Trial Within A Reasonable Time

Section 11(b) of the Charter of Rights and Freedoms guarantees to any person charged with an offence the right “to be tried within a reasonable time.” What is reasonable is left to the Courts to decide in the circumstances of individual cases. There are guidelines. The Supreme Court of Canada has said that, for less serious cases tried in Provincial Courts, a time period of 8-10 months from arrest to trial is a reasonable time. For more serious cases where there is a preliminary hearing and trial in the Superior Court, an additional 6-8 months is reasonable. The Courts have been careful to point out however that delays beyond these guidelines do not, on their own, give rise to a violation of section 11(b). Each case must be looked at on its own facts, having regard to the length of the delay, whether any time periods have been waived and prejudice to the accused. The Courts have also stressed that there is a societal interest in having serious charges heard on their merits. In short, deciding whether the delay is unreasonable in a given case is a delicate exercise.

In its June 2009 decision in R. v. Godin, 2009 SCC 26, the Supreme Court of Canada reinstated a stay of proceedings where a charge of sexual assault had taken 30 months to get to trial and where the Crown had failed to provide an adequate explanation for the delay. The Court disagreed with the decision of the Ontario Court of Appeal that the accused had waived part of the delay by not being available for a date proposed for a preliminary hearing. The Court made the following important statements in that regard:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.

To hold that the delay clock stops as soon as a single available date is offered to the defence and is not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.