ONTARIO COURT OF JUSTICE Central West Region

Andrijana Milica Drmic -and- His Majesty the King

Proceedings conducted: May 4 and 5, 2023 at City of Hamilton, Ontario Decision and Reasons issued: May 16, 2023

Appearances: R. Woloshyn-Chick, for the Crown J. Walters, for the defence

Statutes Considered or Cited:

• Canadian Charter of Rights and Freedoms, 1982, ss. 11(b)
• Highway Traffic Act, R.S.O. 1990, c. H.8, as amended

Cases Considered or Cited:

• Ontario (Ministry of Government Services) v. Cachet Partners Inc., 2022 ONCJ 1092
• R. v. Allison, 2022 ONCA 329
• R. v. Jordan, 2016 SCC 27
• R. v. Villenti, 2018 ONSC 4259, appeal dismissed, 2020 ONCA 755
• R. v. Koorovchenko, 2022 ONSC 3896
• R. v. Greenidge, 2021 ONCJ 57
• R. v. Denys Shadrin (unreported)

Decision of the Court

[1] On May 4, 2023, the Applicant, Ms. Drmic, brought a Motion of a Constitutional Question, pursuant to s. 11(b) of the Charter of Rights and Freedoms. Having regard to the time sensitivity, I made an oral ruling, granting the Motion, and ordering stay of the proceeding. I further indicated I would provide these written reasons to follow.

Framework

[2] The framework for determining whether a motion for a stay of proceedings should be granted pursuant to s. 11(b) of the Charter, was updated by the Supreme Court of Canada, in R. v. Jordan. Subsequent decisions have affirmed that the framework applies to provincial offences matters.

[3] Simply, the Court in R. v. Jordan are set out a framework for determining whether the right to trial on a timely basis pursuant to s.11(b) of the Charter has been respected. The framework is found in paragraphs 46 through 48 [1] of that decision.

[4] In this case, it is clear that the total delay (from the swearing of the Information until the scheduled trial date of 25 July, 2023 runs slightly in excess of twenty and a half months.

[5] The Court in R. v. Jordan established, “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.”

[6] I will now turn to the background of the matter before me.

Background and Evidence

[7] Ms. Drmic was charged with the offence of careless driving, pursuant to s. 130(1) of the Highway Traffic Act, based on events said to have occurred on 11 July, 2021.

[8] The Court records indicate that the Information was sworn remotely (001795) on 05 November 2021, at which time a s.24 summons was requested to compel the attendance of the defendant at court [2].

[9] The defence took the position that the defendant had been served a Part I Offence Notice on the date of the alleged offence, that is 11 July, 2021. As such, the defence position asserts that the calculation for the purposes of a delay calculation would run from the date the defendant was charged by way of a Part I Certificate of Offence (or perhaps, such later date as that was filed with the Court).

[10] The Crown materials include a sworn affidavit by the investigating officer, asserting “I hereby confirm that the charge against Ms. Drmic was brought via a Part III summons. No Part I ticket (sic) was issued in respect of this charge.”

[11] This fails to indicate the date that any Part III summons was issued. It is not clear whether it was a s.22 Part III summons issued at or about the time of the alleged offence, or a Part III summons requested at the time the Information was sworn. There is no record of any s.22 summons attached to the Court record.

[12] The matter was set for trial on November, 21, 2022. The trial was estimated to run two hours, which was more than the time available on the tier, so additional time was meant to be reserved on the tier following.

Issue with Service

[13] The s.24 summons was not served, and a s.54 summons was issued after the matter came before the Court on the return date of the s.24 summons. The defendant eventually appeared on the return date of the s.54 summons.

[14] Included in the Court material are, along with the Information, two documents appearing to be records of police efforts to serve the above-mentioned summonses. They are not recorded as exhibits. These indicate that police received information that the defendant did not live at the address. There is no detail as to who provided that information or to whom (the officer attempting service).

[15] Further, similarly without evidence, the defence position is that the defendant did not in fact move, and was servable at the address. No one could address the apparent conflict in regard to the ability to serve the defendant.

[16] Parties agreed that, absent evidence, I could not draw any conclusion other than that the defendant was served and in due course attended.

Progress of the Case

[17] Shortly after the first appearance, the defendant conducted a Crown resolution discussion, determined that the matter should proceed to trial, after which she retained counsel, who shortly thereafter held a further pre-trial.

[18] Two case management dates were cancelled pursuant to an Order of the Regional Senior Justice of the Peace, under s. 49(5)(b), for “lack of judicial resources”.

