Ontario Court of Justice
Date: March 24, 2025
Court File Numbers:
- 4860 999 24 24100008-00 1 FA
- 4860 999 24 24100008-00 2 FA
- 4860 999 23 23101035-00 1 FA
- 4860 999 23 23101035-00 2 FA
- 4860 999 23 23100878-00 1 FA
- 4860 999 23 23100878-00 2 FA
Between:
His Majesty the King
— and —
Luciano Battiston
Before Justice of the Peace R. Shawyer
Heard on February 27, 2025
Reasons for Judgment released on March 24, 2025
Counsel:
- McPherson, J – counsel for the Prosecution
- Tomovski, R – counsel for the Defendant
Introduction
[1] On February 27, 2025, the Court heard the defendant, Luciano Battiston’s (hereinafter the “defendant”), Charter Application (hereinafter “application”). The relief that the defendant sought in his application was a stay of proceedings. The defendant argued that even though his matter was set for trial and scheduled to be completed in under 18 months from the date the original information was laid, nevertheless his section 11(b) Charter rights were violated.
[2] The charges before the Court stem from an accident that took place on October 30, 2023. On this date the defendant was making a left turn onto Dufferin Street from Ridelle Avenue in the City of Toronto. While making this left turn the defendant struck two pedestrians (hereafter the “accident”). As a result of the accident both pedestrians were injured and one of the pedestrians eventually succumbed to their injuries while in hospital.
Court being seized
[3] During the proceedings there was some discussion about whether the Court would be seized with hearing a trial in this matter if the defendant’s prayer of relief for a stay of proceedings was denied. The discussion came about because the defendant appeared before this Court on December 17, 2024, when the matter was adjourned to February 6, 2025, for a second trial date, which this Court was coincidentally scheduled to hear even though it was made clear on the record on December 17, 2024, that the Court was not seizing itself of the defendant’s matter.
[4] The night before the second trial date it was brought to the Court’s attention that the defendant had filed and was going to argue a Charter Application seeking a stay of proceedings. However, on February 6, 2025, when the defendant was scheduled to proceed with their trial late disclosure of prosecution evidence necessitated a further adjournment. Therefore, the Court seized itself of the defendant’s Charter Application but did not seize itself of the defendant’s trial.
[5] The Court seized itself of the Charter motion but not the trial if it were to proceed to ensure that the Court was not the cause of any delay in resolving the defendant’s matter. There were two reasons for this. The first reason was to ensure that the defendant’s matter could be scheduled to start and be completed within 18 months if the matter proceeded to trial. The second reason, that was not articulated on the record on February 6, 2025, was so that in case the defendant’s Charter Application had to be adjourned after the Court heard oral arguments to allow the Court to consider its decision the Court would not be contributing to any delay: See R. v. Mengistu, 2024 ONCA 575 at paras. 24-37.
[6] In criminal matters a judge who hears pretrial motions and applications is seized with the defendant’s matter if it proceeds to trial: See R. v. Rahey, 1987 SCC 20, [1987] 1 SCR 588 at para. 16; footnote 13 in Ch. 4 of the Lesage Code Report of the Review of Complex Criminal Cases and Procedures, which led amendments to the Criminal Code of Canada, RSC 1985, c C-46; and R. v. Guindon, 2002 ONSC 927 at paras. 13–17, 21–22, and 28. However, it appears that when charges are laid under the POA a Justice who hears pretrial motions or applications in a defendant’s matter is not necessarily seized of the defendant’s matter if it proceeds to trial.
[7] In St. Marys Cement Corp. v. R., 1996 ONCA 1344 (commonly referred to as R v. Eton Construction Ltd and hereinafter “Eton Construction”) the Ontario Court of Appeal (ONCA) stated the following at unnumbered paras. 2–5:
In these two cases, the appellants sought to prevent their trials from taking place before justices of the peace and requested an order that they be tried by a provincial court judge. In both instances their request was denied. They brought applications pursuant to s. 140 of the Provincial Offences Act, R.S.O. 1990, c. P.33, s. 2, for relief in the nature of certiorari and mandamus and for a remedy under s. 24 of the Canadian Charter of Rights and Freedoms ("Charter"). On November 13, 1991, the Honourable Mr. Justice Borins of the Ontario Court of Justice (General Division) dismissed their applications. They appeal to this court from that decision. The reasons of Borins J. are reported as Eton Construction Co. v. Ontario, 1991 ONSC 7102, 6 O.R. (3d) 42, 68 C.C.C. (3d) 219.
Although the Crown took the position that the appellants' applications were raised prematurely at the supervisory level by way of application for prerogative relief, Borins J. concluded that he could properly exercise his discretion to hear the applications and consider granting the relief sought. While he could not have anticipated the extent of the delay which did ensue, I think, in hindsight, that it is unfortunate that Borins J. exercised his discretion in the manner that he did.
There have been numerous warnings by the Supreme Court of Canada and by this court to the effect that Charter issues should be raised at and determined by the court of first instance along with the merits in order to avoid the risk of delay, the fragmentation of the trial process and multiplicity of proceedings: see R. v. DeSousa, 1992 SCC 44, R. v. Duvivier, 1991 ONCA 7174, and R. v. Martin, 1991 ONCA 7340, affirmed 1992 SCC 93. The present cases are a good illustration of the dangers. Nearly six years have elapsed since the charges were laid and the trial has yet to commence.
