Charter Of Rights And Freedoms Essay

The Canadian Charter of Rights and Freedoms came to be in April of 1982. Its purpose is to protect the people’s rights and freedoms by limiting the government’s authority over which laws to pass, by identifying whether they could violate those rights and freedoms. The laws that are passed must be in harmony with the Charter. Its sections are left up to the courts to interpret it as they deem fit to individual cases.

According to the Charter, everyone is to be “treated equally regardless of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability”. Some of the sections in the Constitution, of the Charter of Rights and Freedoms are our equality rights, mobility rights, and legal rights. Section 11

of the Charter lists the rights and the freedoms that one has once they are placed under arrest.

In this essay, it will be argued that when justice delayed, justice is, in fact, denied. Section 11(b) of the Charter of Rights and Freedoms outlines that defendants have a right to be “tried within a reasonable time”. While it is left up to the courts to decide what is considered a “reasonable time” on a case-by-case basis, there are certain time frames within which trials have to be held. When trials are delayed for lengthy periods of time, the psychological pressure that the litigants must deal with is very severe. If trials are delayed constantly, either due to accumulation of previously unheard cases, or due to delays on the part of the Crown, it will bring our justice system into disrepute.

The trust we have invested in our legal system is one that should be well preserved, as once it is gone, it is hard to gain back. Whether legal matters are tried on time or not has a large impact on the trust that we, as a society, have in the system.
Delays caused by the Crown and/or the courts are frequent. Oftentimes, the defence (and Crown) may be ready for trial, but courts are not prepared, as judges may not able to sit on cases for different reasons. “These reasons might include a backlog of court cases, or judges just not being available.”
Section 11(b) of the Canadian Charter of Rights and Freedoms states that “any person charged with an offence has the right to be tried within a reasonable time”. Many cases have been dismissed on the grounds that the defendant’s right to a trial within a reasonable time has been violated.

By way of illustration, in R. v. Askov, three individuals had been accused of conspiring to commit extortion, as well as some firearm charges. This case saw a two-year delay, at which time the accused claimed that their right under Section 11(b) of the Charter had been violated. The Supreme Court of Canada ruled in their favour and found that a delay caused by the system, including backlog, would not be accepted as reasoning to “get around” the rights one has. The longer a case is delayed for, the harder it is for a court to justify it.

Certain factors were taken into consideration when concluding that the accused’s trial had been delayed for an unreasonable time. To begin with, the length of the delay is considered. Second, the explanation for the delay. Delays for reasons such as the need to have witnesses present are not taken into account, and do not count as part of the “delay”. Any delays carried out by the Crown will benefit the defendant. If the case is a complex one, where time is needed carry out extensive research in order to gather evidence by the Crown, delays are justified. A third factor is whether or not there have been any waivers for the delay by the accused. Specifically, was the delay on the part of the defendant? If so, the defendant is then waiving his or her right to a speedy trial, by causing the delay him or herself. If any delay were attributable to the defendant, that time would not be considered as part of the “delay”. Lastly, the effect that the delay of trial has had on the defendant. For example, the psychological effect on an individual that has been wrongfully accused of sexual assault. For one to have such charges laid and hanging over one’s head for an extended period may have serious impacts on one’s life.

To further expand, in a similar case, R. v. Morin, the accused, Darlene Morin had been accused of driving under the influence in early 1988. Morin’s trial was held 14 and a half months later, in 1989. Because the act was a prima facie, the judge decided that, according to the decisions that had been previously taken in R. v. Askov, the case had been unreasonably delayed. Justice Cory states that “a period of delay in a range of some six to eight months between committal and trial might be deemed to be outside limit of what is reasonable”. Justice Cory indicates that a period of such length may, in certain circumstances, be excused, but the length is sufficient for Section 11(b) to come into play.

Similarly, in R. v. Godin, justice to the defendant was delayed 30 months. Godin “was charged with sexual assault, unlawful confinement, and threatening bodily harm to his ex-girlfriend” in May of 2005. Four months later, a trial date was set for February of the following year. A few days before the trial date in February 2006, “forensic evidence revealed that the sperm swab DNA obtained from the victim did not match Godin’s DNA”. This new evidence caused a number of delays to follow. The Crown did not respond to a letter for the defence in which the Crown was asked on which days he would be available. In the end, trial was set for November of 2007. Much of the delay was on the Crown’s side, for which no explanation was given. After applying for a stay of proceedings in 2007, Godin’s trial was heard at the beginning of 2009. Supreme Court Chief Justice McLachlin comments on R. v. Godin, saying:

When trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.

By delaying trials, not only are the litigants denied justice, but also, the public is denied justice. If the accused is, in fact, guilty, then he or she is a threat to society.

Godin argued that his right to be tried within a reasonable time was infringed because his trial was not to take place until 30 months after the charges were laid. A 30-months delay was far too long and his right to justice and to a speedy trial had been denied. The Supreme Court determined that, without a doubt, Godin’s right under Section 11(b) of the Charter had been violated, justifying by saying that this was not a complex case. The Supreme Court said the following:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.

To hold that the delay clock stops as soon as a single available date is offered to the defence and is not accepted, in circumstances where the Crown is responsible for the case having to be reschedules, is not reasonable.

