COURT FILE NO.: CV-24-0016 DATE: 2024-08-13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

2555569 Ontario Inc., Clear Lake Estates Corp. (Ontario Corp Number 2557925), Steven Brown, Philip Brown, Terrance Bruce Little, FRI Ecological Services Inc., and Rebecca Geauvreau Applicants – and – His Majesty the King in Right of Ontario (Ministry of the Environment, Conversation and Parks and the Ontario Ministry of Northern Development Mines, Natural Resources and Forestry) Respondent

Counsel: Timothy S.B. Danson, Marjan Delavar, for the Applicants R. Coburn, for Clear Lake Estates M. Gardner, for FRI Ecological Services Inc Nicholas Adamson, for the Respondent

HEARD: June 28, 2024

RULING ON APPLICATION FOR EXTRAORDINARY AND/OR CHARTER RELIEF

S.K. Stothart J.

Overview

[1] The applicants seek an order in the nature of mandamus, prohibition and certiorari pursuant to s.140 of the Provincial Offences Act, R.S.O. 1990, c.P.33 (the “POA”) quashing the decision of Regional Senior Justice of the Peace J.G. McMahon dated January 16, 2024, with written reasons provided on March 1, 2024. The applicants submit that the Justice of the Peace failed to exercise his jurisdiction and/or acted an excess of his jurisdiction with respect to their s.11(b) application pursuant to the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (“the Charter”).

[2] In addition, the applicants seek an order pursuant to s. 24(1) of the Charter, quashing the Justice of the Peace’s decision and permanently staying the proceedings. The applicants submit that the violation of their s.11(b) Charter rights in this case is egregious, and the Justice of the Peace’s decision is unreasonable to the point of a “substantial wrong” or “miscarriage of justice” such that the proceedings should be stayed.

Summary of the allegations

[3] The applicants are charged in two informations that they, between January 16, 2018 and March 22, 2018, unlawfully damaged and/or destroyed habitat of a species listed on the Species at Risk in the Ontario List as a threatened species, to wit: Massasauga (Great Lakes-St. Lawrence population) Sistrurus catenatus (Information # 19 072); and that they, between February 7, 2017 and March 22, 2018, unlawfully attempted to damage and/or destroy the same habitat (Information # 22 198) contrary to s. 10(1) (a) of the Endangered Species Act, 2007, S.O. 2007, c.6 as amended (the “ESA”).

[4] It is alleged that the applicants performed work in the habitat of the Massasauga snake that either damaged and/or destroyed their habitat or attempted to damage and/or destroy their habitat. This work included cutting trees, brushing vegetation, moving stumps, aggregates, and skidding logs, in preparation for the installation of a road that would service a planned 28-cottage lakefront subdivision in Seguin Township.

[5] Section 17 of the ESA permits the Minister of Environment Conservation and Parks, or such other member of the Executive Council as may be assigned the administration of the Act under the Executive Council Act, to issue a permit to a person that authorizes them to engage in activity that would otherwise be prohibited by s.10 of the ESA. The Minister may only issue a permit if certain specific requirements are met, as set out in s.17(2).

[6] It is alleged that the applicants did not obtain a permit pursuant to s.17 of the ESA to conduct the work they performed during the alleged time period.

[7] The applicants take the position that they did not damage or destroy (or attempt to damage or destroy) the habitat of the Massasauga snake. The applicants intend to call expert evidence to support their position at trial.

[8] The applicants take the position that because the work they performed did not damage or destroy habitat, they were not required to obtain a permit.

[9] Both Informations are being tried together and trial dates are currently scheduled between September 4, 2024 and October 25, 2024.

Pre-trial applications

[10] As part of the proceedings before the Ontario Court of Justice, the applicants have brought several pre-trial applications. One pre-trial application, seeking disclosure and alleging violations of s.7 and s.11(d) of the Charter, was heard September 26, 2022. Reasons for decision were released on December 21, 2022. I will refer to this as the “disclosure application”.

