Remedy for Trial Delay

• Author: Tracy Kozlowski/Joanne Stuart
• Pages: 151-157

151

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Remedy for Trial Delay

Section 24(1) of the Charter of Rights and Freedoms allows for broad poten-

tial remedies in the event of a Charter breach. It reads that “Anyone

whose rights or freedoms, as guaranteed by this Charter, have been

infringed or denied may apply to a court of competent jurisdiction to

obtain such remedy as the court considers appropriate and just in the

circumstances.” In spite of this broad remedial power, however, it has

been determined that the minimal remedy for a breach of section 11b

of the Charter related to delay to trial is a stay of the proceedings. Once

a breach has been found, the prosecution comes to an end, without

exception. A review of the history of the Supreme Court’s consider-

ation of the appropriate remedy for a breach of section 11b of the

Charter follows below. It demonstrates that the underlying basis for the

determination that only a stay will suce to remedy the breach was

not initially agreed upon. However, those who did agree that only a

stay would suce, shared the concern that to persist with a trial once

a breach was found would amount to perpetuating the Charter breach.

In the pre-Jordan era, the appropriate remedy for a breach of sec-

tion 11b of the Charter was rst considered by the Supreme Court in

Rv Mills. Justices McIntyre, Beetz, Chouinard, and La Forest held that

the infringement of a Charter right does not give rise to jurisdictional

error. They further held that section 24(1) is a broad provision that allows

1 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, s 24(1) [Charter].

2 R v Jordan, 2016 SCC 27 [Jordan].

3 1986 CanLII 17 (SCC) [Mills].