Monday, 28 November 2016

Criminal charges stayed for want of a speedy trial                                                       

No one anywhere should have to linger in jail for a very long time while waiting for his or her trial to eventually begin or once started; finally comes to an end. But unfortunately this occurs far too often.

I was fortunate over half a century ago when I was arrested for giving shelter to a friend who was being looked for by the police. I had my one-day trial three days later, I was sent to prison and later I was pardoned and all records relating to my arrest and incarceration were ordered by the federal government to be destroyed.    

Section 11 of the Canadian Charter of Rights and Freedoms entitles a person charged with an offence the right to be tried within a reasonable time. Where there is a breach of this right, the available remedy to a court is a stay of proceedings. The key words in this legislation are “reasonable time”.  What constitutes a “reasonable time?”

The longest time anyone in Canada waited for a trial was (get ready for it) when charges were laid 45 years after the alleged offences occurred.

Reasonableness in delays depends, in part, on the amount of investigative work that is involved, the number of interested parties and their locations, and/or the complexity of the case. Reasonableness also relates to local court resources and/or how they compare to other jurisdictions. Other elements in determining reasonableness of delay could include delays by either the Crown attorney or defense counsel, or even the Court itself.

In R. v. Jordan (2016), the Supreme Court of Canada established that a delay longer than 30 months from when a charge is laid to the trial's completion is "presumptively unreasonable" and any delay by the Crown beyond that time that is not justified by exceptional circumstances that are either unforeseeable or beyond the Crown's control must result in a stay of proceedings.

Some time ago, I represented a friend who was charged with a minor traffic offence. He had waited 36 months for the day of his final attendance in the court. Needless to say, my request in written form for the stay of proceedings was granted.  The Supreme Court said that in minor charges, the waiting time for trials is much less. The reason for the delay? He waited three years for the police report which he was entitled to have handed over  to him.

The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court or cases tried in the provincial court after a preliminary inquiry was held. That ruling by the Supreme Court came down this year.

 Once the presumptive ceiling is exceeded, the burden is on the Crown (prosecutor) to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, a stay will follow. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.

 It is obviously impossible to identify in advance all circumstances that may qualify as exceptional for the purposes of adjudicating a section 11(b) application. Ultimately, the determination of whether circumstances are exceptional will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Most significantly, the absence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay.

With respect to delays below the presumptive ceiling, the burden is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the section 11(b) application must fail. Stays beneath the presumptive ceiling should only be granted in clear cases where the delay was unavoidable.

As to the first factor, while the defence might not be able to resolve the Crown’s or the trial court’s challenges, ii is incumbent on the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the section 11(b) application) reasonably and expeditiously.

At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. That is because although the defence is required to act reasonably, it is not expected to not perfectly.

Turning to the second factor, the defence must show that the time the case has taken to come to trial, markedly exceeds the reasonable time requirements of the case. These requirements derive from a variety of factors, including the complexity of the case and local considerations. Determining the time the case reasonably should have taken is not a matter of precise calculation, as has been the practice in the past.

All the parties were operating within the culture of complacency towards delay that has pervaded the criminal justice system in recent years. Broader structural and procedural changes, in addition to day‑to‑day efforts, are required to maintain the public’s confidence by delivering justice in a timely manner. Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. Timely trials are possible. More than that, they are constitutionally required.

Imre Finta was a commander of the Gendarmerie (police) in Hungary  during the Second World War. After the war he immigrated to Canada and became a citizen in 1956. Evidence was discovered that suggested that he may have participated in the deportation of Jews from Hungary during the war. In 1988, while in Canada, he was charged with unlawful confinement, robbery, kidnapping and manslaughter under the war crimes provisions in the Canadian Criminal Code.

During the pre-trial, Finta's lawyers, Doug Christie and Barbara Kulaszka, challenged the constitutionality of the criminal charges as a violation of section 11(b) of the Charter. The judge rejected this claim.

 The Crown's case depended in large measure on the testimony of 19 witnesses who had been interned at Szeged and deported to the concentration camps.  The evidence of these survivors fell into four general groups.  Six witnesses who knew Finta before the events in issue testified as to things said and done by him at the brickyard (where the Jews were held) and at the train station. 

A second group consisting of three witnesses who did not know Finta beforehand but identified him as having said or done certain things at the brickyard and at the station. 

A third group consisting of three witnesses who also did not know Finta beforehand also testified as to things said and done at the brickyard and at the station.  However, this last group based their identification of respondent on statements made to them by others. 

The fourth group, consisting of eight witnesses who did not know Finta beforehand and did not identify him, however they gave evidence as to events at the brickyard and the train station.  In addition to the evidence of the survivors, the Crown relied on photographs, handwriting and fingerprint evidence to identify Finta as a captain in the Gendarmerie at Szeged at the relevant time.  Expert and documentary evidence was tendered to establish the historical context of the evidence, the relevant command structure in place in Hungary in 1944 and the state of international law in 1944.

