Skip to Content

Unreasonable delay

In what the Chief Justice called an "extraordinary" case, the Supreme Court gives us pause to consider the challenges prosecutors face in mega-trials.


In a unanimous decision that spanned just three paragraphs, Justice Beverly McLachlin held that proceedings against a mass of suspected Hell's Angels in R. v. Auclair should be stayed due to lengthy bottlenecks in the case against them.

The decision upheld an earlier Quebec Superior Court ruling that effectively threw out drug-related charges against 31 bikers.

"The prosecution did not have a realistic plan for taking those charges to trial and conducting the trial within a reasonable time," Justice McLachlin said in her oral judgement.

That has a lot to do with the staggering nature of the evidence. As Quebec Superior Court Justice James Brunton heard, if the evidence had been printed out, it would have stacked 145km high. To review it all, one petitioner explained, would required about seven years.

The dozens of accused were rounded up in 2009 as part of operation SharQC, which netted 156 alleged members of the gang —though one of the accused died before facing a judge.

In 2011, the defence council for the crew of accused filed a petition to have the charges stayed, or quashed. Brunton denied most of that request, imposing summons for most of the accused —notably for murder and gangsterism. However, he noted, there was simply not adequate infrastructure to handle the 31 accused facing charges — there were only two courtrooms in the province that had the security required to handle the mega-trials. As such, he stayed those charges.

The Crown's appeals wound their way through the court before finally meeting their end before the top justices on Tuesday.

Anthony Moustacalis is the President of the Criminal Lawyers' Association of Canada. National asked him whether this case was a one-off, or emblematic of some deeper problems.

"In a way, it is. You have to remember that from time to time cases run away and explode," he says. He underlined the biggest issue in the case as inexperience on the part of the Crown prosecutors, who laid the various drug charges alongside unrelated murder charges — the charge sheet, noted McLachlin, "contained a number of counts that could not lawfully be included in it."

You've got to pick the most relevant charges, Moustacalis says, and move ahead with them in an efficient manner.

While nothing in this Supreme Court decision is groundbreaking, he says, "it's an affirmation of the trial management power of the court, that goes beyond just the abuse of process power."

As a direct response to the Quebec court's staying of the charges in 2011, the Conservative government introduced mega-trial legislation — the Fair and Efficient Criminal Trials Act —that was designed to streamline the system and give the courts greater power over ensuring that they do not explode like this one.

However, in a submission by the Canadian Bar Association, concerns were raised that some of the changes —including provisions allowing the prosecution or defence to request a case management judge — could actually add to the burden on the court system.

Moustacalis, who has spent five years in prosecution before putting in 25 on the defence side, agrees on that front.

"The federal government has created precipitous legislation that was foisted upon the provinces without time to act," he says. "Federal funding for the courts has either stayed the same over the last 10 years, or gone down, in certain areas. It's the old game of downloading the cost of legislation to the level below."

The federal government wouldn't say, when asked, what funding initiatives it has taken to ensure that the mega-trial process is adequately funded.

Christine Duhaime is a lawyer, and manager of Duhaime Law. She has some concerns about the decision.

"Some of the things they said are actually really bad for the administration of justice and how our justice system looks for Joe Average on the street," she says. "That's really what it came down to: it's the fact that [the Supreme Court] didn't seem convinced that a trial of this complexity with this many people, and this many issues at play could be done in a reasonable amount of time and done well. Which doesn't bode well for our justice system."

Duhaime says this could certainly act as a deterrent for prosecutors to go forward with mega-trials. Given that the Supreme Court recognized even a hypothetical delay could still constitute an infringement of the accused's right to be tried in a reasonable timeframe under section 11(b) of the Charter, prosecutors may be wary of moving forward unless the case is a sure thing. She expects that this decision could lead prosecutors to lay charges more slowly for those caught up in this mass arrests.

A spokesperson for the Quebec Ministry of Justice was adamant that the only charges dropped in this case were drug-trafficking violations — no accused murderer is walking free.

Yet Duhaime wouldn't put it too lightly.

"The charges that they stayed are not insignificant — they're organized crime charges," she says.

But even with the federal government pushing a more broad use of the mega-trials, especially when it comes to terrorism charges, this decision may "put a bit of a chill" on the prosecution side of things, Duhaime says, as nobody wants to be responsible for letting mobsters and terrorists go free.

dward Prutschi, a partner with Adler Bytensky Prutschi Shirkhman, says that while this case can probably be hung around the neck of an over-burdened Quebec legal system, "I certainly wouldn't say that other provinces are immune.

"All across Canada, the constant challenge is for courts to keep up with the increased demand in the criminal justice system and the resources that are allocated ... have just not kept up with that demand. So mega-trials put a particularly onerous strain on the system, even moreso than the daily grind."

Prutschi says, to avoid future scenarios like this one, the Crown is going to need to be more selective. We're going to need a form of "criminal justice triage," he says.

"Prosecutors are going to have to develop a culture of saying...'we cannot process every case to the fullest extent of the law.'"

That requires some tough choices, he says, but it means saving more important cases from the same fate as the SharQC charges.

Making use of scant resources is a requirement, and it wasn't done in Auclair.

"It's not enough to have the police officers ready to go. You need to have the Crown Attorney's Office also ready to spool out the prosecution. You need to have courtrooms available first at the early stages for the bail proceedings ... and you also need to be able to fund the defence side of the equation, because inevitably many of these people are ultimately going to fall to legal aid plans," Prutschi says. "And if you leave out any side of that equation, you're going to have an imbalance that means that it's impossible for this case to work its' way efficiently through the system."

An earlier version of this article wrongly attributed a quote to Anthony Laycok as the President of the Criminal Lawyers' Association of Canada. We have issued a correction to reflect that the quote was made by Anthony Moustacalis who is in fact  the President of the association. We regret the error.