Ontario Court of Justice

Date: 2022 11 16 Court File No.: 5475950Z

Between:

Regional Municipality of Durham — AND — Pablo QUEZADA

Before: Justice of the Peace Kevin J.A. Hunter

Heard on: November 7, 2022 Reasons for Judgment released on: November 16, 2022

Counsel:

C. DOHERTY……………………………….……….…………for the Applicant QUEZADA A. NOGEURA……………...................………………………………...for the Respondent

JUSTICE OF THE PEACE HUNTER:

Introduction

[1] The Applicant seeks a stay of proceedings under ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms (Charter), claiming his right to have a trial within a reasonable time has been infringed.

[2] Agent for the Applicant appeared before me on November 7, 2022. I heard and summarily dismissed the application, with written reasons to follow. These are my reasons.

Facts

[3] On January 11, 2021, the Applicant was issued a Certificate of Offence under Part 1 of the Provincial Offences Act (POA). The certificate cited the Applicant for speeding, contrary to s. 128 of the Highway Traffic Act. The proceedings commenced when the Certificate of Offence was filed with the court on January 13, 2021.

[4] The Applicant filed a Notice of Intention to Appear, and a trial was scheduled for November 7, 2022.

[5] It is important to view this scheduling timeline through the lens of the COVID-19 global pandemic. On March 16, 2020, POA courts across Ontario were shutdown to stop the spread of the virus. Consequently, these courts experienced a mountainous backlog of charges, which remained in a state of limbo, unable to advance through POA courts.

[6] On January 25, 2021, POA courts resumed the process of scheduling hearings. During this process, the Respondent municipality made concerted efforts to identify those matters which could be effectively written off due to a lack of public interest in proceeding. As a result, thousands of charges were withdrawn in an unprecedented, fat-trimming exercise designed to ensure that matters of greater public interest be given scheduling priority. Once those more significant matters were accommodated, the focus turned back to scheduling less serious charges. The first trial of these matters was scheduled to be heard on September 10, 2021.

The Law

[7] The Applicant has the right to be tried within a reasonable time under s. 11(b) of the Charter. In R. v. Jordan [1], the Supreme Court of Canada advanced a new Charter framework to assist trial courts in characterizing pretrial delay. The Court focused on the concept of net delay and whether it breached a presumptive ceiling. For matters in the Ontario Court of Justice, including matters proceeding under Part 1 of the POA [2], the presumptive ceiling is 18 months.

[8] The steps to be taken in analyzing stay applications under the Jordan framework are as follows:

1. Calculate the total delay - the period from the charge to the end of trial.
2. Subtract defence delay from total delay, which results in the "net delay".
3. Compare the net delay to the presumptive ceiling.
4. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If the Crown cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
5. Subtract delay caused by discrete events from the net delay (leaving the "remaining delay") for the purpose of determining whether the presumptive ceiling has been reached.
6. If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
7. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

Analysis

[9] In calculating the total delay, the Jordan clock starts ticking when the proceeding commences. For Part 1 POA matters, the proceedings commence when the Certificate of Offence is filed with the court, not on the date of the offence nor when the Certificate of Offence was issued.

[10] The total delay in this case, from the date the Certificate of Offence was filed with the court (January 13, 2021) to the trial date (November 7, 2022), is a few days shy of 22 months.

[11] No period of delay is attributable to the defence. Therefore, the almost 22-month total delay is also the net delay and is presumptively unreasonable.

Discrete Event – COVID-19 Pandemic

[12] This presumption of unreasonableness is rebuttable by the existence of exceptional circumstances. The only exceptional circumstance the Respondent seeks to rely upon is the discrete event of the COVID-19 pandemic. The Applicant concedes that the pandemic is a discrete event but submits that it only accounts for 12 days of delay: from when the Certificate of Offence was filed with the court (January 13, 2021) to when the court began the process of rescheduling trials (January 25, 2021).

[13] I disagree. The pandemic has resulted in a sweeping transformation of the way we do things in many aspects of our lives. The necessary reimagination of the way justice is administrated in this province is no different. Despite the tremendous accomplishments of the justice system in achieving a workable virtual system in a short time frame, backlogs and scheduling pressures continue to mount as we prepare for yet another wave of infections in Ontario. The pandemic is by no means over, nor are the scheduling delays it has caused. This discrete event, which disrupted operations to their core, did not simply end when the trial resumption process began.

[14] And yet, the pandemic cannot be relied upon indefinitely as an exceptional circumstance to justify delays which exceed the presumptive ceiling. As various courts reimagine their operations, periods of delay properly attributable to the pandemic will depend on the measures employed by each jurisdiction.

[15] As for Durham Region, the process of scheduling POA trials recommenced on January 25, 2021. The first of those trials were scheduled to be heard on September 10, 2021. The Applicant urged the court to categorize this period as institutional delay, citing the dissent in Jordan. However, to do so would be an error in law since the Jordan majority rejected the consideration of institutional delay. In my view, this 7½ month period is part of the discrete event.

[16] To be clear, in determining the delay attributable to the discrete event, the period from when the trial scheduling process resumed to the date of the first scheduled trial may only be a starting point. The delay caused by the pandemic is arguably longer. However, in this case, I need not consider any further period of delay. This is because when the 7½ months that I have attributed to the discrete event is subtracted from the nearly 22-month net delay, the remaining delay is approximately 14½ months, well below the presumptive Jordan ceiling. Consideration of any further pandemic delay becomes moot.

[17] Thus, the onus shifts to the defence to show that the remaining 14½ month delay is unreasonable. The Applicant advanced no such submissions.

Conclusion

[18] After calculating the remaining delay, I have concluded that it falls below the 18-month Jordan ceiling and is not unreasonable. As a result, I find that the Applicant’s s. 11(b) right to a trial within a reasonable time has not been infringed. The application is dismissed.

[1] R. v. Jordan 2016 SCC 27, [2016] 1 S.C.R. 631 [2] R. v. Nyugen 2020 ONCA 609