Appeals and Extraordinary Remedies

• Author: Tracy Kozlowski/Joanne Stuart
• Pages: 67-70

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 4

Appeals and Extraordinary Remedies

In order to understand why section 11b protection does not apply to

appeals and to discern when section 11b protection applies to extra-

ordinary remedies, it is important to appreciate the overall limits of

section 11b protection. Section 11b of the Charter protects an accused

throughout the period when they have the status of “a person charged

with an oence.” The term “person charged with an oence” has been

interpreted by the Supreme Court to be a person or corporate entity

who is the subject of criminal proceedings. A person is subject to a

criminal proceeding from the time the charge is laid until the nal

resolution of the matter in trial court, including sentencing.

As discussed in Chapter 3, the framework and tests that have

developed since Jordan relate to various aspects of section 11b protec-

tion. The Jordan framework is limited to the period from the charge

to the actual or anticipated end of trial, meaning “when the parties’

involvement in the merits of the trial is complete, and the case is turned

over to the trier of fact.”

1 Section 11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act,

1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], states: “Anyone

charged with an oence has the right to be tried within a reasonable time;” Rv JF, 2022

SCC 17 at paras 23–24 [JF]; R v Potvin,1993 CanLII 113 (SCC) at paras 57–59 [Potvin].

2 R v CIP Inc, 1992 CanLII 95 (SCC).

3 R v MacDougall,1998 CanLII 763 (SCC) at paras11–13 [MacDougall].

4 R v Kalanj,1989 CanLII 63 (SCC) at paras 16–19 [Kalanj]; Potvin, above note 1 at paras

61–62; MacDougall, above note 3 at paras10 and 17–18;R v KGK,2020 SCC 7 at paras

26–27 [KGK]; JF, above note 1 at para 23.

5 KGK, above note 4 atparas31 and 33;R v Jordan, 2016 SCC 27 at para 47 [Jordan];R c Rice,

2018 QCCA 198 at para41.