R. v. Conway

R. v. Conway
Collection
Supreme Court Judgments
Date
1989-06-22
Report
[1989] 1 SCR 1659
Case number
20877
Judges
Dickson, Robert George Brian; Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 20877
Decision Content
R. v. Conway, [1989] 1 S.C.R. 1659
Scott Conway Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. conway
File No.: 20877.
1988: December 16; 1989: June 22.
Present: Dickson C.J. and Lamer, La Forest, L'Heureux‑Dubé and Sopinka JJ.
on appeal from the court of appeal for ontario
Constitutional law -- Charter of Rights -- Trial within a reasonable time -- Five‑year period between charge and commencement of third trial ‑‑ Whether accused's right to be tried within a reasonable time has been infringed -- Canadian Charter of Rights and Freedoms, s. 11 (b).
Criminal law -- Abuse of process -- Crown seeking to try accused for a third time on same murder charge -- Five‑year period between charge and commencement of third trial -- Crown objecting to accused's re-election for a trial before a judge alone -- Crown not consenting to accused's plea to manslaughter -- Whether a third trial in these circumstances constitutes an abuse of process.
Appellant was charged with first degree murder on August 29, 1982 and convicted of second degree murder in December 1983. Thirteen months later, the Court of Appeal set aside the verdict and ordered a new trial. The second trial was set to commence on January 7, 1986. In December 1985, however, appellant's counsel was removed from the record and appellant was granted an adjournment to April 21, 1986, as he had been unable to retain new counsel. The jury failed to reach a verdict at the second trial and a mistrial was declared. The new counsel then informed the appellant that he could no longer represent him in proceedings held in Ottawa. Appellant sought to obtain a change of venue to Toronto but the application was opposed by the Crown and dismissed in August 1986. In the interim, the third trial had been set for September 22, 1986. At that time, appellant was still without counsel and, despite the Crown's objection, the trial was adjourned to November 10, 1986. Appellant found and ultimately retained a third counsel and, in order to accommodate counsel's schedule, the trial date was postponed to April 21, 1987. On that date, the Crown objected to appellant's application to re‑elect to be tried before a judge alone. The same issue was before the Court of Appeal and the trial judge adjourned the matter to await its decision. At the onset of the third trial, on October 26, 1987, appellant entered a plea of not guilty on the charge of murder but guilty on the lesser included offence of manslaughter. The plea was not accepted by the Crown because the appellant would not agree to a joint submission for a sentence of 15 years. The appellant then brought an application to stay arguing that (1) holding a third trial in the circumstances would constitute an abuse of process and (2) his right to be tried within a reasonable time guaranteed by s. 11 (b) of the Canadian Charter of Rights and Freedoms had been violated given the time elapsed since the beginning of the proceedings. The trial judge held that appellant's s. 11 (b) right had been infringed and ordered a stay of proceedings. The Court of Appeal set aside the order staying the proceedings and directed a new trial to proceed.
Held (Sopinka J. dissenting): The appeal should be dismissed.
Per Dickson C.J. and La Forest and L'Heureux‑Dubé JJ.: A trial judge has a discretion to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings. While the doctrine of abuse of process is not limited to prosecutorial misconduct or improper motive, the prosecution in this case did not constitute an abuse of process. The judge's power to stay proceedings may only be exercised in the clearest of cases.
The main purpose of s. 11 (b) of the Charter is to minimize the adverse effect on the person charged resulting from the pending disposition of an unresolved criminal charge. The focus of the protection is the impairment or prejudice arising from the delay in processing or disposing of the charges against an accused and not the impairment or prejudice arising from the fact that he has been charged. The cut‑off point after which a delay becomes unreasonable must be determined by balancing a number of factors including, among the most important ones, the prejudice suffered by the accused, the waiver of time periods, the inherent time requirements and the limitations on institutional resources. In deciding a s. 11 (b) claim, the correct approach is to evaluate the reasonableness of the overall lapse of time. A piecemeal analysis is generally not appropriate. As with other Charter guarantees, the individual claiming an infringement of his rights must persuade the court that the circumstances fall within the scope of protection of the specific Charter provisions. Under s. 11(b), the scope of protection is demarcated by the reasonableness of the total lapse of time. There is no reason to require as a rule that the onus shift from the accused to the Crown at the threshold of "prima facie unreasonability".
