minicounsel

The Highway Traffic Act, R.S.O 1990, c. H.8

and

an application for a stay of proceedings under s. 24(1)

for an infringement of s. 11(b) of the Charter

The Corporation of the City of Mississauga Prosecutor (respondent)

and

Michael J. Lam Defendant (applicant)

Ontario Court of Justice Mississauga, Ontario

Before: Quon J.P.

Counsel:

R. Craig, prosecutor for the City of Mississauga
J. Bonin, legal representative for the defendant

Application argued: September 26, 2012

Ruling rendered: November 27, 2012

Charge: Speeding, s. 128 H.T.A.

Cases Considered or Referred To

Durham (Regional Municipality) v. Williams, [2006] O.J. No. 3944 (QL) (Ont. S.C.J.), per Ferguson J.
R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 (S.C.C.)
R. v. C.R.G., 2005 CanLII 32192 (ON CA), [2005] O.J. No. 3764 (QL) (O.C.A.), per Rosenberg, MacFarland and Rouleau JJ.A.
R. v. Du Carmur, [2007] O.J. No. 3369 (QL) (Ont. S.C.J.), per Hill J.
R. v. Goldin, 2009 SCC 26 (S.C.C.)
R. v. M.(N.N.), 2006 CanLII 14957 (ON CA), [2006] O.J. No. 1802 (QL) (O.C.A.), per Feldman, Juriansz and MacFarland JJ.A.
R. v. Moniz, [1999] O.J. No. 312 (QL) (O.C.J.), per Quon J.P.
R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1, [1992] 1 S.C.R. 771 (S.C.C.)
R. v. Nandalall, 2008 CarswellOnt 8954 (Ont. S.C.J.), per Langdon J.
R. v. Nguyen, 2012 ONCJ 512 (O.C.J.), per P. Harris J.
R. v. Omarzadah, [2004] O.J. No. 2212 (QL) (O.C.A.), per Doherty J.A.
R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.)
R. v. Syed Khan (7 January 2011), Halton Provincial Offences Court file no. 95128045 (O.C.J.), per Zisman J.
R. v. Tieu, 2012 ONCJ 536 (O.C.J.), per Bourque J.
R. v. Tran, 2012 ONCA 18 (CanLII), [2012] O.J. No. 83 (QL) (O.C.A.), per MacPherson, Simmons and Blair JJ.A.
R. v. Wong, 2012 ONCJ 589 (O.C.J.), per Dechert J.P.
Toronto (City) v. Andrade, 2011 ONCJ 470 (O.C.J.), per Libman J.

Statutes, Regulations and Rules Cited

Exhibits Entered

Exhibit "1" - affidavit of Michael Lam dated August 3, 2012

1. BACKGROUND

1Similar to s. 11(b) inquiries for criminal proceedings, the determination of whether there has been exceptional delay or if it has indeed taken too long for a person charged with a regulatory offence to receive their trial, have become increasingly complex and consumed with prolonged arguments over whether a particular period of time for the 11(b) equation should be attributed to the prosecution or the defence; or whether that period should be classified as an inherent time requirement, an explicit or implied waiver by the defendant, or as a result of institutional or systemic delay; or whether it should be considered neutral time.

2It is no different in this particular regulatory matter in which the defendant, Michael J. Lam, claims there has been unreasonable delay in obtaining a trial for a charge he received on April 24, 2011, of speeding 85 k.p.h. in a posted 60 k.p.h. zone in the City of Mississauga, contrary to s. 128 of the Highway Traffic Act, R.S.O. 1990, H.8, and for which he had been issued a Certificate of Offence under Part I of the Provincial Offences Act, R.S.O. 1990, c. P.33 ("P.O.A.").

3Five days after receiving his speeding ticket, the defendant personally attended at the Ontario Court of Justice – Provincial Offences Office situated in Mississauga on April 29, 2011, and filed a "Notice of Intention to Appear", as required under s. 5(1) of the P.O.A. if he wished to dispute the charge and have a trial. The filing of this s. 5(1) Notice for this Part I offence on April 29, 2011, then triggered the clock to start running on the defendant's right under s. 11(b) of the Charter to receive a trial within a reasonable time: R. v. Moniz, [1999] O.J. No. 312 (QL) (O.C.J.), at para. 43.

4However, on April 29, 2011, when the Notice of Intention was filed, the defendant did not make a request with Court Administration to have a trial date scheduled for his speeding charge, but instead requested from them a "first attendance" meeting with the municipal prosecutor to discuss his charge. Following the defendant's request, Court Administration then scheduled a "first attendance" meeting with the prosecutor for September 29, 2011, which was five months after the date the defendant's Notice of Intention had been filed. Moreover, under this administrative scheme a trial date for the defendant's charge would not be scheduled by Court Administration until after this pre-trial meeting was held, in case the defendant accepted a resolution from the prosecution that would negate the need for a trial.

5On September 29, 2011, the defendant, as indicated in his affidavit sworn on August 3, 2012 (Exhibit 1), attested that he had attended the "first attendance" meeting but that "there was no resolution of this matter as a result of the meeting" and that "the Prosecution did not provide me with or appear to have any disclosure relating to this matter either on or prior to September 29, 2011", and that "without the provision of that disclosure I was not able to assess the case against me".

6More important, it was also not until September 29, 2011, after that first attendance meeting had been completed that Court Administration was now able to schedule a trial date for the defendant's speeding charge. The defendant's trial was then scheduled to be held on May 23, 2012, which is 12 months and 24 days after the date on which he had first filed his "Notice of Intention to Appear". The defendant also received a written notice of that May 23rd trial date personally from Court Administration on September 29, 2011.

7In addition, the defendant had not submitted a written request to the Municipal Prosecutor's Office for disclosure prior to the September 29, 2011, meeting. Indeed, as indicated by the defendant's legal representative during the argument of the 11(b) application, the defendant did not make this written request for disclosure until October 11, 2011, which is 5 months and 12 days after the Notice of Intention to Appear had been filed by the defendant.

8Furthermore, the defendant did not retain legal representation until January 6, 2012, which is 8 months and 8 days after the Notice of Intention to Appear had been filed by the defendant. After the defendant's legal representative had been retained, the legal representative also made a formal written request for disclosure on January 9, 2012, which had been in addition to the initial disclosure provided to the defendant prior to the legal representative being retained. And then on April 2, 2012, the defendant's representative submitted a second written request to the prosecution in order to obtain additional disclosure. It was also acknowledged by the defendant's legal representative that the prosecution's obligation to provide disclosure had been fulfilled prior to the scheduled trial date of May 23, 2012.

9Then, on May 23, 2012, the defendant's legal representative, after properly serving Notices of Constitutional Question on the required parties, proceeded to argue the 11(b) application, but the learned judicial officer presiding on May 23rd did not permit the application to be argued because he noted there had been an incomplete evidentiary record of prior proceedings and required that an affidavit from the defendant be prepared and submitted with the application in regards to what had occurred at the first attendance meeting with the prosecutor on September 29, 2011, as there had been no transcript or information available to the court to show what occurred at that meeting. The matter was then adjourned by my learned colleague to September 26, 2012, for the application to be argued before this particular court. And, with the 4 months and 4 days of delay for that adjournment, the total delay from April 29, 2011, to September 26, 2012, had now reached 16 months and 28 days.

10After the 11(b) application had been argued before me on September 26, 2012, I reserved my decision and adjourned the matter until November 27, 2012, to give my ruling. With this adjournment to prepare the ruling, the total delay from April 29, 2011 to November 27, 2012, would now be 18 months and 29 days.

11However, for the present inquiry, it is the treatment of the five-month period between April 29, 2011, and September 29, 2011, that is the central question which needs to be resolved in order to determine whether there has been intolerable or unreasonable delay in getting to trial that would warrant a Charter remedy. In that regard, the defendant contends this particular period of delay, which is related to scheduling and conducting the "first attendance meeting" with a prosecutor, should be counted as institutional delay and included in the calculation of the length of time to get to trial. Conversely, the prosecution argues that the period in question should not be ascribed as institutional delay nor counted against the prosecution, but should be attributed to the defendant, since it had been the defendant who had selected the optional "first attendance meeting" with a municipal prosecutor instead of opting for a trial when he had first filed his Notice of Intention to Appear, which is what consequently added five months to the length of delay from the date the defendant filed his Notice of Intention to Appear to the date of the defendant's first scheduled trial date.

12Moreover, the defendant argues that the delay associated with the first attendance meeting should not be attributed to him, as he had not been provided any disclosure by the prosecution prior to him appearing at the first attendance meeting, and that it had been a fruitless meeting with the prosecutor, since the defendant could not assess the prosecution's case against him without that disclosure.

13Therefore, the principal issue that has to be resolved in the present application concerns how this court should treat the period from the date the defendant filed his "Notice of Intention to Appear" on April 29, 2011, to the date set by Court Administration for the defendant to meet a municipal prosecutor for a "first attendance" meeting on September 29, 2011. Moreover, the defendant's legal representative concedes that if it is determined that this five-month period is excusable delay, then the period of 7 months and 24 days from September 29, 2011, the date when the defendant's trial was first set down, to May 23, 2012, the first scheduled trial date, would not be unreasonable or excessive in view of the administrative guideline of 8 to 10 months of acceptable or tolerable institutional delay to obtain a trial in the Ontario Court of Justice, as conveyed by the Supreme Court of Canada in R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1, [1992] 1 S.C.R. 771. Accordingly, based on this defence concession my ruling will concentrate on the period related to the first attendance meeting and will only briefly address the other criteria and periods of delay in the 11(b) inquiry.

