R. v. Kalanj, [1989] 1 S.C.R. 1594

Danie Steve Kalanj Appellant

v.

Her Majesty The Queen Respondent

and between

Gerald Joseph Pion Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. kalanj

File Nos: 19792, 19805.

1988: March 28; 1989: June 22.

Present: Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.

on appeal from the court of appeal for british columbia

Constitutional law -- Charter of Rights -- Trial within reasonable time -- Pre-charge delay -- Whether pre‑charge delay relevant to determining if an accused's right to be tried within reasonable time has been infringed ‑‑ Meaning of the phrase a "person charged with an offence" in s. 11(b) of the Canadian Charter of Rights and Freedoms.

Criminal law -- Appeal to the Supreme Court of Canada -- Appeal where acquittal set aside -- Court of Appeal vacating trial judge's order quashing an indictment preferred against the accused -- Whether accused may appeal to the Supreme Court of Canada pursuant to s. 618(2)(a) of the Criminal Code.

Following a police investigation, the appellants were arrested without warrants on May 5, 1982. They were released on the same day and no charges were laid against them until January 14, 1983 when K was charged with theft and P with conspiracy to commit theft. The Crown explained that the time required to prepare its case caused the delay in swearing the information. After the preliminary inquiry, a trial date was fixed for February 4, 1985. At trial, the appellants moved before plea to quash the indictment, on the ground that the delay in bringing the case to trial constituted an infringement of their right to be tried within a reasonable time guaranteed in s. 11(b) of the Canadian Charter of Rights and Freedoms. The trial judge found that both appellants and their families suffered serious trauma and public embarrassment because of these arrests. He held that while the time from the swearing of the information to the date of trial did not amount to an unreasonable delay, the delay of some eight months between arrest and release and the swearing of the information was unreasonable and he quashed the indictment. On appeal by the Crown, the Court of Appeal held that the trial judge erred in considering the pre‑information delay in deciding whether the appellants' s. 11(b) Charter right had been infringed. The Court vacated the order quashing the indictment and a trial on the merits was directed. The appellants now purport to appeal to this Court as of right pursuant to s. 618(2)(a) of the Criminal Code.

Held (Lamer and Wilson JJ. dissenting): The appeals should be dismissed.

Per McIntyre, La Forest and L'Heureux‑Dubé JJ.: Section 618(2)(a) of the Code provides an appeal for persons acquitted of an indictable offence whose acquittal has been set aside in the Court of Appeal. The appellants in this case were not acquitted and, on the face of the Criminal Code, there would appear to be no right of appeal. However, if the trial judge had had the benefit of the later decisions of this Court in Mills and Jewitt on this question, it is reasonable to assume that instead of quashing the indictment he would have ordered a judicial stay, which in accordance with Jewitt would have been tantamount to an acquittal, and an appeal would thus have been open under s. 618(2)(a) upon the reversal of the stay in the Court of Appeal. Therefore, in the circumstances of this case, jurisdiction exists for the hearing of these appeals.

Section 11 affords its protection after an accused is charged with an offence. A person is "charged with an offence" within the meaning of that section when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn. It follows that the reckoning of time in considering whether a person has been accorded a trial within a reasonable time under s. 11(b) will commence with the information or indictment, where no information has been laid, and will continue until the completion of the trial. Pre‑information delay will not be a factor. This construction is supported by the words of the Charter and, as well, upon a consideration of its organization and structure. The specific language of s. 11 should not be ignored and the meaning of the word "charged" should not be twisted in an attempt to extend the operation of the section into the pre‑charge period. Prior to the charge, the rights of the accused are protected by general law and guaranteed by ss. 7, 8, 9 and 10 of the Charter. Here, appellants' right to a trial within a reasonable time has not been infringed. The time from the swearing of the information to the date of trial did not amount to an unreasonable delay.

Per Lamer J. (dissenting): The time frame to be considered in computing trial within a reasonable time generally runs only from the moment a person is charged. A person is charged under s. 11(b) as of, (a) the service of a summons, the execution of a warrant pursuant to the laying of an information under s. 455.3 of the Criminal Code, or as of the moment a person is informed by the authorities of their existence; or (b) the issuance of an appearance notice under s. 451 of the Code or release from custody under ss. 452 or 453 of the Code; or (c) as of the arrest, in the case of all other arrested persons not covered by (a) or (b). This definition of a "person charged" makes no distinction between an arrest with or without a warrant. In both cases, the person arrested enjoys the protection of s. 11(b). This definition is also the most consistent with the rationale of s. 11(b) as the charge from which the "reasonable time" inquiry begins will correspond to the start of the impairment of the accused's interests in the liberty and security of the person. The concept of the security of the person, in the context of s. 11(b), is not restricted to physical integrity but encompasses protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation".

Applying the definition to these cases, the delay started when the appellants were first arrested and released and the period between the arrest and the laying of the charges should have been computed in determining whether or not they have been tried within reasonable time. There is no doubt that, from the moment of the arrest, the appellants suffered a breach of their liberty as well as a restraint of their security. It is also obvious that that eight‑month period between the arrest and the laying of the charges was in violation of s. 11(b). The appellants did not consent to the delay and tried to expedite the laying of the charges. The Crown gave no reasonable explanation to justify the delay. On the contrary, its explanation was an admission to the fact that they were not ready to charge and therefore should not have arrested. A stay of proceedings should be ordered.

