Digital Companion
Volume 2, (Winter 2016) Article 5
THE INFLEXIBLE STAY OF PROCEEDINGS: ALTERNATIVE REMEDIES FOR CHARTER SECTION 11(b) BREACHES
Colin Wood
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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. Unsurprisingly, Canadian rationalization of the remedial provision also reflects American judicial reasoning. As early as 1983, the Ontario Court of Appeal in R v Antoine adopted reasoning from Barker, noting that the American courts took a balancing approach when evaluating the conduct of the defence and prosecution in bringing a matter to trial.23 Further, consideration for society’s interest in having matters tried within a reasonable time is noted.24 These approaches continue to animate the Canadian section 11(b) analysis today.25 Antoine adopted four factors from Barker that courts must consider in cases of unreasonable delay. The factors include: (1) the length of delay; (2) the reasons for the delay; (3)
16 Ibid at 965-66 [emphasis added]. 17 Ibid at 974. 18 Ibid. 19 Ibid at 947. 20 Supra note 3 at 614. 21 Ibid at 615. 22 Ibid. 23 [1983] OJ No 3021 at para 28 (QL), 1983 CanLII 1743 [Antoine]. 24 Ibid at para 30. 25 See e.g. Her Majesty the Queen v Lahiry, 109 OR (3d) 187, 2011 ONSC 6780 (CanLII) at para 4 [Lahiry]; R v Konstantakos, 2014 ONCA 21 (CanLII) at paras 4, 13, [2014] 298 CRR 2 [Konstantakos]. Volume 2 The Inflexible Stay of Proceedings 83 whether the defendant asserted the right; and (4) prejudice flowing to the defendant.26 These factors have been largely adopted by the Supreme Court of Canada.27 In Morin, the court stated the test for a section 11(b) breach and provided temporal guidelines for courts in determining whether a delay was unreasonable.28 A court addressing a section 11(b) application must consider:
1. the length of the delay 2. waiver of time periods 3. the reasons for the delay (a) inherent time requirements of the case (b) actions of the accused (c) actions of the Crown (d) limits on institutional resources (e) other reasons for delay 4. prejudice to the accused.29
After a consideration of these factors, the interests of the accused must be balanced with the interests of society in law enforcement and the prosecution of criminal offences.30 The trial judge should explicitly take into account any relevant considerations of the public interest.31 The Morin test and the balancing exercise continue to form the section 11(b) analysis today.32 When the Morin test is applied, and a breach of section 11(b) is made out, the minimal remedy is a stay of proceedings.33 The necessity of a stay of proceedings turns on the notion that an accused can no longer be afforded a fair trial once an unreasonable delay has passed. This is seemingly an element of the fourth limb of Morin, which discusses the concern that the accused is prejudiced as a result of the delay. The assessing court can consider both inferred and actual prejudice suffered by the accused.34 In Askov, a predecessor to Morin, the court again relies on the decision in Barker to elucidate three individual interests that the right was designed to protect:
(i) to prevent oppressive pre-trial incarceration; (ii) to minimize the anxiety and concern of the accused; and (iii) to limit the possibility that the defence will be impaired or prejudiced.35
In R v Godin, the Supreme Court of Canada confirmed that these factors are at the core of the analysis into whether inferred or actual prejudice occurred as a result of the delay.36
26 Antoine, supra note 23 at para 32. 27 Morin, supra note 4 at para 31. 28 Ibid at para 55. 29 Ibid at para 31. 30 Ibid at paras 29-30, 32; see also R v Hussey¸ 2008 ONCA 86 (CanLII) at para 9, 168 CRR (2d) 252 [Hussey]. 31 Hussey, supra note 30 at para 9. 32 See e.g. Lahiry, supra note 25 at para 3-4. 33 Rahey, supra note 3 at 615. 34 Morin, supra note 4 at 801-03. 35 Askov, supra note 1 at 1208-09. 36 2009 SCC 26 (CanLII) at para 30, [2009] 2 SCR 3. Volume 2 The Inflexible Stay of Proceedings 84
