Published On: Jul 18,2016
Section 11(b) of the Charter: A three (3) year delay in proceeding with a criminal trial leads to a stay of proceedings, resulting in all charges against an accused being dismissed. [June 30, 2016]
The Supreme Court of Canada recently decided and added it’s line of case-law on the subject of the right to have a trial within a reasonable period of time in Reginav.Vassell, 2016 SCC 26 [Vassell]. This case considered Section 11(b) of the Charter, infra. Prior to the Vassell decision, Regina v. Morin,  1 S.C.R. 771 (“Morin”) andRegina. v. Godin,  S.C.J. No. 26,  2 S.C.R. 3 (“Godin”), arguably, served as the proverbial yardstick for Courts, Crown Prosecutors and Criminal Lawyers practicing in the fields of all ranges of Criminal Code of Canada offences ranging from TSA Speeding tickets, theft charges, sexual assault, fraud to murder to rendering an assessment as to what would violate a defendant’s right to have a trial without a reasonable period of time.
The General Meaning of Section 11(b) of the Charter
Section 11(b) of the Charter of Rights and Freedoms guarantees that any person charged with an offense has the right to be tried within a reasonable amount of time. The primary purpose of section 11(b) is to protect the individual rights of the accused. Section 11(b) has a secondary function of protecting related societal interests.The individual rights that section 11(b) seeks to protect are: 1) the right to security of the person, 2) the right to liberty and 3) the right to a fair trial. As the Court in Morin explained, these rights are protected by section 11(b) in the following manner:
- The right to security of the person is protected by section 11(b) 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; and
- The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is fresh and available.
Section 11(b) also addresses larger societal interests. These were described by the Court in Morin, infra,
- Society has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly;
- Trials held promptly enjoy the confidence of the public and have an intrinsic benefit to society as a whole; and
- There is “a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to law.”
In general terms, R. v. Godin
is the most recent pronouncement from the Supreme Court of Canada on the issue of unreasonable delay. In Godin
, the Court considered the body of case law on the subject (particularly its decision in Morin
) and summarized the nature of the section 11(b) analysis in the following manner:
[w]hether delay is unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence and then by taking into account the reasons for the delay, the prejudice to the accused and the interests that s. 11(b) seeks to protect.
The factors that must be considered in analyzing how long of a delay is “too long” are as follows:
The significance of Reginav.Vassell, 2016 SCC 26
- The length of the delay;
- Waiver of time periods;
- The reasons for the delay, including:
- Inherent time requirements of the case;
- Actions of the accused;
- Action of the Crown;
- Limits on institutional resources, and
- Other reasons for delay; and
- Prejudice to the accused.
In my view, the Regina
provides more texture and contour to the existing line of jurisprudence and is in line with the Godin
pedigree of cases. It clarifies, to an extent, the Crown’s role in ensure that an accused persons rights are protected under section 11(b) when dealing with a number of co-accused defendants on the same charge.
Mr. Vassell was charged with six (6) other individuals for possession of cocaine for the purposes of trafficking under the Control Drugs Substances Act. The Crown Prosecutor’s office proceeded, at first instance, against all the co-accused on the same information but eventually only proceeded against Mr. Vassell. Through criminal counsel, the defendant applied for a stay of proceedings under section 11(b) Of the Canadian Charter of Rights and Freedoms
asserting that his right to a fair trial had been violated through, inter alia
, the conduct of the Crown’s carriage of the case. In this case, they found the right to be tried within a reasonable time under s. 11
) of the Canadian Charter of Rights and Freedoms
was infringed. When such an challenge is raised by criminal lawyers under s. 11
), the Courts stated it must be careful not to miss the forest for the trees. In this case, the defendant waited three (3) years for a three-day trial. Significantly, the accuseddid not cause any of the delay. He took proactive steps throughout to have his case tried as soon as possible. Despite his efforts, substantial delay was caused by his co-accused, and the inability of the system to provide earlier dates.The accused’s trial was adjourned twice, and the Crown and the system failed to respond proactively enough to these adjournments to avoid unreasonable delay. In these circumstances, a more proactive stance on the Crown’s part was required. The Court said the following in representative part at para. 7:
“In these circumstances, I believe that a more proactive stance on the Crown’s part was required. In fulfilling its obligation to bring all accused to trial within a reasonable time, the Crown cannot close its eyes to the circumstances of an accused who has done everything possible to move the matter along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates. That, unfortunately, is what occurred here. In the last analysis, Mr. Vassell ended up being the sole person out of the initial seven co-accused to be tried. To repeat the words of O’Ferrall J.A., he “waited three years for a three-day trial”. That is unacceptable, and it resulted in Mr. Vassell being deprived of his right to be tried within a reasonable time.”
The Crown chose to prosecute all seven accused jointly, as it was entitled to do. But having done so, it was required to remain vigilant that its decision not compromise their s. 11
) rights as per the cases of Regina v. Auclair, 2014 SCC 6
,  1 S.C.R. 83, and Regina v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 146
case demonstrates the importance of immediately taking, without delay, all reasonable and lawful steps to ensure that your Charter rights under section 11(b) are protected at the various junctures of the criminal proceedings. This would assist in ensuring that a viable (and in some cases only) defence is available to avoid the imposition of significant jail term or the entry of a criminal conviction. It appears in this case, Mr. Vassell’spivotal criminal defence was ensuring, through a criminal lawyer, that he was diligent from the onset of the charges. This likely meant ensure that the most strategic and Charter
compliant representations were made in Court prior to the onset of the trial. This case demonstrates that Section 11(b) remains a powerful defence remedy.
If you have been charged with a Criminal offence, call 403-585-1960
and request to speak to Mr. J.S. Patel, Barrister for a free initial consultation.