How do you challenge your speeding ticket using the Charter of Rights? 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”.
UPDATE (July 8, 2016): In a decision by the Supreme Court of Canada, tickets must come to court within 18 months or they should be stayed. In other words, if you don’t get a hearing date in time, your ticket is tossed out. R. v. Jordan  1 SCR 631 is authority to increase the time set out in R. v. Morin (see below).
More importantly, an accused need not prove prejudice to have the ticket stayed. The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Once 18 months have passed, prejudice is deemed to have occurred unless there are exceptional circumstances where the Crown can discharge its burden to justify a delay.
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.
The Supreme Court of Canada in R. v. Morin,  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: (1) the length of the delay; (2) the cause of the delay; (3) if you waived delay; and (4) 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.
*Contact Daryl Brown for more information.
Power Sport News, Vol. 11, No. 1
Written by Daryl Brown
If you or someone you know has been injured, call Daryl Brown directly at 604-612-6848 or toll free at 1-844-BIKE-LAW or send him an for the location nearest you and to receive your free initial consultation.
At Daryl Brown & Associates, you do not pay our fees unless we successfully recover an award. NO RECOVERY. NO FEE.