R. v. Sky, 2012 ONCJ 875

Citation: R. v. Sky , 2012 ONCJ 875 Ontario Court of Justice Toronto Region Case Name: R. v. Sky IN THE MATTER OF an application for a stay of proceedings for an infringement of s. 11(

b) of the Charter of Rights and Freedoms in respect to a charge laid under the Highway Traffic Act, R.S.O. 1990, c. H.8 Between Her Majesty the Queen, Prosecutor, and Rena Sky , Defendant Reasons for Judgment Before: His Worship Mohammed Brihmi Appearances: Ms. I. Benjamin, Prosecutor for the City of Toronto Mr. H. Stone, Counsel for the Defendant Charge before the court: S. 144(18) of the H.T.A. – “Red Light - Fail to Stop” Hearing Dates for S. 11 (

b) Motion: October 9 and 22, 2012 Judgment rendered: November 9, 2012

M. BRIHMI J.P. (orally):-- Introduction: [ 1 ] The matter before the court is a continuation of an 11 (

b) motion that was on the 9 a.m. docket of E court on October 22, 2012.On that day, the court heard the final submissions and it is before the court today for judgment. [ 2 ] Ms. Rena Sky is charged with Red Light-Fail to Stop that took place on November 2, 2010 contrary to section 144 (18) of the Highway Traffic Act (H.T.A). On the same day, she was served with an Offence Notice under

Part I of the Provincial Offences Act of Ontario (P.O.A). [ 3 ] Ms. Sky’s counsel has brought before the court an application to stay the proceedings pursuant to s. 24(1) of the Canadian Charter of Rights on the basis that her rights to be tried and have her matter dealt with within a reasonable period of time guaranteed under

Section 11 (

b) of the Charter have been infringed. It is settled law that s. 11 (

b) rights are applicable to Provincial Offences. Chronology of Events: [ 4 ] The following is a chronology of this case, based on key documents and transcripts of these proceedings: [ 5 ] On November 2, 2010, Ms. Sky was charged with the Offence of Red Light-Fail to Stop and was served with an Offence Notice. [ 6 ] Ms. Sky requested a trial for the charge she is facing on November 9, 2010; seven days later.

She had 15 days from the serving of the Offence Notice to exercise her options. [ 7 ] Four months less a day later, a Notice of Trial was issued on March 1, 2011 for a trial date that was scheduled for August 15, 2011. [ 8 ] Because she was sick with a bad flu, Ms. Sky didn’t attend her trial on August 15, 2011 and didn’t send anyone on her behalf.

Accordingly, she was convicted in absentia. [ 9 ] Three days later, on August 18, 2011, she attended before a Justice of the peace to reopen her conviction and the Justice struck out her conviction. [ 10 ] The following day, on August 19, 2011, a Second Notice of trial was handed to her and to the prosecutor for a trial date on February 2, 2012. [ 11 ] On February 2, 2012, Ms. Sky attended her trial and obtained an adjournment to receive her disclosure. She filed a disclosure request form on February 2, 2012 and the disclosure was subsequently provided to her.

On the same day, a third trial date was given to her for May 31, 2012. [ 12 ] On May 31, 2012 at 4:35 p.m. her matter wasn’t reached and at the court’s direction, her matter was adjourned to September 14, 2012. [ 13 ] On September 14, 2012, Ms. Sky attended the court with her counsel to make an 11 (

b) Charter motion. Through no fault of Ms. Sky or her counsel, at the direction of the court, her matter was put over to October 9, again marked for trial. [ 14 ] The court started hearing submissions from Ms. Sky’s counsel and Mme Prosecutor On October 9, 2012 regarding the s. 11 (

b) motion. At 5:37 p.m., the court adjourned the matter to October 22, 2012 to finish the remaining submissions and here we are today, November 9 th , to deliver my decision. [ 15 ] It is worth noting that Ms. Sky hired her counsel after May 31, 2012 and she attended the court before as an unrepresented defendant. THE RELEVANT JURISPRUDENCE:

