Supreme Court Judgments

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Mills v. The Queen, [1986] 1 S.C.R. 863

 

James Henry Mills      Appellant;

 

and

 

Her Majesty The Queen                                                                   Respondent.

 

File No.: 17818.

 

*1984: June 6, 7.

 

*Present: Dickson C.J. and Ritchie, Beetz, Estey, Chouinard,Lamer and Wilson JJ.

 

**Re‑hearing: 1985: October 9; 1986: June 26.

 

**Present: Dickson C.J. and Beetz, McIntyre, Chouinard, Lamer,Wilson and La Forest JJ.

 

on appeal from the court of appeal for ontario

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Courts of competent jurisdiction to grant remedy under s. 24(1)  of the Charter  ‑‑ Accused alleging at his preliminary inquiry a violation of his Charter  right to be tried within reasonable time ‑‑ Preliminary inquiry judge not a court of competent jurisdiction ‑‑ Procedure to be followed in seeking a remedy ‑‑ Canadian Charter of Rights and Freedoms, ss. 11 (b), 24 .

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Trial within reasonable time ‑‑ Whether accused's right to be tried within reasonable delay denied ‑‑ Canadian Charter of Rights and Freedoms, s. 11 (b).

 

                   The accused was charged with robbery in March 1977 and arrested in October 1979. At his preliminary in‑ quiry held on May 18, 1982, one month after the proclamation of the Canadian Charter of Rights and Freedoms , the accused made a motion to stay the proceedings alleging, among other things, denial of his right to be tried within a reasonable time under s. 11 (b) of the Charter . Of the 19 month delay complained of, the Crown acknowledged that 10 months was due to its negligent inaction. It was found at the preliminary inquiry that, although a preliminary hearing judge is a court of competent jurisdiction to consider an alleged s. 11 (b) violation under s. 24  of the Charter, s. 24  did not apply in this case because it had only a prospective effect. The accused unsuccessfully sought an application for prohibition and certiorari, to prohibit further proceedings on the charge and to quash the ruling, and an application for a remedy under s. 24  of the Charter  in the Ontario Supreme Court. The motions court judge held that a preliminary hearing judge was a court of competent jurisdiction within the meaning of s. 24  but concluded on the merits that there had been no violation of s. 11 (b). The accused's appeal to the Court of Appeal, pursuant to s. 719  of the Criminal Code  which authorizes only appeals in prerogative writs applications, was dismissed. The accused's appeal to this Court raised several issues: (1) Where an application alleges a breach of s. 11 (b) of the Charter  (a) is a judge or justice presiding at a preliminary inquiry a court of competent jurisdiction for the purposes of an application under s. 24(1)  of the Charter ; (b) is a judge of the supreme court of a province a court of competent jurisdiction for the purposes of an originating application under s. 24(1)  of the Charter ; (2) Assuming that a judge presiding at a preliminary hearing is a court of competent jurisdiction, is the decision of the inferior court susceptible to review either by prerogative writ or by independent application to a superior court pursuant to s. 24(1)  of the Charter ; and (3) Did the Court of Appeal for Ontario err in concluding that the appellant's constitutional right to be tried within a reasonable time had not been violated?

 

                   Held (Dickson C.J. and Lamer and Wilson JJ. dissenting): The appeal should be dismissed.

 

                   Per Beetz, McIntyre and Chouinard JJ.: Under s. 24(1) of the Charter , anyone whose Charter  rights have been violated may apply to a court of competent jurisdiction for an appropriate remedy. Since the Charter  is without jurisdictional provisions and directions, an application for s. 24(1)  relief in a criminal case should follow the framework and procedures set up by the Criminal Code . The Charter  was created to form an important part of our legal system and must fit into the existing scheme.

 

                   A magistrate sitting at a preliminary hearing is not a court of competent jurisdiction within the meaning of s. 24 . The limited jurisdiction conferred on him in Part XV of the Code does not permit him to hear and determine the question of whether or not a Charter  right has been infringed or denied. He has also no jurisdiction to exclude evidence under s. 24(2) . Exclusion of evidence under that section is a remedy, its application being limited to proceedings under s. 24(1) .

 

                   The courts of criminal jurisdiction, as defined in s. 2 of the Code, and the summary conviction courts will be courts of competent jurisdiction where they have jurisdiction conferred by statute over the offences and persons and have the power to make the order sought. The remedies granted by these courts must remain within the ambit of criminal powers. There will be no jurisdiction in these courts, however, where prerogative relief is sought, or where a claim for relief, if granted, would involve interference in proceedings before another court.

 

                   The provincial superior court will always be a court of competent jurisdiction under s. 24(1)  of the Charter  at first instance, that is to say, in cases where the issue arises in proceedings before it. The superior court will of course continue to have jurisdiction as a reviewing court where prerogative claims are made or advanced.

 

                   When it is advisable to move for relief before trial under s. 24(1)  of the Charter , the pre‑trial motion and its near relative, the preliminary motion or preliminary objection may be employed once an indictment has been preferred.

 

                   The grant or denial of Charter  relief is appealable as a question of law under the Code. Interlocutory appeals in respect of refusals or grants of Charter  remedies under s. 24(1)  are not available, however, because they are not authorized in the Code.

 

                   The infringement of a Charter  right does not of itself give rise to jurisdictional error and there is no reason to characterize some Charter  violations as jurisdictional and others as not. When a Charter  right is violated, s. 24(1)  authorizes the court to grant an appropriate remedy. It neither excludes the court from further participation in the matter nor specifies the remedy. The remedy will vary with the circumstances.

 

                   While appellant's motion included a claim for non‑prerogative relief under the Charter , the appeal under s. 719  of the Criminal Code  applied only to the prerogative portion of the application. Here, since the preliminary hearing magistrate had no jurisdiction to grant s. 24(1)  relief, he did not exceed his jurisdiction. Consequently, the superior court judge's dismissal of the claim for prohibition and certiorari is sustainable and this appeal must be dismissed.

 

                   Per La Forest J.: A preliminary hearing magistrate is not a "court of competent jurisdiction", within the meaning of s. 24(1)  of the Charter , for determining whether an accused's right "to be tried within a reasonable time" has been violated. The task of the preliminary hearing magistrate under the Criminal Code  is limited and there is no warrant in the Charter  for extending it. He has also no jurisdiction to exclude evidence under s. 24(2) . While this power seems similar to the magistrate's duty regarding admissibility of evidence, what is involved is the granting of a remedy under s. 24(2) .

 

                   There must be at all times a court of competent jurisdiction to provide and enforce a remedy when needed, and this remedy should, in general, be accorded within the normal procedural context in which an issue arises. While the trial court will ordinarily be the appropriate court to grant a remedy under s. 24(1) , where such a court has not yet been set at the time when a remedy is required, or where a court is an inappropriate forum to seek a remedy because it is itself implicated in the breach of a constitutional right, the competent court must be the superior court of the province in the exercise of its inherent jurisdiction. This jurisdiction should only be exercised when it is necessary to give an appropriate remedy and where there is no other court in a position to do so. On a s. 24(1)  application for a remedy against unreasonable delay, a superior court judge should generally confine his jurisdiction to attempting to prevent existing causes for delay and ongoing prejudice to an accused and should refrain from attempting to remedy past delays. The trial judge will be in a better position to deal with those delays when the case comes before him and to accord such remedies as can reasonably be afforded under criminal law jurisdiction.

 

                   From committal onwards, it is doubtful that one can rely on pre‑trial motions to a judge other than a superior court judge to give effect to Charter  remedies. The existing remedies by way of pre‑trial motion are grounded in specific statutory powers. Superior court judges are the only judges with the inherent jurisdiction to grant other remedies.

 

                   The violation of an accused's right to be tried within a reasonable time neither gives rise to a jurisdictional issue nor necessarily results in a stay of proceedings. To categorize unreasonable delay as jurisdictional and to make a stay the only possible judicial response is inconsistent with the text of s. 24(1)  which provides for such remedy as may be appropriate and just in the circumstances. In many cases, the most obvious remedy for delay would be to expedite the proceedings. The draconian remedy of a stay should be reserved for the more compelling cases.

 

                   In the case at bar, the superior court judge was the only court competent to grant a Charter  remedy. Since neither the Charter  nor the Criminal Code  makes any provision for appeal for such an application, the matter should be returned to the preliminary hearing judge and the question of unreasonable delay should ultimately be dealt with by the trial judge if the accused is committed for trial.

 

                   Per Dickson C.J. and Lamer J., dissenting: A court of competent jurisdiction in an extant case is a court that has jurisdiction over the person and the subject matter, as well as jurisdiction to order, under the criminal or penal law, the remedy sought pursuant to the Charter . Generally, the court of competent jurisdiction is the trial court, and that court enjoys the full panoply of criminal law remedial powers. A judge presiding at a preliminary inquiry, therefore, is not a court of competent jurisdiction for the purpose of granting a remedy under s. 24(1) . He is, nevertheless, a court of competent jurisdiction to determine under s. 24(1)  whether a violation has occurred for the purpose of excluding evidence under s. 24(2) . The sole purpose of a judge's conducting a preliminary hearing is to determine whether there is sufficient evidence to put the accused on trial. There is no reason why the power to exclude probative evidence for policy reasons cannot equally be exercised under s. 24(2)  of the Charter .

 

                   An accused alleging a s. 11 (b) violation must be heard, as soon as possible under s. 24(1) , by a judge of the court where his trial is to be held. To ensure a prompt, just and effective remedy, the trial court should be ready to grant an appropriate remedy for a s. 11 (b) violation as soon as the accused is entitled to it and falls within its jurisdiction. This can be done through a system of pre‑trial hearings. The superior court, while it has concurrent original jurisdiction to hear a s. 24(1)  application, will usually exercise its discretion to decline jurisdiction and leave the dispensation of Charter  remedies to the normal trial process and its appeal system when there is a trial court competent to award just and appropriate relief. When a violation of s. 11 (b) is complete at any stage prior to committal, the accused will properly seek his remedy under s. 24(1)  from the superior court.

 

                   The violation of an accused's right under s. 11 (b) is jurisdictional in nature. A person charged must be tried within a reasonable time, beyond which, no court has jurisdiction to try that person. When, in an inferior court, a jurisdictional issue arises which also constitutes a Charter  violation, a person may seek relief in the superior court through an application under s. 24(1) , the prerogative writs, or both. Such an application is, for remedial purposes, to be considered an application under s. 24(1) , and, for appeal purposes under s. 719 of the Code, to be considered an application for the issuance of a writ, and, upon such appeal, all remedies are open to review. This is an exception to the general rule that there is no appeal from an interlocutory decision in criminal matters except where the decision has the effect of terminating the proceedings, such as, for example, the entering of a stay of proceedings.

 

                   Section 11 (b) of the Charter  gives an accused the right to be tried within a reasonable time. The fundamental purpose of that section is to protect the rights set forth in s. 7 . In the context of s. 11 (b), however, the concept of security of the person is not restricted to physical integrity; rather, it encompasses protection against overlong subjection to the vexations and vicissitudes of a pending criminal accusation. Section 11 (b) is to limit the impact of various forms of prejudice to the accused‑‑who is presumed innocent‑‑by circumscribing the time period within which they may occur.

 

                   To determine whether an accused's right under s. 11 (b) has been infringed, the court should adopt a reasonableness test which involves a balancing of the impairment of the accused's interests, such impairment becoming increasingly pronounced with the passage of time, against three other factors: (1) waiver of time periods; (2) the time requirements inherent in the nature of the case and (3) the limitations to institutional resources.

 

                   The time frame to be considered in computing trial within a reasonable time only runs from the moment a person is charged. Prior to the charge, the individual is not normally subject to restraint and does not stand accused before the community of committing a crime. Thus, those aspects of the liberty and security of the person protected by s. 11 (b) are not normally placed in jeopardy prior to the institution of judicial proceedings against the individual. Generally, a person is charged under s. 11 (b), as of (a) the service of a summons or the execution of a warrant pursuant to the laying of an information under s. 455.3  of the Criminal Code ; or (b) the issuance of an appearance notice under s. 451 of the Code or release from custody under ss. 452 or 453 of the Code; or (c) the arrest, in the case of all other arrested persons not covered by (a) or (b). Finally, the reasonableness test will remain essentially the same for both pre‑Charter  and post‑Charter delay.

 

                   Section 24  remedies apply to contraventions of Charter  rights taking place in a proceeding being carried on after the Charter 's proclamation, even though that proceeding was instituted before its enactment.

 

                   Where, on balancing the various factors, a court decides that the accused's right to be tried within a reasonable time has been contravened, a stay of proceedings will be the appropriate remedy. Such remedy is a minimum to which others may be added. In the case at bar, the ten month period of inaction due to negligence on the part of the Crown renders the overall period to bring this man to trial unreasonable. The proceedings before the trial judge should be stayed.

 

                   Per Wilson J., dissenting: When a violation of s. 11 (b) is alleged, the accused must demonstrate that he has suffered an impairment of his liberty and security interests, not as a result of the Crown's having charged him, but as a result of the Crown's failure to bring him to trial within a reasonable time. The point at which the delay becomes unreasonable and unconstitutional is the point at which the accused's right under s. 11 (b) is violated. All that precedes that point must be accepted as inherent in the nature of the process.

 

                   Although the accused's right to a fair trial is protected by s. 11 (d) of the Charter , one of the relevant considerations in deciding whether or not a delay is unreasonable under s. 11 (b) is whether the accused's ability to make full answer and defence to the charge has been impaired by it. The right to make full answer and defence is a cornerstone of the justice system and a delay which has the effect of eroding it cannot be considered reasonable. Hence this may provide an alternate basis of violation under s. 11 (b).

 

Cases Cited

 

By McIntyre J.

 

                   R. v. Morgentaler (1984), 41 C.R. (3d) 262; Re Bird and Peebles and The Queen (1984), 12 C.C.C. (3d) 523, considered; Re Laurendeau and The Queen (1983), 9 C.C.C. (3d) 206; Re Ritter and The Queen (1984), 11 C.C.C. (3d) 123; In re Storgoff, [1945] S.C.R. 526; Re Turangan and Chui and The Queen (1976), 32 C.C.C. (2d) 254n, referred to.

 

By La Forest J.

 

                   Ashby v. White (1703), 2 Ld. Raym. 938, 92 E.R. 126; R. v. Richardson (1984), 56 N.B.R. (2d) 172; Barker v. Wingo, 407 U.S. 514 (1972); Strunk v. United States, 412 U.S. 434 (1973); United States v. Ewell, 383 U.S. 116 (1966), referred to.

 

By Lamer J. (dissenting)

 

                   Re Siegel and The Queen (1982), 1 C.C.C. (3d) 253; Re Potma and The Queen (1982), 67 C.C.C. (2d) 19 (Ont. H.C.), aff'd (1983), 2 C.C.C. (3d) 383 (Ont. C.A.); R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, aff'g (1983), 9 C.C.C. (3d) 310 (Alta. C.A.); Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66; R. v. Belton (1982), 3 C.C.C. (3d) 427; Blackwoods Beverages Ltd. v. R., [1985] 2 W.W.R. 159; R. v. Cranston (1983), 55 N.S.R. (2d) 376; Canadian Newspapers Co. v. Attorney‑General for Canada (1985), 49 O.R. (2d) 557; Re Kendall and The Queen; Re McCaffery and The Queen (1982), 2 C.C.C. (3d) 224; R. v. Cameron (1982), 3 C.C.C. (3d) 496; Re Anson and The Queen (1983), 146 D.L.R. (3d) 661; Re Laurendeau and The Queen (1983), 9 C.C.C. (3d) 206; ACL Canada Inc. v. Hunter (1983), 8 C.C.C. (3d) 190; R. v. Crate (1983), 7 C.C.C. (3d) 127; R. v. Ritter, [1984] 2 W.W.R. 623; Re Bird and Peebles and The Queen (1984), 12 C.C.C. (3d) 523; R. v. Petrovic (1984), 47 O.R. (2d) 97; R. v. Kohler (1984), 5 O.A.C. 317; R. v. Morgentaler (1984), 41 C.R. (3d) 262; Re Genaille and The Queen (1983), 6 C.C.C. (3d) 440; R. and Thornton v. Century Helicop‑ ters Inc. (1983), 51 A.R. 395; Re Bank of Nova Scotia (1983), 10 W.C.B. 429; R. L. Crain Inc. v. Couture (1983), 6 D.L.R. (4th) 478; R. v. Erickson, [1984] 5 W.W.R. 577; R. v. Red Hot Video Ltd. (1983), 6 C.C.C. (3d) 331; Re Service Employees’ International Union, Local 204 and Broadway Manor Nursing Home (1983), 44 O.R. (2d) 392; Re Rahey and The Queen (1984), 13 C.C.C. (3d) 297 (N.S.C.A.) rev'g (1983), 9 C.C.C. (3d) 385 (N.S.S.C.); In re Gittens, [1983] 1 F.C. 152; R. v. M. (1982), 70 C.C.C. (2d) 123; Re Koumoudouros and Municipality of Metropolitan Toronto (1982), 67 C.C.C. (2d) 193; Re Regina and Brooks (1982), 1 C.C.C. (3d) 506; Re Uba and The Queen (1983), 5 C.C.C. (3d) 529; Re Legal Services Society and Brahan (1983), 5 C.C.C. (3d) 404; Re Conroy and The Queen (1983), 5 C.C.C. (3d) 501; Re Mitchell and The Queen (1983), 6 C.C.C. (3d) 193; R. v. Tso Tung Quan (1984), 9 C.R.R. 375; Re Regina and Henyu (1984), 11 C.C.C. (3d) 404; Re Hussey and Attorney‑General for Ontario (1984), 13 C.C.C. (3d) 81; Re Pattyson and The Queen (1984), 13 C.C.C. (3d) 477; R. v. Germain (1984), 53 A.R. 264; R. v. Wilson (1982), 37 A.R. 170; R. v. Dezwirek (1983), 4 C.C.C. (3d) 69; R. v. Baker (1983), 10 W.C.B. 10; Re Regina and Thompson (1983), 8 C.C.C. (3d) 127; R. v. Sensenstein (1983), 2 C.R.R. 296; Re Lamberti and Didkowski (1983), 26 Sask. R. 213; Re Regina and Morrison (1984), 47 O.R. 185; Re Bank of Nova Scotia and The Queen (1983), 7 C.C.C. (3d) 165; R. v. Coleman (1982), 9 W.C.B. 232; R. v. Kramer (1982), 10 W.C.B. 452; R. v. Bank of Nova Scotia (1982), 10 W.C.B. 451; R. v. Vermette (No. 4) (1982), 1 C.C.C. (3d) 477; R. v. S. B., [1983] 1 W.W.R. 512; R. v. Burns (1982), 2 C.C.C. (3d) 283; Re Global Communications Ltd. and Attorney‑General of Canada (1983), 5 C.C.C. (3d) 346; Board v. Board, [1919] A.C. 956; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Re Krakowski and The Queen (1983), 4 C.C.C. (3d) 188; Antares Shipping Corp. v. The Ship "Capricorn", [1977] 2 S.C.R. 422; Southern Pacific Co. v. M. Botner & Sons Inc., Canadian Javelin; Canadian Javelin Ltd. (Dans l'affaire de): Plam c. Sparling, [1979] C.S. 465; R. v. Jewitt, [1985] 2 S.C.R. 128; Government of the Republic of Italy v. Piperno, [1982] 1 S.C.R. 320; Bolduc v. Attorney General of Quebec, [1982] 1 S.C.R. 573; Rourke v. The Queen, [1978] 1 S.C.R. 1021, aff'g (1975), 25 C.C.C. (2d) 555; Re Regina and Beason (1983), 7 C.C.C. (3d) 20; R. v. Heaslip (1983), 36 C.R. (3d) 309; Belyea v. The King, [1932] S.C.R. 279; R. v. Antoine (1983), 5 C.C.C. (3d) 97; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Barker v. Wingo, 407 U.S. 514 (1972); Dickey v. Florida, 398 U.S. 30 (1970); United States v. Ewell, 383 U.S. 116 (1966); Duncan v. Louisiana, 391 U.S. 145 (1968); Klopfer v. North Carolina, 386 U.S. 213 (1967); R. v. Dennis, Kubin and Frank (1984), 14 D.L.R. (4th) 205; R. v. Perry (1984), 14 C.C.C. (3d) 5; Re Kott and The Queen (1983), 7 C.C.C. (3d) 317; United States v. MacDonald, 456 U.S. 1 (1982); Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; Carnley v. Cochran, 369 U.S. 506 (1962); Eur. Court H. R., Wemhoff case, judgment of 27 June 1968, Series A No. 7; State v. Fasket, 5 Rich. (39 SCL) 255 (1851); Taylor v. United States, 238 F.2d 259 (1956); United States v. Provoo, 17 F.R.D. 183 (1955 D.C.Md.), aff'd 350 U.S. 857 (1955); United States v. Chase, 135 F. Supp. 230 (1955); Edwards v. Attorney‑General for Canada, [1930] A.C. 124; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; R. v. Dahlem (1983), 25 Sask. R. 10; R. v. H. W. Corkum Construction Co. (1983), 57 N.S.R. (2d) 241; R. v. Belcourt (1982), 69 C.C.C. (2d) 286; R. v. Boron (1983), 36 C.R. (3d) 329; R. v. Lefort (1984), 12 C.C.C. (3d) 332; Re Regina and Carter (1983), 9 C.C.C. (3d) 173; R. v. Young (1984), 13 C.C.C. (3d) 1; Attorney General of British Columbia v. Craig Prov. J. (1983), 36 C.R. (3d) 346; R. v. Chabot, [1980] 2 S.C.R. 985; R. v. Therens, [1985] 1 S.C.R. 613; Eur. Court H. R., Deweer case, judgment of 27 February 1980, Series A No. 35; Strunk v. United States, 412 U.S. 434 (1973).

 

Statutes and Regulations Cited

 

California Penal Code § 1382 (West 1985).

 

Canadian Charter of Rights and Freedoms, ss. 7 , 8 , 11 (b), (d), (e), (h), 24 , 26 .

 

Colorado Criminal Code, Colo. Rev. Stat. § 18‑1‑405 (1973).

 

Criminal Code, R.S.C. 1970, c. C‑34 as amended, ss. 2 "court of criminal jurisdiction", "superior court of criminal jurisdiction", 363, 426, 451, 452, 453, 455.3, 457.7, 459, 465, 468, 475, 510, 516, 520(3), 529, 602, 603, 618, 619, 620, 719, 720 "summary conviction court", 732, 732.1.

 

Criminal Code , 18 U.S.C. § 3161 (c)(1) (1982).

 

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (1950), art. 5(3).

 

Illinois Code of Criminal Procedure, Ill. Ann. Stat. ch. 38, § 103‑5 (Smith‑Hurd 1980).

 

International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966), art. 2(3), 9(3).

 

Michigan Code of Criminal Procedure, Mich. Stat. Ann. § 28.978 (Callaghan 1985).

 

Pennsylvania Rules of Criminal Procedure, Rule 1100(a)(2), 42 Pa. Cons. Stat. Ann. (Purdon 1985).

 

South Carolina Code of Criminal Procedure, S.C. Code Ann. § 17‑23‑90 (Law Co‑op. 1985).

 

Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 8 .

 

 

Authors Cited

 

Amsterdam, A. G. "Speedy Criminal Trial: Rights and Remedies," 27 Stan. L. Rev. 525 (1975).

 

Dicey, A. V. The Law of the Constitution, 10th ed., London, MacMillan & Co., 1959.

 

Ewaschuk, E. G. "The Charter : An Overview and Remedies" (1982), 26 C.R. (3d) 54.

 

Garton G. "Re Canadian Charter of Rights and Freedoms, S. 11(b): The Relevance of Pre‑Charge Delay in Assessing the Right to Trial Within a Reasonable Time" (1984), 46 Nfld. & P.E.I.R. 177.

 

Gold, A. D. Annual Review of Criminal Law, Toronto, Carswells, 1982.

 

Hogg, P. W. Canada Act 1982 Annotated, Toronto, Carswells, 1982.

 

Levy, J. C. "The Invocation of Remedies Under the Charter of Rights  and Freedoms: Some Procedural Considerations" (1983), 13 Man. L.J. 523.

 

Manning, M. Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982, Toronto, Emond‑Montgomery Ltd., 1983.

 

Note. "The Lagging Right to a Speedy Trial," 51 Va. L. Rev. 1587 (1965).

 

Richards J. G. and G. J. Smith. "Applying the Charter " (1983), 4 Advocates’ Q. 129.