2. THE 11(b) INQUIRY

14As in most 11(b) applications for a Charter remedy for Part I regulatory offences, generally more court time is spent hearing the 11(b) arguments than the amount of time it would normally take for the court to actually conduct and hear the trial of the charge on its merits. The present case is no exception.

15Moreover, for the defendant in particular, as well as for any person in general that is charged with a Part I regulatory offence, the reasonable-time clock starts running at the time the "Notice of Intention to Appear" is filed by them at the appropriate courthouse, since Part I offences are commenced by a Certificate of Offence being issued and a Notice of Offence that contains a set fine being served on the accused person, which is an out-of-court payment that can be paid within 15 days of being issued the Notice of Offence by an accused person who does not wish to dispute the charge and who ultimately wishes to dispose of the charge without a trial. Accused persons are also given information in the Notice of Offence that they have 15 days to decide which of the three options that are available to them that they would like to proceed with or choose from, namely, whether they wish (1) to plead guilty to the charge and pay the total payable (set fine, costs, and victim fine surcharge) as an out-of-court settlement and not dispute the charge; or (2) to enter a guilty plea before a justice and make submissions as to penalty; or (3) to dispute the charge by choosing the trial option by filing a Notice of Intention to Appear and requesting a trial. In addition, under the third option, an accused person may also make a request for a first attendance meeting with a prosecutor to discuss the charge in advance of the trial.

16In this case, the clock started running for the defendant on April 29, 2011, when he had personally attended at the Ontario Court of Justice - Provincial Offences Office in Mississauga and filed a Notice of Intention to Appear, indicating he had selected the trial option.

(a) Length Of The Overall Delay

17The overall length of delay to obtain a trial after the defendant had filed the "Notice of Intention to Appear" on April 29, 2011, to November 27, 2012, which is the date scheduled for my ruling on the 11(b) application and the next scheduled trial date, is 18 months and 29 days.

18Ergo, since the overall length of delay of 18 months and 29 days exceeds the Morin administrative guideline of 8 to 10 months of acceptable or tolerable institutional delay before obtaining a trial in the Provincial Courts, a further inquiry must be made into the reasonableness of the delay that has occurred before the defendant could obtain a trial on his speeding charge and whether a remedy of a stay of proceedings is warranted.

(b) The First Attendance Meeting

19The period at issue, which is from the date of April 29, 2011, the date on which the defendant's "Notice of Intention to Appear" had been filed, to the date of September 29, 2011, the date of the "first attendance" meeting with the municipal prosecutor, is 153 days or five months.

20However, this "first attendance" meeting with the municipal prosecutor was not mandatory for the defendant nor had it been legislated by statute as an option at that time, but had been a municipal scheme that provided an optional and voluntary step that could be initiated by people charged with regulatory charges under Part I of the P.O.A., and who had to make a request through Court Administration for this meeting with the prosecutor. Although recently, this "first attendance option" became a legislated option that came into force on March 1, 2012, in which the option to meet with a prosecutor will now be known as the "early resolution meeting" and is provided for under s. 5.1(2) of the P.O.A.

(c) By Choosing The "First Attendance" Option, Did The Defendant Waive The Delay Between April 29, 2011 And September 29, 2011?

21Since the overall length of delay of 18 months and 29 days has triggered a further inquiry into the reasonableness of the delay, then the next step is to determine whether any amount of the delay has been explicitly or implicitly waived by the defendant.

22Sopinka J., writing for the majority of the Supreme Court of Canada in Morin, at paras. 37 to 39, reasoned that the question of waiver by the accused person of any of the overall delay should be logically addressed first before embarking on the more detailed examination of the reasons for the delay. In addition, he explained that such waiver could be explicit or implicit and that if there has been a waiver by the accused person of their right to complain of the delay in question, then this waiver would either dispose of the reasonableness inquiry or permit that particular period of delay to be deducted from the overall length of the delay. However, Sopinka J. made it quite clear that in order to find that there had been a waiver of any delay by the defendant, the waiver must be clear and unequivocal with the defendant having full knowledge of the rights that s. 11(b) had been enacted to protect and of the effect that waiver would have on those rights. Moreover, if the accused person's conduct was not sufficient to constitute a waiver of any of the delay, Sopinka emphasized that the defendant's conduct in relation to the delay in question, short of waiver, could still be considered as "actions of the accused" in the 11(b) inquiry:

If the length of the delay warrants an inquiry into the reasons for delay, it appears logical to deal with any allegation of waiver before embarking on the more detailed examination of the reasons for delay. If by agreement or other conduct the accused has waived in whole or in part his or her rights to complain of delay then this will either dispose of the matter or allow the period waived to be deducted.

This Court has clearly stated that in order for an accused to waive his or her rights under s. 11(b), such waiver must be clear and unequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights (Korponay v. Attorney General of Canada, 1982 CanLII 12 (SCC), [1982] 1 S.C.R. 41, at p. 49; see also Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, at pp. 394-96; Askov, supra, at pp. 1228-29). Waiver can be explicit or implicit. If the waiver is said to be implicit, the conduct of the accused must comply with the stringent test for waiver set out above. As Cory J. described it in Askov, supra, at p. 1228:

... there must be something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he or she had a s. 11(b) guarantee, understood its nature and has waived the right provided by that guarantee.

Waiver requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Such conduct may be taken into account under the factor "actions of the accused" but it is not waiver. As I stated in Smith, supra, which was adopted in Askov, supra, consent to a trial date can give rise to an inference of waiver. This will not be so if consent to a date amounts to mere acquiescence in the inevitable.

(i) Voluntary versus mandatory meetings

23It is also important at this stage of my analysis to note that courts, in the context of the 11(b) inquiry, have differentiated between a meeting that is mandatory on an accused person and one that is voluntarily requested or entered into by an accused person, in determining how the delay related to scheduling and holding that meeting should be attributed or treated. For mandatory meetings, such as the time it would take to schedule and conduct a mandatory judicial pre-trial for example, the Court of Appeal for Ontario in R. v. C.R.G., 2005 CanLII 32192 (ON CA), [2005] O.J. No. 3764 (QL), at paras. 29 and 30, held that the delay it takes to schedule the mandatory meeting would constitute institutional delay and not an inherent time requirement:

I wish to conclude with some comments about the judicial pre-trial. The trial judge was very critical of the use of mandatory judicial pre-trials in all cases where the preliminary inquiry is expected to exceed one day. In his view, there should be more flexibility, so that either the pre-trial is not mandatory or in appropriate cases the pre-trial can be held almost immediately.

In my view, reviewing courts should be very cautious about judging the advisability of steps taken by the Ontario Court of Justice to manage its lists. That court has seen a huge increase in its caseload so that, according to statistics filed in the Morin case, it handles 95 percent of criminal cases in Ontario: see R. v. Morin, at p. 27. It is entirely reasonable that the court attempt to take measures that will reduce the impact of cases that are expected to be a particular burden on resources. The purposes of the judicial pre-trial are, in part, to assist counsel in narrowing the issues, thus reducing the court time needed, and to obtain an accurate estimate of the time required to hear the case. Whether there is potential benefit from and room for some flexibility in the requirement for, and scheduling of, pretrials in the Hamilton Ontario Court of Justice, is principally a matter for that court. That said, I do agree that the delay needed to schedule the judicial pre-trial is properly considered to be institutional delay, not an aspect of the inherent time requirements of the case. See R. v. Chatwell (1998), 1998 CanLII 3560 (ON CA), 122 C.C.C. (3d) 162 (Ont. C.A.) at para. 11.

24On the other hand, when the scheduling of a judicial pre-trial meeting is not mandatory on the accused person, but a voluntary request by the accused person for the meeting, then as Justice Hill held in R. v. Du Carmur, [2007] O.J. No. 3369 (QL) (Ont. S.C.J.), at para. 45, the delay to schedule and conduct a voluntary judicial pre-trial meeting for assisting resolution discussions should be considered to be "neutral intake time" and not institutional delay:

October 21st, 2004 to January 28th, 2005, a period of about three months, can be considered, in this case, neutral intake time. Counsel was retained, trial election made, and initial disclosure provided. Although the Crown ought to have had the material necessary for a resolution meeting in court on December 7th, it appears that the defence was also requesting additional disclosure. The air-flight problem of Mr. Dicarlo in making the January 5th appearance was an exigency beyond anyone's control. I would not be disposed, in this early period, to attribute responsibility to the Crown or defence for short delays. Ordinarily, the delay to schedule a mandatory judicial pre-trial would constitute institutional delay: R. v. C.R.G. (2005), 2005 CanLII 32192 (ON CA), 77 O.R. (3d) 308 (C.A.) at para. 30. Here, however, the parties were not subject to the mandatory pre-trial protocol but sought a pre-trial for judicial assistance toward resolution discussions. In these circumstances, the delay to the January 28th date is neutral.

