Ontario Court of Justice

Date: July 16, 2024

Between:

His Majesty the King

— AND —

Michael Dejong

Before: Justice of the Peace COMMISSO, M

Heard on: May 23, 2024

Section 144(18.1) and pursuant to section 207 - Red Light Camera

Reasons for Judgment released on: July 16, 2024

Counsel:

Ms. L. Boyd.................................................................................... agent for the prosecution Mr. Michael Dejong.................................................................................................. defendant

Introduction

[1] Mr. Dejong stands charged on June 8, 2022 of being the owner of a motor vehicle that was captured by the Red Light Camera system, contrary to section 144(18.1) and pursuant to section 207 of the Highway Traffic Act.

[2] The trial was scheduled on May 23, 2024. The defendant entered a plea of not guilty to the charge before the court. On May 23, 2024, I reviewed the documents before me and confirmed that the defendant had filed a Notice of Constitutional Question, which was properly served on both the Federal and Provincial Attorney General’s Office, pursuant to section 109(1) of the Courts of Justice Act. It was also confirmed that the Defendant did not file the Notice with the court. However, after reviewing the document from the Defendant, I note that it consisted of Form 4F with two paragraphs.

[3] The Prosecutor advised that they were served with the Notice and were prepared to proceed.

[4] The Defendant was charged on June 8, 2022 with the offence of being the owner of Ontario Plate CVYA292 and at the intersection of Upper Middle Road W and Sixth Line in the Town of Oakville, that vehicle did go through a red light, contrary to section 144(18.1) and pursuant to section 207 of the Highway Traffic Act.

[5] On June 28, 2022, the Defendant filed his Notice of Intention to Appear with the Burlington Provincial Offences Court, requesting a trial date for the matter.

[6] On April 9, 2024, a Notice of Trial was sent from the Provincial Offences Court to the Defendant, indicating that a trial was scheduled on May 23, 2024.

[7] On April 9, 2024, the Defendant served his Notice of Constitutional Question on all parties, including the Prosecution office, claiming that his section 11(b) rights under the Canadian Charter of Rights and Freedoms (“Charter”) have been violated and therefore requesting a stay of the proceedings, pursuant to section 24(1) of the Charter.

The Applicant’s s. 11(b) Charter Application

[8] The Applicant has stated that the delay between the offence date of June 8, 2022 to the first trial date of May 23, 2024 is over 23 months and violates his section 11(b) rights under the Charter.

[9] The Applicant further stated that none of that delay is a result of any actions on his part. He was required to file a Notice of Intention to Appear, which he did on June 22, 2022. He waited to receive communication from the Court with respect to his trial and that a Notice of Trial dated April 9, 2024 was received by him confirming that his trial date was scheduled for May 23, 2024.

[10] Disclosure was requested by the Defendant on February 2, 2024, and provided by the Prosecution prior to the trial date.

[11] The Applicant advised the Court that during the 23 months, he was not working and had retired from his previous job. He stated that he wanted to travel, but did not in fear that he would not receive his Trial Notice and would miss his trial date. In addition, he claimed that the delay has impacted his ability to make long term plans and to seek employment in other parts of the world.

The Law

[12] The relevant sections of the Charter pertaining to this Application are:

ss.11(b) Any person charged with an offence has the right…(b) to be tried within a reasonable time; and

ss. 24(1) Anyone whose rights and freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[13] Ontario Regulation 277/99, which deals with Red Light Camera charges, states that Notice of an offence obtained through the use of a red light camera system is to be sent by regular mail or courier to the person charged within 23 days of the alleged offence date.

[14] Pursuant to section 4 of the Provincial Offences Act, a certificate of offence shall be filed with the court no later than seven days after service of the offence notice.

[15] The Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 (“Jordan”) set a presumptive ceiling for delay for matters heard in the Ontario Court of Justice at 18 months for Part I Provincial Offences charges.

