R. v. MacDougall, [1998] 3 SCR 45

R. v. MacDougall, [1998] 3 S.C.R. 45

Her Majesty The Queen                                                                   Appellant

v.

Patrick Arnold MacDougall                                                              Respondent

Indexed as:  R. v. MacDougall

File No.:  25931.

1998:  May 21; 1998: October 29. 

Present:  Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Major and Bastarache JJ.

on appeal from the prince edward island supreme court, appeal division

Constitutional law ‑‑ Charter of Rights  ‑‑ Trial within reasonable time ‑‑ Sentencing delay ‑‑ Judicial illness ‑‑ Sentencing delay primarily due to prolonged illness of trial judge ‑‑ Whether right to be tried within reasonable time applies to sentencing ‑‑ Principles applicable for proper characterization of delay related to judicial illness ‑‑ Point at which delay in sentencing related to trial judge’s illness violates right to be tried within reasonable time ‑‑ Canadian Charter of Rights and Freedoms, s. 11(b) .

On December 2, 1994, the accused was charged with indecent assault.  At his first appearance on January 16, 1995, he requested an adjournment for election and plea.  On February 13, he pled not guilty.  On April 5, he changed his plea to guilty.  The matter was then adjourned for the preparation of a pre‑sentence report.  The Crown subsequently requested two extensions.  On July 14, the case was suspended indefinitely because of the trial judge’s illness.  The trial judge eventually resigned on April 15, 1996, and on May 21 the Crown requested that a new judge be assigned to sentence the accused.  The new judge was assigned the next day.  The accused did not appear for sentencing on June 13.  He was later arrested and on July 11 appeared before the new judge.  The matter was adjourned until September 24 for a defence motion to have the charges stayed.  On that date, the new judge granted the motion, holding that the approximately 22‑month delay which occurred between the laying of the charge and the hearing for a stay violated s. 11( b )  of the Canadian Charter of Rights and Freedoms . The Court of Appeal dismissed the Crown’s appeal.

Held:  The appeal should be allowed and the case remitted to the trial court for sentencing.

(1) Whether the right to be tried within a reasonable time extends to sentencing

The right to be tried within a reasonable time under s. 11( b )  of the Charter  includes the right to be sentenced within a reasonable time.  Both the wording of s. 11(b) and the interests it protects support this conclusion. Section 11 comprises a wide range of rights which protect the accused from the moment he or she is first charged with an offence to the final resolution of the matter, including sentencing.  While s. 11 protection is triggered when a person is “charged with an offence”, the specific rights available to an individual who has been charged with an offence vary with the stage of proceedings.  Section 11 provides for different forms and levels of protection for each stage of the criminal process.  It follows that “charged with an offence” cannot be restricted to a particular phase of the proceedings.  Rather, what is required is an interpretation that harmonizes as much as possible all of the subsections of s. 11 and the various rights they provide.  Textually, the only feasible interpretation of “charged with an offence” in s. 11 is an expansive one which includes both the pre‑conviction and post‑conviction periods.  In the context of s. 11(b), the phrase “charged with an offence” is not confined to the  period before conviction but also extends to the post‑conviction sentencing stage.  A purposive reading of s. 11(b) also suggests that the phrase “tried within a reasonable time” in that section is capable of extending to the sentencing process.  Furthermore, the interests protected by s. 11(b) are relevant at both the pre‑conviction and post‑conviction stages.  Delay in sentencing may prejudice an accused’s s. 11(b) interests, which include a liberty interest, a security interest, and a fair trial interest.  It can also impact negatively on society’s interests in a speedy trial and in ensuring that those on trial are dealt with fairly and justly.

(2) Whether the sentencing delay was unreasonable

Whether delay in sentencing amounts to a violation of s. 11(b) depends on whether the delay was unreasonable considering the length of the delay, the reasons for the delay, the effect of any waivers of delay and the prejudice suffered by the accused.  An accused who enters a guilty plea does not waive his s. 11(b) rights.

Where the trial judge falls ill and is expected to return, the Crown must balance two competing factors:  (1) the need to proceed with the utmost care and caution when considering the removal of a judge seized with a case in order to protect judicial independence and fairness to the accused, and (2) the need to protect the accused’s s. 11(b) rights and prevent undue prejudice to the accused.  The Crown must determine whether the apprehension of a violation of the accused’s s. 11(b) rights has reached the stage where it outweighs the general rule that the judge seized of a case should conclude it.  Where the apprehension of a s. 11(b) violation outweighs this general rule, the Crown has a duty to apply to remove and replace the seized judge. In light of the balancing which the Crown must undertake, delay related to a judge’s illness can be characterized as inherent delay, Crown delay or systemic delay, depending on the circumstances of  the case.  Delay related to judicial illness which takes places in the period before it is reasonable for the Crown to apply to have the judge removed is inherent delay and is not counted against the Crown. Delay which occurs after the point when it is reasonable for the Crown to apply to have the judge removed is Crown delay.  Delay in replacing a judge which transpires after the point when it is reasonable for the Crown to apply to have the judge removed due to lack of judicial resources is institutional or systemic delay, counting against the Crown if the lack of resources is unreasonable having regard to the particular pressures on the court system at issue.

The approximately 22‑month period between the laying of the charge and the hearing for a stay was excessive and meets the threshold test requiring the courts below to examine whether the delay was unreasonable under s. 11(b).  In this case, the delay was not unreasonable.  The courts below mischaracterized the delay relating to the trial judge’s illness  by wrongly considering it attributable to the Crown.  The Crown only bears responsibility for the two‑month delay resulting from its requests for extensions in order to prepare the pre‑sentence report, and for the one‑month period between the trial judge’s resignation and the request for the assignment of a new judge.  The accused is responsible for the two‑month delay resulting from his request for an adjournment for election and plea and for his failure to appear at the sentencing hearing.  The remaining 16 and one‑half months of delay are attributable to the inherent time requirements of the case, including the nine months of delay relating to the trial judge’s illness. On the justifiable assumption that the trial judge would return, the Crown proceeded in accordance with the general rule that an accused should be sentenced by the judge who took the plea or presided at the conviction phase of the trial. The Crown had no information suggesting that the trial judge would not be returning, or that his absence would be unduly lengthy.  It was only upon the trial judge’s announcement of his retirement that it became apparent he would not return.  The nine‑month delay occurred in the post‑conviction phase of proceedings when the interests engaged by s. 11(b) were more attenuated, in the circumstances, than in the pre‑conviction phase.  Furthermore, there was no indication that the delay would cause the accused any significant prejudice.  In these circumstances, it cannot be concluded that the Crown erred in not moving prior to the trial judge’s resignation to remove and replace him.  This leaves a net Crown delay of three months for consideration under s. 11(b).  While longer than one might wish, this delay is not egregious.  Nor does the evidence suggest that the delay unduly prejudiced the accused.

