R. v. Green

R. v. Green Court Court of Appeal Date 1994-01-11 Citation 1994 NSCA 32 Docket CAC 02835 Judge/Registrar/Adjudicator Hallett, J. Doane (Honourable Justice) (CA); Matthews, Kenneth M., (Honourable Justice); Pugsley, Ronald N. (Honourable Justice) Document Type Decision Decision Content C.A.C. No. 02835 NOVA SCOTIA COURT OF APPEAL Hallett, Matthews and Pugsley, JJ.A. Cite as: R. v. Green, 1994 NSCA 32 BETWEEN: ) ) JAMES ANDREW GREEN ) Maurice G. Smith ) for the Appellant Appellant ) ) - and - ) ) HER MAJESTY THE QUEEN ) Robert E. Lutes, Q.C. ) for the Respondent Respondent ) ) ) ) ) ) Appeal Heard: ) November 26, 1993 ) ) ) Judgment Delivered: ) January 11, 1994 THE COURT: The appeal is dismissed as per reasons for judgment of Pugsley, J.A.; Hallett and Matthews, JJ.A., concurring. PUGSLEY, J.A.: This appeal is concerned with the appellant's right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter. The appellant was convicted by a judge sitting alone, of committing an aggravated assault, contrary to s. 268(a) of the Criminal Code, and sentenced to 18 months incarceration, to be followed by a year's probation. RULING BY THE TRIAL JUDGE ON THE S. 11(b) APPLICATION: Prior to the commencement of trial, the appellant made a preliminary motion for a stay of proceedings, pursuant to s. 24(1) of the Charter, alleging a violation of s. 11(b). The appellant gave evidence as did one other witness on his behalf. The Crown called no evidence on the motion. The trial judge, after hearing submissions, made the following ruling: "We have to look at the . . . there is no question in my mind that a 17 month delay in this area is far too long, and surely that is a - and we don't go by the surely rule, but that is self-evident. Then we have to look - this is a violation of the Charter right to be tried within a reasonable time and we also have to look at - there was no waiver - not a point - not in question here. The question we have to look at is prejudice. Now, as some of the authorities have indicated that any person charged with an offence is immediately prejudiced to some extent, and what it amounts - what it comes down to is whether the prejudice is such - of such an extent and nature, that the administration of justice is brought into disrepute . . . I am of the view that there has been a violation of Mr. Green's Charter rights, s. 11(b). I am also of the view that it is not one which requires a stay of proceedings, s. 24, but the matter of trial should go ahead." (emphasis added) The words employed by the trial judge suggest that rather than considering s. 24(1) (anyone whose rights or freedoms as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances), he concluded that the matter was governed by s. 24(2) (where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute). The issue relates to trial within a reasonable time rather than the exclusion of evidence, hence clearly falls within s. 24(1). The conclusion of the trial judge to proceed with the trial is contrary to the opinion of the majority of the court in R. v. Rahey (1987), 39 D.L.R. (4th) 481 (S.C.C.) where it was determined that a stay of proceedings is the "minimal", or the "appropriate and just" remedy for an infringement of the right to be tried within a reasonable time. See also Regina v. Askov (1991), 59 C.C.C. (3d) 449, (S.C.C.) and R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.). The appellant submits that the trial judge failed to properly apply the law as set out in Askov and Morin by specifically refusing the requested remedy of a stay of proceedings after finding that the appellant's s. 11(b) Charter rights had been infringed. The appellant also submits that the trial judge erred in failing to find that the appellant suffered both actual, as well as presumed prejudice, consequent upon the delay that occurred between the swearing of the information (August 4, 1991) and the commencement of trial (January 28, 1993). RESPONDENT'S NOTICE OF CONTENTION: This appeal was heard on November 24, 1993. In the respondent's factum filed on November 19, 1993, the respondent took issue: ". . . with the finding of the trial court that there has been a breach of s. 11(b) of the Charter. It is recognized by the respondent that the proper procedure was to file a Notice of Contention, pursuant to Civil Procedure Rules 62.09(1) and 65.03(1) and (2) with the Registrar within 15 days from the service of the Notice of Appeal. This procedure was not followed but the respondent hereby gives notice that a request will be made to the court at the time of the hearing of the appeal to take issue with that finding." The authority of an appeal court to grant leave to a respondent was considered in Perka v. The Queen, [1984] 2 S.C.R. 232. Dickson, J. (as he then was) on behalf of the court stated: "In both civil and criminal matters it is open to a respondent to advance any argument to sustain the judgment below, and