[16] The Courts have said that the start date when calculating delay is when the proceeding commences, which is the date the Certificate of Offence is filed with the Court. This is also supported by section 3(1) of the Provincial Offences Act, which states:

“…a proceeding in respect of an offence may be commenced by filing a certificate of offence alleging the offence in the office of the court”

[17] Delay is calculated from the charge date to the end of the trial date. You would then subtract any defence delay from the total delay, which then provides you with the net delay. If the net delay exceeds the presumptive ceiling of 18 months as set out in Jordan, then the delay is seen as presumptively unreasonable. To disprove the presumption, it is then open to the Prosecution to establish the presence of any exceptional circumstances. Any delay as a result of exceptional circumstances is subtracted from the net delay. If the remaining delay falls below the presumptive ceiling, then the onus is on the Defendant to show that the delay is unreasonable.

Analysis of Delay

[18] The offence date is June 8, 2022. The Notice of Offence was mailed to the Defendant on June 21, 2022 and the proceeding commenced on June 28, 2022, which is the date the Certificate of Offence was filed with the Court.

[19] In calculating delay, I will start from the date the proceeding commenced, that being June 28, 2022 to the first trial date set by the Court, that being May 23, 2024. This is a total of 22 months and 23 days.

[20] The requirement of the Defendant once Notice of the offence was served, was to advise the Court of how he wished to proceed. When he filed his Notice of Intention to Appear on June 28, 2022, he satisfied the only requirement he had, and clearly advised the Court that his intention was to appear in court for the trial of this matter. There were no waivers of delay from the Applicant that this Court was made aware of. Nor can this Court see any inaction or frivolous requests of the Applicant to bring this matter to trial.

[21] Accordingly, I find that there has been no action on the part of the Applicant to cause any portion of the delay, leaving the net delay at 22 months and 23 days. This clearly falls above the presumptive ceiling set in Jordan for a Part I Provincial Offences charge. Accordingly, it is open to the Respondent to establish the presence of any exceptional circumstances.

[22] During the hearing of this Application, I made specific inquiries of the Respondent with respect to their position/arguments on the issue of delay, as they had made no oral submissions to the Court nor had they advanced any written submissions in their Factum. Their response was that they had not prepared any submissions on this issue. They confirmed that they were only advancing one legal argument in response to the Application as outlined in the Factum, which I will address below. Accordingly, I have no evidence or position from the Respondent with respect to the issue of delay.

[23] The Respondent did indicate in their Factum that the Defendant requested disclosure late on February 2, 2024, which was provided on April 22, 2024. I find this fact to have no bearing on calculating delay on an 11(b) Charter Application.

[24] Accordingly, seeing that the Court has determined that none of the delay falls at the feet of the Applicant, and furthermore, seeing that the Respondent has not rebutted this presumption by establishing the presence of any exception circumstances, the net delay in this matter is 22 months and 23 days. This delay exceeds the presumptive ceiling as set out in Jordan by approximately 4 months and 23 days.

[25] This is a red light camera charge before the court. It is not a complex matter, similar to many Part I offences. There are no witnesses to be vetted as this type of offence is prosecuted by the Prosecution through certified evidence which also means that availability of witnesses is not a considering factor when scheduling a trial date. Accordingly, this court finds that the full net delay is seen as systemic and/or institutional delay and must be attributed to the Respondent and ultimately seen as unreasonable.

The Respondent’s Argument that 11(b) Charter Rights are not engaged when dealing with Red Light Camera offences

[26] The arguments advanced by the Respondent to the constitutional question before this court are:

A. Charter rights do not extend to a vehicle, as it is not a ‘person charged’; and

B. Because red light camera charges do not carry true penal consequences, they do not fall within section 11 of the Charter

[27] The issue of whether or not section 11 of the Charter applies to regulatory offences has been contemplated by many Courts. The Supreme Court of Canada in the case of R. v. Wigglesworth, [1987] 2 S.C.R. 541, confirmed that regulatory offences, such as Highway Traffic Act charges, are subject to the protections of s. 11 of the Charter.

[28] The Respondent’s position is that because red light camera charges are issued to the owner of the vehicle and not the driver, this excludes these charges from any s. 11 Charter protections. In my view, this argument fails.

[29] In the case of McCutcheon and City of Toronto et al, 41 O.R. (2d) 652, Justice Linden stated:

There can be no question that parking infractions are "offences" as that word is used in s. 11 of the Charter. The respondents contend that these are not the types of transgressions against society section 11 of the Charter is directed at, since there is virtually no stigma attached to a parking ticket. In my view, however, the degree of stigma is of no significance.

