Friday, June 6, 2014

11(b) analysis

R. v. Florence, 2014 ONCA 443:

[29]       In Morin, the Supreme Court of Canada set out the factors a court must consider when assessing the reasonableness of delay for purposes of s. 11(b). Writing for the majority, Sopinka J. stated, at pp. 787-88:

While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including

(a) 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 delay;


4. prejudice to the accused.

[30]       At p. 788, Sopinka J. explained that the "judicial process referred to as 'balancing' requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable."

[31]       In R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 18, the Court gave a succinct summary of the balancing required under s. 11(b): "Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect." In Godin, at para. 18, the Court also reiterated Sopinka J.'s warning in Morin, at p. 787, that the "general approach … is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s.11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."

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