25However, after the Court of Appeal's ruling in R. v. C.R.G., lower courts, such as in R. v. Tieu 2012 ONCJ 536 (O.C.J.) and R. v. Nguyen 2012 ONCJ 512 (O.C.J.), have been questioning if the entire period related to the time to schedule and conduct a mandatory judicial pre-trial meeting should be attributable to institutional delay or whether the Court of Appeal in R. v. Tran, 2012 ONCA 18 (CanLII), [2012] O.J. No. 83 (QL) had backtracked on their original determination in R. v. C.R.G. and had recognized that "some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case". In R. v. Tieu, Bourque J. at paras. 15 to 18, after considering the Court of Appeal's decision in R. v. Tran interpreted delay related to scheduling and conducting mandatory judicial pre-trials as having inherent time requirements, but that not all the delay associated with judicial pre-trials should be counted completely as institutional delay:

There is conflicting opinion as to whether the time required to conduct a judicial pre-trial is inherent to the case or whether it is institutional delay. In R. v. C.R.G. 2005 CanLII 32192 (ON CA), [2005] O.J. No. 3764, the Court of Appeal, while acknowledging the need to manage lists in the Ontario Court (and the benefits of having them), the court held that the delay is institutional.

In the subsequent case of R. v. Tran 2012 ONCA 18 (CanLII), [2012] O.J. No. 83, the Court of Appeal came to the opposite conclusion. The court sets out the same reasons as the previous court for encouraging the use of judicial pre-trials in busy judicial centres and decided that "some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case".

I agree with the decision in R. v. Tran, and for the purposes of this jurisdiction, I think that a month to schedule, prepare for, and complete a judicial pre-trial is inherent to the case. However, where the pre-trial is delayed or adjourned for reasons not attributable to the defence, then periods beyond the month could cease to be reasonable and thus become institutional or Crown delays. There was a delay for under a month for a judicial pre-trial which had to be adjourned two times. Once because of a failure to provide disclosure and secondly because the court could not accommodate the matter.

I therefore conclude that the delay from March 31, 2011 to June 8, 2011 is intake and a reasonable time for holding the judicial pre-trial. That is 2 months and 8 days. The defendant eventually obtained a trial date on the date the judicial pre-trial was completed. I therefore find that the period from June 8, 2011 to July 21, 2011 is institutional or Crown related delay.

(ii) Was the defendant's first attendance meeting with a prosecutor a mandatory or voluntary meeting?

26Although the first attendance meeting with a prosecutor was not statutorily provided for in the P.O.A. on April 29, 2011, when the defendant filed his Notice of Intention to Appear, it would nonetheless be a valid and legal administrative scheme, if it follows the criteria set out by Ferguson J. in Durham (Regional Municipality) v. Williams, [2006] O.J. No. 3944 (QL) (Ont. S.C.J.), at paras. 54 to 62, to make the first attendance scheme lawful:

How can the Durham scheme be fixed?

Counsel asked me to comment on how any defects in the scheme could be fixed.

Counsel provided me with a Ministry of the Attorney General document entitled, "First Attendance" dated December 18, 2000. He said this was the outline of the initiative under which Durham created their scheme.

Under the heading, "What is First Attendance?" the document states:

First Attendance is an administrative process intended to give defendants an opportunity to discuss the matter with a prosecutor before setting a trial date. [My underlining]

Later under a heading, "How does First Attendance work?" it states:

With a First Attendance program, when a person opts to challenge the ticket, they may attend a one-on-one meeting with a prosecutor before the case proceeds to court. [My underlining]

This document indicates that the Ministry intended the first appearance scheme only to apply where the accused had already opted "to challenge the ticket" by so indicating on their Offence Notice within 15 days after service of the Offence Notice.

I see nothing in the document which suggests the Ministry contemplated the court office permitting an accused to defer filing a notice opting for a trial until after the expiry of the statutory 15 day deadline. Indeed, this could not be done without amending s. 9 of the Provincial Offences Act or unless the accused obtained a judicial officer's order under s. 85.

It would appear to me that Durham misunderstood how the Ministry intended the scheme to operate.

It seems to me that the Durham scheme could be fixed by using the Form 4 version of the Offence Notice and then, in a separate, unnumbered paragraph at the end, stating:

Making an appointment to meet a prosecutor

If you deliver this form to the court office and choose OPTION 3 with[in] 15 days, you may at that time make an appointment to discuss your case with a prosecutor before your trial date.

In addition, the First Attendance Notice would have to be amended to address the problems discussed above.

27The process outlined by Ferguson J. in Durham (Regional Municipality) v. Williams to make "first attendance meetings" with the prosecutor a valid scheme was also confirmed in R. v. Nandalall, 2008 CarswellOnt 8954 (Ont. S.C.J.), in which Langdon J., at paras. 18 to 26, also recognized Ferguson J.'s criteria and accepted this criteria to make a first attendance meeting scheme a lawful administrative option, as long as the first attendance meeting was set before the trial date and it had been listed as a sub-option of the third statutory option known as the Trial Option:

Option 4. The Administrative Option.

The fourth option of a defendant who, in Brampton, receives an offence notice under Part I of the P.O.A. is controversial. It is not provided for by statute. It is an administrative development that has apparently developed with the approval or assistance of the Ministry of the Attorney-General.

The purpose of the option is entirely salutary. It is to give the defendant who wishes to defend or dispute the charge an opportunity to meet with the prosecutor and discuss it. That discussion might lead to a guilty plea which could be taken straightaway in court, if the prosecutor and the offender meet at or near the court. It might lead to a plea of guilty with an explanation on the same basis. It might lead to a decision to defend the charge in which case a trial date would have to be set. It might lead to a compromise agreement which could then be implemented in court, under s. 45(4) P.O.A.

One such scheme was struck down as unlawful by Ferguson J. in Durham (Regional Municipality) v. Williams.

The principal reasons for the illegality stipulated in the decision were that the fourth option was worded in such a way as to make it appear that it was an entirely independent option, so that after the defendant met with the prosecutor, he might still exercise option 3, and give notice of intention to dispute the charge and have a trial. However, under the practice that developed in Durham, the meeting with the prosecutor might not occur until after the expiry of the 15 days stipulated in s. 9. The Region had accommodated the right to trial by not automatically registering a conviction following the 15 days, if a defendant had got an appointment with the prosecutor, within the fifteen days. The court pointed out that the provisions of s. 9 are mandatory. Thus the administrative practice of not proceeding straightaway to automatic conviction violated the command of the statute and was unlawful.

No deviation from the prescribed forms could be tolerated under the Interpretation Act, because the forms necessarily misled the defendant as to the time he had to exercise Option 3.

Moreover, while the P.O.A. in s. 85 permits extension of time for doing anything under the statue, such extension can be granted only judicially; thus court office personnel could not ignore the command of s. 9.

Illegality of the Brampton Fourth Option

Unfortunately the City of Brampton scheme falls prey to the same illegality. In the present case the offence notice was issued February 15, 2006. The defendant was thus obliged to exercise one of her options no later than March 2, 2006. The defendant here applied under "Option 4" on her offence notice, within 15 days and was given a "First Attendance Notice". That notice was returnable September 6, 2006. By that time the court was already obliged to have convicted the defendant, as she had not exercised one of the three statutory options.

As Ferguson J. ruled, in Durham v Williams, the administrative practice could have been made legal by the simple expedient of making "Option 4" a sub-option of Option 3. The offence notice could then advise the defendant that

If you deliver this form to the court office and choose Option 3 within 15 days, you may then make an appointment to discuss your case with a prosecutor before the trial date.

Then, as long as the administrative meeting is set before the trial date, or at the latest, on the trial date, the process would be regularized.

(iii) Information given to the defendant about the availability of the option of requesting a first attendance meeting with the prosecutor in the Mississauga jurisdiction

28When a person is charged with a Part I offence in the City of Mississauga, they are given a Notice of Offence that has been specifically created to be used in the jurisdiction of the Ontario Court of Justice – Provincial Offences Office in Mississauga. On the back of this Notice of Offence, there is a list of options set out for the accused person to read and includes the following sub-option under the Trial Option regarding a first attendance meeting with a prosecutor that states in both the English and French languages, "You or your representative may meet with a prosecutor in advance of a trial" or "Vous ou votre représentant pouvez rencontrer Ie poursuivant avant un process":

The English portion:

Important — If you do not exercise one of the following options within 15 days of receiving this notice, you will be deemed not to dispute the charge and a justice may enter a conviction against you. Upon conviction, additional costs will be added to the total payable. If the tine goes into default, an administrative fee will be added and steps will be taken to enforce your defaulted fine. For example, information may be provided to a consumer reporting agency and for certain offences, including speeding, your driver's licence may be suspended.

OPTION 1 — Plea of Guilty — Voluntary Payment of Total Payable: I plead guilty and payment of the total payable is enclosed (follow the instructions on the 'payment notice.')

OPTION 2 — Plea of Guilty — Submissions as to Penalty: I want to appear before a justice to enter a plea of guilty and make submissions as to penalty (amount of fine or time to pay). Note: You must attend the Court office shown below within the times and days shown. Bring this notice with you. Ontario Court of Justice, Provincial Offences Office City of Mississauga, Court House, 950 Burnhamthorpe Road West, Mississauga, Ontario Mon., Wed., Fri. 9 a.m. – 12 noon and 2:00 p.m. - 3:45 p.m. - Telephone (905) 615-4500

OPTION 3 — Trial Option — DO NOT MAIL — I want to appear before a justice to enter a plea of not guilty and to have a trial.

You or your representative MUST attend at the Court office at the times and days shown to file a notice of intention to appear in court. You cannot set a trial date by mail.

Bring this notice to the court office.

