Court Information
Ontario Court of Justice
Date: February 14, 2020
File No.: 4860 99900 68841822-00
Toronto
Parties
Between:
City of Toronto
— and —
George Moussaed
Before the Court
Before: Justice of the Peace Scarfe
Heard on: January 13, 2020
Reasons for Judgment released on: February 14, 2020
Counsel
P. McMahon — Counsel for the Prosecution
P. Javadi — Agent for the defendant, George Moussaed
Decision
JUSTICE OF THE PEACE SCARFE:
Charge and Procedural History
[1] George Moussaed is charged with operating a motor vehicle while using a handheld communication contrary to section 78.1(1) of the Highway Traffic Act. The offence is alleged to have taken place on February 20, 2018.
[2] Two days later, on February 22, 2018, Mr. Moussaed filed a Notice of Intention to Appear and requested a trial.
[3] The first trial date was scheduled for October 31, 2018, just over 8 months from the offence date. On that date, it appears Mr. Moussaed attended the Courthouse at Old City Hall in Toronto, and the matter was adjourned so that he could obtain disclosure. Exhibit 1 in these proceedings is his request for disclosure, stamped October 31, 2018. The officer's notes were provided on the same day, but the DVD was not available as it had to be ordered.
[4] The matter was adjourned to Tuesday April 9, 2019, for trial, a period of just over five months. Mr. Moussaed was notified that the DVD was ready on the afternoon of March 29, 2019 and was available for pick-up from the Prosecutor's office at Old City Hall. Rather than sending a courier or attending the prosecutor's office in person to obtain the video immediately, Mr. Moussaed simply attended Court on April 9, 2019, at which time he was provided with the DVD.
[5] To be clear, Mr. Moussaed stated that he was notified by telephone that the DVD was ready for pickup on the afternoon of Friday March 29, 2019. His trial was scheduled for Tuesday April 9, 2019, eleven days, or six business days following him having been notified the DVD was ready. In a subsequent transcript (August 12, 2019) Mr. Moussaed advised the Court that in his view, the prosecution had left the matter of providing him with the DVD until the last minute. Due to his work commitments, he simply did not have time to travel to the Prosecutor's office to pick up the DVD during the intervening week.
[6] On April 9, 2019, the DVD was provided in Court, and Mr. Moussaed sought another adjournment so he could review the DVD. The trial was adjourned to August 12, 2019, a further period of just over four months.
[7] On August 12, 2019, Mr. Moussaed was in attendance and ready for trial. By the time Mr. Moussaed's matter was called, the Court had run out of time to complete any further trials. His matter was adjourned for "lack of time", a somewhat regular occurrence in the traffic courts at Old City Hall. Several dates were canvassed, and Mr. Moussaed agreed to the first date that was available to the prosecution, the officer and the Court, that being December 10, 2019. The presiding Justice of the Peace encouraged Mr. Moussaed to get some legal advice on the issue of his right to be tried within a reasonable time and adjourned the matter to that date.
[8] Mr. Moussaed had been representing himself up until August 12, 2019, as is his right. He subsequently retained Mr. Javadi to represent him. Mr. Javadi filed an application for a stay of proceedings on the basis that Mr. Moussaed's right to be tried within a reasonable time had been breached, returnable on the next date set for trial, that being December 10, 2019. Mr. McMahon, on behalf of the prosecution, took no issue with the application being filed on the same day as the trial. The record of the proceedings as recorded on the Part 1 Certificate of Offence indicates that the matter was adjourned again to January 13, 2020, again, due to a lack of court time.
[9] On January 13, 2020, the matter was argued before me. I reserved my decision and adjourned the matter to February 14, 2020. Depending on how this application for a stay of proceedings is disposed of, the trial is scheduled to proceed on that day. The period from the laying of the charge until the anticipated trial date (February 20, 2018 – February 14, 2020) is six days short of twenty-four months.
Issues to be Determined
[10] This Application raises three distinct issues:
In Part 1 Provincial Offences Act matters, what is the appropriate length of time before the presumptive ceiling in R v Jordan is reached?
Should the period from October 31, 2018 (the first trial date) to April 9, 2019 (the second trial date) be attributed to the defence?
Should the period from April 9 (the second trial date) to August 12, 2019 (the third trial date) be attributed to the defence?
The Governing Principles
The Jordan Framework
[11] Thirty-four years following the enactment of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada released its decision in the case of R v Jordan, 2016 SCC 27. The majority recognized that after decades of complex litigation, a new approach was necessary. Moldaver, Karakatsanis and Brown JJ., speaking for the majority, stated at paragraph 4 and 5:
4 Our system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative. Notwithstanding a delay of over four years in bringing a drug case of modest complexity to trial, both the trial judge and the Court of Appeal were of the view that the appellant was tried within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing the current analytical framework governing s. 11(b). These difficulties have fostered a culture of complacency within the system towards delay.
