11(b) Charter Delay Applications: Getting a Case Thrown Out
In Canada, everyone has a right to trial within a reasonable time, and this means that a case can be thrown out due to unreasonable delay. There are few remedies in the criminal law as extreme as getting a case forcibly stayed without the need for a trial to be run on the merits. The seminal 2016 Supreme Court of Canada case in R. v. Jordan set presumptive ceilings for delay. These ceilings are 18 months and 30 months for cases tried at the Ontario Court of Justice and Superior Court of Justice, respectively.
But the law is far more complex than simply calculating the time of the laying of the charge to the end of trial. Exceptional circumstances, defence delay and under-ceiling stay applications are just a few of the legal issues that can arise in these applications. Within these topics there are sub-issues and complexities that can arise. A lawyer experienced in bringing and arguing delay applications to get cases thrown out will understand how to leverage the existing law to give you the best chance possible to have your case thrown out for a breach of your Charter right to a timely trial. Click here to learn more about the law of 11(b) and unreasonable delay.
At Gold Law, we have experience bringing 11(b) delay applications in myriad situations including those in which delay is over- and under- the presumptive ceilings. See below for some examples of our lawyers’ experience and success getting clients’ criminal charges stayed due to unreasonable delay.
Our Lawyers’ Experience with Delay Applications
R. v. K.A., Ontario Court of Justice, Brampton
Client charged with multiple firearm offences after he was found – and recorded on an officer’s body-worn camera – with a loaded restricted firearm in a satchel on his person. The case stalled when the Crown needed to withhold disclosure pending a ruling from the Superior Court with respect to a potential confidential informant. Despite the argument that the necessary Crown application was a discrete exceptional circumstance, all charges were stayed upon a successful argument of unreasonable delay. The Court even ruled that even if the final calculation left the delay under the presumptive 18-month ceiling, the charges would still be stayed. Result: Charges stayed
R. v. K., et al, Ontario Court of Justice, London
Multiple co-accused information as part of a large-scale project, charged with a marijuana production and trafficking operation. Crown argued for the “particularly complex” exception which allows cases to exceed the Jordan presumptive ceiling. Successful argument by the defence that despite a massive amount of disclosure and up to 80 Crown witnesses, that the Crown could not avail itself of the “particularly complex” exception. Result: Charges stayed
R. v. D.N., Superior Court of Justice, Toronto
Accused faced serious charges of sexual interference and sexual assault. Following adjournments necessitated by judicial unavailability, two 11(b) applications were brought. Despite a Crown argument that some delay was occasioned by the COVID-19 pandemic shutdowns, upon the service and filing of the second delay application, the Crown agreed to withdraw the charges. Result: Charges withdrawn
R. v. S.P., Ontario Court of Justice, Toronto
Client charged with multiple serious charges of sexual interference, sexual assault and exposure to a young person. Accused dismissed his former counsel and our firm was hired. Despite the accused’s action to dismiss his former counsel prior to trial, we filed a delay application taking the position that the ensuing loss of the original trial dates were not the fault of the defence but the Crown due to their lax approach to their disclosure obligations. Upon serving and filing the delay application, the Crown agreed to stay all charges. Result: Charges stayed
