Court Information

Information No.: 41565

Ontario Court of Justice Toronto Region

Between: Her Majesty The Queen

-and-

1762432 Ontario Inc. (c.o.b. The Painted Lady)

Interim Decision on Charter Motion

Heard: December 20, 2011 and January 19, 2012

Decision: February 15, 2012

Before: Her Worship Mary A. Ross Hendriks

Counsel:

• Mr. L Sabsay, Defence counsel
• Ms. E. Luca, Crown counsel, City of Toronto

Introduction

[1] The accused is 1762432 Ontario Inc., a numbered company that carries on business as "The Painted Lady" ("the accused"). The Information before the court, laid pursuant to section 23 of the Provincial Offences Act ("POA"), alleges that on September 18, 2010, the company "did carry on the business, trade or occupation of an owner of an entertainment establishment/night club without having the necessary license, so to do," contrary to Chapter 545 of the City of Toronto Municipal Code (as amended), s. 545-2A (65).

[2] Prior to entering a plea, defence counsel brought a motion for a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms ("the Charter") on the ground that the accused's right to be tried within a reasonable time as secured by section 11(b) of the Charter has been infringed.

[3] Crown counsel opposes this motion seeking a stay of proceedings. Both parties have filed case law with the court, and made oral arguments on January 19, 2012. From the beginning, defence counsel has also provided the court with transcripts of the proceedings held on December 13, 2010, January 11, 2011, January 25, 2011, April 4, 2011, and June 13, 2011; a Factum, as well as an Affidavit from counsel's assistant, Rong Wei Yu.

[4] At the outset of this motion, on December 20, 2011, Crown counsel argued that defence counsel had failed to serve the Attorney General of Ontario with a copy of this motion record. She argued that since the service of the motion record was defective, and that the trial ought to commence. Defence counsel relied on the Criminal Proceedings Rules, and argued that only the Prosecutor needed to be served. The Prosecutor relied upon section 109 of the Courts of Justice Act ("CJA"), and argued that both needed to be served.

[5] I suggested a short recess, and invited defence counsel to go back to his nearby office and put the Criminal Proceedings Rules before the court, since he had not brought a copy with him and I was not familiar with the relevant provision, which he did.

[6] During this recess, I found and printed a headnote from the Ontario Court of Justice's internal "Items of Interest," [2011] 23C Items Extra – December 19, 2011, which referred to the Ontario Court of Appeal's recent decision in R. v. Vellone, (December 14) 2011 ONCA 785. I gave both counsel a copy of this headnote, which states:

CHARTER OF RIGHTS – Procedure – Notice of constitutional question – Section 109 Courts of Justice Act requires a party who wishes to claim a remedy under s.24(1) of the Charter to file a notice of constitutional question with the federal and provincial Attorneys General – This applies to proceedings under the Provincial Offences Act by virtue of s.95(3) Courts of Justice Act – Section 32 of the Charter states that the Charter applies to the federal and provincial governments – The Supreme Court of Canada has consistently held that "government" in s.32(1) includes municipal governments – It would not make sense to say that s.32 of the Charter includes municipal action but s.109 CJA does not – People in the position of the defendant are required to notify the provincial Attorney General of an 11(b) Charter challenge pursuant to s.109 CJA – Court declined to rule on claim that s.109 also required defendant to provide notice to municipal prosecutor, but noted recommendation of Law Commission of Ontario in its interim report on modernizing the POA that the CJA be amended to require notice to prosecutors, including municipal prosecutors, when relief is sought for an act or omission of a municipality.

[7] Further, I read paragraph 25 of the Vellone decision into the record, since I found it was directly on point:

Within this legislative and contractual matrix, the component of s.109 of the CJA requiring people in the position of Mr. Vellone to notify the Attorney General of Ontario of his s.11(b) Charter challenge serves two important purposes. The notice requirement enables the Government of Ontario to decide whether to exercise its right to take over a case under the POA. The notice requirement also furthers the Government of Ontario's important interest in monitoring the performance of municipalities under the Memoranda of Understanding.

