Present: Sopinka, 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 ‑‑ Accused held in custody for twenty‑two months pending trial ‑‑ Five‑ to ten‑month delay attributable to Crown ‑‑ Whether accused's right to be tried within reasonable time infringed ‑‑ Canadian Charter of Rights and Freedoms, s. 11(b) .
The accused were arrested on December 22, 1988 and remained in custody until November 2, 1990, when their trial on a charge of second degree murder began. The trial resulted in a directed verdict of acquittal but the Court of Appeal set aside the acquittal and ordered a new trial. At the second trial, the accused applied for a stay of proceedings on the ground that their right to be tried within a reasonable time, guaranteed by s. 11( b ) of the Canadian Charter of Rights and Freedoms , had been infringed. This application was based on the 22‑month period which preceded the accused's first trial. The trial judge granted the application. He found that the Crown's tardiness and indifferent efforts to make disclosure had resulted in significant delay in starting and completing the preliminary inquiry, and that, while the accused had made a concerted effort to obtain an early trial date, the Crown had requested an adjournment when it did not have sufficient information to do so, unjustifiably delaying the beginning of the trial for 4½ months. The Court of Appeal set aside the stay and ordered that the accused's trial proceed.
Held (Cory and Iacobucci JJ. dissenting): The appeal should be allowed.
Per Sopinka, McLachlin and Major JJ.: This is not a case which turns on the length of institutional delay that will be tolerated owing to the scarcity of resources. Rather, the delay is attributed to actions on the part of the Crown. A request for a lengthy adjournment with respect to a case in which the accused are in custody and have been pressing for an early trial should be based on solid grounds. As found by the trial judge, the grounds for the Crown's request were inadequately investigated and the matter was compounded by the Crown's failure to respond to the entreaties of defence counsel which, if heeded, would have enabled the trial to proceed on schedule. In these circumstances, the trial judge was right to conclude that the delay occasioned by the adjournment was unjustified. This, coupled with the delay caused by late disclosure, fully justified his conclusion that the delay was unreasonable and that violation of the accused's s. 11(b) rights warranted a stay of proceedings.
Per Cory and Iacobucci JJ. (dissenting): A careful judicial balancing of the interests which s. 11( b ) of the Charter is designed to protect requires an examination of the length of the delay and its evaluation in light of all the relevant factors that must be considered. There are several factors to be balanced in this case: (a) the serious incursion into the accused's liberty interests; (b) the 4½‑month delay, solely attributable to the Crown's "miscommunication" regarding the health of its key witness; (c) that both the Crown and the defence contributed to delays leading up to the preliminary inquiry; (d) that the case was complex and serious, and required a significant amount of neutral "intake" time; (e) that the charges against the accused were most serious and accordingly the societal interest in bringing them to trial was of the highest degree; and finally, (f) that the fair trial interests of the accused were not affected by the delay. Here, the trial judge placed too much emphasis on the combination of the 4½‑month delay and the fact that the accused remained in custody. He did not balance the interests which s. 11(b) is designed to protect against all the relevant factors. The additional 4½‑month delay caused by the Crown was not of such significance that the entire 22‑month period violates s. 11(b). While the 4½‑month delay was clearly of serious prejudice to the accused, the societal interest in bringing them to trial on the charges of second degree murder outweighs that prejudice. This is particularly so given that the accused's right to a fair trial was not infringed upon in any way by the delay.
Cases Cited
By Sopinka J.
Referred to: R. v. Morin, [1992] 1 S.C.R. 771; R. v. Smith, [1989] 2 S.C.R. 1120.
By Iacobucci J. (dissenting)
R. v. Morin, [1992] 1 S.C.R. 771; R. v. Askov, [1990] 2 S.C.R. 1199.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , s. 11 ( b ) .
APPEAL from a judgment of the Ontario Court of Appeal, [1994] O.J. No. 2303 (QL), allowing the Crown's appeal from a judgment of Cavarzan J. rendered November 1, 1993, ordering a stay of proceedings on a charge of second degree murder. Appeal allowed, Cory and Iacobucci JJ. dissenting.
