Steps to Create an 11(b) Application

After deciding to file an 11(b) application your first step is to order transcripts of each and every court date relating to your matter. The purpose of doing so is to determine the cause of any adjournments upon which you are relying on as the basis of your claim, and to ensure that these delays have been either at the prosecution’s request, or as a result of an institutional delay. It is a wise idea to order these transcripts as soon as possible as they often take awhile to arrive, and you never want to find yourself in a time crunch when preparing such comprehensive material. If after reviewing the transcripts you determine that in fact the requests for adjournments have been from yourself, it is wise to stop further 11b) application proceedings as it will not succeed. If, however, the arrival of your transcripts cements the fact that delay is not stemming from defence requests, you can further proceed, and a copy of each of the transcripts will be submitted as a component of your application.

Your next step to take after ordering and receiving the transcripts is to create an Affidavit. This is a statement of the facts that led to you filing an 11(b) application. This page will state the court that possesses jurisdiction, who the case is between (ex. Her Majesty the Queen and yourself), and will contain the title of “Affidavit of (your name)”. Outlined below will be statements indicating the various dates you appeared in court, when disclosure requests were made, and the reasons behind any adjournments granted. Each statement should be numbered to provide clarity. Lastly, you should include a statement which explains that you are troubled by the uncertainty of the situation, and the possibility of accumulating demerit points, a driving record, and an increase in insurance rates. This will assist you in arguing that you have been prejudiced as a result of the delay, which is the fourth factor of Morin's analytical framework. This page should be affirmed by you, and contain both your signature and the signature of the Commissioner for Taking Oaths who you are swearing this in front of.

Next, you will want to create a Schedule 2. This document states the order you are seeking. In this case this would be an order declaring that the applicant’s rights under section 11(b) of The Canadian Charter of Rights and Freedoms have been violated due to an unreasonable delay to trial. Furthermore, if disclosure has not been provided you can include an additional order declaring that the applicant’s rights under section 7 of The Canadian Charter of Rights and Freedoms have been violated due to the prosecution’s failure to provide complete disclosure before trial. After declaring your orders, you will state the remedy you are seeking, which is a stay of proceedings under s. 24(1) of the Charter. Next, you will apply the four factors found in Morin's analytical framework discussed above to your case. To refresh, you will state the length of delay that will be caused, any waivers of time periods by yourself, and the reasons for delay, including any inherent time requirements, defendant actions, crown actions, institutional delay, and other reasons. The last factor you will refer to is any prejudice the delay has caused to the accused. For each factor you state, it is wise to cite case law which supports your position and which you wish to rely on. Some significant cases which are often relied upon are R. v. Morin, R. v. Omarzadah, R. v. Mastroianni, and R. v. Dehaney.

After creating the affidavit your next step is to serve it. Under s.109(1) of the Courts of Justice Act, when bringing notice of a constitutional question the application must be served on the Attorney General of Ontario, the Attorney General of Canada, and the prosecutor handling your case (www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90c43_e.htm#BK148). It is imperative to note that a notice of a constitutional question should be served “as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise”, under s. 109(2.2) of the Courts of Justice Act (www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90c43_e.htm#BK148).

In order to serve it, several steps have to be completed, including the creation of a Notice of Constitutional Question document. This page states the court which has jurisdiction, who the case is between, and what the claim is for, which in this case is a remedy under s.24(1) of the Charter due to an act or omission of the Government of Ontario. Additionally, where, and when the constitutional question is to be argued must be stated on this page, as well as the legal basis for the claim (you could write “See Schedule 2”), and the addresses of the the three parties you need to serve it to. You will serve a copy of the Notice, the Affidavit, the Schedule, and if you so choose, a copy of each of the cases you are relying on.

Once you have served the parties, your next step is to create your affidavit of service. This document states that you have served the Attorney General of Ontario, the Attorney General of Canada, and the assigned prosecutor. You must then swear this to be true, sign the document, and have the Commissioner for Taking Oaths sign it as well. This page will be included in your 11(b) application, and will serve as proof that you have done your due diligence in ensuring that all who require a copy of the affidavit have received it.

Now that you have completed the components of the application your next step is to put it all together. In order to do this you must create an index.This first page should state the court which has jurisdiction, who the case is between (ex. Her Majesty the Queen and yourself), and contain the title “Notice of Constitutional Question”. This page is essentially a title page and a table of contents for your 11(b) claim, and lists the order of the documents contained within. It is wise to use alphabetic tabs instead of numbering the pages, as the application will be fairly large when it is completed. A good way to organize your 11(b) application is to start with the applicant's notice, followed by the affidavit and affidavit of service, then the schedule, transcripts, any disclosure requests sent to the crown if applicable, followed by a copy of all the cases you wish to rely on to argue your 11(b) application. The last page of the application will be the backer. This blue-coloured page faces states the court of competent jurisdiction, who the case is between, and what is being argued, in this case a notice of constitutional question. Additionally, if you have retained legal representation their contact information will be located on the backer. This page faces on the outside of the application so that both the front and the back state the name of the case, and the fact that a notice of constitutional question is being argued.

You have now completed your 11(b) application. Your next step is to appear in court at the correct date, time, and location, and present your case. Every Canadian citizen possesses the constitutional right to be brought to trial within a reasonable time, and is provided a mechanism to do so through an 11(b) application. Since matters revolving around the issue of unreasonable delay can be quite complicated and not everything can be touched upon in an article, it is always wise to consider retaining legal representation. Individuals who are educated in the law possess the requisite knowledge and experience in such matters, and can help you navigate the legal system confidently and efficiently.