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I have been waiting for my day in court on criminal charges…

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I have been waiting for...
I have been waiting for "my day in court" on criminal charges for almost 44 months now. Most of that (40 months) on "house arrest". We have made several dates for trial but it keeps on getting put over for at least an additional 6 months each time. I have asked my lawyer to make a 11b charter motion. She doesn't think it will be sucessfull due to the caseload of the particular court I have to attend.
My question is does the caseload of a particular court have influence on a 11b charter motion?
Submitted: 8 years ago.Category: Canada Law
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Answered in 5 minutes by:
6/15/2010
Lawyer: rayanswers, Canada Law Answer Team replied 8 years ago
rayanswers
rayanswers, Canada Law Answer Team
Category: Canada Law
Satisfied Customers: 48,804
Experience: Canada Law Expert
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Thanks for your question.Put such a request in writing here to your lawyer.Certainly it may be worth trying here to seek such motion.You always have the right to request it here and be persistent if you think it is appropriate given the facts of your case.Certainly I can understand your frustration.Renew your request here with your counsel to file such a motion and hope for the best.This may well be means to try and resolve this matter favorably.

Reference.

http://www.ottlegal.com/en/11bApplications.html

Edited by RayAnswers on 6/15/2010 at 4:08 AM EST
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Lawyer: Debra, Lawyer replied 8 years ago
Debra
Debra, Lawyer
Category: Canada Law
Satisfied Customers: 105,984
Experience: Lawyer
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This is a Canadian law question but the expert who initially answered you is a US law expert.

I apologize for that.

Your question has appeared on our list fortunately.

You are correct in considering an 11(b) Charter argument. You have, as you know, by law, a right to a speedy trial.

The fact that the Courts are overburdened is not a reason that you cannot bring this challenge. To the contrary, that's really the whole point. If there is a valid reason that you cannot get your trial or if the reasons are at least partially because of you or your counsel that's one thing but the fact that the Courts are overburdened is not an excuse at all. It's the whole point of the challenge.

I would suggest instructing your lawyer to serve the notices for a constitutional challenge at once.

I hope that helps and I do apologize for the mix-up leading to a lengthy delay in your getting an answer.
Debra
Debra, Lawyer
Category: Canada Law
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Customer reply replied 8 years ago
Thanks for your answer. I wasn't sure what to make of this site after I got the first "answer" to this question. Perhaps the law / constitution is different in the US than it is in Canada.

I have left voice mail for my lawyer to proceed with this at once. I had mentioned this too her previously which is when she told me that she didn't think it would be successful. The SCC has set a "guideline" I believe of 18 or 19 months as being "acceptable" from the time that the charges are laid until the start date of trial. As in my case the 44 month wait far exceeds that "guidline" and I'm concerned why my lawyer does not think this challenge would be successful. When I've brought this to her attention, well she's the type that says a lot without saying too much.

Are there additional resources online specifically for the 11b charter motion (ie: application templates, examples of arguments, case law, etc.) that you can direct me too for my research?

Thanks again for your time.

Kevin
Lawyer: Debra, Lawyer replied 8 years ago
Askov which is likely the decision you've heard about was affirmed later on in a case called R. v. Finta. It was held that section 11(b) included the right to a speedy trial.

You can find these cases and do some more research on your own on a site called canlii.

Just so you understand the process. Your lawyer has to provide what is called a "Notice of Constitutional Challenge" and must serve:

The notice has to go to:

Provincial Prosecutors Office
Ontario (Provincial) Court of Justice
The Attorney General of (Province)_________ (Constitutional Law Branch)
The Attorney General Of Canada.
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