Ontario Court of Justice
Date: 2026-03-09
Court File No.: Central West Region (Niagara) 998 25 21100016
Between:
His Majesty the King
-- and --
Jagdeep Singh
Before Justice J. De Filippis
Heard on March 5, 2026
Reasons for Judgment released on March 9, 2026
Ms. L. Gensey, counsel for the Crown Mr. A. Ireyomi, for the defendant
De Filippis, J.:
Introduction
[1] The defendant appeared before me for trial. He filed a Notice of Application seeking to have the evidence against him excluded at this trial because his rights as guaranteed by the Charter of Rights and Freedoms had been violated. I summarily dismissed the application, without considering its merits, because of non-compliance with the Criminal Rules of the Ontario Court of Justice. I briefly explained my decision and stated that written reasons would follow. These are my reasons.
[2] The defendant was charged with the offences of operating a motor vehicle while impaired and with a blood alcohol level above the legal limit ("over 80"). It is alleged that in the early morning hours of January 1, 2025, P.C. Arkell of the Niagara Regional Police Service was on patrol in the Clifton Hill area of Niagara Falls. It was a busy night with members of the public enjoying fireworks as part of the New Years Eve festivities. At 12:15AM, the officer received information that a white Jeep Grand Cherokee had attempted to drive onto the barricaded portion of Clifton Hill. The civilian advised the vehicle had driven up and onto the sidewalk near the Dinosaur Adventure Golf attraction, narrowly missing a crowd of pedestrians. Constable Arkell located the vehicle near the entrance to the golf attraction. The vehicle engine was running, and the defendant was the driver and sole occupant. P.C. Arkell made certain observations and arrested the defendant. The defendant was transported to a police station and subjected to breath tests. The results are said to show a blood alcohol level above the legal limit.
[3] The defendant alleges a breach of his right to retain and instruct counsel without delay, as guaranteed by section 10(b) of the Charter. The application asserts that P.C. Akrell failed to immediately advise the defendant of his right to counsel upon detention and did not immediately allow him to speak to counsel after being arrested/detained, even after notifying police of his desire to speak to a lawyer. It is said that following these breaches, the police collected evidence against the defendant that form the basis of the criminal charges (i.e. the indicia of impairment and the breath samples). The defendant seeks an order excluding this evidence, pursuant to section 24(2) of the Charter.
Procedural History
[4] The Information was sworn on January 2, 2026, and the defendant first appeared in Court several weeks later. He retained counsel and a Judicial Pretrial was set for December 17, 2025. As a result, a two-day trial was set, for March 5 – 6, 2026. In accordance with local practice, the parties appeared in Court on February 4, 2026, at which time the trial dates were confirmed. There was a further appearance in Court on February 12, 2026, and the matter was then remanded to the first trial date.
[5] Present Defence counsel is employed by the small local firm retained by the defendant. A partner in the firm attended the Judicial Pretrial. The notes taken by the presiding judge were filed before me by the Crown. Those notes record, among other things, that Defence counsel advised there would not be any Charter applications. Counsel also advised that disclosure was "complete" and "defence will follow up if anything missing".
[6] As will be seen present counsel was assigned to this case by his firm on February 26, 2026. He filed the Charter application on March 2, 2026. In aid of the motion, on the eve of trial, he also requested disclosure of any video record of the booking procedure at the police station. These actions commenced three days before trial, one month after the parties confirmed readiness for trial, and two and one-half months after the Judicial Pretrial.
Legal Principles
[7] The Ontario Court of Justice Criminal Rules regarding time for service are unambiguous. Pursuant to Rule 3.1(1), "An application in Form 1 shall be served and filed with proof of service at least 30 days before the date of the hearing of the application." As noted in the commentary to the Rules, consequences for non-compliance can include "dismissal of the application without a hearing on the merits."
[8] The Courts have been clear that non-compliance with the Rules threatens trial fairness, both for the Defence and the Crown. In R. v. Tash, 2008 1541 (ONSC), Justice Hill explained as follows:
Rules of court do not exist simply for the sake of having rules. Rules of court....facilitate the fair and expeditious determination of Charter issues and thereby enhance the quality of the administration of justice. Rules of court serve any number of purposes including avoidance of wasteful pre-trial preparation, contributing to reliable court scheduling, the securing of a minimally adequate record upon which to adjudicate, focus of pre-trial applications, etc. "In the adversarial trial system, the court, the accused, and the community are entitled to have two informed and prepared litigants conducting the case ... The Crown is entitled to be represented in name and substance". Put differently, the "interest of an accused in pursuing whatever avenue may assist in his defence does not trump all other interests engaged by the due administration of justice" and... "justice in criminal cases is not the exclusive preserve of defendants". [citations omitted]
[9] The Supreme Court of Canada in the case of R. v. Jordan, 2016 SCC 27, at paragraphs 40-41 and 45, made it clear that all justice system participants – Judges, counsel, and defendants – have an obligation to change the culture of complacency created by non-compliance with the Rules. Indeed, when revisiting the principles set out in Jordan, the Supreme Court of Canada in R. v. Cody, 2017 SCC 31, at paragraphs 37-38, explicitly discussed how the trial judge's responsibility to push back against the culture of complacency may result in the summary dismissal of motions where appropriate. The Court emphasized "the important role trial judges play in curtailing unnecessary delay and changing 'courtroom culture'".
