71
5
Post-trial Delay
A. SENTENCING DELAY
1) The Pre-Jordan Approach to Post-Verdict Delay — R v MacDougall and
R v Gallant
In the pre-Jordan/Morin era, the Supreme Court rst considered whether
and how section 11b of the Charter applies to delay in sentencing in
Rv MacDougall and its companion case R v Gallant. In MacDougall, the
accused pleaded guilty to a charge of indecent assault, but due to the
need for the preparation of a Pre-Sentence Report, Mr. MacDougall’s
failure to attend on one date, but mainly as a result of the illness of
the sentencing judge, twenty-two months of delay accrued between the
plea and the date the matter was ultimately stayed for delay. At trial,
the judge stayed the entire prosecution having regard to the total delay,
from the laying of the charge to the anticipated end of the sentencing.
The Crown’s appeal to the Prince Edward Island Court of Appeal against
the stay was dismissed.
Justice McLachlin (as she then was), writing for the unanimous
Supreme Court (sitting seven), held that section 11b of the Charter does
1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
2 R v MacDougall, 1998 CanLII 763 (SCC) [MacDougall].
3 R v Gallant, 1998 CanLII 764 (SCC).
4 R v MacDougall, above note 2 at paras 3–4 and 6.
5 Ibid at paras 4 and 7.
72 A Proactive Practitioner’s Guide to Section 11(b) of the Charter
apply to sentencing. This conclusion depended upon how the phrase
“charged with an oence” was to be interpreted, given that section 11b
of the Charter is applicable to those who have been charged with an
oence. Does someone whose charges have been dealt with, either by
conviction aer a trial or a plea of guilt, still fall into this category of
individuals? To be further determined was whether a “trial” within a
reasonable time included not just the trial proper, but also through to
the imposition of sentence. In the Court’s determination, “charged with
an oence” was to be interpreted broadly and purposively, and in a way
that synchronizes all of the subsections under section 11 of the Charter.
Such interpretation was also buttressed by the fact that only upon sen-
tencing is an accused person released “from the power of the prosecu-
torial arm of the law.” Further, that the outcome of a matter is not fully
known and is not complete until the sentence has been imposed led to
the conclusion that a trial for the purposes of section11b of the Charter
includes sentencing.
Finally, though in more limited respects, the sentencing process was
found to engage the interests section 11b of the Charter was designed
to protect. The Court noted that as it regards prejudice to an accused’s
liberty interests, as there was no guarantee the deprivation of liberty, by
either imprisonment or subjection to strict bail conditions, would be
taken into account on sentencing, that interest could be aected. Sotoo
security interests where delay in awaiting sentencing could exacerbate
the prejudice arising from a conviction and extend the period of anxiety
arising from the wait for a disposition. Further, an accused’s fair trial
rights could also be prejudiced by too long of a delay awaiting senten-
cing, having an impact on an accused’s ability to call evidence at the
hearing while it is fresh and available. As well, society’s interest in
seeing a nal conclusion to a matter, in addition to avoiding a scenario
where a convicted person may be on release through a lengthy delay to
6 Ibid at paras 11–17.
7 Ibid at para 11.
8 Ibid at para 13.
9 Ibid at paras 19–27.
10 Ibid at para 32.
11 Ibid at para 33.
12 Ibid at para 34.
13 Ibid at para 35.
