Court of Appeal for Ontario
Before: Gillese J.A. (Motions Judge)
Between
His Majesty the King
Respondent/Responding Party
and
Sharon Omiwole
Appellant/Moving Party
Counsel:
Nate Jackson, for the appellant/moving party
Jennifer Epstein, for the respondent/responding party
Heard: February 10, 2025
Endorsement
1This is a motion by Sharon Omiwole (the “Moving Party”) for leave to appeal pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”) on a question of law alone.
2The Moving Party was charged, under the Highway Traffic Act, R.S.O. 1990, c. H.8, with one count of careless driving causing death and four counts of careless driving causing bodily harm following an accident that occurred on June 27, 2020. The allegation is that her vehicle, which was headed northbound, deviated across the centre line and collided head-on with a car travelling southbound. The collision killed the driver of the southbound car and seriously injured its four passengers.
3The information in this matter was sworn on November 19, 2020, with a summons to appear on January 12, 2021. The COVID-19 pandemic intervened. The courts were closed and POA cases were adjourned. The Moving Party’s original summons date was administratively adjourned by the Regional Senior Justice of the Peace (the “RSJP”) to February 18, 2022, some 15 months after the information was sworn.
4Due to an administrative error, the notice advising the Moving Party of her February 2022 appearance date was sent to the wrong address (the “Administrative Error”). The Moving Party ultimately first appeared in court in May 2022. Her 4-day trial in the Ontario Court of Justice (the “OCJ”) was scheduled to end on October 26, 2023. The total delay from the information being sworn on November 19, 2020, to the anticipated end of trial on October 26, 2023, is 35 months and 7 days.
5The Moving Party applied for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms. The Justice of the Peace (“JP”) who heard the application declined to consider the whole 15-month administrative adjournment during the pandemic period as an exceptional circumstance, instead deducting only 5 months and 13 days. She also declined to deduct any delay for the 2 months and 29 days of delay resulting from the Administrative Error. Accordingly, the JP found that the net delay was 29 months and 22 days. Because the net delay exceeded the 18-month ceiling in the OCJ, the JP ordered a stay.
6The Crown appealed to the OCJ. The appeal judge found that the JP erred in her calculation of the net delay in two ways: (1) by failing to characterize the full 15-month period of delay related to the pandemic as an exceptional circumstance; and (2) by failing to characterize the delay caused by the Administrative Error as an exceptional circumstance. She therefore found that the net delay was 17 months and 10 days, which is below the presumptive ceiling, and that the delay was not unreasonable. Accordingly, she allowed the appeal and remitted the matter for trial (the “OCJ Appeal Decision”).
7The Moving Party now seeks leave to appeal the OCJ Appeal Decision. She contends that there are two questions arising from that decision which warrant leave being granted. First, she submits that the Crown was required to show actual evidence of reasonable attempts to mitigate the pandemic delay before the entire period could be deducted as delay. This issue, the Moving Party argues, has “broad significance”. Second, the Moving Party points to an error on the part of the appeal judge in respect of the Administrative Error. The appeal judge was operating on the erroneous understanding that the state sent out the appearance notice before it was advised of the Moving Party’s change of address. In fact, the state had been notified of the change to the Moving Party’s address before the notice was mailed. This error, the Moving Party submits, results in a failure of natural justice which independently warrants that leave be granted. While the Crown accepts that the appeal judge made a factual mistake, it disagrees that the mistake meets the threshold for granting leave.
8The principles for granting leave to appeal under s. 131 of the POA are well known. They establish that a very high threshold must be met before leave will be granted. There must be a question of law alone, the resolution of which may have an impact on the jurisprudence in a way that is of interest to the public at large, and that resolution must be essential in the public interest. However, where there has been a failure of natural justice, in the sense that the defendant has not been heard, leave may be granted. See, for example, R. v. Scantlebury, 2016 ONCA 453, 350 O.A.C. 174, at paras. 12- 13.
9This court thoroughly addressed the first issue – namely, the COVID-related limitations on access to the courts and the Crown’s duty to mitigate – in R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721. Thus, this issue does not need resolution as a matter of public interest. In any event, the appeal judge correctly found that the JP had taken the wrong approach to this matter. At para. 32 of Agpoon, this court observed that “Regional Senior Justices were given significant discretion over how best to address the backlogs [arising from the COVID pandemic] in their courts” and, at para. 34, stipulated that it is not open to the defence to second-guess those policy decisions on a case-by-case basis. The administrative adjournment was a policy decision of the RSJP and falls squarely under Agpoon’s enumerated categories of exceptional circumstances that are outside the Crown’s control and ability to remedy.
10As for the second issue, the appeal judge’s mistake of fact in relation to the Administrative Error does not amount to a question of law alone nor is its resolution a matter essential to the public interest. The appeal judge’s finding that the Administrative Error was an exceptional circumstance did not rest solely on her factual misapprehension. She found that the issuance of the notice to the wrong address was an administrative error for which the Crown should not be held responsible. As the appeal judge noted, this error is one of those which the Supreme Court of Canada described in R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 100, as “simply one of those unforeseeable and unavoidable hiccups that sometimes occur in the life of a trial”. The Crown plays no role in matters such as the Administrative Error and had no control or ability to remedy that error: K.J.M., at paras. 98-99. Further, I do not view the Administrative Error as a failure of natural justice. There is no suggestion in the record that the Moving Party was denied procedural fairness. The appeal judge properly deducted the delay occasioned by the Administrative Error as an exceptional circumstance.
11For these reasons, the motion for leave to appeal is dismissed.
“E.E. Gillese J.A.”