Carter v. The Queen

Lamer J.‑‑The issue in this appeal is whether pre‑charge delay may be considered in determining whether a person charged with an offence has been tried within a reasonable time pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms (Constitution Act , 1982 , as enacted by the Canada Act 1982, 1982 (U.K.), c. 11).

The Facts

The offences of rape, buggery, gross indecency and indecent assault are alleged to have been committed by the accused on April 3, 1980. On April 4, 1980, L. H. lodged a complaint with the Vancouver Police Department concerning the first three offences and J. O. entered a complaint with respect to the fourth. The police investigation began on April 7, 1980. The police were then unable to locate the complainant L. H. as she had left her residence, leaving no forwarding address. The complainant was located in October of 1982 and interviewed by the police on November 29th, December 1st and 7th of 1982.

The accused was first informed of the investigation on January 4, 1983. On January 28, 1983, an information respecting all four alleged offences was laid against the accused and he appeared on that date in Provincial Court. On March 8, 1983, the accused made a personal appearance with his counsel and a preliminary inquiry was set for May 24, 25 and 26, 1983. At the request of counsel for the accused, the date of April 5, 1983, was set for the hearing of a constitutional argument. On April 5, Crown and defence counsel by agreement adjourned the constitutional argument to April 25, 1983. On April 25, counsel for the accused was unavailable and the matter was adjourned to May 6, 1983. On May 6, the Provincial Court judge directed that evidence be called by the Crown with respect to events between the date of the alleged offences (April 3, 1980) and the date on which the information was laid against the accused (January 28, 1983).

The Judgments

Provincial Court

Craig Prov. Ct. J., held that the accused's constitutional rights under s. 11(b) of the Charter had been violated and ordered a stay of proceedings. He stated that although the Vancouver Police had not been negligent in the case, the delay which had occurred between April 3, 1980 and January 28, 1983, as a result of the unavailability of the victim L. H., was nevertheless "totally unreasonable". The learned judge also stated that he had to be "concerned with the delay from the date of the transaction" and thus took into consideration both pre‑Charter and pre‑charge delay in assessing the reasonableness of pre‑trial delay under s. 11(b).

In identifying the interests of the accused that had been impaired by the delay, the judge stated that,

It's necessary that an accused person have the ability to recall and to call upon his witnesses and to make his own investigations. All of that, in my view, has been denied the accused in this case and for the reasons that I have recounted I will stay the proceedings.

Supreme Court of British Columbia

Upon an application by the Crown for certiorari to quash the stay of proceedings and mandamus directing a judge of the Provincial Court to proceed with the preliminary inquiry or trial of the charges, McKay J. held that the accused's s. 11(b) rights had not, in the circumstances, been violated and issued the orders for certiorari and mandamus: (1983), 9 C.C.C. (3d) 173.

On the issue of pre‑charge delay, McKay J. stated at pp. 178‑79:

I have no doubt that relief is available under s. 11(d) or s. 7 and possibly by way of a finding of abuse of process if it is demonstrated that pre‑information or pre‑indictment delay would cause substantial prejudice to an accused's right to a fair trial and that the delay was caused by the police or the Crown for an oblique purpose. There is no need to strain the clear wording of s. 11(b) to provide relief from pre‑information delay. I am not suggesting that this is an appropriate case for such relief.

McKay J. also added, however, that the existence of pre‑information delay, as opposed to the reasons for the delay, may well be a factor when considering post‑information delay under s. 11(b).

Court of Appeal

The Court of Appeal (1984), 11 C.C.C. (3d) 284, 8 D.L.R. (4th) 156, 9 C.R.R. 345 upheld the judgment of McKay J., generally agreeing with his reasons with the exception of one caveat. The court preferred not to express an opinion on the statement of McKay J. that the existence of pre‑information delay may be considered when assessing post‑information delay.

Pre‑Charge Delay

The accused in this case was "charged" as of the service of a summons pursuant to the laying of the information, which means that he was charged on January 28, 1983.

