He has also no jurisdiction to exclude evidence under s. 24(2) . Exclusion of evidence under that section is a remedy, its application being limited to proceedings under s. 24(1) .
The courts of criminal jurisdiction, as defined in s. 2 of the Code, and the summary conviction courts will be courts of competent jurisdiction where they have jurisdiction conferred by statute over the offences and persons and have the power to make the order sought. The remedies granted by these courts must remain within the ambit of criminal powers. There will be no jurisdiction in these courts, however, where prerogative relief is sought, or where a claim for relief, if granted, would involve interference in proceedings before another court.
The provincial superior court will always be a court of competent jurisdiction under s. 24(1) of the Charter at first instance, that is to say, in cases where the issue arises in proceedings before it. The superior court will of course continue to have jurisdiction as a reviewing court where prerogative claims are made or advanced.
When it is advisable to move for relief before trial under s. 24(1) of the Charter , the pre‑trial motion and its near relative, the preliminary motion or preliminary objection may be employed once an indictment has been preferred.
The grant or denial of Charter relief is appealable as a question of law under the Code. Interlocutory appeals in respect of refusals or grants of Charter remedies under s. 24(1) are not available, however, because they are not authorized in the Code.
The infringement of a Charter right does not of itself give rise to jurisdictional error and there is no reason to characterize some Charter violations as jurisdictional and others as not. When a Charter right is violated, s. 24(1) authorizes the court to grant an appropriate remedy. It neither excludes the court from further participation in the matter nor specifies the remedy. The remedy will vary with the circumstances.
While appellant's motion included a claim for non‑prerogative relief under the Charter , the appeal under s. 719 of the Criminal Code applied only to the prerogative portion of the application. Here, since the preliminary hearing magistrate had no jurisdiction to grant s. 24(1) relief, he did not exceed his jurisdiction. Consequently, the superior court judge's dismissal of the claim for prohibition and certiorari is sustainable and this appeal must be dismissed.
Per La Forest J.: A preliminary hearing magistrate is not a "court of competent jurisdiction", within the meaning of s. 24(1) of the Charter , for determining whether an accused's right "to be tried within a reasonable time" has been violated. The task of the preliminary hearing magistrate under the Criminal Code is limited and there is no warrant in the Charter for extending it. He has also no jurisdiction to exclude evidence under s. 24(2) . While this power seems similar to the magistrate's duty regarding admissibility of evidence, what is involved is the granting of a remedy under s. 24(2) .
There must be at all times a court of competent jurisdiction to provide and enforce a remedy when needed, and this remedy should, in general, be accorded within the normal procedural context in which an issue arises. While the trial court will ordinarily be the appropriate court to grant a remedy under s. 24(1) , where such a court has not yet been set at the time when a remedy is required, or where a court is an inappropriate forum to seek a remedy because it is itself implicated in the breach of a constitutional right, the competent court must be the superior court of the province in the exercise of its inherent jurisdiction. This jurisdiction should only be exercised when it is necessary to give an appropriate remedy and where there is no other court in a position to do so. On a s. 24(1) application for a remedy against unreasonable delay, a superior court judge should generally confine his jurisdiction to attempting to prevent existing causes for delay and ongoing prejudice to an accused and should refrain from attempting to remedy past delays. The trial judge will be in a better position to deal with those delays when the case comes before him and to accord such remedies as can reasonably be afforded under criminal law jurisdiction.
From committal onwards, it is doubtful that one can rely on pre‑trial motions to a judge other than a superior court judge to give effect to Charter remedies. The existing remedies by way of pre‑trial motion are grounded in specific statutory powers. Superior court judges are the only judges with the inherent jurisdiction to grant other remedies.
The violation of an accused's right to be tried within a reasonable time neither gives rise to a jurisdictional issue nor necessarily results in a stay of proceedings. To categorize unreasonable delay as jurisdictional and to make a stay the only possible judicial response is inconsistent with the text of s. 24(1) which provides for such remedy as may be appropriate and just in the circumstances. In many cases, the most obvious remedy for delay would be to expedite the proceedings. The draconian remedy of a stay should be reserved for the more compelling cases.
