Canadian Criminal Procedure and Practice/Delay of Proceedings

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General Principles[edit]

Section 11 of the Canadian Charter entitles a "person charged with an offence ... the right ... to be tried within a reasonable time". Where there is a breach of this right, the available remedy to a court is a stay of proceedings.

The burden is on the applicant to prove a breach of s.11(b) of the Charter.[1] The Crown has the burden of proving any waiver of rights.[2]

The applicant must first establish that the period raises the issue of “reasonableness”. (See R. v. Morin and R. v. Reid) Once reasonableness has been raised, the delay that can be attributed to the applicant or waived by the applicant must be calculated to be subtracted from the overall calculation.

The length of permissible time to have a matter tried cannot be based on the mere passage of time. If it were it would effectively be a judicially created limitation period for criminal offences.[3]

The remaining time must be considered in light of the “interests section 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused”[4]

The suggested elements to consider can be summarized as follows:[5]

[69] From the foregoing review it is possible I think to give a brief summary of all the factors which should be taken into account in considering whether the length of the delay of a trial has been unreasonable.

(i) The Length of the Delay.
The longer the delay, the more difficult it should be for a court to excuse it. Very lengthy delays may be such that they cannot be justified for any reason.
(ii) Explanation for the Delay.
(a) Delays Attributable to the Crown.
Delays attributable to the action of the Crown or officers of the Crown will weigh in favour of the accused. The cases of Rahey and Smith provide examples of such delays.
Complex cases which require longer time for preparation, a greater expenditure of resources by Crown officers, and the longer use of institutional facilities will justify delays longer than those acceptable in simple cases.
(b) Systemic or Institutional Delays.
Delays occasioned by inadequate resources must weigh against the Crown. Institutional delays should be considered in light of the comparative test referred to earlier. The burden of justifying inadequate resources resulting in systemic delays will always fall upon the Crown. There may be a transitional period to allow for a temporary period of lenient treatment of systemic delay.
(c) Delays Attributable to the Accused.
Certain actions of the accused will justify delays. For example, a request for adjournment or delays to retain different counsel.
There may as well be instances where it can be demonstrated by the Crown that the actions of the accused were undertaken for the purposes of delaying the trial.
(iii) Waiver.
If the accused waives his rights by consenting to or concurring in a delay, this must be taken into account. However, for a waiver to be valid it must be informed, unequivocal and freely given. The burden of showing that a waiver should be inferred falls upon the Crown. An example of a waiver or concurrence that could be inferred is the consent by counsel for the accused to a fixed date for trial.
(iv) Prejudice to the Accused.
There is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time. Where the Crown can demonstrate that there was no prejudice to the accused flowing from a delay, then such proof may serve to excuse the delay. It is also open to the accused to call evidence to demonstrate actual prejudice to strengthen his position that he has been prejudiced as a result of the delay.

Section 11(b) does not apply to delays arising from an appeal from conviction.[6]

The court should take into account the societal interests in trying the case on the merits. This generally considers the nature of the allegation.[7]

  1. R v Morin, [1] [1992] 1 SCR 77
  2. R. v. C.S. 1999 CanLII 18948 (NL CA), (1999), 172 Nfld. & P.E.I.R. 175 (N.L.C.A.), at para. 9
    R. v. Buckingham, [2007] N.J. No. 367 (S.C.), at para. 18
  3. R. v. L. (W.K.), [1991] 1 S.C.R. 1091
  4. C. (R.), at para 7. Also see R. v. Qureshi 2004 CanLII 40657, (2004), 190 C.C.C. (3d) 453 (Ont. C.A.) at para 12
  5. Askov 1990 CanLII 45 at para 69;
    R. v. Morin, (1992), 71 C.C.C. (3d) 1 1992 CanLII 89 (SCC)
  6. R v Potvin, 1993 CanLII 113 (SCC), [1993] 2 SCR 880
  7. R. v. Seegmiller, 2004 CanLII 46219 (ON CA)

Length of Delay[edit]

The period that can be considered begins at the laying of the charge and extends until the end of trial.[1] Delay can also apply to the point of sentencing.[2]

Cannot usually take into account events occurring before the charges were laid.[3]

  1. R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594
  2. R. v. MacDougall 1998 CanLII 763 (SCC), (1998), 128 C.C.C. (3d) 483 (S.C.C.)
    R. v. Gallant, 1998 CanLII 764 (SCC), [1998] 3 S.C.R. 80)
  3. R. v. A.K. and A.V. (2005), 195 C.C.C. (3d) 501 (Ont. C.A.) 2005 CanLII 11389 at 162

Reason for Delay[edit]

It is "the ultimate responsibility of moving a case forward rests with the Crown". [1] However, the Crown is not to take responsibility for defence counsel's failings to properly represent the interests of their client.

  1. R. v. Stephen, 2012 ONCA 411 at 7

Intake Period / Pre-Charge Delay[edit]

The intake period refers to the period of time between the beginning of the investigation and the eventual swearing the Information and sending of disclosure to the Crown.

This period can be divided into two types of delay:[1]

  1. delay between the offence occurring and the reporting to police
  2. delay between the reporting of the offence and the police laying a charge

The intake period will vary on the type of charges investigated.