[8] Given that defence counsel's motion was date-stamped December 5, 2011, and the Court of Appeal's decision was released after he had filed his motion, which I found to be determinative of the issue, and in light of his reliance on the Criminal Proceedings Rules, I adjourned the matter to provide him with an opportunity to serve the Attorney General of Ontario.

[9] Prior to adjourning the motion to January 19, 2012, a trial date was also set for March 8, 2012.

Issue

[10] The following issues are relevant in this motion:

(a) Has the accused's right to be tried within a reasonable time been infringed pursuant to s.11(b) of the Charter?

(b) If the answer is yes, has the accused suffered actual prejudice?

(c) If the answer is yes to both questions, what is the appropriate remedy?

Decision

[11] The motion is granted. The accused's right to be tried within a reasonable time has been infringed pursuant to s.11(b) of the Charter. The matter is hereby stayed.

Analysis

The Nature of the Charge

[12] Chapter 545 of the City of Toronto Municipal Code, as amended, establishes the following licensing requirement:

S. 545-2 Licence requirement.

A. There shall be taken out by the following persons a licence from the Municipal Licensing and Standards Division authorizing them respectively to carry on their several trades, businesses, and occupations in the City of Toronto for which licence the person obtaining the same shall pay to the Municipal Licensing and Standards Division at the time of taking out such licence the fee fixed by this chapter, and no person shall, within the City of Toronto, carry on or engage in any of the said trades, businesses or occupations until he or she has procured such licence so to do:

(65) Every owner of an entertainment establishment/nightclub. [Added 2006-02-02 by By-law No.20-2006]

(66)

[13] Chapter 545 of the City of Toronto Municipal Code provides the following definition:

S.545-1 (definitions)

ENTERTAINMENT ESTABLISHMENT/NIGHTCLUB - A premises, including but not limited to a dance hall or disco, used to provide dance facilities for patrons, where seating is not provided for the majority of the patrons and where food or beverage may be offered for sale as an ancillary use.

[Added 2006-02-02 by By-law No.20-2006]

The Chronology of Events

[14] The following is a chronology of this case, based on key documents and transcripts of these proceedings:

(a) Both counsel agree that the case begins the date that an Information was sworn on October 7, 2010, alleging that an offence took place on September 18, 2010;

(b) Both counsel also agree that the summons was returnable on December 13, 2010, at Old City Hall, which was the first appearance date in this matter;

(c) On December 13, 2010, Crown counsel advised defence counsel that disclosure was ready, but that it needed to be vetted, and asked him to put in a disclosure request. The matter was adjourned to January 11, 2011. In final submissions, the Crown conceded that the delay between December 13, 2010 and December 29, 2010 (the date disclosure was available for pick up), was properly Crown delay.

(d) On January 11, 2011, an agent for defence counsel put on the record that since disclosure had been received, they were prepared to set a trial date. At the request of the Crown, a trial date of March 28, 2011 was set. The January 11, 2011 date is meaningful, since both counsel agree that institutional delay commences on this date, and runs until March 28, 2011.

(e) On January 25, 2011, agent for defence counsel spoke to a motion, brought by the defence, to change the trial date from March 28th, because of a time conflict, and asked for a date in early April or mid-April. Crown counsel did not oppose the motion, and a new date of April 4, 2011 was set for trial. During submissions, defence counsel admitted that he was responsible for this one week of delay.

(f) On April 4, 2011, the matter was not reached until 2:45 p.m., and defence counsel asked the court, "Can we start?" However, the presiding justice of the peace did not want to start the trial late in the day and be seized. He suggested a Judicial Pre-Trial ("JPT") would be appropriate, given the length of the case, which was with the agreement of the Crown, but on the objection of defence counsel. A JPT was scheduled for June 7, 2011, with a return date of June 13, 2011, for it "to be spoken to," but no trial date was set, over the objection of defence counsel.

