R. v. Askov

59 C.C.C. (3d) 449



per Cory J.: the ''liberty interest'' inherent in s. 11(b) addresses the protection of the physical freedom of the accused against unduly lengthy pre-trial detention. The ''security of the person interest'' recognizes the need for the protection of more than just the physical integrity of the accused thereby providing a safeguard against ''overlong subjection to the vexations and vicissitudes of a pending criminal accusation''. These vexations were described as the ''stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction'' (page 468) ...actual prejudice to the accused did not need to be considered, as actual prejudice is also a component of society's interest in a fair trial. ...s. 11(b) explicitly focuses upon the individual interest of liberty and security of the person. Like other specific guarantees provided by s. 11, this paragraph is primarily concerned with an aspect of fundamental justice guaranteed by s. 7 of the Charter. There could be no greater frustration imaginable for innocent persons charged with an offence than to be denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial. The time awaiting trial must be exquisite agony for accused persons and their immediate family. It is a fundamental precept of our criminal law that every individual is presumed to be innocent until proven guilty. It follows that on the same fundamental level of importance, all accused persons, each one of whom is presumed to be innocent, should be given the opportunity to defend themselves against the charges they face and to have their name cleared and reputation re-established at the earliest possible time. (page 474).....conduct of the Crown (or delay attributable to the Crown), (page 477) Generally speaking, this category will comprise all of the potential factors causing delay which flow from the nature of the case, the conduct of the Crown, including officers of the state, and the inherent time requirements of the case. Delays attributable to the actions of the Crown or its officers will weigh in favour of the accused. For example, the 19 adjournments initiated by the trial judge in Rahey or the unavailability of judges because of holidays in Smith are examples where the actions or the lack of actions of Crown officers weighed against the state in the assessment of the reasonableness of the delay.