Section 11(b) of the Charter guarantees that "any person charged with an offence has the right ... to be tried within a reasonable time". The relevant period for consideration of a claim of unreasonable delay is between the date of the charge (by information or indictment) and the completion of the trial.
The test for determining if delay is unreasonable comes from R. v. Morin, [1992] 1 S.C.R. 771 and provides the following considerations:
1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay;
(a) the inherent time requirements of the case;
(b) the actions of the accused;
(c) the actions of the Crown;
(d) the limits on institutional resources;
(e) other reasons for delay; and
4. prejudice to the accused.
.
Morin set out the legal framework in which to consider a s. 11(b) application. Justice Sopinka summarized the general approach to be applied at page 787:
The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.
This approach to a s. 11(b) issue was reiterated in R. v. Godin, 2009 SCC 26 (CanLII), 2009 SCC 26:
[18] The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89. Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis.
The decision of the British Columbia Court of Appeal in R. v. Bains, 2010 BCCA 178 (CanLII), released online this week, emphasizes that prejudice must be considered – In Bains the other factors favored a stay but the stay was denied because prejudice was not established. The Court wrote:
4. Prejudice
[60] The Court in Morin stated that prejudice can be inferred from a prolonged delay. This statement was confirmed in Godin where the Court held that a 30-month delay, in the circumstances of that case, was unreasonable. In Godin, the Court summarized its earlier analysis of prejudice within the Morin framework as follows:
[30] Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3.
[31] The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, "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 delay exceeding the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice.
[61] While in this case it would have been better for the trial judge to have begun his analysis by recognizing that prejudice could be inferred from the length of the delay, that oversight could not, in my view, have changed the result. As was noted in Morin at 802, "[a]part ... from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding." Therefore, even where prejudice may be inferred, a court is not obliged to find that it existed if the inference would be inconsistent with the other evidence. Moreover, as part of the final balancing of interests, the court must examine the extent to which any prejudice, inferred or actual, has impacted the three interests protected by s. 11(b).
[62] Here, the appellant did not point to any evidence that might have demonstrated how the delay in fact prejudiced his ability to make full answer and defence. The appellant's liberty interest was impacted by the strict daily reporting provision for the first month of his judicial interim release and some prejudice can be inferred from that restriction. However, that prejudice was minimized when the term of his release was substantially relaxed to a monthly reporting provision for the remaining 44 months of the delay period. The appellant's security of the person interest was also affected by the delay. However, the prejudice from having a criminal charge outstanding is, in the absence of evidence, no more than the stress and cloud of suspicion that accompanies the laying of a criminal charge against any accused. It is the third interest, namely the risk of prejudice to the appellant's right to make full answer and defence that, in my view, distinguishes this case from the circumstances in Godin.
[63] Godin involved a 30-month delay between the date the accused was charged and the date set for trial. The accused was charged with sexual assault and the credibility of the complainant was the central issue. The Crown initially proceeded summarily and a trial date was set in provincial court to commence nine months after the accused was charged. Four days before the start of the trial, the Crown disclosed to the accused a forensic report that indicated the DNA sample taken from the complainant did not match that of the accused. No explanation was given for the late disclosure of the report. The Crown and defence agreed to have the Crown proceed with the charge by indictment to give the accused the opportunity to explore the complainant's evidence. A preliminary hearing date was set for a year later. No explanation was provided for the delay in setting that date. The trial occurred nine months after the preliminary inquiry. Five months before the trial, the accused brought a s. 11(b) application.
[64] The circumstances of this case were significantly different in terms of prejudice. Godin involved prejudice from the nature of the evidence which would likely deteriorate over time and from the late disclosure of exculpatory evidence. The nature of the evidence in this case was from authorized wiretap and search warrants that were in an enduring form. The passage of time would not have affected the reliability of the evidence, and if admissible, would likely result in a conviction.
[65] In short, the risk of prejudice to the appellant's right to make full answer and defence was minimal. While some prejudice can be inferred from the prolonged delay, it did not extend beyond what most accused individuals experience when faced with criminal proceedings. When examined in the context of the interests that s. 11(b) is meant to protect, there was minimal risk of prejudice to the appellant from the delay and the trial judge's finding of no actual prejudice has not been challenged in this appeal. That lack of actual prejudice, in these circumstances, undermines the appellant's claim of prejudice in support his alleged s. 11(b) Charter infringement.
[66] In balancing the interests of the appellant for a trial within a reasonable time and the interests of society to have a serious charge such as this one proceed to trial, I am not persuaded the trial judge erred in concluding that the interests of the latter outweighed the delay to the former. At the end of the day, it was actions of the co-accused that were the primary contributors to the delay before January 7, 2007. Thereafter, the delay was explained by the appellant's counsel's inability to schedule an earlier trial date.
[67] For the same reasons, I am not persuaded that the pre-charge delay of nine months prejudiced the appellant's ability to mount a defence or receive a fair trial, and therefore is not a relevant consideration in the s. 11(b) analysis. See R. v. Fagan (1999), 115 B.C.A.C. 106 at para. 32.
[68] In the result, I am not persuaded that the trial judge erred in finding that the delay was not unreasonable and that a judicial stay of proceedings was not warranted.
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