How Long is too Long? R v Sanghera and s. 11(b) of the Charter
Pursuant to s. 11(b) of the Charter, “[a]ny person charged with an offence has the right…(b) to be tried within a reasonable time….” This case is concerned with whether or not Mr. Savdip Sanghera’s s. 11(b) Charter right was violated, and if so, whether or not such a delay was reasonable.
On March 23, 2015, the Supreme Court of Canada (“SCC”) dismissed the appeal of R v Sanghera, 2014 BCCA 249 [Sanghera], from the British Columbia Court of Appeal (“BCCA”). The majority for the SCC affirmed MacKenzie J.A.’s decision that even “if [the trial judge] erred in not attributing to the Crown responsibility the five months’ delay arising from the direct indictment,…such error does not upset the overall result, as [there are] other factors [that] weigh more heavily on the other side of the balance” (Sanghera, para 148). Karakatsanis and Côté JJ. (dissenting), however, would have allowed the appeal for the reasons of Bennett J.A.
What is most interesting about this case is that neither the justices of the BCCA nor the justices of the SCC were able to agree with one another on whether or not Mr. Sanghera’s s. 11(b) Charter rights had been violated by the delay.
Test for Assessing Whether Right to a Timely Trial has been Violated
According to the SCC in R v Morin,  1 SCR 771 [Morin], when assessing whether or not an accused’s right to a timely trial has been violated, the court must consider and weigh the following factors (Morin, 787-788):
- The length of the delay;
- Waiver of time periods;
- The reasons for the delay, including
- Inherent time requirements of the case,
- Actions of the accused,
- Actions of the Crown,
- Limits on institutional resources, and
- Other reasons for delay; and
- Prejudice to the accused.
Reasons of the Trial Judge
In considering the first two principles outlined in Morin, the trial judge concluded that there had been a delay of approximately three years, and that Mr. Sanghera had not waived any of the time periods.
The trial judge also examined each of the reasons for the delay. The trial judge estimated that the inherent time requirement of the case was nine and one-half months.
Concerning the actions of the accused, the trial judge found that Mr. Sanghera’s challenge to the wiretap authorization allowing the police to intercept calls allegedly made by Mr. Sanghera was “closer in character to the inherent time requirements of the trial, and, accordingly, were not much more than a neutral factor in the analysis of whether the delay was reasonable” (R v Sanghera, 2012 BCSC 711, para 51 [Sanghera, BCSC]). However, she ultimately concluded that Mr. Sanghera was responsible for the delay caused by the late formal notice of intention to bring a Charter challenge to the wiretap authorization.
The other delays for which the trial judge held Mr. Sanghera responsible were as follows: delayed disclosure and an application for disclosure resulting from late notice of intention to challenge wiretap; and faulty time estimate of three weeks for the trial when five weeks was necessary. The trial judge concluded that Mr. Sanghera was responsible for one month of delay.
Additionally, the trial judge reasoned that the exercise of the Crown’s discretion to prefer the direct indictment resulted in a delay of approximately five months. However, she found that the direct indictment was “not subject to scrutiny…” since such a decision lies at the core of prosecutorial discretion and could not be seen in the present case to be an abuse of process (Sanghera, BCSC, para 68-69).
Furthermore, concerning the limits on institutional resources, the trial judge found that institutional delay at the Provincial Court, which Mr. Sanghera was partially responsible for because of the need to obtain continuation dates stemming from late notice, accounted for a delay between 16 and 21 months. For the additional delay of between five and ten months in the Supreme Court of British Columbia, the trial judge did not attribute it to institutional delay since it was neither a result of the actions of the Crown nor any public institution. However, she did state that such a delay “nonetheless merits consideration [as other reasons for delay] because it prolonged the overall delay and extended the period of prejudice…” (Sanghera, BCSC, para 105).
Although the trial judge did find the delay to be prejudicial to Mr. Sanghera, and “longer than seems reasonable in relation to the charges…” (para 122) she concluded that the delay “d[id] not justify or require a stay of proceedings of the charges” (para 124).