Per Wilson J. (dissenting): Since s. 11(b) of the Charter is designed to protect the liberty and security interests of the accused, the relevant starting point for the running of time under the section should not be upon the ex parte laying of the information before the justice of the peace but rather when the impact of the criminal process is felt by the accused through the service of process upon him in the form of a summons or notice of appearance or an arrest with or without a warrant. However, the prejudice to the security interests of an accused arising purely from the fact of the imposition of the process upon him should not be considered in assessing the reasonableness of the delay. The prejudice relevant under s. 11(b) is the prejudice arising from the delay and not the prejudice arising from the imposition of the process. Here, the appellants were prejudiced by the delay between the arrest and the laying of the information and this prejudice can be attributed to the delay and not simply to the imposition of the process. Although an arrest and the subsequent laying of the charges would have affected their broad security interests at any time, the unjustified delay in the bringing of specific charges substantially aggravated that prejudice beyond what is acceptable or inherent in the criminal process itself.

Cases Cited

By McIntyre J.

Referred to: Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863; Carter v. The Queen, 1986 CanLII 18 (SCC), [1986] 1 S.C.R. 981; R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588; R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128; R. v. Boron (1983), 1983 CanLII 1606 (ON SC), 8 C.C.C. (3d) 25; R. v. Young (1984), 1984 CanLII 2145 (ON CA), 13 C.C.C. (3d) 1; R. v. Belton (1982), 1982 CanLII 2929 (MB CA), 3 C.C.C. (3d) 427; R. v. Heaslip (1983), 1983 CanLII 3519 (ON CA), 9 C.C.C. (3d) 480; Re Kott and The Queen (1983), 1983 CanLII 2795 (QC CA), 7 C.C.C. (3d) 317; R. v. Devji (1985), 1985 CanLII 638 (BC CA), 19 C.C.C. (3d) 310; Re Gray and The Queen (1982), 1982 CanLII 2339 (SK QB), 70 C.C.C. (2d) 62; R. v. Belcourt (1982), 1982 CanLII 385 (BC SC), 69 C.C.C. (2d) 286; R. v. Davis (1988), 1988 CanLII 9816 (NS SC), 86 N.S.R. (2d) 284; R. v. Mackintosh (1988), 1988 CanLII 2799 (BC CA), 26 B.C.L.R. (2d) 1; Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536; R. v. Chabot, 1980 CanLII 54 (SCC), [1980] 2 S.C.R. 985; R. v. Antoine (1983), 1983 CanLII 1743 (ON CA), 5 C.C.C. (3d) 97; Re Garton and Whelan (1984), 1984 CanLII 3494 (ON SC), 14 C.C.C. (3d) 449; R. v. Robins (1844), 1 Cox C.C. 114.

By Lamer J. (dissenting)

Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863; Carter v. The Queen, 1986 CanLII 18 (SCC), [1986] 1 S.C.R. 981; Eur. Court H. R., Deweer case, judgment of 27 February 1980, Series A No. 35; Eur. Court H. R., Eckle case, judgment of 15 July 1982, Series A No. 51; Eur. Court H. R., case of Foti and others, judgment of 10 December 1982, Series A No. 56.

By Wilson J. (dissenting)

Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863; R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 8, 9, 10, 11, 12, 13, 14.

Criminal Code, R.S.C. 1970, c. C‑34, ss. 448 "accused" [rep. & subs. 2nd Supp., c. 2, s. 5], 451 [idem], 452 [idem], 453 [idem], 455 [idem], 455.1 [ad. idem], 455.3 [ad. idem; am. 1972, c. 13, s. 35(2)], 577(3), 602, 605(1)(a), (c) [ad. 1985, c. 19, s. 137], 618(2)(a) [rep. & subs. 1974‑75‑76, c. 105, s. 18(2)], 723, 724, 737(1).

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, (1950), Art. 6(1).

Authors Cited

Mewett, Alan W. An Introduction to the Criminal Process in Canada. Toronto: Carswells, 1988.

APPEALS from a judgment of the British Columbia Court of Appeal (1986), 1986 CanLII 1152 (BC CA), 26 C.C.C. (3d) 136, allowing the Crown's appeal from a judgment of Selbie Co. Ct. J., allowing appellants' application to quash the indictment. Appeals dismissed, Lamer and Wilson JJ. dissenting.

E. David Crossin, for the appellant Kalanj.

Donald J. Sorochan, for the appellant Pion.

Colin Sweeney and Alexander Budlovsky, for the respondent.

//McIntyre J.//

The judgment of McIntyre, La Forest and L'Heureux-Dubé JJ. was delivered by

Judgment of McIntyre, La Forest and L'Heureux-Dubé JJ.

MCINTYRE J. -- The general issue on these appeals is whether the rights of the appellants under s. 11(b) of the Canadian Charter of Rights and Freedoms "to be tried within a reasonable time" have been infringed. More specifically, the question is whether pre-charge delays should be included in the calculation of whether there was an unreasonable delay in bringing the appellants to trial.

Background and Facts

The appellants, Kalanj and Pion, were arrested without warrants on May 5, 1982. The police suspected Kalanj of stealing meat from his meatpacker employer and delivering it to Pion, also in the meat packing business, for sale by Pion and a division of the profits. The arrest followed a detailed investigation by the police which commenced in early March of 1982. On March 17, 1982, the police procured a judicial authorization to intercept the private communications of Kalanj and other unknown persons, and proceeded to intercept some sixty-five communications between March 18, 1982 and May 5, 1982. On the basis of information thus acquired, the police obtained and executed search warrants and made the arrests. Following their arrests, the appellants were finger printed and placed in police cells but were released later the same day. They were told not to leave the city and were informed, as well, that charges would be laid and that a summons would issue. The arrests were made at the appellants' places of business; they received wide publicity and there can be no doubt that the appellants suffered grave embarrassment. The trial judge found that prior to being charged, but after arrest and release, both appellants and their families suffered serious trauma and public embarrassment because of these arrests.

On January 14, 1983, some eight months and nineteen days after the arrests and releases, an information was sworn alleging that the appellants had committed the offences of theft and conspiracy to commit theft. This delay in swearing the information was said by the Crown to have been made necessary because of the time required to prepare its case. It was necessary to review a large number of intercepted communications, to identify those which were relevant to the various issues, and to have them transcribed. Much police time, it was said, was consumed in interviewing witnesses whose names became known to the police because of the interceptions, and the matter was not ready for the swearing of the information until January 14, 1983.

