Section 11(b) of the Canadian Charter of Rights and Freedoms provides that:
Any person charged with an offence has the right to be tried within a reasonable time.
Section 11 (c) provides that:
Any person charged with an offence has the right not to be compelled to be a witness in proceedings against that person in respect of the offence.
Finally, section 11 (d) provides that:
Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
The presumption of innocence
In any criminal prosecution, the accused is presumed innocent until proven guilty or pleads guilty. Thus, the onus is on the state to prove the guilt of the accused beyond a reasonable doubt. The onus is on the state to prove beyond a reasonable doubt all the elements of the offence with which the accused is charged.
Reasonable doubt
This expression does not refer to the common sense that we can use every day. Rather, it expresses an idea and concept specific to the legal field.
Moreover, the word doubt cannot be qualified in any other way than reasonable, since any other qualifier would have the effect of lowering the threshold of certainty in question and expressed by the expression “reasonable doubt”.
This expression does not require absolute certainty. Indeed, a residual doubt may remain.
Burden of proof
As a corollary to the presumption of innocence, the burden is on the State to prove the guilt of the accused. The accused does not have the burden of proving their innocence because they are presumed innocent.
The State’s obligation is to prove each elements of the offence, both the material element, actus reus, and the mental element, mens rea, of the offence.
A distinction must be drawn between the evidentiary burden of adducing all the evidence that the prosecution intends to rely on to prove the guilt of the accused and the persuasive burden of proving the elements of the offence beyond a reasonable doubt.
A breach of the presumption of innocence
For certain offences, the Criminal Code provides for presumptions. These presumptions serve to alleviate the burden of prosecution in establishing one of the essential elements of the offence.
While we cannot speak of a reversal of the burden of proof, the onus is nevertheless placed on the accused to establish the fact on a balance of probabilities or to raise a reasonable doubt as to its existence.
The burden is far less onerous than the burden of proving the guilt of the accused beyond a reasonable doubt, but it is still true that the accused must act positively in his or her defence, contrary to the very essence of the presumption of innocence.
The right to silence
The right not to be compelled to testify against oneself is known as the right to silence. This right derives from the presumption of innocence and is intended to ensure that the accused is not compelled to contribute to their own conviction.
This means that the accused is not required to testify against themselves and that their statements cannot be used against them at trial. The accused may choose to testify, but they must be informed of this right and must not be compelled to do so.
The right to be tried within a reasonable time
This principle is important in light of the implications it may have for the accused, the alleged victim and those around them. Waiting for a trial is a source of stress and anxiety. In addition, the accused who is in pre-trial detention has lost their liberty despite the presumption of innocence they enjoys. All of these factors militate in favour of a right for the accused to have his trial within a reasonable time.
The leading case that set the benchmarks for unreasonable delay was Jordan. That case set a presumptive ceiling beyond which the delay becomes unreasonable:
This presumptive ceiling is set at 18 months for provincial court cases and 30 months for superior court cases (or those heard in provincial court following a preliminary inquiry).
The time limit is calculated between the information or indictment and the sentencing. From this calculation, the delays caused by the defence are subtracted. This is the case if the accused waives a claim of delay or if the delay is caused by their conduct. The waiver of time limits may be implicit or explicit, but must always be unequivocal.
Each case is unique and only an experienced criminal lawyer will be able to properly analyze your case by verifying whether your Charter rights have been respected. Contact us in case of arrest without delay.