R. v. Gallagher, [1993] 2 S.C.R. 861

Robert Gallagher Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Gallagher

File No.: 22966.

1993: March 1; 1993: August 12.

Present: Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Constitutional law ‑‑ Right to trial within reasonable delay ‑‑ Stay of proceedings granted but overturned on appeal ‑‑ Whether pre-trial delay unreasonable -- Whether pre-trial delay, combined with appellate delay, amounting to violation of Charter right to trial within reasonable time ‑‑ Canadian Charter of Rights and Freedoms, ss. 7, 11(b).

Appellant was charged with sexual assault on a child and, after various motions and a preliminary inquiry, was committed for trial some 21 months later. He successfully applied for a stay of the proceedings against him arguing that his right to a trial within a reasonable time, as guaranteed by s. 11(b) of the Charter, had been infringed. The Court of Appeal, almost 14 months later, set aside the stay and ordered that he stand trial. At issue here are whether the pre‑trial delay amounted to an unreasonable delay, and even if it did not, whether the appellate delay, when considered with the pre‑trial delay, amounted to a Charter violation.

Held: The appeal should be dismissed.

Per Sopinka, Cory and Iacobucci JJ.: The delay between the charge and the stay was not unreasonable. With respect to appellate delay, for the reasons given in R. v. Potvin, s. 11(b) of the Charter has no application but a remedy under s. 7 may be sought. The delay was not unreasonable and did not occasion real prejudice. No unfairness was established so as to attract the provisions of s. 7.

Per Lamer C.J. and McLachlin and Major JJ.: The delay here, while falling to be considered under s. 11(b) of the Charter for the reasons set out in R. v. Potvin, was not unreasonable and did not occasion real prejudice. The institutional delay caused by the large number of appeals in the aftermath of R. v. Askov was abnormal and unavoidable. The appellant demonstrated no prejudice and remained free throughout the proceedings.

Per La Forest J.: There was no unreasonable delay in this case. Discussion of the interplay between ss. 7 and 11(b) of the Charter was set out in R. v. Potvin.

Cases Cited

By Sopinka J.

Applied: R. v. Potvin, [1993] 2 S.C.R. 000; referred to: R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199; R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771.

By McLachlin J.

Applied: R. v. Potvin, [1993] 2 S.C.R. 000; referred to: R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199.

By La Forest J.

Referred to: R. v. Potvin, [1993] 2 S.C.R. 000.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 11(b).

APPEAL from a judgment of the Ontario Court of Appeal allowing an appeal from a judgment of Taliano J. and setting aside a stay of proceedings. Appeal dismissed.

James C. Fleming, for the appellant.

David Butt and Eric Siebenmorgen, for the respondent.

//McLachlin J.//

The reasons of Lamer C.J. and McLachlin and Major JJ. were delivered by

McLachlin J. -- For the reasons set out in R. v. Potvin, [1993] 2 S.C.R. 000, released concurrently, I am of the view that all the delay in this case falls to be considered under s. 11(b) of the Canadian Charter on Rights and Freedoms. Applying the principles applicable under s. 11(b), I am of the view that the delay was not unreasonable and did not occasion real prejudice.

On April 25, 1989, the appellant was charged with sexual assault on a child. After various motions and a preliminary inquiry, he was committed for trial. The date for trial was set for January 28, 1991. The appellant felt that his right under the Charter to a trial within a reasonable time had been infringed and applied for a stay of the proceedings against him. He was successful at first instance. The Crown appealed and the Court of Appeal on March 25, 1992 set aside the stay and ordered that he stand trial. The appellant now appeals to this court. He says that the Court of Appeal erred in setting aside the stay on account of pre‑trial delay. And he adds a new complaint. He says that even if the Court of Appeal were right on the issue of pre‑trial delay, the delay caused by the appeal, considered with the previous delay, has most certainly violated his Charter rights.

In this case, the delay between the charge and the entry of the stay was 21 months. This interval is sufficient to call for an examination of the delay. The delay cannot be blamed on the prosecuting authorities. Some of it flowed from the necessary requirements of the case. Much of it flowed from the appellant's motions to cross‑examine the complainant on other incidents and to convert the trial into a preliminary inquiry. The appellant led no evidence that he was prejudiced by the delay. Some prejudice can be presumed from the fact that he suffered the stigma of being under prosecution during this time. On the other hand, the appellant was released the day he was charged on a promise to appear. In sum, the delay was not unreasonable given that the delay was not inordinate and the prejudice not great.

This leaves for consideration the delay after the stay. The delay between the stay and the Court of Appeal ruling is 16 months. There is no evidence that any of the delay was unreasonable. The notice of appeal was filed within the time limit. The Crown then reviewed the case to make a decision as to whether to proceed with the appeal. The large number of appeals arising in the aftermath of R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, caused abnormal institutional delay. This was unfortunate, but largely unavoidable. It took several months to compile the necessary transcripts, a period which cannot in all circumstances be said to be much overlong. On the other side of the balance, there was no prejudice to the appellant beyond the prejudice one must assume from the stress related to ongoing proceedings and the possibility of their being overturned. The appellant remained free throughout the proceedings, his liberty unimpaired. These factors, considered together, fall short of establishing that the delay was unreasonable.

Given the reasons for the delay before and after the stay and the degree of prejudice suffered, it cannot be said that the delay in this case was unreasonable.

Disposition of the Appeal

I would dismiss this appeal and confirm the order that the trial proceed.

//La Forest//

The following are the reasons delivered by

La Forest J. -- Like my colleagues, I do not think there was unreasonable delay in this case and I would accordingly dismiss the appeal and confirm the order that the trial proceed. I have set forth my views on the interplay between ss. 7 and 11(b) of the Canadian Charter of Rights and Freedoms in my reasons in R. v. Potvin, [1993] 2 S.C.R. 000.

//Sopinka J.//

The judgment of Sopinka, Cory and Iacobucci JJ. was delivered by

Sopinka J. -- I have read the reasons for judgment of my colleague Justice McLachlin herein. I agree with McLachlin J. that, having regard to the relevant factors to be considered as expressed in R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, and R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, the delay between the charge and the stay was not unreasonable.

With respect to appellate delay, for the reasons I stated in R. v. Potvin, [1993] 2 S.C.R. 000, s. 11(b) of the Canadian Charter of Rights and Freedoms has no application. A remedy may, however, be sought under s. 7 of the Charter. In this regard, I agree with the conclusion of McLachlin J. that the delay was not unreasonable and did not occasion real prejudice. In the circumstances, no unfairness has been established so as to attract the provisions of s. 7.

Appeal dismissed.

Solicitors for the appellant: Rosen, Fleming, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.