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Speedy Trial Flatlined in Alberta

  • January 10, 2016
  • Clayton Rice, Q.C.

The right to trial within a reasonable time was found unconscious at the Law Courts Building in Edmonton, Alberta, on December 22, 2015. Neighbours on 97th Street were overheard speaking fondly of the maligned right that is a noisy member of the Charter of Rights community. One of the emergency medical responders said the cause was judicial asphyxiation. Here’s the story.

On April 11, 2011, Shane Vassell was charged in a single count of possession of cocaine for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act at Fort McMurray, Alberta. There was nothing unusual about the police investigation. A search warrant was executed by forced entry into a Fort McMurray residence where the cocaine was found. The police had relied upon surveillance and confidential informants. Six other individuals were also charged. By the time Vassell got to trial on April 22, 2014, three years later, all of the other defendants had fallen by the way for various reasons. He was the last man standing.

Vassell did not waive his speedy trial right nor was he responsible for any of the delay. The entire three years was attributable to the Crown or other causes. In dismissing his application for a stay of proceedings based on a violation of his right to trial within a reasonable time under s. 11(b) of the Charter of Rights, Justice R.P. Marceau, the trial judge, said this in a ruling reported as R v Vassell, 2014 ABQB 196, 587 AR 56, at para. 17:

“The length of time (excluding the 7 months – February 4 to September 9, 2013) 29.5 months is quite beyond a reasonable guideline of about 12 to 18 months to get the matter to trial where the preliminary inquiry has been waived. The lengthy delay is attributable partly to the complexities in the case, partly to the Crown not allocating sufficient reasons to vet the disclosure, but in good measure it is the lack of cooperation of some of the accused in retaining counsel, lack of cooperation of counsel to move the matter on to trial. The one year delay from first appearance in the Court of Queen’s Bench to the first trial date is longer than the usual 6 to 8 month guideline, but a two week trial does tax the ability of the Court to accommodate in 6 to 8 months. The only delay strictly attributable to the Crown is the last 7 month delay. There is prejudice to the Accused in counsel costs, mobility to conduct his business, travel restrictions but he has not been in custody for any of the time pending trial. There is also no evidence the Applicant is prejudiced in making full answer and defence to the charges. On the facts of this case the right of the state to ensure alleged drug traffickers are dealt with according to law outweighs the prejudice to the Accused of a lengthy delay before trial. I conclude a sufficient case has not been made out for me to find there is a breach of the Applicant’s rights to be tried within a reasonable time. I emphasize again that none of the delay is attributable to the Accused or his counsel who tried to move the trial along at every juncture. It is regrettable that the other accused and their counsel are responsible for a good part of the delay and the Applicant cannot attribute that part of the delay to the Crown, nor can it [sic] attribute the seven month delay for the unforeseen death and funeral of a close relative of Crown counsel to the Crown.” [Emphasis mine]

Vassell appealed.

On December 22, 2015, the Alberta Court of Appeal released its divided 2-1 opinion reported as R v Vassell, 2015 ABCA 409 where Justice Jack Watson dismissed the appeal with Justice Patricia A. Rowbotham concurring in the result. The majority agreed with the trial judge regarding the characterization of four distinct periods of delay as: (1) delay caused by actions of the co-accused and their counsel; (2) institutional delay and “some lack of focus” on the trial by Crown counsel; (3) a death in the family of Crown counsel that resulted in an adjournment; and, (4) failure of the Crown to disclose an expert’s report that “blindsided” the defence. It makes little difference that one event caused 11 months delay or another caused 7 months delay. The pivotal point is that none of the delay was caused by Vassell or his counsel. Vassell actually took steps to facilitate an early trial date by waiving his preliminary inquiry. However, the majority concluded, at para. 17, that there was no “overriding” or “reviewable” error made by the trial judge. How Justice Watson got to that conclusion is best focused in the dissenting reasons of Justice Brian K. O’Ferrall, at paras. 44-47:

“While the Crown did not create the need for the funeral, the fact that Crown counsel needed to travel to the East Coast to attend, and that the trial could not be immediately re-scheduled, still delayed the appellant’s trial by seven months. The fact that the Crown chose not to ask someone else to conduct the trial, or that a more immediate trial date was not available, resulted in an institutional delay of seven months for which the Crown must assume responsibility.

