R. v. Potvin, [1993] 2 S.C.R.
880
Richard Potvin Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Potvin
File No.: 23110.
Judgment rendered orally:
1993: June 7.
Reasons for judgment
rendered: 1993: August 12.
Present: Lamer C.J. and
La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin,
Iacobucci and Major JJ.
on appeal from the court of appeal for
ontario
Constitutional law ‑‑
Charter of Rights ‑‑ Trial within a reasonable time ‑‑
Twenty‑six month pre‑trial delay including delays to accommodate
defence and Crown ‑‑ Stay of proceedings granted ‑‑
Eighteen month appellate delay from granting of stay ‑‑ Whether pre‑trial
delay offending s. 11 (b) of the Charter ‑‑ Whether s. 11(b) applicable
to appellate delay ‑‑ Whether s. 7 (abuse of process) applicable to
appellate delay -- Canadian Charter of Rights and Freedoms, ss. 7 , 11 (b).
Criminal law ‑‑
Constitutional law ‑‑ Charter of Rights ‑‑ Trial within
a reasonable time ‑‑ Twenty‑six month pre‑trial delay
including delays to accommodate defence and Crown ‑‑ Stay of
proceedings granted ‑‑ Eighteen month appellate delay from granting
of stay ‑‑ Whether pre‑trial delay offending s. 11 (b) of the
Charter ‑‑ Whether s. 11(b) applicable to appellate delay --
Whether s. 7 (abuse of process) applicable to appellate delay -- Canadian
Charter of Rights and Freedoms, ss. 7 , 11 (b).
The appellant was
charged with criminal negligence causing death in an information sworn on
September 15, 1988. He was released from custody on an undertaking. A series
of lengthy delays occurred (in part to accommodate counsel for both the Crown
and the defence) with respect to matters preliminary to a trial and a trial
date was finally set at December 3, 1990. Appellant applied on that date for
and was granted a stay of proceedings under s. 24(1) of the Charter on
the ground that the right to trial within a reasonable time in s. 11 (b)
of the Charter had been infringed. The Attorney General appealed
against the stay of proceedings on December 24, 1990 and the hearing for the
appeal was set for April 24, 1992. The Court of Appeal allowed the appeal on
June 22, 1992, and set aside the stay and remitted the matter for trial on an
expedited basis. The issues before this Court were whether the delay preceding
the end of the trial was so unreasonable as to offend the provisions of s. 11 (b)
of the Charter and whether s. 11 (b) applied to the delay in
respect of the appellate proceedings.
Held: The appeal should be
dismissed.
Per L'Heureux‑Dubé, Sopinka,
Gonthier, Cory and Iacobucci JJ.: The appeal based on pre‑trial delay
was dismissed for the reasons given by Osborne J.A.
Section 11 (b)
does not apply to delay in respect of an appeal from conviction by the accused
or from an acquittal or stay by the Crown. There is no distinction in this
regard between an acquittal after trial and a judicial stay.
The term
"[a]ny person charged" under s. 11 does not, as a general rule,
include an accused person who is party to an appeal. A particular subsection
in s. 11 may, however, apply to appeal proceedings as an exception to the
general rule if its purpose and language support this conclusion. Section 11 (b),
however, has been interpreted as applying only to the consequences of delay
flowing from a formal charge and does not extend to the consequences of delay
at large. Short of a formal charge, similar consequences proceeding from other
aspects of governmental activity in the criminal process do not trigger the
protection of the provision.
After an acquittal
and before the service of a notice of appeal, the person acquitted is not a
person charged because there is no proceeding which seeks to charge the person
acquitted. Upon the appeal's being filed there is a possibility that the
acquittal will be set aside and the charge will be revived. The plight of the
acquitted person is that of one against whom governmental action is directed
which may result in a charge. In this respect the former accused is like the
suspect against whom an investigation has been completed and charges are
contemplated awaiting a decision by the prosecutor. There is even less reason
to extend the protection of s. 11 (b) to a convicted person who appeals
because the appeal is not governmental action.
The conclusion that
the words "[a]ny person charged" in s. 11 (b) limit the
operation of the subsection to the trial process is supported by the use of the
word "tried". If the subsection were to apply to final adjudication
as well, more apt wording would have been used.
Section 11 (b)
is not spent when there is an adjudication relating to a charge is appealed.
If on the appeal the judgment is set aside and the matter is remitted for
trial, the accused reverts to the status of a person charged.
The criminal
appellant or respondent is not without a remedy when delay of appeal
proceedings affects the fairness of the trial. The court's power to remedy an
abuse of process, enshrined as a principle of fundamental justice in s. 7 , is
simply applied to delay. The criminal appeal rules and provisions of the Criminal
Code also afford a litigant in a criminal appeal a range of remedies to
eliminate any substantial delay on the part of the adversary.
The appropriate
forum for a remedy under s. 7 of the Charter is the court in which the
delay occurred. It is in the best position to assess the consequences of the
delay. If a further appeal lies from the first appellate court, the issue of
delay can be reviewed in the second appellate court along with the consequences
of additional delay resulting from the second appeal. This Court does not
favour issues being raised for the first time in an appeal to this Court.
Per Lamer C.J. and McLachlin and Major
JJ.: "[C]harged with an offence" indicates a person subject to the
power of the criminal process. Until the person is finally released from the
jeopardy of the criminal process by a final resolution of the
"charges", the person remains, for the purposes of s. 11 (b), a
person charged with an offence.
Many of the rights
enumerated in s. 11 are restricted to the early stages of the criminal
process. But others, such as s. 11(h) and 11(g), clearly apply
after a verdict. Since s. 11 is directed to ensuring fairness at all stages of
the criminal process, it cannot be concluded that s. 11(b) must
necessarily be confined to the pre‑stay, pre‑verdict phase.
The rights which s.
11(b) seeks to protect are all engaged in the period between a verdict
or a stay and the final disposition of the criminal charges. The language and
context of the subsection indicate that it is not confined to the pre‑stay
or pre‑verdict period of the criminal process. The fact that the
restriction of the interest which s. 11(b) protects must result from an
actual charge does not lead to the conclusion that s. 11(b) does not
apply to post‑stay or post‑verdict appellate delay. If "[a]ny
person charged" is read as being synonymous with "a person who is the
subject of the criminal process", s. 11(b) would apply even after a
verdict. The appeal proceedings result from an actual charge and are dependant
upon it for their validity. A person facing the prospect of a new trial as a
result of the appellate process, whether the original verdict was an acquittal,
conviction or stay, can become subject to unfairness caused by delay.
In light of its
objects, s. 11(b) applies to delays after the entry of a stay or a
verdict. A complex two‑principle scheme for assessing delay in the
criminal process is not necessary in a practical sense because the same general
principles can and should apply throughout, even though they may impact
differently depending on the particulars and the stage of the delay.
Interlocutory, trial and appellate proceedings may be so intertwined that it
makes little sense to attempt to apply different legal rules according to the
stage of the process.
The principles
applicable under s. 11(b) are: (1) the length of the delay; (2) waiver,
if any, of parts of the delay; (3) the reasons for the delay; and (4) prejudice
to the subject of the criminal process. These principles are broad and
flexible enough to apply at the post‑stay, post‑verdict stage of
the criminal process.
The many different
circumstances which may prevail at the post‑verdict, post‑stay
stage require a flexible approach to remedies. The Charter empowers the
court to grant such remedies as may be just in all the circumstances. Factors
such as the length and nature of the delay, the seriousness of the offence, the
nature of the injury suffered by the accused and any prejudice caused to the
accused's defence inherent in the delay should be considered in selecting a
remedy.
The choice of forum
for the remedy should be flexible. The proceedings would be unnecessarily truncated
and complicated if only courts of first instance could deal with pre‑stay,
pre‑verdict delay and courts of second instance with appellate delay.