5 A change of direction is therefore required. Below, we set out a new framework for applying s. 11(b). At the centre of this new framework is a presumptive ceiling on the time it should take to bring an accused person to trial: 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. Of course, given the contextual nature of reasonableness, the framework accounts for case-specific factors both above and below the presumptive ceiling. This framework is intended to focus the s. 11(b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11(b)'s important objectives.
And further at paragraphs 49 and 50:
49 The most important feature of the new framework is that it sets a ceiling beyond which delay is presumptively unreasonable. For cases going to trial in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of trial. For cases going to trial in the superior court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial. 2 We note the 30-month ceiling would also apply to cases going to trial in the provincial court after a preliminary inquiry. 3 As we will discuss, defence-waived or -caused delay does not count in calculating whether the presumptive ceiling has been reached — that is, such delay is to be discounted.
50 A presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(b) is not a hollow promise.
Accounting for Defence Delay
[12] Having set a presumptive ceiling of 18 months for cases tried in the provincial courts, the Court in Jordan, supra, went on to explain that periods of delay directly attributable to the defence are to be deducted from the overall delay resulting in the net delay:
C. Accounting for Defence Delay
60 Application of this framework, as under the Morin framework, begins with calculating the total delay from the charge to the actual or anticipated end of trial. Once that is determined, delay attributable to the defence must be subtracted. The defence should not be allowed to benefit from its own delay-causing conduct. As Sopinka J. wrote in Morin: "The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits" (p. 802).
61 Defence delay has two components. The first is delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp. 790-91). Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights. However, as in the past, "[i]n considering the issue of 'waiver' in the context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness" (R. v. Conway, [1989] 1 S.C.R. 1659, per L'Heureux-Dubé J., at p. 1686).
62 Accused persons sometimes, either before or during their preliminary hearing, wish to re-elect from a superior court trial to a provincial court trial for legitimate reasons. To do so, the Crown's consent must be obtained (Criminal Code, R.S.C. 1985, c. C-46, s. 561). Of course, it would generally be open to the Crown to ask the accused to waive the delay stemming from the re-election as a condition of its consent.
63 The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial" (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.
64 As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).
65 To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.
66 To summarize, as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence's conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay.
[13] In the case before me, there were no waivers by the defence. The analysis below will therefore focus solely on the second component of defence delay, that being delay allegedly caused by the conduct of the defence, in respect of two distinct periods in the chronology of the case.
Guidance from R v Gandhi and R v Cody
[14] In R v Gandhi, 2016 ONSC 5612, Justice Code interpreted Jordan, supra, with respect to the issue of defence delay and suggested some further general propositions:
23 The exact impact of Jordan on the above lines of authority, concerning delay caused by pre-trial motions and pre-trial proceedings initiated by the defence, is not entirely clear and it will inevitably emerge slowly and incrementally from the post-Jordan jurisprudence. However, a number of general propositions can be stated, based on the new Jordan framework:
• "Legitimate" defence actions, such as pre-trial motions with arguable merit, are "generally" included in the 30-month "ceiling." Accordingly, they are no longer excluded as defence delay, nor are they regarded as merely inherent or neutral delay. This is a change from the earlier jurisprudence;
• On the other hand, defence actions that are not "legitimate," such as "frivolous" pre-trial motions, will continue to be treated as defence delay. In this regard, the Jordan majority appears to have followed this aspect of Schertzer;
• Defence unwillingness to proceed or defence unavailability or "other defence actions or conduct" may also directly cause delay, provided "the court and the Crown are ready to proceed." For example, on the facts of R. v. Jordan, supra, at paras. 14 and 120-124, the accused "changed counsel and requested an adjournment" shortly before trial. In addition, counsel was unavailable on the "last day scheduled for the preliminary inquiry," which resulted in the need to set a "continuation date." These two events caused delays of four months and one and a half months, which were both attributed to the defence. In the companion case, R. v. Williamson, 2016 SCC 28 at paras. 21-2, the Court attributed one and a half months' delay to the defence because the accused was not available until the last of four dates offered by the Court for his first appearance after committal. There appears to be no change to the s. 11(b) law, in these circumstances;
• Complex pre-trial proceedings that are particularly associated with substantial delays, such as an "extradition" hearing (and perhaps Third Party Records Motions and proceedings in the nature of certiorari), or a "large number of . . . pre-trial applications," or proceedings involving "novel or complicated legal issues" are not "delay attributable to the defence," assuming they are "legitimate" and not "frivolous." However, they may amount to "exceptional circumstances" that justify lengthening the 30-month "ceiling." See: R. v. Jordan, supra at paras. 72, 77 and 81. At the very least, this is a formal or nominal change from the earlier jurisprudence in how this kind of delay is treated. It remains to be seen whether this change will also make a practical difference, in this kind of case, to s. 11(b) outcomes.
