Chris G. Bendick

The defendant brought a Charter application alleging a breach of section 11(b) of the Canadian Charter of Rights and Freedoms (right to be tried within a reasonable time) in a Provincial Offences Act matter concerning alleged violations of the Building Code Act.

The defendant was charged on March 24, 2023, with contravening section 36(1) of the Building Code Act and failing to comply with an inspector's order.

The court conducted a detailed analysis of delay attributable to the defendant, the Crown, and the court itself, calculating net delay of 8.87 months as of the hearing date.

The court found that the defendant did not take meaningful steps to expedite proceedings, having changed legal representation three times, failed to properly serve and file amended Charter application materials, and did not raise disclosure issues until the eleventh hour.

The court dismissed the Charter application, finding no breach of section 11(b) rights, as the net delay remained well below the 18-month presumptive ceiling established in R v. Jordan for provincial court matters.

The Ontario Court of Justice dismissed the appeals against conviction of Mehendran Kandiah and Rhenu Jewellery Inc. for violating COVID-19 public health orders but allowed the sentence appeals, reducing the fines imposed.

The court found no loss of jurisdiction despite procedural irregularities and emphasized the importance of specific and general deterrence in regulatory offences, especially during a public health crisis.

The decision highlights the court's approach to jurisdictional challenges, the admissibility and impact of fresh financial evidence on sentencing, and the balancing of deterrence with proportionality and restraint in fines for corporate and individual offenders.

The appellant, Peter Dimakos, appealed the dismissal of his s.11(b) Charter application related to allegations under the Building Code Act.

The Ontario Court of Justice upheld the trial justice’s decision that the application was not properly before the court due to failure to properly serve the Attorney General, emphasizing the mandatory nature of proper service.

The court found no palpable and overriding error in the trial justice’s procedural ruling and declined to order a new trial under s.120(1) of the Provincial Offences Act despite acknowledging alternative procedural approaches.

This appeal concerns procedural fairness and the application of s. 11(b) of the Canadian Charter of Rights and Freedoms in the context of a zoning by-law breach trial.

The appellant challenged the trial justice of the peace's summary dismissal of an unfiled s. 11(b) application, arguing that the trial court erred by not allowing submissions and by accepting COVID-19 as an exceptional circumstance justifying delay.

The court held that no formal s. 11(b) application was before the court as it was neither filed nor served, and thus the trial justice did not err in refusing to hear or summarily dismiss the application.

The court approved a bifurcated approach, deferring the ineffective assistance of counsel issue to a later stage.

The defendant, AIPL Canada Holdings Inc., brought a pre-trial application to stay proceedings for unreasonable delay under section 11(b) of the Charter, concerning charges under the Building Code Act.

The total delay from the earliest information sworn to the anticipated end of trial was 39 months and 16 days, exceeding the 18-month presumptive ceiling established in R. v. Jordan.

The Crown argued that significant portions of this delay were implicitly waived by the defence through their agreement to adjournments for resolution discussions.

The Court found that the periods where the defence agreed to adjournments for resolution discussions constituted implicit waiver, even without explicit waiver or objection to delay on the record.

Subtracting this implicitly waived delay resulted in a net delay of 263 days, which is below the 18-month ceiling.

The Court dismissed the defendant's application, finding that the defence had not discharged its onus to prove the delay was unreasonable.

The Crown appealed a sentence imposed by a lower court after the respondents pleaded guilty to breaches of the Building Code Act.

The appeal concerned whether the sentencing judge erred by undercutting a joint submission on the fine amount.

The appellate court found that the sentencing judge failed to follow the established framework for departing from joint submissions, specifically by not raising concerns or inviting further submissions, and by not providing cogent reasons for the departure.

The appeal was allowed, and the fine was substituted to the amount originally proposed in the joint submission.

The City of Toronto appealed the acquittal of 2694605 Ontario Inc. on charges under the Cannabis Control Act (CCA) for knowingly permitting an illegal cannabis dispensary.

The Justice of the Peace had found the respondent met the statutory defence by taking "reasonable measures" to prevent the activity.

The City argued that "reasonable measures" should be interpreted as "all reasonable steps," akin to a due diligence standard.

