27 Finally, we disagree with the view of the appeal judge that the s. 11(b) motion should have been argued at the end of the trial. A motion to stay proceedings for a s. 11(b) breach is ordinarily argued before trial absent unusual circumstances, which did not exist here.
Further assistance comes from the Manitoba CA in Byron, [2001] M.J. No. 245:
11 While the appeals are dismissed, we feel it would be appropriate to take the opportunity to make some comment on the rather unusual procedure followed by the trial judge in this matter.
12 The trial judge heard the motions for delay, and then reserved his decision on the matter until the conclusion of the four-week trial. He did not reserve to allow time to reflect on his decision which would have been perfectly understandable. Rather, he reserved deliberately so as to be able to make an alternative decision on the substance of the charges themselves....
16 There are many situations involving the Charter where it is totally appropriate for a decision to be made only after the hearing of all the evidence. In fact, when an accused is challenging the constitutionality of a new piece of legislation, if the accused is acquitted, the trial judge need not decide the constitutional issue at all. The courts should not decide an issue on a Charter violation unless it cannot be decided on another basis: R. v. Westendorp, [1983] 1 S.C.R. 43 at 46.
17 Generally, however, preliminary motions should be heard and disposed of before or at the commencement of the trial, including motions for unreasonable delay....
22 It is not in the best interests of an accused, nor the state's, to go through unnecessary trials. From the point of view of an accused, they must incur the legal expenses of the trial as well as other expenses related to travel and loss of wages. They also have the stigma of the findings of guilt. Both could have been avoided had a decision been made at the close of argument. From the point of view of the state, there is a public policy advantage in avoiding unnecessary trials. With a timely ruling on the motion, victims and witnesses could have avoided involvement in the process and costs would undoubtedly have been saved throughout....
27 However, where the motion is heard and the trial judge is capable and prepared to rule on the delay motion, that decision should not be deferred until the end of the trial simply in anticipation of being overturned on appeal.
This policy consideration had already been stated earlier by Sopinka in DeSousa, [1992] S.C.J. No. 77 at para 17:
Moreover, in some cases it will save time to decide constitutional questions before proceeding to trial on the evidence. An apparently meritorious Charter challenge of the law under which the accused is charged which is not dependent on facts to be elicited during the trial may come within this exception to the general rule.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
No comments:
Post a Comment