Informed without Unreasonable Delay of Offence

Informed without Unreasonable Delay of Offence

Section 11(a) of the Charter of Rights and Freedoms provides that any person charged with an offence has the right to be informed of the specific offence without unreasonable delay.

Section 581 of the Criminal Code further codifies this right by outlining the specifics of what must be included in an information (charging document) for it to be valid. Subsection 581(3) indicates that the information must contain sufficient detail of the circumstances of the alleged offence to give the accused reasonable information to understand what they are being accused of.

What is the Right to be Informed without Unreasonable Delay of Offence?

The right to be informed, without unreasonable delay, of the offence charged means that once police deicide to lay a charge against an individual, they must tell the individual the specific offence(s) they have been charged with in a reasonable time. The accused must also be provided with particulars of the alleged offence which may include where and when the offence occurred.

Section 11(a) ensures accused persons know exactly what they are being accused of so they can properly prepare a defence. This ensures that defendants can provide full answer and defence to all charges against them and that they ultimately receive a fair trial.

When is the Right Triggered?

The right to be informed without unreasonable delay of the offence charged is triggered immediately once a charge is laid against an individual. Once a charge is laid, the accused must be notified within a reasonable time.

How much time is Considered Reasonable?

Whether a delay is considered reasonable in the circumstances will be determined on a case-by-case basis. When making this determination, the court will consider four factors:

  • Length of delay
  • Waiver of time periods
  • Reason for delay
  • Prejudice to the accused

The Court will calculate the length of delay from the date the accused was charged to the date they were informed of the charge. They will then subtract any waiver of that time. An accused can be said to have waived part of delay where they did anything to prevent themselves from being informed of the charge. The Court will hear evidence regarding the reason for the delay and will examine how the delay has negatively impacted the accused.

Example

Charges are laid against person A in May of 2022, however, he is not notified of the charges until December 2022. In June of 2022, person A invests all his life savings into a gas station business that he must work at personally until he can break even on the business. As a result of not being notified of the charges for several months after they were laid, person A loses his business and all his life savings after being sentenced to prison for the charges, leaving him unavailable to work. Person A has been prejudiced by the delay and his 11(a) right has been violated. He is entitled to a remedy under section 24(1) of the Charter.

What happens if the Right is Violated?

Once the right is triggered, the accused person must be notified of the specific charge(s) within a reasonable time. If there is an unreasonable delay that causes prejudice to the accused, the accused right has been violated.

The accused must then bring a pre-trial motion arguing that their section 11(a) right has been violated and requesting the court order a remedy pursuant to section 24(1) of the Charter.

In addition to showing that there was a delay between the charges being laid and the accused being sufficiently notified of the charges, the accused must also show that they have been prejudice by the delay. If the accused in unable to show that they have been prejudice, the court will be unable to grant a remedy under section 24(1) of the Charter.

Cases

R. v. Cancor Software Corp. et al., 1990 CanLII 6817 (ON CA)

In the case of R. v. Cancor Software Corp., the Ontario Court of Appeal dismissed the applicants appeal, indicating that their section 11(a) Charter right had not been violated. Cancor Software Corp. made the application arguing that their right had been violated because the Crown waited several months to lay charges after receiving information that the company had committed an offence. The Court confirmed that section 11(a) does not require that a person be charged within a reasonable time of the Crown becoming aware of a crime. Section 11(a) is only triggered once a charge has been laid.

R. v. Delaronde, [1997] 1 SCR 213

In the case of R. v. Delaronde, the Supreme Court of Canada found that the accused’s 11(a) right had not been violated, despite a 20-month delay between the laying of the charge and the accused being notified. They argued that because the accused was not prejudice in any way by the delay, they could not offer a remedy pursuant to section 24(1) of the Charter.

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