R. v. Christopher Ramsay

Court Information

Between

Christopher Ramsay - Applicant

And

The Queen - Respondent

In the

Ontario Court of Justice Toronto, Ontario

Before: P. Kowarsky J.P.

Ruling on Application for Stay of Proceedings pursuant to sections 11(b) and 24(1) of the Charter of Rights and Freedoms

Heard: August 19, 2016

Ruling: September 20, 2016

Legal Representation

Counsel Joseph Heller for the Applicant

Provincial Prosecutor Andrew Smith for the Respondent

A. THE CHARGES

[1] The Applicant is charged with the following offences:

i) Drive while under suspension contrary to section 53(1) of the Highway Traffic Act; and

ii) Driver fail to properly wear seatbelt contrary to section 106(2) of the Highway Traffic Act

B. INTRODUCTION

[2] Prior to the defendant's entering a plea to the charges, defence counsel brought a motion to stay the proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms ("the Charter") on the grounds that the Applicant's right to be brought to trial within a reasonable time pursuant to section 11(b) of the Charter had been infringed.

[3] Since there were no issues with respect to service and filing, the motion proceeded immediately.

[4] After a full day of hearing, I reserved my judgment. This is my Ruling.

C. OVERVIEW

[5] Section 11(b) of the Charter provides that:

"Any person charged with an offence has the right to be tried within a reasonable time."

[6] Section 24(1) of the Charter provides as follows:

"Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."

[7] In 1990, the Supreme Court of Canada ("S.C.C.") rendered a decision in R. v. Askov, [1990] 2 S.C.R. 1199.

[8] On July 8, 2016, the S.C.C. delivered its judgment in R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No 27. At paragraph 92 of Jordan, the S.C.C. stated as follows:

"When this Court released its decision in Askov, tens of thousands of charges were stayed in Ontario alone as a result of the abrupt change in the law. Such swift and drastic consequences risk undermining the integrity of the administration of justice."

[9] In 1992 the S.C.C. rendered its decision in R. v. Morin, [1992] 1 S.C.R. 771 setting out guidelines for all courts considering section 11(b) applications. The guidelines are as follows:

1. The length of the delay
2. The reasons for the delay including:
   • The inherent time requirements of the case
   • The actions of the accused
   • The actions of the Crown
   • The limits on institutional resources
   • Other reasons for the delay
3. Waiver of any time periods by the accused
4. Prejudice suffered by the accused as a result of the delay

[10] The Court indicated that in dealing with Provincial Court matters institutional delay should not exceed 8 to 10 months. However, the Court went on to say that:

"A longer period of institutional delay for Provincial Courts is justified on the basis that not only do these courts dispose of the vast majority of cases, but that on average it takes more time to dispose of cases by reason of the demands placed on these courts."

D. THE IMPACT OF JORDAN ON SECTION 11(b) MOTIONS

[11] At paragraph 1 of the introduction to the majority decision in Jordan the Court said the following:

"Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on a special significance. Section 11(b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused 'to be tried within a reasonable time.'"

[12] It is noteworthy that the Court refers only to "the criminal law context" and repeats that throughout the judgment. By virtue of the Latin interpretive concept "inclusio unius est exclusio alterius", this reference to criminal law could be construed as being the Court's intention to exclude other types of offences from the entire section 11(b) issue.

[13] However, throughout the 24 years during which section 11(b) motions were governed by the Morin framework, persons charged with provincial offences have been required to be brought to trial within a reasonable time too. There is no doubt that the S.C.C. never meant to exclude them from the new 11(b) framework. The Charter refers to "any person charged with an offence." There is no mention of "criminal offence" to the possible exclusion of all other types of offences.

[14] Moreover, in R. v. 974649 Ontario Inc. 2001 SCC 81, [2001] 3 S.C.R. 575, the S.C.C. at par. 79 held that:

"Provincial Offences Courts, like other criminal trial courts are the preferred forum for issuing Charter remedies in the cases originating before them, where they will have the 'fullest account of the facts available.'"

See: Mills v. The Queen, [1986] 1 S.C.R. 863.