[19] There is no evidence as to if or when the defence conveyed its intention to seek a trial date, nor whether any efforts were made by either the Crown or defence to obtain a trial date, prior to the 21 November, 2022 appearance.

[20] Eventually, the matter appeared before me on 21 November, 2022, and the trial was set for the July date.

[21] This date was, on its face, beyond the eighteen month timeline contemplated by R. v. Jordan.

The Charter Application

[22] On the day that the trial was set, defence notified the Trial Coordinator (TC) of its intention to bring a motion to seek a Charter remedy for undue delay.

[23] The TC immediately noted that the defence e-mail message with the request for a date to address the Charter application was copied to the Part I municipal prosecutor. The TC recognized that this is a Part III matter, involving the Part III Prosecutor, who was then “looped in” to the e-mail chain. A return date was fixed for the matter to be heard by motion on March 22, 2023, by zoom, apparently the first date offered by the TC.

[24] On the return date, the presiding justice noted a deficiency in service, and the matter was put over to May 5, 2023, when it was addressed, based on the original materials together with confirmation that the service issues had been addressed.

The Position of the Parties

[25] The parties agree that the delay, as a minimum, runs from the date the Information was sworn to the trial date. That period is just over twenty and one half months and presumptively grounds to establish a Charter breach.

[26] Apart from the submission regarding the delay arising from not serving the defendant, the Crown argues that delay was caused by the lack of judicial resources and the inability to set dates earlier. No evidence was provided as to how those adjournments delayed setting the trial date earlier. For example, the Crown was unable to identify whether it was or was not aware of the defence position that this was a trial matter, or whether any effort was made to request a trial date from the TC, or what reasons existed, if any, for being unable to obtain such trial dates.

[27] As a third position, the Crown submitted on general principles that the pandemic gave rise to some part of the delay.

[28] The defence sought to attribute the period from the date of the alleged offence until the swearing date, presumably because it asserted that the matter had started as a Part I on the date of the alleged offence, and, once the Part I Certificate of Offence had been issued, the defendant was then “charged” and the Jordan timeline was commenced.

[29] Curiously, defence did not produce a copy of any Part I Certificate of Offence. Further, while it appears that the resolution discussions engaged the Part III Crown Prosecutor, it is unclear why defence included the Part I Municipal prosecutor in its request for a date to address the Charter motion.

Analysis and Conclusions

[30] I start by addressing the date from which the Jordan calculation begins.

[31] Once again, I note that I have no evidence about how this matter came before the Court, apart from the Court records themselves. As such, I have no evidence of any Part I Certificate of Offence having been issued, or any s.22 summons.

[32] As such, I cannot accept the defence proposition that the calculation of time starts on the alleged offence date.

[33] The Crown adopts the reasoning in R. v. Allison, 2022 ONCA 329. In that case, the Ontario Court of Appeal follows the reasoning of the Supreme Court that the calculation of time starts from the date on which a defendant is charged (emphasis mine) with an offence. Had the defence been able to establish that a Part I Certificate of Offence been issued, the argument may have had greater possibility of success, however, I cannot find that to be the case in this proceeding.

[34] Further, I am troubled by the profound lack of evidence in support of either position on this motion. At the outset of the matter, I asked whether the parties would be tendering any evidence, and was told “no”. This position was, I expect, meant to be apart from the sworn affidavit of the investigation officer, mentioned above.

[35] That said, within moments of the beginning of the defence submissions, attention turned to alleged “facts”, including the defence assertion that the matter had started by way of Part I Certificate of Offence, as well as the Crown position that the matter started by way of a Part III summons, without explaining whether that was a s. 22 summons (laid by the investigating officer at the time of or shortly after the investigation) or s. 24 summons (after the Information was sworn), or both.

[36] In addition, submissions turned to comments about police being unable to serve the summons(es), and the continuity of residence of the defendant at the address listed for service on the summonses themselves.

[37] The Crown referred to a transcript of the first appearance in relation to this matter on the return date of the first s.24 summons, 06 April, 2022. The Court record reads as follows:

Court Reporter: Yes, I have a signed statement from Her Worship Walker and then from the CPIC of the summons server, at the bottom, they moved, unable to locate for service.

The Court Reporter goes on the indicate there was no proof of service for the summons.

[38] It appears that after further exchange between the Court and the Provincial Prosecutor, the Court issued a further summons, and the Prosecutor undertook to have police follow up with further MTO inquiries as to any updates to address for service.