[16] The court carefully reviewed the relevant case law, as follows: a. The 1992, Supreme Court of Canada case, R. v. Morin, (SCC), [1992] S.C.J. No. 25; [1992] 1 S.C.R. 771 b. The 1993, Supreme Court of Canada case, R. v. Potvin, (SCC), [1993] S.C.J. No. 63; [1993] 2 S.C.R. 880 c. The 2011, Ontario Superior Court case, R. v. Bamber, [2011] O.N.S.C. No. 4067 d. The 2009, Ontario Court of Appeal case, R. v. A.J.W., [2009] O.N.C.A. No. 661 e. The 2011, Ontario Superior Court case, R. v. Lahiry, [2011] O.N.S.C. No. 6780 f. The 2012, Supreme Court of British Columbia case, R. v. Inland Packers Ltd., [2012] B.C.S.C.

No. 1439 g. The 2009, Ontario Court of Justice case, R. v. Taylor, [2009] O.N.C.J. No. 60 h. The 2011, Ontario Court of Justice case, R. Ex. Rel. City of Toronto v. Andrade, [2011] O.N.C.J. No. 470 i. The 1996, Ontario Court of Justice (General Division) case, R. v. Konnafis, [1996] O.J. No. 3961 j. The 2006, Supreme Court of British Columbia case, R. v. Robertson, [2006] B.C.S.C. No. 120 k. The 2004, Ontario Court of Justice case, R. v. Spencer, [2004] O.J. No. 5863 l. The 2008, Ontario Court of Justice case, R. v. Owens, [2008] O.J. No. 625 m. The 2010, Ontario Court of Justice case, R. v.

De Paola, [2010] O.N.C.J. No. 260 n. The 2012, Ontario Court of Appeal case, R. v. Tran, [2012] O.N.C.A. No. 18 o. The 2002, Ontario Court of Justice case, R. v. Laflamme, [2002] O.J. No. 5584 p. The 2004, Ontario Court of Appeal case, R. v. Omarzadeh, [2004] O.N.C.A. No. 2212 q. The 2004, Ontario Superior Court case, R. v. Tsui, [2004] O.N.S.C. No. 5293 r. The 2008, Ontario Court of Justice case, R. v. Piskun, [2008] O.J. No. 3705 s. The 2010, Ontario Court of Justice case, R. v. Rijal, [2010] O.J. No. 329 Issues: [17] The court identified the following issues to be relevant to this motion: 1.

How to attribute the delay time between the offence date on November 2, 2010 and Ms. Sky’s conviction on August 15, 2011? 2. How to attribute the time between the reopening on August 18, 2011 to today date? 3. Where to start the delay time in this matter? Should it start from the offence date until the end of the trial or should it start from thereopening of this matter? 4. Has Ms. Rena Sky's right to be tried within a reasonable time been infringed? Analysis: [18] I will analyse the process of the reopening and how it works according to

Section 11 of the POA. Then, I will review the appealprocess in the criminal courts and if there are similarities to help reconcile both of them.

[ 19 ] I concede, however, that I have faced the scarcity of references on which to rely on this issue. It is worth noting that Justice Libman in his overview of s. 11(

b) of the Charter of Rights in R. v. Andrade touches on the lack of jurisprudence in regard to its application to regulatory or public welfare offences in para 17: ‟The approach to interpreting s. 11 (

b) of the Charter of Rights in relation to criminal offences has been the subject of much jurisprudence, and is well known. What is less clear, though, is how that analysis should apply to regulatory or public welfare offences, including those that are prosecuted as provincial offences under

part 1 (ticket) proceedingsˮ. [ 20 ] At the time of reopening of Ms. Sky’s matter, the procedures that existed in 2011 regarding

section 11 of the POA provide the following: Section. 11 Reopening:

(1) If a defendant who has been convicted without a hearing attends at the court office during regular office hours within 15 days of becoming aware of the conviction and appears before a justice requesting that the conviction be struck out, the justice shall strike out the conviction if he or she is satisfied by affidavit of the defendant that, through no fault of the defendant, the defendant was unable to appear for a hearing or a notice or document relating to the offence was not delivered.