Procedural History

The trial did not commence until February of 1985, some two years after the information was sworn. The appellants' first court appearance was on February 18, 1983, the purpose of which was to fix a date for the preliminary hearing. On that date the proceedings were adjourned until March 9, 1983 at the request of counsel for the appellants, who wished to obtain particulars from the Crown. The particulars were supplied on March 30, 1983 and the case was set over until April 13, 1983 to fix a date for the preliminary hearing. The preliminary hearing was set to run from September 6 to September 20, 1983. It was adjourned twice: once at the request of counsel for Kalanj, who was engaged in another trial, and once because of problems caused by a strike of government employees. On April 17, 1984 the preliminary hearing commenced and the appellants were committed for trial upon its conclusion in late April. On May 31, 1984 a trial date was fixed for February 4, 1985.

At trial, the appellants moved before plea to quash the indictment, on the ground that the delay in bringing the case to trial constituted an infringement of their right to be tried within a reasonable time guaranteed in s. 11(b) of the Charter. The trial judge found that while the time from the swearing of the information to the date of trial did not amount to an unreasonable delay, the delay of some eight months between arrest and release and the swearing of the information was unreasonable. He said:

I have not up to now referred to the period of time between the formal laying of the charges in January of 1983 and the trial in February of 1985. It is my view without reviewing what happened during that period that standing alone and open to many criticisms this period nevertheless in itself does not disclose a degree of unreasonableness so as to justify taking an extreme step such as the quashing of the indictment. My view is otherwise if the period prior to the formal laying of the charge back to the arrests is considered.

He quashed the indictment.

On appeal by the Crown, the Court of Appeal (Craig, Macfarlane and McLachlin JJ.A.) unanimously decided that the trial judge erred in considering the pre-information delay in deciding whether the appellants' s. 11(b) Charter right had been infringed: (1986), 1986 CanLII 1152 (BC CA), 26 C.C.C. (3d) 136. The order quashing the indictment was vacated and a trial on the merits was directed.

Jurisdiction

The appellants now purport to appeal to this Court as of right pursuant to s. 618(2)(a) of the Criminal Code, which provides an appeal for persons acquitted of an indictable offence whose acquittal has been set aside in the Court of Appeal. The appellants were not, however, acquitted: the indictment upon which they were to stand trial was quashed. Section 605(1)(c) of the Code permitted the Crown to appeal to the Court of Appeal, but s. 618(2)(a) does not on its terms permit these appeals. Section 602 of the Criminal Code provides that no appeals save those provided for in the Code shall be taken in indictable offences. On the face of the Criminal Code sections, there would then appear to be no right of appeal.

The judgment at trial was released before the judgment of this Court in Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863. In that case, Lamer J., though dissenting on other grounds, considered that where a s. 11(b) Charter right had been infringed the appropriate remedy would be a stay of proceedings. In R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, this Court held that a stay of proceedings granted at trial was tantamount to an acquittal and therefore subject to appeal by the Crown pursuant to s. 605(1)(a) of the Criminal Code. If the trial judge had had the benefit of the later decisions on this question, it is reasonable to assume that instead of quashing the indictment he would have ordered a judicial stay, which in accordance with Jewitt would have been tantamount to an acquittal, and an appeal would thus have been open under s. 618(2)(a) of the Code upon the reversal of the stay in the Court of Appeal. I am therefore of the view that in the circumstances of this case jurisdiction exists for the hearing of these appeals.

I now turn to the main issue on the appeals. Section 11(b) of the Charter provides that "Any person charged with an offence has the right ... to be tried within a reasonable time". The section, it will be observed, refers only to those persons who are "charged" with an offence. The question, then, which must be answered is: When is a person "charged with an offence" within the meaning of s. 11(b)?

This issue was considered by both the trial judge and the Court of Appeal. The trial judge seems to have concluded that "the appellants were only charged for the purposes of the Charter when some justice signed the information in January, 1983". He concluded, however, that the pre-charge delay could be considered in deciding if an accused had been tried within a reasonable time under s. 11(b). The Court of Appeal, on the other hand, held that s. 11(b) is specifically and exclusively addressed to the delay between the actual charge, which is the laying of the information, and the date of the trial, and that s. 11(b) may not be invoked in response to a delay in laying a charge. It was argued before this Court that the Court of Appeal erred in its interpretation of s. 11(b). Counsel for the appellants submitted that the appellants were charged within the meaning of s. 11(b) at the time of their arrest and release and that, accordingly, the entire period from May 5, 1982 until the commencement of the trial on February 4, 1985 should be considered in deciding if the trial had taken place within a reasonable time.

The word "charged" or "charge" is not one of fixed or unvarying meaning at law. It may be and is used in a variety of ways to describe a variety of events. A person is clearly charged with an offence when a charge is read out to him in court and he is called upon to plead. Many authorities support this view if authority is necessary: see R. v. Chabot, 1980 CanLII 54 (SCC), [1980] 2 S.C.R. 985, and the cases cited therein. A person could be considered in a general or popular sense to be charged with an offence when informed by one in authority that "you will be summoned to court" or upon an arrest when in answer to a demand to know what all this is about an officer replies: "You are arrested for murder". There are many other occasions when in the popular mind a person may be said to be charged for, according to Professor Mewett in An Introduction to the Criminal Process in Canada (1988), the word "charge" has no precise meaning at law but merely means that steps are being taken which in the normal course will lead to a criminal prosecution. However, despite what may be termed the imprecision of the word "charge" or the phrase "a person charged", the courts are faced with the task of developing a meaning of the word as used in s. 11 of the Charter.

