Court File and Parties

DATE: 2022 06 20 Court File Number: 4863 999 18342938 00 ONTARIO COURT OF JUSTICE (Toronto Region)

HER MAJESTY THE QUEEN Ex. Rel. City of Toronto RESPONDENT

— and —

ANDREA MORALES APPLICANT

BEFORE HIS WORSHIP MOHAMMED BRIHMI

Heard: May 30, 2022, and continued June 20, 2022 Judgment: June 20, 2022

Counsel: Gabriella Ruta and Andrea Ross, Prosecutors on behalf of the Respondent Simon M. Brown, Agent on behalf of the Applicant

Andrea Morales, Witness

Andrea Morales (54 paras)

RULING ON SECTION 11(b) CHARTER APPLICATION

M. BRIHMI J.P.

INTRODUCTION

[1] The Applicant, Andrea Morales, was charged between March 23, 2018, and September 13, 2018, with make, cause, or permit noise or vibration that is likely to disturb the quiet, peace, enjoyment, comfort or convenience of the inhabitants of the City of Toronto contrary to Toronto Municipal Code Chapter 591-2.

[2] This charge is prosecuted as a Part III proceeding under the Provincial Offences Act, R. S.O. 1990, c. P.33 (POA).

[3] The information was sworn and the defendant was served with a summons on or about November 7, 2018, with a first appearance date of December 15, 2018.

[4] On May 30, 2022, the Court was provided with an application for production of records in the possession of a third party (“O’Connor Application”) and this 11(b) motion. The 11(b) motion was heard first as it could have an impact on the court’s decision to consider the O’Connor Application.

[5] Extensive material, including caselaw from both the Applicant and the Respondent was provided and reviewed.

[6] After hearing arguments and parts of the submissions, the matter was adjourned to June 20, 2022. An oral decision with regard to the 11(b) motion was given, with written decision to follow.

THE POSITION OF THE PARTIES

[7] Counsel for the Applicant, Mr. Simon M. Brown, submits that the total time for this case (November 7, 2018) to the anticipated end of trial (June 30, 2022) is 44.7 months. When adjusting the time for the Covid-19 pandemic, we are left with a total of delay of 28 months and 5 days.

[8] The Defence further submits that there was no delay attributable to the Applicant and there were no other exceptions (discrete events, case complexity, or “transitional case exception”) that can justify the delay in this case and nullify a stay of the proceedings.

[9] The Defence alleges that the right of the Applicant to a trial within a reasonable time has been severely and irreparably breached contrary to s. 11 (b) of the Charter. They submit that the charge against Andrea Morales should be stayed pursuant to s 24 (1) and 11(b) of the Charter.

[10] The Prosecution disagrees with the defence in regard to the attribution of the delay and seeks a dismissal of the application. The Respondent submits that Andrea Morales was not ready and was not prepared for her trial on February 3, 2020.

[11] The Prosecution allocates the refusal of the Applicant to set a trial date at the earliest opportunity, the re-estimation of numerous trial times and the lack of readiness on the part of the Applicant contributed to the delay in setting the trial date. All of which are solely attributable to the Applicant.

[12] The Respondent submits that the calculation of time should be as follows: 1,314 (total time) - 694 (discrete event) - 205 (defence delay) = 415 days or approximately 13 and a half months.

THE ISSUES

[13] The issues this case raises and what needs to be addressed are as follows:

• How much delay can be attributed to the exceptional circumstances of the Covid 19 pandemic and whether the delay was reasonable in the circumstances?
• How much delay is attributable to the defence and did the Applicant take the necessary actions to expedite the proceedings?
• Is the delay for this case attributable to the prosecution due to not providing full disclosure in the timely manner to the Applicant to make full answer and defence?
• Is the bylaw containing the Toronto Municipal Code charging offence, Chapter 591-2 a third-party record, and does the prosecution have an obligation to provide it to the defence?