In Askov, the court notes other implications of delay on the accused’s right to a fair trial. One of the main implications includes the concern that the quality of evidence deteriorates as time passes. Justice Cory, for the majority, notes that “[t]here can be no doubt that memories fade with time. Witnesses are likely to be more reliable testifying to events in the immediate past as opposed to events that transpired many months or even years before the trial.”37 He notes that witnesses themselves may move, become ill, die, or become otherwise unavailable to testify as time progresses.38 The frailty of human memory, which is well recognized in psychology literature, is particularly true of eyewitness evidence and the phenomenon of false memories. Experimental results have demonstrated that human subjects are prone to being induced to recount occurrences or details of their experience that did not exist.39 This has also proven true in the criminal justice context, where witnesses have misidentified suspects in photo lineups and thus selected which individual is guilty, even where they are unsure about the true identity of a culprit.40 After making a choice, even when the identification was incorrect, a person’s confidence increased if the individual conducting the lineup provided positive feedback.41 Courts have recognized the fallibility of human memory42 and the notion that memory fades with time.43 However, much of the evidence used to convict an accused in Canada is viva voce witness testimony given from memory. Brian Manarin noted that when calculating the guidelines for what might constitute an unreasonable delay causing trial unfairness, the Supreme Court of Canada did not incorporate empirical data from memory experts.44 He observes that the current guideline standards may still be unacceptably long according to experts in the study of human recollection.45 The Supreme Court of Canada notes there are interests other than those of the accused, which demand the right to a trial within a reasonable time. In Askov, Justice Cory recognizes the special interest of victims who are often devastated by criminal acts and their expectations for the matter to be tried and resolved within a reasonable time.46 Further, the court notes the alarm that a serious crime causes in the community.47 This alarm cannot be resolved unless the justice system ensures that trials occur and a determination of guilt or innocence is made in an expeditious and efficient manner.48 Public frustration mounts against the government and justice system when an under-funded or slow-moving judicial apparatus fails to resolve criminal offences within a
37 Askov, supra note 1 at 1220. 38 Ibid. 39 See e.g. James Deese, “On the Prediction of Occurrence of Particular Verbal Intrusions in Immediate Recall” (1959) 58:1 J Experimental Psychology 17; Henry L Roediger III & Kathleen B McDermott, “Creating False Memories: Remembering Words Not Presented in Lists” (1995) 21:4 J Experimental Psychology 803. 40 Nancy Steblay et al, “Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup Presentations: A Meta- Analytic Comparison” (2001) 25:5 L & Human Behavior 459 at 462-64; see also RCL Lindsay et al, “How Variations in Distances Affect Eyewitness Reports and Identification Accuracy” (2008) 32 L & Human Behavior 526 at 531-32. 41 Carolyn Semmler, Neil Brewer & Gary L Wells, “Effects of Postidentification Feedback on Eyewitness Identification and Nonidentificantion Confidence” (2004) 89:2 J Applied Psychology 334 at 334. 42 See e.g. R v Miaponoose, 30 OR (3d) 419, 1996 CanLII 1268. 43 Askov, supra note 1 at 1220. 44 Brian Manarin, “Bedeviled by Delay: Straight Talk About Memory Loss, Procedural Manipulation and the Myth of Swift Justice” (2009) 27 Windsor Rev Legal Soc Issues 117 at 126 [Manarin]. 45 Ibid. 46 Supra note 1 at 1220-21. 47 Ibid. 48 Ibid. Volume 2 The Inflexible Stay of Proceedings 85 reasonable time, or results in accused individuals walking free after having a matter stayed because of delay.49 Section 11(b) and the stay remedy incentivize the government to ensure that courts are adequately funded to deal swift justice. Indeed, after Askov, thousands of criminal charges were stayed on the basis of unreasonable delay.50 Public outcry in such circumstances is a significant consideration for government expenditure to redress delay issues.51 While it is clear that the section 11(b) right belongs to the accused, the remedial provision serves a dual purpose by serving the societal interest in addition to protecting the fair trial rights of the accused.52
IV. THE STAY IS AN EXTRAORDINARY REMEDY
(a) RECENT SUPREME COURT STAY OF PROCEEDINGS JURISPRUDENCE
In R v Babos, a decision released in February 2014, Justice Moldaver restated the law applicable to stays.53 The test to determine the appropriateness of a stay of proceedings is:
1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;
2) There must be no alternative remedy capable of redressing the prejudice; and
3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits.”54
