Court File and Parties

Ontario Court of Justice

Date: 2020-01-23

Court File No.: Newmarket 4961 9805598Z, 4961 9798088Z, 4961 9814333Z, 4961 9817270Z, 4961 9831338Z, 4961 8268484B, 4961 9826078Z, 4961 9833525Z

In the Matter of: An appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen ex rel. York Regional Municipality Respondent

— AND —

Cui-Huan Guan, Zhaoping Guan, Hong Fei Qiu, Ling Wang, Weijie Zhang, Keith Chan, Ching-Lam Ng, Tamir Salomon Appellants

Before: Justice David S. Rose

Heard: January 10, 2020

Reasons for Judgment Released: January 23, 2020

Counsel:

• Ms. C. Galin – counsel for the Respondent
• Mr. T. Hicks – counsel for the Appellants Cui-Huan Guan, Zhaoping Guan, Hong Fei Qiu, Ling Wang
• Mr. M. Pasquale – counsel for the Appellants Ching Lam Ng, Weijie Zhang & Tamir Salomon

Reasons for Judgment

Rose J.:

Background

1In separate trials on various Highway Traffic Act offences each Appellant brought a Motion for a stay of proceedings under s. 11(b) of the Charter of Rights and Freedoms. Each case was prosecuted under Part I of the Provincial Offences Act (POA). Each motion was dismissed, and each Appellant was convicted. All Appellants have a common issue, namely whether the presumptive ceiling of 18 months from the Supreme Court of Canada's ruling in R. v. Jordan 2016 SCC 27 applies to proceedings under the POA. The Appellant Tamir Salomon raises two separate additional issues regarding his conviction.

Time Periods

2The time periods range from 12 months, 3 days in the case of R. v. Hong Qiu to 13 months 26 days in the case of R. v. Zhaoping Guan. Each Appellant and the Respondent agree about the time periods raised. They were helpfully summarized for the Court in Appendix A below.

3None of the Appellants take the position that they took meaningful and sustained steps in coming to trial on a case for which the reasonable time requirements were markedly exceeded but which nonetheless fell below the presumptive ceiling, as the Supreme Court outlined in R. v. Jordan (supra) at paras. 82 – 91.

4It was the position of the Appellants Zhaoping Guan, Cui-Huan Guan, Keith Chan and Tamir Salomon, that the presumptive ceiling for Highway Traffic Act offences is 13 months. In this submission they rely on the decision of my brother McInnes J. in R. v. Tomovski 2017 ONCJ 785 (Leave to Appeal dismissed 2018 ONCA 57).

5The Appellants Ching-Lan Ng, Qiu Hong, Ling Wang, and Weijie Zhang ask that I adopt the reasoning of my sister Greene J. in R. v. El-Nasrallah 2018 ONCJ 161 which, in their submission, suggests a presumptive ceiling for Highway Traffic Act cases of 12 months.

6The Respondent York Region argues that Jordan presumptive ceiling of 18 months applies to all Highway Traffic Act prosecutions, and relies on the decisions R. v. Debono [2019] O.J. No. 2099, R. v. Lok [2019] O.J. No. 2688, and Ontario (Superintendent of Financial Services) v. Dies 2018 ONCJ 641.

7The dispute is therefore one of which line of cases applies.

The Conflict in the Cases

8In R. v. Tomovski (supra) McInnes J. gave a range of 13 – 15 months for the presumptive ceiling for POA Part I prosecutions. He applied 14 months to the case, and allowed the appeal because the delay in the case of 10 months and 22 days. He ordered a new trial. Notably, McInnes J. set a 3 month range for the presumptive ceiling. It was his finding that where in that 3 month window the presumptive ceiling should be fixed on a case by case basis.

9In El-Nasralla (supra) Greene J. would only say that "It is difficult to imagine an upper threshold for Part I offences that is less than 12 months given the reality of busy courts". She dismissed the appeal because the delay in that case was well under 12 months. I do not read Her Honour's ruling as setting a fixed 11(b) threshold of 12 months for Part I POA prosecutions.

10In R. v. Debono (supra) Misener J outlined a number of reasons why the 18 month presumptive 11(b) ceiling for trials in the Ontario Court applied to Provincial Offences Act cases in the same manner as Criminal Code prosecutions: stare decisis; allocation of resources; lack of prejudice in Part 1 POA prosecutions; the bird's-eye approach outlined in Jordan; and lastly, the remaining possibility of accused still showing that their time took markedly longer than it should have. I find myself in agreement with her reasoning.