Cases Cited

Distinguished:  R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Jones, [1994] 2 S.C.R. 229; referred to:  R. v. Gallant, [1998] 3 S.C.R. 80; R. v. Bosley (1992), 59 O.A.C. 161; R. v. Kalanj, [1989] 1 S.C.R. 1594; R. v. Head, [1986] 2 S.C.R. 684; Wilband v. The Queen, [1967] S.C.R. 14; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Grant, [1951] 1 K.B. 500; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Morin, [1992] 1 S.C.R. 771; Gonzales v. State, 582 P.2d 630 (1978); Dickey v. Florida, 398 U.S. 30 (1970); Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Allen (1996), 1 C.R. (5th) 347; R. v. Stensrud, [1989] 2 S.C.R. 1115; R. v. Trudel, [1992] R.J.Q. 2647.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , s. 11 .

Authors Cited

Hogg, Peter W.  Constitutional Law of Canada, 4th ed.  Scarborough, Ont.:  Carswell, 1997.

Mitchell, Graeme G.  “Potvin:  Charter ‑Proofing Criminal Appeals” (1993), 23 C.R. (4th) 37.

Renke, Wayne.  “Deferring Delay:  A Comment on R. v. Potvin” (1994), 5 Constitutional Forum 16.

APPEAL from a judgment of the Prince Edward Island Supreme Court, Appeal Division (1997), 147 Nfld. & P.E.I.R. 193, 459 A.P.R. 193, 6 C.R. (5th) 228, [1997] P.E.I.J. No. 11 (QL), dismissing the Crown’s appeal from an order of FitzGerald Prov. Ct. J. staying proceedings against the accused.  Appeal allowed.

Valerie A. Moore, for the appellant.

W. Kent Brown, Q.C., and Thane A. MacEachern, for the respondent.

The judgment of the Court was delivered by

//McLachlin J.//

McLachlin J. --

I.  Introduction

1                                   This appeal and the companion appeal,  R. v. Gallant,  [1998] 3 S.C.R. 80,  raise two legal issues: (1) whether the right to be tried within a reasonable time under s. 11( b )  of the Canadian Charter of Rights and Freedoms  includes the right to be sentenced within a reasonable time, and (2) the proper characterization of delay related to judicial illness under s. 11(b).  The respondent’s sentencing was delayed due to the prolonged illness of the trial judge.   When the trial judge ultimately resigned, the Crown requested that a new judge be assigned to the case and attempted to proceed with sentencing.   The respondent then applied for and was granted a stay of proceedings.  The Prince Edward Island Court of Appeal upheld the stay.  The question is whether it erred in doing so.

2                                   I conclude that the right to be tried within a reasonable time extends to sentencing.  However, in light of the circumstances of these cases and the nature of the delay which transpired, I am of the view that the delay was not unreasonable.  I would allow the appeal and remit the case to the trial court for sentencing.

II.  Facts

3                                   MacDougall was charged on December 2, 1994, with one count of indecent assault.  The charge related to an incident which was alleged to have taken place in 1973.  He appeared before Plamondon Prov. Ct. J. on January 16, 1995, and requested an adjournment for election and plea.  An adjournment was granted until February 13, 1995.  On February 13, 1995, he appeared and entered a plea of not guilty.  On April 5, 1995, MacDougall changed his plea to guilty and, because a pre-sentence report was requested, the matter was adjourned.  The Crown subsequently requested two extensions, to which MacDougall did not object.  On July 14, 1995, the case was adjourned indefinitely due to the illness of Plamondon Prov. Ct. J.  Judge Plamondon resigned on April 15, 1996.

4                                   On May 21, 1996, Crown counsel wrote to Chief Provincial Court Judge Thompson, requesting that a judge be assigned to sentence MacDougall.  FitzGerald Prov. Ct. J. was assigned on May 22, 1996.  Sentencing was to take place on June 13, 1996, but MacDougall did not appear.  A warrant for his arrest was issued, and MacDougall was arrested on July 5, 1996.  On July 11, 1996, he appeared to set a date for sentencing.  The matter was adjourned until September 24, 1996, however, in order for MacDougall’s s. 11(b) motion to be heard.  On September 24, 1996, FitzGerald Prov. Ct. J. granted MacDougall’s motion for a stay of proceedings based on a s. 11( b )  Charter  violation because of the delay in sentencing.  The Crown’s appeal to the P.E.I. Court of Appeal was dismissed, and the Crown appeals to this Court by leave granted July 3, 1997, [1997] 2 S.C.R. xiv.

III.  Statutory Provisions

5                                   Canadian Charter of Rights and Freedoms 

11.  Any person charged with an offence has the right

(a)  to be informed without unreasonable delay of the specific offence;

(b)  to be tried within a reasonable time;

(c)  not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d)  to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e)   not to be denied reasonable bail without just cause;

(f)  except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g)  not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h)  if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i)  if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

IV.  Judgments Below

A.  Prince Edward Island Provincial Court                                      

6                                   FitzGerald Prov. Ct. J. heard the applications for stays of proceedings in this case and in Gallant together, and provided one set of reasons for the two cases.  He concluded that a trial, as considered under s. 11(b),  “includes all of the various phases of a trial including the sentencing process”.  In his view, though “it is more important ... for the fact-finding aspect of a trial to proceed expeditiously than it is for the sentencing aspect of a trial to proceed expeditiously”, s. 11(b) applies to both stages.  FitzGerald Prov. Ct. J. found that the sentencing delay in both cases violated s. 11(b) as the delay was mainly attributable to the Crown’s failure to take steps to have the cases reassigned once the first judge became indefinitely unavailable.  He ordered a stay in each case as a remedy for the violations.

B.                Prince Edward Island Supreme Court, Appeal Division (1997), 147 Nfld.         & P.E.I.R. 193

7                                   The Prince Edward Island Court of Appeal,  per Mitchell J.A., dismissed the Crown’s appeal.  Relying on the decision of the Ontario Court of Appeal in R. v. Bosley (1992), 59 O.A.C. 161, Mitchell J.A. concluded that s. 11(b) includes the right to be sentenced within a reasonable time.  In his view, s. 11(b) was violated both in this case and in Gallant, and FitzGerald Prov. Ct. J. was correct in granting stays.