In the case at bar, the superior court judge was the only court competent to grant a Charter remedy. Since neither the Charter nor the Criminal Code makes any provision for appeal for such an application, the matter should be returned to the preliminary hearing judge and the question of unreasonable delay should ultimately be dealt with by the trial judge if the accused is committed for trial.
Per Dickson C.J. and Lamer J., dissenting: A court of competent jurisdiction in an extant case is a court that has jurisdiction over the person and the subject matter, as well as jurisdiction to order, under the criminal or penal law, the remedy sought pursuant to the Charter . Generally, the court of competent jurisdiction is the trial court, and that court enjoys the full panoply of criminal law remedial powers. A judge presiding at a preliminary inquiry, therefore, is not a court of competent jurisdiction for the purpose of granting a remedy under s. 24(1) . He is, nevertheless, a court of competent jurisdiction to determine under s. 24(1) whether a violation has occurred for the purpose of excluding evidence under s. 24(2) . The sole purpose of a judge's conducting a preliminary hearing is to determine whether there is sufficient evidence to put the accused on trial. There is no reason why the power to exclude probative evidence for policy reasons cannot equally be exercised under s. 24(2) of the Charter .
An accused alleging a s. 11 (b) violation must be heard, as soon as possible under s. 24(1) , by a judge of the court where his trial is to be held. To ensure a prompt, just and effective remedy, the trial court should be ready to grant an appropriate remedy for a s. 11 (b) violation as soon as the accused is entitled to it and falls within its jurisdiction. This can be done through a system of pre‑trial hearings. The superior court, while it has concurrent original jurisdiction to hear a s. 24(1) application, will usually exercise its discretion to decline jurisdiction and leave the dispensation of Charter remedies to the normal trial process and its appeal system when there is a trial court competent to award just and appropriate relief. When a violation of s. 11 (b) is complete at any stage prior to committal, the accused will properly seek his remedy under s. 24(1) from the superior court.
The violation of an accused's right under s. 11 (b) is jurisdictional in nature. A person charged must be tried within a reasonable time, beyond which, no court has jurisdiction to try that person. When, in an inferior court, a jurisdictional issue arises which also constitutes a Charter violation, a person may seek relief in the superior court through an application under s. 24(1) , the prerogative writs, or both. Such an application is, for remedial purposes, to be considered an application under s. 24(1) , and, for appeal purposes under s. 719 of the Code, to be considered an application for the issuance of a writ, and, upon such appeal, all remedies are open to review. This is an exception to the general rule that there is no appeal from an interlocutory decision in criminal matters except where the decision has the effect of terminating the proceedings, such as, for example, the entering of a stay of proceedings.
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 . In the context of s. 11 (b), however, the concept of security of the person is not restricted to physical integrity; rather, it encompasses protection against overlong subjection to the vexations and vicissitudes of a pending criminal accusation. Section 11 (b) is to limit the impact of various forms of prejudice to the accused‑‑who is presumed innocent‑‑by circumscribing the time period within which they may occur.
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 impairment of the accused's interests, 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.
The time frame to be considered in computing trial within a reasonable time only runs from the moment a person is charged. Prior to the charge, the individual is not normally subject to restraint and does not stand accused before the community of committing a crime. Thus, those aspects of the liberty and security of the person protected by s. 11 (b) are not normally placed in jeopardy prior to the institution of judicial proceedings against the individual. Generally, a person is charged under s. 11 (b), as of (a) the service of a summons or the execution of a warrant pursuant to the laying of an information under s. 455.3 of the Criminal Code ; or (b) the issuance of an appearance notice under s. 451 of the Code or release from custody under ss. 452 or 453 of the Code; or (c) the arrest, in the case of all other arrested persons not covered by (a) or (b). Finally, the reasonableness test will remain essentially the same for both pre‑Charter and post‑Charter delay.
Section 24 remedies apply to contraventions of Charter rights taking place in a proceeding being carried on after the Charter 's proclamation, even though that proceeding was instituted before its enactment.