You or your representative may meet with a prosecutor in advance of a trial. For more information contact the court office below. Ontario Court of Justice, Provincial Offences Office City of Mississauga, Court House, 950 Burnhamthorpe Road West, Mississauga, Ontario Mon. to Fri., excluding Holidays 8:30 a.m. - 5:00 pm. - Telephone (905) 615-4500

The French portion:

Important — Si vous n'exercez pas l'une des options suivantes dans in délai de l5 jours à compter de Ia réception du présent avis, vous serez réputé(e) ne pas contester I'accusation et un juge pourra inscrire une déclaration de culpabilité contra vous. En cas de déclaration de culpabilite, des frais additionnels s'ajouteront au montant total exigible, En ca de défaut de paiement de l'amende, des frais d'administration s'ajouteront et des mesures seront prises pour exécuter le paiernent de votre amende. Par exemple, I'information peut être transmise à une agence de renseignements sur le consommateur et dans le cas de certaines infractions, dont l'excès do vitesse, votre permis de conduire pourra être suspendu.

OPTION 1 - Plaidoyer do culpabilité - Paiement volontaire du montant total exigible: Je plaide coupable et le montant total exigible est joint à Ia présente (suivre les instructions figurant sur « a l'avis de paiement »).

OPTION 2 - Plaidoyer do culpabilité - Observations au sujet de Ia peine: désire comparaître devant un juge pour inscrire un plaidoyer de non-culpabilité et présenter des observations au sujet de Ia peine (montant de l'amende ou délai de paiement). Remarque: Vous devez vous présenter au greffe du tribunal ci-après aux dates et heures indiquées. Apportes Ie présent avis, Cour de Justice de l'OntarIo, Bureau des Infractions Provinciales La Ville de Mississauga, Palais de Justice, 950, rue Burnhamthorpe Ouest, Mississauga (Ontario) Lundi, Mercredi et Vendredi de 9 H à 12 H et 14 H à 15H 45 - Téléphone (905) 615-4500

OPTION 3 – Procès - NE PAS ENVOYER PAR LA POSTE - Je désire comparaître devant un juge pour inscrire un plaidoyer de non-culpabilité et subir un procès.

Vous ou votre représentant DEVEZ vous présenter au greffe du tribunal aux dates et aux heures indiquées pour déposer un avis d'intention de comparaître devant le tribunal. Vous ne pouvez pas fixer la date du procès par courrier.

Apportez le present avis au greffe du tribunal.

Vous ou votre représentant pouvez rencontrer Ie poursuivant avant un procès. Pour des renseignements additionnels, veuillez communiquer avec le greffe du tribunal ci-dessous. Cour de Justice de I'Ontario, Bureau des Infractions Provinciales La Ville de Mississauga, Palais de Justice, 950, rue Burnhamthorpe Ouest, Mississauga (Ontario) Du Lundi au Vendredi, sauf les jours fériés, de 8 H 30 à 17 H - Téléphone (905) 615-4500

29In addition, the Notice of Offence that had been given to the defendant contained information about the first attendance option to meet with the prosecutor being available in advance of the trial, once an accused person filed a Notice of Intention to Appear.

30Furthermore, the "first attendance" option in both the English and French versions show that it was contained in the third statutory option as a sub-option, and as such, follows the criteria approved of by Ferguson J. in Durham (Regional Municipality) v. Williams and by Langdon J. in R. v. Nandalall for municipalities to establish this pre-trial administrative option, and as such, had been a valid option for the defendant to choose from.

(iv) The new "Early Resolution" option that came into force on March 1, 2012

31The former "first attendance" option is now statutorily established in the P.O.A. under s. 5.1(2) and can now be an independent and separate option for the defendant to choose from and no longer had to be included as a sub-option of the third statutory option described in Durham (Regional Municipality) v. Williams and R. v. Nandalall. This new early resolution meeting with a prosecutor option came into force on March 1, 2012, and is set out below:

Availability of meeting procedure

5.1 (1) This section applies where the offence notice requires the notice of intention to appear to be filed in person in the form prescribed under section 13.

Option for meeting with the prosecutor

(2) Instead of filing a notice of intention to appear under subsection 5 (3), a defendant may request a meeting with the prosecutor to discuss the resolution of the off,

(a) indicating that request on the offence notice; and

(b) delivering the offence notice to the court office specified on it within 15 days after the defendant was served with the offence notice.

Notice of meeting time

(3) Where a defendant requests a meeting with the prosecutor under subsection (2), the clerk of the court shall, as soon as is practicable, give notice to the defendant and the prosecutor of the time and place of their meeting.

Rescheduling the meeting time

(4) If the time for the meeting scheduled in the notice under subsection (3) is not suitable for the defendant, the defendant may, at least two days before the scheduled time of the meeting, deliver to the clerk of the court one written request to reschedule the time for the meeting and the clerk shall arrange a new meeting time to take place within 30 days of the time scheduled in the notice under subsection (3).

Notice of rescheduled meeting time

(5) Where a meeting time is rescheduled under subsection (4), the clerk of the court shall, as soon as is practicable, give notice to the defendant and the prosecutor of the rescheduled time and the place of their meeting.

Meeting by electronic method

(6) The defendant and the prosecutor may, if unable to attend in person because of remoteness, attend their meeting by electronic method in accordance with section 83.1.

Agreement on plea of guilty and submissions

(7) At their meeting, the defendant and the prosecutor may agree that,

(a) the defendant will enter a guilty plea to the offence or a substituted offence; and

(b) the defendant and the prosecutor will make submissions as to penalty, including an extension of time for payment.

Appearance before justice

(8) If an agreement is reached under subsection (7), the defendant shall, as directed by the prosecutor,

(a) appear with the prosecutor before a justice sitting in court and orally enter the plea and make submissions; or

(b) appear without the prosecutor before a justice sitting in court within 10 days, enter the plea orally and make the submissions in the form determined by the regulations.

Conviction

(9) Upon receiving the plea and submissions under subsection (8), the justice may,

(a) require the prosecutor to appear and speak to the submissions, if the submissions were submitted under clause (8) (b); and

(b) enter a conviction and impose the set fine or such other fine as is permitted by law in respect of the offence for which the plea was entered.

If no justice available

(10) If no justice is available after the meeting to conduct the proceeding under clause (8) (a), the clerk of the court shall, as soon as practicable, give notice to the defendant and the prosecutor of the time and place for their joint appearance before a justice.

Notice of trial

(11) The clerk of the court shall, as soon as is practicable, give notice to the defendant and the prosecutor of the time and place of the trial if,

(a) an agreement is not reached under subsection (7); or

(b) the justice does not accept the guilty plea and refers the matter to trial.

32The back of the new Notice of Offence provided to persons charged in the jurisdiction of the Ontario Court of Justice – Provincial Offences Office in Mississauga with a Part I offence after this new "early resolution meeting" option came into force on March 1, 2012, is set out below. It is noteworthy that the request to meet with a municipal prosecutor under the new scheme, which is the new option 2, is not a mandatory meeting, and is therefore, still a voluntary option for persons charged with a Part I offence to choose from:

Important — If you do not exercise one of the following options within 15 days of receiving this notice, you will be deemed not to dispute the charge and a justice may enter a conviction against you. Upon conviction, additional costs will be added to the total payable. If the fine goes into default, an administrative fee will be added and steps will be taken to enforce your defaulted fine. For example, information may be provided to a consumer reporting agency and for certain offences, including speeding, your driver's licence may be suspended.

OPTION I - Plea of Guilty - Voluntary Payment of Total Payable: I plead guilty and payment of the total payable is enclosed (follow the instructions on the 'payment notice.')

OPTION 2 - Early Resolution - Meet with Prosecutor (by choosing this option you do not forego the right to a trial):

I request a meeting with a prosecutor to discuss the possible resolution of the charge. I understand that if I fail to attend the scheduled meeting, I will be deemed not to dispute the charge and may be convicted in my absence. I request a ___________________ language interpreter. (Leave blank if applicable)

I live more than 75 km from the courthouse listed below and I would like to meet the prosecutor by telephone. You most send this notice to the Ontario Court of Justice, Provincial Offences Office at: 950 Burnhamthorpe Rd. W. Mississauga, Ontario L5C 3B4 You will be sent a meeting notice to the address on the file. You must notify the court if your address changes.

OPTION 3 - Trial Option - DO NOT MAIL - I intend to appear in court to plead not guilty and to have as English language trial. You or your representative MUST attend in person at the court office shown below within the times and days shown to file a notice of intention to appear in court. Bring this notice with you. Ontario Court of Justice, Provincial Offences Office 950 Burnhamthorpe Rd. W., Mississauga, Ontario L5C 3B4 Monday to Friday, excluding Holidays 8:30 a.m. - 4:30 p.m. Telephone (905) 615-4500

Important - Si vous n'exercez pas l'une des options suivantes dans un délai de 15 jours à compter de Ia réception du présent avis, vous serez réputé(e) ne pas contester l'accusation et un juge pourra inscrire un déclaration de culpabilité contre vous. Sur déclaration de culpabilité, des frais additionels s'ajouteront au montant total exigible. En cas de défaut de paiement de l'amende, des frais d'administration s'ajouteront et des mesures seront prises poor exécuter le paiement de votre amende. Par exemple, I'information peut être transmise à une agence do renseignements sur le cōnsommateur et dans le cas de certaines infractions, dont l'excès de vitesse, votre permis do conduire peut être suspendu.

OPTION 1 - Plaidoyer do culpabilité - Paiement volontaire du montant total exigible: Je plaide coupable et le montant total exigible est joint à Ia présente (suivre les instructions figurant sur « a l'avis de paiement »).

