Court File and Parties

Ontario Court of Justice Date: 2024 08 09 Court File No.: 1260-999-00- 1964162F/63F/64F

Between: HALTON (REGIONAL MUNICIPALITY) — AND — THO TRUONG PHAN

Before: Justice Scott Latimer Heard on: June 21, 2024 Reasons for Decision released on: August 9, 2024

Counsel: Christopher Zenko, Agent for the Appellant Tho Truong Phan, on his own behalf

Reasons for Decision

LATIMER J.:

[1] This is a prosecution appeal from a section 11(b) Charter stay of proceedings. The prosecution submits that, on November 2, 2023, the Justice of the Peace acted without jurisdiction in hearing the matter or, in the alternative, erred in her approach to the application.

[2] Mr. Phan, for his part, submits that this appeal is a further unfairness to him in a matter that was delayed multiple times, by the courts, prosecutors, and even his own agents, and he simply wants it over with. The prosecution advises that, whatever the result of this appeal, they have no interest in re-prosecuting Mr. Phan for these infractions.

[3] A brief chronology is helpful for narrative purposes. Mr. Phan was charged on April 17, 2021, with speeding, having a license plate not plainly visible, and failing to produce an insurance card. On May 5, he filed a notice of intention to appear and a request for a trial. Nineteen months later, on December 7, 2022, the court system notified him that his trial would be held on February 15, 2023.

[4] The trial did not proceed that day. I do not have a transcript to understand why. It was adjourned to a date in April where it was adjourned again, multiple times, ultimately ending up on a trial docket on November 2, 2023, where a stay of proceedings was ultimately granted.

[5] I have heard argument in this case and have had the benefit of Mr. Zenko’s factum. I have reviewed the November 2 transcript and the records contained in the provincial offences court file. I am aware of my jurisdiction as a provincial offences act appeal judge. I am satisfied that a legal error occurred in this proceeding and that the stay of proceedings should be overturned, although my determination is much narrower than the prosecution seeks in their factum. My ruling is limited to the specific facts before me. I note the following relevant aspects of this case in coming to my conclusion:

(1) Following the pandemic, the provincial offence courts are heavily backlogged. Judicial officers presiding in these courts work tirelessly to try and provide efficient access to justice to the people of Ontario. I see this in my role as Local Administrative Judge in Halton Region, and as the judge responsible for the vast majority of POA appeals in this region.

(2) The purpose of provincial offences court is to provide a fair and efficient hearing for people who receive traffic tickets – like Mr. Phan – and the government, who has an obvious interest in safe roads and a just regulatory enforcement process: London (City) v Young, 2006 CarswellOnt 7618, at para. 5, aff’d 2008 ONCA 429.

(3) The respondent’s charges entered the system while Covid was still very much a factor. Whether or not in-person courts were reopened in April 2021 – a point of debate in the November 2 transcript – the impact of the Covid-related closures was a relevant consideration in Mr. Phan’s case. As noted by several recent s. 11(b) judgments, “the proverbial pig [was still] in the python, it will take some time before it can be considered to be fully digested”: R. v. Titus, 2022 ONSC 3484, at para. 17. The trial Justice’s failure to consider this aspect of the case occasioned legal error.

(4) The record received on appeal in this case is messy. The paperwork – not reproduced in an appeal book – contains three separate s.11(b) notices, one from Mr. Phan himself (Dec 29, 2022), Mr. Periti on Mr. Phan’s behalf (March 14, 2023), and Ms. Cox on Mr. Phan’s behalf (May 24, 2023). The latter two contain proof of service on both the federal and provincial government. The only transcript provided is November 2, 2023, the date of the eventual stay of proceedings.

(5) As a result of this limited record, I do not have a complete picture of what happened to these various applications prior to November 2, 2023. It is, however, clear that no s. 11(b) motion was set to be argued that day. As a result, Ms. Hume was reasonably caught off guard by the trial Justice’s decision to hear such a motion orally. Requiring Ms. Hume to immediately respond to an application suddenly “resurrected” with an incomplete record was unfair to the prosecution. While I am not convinced Her Worship was without jurisdiction to consider the s. 11(b) issue – proper notices had been served – I am convinced that requiring the prosecution to respond under these conditions was inappropriate. If the court was going to entertain the motion, a reasonable amount of time should have been granted before a response was required.

(6) Staying with the jurisdictional point for a moment, I am not satisfied, on this incomplete record, that the multiple s. 11(b) applications filed were not still active – albeit dormant and unperfected – in this proceeding. The appellant’s submission, that a new notice with new service on all levels of government had to occur before a judicial officer could consider the s. 11(b) issue, is a burdensome approach with no clear benefit to either the parties or the administration of justice. The Constitutional Law Branch of the provincial government and the federal government were both previously made aware of a pending s. 11(b) application in this traffic ticket matter. Unsurprisingly, neither sought to intervene. The matter was capable of being litigated by the immediate parties and considered by the court. While an agent had previously “abandoned” the application, it had never been heard on its merits, nor had a judicial determination been made. It cannot be forgotten that Part I POA matters are not intended to be “a trap for the unskilled or unwary but, rather … an inexpensive and efficient way of dealing with, for the most part, minor offences”: R v Jamieson, 1981 CarswellOnt 1105, at para. 8. A Justice of the Peace has the authority to “resurrect” a properly filed s. 11(b) application, provided it occurs in a manner that is fair to both sides. Jurisdiction was present here; it was procedural fairness that was lacking.

(7) Having said that, I am, to a degree, sympathetic to the trial Justice. She attempted to address a matter that had become aged in the court system. I agree with her statement, at page 5 of the transcript, that substance is often more important than form. But a balance still needs to be achieved. Form exists, in this context, to ensure transparency and that a judicial officer has a proper understanding of what factors led to a case’s delay in the system. Proceeding in the absence of transcripts precluded any proper characterization of the reasons for delay beginning on February 15, 2023.

(8) My conclusion that the trial Justice erred in her approach to the s. 11(b) issue justifies the lifting of the stay of proceedings. Given the limited record before me, I decline to go further and, as the appellant requests in their factum, “order a direction” to the provincial offence courts regarding procedural aspects of s. 11(b) applications. These reasons are sufficient to address the circumstance that arose in Mr. Phan’s case. Other issues, including the statutory interpretation argument raised for the first time on appeal, are not required to be resolved in order to dispose of this appeal.

(9) As a final note, the comments made by Her Worship at the close of the proceeding were regrettable and risked being misunderstood as an attempt to deter appellate review of her decision. I have had the privilege of having many of the Halton Region prosecutors, including Ms. Hume, appear before me in Provincial Offences Appeal Court over the past three years. They perform their prosecutorial function professionally and fairly. They need no lessons on the public interest or prosecutorial discretion.

[6] In conclusion, the trial Justice had jurisdiction to consider the s. 11(b) motion on November 2, but acted unreasonably in her attempt to address Mr. Phan’s dated matter. Notice had not been given to the prosecution that this issue would be raised. No transcripts were available to be considered. Given the factual issues raised in this application, transcripts were necessary to understand why Mr. Phan’s matter was adjourned between February and November 2023. The manner in which the application was conducted was flawed.

Disposition

[7] The stay of proceedings is overturned. The charges are marked withdrawn at the request of the prosecution.

Released: August 9, 2024 Justice Scott Latimer