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. In the case at bar, the ten month period of inaction due to negligence on the part of the Crown renders the overall period to bring this man to trial unreasonable. The proceedings before the trial judge should be stayed.
Per Wilson J., dissenting: When a violation of s. 11 (b) is alleged, the accused must demonstrate that he has suffered an impairment of his liberty and security interests, not as a result of the Crown's having charged him, but as a result of the Crown's failure to bring him to trial within a reasonable time. The point at which the delay becomes unreasonable and unconstitutional is the point at which the accused's right under s. 11 (b) is violated. All that precedes that point must be accepted as inherent in the nature of the process.
Although the accused's right to a fair trial is protected by s. 11 (d) of the Charter , one of the relevant considerations in deciding whether or not a delay is unreasonable under s. 11 (b) is whether the accused's ability to make full answer and defence to the charge has been impaired by it. The right to make full answer and defence is a cornerstone of the justice system and a delay which has the effect of eroding it cannot be considered reasonable. Hence this may provide an alternate basis of violation under s. 11 (b).
Cases Cited
By McIntyre J.
R. v. Morgentaler (1984), 41 C.R. (3d) 262; Re Bird and Peebles and The Queen (1984), 12 C.C.C. (3d) 523, considered; Re Laurendeau and The Queen (1983), 9 C.C.C. (3d) 206; Re Ritter and The Queen (1984), 11 C.C.C. (3d) 123; In re Storgoff, [1945] S.C.R. 526; Re Turangan and Chui and The Queen (1976), 32 C.C.C. (2d) 254n, referred to.
By La Forest J.
Ashby v. White (1703), 2 Ld. Raym. 938, 92 E.R. 126; R. v. Richardson (1984), 56 N.B.R. (2d) 172; Barker v. Wingo, 407 U.S. 514 (1972); Strunk v. United States, 412 U.S. 434 (1973); United States v. Ewell, 383 U.S. 116 (1966), referred to.
By Lamer J. (dissenting)
Re Siegel and The Queen (1982), 1 C.C.C. (3d) 253; Re Potma and The Queen (1982), 67 C.C.C. (2d) 19 (Ont. H.C.), aff'd (1983), 2 C.C.C. (3d) 383 (Ont. C.A.); R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, aff'g (1983), 9 C.C.C. (3d) 310 (Alta. C.A.); Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66; R. v. Belton (1982), 3 C.C.C. (3d) 427; Blackwoods Beverages Ltd. v. R., [1985] 2 W.W.R. 159; R. v. Cranston (1983), 55 N.S.R. (2d) 376; Canadian Newspapers Co. v. Attorney‑General for Canada (1985), 49 O.R. (2d) 557; Re Kendall and The Queen; Re McCaffery and The Queen (1982), 2 C.C.C. (3d) 224; R. v. Cameron (1982), 3 C.C.C. (3d) 496; Re Anson and The Queen (1983), 146 D.L.R. (3d) 661; Re Laurendeau and The Queen (1983), 9 C.C.C. (3d) 206; ACL Canada Inc. v. Hunter (1983), 8 C.C.C. (3d) 190; R. v. Crate (1983), 7 C.C.C. (3d) 127; R. v. Ritter, [1984] 2 W.W.R. 623; Re Bird and Peebles and The Queen (1984), 12 C.C.C. (3d) 523; R. v. Petrovic (1984), 47 O.R. (2d) 97; R. v. Kohler (1984), 5 O.A.C. 317; R. v. Morgentaler (1984), 41 C.R. (3d) 262; Re Genaille and The Queen (1983), 6 C.C.C. (3d) 