[11] The disclosure application related to a request by the applicants for materials from the Parry Sound District Office of the Ministry of Natural Resources and Forestry (MNRF) related to other land development projects that involved at risk or endangered species.

[12] In his reasons for decision, the Justice of the Peace summarizes the nature of the application and how the applicants’ request for disclosure evolved over time. Specifically, he noted:

a. The applicants’ disclosure request narrowed during submissions to a request for materials related to four specific projects;

b. The applicants took the position that the disclosure was first party disclosure, however if they were incorrect on that point, asked that their request be treated as a third-party request;

c. The crown took the position that these materials were irrelevant to the current proceedings;

d. The crown took the position that the materials sought were with the MNRF, which was a separate entity than the Ministry of Environment and Conversation and Parks. As such, they were third-party records.

[13] After hearing submissions, the Justice of the Peace found that the records were third-party records and requested that the Crown make inquiries with the MNRF about whether they would provide them without the need to go further with a third-party records application, with notice and attendance by the MNRF. If the matter was to proceed to a third-party hearing, a summons and proper notice was to be provided to the third party. At the end of his decision, the Justice requested that the parties schedule a case conference to discuss a timetable for the completion of the proceedings.

[14] On February 10, 2023, without conceding their relevance, the Crown provided the materials sought relating to the four projects. I will refer to this as the “late disclosure” in my reasons. By using this term, I do not intend to comment on any issues outstanding with respect to its relevance or impact on the applicants’ ability to make full answer and defence.

[15] Another pre-trial application alleging violations of s.7, s. 8, s.11(b) and s.11(d) of the Charter was heard over several days between September 13 and December 13, 2023.

[16] On January 16, 2024, RSJP McMahon dismissed the s.8 and s.11(b) Charter applications for written reasons to follow. He also ruled that the s.7 and s.11(d) application would be decided after trial evidence was presented and considered. I will refer to this last application as the “abuse of process application”.

[17] On March 1, 2024, the Justice of the Peace released his written reasons with respect to the s.11(b) application.

[18] On February 14, 2024, the applicants filed this application seeking review of the Justice’s s.11(b) decision. The applicants seek extraordinary relief by way of certiorari pursuant to s.140 of the POA and/or relief pursuant to s.24(1) of the Charter.

[19] On March 4, 2024, Justice A.D. Kurke granted the respondent’s motion to continue the trial proceedings pending the outcome of this application.

Legal principles to be applied to this application

Extraordinary remedies

[20] Section 140 of the POA provides that a party may apply to the Superior Court of Justice for any relief with respect to matters arising under the POA that they would be entitled to in an application for an order of mandamus, prohibition or certiorari.

[21] Section 141(3) of the POA provides that no application shall be made to quash a conviction, order or ruling from which an appeal is provided by the Act, whether subject to leave or otherwise. Section 141(4) further provides that on an application for relief in the nature of certiorari, the Superior Court of Justice shall not grant relief unless the court finds that a substantial wrong or miscarriage of justice has occurred.

[22] Mandamus, prohibition and certiorari are extraordinary or prerogative remedies that arise from the court’s inherent jurisdiction to superintend the process of courts of limited jurisdiction, ensuring that those courts exercise their jurisdiction and/or do not exceed their jurisdiction. These extraordinary remedies are discretionary and do not issue as of right: York (Regional Municipality) v. McGuigan, 2018 ONCA 1062, at para. 44; R. v. Awashish, 2018 SCC 45, at para. 2.

[23] Certiorari is an extraordinary remedy that is available only in narrow circumstances. It is tightly limited in order to accord with the general prohibition against interlocutory appeals.

[24] The practical reasons for the general prohibition against interlocutory appeals include: (a) the need to maintain the integrity of the trial process; (b) the need to avoid fragmentation or delay in the proceedings; (c) to allow for the development of a full record for appeal; and (d) to ensure the efficacy of the appeal process: York (Regional Municipality) v. McGuigan, at para. 48.