The Court went on to say that:

"Provincial offences courts are, for practical purposes, quasi-criminal courts, determining guilt and innocence and imposing commensurate criminal penalties."

[15] Accordingly, the Court found that a Provincial Offences Court is a court of competent jurisdiction as envisaged under section 24(1) of the Charter, and that justices of the peace in these courts are indeed vested with the jurisdiction to rule on section 11(b) and other Charter motions in trial matters adjudicated by them. Citing the dictum of the S.C.C. in R. v. O'Connor, [1995] 4 S.C.R. 411, the Court held that:

"This role commends a full complement of criminal law remedies at the disposal of provincial offences courts."

[16] At paragraph 78 of 974649 the Court dealt with "The Function of the Provincial Offences Court" in the following words:

"The function of a provincial court operating under the POA is to try provincial offences. While the majority of these offences involve minor regulatory infractions, they also concern important matters like environmental protection, as here, workplace health and safety. These offences carry penalties ranging from significant fines to terms of imprisonment. The public and penal nature of such prosecutions suggests they are more criminal than civil in nature."

[17] The issue before the Court in 974649 was whether in appropriate circumstances, after finding a Charter violation, the POA courts have the jurisdiction to award costs against the Crown. The Court concluded at par. 97 that the provincial offences court:

"enjoys the necessary power to grant the remedy sought in the present case, and is thus a 'court of competent jurisdiction' within the meaning of section 24(1)."

[18] The effect is that where the POA court finds that the conduct of the prosecution warrants an order for legal costs on the facts of a particular case, the court may make such an award.

[19] For the past 24 years the guidelines established by the S.C.C. in Morin were the bedrock for consideration of all 11(b) applications, and the jurisprudence which followed Morin includes a multitude of decisions at all levels interpreting these guidelines contextually with respect to the particular circumstances of each case.

[20] However, in Jordan at par. 29 the Court said the following:

"While this Court always recognized the importance of the right to a trial within a reasonable time, in our view, developments since Morin demonstrate that the system has lost its way. The framework set out in Morin has given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it."

[21] After an analysis of the Morin deficiencies, the Court concluded as follows at par. 37:

"Finally, the Morin framework is unduly complex. The minute accounting it requires might fairly be considered the bane of every trial judge's existence….This micro-counting is inefficient, relies on judicial 'guesstimations', and has been applied in a way that allows for tolerance of ever-increasing delay."

[22] In Jordan, the Court established a new framework for cases in relation to alleged breaches of the section 11(b) right, and, citing Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, at par. 84 the Court stated the following at paragraph 93:

"We recognize that this new framework is a departure from the law that was applied to section 11(b) in the past. A judicial change in the law is presumed to operate retroactively and apply to past conduct."

[23] Consequently, the Court held that:

"Here, there are a variety of reasons to apply the framework contextually and flexibly for cases currently in the system… As well, the administration of justice cannot tolerate a recurrence of what transpired after the release of Askov, and this contextual application of the framework is intended to ensure that the post-Askov situation is not repeated."

E. THE NEW FRAMEWORK

[24] At paragraph 5 of Jordan, the S.C.C. succinctly explained the new framework in the following words:

"A change of direction is therefore required. Below, we set out a new framework for applying section 11(b). At the centre of this new framework is a presumptive ceiling on the time it should take to bring an accused person to trial: 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. Of course, given the contextual nature of reasonableness, the framework accounts for case-specific factors both above and below the presumptive ceiling."

[25] I quote hereunder paragraph 105 of Jordan verbatim:

The new framework for s. 11(b) can be summarized as follows:

• There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry).
• Defence delay does not count towards the presumptive ceiling.
• Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances.
• Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.
• If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted.
• If the exceptional circumstance arises from the case's complexity, the delay is reasonable.
• Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.
• For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties' reliance on the previous state of the law.

