ONTARIO COURT OF JUSTICE DATE: 2023·03·20 COURT FILE No.: Owen Sound 21-246
BETWEEN:
HIS MAJESTY THE KING
— AND —
NINA NODWELL
Before Justice of the Peace Anna M. Hampson
Pretrial Applications heard on March 8, 2023 Reasons for Pretrial Applications released on March 20, 2023
Counsel: Michael Murdock................................................................ counsel for the Crown/prosecution Jamie L. Stephenson............................................ co-counsel for the defendant Nina Nodwell Cristina Valeri........................................................ co-counsel for the defendant Nina Nodwell
JUSTICE OF THE PEACE HAMPSON:
[1] Nina Nodwell is charged with careless driving causing death and careless driving causing bodily harm as a result of a collision that occurred on July 23, 2021. The trial is scheduled for March 23 and March 24, 2023. The defendant has entered not guilty pleas to the charges. The defendant brought an application for a stay of the proceedings due to a violation of s. 11(b) of the Charter. The defendant also brought an application for a stay of the proceedings due to an abuse of process by the crown. Materials were prepared on behalf of the defendant and on behalf of the crown that have been reviewed. Oral arguments were made on March 8th. At the conclusion of the oral arguments, I indicated that the s. 11(b) application was dismissed and that written reasons would be provided. I reserved the decision on the abuse of process application. For the following reasons, both applications are dismissed.
[2] The Information was sworn on August 5, 2021. The first appearance was on September 27, 2021. There were several court appearances, including judicial pretrials. On November 30, 2022, the trial dates for March 23 and 24, 2023 were confirmed as well as the date for the pretrial motions for March 8, 2023. The total delay from August 5, 2021 to March 24, 2022 is 596 days or 19.6 months (596/30.47).
THE LAW
[3] Under the Charter, the applicant has a right to be tried within a reasonable time.
[4] The Supreme Court of Canada in R. v. Jordan 2016 SCC 27, [2016] 1 S.C.R. 631 addressed what was termed a culture of complacency and set a presumptive ceiling for delay for matters heard in the Ontario Court of Justice at 18 months. The 18 month ceiling was thereafter affirmed for Part I and III matters heard under the Provincial Offences Act. See R. v. Nguyen, 2020 ONCA 609.
[5] The Ontario Court of Appeal in R v. Coulter 2016 ONCA 704, [2016] O.J. No. 5005 addressed the steps to be taken when analyzing applications under the Jordan framework as calculating the total delay, subtract defence delay which results in net delay. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. The crown must then rebut the presumption by establishing exceptional circumstances which are discrete events and particularly complex cases. The delay caused by discrete events is subtracted which then leaves the remaining delay. If this remaining delay exceeds the presumptive ceiling, then a consideration is given as to whether the case was particularly complex such that the delay is justified and reasonable. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
THE POSITION OF THE PARTIES
[6] Ms. Valeri on behalf of the defendant argues that the delay in the circumstances is unreasonable, that the no amount of the time is due to the defence, that the crown actions of the crown, particularly in terms of the defendant’s position that the crown resiled from it’s offer to resolve the matter, the subject of the abuse of process application, contributed to the delay, and that no amount of delay ought to be attributed to the effects of the COVID-19 pandemic. Mr. Murdoch on behalf of the crown argues that the delay in this matter is not about defence delay nor is it about the complexity of the case. He argues that the COVID-19 pandemic is such a discrete event that any amount of the delay attributed to this discrete event will result in the presumptive ceiling being rebutted to the extent that the delay is not unreasonable and is justified.
[7] In my view, none of the delay is attributed to the defendant.
COVID-19
[8] The courts in Ontario have been unanimous in determining that the COVID-19 pandemic amounts to an exceptional circumstance. The impact of the pandemic affected all aspects of the courts. (R. v. Simmons, 2020 ONSC 7209, Toronto (City) v. Yaqoobi [2021] O.J. No. 6149, Toronto (City) v. Soudine [2021] O.J. No. 4939; R. v Khan, 2021 ONCJ 195; R v. Hyacinthe, 2022 ONSC 1444). In R v. Simmons, supra, Justice Nakatsuru indicated:
[69] 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.
[70] Second, the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.
