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Section 11(b) of the Canadian Charter of Rights and Freedoms states:
11. Proceedings in criminal and penal matters – Any person charged with an offence has the right
b) to be tried within a reasonable time;
The primary purpose of sec. 11(b) is to protect the individual rights of an accused person from. More specifically, the rights that are protected are: (1) security of the person, (2) the right to liberty, and (3) the right to a fair trial. The right to security of the person is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from things like pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh; meaning, that witnesses are still alive or still competent to testify, and that their recollection of the facts in question is still strong.
There is also, however, a secondary interest, which is that of society as a whole. This interest is most obvious when it parallels that of the accused. Meaning, society as a whole has an interest in seeing that citizens who are accused of crimes are treated humanely and fairly. There is, as well, a societal interest that is by its very nature adverse to the interests of the accused: there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the merits of their case.
The leading Canadian cases that deal with an unreasonable delay in getting to trail are R v. Askov and R v. Morin. In Morin, the Supreme Court of Canada held that the general approach to a determination of whether the sec. 11(b) right has been denied is not achieved by applying a mathematical or administrative formula, but rather by a judicial determination balancing the interests which the section is designed to protect against factors which have led to the delay. The factors to be considered are:
(1) The length of the delay;
(2) Any waiver of time periods by any of the parties to the trial;
(3) The reasons for the delay, including:
(a) The inherent time requirements of the case;
(b) The actions of the accused;
(c) The actions of the Crown;
(d) Any limits on institutional resources; and
(e) Any other pertinent reasons for delay; and
(4) Any prejudice to the accused.
Generally speaking, the period which makes up the delay-analysis is the time elapsed from the date of the charge to the end of the trial. An inquiry into unreasonable delay will only usually take place if the period is of sufficient length to raise an issue as to its reasonableness. As such, a shorter period of delay will raise the issue if the accused can show prejudice, as for example if the accused was in custody prior to his or her trial. Moreover, if by agreement or conduct the accused has waived any part of this time period, the length of the period of delay will be reduced accordingly.
Each type of offence will have its own inherent time requirements, which inevitably lead to some delay. A common example of this sort of delay is the time required by both the defence and the Crown to review and prepare for the trial; the more complex the case, the greater its inherent time requirements. Additionally, all cases are subject to certain intake requirements and some cases must pass through a preliminary inquiry before reaching trial. For example, some cases that start off in Provincial Court, but then move up to Superior Court may go through a preliminary trial, which is held primarily for the purpose of ensuring that there is enough evidence to commit the accused for the charges he faces. The court will also need to consider whether the actions of either the accused or the Crown have led to delay. These latter two factors do not assign "blame" per se, but simply provide a convenient mechanism by which the conduct of the parties may be examined.
In considering the explanation for delay, the limits of institutional resources must be kept in mind. This is known as the “institutional delay” factor. Generally speaking, institutional delay runs from the time the parties are ready for trial and continues until the system can accommodate the proceedings. When assessing this factor, it must be kept in mind that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay. As such, there is a point in time after which the Court will no longer tolerate delay which results from resource limitations. Thus, In Morin, the Supreme Court issued some tentative guidelines regarding how long each case should take in both Provincial and Superior Court: 8-10 months in Provincial Court and an additional 6-8 months if the matter moves up to Superior Court. This guideline, however, is not a limitation period per se, nor does it fix a ceiling on delay. It should not be applied in mechanical fashion but must give-way to other factors when it is appropriate. As an example of when it is appropriate to depart from the guidelines is the existence or non-existence of prejudice. Logically then, the greater the prejudice is, the shorter the acceptable period of institutional delay that will be tolerated by the courts.
Prejudice may come in two forms, however. In addition to actual prejudice (such as pre-trial incarceration and restrictive bail), prejudice may be inferred from the length of the delay itself. The longer the delay, the more likely that such an inference of prejudice will be drawn by the Court. Thus, in cases where neither inferred nor actual prejudice is proved, the basis for the enforcement of the right to be brought to trial in a reasonable time is seriously undermined. In coming to this conclusion, the Supreme Court held that the purpose of the right is to expedite trials and minimize prejudice, and not to avoid trials on the merits.
So the answer to the question of “how long is too long” will depend on a host of factors, the existence of which will depend on the peculiar circumstances of each case.
Keywords: Charter; rights; unreasonable delay; trial within a reasonable time; prejudice; Askov; Morin; legal rights; criminal trial; criminal procedure; criminal proceedings;