he is not limited to appellants' points of law. A party cannot, however, raise an entirely new argument which has not been raised below and in relation to which it might have been necessary to adduce evidence at trial . . . that is not the case here. The necessity defence was raised and fully argued in both courts below. Therefore, if we regard the Crown's submission as an argument to sustain the judgment below, this court undoubtedly has jurisdiction to hear and decide the issue." In this case, the respondent had argued, at trial, that the pre-trial delay was not unreasonable. Counsel for the respondent at trial was counsel local to the area (ie. Antigonish), while the appeal before this court was conducted by counsel from the Appeals Branch of the Public Prosecution Services in Halifax. At the time of the filing of the respondent's factum (November 19, 1993), the court was provided with a supplementary appeal book which contained a transcript of the submissions of counsel for both parties, before the court between August 7, 1991 and September 9, 1992. These transcripts contain relevant information, which go to the heart of the issue in this appeal. This material was not available to the trial judge when he considered the s. 11(b) application. In R. v. Firth (1992), 109 N.S.R. (2d) 342, Hallett, J.A. of this court, outlined appropriate procedures to follow when an accused applies for a stay of proceedings based on an alleged infringement of his s. 11(b) Charter rights. He cited with approval R. v. Holt (1991), 117 A.R. 218 wherein McClung, J.A. on behalf of the Alberta Court of Appeal stated at p. 222: "The history of the case should be presented to the court documented by a transcript (where such transcripts are available) as opposed to counsel's giving their memories often diverging, of why earlier remands or adjournments were granted." While there was not any conflict between counsel as to what was said, or not said, in court at the two critical meetings of June 10 and September 9, 1992, it obviously would have been helpful for the trial judge to have been aware of the position taken by appellant's counsel on both of those occasions. The certificate of the court reporter dated November 8, 1993, which is annexed to the transcripts, demonstrates that this relevant material was not available to counsel for the respondent at this appeal until at least November 8, 1993. This, in part, explains the delay by the respondent in taking issue with the finding of the trial judge that there was a violation of s. 11(b). The appellant has raised, in its Notice of Appeal, issues involving both s. 11(b) as well as s. 24(1). It is entirely appropriate in the circumstances of this case for the respondent to contest both issues. I would grant leave to the respondent to take issue with the trial judge's finding of a violation of the appellant's rights under s. 11(b). FACTUAL BACKGROUND: The delay in this case was occasioned primarily by the mandatory retirement of Judge MacPherson, the County Court Judge of District Number Six, on March 6, 1991. His replacement, Judge MacLellan, was not sworn in until May 10, 1992. Judge MacLellan had been employed at Legal Aid prior to his elevation and it was a common position taken by counsel, as well as by Judge MacLellan, that it would be inappropriate for him to hear any cases wherein the accused had obtained representation by Legal Aid while Judge MacLellan was still employed at Legal Aid. The appellant, in this case, was represented by Legal Aid throughout. The following are the key dates: - August 3, 1991 - date on which the offence is alleged to have occurred. - August 4, 1991 - the swearing of the information, appellant brought before the Provincial Court, remanded in custody to appear again on August 7, 1991. - August 7, 1991 - appellant released from custody on a recognizance listing the following seven conditions: 1. Keep the peace and be of good behaviour. 2. Remain within the Port Hawkesbury area. 3. Attend R.C.M.P. Detachment each Friday in person between 9:00 a.m. and 4:00 p.m. starting August 9, 1991. 4. Curfew from 11:00 p.m. to 7:00 a.m. 5. Abstain absolutely from the use of alcohol and nonprescription drugs. 6. Have no contact with the victim or any Crown witness or any one with known criminal records. 