Ontario Court of Justice

Provincial Offences Court (Toronto West Region)

Regina v. Jaswant Kahlon

Before

His Worship P. Kowarsky Justice of the Peace

Charge

Disobey Stop Sign - Fail to Stop contrary to the Highway Traffic Act Section 136(1)(a)

Ruling on Motion to Stay

Section 11(b) Charter of Rights

For the Prosecution: Ms. K. Small

For the Defendant: Mr. V. Manoukian

Hearing: May 18, 2012

Judgment: June 19, 2012

R. v. Jaswant Kahlon

[1] Introduction

This is my Ruling on a Motion brought by the Applicant for an Order staying the proceedings in this case on the grounds that his right to a trial within a reasonable time under section 11(b) of the Charter of Rights and Freedoms has been violated.

[2] Charge and Initial Notice

On September 11th 2010, the Applicant was charged by way of an Offence Notice under Part I of the Provincial Offences Act with "Stop Sign – Fail to Stop" contrary to section 136(1)(a) of the Highway Traffic Act.

[3] First Trial Date

On January 21st 2011 Courts' Administration sent a Notice of Trial to the Applicant notifying him that his trial would take place on June 24th 2011 ("the first trial date").

[4] First Trial Date - Adjournment

On June 24th 2011, the defendant did not appear personally. His appearance was through someone who identified himself to the court as Lovepreet Kahlon. He informed the court that the Applicant was ill; he had hurt his back; he was bed-ridden and unable to move. Mr. Lovepreet Kahlon requested that the court adjourn the trial.

[5] Second Trial Date - Peremptory Order

The court granted the Applicant's motion, and the matter was adjourned to December 16th 2011 for trial ("the second trial date"), and the court ordered that it was peremptory on the Applicant to proceed to trial on the second trial date.

[6] Second Trial Date - Disclosure Issue

On the second trial date, Mr. M. Hussein appeared as legal representative for the Applicant. From the transcript of the proceedings on the second trial date, it does not appear that the Applicant was present in person, since he did not accompany Mr. Hussein to the dais when the matter was called.

[7] Second Trial Date - Further Adjournment

Mr. Hussein informed the court that on October 22nd he had requested disclosure, which was acknowledged by the prosecutor, Mr. Pugh. The charging Officer was in court, and Mr. Pugh advised Mr. Hussein that the disclosure would be provided there and then. Mr. Hussein accepted the disclosure of the Officer's notes, and requested an adjournment for the trial. The court granted the motion, and the matter was adjourned to May 18th 2012 for trial ("the third trial date").

[8] Overall Delay Assessment

On its face the overall period of delay is 20 months and 7 days, which appears excessive, and consequently it requires examination and analysis.

Analysis Under Morin Guidelines

[9] Morin Framework

In R. v. Morin, [1992] 1 S.C.R. 771, the Supreme Court of Canada provided the guidelines to be considered when analyzing the overall period of delay. Those 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, and
   • 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 Length of the Delay

a) In his Motion the Applicant states that the overall period of delay is 20 months and 7 days. This period needs to be examined in light of the guidelines set out in Morin (supra).

b) As the Ontario Court of Appeal held in R. v. Herrington, [2003] O.J. No. 4754:

"What constitutes an acceptable period of systemic or institutional delay will vary depending on the nature and the circumstances of each case. There are no fixed or inflexible time limits."

c) And in R. v. Kovacs-Tatar, [2004] O.J. No. 4756 the Ontario Court of Appeal reiterated its ruling in Herrington (supra) as follows:

"The guidelines [set out in Morin] should not be given the force of a judicially developed limitation period."

d) Further, in R. v. Galassi, [2005] O.J. No. 3764, the Ontario Court of Appeal held that there must be some recognition of the nature of the case, stating:

"The guidelines set out in the Supreme Court for institutional or systemic delay….in the Ontario Court of Justice is 8 to 10 months, a period of time that only begins to run after the intake period."

e) 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.) in a relatively straightforward Highway Traffic case. I believe that this is a more reasonable period than the 30 to 45 days suggested by the court in R. v. Andrade, 2011 ONCJ 470, [2011] O.J. No. 4245, particularly in light of the following jurisprudence:

f) In Galassi (supra) some seven years ago:

"In my view, reviewing courts should be very cautious about judging the advisability of steps taken by the Ontario Court of Justice to manage its lists. That court has seen a huge increase in its caseload…."