[71] Third, taking such a realistic perspective regarding the impact of a discrete event is not novel. Take, for an example, when a judge falls ill. As a result, the trial must be adjourned to a new date. This is a recognized discrete event. The period of delay caused by this discrete exceptional event does not end the moment the judge recovers from their illness and is again capable of hearing cases. Rescheduling takes place in the reality of the courthouse. The new trial date takes into account the availability of the judge, the Crown, the defence counsel, and witnesses: Coulter, at paras. 81 – 84.
[72] Similarly, the discrete exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes place in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and in assessing what the Crown and the court can reasonably do in mitigating the delay.
[73] Fourth, the COVID-19 pandemic and its effects on the judicial system are not over. Now, the pandemic is getting worse. We are in the second wave. The number of infections is far greater than in the first wave. Despite promising news about potential vaccines that are being developed, there remains much uncertainty. The Superior Court of Justice in Toronto Region—which has now suspended jury trials again since October 9, 2020—has recently extended the suspension of jury trials to January 4, 2021.[4] In short, when it comes to assessing COVID-19’s impact on the criminal justice system, this discrete event continues.
[9] Although Simmons was decided early on in the pandemic, Justice Nakatsuru’s comments as highlighted are insightful and perceptive. The impact of the COVID-19 pandemic has affected all cases coming into the justice system. With respect to the provincial offences court, the COVID-19 pandemic has affected those cases that existed before March 15, 2020 and all of the cases since then. This includes Part 1 proceedings as well as Part 3 proceedings.
[10] However, there is no standard deduction of the delay simply due to this discrete event. COVID-19 is still here and will be here for a long time, if not forever. At some point in time, it may no longer be an exceptional circumstance such that it is no longer a discrete event. In my view, that is not the reality for this case.
[11] As I understand it, Ms. Valeri argues that none of the delay ought to be deducted due to the COVID-19 pandemic because there was no evidence of the impact. In addition, she argues that the affidavit evidence of Ms. Manion, the office administrator for the crown, set out that as of May 2021, trials could be scheduled in the provincial offences court, and since this matter commenced in August 2021, the pandemic had no effect. I reject these arguments. Firstly, the discrete exceptional event caused by the COVID-19 public health crisis did not end the moment the courts were given permission to schedule trials. It must be remembered that the provincial offences courthouses were closed from March 16, 2020 to August 5, 2020, and thereafter, the court could only accommodate virtual appearances for everything. The entire way of doing things in the courts (including the provincial offences court) had changed dramatically, from proceedings in person to virtual proceedings. Even limitation periods under the Provincial Offences Act were extended by the Chief Justice. It was not simply trials that needed to be scheduled. Trial scheduling takes place in the reality of the courthouse where it is being heard. Secondly, the evidence in Ms. Manion’s affidavit at paragraph 6 and 7 set out the challenges such that trials didn’t even commence until December 2021. Thirdly, The Chief Justice of Ontario sent out numerous notices to participants, counsel and paralegals over the last 3 years, which are available on the Ontario Court of Justice website. The COVID-19: Notice to Counsel/Paralegals and the Public Re: Provincial Offences Act Matters in the Ontario Court of Justice (revised May 10, 2022) stated “Effective April 4, 2022, as a result of the easing of the pandemic restrictions, the Chief Justice of the Ontario Court of Justice has directed that Provincial Offences Court managers can work with their Regional Senior Justices of the Peace to resume scheduling in person matters”. As is clear, the discrete exceptional event caused by the COVID-19 public health crisis did not end the moment the courts were able to schedule in person matters either.
[12] I am further persuaded by the decision of the Grey-Bruce Local Administrative Judge of the Superior Court, Justice Sproat in R. v J.D. dated November 10, 2022. While I appreciate that Justice Sproat’s decision was in the context of a jury trial, his analysis, observations, and reasons are persuasive and insightful. Many of the observations also apply to the provincial offences court: covid-19 infecting many people, people having to isolate including trial participants, rigorous courthouse protocols preventing individuals from physically attending court, judges (including justices of the peace), counsel, court staff having to adapt to new technology and procedures, spotty internet coverage in Grey-Bruce county resulting in delays when parties or witnesses couldn’t connect properly, the plexiglass installed throughout the courtroom (and just recently removed in some courts), additional audio visual systems, monitors. As Justice Sproat noted in paragraph 10 “In summary, I know that judges and court services personnel have been working harder than ever to keep cases moving. And despite their best efforts, for the reasons noted, cases were being delayed and disrupted by COVID-19. I expect that Crown and defence counsel were similarly working harder than ever”. I also agree with Justice Sproat that the Supreme Court of Canada in Jordan in contemplating a discrete event “ did not have in mind a global pandemic ” and that it is “ beyond reason to think that the crown and the justice system can prioritize one case when every case in the system is faltering, in the sense of being delayed by the pandemic ”.