[25] The general prohibition against interlocutory appeals ensures the timely resolution of matters in accordance with the principles set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 by ensuring proceedings are not delayed by fragmented proceedings: R. v. M.N., 2022 ONCA 358, at paras. 17-18, 42; York (Regional Municipality) v. McGuigan, at para. 64.

[26] Certiorari is only available when an alleged error goes to the jurisdiction of the provincial court itself. It is not enough to identify an alleged error in the provincial court’s interlocutory ruling. Where the applicant’s complaint is grounded in the dissatisfaction with the merits of the decision, the remedy lies in an appeal brought after the trial has ended: R. v. M.N., at paras. 20, 25.

[27] In the context of provincial offence proceedings, applications for certiorari are rarely granted. This is because most erroneous pre-trial or in-trial rulings are made within the jurisdiction of the court, and because of the mandatory statutory limitations found in s.141 of the POA: York (Regional Municipality) v. McGuigan, at paras. 50 to 59.

[28] However, there may be circumstances where an excess of jurisdiction makes proceedings so unfair that the interests of justice require the court to intervene and grant prerogative relief. A court may conclude that stopping the proceedings before the trial starts or at an early stage of the trial may be less costly and more efficient than to permit the flawed proceedings to go forward: R. v. 1353837 Ontario Inc., [2005] O.J. No. 656 (Ont.C.A.).

[29] Ultimately, certiorari is a discretionary remedy of last resort. As such, the burden rests on the applicant to establish that the interests of justice necessitate the granting of prerogative or extraordinary relief: R. v. M.N., at para. 41.

Section 24(1) of the Charter

[30] A party may apply to the superior court of justice for a remedy pursuant to s.24(1) of the Charter. The superior court has constant, complete and concurrent jurisdiction for s.24(1) applications: R. v. Mills, at paras. 11 and 98; Rahey v. R., at para. 16.

[31] The burden rests on the applicant to establish that the application is an appropriate one for the superior court’s consideration: Rahey v. R., at para. 16.

[32] As a general rule, a trial court is to be preferred in matters arising under the Charter. As such, superior courts should exercise their discretion and decline jurisdiction where there is a trial court that is available and competent to award just and appropriate relief. Indeed, where a court below has been invited to adjudicate the matter and has done so, the superior court should generally refrain from interfering and should let matters take their course through the normal appeal process: R. v. Mills, at paras. 106 to 110.

[33] A superior court should decline to exercise their discretionary jurisdiction unless it is satisfied that, given the nature of the alleged Charter violation or any other circumstances, it is more suited than the trial court to assess and grant the remedy that is just and appropriate: Rahey v. R., at para. 16.

[34] Where circumstances are such that the interests of justice require immediate intervention by a superior court, jurisdiction can and should be exercised. R. v. 1353837 Ontario Inc., at para. 24.

[35] It is well recognized that in the context of s.11(b) applications, ordinarily the trial judge is best placed to assess the merits of the matter. As stated by Howland C.J.O. in Re Krakowksi and R. (1983), at p. 192, 4 C.C.C.(3d) 188 (Ont.C.A.):

In most instances it is preferable where the charges are to be tried in the provincial court that the provincial court decide whether the accused has been denied the right to a trial within a reasonable time as guaranteed by the Charter. The provincial court is in the position to hear viva voce evidence and is familiar with any problems so far as its case-load is concerned. The Supreme Court, on the other hand, might be faced with the difficulty of trying to deal with the matter on the basis of conflicting affidavits. Furthermore, there would be resulting delay if cross-examination of the deponents was required. It is much more satisfactory for the matter to be dealt with at a supervisory or appellate level on the basis of the entire record in provincial court where all of the relevant issues have been considered in one forum, rather than having been litigated piecemeal.