Proceeding on the basis that s. 11 (b) of the Charter extends to appellate proceedings, appellant's right to be tried within a reasonable time has not been infringed. The total five‑year period resulted, for the most part, from the choices made by appellant in the conduct of his defence, as well as from the delays inherent in a trial, appeal and retrial on a murder charge. Appellant unequivocally requested, caused and consented to the delays between the date initially set for the second trial and the onset of the third. During that period, several adjournments were granted to accommodate appellant's need for legal representation. While appellant had the right to be represented by counsel of choice, the delays incurred in so doing could not be invoked in this case in his s. 11 (b) claim. The same was true of the considerable delays resulting from appellant's pre-trial motion to re-elect for a trial before a judge alone. For the purpose of assessing the reasonableness under s. 11 (b), an accused, and the Crown as well, must bear the consequences of their tactical decisions in the conduct of the trial. As regards prejudice, assuming that such prejudice is relevant in a claim made under s. 11 (b), there was no evidence in the record that appellant would be prevented from having a fair trial. Balancing the delays, the prejudice to the appellant flowing from the passage of time, especially such passage of time which is not attributable to him, the nature and reasons for the delays, and the nature of the charge and other circumstances of the case, it could not be concluded that the overall lapse of time brings the appellant within the scope of s. 11 (b).
Per Lamer J.: Section 11 (b) of the Charter gives an accused the right to be tried within a reasonable time. The fundamental purpose of the section is to protect the rights set forth in s. 7 . The concept of 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. Actual impairment of an accused's security interest need not be proven to render s. 11 (b) operative. An objective standard is the only realistic means through which the security interest of the accused may be protected under the section. The impairment of the accused's defence is not a factor to be considered under s. 11 (b). The accused's right to mount a full and fair defence is more properly related to the right to a fair trial under s. 11 (d) of the Charter .
To determine whether an accused's right under s. 11 (b) has been infringed, the court should adopt a reasonableness test which involves a balancing of the inherent impairment of the accused's interest as of the moment he is charged from the very fact of being prosecuted, such impairment becoming increasingly pronounced with the passage of time, against three other factors that may justify the delay, or continued impairment of the accused's interests: (1) waiver of time periods; (2) time requirements inherent in the nature of the case, and (3) limitations to institutional resources. The facts relevant to the waiver of delays and limitations to institutional resources, however, must be evaluated during the transitional period, which, in this case, ended May 14, 1987 (the date the judgment of this Court in Rahey was handed down), keeping in mind court practices on the part of counsel and of court officials. Indeed, it would be inaccurate to give meaning or the same probative value to behaviour which occurred or court records which were held prior to that judgment against a standard whose parameters were unknown to all. Finally, a finding that the delay involved is prima facie excessive is not a condition precedent to the inquiry into reasonableness of the delay.
Here, appellant's s. 11 (b) right has not been infringed. Most of the delay is easily explained by the fact that the appellant did not object to any of the additional delays and in fact requested many of them. During the transitional period, where there is not an indication in the record of an objection by the accused or defence counsel, that silence should generally be construed as acquiescence in the delay. There is therefore waiver as regards those periods of time extending to May 14, 1987. The delays requested by the appellant during the same period, either when represented or not, constituted also a waiver of time. The appellant waived them clearly and unequivocally with full knowledge of his rights and the courts carried out their duty to ensure to their satisfaction that his waiver of time was clear, unequivocal and informed. Concerning the period extending from May 14, 1987 to October 26, 1987, the delays were also justified.
