Case information

Charter of Rights — Right to be tried within a reasonable time (s. 11(b)) — Whether non-prosecuting agencies are “the Crown” for the purpose of attributing delay — Whether waivers of delay given in reliance on unintentional misrepresentations can later be vitiated

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The respondent was charged with indictable offences on March 11, 2017. Approximately one year later, a police laboratory analysed certain DNA evidence from the investigation, but this produced results of limited assistance to the Crown. Those results were disclosed in May 2018. The prosecution proceeded; the Crown advised the Court that it was prepared to proceed to trial, and the respondent waived certain periods of delay during which he and his counsel were unable to proceed.

In May 2019, a prosecutor spoke with an employee at the police laboratory for the first time, who advised that a new means of DNA analysis had become available in July 2018, and that this analysis may produce more useful results. The prosecutor elected to pursue this avenue. The trial was adjourned as a result. Following several pre-trial applications, the trial was eventually rescheduled for December 2020, approximately 45 months after the charge date. The respondent applied for a stay of proceedings, alleging a violation of his right to trial within a reasonable time.

The trial judge held that the Crown’s late discovery of the new testing method undermined its earlier representations that it was prepared for trial. These unintentional misrepresentations vitiated all but 43 days of the respondent’s 160 days of waivers. Furthermore, the late discovery of the new DNA testing procedure is not an exceptional circumstance because the police laboratory is indivisible from the Crown. The real cause of the trial adjournment was the late disclosure of the results of the new testing, which occasioned a necessary and reasonable defence request for time to review and respond. Nearly all of the 45 months of delay was attributed to the Crown and a judicial stay followed.

The Court of Appeal held that the timing of defence applications was reasonable and did not generate any delay attributable to the defence, and that the COVID-19 pandemic and late discovery of the new DNA testing method were not exceptional circumstances that rebutted the presumptively unreasonable delay in this case. It declined to rule on whether waivers of delay can later be vitiated by unintentional misrepresentations because that ruling would not affect the outcome of this case. The appeal was dismissed.