[39] In my view, this is not evidence. The “CPIC of the summons server” is likely a document prepared by police to report on progress on or challenges to serving a summons. This is not evidence until properly tendered before the Court, typically in support of seeking a warrant in the event there are grounds to believe a defendant may be evading service or un-servable.

[40] In a parallel fashion, any statements by the defence asserting that the defendant had not moved cannot be admissible evidence, absent an uncontested affidavit setting out such a claim, or viva voce evidence subject to cross examination and accepted by the Court.

[41] As such, I am unwilling to find that there was any delay attributable to the defence as a result of an unreported change of address.

[42] In relation to the Crown position that this matter was impacted by lack of judicial resources, I am unpersuaded.

[43] Once again, I am faced with a lack of evidence. I will address this issue further below in relation to the third leg of the Crown submissions, however, I have nothing before me to explain how lack of judicial resources precluded setting the matter earlier.

[44] It is clear that defence took clear steps to move the matter to finality. The defendant promptly participated in a self-represented Crown resolution discussion. Upon determining this was a trial matter, she promptly retained counsel, who also held a Crown resolution discussion. The matter was still not resolved and was understood to be a trial matter.

[45] I have no evidence whether the Crown engaged with defence and the TC to obtain trial dates. I understand that trial dates could not have been put on the record on the two dates which were adjourned administratively due to lack of judicial resources. That said, had an early trial date been available, a bring forward could have been arranged for the trial date. Were the date to be after the next appearance before an available justice, it could then have been confirmed on the record.

[46] Likewise, I have no information about the availability of any witnesses, or trial courts. Again, I understand dates were being vacated, on some occasions with little to no notice, for want of judicial resources. However, I have no evidence regarding efforts to set trial dates.

[47] Finally, I have no information as to why there was a lack of judicial resources. Was this connected to the pandemic and any ongoing impacts? Were there other reasons, such as appointments (or lack thereof) of judicial officers?

[48] It is clear that the courts had to close for lack of judicial resources, often at the last moment. I am aware of the decision of my brother justice, Bourgeon, JP, in Ontario (Ministry of Government Services) v. Cachet Partners Inc., 2022 ONCJ 1092, addressing having to re-schedule a matter for want of a judicial resource.

[49] That matter dealt with post conviction/pre-sentence delay, apparently triggered by some circumstance involving the presiding justice.

[50] There is a different case R. v. Villenti, 2018 ONSC 4259 (also referenced by HW Bourgeon), from the Ontario Court of Appeal that similarly addressed lack of judicial resources. These cases appear to turn on circumstances involving individual judicial officers.

[51] The Crown invites me to take notice of local conditions and circumstances, specifically in relation to the third leg of its submissions. Were I to do so in this case, I would be concerned that the lack of judicial resources may not be preponderantly due to the pandemic and may be a result of other factors.

[52] Finally, the Crown Prosecutor asks me to take notice, pursuant to the principles set out in a decision of Leitch, J in R. v. Denys Shadrin (unreported),

[53] At the risk of over-simplifying the rationale set out by Justice Leitch, he accepts that the Court need not necessarily be bound by a precise or statistically analysed causal relationship between the distinct event (the pandemic) and the delay. He accepts that a presiding judicial officer can take judicial notice of local conditions and practices that are in play as a result of the exceptional circumstance (the pandemic).

[54] In R. v. Shadrin, he attributed 90 days to the ongoing and need to allow the effects of the pandemic to work their way through the system.

[55] That is enticing.

[56] I note that Justice Leitch also placed extensive reliance on R. v. Koorovchenko, 2022 ONSC 3896. That case relies in turn on the case of R. v. Greenidge, 2021 ONCJ 57, which states:

Having said all that, it is not sufficient for the Crown in this case to point to the pandemic as an exceptional event and then say that it sought to provide an earlier trial date in the SCJ. This misses a critical point in the legal analysis. In my view, the Crown must prove that the delay it seeks to deduct from the overall delay was actually caused by the pandemic (emphasis mine). The Supreme Court in Jordan at paragraph 75 said that the "the period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded" (my emphasis).

[57] Before continuing, I note that this is a case which commenced after resumption of Court proceedings in relation to Provincial Offences matters, on January 21, 2021, pursuant to a direction of the Chief Justice of the Ontario Court of Justice. Of course, the re-opening of the Court to addressing matters does not mean things returned to pre-pandemic operational norms.

