R. v. Askov [1990] 2 S.C.R. 1199: -- Trial within a reasonable time -- Delay of almost two years in bringing case to trial following committal -- Delay resulting chiefly from institutional problems -- Whether right to be tried within reasonable time infringed

Present: Dickson C.J. and Lamer C.J. and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law -- Charter of Rights -- Trial within a reasonable time -- Delay of almost two years in bringing case to trial following committal -- Delay resulting chiefly from institutional problems -- Whether right to be tried within reasonable time infringed -- Canadian Charter of Rights and Freedoms, s. 11(b).

Appellants were charged with conspiracy to commit extortion in November 1983. A, H and M were also charged with several related offences and detained in custody for almost six months before being released on recognizances. G was released on a recognizance shortly after his arrest. All counsel agreed on a date early in July 1984 for the preliminary hearing, but it could not be completed until September. A trial was then set for the first available date, in October 1985. The case could not be heard during that session, and was put over for trial to September 1986, almost two years after the preliminary hearing. When the trial finally began, appellants moved to stay the proceedings on the ground that the trial had been unreasonably delayed. The trial judge found that the major part of the delay following appellants' committal stemmed from institutional problems and granted the stay. The Court of Appeal found: (1) no misconduct on the part of the Crown; (2) no indication of any objection by the appellants to any of the adjournments; and (3) no evidence of any actual prejudice to the appellants. It accordingly set aside the stay and directed that the trial proceed.

Held: The appeal should be allowed and a stay of proceedings directed.

Per Dickson C.J. and La Forest, L'Heureux-Dubé, Gonthier and Cory JJ.: Under s. 11(b) of the Charter, any person charged with an offence has the right to be tried within a reasonable time and this right, like other specific s. 11 guarantees, is primarily concerned with an aspect of fundamental justice guaranteed by s. 7. The primary aim of s. 11(b) is to protect the individual's rights and to protect fundamental justice for the accused. A community or societal interest, however, is implicit in the section in that it ensures, first, that law breakers are brought to trial and dealt with according to the law and, second, that those on trial are treated fairly and justly. A quick resolution of the charges also has important practical benefits, since memories fade with time, and witnesses may move, become ill or die. Victims, too, have a special interest in having criminal trials take place within a reasonable time, and all members of the community are entitled to see that the justice system works fairly, efficiently and with reasonable dispatch. The failure of the justice system to do so inevitably leads to community frustration with the judicial system and eventually to a feeling of contempt for court procedures.

The court should consider a number of factors in determining whether the delay in bringing the accused to trial has been unreasonable: (1) the length of the delay; (2) the explanation for the delay; (3) waiver; and (4) prejudice to the accused. The longer the delay, the more difficult it should be for a court to excuse it, and very lengthy delays may be such that they cannot be justified for any reason. Delays attributable to the Crown will weigh in favour of the accused. Complex cases, however, will justify delays longer than those acceptable in simple cases. Systemic or institutional delays will also weigh against the Crown. When considering delays occasioned by inadequate institutional resources, the question of how long a delay is too long may be resolved by comparing the questioned jurisdiction to others in the country. The comparison of similar and thus comparable districts must always be made with the better districts, not the worst. The comparison need not be too precise or exact; rather, it should look to the appropriate ranges of delay in determining what is a reasonable limit. In all cases it will be incumbent upon the Crown to show that the institutional delay in question is justifiable. Certain actions of the accused, on the other hand, will justify delays. A waiver by the accused of his rights will justify delay, but the waiver must be informed, unequivocal and freely given to be valid.

Here, the delay of almost two years following the preliminary hearing was clearly excessive and unreasonable. The Crown did not show that the delay did not prejudice the appellants, and nothing in the case was so complex or inherently difficult as to justify a lengthy delay. This trial was to be heard in a judicial district notorious for the time required to obtain a trial date and figures from comparable districts demonstrate that the situation there is unreasonable and intolerable.

Per McLachlin J.: Cory J.'s reasons were agreed with and comments were made on the process of determining whether a trial has been unreasonably delayed. Section 11(b) is designed to serve the interests of society generally, as well as those of the accused and the prosecution. Two elements must be assessed under s. 11(b): the length of the delay, and its reasonableness. If the delay is prima facie excessive, it is necessary to go on to consider whether it is nonetheless reasonable. Reasonableness may depend on a variety of factors, including the prejudice caused by the delay. Absent waiver, a certain prejudice in a long-delayed trial may be inferred if not rebutted by the Crown. Here, the delay was prima facie excessive and unreasonable and entitled the accused to the benefit of s. 11(b).

Per Sopinka J.: Cory J.'s reasons were agreed with, subject to Lamer C.J.'s comments on the purported societal interest in s. 11(b).

Per Wilson J.: Cory J.'s reasons were agreed with except on two issues. Section 11(b) of the Charter protects only the accused's interest in a speedy trial, not the societal interest. Nor does the section protect an accused from prejudice arising from the simple fact of being charged, but only from prejudice arising from the Crown's failure to try him or her within a reasonable time. The former is accepted as a necessary incident of our justice system. The latter is not.

Per Lamer C.J.: Cory J.'s reasons were mostly agreed with, subject to two qualifications. While society may have an interest in the functioning of the criminal justice system, this interest is not what s. 11(b) is designed to protect. Further, because of the very nature of our criminal justice system, there exists an irrebuttable presumption of prejudice to the accused from the moment the charge is laid. The accused need not demonstrate any further manifestations of prejudice beyond the kind presumed in order to establish an infringement of s. 11(b).

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