Alison J. Wheeler, for the appellant Collins.
Brian H. Greenspan, for the appellant Pelfrey.
C. Jane Arnup, for the respondent.
The judgment of Sopinka, McLachlin and Major JJ. was delivered by
1 Sopinka J. -- This is an appeal from the Court of Appeal for Ontario, [1994] O.J. No. 2303 (QL), which reversed the judgment of Cavarzan J. staying the proceedings by reason of unreasonable delay.
2 In their application for a stay, the appellants relied on three sources of delay:
(1)tardy and indifferent efforts to make disclosure resulting in a lengthening of the preliminary inquiry;
(2)failure to fix a trial date prior to committal for trial notwithstanding that the Crown was urged to do so, and when it was conceded that a committal was inevitable;
(3)adjournment of the trial at the request of the Crown which was without foundation and resulted in a delay of 4½ months.
3 The trial judge who heard the motion during which viva voce evidence was called made the following findings of fact:
I note, however, that notwithstanding the fixing of trial dates in this case and repeated requests by defense counsel for meaningful disclosure, disclosure was effected exceedingly slowly and with apparent reluctance or, at least, indifference.
. . .
The delay in getting the preliminary inquiry off the ground and completed is, therefore, attributable in large part to the inaction of the Crown.
. . .
I find as facts that as a result of the pre-trial of March 5, 1990, the Court and all counsel involved were preparing for the trial to commence on May 28, 1990; that this process was derailed at the instance of Crown counsel who advised the Supreme Court Office that the trial could not proceed; that the Crown did not have sufficient information on or before March 16th to justify taking that step unilaterally; and that there was sufficient time for the Crown, alerted by defence counsel's request for particulars to have obtained confirmation of Martin's status in time to have re-established the May 28th trial date.
. . .
I find as a fact, however, that Mr. Swanson did cause the delay from May 28th until October 10th, and that that delay was not justifiable in the circumstances.
. . .
As stated earlier in these reasons it is clear that there was delay by the Crown in making the requisite disclosure. Prior to the making of meaningful disclosure in mid to late July, 1989, defence counsel had no basis for determining that more than four days would be required to complete the preliminary hearing. This failure, in my view, accounts for the fact that the need for more preliminary hearing dates was not identified much earlier. Had meaningful disclosure occurred earlier, it is probable that a sufficient number of hearing dates would have been found to complete the preliminary inquiry before the end of 1989.
. . .
As noted at the outset, this application involves accused who were in custody for twenty-two and a half months. Mr. Ayre takes no issue with the fact that the accused made a concerted effort to obtain an early trial date, particularly from and after October 19, 1989. This is a relevant factor. [Emphasis added.]
4 The period of delay of 22 months was held by the trial judge to warrant an inquiry into the reason for delay and no issue is taken with this finding. The trial judge then considered the relevant factors and concluded that the delay was unreasonable.
5 In my view, although I have reservations about the application by the trial judge of some of the factors, having regard to the findings to which I have referred and balancing the relevant factors, the trial judge came to the right conclusion.
6 In R. v. Morin, [1992] 1 S.C.R. 771, at p. 788, the majority stated:
The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable.
7 With respect to the requirement of an explanation by the Crown of a long period of adjournment, a unanimous Court in R. v. Smith, [1989] 2 S.C.R. 1120, at pp. 1132-33, stated:
For example, a long period of delay occasioned by a request of the Crown for an adjournment would ordinarily call for an explanation from the Crown as to the necessity for the adjournment. In the absence of such an explanation, the court would be entitled to infer that the delay is unjustified. [Emphasis added.]
8 This passage was expressly affirmed in Morin, supra, but the majority went on to summarize the actions of the Crown which may require explanation, at p. 794:
This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc.
9 The respondent has quite properly conceded in its factum that the delay due to actions of the Crown included 4½ months relating to the adjournment and some part of a delay of 5½ months relating to the prolongation of the preliminary hearing as a result of late disclosure. Accordingly, delay due to the actions of the Crown and in respect of which an explanation was required was in the order of 5 to 10 months.
