RIGHT TO BE TRIED WITHIN A REASONABLE TIME
R. v. Morin,  1 SCR 771 CanLII
On January 9, 1988 the accused was charged with impaired driving and with operating a motor vehicle while having a blood alcohol level which exceeded the legal limit. She was released from custody that same day on a promise to appear. When she appeared in Provincial Court on February 23, her counsel explicitly requested "the earliest possible trial date". The trial was set for March 28, 1989. In response to a query from counsel as to whether this was "the earliest date", the presiding justice answered a simple "yes". On her scheduled trial date the accused brought a motion to stay the proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, arguing that the 14½-month delay in bringing her to trial infringed her right to be tried within a reasonable time under s. 11(b) of the Charter. The motion was dismissed and the accused was convicted on the "over 80" charge. A stay was entered with respect to the impaired driving charge for unrelated reasons. On appeal, the summary conviction appeal court also stayed the "over 80" charge on the basis that the accused had not been tried within a reasonable time. The Court of Appeal allowed the Crown's appeal and restored the conviction.
Held (Lamer C.J. dissenting): The appeal should be dismissed.
Per La Forest, Sopinka, Stevenson and Iacobucci JJ.: The primary purpose of s. 11(b) is the protection of the individual rights of accused persons: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial. The right to security of the person is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.
A secondary interest of society as a whole has also been recognized by this Court. This interest is most obvious when it parallels that of the accused: society as a whole has an interest in seeing that citizens who are accused of crimes are treated humanely and fairly. There is, as well, a societal interest that is by its very nature adverse to the interests of the accused: there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.
The general approach to a determination of whether the s. 11(b) right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which inevitably lead to delay. The factors to be considered are:
(1) the length of the delay;
(2) waiver of time periods;
(3) the reasons for the delay, including
(a) inherent time requirements of the case,
(b) actions of the accused,
(c) actions of the Crown,
(d) limits on institutional resources and
(e) other reasons for delay; and
(4) prejudice to the accused.
]Leaving aside the question of delay on appeal, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial.
An inquiry into unreasonable delay is triggered by an application under s. 24(1) of the Charter. While the applicant has the legal burden of establishing a Charter violation, an evidentiary burden of putting forth evidence or argument on particular factors will shift depending on the circumstances of each case. A case will only be decided by reference to the burden of proof if the court cannot come to a determinate conclusion on the facts presented to it. An inquiry into unreasonable delay should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness. A shorter period of delay will raise the issue if the applicant shows prejudice, as for example if the accused was in custody. If by agreement or conduct the accused has waived any part of this time period, the length of the period of delay will be reduced accordingly.
All offences have certain inherent time requirements which inevitably lead to delay. As well as the complexity of a case, all cases are subject to certain intake requirements and some cases must pass through a preliminary inquiry before reaching trial. The court will also need to consider whether the actions of either the accused or the Crown have led to delay. These latter two factors do not assign "blame" but simply provide a convenient mechanism by which the conduct of the parties may be examined.
In considering the explanation for delay, account must be taken of the limits of institutional resources. Institutional delay runs from the time the parties are ready for trial and continues until the system can accommodate the proceedings. The weight to be given to this factor must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay. There is a point in time after which the Court will no longer tolerate delay which results from resource limitations. An administrative guideline may be used to assess the acceptable period of time to be allotted to this factor. This guideline is neither a limitation period nor a fixed ceiling on delay. It must not be applied in mechanical fashion but must yield to other factors when required.
It is appropriate for this Court to suggest a guideline of between 8 and 10 months for institutional delay in Provincial Courts. A guideline with respect to institutional delay after committal for trial in the range of 6 to 8 months was suggested in R. v. Askov, 1990 CanLII 45 (S.C.C.),  2 S.C.R. 1199, and is still apposite. The application of the guideline will be influenced by the presence or absence of prejudice. The greater the prejudice, the shorter the acceptable period of institutional delay. These guidelines are intended for the guidance of trial courts generally, and will no doubt require adjustment by trial courts to take into account local conditions. They will also need to be adjusted from time to time to reflect changing circumstances. The court of appeal in each province will play a supervisory role in seeking to achieve uniformity subject to the necessity of taking into account the special conditions of different regions in the province. The application of these guidelines is subject to review by this Court to ensure that the right to trial within a reasonable time is being respected.
Prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not proved, the basis for the enforcement of the right is seriously undermined. The purpose of the right is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that must be considered.
In this case the delay of 14½ months is sufficient to raise the issue of reasonableness. Since the parties appeared to be prepared for trial from some time in March 1988 and the trial was not held until March 1989, an institutional delay of about 12 months was involved. In the jurisdiction in which this case arose, a period in the order of 10 months would not be unreasonable for systemic delay given the rapidly changing local conditions. The accused led no evidence of prejudice and little or no prejudice is inferred from the delay as the accused appeared to be content with the pace of litigation. In view of the strain on institutional resources and the absence of any significant prejudice to the accused, the delay in this case was not unreasonable. This conclusion is reached without the necessity of relying on the burden of proof.