The COVID-19 pandemic invaded many aspects of people’s life. The justice system is one of them. Delays in bringing traffic court cases to a speedy conclusion become more and more common. The public health requirements to limit the spread of the infection are the main cause of these delays.
The Canadian Charter of Rights and Freedoms provides for an individual’s right to have a trial within a reasonable time. The court can dismiss a traffic ticket, like any other charge under the Ontario Provincial Offences Act or the Criminal Code of Canada, if there is a delay in bringing the charge to a final resolution at trial. There are certain rules and limitations which apply to the consideration of whether there had been a delay that should lead to dismissal:
How the Charter applies
- There is no automatic dismissal for the delay. An accused must make a formal motion supported by her/his affidavit and other evidence.
- The reason for delay matters. There must be a systemic delay that is not the accused’s fault. For example, the accused’s request for adjournment due to some personal reason does not qualify as a systemic delay.
- The accused must convince the court that the delay causes substantial prejudice to her or him.
More details about these rules and limitations are in this article https://spectrumparalegal.com/delay-in-traffic-ticket-trials-how-long-is-too-long/.
However, there has been some development of the case law since we published that article. The most important of them is the landmark Supreme Court of Canada case, R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631. This ruling settles many issues which were subject to lower courts’ discretion in the past. We single out two points that are most relevant to the traffic court cases.
Reasons and length of delay
First, the Supreme Court has ruled that if a delay is due to an exceptional circumstance that is a so-called discrete event (such as illness or unexpected event at trial), the delay reasonably attributable to that event is subtracted from the total delay.
The COVID-19 pandemic falls within this definition of reasonably unforeseen and unavoidable circumstances. As such, the court may not dismiss a traffic case if the only delay is due to COVID-19.
Second, the Supreme Court of Canada has set a minimum delay time that is enough to justify the dismissal of the case. It is 18 months for cases in the provincial court, which includes all traffic matters. The Supreme Court named this time “the presumptive ceiling.” Traffic courts follow this rule. It means that if the time between issuing a traffic ticket and the end of the trial is less than 18 months, the dismissal of the charge for the delay is unlikely.
Whether or not a dismissal of a traffic charge for the delay is possible, it is essential to consider all relevant issues. Overall, every case is, as always, different. Please feel free to contact us for a free assessment of your case.
