Court File and Parties

Ontario Court of Justice

Date: 2014-12-05

Court File No.: CAMBRIDGE 4461 1698527Z

Between:

Her Majesty [Respondent]

— and —

Chanel Maxelon [Applicant/Defendant]

Before: Justice of the Peace J. Ziegler

Heard on: September 19, 2014

Reasons for Judgment released on: December 5, 2014

Counsel:

• Mr. Schmidt — agent/counsel for the prosecution
• Ms. Pitz — agent for the defendant Chanel Maxelon

JUSTICE OF THE PEACE ZIEGLER:

Application for Stay of Proceedings

[1] This is an application by the Defendant for an Order under section 24(1) of the Charter of Rights and Freedoms staying these proceedings by reason of an alleged violation of the Applicant/Defendant's rights under section 11(b) of the Charter of Rights and Freedoms, for delay.

Background Facts

[2] The background facts are simply stated as follows:

a. The Defendant [Maxelon] was charged with speeding in the City of Kitchener on August 31st, 2013 at 3:28 p.m. on HWY 401 (E/B) at the rate of 129 km/h in a posted 100 km/h zone;

b. Maxelon engaged legal representation on September 3rd, 2013 and a notice to appear was filed on her behalf on September 18th, 2013;

c. An early resolution Notice of Meeting was mailed on September 25th administratively setting a resolution meeting date for November 27th 2013 at 3:00 p.m. at which time the resolution was not accepted.

d. A Notice of Trial was administratively sent out on February 3rd 2014 setting a trial date of May 13th 2014 at 9:30 a.m. in court room number 103 at 150 Main St 1st Floor in the City of Cambridge;

e. On April 23rd 2014 the Prosecution served a Notice of Motion on the Defendant's agent to change the date of trial because one of investigating officers was unavailable for the May 13th trial date. This motion was heard on April 30th and granted by Her Worship Magoulas.

f. The transcript indicates that Mr. M. Lawrie appeared for the Defendant on the Motion on April 30, 2014 and stated: "Not opposing the motion Your Worship. Miss Maxelon's only concern would be that her 11.b rights are protected but I think the record would reflect that anyways."

g. The Prosecution represented by Mr. Hyatt stated: "Clearly this is a Prosecution adjournment, yup. The suggested new date is the 19th of September next in this courtroom; 9:30, forty minutes to be set aside please."

h. Mr. Lawrie stated: "That's an agreeable date Your Worship."

i. A certificate of compliance was signed by the parties and handed to the clerk.

j. On August 27th 2014 the defendant's agent Ms. B. Pitz served this application under the Charter of Rights and Freedoms on the Municipal Prosecutor's Office, the Attorney General for Ontario, and the Department of Justice.

Hearing and Procedural History

[3] On September 19th 2014 the Court heard the application for Charter relief, a transcript for April 30th 2014 was filed outlining the application for the longest adjournment, case law was referred to by both the Prosecution and defence and submissions made. I deferred my decision on the Charter Application and was advised that in the event the application was unsuccessful the defendant would not subsequently be seeking a trial on the matter.

The Motion

[4] The Motion asks for a stay of proceedings under section 11(b) stating that at no time did the Defendant waive her rights under section 11(b) and the first available trial date scheduled on April 30, 2014 was September 19th, 2014.

[5] The Applicant claims that the period of time taken from the date of charge August 31st 2013 to the new trial date of September 19th 2014 is excessive and is in contravention of the Applicant's rights to be tried within a reasonable time. The Applicant says this time period from charge to trial is 539 days but my calculations total it to be 384 days in total, not 539.

Analysis of Acquiescence

[6] The complete transcript of April 30th 2014 has no other discussion in respect to there being any other trial dates which were offered or considered; and after Mr. Lawrie states "Miss Maxelon's only concern would be that her 11.b rights are protected but I think the record would reflect that anyways"; his subsequent comments imply the trial date proposed is not a concern in respect to the Applicant's rights when after Mr. Hyatt states the new date is the "19th of September next", Mr. Lawrie replies: "That's an agreeable date Your Worship."

[7] I am of the opinion that had a concern been raised on April 30th by Miss Maxelon's agent that the proposed date of September 19th was too lengthy and had the prosecution refused or been unable to provide an earlier date to reduce the length of the delay, then this motion would have some greater substance to it.

