Court Information

Part I Certificate Number: 4521619A

Court File No.: Mississauga 3161 999 00 4521619A-00

Ontario Court of Justice

Provincial Offences Court – Mississauga, Ontario

Parties

Between:

Her Majesty The Queen

And:

Jessica Jair

Application

Application Under Subsections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms

Judicial Officer and Counsel

Before: Justice of the Peace Mangesh S. Duggal

Charter Application Heard: February 22, 2013

Reasons for Judgment Released: March 7, 2013

Counsel:

• V. Pankou, for the Prosecutor
• J. Jair, Self-Represented Defendant

Statutes, Regulations and Rules Cited

• Canadian Charter of Rights and Freedoms, 1982, R.S.C., App. II, No. 44, Schedule B, ss. 11(b) and ss. 24(1)
• Highway Traffic Act, R.S.O., c. H.8, as amended February 9th, 2011, s. 158(1)
• Provincial Offences Act, R.S.O. 1990, c. P.33, as amended to February 9, 2011 Part I

Cases Cited

• Regina ex rel. City of Toronto v. Andrade, 2011 ONCJ 470
• R. v. Askov et al., [1990] 2 S.C.R. 1199
• R. v. Morin, [1992] 1 S.C.R. 771
• R. v. Szewczyk, 2012 ONCJ 680
• R. v. Syed Khan (unreported – Jan. 27, 2011 – Halton Prov. Offences Office – File No. 95128045)
• R v. Omarzadah, [2004] O.J. No. 2212 (Ont.C.A)
• R. v. Panko, [2007] O.J. No. 1867, 2007 ONCJ 212

Introduction

[1] Ms. Jessica Jair was charged on December 5, 2011 with Follow Too Closely, contrary to section 158(1) of the Highway Traffic Act. The charge is a Part I certificate under the Highway Traffic Act (hereafter HTA). The offence certificate was filed in the Provincial Offence Court on Dec. 11, 2011. Ms. Jair requested a First Attendance meeting on December 5, 2011 and a Notice of Trial to have the officer present and give evidence. Administratively, Ms. Jair was sent a Notice of First Attendance on December 6, 2012 for May 1, 2012.

[2] Ms. Jair had a First Attendance meeting on May 1, 2012. The matter could not be resolved. A Notice of Trial was mailed on May 2, 2012 from the Mississauga Provincial Offences Office setting the matter for trial for December 10, 2012.

[3] On the day of trial, December 10, 2012, Ms. Jair attended for trial. The Prosecution was represented by Ms. Dunlop. On December 10, the section number of the HTA was missing on the certificate; the Prosecution asked the certificate to be amended. Ms. Jair was provided with a copy of the Annotated Provincial Offences Act (hereafter POA) and asked whether she agreed to the certificate being amended. Time was required for Ms. Jair to review the POA. Ms. Jair agreed to the amendment. The option of adjourning the matter was put to the defendant but she preferred to proceed.

[4] The Court canvassed whether Ms. Jair, the self-represented party, had received all the disclosure. It was discovered that in fact, Ms. Jair did not get complete disclosure and the matter was adjourned to Feb. 22, 2013 for trial.

[5] On January 25, 2013, Ms. Jair filed an 11(B) Charter motion arguing that the overall delay of 14 months was excessive for a minor provincial offence. The offence involves an accident with one officer and one or possibly two civilians testifying for the Prosecution. Ms. Jair claimed stress and the additional prejudice of having to take time off work to file the necessary paperwork.

[6] On February 22, 2012, the following issues were addressed. Argument took up about 1.5 hours. Argument was made on the 11(b) motion and the matter is set for judgment. If the stay is not granted, the trial is set to resume on May 27, 2013. Ms. Jair was available on any day for continuation. The police officer was not available on May 7, 2013.

Position of Parties

[7] The Prosecution argues Ms. Jair has waived about 5 months from December, 2011 to May, 2012 in requesting the first attendance meeting. The Notice of Trial was issued May 2, 2012. Ms. Jair received disclosure in September, 2012. The Prosecution argues the time from May to August is neutral or inherent time as that is when disclosure was provided. The Prosecution argues that from September to December, 2011 is institutional delay. The Prosecution concedes that is responsible for the periods from Dec. 10 to Feb. 22, 2012.

