Court File and Parties
Ontario Court of Justice
Date: 2019-04-18
Court File No.: Central East - Newmarket 4911-999-00-9132882Z-00; 4911-999-00-9505347Z-00; 4911-999-00-9514510Z-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 —
David Debono Leonardo Graci Phuong Nguyen Appellants
Before: Justice M.E. Misener
Heard on: March 8, 2019
Reasons for Judgment released on: April 18, 2019
Counsel
C. Bendick — counsel for the prosecution
V. Manoukian — for the defendants D. Debono, L. Graci and P. Nguyen
Appeal Information
On appeal from conviction by:
- Justice of the Peace P. Solomon on June 15, 2017 in the matter of David Debono
- Justice of the Peace R. Shousterman on May 14, 2018 in the matter of Leonardo Graci
- Justice of the Peace C. Smythe on May 22, 2018 in the matter of Phuong Nguyen
Judgment
MISENER J.:
Introduction
[1] These cases all involve appeals of dismissals of 11(b) stay Applications in Part I Provincial Offences Act (POA) proceedings.
[2] The main issue raised in these appeals is how to apply the test for a stay where a case is below the presumptive ceiling set in R. v. Jordan, 2016 SCC 27, in Part I Provincial Offence Act (POA) prosecutions. The determination of that issue raises these questions: Is it open to an Applicant to submit that the ceiling should be lower than 18 months due to the simplicity of Part I prosecutions? For cases below the presumptive ceiling, what steps must the Applicant take to demonstrate a sustained effort to expedite the proceedings? What is meant by a case taking "markedly longer than usual"? In what circumstances, if any, is it proper for a Justice of the Peace to dismiss summarily an Application for a stay on the basis that it is frivolous?
The Standard of Review
[3] Findings of fact are entitled to deference and are reviewed on a standard of palpable and overriding error. The Application of the law to those facts including the legal characterization of delay is reviewable on a standard of correctness.
Facts
[4] All of the defendants were charged with Part I provincial offences and all of them brought Applications under Section 11(b) of the Charter on the basis that their right to be tried within a reasonable time was denied. All of these motions were dismissed and all of them have appealed.
[5] Mr. Debono was charged with speeding 89 km/h in a 60 km/h zone on June 22, 2016. He Filed a Notice of Intention to Appear on July 6, 2016. On October 18, 2016 the clerk of the court issued a Notice of Trial setting a date of June 15, 2017. Mr. Debono ordered disclosure in November 2016 and filed a Section 11(b) Application. The total delay to trial was 11 months and 24 days. He filed an Application for a stay to be heard on his trial date. The prosecution applied to have the Application dismissed summarily on the basis that the delay was markedly below the presumptive ceiling and it was a first trial date with no adjournments. After giving the Applicant an opportunity to make submissions as to why the 11(b) Application should be fully litigated, His Worship J.P. Solomon dismissed it summarily. Mr. Debono pleaded guilty. For reasons which I have already provided, I permitted him to argue the appeal of the denial of his stay Application because when he entered that plea, Mr. Debono expressed his intention to preserve his right to appeal the dismissal of his 11(b) Application. His legal representative did not appreciate that he should plead not guilty and admit the prosecution's case to accomplish that end.
[6] Mr. Graci was charged with speeding 80 km/h in a 60 km/h zone on March 8, 2017. He filed a Notice of Intention to Appear on March 16, 2017. The Notice of Trial was sent on June 5, 2017. His trial date was March 20, 2018, a total delay of 12 months and 12 days. He ordered and obtained disclosure in a timely fashion and was ready to proceed on the trial date. On that date, his legal representative applied for a stay of proceedings for unreasonable delay. The 11(b) Application was fully argued and Her Worship J.P. Shousterman reserved. The decision denying the Application was delivered on May 14, 2018 and the trial was completed on that day, resulting in a total delay of 14 months and 1 week. He was found guilty.
[7] Mr. Nguyen was charged with failing to stop at a red light on April 12, 2017. He filed his Notice of Intention to Appear on the same date. A Notice of Trial was sent by court administration on June 30, 2017. Disclosure was provided on December 12, 2017. His trial date was May 22, 2018, a delay of 13 months and 10 days. His Application for a stay was filed on July 18, 2017. It was dismissed, a trial was held and he was found guilty by Her Worship J.P. Smythe.
Is it Open to a Defendant to Submit that the Ceiling Should be Lower Than 18 Months?