F. THE CHRONOLOGY OF THE CASE AT BAR

[26] I chronicle below the steps pertaining to this case submitted by defence counsel.

a) March 16, 2015 - Defence counsel faxed a request for disclosure to the prosecutor's office.

b) March 18, 2015 - The Information was sworn.

c) April 7, 2015 – First appearance. Initial disclosure, consisting of a police synopsis and notes from both the officer in charge and the transporting officer, was provided to the defence. The notes contained a reference to the information provided by the Ministry of Transportation ("MTO") that it was believed that the defendant had multiple driver's licences in various names.

d) April 24, 2015 – Defence counsel faxed a request addressed to the provincial prosecutor's office for "all the remaining documents and materials you intend to rely upon in this prosecution." That request was erroneously faxed by defence counsel to the city prosecutor's office, and therefore did not reach the office of the provincial prosecutor.

e) May 19, 2015 – This was the second appearance. The agent for defence counsel provided a hard copy of the disclosure request of April 24, 2015 to the provincial prosecutor. The matter was adjourned to enable the prosecutor to obtain and disclose the outstanding disclosure, which comprised copies of the certified documents from the MTO in relation to the driving while under suspension charge.

f) May 25, 2015, 6 days after the prosecutor received the hard copy of the defendant's request for the further disclosure, defence counsel sent a further request for the outstanding disclosure.

g) July 7, 2015 - disclosure of the MTO's documents was still outstanding because the prosecutor had not yet received them. Nevertheless, the parties agreed to set a trial date since the prosecution's disclosure obligation is a continuing one, and it was accepted that such disclosure would be provided to the defence as soon as it was received from the MTO. Accordingly, the matter was set down for trial on October 29, 2015.

h) July 15, 2015 – Disclosure of Ministry documents was provided to the defence.

i) September 21, 2015 – A telephone Crown pre-trial was conducted, and a Judicial Pre-trial Conference ("JPT") was booked for October 2, 2015.

j) October 2, 2015 – The first JPT was held. Arising out of the information received by the prosecution from the MTO, it was alleged that the defendant had had multiple driver's licences ostensibly in various names. To enable the prosecution to investigate this aspect further with a view to possibly calling additional witnesses and providing further disclosure in relation thereto, it was established that the trial could not proceed on October 29, 2015. Consequently, on that day the matter was adjourned to January 7, 2016 to accommodate a continuing JPT scheduled for December 21, 2015.

k) December 18, 2015 – Further disclosure was provided to the defence. That disclosure consisted of a series of certified documents from the MTO together with a cover letter dated December 17, 2015 from the MTO.

l) December 21, 2015 – The JPT continued. At that time the issue arose in relation to the allegation that the defendant had had multiple driver's licences in various names, all ostensibly belonging to the defendant. The MTO had informed the prosecutor that in 2013 it had merged 7 such driver's licences into 1. It was agreed that it had now become necessary for the prosecution to investigate the matter further, to decide whether to call additional witnesses, which would result in an obligation to provide further disclosure in regard thereto.

m) February 8, 2016 – A continuing JPT was held at which time the prosecutor advised that having done the required investigation with the MTO, he did not plan to call any additional witnesses. A trial date was then set for the first available date for a one-day hearing, which was August 19, 2016.

G. PROSECUTOR'S STATEMENTS OF OCCURRENCES FROM AUGUST 10

[27] Mr. Smith told the court the following:

i) On August 10, 2015 he had a telephone pre-trial discussion with defence counsel Howard Rubel. "We both noted that the Notice of Suspension was sent to the defendant, Christopher Ramsay, in 2013, and that this was odd because the unpaid Highway Traffic Act ("HTA") fines were from the year 2000, and that this was a Re-issued Notice of Suspension."

ii) As a result, both he and counsel Rubel agreed that this was unusual, and that Mr. Smith would check into it. The following day, August 11, 2015 Mr. Smith called the MTO, and left a message for the person who deals with these matters to call him.

iii) The next day, August 12, he received a return call from the MTO. The caller told him that in 2013 all the driver's licences pertaining to Mr. Christopher Ramsay had been merged into one in his name. Mr. Smith asked why this had been done. The response was that this was done after the MTO had "become aware of the situation."

iv) The same day, on August 12, Mr. Smith contacted defence counsel Rubel to inform him of his conversation with the MTO earlier that day.

v) "At this point we both realised that this was not going to be a straightforward, 'run of the mill' case." They agreed that the matter was more complicated, would probably take more than one tier for the trial, and that a judicial pre-trial should be held. Mr. Smith said that he immediately arranged for a JPT to be held on October 2, 2015.