24 In my view, the effect of Jordan is to eliminate the subtle and flexible balancing of four factors, under the Morin framework, and to replace it with a simpler "presumptive ceiling" for unreasonable delay. The old concept of inherent or neutral delay has been eliminated and the old concept of prejudice has been eliminated. Both of these considerations have been absorbed into or included in the "presumptive ceiling." See: R. v. Jordan, supra at paras. 53-4. However, certain aspects of the old law concerning defence delay have been preserved. For example, actions that are not "legitimate" (such as frivolous motions) and actions that "directly" cause delay (such as changes in counsel and unavailability of counsel) continue to be treated as defence delay. Although pre-trial motions of arguable merit are no longer considered neutral or inherent delay, and are now given real s. 11(b) weight by their inclusion in the 30-month "presumptive ceiling," they may justify lengthening the ceiling beyond 30 months if they are numerous or complex.
[15] In R v Cody, 2017 SCC 31, the Supreme Court of Canada elaborated as to the proper analysis to be used in attributing periods of delay to the defence:
(a) Deducting Delay
32 Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.
33 As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. McQuaid, [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advance[e] their clients' right to a trial within a reasonable time, collaborate[e] with Crown counsel when appropriate and ... use court time efficiently" (Jordan, at para. 138).
34 This understanding of illegitimate defence conduct should not be taken as diminishing an accused person's right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling. In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time — and the need to balance both — in our view, neither right is diminished by the deduction of delay caused by illegitimate defence conduct.
Analysis
1. The Length of the Presumptive Ceiling
[16] I will first address issue of the appropriate length of time before the presumptive ceiling is reached in Part 1 Provincial Offences Act matters.
[17] There has been considerable debate in the Ontario Court of Justice since Jordan, supra, as to whether the 18 month presumptive ceiling in criminal cases should also apply to Part 1 Provincial Offences matters, most of which are simple traffic offences.
[18] As Huscroft J.A. stated in granting leave to appeal in the matter of R v Nguyen, [2019] O.J. No. 3280, on June 24, 2019:
2 There are conflicting decisions from the Ontario Court of Justice concerning the applicability of the 18-month presumptive ceiling to the Provincial Offences Act, with some judges concluding that a lower ceiling applies for Part I offences: York (Regional Municipality) v. Tomovski, 2017 ONCJ 785; R. v. El-Nasrallah, 2018 ONCJ 161. Juriansz J.A. denied leave to appeal in Tomovski, but did so on the basis that the appeal was not properly constituted, noting that this court can address the important question of the appropriate presumptive delay ceiling for Part I POA proceedings in another case in which the appeal is properly constituted: York (Regional Municipality) v. Tomovski, 2018 ONCA 57, at para. 19.
3 I am satisfied that this is an appropriate case in which to grant leave. The applicability of the Jordan presumptive ceiling to Part I offences under the Provincial Offences Act has not been addressed by this court, and the due administration of justice requires that this court provide guidance on the matter in light of the conflicting decisions on this question of law. I note that the respondent municipality did not oppose the moving parties leave request and that counsel for the Attorney General advises that he will seek leave to intervene in the appeal.
[19] R v Nguyen is scheduled to be argued on April 1, 2020 before the Ontario Court of Appeal. It is an appeal from the decision of Misener J. in R v Debono, [2019] O.J. No. 2099, (which also dealt with the companion appeals of Graci and Nguyen, the full citation being: "HER MAJESTY THE QUEEN (Respondent) AND DAVID DEBONO, LEONARDO GRACI, PHUONG NGUYEN (Appellants)").
[20] The "conflicting decisions from the Ontario Court of Justice" originate with two 11(b) rulings made by judges of the Ontario Court of Justice, sitting in their capacity as POA appellate Courts. Both these decisions suggest that the ceiling in Provincial Offences Act matters should be lower than the 18 months set by the Supreme Court of Canada in Jordan, supra.
[21] Justice McInnes, in the decision of York (Regional Municipality) v Tomovski, 2017 ONCJ 785, proposed that Part 1 Provincial Offences such as traffic tickets ought to have a shorter period before reaching their presumptive ceiling. In the case before him, he set that ceiling at 13-15 months.
[22] In R v El-Nasrellah, 2018 ONCJ 161, Justice Greene declined to set a presumptive ceiling in POA matters but suggested that the presumptive ceiling should be lower than 18 months, but no lower than 12 months.