There is another consequence to this bifurcation of proceedings that is referred to specifically in Duvivier, supra, at p. 54 O.R., p. 24 C.C.C.: the need to decide an issue on an inadequate record. On September 16, 1992, the appellants were permitted to file a 52-page factum which dealt at length with the Charter arguments disposed of by Borins J. On March 4, 1996, the appellants filed a 13-page supplementary factum in which they raised a new ground of appeal which was not stated in the notice of appeal, namely, the failure to exercise and the improper delegation of authority of two Regional Senior Judges in the selection of justices of the peace rather than provincial court judges to act as trial judges. Leave to file a new factum, or raise a new ground of appeal, was not sought in accordance with rule 61.08 of the Rules of Civil Procedure. Additionally, as a practical matter, we have no record before us to determine factually if there is any basis for the appellants' contention that the charges involve matters of unusual complexity. For both these reasons, we declined to decide the issues raised by the new ground of appeal.
[8] The ONCA decision in Eton Construction amounts to a non-binding practice direction to the lower Courts. The ONCA’s admonition in Eton Construction was repeated a year later by the ONCA in R. v. DDM Plastics Inc., 1997 ONCA 14541 (hereinafter “DDM Plastics Inc”).
[9] In addition to the ONCA decisions in Eton Construction and DDM Plastics, Justice M.T. Devlin of the Ontario Court of Justice (OCJ) weighed in on whether a Justice hearing Charter application before the start of a POA trial is seized of the trial if a trial follows:
A “best practices” approach would entail having the Defendant arraigned prior to hearing the Charter Application because it is only after arraignment that the justice of the peace is formally seized with the matter. Arraignment includes having the charge read, asking the Defendant how he pleads, “guilty” or “not guilty”, and noting the plea on the Information. To do otherwise and commence a Charter Application prior to arraignment or midway through the arraignment and prior to the plea being entered, would allow a party who received an unfavourable decision on the Charter to request that the trial commence before a different justice of the peace since the first one was not seized. If this were to happen, the parties would be able to reargue the Charter Application since the new justice of the peace would not be bound by the original Charter decision. This absurd legal outcome and case management headache would be properly prevented by having the plea entered and noted on the Information prior to addressing the Charter Application: See R. v. Byrnes, 2013 ONCJ 631 para. 8.
[10] The obiter in Eton Construction, DDM Plastics Inc., and Byrnes is logical, practical and are statements that this Court agrees with. However, it appears that these cases stand for the proposition that in POA matters Justices hearing pretrial matters are not necessarily seized of the defendant’s matter if the matter proceeds to trial.
Background
[11] After the accident on October 30, 2023, the Toronto Police Service (“TPS”) officers called to the scene and charged with investigating the accident did not charge the defendant. As a result, the defendant was allowed to leave the scene of the accident.
[12] On November 2, 2023, an information (hereinafter the “original information”) relating to the accident was sworn by a member of the TPS. After the information was sworn the defendant was contacted by a member of the TPS. He was asked to attend a TPS Station in relation to the accident. When the defendant attended at the TPS Station as requested he was charged with two counts of careless driving causing bodily harm contrary to s. 130(3) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (hereinafter “HTA”). At the same time the defendant was also issued a summons to appear in Court for the first time on January 4, 2024.
[13] On December 19, 2023, a replacement information was sworn. This information replaced the original information (hereinafter the “second information”).
[14] On January 5, 2024, a third information (hereinafter the “third information”) was sworn. The difference between the original information(s) and the third was that the original information(s) charged the defendant with careless driving causing bodily harm (x2). Whereas the third information charged the defendant with one count each of careless driving causing death and careless driving causing bodily harm pursuant to s. 130(3) of the HTA. The third information was laid to reflect the fact that after the first two informations were laid one of the pedestrians that the defendant is alleged to have hit with his vehicle on October 30, 2023, succumbed to their injuries.
[15] On September 20, 2024, both the original two informations and the third information were before the Court. After confirming which informations were before the Court the prosecution advised that it would only be proceeding on the third information and requested that the first two informations be marked withdrawn on consent.
[16] On December 17, 2024, counsel for the defendant and the prosecution appeared for what was anticipated to be the start of the defendant’s 2-day trial. At the start of the hearing the prosecution advised the Court that further disclosure was provided to counsel for the defence the week prior to the start of trial and that one item of disclosure, communication tapes, was still outstanding. Therefore, counsel for the defence and prosecution advised the Court an adjournment was being requested on consent, which the Court granted, and new trial dates were scheduled for February 6 and March 21, 2025.
[17] On February 6, 2025, the trial was adjourned. The trial was adjourned because the defence had filed an 11b Charter Application and had received 13 hours of audio tape evidence the night before.
[18] On February 27, 2025, the defendant’s Charter Application was argued. After the Court heard the parties’ arguments, the Court advised the parties of the Court’s decision and told the parties that reasons for its decision would follow. These are those reasons.
The Law and Analysis
[19] Section 11(b) of the Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (hereinafter the “Charter”) provides that any person charged with an offence has the right to be tried within a reasonable time. In R. v. Jordan, 2016 SCC 27, at paragraph 19 the Supreme Court of Canada reiterated the importance of a defendant’s right to be tried within a reasonable time:
[The] right to be tried within a reasonable time is central to the administration of Canada's system of... justice. It finds expression in the familiar maxim: "Justice delayed is justice denied". An unreasonable delay denies justice to the accused...and the public as a whole.
