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