The SCC Protects Individuals’ Charter Right to be Tried within a “Reasonable” Time in Godin
May 2005 – Accused charged with sexual assault, unlawful confinement and threatening to kill his ex-girlfriend.
Mid Sep 2005 – Trial date set.
Mid Feb 2006 (Four days before trial) – Forensic evidence revealed that DNA obtained from complainant did not match the accused. Crown elected to proceed by indictment.
Sep 2006 – Date for preliminary inquiry (was adjourned).
Dec 2006 – Date proposed for preliminary inquiry by Crown.
Feb 5, 2007 – Preliminary inquiry rescheduled defence counsel unavailable in December.
Nov 2007 – Trial date set (30 months after charges were laid).
June 2007 – Stay of proceedings granted on grounds that the accused right to be tried within reasonable time guaranteed by section 11(b) of the Charter was violated.
The question that arises from R. v. Godin, 2009 SCC 26 is whether the trial judge erred in his analysis of the conduct of the defence and in granting the stay. The Court of Appeal decided in favor of the Crown and set aside the stay, holding that the trial judge erred in his analysis. Is 30 months of delay reasonable? If not, then how many months of delay are required for the courts to consider it unreasonable?
Factors to determine unreasonable delay – R. v. Morin
The facts of this case as set out in the timeline above are very straightforward. The SCC began their analysis by considering the guidelines for unreasonable delay as was set out in R. v. Morin, (1992) 1 SCR 771. Justice Sopinka in Morin set out a number of factors that have to be taken into consideration when approaching a Charter violation because of “unreasonable delay”.
“1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including
(a) inherent time requirements of the case,
(b) actions of the accused,
(c) actions of the Crown,
(d) limits on institutional resources, and
(e) other reasons for delay; and
4. prejudice to the accused.”
Furthermore, Morin established that there is no mathematical approach that can be adopted to determine “unreasonableness”. Instead, the role of the courts is to analyze the situation by balancing the interests protected by section 11(b) of the Charter against the factors that led to the delay.
Section 11(b) of the Charter
“11. Any person charged with an offence has the right…
(b) to be tried within a reasonable time”
As per the courts in Morin, this section was designed to protect individual rights of security, liberty and right to fair trial. It acts to minimize unnecessary stigma and stress of being forced through our criminal justice system by ensuring that the proceedings are completed within a reasonable period of time without unnecessary delays. Also, it is essential that the proceedings be completed within a time period such that the evidence remains available and witness memories remain fresh. Other than individual rights, our collective rights as a society need also be taken into consideration, because we benefit as a society when those who commit crimes are brought to trial as quickly as the justice system allows without unreasonable delays.
SCC Analysis in Godin
Justice Cromwell for the majority set out three critical reasons for the delay in this particular case:
(a) Delays relating to obtaining and disclosing the forensic evidence,
(b) Crown’s failure to acknowledge or respond to defence counsel’s efforts to set an earlier trial date
(c) Set trial date adjourned because of insufficient court time to proceed on set date
These delays were considered unreasonable, causing a simple, straightforward case to be extended and stretched out for more than 2 years. Justice Cromwell stated that, in aggregate, the case was uncomplicated and did not require much court time. However, he concluded that “the delays substantially exceeded the Morin guidelines; virtually all of the delays are attributable to the Crown and virtually none of them to the appellant; and the Crown offered no explanation of the three critical elements that accounted for most of the delay which is attributable to it.” Because of this reasoning, the courts concluded that delay in this case was unreasonable.
Impact of unreasonable delays on the court system
Both Morin and Godin followed the protocol set out and came to the conclusion that delay was unreasonable based on the facts of the case. Neither decision dismisses the importance of trials being complete in a reasonable amount of time. Justice McLachlin’s (as she was then) concurring decision in Morin clearly sets out the SCC’s reasoning for not allowing unreasonable delays stating that
“[w]hen trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.”
The guidelines from Morin have been strictly enforced in Godin, thus reinforcing the fact that the criminal justice system must comply with section 11(b) of the Charter. The guarantee of trial within a reasonable time is a right protected by the Charter. By enforcing the guidelines, the courts have set out a test to be used to determine what delay is unreasonable keeping in mind the judicial role of balancing the interests at stake against the consequences of delaying court decision.