(…continued from part 3…)
The final factor, and arguably the most important factor to be considered, is prejudice to the accused. Prejudice may be inferred simply from the length of the delay. The longer the delay, the more likely an inference of unreasonable delay will be drawn. In circumstances where prejudice is not found or inferred, the basis for a remedy of the accused’s rights under 11(b) is seriously undermined. Inferred prejudice, however, is seldom sufficient alone. Actual prejudice is far more powerful to fuel a subsection 11(b) argument.
Our courts are more impressed by evidence of actual prejudice than by inferred prejudice. Actual prejudice is the type that directly impacts on the fairness of the case such as delay that has caused the loss of relevant and admissible evidence. If the accused can establish that his case is compromised because witnesses have died, become too ill to testify or have been injured since the date of the circumstances rendering their evidence less available or compelling, these circumstances are more likely to support a finding that the delay has adversely impacted the accused’s ability to have a fair trial. The court may grant a stay of proceedings because no assurance can be made that the accused will be able to present the evidence that would otherwise have been relevant and admissible but for the delay.
Although the accused generally has the legal burden of establishing a violation of subsection 11(b), an evidentiary burden of putting forth evidence or argument may shift depending on the circumstances of each case. For example, if the Crown alleges on the delay application that the accused has waived his claim to delay for a specific period of time, the burden of establishing that that waiver was clear and unequivocal will rest with the Crown. A court should be mindful that it is seldom necessary or desirable to decide this question solely on the basis of the burdens of proof. It is only upon a careful weighing and balancing of all the factors the court can fairly decide 11(b) applications.
The commencement date for measuring delay is the date on which an information is sworn or an indictment is preferred. Pre-charge delay may, in certain circumstances, have an influence on the overall determination as to whether post-charge delay is unreasonable, but of itself, pre-charge delay is not counted in determining the length of the delay. Delay for the purposes of subsection 11(b) begins when the charge is laid.
In order for an accused to waive her rights under subsection 11(b), the waiver must be clear and unequivocal. This means the waiver is made with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights. Consent to a trial date may give rise to an inference of waiver. This will not be so, however, if consent to a date amounts to mere acquiescence to the inevitable.
An inquiry under subsection 11(b) should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness.
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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