Top court must stay course on trial delays
Alternative ideas would likely violate people’s charter rights
Criminals — OK fine, alleged criminals — are walking free thanks to a Supreme Court of Canada ruling last summer that placed hard limits on how long trials are allowed to take.
In hundreds of cases, charges have been stayed — meaning the trial is suspended, but the accused isn’t found either guilty or not guilty — and thousands more are at risk of a stay. It’s caused a great deal of brow-furrowing, as even serious cases have been stayed, including a man accused of first-degree murder here in Ottawa. Doubtless, it is damaging public confidence in a justice system that many Canadians already — wrongly, by the way — believe is unduly sympathetic toward criminals and nasty towards victims. A stay is “a draconic remedy,” says Peter Hogg, one of Canada’s top constitutional law scholars.
So why are charges actually being stayed? Surely there are other, less drastic remedies out there?
The answer lies in a 1987 Supreme Court of Canada ruling called R v. Rahey. It said, quite simply, that the solution to an unreasonable delay in court cannot contribute to further delays. If there has been a charter violation, wrote then-justice Antonio Lamer, “to allow a trial to proceed ... would be to participate in a further violation of the charter.” Hence, charges being stayed. Obvious, right? “It’s based on very simple-minded reasoning that once you’ve reached an unreasonable delay, you can’t possibly continue the case,” Hogg told a Canadian Senate committee recently. “I think that’s a silly way to look at it.”
As Christopher Sherrin, a law professor at Western University, notes, this isn’t how the courts handle other charter violations. An unconstitutional strip search, he says in a paper exploring alternate remedies to trial delays, may be experienced as “equivalent to a sexual assault.” Yet courts don’t stay charges in response. “Instead, they engage in balancing and sometimes grant no remedy or a lesser remedy, like a sentence reduction,” Sherrin writes.
What Sherrin sees as a mistake is presuming that the trial delay itself is the problem; rather, he argues, the problem is the effect the delay has on the accused, such as threatening rights to liberty, security and a fair trial. “Further delay won’t necessarily make things worse ... S. 11(b) of the charter does not protect one’s desire not to wait,” Sherrin says.
The point is there are other potential solutions, from granting costs to the accused at the completion of trial; to reducing sentences; to relaxing bail conditions in the instance of long imprisonment during trial. “You can address the problem that delay has caused, but you don’t have to terminate the proceedings,” Sherrin says.
Of course, this is all hypothetical. The top court has ruled, and the law is clear that the fix to a trial delay is a stay of proceedings, so unless the Supreme Court feels like revisiting that principle (and it has opted not to in the past), alternatives will remain speculative.
There’s a flip side to all this as well, because when the only remedy is a stay, judges are loath to actually use it.
“In a great number of instances either the accused has got nothing because the judge has been loath to grant a stay of proceedings, despite some fairly significant delay, or the accused has received a stay in circumstances where one wonders ... whether he really deserved it,” Sherrin says.
The simplicity of the Rahey decision is part of its beauty. If an unreasonable trial delay is a charter violation, then the only solution must be to stop the delay. That means a stay must be granted; any alternate remedy perpetuates the delay and sees the court system participate in further charter violations. It’s circuitous reasoning, but the Supreme Court got it right three decades ago.
Yet we have a crisis of people accused of serious crimes walking free. I’d say the court got it right with Rahey, but, today’s Supreme Court is not the one that ruled in 1987. We may, one day, hear differently from a future court.