[8] In R. v. Jordan the Supreme Court of Canada set a presumptive ceiling of 18 months for the trial of matters in provincial court. Where the time to trial is under this ceiling the delay is presumed to be reasonable and the onus is on the Applicant to establish that it is unreasonable. To do so the Applicant must establish two things:
- That he took meaningful sustained steps to move the case along; and
- That the case took markedly longer than it reasonably should have
[9] Recognizing that the issue of whether there should be a lower presumptive ceiling for all Part I POA prosecutions ought to be resolved by a higher Court with a full factual basis and submissions, the Appellants did not ask me to set a new ceiling. Nevertheless they urged that in each of their cases the starting point, or as the Appellants expressed it "the point at which we should be worrying about staying proceedings" should be much lower. The authority for the proposition that a case-specific presumptive ceiling can be set is the judgment of Mr. Justice McInnes in York (Regional Municipality) v. Tomovski, 2017 ONCJ 785. In that case he applied a ceiling of 14 months above which delay was presumed to be unreasonable.
[10] Mr. Justice McInnes recognized that the decision in R. v. Jordan was binding on him. However he distinguished between the "concept" of a presumptive ceiling and "the number chosen for it: While it is clear the concept applies in Part I proceedings, it is not at all clear the number does."
[11] He explained his conclusion that the 18 month number was not binding as follows: First he pointed out that the ceiling was set at 18 months in Jordan after the Court analyzed criminal cases to take into account "the inherent time requirements of the case and the increased complexity of criminal cases since Morin …and the significant role that process now plays in our criminal justice system." He then noted that Mr. Justice Sopinka explained what "inherent time requirements of the case means in R. v. Morin, observing that "there may be significant variations between some categories of offences such as between summons cases and cases of arrest." Mr. Justice McInnes concluded that inherent time requirements can vary across categories of cases and that the reasonable time requirements of a case increase proportionally to a case's complexity. He reasoned that had the Supreme Court used data from Part I offences to set the ceiling, it would have been lower. Therefore the lower overall inherent time requirements of Part I proceedings furnished a valid legal basis to distinguish Jordan to the extent of allowing for a lower presumptive ceiling. He concluded that "a lower celling is required to ensure fidelity to the broader principles announced in Jordan in this very different procedural context."
[12] He then identified a lower ceiling of 13 to 15 months for Part I offences. He held at paragraph 156:
..Part I requires less time for intake, the adjudications are much simpler and there are far fewer procedural add-on steps that would have been characterized as neutral time under the Morin framework. The potential for these additional procedural steps is baked into the ceilings set in Jordan . Part I requires a buffer too, but a substantially shorter one. In light of those considerations, I find the appropriate presumptive ceiling for Part I proceedings is in the 13 to 15 month range and I have applied a 14 month ceiling to determine the result in this appeal.
[13] This reasoning was endorsed by Madam Justice Greene in R. v. El-Nasarallah, 2018 ONCJ 161 at paragraph 8, where she held that "there is a solid legal and principled basis to fix a lower presumptive ceiling for provincial offences Part I proceedings." Relying on R. v. Andrade, 2011 ONCJ 470, she noted that the tolerable institutional delay under the Morin regime was 8 to 10 months and that, given the lack of significant intake proceedings and the straightforward nature of these cases, the presumptive ceiling ought to be lower than the ceiling for criminal cases. Due to a lack of statistical information before her, Madam Justice Greene was unable to identify what the ceiling ought to be but she was satisfied that it should not be lower than 12 months which was well above the delay in the case before her.
[14] I disagree with Mr. Justice McInnes' view that it is open to an Applicant asserting unreasonable delay in a Part I POA prosecution to submit that the presumptive ceiling should be lower in his or her case. The presumptive ceiling for these matters is 18 months.
[15] The primary basis for my disagreement with Mr. Justice McInnes is stare decisis. The Supreme Court of Canada clearly held that the ceiling for matters proceeding in provincial court is 18 months and Part I offences are proceedings in the provincial court. Both the concept of the ceiling and the number set for it are binding.
[16] I also disagree with Mr. Justice McInnes in principle. I do not share the view that setting a lower ceiling for Part I provincial offences is required to ensure fidelity to the principles expressed in Jordan.
[17] The inherent time requirements of a case were not the only factor taken into account in setting the presumptive ceiling in Jordan. The Supreme Court of Canada also took into account prejudice: "Once the ceiling is breached we presume that accused persons will have suffered prejudice to their Charter-protected liberty, security of the person and fair trial interests." (para. 54)
[18] In the case of Part I POA offences, prejudice is a countervailing force to the effect of inherent time requirements. While the lesser time inherent in the prosecution of Part I POA offences pushes the presumptive ceiling down, prejudice operates in the other direction. Unlike criminal charges, there is little or no stress in awaiting the resolution of a Part I POA offence. Liberty interests are not affected. Nor is security of the person: unlike criminal charges there is minimal if any stigma associated to these charges.
