New Provincial Practice Direction: s. 11(b) Charter Applications

Written on Behalf of Affleck & Barrison LLP

The Ontario Superior Court of Justice has announced a new practice direction governing applications requesting a stay of proceedings due to unreasonable delay under s. 11(b) of the Charter.

This development was driven by the Supreme Court of Canada’s (SCC’s) recent decision in R. v. Jordan. In that decision, the SCC established a new framework for s. 11(b) applications, and provided guidance on how to apply that framework to any decisions that were already in the system prior to July 8, 2016 (i.e- the date of the Jordan decision).

Ontario Superior Court of Justice’s New Practice Direction

The new practice direction:

  • Clarifies what supporting materials are required for s. 11(b) applications;
  • Requires that all s. 11(b) applications be heard well in advance of the trial.

The guidelines in the practice direction are also subject to any order made by a presiding judge during a proceeding.

What is a s. 11(b) Application?

s. 11(b) of the Canadian Charter of Rights and Freedoms guarantees that “[a]ny person charged with an offence has the right…(b) to be tried within a reasonable time…”

The SCC previously explained the purpose of s. 11(b) in their seminal decision in R.v. Morin:

The primary purpose of s. 11(b) is the protection of the individual rights of accused persons: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial.  The right to security of the person is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings.  The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre‑trial incarceration and restrictive bail conditions.  The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

The Charter also provides for an enforcement mechanism under s. 24(1) which states that “[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”.

As a result of ss.11(b) and 24(1), anyone who feels that their right to trial within a reasonable time has been violated or denied, can make an application to the court prior to their trial date, indicating their intention to argue unconstitutional delay.

Evidence supporting an alleged delay can be introduced through filing transcripts from previous court appearances, affidavits from the accused and/or other individuals with relevant information, or through an agreed statement of facts.

Under the new framework outlined in the Jordan decision, courts hearing s. 11(b) applications will consider a number of factors to determine whether or not an accused’s right to a trial within a reasonable period of time has been violated:

  1. The overall period between the charge and the completion of the trial;
  2. How long a case of this nature should take;
  3. How much of the delay is attributable to the Crown (prosecution) and how much is attributable to the accused;
  4. Whether the period of time that is attributable to the Crown exceeds how long the trial should take by more than can be justified on any acceptable basis.

At the crux of this new framework is a “presumptive ceiling” on the time it ought to take to bring an accused person to trial. According to the SCC, this ceiling should be 18 months for cases going to trial in a provincial court, and 30 months for cases going to trial in a superior court.

If the court dismisses a s. 11(b) application, the original matter proceeds to its scheduled trial date. If the court allows a s. 11(b) application, a stay of proceedings will be granted, and the original trial will no longer proceed.

Purpose of the New Practice Direction

The new practice direction requires that s. 11(b) applications be heard at least 60 days prior to a scheduled trial. In most cases, this means a decision about the application will be made before the deadline by which the parties must file and serve other pre-trial materials, and will allow the parties to organize resources more effectively.

If the s. 11(b) application is dismissed, the parties will have to be ready to proceed with their scheduled trial date.  However, if the s. 11(b) application is allowed, and a stay is granted, the court and the parties will all know in advance that they will have additional time that would have otherwise been spent in the originally scheduled trial. Additionally, they will be spared the time and expense necessary to prepare for trial.

This development is a positive step forward to ensuring that Ontario’s justice system is fair, court resources are managed efficiently, and the rights of an accused are respected.

To speak with an experienced criminal defence lawyer about your rights, please contact Affleck & Barrison online or at 905-404-1947.