[20] The Supreme Court set the ceiling beyond which delay is presumptively unreasonable at 18 months for charges that are tried by a provincial court of justice: See Jordan at para. 49. After the Supreme Court’s decision in Jordan the ONCA in R. v. Nguyen, 2020 ONCA 609, made it clear that the presumptive ceiling of 18 months applies to provincial offences contained in Part I and Part III of the Provincial Offences Act, R.S.O. 1990, c. P.33 (hereinafter the “POA”): See Nguyen at paras. 21, 22, and 26 and R. v. Battigaglia, 2023 ONSC 5267 at para. 19.
[21] Fairburn J.A. on behalf of a unanimous Court of Appeal in R. v. S.A., 2024 ONCA 737 succinctly set out the law that governs 11b Applications seeking a stay for delay below the 18-month ceiling set by the Supreme Court in Jordan. On behalf of the Court Fairburn J.A. wrote the following:
(a) The presumptive ceiling
21 Central to the Jordan framework is the “ceiling beyond which delay is presumptively unreasonable”: Jordan, at para. 49. This ceiling — 30 months in the Superior Court of Justice and 18 months in the Ontario Court of Justice — is the “most important feature” of the new framework: Jordan, at para. 49.
22 Ceilings are intended to provide “meaningful direction” to those working within the administration of justice about their s. 11(b) obligations, and to encourage conduct and the allocation of resources that promote timely trials: Jordan, at paras. 50, 107. Toward that end, ceilings offer participants in the criminal justice system the ability to know in advance the bounds of reasonableness, thereby allowing them to take pro-active measures to remedy any delay that could become unreasonable in nature: Jordan, at para. 108.
23 In setting the ceilings, the Jordan majority was alive to the real world within which the administration of criminal justice operates and well aware that “resource issues are rarely far below the surface of most s. 11(b) applications”: Jordan, at para. 117. To this end, the ceilings set in Jordan were said to “reflect[] the realities we currently face”: Jordan, at para. 57.
(b) Cases below the ceiling
24 The majority signaled that stays of proceedings under the ceiling will occur only in rare cases where there is clearly unreasonable delay: Jordan, at para. 48. By remarking upon the anticipated rarity of staying cases under the ceiling, the majority made specific note of three factors that had been considered in calibrating the ceilings of 30 months for cases in the Superior Court of Justice and 18 months for cases in the provincial court: the increased complexity of cases, their inherent needs, and a certain “tolerance for reasonable institutional delay”: Jordan, at para. 83.
25 As explained above, the defence may establish unreasonable delay below the ceiling only if the defence can establish two things, 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” (emphasis in original): Jordan, at para. 82; see also R. v. K.J.M., 2019 SCC 55, at paras. 4, 70, 104. In determining whether a case took markedly longer than it should have, case-specific factors will inform how to characterize the delay: Jordan, at para. 51; K.J.M., at para. 75. Those factors will include the complexity of the case, any local conditions that may be operative, and whether the Crown took reasonable steps to expedite the proceedings: Jordan, at para. 87.
26 As for local conditions, trial judges “should ... employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances”: Jordan, at para. 89. At the end of the day, trial judges assessing whether the case has taken markedly longer than what was reasonably required are advised to “step back from the minutiae and adopt a bird’s-eye view of the case”: Jordan, at para. 91.
[22] For a defendant to establish a below-ceiling breach of their s.11(b) Charter right, they must satisfy two criteria on a balance of probability. Those criteria are (1) did the defence take meaningful steps demonstrating a sustained effort to expedite the proceedings; and (2) did the case take markedly longer than it reasonably should have? These criteria were outlined in Jordan at paras 82 and 83 and K.J.M., at paras. 4, 70, 104.
[23] When assessing those criteria and determining whether a stay is warranted below the 18-month ceiling set out in Jordan for a matter before a provincial court a Court must be mindful of two things. The first is that stays for matters under 18-months are rare. The second is that a stay under 18 months should only be ordered in the clearest of cases: See R. v. S.A. para 35.
1. Defence Efforts
[24] When assessing the efforts that the defence made to expedite getting the matter to trial a Court must assess two things. Those two things are (1) what the defence could have done and (2) what the defence did to get the matter to trial as fast as possible. With that said the defence is expected to act reasonably, not perfectly: See Jordan at paras 84 and 85 and R. v. Stefan, 2024 ONCJ 565 para. 10.
[25] The original information charging the defendant with careless driving causing bodily harm was sworn November 2, 2023. This was three days after the alleged offence date.
[26] On November 10, 2023, the defendant was contacted by the police and asked to attend a Toronto Police Service (“TPS”) station that same day. When the defendant went to a TPS station as requested on November 10, 2023, he was charged with two counts of careless driving causing bodily harm. After being charged the defendant was given a summons to appear in Court on January 4, 2024.
[27] After being charged but before his first Court date the defendant retained counsel. However, it is not clear from the defendant’s factum in support of his Charter Application (hereinafter “Factum”) when he retained counsel.
[28] The defendant through counsel requested disclosure from the prosecution using the City of Toronto’s Disclosure Request Form. However, City of Toronto disclosure request forms have no place to indicate the date that the form is filled out and submitted. However, defence counsel, as an officer of the Court, advised the Court the defendant made his initial request for disclosure on or around November 11, 2023. Therefore, the Court accepts as a fact that the defendant made his initial request for disclosure on or around November 11, 2023.
