Ontario Court of Justice
Date: January 23, 2025
Court File No.: City of Toronto 4862 999 00 7818612Z/14Z/15Z
Between:
His Majesty the King (City of Toronto)
— AND —
Giuseppe Agrippa
Before Justice of the Peace I. Szenes
Heard on December 10, 2024
Reasons for Judgment released on January 23, 2025
Counsel:
Mr. K. Sawyer — Municipal Prosecutor
Mr. R. Slawson — Agent for the Defendant
Reasons for Judgment
JUSTICE OF THE PEACE SZENES:
This is an application for a stay of proceedings for unreasonable delay pursuant to s.11(b) and s.24 of the Canadian Charter of Rights and Freedoms.
The Applicant, represented by licensed paralegal Mr. Slawson, argues that the total delay in bringing this matter to court is 22 months and 16 days, 4 and a half months in excess of the presumptive 18-month ceiling as laid out in the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27.
Mr. Slawson argues that the delay falls fully at the feet of the prosecution, including the period when the applicant, Mr. Agrippa, was convicted for failing to respond, after having filed Notices of Intention to Appear with the city online via his legal representative.
The Respondent, the City of Toronto, represented by Mr. Sawyer, does not take issue with the total length of the delay being 22 months and 16 days but argues that the Court is required to deduct defence delay from the total delay to calculate the net delay as per the Supreme Court of Canada’s decisions in R. v. Cody, 2017 SCC 31 and Jordan.
Issues
- There are three issues for this Court to consider in determining the net delay:
- Does s.11(b) of the Charter apply to appellate delay when the Applicant was convicted through no fault of his own and was successful in his reopening application?
- If so, how should that time be calculated by the court?
- Were any of the adjournments in this matter caused by action or inaction of the Applicant?
Does s.11(b) apply to appellate delay?
On January 24, 2023, the applicant was charged with three offences and was served at roadside by Toronto Police Officer Vo with Provincial Offence Notices for the offences of speeding contrary to s.128 of the Highway Traffic Act, failing to provide proof of insurance contrary to s.3(1) of the Compulsory Automobile Insurance Act, and failing to surrender the permit for the motor vehicle contrary to s.7(5)(a) of the Highway Traffic Act.
On the back of those notices were three options, including the option to request a trial, which is required to be done within the prescribed 15 days. This meant that Mr. Agrippa was required to file his Notices of Intention to Appear with the court administration by the end of the day on February 8, 2023.
The Applicant’s materials include a sworn affidavit indicating that the Notices of Intention to Appear (NIAs) were filed with the court on February 10, 2023. The applicant also provided “Case Status Summaries” in his materials filed with this court as proof that the Applicant filed NIAs for trial on February 9, 2023. Despite this discrepancy, both dates are after February 8, 2023.
The Applicant was subsequently convicted on a Fail to Respond docket on March 13, 2023, which came to his legal representative’s attention on March 29, 2023.
On April 11, 2023, an application to reopen the matters was filed in person with the court’s administration. The reopening application was granted and new trials ordered by a Justice of the Peace on April 26, 2023.
Following that, a Notice of Trial was sent by mail on June 7, 2024 advising both the Prosecution and the Applicant of the upcoming trial date set for July 23, 2024.
The Applicant argues that it was due to an administrative error that caused him to be placed on a fail to respond docket and convicted. The Applicant further argues that because a Justice of the Peace had reopened the matters in accordance with the Provincial Offences Act, thereby determining that the convictions were through no fault of the Applicant, this time should be considered as delay rather than be attributed to defence or neutral time. Additionally, he argued that the reopening process should not be considered in the same manner as an appeal with respect to appellate delay.
The Respondent argues that the reopening process is, in fact, a similar process to an appeal and therefore should be considered under the same lens as an appeal process because it provides the opportunity for defendants who have been convicted to have their convictions reviewed, set aside, and for new trials to be ordered.
In calculating the time, the Respondent also argues that on April 11, 2023, when the reopening application along with the Notice of Intention to Appear were filed with the court administration, it was the first time that the prosecution or the court would have been made aware that the defendant wished to have a trial.
I am not persuaded by the Applicant’s argument regarding appellate delay as the relevant case law, including the SCC’s decision in R. v. Potvin, [1993] 2 SCR 880, which remains the leading authority on appellate delay, provides clear direction on that issue. In that decision, Sopinka, J. found that a person convicted is not a person charged and therefore s.11(b) does not apply to a person who has been convicted.
For the purpose of this application, there is no difference between a person who is party to an appeal or party to a reopening application to have the decision overturned. The Applicant’s reopening was granted which corrected whatever issue led to the defendant being convicted and placed him back before the court with an opportunity to address the allegations, just as it would have following a successful appeal against conviction.
In R. v. Windibank, 2017 ONSC 855, a decision from the SCJ, at paragraph 66, Justice Howard stated the following:
…if an accused were permitted to include the period of appellate delay as part of a claim of unreasonable delay, that may well be used as an inappropriate strategy by some accused persons to commence frivolous appeals merely for the purpose of “running out” the Jordan clock.
