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R. v. Conway, [1989] 1 S.C.R. 1659

 

Scott Conway                             Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

indexed as:  r. v. conway

 

File No.:  20877.

 

1988:  December 16; 1989:  June 22.

 

Present:  Dickson C.J. and Lamer, La Forest, L'Heureux‑Dubé and Sopinka JJ.

 

on appeal from the court of appeal for ontario

 

    Constitutional law -- Charter of Rights  -- Trial within a reasonable time -- Five‑year period between charge and commencement of third trial ‑‑ Whether accused's right to be tried within a reasonable time has been infringed -- Canadian Charter of Rights and Freedoms, s. 11 (b).

 

    Criminal law -- Abuse of process -- Crown seeking to try accused for a third time on same murder charge -- Five‑year period between charge and commencement of third trial -- Crown objecting to accused's re-election for a trial before a judge alone -- Crown not consenting to accused's plea to manslaughter -- Whether a third trial in these circumstances constitutes an abuse of process.

 

    Appellant was charged with first degree murder on August 29, 1982 and convicted of second degree murder in December 1983.  Thirteen months later, the Court of Appeal set aside the verdict and ordered a new trial.  The second trial was set to commence on January 7, 1986.  In December 1985, however, appellant's counsel was removed from the record and appellant was granted an adjournment to April 21, 1986, as he had been unable to retain new counsel.  The jury failed to reach a verdict at the second trial and a mistrial was declared.  The new counsel then informed the appellant that he could no longer represent him in proceedings held in Ottawa.  Appellant sought to obtain a change of venue to Toronto but the application was opposed by the Crown and dismissed in August 1986.  In the interim, the third trial had been set for September 22, 1986.  At that time, appellant was still without counsel and, despite the Crown's objection, the trial was adjourned to November 10, 1986.  Appellant found and ultimately retained a third counsel and, in order to accommodate counsel's schedule, the trial date was postponed to April 21, 1987.  On that date, the Crown objected to appellant's application to re‑elect to be tried before a judge alone.  The same issue was before the Court of Appeal and the trial judge adjourned the matter to await its decision.  At the onset of the third trial, on October 26, 1987, appellant entered a plea of not guilty on the charge of murder but guilty on the lesser included offence of manslaughter.  The plea was not accepted by the Crown because the appellant would not agree to a joint submission for a sentence of 15 years.  The appellant then brought an application to stay arguing that (1) holding a third trial in the circumstances would constitute an abuse of process and (2) his right to be tried within a reasonable time guaranteed by s. 11 (b) of the Canadian Charter of Rights and Freedoms  had been violated given the time elapsed since the beginning of the proceedings.  The trial judge held that appellant's s. 11 (b) right had been infringed and ordered a stay of proceedings.  The Court of Appeal set aside the order staying the proceedings and directed a new trial to proceed.

 

    Held (Sopinka J. dissenting):  The appeal should be dismissed.

 

    Per Dickson C.J. and La Forest and L'Heureux‑Dubé JJ.:  A trial judge has a discretion to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings.  While the doctrine of abuse of process is not limited to prosecutorial misconduct or improper motive, the prosecution in this case did not constitute an abuse of process.  The judge's power to stay proceedings may only be exercised in the clearest of cases. 

 

    The main purpose of s. 11 (b) of the Charter  is to minimize the adverse effect on the person charged resulting from the pending disposition of an unresolved criminal charge.  The focus of the protection is the impairment or prejudice arising from the delay in processing or disposing of the charges against an accused and not the impairment or prejudice arising from the fact that he has been charged.  The cut‑off point after which a delay becomes unreasonable must be determined by balancing a number of factors including, among the most important ones, the prejudice suffered by the accused, the waiver of time periods, the inherent time requirements and the limitations on institutional resources.  In deciding a s. 11 (b) claim, the correct approach is to evaluate the reasonableness of the overall lapse of time.  A piecemeal analysis is generally not appropriate.  As with other Charter  guarantees, the individual claiming an infringement of his rights must persuade the court that the circumstances fall within the scope of protection of the specific Charter  provisions.  Under s. 11(b), the scope of protection is demarcated by the reasonableness of the total lapse of time.  There is no reason to require as a rule that the onus shift from the accused to the Crown at the threshold of "prima facie unreasonability".

 

    Proceeding on the basis that s. 11 (b) of the Charter  extends to appellate proceedings, appellant's right to be tried within a reasonable time has not been infringed.  The total five‑year period resulted, for the most part, from the choices made by appellant in the conduct of his defence, as well as from the delays inherent in a trial, appeal and retrial on a murder charge.  Appellant unequivocally requested, caused and consented to the delays between the date initially set for the second trial and the onset of the third.  During that period, several adjournments were granted to accommodate appellant's need for legal representation.  While appellant had the right to be represented by counsel of choice, the delays incurred in so doing could not be invoked in this case in his s. 11 (b) claim.  The same was true of the considerable delays resulting from appellant's pre-trial motion to re-elect for a trial before a judge alone. For the purpose of assessing the reasonableness under s. 11 (b),  an accused, and the Crown as well, must bear the consequences of their tactical decisions in the conduct of the trial.  As regards prejudice, assuming that such prejudice is relevant in a claim made under s. 11 (b), there was no evidence in the record that appellant would be prevented from having a fair trial.  Balancing the delays, the prejudice to the appellant flowing from the passage of time, especially such passage of time which is not attributable to him, the nature and reasons for the delays, and the nature of the charge and other circumstances of the case, it could not be concluded that the overall lapse of time brings the appellant within the scope of s. 11 (b).

 

    Per Lamer J.:  Section 11 (b) of the Charter  gives an accused the right to be tried within a reasonable time.  The fundamental purpose of the section is to protect the rights set forth in s. 7 .  The concept of security of the person, in the context of s. 11 (b), is not restricted to physical integrity but encompasses protection against overlong subjection to the vexations and vicissitudes of a pending criminal accusation.  Actual impairment of an accused's security interest need not be proven to render s. 11 (b) operative.  An objective standard is the only realistic means through which the security interest of the accused may be protected under the section.  The impairment of the accused's defence is not a factor to be considered under s. 11 (b).  The accused's right to mount a full and fair defence is more properly related to the right to a fair trial under s. 11 (d) of the Charter .

 

    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 inherent impairment of the accused's interest as of the moment he is charged from the very fact of being prosecuted, such impairment becoming increasingly pronounced with the passage of time, against three other factors that may justify the delay, or continued impairment of the accused's interests:  (1) waiver of time periods; (2) time requirements inherent in the nature of the case, and (3) limitations to institutional resources.  The facts relevant to the waiver of delays and limitations to institutional resources, however, must be evaluated during the transitional period, which, in this case, ended May 14, 1987 (the date the judgment of this Court in Rahey was handed down), keeping in mind court practices on the part of counsel and of court officials.  Indeed, it would be inaccurate to give meaning or the same probative value to behaviour which occurred or court records which were held prior to that judgment against a standard whose parameters were unknown to all.  Finally, a finding that the delay involved is prima facie excessive is not a condition precedent to the inquiry into reasonableness of the delay.

 

    Here, appellant's s. 11 (b) right has not been infringed.  Most of the delay is easily explained by the fact that the appellant did not object to any of the additional delays and in fact requested many of them.  During the transitional period, where there is not an indication in the record of an objection by the accused or defence counsel, that silence should generally be construed as acquiescence in the delay.  There is therefore waiver as regards those periods of time extending to May 14, 1987.  The delays requested by the appellant during the same period, either when represented or not, constituted also a waiver of time.  The appellant waived them clearly and unequivocally with full knowledge of his rights and the courts carried out their duty to ensure to their satisfaction that his waiver of time was clear, unequivocal and informed.  Concerning the period extending from May 14, 1987 to October 26, 1987, the delays were also justified.

 

    Per Sopinka J. (dissenting):  In the circumstances of this case, the Crown's actions in prosecuting the case did not justify a stay of proceedings on the basis of an abuse of process.

 

    Section 11 (b) of the Charter  extends the procedural right to be tried within a reasonable time to appellate proceedings.  The word "tried" must be interpreted in light of the intention of the provision.  The purpose of s. 11 (b) is to minimize the prejudice to an accused as a result of a criminal charge by ensuring that proceedings are completed within a reasonable time.  Given that the prejudice to the accused will persist until all appellate proceedings have finished, s. 11 (b) would be a shallow and illusory right if it were interpreted to apply only to the initial trial.

 

    Section 11 (b) is premised in part upon a desire to ensure that an accused's liberty and security are not unduly violated as a result of a failure to complete criminal proceedings within a reasonable time.  An accused alleging a violation of s. 11 (b) must thus persuade the court that prima facie the delay is unreasonable.  The Crown must then justify the delay on the basis of any special features or circumstances of the case.  The Crown can also justify the delay on the basis of conduct of the accused or his counsel, including waiver of delays.  The Crown cannot, however, justify long periods of systemic delay even if such delays are beyond the control of the prosecution.  The accused's right to counsel is part of the system and the failure or inability on the part of the accused to obtain counsel cannot justify unreasonable delay unless such failure or inability is attributable to the accused.  A failure by the Crown to displace the prima facie case does not necessarily end the matter.  In assessing the reasonableness of the delay, prejudice to the accused's liberty and security interest resulting from the delay must be considered.  Prejudice to the accused's ability to make a full answer and defence may also be relevant.

 

    In this case, the appellant's right to be tried within a reasonable time has been infringed.  The delay was prima facie unreasonable and the Crown has failed to justify or satisfactorily explain substantial segments of the five‑year period.  In particular, the appellant could not be held solely responsible for the delays between the second trial in May 1986 and the third trial in October 1987 and he did not unequivocally waive his right to a prompt trial.  The Crown's objection to the appellant's application for a change of venue, in light of appellant's well known difficulties in retaining counsel, contributed to the delay.  The appellant was also reasonably diligent in his attempt to find a lawyer but the Crown's insistence on unrealistically short adjournments made it difficult for him to obtain counsel on such short notice and hence caused new delays.  Further, the appellant's request to re‑elect to appear before a judge alone was reasonable given his earlier experience with jury trials and the Crown's refusal to consent contributed to the mounting delay.  The appellant also demonstrated his sincerity in wanting to conclude the proceedings by offering to plead guilty to manslaughter.  The appellant has demonstrated prejudice to his liberty and security interests and it is now highly unlikely that a fair trial is possible.  A stay of proceedings should be ordered.

 

Cases Cited

 

By L'Heureux‑Dubé J.

 

    Applied:  R. v. Jewitt, [1985] 2 S.C.R. 128; referred to:  R. v. Rahey, [1987] 1 S.C.R. 588; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Young (1984), 40 C.R. (3d) 289; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Keyowski, [1988] 1 S.C.R. 657; R. v. Turpin (1987), 36 C.C.C. (3d) 289, aff'd [1989] 1 S.C.R. 1296; R. v. Pentiluk (1974), 28 C.R.N.S. 324; United States v. Loud Hawk, 474 U.S. 302 (1986); United States v. MacDonald, 456 U.S. 1 (1982); Beavers v. Haubert, 198 U.S. 77 (1905); R. v. Ross, [1989] 1 S.C.R. 3; Clarkson v. The Queen, [1986] 1 S.C.R. 383; United States v. Tateo, 377 U.S. 463 (1964).

 

By Lamer J.

 

    Referred to:  Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Turpin, [1989] 1 S.C.R. 1296, aff'g (1987), 36 C.C.C. (3d) 289.

 

By Sopinka J. (dissenting)

 

    R. v. Rahey, [1987] 1 S.C.R. 588; United States v. Loud Hawk, 474 U.S. 302 (1986); Eur. Court H. R., Wemhoff case, judgment of June 27, 1968, Series A No. 7; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Barker v. Wingo, 407 U.S. 514 (1972); R. v. Antoine (1983), 5 C.C.C. (3d) 97; R. v. Askov (1987), 37 C.C.C. (3d) 289; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Turpin (1987), 36 C.C.C. (3d) 289, aff'd [1989] 1 S.C.R. 1296.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 7 , 11 (b), 24 .

 

Criminal Code, R.S.C. 1970, c. C‑34, ss. 429, 430 [rep. & subs. 1985, c. 19, s. 64], 465(1)(b) [am. c. 2 (2nd Supp.), s. 6; am. 1972, c. 13, s. 38; rep. & subs. 1974‑75‑76, c. 93, s. 58], 534(4) [rep. & subs. 1974‑75‑76, c. 105, s. 7; rep. & subs. 1985, c. 19, s. 125].