[29] On January 4, 2024, 63 days from the date the original information was laid, counsel for the defendant appeared for the defendant’s initial Court appearance as his agent. Counsel for the defendant advised that he had not received initial disclosure from the prosecution despite having requested it. The defendant’s matter was then adjourned to May 26, 2024. Later in the day defence counsel wrote to the prosecution requesting disclosure. In his email defence counsel advised the prosecution that as of the date of his email he had only received 1 page of disclosure, which was a 1-page motor vehicle collision report.
[30] On January 5, 2024, 64 days from the date the original information was laid, a new information was laid. This new information charged the defendant with one count of careless driving causing bodily harm and one count of bodily harm causing death contrary to s. 130(3) of the Highway Traffic Act.
[31] On February 19, 2024, 109 days from the date the original information was laid, counsel again wrote to the prosecution requesting disclosure. In his email defence counsel noted that he had received initial disclosure but noted there were 12 outstanding items of disclosure he still required. All the outstanding disclosure requested by defence counsel on this date was significant disclosure that the defendant would need to be able to put forward a full answer and defence to charges before the Court.
[32] On February 29, 2024, 119 days from the date the original information was laid, counsel for the defendant appeared as agent for the defendant in Court. According to the defendant’s Factum the defendant was made aware of this Court date pursuant to a new summons that was issued. On that date defence counsel advised the Court they had “recently received initial disclosure…There is a lot of – there are a lot of items that are outstanding…that [he] wrote the prosecutor for.” [1]
[33] On May 28, 2024, 208 days from the date the original information was laid, the matter returned to Court for the third time. When the matter was spoken to the prosecutor in Court that day advised that there were 3 informations before the Court. During this appearance defence counsel advised the Court that the prosecutor in Court advised him that “the assigned prosecutor is getting those things (the disclosure requested by the defence) to me, likely today.” [2] Defence counsel then advised the Court that the defendant was not “waiving 11b, in the circumstances because of the late disclosure.” [3]
[34] On June 4, 2024, 215 days from the date the original information was laid, defence counsel wrote to the prosecution requesting further disclosure for a fourth time. In his email on this date defence counsel noted that there were still 9 outstanding items of disclosure that he was waiting for. All the outstanding disclosure requested by defence counsel on this date was significant disclosure that was required by the defence to be able to put forward a full answer and defence to the charges.
[35] On June 5, 2024, 216 days from the date the original information was laid, defence counsel wrote to the prosecution requesting a copy of the accident reconstruction report. Defence counsel made this request on this date after finding out about the report from reading the officers notes according to the email he sent to the prosecution about the report. This was significant disclosure that the defence should not have had to learn about from reading an officer’s notes.
[36] On July 5, 2024, 246 days from the date the original information was laid, the matter returned to Court for the fourth time. Again, there were 3 informations before the Court. On this date the prosecutor in Court who was the prosecutor with carriage of this matter advised the Court that they had sought a Judicial Pretrial (hereafter “JPT”) placeholder date. They further advised that defence counsel had either agreed or had indicated that they were available on that date. Therefore, the matter was adjourned to a date after the JPT placeholder date and defence counsel advised that they had received the report (presumably the accident reconstructionist report [4]) that he had requested.
[37] On September 5, 2024, 308 days from the date the original information was laid, a JPT was held. On that date defence counsel indicated that disclosure was not complete. They advised that they were still waiting for medical records, a death certificate (presumably for the deceased victim), and an updated reconstructionist curriculum vitae.
[38] On September 20, 2024, 323 days from the date the original information was laid, the matter returned to Court for the fifth time. Again, there were 3 informations before the Court but the prosecution withdrew 2 of the informations so that only the January 5, 2024 information remained before the Court. On consent the remaining information was adjourned to the first day of a scheduled 2-day trial set to commence on December 17, 2024. Both counsels agreed to schedule the trial dates despite disclosure still being outstanding.
[39] On November 27, 2024, 391 days from the date the original information was laid, defence counsel again wrote to the assigned prosecutor requesting outstanding disclosure. In his email defence counsel noted that 8 different items of disclosure remained outstanding and reminded the prosecutor that trial was scheduled for December 17 and 18, 2024. All the outstanding disclosure requested by defence counsel on this date was significant disclosure.
[40] On December 17, 2024, 411 days from the date the original information was laid, the matter returned to Court for the sixth time. This Court appearance was scheduled to be the first day of a two-day trial. Instead the Court was advised that “counsel (defence) received a substantial amount of further disclosure last week…(and that) [o]ne item that still remains outstanding is communications tape.” [5] Therefore, on an unopposed basis the defence requested an adjournment of the trial and defence counsel advised the Court that 11b was not being waived “or any delay as a result of this adjournment…up to and including the new trial date” [6].
[41] On February 6, 2025, 462 days from the date the original information was laid, the matter returned to Court for the seventh time. Instead of proceeding with the Charter Application counsel for the defendant and the prosecution advised the Court that the defendant’s Charter Application scheduled to be argued before trial began had to be adjourned. The reasons for the adjournment were due to the fact there were issues with the time for service of the Applicant’s Charter Application and defence counsel had received 13 hours of audiotape disclosure the night before that needed to be reviewed in the event the defendant’s trial proceeded. Therefore, the parties were granted an adjournment to February 27, 2025, the time for service of the defendant’s Application was abridged, the Court seized itself of the defendant’s Charter Application, and new trial dates were set.
[42] When the defendant’s Charter Application was argued the prosecution conceded during oral argument that the defence did everything it could to expedite getting the matter to trial. Therefore, since the defence took all the meaningful steps it could and demonstrated a sustained effort to expedite the proceedings the Court is satisfied that the defence has met its onus in relation to the first criteria on a balance of probabilities.