[19] Furthermore, fixing the point at which delay is presumed to be unreasonable has a serious impact on the allocation of resources in the criminal justice system which in turn affects public confidence in it. As the Supreme Court of Canada noted in R. v. Jordan at paragraph 50, one of the important effects of a presumptive ceiling is to give "meaningful direction to the state of its constitutional obligations."
[20] Resource-allocation is the primary determinant in time to trial. There is only so much public money to devote to the criminal justice system. Fixing a lower ceiling for Part I POA prosecutions will affect how these resources are allocated within it. The greater the prejudice suffered by accused persons awaiting trial the stronger the societal interest in speedy justice. As I have noted, there is little or no prejudice involved in awaiting trial for Part I POA offences because they carry little or no stigma and there are no constraints on the liberty of those awaiting trial. Contrast these cases with charges carrying great social stigma such as sexual assaults, or cases where the accused is subject to bail conditions or worse, detained in custody awaiting trial. Because presumptive ceilings necessarily impact the distribution of resources in the criminal justice system, it is obvious that considerations of prejudice and notions of fairness and justice are countervailing pressures against the lowering of the presumptive ceiling for Part I POA offences.
[21] There is another reason why setting different presumptive ceilings for matters in the provincial court is, in my view, a flawed concept. The setting of different presumptive ceilings for particular charges is the polar opposite of the bird's eye view approach which Mr. Justice Moldaver instructs lower courts to take. Indeed as can be seen by the history of these cases, it represents a return to the litigation-generating uncertainty of Morin. This uncertainty was condemned by the Supreme Court of Canada in R. v. Jordan as undermining public confidence in the administration of justice.
[22] The ceilings of 18 months in provincial court and 30 months in Superior Court are the two bright lines set by the highest court in the country. I recognize the fallacy of the slippery slope; however, I note that the same arguments which Mr. Justice McInnes makes to support a different number for the presumptive ceiling for Part I matters can be applied to set different ceilings for different types of criminal offences tried in provincial courts. Arguably the time required for a simple assault trial is much closer to that required for the trial of a speeding ticket than it is to the human trafficking, aggravated assault or drug-impaired and over 80 trials regularly occurring in the provincial courts in this Region.
[23] Finally, the necessary flexibility to ensure fidelity to the broader principles announced in Jordan is already built into the Jordan analysis regardless of where the presumptive ceiling is set. The ceiling simply marks the time at which the burden shifts. As Madam Justice Henschel points out in R. v. Dies, 2018 ONCJ 641 at paragraph 84, defendants in POA prosecutions are protected against unreasonable delays by an 18-month ceiling. For cases under 18 months, it is still open to them to show that their case took markedly longer than it should have.
[24] The presumptive ceiling is not 14 months or 12 months or 10 months. It is an error to use any of those figures as the point at which delay is presumptively unreasonable. Both the concept of a presumptive ceiling and the 18-month point at which it was set in R. v. Jordan apply to Part I POA offences.
The Application of the Jordan Test to These Cases
Calculating Net Delay
[25] Net delay is determined by deducting from the total delay, any delay which is solely and directly attributable to the defence.
[26] There was no delay attributable to Mr. Debono or Mr. Nguyen.
[27] In Mr. Graci's case he made his Section 11(b) Application returnable on the trial date and the entire time set for the trial was consumed by the Application. The Justice of the Peace reserved her decision. In my view the delay occasioned by the matter going over for decision on the motion is solely attributable to the defence. I agree with Mr. Justice Bourque in R. v. Martingrove Properties Ltd., 2018 O.J. No. 5223 at paragraph 11, that where an 11(b) Motion is brought on the trial date rather than being set in advance, any further delay caused by the loss of trial time consumed in arguing it is to be deducted. Accordingly the net delay for Mr. Graci is 12 months and 12 days.
The Test for Unreasonable Delay for Cases Under the Presumptive Ceiling Applied to Part I Prosecutions
[28] In order to satisfy the test for a stay in cases under the ceiling the defence must show two things:
- The defence took meaningful sustained steps to move the case along; and
- That the case took markedly longer than it should have.
Meaningful Steps Demonstrating a Sustained Effort to Move the Case Along
[29] The obligation to move the case along falls on all of the parties. For their part, defendants must order and pick-up disclosure in a timely fashion and, should they wish to be represented, retain that representation in a timely fashion. Where missing disclosure comes to their attention they must notify the prosecution to avoid needless delays.
