Excessive Delay

It is rare for a disciplinary case to be stayed on the grounds of excessive delay. However, Diaz-Rodriguez v British Columbia (Police Complaint Commissioner), 2018 BCSC 1642, http://canlii.ca/t/hv9pz is an example of where the test for a stay was met. The case involved allegations of the use of excessive force and of giving misleading statements by a transit police officer. The delay was for seven years despite the inclusion of tight timelines within the enabling legislation. The delay included the restarting of proceedings at least twice because the oversight body was not satisfied with earlier determinations.

The Court acknowledged that the timeliness requirements of criminal proceedings did not apply and that the case was governed by Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307, http://canlii.ca/t/525t: “the applicant must establish that: (1) the delay is unacceptable; and (2) there is a serious prejudice arising from the delay itself, not from the underlying allegations or charges”. The Court also accepted that section 7 of the Canadian Charter of Rights and Freedoms did not apply. The Court concluded that there was no material unfairness to the hearing process as the core evidence remained available through video recordings and promptly-taken witness statements.

However, the Court found that the extraordinary delay did meet the “inordinate” criterion given the time-sensitive nature of the legislative scheme and the circular nature of the proceedings. The Court also found that there was significant prejudice to the practitioner largely because of the career limiting restrictions he had worked under for five years and the impact the delays had on him and his family.

This case is a reminder to regulators that, despite the non-criminal law approach taken to regulatory delays, excessive delays can result in the staying of proceedings in appropriate, albeit rare cases. This is particularly true where interim restrictions are imposed.

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