R. v. MacDougall (P.A.), (1998) 168 Nfld. & P.E.I.R. 83 (SCC)

• Judge: Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Major and Bastarache, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 21, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 168 Nfld. & P.E.I.R. 83 (SCC);[1998] SCJ No 74 (QL);517 APR 83;[1998] CarswellPEI 87;231 NR 147;168 Nfld & PEIR 83;128 CCC (3d) 483;[1998] ACS no 74;JE 98-2197;1998 CanLII 763 (SCC);56 CRR (2d) 189;40 WCB (2d) 40;165 DLR (4th) 193;19 CR (5th) 275;[1998] 3 SCR 45

R. v. MacDougall (P.A.) (1998), 168 Nfld. & P.E.I.R. 83 (SCC);

    517 A.P.R. 83

MLB headnote and full text

French language version follows English language version]

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

....................

Temp. Cite: [1998] Nfld. & P.E.I.R. TBEd. NO.001

Her Majesty The Queen (appellant) v. Patrick Arnold MacDougall (respondent)

(25931)

Indexed As: R. v. MacDougall (P.A.)

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Major and Bastarache, JJ.

October 29, 1998.

Summary:

The accused pleaded guilty to indecent assault in April 1995. The sentencing was delayed primarily because the presiding judge became ill. In May 1996 a second judge was assigned to the case. In July 1996 the accused appeared to set a date for sen­tenc­ing. The matter was adjourned pend­ing the accused's application for a stay of pro­ceed­ings on the ground that there had been an un­reasonable delay in sentencing contrary to s. 11(b) of the Char­ter.

The Prince Edward Island Provincial Court allowed the application and stayed proceed­ings under s. 24 of the Charter. The Crown appealed.

The Prince Edward Island Court of Appeal, in a decision reported 147 Nfld. & P.E.I.R. 193; 459 A.P.R. 193, dismissed the appeal. The Crown appealed again.

The Supreme Court of Canada allowed the appeal and remanded the matter to the Pro­vincial Court for sentencing.

Civil Rights - Topic 3261

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - General - The Supreme Court of Canada stated that the right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter protected both an accused's interests and society's interests - The accused's interests include a liberty interest, a security interest and a fair trial interest - The right to security of the person is protected in s. 11(b) by seek­ing to minimize the anxiety, concern and stigma of exposure to criminal proceedings - The right to liberty is protected by seeking to minimize exposure to the re­strictions on liberty which result from pre-trial incarceration and restrictive bail con­ditions - The right to a fair trial is pro­tected by attempting to ensure that pro­ceedings take place while evidence is available and fresh - See paragraph 29.

Civil Rights - Topic 3261

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - General - The Supreme Court of Canada stated that the right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter protected both an accused's interests and society's inter­ests - The societal interest protected by s. 11(b) has at least two aspects - First, there is a public interest in ensuring a speedy trial, so that criminals are brought to trial and dealt with (possibly through removal from the community) as soon as possible - Second, there is a public interest in ensur­ing that those on trial are dealt with fairly and justly - This societal interest parallels an accused's "fair trial interest" - See paragraph 30.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Waiver of right - The Supreme Court of Canada rejected the argument that when an accused person enters a guilty plea, the s. 11(b) right is waived - See paragraph 57.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - What constitutes "within a reasonable time" - [See all Civil Rights - Topic 3270.05 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - What constitutes "within a reasonable time" - The Supreme Court of Canada discussed the factors set out previ­ously by the court which should be con­sidered in determining whether a delay is unreasonable and in violation of s. 11(b) of the Charter - The court stated that the analysis must not proceed in a mechanical manner and the factors and framework previously set out were not immutable or inflexible - Further the list of factors can never be exhaustive - Nor is an unyielding focus on only certain periods of delay appro­priate - In every case it must be borne in mind that the ultimate question for deter­mination is the reasonableness of the over­all delay - See paragraphs 40 to 61.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - What constitutes "within a reasonable time" - The Supreme Court of Canada stated that the inherent time re­quirements of a case are not limited to commonplace delays which occur in every situation, but may include delay due to extraordinary and unforeseeable events - A trial judge falling ill may be such an event - Where this occurs and where it is not reasonable for the Crown to im­mediately apply to have the judge replaced, the delay due to the judge's illness may be regarded as part of the inherent time required to complete the case - At the point, however, where it is rea­sonable for the Crown to apply to have the judge replaced, the inherent delay due to the judge's illness changes to Crown delay - See paragraphs 45, 46.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - What constitutes "within a reasonable time" - The Supreme Court of Canada discussed the duty on the Crown to ensure that trial proceedings are not unduly delayed when a judge falls ill - There is no set time period after the onset of illness when the Crown must apply to have the judge removed and replaced - Whether and when the Crown should act depends on what is reasonable in the cir­cumstances of the case - The Crown should bring an application to replace the judge when it is clear that the judge will not recover or return to judicial duties - The court also discussed what the Crown should do when a trial judge falls ill and is expected to return - See paragraphs 49 to 52.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - What constitutes "within a reasonable time" - The Supreme Court of Canada stated that trial judges and provin­cial courts of appeal will generally be in the best position to determine whether a delay was unreasonable, given their knowl­edge of the particular circum­stances in their jurisdiction - See para­graph 63.

Civil Rights - Topic 3270.05

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Sentencing delay - Sec­tion 11(b) of the Charter provided that any person charged with an offence had the right to be tried within a reasonable time - The Supreme Court of Canada held that s. 11(b) extended to sentence delay - See paragraphs 9 to 39.