[8] Ms. Jair advised the Court that you can't receive disclosure until a trial date is set, that she wanted to set both a trial and an Early Resolution Meeting at the same time.

Overview of Charter Rights – Section 11(b)

[9] Section 11(b) of the Canadian Charter of Rights and Freedoms (Charter) states that anyone charged with an offence has the right to be tried within a reasonable time. Section 24(1) of the Charter states that anyone whose rights and 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.

[10] The 11(b) analysis is case specific and not a forum for assignment of blame. Nor is it the opportunity to engage in a microscopic analysis of the prosecution's conduct. Rather, it is important to look at the whole picture broadly and purposively. See R. v. Andrade, supra at paragraphs 19-21, citing R. v. Schertzer, 2009 ONCA 742 at paragraph 5 and R. v. Godin, 2009 SCC 26, 2009 2 S.C.R. 3, S.C.C. at para. 18.

[11] The Section 11(b) analysis seeks to protect the individual's rights of an accused person and the collective public interest, the societal interests of the community.

[12] The following issues require analysis:

1. Length of the delay
2. Waiver of time periods
3. Reasons for Delay
   • 3A) Inherent Time Requirements
   • 3B) Actions of Accused
   • 3C) Actions of Crown
4. Limits on Institutional Resources
5. Prejudice

Length of Delay

[13] This Part I Certificate was filed on December 6, 2011. The 11(b) Application was heard on February 22, 2013. That is a period of 14 months and seventeen days and justifies further analysis.

Waiver of Time Periods

[14] The Prosecution argues Ms. Jair waived the period of time from December 6, 2012 to May 5, 2012 by requesting an Early Resolution meeting. The following facts are noteworthy. Ms. Jair did not receive disclosure at the time of the Early Resolution request nor had she received disclosure on the date of the early resolution meeting of May 1, 2012. At no time was there ever an explicit, unequivocal, informed waiver of her right to a speedy trial. Her actions in setting the trial date were diligent – it should be noted that Ms. Jair filed the Intention to Appear prior to the date of the Certificate of Offence being filed with the Court. After the unsuccessful resolution meeting, Ms. Jair filed a request for a trial on May 2, 2012.

[15] The Prosecution relies on R. v. Szewczyk, 2012 ONCJ as authority that Ms. Jair waived her right to a speedy trial by requesting an early resolution meeting. However, the facts in Szewczyk, supra, at paragraphs 20-21, are distinguishable. Mr. Szewczyk failed to attend and adjourned the First Resolution Meeting. Ms. Jair attended the Early Resolution meeting on the date and time specified in the Early Resolution Notice.

[16] In Andrade, supra at paragraph 34, Justice Libman notes two of the competing dynamics at play in determining 11(b) applications in the context of minor Part I offences under the Provincial Offences Act. A statutory premium is placed on speed and efficiency. Justice Libman stated:

On one hand, the short time lines under Part I of the Provincial Offences Act serve to place a premium on speedy justice: the defendant, as noted previously, has 15 days to respond to his/her ticket; additionally he/she is given 15 days to appear before a justice upon becoming aware of a conviction without a hearing, in order to seek a re-opening and have a trial on the merits (s. 11(1)); a certificate of offence issued by a police officer must be filed in the court office "as soon as is practicable", a period of which is not to be later than seven days after service of the offence notice or summons (s. 4); and the clerk of the court is required to provide notice of trial to the defendant and prosecutor "as soon as is practicable" following the defendant's filing of his/her notice to appear in court for trial (s. 5(2)).

[17] Conversely, the Provincial Offences courts are among the busiest courts in Ontario. Chief Justice Bonkalo, in her Opening Speech in September, 2010, noted there were 600,000 criminal charges brought in comparison to over 2 million provincial and highway charges. See Andrade, supra, at paragraph 35.

