Patrick J Ducharme

There is a residual discretion in a trial court Judge to stay proceedings when compelling an accused to stand trial would violate those fundamental principles of Justice that underlie the community’s sense of fair play and decency, and to prevent an abuse of the court’s process through oppressive or vexatious proceedings.6 It is a power, however, of special application that can only be exercised in the clearest of cases.7 An example of a potentially successful application would be a finding by the court that delay, caused by the actions of the Crown, was for an ulterior motive, such as, depriving the accused the opportunity to make full answer and defence.
Continue reading “Statutory Limitations (Part 2)”

Summary conviction proceedings generally cannot be instituted more than six months after the time when the subject matter of the proceedings arose, unless otherwise expressly provided by statute. On occasion, the subject matter may be found by a court to have continued or partially taken place within this six-month period thereby allowing a court to proceed to consider the portion that is within the limitation period. Further, subsection 786(2) provides that summary conviction proceedings may be instituted after the time limitation has elapsed if both the Crown and the accused agree. Waiver of the limitation period is sometimes agreed to by the defendant in order to accept an offer to plead guilty to a lesser charge that would otherwise be statute-barred.
Continue reading “Statutory Limitations”

(…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.

Continue reading “Delay Under Morin (Part 4)”

(…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.

Continue reading “Delay Under Morin (Part 3)”

(Continued from part 1)

A judicial pre-trial conference in the Superior Court was also adjourned because the assigned Crown was not present. The primary complaints of the accused were that the preliminary hearing was re-scheduled twice and took place almost five months after it was originally scheduled and the trial took place over a year after it was originally scheduled. What follows are some of the interesting comments by the Court of Appeal for Ontario concerning delay applications in the province of Ontario:

Continue reading “Delay Under Morin (Part 2)”

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:

Continue reading “Delay Under the Morin Framework”

The court also dealt with cases that were in the system prior to July 8, 2016. For these cases the court adopted a contextual application of the new framework. In doing so, the court said it was attempting to avoid a repetition of the post-Askov1 debacle that caused the tens of thousands of criminal charges to be stayed as a result of a similar abrupt change to the law of delay. For cases in the system before this decision, the new framework applies, subject to two qualifications:

Continue reading “Transitional Cases”

Applications for Stay of Proceedings Based on ss. 11(b) of the Charter

On July 8, 2016, the Supreme Court of Canada decided that the framework for deciding delay in criminal cases outlined previously by the court in R. v. Morin1 had caused doctrinal and practical problems contributing to a culture of delay and complacency rather than ameliorating delay. In a 5-4 decision the majority decided in R. v. Jordan2 and R. v. Williamson3 that in the future a subsection 11(b) analysis of delay should encourage all participants in the criminal Justice system to cooperate in achieving the important objectives of the provision.
To assist in removing the culture of delay and complacency toward speedy trials, the majority decided on a new framework for analyzing delay that includes a presumptive ceiling beyond which delay – from the charge to the actual or anticipated end of the trial – is presumed to be unreasonable, unless exceptional circumstances exist justifying it. The presumptive ceiling is eighteen months for cases tried in the provincial court, and, thirty months for cases in the Superior Court, including cases tried in the provincial court after a preliminary inquiry.

Continue reading “The New Approach to Delay Applications”

Proceeding with an indictable offence is not usually limited by the passage of time. There are some indictable offences that prescribe statutory limitations. The offence of treason is a good example. Section 48 of the Code prohibits proceeding against an accused person on the charge of treason beyond three years from the time when the offence is alleged to have been committed. With most indictable offences, however, there is no limitation period.

Continue reading “Limitation Periods”

When a person is convicted or is discharged on the conditions prescribed in a probation order pursuant to a suspended sentence (s. 731) or probation pursuant to a conditional discharge (s. 730) for certain specified sexual offences outlined in section 161 of the Code related to a victim who is under the age of sixteen years, in addition to any other “punishment” that may be imposed the court may order that the accused not attend near certain public places and other facilities where persons under 16 years of age may be present.
Continue reading “Section 161 Orders of Prohibition”