Per La Forest J.: Section 11 (b)
of the Charter does not apply to appellate delay. Given the interrelationship
between ss. 7 and 11 (b), s. 7 may in certain contexts provide residual
protection to the interests that the s. 11 (b) right is designed to
protect that goes beyond the specific protection it provides. Those interests
are also entitled to protection at the appellate level but subject to the
special considerations specific to the appellate process and in consequence the
choice of an appropriate remedy. In particular, a stay should not be used as
often as the appropriate remedy for appellate delay as for trial delay. The
views of McLachlin J. on these matters and on the appropriate court for
considering delay were generally shared. However, her concerns about a
bifurcated system were not agreed with. Weight may be given to pre‑appeal
delay at the appellate level and a consideration of appellate delay can figure
in the equation when complaints about delay are raised at trial following
appellate review. Sections 7 and 11 (b) are not mutually exclusive. The
Charter is an organic instrument.
Cases Cited
By Sopinka J.
Referred to: R. v. Morin, [1992] 1 S.C.R.
771; R. v. Stensrud, [1989] 2 S.C.R. 1115; R. v. Lyons, [1987] 2
S.C.R. 309; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Kalanj,
[1989] 1 S.C.R. 1594; R. v. L. (W.K.), [1991] 1 S.C.R. 1091; R. v.
CIP Inc., [1992] 1 S.C.R. 843; Eur. Court H. R., Wemhoff case,
judgment of 27 june 1968, Series A No. 7; United States v. Loud Hawk,
474 U.S. 302 (1986); Simmons v. Reynolds, 898 F.2d 865 (1990); United
States v. Antoine, 906 F.2d 1379 (1990); United States v. Kimmons,
917 F.2d 1011 (1990); Burkett v. Cunningham, 826 F.2d 1208 (1987); DeLancy
v. Caldwell, 741 F.2d 1246 (1984); United States v. Johnson, 732
F.2d 379 (1984); United States v. Pratt, 645 F.2d 89 (1981); Rheuark
v. Shaw, 628 F.2d 297 (1980), certiorari denied 450 U.S. 931 (1981);
Roque v. Puerto Rico, 558 F.2d 606 (1976); People v. Cousart, 444
N.E.2d 971 (1982); Amato v. The Queen, [1982] 2 S.C.R. 418; R. v.
Jewitt, [1985] 2 S.C.R. 128; R. v. Young (1984), 40 C.R. (3d) 289; R.
v. Keyowski, [1988] 1 S.C.R. 657; R. v. Gallagher, [1993] 2 S.C.R.
000.
By McLachlin J.
Referred to: R. v. Rahey, [1987] 1 S.C.R.
588; R. v. Kalanj, [1989] 1 S.C.R. 1594; R. v. Morin, [1992] 1
S.C.R. 771; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Keyowski,
[1988] 1 S.C.R. 657, aff'g (1986), 49 Sask. R. 64; R. v. Mack, [1988] 2
S.C.R. 903.
By La Forest J.
Referred to: Eur. Court H. R., Wemhoff
case, judgment of 27 june 1968, Series A No. 7; R. v. Rahey, [1987] 1
S.C.R. 588; Thomson Newspapers Ltd. v. Canada (Director of Investigation and
Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425.
Statutes and Regulations Cited
Canadian
Charter of Rights and Freedoms, ss. 7 , 11 (a), (b), (c), (e), (f),
(g), (h), (i), 24(1) .
Convention
for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, ss. 5(3), 6(1).
United States Constitution, 6th and 14th Amendments.
Authors Cited
Doherty,
D. H. "More Flesh on the Bones: The Continued Judicial Interpretation of
s. 11 (b) of the Canadian Charter of Rights and Freedoms " (1984), Canadian
Bar Association -‑ Ontario; Annual Institute on Continuing Legal
Education.
Morgan,
Donna C. "Controlling Prosecutorial Powers ‑‑ Judicial
Review, Abuse of Process and Section 7 of the Charter " (1986), 29 Crim.
Law Q. 15.
APPEAL from a
judgment of the Ontario Court of Appeal (1992), 74 C.C.C. (3d) 111, 56 O.A.C.
139, allowing an appeal from a judgment of Stortini J. staying a charge.
Appeal dismissed.
Brian H. Greenspan and Sharon E. Lavine, for the
appellant.
David Butt, for the respondent.
//McLachlin J.//
The reasons of
Lamer C.J. and McLachlin and Major were delivered by
McLachlin
J. -- I have read the
reasons of my colleague, Justice Sopinka, and must respectfully dissent from
his views on how appellate delay is treated under the Canadian Charter of
Rights and Freedoms .
My colleague
concludes that the criminal process must be divided into distinct phases for
the purpose of assessing whether an accused person has been denied the right to
have criminal proceedings against him dispatched without undue delay. The
first phase, if I understand his reasons, is the period between the laying of
charges and the entry of a verdict or stay of proceedings. This is assessed
under s. 11 (b) of the Charter which guarantees the right to be
tried within a reasonable time. The next stage lies between the entry of a
verdict or stay, and the resolution of appeals from the verdict or stay. Delay
in this stage is to be assessed under quite different principles -- s. 7 abuse
of process. However, that is not the end of the story. If the result of the
appeal is an order for a trial (in the case of a stay) or for a new trial (in
the case of a verdict), the
clock is wound back. My colleague
does not specify precisely what he means by this. One possibility is that the
entire analysis, including the period of appellate delay, would be assessed
under s. 11 (b). The other possibility is that different segments of the
process leading to the ordered trial, would be analyzed under different
sections of the Charter : s. 11 (b) up to the stay or verdict; s.
7 abuse of process from then to the order for a trial; and s. 11 (b) once
again after that order is made.
My colleague
concedes that the objects and purposes of s. 11 (b) -- to protect the
right to security of the person, the right to liberty and the right to a fair
trial -- on their face apply to post-stay and post-verdict appellate delay. He
argues, however, that the complicated scenario he proposes is necessitated by
the wording and textual context of s. 11 (b); by prior decisions of this
Court; and by the fact that the entry of a stay or verdict radically changes
the interests at stake. In my view, none of these considerations withstands
close scrutiny. Until the person charged is released from the prospect of
further trials and proceedings by a final resolution of the matter, s. 11 (b)
and the principles which have been enunciated under it are applicable. To be
sure, the factors considered under s. 11 (b) may have different weight
depending on the circumstances, and different considerations may fall to be
considered where appellate proceedings are at issue. Furthermore, the remedies
may vary, depending on the stage of the criminal process where one is. But
these factors can and should, in my view, all be assessed under the single test
imposed by s. 11 (b) of the Charter .
The Wording and
Context
I turn first to the
wording and context of s. 11 (b). My colleague argues that the phrases
"charged with an offence" and "to be tried" suggest that s.
11 (b) applies only to the time of trial. I respectfully disagree.
"[C]harged with an offence", should, in my view, be read as
indicating a person who is subject to the power of the criminal process. Until
the person is finally released from the jeopardy of the criminal process by a
final resolution of the "charges" against him or her, the person
remains, for the purposes of s. 11 (b), a person charged with an
offence. This position in consistent with the comments of Lamer J., as he then
was, in R. v. Rahey, [1987] 1 S.C.R. 588, at pp. 610-11:
...
s. 11 (b) protects against an overlong subjection to a pending criminal
case and aims to relieve against the stress and anxiety which continue until
the outcome of the case is final. . . . The computation [of the
delay] cannot end as of the moment the trial begins, but rather must continue
until the end of the saga, all of which must be within a reasonable time.
