R. v. Askov, Hussey, Melo and Gugliotta, (1990) 113 N.R. 241 (SCC)

• Judge: Dickson, C.J.C., Lamer, C.J.C.*, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 18, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 113 N.R. 241 (SCC);[1990] SCJ No 107 (QL);29 RFL (3d) 337;EYB 1990-67822;[1990] 2 SCR 1259;4 CBR (3d) 113;[1990] RDF 660;JE 90-1502;[1990] 2 SCR 1199;AZ-90111110;74 DLR (4th) 61;1990 CanLII 46 (SCC);AZ-90111107;1990 CanLII 45 (SCC);75 OR (2d) 673;74 DLR (4th) 355;59 CCC (3d) 449;79 CR (3d) 273;113 NR 241;[1990] CarswellOnt 111;JE 90-1515;[1

R. v. Askov (1990), 113 N.R. 241 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Elijah Anton Askov, Ralph Hussey, Samuel Gugliotta and Edward Melo (appellants) v. Her Majesty The Queen (respondent)

(20560)

Indexed As: R. v. Askov, Hussey, Melo and Gugliotta

Supreme Court of Canada

Dickson, C.J.C., Lamer, C.J.C.*, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.

October 18, 1990.

Summary:

The accused were arrested in November 1983. Their preliminary commenced in July 1984 and concluded in September 1984. They were committed to stand trial. The trial was set for October 1985, but was put over until October 1986. The two year delay between committal and trial was caused by the inability of the judicial system to efficiently handle the growing caseload in that district (systemic delay). In October 1986, the accused applied for a stay of proceedings under s. 24 of the Charter of Rights and Freedoms on the ground that they were denied their right to be tried within a reasonable time under s. 11(b) of the Charter.

The Ontario District Court held that the accused's right to be tried within a reasonable time was denied and the court stayed the proceedings. The Crown appealed.

The Ontario Court of Appeal, in a judgment reported 22 O.A.C. 299, allowed the appeal and directed that the trial proceed. The court held that the accused's right to be tried within a reasonable time had not been denied. The accused appealed.

The Supreme Court of Canada allowed the appeal and restored the stay of proceedings.

*(Editor's note: Dickson, C.J.C., was Chief Justice at the time of the hearing; Lamer, C.J.C., was Chief Justice at the time of judgment.)

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - A factor considered in determining whether an accused's s. 11(b) Charter rights were denied was any waiver of the delays by the accused - The Supreme Court of Canada stated that "if the accused waives his rights by consenting to or concurring in a delay, this must be taken into account. However, for a waiver to be valid it must be informed, unequivocal and freely given. The burden of showing that a waiver should be inferred falls upon the Crown. An example of a waiver or concurrence that could be inferred is the consent by counsel for the accused to a fixed date for trial" - See paragraphs 64 to 69.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - Accused arrested in November 1983 were committed to stand trial in September 1984 - The earliest trial date was two years away, because of inadequate institutional resources to meet the caseload in that particular judicial district - Statistical data indicated that this district was the worst in Canada for delays and was not improving - The accused had not objected because it was futile - Neither the accused nor Crown counsel were at fault - The Supreme Court of Canada held that the accused's right to be tried within a reasonable time was denied and ordered a stay of proceedings - See paragraphs 70 to 109.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - The Supreme Court of Canada stated that the factors to be considered in determining whether an accused's s. 11(b) Charter right was denied were (1) the length of the delay; (2) the explanation for the delay, including the conduct of the accused and Crown, and any systemic or institutional delays; (3) any waiver by the accused of his right to be tried within a reasonable time; and (4) any prejudice to the accused - See paragraphs 50 to 69.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - The Supreme Court of Canada stated that "s. 11(b) explicitly focuses upon the individual interest of liberty and security of the person. Like other specific guarantees provided by s. 11, this paragraph is primarily concerned with an aspect of fundamental justice guaranteed by s. 7 of the Charter" - The court also stated that there was "a community or societal interest implicit in s. 11(b) ... First, there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Second, those individuals on trial must be treated fairly and justly" - See paragraphs 43 to 44.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - A factor considered in determining whether an accused's s. 11(b) Charter right was denied was the length of the delay - The Supreme Court of Canada stated that "the longer the delay, the more difficult it should be for a court to excuse it. Very lengthy delays may be such that they cannot be justified for any reason" - See paragraph 50.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - A factor considered in determining whether an accused's s. 11(b) Charter right was denied was the delay attributable to Crown conduct - The Supreme Court of Canada stated that such delay weighed heavily in the accused's favour - Complex cases requiring longer time for preparation, a greater expenditure of resources by Crown officers and longer use of institutional facilities would justify delays longer than those that would be acceptable in simple cases - See paragraphs 52 to 54.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - A factor considered in determining whether an accused's s. 11(b) Charter right was denied was systemic or institutional delays - The Supreme Court of Canada stated that inadequate institutional resources could not justify continuing unreasonable delays - There was no uniform Canadian standard as to what delay was reasonable - Reasonableness involved a comparison with the best comparable districts in the country - The comparison should produce an appropriate range of delay to determine what was a reasonable limit - The court stated that the Crown had the onus of justifying such delay - See paragraphs 54 to 61.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - A factor considered in determining whether an accused's s. 11(b) Charter right was denied was the delay attributable to the accused's conduct - The Supreme Court of Canada stated that "an inquiry into the actions of the accused should be restricted to discovering those situations where the accused's acts either directly caused the delay ..., or the acts of the accused are shown to be a deliberate and calculated tactic to delay the trial" - The court stated that the Crown had the burden of proving that the accused's direct acts caused the delay - See paragraphs 62 to 63.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - A factor considered in determining whether an accused's s. 11(b) Charter right was denied was prejudice to the accused - The Supreme Court of Canada stated that "there is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time. Where the Crown can demonstrate that there was no prejudice to the accused flowing from a delay, then such proof may serve to excuse the delay. It is also open to the accused to call evidence to demonstrate actual prejudice to strengthen his position that he has been prejudiced as a result of the delay" - See paragraphs 67 to 69.

