Court File and Parties

Ontario Court of Justice

Date: 2017-12-08

Court File No.: Halton 1260-999-00-5213538B-00

In the Matter of: An appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen Respondent

— AND —

Allan Scott Reid Appellant

Before: Justice D.A. Harris

Heard on: October 6, 2017

Reasons for Ruling released on: December 8, 2017

Counsel:

• G. Hume, for the prosecution
• The defendant Allan Reid, on his own behalf

HARRIS J.:

INTRODUCTION

[1] Allan Scott Reid was charged with using a handheld device while driving, contrary to the Highway Traffic Act.

[2] Prior to trial, Mr. Reid brought an application, seeking an order to stay the charge pursuant to the Canadian Charter of Rights and Freedoms on the basis that Mr. Reid's right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter had been infringed.

[3] Justice of the Peace D. Lee dismissed this application.

[4] The appellant was subsequently convicted of the offence.

[5] He appeals against that conviction on the basis that the presiding Justice of the Peace erred in law in dismissing the Charter application.

[6] In assessing the reasons given by the presiding Justice of the Peace, I will simply state that he said a number of things that certainly did not need to be said and to my mind, should not have been said. Further there was no proper analysis of the application before him. His reasons fell far short of providing any basis on which one might determine how he reached his decision.

[7] That was an error in law.

[8] Further, this is just the latest of a number of appeals that have come to me from the presiding Justice of the Peace. His track record is such that I am not prepared to give him the benefit of any doubt with respect to whether he conducted the proper analysis and simply failed to articulate this in his reasons. I do not believe that that happened here.

[9] That does not end this matter however. I am in as good a position as the presiding Justice of the Peace was to properly analyse the application and rule on it and, after doing that, I found that the application was properly dismissed. My reasons for so finding are as follows.

PRE-JORDAN OR POST-JORDAN

[10] On July 8, 2016, the Supreme Court of Canada released its judgment in R. v. Jordan. This has greatly changed the framework for deciding section 11(b) applications.

[11] This decision was released after the presiding Justice of the Peace made his ruling in this case. Mr. Reid argued before me that the new framework is not applicable with respect to Provincial Offences such as the one in this case. Ms. Hume argued to the contrary.

[12] I note that the Supreme Court in R. v. Jordan expressly stated that the new framework applies to cases already in the system although this must be applied contextually and flexibly. Accordingly, I also applied a post-Jordan analysis before deciding to dismiss the application.

[13] Accordingly, my reasons address both frameworks of analysis.

[14] I will deal with my pre-Jordan analysis first.

SECTION 11(b) OF THE CHARTER OF RIGHTS

[15] Section 11(b) of the Canadian Charter of Rights and Freedoms provides that, "Any person charged with an offence has the right to be tried within a reasonable time".

[16] The primary purpose of s.11(b) is to protect the individual rights of the accused to liberty, security of the person and to a fair trial. There is a secondary societal interest in having cases tried on their merits, a matter important to the maintenance of respect for the administration of justice.

[17] This application requires a judicial balancing with an examination of the delay and its evaluation in light of other factors in order to determine whether the delay is reasonable. This balancing requires consideration of:

1. The length of the delay;
2. Waiver of time periods;
3. Reasons for the delay, including
   • (a) inherent time requirements of the case,
   • (b) actions of the accused,
   • (c) actions of the Crown,
   • (d) limits on institutional resources,
   • (e) other reasons for delay; and
4. Prejudice to the accused.

[18] Having made findings about each of these four factors, the final balancing stage of analysis requires consideration of the societal interest in a trial on the merits.

THE LENGTH OF THE DELAY

[19] The total delay in this case was 10 months and 18 days. It is a close call, but I was satisfied that this delay was of sufficient length to warrant judicial inquiry.

[20] Mr. Reid was charged on April 13, 2015.

[21] He requested a trial and this was set administratively for March 3, 2016.

WAIVER OF TIME PERIODS

[22] The onus is on the Crown to prove or establish waiver. A waiver must be clear and unequivocal with full knowledge of the rights the procedure was enacted to protect and of the effect a waiver will have on these rights. The notion of waiver contemplates a choice has been made between available options. Where no real choice or option exists there can be no waiver. Agreement to a date within the proceedings in question does not constitute waiver where the agreement can be reasonably and fairly characterized as mere acquiescence in the inevitable.

[23] It is the duty of the Crown to bring an accused person to trial. This requires that the prosecution apparatus and the government strive to expedite the trial to minimize the effect that is inherent in delay in the disposition of criminal litigation. There is no constitutional imperative upon the accused to bring himself to trial. The protection of section 11(b) of the Charter is not restricted to those who demonstrate a desire for a speedy resolution by asserting the section 11(b) right.

[24] Silence and acquiescence in the face of Crown requests for adjournments or in accepting the trial date that is offered clearly do not constitute a waiver.

[25] I was satisfied that there was no waiver in this case.

REASONS FOR THE DELAY

[26] Mr. Reid faced a simple charge and this should have been a relatively straightforward trial which should not have taken more than 30 minutes.

[27] Having said that, I note that there are certain time requirements inherent in any case. These would include the intake period. This intake process would include such things as obtaining and reviewing disclosure, summonsing witnesses and defence preparation for trial.

