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Trial Delay Limit: Section 11(b) of the Charter of Rights and Freedoms
Question: What is the constitutional right regarding the timing of a trial in Canada?
Answer: Every person charged with an offence has the right to be tried within a reasonable time, as mandated by section 11(b) of the Charter of Rights and Freedoms. This right is vital in ensuring justice and preventing unnecessary delays in the legal process. If you need assistance navigating these complex legal principles, Hogan Paralegal Services is here to provide reliable support and guidance through your case.
The Right to be Tried Within a Reasonable Time
Whether a person is accused of violating the Criminal Code, R.S.C. 1985, c. C-46, or is accused of a prosecutable offence that proceeds per the Provincial Offences Act, R.S.O. 1990, c. P.33, and therefore involving cases ranging from murder to a traffic ticket, the accused person is provided the constitutional right to receive a trial within a reasonable time. With this said, the question of what is "reasonable" commonly arises and was the question answered by the Supreme Court in what are now known as "the Jordan principles". Where a Trial fails to occur within the Jordan time limits, the case may be stayed, essentially thrown out of court due to the violation of the Charter rights of the accused person.
The Law
As per The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, Chapter 11, a constitutional right to a trial within a reasonable time is mandated within section 11(b) of the Charter of Rights and Freedoms which reads:
Proceedings in criminal and penal matters
11 Any person charged with an offence has the right ...
(b) to be tried within a reasonable time;
The section 11(b) right prescribed within the Charter of Rights and Freedoms is a sanctity within Canadian law and was the focus of review by the Supreme Court within the case of R. v. Jordan, [2016] 1 S.C.R. 631, which addressed concerns for unreasonable delays within criminal proceedings, among other cases, as was, or appeared as, commonly occurring within the justice system.
When a case is stayed due to an unreasonable delay, the general public and media often criticize the justice system as well as the Charter of Rights and Freedoms, for allowing a crime or an offence to go unpunished. A common attitude sometimes arises that a technicality is providing a free pass to an accused person. When such a circumstance arises, it is important that the general public, and the victim of the alleged crime or offence, recognize that the justice system process caused the delay and thus the law within the Charter of Rights and Freedoms should be without blame. It is important to bear in mind that a person accused of a crime or offence, including the family of such a person, may be, and often is, gravely impacted by the charge and unreasonable delay in receiving a trial may be highly prejudicial to the ability to experience a fair trial and the right of presumed innocence.
In the Jordan case, after conducting a review regarding delay concerns and the mandate imposed by the Charter of Rights and Freedoms, the Supreme Court established timing boundaries for cases proceeding as charges within the Superior Court system or as charges within the Provincial Court system whereas it was said:
[46] At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).
[47] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.
[48] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.
Also see the cases of:
- Halton (Regional Municipality) v. Grewal, 2024 ONCJ 470
- R. v. Dossa, 2023 ONCJ 570
- R. v. J.F., 2022 SCC 17 (CanLII), 2022 SCJ 17 at paragraph 23 and paragraph 27
- R. v. Cody, 2017 SCC 31 at paragraph 20 to paragraph 25
- R. v. Coulter, 2016 ONCA 704 at paragraph 34 to paragraph 41
As below, CBC News provides an interesting investigative report regarding the section 11(b) rights including Jordan principles and the general public concern that court cases be heard within a reasonable time to ensure that matters, especially serious criminal matters, are addressed rather than stayed due to perceived technicalities.
Conclusion
A person charged with a crime or an offence is provided the right to a Trial within a reasonable time per the Charter of Rights and Freedoms. Per the Supreme Court as decided within the Jordan case, a criminal case proceeding within the Superior Court system must, with few exceptions, be heard within thirty (30) months and an provincial offences case proceeding within the Provincial Court system must, with few exceptions, be heard within eighteen (18) months. Upon a failure to adhere to these timelines, the proceeding should be stayed without a Trial of the accused person.
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