11b Applications

Canadian Charter of Rights and Freedoms - Section 11b

Any person charged with an offence in Canada has the right to be tried within a reasonable period of time under section 11b of the Canadian Charter of Rights and Freedoms.

What is a reasonable period of time?

An infringement of an accused person’s 11(b) rights speaks to the principle in Canadian law that any person charged with an offence has the right to be tried within a reasonable amount of time. The Charter of Rights is Canada’s supreme body of law, subsequently all other legislation and laws fall under the scrutiny of "the Charter". The 11(b) principle applies to all traffic ticket proceedings in Canada.

The Provincial Offences Act (the law that deals with traffic tickets in Ontario) was developed with the idea that fairly routine matters, like speeding and traffic tickets, should be dealt with a simplified and expeditious process, so an excessive time delay goes against the spirit and intent of this process.

When considering if there is an infringement to a person’s 11(b) right, four factors have to be considered for the court to dismiss or "stay" the charge.

How long of time was the Delay?
Did the defendant waive their right to an earlier trial?
What were the reasons for the delay?
Did the defendant suffer any prejudice as a result of the delay?

Length of Delay
There is no "set time limit", or length of delay when considering if there is an 11(b) infringement as each case is considered on its merits and on a combination of the four listed factors. Generally the courts consider a period of 11 to 12 months sufficient to support an 11(b) argument.

Each Justice is permitted to have their own opinion as to what they believe is an unreasonable time period, as such different court jurisdictions and Justices will have different opinions.

The reason for the delay is important when considering this issue. If a person waives his/ her 11(b) right or if a defendant was the reason for the delay, then the court might not consider the delay to be an infringement of the accused's 11b rights.

Systemic delay, meaning that because of "the system or the court system was too busy", there was a infringement of the accused's rights. This is the most common cause for the 11(b) infringement.

The courts do not consider systemic delay a reasonable reason to infringe on a person’s right to have a trial within a reasonable amount of time.

Issues regarding a lack of court time, resources, disclosure, or other institutional issues, might not be enough for the Crown to explain unreasonable delay.

Waiver for an 11b Argument
Waiver means, did the defendant waive the right to have the trial held within a reasonable period of time. Usually the answer to this will be no, but on occasion a defendant would appear for their trial and ask for a remand or adjournment. At that point the Justice or Judge may ask the defendant to "waive" any complaint about any time delay for the case to come to trial.

Reasons for the Delay
When considering an 11b application the trial Justice will want to hear evidence from the defendant or the defendants agent as to what were the reasons for the delay, what were the actions of the accused, what were the actions of the Crown, were they issues regarding the institutional resources, and were there any other reasons for the case taking too long to come to trial.

Prejudice to the accused
When considering the prejudice to the accused, the courts have accepted that there is a presumed prejudice for a person that is charged with an offence and facing disposition at a trial. Memory, anxiety, or negative social stigma are all common factors that are presented to demonstrate the issue of prejudice. Because we go by a system of ‘innocent until proven guilty,’ prejudice to the accused is considered a paramount factor when dealing with issues of a Charter infringement.

What is the point of an 11(b) argument?

Where it can be demonstrated that a person’s right to a fair trial has been infringed, the court is in a position to grant a remedy. The best remedy for an 11(b) infringement is a stay of proceedings, which means the charge is withdrawn.

11(b) arguments require that timelines are met and proper forms are filed, and it must be noted that one can not simply raise the issue on a trial date.

To file an 11b complaining that your case has taken too long to come to court, the applicant must file a legal motion with the court prior the trial date.

There is case law that should be presented to the court by way of a factum, so there is a benefit to having these arguments presented by a qualified professional.

At OTT Legal Services we have successfully presented many 11(b) arguments. Call us at 1-888-668-8946 or visit one of our seven Ontario offices.

Why Risk Losing? Call For a Free Consultation 1-888-668-8946 or Email Your Request