Stay for delay

R. v. Tran, 2012 ONCA 18 is a useful source for the current law on stay for delay under s. 11(b) of the Charter:

a)     Analytical Framework

[20]         The framework for analyzing an application for a stay under s. 11(b) of the Charter is well-established. The court must consider: i) the overall length of the delay between the laying of the charges and the end of the trial; ii) whether the accused has waived any of the delay; iii) the reasons for the delay; and iv) prejudice to the accused.

[21]         The first factor, overall length of the delay, is a screening mechanism to determine whether an inquiry into the reasonableness of the delay is warranted. If the overall length of the delay, when considered in the context of all the circumstances (such as whether the accused is in custody), is unexceptional, no inquiry is required. Where an inquiry is warranted, time periods waived by the accused should be deducted from the overall length of the delay before considering the reasons for any remaining delay.

[22]         Five considerations come into play when considering the reasons for the delay: a) the inherent time requirements of the case; b) actions of the accused; c) actions of the Crown; d) limits on institutional resources; and e) other reasons for the delay.

[23]         One of the two main purposes of s. 11(b) of the Charter is the protection of an accused's rights under the Charter to security of the person, liberty and a fair trial. An accused will suffer actual prejudice where the accused can demonstrate that the delay in bringing a case to trial has impaired one of those rights. Prejudice may be inferred where the delay between arrest and trial is simply too long.

[24]         Once the four factors have been assessed, the court must determine whether the length of the delay is unreasonable having regard to the interests of the accused and the societal interests s. 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused.  See Morin at pp. 786-803.