The Canadian Charter of Rights, section 11(b) entitles anyone charged with a crime to the right to be heard within a reasonable time. After an “unreasonable delay”, an application can be made for a constitutional remedy, alleging that your charter rights have been infringed or denied.
According to the Charter, an application of this type must be made to a court of competent jurisdiction. Since the applicant must have been charged with a crime to qualify for a speedy trial, the application will be made to the BC provincial court which is hearing the case. The application must be served on both the Attorney General of Canada and the Attorney General of BC.
According to section 8(4) of the Constitutional Question Act:
- (1) The notice must:
- be headed in the cause, matter or other proceeding,
- state
- the law in question, or
- the right or freedom alleged to be infringed or denied,
- state the day on which the challenge or application under subsection (2) or (3) is to be argued, and
- give particulars necessary to show the point to be argued.
- (2) The notice must be served at least 14 days before the day of argument unless the court authorizes a shorter notice.
The application is made using a Notice of Application from the Supreme Court civil forms list (the provincial court uses this form in criminal proceedings). The section of the Charter that enables the application is 24(1). This is the correct application for a constitutional remedy for a traffic violation or other matter being heard in the Provincial Court when a stay is sought based on unreasonable delay. The specific application form necessary for remedies sought under other charter sections or for other offences varies.
Constitutional remedies for other sections of the Charter will be filed with the appropriate court of jurisdiction. A discussion about what courts qualify can be found in Constitutional Law of Canada by Hogg, section 40.2 in the 5th edition. In order to qualify, a court must have jurisdiction over the case at hand and the power to grant the remedy being sought.
Noteworthy Cases
R. v. Askov
- criteria for whether the rights of an accused have been infringed
R. v. Morin
- clarification of the test set out in R. v. Askov
R. v. Finta
- period of time for unreasonable delay begins when the charge is laid
- Constitution Act - Canadian Charter of Rights and Freedoms – Justice Laws
- Constitutional Question Act, RSBC 1996, c.68 – BC Laws
- Notice of Application – BC Criminal Court Forms
- R. v. Askov [1990] 2 SCR 1199, 1990 CanLII 45 (SCC) – CanLII
- R. v. Morin, [1992] 1 SCR 771, 1992 CanLII 89 (SCC) – CanLII
- R. v. Finta, [1994] 1 SCR 701, 1994 CanLII 129 (SCC) – CanLII
- Constitutional Law of Canada by Peter W. Hogg – onsite at Courthouse Libraries
- Serving Legal Documents on the Attorney General of BC – Government of BC
- Serving Legal Documents on the Attorney General of Canada – Justice Laws