OPTION 2 - Résolution rapide - Rencontre avec le poursuivant (Si vous choisissez l'option suivante, vous ne renoncez pas au droit d'obtenir un procès):

Je désire une rencontre avec le poursuivant pour discuter du règlement relatif à l'infraction. Je comprends que si je n'assiste pas à Ia rencontre, je serai réputé ne pas contester l'accusation et un juge pourra inscrire une déclaration de culpabilité contre moi en mon absence. Je demande l'aide d'un interpréte de langue ____________________________. (Ne rien inscrire si inapplicable.)

J'habite à plus de 75 km du palais de justice mentionné ci-dessous et j'aimerais que la rencontre avec le poursuivant ait lieu par téléphone. Vous devez envoyer le présent avis au bureau des infractions provinciales à Ia Cour de justice de l'Ontario: 950, rue Burnhamthorpe Ouest Mississauga (Ontario) L5C 3B4 Vous recevrez un avis de rencontre à l'adresse figurant au dossier. Vous devez aviser le tribunal si vous changez d'adresse.

OPTION 3 – Procès - NE PAS ENVOYER PAR LA POSTE - Je désire comparaître devant un juge pours inscrire un plaidoyer de non-culpabilité et subir un procès en français. Vous ou votre répresentant DEVEZ vous présenter au greffe du tribunal aux dates et aux heures indiquées pour déposer un avis d'intention de comparaître devant le tribunal. Apportez to présent avis au greffe du tribunal. Cour de Justice de l'OntarIo, Bureau des Infractions Provinciales 950, rue Burnhamthorpe Ouest, Mississauga (Ontario) L5C 3B4 Du Lundi au Vendredi, sauf les jours fériés, de 8 H 30 à 16 H 30 Téléphone (905) 615-4500

33In addition, there are two major procedural differences between the new "early resolution meeting" option under s. 5.1(2) of the P.O.A. and the former "first attendance" option. The first difference is that the accused person does not now have to first file a Notice of Intention To Appear before requesting a meeting with a prosecutor, but can request the meeting as a separate option, and only when the charge cannot be resolved through the meeting with the prosecutor or the court does not accept the resolution and directs a trial on the charge, can a Notice of Trial then be issued. However, despite this new early resolution option that came into force on March 1, 2012, an accused person who wishes to dispute their charge can still request a trial to be scheduled within 15 days of receiving the Notice of Offence instead of choosing the early resolution option.

34More important, however, is the second change under the new early resolution process and on what happens when an accused person requests an early resolution meeting but then fails to appear for that meeting. Under the new early resolution process, the accused person will now face a conviction under the "deem not to dispute" process, instead of the matter being automatically set down for trial, as had been the case of failing to appear for the first attendance meeting in the former scheme. This potential to be convicted for failing to appear for the early resolution meeting with a prosecutor would seem to be an answer to frivolous requests for early resolution meetings by accused persons who have no intention of appearing, but who use the request as a strategy to delay dealing with the charge. People who request early resolution meetings and then not appear for them, inevitably put a strain on administrative, prosecutorial, and judicial resources. Moreover, this "deem not to dispute" process in the context of attributing delay in a claim of infringement under s. 11(b) would also not benefit an accused person who requests this particular meeting and then fails to appear for the scheduled early resolution meeting. This new deeming process is contained in s. 9(1)(b) of the P.O.A. and is set out below:

Deemed not to dispute charge

9 (1) A defendant is deemed to not wish to dispute the charge where,

(a) at least 15 days have elapsed after the defendant was served with the offence notice and the defendant did not give notice of intention to appear under section 5, did not request a meeting with the prosecutor in accordance with section 5.1 and did not plead guilty under section 7 or 8;

(b) the defendant requested a meeting with the prosecutor in accordance with section 5.1 but did not attend the scheduled meeting with the prosecutor; or

(c) the defendant reached an agreement with the prosecutor under subsection 5.1 (7) but did not appear at a sentencing hearing with a justice under subsection 5.1 (8). 2009, c. 33, Sched. 4, s. 1 (13).

(v) The "First Attendance Request Form" Completed By The Defendant On April 29, 2011

35In the "First Attendance Request Form" that the defendant had filled out and submitted on April 29, 2011, to request the first attendance meeting with a prosecutor, contained the pre-printed statement, "I would like a first attendance meeting with the Prosecutor before setting a trial date", and with the options of "yes" or "no" to check off. The defendant had checked off the "yes" option on his request form. This checked-off option to request a first attendance meeting with a prosecutor was also an acknowledgement by the defendant that he had voluntarily opted to have this first attendance meeting before setting a trial date and that it is further evidence that the defendant had been aware that a trial date would not be set until after the first attendance meeting:

First Attendance Request Form Ontario Court of Justice Provincial Offences Office City of Mississauga 950 Burnhamthorpe Rd W Mississauga, ON L5C 3B4 (905) 615-4500

Ticket Number: 4498399A Offence Date: 24 04 2011 Day Month Year Last Name: LAM First Name: MICHAEL

I would like a first attendance meeting with the Prosecutor before setting a trial date. Yes ☐ No _______ [number removed for privacy] Your Phone number ____ --_ Your Signature: "Michael Lam" Today's Date: 29 04 2011 Day Month Year

(vi) The "First Attendance Notice" given to the defendant

36The defendant had also been provided information that was contained within the "First Attendance Notice" issued to him by Court Administration, after he made the request for the first attendance meeting, that informed him of his meeting date with the prosecutor and that if he did not appear for the first attendance meeting on September 29, 2011, then his charge would be automatically set down for trial after that date and that a notice of the trial date would then be sent to him. This is further evidence that the defendant had been made aware that a trial date for his speeding charge would not be scheduled until after his first attendance meeting was held, as well being aware that when he had requested a meeting with the prosecutor when he had first filed his Notice of Intention to Appear, that the scheduling of a trial date for his speeding charge would be delayed until after the first attendance meeting was held:

First Attendance Notice/Avis de premiére comparution [information pertaining to defendant removed for privacy]

TO: MICHAEL J LAM [address removed]

This notice will confirm that a first attendance appointment has been scheduled in the English language, on the Le present avis confirme qu'une rencontre de premiére comparution en anglais a été fixée au 29th day of/jour de SEPTEMBER, 2011, at/a 10:00 a.m. At/a # ATT1, , 950 BURNHAMTHORPE RD W. , MISSISSAUGA, ON L5C 3B4

Regarding the offence of/en ce qui concerne l'infraction a SPEEDING HIGHWAY TRAFFIC ACT Section/article 128

You or a representative authorized by you to act on your behalf must appear at the above time. At the time fixed for your appointment, a prosecutor will be available to discuss the charge(s) with you or your representative. If you or your representative do not attend in person at the time fixed for this appointment, a Notice of Trial will be issued. If you do not attend the trial, a justice may enter a conviction against you in your absence. Upon conviction, additional costs will be added to the total payable. If the fine goes into default, an administrative fee will be added and steps will be taken to enforce your defaulted fine. For example, information may be provided to consumer reporting agency and for certain offences, include speeding, your driver's licence may be suspended. Should you have any further questions regarding this appointment please call (905) 615-4500.

FOR INFORMATION ON ACCESS TO ONTARIO COURTS FOR PERSONS WITH DISABILITIES, CALL 1-800-387-4456 TORONTO AREA 416-326-0111 POA 0807 CSD (rev 11/03) (posted / affich ée 03/01/05)

Vous devez comparaétre à l'heure mentionnée c-dessus, que ce soit en personne ou par le biais d'un représentant autorisé. L'heure fixée pour votre rencontre, un poursuivant pourra s'entretenir avec vous ou avec votre represéntant sur les accusations. Si vous ou votre represéntant ne comparaissez pas en personne a l'heure fixée pour cette rencontre, un avis de process peut être émis. Si vous n'assistez pas au process, un juge peut vous declarer coupable en votre absence. Au moment, vous êtes declare(e) coupable, des frais supplémentaires s'ajouteront au montant total à payer. S'il y a défaut de paiement de l'amende, des droits administratifs seront ajoutés et des measures seront prises pour percevoir l'amende impayée. L'information, par exemple, pourrait être transmise à une agence de renseignements sur le consommateur. Dans certains cas, notamment si l'accusation concerne un excés de vitesse, votre permis de conduire risqué d'être suspend. Pour toute question sur cette rencontre, Veuillez appeler (905) 615-4500. POUR PLUS RENSEIGNEMENTS SUR L'ACCÉS DES PERSONNES HANDICAPÉES AUX TRIBUNAUX DE L'ONTARIO, COMPSEZ LE 1-800-387-4456 RÉGION DE TORONTO 416-326-0111

(vii) Had The Defendant's Request For A First Attendance Meeting Been A Waiver By The Defendant Of The Delay In Question?

37On the issue of whether the defendant's formal request for the first attendance meeting would be a waiver by the defendant of the delay associated with the scheduling of the first attendance meeting, it was ultimately decided in the unreported decision of R. v. Syed Khan, dated January 7, 2011 (Halton Provincial Offences Court file no. 95128045) (O.C.J.), by Zisman J., sitting as a Provincial Offences Appeal Court, that the period relating to the scheduling of the first attendance meeting with a prosecutor was an "implied waiver" by the accused person, since the accused had opted to schedule a first attendance meeting with the prosecution when the Notice of Intention to Appear had been filed instead of requesting that a trial be scheduled for the charge. Zisman J's ruling was also extensively mentioned in a decision from my brother, Dechert J.P., rendered on September 17, 2012 (just eight days before the present application was argued) in R. v. Wong 2012 ONCJ 589 (O.C.J.), in which Dechert J.P. distinguished the case before him from the facts in R. v. Syed Khan and held that the period related to the scheduling of the first of two "first attendance" meetings had not been a waiver by the accused person, as he was not satisfied that the stringent test for waiver had been made out on the evidence before him, but instead held the delay in question should be considered to be a "neutral intake period" that is excluded from the overall length of the delay and not as institutional delay or delay caused by the prosecution.