PROCEDURAL HISTORY

[14] The following table is a summary of the Court analysis of the history of the proceedings from the transcripts, the evidence of the defendant Andrea Morales and the submissions for court dates and appearances:

Date Purpose Next Court Date Time Defence Delay

November 7, 2018 Information sworn Summons served December 15, 2018 38 days

December 15, 2018 First appearance, initial disclosure provided to the defendant February 15, 2019 62 days

February 15, 2019 Pre-trial Discussion and request of further disclosure March 29, 2019 42 days

March 29, 2019 Follow up on further disclosure. Pre-emptory on prosecution for a response Prosecution seeks May 3 and defendant asks for May 31, 2019 35 days May 3 to 31 = 28 days

May 31, 2019 Initial pre-trial discussions conducted July 19, 2019 49 days

July 19, 2019 Additional disclosure provided September 20 offered defendant choose September 27 July 19-September 20 = 70 days September 20-27 = 7 days

September 27, 2019 Trial date is set February 3, 2020 129 days

February 3, 2020 Trial date vacated. Defendant not ready to proceed. She has not familiarized herself with the bylaw for the allegation. She declined earlier JPT dates March 26, 2020 52 days

August 18, 2020 JPT held September 18, 2020 Because of Court closure (Nil)

September 18, 2020 JPT continued and completed February 18, 2022 Continued court closure (Nil)

February 18, 2022 Defence brought an 11(b) motion and contemplated another motion in the set date court, even though the matter was marked to be spoken to. The presiding justice agreed with the prosecution to adjourn the matter to the proper court to deal with the motions March 23, 2022 Covid closure – 694 days 33 days

March 23, 2020 Transcripts are missing* Two motions were filed to be heard. Defence did not have instructions to enter a plea on behalf of the client. Motions were not heard. A trial date was set. May 30, 2022 June 16 and 17, 2022 (Trial dates vacated)

May 30, 2022 11(b) motion was heard and not finished. New trial date was set for June 20, 2022 June 20, 2022 89 days

Total 1119 Total 209

LEGAL FOUNDATION

[15] The Canadian Charter of Rights and Freedoms (“Charter”) has provided that if a court has determined that a breach of an individual's s.11(b) Charter rights has occurred, the only remedy available is for the court to impose a Stay of Proceedings.

[16] The Supreme Court of Canada landmark decision of R. v. Jordan, 2016 SCC 27 established the present framework and guidelines for considering, calculating delays and deciding whether a stay of proceedings is warranted. The Supreme Court established 18 months ceiling for trials in the Ontario Court of Justice.

[17] The Ontario Court of Appeal confirmed in R. v. Nguyen, 2020 ONCA 609 that the 18 months ceiling applies to proceeding under Part 1 of the POA. Therefore, this ceiling applies to Part III of the POA.

[18] If a trial exceeds the presumptive ceiling of 18 months, the delay may be considered as “unreasonable”, and the court may award a Charter remedy for the s 11(b) breach by staying the proceedings.

[19] In this framework of the Supreme Court, once the presumptive ceiling is exceeded, the burden lies with the prosecution to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Prosecution's control if (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted.

[20] For trials that are below the presumptive ceiling, the defence bears the onus to establish that the delay is unreasonable.

[21] The Defence must establish two things: (1) it took meaningful steps to demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.

DEFINING DEFENCE DELAY

[22] The first step in the calculation of the period of delay for the Jordan analysis is to identify, calculate and subtract any "defence delay" from the total to arrive at the net delay.

[23] The meaning of the defence delay is addressed extensively in both SCC decisions R. v. Cody, 2017 SCC 31 and Jordan as well as in other court decisions to include delay that is solely and directly caused by the defence and the defence actions that are considered illegitimate, frivolous and/or without value in responding to the charge(s). The Defence delays also include the defence being unavailable to act and move a case forward where both the Court and the Crown are ready.

[24] The Court must evaluate each court appearance in the matter, the stage of the proceedings and the purpose and steps taken between appearances in assessing delay. The Defence delay are not the actions, applications or requests that are reasonable and legitimately taken, to respond and make full answer and defence to the charge(s).

COVID-19 PANDEMIC AS EXCEPTIONAL CIRCUMSTANCES

[25] The new framework of the Supreme Court in Jordan (paras 68-69, 71 and 75) requires an assessment of cases with the total delay that exceeds 18 months. In those cases, similar to this application, the court must assess if the delay is caused by the exceptional circumstance. The portion of the delay calculated must be subtracted from the total delay to assess the net delay and determine if it is over or below the presumptive ceiling time of 18 months.