440; R. and Thornton v. Century Helicop‑ ters Inc. (1983), 51 A.R. 395; Re Bank of Nova Scotia (1983), 10 W.C.B. 429; R. L. Crain Inc. v. Couture (1983), 6 D.L.R. (4th) 478; R. v. Erickson, [1984] 5 W.W.R. 577; R. v. Red Hot Video Ltd. (1983), 6 C.C.C. (3d) 331; Re Service Employees’ International Union, Local 204 and Broadway Manor Nursing Home (1983), 44 O.R. (2d) 392; Re Rahey and The Queen (1984), 13 C.C.C. (3d) 297 (N.S.C.A.) rev'g (1983), 9 C.C.C. (3d) 385 (N.S.S.C.); In re Gittens, [1983] 1 F.C. 152; R. v. M. (1982), 70 C.C.C. (2d) 123; Re Koumoudouros and Municipality of Metropolitan Toronto (1982), 67 C.C.C. (2d) 193; Re Regina and Brooks (1982), 1 C.C.C. (3d) 506; Re Uba and The Queen (1983), 5 C.C.C. (3d) 529; Re Legal Services Society and Brahan (1983), 5 C.C.C. (3d) 404; Re Conroy and The Queen (1983), 5 C.C.C. (3d) 501; Re Mitchell and The Queen (1983), 6 C.C.C. (3d) 193; R. v. Tso Tung Quan (1984), 9 C.R.R. 375; Re Regina and Henyu (1984), 11 C.C.C. (3d) 404; Re Hussey and Attorney‑General for Ontario (1984), 13 C.C.C. (3d) 81; Re Pattyson and The Queen (1984), 13 C.C.C. (3d) 477; R. v. Germain (1984), 53 A.R. 264; R. v. Wilson (1982), 37 A.R. 170; R. v. Dezwirek (1983), 4 C.C.C. (3d) 69; R. v. Baker (1983), 10 W.C.B. 10; Re Regina and Thompson (1983), 8 C.C.C. (3d) 127; R. v. Sensenstein (1983), 2 C.R.R. 296; Re Lamberti and Didkowski (1983), 26 Sask. R. 213; Re Regina and Morrison (1984), 47 O.R. 185; Re Bank of Nova Scotia and The Queen (1983), 7 C.C.C. (3d) 165; R. v. Coleman (1982), 9 W.C.B. 232; R. v. Kramer (1982), 10 W.C.B. 452; R. v. Bank of Nova Scotia (1982), 10 W.C.B. 451; R. v. Vermette (No. 4) (1982), 1 C.C.C. (3d) 477; R. v. S. B., [1983] 1 W.W.R. 512; R. v. Burns (1982), 2 C.C.C. (3d) 283; Re Global Communications Ltd. and Attorney‑General of Canada (1983), 5 C.C.C. (3d) 346; Board v. Board, [1919] A.C. 956; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Re Krakowski and The Queen (1983), 4 C.C.C. (3d) 188; Antares Shipping Corp. v. The Ship "Capricorn", [1977] 2 S.C.R. 422; Southern Pacific Co. v. M. Botner & Sons Inc., Canadian Javelin; Canadian Javelin Ltd. (Dans l'affaire de): Plam c. Sparling, [1979] C.S. 465; R. v. Jewitt, [1985] 2 S.C.R. 128; Government of the Republic of Italy v. Piperno, [1982] 1 S.C.R. 320; Bolduc v. Attorney General of Quebec, [1982] 1 S.C.R. 573; Rourke v. The Queen, [1978] 1 S.C.R. 1021, aff'g (1975), 25 C.C.C. (2d) 555; Re Regina and Beason (1983), 7 C.C.C. (3d) 20; R. v. Heaslip (1983), 36 C.R. (3d) 309; Belyea v. The King, [1932] S.C.R. 279; R. v. Antoine (1983), 5 C.C.C. (3d) 97; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Barker v. Wingo, 407 U.S. 514 (1972); 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); R. v. Dennis, Kubin and Frank (1984), 14 D.L.R. (4th) 205; R. v. Perry (1984), 14 C.C.C. (3d) 5; Re Kott and The Queen (1983), 7 C.C.C. (3d) 317; United States v. MacDonald, 456 U.S. 1 (1982); Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; Carnley v. Cochran, 369 U.S. 506 (1962); Eur. Court H. R., Wemhoff case, judgment of 27 June 1968, Series A No. 