[13] I also agree with Justice Sproat “ while it would be impossible to quantify with any precision it is crystal clear that Covid-19 caused very significant delay in the Central West Region ”. Justice Sproat found that the period from October 13, 2020 (being the day that the preliminary inquiry finished) to October 11, 2022 (being the day that the trial could have been conducted) was due to the discrete event of the COVID-19 and thus deducted the full 2 years from the delay and therefore dismissed the defendant’s application.
[14] In the current circumstances, the charges are the most serious under the Highway Traffic Act. According to Ms. Manion’s affidavit, this case involved 22 civilian witnesses and 15 police witnesses, medical personnel, the TTCI report (177 pages) 300 photographs, medical records among others. While this would usually be considered in terms of the complexity of the case, it is relevant to show that this matter is not simple nor is it straightforward and the two days scheduled for trial are reasonable. Once it became apparent that the matter was not going to resolve, there was no evidence that the trial was going to proceed virtually. As such, I find that this is a matter that was going to proceed in person. Even if it had resolved, it was going to be in person. It wasn’t until April 4, 2022, that in person proceedings were allowed to occur. This was for all in person proceedings, not just trials. It took 7 months for virtual trials to be scheduled (May 1, 2021 to December 1, 2021) in this court. It is reasonable to conclude that an additional period of time beyond April 4, 2022 ought to be attributed to the discrete event. Adding 7 months would take it to November 4, 2022. Justice Sproat in LD found the delay due to the COVID-19 public health crisis was to October 11, 2022. In addition, the case before me cannot be viewed in isolation and treated as if it were the only case in the busy provincial offences court. Justice Doherty JA observed in R. v. Allen
No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.
[15] While I am unable to quantify with precision the delay caused by COVID-19, I find that the delay in this case attributed to the COVID-19 is significant. The period from August 5, 2021 to at least April 4, 2022 (8 months) is due to the exceptional circumstance of the discrete event of the COVID-19 public health crisis and thus the remaining delay is 11.6 months and is well below the presumptive ceiling of 18 months. If the date is extended a further 7 months to November 1, 2022 (15 months), then the remaining delay is 4.6 months, again well below the presumptive ceiling.
ANY OTHER REASON FOR THE DELAY
[16] Ms. Valeri argues that there are 2 reasons for the delay. The first reason is due to the delay in receiving the disclosure of the TTCI report. This report was disclosed on April 7, 2022, some 8 months after the summons was issued. At the court appearance on December 13, 2021, the crown said it had just received the report, that it needed to be reviewed and that it would be disclosed thereafter. A judicial pretrial was scheduled for March 25, 2022. The JPT did not proceed due to the illness of the crown. In addition, the TTCI report had not been disclosed. According to Ms. Manion, the crown administrative manager, it was an error for the crown to have indicated on December 13th that the report was received, that it had not been provided to the crown by the police. The JPT was rescheduled to May 6, 2022. At page 2 of the transcript, the court said: “really it’s a crown request for the adjournment, the judicial pretrial today, as a result of Ms. Hines-Reimer’s illness”.
[17] Ms. Valeri did not indicate how much time ought to be attributed to this, however, in my view, I do not find that the 8 months was unreasonable in the circumstances. According to the affidavit of Ms. Manion, the production of the report by the investigator was finished by January 7, 2022, the review of the report by the supervisor was completed by March 30th, it was received by the crown on April 4th and then disclosed April 7th. It consisted of 177 pages and 303 photographs. There is no evidence that this was the only report that was being prepared during this time frame, however it is reasonable to infer that it was not the only one. It was also prepared within the context of the COVID-19 health crisis. It is not necessary to have specific evidence of the impact that COVID-19 had on the police, the investigators, the crown or any other participant-indeed it would be impossible to have such evidence. In my view, it is unrealistic to attempt to divorce the impact of the COVID-19 health crisis from the time it took to disclose this report. I find that this delay was due to the discrete event of the COVID-19 health crisis and not due to delay in providing disclosure.