 

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, Arts. 5(3), 6(1).

 

    APPEAL from a judgment of the Ontario Court of Appeal (1988), 26 O.A.C. 389, allowing the Crown's appeal from a judgment of Smith J. (1987), 3 W.C.B. (2d) 218, ordering a stay of proceedings.  Appeal dismissed, Sopinka J. dissenting.

 

    Alan D. Gold and Donald B. Bayne, for the appellant.

 

    Brian J. Gover and Curt M. Flanagan, for the respondent.

 

//L'Heureux-Dubé J.//

 

    The judgment of Dickson C.J. and La Forest and L'Heureux-Dubé JJ. was delivered by

 

    L'HEUREUX-DUBÉ J. -- This appeal raises the question whether the appellant Conway should stand trial for a third time on a charge of murder.  The facts are set out in ample detail by my colleague Justice Sopinka.  While I agree with him and with the courts below that these facts do not disclose an abuse of process justifying a stay of proceedings, I cannot share his opinion that s. 11 (b) of the Canadian Charter of Rights and Freedoms  was infringed in the circumstances of the present case.

 

Abuse of Process

 

    In considering the submission based on abuse of process at trial, Smith J. directed himself as follows:

 

[T]he residual discretion in a Court to stay proceedings must not only be sparingly used, it must also be based on the prosecution being oppressive or vexatious, or follow upon the violation of the principles of fundamental justice and fair play or, again, there must be some other form of misconduct on the part of the authorities or some ulterior motive.

 

    He found that there was no evidence to indicate that the prosecution had been "anything but fair and competent".  He then went on to consider the main element in the appellant's claim, namely, that, in the circumstances, an abuse of process resulted from the Crown's objection to the appellant's re-election to be tried by a judge without a jury, and from the Crown's refusal to accept a plea of guilty of manslaughter in the absence of agreement on a joint submission for a sentence of fifteen years.  Smith J. did not find the Crown's position oppressive.  He commented as follows on the insistence that there be a joint submission on sentencing:

 

    The Crown ought not to be taken to task for doing that.  The Courts should encourage pre-trial discussions which have become much more frequent and numerous in recent years to the obvious benefit of the public.  Such discussions are on their way to becoming completely institutionalized, at any rate.  I feel compelled to say, though, that sentencing is for the courts and joint submissions, as is well understood by both Crown and Defence, are never binding upon the Court.

 

    The Court of Appeal took a similar stand on this issue: (1988), 26 O.A.C. 389.  In a unanimous decision, the Court (Cory J.A., as he then was, and Grange and McKinlay JJ.A.) rejected the appellant's submission that the Crown's requirement amounted to an abuse of process (at p. 395):

 

So far as the Crown was concerned, the aspect of sentence was inextricably bound up with the acceptance of the plea.  There was no duty or obligation upon the Crown to accept the plea and the court should not impose such an obligation.

 

    As well, the Court of Appeal rejected the contention based on the Crown's objection to the re-election before a judge without a jury, holding properly that "[t]he Crown could reasonably and properly determine that the issue should properly be determined by a jury as the representatives of the community" (p. 394).

 

    I am in agreement with these findings in the courts below and would only add the following remarks.

 

    A trial judge has discretion to stay proceedings in order to remedy an abuse of the court's process.  This Court affirmed the discretion "where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings" (R. v. Jewitt, [1985] 2 S.C.R. 128, at pp. 136-37, borrowing from R. v. Young (1984), 40 C.R. (3d) 289 (Ont. C.A.))  The judge's power may be exercised only in the "clearest of cases" (Jewitt, supra, at p. 137).

 

    Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge.  The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court.  The doctrine is one of the safeguards designed to ensure "that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society" (Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 689, per Lamer J.)  It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function.  Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.

 

    Stays for abuse of process are not limited to cases where there is evidence of prosecutorial misconduct.  In delivering the reasons of the Court in R. v. Keyowski, [1988] 1 S.C.R. 657, Wilson J. made it clear that all relevant factors, including, but not restricted to, bad faith on the part of the Crown, are to be considered (at p. 659):

 

To define "oppressive" as requiring misconduct or an improper motive would, in my view, unduly restrict the operation of the doctrine.  In this case, for example, where there is no suggestion of misconduct, such a definition would prevent any limit being placed on the number of trials that could take place.  Prosecutorial misconduct and improper motivation are but two of many factors to be taken into account when a court is called upon to consider whether or not in a particular case the Crown's exercise of its discretion to re-lay the indictment amounts to an abuse of process.

 

    While Wilson J. appears to contemplate that a sufficient number of trials may alone render the prosecution "oppressive", she suggests later in her reasons that the threshold is higher than two inconclusive trials (at p. 660):

 

A third trial may, indeed, stretch the limits of the community's sense of fair play but does not of itself exceed them.

 

    In the present appeal, the evidence supports no suggestion of prosecutorial misconduct or improper motive.  As well, in light of the comments in Keyowski with respect to the number of trials, little weight can attach to the fact that the Crown is attempting to try the appellant a third time.  Does the Crown's stand with respect to the re-election and the plea tip the scales in favour of prosecutorial oppression?  Under ss. 429 and 430 of the Criminal Code, R.S.C. 1970, c. C-34, as they stood at the time material to this appeal, "an accused charged with murder anywhere in Canada except Alberta had no choice but to be tried by a superior court of criminal jurisdiction consisting of a judge of that court together with a jury" (R. v. Turpin (1987), 36 C.C.C. (3d) 289 (Ont. C.A.), at p. 293, appeal dismissed, [1989] 1 S.C.R. 1296).  Proceeding on the footing that the applicable provisions of the Code were valid, the Crown objected to the proposed re-election on the ground that any such re-election would have been contrary to ss. 429  and 430  of the Criminal Code .  Such conduct does not in my view take the Crown's adversarial position too far.  The Crown was entitled to conduct the prosecution on the basis that the applicable dispositions of the Criminal Code  were constitutionally valid.

 

    In addition, s. 534(4)  of the Criminal Code  expressly recognizes the Crown's option to refuse a plea of guilty to an offence other than the offence charged:

 

                                   534. . . .

 

    (4)  Notwithstanding any other provision of this Act, where an accused . . . pleads not guilty of the offence charged but guilty of any other offence arising out of the same transaction, whether or not it is an included offence, the Court may, with the consent of the prosecutor, accept such plea of guilty and, if such plea is accepted, the court shall find the accused . . . not guilty of the offence charged and find him guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in the record of the court.  [Emphasis added.]

 

    The requirement of prosecutorial consent is very strict and a plea of guilty which is not accepted by the prosecution is a "nullity" (R. v. Pentiluk (1974), 28 C.R.N.S. 324 (Ont. C.A.), at p. 328, reasons of the Court delivered by Martin J.A.):

 

Where the accused pleads not guilty to the offence charged but guilty to the included offence, and the plea of guilty to the included offence is not accepted, the only plea that has been made is one of not guilty.  The plea of guilty to the included offence is not in accordance with the provisions of s. 534(6) [s. 534(4)  in R.S.C. 1970, c. C-34] and is a nullity.

 

    To allow pleas of guilty to lesser offences to be recorded without the consent of the Crown would be to negate the very premises of the administration of criminal justice.  There can be no deterrence of crime nor any reinforcement of fundamental social values if a person charged with committing a particular offence is convicted and sentenced with respect to another offence of that person's choice.  That is why the requirement of consent under s. 534(4)  of the Criminal Code  is so strict.  Nevertheless, that provision furnishes some tools for tailoring the generally cumbersome system of criminal justice to the particular needs of individual cases.  It makes room for a rational exercise by the Crown of its discretionary power, having regard to the interests of society and of the accused in each particular case.

 

    These are some of the considerations which explain why the Crown has a discretion to accept pleas of guilty to lesser offences.  I do not believe that this discretion shields the Crown from the application of the doctrine of abuse of process.  There may be some cases in which the Crown is found to exercise this discretion unreasonably or oppressively.   The Court of Appeal implicitly contemplated such cases when it wrote that "[t]he proper exercise of a Crown discretion cannot amount to an abuse of process" (p. 394).  In view of the rationale underlying this discretion, however, one would expect such cases to be exceptional.  The present appeal is not one of those exceptional cases. The position of the Crown with respect to the plea has been consistent throughout the proceedings.  There has been no abrupt change of position or volte-face, nor did the Crown unfairly renege on expectations it had generated in the appellant.

 

    For these reasons, to hold a third trial in the circumstances would not in my view "violate those fundamental principles of justice which underlie the community's sense of fair play and decency" nor would it constitute an "abuse of a court's process through oppressive and vexatious proceedings".  The present case is not one of the "clearest of cases" to which the Chief Justice referred in Jewitt, supra.

 

Right to be Tried Within a Reasonable Time

 

    I now turn to the question whether the appellant's right to be tried within a reasonable time under s. 11 (b) of the Charter  was infringed.  At the outset, counsel for the Crown conceded that "the period of approximately five years between the Appellant's arrest and the commencement of his third trial was prima facie excessive and, as such, it warranted examination by the learned trial judge".  This admission assumes that the protection afforded by s. 11 (b) extends until the final adjudication of the charge.  The Crown made no submissions to this Court on the question of whether this protection stops after the person charged has been tried once within a reasonable time.  In R. v. Rahey, [1987] 1 S.C.R. 588, there were some comments suggesting that the application of s. 11 (b) to further proceedings such as appeals and retrials flows from the purpose of the guaranteed right.  This is consistent with the views of the Supreme Court of the United States that the speedy trial guarantee extends to delays "occasioned by an unduly long appellate process" (United States v. Loud Hawk, 474 U.S. 302 (1986), at p. 312).  Lamer J. (the Chief Justice concurring) stated that the computation "must continue until the end of the saga, all of which must be within a reasonable time" (Rahey, supra, at p. 611).  La Forest J. (McIntyre J. concurring) remarked that the word "tried" used in s. 11 (b) "means "tried" in the sense of "adjudicated" and thus clearly encompasses the conduct of a judge in rendering a decision" (p. 632).  The parties argued this appeal on a footing consistent with the above views expressed in Rahey.  Assuming without deciding that these views support the position adopted by the parties in this appeal, I am disposed to proceed on this basis.

 

Section 11 (b) of the Charter 

 

    Section 11 (b) of the Charter  states:

 

   11.  Any person charged with an offence has the right

 

                                . . .

 

(b)  to be tried within a reasonable time;

   11.  Tout inculpé a le droit:

 

                              . . .

 

b) d'être jugé dans un délai raisonnable;

 

 

    In the opinion of the Supreme Court of the United States, the speedy trial guarantee in the American Bill of Rights "is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges" (United States v. MacDonald, 456 U.S. 1 (1982), at p. 8, adopted in Loud Hawk, supra, at p. 311).  These words very aptly describe the main purpose for the right to be tried within a reasonable time under s. 11 (b) of the Charter , namely, to minimize the adverse effect on the person charged resulting from the pending disposition of an unresolved criminal charge.  The focus of the protection is "the impairment or prejudice arising from the delay in processing or disposing of the charges against an accused and not the impairment or prejudice arising from the fact that he has been charged" (Rahey, supra, at p. 624, per Wilson J.)   The right recognizes that, with the passage of time, subjection to a criminal trial gives rise to restrictions on liberty, inconveniences and pressures detrimental to the mental and physical health of the individual.

 

    The protection afforded by s. 11 (b) of the Charter  is not expressed in absolute terms.  That provision implicitly allows for a reasonable exposure to the very dangers which are ultimately sought to be minimized.  Some measure of impairment of the protected interests may validly result from the prosecution of persons charged.  This in effect accommodates the important community interest of preventing crime through the conviction of persons guilty of a criminal offence.  For the Supreme Court of the United States, the right to a speedy trial "is necessarily relative.  It is consistent with delays and depends upon circumstances.  It secures rights to a defendant.  It does not preclude the rights of public justice" (Beavers v. Haubert, 198 U.S. 77 (1905), at p. 87).

 

    Accordingly, the cut-off point after which a delay becomes unreasonable must be determined by balancing a number of factors.  A balancing approach was favoured by this Court in Rahey, although not all concurring members of the Court necessarily agreed on how the balancing was to be effected nor on what were the specific factors to be considered.  I doubt there can ever be an exhaustive and unanimous list of factors, but among the most relevant ones considered by the courts generally, and in particular, by this Court in Rahey, are: prejudice suffered by the accused, waiver of time periods, inherent time requirements and limitations on institutional resources.  Certainly the prejudice suffered by the accused is an important consideration.  While some degree of impairment may necessarily result from the mere passage of time, in my view, greater weight in the overall assessment of reasonableness should attach to impairment resulting from delays not attributable to the person charged.

