R v Franklin

R. v. Franklin

[1991] Court of Appeal for Ontario No. 151/89
Court of Appeal for Ontario — Grange, Griffiths and Carthy JJ.A. | Heard March 25, 1991

Background

Douglas Robert Franklin was arrested on June 21, 1987, and charged with impaired driving and driving over .08. He was released on a Promise to Appear requiring him to show up in court on July 10, 1987. Franklin's agent, John Burd — a former police officer turned paralegal — brought a letter to court requesting trial dates in May, June, or July 1988. The court told Franklin that Burd couldn't represent him unless the Crown elected to proceed summarily, which they weren't doing that day.

Franklin returned on July 31, 1987, with Burd again. This time, the Crown indicated they would proceed summarily, and a trial date of July 27, 1988 was set — thirteen months after the arrest. Burd testified he was told by the Crown attorney that this was the earliest available date, even though he had a "wide open calendar." Just before the trial, Franklin retained lawyer Riva Rotter, who brought a Charter application arguing the delay violated his right to be tried within a reasonable time.

Issues

1. Whether the 13-month delay violated Franklin's section 11(b) Charter right to be tried within a reasonable time
2. Whether Franklin waived his Charter rights by accepting the July 1988 trial date without objecting

The Waiver Analysis

The Court of Appeal focused heavily on waiver principles, citing the Supreme Court's decision in Askov. The court emphasized that any waiver of Charter rights must be "clear and unequivocal" with "full knowledge of the rights" being waived. Crucially, the court found that "silence or lack of objection cannot constitute a lawful waiver." While agreeing to a future trial date can sometimes indicate waiver, the circumstances matter enormously.

Here, Franklin's agent had been told by a Crown attorney — a representative of the Attorney General — that no earlier date was available. The Court of Appeal found this critical: Franklin accepted the date based on official information that earlier dates weren't possible. The Crown failed to prove Franklin understood he could challenge this in open court or that such a challenge would have been successful. The summary conviction appeal judge had wrongly concluded that Franklin's failure to formally request an earlier date in court constituted waiver.

Key Takeaway

Being told by the Crown that no earlier trial dates are available doesn't automatically waive your right to complain about delay later.

If you accept a trial date based on representations from Crown counsel about availability, you haven't necessarily waived your Charter rights. The Crown must prove you understood you could challenge their representations and that such a challenge would have been accommodated.