7. Live with parents in Port Hawkesbury. - August 19, 1991 - election to County Court. - August 29, 1991 - appellant appeared before the Provincial Court to request a change in the recognizance to allow him to attend a family wedding outside the geographical area noted in the recognizance - granted. - November 4, 1991 - appellant waived preliminary inquiry and committed to stand trial in the County Court. The appellant and his counsel were advised by the judge that "the court will be in touch with you or your solicitor for an arraignment date in setting a trial date". - November 27, 1991 - Crown attorney wrote Chief Judge: "I would ask you to please advise if a judge could be assigned to hear this case in the County Court for District Number Six in Port Hood. From the Crown's point of view, it is important that the case be heard within a reasonable period of time because of the seriousness of the charge." - November 28, 1991 - Chief Judge responded: "I do not presently have a judge which I can assign to this case. I appreciate that the Crown considers this case important, however, I should indicate that an appointment of a judge for District Number Six is also important. Perhaps if you and Mr. Smith (counsel for the appellant) might come up with some dates in February or March which might be satisfactory to you, I will see if someone might possibly be available." - December 10, 1991 - Crown attorney wrote to the Chief Judge advising that he had contacted Mr. Smith and that they both jointly agreed on seven dates in February, 15 days in March and two days in April and that it was expected the trial would take approximately two days. - December 13, 1991 - Chief Judge responded: "After reviewing the situation, I have determined that there is just no way I can spare a judge to hear this matter. I have written to the various clerks that no judges will be available to hear trials until a new judge is appointed. We cannot hurt other Districts because there is a vacancy in District Number Six." - May 10, 1992 - Judge MacLellan appointed to fill the vacancy. - June 10, 1992 - Judge MacLellan presided. Mr. Smith advised the court that he was acting on seven matters that were in the Legal Aid office at the time of Judge MacLellan's appointment. It was agreed by Crown counsel and Mr. Smith that four criminal matters had priority (because of the date the information was laid) over the appellant's case. Judge MacLellan stated: "Basically what we're looking at if we are not looking at then we're looking at some time probably in October or November because we would have to make arrangements to have (the replacement judge) come - he's prepared to come down but locked off that time anticipating that people wanted to get on quickly, but if people don't want to get on quickly . . . Mr. Smith: - . . . I want to get on quickly if I can, Your Honour." Mr. Smith was advised that the appellant's trial could take place on July 27th and 28th. Mr. Smith was not, however, available on those dates. Judge MacLellan asked, "Is time a concern here?" The Crown advised that committal was November 4th, 1991. Mr. Smith then responded: "I wouldn't want it to go over a year, Your Honour, but I'm not - up until this point - I don't see time as being an issue." (emphasis added) Judge MacLellan suggested putting the matter over until September 9th for arraignment, plea and setting a date to which Mr. Smith responded: "That's fine, Your Honour." Crown counsel advised the court that the week of the 13th or 19th of October was convenient for the Crown but Mr. Smith responded that the only dates that were convenient for him were October 14th, 15th and 16th because of other commitments. - September 1, 1992 - Mr. Smith wrote Judge MacLellan: "We are concerned that if we wait until the next appearance before Your Honour in Port Hood that it will be a number of months further before both the Crown and defence are available to set trial dates. We would prefer to have an earlier meeting in order to block off the time to complete the necessary conflict cases." In response to Mr. Smith's letter of September 1st, Judge MacLellan arranged for hearing in Antigonish on September 9th. - September 9, 1992 - Judge MacLellan advised Mr. Smith of dates during the week of November 23rd that were available for trial. Mr. Smith advised the court that he was available on November 25th and 27th but that he was already booked in other courts on other days that he could not change. He stated: ". . . that's no good telling me today that the week in November is free, I'm booked up months in advance. What I am asking is that you get a week when - when counsel are available . . . I propose Your Honour that we set these matters over, the ones that I am involved in for a time certain perhaps in - January and - set them all out so that we are all available at the same time." It was agreed the trial would take place on January 28 and 29, 1993 commencing at 10:00. Mr. Smith then advised the court: "And there will be a - a Charter argument on this case and I don't know what - if we'll deal with it at that time. The Court: A Charter argument re delay? Mr. Smith: Yes. The Court: Well, I'd ask that the record disclose then that the defence were offered some dates in November which they weren't available for." - January 28, 1993 - trial commenced and concluded on January 29th. ISSUES: (1) Were the appellant's rights under s. 11(b) violated? (2) In view of the trial judge's finding of a s. 11(b) violation, and taking into account Lamer, J.'s (as he then was) statement in Rahey ("no