R. v. El-Nasrallah, 2018 ONCJ 161

CITATION: R. v. El-Nasrallah, 2018 ONCJ 161 Toronto DATE: 2018-03-08 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — NINA EL-NASRALLAH Appellant Before Justice Mara Greene Reasons for Judgment released on March 8, 2018 A. Queijo………………………………………………………………….for the Respondent C. Hurley………………………………………………………….............. for the Appellant Greene, J: [1] On July 22, 2016, the appellant was charged with driving a motor vehicle while using a hand held device contrary to section28.1(1) of the Highway Traffic Act. Her trial was held on June 15, 2017. At trial, the Appellant argued that her 11(

b) rights wereviolated because it took 10 months and 24 days for her matter to proceed to trial. The trial judge dismissed this application. The matterproceeded to trial and the Appellant was found guilty. The only issue on appeal is whether the trial judge erred in dismissing the 11(b)application. Brief

Summary of the facts [2] On July 22, 2016 Ms. El-Nasrallah was charged with driving while using a hand held device. On July 29, 2016, Ms. El-Nasrallahfiled her notice to have a trial with the clerk of the court. On October 26, 2016, the notice for trial was issued and a trial date of June 15,2017 was set. The trial proceeded and concluded on June 15, 2017 some 10 months and 24 days after Ms. El-Nasrallah was charged. The Issue [3] The Appellant argued in her factum that the trial judge erred in finding that there was no 11(

b) violation. The argument set out inthe factum filed with the court references only the frame work from R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1(S.C.C.). In oral argument, the representative for Ms. El-Nasrallah argued that the framework from R. v. Jordan ought not be employedfor provincial proceedings under

Part I because the trial process for these types of quasi criminal proceedings is very different fromcriminal cases. The representative for Ms. El-Nasrallah further argued that any delay beyond 10 months for

Part I offences should befound to be constitutionally intolerable. [4] The respondent urged the court to follow the framework from R. v. Jordan and given that the delay is well below 18 months, therespondent argued that the trial judge’s finding should be upheld. Analysis [5] In July 2016, around the same time that Ms. El-Nasrallah was charged, the Supreme Court of Canada in R. v. Jordan, 2016 SCC27 , [2016] 1 S.C.R. 631, provided a new framework for trial judges to follow when determining whether the delay in a matterproceeding to trial violated s. 11(

b) of the Charter. The heart of the new frame work is the presumptive ceiling of 18 months for mattersproceeding in the Ontario Court of Justice. Delay longer than 18 months is presumptively unreasonable. This 18 month ceiling takesinto account the time from when information is laid until the end of the trial minus defence delay. Defence delay can come in twoforms. Firstly, through a voluntary waiver and secondly when the delay is caused solely by the actions of the defendant. [6] The Supreme Court of Canada in R. v.

Jordan was silent on whether or not the 18 month ceiling should apply to provincialoffences matters. The Appellant argues that is should not apply. Respectfully, I disagree, in my view there is no legal basis to concludethat the Supreme Court of Canada in R. v. Jordan was putting forward a new framework that would exclude provincial offences. In fact,there is a compelling argument that the Supreme Court of Canada intended the new framework to apply to all cases in the Ontario Court

of Justice. In Jordan, the Supreme Court of Canada held that the new framework was necessary to address the culture of complacency inthe Canadian Criminal Justice System and to address the “doctrinal shortcomings” of the Morin framework. Moldaver J. wrote atparagraph 38, In sum, from a doctrinal perspective, the s.11(

b) framework is too unpredictable, too confusing, and too complex. It has itself become aburden on already over-burdened trial courts. [7] In light of this language, it is unreasonable to conclude that the Morin framework should still apply to

Part I provincialprosecutions. While it is my view that the Jordon framework of a presumptive ceiling must apply to

Part I offences, it does notnecessarily follow that the presumptive ceiling for

Part I offences should be the same as the ceiling for criminal matters. As McInnis J.noted in York (Regional Municipality) v. Tomovski, 2017 ONCJ 785 , [2017] O.J. No. 6073 (O.C.J.), while it is clear that thepresumptive ceiling framework applies to

Part I proceedings, it is less clear that the number chosen for the presumptive ceiling is equallyapplicable (York v. Tomovski, supra, at paragraph 137). [8] There is a solid legal and principled basis to fix a lower presumptive ceiling for provincial offences

