(…continued from part 2)
Subsection 11(b) is limited to criminal or quasi-criminal proceedings or proceedings giving rise to penal consequences. The offence should lead to a true penal consequence in order to apply this constitutional limitation on delay. One classification of offences involves matters of a public nature, those intended to promote public order. Those matters are distinguished from private, domestic or disciplinary matters that are regulatory, protective or corrective and are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct in a private sphere of activity.
All prosecutions for criminal offences under the Code or for quasi-criminal offences under provincial legislation are automatically subject to subsection 11(b) scrutiny. However, even a private, domestic or disciplinary matter may come within this section if it involves the imposition of true penal consequences, namely, imprisonment, loss of livelihood or a fine.9 Police officers, doctors, accountants and lawyers subject to disciplinary proceedings facing true penal consequences are good examples of disciplinary matters that are subject to an application to stay proceedings for delay under subsection 11(b).
Delay on appeal is not considered. The period to be scrutinized is the time from the date of the charge to the “anticipated” end of the trial.10 Pre-charge delay may have an impact on the overall determination as to whether post-charge delay is unreasonable but is not counted in determining the length of the delay. If the length of the delay is not exceptional, no inquiry is warranted and no explanation for the delay is called for unless the accused is able to raise the issue of reasonableness of the period by reference to other factors such as prejudice to the accused.
If the length of delay is exceptional an inquiry into the reasons for the delay is required. The court will first consider whether the accused has waived, in whole or in part, her right to complain of the delay. A waiver must be clear and unequivocal, with full knowledge of the rights that 11(b) was enacted to protect and of the effect that one’s waiver will have on those rights.
If the application by the accused is not resolved by reason of waiver, the court will then consider other explanations for the delay. This includes consideration of the inherent time requirements that inevitably lead to delay. The more complex the trial, the more time will be needed to prepare for trial and for the trial to be conducted once it begins. These are inherent requirements that are generally accepted by our courts. This includes the retention of counsel, bail hearings, police and administrative paperwork, and providing disclosure. Another inherent delay is whether the case proceeds through a preliminary inquiry. The court focuses on actions of the accused and the actions of the Crown.
The court must also consider any limits on institutional resources. The time period under scrutiny here is the period from when the parties are ready for trial but the system cannot accommodate them. While account must be taken of the fact that the state does not have unlimited financial resources, the court cannot simply accede to the government’s allocation of resources and tailor the period of permissible delay to meet the government’s financial commitment to the Justice system. The court will not tolerate delay based on inadequate resources. The unique circumstances within a particular jurisdiction may place a sudden and temporary strain on resources and will be taken into account in considering resources.
It is appropriate now to suggest a period of institutional delay of between eight to ten months as a guide to provincial courts. In regards to institutional delay after committal for trial, the range should be an additional six to eight months. The court may also consider the actions by the trial Judge as it relates to delay.
(continued in part 4…)
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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