Her Majesty the Queen v. Nguyen Her Majesty the Queen v. Graci

[Indexed as: R. v. Nguyen]

Ontario Reports

Court of Appeal for Ontario

Strathy C.J.O, Gillese and Watt JJ.A.

September 30, 2020

152 O.R. (3d) 667 | 2020 ONCA 609

Case Summary

Charter of Rights and Freedoms — Trial within reasonable time — Two accused in separate incidents charged with traffic offences — Both accused receiving trial dates just over a year later but within presumptive guideline of 18 months — Justice of the peace in each case dismissing Charter application for unreasonable trial delay and convicting accused — Summary conviction appeal court judge upholding presumptive 18-month guideline for provincial offences but holding that each accused was eligible for a stay notwithstanding the guideline — Stay rejected for accuseds' failure to show that they took steps to move their cases along and that their cases took longer than they should have — No basis to interfere with decision of summary conviction appeals judge — Canadian Charter of Rights and Freedoms, s. 11(b).

The two appellants, N and G, were involved in separate incidents resulting in charges under the Highway Traffic Act, R.S.O. 1990, c. H.8. Each of them requested a trial date, received a notice of trial, ordered and received disclosure, and filed a s. 11(b) Charter application returnable on the trial date. The net trial delay for N was 13 months and ten days, and for G was 12 months and 12 days. In each case, a justice of the peace dismissed the Charter application and entered a conviction. The appeals of N and G were heard together. The summary conviction appeals judge held that the 18-month presumptive ceiling established by the Supreme Court of Canada applied to proceedings under Part I of the Provincial Offences Act, R.S.O. 1990, c. P.33, Part I. Despite the delay in each case being less than the presumptive ceiling, the judge held that the appellants were eligible for a stay for unreasonable delay as long as they established that they took steps to move their cases along and that their cases took markedly longer than they should have. However, the judge found that the appellants failed to meet those criteria and as such the appeals from conviction were dismissed. The appellants appealed.

Held, the appeals should be dismissed.

The 18-month presumptive ceiling for single-stage provincial court proceedings applied to proceedings under Part I of the Provincial Offences Act. The Act was intended to provide a speedy and efficient process for dealing with regulatory offences, but the ceiling established by the Supreme Court applied uniformly. Setting different ceilings to account for varying degrees of prejudice that might be experienced by different groups and individuals would quickly become impracticable and would undermine the objective of simplifying and streamlining the s. 11(b) framework.

There was no basis on which to interfere with the refusals to grant a stay. The appeals judge carefully reviewed the determinations of the justices of the peace and thoroughly addressed the appellants' complaints relating to those determinations. She made no error in concluding that the appellants had failed to take reasonable steps to move their cases along or that their cases had not taken markedly longer than they reasonably should have. [page668]

R. v. Jordan, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27, 398 D.L.R. (4th) 381, J.E. 2016-1212, 388 B.C.A.C. 111, 335 C.C.C. (3d) 403, 29 C.R. (7th) 235, 358 C.R.R. (2d) 97, 130 W.C.B. (2d) 596, EYB 2016-267713, 2016 DFQ para. 10,451, 2016 CCAN para. 10,051, 2016EXP-2173; R. v. M. (K.J.), [2019] S.C.J. No. 55, 2019 SCC 55, 445 C.R.R. (2d) 184, 2019EXP-3111, EYB 2019-328463, [2020] 1 W.W.R. 1, 439 D.L.R. (4th) 607, 96 Alta. L.R. (6th) 1, 59 C.R. (7th) 64, 381 C.C.C. (3d) 293, apld

York (Regional Municipality) v. Tomovski, [2017] O.J. No. 6073, 2017 ONCJ 785 [Leave to appeal to C.A. refused [2018] O.J. No. 357, 2018 ONCA 57], consd

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 11(b)

Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 128 [as am.], 144 [as am.]

Provincial Offences Act, R.S.O. 1990, c. P.33, Part I [as am.]

APPEALS by accused from convictions for provincial offences.

Tiran Diran Tutunjian, for appellants.

Chris G. Bendick, for respondent Her Majesty the Queen ex rel. the Regional Municipality of York.

The judgment of the court was delivered by

[1] GILLESE J.A.: — These appeals raise the following questions about s. 11(b) [of the Canadian Charter of Rights and Freedoms] applications in proceedings under Part I of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the "POA"):

(1) Is 18 months the presumptive ceiling for Part I POA proceedings?

(2) Are the appellants entitled to a stay of proceedings despite the delay being less than the presumptive ceiling?