[8] It is my opinion without the concern being raised by the Defence at the time the new date is set in open court on the April 30th motion by the prosecution, that the Defendant misrepresented its intentions by failing to enunciate its concern regarding the length of the delay to the crown/prosecutor and this action led the prosecutor to believe that the defence was in agreement with the adjournment when in actual fact they intended to bring an application because it was too long.

[9] On the basis of the actual consent to the adjournment and the implied consent or agreement to the length of the adjournment, as well as considering the totality of time as a whole to bring this matter to trial, I would dismiss the Defendant's application under section 11(b).

Alternative Analysis: Section 11(b) Framework

[10] If I am wrong concerning the implied consent to the length of the adjournment being an answer to this application, then I will now analyse the time periods further in respect to the standards set by the Constitution and the jurisprudence developed in respect to delay.

[11] Similar to a previous decision made by me [Quan M, 2013], the parties referred to the fundamental case law which established the guidelines and principles for reviewing the circumstances giving rise to relief under a section 11(b) Charter Application, including the seminal cases of R. v. Morin, [1992] 1 S.C.R. 771 and R. v. Askov, [1990] 2 S.C.R. 1199 and some other court decisions were provided, but did not refer to more recent Ontario Court of Appeal and Superior Court decisions which refine the analysis and timelines to be met in light of Askov and Morin, when considering the issue of trial within a reasonable time. The Court has reviewed these relevant and binding decisions on its own in considering what should be done in respect to the Charter Application before it.

[12] I have reviewed R. v. Lahiry; R. v. Carreira; R. v. Davidson; R. v. Shelson, 2011 ONSC 6780, R. v. Steele, 2012 ONSC 383, and R. v. Tran, 2012 ONCA 18 and as a result, I will be basing my decision primarily on the analysis established in the Ontario Court of Appeal decision of R. v. Tran as it sets out a complete analytical framework for analysis of section 11(b) applications and in doing so referred to the considerations raised in Lahiry et al.

[13] R. v. Tran, 2012 ONCA 18, set out a complete analytical framework for section 11(b) applications at paragraphs 20 through 24, and the Standard of Review in the preceding paragraph 19, as follows:

Standard of Review

[19] This court has repeatedly held that the characterization of the various periods of delay on a s. 11(b) Charter application and the ultimate decision concerning whether the delay is unreasonable are reviewed on a standard of correctness. However, the underlying findings of fact are reviewed on the standard of palpable and overriding error: R. v. Schertzer 2009 ONCA 742, 255 O.A.C. 45, at para. 71.

Analytical Framework

[20] The framework for analyzing an application for a stay under s. 11(b) of the Charter is well-established. The court must consider: i) the overall length of the delay between the laying of the charges and the end of the trial; ii) whether the accused has waived any of the delay; iii) the reasons for the delay; and iv) prejudice to the accused.

[21] The first factor, overall length of the delay, is a screening mechanism to determine whether an inquiry into the reasonableness of the delay is warranted. If the overall length of the delay, when considered in the context of all the circumstances (such as whether the accused is in custody), is unexceptional, no inquiry is required. Where an inquiry is warranted, time periods waived by the accused should be deducted from the overall length of the delay before considering the reasons for any remaining delay.

[22] Five considerations come into play when considering the reasons for the delay: a) the inherent time requirements of the case; b) actions of the accused; c) actions of the Crown; d) limits on institutional resources; and e) other reasons for the delay.

[23] One of the two main purposes of s. 11(b) of the Charter is the protection of an accused's rights under the Charter to security of the person, liberty and a fair trial. An accused will suffer actual prejudice where the accused can demonstrate that the delay in bringing a case to trial has impaired one of those rights. Prejudice is inferred where the delay between arrest and trial is simply too long.

[24] Once the 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 s. 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused. See Morin at pp. 786-803.

Application of the Analytical Framework to this Case

[14] Following the guidelines in Tran, where the delay in Tran was 15 months, the overall period of delay being 12 months and 19 days in the present matter makes it undisputable that the delay warrants an inquiry into the reasonableness of the delay. I dealt with my belief that the Defendant acquiesced in the last 4 months of delay when the motion to change the trial date was heard on April 30th resulting in the trial date of May 13th being rescheduled to September 19th 2014; however for the present purpose I am assuming there was no consent or acquiescence in the delay.

