R. v. Conway (1989), 96 N.R. 241 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Scott Conway (appellant) v. Her Majesty the Queen (respondent)
(No. 20877)
Indexed as: R. v. Conway
Supreme Court of Canada
Dickson, C.J.C., Lamer, La Forest, L’Heureux-Dubé and Sopinka, JJ.
June 22, 1989.
Summary:
The accused was arrested for first degree murder in August 1982, on the date of the offence. In 1983 he was convicted by a jury of second degree murder. The accused appealed his conviction.
The Ontario Court of Appeal, in January 1985, allowed the appeal and ordered a new trial.
The accused’s second trial ended in a mistrial in May 1986. A third trial was eventually scheduled for October 1987. At that time the trial judge granted a stay of proceedings as a remedy for breach of the accused’s right to be tried within a reasonable time contrary to s. 11(b) of the Charter. The Crown appealed the stay of proceedings.
The Ontario Court of Appeal, in a decision reported 26 O.A.C. 389, allowed the appeal, set aside the stay of proceedings and ordered that a new trial proceed as expeditiously as possible. The accused appealed.
The Supreme Court of Canada, Sopinka, J., dissenting, dismissed the appeal.
Civil Rights – Topic 3261
Trials, due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – General – The Charter, s. 11(b), provided that any person charged with an offence has the right to be tried within a reasonable time – The Supreme Court of Canada stated that the main purpose of s. 11(b) is “to minimize the adverse effect on the person charged resulting from the pending disposition of an unresolved criminal charge” – See paragraph 19.
Civil Rights – Topic 3261
Trials, due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – General – The Charter, s. 11(b), provided that any person charged with an offence has the right to be tried within a reasonable time – The Supreme Court of Canada discussed the protection afforded by s. 11(b), what factors are to be considered and balanced in determining whether a delay is unreasonable, the effect of requested or consensual delays (waiver), the approach to be taken in determining if a delay is unreasonable and who has the burden of proving that a delay is unreasonable – See paragraphs 18-27, 64-75, 110-127.
Civil Rights – Topic 3261
Trials, due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – General – In a dissenting judgment, Sopinka, J., of the Supreme Court of Canada, opined that the rights in s. 11(b) of the Charter apply to appellate proceedings (i.e., the right to be tried within a reasonable time) – See paragraphs 99-109 – The majority did not rule on this issue – See paragraph 17.
Civil Rights – Topic 3262
Trials, due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – Waiver of right – [See second Civil Rights – Topic 3261 above].
Civil Rights – Topic 3265
Trials, due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – “Within a reasonable time” – What constitutes – There was a five year delay between the accused’s arrest on suspicion of murder and the commencement of his third trial – His first conviction had been overturned on appeal and his second trial resulted in a mistrial – The third trial was delayed for various reasons – The Supreme Court of Canada examined in detail the delays over the five year period and determined that the delays were not unreasonable within the meaning of s. 11(b) of the Charter.
Civil Rights – Topic 3267
Trials, due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – Onus on accused – The Supreme Court of Canada discussed who has the burden of proving whether a delay is unreasonable within the meaning of s. 11(b) of the Charter – See paragraphs 25-27, 113-127.
Criminal Law – Topic 253
Abuse of process – What constitutes – The accused was convicted of a second degree murder in 1982 – In 1985 a new trial was ordered – The second trial ended in a mistrial in 1986 – A third trial was scheduled for April 1987 but was rescheduled to October when the Crown would not consent to trial by judge alone, insisting on a jury trial – In October the Crown refused to accept the guilty plea to manslaughter, unless the accused made joint submissions with the Crown on sentence – The Supreme Court of Canada affirmed that the Crown’s conduct in April and October did not constitute an abuse of process – See paragraphs 2-16, 97.
Criminal Law – Topic 255
Abuse of process – Power of court to prevent an abuse of process and to grant an accused a stay of proceedings – The Supreme Court of Canada discussed the doctrine of abuse of process and when a stay might be granted to prevent an abuse of process – See paragraphs 7-16.
Criminal Law – Topic 255
Abuse of process – Power of court to prevent an abuse of process and to grant an accused a stay of proceedings – The Supreme Court of Canada stated that “a trial judge has discretion to stay proceedings in order to remedy an abuse of the court’s process. This court affirmed the discretion ‘where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency, and to prevent the abuse of a court’s process through oppressive or vexatious proceedings’ … The judge’s power may be exercised only in the ‘clearest of cases’…” – See paragraph 7.
Cases Noticed:
R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [paras. 7, 8, 16].
R. v. Young (1984), 40 C.R.(3d) 289 (Ont. C.A.), refd to. [para. 7].
R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 8].
R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296, refd to. [paras. 9, 43, 10, 11].
R. v. Turpin, Siddiqui and Clauzel (1987), 22 O.A.C. 261; 36 C.C.C.(3d) 289 (C.A.) affd. 96 N.R. 115, refd to. [paras. 11, 43, 45, 65, 89].
R. v. Pentiluk (1974), 28 C.R.N.S. 324 (Ont. C.A.), refd to. [para. 13].
R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81, consd. [para. 17 et seq.].
United States v. Loud Hawk (1986), 474 U.S. 302 , refd to. [paras. 17, 19, 104].
United States v. MacDonald (1982), 456 U.S. 1, refd to. [para. 19].
Beavers v. Haubert (1905), 198 U.S. 77, refd to. [para. 20].
R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 26 C.C.C.(3d) 481; 29 D.L.R.(4th) 161, consd. [paras. 25, 63, 64, 68, 69, 111, 112, 122, 123, 127, 138].
R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81, refd to. [paras. 34, 35, 132].
R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114, refd to. [paras. 47, 121].
United States v. Tateo (1964), 377 U.S. 463, refd to. [para. 49].
Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 110].
R. v. Big M Drug Mart, [1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 12, refd to. [para. 110].
Barker v. Wingo (1972), 407 U.S. 514, refd to. [para. 113].
R. v. Antoine (1983), 5 C.C.C.(3d) 97, refd to. [para. 113].
R. v. Askov (1987), 37 C.C.C.(3d) 289, refd to. [para. 113].
R. v. Korponay, [1982] 1 S.C.R. 41; 44 N.R. 103, refd to. [para. 120].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 65]; sect. 11(b) [para. 1 et seq.]; sect. 24 [paras. 71, 73].
Criminal Code, R.S.C. 1970, c. C-34, sect. 429, sect. 430 [para. 11]; sect. 465(1)(b) [para. 48]; sect. 473(1) [para. 137]; sect. 534(4) [paras. 12, 14, 61].
Authors and Works Noticed:
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, arts. 5(3), 6(1) [para. 105].
Counsel:
Alan D. Gold and Donald B. Bayne, Q.C., for the appellant;
Brian J. Gover and Curt M. Flanagan, for the respondent.
Solicitors of Record:
Gold & Fuerst, Toronto, Ontario, for the appellant;
The Ministry of the Attorney General, Toronto, Ontario, for the respondent.
This appeal was heard on December 16, 1988, before Dickson, C.J.C., Lamer, La Forest, L’Heureux-Dubé and Sopinka, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was rendered in both official languages on June 22, 1989, including the following opinions:
L’Heureux-Dubé, J., (Dickson, C.J.C. and La Forest, J., concurring) – see paragraphs 1 to 61;
Lamer, J. – see paragraphs 62 to 75;
Sopinka, J., dissenting – see paragraphs 76 to 138.
