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Power Sport News, Vol. 11, No. 1, 2007
Speeding Tickets and the Charter
By Daryl
Brown
Have you been issued a traffic violation for speeding while
riding your motorcycle? If you file a Notice to Dispute the ticket,
it is worthwhile to pay attention to the amount of time between
the date of your ticket and the date of your court appearance. Under
section 11 (b) of the Charter of Rights and Freedoms, being
part of the Constitution Act of 1982, everyone has the right
to, "be tried within a reasonable time". The Supreme Court of Canada
in R. v. Morin, [1992] 1 S.C.R. 771 ruled the definition
of 'reasonable time' will vary according to the severity of the
offence and set guidelines for minor provincial offences at eight
to ten months. This means if your case is not brought to trial within
eight to ten months from the date of receiving the ticket, you may
be able to argue the delay was unconstitutional and have your ticket
dismissed. In most cases, the Crown prosecutor will argue delay
was not unreasonable and the onus will rest with you to prove it
was.
When making your argument, the court will
be concerned with four things: the length of the delay; the cause
of the delay; if you waived delay; and the prejudice to you as a
result of the delay. As noted, delay must exceed eight to ten months
and hopefully longer. Your likelihood of making a successful argument
increases the longer the delay. Delay must not arise at your request.
Setting a court date and then adjourning the trial will not add
to the delay. If the Crown applies to delay the trial, you can use
the additional time to your benefit unless you 'waive' your right
to make a Constitutional delay argument at a later date. Therefore,
if you are asked to adjourn your trial for any reason, remind the
court you intend to make an argument under section 11(b) when the
matter is eventually heard. Finally, you will need to show the court
how the length of delay has caused you prejudice. This is perhaps
the most difficult hurdle. Examples will vary in each instance and
could include a lost opportunity in one form or another. The degree
of prejudice may vary from one judge to another.
To
ensure your argument is permitted at trial, you need to give written
notice of your intention to the Crown, the Attorney General of Canada
and the Attorney General of British Columbia at least two weeks
preceding the trial. Notice must state you are seeking a constitutional
remedy under section 24 (1) of the Charter of Rights and Freedoms
based on your right to be tried within a reasonable time under section
11 (b). Notice is easily provided by fax. Ensure you keep a copy
of your letters to show the court if asked by the judge.
*Contact Daryl Brown for more information.
Note: This site is for information purposes
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riding instruction. Circumstances concerning proper riding technique
are subject to change with conditions and experience. Contact your
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Westminster, BC, 604-526-1821 or 604-612-6848. Content provided
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