Drinking and driving cases typically have an intake period of roughly two months.[2]

As a general rule, pre-information time is not part of the analysis of s. 11(b).[3] Rather, it can only become an issue where the delay has an impact on the "principles of fundamental justice" under s. 7 of the Charter.[4] Section 7 violations are generally considered only in exceptional circumstances.[5]

It has been suggested that pre-charge delay should only be considered where it affects the right to full answer and defence or otherwise impacts trial fairness.[6]

Significant delays for swearing of the information can be justified where the matter involves complex investigations.[7]

Delays of appeals can only be considered as a s. 7 violation.[8]

For s. 11(b) analysis the clock is not running during the period of "withdrawing of a charge and the laying of a new information".[9]

Where the accused alleges missing or lost evidence arising from pre-charge delay, the accused must establish that the lost evidence (e.g. memories) caused "actual prejudice" by impeding the ability to adequately cross-examine witnesses or call defence witnesses.[10]

The accused must present "actual evidence" of "psychological trauma" from pre-trial delay.[11]

Pre-charge delay in the range of 40 years can breach the right to full answer and defence where it is estalished that there was a "material loss of opportunity to garner evidence" due to key witnesses being dead.[12]

  1. R v A.(S.) 2011 NUCJ 7
  2. R. v. Meisner [2003] O.J. No. 1948 (ONSC)
  3. R v Kalanj, 1989 CanLII 63 (SCC), [1989] 1 SCR 1594
  4. R. v. Stymiest (1993), 79 C.C.C. (3d) 408
  5. R v Young (1984) 13 CCC (3d) 1 (ONCA)
  6. R v Finn (1996) 106 CCC (3d) 43, 1996 CanLII 6632 (NL CA)
    e.g. R v National Steel Car Ltd. 2003 CanLII 30223 (ON CA)
  7. R. v. Kalanj [1989] S.C.J. No. 71: 8 months delay for complicated conspiracy charges
  8. R. v. Potvin , [1993] 2 S.C.R. 880
  9. R. v. R. (G.W.) (1996), 112 C.C.C. (3d) 179 (ONCA)
  10. R. v. R. (G.W.) (1996), 112 C.C.C. (3d) 179 (ONCA)
  11. R v G.(A.D.) 2001 NSCA 28
  12. R. v. Grandjambe (1996), 108 C.C.C. (3d) 338

Re-Scheduling of trial time[edit]

This period of time concerns delay resulting from the inability to finish the trial during the initial time booked.

It is generally expected that incomplete cases will be given priority over other matters in court. Delays due to re-schdeduling of trial time is treated as institutional delay or as part of the inherent time requirements. [1]

  1. R. v. Godin, [2009] S.C.J. No. 26
    R. v. Brace (2010), 261 C.C.C. (3d) 455 at paras. 14-16 (Ont. C.A.)
    R. v. Allen, supra at pp. 347-351; R. v. Satkunanathan 2001 CanLII 24061 (ON CA), (2001), 152 C.C.C. (3d) 321 at paras 43-5 and 54-5 (Ont. C.A.)
    R. v. M. (R.) 2003 CanLII 50092 (ON CA), (2003), 180 C.C.C (3d) 49 at paras. 6-9
    R. v. W. (A.J.) (2009), 257 O.A.C. 11 at paras. 29-43 (ONCA)

Institutional or Systemic Delay[edit]

Institutional delay "runs from the time the parties are ready for trial and continues until the system can accommodate the proceedings."[1]

The Supreme Court in Morin suggested a "guideline of between 8 and 10 months for institutional delay in Provincial Courts."

Inherent Delays
By contrast "inherent delay" are those that are necessary to move a case forward. The more complicated the case the longer the preparation time will be required. In addition, counsel "cannot be expected to devote their time exclusively to one case." The inherent delays are excusable. This is determined on a case by case basis. [2]

  1. R v Morin 1992 CanLII 89 (SCC), [1992] 1 SCR 771
  2. R v Richards, 2012 SKCA 120 (CanLII) at para. 33
    R. v. Morin at pp. 791-2

Accused Caused Delay[edit]

Where delay is largely "attributable to the accused" or defence counsel, a prima facie case of unreasonable delay cannot bemade out.[1]

Defence counsel cannot be expected to be perpetually available.[2]

The accused cannot use adjournment either requested or consented to by defence as weighing in favour of unreasonable delay.[3]

Where delay is contributed to by the defence's use of the preliminary inquiry as a lengthy discovery it cannot be used towards unreasonable delay.[4]

  1. R. v. Morin , [1992] 1 S.C.R. 771
    R. v. Kwok (2002), 164 C.C.C. (3d) 182
  2. R. v. Godin [2009] 2 S.C.R. 3
  3. R. v. Heaslip (1983), 9 C.C.C. (3d) 480 (Ont. C.A.)
    R. v. Deloli (1985), 20 C.C.C. (3d) 153 (Man. C.A.)
  4. R. v. Bazinet (2002), 168 C.C.C. (3d) 344 (BCCA) at para. 21

Waiver of Delay[edit]

A waiver must be clear, unequivocal and with full knowledge of the right being waived.[1]

  1. R. v. White 1998 CanLII 13319 (NL CA), (1998), 160 Nfld. & P.E.I.R. 309 (N.L.C.A.) at para 10 and R. v. Richard, 1996 CanLII 185 (SCC), [1996] 3 S.C.R. 525

Prejudice[edit]

Prejudice is the harm caused to the accused due to the delay in resolving the matter. The more time that passes, the more likely an inference of prejudice [1]

The prejudice must arise out of the delay not simply caused by the charges being laid.[2]

A factor to consider to determine if there is prejudice include whether there has been an impact on accused’s ability to make full answer and defence.

In proving prejudice beyond what can be inferred by the passage of time, it is upon the accused to prove it.In the context of proving actual prejudice beyond that which can be inferred, the burden will be on the accused it. [3]

See also R. v. Atlantic Technologist Ltd. [2008] N.J. No. 54

  1. Morin, 1992 CanLII 89 at para. 63
  2. R. v. Kovacs-Tatar 2004 CanLII 42923
  3. R. v. Sharma, 1992 CanLII 90 (SCC), [1992] 1 S.C.R. 814

See Also[edit]