Nunatsiaq Online
COMMENTARY: Around the Arctic September 12, 2017 - 1:10 pm

Legal Ease, Sept. 12

Speedy Trials?

JAMES MORTON

When I tell people there is a constitutional right to a speedy trial in criminal cases in Canada, sometimes they laugh at me. Certainly it sometimes seems that criminal cases (and civil and family matters) just never end.

There are good reasons why cases take a lot of time.

Often the issues are terribly complex. In a serious criminal case, for example, it is common to have thousands of pages of disclosure that have to be reviewed before a trial.

Sometimes there are delays caused by motions about, for example, whether evidence of the accused prior conduct (say similar criminal convictions in the past) can be considered. 

Realistically, this means that very few cases are simple enough to go to trial in less than six months. And most cases take longer—often much longer—than that.

Of course delay is a bad thing for an accused. Perhaps they are sitting in jail waiting for trial—and if they are acquitted they will never get that jail time back. And even if they are not in jail, waiting for a trial is supremely stressful. 

But it’s not only the accused who suffers from delay. Victims of crime want justice and delay hurts them. Witnesses want to get cases over—waiting to testify is stressful too.

More generally, society as a whole has good reason to want to have criminal matters dealt with quickly.

A criminal trial is not meant to be historical research. It is supposed to bring justice to victims, vindicate the innocent and punish wrongdoers. None of that works well if a trial for, say, an assault, takes place five years after the incident.

Recognizing this balancing act, the Supreme Court has developed guidelines to balance the need for a speedy trial with the reality that things take time.

The court created a presumptive maximum delay that was acceptable. The maximum delay will depend on the level of court in which the matter will be heard.

A trial before a judge without a preliminary inquiry (sort of a trial to see if a trial is needed) will have a presumptive maximum delay of 18 months. These are, broadly speaking, simpler cases.

A trial with a preliminary inquiry—usually more serious cases—will have a presumptive maximum delay of 30 months.

If these delays are met, a case will be stayed (effectively dismissed) unless there are some very unusual circumstances.

One exception to this is delay caused by the accused—that delay does not count against the maximum delay. Obviously if defence delay counted, there would be a big incentive for an accused to rag the puck—quite the reverse of what is good for society as a whole.

The balancing process is not perfect but it is a way to make sure cases do not drag on endlessly except in very unusual circumstances, or for very good reason.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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