R. v. Eschbach, 2014 ONCJ 598

PON 1671738Z Citation: R. v. Eschbach, 2014 ONCJ 598 ONTARIO COURT OF JUSTICE Provincial Offences Court-London R. v. ESCHBACH Ms. L. Lake for the Prosecution Ms. J. Burness for the Defendant Laurie Eschbach is charged with speeding 104 km/h in a posted 90 kph zone contrary to s.128 of the Highway Traffic Act. The incidentis alleged to have occurred on March 7, 2013 at Shaw Road in Middlesex County. On March 21, 2014, being the administrativelyscheduled trial date, Ms.

Burness, agent for the defendant, brought an application under s. 24(1) of the Canadian Charter of Rights andFreedoms for a stay of the proceedings due to a violation of the defendant’s right to be tried within a reasonable time contrary to 11(

b) ofthe Charter. Proper notice was given to the Attorneys General of Canada and Ontario as well as the prosecutor’s office of the City ofLondon. In support of the application, the defendant relies upon an affidavit of Ms. Bulmer, a clerk for Ms. Burness, which sets out thevarious steps in the proceedings, as well as the defendant’s own affidavit which sets out the prejudice she has experienced. The defendanthas also provided a Book of Authorities. At the commencement of the argument of the application, Ms.

Lake, on behalf of theprosecution, advised that the prosecution was not taking any position with respect to the application. Consequently, there is no materialfrom the prosecution. For the following reasons, the application is granted. GENERAL PRINCIPLES The onus is on the defendant to prove that there was an unreasonable delay on a balance of probabilities. A defendant does not have toassert that he wants to be tried within a reasonable time to invoke the right.

There is no mathematical formula and there must be aweighing of the competing interests, namely society’s interest in seeing someone tried on the merits and individual’s interest in promptadjudication. The total delay involved must be significant or exceptional to raise the issue of unreasonableness. The factors to be takeninto consideration are set out in the Supreme Court of Canada decision of R. v.

Morin (SCC), [1992] 1 S.C.R. 771 asfollows: 1. the length of the delay 2. waiver of time periods 3. the reasons for the delay, including a. inherent time requirements of the case b. actions of the accused c. actions of the Crown d. limits on institutional resources; and e. other reasons for the delay, and 4. prejudice to the accused. When examining the reasons for the delay, it is not to attribute blame to the parties in terms of bona fides of the motives, but to examinethe voluntary actions taken by the parties. HISTORY OF PROCEEDINGS This is a

Part 1 proceeding. The defendant was served with the Offence Notice on the same day of the offence namely March 7, 2013. On March 8th, she retained Ms. Burness. The Certificate of Offence was filed on March 9th. The Notice of Intention to Appear was filed with the London Provincial Offences court in person on March 19th. Ms. Burness’ office inquired with the court office on August 16th about a possible trial date but was advised that no date had been set. The Notice of Trial is dated October 25, 2013 for a trial ofMarch 21, 2014. It was set by the court administration without any input from the defendant.

A request for disclosure was made on October 30th upon receipt of the Notice of Trial. A single page of disclosure was received by Ms. Burness on February 26, 2014.

POSITION OF THE PARTIES AND THE LAW Ms. Burness on behalf of the defendant argues that the entire delay of 12 months and 14 days (namely from the date of the offenceto the date of trial) is due to administrative delay, and that this delay must be attributed to the prosecution. She also argues that this is nota complicated matter and that it should not take this long to come to trial. She further argues that the defendant acted reasonably withinthe 15 days set out in the POA to file the Notice of Intention to Appear requesting a trial and that the defendant had no input into the datescheduled for trial.

She relies primarily upon the decision of Justice Libman in Toronto (City) v. Andrade/Toronto (City) v. Hariraj 2011ONCJ 470 , [2011] O.J. No. 4245 and argues that the length of time it should take to

schedule a trial in this jurisdiction shouldbe no more than the 30-45 days as in Andrade. During her argument, a colleague also referred Ms. Burness to the decision of R. v. Pham,a decision of Justice Pockele dated May 27, 2007. I have reviewed the Pham decision [2007] OJ No 3860 and note that Justice Pockelewas dealing with an appeal of a decision dismissing the appellant’s charter application by the trial Justice of the Peace.

