R. v. Kalanj

R. v. Kalanj
Collection
Supreme Court Judgments
Date
1989-06-22
Report
[1989] 1 SCR 1594
Case number
19792, 19805
Judges
McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
British Columbia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 19792, 19805
Decision Content
R. v. Kalanj, [1989] 1 S.C.R. 1594
Danie Steve Kalanj Appellant
v.
Her Majesty The Queen Respondent
and between
Gerald Joseph Pion Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. kalanj
File Nos: 19792, 19805.
1988: March 28; 1989: June 22.
Present: Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for british columbia
Constitutional law -- Charter of Rights -- Trial within reasonable time -- Pre-charge delay -- Whether pre‑charge delay relevant to determining if an accused's right to be tried within reasonable time has been infringed ‑‑ Meaning of the phrase a "person charged with an offence" in s. 11 (b) of the Canadian Charter of Rights and Freedoms .
Criminal law -- Appeal to the Supreme Court of Canada -- Appeal where acquittal set aside -- Court of Appeal vacating trial judge's order quashing an indictment preferred against the accused -- Whether accused may appeal to the Supreme Court of Canada pursuant to s. 618(2) (a) of the Criminal Code .
Following a police investigation, the appellants were arrested without warrants on May 5, 1982. They were released on the same day and no charges were laid against them until January 14, 1983 when K was charged with theft and P with conspiracy to commit theft. The Crown explained that the time required to prepare its case caused the delay in swearing the information. After the preliminary inquiry, a trial date was fixed for February 4, 1985. At trial, the appellants moved before plea to quash the indictment, on the ground that the delay in bringing the case to trial constituted an infringement of their right to be tried within a reasonable time guaranteed in s. 11 (b) of the Canadian Charter of Rights and Freedoms . The trial judge found that both appellants and their families suffered serious trauma and public embarrassment because of these arrests. He held that while the time from the swearing of the information to the date of trial did not amount to an unreasonable delay, the delay of some eight months between arrest and release and the swearing of the information was unreasonable and he quashed the indictment. On appeal by the Crown, the Court of Appeal held that the trial judge erred in considering the pre‑information delay in deciding whether the appellants' s. 11 (b) Charter right had been infringed. The Court vacated the order quashing the indictment and a trial on the merits was directed. The appellants now purport to appeal to this Court as of right pursuant to s. 618(2) (a) of the Criminal Code .
Held (Lamer and Wilson JJ. dissenting): The appeals should be dismissed.
Per McIntyre, La Forest and L'Heureux‑Dubé JJ.: Section 618(2)(a) of the Code provides an appeal for persons acquitted of an indictable offence whose acquittal has been set aside in the Court of Appeal. The appellants in this case were not acquitted and, on the face of the Criminal Code , there would appear to be no right of appeal. However, if the trial judge had had the benefit of the later decisions of this Court in Mills and Jewitt on this question, it is reasonable to assume that instead of quashing the indictment he would have ordered a judicial stay, which in accordance with Jewitt would have been tantamount to an acquittal, and an appeal would thus have been open under s. 618(2) (a) upon the reversal of the stay in the Court of Appeal. Therefore, in the circumstances of this case, jurisdiction exists for the hearing of these appeals.
Section 11 affords its protection after an accused is charged with an offence. A person is "charged with an offence" within the meaning of that section when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn. It follows that the reckoning of time in considering whether a person has been accorded a trial within a reasonable time under s. 11 (b) will commence with the information or indictment, where no information has been laid, and will continue until the completion of the trial. Pre‑information delay will not be a factor. This construction is supported by the words of the Charter and, as well, upon a consideration of its organization and structure. The specific language of s. 11 should not be ignored and the meaning of the word "charged" should not be twisted in an attempt to extend the operation of the section into the pre‑charge period. Prior to the charge, the rights of the accused are protected by general law and guaranteed by ss. 7 , 8 , 9 and 10 of the Charter . Here, appellants' right to a trial within a reasonable time has not been infringed. The time from the swearing of the information to the date of trial did not amount to an unreasonable delay.
