There is a residual discretion in a trial court Judge to stay proceedings when compelling an accused to stand trial would violate those fundamental principles of Justice that underlie the community’s sense of fair play and decency, and to prevent an abuse of the court’s process through oppressive or vexatious proceedings.6 It is a power, however, of special application that can only be exercised in the clearest of cases.7 An example of a potentially successful application would be a finding by the court that delay, caused by the actions of the Crown, was for an ulterior motive, such as, depriving the accused the opportunity to make full answer and defence.
The courts are unable to supervise the efficiency of police services, or to compel the police or the Crown to institute proceedings before there are reasonable grounds to believe the accused’s guilt can be established beyond a reasonable doubt. Forcing the courts to adopt such a supervisory role could have a deleterious effect upon the rights of the accused and upon the ability of society to protect itself.
A distinction is made between the valid institution of proceedings where the only issue is delay prejudicial to the accused, and, where investigative acts lead to the institution of the proceedings that are offensive to the principles upon which the administration of justice is conducted by the court. Fairness of a trial is not automatically undermined by even a lengthy pre-charge delay. Fairness must be decided on a case-by-case basis.
Subsection 11(b) does not apply to appellate delay. This subsection will, however, provide a remedy when delay of appellate proceedings affects the overall fairness of the trial. The appellate court is the appropriate forum to determine whether there has been a violation. To date no appellate court has decided this issue against itself. The Court of Appeal for Ontario, however, has recently considered overall delay in trial proceedings as a reason to stay sentences that the court described as not reflecting society’s condemnation of the conduct, and, demonstrably unfit. Conditional sentences of forty-five days were overturned for terms of imprisonment of three years for each of five police officers found guilty of attempting to obstruct Justice and perjury. Because of delay of approximately ten years leading up to the convictions the sentences were stayed.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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