 

    Waiver involves a consideration of whether any delays were requested, caused or consented to by the person charged.  Such delays as a rule do not weigh meaningfully in favour of the unreasonableness of the overall time period and "should normally be excluded from consideration when assessing reasonableness" (Rahey, supra, at p. 612, per Lamer J.)  In effect, when delays are caused, requested or consented to by an accused, it may generally be assumed that the accused benefits from the resulting protraction of the proceedings, although the ultimate decision will of course have to be made having regard to all the circumstances in each particular case.  This is not to say that an accused will necessarily be at fault for contributing to the protraction of the proceedings.  An accused has the right to make a full answer and defense and, to this end, to choose the manner in which to exercise this right in accordance with the law.  Neither for that matter will blame be imputed to the Crown or the judicial system when a claim under s. 11 (b) succeeds.  The Crown is free to use its prosecutorial discretion as it seems fit, provided that it does not conduct the prosecution in an abusive manner.  We are not here concerned with fault but with the reasonableness of the overall delays in bringing an accused to justice.

 

    Also relevant in the balancing test is a consideration of the "time requirements inherent in the nature of the case" and of any "limitations to institutional resources" (Rahey, supra, at p. 608, per Lamer J.)  The first of these factors is concerned with an estimation of the total time which would be required to process the charge, given, among others, the complexity and the nature of the case.  In assessing the reasonableness under s. 11 (b) of the Charter , "one must overlook the lapse of time inherent in the case, together with any resulting inconvenience to the accused" (Rahey, supra, at p. 634, per La Forest J.)  The second element makes some allowance for delays which may have been caused by any limitations on the resources of the judicial system.

 

    In deciding a claim made under s. 11 (b) of the Charter , the correct approach is in my view to evaluate the reasonableness of the overall lapse of time.  A piecemeal analysis is generally not appropriate.  In a case where each individual period, taken in isolation from the others, may constitute a reasonable delay, the total period may nevertheless be unreasonable for the purpose of s. 11 (b).  The case of Rahey illustrates the point.  While each adjournment initiated by the judge was for a short period, the accumulation of all nineteen adjournments over the span of eleven months was held to infringe s. 11 (b).  However, nothing prevents a court from focussing on specific time periods which may be significant in the overall assessment, as going to the weight to give to specific delays, as opposed to their reasonableness.

 

    In balancing the relevant factors, I cannot subscribe to the two-step onus requirement suggested by my colleague Sopinka J.  As I understand his views, once the person charged has satisfied the court that the total time is "prima facie unreasonable", the onus then shifts to the Crown to justify the delay.  However, as with other Charter  guarantees, the individual claiming an infringement of his or her rights must persuade the court that the circumstances fall within the scope of protection of the specific Charter   provision.   Under s. 11(b) of the Charter , the scope of protection is demarcated by the reasonableness of the total lapse of time.  It may be that a de facto shift of the burden of proof occurs in the minds of individual judges in the overall assessment of reasonableness.  In this connection, Lamer J. remarked in Mills, supra, at pp. 942-43:

 

    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.  [Emphasis added.]

 

    Unlike Sopinka J., I see no reason of principle or policy to enshrine in a rule such a de facto shift or "reference point", especially at a threshold admittedly as ambiguous as "prima facie unreasonability".  Some elements relevant to the assessment can best be established by the person charged.  For instance, if prejudice is an issue, then the person charged is best suited to establish that element.  As remarked earlier, prejudice resulting from delay requested, caused or consented to by the person charged may be weighed differently from prejudice resulting from delay originating elsewhere.  Accordingly, the courts might expect the person charged to give a prima facie account of the causes for the delays.  As well, one would expect the person charged, and not the Crown, to properly inform the court as to what could have been the shortest possible delays in view of the available institutional resources and as to what should be the best frame of reference with which to compare the delays incurred in that person's case.  Given the importance of the facts in individual cases where an unreasonable interval of time is alleged, I am of the view that a more flexible or functional approach is appropriate.

 

    In light of this general framework, I now propose to consider the facts with a view to assessing the reasonableness of the overall lapse of time in the present case.  Since my assessment of the facts as they relate to a breach of s. 11 (b) of the Charter  differs substantially from that of my colleague Sopinka J., it is necessary for me to consider them in some detail.  I hasten to point out that while a consideration of the facts may be necessary in the course of a determination whether the right to be tried within a reasonable time was breached, that question is one of law in the present case.  In this connection, I would adopt the following remarks of the Court of Appeal (at p. 393):

 

    In the case before us, there are no findings as to credibility and there are no facts in dispute.  Upon the same facts which were before the trial judge, we cannot agree with his conclusion of law.

 

 

Assessment of Reasonableness

 

    By way of preliminary remark, I find that the Crown's actions show an overall and sustained concern to proceed as quickly as possible.  In his oral pleading before this Court, counsel for the appellant himself emphasized the Crown's insistence on close trial dates.  The Crown never asked for an adjournment nor brought any interlocutory proceedings.  It repeatedly objected to adjournments requested by the appellant.  On the other hand, an examination of the proceedings suggests that the appellant adopted a course of conduct not always consistent with an assertion of his right to be tried quickly.  On several occasions in these proceedings the appellant was not represented by counsel when he appeared on dates set for trial.  This caused a number of adjournments to be granted, as the courts may have been reluctant to proceed on a charge of murder while the appellant did not have the benefit of counsel.  The reasons for these adjournments play an important, albeit not necessarily conclusive, role in solving the question at hand.

 

    The first such incident occurred in November 1985.  The appellant's second trial was set in June 1985 to proceed before Osborne J. on January 7, 1986.  But in November 1985, Mr. Shore, who was counsel at the first trial and still counsel of record, brought an application to be removed from the record.  The application, after being refused once, was allowed on the ground that it had been made clear to the court by the appellant that he did not wish to be represented by Mr. Shore anymore.  On the January date scheduled for the second trial, the appellant explained why he appeared without the benefit of counsel:

 

    Brian Greenspan is willing to be retained.  It is just a matter of when he can be available and when the court will be available.  As I said back in December -- actually it was in November.  It was in Assignment Court on November 15th, I believe it was, and at that time the Crown was aware that I was attempting to have Mr. Shore taken off the record and Mr. Greenspan put on the record because at that time he had agreed to take the case.  [Emphasis added.]

 

    The appellant preferred to be represented by Mr. Greenspan.  In granting the appellant's request for an adjournment, Osborne J., who had previously allowed Mr. Shore's application to be removed from the record, said:

 

    Mr. Conway appeared at an Assignment Court in June of 1985.  At that time this date for trial was set.  Some time between June and November 1985 Mr. Conway or his father decided it would be appropriate Mr. Greenspan be retained.  Mr. Greenspan has appeared for Mr. Conway before the Court of Appeal.  Further to that, Mr. Conway's trial counsel, Mr. Shore, asked to be removed from the record.  I exceeded [sic] to that request upon receiving confirmation that Mr. Conway did not wish to be represented by Mr. Shore.  As I indicated at that time, there is a difference between permitting a solicitor to be removed from the record and forcing an accused to be represented by counsel not of his choosing.  [Emphasis added.]

 

    Consequently, it was the appellant's late-in-the-day choice of counsel which caused the removal of Mr. Shore from the record one month prior to the second trial and which brought about the adjournment to April 21, 1986.

 

    There is a second period of time, from May 1986 to November 1986, during which the appellant was not successful in retaining a particular counsel.  After the second trial, on May 1, Mr. Greenspan indicated to the appellant that he could not represent him anymore in proceedings held in Ottawa.  As an appearance was scheduled in Assignment Court at the end of the month to set the date of the third trial, there was an immediate need for counsel. Nevertheless, the appellant took the position that efforts should be made to move the proceedings to Toronto, where Mr. Greenspan perhaps could be retained, before finding and retaining counsel able to represent him in Ottawa.  This explains why Mr. Greenspan was instructed to bring an application for a change of venue.  If the application was successful, he could be retained by the appellant.  Otherwise, the appellant would then look for and retain another counsel.  The trial judge found as a fact that the decision to make the application was taken "[i]n the three-week interval that intervened between May 26 and June 16, 1986".  The application was heard and dismissed on August 8, and, as a result, the appellant was still not represented at the end of the summer.  In the June appearance in Assignment Court, where the date of September 22, 1986 was set for the trial, Mr. Shore, who spoke for (but did not represent) the appellant, explained:

 

    If the trial is going to take place in Ottawa, the counsel will no doubt be different than if the trial is going to take place in Toronto or in Kingston or in Sudbury.  So, let's find out where the trial is going to take place.  Mr. Greenspan is prepared to bring the application [for change of venue] in July.  Once the locale is decided the appropriate counsel can be chosen by Mr. Conway.  [Emphasis added.]

 

    In the context of an application for a stay under s. 11 (b) of the Charter , this "wait-and-see" position adopted by the appellant is anything but an assertion of his right to be tried quickly.  It is more akin to the assertion of an unyielding desire to be represented by a particular counsel.  At this juncture, I wish to add that the delays incurred by the appellant in securing legal aid might have been significant in the overall assessment had the record disclosed that such financial assistance had been initially sought prior to the scheduled appearance in Assignment Court on May 26.  Difficulties in obtaining legal aid did not prevent the appellant from instructing Mr. Greenspan to file a motion for change of venue.

 

    While an accused, in his dealings with the judicial process, benefits from the right to counsel under s. 10 (b) of the Charter , this Court remarked in  R. v. Ross, [1989] 1 S.C.R. 3, that the right to retain counsel has to be exercised with reasonable diligence in light of the circumstances.  Delivering the reasons of the majority of the Court, with all members of the Court concurring on this particular point, Lamer J. wrote (at p. 11):  "[A]ccused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer."

 

    The issue under s. 11 (b) in the present instance is not whether the appellant had the right to be represented by a counsel of his choice:  he had that right (Ross, supra).  Rather, the issue is whether, having incurred considerable delays in so doing, the appellant can successfully invoke such delays in his claim that his right to be tried within a reasonable time has been infringed.  In my view, he cannot.  The adjournment of nearly four months granted on January 7, 1986, was brought about by the appellant's decision to change counsel one month prior to a trial date set some seven months earlier.  It must have been patently obvious to everyone concerned at the time that this change in position would jeopardize holding the trial as scheduled.  Indeed, when the appellant appeared unrepresented on January 7, Osborne J. felt he had no choice but to grant the adjournment requested by the appellant since, in his view, to proceed on a charge of murder with an unrepresented accused might result in invalidating the proceedings.  With respect to the events of May 1986, after the second trial, as an appearance in Assignment Court was scheduled at the end of the month, there was a short-term need for counsel.  The appellant chose to hold-out and attempt to move the proceedings to another city in order to accommodate his desire to be represented by Mr. Greenspan, before even considering alternative choices for counsel available in the Ottawa region.  Yet, there was a serious possibility that the application for a change of venue would not be granted.  There was also a virtual certainty that the application would not be decided for a number of months.

 

    The course of conduct adopted by the appellant is all the more fraught with consequence by reason of warnings given to him when he appeared unrepresented at dates set for his trial.  For instance, at the conclusion of the January 1986 appearance, Osborne J. explained to the appellant the urgency of his need for legal representation:

 

                            HIS LORDSHIP: . . .

 

    Mr. Conway, would you stand up for a minute.  Let there be no misunderstanding about this.  You have a problem.  The problem focuses on your present circumstances which leave you unrepresented.  I want to do what is reasonable, and I emphasize the word "reasonable" and give you time to secure counsel.  You have until April 21st, 1986.  I find it hard to believe that you will not be able to acquire competent counsel from Ottawa or from outside Ottawa by that time.  You are on bail for circumstances which I know nothing about.  You have complete flexibility in obtaining counsel.  To put it as bluntly as I can, if you do not obtain counsel by April 21st, that is your problem.  Subject to the views of the then presiding trial judge the trial will proceed at that time.  We cannot let the matter drag on any further.  It is as simple as that.  I ask you one question.  Do you understand what I have said?

 

                            THE ACCUSED:  Yes.

 

    HIS LORDSHIP:  Further to that, I would start now with or without the assistance of your family and I would suggest you first determine whether Mr. Greenspan is available as of April 21st. If he is not, immediately commence looking for some other counsel.  Whether Mr. Shore will see fit to help you with those endeavors is entirely up to him.  [Emphasis added.]

