R. v. Arsenault, 2021 ONCJ 714
Provincial Offences Certificate No. 1660-999-2418806Z-00
ONTARIO COURT OF JUSTICE
Provincial Offences Court
Her Majesty the Queen
v.
Michael Arsenault
P R O C E E D I N G S A T T R I A L
Reasons for Judgment, s. 11(b)
BEFORE HIS WORSHIP JUSTICE OF THE PEACE L. PHILLIPPS
On November 1, 2021 at BLENHEIM ONTARIO
CHARGE: S. 128 H.T.A. – Speeding
APPEARANCES
B. Mercer Municipal Prosecutor
R. Tantagelo Defendant, M. Arsenault
MONDAY, NOVEMBER 1, 2021
R U L I N G on C H A R T E R M O T I O N
PHILLIPPS, L., J.P. (Orally)
Introduction
On August 29th, 2019, the defendant, Michael Arsenault was charged with speeding 149 kilometres an hour in a posted 100 kilometre an hour zone, on Highway 401 in the Municipality of Chatham-Kent.
He has brought a motion pursuant to Section 11b of the Canadian Charter of Rights and Freedoms which provides that “any person charged with an offence has the right to be tried within a reasonable time.”
The defendant seeks a stay of proceedings pursuant to Section 24 subsection (1) of the Charter.
In R. v. Jordan, the Supreme Court set out the presumptive ceilings. For matters in the Superior Court of Justice, the presumptive ceiling is 30 months, and for matters in the Ontario Court of Justice, the ceiling is 18 months. This limit also applies to Provincial Offence charges.
In R. v. Nguyen, September 30th, 2020 ONCA 609, 2020, O.N.C.A. 609, the Ontario Court of Appeal stated that the language in R. v. K.J.M. is categorical. The ceilings established in R. v. Jordan apply uniformly. Accordingly, while the Provincial Offences Act is intended to provide a speedy and efficient process for dealing with regulatory offences, the 18-month presumptive ceiling for single stage Provincial Court proceedings established in Jordan applies to proceedings under Part I. This is undisputed.
If a trial exceeds the presumptive ceiling, the delay may be considered “unreasonable” for the purposes of section 11b of the Charter, and the Court may award a Charter remedy by staying the proceedings.
In March 2020, the Province of Ontario declared a state of emergency due to the COVID-19 pandemic. As a result, some courts in Ontario closed. In response to COVID-19, the Chief Justice of the Ontario Court of Justice issued notices and directives to the public and implemented a phased plan for the reopening of courts.
Issues
The issues to be explored in these reasons are as follows:
i. How much delay can be attributed to the exceptional circumstance caused by the COVID-19 pandemic? Is it in that delay over 18 months, and presumptively unreasonable?
ii. If the net delay is below 18 months and is presumptively reasonable, has Mr. Arsenault met his onus to establish that the defence took meaningful steps that demonstrated sustained effort to expedite the proceedings, and that the case took markedly longer than it reasonably should have?
iii. If so, has Mr. Arsenault met his onus to establish his case is a clear case of a Charter violation warranting a stay of proceedings under Section 24 subsection (1)?
The Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704, 2016 O.N.C.A., 704, summarized the steps to be taken in applying the Jordan framework.
Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial;
Subtract the defence delay from the total delay, which results in the “net delay”;
Compare the net delay to the presumptive ceiling;
If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If the Crown cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discreet events and particularly complex cases.
Given that this is a Provincial Offences Part I proceeding, I find that the circumstances are not particularly complex.
Subtract delay caused by the discreet events from the net delay, leaving the “remaining delay” for the purposes of determining whether the presumptive ceiling has been reached;
If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
Calculating the Time
Calculating the Time
The total delay from the date of the offence to the end date, (which is the trial), which had been set for August 17th, 2021, is 719 days.
In this case, the parties agree, and it is undisputed, that the pandemic and the resulting court closure is a discreet event.
Counsel for the defendant, premises his delay calculation on a document at Tab 7 of his Factum. The document refers to selecting reopening of some criminal court locations which occurred on July 6th, 2020.
I reject the argument that if some criminal courts were opening, then so too should the Provincial Offences Courts.
The reopening of the Provincial Offences court decision rested with the Chief Justice of the Ontario Court of Justice. Though the Regional Senior Justice of the Peace, the Chatham-Kent Provincial Offences Court was permitted to reopen for trials by video conference as per an approval issued on April 6th, 2021. I find this date the date to be used as the end date for the discreet event. That reopening date did not however end the stress put on the Justice systems resources.
Quoting from Toronto City v. Soudine, 2021 ONCJ 497, 2021, O.N.C.J., 497, which in turn quotes R. v. Simmons, a decision of Justice Nakatsuru provides the following with regards to COVID-19 as a discreet exceptional event, and quoting Justice Nakatsuru:
“First, while the jurisprudence about COVID-19 as a discreet exceptional event within the meaning of Section 11b is relatively new, most trial courts have deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial, as opposed to only the time period where trials have been actually suspended.
Second, the impact of the Covic-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases. COVID-19 has had a system-wide impact of unprecedented proportions never seen before in our lifetime.
Third, the discreet exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes place in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and in assessing what the crown and the court can reasonably do in mitigating the delay”
The dates between the offence date of August 29th, 2019, and the date that the Notice of Intention to Appear was filed, October 1st, 2019, should be treated as neutral. During this time, the defendant could simply pay the ticket, (Option #1), enter a Plea of Guilty with submission as to penalty, (Option #2), seek legal advice, do nothing, and let the matter proceed to a Fail-to-Respond docket, arrange a meeting with the Prosecutor, or do as he did, and request a trial, (Option #3). There is nothing that the court’s or prosecutor could do to advance the case during this time. It is the filing of the Notice of Intention to Appear that alerts the justice system participants that this case is proceeding to an in-court appearance, and that the out-of-court settlement option has not been chosen. This differs from Provincial Offence matters which compel attendance by summons, and also from the criminal process where once charged, the accused person is required to attend court.
