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

Docket Number:20877

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 The new counsel then informed the appellant that he could no longer represent him in proceedings held in Ottawa.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 the total lapse of time. There is no reason to require as a rule that the onus shift from the accused to the Crown at the threshold of "prima facie unreasonability".

Proceeding on the basis that s. 11(b) of the Charter extends to appellate proceedings, appellant's right to be tried within a reasonable time has not been infringed. The total five-year period resulted, for the most part, from the choices made by appellant in the conduct of his defence, as well as from the delays inherent in a trial, appeal and retrial on a murder charge. Appellant unequivocally requested, caused and consented to the delays between the date initially set for the second trial and the onset of the third. During that period, several adjournments were granted to accommodate appellant's need for legal representation. While appellant had the right to be represented by counsel of choice, the delays incurred in so doing could not be invoked in this case in his s. 11(b) claim. The same was true of the considerable delays resulting from appellant's pre-trial motion to re-elect for a trial before a judge alone. For the purpose of assessing the reasonableness under s. 11(b), an accused, and the Crown as well, must bear the consequences of their tactical decisions in the conduct of the trial. As regards prejudice, assuming that such prejudice is relevant in a claim made under s. 11(b), there was no evidence in the record that appellant would be prevented from having a fair trial. Balancing the delays, the prejudice to the appellant flowing from the passage of time, especially such passage of time which is not attributable to him, the nature and reasons for the delays, and the nature of the charge and other circumstances of the case, it could not be concluded that the overall lapse of time brings the appellant within the scope of s. 11(b).

Per Lamer J.: Section 11(b) of the Charter gives an accused the right to be tried within a reasonable time. The fundamental purpose of the section is to protect the rights set forth in s. 7. The concept of security of the person, in the context of s. 11(b), is not restricted to physical integrity but encompasses protection against overlong subjection to the vexations and vicissitudes of a pending criminal accusation. Actual impairment of an accused's security interest need not be proven to render s. 11(b) operative. An objective standard is the only realistic means through which the security interest of the accused may be protected under the section. The impairment of the accused's defence is not a factor to be considered under s. 11(b). The accused's right to mount a full and fair defence is more properly related to the right to a fair trial under s. 11(d) of the Charter.

To determine whether an accused's right under s. 11(b) has been infringed, the court should adopt a reasonableness test which involves a balancing of the inherent impairment of the accused's interest as of the moment he is charged from the very fact of being prosecuted, such impairment becoming increasingly pronounced with the passage of time, against three other factors that may justify the delay, or continued impairment of the accused's interests: (1) waiver of time periods; (2) time requirements inherent in the nature of the case, and (3) limitations to institutional resources. The facts relevant to the waiver of delays and limitations to institutional resources, however, must be evaluated during the transitional period, which, in this case, ended May 14, 1987 (the date the judgment of this Court in Rahey was handed down), keeping in mind court practices on the part of counsel and of court officials. Indeed, it would be inaccurate to give meaning or the same probative value to behaviour which occurred or court records which were held prior to that judgment against a standard whose parameters were unknown to all. Finally, a finding that the delay involved is prima facie excessive is not a condition precedent to the inquiry into reasonableness of the delay.

Here, appellant's s. 11(b) right has not been infringed. Most of the delay is easily explained by the fact that the appellant did not object to any of the additional delays and in fact requested many of them. During the transitional period, where there is not an indication in the record of an objection by the accused or defence counsel, that silence should generally be construed as acquiescence in the delay. There is therefore waiver as regards those periods of time extending to May 14, 1987. The delays requested by the appellant during the same period, either when represented or not, constituted also a waiver of time. The appellant waived them clearly and unequivocally with full knowledge of his rights and the courts carried out their duty to ensure to their satisfaction that his waiver of time was clear, unequivocal and informed. Concerning the period extending from May 14, 1987 to October 26, 1987, the delays were also justified.

Per Sopinka J. (dissenting): In the circumstances of this case, the...

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