Many people think that my job involves getting people off on technicalities. Although that is sometimes true, generally speaking the Criminal Code of Canada and the Provincial Offences Act in Ontario are very stingy when it comes to so-called technicalities. More often than not technicalities can be fixed, mistakes can be corrected, and procedural deficiencies can be rectified if there is no meaningful prejudice caused.
When the subject of ‘technicalities’ comes up people often ask me questions about getting their case thrown out for taking too long to go to trial.
First of all, that is not a technicality. This is a real, substantive, right that all people charged with an offence have. They have this right for speeding tickets and they have this right if they stand accused of murder.
The reason this is not a “technicality” is because the right is designed to protect real life interests. Whenever someone is charged with an offence, the weight of the state is upon them. The police, and Crown Attorney’s offices – with virtually unlimited resources – hungrily pursue convictions. Convictions for all offences can cause hardship to people ranging from higher insurance rates and cancelled insurance policies on one hand, to years of jail on the other hand. Merely going through the process of determining guilt or innocence, when such things are at stake, causes an amount of stress and anxiety associated with the ongoing case and the unknown about what is going to happen. Peoples’ reputations suffer. Wages are lost due to time taken off for work or meetings with a lawyer.
It is for this reason that one of our fundamental rights is that where anybody stands accused of breaking the law, the process through which this accusation is made is not supposed to drag on.
Many years ago, two cases were decided by the Supreme Court of Canada – R. v. Askov and R. v. Morin. Those cases set rules as to when charges could be stayed (stopped) and, as a result of those cases, hundreds of cases (thousands if you include traffic court) were thrown out. This has led to the rule — as one colleague described it — becoming “the most hated Charter right in Canada”. The reason it is seen with such suspicion is probably because unlike violations of other rights, where this right is violated, the Courts have concluded that the ONLY remedy is stopping the charges permanently.
Many people do treat this right like a technicality. I have people come into my office on a weekly basis and ask if we can stall the case and delay it for months and then turn around and complain about the delay to get the charge thrown out. I always explain that a very close scrutiny is given to the reasons for the delay if/when we decide to make such a complaint. Transcripts of what was said in Court on each previous Court date must be requested (at the client’s expense, $4.00 per page) and we need to do battle over whether balancing all of the relevant factors should result in the charges being stayed.
The key take-away from what the law has been for decades is that the amount of the delay is, sometimes, merely a footnote. Even where it’s not a footnote, it’s just the starting point. The Court has to engage in a qualitative assessment of the various portions of the delay and balance it in what can sometimes be seen as an arbitrary manner.
Today, the Supreme Court released a decision (R. v. Jordan) that has given more certainty to the process. To be sure, it has not created any automatic rules (i.e. if you reach a certain delay, a bell rings and the case is dismissed). Rather, here is what is said:
 At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).
 If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.
This is not a perfect solution, but then again no decision from the Supreme Court ever is. (Otherwise, why would it have been argued through two or three – or more – previous appeals before it got there, right?) I welcome it as giving some greater certainty as to what types of delays will exist and help prepare my clients for what to expect in the months to come.
Lastly, cases already in the system are subject to some form of hybrid analysis now, considering the new rules but considering them in light of the fact that the Crown and defence would have been operating under the auspices of the old rules until now.
If you have a question about your charge (be it a Highway Traffic charge or a more serious criminal offence), please contact me for a free consultation.