Per Sopinka J. (dissenting): In the circumstances of this case, the Crown's actions in prosecuting the case did not justify a stay of proceedings on the basis of an abuse of process.
Section 11 (b) of the Charter extends the procedural right to be tried within a reasonable time to appellate proceedings. The word "tried" must be interpreted in light of the intention of the provision. The purpose of s. 11 (b) is to minimize the prejudice to an accused as a result of a criminal charge by ensuring that proceedings are completed within a reasonable time. Given that the prejudice to the accused will persist until all appellate proceedings have finished, s. 11 (b) would be a shallow and illusory right if it were interpreted to apply only to the initial trial.
Section 11 (b) is premised in part upon a desire to ensure that an accused's liberty and security are not unduly violated as a result of a failure to complete criminal proceedings within a reasonable time. An accused alleging a violation of s. 11 (b) must thus persuade the court that prima facie the delay is unreasonable. The Crown must then justify the delay on the basis of any special features or circumstances of the case. The Crown can also justify the delay on the basis of conduct of the accused or his counsel, including waiver of delays. The Crown cannot, however, justify long periods of systemic delay even if such delays are beyond the control of the prosecution. The accused's right to counsel is part of the system and the failure or inability on the part of the accused to obtain counsel cannot justify unreasonable delay unless such failure or inability is attributable to the accused. A failure by the Crown to displace the prima facie case does not necessarily end the matter. In assessing the reasonableness of the delay, prejudice to the accused's liberty and security interest resulting from the delay must be considered. Prejudice to the accused's ability to make a full answer and defence may also be relevant.
In this case, the appellant's right to be tried within a reasonable time has been infringed. The delay was prima facie unreasonable and the Crown has failed to justify or satisfactorily explain substantial segments of the five‑year period. In particular, the appellant could not be held solely responsible for the delays between the second trial in May 1986 and the third trial in October 1987 and he did not unequivocally waive his right to a prompt trial. The Crown's objection to the appellant's application for a change of venue, in light of appellant's well known difficulties in retaining counsel, contributed to the delay. The appellant was also reasonably diligent in his attempt to find a lawyer but the Crown's insistence on unrealistically short adjournments made it difficult for him to obtain counsel on such short notice and hence caused new delays. Further, the appellant's request to re‑elect to appear before a judge alone was reasonable given his earlier experience with jury trials and the Crown's refusal to consent contributed to the mounting delay. The appellant also demonstrated his sincerity in wanting to conclude the proceedings by offering to plead guilty to manslaughter. The appellant has demonstrated prejudice to his liberty and security interests and it is now highly unlikely that a fair trial is possible. A stay of proceedings should be ordered.
Cases Cited
By L'Heureux‑Dubé J.
Applied: R. v. Jewitt, [1985] 2 S.C.R. 128; referred to: R. v. Rahey, [1987] 1 S.C.R. 588; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Young (1984), 40 C.R. (3d) 289; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Keyowski, [1988] 1 S.C.R. 657; R. v. Turpin (1987), 36 C.C.C. (3d) 289, aff'd [1989] 1 S.C.R. 1296; R. v. Pentiluk (1974), 28 C.R.N.S. 324; United States v. Loud Hawk, 474 U.S. 302 (1986); United States v. MacDonald, 456 U.S. 1 (1982); Beavers v. Haubert, 198 U.S. 77 (1905); R. v. Ross, [1989] 1 S.C.R. 3; Clarkson v. The Queen, [1986] 1 S.C.R. 383; United States v. Tateo, 377 U.S. 463 (1964).
By Lamer J.
Referred to: Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Turpin, [1989] 1 S.C.R. 1296, aff'g (1987), 36 C.C.C. (3d) 289.
