In R. v. Kanda, 2021 BCCA 267, July 7, 2021,the accused was charged with a number of offences on October 2, 2016. The Crown entered a stay of proceedings on October 5, 2016. The police continued to investigate and on February 26, 2019, charges were laid. The accused applied for a judicial stay of proceedings to be entered arguing that the total delay from the laying of the charge subsequently stayed should be considered. The trial judge entered a stay of proceedings. The Crown appealed.
The Court of Appeal indicated that the “question is whether, notwithstanding the stay, that ongoing process was sufficient to continue engaging the rights of the respondent that section 11(b) is designed to protect” (at paragraph 8).
The appeal was allowed and the stay set aside. The Court of Appeal held that the accused’s “section 11(b) rights were not engaged during the gap, so that it should not be included in the Jordan calculations. The circumstances here were not sufficient to justify departure from what the respondent acknowledges, and the judge accepted, is the general rule that (to quote from the respondent’s factum) ‘s. 11(b) is not engaged during the gap period between when Crown stays the proceedings on a charge and when they bring new charges based on the same facts’… conclude that there is nothing about the circumstances of this case that would properly exclude it from the general principle that, as stated in Milani, the relevant period for the purposes of section 11(b) is where there are active charges outstanding against an accused. The existence of an ongoing investigation after the stay of an original information, whether known to the accused or not, does not create an exception to that general principle in the absence of an element of illegitimacy or manipulation that would properly engage section 11(b) interests and the concerns addressed in Jordan” (at paragraphs 9 and 115).