ONTARIO COURT OF JUSTICE
BETWEEN:
Durham (Regional Municipality)
— AND —
Spencer McKinnon
Before Justice of the Peace V. Hazlett Parker
Heard on October 29, 2024 and January 16, 2025
Reasons for Judgment released on January 24, 2025
Michael Pelham........................................................................................................ Prosecutor
Daniel Owen..................................................................................... Agent for the Defendant
Hazlett Parker, V., J.P.:
OVERVIEW
1On March 9, 2023 Mr. McKinnon was driving a pick up truck owned by his employer. He was travelling westbound on Raleigh Avenue in Oshawa, Region of Durham. He came to a stop at the stop sign when he reached Wilson Rd. There was a tractor trailer parked on Wilson Rd. just south of Raleigh Ave. This obstructed Mr. McKinnon’s view of the intersection.
2Mr. McKinnon testified that the truck driver gestured for him to enter or cross the intersection. He testified that he didn’t fully trust the truck driver’s gesture. He said that he couldn’t see, and tried looking under the truck for oncoming traffic. After “inching” partway into the intersection, he accelerated and tried to complete a left turn onto Wilson Road.
3Unfortunately, Deborah Allen was driving her Chevrolet Cruise northbound on Wilson Road near Raleigh Avenue at that time. She testified that she was going “about 30”. Ms. Searle (a witness) testified that Ms. Allen’s car was going about 60kmh. Ms. Allen’s car and Mr. McKinnon’s pick up truck collided. Ms. Allen’s car flipped onto its roof. Mr. McKinnon’s truck spun around and stopped at a snowbank at the edge of the road, facing East.
4Fortunately, no one was seriously hurt, although Ms. Allen was left hanging by her seatbelt. Emergency personnel removed her from the car through the passenger side window.
5Mr. McKinnon was charged with careless driving, contrary to the Highway Traffic Act1. He plead not guilty and the matter proceeded to trial. Midway through the trial, Mr. McKinnon brought an Application for relief because he said that his right to be tried within a reasonable time, guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms2 (Charter), had been breached.
6This Application was dismissed, with brief oral reasons given. Full reasons for that decision are below. My reasons for convicting Mr. McKinnon of careless driving are also below.
MR. MCKINNON’S RIGHT TO BE TRIED IN A REASONABLE TIME WAS NOT BREACHED
A. The Legal Principles
7The Charter states that anyone charged with an offence has the right to be tried within a reasonable time.3 Mr. McKinnon claims that this right was violated and as a result his charge should be stayed.
8When considering whether an accused person’s right to be tried within a reasonable time has been breached, I am bound by the Supreme Court of Canada’s decision in Jordan4. This decision states that matters that have not been tried within 18 months of the charge being laid (the presumptive ceiling) have presumptively breached this constitutional right.
9The decision sets out how time is to be calculated to decide if the delay in getting a matter to trial is presumptively unreasonable. It is a two-step process. First, the total delay from the date the charge is laid until the expected end of trial is established. Then, defence delay is deducted from the total delay to derive the net delay. If the net delay is greater than 18 months, the delay is presumed to be unreasonable.
10Considering defence delay is an important part of this process as all participants in a case must take steps to ensure the matter is concluded in a timely way. A Defendant cannot delay the conclusion of their matter and then benefit by doing so.
11Even if the time falls below the presumptive ceiling, an Accused must show that s/he took meaningful steps that demonstrate a sustained effort to expedite the proceeding, and that the case took markedly longer than it should have to succeed on a claim that this Charter right was breached.5
B. Application of the Principles to This Case
12The timeline of this proceeding is important. It is:
(1) March 9, 2023 Mr. McKinnon was charged with Careless Driving;
(2) March 13, 2023 Mr. McKinnon requested and Early Resolution Meeting with the prosecution;
(3) March 13, 2023 the prosecution responded to this request, stating that a notice of early resolution will be sent to him within 60 days.
(4) October 30, 2023 the notice of Early Resolution Meeting was sent to Mr. McKinnon;
(5) November 7, 2023 and November 16, 2023 Mr. McKinnon requested disclosure from the prosecution;
(6) December 4, 2023 the Early Resolution Meeting occurred;
(7) May 14, 2024 the trial began, but was struck;
(8) October 29, 2024 and January 16, 2025 the trial proceeded.
13The total delay from March 9, 2023 to January 16, 2025 is 22 months and 8 days. This is clearly longer than 18 months, the presumptive ceiling.
14However, defence delay must also be considered. Mr. McKinnon argues that there should be no deduction from the total delay for defence delay.
15In contrast, the Prosecution argues that Mr. McKinnon’s failure to take any steps to advance his case from March 13th when he requested an Early Resolution meeting until October 30, 2023 when the notice of Early Resolution meeting was sent (7 months and 22 days later) should be considered defence delay and deducted from the total delay. If this is done, the net delay is approximately 15 months, which is below the presumptive ceiling.
16The Jordan decision is clear that all parties have an obligation to take sustained steps to advance a case to trial. It does not distinguish between parties who have hired a legal representative and those who have not. Those who represent themselves are expected to know the law and procedures that apply to them.
17The issue I must decide is whether any of the delay between the date that Mr. McKinnon requested an Early Resolution meeting and when the notice of that meeting was sent should be deducted as defence delay.
