UnReasonable Delay

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UnReasonable Delay
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Section 11(b) of the Charter of Rights Freedoms
guarantees the right to be tried within a
reasonable time. The purpose of this right is to
ensure accused parties are not subject to
lengthy procedural delays. Justice Moldaver of
the Supreme Court of Canada explained in R v.
Jordan that maintaining S. 11(b) rights ensures
that the system functions in a fair and efficient
manner, and ultimately, furthers the interests
of justice. The Supreme Court of Canada set out
a new framework in R. v Jordan, for evaluating
the net time it takes for a case to proceed
through the courts. Cases that exceed the
presumptive ceiling without justification result
in an unreasonable delay, and as a result, a
violation of the respective individuals section
11(b) rights. This new framework ensures some
degree of certainty in managing the partys
expectations regarding the duration of the
process. Many legal commentators say that this
new framework ensures cooperation between the
courts, and counsel to ensure the protection of
an accuseds section 11(b) rights, and further,
minimizes the culture of complacency regarding
delay within the system. There are tools
available to ensure there is no unreasonable
delay, for example case management Crowns and
or Judges may be appointed, or special
disclosure teams or trial teams can be
assigned. Presumptive ceilings are a
measurement of time the court has deemed an
appropriate amount of time for a matter to
proceed through the courts. The clock starts
running on the date the information is sworn in
court (the start date). The Net Time is the
calculation between the start date and the
anticipated conclusion of the trial. For
Provincial matters, the presumptive ceiling is 18
months, and for Superior Court matters the
ceiling is 30 months. Defence delay will be
subtracted from the Net Time calculation.
Legitimate actions by the defence will not count
as delay, such as waiting for essential core
disclosure and ensuring adequate preparation
time. The defence can be responsible for the
delay in two situations (1) where defence waives
delay, either a partial or full wavier, and (2)
delay that is caused solely by the conduct of the
defence. Examples of defence delay include
bringing frivolous applications, and a lack of
due diligence in making timely disclosure
requests.
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If the net time is under the presumptive ceiling,
the defence has the responsibility of
demonstrating the delay was unreasonable. If the
time exceeds the presumptive ceiling, the Crown
must establish that there was an exceptional
circumstance(s) that led to the delay. If the
net time for a delay falls below the presumptive
ceiling, the defence is responsible to
demonstrate to the court that the delay is
unreasonable by establishing that (1) the
defence took meaningful steps that demonstrate a
sustained effort to expedite proceedings and (2)
the case took markedly longer than it reasonably
should have. If the net time exceeds the
presumptive ceiling in bringing the case to
trial, the Crown is responsible for justifying
why the trial did not occur. The Crown can
justify a delay in one of two ways (1)
unforeseen discrete events, and (2) complexity
of the case. Unforeseen events must be
circumstances beyond the control of the Crown.
Examples of unforeseen events include illness of
a witness, lawyer or the judge, and court
closure. If the crown is unable to justify the
delay the case shall be stayed due to
unreasonable delay. Source https//www.passipat
el.com/unreasonable-delay/ ?
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