court has jurisdiction to try him or order that he be tried in violation of that right") was the continued proceeding before the trial judge a nullity? FIRST ISSUE: The right to be tried within a reasonable time is a concept that only has received significant judicial scrutiny since the advent of the Charter. As Professor Stuart points out (Charter in Canadian Criminal Law, Carswell, (1991) at 225): "The common law knew no time limitations running against the Monarch which would bar criminal prosecution. Prior to the enactment of s. 11(b) of the Charter, there were a few statutory limitation periods on criminal prosecutions. Under the Criminal Code, there were scattered statutory exceptions and a major exception in that summary conviction proceedings cannot be instituted under s. 786(2) "more than six months after the time when the subject matter of the proceedings arose"." The stay is a remedy that is equivalent to an acquittal and accordingly should only be granted in the "clearest of cases" (R. v. Conway, [1989] 1 S.C.R. 1659 at 1657). LeDain, J. commented in Rahey: "There is no doubt, as suggested by LaForest, J. and the critics of the American jurisprudence that this drastic outcome must inevitably influence the determination whether there has been an infringement of the right to be tried within a reasonable time." Chief Justice Dubin in R. v. Bennett (1991), 6 C.R. (4th) 22 referred to the serious impact on the administration of justice in the Province of Ontario resulting from the staying of approximately 35,000 counts within the six month period after the judgment of the Supreme Court of Canada in Askov. The Chief Justice expressed concern about the erosion of public confidence in the administration of justice; a similar concern was expressed in this Province. It is apparent in the decisions of the Supreme Court since Askov that a rigid mathematical computation of elapsed time is not the appropriate model; rather the court has emphasized a flexible approach to the interpretation of the Charter and, in particular, to s. 11(b). In Morin, Sopinka, J. stated at p. 784: "The development of the jurisprudence relating to s. 11(b) is instructive in that it underscores the importance of avoiding rigidity in the interpretation of new constitutional rights early in the life of a constitutional document . . . Embarking as we did on unchartered waters, it is not surprising that the course we steered has required, and may require in the future, some alteration in its direction to accord with experience." Morin is also noteworthy because of the emphasis placed upon the recognition of the interests of society while considering s. 11(b) applications. The majority of the court in Morin referred to the society interest as a "secondary interest" subordinate to the primary purpose ie. the protection of the individual rights of the accused. Both McLachlin, J. and Gonthier, J., in concurring judgments, elevated the secondary society interest to a "fundamental and important interest" that was entitled to as much consideration as the prejudice suffered by the accused in a long delay. With the background of these general comments, one should consider each case for delay in the light of the four factors listed by Sopinka, J. in Morin: "(1) The length of the delay. (2) Waiver of time periods. (3) The reason 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; (e) other reasons for delay; and (4) Prejudice to the accused." The following matters are then of significance in this appeal: (1) The time lapse between November 4, 1991 and January 28, 1993 is sufficient to cause an examination to determine if s. 11(b) rights were violated. (2) The Chief Judge and the Crown took every reasonable step to have the trial set down as early as possible. Some allowance must be made for the lack of resources of courtrooms, judges and Crown counsel in Canada (R. v. Mills, [1986] 1 S.C.R. 863). Sopinka, J. in Morin wrote at p. 795: "We live in a country with a rapidly growing population in many regions in which resources are limited. In applying s. 11(b) account must be taken of this fact of life." (3) Judge MacLellan's previous association with Legal Aid created a conflict which resulted in a further delay of approximately seven months. (4) Appellant's counsel was not available for open trial dates in July of 1992, approximately eight and one-half months after the appellant's election to be tried in County Court. (5) In response to Judge MacLellan's question, "Is time a concern here?", Crown counsel advised that committal was November 4, 1991. Mr. Smith responded that he "wouldn't want it to go over a year". Judge MacLellan presumably interpreted this remark to mean that Mr. Smith was seeking a trial date before November, 1992. This inference is reinforced by Mr. Smith's additional comment ("up until this point I don't see time as being an issue"), as well as his agreement to place the matter on the chambers