(g) On June 13, 2011, agent for defence counsel spoke to the record, noting that a JPT had been held. At that time, defence counsel was offered trial dates of June 28 or 29, 2011, but he was not available. The Crown noted that the matter had been up for trial twice, which was confirmed by the clerk of the court, who said, "To be spoken to today, but it's been up for trial twice." The Crown noted that the matter was expected to take a full day, including the Charter motion, and that, "The next date for which court was available for a full day trial, and Mr. Sabsay is available, is December 20th..."

[15] Defence counsel argues strenuously that the period from April 4 to December 20, 2011 should all be characterized as institutional delay. The Crown objects to this, and argues that the period related to the JPT should be considered to be neutral delay. These arguments are analyzed below.

[16] From the date that the charge was laid, to December 20, 2011, was 15 months. From the date that the charge was laid to the ultimate trial date is 17 months, but there is a serious dispute between the parties as how to characterize the time from December 20, 2011 to February 15, 2012, which is analyzed below in detail.

[17] In final submissions, defence counsel admits that he is responsible for the one week delay in March 2011, plus another few weeks of delay in December, and suggests that his share of delay should equal one month.

The Law

[18] It is settled law that the court must consider: the overall length of the delay between the laying of the charges and the end of the trial; whether the accused has waived any of the delay; the reasons for the delay; and prejudice to the accused. See: R. v. Tran 2012 ONCA 18, at para. 20.

[19] Once these four factors have been assessed, the court must determine whether the length of the delay is unreasonable having regard to the interests of the accused and the societal interests that section 11(b) seeks to protect, the explanation for the delay, and the prejudice to the accused. See: Tran, supra, at para. 24, relying on Morin at pp.786-803.

[20] The first factor, the overall length of the delay, is at issue in this matter, since it has taken 17 months from the date that the charge was laid to the scheduled trial date. The issue, then, is the reasonableness of the delay.

[21] The analysis follows the third and fourth factors in Morin, being the reasons for the delay and the prejudice to the accused, and the necessary balancing of the company's interests under s.11(b).

The Intake Period

[22] The higher courts have indicated that an intake period of two months is acceptable for cases that are not complex. It has been characterized as an "inherent time requirement" in Tran, supra, at para. 62, and as noted by Justice Libman in R. v. Andrade, 2011 ONCJ 470, at para. 88. Justice Code also made reference to "the neutral intake period" of two months for summary conviction drinking and driving cases (including Morin, supra, and R. v. Meisner (2003), 57 W.C.B. (2d) 477 at para.30-32), as compared with a neutral intake period of over eleven months in a very complex multiple accused police corruption case (R. v. Schertzer et al (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 at para. 77-80), in his decision in R. v. Lahiry, 2011 ONSC 6780, at paragraphs 19-24.

[23] I find that two months is an appropriate period for neutral intake in this case. However, the two month intake period would have taken the parties to December 13, 2010. The Crown concedes the time between December 13 and December 29, 2010 was Crown delay. Based on the evidence, I find that the delay after December 29, 2010 until March 28, 2011 was institutional delay. The delay from March 28, 2011 to April 4, 2011 was defence delay, as conceded by counsel.

The Judicial Pre-Trial Period

[24] The events of April 4, 2011 are important, because they reflect both the desirability of holding a JPT, which was a new and important practice at the time for POA matters, as permitted in the amendment to the POA in s.45.1(1); and the practical reality that the court was running out of time to commence a trial.

[25] The time associated with JPTs has been held to be part of the inherent time requirements of the case, see: R. v. Lahiry, supra, at para. 116, citing R. v. Khan, at paras. 44-55; and see: R. v. Tran, supra, at para. 34, where Simmons, J.A. held:

...it seems to me that requiring a judicial pre-trial to set the trial date(s) is a reasonable and necessary case management tool in busy judicial centres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in presentation of their cases. Accordingly, some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case.

[26] Thus, the time for JPTs is normally allotted as neutral delay. However, it was clear from the transcript of April 4, 2011, that defence counsel was ready to proceed, as was the Crown, and that the court had run out of time. Since the cause of the April 4, 2011 adjournment was attributable to both neutral and institutional delay, I find that the time from April 4, 2011 until June 13, 2011 is institutional delay.

