R. v. Smith (M.H.) (1989), 102 N.R. 205 (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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Michael Harold Smith v. Her Majesty The Queen
(No. 21058)
Indexed As: R. v. Smith (M.H.)
Supreme Court of Canada
Dickson, C.J.C., Lamer, Wilson, La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.
December 7, 1989.
Summary:
The accused milk truck driver was charged with theft from a customer which allegedly occurred between July and September 1984. In June 1985, he was acquitted. After further police investigation a second charge was laid on January 22, 1987, charging him with theft from his employer. The matter could not be scheduled for preliminary inquiry until May 9, 1988. The accused applied for a stay of proceedings, alleging a denial of his right to be tried within a reasonable time in s. 11(b) of the Charter.
The Manitoba Court of Queen’s Bench, in a decision reported 53 Man.R.(2d) 92, allowed his application and entered a stay on the ground of unreasonable delay. The court also held that there was no abuse of process in the laying of the second charge. The Crown appealed.
The Manitoba Court of Appeal, in a decision reported 54 Man.R.(2d) 24; 42 C.C.C.(3d) 193, allowed the appeal and set aside the stay. The accused appealed.
The Supreme Court of Canada allowed the appeal and restored the order of the Queen’s Bench.
Civil Rights – Topic 3262
Trials – Due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – Waiver of right – The Supreme Court of Canada held that inaction or acquiescence by the accused, short of waiver, cannot result in a forfeiture of an accused’s s. 11(b) rights – Admittedly an accused’s conduct must be taken into account in assessing the prosecution’s explanation for delay – There is no obligation, however, on the part of the accused to press the case on, which relieves the Crown from its obligations under s. 11(b) – See paragraph 37.
Civil Rights – Topic 3262
Trials – Due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – Waiver of right – The Supreme Court of Canada held that 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 waiver, agreeing to a future date for a trial or a preliminary inquiry would generally be characterized as more than silence – The court held that here, the accused did not waive his rights by agreeing to a date for the preliminary, after being informed no judge was available on the desired date – See paragraphs 38 to 41.
Civil Rights – Topic 3264
Trials – Due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – Denial of right – Considerations – The Supreme Court of Canada set out four factors to be weighed or balanced in determining whether s. 11(b) of the Charter (right to be tried within a reasonable time) has been violated – See paragraph 24.
Civil Rights – Topic 3264
Trials – Due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – Denial of right – Prejudice – The Supreme Court of Canada stated that where the delay is substantially longer than can be justified on any acceptable basis, it would be difficult to conclude that the accused’s s. 11(b) rights had not been violated because the accused had suffered no prejudice – In such case the inference of prejudice is so strong that it is virtually irrebuttable – See paragraph 42.
Civil Rights – Topic 3265
Trials – Due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – “Within a reasonable time” – What constitutes – A milk truck driver was charged with theft from a customer, alleged to have occurred between July and September 1984 – In June 1985, he was acquitted – After further investigation, another charge was laid on February 22, 1987, charging him with theft from his employer – The preliminary hearing could not be scheduled until May 9, 1988 – The delay, although for no improper motive, was attributed to institutional delay (unavailability of a judge) and to accommodate the investigating officer to enable him to attend the inquiry to assist the Crown – The Supreme Court of Canada affirmed that s. 11 (b) of the Charter was violated – The court held that to the extent that a finding of prejudice was necessary, there was actual prejudice to the accused – See paragraphs 31 to 34, 42 to 44.
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 held that the accused had the ultimate or legal burden of proving that his right to be tried within a reasonable time was violated – However, a secondary or evidentiary burden of putting forth evidence or argument may shift depending on the circumstances of each case – For example, a long period of delay occasioned by a request of the Crown for an adjournment would ordinarily call for an explanation from the Crown as to the necessity for the adjournment – The court should be mindful that it is seldom necessary or desirable to decide this question on the basis of burden of proof – See paragraph 28.
Civil Rights – Topic 3268
Trials – Due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – Time to allege denial – The Supreme Court of Canada held that where practicable, trial courts should deal with allegations of s. 11(b) violations – It is clearly preferable that a court be able to rely upon viva voce evidence so as to more fully explore and consider the facts underlying an allegation of unreasonable delay – See paragraph 20.
Civil Rights – Topic 8363
Charter – Denial of rights – Jurisdiction – [See Civil Rights – Topic 3268 above].
Civil Rights – Topic 8363
Charter – Denial of rights – Jurisdiction – Several months before the scheduled commencement of a preliminary inquiry the accused applied by originating notice of motion for relief based on an alleged breach of s. 11(b) of the Charter – The Supreme Court of Canada affirmed that since the date for the preliminary inquiry was fixed and could not (at the behest of the accused) be moved up, the motions judge properly considered the accused’s application as if the time had already elapsed – See paragraph 16.
Civil Rights – Topic 8363
Charter – Denial of rights – Jurisdiction – Approximately four months before the scheduled commencement of a preliminary inquiry, the accused applied to the motions judge for relief under s. 24 of the Charter, based on an alleged breach of s. 11(b) – The Supreme Court of Canada affirmed that given that the preliminary inquiry judge lacked jurisdiction to consider an alleged Charter breach, the motions judge correctly assumed jurisdiction – See paragraphs 17 to 21.
Cases Noticed:
R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 161, refd to. [para. 9].
R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81, refd to. [para. 9].
R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 22].
R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191, refd to. [para. 22].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 11(b) [paras. 1, 8-10, 16-17, 20-23, 25, 34, 37-40, 42, 44]; sect. 24(1) [para. 17].
Counsel:
John Menzies and Alan J. Semchuk, for the appellant;
E.P. Phillip Schachter, for the respondent.
Solicitors of Record:
Johnston & Company, Dauphin, Manitoba, for the appellant;
The Attorney General of Manitoba, Winnipeg, Manitoba, for the respondent.
This appeal was heard before Dickson, C.J.C., Lamer, Wilson, La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ., of the Supreme Court of Canada on May 24, 1989. The decision of the Supreme Court was delivered by Sopinka, J., on December 7, 1989, in both official languages.