10 This is not a case which turns on the length of institutional delay that will be tolerated owing to the scarcity of resources. Rather, the delay is attributed to actions on the part of the Crown. The appellants were both incarcerated for a period of 22 months. A verdict of acquittal was directed at the first trial which was set aside on appeal and they face a second trial. In my view, a request for a lengthy adjournment with respect to a case in which the accused are in custody and have been pressing for an early trial should be based on solid grounds. I agree with the submission that the grounds for the Crown's request were inadequately investigated, and the finding of the trial judge that the matter was compounded by the Crown's failure to respond to the entreaties of defence counsel which, if heeded, would have enabled the trial to proceed on schedule. In these circumstances, the trial judge was right to conclude that the delay occasioned by the adjournment was unjustified. This, coupled with the delay caused by late disclosure, fully justified the conclusion that the delay was unreasonable and that violation of the appellants' rights under s. 11( b ) of the Canadian Charter of Rights and Freedoms warranted a stay of proceedings.
11 I would allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of Cavarzan J.
The reasons of Cory and Iacobucci JJ. were delivered by
I. Iacobucci J. (dissenting) -- I have read the reasons of my colleague, Justice Sopinka, and, with respect, I am unable to agree with his disposition.
II. This appeal raises the general issue of whether a 22-month period from charge to trial constitutes an "unreasonable" period of time within the meaning of s. 11( b ) of the Canadian Charter of Rights and Freedoms . The more narrow issue is whether a 4½-month delay, solely attributed to the Crown's conduct regarding the availability of a witness, constitutes an unreasonable violation of the Charter . It is at this point that I part company with my colleague: given the seriousness of the charges, I do not believe such a delay sufficient to justify a judicial stay of proceedings.
III. I am in agreement with my colleague that this appeal is governed by the jurisprudence enunciated by this Court in R. v. Morin, [1992] 1 S.C.R. 771, and R. v. Askov, [1990] 2 S.C.R. 1199. Where we disagree, however, is the emphasis to be given to particular factors as I will attempt to demonstrate.
IV. Understandably, caution must be exercised in this area because as Sopinka J. stated in Morin, supra, "[a]s the seriousness of the offence increases so does the societal demand that the accused be brought to trial" (p. 787). While not disregarding the other relevant factors that must be considered in this appeal, I place greater emphasis on the seriousness of the charges at issue in this appeal, originally first degree murder and later the accused were committed for trial on second degree murder charges. Of course, any such determination requires a careful judicial balancing of the interests which the section is designed to protect: Morin, supra. Accordingly, the process of balancing requires an examination of the length of the delay and its evaluation in light of other factors, such as, but not limited to, the seriousness of the offence.
V. This appeal turns upon several factors. First, are the actions of the Crown, notably the 4½-month delay occasioned by the misunderstanding concerning the extent of the injuries suffered in an accident by the witness, Brenda Martin, and her availability to testify. There is no doubt that serious injuries requiring hospitalization in the United States were suffered by the witness; the only question was when she would be available to testify. Defence actions are also relevant, as changes in defence counsel led to several previously agreed upon dates for the preliminary inquiry being pushed back. The extent of Crown disclosure, and delays in such disclosure prior to the preliminary inquiry, are also at issue in this appeal. Inherent time requirements need also be considered. Finally, a significant factor which must be recognized is prejudice to the appellants owing to their confinement in custody for the 22 months prior to their first trial.
1. Reasons for the Delay
(a) Inherent Time Requirements
VI. The respondent asserted that the trial judge erred by conflating inherent time requirements with systemic delay. In the controversial passage, Cavarzan J. stated the following:
Applying the Supreme Court of Canada guidelines in Morin, I am of the view that the inherent intake time requirements in this case were three months in Provincial Court and one month in the General Division. Although a complex case which might qualify for the higher end of the eight to ten month period in Provincial Court and the six to eight month period in the General Division, the facts that the accused were in custody, and that the Crown was unreasonably slow in making disclosure result in an adjustment to the low end of those ranges and beyond.
