In a unanimous ruling, the Supreme Court of Canada has found that for trials held during the COVID-19 pandemic, it was acceptable for judges to consent to judge-only trials over the objections of Crown prosecutors to avoid creating delays.
The Court’s reasoning, however, split 5-2 over where the line was when it came to the Crown’s prosecutorial discretion.
Charged with the second-degree murder of his spouse, accused Pascal Varennes’ trial was set for September 2020, when the pandemic was in full swing. In June 2020, he requested a judge-alone trial to avoid possible delays with a jury trial, which would breach his Charter right to be tried in a reasonable time. The Crown refused to consent, asserting that the public interest favoured a jury trial. However, the judge found the refusal was “unfair or unreasonable in the circumstances” and allowed the judge-only trial.
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Kyla Lee of Acumen Law Corporation in Vancouver, and the past chair of the CBA’s criminal justice section, says the decision helps clarify the circumstances when an interlocutory appeal can be brought in a criminal case, and when the Crown can appeal from an acquittal where there might be a jurisdictional error.
The majority noted that the path to overriding prosecutorial discretion could come from either abuse of process or in applying Section 24(1) of the Charter, which allows superior courts to order an “appropriate and just” remedy to a rights violation, including the anticipation of probable future breaches.
Lee says the majority’s dealing with this is important.
“They accepted that the violation of the 11(b) right [to a trial in a reasonable time period] was inevitable, even though there wasn’t a specific finding by the trial judge about that.”
This is useful, particularly for people mid-trial or about to start a trial, who are facing adjournments for issues outside of their control, but wouldn’t necessarily fall within exceptional circumstances.
“It’s helpful for people to be able to rely on a broader range of remedies under 24(1),” Lee says, noting that the usual remedy for an 11(b) breach is a stay.
It opens the door for people who realize their rights are going to be breached based on how things are going to seek a remedy at the time.
“That probably also will streamline things in a lot of cases where otherwise the 11(b) applications are kicked down the road, where things are passing the 18- or 30-month ceilings,” she says.
It may also lower the standard for proving a breach—which the concurring decision took issue with—but as a defence lawyer, Lee is in favour.