vi) At the JPT on October 2 the presiding Justice of the Peace, His Worship K. Madigan, Mr. Rubel and he agreed that there needed to be "further context re this matter." Mr. Smith undertook to contact the MTO and look into "all these driver's licences."

vii) He obtained an official document from the MTO which laid out the details of what had occurred in relation to the numerous driver's licences. That document had been disclosed to the defence; it was submitted to the court and entered into evidence as Prosecution Exhibit #1.

viii) This document indicated that the defendant's driver's licence had been suspended in 2001, and that when all his licences were merged into one, the MTO converted the original Notice of Suspension from 2001 into the name of Christopher Ramsay, gave it a new suspension number, and forwarded it to the defendant.

ix) Shortly before the continuing JPT which had been booked for December 21, 2015, Mr. Smith obtained 'screen shots' from the MTO of all the relevant driver's licences which included digitized photographs of the holders, and he disclosed them to the defence without delay.

x) At the second JPT on December 21, 2015, defence counsel Rubel was in attendance. There were further discussions regarding what had been obtained and disclosed. "I did not say that I was going to call more witnesses, although Mr. Rubel indicated that I would need to call an MTO witness to get all the material into evidence." Mr. Rubel suggested that it was also possible that the prosecution would need to call the second officer who had attended the scene after the defendant had been stopped but was still there. His Worship Madigan agreed that some consideration needed to be given to all of this.

xi) At the third JPT on February 8, 2016, Mr. Smith indicated that he would not be calling any further witnesses at the trial, and that he would be relying on section 210(7) of the HTA, which essentially provides that documents under the seal of the MTO and the signature of the Minister of Transportation are statutorily admissible as evidence subject to rebuttal by the defence.

xii) At the conclusion of the third JPT it was agreed that the time estimate for the trial was one full day. The matter was adjourned to the Set Date Court on February 18, 2016, and the trial date was then set for a full day hearing on August 19, 2016.

H. THE DRIVER'S LICENCES INVOLVED

[28] During his submissions, the Applicant's counsel provided the court with the details of numerous driver's licences alleged to have belonged to the defendant under various names, all of which including the screen shots had been disclosed to the defence.

Date of Issue	Name on Licence
December 8, 2011	Dave Westmore
December 9, 2011	Brandon Carter
December 12, 2011	Brandon Powell
September 20, 2013	Jason Taylor
September 23, 2013	Michael Chase
September 24, 2013	Patrick Frost
September 25, 2013	Christopher Ramsay

I. THE RESPONDENT'S ARGUMENT AGAINST A STAY

[29] The prosecutor submitted that only the decision in Morin and its subsequent jurisprudence should apply to the consideration of section 11(b) in this case because Jordan was released only some 6 weeks prior to this trial, and both parties had operated under the Morin regime. Mr. Smith analysed the periods concerned, and argued as follows:

a. Mr. Smith opposed the Applicant's argument that the decisions in R. v. Omarzadah, [2003] O.J. No. 5712 (O.C.J.) and R. v. Rowan, 2004 ONCJ 153, [2004] O.J. No. 3504 (O.C.J.) support his contention that regulatory HTA trials in general should come to trial after a limited period of delay, and that the presumptive ceiling of 18 months set out in Jordan should not apply to the case at bar.

b. Mr. Smith proffered that those two cases were under Part I of the POA, which involves a much simpler procedure than a case such as the one at bar. This case is being prosecuted under Part III of the POA, which is reserved for more serious cases than the minor traffic cases in Omarzadah and Rowan. Furthermore, in the middle of the proceedings, it became clear that this case was significantly more complex than what had originally been thought by both the prosecution and the defence. This occurred as a direct result of the MTO's notification of the multiple licences and the merger thereof. This situation gave rise to the need for JPT conferences, which required significant more time to bring this matter to trial. As the Ontario Court of Appeal held in R. v. Cranston, 2008 ONCA 751:

The more complicated matters are, the greater the inherent time requirements.

c. Consequently Mr. Smith submits that all the time taken in relation to the three JPT's should be regarded as neutral and part of the inherent time required. Accordingly, since this became a complicated case which required ongoing JPT conferences, all the time between October 2, 2015, the first JPT, and February 18, 2016, when the trial date was set, a period of about four and a half months, should be considered neutral.

d. In support of this submission, Mr. Smith relied on the Ontario Court of Appeal's decision in R. v. Nguyen, 2013 ONCA 169, [2013] O.J. No. 1243 at paragraph 54:

"The time required to schedule, prepare for, and conduct pre-hearing conferences should be considered an inherent time requirement of the case, both generally and specifically for the purposes of a section 11(b) analysis."