The court dismissed the appeal, affirming that "reasonable measures" is a lower standard than "all reasonable steps," based on a plain reading of the CCA and comparison with other statutes like the Criminal Code and Liquor Licence Act.

The court found the respondent's actions, including attempts to evict tenants and change locks, were reasonable given the circumstances.

The defendant, charged with speeding under the Highway Traffic Act, brought a Charter motion arguing that proceeding by certificate evidence without the charging officer's attendance violated sections 7 and 11(d) of the Charter, seeking a stay or an order for the officer to attend.

The court dismissed the section 7 argument, noting that speeding is an absolute liability offence with no risk of incarceration.

For section 11(d), the court applied a contextual approach for regulatory offences, finding that the right to cross-examination is limited and requires a showing of material irregularity under section 49(4) of the Provincial Offences Act.

The court found the defendant's request for the officer's attendance was based on speculation and did not meet the threshold for a material irregularity, dismissing the Charter motion and the request to compel attendance.

The Regional Municipality of York appealed the dismissal of a speeding charge against the respondent, which was originally dismissed by a Justice of the Peace who found the certified statement evidence insufficient due to "unanswered questions" regarding the speed measurement device.

The appeal court found that the Justice of the Peace erred by relying on speculation rather than inferences reasonably arising from the evidence.

As the certified statements were deemed proof of facts in the absence of evidence to the contrary under the Provincial Offences Act, and no such contrary evidence was presented, the appeal was allowed.

The appellant, Igor Iagolnik, appealed a speeding conviction under the Highway Traffic Act, arguing the Justice of the Peace erred by refusing an adjournment when the prosecution used certified statements and that the evidence was insufficient.

The court dismissed the appeal, affirming that certified statements under s. 48.1 of the Provincial Offences Act are admissible and sufficient proof in the absence of evidence to the contrary.

The court also clarified that pre-conditions for speed measurement evidence admissibility are no longer required for established technologies like RADAR/LIDAR, and speculation does not constitute evidence to the contrary.

The appellants, 1085638 Ontario Limited and Meadow Valley Garden Centre Ltd., appealed convictions under the Building Code Act and Planning Act related to the operation of a garden centre without proper permits and in violation of zoning.

The appeal focused on two issues: legal non-conforming use under s. 34(9) of the Planning Act and delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The Court of Appeal dismissed the appeal, affirming that for a legal non-conforming use, the activity must be in active operation on the day the zoning by-law was passed.

Regarding the s. 11(b) claim, the court found no error in the lower court's conclusion that the corporate appellant failed to demonstrate prejudice, applying the pre-Jordan test.

The appellant, convicted of speeding, appealed the dismissal of his provincial offences appeal.

The Court of Appeal found that the trial justice of the peace made a palpable and overriding error by failing to consider a significant discrepancy between the officer's oral testimony regarding time and distance and the radar reading, which could have raised reasonable doubt about the radar's functioning.

The conviction was set aside, and a new trial ordered, with the Crown indicating it would withdraw the charge.

Costs were not awarded, consistent with the general rule for Provincial Offences Act proceedings.

The Regional Municipality of York appealed acquittals on six Building Code Act charges arising from Orders to Comply issued in 2013 for unauthorized construction at a marina property.

The trial judge acquitted the respondent on the basis that the 2013 Orders were identical to Orders issued in 1996, and that the respondent had complied with the earlier Orders.

The appellate court found that the trial judge erred by permitting a collateral attack on the 2013 Orders, which had not been appealed to the Superior Court as required by statute.

The court also rejected defences of due diligence, estoppel, laches, and officially induced error.

The acquittals were overturned and convictions were entered on all counts, with fines of $100 per count totalling $600.

Three appellants appealed dismissals of their Charter section 11(b) applications for stays of proceedings based on unreasonable delay in Part I Provincial Offences Act prosecutions.

The central issue was whether the 18-month presumptive ceiling established in R. v. Jordan applies to Part I offences or whether a lower ceiling should apply given the simplicity of such proceedings.

The court held that the 18-month ceiling applies to all provincial court matters, including Part I offences.