The trial judge held that…much of the delay was caused by the further actions of the co-accused and their counsel…As the trial judge made clear, the appellant had nothing to do with this delay. Nonetheless…he dismissed the significance of this period of delay in determining whether the overall delay was reasonable because it could not be attributed to the Crown…[E]ven where a particular delay cannot be attributed to the actions of either the Crown or defence it must still be considered in the context of the overall delay [u]nder the heading ‘Other Reasons for Delay’.

By not including these aspects of the delay in his analysis [the trial judge] effectively assigned responsibility for these periods of delay to the appellant.”

Justice O’Ferrall went on to hold, at paras. 53-54, that the Crown must bear responsibility for a failure to appreciate the parameters of an uncomplicated case, its failure to provide timely disclosure and the inadequate allocation of prosecutorial resources. He concluded that this case was akin to the Supreme Court’s opinions in R v Askov, [1990] 2 SCR 1199 and R v Godin, [2009] 2 SCR 3 where a 34 month delay and a 30 month delay were held to be unreasonable. It appears that there was “some discussion” in the Court of Appeal that there had been a “lack of prosecutorial and superior court coverage in Fort McMurray”. It is, however, well settled law that delay caused by a lack of institutional resources cannot be used to justify an otherwise unreasonable delay.

What is striking about the majority opinion in Vassell is the failure to analyze the purpose of the speedy trial right. Justice Watson certainly cited the interests that the right protects, at para. 6, but nowhere did he consider the purpose that lies at the heart of the right. Interest and purpose are not the same thing. Justice O’Ferrall did not address it either but he may not have been called on to do so as his dissenting reasons were a targeted response to the opinion of the majority. Both addressed prejudice as one of the factors in the analysis but not in the context of purpose. Let’s get back to the basics here.

In the landmark ruling of the Supreme Court of Canada in R v Morin, [1992] 1 SCR 771 Justice John Sopinka, writing for the majority, stated at para. 62, that the two-fold purpose of Charter s. 11(b) is to expedite trials and minimize prejudice. Taking three years to get a case to trial, through no fault of the defendant, is hardly expeditious by any reasonable standard. The Morin guideline for institutional delay in Canada is 8 to 10 months in provincial courts. That guideline is elastic. Even if it was extended to account for the transition from the Provincial Court of Alberta to the Court of Queen’s Bench, after Vassell waived the preliminary inquiry, the progress of the prosecution was lethargic. It is important to remember, as Justice Sopinka pointed out in Morin, at para. 62, that it is the duty of the Crown to bring cases to trial. The Crown here failed in that duty – a duty owed to the defendant, the court and the nation, all three of which it serves in the office of public prosecutor.

Prejudice takes many forms but finds application for speedy trial purposes in two ways – presumed and proved. Prejudice is presumed to flow from long periods of delay. The longer the delay the greater the likelihood that prejudice will be inferred. Not only was there inferred prejudice in Vassell but the trial judge found, at para. 17, that the defendant had sustained specific prejudice, “…in counsel costs, mobility to conduct his business, [and] travel restrictions.” The trial judge’s findings of actual prejudice were not disturbed on appeal. And Justice O’Ferrall correctly noted, at para. 59, that a delay of three years “presumes prejudice to the appellant”.

Justice Watson also ignored the secondary societal interest in Charter s. 11(b) that is most obvious when it parallels the interest of a defendant as it did here. Justice Sopinka, in Morin at para. 29, reminded us all that society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated fairly. “In this respect,” he wrote, “trials held promptly enjoy the confidence of the public.” And, as Justice G. Arthur Martin said in R v Beason (1983), 36 CR (3d) 73 (Ont CA), at p. 96: “Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused.”

The majority opinion in Vassell thus fails not only this defendant but the nation too. It is important to emphasize that the rights of drug dealers are your rights and mine. And s. 52 of the Constitution Act, 1982, says that the constitution is the “supreme law of Canada”. Justice Watson would do well to remember that. The taxpayers of Canada have a right to expect it.

On December 23, 2015, the next day, Vassell filed a notice of appeal in the Supreme Court of Canada.

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