Analysis

Should this court grant an extraordinary remedy and quash the proceedings

[36] The applicants submit that the Justice of the Peace was required to render a decision on their abuse of process application prior to rendering a decision on their s.11(b) Charter application. The applicants submit that a decision was required on the issue of abuse of process because this impacts how the court should properly allocate any delay associated with the failure of the Crown to provide disclosure. The applicants submit that the failure to render a decision on the abuse of process application prior to the s.11(b) Charter decision amounted to a failure to exercise jurisdiction and/or an excess of jurisdiction. They further submit that the failure to render a decision on this issue amounted to a substantial wrong and/or occasioned a miscarriage of justice. As such, pursuant to s. 140 and 141 of the POA, they are entitled to extraordinary relief.

[37] The respondent submits that this application is an attempt to pursue an interlocutory appeal of a pre-trial decision. The respondent submits that the applicants have not demonstrated jurisdictional error on the part of the Justice of the Peace, as such are not entitled to extraordinary relief.

[38] In the circumstances of this case, I am not satisfied that the Justice of the Peace failed to exercise or exceeded his jurisdiction in the manner in which he approached and addressed the pre-trial s.11(b) Charter application.

[39] As noted above, pursuant to s. 140 of the POA, the applicants must satisfy this court that the Justice of the Peace exceeded his jurisdiction in the manner in which he approached and addressed their s.11(b) Charter application. In addition, the applicants must satisfy this court that this resulted in a substantial wrong or miscarriage of justice such that the court should exercise its discretion and grant the relief sought.

[40] The applicants have not provided any jurisprudence where a superior court has reviewed a trial judge’s s.11(b) Charter decision by way of certiorari. This is not surprising, given that interlocutory proceedings often fragment the proceedings and cause additional delay.

The decision to defer his decision on the abuse of process application

[41] With respect to the Justice of the Peace’s decision to defer his decision on the abuse of process application, this was a decision that fell within his general trial management powers: Toronto (City) v. Riddell, 2019 ONCA 103, at para. 7. It is also in accordance with the jurisprudence as it relates to late disclosure and its impact on the fair trial rights of an accused. A trial judge has the discretion on whether to rule immediately or after hearing some or all of the evidence: R. v. La, at para. 27.

[42] The applicants allege in their abuse of process application that the Crown abused its authority by providing late disclosure in February 2023. The applicants submit that the failure by the Crown to disclose these materials earlier amounted to an abuse of process and warrants a stay of proceedings.

[43] This application will necessarily require the presiding Justice of the Peace to consider the impact of this late disclosure on the applicants’ ability to make full answer and defence at trial. It is reasonable, and not an excess of jurisdiction, for the Justice of the Peace to consider this application after hearing the trial itself.

Disclosure

[44] The issue of disclosure and its impact on delay was clearly raised with the Justice of the Peace as part of the pre-trial s.11(b) Charter application. The position of the applicants on this issue is noted in the His Worship’s reasons at para. 31 as follows: “The Defendants state that the 11(b) application was narrow and focused on the Crown’s failure to disclose and/or inquire with a view obtaining certain ministry records in a timely manner”. The Justice of the Peace went on to summarize the applicants’ position as follows:

The Defendants take the position: that the period of time from the date the disclosure was requested in 2019 to the date it was provided in 2023 is delay attributable to the Crown; that delay is well beyond the 18 month presumptive ceiling; and that the delay represents a violation of s11(b).

[45] After setting out the parties’ positions, the Justice of the Peace goes on in his reasons to detail the history of the applicants’ disclosure request, the Crown’s response, the pre-trial disclosure application, the decision on the pre-trial disclosure application, and ultimately the decision by the Crown to provide some of the materials requested. No issue has been taken with respect to this chronology of events.

