Derailing a Criminal Proceeding Through Unreasonable Delay: The Supreme Court of Canada’s Decision in R. v. Ste-Marie

by Harman Mann · March 30, 2022

Introduction

Criminal law is oftentimes understood as an outcome-oriented field of law, wherein procedure in the criminal justice system is ultimately aimed at achieving an outcome – guilty or not guilty. However, the procedure to obtain a conviction is just as important, if not even more significant, than the conviction itself. If procedure utilized in criminal law is perceived as illegitimate, so too will the outcome. This is exactly the central problem in R v Ste-Marie, 2022 SCC 3 [Ste-Marie] as it examined whether a stay of proceedings, which is an extraordinary remedy, was appropriate after a 77-month delay. Ultimately, the Supreme Court of Canada (“SCC”) disposes the case in a mere 14-paragraphs, signaling that the issue is generally straightforward. This post, however, sheds light on the fact there are many underlying issues and repercussions when rejecting a stay of proceedings and sending a case back to an appellate court.

Facts and Procedural History

On September 14, 2009, the four accused were charged with the following: “laundering proceeds of crime, conspiracy and criminal organization offences” (Ste-Marie, para 2). Between the years 2014 and 2015, the various accused filed a motion for a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] and a decision was rendered on September 17, 2015 (Ste-Marie, para 2). This timeline is important because the trial judge in the Court of Quebec rendered the decision prior to the landmark Supreme Court of Canada in R v Jordan, 2016 SCC 27 [Jordan] wherein the Court held that a stay of proceedings is the only appropriate remedy for unreasonable delay. To add to this, Jordan set forth presumptive ceilings of 18 months for provincial court trials and 30 months for superior court trials (Jordan, para 49). If a trial takes longer than the mandated ceilings, then unreasonable delay has occurred.

The accused then appealed to the Quebec Court of Appeal (R v Ste-Marie, 2020 QCCA 1118 [Ste-Marie Appeal]), who solely examined whether a stay of proceedings was an appropriate remedy for the 11(b) breach (Ste-Marie Appeal, para 12). The Crown attempted to reopen whether there was an actual 11(b) violation, to which the Quebec Court of Appeal swiftly rejected the Crown’s actions. In following established jurisprudence under R v Rahey, [1987] SCR 588, the appellate court affirmed that a stay of proceedings is the only appropriate remedy (Ste-Marie Appeal, para 17). Furthermore, the trial judge considered prejudice a significant factor in determining whether an unreasonable delay required a stay of proceedings (Ste-Marie Appeal, para 17). Jordan sets forth that prejudice to an accused is only relevant in determining whether an 11(b) violation has occurred and does not impact the remedy.

The SCC’s Analysis

The Supreme Court of Canada swiftly in 14-paragraph decision allowed the Crown’s appeal to alter the remedies for unreasonable delay pursuant to 11(b). Particularly, the SCC found that the accused themselves had caused the delay through (1) filing multiple, applications, motions and interlocutory appeals that were mostly unsuccessful, (2) insisting that a certain lawyer represent them and (3) they never expressed concern regarding prejudice caused by delay (Ste-Marie, paras 8-10).

Commentary

Section 11(b) states, “Any person charged with an offence has the right… to be tried within a reasonable time” (Charter, s 11(b)). The obvious reason for the aforementioned legal protection is that an individual charged with an offence should not be subject to legal jeopardy or treated as if they are guilty for an extended period of time because the Canadian criminal justice system adopts the presumption of innocence as per 11(d) of the Charter. This is best demonstrated in the Canadian bail regime, wherein an accused must be brought before a justice within 24 hours of their arrest because it would be wholly unreasonable to subject a presumed innocent person to detention as per section 11(e) of the Charter.

The problem with the SCC’s factors for delay (e.g., having a specific lawyer represent the accused) is that an individual who is facing a large sentence and a loss of liberty will do everything to protect themselves. There is no indication that the accused’s actions were outrageous or a deliberate attempt to benefit from their own delay. By setting a low bar in assessing prejudice and overturning the stay of proceedings, the SCC has signaled that 11(b) is not as strong a protection as it was before. For instance, under the third factor that the accused never expressed concern regarding the prejudice, do we now expect defence lawyers to use strong language to firmly reject delays on the record. This may have severe implications for collegiality in the courtroom and the expected Crown-defence position to work towards effective solutions.

To add to this, there are ‘invisible costs’ of being charged with an offence and easily overturning a stay of proceedings is an issue. An individual who is charged becomes socially ostracized, wherein their identity becomes defined by the pending charges, and the presumption of innocence gives little protection. This impact also extends to one’s economic opportunities as their job prospects quickly become diminished from google searches or, in the case of business owners, they lose sales as well as employees. This can all be mentally taxing on an accused and thereby requires some form of finality to ensure that an accused’s rights are protected as well. In Ste-Marie the proceedings have been ongoing since 2014, and the SCC remanded the case to a new panel of the Quebec Court of Appeal for other grounds of appeal that remain outstanding. There is an inherent unfairness to both the accused as well as the victims, who must wait multiple years for the court to give a decision. As mentioned at the start of this post, any form of illegitimacy in the procedure will reflect in the end result being considered unjust.

Finally, the SCC has also sent a message that a ‘loophole’ exists, which the Crown can exploit in certain circumstances. If a stay of proceedings is entered, the Crown can attack the basis of the 11(b) as it did in the Ste-Marie matter. Essentially the Crown holds a path to override 11(b) if an unreasonable delay is found, which is appeal and argue that the delay was caused by the accused. This is especially problematic in the current climate where COVID-19 shut down courts and created a large backlog of cases for Crown prosecutors. Clearly, the inherent unfairness in the Ste-Marie and Jordan decisions point to the need to build a COVID-19 specific test that is able to account for delays which are not caused by either party but by an unforeseeable global pandemic. However, the issue that arises is who becomes responsible for the delay of the COVID-19 pandemic? The Crown or defence? If the delay is automatically presumed to be the Crown’s responsibility, then there will be absurd results where an individual who commits a horrendous crime is committed based on a technicality. Victims and the public’s faith in the criminal justice system will dwindle considerably. Hence, a failure to create a new 11(b) test will result in the Crown being able to use the same tactic as in Ste-Marie to attack a finding of unreasonable delay and thereby proceed to a trial.