Unavailability of Defence Counsel on Next Available Date

[27] It should be noted that on June 13, 2011, the court date immediately following the JPT, defence counsel was not available on the next available court date. The trial date was set for December 20, 2011. The fact that defence counsel was not immediately available does not constitute waiver. As the Supreme Court of Canada noted in R. v. Godin, 2009 SCC 26, at para. 23:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s.11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry – efforts which were ignored – suggests that he wished to proceed expeditiously...

[28] In Lahiry, supra, at para 40, in obiter dicta, the court considered whether or not the s.11(b) motion brought had contributed to some of the scheduling delay, and was in essence "bootstrapping." However, in this case, there had been several court appearances prior to the 11(b) motion, and as a practical matter, I find that defence counsel has not engaged in such practice.

[29] Thus, I find that the time between June 13, 2011 and December 20, 2011 was also institutional delay.

Impact of Court of Appeal Decision

[30] Finally, the period of time between December 20, 2011 and the scheduled trial date of March 8, 2012 is neutral, since the adjournment was the result of the issuance of a definitive decision by the Court of Appeal with respect to service of the Attorney General of Ontario with a motion under s.11(b) of the Charter, since the prior case law was in conflict, see: R. v. DeCaro [2001] O.J. No.3166 and R v. Dickson [2004] O.J. No.4710; but see: R. v. Vellone, 2009 ONCJ 150. This conflict was not resolved until R.v. Vellone reached the Court of Appeal. Moreover, s.109 of the Courts of Justice Act also appears to operate in conflict with the Rules of Criminal Procedure on this point, but I am satisfied that the Court of Appeal's recent ruling in R.v. Vellone is finally determinative.

[31] For these reasons, the following is an allocation of responsibility for the relevant time periods, from October 7, 2010 to March 8, 2012:

• Crown delay is 16 days, as conceded
• Defence delay is one month, as conceded
• Neutral delay is 2 months, 5 days plus 2 months, 18 days, which equals 4 months, 23 days
• Institutional delay is 3 months, plus 8 months, 16 days, which equals 11 months, 16 days

Therefore, the relevant delay is Crown delay plus institutional delay, which is 12 months in total.

[32] As the Court of Appeal held in Tran, at paragraph 63:

The Morin guideline for delay in the Ontario Court of Justice is eight to ten months. However, the guideline is just that: a guideline, not a limitation period. Deviations of several months in either direction can be justified by the presence or absence of prejudice: Morin, at p.807.

[33] The Court of Appeal has established in Tran, at para.64, that the seriousness of the charges, e.g. commercial trafficking in marijuana and a hydro bypass in a residential area, are a consideration that the court should weigh when assessing the period of Crown/institutional delay. Complexity was also found to justify lengthy periods of neutral delay based upon the inherent requirements of a "mega prosecution," involving 100 individuals linked to a gang, in R. v. Khan 2011 ONCA 173.

[34] The case before me is neither a complex case, nor a case that involves serious charges. It is a routine Part III POA charge. The Crown anticipates calling the inspector, and the defence anticipates calling two employees as witnesses. The trial itself is expected to last a half-day, but the matter required a full day for scheduling purposes, because of the s.11(b) motion, preceding the trial.

[35] I note Justice Libman's finding in Andrade, supra, at para. 84, that the "...constitutionally tolerable period of institutional or systemic delay in the Toronto Region for the type of minor Part I provincial offences cases in question as being between 8 and 9 months." Again, Justice Libman stated in para. 73 of Andrade, that 8 to 9 months was the "constitutionally tolerable limit of systemic or institutional delay. I see no reason to adjust this administrative range upward or downward for the provincial offences charges in question, having regard to the fact that they consist, essentially, of a one witness prosecution, and involve simple and uncomplicated issues..."

[36] From the City's perspective, this case is more important than a Part I speeding matter, although agreeably less complex than a criminal matter. The Crown asserts that this case is more complex than just "counting chairs," and notes that the maximum fine for this offence is $50,000, with no minimum fine imposed. Moreover, the court has the discretion to consider imposing additional orders, which can include curtailing the operations of the business itself.