[46] After considering the history in the matter, Justice of the Peace concluded that the applicants had not been diligent in pursuing disclosure and as such the entire period between 2019 and 2023 would not be attributed to the Crown. Specifically, the Justice of the Peace found:

a. The applicants could have filed an application for disclosure when the crown made its position known;

b. If such an application for disclosure had been filed, it could have been addressed at the judicial pre-trials and an earlier date could have been identified;

c. The applicants initial request for disclosure was very broad and they did not narrow the scope of their request until the first day of the disclosure application in 2022;

d. The materials sought were third party disclosure. Had the applicants properly identified the materials as third party disclosure the record keeper could have attended and been present for the hearing;

e. It was not reasonable for the applicants to delay setting trial dates and pre-trial applications until the disclosure issue was resolved; and

f. The crown disclosed materials within a month and a half of the December, 2023 decision, without conceding their relevance and dispensing with the need to continue the disclosure motion which would have led to further delay.

[47] In his analysis of the delay, the Justice of the Peace did attribute some delay to the Crown, finding that when the applicants narrowed their request during submissions on the first day of the disclosure application hearing, the Crown should have re-assessed its duty to inquire with the MNRF instead of waiting for the release of his decision.

The alleged excess or decline of jurisdiction

[48] The applicants submit that the Justice of the Peace needed to determine if the late disclosure was necessary for them to make full answer and defence. If it was, the applicants submit that the entire time period between their request in July 2019 and receipt of materials in February 2023, a period of almost four years, should have been attributed to the Crown. The applicants submit that the failure to make this determination led to an excess or decline of jurisdiction on the part of the Justice of the Peace and warrants an extraordinary remedy.

[49] The applicants rely on R. v. L.L., 2023 ONCA 52 and submit that this decision stands for the proposition that any delay by the Crown in providing appropriate disclosure to the defence is to be attributed to the Crown in calculating net delay in the s.11(b) analysis. This argument was also made before the Justice of the Peace.

[50] I find the applicants’ interpretation of L.L. to be overly broad and contrary to the Supreme Court of Canada’s direction in R. v. Cody, 2017 SCC 31. At para. 33 of Cody, the Supreme Court held that in determining net delay, the court is to deduct delay caused by defence action or inaction. In reference to this principle, the court in Cody referred to its prior decision in R. v. McQuaid [1988] 1 S.C.R. 244, where Justice Cory referred to the obligation of the defence to be diligent in pursuing disclosure from the Crown. In McQuaid, Justice Cory stated at para. 37:

In considering the overall fairness of the trial process, defence counsel's diligence in pursuing disclosure from the Crown must be taken into account. A lack of due diligence is a significant factor in determining whether the Crown's non-disclosure affected the fairness of the trial process. In Stinchcombe, supra, at p. 341, defence counsel's duty to be duly diligent was described in this way:

Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. See Caccamo v. The Queen, [1976] 1 S.C.R. 786. Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.

The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure. This was aptly stated by the British Columbia Court of Appeal in R. v. Bramwell (1996), 106 C.C.C. (3d) 365 (B.C. C.A.) (aff'd R. v. Bramwell), at p. 374:

...the disclosure process is one which engages both the Crown and the defence. It is not one in which defence counsel has no role to play except as passive receiver of information. The goal of the disclosure process is to ensure that the accused is not denied a fair trial. To that end, Crown counsel must disclose everything in its possession which is not clearly irrelevant to the defence, but the defence must also play its part by diligently pursuing disclosure from Crown counsel in a timely manner. Further, where, as here, defence counsel makes a tactical decision not to pursue disclosure of certain documents, the court will generally be unsympathetic to a plea that full disclosure of those documents was not made.

[51] The facts in L.L. are important. In that case the defence sought disclosure of four occurrence reports and documents relating to incidents between the accused and the complainant. It took the Crown two months to provide its position that the records were third party disclosure. Shortly after receiving the Crown’s position, the defence brought a successful pre-trial disclosure motion where it was decided that the records sought were important first party essential disclosure. The Crown then produced the records, and the accused made his election. All of this took less than five months. The Court of Appeal upheld the trial judge’s decision to attribute this period of delay to the Crown. There was no issue in that case that the defence diligently pursued disclosure once it became aware of the Crown’s position.