Per Lamer J. (dissenting): The time frame to be considered in computing trial within a reasonable time generally runs only from the moment a person is charged. A person is charged under s. 11 (b) as of, (a) the service of a summons, the execution of a warrant pursuant to the laying of an information under s. 455.3 of the Criminal Code , or as of the moment a person is informed by the authorities of their existence; 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) as of the arrest, in the case of all other arrested persons not covered by (a) or (b). This definition of a "person charged" makes no distinction between an arrest with or without a warrant. In both cases, the person arrested enjoys the protection of s. 11 (b). This definition is also the most consistent with the rationale of s. 11 (b) as the charge from which the "reasonable time" inquiry begins will correspond to the start of the impairment of the accused's interests in the liberty and security of the person. The concept of the security of the person, in the context of s. 11 (b), is not restricted to physical integrity but encompasses protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation".
Applying the definition to these cases, the delay started when the appellants were first arrested and released and the period between the arrest and the laying of the charges should have been computed in determining whether or not they have been tried within reasonable time. There is no doubt that, from the moment of the arrest, the appellants suffered a breach of their liberty as well as a restraint of their security. It is also obvious that that eight‑month period between the arrest and the laying of the charges was in violation of s. 11 (b). The appellants did not consent to the delay and tried to expedite the laying of the charges. The Crown gave no reasonable explanation to justify the delay. On the contrary, its explanation was an admission to the fact that they were not ready to charge and therefore should not have arrested. A stay of proceedings should be ordered.
Per Wilson J. (dissenting): Since s. 11(b) of the Charter is designed to protect the liberty and security interests of the accused, the relevant starting point for the running of time under the section should not be upon the ex parte laying of the information before the justice of the peace but rather when the impact of the criminal process is felt by the accused through the service of process upon him in the form of a summons or notice of appearance or an arrest with or without a warrant. However, the prejudice to the security interests of an accused arising purely from the fact of the imposition of the process upon him should not be considered in assessing the reasonableness of the delay. The prejudice relevant under s. 11 (b) is the prejudice arising from the delay and not the prejudice arising from the imposition of the process. Here, the appellants were prejudiced by the delay between the arrest and the laying of the information and this prejudice can be attributed to the delay and not simply to the imposition of the process. Although an arrest and the subsequent laying of the charges would have affected their broad security interests at any time, the unjustified delay in the bringing of specific charges substantially aggravated that prejudice beyond what is acceptable or inherent in the criminal process itself.
Cases Cited
By McIntyre J.
Referred to: Mills v. The Queen, [1986] 1 S.C.R. 863; Carter v. The Queen, [1986] 1 S.C.R. 981; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Boron (1983), 8 C.C.C. (3d) 25; R. v. Young (1984), 13 C.C.C. (3d) 1; R. v. Belton (1982), 3 C.C.C. (3d) 427; R. v. Heaslip (1983), 9 C.C.C. (3d) 480; Re Kott and The Queen (1983), 7 C.C.C. (3d) 317; R. v. Devji (1985), 19 C.C.C. (3d) 310; Re Gray and The Queen (1982), 70 C.C.C. (2d) 62; R. v. Belcourt (1982), 69 C.C.C. (2d) 286; R. v. Davis (1988), 86 N.S.R. (2d) 284; R. v. Mackintosh (1988), 26 B.C.L.R. (2d) 1; Argentina v. Mellino, [1987] 1 S.C.R. 536; R. v. Chabot, [1980] 2 S.C.R. 985; R. v. Antoine (1983), 5 C.C.C. (3d) 97; Re Garton and Whelan (1984), 14 C.C.C. (3d) 449; R. v. Robins (1844), 1 Cox C.C. 114.
By Lamer J. (dissenting)
Mills v. The Queen, [1986] 1 S.C.R. 863; Carter v. The Queen, [1986] 1 S.C.R. 981; Eur. Court H. R., Deweer case, judgment of 27 February 1980, Series A No. 35; Eur. Court H. R., Eckle case, judgment of 15 July 1982, Series A No. 51; Eur. Court H. R., case of Foti and others, judgment of 10 December 1982, Series A No. 56.