In addressing this task, the courts have generally avoided the definite but restricted definition to be found in Chabot, supra, and have generally concluded that a person is charged with an offence within the meaning of s. 11 of the Charter when an information has been sworn which constitutes an initiating step in court proceedings. In R. v. Boron (1983), 1983 CanLII 1606 (ON SC), 8 C.C.C. (3d) 25 (Ont. H.C.), Ewaschuk J. considered what he saw as three possible interpretations of the word "charged", and he concluded, at p. 31, that:

In conclusion, I adopt the more prevalent view that the word "charged" in s. 11 of the Charter refers to the laying of an information, or the preferment of a direct indictment where no information has been laid. In consequence, the time-frame to be considered in computing trial within a reasonable time only runs from the laying of a charge. This general rule may have certain exceptions which I deal with later. Accordingly, the trial judge erred in holding that the Charter guarantees the right of a person to have proceedings promptly instituted against a person charged with an offence.

He had earlier said, at p. 28, referring to the old practice when a peace officer making an arrest would say: "I charge you in the name of the Queen with the murder of John Smith":

However, that interpretation of the word "charged" is somewhat antiquated in light of s. 10(a) of the Charter which requires a peace officer on arrest or detention to inform the person arrested or detained of the reason (or reasons) therefor. By contrast, the Crown prosecutor is assumed to be the governmental official who decides the appropriate charge....

He also rejected the idea that one is charged only when one appears in court to answer the charge, in other words, the Chabot approach. On this basis, Ewaschuk J. concluded that the time period, which under s. 11(b) of the Charter must be reasonable, is the period commencing with the swearing of the information or the preferring of a direct indictment when an information has not been sworn and concluding with the trial. In this approach, pre-information delay would not be a factor, but it will be observed that he allowed for an exception which in some cases would permit consideration of pre-charge time.

The proposition that an accused person is charged only when the information is sworn has been accepted in a number of appellate court decisions. In R. v. Young (1984), 1984 CanLII 2145 (ON CA), 13 C.C.C. (3d) 1, for example, the Ontario Court of Appeal referred to the date of the information as being "the time that the respondent was charged". Dubin J.A., speaking for the court, said that in that case there was no delay between the time of the charge, by which he was referring to the time of the swearing of the information, and the time of the trial, and therefore, s. 11(b) had no application. See also: R. v. Belton (1982), 1982 CanLII 2929 (MB CA), 3 C.C.C. (3d) 427 (Man.); R. v. Heaslip (1983), 1983 CanLII 3519 (ON CA), 9 C.C.C. (3d) 480 (Ont.); Re Kott and The Queen (1983), 1983 CanLII 2795 (QC CA), 7 C.C.C. (3d) 317 (Que.); and R. v. Devji (1985), 1985 CanLII 638 (BC CA), 19 C.C.C. (3d) 310 (B.C.) This approach has also been adopted at the trial level: Re Gray and The Queen (1982), 1982 CanLII 2339 (SK QB), 70 C.C.C. (2d) 62 (Sask.); R. v. Belcourt (1982), 1982 CanLII 385 (BC SC), 69 C.C.C. (2d) 286 (B.C.); and R. v. Davis (1988), 1988 CanLII 9816 (NS SC), 86 N.S.R. (2d) 284. I would note here that the Criminal Code in s. 455, for indictable offences, and in ss. 723 and 724, for summary conviction offences, speaks of the laying of an information and requires, as well, that an information be sworn. For the purposes of this judgment, the terms "laying an information" and "swearing an information", having the same significance, are used interchangeably.

As has been said, the argument which the appellants have raised on this appeal is that they were charged within the meaning of s. 11(b) on the date of the arrest, which was some eight months prior to the laying of the information. The appellants submit that this Court's decisions in Mills v. The Queen, supra, and Carter v. The Queen, 1986 CanLII 18 (SCC), [1986] 1 S.C.R. 981, support this proposition. Briefly, the argument is that Lamer J.'s dissent in Mills (concurred in by Dickson C.J.) which extended the meaning of "charged" was adopted by the majority in Carter. In Mills, Lamer J. expressed the view that the meaning of "charged" should be one which is consistent with the aim and purpose of the section. In his view, the reasonable time under s. 11(b) must be computed from the start of the impairment of the accused's interest in the liberty and security of the person. He therefore considered that a person would be charged upon:

(a) the service of a summons, the execution of a warrant pursuant to the laying of an information under s. 455.3 of the Criminal Code, or as of the moment a person is informed by the authorities of their existence; or

(b) the issuance of an appearance notice under s. 451 of the Code or release from custody under ss. 452 or 453 of the Code; or

(c) as of the arrest, in the case of all other arrested persons not covered by (a) or (b).

(Mills, supra, at p. 946.)

This view did not attract the support or agreement of a majority of the Court. On the same day that the judgment in Mills was released the Court released the judgment in Carter v. The Queen. The argument of the appellants is that in Carter Lamer J. applied the definition of "charge" which he set out in Mills. He said, at p. 985:

The accused in this case was "charged" as of the service of a summons pursuant to the laying of the information, which means that he was charged on January 28, 1983.

As I have indicated in Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, which has been handed down this same day, the time frame to be considered in computing trial within a reasonable time generally runs only from the moment a person is charged. In passing, I might add that I say "generally" because there might be exceptional circumstances under which the time might run prior to the actual charge on which the accused will be tried. As an example, if the Crown withdraws the charge to substitute a different one but for the same transaction, the computation of time might well commence as of the first charge. This is not in issue here and reference to this situation is only illustrative of my resort to the word "generally". Consequently, the period running from April 3, 1980 to January 28, 1983, should not have been taken into consideration when assessing the reasonableness of the delay under s. 11(b).