38In R. v. Wong, at paras. 78 to 83, Dechert J.P. first referred to the unreported decision of R. v. Syed Khan and Zisman J.'s determination that when an accused person opts for a first attendance meeting with a prosecutor at the same time he files the Notice of Intention To Appear, instead of requesting that a trial date be scheduled, is for the purposes of the 11(b) inquiry, an implied waiver by the accused person of the delay associated with scheduling and holding the first attendance meeting:

In her unreported decision in Regina v. Syed Khan, (Halton Provincial Offences Court file no. 95128045) dated January 7th, 2011, Madam Justice R. Zisman, sitting as a P.O.A. Appeal Court, ruled that a defendant charged with a Part I P.O.A. offence and who requests a first attendance appointment with the prosecutor at the same time as he/she files his Notice of Intention to Appear, implicitly waives the period between the date when the first attendance appointment was requested and the date of the actual appointment with the prosecutor.

In upholding the decision of the trial justice of the peace, denying the appellant's Charter application … Zisman J. stated, in part, as follows:

So then we have to look at whether there is a waiver to any of the time periods and, in my view, there is an implicit waiver by Mr. Khan in this case by agreeing to the first attendance. So I would deduct those three months. If I look at the reasons for the delay as required by Morin, I agree that on a speeding ticket that there are no inherent delays in terms of getting a case ready, but the actions of the defendant become relevant in terms of asking for an administrative delay. ...I think the Justice of the Peace was correct. That in all of the circumstances it is not an unreasonable delay in view of the fact that part of the confusion is caused by the defendant and there is no prejudice to him, in my view.

It is noted that in reaching her decision that a person who requests a first attendance appointment with a prosecutor in respect of a Part I P.O.A. charge, accepts a delay in the setting of a trial date, Madam Justice Zisman characterized the procedure as "an administrative process", noting that "nobody has to agree to it". In this regard, the jurist stated that "if you want your trial, you can just stand on your grounds to have a speedy trial", once again remarking that "you don't need to agree to this administrative process".

Furthermore, during her discourse with the defendant's representative in this appeal, Zisman J. maintained that when a defendant requests a first attendance appointment at the time that he/she files the Notice of Intention to Appear, defendant is, by taking that step, "essentially agreeing to a delay, because he's bypassed the trial. He's going onto his first attendance".

In analyzing the appellant's actions in the subject appeal in requesting the first attendance appointment procedure, Madam Justice Zisman made the following comments:

But he doesn't have to agree to it. That's the point that's being raised. He, he doesn't have to agree to a first attendance court. He can just ask - if he fills in the front of this form, right, that says I want a trial date and doesn't check off first attendance he's going to get a trial notice. That's the way I understand the process

So, what he's done is taken an added step. He said, no, no, no. I want to meet with the Crown. I want to see if I can resolve - or the prosecution. That's what he's done. So, he has delayed the process by asking for this administrative hearing....

During the course of receiving the parties arguments during this appeal, Madam Justice Zisman responded to the concern raised by the appellant's representative that the defendant has no control over the timing of the first attendance meeting after he/she has requested the meeting, by noting that a defendant doesn't have to accept a lengthy delay in that regard. The jurist went on to note that in that circumstance the defendant could simply cancel the first attendance, because of the unacceptable delay, thereby causing the court administration to set a trial date.

39Furthermore, in R. v. Wong, Dechert J.P. engaged in a lengthy and thorough analysis of the law that has developed in respect to assessing the reasons for delay and the framework for conducting 11(b) inquiries before finding, at paras. 127 to 134 and 159 to 164, that the delay involved in scheduling the initial "first attendance" meeting after the Notice of Intention To Appear had been filed by the accused person had not been waived by that particular accused person. He further held that there had been no evidence before him on which he could reasonably infer that the accused person had been aware of her rights under subsection 11(b) of the Charter, understood those rights and was consciously giving up her rights by asking for a first attendance appointment, and that the particular delay from requesting the first attendance meeting to the date of the scheduled meeting was properly considered to be a "neutral intake period" that did not count toward any of the institutional delay in getting to trial:

In her unreported decision in Regina v. Syed Khan, supra, rendered on January 7th, 2011, Madam Justice Zisman found that an approximate three month period between the time that the defendant filed his "Request for First Attendance" form with the court until the date of the first attendance appointment, was a period for which the defendant, Mr. Khan had implicitly waived his section 11(b) Charter rights. In reaching this decision, the jurist noted that the defendant voluntarily sought an opportunity to attempt to resolve the charge against him, through a pre-trial meeting with the prosecutor. She was able to draw a reasonable inference that by accepting the first attendance appointment, the defendant was content to wait until the first attendance meeting itself and explore that opportunity prior to asking the Court to fix a trial date.

While I acknowledge that I am bound by the principles set out in this decision, as they relate to first attendance appointments, I am of the view that Madam Justice Zisman's decision is distinguishable from the facts of the case at bar, when I compare the facts with the comments made by Sopinka J. in Regina v. Morin, supra, relative to the concept of implicit waiver.

In the case at bar, the defendant filed her Notice of Intention to Appear and Request for First Attendance on the date of the alleged offence (May 17th, 2010). There is no evidence before the Court whereby I could reasonably infer that at the time of filing those two documents the defendant was aware of her rights under subsection 11(b) of the Charter, understood those rights and was consciously giving up her said rights by asking for a first attendance appointment relative to the subject charge.

It is acknowledged that on June 11, 2010, the defendant attended in the Burlington Provincial Offences Court and requested a postponement of the initial first attendance appointment scheduled for July 12th, 2010. The actions of the defendant in seeking to re-schedule the first attendance appointment permits me to draw a reasonable inference that the defendant wanted an opportunity of meeting with a prosecutor to attempt to resolve the subject charge and that she was content to wait until the conclusion of the first attendance procedure before requesting the issuance of a Notice of Trial.

On the other hand, the defendant's action in seeking to re-schedule the first attendance appointment, because she was "going to be out of town" on July 12th, 2010, is not consistent with a finding that she knew that she had a right to be tried of the charge within a reasonable time and was willing to unequivocally give up that right up until the time of the first attendance meeting.

In my view the mere fact that the defendant requested a first attendance meeting with the prosecutor and subsequently requested that it be re-scheduled, does not mean that the defendant understood that she was giving up her constitutional right to be tried of the subject offence within a reasonable time, relative to the time between the filing of the request for the meeting and the date of the meeting. The period of time between May 17th, 2010 and August 16th, 2010, cannot therefore be considered to be a period of time over which the defendant has implicitly waived her subsection 11(b) Charter rights.

... Furthermore, while I am of the opinion that the defendant's actions in requesting a first attendance appointment and her subsequent actions in seeking to re-schedule the appointment, fall short of actions indicative of an implicit waiver of her subsection 11(b) rights between May 17th, 2010 and August 16th, 2010, I am of the view that her actions in electing to explore an opportunity to resolve the charge through a first attendance meeting were voluntary actions undertaken by the defendant which contributed to the trial delay in this matter.

While I will re-address these issues in the portion of my judgment dealing with inherent time requirements of the case and actions of the accused in either causing or contributing to the trial delay, I am of the view that the delay during the period between May 17th, 2010 and August 16th, 2010, cannot be classified as either institutional delay or delay caused by the actions of the prosecution.

Actions of the Accused

As stated by Sopinka J. in Morin, supra, this element is relevant to those actions which are "voluntarily undertaken" by the accused and "which may have caused delay". The jurist went on to identify a number of procedural or strategic motions or applications which might be pursued by an accused prior to trial and which could either cause or contribute to trial delay. He noted that it would be appropriate to take such actions into account in the process of assessing the reasonableness of the length of any particular trial delay.

In the case at bar, at the time that the defendant filed her "Notice of Intention to Appear" on May 17th, 2010, she also filed a "Request for First Attendance". In taking this voluntary step and choosing the option of meeting with a prosecutor in an attempt to reach a resolution of the charge, it would appear that the defendant understood that in electing the first attendance appointment procedure she was acquiescing to the temporary suspension of the issuance of a Notice of Trial until after the time of the first attendance appointment.

An objective consideration of the defendant's actions in this regard, leaves me with only one rational conclusion; that the defendant voluntarily exercised her option to meet with the prosecutor prior to setting a trial in the matter, fully understanding that at trial date for the charge would not be set until the completion of the first attendance meeting process.

Accordingly, the defendant's actions of May 17th, 2010 in requesting a first attendance appointment rather than seeking the immediate issuance of a Notice of Trial and applying for a postponement of the first attendance appointment, re-scheduling the appointment for August 16th, 2010, may be properly described as strategic actions taken by the accused, which, in turn, contributed to a delay in the scheduling of a trial date for the subject charge.

I therefore find that the period of delay between May 17th, 2010 and August 16th, 2010 should be apportioned such that the period between May 17th, 2010 and June 16th, 2010 be characterized as a neutral "intake period", and that the period between June 17th, 2010 and August 16th, 2010, be characterized as delay precipitated by the actions of the accused in exercising the administrative option of a first attendance meeting with the prosecutor. This latter period of time, being a period of 1 month and 29 days weighs against the defendant for purposes of the subsection 11(b) analysis herein.

