Halton (Regional Municipality) v. Flaum, 2025 ONCJ 233
Ontario Court of Justice
Date: February 28, 2025
Application heard: January 21, 2025, Burlington, Ontario
Ruling and reasons released: February 28, 2025, Burlington, Ontario
Parties:
The Region of Halton (Respondent)
— and —
Lorin FLAUM (Applicant)
Counsel:
Ms. P. Chislett for the Respondent
Ms. L. Flaum for the Applicant
Justice of the Peace: T.J. Howard
RULING ON s. 11(b) CHARTER APPLICATION
Introduction
[1] The applicant, Ms. Flaum, is charged with a single count of failing to stop at a red light (red light camera system), contrary to s. 144(18.1) and pursuant to s. 207 (as the vehicle owner) of the Highway Traffic Act, R.S.O. 1990 c. H.8, as amended. It is alleged that the applicant committed the offence on January 17, 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, as amended. The certificate was filed with the court on February 3, 2023 (certificate #1260-997-23-20120015-00). The first trial date was November 15, 2024. The applicant served a notice of constitutional application on December 13, 2024, via email. This was filed with the provincial offences’ office on December 20, 2024. The application alleges a breach of her right to be tried within a reasonable time guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms (the Charter) and seeks a stay of proceedings pursuant to s. 24(1).
[2] The respondent, Ms. Chislett for the Region of Halton, replied to the motion orally in court on January 21, 2025, arguing that s. 11(b) is not violated because the delay falls below the presumptive 18-month ceiling outlined in R. v. Jordan, 2016 SCC 27. I reserved for a ruling on the application to February 28, 2025.
[3] 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
[4] The applicant claims that the period from the issuance of the certificate of offence on January 17, 2023, to the first date of trial on November 15, 2024, is approximately 21 months. The applicant highlights that the bulk of this time ran from the filing of the certificate on February 3, 2023, to the early resolution meeting on July 30, 2024 (a period of 17 months and 28 days). The applicant argues that this time is not defence delay. The period from the early resolution meeting to the first scheduled trial date was an additional 3 months and 17 days. The applicant concedes that on the date of trial the matter was further adjourned at her request to January 21, 2025, to allow her to file this application. The applicant accepts that this is defence delay. The applicant also concedes that she failed to order transcripts for the November 15, 2024, trial date but argues that it should have no bearing on the matter.
[5] The respondent makes both a procedural and substantive argument. On procedure, the respondent argues that the lack of transcripts is procedurally unfair because the prosecution cannot meaningfully respond to the application. The respondent argues that the application should be dismissed for this reason. The respondent submits the following cases to support this position: Halton (Regional Municipality) v. Phan, [2024] O.J. No. 3599 and R. v. Franklin, [1991] O.J. No. 3387. In the alternative, should I consider the application without the transcripts, the respondent argues that the defendant failed to take meaningful steps to expedite the case both ahead of the early resolution meeting and ahead of the trial. Further, the respondent argues that the defendant delayed the proceedings by waiting 30 days to file her request for an early resolution meeting and by making a late disclosure request.
[6] Two additional procedural issues arose in court on January 21, 2025. First, the defendant was not arraigned. Second, the affidavit of service attached to the defendant’s application was not sworn. At the time these issues were discovered the defendant had already left the court and efforts to get her back were unsuccessful. I welcomed submissions from the respondent, who agreed that submissions from both parties could be heard on February 28, 2025.
[7] To remedy this, the applicant was arraigned and entered a plea on February 28, 2025. Further, I heard evidence under oath from the applicant regarding her service of the application. I was satisfied that service was proper and jurisdiction for me to consider and rule on the application was established.
Issues and Analysis
Is the lack of transcripts procedurally unfair in this case?
[8] In my view, nothing turns on the lack of transcripts in this case. The defendant concedes that the period from November 15, 2024, to January 21, 2025, is delay caused solely by her. There is no need to analyze the transcripts. The relevant period in this case is from February 3, 2023 (filing of certificate) to November 15, 2024 (first trial date). There are no transcripts available for this period.
[9] Both cases submitted by the respondent point to the need for transcripts that are relevant to the period in question. For example, in Franklin, supra at para. 16 the Court states, “transcripts relevant to the application should certainly be delivered and filed” [emphasis added]. Similarly, in Phan, supra at para. 6 the Court states, “no transcripts were available to be considered….transcripts were necessary to understand why Mr. Phan’s matter was adjourned…” [emphasis added]. In both cases the issue was that relevant transcripts were missing, which prevented the prosecution and the Court from meaningfully analysing the period material to the application. That is not the case here.
Is the period leading to the early resolution meeting defence delay?
[10] In keeping with my ruling in Halton (Regional Municipality) v. Grewal, [2024] O.J. 4218 (see paras. 9 to 17), I find that no period between filing of the certificate and the early resolution meeting is defence delay. In fact, the period leading to the early resolution meeting in this case is significantly longer than in Grewal. In this case, almost the entire 18-month ceiling was consumed waiting for an early resolution meeting.
[11] I disagree with the respondent’s position, that the defendant ought to have taken steps to move the early resolution meeting forward to avoid delay. As I explained in Grewal, supra at para. 15, early resolution meetings are set by the clerk of the court and are influenced by various factors well outside the control of the defendant. It stands to reason that the clerk of the court sets the earliest available date and could (and perhaps should) follow up with defendants where earlier dates become available.
[12] Lastly, neither the 30 days ahead of requesting an early resolution meeting, nor the “late” disclosure request have any real impact here.
Conclusion
[13] The total delay in this case runs from the filing of the certificate on February 3, 2023, to the anticipated end of trial on November 15, 2024, a period of 21 months and 13 days. None of this is defence delay, thus the net delay is also 21 months and 13 days. The respondent has not demonstrated that this case is complex, nor impacted by a discrete event. Therefore, the applicant’s right to be tried in a reasonable time guaranteed by s. 11(b) of the Charter has been violated. A stay of proceedings pursuant to s. 24(1) of the Charter is the only appropriate remedy.
Howard, T.J., Justice of the Peace