By Wilson J. (dissenting)
Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 448 "accused" [rep. & subs. 2nd Supp., c. 2, s. 5], 451 [idem], 452 [idem], 453 [idem], 455 [idem], 455.1 [ad. idem], 455.3 [ad. idem; am. 1972, c. 13, s. 35(2)], 577(3), 602, 605(1)(a), (c) [ad. 1985, c. 19, s. 137], 618(2)(a) [rep. & subs. 1974‑75‑76, c. 105, s. 18(2)], 723, 724, 737(1).
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, (1950), Art. 6(1).
Authors Cited
Mewett, Alan W. An Introduction to the Criminal Process in Canada. Toronto: Carswells, 1988.
APPEALS from a judgment of the British Columbia Court of Appeal (1986), 26 C.C.C. (3d) 136, allowing the Crown's appeal from a judgment of Selbie Co. Ct. J., allowing appellants' application to quash the indictment. Appeals dismissed, Lamer and Wilson JJ. dissenting.
E. David Crossin, for the appellant Kalanj.
Donald J. Sorochan, for the appellant Pion.
Colin Sweeney and Alexander Budlovsky, for the respondent.
//McIntyre J.//
The judgment of McIntyre, La Forest and L'Heureux-Dubé JJ. was delivered by
MCINTYRE J. -- The general issue on these appeals is whether the rights of the appellants under s. 11 (b) of the Canadian Charter of Rights and Freedoms "to be tried within a reasonable time" have been infringed. More specifically, the question is whether pre-charge delays should be included in the calculation of whether there was an unreasonable delay in bringing the appellants to trial.
The appellants, Kalanj and Pion, were arrested without warrants on May 5, 1982. The police suspected Kalanj of stealing meat from his meatpacker employer and delivering it to Pion, also in the meat packing business, for sale by Pion and a division of the profits. The arrest followed a detailed investigation by the police which commenced in early March of 1982. On March 17, 1982, the police procured a judicial authorization to intercept the private communications of Kalanj and other unknown persons, and proceeded to intercept some sixty-five communications between March 18, 1982 and May 5, 1982. On the basis of information thus acquired, the police obtained and executed search warrants and made the arrests. Following their arrests, the appellants were finger printed and placed in police cells but were released later the same day. They were told not to leave the city and were informed, as well, that charges would be laid and that a summons would issue. The arrests were made at the appellants' places of business; they received wide publicity and there can be no doubt that the appellants suffered grave embarrassment. The trial judge found that prior to being charged, but after arrest and release, both appellants and their families suffered serious trauma and public embarrassment because of these arrests.
On January 14, 1983, some eight months and nineteen days after the arrests and releases, an information was sworn alleging that the appellants had committed the offences of theft and conspiracy to commit theft. This delay in swearing the information was said by the Crown to have been made necessary because of the time required to prepare its case. It was necessary to review a large number of intercepted communications, to identify those which were relevant to the various issues, and to have them transcribed. Much police time, it was said, was consumed in interviewing witnesses whose names became known to the police because of the interceptions, and the matter was not ready for the swearing of the information until January 14, 1983.
The trial did not commence until February of 1985, some two years after the information was sworn. The appellants' first court appearance was on February 18, 1983, the purpose of which was to fix a date for the preliminary hearing. On that date the proceedings were adjourned until March 9, 1983 at the request of counsel for the appellants, who wished to obtain particulars from the Crown. The particulars were supplied on March 30, 1983 and the case was set over until April 13, 1983 to fix a date for the preliminary hearing. The preliminary hearing was set to run from September 6 to September 20, 1983. It was adjourned twice: once at the request of counsel for Kalanj, who was engaged in another trial, and once because of problems caused by a strike of government employees. On April 17, 1984 the preliminary hearing commenced and the appellants were committed for trial upon its conclusion in late April. On May 31, 1984 a trial date was fixed for February 4, 1985.
