ONTARIO COURT OF JUSTICE
DATE: 2025-06-12
COURT FILE No.: Toronto 4862 22 27810096, 4862 22 25620477
IN THE MATTER OF an appeal under s. 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended;
BETWEEN:
His Majesty the King Ex Rel. The City of Toronto
Appellants
— AND —
Lisa Lee-Tucker, Henry Shein Canada
Respondents
Before Justice David Rose
Heard on May 13, 2025
Reasons for Judgment released on June 12, 2025
Ms. V. Pankou — counsel for the prosecution
No appearance by or on behalf of either Respondent, even though notified of time and place.
ROSE J.:
[1] The Prosecution appeals the stays of proceedings against Henry Shein Canada and Lisa Lee-Tucker. They have a commonality, which is why the appeals were heard together. Both were charged with offences under Part 1 of the Provincial Offences Act, R.S.O. c. P.33, as amended. Both appeared at an Early Resolution Meeting after requesting one. In each case His Worship stayed the proceedings because of both a violation of the Respondent’s rights under s. 11(b) of the Charter and also because of a common law abuse of process.
[2] The City of Toronto (Toronto) appeals both decisions. In each case the Respondent was served with the Appeal materials but did not appear. For the following reasons both appeals are allowed and the stays vacated.
[3] The Respondent Henry Shein Canada was served with a Certificate of Offence documenting a red light camera system infraction. The offence was indicated as August 23, 2022 at Bloor St and Ossington Avenue at 1:33 pm. In the case of Ms. Lee-Tucker her car was photographed in the intersection of Sheppard Avenue and Leslie Street on a red light on September 11, 2022. Both Respondents requested an early resolution meeting. Henry Shein Canada was given July 10, 2024, Room W6 at the Courthouse at 2700 Eglinton Avenue West on the 10:45 am docket. Ms. Tucker was given July 17, 2024 on the 3:15 pm docket in the same courtroom. The same Justice presided in early resolution court both days.
[4] It appears from my review of the transcript that the Court had a very busy docket each day. The Certificate of Offence against Henry Shein Canada was dated September 6, 2022, so by the time the case came up for early resolution on July 10, 2024 it was over 22 months old. At that appearance, fairly early on, His Worship said to the prosecutor:
The Court: …So, I do not find that it’s appropriate that these cases proceed. So that’s the angle I’m working at. I’m going to give you some time. We’ll take a short recess. I’m not sure if you wish to refer this to your manager to come in and speak to this.
Mr. Morra: Thank you Your Worship. Yes, I will reach out. I can indicate for the record and for yourself, Your Worship, in this situation as I indicated earlier that court scheduling or trial scheduling is in charge of scheduling with these matters without having any application before the court.
The Court: I respectfully disagree with that, notwithstanding that the scheduling is handled by court’s administration. Again, the Crown’s office, the prosecution’s office is an entity that is affiliated with, it works holistically in concert with one another as you would appreciate. I see here that these defendants have satisfied their obligations to obviously put the matter before the court. This is an early resolution setting, but we’re well beyond the Jordan ceiling. There’s also the O’Connor decision that stands for the proposition and speaking for disclosure issues specifically on that point from the Supreme Court of Canada, it does also stand for the proposition that one might not need to necessarily wait for a charter filing in order to address a circumstance where there’s an abusive process that is manifestly available to be discerned as it is in this case. This is not fair play.
[5] Later on issue of notice came up:
Mr. Henderson: …We respect there are remedies available to those who, who are their rights and freedoms on. I’m unaware if there’s been anything filed with respect to that.
The Court: So, there’s been nothing filed.
Mr. Henderson: Okay.
The Court: …It is not a requirement or an obligation, especially for a self-represented defendant, that they would have to go through the exercise of having a charter motion prepared, filed and the case put back, again further delay, setting out the timeline even beyond 18 months while in excess of to begin with.
