R. v. Curry

2016 BCSC 1435, 2016 CarswellBC 2152, [2016] B.C.J. No. 1637 (B.C. S.C.)

by Mike MacInnes

It is almost trite to point out that the situations which could delay a trial are close to innumerable. A noteworthy, though not unique, instance occurred in the case R. v. Curry [2016 CarswellBC 2152], where the British Columbia Supreme Court considered how to treat a delay where charges were stayed but reinstated, in the context of an application for dismissal under s. 11(b) of the Charter.

The accused was one of five persons found in a residence with a large amount of drugs. He was arrested and released on recognizance the next day - January 11, 2013. When he returned to court as required, on April 23rd of the same year, the charges were stayed. Redactions regarding a large number of confidential informants were required before the information was to be disclosed, and the Crown wished to "stop the clock" on delay while a new Information To Obtain was prepared. The Crown did not give the accused a reason for the stay, although at all times it intended to recommence the proceedings.

This and other factors led the accused to bring an application to dismiss the charges, claiming his right to a timely trial under s. 11 of the Canadian Charter of Rights and Freedoms had been violated. The total delay from the initial charge to conviction had been 40 months. The Crown, relying on case-law going back as far as 1986 and dealing with pre-charge delay, claimed that the period during which the charges were stayed should not be included in calculating the total delay. Holmes J. ruled otherwise. The charges had not been withdrawn or dismissed, and they remained outstanding. Mr. Curry stood accused before the community at all times, and the stress, anxiety and stigma from the criminal charges had not ended.

This finding was generally in keeping with earlier decisions. In the 2012 case R. v. C. (B.T.) [2012 CarswellAlta 919] the accused was charged with sexual assault. The complainant could not be located for a period of over one month, during which time proceedings were stayed. When the witness was located proceedings resumed. When the accused brought a s. 11(b) application, this delay was attributable to the Crown. (The total delay of 31 months was not found to cause prejudice and the Charter application was not successful). Even earlier, in R. v. Kalenuik [2005 CarswellOnt 8420], drug charges were stayed for several months to protect an ongoing investigation. Casey J. felt that there was no impact on the right to liberty of the accused and he was not exposed to criminal proceedings, but noted that several earlier cases had found that a stay should be considered part of the delay: ".. I believe that it is appropriate that the time during which the stay was in effect be taken into account in the section 11(b) analysis. I note that this conclusion is consistent with the purpose of the section and appears to be supported by virtually all of the prior jurisprudence on the issue." The difference was split, so to speak, as delay was attributed to the Crown but was weighted less severely than other periods.

R. v. Curry, however, takes place against the backdrop of the Supreme Court of Canada's ruling in R. v. Jordan [2016 CarswellBC 1864, 2016 CarswellBC 1865], which was delivered on the same day that the accused in Curry was found guilty. The Supreme Court found the Crown has a proactive duty to bring cases to trial, and that after a 30 month ceiling delay must be justified by the Crown as extraordinary. This likely amounts to a sizable change from the examination of actual prejudice and “balancing measures” found in earlier s. 11 jurisprudence.

Ultimately, the accused in Curry was not successful on his 11(b) application. Jordan allows for cases in a transitional period to involve considerations used in the previous approach. Holmes J. found that the efforts to bring the case to trial were reasonable, and that under the earlier caselaw the charges would not have been stayed.

However, prosecutors going forward would be well advised to stay charges only when absolutely necessary. On the one hand, the Supreme Court in Jordan was clear when it stated that delay must be treated more seriously than in the past cases, in order to protect society’s interest in fair trials. However, to the extent that issuing stays may be accepted practice, especially in cases involving lengthy and complex investigations, or when witnesses become unavailable, these type of situations may have been unforeseen. As mentioned above, there are countless ways in which a trial may be delayed, and each will have to be carefully considered.