(2) If the justice strikes out the conviction, he or she shall give the defendant and the prosecutor a notice of a trial or precede under

section 7to a plea of guilty with submission. [ 21 ] For criminal courts, the process for an appeal is different from a reopening in the Provincial Offences Act . In fact, there is no reopening in Criminal offences. However, in the criminal process, there is a stay of a charge, or a verdict of guilt (conviction) or an acquittal, or a sentence, etc. These situations are open to an appeal and to the application of 11 (

b) Charter Motion. [ 22 ] As I conceded the lack of resources to rely on, I also concede that I couldn’t find any case law that has dealt with the process of reopening as defined in s. 11 of the POA and used it as a parallel to the appeal matters in criminal courts. However, I am not troubled by these inconsistencies because there is one example where I notice some resemblance. [ 23 ] In fact, the reopening of a matter in POA derives from the conviction of a defendant being struck out and the justice could order, among others, a new trial.

This situation is similar to criminal cases where there is a conviction against a defendant who decides to appeal it. Then, the court sets aside the conviction and orders a new trial if it finds that the trial was not fairly or properly conducted. [ 24 ] In the matter at bar, after the conviction of Ms. Sky in abstentia on August 15, 2011, she attended before a Justice of the peace to have her conviction struck out on August 18, 2011.

The Justice made a judicial decision where he or she considered that the defendant was ill, she had a bad flu and of no fault to her, the justice struck out her conviction and ordered a new trial. When Ms. Sky’s conviction was struck out, her matter was reopened and a new trial was given to her and to the prosecutor on August 19, 2011. I look at the actions of Ms. Sky as an appeal to her conviction. It was to the Justice of the peace to accept or to refuse to strike out her conviction.

In this matter, the Justice consented and she was given a new trial. [ 25 ] Therefore, the general principles applicable under s. 11 (

b) of the Charter are applicable to POA offences. In the same time, I infer they could be applicable to a reopening. As in the Supreme Court decision R. v. Morin case that involved a criminal offence that was adapted to different realities in its application to POA offences. [ 26 ] The Prosecution argued that the court should exclude the period from the offence date to the first trial date. However Ms Sky’s counsel argued that the court should include the period from the offence date until the first trial date as well as from the reopening until today.

Both parties made oral arguments. [ 27 ] In this case, the length of delay is in itself and in its totality of 24 months and one week, it is prima face excessive. The period from the charge date of November 2, 2010 to the first trial date on August 15, 2011 is reasonable. To the best of my knowledge, I am not aware of any case law that has dealt specifically with this issue involving a reopening. In the same time, when I requested, I was not provided with any case law either from Ms. Sky’s Counsel or the Prosecutor. [ 28 ] However, Ms.

Sky’s counsel provided the court with several court decisions which have dealt with the issue of s. 11(

b) application and appeal in the criminal court. In addition, he provided the court with one caselaw that involved an 11 (

b) application after

an appeal in a

Part III matter of the POA . These caselaw are R. v. Konnafis of 1996, R. v. Robertson 2006, R. v. Spencer 2004 and R. v. Owens, 2008. Even though, they have nothing directly on point, however, I find the last two court decisions persuasive and give me an analysis and principles to apply; which can guide me in this case at bar. [ 29 ] The Supreme Court of Canada in R. v. Potvin, 1993, addressed the situation of where to rewind the constitutional clock. Mr. Justice Sopinka for the majority, at paragraph 66, quotes from a paper by Justice Doherty, now a justice of the Court of Appeal for Ontario in "More Flesh on the Bones: The Continued Judicial

Interpretation of s. 11(

b) of the Canadian Charter of Rights and Freedoms " (1984 at p. 9: ‟

Section 11(

b) does not appear to operate at the appellate stage.

Section 11(

b) guarantees a trial within a reasonable time, not a final determination of the matter at an appellate level within that time.