[23] Following the release of those two decisions, Justice Misener's decision in R v Debono, [2019] O.J. No. 2099, which dealt with the companion appeals of R v Graci and R v Nguyen, took the opposing view. Her Honour concluded that the presumptive ceiling of eighteen months should apply to all matters in the provincial court, including Part 1 Provincial Offences Act matters.
[24] It should be noted that the reasons in these cases were delivered before the Supreme Court of Canada rendered its judgment in R v K.J.M., 2019 SCC 55 (November 15, 2019). In that case, the issue of the length of the presumptive ceiling set by the Court in Jordan, supra, was considered in the context of the Youth Criminal Justice Act. In K.J.M., supra, the Court concluded that there should be no reduction in the length of the presumptive ceiling for matters prosecuted under the Youth Criminal Justice Act.
[25] In Guan v York (Regional Municipality), 2020 ONCJ 44, Justice Rose reviewed the three decisions referred to above, and found that the presumptive ceiling in Part 1 Provincial Offences Act matters should be 18 months. He agreed with the reasons of Justice Misener and supplemented them by the applying the four reasons in K.J.M., supra. The relevant portions of this very recent decision are as follows:
10 In R. v. Debono, (supra), Misener J. outlined a number of compelling reasons why the 18 month presumptive 11(b) ceiling for trials in the Ontario Court applied to Provincial Offences Act cases in the same manner as Criminal Code prosecutions: stare decisis; allocation of resources; lack of prejudice in Part 1 POA prosecutions; the bird's-eye approach outlined in Jordan; and lastly, the remaining possibility of accused still showing that their time took markedly longer than it should have. I find myself in agreement with her reasoning.
Subsequent development in case law
11 I would only add to Misener J.'s ruling the following. In R. v. K.J.M., 2019 SCC 55 the Court was asked to set a presumptive ceiling for s. 11(b) purposes lower than 18 months when the accused is prosecuted under the Youth Criminal Justice Act (YCJA). They would not. Their reasons were fourfold. The first was that there was no demonstrated problem with delay in time to trial in YCJA prosecutions. The Court had no evidence that youths were not being tried in reasonable time. The second was that the Jordan ceiling was imposed "irrespective of degrees of prejudice experienced by different groups and individuals" (at par. 65).
12 The Court's finding in K.J.M. that prejudice was not a material concern in setting presumptive guidelines was not a finding which was available to McInnes J. in Tomovski. Prejudice was one of the reasons why he set a lower presumptive ceiling (see Tomovski at paras. 110 - 111), but the Supreme Court in K.J.M. found that "...Jordan established a uniform set of ceilings that apply irrespective of the varying degrees of prejudice experienced by different groups and individuals" (at par. 65).
13 The third reason for maintaining the 18 month presumptive ceiling for YCJA prosecutions for the Court in K.J.M. was that the Jordan ceilings are forum-based, as opposed to statue-based. As Moldaver J. said (at par. 66),
Nor, in my view, can a separate ceiling for youth matters be justified on the basis that Parliament has established a separate youth criminal justice system under the YCJA. Constitutional standards exist independent of Parliament's statutory design. Therefore, the mere fact that Parliament decided to create and maintain a separate youth criminal justice system does not by itself provide a sound rationale for establishing a separate ceiling for youth matters. Otherwise, Parliament would have the ability to alter constitutional standards through ordinary statutory amendment, such as by merging the adult and youth justice systems. Such a result would be incompatible with the concept of a constitutional standard.
14 To be fair to the Appellants' argument, Jordan and K.J.M. apply to cases falling under Parliament's jurisdiction, whereas the Ontario legislature governs the POA. That distinction is immaterial in my finding. There is one presumptive ceiling for cases prosecuted in the Provincial Court, and another for those proceeding in the Superior Court. Those ceilings apply regardless of the procedural legislation be it the YCJA, or in this case the POA. The Court in K.J.M rejected a patchwork approach to presumptive ceilings when considering s. 11(b) of the Charter.
15 The last reason for re-iterating an 18 month presumptive ceiling in YCJA prosecutions in the provincial court was the practical concern of introducing another transitional scheme, see K.J.M. at par. 67.
16 I also find that the several appeals heard together present no case for a finding that there is a delay problem with HTA prosecutions. Indeed, the opposite is true. All of the cases heard together fall within a narrow band of 12 months to just less than 14 months. As a set, these cases do not present an argument for a problem of broad based institutional delay.
17 For these reasons, I find that the 18 month ceiling from R. v. Jordan applies to each of these appeals. There is no dispute that each case took much less time than that to come to trial. The dismissals of the s. 11(b) Motions are therefore upheld.
[26] Subject to the pending decision of the Ontario Court of Appeal in R. v. Nguyen, supra, scheduled to be argued on April 1, 2020, I am persuaded that the current state of the law in Ontario is accurately stated by Justice Rose in Guan v York (Regional Municipality), supra. For the purposes of this application, I find the length of the presumptive ceiling to be 18 months.