[15] Consequently, and once again following the Tran analysis, our focus now is on the third and fourth Morin factors (the reasons for the delay and prejudice to the defendant Maxelon) and the necessary balancing of the interests protected by s. 11(b).

The Facts Giving Rise to the Delay

[16] Maxelon was charged on August 31st 2013 with the aforementioned one count, with an initial requested resolution meeting on filing an appearance notice on September 18th 2013, subsequently administratively set for November 27th 2013.

[17] On November 27th 2013 there was no resolution reached and the matter was subsequently administratively set for trial on May 13th 2014. No issue was raised about the Defendant receiving the appropriate disclosure.

[18] On April 23rd the Crown/Prosecutor served a notice on the Defendant's agent to change the court date as one of its witness officers was not available for Trial on May 13th. This motion was heard on April 30th and the matter was adjourned to September 19th 2014 for trial as outlined in more detail above. On September 19th 2014 this application under the Charter was brought.

Breakdown of Time Periods

[19] The facts are the charge was August 31, 2013, a notice to appear was filed on her behalf September 18th and on September 25th a Resolution hearing was administratively scheduled for November 27th. The time between notice to appear and resolution hearing date is 70 days.

[20] While I find 70 days to be on the long end of the acceptable range, it is in my opinion not excessive nor does it demonstrate a disregard to the Defendant's right to a speedy trial without delay. In fact it is this process which, in most cases, provides an alternative expeditious completion of the matter without trial.

[21] After resolution was not reached it took from November 27th 2013 to May 13th 2014 for a trial date. A period of 167 days.

[22] In my opinion this process should not have taken more than sixty days after the resolution hearing was not successful. I attribute 107 days of this time period to be crown delay.

[23] The Prosecution brought a motion served on April 23rd to be heard on April 30th to adjourn in advance the trial date from May 13th to a different date when both officers could be present. This motion was properly constituted. The Trial date still needed to be within an acceptable time range. A delay from May 13th to September 19th a period of 128 days is excessive, it should not have taken more than 30 days to reschedule this trial and therefore I attribute 98 days of this time period to be crown delay.

Calculation of Crown Delay

[24] My analysis of the time delay in this case is that the matter took 205 days longer to reach than it should have. The total length of time to reach this trial was 384 days, 179 days of which I would rule as inherently necessary; 70 to set up and conduct a resolution meeting and 60 to schedule the first trial date after resolution failed; 30 to set up a second trial date on the crown motion; and the first 19 days for defence to provide a notice to appear.

[25] If we assume the maximum delay attributable to the crown is 205 days, this represents 6.8 months of delay. I believe that 6.8 months of delay does not meet the criteria established by the current jurisprudence in respect to a section 11(b) application.

[26] The Morin case establishes a delay of 8 months or longer as the prerequisite to permitting a stay of proceedings based on excessive delay. The Tran case refines the analysis of what delay is to be attributed to the Crown. In our current case the delay attributed to the Crown reaches a maximum of 6.8 months [assuming a 30 day month].

[27] Therefore, while it took one year and 19 days to reach a trial date in this case, based on my analysis 179 days were inherently necessary, and the actual delay to prejudice the accused is 6.8 months if we assume she did not waive any of the delay.

Prejudice to the Accused

[28] The prejudice to the accused is minimal. This is a quasi-criminal matter which did not result in her arrest, she did not personally appear in Court as she did it through an agent, the penalty is a relatively small fine, although it may impact insurance costs, and the prejudice to the accused is minimal since the evidence in this matter is not affected in any substantial way by the delay given the nature of the charge and the way the evidence is gathered by use of a speed measuring device.

Conclusion

[29] In conclusion, the motion is denied based on my original findings of acquiescence in the adjournment of the trial to a second later date, and if I am wrong in finding acquiescence, I would dismiss the motion based solely on my analysis of the time delay attributable to the crown in respect to the current jurisprudence [R. v. Tran] and my finding of little or no prejudice to the defendant.

Released: December 5, 2014

Signed: "Justice of the Peace J. Ziegler"