R. v. MacIntosh (E.F.), (2013) 329 N.S.R.(2d) 395 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Moldaver and Karakatsanis, JJ.
• Court: Supreme Court of Canada
• Case Date: April 22, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 329 N.S.R.(2d) 395 (SCC);2013 SCC 23;296 CCC (3d) 480;359 DLR (4th) 591;[2013] 2 SCR 200

R. v. MacIntosh (E.F.) (2013), 329 N.S.R.(2d) 395 (SCC);

    1042 A.P.R. 395

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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Temp. Cite: [2013] N.S.R.(2d) TBEd. AP.035

Her Majesty the Queen (appellant) v. Ernest Fenwick MacIntosh (respondent) and Attorney General of Canada (intervenor)

(34650; 2013 SCC 23; 2013 CSC 23)

Indexed As: R. v. MacIntosh (E.F.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Moldaver and Karakatsanis, JJ.

April 22, 2013.

Summary:

MacIntosh was charged on three informations with a total of 43 counts of sexual offences against nine complainants in the 1970s. The first information was laid in 1995 and the remaining two in 2001. At the time, MacIntosh was living in India. The Crown sought extradition. MacIntosh was returned to Canada. MacIntosh sought an order prohibiting the Provincial Court from proceeding with the informations.

The Nova Scotia Supreme Court, in a judgment reported (2008), 266 N.S.R.(2d) 121; 851 A.P.R. 121, dismissed the application. MacIntosh appealed the dismissal and asked the Court of Appeal to stay the preliminary inquiry pending the determination of the appeal.

The Nova Scotia Court of Appeal, per Bateman, J.A., in a judgment reported (2008), 268 N.S.R.(2d) 131; 857 A.P.R. 131, dismissed the application. The appeal proceeded.

The Nova Scotia Court of Appeal, in a judgment reported (2008), 72 N.S.R.(2d) 286; 869 A.P.R. 286, dismissed the appeal. MacIntosh applied for a stay of proceedings under ss. 7 and 11(b) of the Charter, asserting unreasonable pre-charge and post-charge delay.

The Nova Scotia Supreme Court, in a judgment reported (2010), 289 N.S.R.(2d) 224; 916 A.P.R. 224, dismissed the application. The trial proceeded on 26 counts regarding three complainants.

The Nova Scotia Supreme Court, in a judgment reported (2010), 292 N.S.R.(2d) 355; 925 A.P.R. 355, convicted MacIntosh on 13 counts and acquitted him on 13 counts. The accused appealed from the dismissal of his application for a stay and from the convictions.

The Nova Scotia Court of Appeal, in a judgment reported (2011), 310 N.S.R.(2d) 274; 983 A.P.R. 274, found an infringement of the accused's right to be tried within a reasonable time under s. 11(b) of the Charter, allowed the appeal, and granted a stay of proceedings. Were it necessary to do so, the court would have quashed the convictions and ordered a new trial. The Crown appealed.

The Supreme Court of Canada dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Denial of right - [See Civil Rights - Topic 3265 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Within a reasonable time - What constitutes - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under s. 11(b) of the Charter on the basis of unreasonable post-charge delay was dismissed - The Nova Scotia Court of Appeal allowed the appeal and granted a stay of proceedings - Having found that the application judge had erred in law in not applying the correct principles, it fell to the court to do so - The length of the delay was 14 years, an inordinately long time - MacIntosh had not waived any of the time periods - The inherent time requirements were around four years, including the requirement for extradition - MacIntosh's inaction in not turning himself in and the delay in making fundamental decisions as to mode of election pending proper disclosure from the Crown were not attributable to MacIntosh - The vast majority of the delay was caused by the Crown in delaying pursuit of extradition - This was unexplained - Further, there was a "virtually irrebutable" inference of prejudice or the risk of prejudice - MacIntosh was subject to physical abuse while incarcerated and, even after release, was on very restrictive bail conditions - The delay and circumstances here constituted an infringement of s. 11(b) - The minimum remedy was a stay of proceedings - The Supreme Court of Canada, for the reasons stated by the Court of Appeal, agreed that the accused's right to be tried within a reasonable time had been infringed.

Civil Rights - Topic 3266

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Obligation to avoid unreasonable delay (incl. expediting hearing) - [See second and seventh Civil Rights - Topic 3270 ].

Civil Rights - Topic 3267

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Onus on accused - [See fourth and sixth Civil Rights - Topic 3270 ].

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - [See Civil Rights - Topic 3265 ].