The narrower
reading of "charge" contended for by my colleague, Sopinka J.,
produces a scenario of waning and waxing charges. My colleague argues that a
stay or verdict ends the charge. But he is then forced to assert that a
subsequent order for a trial or new trial "revives" the charge, which
has presumably lain dormant even though it has supposedly disappeared. At the
verdict after the trial, the charge once more wanes, only to be revived yet
again if an appeal court orders yet further trial proceedings. The accused is
subject to one criminal process, throughout which his freedom is in jeopardy.
Yet the law would tell him that he is charged only part of the time, depending
in which particular part of the process he is.
The interpretation
my colleague suggests for the phrase "to be tried" is similarly
problematic. My colleague asserts that a person's s. 11 (b) right to be
tried within a reasonable time expires with the entry of a stay. Yet this may
occur before the person has ever had a trial. If the stay is set aside on
appeal and the accused ordered to stand trial, he or she has no right to complain
in the face of egregious Crown delay occurring at the appellate stage that his
or her right to be tried within a reasonable time has been breached, even
though he or she has never stood trial. The case of an order for a new trial
after acquittal is similarly problematic. The first trial is declared
invalid. In effect, the accused has not had a proper trial. A new trial is
ordered. Notwithstanding that the accused has not enjoyed the right which the Charter
expressly gives him or her -- the right to a proper trial within a reasonable
time -- he or she would be precluded by the interpretation my colleague
suggests of claiming an infringement of s. 11 (b) on the basis of
unreasonable appellate delay, and confined to the much narrower remedy of s. 7
abuse of process. This cannot, in my view, have been what the framers of the Charter
intended.
Nor does the
textual context of s. 11(b) dictate the interpretation for which my
colleague contends. It is true that many of the rights enumerated in s. 11 are
restricted to the early stages of the criminal process. But others, such as s.
11(h) and 11(g), clearly apply after a verdict. So it does not
follow, with respect, that "[i]f "[a]ny person charged" in s.
11(b) necessarily includes the accused as a party to an appeal then the
same conclusion would have to apply to the other subsections of the
section," as my colleague concludes at p. 000. Since s. 11 is directed to
ensuring fairness at all stages of the criminal process, it cannot be concluded
that s. 11(b) must necessarily be confined to the pre-stay, pre-verdict
phase.
My colleague argues
that because s. 11(b) has been held not to apply to pre-charge delay (R.
v. Kalanj, [1989] 1 S.C.R. 1594), it cannot be held to apply to appellate
delay. He concludes, at p. 000, that "s. 11(b) does not apply
unless the restriction of the interests which the subsection protects results
from an actual charge." With this I agree. But I do not agree that this
leads to the conclusion that s. 11(b) does not apply to post-stay or
post-verdict appellate delay. If "[a]ny person charged" is read as
synonymous to "a person who is the subject of the criminal process",
as I suggest, it follows that s. 11(b) would apply even after a
verdict. The appeal proceedings clearly result from an actual charge; indeed,
they are dependant upon it for their validity.
The Interests At
Stake
My colleague,
Sopinka J., argues that consideration of the rights protected by s. 11(b)
leads to the conclusion that it does not apply to post-stay or post-verdict
appellate proceedings.
The rights
protected by s. 11(b), as noted earlier are the right to security of the
person, the right to liberty, and the right to a fair trial: R. v. Morin,
[1992] 1 S.C.R. 771. My colleague considers first the case of an appeal from
an acquittal. He concludes, at p. 000, that during this period "[n]o
proceeding is on foot which seeks to charge the person acquitted", and
states that the "plight of the acquitted person is that of one against
whom governmental action is directed which may result in a charge." With
respect, this diminishes the seriousness of the position of the acquitted
person facing an appeal. Before a charge is laid, the suspect does not,
generally speaking, suffer the stigma of criminal proceedings. The same cannot
be said of an accused who is the subject of a post-acquittal appeal. He or she
has in fact been charged. The law continues to require him or her to defend
him- or herself against the charges. He or she must hire lawyers and plead
before judges. While he or she has been acquitted, the prosecution continues
to aver publicly that the acquittal is invalid. And he or she faces the
distinct possibility of an order overturning the acquittal and entering a
conviction or directing a new trial, a prospect which is not a speculative
possibility but a real danger. The anxiety which an accused who has been
acquitted faces while awaiting the possibility of a second trial must be
considerable. In all these respects, the situation of an accused on an appeal
from an acquittal is much closer to the situation of an accused awaiting trial
than to a person who has not been charged. I respectfully cannot agree with my
colleague's conclusion, at p. 000, that "[i]t would be incongruous to
extend protection to the acquitted accused pending appeal and not to the
suspect awaiting a charge. . . ."
The situation of a
convicted person who appeals, while less sympathetic than that of the acquitted
person who faces an appeal, nevertheless engages the concerns to which s. 11(b)
is directed. In the narrow vernacular of trial procedure, the charges against
the accused have been resolved. But they have not disappeared. The accused
may succeed in showing that the trial was unfair or invalid, and that the
apparent resolution of the charges by the conviction was void. Finally, he or
she hopes, he or she will get the trial he or she was entitled to in the first
place. It would be cold comfort to tell him or her that the intervening delay
in obtaining that trial does not fall under s. 11(b) and stands to be
remedied, if at all, under the more restrictive application of abuse of process
doctrine under s. 7 .
The position of a
person facing an appeal from a stay of proceedings is no better. My colleague
argues that a stay is indistinguishable from an acquittal. If so, I would
respond that like a person acquitted, the person against whom proceedings are
stayed faces a jeopardy which engages s. 11(b). But I doubt that a stay
and an acquittal can be so simply equated. Dickson C.J., speaking for the
Court warned against such an assumption in R. v. Jewitt, [1985] 2 S.C.R.
128, at p. 148:
We
are concerned here with a stay of proceedings because of an abuse of process by
the Crown. While a stay of proceedings of this nature will have the same
result as an acquittal and will be such a final determination of the issue that
it will sustain a plea of autrefois acquit, its assimilation to an acquittal
should only be for purposes of enabling an appeal by the Crown. Otherwise, the
two concepts are not equated. The stay of proceedings for abuse of process is
given as a substitute for an acquittal because, while on the merits the accused
may not deserve an acquittal, the Crown by its abuse of process is disentitled
to a conviction. No consideration of the merits -- that is whether the accused
is guilty independently of a consideration of the conduct of the Crown -- is
required to justify a stay.
In one salient
respect, the person facing an appeal from a stay is in greater jeopardy than a
person who has been acquitted or convicted. He or she has never had any
trial. No witnesses have been called, no evidence committed to public record.
The risk of not being able to bring forward a valid defence when the trial is
finally held may be greater than where one trial, however unfair, has been
held.
In short, the
rights which s. 11(b) seeks to protect are all engaged in the period
between a verdict or a stay and the final disposition of the criminal charges.
Security of the person and the right to liberty are engaged. The acquitted
person, having been found not guilty, faces the prospect of conviction and
incarceration. The person against whom a stay has been entered faces the same
possibility. The convicted person, if the appeal succeeds and the conviction
is found to be invalid, can equally argue that the law's delay in arriving at
that conclusion has deprived him or her of his or her liberty and security of
the person during the appellate interval. The right to a fair trial is engaged
as well. In all three situations, the acquittal, conviction and stay, the
subject of the criminal proceedings faces the prospect of a new trial, whose
fairness may be jeopardized by excessive delay.
The narrow remedy
proposed by my colleague for post-stay, post-verdict delay would not, with
respect, provide a remedy capable of meeting these concerns. He concludes that
s. 7 applies where the delay is so long that it constitutes abuse of process.
The accused would be entitled to a remedy only where he or she could show that
a new trial would be so unfair as to amount to an abuse of the court's
process. I have several problems with this conclusion.
I note parenthetically
that this conclusion begs the question which Wilson J. left open in R. v.