[18] The second reason advanced by Ms. Valeri for the delay is found within the context of the application for abuse of process. I will deal specifically with this application below. Within the context of the s. 11(b) application, Ms. Valeri argues that the time from June 24, 2022 (being the JPT wherein the defendant argues that there was an agreement with respect to a resolution) to September 7th, 2022 (being the date the defendant was advised that there was no resolution) is due to the actions of the crown. She argues that it took too long for the crown to advise that it was not prepared to resolve as had been discussed in the June 24th JPT, that the trial setting process of the JPT in terms of the length of the trial could have taken place sooner and thus trial dates could have been obtained sooner than March 23-24, 2023. Ms. Valeri was not specific in terms of the amount of delay to be attributed to this. It is clear however, that some time would have been needed to secure the dates. I find that 3 months between the 2 JPT dates would be an appropriate amount of time to finalize the witness list and arrange the trial time. Thus, the delay attributed to this is 6 months.
[19] The only evidence that a trial date may have been arranged sooner than March 23-24, 2023, is the email dated November 8th from the court clerk wherein she is inquiring about dates for the pretrial motions (ie the s. 11(b) and the abuse of process) where the crown and defence are not available for the remainder of 2022 and into early 2023. While tenuous, this would seem to suggest that perhaps an earlier trial date may have been arranged. Again, it is difficult to quantify with any precision what this change in the crown’s position may have had. Even if the entire 6 months delay is attributed to the this and is added to the 11.6 months or the 4.6 months as indicated in paragraph 15 above, the remaining delay (17.6 months or 13.6 months) is still below the presumptive ceiling of 18 months. Again, it is unrealistic to divorce the impact of the COVID-19 health crisis. All of this was happening within the context of discrete event of the COVID-19 health crisis. In my view, this 6 month delay was due to the discrete event of the COVID-19 health crisis and was not due to the change in the crown’s position.
DELAY BELOW THE PRESUMPTIVE CEILING
[20] Since I have determined that the remaining delay is below the presumptive ceiling, the onus then is on the defendant to show that the remaining delay is unreasonable. Although no specific submissions were made on this issue given the defence position that none of the delay was due to the COVID-19 pandemic, I find that the defendant has not met its onus. Firstly, while I have found that there is no delay on the part of the defence, I find that the some of the steps taken by the defence were in keeping with usual steps taken in a serious case such as this in an effort to keep the matter moving: appearing at all court appearances including JPTs, scheduling, rescheduling and conducting crown pretrials, responding to emails and cooperating with the crown in terms of trial scheduling. While not defence delay and is in no way critical of counsel, counsel for the defendant was not available in January or February 2022 for a JPT. At the JPT of May 6th, according to the transcript on page 1 line 15, the court suggested that both counsel were aware that they need to speak with each other, and further on page 2 line 23 defence counsel agreed that further discussions with assigned counsel would assist in moving the matter expeditiously. The matter was then adjourned to June 24th. However, there is no evidence that there were any discussions in that regard. There is no specific mention of delay on the record at any court appearance, however according to the transcript at page 1 line 26 asked the defence if it would advise if there were going to be any charter motions or any other pretrial motions. When there were attempts to secure trial dates, the question of whether there was going to be 1 motion (abuse of process) or 2 motions (abuse of process and delay) and that counsel wanted to start with the trial dates and then work backwards was a defence step. None of these examples are meant to be critical of the defence.
[21] Secondly, I do not find that the case took “markedly longer” than would reasonably have been expected. As already discussed, the charges are the most serious under the Highway Traffic Act involving a fatality and injuries to a second person. Initially, this case involved 22 civilian witnesses and 15 police witnesses, medical personnel, the TTCI report (177 pages) 300 photographs, medical records among others. Significant preparation time is required in these types of matters. Judicial pretrials are essential in these types of serious charges. Apparently, the number of witnesses to be called at the trial has been reduced to 8 or 9. This is still a significant number of witnesses and is reflective of the serious nature of the charges. It is set for 2 days. This is not a simple matter such as speeding which may take an hour of trial time or driving while suspended which may take even less trial time.
