R. v. Conway, [1989] 1 S.C.R. 1659 (1989)

Supreme Court of Canada

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R. v. Conway, [1989] 1 S.C.R. 1659 (1989)

R. v. Conway, [1989] 1 S.C.R. 1659

Scott Conway Appellant v.

Her Majesty The Queen Respondent indexed as: r. v. conway

File No.: 20877.

1988: December 16; 1989: June 22.

Present: Dickson C.J. and Lamer, La Forest, L'Heureux-Dubé and Sopinka JJ.

on appeal from the court of appeal for ontario

Constitutional law -- Charter of Rights -- Trial within a reasonable time -- Five-year period between charge and commencement of third trial -- Whether accused's right to be tried within a reasonable time has been infringed -- Canadian Charter of Rights and Freedoms, s. 11(b).

Criminal law -- Abuse of process -- Crown seeking to try accused for a third time on same murder charge -- Five-year period between charge and commencement of third trial -- Crown objecting to accused's re-election for a trial before a judge alone -- Crown not consenting to accused's plea to manslaughter -- Whether a third trial in these circumstances constitutes an abuse of process.

Appellant was charged with first degree murder on August 29, 1982 and convicted of second degree murder in December 1983. Thirteen months later, the Court of Appeal set aside the verdict and ordered a new trial. The second trial was set to commence on January 7, 1986. In December 1985, however, appellant's counsel was removed from the record and appellant was granted an adjournment to April 21, 1986, as he had been unable to retain new counsel. The jury failed to reach a verdict at the second trial and a mistrial was declared. The new counsel then informed the appellant that he could no longer represent him in proceedings held in Ottawa. Appellant sought to obtain a change of venue to Toronto but the application was opposed by the Crown and dismissed in August 1986. In the interim, the third trial had been set for September 22, 1986. At that time, appellant was still without counsel and, despite the Crown's objection, the trial was adjourned to November 10, 1986. Appellant found and ultimately retained a third counsel and, in order to accommodate counsel's schedule, the trial date was postponed to April 21, 1987. On that date, the Crown objected to appellant's application to re-elect to be tried before a judge alone. The same issue was before the Court of Appeal and the trial judge adjourned the matter to await its decision. At the onset of the third trial, on October 26, 1987, appellant entered a plea of not guilty on the charge of murder but guilty on the lesser included offence of manslaughter. The plea was not accepted by the Crown because the appellant would not agree to a joint submission for a sentence of 15 years. The appellant then brought an application to stay arguing that (1) holding a third trial in the circumstances would constitute an abuse of process and (2) his right to be tried within a reasonable time guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms had been violated given the time elapsed since the beginning of the proceedings. The trial judge held that appellant's s. 11(b) right had been infringed and ordered a stay of proceedings. The Court of Appeal set aside the order staying the proceedings and directed a new trial to proceed.

Held (Sopinka J. dissenting): The appeal should be dismissed.

Per Dickson C.J. and La Forest and L'Heureux-Dubé JJ.: A trial judge has a discretion to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings. While the doctrine of abuse of process is not limited to prosecutorial misconduct or improper motive, the prosecution in this case did not constitute an abuse of process. The judge's power to stay proceedings may only be exercised in the clearest of cases.

The main purpose of s. 11(b) of the Charter is to minimize the adverse effect on the person charged resulting from the pending disposition of an unresolved criminal charge. The focus of the protection is the impairment or prejudice arising from the delay in processing or disposing of the charges against an accused and not the impairment or prejudice arising from the fact that he has been charged. The cut-off point after which a delay becomes unreasonable must be determined by balancing a number of factors including, among the most important ones, the prejudice suffered by the accused, the waiver of time periods, the inherent time requirements and the limitations on institutional resources. In deciding a s. 11(b) claim, the correct approach is to evaluate the reasonableness of the overall lapse of time. A piecemeal analysis is generally not appropriate. As with other Charter guarantees, the individual claiming an infringement of his rights must persuade the court that the circumstances fall within the scope of protection of the specific Charter provisions. Under s. 11(b), the scope of protection is demarcated by the reasonableness of th...

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