Keyowski, [1988] 1 S.C.R. 657, at p. 661, of the relationship between s. 7
and the doctrine of abuse of process. Accepting, for purposes of argument,
however, Sopinka J.'s conclusion that only post-stay or post-verdict delay
which constitute abuse of process can be remedied under s. 7 , it presents the
following difficulties.
The abuse of
process doctrine is a narrow doctrine which has only on rare occasions provided
a remedy to accused persons caught overlong in the meshes of the criminal
process. Its primary aim is not the rights of the accused person, but the
repute of the system of justice. As Lamer J., as he then was, put it in R.
v. Mack, [1988] 2 S.C.R. 903, at p. 942, in treating entrapment as abuse of
process:
The
issuance of the stay obviously benefits the accused but the Court is primarily
concerned with a larger issue: the maintenance of public confidence in the
legal and judicial process. In this way, the benefit to the accused is really
a derivative one.
Moreover, it has repeatedly been held
that the doctrine of abuse of process should be applied only in the clearest of
cases: R. v. Keyowski, supra, at pp. 659-60. This has been
taken to impose a higher standard of proof than would face an accused relying
on a breach of rights under the Charter : see Bayda C.J. in R. v.
Keyowski (1986), 49 Sask. R. 64 (C.A.). Without definitively ruling on
that question, the fact remains that abuse of process has seldom, in its long
history, served as a remedy for delay in the criminal process. It has been
stringently and sparingly applied. As one author puts it: "while abuse
of process has frequently been argued and its availability increasingly
acknowledged, a remedy for the accused has not readily been forthcoming":
Morgan, "Controlling Prosecutorial Powers -- Judicial Review, Abuse of
Process and Section 7 of the Charter " (1986), 29 Crim. Law Q. 15,
at p. 38. To hold that the only remedy for delay in the criminal process after
the entry of a stay or acquittal is abuse of process would be to create an
anomaly in the law. The rights engaged and the jeopardy experienced are
similar before and after the stay or verdict. Yet before the stay or verdict
one has a full and easily accessed remedy; after, one has only a narrow and
circumscribed hope.
Acceptance of my
colleague's conclusion that s. 11 (b) of the Charter does not
apply to post-stay or post-verdict delay leaves two possible options for
remedying such delay under the Charter . The first is that post-stay and
post-verdict delay are held to be remediable under common law doctrine of abuse
of process under s. 7 . This is the route chosen by Sopinka J. It is, I have
respectfully suggested, too narrow to provide an adequate or just remedy for
many of the circumstances which may result from post-stay, post-verdict delay.
The alternative might be to seek a distinct and broader remedy for such delay
under s. 7 of the Charter . But such an approach should be undertaken
only if the Charter provision expressly aimed at delay in the criminal
process is inapplicable or inappropriate; the law should not be complicated
unnecessarily. I have argued thus far that s. 11 (b) by its wording and
objects is not inapplicable to post-stay, post-verdict delay. I turn now to
the appropriateness from a practical point of view of treating such a delay
under s. 11 (b) of the Charter .
Applying
Section 11(b) to Post-Stay, Post-Verdict Appellate Delay
I have concluded
that not only does the language and context of s. 11(b) not mandate that
it be confined to the pre-stay, pre-verdict period of the criminal process, but
also the objects and goals underlying s. 11(b) suggest that it does
apply to delays after the entry of a stay or a verdict. In this section, I
argue that there is no need from a practical point of view to adopt a complex
two-principle scheme for assessing delay in the criminal process; the same
general principles can and should apply throughout, even though they may impact
differently depending on the particular considerations which arise at different
stages. The reality of the judicial process is that interlocutory, trial and
appellate proceedings may be so intertwined in a given case that it makes
little sense to attempt to apply different legal rules according to the stage
one is at.
The principles
applicable under s. 11(b) have been enunciated in R. v. Morin, supra.
They are: (1) the length of the delay; (2) waiver, if any, of parts of
the delay; (3) the reasons for the delay; and (4) prejudice to the subject of
the criminal process. In my view, these principles are broad and flexible
enough to apply at the post-stay, post-verdict stage of the criminal process.
The length of the
delay must always be taken into account in determining its reasonableness,
whether it be trial delay or appellate delay. It may be less easy to set a
"normal" yardstick in appellate delay, given the need for
deliberation and discussion between members of the panel. But as for delay
before verdict or stay, some delays will clearly be within a normal time
period, some will clearly be egregious, barring explanations, and some, the
most difficult to assess, will lie between the two extremes.
Waiver applies
equally to delay before a stay and verdict and delay after a stay and verdict.
The reasons for the
delay may be similar before and after a stay or a verdict. Overloaded judicial
systems, poor organization, negligence, foot-dragging by the accused -- these
and more may play a role at all stages of the judicial process. But the
reasons for appellate delay include some which do not figure, or do not figure
as importantly, at lower levels. In addition to reaching the just result in
the case before it, an appellate court has a duty to settle and articulate
principles of law which transcend the needs of the particular case. This may
require more preparation, more research, more elaborate reasons and more
discussion and debate among members of the appellate tribunal, and as a
consequence, more time. The fact that a number of people with different views
may be involved in the decision may add to the length of time required to
settle the appeal finally. In some cases, counsel may need more time to
prepare for a case given the complexity of the issues involved. For example,
interveners are often involved at the appellate stage. The proper development
of the law is an important goal which must be pursued, even at the expense of
some additional delay in the case. This must be taken into account in
considering the reasons for the delay.
The final factor
set out in Morin, prejudice to the accused, is relevant both before, and
after, a stay or a verdict has been ordered. What is protected at all stages is
the accused's right to a fair and timely criminal process. As seen above,
stigma, anxiety and restrictions on liberty may adversely affect the subject of
the proceedings after a stay or verdict, just as before. Similarly, the
subject's opportunity to present a full defence at a post-appeal trial may be
adversely affected by post-verdict or post-stay delay. The impact of these
adverse effects on the accused must be put in the balance in determining
whether the delay complained of was reasonable.
This brings me to
the matter of remedy. This Court has held in cases of pre-verdict,
non-appellate delay, that a stay of proceedings is the minimum and generally
appropriate remedy: R. v. Rahey, supra, at p. 614. However,
where a verdict has been entered, a stay may not be appropriate. For example,
a stay of proceedings would be useless to a convicted person complaining of appellate
delay; indeed, it would deny him or her a just remedy by preventing him or her
from proceeding with his or her appeal. The nearest alternative to a stay of
proceedings, quashing the conviction, might seem inappropriate given that one
would be releasing, not a person presumed to be innocent as at the pre-trial
stage, but a convicted felon who has not served his or her sentence. To
release a convicted killer into society, for example, without having served
his or her sentence, solely because the appeal he or she chose to bring took
more time than reasonable, would be to grant a remedy which far outstrips the
wrong and which overlooks the important societal interest in the safety and
security of members of the public. Confronted with these alternatives, a judge
finding unreasonable delay in such a case might wish instead to make a
different order. He or she might order that the appeal be expedited, for
example. Nor would I rule out other remedies such as damages to compensate for
loss of liberty or mental suffering, although I would leave the question of
what remedies may be appropriate for resolution on a case-by-case basis.
