Accused charged in 2012 and convicted in 2017 of tax evasion and fraud. Post conviction (at the sentence hearing) the accused brought a stay application on the basis of an 11(b) breach. The application alleged an unreasonable delay prior to conviction.
Held: Application dismissed.
“A remedy for unreasonable delay pre-conviction is only available post-conviction in an extraordinary case”. Absent exceptional circumstances, an 11(b) Notice ought to be filed well in advance of trial. The purpose of the right is to prevent the continuation of prejudice and trial unfairness. As per Cody, 2017 SCC 31: “Defence counsel are … expected to ‘actively advance their clients’ right to a trial within a reasonable time”. At a minimum, the court must be satisfied that it was “understandable and excusable” to have not applied for the 11(b) remedy pre-conviction: Bosley, 1992 CanLII 2838 (ONCA). Test not met.
G. Worobec – Defence Counsel