Application for Stay of Proceedings

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The

Canadian Charter of Rights and Freedom

states, in part:

Section 11: Any person charged with an offence has the right:

(b) – to be tried within a reasonable time(d) – to be presumed innocent until proven guilty according to the law….

Section 24:

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

Askov et al v. R

The Supreme Court of Canada, which ultimately interprets the

Charter

, has made several decisionswith respect to the

Charter

. On October 18, 1990 a decision was released in a case called Askov et alversus Regina. In that case, there had been a two year pre-trial delay and when it finally proceeded tocourt, counsel for all of the accused involved, argued that their clients rights to be tried within areasonable time, pursuant to section 11(b) which provides a right to be tried within a reasonable time,had been unreasonably delayed. The initial judge (Judge Bolan, the senior judge of the District Court of the judicial district of Peel) granted a “stay of proceedings” against all of the accused. Judge Bolan, presiding at the trial, found that a period of 34 months, to bring a case to trial, was prima facieexcessive. Judge Bolan’s decision was appealed. The Ontario Court of Appeal set aside the “stay” anddirected that the trial proceed. All of the accused appealed the matter to the Supreme Court of Canada.The Supreme Court Judges carefully reviewed this matter. They looked at, amongst other things, theCharter of Rights and Freedoms, specifically sections 1, 7, 10 (b), 11, 24 and the Sixth Amendment of the Constitution of the United States of America. The Sixth Amendment ensures that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”. One case which was reliedupon, when making the decision in

Askov

was

Barker v. Wingo,

407 U.S. 514,33 L. Ed. 2d 101, 92 S.Ct. 2182 (1972), which dealt with the Sixth Amendment, with no comparable provision to our section 1(of our

Charter

). The United States Supreme Court considered the Sixth Amendment right of theaccused, Barker, in a case called

Barker v. Wingo.

In that case, Barker had been charged with murder and did not have his trial until five (5) years after the murder had taken place. Barker (as the accused)only began invoke his Constitutional right under the Sixth Amendment 3 ½ years after the chargeswere laid. Judge J. Powell, who provided the reasons in the case, on behalf of the U.S. Supreme Courtruled that a “flexible approach should be taken to cases involving delay and that the multiple aims of the Sixth Amendment must be appreciated.U.S. Supreme Court Judge Powell continues to write for the majority in

Barker…

Page 2 con’t..

Barker

con’t

… - 2 -In his decision, he recognized the general concern that all persons accused with crimes should betreated according to fair and decent procedures. He particularly noted that there were three individualinterests which the right was designed to protect:(i)to prevent oppressive pre-trial incarceration;(ii)to minimize the anxiety and concern of the accused; and(iii)to limit the possibility that the defence will be impaired or prejudiced.He went on to say that the right to a speedy trial involved the added dimension of a societal interest.He found that a delay could result in increased financial cost to society and, as well, could have anegative effect upon the credibility of the justice system. Judge Powell went on to speak to the SixthAmendment. He stated that in order to balance the individual right and the communal aspect of theSixth Amendment, the United States Supreme Court adopted an approach of ad hoc balancing “inwhich the conduct of both the prosecution and the defendant are weighed”. The balancing is undertaken by reference to four factors as the test for infringement of the right to a “speedy trial”. Those four factors are:(i)the length of the delay;(ii)the reason for the delay;(iii)the accused’s assertion of the right; and(iv)prejudice to the accused.The Supreme Court of Canada upheld the stay, given that the pre-trial delay was grossly excessive onits face.In

Morin

(

Regina vs. Morin

) the Supreme Court of Canada rendered a decision ion March 25, 1992.In this case, there was a delay of 14 months between the date of arrest and the Provincial Court trial, ona charge of impaired driving (contrary to section

253

of the

Criminal Code

). At the trial, the accusedapplied for a stay of proceedings, on the basis that her right to a trial within a reasonable time as provided for in section 11 (

b

) of the

Charter

, had been violated. This motion under the Constitutionfailed and she was convicted. She appealed and won, when a stay was granted. The Crown appealedthis decision to the Ontario Court of Appeal and the Court of appeal set aside the stay and reinstated theconviction. The accused appealed the decision to the Supreme Court of Canada, which decided that theappeal would be dismissed. The Court spoke to the factors that must be weighed when an individual isclaiming that his/her rights, pursuant to section

11 (b)

of the

Charter

, have been infringed and areseeking relief under section

24 (1)

of the

Charter

.The requires the court to examine the period from the charge to the end of the trial. Pre-charge delaymay, in certain circumstances, have an influence on the over-all determination as to whether post-charge delay is unreasonable but of itself is not counted in determining the length of the delay. If thelength of the delay is unexceptional, no inquiry is warranted and no explanation for the delay is calledfor, unless the accused is able to raise the issue of reasonableness of the period by reference to other factors such as

prejudice

.

Morin

con’t…/3