The many different
circumstances which may prevail at the post-verdict, post-stay stage require a
flexible approach to remedies. In some cases stays of proceedings may be
appropriate. In other cases, other remedies will necessarily arise for
consideration. The Charter empowers the court to grant such remedies as
may be just in all the circumstances. In selecting a remedy, the judge should
bear in mind such factors as the length and nature of the delay, the
seriousness of the offence, the nature of the injury suffered by the accused
and any prejudice caused to the accused's defence by the delay: see La Forest
J. in R.v. Rahey, supra, at p. 648.
I would be flexible
as to the forum for the remedy. If it appears to the Court of Appeal that the
accused's rights have been violated by excessive pre-verdict and appellate
delay, for example, that court should be able to deal with both types of delay
without sending the new issue of appellate delay back to a judge of first
instance. On the other hand, the subject of a criminal process should not be
prevented from applying to a judge of first instance with respect of any delay,
including appellate delay. The practical reality, as noted earlier, is that
pre-stay, pre-verdict delay and appellate delay are often intertwined and
impact upon each other. To say that only courts of first instance can deal
with the former and only courts of second instance can deal with the latter
would be to unnecessarily truncate and complicate the proceedings.
Application
to this Case
Applying s. 11(b)
to this case, I conclude with my colleague Sopinka J. that unreasonable delay
has not been established. As to the pre-stay delay, while the time period was
long, much of it can be explained by a series of interlocutory proceedings
which were necessary given the complexity of the case. There were thus good
reasons for much of the delay. Waiver is not a factor. As for prejudice, I
agree with the Court of Appeal below that the prejudice that may be inferred
was minimal.
Nor, in my view,
was the post-stay appellate delay unreasonable in this case. The greatest
delay in this period was a gap between June 21, 1991, when the appeal book was
served and January 15, 1992, when the respondent scheduled the hearing.
Thereafter the appeal proceeded with reasonable dispatch, given certain
problems with the unavailability of appellant's counsel for the first hearing
date. However, there is no suggestion that the appellant was prejudiced by any
of this delay, or that he wanted things to move faster. Presumably, he was
content to let the stay stand as long as possible. In these circumstances,
unreasonable delay in the post-stay period is not made out. I note that the
Court of Appeal ordered an accelerated trial, aimed at avoiding any further
delay.
I would dismiss the
appeal.
//La Forest J.//
The following are
the reasons delivered by
La
Forest J. -- I agree with
Justice Sopinka that s. 11 (b) of the Canadian Charter of Rights and
Freedoms does not apply to appellate delay. I find support for this in the
French version of the Charter and in the European Court of Human Rights
judgment in the Wemhoff case, judgment of 27 June 1968, Series A No. 7,
cited by my colleague; see my reasons in R. v. Rahey, [1987] 1 S.C.R.
588, at pp. 632-33. However, I am of the view, given the interrelationship
between ss. 7 and 11 (b), that s. 7 may in certain contexts provide residual
protection to the interests the right under s. 11 (b) is designed to
protect that goes beyond the specific protection it provides; see Thomson
Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive
Trade Practices Commission), [1990] 1 S.C.R. 425. Accordingly, those
interests are also entitled to protection at the appellate level but subject to
the special considerations specific to the appellate process and in consequence
the choice of an appropriate remedy. In particular, a stay should not as often
be used as the appropriate remedy for appellate delay as for trial delay. On
these matters, it will be obvious that I generally share the views of Justice
McLachlin. I also agree with her regarding the appropriate court for considering
delay.
I should say,
however, that I do not share her concerns about a bifurcated system. In
considering delay at the appellate level, I do not see why weight should not be
given to pre-appeal delay, or why a consideration of appellate delay could not
figure in the equation when complaints about delay are raised at trial
following appellate review. Sections 7 and 11 (b) are not mutually
exclusive. The Charter is an organic instrument.
I agree that there
was no unreasonable delay in this case and I would accordingly dismiss the
appeal.
//Sopinka J.//
The judgment of
L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci was delivered by
Sopinka
J. -- This appeal
concerns the application of the constitutional guarantee to be tried within a
reasonable time contained in s. 11 (b) of the Canadian Charter of
Rights and Freedoms . The important question of law to be resolved is
whether s. 11 (b) applies to appellate proceedings.
Facts
The appellant was
charged with criminal negligence causing death in an information sworn on
September 15, 1988. He was released from custody on an undertaking, and on
consent, the matter was adjourned to October 25, 1988. At that time, counsel
for the appellant (not Mr. Greenspan who was counsel before this Court and at
the Court of Appeal) advised the Provincial Court judge that the investigation
was ongoing and that a disclosure brief was not available. At the suggestion
of Crown counsel, the matter was adjourned to November 8, 1988. On November
8, an agent for counsel for the appellant requested an adjournment to permit
defence counsel to arrange a pre‑trial, and the matter was accordingly
adjourned to December 6, 1988.
On December 6,
1988, the charge was further adjourned to January 31, 1989 for a pre‑trial.
Counsel for the appellant estimated that the preliminary hearing would require
five days and that it was likely that a great deal of scientific evidence would
be called at that time. Crown counsel requested that the pre‑trial judge
be permitted to read the Crown brief prior to the pre‑trial. The court
approved this request as consistent with the "usual practice." Trial
counsel for the appellant consented to the request but advised the court that
all of the Crown's scientific reports were not yet available and that this
evidence was crucial to the resolution of the case. He also indicated that the
pre‑trial judge would likely require two days to read the Crown brief.
Both counsel agreed to January 31, 1989 as a date for the pre‑trial
conference.
The pre‑trial
conference was held on January 31, 1989. It was conducted in the pre‑trial
judge's chambers and no transcript is available. However, court resumed once
the pre‑trial had been completed, and counsel for the Crown and defence
spoke to the provincial judge about setting a date for trial or for a
preliminary hearing. The judge indicated that five days would be required for
a preliminary and suggested September or October 1989, subject to counsel's
availability. Because the appellant was not present in court on this date, the
matter was adjourned to February 7, 1989 to set the trial date.
On February 7, 1989
counsel for the appellant advised the court that he would be calling eight or
nine witnesses, in addition to the seven witnesses to be called by the Crown
and that he was prepared to set a date for the first week of October, 1989.
October 2, 1989 through October 6, 1989 were set for the trial or preliminary
hearing. Counsel for the appellant declined to elect a trial or preliminary
hearing for that date because he did not have all the material, which suggests
that some, but not full, disclosure had been made. On February 14, 1989, the
appellant appeared in court and the week of October 2 to 6 was confirmed.
On October 2, 1989
the appellant elected to be tried by a court composed of judge and jury and the
preliminary hearing commenced. On October 5, 1989, the appellant was committed
for trial and re‑elected to be tried by judge alone.
The indictment was
signed on October 20, 1989. On November 7, 1989, the appellant first appeared
in the District Court assignment court. At that time the transcript of the
preliminary hearing had not been completed. It was completed on November 14, 1989.
On November 7, both counsel agreed that a pre‑trial would be worthwhile,
and the court suggested December 13, 1989 as a date for the pre‑trial.
However, counsel for the appellant was not available on that date, and
therefore January 17, 1990 was selected.
On January 17,
1990, Crown counsel was unable to attend the pre‑trial conference due to
a conflicting commitment, and the pre‑trial was adjourned. The date of
February 6, 1990 was chosen as the date upon which a new pre‑trial date
would be set. On that date, May 2, 1990 was chosen as a date for the pre‑trial.
There is no transcript or other evidence to explain why May 2 was selected.
Further, while a secretary at the firm representing the appellant, Kelly Annet,
stated in her affidavit that she had been informed that Crown counsel advised
the court that he wished to have a pre‑trial conference, the affidavit of
the Crown indicates that Crown counsel does not recall whether he wished to
have a pre‑trial conference.
The pre‑trial
conference was held on May 2, 1990. The issues were discussed and the matter
was adjourned to June 5, 1990 to set a date for trial.
At assignment court
on June 5, 1990, defence counsel indicated to the court that the trial would
likely last ten days and that an out‑of‑town judge was required.
