R v Askov

R. v. Askov

[1987] O.J. No. 826
Ontario Court of Appeal — Brooke, Goodman and Grange JJ.A. | September 14, 1987

Background

On November 12, 1983, four men — Elija Anton Askov, Ira Ralph Hussey, Edward Melo, and Samuel Gugliotta — were arrested for allegedly pursuing Peter Belmont in a car chase and threatening him with a sawed-off shotgun and knife. Belmont was trying to break into the "exotic" dancer business in Toronto, and the accused allegedly demanded he pay a large commission for the "privilege" of operating in their territory. When he refused, they chased him down until police intervened.

The case crawled through the system at a snail's pace. After committal for trial in September 1984, the accused had to wait over a year for their first scheduled trial date in October 1985. When that date arrived, their case wasn't reached because the court gave priority to cases where the accused were in custody. They consented to another adjournment — this time for nearly another full year to September 1986. Only when the trial was finally about to start did defence counsel raise a Charter application, arguing their right to trial within a reasonable time under s. 11(b) had been violated.

Issues

1. Did the nearly four-year delay from arrest to trial violate the accused's Charter right to be tried within a reasonable time?
2. What remedy, if any, was appropriate for the delay?

The Delay Analysis

The Court of Appeal applied the four-factor test from Barker v. Wingo: length of delay, reason for delay, the accused's assertion of their rights, and prejudice to the accused. While the court acknowledged the delay was "prima facie excessive" and caused entirely by systemic delays due to insufficient institutional resources in Peel Region, they found no Charter violation had occurred.

The critical factor was the accused's conduct during the proceedings. When the case couldn't proceed in October 1985 and was adjourned to September 1986, none of the accused objected. The court transcript showed they all simply consented to the year-long adjournment without raising any concern about delay. Justice Grange emphasized that while the Crown has the obligation to ensure a speedy trial, "the appearance of justice will not be enhanced if accused are permitted to delay or even conceal a claim for relief until any remedy, other than a stay of proceedings becomes impossible to grant."

The Acquiescence Problem

The court was particularly troubled by what appeared to be strategic timing. The accused knew in October 1985 that trial wouldn't happen until September 1986, yet they waited until the trial was about to begin to raise their Charter application. By then, the only available remedy was a stay of proceedings — the most drastic outcome. The court suggested the accused had deliberately withheld their objection to avoid other potential remedies, like a judicial direction to proceed at an earlier date.

The court also noted there was no evidence of actual prejudice to the accused beyond the inherent stress of facing charges. All were released on bail, and while bail conditions were strict, they were varied when hardship was shown.

Key Takeaway

If you're going to complain about delay, don't wait until trial day — speak up when the delay is actually happening.

The court won't look kindly on defendants who sit silently through adjournments and then claim their rights were violated only when it's strategically advantageous. While you're not required to ensure your own speedy trial, staying silent when delays occur can seriously undermine any later Charter application.