Part I proceedings. AsLibman J. noted in R. v. Andrade, 2011 ONCJ 470, provincial matters under

Part I are less complex than criminal cases, do not have asignificant intake period and should take place expeditiously. Libman J. stated at paragraph 64: According to Justice Doherty, the Morin

summary conviction guide​lines govern, though not strictly, thereby mandating a period of 8 to10 months for provincial offences trials to be heard in the Ontario Court of Justice. However, unlike trial matters for

summaryconviction criminal offences, provincial offences

Part 1 proceedings require no court appearance before the matter is set down for trial,or other routine features involved in scheduling criminal trials, such as retaining counsel or applying for legal aid, preparing andproviding disclosure, attending a pre-trial meeting with the Crown or judge, or consulting with the trial coordinator to arrange a trialdate. In essence, once the defendant is given his/her traffic ticket, there is little further for either the defendant or police officer to do,other than file their respective paper work and wait for a trial date to be scheduled.

Neither is there anything that must be done by theprosecutor in order for the process to proceed. As a result, the lengthiest portion of the time it takes for a

Part 1 provincial offencesproceeding to be heard will ordinarily consist of systemic or institutional delay. [9] In light of the above findings of fact, Libman J. held that the intake time for provincial proceedings under

Part I should be 45 to60 days and that the subsequent tolerable institutional delay should be 8-10 months. [10] McInnis J., focusing on the same factors identified in Andrade, held that under the Jordan framework, the presumptive ceilingshould be less than the ceiling of 18 months permitted for criminal cases held in the Ontario Court of Justice. McInnis J. stated atparagraphs 144-145, The “realities we currently face” in

Part I process are different realities than the ones reflected in the ceilings set in Jordan. Had theSupreme Court used data derived exclusively from

Part I and its analogues in the other provinces, its methodology would have generateda lower number of months than 18. Accordingly, I find the lower overall inherent time requirements of

Part I proceedings furnishes avalid legal basis to distinguish Jordan to the extent of allowing for a lower presumptive ceiling. A lower ceiling is required to ensurefidelity to the broader principles announced in Jordan in this very different procedural context” [11] I agree with my colleagues that given the realities of provincial offences

Part I proceedings, the fact that there are no significantintake proceedings and the matters tend to be relatively simple and not time consuming, the presumptive ceiling for these types ofoffences ought to be lower than the ceiling for criminal cases. [12] The Appellant argued that the upper ceiling should be 10 months. He argued that 10 months is the logical number based onLibman J.’s reasoning in Andrade. Respectfully, I disagree. In Andrade, Libman J. did not find that in all cases the ceiling should be 10months.

Instead, he identified a set of guidelines for other courts to consider in assessing whether or not there has been an 11(b)violation. Moreover, in Andrade, while the overall delay for

Part I matters was said to be less than for criminal matters, largely becauseof the absence of intake activity, the reduction was only a few months less than the acceptable delay in simple criminal trials as opposedthe significant reduction being proposed by the Appellant. [13] In York v. Tomovski, McInnis J. held that the presumptive ceiling for

Part I offences should be in the 13-15 month range. Inreaching this conclusion, McInnis J. relied upon the evidence presented at that hearing which included statistical data about the volumeof provincial offences in the York Region, evidence around the process of setting trial dates in York Region for

Part I offences, andexplanations for the delay in setting trial dates. He also considered the need for speedy justice in

Part I proceedings and the reducedintake time required for these matters. [14] In the case at bar, I do not have the same wealth of evidence that McInnis J. had in the Tomovski case. It is therefore difficult toassign a number to the upper ceiling. While I am unable to identify a clear number for the upper ceiling for

Part I proceedings, in myview, there is no basis to reduce the ceiling to 10 months. Reducing the upper ceiling by eight months places too much weight on theintake period and not enough weight on the administrative realities of setting trial dates. It is difficult to imagine an upper ceiling forPart I offences that is less than twelve months given the realities of busy courts Since the delay in the case at bar was well under 12months, I am satisfied that the trial judge did not err in finding that there was no 11(

b) violation. [15] Since no other grounds of appeal were raised and no other legal errors were identified by the Appellant, the appeal is dismissed. March 8, 2018 Justice M. Greene