2. Allocation of Delay from October 31, 2018 (the first trial date) to April 9, 2019
[27] Mr. Moussaed's first trial date was set for October 31, 2018. He did not order disclosure until that day. He could have ordered it back on February 22, 2018 when he filed his Notice of Intention to Appear. That would have been approximately 8 months prior to trial.
[28] Mr. McMahon, on behalf of the prosecution, argues that the failure of Mr. Moussaed to order disclosure in a timely manner should result in the period occasioned by the adjournment being attributed to the defence. Mr. Javadi points out that Mr. Moussaed was unrepresented at that point in the chronology and may not have known that he had a right to disclosure, or how to order it.
[29] There was no transcript filed for October 31, 2018, however the record of proceedings on the back of the Certificate of Offence indicate that the matter was adjourned so that Mr. Moussaed could order disclosure. Exhibit 1 on this Application is a copy of his completed disclosure request form which was provided to the Prosecutor's office on October 31, 2018. It is obvious from the form that he was provided with the officer's notes on the same day, but the DVD, presumably from the In-Car-Camera system in the police cruiser, was not available and had to be ordered from the Toronto Police Service by the Prosecutor's office.
[30] The result was that even though the prosecution was ready to proceed, and the officer was in attendance, out of an abundance of caution, and out of respect for Mr. Moussaed's constitutional right to disclosure (see R v Stinchcombe, [1991] 3 S.C.R. 326), the presiding Justice of the Peace granted his request for an adjournment so he could obtain the DVD. This occasioned a delay of 5 months and 10 days, as the next date set for his trial was not until April 9, 2019.
[31] The issue for this Court is whether that period of delay should be attributed to the defence, and thus be subtracted from the overall delay in this case. Clearly, had Mr. Moussaed ordered disclosure when he filed his Notice of Intention to Appear and requested his trial, barring some unusual event, he would likely have received all his disclosure, including the DVD, well in advance of the first trial date.
[32] Mr. Moussaed was unrepresented at this point in time, having only hired Mr. Javadi later in the proceedings, once it became clear that there were issues with respect to his right to be tried within a reasonable time.
[33] Unrepresented defendants in traffic matters regularly attend their first trial date without having ordered disclosure in advance. Many defendants only realize that they have a right to disclosure on their first trial date. You simply don't know what you don't know.
[34] The Notice of Trial that is sent out by the court's administrative office does little in the way of informing defendants of their rights, or how to exercise them, at least in the Toronto Region. By way of contrast, in the Central East Region, specifically in Newmarket, the court's administration office and the local prosecutor appear to have collaborated to some extent. When the court's administration office mails the Notice of Trial to the Defendant, a Disclosure Request Form is also enclosed.
[35] As Justice Misener noted in R. v. Jakhu, [2019] O.J. No. 2607:
1 Mr. Jakhu was charged with disobeying a stop sign in July 2017. He failed to order disclosure in a timely fashion and when his trial date arrived in June 2018 he sent an agent to request an adjournment on the basis that he had not had the opportunity to review all of it. The application was denied. The agent had no instructions to defend the charge and left the court. Mr. Jakhu was convicted after an ex parte trial. He now appeals that conviction submitting that the Justice of the Peace erred in denying the adjournment resulting in a miscarriage of justice.
Facts
2 Mr. Jakhu was charged on July 31, 2017. He filed a notice of intention to appear and on September 11, 2017 a Notice of Trial was sent to him along with a blank disclosure request form. Detailed instructions explaining the disclosure process were printed on the reverse side of the blank Notice.
3 The disclosure instructions were entitled: "Important Court Information". The form advised that the prosecution had information concerning the charge called disclosure. The following is printed in bold on the form: "This is information you will need in advance of your court date." The form instructs the defendant to fill out the request form and mail or email it to the prosecution office. The address is provided. A warning that processing the request may take up to six weeks is underlined. The form also advises the defendant to arrive 30 minutes prior to the start time to speak with the prosecutor, be prepared for a trial and have his disclosure and any other evidence with him. It provides a phone number to call should the defendant have any questions. Mr. Jakhu acknowledges that he received the blank disclosure form and information when he received his notice of trial in September 2017.
[36] In comparison, there is no such collaboration in the Toronto Region, where only the Notice of Trial is mailed to the defendant. Although there is reference on the Notice of Trial to an online "Guide for Defendants in Provincial Offence Act Cases" published by the Court, as well as the telephone number of the local prosecutor's office, those items are in the "fine print", appearing at the very bottom of the Notice, below the bolder statement "Office Use Only".