[10] Subsequently, the Court of Appeal for Ontario, in R. v. Kazman, 2020 ONCA 22, reiterated the importance of enforcing compliance with judicially set deadlines to live up to the direction set forth by the Supreme Court in Jordan. In upholding the summary dismissal of a Defence application to stay the proceedings pursuant to s. 11(b), Justice Doherty commented as follows:
It is unreasonable to expect that deadlines set by a trial judge can simply be ignored by an accused confident that the trial judge will feel obliged to set new deadlines. To proceed on the premise that an accused is entitled to a new deadline whenever one is feasible in the circumstances is to accept and promote the "culture of complacency toward delay in the criminal justice system", so clearly and emphatically rejected by the Supreme Court of Canada.
Non-Compliance with the Rules
[11] The Charter application was served on the Court and Crown 27 days later than the 30-day time requirement. In the initial materials filed by the defendant, no explanation is offered for this non-compliance with the Rules. After the Crown responded with a motion for summary dismissal of the application, Defence counsel replied as follows:
Counsel, acting on behalf of the Applicant, who filed the Form 1 [Charter application] was assigned to this trial on February 26, 2026.
Said Counsel had not had any involvement with this matter; including Judicial Pre-Trials, Crown Pre-Trials, or disclosure review before that date.
Said Counsel filed the Form 1 within 3 business days of assuming carriage of this matter.
It is submitted that the most appropriate remedy in this circumstance, if the Crown is not able to call the required witnesses at trial, would be for this matter to be adjourned, as opposed to this Application being dismissed
[12] It is important to note that present Defence counsel is not new counsel. He acted expeditiously to serve the Charter motion after being assigned to the case. However, the law firm, of which he is a member, did not. This may be due to internal administrative practices within the law firm for assigning work. Or it may be that present counsel took a different view of the case than the one who appeared at the Judicial Pretrial. It does not matter. Just as the Crown is indivisible for many steps in the criminal process, so too, is the Defence indivisible in certain circumstances. This case is an example of such a circumstance. There is no acceptable justification for non-compliance with the Rules.
Result
[13] The Judicial Pretrial is an integral part of the criminal trial process. It is a step in the process that creates delay. However, its objective is to prevent greater delay by providing an opportunity for the parties to meet with a judge to thoroughly discuss the issues at play as well as any anticipated motions or applications. This allows the Court to properly estimate the time required for motions and trials so that its limited resources are used efficiently. In Niagara Region, the local practice is to have a confirmation hearing, for certain cases, to address any material changes in the case since the Judicial Pretrial.
[14] The Crown submits – and the Defence has not challenged this – that if the present Charter application is allowed to proceed, further witnesses will be required on behalf of the Crown (such as the officers who transported the defendant and facilitated his call to duty counsel), as well as further argument on the application. As such, the two days authorized for the matter may no longer be sufficient, leading to further delay. I would add that the late disclosure request for video records in aid of the application would result in the adjournment of part or all of the trial for review and consideration of that evidence.
[15] An application filed in non-compliance with the Rules runs the risk of being summarily dismissed. I conclude that this is the appropriate result in this case.
[16] The request by the Defence to adjourn the trial rather than summarily dismiss the Charter application, and proceed to trial as scheduled, is not, in this case, an appropriate course of action. I come to this conclusion notwithstanding that the further delay would be attributed to the Defence for the purposes of any 11(b) analysis. Section 11(b) of the Charter is primarily intended to protect the interests of an accused. There is an important secondary purpose – the community interest in the efficient and expeditious resolution of criminal cases. In this regard, I add the following observations: The resources of the Court are limited. The days set aside for the present trial came at the expense of other defendants looking for trial time. Any adjournment will take up additional time that would be available to others.
[17] I am mindful that my conclusion may result in the summary dismissal of an arguable application. I am not persuaded that this should deter me in the present case. All such summary dismissals run the risk of preventing a meritorious application from going forward. This is an important consideration, but it cannot be determinative. Otherwise, the result would be that summary dismissal only applies to frivolous applications that are not in compliance with the Rules. This would render the Rules meaningless and result in the abdication, as stated by Supreme Court of Canada, "the important role trial judges play in curtailing unnecessary delay and changing 'courtroom culture'".
[18] The Crown motion to summarily dismiss the Defence application is granted.
Released: March 9, 2026
Signed: Justice J. De Filippis