- The higher courts have been consistent in their direction regarding how to apply appellate time when calculating delay. The period during which Mr. Agrippa was a person convicted and not a person charged cannot be considered as delay.
Calculation of Time up to the First Trial Date
While the proverbial s.11(b) clock starts ticking from the offence date, there are other factors which must be considered in determining the treatment of time to properly calculate net delay in a matter.
The Applicant does not make an argument with respect to the treatment of time prior to the Notice of Intention being filed. The Respondent argues that this time is to be considered neutral time and relies on the persuasive decision by my brother Justice of the Peace Phillipps in R. v. Arsenault, 2021 ONCJ 714 in which the court ruled that the time between the offence date and the date when the Notice of Intention to Appear is filed is to be considered neutral time.
The reasoning by the Court in Arsenault was that prior to the court receiving notice that a person charged wished to appear in court to contest the charges and have a trial, there would be nothing that the courts or the prosecution could do to advance the case. The defendant who is served with an offence notice at roadside by the officer has the option to pay the ticket or schedule a meeting with a prosecutor to resolve the charge. This differs from matters where the defendant is served with a summons compelling them to attend court on a specific date and time under the Provincial Offences Act, or in criminal matters where an accused person’s appearance is required to attend court once they have been charged with an offence.
The Respondent argues that the entire time between the issuing of the offence notices until the first trial date should be counted as neutral time. However, I am not persuaded and rather, I agree with His Worship’s analysis that the neutral time to be counted is up until the time that the Notice of Intention is filed. I find that the time between January 24, 2023 and April 11, 2023, two and a half months, to be neutral time.
On April 11, 2023 the Applicant was not a person charged as he was still convicted and awaiting review of his reopening application which was granted on April 26, 2023. Therefore, an additional two weeks is counted as neutral time for a total of three months of neutral time to be deducted from the total delay.
Which, if any, of the adjournments are attributable to defence delay?
Another factor which the court must consider is conduct of the defence, specifically whether their actions contributed to the delay. On June 7, 2024, the court’s administration sent out a Notice of Trial informing both parties that the matters had been set for trial which was scheduled to take place on July 23, 2024. The Notices were sent by mail to the defendant and would have been received by June 14, 2024.
On June 21, 2024, Mr. Agrippa’s legal representative sent a disclosure request in writing to the Municipal Prosecutors Office. Initial disclosure, which included the officer’s notes and test times for the speed measuring device, was sent electronically on June 25, 2024.
A follow-up disclosure request was sent to the Respondent’s office on July 3, 2024 requesting test times which had already been provided to the defence and the qualifications of the investigating officer to operate the speed measuring device.
The In Car Camera footage was provided to the defence on July 22, 2024, the day prior to the first trial date in the matter.
Given that the time between the Notice of Trial being sent out to the parties and the actual trial date was just over six weeks apart and considering that it usually takes approximately 6-8 weeks for disclosure to be provided to the defence, I find that the parties acted diligently in both requesting and providing disclosure.
On the first trial date in the matter, July 23, 2024, Mr. Slawson, acting on Mr. Agrippa’s behalf, requested an adjournment to have time to review the video that had been provided the day before and to receive the two items that had been requested on July 3. The matters were adjourned to September 16, 2024 for trial with both parties agreeing to that date.
The time between the first and second trial date is characterized as institutional delay and is not to be deducted as defence delay.
Second Trial Date
On the second trial date, September 16, 2024, Mr. Tatangelo appeared before me on behalf of Mr. Agrippa. Mr. Sawyer appeared for the first time in the matter on behalf of the City of Toronto as the Municipal Prosecutor. At that time, I heard arguments regarding outstanding disclosure issues which we were able to resolve. All disclosure was provided in advance of the second trial date.
It was also Mr. Tatangelo’s intention that day to argue a motion under s.11(b) of the Charter for delay. However, the Application was not properly before the Court. The Notice of Application was served on the Prosecutor’s office on September 10, just six days prior to the trial date.
Section 109(2.2) of the Courts of Justice Act regarding notice reads:
The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise. 1994, c. 12, s. 42 (1).
The Applicant’s intention was to apply to the Court to abridge time for service but neither the Application nor the supporting transcripts were before the Court and were unavailable at that time. As a result, the matters were adjourned to December 10, 2024 for the Charter application and transcripts to be filed in accordance with the rules. I ordered the tier blocked and seized myself for continuity purposes.
The prosecution was ready to proceed to trial on that date and the Respondent argues that the second adjournment was a defence request and therefore the time between September 16, 2024 and December 10, 2024 should be deducted from the total delay as defence delay.
I find that the second adjournment falls at the foot of the Applicant in this matter as they were not ready to proceed and required an adjournment to serve and file their motion materials in accordance with the Courts of Justice Act. A further 2 months and three weeks shall be deducted from the total delay.
The total delay is 22 months and 16 days. After deducting the 5 months and three weeks which account for neutral time and defence delay, the net delay is just below 17 months and falls under the presumptive 18-month ceiling in Jordan.
This Application for a stay of proceedings for unreasonable delay is dismissed and we will now proceed to trial.
Justice of the Peace I. Szenes