Delay is a clear enemy to the fair trial of an accused in Canada. When many months or years elapse between an accused’s arrest and the date they stand trial, numerous undesirable consequences follow; memories fade and witnesses move away, die, or become otherwise unavailable. As a result, an accused may suffer an intolerable custodial environment without having ever been convicted of a crime. Section 11(b) of the Canadian Charter of Rights and Freedoms codifies the right of any person charged with an offence to be tried within a reasonable time. In the years following the proclamation of the Charter in 1982, considerable litigation has examined the meaning of the right in practical terms and prescribed a remedy to be applied in cases of a breach. This remedy is the stay of proceedings. The Supreme Court of Canada has ruled that the stay is the minimal remedy available where an accused’s section 11(b) right has been breached.
Where a breach of section 11(b) is established following an application of the test in R v Morin, a trial judge must balance the public interest on the merits against the accused’s right to be tried within a reasonable time. Despite the Supreme Court of Canada’s pronouncement that a breach of this right should be remedied minimally by a stay, this balancing exercise nevertheless allows a trial judge to direct a trial if it serves the public or societal interest. In such a case, other remedies for the breach are theoretically unavailable to the accused, as the stay is the required minimal remedy. This is an unsatisfactory and unnecessary status quo. While the author does not propose a change in the current application of the stay where a fair trial is no longer possible and the only appropriate remedy is a stay of the proceedings, an accused should not be left without any recourse where a breach has occurred and the trial nevertheless proceeds. An accused should be entitled to an alternative section 24(1) remedy in such circumstances. Several alternative remedies are suggested in this paper, including sentence reduction, enhanced credit for pre-sentence custody, damages, and the exclusion of evidence. The Supreme Court of Canada pronouncement of the stay as a minimal remedy should be revisited, while alternative remedies should be examined for their application in unreasonable delay cases.