By Sopinka J. (dissenting)
R. v. Rahey, [1987] 1 S.C.R. 588; United States v. Loud Hawk, 474 U.S. 302 (1986); Eur. Court H. R., Wemhoff case, judgment of June 27, 1968, Series A No. 7; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Barker v. Wingo, 407 U.S. 514 (1972); R. v. Antoine (1983), 5 C.C.C. (3d) 97; R. v. Askov (1987), 37 C.C.C. (3d) 289; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Turpin (1987), 36 C.C.C. (3d) 289, aff'd [1989] 1 S.C.R. 1296.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (b), 24 .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 429, 430 [rep. & subs. 1985, c. 19, s. 64], 465(1)(b) [am. c. 2 (2nd Supp.), s. 6; am. 1972, c. 13, s. 38; rep. & subs. 1974‑75‑76, c. 93, s. 58], 534(4) [rep. & subs. 1974‑75‑76, c. 105, s. 7; rep. & subs. 1985, c. 19, s. 125].
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, Arts. 5(3), 6(1).
APPEAL from a judgment of the Ontario Court of Appeal (1988), 26 O.A.C. 389, allowing the Crown's appeal from a judgment of Smith J. (1987), 3 W.C.B. (2d) 218, ordering a stay of proceedings. Appeal dismissed, Sopinka J. dissenting.
Alan D. Gold and Donald B. Bayne, for the appellant.
Brian J. Gover and Curt M. Flanagan, for the respondent.
//L'Heureux-Dubé J.//
The judgment of Dickson C.J. and La Forest and L'Heureux-Dubé JJ. was delivered by
L'HEUREUX-DUBÉ J. -- This appeal raises the question whether the appellant Conway should stand trial for a third time on a charge of murder. The facts are set out in ample detail by my colleague Justice Sopinka. While I agree with him and with the courts below that these facts do not disclose an abuse of process justifying a stay of proceedings, I cannot share his opinion that s. 11 (b) of the Canadian Charter of Rights and Freedoms was infringed in the circumstances of the present case.
Abuse of Process
In considering the submission based on abuse of process at trial, Smith J. directed himself as follows:
[T]he residual discretion in a Court to stay proceedings must not only be sparingly used, it must also be based on the prosecution being oppressive or vexatious, or follow upon the violation of the principles of fundamental justice and fair play or, again, there must be some other form of misconduct on the part of the authorities or some ulterior motive.
He found that there was no evidence to indicate that the prosecution had been "anything but fair and competent". He then went on to consider the main element in the appellant's claim, namely, that, in the circumstances, an abuse of process resulted from the Crown's objection to the appellant's re-election to be tried by a judge without a jury, and from the Crown's refusal to accept a plea of guilty of manslaughter in the absence of agreement on a joint submission for a sentence of fifteen years. Smith J. did not find the Crown's position oppressive. He commented as follows on the insistence that there be a joint submission on sentencing:
The Crown ought not to be taken to task for doing that. The Courts should encourage pre-trial discussions which have become much more frequent and numerous in recent years to the obvious benefit of the public. Such discussions are on their way to becoming completely institutionalized, at any rate. I feel compelled to say, though, that sentencing is for the courts and joint submissions, as is well understood by both Crown and Defence, are never binding upon the Court.
The Court of Appeal took a similar stand on this issue: (1988), 26 O.A.C. 389. In a unanimous decision, the Court (Cory J.A., as he then was, and Grange and McKinlay JJ.A.) rejected the appellant's submission that the Crown's requirement amounted to an abuse of process (at p. 395):
So far as the Crown was concerned, the aspect of sentence was inextricably bound up with the acceptance of the plea. There was no duty or obligation upon the Crown to accept the plea and the court should not impose such an obligation.
As well, the Court of Appeal rejected the contention based on the Crown's objection to the re-election before a judge without a jury, holding properly that "[t]he Crown could reasonably and properly determine that the issue should properly be determined by a jury as the representatives of the community" (p. 394).
I am in agreement with these findings in the courts below and would only add the following remarks.
