What is an 11(b) Application?
Why is it important?
What are the benefits?
The Canadian Charter of Rights and Freedoms is a piece of legislation which, as the title suggests, guarantees and entitles Canadians to basic rights and freedoms to be given from the government. Section11(b) of the Charter states that “Any person charged with an offence has the right to be tried within a reasonable time” (laws-lois.justice.gc.ca/eng/charter/page-1.html). Consequently, this right applies to any person charged with a traffic offence and awaiting trial in Canada. Her Honouarble Chief Justice Mclachlin has stated that “As the delay increases, swift, predictable justice, which is the most powerful deterrent of crime, vanishes. The personal and social costs are incalculable”. She further states that “people need prompt resolution so they can get on with their lives. Often, they cannot wait for years for an answer. When delay becomes too great, the courts are no longer an option. People look for other alternatives. Or they simply give up on justice” (www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm07-03-08-eng.asp).
In order to use and demand that your rights contained in the Charter be respected, it is important that an enforcement mechanism exist, otherwise your rights are rendered meaningless. Such a tool is provided in s. 24(1) which states that “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances” (laws-lois.justice.gc.ca/eng/charter/page-1.html). In order to apply for a remedy, such as a stay of proceedings of the matter from the court, a motion must be filed prior to the trial date stating your intention to argue the issue. As such, an 11(b) application is the appropriate instrument to use in order to enforce your right to be tried within a reasonable time, under s.11(b) and s. 24(1) of the Charter.
An 11(b) application is very important and should be thoroughly considered. The Charter is a landmark piece of constitutional legislation which ultimately defines the relationship between Canadians and their government. It allows citizens the ability to demand that certain actions or in-actions be taken by their elected representatives, and entrusts the court with the role of enforcer. Due to the power conferred upon it by s.24(1) of the Charter, the court possesses the comprehensive ability to grant any remedy to an accused that it determines to be “appropriate and just in the circumstances” (laws-lois.justice.gc.ca/eng/charter/page-1.html). Case law has demonstrated that this remedy is often a stay of proceedings, which is a dismissal of your traffic charge. As such, a successful 11(b) application is of tremendous benefit to you, and should be used in every case which an argument can logically be made that there existed too much time delay to bring the case to trial. The length of delay which will qualify as a breach of s.11(b) will be determined by the court by analyzing case law, your particular situation, and several other factors listed and explained below.