During the trial, the trial judge, on behalf of the defence, called the evidence of two eye‑witnesses, Ballo and Kemeny.  The statement and minutes of a third witness, Dallos, whose testimony was given at Finta`s Hungarian trial, was also admitted.  Dallos, a survivor of the brickyard who died in 1963, gave evidence of the existence of a lieutenant who might have been in charge of the confinement and deportation of the Jews at the brickyard.  The trial judge ruled that, although the evidence was of a hearsay nature, it was admissible.  He also stated that, together with other evidence, it could leave the jury with a reasonable doubt about the responsibility of Finta for confinement and brickyard conditions.  The trial judge warned the jury in his charge about the hearsay nature of the evidence.

Finta was acquitted at trial and a majority of the Court of Appeal dismissed the Crown's appeal from that acquittal.  The decision of the Court of Appeal was appealed and cross‑appealed to the Supreme Court of Canada.

Several issues were raised on appeal.  Firstly, was s. 7(3.71) of the Criminal Code merely jurisdictional in nature or did it create two new offences, a crime against humanity and a war crime, and define the essential elements of the offences charged such that it was necessary for the jury to decide, beyond a reasonable doubt, not only whether the respondent was guilty of the 1927 Criminal Code offences charged, but also whether his acts constituted crimes against humanity and/or war crimes as defined in Section  7(3.76)?  

Secondly, did the trial judge misdirect the jury as to the requisite mens rea for each offence by requiring the Crown to prove not only that the respondent intended to commit the 1927 Criminal Code offences charged, but also that he knew that his acts constituted war crimes and/or crimes against humanity as defined in s. 7(3.76)?  

Third, did the trial judge err in putting the "peace officer defence" (section 25 of the Code), the "military orders defence" and the issue of mistake of fact to the jury and did he misdirect the jury in the manner in which he defined those defences?  

Fourth, did the trial judge's instructions to the jury adequately correct defence counsel's inflammatory and improper jury address so as to overcome the prejudice to the Crown and not deprive it of a fair trial?  

Fifth, was the Dallos "evidence" (police statement and deposition) admissible and, in particular, in finding it admissible even though it did not fall within any of the recognized exceptions to the hearsay rule?  

Sixth, did the trial judge err calling the Dallos evidence and the videotaped commission evidence as his own evidence, thereby making it unnecessary for the defence to do so and as a result depriving the Crown of its statutory right to address the jury last, and if so, did it result in a substantial wrong or miscarriage of justice?  

Seventh, were the trial judge's instructions to the jury relating to the Crown's identification evidence appropriate. 

These questions would become academic if it was decided by the Supreme Court that Finta was denied a speedy trial as per the Canadian Charter.

The constitutional questions stated on the cross‑appeal queried whether section  7(3.74) and section  7(3.76) of the Criminal Code  violate section 7 (the principles of fundamental justice), section 11(a) (the right to be informed without unreasonable delay of the specific offence), section 11(b) (the right to trial within a reasonable time), section 11(d) (the right to be presumed innocent), section 11(g) (the requirement that an act or omission constitutes an offence), section 12 (the prohibition against cruel and unusual punishment) or section 15 (the equality guarantees) of the Canadian Charter of Rights and Freedoms, and if so, whether they were justifiable under section 1. That section states; 

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Supreme Court majority decision, written by Justice Cory, found that the delay did not engage section 11(b) of the Charter as the period of unreasonable delay begins at the time the charge is laid however, a delay of 45 years, in fact, favours the accused as the memory of witnesses will be limited. Reasonableness depends, in part, on the amount of investigative work that it involved. Here, where investigation will easily stretch into years, a length of time amounting to 45 years is not beyond reason.

If Finta had information that could have been effective as part of his defence in his case but the witness’ memory was curtailed because of the long delay of the trial, it is possible that section 11 (b) could be applied rightly for a stay of proceedings. 

Justice Cory also found that the provisions did not violate section 7 of the Charter as the delay was not contrary to any principles of fundamental justice. Nor was there a violation of sections 11(a), 11(d), 11(g), 12, or 15.

Section 11(g) was particularly notable as it allowed Canadian courts to apply Canadian criminal law for acts that occurred outside of the country, but only where the acts were considered war crimes in which acts committed in the brickyard and the train station could be called war crimes.

The reason why Finta was acquitted of the war crimes was because orders given by superior officers to those below them in rank are a defence to criminal responsibility and are available to members of the military or police forces in prosecutions for war crimes or crimes against humanity, provided that the accused had no moral choice as to whether to follow the orders. Reliance on the defence is excluded where the orders were manifestly unlawful such as participation in genocide, murder and/or torture.

A very recent murder trial has perked the attention of Canadians. The prosecution has decided to appeal a stay of proceedings against an Ottawa man charged with first-degree murder. Picard was charged in the killing of Fouad Nayel, whose remains were found in 2012.

Superior Court Justice Julianne Parfett ordered the stay against Adam Picard, 33, in November 2016 on the grounds that it had taken too long to get him to trial. Justice Parfett said the long delay had violated Picard's rights to a speedy trial. The prosecution, in its notice of appeal, has argued that Justice Parfett made several errors, including underestimating the complexity of the case.

This will be an interesting appeal to look forward to. When I get the results, I will place it at the bottom of this article as an UPDATE. 

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