V.                Issues

8                                   (1)   Does the s. 11(b) right to be tried within a reasonable time apply to sentencing?

(2)   When does delay in sentencing related to a judge’s illness violate s. 11(b)?

VI.              Analysis

A.                Does Section 11(b) Apply to Sentencing?

(1)   The Wording of Section 11(b)

9                                   Section 11(b) provides that “[a]ny person charged with an offence has the right . . . to be tried within a reasonable time” (emphasis added).  Thus, there are two questions to be answered in determining whether the wording of the section extends to sentencing:  (1) is a person who has pleaded guilty or who has been found guilty “charged with an offence”; and (2) is sentencing part of the process of being “tried”?

(a)   Does the Phrase “Charged with an Offence” Extend to the Sentencing                Process?

10                               Section 11  of the Charter  comprises a wide range of rights which protect the accused from the moment he or she is first charged with an offence to the final resolution of the matter, including sentencing.  The rights contained under s. 11 accompany the accused through his or her journey through the criminal process and provide different forms and levels of protection for each stage of proceedings.  Some of the rights, like the right to be informed of the offence for which one was detained (s. 11(a)),  apply in the pre-conviction stage.  Some, like the right to trial by jury (s. 11(f)), focus on the trial of guilt.  Some, like the presumption of innocence (s. 11(d)),  and the right to bail (s. 11(e)), apply from arrest to conviction.  Still other rights, protecting against double jeopardy (s. 11(h)) and post-offence sentence increases (s. 11(i)),  arise only after a verdict has been rendered.

11                               All of these rights inhere in a person “charged with an offence”.   It follows that “charged with an offence” cannot be restricted to a particular phase of the criminal process.  Rather, what is required is an interpretation that “harmonizes as much as possible” all of the subsections of s. 11:  R. v. Potvin, [1993] 2 S.C.R. 880, at p. 908,  per Sopinka J. for the majority.  Textually, the only feasible interpretation of “charged with an offence” is an expansive one which includes both the pre-conviction and post-conviction periods.

12                               This interpretation of “charged with an offence” is supported by academic commentary.  Renke advocates a broad and generous approach to both “charged with an offence” and “tried”:  W. Renke, “Deferring Delay:  A Comment on R. v. Potvin” (1994), 5 Constitutional Forum 16.  Mitchell endorses reading “charged with an offence” as encompassing all persons subject to the power of the criminal process:  G. G. Mitchell, “Potvin:  Charter-Proofing Criminal Appeals” (1993), 23 C.R. (4th) 37, at p. 40.  This interpretation, he notes, “exemplifies a generous and purposive reading of s. 11” (p. 40).  In his view, such an interpretation is also “consistent with the reasoning and effect” of this Court’s decision in R. v. Kalanj, [1989] 1 S.C.R. 1594, in which the Court held that s. 11 is engaged once an information is sworn or a direct indictment is laid.

13                               An interpretation of “charged with an offence” that extends to sentencing is further supported by the fact that the charges against an accused person remain unconcluded until he or she is released from the power of the prosecutorial arm of the law.  Indeed, the trial judge retains a narrow discretion to re-open the verdict until sentencing is concluded:  see, e.g., R. v. Head, [1986] 2 S.C.R. 684,  per Lamer J. (as he then was).

14                               Against this interpretation of “charged with an offence”, the Crown raises  comments made by this Court in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 350, and in Potvin, supra, at p. 911.  With respect, those cases do not resolve the issue now before the Court.  

15                               In Lyons, it was argued that the dangerous offender provisions of the Criminal Code  offended the s. 11(f) guarantee of the right to a trial by jury where the maximum punishment is imprisonment for five years or more.  In response, La Forest J., for the majority, cited with approval Fauteux J.’s comments in Wilband v. The Queen, [1967] S.C.R. 14, at p. 20, that dangerous offender proceedings “do not involve the conviction of an offence, but the determination of the sentence which may be pronounced after conviction”:  Lyons, supra, at p. 353.  Since the right to a jury trial can apply only to the pre-conviction stage, it follows that this right does not apply at the post-conviction stage of determining whether a convicted person should be labelled a dangerous offender.  La Forest J. went on to state that it would be “inappropriate” to conclude that a person subject to dangerous offender proceedings is a person “charged with an offence” under s. 11 since some rights, like the presumption of innocence (s. 11(d)) and the right to bail (s. 11(e)), cannot apply at the post-conviction stage (at p. 353).  However, to confine “charged with an offence” to situations where s. 11(d) and s. 11(e) apply, would be to rob other subsections like s. 11(h) and s. 11(i) of any force.  Nowhere does La Forest J. state that he would go so far as to find that “charged with an offence” can never extend to the post-conviction stage, as required by s. 11(h) and s. 11(i). 

16                               It may be that, depending on the subsection at issue, “charged with an offence” in s. 11 bears different meanings.   “Charged with an offence” may refer to the acts of swearing an information to a justice or laying an indictment as a trigger for the protections contained in s. 11.  “Charged with an offence”, in turn, may also describe the status of an individual who, once the information has been sworn or the indictment laid, is the subject of criminal  proceedings.  The s. 11 rights available to an individual who falls under this meaning of “charged with an offence” will vary with the stage of proceedings.  Different rights will attach to the individual as he or she moves through the criminal proceedings.  For example, the right to trial by jury  encompassed within s. 11(f) is not available to an accused person at the post-conviction stage of proceedings, just as the rights protecting against double jeopardy (s. 11(h)) and post-offence sentence increases (s. 11(i)) are only available once the post-conviction stage of proceedings has been reached.  This may be what Sopinka J. had in mind when he asserted that the meaning of “charged with an offence” must be determined in the context of the purpose and language of the particular subsection at issue:  Potvin, supra, at p. 908.

17                               The Crown also argues that comments made by this Court in Potvin, supra, suggest that “charged with an offence” under s. 11(b) should not extend to sentencing.  In Potvin, the majority of this Court held that s. 11(b) does not apply to appellate proceedings.   Sopinka J. reasoned that an acquittal ends the proceeding and terminates the charge.   A subsequent appeal proceeding raises only the possibility that the charge will be revived and does not in fact reinstate it.  As such, the acquitted individual awaiting appeal proceedings  is not “charged” with “an offence”.   Rather, the acquitted person is in the same position as a person against whom an investigation has been completed and charges are being contemplated.  This situation is very different from that of a convicted person awaiting sentence, where the sentence which corresponds to the charge has not yet been handed down and the accused is not free.  One step in disposing of the charge has been taken -- conviction.  But the second step of determining sentence remains.