7; State v. Fasket, 5 Rich. (39 SCL) 255 (1851); Taylor v. United States, 238 F.2d 259 (1956); United States v. Provoo, 17 F.R.D. 183 (1955 D.C.Md.), aff'd 350 U.S. 857 (1955); United States v. Chase, 135 F. Supp. 230 (1955); Edwards v. Attorney‑General for Canada, [1930] A.C. 124; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; R. v. Dahlem (1983), 25 Sask. R. 10; R. v. H. W. Corkum Construction Co. (1983), 57 N.S.R. (2d) 241; R. v. Belcourt (1982), 69 C.C.C. (2d) 286; R. v. Boron (1983), 36 C.R. (3d) 329; R. v. Lefort (1984), 12 C.C.C. (3d) 332; Re Regina and Carter (1983), 9 C.C.C. (3d) 173; R. v. Young (1984), 13 C.C.C. (3d) 1; Attorney General of British Columbia v. Craig Prov. J. (1983), 36 C.R. (3d) 346; R. v. Chabot, [1980] 2 S.C.R. 985; R. v. Therens, [1985] 1 S.C.R. 613; Eur. Court H. R., Deweer case, judgment of 27 February 1980, Series A No. 35; Strunk v. United States, 412 U.S. 434 (1973).
Statutes and Regulations Cited
California Penal Code § 1382 (West 1985).
Canadian Charter of Rights and Freedoms, ss. 7 , 8 , 11 (b), (d), (e), (h), 24 , 26 .
Colorado Criminal Code, Colo. Rev. Stat. § 18‑1‑405 (1973).
Criminal Code, R.S.C. 1970, c. C‑34 as amended, ss. 2 "court of criminal jurisdiction", "superior court of criminal jurisdiction", 363, 426, 451, 452, 453, 455.3, 457.7, 459, 465, 468, 475, 510, 516, 520(3), 529, 602, 603, 618, 619, 620, 719, 720 "summary conviction court", 732, 732.1.
Criminal Code , 18 U.S.C. § 3161 (c)(1) (1982).
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (1950), art. 5(3).
Illinois Code of Criminal Procedure, Ill. Ann. Stat. ch. 38, § 103‑5 (Smith‑Hurd 1980).
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966), art. 2(3), 9(3).
Michigan Code of Criminal Procedure, Mich. Stat. Ann. § 28.978 (Callaghan 1985).
Pennsylvania Rules of Criminal Procedure, Rule 1100(a)(2), 42 Pa. Cons. Stat. Ann. (Purdon 1985).
South Carolina Code of Criminal Procedure, S.C. Code Ann. § 17‑23‑90 (Law Co‑op. 1985).
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 8 .
Authors Cited
Amsterdam, A. G. "Speedy Criminal Trial: Rights and Remedies," 27 Stan. L. Rev. 525 (1975).
Dicey, A. V. The Law of the Constitution, 10th ed., London, MacMillan & Co., 1959.
Ewaschuk, E. G. "The Charter : An Overview and Remedies" (1982), 26 C.R. (3d) 54.
Garton G. "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.
Gold, A. D. Annual Review of Criminal Law, Toronto, Carswells, 1982.
Hogg, P. W. Canada Act 1982 Annotated, Toronto, Carswells, 1982.
Levy, J. C. "The Invocation of Remedies Under the Charter of Rights and Freedoms: Some Procedural Considerations" (1983), 13 Man. L.J. 523.
Manning, M. Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982, Toronto, Emond‑Montgomery Ltd., 1983.
Note. "The Lagging Right to a Speedy Trial," 51 Va. L. Rev. 1587 (1965).
Richards J. G. and G. J. Smith. "Applying the Charter " (1983), 4 Advocates’ Q. 129.
Salhany, R. E. Canadian Criminal Procedure, 4th ed., Aurora, Canada Law Book Inc., 1984.
Uviller, H. R. "Barker v. Wingo: Speedy Trial Gets a Fast Shuffle," 72 Colum. L. Rev. 1376 (1972).
