Welcome to Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! This week, lawyer Kyla Lee discusses unreasonable delays in cases that were appealed or received a mistrial causing them to go over the presumptive ceiling for delays set out by the Supreme Court of Canada.
Acumen Law Corporation lawyer Kyla Lee gives her take on a made-in-Canada court case each week and discusses why these cases should have been heard by Canada’s highest court: the Supreme Court of Canada.
The Canadian Charter of Rights and Freedoms protects a person’s right to be tried for an offence within a reasonable time, but what happens if a case gets slowed down by appeals or a mistrial?
This is what happened in the case of Khalid Gakmakge. He was convicted at trial, he appealed, then his new trial had a mistrial and had to be rescheduled. By the time the trial was scheduled it was outside of the Supreme Court of Canada’s presumptive ceiling for delay. Mr. Gakmakge brought an application, arguing his right to be tried in a reasonable manner had been denied.
In cases such as these, delays can be labelled as discrete events, which are exceptional events that result in unforeseeable or unavoidable developments that slow down a case’s progression through the court system. These can happen even when all parties make an effort to maintain a reasonable timetable for the case. By characterizing this case as solely an issue of discrete events, thus taking the case outside previously established frameworks, the Supreme Court of Canada has failed to recognize there are reasons cases can be delayed that are not an accused person’s fault. When can discrete events be considered unreasonable? And to what extent should mistrials and appeals be considered an unreasonable delay?
It was important for the Supreme Court of Canada to take this case to clarify what does and does not offend the delay rule. Without this clarification, anyone who faces a mistrial or appeal can argue their delay rights have been violated.
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