Paragraph 11(a) – Right to be informed without unreasonable delay of the specific offence charged

Provision

11. Any person charged with an offence has the right:

  1. to be informed without unreasonable delay of the specific offence;

Similar provisions

The requirement to provide notice of the specific offence is largely codified by section 581 of the Criminal Code, which sets out minimum requirements for sufficiency of an information in the context of criminal proceedings.

Similar guarantees to that in paragraph 11(a) are found in article 14(3)(a) of the International Covenant on Civil and Political Rights and article 40(2)(b)(ii) of the Convention on the Rights of the Child, both of which are international human rights instruments that are binding on Canada.

Purpose

Paragraph 11(a) provides two forms of constitutional protection to persons charged with an offence: (1) the right to receive notice of the specific offence; and (2) the right to be informed without unreasonable delay (R. v. Cisar, 2014 ONCA 151 at paragraphs 11-12).

Paragraph 11(a) ensures that a person charged with an offence knows the exact charge that they face and will be able to provide a full answer and defence. It also ensures that an accused is able to challenge the authority of the state to subject them to the criminal process (R. v. Delaronde, [1996] R.J.Q. 591 (Qc. C.A.), aff’d [1997] 1 S.C.R. 213; Cisar, supra at paragraphs 11-12).

Analysis

1. Charged with an offence

See the discussion in the section 11.

2. Scope of protection

Paragraph 11(a) should be distinguished from paragraph 10(a), which obliges authorities to inform detainees of the reason for their detention. Paragraph 11(a) provides a more specific right to a person to be informed of the exact offence for which they stand charged.

In general, paragraph 11(a) provides fairly narrow protection, ensuring only that information about the specific offence for which an accused stands charged is provided. Most of the attempts to argue for a more expansive interpretation have failed (see R. v. Cancor Software Corp. (1990), 74 O.R. (2d) 65 (Ont. C.A.), leave to appeal to S.C.C. refused, 61 C.C.C. (3d) vi).

3. To be informed

The right to be informed under paragraph 11(a) only arises once a person has been charged with an offence (R. v. Heit (1984), 7 D.L.R. (4th) 656 (Sask. C.A.); Cancor Software, supra).

Service of a summons, information notice or execution of an arrest warrant will meet the notification requirement in paragraph 11(a). However, the notification requirement does not require a formal information process. Informal methods such as communication by fax or telephone will also suffice, so long as it is established that the information was properly received (Delaronde, supra).

4. Without unreasonable delay

Courts analyze delay under paragraph 11(a) with reference to the same factors as delay was assessed pre-R. v Jordan under paragraph 11(b) (right to be tried within a reasonable time), with the necessary adjustments. The factors to be taken into account in determining whether the delay was unreasonable are: (1) the length of the delay; (2) waiver of time periods; (3) the reasons for the delay; and (4) prejudice to the accused (Delaronde, supra, also see R. v. Jordan, 2016 SCC 27 for the new paragraph 11(b) framework).

(i) Length of the delay: The calculation of time to determine if a delay is unreasonable begins at the time the charge is laid and ends at the time the person is informed of the offence (R. v. Hill, 1993 ABCA 26 at paragraph 35; Delaronde, supra).

Delay must be assessed according to the circumstances of each case. The delay may be so short that it is manifest that paragraph 11(a) was not infringed, or, conversely, it may be manifest that paragraph 11(a) was infringed in cases of egregious delay (Delaronde, supra).

Periods of 10 months (R. v. Desjarlais, 2014 SKPC 154 at paragraph 8), 20 months (Delaronde, supra) and 3 1/2 years (F.J.H., supra) have been viewed as prima facie unreasonable.

(ii) Waiver of time periods: Waiver of a period of time in the calculation of delay could be found if an accused were consciously to act so as to prevent authorities from informing him or her of the offence. The waiver would have to be “clear and unequivocal” and done with full knowledge of the right one was waiving (Delaronde, supra. See also Hill, supra.

(iii) Reasons for the delay: Regard must be had to the reasons for which the information was not conveyed, including an examination of the actions of the accused, the actions of the Crown, and the availability of institutional resources. The extent to which authorities exercised due diligence to inform the accused is a relevant factor (Gill, supra at paragraphs 197-211; Desjarlais, supra at paragraph 13; Hill, supra).

(iv) Prejudice to the accused: Prejudice has been described as the preponderant factor (Delaronde, supra). Paragraph 11(a) protects the accused from prejudice to his or her right to make full answer and defence, or right to a fair trial (Cancor Software, supra; Delaronde, supra; Cisar, supra at paragraph 16). Applying the Supreme Court of Canada’s decision in R. v. Godin, [2009] 2 SCR 3, the Ontario Court of Appeal has decided that the risk of prejudice to fair trial rights may be inferred from lengthy delay. An accused does not have to show actual prejudice to his or her fair trial rights. However, inferred prejudice may be rebutted, for example, in a case where credibility is not at issue and the delay has not affected the accused’s ability to cross-examine effectively (Cisar, supra at paragraphs 24-27).

In addition, where an accused can demonstrate "economic prejudice", in that the delay caused him or her financial harm, a violation of paragraph 11(a) may also be present. Accused persons have the right to be informed rapidly of the charges against them so that they can make important decisions relating to their family or professional life (Delaronde, supra).

5. Of the specific offence

The right to be informed of the “specific offence” means the right to be informed of “the substance of the offence and of the details of the circumstances surrounding the commission of that offence” (Delaronde, supra; see also Cancor Software, supra). The provision of information must substantially meet the requirements of subsection 581(3) of the Criminal Code (re: details for counts in an indictment) (Delaronde, supra).

The Ontario Court of Appeal has held that once charges have been laid, the Crown can lay additional related charges at a later date without offending paragraph 11(a). According to the Court:

[…] s. 11(a) does not require that an individual be charged with an offence within a reasonable time of the Crown’s having knowledge of the offence. It merely requires that once a charge is laid, the accused must be provided without unreasonable delay with the information necessary to enable him to proceed appropriately with his defence. (Cancor Software, supra. See also Delaronde, supra; R. v. Van Wyk (1999), 43 W.C.B. (2d) 371 (Ont. S.C.J.) at paragraph 192, aff’d [2002] O.J. No. 3144 (C.A.))

The Ontario Court of Appeal also decided that there was “no merit” to an argument that sections 548 and 549 of the Criminal Code violate paragraph 11(a). These provisions permit a judge at a preliminary hearing to commit an accused to trial for indictable offences not included in the original indictment but arising from the same series of events (Cancor Software, supra).

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