As I have indicated in Mills v. The Queen, [1986] 1 S.C.R. 863, which has been handed down this same day, the time frame to be considered in computing trial within a reasonable time generally runs only from the moment a person is charged. In passing, I might add that I say "generally" because there might be exceptional circumstances under which the time might run prior to the actual charge on which the accused will be tried. As an example, if the Crown withdraws the charge to substitute a different one but for the same transaction, the computation of time might well commence as of the first charge. This is not in issue here and reference to this situation is only illustrative of my resort to the word "generally". Consequently, the period running from April 3, 1980 to January 28, 1983, should not have been taken into consideration when assessing the reasonableness of the delay under s. 11(b).

Moreover, I must respectfully disagree with McKay J.'s suggestion that pre‑information delay may be given some weight when assessing the reasonableness of post‑charge delay. This is because prior to the charge, the liberty of the individual will not be subject to restraint nor will he or she stand accused before the community of committing a crime. Thus, those aspects of the liberty and security of the person which are protected by s. 11(b) (as opposed to those other aspects of the liberty and security of the person which are protected through s. 7 and s. 11(d)) will not be placed in jeopardy prior to the institution of judicial proceedings against the individual. Hence, pre‑charge delay is irrelevant to those interests when they are protected by s. 11(b).

The only period of time which may properly be considered in assessing whether or not a violation of s. 11(b) has occurred is that period running from January 28, 1983 to May 6, 1983, the date on which the inquiry into the reasonableness of the delay began. Only 3½ months had elapsed and the applicant has not suggested that this time span was in violation of s. 11(b). It is obvious that the applicant was relying on the pre‑charge delay; in any event, most of the post‑charge delay was with the accused's consent, indeed a good part of it was at his own request.

Section 11(d) and Abuse of Process

There is no suggestion of any deviousness or maliciousness, or of any offensive or vexatious conduct on the part of the police. There can therefore be no finding of abuse of process. The sole remaining question is whether or not the accused has been deprived of his right to a fair hearing under s. 11(d) as a result of the delay.

Appellant has not argued s. 11(d) in this Court. In any event, I find in the record of the pleadings below no indication by the applicant of the way in which he has been deprived of his right to a fair trial, apart from the simple passage of time.

I would add as a final note that, given my findings in Mills, Craig Prov. Ct. J. sitting at the preliminary inquiry stage, was not a court of competent jurisdiction to order the stay of proceedings for a s. 11(b) violation.

I would, for the reasons given above, dismiss the appeal.

The following are the reasons delivered by

Wilson J.‑‑I agree with my colleague, Lamer J., that the period of time to be considered in determining whether or not an accused has been tried within a reasonable time under s. 11(b) starts to run when a person is charged.

However, I do not share my colleague's view that delay in laying the charge cannot (except in exceptional circumstances) be considered in assessing the reasonableness of the delay under s. 11(b). If the basis of the alleged unreasonableness under s. 11(b) is not the post‑charge delay per se but the fact that the post‑charge delay has impaired the accused's right to make full answer and defence to the charge, then I think pre‑charge delay may very well be relevant on that issue.

My colleague acknowledges that pre‑charge delay may be considered under s. 11(d) and in relation to an allegation of abuse of process and I agree that this is so. My disagreement on its relevance under s. 11(b) flows from the disparity of views my colleague and I expressed in Mills v. The Queen, [1986] 1 S.C.R. 863 (which has been handed down this same day), as to whether or not prejudice is relevant in assessing reasonableness under s. 11(b).

The appellant in this case has not submitted that the post‑charge delay of three and a half months was unreasonable in the sense that it hampered him in his defence. Thus the question of whether the pre‑charge delay contributed to or underscored the prejudice flowing from the failure to be tried within a reasonable time does not arise in this case.

I agree with my colleague that Craig Prov. Ct. J. sitting at the preliminary inquiry was not a court of competent jurisdiction within the meaning of s. 24(1). I agree with my colleague that the appeal should be dismissed.