18                               I conclude that “charged with an offence”, in the context of s. 11(b) is not confined to the period before entry of a guilty plea and may extend to the sentencing process.

(b)   Does “Tried” Within a Reasonable Time Extend to Sentencing?

19                               The next question is whether the phrase “tried within a reasonable time” in s. 11(b) is capable of extending to sentencing.  A purposive reading suggests that “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”:  R. v. Rahey, [1987] 1 S.C.R. 588, at p. 610 (emphasis added),  per Lamer J.,  Dickson C.J. concurring.  In the same case La Forest J., with whom McIntyre J. concurred, stated that “tried” means not “brought to trial”, but “adjudicated” (p. 632).  Since the “outcome” of a criminal case is not known until the conclusion of sentencing, and since sentencing involves adjudication, it seems reasonable to conclude that “tried” as used in s. 11(b) extends to sentencing.

20                               This interpretation conforms to pre-Charter jurisprudence which suggests that the sentencing process is an integral part of the trial.  In R. v. Grant, [1951] 1 K.B. 500 (C.C.A.),  at p. 503, it was held that an accused’s trial was incomplete until either a sentence was imposed or the accused was discharged.  Similarly, the decision of a majority of this Court in R. v. Gardiner, [1982] 2 S.C.R. 368, strongly suggests that sentencing is part of the process of being “tried”.  The issue in Gardiner was the appropriate standard of proof to be applied to disputed facts during the sentencing process.  The majority held that the criminal standard of proof applied.  The Court highlighted the importance of sentencing in our criminal law system and observed that since most accused persons plead guilty “[s]entencing is, in respect of most offenders, the only significant decision the criminal justice system is called upon to make” (p. 414).  Dickson J. (as he then was) commented (at p. 415):

To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof.  Crime and punishment are inextricably linked.  “It would appear well established that the sentencing process is merely a phase of the trial process” (Olah, [“Sentencing:  The Last Frontier of the Criminal Law” (1980), 16 C.R. (3d) 97], at p. 107).  Upon conviction the accused is not abruptly deprived of all procedural rights existing at trial:  he has a right to counsel, a right to call evidence and cross-examine prosecution witnesses, a right to give evidence himself and to address the court.  [Emphasis added.]

Head, supra, also supports the view that sentencing is part of the process of being “tried”, in that the trial judge retains a limited discretion to re-open the verdict until sentencing is complete.

21                               These considerations suggest that “tried” in s. 11(b) is capable of extending to the sentencing process.  A number of arguments to the contrary, however, are raised by the Crown.  The Crown’s first argument is that if the framers of the Charter   had intended “tried” in s. 11( b )  of the Charter  to include the sentencing process they would have used more precise language.  The Crown bases this claim on the fact that the terms “tried” and “trial” are often used to refer to the pre-sentence criminal proceedings. 

22                               I am not persuaded by this argument.  First, as noted, pre-Charter jurisprudence included the sentencing process in the words “trial” and “tried”.  The framers of the Charter  in using the word “tried”, must be taken to have been aware of this jurisprudence. 

23                               Second, the French text of s. 11(b) supports the inclusion of sentencing in s. 11(b): “Tout inculpé a le droit: . . . d’être jugé dans un délai raisonnable”.  As Sopinka J. (dissenting) noted in R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1707, “‘[j]ugé’ means ‘judged’ or ‘sentenced’ and connotes a sense of adjudication which goes beyond the mere trial itself.  Had the section been intended to apply to the start of the trial only, then ‘mis en jugement’ would have been used”.

24                               Third, Charter  rights should be given a generous and purposive interpretation:  see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295,  at p. 344, Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 499-500, and Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 157.   When interpreting Charter  rights, courts “should avoid narrow, legalistic interpretations that might be appropriate to a detailed statute”:  P. W. Hogg, Constitutional Law of Canada (4th ed. 1997), at p. 820.  There is no reason to suppose that the framers of the Charter  intended in s. 11(b) to depart from a generous interpretation of “tried” which includes sentencing.

25                               The Crown’s second argument against reading “tried” in s. 11(b) as extending to sentencing is based on the observation of a majority of this Court, per Gonthier J., in R. v. Jones, [1994] 2 S.C.R. 229, that “the sentencing process begins only after the trial has been completed and guilt has been proven” (p. 297).  In my view, this observation does not detract from the dominant view on the cases that the process of being tried includes sentencing.  Jones was concerned not with ordinary sentencing proceeding, but with the “unique” Part XXI dangerous offender proceedings at issue in Lyons, supra.   Furthermore, Jones did not address s. 11(b); at issue were ss. 7 and 10(b).  Gonthier J.’s point, as I apprehend it, was that dangerous offender proceedings do not constitute a separate charge or offence triggering full Charter  protection.  The word “trial” was used in the above statement to distinguish the process of determining guilt or innocence from the process of determining the appropriate sentence only to argue that a lower standard of evidence is appropriate at the sentencing stage.  That the word “trial” is often used to refer specifically to the process of determining guilt or innocence in the criminal context is not disputed.  Nor is the fact that justice may permit different standards of proof at different stages of the criminal proceeding.  In my view, however, neither point is of assistance in determining whether the guarantee of s. 11(b) extends to sentencing.

26                               Finally, the Crown suggests that Potvin, supra, requires an interpretation of “tried” that would exclude the sentencing process.  Again, I must demur.  In Potvin, Sopinka J., for the majority, suggested that if it was intended that s. 11(b) apply not only to the trial but also to final adjudication on appeal, more apt wording would have been employed (p. 912).   However, as noted, the fact that Canadian jurisprudence pre-Charter held that “trial” includes the sentencing process, suggests that nothing more than the word “trial” was required to cover both determination of guilt and sentencing.  While it may be possible to argue that more specific language than “tried” is required to embrace the appellate process, the same argument cannot be made with respect to the sentencing process.

(c)   Conclusion on the Wording of Section 11(b)

27                               I conclude that the words “charged with an offence” and “tried within a reasonable time” support the view that s. 11(b) applies to sentencing.

(2)   Interests Protected by Section 11(b)

28                               The Crown argues that s. 11(b) should not be extended to sentencing delay because the interests protected by s. 11(b) are not relevant to sentencing.  To evaluate this argument it is necessary to examine the interests which underlie the s. 11(b) guarantee.