Cases Noticed:

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 26 C.C.C.(3d) 481, consd. [para. 13].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, consd. [para. 13].

Barker v. Wingo (1972), 407 U.S. 514, refd to. [para. 16].

R. v. Antoine (1983), 5 C.C.C.(3d) 97 (Ont. C.A.), refd to. [para. 20].

R. v. Beason (1983), 7 C.C.C.(3d) 20 (Ont. C.A.), refd to. [para. 20].

R. v. Heaslip (1983), 1 O.A.C. 81; 9 C.C.C.(3d) 480 (C.A.), refd to. [para. 20].

R. v. Dennis, Kubin and Frank (1984), 55 A.R. 366; 14 D.L.R.(4th) 205 (N.W.T.C.A.), refd to. [para. 20].

R. v. Belton (1982), 3 C.C.C.(3d) 427 (Man. C.A.), refd to. [para. 20].

R. v. Perry (1984), 56 N.B.R.(2d) 361; 146 A.P.R. 361; 14 C.C.C.(3d) 5 (C.A.), refd to. [para. 20].

Kott & The Queen, Re (1983), 7 C.C.C.(3d) 317 (Que. C.A.), refd to. [para. 20].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, consd. [para. 34].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, consd. [para. 39].

R. v. Korponay, [1982] 1 S.C.R. 41; 44 N.R. 103, refd to. [para. 65].

R. v. Park, [1981] 2 S.C.R. 64; 37 N.R. 501, refd to. [para. 65].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, refd to. [para. 113].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(b), sect. 24(1).

Criminal Code, R.S.C. 1985, c. C-46, sect. 599(1)(a), sect. 599(3) [para. 95].

Authors and Works Noticed:

Doherty, National Criminal Law Program Paper (1989), generally [para. 48].

Howland, W.G.C., Reports on the Administration of Justice in Ontario on the Opening of the Courts for 1990 (1990), 24 L. Soc. Gaz. 5, p. 7 [para. 81].

Zuber, T.G., Report of the Ontario Courts Inquiry (1987), pp. 54 [para. 77]; 73 [para. 48]; 190-193 [para. 77].

Counsel:

Michael Code, for the appellant, Askov;

Clayton Ruby, for the appellant, Hussey;

David McCombs and David E. Harris, for the appellant, Gugliotta;

Joseph Bloomenfeld, for the appellant, Melo;

Brian Trafford, Q.C., and Susan Chapman, for the respondent.

Solicitors of Record:

Ruby & Edwardh, Toronto, Ontario, for the appellants, Askov and Hussey;

Carter, McCombs and Linden, Toronto, Ontario, for the appellant, Gugliotta;

Bloomenfeld, Garton, Toronto, Ontario, for the appellant, Melo;

W. Brian Trafford, Toronto, Ontario, for the respondent.

Counsel:

[None disclosed.]

This appeal was heard on March 23, 1990, before Dickson, C.J.C., Lamer, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ., of the Supreme Court of Canada.

On October 18, 1990, the judgment of the Supreme Court of Canada was delivered  in both official languages and the following opinions were filed:

Cory, J. (Dickson, C.J.C., La Forest, L'Heureux-Dubé and Gonthier, JJ., concurring) - see paragraphs 1 to 110;

Lamer, C.J.C. - see paragraphs 111 to 122;

Wilson, J. - see paragraphs 123 to 133;

Sopinka, J. - see paragraph 134;

McLachlin, J. - see paragraphs 135 to 142.