The Babos decision is arguably a retrenchment from the approach to stay of proceedings the court took a year earlier in R v Ryan.55 In Ryan, an abused spouse attempted to hire an undercover police officer to murder her husband.56 The proceedings became protracted for five years through the appeal courts because the law of duress was unclear at trial and the Crown changed its position between the trial and the initial appeal.57 The Supreme Court of Canada felt Ms. Ryan’s situation was exceptional and that subjecting her to a second trial would not be fair given the negative impact the proceedings had on her and the fact that she had to make trial decisions based on unclear law.58 However, the Supreme Court of Canada did not explicitly balance the interests in granting a stay against the public interest in a trial on the merits of the
49 Ibid at 1221. 50 R v Bennett, 3 OR (3d) 193, [1991] OJ No 884 (QL) at para 41, 1991 CanLII 2701 (CA). 51 Ministry of the Attorney General, Ontario Civil Justice Review, First Report (Toronto: Queen’s Printer, 1995) at c 12, online:
V. SECTION 11(B) CRITICISM POST-MORIN
In the decades following the Morin decision and its antecedents, delay issues continue to beleaguer Canadian courts. After a flood of stays occurred post-Askov, with over 47,000 charges stayed or withdrawn in Ontario alone,64 the government of the day undertook to enhance the efficiency of the judicial apparatus. This was achieved in part by appointing more judges to the bench.65 Despite these measures, the delay epidemic in the system prompted the Ontario Ministry of the Attorney General to implement a program in 2008 called “Justice on Target,” with the objective of reducing criminal court delay.66 Brian Manarin has remarked that the phenomenon of delay in Canadian criminal courts may be largely illusory. He argues that delays at the behest of defendants are often to blame for not advancing matters to trial in a timely manner.67 He notes that in 2008, Windsor, Ontario ranked last or near last in a number of measures regarding system efficiency.68 Despite this, only eight stay for delay applications were heard that year out of 15,000 charges processed.69 Manarin argues a statutory mechanism to force judicial oversight of mounting delay, which would be available to either defence or prosecution in a criminal proceeding, might reduce the continued delay in the criminal justice system.70 Justice Doherty, as he then was, echoes this sentiment in his paper delivered to the National Criminal Law Program in 1989, later cited by Justice Cory with approval in Askov:
59 As Ryan predates the Babos decision, the applicable law on this limb of the test was R v Reagan, 2002 SCC 12, [2002] 1 SCR 297 [Regan]. Regan nonetheless demanded the same balancing exercise articulated in Babos. 60 Ryan, supra note 55 at paras 88-90. 61 Supra note 53 at para 31. 62 Ibid at para 30, citing Regan, supra note 59 at para 53. 63 R v Steele, 2012 ONCA 383 (CanLII) at para 30, 288 CCC (3d) 255. 64 Morin, supra note 4 at 779-80. 65 See R v Badhan, [2009] OJ No 5189 (QL) at para 8 (Ct J). See also R.D. Dyck, “Ontario”, in David Leyton- Brown, ed., Canadian Annual Review of politics and public affairs 1991, (Toronto, University of Toronto Press, 1998) at 163. 66 Ontario Ministry of the Attorney General, “Justice on Target” (3 June 2008), Backgrounder, online:
A dismissal of the charge, the only remedy available when s. 11(b) is found to have been violated, sticks in the judicial craw when everyone in the courtroom knows the last thing the accused wanted was a speedy trial. It hardly enhances the reputation of the administration of justice when an accused escapes a trial on the merits, not because he was wronged in any real sense, but rather because he successfully played the waiting game.71
It is likely that delay issues will continue to persist into the foreseeable future, despite the judicial apparatus to combat delay in Canada. For this reason, it is advisable that a more flexible approach be taken in crafting remedies for breaches of section 11(b). The late Justice Rosenberg of the Ontario Court of Appeal was critical of the narrow approach to section 11(b) remedies:
I do think, however, that in this area the courts can be rightly criticized for a lack of imagination. The only response to breach of section 11(b) has been a stay of proceedings — a termination of the case without a determination of guilt or innocence. While someone who is guilty could rightfully see a stay of proceedings as an excellent result, it is hardly satisfactory for the innocent or the victims of the offence. It may be that a more nuanced approach might be more satisfactory for society and also more effective.72
An approach that affords trial judges the discretion to craft an alternative remedy in the case of a section 11(b) breach, where the public interest nevertheless demands a trial, is desirable. In support of this suggestion, an examination of possible remedies, other than a stay, must be undertaken.
