Happy new year to all our readers! We hope everyone had a wonderful and safe holiday season.

For this week’s article, our first of 2012, I’ve chosen to write on a topic that has garnered a bit of media attention as of late—the issue of unreasonable delay in bringing a criminal matter to trial and its consequences. I wanted to shed some light on this phenomenon and what it actually means when a charge is stayed due to unreasonable delay.

Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees that “any person charged with an offence has the right to be tried within a reasonable time.” In R. v. Morin, a 1992 case from the Supreme Court of Canada, the court set out the rights that Section 11(b) seeks to protect. Section 11(b) attempts to protect individual rights, including:

1. The right to security of the person by minimizing the anxiety, concern, and stigma of exposure to criminal proceedings;

2. The right to liberty by minimizing exposure to the restrictions on one’s liberty such as pre-trial incarceration and restrictive bail conditions;

3. The right to a fair trial by attempting to ensure that proceedings take place while evidence is available and fresh.

With respect to societal rights, the court held that society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly.

While the court acknowledged that some delay in any trial is inevitable, the important question is “at what point does the delay become unreasonable?” When an accused person makes an application for a judicial stay of proceedings under Section 11(b), the burden of proving that the delay is unreasonable falls on the accused. There are several factors that a judge looks at when making that determination.

First, what is the length of the delay? Second, did the accused waive his or her right to complain about the delay? Third, what are the reasons for the delay? Fourth, has there been any prejudice suffered by the accused? With respect to the fourth question, the accused can either show that he or she actually suffered some real prejudice (i.e. a witness that they needed for their defence has become unavailable due to the lengthy passage of time) or the court can infer prejudice if the length of time between the charge being approved and the trial date is egregiously long.

Some people may think that accused persons are getting a free “get out of jail card” for having their case thrown out simply because it may have taken too long for a trial but there are extremely important reasons why this charter right should be protected. Justice is not truly served when an accused person’s day in court takes years to materialize. Memory loss occurs for both Crown and defence witnesses. Witnesses that were available earlier may no longer be due to the passage of time for any number of reasons (witnesses may become ill or die, they may move away, et cetera). Accused persons don’t often take detailed notes after an incident as the police are trained to do, meaning events or statements that may be extremely important to their defence will not come to the attention of their lawyer. Physical evidence may be lost—surveillance video that was available shortly after the incident date may be erased before it’s ever acquired. Accused persons who are presumed innocent but are on strict conditions of bail (i.e. reporting to a bail supervisor, house arrest or a curfew, restrictions on where they may go or what items they may possess) will be subject to those limitations on their liberty for years before a trial, where they may be ultimately acquitted.

These applications will be more commonplace as there are fewer prosecutors to run trials, fewer lawyers to defend them (for those individuals unfortunate enough not to qualify for what little legal aid is available), fewer judges to hear them, and fewer sheriffs and court staff to keep the courtroom open and running. And with the new minimum sentences being imposed for a number of criminal offences, the situation will only get worse.

Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at straight.reasonable.doubt@gmail.com.

A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.