[6] The Court then stayed several cases on its own motion because they exceeded the 18 month time period outlined by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27. When the Respondent’s case came up Dave Dabideen appeared in Court by telephone for Henry Shein Canada. He identified himself as the driver of the vehicle. At that point His Worship said:
The Court: Thank you. Okay resolution discussion was embarked on by the prosecution. Thank you. And, again, so with regard to Henry Shein Canada Inc at line 9 offence date in question August 23, 2022. This is a red light camera charge, first time before the court well exceeding the Jordan ceiling. Under common law authority, judicial stay of proceedings entered. That’s everything. You may disconnect. There’s no conviction, no finding of guilt. No fine. Drive careful.
[7] In the case of Ms. Tucker, the Certificate of Offence was also some 22 months old by the time the case appeared for an early resolution. The day’s court proceedings were similar to July 10 as regards the apparent delay:
The Court: The charges that the Court is being asked to proceed on, by way of acceptance of resolution involve offence dates that offend the Jordan threshold of – within the provincial court, these cases are to be completed within 18 months. Cases are being scheduled for court and they are put before the Court from the very first instance – they are not stemming from any reopening applications. As I said last Wednesday, I’m not making any finding that there’s malice on the part of the prosecution in any way.
[8] His Worship was clear that he intended to stay all cases which exceeded the Jordan 18 month ceiling:
The Court: …I cannot in good conscience accommodate an application, resolution or to be rescheduled in a trial court to add further delay on top of an unlawful delay. I will enter a judicial stay of proceedings pursuant to O’Connor, 1995 decision and also the Jordan decision. As of the 18 months presumptive threshold being exceeded, that is for an abuse of process. That pertains to the following matters…
[9] When Ms. Tucker’s case was called her husband appeared by telephone. The appearance was brief:
Mr. Tucker: Hello, Your Worship, Chad Tucker, T-U-C-K-E-R. Relation to Lisa Lee-Tucker, I’m her spouse
The Court: Very good. This is for an offence date, I see here September 11, 2022…
Mr. Tucker: Correct.
The Court: …and it’s also for a red light camera offence. First time before the Court. Judicial stay of proceeding applicable. Case collapses. You may disconnect.
Mr. Tucker: Thank you Your Worship.
[10] In both cases His Worship was clear at the outset of the day that any case that exceeded 18 months of delay would be stayed on the Court’s own motion and without one being requested. In both cases His Worship stayed the charges. The certificate of offence for Ms. Tucker is endorsed:
“Judicial Stay of Proceedings Common Law Authority Abuse of Process + 18 months S.C.C. R. v. Jordan 2016 27 R. v. O’Connor ‘95”.
[11] It has identical language to the endorsement from R. v. Henry Shein Canada, where His Worship endorsed:
“Judicial Stay of Proceedings, Common Law Authority Abuse of Process + 18 months SCC R. v. Jordan 2016 R. v. O’Connor ‘95”.
[12] It is therefore beyond dispute that His Worship stayed the charges in both cases because the proceedings exceeded the 18 month limit imposed by the Court in R. v. Jordan, 2016 SCC 27. There is nothing which explains the reason for the delay. It simply took too long to set Early Resolution Meetings. His Worship was entirely right that the Jordan guidelines were exceeded on their face.
Discussion
[13] The Justice was entirely correct that cases proceeding in the Ontario Court of Justice have a presumptive 18 month limit in which to conclude the case. R. v. Jordan (supra) stands for that proposition. The 18 month time limit is forum applicable, not offence specific. The 18 month limit applies to all charges, criminal and regulatory when proceeding in the Ontario Court, see R. v. Nguyen, 2020 ONCA 609. In other words, the 18 month presumptive time limit applies to traffic ticket and indictable offences alike proceeding to trial in the Ontario Court of Justice.
[14] This case falls to be decided on application of the statutory procedural rule which is engaged when a Court embarks on an application to stay charges. This is found in the Courts of Justice Act, 1990 R.S.O. c. C.43:
Notice of constitutional question
109 (1) Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:
The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.
