R. v. Gallant, [1998] 3 SCR 80

R. v. Gallant, [1998] 3 S.C.R. 80

Her Majesty The Queen                                                                   Appellant

v.

Cory Anthony Gallant Respondent

Indexed as:  R. v. Gallant

File No.:  25922.

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) .

The accused was charged with breaking and entering on April 19, 1995.  Five days later he entered a guilty plea. The case was adjourned to June 12 for sentencing.  Because of the trial judge’s illness, the June 12 sentencing hearing was adjourned to July 10.  On that day, the hearing was suspended indefinitely again because of the trial judge’s illness.  The trial judge resigned on April 15, 1996, and on May 21 the Crown requested that a new judge be assigned to sentence the accused.  A new judge was assigned the next day.  On June 27, before the new judge, defence counsel requested an adjournment until July 11.  At that time the matter was adjourned to September 24 for a defence motion to have the charges stayed.  On that date, the new judge granted the motion, holding that the 17‑month sentencing delay violated s. 11( b )  of the Canadian Charter of Rights and Freedoms . The Court of Appeal dismissed the Crown’s appeal.  This appeal raises the same issues dealt with in R. v. MacDougall, rendered concurrently.

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

For the reasons expressed in MacDougall, the s. 11(b) right to be tried within a reasonable time extends to sentencing.  However, the accused’s s. 11(b) right was not violated in this case as the 17‑month sentencing 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 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 three‑week delay resulting from his request for an adjournment.  The remaining months of the delay are attributable to the inherent time requirements of the case, including the 10 months of delay relating to the trial judge’s illness.  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.  The delay of one month attributable to the Crown is not egregious and the evidence does not suggest that it prejudiced the accused.

Cases Cited

Referred to: R. v. MacDougall, [1998] 3 S.C.R. 45, rev’g (1997), 147 Nfld. & P.E.I.R. 193; R. v. Bosley (1992), 59 O.A.C. 161.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , s. 11 ( b ) .

APPEAL from a judgment of the Prince Edward Island Supreme Court, Appeal Division, [1997] P.E.I.J. No. 12 (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 raises the same issues as R. v. MacDougall, [1998] 3 S.C.R. 45:  (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).  As in MacDougall, the sentencing delay that occurred in this case was primarily due to the prolonged illness of the trial judge.  For the reasons I expressed in MacDougall, I am of the opinion that the s. 11(b) right to be tried within a reasonable time extends to sentencing.  However, in this case, as in MacDougall, I am of the view that the delay that occurred was not unreasonable and would allow the appeal and remit the case to the trial court for sentencing.

II.  Facts     

2                                   On April 19, 1995, Gallant was charged with breaking and entering.  He was also charged with 10 other summary conviction offences, which are not at issue in this appeal.  Gallant appeared before Plamondon Prov. Ct. J. on April 24, 1995, and pleaded guilty to all charges.  The matter was adjourned to June 12, 1995, to allow for the preparation of a pre-sentence report.  The June 12, 1995, hearing was subsequently adjourned to July 10, 1995, due to the illness of the trial judge.  On July 10, 1995, the case was adjourned indefinitely due to the illness of Plamondon Prov. Ct. J.  Judge Plamondon resigned on April 15, 1996.

3                                   On May 21, 1996, Crown counsel wrote to Chief Provincial Court Judge Thompson, requesting that a judge be assigned to sentence Gallant.  FitzGerald  Prov. Ct. J. was assigned on May 22, 1996.   At his first appearance before the new judge on June 27, 1996, Gallant’s counsel requested an adjournment to July 11, 1996.  On July 11, 1996, the matter was adjourned to September 24, 1996, for a defence motion to have the charges stayed.  On September 24, 1996, FitzGerald Prov. Ct. J. granted Gallant’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

4                                     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

5                                   FitzGerald Prov. Ct. J. heard the applications for stays of proceedings in this case and  in MacDougall 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] P.E.I.J. No. 12 (QL)

6                                   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 MacDougall, and FitzGerald Prov. Ct. J. was correct in granting stays.

V.   Issues

7                                   (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

8                                   The first issue in this appeal and in MacDougall is whether the s. 11(b) right to be tried within a reasonable time includes the right to be sentenced within a reasonable time.  In MacDougall, I concluded that it does.  I reached this conclusion based on the wording of s. 11(b) and the interests — both those of accused persons and those of society — the section is meant to protect.

9                                   The second issue in this appeal and in MacDougall is how delay related to judicial illness should be characterized for the purposes of s. 11(b).  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.  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.

10                               Given that s. 11(b) includes the right to be sentenced within a reasonable time and taking into account the appropriate manner in which to characterize delay related to judicial illness, it remains to be considered whether there was a s. 11(b) violation in this case.

11                               The total delay between the charge and the hearing of Gallant’s s. 11(b) motion of approximately 17 and a half months, was excessive and meets the threshold test requiring courts below to examine whether the delay was unreasonable under s. 11(b).  In my view, however, the courts below proceeded on the wrong principles by mischaracterizing the delay relating to Judge Plamondon’s illness and wrongly considering it  attributable to the Crown.

12                               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.  Gallant was charged on April 19, 1995, and first appeared a week later, at which time he pleaded guilty.  The case was adjourned to June 12, 1995,  for sentencing and for the preparation of a pre-sentence report.  The period from April 19, 1995, to June 12, 1995, is attributable to the inherent time requirements of the case.  Similarly, the period between the assignment of FitzGerald Prov. Ct. J. on May 22, 1996, and Gallant’s first appearance before the new judge on June 27, 1996, as well as the period from July 11, 1996, to the hearing of the s. 11(b) motion on September 24, 1996, are attributable to the inherent time requirements of the case.  The two-week adjournment from June 27, 1996, to July 11, 1996, was requested by Gallant’s counsel.  Therefore, it must be considered as waived, and cannot be used in support of the claim that a s. 11(b) violation has occurred.  On June 12, 1995, the case was adjourned for one month due to the trial judge’s illness.  A further, indefinite, adjournment occurred on July 10, 1995.  The case was not assigned to a new judge until May 22, 1996.  The period between Judge Plamondon’s resignation on April 15, 1996, and the request for the assignment of a new judge on May 21, 1996, is delay attributable to the Crown.

13                               As discussed in MacDougall, the contentious 10-month delay between the first adjournment on account of Judge Plamondon’s illness on June 12, 1995, and Judge Plamondon’s resignation on April 15, 1996, did not result from unreasonable Crown conduct and did not constitute unreasonable systemic delay.

14                               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, nor 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 10 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. 

15                               Similar considerations resolve the question of whether 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 available.  That was not the case here.

16                               In sum, the delay in this case is attributable as follows: the accused bears responsibility for two weeks of the delay.  The Crown bears responsibility for one month of the delay.  Approximately six of the months are attributable to the inherent time requirements of the case.  The final 10 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.  This leaves a net Crown delay of approximately one month.   This delay is not egregious nor does the evidence suggest that the delay prejudiced  Gallant.  There is thus no evidence capable of justifying a claim under s. 11( b )  of the Charter . 

17                               I conclude that Gallant’s claim of unreasonable delay in breach of s. 11( b )  of the Charter  should be dismissed.

VII.   Conclusion

18                               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.