R. v. Godin (M.) (2009), 252 O.A.C. 377 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
…………………….
Temp. Cite: [2009] O.A.C. TBEd. JN.044
Marcel Godin (appellant) v. Her Majesty The Queen (respondent)
(32740; 2009 SCC 26; 2009 CSC 26)
Indexed As: R. v. Godin (M.)
Supreme Court of Canada
McLachlin, C.J.C., Binnie, Deschamps, Abella, Charron, Rothstein and Cromwell, JJ.
June 4, 2009.
Summary:
The accused was charged with a violent sexual assault, uttering a death threat, and unlawful confinement. He applied to stay the proceedings, arguing that his right to trial within a reasonable time under s. 11(b) of the Charter had been infringed. The delay between the time that he was charged and the scheduled trial was 30 months. The trial judge allowed the application. The Crown appealed.
The Ontario Court of Appeal, Glithero, R.S.J.(ad hoc), dissenting, in a decision reported at 237 O.A.C. 324, allowed the appeal, set aside the stay and directed that the matter proceed to trial. The accused appealed as of right, given the dissent.
The Supreme Court of Canada allowed the appeal and restored the stay of proceedings entered by the trial judge. The trial judge correctly concluded that the delay in this case was unreasonable.
Civil Rights – Topic 3265
Trials – Due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – What constitutes “within a reasonable time” – The accused was charged with a violent sexual assault, uttering a death threat, and unlawful confinement of his ex-girlfriend – He applied to stay the proceedings, arguing that his right to trial within a reasonable time under s. 11(b) of the Charter had been infringed – The delay between the time that he was charged and the scheduled trial was 30 months – There was a long delay in obtaining and disclosing potentially important forensic evidence – There was a failure to acknowledge or respond to defence counsel’s effort to obtain earlier dates – Also the long-delayed preliminary inquiry was adjourned because there was not sufficient court time for it to proceed on the date set – Therefore, a one-day preliminary inquiry was not completed until 21 months after the charges had been laid – The trial judge allowed the application – A majority of the Ontario Court of Appeal allowed the Crown’s appeal and set aside the stay – The Supreme Court of Canada allowed the accused’s appeal and restored the stay – This was not a complex case – A delay of 30 months far exceeded the guidelines (14 to 18 months) set out in R. v. Morin (S.C.C.) and was “striking”, given that the delay was virtually entirely attributable to the Crown or institutional delay and was largely unexplained – The length of the delay and the evidence supported the trial judge’s inference that some prejudice to the accused resulted from the delay – There was a strong societal interest in having serious charges tried on their merits – However, the progress of this case was delayed to such a degree that the accused’s constitutional right to be tried within a reasonable time was violated.
Civil Rights – Topic 3270
Trials – Due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – Evidence of prejudice and causes of delay – The accused was charged with a violent sexual assault, uttering a death threat, and unlawful confinement of his ex-girlfriend – A vaginal swab was taken from the complainant – However, it was not until nearly nine months later and only four days before the trial was scheduled to begin that the Crown received a report respecting DNA analysis which showed that the semen found did not match the accused – The Crown promptly disclosed this information to the defence – But, given its potential importance and the proximity of the trial dates, it was agreed that the trial could not proceed as scheduled – The Crown and defence agreed that the Crown would re-elect to proceed by indictment in order to give the defence the opportunity to explore the complainant’s evidence and the report at a preliminary inquiry – The proceedings were substantially delayed – The accused argued that his right to trial within a reasonable time (Charter, s. 11(b)) was infringed – The Supreme Court of Canada held that although the re-election and resulting preliminary inquiry benefited the accused, it could not be used to undercut the accused’s position that the delay was unreasonable – Had the Crown obtained the forensic evidence within a reasonable amount of time, the re-election and preliminary inquiry could have happened much sooner – The accused was entitled to timely disclosure and did not receive it – See paragraph 20.
