R. v. Cisar, 2014 ONCA 151
[11] Section 11(a) of the Charter guarantees a person charged with an offence the right “to be informed without unreasonable delay of the specific offence”. The provision thus provides two forms of constitutional protection. The primary protection is notice of the specific offence. Without notice of the specific offence an accused may be deprived of the ability to make full answer and defence. Accused have the right to know with what they are charged so they can make decisions about their defence, assemble evidence and prepare to meet the prosecution case. This element of s. 11(a) is largely codified in s. 581 of the Criminal Code, which sets out the minimum requirements for sufficiency of an information: R. v. Cancor Software Corp. (1990), 1990 CanLII 6817 (ON CA), 74 O.R. (2d) 65 (C.A.) and R. v. Lucas (1983), 1983 CanLII 3578 (NS CA), 57 N.S.R. (2d) 159 (S.C. App. Div.). In the latter case, Jones J.A. referred to this court’s pre-Charter decision in R. v. Toth, 1959 CanLII 111 (ON CA), [1959] O.R. 137 (C.A.), which described as a “fundamental principle of our law that an indictment must charge an offence in such a manner as clearly to bring home to an accused an accurate knowledge of the offence with which he is charged”. In Cancor, this court also referred to an article by E. Ratushny -- "The Role of the Accused in the Criminal Process" – in W.S. Tarnopolsky & G.A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary (Toronto: Carswell, 1982), at 352, which identifies another reason for this s. 11(a) guarantee. It supports the important element of the rule of law that an accused can only be charged with an offence known to law:
A specific accusation presupposes a specific offence in law. It, therefore, provides an opportunity at the outset for the accused to challenge the authority of the officials of the state to subject him to the criminal process. If no offence exists in law, the accusation can be attacked and quashed, thereby terminating the proceeding.
[12] The second right protected by s. 11(a) and the right in issue in this appeal is the right to be informed without unreasonable delay. The content of this right must be considered in the context in which it is found. In my view, like the right to be informed of the specific offence, the object of the protection against unreasonable delay is also primarily to protect the right to make full answer and defence. This understanding of the objective of s. 11(a) is also consistent with the context provided by other parts of s. 11 of the Charter, particularly the related right to trial within a reasonable time in s. 11(b). The extensive case law considering s. 11(b) has identified the rights protected by that provision as (1) the right to security of the person; (2) the right to liberty, and (3) the right to a fair trial. In R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at p. 786, the court explained how those rights are protected:
The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.
[13] Until an accused has been informed of the charge, it is only the right to a fair trial that is impacted by delay. If accused are not aware of the charge, they are not subject to the anxiety, concern and stigma of exposure to criminal proceedings and their liberty is not impacted.
[14] The Supreme Court of Canada in R. v. Delaronde, 1997 CanLII 404 (SCC), [1997] 1 S.C.R. 213, appears to have approved of a form of analysis of s. 11(a) that is similar to s. 11(b) analysis. Delaronde was an appeal from a decision of the Quebec Court of Appeal reported at 1996 CanLII 6332 (QC CA), [1996] R.J.Q. 591. An English translation of the Court of Appeal’s decision is reported at 115 C.C.C. (3d) 355. The Supreme Court of Canada in oral reasons dismissed the accused’s appeal for the reasons of Otis J.A. in the Court of Appeal. Later, Lamer C.J.C. in a short addendum left open the possibility that s. 11(a) may also protect against prejudice to economic interests for which s. 24(1) might provide remedies. As he said at para. 5: “Having charges pending against one can affect decisions one must make in one’s life that are unrelated to the preparation of a defence.” This aspect of s. 11(a) is not an issue in this case, except as a factor the trial judge took into consideration at sentencing.
[15] In her reasons in Delaronde, Otis J.A. held that delay under s. 11(a) should be analyzed using the same factors as under s. 11(b), namely: the length of the delay, waiver of time periods, the reasons for the delay and prejudice to the accused. The findings of fact by the trial judge in this case have simplified the analysis. The delay runs from the date the charge was laid until the appellant was arrested and informed of the charge; that is, from April 30, 1999 to August 24, 2007, over eight years. The trial judge found that while the appellant may have been aware of possible civil proceedings by Spicer Corporation, and may have been taking steps to avoid having to deal with Spicer, he was not aware of the criminal charges until his arrest. The trial judge also found that the delay in informing the appellant of the charges was the responsibility of the authorities. The trial judge also found that there was no waiver of any s. 11(a) time periods by the appellant. The trial judge held that the authorities had caused the delay. As he said, “the bottom line is that the investigation was so inadequate I am not going to hold [the appellant] responsible for it and I do hold the authorities responsible”. This finding is fully supported by the evidence. Given the information provided by Spicer Corporation, even a modest effort by the police would have resulted in the appellant being found and informed of the charges after he returned to Canada in 2000.
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