The Supreme Court of Canada ("SCC") has released a
game-changing decision that overturns a line of case law
more than 30 years in the making relating to the right to a speedy
According to section 11(b) of the CanadianCharter
of Rights and Freedoms, each and every Canadian person –
including corporations, who are considered persons at law –
has the right to be tried within a reasonable time. Under the newly
overturned line of case law, four factors were considered by the
courts when determining whether a breach of s. 11(b) had
the length of the delay in getting
the matter to trial;
whether the defendant waived any
of the delay;
the reasons for the delay,
including the inherent needs of the case, defence delay, Crown
delay, institutional delay, and other reasons for delay; and
prejudice to the
accused's interests in a fair trial.
The difficulty for employers has
been that courts have differentiated between corporate and
individual defendants when considering the fourth factor above. For
instance, in order for a court to find that a corporate
defendant's 11(b) rights had been infringed, a corporate
defendant would have had to prove that the delay was unreasonable
and that the delay caused actual
prejudice to the corporate defendant's ability to defend
itself. In contrast, a presumption that the individual
defendants suffered actual prejudice was triggered once the
individual defendant was able to prove that the delay was
unreasonable. This distinction made things tremendously difficult
for employers to enforce their 11(b) rights because, in practice,
proving actual prejudice to one's ability to defend itself was
a lengthy and uncertain exercise.
However, the distinction between
corporate and individual defendants with respect to prejudice
appears to have been eliminated with the SCC's new line of
At the heart of the SCC's 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. Once the presumptive ceiling
is exceeded, the burden is on the Crown to rebut the presumption of
unreasonableness on the basis of exceptional circumstances. If the
Crown cannot do so, the charges will be stayed. In general,
exceptional circumstances fall under two categories: discrete
events and particularly complex cases. The seriousness or gravity
of the offence cannot be relied on to justify delay. And, of
course, delay attributable to or waived by the defence does not
count towards the total overall delay.
Most significantly for employers,
under the new framework the absence of prejudice can no longer in
any circumstance be used to justify delays after the presumptive
ceiling is breached. This appears to include corporate defendants.
The SCC held at paragraph 54:
although prejudice will no longer play an explicit role in
the s. 11(b) analysis, it informs the
setting of the presumptive ceiling. Once the ceiling is
breached, we presume that accused persons will have suffered
prejudice to their Charter-protected liberty, security
of the person, and fair trial interests. As this Court wrote
in Morin, "prejudice to the accused can be
inferred from prolonged delay" (p. 801; see
also Godin, at para. 37). This is not, we
stress, a rebuttable presumption: once the ceiling is breached, an
absence of actual prejudice cannot convert an unreasonable delay
into a reasonable one.
This change will provide employers
who are faced with charges with increased certainty when
determining whether or not to bring an Application to enforce their
It should be noted that cases
falling below the 18 or 30 month presumptive ceiling can still
infringe on a defendant's 11(b) rights. In these instances, the
onus is on the defence to show that the delay is unreasonable. To
do so, the defence must establish that (1) it took meaningful steps
that demonstrate a sustained effort to expedite the proceedings,
and (2) the case took markedly longer than it reasonably should
have. The SCC expects stays beneath the ceiling to be "rare,
and limited to clear cases".
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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