29                               The right to be tried within a reasonable time guaranteed by s. 11( b )  of the Charter  protects both an accused’s interests and society’s interests: see R. v. Askov, [1990] 2 S.C.R. 1199.  The accused’s interests include a liberty interest, a security interest and a fair trial interest.  Sopinka J. (for the majority) outlined these three interests in R. v. Morin, [1992] 1 S.C.R. 771, at p. 786:

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.

See also the judgment of La Forest J. in Rahey,  supra, at p. 647.  In Askov, Cory J., for the majority, framed the accused’s interests in terms of the ability of persons “to defend themselves against the charges they face and to have their name cleared and reputation re-established at the earliest possible time” (p. 1219).

30                               The societal interest protected by s. 11(b) has at least two aspects:  see  Askov, per Cory J., at pp. 1219-20.  First, there is a public interest in ensuring a speedy trial, so that criminals are brought to trial and dealt with — possibly through removal from the community — as soon as possible.  Second, there is a public interest in ensuring that those on trial are dealt with fairly and justly.  This societal interest parallels an accused’s “fair trial interest”.

31                               The question to be determined is whether sentencing engages these interests.  The Crown argues that the s. 11(b) interests are engaged mainly at the pre-sentence stage of criminal proceedings, where an accused’s guilt or innocence is decided, and that they arise only tangentially, if at all, at the stage of sentencing.  The accused, on the other hand, argues that the values s. 11(b) was intended to protect are alive and directly at issue during sentencing.

32                               In my view, the accused’s submissions should prevail.  While it is true that the protections conferred by ss. 7  to 14  of the Charter  have a more limited scope at the sentencing stage (Jones, supra,  per Gonthier J., at p. 286), they nevertheless remain important.

33                               I turn first to the interests of the accused that s. 11(b) was designed to protect.  The first interest at stake is the accused’s liberty.  Care must be taken to separate prejudice to liberty caused by conviction from prejudice to liberty caused by delay in sentencing.  This said, delay in sentencing clearly affects the liberty of an accused person who has been found guilty or has pleaded guilty, and has not yet been sentenced.  The person awaiting sentencing may be in prison.  If released, the person is subject to conditions curtailing his or her liberty.  At the very least, he or she is under obligation to return and submit to the state’s process.  Delay in sentencing extends the time during which these constraints on an individual’s  liberty are imposed.  While the sentencing judge may take them into account, there is no certainty that this will occur.  It follows that delay in sentencing may prejudice the accused’s liberty interest.

34                               The second interest of the accused protected by s. 11(b) is the security interest — the interest in minimizing the effects of exposure to criminal proceedings on the life of the accused.  Again, care must be taken to separate prejudice to security arising from the conviction, from prejudice arising from undue delay in sentencing.  The fact of conviction inevitably carries with it stress, stigma and opprobrium that render the convicted person’s life more anxious and less secure.   For this the law offers no recourse.  But undue delay in getting on with sentencing may exacerbate these sequelae.  Anxiety about the eventual punishment pending sentencing is normal and unavoidable.   But when sentencing is unduly delayed, this anxiety may be suffered for a longer period of time than justified.  Equally seriously, the delay may prevent the convicted person from beginning the process of rebuilding his or her life, whether in a prison or in the community.  Not only is the person’s present liberty curtailed; but he or she lives with the knowledge that it may further be curtailed and in a more permanent way upon sentencing.  The person lives in suspense, uncertain of his or her fate, unable to get on with his or her life, and faced with all of the stress and anxiety that this entails:  Rahey, supra,  per Lamer J., at pp. 610-11.  In a very real sense, the “trial” that will determine the convicted person’s fate is not over until sentence has been passed.

35                               The third interest of the accused protected by s. 11(b) is the right to a fair trial while the evidence remains available and fresh.  Evidence is important in sentencing proceedings.  The convicted person may wish to call character witnesses or expert witnesses.  The passage of time may adversely affect the ability to do so.  Added to this is the risk, admittedly small, that the trial on guilt or innocence may be opened up on the sentence proceeding, raising the possibility that delay might also impact negatively on the trial of that issue.  While in many cases the bulk of fair trial interests may dissipate once a verdict of guilt is established, the potential for prejudice arising from delay in sentencing remains alive.

36                               Delay in sentencing can also impact negatively on societal interests.  Society has a keen interest in ensuring that those guilty of committing crimes receive an appropriate sentence promptly.  The appropriate balance between the protection of society and the liberty of the individual can only be ascertained after hearing evidence and submissions on sentence.  The danger of an inappropriate situation continuing due to delay in sentencing is a real one.  Delay may result in too much liberty being granted pending sentencing, putting society at risk.  Or delay may result in the convicted person not getting the rehabilitative treatment he or she requires at an early stage, putting society at greater risk upon release and dimming the prospects of rehabilitating the person to the status of a productive and responsible member of society.  It is in society’s highest interest that the court develop and impose an appropriate sentence as soon as reasonably possible.  Delay in sentencing frustrates this goal.

37                               I conclude that consideration of the interests affected supports reading s. 11(b) as including delay in sentencing.

38                               I note that this position appears to be the same in the United States, where the speedy trial guarantee of the Sixth Amendment has generally been extended to sentencing.  In Gonzales v. State, 582 P.2d 630 (1978), the Supreme Court of Alaska held, based on its interpretation of Dickey v. Florida, 398 U.S. 30 (1970), that with some exceptions the same interests that underlay the right to prompt trial of guilt or innocence underlay the right to a prompt disposition of sentence.  The court set out seven interests protected by the right to a speedy trial under the Sixth Amendment (at pp. 632-33):

(1)   Spare the accused those penalties and disabilities incompatible with the presumption of innocence which may spring from delay in the criminal process;

(2)   Prevent undue and oppressive incarceration prior to trial;

(3)   Minimize anxiety and concern accompanying public accusation which might chill the accused’s free speech or association with the unpopular causes;

(4)   Impair the accused’s ability to present a defense due to death or unavailability of witnesses or dulled memories, etc.;

(5)   Minimize the possibility that the accused, while on bail pending trial or appeal may commit another dangerous crime;

(6)   Minimize delays which might adversely affect the government’s ability to prosecute the case;

(7)   Penalize official abuse or lawlessness, and encourage the fair and expeditious administration of justice.

The court concluded that all but the first and sixth interests were applicable, by analogy, to sentencing delays (at p. 633).  This was particularly true of the fifth and seventh interests:   “the public retains an interest in prompt and certain punishment for criminal offenses, both to minimize the possibility of further criminal activity by the accused while released on bail pending sentence, and to aid the deterrent effect of penal sanctions”.

