Prosecution Found To Be “Making Things Up As It Went Along”: R v Auclair

In R v Auclair, 2014 SCC 6, the Supreme Court of Canada (“SCC”) denied leave to appeal from the Quebec Court of Appeal decision. In denying the appeal from R v Auclair, 2013 QCCA 671, the SCC also took the opportunity to highlight the “extraordinary and unique nature” of the situation that Superior Court Justice Brunton was presented with as a result of the case brought by the Crown. The SCC made note of the problems with the Crown’s election to proceed by direct indictment with 29 charges of more than 150 accused.

The SCC found that the prosecution had not endeavored to develop a realistic plan for bringing the charges to trial and conducting trials for so many accused within a reasonable time. The indictment also contained some counts that could not be lawfully included, as they did not arise out of the same criminal transaction. In addition, the SCC took note of the Superior Court judge’s observation that the prosecution had essentially been “making things up as it went along” and had been ill prepared for managing the case.

As a result, the SCC concluded that the Superior Court judge had appropriately exercised his discretion to manage the trial to protect the Charter rights of the accused. In addition, the SCC noted that the public interest favoured avoiding “the total collapse of the prosecution that would have been caused by unreasonable delays.”

Facts and Judicial History

The prosecution alleged that those arrested were members of the Hells Angels. They had been arrested as a result of over 70 investigations, with the charges spanning from a 20-year time period. These charges would take more than 7 years, at a rate of 24 hours a day, 7 days a week to hear all of the evidence. In addition the evidence was such that the SCC noted that if the exhibits were printed they would equal “371 Empire State Buildings.”

At the Quebec Court of Appeal the Crown appealed from a stay of proceedings in regards to charges against Auclair and other defendants for drug trafficking and membership in a criminal organization, among other charges. However, due to the limitations on courtroom space, the trial judge found that many trials would not begin for six years—an unreasonable delay in contravention of s. 11(b) of the Charter.

Trial Management and the Charter

Section 11 (b) of the Charter states that “Any person charged with an offence has the right…to be tried within a reasonable time.” As such, it is fair to say that not commencing a trial for six years would go far beyond a reasonable time. As a result, the defence requested a stay of proceedings and for the indictment to be quashed in its entirety. The defence cited illegality, unreasonable delays, the impossibility of mounting a defence, and abuse of process in their arguments. They submitted that the file was so large that they could not mount a defence or have a fair trial within a reasonable time.

Thus, to manage the case, the defence’s motion for a stay of proceedings was granted on the drug trafficking and membership in a criminal organization charges, but not on the murder and criminal conspiracy charges. As a result, the Court of Appeal upheld the Superior Court judgment in finding it reasonable for the judge to manage the case and sever the charges to ensure that the most serious charges were tried.


In allegations involving suspected organized crime, the charges by their very nature will present prosecutorial difficulties given the large amount of individuals involved. Although there is generally prosecutorial discretion for how to proceed, judicial intervention may be necessary to ensure basic trial fairness. Indeed the approach taken by the trial judge and upheld by the higher courts in this case appropriately balances the rights of the accused to a fair trial and the public interest in seeing serious crimes such as murder brought to trial.

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