 

Salhany, R. E. Canadian Criminal Procedure, 4th ed., Aurora, Canada Law Book Inc., 1984.

 

Uviller, H. R. "Barker v. Wingo: Speedy Trial Gets a Fast Shuffle," 72 Colum. L. Rev. 1376 (1972).

 

                   APPEAL from a judgment of the Ontario Court of Appeal (1983), 7 C.C.C. (3d) 573, 6 C.R.R. 88, 2 D.L.R. (4th) 576, 43 O.R. (2d) 631, dismissing appellant's appeal from a judgment of Osborne J. (1983), 2 C.C.C. (3d) 444, 3 C.R.R. 63, 144 D.L.R. (3d) 422, 40 O.R. (2d) 112, dismissing appellant's applications for a stay of proceedings. Appeal dismissed, Dickson C.J. and Lamer and Wilson JJ. dissenting.

 

                   Julius Melnitzer and D. Fletcher Dawson, for the appellant.

 

                   David H. Doherty, Q.C., and M. S. T. Wine, for the respondent.

 

                   The reasons of Dickson C.J. and Lamer J. were delivered by

 

1.                Lamer J. (dissenting)‑‑One should be forewarned that the facts in this case are intricate and, to some extent, uncertain; that the proceedings are multiple and the fact that they vary from one level of court to the other further complicates matters; that these difficulties are compounded by the fact that we are addressing the insertion into the common law system of remedies and courts of a new system of rights and remedies hitherto foreign to the common law approach.

 

2.                At his preliminary inquiry, the accused‑appellant brought a motion to stay the proceedings, alleging abuse of process under the common law and a violation of his rights under s. 11 (b) of the Canadian Charter of Rights and Freedoms , specifically, that he had been denied his right to be tried within a reasonable time.

 

3.                The appellant's motion was denied and his challenges of that decision were unsuccessful. The appellant was granted leave to appeal to this Court at large and suggests that the issues in this case are as follows:

 

IIs a judge or justice presiding at a preliminary inquiry a court of competent jurisdiction for the purposes of an application under section 24(1)  of the Charter  where the application alleges a breach of section 11 (b) rights?

 

IIIs a judge of the Supreme Court of Ontario a court of competent jurisdiction for the purposes of an originating application under section 24(1)  of the Charter  where the application alleges a breach of section 11 (b) rights?

 

IIIAssuming that a judge presiding at a preliminary hearing is a court of competent jurisdiction, is the decision of the inferior court susceptible to review either by prerogative writ or by independent application to a superior court pursuant to section 24(1)  of the Charter ?

 

IVDid the Court of Appeal for Ontario err in concluding that the appellant's constitutional right to be tried within a reasonable time as guaranteed by section 11 (b) of the Canadian Charter of Rights and Freedoms  had not been violated?

 

4.                The first three issues raise basic procedural questions concerning the mechanisms for obtaining Charter  relief, review and appeal of determinations under s. 24(1)  of the Charter . They will, in fact, determine which of the appellant's applications are properly before this Court and whether we have jurisdiction to consider the substantive question asked of us by issue no. 4.

 

5.                As I will be addressing issue no. 4 in the latter part of this opinion, a narrative of the facts and an analysis of the judgments below as they relate to the question of whether the appellant's rights have been violated will be made at that time.

 

The Facts Relevant to the Jurisdictional Issues

 

6.                On March 30, 1977, an information was sworn in London, Ontario, charging the appellant with an armed robbery allegedly committed six days earlier. The appellant's first appearance in court with respect to that information was on September 25, 1981. He elected trial by judge and jury and the preliminary inquiry commenced on May 18, 1982, before His Honour Judge Baker of the Ontario Provincial Court (Criminal Division). Reasons for judgment were delivered orally on July 16, 1982, now reported at 2 C.R.R. 300. The Charter  had come into force on April 17, 1982.

 

7.                At the outset of his preliminary inquiry Mills presented a motion to Judge Baker seeking a stay of proceedings for abuse of process under the common law and for violation of his rights under s. 11 (b) of the Charter . Section 11 (b) states:

 


11.  Any person charged with an offence has the right


11.  Tout inculpé a le droit:


 


. . .


. . .


 


(b) to be tried within a reasonable time;


b) d’être jugé dans un délai raisonnable;


 

 

Both grounds failed and the motion was denied.

 

8.                With respect to the claim based on abuse of process, Judge Baker found that a "Provincial Judge lacked jurisdiction at the preliminary hearing stage to stay the proceedings for abuse of process" (p. 306). Notwithstanding that finding, he dealt with the common law application and found that, absent evidence "of wilful misconduct or oblique motives ... or of any intention to prejudice, harass or to submit this accused to oppressive treatment" (p. 308), there could be no abuse of process and accordingly dismissed the application grounded on the common law.

 

9.                Dealing with the application under the Charter , he found that, under s. 24  of the Charter , a provincial court judge presiding at a preliminary inquiry is a "court of competent jurisdiction to deal with this matter" (p. 308). Section 24  provides:

 


                   24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.


                   24. (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s’adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances.


 


                   (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.


                   (2) Lorsque, dans une instance visée au paragraphe (1), le tribunal a conclu que des éléments de preuve ont été obtenus dans des conditions qui portent atteinte aux droits ou libertés garantis par la présente charte, ces éléments de preuve sont écartés s’il est établi, eu égard aux circonstances, que leur utilisation est susceptible de déconsidérer l’administration de la justice.


 

 

10.              The application was then dismissed, the only ground stated being that s. 24  had only a prospective effect.

 

11.              The appellant moved to challenge that ruling in the Ontario Supreme Court, invoking both its original and supervisory jurisdictions. The appellant's motions in that Court failed (1983), 3 C.R.R. 63, 2 C.C.C. (3d) 444, 144 D.L.R. (3d) 422, 40 O.R. (2d) 112, as did his appeal in the Ontario Court of Appeal (1983), 6 C.R.R. 88, 7 C.C.C. (3d) 573, 2 D.L.R. (4th) 576, 43 O.R. (2d) 631.

 

12.              From a scrutiny of the proceedings and of the judgments below, my understanding of the events that took place subsequent to Judge Baker's decision is as follows:

 

13.              Mills applied to the Supreme Court of Ontario's motions court in two capacities:

 

1‑‑As a Superior Court of general jurisdiction with an application for a remedy under the Charter  in a case being processed in a lower court;

 

2‑‑As a Superior Court in its supervisory capacity over decisions of inferior courts through the prerogative writs (certiorari and prohibition), alleging that Judge Baker had committed a jurisdictional error by:

 

(a) his disposition of the motion to stay under the common law for abuse of process: first, by finding that he did not have jurisdiction to stay proceedings for abuse of process; second, by finding that, in any event, there had been no abuse of process, and,

 

(b) finding no violation of the accused's Charter  rights under s. 11 (b) on the grounds that s. 24  did not apply to a pre‑Charter  charge.

 

14.              In his judgment, Osborne J. commented on the nature of the proceedings and summarized the applicant's position as follows ((1983), 2 C.C.C. (3d) 444, at p. 450):

 

The applicant's position, as carefully and fully outlined by Mr. Melnitzer [Mr. Melnitzer is the appellant's Attorney], is that in the face of a violation of a Charter  right to trial within a reasonable time, the provincial court judge has lost jurisdiction over the accused in such a way as to entitle the accused to the relief sought before me. Mr. Melnitzer distinguished this route to jurisdiction from a simple appeal from Judge Baker's decision on the Charter  issue.

 

15.              Osborne J. then referred with approval to the Supreme Court of Ontario judgments by O'Driscoll J. in Re Siegel and The Queen (1982), 1 C.C.C. (3d) 253, and of Eberle J. in Re Potma and The Queen (1982), 67 C.C.C. (2d) 19, appeal to Ontario Court of Appeal was since dismissed: (1983), 2 C.C.C. (3d) 383. These cases were concerned with applications under s. 24(2)  of the Charter  to exclude evidence. In Osborne J.'s view, those judgments, and more particularly O'Driscoll J.'s decision in Siegel, supra, held that "on an application under s. 24  to exclude evidence a `court of competent jurisdiction' refers to either the trial judge or the judge sitting at the preliminary hearing".

 

16.              Of the motions, he said, at p. 451:

 

It is therefore difficult to see how a judge in motions court can have jurisdiction to entertain a motion such as this, unless the application can reasonably be characterized as being in the nature of an application for a prerogative writ. This application can be so characterized, at least in so far as the Charter  issue it raises is concerned. It is not an appeal from Judge Baker's abuse of process and Charter decision. In most cases applications for Charter  relief, under s. 24 , arising out of alleged violations of Charter  rights should be heard by the trial judge or the judge presiding at the preliminary inquiry.

 

17.              He then exercised his supervisory jurisdiction and considered whether prerogative writs should issue.

 

18.              As regards the Charter  application, he agreed with the provincial court judge that when such a judge is sitting at a preliminary inquiry, he is a court of competent jurisdiction to deal with an application under s. 24(1)  for a remedy, subsequent to a violation of an accused's right under s. 11 (b). He also agreed, though only in the result, with the finding that there had been no violation. I should mention that, while both judges found a preliminary inquiry judge to be "a court of competent jurisdiction" under s. 24 , no mention was made by either judge as to any limits as regards the remedies such preliminary inquiry judges could give the accused under the Charter , including whether a stay could be entered by such a judge.

 

19.              When considering the disposition by Judge Baker of the common law application, Osborne J. found that Judge Baker had erred as regards his own jurisdiction and said, at p. 461, "that a provincial court judge does have jurisdiction to deal with abuse of process even while presiding over a preliminary inquiry", but agreed with him that there in fact had not been an abuse of process. "The delay attributable to the authorities", he said, "is the product of negligence not vexatiousness". Osborne J. did not say whether a stay was part of the arsenal of a provincial court judge sitting at a preliminary inquiry, or whether the judge was limited to discharging the accused. Also, in passing, it is not clear whether Osborne J. was of the view that a justice of the peace holding a preliminary inquiry, under Part XV of the Criminal Code , enjoys the same jurisdiction as a provincial court judge acting in the same capacity.

 

20.              It is clear that Osborne J. was of the view that a supreme court justice sitting in motions court does not have an original jurisdiction under s. 24  when the matter is pending before an inferior court. It can at best be inferred that, due to his failure to refer the matter to another chamber of the Supreme Court of Ontario, he was equally of the view that no chamber of the Supreme Court has, under s. 24 , any jurisdiction when the matter is before another court. As a result of Osborne J.'s comments and review of Judge Baker's findings as regards s. 11 (b) and s. 24(1)  of the Charter  through the prerogative writ application, one can with certainty conclude that he considered a finding under s. 24(1) , at least one in relation to s. 11 (b), as reviewable under the prerogative writs. One cannot ascertain, at least not with any certainty, whether his assumption of jurisdiction through such writs was the result of his characterization of Charter  violations and/or of decisions in relation to such violations as going to jurisdiction, or only to some, one of which being a violation of s. 11 (b). However, one can fairly assume that, had he intended to enlarge the availability of such writs to non‑jurisdictional matters, he would have said so expressly.

 

21.              The matter was then appealed to the Court of Appeal under s. 719 of the Code which authorizes the taking of an appeal in certiorari and prohibition. It would be inaccurate to say that the appellant did not appeal the s. 24  issue. He only made one application to Osborne J. and he appealed Osborne J.'s disposition of that application. However, the s. 719  conduit is narrow and, prior to the Charter , has only allowed the courts of appeal to respond in certiorari or prohibition, and within the traditional remedial powers granted under those writs. The question therefore immediately arises, and was, though somewhat differently raised by the respondent, as to whether by seeking prohibition and then appealing the refusal, the appellant is able to argue in the Court of Appeal and in this Court all matters raised in the application for prohibition in the first instance and then have access to the full panoply of remedial powers granted to a judge under s. 24 .

 

22.              I would answer that question in the affirmative for reasons I will be giving later on supporting the following conclusions. I find that some violations of the Charter  go to the jurisdiction of the court in which the case is extant and that a violation of s. 11 (b) is one of them. Indeed if time has elapsed to the point beyond which no trial could be held within a reasonable time, as of then the courts have lost jurisdiction over the accused because the trial process must come to an end. I also find, for reasons elaborated upon later on, that if an application is made to a superior court judge alleging a "jurisdictional" violation, as is a violation to s. 11 (b), whatever be the vehicle chosen, that application is, for remedial purposes, an application under s. 24 , and, for appeal purposes, an application for the issuance of a writ.

 

23.              For these reasons I am of the view that the four issues referred to by the appellant are properly before us. Because the remedial powers flowing traditionally from certiorari and prohibition would in this case be sufficient, we could, I suppose, take a very narrow approach and restrict our findings to whether Osborne J. should have found a violation and, upon finding that the preliminary inquiry could not continue for loss of jurisdiction, then issue a writ. While this would be sufficient to dispose of Mills' case it would leave unanswered fundamental questions that we have been asked to address (the Crown‑respondent's factum is one indication, as are comments by counsel before this Court in subsequent Charter  appeals) such as, whether a judge at a preliminary hearing is a court of competent jurisdiction under of s. 24  of the Charter , to give but one example.

 

24.              The determination of whether a provincial court judge presiding over a preliminary inquiry is a court of competent jurisdiction to grant a remedy under s. 24(1)  and of the scope of his or her arsenal of remedies cannot be made in a vacuum, but must be made with regard to the other phases of the process, to the other courts and also, to a certain extent, to the desirability and availability of review and appeal.

 

Court of Competent Jurisdiction: s. 24(1) 

 

General Principles

 

25.              Since s. 24(1) is silent as to what is a court of competent jurisdiction, it has been left to the judiciary to determine what is the desirable adjudicative forum.

 

26.              "Court of competent jurisdiction" is not defined in the Charter . Yet its interpretation is central to the scope and effectiveness of s. 24 . In determining the meaning of that term, the purpose of the section, which, in my view, is succinctly expressed in the marginal note, must be ever present: the "enforcement of guaranteed rights and freedoms". It is that purpose, the provision of an enforcement mechanism, which above all else ensures that the Charter  will be a vibrant and vigorous instrument for the protection of the rights and freedoms of Canadians.

 

27.              Section 24(1) establishes the right to a remedy as the foundation stone for the effective enforcement of Charter  rights. This is consistent with Article 8 of the Universal Declaration of Human Rights (G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948)) and with Article 2(3) of the International Covenant on Civil and Political Rights (G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966)).

 

28.              Article 8 of the Universal Declaration of Human Rights states:

 

                   Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

 

29.              Article 2(3) of the International Covenant on Civil and Political Rights states:

 

(3) Each State Party to the present Covenant undertakes:

 

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

 

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

 

                                                                    ...

 

30.              I am of the view that a person whose Canadian Charter  rights have been infringed or denied has the right to obtain the appropriate and just remedy under the circumstances. A corollary which flows from this is the fundamental principle that there must always be a court available to grant, not only a remedy, but the remedy which is the appropriate and just one under the circumstances.

 

31.              A remedy must be easily available and constitu‑ tional rights should not be "smothered in procedural delays and difficulties", to use the words of J. G. Richards and G. J. Smith, in "Applying the Charter " (1983), 4 Advocates’ Q. 129, at p. 135. On the other hand, there is no virtue in ignoring established institutions, the practice and "work habits" of the courts and trying to reinvent the wheel. Courts throughout the country have recognized that the Charter  was not enacted in a vacuum.

 

32.              In some cases this has been done explicitly: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66; R. v. Belton (1982), 3 C.C.C. (3d) 427 (Man. C.A.), leave to appeal to this Court refused, [1983] 1 S.C.R. v; Re Potma and The Queen, supra; Blackwoods Beverages Ltd. v. R., [1985] 2 W.W.R. 159 (Man. C.A.); Re Siegel and The Queen, supra; R. v. Cranston (1983), 55 N.S.R. (2d) 376 (S.C.T.D.)

 

33.              In other cases, it is implicit: Canadian Newspapers Co. v. Attorney‑General for Canada (1985), 49 O.R. (2d) 557, leave to appeal to this Court granted, [1985] 1 S.C.R. xii; Re Kendall and The Queen; Re McCaffery and The Queen (1982), 2 C.C.C. (3d) 224 (Alta. C.A.); R. v. Cameron (1982), 3 C.C.C. (3d) 496 (Alta. C.A.); Re Anson and The Queen (1983), 146 D.L.R. (3d) 661 (B.C.C.A.); Re Laurendeau and The Queen (1983), 9 C.C.C. (3d) 206 (Que. C.A.), leave to appeal to this Court refused, [1983] 2 S.C.R. ix; ACL Canada Inc. v. Hunter (1983), 8 C.C.C. (3d) 190 (Que. C.A.); R. v. Crate (1983), 7 C.C.C. (3d) 127 (Alta. C.A.); R. v. Ritter, [1984] 2 W.W.R. 623 (B.C.C.A.); Re Bird and Peebles and The Queen (1984), 12 C.C.C. (3d) 523 (Man. C.A.); R. v. Petrovic (1984), 47 O.R. (2d) 97 (C.A.); R. v. Kohler (1984), 5 O.A.C. 317; R. v. Morgentaler (1984), 41 C.R. (3d) 262; Re Genaille and The Queen (1983), 6 C.C.C. (3d) 440 (Man. Q.B.); R. and Thornton v. Century Helicopters Inc. (1983), 51 A.R. 395 (Q.B.); Re Bank of Nova Scotia, Sask. Q.B., September 29, 1983, unreported but summarized at 10 W.C.B. 429; R. L. Crain Inc. v. Couture (1983), 6 D.L.R. (4th) 478 (Sask. Q.B.)

 

34.              The rights guaranteed under the Charter  are varied. As a result, their enforcement will, to some extent, be similarly varied. In determining from which court remedies may be sought and the procedure to be followed we should strive to achieve uniformity but must accept that there will, of necessity, be some variation, if not always as a matter of law, at least in practice.

 

35.              Some violations of Charter  rights and their remedies are in no way related to a court process. Following a violation, the person aggrieved goes to court to seek a remedy. That person goes to the court which is able to grant the remedy sought. That court is the court of competent jurisdiction, the court which is competent to grant the remedy. If, to give an example, the remedy is in the nature of damages, then, dependent upon the amount sought, the court of competent jurisdiction could be the Supreme Court of a province, the County Court, the Provincial Court, or even the Small Claims Court. If one also seeks injunctive relief, one is then precluded from going to the lower courts and must go to the superior courts. The remedy sought determines which is the court of competent jurisdiction.

 

36.              Other rights, many of which are found in s. 11  of the Charter , are those of a person who is being taken to the criminal and penal courts by a prosecution. (We need not decide here whether tribunals are included in the word "court".) There the violation is related to, or even often the result of, the court process. Generally, the range of remedies corrective of those violations will be found within the traditional powers of the court before which the person charged is to be tried, but not necessarily so. As we are here referring to the criminal and penal processes, "civil" remedies, such as damages, or declaratory relief are not traditionally found in those courts.

 

37.              Furthermore, most of our courts are, within the respective limits imposed upon them by the criminal law and civil law fields, even further limited, dependent upon their level, or even, in the criminal law field, the stage to which the proceedings have progressed. To illustrate, some judges in the system are called upon to hold not only trials but also preliminary inquiries. At trial those judges can acquit, but cannot do so when holding a preliminary inquiry.

 

Alternate Approaches

 

38.              Because a person should not be deprived of a just and appropriate remedy merely because his or her extant cause is before a court of criminal jurisdiction, it has been suggested, as a first proposition, that a court of competent jurisdiction is the court which has jurisdiction over the person and the subject matter; and that as of then, that court enjoys full jurisdiction to grant the remedy, whether or not that remedy has been traditionally part of the court's jurisdiction (see R. v. Erickson, [1984] 5 W.W.R. 577 (B.C.C.A.); R. v. Red Hot Video Ltd. (1983), 6 C.C.C. (3d) 331 (B.C. Prov. Ct.); Manning, Morris, Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982 (1983), pp. 460 and 473; Hogg, Peter, Canada Act 1982 Annotated (1982), p. 65).

 

39.              A contrary view has been expressed by the following: Canadian Newspapers Co. v. Attorney‑General for Canada, supra; Re Service Employees’ International Union, Local 204 and Broadway Manor Nursing Home (1983), 44 O.R. (2d) 392 (Div. Ct.); R. v. Crate, supra; R. v. Big M Drug Mart Ltd. (1983), 9 C.C.C. (3d) 310 (Alta. C.A.); Re Rahey and The Queen (1984), 13 C.C.C. (3d) 297 (N.S.C.A.), leave to appeal to this Court granted, [1984] 2 S.C.R. ix; R. v. Morgentaler, supra,; In re Gittens, [1983] 1 F.C. 152 (T.D.); R. v. M. (1982), 70 C.C.C. (2d) 123 (Ont. Prov. Ct.); Re Koumoudouros and Municipality of Metropolitan Toronto (1982), 67 C.C.C. (2d) 193 (Ont. H.C.); Re Regina and Brooks (1982), 1 C.C.C. (3d) 506 (Ont. H.C.); Re Uba and The Queen (1983), 5 C.C.C. (3d) 529 (Ont. H.C.); Re Legal Services Society and Brahan (1983), 5 C.C.C. (3d) 404 (B.C.S.C.); Re Conroy and The Queen (1983), 5 C.C.C. (3d) 501 (Ont. H.C.); Re Mitchell and The Queen (1983), 6 C.C.C. (3d) 193 (Ont. H.C.); R. and Thornton v. Century Helicopters Inc., supra; R. L. Crain Inc. v. Couture, supra; R. v. Tso Tung Quan (1984), 9 C.R.R. 375 (B.C. Co. Ct.); Re Regina and Henyu (1984), 11 C.C.C. (3d) 404 (B.C.S.C.); Re Hussey and Attorney‑General for Ontario (1984), 13 C.C.C. (3d) 81 (Ont. Div. Ct.); Re Pattyson and The Queen (1984), 13 C.C.C. (3d) 477 (B.C.S.C.); Ewaschuk, E. G., "The Charter : An Overview and Remedies" (1982), 26 C.R. (3d) 54, 70; Levy, J. C., "The Invocation of Remedies Under the Charter of Rights  and Freedoms: Some Procedural Considerations" (1983), 13 Man. L.J. 523, at p. 537; Richards, J. G. and Smith, G. J., loc. cit., at pp. 131 and 153.

 

40.              Under this approach, criminal courts would, when appropriate, grant civil remedies in addition to those remedies that are traditionally within their jurisdiction (for a discussion of such a possibility for a court of superior jurisdiction, see R. v. Germain (1984), 53 A.R. 264 (Q.B.))

 

41.              Others, recognizing serious procedural and evidentiary impediments, distinguish between civil and criminal law remedies. They would, however, as a second proposition, extend to any judge having jurisdiction over the person and the subject matter jurisdiction to grant any criminal law remedy. A preliminary inquiry judge could, to give an example, enter a stay in any type of case, whatever be the charge, and whichever be the eventual trial court (R. v. Wilson (1982), 37 A.R. 170 (Prov. Ct.); R. v. Dezwirek (1983), 4 C.C.C. (3d) 69 (Ont. Prov. Ct.); R. v. Baker, B.C.S.C., May 19, 1983, unreported but summarized at 10 W.C.B. 10; contra: Re Regina and Thompson (1983), 8 C.C.C. (3d) 127 (B.C.C.A.))

 

42.              As regards the first proposition, desirable as might be a system whereby a person could get from the judge he or she is before a plenitude of remedies, this approach has to be defeated by the fundamental differences as between the civil and criminal process. To illustrate the problem briefly, it will be difficult to afford the alleged violators, susceptible to pay damages or to be the object of some injunction, a fair hearing within the criminal justice process, whilst guaranteeing the accused all traditional safeguards. Furthermore, the criminal courts are not staffed and equipped to cope with such types of determinations. Our civil courts are, and I cannot find any compelling reason why they should not determine Charter  issues for the purpose of granting remedies of a civil or administrative law nature.

 

43.              As regards the second proposition, I agree with its proponents so far as trial judges are concerned, but not as regards judges holding preliminary inquiries. I do not see the need, once the distinction between criminal and other remedies is made, for making a further distinction within the criminal law system between trial judges dependent upon the trial court in which they sit. Since they already have the jurisdiction to make a final complete determination of the trial, they already have a plenitude of criminal law remedies available, such as adjournment, bail, ordering disclosure, excluding evidence, entering stays. And I should add that they should not retreat from the development of imaginative and innovative remedies when just and appropriate. As an example, if for some reason the accused's right to a fair trial under s. 11 (d) has been violated and the prejudice suffered is that the accused is precluded from adducing certain evidence due to a witness' disappearance, I see no reason why, under certain circumstances, the proper remedy could not be that the judge consider the facts the existence of which would have, to the satisfaction of the judge, been propounded by that witness, as averred.