[52] The facts in this case, as found by the Justice of the Peace, are much different. In this case, the Justice of the Peace held that: (a) the materials initially sought by the applicants were very broad; (b) the applicants had not been diligent in pursuing disclosure by way of a timely pre-trial application once the Crown position was known; (c) the materials were third party disclosure and the applicants had not followed the proper procedure to notify and secure the attendance of the record holders; and (d) it was unreasonable for the applicants to delay setting a trial date in this matter pending receipt of the materials sought.

[53] The L.L. decision was provided to the Justice of the Peace as part of the s.11(b) application and the same arguments advance before me, were advanced before the Justice of the Peace. Ultimately the Justice of the Peace found that the circumstances in this case differed from those in L.L.

[54] It is important to note that in this case the Justice of the Peace had heard the applicants’ pre-trial motion related to disclosure which was framed as a s.7 and s.11(d) Charter application prior to the s.11(b) motion. He released his reasons for decision on this issue on December 21, 2022. After finding that the materials (as narrowed during submissions) were third-party records, he held that the Crown had a duty to inquire with the third-party record holders. The Justice of the Peace ruled that the Crown was to advise the defendants, without delay, if the Crown was not requesting the materials or if the third party refused to provide the materials. The Justice of the Peace held that if the applicants wished to move forward with the third-party records application, they were to follow the appropriate procedure. Two months later, without conceding relevance, the Crown provided materials to the applicants. This appears to have ended the dispute over disclosure.

[55] Having heard the disclosure motion, the Justice of the Peace was well aware of the materials sought by the applicants, the Crown’s response, and what steps were taken by the applicants to pursue the disclosure. As such, he was properly placed to assess s.11(b) and how the delay related to disclosure should be attributed.

[56] The Justice of the Peace found that the applicants had not been duly diligent in pursuing disclosure up to the point in time when they narrowed their request during submissions on the disclosure application. At that point, the Justice of the Peace found the Crown had a duty to inquire. As a result, the Justice of the Peace attributed three months of delay to the Crown for not immediately making inquiries and waiting for the release of his decision.

[57] In both Jordan and Cody, the Supreme Court found that both the Crown and the defence have an obligation to move matters forward in a timely manner. As such, the defence is expected to diligently pursue relevant disclosure. This includes first-party and third-party relevant disclosure.

[58] Relevance is subsumed within the diligence analysis. The defence is expected to diligently pursue relevant disclosure. The defence is not entitled to irrelevant materials, particularly those in the hands of third parties.

[59] As such, the Justice of the Peace was not required to decide whether the late disclosure in this case was relevant or impacted the applicants’ ability to make full answer and defence before attributing delay. The Justice of the Peace found that the defence had not been diligent in pursuing this disclosure. Whether it was relevant or not does not impact this analysis.

[60] For these reasons, I conclude that the Justice of the Peace did not fail to exercise his jurisdiction and nor did he exceed his jurisdiction by rendering his decision on the s.11(b) Charter application prior to rendering a decision on the abuse of process application.

Is prerogative relief appropriate in circumstances involving legal error

[61] The applicants rely on R. v. 1353837 Ontario Inc., particularly para. 24, in support of a broader submission that a superior court may intervene and grant prerogative relief where an error in law is established that renders the proceedings unfair.

[62] In 1353837 Ontario Inc., the Court of Appeal held at para. 24 that there may be a rare case where a court is justified in intervening before or during a POA proceeding “where a judge’s erroneous ruling may make the proceedings so unfair that the interests of justice require the court to intervene and grant prerogative relief”.

[63] In my view, this paragraph must be interpreted in light of the subsequent Supreme Court of Canada decision in R. v. Awishwish, and the Ontario Court of Appeal’s further guidance in York (Regional Municipality) v. McGuigan which dealt with the availability of prerogative relief in the context of POA proceedings.

[64] In York (Regional Municipality) v. McGuigan, the Court of Appeal re-affirmed at para. 45 that: “where a party to a proceeding seeks certiorari, certiorari lies only for jurisdictional errors, which include denials of natural justice or procedural fairness”. In my view, this clarifies that a review of “erroneous rulings” within the context of an application for extraordinary relief is confined to circumstances where those rulings amount to a denial of natural justice or procedural fairness.