A trial judge has discretion to stay proceedings in order to remedy an abuse of the court's process. This Court affirmed the discretion "where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings" (R. v. Jewitt, [1985] 2 S.C.R. 128, at pp. 136-37, borrowing from R. v. Young (1984), 40 C.R. (3d) 289 (Ont. C.A.)) The judge's power may be exercised only in the "clearest of cases" (Jewitt, supra, at p. 137).
Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure "that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society" (Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 689, per Lamer J.) It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.
Stays for abuse of process are not limited to cases where there is evidence of prosecutorial misconduct. In delivering the reasons of the Court in R. v. Keyowski, [1988] 1 S.C.R. 657, Wilson J. made it clear that all relevant factors, including, but not restricted to, bad faith on the part of the Crown, are to be considered (at p. 659):
To define "oppressive" as requiring misconduct or an improper motive would, in my view, unduly restrict the operation of the doctrine. In this case, for example, where there is no suggestion of misconduct, such a definition would prevent any limit being placed on the number of trials that could take place. Prosecutorial misconduct and improper motivation are but two of many factors to be taken into account when a court is called upon to consider whether or not in a particular case the Crown's exercise of its discretion to re-lay the indictment amounts to an abuse of process.
While Wilson J. appears to contemplate that a sufficient number of trials may alone render the prosecution "oppressive", she suggests later in her reasons that the threshold is higher than two inconclusive trials (at p. 660):
A third trial may, indeed, stretch the limits of the community's sense of fair play but does not of itself exceed them.
In the present appeal, the evidence supports no suggestion of prosecutorial misconduct or improper motive. As well, in light of the comments in Keyowski with respect to the number of trials, little weight can attach to the fact that the Crown is attempting to try the appellant a third time. Does the Crown's stand with respect to the re-election and the plea tip the scales in favour of prosecutorial oppression? Under ss. 429 and 430 of the Criminal Code, R.S.C. 1970, c. C-34, as they stood at the time material to this appeal, "an accused charged with murder anywhere in Canada except Alberta had no choice but to be tried by a superior court of criminal jurisdiction consisting of a judge of that court together with a jury" (R. v. Turpin (1987), 36 C.C.C. (3d) 289 (Ont. C.A.), at p. 293, appeal dismissed, [1989] 1 S.C.R. 1296). Proceeding on the footing that the applicable provisions of the Code were valid, the Crown objected to the proposed re-election on the ground that any such re-election would have been contrary to ss. 429 and 430 of the Criminal Code . Such conduct does not in my view take the Crown's adversarial position too far. The Crown was entitled to conduct the prosecution on the basis that the applicable dispositions of the Criminal Code were constitutionally valid.
In addition, s. 534(4) of the Criminal Code expressly recognizes the Crown's option to refuse a plea of guilty to an offence other than the offence charged:
534. . . .
(4) Notwithstanding any other provision of this Act, where an accused . . . pleads not guilty of the offence charged but guilty of any other offence arising out of the same transaction, whether or not it is an included offence, the Court may, with the consent of the prosecutor, accept such plea of guilty and, if such plea is accepted, the court shall find the accused . . . not guilty of the offence charged and find him guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in the record of the court. [Emphasis added.]
The requirement of prosecutorial consent is very strict and a plea of guilty which is not accepted by the prosecution is a "nullity" (R. v. Pentiluk (1974), 28 C.R.N.S. 324 (Ont. C.A.), at p. 328, reasons of the Court delivered by Martin J.A.):
Where the accused pleads not guilty to the offence charged but guilty to the included offence, and the plea of guilty to the included offence is not accepted, the only plea that has been made is one of not guilty. The plea of guilty to the included offence is not in accordance with the provisions of s. 534(6) [s. 534(4) in R.S.C. 1970, c. C-34] and is a nullity.