2. Did the Case take markedly longer than it should have?
[43] For a Court to determine whether a case takes markedly longer than it should have from the date the information is laid case specific factors have to be looked at: See Jordan, at para. 51 and K.J.M., at para. 75. Those factors are (1) the complexity of the case, (2) local factors that may be operative, and (3) whether the Crown took reasonable steps to expedite the matter: See Jordan, at para. 87.
(a) Complexity of the Case
[44] In a unanimous per curiam decision [7] the Court in R. v. Cody, 2017 SCC 31 (hereinafter “Cody”) provided guidance to Courts tasked with applying the concept of a “particularly complex” case. In Cody at para. 64 a particularly complex case was described as follows:
Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative assessment. Complexity is an exceptional circumstance only where the case is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay will still exceed the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable (Jordan, at para. 80).
A particularly complex case is one that “because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time” (Jordan, at para. 77).
When determining whether a case’s complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case’s overall complexity. This is a determination which falls well within the expertise of a trial judge. (Jordan, at para. 79). [end of quote]
[45] Both the defence and the prosecution agreed that the matter before the Court was not complex. The defendant’s counsel argued that the issue at trial would be whether his client was driving carelessly at the time of the incident, which they argued is a straightforward legal issue. Counsel for the defendant also argued that there would be no Charter Applications or motions brought during the trial. Whereas the prosecution argued that there is likely to be an agreed statement of facts filed with the Court at the start of the trial and that 3 witnesses in total, 1 by the prosecution and 2 by the defendant, will be called. The prosecution also argued that should the defendant choose to testify in his own defence his counsel would likely bring an Edgar [8] application seeking to have prior utterances made by the defendant at the scene of the accident to a police officer deemed admissible.
[46] The Court agrees with counsel. Trial in this matter, in the event it proceeds, is scheduled to be heard over 2 days. A trial, if required, to resolve this matter would not be complex. As noted with an agreed statement of facts, 3 witnesses, no Charter issues, and an Edgar application a trial should not require an inordinate amount of Court time to be completed. Barring an unforeseen issue(s) arising a trial in this matter can be completed in 2 days of Court time.
(b) Local Factors
[47] In assessing local factors that may cause a case taking longer to get to trial than is reasonable a Court “should … employ the knowledge they have of their own jurisdiction [9], including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances”: See Jordan, at para. 89. In employing that knowledge, a Court must “step back from the minutiae and adopt a bird’s-eye view of the case”: See Jordan, at para 91.
[48] The ONCA has stated that the POA is intended to provide a speedy and efficient process for dealing with regulatory offences: See R. v. Jamieson, 1981 ONCA 3223, 64 CCC (2nd) 550 affirmed 1982 ONCA 3910, 66 CCC (2nd) 576 (Ont.C.A.) (hereinafter “Jamieson”) and Nguyen at para. 26. However, the ONCA also stated that the Supreme Court’s decision in R. v. K.J.M., 2019 SCC 55 “is categorical: the ceilings established in Jordan apply uniformly”: See Nguyen at para. 26. Therefore, even though the POA is meant to be speedier and more efficient than the criminal process so long as charges laid under the POA are disposed of within 18 months a defendant will be considered to have been tried within a reasonable amount of time.
[49] Just because charges laid under the POA are disposed of within 18 months means that a defendant’s right to be tried within a reasonable time has not been violated does not mean that we should be satisfied with this state of affairs. 18 months is a long time to wait for justice. However, the ceiling reflects the realities we currently face: See Jordan at para 57.
[50] In Toronto when a POA information is laid there are multiple ways that the information can come before a POA Court. For instance, a POA information can be sworn by a civilian employee of the TPS before a Justice of the Peace (hereinafter “Justice”) in an Intake Court. An information can also be brought to a clerk’s office for review and signing by a Justice outside of Court without an TPS civilian officer or employee being present. Or an information can be submitted electronically for review and signing by a Justice. Once an information is sworn it is sent to a defendant via mail rather than emailed to a defendant, which means many times a defendant is aware that they have a matter before a POA Court in Toronto.
[51] Once an information has been reviewed and signed by a Justice a defendant’s matter is heard in another Court other than where it was reviewed and signed by a Justice of the Peace.
[52] If the defendant elects to go to trial to resolve their matter the Court where the defendant appears for pretrial hearings is not necessarily the Court where the trial will take place. The reasoning behind this is that the jurisdiction of Toronto has 3 POA Courts. To ensure that a defendant gets the earliest possible trial dates prosecutors can and do ask for the defendant’s trial to be heard in one of the other Toronto POA Courts. That is what happened in this matter. The defendant’s pretrial hearings took place at Old City Hall in downtown Toronto; but the pretrial Charter Application and now the trial was scheduled at the POA court located at 2700 Eglinton Avenue West in the west end of Toronto. As happened in this case this system can lead to informations being lost; they get lost because they are not transferred between POA court locations electronically; they are, since the Toronto POA court system is still largely paper based, physically transported by the City of Toronto between POA courthouses. When an information is lost it sets up a potential that there is duplicate informations before the Court that cause administrative adjournment requests by the prosecution to get the paperwork for a defendant’s matter sorted out and ensure that the proper informations are before the Court. This is of course an inefficient system that leads to delay in getting a defendant’s matter before a POA court resolved in a timely manner; it also leads to the perception of justice delayed is justice denied despite the Supreme Court’s decision in Jordan.