[37] In the Toronto Region on any given day, numerous adjournments are granted in the various traffic courts so that defendants can order disclosure. These applications are, more often than not, unopposed by the prosecutor. Officer's are paid to attend and testify in those cases. When those cases are adjourned on the first trial date, they are then paid again to re-attend once the disclosure obligation has been satisfied. This is wasteful and taxes an already overburdened system.
[38] I would also note in passing that in our criminal courts, the obligation to "order disclosure" has gradually been abolished over the last 25 years. Historically, the accused had no right to disclosure in criminal proceedings. Following the Supreme Court of Canada decision in R v Stinchcombe, supra, the Crown began providing disclosure, but only upon the completion of a form requesting same. Today, at least in criminal matters, disclosure is generally ready at the first appearance and provided by the Crown to the accused without the necessity of any sort of "disclosure request" form being filled out.
[39] With the gradual modernization of the courts over time, one can only hope that the prosecutors in Provincial Offence Act matters will eventually follow suit, and that there will be a more streamlined approach to ensuring that each defendant is informed of their right to disclosure and given easier access to it well in advance of their first trial date.
[40] While this obvious flaw in the system leads to the unfortunate result that many trials are adjourned so that defendant can order disclosure, it is also true that disclosure can, and regularly is, ordered well in advance by, and on behalf of, many defendants. Defence counsel and paralegals familiar with the system and local practice, generally submit a request for disclosure to the prosecutor's office as soon as they are retained.
[41] Many unrepresented persons who somehow manage to find the online Guide published by the court, or the plethora of resources on the internet related to the process of contesting traffic tickets, also learn that they have a right to disclosure. Through a telephone call to the prosecutor's office, or by some other means, they learn how to order it.
[42] The Jordan framework was a clarion call to all justice system participants to be more proactive in avoiding delay. The same Court in R v Cody, supra, made it clear that inaction on the part of the defendant can and will lead to a finding that resulting delay will be allocated as defence delay.
[43] In R v Bazdar, 2018 ONCJ 318, Justice of the Peace Opalinski addressed these issues in a similar case to the one before me. In denying the application for a stay of proceedings, Her Worship noted that the DVD was not ordered in a timely manner, and attributed the period resulting from the adjournment as defence delay:
36 While the applicant is entitled to full disclosure and the DVD is part of disclosure, the respondent asserts that the applicant's agent opted to adjourn the matter so that the DVD could be obtained. There was no evidence provided as to the usefulness of the DVD and whether or not it was necessary for the applicant to have proceeded to trial on May 29, 2016. The suggestion is that the time period from May 29, 2017 until October 5, 2017 should fall at the feet of the applicant as the request for the adjournment was the applicant's.
37 What is more appropriate for this court to ask and probe into is what action did the applicant take to obtain full disclosure? He hired an agent who requested disclosure. This initial request was made on November 2, 2016 and was available for pick up on November 8, 2016. It was picked up on November 22, 2016. A further request for clarification of the notes was made by the applicant's agent on April 19, 2017. The issue of the DVD only came to light on the trial date, May 29, 2017. Yet when the agent requested disclosure he ought to have filled out a request form provided by the Municipality. This form has a specific box that should be ticked off to request Video/Audio Evidence.
38 The court has heard that the applicant has been represented from the beginning by a trained legal representative. He is not an unrepresented defendant. As such whether by use of the form provided by the Municipality or in his own form whereby the agent requests disclosure, he ought to have made the request for video/audio evidence in his initial request for disclosure on November 2, 2016. The court has not heard any evidence from the agent with regard to what he did or did not specifically request at that time.
39 R. v. Faulkner, supra, is clear that the court when ascribe the amount of time for which the applicant is responsible, it is not only acts but also acts of omission that are relevant. This is not a situation where a request for DVD evidence was made and not provided prior to the May 29, 2017 trial date, nor is it a situation where an unrepresented defendant is not aware or made aware of the procedure for obtaining disclosure and only becomes aware on the trial date of the existence of a DVD. The applicant's agent had an obligation to ask for full disclosure and this includes the presence of any potential DVD evidence. If he had done so the matter in all likelihood would have proceeded on May 29, 2017 and at that time the total time would have been 11 months, which falls well below the presumptive ceiling stated in Jordan.
[44] While Her Worship appears to place significant emphasis on the fact that the defendant was represented by a "trained legal representative", I do not read her reasons as implying that a different standard should apply to unrepresented defendants in this context. On the contrary, there is support for the proposition that unrepresented defendants, like any other justice participant, can and should be held to same high standard and scrutiny contemplated by Jordan, supra.