[58] So, while it is easy to be forgiving of delay “because of the pandemic”, it may mask an underlying malaise, of no attention being paid to continuing practices which fail to reduce the impact of delay appropriately. This approach is of course set out by the Supreme Court in its seminal decision of R. v. Jordan, at paragraph 70, in which the court said:

It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court or seeking assistance from the defence to streamline evidence or issues for trial or to co-ordinate pre-trial applications or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful – rather, just that it took reasonable steps in an attempt to avoid delay;

[59] Ultimately, Justice Leitch observed:

The pig is still in the python. Eventually, it can be said that the delays are no longer attributable to COVID-19. Full digestion will have occurred. Cases that were set for trial in 2020 to 2022 will have varying COVID-19 delay effects. As time progresses, courts will expect the Crown to ameliorate the backlog by separating the wheat from the chaff, by purging cases through whatever means, resolving cases that can be settled, prioritizing the most serious case, which should be tried on the merits.

[60] There is no doubt that serious efforts have been and continue to be made to address the impacts of the pandemic on Court operations.

[61] That said, the absence of any evidence to demonstrate whether any effort to determine whether this is a case that needs to be tried took place, whether it was given priority, for example, by obtaining timely dates that could have been put on the record once a court was available to set it (or to bring the matter forward if an earlier trial date was available) is concerning. By simply relying on blanket or impressionistic assessments of reasons for delay, there is a risk that underlying systemic issues are masked and ignored.

[62] I note as well that the date offered by the TC was some four months after the issue of delay was specifically raised by the defence, and as well that the Provincial Crown has specific knowledge of that time gap. There is no evidence that the four months was a result of COVID-19 impacts. While I might be tempted to accept that it makes sense that it would be so, I am loath to do so absent some evidence beyond taking notice of current circumstances, as doing so would require subsuming for too many unknown variables.

[63] I also note that the hearing of the motion consumed almost two hours of court time. Given that the matter was scheduled for a two hour trial, one wonders whether court time might better have been utilized to hear the trial and not the motion. There was no information made available regarding efforts to consider this, or whether there were reasons for being unable to do so, such as unavailability of counsel or witnesses,

[64] I understand that the Crown is not required to pay individual attention to each and every case making its way through the system.

[65] Significant procedural changes have been made.

[66] Both Part I Prosecutors and Part III Provincial Prosecutors have made significant efforts to vet lists of outstanding and dated matters and have withdrawn cases in the hundreds, if not thousands. Favourable resolution positions are being offered where possible to address other matters expeditiously. Files are being updated and reviewed.

[67] That said, on the same day I made my ruling on this matter, I continued with my Part I list. I had some five trial matters on my 10:30 docket, one of which had been adjourned to the trial date only some six weeks earlier (that is to say, not administratively but a result of an in-court adjournment request), and which the prosecutor withdrew because of inability of provide disclosure. The matter was already quite dated. It is unclear why that circumstance was not apparent earlier and the inevitable step taken, making valuable trial time available for truly necessary and viable matters There is significant downtime not being used effectively.

[68] The Court seems still be involved in devoting much time to early resolution tiers (clearly, Part I matters), diverting resources from presumably more critical Part III matters.

[69] I remind myself that efforts by the prosecution need not necessarily be successful. That said, in this case, there was a clear issue of delay. There are grounds to believe the matter would be a trial matter and no information was provided about how these kinds of matters were being managed to ensure trial dates were being set. Even once the TC shared the request to set a date to hear the delay motion, it took almost four months for the matter to appear on the docket.

[70] I note again that in R. v. Shadrin, Justice Leitch allotted ninety days for COVID-19 related delays. That was a criminal matter and perhaps more elasticity would be warranted.

[71] For the net delay to fall below the eighteen-month period (after reduction for exceptional circumstances, if any) set out in R. v. Jordan, I would have to be prepared to deduct just under eighty days from the overall total of 627 days. Even were I to make allowances for the COVID-19 induced impacts, I would not be prepared to deduct those required eighty days. Given that, I am satisfied that the net delay exceeds the time limit set out in R. v. Jordan.

[72] For these reasons, I grant the stay application.

Issued at City of Hamilton, Ontario, May 16, 2023

His Worship Donald Dudar Justice of the Peace

Footnotes

[1] [46] At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry). [47] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow. [48] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.

[2] The Statement of the Provincial Offences Officer was actually signed on the 03rd day of November, 2021, but the Information was accepted by a Justice on the 05th. Without explanation, the Crown Prosecutor materials suggest the Information was sworn on November 21, 2021, clearly not consistent with the Court record.