[53] Due to the sheer volume of charges laid under the POA in Toronto it is not unusual for a defendant to have to wait months from the date a POA is laid before they get an initial court date. In this matter the defendant had to wait 64 days for a first court date. For a system that is supposed to be streamlined and more efficient as observed by the ONCA originally in 1981 and then again in 2020 just over 2 months is too long for a defendant to have to wait for an initial court date after being charged.
[54] When an information comes before a Justice for a pretrial hearing it is not unusual for a defendant to appear in a Court that has a very heavy list. The voluminous number of charges laid under the POA on a yearly basis and the limits of judicial resourcing have led to super tiers; a super tier is created when matters from two separate courts are combined and heard by a single Justice in one Court. If this were not bad enough when a defendant’s matter is before the Court a Justice is reliant on establishing the Court’s jurisdiction [10] to deal with the matter by reviewing a paper information that the Court clerk must retrieve from the Clerk’s office and bring to Court. If an information is not before a Court when the defendant’s matter is called it can lead to the defendant’s matter having to be held down to allow the Clerk to find the information.
[55] Often Justices presiding over a POA Court in Toronto adjourn a defendant’s matter due to disclosure issues. This leads to defendants coming before POA Courts in Toronto sometimes a dozen or more times before their matter(s) resolve. Luckily in this case the defendant had counsel and the defendant and/or his counsel only had to appear on three (3) occasions. However, every time a Justice adjourned the defendant’s matter in this case it was due to ongoing outstanding disclosure.
[56] Due to the significant amount of self-represented defendants who appear before the POA Courts in Toronto often defendants resolve their matters without reviewing the disclosure. They either do so because the matter is not complex, they are unaware of their right to disclosure, or if they know about disclosure how they go about obtaining their disclosure. If a defendant orders disclosure it most often is paper based disclosure that they receive either by picking it up in person or via email from the prosecutor with carriage of the matter. The issues with getting disclosure to defendants is archaic and lengthy as outlined below and is just a comment on the paper-based disclosure provided to defendants. When a defendant orders anything other than paper-based disclosure, referred to as multimedia disclosure, it causes further and sometimes very lengthy delays in resolving POA matters as was the case in the matter before this Court.
[57] On February 19, 2024, counsel for the defendant requested that the prosecution disclose 54 audiotape recordings made by TPS officers while at the scene of the accident amongst other disclosure that was requested. These recordings combined were approximately 13 hours total in duration.
[58] On September 20, 2024, despite significant disclosure being outstanding, including but not limited to the 54 audiotapes, on consent, the defendant’s matter was scheduled to be heard for trial on December 17 and 18, 2024. As the defendant’s initial trial dates approached the defendant’s counsel, on December 10, 2024, received 476 pages of e-paper disclosure, 26 separate multimedia files that were 10 hours in length in total. This necessitated an adjournment of the defendant’s trial, which was granted by the Court on December 17, 2024, at the request of the defendant and unopposed by the prosecution. The adjournment was granted because defence counsel needed time to review the new disclosure and the 54 audiotapes that had been requested still had not disclosed as of December 17, 2024. The defendant’s matter was set for a second time to proceed to trial on February 6, 2025, and March 18, 2025.
[59] On February 4, 2025, according to an email dated February 5, 2025, from the prosecutor with carriage of the defendant’s matter that formed part of the defendant’s legal factum in support of his Charter Application, the 54 audiotapes requested by the defence were received by the prosecution from the TPS. According to the prosecutor’s email the 54 audiotapes were disclosed to the defence on the morning of February 5, 2025. Therefore, the defendant’s 2nd scheduled trial and now his Charter Application that was scheduled to be argued on February 6, 2025, were adjourned to February 27, 2025, to hear the defendant’s Charter Application as a standalone matter before trial and to March 21 and April 14, 2025, for a third time for trial if the defendant’s Charter Application was unsuccessful.
[60] As the Court stated in its brief oral reasons for decision on February 27, 2025, the fact that the defence requested substantial disclosure from the prosecution on February 19, 2024, and disclosure was not fully provided to the defendant until February 5, 2025 – 342 days from the date TPS first received notice of the disclosure request – which necessitated not one, but two adjournments of the defendant’s trial is very concerning. It is very concerning because the TPS is aware of its obligation to provide complete disclosure of all evidence in its possession and as it becomes available as soon as possible. The TPS has been aware of this obligation since at least November 11, 1991, when the Supreme Court released their decision in R. v. Stinchcombe, 1991 SCC 45 if not before. There is simply no excuse for the TPS to not have provided disclosure to the prosecution, almost all of which, save and except for the accident reconstructionist report, was in its possession as of date of the incident or shortly thereafter.
[61] This is unacceptable and regrettably, as the Court heard disclosure in POA matters is not provided in the same manner as criminal matters. This together with submissions from the prosecution leads the Court to two conclusions. The first conclusion is that as the Supreme Court stated in Jordan at paragraph 57 the 18 months ceiling in provincial matters reflects the realities the Courts currently face when trying to resolve matters that come before POA Courts in Toronto. The second conclusion that the Court came to is that the TPS prioritizes its Stinchcombe obligation in criminal matters over its Stinchcombe obligation in POA matters. The Court will not address how it came to this second conclusion.