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under s. 11(b) of the Charter on the basis of unreasonable post-charge delay was dismissed - The Nova Scotia Court of Appeal allowed the appeal and granted a stay of proceedings - The application judge concluded that the period of time from the laying of charges to extradition (1995 to 2007) was attributable to MacIntosh because an accused who was aware that he would face charges if he returned to the country, yet chose not to return, could not seek to have that time counted against the Crown - This was not correct - The application judge wrongly placed an onus on MacIntosh to turn himself in - In the context of a right to trial within a reasonable time, there was no duty on the accused to bring himself or herself to trial - While actions by an accused that caused or contributed to delay were assessed in examining the overall delay, inaction was not - Inaction could be considered when assessing the degree of prejudice - Here, the extradition package was ready in 2003, but was not forwarded to India until 2006 - That delay was unexplained - There was uncontradicted evidence that the Crown knew in 1996 that MacIntosh would not return voluntarily - There was no evidence as to why it took years to move ahead - No assessment was undertaken by the application judge about this delay beyond attributing it to MacIntosh - The application judge erred in law in doing so - The Supreme Court of Canada, for the reasons stated by the Court of Appeal, agreed that the accused's right to be tried within a reasonable time had been infringed.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under s. 11(b) of the Charter on the basis of unreasonable post-charge delay was dismissed - The Nova Scotia Court of Appeal allowed the appeal and granted a stay of proceedings - Regarding the period from extradition (June 2007) to trial (October 2009), the application judge erred in attributing 11 months of the delay to MacIntosh - This attribution resulted from misapprehending the evidence which led to a plainly erroneous attribution - The disclosure requests made by MacIntosh from June 2007 to May 2008 were not, as the application judge indicated, "simply seeking material with respect to motions [MacIntosh] wanted to bring to challenge the extradition process and a request for a second bail hearing" - Delay while waiting for the Crown to comply with basic disclosure obligations was attributable to the Crown - After MacIntosh was returned to Canada, over 12 months of the delay to trial was attributable to the Crown - The remainder of the time was attributable to the inherent time requirements of the case - The Supreme Court of Canada, for the reasons stated by the Court of Appeal, agreed that the accused's right to be tried within a reasonable time had been infringed.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under s. 11(b) of the Charter on the basis of unreasonable post-charge delay was dismissed - The Nova Scotia Court of Appeal allowed the appeal and granted a stay of proceedings - The application judge failed to apply the proper principles in his assessment of prejudice in light of the overall length of delay - He placed an evidentiary burden on MacIntosh to establish that his fair trial rights were impacted by the post-charge delay - While he accepted that it was "probable" that the delay would affect the quality of some evidence, he then simply said, "The trial judge will assess that evidence" - He should have considered the impact of the overall delay on MacIntosh's ability to make full answer and defence in the context of the risk of prejudice on his ability to lead evidence, cross-examine or otherwise raise a defence - The Supreme Court of Canada, for the reasons stated by the Court of Appeal, agreed that the accused's right to be tried within a reasonable time had been infringed.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under s. 11(b) of the Charter on the basis of unreasonable post-charge delay was dismissed - The Nova Scotia Court of Appeal allowed the appeal and granted a stay of proceedings - In concluding that the post-charge delay did not justify a stay of proceedings, the application judge explained that the "suggested prejudice to [MacIntosh] at trial is nebulous" - It was accepted that MacIntosh suffered little or no prejudice to his liberty and security interests while in India - However, he suffered considerably once he was returned to Canada, including physical abuse while he was incarcerated, extensive and "wildly inaccurate" reporting about the allegations and very restrictive bail conditions once he was on interim release - This was not prejudice that derived "from the laying of the charges rather than delay" - The incarceration and restrictive bail conditions caused significant prejudice to MacIntosh's liberty and security interests which continued, unnecessarily, throughout the 12 month delay caused by the Crown's failure to comply with disclosure obligations - The Supreme Court of Canada, for the reasons stated by the Court of Appeal, agreed that the accused's right to be tried within a reasonable time had been infringed.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under s. 11(b) of the Charter on the basis of unreasonable post-charge delay was dismissed - The Nova Scotia Court of Appeal allowed the appeal and granted a stay of proceedings - Ordinarily, the balancing of competing interests in considering whether a violation of the right to trial within a reasonable period of time had been infringed was entitled to deference - However, here, the application judge failed to identify and apply the correct legal principles - Most notable was his insistence that MacIntosh was responsible for the "unfortunate delay" - Further, the application judge required MacIntosh to prove actual prejudice caused by the post-charge delay - This was the correct approach where an accused sought a stay of proceedings based on pre-charge delay - While it was also correct to say that an accused had the overall burden of persuasion to establish that his or her right to trial within a reasonable period of time had been infringed with respect to post-charge delay, that did not mean they had the burden of establishing actual prejudice to their ability to make full answer and defence - A risk of prejudice was enough - The Supreme Court of Canada, for the reasons stated by the Court of Appeal, agreed that the accused's right to be tried within a reasonable time had been infringed.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - MacIntosh was charged with sexual offences that occurred in the 1970s - The first information was laid in 1995 and the remaining two in 2001 - At the time, MacIntosh was living in India - The Crown sought extradition - MacIntosh was returned to Canada - A trial was scheduled for April 2010 - MacIntosh's application for a stay of proceedings under s. 11(b) of the Charter on the basis of unreasonable post-charge delay was dismissed - The Nova Scotia Court of Appeal allowed the appeal and granted a stay of proceedings - In light of the very lengthy delay from the laying of the charges to trial, the inference was plainly there to be drawn that MacIntosh would be prejudiced, or there was at least a risk of prejudice in meeting the case to be advanced by the Crown - Even taking into account the increased time inherent in the case due to inaction by MacIntosh in returning to Canada, the length of the delay was extraordinary, particularly in light of the already lengthy pre-charge delay - In cases where there had already been such a delay, there needed to be an added sensitivity and urgency in bringing an accused to trial - There was no such urgency exhibited by the Crown here - The Crown had not proceeded with due diligence - The Supreme Court of Canada, for the reasons stated by the Court of Appeal, agreed that the accused's right to be tried within a reasonable time had been infringed.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3265 ].

Counsel:

[not disclosed.]

Solicitors of Record:

[not disclosed.]

This appeal was heard on April 22, 2013, before McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada.

On April 22, 2013, McLachlin, C.J.C., delivered the following judgment orally in both official languages for the Court.