At trial, the appellants moved before plea to quash the indictment, on the ground that the delay in bringing the case to trial constituted an infringement of their right to be tried within a reasonable time guaranteed in s. 11 (b) of the Charter . The trial judge found that while the time from the swearing of the information to the date of trial did not amount to an unreasonable delay, the delay of some eight months between arrest and release and the swearing of the information was unreasonable. He said:
I have not up to now referred to the period of time between the formal laying of the charges in January of 1983 and the trial in February of 1985. It is my view without reviewing what happened during that period that standing alone and open to many criticisms this period nevertheless in itself does not disclose a degree of unreasonableness so as to justify taking an extreme step such as the quashing of the indictment. My view is otherwise if the period prior to the formal laying of the charge back to the arrests is considered.
He quashed the indictment.
On appeal by the Crown, the Court of Appeal (Craig, Macfarlane and McLachlin JJ.A.) unanimously decided that the trial judge erred in considering the pre-information delay in deciding whether the appellants' s. 11 (b) Charter right had been infringed: (1986), 26 C.C.C. (3d) 136. The order quashing the indictment was vacated and a trial on the merits was directed.
The appellants now purport to appeal to this Court as of right pursuant to s. 618(2) (a) of the Criminal Code , which provides an appeal for persons acquitted of an indictable offence whose acquittal has been set aside in the Court of Appeal. The appellants were not, however, acquitted: the indictment upon which they were to stand trial was quashed. Section 605(1)(c) of the Code permitted the Crown to appeal to the Court of Appeal, but s. 618(2) (a) does not on its terms permit these appeals. Section 602 of the Criminal Code provides that no appeals save those provided for in the Code shall be taken in indictable offences. On the face of the Criminal Code sections, there would then appear to be no right of appeal.
The judgment at trial was released before the judgment of this Court in Mills v. The Queen, [1986] 1 S.C.R. 863. In that case, Lamer J., though dissenting on other grounds, considered that where a s. 11 (b) Charter right had been infringed the appropriate remedy would be a stay of proceedings. In R. v. Jewitt, [1985] 2 S.C.R. 128, this Court held that a stay of proceedings granted at trial was tantamount to an acquittal and therefore subject to appeal by the Crown pursuant to s. 605(1) (a) of the Criminal Code . If the trial judge had had the benefit of the later decisions on this question, it is reasonable to assume that instead of quashing the indictment he would have ordered a judicial stay, which in accordance with Jewitt would have been tantamount to an acquittal, and an appeal would thus have been open under s. 618(2)(a) of the Code upon the reversal of the stay in the Court of Appeal. I am therefore of the view that in the circumstances of this case jurisdiction exists for the hearing of these appeals.
I now turn to the main issue on the appeals. Section 11 (b) of the Charter provides that "Any person charged with an offence has the right ... to be tried within a reasonable time". The section, it will be observed, refers only to those persons who are "charged" with an offence. The question, then, which must be answered is: When is a person "charged with an offence" within the meaning of s. 11 (b)?
This issue was considered by both the trial judge and the Court of Appeal. The trial judge seems to have concluded that "the appellants were only charged for the purposes of the Charter when some justice signed the information in January, 1983". He concluded, however, that the pre-charge delay could be considered in deciding if an accused had been tried within a reasonable time under s. 11 (b). The Court of Appeal, on the other hand, held that s. 11 (b) is specifically and exclusively addressed to the delay between the actual charge, which is the laying of the information, and the date of the trial, and that s. 11 (b) may not be invoked in response to a delay in laying a charge. It was argued before this Court that the Court of Appeal erred in its interpretation of s. 11 (b). Counsel for the appellants submitted that the appellants were charged within the meaning of s. 11 (b) at the time of their arrest and release and that, accordingly, the entire period from May 5, 1982 until the commencement of the trial on February 4, 1985 should be considered in deciding if the trial had taken place within a reasonable time.
