How Delays In The Court System May Impact Your Rights

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If you or someone you know has been charged with a criminal offence, you are undoubtedly aware that dealing with criminal charges can be a lengthy process. Delays in the court system often result in accused individuals waiting months or even years to resolve these charges. These prolonged delays can impact the lives of the accused, as well as their friends and family. In many cases, an individual charged with an offence will experience significant restrictions on their rights and liberties. Accused persons may face prohibitions on their ability to drive, restrictions on who they can speak with and where they can live, or even face imprisonment, all while awaiting the conclusion of their charges. Not only are these delays frustrating, but they can result in prejudice to an accused’s case. It is, therefore, important to know what your rights are in relation to getting a trial within a reasonable time and to seek assistance from a lawyer experienced in this area.

Section 11(B) – Your Right To Be Tried Within A Reasonable Time

For a person facing criminal charges, delay can be more than a mere inconvenience. A delay may be a violation of that person’s constitutional rights. Section 11(b) of the Canadian Charter of Rights and Freedoms states that “Any person charged with an offence has the right to be tried within a reasonable time.” The primary question the Courts have looked at regarding s. 11(b) is: When does the delay in bringing a matter to trial become unreasonable?

While a number of cases have considered this question, systemic court delay continues to be a significant problem for accused persons. Recently, the Supreme Court has found that the previous approach to determining the unreasonableness of delay was unpredictable, confusing, and contributed to a culture of delay within the court system. Two Supreme Court decisions in the past year – R v Jordan and R v Cody – have established a new framework for determining whether delay is unreasonable.  

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HOW DELAYS IN THE COURT SYSTEM MAY IMPACT YOUR RIGHTS

An Evolving Area Of Law – The Recent Decisions Of Jordan And Cody

In 2016, the Supreme Court restructured the framework for addressing unreasonable delay in the case of R v Jordan. The Jordan framework provides a clear timeline with which to determine the unreasonableness of a delay. Under this framework, delay is presumed unreasonable after 18 months for cases tried in Provincial Court, or after 30 months for cases tried in superior courts, such as Queen’s Bench in Alberta.

The way the Jordan framework operates is that, after the 18 or 30 months have elapsed, the Crown must prove why the delay is reasonable in the circumstances. Delay caused by the accused or their counsel, and delay resulting from exceptional circumstances, will be subtracted from the total period of delay. For example, if an accused has refused to set a trial date or obtain counsel for 5 months, these 5 months may be subtracted from the total delay.

A year after the Jordan case was released, the Supreme Court reinforced the Jordan framework in the decision of R v Cody. In Cody, the Supreme Court found that delay caused by a lack of court resources cannot be subtracted from total delay, even if this delay originates from defence action. The decision in Cody has been a significant addition to theJordan framework by placing further pressure on the Crown and the court system to reduce lengthy delays in the court system.

Conclusion: What Does This Mean For Your Rights?

Where a court finds there has been unreasonable delay in a case, the remedy is a stay of proceedings. This means that, if an accused’s s. 11(b) rights have been infringed, the court will stop the criminal proceedings against the accused. Any restrictions placed on the accused will be removed.

An application for a stay of proceedings due to a delay in bringing your matter to trial, commonly referred to as a Jordan application, may be raised by your criminal lawyer well in advance of your trial. These applications are becoming increasingly common, as the criminal court system continues to be backlogged. If you or someone you know is facing significant delays in resolving their criminal charges, contact one of our experienced lawyers at Liberty Law to discuss your case.

You can reach a member of our legal team 24 hours a day by calling us toll-free at 1-877-277-4766. We can also be reached by email at info@libertylaw.ca.


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