Retaining a criminal defence lawyer promptly after being charged and before the first court appearance is an important first step towards protecting your rights and improving your chances for success.
Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees the right to a trial within a reasonable period of time.
The Supreme Court of Canada has suggested that individuals charged and prosecuted summarily should be tried within approximately 8 to 10 months after they are ready to proceed to trial.
Delay beyond this period is typically considered to warrant judicial inquiry and may result in a stay of the proceedings. When there is a stay of proceedings due to unreasonable delay, the accused’s charges are dismissed and there is no trial.
In order for the trial judge to assess whether there has been unreasonable delay, the accused must instruct their defence lawyer to bring an unreasonable delay motion. This involves the lawyer preparing a brief containing written submissions, case law and an affidavit from the accused detailing the prejudice he or she has suffered from the delay. Examples of specific prejudice suffered may include the inability to obtain desired employment or travel due to outstanding charges, loss of liberty due to strict bail conditions and stress and anxiety.
To be successful at an unreasonable delay motion, the accused must be able to demonstrate that the delay in getting to trial is not their fault. Instead, the prior court record of appearances leading up to the setting of the trial date must reflect that the Crown prosecutor’s office failed to provide disclosure in a timely manner and also the Court system failed to give the accused a trial date in a reasonable time period.
The accused will not succeed in this argument if it is concluded that significant parts of the delay are attributable to taking too much time to retain counsel; not diligently pursuing outstanding disclosure; and otherwise demonstrating contentment with the slow pace of the case moving forward.
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By hiring a criminal defence lawyer at the earliest stage, the accused is better positioned to ensure that disclosure requests are being made in a professional manner and followed up with to keep pressure on the Crown prosecutor to justify the delay.
In most instances, it is only through the expertise of a criminal defence lawyer that the accused will be able to know what important disclosure is required, should be requested and therefore has not been provided.
Also, when a trial date is offered it is essential that the criminal lawyer advise the court that the accused was ready for trial at much earlier dates.
Mirza Kwok Criminal Defence Lawyers protect the 11(b) Charter rights of our clients.
For more information call us for a consultation.