Manufacturing Delay

There is a constitutional right to a speedy trial.

That right is largely, but not entirely, for the protection of an accused (society too has an interest in speedy justice). That said, as the Court of Appeal made clear today in R. v. Fragoso, 2008 ONCA 483, where a delay, even a very long delay, of trial is caused by the actions of an accused, that delay cannot lead to a stay of proceedings because of a failure to have a speedy trial.

In Frangoso the accused was arrested October 14, 1999, the day of the last of the five robberies. He was not sentenced until almost five years later on July 26, 2004. Clearly, the passage of some fifty-six months raises the issue of delay.

The Court found, however, that the delays were attributable, mainly, to the accused and not stay was appropriate. The language of the Court is interesting::

[17] Counsel’s argument comes down to the claim that regardless of who is responsible for the delay in these proceedings, the delay was so inordinate that it must have infringed the appellant’s rights under s. 11(b). This submission misses an important distinction between delay that is excessive and potentially harmful to the administration of justice, and delay that results in the violation of an individual’s constitutional rights under s. 11(b).

[18] An accused cannot manufacture delay, using a waiver of his s. 11(b) rights as to secure that delay, and then argue that the delay produced a breach of those very same constitutional rights that he waived to secure the delay. On the trial judge’s findings, that is exactly what the appellant is trying to do in this case.