Colin Wood, “The Inflexible Stay of Proceedings: Alternative Remedies

Digital Companion Volume 2, (Winter 2016) Article 5 THE INFLEXIBLE STAY OF PROCEEDINGS: ALTERNATIVE REMEDIES FOR CHARTER SECTION 11(b) BREACHES Colin Wood Copyright © Windsor Review of Legal and Social Issues 2016 All rights reserved. No part of this journal may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without permission from the editors. Reproduction of this material without authorization is a violation of copyright. Citation Information Colin Wood, “The Inflexible Stay of Proceedings: Alternative Remedies for Charter for Section 11(b) Breaches” (2016) 2 Windsor Rev Legal Soc Issues—Digital Companion 80. Volume 2 The Inflexible Stay of Proceedings 80 THE INFLEXIBLE STAY OF PROCEEDINGS: ALTERNATIVE REMEDIES FOR CHARTER SECTION 11(b) BREACHES Colin Wood* I. OVERVIEW Delay is a clear enemy to the fair trial of an accused in Canada. When many months or years elapse between an accused’s arrest and the date they stand trial, numerous undesirable consequences follow; memories fade and witnesses move away, die, or become otherwise unavailable. As a result, an accused may suffer an intolerable custodial environment without having ever been convicted of a crime.1 Section 11(b) of the Canadian Charter of Rights and Freedoms codifies the right of any person charged with an offence to be tried within a reasonable time.2 In the years following the proclamation of the Charter in 1982, considerable litigation has examined the meaning of the right in practical terms and prescribed a remedy to be applied in cases of a breach. This remedy is the stay of proceedings. The Supreme Court of Canada has ruled that the stay is the minimal remedy available where an accused’s section 11(b) right has been breached.3 Where a breach of section 11(b) is established following an application of the test in R v Morin, a trial judge must balance the public interest on the merits against the accused’s right to be tried within a reasonable time.4 Despite the Supreme Court of Canada’s pronouncement that a breach of this right should be remedied minimally by a stay, this balancing exercise nevertheless allows a trial judge to direct a trial if it serves the public or societal interest. In such a case, other remedies for the breach are theoretically unavailable to the accused, as the stay is the required minimal remedy. This is an unsatisfactory and unnecessary status quo. While I do not propose a change in the current application of the stay where a fair trial is no longer possible and the only appropriate remedy is a stay of the proceedings, an accused should not be left without any recourse where a breach has occurred and the trial nevertheless proceeds. An accused should be entitled to an alternative section 24(1) remedy in such circumstances. Several alternative remedies are suggested below, including sentence reduction, enhanced credit for pre-sentence custody, damages, and the exclusion of evidence. The Supreme Court of Canada pronouncement of the stay as a minimal remedy should be revisited, while alternative remedies should be examined for their application in unreasonable delay cases. * Colin Wood graduated from the University of Windsor, Faculty of Law in June 2015. This paper was prepared for the Criminal Law and the Charter course at the University of Windsor. Colin is currently completing his articles with the Superior Court of Justice in Brampton, Ontario. The opinions expressed in this paper are solely those of the author and do not in any way reflect the views of the Ontario Superior Court of Justice or the Ministry of the Attorney General. 1 R v Askov, [1990] 2 SCR 1199 at 1220, 1990 CanLII 45 [Askov]. 2 Canadian Charter of Rights and Freedoms, s 11(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 3 R v Rahey, [1987] 1 SCR 588 at 614, 1987 CanLII 52 [Rahey]. See also Mills v The Queen, [1986] 1 SCR 863 at 948, 1986 CanLII 17 Lamer J, dissenting [Mills]. 