(3)   Conclusion on the Application of Section 11(b) to Sentence Delay

39                               On the basis of the wording and purpose of s. 11(b), I conclude that s. 11( b )  of the Charter  extends to sentence delay.

B.                When Does Delay in Sentencing Related to a Judge’s Illness Violate     Section 11(b) of the Charter ?

40                               The second legal issue to be decided in this case is how delay related to judicial illness should be characterized for the purposes of s. 11(b).  The general question for determination when a s. 11(b) violation is alleged is whether the delay that occurred was “unreasonable”.  While “[r]easonableness is an elusive concept which cannot be juridically defined with precision and certainty” (Mills v. The Queen,  [1986] 1 S.C.R. 863, at p. 923, per Lamer J.), this Court has determined that four factors should be considered in determining whether a delay is unreasonable and in violation of s. 11( b )  of the Charter :

(1)   the length of the delay;

(2)   the reason(s) for the delay, including:

(a)       inherent time requirements of the case,

(b)       actions of the accused,

(c)       actions of the Crown,

(d)       limits on institutional resources, and

(e)       other reasons for the delay;

(3)  waiver of time periods; and

(4)   prejudice to the accused.

See, Askov, supra, at pp. 1231-32,  per Cory J.; Morin, supra, at pp. 787-88, per Sopinka J.

41                               The analysis must not proceed in a mechanical manner.  The factors and framework set out in Askov and Morin are not immutable or inflexible.  As noted by L’Heureux-Dubé J. in Conway, supra, at p. 1673, the list of factors can never be exhaustive.  Nor is an unyielding focus on only certain periods of the delay appropriate:  Conway, supra, at p. 1674.   In every case it must be borne in mind that the ultimate question for determination is the reasonableness of the overall delay.

42                               I propose to briefly discuss each of the four factors in the s. 11(b) analysis and then examine how they bear upon delay in sentencing due to the illness of the trial judge.

(1) Length of Delay

43                               A s. 11(b) analysis is required only where the delay is sufficiently great to raise the issue of whether the accused’s rights may have been prejudiced.  This is a threshold requirement for the s. 11(b) inquiry.  Absent an indication of delay capable of prejudicing the accused’s rights, there is no need to proceed further.

(2) Reasons for Delay

(a)   Inherent Time Requirements

44                               The period of time attributable to inherent time requirements is the period of time that would normally be required to process a case, assuming the availability of adequate institutional resources.  The period of time attributable to inherent time requirements is neutral and does not count against the Crown or the accused in the s. 11(b) reasonableness assessment. 

45                               The inherent time required to process a particular case must not be confused with the average time required to process a case of that type.  All cases have  “inherent time requirements needed to get a case into the system and to complete that case”:  R. v. Allen (1996), 1 C.R. (5th) 347 (Ont. C.A.), at pp. 363-64,  per Doherty J.A., aff’d [1997] 3 S.C.R. 700; Morin, at p. 792,  per Sopinka J.  While the complexity of a case is often cited as a factor contributing to delay resulting from inherent time requirements, “[e]ach case will bring its own set of facts which must be evaluated”:  Morin, at p. 792.  In other words, the inherent time requirements of a case are not limited to commonplace delays which occur in every situation, but may include delay due to extraordinary and unforeseeable events: Allen, supra.

46                               A trial judge falling ill may be such an event.  Judges being human, it is inevitable that they will occasionally fall ill.  Where this occurs and where it is not reasonable for the Crown to immediately apply to have the judge replaced (see below), the delay due to the judge’s illness may be regarded as part of the inherent time required to complete the case.  At the point, however, where it is reasonable for the Crown to apply to have the judge replaced, the inherent delay due to the judge’s illness changes to Crown delay. 

47                               The inherent time requirements of sentencing include the time required to prepare pre-sentence material, subpoena necessary witnesses and schedule the sentencing proceeding.  They may also include a judge’s illness up to the point when it is reasonable for the Crown to apply to have the judge removed and replaced.  The  reasonableness of the inherent time requirements of sentencing must be assessed on  a case-by-case basis.  The inherent time requirements of sentencing do not fall under the time guidelines for the pre-conviction period as set out in Morin, supra, and Askov, supra.

(b)   Delay Attributable to Actions of the Accused

48                               Delays intentionally caused by, consented to or requested by the accused cannot be used in support of a claim that a s. 11(b) violation has occurred:  Conway, supra, at p. 1673.  Otherwise, there might be an incentive to employ dilatory tactics in order to escape justice.  However, only those actions of the accused which directly contribute to the delay — such as a request for an adjournment — or which constitute a deliberate attempt to delay the trial, will count against an accused.  Such actions are inconsistent with a desire to proceed with the trial and are therefore inconsistent with an assertion of a s. 11(b) violation:  see Morin, supra.

(c) Delay Attributable to the Crown

49                               The Crown bears the responsibility of bringing accused persons to trial:  Askov, supra.  This extends to a duty to ensure that the trial proceedings, once engaged, are not unduly delayed.  This applies to sentencing, which for purposes of s. 11(b) is part of the trial.  Crown delay in excess of the inherent time requirements of the case count against the Crown in the s. 11(b) reasonableness assessment.  Examples of delays that will count against the Crown in the assessment of the reasonableness of the total delay include adjournments requested by the Crown and disclosure delays:  see Morin, supra.  In some cases, the Crown may also be responsible for delays caused by the trial judge:  see,  e.g., Rahey, supra.

50                               The Crown’s duty to ensure that trial proceedings are not delayed may require the Crown to apply to have a judge removed and replaced when a judge falls ill in the course of a trial.  There is no set time period after the onset of illness when the Crown must apply to have the judge removed and replaced.  Whether and when the Crown should act depends on what is reasonable in the circumstances of the case.

51                               It can safely be said that the Crown should bring an application to replace the judge when it is clear that the judge will not recover or return to judicial duties.  However, where the expectation is that a judge seized of the case will recover and return, the matter is more difficult.  In such a case, the Crown must balance two factors.  On the one hand, the Crown must consider the fact that a judge who has heard evidence in a case is seized of the case.  This means that the task of deciding all the issues on the case, including sentencing,  falls to that judge and no other.  The removal of a judge from an unconcluded case has the potential to interfere with the independence of the judiciary and the right of an accused to a fair trial.  Absent compelling reasons, it would be improper for Crown counsel to apply to remove a judge seized of the case.  To do so might create a perception that the Crown was interfering with the right of the judge to independently judge all the issues in the case.   It might also create a perception of unfairness to the accused.  For example, a trial judge may make comments in the course of a trial that lead the Crown to speculate that he or she is sympathetic to the accused.  If the Crown were to apply to have the judge removed prior to sentence absent a compelling reason, the perception might be that the Crown did so to obtain a judge less sympathetic to the accused.  Where a judge falls ill and the expectation is that he or she will return to judicial duties, the Crown must bear these considerations in mind in deciding whether it is reasonable to bring an application to have the judge removed.  On the other side of the balance, the Crown must consider the accused’s right to a prompt trial under s. 11(b) and the prejudice the accused may suffer as a result of the delay.