To allow pleas of guilty to lesser offences to be recorded without the consent of the Crown would be to negate the very premises of the administration of criminal justice. There can be no deterrence of crime nor any reinforcement of fundamental social values if a person charged with committing a particular offence is convicted and sentenced with respect to another offence of that person's choice. That is why the requirement of consent under s. 534(4) of the Criminal Code is so strict. Nevertheless, that provision furnishes some tools for tailoring the generally cumbersome system of criminal justice to the particular needs of individual cases. It makes room for a rational exercise by the Crown of its discretionary power, having regard to the interests of society and of the accused in each particular case.
These are some of the considerations which explain why the Crown has a discretion to accept pleas of guilty to lesser offences. I do not believe that this discretion shields the Crown from the application of the doctrine of abuse of process. There may be some cases in which the Crown is found to exercise this discretion unreasonably or oppressively. The Court of Appeal implicitly contemplated such cases when it wrote that "[t]he proper exercise of a Crown discretion cannot amount to an abuse of process" (p. 394). In view of the rationale underlying this discretion, however, one would expect such cases to be exceptional. The present appeal is not one of those exceptional cases. The position of the Crown with respect to the plea has been consistent throughout the proceedings. There has been no abrupt change of position or volte-face, nor did the Crown unfairly renege on expectations it had generated in the appellant.
For these reasons, to hold a third trial in the circumstances would not in my view "violate those fundamental principles of justice which underlie the community's sense of fair play and decency" nor would it constitute an "abuse of a court's process through oppressive and vexatious proceedings". The present case is not one of the "clearest of cases" to which the Chief Justice referred in Jewitt, supra.
Right to be Tried Within a Reasonable Time
I now turn to the question whether the appellant's right to be tried within a reasonable time under s. 11 (b) of the Charter was infringed. At the outset, counsel for the Crown conceded that "the period of approximately five years between the Appellant's arrest and the commencement of his third trial was prima facie excessive and, as such, it warranted examination by the learned trial judge". This admission assumes that the protection afforded by s. 11 (b) extends until the final adjudication of the charge. The Crown made no submissions to this Court on the question of whether this protection stops after the person charged has been tried once within a reasonable time. In R. v. Rahey, [1987] 1 S.C.R. 588, there were some comments suggesting that the application of s. 11 (b) to further proceedings such as appeals and retrials flows from the purpose of the guaranteed right. This is consistent with the views of the Supreme Court of the United States that the speedy trial guarantee extends to delays "occasioned by an unduly long appellate process" (United States v. Loud Hawk, 474 U.S. 302 (1986), at p. 312). Lamer J. (the Chief Justice concurring) stated that the computation "must continue until the end of the saga, all of which must be within a reasonable time" (Rahey, supra, at p. 611). La Forest J. (McIntyre J. concurring) remarked that the word "tried" used in s. 11 (b) "means "tried" in the sense of "adjudicated" and thus clearly encompasses the conduct of a judge in rendering a decision" (p. 632). The parties argued this appeal on a footing consistent with the above views expressed in Rahey. Assuming without deciding that these views support the position adopted by the parties in this appeal, I am disposed to proceed on this basis.
Section 11 (b) of the Charter
Section 11 (b) of the Charter states:
11. Any person charged with an offence has the right
. . .
(b) to be tried within a reasonable time;
11. Tout inculpé a le droit:
. . .
b) d'être jugé dans un délai raisonnable;
In the opinion of the Supreme Court of the United States, the speedy trial guarantee in the American Bill of Rights "is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges" (United States v. MacDonald, 456 U.S. 1 (1982), at p. 8, adopted in Loud Hawk, supra, at p. 311). These words very aptly describe the main purpose for the right to be tried within a reasonable time under s. 11 (b) of the Charter , namely, to minimize the adverse effect on the person charged resulting from the pending disposition of an unresolved criminal charge. The focus of the protection is "the impairment or prejudice arising from the delay in processing or disposing of the charges against an accused and not the impairment or prejudice arising from the fact that he has been charged" (Rahey, supra, at p. 624, per Wilson J.) The right recognizes that, with the passage of time, subjection to a criminal trial gives rise to restrictions on liberty, inconveniences and pressures detrimental to the mental and physical health of the individual.