 

    This warning was reiterated by Watt J. at the conclusion of the September 1986 appearance, where once again the appellant had appeared unrepresented on a trial date set in the previous month of June:

 

    HIS LORDSHIP:  Well, Mr. Conway, this particular matter has dragged on long enough.  You are going to have to do one of two things, either get a lawyer or go it alone.  I think Mr. Morin's suggestion that if anyone were to walk into his office, he would want some time to prepare the case is one that is obviously reasonable.  I don't really think that his suggestion of the length of time is unreasonable.  But I am telling you right now, whether any of what my brother judges have said before has sunk in or not, that when I fix a date for this trial it is going ahead and it is going ahead whether or nor you have a lawyer.  Whether or not you get a lawyer is entirely due to your own efforts.  If you are not prepared to expend those efforts to get [a] lawyer to assist him as you can in the preparation of the case, you had better be content to go your third trial by yourself [sic].  Do you understand that?  [Emphasis added.]

 

    THE ACCUSED:  Yes.

 

    After January 7, 1986, and most assuredly since September 22, 1986, the appellant was well aware of the possible consequences of his failure to secure counsel.  It had been made clear to him that an uncompromising insistence on retaining specific counsel could result in his having to undergo a trial with the assistance of no counsel at all.

 

    On September 22, 1986, being the date set for the third trial, as the appellant was still unrepresented, Watt J. granted the adjournment requested by the appellant and rescheduled the trial to commence on November 10.  Further adjournments were requested by the appellant later in the fall of 1986, on October 2, and again on November 4.  The appellant had found counsel, Mr. Bayne, who expressed his availability to represent him, but could not take his case before the following spring.  Speaking for (but not representing) the appellant, in making the November 4 application for a remand of the trial date, Mr. Bayne explained that he was starting a murder trial in January and could not be ready before April.  He added that in the circumstances of the case it would not be unreasonable to adjourn until April:

 

    I point out that between the first and the second trials there is in excess of two years and even after the Court of Appeal ordered the new trial in 1985 this trial did not take place before fifteen months after and so in terms of chronology this request would not be an unreasonable delay between the second and third trial and frankly an accused person needs, simply in ordinary circumstances, there is a need of time to catch his breath between trials.  [Emphasis added.]

 

    The expression of a need to catch one's breath during six months is hardly an assertion of the right to be tried quickly.  This is all the more true in light of the fact that, to paraphrase Mr. Bayne, the appellant had already benefitted from six months to "catch his breath".  As well, the statement that this six-month delay "in terms of chronology" would not be an unreasonable delay between the second and third trial" suggests an acquiescence in the reasonableness of all delays incurred thus far.  As noted in the Court of Appeal (at p. 392):

 

    Significantly Mr. Bayne, when he made this request for an adjournment, stated that it would not result in an unreasonable delay in the proceedings and that the respondent needed a breathing spell between the second and third trial.

 

    It is to be noted that this comment appears to contradict the allegation that the respondent was actively seeking to have a speedy trial of the charge.

 

    In dealing with the request for an adjournment made by Mr. Bayne on November 4, 1986, the Crown and the court could not have been more accommodating to the accused.  While objecting to the request for an adjournment, the Crown agreed not to proceed until the end of a trial also scheduled to begin on November 17.  The adjournment was refused and the trial date of November 10 was left "to stand".  On December 4, the parties appeared before Watt J. for a direction as to the commencement date.  The trial co-ordinator had informed the solicitors of record that the date of April 21, 1987 had been set for the third trial.  It appears that this date had been set at the request of the Chief Justice of the Supreme Court of Ontario, himself petitioned to do so by Mr. Greenspan.  In the December 4 appearance, the Crown objected to this postponement of the trial date, while Mr. Bayne once again took the position that "[t]he earliest reasonable commencement date would be April" for the third trial.  In confirming the date of April 21, 1987 for the third trial, Watt J. said:

 

 

    There can be little doubt that this case has taken an inordinate amount of time to come to trial.  The harsh reality is, however, that in the event that an earlier trial date is fixed than that suggested, the accused will go unrepresented upon a third trial for second degree murder.  The likelihood of appellate reversal and the consequent trauma of yet another, a fourth trial, is of no little significance.

 

    I cannot adhere to the view that the Crown can be said to have caused these delays, nor can I attribute them to so-called systemic delays.  The postponement of the trial date from September 22, 1986 to April 21, 1987 in effect served to accommodate the schedule of the first counsel found by the appellant since May 1, 1986 and to allow the appellant to prepare fully his defense for the third trial.  In this connection, the record before this Court contains affidavits signed by seven criminal lawyers from the Ottawa region.  Six of them were approached by Mr. Bayne between October 1, 1986 and October 31, 1986 who inquired whether they would be available to represent the appellant at his November 10, 1986 trial date.  All six answered that they could not, due to the preparation time required for such a case and to prior professional commitments.  One of the six also attested having been approached by the appellant on August 8, 1986, with respect to the trial then scheduled for September 22.  The seventh lawyer was approached by the appellant himself "in mid-September of 1986" and was asked if he was available to represent the appellant "on a second degree murder trial to begin within the next six to eight weeks".  He turned the appellant down for the same reasons given by the others.  Some of these lawyers were approached three weeks or less before the date set for trial.  These affidavits show that the appellant began looking for an alternative choice of counsel only after the application for a change of venue was dismissed, in mid-August of 1986, some four months after being initially committed to Assignment Court to set a date for his third trial.  The affidavits also establish that a more serious attempt to retain counsel was made in the month of October, although then any possibility of success was even slimmer given the time required to prepare the case.  This evidence only shows that the appellant waited until the last moment to seek legal representation and temporarily found himself trapped in a vicious circle.  The net result was that the third trial was ultimately postponed until April 21, 1987 to accommodate the appellant's need for legal representation.

 

    At the onset of the third trial to be held before Callon J., on April 21, 1987, the appellant informed the court that he would eventually be bringing a motion to stay based on abuse of process.  He then told the court that the issue of abuse of process was pending before this Court in the Keyowski case.  Mr. Bayne further informed the court he would be making an application re-electing to be tried before a judge sitting without a jury.  He informed Callon J. that the issue whether a person accused of murder had a constitutional right to be tried without a jury was to be heard in mid-May by the Ontario Court of Appeal in the case of Turpin.  Mr. Bayne added that he acted as counsel in that case.  There was discussion between Mr. Bayne, the Crown counsel and the court to the effect that the Court of Appeal might very well reserve judgment for a few months on an issue of this importance.  Ultimately, Callon J. adjourned the matter "as a necessity" to Assignment Court on June 1, 1987, in an attempt to benefit from the views of the higher courts on the two issues before him.  He said:

 

    Putting it positively, it is appropriate to indicate that the trial has been adjourned as a necessity, and certainly with some reluctance on my part, because of a very important legal issue to be determined by the superior courts, namely, the Ontario Appeal Court and the Supreme Court of Canada and if this court were to proceed on issues that were at variance with those decisions, then the accused would be exposed to a fourth trial . . . .

 

    On June 1 the date for the commencement of the third trial was set for October 26, 1987, at which time the appellant offered a plea of guilty to the lesser offence of manslaughter.  This plea was refused by the Crown who insisted on proceeding with a trial on the charge of murder.  Mr. Bayne then brought the motion to stay which gave rise to the present proceedings.

 

    At his appearance on April 21, 1987, being the previous date set for the third trial, it was actually foreseen by Mr. Bayne that bringing a pre-trial motion which would steer the proceedings into the midst of a heated Charter debate on the right not to be tried by a jury was likely to postpone the trial for a very considerable time.  As a matter of fact, there was an appeal to this Court from the decision of the Court of Appeal in Turpin in which judgment was released only recently.  The purpose of the pre-trial motion was to avoid any risk of a second hung jury.  That may be a legitimate purpose.  But, in retrospect, does the possibility of a second hung jury outweigh two additional years of subjection to a pending trial?  That is the course upon which the appellant chose to embark.  It is hardly consistent with his claim today that such delays were unreasonable.  For the purposes of the assessment of reasonableness under s. 11 (b) of the Charter , an accused, and for that matter, the Crown as well, must bear the consequences of their tactical decisions in the conduct of the trial.

 

    In Rahey, Lamer J. stated (at p. 612):

 

If an accused requests, causes or consents to a delay, it should normally be excluded from consideration when assessing reasonableness, but such waiver must be clear, unequivocal and informed.

 

    Although technically the decisions and conduct of the appellant may amount to something less than waiver, in my view, he in fact unequivocally requested, caused and consented to the delays between the date initially set for the second trial and the onset of the third.  In considering the issue of "waiver" in the context of s. 11 (b), it must be remembered that it is not the right itself which is being waived but merely the inclusion of specific periods in the overall assessment of reasonableness.  Crucial to the exclusion of a time period is "the accused's awareness of the consequences" (Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 394) of his decisions causing delays to be incurred.  Any waiver is "dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard" (pp. 394-95).  I have no doubt that in the present case the words of Osborne J. and Watt J. made the appellant sufficiently aware of the limit to which the judicial process could stretch in order to accommodate his choice of counsel.  The appellant understood the risks of having to undergo a trial by himself, yet on January 7, September 22 and November 10, 1986, he appeared unrepresented as a result of the less than diligent exercise of his right to counsel.  This course of conduct is in my view tantamount to a waiver of the time periods discussed above in the assessment of the reasonableness of the overall delay.  At minimum, these intervals of time should not be used by the appellant to support his claim that the charges laid against him have been standing for an unreasonable period of time.  They were brought about by the accused through an exercise of his right to counsel severely lacking in diligence and in full awareness of the possible risks associated with lack of legal representation.  These considerations go to the weight to be attributed to the periods from January 7 to April 21, 1986 as well as the period between the end of second trial (May 1, 1986) and the scheduled commencement of the third (October 26, 1987) in the assessment of the reasonableness of the overall delay.

 

    Much of the delay that remains is in my view attributable to the time requirements and the risks involved in the disposition of a charge of murder.  Early on in these proceedings, there was a period of almost sixteen months between the charge and the conviction and sentence resulting from the first trial.  The preliminary hearing commenced in January 1983, roughly five months after the laying of the charge.  In the appellant's words, the two court days originally scheduled for the hearing "were not sufficient".  The hearing was consequently adjourned and concluded the following May.  The record does not disclose whether this circumstance results from the unavailability of court rooms, the unavailability of key witnesses or some other reason.  While in their appearance before this Court neither the Crown nor the appellant accounted for this delay, it is relevant to the weight of this four-month period that the judge presiding at the preliminary hearing is not empowered to adjourn for more than eight clear days unless it is the case that "the accused, whether or not he is in custody, and the prosecutor consent to the proposed adjournment" (s. 465(1) (b) of the Criminal Code ).  At the conclusion of the hearing, the appellant was committed to trial.  He then brought an application to quash the committal.  During the period from June 21 to December 2, 1983, at which time the application was denied, the appellant requested and obtained adjournments of his trial in order to allow the application to proceed.  I would not take this period into account in assessing the overall reasonableness.  The trial commenced on December 6, 1983 and a verdict of guilty of second degree murder was soon thereafter returned by the jury, that is, on December 15, 1983.

 

    The appeal that followed occupied the next thirteen months.  This appeal was successful and a new trial was ordered.  While this additional delay is not incurred in all cases, it is not unusual for a person convicted of murder to avail himself of the right to appeal conferred by the Criminal Code .  The right to appeal against a conviction is one of the safeguards in the criminal justice system designed to ensure that persons are not found guilty of an offence unless the case of the prosecution is established beyond a reasonable doubt in full accordance with the law.  The efficacy of this safeguard is maximized when the Court of Appeal exercises its discretion to direct that a verdict of acquittal be entered in the record.  In such a case, it is certain that no subsequent proceedings can be taken upon the same charge.  But on appeal there is also the possibility of a new trial.  This possibility is a concession to the societal interest in prosecuting persons charged with an offence.  The option of granting a complete immunization because of a legal error at trial may discourage courts from exercising their power of review.  In this sense, the possibility of holding a new trial "enhances the probability that appellate courts will be vigilant to strike down previous convictions that are tainted with reversible error" (United States v. Tateo, 377 U.S. 463 (1964), at p. 466).  These are but some of the considerations which come into play when weighing the delay incurred in appellate review, assuming as I have for the purpose of this opinion that s. 11 (b) of the Charter  may apply although the person charged was initially tried within a reasonable time.

