One leading employment lawyer goes over the revolutionary ruling that overturns a line of case law more than 30 years in the making.
According to section 11(b) of the Canadian Charter of Rights and Freedoms, each and every Canadian person – including corporations, who are considered persons at law – has the right to be tried within a reasonable time.
Under the newly overturned line of case law, four factors were considered by the courts when determining whether a breach of s. 11(b) had occurred:
- The length of the delay in getting the matter to trial
- Whether the defendant waived any of the delay
- The reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay
- Prejudice to the accused’s interests in a fair trial.
For instance, in order for a court to find that a corporate defendant’s 11(b) rights had been infringed, a corporate defendant would have had to prove that the delay was unreasonable and that the delay caused actual prejudice to the corporate defendant’s ability to defend itself.
In contrast, a presumption that the individual defendants suffered actual prejudice was triggered once the individual defendant was able to prove that the delay was unreasonable. This distinction made things tremendously difficult for employers to enforce their 11(b) rights because, in practice, proving actual prejudice to one’s ability to defend itself was a lengthy and uncertain exercise.
However, the distinction between corporate and individual defendants with respect to prejudice appears to have been eliminated with the SCC’s new line of thinking.
At the heart of the SCC’s new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court.
Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, the charges will be stayed. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
The seriousness or gravity of the offence cannot be relied on to justify delay. And, of course, delay attributable to or waived by the defence does not count towards the total overall delay.
Most significantly for employers, under the new framework the absence of prejudice can no longer in any circumstance be used to justify delays after the presumptive ceiling is breached. This appears to include corporate defendants. The SCC held at paragraph 54:
 Third, although prejudice will no longer play an explicit role in the s. 11(b) analysis, it informs the setting of the presumptive ceiling. Once the ceiling is breached, we presume that accused persons will have suffered prejudice to their Charter-protected liberty, security of the person, and fair trial interests.
As this Court wrote in Morin, “prejudice to the accused can be inferred from prolonged delay” (p. 801; see also Godin, at para. 37). This is not, we stress, a rebuttable presumption: once the ceiling is breached, an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one.
This change will provide employers who are faced with charges with increased certainty when determining whether or not to bring an Application to enforce their 11(b) rights.
It should be noted that cases falling below the 18 or 30 month presumptive ceiling can still infringe on a defendant’s 11(b) rights. In these instances, the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. The SCC expects stays beneath the ceiling to be “rare, and limited to clear cases”.
The lawyers at CCPartners are well-versed in strategically navigating charges brought by the Ministry of Labour under the Occupational Health and Safety Act and the Ontario College of Trades and Apprenticeship Act. Click here for a list of lawyers at CCPartners who can help.
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