And later he said, at p. 986:

The only period of time which may properly be considered in assessing whether or not a violation of s. 11(b) has occurred is that period running from January 28, 1983 to May 6, 1983, the date on which the inquiry into the reasonableness of the delay began. Only 3 1/2 months had elapsed and the applicant has not suggested that this time span was in violation of s. 11(b). It is obvious that the applicant was relying on the pre-charge delay; in any event, most of the post-charge delay was with the accused's consent, indeed a good part of it was at his own request.

The appellants submit that since Lamer J.'s reasons in Carter were concurred in by seven judges of this Court, the majority of the Court adopted the extended definition of "charged" advanced by Lamer J. in Mills.

A similar argument was considered by the British Columbia Court of Appeal in R. v. Mackintosh (1988), 1988 CanLII 2799 (BC CA), 26 B.C.L.R. (2d) 1. Macfarlane J.A., for the majority, considered the minority views of Lamer J. in Mills and the majority judgments in Carter, and stated at p. 11:

It is plain that a person is "charged" within the meaning of s. 11, when a formal charge (information or indictment) is laid, and the accused is served with process. That was so in Carter. Lamer J. said (at p. 985) of Carter:

The accused in this case was "charged" as of the service of a summons pursuant to the laying of the information, which means that he was charged on January 28, 1983.

On this basis, he concluded, at p. 11, that:

The majority judgment in Carter is more confined in its treatment of the definition of the word "charged" than it is in the minority judgment of Mr. Justice Lamer in Mills. I am unable to construe the language of the majority judgment in Carter as incorporating all of the minority views of Mr. Justice Lamer in Mills.

However, after determining that a person is "charged" as of the laying of an information, per this Court's decision in Carter, Macfarlane J.A. then asked: At what other time is a person "charged"? On the basis of the language used by the majority in Carter, he concluded that a person may be charged, at "the moment an actual charge is laid, or in exceptional circumstances on some earlier date". In other words, in Macfarlane J.A.'s view, the word "charged" should be given a flexible definition, one which would vary depending on the circumstances of the particular case. Under this approach, "charged" in some situations may mean the date the information is sworn but in others it would refer to an earlier date.

With all deference to contrary opinions, I am of the view that it cannot be said that this Court in Carter adopted the minority view in Mills, on the question of the extension of the meaning of the word "charged" developed by Lamer J. In Carter, Lamer J., with the agreement of seven judges who heard the case, clearly stated that an accused was charged upon the swearing of the information, and Carter supports the view that the pre-charge delay is not a factor for consideration under s. 11(b). To this extent, then, I am in agreement with the above quoted comments of Macfarlane J.A. in Mackintosh but, with respect, I do not agree with the majority in that case that "charged" has a flexible meaning varying with the circumstances of the case. I would therefore hold that a person is "charged with an offence" within the meaning of s. 11 of the Charter when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn. It would follow, then, that the reckoning of time in considering whether a person has been accorded a trial within a reasonable time under s. 11(b) will commence with the information or indictment, where no information has been laid, and will continue until the completion of the trial: see R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 633, where La Forest J. said:

The question of delay must be open to assessment at all stages of a criminal proceeding, from the laying of the charge to the rendering of judgment at trial. [Emphasis added.]

and see, as well, Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536, at p. 548, where the same judge said:

It gives a Charter remedy for delay when a prosecution has been initiated. [Emphasis added.]

Pre-information delay will not be a factor.

This construction is supported by the words of the Charter and, as well, upon a consideration of its organization and structure. Section 11 is one of eight sections grouped under the heading of "Legal Rights". Section 7 guarantees the general "right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". This section applies at all stages of the investigatory and judicial process. Sections 8 and 9 afford guarantees of rights of particular importance in the investigatory or pre-charge stage, as does s. 10 which deals with rights upon arrest. Section 11 deals with a later stage of the proceedings, that is, when judicial proceedings are instituted by a charge. Sections 12 and 13 deal with matters which follow the trial, and s. 14 again refers to matters during trial.

In dealing with s. 11, it must first be recognized that it is limited in its terms to a special group of persons, those "charged with an offence". It deals primarily with matters relating to the trial. It is to be noted that s. 11 is distinct from s. 10 and serves a different purpose: the two sections must not be equated. The framers of the Charter made a clear distinction between the rights guaranteed to a person arrested and those of a person upon charge. Sections 8 and 9, as well, guarantee essential rights ordinarily of significance in the investigatory period, separate and distinct from those covered in s. 11. It has been said that the purpose of s. 11 should be considered in deciding upon the extent of its application. This purpose, it has been said, is to afford protection for the liberty and security interests of persons accused of crime. While it is true that s. 11 operates for this purpose, I emphasize that it does so within its own sphere. It is not, nor was it intended to be, the sole guarantor and protector of such rights. As stated above, s. 7 affords broad protection for liberty and security, while the other sections, particularly those dealing with legal rights, apply to protect those rights in certain stated circumstances. Section 11 affords its protection after an accused is charged with an offence. The specific language of s. 11 should not be ignored and the meaning of the word "charged" should not be twisted in an attempt to extend the operation of the section into the pre-charge period. The purpose of s. 11(b) is clear. It is concerned with the period between the laying of the charge and the conclusion of the trial and it provides that a person charged with an offence will be promptly dealt with.

The length of the pre-information or investigatory period is wholly unpredictable. No reasonable assessment of what is, or is not, a reasonable time can be readily made. Circumstances will differ from case to case and much information gathered in an investigation must, by its very nature, be confidential. A court will rarely, if ever, be able to fix in any realistic manner a time limit for the investigation of a given offence. It is notable that the law -- save for some limited statutory exceptions -- has never recognized a time limitation for the institution of criminal proceedings. Where, however, the investigation reveals evidence which would justify the swearing of an information, then for the first time the assessment of a reasonable period for the conclusion of the matter by trial becomes possible. It is for that reason that s. 11 limits its operation to the post-information period. Prior to the charge, the rights of the accused are protected by general law and guaranteed by ss. 7, 8, 9 and 10 of the Charter.