 

44.              In support of granting a plenitude of remedial powers to judges sitting at preliminary inquiries, the proponents thereof argue that for some violations, however, because of the nature of the right violated or because of the nature of the violation or both, the just and appropriate remedy is an immediate or an early remedy. Such is often the case in violations of rights guaranteed under s. 11 , such as being denied reasonable bail (s. 11 (e)), being retried a second time (s. 11 (h)). The need for an early remedy is even greater when the violation is of the right to be tried within a reasonable time (s. 11 (b)), where the untimeliness of the remedy in a sense becomes itself part of the perpetration of the violation.

 

45.              One can readily understand that it appears incongruous to tell an accused that he or she must wait until trial to complain about a delay in coming to trial (s. 11 (b)). The incongruity would be all the more pronounced were the accused to be directed to the court, whose process was alleged to be biased under s. 11 (d); to be told to wait until the end of trial before pleading a previous acquittal or conviction (s. 11 (h)); or to be made to stay in jail until trial because of a denial of reasonable bail (s. 11 (e)). For these reasons it is argued that judges at preliminaries should enjoy the full panoply of remedial powers.

 

46.              It is argued that because provincial court judges have a plenitude of criminal law powers when sitting as trial judges they are quite capable of assuming and dispensing adequately that jurisdiction and that their arsenal of remedies qua trial judges should follow them when they sit at preliminaries.

 

47.              Some have gone the other way and found that the magistrate (provincial court judge) when sitting at a preliminary has no jurisdiction whatsoever, i.e. is not a court of competent jurisdiction to entertain Charter  applications (R. v. Sensenstein (1983), 2 C.R.R. 296 (Ont. Prov. Ct.); Re Lamberti and Didkowski (1983), 26 Sask. R. 213  (Q.B.); Re Regina and Morrison (1984), 47 O.R. 185 (H.C.) contra: Re Bank of Nova Scotia and The Queen (1983), 7 C.C.C. (3d) 165 (Sask. C.A.); R. v. Wilson, supra; R. v. Coleman, Alta. Prov. Ct., October 20, 1982, unreported but summarized at 9 W.C.B. 232; R. v. Kramer, Sask. Prov. Ct., October 15, 1982, unreported but summarized at 10 W.C.B. 452; R. v. Bank of Nova Scotia, Sask. Prov. Ct., December 6, 1982, unreported but summarized at 10 W.C.B. 451; R. v. Dezwirek, supra; Levy, J. C., loc. cit., at p. 540). The most comprehensive decision on point decision can be found in J. Holland J.'s judgment in Re Regina and Morrison, supra, where he states at pp. 204‑05:

 

                    It is my view that the reasoning in Mills relating to the question of competent jurisdiction must be seen to be on `hold'. It is with regret that I state that I am in respectful disagreement with my brother Osborne with respect to his comments on the jurisdiction of the provincial court judge conducting a preliminary inquiry.

 

                    The view which I hold is that a provincial court judge conducting a preliminary inquiry is not a court of competent jurisdiction under s. 24(1)  of the Charter . That judge is not empowered to try the charge but rather, to carry out the express function set in Part XV of the Criminal Code . This jurisdiction has been commented upon in many cases.

 

48.              He then referred to the cases illustrating the limited jurisdiction enjoyed under the Criminal Code  by judges conducting a preliminary inquiry. And then further said, at p. 206:

 

                    It is beyond dispute, on present authority, that the sole function of a provincial court judge conducting a preliminary inquiry under Part XV and where the charge is valid, is to determine whether the evidence adduced at the inquiry is sufficient to warrant committing the accused for trial. This does not include the right to grant relief on the grounds of s. 11 (b) of the Charter .

 

                    I conclude here that the judge below committed jurisdictional errors in holding that he was a court of competent jurisdiction and that he was empowered to grant relief under s. 11 (b). Accordingly, his decision, made without jurisdiction, must be quashed and the matter remitted back to him to complete the preliminary inquiry according to law.

 

49.              It would appear from the foregoing that two reasons are invoked for excluding judges who preside at preliminary inquiries from being considered as "courts of competent jurisdiction". The first is that they cannot make a final determination as to guilt and therefore do not enjoy a full panoply of remedial powers. The second is that they should not be given remedial powers under the Charter  that they do not otherwise have because they do not function in the proper setting for making determinations under s. 24 .

 

50.              I agree that a judge presiding at a preliminary inquiry is not a court of competent jurisdiction for the purpose of granting a remedy under s. 24(1) . This finding is subject to one exception however. I am of the view that the preliminary inquiry judge is a court of competent jurisdiction for making a finding under s. 24(1)  as regards a violation for the purpose of excluding evidence under s. 24(2) .

 

51.              The purpose of a preliminary inquiry is to determine whether there is admissible evidence that is sufficient to put the accused on trial. That is the judge's sole function. But in discharging this function the judge must address not only the probative value of evidence but also its admissibility in law. The judge does exclude perfectly probative evidence as inadmissible under exclusionary rules of evidence predicated upon overriding policy considerations. I see no reason why this power to exclude probative evidence for policy reasons cannot equally be exercised under s. 24(2)  of the Charter . Section 24(2)  is not really remedy oriented though of course its results, when the application is successful, are beneficial to the accused. The concern is one of policy, the protection of the justice system, as are predicated upon policy the exclusion rules that preclude the adduction of perfectly probative evidence.

 

52.              For those reasons, and to summarize, I am of the view that:

 

‑‑A court of competent jurisdiction in an extant case is a court that has jurisdiction over the person, the subject matter and has, under the criminal or penal law, jurisdiction to grant the remedy;

 

‑‑As a general rule, the court of competent jurisdiction is the trial court;

 

‑‑A judge presiding at a preliminary inquiry is a court of competent jurisdiction to determine whether there has been a violation, but only if the order sought is the exclusion of evidence under s. 24(2) .

 

53.              For some, this would suffice. The trial court would, without exception (for others subject to the exception I am proposing), be the sole court of competent jurisdiction. This view, at first blush, has a certain appeal. It is simple and straightforward, free of a number of cumbersome problems which might otherwise arise. It introduces no additional delays, follows the usual appeal process and avoids any potential jurisdictional conflicts.

 

54.              Yet what it gains in simplicity it loses in effectiveness. For such a system would not permit early or immediate access to a remedy when such is clearly needed, e.g. under s. 11 (e), the right not to be denied reasonable bail, or when delay itself is a perpetuation of the Charter  violation, e.g. under s. 11 (b), the right to be tried within a reasonable time. In such instances, denial of early access to a remedy is, in effect, denial of the "appropriate and just [remedy] in the circumstances". Denial of early access in such cases must not be countenanced; it would elevate simplicity of procedure above effectiveness of remedy. Simplicity must yield to the greater need for ensuring prompt access to a just, appropriate and effective remedy.

 

55.              For these reasons, I have come to the conclusion that the preferable, alas somewhat more complex, alternate solution to this problem is to acknowledge:

 

1‑‑ Pre‑trial motions to the trial court, and

 

2‑‑ Original concurrent jurisdiction in the superior court, in cases extant before lower courts.

 

Pre‑Trial Motions

 

56.              As soon as the trial court is determined, in cases where a preliminary inquiry is not to be held and, if one is to be held, as of committal, an accused, alleging before the date set for trial that a s. 11 (b) violation has already occurred, must be given access to a judge of the court where his trial will be held, for the purpose of determining whether such a violation has occurred.

 

57.              This can be done by a system of pre‑trial hearings. This could also be achieved through administrative measures whereby the trial date would be advanced and trials commenced earlier than expected, at least for the limited purpose of making that urgent ruling. That is as much as we should say on the matter. These questions are best dealt with locally. What this Court should limit itself to saying is that trial courts should be in some way ready to grant the remedy for a s. 11 (b) violation as soon as an accused is entitled thereto and is within the jurisdiction of the trial court.

 

Concurrent Jurisdiction in the Superior Court

 

58.              I am not here addressing the superior court's original jurisdiction as a trial court before which the trial of an offence is taking place or to which a person has been committed for trial. In such cases, that court's jurisdiction qua trial court, is no different from any other.

 

59.              I am rather considering whether the superior court of a province is a court of competent jurisdiction for the purpose of an originating application under s. 24(1)  where the extant case is pending before an inferior court, and irrespective of whether an application has been made below.

 

60.              At first glance there might not appear to be a great need for granting concurrent original jurisdiction to the superior court. After all, the Criminal Code  trial courts have a plenitude of criminal law powers, and whatever is missing in the criminal courts can be found in the civil courts.

 

61.              Nevertheless, as a matter of principle and for practical purposes, I am in favour of acknowledging constant, complete, and concurrent jurisdiction in the superior court, as some courts seem to have done: R. v. Vermette (No. 4) (1982), 1 C.C.C. (3d) 477 (Que. S.C.); R. v. S. B., [1983] 1 W.W.R. 512 (B.C.S.C.); R. v. Burns (1982), 2 C.C.C. (3d) 283 (Ont. H.C.); Re Global Communications Ltd. and Attorney‑General of Canada (1983), 5 C.C.C. (3d) 346 (Ont. H.C.); Re Rahey and The Queen (1983), 9 C.C.C. (3d) 385 (N.S.S.C.) and (1984), 13 C.C.C. (3d) 297 (N.S.C.A.) This, however, would be subject to the exercise of restraint, a matter I shall address shortly.

 

62.              This position arises out of two general principles. First is the premise that one, having a right, must have a court in which to enforce that right and, in the absence of express legislation, that court is the superior court. This principle is well‑established in Canadian law and was authoritatively stated by Viscount Haldane in Board v. Board, [1919] A.C. 956, at pp. 962‑63:

 

If the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing it is prescribed, that alone is sufficient to give jurisdiction to the King's Courts of justice. In order to oust jurisdiction, it is necessary, in the absence of a special law excluding it altogether, to plead that jurisdiction exists in some other Court.

 

63.              The second principle recognizes the unique character of a constitutional remedy. In such cases a "special law" is not sufficient to oust the jurisdiction of the superior courts, for a constitutional remedy and its accessibility should not in principle be open to statutory limitation. While limitation of the remedial power to inferior courts may well be permissible, this, in my view, can only be possible if the superior court is available to fill the remedial vacuum that would result.

 

64.              While this gives the legislatures flexibility in creating and in circumscribing the jurisdiction of inferior courts without necessarily attracting review under the Charter , such review would surely be triggered were Parliament to attempt any limitation to the jurisdiction of the superior courts. I will now address the practical considerations.

 

65.              A compelling reason for such concurrent jurisdiction is to give to a person awaiting or during a preliminary inquiry, whose trial court is therefore not yet within reach, a court abled to grant remedy. I say "in certain cases" because, for many violations, where there is no prejudice in waiting, the course to be followed will be to let matters progress to the point where the trial court is within reach of the accused, i.e. after committal. The accused would then proceed by seeking early remedy from his trial court or wait for the actual trial. But for those violations the very nature of which commands immediate relief, access to the superior court is essential.

 

66.              As a matter of principle, I would not limit the superior court's jurisdiction to situations where applications are for a remedy unavailable in the extant court (that will be the case of preliminary inquiry courts); nor would I find that an unsuccessful application below would be a bar to the court's concurrent original jurisdiction. But I hasten to add with emphasis that this is so subject to the restraints hereinafter set out.

 

Preference for Trial Court Jurisdiction

 

67.              In recognizing both original and supervisory jurisdictions in superior courts with respect to s. 24(1)  applications I am seeking to give effect to the basic proposition that there should always be a court of competent jurisdiction to award such relief as is just and appropriate in the circumstances.

 

68.              At the same time, however, superior courts will rarely be the only competent court. As a general rule it is the trial court that is not only competent, but to be preferred in matters arising under the Charter. Viewed in this light, an unrestrained exercise of this jurisdiction by superior court judges is undesirable in that it could only give way to unnecessary delay or disruption of proceedings.

 

69.              For these reasons it is necessary that superior courts have a discretion to decline jurisdiction where there is a trial court and that court is competent to award just and appropriate relief. In this way it can be assured that the jurisdiction of superior courts will be invoked only where there is a need for such jurisdiction. The clearest, though not necessarily only, instances when there is a need for the exercise of such jurisdiction have already been suggested: when there is as yet no trial court within reach, and the timeliness of the remedy or the need to prevent a continuing violation of rights is shown; or when it is the process below which is, itself, alleged to be in violation of the Charter 's guarantees, e.g., an allegation of bias in the court below.

 

70.              Such a discretion is already well‑established with respect to prerogative relief: Harelkin v. University of Regina, [1979] 2 S.C.R. 561.

 

71.              It has also been applied with respect to writs within the context of Charter  litigation (Re Kendall and The Queen, supra).

 

72.              Such a discretion is also known to the common law with respect to original jurisdiction under the Charter  (see for example, R. v. S. B., supra; Re Krakowski and The Queen (1983), 4 C.C.C. (3d) 188 (Ont. C.A.); R. v. Kohler, supra; Re Pattyson and The Queen, supra).

 

73.              Indeed, while acknowledging this concurrent jurisdiction, I share the views expressed in the aforementioned cases that when there is a court available to grant the just and appropriate remedy, or, when the court below has been invited to adjudicate the matter and has done so, the superior court should generally refrain from interfering and should let matters take their course through the normal appeal process. As pointed out by Howland C.J. for the Ontario Court of Appeal in Re Krakowski and The Queen, supra, at p. 192:

 

                    In most instances it is preferable where the charges are to be tried in the provincial court that the provincial court decide whether the accused has been denied the right to a trial within a reasonable time as guaranteed by the Charter . The provincial court is in the position to hear viva voce evidence and is familiar with any problems so far as its case‑load is concerned. The Supreme Court, on the other hand, might be faced with the difficulty of trying to deal with the matter on the basis of conflicting affidavits. Furthermore, there would be resulting delay if cross‑examination of the deponents was required. It is much more satisfactory for the matter to be dealt with at a supervisory or appellate level on the basis of the entire record in the provincial court where all of the relevant issues have been considered in one forum, rather than having been litigated piecemeal.

 

                    The provincial court is therefore the court of competent jurisdiction within s. 24(1)  of the Charter  where the appellant should seek his remedy in this case.

 

I say this because, apart from the fact that the trial courts are usually the best equipped to deal with Charter  issues arising in extant cases before them, their decisions are eventually open to reconsideration through the ordinary appeal process. In determining the exercise of this restraint, I am of the view that we should somewhat extend and adapt to Charter  issues, (as suggested by Professor J. C. Levy, loc. cit., at p. 537) "A principled doctrine for declining to exercise jurisdiction", along the lines of forum non conveniens.

 

74.              In private international law, the doctrine of forum non conveniens is invoked to decline jurisdiction where there is another forum better able to deal with the matter. The doctrine is only relevant where the plaintiff is presented with a choice of forums in which to pursue his or her claims, and the choice made is one which places undue burdens upon the defendant. The doctrine is well‑established in Canadian common law: Antares Shipping Corp. v. The Ship "Capricorn", [1977] 2 S.C.R. 422. While some doubt has been expressed as to its availability in Quebec (see Southern Pacific Co. v. M. Botner & Sons Inc., [1973] R.P. 97 (C.A.); contra: Canadian Javelin Ltd. (Dans l'affaire de): Plam c. Sparling, [1979] C.S. 465), I think that a similar doctrine should be available throughout Canada upon an application under s. 24(1) .

 

75.              Indeed, the residual jurisdiction of superior courts ensures that they have such a discretion, and by virtue of s. 24(1) , they may and should decline jurisdiction where, in the opinion of the superior court, it is the trial court that is best able to assess and grant that remedy which is "just and appropriate". Such instances have already been indicated.

 

76.              The burden should, therefore, be upon a claimant under the Charter  to establish to the court's satisfaction that the case is an appropriate one for the superior court's immediate consideration. When there are proceedings pending or underway in the lower courts, and in the absence of any evidence as to why jurisdiction should be assumed under s. 24 , the superior court should generally decline to exercise its jurisdiction.

 

Section 24(1)  and the Prerogative Writs

 

77.              I do not share the view of some that all decisions as regards Charter  violations should be characterized as jurisdictional in order to provide access to the superior courts through review by way of the prerogative writs of certiorari, prohibition or mandamus (Manning, Morris, op. cit., at pp. 477‑78; Gold, Alan D., Annual Review of Criminal Law (1982), pp. 27‑28; contra: Levy, J. C., loc. cit., at p. 539; Ewaschuk, E. G., loc. cit., at pp. 70‑71). The superior court's concurrent original jurisdiction meets that need. We should not distort our prerogative writs, which have been developed in Canadian law and procedure over time, to become ipso facto instruments of review under the Charter . The use of such an expanded notion of jurisdictional error would unnecessarily alter the prerogative writ process beyond recognition.

 

78.              On the other hand, certain Charter  violations are the result of the manner in which a person is being processed through the criminal courts. Decisions as to whether such violations have or have not occurred, and decisions concerning the appropriate remedies, may also raise a bona fide jurisdictional issue. I find that such is always the case for a violation of an accused's rights under s. 11 (b). For reasons I will be expanding upon further on, I am of the view that a person charged has the right not to be tried beyond a reasonable time. Beyond that time no court has jurisdiction to try that person. This includes the right to see the proceedings come to an end, whatever be the stage at which they are. In such cases, is the accused, who is at the preliminary inquiry stage, who is entitled to immediate relief, who does not want to wait till after committal to go to the trial court, and who seeks relief through the prerogative writs confined to that route and its remedial limitations; conversely, is he who seeks relief under s. 24(1)  precluded from a right of appeal he would have enjoyed under the writs? Must the accused bring two applications? What about appeal?

 

79.              As a first observation it is clear that it is not because a jurisdictional error is also a Charter  violation that a person should be denied access to a traditional common law redress. This would offend s. 26  of the Charter :

 

                   26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

 

80.              An applicant should not lose the right to appeal a decision regarding a jurisdictional error because he or she chose to raise the matter through a s. 24(1)  application in order to have access to greater remedial powers.

 

81.              On the other hand, if a superior court on a writ application is seized of a jurisdictional issue which also constitutes a Charter  violation I see no purpose, in fact I find some difficulty and practical disadvantages, in dispersing the remedies, in requiring an applicant to bring two proceedings, and possibly two hearings of the same events.

 

82.              Rather, if the Charter  violation is one that would also go to jurisdiction under the common law, or is one that would vitiate the courts' jurisdiction to proceed, as I find a s. 11 (b) violation to be, a person should be able to seek and obtain full relief in the superior court through an application under s. 24(1)  and/or the prerogative writs.

 

83.              The availability of such a choice leads to difficulties, however, when allegations in issue in one proceeding brought under either a s. 24(1)  application or a writ proceeding give rise to a remedy under both the Charter  and the prerogative writs. Such is also the case when there are two proceedings. Must the applicant proceed to one courtroom to have the lower court decision quashed under the common law by the prerogative writ and then to another in order to obtain such additional remedy as may be just and appropriate under the Charter ? I think not. I stated at the outset that we should not let procedure stand in the way of a remedy. Therefore, regardless of whether the superior court is exercising its jurisdiction on a s. 24(1)  application or on a prerogative writ application, and whether it is in the same, or in distinct proceedings, when the allegations are of a violation that vitiates the court's jurisdiction, as is the case for a violation of s. 11 (b), it should act as if both routes had been taken and deal with both aspects at the same time. This simplified procedure will provide access to a full panoply of available remedies within the one hearing, thereby saving time and expense.

 

84.              Moreover, the discretionary nature of the superior court's jurisdiction in respect of both a s. 24(1)  application and that for a prerogative writ should not act as a bar to this simplified procedure. For the exercise of discretion in both applications is guided by similar policy considerations and can be generally expected to yield a similar result.

 

85.              This procedure does not, however, address the apparent additional difficulty occasioned by the differences in the availability of appeals.

 

86.              Before addressing that difficulty I should like to stress that what, in practice, will be the best way to accommodate this need for flexibility in order to ensure easy and satisfactory access to the superior courts for Charter  violations that are also jurisdictional must be finally devised and decided upon by local authority, in this case the superior courts of each province, not to mention the fact that Parliament and the legislatures will probably want to modify the existing system to meet the exigencies of the Charter . The superior courts of our country have always demonstrated the greatest of flexibility as regards procedure, acknowledging that it is there to guarantee rights and not to hinder them. Of course Charter  applicants cannot disregard local practice and rules that have been developed to ensure a fair hearing to all and the ordinate functioning of the court system.

 

Appeals

 

87.              As the constitutionality of the charging section in this appeal has not been challenged, the question whether an appeal might lie from an interlocutory decision where the constitutionality of a law has been put in issue need not and should not be decided here. As regards all other cases, I am of the view that, as a general rule, the Charter  does not confer a right of appeal, nor does it modify the rule that in criminal law there is no appeal from interlocutory findings. In this respect, I agree with the decision of the Court of Appeal for Ontario in R. v. Morgentaler, supra, in which it was said, at p. 271:

 

Section 24(1)  does not purport to create a right of appeal or bestow appellate powers on this or any other court. Rather it authorizes those courts which have statutory appellate jurisdiction independent of the Charter  to exercise the remedial power in s. 24(1)  in appropriate cases when disposing of appeals properly brought before the court.

 

88.              But decisions effectively terminating the proceedings are not, as such, really interlocutory. Such is the case, for example, of a stay of proceedings which has the effect of discontinuing or permanently suspending the proceedings.

 

89.              In R. v. Jewitt, [1985] 2 S.C.R. 128, Dickson C.J. concluded that a judicially entered stay of proceedings which effectively brings the proceedings to a final conclusion is tantamount to a judgment or verdict of acquittal and subject to appeal by the Crown pursuant to s. 605(1) (a) of the Criminal Code . He also noted, at p. 147, that:

 

                   A failure to acknowledge a right of appeal in circumstances where the order finally terminates the proceedings, in particular a stay, would seriously impede a rational and consistent development of Charter  remedies through the appeal and this, at a very critical time in their development. This is particularly true in the case of a stay of proceedings, which is being used increasingly as a Charter  remedy.

 

90.              I should mention however that an appeal lies from a decision to enter a stay only if there was jurisdiction in the court to that effect. Trial courts are so empowered, whilst judges sitting at a preliminary are not. For the latter, review is secured through mandamus. Indeed, mandamus is available to the Crown if a lower court ruling is not subject to appeal and has the effect of terminating the proceedings (Government of the Republic of Italy v. Piperno, [1982] 1 S.C.R. 320; Bolduc v. Attorney General of Quebec, [1982] 1 S.C.R. 573; Rourke v. The Queen, [1978] 1 S.C.R. 1021, aff'g (1975), 25 C.C.C. (2d) 555 (B.C.C.A.); Re Regina and Beason (1983), 7 C.C.C. (3d) 20 (Ont. C.A.))

 

91.              Hence, as a general rule, there is no appeal from an interlocutory decision on a Charter  issue except where the decision has the effect of terminating the extant proceedings.

 

92.              While stays, and their appeals are not a problem, the real difficulty, to which I have already alluded, is in those cases where the allegations in issue before the superior court give rise to a remedy under both the Charter  and the prerogative writs. For, there will be only a limited right of appeal on interlocutory Charter decisions, but a full right of appeal under the prerogative writs. Indeed, while the findings of the jurisdictional error and of a Charter  violation arise out of the same facts, and, as such, when disregarding the vehicle chosen are open to appeal, at the remedial end of things only those remedies that would flow from a writ could be said to be open to appeal. Such a result, a truncated review of the remedy, is undesirable.

 

93.              It could, for example, lead to a situation in which two contradictory decisions would be left standing. That portion of the superior court's disposition of the whole matter quashing the lower court decision on the basis of the prerogative writ power could be overturned by the court of appeal. Yet the other portion granting an affirmative remedy on the basis of s. 24(1)  would be left standing. Hence the parties could be placed in the impossible position of having to comply with two valid, but contradictory, decisions.

