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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Procedural rights - Trial within a reasonable time

Friday, May 19, 2017 @ 8:23 AM  


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Application by Thanabalasingham, who was charged with the second degree murder of his spouse, for a stay of proceedings on the grounds that his constitutional right to a trial within a reasonable time had been violated. The alleged crime would have been committed on August 11, 2012. Lengthy judicial proceedings ensued. The trial was set to begin on April 10, 2017 and was scheduled for a period of seven weeks, before a jury of the Superior Court of Quebec sitting in Montreal. The overall delay between the laying of the charge and the anticipated end of the trial exceeded 57 months. The Prosecution submitted that the trial would have been completed in early June 2016 if the Defence had been available to start the trial in mid-April 2016, when that date was offered by the Court.

HELD: Application granted. The Defence attorney would have been available at an earlier date, in April 2016, if that date had been offered sooner in the process. In this context, it could not be said that the delay related to the unavailability of Defence counsel was caused solely by the defence. There were no discrete and exceptional events in the present case that were unforeseeable or unavoidable. The inordinate amount of time taken for the preliminary inquiry was not beyond the control of the Prosecution. The Prosecution failed to establish a transitional exceptional circumstance in the present case. Thanabalasingham was detained since the beginning of the proceedings, in August 2012. The infringement to Thanabalasingham’s right to liberty was very serious. The Court took into consideration that Thanabalasingham was charged with second degree murder, a very serious offence. Most of the delay in the present case was caused by the chronic institutional delay problem that had plagued the criminal justice system in the district of Montreal for the past several years. Reliance on previous law could not justify the nearly five years it took to bring Thanabalasingham to trial. Thanabalasingham awaited trial in custody for an unreasonable amount of time while being presumed innocent of the charge against him. The case was not complex. The charge was very serious but this factor could not alone justify the delay. The Prosecution failed to be proactive and even contributed to the delay. Thanabalasingham’s right to a trial within a reasonable time was violated and a stay of proceedings was ordered.

R. v. Thanabalasingham, [2017] Q.J. No. 3430, Quebec Superior Court, The Honourable Alexandre Boucher J.S.C., April 7, 2017. Digest No. TLD-May152017009