The word "charged" or "charge" is not one of fixed or unvarying meaning at law. It may be and is used in a variety of ways to describe a variety of events. A person is clearly charged with an offence when a charge is read out to him in court and he is called upon to plead. Many authorities support this view if authority is necessary: see R. v. Chabot, [1980] 2 S.C.R. 985, and the cases cited therein. A person could be considered in a general or popular sense to be charged with an offence when informed by one in authority that "you will be summoned to court" or upon an arrest when in answer to a demand to know what all this is about an officer replies: "You are arrested for murder". There are many other occasions when in the popular mind a person may be said to be charged for, according to Professor Mewett in An Introduction to the Criminal Process in Canada (1988), the word "charge" has no precise meaning at law but merely means that steps are being taken which in the normal course will lead to a criminal prosecution. However, despite what may be termed the imprecision of the word "charge" or the phrase "a person charged", the courts are faced with the task of developing a meaning of the word as used in s. 11 of the Charter .
In addressing this task, the courts have generally avoided the definite but restricted definition to be found in Chabot, supra, and have generally concluded that a person is charged with an offence within the meaning of s. 11 of the Charter when an information has been sworn which constitutes an initiating step in court proceedings. In R. v. Boron (1983), 8 C.C.C. (3d) 25 (Ont. H.C.), Ewaschuk J. considered what he saw as three possible interpretations of the word "charged", and he concluded, at p. 31, that:
In conclusion, I adopt the more prevalent view that the word "charged" in s. 11 of the Charter refers to the laying of an information, or the preferment of a direct indictment where no information has been laid. In consequence, the time-frame to be considered in computing trial within a reasonable time only runs from the laying of a charge. This general rule may have certain exceptions which I deal with later. Accordingly, the trial judge erred in holding that the Charter guarantees the right of a person to have proceedings promptly instituted against a person charged with an offence.
He had earlier said, at p. 28, referring to the old practice when a peace officer making an arrest would say: "I charge you in the name of the Queen with the murder of John Smith":
However, that interpretation of the word "charged" is somewhat antiquated in light of s. 10 (a) of the Charter which requires a peace officer on arrest or detention to inform the person arrested or detained of the reason (or reasons) therefor. By contrast, the Crown prosecutor is assumed to be the governmental official who decides the appropriate charge....
He also rejected the idea that one is charged only when one appears in court to answer the charge, in other words, the Chabot approach. On this basis, Ewaschuk J. concluded that the time period, which under s. 11 (b) of the Charter must be reasonable, is the period commencing with the swearing of the information or the preferring of a direct indictment when an information has not been sworn and concluding with the trial. In this approach, pre-information delay would not be a factor, but it will be observed that he allowed for an exception which in some cases would permit consideration of pre-charge time.
The proposition that an accused person is charged only when the information is sworn has been accepted in a number of appellate court decisions. In R. v. Young (1984), 13 C.C.C. (3d) 1, for example, the Ontario Court of Appeal referred to the date of the information as being "the time that the respondent was charged". Dubin J.A., speaking for the court, said that in that case there was no delay between the time of the charge, by which he was referring to the time of the swearing of the information, and the time of the trial, and therefore, s. 11 (b) had no application. See also: R. v. Belton (1982), 3 C.C.C. (3d) 427 (Man.); R. v. Heaslip (1983), 9 C.C.C. (3d) 480 (Ont.); Re Kott and The Queen (1983), 7 C.C.C. (3d) 317 (Que.); and R. v. Devji (1985), 19 C.C.C. (3d) 310 (B.C.) This approach has also been adopted at the trial level: Re Gray and The Queen (1982), 70 C.C.C. (2d) 62 (Sask.); R. v. Belcourt (1982), 69 C.C.C. (2d) 286 (B.C.); and R. v. Davis (1988), 86 N.S.R. (2d) 284. I would note here that the Criminal Code in s. 455 , for indictable offences, and in ss. 723 and 724 , for summary conviction offences, speaks of the laying of an information and requires, as well, that an information be sworn. For the purposes of this judgment, the terms "laying an information" and "swearing an information", having the same significance, are used interchangeably.