Parking infractions, which fall under Part II offences under the Provincial Offences Act, are also owner liability charges. Seeing that the Court in McCutcheon already determined that owner liability charges such as parking infractions are considered offences and engage the Charter, than one can only conclude that red light camera charges, which are also owner liability offences fall under the protection afforded by s. 11 of the Charter.

[30] I will also note that the McCutcheon decision came well before Municipalities took Part II parking offences out of Provincial Offences Courts and into the Administrative Penalty System (“AMPS”). The process was also argued before the Ontario Court of Appeal in the case of Weisdorf v. Toronto (City) [2020] O.J. No. 2744, whereby the Court upheld that Municipalities had the statutory authority to authorize the adoption of AMPS and ultimately had the ability to address these offences through by-laws resulting in the Provincial Offences Act no longer applying to parking offences. Once that occurred, I agree that parking offences are no longer considered a regulatory offence under the Highway Traffic Act and do not entail genuine penal consequences. Which ultimately means that they would no longer be “offences” contemplated under section 11 of the Charter.

[31] That is not the case with the offence that is before this Court. Red light camera offences are not part of AMPS, and thus can not be looked at or considered as such.

[32] When I look at the Certificate of Offence that was filed with the Court by the Provincial Offences Officer, I note that the Certificate states:

“…Michael Dejong being the owner of the motor vehicle…, the Defendant, as the owner, did commit the offence of failing to stop at a red light…”

The wording/language itself in the Notice confirms that the Defendant committed an offence. Additionally, a Notice of Offence with similar wording was mailed to the Defendant advising him of the offence and the options available to him to address the offence.

[33] Additionally, when the Defendant filed his Notice of Intention to Appear, the Ontario Court of Justice, sent him a Notice of Trial which states:

Michael Dejong, you are charged with the following offence…You did commit the offence of red light-owner fail to stop…your trial will be held at…you can appear for your trial in person or by zoom…

The wording used in this Notice further supports that the Defendant himself was charged with an offence under the Highway Traffic Act and that he was required to attend court to answer to the charge.

[34] The Respondent also put forward the argument that because the Defendant was not facing a charge that carries a true penal consequence as contemplated in paragraph 24 of R. v. Wigglesworth, that section 11(b) of the Charter does not apply. I respectfully disagree.

[35] Paragraph 22 of R. v. Wigglesworth states:

“There are many examples of offences which are criminal in nature but which carry relatively minor consequences following conviction. Proceedings in respect of these offences would nevertheless be subject to the protections of s. 11 of the Charter. It cannot be seriously contended that just because a minor traffic offence leads to a very slight consequence, perhaps only a small fine, that offence does not fall within s. 11. It is a criminal or quasi-criminal proceeding. It is the sort of offence which by its very nature must fall within s. 11.”

[36] A Red light camera offence is laid under Part I of the Provincial Offences Act, contrary to subsection 144(18.1) and pursuant to section 207 of the Highway Traffic Act. When it comes to the penalty of such offences, section 12 of the POA clearly states that a fine up to $1000.00 can be imposed and there is no authority to impose a term of imprisonment. This is the case for all Part I offences. There is no difference between a red light camera offence and any other Part I offence, in this regard.

[37] The Respondent further argues that because a conviction of a red light camera offence does not carry any demerit points with the Ministry of Transportation and does not appear on one’s driving abstract, there is no true penal consequences upon conviction, and is therefore not protected under section 11 of the Charter. This court is of the opinion that any other administrative penalty that flows from a conviction of a Part I offence, such as Ministry of Transportation consequences, are not part of the court process and should not enter into the analysis when assessing penal consequences, as suggested by the Respondent. Penal consequences, as contemplated by the Court in R. v. Wigglesworth, in my opinion, refers to punishment or penalty imposed by a Court of Law, and not by any other Regulatory Agency.

[38] The rights protected by section 11(b) of the Charter apply to both owners of vehicles as well as drivers of vehicles. To suggest otherwise would mean that society would be less interested in seeing owners of vehicles brought to trial and that a two tier class of offences existed in our Justice System. This simply can not be the case.

[39] The Application is granted and pursuant to section 24(1) a stay of the proceedings is entered.

Released: July 16, 2024 Signed: Justice of the Peace M. Commisso