Is delay a legal tactic or a sign of an inefficient system?

Three lawyers standing outside a courtroom in front of three pillars.
Three lawyers standing outside a courtroom in front of three pillars. Stock photo by Getty Images.

It’s the accident that made international news: the deaths of the three Neville-Lake children and their grandfather north of Toronto, Ont. last month.

The bail hearing for the alleged drunk driver, Marco Muzzo, was set for October 19. His lawyer asked the court to delay the bail hearing until November 12, because he needed more time to review disclosure, thus delaying the case.

Delay is sometimes used as a legal tactic to buy time in a case or to try to get a case dismissed. Sometimes delay is inevitable because the system is backlogged and/or a case is handled inefficiently.

Whether it’s a tactic or not, Canadian courts absolutely loathe delay and make it very clear that they do not condone it: neither from the Crown nor from the defense.

Crown delay

When the Crown – meaning government lawyers, also called prosecutors – is to blame for delay within the judicial process in criminal cases, this can give rise to a s. 11(b) Charter of Rights challenge.

S. 11(b) is the “proceedings in criminal and penal matters” section. It states “any person charged with an offense has the right…(b) to be tried within a reasonable time.”

The courts tend to be tough on the Crown for delays – because it can cause serious problems with the case and lead to charter challenges.

The case R. v. Frazer, saw such an s. 11(b) challenge due to Crown delay. The Supreme Court of Canada pointed out that the Crown was responsible for “three months of the delay,” and later on added: “while in this case, the Crown could perhaps have been more diligent and efficient…”

Defense Delay

Just as with the Crown in criminal cases, the courts don’t like kindly upon delay caused by a Plaintiff in criminal or civil cases.

Furthermore, even where there is a Crown delay, if the defence contributed to the delay, it may hurt the defence’s client when the defence tries to get the case dismissed.

In R. v. Collins; R. v. Pelfrey, the Supreme Court noted “the fact that both the Crown and the defence contributed to delays leading up to the preliminary inquiry.” This was a case about an unsuccessful application to the court to stop criminal proceedings, because too much time had passed to hear the case due to Crown delay.

Defence delay was certainly not the only factor that made the defence lose, but it contributed to it.

Few lawyers use delay as a practice, but when they do its frowned upon by the legal community and seen as bad practice.

For instance, New York Lawyer Daniel L. Abrams writes: “While some defendants or “deep pocket” litigants will see stalling and delay as a beneficial tactic, protracted litigation typically benefits nobody but the lawyers. Purposeful delay of a litigation is both unethical (though seldom punished) and self-defeating.”

Legal test for delay

As a case can be dismissed for delay, the courts take it very seriously, as they have to weigh the rights of the accused with administrative efficiency.

The point of needing to have a case heard within a reasonable time is that you cannot deprive a person’s freedom for a long period of time without making a case against him or her.

However, the other side of the coin is that if the crime is very serious, you also cannot let a person go just on the basis of delay. There is a big difference between stealing an apple and murdering a human being.

So, the courts have devised a three-part test to weigh the factors that go into dismissing a case because of undue delay, as in the case Bell v. Bell Estate:

  1. Was there an excessively large delay?
  2. Was the delay inexcusable?
  3. Is the defendant likely to be seriously prejudiced by the delay?

It should be observed, by looking at the three questions, that the court sets a high threshold for delay. So, if lawyers use delay as a defence tactic, it could actually backfire on their clients - and in many cases it’s not enough to dismiss their client’s case.

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