R. v. Gallant, [1998] 3 S.C.R. 80

Her Majesty The Queen Appellant

v.

Cory Anthony Gallant Respondent

Indexed as: R. v. Gallant

File No.: 25922.

1998: May 21; 1998: October 29.

Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Major and Bastarache JJ.

on appeal from the prince edward island supreme court, appeal division

Constitutional law ‑‑ Charter of Rights ‑‑ Trial within reasonable time ‑‑ Sentencing delay ‑‑ Judicial illness ‑‑ Sentencing delay primarily due to prolonged illness of trial judge ‑‑ Whether right to be tried within reasonable time applies to sentencing ‑‑ Principles applicable for proper characterization of delay related to judicial illness ‑‑ Point at which delay in sentencing related to trial judge’s illness violates right to be tried within reasonable time ‑‑ Canadian Charter of Rights and Freedoms, s. 11(b).

The accused was charged with breaking and entering on April 19, 1995. Five days later he entered a guilty plea. The case was adjourned to June 12 for sentencing. Because of the trial judge’s illness, the June 12 sentencing hearing was adjourned to July 10. On that day, the hearing was suspended indefinitely again because of the trial judge’s illness. The trial judge resigned on April 15, 1996, and on May 21 the Crown requested that a new judge be assigned to sentence the accused. A new judge was assigned the next day. On June 27, before the new judge, defence counsel requested an adjournment until July 11. At that time the matter was adjourned to September 24 for a defence motion to have the charges stayed. On that date, the new judge granted the motion, holding that the 17‑month sentencing delay violated s. 11(b) of the Canadian Charter of Rights and Freedoms. The Court of Appeal dismissed the Crown’s appeal. This appeal raises the same issues dealt with in R. v. MacDougall, rendered concurrently.

Held: The appeal should be allowed and the case remitted to the trial court for sentencing.

For the reasons expressed in MacDougall, the s. 11(b) right to be tried within a reasonable time extends to sentencing. However, the accused’s s. 11(b) right was not violated in this case as the 17‑month sentencing delay was not unreasonable. The courts below mischaracterized the delay relating to the trial judge’s illness by wrongly considering it attributable to the Crown. The Crown only bears responsibility for the one‑month period between the trial judge’s resignation and the request for the assignment of a new judge. The accused is responsible for the three‑week delay resulting from his request for an adjournment. The remaining months of the delay are attributable to the inherent time requirements of the case, including the 10 months of delay relating to the trial judge’s illness. Delay related to judicial illness which takes places in the period before it is reasonable for the Crown to apply to have the judge removed is inherent delay and is not counted against the Crown. The delay of one month attributable to the Crown is not egregious and the evidence does not suggest that it prejudiced the accused.

Cases Cited

Referred to: R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, rev’g (1997), 1997 4563 (PE SCAD), 147 Nfld. & P.E.I.R. 193; R. v. Bosley (1992), 1992 2838 (ON CA), 59 O.A.C. 161.

Statutes and Regulations Cited

[Canadian Charter of Rights