If, however, a new trial is ordered on appeal, or some other order is made directing the continuation of the trial proceedings, the constitutional clock should be rewound at the time of the order by the appellate courtˮ. [ 30 ] However, it is worth noting that Justice McLachlin, as she was then, presented a dissenting point of view on what date should the constitutional clock be rewound to because in the case of an "appeal and a new trial" it is difficult to determine whether the institutional delay, the inherent delay or other periods of delay arising in the first trial should be included in the calculation of the length of delay in a s. 11 (

b) inquiry for the second trial. The decision of the majority in Potvin did not clearly indicate what it meant when it commented on or made reference to the constitutional clock being rewound after a successful appeal. On Paragraph two, she commented on the issue for the minority suggesting that "rewinding the clock" could mean different things: ‟If the result of the appeal is an order for a trial (in the case of a stay) or for a new trial (in the case of a verdict), the clock is wound back. My colleague does not specify precisely what he means by this.

One possibility is that the entire analysis, including the period of appellate delay, would be assessed under s. 11 (b). The other possibility is that different segments of the process leading to the ordered trial, would be analyzed under different sections of the Charter : s. 11(

b) up to the stay or verdict; s. 7 abuse of process from then to the order for a trial; and s. 11(

b) once again after that order is madeˮ. [ 31 ] Furthermore, the case R. v. Owens is of particular interest. It was decided by my colleague Justice of the Peace Quon. He has dealt with a matter that involves three

Part III offences where there has been a conviction, an appeal and an order for a new trial. He analysed various caselaw, including the Supreme Court decision in Potvin, and relied on the analysis provided in R. v. Spencer. [ 32 ] As in Spencer, Justice Quon excluded the appeal period and included the following periods in para.105: ‟Hence, when a new trial is ordered then the period covered in the delay calculation includes the period from when the charge was laid to the completion of the first trial, as well as the period from when a new trial is ordered to the new trial dateˮ. [ 33 ] Justice Hryn in R. v.

Spencer also agrees that if a new trial is ordered, the period covered in the delay includes the period from when the charge was laid to the completion of the first trial. It also includes the period from when a new trial is ordered to the new trial date. [ 34 ] He addresses the concerns arising from the combination of delay in the first and the second trial would lead to a successful 11 (

b) applications by surpassing the guidelines of 8 to 10 months suggested in Morin as a guide for provincial courts. [ 35 ] In R. v. Spencer, Justice Hryn at para. 10 reviews the following conclusion of Justice Nadelle in R. v. Laflamme and its reference to Potvin regarding the start of the constitutional clock: ‟I interpret this to mean that the constitutional clock begins running anew from the date of the appellate decision ordering a new trial, rather than going back to the original charge date or original first trial date . To find otherwise would mean that in virtually all cases where a new trial is directed, the accused on a s. 11 (

b) application would get the benefit of the earlier time delay and the latter time delay before the newly-ordered retrial, and thus where there may not have been sufficient delays to even trigger an inquiry separately, when combined would provide such a triggering effect, and, likely a successful 11(

b) applicationˮ. [ 36 ] At paragraph 22, Justice Hryn reaches a different conclusion from Justice Nadelle in Laflamme. For Justice Hryn, s. 11(

b) applies also to the period of institutional delay or to any prior delay arising in the first trial: ‟The Court's language in Potvin , indicating that the fact of an appeal does not mean, "s. 11(

b) is spent" and the Court's reference to the charge being "revived," and the accused reverting "to the status of a person charged," connotes a reverting to the prior status with a continuing analysis of the accused's s. 11(

b) rights, excluding the appellant period, and not that the s. 11(

b) rights are considered anew without consideration of any prior delayˮ. [ 37 ] In addition, justice Hryn in R. v. Spencer , at para. 25, explains that the guideline in Morin of 8 to 10 months are only guideline and they are not static. They can be expanded to take into consideration the inherent time requirements for conducting two trials. ‟ In Morin , the Court suggests a period of institutional delay of between eight to ten months as a guide to provincial courts. The concern expressed in paragraph 16 of Laflamme, that where a new trial is directed then combining the earlier time delay and the latter time delay would, "in virtually all cases" result in a successful 11(

b) application is only a concern if the eight to ten months guideline is seen to be static. But in Morin the Court states that inherent time requirements be considered. Ordering a new trial after an appeal is an inherent time requirement to be considered in such an analysis expanding the eight to ten month guidelineˮ .