VII. In Morin, Sopinka J. declined to set out any guidelines for the inherent time requirements of any case, noting that it would vary widely depending on different practices in different parts of the country, the nature of the offence charged, the complexity of the case, and so forth. It is apparent, therefore, that the time guidelines referred to by Cavarzan J. are those articulated by Sopinka J. relating to systemic or institutional delay, which are not in issue in the instant appeal. It would, therefore, seem clear that the trial judge erred in his approach to evaluating the delay which was due to inherent requirements of the case.
VIII. Clearly, it is no easy task to determine what is or is not an "appropriate" length of time to allow for inherent time requirements. A precise examination of the delays in issue is required. The appellants were arrested and charged on December 22, 1988. The first dates were set for the preliminary inquiry on February 9, 1989. That 6-week period seems to be an appropriate and reasonable intake period within the Provincial Division. The numerous delays which took place after February 9, and resulted in changing the preliminary inquiry dates, were due to actions of the defence in changing counsel. The period following the completion of the preliminary inquiry on January 18, 1990 and committal for trial on that date until March 5, 1990, when the pre-trial was held and the attempts began to commence the trial in May, were also reasonable intake periods in the General Division.
IX. Other factors also contributed to the inherent time requirements: the presence of out-of-town counsel (both Crown and defence) and an out-of-town provincial court judge, and the complex factual nature of the case. The groundwork for the case included transcribing voluminous intercepted communications, the preparation by the police of a 700-page disclosure brief, and its analysis by all counsel. Finally, the fact that 6 weeks were set aside for the trial would seem to be an indication of the complexity of the case. Therefore, there was a certain amount of inherent preparation time required -- this is neutral time.
(b) Actions by the Crown
X. In considering the actions of the Crown, there are two important factors which must be examined: the delayed disclosure which took place prior to the preliminary inquiry, and the miscommunications regarding the purported unavailability of the Crown witness, Brenda Martin.
XI. With regard to the delayed disclosure, Cavarzan J. stated the following:
As stated earlier in these reasons it is clear that there was delay by the Crown in making the requisite disclosure. Prior to the making of meaningful disclosure in mid to late July, 1989, defence counsel had no basis for determining that more than four days would be required to complete the preliminary hearing. This failure, in my view, accounts for the fact that the need for more preliminary hearing dates was not identified much earlier. Had meaningful disclosure occurred earlier, it is probable that a sufficient number of hearing dates would have been found to complete the preliminary inquiry before the end of 1989.
XII. The respondent conceded that, to the extent that the preliminary inquiry was lengthened because of the faulty estimate of the length of the proceedings occasioned by late disclosure, this time is attributable to the Crown. In any event, the delayed disclosure was not the pivotal factor in the trial judge's decision to allow the s. 11(b) motion. The trial judge focused instead on the second element I have mentioned, namely the Crown's actions regarding the witness Brenda Martin.
XIII. The respondent concedes that the delay of 4½ months which resulted from the "serious miscommunication" between the police officer and the Crown prosecutor is clearly a delay attributable to the Crown. Despite his finding that this delay was solely attributable to the Crown, the trial judge nevertheless concluded that there were no improper or oblique motives behind the delay.
XIV. It is clear that Cavarzan J. placed great emphasis on the combination of the Brenda Martin delay and the fact that the accused remained in custody. The trial judge stated in his conclusion that:
I see no reason why the accused should not have been brought to trial within about 14 to 16 months of their arrest. The contemplated May 28, 1990, trial date would have been about 17 months post-arrest; a trial commencing on that date could not be said to have breached the trial "within a reasonable time" requirement, particularly in light of the strong societal interest in this serious charge going to trial.
The delay became intolerable, in my opinion, when the Crown effectively scuttled the arrangements to have the trial proceed on May 28, 1990. The defence had pressed vigorously for this early trial date even though it is clearly the Crown's duty to bring the accused to trial. The result was that the applicant and his co-accused languished in custody for an additional four and a half months. [Emphasis added.]