In coming to that conclusion, the Ontario Court of Appeal cited R. v. Khan, 2011 ONCA 173, 270 C.C.C. (3d) 1, at paragraph 53, R. v. Tran, 2012 ONCA 18 at paragraphs 36-37, and R. v. Cranston (supra) at paragraph 46. Mr. Smith provided copies of the Nguyen decision to defence counsel and the court.

e. As soon as Mr. Smith was informed about the issue of the merger of numerous licences, he took steps to "find out about it" even before the first trial date of October 29, 2015. He argues against defence counsel's statement that the prosecution should have known about the multiple licences merger from the outset, and that disclosure thereof should have been provided to the defence at the first appearance.

f. It is common ground that the officer's notes which were disclosed to the defence at the first appearance made reference to numerous driver's licences being held by the defendant in different names. However, Mr. Smith notes that the police did not charge the defendant with the offence of having more than one licence. Accordingly, there appeared to be no reason for the prosecution to follow up on that because the charges were for not wearing a seatbelt and for driving while under suspension.

g. It follows that initially all the prosecutor needed in addition to the officer's notes were the certified documents from the MTO confirming the licence suspension and that written notification thereof had been sent to the defendant as required. Consequently, there was no further disclosure that could or should have been provided to the defence at the first appearance as suggested by the defence.

h. Mr. Smith referred to the affidavit of the defendant, which was included in the Applicant's Application Record, in which he contends that he has been severely prejudiced by the delay because he has been unable to reinstate his driver's licence, which he requires for his employment and in relation to visits with his children.

i. Applicant's counsel informed the court that after receiving the summons, the defendant contacted the MTO to ask whether he could reinstate his licence but was informed that the MTO had no idea which licence had attracted the HTA fines in the first place, and that it had no idea what he could do to reinstate his driver's licence. The court was also informed by Applicant's counsel that the total of the outstanding fines was $157.00, but for reasons unclear, the Applicant had been precluded from paying that amount and applying to the MTO to reinstate his licence.

j. According to Mr. Smith, the defendant should have taken more steps with respect to the reinstatement of his licence by communicating further with the MTO; that he alone was at fault for failing to do so, and that any such prejudice was in no way caused by any delay in bringing this matter to trial.

k. The prosecutor submitted that having made his calculation based on the considerations to which he referred in his arguments, under the Morin regime the total delay to be considered in this case is 8 months and 25 days, which is well within the time allowed under both the Morin and the Jordan frameworks.

l. The prosecutor therefore asked the court to deny the application for a stay of proceedings in this case.

J. PREJUDICE

[30] With respect to prejudice, the Supreme Court stated at paragraph 33 of Jordan:

"..as the parties and interveners point out, the treatment of prejudice has become one of the most fraught areas in the section 11(b) jurisprudence: it is confusing, hard to prove, and highly subjective. As to the confusion prejudice has caused, courts have struggled to distinguish between 'actual' and 'inferred' prejudice."

[31] Firstly, I agree with the prosecutor that the delay in this case in and of itself was not prejudicial to the defendant. Secondly, I defer to Jordan at paragraph 33:

"Any attempts to draw this distinction (between actual and inferred prejudice) have led to apparent inconsistencies such as that prejudice might be inferred even when the evidence shows that the accused suffered no actual prejudice. Further, actual prejudice can be quite difficult to establish particularly prejudice to security of the person and fair trial interests."

[32] For the reasons proffered by the prosecutor, coupled with the above-mentioned dicta of the S.C.C. I find that prejudice plays no part in the assessment of reasonable delay in these proceedings.

