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CONSTITUTIONAL ISSUES - Legal rights - Trial within a reasonable time - Calculation of delay

Tuesday, August 10, 2021 @ 6:05 AM  

Last Updated: Tuesday, August 10, 2021 @ 9:20 AM

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Appeal by the Crown from a stay of proceedings. The respondent was charged with extortion, unlawful confinement, assault, and several firearms offences for an incident that occurred in October 2016. The police arrested the respondent the day after the incident and laid a six-count information. Three days later, the Crown directed a stay of proceedings on the police-laid information. The investigation continued and in February 2019, a new information was sworn charging the respondent with nine counts. During the investigation, items of the respondent were detained, and he was required to provide a DNA sample. The application judge included the 28-month gap between when the police-laid information was stayed, and the subsequent information was sworn in calculating a total delay of 44 months and 25 days.

HELD: Appeal allowed; new trial ordered. The respondent’s s. 11(b) Canadian Charter of Rights and Freedoms (Charter) rights were not engaged during the gap between when the police-laid information was stayed, and the new information was sworn. The circumstances were insufficient to justify a departure from the general rule that s. 11(b) was not engaged while the respondent was not facing charges. The s. 11(b) framework in Jordan was never intended to fix time limits for the investigation of offences. There was no evidence the Crown’s stay was due to anything other than the application of the Crown’s charge assessment process to the viability of the prosecution. The judge erred in finding that during the gap period the respondent was subject to the very real prospect of new charges. The gap should not have been included in the Jordan calculation. The total delay did not exceed Jordan’s presumptive ceiling.

R. v. Kanda, [2021] B.C.J. No. 1479, British Columbia Court of Appeal, S.D. Frankel, S.A. Griffin and J.C. Grauer JJ.A., July 7, 2021. Digest No. TLD-August92021003