[ 38 ] I am satisfied that I could follow the reasoning in Spencer by starting the constitutional clock from the offence date for Ms. Sky while respecting the guideline of the Supreme Court of Canada in R. v. Morin regarding the institutional delay. Depending on the inherent time requirements for conducting two trials, this delay may be higher or lower than 8 to 10 months and should not be strictly applied. [ 39 ] This flexibility is confirmed at page 807 of R. v. Morin ’s guideline for delay in provincial courts of eight to ten months. This guideline is just that: ‟ a guideline, not a limitation period.

Deviations of several months in either direction can be justified by the presence or absence of prejudiceˮ. The guidelines and applicable Law: [ 40 ] In regard to the guideline, this is not a formula but rather a framework within which the circumstances of each case are to be analyzed as indicated in R. v. Morin: " The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula, but rather by a judicial determination balancing the interests which the

section is designed to protect against factors which either inevitably lead to delay or otherwise the cause of delay. " [ 41 ] Since the 1992 Morin decision, much case law has come to pass which have clarified the issues that have arisen in the application of this analysis. The fundamental priority underlying

section 11 (

b) is the maintenance of an efficient system for the administration of justice in order to ensure that individuals are treated fairly and justly. [ 42 ] It is settled law that the court must consider the following factors: the length of the delay from the offence date until the end of the trial; whether Ms. Sky has waived any of the delay; the reasons for the delay, including (

a) the inherent time requirements of the case, (

b) the actions of the defendant, (

c) the actions of the Prosecutor, (

d) limits on institutional resources and (

e) other reasons for delay and the prejudice to the accused. [ 43 ] Factor number 1, length of the delay: At the outset, this matter took from November 2, 2010, 24 months and one week to come to this stage and still hasn’t reached the final trial stage. [ 44 ] Factor number 2, waiver of time period : There has been no waiver of Ms. Sky's

section 11(

b) rights by Ms. Sky, implied or otherwise. [ 45 ] Factor number 3 , an examination for the delay : When looking at delay, we look at two components of the overall delay: the inherent delay that must inevitably transpire as well as the institutional delay which constitutes the remainder of the delay. [ 46 ]

A) Inherent time requirements of the case: As observed by the Supreme Court in Morin: ‟ all the offences have certain inherent time requirements that inevitably lead to delayˮ. In the case of Andrade and Hariraj at para. 58, decided by Justice Libman, he suggests that the inherent delay is to be viewed on a sliding scale. The initial intake period typically ranges from 30 to 45 days for most minor

Part I infractions. [ 47 ] Ms. Sky filed promptly her notice of intention to appear in court for a trial seven days after her charge on November 2, 2010. For the first trial date, as in Andrade, an intake period in the lesser range of 30 days is appropriate. [ 48 ] The remaining time from the offence date to the first trial date on August 15, 2011 should not be counted against the prosecutor or the defendant or weighed in determining whether the delay was unreasonable. The court doesn’t see a reason to attribute it against the prosecution because the timing for the first trial was reasonable.

In the same manner, the court doesn’t see a reason to attribute it against Ms. Sky because she was sick on the trial date and her matter was properly reopened. [ 49 ] The Ontario Court of Appeal in its decision regarding the case R. v. A.J. W. in 2009 dealt with the issue of delay due to an illness and attributed it as a neutral time. At para. 35 it states: ‟Delay as a result of the illness of a witness is ordinarily attributed to the inherent time requirements of the case. As justice Hill said in R. v.

Hoffner of 2005, at para. 41: "Such a contingency, while unfortunate and unexpected, is nevertheless an inherent feature of the litigation process. In turn, therefore, reasonable delay to a new trial date is prima facie considered neutral." Justice Hill went on to make the important point that not all the ensuing delay is necessarily neutral. If the time to the next trial date is itself unreasonable, some portion of the delay is properly considered institutional delayˮ. [ 50 ] Therefore, the court will consider the remaining 8 months and 13 days as neutral time.

The three days’ time from August 15 to August 18 2011(the appeal time) will also be marked as neutral time. [ 51 ] In regard to the intake period from the reopening of this matter on August 18, 2011, Ms. Sky was prompt again. Three days after her conviction on August 15, 2012, she attended the court and reopened her matter. She was handed, as well as the prosecution, a notice of a second trial date on August 19, 2011, only one day later. This case is not complicate and it will require limited administrative processing, the court will attribute a maximum of two weeks of intake period.