APPEAL from a judgment of the Ontario Court of Appeal (1983), 7 C.C.C. (3d) 573, 6 C.R.R. 88, 2 D.L.R. (4th) 576, 43 O.R. (2d) 631, dismissing appellant's appeal from a judgment of Osborne J. (1983), 2 C.C.C. (3d) 444, 3 C.R.R. 63, 144 D.L.R. (3d) 422, 40 O.R. (2d) 112, dismissing appellant's applications for a stay of proceedings. Appeal dismissed, Dickson C.J. and Lamer and Wilson JJ. dissenting.
Julius Melnitzer and D. Fletcher Dawson, for the appellant.
David H. Doherty, Q.C., and M. S. T. Wine, for the respondent.
The reasons of Dickson C.J. and Lamer J. were delivered by
1. Lamer J. (dissenting)‑‑One should be forewarned that the facts in this case are intricate and, to some extent, uncertain; that the proceedings are multiple and the fact that they vary from one level of court to the other further complicates matters; that these difficulties are compounded by the fact that we are addressing the insertion into the common law system of remedies and courts of a new system of rights and remedies hitherto foreign to the common law approach.
2. At his preliminary inquiry, the accused‑appellant brought a motion to stay the proceedings, alleging abuse of process under the common law and a violation of his rights under s. 11 (b) of the Canadian Charter of Rights and Freedoms , specifically, that he had been denied his right to be tried within a reasonable time.
3. The appellant's motion was denied and his challenges of that decision were unsuccessful. The appellant was granted leave to appeal to this Court at large and suggests that the issues in this case are as follows:
IIs a judge or justice presiding at a preliminary inquiry a court of competent jurisdiction for the purposes of an application under section 24(1) of the Charter where the application alleges a breach of section 11 (b) rights?
IIIs a judge of the Supreme Court of Ontario a court of competent jurisdiction for the purposes of an originating application under section 24(1) of the Charter where the application alleges a breach of section 11 (b) rights?
IIIAssuming that a judge presiding at a preliminary hearing is a court of competent jurisdiction, is the decision of the inferior court susceptible to review either by prerogative writ or by independent application to a superior court pursuant to section 24(1) of the Charter ?
IVDid the Court of Appeal for Ontario err in concluding that the appellant's constitutional right to be tried within a reasonable time as guaranteed by section 11 (b) of the Canadian Charter of Rights and Freedoms had not been violated?
4. The first three issues raise basic procedural questions concerning the mechanisms for obtaining Charter relief, review and appeal of determinations under s. 24(1) of the Charter . They will, in fact, determine which of the appellant's applications are properly before this Court and whether we have jurisdiction to consider the substantive question asked of us by issue no. 4.
5. As I will be addressing issue no. 4 in the latter part of this opinion, a narrative of the facts and an analysis of the judgments below as they relate to the question of whether the appellant's rights have been violated will be made at that time.
The Facts Relevant to the Jurisdictional Issues
6. On March 30, 1977, an information was sworn in London, Ontario, charging the appellant with an armed robbery allegedly committed six days earlier. The appellant's first appearance in court with respect to that information was on September 25, 1981. He elected trial by judge and jury and the preliminary inquiry commenced on May 18, 1982, before His Honour Judge Baker of the Ontario Provincial Court (Criminal Division). Reasons for judgment were delivered orally on July 16, 1982, now reported at 2 C.R.R. 300. The Charter had come into force on April 17, 1982.
7. At the outset of his preliminary inquiry Mills presented a motion to Judge Baker seeking a stay of proceedings for abuse of process under the common law and for violation of his rights under s. 11 (b) of the Charter . Section 11 (b) states:
11. Any person charged with an offence has the right
11. Tout inculpé a le droit:
. . .
. . .
(b) to be tried within a reasonable time;
b) d’être jugé dans un délai raisonnable;
Both grounds failed and the motion was denied.