[28] I am satisfied that the witnesses could not be summonsed or counsel ready to proceed in less than six weeks. That is when the 11(b) clock would have started. The delay between that date and the trial date was a few days over nine months.

ACTIONS OF THE ACCUSED

[29] As I stated above, it is the duty of the Crown to bring an accused person to trial. There is no constitutional imperative upon the accused to bring himself to trial.

[30] I am satisfied that Mr. Reid did nothing to contribute to any delay in this matter.

ACTIONS OF THE CROWN

[31] I also did not attribute any delay to the actions of the Crown.

LIMITS ON INSTITUTIONAL RESOURCES

[32] I attributed any delay to the limits on institutional resources in our courts here in Halton. Mr. Reid was offered the earliest day for trial that was available.

OTHER REASONS FOR DELAY

[33] There were no other reasons for the delay here.

PREJUDICE TO THE ACCUSED

[34] Everyone suffers prejudice as a result of being charged. This is inherent in the process itself. The prejudice of concern in the s. 11(b) analysis is not prejudice associated with the laying of criminal charges but the prejudice arising from the delay in processing or disposing of the charges. A court may infer or presume the existence of prejudice or it may be otherwise proven. Prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn. The inference of prejudice from a very long delay becomes nearly irrebuttable.

[35] In this case, I have been provided with no materials suggesting that Mr. Reid suffered actual prejudice as a result of the time taken to bring his charges to trial.

[36] There is nothing before me to indicate that he was subject to restrictive bail terms. He never attended court personally before the trial date.

[37] There is nothing to indicate emotional stress or financial hardship arising out of any delay.

[38] I am not satisfied that the delay in this case is such that I should infer that Mr. Reid suffered prejudice.

[39] After considering all of these factors, I was not satisfied that Mr. Reid suffered prejudice arising from the delay in processing or disposing of the charges. The delay was only a few days over nine months. It was unlikely that the memories of the witnesses would suffer from the delay. The police officer only had to recall that he saw Mr. Reid using his hand-held communications device while driving and at most Mr. Reid had to remember that he was not doing this. Finally, I cannot imagine that Mr. Reid suffered at all from any stigma attached to being charged with this offence.

BALANCING THE SOCIETAL INTEREST IN A TRIAL ON THE MERITS

[40] Appeal courts have repeatedly stated that there are societal interests in ensuring that an accused is tried within a reasonable time, in order to minimize the prejudice to the accused and to ensure that they are treated humanely and fairly. There is also a societal interest in ensuring that accused are tried on their merits. As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial.

[41] With that in mind, I note that the offence of distracted driving is very much in the news these days with reports that it has been contributing significantly to damage to property and to personal injuries arising out of motor vehicle collisions. The offence is often compared to drinking and driving with regard to the serious consequences flowing from these offences. In light of this, I am satisfied that balancing the societal interest in a trial on the merits is particularly important in such cases.

ANALYSIS AND CONCLUSION

[42] In R. v. Morin, the Supreme Court of Canada stated that "it is appropriate for this Court to suggest a period of institutional delay of between eight and ten months as a guide to Provincial Courts". However, "deviations of several months in either direction can be justified by the presence or absence of prejudice".

[43] This Supreme Court of Canada guideline is neither a limitation period nor a tariff. It is however, an instructive device for measuring the constitutional state of the inventory of cases before the Court.

[44] The delay of just over nine months was well within the guideline especially when one takes into account the absence of prejudice.

[45] Further I see no reason why a different guideline should apply to provincial offences.

[46] Accordingly, I would have dismissed the application under the old framework.

[47] The application fares no better with a post-Jordan analysis.

POST-JORDAN ANALYSIS

[48] I note again that the time between charge and trial was 10 months and 18 days. This was below the new presumptive ceiling of 18 months for cases being heard in provincial court.

[49] The onus then is on the defence to show that the delay is nonetheless unreasonable. To do this, the defence must show that (1) it took meaningful and sustained steps to expedite the proceeding, and (2) the case took markedly longer than it should have.

[50] As for the first point, the defence must show that it attempted to get the earliest possible date, that it brought delay and prejudice to the attention of the Crown and that it cooperated and conducted itself reasonably and expeditiously.

[51] The Crown has a duty to respond to these efforts.

[52] The conduct of both Crown and defence counsel should not be measured against a standard of perfection. The question is whether they acted reasonably.

[53] As for the second point, the question of whether the case has taken longer than it should have includes consideration of the complexity of the case, local considerations and whether the Crown took reasonable steps to expedite the proceedings.

[54] This new framework applies to cases already in the system but this must be applied contextually and flexibly.

[55] In transitional cases falling below the ceiling, the defence need not show that it took initiative to expedite the case, although I must still consider the actions or inactions of the defendant or counsel that may be inconsistent with a desire for a timely trial. I have already addressed examples of such actions and inactions previously.

[56] Given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system.

[57] In this case, I find, for all of the reasons that I discussed earlier, that Mr. Reid has not shown that the delay was unreasonable.

CONCLUSION

[58] For the above reasons, the appeal is dismissed.

Released: December 8, 2017

Signed: "Justice D.A. Harris"