[65] In this case there was no denial of natural justice or procedural unfairness in the way the s.11(b) pre-trial application was heard or decided. The parties were provided the opportunity to file materials and provide fulsome submissions. There is nothing in the manner in which the application proceeded that raises these issues. As such, I find that the applicants have not established a basis for prerogative relief on this basis.

Should this court grant a Charter remedy pursuant to s.24(1)

[66] The applicants further submit that the delay in this case is so egregious that they require relief from this court. They submit that the Justice of the Peace’s trial decision was substantially wrong and resulted in a miscarriage of justice. They point to the total delay of 67 months in this case, which far exceeds the 18-month presumptive ceiling established in Jordan, as a clear breach of their s.11(b) Charter right to a trial within a reasonable time. They submit that given the errors committed by the Justice of the Peace in his analysis, that this is one of those cases where the court should grant relief under s. 24(1) of the Charter.

[67] The respondent submits that the applicants have not demonstrated that they should receive a remedy pursuant s.24(1) of the Charter from this court. The respondent submits that any errors by the Justice of the Peace are more properly addressed on appeal.

[68] With respect to the s. 11(b) decision, the Justice of the Peace correctly set out the principles in R. v. Jordan and applied them to the circumstances of this case, as he found them to be. Having done so, he was not satisfied that the applicants’ s.11(b) Charter right had been infringed. This was a finding that was open to him based on the evidence. In his decision, the Justice of the Peace found:

a. That the applicants had expressly waived certain portions of the delay (express waiver);

b. That POA courts were closed to in person proceedings between March, 2020 and April, 2022 and that the matter could not have concluded any earlier than May 7, 2022 (the Covid delay);

c. That the applicants had made an over broad request for disclosure and then did not pursue this disclosure in timely fashion by way of motion despite being invited to do so by the crown as early as 2019 (the disclosure delay);

d. That the case was complex due to the number of counsel involved and the need for expert evidence;

e. That the crown had taken many steps to address the complexity and to advance the trial expeditiously; and

f. That the applicants had not made themselves available for earlier trial dates.

[69] The applicants submit that the Justice of the Peace erred in the manner in which he assessed complexity and further erred in concluding that the proceedings were complex. The applicants also submit that the Justice of the Peace erred in considering COVID delay as an exceptional circumstance in this case.

[70] The applicants submit that there is a pressing need to have this matter addressed by way of Charter remedy in the Superior Court because to continue the trial perpetuates the prejudice occasioned by the delay.

[71] In my view, this is an argument that could be advanced by any party who has been unsuccessful in obtaining a stay of proceedings before a trial judge. I find that there is nothing unique about this prosecution that sets it apart from any other trial proceeding where s.11(b) has been raised and disposed of by the trial judge. There is no issue of denial of natural justice to the parties in this case. The Justice of the Peace heard fulsome submissions and rendered his decision. As the trial justice, he was best placed to assess the issues that arose in this case related to delay.

[72] The Ontario Court of Appeal held in R. v. M.N., at para. 25, that where a party challenges the merits of a decision, the remedy lies not with what effectively amounts to an interlocutory appeal, but with an appeal brought after the trial has ended.

[73] In this case, the Justice of the Peace was invited to adjudicate the s.11(b) Charter application and render a decision. Having done so, I find that it is not appropriate nor is it necessary for this court to re-adjudicate the issue. The matter should take its course through the normal appeal process.

[74] As such, I decline my jurisdiction to consider the issue of Charter relief.

Conclusion

[75] For the reasons set out above, and in the circumstances of this case, I am not satisfied that I should exercise my discretion and grant extraordinary relief. Further I am not satisfied that this case presents circumstances that require interim Charter relief.

[76] The application is dismissed.

The Honourable Madam Justice S.K. Stothart Released: August 14, 2024