I acknowledge that in taking this position it may be said that I am departing from the earlier judgments of this Court which have said that there will be exceptional cases where pre-charge delays will be relevant under s. 11(b). In my view, however, the departure is more apparent than real. The exception referred to by Lamer J. in Carter -- where two indictments are preferred because of successful appeals after a first trial -- has been dealt with in R. v. Antoine (1983), 1983 CanLII 1743 (ON CA), 5 C.C.C. (3d) 97 (Ont. C.A.), and Re Garton and Whelan (1984), 1984 CanLII 3494 (ON SC), 14 C.C.C. (3d) 449 (Ont. H.C.) These cases support the proposition that pre-charge delay is not relevant under s. 11(b), by holding that the time commences to run from the date the original information was sworn.

It has been considered that special circumstances could arise which, in the interests of justice, would require some consideration of pre-charge delay because of prejudice which could result from its occurrence. In my view, however, the exceptional cases should be dealt with by reliance on the general rules of law and, where necessary, the other sections of the Charter. This approach would take account of and meet the concerns caused by the possibility of pre-charge delays. Delays which occur at the pre-charge stage are not immune from the law outside the scope of s. 11(b). The Criminal Code itself in ss. 577(3) and 737(1) protects the right to make full answer and defence should it be prejudiced by pre-charge delay. Section 455.1 provides for a prompt swearing of an information where an appearance notice has been issued or an accused has been released from custody under ss. 452 or 453. As well, the doctrine of abuse of process may be called in aid and as early as 1844 the common law demonstrated that it was capable of dealing with pre-information delays. Baron Alderson in R. v. Robins (1844), 1 Cox C.C. 114, in a case where nearly two years had elapsed from the alleged commission of an offence before a complaint was made to the justices, said:

I ought not to allow this case to go further. It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the charge be not preferred for a year or more, how can he clear himself? No man's life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial.

His Lordship then directed the jury to acquit the prisoner.

In addition, given the broad wording of s. 7 and the other Charter provisions referred to above, it is not, in my view, necessary to distort the words of s. 11(b) in order to guard against a pre-charge delay. In my view, the concerns which have moved the Court to recognize the possibility of special circumstances which would justify a consideration of pre-charge delay under s. 11(b) will thus be met.

Conclusion

In the case at bar, both the courts below considered that the post-charge delays were not such that they could be said to deprive the appellants of trial within a reasonable time. I am in agreement with this finding. The trial judge, however, considered the pre-charge delay of some eight months and concluded that it was unreasonable and upon that conclusion found that s. 11(b) had been infringed. In this, I, in agreement with the Court of Appeal, consider that he was in error. I would accordingly dismiss the appeals.

The following are the reasons delivered by

Reasons of Lamer J. (Dissenting)

LAMER J. (dissenting) -- My colleague Justice McIntyre has set out most accurately in his reasons the facts and the proceedings, and has analyzed the judgments below. I would only add to the facts the following observation made by trial judge Selbie:

One or two more observations on the period in question. I am satisfied that the accused through their counsel did everything they could to determine their position and have the charges formally laid so as to meet them. I am not satisfied that the authorities did all they could to expedite the inevitable, that is, the formal laying of the charges.

The real issue in these cases requires that we define when a person has become "a person charged". As I have indicated in Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, and in Carter v. The Queen, 1986 CanLII 18 (SCC), [1986] 1 S.C.R. 981, the time frame to be considered in computing trial within a reasonable time generally runs only from the moment a person is charged. This is the definition of the word "charged" I gave as most appropriate under s. 11(b) in Mills, at p. 946:

A person is charged as of,

(a) the service of a summons, the execution of a warrant pursuant to the laying of an information under s. 455.3 of the Criminal Code, or as of the moment a person is informed by the authorities of their existence; or

(b) the issuance of an appearance notice under s. 451 of the Code or release from custody under ss. 452 or 453 of the Code; or

(c) as of the arrest, in the case of all other arrested persons not covered by (a) or (b).

I still think that this definition is the most consistent with the rationale of s. 11(b) as the charge from which the "reasonable time" inquiry begins will correspond to the start of the impairment of the accused's interests in the liberty and security of the person. There will also, in addition, be instances where a person might be considered as "charged" prior to the actual charge for which he is being prosecuted or prior to his arrest without a warrant or a notice to appear. But that is not in issue here and should be left to another day.

As the issue was not live in Mills, I did not expand upon my reasons for setting out the above definition of "person charged", beyond merely stating its coherence with the rationale of s. 11(b). I think it in order to do so now.

Meaning of "Charged"

Generally speaking, a charge begins with an information. Unless the accused is present at the time the information is laid, which very seldom occurs, the justice or judge issues a warrant or a summons to get the accused before him to answer the charge. My brother McIntyre suggests that as of that moment the clock as regards s. 11(b) starts ticking. I respectfully think that this is too early. Indeed, until the process is executed or until the accused has knowledge of its existence, the "impairment of the accused's interest" has not really begun. Furthermore, one must acknowledge that in certain cases a period of time will be needed because of the difficulties often involved in tracing the accused. This is why I chose, as a starting point, service of the summons, execution of the warrant, but sometimes earlier, that is if the accused is informed of the existence of the charge by the authorities. I still think that this is the better moment to start the computation of time. That is what I stated in my para. (a) of the definition. That paragraph applies to the process when there is a warrant or a summons emanating from a judge. In passing I should note that had the police in these cases obtained a warrant, there would of necessity have been a charge, and the clock would have started ticking as of the arrest, or even earlier, if one adopts my brother McIntyre's view, that is as of the laying of the charge.