The court also addressed the test for demonstrating unreasonable delay below the ceiling, the requirement for meaningful steps to expedite proceedings, and the circumstances in which summary dismissal of frivolous applications is appropriate.

The appellant was charged with speeding under the Highway Traffic Act.

He requested disclosure of the testing and operating procedures from the user manual for the Genesis Handheld Directional traffic radar device used to measure his vehicle's speed.

The prosecutor refused disclosure, taking the position that user manuals constitute third-party records requiring a third-party production application.

The justice of the peace ordered disclosure.

The prosecutor obtained a certiorari order quashing the disclosure order.

The Court of Appeal allowed the appeal, finding that the certiorari order was improper and that the disclosure was required as first-party disclosure under the Stinchcombe regime.

Appeal from conviction and sentence for violations of the Building Code Act and Planning Act.

The appellants operated a garden centre on property zoned within the Oak Ridges Moraine without required permits and in violation of zoning restrictions.

The trial court convicted both appellants on multiple counts and imposed substantial fines.

The appellants appealed on six grounds, including challenges to the rejection of a legal non-conforming use defence, the refusal to adjourn sentencing, and a prior s. 11(b) delay application.

The appellate court dismissed all grounds of appeal, finding no legal error in the trial court's application of zoning law principles or procedural rulings.

The Regional Municipality of York sought leave to appeal a provincial court appeal judge's decision that set aside a stay of proceedings in a speeding charge against Steve Tomovski.

The appeal judge had found that while the delay breached the Charter right to trial within a reasonable time under the R. v. Jordan framework, the breach was attributable to the defendant.

The appeal judge also opined that the presumptive delay ceiling for Part I Provincial Offences Act proceedings should be 13 to 15 months, rather than the 18 months established in Jordan.

York sought leave to appeal on questions of law regarding the appropriate presumptive delay ceiling and the application of Charter s. 11(b) to Part I POA proceedings.

The Court of Appeal dismissed the motion for leave to appeal, finding that York was seeking to appeal the reasons for judgment rather than the judgment itself, and that the appeal judge's opinion on the presumptive delay ceiling was not a "judgment" appealable under s. 139 of the POA.

The appellant was charged with violations of the Building Code Act for failing to comply with six orders to comply issued in 2013.

At trial, the appellant sought disclosure of prior charges and prosecutions, including orders to comply issued in 1995 and 1996 that had resulted in withdrawn charges.

The justice of the peace granted the disclosure order.

The respondent municipality applied for certiorari to quash the disclosure order.

The Superior Court granted certiorari, finding the earlier orders were distinct due to different compliance deadlines.

The Court of Appeal allowed the appeal, finding the application judge erred by failing to apply the substantial wrong or miscarriage of justice test and by prematurely determining the relevance issue mid-trial.

On appeal from a stay of proceedings entered by Justice of the Peace H. Radtke on June 21, 2016, the court considered whether the respondent's right to trial within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms was breached.

The respondent was charged with speeding on December 30, 2014, and the matter proceeded through two adjournments before a stay was granted.

The appeal court applied the framework established in R. v. Jordan, 2016 SCC 27, and determined that the net delay of 326 days (10 months and 22 days) was presumptively reasonable.

The court also addressed whether the 18-month presumptive ceiling established in Jordan applies to Part I Provincial Offences Act proceedings, concluding that a lower ceiling of approximately 14 months is more appropriate for such regulatory matters.

The respondent, who operated a body rub parlour licensed by the City of Vaughan, was charged with contravening a municipal by-law governing the hours of operation of body rub parlours.

He challenged the constitutionality of the by-law, arguing it was ultra vires the municipality because it constituted criminal law.

A justice of the peace and the Ontario Court of Justice agreed, finding the provisions were criminal in pith and substance and invaded federal authority.

The Court of Appeal allowed the appeal, holding that the pith and substance of the hours of operation provision was business licensing, falling within provincial authority over property and civil rights and licensing.

The court found the lower courts erred by focusing exclusively on extrinsic evidence while ignoring intrinsic evidence, and by failing to recognize that municipalities may legislate to suppress conditions conducive to crime when anchored in a valid provincial head of power.