I have heard of charges being stayed because of delay. How does this happen?

The Canadian Charter of Rights and Freedoms is an incredibly important document that helps protect fundamental human rights of all Canadians. Section 11(b) of the Charter relates specifically to the right of an accused person to be tried within ‘a reasonable time’. This section has evolved and been clarified through various cases, including R v Morin, 1992, which stated that the accused has the burden of proving that prejudice resulted because of the delay. It has been agreed, however, that in the case of extreme delay, this prejudice can be assumed. R v Finta, 1994 further shaped this rule, setting out that delay begins at the time the charge is laid and continues until sentencing is complete. The most recent development in the case law regarding trial delay was in R v Jordan, 2016. The Supreme Court in this case defined unreasonable delay as 18 months in the provincial court, and 30 months in the Superior court. 

If a case takes longer than this amount of time from the time charges are laid until the completion of trial and sentencing, it is presumed unreasonable and the burden of proof shifts to the Crown attorney to prove that the delay was justified by unforeseeable circumstances or circumstances out of the Crown’s control. If the Crown cannot do so, the charges must be stayed. All of this being said, before making a decision on unreasonable delay, the Court will take into account court resources, delay caused by the accused or their counsel, complexity of the case, etc. and the judge will make a discretionary decision on whether the delay was reasonable.

If you have been charged with a criminal offence, it is important to seek legal advice immediately in order for a lawyer to review your case and determine any possible legal defences.