The Duty of the Crown to Mitigate Delay: Severance and 11(b)

By Jordyn Cowley, Associate

In a recent case, the Superior Court of Justice was forced to consider two important competing interests: society’s interest in co-accused participating in a joint trial and the 11(b) rights of individual accused. In this case, after awaiting trial for three years, our client, Mr. Smith, and his co-accused, Mr. Douse, faced a potential further year-long delay due to the actions of the Crown and a second co-accused, Mr. Sitladeen, who had fled to the United States prior to his arrest.

Surely, the arrest of Mr. Sitladeen in the US was a discrete event, outside of anyone else’s control. The timing was unfortunate and it was not until one month prior to Mr. Smith and Mr. Douse’s trial date that Mr. Sitladeen was actually extradited back to Canada. Upon his arrival in Canada, however, the Crown elected to prefer an indictment joining all three co-accused together. To no one’s surprise, Mr. Sitladeen was not prepared to proceed to a murder trial within one month’s time. The Crown’s actions, in preferring an indictment joining the co-accused, therefore necessitated a lengthy adjournment, absent a successful application for severance. 

In the judgment attached, Justice Schreck acknowledged the societal importance of joint trials, but opined on the need for proactive steps to be taken by the Crown to prevent delay. Where there is obvious potential for delay in violation of an individual’s right to trial within a reasonable time, the Crown must take steps to mitigate that delay to the extent possible. In this case, the obvious way in which the delay could have been mitigated would have been for the Crown to sever Mr. Sitladeen from his co-accused, or, more reasonably, elect not to join him in the first place. Quoting Watt J.A., Justice Schreck noted that “a joint trial is not some magic wand the Crown can wave to make a co-accused’s s. 11(b) rights disappear.” In His Honour’s words: “if the Crown will not take a “proactive stance,” then the court will.”