[62] During submissions, the Court asked the prosecution to address local factors. In response the prosecutor advised the Court as follows:
The prosecutors who are responsible for trying defendants charged under the POA do not have access to the Provincial Crown’s office Scope system, which provincial Crowns trying criminal cases use to communicate with one another about the status of criminal cases and track the progress of criminal charges as they make their way through the criminal court system. That means that for a POA prosecutor to get an update on what has transpired in a defendant’s POA proceeding, unless they have carriage of the prosecution from the time the information is laid until the charges are resolved, they have to either electronically or physically communicate with their colleagues who have dealt with a defendant’s POA charges to get an update;
Provincial prosecutors do not receive disclosure from the TPS the way of the Provincial Crowns who are responsible for trying criminal cases do. POA disclosure is received by way of an “archaic electronic system”, which the Court understands is called Versadex [11]. Disclosure for POA matters is processed and sent to provincial prosecutors by a civilian employee of the TPS through a TPS terminal located in the city prosecutor’s office. When disclosure is missing a provincial prosecutor must reach out directly to the officer who laid the POA charge to obtain it.
If multimedia disclosure, as was the case in this matter, is requested by defence counsel, then prosecutors must use another system to receive it. Two of the systems that the prosecution explained to the Court are used to receive multimedia disclosure are evidence.com or MOVEit [12]. If disclosure is required to be sent through evidence.com then the officer must send it through TPS video services. Whereas if MOVEIT is used to send multimedia disclosure then a prosecutor must download the program to their laptop to receive it.
[63] In addition to what was described by the prosecution, the Court understands that disclosure system is worse than described. It is the Court’s understanding that there is only one TPS terminal located in the city prosecutor’s office for the purpose of downloading disclosure. If the Court’s understanding is correct this would mean that if one prosecutor is using the terminal all the other prosecutors must wait their turn.
[64] From the outside looking in the POA prosecution system in Toronto can only be described as a system in shambles. It appears that the prosecutor’s office lacks an effective and proper file management system. Instead of having access to a modern file management and disclosure distribution software program, prosecutors are left managing their files and getting disclosure to defendants via a patchwork system that is held together by some “bailing wire and twine” [13] with a hope and prayer thrown in for good measure.
[65] If the disclosure system is as bad as the Court is led to believe, then it is no wonder why the POA Courts in Toronto have trial courts where multiple matters are set for trial on tiers that are only scheduled to last for 1 hour and 10 minutes but can last upwards of 1 hour and 30 minutes if required and the Court does not take a break. The POA trial system in Toronto, if the foregoing is correct, must be premised on the assumption that most trials set for a tier will not proceed for various reasons. This is how the system works in provincial criminal court as outlined in R. v. S.A., 2024 ONCA 737 at paras 39–41:
39 Whatever the reason, those trials that do not proceed on their trial dates fall within the “collapse rate”, something that has “always existed in the criminal courts”: R. v. Lui, 2024 ONSC 2022 at para. 26. As a direct result of the collapse rate and the desire to achieve maximum efficiency by not having courtrooms left empty, trial coordinators will deliberately overbook or “stack” trial lists. Code J. noted this reality in the Toronto region: “[t]here are almost always excess cases scheduled for trial in a given week because the reality is that a certain number of cases invariably ‘collapse’, either on the trial date, shortly before the trial date, or shortly after the trial date”: Lui, at para. 27.
40 A judicious use of stacking is to be encouraged, not discouraged, because it avoids leaving courtrooms empty and judges without trials. Done properly, stacking will generally reduce trial delays. Of course, there is a risk that, from time to time, such as in this case, not every trial will be reached as the collapse rate that week is less than anticipated. Where this happens, it is reasonable to expect that cases will be triaged taking into account constitutional demands. One would expect that those cases that risk breaching the Jordan ceiling will likely be given priority over cases such as this one, which was well below the ceiling and, therefore, presumptively reasonable.
41 In the real world, where resources are in fact finite, this is precisely the way that the administration of criminal justice must operate, with a view to meeting the constitutional requirements of each individual case within the context of the system as a whole. It brings to mind what Doherty J.A. wrote more than 25 years ago, “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources”: R. v. Allen, 1996 ONCA 4011 at para. 27, aff’d 1997 SCC 331.
[66] If the Court’s rationale is correct the rationale that underpins trial scheduling in criminal courts is the same rationale applied to trial scheduling in Toronto POA Courts. No other rationale would make sense. The Court’s rationale would also explain why trials in Toronto POA Courts are scheduled in what is being termed super tiers.
(c) Did Crown take reasonable steps?
[67] Since the matter before the Court is scheduled to start and finish before the 18-month ceiling established in Jordan the Court must start from the position that the state has brought the defendant to trial within a presumptively reasonable time: Again see R. v. S.A. at para 35. The Court is also mindful that if the Crown has done its part, it is unlikely that the time requirements of a case will have been markedly exceeded: See Jordan at paras. 90 and 112 and Stefan at para. 12.
[68] During oral argument defence counsel indicated that as of the defendant’s February 29, 2024, Court date they had initial disclosure and had requested further disclosure. He also indicated during oral argument that on February 29, 2024 he had “talked to her (the prosecutor) today, and she has kindly made efforts already underway, to get me those additional items (the requested further disclosure).” [14] A reasonable person would assume that with initial disclosure having been provided to defence counsel within 122 days of the offence date that the defendant’s matter would be ready to be set for trial forthwith. After all, all the disclosure, save and except for the accident reconstructionist report were in the possession of the TPS either as of the date the allegation arose or shortly thereafter. However, given the local factors as outlined above, the Court must step back from the minutiae and adopt a bird’s-eye view of the case.
