Power Sport News, Vol. 11, No. 1, 2007
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 only and is not meant to be construed as legal advice or motorcycle riding instruction. Circumstances concerning proper riding technique are subject to change with conditions and experience. Contact your local riding school for more information. For legal consultation, contact Motorcycle Lawyer, Daryl Brown @ 400-713 Columbia St., New Westminster, BC, 604-526-1821 or 604-612-6848. Content provided by Motorcycle Lawyer.ca is not to be reproduced without authorization. Motorcycle Lawyer.ca is a pending trade mark and any unauthorized use of the name or likeness is prohibited.
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