 

94.              The difficulty is compounded by the fact that, at the moment of decision, remedies under s. 24(1)  and the prerogative writs become inextricably fused. The remedy for jurisdictional error is often to quash the lower court decision. At the same time, in cases where the violation is the result of a decision below, or where the court below has been called upon to make a determination as regards that type of violation, any remedy under s. 24(1)  would then, as a necessary first step, quash the lower court judgment. Thus, the quashing of the lower court judgment is at once the remedy for jurisdictional error and an indissociable part of the Charter  remedy. Any attempt, for appeal purposes, to isolate the one remedy from the other therefore becomes an artificial exercise, given that the quashing of the lower court judgment is common to both. How then, can one salvage desirable accessibility to Charter  remedies and procedural flexibility and reconcile this fusion of the two remedies with the differences in the appeal process?

 

95.              Common sense and policy suggest that, in such circumstances, the appeal process must be harmonized. This can be achieved in one of three ways. We could put an end to the appeal under the prerogative writs when they become inextricably bound up in the Charter  remedy. To do so, however, would run counter to the principle enunciated in s. 26  of the Charter . To eliminate or restrict an existing right of appeal such as that found in s. 719(1)  of the Criminal Code , (the text of which is, in any event, clear and unequivocal as to a general and unrestricted right of appeal) for the simple expedient of harmonizing a common law remedy with s. 24(1)  of the Charter  is, as far as I am concerned, out of question. Furthermore, preserving an appeal of a decision regarding the integrity of the court's process is, for policy reasons, highly desirable.

 

96.              We could restrict a person and put him or her to his or her choice between the common law remedy through writs and the Charter  remedy. I have already discarded that approach. I cannot imagine a person's ancient and historical access to the Queen's courts through writs being restricted as a result of the coming into force of the Charter . If anything, access should be enhanced not restricted, let alone denied.

 

97.              Though this approach would address the legitimate concern of some that the review of certain interlocutory decisions under the Charter  through a jurisdictional challenge would open the "floodgates" of litigation and invite abuse, such risks were present absent the Charter . Challenges of interlocutory findings have always been available by the mere allegation of jurisdictional error. I do not know of any significant abuse in this area in the past on the part of the Bar. Were such a right of review and appeal abused with the introduction of the Charter , which I do not expect, other mechanisms of control are available which do not seriously erode common law rights.

 

98.              Although conscious of the fact that it is not without some difficulty, I find nevertheless that the only acceptable alternative is to acknowledge a wider scope of remedies reviewable on appeal of a jurisdictional finding. In those cases which give rise to both a common law remedy for jurisdictional error or for a violation affecting the extant court's jurisdiction and to a Charter  remedy, which I find is always the case with respect to a determination under s. 11 (b), all remedies may be considered, whatever the vehicle chosen. Given built‑in constraints, this, in my view, is the preferable solution. It recognizes the fusion of the two remedies, it seeks to harmonize the appeal process without infringing common law rights and does not introduce delays additional to those already present in the criminal justice process.

 

Summary

 

99.              To summarize, given the length and the complexity of this first portion of the opinion I would state the following:

 

‑‑A court of competent jurisdiction is a court that has jurisdiction over the person and the subject matter, as well as jurisdiction to order, under the criminal or penal law, the remedy sought pursuant to the Charter ;

 

                   ‑‑As a general rule, when there is an extant case, the court of competent jurisdiction is the trial court, and that court enjoys the full panoply of criminal law remedial powers;

 

‑‑Magistrates sitting at preliminary hearings are not courts of competent jurisdiction for the purpose of granting remedy under s. 24(1) ;

 

‑‑Magistrates sitting at preliminary inquiries are courts of competent jurisdiction to determine under s. 24(1)  whether a violation has occurred for the purpose of excluding evidence under s. 24(2) ;

 

‑‑As soon as the trial court is determined, in cases where no preliminary inquiry is to be held, or if so, as soon as possible after committal, an accused alleging that a s. 11 (b) violation has occurred  must be afforded a hearing under s. 24(1)  before a judge of the court where his trial is to be held;

 

‑‑Irrespective of whether or not an application has been made to the extant inferior court, the superior court has a concurrent original jurisdiction; but the superior court has a discretion to decline the exercise of that jurisdiction and will usually leave to the normal trial process and its appeal system the dispensation of Charter  remedies;

 

‑‑Some violations of Charter  rights affect the jurisdiction of an extant court;

 

‑‑A violation under s. 11 (b) is jurisdictional, and a finding as regards that violation is jurisdictional in nature;

 

‑‑When, in an inferior court, there arises both jurisdictional and Charter  issues, as is the case as regards violations to s. 11 (b), a  person may seek relief in the superior court under either s. 24(1)  or the prerogative writs, or both;

 

‑‑An application to a superior court alleging a jurisdictional violation, is for remedial purposes, to be considered an application under s. 24(1) , and, for appeal purposes under s. 719  of the Criminal Code , to be considered an application for the issuance of a writ, and, upon such appeal all remedies are open to review;

 

‑‑This is an exception to the general rule that there is no appeal from an interlocutory decision in criminal matters except where the decision has the effect of terminating the proceedings, such as, for example, the  entering of a stay of proceedings.

 

Application of Principles

 

100.            This is the first time this Court is invited to address s. 24(1)  in more than an incidental way. The jurisdiction of courts in our criminal justice system and the mechanisms of review and of appeal are far from simple, as is well illustrated by the analysis of the procedures and judgments at the beginning of this opinion.

 

101.            They are largely the product of history and of attempts to meet the exigencies of more recent times.

 

102.            Any attempt to insert within the system a new recourse, such as that contemplated by s. 24(1)  of the Charter , cannot be simple and the result can, at best, be no simpler than without the Charter .

 

103.            Therefore in applying the suggested rules to the facts of this case, I have gone beyond what is strictly necessary to dispose of this appeal, in order to illustrate and thereby, hopefully, facilitate an understanding of them in a concrete setting.

 

104.            Judge Baker, when holding the preliminary inquiry, was not a court of competent jurisdiction to grant remedy under s. 24(1) . Therefore, the accused should not have addressed his request for remedy to Judge Baker. That remedy was available to the accused in one of two ways. The accused could have waited for committal, and, if committed and as of then, could have asked to be given access to a judge of the court where his trial was to be held and made a pre‑trial motion seeking a stay of proceedings. It would be open to the judge to hear the motion or, depending upon the circumstances, defer the matter to when the trial will actually be held. (If he heard the pre‑trial motion and entered a stay the Crown could have appealed to the Court of Appeal of Ontario. The same applies if the stay is entered at the actual trial). If having gone there, applicant accused was unsuccessful, he could go to the Supreme Court and seek relief (unless, perhaps, his trial court was in the Supreme Court). This would however be a case where that court would be called upon to weigh the urgency of the matter and the prejudice to the accused against interfering with a trial court's decision, especially in the light of the availability of an appeal at the end of the trial. Much would then depend upon whether there is any urgency or whether the trial court process is itself perpetuating the violation by precluding the accused from having his trial and access to the appeal court.

 

105.            The other route open to the accused in this case was the one he actually followed, if one sets aside his first move before Judge Baker. He did not need and should not be expected to wait for committal in order to go to his trial court. He could, as he did, make an application under s. 24(1)  to the Supreme Court seeking his remedy and that is the better route when a violation of s. 11 (b) rights is complete at any stage prior to committal. With respect, Osborne J. was wrong in deciding to the contrary. He could also seek relief through prerogative writ in separate or in the same proceedings, as he chose to do, because the violation he alleged, being of his rights under s. 11 (b), went to jurisdiction; and he could on the writ, ask for a complete remedy under the Charter . He need not have brought two applications. Either one enabled Osborne J. to deal fully with both aspects of the violation.

 

106.            It was open to Osborne J. to decline to grant relief and let matters make their way to within reach of the trial court to be dealt with there. But, given the nature of the violation (jurisdictional), and time being of the essence when considering a remedy, Osborne J. was, in my respectful view, right in exercising his discretion by choosing to decide the matter.

 

107.            Dependent upon local practice, a matter this Court should refrain from interfering with, Osborne J. could have, if his being in motions court was a practical impediment to his addressing the Charter  issue, qua Charter application, sent the matter to the more appropriate division of his court. In any event he did approach the procedural aspect of the situation with the usual flexibility one finds in our superior courts, and addressed both issues under the writ applications.

 

108.            Since the violation alleged was of the accused's s. 11 (b) rights, and the decision as regards that violation was therefore jurisdictional, it was open to appeal under s. 719  on either the s. 24(1)  application or the writ. In passing, and again to illustrate, had there not been writ proceedings alleging loss of jurisdiction for abuse of process, Osborne J.'s decision on the Charter  would still have been subject to appeal, for the Charter  application being in relation to an alleged s. 11 (b) violation, Osborne J.'s decision was, for appeal purposes, tantamount to one regarding an application for a writ.

 

109.            The Court of Appeal's judgment was as follows:

 

                   We are not persuaded that Osborne J. erred in the conclusion that, in the circumstances of this case, the appellant's constitutional right to be tried within a reasonable time has not been violated and that the delay for which the Crown is responsible did not give rise to relief under the doctrine of abuse of process. The learned motions court judge was of the opinion that the justice presiding at the preliminary Inquiry pursuant to Part XV of the Criminal Code  is a court of competent jurisdiction to consider an alleged violation of s. 11 (b) of the Canadian Charter of Rights and Freedoms . We prefer not to express an opinion, in this case, on this question of jurisdiction. For these reasons, the appeal is dismissed.

 

110.            What is now before us, given that abuse of process as a ground was abandoned in this Court, is whether Osborne J. erred in his decision finding no violation of the accused's Charter  rights under s. 11 (b).

 

The Facts Relevant to the Jurisdictional Issue and to the Alleged Violation of s. 11 (b)

 

111.            In 1973, Mills was sentenced to eight years in the penitentiary for his involvement in a robbery. On March 8, 1976, Mills escaped custody and a warrant was issued for his arrest. About one year later, while Mills was still unlawfully at large, another warrant for his arrest was issued for an armed robbery in Sarnia. The following month, on March 21, 1977, Mills was arrested in London, Ontario. The next day, March 22, he appeared in Court on the Sarnia hold‑up charge under the name of John Blake. Since his true identity was not known at that time, the outstanding warrant for his escape was not executed and, instead of being sent back to the penitentiary he was granted judicial interim release on the Sarnia charge.

 

112.            On March 30, 1977, an information was sworn and a warrant issued against Mills alleging a hold‑up in London on March 24. That is the information we are concerned with in this appeal.

 

113.            Mills jumped bail on the Sarnia charge and it is only on or about October 18, 1979, that he was arrested in Nova Scotia by the Amherst Police. They notified the London Police, who in turn notified the Sarnia Police. The police forces agreed that the Sarnia charge would be dealt with first, then the London charge. He was therefore sent to Sarnia on or about October 18, 1979. On December 28, 1979, Mills' attorney advised the London Police that Mills was in Sarnia on a charge and that he would "like to clear up the London matter". A few days later, on January 4, 1980, Inspector Robinson acknowledged receipt of the letter and said that he would be ready when the Sarnia matter was terminated. There is at this point some confusion as regards what in fact happened with respect to the Sarnia charge.

 

114.            According to the Crown, on February 28 and 29, 1980, a preliminary was held in Sarnia dealing with three charges, the Sarnia hold‑up, a charge for being unlawfully at large and one for acknowledging an instrument in the name of another (s. 363  of the Criminal Code ). Mills was committed for trial on the robbery, pleaded guilty to being unlawfully at large and sentenced to four months to be served consecutively to his penitentiary term, and discharged of the s. 363  charge. Always according to the Crown, on April 2, 1980, an indictment was presented in the General Sessions of the Peace. The case was adjourned to the fall sittings, apparently on consent. Defence counsel was not present. Sometime between April and December defence counsel was advised by the Sarnia Police that they could not prove the case against Mills. On December 8, 1980 appellant elected for trial by judge alone and on that same day, the Crown being unable to lead evidence, he was acquitted of the Sarnia hold‑up.

 

115.            On the other hand, according to Mills, the Sarnia robbery charge was withdrawn on February 28, 1980.

 

116.            After the disposition of the Sarnia charge, Mills was sent back to the penitentiary to serve the balance of his 1973 sentence, instead of going to London to face the outstanding charge. There is confusion however as to the precise date of the disposition. On September 16, 1981, the penitentiary authorities, in contemplation of his upcoming release scheduled for October 26, 1981, contacted the London Police. They took charge of the prisoner on September 24 and he appeared in London the next day, the 25th. There was an adjournment to September 29, then to October 1 for a show cause hearing, as a result of which he was granted bail. Matters were then adjourned to October 30 and then to February 10, 1982, for a preliminary inquiry. On the first of February, at the request of the accused, it was brought forward to be adjourned to May 18. In April, the Charter  came into force and on May 18, Mills made a motion to stay the proceedings under s. 24(1)  for a violation of his rights under s. 11 (b).

 

117.            I fear that whoever reads this narrative will have to draw a chart, as I did for myself, in order to get an overview of the situation. To clear up matters, hopefully to some degree, I should refer to the position taken by appellant and respondent as regards the events and their qualification.

 

118.            Appellant does not, quite understandably, rely on any delay occurring prior to his arrest in October 1979. As of then however, he does complain that some thirty‑one months elapsed until the commencement of the preliminary inquiry (May 18, 1982), and that, within those thirty‑one months, nineteen months elapsed between the end of the proceedings in the Sarnia hold‑up and the appellant's first appearance on the London charge.

 

119.            Respondent‑Crown qualifies the thirty‑one months as follows:

 

1.                The delay from October 1979 (the arrest) to April 1980 (6 months) is "neutral" and was required to dispose of the Sarnia charges;

 

2.                The nine months that elapsed thereafter are the result of the mutual conduct of the parties in letting the Sarnia charges lie till December 1980;

 

3.                The Crown acknowledges that the subsequent ten months (December 1980 to September 1981) are "attributable to the negligent but nonintentional conduct of the Crown";

 

4.                The period of time from the first appearance to February 1982 is attributable to neutral reasons;

 

5.                Three months are attributable to the specific request of the appellant's lawyer (February 1982 to May 1982).

 

The record in this case is most unsatisfactory and is, to say the least, confusing. The facts given to this Court are not, to some degree, those given below; and even the extent of the divergence is uncertain. The appellant says that the Sarnia hold‑up charge terminated on February 28, 1980. The respondent says that some time between April and December 1980, the police advised the defence that they could not prove that charge against Mills and that the charge would be withdrawn; and that, in fact, the accused was indicted and acquitted on December 8, 1980. I will address this disagreement shortly.

 

The Judgments

 

120.            As appellant does not rely in this Court on his allegations in the courts below of "abuse of process", I will not refer to the disposition of that ground in those courts.

 

Provincial Court

 

121.            Judge Baker dismissed the application relying on what Eberle J. of the Ontario Supreme Court, had said in Potma and The Queen, supra. In essence, Eberle J.'s conclusions, at least those upon which Judge Baker appears to have rested his disposition of the motions, are found at p. 27 and are as follows:

 

...I conclude that s. 24  can only be applied to rights which are guaranteed by the Charter ; and that means only on and after the Charter  became law.

 

Judge Baker, immediately after this quote, interjected the following comment: "Which as I have indicated of course was April 17, 1982". Judge Baker then further quotes a portion of Eberle J.'s reasons, the conclusion of which was that "s. 24  must be considered to have a prospective effect".

 

122.            Judge Baker then disposed of the motion in the following terms (1982), 2 C.R.R. 300 at p. 311:

 

It is my view, and my opinion, that substantive legislative changes in the law and [sic] are not merely procedural differences and as a result are presumed not to be retrospective unless expressly so stated, and there is nothing in the Charter  to so state.

 

                   I am therefore, for the reasons given denying both preliminary motions to stay the proceedings on this charge.

 

It is clear that Judge Baker's decision was grounded upon his finding that s. 24  had a prospective effect. It is uncertain whether Judge Baker was of the view that, as a result, a remedy under s. 24(1)  was available only to persons charged in proceedings instituted after the proclamation of the Charter ; or whether a prospective interpretation had the effect of limiting the time span relevant to the determination of "reasonableness" to time elapsed after the coming into force of the Charter , in this case from April 17 to May 18, 1982.

 

Supreme Court of Ontario

 

123.            It would appear that, while the Crown in this Court acknowledges responsibility for ten months of delay, it had conceded before Osborne J. responsibility "for 19 months of the delay between the time that the warrant was issued on March 24th, 1977, and the date upon which the applicant was brought back to London to stand trial [sic]" (Osborne J.'s judgment in (1983), 2 C.C.C. (3d) 444 at pp. 448‑49). It is on that concession that Osborne J. proceeded and I see no reason why we should, especially given the poor state of the record, assess matters on a different basis. In any event, for reasons hereinafter explained, I am of the view that at least as of the moment that the police knew they had no case, they were duty‑bound to dispose of that pending charge with the greatest of expedition.

 

124.            Osborne J. also found, as a matter of fact, that the rest of the delay was the applicant's fault (at p. 449):

 

                   There is no doubt that the 19 months' delay complained of cannot be said to be the fault of the applicant. The other period of delay can equally be said to be the applicant's fault. In that other time‑period the applicant appears to have been less than enthusiastic about making his presence known to the authorities.

 

Regardless of what has been argued in the parties' factums, those are the facts upon which this Court must determine the issues of law, as undoubtedly did the Court of Appeal of Ontario given the wording of its judgment (supra).

 

125.            Osborne J. then characterized the provisions of s. 11 (b) as creating a new right, not merely a "repetition of any common law right to trial within a reasonable time" (p. 456). He said that it was a substantive right, not procedural.

 

126.            On pre‑Charter delay he said, at p. 457:

 

An accused before a court after April 17, 1982, may claim the benefit of the trial within a reasonable time provision of the Charter . Any pre‑Charter delay is relevant only to the extent that it is to be assessed with post‑Charter delay, and weighed in the light of that post‑Charter delay on the general issue of whether the accused has been denied his right to trial within a reasonable time. Put another way, I do not think that a pre‑Charter delay standing alone, is sufficient to trigger the application of s. 11 (b) of the Charter  in favour of the accused. The accused's s. 11 (b) right does not impose a retrospective obligation on the authorities. A pre‑Charter delay, however, must be considered as a very significant factor in the over‑all determination of trial within a reasonable time, having in mind the delay which has occurred following the coming into force of the Charter . The accused's status as a beneficiary of the Charter  right to trial within a reasonable time is established by his appearance before the court after April 17, 1982. The substantive right to trial within a reasonable time is to be assessed in the total circumstances with particular emphasis on the post‑Charter delay, the reasonableness of which varies depending upon the length of that delay and the length of the pre‑Charter  period of delay. The longer the pre‑Charter delay, the more quickly the accused should be brought to trial after the Charter  came into force.

 

127.            Regarding factors to be taken into account when assessing the reasonableness of the time, he said that the length of the period of delay was "just one of a number of factors to be taken into account" and included, amongst others, are, "the reason for the delay, the accused's assertion of a right to a speedy trial and prejudice to the accused occasioned by the delay" (p. 457).

 

128.            His finding of no violation took into account, to use his terms at p. 457, "the circumstances of this case, having in mind the cumulative effect of the delay before and after the Charter ".

 

Court of Appeal

 

129.            As regards the Charter  application, I have already reproduced their judgment in full. They simply said that they found no error in Judge Baker's conclusion, given the circumstances of the case.

 

130.            Before considering s. 11 (b), two matters can be disposed of succinctly: this Court's jurisdiction as regards the nature of the finding below and the applicability of s. 24(1)  to a pre‑Charter  charge.

 

This Court's Jurisdiction

 

131.            Understandably, Mr. Doherty, Q.C., acting for the respondent Crown in this Court, has not challenged this Court's right to entertain this appeal on the ground that a determination under s. 11 (b) is a finding of fact. Indeed, in R. v. Heaslip (1983), 36 C.R. (3d) 309, a case before the Court of Appeal for Ontario, in representing the Crown‑appellant, he took the position, and was successful when the Crown's right to appeal was challenged, that such a determination was one of law. As the matter is jurisdictional, I think it preferable that a finding in that sense be nevertheless made by this Court, relying upon, amongst others, the decision of this Court in Belyea v. The King, [1932] S.C.R. 279. To this finding I think it advisable that it be added thereto, with approval, the qualifications of Martin J.A., speaking for the Court of Appeal of Ontario in R. v. Heaslip, supra, where he said, at pp. 318‑19:

 

                    The conclusion whether there has been an infringement of an accused's right to be tried within a reasonable time may of course in some cases depend on the trial judge's view with respect to the credibility of witnesses and his findings of fact as to what occurred, where the facts are in dispute. An appellate court is not entitled on an appeal by the Crown against the decision of a trial court holding that there has been a contravention of s. 11 (b) of the Charter  to set aside his findings of fact based on his views as to credibility, or to set aside his findings of fact where the facts are in dispute, provided there is evidence to support those findings. However, in my view, it is a question of law whether the trial judge has drawn the correct conclusion, from the facts admitted or found by him, that there has been a breach of s. 11 (b) of the Charter . The facts in this case are not substantially in dispute.

 

132.            As it is not in dispute that a determination under s. 11 (b) raises a question of law, no more need be said with regard to this Court's jurisdiction to hear this matter.

 

Section 24  and Pre‑Charter Charge

 

133.            Does s. 24(1) of the Charter  apply to proceedings instituted prior to the Charter ?

 

134.            In R. v. Antoine (1983), 5 C.C.C. (3d) 97 Martin J.A., for the Court, addressed that precise question. In that case, the position taken by the Crown was that, while taking into account pre‑Charter delay was not giving retrospective effect to s. 11 (b), to grant a remedy for a delay flowing from a pre‑Charter  charge was giving retrospective effect to s. 24(1)  of the Charter . Martin J.A.'s comments are as follows, at p. 104:

 

                    Patently, s. 24 can be invoked only where a right guaranteed by the Charter  is alleged to have been infringed, and I accept, of course, that there cannot be a breach of a new right conferred by the Charter  prior to the creation of the right. For example, s. 10 (b) of the Charter  provides that everyone has the right on arrest `to retain and instruct counsel without delay and to be informed of that right'. The words which I have italicized confer a new right. That right could not be contravened prior to the coming into force of the Charter  because the right did not exist: see R. v. Lee (1982), 142 D.L.R. (3d) 574, 1 C.C.C. (3d) 327, 30 C.R. (3d) 395 (Sask. C.A.). Where, however, there has been a breach of a right secured by the Charter  it would be illogical to hold that the remedy provided by s. 24  for Charter  contraventions does not apply merely because the proceeding in which the Charter  right was contravened was initiated prior to the coming into force of the Charter , where the contravention occurred after the Charter  came into effect. Mr. Rosenberg argued that it would be anomalous where there has been a contravention of a Charter  right, if a defendant who had been charged one day after the Charter  came into force could invoke the remedy provided by s. 24 , but a defendant whose Charter  right had been similarly infringed could not invoke the provisions of s. 24  because the proceedings against him were instituted one day before the Charter  came into effect. I agree. The provisions of the Charter  must be read together and when they are so read it is, in my view, clear that the remedy provided by s. 24  is intended to be applicable to contraventions of rights secured by the Charter  which take place in a proceeding being carried on after the Charter  even though that proceeding was instituted before the Charter . I do not think that such an interpretation of the Charter  does violence to any constitutional principle, or, indeed, any principle of statutory interpretation.

 

135.            I fully agree with Martin J.A.

 

Section 11 (b)

 

1. Introduction

 

As I have already noted, s. 11 (b) states:

 


11.  Any person charged with an offence has the right


11.  Tout inculpé a le droit:


 


. . .


. . .


 


(b) to be tried within a reasonable time;


b) d’être jugé dans un délai raisonnable;


 

 

136.            As of April 17, 1982, all persons charged with an offence who had not yet been tried were entitled to invoke their newly‑acquired constitutional right to be tried within a reasonable time. As of that moment, they were enabled to call into question the reasonableness of the time elapsed in bringing them to trial. The first issue of importance for such persons is whether or not the time which had elapsed prior to the coming into force of the Charter  may properly be taken into consideration in assessing the reasonableness of delay. If pre‑Charter delay is to be considered, a second issue is whether such delay should receive the same weight as delay subsequent to the coming into force of the Charter . These issues are of particular importance in the present case since the major portion of the alleged delay occurred prior to the coming into force of the Charter .

 

137.            I am of the view, however, that it would be premature for me to address the issue of pre‑Charter delay without first elucidating the nature and scope of the right found in s. 11 (b). The relevance and importance, if any, of pre‑Charter delay can only be properly understood in the light of the nature, objectives and criteria for the application of s. 11 (b) generally. For this reason, I shall first deal with some of the general principles concerning s. 11 (b) before addressing the specific issue of pre‑Charter delay.