According to counsel for the appellant, an out‑of‑town judge was
necessary because all the judges in the jurisdiction knew the family of the
deceased. It is agreed that, in the circumstances, this request was
reasonable. The trial co‑ordinator made it clear that the trial date
would be set and that a judge from outside Sudbury would then be found to
preside at the trial. The date of December 3, 1990 was suggested as an
appropriate date, but defence counsel expressed a preference for a January 1991
date as he had other commitments in December. At defence counsel's suggestion,
the matter was adjourned to July 3, 1990 in order for counsel to make
appropriate arrangements about a date.
During June, 1990,
counsel for the appellant and respondent met with Loukidelis J. in chambers and
agreed to the dates of December 3 to 10 for the trial. The affidavit of Greg
Rodgers, Assistant Crown Attorney, states that "[i]f the matter was
shorter and could be heard by a local Judge a trial date could have been
obtained within 3 months". On July 3, 1990, it was decided that the trial
would proceed on December 3, 1990.
On December 3,
1990, the appellant applied for a stay of proceedings under s. 24(1) of the Charter ,
arguing that his right to be tried within a reasonable time had been
infringed. In the alternative, he sought an order excluding the evidence of a
certain witness on the grounds of late disclosure. On December 4, 1990, the
trial judge stayed the proceedings on the grounds that the right to trial
within a reasonable time in s. 11 (b) of the Charter had been
infringed.
As the respondent
noted in its factum, no motion to adduce fresh evidence regarding appellate
delay was made at the Court of Appeal or before this Court, and no affidavit
evidence regarding this period has been adduced. There is accordingly no
evidence before this Court regarding delay during the appellate period, but for
the purposes of setting out the time frame, the following dates from the factum
of the appellant are accepted as fact. On December 24, 1990, the Attorney
General appealed against the stay of proceedings. The transcript of the
argument and the judgment were served on counsel for the appellant on February
13, 1991, and on June 21, 1991, the appeal book was served. On January 15,
1992, the respondent scheduled the hearing, suggesting that the appeal proceed
on March 13, 1992. Due to the unavailability of counsel for the appellant on
that date, counsel for the respondent proposed various dates commencing April
6, 1992, at which point April 24, 1992 was set as the earliest available date.
The appeal was heard in the Court of Appeal for Ontario on April 24 during
which the issue of appellate delay was raised. On June 22, 1992, the Court of
Appeal allowed the appeal, set aside the stay and remitted the matter for trial
on an expedited basis. On July 30, 1992, the appellant filed his Notice of
Appeal in this Court.
Judgments Below
Ontario Court of Justice -‑
General Division, Stortini
J.
Stortini J. held
that the appellant's s. 11 (b) rights had been violated. He noted that
the total delay in this case was two years and two and a half months from the
first appearance to trial, and that four months passed from the accused's arrest
to the holding of the pre‑trial conference. This latter delay was mostly
due to the then‑existing system which sought to accommodate counsel in
arranging for pre‑trial conferences and could not be attributed solely to
the prosecutor or to systemic or institutional delay. He considered the
argument that the delay was reasonable given the complexities of the case in
terms of scientific evidence, the number of witnesses, the length of the
preliminary hearing and trial, and the fact that an out‑of‑town judge
was required. Noting that complex cases would justify longer delays than would
simple cases, he stated, nonetheless, that lack of institutional resources
should not constitute an acceptable excuse for unreasonable delays. He
concluded that the delay was unreasonable as it was too long and that the
explanations for the delay were either non‑existent or insufficient to
justify the delay.
Ontario Court of Appeal (1992), 74 C.C.C. (3d) 111 (Morden
A.C.J.O and Osborne and Weiler JJ.A.)
Osborne J.A.,
writing for the court, held that the appeal should be allowed. After
identifying waiver as a critical issue in the case, Osborne J.A. focused on two
periods: the seven and one‑half month period preceding the preliminary
hearing, which began on October 2, 1989 and the six‑month period
preceding the trial which began on December 3, 1990. The court concluded that
"waver in the entire period from January 31, 1989 to October 2, 1989, has
not been established." The court did find that the respondent waived his
right to complain of one month of the delay between December 13, 1989 and
January 17, 1990 because he expressed a preference for January 17, 1990 rather
than the scheduled date of December 13, 1989. The court did not find, however,
that the respondent waived his right to complain of the six‑month delay
between June 1990 and December 1990, although counsel for the appellant did
agree to the December trial date. Although there was no evidence before the
court with respect to alternative trial dates, Osborne J.A. concluded that the
December 3 date was likely the first date available for a ten‑day trial.
With respect to the
reasons for the delay, the Court of Appeal concluded that the four‑month
period from the appellant's arrest to the pre‑trial conference was
attributable to delay inherent in the nature of the case, including some intake
delay. Some two months of delay between committal and the first date for the
pre‑trial was also held to be inherent delay. Osborne J.A. was of the
view that neither the Crown nor the accused could be said to be responsible for
much of the delay, except that it was Crown counsel's scheduling problems which
required the pre‑trial to be adjourned from January 17, 1990 to May 2,
1990. The two periods from February 7, 1989 (when the preliminary hearing date
was set) to October 2, 1989 (when the preliminary hearing commenced) and from
June 5, 1990 (when the trial date was set) to December 3, 1990 (when the trial
was to begin) were held to be systemic delay, although it was noted that the
lengthy court times necessary justified a longer delay than would be acceptable
in a simpler case.
With respect to the
issue of prejudice, Osborne J.A. agreed with the trial judge that the
respondent suffered no actual or special prejudice as a result of the delay
from the time the information was sworn in September, 1988 to the time his
trial commenced in December, 1990.
To determine
whether the delay was unreasonable, the Court of Appeal weighed the explanation
for the delay and prejudice to the accused to determine whether the appellant's
constitutional right to be tried within a reasonable time had been breached.
Osborne J.A. noted that this Court had held in R. v. Morin, [1992] 1
S.C.R. 771, that, although prejudice is only one factor to be taken into
account in the balancing process, a conclusion that prejudice was absent or
that it was minimal is significant. The rationale for the pre‑eminent
position given to prejudice was held to be consistent for the purposes of s. 11 (b)
-- to protect the rights of the accused and the dual societal interest in
seeing an accused treated humanely and fairly and in seeing those accused of
crimes be brought to trial.
Weighing all the
factors, Osborne J.A. found that the delay was not unreasonable. He concluded
that the prejudice that may be inferred was minimal, and that there was nothing
on the record to suggest that the respondent ever sought an earlier date for the
pre‑trials, the preliminary hearing or the trial. While noting that
"there may be a fine line between acceptance of the inevitability of the
pace of proceedings and contentment with the speed of the process",
Osborne J.A. held that the guidelines set out in Morin do not establish
a limitation period and that a balancing of all aspects of the delay in this
case led to the conclusion that the delay was not unreasonable.
Osborne J.A.
therefore ordered that the appeal should be allowed, the stay set aside and
remitted the matter for trial, on an expedited basis.
The Issues
There are two
issues: (1) was the delay preceding the end of the trial unreasonable so as to
offend the provisions of s. 11 (b) of the Charter ; and (2) does s.
11 (b) apply to the delay in respect of the appellate proceedings?
Pre‑trial Delay
The facts relating
to this issue were reviewed in detail in relation to the principles expressed
by this Court in R. v. Morin, supra, by Osborne J.A. in the Court
of Appeal. Bearing in mind the approach to review of appellate judgments in
respect of the application of s. 11 (b) adopted by this Court in R. v.
Stensrud, [1989] 2 S.C.R. 1115, I would adopt the conclusions and reasons
of Osborne J.A. and dismiss this ground of appeal.
Appellate Delay
This issue was
raised in the Court of Appeal but was not dealt with. I have concluded that s.
11 (b) does not apply to delay in respect of an appeal from conviction by
the accused nor an appeal from an acquittal by the Crown. Moreover, in my
opinion, there is no distinction in this regard between an acquittal after
trial and a judicial stay.