[18] There is no evidence that Ms. Jair had any input in setting the May resolution date. Justice Libman in Andrade, supra, at paragraphs 58 that an intake period of 30 to 45 days was consistent with a Part I ticket infractions. A lengthier period of 60 days was recognized as an Intake period where the defendant has some input in setting the trial date.

[19] Ms. Penkow argued that the 5 month delay for the Early Resolution Meeting rests at Ms. Jair's feet. I do not agree with that argument. In Andrade, supra, at paragraph 58, Justice Libman noted that:

While the City may consider that if a defendant finds the date or time of day given for trial to be inconvenient, an adjournment request can be arranged, this is not the approach adopted for police witnesses, and I do not therefore consider this to be an even-handed way of scheduling trials, particularly for the growing number of unrepresented defendants who may lack the means or understanding of how to change their assigned trial date, and are given no instructions in the notice of trial as to how to do so. Stated shortly, a delay caused by an unfair practice or procedure cannot be reasonable within the meaning of s. 11(b) of the Charter.

[20] Ms. Penkow cited the case of R. v. Syed Khan (unreported – Jan. 27, 2011 – Halton Prov. Offences Office – File No. 95128045) which is noted at paragraphs 70 to 74 of the Szewczyk decision. In Khan, supra, referred to in Szewczyk, at paragraph 72, Justice Zisman concluded that if a self-represented defendant was unhappy with how long an early resolution meeting was taking, she could always cancel the resolution meeting and proceed straight to trial. By accepting an early resolution meeting, there was an implicit waiver by a self-represented defendant.

[21] Where the Khan and Andrade decisions are in conflict, I prefer Justice Libman's analysis. With respect to the Intake Period, Justice Libman was working on an evidentiary basis and heard evidence from a court manager on how trial matters are scheduled. Second, there was a comparative jurisdictional analysis of Intake periods throughout Ontario. Finally, Justice Libman referred to the recommendations of the Law Reform Commission and the specific concerns in which dates are set involving self-represented persons. See Andrade, supra at paragraphs 58 to 61.

[22] I have assigned 90 days, or three months, as neutral Intake period to the period from December 6, 2011 to March 6, 2012. I assign 60 days or two months to Limits on Institutional Resources in relation to the period from March 6, 2012 to May 6, 2012.

Inherent Time Requirements

[23] As I have noted, the inherent time requirements of this case involved an Early Resolution Meeting on May 1, 2012. After the unsuccessful Early Resolution meeting, a Notice of Trial was sent setting out a December 10, 2012 date on May 2, 2012.

[24] In terms of complexity, this was a Part I offence under the POA with an accident. I would describe it as a pretty standard accident Part I offence. One to two civilian witnesses were required for the Prosecution. The disclosure did not appear complex or overwhelming – it consisted of about six pages of a police officer's notes and an Accident Report.

[25] The Court administration set a trial date only one day after the Early Resolution Meeting and acted with some alacrity. However, the trial was set for December 10, 2012, some seven months later. I ascribe the period from May to December as institutional in nature.

Actions of Accused; Actions of Prosecution

[26] On December 10, 2012, the section number was missing on the Certificate. The Prosecution sought an amendment to include the section number. Ms. Jair and Ms. Dunlop made arguments. Ms. Jair was provided with an annotated copy of the POA. After some time, Ms. Jair agreed to the certificate being amended.

[27] After arraignment, it was discovered that there were 2 pages of the police officer's notes were missing. The missing pages were copied and provided to Ms. Jair and the matter was adjourned to February 22, 2013 so that she could prepare.

[28] The Prosecution motion to amend the certificate resulted in valuable court time being spent on the Pre-Trial motion. In addition, the failure to provide timely disclosure resulted in the matter being adjourned to February 22, 2013.

[29] On February 22, 2013, both the Prosecution and Defendant argued the merits of the 11(b) application. The Court decided it would give its decision on March 7, 2013. However, a trial date was set for May 24, 2013. An earlier date around May 7, 2013 was offered but the officer was not available. Ms. Jair was ready to continue the trial at any time from February 22, 2013 to the May, 2013 dates.