 

2. Nature and Purpose of s. 11 (b)

 

138.            It has already been established by this Court that the proper interpretive approach for the definition of Charter  rights is a purposive one: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., supra, where Dickson J. (as he then was) wrote at p. 344:

 

                   This Court has already, in some measure, set out the basic approach to be taken in interpreting the Charter . In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter  was a purposive one. The meaning of a right or freedom guaranteed by the Charter  was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.

 

139.            Section 11 (b) enunciates an individual right to be tried within a reasonable time for all persons charged with an offence. I wish to emphasize at the outset that this right is, in its nature, an individual right and has no collective rights dimension. While society may well have an interest in the prompt and effective prosecution of criminal cases, that interest finds no expression in s. 11 (b), though evidently, incidental satisfaction. The section is primarily concerned with ensuring respect for the interests of the individual. Effective enforcement of this Charter  right, which may from time to time see the guilty go free, will nevertheless also benefit society as a whole. It will ensure, in addition to respect for individual rights, the prompt prosecution and determination of criminal cases, a result which will be welcomed by the innocent and regarded with aversion by many of the guilty. But the societal benefit resulting from the prompt prosecution of criminal cases, though of great importance, is a by‑product of the section; it is not its object.

 

140.            In my view, the fundamental purpose of s. 11 (b) is to secure, within a specific framework, the more extensive right to liberty and security of the person of which no one may be deprived except in accordance with the principles of fundamental justice. The purpose of s. 11 (b) can, in other words, be ascertained by reference to s. 7  of the Charter . Section 11 (b) is designed to protect, in a specific manner and setting, the rights set forth in s. 7 , though, of course, the scope of s. 7  extends beyond those manifestations of the rights to liberty and security of the person which are found in s. 11 . Hence, the focus for the analysis and proper understanding of s. 11 (b) must be the individual, his or her interests and the limitation or infringement of those interests.

 

141.            Historically, the concept of trial within a reasonable time has been closely associated with the remedy of habeas corpus and bail and has thus focused on the liberty interest of the accused, specifically, on preventing unduly lengthy detention prior to trial. Dicey wrote of the Habeas Corpus Act, 1679 (Engl.), 31 Cha. II, c. 2:

 

A person is imprisoned on a charge of crime. If he is imprisoned without any legal warrant for his imprisonment, he has a right to be set at liberty. If, on the other hand, he is imprisoned under a legal warrant, the object of his detention is to ensure his being brought to trial.... In the case of the lighter offences ... he has, generally speaking, the right to his liberty on giving security with proper sureties that he will in due course surrender himself to custody and appear.... In the case ... of the more serious offences ... a person who is once committed to prison is not entitled to be let out on bail. The right of the prisoner is in this case simply the right to a speedy trial.

 

                                                                    ...

 

                   The net result, therefore, appears to be that while the Habeas Corpus Act is in force no person committed to prison on a charge of crime can be kept long in confinement, for he has the legal means of insisting upon either being let out upon bail or else of being brought to a speedy trial.

 

(The Law of the Constitution (10th ed. 1959), at pp. 217‑19).

 

142.            In the United States, legislative guarantees of a "speedy trial", modelled on the Habeas Corpus Act of 1679, have, it appears, often been construed by the courts as directed solely against protracted pre‑trial confinement (Anthony Amsterdam, "Speedy Criminal Trial: Rights and Remedies," 27 Stan. L. Rev. 525 (1975), at p. 533).

 

143.            The same emphasis on pre‑trial detention and the liberty interest of the accused is found in certain treaty provisions of international human rights law. Article 9(3) of the International Covenant on Civil and Political Rights, supra, to which Canada is a State Party, provides:

 

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.

 

144.            Similarly, Article 5(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (November 4, 1950), states:

 

3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer author‑ ised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

 

145.            Additionally, under s. 11 (b), the security of the person is to be safeguarded as jealously as the liberty of the individual. In this context, the concept of security of the person is not restricted to physical integrity; rather, it encompasses protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation" (A. Amsterdam, loc. cit., at p. 533). These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction. These forms of prejudice cannot be disregarded nor minimized when assessing the reasonableness of delay.

 

146.            The need for protecting the security interest of the individual accused arises from the nature of the criminal justice system and of our society. We have long recognized the need for an open and public criminal system as a vital means of ensuring respect for the integrity of the process. We also acknowledge the necessity of a free and unrestricted press. As a practical matter, however, the impact of a public process on the accused may well be to jeopardize or impair the benefits of the presumption of innocence. While the presumption will continue to operate in the context of the process itself, it has little force in the broader social context. Indeed many pay no more than lip service to the presumption of innocence. Doubt will have been sown as to the accused's integrity and conduct in the eyes of family, friends and colleagues. The repercussions and disruption will vary in intensity from case to case, but they inevitably arise and are part of the harsh reality of the criminal justice process.

 

147.            Additionally, the process is adversarial and conflictual; the stress and anxiety resulting from a criminal charge is heightened by the very nature of the process.

 

148.            Although, to some extent, these negative consequences are unavoidable, one of the purposes of s. 11 (b) is to limit the impact of such forms of prejudice to the accused by circumscribing the time period within which they may occur. In other words, while some such prejudice to the accused may be seen as a cost of the very right to a hearing, a fortiori a public one, it must nevertheless be kept to a minimum by a speedy determination of criminal responsibility. Hence, in my view, such forms of prejudice leading to impairment of the security of the person may, in and of themselves, constitute a violation of s. 11 (b) if allowed to foster over‑long.

 

149.            To those aspects of the liberty and security interests the American courts have added a third, the right to a full and fair defence in a criminal trial, long recognized in Anglo‑American case‑law. In the case of Barker v. Wingo, 407 U.S. 514 (1972) at p. 532, Powell J., on behalf of the United States Supreme Court, identified the three interests which the speedy trial right was designed to protect:

 

(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.

 

150.            The defendant will be prejudiced, it is suggested, by delays which lead to the loss of defence evidence, the death or disappearance of key defence witnesses or other forms of impairment of the defence: Dickey v. Florida, 398 U.S. 30 (1970) at p. 42; United States v. Ewell, 383 U.S. 116 (1966) at p. 120.

 

151.            Such prejudice, however, which impairs the ability of the accused to mount a full and fair defence goes to the fairness of the trial; it is more properly related to the right to a fair trial than to the right to be tried within a reasonable time. Under our Charter , the two rights are conceptually distinct and are protected by different sections. Section 11 (b) is designed to ensure that the trial occurs with minimal delay whereas ss. 7  and 11 (d), among others, ensure that the trial itself is fair. The following comments, although on a separate issue, nonetheless well illustrate the distinction:

 

... s. 11 (b) ensures only that a rapid judicial determination of formal charges will be achieved, whereas ss. 7  and 11 (d) provide the overriding guarantee that the integrity of the entire process will always be a matter of prime concern for the court.

 

("Re Canadian Charter of Rights and Freedoms, S. 11(b): The Relevance of Pre‑Charge Delay in Assessing the Right to Trial Within a Reasonable Time", per Graham Garton of the Federal Department of Justice (1984), 46 Nfld. and P.E.I.R. 177 at p. 180).

 

152.            The distinction between the two rights is fundamental. The "fair hearing" and "fundamental justice" provisions of ss. 11 (d) and 7  require that a wider and, to some extent, different range of factors be considered in the analysis of the delay: the conduct of the Crown may be properly considered, timely assertion by the accused of his right and disclosure of the nature of the impairment thereto may be required, remedial relief will be more varied and the length of time elapsed will generally be a less critical factor than under s. 11 (b), and is to be considered in a different light, given the difference of purpose for so doing. Indeed, a trial might well be considered unfair because matters were brought to trial too fast.

 

153.            The American approach, which has appealed to many Canadian courts, identifies the interest in a fair and full defence as part of the rationale for the speedy trial right. This approach appears to be predicated upon the particular wording and structural features of the American Constitution, which differ considerably from the Charter . White J. wrote in Duncan v. Louisiana, 391 U.S. 145 (1968) at pp. 148‑49:

 

                   The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,’ Powell v. Alabama, 287 U.S. 45, 67 (1932), quoting from Hebert v. Louisiana, 272 U.S. 312, 316 (1926); whether it is ‘basic in our system of jurisprudence,’ In Re Oliver, 333 U.S. 257, 273 (1948); and whether it is ‘a fundamental right, essential to a fair trial,’ Gideon v. Wainwright, 372 U.S. 335, 343‑344 (1963); Malloy v. Hogan, 378 U.S. 1, 6 (1964); Pointer v. Texas, 380 U.S. 400, 403 (1965).

 

 (Emphasis added.)

 

154.            In Klopfer v. North Carolina, 386 U.S. 213 (1967), the Supreme Court held that the Sixth Amendment right to a speedy trial extended to the States by reason of the Fourteenth Amendment due process clause. In so doing, however, the Court further blurred concepts which, under the Canadian Charter  are quite distinct. The result in the United States is a combination of the liberty, security and defence interests under the mantle of the speedy trial guarantee. It is this very combination which has led to many of the difficulties faced by the American courts in elaborating the right and which is at the root of a number of the criticisms which have been directed against the landmark decision of Barker v. Wingo, supra. (See for example, H. R. Uviller, "Barker v. Wingo: Speedy Trial Gets a Fast Shuffle," 72 Colum. L. Rev. 1376 (1972); A. Amsterdam, loc. cit.)

 

The Test of Reasonableness

 

155.            Reasonableness is an elusive concept which cannot be juridically defined with precision and certainty. Under s. 11(b), however, as we are dealing with reasonableness as regards the passage of time, we have the advantage of being able to refer to precise stages of proceedings and events.

 

156.            This is not to say that reasonableness can be predetermined with precision. That would be "falling victim to the tyranny of numbers". But the advantage to be found when dealing with time is that reasonableness can be determined with the help of the precision surrounding the happening of certain events, e.g. arraignment, the preliminary inquiry, the trial, and the time elapsed between.

 

157.            In the case of Barker v. Wingo, supra, the Supreme Court of the United States developed a balancing test and identified four factors which had to be considered in determining whether or not an accused's right to a speedy trial under the Sixth Amendment to the Constitution of the United States had been violated. The Court wrote at p. 530:

 

The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.

 

                                                                    ...

 

                   A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

 

158.            In Canada, there has developed in the lower courts a broad consensus as to the test to be applied when allegations of breach of the right enunciated in s. 11(b) have been raised, it being widely accepted that the `four factor balancing approach' of Barker v. Wingo is the appropriate one (see Graham Garton, Case Comment, loc. cit., at p. 178). The following appellate courts have also adopted the approach in Barker v. Wingo: Ontario in R. v. Antoine, supra; Re Regina and Beason, supra; and R. v. Heaslip, supra; Nova Scotia in Re Rahey and The Queen, supra; British Columbia in Re Regina and Thompson, supra; and the Northwest Territories in R. v. Dennis, Kubin and Frank (1984), 14 D.L.R. (4th) 205. The Courts of Appeal of Manitoba, New Brunswick and Québec, however, have not adopted the Barker v. Wingo approach: R. v. Belton (Man.), supra; R. v. Perry (1984), 14 C.C.C. (3d) 5 (N.B.); Re Kott and The Queen (1983), 7 C.C.C. (3d) 317 (Que.), leave to appeal to this Court refused, [1983] 2 S.C.R. ix.

 

159.            Although I am in substantial agreement that the test to be adopted is a balancing test, I differ with the U.S. Court on the elements which are to be considered and the factors which are to be weighed in that test. The reason why and the extent to which I disagree is the result of my distinguishing between the Canadian Charter  and its separate and more thorough treatment of "the fair trial right", and the American situation.

 

160.            There are, in my view, four factors which must be considered under s. 11(b) in determining the reasonableness of any given delay. These are:

 

1.                the growing impairment of the interests of the accused by the passage of time;

 

2.                waiver of time periods;

 

3.                the time requirements inherent in the nature of the case;

 

4.                institutional resources.

 

The Growing Impairment of the Interests of the Accused

 

161.            The interests of the accused which are protected by s. 11(b) have already been identified as the liberty and security of the person. Limitations on the liberty of the accused, as exemplified by pre‑trial detention, are easily and objectively ascertainable. However, the liberty interest of the accused may also be impaired by restrictions on the free movement of the individual, imposed while released on bail. Burger C.J. of the United States Supreme Court wrote of the Sixth Amendment in United States v. MacDonald, 456 U.S. 1 (1982) at p. 8, that "[t]he speedy trial guarantee is designed ... to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail". The same is true of s. 11(b).

 

162.            With respect to the security of the person, I do not believe that actual impairment need be proven by the accused to render the section operative. An objective standard is the only realistic means through which the security interest of the accused may be protected under the section. Otherwise, each individual accused would have the burden of demonstrating that he or she has subjectively suffered a form of anxiety, stress or stigmatization as a result of the criminal charge. We are dealing largely with the impairment of mental well‑being, a matter which can only be established with considerable difficulty at considerable cost.

 

163.            As Brennan J. noted in Dickey v. Florida, supra, at p. 54:

 

... there is usually little chance of conclusively showing the harm sustained by an accused as a result of public accusation. One commentator has stated that ‘(t)here is no way of proving the prejudice to the accused which occurs outside the courtroom ... the public suspicion, the severing of family and social ties, and the personal anxiety’ Note, The Right to a Speedy Criminal Trial, 57 Col. L. Rev. 846, 864.

 

164.            Neither should the varying degrees of sensitivity as between individual accused be the focus of the courts' analysis. A subjective approach would not only place a well nigh impossible burden of proof on most accused but might also lead to an unacceptable measure of inequality of treatment.

 

165.            The proper approach, in my view, is to recognize that prejudice underlies the right, while recognizing at the same time that actual proven prejudice need not, indeed, is not, relevant to establishing a violation of s. 11(b).

 

166.            This approach is predicated upon two propositions. First, prejudice is part of the rationale for the right and is assured by the very presence of s. 11(b) in the Charter . Consequently, there exists an irrebuttable presumption that, as of the moment of the charge, the accused suffers a prejudice the guarantee is aimed at limiting, and that the prejudice increases over time.

 

167.            Second, actual prejudice is, therefore, irrelevant when determining unreasonable delay. Actual prejudice will, however, be relevant to a determination of appropriate relief as will be hereafter explained. Prejudice to the liberty and security of the person, the former objectively ascertainable and the latter presumed, must be kept to a minimum if the presumption of innocence is to be respected.

 

168.            While there may be impairment of the security of the person without concurrent limitations on the liberty of the accused, the reverse is not equally true. Pre‑trial detention or restrictions on the movement of the accused will necessarily be accompanied by a presumptive impairment of the security of the person. In such cases, there is therefore a double impairment as both interests will be affected. It is incumbent upon the government and the courts, in such cases, to accord a first priority to those persons whose interests in both liberty and security of the person have been impaired and particularly to those whose liberty is most severely limited, i.e. those persons who remain in detention prior to and during the trial. Such persons are, in effect, purging a sentence before they have ever been found guilty; while detention may be required under the circumstances of the case it nevertheless represents the most serious transgression of the presumption of innocence and must be limited to the shortest possible time.

 

Waiver of Time Periods

 

169.            A second factor which must be considered is waiver of delay by the accused. Regarding waiver, I find the approach taken by this Court towards waiver of statutory procedural guarantees a useful starting point: Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41, at pp. 49‑50:

 

                    As a general proposition, I should like to restate here what was said by our brother Dickson J., speaking for the Court, in Park, [1981] 2 S.C.R. 64. He was of course speaking of the waiver by counsel of a voir dire (at pp. 73‑74):

 

                    No particular words or formula need be uttered by defence counsel to express the waiver and admission. All that is necessary is that the trial judge be satisfied that counsel understand the matter and has made an informed decision to waive the voir dire.  (...) Although no particular form of words is necessary the waiver must be express. Silence or mere lack of objection does not constitute a lawful waiver. The question is‑‑does the accused indeed waive the requirement of a voir dire and admit that the statement is voluntary and admissible in evidence? If that question can be answered in the affirmative I cannot think that any further procedural safeguards are necessary to protect the rights of an accused person.

 

                    Indeed the Court is saying in Park that the validity of such a waiver, and I should add that that is so of any waiver, is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process. This has long been recognized, as is illustrated by many cases, and particularly so by those dealing with a judge's duties as regards a plea of guilty, which is the waiver by an accused of his right to put the Crown's case to the test of a trial. (See amongst others, Adgey v. The Queen, [1975] 2 S.C.R. 426; Brosseau v. The Queen, [1969] S.C.R. 181). The judge's duties concerning any waiver are no different than those on a plea of guilty. The factors he will take into account in determining whether the accused has clearly and unequivocally made an informed decision to waive his rights will vary depending on the nature of the procedural requirement being waived and the importance of the right it was enacted to protect. However, always relevant will be the fact that the accused is or is not represented by counsel, counsel's experience, and, in my view of great importance in a country so varied as ours, the particular practice that has developed in the jurisdiction where the events are taking place.

 

Delay which is requested, caused by, or consented to, by the accused should normally be excluded from consideration when assessing the reasonableness of the overall period of delay. In some instances, however, the delay requested by the accused may be directly attributable to antecedent delay by the State; for example, where a key defence witness has moved during the delay period and must be traced by the defence. In such circumstances, the delay requested by the accused should not be excluded from consideration. Rather, it should be imputed to the State as part of the overall delay to be assessed.

 

170.            As regards delay requested or consented to, however, a distinction must be drawn between represented and unrepresented accused. Where an accused, represented by counsel, has requested, or consented to delay, waiver of such delay may be deemed "clear and unequivocal" with "full knowledge of the rights" and of the "effect the waiver will have on those rights".

 

171.            Such is not the case for unrepresented accused. Waiver must not only be requested or consented to, but it must also satisfy the requirements set out in Korponay, supra. The court, therefore, has a duty to ensure to its satisfaction that the waiver of time is clear, unequivocal, and informed as regards the right and the effect waiver will have on the right.

 

172.            Waiver cannot, therefore, be inferred from silence, whether the accused be represented or not, except in cases where delay is caused by an accused. It must be express and informed. Furthermore such waiver does not affect the right but merely excludes such time as is waived from the calculation of reasonable time.

 

173.            Nor can consent to one period of delay, e.g. an adjournment requested by the Crown, be construed as acquiescence to antecedent delay. It should be noted, however, that, while assertion is not relevant to the computation of time, it might well be relevant to preserving the right to invoke s. 11(b). By this I mean that an accused should not be able to raise delay arising before or during trial on appeal without having asserted his right before the end of the trial.

 

174.            It should also be noted that the issue of waiver, or consent to delay, will necessitate modifications to current court practices. Provisions will have to be made for properly recording the reasons for adjournments, waiver, or consent to delay by the accused, noting the period of delay to which consent is given and ensuring that such consent is informed.

 

175.            Finally, I would stress that assertion of his or her s. 11(b) right by the accused is irrelevant to the test of reasonableness and, contrary to the principle stated in Barker v. Wingo, supra, is not a factor to be considered or weighed under s. 11(b). Just as consent cannot be inferred from silence, failure to assert the right cannot be a factor weighed against the accused in the determination of reasonableness.

 

176.            In the Barker case, Powell J. added as a factor the accused's assertion of his right. In so doing, Powell J. endeavoured to distinguish this requirement from the doctrine of waiver while rejecting the "demand rule". At pages 531‑32 he went on to suggest that the absence of a demand is one of the factors to be considered.

 

Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

 

177.            Powell J., then, comes very close to accepting the "demand rule" which he had earlier rejected as inflexible and offensive to the basic premise that the courts will not infer waiver of a fundamental right from inaction: Carnley v. Cochran, 369 U.S. 506 (1962).

 

178.            I have two fundamental problems with this approach, the first concerning the method of waiver, which I have already discussed, and the second concerning what it is that is waived by an accused.

 

179.            Waiver should, in my view, be seen not as going to the right itself but only to the time waived. This is the problem with the approach taken by Powell J. as it appears, despite disclaimer, to suggest waiver of the right resulting from lack of assertion. Without deciding here the possibility of waiver of Charter  rights, I consider that time should itself be assessed subject to waiver.

 

Time Requirements Inherent in the Nature of the Case

 

180.            Two other factors which must be considered by the courts, the requirements inherent in the nature of the case and institutional resources, are closely related. Yet it is important that the two be distinguished if the problem of inadequate institutional resources is to be properly addressed under s. 11(b).

 

181.            The nature of the case is a factor which has been recognized in both American and international law. Powell J. wrote in Barker v. Wingo, supra, at pp. 530‑31:

 

...The length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.

 

182.            In the Wemhoff case, Eur. Court H. R., judgment of 27 June 1968, Series A No. 7 (Publications of the European Court of Human Rights), at p. 15, the European Court of Human Rights also listed "difficulties in the investigation of the case (its complexity in respect of facts or number of witnesses or co‑accused, need to obtain evidence abroad, etc.)" as a factor to be considered in determining whether the right to be brought to trial within a "reasonable time", guaranteed by article 5(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, had been breached.

 

183.            The nature of the case is a factor which must necessarily be considered by the courts in assessing the reasonableness of delay. Consideration of this factor means, of course, that the standard of reasonableness will be very flexible and will vary from case to case depending upon the circumstances of each individual case. Yet, it is important to stress that this criterion is wholly objective. It is not concerned with the adequacy of institutional resources; it is not concerned with the difficulties which a particular police force, Crown office or court may face in preparing or trying a case that result from institutional inadequacies such as lack of personnel, facilities, etc. Rather, the court must fix an objective and realistic time period for the preparation of the type of case which is at bar. It must determine the period which would normally be required, taking into account the number of charges, the number of accused, the complexity and volume and similar objective elements, for the preparation and completion of the case if fully adequate institutional resources and facilities were available.

 

184.            For example, if two weeks of testimony are drawn out over six weeks because of lack of facilities and the need to accommodate other commitments, only the two week period could be considered reasonable under this criterion, though, of course, it might possibly be excusable under the criterion of institutional facilities.

 

185.            Judges will rely heavily upon their practical experience and good sense in determining appropriate time delays. They will not simply assume that a given delay the Crown is seeking to justify under this heading was necessary, but will undertake an objective assessment of the delay which may be required in the circumstances of the case. For example, in a complex conspiracy case, as opposed to a straight forward breaking and entering charge, it may well be that the police and Crown had ample opportunity to investigate and compile evidence prior to the laying of the charge such that the Crown should be able to proceed promptly to trial. In short, the courts must, in assessing the delays which are required by the complexity of the case, seek the greatest degree of promptness which could objectively be met were institutional resources fully adequate to the task.

 

186.            Powell J. put emphasis on the conduct of the prosecution. This raises with me one of the most critical difficulties with his test, for I am of the view that the conduct of the prosecution, or of the judicial authorities for that matter, is largely irrelevant to the determination of reasonableness under s. 11(b).

 

187.            Powell J. wrote, in Barker v. Wingo, supra, at p.  531:

 

Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

 

He thus identifies three different types of reasons for delay: governmental misconduct, errors of circumstance, and institutional limitations.

 

188.            The first is "deliberate" delay designed to "hamper the defense"; it is to be "weighted heavily" against the government. This is in accord with the view expressed by Brennan J. in Dickey v. Florida, supra, at p. 43, that:

 

                   Deliberate governmental delay in the hope of obtaining an advantage over the accused is not unknown. In such a circumstance, the fair administration of criminal justice is imperiled. The Speedy Trial Clause then serves the public interest by penalizing official abuse of the criminal process and discouraging official lawlessness.... Thus the guarantee protects our common interest that government prosecute, not persecute, those whom it accuses of crime.

 

189.            The purpose of s. 11(b), however, is not to penalize or sanction misconduct by the authorities. The section is concerned not with abuse of process but with abusive process. The Crown's motives, whatever they may be, do not render a reasonable delay unreasonable nor can they transform an unreasonable delay into a reasonable lapse of time. Thus, whether the delay is the result of malice, negligence or inadvertence is of little import, the remedy being in all cases at least a stay, except, of course, when considering additional remedies, such as damages.

 

190.            With respect, whether governmental delay is deliberate or not is irrelevant to the determination of the violation. Indeed, the right may be violated, in some circumstances, despite the best intentions and best efforts of the authorities. The function of the doctrine of abuse of process is, therefore, in my view entirely distinct from that of s. 11(b). While a reduction in official misconduct may be a consequence of s. 11(b), this is not its purpose. In the eyes of the individual accused, it matters little whether the delay is imputable to the authorities or not; what truly matters is the extent to which the delay will impair his or her interests. Section 11(b) does not to any extent represent an entrenchment or an extension of the common law doctrine of abuse of process.