As has been said, the argument which the appellants have raised on this appeal is that they were charged within the meaning of s. 11 (b) on the date of the arrest, which was some eight months prior to the laying of the information. The appellants submit that this Court's decisions in Mills v. The Queen, supra, and Carter v. The Queen, [1986] 1 S.C.R. 981, support this proposition. Briefly, the argument is that Lamer J.'s dissent in Mills (concurred in by Dickson C.J.) which extended the meaning of "charged" was adopted by the majority in Carter. In Mills, Lamer J. expressed the view that the meaning of "charged" should be one which is consistent with the aim and purpose of the section. In his view, the reasonable time under s. 11 (b) must be computed from the start of the impairment of the accused's interest in the liberty and security of the person. He therefore considered that a person would be charged upon:
(a) the service of a summons, the execution of a warrant pursuant to the laying of an information under s. 455.3 of the Criminal Code , or as of the moment a person is informed by the authorities of their existence; 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) as of the arrest, in the case of all other arrested persons not covered by (a) or (b).
(Mills, supra, at p. 946.)
This view did not attract the support or agreement of a majority of the Court. On the same day that the judgment in Mills was released the Court released the judgment in Carter v. The Queen. The argument of the appellants is that in Carter Lamer J. applied the definition of "charge" which he set out in Mills. He said, at p. 985:
The accused in this case was "charged" as of the service of a summons pursuant to the laying of the information, which means that he was charged on January 28, 1983.
As I have indicated in Mills v. The Queen, [1986] 1 S.C.R. 863, which has been handed down this same day, the time frame to be considered in computing trial within a reasonable time generally runs only from the moment a person is charged. In passing, I might add that I say "generally" because there might be exceptional circumstances under which the time might run prior to the actual charge on which the accused will be tried. As an example, if the Crown withdraws the charge to substitute a different one but for the same transaction, the computation of time might well commence as of the first charge. This is not in issue here and reference to this situation is only illustrative of my resort to the word "generally". Consequently, the period running from April 3, 1980 to January 28, 1983, should not have been taken into consideration when assessing the reasonableness of the delay under s. 11 (b).
And later he said, at p. 986:
The only period of time which may properly be considered in assessing whether or not a violation of s. 11 (b) has occurred is that period running from January 28, 1983 to May 6, 1983, the date on which the inquiry into the reasonableness of the delay began. Only 3 1/2 months had elapsed and the applicant has not suggested that this time span was in violation of s. 11 (b). It is obvious that the applicant was relying on the pre-charge delay; in any event, most of the post-charge delay was with the accused's consent, indeed a good part of it was at his own request.
The appellants submit that since Lamer J.'s reasons in Carter were concurred in by seven judges of this Court, the majority of the Court adopted the extended definition of "charged" advanced by Lamer J. in Mills.
A similar argument was considered by the British Columbia Court of Appeal in R. v. Mackintosh (1988), 26 B.C.L.R. (2d) 1. Macfarlane J.A., for the majority, considered the minority views of Lamer J. in Mills and the majority judgments in Carter, and stated at p. 11:
It is plain that a person is "charged" within the meaning of s. 11 , when a formal charge (information or indictment) is laid, and the accused is served with process. That was so in Carter. Lamer J. said (at p. 985) of Carter:
The accused in this case was "charged" as of the service of a summons pursuant to the laying of the information, which means that he was charged on January 28, 1983.
On this basis, he concluded, at p. 11, that:
The majority judgment in Carter is more confined in its treatment of the definition of the word "charged" than it is in the minority judgment of Mr. Justice Lamer in Mills. I am unable to construe the language of the majority judgment in Carter as incorporating all of the minority views of Mr. Justice Lamer in Mills.
However, after determining that a person is "charged" as of the laying of an information, per this Court's decision in Carter, Macfarlane J.A. then asked: At what other time is a person "charged"? On the basis of the language used by the majority in Carter, he concluded that a person may be charged, at "the moment an actual charge is laid, or in exceptional circumstances on some earlier date". In other words, in Macfarlane J.A.'s view, the word "charged" should be given a flexible definition, one which would vary depending on the circumstances of the particular case. Under this approach, "charged" in some situations may mean the date the information is sworn but in others it would refer to an earlier date.
