Question: I’m Charged – How Long is This Going to Take?

The law recognizes that a person who is charged with a criminal offence is impacted by having outstanding charges hanging over his or her head.  As our Supreme Court stated recently:

  Trials within a reasonable time are an essential part of our criminal justice system’s commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial. Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions. Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence.  (R. v. Jordan 2016 SCC 27)

Because of these concerns, the Supreme Court has established “ceilings” after which any delay in the court proceedings will be presumed to be unreasonable, unless the prosecution can justify the delay.  As you may have read in Your Criminal Case – The Process section, there are two kinds of trials:  Provincial Court trials and Supreme Court trials which follow a preliminary inquiry.  In the case of “one-stage” trials in Provincial Court, the ceiling is 18 months delay.  In the case of “two-stage” trials, the ceiling is 30 months delay.   What this means is that if the trial takes longer than that, it is presumed that the matter will be dismissed because of the delay.  Bear in mind that the clock only starts to run for delay after charges are actually laid.

There are exceptions, of course, and they work both ways.  Where a person is in custody, suffering significant restrictions on liberty or opportunity while in the community, or where the outstanding charge is keeping family members apart, the time that is considered “reasonable” will likely be far less.  Or it can be more.  For instance, complex cases involving multiple accused or unforeseeable or unavoidable delays (such as those related to Covid-19, for example) will result in longer periods being considered reasonable.

The fact that the prosecution has a duty to bring the case to trial and complete it within a reasonable time creates opportunities for the defence.  Early on, our focus lies in “information gathering”.  Most of that information can only come from the Crown or the police.  The Crown and police have a duty to provide all information and materials to the defence, so long as it is relevant and not privileged.  But you have to ask for it.  And know what to ask for.

As a result, when I am retained as counsel and a charge is laid, we start to bring pressure on the Crown and police to provide full disclosure.  While the Crown provides an “initial disclosure package”, it is invariably lacking and leads to a number of follow up requests for more documents or information.  Often this additional material is essential to identifying all of the issues in the case, seeking your instructions, and advising you as to the prospects of success so that you can make informed decisions as to how to proceed.  As a result, much of the delay in bringing matters to trial promptly is created by the Crown and/or investigating police not being responsive to disclosure requests in a timely way.

Yes, we can rush to fix a trial date before securing disclosure (or at least knowing that the Crown is refusing to give it to us and you are going to have to make a court application to get it).  But if we do that, we take the pressure off of them.  Then what can happen?  We end up scrambling as we receive late disclosure on the eve of or even during the trial itself.  This scenario is avoidable by using the “ceiling” or “limitation period” as leverage.  And the worst that can happen?  The case gets dismissed because the Crown dragged its feet and didn’t get the case to trial fast enough.

Finally, in many cases, time can be your friend.  At least if you use it well.  If you are out of custody abiding by bail conditions, you are creating a record of good behaviour that the court will usually place great weight on if you end up being sentenced for something.  This time can also be used to be proactive in seeing counselling, doing volunteer work, gaining employment, enrolling in school or engaging in generally “pro-social” activities.

So “how long is this going to take?” is actually the wrong question.  The right question is “how can I make the best use of this time?”  This is a time for patience, rather than impatience.  It’s time for attention to detail.  And it’s a time for identifying anywhere we can secure an advantage and vigorously pursuing it.

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