ONTARIO COURT OF JUSTICE

BETWEEN:

The Region of Halton (Respondent)

— and —

Kanwaljit Grewal (Applicant)

RULING ON s. 11(b) CHARTER MOTION

Before Justice of the Peace T.J. Howard

Motion heard August 27, 2024, in Burlington, Ontario Ruling and reasons released September 20, 2024, in Burlington, Ontario

Counsel: Ms. G. Hume, for the Respondent Mr. M. Gebriel, for the Applicant

Introduction

[1] The applicant, Mr. Kanwaljit Grewal is charged with a single count of careless driving, contrary to s. 130(1) of the Highway Traffic Act, R.S.O. 1990 c. H.8. (HTA). It is alleged that the applicant committed the offence on January 28, 2023, in the Town of Oakville. Proceedings were commenced via a certificate of offence under part I of the Provincial Offences Act, R.S.O. 1990, c. P 33 (POA). The certificate was filed with the court on January 30, 2023 (certificate #3398736F). The applicant served a notice of constitutional application on July 26, 2024, alleging a breach of his right to be tried within a reasonable time guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms (the Charter) and seeking a stay of proceedings pursuant to s. 24(1).

[2] The respondent, Ms. Gail Hume for the Region of Halton, responded to the motion orally in court on August 27, 2024, arguing that s. 11(b) is not violated because the delay falls below the presumptive 18-month ceiling outlined in Jordan. I directed that the trial proceeds, indicating that I would render a decision on the motion, and if need be, on the trial on a subsequent date. The date of September 20, 2024, was selected for judgement.

[3] On September 17, 2024, I requested further evidence or submissions from both parties on the following questions: i) Is the period from filing of a certificate to an early resolution meeting defence delay? If so, why?, ii) In this case, was there exceptional delay in booking an early resolution meeting? If so, why?, and iii) If there was a COVID-related backlog involved, what evidence supports this?

[4] The respondent made further directed submissions via email, while the applicant’s representative made brief directed oral submissions in court on September 20, 2024.

[5] For the reasons contained herein, I find that s. 11(b) has been violated and the motion is granted. The matter is stayed pursuant to s. 24(1) of the Charter.

The Position of the Parties

[6] The applicant claims that the period from the issuance of the certificate of offence to the anticipated end of trial is 19 months and 7 days. The applicant highlights that the bulk of this time ran from the filing of the certificate on January 30, 2023, to the early resolution meeting on February 6, 2024 (a period of more than 12 months). The applicant argues that this time is not defence delay, but rather “institutional delay”, as it was outside of the defendant’s control. Further, the applicant argues that early resolution meetings are a legitimate part of the provincial offences process, akin to trials, and ought to be viewed as a part of the 18-month period outlined in Jordan.

[7] The applicant highlights other relevant dates in his application: i) the option for an early resolution meeting was selected by the defendant on February 3, 2023, ii) disclosure was requested via legal representative on January 16, 2024, iii) disclosure was provided by the prosecution on February 5, 2024 via email, iv) following an unsuccessful early resolution meeting a trial date was booked administratively for May 31, 2024, and v) the trial was adjourned for continuation due to a lack of time to August 27, 2024. The applicant argues that none of the above periods ought to be deducted as defence delay.

[8] The respondent does not dispute the above dates, but argues that the period leading to the early resolution meeting is defence delay. As this is the bulk of time in this case, attributing it to defence delay would put the net delay well below the 18-month presumptive ceiling. The respondent submits the cases of Coulter, DeBoer and Guiste to support the contention that “resolution discussions” ought to be categorized as defence delay, and that the defendant ought to have done more to move the case along.

Issues and Analysis

Is the period leading to an early resolution meeting defence delay?

[9] To determine whether any period in this case can be categorized as defence delay I turn to the Supreme Court cases of Jordan and Cody. Jordan outlines the criteria to be applied when assessing defence delay.

[10] Jordan divides defence delay into two categories: i) delay waived by the defence, and ii) delay caused solely by the conduct of the defence.

[11] I turn first to the issue of waivers. The Court explained that a defence waiver can be either explicit or implicit, but must always be “informed, clear and unequivocal”.

[12] In this case, there is no period during which s. 11(b) was explicitly waived by the defence. Nor is there, in my view, any period during which s. 11(b) was implicitly waived by the defence. Simply selecting an option to meet with a prosecutor at an early resolution meeting does not involve an informed, clear, and unequivocal waiver of s. 11(b), particularly for self-represented individuals.

[13] Although the respondent argues that requesting an early resolution meeting and the ensuing period is defence delay, the respondent does not address if – or how – this action could be viewed as an implicit waiver of s. 11(b). Indeed, I do not believe the respondent is making such an argument.

[14] Importantly, the option to request an early resolution meeting in response to a charge under part I of the POA is codified at s. 5.1 of the Act. I take notice that in the Region of Halton it is one of three official options provided to defendants: i) pay the ticket, ii) book an early resolution meeting with a prosecutor, or iii) book a trial. As a formal option, a request to meet with a prosecutor does not (nor should it) come with the need to waive s. 11(b). Early resolution meetings benefit the prosecution, the Court, and defendants by significantly reducing the number of matters that proceed to trial. This enhances overall efficiency and works to ensure timely justice. It would be counterproductive to effectively penalize defendants who choose this option.