With all deference to contrary opinions, I am of the view that it cannot be said that this Court in Carter adopted the minority view in Mills, on the question of the extension of the meaning of the word "charged" developed by Lamer J. In Carter, Lamer J., with the agreement of seven judges who heard the case, clearly stated that an accused was charged upon the swearing of the information, and Carter supports the view that the pre-charge delay is not a factor for consideration under s. 11 (b). To this extent, then, I am in agreement with the above quoted comments of Macfarlane J.A. in Mackintosh but, with respect, I do not agree with the majority in that case that "charged" has a flexible meaning varying with the circumstances of the case. I would therefore hold that a person is "charged with an offence" within the meaning of s. 11 of the Charter when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn. It would follow, then, that the reckoning of time in considering whether a person has been accorded a trial within a reasonable time under s. 11 (b) will commence with the information or indictment, where no information has been laid, and will continue until the completion of the trial: see R. v. Rahey, [1987] 1 S.C.R. 588, at p. 633, where La Forest J. said:
The question of delay must be open to assessment at all stages of a criminal proceeding, from the laying of the charge to the rendering of judgment at trial. [Emphasis added.]
and see, as well, Argentina v. Mellino, [1987] 1 S.C.R. 536, at p. 548, where the same judge said:
It gives a Charter remedy for delay when a prosecution has been initiated. [Emphasis added.]
Pre-information delay will not be a factor.
This construction is supported by the words of the Charter and, as well, upon a consideration of its organization and structure. Section 11 is one of eight sections grouped under the heading of "Legal Rights". Section 7 guarantees the general "right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". This section applies at all stages of the investigatory and judicial process. Sections 8 and 9 afford guarantees of rights of particular importance in the investigatory or pre-charge stage, as does s. 10 which deals with rights upon arrest. Section 11 deals with a later stage of the proceedings, that is, when judicial proceedings are instituted by a charge. Sections 12 and 13 deal with matters which follow the trial, and s. 14 again refers to matters during trial.
In dealing with s. 11 , it must first be recognized that it is limited in its terms to a special group of persons, those "charged with an offence". It deals primarily with matters relating to the trial. It is to be noted that s. 11 is distinct from s. 10 and serves a different purpose: the two sections must not be equated. The framers of the Charter made a clear distinction between the rights guaranteed to a person arrested and those of a person upon charge. Sections 8 and 9 , as well, guarantee essential rights ordinarily of significance in the investigatory period, separate and distinct from those covered in s. 11 . It has been said that the purpose of s. 11 should be considered in deciding upon the extent of its application. This purpose, it has been said, is to afford protection for the liberty and security interests of persons accused of crime. While it is true that s. 11 operates for this purpose, I emphasize that it does so within its own sphere. It is not, nor was it intended to be, the sole guarantor and protector of such rights. As stated above, s. 7 affords broad protection for liberty and security, while the other sections, particularly those dealing with legal rights, apply to protect those rights in certain stated circumstances. Section 11 affords its protection after an accused is charged with an offence. The specific language of s. 11 should not be ignored and the meaning of the word "charged" should not be twisted in an attempt to extend the operation of the section into the pre-charge period. The purpose of s. 11 (b) is clear. It is concerned with the period between the laying of the charge and the conclusion of the trial and it provides that a person charged with an offence will be promptly dealt with.
The length of the pre-information or investigatory period is wholly unpredictable. No reasonable assessment of what is, or is not, a reasonable time can be readily made. Circumstances will differ from case to case and much information gathered in an investigation must, by its very nature, be confidential. A court will rarely, if ever, be able to fix in any realistic manner a time limit for the investigation of a given offence. It is notable that the law -- save for some limited statutory exceptions -- has never recognized a time limitation for the institution of criminal proceedings. Where, however, the investigation reveals evidence which would justify the swearing of an information, then for the first time the assessment of a reasonable period for the conclusion of the matter by trial becomes possible. It is for that reason that s. 11 limits its operation to the post-information period. Prior to the charge, the rights of the accused are protected by general law and guaranteed by ss. 7 , 8 , 9 and 10 of the Charter .