docket for September 9th for a plea and setting a date. (6) On September 9th, Mr. Smith advised the court that a trial date of November 25th or November 27th was "fine with me", which obviously was an extension of the time he had suggested on June 10th. No courthouse being available on November 25th, and personally not being available earlier in November, Mr. Smith then suggested dates in January. The comments of Sopinka, J. in R. v. Smith, [1989] 2 S.C.R. 1120 and p. 1136 are apposite: "Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right to subsequently allege that an unreasonable delay has occurred. While silence cannot constitute a waiver, agreeing to a future date for a trial or a preliminary inquiry would generally be characterized as more than silence." (7) After agreeing to the January 28th trial date, the appellant's counsel for the first time advised the court that a Charter argument would be raised. (8) The charge is a most serious one, conviction for which renders one liable to imprisonment for 14 years. Sopinka, J. noted in Morin that "as the seriousness of the offence increases so does the societal demand that the accused be brought to trial". (9) The factor of prejudice to the accused should be examined in the light of the three individual rights which the section seeks to protect, namely: (1) the right to security of the person; (2) the right to liberty; (3) the right to a fair trial (Sopinka, J. in Morin at 786). No argument has been advanced by the appellant that there was not a fair trial and although the security of the person is affected by delay, the focus of the appellant's submission is that his "right to liberty" has been infringed. An examination of the seven conditions listed in the recognizance suggest that only five affected his freedom, namely: (1) Remain within the Port Hawkesbury area - This condition was varied temporarily on August 29, 1991 at the request of the appellant. No further application was made for variation. While the appellant alleged that he was unable to take advantage of job opportunities outside the Port Hawkesbury area, he did not apply to vary the condition nor was he able to obtain any work from September 9, 1992 (the day the recognizance was lifted) to the date of trial, January 28, 1993. (2) Attend at the R. C. M. P. Detachment each Friday - the appellant acknowledged that this condition was "no trouble" to him. (3) Curfew from 11:00 p.m. to 7:00 a.m. - there was a breach of the curfew during the term of the recognizance and the appellant complained he was unable to start hunting before 7:00 a.m. during the season. (4) Abstain absolutely from the use of alcohol and non-prescription drugs - the appellant only attained his majority on April 25, 1992 and the recognizance was lifted on September 9 of the same year, hence the provision could only be advanced as limiting for a period of four months. (5) Have no contact with the complainant or Crown witnesses or anyone with known criminal records - there was no evidence that this caused any hardship. (6) Live with parents in Port Hawkesbury - this apparently did not constitute a major inconvenience in that the appellant continued to live at home after the recognizance was vacated. Counsel for the respondent points out two additional factors which are pertinent in viewing the allegation of prejudice: The appellant's counsel on August 7, 1991, the date the recognizance was imposed, advised that "my client has heard those conditions and he has no problem with those". Twelve days later, at the hearing to amend one of the conditions, his counsel advised the court: "If Your Honour pleases, Mr. Green has been at large on certain conditions. I would ask that that recognizance continue." The time elapsed between November 1991 and June 1992 is a normal hiatus to bring a matter of this nature to trial even if a successor judge had been appointed at the time of the appellant's election. That conclusion is reflected in the comments of appellant's counsel when he advised the court on June 10, 1992 that "time to date is not an issue". The time lapse between June 1992 and the commencement of trial on January 28, 1993, I do not consider to be excessive when viewed in the light of the following: - Judge MacLellan was appointed in May but was not able to sit as a trial judge because of his prior employment with Legal Aid. - trial dates suggested in July and November were not convenient for appellant's counsel; - limitations under the recognizance were lifted on September 10, 1992; - the appellant's counsel took the initiative in suggesting a trial date in January, 1993 to ensure that prior commitments, including his own, would not impair any further dates; - there is no evidence of trial prejudice to the appellant, ie. no suggestion that witnesses favourably to the appellant were not available or that their evidence was not "fresh". The restrictions which limited the activities of