CONCLUSION ON THE S. 11(B) APPLICATION
[22] I find that the delay in this matter is primarily due the discrete circumstance of the COVID-19 pandemic/health crisis. The issue is what amount ought to be attributed to this discrete circumstance. As set out in paragraph 15 above, the minimum amount of delay due to the COVID-19 pandemic/health crisis is 8 months (ie to April 4, 2022) so that the net delay is 11.6 months. The maximum amount of delay due to the COVID-19 pandemic/health crisis is 15 months (to November 1, 2022) so that the net delay is 4.6 months. Regardless of which date is used, the net delay is below the 18 month presumptive ceiling and the defendant has not met its onus to rebut this presumption. In all of the circumstances, I find that the most reasonable amount of the delay attributed to the COVID-19 pandemic/health crisis in this case is 5 months after the resumption of in person proceedings, or September 1, 2022.
[23] I make the following calculations: Total Delay: 19.6 months (596 days from August 5, 2021 to March 24, 2023) Defence Delay: 0 days Net Delay: 19.6 months Discrete Circumstances: (13 months (from August 5, 2021 to September 1, 2022)) NET DELAY 6.6 months
[24] The net delay of 6.6 months is well below the presumptive ceiling of 18 months. The defendant has not met its onus to rebut the presumption. The delay in this matter is not unreasonable. The defendant’s application is dismissed.
ABUSE OF PROCESS APPLICATION
[25] Ms. Valeri on behalf of the defendant also alleges that the actions of the crown have resulted in an abuse of process and that the only remedy in the circumstances is a stay of the proceedings given the egregious conduct of the crown. The basis for this argument is the defendant’s position that the crown resiled from the deal that was made at the at the judicial pretrial on June 24th that would have resulted in a resolution to the matter at the next judicial pretrial date of September 22nd. The defendant argues that the integrity of the judicial process has been undermined and further that the role of the crown as a quasi minister of justice was also undermined. She further argues that the defendant has been prejudiced by the actions of the crown. Mr. Murdoch argues on behalf of the crown that the crown did not resile from the deal because there was no firm deal that was made at the judicial pretrial of June 24th since there still needed to be an agreed statement of facts and that there was no agreement as to whether there would be a plea to one or both charges. He further argues that there was no prejudice to the defendant, that there was no bad faith or improper motive on behalf of the crown, and that if there was an abuse of process, the conduct of the crown was not one of the clearest of cases calling for a remedy of a stay of the proceedings.
[26] Prior to hearing any arguments, a preliminary issue was raised by the crown concerning the fact that the defendant’s written material for this application included comments made by the Justice of the Peace during the off-record portion of the judicial pretrials. I ruled that the only comments by the presiding Justice of the Peace to be considered were limited to the transcripts of the official record. It is inappropriate to reference those comments and they have no place in any application. The very nature and purpose of judicial pretrials is to have full and frank discussions among the parties including the presiding judicial officer who often expresses opinions.
THE LAW
[27] An application for abuse of process on behalf of the crown is a serious accusation that requires the defendant to prove it on a balance of probabilities. The Supreme Court of Canada decided in R. v. Jewitt, [1985] 2 S.C.R. 128 that the trial court at common law has residual jurisdiction to stay of the proceedings to remedy an abuse of process. The Supreme Court of Canada in R. v O’Connor, [1995] 4 S.C.R. 411 at para 73 identified two categories of abuse of process which would be caught by s. 7 of the Charter: (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that “contravenes fundamental notions of justice and thus undermines the integrity of the judicial process”.
[28] The Supreme Court of Canada in R. v. Nixon 2011 SCC 34, [2011] 2 S.C.R. 566 stated:
[42] The test for granting a stay of proceedings for abuse of process, regardless of whether the abuse causes prejudice to the accused’s fair trial interests or to the integrity of the justice system, is that set out in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297. A stay of proceedings will only be appropriate when: “(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice” (Regan at para 54, citing O’Connor at para 75)
[59] The question, therefore, is whether this case falls in the residual category of cases identified in O’Connor. Did the repudiation of the plea agreement, based on all of the circumstances, amount to an abuse of process? In other words, was the Crown’s repudiation conduct so unfair or oppressive to Ms. Nixon, or so tainted by bad faith or improper motive, that to allow the Crown to now proceed on the dangerous driving Criminal Code charges would tarnish the integrity of the judicial system?