 

    The Court of Appeal recorded the appellant's acquiescence in the reasonableness of the delays involved in the disposition of his appeal (at p. 391):

 

    It should be noted that the respondent conceded that the appeal proceeded expeditiously and that there was no undue delay occasioned by either party in those appeal proceedings.

 

    Likewise, no serious objection could be taken to the interval of less than one month occupied by the second trial.

 

    It is finally necessary to consider the prejudice suffered by the appellant.  The appellant was imprisoned some thirteen months while the appeal was pending and he was granted interim judicial release subject to bail conditions before and after the successful appeal.

 

    I consider it necessary to make two brief remarks in connection with the assessment of prejudice in the present case.  First, the trial judge emphasized the deterioration of the situation of the appellant's family.  He noted that the family has "expended in excess of $130 000 in legal fees" and that the "family home has had to be sold".   As well, he described in detail the detrimental effect that the events since August 1982 have had on the psychological and physical health of all members of the family.  Smith J. also considered the effect the events had on the victim's family and concluded as follows:

 

The accused and his family are devastated as any close-knit family would be.  I do not, in saying this, make light of the devastation visited upon the family of the victim, Mr. Warren Leach, as a result of his untimely demise in this fashion . . . .

 

    In this connection, appellant made a number of submissions and adduced evidence "as to the impact of the proceedings on individual members of the Appellant's family".

 

    While the problems experienced by the appellant's family may have affected him to some extent, the plight of the Conway family per se is of no help in determining the matter at hand.  Nor for that matter is the situation of the victim's family.  Understandably, these tragic events have caused much grief and sorrow to be felt by a number of friends, family relations and other persons.  However, it would most certainly strain the integrity of the judicial process if, as part of a determination under s. 11 (b) of the Charter , courts were to engage in a balancing of the financial and emotional loss incurred by the respective families of the person charged and the victim.  The right to a trial within a reasonable time seeks to prevent the overlong subjection of the person charged to the pressures inherent to a pending criminal accusation.  The prejudice suffered by that person alone is relevant to the inquiry.

 

    Second, assuming for the present purposes only that such prejudice is relevant in a claim made under s. 11 (b) of the Charter , there is in my view no evidence suggesting that it is no longer possible for the appellant to benefit from a fair trial before his peers.  The unanimous Court of Appeal wrote (at p. 394):  "There is not, in our opinion, any special prejudice to the accused (in the sense of preventing a fair trial)".  There is no evidence that a witness for the defense is no longer available or can no longer testify, nor can there be any suggestion that no impartial jury can be found, should that be the route chosen for the third trial.  Though by reason of the time elapsed the witnesses' recollection may be weaker, I see no reason to presume, as my colleague Sopinka J., that "the witnesses will have little independent recollection of the events" (p. 000).  The presence of transcripts from the first two trials would in my view contribute to ensuring the fairness of the trial in that all the evidence which is helpful to the defense has been preserved.

 

    On the whole I do not find it possible on the facts before us to hold that the delays incurred in the course of the proceedings against the appellant are unreasonable within the meaning of s. 11 (b) of the Charter .  I am satisfied that the total five-year period is sufficiently explained by the delays inherent in a trial on a charge of murder, appeal and retrial of that charge, as well as by delays which were brought about by the appellant in his time-consuming attempts at securing particular counsel as outlined above.  Balancing the delays which occurred in the present case, the prejudice to the appellant flowing from the passage of time, especially such passage of time which is not attributable to him, the nature and reasons for the delays, and the nature of the charge and other circumstances of the case, I cannot conclude that the overall lapse of time brings the appellant within the scope of s. 11 (b).

 

    Commenting on the appellant's course of conduct in the exercise of his right to counsel, the Court of Appeal said (at pp. 392-93):

 

It seems to be clear that the respondent did not, at any time between the 1st of May, 1986 and the 21st of April, 1987, assert a desire to have his trial brought on in a prompt and speedy manner. It is perfectly reasonable and understandable that he should be anxious to retain able and experienced counsel.  However, it is scarcely reasonable to hold the system at fault for the delays occasioned by the respondent's efforts to retain counsel and to provide such counsel with the time required to prepare for and fit the trial into his or her schedule.  Those delays should not be attributable to the Crown or be deemed to be "systemic" delays.  Particularly this is so as the respondent was at all relevant times represented by counsel who did not at any time object to the various adjournments and in fact actively sought them.

 

    It would be, in my view, ironic indeed that the prosecution should be reproached for its sustained insistence in bringing an accused to trial "within a reasonable time", while an accused who chooses to trade delays for a tactical advantage should, for that reason, succeed in invoking his s. 11 (b) Charter  right.  At the end of the day in this particular case, a greater priority was attached by the appellant to the retaining of specific counsel and to re-electing to be tried without a jury than to a speedier adjudication.  Such conduct stops the 11(b) clock from ticking in favour of the person charged.

 

    To conclude otherwise would open the door not only to abuses but to unfortunate results as well, such as the possibility of systematic refusals by trial judges to grant adjournments, thereby possibly resulting in the denial of legitimate requests by an accused.  Such inflexible policies could not be in the best interest of the administration of justice, just as such results could not be within the intent and purpose of the right of an accused to be tried within a reasonable time.

 

Disposition of the Appeal

 

    In agreement with a unanimous Court of Appeal, I would accordingly dismiss the appeal.  This however does not end the matter since the appellant submits that, should his appeal be unsuccessful, this Court should enter a verdict of manslaughter and remand the matter for sentencing.  Assuming without deciding that this Court has the discretion to make such an order, I would nevertheless deny it.  To grant this alternative relief would amount to allowing the appellant to circumvent the requirement of prosecutorial consent prescribed by s. 534(4) of the Code.  As the Crown has not changed its position with respect to the plea of guilty of manslaughter, it would still be considered a nullity and could not be entered in the record if the appellant offered it at trial.

 

//Lamer J.//

 

    The following are the reasons delivered by

 

    LAMER J. -- The facts of this case are fully set out in the reasons of my colleague, Justice Sopinka, and I will not repeat them here.

 

    This appeal raises the same issue as that in Mills v. The Queen, [1986] 1 S.C.R. 863, and R. v. Rahey, [1987] 1 S.C.R. 588, that is, whether or not the accused's rights under s. 11 (b) have been violated.

 

    In my reasons for judgment in Mills, I gave my views as to what is the nature of the right protected by that section as well as to what should be the proper test to be followed when the court of competent jurisdiction is faced with an alleged violation of the right to a trial within a reasonable delay.

 

    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 once again that this right is, in its nature, an individual right and has no collective rights dimension albeit society surely has an interest in the prompt and effective prosecution of criminal cases.  The section is concerned with ensuring respect for the interests of the individual and the societal interest finds no expression in s. 11 (b) though, evidently, incidental satisfaction (see  R. v. Turpin, [1989] 1 S.C.R. 1296, at p. 1311, judgment delivered on May 4, 1989).  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.

 

    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.  However, 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 but rather encompasses protection against overlong subjection to the vexations and vicissitudes of a pending criminal prosecution, including stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors.  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.

 

    It can be inferred from that premise that the role of the courts will be to consider whether the delay is reasonable or not.  Unfortunately, reasonableness is an elusive concept which cannot be juridically defined with precision and certainty.  Yet, there is an advantage to be found when dealing with time as reasonableness can be determined with the help of the precision surrounding the happening of certain events, such as arraignment, the preliminary inquiry, the trial and the time elapsed between.

 

    In Mills and Rahey, I sketched out what I think should be the test for determining whether the delay was reasonable or not.  If it is obvious that the liberty of the accused is limited from the day he is charged, as regards the security of the person, we are dealing largely with the impairment of mental well-being, a matter which can only be established with considerable difficulty at considerable cost.  The proper approach, in my view, is to recognize that prejudice underlies the right.  Since the actual impairment need not 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.  In that respect, whether the accused's ability to mount a full and fair defence is or is not impaired is not relevant to a determination of whether there has elapsed an unreasonable period of time, as that goes to the fairness of the trial and is more properly related to the right to a fair trial than to the right to be tried within a reasonable time.  Indeed, too speedy a trial might sometimes violate an accused's right to a fair trial, such as when little or no time to prepare is given.  In my view, our test of reasonableness involves a balancing of the inherent impairment of the accused's interest as of the moment he is charged from the very fact of being prosecuted, such impairment becoming increasingly pronounced with the passage of time, against three other factors that may justify the delay, or continued impairment of the accused's interests: (1) waiver of time periods; (2) time requirements inherent in the nature of the case, and (3) limitations to institutional resources.  Consequently, we are not concerned with the conduct of the parties; if there is an explanation for this delay then there should not be a violation of s. 11 (b) giving rise to the minimal appropriate remedy, a stay of proceedings.

 

    In Mills, I also elaborated on a secondary but still fundamental issue arising out of a potential violation of s. 11 (b), whether or not the time which has elapsed prior to the coming into force of the Charter  may properly be taken into consideration in assessing the reasonableness of delay, and if so, whether such delay should receive the same weight as delay subsequent to the coming into force of the Charter .  As that case was the first one 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 had remained uncertain for the period prior to the rendering of that judgment.

 

    I was of the view that, given this uncertainty and the terminative nature of the remedy for a violation of the section, namely a stay of proceedings, a transitional approach is appropriate, and indeed necessary, to enable the courts and the governments to properly discharge their burden under s. 11 (b).

 

    However, this is not to say that different criteria ought to apply during the transitional period, that is, the period prior to the rendering of that 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 meaning or the same probative value to behaviour which occurred or court records which were held prior to that judgment against a standard the parameters of which were unknown to all.  Consequently, facts relevant to two of the criteria of reasonableness which have been elaborated in that judgment, waiver of delay and limitations to institutional resources, must be evaluated during the transitional period keeping in mind court practices on the part of counsel and of court officials.  Indeed, as regards waiver, while I said (at p. 929):

 

    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.

 

I also added that:

 

    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.

 

I also went on to say that silence by the accused or defence counsel in the face of requests for delay by the Crown, does not necessarily, during the transitional period, carry the same consequences as after this period.  Where there is not an 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 meaning to behaviour and court records, when those were not intended at the time.  This is not to say that the law pertaining to the question of waiver was uncertain prior to that case.  Nevertheless, statements in our courts, at the time of remands or postponements, were not made and records thereof were not kept with s. 24  applications based on s. 11 (b) alleged violations in mind.  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.  I finally added that under no circumstances are such transitional measures to apply to persons who are charged subsequently to the rendering of that judgment.

 

    However, the majority did not rule on the issue relating to the waiver of delay in circumstances such as those of this case  until this Court's judgment in Rahey.  Applying the above principles to this case, I am of the view that the transitional period cannot be said to have ended before May 14, 1987, that is when Rahey was handed down. From the day he was charged until May 14, 1987, the delays cannot be given the same consequences as after this period, from May 14 to October 26, 1987.

 

    Before turning to the instant case, I only want to say once again that there is no magic moment beyond which a violation will be deemed to have occurred and that this Court should refrain from legislating one.  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.  I hasten to add that a finding that the delay involved is prima facie excessive is not a condition precedent to the inquiry into reasonableness of the delay, i.e., to the weighing and balancing of the criteria elaborated above.  It is simply an approximate point at which the courts may properly look to the Crown to explain additional delay.  Such a period, of course, is no more than a reference point.  It may well be that a balancing of the 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.  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 accused the judge will call upon to explain the case being unusual.

 

    With this in mind, we can now apply the criteria to the facts in this case.  The appellant was charged on August 29, 1982, and it is only on October 26, 1987, that the third trial resumed.  In between, many events have slowed down the proceedings and the delay that occurred, if unexplained, is surely prima facie unreasonable.  This is conceded by the Crown.  A careful review of the proceedings throughout confirms that most of it is easily explained by the fact that the appellant did not object to any of the additional delays and did in fact ask for many of them.  As I mentioned earlier, silence by the accused or defence counsel in the face of remands and postponements, cannot, during the transitional period, be given the same consequences as after this period.  Where there is not an indication in the record of an objection by the accused or defence counsel, that silence should generally be construed as acquiescence in the delay.  There is therefore waiver as regards those periods of time extending to May 14, 1987, which all happened prior to the rendering of Rahey.  As regards delays requested by the accused, I do not think that one could dispute that the accused, either when represented or not, waived them clearly and unequivocally with full knowledge of the rights and that the courts carried out their duty to ensure to their satisfaction that the waiver of time by the accused was clear, unequivocal, and informed as regards the right and the effect waiver would have on the right.  Concerning the period extending from May 14, 1987 to October 26, 1987, I just want to recall that on April 21, 1987, the third trial began before Callon J. and on this occasion, the accused asked the trial judge to re-elect to be tried by a judge sitting without a jury.  As the question whether the accused had a right to make such a re-election was to be argued in the Ontario Court of Appeal in R. v. Turpin in May 1987, and as Callon J. did not want to risk making a decision that was inconsistent with the view of the Court of Appeal, the matter was adjourned until June 1, 1987 for assignment court, when trial for murder was set for October 26, 1987.  The court fixed an objective and realistic time period for the preparation of the type of case which is at bar, taking into account the charge, the number of witnesses, the complexity and the history of the case.  It is my opinion that there is a justification to the delay.