8. With respect to the claim based on abuse of process, Judge Baker found that a "Provincial Judge lacked jurisdiction at the preliminary hearing stage to stay the proceedings for abuse of process" (p. 306). Notwithstanding that finding, he dealt with the common law application and found that, absent evidence "of wilful misconduct or oblique motives ... or of any intention to prejudice, harass or to submit this accused to oppressive treatment" (p. 308), there could be no abuse of process and accordingly dismissed the application grounded on the common law.
9. Dealing with the application under the Charter , he found that, under s. 24 of the Charter , a provincial court judge presiding at a preliminary inquiry is a "court of competent jurisdiction to deal with this matter" (p. 308). Section 24 provides:
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.
24. (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s’adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
(2) Lorsque, dans une instance visée au paragraphe (1), le tribunal a conclu que des éléments de preuve ont été obtenus dans des conditions qui portent atteinte aux droits ou libertés garantis par la présente charte, ces éléments de preuve sont écartés s’il est établi, eu égard aux circonstances, que leur utilisation est susceptible de déconsidérer l’administration de la justice.
10. The application was then dismissed, the only ground stated being that s. 24 had only a prospective effect.
11. The appellant moved to challenge that ruling in the Ontario Supreme Court, invoking both its original and supervisory jurisdictions. The appellant's motions in that Court failed (1983), 3 C.R.R. 63, 2 C.C.C. (3d) 444, 144 D.L.R. (3d) 422, 40 O.R. (2d) 112, as did his appeal in the Ontario Court of Appeal (1983), 6 C.R.R. 88, 7 C.C.C. (3d) 573, 2 D.L.R. (4th) 576, 43 O.R. (2d) 631.
12. From a scrutiny of the proceedings and of the judgments below, my understanding of the events that took place subsequent to Judge Baker's decision is as follows:
13. Mills applied to the Supreme Court of Ontario's motions court in two capacities:
1‑‑As a Superior Court of general jurisdiction with an application for a remedy under the Charter in a case being processed in a lower court;
2‑‑As a Superior Court in its supervisory capacity over decisions of inferior courts through the prerogative writs (certiorari and prohibition), alleging that Judge Baker had committed a jurisdictional error by:
(a) his disposition of the motion to stay under the common law for abuse of process: first, by finding that he did not have jurisdiction to stay proceedings for abuse of process; second, by finding that, in any event, there had been no abuse of process, and,
(b) finding no violation of the accused's Charter rights under s. 11 (b) on the grounds that s. 24 did not apply to a pre‑Charter charge.
14. In his judgment, Osborne J. commented on the nature of the proceedings and summarized the applicant's position as follows ((1983), 2 C.C.C. (3d) 444, at p. 450):
The applicant's position, as carefully and fully outlined by Mr. Melnitzer [Mr. Melnitzer is the appellant's Attorney], is that in the face of a violation of a Charter right to trial within a reasonable time, the provincial court judge has lost jurisdiction over the accused in such a way as to entitle the accused to the relief sought before me. Mr. Melnitzer distinguished this route to jurisdiction from a simple appeal from Judge Baker's decision on the Charter issue.
15. Osborne J. then referred with approval to the Supreme Court of Ontario judgments by O'Driscoll J. in Re Siegel and The Queen (1982), 1 C.C.C. (3d) 253, and of Eberle J. in Re Potma and The Queen (1982), 67 C.C.C. (2d) 19, appeal to Ontario Court of Appeal was since dismissed: (1983), 2 C.C.C. (3d) 383. These cases were concerned with applications under s. 24(2) of the Charter to exclude evidence. In Osborne J.'s view, those judgments, and more particularly O'Driscoll J.'s decision in Siegel, supra, held that "on an application under s. 24 to exclude evidence a `court of competent jurisdiction' refers to either the trial judge or the judge sitting at the preliminary hearing".
16. Of the motions, he said, at p. 451:
It is therefore difficult to see how a judge in motions court can have jurisdiction to entertain a motion such as this, unless the application can reasonably be characterized as being in the nature of an application for a prerogative writ. This application can be so characterized, at least in so far as the Charter issue it raises is concerned. It is not an appeal from Judge Baker's abuse of process and Charter decision. In most cases applications for Charter relief, under s. 24 , arising out of alleged violations of Charter rights should be heard by the trial judge or the judge presiding at the preliminary inquiry.