But when does the clock start when the police have issued a notice of appearance or have arrested without a warrant, as they did in these cases? I put the following question right now. Is there any reason why the clock should not start as of the arrest, that is the time at which it would have started had the police obtained a warrant (or as of the laying of the information as would have it McIntyre J.)? It would be indeed incongruous that, if you are arrested pursuant to a warrant, you enjoy your s. 11(b) rights as of that moment, but not if arrested without a warrant!

Arrests with or without warrants are all governed by Chapter XIV of the Criminal Code. I will be referring to the law as it existed in 1982. There have since been changes to Chapter XIV, but none are of any relevance to these cases. That Chapter is entitled "Compelling Appearance of Accused Before a Justice and Interim Release". The first section, s. 448, defines an accused as including

(a) a person to whom a peace officer has issued an appearance notice under section 451, and

(b) a person arrested for a criminal offence;

I will not go through the extensive and sometimes intricate scheme governing the compelling of accused before a justice. Essentially, our system is as follows. When possible, a warrant or a summons is obtained from a justice or a judge. To so obtain, the person seeking such a process must swear an information, that is lay a charge. Form 7 of the Code, entitled "Warrant for arrest", sets out the form of a warrant in which it is said:

This warrant is issued for the arrest of A.B., of (occupation) , hereinafter called the accused.

Whereas the accused has been charged that (set out briefly the offence in respect of which the accused is charged);

This is therefore, to command you, in Her Majesty's name, forthwith to arrest the said accused and to bring him before (state court, judge or justice) , to be dealt with according to law.

Dated this day of A.D. , at .

Judge, Clerk of the Court, Provincial Court Judge or Justice

Form 6, setting out how to summon a person, uses essentially the same language:

Whereas you have this day been charged before me that (set out briefly the offence in respect of which the accused is charged);

This is therefore to command you, in Her Majesty's name:

1. to attend court on , the day of A.D. at o'clock in the noon, at or before any justice for the said (territorial division) who is there, and to attend thereafter as required by the court, in order to be dealt with according to law; and

2. to appear on , the day of A.D. , at o'clock in the noon, at , for the purposes of the Identification of Criminals Act. (Ignore, if not filled in.)

You are warned that failure without lawful excuse to attend court in accordance with this summons is an offence under subsection 133(4) of the Criminal Code.

Subsection 133(4) of the Criminal Code states as follows:

"(4) Every one who is served with a summons and who fails, without lawful excuse, the proof of which lies upon him, to attend court in accordance therewith, is guilty of

(a) an indictable offence and is liable to imprisonment for two years, or

(b) an offence punishable on summary conviction."

Section 455.6 of the Criminal Code states as follows:

"455.6 Where an accused who is required by a summons to appear at a time and place stated therein for the purposes of the Identification of Criminals Act, does not appear at that time and place, a justice may issue a warrant for the arrest of the accused for the offence with which he is charged."

Dated this day of A.D. , at .

A Justice of the Peace in and for or Judge

Since the police do not always have the time to go and obtain a warrant or a summons, Chapter XIV sets out a scheme under which the process is, but only for a very short period of time, reversed. I will not go into the various exceptions to the general process which in any event have no bearing on what we are discussing here. Essentially, the police officer, before going to the judge, will issue a notice to a citizen to the effect that he is going to go to a judge and lay a charge that he identifies in his notice, and the citizen is told by the peace officer in that notice that he will be committing an offense against the Criminal Code if he does not attend court on the date set out in that notice. If instead of giving a notice the police officer chooses, in the appropriate case, to arrest without a warrant, the matter is not different. He can only arrest without a warrant if he has, either caught the accused in the act of committing an indictable offense, or, if he knows he committed the indictable offense, or has reasonable and probable grounds to believe that he has committed it or is about to commit an indictable offense or if he has reasonable and probable grounds to believe there is a warrant for that person's arrest.

When he proceeds without a warrant, the law requires him to take the accused to the justice or judge forthwith or at the latest within 24 hours or to release him in the interim and give him a notice to appear. Section 455.1 of the Code states that:

455.1 Where

(a) an appearance notice has been issued to an accused under section 451, or

(b) an accused has been released from custody under section 452 or 453,

an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in court. [Emphasis added.]

Also, an accused, who has been arrested without a warrant and who has not been released in the interim and given a notice, like the one referred to above, will be charged when the officers in compliance with the law bring him before the justice. I should note right now that had the police in these cases complied with the law, we would not be discussing s. 11(b) as the accused would have been charged within hours. It is therefore obvious to me that as of the moment of arrest a person is charged for the purposes of s. 11(b) even though the police have not laid a charge to obtain a warrant. By arresting without a warrant, they have, as a matter of law, undertaken to charge him within hours. This is why I see no reason in making a distinction between an arrest with a warrant and one without, nor do the accused perceive any, or those seeing accused being handcuffed and taken away. If the law is respected, the difference of time as regards the charge is one of hours. On the other hand, if the law is frustrated, as in these cases, it seems to me, with respect, preposterous that the unlawful conduct of the police would have the effect of depriving the citizen of the protection of s. 11(b).

I do not take issue with my brother McIntyre's concern for the courts not limiting the time for investigating an offense. With respect I do not think that this is in any way suggested by my definition of a "person charged'. If the police officers are acting according to our laws, they do not arrest, with or without a warrant, until the conclusion of a concludent investigation, if indeed an investigation be necessary. Arrests, summons, notices, are not investigatory instruments, but vehicles to court. If an officer is not going to court because he does not have enough to go to court, his arrest is premature, indeed unlawful.

I, therefore, for these reasons, reiterate my definition set out in Mills.