K. THE APPLICANT'S BOOK OF AUTHORITIES

[33] While giving careful consideration to this application, I referred to the Applicant's Book of Authorities that contained 29 cases, 27 of which were all decided prior to Jordan. I will deal hereunder with what I believe is material to this case:

a. In R. v. Gantwerger, [2009] O.J. No. 3660 (O.C.J.), the provincial court was dealing with the issue of disclosure, and stated the following:

"It is the Crown's obligation to provide disclosure where the material is readily available."

In my view, the prosecutor in this case did exactly that, including providing the additional disclosure to the defence as soon as he had received it from the MTO.

b. Similarly, in R. v. Brown, [1998] O.J. No. 4682 (Ont. Gen. Div.) at paragraph 35 the court held:

"All information in the custody or possession of the Crown that is not clearly irrelevant must be disclosed to the defence."

I am satisfied that the prosecution did precisely that.

c. In R. v. Stacey, [2002] O.J. No. 5143 (Ont. S.C.) at paragraph 23 the Superior Court held that:

"The Crown is responsible for timely disclosure (Morin page 18). While the actions which contribute to delay may be the actions of the police, they are nevertheless attributable to the prosecution."

Durno J. excoriated the investigating officer for "inexplicably withholding disclosure for two years," and went on to say that:

"In the absence of any explanation for his conduct he was either seriously negligent or simply indifferent to his obligations."

Needless to say, nothing even remotely suggesting any such behaviour on the part of the police, occurred in the case before me.

d. In R. v. Egger, [1993] S.C.J. No. 66 at paragraph 19, referring to R. v. Stinchcombe, [1991] 3 S.C.R. 326, the Supreme Court held that:

"the Crown has a duty to disclose to the accused all information reasonably capable of affecting the accused's ability to make full answer and defence, and to do so early enough to leave the accused adequate time to take the steps he or she is expected to take that effect or may affect such right."

e. Having taken into account all that I have heard from both the Applicant and the Respondent, I am completely satisfied that in all the circumstances of this case, the prosecution met its disclosure obligations effectively and efficiently.

f. In Tab 23 of the Applicant's Book of Authorities, he refers to R. v. Dosani, [2004] O.J. No. 4524 (O.C.J.). At paragraph 40 the provincial court said the following:

"The system of crown and judicial pre-trials has been put in place at least in part to ensure that resolution possibilities are canvassed prior to setting trial dates and that potential trial issues are reviewed in terms of time requirements. These objectives can be achieved without the defence receiving every item of disclosure. If missing disclosure is of such a nature that it does not impact upon the purposes of the pre-trial process, then it may in a given case be appropriate to set a target trial date absent the disclosure in question. If however, the parties cannot hold a meaningful pre-trial without the missing disclosure, then setting a target trial date is generally not appropriate."

[34] It is completely apparent that the only item of disclosure outstanding at the time that the first trial date was booked, was the Ministry's documents in relation to the licence suspension charge. At that time, there was no reason to believe that the entire case would suddenly become more complex, and so the trial date was set for October 29, 2015. That date had to be vacated after it became clear that resulting from the enquiries relating to the merger by the MTO of the numerous driver's licences in 2013, the matter required further investigation, and disclosure in due course.

L. ANALYSIS AND FINDINGS

[35] At page 10, paragraph 11 of the Applicant's Factum he states:

"The Applicant respectfully submits that following the Court's analysis in Jordan, the ceiling for [a] Highway Traffic matter should be set under 18 months, at between 14-16 months."

[36] The Applicant submits that the delay of 17 months and 1 day exceeds "the presumptive ceiling of 14-16 months." And that consequently in accordance with the decision in Jordan, the onus falls on the Prosecution to establish the presence of exceptional circumstances.

[37] The Applicant submits that the defence did not waive or cause any delay whatsoever, and that "his actions were consistent with the desire to move the process forward as quickly as possible." (Factum Page 12, paragraph 20).