17. He then exercised his supervisory jurisdiction and considered whether prerogative writs should issue.
18. As regards the Charter application, he agreed with the provincial court judge that when such a judge is sitting at a preliminary inquiry, he is a court of competent jurisdiction to deal with an application under s. 24(1) for a remedy, subsequent to a violation of an accused's right under s. 11 (b). He also agreed, though only in the result, with the finding that there had been no violation. I should mention that, while both judges found a preliminary inquiry judge to be "a court of competent jurisdiction" under s. 24 , no mention was made by either judge as to any limits as regards the remedies such preliminary inquiry judges could give the accused under the Charter , including whether a stay could be entered by such a judge.
19. When considering the disposition by Judge Baker of the common law application, Osborne J. found that Judge Baker had erred as regards his own jurisdiction and said, at p. 461, "that a provincial court judge does have jurisdiction to deal with abuse of process even while presiding over a preliminary inquiry", but agreed with him that there in fact had not been an abuse of process. "The delay attributable to the authorities", he said, "is the product of negligence not vexatiousness". Osborne J. did not say whether a stay was part of the arsenal of a provincial court judge sitting at a preliminary inquiry, or whether the judge was limited to discharging the accused. Also, in passing, it is not clear whether Osborne J. was of the view that a justice of the peace holding a preliminary inquiry, under Part XV of the Criminal Code , enjoys the same jurisdiction as a provincial court judge acting in the same capacity.
20. It is clear that Osborne J. was of the view that a supreme court justice sitting in motions court does not have an original jurisdiction under s. 24 when the matter is pending before an inferior court. It can at best be inferred that, due to his failure to refer the matter to another chamber of the Supreme Court of Ontario, he was equally of the view that no chamber of the Supreme Court has, under s. 24 , any jurisdiction when the matter is before another court. As a result of Osborne J.'s comments and review of Judge Baker's findings as regards s. 11 (b) and s. 24(1) of the Charter through the prerogative writ application, one can with certainty conclude that he considered a finding under s. 24(1) , at least one in relation to s. 11 (b), as reviewable under the prerogative writs. One cannot ascertain, at least not with any certainty, whether his assumption of jurisdiction through such writs was the result of his characterization of Charter violations and/or of decisions in relation to such violations as going to jurisdiction, or only to some, one of which being a violation of s. 11 (b). However, one can fairly assume that, had he intended to enlarge the availability of such writs to non‑jurisdictional matters, he would have said so expressly.
21. The matter was then appealed to the Court of Appeal under s. 719 of the Code which authorizes the taking of an appeal in certiorari and prohibition. It would be inaccurate to say that the appellant did not appeal the s. 24 issue. He only made one application to Osborne J. and he appealed Osborne J.'s disposition of that application. However, the s. 719 conduit is narrow and, prior to the Charter , has only allowed the courts of appeal to respond in certiorari or prohibition, and within the traditional remedial powers granted under those writs. The question therefore immediately arises, and was, though somewhat differently raised by the respondent, as to whether by seeking prohibition and then appealing the refusal, the appellant is able to argue in the Court of Appeal and in this Court all matters raised in the application for prohibition in the first instance and then have access to the full panoply of remedial powers granted to a judge under s. 24 .
22. I would answer that question in the affirmative for reasons I will be giving later on supporting the following conclusions. I find that some violations of the Charter go to the jurisdiction of the court in which the case is extant and that a violation of s. 11 (b) is one of them. Indeed if time has elapsed to the point beyond which no trial could be held within a reasonable time, as of then the courts have lost jurisdiction over the accused because the trial process must come to an end. I also find, for reasons elaborated upon later on, that if an application is made to a superior court judge alleging a "jurisdictional" violation, as is a violation to s. 11 (b), whatever be the vehicle chosen, that application is, for remedial purposes, an application under s. 24 , and, for appeal purposes, an application for the issuance of a writ.
23. For these reasons I am of the view that the four issues referred to by the appellant are pro