Delay as a ground for dismissal
- The idea that a Provincial Offences Court may dismiss a traffic ticket, if the matter lasts for too long is fairly widely known, and this is, indeed, the case.
- 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 charges under the Ontario Provincial Offences Act or the Criminal Code of Canada, if there is a delay in bringing the charges to a final resolution at trial.
Procedural requirements
However, many people believe that the right to have a trial within a reasonable time is absolute. Moreover, they think that the court can dismiss a case whenever there is a particular period of delay. Unfortunately, this is not exactly the case: there are certain rules and limitations. They apply to consider whether there had been a delay that should lead to dismissal. Here are some:
Written motion
- The court does not apply the right in question automatically, of its own imperative. The court will consider the delay only if and when an accused makes the appropriate request. The accused must support such a request with the necessary evidence and legal argument. To this end, the defendant or his paralegal should prepare a formal written notice of motion, deliver it to all interested parties and the court within the prescribed period of time before the day of trial. The court will not consider the delay otherwise.
Court Hearing
- The Court considers the motion in a hearing before the trial starts. Hearing requires the presentation of oral arguments by the defence and prosecution. Of course, the quality and validity of the oral arguments are just as important as a proper and well-prepared written notice of motion.
Time of delay
- The legislation and case law do not set any standard period of time which would secure a dismissal of the case. The time varies depending on the type and seriousness of the case and the court location. However, the recent case law suggests a general rule that the court may dismiss a traffic ticket only if the delay lasted 18 months or longer. (Supreme Court of Canada Decision in R. v. Jordan)
Reason for delay
- The reasons for the delay matter. The basic principle is that the court takes into consideration only “systemic” delay. For example, if a delay results from the accused’s own request to postpone the case for whatever personal reason, the court may not count such a delay.
Prejudice
- The time delay in bringing a case to trial is not the only required condition before the court considers dismissal of the traffic ticket. In addition, an accused must show that the delay has caused substantial prejudice to him or her. The accused must prove such prejudice with reliable and convincing evidence. The court will not grant the motion if the delay in the proceedings has no prejudicial consequences for the accused.
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