The protection afforded by s. 11 (b) of the Charter is not expressed in absolute terms. That provision implicitly allows for a reasonable exposure to the very dangers which are ultimately sought to be minimized. Some measure of impairment of the protected interests may validly result from the prosecution of persons charged. This in effect accommodates the important community interest of preventing crime through the conviction of persons guilty of a criminal offence. For the Supreme Court of the United States, the right to a speedy trial "is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice" (Beavers v. Haubert, 198 U.S. 77 (1905), at p. 87).
Accordingly, the cut-off point after which a delay becomes unreasonable must be determined by balancing a number of factors. A balancing approach was favoured by this Court in Rahey, although not all concurring members of the Court necessarily agreed on how the balancing was to be effected nor on what were the specific factors to be considered. I doubt there can ever be an exhaustive and unanimous list of factors, but among the most relevant ones considered by the courts generally, and in particular, by this Court in Rahey, are: prejudice suffered by the accused, waiver of time periods, inherent time requirements and limitations on institutional resources. Certainly the prejudice suffered by the accused is an important consideration. While some degree of impairment may necessarily result from the mere passage of time, in my view, greater weight in the overall assessment of reasonableness should attach to impairment resulting from delays not attributable to the person charged.
Waiver involves a consideration of whether any delays were requested, caused or consented to by the person charged. Such delays as a rule do not weigh meaningfully in favour of the unreasonableness of the overall time period and "should normally be excluded from consideration when assessing reasonableness" (Rahey, supra, at p. 612, per Lamer J.) In effect, when delays are caused, requested or consented to by an accused, it may generally be assumed that the accused benefits from the resulting protraction of the proceedings, although the ultimate decision will of course have to be made having regard to all the circumstances in each particular case. This is not to say that an accused will necessarily be at fault for contributing to the protraction of the proceedings. An accused has the right to make a full answer and defense and, to this end, to choose the manner in which to exercise this right in accordance with the law. Neither for that matter will blame be imputed to the Crown or the judicial system when a claim under s. 11 (b) succeeds. The Crown is free to use its prosecutorial discretion as it seems fit, provided that it does not conduct the prosecution in an abusive manner. We are not here concerned with fault but with the reasonableness of the overall delays in bringing an accused to justice.
Also relevant in the balancing test is a consideration of the "time requirements inherent in the nature of the case" and of any "limitations to institutional resources" (Rahey, supra, at p. 608, per Lamer J.) The first of these factors is concerned with an estimation of the total time which would be required to process the charge, given, among others, the complexity and the nature of the case. In assessing the reasonableness under s. 11 (b) of the Charter , "one must overlook the lapse of time inherent in the case, together with any resulting inconvenience to the accused" (Rahey, supra, at p. 634, per La Forest J.) The second element makes some allowance for delays which may have been caused by any limitations on the resources of the judicial system.
In deciding a claim made under s. 11 (b) of the Charter , the correct approach is in my view to evaluate the reasonableness of the overall lapse of time. A piecemeal analysis is generally not appropriate. In a case where each individual period, taken in isolation from the others, may constitute a reasonable delay, the total period may nevertheless be unreasonable for the purpose of s. 11 (b). The case of Rahey illustrates the point. While each adjournment initiated by the judge was for a short period, the accumulation of all nineteen adjournments over the span of eleven months was held to infringe s. 11 (b). However, nothing prevents a court from focussing on specific time periods which may be significant in the overall assessment, as going to the weight to give to specific delays, as opposed to their reasonableness.