VI. ALTERNATIVE REMEDIES
The development of section 24(1) remedies in the decades since the original section 11(b) cases were decided, has given courts remedial tools that were not previously available. In Doucet-Boudreau v Nova Scotia (Minister of Education), the Supreme Court of Canada confirmed that section 24(1) provides a superior court jurisdiction to craft any remedy that it considers appropriate and just in the circumstances.73 This should include the creation of effective remedies that are appropriately responsive to the breach of a Charter-protected right in a given case.74 Reviewing courts are to show considerable deference to the trial judge’s choice of remedy.75 Given the broad reach of section 24(1), Justice Casey Hill and Jeremy Tatum have been critical of the singular remedial approach for section 11(b):
A “one size fits all” solution to constitutional violations of a right is inconsistent with section 24(1). Seizing on a single remedy as the exclusive relief for a Charter violation risks eliminating any case-specific proportionality assessment and, combined with the
71 Supra note 1 at 1222 [emphasis added]. 72 Honourable Marc Rosenberg, “Twenty-Five Years Later: The Impact of the Canadian Charter of Rights and Freedoms on the Criminal Law”, online: (2009) 45:2 SCLR
impact of remedial deterrence on interpretation of the right itself, threatens to leave a population of accused, who have experienced excessive delay to trial, with no remedy.76
(a) SENTENCE REDUCTION
In 2010, the Supreme Court of Canada ruled in R v Nasogaluak that a sentence reduction is an available remedy under section 24(1) of the Charter in some exceptional cases. 77 Greenspan and Lacy have argued that recent jurisprudence suggests that in the face of serious Charter infringements, lesser remedies than a stay of proceedings, such as sentence reduction, may be appropriate.78 Notably, Justice Lebel for the Court in Nasogaluak remarks that in the context of mandatory minimum sentences, the circumstances of a Charter breach or egregious state misconduct allow a court to deviate from the mandated statutory penalty.79 Justice Lebel notes that this remedy should be limited to exceptional circumstances.80 I suggest that the conditions examined by this paper, where trials proceed notwithstanding a section 11(b) breach, amount to exceptional circumstances. According to Frank Addario and Megan Savard, Nasogaluak applies even if a section 11(b) Charter application fails, and therefore delay can be argued as a mitigating factor at sentencing.81 Hill and Tatum argue that in cases where meritorious section 11(b) claims are not brought for strategic reasons, delay has nevertheless been remedied through sentence reduction.82 I suggest that if an application is successful, but a trial proceeds due to public interest, a sentence reduction can be applied using section 24(1) by the judge, rather than resorting to consideration as a mitigating factor. This vindicates the accused for the breach of their Charter-protected right. It is fair criticism that this remedy is only available to an offender on sentencing and not available to accused persons unless they are ultimately convicted. However, where a judge might find it appropriate to implement a sentence reduction as a tailored section 24(1) remedy, they continue to be bound by the minimal application of the stay. The application of sentence mitigation outside of the Charter remedial context minimizes the constitutional nature of the unreasonable delay provision to a certain degree. A Charter remedy flowing from the section 11(b) analysis should be available upon sentencing. After finding a breach and nevertheless directing a matter to trial, a judge might make a pre-trial order that a sentence reduction be applied in the event a finding of guilt is made.