 

    The appellant has not, in my view, established a violation of his s. 11 (b) right.  I should add that, had the events taken place after our decision in Rahey, I would not consider the very long period of time elapsed from the end of the second trial until the scheduled start of the third trial, almost eighteen months, as having been acquiesced to as a result of lack of objection, and would agree with my brother Sopinka in finding a violation of s. 11 (b) of the Charter .  However, applying the transitional period approach, I am of the opinion that the appellant's silence during most of that period should be construed as acquiescence in the delay as there is no indication in the record of an objection by the accused or defense counsel.  Consequently, I would dismiss this appeal.

 

//Sopinka J.//

 

    The following are the reasons delivered by

 

    SOPINKA J. (dissenting) -- This appeal is from the Ontario Court of Appeal (1988), 26 O.A.C. 389, which allowed the appeal from the decision of Smith J. of the High Court of Ontario.  Pursuant to s. 11 (b) of the Canadian Charter of Rights and Freedoms , Smith J. ordered a stay of proceedings by reason of the unreasonable delay in resolving a criminal charge of murder against the appellant.

 

    In October of 1987, more than five years after the appellant was charged with murder, a third trial was scheduled to commence.  At that time the appellant brought a motion for a stay of proceedings based on an alleged violation of s. 11 (b) of the Charter  and abuse of process.  The facts and procedural background are obviously central to the determination of this appeal and must therefore be considered in some detail.

 

Facts

 

    On August 29, 1982, during the course of a bonfire party, a fight occurred between the appellant Conway and one Warren Leach.  The appellant was then 21 years of age.  There had been a history of animosity between the appellant and Leach.  Leach was stabbed sixteen times and died as a result of these injuries.  Later that same day, the appellant was arrested on a charge of first degree murder in connection with Leach's death.

 

    The appellant was detained in custody until September 13, 1982, at which time he was granted judicial interim release.  The preliminary hearing was held in part on January 12 and 13, 1983, and was continued and concluded four months later on May 9 and 19, 1983 when the original two days scheduled in January proved insufficient to complete the inquiry.  The appellant was committed to stand trial on the charge of first degree murder.

 

    On June 24, 1983, the trial was adjourned on consent until December 5, 1983 to deal with the appellant's application to quash the committal for first degree murder.  The application was dismissed, and on September 13, 1983 the trial date of December 6, 1983 was confirmed.  Shortly thereafter, almost 16 months after the charge, on December 15, 1983, the jury returned a verdict of not guilty of first degree murder but guilty of the lesser included offence of second degree murder.  The appellant was sentenced to life imprisonment without eligibility of parole for ten years.  The appellant was represented at this trial by Mr. Leonard Shore.

 

    The appellant launched an appeal of his conviction which was heard in December 1984.  The appellant was represented by Mr. Brian Greenspan.  On January 24, 1985, the Ontario Court of Appeal allowed the appeal partly on the grounds that the trial judge incorrectly instructed the jury relating to provocation.   A new trial was ordered.  The appellant was in custody for over thirteen months between December 14, 1983 and February 1, 1985.  On the later date he was released on bail.

 

    The appellant appeared in Assignment Court on March 4, 1985 and, upon adjournment, again on June 25, 1985, at which time a date for the second trial was set for January 7, 1986.  On November 15, 1985, counsel who had represented the appellant during his first trial, Mr. Shore, brought an application to be removed from the record.  The appellant was in the process of retaining Mr. Greenspan to conduct the second trial.  Mr. Shore's  application was refused by Osborne J. due to a concern that new counsel would be unable to prepare by January 7, 1986.

 

    However, Mr. Shore applied again on December 5, 1985, and this time his application to be removed from the record was granted by Osborne J.  On December 10, 1985, Osborne J. further directed that the trial was to proceed on January 7, 1986.  This left the appellant one month to obtain new counsel before the second trial.  Conway did not succeed in obtaining new counsel and appeared unrepresented at the scheduled start of his second trial on January 7, 1986.  The appellant gave Osborne J. at this time a list of 11 criminal lawyers including Mr. Greenspan who had stated they could not take the case due to the short time before the trial date.  Although the Crown and the court expressed some concern at the delay, the matter was adjourned to April 21, 1986 in order to allow the appellant to retain new counsel.

 

    The second trial began on April 21, 1986 with Mr. Greenspan acting as counsel for the appellant.  On May 1, 1986, after two days of deliberations, the jury failed to reach a verdict and a mistrial was declared.

 

    The matter again came up in Assignment Court on May 26, 1986. The appellant was unrepresented but a lawyer from Mr. Shore's office spoke on his behalf.  Mr. Greenspan had indicated to the accused that it would not be possible for him to act as counsel again in proceedings held in Ottawa.  There was an adjournment until June 16, 1986 in order to enable the appellant to attend with counsel to fix a date for the third trial.  At that time, although Mr. Shore spoke on his behalf, the appellant still had not retained counsel.  A trial date was nevertheless set for September 22, 1986.  A change of venue application to move the proceedings to Toronto brought by Mr. Greenspan was dismissed on August 8, 1986.

 

    After the second trial the appellant applied for assistance under the Ontario Legal Aid Plan.  This application had been made prior to the appellant's appearance on June 16, 1986 to set a date for trial.  However, Conway had not been granted Legal Aid by the time of the June 16 appearance.  After being refused twice, the appellant was finally granted Legal Aid on certain financial conditions in July of 1986.

 

    On the date set for the third trial, September 22, 1986, the appellant sought an adjournment as he had not been successful in retaining new counsel.  The request was granted over the objection of the Crown and the trial was set for November 10, 1986.  On October 2, 1986, the accused brought an application to adjourn the trial date as Donald Bayne, the new counsel, was only able to represent the appellant if an adjournment were granted.  The application was denied.  A further application was brought on November 4, 1986 and it was also denied.  From mid-September until the end of October 1986 at least seven criminal lawyers were approached to represent the appellant at his scheduled trial of November 10, 1986.  Affidavits from these lawyers were filed indicating their inability to represent the appellant at this short notice.

 

    On further application, O'Brien J. ordered that the trial not proceed until immediately after the disposition of another unrelated murder trial which was set to commence on November 17, 1986.  On December 4, 1986, the appellant brought another application to adjourn before Watt J.  This time, the request made by Mr. Bayne was granted and the date for the trial was set for April 21, 1987.

 

    On April 21, 1987, the appellant appeared before Callon J. and indicated that he wished to re-elect to be tried by a judge sitting without a jury.  The question whether the Criminal Code  gave an accused this right was scheduled to be argued before the Ontario Court of Appeal in May of 1987 (subsequently reported as R. v. Turpin (1987), 36 C.C.C. (3d) 289, appeal dismissed [1989] 1 S.C.R. 1296).  The matter was adjourned by Callon J. until the June 1, 1987 Assignment Court.  Callon J. felt it best to await the decision of the Court of Appeal.  Subsequently, at the June 1, 1987 Assignment Court the date of October 26, 1987 was set for the third trial.

 

    At the onset of the third trial, on October 26, 1987, the appellant appeared before Smith J. and entered a plea of not guilty on the charge of murder but guilty on the lesser included offence of manslaughter.  The plea was not accepted by the Crown because the appellant would not agree to a joint submission for a sentence of 15 years.  The appellant consequently brought an application to stay on the basis that holding a third trial in the circumstances would constitute an abuse of process and, as well, on the basis that in view of the time elapsed since the beginning of these proceedings, there had been a violation of his right to be tried within a reasonable time guaranteed by s. 11 (b) of the Charter .

 

    The appellant was incarcerated for a period of thirteen and a half months including the period immediately after his arrest and after the first trial prior to the Court of Appeal's decision.  While on bail the appellant was subject to several restrictions including a provision that he not reside at his family home in Barrhaven.  He was also required to report to the Manotick detachment of the Ontario Provincial Police on a weekly basis.  As well, the length and number of proceedings over five years required that the appellant appear in court for two trials, one appeal and frequently for the purpose of obtaining trial dates and adjournments.

 

    The appellant adduced evidence demonstrating that he suffered from stress, anxiety and stigmatization as a result of the delay.  The uncertainty which he faced was exacerbated by the length of the delay.  The delay resulted in the continued disruption of the appellant's family life and social life.  His education was disrupted and his health suffered.  The defence put forward by the appellant was self-defence and provocation.  Determination of these issues will depend on viva voce evidence.  The appellant alleges that his right to a fair trial has been prejudiced.

 

Judgments Below

 

High Court

 

    On November 6, 1987, Smith J. endorsed an order staying the proceedings against the appellant.  In oral reasons for judgment Smith J. held that the facts and circumstances surrounding the prosecution of the appellant did not justify a stay on the grounds of an abuse of process.  Smith J. held that a court's discretion to issue a stay based on an abuse of process must be sparingly used.  Abuse of process requires oppressive or vexatious conduct on behalf of the prosecution or some misconduct which offends the principles of fundamental justice.  Although Smith J. felt that he could consider whether the Crown's failure to accept a plea of manslaughter unless the accused agreed to a joint submission on sentencing comprised an abuse of process, he concluded that the Crown had acted in a fair and competent manner.

 

    However, after examining the nature of the proceedings and the more than five-year delay between the charge and the scheduled date of the third trial, Smith J. held that the appellant's s. 11 (b) right to be tried within a reasonable time had been infringed.  Therefore, a stay on the charge of second degree murder was ordered on the basis that the length of time taken to resolve the matter was due largely to systemic delay.  Smith J. rejected the assertions of the Crown that the appellant had in essence waived his right to assert unreasonable delay as a result of the adjournments made necessary due to the difficulty he experienced in retaining counsel.  The five-year period was said to be due largely to systemic delay which was unnecessary.

 

Court of Appeal

 

    The Ontario Court of Appeal in a unanimous decision set aside the order staying the proceedings and directed a new trial to proceed.  The Court of Appeal agreed with the court below that the conduct of the prosecution did not constitute an abuse of process.  Neither the failure of the Crown to accept a plea of guilty to manslaughter nor the refusal to consent to a trial before a judge alone were held to constitute an abuse of process.

 

    The Court of Appeal stated that even if the overall time between the charge and the stay raises a prima facie case of delay, there was no breach of the appellant's right to a trial within a reasonable time.  The reasons for the delays were not attributable to the Crown, but were either neutral or made necessary to provide a fair trial to the accused.  The Court of Appeal noted that the community has an interest in seeing that a criminal case is determined on its merits after a fair trial.  In holding that there was no violation of s. 11 (b) the Court held that so long as the delays are not unreasonable, those which are inevitable to the operation of the very system which seeks to provide a fair judicial determination of criminal charges by way of a trial should not in themselves be the basis of granting a stay of proceedings.

 

Abuse of Process

 

    The appellant argues that requiring a third trial in the circumstances of this case would comprise an abuse of process.  The appellant also contends that the Crown's insistence on tying their consent to a plea to manslaughter to a joint submission as to sentence represented an abuse of process.  I agree with the conclusion reached in the courts below that the actions of the Crown in prosecuting this case fall short of conduct justifying a stay of proceedings on the basis of an abuse of process.

 

The Right to be Tried Within a Reasonable Time

 

    The appellant argues that requiring a third trial more than five years after the date of the charge violates his right to be tried within a reasonable time pursuant to s. 11 (b) of the Charter Section 11 (b) provides:

 

                                   11.  Any person charged with an offence has the right

 

                                                                          . . .

 

                            (b)  to be tried within a reasonable time;

 

With respect, I cannot agree with the conclusions reached by the majority on this issue.

 

Application to Appellate Proceedings

 

    This case raises squarely the issue whether the rights enshrined in s. 11 (b) of the Charter  apply to appellate proceedings.  On its face, s. 11 (b) might be viewed as extending to an individual only the right to have his trial conducted in a reasonably prompt manner such that there would be no constitutionally guaranteed right to a decision or sentencing without unreasonable delay.  Understandably, however, this provision has not been construed in so narrow a fashion.