[45] In the recent Nova Scotia Court of Appeal case of R. v. Potter; R. v. Colpitts, 2020 NSCA 9, Bourgeois, Van den Eynden, and Derrick JJ.A. stated:
[341] We see nothing in Jordan and the jurisprudence that has followed that restricts the deductibility of defence delay to represented accused. In our view, limiting deductible defence delay to those cases where an accused is represented would increase the potential for self-represented defendants to excessively and unreasonably extend proceedings. Such a result would be counter-intuitive to the Jordan framework.
[342] The trial judge's assignment of delay in this instance did not serve to impair Mr. Potter's and Mr. Colpitts' rights of full answer and defence. Accused persons can fully question the case brought against them and advance the arguments they believe respond to the charges. This includes challenges to evidentiary continuity. What must be understood, however, is that should an accused then seek to launch a s. 11(b) application, his or her decisions may be examined for legitimacy. Delay occasioned as a result of litigation choices, if found to be illegitimate, may be deducted. Such a result is compatible with Jordan's expectation that all participants, including defendants, have a responsibility to reduce delay.
[46] In R v Beckett, 2017 BCSC 1116, Beames J. writing for the British Columbia Superior Court noted at para 137:
[137] With respect to Mr. Beckett's status as a self-represented accused, it is inarguable that Mr. Beckett was self-represented by choice for the period of May 2013 until December 2014. As I will expand on later in these reasons, I conclude that he remained self-represented by choice until he retained Ms. Turko sometime in late 2015, even while he was making frivolous efforts to obtain state funded counsel when he was not financially eligible. During the time he was self-represented, he was of course entitled to the assistance of the presiding judges, and in my view, he received the assistance to which he was entitled, notwithstanding his conduct and attitude. He was not entitled to expect the presiding judges to become his counsel, or to provide him with legal advice, or to "save him from himself", to paraphrase Mr. Justice Meiklem. While his self-represented status is a factor to bear in mind while analyzing different periods of delay, it is not a shield behind which Mr. Beckett can hide to prevent the characterization of certain periods of delay as defence delay.
[47] While the system as it exists today in Toronto could certainly do more to inform unrepresented defendants of their right to disclosure, the fact remains that Mr. Moussaed did not educate himself, nor did he take any real steps to ensure that he was ready for his trial on October 31, 2018. On the contrary, he simply showed up. His failure to inform himself of his rights, and to order disclosure in a timely fashion, led directly to his request for an adjournment. For these reasons, I conclude that the ensuing period (5 months and 10 days) occasioned by the adjournment should be allocated as defence delay, and deducted from the overall delay.
3. Allocation of delay from April 9 (the second trial date) to August 12, 2019
[48] Mr. Moussaed was notified by the prosecutor's office that the DVD was ready for pickup on March 29, 2019, a Friday afternoon. Between that date and the trial date of Tuesday April 9, 2019, Mr. Moussaed acknowledges he did nothing, citing work commitments that made it difficult to find the time to attend the prosecutor's office within normal business hours to pick it up. In fairness to him, the window of time between being notified the disclosure was ready, and his trial, was very short. There was no evidence either way as to whether the prosecutor's office would have released it to a courier, or whether Mr. Moussaed pursued that option.
[49] Mr. Javadi, on his client's behalf, notes that Mr. Moussaed had waited almost five months for the DVD, and that it only became available a very short time before his second trial date. He adds that the defendant, in his opinion, was more than entitled to request an adjournment to review the evidence, and that the period of delay occasioned by the adjournment should not fall at his feet because the disclosure was only provided at the last moment. Mr. Javadi adds that there is a "real systemic problem" with the distribution of DVD evidence in Toronto. On that last point, I agree.
[50] Anyone familiar with the day to day operations of the traffic courts at Old City Hall quickly realizes that there is a significant backlog of approximately two months from when the DVD is ordered by the Prosecutor's office, until the Toronto Police Video Services Unit produces it. Once received by the Prosecutor's office, the DVD must be vetted due to privacy concerns. This creates a second period of delay. If upon vetting, the DVD contains personal identifiers or sensitive information, it must be redacted, causing a third period of delay.
[51] While there is no indication on the record before me that the DVD in Mr. Moussaed's case needed to be redacted, the vetting process has nevertheless led to a further but undetermined period of systemic delay.
[52] I would note in passing that it is now 2020. Most people no longer have DVD players at home, and most laptop computers available for purchase today do not have DVD players built in to them. In the age of YOUTUBE, where most people deal with their bank, utility company, telephone providers and other services online in real time, the current system of creating and distributing digital evidence is clearly both cumbersome and antiquated.
[53] I am confident the system will eventually catch up. No doubt, at some point in the future, defendants will be able to log into a server, maintained by, or managed with the cooperation of the Prosecutor's office, and view the video or audio evidence in their case on an internet browser, on their smartphone, while sitting on a bench outside the courtroom. That technology exists today. If implemented, it stands to reason that cases would be resolved more quickly, and with fewer court appearances, consistent with the objectives set out in Jordan.