52                               In summary, where the trial judge falls ill and is expected to return, the Crown must balance two competing factors:  (1) the need to proceed with the utmost care and caution when considering the removal of a judge seized with a case in order to protect judicial independence and fairness to the accused, and (2) the need to protect the accused’s s. 11(b) rights and prevent undue prejudice to the accused.  The practical question is whether the apprehension of a violation of the accused’s s. 11(b) rights has reached the stage where it outweighs the general rule that the judge seized of a case should conclude it.  Where the apprehension of a s. 11(b) violation outweighs this general rule, the Crown has a duty to apply to remove and replace the seized judge.  If the Crown fails to do so, any resulting delay will be counted against the Crown in the s. 11(b) assessment.

(d) Delay Due to Limits on Institutional Resources

53                               Some delay inevitably results from the fact that the justice system must schedule and process a large number of cases.  Even when sufficient courtrooms, prosecutors and judges are available and all reasonable efforts made to expedite the disposition of cases, delays will inevitably and unavoidably occur within the system.  When systemic delay occurs, the court on a s. 11(b) application must determine whether it is reasonable or unreasonable.   Only unreasonable systemic delay will count against the Crown in the s. 11(b) assessment.  Many factors may affect whether a given systemic delay is unreasonable.  A careful case-by-case analysis is required to determine the period of permissible systemic delay.

54                               The failure of the government to provide sufficient courtrooms, prosecutors and judges may result in unreasonable systemic delay.  While recognizing that the institutional resources available to deal with a given case may vary between provinces and districts (see Askov, supra), courts must nonetheless be vigilant to ensure that delays based on a deficiency in the amount of institutional resources are not legitimized:  see Mills, supra, at pp. 935-41,  per Lamer J.  As Cory J. cautioned in Askov, the s. 11(b) guarantee must not be reduced to the point of meaninglessness by using a lack of institutional resources to justify significant delays.  The government must allocate sufficient funds to institutional resources in order to meet the constitutional obligation imposed on it by s. 11( b )  of the Charter :  see Morin, supra, at p. 795,  per Sopinka J.   The reality of restricted institutional resources and the need to process a large number of cases within a reasonable time and at reasonable cost, must thus be balanced against the need for the speedy resolution of criminal charges.  The question in every case is whether, considering all of the circumstances of the case, the systemic delay is reasonable. 

55                               Delay due to the illness of a judge may constitute systemic delay where the Crown delays bringing what would be a reasonable motion to replace the judge who has fallen ill because the Crown knows there is no other replacement judge available.  The same applies to a case where the Crown applies to remove the judge and an order for replacement is made but an unreasonable delay in replacing the judge results because there is no other judge available.  The same reasoning would apply to unreasonable delays in replacing the judge due to a shortage of courtrooms or other necessary institutional resources.

56                               This raises the difficult question of what contingency arrangements the judicial system should have in place for the eventuality that a judge will fall ill and be unable to complete a case he or she has begun.  The answer to this question must depend, as it does generally when considering institutional delay, on the pressures on the criminal justice system in a particular area.  Certainly, in a small jurisdiction, like Prince Edward Island, it would probably not be reasonable to expect judges to be kept available against the unlikely contingency of a judge’s illness.

(3)  Waiver of Time Periods

57                               An accused may waive delay.  Waived delay will not be considered in the assessment of the reasonableness of the overall delay.  The Crown argues that when an accused person enters a guilty plea, the s. 11(b) right is waived.  I do not accept this argument.  First, entry of a guilty plea does not connote acceptance of a long pre-sentencing delay.  On the contrary, persons who plead guilty may be motivated by a desire to bring the proceedings to a speedy close.  Second, even if an inference of acceptance of delay could be hypothesized, it would not establish waiver; waiver of Charter  rights must be “clear and unequivocal”; mere acquiescence with a particular delay will not necessarily amount to waiver:  see Rahey, supra, and Askov, supra.

(4) Prejudice to the Accused

58                               The final “Askov” factor is prejudice to the accused resulting from the delay.  As Cory J. stated in Askov, supra, prejudice can often be inferred from a lengthy delay.   However, while it is the duty of the Crown to bring the accused to trial, and while there is no obligation on an accused to press for a trial (Morin, supra), any action or inaction on the part of an accused which is inconsistent with a desire for a timely trial is relevant to the assessment of prejudice.

59                               The prejudice resulting from sentencing delay must be assessed using a case-by-case analysis.  Stigma or damage to reputation flow mainly from the finding or plea of guilt.  However, sentencing delay may also cause prejudice through pre-sentence incarceration or restrictive bail conditions.  Sentencing delay may also cause prejudice in the form of anxiety as the person awaiting the delayed imposition of punishment is unable to continue with his or her life due to uncertainty about his or her future.

(5) Summary                                                                    

60                               Whether delay in sentencing amounts to a violation of s. 11(b) depends on whether the delay was unreasonable considering the length of the delay, the reasons for the delay, the effect of any waivers of delay and prejudice suffered by the accused. 

61                               Delay related to the illness of a judge seized of the case may be considered to be delay inherent in the case (not counted against the Crown), delay attributable to the Crown (counted against the Crown), or delay due to a shortage of institutional resources (counted against the Crown if the delay is unreasonable).  Delay related to  judicial illness which takes places in the period before it is reasonable for the Crown to apply to have the judge removed is inherent delay.  Delay which occurs after the point when it is reasonable for the Crown to apply to have the judge removed is Crown delay.  Delay in replacing a judge which transpires after the point when it is reasonable for the Crown to apply to have the judge removed due to lack of judicial resources is institutional or systemic delay, counting against the Crown if the lack of resources is unreasonable having regard to the particular pressures on the court system at issue.

C.                Application of the Law

62                               In the case at bar, the total delay of  21 months and 3 weeks which occurred between the laying of the indictment and the hearing of MacDougall’s stay application was excessive and meets the threshold test requiring the courts below to examine whether the delay was unreasonable under s. 11(b).  The only question is whether the lower courts’ analysis was correctly conducted.

