Important 11b decision released today by Supreme Court of Canada

R. v. Godin, 2009 SCC 26

In May 2005, the accused was charged with sexual assault, unlawful confinement, and threatening to kill his ex-girlfriend.  The Crown elected to proceed summarily.  In mid-September, the trial dates were fixed for mid-February 2006.  Four days before the trial, the Crown received the forensic report indicating that the DNA profile of the spermatozoa swab obtained from the complainant did not match the accused.  In response to this new evidence, the Crown and defence agreed that the Crown would re-elect to proceed by indictment in order to give the defence the opportunity to explore the complainant's evidence and the forensic report at a preliminary inquiry.  The earliest day available was September 2006.  Defence counsel wrote to the court and the Crown proposing several earlier alternative dates on which he would be available.  The Crown did not respond.  The September preliminary inquiry was adjourned for want of sufficient court time.  It was re-scheduled to February 5, 2007 because defence counsel was unavailable at a December date proposed by the Crown.  The trial was set for November 2007, 30 months after the charges were laid.  In June 2007, the accused successfully brought an application for a stay of proceedings on the ground that his right to be tried within a reasonable time guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms was violated.  The majority of the Court of Appeal set aside the stay and remitted the matter to trial, holding that the trial judge had erred in his analysis of the conduct of the defence and of prejudice to the accused.

 

Held:  The appeal should be allowed.  The accused's s. 11(b) right was violated.

 

Although this was a straightforward case with few complexities and requiring very modest amounts of court time, the delays far exceeded the Morin guidelines.  Virtually all of the delay, in particular the 9-month delay in obtaining and disclosing the forensic analysis and the delay resulting from the adjournment of the preliminary inquiry, was attributable to the Crown.  These delays were unexplained, let alone justified.  Furthermore, defence counsel tried unsuccessfully to move the case ahead faster; the Crown, however, failed to explain why his request for an earlier date for the preliminary inquiry was ignored and why more priority was not given to this case which, by then, was in obvious s. 11(b) difficulty. 

 

Defence counsel did not significantly contribute to the delays.  Although the defence agreed to the Crown re-election, had the Crown obtained the forensic evidence within a reasonable amount of time, the re-election to proceed by indictment and the subsequent preliminary inquiry could have happened much sooner.  The accused was entitled to timely disclosure, and he did not receive it.  There is also no suggestion that defence counsel was unreasonable in rejecting the earliest date offered to reschedule the preliminary inquiry.  While scheduling requires reasonable availability and reasonable cooperation, it does not require defence counsel to hold themselves in a state of perpetual availability for s. 11(b) purposes. 
 

In the absence of specific evidence of prejudice to the accused's liberty and security interests or his interest in a fair trial, prejudice may be inferred from the length of the delay.  The longer the delay the more likely that such an inference will be drawn.  Here, the charges had been hanging over the accused's head for a long time and it was reasonable to infer, as the trial judge did, that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice.  The accused had also been on judicial interim release for more than two years and, although bail conditions were relaxed as the delay lengthened, this consideration was properly taken into account as one relevant aspect of the trial judge's assessment of whether the long delay was unreasonable.  Lastly, there was evidence of a risk of prejudice to the accused's defence because of the delay and weight should be accorded to this risk. 
 
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777