Subsequent Development in Case Law

11I would only add to Misener J.'s ruling the following. In R. v. K.J.M. 2019 SCC 55 the Court was asked to set a presumptive ceiling for s. 11(b) purposes lower than 18 months when the accused is prosecuted under the Youth Criminal Justice Act (YCJA). They would not. Their reasons were fourfold. The first was that there was no demonstrated problem with delay in time to trial in YCJA prosecutions. The Court had no evidence that youths were not being tried in reasonable time. The second was that the Jordan ceiling was imposed "irrespective of degrees of prejudice experienced by different groups and individuals" (at par. 65).

12The Court's finding in K.J.M. that prejudice was not a material concern in setting presumptive guidelines was not a finding which was available to McInnes J. in Tomovski. Prejudice was one of the reasons why he set a lower presumptive ceiling (see Tomovski at paras. 110 – 111), but the Supreme Court in K.J.M. found that "… Jordan established a uniform set of ceilings that apply irrespective of the varying degrees of prejudice experienced by different groups and individuals" (at par. 65).

13The third reason for maintaining the 18 month presumptive ceiling for YCJA prosecutions for the Court in K.J.M. was that the Jordan ceilings are forum-based, as opposed to statute-based. As Moldaver J. said (at par. 66):

Nor, in my view, can a separate ceiling for youth matters be justified on the basis that Parliament has established a separate youth criminal justice system under the YCJA. Constitutional standards exist independent of Parliament's statutory design. Therefore, the mere fact that Parliament decided to create and maintain a separate youth criminal justice system does not by itself provide a sound rationale for establishing a separate ceiling for youth matters. Otherwise, Parliament would have the ability to alter constitutional standards through ordinary statutory amendment, such as by merging the adult and youth justice systems. Such a result would be incompatible with the concept of a constitutional standard.

14To be fair to the Appellants' argument, Jordan and K.J.M. apply to cases falling under Parliament's jurisdiction, whereas the Ontario legislature governs the POA. That distinction is immaterial in my finding. There is one presumptive ceiling for cases prosecuted in the Provincial Court, and another for those proceeding in the Superior Court. Those ceilings apply regardless of the procedural legislation be it the YCJA, or in this case the POA. The Court in K.J.M rejected a patchwork approach to presumptive ceilings when considering s. 11(b) of the Charter.

15The last reason for re-iterating an 18 month presumptive ceiling in YCJA prosecutions in the provincial court was the practical concern of introducing another transitional scheme, see K.J.M. at par. 67.

16I also find that the several appeals heard together present no case for a finding that there is a delay problem with HTA prosecutions. Indeed, the opposite is true. All of the cases heard together fall within a narrow band of 12 months to just less than 14 months. As a set, these cases do not present an argument for a problem of broad based institutional delay.

17For these reasons, I find that the 18 month ceiling from R. v. Jordan applies to each of these appeals. There is no dispute that each case took much less time than that to come to trial. The dismissals of the s. 11(b) Motions are therefore upheld.

Tamir Salomon's Additional Issues

18The Appellant Tamir Salomon was convicted of failing to wear a seatbelt on February 14, 2018 under s. 106(2) of the Highway Traffic Act. He raises two additional issues. The first is that the time of the offence was not proven because the investigating officer gave no evidence about the year of his observation. The second is that there was insufficient evidence to found a conviction because the officer did not actually see the Appellant not wearing his seat belt. Both of these arguments fall under the rubric of errors of fact.

19That standard for appellate review of findings of fact is one of deference. Findings of fact by a trial court may not be overturned absent a palpable and overriding error, see Housen v. Nikolaisen 2002 SCC 33 at par. 10.

20The investigating officer, PC Webb, testified that, "On February 14th, I was westbound on Highway 7 West in the City of Vaughan". He said nothing after that about the year. The Appellant argues that there was, therefore, no evidence about the year being 2018, as charged. I would reject this argument. PC Webb testified that he made notes "immediately after the offence". The process of notetaking for the offence involved locking the notes electronically so that they could not be altered. He was asked by defence counsel:

Q. And is there a time stamped when the lock code would be generated?

A. It will be at the time that it would be submitted. So the lock – so the text date of this notes is February 14, 2018 at 1524 hours.

21There was, therefore, some evidence that PC Webb took standard police notes right after the offence occurred, and locked them after that, on February 14, 2018 at 1524 hours. This was sufficient for His Worship to find, as he did, that the offence happened on February 14, 2018. Importantly, there was no conflict in the evidence on the issue which required the Court to resolve a factual discrepancy. The first ground of appeal is therefore dismissed.

22The second argument is that officer Webb never actually saw Mr. Salomon without his seat belt. In his direct examination he was asked if he was sure that the seatbelt wasn't being worn and said that he could see no silhouette of a seatbelt being worn by Mr. Salomon when he followed the car, and that after he pulled up next to him he could still see nothing from the shoulder to the pillar of the car.

