Unreasonable Delay in Criminal Proceedings: Supreme Court of Canada Holds 30 Month Delay Unconstitutional

R v Godin, 2009 SCC 26 (CanLII) (4 June 2009)

The Supreme Court of Canada upheld an appeal for a stay of proceedings where there was a delay of 30 months between the accused being charged and brought to trial. The Court held that the accused’s right to be tried within a reasonable time under the Canadian Charter of Rights and Freedoms had been violated.

Facts

In May 2005 the accused was charged with sexual assault, unlawful confinement and threatening to kill his girlfriend. The Crown proceeded summarily, but four days before the trial date new evidence arose, and with the defendant’s consent, the Crown elected to proceed on indictment.

The earliest date available for the preliminary hearing was 16 months later, in September 2006. Defence counsel proposed several earlier dates when he would be available, without any response from the prosecution. Subsequently, the preliminary hearing was adjourned twice, and the trial was finally set down to be heard in November 2007, 30 months after the charges were first brought against the defendant.

The accused brought an application for a stay of proceedings in June 2007, claiming that his right to be tried within a reasonable time guaranteed by s 11(b) of the Charter was violated. The defendant’s application to stay the proceedings was successful at first instance, but reversed on appeal to the Ontario Court of Appeal. The defendant appealed to the Supreme Court of Canada.

Decision

The Supreme Court of Canada unanimously allowed the defendant’s appeal and held that the accused’s right to be tried within a reasonable time had been violated.

In assessing whether the delay was unreasonable, Cromwell J, with whom the other members of the Court agreed, looked to the length of the delay, the reasons for delay, and the prejudice to the accused, taking into account the interests that s 11(b) seeks to protect.

Length of delay

It was held that the delay in this case substantially exceeded the guidelines set by previous Supreme Court cases. The Court noted that, while this did not of itself make the delay unreasonable, the reasons for the delay and the prejudice caused to the defendant made the delay unreasonable in this case.

Reasons for delay

The Court found that the delay was mostly attributable to the Crown, who had neither sufficiently explained nor adequately justified its length. The defendant had tried to expedite the matter, but the Crown had ignored his efforts.

Although defence counsel had on one occasion rejected an earlier date proposed for the preliminary hearing, the Court remarked that ‘while scheduling requires reasonable availability and cooperation, it does not require defence counsel to hold themselves in a state of perpetual availability’. It was not open to the Crown to place too much responsibility on the defence counsel for the delay.

The Court also took into account the fact that the case was relatively straight forward and would have required little court time, which added to the unreasonableness of the delay.

The Court emphasised that the Crown held the burden of explaining any unusual delays caused by forensic investigators, and noted that the defendant was entitled to timely disclosure of the case against him.

Prejudice

Whether the accused had suffered any prejudice as a result of the delay was a key consideration.

In the context of s 11(b) of the Charter, there are three relevant interests of the accused that are intended to be protected:

liberty (regarding pre-trial custody and bail);
security of the person (in the sense of being free from the cloud of suspicion); and
the right to make full answers and defence (as delay can prejudice the defendant’s ability to lead evidence, cross-examine witnesses and lead its defence).

The Court stated that the ‘the question of prejudice cannot be considered separately from the length of the delay’, and that prejudice may be inferred from the inordinate length of delay in this case. The Court also noted that it was more likely to draw an inference of prejudice as the delay increased.

The Court found that the defendant had suffered prejudice in this case because:

the defendant was subject to strict bail conditions (even though the bail conditions had been relaxed as the delay lengthened);
the defendant had experienced prolonged exposure to criminal proceedings resulting from the delay; and
the case was likely to turn on credibility and the extra passage of time was likely to diminish the defendant’s ability to effectively cross-examine relevant witnesses, which was critical to the defendant’s case.

Relevance to the Victorian Charter

Section 25 of the Victorian Charter of Human Rights protects the rights of defendants during criminal proceedings, including the right to be tried without unreasonable delay. This case provides some valuable insight into the scope of the right to be tried without unreasonable delay, and guidance on how ‘unreasonable delay’ should be assessed.

The decision is available at http://www.canlii.org/en/ca/scc/doc/2009/2009scc26/2009scc26.html.

Josh Underhill, Human Rights Law Group, Mallesons Stephen Jaques