R. v. Frazer, [1993] 2 S.C.R. 866

David Brian Frazer Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Frazer

File No.: 22936.

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 ‑‑ Charter of Rights ‑‑ Trial within a reasonable time ‑‑ Twenty‑two month pre‑trial delay, including seven month delay to accommodate defence and Crown ‑‑ Fifteen month appellate delay arising in part from work load resulting from Askov ‑‑ Whether right to be tried within reasonable time includes appeal period ‑‑ Whether right to be tried within reasonable time infringed ‑‑ Canadian Charter of Rights and Freedoms, ss. 7, 11(b).

Appellant was charged on December 21, 1988, with impaired driving causing death and operating a motor vehicle with a blood alcohol content over .08. The 22‑month pre‑trial delay resulted in part because of a four-month delay to accommodate the defence and a three‑month delay to accommodate the Crown. Older and in‑custody cases were given priority in rescheduling the trial. Appellant successfully applied for a stay of proceedings when the trial began on November 8, 1990. The Court of Appeal heard the appeal after a 15‑month delay ‑‑ seven months for the Crown to prepare the materials and six months to schedule a hearing ‑‑ and set aside the stay and ordered that the appellant stand trial. The issue of appellate delay was fully argued but the Court of Appeal declined to decide this issue on the basis that Charter issues should be dealt with by the judge of the first instance.

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 pre‑trial delay was not unreasonable given the accommodations made for the defence and Crown. The appellant was not in custody or subject to restrictive bail conditions during the pre‑trial period and led no evidence of prejudice.

The appellate delay was not unreasonable either. The delay was caused in part by office inefficiency and in part by the high volume of Crown appeals following R. v. Askov. The effect of Askov on the Crown and the courts must be considered in determining the reasonableness of delay. Legal and social conditions can increase the volume of work to such an extent that longer delays are inevitable. The legal system cannot be expected to adjust immediately to meet sudden or short term increases in the volume of cases. There was no evidence led of the nature of the prejudice experienced by the appellant.

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 45 (SCC), [1990] 2 S.C.R. 1199; R. v. Morin, 1992 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. Gallagher, [1993] 2 S.C.R. 000; R. v. Askov, 1990 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 (1992), 1992 7599 (ON CA), 8 O.R. (3d) 57, 55 O.A.C. 194, allowing an appeal from a stay of proceedings imposed by Kerr J. and ordering a new trial. Appeal dismissed.

Max Epstein, 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, I am of the view that all the delay in this case falls to be considered under s. 11(b) of the Canadian Charter of Rights and Freedoms. Applying s. 11(b), it is my view that this appeal must fail.

On December 21, 1988, the appellant was charged with impaired driving causing death and operating a motor vehicle with a blood alcohol content over .08. After a preliminary inquiry, the trial date was set for October 2, 1989. The trial had to be adjourned twice. The first adjournment occurred because defence counsel was not available. The second adjournment occurred because one of the crown's witnesses was unavailable. There was difficulty in rescheduling and hearing the trial because there were older and in-custody cases which had priority. An attempt was made to hear the case in July 1990 but the judge who had thought this possible was subsequently unavailable. The trial date was set at November 8, 1990. On this date, the appellant was successful on an application to stay proceedings on the ground that his rights under the Charter to a trial within a reasonable time had been infringed. The Crown appealed and the Court of Appeal on March 11, 1992 set aside the stay and ordered that the appellant stand trial. The appellant at the Court of Appeal raised the issue that the appeal should be dismissed due to the appellate delay attributable to the Crown. The Court of Appeal heard full argument on this issue, but declined to decide this issue on the basis that Charter issues should be dealt with by the judge of the first instance -- (1992), 1992 7599 (ON CA), 8 O.R. (3d) 57.

The delay between the charge and the commencement of the trial was 22 months. The length of the delay warrants examination. Four months of the delay was caused by the defence counsel who was unavailable for the first scheduled trial date. The Crown can be considered responsible for three months of the delay because they requested an adjournment because a witness -- the officer in charge of the investigation -- was unavailable. The appellant led no evidence of prejudice. The appellant was not in custody or subject to restrictive bail conditions during the pre-trial period.

This leaves the question of post-trial appellate delay. Assuming the evidence of the delay was properly before this Court (the accused made no motion to adduce fresh evidence), I do not find that the delay in this case violated the accused's rights under s. 11(b) of the Charter. The total appellate delay was 15 months from the filing of the Notice of Appeal to the disposition of the appeal. The Crown took seven months to prepare the materials for the appeal. There was a delay of six months before the Crown secured a date before the Court of Appeal. This appears to be the caused by three factors: the file was shuffled back and forth between senior and junior counsel; the volume of work was abnormally high because the Crown was appealing many decisions which were the result of this Court's decision in R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199; and the Court of Appeal would not allow Crown counsel to schedule the appeal until her factum was completed. As I noted in R. v. Gallagher, [1993] 2 S.C.R. 000, the effect of the Askov decision on the Crown and the courts must be considered in determining the reasonableness of delay. Legal and social conditions can increase the volume of work to such an extent that longer delays are inevitable. The legal system cannot be expected to adjust immediately to meet sudden or short term increases in the volume of cases. There was no evidence led of the nature of the prejudice experienced by the appellant. While in this case, the Crown could perhaps have been more diligent and efficient, I do not think that the delay in all the circumstances was unreasonable.

Given the reasons for the delay and the degree of prejudice suffered, I conclude that the appellant's s. 11(b) rights were not violated by the delay in this case.

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

//La Forest J.//

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 45 (SCC), [1990] 2 S.C.R. 1199, and R. v. Morin, 1992 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.

Solicitor for the appellant: Max Epstein, Toronto.

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