Civil rights — Trials, due process, fundamental justice and fair hearings — Speedy trial, accused's right to — What constitutes within a reasonable time — Canadian Charter of Rights and Freedoms — Denial of rights — Remedies, stay of proceedings.
Application by the accused DWM to stay criminal proceedings against him because he was not tried within a reasonable period of time. DWM was arrested and charged on July 26, 1999. He was charged with sexual assault and incest with a child under the age of 14. It took 16 months and 20 days for his case to reach the Superior Court. This occurred on December 15, 2000. He was convicted on November 13, 2001. On March 17, 2003 the Court of Appeal ordered a new trial. His trial was supposed to commence on July 5, 2004. While DWM was in detention he was locked up for 23 hours a day. This was to protect him from other inmates who learned about the charges.
HELD: Application allowed. The total time to bring this matter to trial was 32.5 months. Such a large time delay had to be accompanied by an absence of prejudice to an accused. DWM was prejudiced by this delay. He ended up serving more prison time than he would have served if he had lost his appeal. At the time of the appeal he was eligible for parole in 19 months. Instead he served 29 months. He had the equivalent of a 47-month sentence. DWM's rights of being tried within a reasonable period of time and of being presumed innocent until convicted were both infringed.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, ss. 11(b), 11(d), 24(1).
Counsel:
S. O'Brien Counsel on behalf of the Crown
C. Rippell Counsel on behalf of D.W.M.
¶ 1 HARRIS J.:— The accused, D.W.M., was arrested and charged on July 26, 1999. He was convicted on November 13, 2001 and on March 17, 2003 the Court of Appeal ordered a new trial. This week of July 5, 2004 his trial commences and Mr. D.W.M. brings an application to stay the proceedings against him on constitutional grounds. More specifically, it is an Askov application pursuant to s. 24(1) of the Canadian Charter of Rights and Freedom. On the basis that his right to be tried within a reasonable time is guaranteed by s. 11(b) by The Charter has been infringed.
¶ 2 I am going to allow the application.
¶ 3 There are two blocks of time to examine.
¶ 4 July 26, 1999, to December 15, 2000, being the time from arrest to first appearance in Superior Court, a total of 16 months and 20 days.
¶ 5 Two, March 17, 2003 to July 5, 2004, being the time the Court of Appeal ordered a new trial for the present date. A total of 15 months and 23 days.
¶ 6 The total time to bring this matter to trial, 32 and a half months. This length of time is double the guidelines and accordingly prompts a review.
¶ 7 This is a straight forward, uncomplicated matter with the central issue being credibility. The preliminary inquiry took one day of court time. The Crown has three witnesses. The estimated time for trial is three to five days.
¶ 8 The set date transcripts show that the accused was, for the most part, looking for early dates and was consistent in his efforts to push matters along. There was minimal delay attributable to the defence in the calculus of time. And along with that, there was no necessity to consider any defence waiver. The Crown, too, was looking for earliest dates. The bulk of the delay was institutional.
¶ 9 Perhaps the most glaring omission was the failure of the State to bring the accused into court for his re-trial pursuant to the appeal court order. Once the Court of Appeal ordered a new trial, the accused should have been brought into court promptly to set a trial date and review his bail. Instead, the accused was left in the Hamilton Detention Centre for four and a half months.
¶ 10 There was nothing sinister in this failing. The Crown was of the mistaken belief that bringing the accused back on stream from the Court of Appeal was an administrative matter. Nevertheless, it was an omission wanting in its curiosity and devotion. In the result, it visited unnecessary, harsh difficulties upon the accused which, to my mind, would carry significant prejudice.
¶ 11 The record before me discloses that, not surprisingly, with the charges of sexual assault and incest with a child under 14 years of age, the word spread fast at the detention centre and the accused was subjected to assaults, taunts, threats and sundry indignities. He was segregated from the population and placed in protective custody. He was in lock-down for 23 hours a day during this period.
¶ 12 Such a large deviation from the time guidelines needs to be accompanied with an absence of prejudice to the accused. I adopt the reasoning of Belleghem, J. in R. v. Wadas, [1992] O.J. No. 2498, that the onus on the accused to establish on the balance of probabilities that a breach of his charter rights under s. 11(b) is met by establishing that his case falls outside the guidelines. And, if the Crown opposes a stay in a case that is in excess of the norm, it has the burden of showing directly or inferentially an absence of prejudice.
¶ 13 On the record before me, there was no evidence from which I could infer an absence of prejudice.
¶ 14 On the set date appearance of January 16, a trial date is set for July 5, 2004, some five months hence. This time it was the defence that first suggested the July date. There was some back and forthing on the trial date but it came down to July 5, 2004 at the suggestion of the accused. Everybody readily agreed with that date and it was that all too pleasant exchange that best illustrates the underlying softness of this odyssey. Nobody pushed for an earlier trial date and therein lies the rub.
¶ 15 Crown counsel on this application summed it up best. "For important, practical purposes there is a combined duty on all of us to mitigate prejudice and delay."
¶ 16 I agree and that view is also articulated by MacPherson, J. in R. v. R.M., 180 C.C.C. (3rd) 49.
What I do say is that it is incumbent on the presiding judge and both counsel to explicitly recognize a case that is in trouble and to discuss fully on the record how to deal with the problem. If an adjournment of a preliminary inquiry is required, there should not be a pro forma "what is the next available date" conversation. Instead, the time period that has already elapsed should be explicitly acknowledged on the record and there should be a frank discussion about how to resolve the problem. the focus of the discussion should be on ways to speed up the proceeding. The presiding judge, the trial coordinator if necessary and both counsel should attempt quite conscientiously to schedule the continuation. |
¶ 17 However failing that kind of determined collaboration, the responsibility will default to the Crown on applications such as this for "it is fundamental to our criminal justice system that the responsibility of bringing the citizen to trial is on the Crown." R. v. Askov, [1990] 2 S.C.R. 1199, Cory, J.
¶ 18 The Crown has carriage of the action. The state initiates its action with an accusation against a citizen and carries a duty to that citizen throughout the prosecution to be expeditious and earnest.
¶ 19 In this case the accused ended up serving more prison time than he would have served if he had lost his appeal. At the time of the appeal, he was eligible for parole in 19 months. Instead, he effectively served 29 months. He had the equivalent of a 47 month sentence.
¶ 20 The 32 and a half months to bring this matter to trial was excessive and the prejudice of his time incarcerated post appeal is manifest and weighty.
¶ 21 The accused's rights under s. 11(b) and (d) have, in my respectful opinion, been infringed and for these reasons the application is allowed and indictment is stayed.
QL UPDATE: 20041122
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