[69] Stepping back from the minutiae and looking at the POA prosecution system in Toronto from a bird’s-eye view the Supreme Court’s comments in Jordan are apropos. The 18-month ceiling imposed by the Supreme Court in Jordan as it relates to provincial matters is unfortunately a realistic timeframe within which a defendant should expect their matters to be resolved; Not 13 or 14 months as argued by defence counsel citing the case of R. v. Bazos, 2021 ONSC 4627 at para. 21 in support of his position. The Court says this even though as the ONCA recently reaffirmed in Nguyen that the POA process is meant to be a speedy and efficient process.
[70] Given the local factors as the Court understands them; the volume of POA charges laid on a yearly basis in Toronto; until there is much needed reform to the POA system in Toronto the POA prosecution process cannot and should not be expected to be a speedy and efficient process. This is the unfortunate situation in Toronto’s POA Courts as of the date the defendant’s Charter motion was argued. It is unfortunate because defendants have a right to be tried within a reasonable time and should expect to have their matters resolved in less than 18 months. They should be resolved in no more than 13–14 months as argued by defence counsel in this Court’s opinion. However, that is not the reality that the citizens of Toronto are faced with when coming before the POA Courts in Toronto.
[71] Defence counsel argued that the defendant’s case was one of those rare cases where the Court should stay the proceedings even though they still had not reached the 18-month ceiling. Defence counsel argued that his client fell into the category of a “rare” case because:
the defendant took all reasonable steps to move the matter towards a resolution as soon as practicable, which the prosecution conceded;
there was no defence delay as was conceded by the prosecution; and
the matter was not complex as was also conceded by the prosecution.
[72] The Court does not agree that the defendant’s case is a “rare” case as argued by his counsel. The Court does not agree because given the local conditions so long as the defendant’s matter is started and resolved within 18 months the prosecution has brought the defendant to trial within a reasonable time.
[73] Even using the 1st trial date as the yardstick, see R. v. Belle, 2018 ONSC 6809 at para. 8, as argued by the defence the prosecution did everything it could reasonably do, given local factors, to get this matter resolved in under 18 months. The prosecution set the first trial date on September 20, 2024, even though disclosure was not yet complete. When the first trial date had to be adjourned because of disclosure issues the prosecution rescheduled the defendant’s trial to start within a reasonably short period of time given the volume of POA charges before the Court and the Court’s resources available to hear stand-alone POA matters that require 2 whole days of trial. Finally, when the 2nd trial date had to be adjourned due to disclosure issues caused by local factors and a third trial date had to be set the prosecution took all reasonable steps to make sure that trial dates were secured, albeit not on consecutive days, that would ensure that the defendant’s matter was resolved within 18 months.
Conclusion
[74] The relief that the defendant sought in his Charter Application was a stay of proceedings. This is the only relief that the defendant sought. It is the only relief sought because it was the only relief open to the defendant to seek: See R. v. Charley, 2019 ONCA 726, and in R. v. Hartling, 2020 ONCA 243.
[75] However, that does not mean a stay of proceedings may be the only remedy available to a Court when hearing an 11b application in the future. Writing on behalf of a unanimous Court Tulloch J.A. opined that there is merit to the argument that a Court does have jurisdiction to order a remedy other than a stay of proceedings based on the language of s. 24(1) of the Charter, which is a position that this Court agrees with. However, the question of whether a Court will have that jurisdiction will not be answered until there is a clear holding from the majority in a SCC decision about whether jurisdiction is lost after unreasonable delay: See R. v. Charity, 2022 ONCA 226 at para. 47.
[76] Until such time as there is a clear holding from a majority of the SCC the only option open to this Court is to determine whether to grant or deny the requested stay. In the matter before the Court the defendant’s request for a stay is denied. It is denied for the foregoing reasons.
Released: March 24, 2025
Signed: Justice of the Peace R. Shawyer
Footnotes
[1] February 29, 2024, Court transcript.
[2] May 28, 2024, Court transcript.
[3] Supra.
[4] Presumably because defence counsel did not indicate to the Court on this date what report they had been waiting for but did indicate that they were “going to forward that to the defence expert and be ready for the JPT with any report…(the defence) might ask the Crown to consider.”: July 5, 2024 Transcript.
[5] December 17, 2024, Court transcript.
[6] Supra.
[7] A per curiam decision of a Court of law is a unanimous decision of a Court of law sitting as a panel of judges, as opposed to sitting as a judge alone, where the decision delivered by the Court is not attributed to one particular judge sitting on the panel.
[8] R. v. Edgar (D.J.), 2010 ONCA 529, 269 O.A.C. 171 (CA).
[9] “Jurisdiction” in this instance means where the Court is physically located.
[10] “Jurisdiction” in this instance means the Court’s legal authority to deal with a defendant’s matter.
[11] Versadex is a suite of software applications, also known as Versadex PoliceCAD, that includes a Records Management System (RMS), Computer-Aided Dispatch (CAD), Mobile Report Entry (MRE), and Mobile Data Terminal (MDT), used by public safety agencies.
[12] MOVEit Transfer (formerly known as MOVEit DMZ or MOVEit File Transfer) supports the exchange of files and data between servers, systems and applications within and between organisations, as well as between groups and individuals using a common shared folder with simple browser access for users.
[13] The Court is using the phrase figuratively to describe a prosecution system that appears to be barely holding together, or that is put together in a makeshift and unreliable way.
[14] February 29, 2024, Court transcript.