How Does a Criminal Justice Lawyer Deals with Delay in Trial

In Canada, the right to a timely trial is a fundamental legal protection enshrined in Section 11(b) of the Canadian Charter of Rights and Freedoms. This guarantees that anyone charged with a criminal offence has the right to be tried within a reasonable time. However, delays in the criminal justice system are common due to court backlogs, procedural issues, prosecutorial delays, and complex cases. A criminal justice lawyer plays a crucial role in addressing and mitigating these delays to ensure that justice is served efficiently. This blog explores how Canadian criminal lawyers tackle trial delays and protect their clients' rights.

1. Relying on the Jordan Framework

One of the most significant developments in Canadian law regarding trial delays is the R v Jordan (2016) decision by the Supreme Court of Canada. This ruling established presumptive time limits for completing criminal trials:

• 18 months for cases tried in Provincial Court.

• 30 months for cases in Superior Court or involving a preliminary inquiry.

If a case exceeds these time limits, the defence lawyer can file a Jordan application, arguing that the delay violates the accused's Charter rights under Section 11(b). If successful, the court may stay the proceedings, meaning the charges are dropped permanently.

How Lawyers Use the Jordan Ruling?

• Closely track case timelines to identify unreasonable delays.

• File a motion to dismiss if delays exceed the Jordan thresholds.

• Argue that the delay has caused prejudice to the defendant (e.g., prolonged stress, job loss, or evidence deterioration).

2. Filing a Section 11(b) Charter Application

If a trial is delayed beyond reasonable limits, a criminal justice lawyer can formally challenge the delay by filing a Section 11(b) Charter application. The court will then examine the reasons for the delay and decide whether it justifies a stay of proceedings.

The attorney must demonstrate that:

• The delay exceeds the Jordan time limits.

• The delay was caused by the Crown (prosecution) or the court system, not the defence.

• The delay has negatively impacted the accused, such as affecting their employment, mental health, or ability to present a fair defence.

If the judge agrees that the delay is unjustified, the case may be dismissed, and the accused will be free of all charges.

3. Challenging Prosecutorial and Institutional Delays

Not all trial delays are valid. A criminal justice lawyer will analyze whether delays were caused by prosecutorial misconduct or inefficiencies within the legal system.

Common Causes of Delay and Legal Responses:

• Overloaded Court Dockets:

 If court congestion causes excessive delays, the defence can argue that the state failed to allocate proper resources.

• Crown's Failure to Disclose Evidence on Time: 

The prosecution must legally disclose all evidence to the defence. If they delay this process, the defence can seek a stay of proceedings or request to exclude the evidence.

• Inefficient Scheduling: 

If trial dates are pushed back due to poor scheduling, the defence can demand an expedited trial date.

By actively challenging these delays, a lawyer can prevent unjustified postponements and ensure their client receives a fair and timely trial.

4. Seeking Bail or Release Pending Trial

Delays can be especially harmful if a defendant is in custody while awaiting trial. To prevent extended pre-trial detention, a criminal justice lawyer can:

• Request Bail: 

Argue that the accused should be released while awaiting trial.

• File a Bail Review Application: 

If bail was previously denied, the lawyer can request a review before a higher court.

• Challenge Bail Conditions:

If strict bail conditions are causing hardship, the lawyer may seek modifications to ensure fairness.

By securing pre-trial release, a lawyer can help the accused maintain their job, family life, and mental well-being while fighting the charges.

5. Negotiating a Resolution to Avoid Further Delays

In some cases, prolonged delays benefit the defence to explore alternative solutions, such as:

• Plea Bargains: 

Negotiating a lesser charge or reduced sentence in exchange for an early resolution.

• Diversion Programs: 

If applicable, seek a rehabilitative program instead of proceeding to trial.

• Case Dismissal: 

If delays are excessive, the lawyer may push for charges to be withdrawn instead of going to trial.

Trial delays can sometimes benefit the accused. However, a skilled lawyer will evaluate whether an early resolution is the best action.

6. Ensuring No Delay is Caused by the Defence

A defendant's own actions can sometimes contribute to trial delays. A responsible criminal justice lawyer ensures that:

• The accused attends all court dates and meets deadlines.

• Defence motions and filings are submitted on time.

• Unnecessary adjournments are avoided unless legally justified.

If the defence causes the delay, it weakens any potential Jordan application and can make it harder to challenge prosecutorial or institutional delays.

7. Pushing for Judicial Intervention

When delays become excessive, a criminal attorney can request judicial intervention to force the case to proceed. This includes:

• Requesting a case management hearing to address trial scheduling issues.

• Asking the judge to set strict deadlines for evidence submission and trial proceedings.

• Filing motions to expedite the trial process, ensuring that it does not drag on unnecessarily.

Judges can prioritize delayed cases, especially if the accused suffers undue hardship.

Conclusion

Trial delays are a serious issue in the Canadian criminal justice system, but skilled defence lawyers have multiple strategies to fight them. Whether through Jordan applications, Section 11(b) Charter challenges, bail requests, or judicial intervention, lawyers work to ensure their clients receive fair and timely justice. If you or someone you know is facing a delayed criminal trial, seeking legal representation early is essential to protecting your rights. An experienced criminal defence lawyer can identify unfair delays, challenge prosecutorial inefficiencies, and fight to get the charges dropped if necessary.