[26] Those exceptional circumstances are events outside the control of the Prosecution and are reasonably unforeseen or unavoidable.

[27] The COVID 19 pandemic has been recognized in various cases as an exceptional circumstance that is recognized in Jordan as a discrete event for the purposes of a Charter 11(b) analysis. As outlined in R. v. Simmons, 2020 ONSC 7209, paras 68-72 Justice Nakatsuru held that “the proper approach to deducting COVID-19 delay was to attribute the entire time period from the closure of the court to the new trial date: First, while the jurisprudence about COVID-19 as a discrete exceptional event within the meaning of s. 11(b) is relatively new, most trial courts have deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed to only the time period where trials have been actually suspended: R. v. Gutierrez, 2020 ONSC 6810 at paras. 11 - 20; R. v. Cathcart, 2020 SKQB 270, [2020] S.J. No. 415, at para. 20; R. v. Folster, [2020] M.J. No. 187 (P.C.) at paras. 29 - 30; R. v. Ismail, 2020 BCPC 144, [2020] B.C.J. No. 1228, at para. 155; R. v. Harker, 2020 ABQB 603, [2020] A.J. No. 1091, at para. 23. The Court must consider that this argument is not only about a discrete event, but rather how the pandemic has delayed this case and how the prosecution acted to mitigate this delay”.

[28] It is clear to the Court that both parties agree on the fact that the COVID-19 global pandemic is an exceptional circumstance which impacted the normal proceedings of the court. But in the same breath, both parties disagree on how much of this delay can be attributed to this exceptional circumstance.

MY ANALYSIS OF THE CALCULATING OF THE DELAY

[29] The case at hand, there is a total delay of 1322 days (Equivalent to 3 years, 7 months, and 13 days) from the charging date of November 7, 2018, to the anticipated trial date of today, June 20, 2022. In addition, when I subtracted the defence delay of 209 days, the Court is left with a net delay of 1113 days (or approximately 3 years (36 months) and 23 days).

[30] This delay exceeds the presumptive ceiling of 18 months, and the prosecution has the onus of rebutting the presumptive ceiling.

REBUTTAL OF THE PROSECUTION AGAINST THE PRESUMPTIVE CEILING

[31] In taking into consideration the rebuttal of the prosecution, the Court accepts that on February 3, 2020, the prosecution and the court were ready to start the trial of Andrea Morales. This matter was a priority for the Respondent, and they stated their concerns on how long it has taken to proceed.

[32] The Court also accepts that the Applicant was not ready for her trial. She had not reviewed and familiarized herself with the charging section of the bylaw that was provided to her by the prosecution that would apply to her case the same day.

[33] In addition, it is clear that the prosecution had provided Andrea Morales with the initial disclosure and all the materials in their possession that they would rely on, from the time this trial date was set on September 27, 2019.

[34] Furthermore, the Applicant declined to participate in a JPT to expedite her matter for earlier dates, and she selected March 26, 2020.

[35] The Court accepts that the Representative of Ms. Morales, indicated during the JPTs that he would bring further motions that changed the estimate of the required time for the trial and delayed it further. The Applicant’s representative also did not reach out to the prosecution and declined to set a new trial date on the first date back in court, on February 18, 2022.

[36] On March 23, 2022, the court was ready to deal with the Applicant’s 11(b) motion, but Mr. Brown did not have the instructions to enter a “not guilty” plea which delayed this matter further.

[37] In considering the motion, the Court accepts that the exceptional circumstances of the Covid 19 pandemic limited the actions of the prosecution when the POA courts closed their operations by order of the Chief Justice. There was little the prosecution could have done, except to conduct two JPTs.

[38] The Court calculates the start of the Covid 19 pandemic as a discrete exceptional event from March 26, 2020, instead of March 16, 2020 when the POA courts closed, to the first date the matter was returnable to court on February 18, 2022 which gives a delay of 694 days.

NET DELAY

[39] The net delay for this case is as follows:

• 1322 (total delay) – 694 (discrete event) – 209 (defence delay) = 419 days or approximately 13 months and 23 days.