the appellant for a period of 13 months do not, in my opinion, equate with the strong public interest in bringing the appellant to trial on this serious charge. The majority of the court in Morin determined that a delay of 14 1/2 months between charge and trial on a summary conviction offence may be excused "in suitable circumstances". "Suitable circumstances", as disclosed in the transcript of the two Chamber applications held in June and September, exist in this case. A delay of 14 1/2 months between election and trial was not unreasonable.. I come to this conclusion without resort to the burden of proof (R. v. Smith, [1989] 2 S.C.R. 1120). I conclude that the appellant's rights under s. 11(b) have not been violated. SECOND ISSUE: In the light of the conclusions that the trial judge was in error when he determined that the appellant's s. 11(b) rights were violated, what is the appropriate disposition of this appeal? There are two choices: (1) a determination that the trial judge lost jurisdiction after his Charter conclusions were announced, and that the subsequent trial, conviction and sentence were a nullity. In this scenario, a new trial should be ordered. The majority of the court in Mills concluded that the court did not lose jurisdiction once a breach of s. 11(b) was determined. McIntyre, J. (with whom Beetz, J. and Chouinard, J. concurred) wrote at p. 964: "As I understand the argument, it would be where unreasonable delay is found to have occurred in the course of the prosecution of an offence, the court before which the proceeding is taken will thereby have been deprived of jurisdiction to deal further with the case and the prosecution would come to an end. I reject this view . . . In my view, the fact that a Charter right has been infringed does not of itself give rise to jurisdictional error, and I see no basis for the characterization of some Charter violations as jurisdictional while others are not." LaForest, J. was also of the same view (at p. 973). Less than a year later, Rahey was argued before a nine person court, but Chouinard, J. took no part in the judgment. Lamer, J. (with whom Dickson, C.J. and Estey, J. concurred) stated at p. 498: "If an accused has the constitutional right to be tried within a reasonable time, he has the right not to be tried beyond that point in time, and no court has jurisdiction to try him or order that he be tried in violation of that right." (emphasis added) Wilson, J. took the same view (p. 500). LeDain, J. stated at p. 507: "Finally, I am of the view, that a stay of proceedings is the appropriate and just remedy for an infringement of the right to be tried within a reasonable time. I do not find it necessary, in support of this conclusion, to characterize such an infringement as going to the jurisdiction to try an accused, although such a characterization may well be justified for other purposes." Beetz, J. concurred with this view, which represented a change in his position from that expressed in Mills. LaForest, J., with whom McIntyre, J. concurred, adhered to the majority position in Mills. Hence in Rahey, four members of the court concluded that if a trial judge finds there has been a violation of s. 11(b), there was a loss of jurisdiction to proceed further with the trial, two members affirmed the opinion of the majority in Mills, and the other two did not find it necessary to "characterize such an infringement as going to the jurisdiction to try an accused." (2) The other choice is to dismiss the appeal, affirming the conviction and sentence. This disposition, in my opinion, is the appropriate one. No argument has been raised by the appellant that the trial, per se, was unfair or the sentence unfit. I do not interpret the opinion of four of the eight judges in Rahey, in light of the majority opinion in Mills, to constitute a mandate that whenever a trial judge concludes that s. 11(b) Charter rights have been violated, that the trial judge immediately loses jurisdiction and is functus. There are, in my opinion, compelling reasons, in favour of the conclusion that the trial judge retains jurisdiction. Section 11(b) does not contain a remedial provision. An individual whose s. 11(b) right has been violated is entitled to apply under s. 24(1) to ensure enforcement of the guaranteed right. While a stay constitutes the minimum remedy, the Supreme Court of Canada has indicated that additional remedies in some cases may be warranted (Lamer, C.J.C. in Askov at p. 456). The trial judge is the appropriate arbiter to consider an application for an additional remedy. To send this matter back for retrial would constitute an unwarranted waste of judicial and other resources. The trial judge did not lose jurisdiction as, in my opinion, his conclusion that the evidence established a violation of s. 11(b), was in error. I would dismiss the appeal and affirm the conviction and sentence. J.A. Concurred in: Hallett, J.A. Matthews, J.A.