In the Pham case,the Notice of Trial was dated 30 days after the date of the offence, and 15 days after the defendant filed the Certificate of Offence.Justice Pockele commented that this neutral intake period was 4-6 weeks, however, later in his reasons he said that the inherent time was30 days in the circumstances. In light of all of this, Ms. Burness finally argues that the intake period to

schedule a trial is 30 days andthus there is still a delay of 11 ½ months that is unreasonable in the circumstances. She further argues that there has been actual prejudiceto the defendant as set out in her affidavit. I will return to the issue of prejudice later in these reasons. As already indicated, the prosecution takes no position with respect to the application.

In Andrade, Justice Libman was providedwith evidence called by the prosecution with respect to the intake period in terms of the time it takes to process and set trial dates in theToronto region in addition to the evidence as to the systemic or institutional delay in terms of scheduling trials. No such evidence wasprovided in this case. It should also be noted that on September 10, 2013, the City of Toronto abandoned its appeal to the Ontario Courtof Appeal of Justice Libman’s decision in Andrade due to “pending changes in practice”, which likely has to do with the way trialmatters are scheduled.

I find that a reasonable intake period for a

Part 1 proceeding in London is 30 to 45 days from the date of the offence and is neutral.There is no evidence provided by the prosecution to support a longer intake period. I am persuaded by the reasons of Justice Libman inAndrade particularly at paragraphs 55 and following and adopt them: [55] That said, I see no reason why a reasonable intake period for a traffic ticket, as a general rule, should exceed a period of between 30-45 days.

An intake period in the lesser range of 30 days will be appropriate where the defendant acts promptly within the 15 day windowto respond to his/her ticket and files the notice of intention to appear in court for trial, and the officer, in turn, files the certificate ofoffence or offence notice expeditiously in the court office, thereby allowing court administration to have all the necessary documentationwithin days of the issuance of the ticket.

An intake period in the outer range of 45 days will be appropriate where the defendant does notact until the latter part of the 15 day window to respond to his/her ticket and file the notice of intention to appear in court for trial, or theofficer does not file with dispatch the certificate of offence or offence notice in the court office, thereby causing court administration towait a lengthier period before having all the necessary documentation to

schedule a trial date. [57] An intake period of this duration promotes the scheduling of trials in a manner that will enhance the likelihood of the overall periodof delay to the actual trial date being a reasonable one, rather than one that is not.

It also provides certainty as to the scope of reasonableintake time, and eliminates the arbitrariness of simply calculating the period of time from the filing of the notice of intention to appearuntil the date the trial notice is issued, a practice that produces a time period for intake that is uncertain and unpredictable, and may infact range, as the cases demonstrate, from one day to more than 10 months. [58] Moreover, an intake period of 30 to 45 days for the most minor of provincial offences, that is, those prosecuted under

Part I as ticketinfractions, is also consistent, in my opinion, with the intent of the legislation, a very important aspect of which is ready and efficientaccess to the administration of justice. I am thus unable, with respect, to accept the appellant’s position which places a premium onbureaucratic procedures, with no regard for either the defendant’s own interests and input as to trial scheduling, or the abbreviated timeperiods mandated in the legislation.

While the City may consider that if a defendant finds the date or time of day given for trial to beinconvenient, an adjournment request can be arranged, this is not the approach adopted for police witnesses, and I do not thereforeconsider this to be an even-handed way of scheduling trials, particularly for the growing number of unrepresented defendants who maylack the means or understanding of how to change their assigned trial date, and are given no instructions in the notice of trial as to how todo so.

Stated shortly, a delay caused by an unfair practice or procedure cannot be reasonable within the meaning of s.11(

b) of theCharter. [60] An intake period that incorporates these features would provide a means of scheduling trials in a way that takes all of the key partieslegitimate interests into account, including police witnesses and court administration, while being consistent with the purpose of theProvincial Offences Act, which in the view of the Ontario Law Commission, should be to “advance a procedure for the trial or resolutionof provincial offence cases that is: (

a) proportionate to the complexity and seriousness of the provincial offence; (

b) efficient; (

c) fair; (d)accessible; (

e) responsive to the offence-creating statute’s objective; and (

f) reflective of the distinction between provincial offences andcriminal offences.”[8] It would also doubtlessly promote the attendance of accused persons on dates that are scheduled for trials, giventheir ability to have a say in the trial scheduling process. A 30-45 day neutral intake period takes into consideration all of the legitimate interests of police witnesses, court administration, whilealso recognizing the strict time limits imposed upon defendants (15 days) to file the Certificate of Offence or Notice of Intention toAppear, and is also consistent with the purpose of the Provincial Offences Act.