18This issue was considered in the Grewal6 case. It has similar facts to this one. It was also a case with a single charge of careless driving. That matter also took longer to be tried because, in part, the Accused requested a meeting with a prosecutor. Justice of the Peace Howard decided that this time was not to be deducted as defence delay because the defendant did not take any deliberate steps that delayed the matter; rather he was entitled to request a meeting with the prosecutor and could not do anything to alter the time it took to schedule and hold that meeting.
19Mr. McKinnon similarly is entitled to have a meeting with the prosecutor. However, there is an important factual difference between Grewal and this case. On March 13, 2023 Mr. McKinnon requested an Early Resolution meeting with a prosecutor. He immediately received a response from the prosecution office that said that notice of this meeting would be sent to him within 60 days. The notice also contained phone and email contact information for the prosecutor’s office and invited him to contact them if he had any questions.
20Unlike Mr. Grewal, Mr. McKinnon could have taken steps to move his matter to trial. He was invited to contact the prosecutor if he had questions. He did nothing when he did not receive the Early Resolution notice after 60 days, 90 days or even 120 days. There was no evidence that he ever replied to the email, phoned the prosecutor or made any attempts to contact the prosecutor or move his matter along. He must bear some responsibility for this.
21If even one-half of the time from March 13th to October 30th, which would be three and one-half months, is deducted for defence delay, the net delay is below the presumptive ceiling.
22In the alternative, Mr. McKinnon had three choices when he was charged on March 9th. He could pay the fine, he could request an Early Resolution meeting, or he could proceed to trial. He chose to request an Early Resolution meeting. By doing this, the matter was diverted from the trial stream, instead potentially moving it to resolution without trial. Only after the matter was not resolved at the Early Resolution meeting was it returned to the trial stream. This delayed the matter’s conclusion. While Mr. McKinnon did not have complete control over how long this additional procedural step would take to be completed, as a party to the process he must bear some responsibility for the additional time it took for his matter to be concluded as a result.
23Deducting some of the delay caused by taking this step as defence delay would also result in the net delay in this matter being below the presumptive ceiling of 18 months.
24Mr. McKinnon did not argue this matter was not tried within a reasonable time even if the net delay was below the presumptive ceiling. The prosecution also did not address this issue. So, I need not consider it.
C. Conclusion
25After examining the steps taken by each party, and the circumstances of delay at each step, I am convinced that the matter was tried in a reasonable time.
26Therefore, there was no breach of Mr. McKinnon’s right to a trial in a reasonable time as guaranteed by the Charter.7 The Application is dismissed.
MR. MCKINNON IS GUILTY OF CARELESS DRIVING
27Section 130 of the Highway Traffic Act8 states
(1) Every person is guilty of the offence of driving carelessly who drives a vehicle or streetcar on a highway or in a specified place without due care and attention or without reasonable consideration for other persons using the highway or specified place.
28I must decide if Mr. McKinnon’s act of entering the intersection at Wilson Rd. and Raleigh Avenue to make the left turn is careless driving.
29The Ontario Court of Appeal stated in the Beauchamp decision9 that for driving to be careless, there must be something more than a mere error in judgement. The question is ‘what would an ordinary prudent person in the position of the driver have done?’10 In the Shergill decision11 the Court clarified this, stating that a mere departure from the standard of care is enough to find someone guilty of careless driving.
30Mr. McKinnon testified that he could not see the intersection before he entered it. The truck driver gestured to him to drive on, or at least that is what Mr. McKinnon believed. There was no evidence about what the gesture actually meant. Although Mr. McKinnon did not fully trust this driver, he relied, at least in part, on this gesture when he accelerated into the intersection.
31A driver has an obligation to ensure that it is safe to make a move on a highway before doing so. Mr. McKinnon did not. He entered the intersection and accelerated into a left turn when he could not see the way clearly. By doing so, he failed to act as a reasonably prudent person would in the circumstances and departed from the standard of care. He drove carelessly.
32Mr. McKinnon argued that even if he drove carelessly, he exercised due diligence, which is a defence to this charge. He argued that a driver ought to be able to rely on gestures from another driver.
33A gesture by one driver to another is not a formal traffic signal. It is not a hand signal that is recognized in law (for example an arm held straight out to the left that signals that one is turning left). There is no guarantee that the person who sees a gesture will interpret it as intended by the person making the gesture. It also does not replace a driver’s obligation to ensure that their proposed action is safe before taking it.
33Therefore, relying on a gesture from another driver is not sufficient to establish due diligence.
34Mr. McKinnon is guilty of careless driving contrary to the Highway Traffic Act.
Released: January 24, 2025
Signed: Justice of the Peace V. Hazlett Parker
Footnotes
- Highway Traffic Act, R.S.O. 1990, c. H.8 as am. s. 130
- Canadian Charter of Rights and Freedoms, The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11
- Ibid. s. 11(b)
- R. v. Jordan2016 SCC 27, [2016] S.C.J. No. 27
- Ibid. para. 48
- Halton (Regional Municipality) v Grewal, 2024 ONCJ 470)
- Supra note 2
- Highway Traffic Act, R.S.O. 1990, c. H.8 as am.
- R v. Beachamp, 1952 CanLII 60
- Ibid.
- R. v. Shergill, 2016 ONCJ 163