[40] This net delay of 419 days is below the presumptive ceiling and shifts the onus back to the defence to establish that they took meaningful and sustained steps and actions to expedite the proceeding for this case as in Jordan (paras 84-85).

DEFENCE DELAY

[41] The Court does not agree with the Applicant when they attribute the delay for this case to the prosecution, with exception to the Covid-19 pandemic time deducted.

[42] The Court understands and takes into consideration that Andrea Morales was self represented in the early part of her trial. However, when the court ordered a return date to set trial dates or to have JPTs on February 3, 2020, she chose not to start her trial and preferred later dates which added to the delay of this case.

[43] The Court has determined that her Representative bears the onus for the defence delays on two occasions: On February 18, 2022 when he tried to have two motions heard in a set date court and then on March 23, 2022 when he did not have the instructions to enter a “not guilty” plea to start the arguments of his motions.

IS THE DELAY ATTRIBUTABLE TO LACK OF DISCLOSURE?

[44] The Applicant has submitted that the Applicant did not choose to delay her matter. She claims she was not provided what the Representative called the first party disclosure before her trial. However, the DVD was provided on September 18, 2020, and on December 16, 2020, she received the uncertified copy of the Bylaw.

[45] In her evidence, Andrea Morales testified that she had received the initial disclosure and the first copy of the bylaw on the first trial date of February 3, 2020. The prosecution submitted that they had provided the Applicant with all the materials in their possession that they were going to rely on.

[46] The Court accepts that defence has a right to disclosure, however, this right is not absolute according to Stinchcombe. It is clear to the Court that the Applicant had most of her disclosure and could have started her trial earlier. These are parts of the non-action attributed to the defence to have this matter dealt with quickly and efficiently as possible.

[47] In addition, there is plenty of case law that finds the purpose of the POA, as well as municipal regulation, is to ensure that defendants have a forum for a speedy, efficient and fair resolution to their matters.

IS THE BYLAW CONTAINING THE TORONTO MUNICIPAL CODE CHARGING OFFENCE, CHAPTER 591-2 A THIRD PARTY RECORD? AND WHEN DOES THE PROSECUTION HAVE AN OBLIGATION TO PROVIDE IT TO DEFENCE?

[48] The Defence referred to the decision of HW McMahon in Greater Sudbury (City) v. Thibert, 2019 ONCJ 318 at paras 7-21 that stated: “proof of a municipal bylaw is essential to the prosecution’s case”.

[49] The Applicant also referred to R. v. Colquhoun, 2019 ONCJ 475 in which Justice Schwarzl indicated that a certified by-law must be adduced in the normal course of presenting evidence at any given trial where the defendant is then able to contest the admissibility of the document.

[50] With respect, this Court does not agree with the Applicant that a copy of the bylaw is subject to first party disclosure rules as per Stinchcombe. The by-law in question is a public document that is available to defence. Furthermore, it is not the fruits of the investigation of this case and a copy of the charging bylaw was provided to Ms. Morales on her first trial date.

[51] The Court agrees with that “In the Usual course of proving the by-law by way of the statute, the Prosecution will formally tender a certified copy of the by-law as an exhibit before the close of the case” as stated in Greater Sudbury (City) v. Thibert, at para 15. This is the normal procedure in trial courts when dealing with the municipal bylaws.

[52] The Court of Appeal of Ontario in The Regional Municipality of York v. McGuigan, 2018 ONCA 1062 never indicated that the user manual is subject to first party disclosure rules, and it should be characterized as “fruits of the investigation”. At para 114, Justice Watt wrote: "The applicant judge was therefore correct in finding that user manual excerpts of the testing and operating procedures are not the “fruits of the investigation”. She erred, however, in failing to recognize that the testing and operating procedures qualified for first party disclosure through the second branch described in Gubbins as “obviously relevant” information.

[53] This Court does not agree with the Applicant’s interpretation of the Ontario Court of Appeal in McGuigan in regard to what constitutes a third party record. Therefore, the bylaw as a document falls outside the first party disclosure regime.

CONCLUSION

[54] While this case has taken a long time and looking at all the circumstances, the Court is satisfied that the Applicant has not met their onus to show that the delay was unreasonable and concludes that the defence application for an 11(b) motion has been dismissed.