63                               Trial judges and provincial courts of appeal will generally be in the best position to determine whether a delay was unreasonable, given their knowledge of the particular circumstances in their jurisdiction.  However, as Sopinka J. noted for the Court in R. v. Stensrud, [1989] 2 S.C.R. 1115, at p. 1116, this determination must be based on the appropriate principles.  In my respectful view, the courts below proceeded on the wrong principles by mischaracterizing the delay related to Judge Plamondon’s illness and eventual resignation.

64                               There is little dispute about the characterization of the delays other than those related to Judge Plamondon’s illness.  For the record, I will briefly review them.   MacDougall was charged in December, and first appeared a month and a half later.  This initial delay is attributable to the inherent time requirements of the case.  At his first appearance, MacDougall requested an adjournment for election and plea.  The consequent delay of one month must be attributed to MacDougall.  When MacDougall next appeared on February 13, 1995, he pleaded not guilty, and the case was adjourned for trial.  However, when he appeared on April 5, 1995, he changed his plea to guilty, and the case was adjourned for sentencing, with a pre-sentence report to be prepared by May 12, 1995.  The three-month delay between February 13, 1995, and May 12, 1995, is attributable to the inherent time requirements of the case.   However, the two-month delay between May 12, 1995, and the indefinite adjournment on July 14, 1995, is attributable to the Crown, which requested two extensions in order to prepare the pre-sentence report.  The period between the trial judge’s resignation on April 15, 1996, and the Crown’s request for the assignment of a new judge on May 21, 1996,  is also delay attributable to the Crown.  The period between the assignment of a new judge on May 22, 1996, and MacDougall’s scheduled next appearance on June 13, 1996, is attributable to the inherent time requirements of the case.  However, as MacDougall failed to appear on  June 13, 1996, the subsequent delay between that date and his eventual appearance on July 11, 1996, is attributable to him.  Finally, the two and one-half month period between July 11, 1996, and the hearing of MacDougall’s motion for a stay based on undue delay on September 24, 1996, is attributable to the inherent time requirements of the case.

65                               This brings me to the contentious nine-month delay between the indefinite adjournment on account of Judge Plamondon’s illness on July 14, 1995, and Judge Plamondon’s resignation on April 15, 1996. 

66                               The respondent MacDougall argues that the delay resulting from the illness of  Judge Plamondon should be considered as Crown delay, unreasonable systemic delay, or a combination of both.  He argues that the Crown should have moved to have a new judge assigned at an earlier date.  He also suggests that the judicial system itself acted unreasonably in not naming a new judge to the case sooner.  While these arguments possess a certain plausibility, they lose their force when the exceptional nature of delay related to judicial illness is considered.  

67                               When Judge Plamondon fell ill, the expectation was that he would soon return to his judicial duties.  On the justifiable assumption that Judge Plamondon would return, the Crown proceeded in accordance with the general rule that an accused should be sentenced by the judge who took the plea or presided at the conviction phase of the trial.  The Crown was required to proceed cautiously in moving to replace Judge Plamondon.  Against this I balance the right of the accused to be tried within a reasonable time and ask whether the circumstances required departure from the usual rule that the judge seized of the case retains jurisdiction over it until its conclusion.  The Crown had no information suggesting that Judge Plamondon would not be returning, or that his absence would be unduly lengthy.  It became apparent that he would not return only upon the announcement of his retirement.  The delay in question was nine months long.  However, it occurred in the post-conviction phase of proceedings when the interests engaged by s. 11(b) were more attenuated, in the circumstances, than in the pre-conviction phase.   Furthermore, there was no indication that the delay would cause the accused any significant prejudice.  In these circumstances, I cannot conclude that the Crown erred in not moving prior to Judge Plamondon’s resignation to remove and replace him.  Crown delay is therefore not established. 

68                               Similar considerations resolve the respondent’s contention that the failure to replace Judge Plamondon earlier constituted unreasonable systemic delay.  The  occasional illness of trial judges is an inevitable and unfortunate incident of any system  reliant on human endeavour.  Delay related to the illness of a trial judge is part of the inherent time requirements of a case where the Crown has acted reasonably and there is no shortage of resources.  A case for unreasonable systemic delay would only have arisen in this case if an order to replace Judge Plamondon had been made but been impossible to put into effect because there was no replacement judge.  That was not the case here.

69                               In concluding that the delay due to Judge Plamondon’s illness was reasonable, I am aware that the Quebec Court of Appeal observed that a “six-month wait for a judge to recover is a long wait in a criminal trial” and emphasized “the duty of the Crown” to bring the accused to trial:  R. v. Trudel, [1992] R.J.Q. 2647, at p. 2650.  These comments were made in a case concerned with pre-conviction delay, where the delay was compounded by the unavailability of the Crown on two occasions, as well as an administrative error of the court.  The reasonableness of delay must be assessed on a case-by-case basis.  Each case must proceed on its own facts.  On the facts here, neither Crown delay nor unreasonable systemic delay are established.

70                               In sum, the delay in this case is attributable as follows:  the Crown bears responsibility for approximately three months of the delay, and the accused two months of the delay.  Seven and one-half of remaining sixteen and one-half  months are attributable to the inherent time requirements of the case.  The final nine months due to the illness of Judge Plamondon cannot be considered as Crown delay or unreasonable systemic delay but as an inherent time requirement of the case.  Neither the Crown nor the system operated unreasonably in not removing Judge Plamondon bearing in mind the exceptional nature of such action.

71                               This leaves a net delay of three months for consideration under s. 11(b). While longer than one might wish, this delay is not egregious.  Nor does the evidence suggest that the delay unduly prejudiced MacDougall.  He was not incarcerated awaiting sentencing, and he has not argued that he was subject to restrictive bail conditions.  He never pressed the Crown to continue with the sentencing proceedings.  This suggests that any prejudice inferred to have been suffered by MacDougall was minimal.  Weighing the Crown delay against the minimal prejudice suffered by MacDougall, I conclude that it was not unreasonable, and that there was no s. 11(b) violation.  It is therefore unnecessary to consider the issue of remedy.

VII.  Conclusion

72                               I would allow the appeal and remand the case to the Prince Edward Island Provincial Court for sentencing.

Appeal allowed.

Solicitor for the appellant:  Crown Attorney’s Office, Charlottetown. 

Solicitor for the respondent:  Prince Edward Island Legal Aid, Charlottetown.