According to Section 11(b) of the Canadian Charter of Rights and Freedoms “Any person charged with an offence has the right…to be tried within a reasonable time.” It is essentially up to the Courts to decide on a case by case basis what constitutes as a reasonable time for trial but, this does not apply if the defence is responsible for the delays.
When trials are put off, or if their matters are not heard in time, there is much scrutiny from the public as they feel justice is not being served. Delays also make it extremely difficult on the accused and their family members and prolonged court proceedings can have long lasting affects on an accused. The Supreme Court in R v. Jordan reiterated “An unreasonable delay denies justice to the accused, victims, and their families, and the public as a whole.”
The Supreme Court laid down the law as follows in terms of holding trials within a reasonable period of time. For Provincial court, trials should commence within 18 months from the time charges are laid and 30 months for cases in Superior Court. If delays exceed the 18 or the 30-month ceiling, it is presumptively unreasonable and the case may be indefinitely stayed as a result of unreasonable delay. The test for infringement was set out in the R v. Jordan case. “Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, a stay of proceedings will follow.” (R v. Jordan at paragraph 6).
What does this mean for clients whose cases are in either Provincial or Superior Court?:
Jordan means that if your case takes endlessly long and your case in either court is not tried within the 18 or 30 month mark, your lawyer could ask for a stay of the case. On the other hand, sometimes delays are inevitable. Delays can be because of defense requests to delay the matter. For example, the defense counsel may need additional time to discuss with the client; or to obtain new information on the case or similar reasons.
In such cases, defense will request a waiver of delay under section 11(b) of the Charter thus conveying to the Court and to the Crown that defense will not invoke a Jordan-related delay accusation at a later stage solely caused by defense requests to delay. Such defense requests are generally accepted by the Court and by the Crown as long as there is a legitimate request for delay.
The key point is that the Crown should not delay the holding of the trial. In Superior Court, sometimes, a client may be in custody for a lengthy period of time of up to 24 months before the trial is held. The client often feels tremendous frustration at the lengthy delay. But, Jordan provides that it should be 30 months from time of laying charges for the trial to be held. As a result, it is possible that a client may complete the sentence that the Crown wants even before the trial starts – thus resulting in only a guilty plea and no trial actually being held! Keep in mind that time spent in pre-custodial time prior to sentencing counts as 1.5 times the amount of time that a person would spend in jail post-conviction.
If you’ve been charged with a criminal offence and need a lawyer who knows your rights, please, contact Shankar Law Office, in Port Elgin or in Owen Sound. We proudly serve Grey and Bruce Counties and specially the cities of Owen Sound, Port Elgin, Southampton, Goderich, Wiarton, Durham, Hanover, Markdale, Meaford and Kincardine, among others.