[37] I accept the Crown's submission that a routine Part III offence is held to a higher standard than a Part I speeding offence. Certainly, the penalties are much greater. Moreover, most simple speeding cases involve only the officer who laid the charge and the accused. Part I speeding is an absolute liability offence, and the proof offered by the Prosecution is very technical in nature, e.g. laser or radar device readings.

[38] For a routine Part III offence, such as this case, I find that an acceptable period of institutional delay is at the high end of the Morin guidelines, which is 10 months, rather than 8 or 9 months as Justice Libman found for a Part I speeding matter.

Prejudice

[39] Corporations are included within the meaning of "Any person charged with an offence," in the context of s.11(b) of the Charter, see: R. v. C.I.P. Inc, [1992] 1 S.C.R. 843, at para.37. Thus, a corporation charged with a regulatory offence under the POA had the right to bring a motion under s.11(b), but the prejudice to the accused needed to be actual prejudice caused by the delay, see para. 50.

[40] The affidavit of Rong Wei Yu, legal assistant to defence counsel, sworn on December 5, 2011, states as follows in paragraphs 11-12:

I have been advised by one of the principals of the applicant, Nicolette Potter, and do verily believe it to be true, that the inordinate delay in this case has made it difficult for an employee to remember specifics of the night in question. The applicant had planned to call this employee as a witness in addition to testifying herself. This has impaired the applicant's ability to properly defend against the said charge.

I am further advised by Nicolette Potter, and believe it to be true, that the applicant has wanted to bring the appropriate applications to expand The Painted Lady for some time. However, from a business perspective, the applicant deems it inappropriate to apply for the necessary permission to add space to the restaurant while the said charge is still pending before the Court. This has resulted in a delay of over a year in the applicant's desired business plans.

[41] As noted by Justice Cory in R.v. Askov, [1990] 2 S.C.R. 1199 at p.1220, "memories fade with time." In order to mount a defence of this charge, the recollection of this employee regarding the seating arrangements and lay-out of the premise is important evidence at this trial, although presumably, Ms. Potter could still testify adequately.

[42] The defence has the protection of case law such as Morin and Askov to meet the challenge of fading memories, particularly since the defence only has two witnesses, and one of them is having difficulty recalling the specifics of the night in question. This meets the test of actual prejudice on its face.

[43] I give the evidence that the accused wanted to expand its restaurant no weight, since it has no relevance to this proceeding.

[44] The potential fine for this Part III offence has no minimum, and a maximum of $50,000. In addition, the court has the discretion to make additional orders to achieve compliance with the licensing requirement, and such orders may include the requirement that the business cease operations as a nightclub, for example.

Balancing

[45] Ultimately, the court must decide if the overall length of the delay, which is 17 months, is unreasonable having regard to the interests of the accused, society's interests, the explanation for the delay, and prejudice to the accused, see: Tran, supra, para. 24, citing Morin.

[46] There has been significant institutional delay and neutral delay in this case. It has been caused, in no small part because of the issuance of a pivotal decision from the Court of Appeal immediately after the s.11(b) motion was filed, over which the parties had no control; the introduction of the JPT system for POA matters, designed to reduce time delays; and a shortage of court time to conduct trials. The defence's adjournment, and the Crown's need to vet documents, were both minor delays. Both Crown and defence counsel have conducted themselves appropriately throughout this matter.

[47] Society has an interest in seeing matters proceed to trial, but society also has an interest in ensuring that an accused is able to meet its case without the prejudice of fading memories. The accused faces a significant fine and other possible sanctions detrimental to its business operations if convicted, and on balance, I find that the its' right to go to trial within a reasonable time has been infringed under s.11(b) of the Charter.

Order

[48] Accordingly, for the reasons set out above, I grant the s.11(b) motion and hereby stay the proceeding, pursuant to s.24(1) of the Charter.

Dated the 15th day of February, 2012, at the City of Toronto.

Mary Ross Hendriks, J.P.