Ontario Criminal

Charter of Rights


Accused suffered specific prejudice for delay in bearing costs of paying counsel for additional trial date

Application by accused for stay of proceedings because she was not tried within reasonable period of time contrary to s. 11(b) of Canadian Charter of Rights and Freedoms. On May 8, 2011 accused was arrested for refusing to comply with demand that she provide breath sample. Information was sworn on June 15, 2011. Application was brought on Oct. 16, 2012. Trial was set for Dec. 7, 2012. Application allowed. Stay was granted. Delay was calculated from June 15, 2011 which was when Information was sworn and it was not calculated from arrest date. Overall delay was 17 months and 22 days. Accused did not waive her right under s. 11(b). Total institutional and Crown delay amounted to 12 months and 10 days, and this exceeded applicable guideline of eight to 10 months. Accused’s liberty or ability to make full answer and defence was not prejudiced. However, there was nothing accused did or failed to do which suggested that she was content with pace at which things were proceeding. In this case where combined institutional and Crown delay exceeded guidelines by more than two months it was reasonable to infer that accused suffered prejudice to her security of person interest. Accused also suffered specific prejudice for Crown delayed her case to allow officer to testify in another case and accused, who did not earn much money, had to bear cost of paying counsel for another trial date. Based on all circumstances length of delay was unreasonable and accused’s s. 11(b) right was violated.

R. v. Shukla (Dec. 7, 2012, Ont. C.J., McArthur J.) 104 W.C.B. (2d) 916.

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