I find some comfort in the fact that it is in harmony with the position adopted in Europe. Indeed, this approach is consistent with the interpretation developed by the European Court of Human Rights concerning Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (1950). That section reads as follows:

(1) In the determination of . . . any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

In the Deweer case, the European Court stated that, in criminal matters, the reasonable time may start to run from a date prior to the seisin of the trial court, of the tribunal competent for the determination of the criminal charge, for example, the moment when preliminary investigations are opened, the moment of arrest, or the moment when the person is officially notified that he will be prosecuted (Eur. Court H. R., judgment of 27 February 1980, Series A No. 35, at p. 22). The Court even went further in the Eckle case (Eur. Court H. R., judgment of 15 July 1982, Series A No. 51, at p. 33):

In criminal matters, the "reasonable time" referred to in Article 6 {SS} 1 begins to run as soon as a person is "charged"; this may occur on a date prior to the case coming before the trial court ..., such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened ... "Charge" for the purposes of Article 6 {SS} 1, may be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence", a definition that also corresponds to the test whether "the situation of the (suspect) has been substantially affected" . . .

Finally, the Court stated in the case of Foti and others (Eur. Court H. R., judgment of 10 December 1982, Series A No. 56, at p. 18) that:

Whilst "charge", for the purposes of Article 6 {SS} 1, may in general be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence", it may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect . . .

Application to the Present Case

Coming back to these cases, it seems that both appellants were released under the condition that they would not leave the area. However, neither of them was formally charged until January 14, 1983, although on the day of the arrest, Kalanj was told that he was being arrested for theft and Pion was told that he was being arrested for conspiracy to commit theft. In the months following the arrest, both accused suffered financial, familial, social and health problems. It is obvious that in such a small community, they were "the talk of the town", and that their conduct was as of the moment they were arrested of common knowledge to the people of the area. I note that they tried to expedite the laying of charges but could not persuade the prosecution to do so. They suffered without a doubt a breach of their liberty as well as a restraint of their security. Concerning the concept of security of the person, I stated in Mills, supra, at pp. 919-20:

Additionally, under s. 11(b), the security of the person is to be safeguarded as jealously as the liberty of the individual. In this context, the concept of security of the person is not restricted to physical integrity; rather, it encompasses protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation" . . . These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction. These forms of prejudice cannot be disregarded nor minimized when assessing the reasonableness of delay.

Applying the above definitions and comments to these instant cases, I am of the view that the delay started when the appellants were first arrested and released under the condition they would not leave the area. This period is in fact the only period on which the lower courts diverged as they both stated that all the other delays were reasonable. This is also the only time span that my brother McIntyre considered as may have been violating the s. 11(b) right. With my discussion in Mills in mind, it is obvious that the eight months elapsed between the arrest and the "formal charge" were in violation of s. 11(b). Not only it cannot be said that the appellants consented to the delay occurring between the arrest and the moment they were taken to court as both accused tried to expedite the laying of charges although they could not persuade the prosecution to do so, but the Crown has not given any reasonable explanation to justify the said delay before taking the appellants to court. In fact, the Crown tells us that the investigation was not over, which, far from being a justification of what they did, is, in my respectful view, an admission to the fact that they were not ready to charge and therefore should not have arrested. But, as I said, in different terms, the Charter is there precisely to protect the citizen from this kind of situation and we would be remiss if, by a definition, we were to put the victim of such conduct beyond the shield of the Charter while protecting those who are in no need of its protection because the police proceeded lawfully.

As this disposes of these cases, I do not need to analyze whether the subsequent period has been satisfactorily explained or not.

With the greatest of respect, I am of the view that the Court of Appeal for British Columbia erred in law by considering the eight-month period elapsed between the arrest and the laying of the charges as pre-charge delay. The said period should have been computed in determining whether or not the accused have been tried within reasonable time. I would consequently allow both appeals and order a stay of proceedings against Pion and Kalanj.

//Wilson J.//

The following are the reasons delivered by

Reasons of Wilson J. (Dissenting)

WILSON J. (dissenting) -- I have had the benefit of the reasons of my colleagues, Justices McIntyre and Lamer, in these appeals and find myself in agreement with the position of Lamer J. on the main issue as to the time from which the appellants' right to a trial within a reasonable time starts to run under s. 11(b) of the Canadian Charter of Rights and Freedoms.

I believe that if s. 11(b) is designed to protect the liberty and security interests of the accused, and I think it is, then the relevant starting point for the running of time under the section should not be upon the ex parte laying of the information before the justice of the peace but rather when the impact of the criminal process is felt by the accused through the service of process upon him in the form of a summons or notice of appearance or an arrest with or without a warrant. This flexible approach to s. 11(b) seems to me most adequately to give effect to the obvious purpose of the provision.

I do, however, have a significant point of disagreement with Lamer J. which I feel obliged to address very briefly. I do not agree with my colleague that prejudice to the security interests of the appellants arising purely from the fact of the imposition of the process upon them, i.e., that they became, in Lamer J.'s colourful phrase, "the talk of the town", should be considered in assessing the reasonableness of the delay. As I indicated in Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, and again in R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, it is my view that the prejudice we are concerned with is that arising from the delay and not from the imposition of the process. The latter prejudice arises whether there is delay or not. I do, however, think that the appellants were prejudiced by the delay between the arrest and the laying of the information and that this prejudice can be attributed to the delay and not simply to the imposition of the process. After their highly publicized arrests the appellants were forced to live under a generalized cloud of suspicion and stigma for over eight months. Although an arrest and the subsequent laying of charges would have affected their broad security interests at any time, the unjustified delay in the bringing of specific charges, in my view, substantially aggravated that prejudice beyond what is acceptable or inherent in the criminal process itself.

I accordingly concur with Lamer J. in his proposed disposition of the appeals.

Appeals dismissed, LAMER and WILSON JJ. dissenting.

Solicitors for the appellant Kalanj: Doust & Smith, Vancouver.

Solicitors for the appellant Pion: Swinton & Co., Vancouver.

Solicitor for the respondent: The Ministry of the Attorney General of British Columbia, New Westminster.

*Estey and Le Dain JJ. took no part in the judgment.