XV. Seen in this light, the real issue seems to be the narrow question stated by the Court of Appeal ([1994] O.J. No. 2303 (QL)) in its brief reasons: whether an additional delay of 5 months clearly attributable to the Crown is of such significance that the entire 22-month period violates s. 11(b). The only factor I would add, which was also recognized by the Court of Appeal, is that the appellants were in custody for the entire period of time.
XVI. Therefore, I cannot accept the finding of Sopinka J. that the relevant period of delay is in the order of 5 to 10 months. By stating that "the trial judge was right to conclude that the delay occasioned by the adjournment was unjustified" (p. 1110), my colleague seems to recognize that the relevant period at issue is the 5-month delay caused by the miscommunication. While he has found a violation by coupling this 5-month adjournment period with the delay from late disclosure, I cannot agree with such an approach since any delay caused by delayed disclosure was minimal, and further, such delay was expressly found to be reasonable by the trial judge. Moreover, within this period some of the delay was occasioned because of the defence.
(c) Actions by the Defence
XVII. The trial judge found that some of the delay leading to the preliminary inquiry was due to the change in defence counsel by the appellants. This is clearly correct, and is a factor to be taken into account in the balancing of interests.
(d) Limits on Institutional Resources
XVIII. As stated above, I do not believe this issue arises on the facts of this case.
2. Prejudice to the Accused
XIX. There was clear and undeniable prejudice caused to the accused by the delay. Their time in custody was correspondingly lengthened at a time when they were presumed innocent at law. Prejudice can also be evidenced by the fact that the appellants made vigorous steps to attempt to have an early trial date set.
XX. The respondent asserted that this prejudice is lessened by the fact that the appellants did not make a bail application. They argued that the appellants had a duty to "mitigate" their prejudice. I cannot accept this proposition. Counsel made a decision not to apply for bail because they felt such an application would not succeed. The trial judge concluded that this was a reasonable decision in all the circumstances. He therefore declined to hold the lack of a bail application against the appellants. I agree with Cavarzan J. on this issue because, even if the appellants had been released, they clearly would have been subject to restrictive bail conditions and their liberty interest would still have been seriously affected.
XXI. I would therefore conclude that the prejudice occasioned to the appellants by the delay was serious. Its ultimate impact on the s. 11(b) motion must be determined, however, by reference to all the other factors analyzed under the unreasonable delay jurisprudence.
3. The Judicial Balancing of Interests
XXII. In Morin, Sopinka J. stated the following at p. 787:
The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.
XXIII. I believe that it is on this point that the reasons of Cavarzan J. are subject to special scrutiny. It does not appear that he completed this final step in the analysis. Instead, he concluded that the Crown's actions led to a 4½-month delay during which the accused remained incarcerated. This was sufficient for him to allow the motion and order a stay.
XXIV. With respect, I disagree with that approach. In my view, the principal factors to be balanced in this case are as follows:
(a) the serious incursion into the appellants' liberty interests;
(b) the 4½-month delay, solely attributable to the Crown's "miscommunication" regarding the health of its key witness;
(c) the fact that both the Crown and the defence contributed to delays leading up to the preliminary inquiry;
(d) the case was complex and serious, and required a significant amount of neutral "intake" time;
(e) the charges against the two accused were most serious, namely, second degree murder, and accordingly the societal interest in bringing these accused to trial is of the highest degree; and finally
(f) the fair trial interests of the accused were not affected by the delay.
XXV. While the 4½-month delay caused by the Crown was clearly of serious prejudice to the accused, the societal interest in bringing the accused to trial on these most serious of charges outweighs that prejudice. This is particularly so given that the appellants' right to a fair trial was not infringed upon in any way by the delay. Accordingly, I agree with the conclusion of the Ontario Court of Appeal that the delay was not unreasonable and would accordingly dismiss the appeal.
Appeal allowed, Cory and Iacobucci JJ. dissenting.
Solicitors for the appellant Collins: Greenspan, Rosenberg & Buhr, Toronto.
Solicitors for the appellant Pelfrey: Greenspan, Humphrey, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.
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