R. v. Askov
Encyclopedia
Askov v. R., [1990] 2 S.C.R. 1199, is a 1990 appeal
heard before the Supreme Court of Canada
which established the criteria and standards by which Canadian
courts judge whether an accused's right under the Canadian Charter of Rights and Freedoms
, Section 11
(b) "to be tried within a reasonable time" has been infringed.
The appellants argued successfully that criminal charges against them should be stayed on the grounds that their trial had been unreasonably delayed, contrary to the Charter’s guarantee under Section 11(b) that "Any person charged with an offence has the right... to be tried within a reasonable time." Disagreeing with the Court of Appeal for Ontario, the Supreme Court found that the delays were indeed unreasonable and directed a stay of proceedings against the appellants. Thousands of pending criminal cases were consequently dismissed on similar grounds.
and related offences in November 1983. A date early in July 1984 was agreed on for the preliminary hearing, but the hearing was not completed until September. A trial date was set for October 1985, but the case could not be accommodated during this session, and trial was delayed until September 1986, nearly two years after the conclusion of the preliminary hearing.
When the trial began, the accused moved for a stay of proceedings on the grounds of unreasonable delay. The trial judge granted the stay, finding longstanding, uncorrected institutional problems were the major cause of the delay. The Crown
appealed the stay to the Court of Appeal, which set aside the stay, finding: "(1) that there was no misconduct on the part of the Crown resulting in the delay or any part of it; (2) that there was no indication of any objection by any of the appellants to any of the adjournments; (3) that there was no evidence of any actual prejudice to the appellants caused by the delay." R. v. Askov [1990] 2 S.C.R., at p. 1207
in Barker v. Wingo
, 407 U.S. 514 (1972) in addition to previous Canadian Supreme Court decisions in R. v. Rahey
, [1987] 1 S.C.R. 588, Mills v. The Queen
, [1986] 1 S.C.R. 863 and R. v. Conway, [1989] 1 S.C.R. 1659 in setting out four factors to consider when deciding whether the delay in bringing an accused to trial has been unreasonable:
The justices agreed that the specific guarantees provided by Section 11 of the Charter ought to be understood primarily as supporting the fundamental justice provisions of Section 7, but while Justices Cory and McLachlin
found in Section 11(b) a broader societal or communitarian interest in the principle of timely justice, Justices Dickson
, Lamer
and Sopinka
found in this section only an individual right touching the interest of an accused.
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
heard before the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
which established the criteria and standards by which Canadian
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
courts judge whether an accused's right under the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, Section 11
Section Eleven of the Canadian Charter of Rights and Freedoms
Section Eleven of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by...
(b) "to be tried within a reasonable time" has been infringed.
The appellants argued successfully that criminal charges against them should be stayed on the grounds that their trial had been unreasonably delayed, contrary to the Charter’s guarantee under Section 11(b) that "Any person charged with an offence has the right... to be tried within a reasonable time." Disagreeing with the Court of Appeal for Ontario, the Supreme Court found that the delays were indeed unreasonable and directed a stay of proceedings against the appellants. Thousands of pending criminal cases were consequently dismissed on similar grounds.
Background
Appelants Askov, Hussey and Gugliotta were initially charged with conspiracy to commit extortionExtortion
Extortion is a criminal offence which occurs when a person unlawfully obtains either money, property or services from a person, entity, or institution, through coercion. Refraining from doing harm is sometimes euphemistically called protection. Extortion is commonly practiced by organized crime...
and related offences in November 1983. A date early in July 1984 was agreed on for the preliminary hearing, but the hearing was not completed until September. A trial date was set for October 1985, but the case could not be accommodated during this session, and trial was delayed until September 1986, nearly two years after the conclusion of the preliminary hearing.
When the trial began, the accused moved for a stay of proceedings on the grounds of unreasonable delay. The trial judge granted the stay, finding longstanding, uncorrected institutional problems were the major cause of the delay. The Crown
Crown attorney
Crown Attorneys or Crown Counsel are the prosecutors in the legal system of Canada.Crown Attorneys represent the Crown and act as prosecutor in proceedings under the Criminal Code of Canada...
appealed the stay to the Court of Appeal, which set aside the stay, finding: "(1) that there was no misconduct on the part of the Crown resulting in the delay or any part of it; (2) that there was no indication of any objection by any of the appellants to any of the adjournments; (3) that there was no evidence of any actual prejudice to the appellants caused by the delay." R. v. Askov [1990] 2 S.C.R., at p. 1207
The Ruling
In siding with the appellants, the Court drew on the decision of the United States Supreme CourtSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in Barker v. Wingo
Barker v. Wingo
Barker v. Wingo, 407 U.S. 514 , was a case in which the United States Supreme Court held that determinations of whether or not the Sixth Amendment right to a speedy trial for defendants in criminal cases has been denied must be made on a case-by-case basis.One factor recognized by the Court was the...
, 407 U.S. 514 (1972) in addition to previous Canadian Supreme Court decisions in R. v. Rahey
R. v. Rahey
R. v. Rahey, [1987] 1 S.C.R. 588 is a leading constitutional decision of the Supreme Court of Canada. The accused challenged a delay of over eleven months on an application for a directed verdict as violation of the right to a trial within a reasonable time under section 11 of the Charter...
, [1987] 1 S.C.R. 588, Mills v. The Queen
Mills v. The Queen
Mills v. The Queen, [1986] 1 S.C.R. 863 is a leading constitutional decision of the Supreme Court of Canada concerning the right to a trial within a reasonable time under section 11 of the Canadian Charter of Rights and Freedoms and the meaning of a "court of competent jurisdiction" under section...
, [1986] 1 S.C.R. 863 and R. v. Conway, [1989] 1 S.C.R. 1659 in setting out four factors to consider when deciding whether the delay in bringing an accused to trial has been unreasonable:
- the length of the delay
- as delays become longer they become more difficult to excuse
- very lengthy delays are prima facie excessive and cannot be excused
- complex cases may justify longer delays
- delays owing to actions of the Crown weigh in favour of the accused
- the explanation for the delay
- delays owing to inadequate institutional resources weigh against the Crown
- the burden to justify such a delay falls upon the Crown
- in determining whether such a delay is reasonable, the jurisdiction in question may be compared to others in the country, using obtaining conditions in better, not worse, districts as a standard of comparison
- a waiver of the right by the accused
- a waiver of the right by the accused may justify the delay, but the waiver must be “informed, unequivocal and freely given”
- prejudice to the accused
- in the absence of a waiver, when a trial has been substantially delayed a certain prejudice to the interest of the accused may be inferred where it is not rebutted by the Crown
The justices agreed that the specific guarantees provided by Section 11 of the Charter ought to be understood primarily as supporting the fundamental justice provisions of Section 7, but while Justices Cory and McLachlin
Beverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
found in Section 11(b) a broader societal or communitarian interest in the principle of timely justice, Justices Dickson
Brian Dickson
Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...
, Lamer
Antonio Lamer
Joseph Antonio Charles Lamer, PC, CC, CD was a Canadian lawyer, jurist and Chief Justice of the Supreme Court of Canada.-Personal life:...
and Sopinka
John Sopinka
John Sopinka, QC was a Canadian lawyer and puisne justice on the Supreme Court of Canada, the first Ukrainian-Canadian appointed to the high court....
found in this section only an individual right touching the interest of an accused.