g) In R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 the Supreme Court was concerned with the jurisdiction of the Provincial Offences Court to grant remedies under s. 24(1) of the Canadian Charter of Rights and Freedoms. McLachlin C.J.C. said the following at paragraph 38:

"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."

h) I do take notice of the fact that Provincial Offences Courts in the Greater Toronto Area have seen a dramatic increase in their lists and workloads in the 20 or so years since the decisions of the Supreme Court in R. v. Askov, [1990] 2 S.C.R. 168 and Morin (supra). In all likelihood, this is largely because of the tremendous influx of new immigrants into the Toronto region during that period. In this regard, the Ontario Court of Appeal in R. v. Kovacs-Tatar, [2004] O.J. No. 4756, quoted the following dictum of Arbour J.A. in R. v. Bennett 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."

i) 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 2012.

j) For these reasons I am satisfied that in this day and age, an intake period of at least 2 months is required in the calculation of the delay in the Toronto Region of the Ontario Provincial Offences Courts.

[11] Deduction of Intake Period

Accordingly, I will deduct 2 months from the 20 months and 7 days of total delay, leaving 18 months and 7 days.

[12] The Actions of the Applicant

a) On the first trial date the Applicant's agent requested an adjournment because the Applicant was ill and bed ridden. The matter was adjourned to the second trial date, which is a delay of 5 months and 21 days. Since the Prosecution was ready to proceed on the first trial date and the Applicant was not, I attribute this period of delay to the Applicant.

b) Accordingly, I deduct 5 months and 21 days from the 18 months and 7 days delay remaining after the deduction of the intake period, leaving a period of 12 months and 17 days.

c) On the second trial date the Prosecution was again ready to proceed with the trial. However, the agent then appearing for the Applicant, Mr. Hussein, informed the court that the Applicant was not ready to proceed because the disclosure requested on October 22nd 2011 was only being made available to the Applicant at the time of the second trial date. It seems to me from reading the transcript of the proceedings on the second trial date that the Applicant was not present personally at that hearing. At the request of Mr. Hussein, the matter was adjourned to May 18th 2012 for trial, resulting in a further delay of 5 months and 2 days.

d) It is noteworthy that Mr. Hussein did not request an earlier date than May 18th 2012 nor was one requested on behalf of the Applicant at any time thereafter.

e) In R. v. Hoffman and Aboushaka, [2006] O.J. No. 5162, Cavion J. of the Ontario Court of Justice, sitting as a court of appeal held that in routine matters, the disclosure obligation of the prosecutor can be met by providing it to the defendant's agent on the trial date. The learned judge found that where one police officer saw the offence, it would have taken the defendant's agent a minute or two to review the officer's notes on the trial date.

f) In the case at bar on the second trial date Mr. Hussein requested that the matter be adjourned for trial in order to review the officer's notes with his client. Consequently, it follows that the applicant was not ready for trial on the second trial date so that the case was adjourned to the third trial date of May 18th 2012.

g) Inherent time requirements encompass time taken to get the case to the point where both parties are ready for trial. See: R. v. Cranston, 2008 ONCA 751, [2008] O.J. No. 4414.

h) On the second trial date the matter was adjourned at the request of the Applicant's agent without expressing any concern in regard to the time period until the third trial date. In all likelihood, the May 18th 2012 date was the earliest date available to the officer and the court, and Mr. Hussein readily agreed to that date on behalf of the Applicant. Consequently, I find that this period of delay from the second trial date to the third trial date is neutral time. See R. v. Allen (1996), 110 C.C.C. (3d) 331. In the O.C.A. case, Doherty J.A. wrote:

"No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around one case, but must try to accommodate the needs of all cases. When a case requires additional court resources, the system cannot be expected to push other cases to the side and instantaneously provide those additional resources."

i) Having found the delay of 5 months and 2 days from the second trial date to the third trial date to be neutral, this period must be deducted from the balance of the overall period of delay which I calculated earlier in these reasons.

[13] Ruling

For the reasons which I have given, I deduct 5 months and 2 days from 12 months and 17 days, resulting in a delay, for section 11(b) purposes, of 7 months and 15 days. This period of delay is well within the guidelines established by the Supreme Court of Canada in Morin (supra), and requires no further enquiry. The motion to stay the proceedings is therefore denied.

P. Kowarsky Justice of the Peace

June 19th 2012