[ 52 ] The total intake period will be 45 days and the neutral time will be 8 months and 16 days for a total of 10 months and one day. [ 53 ]

B) Action of the defendant: I consider the delay from February 2, 2012 to May 31, 2012 is due to Ms. Sky and her decision to request the disclosure late. I am not putting the blame on her! I am just indicating that she requested her disclosure late on February 2, 2012 and the trial date was adjourned to May 31, 2012. Therefore, the delay of 4 month will be attributed to her. [ 54 ]

C) Actions of the prosecutor: The delay from the reopening on August 18, 2011 to February 2, 2012 is institutional, except for the second intake period of two weeks. The institutional delay here is 5 months. The delay from May 31, 2012 until now is institutional delay. I’ll attribute another 5 months and 9 days to it. [ 55 ] The court therefore finds that in this matter there was a delay: Attributable to Inherent time requirements of 10 months and one day. The attributable to institutional delay in this application was 10 months and 9 days. The total delay is 24 months and one week.

The remaining 4 months that elapsed from the second trial date on February 2, 2012 to May 31, 2012 is attributable to the defendant. [ 56 ] The court takes note of Justice Libman's finding in Andrade , at para. 84, he states the following: "... constitutionally tolerable period of institutional or systemic delay in the Toronto Region for the type of minor

Part I provincial offences cases in question as being between 8 and 9 months. " Again, Justice Libman states at para. 73 of Andrade , that 8 to 9 months was the " constitutionally tolerable limit of systemic or institutional delay. I see no reason to adjust this administrative range upward or downward for the provincial offences charges in question, having regard to the fact that they consist, essentially, of a one witness prosecution, and involve simple and uncomplicated issues..." [ 57 ] Factor number 4: Prejudice: Ms.

Sky’s counsel provided the court with an affidavit that described some of the prejudice she suffered due to the delay in bringing this matter to trial. I quote: On October 9, 2012 it will be 23 months and one week from the day I was charged. I have appeared in court ready for trial on two occasions. This will be my third time and the second time I have appeared with counsel. I have taken substantial time off work and have sustained both financial and emotional prejudice by reason of the continuing delays.

Moreover my memory of the events in question continues to be affected by the delay and will affect my ability to make full answers and defence. [ 58 ] In balancing at this time , the court must decide if the overall length of the delay, which is 24 months and one week is unreasonable having regard to the competing interest of Ms. Sky and the societal interests , the explanation for the delay, and the prejudice to the accused, as indicated in R. v.

Tran , supra , at para. 24, citing Morin : ‟Once the four factors have been assessed, the court must determine whether the length of the delay is unreasonable having regard to the interests of the accused and the societal interests s. 11(

b) seeks to protect, the explanation for the delay and the prejudice to the accused. See Morin at pp. 786-803ˮ. [ 59 ] The case before me is neither a complex case that requires more time to prepare, nor a case that involves serious charges. The court is not suggesting that the offence of Red light-Fail to Stop is not a serious charge! However, it is a routine

Part I POA offence. For this matter, the prosecution has anticipated one witness, the Officer, and the defence anticipates calling one witness. The trial is not expected to take a long time, may be half to one hour. Decision: [ 60 ] Based on the totality of the evidence before this Court, including the reasons provided earlier, on a balance of probabilities, the court finds that there is inferred prejudice as a result of the delay in bringing this charge of Red Light- Fail to stop to trial. As such, the LOW end of the guideline recommended by R. v. Morin of 8 months is exceeded.

I am satisfied that the defendant’s rights to trial within a reasonable period of time have been infringed contrary to s. 11 (

b) of the Charter to the degree that it would be unfair not to grant the stay she seeks. [ 61 ] Therefore the motion of Ms. Sky is granted and these proceedings are ordered stayed pursuant to

section 24 of the Charter . Dated at Toronto, this 9 th day of November, 2012. _____________________ Mohammed Brihmi, J.P.