I acknowledge that in taking this position it may be said that I am departing from the earlier judgments of this Court which have said that there will be exceptional cases where pre-charge delays will be relevant under s. 11 (b). In my view, however, the departure is more apparent than real. The exception referred to by Lamer J. in Carter -- where two indictments are preferred because of successful appeals after a first trial -- has been dealt with in R. v. Antoine (1983), 5 C.C.C. (3d) 97 (Ont. C.A.), and Re Garton and Whelan (1984), 14 C.C.C. (3d) 449 (Ont. H.C.) These cases support the proposition that pre-charge delay is not relevant under s. 11 (b), by holding that the time commences to run from the date the original information was sworn.
It has been considered that special circumstances could arise which, in the interests of justice, would require some consideration of pre-charge delay because of prejudice which could result from its occurrence. In my view, however, the exceptional cases should be dealt with by reliance on the general rules of law and, where necessary, the other sections of the Charter . This approach would take account of and meet the concerns caused by the possibility of pre-charge delays. Delays which occur at the pre-charge stage are not immune from the law outside the scope of s. 11 (b). The Criminal Code itself in ss. 577(3) and 737(1) protects the right to make full answer and defence should it be prejudiced by pre-charge delay. Section 455.1 provides for a prompt swearing of an information where an appearance notice has been issued or an accused has been released from custody under ss. 452 or 453 . As well, the doctrine of abuse of process may be called in aid and as early as 1844 the common law demonstrated that it was capable of dealing with pre-information delays. Baron Alderson in R. v. Robins (1844), 1 Cox C.C. 114, in a case where nearly two years had elapsed from the alleged commission of an offence before a complaint was made to the justices, said:
I ought not to allow this case to go further. It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the charge be not preferred for a year or more, how can he clear himself? No man's life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial.
His Lordship then directed the jury to acquit the prisoner.
In addition, given the broad wording of s. 7 and the other Charter provisions referred to above, it is not, in my view, necessary to distort the words of s. 11 (b) in order to guard against a pre-charge delay. In my view, the concerns which have moved the Court to recognize the possibility of special circumstances which would justify a consideration of pre-charge delay under s. 11 (b) will thus be met.
In the case at bar, both the courts below considered that the post-charge delays were not such that they could be said to deprive the appellants of trial within a reasonable time. I am in agreement with this finding. The trial judge, however, considered the pre-charge delay of some eight months and concluded that it was unreasonable and upon that conclusion found that s. 11 (b) had been infringed. In this, I, in agreement with the Court of Appeal, consider that he was in error. I would accordingly dismiss the appeals.
The following are the reasons delivered by
LAMER J. (dissenting) -- My colleague Justice McIntyre has set out most accurately in his reasons the facts and the proceedings, and has analyzed the judgments below. I would only add to the facts the following observation made by trial judge Selbie:
One or two more observations on the period in question. I am satisfied that the accused through their counsel did everything they could to determine their position and have the charges formally laid so as to meet them. I am not satisfied that the authorities did all they could to expedite the inevitable, that is, the formal laying of the charges.
The real issue in these cases requires that we define when a person has become "a person charged". As I have indicated in Mills v. The Queen, [1986] 1 S.C.R. 863, and in Carter v. The Queen, [1986] 1 S.C.R. 981, the time frame to be considered in computing trial within a reasonable time generally runs only from the moment a person is charged. This is the definition of the word "charged" I gave as most appropriate under s. 11 (b) in Mills, at p. 946:
A person is charged as of,
(a) the service of a summons, the execution of a warrant pursuant to the laying of an information under s. 455.3 of the Criminal Code , or as of the moment a person is informed by the authorities of their existence; 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) as of the arrest, in the case of all other arrested persons not covered by