Prejudice to the Accused

The primary purpose of section 11(b) is to protect your rights under the Charter, specifically section 7, the right to life, liberty and security of the person, and section 11(d) the right to a fair trial.

You have to show how the delay from offence date to trial date affected you in these areas.

Technically you are not required to provide evidence of prejudice. The fact that you have been charged with an offence that requires an appearance before the court causes some level of anxiety, possible time off work and cost. The prejudice is assumed to exist, even if only slightly. (See R. v. Allen, 2009 and R. v. Dehaney, 2005.)

In the landmark ruling R. v. Morin, Justice Sopinka wrote:

Prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn.

So right from the start, there is a presumption that some (very small) amount of prejudice to you exists. As time goes by, the prejudice is assumed to increase the longer the delay until your trial.

However you cannot rely on your trial justice to know this or correctly interpret the rules. A smarter approach would be to address the main areas of prejudice directly. You should state explicit reasons how you have been wronged.

Right to Life and Liberty

Charges under Part 1 of the Provincial Offences Act have no possibility of imprisonment, only fines. It's hard to argue an infringement of your right to liberty when you can't go to jail. And no one is going to execute you for a traffic ticket. Canada no longer has the death penalty.

You should focus your arguments of prejudice elsewhere if you want to be successful. But you should expect the prosecutor to try to bring the focus back here to the issues of life and liberty. They will argue that there can be no prejudice since you cannot go to jail.

It is important to emphasize to the court that prejudice is not just about liberty. There are other factors that must be considered as well like security of the person and the right to a fair trial in determining prejudice under 11(b).

Security of the Person

Too often defendants wrongly argue that they have suffered prejudice, anxiety and stress from having the charges over their heads. But the stress they experience is that they don't want to pay the fine or they are concerned about the insurance increase. This is not an adequate argument. The fear of the penalty should deter you from committing the crime, not stress you out because you don't want to be punished.

Under s. 11(b), the security of the person is to be safeguarded as jealously as the liberty of the individual. In this context, the concept of security of the person is not restricted to physical integrity; rather it encompasses protection against overlong subjection to the vexations and vicissitudes of a pending criminal accusation.
Mills v. The Queen, 1986, para 145

Security of the person should be interpreted far more broadly than mere stress. It includes stigmatization of the accused, loss of privacy, and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome, sanctions or penalties and the inability to make future long term plans.

Your 11(b) arguments should cover many of the points listed above. You should detail how the charge has affected you, your family, your life. You should explain how it has gotten worse over time as this charge hangs over your head.

You must also emphasize that the uncertainty, that is you waiting for a resolution to the matter, has impacted you, affected your decision making and future planning. You must show that the impact has been severe enough to be a significant issue for you.

Right to a Fair Trial

Your arguments should also focus on whether you can receive a fair trial. Primarily it is your ability to make full answer and defence to the charge(s). The longer the delay, the less likely you or any witnesses will remember the details. Furthermore, over time, the availability and reliability of substantiating evidence can weaken or be misplaced.

If you cannot recall the details of the offence, if witnesses are no longer reachable or cannot recollect anything with clarity, then the length of the delay has contributed to your ability to respond with solid arguments and evidence. You could have done this had the matter come to trial much earlier. Since you cannot, the length of the delay has prejudiced your case.