Tackling the Technical with Tekenos-Levy: Section 11(b) of the Canadian Charter of Rights and Freedoms.

By: Jordan Tekenos-Levy, Barrister & Solicitor

You may have heard that if your matter has not been tried within a reasonable time, there is a possibility that it could be stayed. If your charge is stayed, in effect, it has been halted from continuing along the usual legal process in a trial proceeding.  A stay is not a withdrawal. A stay of proceedings could be lifted if new evidence arises or subsequent events change the prosecution’s stance on the matter. In my view, once a matter is stayed it would be uncommon for the charges to be revived by the Crown Attorney.

To be granted a stay of proceedings based on your matter not being tried within a reasonable  time, your matter needs to have lapsed past a certain presumptive ceiling (i.e., a length of time that is deemed unreasonable in law). The case that establishes the benchmarks (i.e., the presumptive ceilings) for unreasonable delay is R v Jordan 2016 SCC 27.

For matters at the provincial court level, from the charge to the end of the trial, the presumptive ceiling is 18 months. Put another way, if your trial has not ended after 18 months, it is presumed to have not been tried within a reasonable time. If your matter is tried at the provincial court level but included a preliminary hearing, or if it is tried at the Superior Court level, than the presumptive ceiling is 30 months. If you want to take issue with delay in your case although the delay has not yet reached one of the presumptive ceilings, you may do so. The onus would then be on you to establish that the delay, even though below the presumptive ceiling, was unreasonable.

The establishment of the delay would be tried in court at what is colloquially known as an “11B Application” (denoting S. 11(b) of the Charter of Rights and Freedoms). If a presumptive ceiling is met, in order for the Crown Attorney to establish that the delay was reasonable, the Crown would need to argue that the delay was: i) attributable to defence delay, ii) unavoidable based on a discrete event, or iii) based on a particularly complex trial involving a massive amount of trial/prep time.

If you are concerned about delay in your case, feel free to call 613-531-9099 to setup a free 30-minute consultation.