 |
| John L. Hill |
If it exceeds 18 months, the accused is entitled to have the case dismissed because Charter s. 11(b) guarantees a speedy trial (R. v. Jordan, 2016 SCC 27). Or, at least, that’s the theory. The practice is more complicated as was set out in the Alberta Court of Appeal decision of R. v. Tran, 2024 ABCA 241.
An information charging Mervin Ha Tran with sexual assault committed on Aug. 1, 2021, (the date of his arrest) was sworn on Aug. 24. He was arrested but released with a court date set for Aug. 31. When he appeared in court, he requested an adjournment to retain counsel and obtain disclosure.
A similar request was made on the adjourned date of Sept. 21. Adjournment followed adjournment. Tran finally
Whiskerz: ISTOCKPHOTO.COM
A calculation of the time elapsed between the swearing of the information and the trial date revealed 18 months and 19 days — almost three weeks over the Jordan limit. Tran’s counsel argued his right to a speedy trial had been breached and requested a Charter remedy of dismissal. The trial judge held that even though the defence had not incurred delays as a tactic, much of the delay was attributable to the defence — specifically, the defence was responsible for 41 days of delay. Tran appealed.
On appeal, the defence argued the trial judge had erred in not counting the Crown delay of 23 days from the date of the arrest until the date the information was sworn. The Alberta Court of Appeal rejected the defence position that Ontario courts have calculated time to run from the date of arrest and not from the date the information is sworn. However, those cases, the appellate court held, have no precedential value in Alberta. Instead, it held that in compliance with R. v. Carter, [1986] 1 SCR 981, an accused is charged when the information is sworn rather than when the prosecution has been initiated.
The Alberta court interpreted Carter as saying that s. 11 of the Charter is limited to a particular class of persons “charged with an offence.” It should not be confused with ss. 9 or 10, which deal with investigatory or pretrial matters. The appeal court underlined a clear distinction made by the framers of the Charter between the rights guaranteed to a person arrested and those of a person upon charge. The Alberta appeal court distinguished the Ontario case of R. v. Milani, 2014 ONCA 536, where Milani was charged, had the charges withdrawn but was recharged sometime later, but where the accused person remained subject to the judicial process in the gap period when new charges were expected.
The appeal court also held that the defence was responsible for some of the delay. Delays can result from delays caused by the Crown but waived by the defence or delays directly attributable to the defence. Tran’s case was not complex. The trial judge was in the best position to find that the procedural steps or conduct of the defence between Jan. 27 and March 9, 2022, was tardy. Deference to the trial judge’s finding is owed (R. v. Regan, 2018 ABCA 55).
The final argument by the defence was that even though the delay was “barely” under the presumptive 18-month ceiling, the total delay was nevertheless unreasonable. However, the appeal court held that delay beneath the presumptive ceiling will only be granted in the clearest cases. Even though Jordan recognized that sometimes delay is unreasonable even if the ceiling is not reached. However, to make such a finding, the onus is on the defence to show that it took meaningful steps to expedite the proceedings and that the case took markedly longer than it reasonably should have. Such arguments were not made to the trial judge.
In this case, although the trial began after the 18-month ceiling was reached, the trial judge’s reasoning in deducting the defence delay was correct. This brought the time to trial in line with the Jordan limit.
Defence counsel must be vigilant in bringing applications for delay in situations where the defence can be criticized for causing slower-than-expected processes to unfold. Delay applications involve more than counting days.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.