As mentioned previously, any delay by the Crown will work in the defendant’s favour. R. v. Ghozerash illustrates how this type of delay benefits the defendant.

In September of 2009, Azad Yousefi Ghozerash “was charged with importing and possessing opium for the purpose of trafficking”. Trial was first scheduled for December of the following year, but adjourned due to the unavailability of a Crown witness. The case was then rescheduled for trial for October 2011, where the defendant applied for a stay of proceedings on account of unreasonable delay. After another year, in March of 2012—3 years after the charges had been laid—the judge came to the conclusion that the defendant’s right of a speedy trial had been violated.

Although no concrete case law exists that speaks to the meaning of a “reasonable time” in which the accused must be tried, and is left up to the court to decide, Justice Cory indicated that when a trial is delayed for approximately six to eight months, it is considered to be “outside limit of what is reasonable”. By stating this, he has set a precedent for further cases.

One might say that justice delayed, is not justice denied, but, rather, justice rushed is justice ruined, or justice hurried is justice buried. They might argue that “rushing” a trial might result in an erred conviction. If trial is delayed, an innocent person may have to live with the shame and embarrassment that come with being exposed to the media during a trial. It may include losing friends, family, and having their life tinted with the negativity of a charge hanging over their head for an extensive amount of time.

Unless the case is a complex one, where time is essential to the readiness of the parties for trial, delays should not reach months in the double-digits.
In addition, the longer proceedings are dragged out for, the more the client needs to invest money lawyer. If the trial is delayed by a number of months considered “unreasonable” then, with that, comes an unreasonable sum spent in legal fees. Persons may, at that point, be forced to withdraw from the proceeding or continue unrepresented, and that is when one’s right to justice, is denied.
As mentioned, delay in trials can have a serious psychological impact on the accused. If charged with sexual assault of a minor, the media may be involved and the defendant may lose their career, family, and friends. This impedes the defendant form living a “normal” life. Section 11 seeks to protect one’s individual rights: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial.

In R.

v. Collins, the courts dealt with a delay caused by the Crown. There was a two-year delay, where the Crown had delayed disclosing its case to the defence. The accused had asked for an earlier trial date, but had spent almost two years in custody awaiting trial.

In addition, as seen in R. v. Kporwodu, two individuals, Anthony Kporwodu and Angela Veno were accused of killing their three-month-old daughter, and were charged with first-degree murder.

The two had another child, a son, who was also taken into custody and placed in foster case. The defendants suffered from high levels of stress and depression because of this.

Angela Veno later became pregnant, and was told by her social worker that if she chose to have the baby, “it would likely be taken away as well unless the police cleared her and her husband of wrongdoing in the case”. Ms. Veno chose to have an abortion, and thus, suffered from intense depression, anger, frustration, and loss, despite received therapeutic counseling.

The case was delayed for 70 months, in which the defendants were denied the right to be presumed innocent until proven otherwise. The judge stayed the case and the court later found that there was prejudice to the defendants as well as a violation of Sections 7 and 11(b) of the Charter of Rights and

Freedoms.

By having such a charge hung over their heads for such a long period of time, the defendants had been, without a doubt, psychologically affected. (own) The Court of Appeal quoted the trial judge in saying that “the primary purpose of the right to a trial within a reasonable time is to protect the defendant’s right to fundamental justice”. The Court of Appeal continues, “the cost to the defendants…is almost palpable…”.

Criminal lawyer Brian Ducharme states that if the accused’s lawyer is able to demonstrate in what way the delay has negatively affected the accused’s quality of life, the judge is likely to rule in the accused’s favour. He continues by saying that by delaying trial, there is a lengthening of emotional—and financial—stress on the defendant. When courts fail to deal with backlogs, harsh consequences are involved.

Controversies are prolonged; hard feelings emphasized; families suffer…from their inability to obtain relief; … widows and wives are forces to work for years to provide for their children while awaiting a decision in cases [where there had been] a death of or injury to their husbands, and in the end they may pay 50 per cent of their awards to lawyers.

When cases are delayed, the delay, expense, and worry of a trial affect the litigants in the harshest ways possible. Defendants who may have been willing to settle had to wait months—sometimes years—before they were tried in court. A right was taken from them, causing them great stress, anxiety, and even post-traumatic stress disorder (PTSD).

The primary purpose of Section 11 of the Charter of Rights and Freedoms is to provide protection of one’s rights in three ways:

[To begin with], the right to security of the person is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. [Second], the right to liberty is protected by seeking to minimize exposure to the restrictions on liberty that result from pre-trial incarceration and restrictive bail conditions. [And lastly], the right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is still fresh.

After long period of time of being exposed to judgment by the media, one cannot simply return to the life they once had. The accused has been stripped of the “normal” lifestyle they once had.

When trials are delayed for extensive periods of time, a weak spot is created in our legal system. Once a trial is put on hold indefinitely, witnesses’ memories become faint and unclear. The legal system must be efficient and swift in resolving issues.

Eventually, these delays will bring the system into disrepute, and the courts will lose the supremacy and respect they once had.

Justice McLachlin, speaking to the unacceptable state in which our legal system is in, says that many do not have access the justice system within a reasonable time. Because our court system is “clogged”, when there is a lengthy delay, “swift, predictable justice, which is the most powerful deterrent of crime, diminishes”.