[38] While I agree that the defendant did not waive or cause any delay, I find the following comments by the Applicant to be without any merit whatsoever:

[39] Page 14, paragraph 24 of the Factum:

"In the case at bar, there are no 'exceptional circumstances' at play. The case at bar is neither inherently lengthy, nor unduly complex. The case involves allegations of conduct alleged to have been complete at the time the Applicant received his summonses. All that was required to substantially complete disclosure was the photocopying of involved officers' notes, the preparation and disclosure of the Ministry of Transportation Records at issue and the disclosure of material explaining the license merging process. The Applicant respectfully submits that this disclosure should have been complete and provided to the Applicant at his first appearance on April 7, 2015, over one and a half months after the investigation was complete and he was summonsed. These materials, (he says) could easily have been in existence by the time of the first appearance of April 7, 2015. Instead, disclosure was not confirmed by the prosecution to be complete until 9 months later (February 8, 2016.)"

[40] I find it intriguing that counsel for the Applicant completely ignores and circumvents all the intervening factors and issues that only came to the attention of the prosecutor and the defence later, giving rise to the need to investigate the following:

a) the merger by the MTO of the multiple driver's licences; and

b) why the Notice of Suspension was served on the defendant in 2013 arising out of a failure to pay an outstanding HTA fine of $157 in regard to an offence date of June 1, 2000, in relation to a driver's licence in the name of Jason Taylor, whose date of birth is noted as 15 May 1975, Licence # 9643880750515 – and that the motor vehicle concerned carried Ontario Licence Plate No. AFHK793.

[41] "Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case. The court should not hold the Crown to a standard of perfection as long as the court is satisfied that the Crown has done its part to ensure that the case proceeded expeditiously." (Jordan at paragraphs 90 and 91).

[42] In cases commenced by summons or arrest, the delay starts from the date on which the Information is sworn. See: R. v. Kalanj, [1989] 1 S.C.R. 1594.

[43] The Information in this case against Christopher Ramsay was sworn on March 18, 2015. The trial date was on August 19, 2016. The overall delay is 17 months and 1 day.

[44] Jordan established that the presumptive ceiling in provincial court cases is 18 months. On the other hand, the Court said at paragraph 98:

"the section 11(b) rights of all accused persons cannot be held in abeyance while the system works to respond to the new framework. Section 11(b) breaches will still be found and stays of proceedings will be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual. We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case."

[45] I reject the arbitrary submission of the Applicant's counsel that in cases under the Highway Traffic Act, the presumptive ceiling should be 14 or 16 months. Firstly, the S.C.C. made no mention whatsoever that any special treatment should be afforded in relation to provincial offences cases. Secondly, the charges in this case are under Part III of the POA, which are more complex and generally take longer to complete than minor traffic trials under Part I of the POA.

[46] Even when considering the guidelines of 8 to 10 months established by the Supreme Court in Morin for provincial court matters in section 11(b) cases, it must be remembered that Morin was released some 24 years ago.

[47] In R. v. 974649 Ontario Inc. (supra at paragraph 38) McLachlin C.J.C. made the following instructive comment:

"The intention of Parliament or the legislatures is not frozen for all time at the moment of a statute's enactment, such that a court interpreting the statute is forever confined to the meanings and circumstances that governed on that day. Such an approach risks frustrating the very purpose of the legislation by rendering it incapable of responding to the inevitability of changing circumstances. Instead, we recognize that the law speaks continually once adopted: Tataryn v. Tataryn Estates, [1994] 2 S.C.R. 807 at p. 814; see also Interpretation Act, R.S.O. 1990, c. I.11, s. 4. Preserving the original intention of Parliament or the legislatures frequently requires a dynamic approach to interpreting their enactments, sensitive to evolving social and material realities. While the courts strive ultimately to give effect to legislative intention, the will of the legislature must be interpreted in light of prevailing, rather than historical circumstances."

[48] Adapting the reasoning of Chief Justice McLachlin to the case at bar, I understand her dictum to mean that in making their decisions, courts must ever be mindful of the fact that the concept of a "reasonable time" in section 11(b) of the Charter was "not frozen for all time" in 1982, "such that a court interpreting the statute is forever confined to the meanings and circumstances that governed on that day. Such an approach risks frustrating the very purpose of the legislation by rendering it incapable of responding to the inevitability of changing circumstances" in the Provincial Offences Courts, particularly in Toronto. These major changes in circumstances relating to provincial offences in Toronto, I believe, do in fact require a "dynamic approach to interpreting their [Parliament's] enactments." This requires an approach, which is sensitive to these "evolving social and material realities."