40On the other hand, when the accused person in the R. v. Wong case sought an adjournment of the initial scheduled meeting with the prosecutor, Dechert J.P. found that the delay related to the second scheduled first attendance meeting had been caused by the "actions of the accused" and rightfully deducted from the overall length of the delay.

41In short, the delay associated with scheduling the first attendance meeting in R. v. Syed Khan, was determined to be an implied waiver by the accused, while in R. v. Wong, it was held to be a "neutral intake period" for the first scheduled "first attendance" meeting and "actions of the accused" for the second scheduled meeting. Regardless, neither Zisman J.'s determination in R. v. Syed Khan or Dechert J.P.'s ruling in R. v. Wong found the delay concerning the first attendance meeting to be institutional delay. In addition, Hill J.'s reasoning in R. v. Du Carmur, [2007] O.J. No. 3369 (QL) (Ont. S.C.J.), that meetings voluntarily requested by an accused person for the purpose of resolution is part of the "neutral intake period" is equally applicable to voluntary first attendance meetings whose function or purpose is for the resolution of the charge at the pre-trial stage.

42Thus, these decisions underscore that courts have made different findings in the 11(b) inquiry for voluntarily requested meetings, such as voluntary judicial pre-trials or first attendance meetings, by attributing these meetings as either waiver by the accused, actions of the accused, or as part of the neutral intake period, which were based on their assessment of the circumstances surrounding the request for the meeting or when the function or purpose of the meeting is taken into consideration.

43In returning to the case at bar and the issue of waiver, the questions that need to be resolved are whether the defendant had been aware about his rights to a speedy trial, understood what those rights entailed, and had been aware that by requesting a first attendance meeting with a municipal prosecutor and not requesting that a trial be scheduled for his speeding charge that he had consciously giving up those rights to complain about that particular delay associated with requesting this pre-trial meeting.

44Although the test for finding implicit waiver is as stringent as the test for finding explicit waiver, in finding that there has been a waiver by the defendant by implication, does not necessarily require there be explicit evidence, such as a declaration of statement or acknowledgment from the defendant that he had been fully aware of his specific right under s. 11(b) to a trial within a reasonable time, had understood what those rights entailed, and that he had been aware of consciously giving up his rights by asking for a first attendance appointment. Furthermore, it is essential to keep in mind that waiver can be either explicit or implicit, and that implicit waiver can be inferred from the defendant's actions. In other words, the awareness or knowledge required for finding a waiver could be imputed to the defendant from his actions in dealing with his charge. As such, if there is cogent evidence that the defendant had been aware that a trial would not be scheduled until after the occurrence of the first attendance meeting, yet chose to have this optional meeting, is a circumstance for which it can be reasonably inferred that the defendant was willing to wait for the meeting with the prosecutor before a trial on the charge would or could be set.

45Evidence that the defendant would have been aware there would be delay in scheduling a trial for his speeding charge and that it would not be scheduled until after the first attendance meeting is found in the information provided to the defendant that had been contained in the First Attendance Request Form that he had filled out and submitted on April 29, 2011, and in the Notice of the First Attendance Meeting that had been sent to him. Thus, based on the information provided to the defendant in the First Attendance Request Form that a trial date on the speeding charge would not be scheduled until after the first attendance meeting and the defendant's conduct in opting for the first attendance meeting instead of requesting a trial be scheduled is sufficient to find that the defendant had implicitly waived his right to complain of the delay related to the scheduling of the first attendance meeting, since he would have been fully aware and apprised that he would have to wait longer before he could set a trial date and that the delay in being able to schedule his trial would be a natural consequence of requesting a first attendance meeting.

46Moreover, the defendant would not be able to subsequently argue that he was not aware that a trial would or could not be scheduled right away when he had filed his Notice of Intention to Appear, considering that at the time he had filled out the First Attendance Request Form he had checked off, "I would like a first attendance meeting with the Prosecutor before setting a trial date." Furthermore, in the context of a claim of an infringement of the right to a trial within a reasonable time, this Request Form signed by the defendant would be evidence of his awareness or knowledge that a trial date for his speeding charge could not be scheduled until after he had the first attendance meeting with the prosecutor. In addition, by submitting the request for a first attendance meeting he had implicitly accepted the delay involved to schedule the trial of his speeding charge until after the first attendance meeting, that he had himself delayed the scheduling of his trial until after the first attendance meeting at the time he had formally requested the first attendance meeting, and that he had been willing to wait until after the meeting before deciding whether he would request a trial date be scheduled for his speeding charge.

47Furthermore, the defendant cannot now, after he had voluntarily requested the first attendance meeting, say he had not been aware at the time that he made the request that there would be a delay in scheduling a trial for his speeding charge or that a trial date could not be set until after the first attendance meeting. Ergo, as a consequence of his opting for a meeting with the prosecutor to be held first, then for the purposes of the 11(b) inquiry, it would be an implied waiver of the delay associated with waiting for the first attendance meeting with a prosecutor.

48However, for the present circumstances, although the conduct of the defendant in requesting a pre-trial meeting with the prosecutor is a logical and valid basis for finding that there had been an implied waiver by the defendant of the delay associated with meeting the prosecutor in advance of the trial, the more appropriate or practical classification of this particular delay for the present inquiry is that it should be considered as a part of the neutral intake period, similar to voluntary meetings that are requested for the function or purpose of a resolution of the charge. In other words, the function or purpose of the first attendance meeting is analogous to the situation described by Hill J. in R. v. Du Carmar that had been concerned with a request for a voluntary judicial pre-trial meeting to assist in resolution discussions, in which he determined that the delay associated with requesting a voluntary meeting for that purpose had been part of the neutral intake period. As such, I agree with Dechert J.P.'s reasoning in R. v. Wong where he had attributed the delay from the date a request for a first attendance meeting had been made at the same time a Notice of Intention To Appear had been filed, to the date of the first attendance meeting, not to be institutional delay or delay caused by the prosecution, but a neutral intake period.

49On the other hand, when the situation arises where there may be an unusually excessive or lengthy period that occurs in scheduling a pre-trial meeting, then the period in excess over what is normal period for a particular jurisdiction to schedule such a meeting could be considered institutional delay: R. v. Tieu 2012 ONCJ 536 (O.C.J.), at para. 17.

50However, for the case at bar, although five months appears fairly long for scheduling and holding a meeting with a prosecutor, the time involved is significantly less than the 8 to 10 month administrative guideline of tolerable delay established in R. v. Morin to get a trial in the Provincial Courts. Hence, a period of 4 to 5 months would not seem to be exceptional or unreasonable for Court Administration to schedule a first attendance meeting with a prosecutor on the next open or available date, since Court Administration would not have to consider the schedule of the enforcement officer who issued the Certificate of Offence and would only need to schedule the first attendance meeting at the point immediately after all the previously scheduled or booked first attendance meetings. Moreover, a range of 4 to 5 months for scheduling a first attendance meeting would still be only half of the administrative guideline of 8 months to 10 months, and when taking into consideration the possibility that the same number of people who are charged with Part 1 offences would also desire a first attendance meeting with a prosecutor prior to scheduling a trial for their matter, then that range would not appear to be an unusual amount of time.

51Furthermore, the amount of delay involved in scheduling and holding a first attendance meeting with a prosecutor that had been mentioned in the unreported decision of R. v. Syed Khan, had been three months, and for the first attendance meeting in R. v. Nandalall, 2008 CarswellOnt 8954 (Ont. S.C.J.), it had been 6 months, which are not too dissimilar from the five months in the case at bar.

52Moreover, it is also logical to infer that a large portion of those charged with Part I regulatory offences would likely choose the first attendance option to meet with a prosecutor before opting to set their matter down for trial. This in turn would mean that additional administrative, prosecutorial, and judicial resources would be required to deal with those who choose the first attendance option, and if their matter is resolved as a result of the first attendance meeting, then there would also be the need to utilize courtrooms to deal with those matters.

53Although the burden of proof in this application is on the defendant to show that his right to a trial within a reasonable time has been infringed, there is no evidence that 5 months is an excessive period of time to be able to schedule a meeting with the municipal prosecutor. One can further deduce that if nearly everyone or if a majority of the persons that receive a Part I charge decide to request a first attendance meeting, then it would be logical to expect that virtually the same number of matters would have to be scheduled for a first attendance meeting as it would be for setting trials for the same matters and that it would take roughly the same amount of time or many months before a date could be set to meet with the prosecutor.

54Furthermore, it can readily be seen that the underlying purpose and merit of this administrative practice or procedure of holding first attendance or early resolution meetings with the prosecutor, is to provide persons charged with a Part I regulatory offence an early opportunity to resolve the charge without having to just pay the set fine on the Certificate of Offence as an out-of-court settlement or to setting the charge down for a trial and then waiting for the trial date before an accused person could actually meet or speak with a prosecutor for the first time. Also, the first attendance meeting with a prosecutor is a process used by the prosecution and persons charged with Part I regulatory offences to resolve charges without a trial and to resolve charges at a much earlier date than waiting to do so on the scheduled trial date.

