Ontario Court of Justice

Date: 2018-11-09 Court File No.: Newmarket 4961-999-81477866

Between:

YAMEENA YOGESWARAN Appellant

— AND —

THE REGIONAL MUNICIPALITY OF YORK Respondent

Provincial Offence Appeal

Heard and Delivered: November 9, 2018

Counsel:

• Ms. Volga Pankou, counsel for the Respondent
• Mr. Gregory Hill, agent for the appellant

KENKEL J.:

[1] Ms. Yogeswaran approached Mr. Hill's office days before her first trial date to retain him for the trial. She had no disclosure. Neither the defendant nor Mr. Hill were prepared to proceed. On November 30, 2016 the trial was adjourned at the request of the defendant and a new trial date was set for September 15, 2017. The presiding Justice of the Peace noted that it was a long time until the next date but Mr. Hill told the court, "Yes that works. We're open that day". He did not suggest any earlier dates. The court expressed further concern about the delay but the defence confirmed the date and the Justice of the Peace concluded, "So be it".

[2] At trial Ms. Yogeswaran brought a s.11(b) application complaining of the delay resulting from her adjournment of the first trial. The application was dismissed. On behalf of the appellant, Mr. Hill was permitted to enter a plea of guilty to a reduced charge and was sentenced accordingly.

[3] Ms. Yogeswaran now appeals alleging the Justice of the Peace erred in dismissing the s.11(b) application. There are two issues: whether the appellant has standing to appeal after pleading guilty at trial and whether there was any error in the s.11(b) analysis at trial.

[4] A guilty plea constitutes a waiver, not only of the accused's right to require the prosecution to prove guilt beyond a reasonable doubt, but also of the related procedural safeguards in the trial process – R v Faulkner 2018 ONCA 174 at para 85. The guilty plea here disentitles the appellant from challenging pre-trial rulings in proceedings before the plea was taken – Faulkner at para 94. That applies with stronger reason here where the appellant was permitted to plead to a reduced offence with the benefit of reduced penalty.

[5] With respect to the merits of the appeal, the appellant has not demonstrated any error in law with respect to the original ruling at trial. The appellant's submission to the effect that R v Jordan 2016 SCC 27 imposes absolute timelines such that it doesn't matter whether the defence caused the delay misstates the test. Jordan requires the court to begin by deducting defence delay. The timelines are applied after that deduction.

[6] In this case not only did the defence request the delay complained of but the agent at trial specifically confirmed that his client was content with the time to the next trial date despite concerns expressed by the Justice of the Peace. On either Jordan or the prior R v Morin, [1992] 1 SCR 771 analysis, there was no merit to the application.

Conclusion

[7] The appeal is dismissed.

Delivered: November 9, 2018

Justice Joseph F. Kenkel