 

191.            The second type of reason, "a valid reason", such as a missing witness "justifies", in Powell J.'s view, "an appropriate delay". I do not see any compelling reason, however, for considering that circumstances such as a missing prosecution witness will render valid an overly lengthy delay. The accused's interests are no less stricken because the prosecution is unable to find its witness or its file. It is no longer the individual but the state which must bear the brunt of the inconvenience of such circumstances. Let us not forget that it is not the individual who chose to initiate the prosecution and the time to do so. Failure to bring the case for the prosecution forward within a reasonable period of time, as defined earlier, will result in a violation of s. 11(b).

 

192.            Of course, it is to be noted that, in appropriate cases, such as when the authorities are satisfied, given the circumstances, that the disappearance of a witness is not without suspicion, it will always be open to the Attorney General to enter a stay under the Code. This will, understandably, not be done lightly, as the prosecution will have to convince the Attorney General to adopt this route, thereby attracting political accountability.

 

193.            The third type of reason advanced by Powell J. leads us to a consideration of our fourth criterion, institutional limitations.

 

Institutional Resources

 

194.            In an ideal world there would be no delays in bringing an accused to trial and there would be no difficulties in securing fully adequate funding, personnel and facilities for the administration of criminal justice. As we do not live in such a world, some allowance must be made for limited institutional resources.

 

195.            It is imperative, however, that in recognizing the need for such a criterion we do not simply legitimize current and future delays resulting from inadequate institutional resources. For the criterion of institutional resources, more than any other, threatens to become a source of justification for prolonged and unacceptable delay. There must, therefore, be some limit to which inadequate resources can be used to excuse delay and impair the interests of the individual.

 

196.            In seeking to apply this fourth criterion, the courts must refrain from simply drawing an average between the worst and the best in the country, that is, between those areas where delays are longest and those which offer the best examples of promptness. The appropriate models are those jurisdictions which have the greater degrees of promptness, or the lesser amounts of systemic delay. They are examples of the appropriate accommodation between demands on the system and allocation of available resources.

 

197.            It is no answer to say that demands on the system may be less in some areas than in, to give an example, a congested urban centre. The point is that there has been in such jurisdictions an allocation of sufficient resources to meet the demands and administer the criminal justice system with minimal delay. Greater delays in other areas may simply mean that sufficient resources have not been allocated to deal adequately with current demands. The measure of what is possible in adjusting resources to demands comes from those jurisdictions which have the lesser amounts of systemic delay. That is the measure which must serve for all jurisdictions.

 

198.            Such a criterion has the obvious advantage of being anchored in reality. It does not seek to impose an arbitrary standard, such as a fixed ceiling, e.g. four months or five months, on excusable delay but looks to what has in fact been accomplished in various jurisdictions. It is those very jurisdictions which have been most successful in minimizing systemic delay which thus set the measure of what is possible, rather than the courts in abstracto. Additionally, this approach is more flexible than would be fixed ceilings, all the while establishing an objective, national standard. It would reduce discrepancies between different parts of the country and ensure that "unreasonable delay in run‑of‑the‑mill criminal cases cannot be justified by simply asserting that the public resources provided by the State's criminal‑justice system are limited and that each case must await its turn" (Barker v. Wingo, supra, per White J., Brennan J. concurring, at p. 538).

 

199.            Admittedly, however, this is a criterion which is difficult to measure and apply in the absence of factual evidence. Moreover, since the Crown in this case did not invoke institutional limitations as a justification for delay, there has been no argument before this Court as regards this criterion. Nor has there been any evidence adduced which would enable this Court to establish clearer and more precise guidelines for the courts.

 

200.            Matters could, of course, be expedited either by legislation, which would then be subject to s. 1  of the Charter , or by a reference to one of the courts of appeal or to this Court. The whole issue could thus be considered thoroughly and not at the expense and through the limited means of an accused and local Crown authorities.

 

201.            Nevertheless, one cannot simply walk away from the question without giving some indication as to the principles which should, in the absence of appropriate information, guide the courts in determining the extent to which inadequate institutional resources may serve to justify delay. Of course, the institutional limitations must at the outset be genuine. But that alone is not sufficient.

 

202.            Parliament itself has clearly contemplated that the criminal justice system should function within certain minimum delay periods and has thus given us indications as to what should be tolerable limits on delay caused by inadequate institutional resources. Various examples of specific time periods can thus be found in our Criminal Code .

 

203.            The Code provides at s. 459, that where an accused has been charged with an offence other than an offence mentioned in s. 457.7, is being detained in custody and the trial has not commenced, the person having custody of the accused shall, upon the expiration of

 

(a)               ninety days in the case of an indictable offence; or

 

(b)               thirty days in the case of a summary conviction offence

 

apply to a judge for a hearing to determine whether or not the accused should be released from custody. Section 732.1 of the Code (in force at the time of writing this judgment) provided that the Attorney General could enter a stay of proceedings and later recommence proceedings without laying a new information, except that where no notice of recommencement had been given within one year after the entry of the stay or before the expiration of the time within which the proceedings could have been instituted, whichever was the earlier, the proceedings were deemed never to have been commenced.

 

204.            Additionally, s. 465(1)(b) of the Code enables a justice to adjourn a preliminary inquiry where it appears to be desirable to do so by reason of the absence of a witness, the inability of a witness who is ill to attend or for any other sufficient reason, but for no longer than eight days unless the accused and the prosecutor consent to the proposed adjournment. Under s. 465(1)(c) a justice may also remand an accused to custody for observation for a period not exceeding 30 days where there is reason to believe that the accused may be mentally ill or disturbed; the period of detention may be prolonged, under s. 465(2)(b), up to a period not exceeding 60 days where the justice is satisfied that observation for such period is required in all the circumstances of the case.

 

205.            By such provisions, Parliament has indicated that under normal circumstances, the criminal justice system should be capable of functioning adequately within relatively narrow periods of delay. As such, it has provided useful indications, to which the courts should refer in setting the appropriate limits on delay caused by limited institutional resources.

 

206.            Other common law jurisdictions have also established various periods of delay which can provide useful indications for our courts.

 

207.            For example, the Rules of Criminal Procedure adopted by the Pennsylvania Supreme Court provide at Rule 1100(a)(2), that,

 

                    Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred and eighty (180) days from the date on which the complaint is filed.

 

208.            In addition, a number of American statutes provide specific periods of time within which accused must be brought to trial: e.g. California Penal Code § 1382 (West 1985) stipulates that when a person has been "held to answer" for an offence, an information must be filed within 15 days and that a defendant must be brought to trial within 60 days of the indictment or filing of the information; in misdemeanour cases, the defendant must be brought to trial within 30 days after arraignment if he is in custody, or 45 days in all other cases; Colorado Criminal Code, Colo. Rev. Stat. § 18‑1‑405 (1973), states that a defendant must be brought to trial within 6 months; Illinois Code of Criminal Procedure, Ill. Ann. Stat. ch. 38, § 103‑5 (Smith‑Hurd 1980), states that every person in custody shall be tried within 120 days from the date he was taken into custody and that every person on bail or recognizance shall be tried within 160 days; Michigan Code of Criminal Procedure, Mich. Stat. Ann. § 28.978 (Callaghan 1985), provides that every person held in prison upon an indictment shall be tried at the next term of the court after the expiration of 6 months from the time when he was imprisoned; South Carolina Code of Criminal Procedure, S.C. Code Ann. § 17‑23‑90 (Law Co‑op. 1985), provides that a person held in custody must be indicted and tried within two court terms after his confinement (see State v. Fasket, 5 Rich. (39 SCL) 255 (1851)); 18 U.S.C. ch. 208 § 3161(c)(1) (1982) states that in any case in which a plea of not guilty is entered, the trial must commence within 70 days.

 

209.            There appears to be considerable variation in the length of delay which is permitted under the various statutes. It has been noted, however, that in contrast to the specific statutory delays, the ad hoc approach to speedy trial under the Sixth Amendment has rarely led to dismissal for delay of less than several years. (Note, "The Lagging Right to a Speedy Trial," 51 Va. L. Rev. 1587 (1965) at pp. 1590‑91; see, e.g., Taylor v. United States, 238 F.2d 259 (1956 C.A.D.C.) (6 years); United States v. Provoo, 17 F.R.D. 183 (1955 D.C. Md.), aff'd 350 U.S. 857 (1955) (6 years); United States v. Chase, 135 F. Supp. 230 (1955 D.C. Ill.) (20 years)). Even in the landmark case of Barker v. Wingo, supra, it was held that a five year delay did not violate the right to a speedy trial. This in my view is to be avoided.

 

210.            Finally, in seeking to apply this criterion, the courts should bear in mind the purpose of s. 11(b), which is to limit the various forms of prejudice to the accused (who is presumed innocent) by circumscribing the time period within which they may occur. The courts must not simply legitimize current and future delays resulting from inadequate institutional resources.

 

211.            As this criterion takes on precision with the adduction of appropriate information and a growing number of decisions, none should delude himself or herself as to its consequences. In some areas of the country, delays in bringing accused to trial might well be wholly unacceptable and significant efforts will be required to meet the test of s. 11(b). It may well be that the criminal justice system as a whole will have to be accorded greater priority; it may also mean that within the criminal justice system greater priority will need be given to providing sufficient resources, both human and financial, for the courts and the Crown offices. By giving effect to the rights of the accused under s. 11(b), governments will be addressing the problem of providing sufficient resources for the administration of criminal justice. Failure to do so, however, will lead to a result which all would prefer to avoid, the freeing of the guilty for reasons other than failure on the part of the Crown to discharge its burden of proof.

 

212.            Adoption in Canadian law of the third type of reason outlined by Powell J., the "more neutral reason", without limits or ceilings would lead to unacceptable results, as it would amount to little more than affixing a constitutional seal of approval upon the status quo. Indeed, the problem of systemic delay, that is, delay attributable to the fault of no specific individual actor or actors within the criminal justice system, is the acid test of s. 11(b).

 

213.            In many ways, the problem of systemic delay poses one of the first significant challenges to this Court's interpretation and application of the Charter . Although other Charter  issues have, of course, been resolved and Lord Sankey L.C.'s famous passage in Edwards v. Attorney‑General for Canada, [1930] A.C. 124 at p. 136 has been oft cited (see, e.g. Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 at p. 365), none of these has yet had such significant consequences for the administration of justice. Under s. 11(b), the courts cannot simply admonish the executive or legislative branches for failure to meet the requirements of the Charter ; we must now look to ourselves and determine whether the judiciary is adequately responding to the demands of the Charter  as well. Although all branches of government have a measure of responsibility, the judiciary must play a central role in ensuring that the right to be tried within a reasonable time is not frustrated by systemic delay.

 

214.            Our legislators have, by the entrenchment of s. 11(b), established as a fundamental societal priority the maintenance of an effective and prompt system for the administration of criminal justice. There can be no assumption that the constitutional right to be tried within a reasonable time must conform to the status quo; rather, it is the system for the administration of criminal justice which must conform to the constitutional requirements of the Charter . We cannot shrink from our task of interpreting the Charter  in a full and fair manner, even when, and perhaps especially when, we are confronted with the possibility of resulting significant institutional adjustment.

 

215.            Of course, it is obvious that s. 11(b) is not an absolute right; few rights, if any, can be considered absolute. It is equally obvious that societal resources are not unlimited. Consequently, there will of necessity be limits to which funding, facilities and personnel can be devoted to the prompt and proper administration of criminal justice. Additionally, care must be taken to ensure that justice is not sacrificed to speed, for the latter is not an end itself but simply one element of the former. Assembly‑line justice is neither desirable nor required by s. 11(b); in fact it will often result in a breach of the accused's right to a fair trial guaranteed under ss. 7  and 11 (d).

 

216.            One inevitable conclusion which flows from the foregoing is that the test of reasonableness required by s. 11(b) cannot be founded upon the criterion "reasons for delay", as elaborated by Powell J. in Barker v. Wingo, supra.

 

217.            The factors which are to be considered in the test of reasonableness under s. 11(b) differ considerably from those which have been elaborated in Barker v. Wingo, supra. To that extent, therefore, I am in respectful disagreement with the approach taken in R. v. Antoine, supra, and other Canadian cases which would have imported without appropriate qualification the Barker v. Wingo standard into the Charter .

 

The Test

 

218.            Our test of reasonableness involves a balancing of the impairment of the accused's interests, such impairment becoming increasingly pronounced with the passage of time, against the other three factors: (1) waiver of time periods, (2) the time requirements inherent in the nature of the case and (3) limitations to institutional resources. The latter three serve to justify delay, or continued impairment of the accused's interests.

 

Reference Periods

 

219.            There is no magic moment beyond which a violation will be deemed to have occurred, and this Court should refrain from legislating same. In reality, however, when judges assess the situation in individual cases, they will be measuring the delays against some norm each judge considers to be prima facie the tolerable limit for the ordinary, average case, dependent upon whether it is to be tried summarily, before a judge, or by a jury. The same operation of course applies to courts of appeal when reviewing findings below. We cannot be blind to the fact that the dynamics of the assessment of the reasonableness of prejudice due to the passage of time will in reality involve reference by the judge to some personal average point in time.

 

220.            Martin J.A., in R. v. Antoine, supra, acknowledges the presence in the judge's mind of some standard beyond which there will be prima facie a violation, where he said, at p. 106:

 

                    In my view, in determining the question whether the respondent's right under s. 11 (b) of the Charter  to be tried within a reasonable time has been infringed, the preferable approach is to examine the entire period between the laying of the initial information and the trial of the accused to determine whether the delay, in the circumstances, was reasonable. The determination of the reasonableness of the delay requires an examination of the reasons for the delay, if prima facie the delay appears excessive.

 

221.            I hasten to add that a finding that the delay involved is prima facie excessive is not a condition precedent to the inquiry into the reasonableness of the delay, i.e., to the weighing and balancing of the four criteria elaborated above. It is simply an approximate point at which the courts may properly look to the Crown to justify additional delay. Such a period, of course, is, I should repeat, no more than a reference point. It may well be that a balancing of the four criteria of reasonableness will lead to a finding of a violation for lesser periods of delay. Conversely, greater periods of delay may well be held to be reasonable depending upon, once again, an assessment and a weighing of the criteria. What does happen, and that is a reality that must be acknowledged, is that there comes a time when the judge turns from the applicant to the Crown to be told what is exceptional in the case.

 

222.            It is the application under s. 24(1)  which triggers the inquiry, not the passage of a certain period of time. The amount of time elapsed determines who of the Crown or applicant the judge will call upon to justify the case being unusual.

 

223.            What these periods should be in concrete terms is a question that will be answered as more and more s. 11 (b) applications are decided by the trial and appeal courts.

 

Person Charged

 

224.            Though the time span considered in this case undoubtedly ran after Mills had become "a person charged", the meaning of those words must be determined with some precision.

 

225.            Though s. 11 of the Charter  applies to offences other than those prosecuted under the Criminal Code , I will address only the latter.

 

226.            A number of courts have suggested that the word "charged" in s. 11 serves only to indicate the class of persons entitled to assert the right and not the starting point for the computation of time. (See, e.g. R. v. Dahlem (1983), 25 Sask. R. 10  (Q.B.); Re Rahey and The Queen, supra; R. v. H. W. Corkum Construction Co. (1983), 57 N.S.R. (2d) 241 (C.A.)) Others have held that the word "charged" indicates both the class of persons entitled to assert the right and the point of commencement for the "reasonable time" inquiry. (See, e.g. R. v. Belcourt (1982), 69 C.C.C. (2d) 286 (B.C.S.C.); R. v. Boron (1983), 36 C.R. (3d) 329 (Ont. H.C.); R. v. Lefort (1984), 12 C.C.C. (3d) 332 (Que. S.P.); Re Regina and Carter (1983), 9 C.C.C. (3d) 173 (B.C.S.C.))

 

227.            The Ontario Court of Appeal seems to have adopted a third position. In R. v. Young (1984), 13 C.C.C. (3d) 1, the views of Dubin J.A., speaking for the court, were summarized as follows in the headnote:

 

The reasonable delay referred to is the delay between the time that a person is charged and the time that he is tried, and there was no such delay in this case. While the court may consider what has transpired before the laying of the charge in determining whether there has been an unreasonable post‑charge delay, as there was no delay in this case the trial judge erred in invoking s. 11(b).

 

228.            This approach, however, seems to be premised on the view that the reasons for the delay, as elaborated in Barker v. Wingo, is properly part of the test of reasonableness. I have already indicated, however, that the Barker criteria and, in particular the conduct of the Crown, do not form part of the test under s. 11(b). Hence, with respect, I do not believe that the approach taken by the Ontario Court of Appeal on this issue is appropriate for s. 11(b).

 

229.            I agree, rather, with the view that the time frame to be considered in computing trial within a reasonable time only runs from the moment a person is charged. Pre‑charge delay will in no way impair those interests with which s. 11(b) is concerned. Prior to the charge, the individual will not normally be subject to restraint nor will he or she stand accused before the community of committing a crime. Thus, those aspects of the liberty and security of the person protected by s. 11(b) will not be placed in jeopardy prior to the institution of judicial proceedings against the individual by means of the charge.

 

230.            Pre‑charge delay is relevant, however, to the right to a fair trial protected by ss. 7  and 11 (d) of the Charter . I am in substantial agreement with the following passage from McKay J.'s judgment in Attorney General of British Columbia v. Craig Prov. J. (1983), 36 C.R. (3d) 346 (B.C.S.C.) in which he stated, at p. 353:

 

I have no doubt that relief is available under s. 11 (d) or s. 7  and possibly by way of a finding of abuse of process if it is demonstrated that pre‑information or pre‑indictment delay would cause substantial prejudice to an accused's right to a fair trial and that the delay was caused by the police or the Crown for an oblique purpose.

 

231.            Pre‑charge delay is relevant under ss. 7  and 11 (d) because it is not the length of the delay which matters but rather the effect of that delay upon the fairness of the trial. Pre‑charge delay is as relevant as any other form of pre‑charge or post‑charge conduct which has a bearing upon the fairness of the trial. In other words, pre‑charge delay is relevant to those interests which are protected by the right to a fair trial whereas it is irrelevant to those which are protected by s. 11 (b). Similarly, pre‑charge delay may be a relevant consideration under the doctrine of abuse of process in the same manner as any other conduct by the police or the Crown which may be held to constitute an abuse of process.

 

232.            A good many definitions of the word "charged" have been advanced in both the pre‑Charter  and post‑Charter  jurisprudence. Of particular note are the comments of Dickson J. (as he then was) in R. v. Chabot, [1980] 2 S.C.R. 985. In that case, Dickson J. wrote, at p. 1005:

 

As the Supreme Court of the United States observed in United States v. Patterson (1893), 150 U.S.R. 65 (at p. 68) a criminal charge, strictly speaking, exists only when a formal written complaint has been made against the accused and a prosecution initiated. "In the eyes of the law a person is charged with crime only when he is called upon in a legal proceeding to answer such a charge".

 

233.            I do not believe, however, that the terms of the Charter  are necessarily bound by definitions formulated in pre‑Charter  times in different contexts and for different purposes. The definition given to the word "charged" as it relates to s. 11 (b) must be in accord with the nature and purpose of the section.

 

234.            As Le Dain J. has written in R. v. Therens, [1985] 1 S.C.R. 613, at p. 638:

 

                   In my opinion the premise that the framers of the Charter  must be presumed to have intended that the words used by it should be given the meaning which had been given to them by judicial decisions at the time the Charter  was enacted is not a reliable guide to its interpretation and application. By its very nature a constitutional charter of rights and freedoms must use general language which is capable of development and adaptation by the courts.

 

235.            Moreover, the definition must take into consideration the variety of means by which an individual may be brought into the criminal justice process. And finally, it should be a "substantive" rather than a "formal" definition: Eur. Court H. R., Deweer case, judgment of 27 February 1980, Series A No. 35 (Publications of the European Court of Human Rights), at p. 23.

 

236.            Accordingly, I am of the view that the definition of the word "charged" which is most appropriate under s. 11 (b) is the following. A person is charged as of,

 

(a)               the service of a summons, the execution of a warrant pursuant to the laying of an information under s. 455.3  of the Criminal Code , or as of the moment a person is informed by the authorities of their existence; or

 

(b)               the issuance of an appearance notice under s. 451 of the Code or release from custody under ss. 452 or 453 of the Code; or

 

(c)               as of the arrest, in the case of all other arrested persons not covered by (a) or (b).

 

237.            This definition is consistent with the rationale of s. 11 (b). The charge, from which the "reasonable time" inquiry begins, will thus correspond to the start of the impairment of the accused's interests in the liberty and security of the person.

 

238.            Keeping this rationale in mind, there will be instances where a person might be considered as "charged" prior to the actual charge for which he is being prosecuted. To give but one example. If the Crown withdraws the charge to charge under a different section but for the same transaction; in such a case, subject to the circumstances it might well be appropriate to consider that, for the purpose of assessing the reasonableness of the time elapsed, the applicant was charged as of the former charge.

 

Remedies

 

239.            Section 11 (b) gives an accused person the right to be tried within a reasonable time. After the passage of an unreasonable period of time, however, no trial, not even the fairest possible trial, is permissible. For a finding of unreasonable delay is, in effect, a finding of a s. 11 (b) violation; to allow a trial to proceed after such a finding would be to participate in a further violation of the Charter . In effect, therefore, s. 11 (b) gives an accused person the right not to be tried once an unreasonable period of time has elapsed. In Barker v. Wingo, Powell J. wrote at p. 522:

 

                   The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy.

 

Burger C.J. later wrote in Strunk v. United States, 412 U.S. 434 (1973) at p. 440, "In light of the policies which underlie the right to a speedy trial, dismissal must remain, as Barker noted, `the only possible remedy.' " The same is true, in my view, under s. 11 (b), in that a trial cannot be allowed to proceed subsequent to a finding that a violation has occurred.

 

240.            I am also in substantial agreement, however, with the following passage of Martin J.A. in Re Regina and Beason, supra, at p. 43:

 

                   In my opinion there may well be cases where, balancing all the various factors, ... it will be apparent that the point is being approached, although it has not yet been reached, when any significant continuation of the delay in the trial of an accused person will result in an abridgment of his constitutional right to be tried within a reasonable time. In those circumstances the court, in the exercise of its inherent power to control its own process, may direct that the trial proceed at an early date and dismiss the charge if the Crown fails to proceed on that date.

 

241.            It is, in other words, open to the courts to take preventive measures, based on their inherent power to control their process, prior to an actual violation of s. 11 (b). Where, however, on balancing the various factors, the court decides that the accused's right to be tried within a reasonable time has already been contravened, a stay of proceedings will be the appropriate remedy. It is not necessarily the only remedy, for additional remedies may be just and appropriate in the circumstances of the case. The stay is a minimum remedy, to which others may be added, such as, possibly, damages, if it be proved that there was malice on the part of the Crown and resulting prejudice.

 

Transitional Period

 

242.            This case is the first to have presented this Court with the opportunity of establishing appropriate guidelines for the application of s. 11 (b). The full scope of the section, and the nature of the obligation it has imposed upon the government and the courts has remained uncertain for the period prior to the rendering of this judgment.

 

243.            Given this uncertainty and the terminative nature of the remedy for a violation of the section, i.e., a stay of proceedings, I am of the view that a transitional approach is appropriate, and indeed necessary, to enable the courts and the governments to properly discharge their burden under s. 11 (b). This is not to say that different criteria ought to apply during the transitional period, that is, the period prior to the rendering of this judgment, but rather that the behaviour of the accused and the authorities must be evaluated in its proper context. In other words, it would be inaccurate to give effect to behaviour which occurred prior to this judgment against a standard the parameters of which were unknown to all.

 

244.            Consequently, facts relevant to two of the criteria of reasonableness which have been elaborated in this judgment, i.e., waiver of delay and limitations to institutional resources, must be evaluated differently during the transitional period.

 

245.            Silence by the accused or defence counsel in the face of requests for delay by the Crown, cannot, during the transitional period, be given the same consequences as after this period. Where there is no indication in the record of an objection by the accused or defence counsel, that silence should generally be construed as acquiescence in the delay. To do otherwise would be to retrospectively attach consequences to behaviour, when those were not intended at the time.

