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CONSTITUTIONAL ISSUES – Trial within a reasonable time - Calculation of delay - Presumptive ceiling

Friday, July 17, 2020 @ 12:45 PM  


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Appeal by the Crown from a decision of the Quebec Court of Appeal that upheld a stay of proceedings in favour of Thanabalasingham, who was charged with the second degree murder of his spouse in August 2012. At the preliminary hearing, which took over a year, the Crown pursued a charge of first degree murder. In June 2015, Thanabalasingham’s trial was scheduled for February 2018. It was subsequently rescheduled to proceed in April 2017. The trial judge found his right to be tried within a reasonable time had been violated and ordered a stay of proceedings. Thanabalasingham spent nearly five years in custody awaiting trial.

HELD: Appeal dismissed. The delay gave rise to a breach of Thanabalasingham’s s. 11(b) Charter right. The preliminary hearing was not a discrete event, and its length was not outside the Crown’s control in the sense contemplated by Jordan. The net delay was 45 months, well beyond the 30-month presumptive ceiling. The vast majority of the delay stemmed from systemic delay. The trial judge did not err in concluding the Crown had failed to establish that a transitional exceptional circumstance applied. The trial judge’s error in stating that the seriousness of the offence had limited relevance was inconsequential. Even if he had not made the error, he would have arrived at the same result.

R. v. Thanabalasingham, [2020] S.C.J. No. 18, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., July 17, 2020. Digest No. TLD-July132020011-SCC