Civil Rights – Topic 3270
Trials – Due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – Evidence of prejudice and causes of delay – An accused applied to stay proceedings on the basis that his right to trial within a reasonable time (Charter, s. 11(b)) had been infringed – The delay between the time he was charged and the scheduled trial was 30 months – The trial judge allowed the application – A majority of the Ontario Court of Appeal allowed the Crown’s appeal – It found, inter alia, that defence counsel was responsible for about 1.5 months of delay because he was not available for the first offered date for a rescheduled preliminary inquiry – The Supreme Court of Canada held that this placed too great a responsibility on defence counsel in the circumstances of this case – Scheduling required reasonable availability and reasonable cooperation – It did not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability – Here, there was no suggestion that defence counsel was unreasonable in rejecting the earlier date – Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry, efforts which were ignored, suggested that he wished to proceed expeditiously – To hold that the “delay clock” stopped as soon as a single available date was offered to the defence and not accepted, in circumstances where the Crown was responsible for the case having to be rescheduled, was not reasonable – See paragraphs 21 to 23.
Civil Rights – Topic 3270
Trials – Due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – Evidence of prejudice and causes of delay – An accused applied to stay proceedings on the basis that his right to trial within a reasonable time (Charter, s. 11(b)) had been infringed – The delay between the time that he was charged and the scheduled trial was 30 months – The trial judge allowed the application – A majority of the Ontario Court of Appeal allowed the Crown’s appeal – It found, inter alia, that any prejudice to the accused’s interest in a fair trial was too speculative to be considered – The Supreme Court of Canada stated that prejudice in this context was concerned with the three interests of the accused that s. 11(b) protected: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay could prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence – It did not follow from a conclusion that there was an unquantifiable risk of prejudice to the accused’s ability to make full answer and defence that the overall delay in this case was constitutionally reasonable – Proof of actual prejudice to the right to make full answer and defence was not invariably required to establish a s. 11(b) violation – This was only one of three varieties of prejudice, all of which had to be considered together with the length of the delay and the explanations for why it occurred – See paragraphs 30 and 38.
Civil Rights – Topic 3270
Trials – Due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – Evidence of prejudice and causes of delay – An accused applied to stay proceedings on the basis that his right to trial within a reasonable time (Charter, s. 11(b)) had been infringed – The delay between the time that he was charged and the scheduled trial was 30 months – The trial judge allowed the application – A majority of the Ontario Court of Appeal allowed the Crown’s appeal – It found, inter alia, that any prejudice to the accused’s interest in a fair trial was too speculative to be considered – The Supreme Court of Canada stated that the question of prejudice could not be considered separately from the length of the delay – Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward – Further, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice – The trial judge referred specifically to the fact that the charges had been hanging over the accused’s head for a long time and that he was subject to “fairly strict” bail conditions – It was reasonable to infer as the trial judge did that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice – It was true that his bail conditions were relaxed as the delay lengthened, but the trial judge did not err by taking this consideration into account as one aspect relevant to his overall assessment of whether the long delay was unreasonable – The nature of the risk to the accused’s ability to make full answer and defence was set by the dissenting judge in the Court of Appeal – He noted that the case was likely to turn on credibility and, in particular, on cross-examination of the complainant and her boyfriend – The extra passage of time made it more likely that the ability of the accused to cross-examine effectively had been diminished – See paragraphs 29 to 36.
Civil Rights – Topic 3270
Trials – Due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – Evidence of prejudice and causes of delay – [See
Civil Rights – Topic 3265
].
Cases Noticed:
R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 2].
R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 11].
Counsel:
Mark C. Halfyard, for the appellant;
Alexander Alvaro, for the respondent.
Solicitors of Record:
Pinkofskys, Toronto, Ontario, for the appellant;
Attorney General of Ontario, Toronto, Ontario, for the respondent.
This appeal was heard on February 12, 2009, before McLachlin, C.J.C., Binnie, Deschamps, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. Cromwell, J., delivered the following decision of the court in both official languages on June 4, 2009.