 

246.            For similar reasons, while delay which is due to limited institutional resources is still a factor to be considered and weighed, it will be open to the courts, during the transitional period, to excuse any passage of time as long as it is the result of actual institutional limitations.

 

247.            Under no circumstances, however, are such transitional measures to apply to persons who are charged subsequent to the rendering of this judgment.

 

248.            It should be noted that this transitional approach also accommodates the problem of pre‑Charter delay. The test of reasonableness remains essentially the same for both pre‑Charter  and post‑Charter delay. Hence, pre‑Charter delay is to be considered and given the same weight, assessed in the same manner, as post‑Charter delay when determining a violation.

 

249.            Before addressing the facts of this case, two observations seem to me appropriate. A trial court's assessment of the "time requirements inherent in the nature of the case" should only in very exceptional cases be interfered with by reviewing courts. Likewise, the superior court and the court of appeal of a province are better placed than this Court to assess whether time elapsed is actually due to institutional limitations.

 

250.            In short, this Court should not interfere with a court of appeal's final determination of a s. 11 (b) application, except when a matter of principle is involved or when clearly unacceptable delay is being excused.

 

251.            Now to dispose of this case.

 

252.            The delay in this case, if unexplained, is surely prima facie unreasonable. Of course most of it is easily explained by the fact that the accused caused it and there is therefore waiver as regards those periods of time. There remains Osborne J.'s finding that there was a delay of nineteen months which was not caused by the applicant. Such a delay is open to justification, such as, to give examples, acquiesced to by the applicant or because of institutional limitations or because of some excusable peculiar difficulty inherent in the nature of the case. However, the Crown's position as regards those nineteen months is, to put it at its best, to excuse nine months and to acknowledge that the remaining ten months were caused by non‑intentional but nevertheless negligent inaction on its part. With deference to contrary views, I am of the view that ten months to try a person is in run‑of‑the‑mill situations long and, if challenged under the Charter , needs to be explained and justified; and in most cases probably will. Those ten months when inserted into other explained and justified periods of time still stand to be explained. The Crown's admission as regards those ten months of inaction due to nothing else but negligence renders the overall period to bring Mills to trial unreasonable.

 

253.            I am not unmindful of the fact that Mills' conduct in relation to this case was the cause of much delay. But this does not excuse those ten months of inaction, though under other circumstances it could have done so.

 

254.            I would therefore allow the appeal and order that the proceedings before Judge Baker be stayed.

 

                   The reasons of Beetz, McIntyre and Chouinard were delivered by

 

255.            McIntyre J.‑‑This appeal involves consideration of the term a "court of competent jurisdiction" in s. 24(1)  of the Canadian Charter of Rights and Freedoms  and as well of the procedure to be employed in seeking a remedy under that section.

 

256.            My brother Lamer in his reasons for judgment has set out the facts regarding the history of the proceedings and events before the preliminary hearing commenced and I need not repeat them here. I will, however, briefly review the proceedings which took place in the various courts leading up to the appeal to this Court. At the commencement of the preliminary hearing before Judge Baker in the Provincial Court (Criminal Division) for the Country of Middlesex, and before any evidence was heard, a preliminary motion was made by the accused, the appellant before us, on two bases, namely, that the proceedings by reason of delay amounted to an abuse of process and should on that account be stayed, and that the appellant's right under s. 11 (b) of the Charter , to be tried within a reasonable time, had been violated and the proceedings were amenable to a remedy under s. 24(1) . Judge Baker received evidence by affidavit and held, that he had no jurisdiction to deal with the common law concept of abuse of process but that he, sitting as a judge conducting a preliminary hearing, was a court of competent jurisdiction under s. 24(1)  of the Charter . He concluded that s. 24(1)  raised a substantive matter and was not, therefore, retrospective. He dismissed the motion: (1982), 2 C.R.R. 300.

 

257.            A motion was then made in the motions court in London before Osborne J. The motion sought an order in the nature of prohibition to prohibit Judge Baker, or any other provincial court judge, from proceeding with the preliminary hearing and it sought as well an order in the nature of certiorari quashing the information, together with a remedy under s. 24(1)  of the Charter  alleging an infringement of the accused's rights under s. 11 (b) of the Charter .

 

258.            Osborne J. expressed the view that Judge Baker, as a preliminary hearing judge, was a "court of competent jurisdiction" under s. 24(1)  of the Charter . He nevertheless concluded on a consideration of the merits that there had been no unreasonable delay. He dismissed the motion: (1983), 3 C.R.R. 63, 2 C.C.C. (3d) 444, 144 D.L.R. (3d) 422, 40 O.R. (2d) 112.

 

259.            An appeal was taken to the Ontario Court of Appeal under s. 719  of the Criminal Code . The appeal under that section could apply only to the prerogative portion of the case, that is, the refusal of the application for an order of prohibition and certiorari. The Court of Appeal declined to express an opinion as to whether Judge Baker, as a preliminary hearing judge, was a court of competent jurisdiction, but they were not persuaded that Osborne J. was in error on the merits and they dismissed the appeal: (1983), 6 C.R.R. 88, 7 C.C.C. (3d) 573, 2 D.L.R. (4th) 576, 43 O.R. (2d) 631.

 

260.            In the result, as these proceedings stand prior to the resolution of this appeal, the matter is to be returned to the provincial court for the completion of the preliminary. Since I have come to the conclusion that both Judge Baker and Osborne J. reached the right result (though as will appear in my view for the wrong reasons) a simple dismissal of the appeal with nothing further would dispose of the matter. The question of a "court of competent jurisdiction" under s. 24(1)  of the Charter  is, however, one of importance and one which has given concern to courts at all levels in the country. While it is generally wise not to deal with issues not directly raised, it appears to me that the question must be considered in this appeal and dealt with.

 

261.            To begin with, it must be recognized that the jurisdiction of the various courts of Canada is fixed by the Legislatures of the various provinces and by the Parliament of Canada. It is not for the judge to assign jurisdiction in respect of any matters to one court or another. This is wholly beyond the judicial reach. In fact, the jurisdictional boundaries created by Parliament and the Legislatures are for the very purpose of restraining the courts by confining their actions to their alloted spheres. In s. 24(1) of the Charter  the right has been given, upon the alleged infringement or denial of a Charter  right, to apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. The Charter  has made no attempt to fix or limit the jurisdiction to hear such applications. It merely gives a right to apply in a court which has jurisdiction. It will be seen as well that it prescribes no remedy but leaves it to the court to find what is appropriate and just in the circumstances.

 

262.            The questions then arise as to which of the courts are courts of competent jurisdiction within the meaning of s. 24(1)  of the Charter  and what is the nature of the remedy or remedies which may be given. In attacking these problems, that of jurisdiction and that of remedy, the courts are embarking on a novel exercise. There is little, if any, assistance to be found in decided cases. The task of the court will simply be to fit the application into the existing jurisdictional scheme of the courts in an effort to provide a direct remedy, as contemplated in s. 24(1) . It is important, in my view, that this be borne in mind. The absence of jurisdictional provisions and directions in the Charter  confirms the view that the Charter  was not intended to turn the Canadian legal system upside down. What is required rather is that it be fitted into the existing scheme of Canadian legal procedure. There is no need for special procedures and rules to give it full and adequate effect.

 

263.            A great many Charter  questions will arise in criminal cases such as the one before us. My comments will be confined to such cases. The Criminal Code  sets up the framework for the disposition of criminal matters with respect to both indictable and summary conviction offences. A summary conviction court, as defined in s. 720 of the Code, presided over by a justice or magistrate as defined in s. 2 of the Code, is provided for the disposition of summary conviction matters at first instance. For indictable offences, the Code creates both a superior court of criminal jurisdiction (s. 2 ) which has jurisdiction to try any indictable offence (s. 426 ) and a court of criminal jurisdiction, as defined in s. 2 of the Code, which has a lesser jurisdiction in the trial of indictable offences and which includes a magistrate or judge acting under Part XVI of the Code. These courts, together with the summary conviction courts, deal with all criminal proceedings under the Criminal Code  at first instance. In addition, where an accused charged with an indictable offence elects trial other than before a magistrate, a preliminary hearing is held in accordance with Part XV of the Code. This occurred in the case at bar. Faced with this choice of courts, where does the aggrieved person seek a s. 24(1)  remedy?

 

Magistrate Sitting at Preliminary Hearing

 

264.            The preliminary hearing magistrate, now ordinarily a provincial court judge, finds his jurisdiction in Part XV of the Criminal Code  of Canada. He is given jurisdiction to conduct the inquiry and in the process he must hear the evidence called for both parties and all cross‑examination. He is given procedural powers under ss. 465 and 468 of the Code, including a power to direct the trial of an issue as to the fitness to stand trial. His principal powers are conferred in s. 475 . After all the evidence has been taken, he may commit the accused for trial if, in his opinion, the evidence is sufficient, or discharge the accused if, in his opinion, upon the whole of the evidence no sufficient case is made out to put the accused on trial. He has no jurisdiction to acquit or convict, nor to impose a penalty, nor to give a remedy. He is given no jurisdiction which would permit him to hear and determine the question of whether or not a Charter  right has been infringed or denied. He is, therefore, not a court of competent jurisdiction under s. 24(1)  of the Charter . It is said that he should be a court of competent jurisdiction for the purpose of excluding evidence under s. 24(2) . In my view, no jurisdiction is given to enable him to perform this function. He can give, as I have said, no remedy. Exclusion of evidence under s. 24(2)  is a remedy, its application being limited to proceedings under s. 24(1) . In my view, the preliminary hearing magistrate is not therefore a court of competent jurisdiction under s. 24(1)  of the Charter , and it is not for courts to assign jurisdiction to him. I might add at this stage that it would be a strange result indeed if the preliminary hearing magistrate could be said to have the jurisdiction to give a remedy, such as a stay under s. 24(1) , and thus bring the proceedings to a halt before they have started and this in a process from which there is no appeal.

 

Courts Exercising Criminal Jurisdiction Other than the Provincial Superior Court

 

265.            These courts, which include by definition a magistrate under Part XVI of the Criminal Code  and, for purposes of this discussion, magistrates and summary conviction courts, will deal with by far the greatest number of criminal cases. For practical purposes most of the criminal work at first instance is done in these courts, therefore most of the applications for a remedy under s. 24(1)  of the Charter  will be made to them. These courts will be courts of competent jurisdiction, where they have jurisdiction conferred by statute over the offences and persons and power to make the orders sought. It is to be hoped that trial judges will devise, as the circumstances arise, imaginative remedies to serve the needs of individual cases. Such remedies must remain, however, subject to constitutional restraint, that is, they must remain within the ambit of criminal powers. A claim for a remedy under s. 24(1)  arising in the course of the trial will fall within the jurisdiction of these courts as a necessary incident of the trial process. There will be an exception where a claim for prerogative relief in the nature of prohibition, certiorari, mandamus or other prerogative matter is raised. Such a claim would fall within the sole jurisdiction of the superior court. Where such relief is sought, or where a claim for relief, if granted, would involve interference in proceedings before another court, there would be no jurisdiction in the non‑superior court of criminal jurisdiction.

 

Provincial Superior Court

 

266.            In each province and in the Territories the superior court has been created by statute. This court has generally been given all the historic jurisdiction and power of the High Court in England and in all matters arising between the Crown and subject and subject and subject. The jurisdiction of the superior court is derived from the creating statutes and the common law and from its nature as a superior court, a court in which jurisdiction is generally presumed. This court will always be a court of competent jurisdiction under s. 24(1)  of the Charter  at first instance, that is to say, in cases where the issue arises in matters proceeding before it or where the proceeding originated in that court because of the absence of another forum with jurisdiction. The superior court will, of course, continue to have jurisdiction as a reviewing court where prerogative claims are advanced. The superior court jurisdiction will not displace that of other courts of limited jurisdiction. Considerations of convenience, economy and time will dictate that remedies under s. 24(1)  will ordinarily be sought in the courts where the issues arise. Save for cases originating and proceeding in the superior court, resort to it will be necessary only where prerogative relief is sought.

 

Procedure

 

267.            Problems have arisen in connection with the procedure to be followed relating to Charter  remedies and some confusion has existed in various courts. As has been said on many occasions, the Charter  was not enacted in a vacuum. It was created to form a part‑‑a very important part‑‑of the Canadian legal system and, accordingly, must fit into that system. It will be noted at once that s. 24(1)  gives no jurisdictional or procedural guide. This absence makes it clear that the procedures presently followed must be adapted and used for the accommodation of applications for relief under s. 24(1) .

 

Pre‑Trial Motions

 

268.            There will be occasions when it will be advisable to move for relief under s. 24(1)  of the Charter  before trial. In my view, however, it is by no means necessary to erect a new procedural scheme for this purpose. The pre‑trial motion and its near relative, the preliminary motion or preliminary objection, are well known in the law and may be employed in seeking s. 24(1)  relief once an indictment has been preferred. Pre‑trial motions may be made to quash the indictment for defect in substance or in form (s. 510 of the Code), to sever counts in an indictment (s. 520(3) of the Code), for particulars of the indictment (s. 516 of the Code), and to sever trials of co‑accused (s. 520(3) of the Code). The general practice of the courts has been to encourage such applications to be brought early so that preliminary matters may be disposed of at the outset, particularly when they are of such nature that they may affect the validity of the proceedings. This principle has been given statutory recognition in s. 529 of the Code, which provides in subs. (1) that an objection to a count of an indictment for a defect apparent on its face shall be taken by a motion to quash before plea and thereafter only by leave of the court. A similar provision relating to summary conviction matters was found in s. 732 of the Code. This subject is conveniently dealt with in Canadian Criminal Procedure (4th ed. 1984) by Salhany, at pp. 209‑10. In my view, no great difficulty will be encountered in including in the legal armory a pre‑trial motion for s. 24(1)  Charter  relief, subject to the existing practice for other motions. It may be that occasions will arise where a trial judge may find it necessary in dealing with a s. 24(1)  application to receive viva voce evidence on the question raised to enable him to dispose of the application. In my view, it would be within the discretionary power of a trial judge to follow this practice where, in his view, it was necessary. For the purpose of a pre‑trial motion for s. 24(1)  relief, the claimant may institute his motion at any time before plea and at any time after he has received or become entitled to receive the indictment or information. Where a court has not been ascertained for trial by committal, election, summons, preferment or arraignment, the application could be made to the superior court for prerogative relief.

 

Appeals

 

269.            Criminal appeals by a person convicted of an indictable offence are provided for in the Criminal Code  in s. 603  to the Court of Appeal, in ss. 618  and 620  to the Supreme Court of Canada, and in s. 719  in respect of the prerogative matters involving mandamus, certiorari or prohibition. It has long been settled law that there is no right of appeal in criminal matters, save as provided by statute, and the Code in s. 602  reinforces this proposition by providing that "No proceedings other than these authorized by this Part [Part XVIII‑‑Appeals, Indictable Offences] and Part XXIII [Extraordinary Remedies‑‑certiorari, habeas corpus, mandamus and prohibition] shall be taken by way of appeal in proceedings in respect of indictable offences."

 

270.            Again, it must be observed that the Charter  is silent on the question of appeals and the conclusion must therefore be that the existing appeal structure must be employed in the resolution of s. 24(1)  claims. Since the Charter  has conferred a right to seek a remedy under the provisions of s. 24(1)  and since claims for remedy will involve claims alleging the infringement of basic rights and fundamental freedoms, it is essential that an appellate procedure exist. There is no provision in the Code which provides a specific right to appeal against the granting, or the refusal, of a Charter  remedy under s. 24(1) , but appeals are provided for which involve questions of law and fact. The Charter , forming part of the fundamental law of Canada, is therefore covered and the refusal of a claim for Charter  relief will be appealable by a person aggrieved as a question of law, as will be the granting of such relief by the Crown. The appeal will follow the normal, established procedure. When the trial is completed the appeal may be taken against the decision or verdict reached and the alleged error in respect of the claim for Charter  relief will be a ground of appeal.

 

271.            The question has been raised as to whether there can be something in the nature of an interlocutory appeal in which a claimant for relief under s. 24(1)  of the Charter  may appeal immediately upon a refusal of his claim and before the trial is completed. It has long been a settled principle that all criminal appeals are statutory and that there should be no interlocutory appeals in criminal matters. This principle has been reinforced in our Criminal Code  (s. 602 , supra) prohibiting procedures on appeal beyond those authorized in the Code. It will be observed that interlocutory appeals are not authorized in the Code. The question was the subject of the judgment of the Ontario Court of Appeal in R. v. Morgentaler (1984), 41 C.R. (3d) 262. Brooke J.A. wrote the judgment of the court (Brooke, Lacourcière and Tarnopolsky JJ.A.) and concluded that interlocutory appeals in respect of refusals of Charter  remedies under s. 24(1)  were not open. In that case the accused, who were charged with conspiracy to procure an illegal abortion, before trial brought a motion to quash or stay the indictment, in the form of a claim that the proceedings were an abuse of process, alleging that s. 251 of the Code was contrary to the Charter  and the Canadian Bill of Rights and other non‑Charter  relief. The motion was refused by the trial judge and the accused appealed before the trial was completed. The Court of Appeal quashed the appeal. Brooke J.A. reviewed the authorities on the question and concluded that neither s. 24(1)  of the Charter  nor s. 52(1)  of the Constitution Act, 1982  conferred any right of appeal nor any jurisdiction in the Court of Appeal to hear one. He was clearly of the view that the pursuit of Charter  remedies must be in accordance with existing practice in Canadian courts. His view on this point is conveniently summarized, at p. 271, where he said:

 

                   The meaning to be ascribed to the phrase "court of competent jurisdiction" in s. 24(1)  of the Charter  has been the subject of consideration in a number of cases. The weight of authority is that s. 24(1)  does not create courts of competent jurisdiction, but merely vests additional powers in courts which are already found to be competent independently of the Charter . We agree with Mr. Doherty that a court is competent if it has jurisdiction, conferred by statute, over the person and the subject matter in question and, in addition, has authority to make the order sought. The court presided over by Parker A.C.J.H.C. was the court of competent jurisdiction to which the accused could apply under s. 24(1) . It has declared that the rights and freedoms guaranteed to the accused by the Charter  have not been infringed or denied by charging them under the section of the Criminal Code  upon which the count in the indictment was founded. Section 24(1)  does not purport to create a right of appeal or bestow appellate powers on this or any other court. Rather it authorizes those courts which have statutory appellate jurisdiction independent of the Charter  to exercise the remedial power in s. 24(1)  in appropriate cases when disposing of appeals properly brought before the court.

 

In my view, Brooke J.A. in this passage has correctly stated the law on this question.

 

272.            He also dealt with an argument raised by counsel, to the effect that s. 52(1)  of the Constitution Act, 1982  could provide a basis on which could be based a right of appeal and jurisdiction for the court to hear an appeal from an interlocutory motion where a constitutional issue was raised in a criminal case. This argument found support in the Manitoba case of Re Bird and Peebles and The Queen (1984), 12 C.C.C. (3d) 523 (C.A.) In that case persons charged before the trial court sought an order declaring two sections of the Criminal Code  to be invalid as infringing their Charter  rights. The motion was dismissed and the trial ordered to proceed. The accused persons appealed to the Manitoba Court of Appeal (Hall, Matas, Philp JJ.A.) The Court of Appeal would not accept that the court had no jurisdiction, but it decided that it would be inappropriate to hear the appeal. Matas J.A. said, at pp. 530‑31:

 

                   Accordingly, for the reasons set out above, I would not accept the Crown's submission that this court does not have jurisdiction to hear the appeal but would grant the Crown's motion to quash the appeal on the ground that it would not be appropriate to allow the appeal to go forward.

 

Brooke J.A. declined to agree with counsel that Matas J.A. must be taken to have concluded that s. 52(1)  of the Constitution Act, 1982  provides a right of appeal whenever a constitutional issue arises in a criminal case. He said (at pp. 273‑74):

 

It may be that the court was concerned that it should not foreclose the Constitution Act as a possible basic for jurisdiction if there were circumstances were [sic] there was no lower court which was a court of competent jurisdiction to which to apply for a remedy if rights and freedoms guaranteed by the Charter  were refused or denied. That is not this case. There is a right of appeal to the Court of Appeal and jurisdiction in this court to hear an appeal by these accused in the event that they are convicted and, of course, the constitutional issue may well form a ground of such appeal if the accused are so advised. Moreover, there are strong policy reasons against interrupting the trial process with appeals to the Court of Appeal. The Court of Appeal for Manitoba recognized this in Bird, supra. The policy reasons are well known and need not be repeated here. For example, see the judgment of MacDonald J.A. in R. v. Cranston (1983), 60 N.S.R. (2d) 269, 128 A.P.R. 269 (C.A.).

 

                   In the result, then, we agree with the submissions of Crown counsel that neither s. 24(1)  of the Charter  nor s. 52(1) of the Constitution Act of themselves give any right of appeal to this court or jurisdiction in this court to hear this appeal.

 

I am in respectful agreement with Brooke J.A. With deference to the view expressed by Matas J.A., in so far as it may be said to recognize a right in a person to appeal to the Court of Appeal on an interlocutory basis from a refusal by the trial court of a Charter  claim before the completion of the trial, and jurisdiction in the Court of Appeal to hear it, I would reject it. I find support for this view in Re Laurendeau and The Queen (1983), 9 C.C.C. (3d) 206 (Que. C.A.), and in the judgment of Craig J.A. in Re Ritter and The Queen (1984), 11 C.C.C. (3d) 123 (B.C.C.A.) Esson J.A., for the majority, considered a question not dealt with by Craig J.A. He said, at p. 136:

 

                   There is, however, another issue to be considered.... That question is whether a right of appeal has been conferred under provincial legislation which, in this province, is the Court of Appeal Act, 1982 (B.C.), c. 7.

 

He then said, after referring to In re Storgoff, [1945] S.C.R. 526, and Re Turangan and Chui and The Queen (1976), 32 C.C.C. (2d) 254n (B.C.C.A.), at p. 137:

 

The question is: do the Code's limitations upon rights of appeal apply to Charter  issues which are raised in respect of indictable offences?

 

273.            A similar argument was raised in the case of Morgentaler, supra, and dealt with in summary terms by Brooke J.A., at p. 274:

 

                   Finally, Mr. Manning contends that jurisdiction may be found in the Judicature Act, particularly ss. 2 and 28. On the hearing of the preliminary motion we rejected this submission because this appeal arises in the context of criminal preceedings and s. 602  of the Criminal Code  is exhaustive of appellate remedies with respect to the offence with which the accused are charged. The Judicature Act has no application in the circumstances: R. v. Forget (1982), 35 O.R. (2d) 238, 65 C.C.C. (2d) 373 at 374‑75 (Ont. C.A.).

 

I see no essential difference between the Ontario statute and the British Columbia Court of Appeal Act in this respect and I agree that the provisions of s. 602  of the Criminal Code , being exhaustive of appellate remedies with respect to criminal offences, would preclude the possibility of another appeal under any other statute. Legislation regarding criminal appeals falls clearly within the ambit of federal legislative authority. In my view, it is clear that the issue raised in the case at bar arose in a criminal case. Where an accused person invokes a provision of the Charter  in a criminal case, the question of its application and effect is clearly criminal law within federal jurisdiction.

 

274.            The argument has been raised that to adopt the view that an unsuccessful claimant for relief under s. 24(1)  of the Charter  must await the outcome of the trial to pursue his appeal is to introduce needless delay into the process of providing Charter  remedies. It is argued that these applications deal with fundamental rights and freedoms and accordingly should have priority. This argument rests, in my view, on two fallacies. The first is the assumption implicit in the argument that the claimant is entitled to a remedy. The second is that allowing an interlocutory appeal will get a remedy for him more quickly than the ordinary process of the court.

 

275.            It must be remembered that everyone who claims Charter  relief will not necessarily get what he seeks. There will be successful claims and unsuccessful claims, and in respect of each claim the question of breach of the right and entitlement to relief will have to be dealt with. This is true of all rights, Charter  and non‑Charter . If we recognize some priority arising out of an allegation of a breach of a Charter  right so that it is somehow lifted from the ordinary flow of cases and given a special right of immediate interlocutory appeal, I fear that the confusion which would result would far outweigh any benefit which successful individuals would achieve. Furthermore, there is no guarantee that an interlocutory appeal will accelerate the process. Rather, experience has shown that the interlocutory motion or appeal has all too frequently been the instrument of delay. In my view, it does not follow that interlocutory appeals will hasten the process. They are far more likely to delay the disposition of cases and would themselves tend to prolong the proceedings involved in the determination of Charter  infringement. The history of this case affords an example.