Section 11 of the Charter
is to be interpreted in a manner that harmonizes as much as possible all of its
subsections. In R. v. Lyons, [1987] 2 S.C.R. 309, at p. 353, La Forest
J., for the majority, stated:
As I
observed in Canada v. Schmidt, [1987] 1 S.C.R. 500, the phrase "Any
person charged with an offence" in the opening words of the section must
be given a constant meaning that harmonizes with the various paragraphs of the
section. It seems clear to me that for the purposes of s. 11 it would be quite
inappropriate to conclude that a convicted person is charged with an offence
when confronted with a Part XXI application. How can it be said that the right
to the presumption of innocence until proven guilty (s. 11 (d))
and the right to bail (s. 11 (e)), for example, could have any
application in the context of the unique post‑conviction proceeding
mandated by Part XXI? [Emphasis in original.]
Many of the rights
found in s. 11 cannot apply to appeals and are restricted to the pre‑trial
or trial process. If "[a]ny person charged" in s. 11 (b)
necessarily includes the accused as a party to an appeal then the same
conclusion would have to apply to the other subsections of the section. An
examination of the various subsections shows s. 11 (a), (c), (f)
and (i) clearly do not apply to appeals. Section 11 (e) could not
apply to an appellant who has been acquitted and other subsections are
primarily concerned with what occurs at trial although exceptionally they might
have some application on appeal.
I conclude from the
foregoing that as a general rule "[a]ny person charged" under s. 11
does not include an accused person who is party to an appeal. A particular
subsection may apply to appeal proceedings as an exception to the general rule
if its purpose and language support this conclusion. After considering the
purpose and language of s. 11 (b), I have concluded that the
interpretation that gives effect to both of these elements and best harmonizes
the other subsections is that the subsection applies to the pre‑trial
period and the trial process but not to appellate proceedings. While I am
uncomfortably aware that I expressed a different view in my dissenting reasons
in R. v. Conway, [1989] 1 S.C.R. 1659, I have come to this conclusion in
light of the considerable additional judicial experience of this Court in the
application of s. 11 (b) since the judgment in Conway. In
particular, I refer to the judgment in R. v. Kalanj, [1989] 1 S.C.R.
1594, and cases that followed it as to the purpose of s. 11 (b).
The general objects
and purposes of s. 11 (b) were recently re‑stated in R. v. Morin,
supra, as follows at p. 786:
The
individual rights which the section seeks to protect are: (1) the right to
security of the person, (2) the right to liberty, and (3) the right to a fair
trial.
The
right to security of the person is protected in s. 11 (b) by seeking to
minimize the anxiety, concern and stigma of exposure to criminal proceedings.
The right to liberty is protected by seeking to minimize exposure to the
restrictions on liberty which result from pre‑trial incarceration and
restrictive bail conditions. The right to a fair trial is protected by
attempting to ensure that proceedings take place while evidence is available
and fresh.
If these purposes
and objects were embodied in s. 11 (b) without restriction, it would be
difficult to argue that the section had no application to appeals. The section
has, however, been interpreted in a manner that does not extend its protection
of these interests against the consequences of delay at large, but only from
the consequences of delay flowing from a formal charge. Short of a formal
charge, similar consequences proceeding from other aspects of governmental
activity in the criminal process do not trigger the protection of the
provision. Accordingly, in Kalanj, supra, this Court dealt with
a situation in which the accused were arrested after a lengthy investigation.
On the day of the arrest the accused were fingerprinted and released but were
advised not to leave town, that they would be charged and that a summons would
issue. More than eight months later charges were laid. This Court was invited
to hold that, because of the involvement of the interests that underlie s. 11 (b),
it should extend to the pre‑charge delay. The invasion of the interests
protected by s. 11 in the broad sense could certainly be equated to the
consequences of a charge. The stigma and anxiety resulting from arrest and
fingerprinting would exceed the consequences flowing from laying of a charge
followed by a summons. The restraint on liberty was the equivalent to that
which occurs when a charge is laid and the accused is released on bail. The
pre‑trial delay has the same effect on the freshness of the evidence as
post‑charge delay. Nonetheless, this Court held that the accused were
not persons charged until a formal charge was laid and that s. 11 (b) did
not apply. This judgment has been applied to rule out review of pre‑charge
delay unless the accused can establish a breach under s. 7 . See R. v. L.
(W.K.), [1991] 1 S.C.R. 1091.
It follows from Kalanj
that s. 11 (b) does not apply unless the restriction of the interests
which the subsection protects results from an actual charge. Circumstances
which produce the same consequences do not qualify for the protection of this
provision unless those consequences proceed from a formal charge. The question
which is in issue in this appeal is whether the consequences of delay resulting
from an appeal from acquittal or conviction are distinguishable from pre‑charge
delay and can be attributed to the existence of a formal charge.
Clearly, during the
period after an acquittal and the service of a notice of appeal, the person
acquitted is not a person charged. No proceeding is on foot which seeks to
charge the person acquitted. Upon the appeal's being filed there is a possibility,
the strength of which will vary with each case, that the acquittal will be set
aside and the charge will be revived. The plight of the acquitted person is
that of one against whom governmental action is directed which may result in a
charge. In this respect the former accused is like the suspect against whom an
investigation has been completed and charges are contemplated awaiting a
decision by the prosecutor. Indeed the acquitted accused is somewhat more
removed from the prospect of being subject to a charge than the suspect. In
the former case, no charge can be revived until the acquittal is set aside by
reason of an error of law that a court determines with a reasonable degree of
certainty affected the decision at trial. In the latter case, all that stands
between the suspect and a charge is the ex parte decision of the
prosecutor. It would be incongruous to extend protection to the acquitted
accused pending appeal and not to the suspect awaiting a charge who knows he or
she is awaiting the decision of the prosecutor.
There is even less
reason to extend the protection of s. 11 (b) to a convicted person who
appeals. The appeal itself is not governmental action. In R. v. CIP Inc.,
[1992] 1 S.C.R. 843, Stevenson J. stated for the Court, at pp. 864‑65:
We
are reviewing the decision that was made on November 1, 1988. The delay after
that motion was granted is appellate delay. The bulk of that delay is
attributable to the appellant's decision to pursue appeals. The appellant
invoked the processes of which it now complains and must accept the burdens
inherent in full appellate review. There is no evidence or argument to support
a finding that some extraordinary factor lengthened that review process.
The delay due to some extraordinary
factor referred to by Stevenson J. would not be attributed to the fact that the
accused was a person charged but rather to the conviction. A convicted person
is not a person charged. See Lyons, supra, at p. 353. The
effect of such an extraordinary factor would fall to be assessed under s. 7 in
light of its impact on the fairness of the proceedings.
This discussion has
focused on the interpretation of the words "[a]ny person charged" in
s. 11 (b) in the context of the purpose of the subsection. The
conclusion that those words limit the operation of the subsection to the trial
process is supported by the use of the word "tried". It would seem
that if it was intended that the subsection apply not only to the trial but
also to final adjudication, more apt wording would have been employed. This is
illustrated by the decision of the European Court of Human Rights, Wemhoff
case, judgment of 27 June 1968, Series A No. 7. The court dealt with two
sections of the Convention: s. 5(3) and s. 6(1). The former provided that
"[e]veryone ... shall be entitled to a trial within a reasonable
time. . ." while the latter provided that "In the
determination . . . of any criminal charge against him, everyone is
entitled to a fair and public hearing . . .". The court
held that the former section extended only to the trial while the latter
extended to the final determination even if this was on appeal. No doubt this
language was before the framers of the Charter , and the selection of the
more limiting term is significant.
This does not mean
that when there is an adjudication relating to a charge which is appealed, s.