[54] Common sense would suggest that it would have been unfair to the defendant if the Prosecutor's office had only advised Mr. Moussaed that the DVD was ready the day before trial, or even two days before trial. The fact remains that he was notified 11 days, or 6 business days prior to his trial date and did nothing.
[55] There is no evidence before me as to the whether the digital evidence on the DVD was relevant to any real issue at his trial. The vast majority of DVD evidence in traffic matters contains the recording from the in-car-camera and audio system used by uniform police officers while operating police cruisers equipped with this technology. Sometimes the DVD evidence shows the actual offence being committed. More often, it records only the interaction between the defendant and the police officer during which the officer checks the defendant's documents and issues the ticket.
[56] Had Mr. Moussaed taken steps to obtain and review this evidence prior to trial, he might have found himself in a better position to argue that he had legitimate grounds to seek an adjournment. Perhaps there would have been some complicating evidentiary wrinkle that came as a surprise to him, worthy of further investigation, entitling him to an adjournment on the merits. There is nothing in the record before me suggesting that.
[57] Given the evidentiary simplicity of most traffic cases, and the clarion call in Jordan, supra, requiring all justice participants to be proactive in moving cases forward, including defendants, whether represented or not, I am left questioning why the trial could not have proceeded on the second trial date (April 9, 2019).
[58] A similar issue arose in R v Jakhu, supra, another decision of Misener J. where she stated:
The Right to Disclosure
15 The defence has the right to disclosure. That said, defence counsel must exercise "due diligence in actively seeking and pursuing Crown disclosure": R. v. Dixon, [1998] 1 S.C.R. 244 at para. 37. Where the prosecution advises of the availability of disclosure and the easy means of obtaining it, the defence cannot sit idle until the trial date and then assert the right to make full answer and defence as a weapon to avoid a hearing of the trial.
16 Furthermore, as Mr. Justice Ghosh makes clear in R. v. Wei (December 22, 2017) (2017 ONCJ 878, [2017] O.J. No. 6785, citation added), the Court has a variety of means to protect the right to review disclosure depending on the type of disclosure, the seriousness of the charge, the complexity of the case and the nature of the proceedings. For Part I offences under the POA the right to review disclosure may be achieved by holding the case down so that the outstanding item can be reviewed on the trial date before proceedings are commenced. This solution is particularly appropriate in cases where the defendant has not been diligent in pursuing disclosure. Absent unusual circumstances, the remedy of permitting the defence some time on the day of trial to review disclosure and discuss the case with the prosecutor protects the right to make full answer and defence in Part I proceedings and fulfills the Courts' duty to ensure timely justice.
[59] And further at paragraph 20:
20 The presiding Justice of the Peace, who is very experienced, knew that the defendant could review the outstanding DVD and speak with the prosecutor if the matter were held down. The offence was disobey stop sign. It is commonplace for matters to be held down on trial dates for Part I offences while disclosure is reviewed and negotiations are undertaken: see for example R. v. Wei (December 22, 2017, Ghosh J.) and the cases cited therein and R. v. Bouzziz-Caruso (January 11, 2019, Rose J.). As the prosecutor noted in opposing the adjournment it was no secret that the best prosecution offer was a plea to disobey sign. The defence was already in possession of the written notes and aware of the prosecution's case. Either the very short DVD footage disclosed the offence or it did not, and it would have taken mere minutes to make that determination.
[60] Neither Jakhu or Wei were 11(b) cases, but rather appeals of the respective decisions of the presiding Justices of the Peace denying adjournment requests by defendants on their trial dates based on late disclosure. In both cases, the decision to deny the adjournment was upheld on appeal.
[61] Both cases illustrate the point that most traffic matters are simple in nature, and that problems relating to late disclosure can often be ameliorated by simply holding the matter down and allowing the defendant to review the disclosure before commencing the trial.
[62] In Mr. Moussaed's case, his failure to obtain the DVD disclosure prior to his trial, combined with the absence of any evidence suggesting that there was something about the DVD evidence that took him by surprise, I am left to conclude that the period from April 9-August 12, 2019 (approximately 4 months) should also be allocated as defence delay.
Conclusion
[63] Deducting both periods in issue as defence delay from the overall delay of almost two years, that being 5 months and ten days (October 31, 2018 to April 9, 2019) as well as 4 months (April 9, 2019 to August 12, 2019), I find that the net delay in Mr. Moussaed's case is just under 15 months. This is well below the presumptive ceiling of 18 months. There is no evidence before me that the case took significantly longer than it should of, or that Mr. Moussaed made sustained efforts to move the case along.
[64] Based on these reasons, the application for a stay of proceedings is dismissed.
Released: February 14, 2020
Signed: Justice of the Peace Scarfe