Under section 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”), anyone who has been charged with a criminal offence has the right to be tried within a reasonable time. So, what constitutes “a reasonable time” and what can happen if an accused is not tried within this time?
This article considers these questions with reference to the recent decision of the Ontario Court of Justice in R. v M.A. In this case, the accused was found guilty of various crimes in August 2021, the charges for which arose out of information provided in September 2016 and March 2020. Prior to sentencing, the accused sought to have the convictions pertaining to the older charges overturned due to the failure to be tried within a reasonable time.
Why is there a right to be tried within a reasonable time?
Excessive delays in the legal system are inconsistent with the principle that people are to be presumed innocent in a way that protects their interests in liberty, security of the person and a fair trial. This is because while an accused is awaiting trial, they may spend time in pre-trial custody or living under release conditions, they may experience stress, stigma and anxiety, and further, they may be prejudiced in mounting their defence.
As a result, section 11(b) of the Charter requires those who have been accused of a crime to be tried within a reasonable time.
What does the right to be tried within a reasonable time entail?
In 2016, the majority of the Supreme Court of Canada in the case of R. v Jordan set out a new framework interpreting this right.
The Court decided that a delay which goes beyond a “presumptive ceiling” is deemed to be unreasonable unless the Crown can prove the existence of exceptional circumstances. If the Crown cannot do this, the convictions are set aside and the proceedings are stayed. This can be roughly compared to an acquittal.
The Court also said that if the delay is less than the presumptive ceiling, the onus is on the defence to show that the delay was unreasonable. This only happens on rare occasions when the defence can prove that it took meaningful steps to expedite the proceedings and that the case took markedly longer than it reasonably should have.
How long is “a reasonable time”?
In R. v Jordan, the Court defined the “presumptive ceiling” as follows:
- For trials in the provincial court, a reasonable time is 18 months from the date of the charge to the actual or anticipated end of trial.
- For trials in the superior court (or in the provincial court after a preliminary inquiry), a reasonable time is 30 months from the date of the charge to the actual or anticipated end of trial.
The Court also explained that delay attributable to the defence is not included in this time limit.
Accused was convicted of various offences following a delay in being arrested
In the recent decision of R. v M.A., the accused was convicted of several crimes committed against his wife.
A first set of charges for assault, unlawful confinement and obstruction of justice, arose out of the information provided in September 2016. A warrant for his arrest was issued simultaneously, but the accused lived in Saudi Arabia and was not arrested until August 2019 when he sought to enter Canada. This was despite the fact he had entered Canada four times as a visitor between these dates.
The second set of charges for assault and sexual assault arose out of information provided in March 2020.
After the trial ended in June 2021, the accused was convicted of the offences in August 2021. The accused subsequently sought to have the convictions set aside and the charges stayed. Regarding the first set of charges, he argued that he had been denied the right to be tried within a reasonable time.
Accused argued that clock started when information was provided and that time overseas was not deducted
The accused argued that the clock started to tick from the time the information was provided and not when he was arrested. He also claimed that his absence from Canada did not qualify as an exceptional circumstance that could justify a longer period of time than the presumptive ceiling.
The Crown contended that the reasonable time period started when the accused was arrested and that the COVID-19 pandemic caused the additional delay.
Court decided clock started when information was provided
Justice Silverstein noted that an 18-month presumptive ceiling applied to this case as the trial would be held in the provincial court.
His Honour noted that prior court decisions differed on whether the delay should be calculated from the date the information leading to the charges was sworn or the date of the arrest. He preferred the view that the clock starts to tick with the swearing of the information, which meant that the delay was almost six years.
His Honour decided that this was presumptively unreasonable, even if deducting a generous timeframe to account for the pandemic.
Defence not responsible for delay and no exceptional circumstances meant that the charges were stayed
Justice Silverstein decided that the defendant was not responsible for the delay. The accused had not evaded justice, having had no idea of the charges until his arrest. His Honour also determined that the Crown had not proven exceptional circumstances because it had not taken reasonable steps to mitigate the delay. The police had the accused’s phone number but did not call him; nor did they reach out to the intelligence division of the Canada Border Services Agency.
As a result, his Honour stayed the charges that were based on the September 2016 information because the accused’s right to be tried within a reasonable time had been violated.
Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Help, Including with Domestic Assault Charges
The criminal defence lawyers at Barrison Law strongly believe that the criminal justice system must be fair to those who have been accused of committing crimes, including assault, domestic assault and weapons charges. If you live in the Durham region and need assistance with a criminal offence charge, please call us at 905-404-1947 or contact us online.