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An Unreasonable Delay In Proceeding To Trial By The Crown May Be Just Cause For Having Your Criminal Charges Discontinued

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If you are charged with a criminal offence, you have a right to have your case heard in court within a reasonable amount of time. Our right to be tried in a reasonable time is defined in section 11 (b) of the Canadian Charter of Rights. In the 2016 trial of R. v. Chopra, defence counsel was successful at showing that there was an unreasonable delay by the Crown in bringing Mr. Chopra’s case to trial and as a result, the charges against him of impaired operation of a motor vehicle and “over 80” mgs, were stayed.

There are three key Canadian cases that define the criteria for determining whether the right to a speedy trial has been violated for an accused person. In R. v. Askov (1990), the Supreme Court of Canada made a landmark decision that impacted many subsequent trials; the court decided that the Crown’s delay in prosecuting a case of alleged extortion was unreasonable and as a result, the appellants were given a stay. (If a stay is granted then prosecution of the case is discontinued.)

In R. v. Askov, the court stated that delays that are the fault of the Crown weigh in favour of the accused. Also, unless the accused has waived their right to a speedy trial, and there is a substantial delay in coming to trial, then it is inferred that there is prejudice with respect to the interests of the accused.

In R. v. Morin (1992), the Supreme Court of Canada clarified that the onus is on an accused to show that significant delays in coming to trial disadvantaged their defence; however, in cases of extensive delays, the court could assume prejudice against the accused’s case.

Finally, in R. v. Finta (1994), the Supreme Court of Canada defined ‘unreasonable delay’ as the period beginning from the date the charge is laid. This decision was made in response to a case where charges were laid 45 years after the alleged crime was committed.

In July 2014, Mr. Chopra was arrested and charged with impaired operation of a motor vehicle and “over 80” mgs. In November of that year, a 1.5 day trial was scheduled for October 22ndand 23rd, 2015. However, as a result of issues that arose on the first day of the trial, further trial dates of January 21st and 22nd, 2016 were set. On November 16th, counsel for the accused filed an application to stay the charges against the accused on the grounds that there was a violation of his rights under section 11(b) of the Charter.

In making a decision on whether there was an unreasonable delay in this case, the judge considered three key issues: who caused the postponement of the original trial date resulting in the need for additional trial dates; how should the time between the first and later trial dates be fairly apportioned; and finally, whether the accused has established inferred prejudice, actual prejudice or both. There was an 18 month delay from the date the charges of impaired driving and “over 80” mgs were laid (July 2014) to the date set for completing the trial (January 2016), which was sufficiently long to warrant scrutiny.

The judge concluded that the adjournment and added trial time for this case was the fault of the prosecution for several reasons. The Crown failed to provide timely notice and disclosure with regards to a Charter request made by defence counsel, which resulted in additional litigation on the first day of trial and also forced adding later trial dates to resolve this issue. Also, the Crown was not prepared to respond to the accused’s request on the date of the original trial. Further delaying the proceedings was the fact that a critical crown witness, the arresting officer, was not available to give evidence on October 23, 2015 as originally scheduled, although the officer had not been excused and the prosecution indicated on the 22ndthat there would be a cross-examination of this officer the next day.

In total, the Crown was held responsible for a delay of 12 months and 4 days, which was judged to significantly exceed the guidelines set in R. v. Morin. Counsel for Mr. Chopra argued that in addition to the stress of a protracted trial, this delay forced the accused to incur substantial additional legal fees and thus, had a huge financial impact on him. The judge concluded that Mr. Chopra experienced “actual prejudice to his security of the person in the form of financial stress” which was deemed to result from the delay in proceedings caused by the actions of the Crown. Accordingly, the judge ruled that defence counsel had successfully met the onus to prove ‘unreasonable delay’ which violated Mr. Chopra’s right to be tried in a reasonable time. A stay in this case was therefore granted.

Posted under Impaired Driving Charges

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