Stay of Proceedings Restored: Alberta Court of Appeal Upholds Ruling on Unreasonable Delay

Any person charged with an offence has the right to be tried within a reasonable time. Section 11(b) of the Charter of Rights and Freedoms recognizes the stigmatization, loss of privacy, and stress and anxiety created by the cloud of suspicion that accompanies criminal proceedings. It also recognizes that the right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. Delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses or otherwise raise a defence.

In R v Ghraizi, the accused was charged with two counts of assault and one count of uttering threats on December 26, 2018.

Mr Ghraizi’s one-day trial was originally set for November 28, 2019, 11 months after he was charged. The trial did not proceed on this date due to Crown illness and was adjourned to March 2, 2020. The trial did not conclude on March 2 and was scheduled to continue March 16, 2020, but did not proceed because the assigned Crown counsel was in a jury trial that went longer than its anticipated finish date. The matter was put over to March 23, 2020 to schedule a further date.

As a result of the Covid-19 pandemic, the Provincial Court of Alberta on March 17, 2020 restricted all in-person appearances in the courthouse and presumptively adjourned most matters for 10 weeks. On March 23, the matter was presumptively adjourned for 10 weeks to June 1. On April 29, 2020, defence was able to reschedule the trial. The earliest date which the system could accommodate was September 25, 2020, 21 months from the date Mr Ghraizi was charged.

21 months exceeded the limit of 18 months for delay in Provincial Court.

The Provincial Court judge found Mr Ghraizi’s s 11(b) Charter right to a trial within a reasonable time had been breached. The remedy imposed was a stay of proceedings.

A stay of proceedings is considered the “ultimate remedy” that is absolutely final, preventing the court from ever adjudicating the matter. Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in-Court; society will never have the matter resolved by a trier of fact. For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met: "the threshold for obtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the 'clearest of cases.

The Crown appealed the trial judge’s decision to the Court of Queen’s Bench of Alberta. There, the Justice hearing the appeal did not approach the appeal as a review of the trial judge’s decision, but rather as a new hearing into whether the Mr. Ghraizi’s right to a speedy trial was infringed. As a result, the Justice did not treat the reasons for delay with deference to the trial judge’s findings of fact. The Justice set the order for a stay of proceedings aside.

The Alberta Court of Appeal agreed with the trial judge’s assessment of the delay relative to the case and restored the stay of proceedings.

In response to the Supreme Court of Canada decisions that s. 33.1 Criminal Code violates the Charter of Rights and Freedoms and is of no force or effect, the federal government enacted new law for ext

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