CONDUCT OF THE CROWN
[29] Ms. Valeri argues that the crown resiled from its offer to resolve the matter made at the judicial pretrial on June 24th and that counsel wasn’t advised of this until September 7th. Mr. Murdoch argues that there was no agreement reached at the judicial pretrial and therefore the crown did not resile.
[30] The first time that a judicial pretrial was able to be conducted was May 6th. According to the transcript, there were some resolution discussions. The court said at page 1, line 15: We’ve discussed, to some extent, some possible resolutions of the, of the matters, and I think both counsel are aware that they need to just speak with the other, I guess, further to see if there are some, some opportunities there to resolve it, which, frankly, I think there should be. I would be hopeful that we would be able to resolve this. Then, at page 2 line 3: We’ve agreed, as I said then, to put it over for a continuation of the judicial pre-trial. It will come back before me then on June the 24th at 2:30 in the afternoon, and that will be for a continuation of the matter. And hopefully we will be either in a position to either resolve it or set a date for a resolution, or if that’s not possible, I think we would be looking at then at going into some more detail about coming up with some recommendations as to how long the matter would take to, to go to trial. And further at page 2 line 23: …certainly some further discussion with the assigned Crown will assist in moving the matter forward expeditiously.
[31] There is no evidence that there were any discussions between the crown and defence counsel between May 6th and the next JPT of June 24th.
[32] The entire transcript of the June 24th is as follows: THE COURT: We’re dealing with the matters of, of Nina Nodwell. She is represented today by Ms. Valeri who is an associate of Stephenson, the previous – the counsel on the matter and the Crown is represented today by Ms. Hines-Reimer. We are anticipating a resolution of the, of the matters on, on our next date. [indiscernible] judicial pre-trials [indiscernible] this jurisdiction which is September the 22nd. We have booked this matter in at two o’clock and we are setting aside one hour for that anticipated resolution. And off record we’ve had some discussions with counsel as to what that resolution might entail. They’re going to have some, some further discussions between themselves as well to, to finalize everything before that time. And then I guess the only other thing we hadn’t specifically discussed, and I’ll just raise it to, you know, to hear anything from you on it, but I don’t think we had specifically discussed whether or not Ms. Nodwell was going to be pleading to, to one court or to both. So, I’ll leave that between you two to figure out as well. At the moment, she is facing two counts on the, on the information, so that’s something I think we should – I encourage you to, to discuss between yourselves and hopefully resolve as well. So, September 22nd at two o’clock for the anticipated resolution. I think that’s all I’m going to put on the record. If either of you, counsel, wish to, to add anything, you’re obviously welcome to, to do so. MS. HINES REIMER: No, thank you, I think that covers it, Your Worship. MS. VALERI: Yes, thank you, Your Worship, and I’ll reach out to Ms. Hines-Reimer in advance to that about all the discussions we had as well.
THE COURT: Okay, great. Thank you very much, I appreciate that. All right, thank you very much, and we’ll put the matter over then, as indicated, to September 22nd at two o’clock.
MS. VALERI: Thank you, Your Worship. Thank you, my friend.
[33] From this transcript, I find that the parties are “anticipating” a resolution, however, there are still matters to be discussed and resolved “ to finalize everything before that time ” that “ I don’t think we had specifically discussed whether or not Ms. Nodwell was going to be pleading to, to one court or to both ” with the court stating “ I encourage you two to discuss between yourselves and hopefully resolve as well ” with counsel indicating “ I’ll reach out to Ms. Hines-Reimer in advance to that about all the discussions we had as well ”. Based on a fair reading of this transcript, I find that this matter was on a “resolution track” and that there was going to be further discussions between counsel to finalize matters.