In Part I proceedings, the time between the offence, and the filing of the Notice of Intention to Appear is neutral.
Given the discreet event of the pandemic closure, the time between the court closure on March 16th, 2020, and the approval to begin video-link trials received on April 6th, 2021, is neutral. Those 387 days are deducted from the total delay of 719 days.
I further deduct the neutral time between the offence date of August 29th, 2019, and the filing of the Notice of Intention to Appear of October 1st, 2019, a period of 33 days.
This equates to a reduction in the total delay of 420 days, leaving a delay of 299 days or just under 10 months. Taking into account the discreet event, the delay did not reach the 18 month ceiling.
Disclosure
Disclosure
The necessity to reopen courts for trial matters where persons are facing great jeopardy, in comparison to regulatory matters where person are not facing custodial penalties, but rather speeding fines, demerit points, and even possible administrative suspensions, and possible administrative suspensions are quite different. The potential prejudice must be weighed in the end, there’s very little prejudice in the delay of a speeding trial within the Jordan framework.
I can then turn to the issue of delay in disclosing the radar manual. And there is also some question about the existence of a video, but the main issue was the radar manual.
There is no dispute that the manual was required to be disclosed following the first request made by the defendant’s agent on November 6th, 2019. As the defence agent filed the Notice of Intention to Appear, it is unclear why the disclosure request was filed more than a month later.
I note that the initial disclosure request was in excess of two pages, and was complex and overbroad considering the offence before the court. It included requests for willsay statements of the officer. The nature of the requesting document was confusing, as each request included references to case law supporting the request. That is not necessary. A simply worded request would be more effective. Having said that, there were valid items contained in the request that were required to be disclosed.
On November 19th, 2019, disclosure materials were provided, but it did not include the complete manual, but rather selected excerpts. The excerpts were not those that were specified in the initial request.
There was then a further request made by the Applicant on December 16th, 2019, specifying the sections of the manual sough dealing with, “testing and performance modes”. A response to that was sent on January 8th, 2020.
The issue of disclosure was raised January 9th, 2020, again in a letter from the Applicant’s counsel. It stated “the disclosure recently provided has not fulfilled our request for further disclosure that we have previously requested. Please review our specific requests”. While it would have been preferable to specify what was missing rather than rely upon requests that were not successful earlier, the general meaning is conveyed. It further requests the prosecutor to confirm or deny if there is any video footage.
A few days later on the trial date, January 14th, 2020, the defence agent requested an adjournment. There is no reason given by the defendant, and the prosecutor did not ask for one. There was no objection, and the request was granted. It is concerning that at this juncture, the issue of disclosure was not raised at all. This was an opportunity for the defendant to have the court intervene, or at least address the issue on the record in the presence of the prosecutor. This was a missed opportunity for any outstanding disclosure requests could have been clarified.
I note that there was apparently no effort made to hold a pretrial with the prosecutor throughout the time leading up to July 29th, 2021 when the complete manual was provided.
Following the January 14th, 2020 appearance, a new trial date of February 25, 2020 was set.
On February 25, 2020, an agent for the defendant appeared and requested an adjournment stating
“the agent is, is telling me to adjourn this for additional disclosure, and my friend has indicated that disclosure has been sent, but he hasn’t received it, so we are asking for a brief adjournment on this so we can straighten the disclosure out”.
Two dates were offered, March 10th and 17th. The 17th was selected. This would turn out to be the very start of the court closure. Again, this is a missed opportunity to clarify on the record what materials are missing, and to alleviate any misunderstanding that might exist as to what is being asked for.
I also note, at that appearance, that the prosecutor confirmed on the record that there was no video evidence in existence.
The interceding months are devoid of contact or action until July of 2021.
The onus is on Mr. Arsenault to establish that the delay is unreasonable. To discharge this onus, the defence must show that they took meaningful steps to demonstrate a sustained effort to expedite the proceedings, and that the case took markedly longer than it reasonably should have.
And I reference Jordan at paragraph 82, to satisfy that the defence took meaningful and sustained efforts to expedite the proceedings, Justice Moldaver held at paragraph 86 of Jordan,
“it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier date. The defence must demonstrate it attempted to set the earliest possible hearing dates; was cooperative with and responsive to the Crown, and the court; put the Crown on timely notice when delay was becoming a problem; and conducted all applications including the Section 11b application reasonably and expeditiously.”
The standard to be applied is reasonableness, not perfection.
While the prosecution bears some responsibility in the delay and sending the requested sections of the manual, I am not satisfied that the Applicant has established that defence counsel took meaningful steps that demonstrated sustained effort to expedite the proceedings.
The elements of sustained effort in putting the Crown on timely notice were lacking. The 11b Application was also not perfected by August 17th, 2021 court appearance.
The transcripts provided to the court show that the defendant was content with the adjournment dates provided at the earlier appearances, and did not raise 11b concerns or seek an earlier date at any point.
While the defendant argues that he should have been permitted to attend a trial electronically, there was never a request for this.
The defence has not rebutted the presumption of reasonableness.
I find that there was no marked departure from reasonable time limits.
Conclusion
The Application is therefore, dismissed. I am prepared to embark upon the trial in this matter.