(b) ENHANCED CREDIT
In accordance with section 719(3) of the Criminal Code,83 a judge is allowed to exercise discretion in determining whether to discount the time already served by an accused from the
76 Justice Casey Hill & Jeremy Tatum, “Re-Chartering an Old Course Rather than Staying Anew In Remedying Unreasonable Delay under the Charter” (2012) Crown Defence at 53, online:
(c) DAMAGES
A constitutional damages award to an accused may be an appropriate remedy in certain circumstances. In Rahey, the court noted that damages may prove to be an appropriate remedy over and above the minimal remedy of a stay.93 However, the court further observed that damages are best limited to circumstances where the conduct of state actors is malicious or has otherwise occasioned the delay.94 Damages may also be an appropriate remedy in circumstances where a stay is no longer available as a minimal remedy. For instance, if an accused faces institutional or prosecutorial delay and requires additional appearances by counsel as well as a Charter application, damages may be appropriate assuming a Charter breach is established and a stay is not warranted due to
84 R v Wust, 2000 SCC 18 (CanLII) at para 45, [2000] 1 SCR 455. 85 SC 2009, c 29, s 3 [TISA]; Code, supra note 83 at s 719(3.1). 86 TISA, supra note 85; Code, supra note 83, s 719 (3). 87 2014 SCC 26 (CanLII), [2014] 1 SCR 575 [Summers]. 88 2014 SCC 27 (CanLII), [2014] 1 SCR 605. 89 Summers, supra note 87 at para 68. 90 Ibid at para 75. 91 Ibid. 92 R v Smith, 37 CR (4th) 360, 1995 CanLII 7433 at para 33 (Ct J (Gen Div)); R v Kravchov, 4 CR (6th) 137, [2002] OJ No 2172 (QL) at paras 12, 47 (Ct J). 93 Supra note 3 at 615. 94 Ibid. Volume 2 The Inflexible Stay of Proceedings 90 public interest. Monetary compensation may also be available in limited circumstances to an accused for an unreasonably long period of incarceration. Unlike the above-noted remedies, damages remain available to an accused where an acquittal is ultimately entered as well.
(d) EXCLUSION OF EVIDENCE
As I have argued, the current model, wherein a stay is the minimal remedy for a section 11(b) breach, denies the trial judge the ability to craft an appropriate remedy as necessitated by the circumstances of the case. Circumstances may arise where evidence or disclosure practices generate unreasonable Crown delay. For example, in Konstantakos, a judicial pre-trial was postponed twice due to Crown delays in vetting the disclosure, which contributed to the trial judge making a finding of unreasonable delay.95 In R v Ramsaroop, Crown disclosure remained incomplete for a period of at least five and a half months, which resulted in the trial judge finding a period of delay of nearly sixteen months.96 A limited number of cases may arise where it is appropriate to exclude evidence that has occasioned unreasonable delay. In R v White, the Supreme Court of Canada ruled that evidence could be excluded under section 24(1) in situations where the obtaining of the evidence did not breach a Charter-protected right, but its admission would compromise trial fairness in violation of the Charter.97 Perhaps, in circumstances where the ongoing collection of evidence leads to unreasonable delays, such that trial fairness concerns are engaged, an accused could apply under section 24(1) to exclude any evidence obtained beyond a particular date. This would preclude the Crown from seeking any further evidence before trial. Manarin has made a similar suggestion in his proposal for a statutory regime, wherein an accused or prosecutor could apply to a judge for an order directing a speedy trial.98
(e) OTHER REMEDIES
The remedies I have outlined above are not intended to be exhaustive, rather they are illustrations of the incredibly broad remedial scope afforded by section 24(1) as applied to section 11(b) breaches. The appropriate remedy will always lie in the hands of the trial judge, provided they have discretion to depart from the minimal application of the stay of proceedings.