[30] In these three appeals, all of the Applicants ordered disclosure and picked it up and retained representation in a timely way. They filed their 11(b) Applications properly and in a timely fashion and they attended their trial dates prepared to proceed.
[31] The Appellants submit that one of the errors committed in these cases was that the Justices of the Peace imposed too high a standard on them to show they made a sustained effort to move their cases along. Mr. Manoukian submits that the reasons given by all of the Justices of the Peace "reveal the untenable burden that they placed on the applicants holding them to the standard of perfection and not reasonableness."
[32] I disagree that any of the Appellants were held to an unreasonable standard when the Justices of the Peace considered their efforts to move their cases along.
[33] The particular focus of the Appellants' submission was the observation made by both Justice of the Peace Shousterman and Justice of the Peace Smythe that while the Applicant faulted the prosecution for failing to offer an earlier trial date in response to service of the Section 11(b) Application and pointed to that failure as evidence of complacency, the Applicant had done nothing to secure an earlier date for trial. I see no error in the manner in which the Justices of the Peace dealt with the Appellants' submission that the prosecution had been complacent while he had been diligent.
[34] Justice of the Peace Shousterman also faulted the Applicant for bringing the Section 11(b) Application on the trial date thereby further delaying the trial by consuming the entire time set for it with arguments about delay. She pointed out that a diligent Applicant who was actually concerned about delay would set down the motion in advance of the trial.
[35] Since the Appellant in that case, Mr. Graci, had legal representation, I agree with her observation that a diligent Applicant would have brought the motion in advance. However, given the number of unrepresented persons appearing in provincial offences court, I am not of the view that failure to bring the delay motion in advance of the trial date is fatal to it. And that was not the finding Justice of the Peace Shousterman made. Rather she pointed out a number of things that the Applicant could have done to move the case along diligently while also finding that the matter did not take markedly longer than it should have. As I have already indicated, it is my view that the proper approach is to deduct, from the total delay, delay caused by the failure to argue the Motion in advance as delay solely attributable to the defence.
Markedly Longer than Reasonable
[36] The Appellants took the position that all of these Part I Offences are so straightforward that anything in excess of 10-11 months from offence date to trial is markedly longer than it should be.
[37] Their focus was on the inherent time requirements of Part I POA cases and they cited a number of authorities including R. v. Andrade to show the simplicity of Part I proceedings. Mr. Manoukian provided a helpful summary of how Part I offences proceed to illustrate their simplicity:
Process under Part I is commenced by issuing an offence notice at the roadside or service within 30 days of the alleged date of the offence. The defendant has 15 days to file the Notice of Intention to Appear and dispute the officer's testimony or to ask for an early resolution meeting with the prosecutor. The charging officer has 7 days to file the certificate of offence with the courthouse…The clerk of the court is required to provide Notice of Trial to the defendant and prosecutor as soon as is practicable…
[38] The Appellants point out that, under the Morin regime, stays were granted where the intake and institutional delay was 11 months. They also point out that the Provincial Offences Act was designed to establish a speedy and efficient method of dealing with offences.
[39] I accept the proposition that Part I proceedings are simple and streamlined.
[40] But the test for whether a case takes markedly longer than reasonable set out by the Supreme Court in R. v. Jordan is not limited to a consideration of case complexity. In fact, the Supreme Court directs that trial judges should consider a variety of factors, including:
- case complexity;
- local considerations; and
- whether the Crown took reasonable steps to expedite the proceedings.
[41] The Supreme Court directs that trial judges should use their knowledge of their own jurisdiction's local and systemic considerations and the length of time a similar case typically takes to reach trial in assessing the reasonableness of the time to trial in cases which are below the ceiling.
[42] All of the Justices of the Peace who tried the Appellants' cases regularly preside in this jurisdiction. They were all capable of quickly applying their extensive knowledge of local conditions and their experience with similar cases to assess the delays in the cases before them.
[43] In Mr. Graci's case, Her Worship Justice of the Peace Shousterman set out at some length the situation of the provincial offences courts in this jurisdiction both during submissions and in her reasons.
[44] The final consideration is whether the prosecution took reasonable steps in expediting the process. None of the Appellants submitted that the prosecution had caused undue delay other than by failing to bring forward their matters, a submission which I will address below. I am satisfied that all of the Justices of the Peace considered this factor and that as jurists who regularly preside in this Region they were well acquainted with the practices of the prosecutors. Justice of the Peace Shousterman specifically set out the recent efforts made by the municipality to address the ever increasing volume of provincial offences in this Region. She noted the implementation of early resolution strategies, the building of new courtrooms in a new building and the introduction of new trial management procedures.