 

    This Court, in R. v. Rahey, [1987] 1 S.C.R. 588, was asked to consider the scope of s. 11 (b).  In that case the Crown closed its case fourteen months after the charges of making false returns and willful evasion pursuant to s. 239(1) of the Income Tax Act were laid.  After a defence motion for a directed verdict, the trial judge took eleven months before dismissing the motion.  The accused argued that this latter delay must also be considered a breach of s. 11 (b) even though the trial itself was conducted in a timely fashion.

 

    Lamer J. (Dickson C.J. concurring) held that the time period is not arbitrarily ended for the purpose of a s. 11 (b) claim at the end of the trial.  At pages 610-11 of Rahey, supra, Lamer J. stated:

 

    As I have already said here and in Mills [R. v. Mills, [1986] 1 S.C.R. 863], s. 11 (b) protects against an overlong subjection to a pending criminal case and aims to relieve against the stress and anxiety which continue until the outcome of the case is final.  The delay in the present case occurred prior to a determination of guilt or innocence and thus, while the case was pending, the appellant continued to be subjected to stress and anxiety . . . .  To terminate the protection afforded by s. 11 (b) as of the moment the trial is commenced without also considering as relevant the delay that may occur thereafter would be to disregard the purpose of that provision and would unduly emasculate the protection it was sought to afford. The stigma of being an accused does not end when the person is brought to trial but rather when the trial is at an end and the decision is rendered.  The computation cannot end as of the moment the trial begins, but rather must continue until the end of the saga, all of which must be within a reasonable time.

 

    La Forest J. (McIntyre J. concurring) in Rahey, supra, at pp. 632-33, similarly concluded that the s. 11 (b) right extends beyond the trial to ensure that the decision itself is rendered promptly.  I agree that any ambiguity on this point in the English version is resolved by reference to the French text which suggests that an individual's right to be "tried" promptly encompasses more than the actual trial.  The French version reads:

 

                                        11. Tout inculpé a le droit:

 

                                                                          . . .

 

                                   b) d'être jugé dans un délai raisonnable;

 

"Jugé" means "judged" or "sentenced" and connotes a sense of adjudication which goes beyond the mere trial itself.  Had the section been intended to apply to the start of the trial only, then "mis en jugement" would have been used. At the very least, the rendering of a decision or delivering of a sentence must be part of the activity which s. 11 (b) addresses. The principles of statutory interpretation ensure that a person accused of a criminal offence must be able to take advantage of the more liberal of the two equally authoritative versions, in this case the French text.

 

    In Rahey, supra, La Forest J. stated at p. 633:

 

It would be cold comfort to an accused to be brought promptly to trial if the trial itself might be indefinitely prolonged by the judge.  The question of delay must be open to assessment at all stages of a criminal proceeding, from the laying of the charge to the rendering of judgment at trial.

 

Certainly, the rights of an accused would be severely limited if s. 11 (b) were not held to extend beyond the commencement of the trial.  However, in Rahey the question of whether s. 11 (b) applies to appellate delay was expressly left open.  That question is directly raised in this appeal.

 

    The Supreme Court of the United States in United States v. Loud Hawk, 474 U.S. 302 (1986), considered the role of appellate delay in the context of a claim that the defendant's right to a speedy trial as guaranteed by the Sixth Amendment had been infringed.  After a reindictment, 44 months elapsed before trial, due largely to interlocutory appeals by both the defendants and the government from pretrial rulings.  Powell J. for the majority (5-4) recognized that the interests served by appellate review could sometimes stand in opposition to the interests of a speedy trial.  The delay caused by the appeal process can be considered as one factor suggesting that a defendant was deprived of a speedy trial.  However, on the specific facts the majority held that the delays asserted by the defendants could not weigh sufficiently in favour of a violation of their Sixth Amendment right.  Rather than dismissing the possibility that a delay in the appeal process could comprise an infringement of the right to a speedy trial, the majority merely held that the reasons for any delay must be considered.  The dissenting opinion by Marshall J. held that the defendants' right to a speedy trial had been infringed as a direct result of the delays before the Court of Appeals.

 

    The European Court of Human Rights, in the Wemhoff case, judgment of 27th June 1968, Series A No. 7, considered similar provisions.  Articles 5(3) and 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, provide:

 

    5(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 authorised 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.

 

    6(1)  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

 

Although the Article 5(3) right was said to extend only to the trial of first instance, the Court held that the Article 6(1) right to a public hearing within a reasonable time is not limited to a requirement that the initial trial commence in a prompt fashion.  The right was held to extend to the period after the trial while awaiting a decision.  As well, the right was extended to delays involving appellate decisions.  Specifically, the Court stated at p. 26:

 

    The Court is of opinion that the precise aim of this provision in criminal matters is to ensure that accused persons do not have to lie under a charge for too long and that the charge is determined.

 

    There is therefore no doubt that the period to be taken into consideration in applying this provision lasts at least until acquittal or conviction, even if this decision is reached on appeal.

 

    This interpretation of the Convention as applying until determination of the matter at the highest appellate level is in apparent recognition of the  prejudice to the appellant, which is not limited to the period prior to an initial trial, but continues until all potential appeals have been exhausted. 

 

    I am of the opinion that s. 11 (b) must extend the procedural right to be tried within a reasonable time to appellate proceedings.  The word "tried" must be interpreted in light of the intention of the provision.  The purpose of s. 11 (b) is to minimize the prejudice to an accused as a result of a criminal charge by ensuring that proceedings are completed within a reasonable time.  There is little question that most persons charged with an offence suffer some prejudice such as stress, anxiety or stigmatization.  As well, prejudice is likely to increase over time and will almost certainly continue until the ultimate resolution of the matter.  Section 11 (b) of the Charter  has provided individuals with a measure of protection against unduly long proceedings.  Given that the mischief towards which s. 11 (b) is directed (the prejudice to the accused) will persist until all appellate proceedings have finished, it would be a shallow and illusory right if s. 11 (b) were interpreted to apply only to the initial trial.  The aims or objects of s. 11 (b) were more broadly designed to guarantee an individual the right to a final resolution of a charge without unreasonable delay.

 

    Our entire court system has been placed under the scrutiny of the Charter , including s. 11 (b).  In the administration of their duties, all courts, including those at the appellate level, must be cognizant of the need to dispose of charges against individuals in a reasonably prompt fashion.  The detriment or prejudice to an accused as a result of delay does not abate until the rendering of final judgment.  I am therefore of the opinion that any period prior to the rendering of final judgment comes under the scrutiny of s. 11 (b) even where appellate courts are involved.  The process of justice must be reasonably efficient at all levels if s. 11 (b) is to be meaningful.  Both the government, which is responsible for the administration of the courts, and the judiciary must ensure that trials and appeals are conducted and completed within a reasonable time.

 

    The time elapsed as a result of resort to appeal procedures by either the accused or the Crown can be considered under s. 11 (b).  However, these delays are to be assessed in recognition of the inherent time requirements at the relevant appellate court.  Resort to appellate proceedings will understandably add to the overall time in resolving the matter.  A determination of the reasonableness of the actual delay must be sensitive to the number and nature of proceedings.

 

What is Unreasonable Delay?

 

    It is well accepted that the interpretation of Charter  rights must be considered in light of the underlying purpose of those rights.  (See Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295).  The goal of s. 11 (b) is to prevent any prejudice to an accused as a result of unreasonable delay in bringing the individual to trial or reaching a final determination.

 

    This Court had occasion to consider the overall purpose of s. 11 (b) in both Mills, supra, and Rahey, supra.  In those cases, there was general agreement that the goal of s. 11 (b) was to secure the more extensive rights to liberty and security of the person as enshrined in s. 7  of the Charter .  I agree that s. 11 (b) is premised in part upon a desire to ensure that an accused's liberty and security are not unduly violated as a result of a failure to complete criminal proceedings within a reasonable time.

 

    The need to consider an accused's liberty and security interests is common ground among the members of this Court who participated in the discussion in Rahey and Mills.  However, slightly different approaches to the consideration of s. 11 (b) were adopted by members of this Court in Mills, and especially in Rahey.  The four separate judgments in Rahey, reveal that there was no unanimous agreement on the following points:  (1) whether there is an irrebuttable presumption of prejudice to the accused's security interest or if this is simply an inference that may be drawn by the Court; (2) whether the infringement of an accused's fair trial interest is also a form of prejudice that s. 11 (b) is intended to limit; and (3) whether the prejudice is to be measured from the moment of the charge or only after the delay becomes unreasonable.  These differences did not, however, in Rahey affect the result.  I am of the opinion that this appeal can be disposed of without attempting to reconcile all the differences of opinion expressed in those two cases.  That would be more appropriate in a case where these issues would affect the result and all members of the Court are able to participate in the decision.  Resort to s. 11 (b) is becoming more frequent and this tendency is likely to continue and indeed increase.  It is important, therefore, that this Court adopt a practical approach to the problem that will not unduly complicate the application of s. 11 (b).  I shall therefore state my views with this in mind and with due deference to the views expressed by my colleagues.

 

    The party alleging a violation of s. 11 (b) cannot by the mere allegation call upon the Crown to justify the period of time that has elapsed since the charge.  On the contrary, the person charged has the initial burden of satisfying the court that, prima facie, the delay is unreasonable.  The United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972), per Powell J., at p. 530, held that only if a delay was presumptively prejudicial would the court inquire into various factors that need be balanced.  This approach of looking first for a delay that is prima facie unreasonable has been followed by Le Dain J. in Rahey, supra, at p. 616, and by the Ontario Court of Appeal in R. v. Antoine (1983), 5 C.C.C. (3d) 97 and in R. v. Askov (1987), 37 C.C.C. (3d) 289.

 

    Section 11 (b) assumes that a reasonable time is required to "get a case up for trial".  This is the inherent time requirement in disposing of a trial or an appeal.  There is the time required to prepare, conduct a preliminary inquiry (where applicable) and arrange for the attendance of witnesses.  In addition, there are normal systemic delays:  adjournments for the reasonable accommodation of the schedules of counsel, the attendance of witnesses and to make court facilities available.  This list is not intended to be exhaustive.  We have come to accept as normal a reasonable period of delay with respect to these matters which reflect the fact that the system is not perfect and resources are not unlimited.  The distinction between what is reasonable and what is unreasonable must not be drawn too sharply but it is a line with which both judges and counsel are very familiar and which is well within their expertise to draw.

 

    The person charged must persuade the court that the delay complained of exceeds what is reasonable.  The degree of persuasion requires an accused to show that the delay is prima facie unreasonable or that it is sufficiently beyond the inherent time requirements that an explanation is called for from the Crown.  It is neither possible nor desirable to identify precisely the period of time after which a particular trial will be said to have been delayed so long as to trigger s. 11 (b).  Rather, courts, and especially trial judges, must assess each case in light of the particular circumstances with a view to determining if the delay if prima facie unreasonable.

 

    In this appeal this burden has been discharged as a result of the five year delay and the respondent Crown quite properly concedes that the delay is prima facie unreasonable.

 

    The Crown may justify the delay on the basis of special features or circumstances of the case that required more time; for example, that aspects of the case required more investigation than is generally required for a particular charge, or that it took longer to arrange for attendance of witnesses due to circumstances not reasonably within the control of the Crown.  The Crown can also justify the delay on the basis of conduct of the accused or his counsel, including waiver of delays which are relied on as being excessive.  The Crown cannot, however, justify long periods of systemic delay even if such delays are beyond the control of the prosecution.  Section 11 (b) would be meaningless if abnormal delays in bringing the accused to trial could be excused on such grounds as the unavailability of court rooms, judges or counsel.  Furthermore, the fact that it has been the practice to tolerate long systemic delays in the past does not immunize them from scrutiny under s. 11 (b).

 

    While certain delay is inherent in the very process, the Crown must be limited in the extent to which it can claim that an inordinately long delay is justified due to exceptional demand on the resources of a particular court.  A crowded trial calendar is not the accused's fault and it should not be charged against his constitutional right.  As well, s. 11 (b) calls upon the judiciary to render decisions without unreasonable delay.  Judges, too, must shoulder some of the responsibility to ensure that an accused does not suffer an impairment of her interests as a result of unreasonable delay.

