Purser Law Blog

Section 11(b) of the Charter and the right to be “Tried within a Reasonable Time”

Section 11(b) of the Canadian Charter of Rights and Freedoms holds that “any person charged with an offence” has the right to be “tried within a reasonable time.” What a “reasonable time” is differs from place to place. However, in Canada, the Supreme Court of Canada has set presumptive limits, beyond which trial delay becomes presumptively unreasonable: R v Jordan, 2016 SCC 27. In the lower court (i.e., Court of Justice, formerly Provincial Court) the presumptive ceiling is 18 months. For trials that are supposed to take place in the higher court (i.e. Superior Court or the Court of King’s Bench) the presumptive ceiling is 30 months. If your trial does not take place within these ceilings, then the Court may enter a stay of proceedings, which is the functional equivalent of throwing the charges out. 

Why is this Right Important?  

As the old adage goes, “Justice delayed is justice denied.” As noted by the Supreme Court of Canada in R v Jordan, “[a]s the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs.” Additionally, the quality of evidence (for both the Crown and the Defence) may suffer as time goes on.

What If I Caused the Trial to Be Delayed?  

If you do not receive a trial within the time limits set out by the Supreme Court of Canada, the first thing a Court will look at is whether any of the delay was caused by the accused. This is known as “defence delay.” Any delay caused by yourself, or your lawyer, that was not a “legitimate” will be deducted from the overall period of delay to see if the total period of delay remains over the presumptive ceiling. This is to ensure that people are not able to avoid criminal liability by simply delaying their matters. 

“Defence delay” includes periods of time where your “illegitimate actions” caused delay or where you clearly “waived” or gave up your right to a trial within a reasonable time. Legitimate steps or the time that it takes takes to make “full answer and defence” to the criminal charges will not be considered defence delay.  

Defence delay is subtracted from the total amount of time it took for you to have a trial. If the remaining period is below the presumptive ceiling, then you must show that (1) you and your lawyer took meaningful steps to move the matter along, and (2) that your case took significantly longer than it should have. If you are able to establish these things, then your right to a trial within a reasonable time will have been breached and the Judge will stay (i.e. throw out) the proceedings. 

I did not cause any delay and my Trial was Still Delayed over 18 or 30 months 

If the remaining delay remains over the presumptive ceiling then the burden will be on the Crown to show that there were “exceptional circumstances” justifying the delay. Exceptional circumstances are those that lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a specific event, the delay caused by that event is subtracted from the overall period of delay and then re-assessed against the presumptive ceilings. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable.

Has Your Right to A Trial Within a Reasonable Time Been Breached?  

If you or someone you know thinks that they have waited too long for their criminal trial, contact Purser Law now for your free 30-minute consultation at 780-851-7435.