23PC Webb was cross-examined on the point. He said that when he pulled up next to Mr. Salomon's car he said to him "You're not wearing a seat belt" to which Mr. Salomon replied "no". He was cross-examined on the issue of Mr. Salomon's silhouette and maintained that "I literally could not see a belt running from the shoulder to the B-pillar".

24No evidence was called to contradict PC Webb. In his reasons for judgement, the trial Justice found "…I don't buy the argument of Mr. Pasquale that there was only limited observation. I believe that Officer Webb made his observations following the vehicle at a distance of approximately five kilometers, he observed the – well he observed no silhouette from the B-pillar over the shoulder".

25The offence of failing to wear a seatbelt requires the driver to wear a seat belt continuously from the time he or she puts the vehicle in motion on the highway until the time the driver leaves the highway, parks the vehicle in a position which it can be left unattended, or gets out of the vehicle, see R. v. Tassone 2007 ONCA 215. Failing to wear a seat belt at any time in that continuum is an offence.

26There was ample evidence that Mr. Salomon wasn't wearing his seatbelt, and none that he was. His Worship considered the argument that the evidence wasn't strong enough to found a conviction and rejected it. His decision is entitled to deference. This limb of the appeal is rejected.

27For the foregoing reasons the Appeals are rejected.

Released: January 23, 2020

Signed: Justice David S. Rose

Appendix A – Time Period Summary

R. v. Guan, Zhaoping (4961-9798088Z)

Conviction entered by J.P. R. Levita

Event	Date	Calculation
Offence Date	October 16, 2017	—
Notice of Trial mailed to defendant	July 24, 2017	+2 months 22 days
11(b) motion filed	August 24, 2018	27 days notice to prosecution
First Trial date	September 20, 2018	+11 months 4 days
Total delay		13 months 26 days

R. v. Guan, Cui-Huan (4961-9805598Z)

Conviction entered by J.P. R. Levita

Event	Date	Calculation
Offence date	November 14, 2017	—
Notice of Trial mailed to defendant	September 1, 2017	+2 months 13 days
11(b) motion filed	Sept 27, 2018	25 days notice to prosecution
First Trial date	October 22, 2018	+11 months 8 days
Judgement	October 26, 2018	+4 days
Total delay		13 months 25 days

R. v. Chan, Keith (4961-8268484B)

Conviction entered by J.P. L. Rotondi

Event	Date	Calculation
Offence date	October 4, 2017	—
Notice of Trial mailed to defendant	July 16, 2017	+2 months 18 days
11(b) motion filed	August 7, 2018	14 days notice to prosecution
First Trial date	August 21, 2018	+10 months 17 days
Total delay		13 months 5 days

R. v. Ng, Ching-Lam (4961-9826078Z)

Conviction entered by J.P. L. Bourgon

Event	Date	Calculation
Offence date	March 09, 2018	—
Notice of Trial mailed to defendant	January 10, 2018	+1 month 29 days
11(b) motion filed	January 2, 2019	19 days notice to prosecution
First Trial date	January 21, 2019	+10 months 12 days
Total delay		12 months 11 days

R. v. Qiu, Hong (4961-9814333Z)

Conviction entered by J.P. J. Shousterman

Event	Date	Calculation
Offence date	December 07, 2017	—
Notice of Trial mailed to defendant	October 19, 2017	+1 month 18 days
11(b) motion filed	October 1, 2018	21 days notice to prosecution
First Trial date	October 22, 2018	+10 months 15 days
Total delay		12 months 3 days

R. v. Salomon, Tamir (4961-9833525Z)

Conviction entered by J.P. J.T. Macdonald

Event	Date	Calculation
Offence date	April 18, 2018	—
Notice of Trial mailed to defendant	February 14, 2018	+2 months 4 days
First trial date adj due to "conflict"	August 24, 2018	+4 months 6 days
11(b) motion filed	March 15, 2019	14 days notice to prosecution
2nd trial date	March 29, 2019	+7 months 5 days
Total delay		13 months 15 days

R. v. Wang, Ling (4961-9817270Z)

Conviction entered by J.P. G. Ryan

Event	Date	Calculation
Offence date	January 17, 2018	—
Notice of Trial mailed to defendant	November 11, 2017	+2 months 6 days
11(b) motion filed	October 31, 2018	15 days notice to prosecution
First Trial date	November 15, 2018	+9 months 28 days
Total delay		12 months 4 days

R. v. Zhang, Weijie (4961-9831338Z)

Conviction entered by J.P. J.T. Macdonald

Event	Date	Calculation
Offence date	April 17, 2018	—
Notice of Trial mailed to defendant	February 02, 2018	+2 months 15 days
11(b) motion filed	January 28, 2019	14 days notice to prosecution
First Trial date	February 11, 2019	+9 months 24 days
Total delay		12 months 9 days