 

    The accused's right to counsel is as much a part of the system as the role of the Crown Attorney.  The failure or inability on the part of the accused to obtain counsel cannot justify unreasonable delay unless such failure or inability is attributable to the accused.  As in the case of other systemic delays, some delay must be tolerated under this head, the question always being whether the particular delay can be justified on the basis of inherent time requirements of the case.

 

    Frequently, and this case is no exception, the Crown relies on waiver.  An accused may have caused or consented to a period of delay such that he or she will be precluded from including that period of time in the alleged delay.  This Court held in Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41, at p. 49, that the validity 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".  (Emphasis in original.)

 

    In the context of a waiver of the right to counsel, this Court held in Clarkson v. The Queen, [1986] 1 S.C.R. 383, that a waiver requires some form of awareness of the consequences.  Clearly, an individual need be aware of the effect of a waiver upon his ability to subsequently assert that right.

 

    I fully agree with the following comments of Lamer J. in Mills, supra, at p. 929:

 

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.

 

    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.

 

    Failure by the Crown to displace the prima facie case does not necessarily end the matter.  Delay in and of itself may not constitute a violation of the right in s. 11 (b).  The purpose of s. 11 (b) is not simply to prevent unreasonable delay but to protect certain interests of the accused including at least his liberty and security interests.  Section 11 (b) assumes that delay is prejudicial to those interests.  While the various opinions in Mills, supra, and Rahey, supra, adopt similar approaches to the prejudice to an accused's liberty interest, there is some disagreement whether prejudice to the security interest is an irrebuttable presumption or simply an inference a court is entitled to make.  (See Rahey, supra, per Lamer J. at p. 609, per Wilson J. at p. 622, and per La Forest J. at p. 643.)

 

    If the presumption is rebuttable, it is one that is extremely difficult to overcome.  This is not because it is a different type of presumption in law but because, as a matter of fact, once the accused has established a prima facie unreasonable delay which has not been justified, it is difficult to envisage what kind of evidence the Crown might call to negative prejudice to the accused's security interests.  No doubt this is due to the fact that unreasonable delay in a criminal prosecution is virtually synonymous with prejudice to security interests.  As a practical matter, therefore, there is little difference between the two views on this subject expressed in Rahey.  It seems preferable not to foreclose the Crown completely from attempting to demonstrate an absence of any impairment to the accused's security interest even if it is almost inevitably bound to fail.  Absolutes in excluding types of evidence should generally be avoided.

 

    On this view of the matter, the accused is also permitted to adduce evidence of prejudice to his or her security interests.  It is not necessary in this appeal to resolve all facets of its relevance.  At least, it would be relevant to rebut any evidence of the Crown.  In addition, it would likely be relevant on the issue of justification of periods of delay and perhaps with respect to what is prima facie delay.

 

    In the case at bar, the Crown has not displaced the presumption of prejudice to the accused.  Indeed the evidence on the subject which is canvassed above confirms that there was actual prejudice to the liberty and security interests of the appellant.

 

    The third possible interest that need be considered is the fair trial interest which considers the accused's ability to mount a full defence to the charges he faces.  Here again different approaches were followed in Mills and Rahey.  A majority in Rahey (per Le Dain J. (Beetz J. concurring), per Wilson J. (Estey J. concurring), and per La Forest J. (McIntyre J. concurring)) concluded that the prejudice caused by delay to the accused's fair trial interest and especially the right to conduct full answer and defence is a relevant consideration under s. 11 (b).  Lamer J. (Dickson C.J. concurring) held that the accused's ability to mount a full and fair defence is relevant only to the s. 11 (d) right to a fair hearing and not to s. 11 (b).  Again this issue need not be resolved here.  Prejudice to the fair trial interests are not a sine que non for a finding of prejudice and in any event, if it were, such prejudice has been established in this case.  I have already pointed out that the cases for the Crown and the defence are both dependent on viva voce evidence which is conflicting.  The appellant alleges that this prejudices his opportunity for a fair trial.  Whether or not this would be the case can seldom be determined with precision.  Certainly the witnesses will have little independent recollection of the events and their evidence will be given more by rote than remembrance.  This reduces the effectiveness of examination and increases the risk of a miscarriage of justice.

 

Conclusion and Disposition

 

    In this case, I am of the opinion that the Crown has failed to sufficiently justify the delay which it appropriately concedes is prima facie unreasonable.  As well, the appellant has demonstrated prejudice to both his liberty and security interests at a minimum.  I now turn to an examination of the reason for delay and the justification put forth by the Crown.  I divide the five-year period into four segments:

 

(1)The date of the charge until the end of the first trial:  August 29, 1982 to December 15, 1983.  Almost 16 months.

 

(2)The end of the first trial until the Court of Appeal Decision: December 15, 1983 to January 24, 1985.  More than 13 months.

 

(3) The Court of Appeal decision until the second trial: January 24, 1985 to May 1, 1986.  More than 15 months.

 

(4)The end of the second trial until the scheduled start of the third trial:  May 1, 1986 to October 26, 1987.  Almost 18 months.

 

With respect to the first period I am of the opinion that any delay can be justified on the basis of the inherent time requirements of the case with the possible exception of the period between January 12, 1983 and May 9, 1983.  The preliminary hearing commenced on January 12 but was not completed on that date and was adjourned to May 9 and concluded on May 19, 1983.  No explanation was offered for this delay of four months.

 

    The second period is the thirteen months from the end of the first trial until the decision of the Court of Appeal.  This period alone is not abnormal or unreasonable.  The decision itself was rendered in a very prompt fashion.  Almost the entire delay was a result of the wait to be heard by the Court of Appeal. This delay has been explained adequately.

 

    The third period is the fifteen-month delay leading up to the second trial.  The Crown has argued that the accused's actions during this period comprised a waiver of his right to assert unreasonable delay.  The Crown alleged that the accused's tardiness in retaining counsel was responsible for any delay.  The appellant appeared in Assignment Court on March 4, 1985. For reasons that were not made clear to this Court the matter was adjourned for over three and one-half months until June 25, 1985.  The Crown failed to satisfactorily account for this delay.  On June 25 a trial date of January 7, 1986 was scheduled.  This sixth-month period is part of the overall systemic delay but in the circumstances would probably be well within the inherent time requirements.  However, the actual trial did not commence until April 21, 1986.

 

    On November 15, 1985, the counsel of record (and counsel at the first trial), Mr. Shore, brought an application to be removed from the record.  The appellant apparently preferred to be represented by Mr. Greenspan who had conducted his successful appeal.  The request was denied at that time due to a concern by the court that new counsel would not be available or would be unable to prepare by the January trial date.  However, on a further motion on December 5, 1985, Mr. Shore was removed from the record.  Predictably, on January 7, 1986, the appellant appeared without counsel and Osborne J. understandably declined to conduct the trial.  The appellant provided the court with a list of eleven criminal lawyers who had stated they were unable to take the case.

 

    This Court must be very sensitive to an accused's right to choose counsel of choice.  However, that right must be exercised with reasonable diligence  (see R. v. Ross, [1989] 1 S.C.R. 3).  Normally, an attempt to secure the services of eleven different lawyers would demonstrate that the appellant had made a reasonable effort to secure representation.  However, in this case, I am of the opinion that the appellant must answer for the delay caused by his lack of counsel.  I reach this conclusion because the first application to remove Mr. Shore from the record came only a month and a half prior to the trial date.  This date had been known to the appellant since June.  Section 11 (b) must only protect those who demonstrate reasonable diligence in their selection of counsel when it affects the timing of the proceedings.  Not all delays or adjournments sought by an accused will comprise a waiver as the underlying cause may be due to circumstances beyond the control of the accused.  Here, however, the appellant must be held accountable for this delay.  The trial was rescheduled for April 21, 1986.  Because I attribute this delay to the appellant, this three and one-half month delay is satisfactorily explained by the Crown. 

 

    The fourth and longest period extends from the conclusion of the second trial until the scheduled start of the third, a period of close to eighteen months.  The Crown again argues that the appellant's actions were responsible for much of this delay such that he should be held to have waived his s. 11 (b) rights.  I am of the opinion, however, that most of this period has not been satisfactorily explained as being either within the inherent time requirements of the case or attributable to the accused.  The Crown's conduct of the proceedings must now be scrutinized in light of the fact that through no fault of the appellant he had been tried twice and was still in jeopardy.

 

    A month after the end of the second trial, the appellant appeared unrepresented in Assignment Court.  The matter was adjourned two weeks until June 16 to allow him to appear with counsel.  Mr. Greenspan, counsel at the second trial, had informed the appellant that he could not conduct the third trial if it were again held in Ottawa.  The appellant was also suffering financial difficulties and had been seeking Legal Aid for some time prior to the June 16 appearance.  However, no Legal Aid was forthcoming by the time of that appearance at which the unrepresented appellant was given a trial date of September 22, 1986.  Legal Aid was only obtained upon appeal in July.  This difficulty in obtaining Legal Aid was not the fault of the appellant and therefore he cannot be held responsible for any delay as a result.  This is a different form of systemic delay which cannot be relied on here by the Crown as justification for any delay.  I agree with counsel for the appellant that in view of what has occurred, the Crown had some responsibility to assist the accused in obtaining Legal Aid or indeed in funding the defense.  The latter is, according to counsel, not an uncommon occurrence.  While the Crown contends that its current practice concerning assistance extends only to appellate proceedings, there is no reason why in special circumstances it should not apply to trial proceedings which have been protracted due to appeals.

 

    Mr. Greenspan on behalf of the appellant sought to obtain a change of venue to move the proceedings to Toronto.  This application was opposed by the Crown and was dismissed on August 8, 1986, less than two months prior to the trial date.  This application was a reasonable request by the appellant who would understandably desire representation by counsel very familiar with the case.  Opposing this application in light of the appellant's known difficulties in obtaining counsel directly contributed to the plight in which he found himself on September 22, 1986.  He had no counsel.  Again, while the Crown has the right to oppose such motions, its actions here directly contributed to the mounting delay.

 

    A new trial was set for November 10, 1986.  Though the attempt to expedite the proceedings appears admirable in one sense, it also created the dilemma for the appellant of having to find counsel who was available on short notice.  The appellant was reasonably diligent in his attempt to find a lawyer.  Affidavits were filed from seven criminal lawyers who were approached between mid-September and the end of October.  They were all unable to conduct the trial on November 10.  Mr. Donald Bayne on behalf of the appellant sought an adjournment on October 2 so that he could represent the appellant.  This application was denied as was a further application on November 4, 1986.  After a several week postponement, the trial was finally moved to April 21, 1987.  I am of the view that this delay was not the responsibility of the appellant and that he did not unequivocally waive his right to a prompt trial.  On the contrary, his actions demonstrated an attempt to respond to the short trial date which was scheduled.  I agree with counsel for the appellant that the Crown's insistence on an unrealistically short adjournment in light of the appellant's known predicament was the principal reason for not being able to retain counsel and hence caused the delay.  It is an unfortunate illustration of the saying "haste makes waste".

 

    On April 21, 1987, the appellant sought to be tried by judge alone.  As the question whether this election was available to an accused was then before the Ontario Court of Appeal the trial was again postponed, this time until October 26, 1987.  The Crown could have consented to this request pursuant to s. 430(1) of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 473(1)), but opposed it and argues that this delay is solely the responsibility of the appellant.  Admittedly, the Crown had little control over the delay once it refused to allow a hearing before a judge alone.  In view of the circumstances, however, and recognizing that refusal to consent is the prerogative of the Crown, I cannot accept the Crown's explanation of this delay.  The antecedent delay was now chronic.  The time for insisting on dubious procedural advantages had gone.  This request by the appellant to be tried by judge alone was especially reasonable given his earlier experiences with jury trials.  The appellant also demonstrated his sincerity in wanting to conclude the proceedings by offering to plead guilty to manslaughter.

 

    Accordingly, I am of the opinion that substantial segments of the five-year period have not been justified or satisfactorily explained either on the basis of special circumstances of the case or that they have been waived by the appellant.  As well, the appellant has demonstrated that the delay resulted in prejudice to his liberty and security interests.  Furthermore, it is unlikely that a fair trial is now possible.  Applying the principles in Mills, supra, and Rahey, supra, on any approach expressed therein, a breach of s. 11 (b) is made out.  I agree with the majority of this Court in Rahey that the minimum remedy in the event of a violation of s. 11 (b) is a stay of proceedings.  In the result, I would have allowed the appeal, set aside the order of the Court of Appeal and restored the order of Smith J. at trial.

 

    Appeal dismissed, SOPINKA J. dissenting.

 

    Solicitors for the appellant:  Gold & Fuerst, Toronto.

 

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

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