Reasons of Bennett J.A.
In determining the correctness of the trial judge’s analysis, Bennett J.A. concluded that “the trial judge, by and large, correctly applied and considered the [Morin] factors” (Sanghera, para 68). However, where Bennett J.A.’s analysis deviated from that the trial judge was in regards to the effect of the filing of the direct indictment by the Crown.
Bennett J.A. ultimately reasoned that, in spite of a direct indictment being fully within prosecutorial discretion, the trial judge erred in considering the delay caused by the direct indictment as neutral. As further concluded by Bennett J.A., the delay should be considered an action of the Crown since “it was clearly foreseeable by the Crown that the effect of the direct indictment would be to add to an already lengthy delay” (para 85).
On this ground, Bennett J.A. found the delay to be unreasonable and a violation of Mr. Sanghera’s s. 11(b) Charter rights, and therefore, would have allowed the appeal, set aside the guilty verdict and entered a stay of proceedings.
Reasons of MacKenzie J.A.
Although MacKenzie J.A. was in agreement with Bennett J.A. on a number of issues, including Bennett J.A.’s findings that the Crown should bear the responsibility for preferring the direct indictment, MacKenzie J.A. ultimately reached a different conclusion which the majority of the SCC found to be more persuasive.
MacKenzie J.A. concluded that “the single overriding cause of delay in this case, and the delay from which all subsequent delays flowed…” was the need for continuation dates as a result of the late formal notice of intention to bring a Charter challenge and application for disclosure, faulty time estimate for the length of the trial, and failure to raise any s. 11(b) issue until after the delay was “effectively a fait accompli…” (Sanghera, para 111). On these grounds, MacKenzie J.A. found that Mr. Sanghera was the primary cause of the delay and therefore should be held responsible for it.
The purpose of granting Charter protection to an accused against an unreasonably lengthy trial is to prevent undue prejudice to the accused. However, as noted by MacKenzie J.A., it does not follow from this that an accused is entitled to such protection when the accused has purposely employed manipulative tactics in order to extend the length of the trial to the point of unreasonable delay (Sanghera, para 153).
Although I am in agreement with MacKenzie J.A. that such an “ulterior strategy” cannot be attributed to Mr. Sanghera in this case since his actions may be “unquestionably bona fide,” Mr. Sanghera must be held responsible for his actions, which amounted to a significant delay.
Ultimately, Mr. Sanghera’s late formal notice of intention to bring a Charter challenge to the wiretap authorization, whether directly or indirectly, culminated in a delay of one month plus an additional delay of 16 to 21 months at the Provincial Court. Although the trial judge only held Mr. Sanghera partially responsible for the delay at the Provincial Court, primarily attributing it to limits on institutional resources, I take the position that the delay at the Provincial Court should be considered as an action of the accused. In comparison, the actions of the Crown in preferring the direct indictment only accounted for a delay of five months.
However, it is important to consider the prejudicial effect that the delay had on Mr. Sanghera, regardless of whether or not the delay can be attributed to the actions of the accused. As outlined by the trial judge, Mr. Sanghera, having been denied bail, was in custody for the entire duration of the proceedings, which amounted to approximately three years. While this has had an extraordinary prejudicial effect on Mr. Sanghera, the severity of the offence, according to MacKenzie J.A., can justify such a detention.
Ultimately, Mr. Sanghera was charged and convicted of unlawful possession of a restricted firearm, unauthorized transfer of a firearm and unauthorized possession of a firearm for the purpose of transferring it. (The conviction of the last count was stayed.) It can be argued that these charges would warrant the denial of bail in order to ensure public safety. As such, I agree with the trial judge and MacKenzie J.A. that the seriousness of the offences “undermine the social structure on which Charter and other protections depend” (Sanghera, BCSC, para 123).
On these grounds, I contend that although the delay was unreasonable and violated Mr. Sanghera’s s. 11(b) rights, Mr. Sanghera was largely responsible for the delay.