Section 11(B) Delay Application

I want to talk about a very interesting topic today and that is section 11(b) delay applications under the Canadian Charter of Rights and Freedoms. Now, first of all under our charter, which was came into vogue in 1982, under Section 11(b) The charter, you have the right to be tried within a reasonable time period. So from the laying of the charge against you until the commencement of your trial, certain time periods have been set that beyond that time period it’s presumptively there’s delay and your case should be thrown out. It’s a very complicated area of law, but I’m going to try and simplify it for you as much as possible because it’s a common question that comes up with our clients. Now you’re charged with a criminal offense and they lay a charge so let’s say that lay a charge today. Now, a new case that came out recently called Jordan J-O-R-D-A-N for the Supreme Court of Canada. It really redefined the nature of delay applications and the timelines that they’re involved with. So what Jordan says is, your trial should commence, if it’s in the Ontario Court of Justice, that’s the lower court no later than 18 months from the laying of the charge. And if it’s in the Superior Court of Justice, it should commence no later than 36 months from the laying of the charge. So if the charge is laid today your trial should commence within 18 months. And if it’s in Superior Court Justice 36 months, but it’s way more complicated than that because you see, the way they calculate delay in our system, sometimes defense counsel causes the delay. So hey, if I’m sitting on my hands and not moving the file, I went to court and put it over for two months and did nothing well, the court is going to analyze that period of delay and subtract it from the 18 months. So even though my trial is 19 months from now you know well, Mr. Kruse, what did you do during those two months? You did nothing. You were another defense counsel. I like to think I never did nothing. By the way I like to move my clients’ files. So they analyze the periods of delay and determine whether it’s thrown out. Now, when I get a case from a client, and I’ve moved along expeditiously and I’m moving the file, and in the remand process, the Crown didn’t get the disclosure for five months. They didn’t have a judicial pretrial available for the two months. The first available date they offered me was after the 18 months. Well, if you look at that I have not caused any of those periods of delay. There might have been 20 court appearances in there. And I might say to the client, well, I think you’ve got a reasonable chance of winning this. So, what I will do then is I will bring a delay application. It’s a complicated process. I’m simplifying it as much as I can, by the way legally. I have to order all the transcripts from every court appearance, which are going to record what was done who did it. Then I have to analyze all those periods of delay in a factum, that’s written submissions and set it all out legally and calculate the points of delay and try and argue that you know what I caused none of this delay and the case should be stayed. Now a stay means as if it was withdrawn, which is a great result. So we go that that delay application takes place before the trial starts and the judge and the Crown does written submissions too, we have oral argument which could be a day or two in court, fairly complicated legal process, and the judge will have to make a decision whether the case is going to get thrown out. Now, I can tell you this. It’s not easy to play the delay application because the courts tend to bend over backwards to try and attribute some period of delay to defense counsel. There are cases that get thrown out don’t get me wrong, but they do bend over backwards and particularly during COVID they bent over backwards to try and attribute some period of delay due to COVID delay. You know, our court system was paused that wasn’t due anyone’s fault. That wasn’t the court. That wasn’t a lack of court resources. That wasn’t the Crown Attorney sitting on their hands. So those periods usually did not count. So I have won delay applications. It’s more of a rarity. I’m not sitting here telling you it happens all the time. But I’ve worked quite a few of them in my career because some cases just didn’t move through the system well through no fault of defense counsel. It was due to lack of judges, lack of court time, etc. Now, let me give you an example how hard sometimes it is argued delay though just so you have a good flavor of it. If I’ve got a case that’s been in the court system for three months right now, okay, so my client the charges got laid three months ago. I’m in the case management court, which is the initial court intake process and the court system, case management quarter read and court as many people call it, and I go to set a trial date today. So let’s say the trial coordinator offers me a trial date for we’re three months in now and so seven months from now. And I say you know what, I’m not available that day. I’m booked for another trial. And the next available date is beyond the 18-month period. Well, the fact that I wasn’t available that one day, I can’t argue the delay application. So that’s how difficult they make it. defense counsel has to show at all times that they’re moving the file. You know, all the periods of delay were attributed to lack of resources judicial resources, or the crowds thought say the crowd didn’t get disclosure to you wasn’t a judge available etc. And if periods of delay can be attributed the accused to bring it within the 18 months, then a case is not going to get thrown out.  So even though a trial date might not be 25 months from now, well, today, they’ll charge like 25 months ago, the trial’s today I brought a delay application, well, the court’s going to bend over backwards to try and attribute some delay to me. Maybe they can maybe they can’t. Some delay to COVID, well, the court system was paused for three or four months and get it below the 18 months. The other thing is when you go to bring a delay application, if a trial date set today for say 12 months from now and that brings you past the 18 months well, you’ve got to let the crown and the trial coordinator know right away I intend to bring a delay application. What they’ll do then is they’ll bend over backwards to try and find an earlier date. So that’s a bit of a primer about delay applications. It does happen in our system. COVID has caused a little bit of a problem to right now. There’s I think there’s more cases getting thrown out right now but the Ministry Attorney General is doing a good job of having Judicial Resources applied to the right cases. So, it’s not as bad a problem as I predicted initially at the outset of COVID when we were getting a real cascading backup of cases because of the pause in the system. So you know it’s kind of a last resort type defense. If your only defense is delay, you know, you know you hope you have a defense after that because you may not very well win but having said that, there are some very clear-cut cases that get thrown out I argue quite a few in my time and but again, it happens more in a rarity of criminal cases including during COVID. Last word on the topic, I must say and you know, it’s a little disappointing, but I will say this I don’t mean to be too critical of our justice system, but I think the courts have bent over a little bit too backwards trying to attribute everything to COVID. The delay which is in our system right now is not all due to COVID and sometimes they attribute too much to defense counsel when it’s not defense counsel’s fault but by in large, it’s something that will work when it’s obvious that the 18 months or the 36 month delay in SCJ was due to limited resources and obviously not due to defense counsel fault. There’s a little bit of a primer on section 11(b) delay applications.