In balancing the relevant factors, I cannot subscribe to the two-step onus requirement suggested by my colleague Sopinka J. As I understand his views, once the person charged has satisfied the court that the total time is "prima facie unreasonable", the onus then shifts to the Crown to justify the delay. However, as with other Charter guarantees, the individual claiming an infringement of his or her rights must persuade the court that the circumstances fall within the scope of protection of the specific Charter provision. Under s. 11(b) of the Charter , the scope of protection is demarcated by the reasonableness of the total lapse of time. It may be that a de facto shift of the burden of proof occurs in the minds of individual judges in the overall assessment of reasonableness. In this connection, Lamer J. remarked in Mills, supra, at pp. 942-43:
I hasten to add that a finding that the delay involved is prima facie excessive is not a condition precedent to the inquiry into the reasonableness of the delay, i.e., to the weighing and balancing of the four criteria elaborated above. It is simply an approximate point at which the courts may properly look to the Crown to justify additional delay. Such a period, of course, is, I should repeat, no more than a reference point. It may well be that a balancing of the four criteria of reasonableness will lead to a finding of a violation for lesser periods of delay. Conversely, greater periods of delay may well be held to be reasonable depending upon, once again, an assessment and a weighing of the criteria. What does happen, and that is a reality that must be acknowledged, is that there comes a time when the judge turns from the applicant to the Crown to be told what is exceptional in the case. [Emphasis added.]
Unlike Sopinka J., I see no reason of principle or policy to enshrine in a rule such a de facto shift or "reference point", especially at a threshold admittedly as ambiguous as "prima facie unreasonability". Some elements relevant to the assessment can best be established by the person charged. For instance, if prejudice is an issue, then the person charged is best suited to establish that element. As remarked earlier, prejudice resulting from delay requested, caused or consented to by the person charged may be weighed differently from prejudice resulting from delay originating elsewhere. Accordingly, the courts might expect the person charged to give a prima facie account of the causes for the delays. As well, one would expect the person charged, and not the Crown, to properly inform the court as to what could have been the shortest possible delays in view of the available institutional resources and as to what should be the best frame of reference with which to compare the delays incurred in that person's case. Given the importance of the facts in individual cases where an unreasonable interval of time is alleged, I am of the view that a more flexible or functional approach is appropriate.
In light of this general framework, I now propose to consider the facts with a view to assessing the reasonableness of the overall lapse of time in the present case. Since my assessment of the facts as they relate to a breach of s. 11 (b) of the Charter differs substantially from that of my colleague Sopinka J., it is necessary for me to consider them in some detail. I hasten to point out that while a consideration of the facts may be necessary in the course of a determination whether the right to be tried within a reasonable time was breached, that question is one of law in the present case. In this connection, I would adopt the following remarks of the Court of Appeal (at p. 393):
In the case before us, there are no findings as to credibility and there are no facts in dispute. Upon the same facts which were before the trial judge, we cannot agree with his conclusion of law.
Assessment of Reasonableness
By way of preliminary remark, I find that the Crown's actions show an overall and sustained concern to proceed as quickly as possible. In his oral pleading before this Court, counsel for the appellant himself emphasized the Crown's insistence on close trial dates. The Crown never asked for an adjournment nor brought any interlocutory proceedings. It repeatedly objected to adjournments requested by the appellant. On the other hand, an examination of the proceedings suggests that the appellant adopted a course of conduct not always consistent with an assertion of his right to be tried quickly. On several occasions in these proceedings the appellant was not represented by counsel when he appeared on dates set for trial. This caused a number of adjournments to be granted, as the courts may have been reluctant to proceed on a charge of murder while the appellant did not have the benefit of counsel. The reasons for these adjournments play an important, albeit not necessarily conclusive, role in solving the question at hand.
The first such incident occurred in November 1985. The appellant's second trial was set in June 1985 to proceed before Osborne J. on January 7, 1986. But in November 1985, Mr. Shore, who was counsel at the first trial and still counsel of record, brought an application to be removed from the record. The application, after being refused once, was