[49] In this connection, I take note of the fact that Provincial Offences Courts in the Greater Toronto Area have seen a dramatic increase in their lists and workloads in the 26 years since the decision of the Supreme Court in Askov. In all likelihood, this is partly because of the tremendous influx of new immigrants into the Toronto region during that period.

[50] In this regard, the Ontario Court of Appeal in Kovacs-Tatar, [2004] O.J. No. 4756 quoted the following dictum of Arbour J.A. in R. v. Bennett, [1992] 2 S.C.R. 168 at p. 471:

"What is acceptable systemic delay may vary greatly throughout the Province. What is appropriate in one district may not be tolerable in another and what was a reasonable time in 1984 may no longer be so in 1991."

[51] The Ontario Court of Appeal then went on to note that this statement by Arbour J. is "equally apt, if not more so, in 2004." To this, I would respectfully add: "if not even more so in 2016."

[52] At the outset, it appeared that this was a straightforward Part III matter, and that after the disclosure of the officer's notes and the Ministry documents, the matter should have been ready to go to trial within a very reasonable period. That is why the first trial date was October 29, 2015. However, once it emerged that there were numerous driver's licences in various names apparently belonging to the defendant, and that the MTO had merged them into one licence in 2013, the case became far more complex and required much more time. In consequence thereof, I find that in this case, the presumptive ceiling is 18 months for this complex quasi criminal case as it is for criminal cases in provincial courts.

[53] In Jordan at paragraph 83, the Court predicted:

"We expect stays beneath the ceiling to be granted only in clear cases. As we have said, in setting the ceiling, we factored in the tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and increased complexity of most cases."

[54] Furthermore, according to the decision of the Ontario Court of Appeal in Nguyen (supra) I find that the total amount of time taken in relation to the three JPT conferences is "considered an inherent time requirement for the case, both generally and specifically for the purpose of a section 11(b) analysis." Such a finding reduces the total period of delay substantially. Also, an intake period of almost two months was held to be reasonable and neutral in R. v. Hussain, [2005] O.J. No. 158 (O.C.J.), a relatively straightforward highway traffic case. It follows that in the case at bar, I find the actual delay to be well below the presumptive ceiling of 18 months.

[55] At paragraph 82 of Jordan, the Court held that:

"A delay may be unreasonable even if it falls below the presumptive ceiling."

It is the defence which bears the onus of showing that the delay is unreasonable. "To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail."

[56] "The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings." (Jordan paragraph 87).

[57] As suggested in paragraph 89 of Jordan, I have already dealt with the reasonable time requirements of this case, employing the knowledge which I have in this jurisdiction, where I regularly preside, and have done so for approximately a decade, including how long a case of this nature typically takes to get to trial "in light of the relevant local and systemic circumstances."

[58] As the Ontario Court of Appeal held in R. v. Felderhof, [2003] O.J. No. 4819:

"One of the evolving social and material realities is that litigation, even in the Provincial Offences Court, has become more complex and trials longer."

[59] "Where the Crown has done its part to ensure that the matter proceeds expeditiously – including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses, it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection." (Jordan paragraph 90.)

[60] Having found that the delay in this case is below the presumptive ceiling, in order to establish that the delay was nevertheless unreasonable, the defence must establish two things: "(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have."

[61] In my view, the defence did in fact take meaningful steps which demonstrated a sustained effort to expedite the proceedings. However, I find that owing to the additional time requirements arising from the advent of the complexities set out previously, this case did not take markedly longer than it reasonably should have. Indeed, I am satisfied that both sides acted reasonably and expeditiously throughout the proceedings in this case as it evolved.

M. DISPOSITION

[62] For all of these reasons I find that the Applicant's section 11(b) rights were not infringed, and that the time from Information to Trial was reasonable in the circumstances. The Applicant's Motion to stay these proceedings is denied, and the matter will proceed to trial.

P. Kowarsky JP