This article is one of two articles on the complexity and nuances of s. 11(b). This article addresses the practical challenges associated with bringing an s. 11(b) motion. The other article (here) addresses the sentencing period and the conflicting case law surrounding it.
If you sit in any administrative or “To Be Spoken To” court for a morning, you will doubtlessly hear the Crown ask – “Do you agree to waive section 11(b)?”. This is most often heard in response to defence counsel requesting to adjourn a matter to a later date.
Section 11(b) of the Charter of Rights and Freedoms states that “any person charged with an offence has the right to be tried within a reasonable time”. This is colloquially known as an accused’s right to a “speedy trial”.
Without entering into an in-depth discussion of the historical case law of associated with s. 11(b), or analyzing the new changes, it is important to note that R. v. Jordan has updated the approach by setting stricter boundaries for delay. Prior to Jordan, the leading case was R. v. Morin which required the Court to balance four factors in determining if there was a breach of s. 11(b). These factors were comprised of:
- The length of the delay;
- Defence waiver;
- The reasons for the delay, including –
- The inherent needs of the case,
- Defence delay,
- Crown delay,
- Institutional deal,
- Other reasons for delay; and
- Prejudice against the accused’s interests in liberty, security of the person, and a fair trial.
These factors created unpredictability and were often criticized for being too flexible as they could be interpreted any which way. In 2016, Jordan set stricter boundaries and presumptive ceilings – namely 18 months in provincial courts from charge to the end of trial and 30 months for Superior Court (or cases tried in provincial courts after a preliminary inquiry).
Intuitively, this should make s. 11(b) motions more prevalent as they roadmap to a successful motion is more fleshed out and theoretically more successful. There’s only one four letter word standing in the way – COST.
To bring as s. 11(b) motion, there must be a systemic delay. The entire premise of the motion is that the proceedings have dragged out too long and the Crown has failed to bring the case to trial within a reasonable time. This overextended timeline is riddled with constant administrative appearances once or twice a month by defence counsel who slowly build a record of the delay. These appearances alone cost a client money. Even the best day in Court involves travel to the courthouse for a 9:00 AM matter, signing up on the list, speaking to the matter early to request outstanding disclosure or setting the next step – such as a pre-trial and returning to the office.
On the worst day, the matter is scheduled for the 10:00AM docket, 9:00AM matters (often video bail hearings) started late and are still being dealt with. Once they’re completed, the Court goes on the morning break. Upon returning, other matters are heard before yours and the physical Information (the log of all appearances and charges) is misplaced and you have to hold your matter down until it’s found. By the time it’s found, it’s almost 1:00PM and you still need to return to the office. Defence counsel often describe this culture of delay as – “hurry up and wait.”
Rinse and repeat this at least a dozen or so times before you move onto the next cost of ordering transcripts. Every time a lawyer appears in court, the exchange between the Crown, Defence, and the Judge (or more often Justice of the Peace) is recorded. Audio of these exchanges are ordered from an independent source after being transcribed. The cost of these transcripts depends on the number and length of appearances. A conservative estimate, if there is no preliminary hearing or mistrial, would be approximately $1,000 or more.
Once counsel has received the transcripts, they analyze them to create a timeline to demonstrate that the time that passed is an unreasonable delay. If a case started before Jordan, it may fall into a secondary framework as a “transitional case” and requires a more in-depth analysis as is currently a changing and underdeveloped area of law. All of this takes time and research to carefully draft materials to be filed with the Court, 30 days before the motion.
Between the filing of the materials and arguing the motion, counsel will spend more time preparing. On the day of the motion, both the Crown and Defence will make oral submissions, in conjunction with the earlier written materials, to persuade the Bench that the delay has been unreasonable and the case should be dismissed.
The time that is necessary to prepare written and oral submissions for each s. 11(b) motion is time consuming and heavily dependent on case law as this area of law is malleable and under constant transformation. All of these steps, and their proper preparation, cost time and money for a motion which cannot guarantee favorable results.
Many accused persons, suffer penalties that are less obvious to the Court. These consequences include loss of reputation and status in the community or among friends, stress in family life or upon a marriage and other relationships, mental taxation, and sometimes even loss of employment or future employment opportunities. Stringent bail conditions such as curfews or loss of a driver’s license are especially strenuous as many people don’t work 9-5 hours. If they do, they often have to drive to a place of employment that is not accessible by transit. All of these penalties have a price tag attached to them for every day, month, or oftentimes a year or more. All of this punishes a presumptively innocent party while they wait for trial. A plea could mitigate these costs, but it is an unfair incentive visited on the accused who is desperately funding a defence at their own financial and psychological cost.
These invisible costs don’t need to remain so, however. While they may be unavoidable, one can submit an Affidavit of Prejudice to the Court within the written materials. This gives counsel an opportunity to tell a client’s story and the impact that the excessive proceedings have had upon his or her life in seeking a Stay of Proceedings.
There are a multitude of changes to the criminal justice system that could make it more efficient – but they don’t need to be discussed here. Many of these changes could make the road to an 11(b) motion more efficient. Alternatively, and more preferably, however, these changes could reduce the wait time so an accused’s Charter rights aren’t brought into question. In this idealistic world, s. 11(b) never comes into play and both the visible and invisible costs are mitigated or avoided before they even occur.