VII. A FRAMEWORK FOR REFORM
(a) PROPOSAL FOR REFORM
Canadian courts are left today with a choice of extremes. Where there has been a breach of the section 11(b) right, the minimal remedy is a stay of the proceedings. This operation of law potentially leaves the victim and the public without the benefit of an adjudication of the alleged criminal activity on its merits. The second option available to a trial judge in cases where there has been a breach and the public interest demands a trial, is to refuse a stay and order for the trial
95 Supra note 25 at paras 3, 6. 96 2009 ONCJ 406 (CanLII) at paras 39, 47, 198 CRR (2d) 97. 97 [1999] 2 SCR 417 at para 89, 1999 CanLII 689. 98 Manarin, supra note 44 at 142. Volume 2 The Inflexible Stay of Proceedings 91 to proceed. This outcome leaves the accused with no vindication for the breach of his or her constitutional right. I suggest that there is room for compromise. Tools are available to judges to craft an appropriate remedy where a section 11(b) breach is established, but the public interest demands a trial. In such cases, the accused need not be left without any remedy. The remedies proposed above are available under the section 24(1) remedial provision in cases of a section 11(b) breach. A court of competent jurisdiction may order any remedy deemed “appropriate and just in the circumstances.”99 The current operation of the stay as the minimal remedy prevents the trial judge from tailoring an appropriate remedy. This restriction should be revisited. As Justice L’Heureux-Dubé J. noted in R v O’Connor, “remedies less drastic than a stay of proceedings are…available under s. 24(1).”100 She noted that “the Charter has now put into judges’ hands a scalpel instead of an axe.”101 Judges should have the ability to use the tools of section 24(1) to develop an appropriate remedy in section 11(b) cases where a stay is not issued but a breach is established.
(b) JURISDICTION TO REVISIT SUPREME COURT PRECEDENT
In Canada (Attorney General) v Bedford, the Supreme Court of Canada ruled that lower courts can revisit precedent set by the highest court in cases where a new legal issue is raised, or if there is a significant change in the circumstances or evidence.102 I suggest that this threshold is met on the “novel legal issue” limb and therefore, the minimal remedy ruling in Rahey and its progeny can be revisited.103 The development of section 24(1) jurisprudence has provided novel legal grounds to question the Supreme Court’s position in Rahey. Charter remedies such as a sentence reduction, which were not available for the court to consider in the late 1980s, when the original section 11(b) remedy jurisprudence was decided, are now available.104 This body of law should be revisited with a view to permitting trial judges to create moderate remedies where warranted by the proceedings.
VIII. CONCLUSION
Delay remains a concern in the Canadian criminal justice apparatus three decades after the Charter proclaimed the right of an accused person to a trial within a reasonable time. Adherence to Supreme Court of the United States jurisprudence in the fledgling days of the Charter has resulted in an inflexible status quo, wherein the minimal remedy available in cases where section 11(b) has been breached is a stay of proceedings. However, a court may nevertheless direct an accused to stand trial after a breach of section 11(b) if the public interest demands a trial of the criminal allegations on the merits. In such cases, because a stay is a
99 Charter, supra note 2, s 24(1). 100 [1995] 4 SCR 411 at para 69, 1995 CanLII 51. 101 Ibid. 102 2013 SCC 72 (CanLII) at para 44, [2013] 3 SCR 1101. 103 See supra note 3 at 615. 104 Nasogaluak, supra note 77 at para 6. Volume 2 The Inflexible Stay of Proceedings 92 minimal remedy, an accused whose right has been breached is disentitled to a remedy under the Charter. This is an unnecessary status quo. The stay should be a presumptive remedy in cases where section 11(b) is breached, but should not be a minimal remedy. There will remain cases where unreasonable delays mean fair trials are no longer possible and the circumstances demand stays of proceedings. The accused should not be left without a remedy for a breach of their constitutionally protected right in cases where public interest requires a trial to proceed. Potential alternative remedies have been developed in section 24(1) jurisprudence that may prove appropriate in such circumstances, including a sentence reduction, enhanced credit, damages, or the exclusion of evidence. In other cases, the trial judge’s section 24(1) discretion to craft a remedy that is “just and appropriate in the circumstances” will dictate that another remedy is required. Trial judges should be afforded this freedom unencumbered by the notion that a stay is the minimal remedy to be applied.