 

Jurisdiction

 

276.            It has been argued in academic journals that any breach of a Charter  right is jurisdictional in nature: see Morris Manning, at p. 478, in Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982  (1983), and Alan Gold, Annual Review of Criminal Law (1982), pp. 27‑28. A contrary view has been expressed in other writings: see J. C. Levy, "The Invocation of Remedies Under the Charter of Rights  and Freedoms: Some Procedural Considerations" (1983), 13 Man. L.J. 523, at pp. 539‑40, and E. G. Ewaschuk, "The Charter : An Overview and Remedies" (1982), 26 C.R. (3d) 54, at pp. 70‑71. As I understand the argument, it would be that where unreasonable delay is found to have occurred in the course of the prosecution of an offence, the court before which the proceeding is taken will thereby have been deprived of jurisdiction to deal further with the case and the prosecution would come to an end. I reject this view. Section 24(1)  of the Charter  has stated clearly that when a Charter  right is infringed or denied, a person may apply to a court of competent jurisdiction for such remedy as the court considers appropriate and just in the circumstances. It has not specified a remedy and has not excluded the court from further participation in the matter. It has authorized the giving of an appropriate remedy by the court. This is not language from which one can infer that whenever a right is infringed in a prosecution the result must be a loss of jurisdiction by the trial court. Rather, it is language vesting the court with power to correct the situation. If one accepts this jurisdictional argument, it would be to mandate a particular result in every case and to prevent the exercise of the discretion given in s. 24(1)  to give the appropriate remedy. In my view, the fact that a Charter  right has been infringed does not of itself give rise to jurisdictional error, and I see no basis for the characterization of some Charter  violations as jurisdictional while others are not.

 

277.            There will no doubt be cases where the claim for relief under s. 24(1)  of the Charter  will be based on an allegation of jurisdictional error in respect of which prerogative relief in the superior court could be available. The two avenues to seek relief, that is, to the court in which the issue arises for an appropriate remedy under s. 24(1) , or to the superior court for prerogative relief where the jurisdictional ground exist, will remain open but must be kept separate and applied according to circumstances. All Charter violations and infringements will not be jurisdictional. Remedies which may be ordered are not limited to prerogative remedy, that is, certiorari, prohibition and mandamus. These, of course, may be given where grounds for such relief, according to the law and practice which has grown up concerning them, are present. Otherwise, the remedy will be what the court considers appropriate and just under s. 24(1)  of the Charter .

 

Remedies

 

278.            What remedies are available when an application under s. 24(1)  of the Charter  succeeds? Section 24(1)  again is silent on the question. It merely provides that the appellant may obtain such remedy as the court considers "appropriate and just in the circumstances". It is difficult to imagine language which could give the court a wider and less fettered discretion. It is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre‑empt or cut down this wide discretion. No court may say, for example, that a stay of proceedings will always be appropriate in a given type of case. Although there will be cases where a trial judge may well conclude that a stay would be the appropriate remedy, the circumstances will be infinitely variable from case to case and the remedy will vary with the circumstances.

 

Disposition

 

279.            In the case at bar the claimant says that his trial has been unreasonably delayed. It was on this basis that he moved before the preliminary hearing magistrate at the commencement of the preliminary for relief under s. 24(1)  of the Charter . This motion was refused. The appellant then brought a motion before Osborne J. in the High Court of Ontario claiming prohibition and as well Charter  relief alleging delay and abuse of process. Osborne J. refused the motion. He found that there was no unreasonable delay. An appeal was taken to the Court of Appeal under s. 719  of the Criminal Code . This was dismissed by the Court of Appeal who found no error in the proceedings below. While the motion of the appellant included a claim for non‑prerogative relief under the Charter , the appeal under s. 719  of the Criminal Code  could only apply to the prerogative portion of the application. That is all that is before this Court. The dismissal by Osborne J. of the claim for prohibition and certiorari is sustainable because the preliminary hearing magistrate, having no jurisdiction to grant s. 24(1)  relief, could not be said to have exceeded his jurisdiction in refusing to do so. It follows then, in my opinion, that this appeal must be dismissed with the result that the matter must be returned to the provincial court for the completion of the preliminary hearing. It may well be that there has been unreasonable delay in the proceedings and, as a consequence, the claimant is entitled to relief on that basis. This is a matter for the trial judge. If he is committed for trial, he will be free to seek his remedy in that forum.

 

                   The following are the reasons delivered by

 

280.            Wilson J. (dissenting)‑‑I agree with my colleague Lamer J.'s treatment of the jurisdictional issues raised on this appeal. I also agree with him as to the general nature of the right conferred by s. 11 (b) of the Charter  and that it has been violated in this case.

 

281.            Nor do I disagree with my colleague that s. 11 (b) of the Charter  protects the liberty and security interests which an accused has under s. 7 . However, those interests are protected under s. 11 (b) in the specific context of the accused's right to be tried within a reasonable time. We are concerned in this case, therefore, only with an impairment of those interests which can be shown to flow from delay in bringing the appellant to trial. For this reason I cannot subscribe to my colleague's view that there is an irrebuttable presumption in favour of impairment of those interests from the moment the charge is laid and that this has the effect of relieving the appellant of any onus of proof of impairment under the section. There may, indeed, be an irrebuttable presumption in favour of prejudice flowing from the fact of an accused's being charged with a criminal offence but that is not protected by s. 11 (b) of the Charter . The prejudice arising from anxiety, stress and stigmatization by family and friends also exists where the accused is tried within a reasonable time. What the accused has to demonstrate under s. 11 (b), in my opinion, is that he has suffered an impairment of his liberty and security interests as a result of the Crown's failure to bring him to trial within a reasonable time, not as a result of the Crown's having charged him.

 

282.            I do not believe therefore that in approaching an alleged violation of s. 11 (b) it is appropriate to start time running, as it were, in the accused's favour from the moment the charge is laid. While the time between the laying of the charge and the trial starts to run with the laying of the charge, the point at which the delay becomes unreasonable and therefore unconstitutional is the point at which the accused's s. 11 (b) right is violated. All that precedes that point must be accepted as inherent in the nature of the process. We should not, in other words, turn the presumption of innocence into a presumption of Charter  violation arising from the mere fact of the charge alone. To do so is to deny one of the realities of the justice system, namely that it is not a perfect system and that persons who are subsequently found to be innocent will, in the interval, have suffered the ignominy of the process. The Charter  does not purport to protect us against that. What it does guarantee, however, is that a person charged with an offence will not have to suffer that ignominy for an unreasonable length of time before the charge against him is disposed of one way or the other. At some point what was theretofore lawful prejudice becomes unlawful and unconstitutional delay.

 

283.            Unlike my colleague I believe that one of the more significant forms of impairment which can flow from delay in bringing an accused to trial is its impact on the accused's ability to make full answer and defence to the charge. I agree with my colleague that the accused's right to a fair trial is protected by s. 11 (d) but again the context is somewhat different. What is at issue in the present case is not the fairness of his trial per se but the unreasonableness of the delay in providing it. The effect of the delay on the fairness of his trial is a relevant consideration in reasonableness but is not itself the primary source of the appellant's complaint. The accused could have argued, perhaps, that under s. 11 (d) he is now to be permanently presumed innocent because a fair trial is impossible. That route was probably open to him but the s. 11 (b) route seems to me to be more apposite to his current situation when his trial lies in the future and when the basis of his entire complaint is the right to be protected from unconstitutional delay.

 

284.            I agree with the appellant that one of the factors to be considered in deciding whether or not the delay is unreasonable under s. 11 (b) is whether the accused's ability to make full answer and defence to the charge has been impaired by it. This may be described as the legal as opposed to the psychological and sociological effect of the delay. The right to make full answer and defence has always been viewed as a cornerstone of the justice system and a delay which has the effect of eroding it cannot in any sense of the term be considered reasonable. I disagree with my colleague that this is purely a s. 11 (d) consideration and cannot be a factor under s. 11 (b). We cannot treat para. (a) to (i) as a number of watertight compartments. They represent a series of rights which any person charged with an offence has, but there is nothing to say that they are mutually exclusive. Quite the contrary. They draw life, as my colleague has been at pains to point out, from the s. 7  liberty and security interests which run through them like a common thread.

 

285.            My point of difference then with my colleague is a narrow one but, in my mind, a significant one. For the reasons given by my colleague there may be cases of delay which are unreasonable even although they have not impaired the accused's ability to make full answer and defence. I do not doubt this for a moment. Length of time itself may be the culprit for the psychological and sociological reasons my colleague has identified. But, by the same token, if delay has had the effect of impairing the accused's ability to defend the charge, and he can establish the necessary causal connection, I cannot accede to the proposition that this is irrelevant in the assessment of reasonableness. It seems to me that it may provide an alternate basis of violation of the accused's s. 11 (b) right.

 

286.            I agree with my colleague that the delay of nineteen months which is attributable to the Crown, ten months of it due to the Crown's admitted negligence, is unreasonable. I would dispose of the appeal as my colleague proposes.

 

                   The following are the reasons delivered by

 

287.            La Forest J.‑‑The facts and issues in this case fully appear in the opinions of my colleagues, McIntyre and Lamer JJ. and I, therefore, propose to set forth my own views on such of these as it appears necessary in the briefest possible compass.

 

288.            I agree with my colleagues that a preliminary hearing magistrate is not a "court of competent jurisdiction" within the meaning of s. 24(1)  of the Canadian Charter of Rights and Freedoms  so as to permit him to hear an application under that provision to determine whether an accused's right "to be tried within a reasonable time" guaranteed by s. 11 (b) of the Charter  has been violated. The task of the preliminary hearing magistrate under the Criminal Code  is by the Code limited in essence to determining whether, in his opinion, the evidence presented before him is or is not sufficient to commit the accused for trial; if it is, he is to commit the accused; otherwise, he must discharge him.

 

289.            I see no warrant in the Charter  for extending the ambit of the specific task assigned to the magistrate by the Code. From a practical standpoint, too, I would think this would unnecessarily complicate his task, require more evidence or at least a more thorough sifting of evidence than is required at a preliminary hearing, and in any event require the magistrate to look at the issues before him in a manner different from that contemplated by the Code. This complication of his task could well lead to the kind of delays for which an application under s. 24(1)  is intended to offer a cure.

 

290.            I would also add that I agree with McIntyre J. that the preliminary hearing magistrate has no jurisdiction to exclude evidence under s. 24(2)  of the Charter . While this power may seem similar to the magistrate's duty regarding admissibility of evidence, what is involved is the granting of a remedy under s. 24(2) . That remedy, it should be observed, is to be exercised "having regard to all the circumstances". Those circumstances may again require more evidence than is presented at the preliminary hearing. This evidence can be presented at trial.

 

291.            I also share the view that the trial judge is a court of competent jurisdiction for the purposes of s. 24(1)  of the Charter . Indeed, in many cases he will be in the best position to provide the appropriate remedy for delay in breach of s. 11 (b). At the conclusion of the trial, the trial judge will have the fullest account of the facts available and be able to accord such remedies as can reasonably be afforded under criminal law jurisdiction.

 

292.            I should perhaps say that I agree that civil remedies should await action in a civil court. Quite apart from division‑of‑powers problems that would arise from attempting to award damages and similar remedies in a criminal court, the fact is that as a practical matter, these are best dealt with in accordance with pleading and practice appropriate to civil matters.

 

293.            It should be obvious from the foregoing remarks that I am sympathetic to the view that Charter  remedies should, in general, be accorded within the normal procedural context in which an issue arises. I do not believe s. 24  of the Charter  requires the wholesale invention of a parallel system for the administration of Charter  rights over and above the machinery already available for the administration of justice.

 

294.            Nonetheless, it is the Charter  that governs, and if the ordinary procedures fail to meet the requirements of the Charter  fully, then a means must be found to give it life. In Ashby v. White (1703), 2 Ld. Raym. 938, 92 E.R. 126, at p. 136, Holt C.J. instructs us that "it is a vain thing to imagine a right without a remedy". The problem does not directly arise here, of course, because the Charter  by s. 24(1)  provides that a court of competent jurisdiction may provide such remedy as it considers appropriate and just in the circumstances. But there must at all times be a court to enforce this remedy. The notion that the remedy must fail or be ineffective for lack of a competent court within the confines of the ordinary procedures for the administration of criminal justice can no more be imagined than can the notion of a right without a remedy. While, therefore, the trial court will ordinarily be the appropriate court to grant the remedy, situations can arise where a trial court has not yet been set at the time when a remedy is required, or where a court is an inappropriate forum to seek a remedy because it is itself implicated in the breach of a constitutional right. In such cases, the competent court must be the superior court of the province in the exercise of its inherent jurisdiction. To this extent, I agree with Lamer J. on this issue.

 

295.            This reasoning applies to delay. Delay may occur because the police do not take adequate steps to secure the presence of an accused following a charge (see R. v. Richardson (1984), 56 N.B.R. (2d) 172), or because the prosecution is slow to bring him to trial. It may also occur during the conduct of the preliminary hearing. In these cases, there is, as yet, no trial judge. I am also doubtful that from committal onwards one can rely on pre‑trial motions to a judge other than a superior court judge to give effect to Charter  remedies. The existing remedies by way of pre‑ trial motion appear to be grounded in specific statutory powers. Superior court judges are the only judges with the inherent jurisdiction to grant other remedies.

 

296.            Similarly, if it is the trial court that has been dilatory, some other court must have jurisdiction to enforce the rights accorded by the Charter . Application to that court under those circumstances would obviously not be an effective remedy. So again a superior court must have jurisdiction. As I see it, though, that jurisdiction should only be exercised when it is necessary to do so in order to provide a remedy. Where another court is in a position to exercise an effective remedy, the jurisdiction of the superior court judge should not be exercised.

 

297.            Whatever judge exercises jurisdiction under s. 24(1)  of the Charter , be it the trial judge or a court of superior jurisdiction, I do not think its powers of redress for delay are limited to staying the prosecution. Nor do I see unreasonable delay as giving rise to a jurisdictional issue. Under s. 24(1), the power to afford a remedy for the breach of a Charter  right is in terms discretionary. A court of competent jurisdiction may grant such remedy as it considers appropriate and just in the circumstances. To categorize unreasonable delay as jurisdictional and to make a stay the only possible judicial response to it, one must not only rewrite s. 24(1) , but give the right in s. 11 (b) a pre‑eminence over other Charter  rights which, in my view, neither the language of the Charter  nor the accepted values of our society warrant. For example, a finding that a search or seizure is unreasonable, and therefore contrary to s. 8  (and, perhaps under certain circumstances, to s. 7  as well), does not necessarily result in a stay of proceedings. Rather, a court might, in accordance with s. 24(2)  of the Charter , refuse to permit the admission of evidence obtained as a result of such a search, a remedy that in my view would often, though not always, be the appropriate one. Exclusion of evidence, unlike a stay, does not completely abort the prosecution.

 

298.            I cannot, therefore, accept that the only remedy for unreasonable delay is a stay. I would have thought that in many cases, the most obvious remedy for delay would be to expedite the proceedings. Thus an order could be issued compelling whoever was causing the delay, whether the police, the prosecuting authorities, the preliminary hearing magistrate or the trial judge, to act with greater expedition. As well, if the accused were ultimately convicted, delay might be taken into account in sentencing, even in situations not otherwise considered in imposing sentence. Delay might also give rise to an award for damages in a subsequent civil action. The draconian remedy of a stay should be reserved for the more compelling cases. Such matters as the seriousness of the crime, the length and nature of the delay and other factors should be taken into account in fashioning a remedy. Section 24(1)  of the Charter  does not contemplate a single response. It provides rather for such remedy as may be appropriate and just in the circumstances.

 

299.            I am aware that the Supreme Court of the United States has held that for breach of the provision of the United States' Constitution providing for speedy trials, dismissal of an indictment is the only possible remedy; see Barker v. Wingoy 407 U.S. 514 (1972), at p. 522, and Strunk v. United States, 412 U.S. 434 (1973). The American approach, however, is not consistent with the language of s. 24  of the Charter . Moreover, the adoption of this drastic step as the sole remedy would in my view have the effect of making the courts seriously hesitate before adopting it in any given case. Certainly, as White J. noted in United States v. Ewell, 383 U.S. 116 (1966), at p. 121, over‑zealous application of this remedy would infringe "the societal interest in trying people accused of crime, rather than granting them immunization because of legal error". Whether or not for this reason, the courts in the United States have tended to minimize the scope of the right to a speedy trial; see Note, "The Lagging Right to a Speedy Trial," 51 Va. L. Rev. 1587 (1965), at p. 1587. "The result", so Professor Uviller of Columbia tells us, "is a right debilitated, its components askew"; see H. Richard Uviller, "Barker v. Wingo: Speedy Trial Gets a Fast Shuffle," 72 Colum. L. Rev. 1376 (1972), at p. 1376. In the words of Professor Amsterdam of Stanford, in the United States, "[v]arious institutional arrangements and forces at work within the criminal process have long tended to convert the right of every criminal defendant to have a speedy trial into a very different sort of right: the right of a few defendants, most egregiously denied a speedy trial, to have the criminal charges against them dismissed on that account."; see Anthony G. Amsterdam, "Speedy Criminal Trial: Rights and Remedies," 27 Stan. L. Rev. 525 (1975), at p. 525.

 

300.            Of the United States Supreme Court's conclusion that dismissal is the only possible remedy for the denial of a speedy trial, a position that is more assumed than defended by the court, Amsterdam has this to say, at pp. 534‑35:

 

                   On its face, this proposition is incredible. Anglo‑American law has long provided remedies for denial of a speedy trial other than dismissal of the prosecution with prejudice. State and lower federal courts enforcing sub‑constitutional speedy‑trial guarantees have frequently found other remedies appropriate; and both lower courts and the Supreme Court have enforced the sixth amendment by other means. Surely, the primary form of judicial relief against denial of a speedy trial should be to expedite the trial, not to abort it. Where expedition is impracticable for some reason, the Supreme Court's repeated recognition of the several distinct interests protected by a right to speedy trial suggests the propriety of fashioning various remedies responsive to the particular interest invaded in any particular case. If the sole wrong done by delay is "undue and oppressive incarceration prior to trial," the remedy ought to be release from pretrial confinement; if prolongation of the "anxiety" and other vicissitudes "accompanying public accusation" is sufficiently extensive, the remedy ought to be dismissal of the accusation without prejudice; and it is only when delay gives rise to "possibilities (of impairment of)...the ability of an accused to defend himself," or when a powerful sanction is needed to compel prosecutorial obedience to norms of speedy trial which judges cannot otherwise enforce, that dismissal of a prosecution with prejudice is warranted.

 

301.            While I am not, as at present advised, prepared to say that a stay should be granted only in the cases mentioned in this passage, I am as I noted earlier, in general agreement with this approach.

 

302.            I turn now to a discussion of the role that should be played by a judge in the position of Osborne J. to whom an application is made under s. 24(1)  for a remedy against unreasonable delay. The preliminary hearing magistrate, as I have indicated, was not a court of competent jurisdiction within the meaning of s. 24(1) , and accordingly Osborne J. as a superior court judge was the only court competent to grant a Charter  remedy. There must, as I also noted, at all times be a court of competent jurisdiction to whom resort can be had when an accused believes his constitutional right to be tried within a reasonable time has been breached. Osborne J. was, therefore, the court competent to hear and consider an application to deal with this issue.

 

303.            This brings me to the question of the proper exercise of discretion by a superior court judge who has deemed it necessary to intervene in these circumstances. I share the view of Lamer J. that as much as possible issues of unreasonable delay should be dealt with by the trial judge. This is consistent with the spirit of s. 24(1)  of the Charter , which contemplates that an appropriate remedy is to be moulded to fit the circumstances. Only at trial will those circumstances have been fully dissected and explored. The trial judge, after hearing all the evidence, will be in the best position to determine precisely what has happened, what prejudice the accused has suffered, and the extent to which he has himself contributed to the delay, remembering that delay will often be of benefit to the accused and used by him for that purpose. Much of the necessary information is none too clear in the present case. Moreover, it is at the trial stage that the full panoply of possible criminal remedies (including a reduction of sentence, for example) can be brought into play, so far as the power to redress any injury suffered by the accused is concerned.

 

304.            By and large, too, on an application such as that brought before Osborne J., the evidence is by way of affidavit, and is thus not as satisfactory as evidence at trial. If viva voce evidence is taken, this can itself increase delay. Generally, interventions by superior court judges in the ordinary course of the criminal process can give rise to serious delays of their own, particularly if appeals are permitted from such interventions. The present case is an apt illustration.

 

305.            In the exercise of his discretion, therefore, a superior court judge must keep the foregoing factors in mind. On the whole, his jurisdiction should be confined to attempting to prevent existing causes of delay and ongoing prejudice to an accused. For example, if the delay is in connection with the manner in which a preliminary hearing is being conducted, he can order more expeditious measures to be taken, keeping open the possibility of a stay should delay continue. If a person is incarcerated, he can have him liberated. Generally, however, a superior court judge on a s. 24(1)  application should, in my view, refrain from attempting to remedy delays that are not ongoing. The trial judge will be in a better position to deal with past delays when the case comes before him.

 

306.            I am not saying that a superior court judge, acting in the proper exercise of his discretion under s. 24(1)  ought never to stay a proceeding. It may be the only sanction open to him if measures he directs to expedite matters are not complied with. It may also be possible to imagine a case where an accused has been charged with a relatively minor offence and such serious delays have occurred, possibly including periods of incarceration, that it will be obvious that the only appropriate and just remedy dictated by the Charter  will be a stay. But generally, as I have said, the proper course for a superior court judge to take is to refrain from attempting to remedy past delays. The trial judge who ultimately hears the case will generally be far more cognizant of the facts and have at his disposal a wider array of possible remedies. He will be in a better position to respond to the obvious intention of the Charter  than an appropriate and just remedy be afforded having regard to the circumstances.

 

307.            Since I do not think a separate non‑Charter  jurisdictional question is involved in this case, which might have made certiorari or prohibition an appropriate remedy, I have confined my remarks to the s. 24  remedy. From such application, neither the Charter  nor the Criminal Code  makes any provision for appeal and I do not think it lies within the province of the courts to create one. It may well be, however, that there is an appeal to this Court with leave from the superior court as the court of final resort.

 

308.            I am of the view, then, that the matter should be returned to the preliminary hearing magistrate and that the question of unreasonable delay within the meaning of the Charter  should ultimately be dealt with by the trial judge if the accused is committed for trial. In dealing with this issue, the trial judge should not consider himself fettered by Osborne J.'s finding regarding unreasonableness or the Court of Appeal's dismissal of the appeal from his decision. The issue considered by Osborne J. was whether the delay constituted a jurisdictional ground giving rise to a remedy under prerogative writs, and the appeal to the Court of Appeal could only be from a decision on an application for such a writ. The issue before those courts was very different from one where it is sought to determine whether there was delay sufficient under s. 24(1)  to allow a court to fashion an appropriate and just remedy, a remedy that might well fall short of aborting the proceedings. The trial judge will be in a better position to determine this issue, particularly given the state of the record. Finally, I do not think it changes anything to categorize the remedy sought from Osborne J. as an application for a s. 24(1)  remedy because the remedy sought for and considered by Osborne J. was one seeking a stay because the delay was so unreasonable as to warrant the granting of that remedy.

 

309.            I am by no means sure how successful courts can be in remedying delay by means of Charter  remedies. There are many systemic problems the solution of which must be found elsewhere. Still, I think courts should not shirk on occasion from exercising a stay, even where the cause is systemic. However, I do not think it is the intention of the Charter  that courts should automatically allow persons guilty of serious criminal acts to go free simply because someone has caused delay that can be regarded as unreasonable. That approach has now worked in the United States. Courts have recoiled from using such a drastic remedy and so are often left with no remedy at all. As I mentioned, I am not sanguine that courts can, in the exercise of Charter  jurisdiction, do as much as one would wish to prevent delay. On the other hand, I do not see that we should denude ourselves of possible additional instruments that can be devised by an imaginative use of s. 24(1)  of the Charter .

 

310.            For these reasons, I agree with McIntyre J. that the appeal must be dismissed and the matter returned to the provincial court for completion of the preliminary inquiry.

 

Appeal dismissed, Dickson C.J. and Lamer and Wilson JJ. dissenting.

 

                   Solicitors for the appellant: Julius Melnitzer and D. Fletcher Dawson, London.

 

                   Solicitor for the respondent: The Ministry of the Attorney General for Ontario, Toronto.

 

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