A remedy is claimed under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.
Failure to give notice
(2) If a party fails to give notice in accordance with this section, the Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable, or the remedy shall not be granted, as the case may be.
Form of notice
(2.1) The notice shall be in the form provided for by the rules of court or, in the case of a proceeding before a board or tribunal, in a substantially similar form.
Time of notice
(2.2) The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise. 1994, c. 12, s. 42 (1).
[15] What is clear from s. 109 (2) of the Courts of Justice Act is that notice is essential before a Justice can hear an application to stay charges. Because s. 11(b) has only one remedy, namely a stay under s. 24(1) of the Charter, when an Applicant seeks a stay of proceedings because of a delay and concomitant violation under s. 11(b) of the Charter there must be notice.
[16] S. 109 (2) is the statutory and logical extension of the procedural rule that a litigant claiming a breach of a Charter right bears the burden of proof on a balance of probabilities standard. If the Applicant does not succeed on that, then there is no Charter violation, see R. v. Collins, [1987] 1 S.C.R. 265, p. 277 per Lamer J.
[17] Beyond the statutory requirement to give notice before an accused may seek a stay of proceedings it is incumbent on the trial justice to remain impartial as between the prosecution and defence. Provincial offences, such as traffic tickets, commonly appear in court without the benefit of representation for the accused. Despite this, the Justice must remain impartial and not become an advocate for the unrepresented accused. This was made clear in R. v. Taubler (1987) 20 O.A.C. 64 where the Court said:
- While it is undoubtedly true that a trial judge has a duty to see that an unrepresented accused person is not denied a fair trial because he is not familiar with court procedure, the duty must necessarily be circumscribed by what is reasonable. Clearly it cannot and does not extend to his providing to the accused at each stage of his trial the kind of advice that counsel could be expected to provide if the accused were represented by counsel. If it did, the trial judge would quickly find himself in the impossible position of being both advocate and impartial arbiter at one and the same time.
[18] With that said, when the trial proceeds with the accused unrepresented the judge has an extra burden to ensure that the trial proceeds fairly. The judge can assist the unrepresented to provide information about procedure and may even ask questions to ensure that the case is fairly presented. It is worthwhile recalling the guidance by Cote J. speaking for the whole Court in R. v. J.D., 2022 SCC 15:
- Before concluding, I emphasize that the accused in the case at bar was represented by counsel. This Court is therefore not required to determine whether the trial judge's duty to a self-represented accused would be different. Allow me nonetheless to digress by making a few comments, although without ruling definitively on this issue. In the case of a self-represented accused, the court has a duty to ensure that the accused can have a fair trial that is respectful of his or her fundamental rights. The judge is at that time [TRANSLATION] "charged with a particular responsibility" to ensure that the trial is fair (R. v. Leblanc, 2010 QCCA 1891, 78 C.R. (6th) 359, at para. 47). The judge has, in this sense, a duty to assist the accused (Guenette v. R., at para. 20; R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para. 110). This duty to assist is [TRANSLATION] "variable", however, as it differs according to the circumstances and is limited to what is reasonable (M.R. v. R., 2018 QCCA 1983, 53 C.R. (7th) 182, at para. 25, citing Jarrah v. R., 2017 QCCA 1869, and R. v. Breton, 2018 ONCA 753, 366 C.C.C. (3d) 281, at para. 13; see also Richards, at paras. 110-11). Although the court is not required to give advice to the accused, it must be reasonably certain that the accused is aware of his or her procedural rights. It could be necessary in such circumstances to inquire further into the consent of the accused.
[19] Two problems emerge in the cases before me. The first is that the Justice took it upon himself to initiate the application to stay the charges. Neither Respondent said anything about it. The s. 11(b) motion was therefore the Court’s Motion, not the Accused’s. The second is tied to the first, namely that there was no advance notice to the Appellant, beyond the discussion which transpired as Court was opening. The ability of Toronto to respond to the Court’s motion to stay the charges was limited to the day the case was heard. Failure to require any notice at all before staying the charges was reversible error.