[34] The only evidence of any discussions occurring after June 24th is the email dated September 7th at 10:28 am from the crown, Ms. Heins-Reimer, to Ms. Stephenson with respect to the update and the crown’s position to prosecute the matter as charged. That email details the reasons for the decision to prosecute, including that she had consulted with the acting Crown for Owen Sound and an experienced POA prosecutor/assistant crown and that there is public interest in proceeding. There is then an email timed 1:18 pm from Ms. Valeri on behalf of Ms. Stephenson that sets out the basis for the abuse of process application. I am only referencing these 2 emails for purposes of setting the context of the application. The emails are irrelevant and inadmissible to the merits of the allegations as to what happened during the collision and do not go to the strength of the crown’s case nor any defence the defendant may have.
[35] Ms. Valeri’s email references that the crown had offered a plea to an offence contrary to s. 139(1). She also indicates that there was a discussion about the defendant giving up her licence voluntary as well as making a charitable donation. She also indicates that they “ were to discuss in the meantime whether Ms. Nodell would be pleading to one count or two counts of fail to yield. We were also waiting on a potential ASF” . There is no evidence that defence counsel and crown counsel had any discussions, emails, telephone calls, or correspondence from June 24th to September 7th, despite the court’s comments and Ms. Valeri’s comments noted above. There is no evidence that the supposed “resolution” was reduced to writing by either the crown or the defence. There’s no evidence that counsel even had instructions from the defendant to accept the “deal” until it was mentioned in the same email but there is no evidence as to when counsel received those instructions. While it could be inferred from the same email that the defendant gave up her licence, there is no evidence as to when she did that, nor is there any evidence that she made the charitable donation.
[36] Therefore, I find that the matter was on the “resolution track” but this does not mean that it had resolved, particularly when there still needed to be an agreed statement of facts, whether there would be one plea or two, or whether the other components to the resolution, which are often referred to as “upfront work”, still needed to be confirmed. Although there may have been an understanding as to how things might resolve, there was no firm resolution or deal. As such, the crown cannot be said to have “resiled” from a resolution.
[37] At the September 22nd, judicial pretrial, the court indicated that “ we had anticipated possible resolution of this matter today. That is not occurring ” and that the matter was being adjourned for a further JPT, that the parties were to provide some idea of the number of witnesses, whether there could be any admissions, whether there would be any “ charter motions or any other non trial matters ”, and also “ I would urge the two of you as well to continue to have discussions to see if there are other possible resolutions that – other than the one that, that apparently is no longer on the table.” Whether these comments by the court could be viewed as expressing an opinion, disappointment, or surprise, is of no assistance to the issue I need to determine. I am unable to find that there was a complete resolution that the crown repudiated.
[38] In addition, I do not find that the defendant has been prejudiced by the actions of the crown. She is in the exact same position, namely, she is presumed innocent of the allegations and is entitled to a trial at which the crown will have the burden of proving her guilty beyond a reasonable doubt. She has not comprised her ability to defend herself. She has not made any admissions. While she may be disappointed, and even having some anxiety about the matter, that does not amount to prejudice. Neither does the fact that she may have to now pay for counsel to conduct the trial.
[39] I do not find that the crown acted maliciously, in bad faith or for an improper motive. I do not find that the crown’s conduct was so unfair or oppressive. While there may have been an offer to take a plea to significantly lesser offence, there was no clear agreement on all aspects, and thus it was not “resolved”. Clearly, resolution discussions are to be encouraged. While a change in a resolution offered by a crown at a judicial pretrial is not to be encouraged or condoned, in the current circumstances, I do not find that this conduct amounts to an abuse of process. The abuse of process application is dismissed.
CONCLUSION
[40] The delay application and the abuse of process application are both dismissed. This matter will proceed to trial. Witnesses will be called to testify and can be cross examined. Their credibility can be tested or challenged. The crown will have the burden of proving the defendant’s guilt of the two offences beyond a reasonable doubt. All essential elements must be proven beyond a reasonable doubt. Because this is a charge under the Highway Traffic Act, it is a strict liability offence for which the defendant can establish, on a balance of probabilities, that she exercised due diligence. The defendant does not have to prove her innocence.
[41] One final note. At the commencement of the applications, the crown raised a further issue with respect to the defence materials, namely the email exchanges. I ruled at the time that the email exchanges would only be considered with respect to the applications. They will not be considered any further. I will disabuse myself of those emails.
Released: March 20, 2023 Signed: “Justice of the Peace Anna M. Hampson”