The procedures for early resolutions, requests to meetwith prosecutors, etc. as found in the s. 5.1 amendments to the Provincial Offences Act have not been adopted by the City of London. APPLICATION OF LAW TO THE CASE Length of the delay

The date of the allegation is March 7, 2013. The administratively set date of trial was March 21, 2014 for a total of 12 months and 14 days. This delay is significant such that it merits an examination of the reasons for the delay. Waiver of time periods There are no waivers of delay. Reasons for the delay i. Inherent time requirements With respect to the intake period, I find that the defendant was served with the Offence Notice on the date of the offence, namely March 7, 2013 and that the Certificate of Offence was filed 2 days later which is well within the 7 days provided in s.4.

I further find that the Notice of Intention to Appear was filed on behalf of the defendant on March 19, 2013 which is within the 15 days set out in s. 9. This was a minor speeding allegation with one police witness. A reasonable neutral intake period of 30-45 days would mean that the Notice of Trial should have been sent out sometime between April 7 th and 22 nd . It was not sent out until October 25, 2013. I find that the additional six months is excessive and unreasonable. There is no explanation as to why it took this long for a Notice of Trial to be sent. ii.

Actions of the accused and Crown There are no delays attributed to the actions of either the prosecution or the defendant. iii. Limits on Institutional Resources The trial was scheduled for March 21, 2014, almost 5 months from when the Notice of Trial was sent. The defendant did not have any input into this date. All of the 5 months is due to systemic reasons in this

Part 1 proceeding. In Morin , the “guideline” of 8-10 months for institutional delay as suggested by Askov in provincial court was not to be seen as a limitation period and was to be considered in light of many other factors, including the issue of prejudice. In total, I find that there is 11 months of delay that is attributable to systemic reasons- an unreasonable intake period of 6 months as well as the 5 months from the Notice of Trial to the trial date.

Even though a delay of 11 months due to institutional reasons is beyond the guideline, it is still that- a guideline and the competing interests must be examined. iv. Prejudice The defendant filed an affidavit. She is 71 years old. Her affidavit speaks to some additional stress, but that would be facing anyone charged with an offence. However, it also her belief that she has had to forgo purchasing a vehicle due to the concerns and reluctance to insure a new vehicle as expressed by her insurance company while the charge is still outstanding.

In addition, she is having memory problems to the extent that she is having trouble instructing her agent. All of this is unchallenged. On a balance of probabilities, I find that there has been actual prejudice to the defendant due to the delay in terms of these latter two items. COMPETING INTERESTS As noted in paragraphs 26-29 of Morin, there is a dual purpose in s.11(b): the primary purpose being the protection of the individual rights of an accused person in terms of the right to security of the person, the right to liberty and the right to a fair trial.

There is also a secondary societal interest that parallels that of an accused person in terms of seeing those accused of crimes are treated fairly by having prompt trials within a reasonable time-prompt trials have intrinsic value and enhance the confidence of the public. As noted in Morin , there are competing interests in the s. 11(

b) analysis. As Justice McLachlin stated in paragraph 87: The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused’s interest in prompt adjudication. In the final analysis, the judge, before staying the charges, must be satisfied that the interests of the accused and society in a prompt trial outweigh the interests of society in bringing the accused to trial.

In this case, the competing interests of society and the defendant in having her minor traffic offence heard promptly is balanced against society’s interest in the defendant brought to trial for minor traffic offence. The prejudice experienced by the defendant is demonstrated. The short timelines that govern Provincial Offences Act suggest that speedy justice should be the goal. The delay of 6 months to set the trial date by the courts administration is excessive and is not tolerable- it is also unexplained.

When this is added to the delay of 5 months from the Notice of Trial to the actual trial date, the total delay of 11 months is unreasonable. Even if no prejudice had been demonstrated, the delay of 11 months for a minor speeding ticket is unreasonable. It is most unsatisfactory that it took 6 months to

schedule a trial for a minor speeding offence, and then another 5 months to the actual trial date. Overall, I am satisfied that the interests of the defendant and society in having a prompt trial outweigh the societal interest in bringing the defendant to trial in all of these circumstances. CONCLUSION The defendant’s right to a prompt trial has been violated. A stay of the proceedings is the only remedy for a violation of s. 11(

b) and thus the charge is therefore stayed. Dated at London, this 28 th day of April, 2014.

__________________________________ H. W. Anna M. Hampson Justice of the Peace These reasons form part of the record and are to be attached to the Certificate of Offence.