Is there An Obligation on the Prosecution to Offer Earlier Dates when an 11(b) is Filed?
[45] As I indicated the Appellants did fault the prosecution for failing to take any steps to secure earlier dates in any of their cases after being served with 11(b) Applications.
[46] The Appellants submitted that the York Region prosecutors did not act reasonably in expediting the process because, after having received notice of the 11(b) Application, the prosecution ought to have offered earlier trial dates. For example Mr. Debono submits that since he filed his 11(b) Application 7 months in advance of the trial date the prosecution had plenty of time to respond by offering earlier dates.
[47] The Appellants filed as exhibits Applications made by prosecutors in the City of Toronto to bring forward trial dates "to remedy constitutional delay" Mr. Manoukian advised me that in his experience it is the practice of the City of Toronto prosecutors to respond to 11(b) Applications by bringing those trials forward.
[48] It is not a practice in York Region to send letters offering earlier dates in response to Section 11(b) Applications or to file bring forward motions.
[49] In my view there is no requirement that, upon being served with an 11(b) Application, the prosecution must respond by offering earlier dates to defendants whose trials are set below the presumptive ceiling.
[50] The Appellants were each provided the earliest available trial date after they filed their Notice of Intention to Appear. Those dates were well below the presumptive ceiling. The filing of a stay Application did not trigger any further obligation on the prosecutor's office to obtain earlier dates. The prosecution was ready to proceed on the first trial date having provided the Appellants with timely disclosure of their cases. In respect of all of the Appellants the prosecution acted reasonably in expediting the matters. It is worth noting Her Worship Justice of the Peace Shousterman's observation that the defendants who were all represented could have contacted the Trial Coordinator or filed their Applications in advance of their trial dates to address the delay about which they complained.
[51] In all of these cases the Justices of the Peace concluded that the prosecutions had not taken markedly longer than usual. In my view they were correct in their respective assessments.
Did Justice of the Peace Solomon Err in Summarily Dismissing Mr. Debono's Section 11(b) Application
[52] In R. v. Jordan the Supreme Court of Canada made it clear that all parties including trial judges are obliged to eliminate needless delay. In R. v. Cody the Supreme Court of Canada said this:
…trial judges should use their case management powers to minimize delay. For example, before permitting an Application to proceed a trial judge should consider whether it has a reasonable prospect of success…trial judges should not hesitate to summarily dismiss Applications and requests the moment it becomes apparent they are frivolous.
[53] A frivolous motion is one that has no reasonable prospect of success.
[54] The delay to trial in Mr. Debono's case was 11 months and 24 days, well below the presumptive ceiling of 18 months. It was the first trial date. The prosecution had done nothing to delay the matter. At the commencement of the Application the prosecutor made these facts clear to Justice of the Peace Solomon and requested that he dismiss the motion summarily.
[55] His Worship is a very experienced Justice capable of assessing quickly whether the delay in the case was reasonable in the context of local conditions. There was no evidence of undue delay by the prosecution. It was a straightforward Part I prosecution ready for trial on the first date after a delay that was consistent with other cases in this jurisdiction. On this record there was no prospect of the Application succeeding. On its face the Application was without merit.
[56] His Worship gave the defence an opportunity to respond to the Application for summary dismissal. Rather than showing a basis for the motion to proceed, the Applicant simply insisted that he had the absolute right to argue it fully. He provided no basis for the Justice of the Peace to conclude that there was any likelihood of success.
[57] His Worship made no error in dismissing a Motion that had no reasonable prospect of success. To the contrary he was carrying out the directive of the Supreme Court of Canada in R. v. Cody to ensure that trials on their merits are conducted without undue delay.
Transitional Case
[58] I note that Mr. Debono's is a transitional case. That fact has no effect on my conclusion. I found no fault with the conduct of the defence and therefore there is no concern of reliance on past law. Furthermore, I am satisfied that the delay would not have been found to be unreasonable under the Morin regime.
R. v. Graci Appeal against Conviction
[59] Mr. Graci also appeals against his conviction on the basis that the Justice of the Peace could not be satisfied that the radar device used to measure his speed was working properly as the evidence from the officer to that effect was in response to a leading question. There is no merit to this appeal. The question was not a leading question. The prosecutor asked: "And what can you tell the Court about the workings of the radar; if you know it was working properly that day or not?" That question does not suggest an answer. And even if it were a leading question, the fact that a response is given to a leading question does not render the response inadmissible. It goes to weight. Her Worship accepted the evidence. Her credibility assessment is factual and entitled to deference. She made no error.
Released: April 18, 2019
Signed: Justice M.E. Misener