55Moreover, these "first attendance meetings" as an administrative practice or extra-trial scheme would appear to benefit both accused persons and municipalities responsible for prosecuting Part I regulatory offences. For an accused person charged with a minor regulatory offence they would save legal fees in not having to hire legal representation for conducting a trial on the charge, while municipalities responsible for providing courtrooms and prosecutors and other resources should be able to alleviate overburdened courtrooms by not having to schedule a trial for every minor regulatory matter in which a Notice of Intention is filed. On the other hand, courtrooms, and administrative, prosecutorial and judicial resources, would still be needed to facilitate these first attendance meetings that end up being resolved without a trial.

56Therefore, considering that the defendant did voluntarily request a first attendance meeting with a prosecutor to discuss the speeding charge for the purposes of resolution, knowing that a trial would not be scheduled until after the meeting, then the delay associated with the scheduling and conducting of the first attendance meeting would be properly classified as part of the "neutral intake period", analogous to Hill J.'s reasoning in R. v. Du Carmur, [2007] O.J. No. 3369 (QL) (Ont. S.C.J.).

(viii) The defendant's argument that the five-month period for the first attendance meeting should not be attributable to the defendant on account of not being provided disclosure prior to meeting with the prosecutor

57To bolster his argument that the delay related to the first attendance meeting should be considered to be inexcusable delay, the defendant also submits that the first attendance meeting had been fruitless because disclosure had not been provided to the him prior to that meeting being held, and as such, argues that this particular period of delay should not count against him. However, the defendant did not make a request for disclosure on the date he filed his Notice of Intention to Appear on April 29, 2011, nor during that five-month period between April 29, 2011 and September 29, 2011. In fact, a written request to the prosecution for disclosure had not been made by the defendant until October 11, 2011, some 5 months and 12 days after the defendant's Notice of Intention to Appear had been filed.

58Furthermore, it had been up to the defendant to initiate the process to obtain disclosure, as the Supreme Court of Canada articulated in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.), at para. 28, that the prosecution's obligation to provide disclosure is not triggered until the defendant makes a request for disclosure and that such request for disclosure should also be made by the defendant in a timely fashion:

The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any time after the charge. Provided the request for disclosure has been timely, it should be complied with so as to enable the accused sufficient time before election or plea to consider the information. In the rare cases in which the accused is unrepresented, Crown counsel should advise the accused of the right to disclosure and a plea should not be taken unless the trial judge is satisfied that this has been done. At this stage, the Crown's brief will often not be complete and disclosure will be limited by this fact. Nevertheless, the obligation to disclose is a continuing one and disclosure must be completed when additional information is received.

59Moreover, the defendant should not be able to rely on his own inaction in not requesting disclosure as a ground for arguing that the delay or period associated with scheduling the first attendance meeting should be counted as institutional delay or that the delay should be attributed to the prosecution. Accordingly, the unavailability of disclosure for the first attendance meeting in the particular circumstances of the case at bar does not put the cause of the delay associated with the first attendance meeting at the feet of the prosecution, so as to count as inexcusable or institutional delay.

3. DETERMINATION OF THE INEXCUSABLE, INSTITUTIONAL, OR SYSTEMIC DELAY

60The overall length of the delay under consideration in this 11(b) inquiry is 18 months and 29 days, which is the period between April 29, 2011, when the defendant had filed the Notice of Intention to Appear, to November 27, 2012, when my ruling on the 11(b) application is to be given and for the "third" scheduled trial date for the speeding charge, which clearly exceeds the administrative guideline of 8 to 10 months of acceptable institutional or systemic delay in the Ontario Court of Justice to obtain a trial, and triggered a further inquiry into the reasonableness of the overall length of delay.

(a) Scheduling The First Attendance Meeting: The Period Between April 29, 2011, to September 29, 2011

61On the question of how to treat the five-month delay from April 29, 2011, to September 29, 2011, that is associated with the scheduling and holding the first attendance meeting with the prosecutor, that period can be regarded as an implict waiver by the defendant since the defendant had opted on April 29, 2011, to have a voluntary or optional first attendance meeting with the prosecutor; however, since the purpose or function of the first attendance meeting is for the resolution of the charge then it is more suitable and practicable for the 11(b) paradigm to find this delay as part of a "neutral intake period" that is to be deducted from the overall length of delay.

62When this five-month period for the first attendance meeting is deducted from the overall length of delay of 18 months and 29 days, the remaining length of delay is 13 months and 29 days.

(b) Scheduling The First Trial Date: The Period Between September 29, 2011 To May 23, 2012

63The period from setting the first trial date on September 29, 2011, to the trial date of May 23, 2012, was 7 months and 24 days. Except for a reasonable period of intake to be deducted from this 7 month and 24 day period, what remains after that deduction would be institutional or systemic delay.

(c) The Inherent Time Requirements Particular To The Case

64After a thorough analysis of what would constitute a reasonable intake period for a Part I regulatory offence in the City of Toronto that had been based on a proper factual foundation, Libman J. in Toronto (City) v. Andrade 2011 ONCJ 470 (O.C.J.), held that a reasonable neutral intake period should be in the range of 30 to 45 days, with a 30-day intake period for an accused person who files their Notice of Intention to Appear near the beginning of the 15 days in which an accused person has to file the Notice and 45 days for an accused person who files the Notice near the end of the 15 day period permitted to file the Notice. This intake period established for the City of Toronto of 30 to 45 days would equally apply to Part I regulatory offences arising in the City of Mississauga. Hence, 31 days will be subtracted from the overall length of delay.

65This "neutral intake period" of 31 days, which is appropriate for this particular Part I regulatory proceeding, to fulfill disclosure obligations, to schedule a trial, to notify witnesses and the prosecution and defence of the trial date, after being deducted from the overall delay would now leave a delay of 12 months and 28 days.

(d) Scheduling The Second Hearing Of The 11(B) Application And The Second Trial Date: The Period Between May 23, 2012 To September 26, 2012

66The period from the first trial date of May 23, 2012, when the defendant's legal representative first attempted to argue the 11(b) application, to September 26, 2012, when the application was actually argued before this court was 4 months and 3 days. On May 23, 2012, the defendant's legal representative had not been permitted to argue the application without providing evidence of what had occurred on September 29, 2011, in regards to the first attendance meeting. The delay necessitated by the adjournment was to allow the preparation of an affidavit from the defendant and to provide an evidential record for what occurred at the first attendance meeting so as to properly inform the court on what had occurred on September 29, 2011, and to also permit the scheduling of a date for the second trial date and for the 11(b) application to be argued.

67Ergo, for the period between May 23, 2012, the first scheduled trial date, and September 26, 2012, the second scheduled trial date and the date the 11(b) application was argued before this court, neither the prosecution nor the defendant should be faulted for this period of delay because of the judicial officer not permitting the application to be argued on May 23, 2012, without a proper factual foundation. Therefore, this period of 4 months and 3 days will be a neutral period and not counted as institutional or inexcusable delay.

68With the deduction of this neutral period, the remaining length of delay is now 8 months and 25 days.

(e) Scheduling The Date For The Court's Ruling On The 11(B) Application And The Third Trial Date: The Period Between September 26, 2012 And November 27, 2012

69The period of 2 months and 1 day from September 26, 2012, when the 11(b) application was finally argued, to November 27, 2012, was to allow this court to properly prepare its ruling and to schedule a third trial date. Preparing rulings on an 11(b) application is an inherent time requirement (see R. v. M.(N.N.), 2006 CanLII 14957 (ON CA), [2006] O.J. No. 1802 (QL) (O.C.A.)) and was the time needed by this court to properly review the cases presented in the application and to prepare this ruling, and therefore, this period of 2 months and 1 day is not attributable to the prosecution nor the defence and will be a neutral period and deducted from the overall delay. After this neutral period is deducted from the overall length of delay, the inexcusable or institutional delay that remains is 6 months and 24 days.

(f) Prejudice To The Defendant's Fair Trial, Security, Or Liberty Interests

70In the present application, there has been no credible evidence adduced that the defendant's fair trial, security, or liberty interests have been prejudiced by the delay in obtaining a trial. Furthermore, the Court of Appeal for Ontario in R. v. Omarzadah, [2004] O.J. No. 2212 (QL), also commented that there would be very little prejudice or stigma present for someone charged with a speeding ticket issued under a Part I Certificate of Offence for the purposes of the 11(b) inquiry.

71In addition, the defendant had not been in attendance in court on May 23, 2012, nor in court on September 26, 2012, when the 11(b) application was actually argued by the defendant's legal representative.

(g) The Institutional or Systemic Delay

72The period of the inexcusable or institutional delay in the present case is 6 months and 24 days. This period of 6 months and 24 days is not unreasonable or exceptional delay, considering this falls well below the administrative guideline of 8 to 10 months of tolerable institutional delay, and as there is no evidence of prejudice to the defendant's fair trial, security, or liberty interest, such as the defendant being in custody, then there is no need to assess the delay with a shortened or an adjusted administrative guideline of tolerable delay.

4. DISPOSITION OF THE 11(b) APPLICATION

73Therefore, after balancing the factors and interests protected under s. 11(b), the 6 months and 24 days of institutional or systemic delay is not an excessive or an unreasonable period of delay, since it falls below the administrative guidelines of acceptable or tolerable instuitional delay of 8 to 10 months to obtain a trial in the Provincial Courts, especially when there is no evidence adduced or presented in this application of prejudice to the defendant's fair trial, security, or liberty interests protected by s. 11(b) of the Charter.

74Accordingly, the defendant's right to a trial within a reasonable time guaranteed under s. 11(b) had not been infringed and his application for a remedy under s. 24(1) is dismissed.

Dated at the City of Mississauga on November 27, 2012.

QUON J.P.

Ontario Court of Justice