Canada SC upholds stay of charges in favour of a Sri Lankan man accused of murder, reaffirms right to be tried within a reasonable time

Supreme Court of Canada: Full Bench of Wagner CJ and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer J., rejected an appeal by the Crown against a trial court’s order granting a stay of charges in the case of a Sri Lankan man accused of murder, holding that undue delays in trial are unjust to the accused, the victims and the society as a whole. 

Mr Thanabalasingham was accused of murder in 2012 and his preliminary hearing lasted over a year. The trial was scheduled to be held in April, 2017, but shortly before it was to commence, the accused brought a motion for a stay of proceedings, claiming a violation of his rights under Section 11(b) of the Canadian Charter of Rights and Freedoms, which guarantees the right to be tried within a reasonable time. A stay of proceedings would mean that the trial would not proceed and there would be no further court action seeking a verdict, at least for the time being. The trial judge ordered the stay and the Court of Appeals upheld that order. The present case is the Crown’s appeal against it in the Supreme Court.

While Maude Payette, Richard Audet and Catherine Perreault represented the appellant, no one appeared for the respondent, who had been deported in 2017 after the trial court’s ruling. Louis Belleau and Antoine Grondin-Couture served as amicus curiae.

The Court held that the 30-month presumptive ceiling established in R v. Jordan [2016] 1 S.C.R. 631, which it considered the guiding framework in determining Section 11(b) infringements, had clearly been breached since there had been a delay of almost five years between the charge and the end of trial. It rejected the Crown’s argument claiming that the case fell under the transitional exceptional circumstance, stating that though most of the delay had accrued before the release of the guidelines in Jordan in 2016, the delay in this case had stemmed from the very systemic delay which the Court had intended to do away with while passing Jordan. Moreover, the present case, with its 43 month-delay, would have warranted a stay even under the previous framework established in R v Morin [1992] 1 S.C.R. 771, which set the limit between 14 to 18 months.

The Court emphasized repeatedly on its intention to change what it called “the culture of rampant and long-standing systemic delay — and complacency towards that delay — that had grown up in the Canadian criminal justice system,” and, consequently, dismissed the appeal. [Her Majesty v. Sivaloganathan  Thanabalasingham, 2020 SCC OnLine Can SC 1 , decided on 17-07-2020]

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