While the applicant has the legal burden of establishing a Charter violation, an evidentiary burden of putting forth evidence or argument on particular factors will shift depending on the circumstances of each case. A case will only be decided by reference to the burden of proof if the court cannot come to a determinate conclusion on the facts presented to it. An inquiry into unreasonable delay should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness. A shorter period of delay will raise the issue if the applicant shows prejudice, as for example if the accused was in custody. If by agreement or conduct the accused has waived any part of this time period, the length of the period of delay will be reduced accordingly.
All offences have certain inherent time requirements which inevitably lead to delay.
As well as the complexity of a case, all cases are subject to certain intake requirements and some cases must pass through a preliminary inquiry before reaching trial. The court will also need to consider whether the actions of either the accused or the Crown have led to delay. In considering the explanation for delay, account must be taken of the limits of institutional resources. Institutional delay runs from the time the parties are ready for trial and continues until the system can accommodate the proceedings. The weight to be given to this factor must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay.