Subsection 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. A determination whether subsection 11(b) of the Charter has been infringed is not by application of a mathematical or administrative formula, but instead, by a judicial determination, balancing the interests that the section is designed to protect. The factors to be considered are:
a. the length of delay;
b. waiver of the time periods by the accused or Crown;
c. the reasons for the delay, including inherent time requirements of the case;
d. the actions of the accused and the actions of the Crown;
e. limits on institutional resources;
f. other reasons for the delay, and finally;
g. prejudice to the accused.
A person is only charged with an offence within the meaning of section 11 when an information is sworn against him alleging an offence or where a direct indictment is laid against him when no information is sworn. Pre-information delay is not a factor. The Code in subsections. 650(3) and 802(1) protects the right of an accused to make full answer and defence should he be prejudiced by pre-charge delay and other provisions of the Code provide for the prompt swearing of an information. In addition, the doctrine of abuse of process may be invoked in an exceptional case to provide this remedy of last resort that seeks a stay based upon an abuse of the process. In this way pre-charge delay may amount to a factor in considering actual delay, as delay is defined, that is, from the date the charge is laid until the anticipated end of the proceedings.
The Court of Appeal for Ontario provided insights into delay arguments pursuant to subsection 11(b) of the Charter. They did so in R. v. Williamson.2 The accused was found guilty of buggery, indecent assault and gross indecency after a trial with a jury. The numerous sexual acts he was found to have committed related to a boy thirty years before trial. The issue on appeal was whether the trial Judge erred in refusing a stay of proceedings under subsections 11(b) and 24(1) of the Charter.
Although the trial Judge ultimately refused to grant a stay, he was troubled by the fact that the first two preliminary inquiry dates were cancelled and rescheduled. He noted that on each occasion the accused and his lawyer travelled from Ottawa without prior notice that the proceedings would be adjourned.
(continued in part 2…)
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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