[2] As I explain below, my answer to the first question is yes and to the second is no. Accordingly, I would dismiss the appeals.

Background in Brief

[3] On March 8, 2017, Leonardo Graci was charged under the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA") with speeding 80 km/h in a posted 60 km/h zone.

[4] On April 12, 2017, Phuong Nguyen was charged under the Highway Traffic Act with failing to stop at a red light.

[5] Both Mr. Graci and Mr. Nguyen (together, the "appellants") requested a trial date, received a Notice of Trial in the mail, ordered and received disclosure and then filed a s. 11(b) Charter application that was returnable on their trial date.

[6] Justice of the Peace Shousterman heard and dismissed Mr. Graci's s. 11(b) application on May 14, 2018. Following a trial, Mr. [page669] Graci was convicted of speeding, pursuant to s. 128 of the HTA. He was fined $90 and given 30 days to pay the fine.

[7] Justice of the Peace Smythe heard and dismissed Mr. Nguyen's s. 11(b) application on May 22, 2018. Following a trial, Mr. Nguyen was convicted of failing to stop at a red light, pursuant to s. 144 of the HTA. He was fined $260 and given five months to pay the fine.

[8] Messrs. Gracie and Nguyen brought appeals against the dismissal of their s. 11(b) applications and convictions.

The Summary Conviction Appeals

[9] The appeals were heard together by Misener J. of the Ontario Court of Justice (the "Appeals Judge"). On April 18, 2019, the Appeals Judge released reasons for judgment in which she dismissed the appeals (the "Reasons Below").

[10] The Appeals Judge first addressed the question of what presumptive ceiling applied to Part I POA proceedings. In this regard, she declined to follow York (Regional Municipality) v. Tomovski, [2017] O.J. No. 6073, 2017 ONCJ 785 (leave to appeal to Ont. C.A. refused [2018] O.J. No. 357, 2018 ONCA 57). In Tomovski, the court held that the 18-month presumptive ceiling set out in R. v. Jordan, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27, did not apply to proceedings under Part I of the POA and that a lower "case specific" presumptive ceiling ought to be imposed. In Tomovski, a ceiling of 14 months was set, above which delay was presumed to be unreasonable.

[11] In the Appeals Judge's view, Jordan "clearly held that the ceiling for matters proceeding in provincial court is 18 months and Part I offences are proceedings in the provincial court" (para. 15, Reasons Below). She gave compelling reasons for her view, including that differing presumptive ceilings would represent "a return to the litigation-generating uncertainty of Morin" (para. 21, Reasons Below).

[12] The Appeals Judge then dealt with whether the appellants were entitled to a stay of proceedings despite the delay being less than the presumptive ceiling. The net delay for Mr. Graci was 12 months and 12 days and the net delay for Mr. Nguyen was 13 months and ten days. As the delays were less than the presumptive ceiling, the appellants had the burden to establish that (1) they took steps to move their cases along and (2) their cases took markedly longer than they reasonably should have.

[13] Before the Appeals Judge, the appellants argued that the justices of the peace held them to a standard of perfection, rather than of reasonableness, when considering whether they had taken meaningful efforts to move their cases along. The Appeals Judge disagreed, [page670] expressly accepting the findings of the justices of the peace that the appellants had done nothing to secure earlier trial dates.

[14] The Appeals Judge also rejected the appellants' submission that, because proceedings for Part I offences are straightforward, anything in excess of ten to 11 months from offence date to trial is markedly longer than is reasonable. The Appeals Judge acknowledged that Part I proceedings are simple and streamlined. However, she noted, the test for whether a case takes markedly longer than reasonable, as set out in Jordan, directs the court to consider a variety of factors including case complexity, local considerations, and whether the Crown took reasonable steps to expedite the proceedings. Further, trial judges are directed to use their knowledge of their own jurisdiction's local and systemic considerations and the length of time a similar case typically takes to reach trial in assessing the reasonableness of the time to trial in cases where the delay is below the ceiling.

[15] The Appeals Judge observed that the justices of the peace who tried the appellants' cases regularly preside in the jurisdiction and were capable of quickly applying their extensive knowledge of local conditions and their experience with similar cases to assess the delays in the cases before them.

[16] The Appeals Judge then dealt with whether the Crown had taken reasonable steps to expedite the process. The appellants submitted that it had not because it failed to offer earlier trial dates after being served with the s. 11(b) applications.