[20] It was reversible error for the Court to initiate a stay of proceedings on its own motion. A trial judge must be careful and reluctant to bring their own motions because of a perceived unfairness to one or the other party. In my finding the standard on which a trial judge brings their own motion to stay is similar to the test to apply when a trial judge calls their own evidence, namely:
The discretion should only be exercised rarely and then with extreme care, so as not to interfere with the adversarial nature of the trial procedure or prejudice the accused.
See R. v. Finta, [1994] S.C.J. No. 26 at para. 192.
[21] Trial judges must remain impartial and neutral to each side for risk of entering the fray. I do not find that a judge can never bring their own motion to stay the proceedings, but such circumstances will be exceedingly rare.
[22] I recognize that the Justice of the Peace properly raised the issue of delay with the prosecution. In the wake of Jordan, the Justice of the Peace’s concern was entirely proper. The prosecution’s response to the Court’s concern was insufficient to the presiding justice. At one point on July 10, 2024, His Worship said this:
The Court: All right. I’m going to ask a tough question here Mr. Morra. The charges here are going to back to almost 2 years old. I appreciate this is an early resolution. I feel that I have a duty and obligation in prosecution. I’m going to ask the question, why are they not on a withdraw docket?
Mr. Morra: Your Worship, scheduling is up to the court administration, not up to the prosecution’s office. These are the dockets that we’ve received, my colleague has reviewed the information and taken was agreed upon with the defendant.
[23] His Worship was entirely right that the delay in the cases before him engaged s. 11(b) concerns on their face. As the Court in Jordan stipulated, all justice system participants must actively work to move cases to a conclusion promptly. By raising this concern the Justice was doing just that. It is therefore troubling that the prosecutor took the position that the 2 year delay from laying the charge to first appearance was the Court’s responsibility, not the prosecution’s. This is at odds with jurisprudence going back to R. v. Askov that the Crown bears responsibility for institutional resource limitations in the context of s. 11(b). Put bluntly, the prosecution bears the burden of institutional delay. It is insufficient in the circumstances of these 2 cases for the prosecution to disavow responsibility for the delay.
[24] What happened here is that the Justice went a step too far. It is of no assistance to the analysis that the Justice offered a second limb for the stay, namely the common law authority from R. v. O’Connor, [1995] 4 S.C.R. 411. While the Court has a residual discretion to stay charges under common law, it is extremely limited. In O’Connor (supra) at para. 70 L’Heureux-Dube J. put it this way:
…I conclude that the only instances in which there may be a need to maintain any type of distinction between the two regimes will be those instances in which the Charter, for some reason, does not apply yet where the circumstances nevertheless point to an abuse of the court's process. Because the question is not before us, however, I leave for another day any discussion of when such situations, if they indeed exist, may arise. As a general rule, however, there is no utility in maintaining two distinct approaches to abusive conduct. The distinction is one that only lawyers could possibly find significant. More importantly, maintaining this somewhat artificial dichotomy may, over time, create considerably more confusion than it resolves.
[25] In the appeals before me both cases clearly engaged the Respondents’ s. 11(b) rights to a trial in a reasonable time. That was apparent to the Court and prosecution from the beginning. Any remedy because of delay could be dealt with completely by application of s. 11(b). There was therefore no residual common law discretion to stay the proceedings.
[26] It may be that when this situation arises in the future, i.e., an unrepresented accused is charged under the Provincial Offences Act where the presumptive Jordan guideline has been clearly and obviously breached, that the prosecution may well be called on to assist the accused in raising an 11(b) Application. That would have been a suitable procedure in the cases on appeal. I would leave it to the trial justice to run their Courts as they see fit each day.
[27] In the result, the stays in each case are set aside and a new trial ordered.
Released: June 12, 2025
Signed: Justice Rose
Footnotes
[1] R. v. Nguyen, 2020 ONCA 609
[2] R. v. Askov, 79 C.R. (3d) 273