Drinking and Driving Prosecution Halted Due to Unreasonable Delay of Trial

December 1, 2015

Every person accused of a crime has the right to a trial within a reasonable time, whether the charge is murder, trafficking a controlled substance, impaired driving, or any other criminal offence. This right is protected under s. 11(b) of the Charter of Rights and Freedoms. There is no set time limit within which a trial has to happen. Whether this right has been violated depends on the circumstances. Those circumstances include whether the accused and the defence lawyer do anything to hold up the proceedings, whether there are delays resulting from an overcrowded court system, and whether the prosecution does anything to unreasonably hinder the progression of the matter to trial.

The legal remedy for a violation of the right to a trial within a reasonable time is a stay of proceedings. This consists of a judge effectively ordering a halt to the prosecution of the accused. Since the accused person is presumed innocent, he or she remains innocent after the prosecution is halted, and ends up in the same legal position as a person who was found not guilty after trial.

Before getting such a remedy, it’s up to an accused person (or his or her criminal defence lawyer) to establish that his or her right to a trial within a reasonable time has been violated. Upon the accused bringing this s. 11(b) Charter application, a judge is required to determine if there has been unreasonable delay by figuring out the reasons for delay in getting to trial, including which party was responsible for any of the delay. This will usually involve a thorough examination of the transcripts of each and every court appearance which took place before the trial, and of the relevant correspondence between the defence lawyer and the Crown. The actions of the accused and his defence lawyer, even at the earliest stages of the proceedings, will be under close inspection. This highlights the importance of having the right lawyer, doing all the right things, right away.

This client acted quickly in hiring Tyler MacDonald to defend him against the drinking and driving charge of operating a motor vehicle with a BAC of over .08. To defend against this charge, various technical information on the breath testing machine usually needs to be obtained by the defence lawyer, so that it can be reviewed for any operational or functionality issues. The Crown and the police usually agree to provide this information within a reasonable time. In this case, they refused.

A year was wasted in litigation over the disclosure of the breathalyzer information, as no trial could happen until the issue had been dealt with. It ended with the Crown finally providing everything that the defence wanted, just days before a scheduled defence motion to have a judge order disclosure of the information. Mr. MacDonald then brought an application asserting that the client’s right to a trial within a reasonable time had been violated due to the long delay occasioned by the Crown’s refusal to hand over the materials.

As expected, the hearing of the s. 11(b) Charter application led to much judicial scrutiny of the actions of the Crown and of defence counsel at every stage of the proceedings, as well as pointed questions from the judge toward both counsel during oral argument. In the end, Mr. MacDonald’s application succeeded. The proceedings were stayed due to the unreasonable delay of the client’s trial, and the client was finally freed of the charge.

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