[17] The Appeals Judge disagreed. She saw no error on the part of the justices of the peace in concluding that the prosecutions had not taken markedly longer than usual. She observed that the appellants had been provided with the earliest available trial dates after they filed their Notices of Intention to Appeal and that those dates were well below the presumptive ceiling. She stated that the filing of a s. 11(b) application did not trigger an obligation on the prosecution to obtain earlier dates and noted that the prosecution was ready to proceed on the first trial date, having provided the appellants with timely disclosure. She concluded that the prosecution acted reasonably in expediting the matters.

[18] Accordingly, the Appeals Judge dismissed the summary conviction appeals.

The Issues

[19] The appellants raise the following issues:

(1) Does the 18-month presumptive ceiling established in Jordan apply to proceedings under Part I of the POA or should the ceiling be lower? [page671]

(2) Are the appellants entitled to stays despite the delays being below the presumptive ceiling?

Issue #1: 18 months is the presumptive ceiling for Part I POA proceedings

The parties' positions

[20] The appellants' position on this issue can be summarized as follows. In setting the 18-month presumptive ceiling for criminal cases in provincial courts, Jordan made no reference to if, or how, the presumptive ceiling would apply to POA proceedings. They say that the 18-month presumptive ceiling established in Jordan was premised on factors that do not -- or minimally -- apply to such proceedings. As the POA was meant to provide a speedy, streamlined procedure for regulatory offences, the appellants contend that a lower presumptive ceiling for such matters is warranted.

[21] The Crown submits that R. v. M. (K.J.), [2019] S.C.J. No. 55, 2019 SCC 55, a decision of the Supreme Court of Canada released after the appeals in this matter were decided, is a full answer to the appellants' contention. It says that M. (K.J.) makes it clear that the presumptive ceiling for all provincial court proceedings is 18 months.

Analysis

[22] I accept the Crown's submission on this issue.

[23] In M. (K.J.), the Supreme Court considered whether the presumptive ceilings in Jordan apply to youth justice court proceedings. Justice Moldaver, writing for the majority, concluded that they did. While Moldaver J. acknowledged the many reasons why youth matters should proceed expeditiously, he found there was no need to introduce a lower presumptive ceiling for such matters.

[24] At para. 65 of M. (K.J.), Moldaver J. states that Jordan established uniform ceilings "irrespective of the varying degrees of prejudice experienced by different groups and individuals". He explains that setting different ceilings would "quickly become impracticable". Moreover, he concludes, setting different ceilings "would be incompatible with the uniform-ceiling approach adopted in Jordan and would undermine its objective of simplifying and streamlining the s. 11(b) framework".

[25] In M. (K.J.), the Supreme Court reasoned that the creation of a separate criminal justice system, which codifies the need for timeliness in youth cases, does not justify the use of a different [page672] presumptive ceiling. That same reasoning applies to proceedings under Part I of the POA.

[26] The language in M. (K.J.) is categorical: the ceilings established in Jordan apply uniformly. Accordingly, while the POA 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.

Issue #2: Neither appellant is entitled to a stay of proceedings

[27] These appeals were conducted in writing. The appellants' factum focuses almost exclusively on the first issue. Their arguments on this, the second issue, are cursory. They basically amount to a reiteration of the complaints that they advanced in the appeals court below, although the complaints are now levied against the decision of the Appeals Judge rather than those of the justices of the peace.

[28] The appellants say that the Appeals Judge erred by holding them to a standard of perfection, rather than reasonableness, when considering their efforts to move their cases along. They repeat their complaint that the prosecution took no steps to mitigate the delay once served with notices of the s. 11(b) applications. And, the appellants submit, it should not have taken more than 11-12 months from the offence dates to bring the appellants to trial.

[29] I see no basis on which to interfere with the decisions under appeal. The Appeals Judge carefully reviewed the determinations of the justices of the peace on the issues of whether the appellants took meaningful steps to move their cases along and whether their cases took markedly longer than they reasonably should have. In her reasons, the Appeals Judge thoroughly addresses the appellants' complaints relating to those determinations. I agree with her determinations and with the reasons that she gave for them.

[30] As I have summarized the reasons of the Appeals Judge above, I will not repeat them here. Suffice to say that in her reasons, the Appeals Judge correctly articulates and applies the governing legal principles to unimpeachable factual findings. She made no error in concluding that the appellants had failed to take reasonable steps to move their cases along or that their cases had not taken "markedly longer" than they reasonably should have.

Disposition

[31] Accordingly, I would dismiss the appeals.

Appeals dismissed.

End of Document