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Logistics no excuse for unconstitutional delay: SCC

Crown prosecutors must be proactive to ensure swift justice
|Written By David Dias

In a surprisingly cut-and-dried decision, the Supreme Court of Canada wasted little ink — just 12 paragraphs — in overturning an appeal court decision out of Alberta that ignored the defendant’s right to be tried within a reasonable time.

‘The lesson for Crown prosecutors is that institutional problems are no excuse for rights violations,’ says Graham Johnson.
In Vassell v. R., Justice Michael Moldaver, writing on behalf of a unanimous seven-judge panel, sided entirely with the dissenting opinion of Justice Brian O’Ferrall — without which the appeal may never have been heard.

The appeal stems from a bungled prosecution for drug trafficking. The appellant was charged with six other defendants, and Crown prosecutors opted to join the allegations under a single indictment.

That was their first mistake. Logistical problems — but, importantly, not ones caused by the appellant — led to multiple delays, and ultimately only Vassell could be tried.

Throughout the proceedings, the respondent and his counsel proactively sought a speedy resolution, but the trial was rescheduled twice due to adjournments resulting from the unavailability of counsel on specific dates.

Ultimately, the defendant waited three years for a three-day trial. Defence counsel then applied for a stay of the proceedings due to the delay, which was denied. The appeal was also dismissed, with O’Ferrall’s dissent.

Today, the SCC reverses that decision with a ruling that backs the dissent, while criticizing the Crown for its failed prosecution and the lower courts for failing to see what was a clear violation.

“[W]hen a violation is raised, courts must be careful not to miss the forest for the trees. . . . The forest in this case is plain as day. At every opportunity, Mr. Vassell attempted to move his case to trial. But in the end, as O’Ferrall J.A. observed, he ‘waited three years for a three-day trial,’” writes Moldaver.

“Despite Mr. Vassell’s best efforts, his trial became bogged down as a result of a series of events over which he had no control and for which he bore no responsibility. The Crown was required to be more proactive in light of Mr. Vassell’s consistent efforts to obtain a speedy trial . . .”

Graham Johnson, an Edmonton lawyer at Dawson Duckett Shaigec & Garcia, represented the defendant. He says when constitutional challenges of this nature are dismissed, it’s often because trial judges fail to hold Crown prosecutors to account for the institutional failings of the state.

“Any delay that is not clearly the fault of the Crown prosecutors’ office just kind of gets excused,” he says. “You know, they’ll say that the fact that no trial time was available for a year is not the Crown’s fault. The fact that co-counsel are not available for a certain amount of time is not the Crown’s fault.

“But what I tried to argue before the Supreme Court is that any delay that is not the fault of the accused is the Crown’s fault, meaning the state. It’s the job of the state to get an accused to trial. The Crown, meaning the state, is the one responsible for putting resources or lack thereof in our courts. And accordingly they own the consequences of institutional delay.”

Johnson says he was surprised by the trial judge’s decision to deny his client’s application for a stay, but he was even more surprised that the appeal court denied the application.

“They were just so incredibly dismissive,” he says. “If you look at the majority judgment, it’s maybe half the length of the dissent. There isn’t much of a legal analysis at all. They were just incredibly dismissive of the whole issue, so it was nice that the Supreme Court took some time to write something on this in reversing the Alberta Court of Appeal.”

While the Supreme Court’s decision reinforces the right to swift justice, the lesson for Crown prosecutors, says Graham, is that institutional problems are no excuse for rights violations.

“They have a proactive responsibility to make sure the thing gets moved along, and if that means they have to sever [the indictment] to protect someone’s s. 11(b) rights, then that’s what they have to do.”


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