Civil Rights - Topic 3270.05

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Sentencing delay - The Supreme Court of Canada discussed when delay in sentencing related to a judge's illness constituted a violation of s. 11(b) of the Charter - See paragraphs 40 to 61.

Civil Rights - Topic 3270.05

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Sentencing delay - In December 1994, the accused was charged with indecent assault relating to a 1973 incident - In April 1995 he pleaded guilty - In July 1995 the sentencing was adjourned indefinitely due to illness of the Provincial Court judge, who resigned in April 1996 - In May 1996 a second judge was assigned and the sentencing was scheduled for September - However, the second judge stayed proceedings because there had been an unreas­onable delay in sentencing contrary to s. 11(b) of the Charter - The Crown appealed - The Supreme Court of Canada allowed the appeal - The court held that the right to be tried within a reasonable time extended to sentencing, however, in these circum­stances and the nature of the delay which transpired, the delay was not un­reasonable - See para­graphs 62 to 72.

Civil Rights - Topic 3270.06

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Where judge becomes ill - [See third and fourth Civil Rights - Topic 3265 and second and third Civil Rights - Topic 3270.05 ].

Civil Rights - Topic 8545

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Charged with an offence - Sec­tion 11(b) of the Charter provided that any person "charged with an offence" had the right to be tried within a reasonable time - The Supreme Court of Canada held that s. 11(b) extended to sentencing (i.e., the phrase "charged with an offence", in the context of s. 11(b) is not confined to the period before entry of a guilty plea and may extend to the sentencing process) - See paragraphs 9 to 18.

Civil Rights - Topic 8545

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Charged with an offence - Sec­tion 11 of the Charter provided that any person "charged with an offence" had the certain rights - The Supreme Court of Canada stated that it may be, depend­ing on the subsection of s. 11 at issue, that "charged with an offence" in s. 11 bears different meanings - See paragraph 16.

Civil Rights - Topic 8545

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Charged with an offence - Sec­tion 11 of the Charter provided that any person "charged with an offence" had the certain rights including the right to be tried within a reasonable time - The Supreme Court of Canada stated that "'charged with an offence' cannot be restricted to a par­ticular phase of the cri­minal process. Rather, what is required is an interpretation that 'harmonizes as much as possible' all of the subsections of s. 11 ... Textually, the only feasible interpreta­tion of 'charged with an offence' is an expansive one which includes both the pre-conviction and post-conviction periods." - See paragraph 11.

Civil Rights - Topic 8545.1

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Tried within a reasonable time - Section 11(b) of the Charter provided that any person charged with an offence had the right to be "tried within a reasonable time" - The Supreme Court of Canada held that the word "tried" in s. 11(b) extended to sentencing - See paragraphs 19 to 27.

Words and Phrases

Charged with an offence - The Supreme Court of Canada discussed the meaning of the phrase "charged with an offence" as it was used in s. 11 of the Canadian Charter of Rights and Freedoms, 1982 - See paragraphs 11 to 18.

Words and Phrases

Tried within a reasonable time - The Supreme Court of Canada discussed the meaning of the phrase "tried within a reasonable time" as it was used in s. 11(b) of the Canadian Charter of Rights and Freedoms, 1982 - See paragraphs 19 to 27.

Cases Noticed:

R. v. Bosley (M.) (1992), 59 O.A.C. 161 (C.A.), refd to. [para. 7].

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81, refd to. [para. 11].

R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191, refd to. [para. 12].

R. v. Head, [1986] 2 S.C.R. 684; 70 N.R. 364, refd to. [para. 13].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 14].

Wilbrand v. R., [1967] S.C.R. 14, refd to. [para. 15].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 19].

R. v. Grant, [1951] 1 K.B. 500, refd to. [para. 20].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 20].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 23].

Conway v. Canada - see Weatherall v. Canada (Attorney General).

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 24].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 24].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 24].

R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241, refd to. [para. 25].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 29].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 29].

Gonzales v. State (1978), 582 P.2d 630 (Alaska S.C.), refd to. [para. 38].

Dickey v. Florida (1970), 398 U.S. 30, refd to. [para. 38].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 40].

R. v. Allen (H.D.) (1996), 92 O.A.C. 345; 1 C.R.(5th) 347 (C.A.), affd. [1997] 3 S.C.R. 700; 220 N.R. 67; 104 O.A.C. 237, refd to. [para. 45].

R. v. Stensrud and Smith (G.W.), [1989] 2 S.C.R. 1115; 103 N.R. 191; 81 Sask.R. 293, refd to. [para. 63].

R. v. Trudel, [1992] R.J.Q. 2647 (C.A.), refd to. [para. 69].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(a), sect. 11(b), sect. 11(c), sect. 11(d), sect. 11(e), sect. 11(f), sect. 11(g), sect. 11(h), sect. 11(i) [para. 5].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (4th 1997), p. 820 [para. 24].

Mitchell, Graeme G., Potvin: Charter-Proofing Criminal Appeals (1993), 23 C.R.(4th) 37, p. 40 [para. 12].

Renke, Wayne, Deferring Delay: A Com­ment on R. v. Potvin (1994), 5 Constit. Forum 16, generally [para. 12].

Counsel:

Valerie A. Moore, for the appellant;

W. Kent Brown, Q.C., and Thane A. Mac­Eachern, for the respondent.

Solicitors of Record:

Crown Attorney's Office, Charlottetown, Prince Edward Island, for the appellant;

Prince Edward Island Legal Aid, Charlottetown, Prince Edward Island, for the respondent.

This appeal was heard on May 21, 1998, before Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Major, and Bastarache, JJ., of the Supreme Court of Canada. The following decision was delivered for the court in both official lan­guages by McLachlin, J., on October 29, 1998.