Delay: the kinds of prejudice

Prejudice arising from delay was the Supreme Court of Canada’s reason for restoring the stay of proceedings that had been entered by the trial judge in R v Godin [2009] SCC 26 (4 June 2009).

There is no discussion in this case of alternative remedies (contrast Williams v R [2009] NZSC 41, noted here 15 May 2009), but what is of interest is the analysis of prejudice:

“[30] Prejudice in this context is concerned with the three interests of the accused that s. 11(b)
[Canadian Charter of Rights and Freedoms] protects: 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 can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin [1992 CanLII 89 (S.C.C.), [1992] 1 S.C.R. 771], at pp. 801-3.”

As to prejudice to the right to make a full defence, this may not be easy to “quantify”, but in any event this sort of prejudice is not essential:

“[38] Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant’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 is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred.”

In this case the delay to trial exceeded the guidelines by over a year, and this was not the fault of the defence. The delay was attributable to the Crown and was unexplained. Defence counsel had sought early dates but his efforts were ignored. The charges were originally going to be prosecuted summarily, but they seem to have been reasonably serious: sexual assault, unlawful confinement, and threatening to kill.

Some delay in disclosure of scientific evidence had occurred:

“[11] … There is no suggestion that Crown counsel delayed disclosure or was otherwise at fault for this delay. Nevertheless, the resulting delay is attributable to the Crown. It is responsible for bringing an accused person to trial and for the provision of facilities and staff to see that accused persons are tried in a reasonable time: R. v. Askov, 1990 CanLII 45 (S.C.C.), [1990] 2 S.C.R. 1199, at p. 1225. The Crown bears the burden of explaining unusual delays caused by the forensic investigators. It offers no explanation in this case.”

This late disclosure led to additional delay as it was agreed that the prosecution should re-elect to proceed by indictment to give the defence time to investigate resulting inconsistencies with the complainant’s statement. It was the delay in scheduling the preliminary hearing that defence counsel had endeavoured, without response, to avoid.

The availability of a stay of proceedings may vary between legal systems. It is easy to imagine a court saying, in a case like this, that the seriousness of the charges made the public interest in proceeding outweigh the breach of the accused’s right to trial within a reasonable time, and his interests could be met by a reduction in sentence in the event of conviction, or by payment of compensation in the event of acquittal, especially because (although this point may not have applied in Godin) a fair trial was still possible.

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