[15] I turn next to the issue of causation. The period leading to an early resolution meeting cannot be viewed as being caused solely by the conduct of the defence. As stated, defendants who select this option are taking a legitimate step to respond to a charge(s), and have no control over the meeting date provided. Section 5.1(3) of the POA stipulates that the clerk of the court shall provide a defendant with notice of the early resolution meeting date and time, as soon as is practicable. The availability of meeting dates and times undoubtedly depends on several factors outside the control of defendants, and varies between defendants and court locations. In one location a defendant may wait 1-3 months for an early resolution meeting, which seems reasonable. In another, a defendant may wait for 12 months or more, as in this case, which seems unreasonable. Thus, this period cannot logically be viewed as having been caused solely by the conduct of the defence.

[16] If one were tempted to argue that a request for an early resolution meeting is defence delay, because a defendant “caused” the meeting to take place, in lieu of a timelier trial, it would not be in keeping with Jordan and Cody. At para. 29 and 32 of Cody the Court states:

29 However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, at para. 65). (emphasis added)

32 Defence conduct encompasses both substance and procedure -- the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. (underline added)

[17] As stated, an early resolution meeting is an action legitimately taken to respond to the charges, and therefore falls outside the ambit of defence delay as outlined by the Court. Furthermore, there is no evidence in this case to suggest that simply requesting an early resolution meeting is an action designed to cause delay or is markedly inefficient or indifferent. Indeed, it is difficult to imagine a scenario where this would be the case.

Are requests for early resolution meetings the same as adjournments for resolution discussions?

[18] The respondent argues that “resolution discussions” have been found to be defence delay in numerous cases, which I accept. For example, in Coulter the Court assessed 6 months related to resolution discussions as defence delay (a portion having been expressly waived and a portion caused by defence actions). Other courts have certainly made similar findings. However, in my view, there is a clear contextual distinction between early resolution meetings booked in response to a part I certificate, and adjournments requested to pursue resolution discussions.

[19] An early resolution meeting is a formal option that should normally result in a meeting with a prosecutor within a relatively short period of time. It is a procedural step available to all defendants, which is built into – and already accommodated by – the 18-month presumptive ceiling. It is an option that is selected out of court, off the record, and does not have the scrutiny of judicial oversight. In most cases, defendants do not have the benefit of legal advice at this early stage.

[20] In contrast, a defence request for adjournment made on an existing court date for the express purpose of pursuing resolution discussions is not a built-in procedural step. The discretionary decision by a justice of the peace to grant or deny an adjournment request provides both parties an opportunity to provide input to the reasons for the adjournment and the return date. Further, a defendant will be able to expressly waive s. 11(b) on the record, to support the adjournment request, if appropriate. At this stage, defendants have had reasonable time to seek legal advice and benefit from the assistance of the justice of the peace if they are self-represented.

[21] Ultimately, individual judges or justices of the peace deciding a s. 11(b) motion must assess defence delay on a case-by-case basis, applying the criteria outlined in Jordan against the facts. This may include assessing the period leading up to an early resolution meeting. When doing so, it is important in my view, not to conflate early resolution meeting requests with adjournment requests meant to pursue ongoing resolution discussions.

Is the Jordan ceiling exceeded in this case?

[22] The 18-month presumptive ceiling established in Jordan applies to all part I POA proceedings. The applicant bears the onus to prove on a balance of probabilities that his right to trial within a reasonable time guaranteed under s. 11(b) of the Charter was breached. In cases where “the evidence does not establish whether or not the appellant’s rights were infringed, the court must conclude that they were not.”

[23] The Jordan framework to calculate delay was explained succinctly in Coulter. The evidence in this case (the court documents before me) leads me to conclude the following: i) the total delay from filing of the certificate on January 30, 2023, to the anticipated end of the trial on August 27, 2024, is 18 months and 29 days, ii) there is no defence delay, iii) the net delay is therefore, 18 months and 29 days, and thus, iv) the net delay exceeds the 18-month presumptive ceiling and is presumptively unreasonable.

[24] The respondent submits that a residual backlog from the COVID-19 pandemic, which has been well established as a discrete event, continues to exist in the Region of Halton and has an ongoing negative impact on the timeliness of early resolution meetings. I accept that the Region of Halton faces challenges post-COVID, and has made concerted efforts to reduce backlog. However, 12-plus months to attend an early resolution meeting is concerning, notwithstanding residual pressures. I have not received evidence to substantiate if, and to what degree, the backlog impacted this case. In the absence of such evidence, the respondent has not met the threshold to rebut the presumption.

Conclusion

[25] The applicant’s motion is granted, as he has proven on a balance of probabilities that his right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter has been violated. The applicant is correct that the period leading to an early resolution meeting is not defence delay, and is built-in to the 18-month presumptive ceiling. Courts are required to provide dates for early resolution that are mindful of the Jordan timelines, recognizing that many defendants will choose to pursue a trial where efforts at early resolution fail. A stay of proceedings in this case is the appropriate remedy under s. 24(1) of the Charter.

T.J. Howard, Justice of the Peace Released: September 20, 2024