Ontario Criminal


Charter of Rights

Trial within reasonable time
Crown did not rebut presumption that delay was unreasonable

In 2016, Supreme Court of Canada issued decision creating new regime for unreasonable pre-trial delay under s. 11(b) of Canadian Charter of Rights and Freedoms (“new s. 11(b) regime”). New s. 11(b) regime established rebuttable presumption that delay over 30 months in Superior Court was unreasonable. For transitional cases involving charges brought prior to new 11(b) regime, Supreme Court of Canada made allowance for account to be taken of previous 11(b) regime. Accused was charged prior to new s. 11(b) regime, and total delay until trial date in Superior Court was approximately 36 months. Accused brought application seeking stay of proceedings based on pre-trial delay. Application granted. Subject delay remained at 36 months, well above 30-month ceiling under new s. 11(b) regime, and was therefore presumptively unreasonable. Twelve-month delay during preliminary hearing was not deducted from subject delay as it could not be attributed to defence. Fact that it was defence witnesses that were being examined during this 12-month delay did not mean delay was attributable to defence. Examinations of defence witnesses covered legitimate topics and were not frivolous, excessive or irrelevant. Crown did not rebut presumption that subject delay was unreasonable by showing exceptional circumstances under new s. 11(b) regime. Crown did not prove that subject delay was justified based on previous s. 11(b) regime. Case at bar was simple and straightforward, with preliminary hearing that took only two days and trial that was expected to take no more than five days.

R. v. Zammit (Aug. 10, 2016, Ont. S.C.J., K.P. Wright J., CR-16-9227) 132 W.C.B. (2d) 331

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