11 (b) is spent. If on the appeal the judgment is set aside and the
matter is remitted for trial, the accused reverts to the status of a person
charged. As stated by D.H. Doherty (now a justice of the Court of Appeal for
Ontario) in "More Flesh on the Bones: The Continued Judicial
Interpretation of s. 11 (b) of the Canadian Charter of Rights and
Freedoms " (1984), Canadian Bar Association ‑ Ontario; Annual Institute
on Continuing Legal Education, at p. 9:
Section
11 (b) does not appear to operate at the appellate stage. Section 11 (b)
guarantees a trial within a reasonable time, not a final determination of the
matter at an appellate level within that time. If, however, a new trial is
ordered on appeal, or some other order is made directing the continuation of
the trial proceedings, the constitutional clock should be rewound at the time
of the order by the appellate court.
A similar
conclusion was reached by the Supreme Court of the United States. In United
States v. Loud Hawk, 474 U.S. 302 (1986), it was argued that the speedy
trial guarantee in the 6th Amendment applied to an appeal by the government
from a dismissal of charges prior to a trial on the merits by reason of
excessive delay in prosecuting the charges. The court stated, at pp. 311-12:
During
much of the litigation, respondents were neither under indictment nor subject
to bail. Further judicial proceedings would have been necessary to subject respondents
to any actual restraints . . . . As we stated in MacDonald:
"(W)ith no charges outstanding, personal liberty is certainly not impaired
to the same degree as it is after arrest while charges are pending. After the
charges against him have been dismissed, `a citizen suffers no restraints on
his liberty and is (no longer) the subject of public accusation: his situation
does not compare with that of a defendant who has been arrested and held to
answer'." . . .
Respondents
argue that the speedy trial guarantee should apply to this period because the
Government's desire to prosecute them was a matter of public record. Public
suspicion, however, is not sufficient to justify the delay in favour of a
defendant's speedy trial claim. We find that after the District Court
dismissed the indictment against respondents and after respondents were freed
without restraint, they were "in the same position as any other subject of
a criminal investigation" . . . . The Speedy Trial
Clause does not purport to protect a defendant from all effects flowing from a
delay before trial. The Clause does not, for example, limit the length of
a preindictment criminal investigation even though "the (suspect's)
knowledge of an ongoing criminal investigation will cause stress, discomfort,
and perhaps a certain disruption in normal life." [Emphasis added.]
The American courts
do not appear to resort to judicial stays but rather dismiss the charges with
or without prejudice. The former is the equivalent to a judicial stay and the
charges cannot be relaid unless the order dismissing charges is overturned on
appeal. The latter allows the charges to be relaid without further judicial
action. While the speedy trial provisions of the 6th Amendment apply to
appeals from interlocutory orders which do not dismiss the charges, the remedy
for appellate delay when charges are dismissed with prejudice lies in the due
process guarantee in the 14th Amendment. See: Simmons v. Reynolds, 898
F.2d 865 (2nd Cir. 1990), at p. 868; United States v. Antoine, 906 F.2d
1379 (9th Cir. 1990), at p. 1382; United States v. Kimmons, 917 F.2d
1011 (7th Cir. 1990), at pp. 1013-15; Burkett v. Cunningham, 826 F.2d
1208 (3rd Cir. 1987), at p. 1221; DeLancy v. Caldwell, 741 F.2d 1246
(10th Cir. 1984), at p. 1248; United States v. Johnson, 732 F.2d 379
(4th Cir. 1984), at pp. 381‑83; United States v. Pratt, 645 F.2d
89 (1st Cir. 1981); Rheuark v. Shaw, 628 F.2d 297 (5th Cir. 1980), at
pp. 300‑4 certiorari denied 450 U.S. 931 (1981); Roque v.
Puerto Rico, 558 F.2d 606 (1st Cir. 1976); People v. Cousart, 444
N.E.2d 971 (N.Y. 1982).
The conclusion I
have reached applies to appeals from acquittals and convictions. Furthermore,
I see no valid reason to distinguish between an acquittal on the merits and a
judicial stay. In light of the interest protected under s. 11 (b), the
differences between an acquittal and a judicial stay are purely technical. In
both cases the accused can plead autrefois acquit and no proceedings may
be brought in respect of the same charge unless the acquittal or stay is set
aside on appeal. No restraints can be placed on the liberty of the former
accused pending appeal. There is no basis on which to assume that the
theoretical existence of a charge that has been stayed carries any greater
stigma or causes greater anxiety to the respondent in an appeal from a judicial
stay than an appeal from acquittal. Certainly there is no evidence on this
point. I doubt that the public understands the difference. An unpopular
acquittal generates as much public indignation as a stay. The degree of
anxiety is dictated more by the strength of the grounds of appeal than by the
form of the verdict. These observations were neatly summed up by Estey J. in Amato
v. The Queen, [1982] 2 S.C.R. 418, at p. 457:
While
the charge may be said to hang over the head of the accused, this is a wholly
theoretical observation because there is no forum for its further processing.
The Application of Section 7
This conclusion
does not leave the criminal appellant or respondent without a remedy when delay
of appeal proceedings affects the fairness of the trial. While s. 11(b)
does not apply, s. 7 may in appropriate circumstances afford a remedy. In R.
v. L. (W.K.), supra, this Court held that, in respect of pre‑charge
delay, if the particular circumstances of the case indicated that the fairness
of the trial had been affected by the delay, s. 7 can be resorted to. This is
simply the application to delay of the court's power to remedy an abuse of
process which is enshrined in s. 7 as a principle of fundamental justice. The
general principle was expressed in R. v. Jewitt, [1985] 2 S.C.R. 128, at
pp. 136‑37. Dickson C.J. adopted the following passage from the judgment
of Dubin J.A. (as he then was) in R. v. Young (1984), 40 C.R. (3d) 289,
at p. 329:
...
there is a residual discretion in a trial court judge 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.
This test has been reaffirmed in R.
v. Keyowski, [1988] 1 S.C.R. 657.
In addition to s.
7, the criminal appeal rules and provisions of the Criminal Code afford
a litigant in a criminal appeal a range of remedies at virtually every stage of
the appellate proceeding. This enables a party interested in a timely
disposition of the appeal to eliminate any substantial delay on the part of the
adversary. As for systemic delay, resort can be had to s. 7 in the cases in
which real prejudice is occasioned.
This raises the
issue of the appropriate forum for a remedy pursuant to s. 7 with respect to
appellate delay. In R. v. Gallagher, [1993] 2 S.C.R. 000, counsel for
the respondent submitted that an appellate court should not decide matters of
first instance which may require factual determinations. While neither
solution is perfect I am of the opinion that the appropriate forum is the court
in which the delay occurred. That court is in the best position to assess the
consequences of delay. Moreover, this approach avoids the necessity of a
referral back of the issue to a trial court whenever a serious case of delay is
made out. In addition, it avoids the awkwardness inherent in a lower court's
passing upon proceedings in a higher court which the latter must then review.
While, generally matters of first instance are not decided in an appellate
court the nature of the issues and the material in support would not be
radically different from the issues and material in other motions which an
appellate court is called upon to decide. If a further appeal lies from the
first appellate court, the issue of delay can be reviewed in the second
appellate court along with the consequences of additional delay resulting from
the second appeal. As with other issues in appeal, this Court does not favour
issues being raised for the first time in an appeal to this Court.
Application to this case
No evidence was
offered nor was any attempt made in this appeal to show that any real prejudice
resulted from the appellate delay. Counsel for the appellant quite properly
conceded that no breach of s. 7 could be made out and I find none. The appeal
is therefore dismissed.
Appeal dismissed.
Solicitors for the
appellant: Greenspan, Humphrey, Toronto.
Solicitor for the
respondent: Attorney General for Ontario, Toronto.