Limits on Institutional Resources

[30] As Justice Libman noted in Andrade at paragraph 82:

Limits on institutional resources is the major cause of delay in both cases and indeed in most provincial offences Part I proceedings. As stated in Morin, institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11(b) of the Charter (para. 47). It is defined as the time when the parties are ready for trial but the system cannot accommodate them. Systemic or institutional delays are attributable to the Crown in that such delay cannot be relied upon by the Crown to excuse delay; given the fundamental importance of the right to be tried within a reasonable time, the lack of institutional resources cannot be used to justify delays.

[31] The Supreme Court in R. v. Morin, [1992] 1 S.C.R. 771 provided an administrative guideline for institutional delay of between 8 to 10 months with respect to bringing a matter to trial in the Provincial Court. In R v. Omarzadah, [2004] O.J. No. 2212 (Ont.C.A), Justice Doherty applied the Morin guidelines but noted that it did not apply as strictly to provincial offences.

[32] The Prosecution's position is that the period from May 5th, 2012 to September 19, 2012 is neutral time as that is when Ms. Jair was provided with disclosure and would have then been ready for trial.

[33] I disagree with that submission. In criminal matters, the Intake period is the time bail issues are resolved, disclosure is provided, and an accused person retains counsel. That intake period is usually around 90 days. In this case, Ms. Jair was representing herself and disclosure could only be provided after a trial date was set. To attribute the period from May to September as Intake is to confuse the two types of proceedings. Had this been a Part III Information, under the POA, where for example, a person would attend court and receive disclosure, then Ms. Penkow's submission would carry some weight.

[34] I ascribe the period from May 2, 2012 to December 10, 2012 as institutional in nature. That is a period of 7 months and 8 days.

[35] The institutional delay in this matter totals 9 months and 8 days; two months relates to the period from March 5, 2011 to May 1, 2012. Seven months relates to the time required to set the trial date from May 2, 2012 to December 10, 2012.

[36] The period from December 10, 2012 (first trial date) to February 22, 2013 (second trial date) amounts to 2 months and thirteen days and is attributable to the actions of the Prosecution.

[37] The total delay attributable to institutional delay and the actions of the Crown amounts to 11.5 months.

Prejudice

[38] Ms. Jair in her Notice of Constitutional Question claimed immense stress and anxiety. By way of submissions, she further argued that she had to take time off work to file the notice of Constitutional Question. As Justice Trotter noted in R v Panko, 2007 ONCJ 212, [2007] O.J. No. 1867 at paragraph 16:

To be of any value, the actual prejudice (e.g., pre-trial custody, strict bail conditions, lost employment opportunities, financial hardship, specific relationship repercussions, medical conditions etc.) must be specifically pleaded in order for a judge to engage in a meaningful evaluation of this important aspect of the 11(b) framework.

[39] I find that the claim of stress is minimal at best.

Balancing the Competing Factors

[40] In deciding whether to grant a stay, I must balance the societal interest in seeing that persons charged with offences are brought to trial against the accused right to "prompt adjudication". I must in the final analysis determine that the interests of both Ms. Jair and society in a prompt trial outweigh the interests of society in bringing Ms. Jair to trial. See Morin, supra at paragraph 87.

[41] The Court notes that there is minimal prejudice to Ms. Jair. That minimal prejudice must be balanced against the public interest in a fair, efficient and timely process for bringing such matters to trial.

[42] Conversely, these charges are not overly complex and subject to Charter review. The hallmark of Part I provincial offences ought to be speed and efficiency. The total delay exceeds the administrative guideline period.

[43] Balancing all of the factors in this case, I have reached the conclusion that Ms. Jair's rights under s. 11(b) of the Charter were infringed and that her rights and society's rights to a prompt trial outweigh the societal interests in bringing accused persons to trial. Accordingly, I stay the proceedings under s. 24(1).

Dated this 7th day of March, 2013

H.W. Mangesh S. Duggal Justice of the Peace