4 [1992] 1 SCR 771 at 786-87, 1992 CanLII 89 [Morin]. Volume 2 The Inflexible Stay of Proceedings 81 II. THE ADOPTION OF THE STAY AS A MINIMAL REMEDY Edward Greenspan and Michael Lacy note that at the time of the proclamation of the Charter, the notion of a right to a trial within a reasonable time was novel in the Canadian legal landscape.5 Prior to the enactment of the Charter, an accused in custody facing a lengthy pre- trial delay could seek a writ of habeas corpus as a remedy if the detention was unreasonable or unlawful.6 A successful habeas corpus application might lead to an accused’s release or cause them to experience a less restrictive form of custody. However, it fails to remedy any prejudice accruing to their right to a fair trial as a result of the delay. Further, Greenspan and Lacy note that a remedy could be sought under the abuse of process doctrine in cases where excessive or unexplained delays were experienced by the accused before trial.7 The Canadian theoretical approach to the right has largely reflected American Sixth Amendment jurisprudence, beginning with the first delay cases heard after the proclamation of the Charter. The Sixth Amendment guarantees an American accused, inter alia, the right to a speedy trial.8 Graeme G Mitchell has remarked that “[t]here is perhaps no other section of the Charter in which our Supreme Court has followed American jurisprudence more slavishly than section 11(b).”9 One such example of this was when the Ontario Court of Appeal in Re Regina and Beason10 adopted the reasoning of the Supreme Court of the United States in the Sixth Amendment cases of Strunk v United States11 and Barker v Wingo.12 The Ontario court, following Strunk, opined that a dismissal of the charge was the only appropriate remedy where, on balance, “the accused’s right to be tried within a reasonable time has already been contravened.”13 In Mills, the Supreme Court of Canada first addressed the question of what is an appropriate remedy. In the majority opinion, Justice McIntyre rejects the necessity of a stay as a minimal remedy. He notes that section 24(1) of the Charter14 provides discretion to award “such remedy as the court considers ‘appropriate and just in the circumstances.’”15 He does not agree a stay of proceedings will always be appropriate and opines that the diverse circumstances of criminal cases demand variable remedies: It is difficult to imagine language which could give the court a wider and less fettered discretion. It is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre-empt or cut down this wide discretion. No court may say, for example, that a stay of 5 Edward L Greenspan & Michael W Lacy, “Charter Guarantees to Those Charged with a Criminal Offence – Section 11” in Ryder Gilliland, ed, The Charter at Thirty (Toronto: Thomson Reuters Canada Limited, 2012) 145 at 147 [Greenspan]. 6 Mills, supra note 3 at 918. 7 Greenspan, supra note 5 at 148. 8 US Const amend VI. 9 Graeme G Mitchell, “Significant Developments in Criminal Charter Jurisprudence in 1992” (1993) 57 Sask L Rev 59 at 89. 10 [1983] OJ no 3151 (QL), 1983 CanLII 1873 [Beason cited to QL]. 11 412 US 434 (1973) [Strunk]. 12 407 US 514 (1972) [Barker]. 13 Beason¸ supra note 10 at para 70. 14 See Mills, supra note 3 at 878 (the Supreme Court of Canada confirmed that section 24(1) is the appropriate remedial provision for a breach of section 11(b)). 15 Ibid at 965. Volume 2 The Inflexible Stay of Proceedings 82 proceedings will always be appropriate in a given type of case. Although there will be cases where a trial judge may well conclude that a stay would be the appropriate remedy, the circumstances will be infinitely variable from case to case and the remedy will vary with the circumstances.16 Justice La Forest, in his concurring opinion, agrees with the assessment of Justice McIntyre. He notes that the approach expressed by the Supreme Court of the United States in Barker, wherein a dismissal is the minimal remedy, “is not consistent with the language of s. 24 of the Charter.”17 Justice La Forest expresses concern that such a drastic remedy might lead courts to minimize the scope of the section 11(b) right, as has occurred in the United States.18 These opinions have had little bearing on the subsequent development of section 11(b) remedies in the years following their publication. In his dissent in Mills, Justice Lamer, as he then was, concurred with the Barker reasoning that a stay of proceedings is the minimal remedy following a breach of section 11(b).19 This approach became the law of Canada in Rahey, wherein Justice Lamer endorsed his dissent from Mills.20 In Rahey, the court was willing to entertain the possibility of alternative remedies in addition to the minimal remedy of a stay of proceedings.21 Damages were suggested to be appropriate in cases where malicious Crown conduct results in prejudice to the accused.22 Despite this endorsement in Rahey, no notable departure from the normative remedy of a stay of proceedings has been discernible in Canadian jurisprudence in the years since this decision. III. THE RATIONALE BEHIND THE STAY As noted above, in the litigation of section 11(b) in the 1980s, the court largely adopted the American Sixth Amendment speedy trial jurisprudence in their approach to crafting an appropriate remedy.

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