Mississauga (City) v. Gordon, 2016 ONCJ 587

CITATION: Mississauga (City) v. Gordon , 2016 ONCJ 587 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : THE CITY OF MISSISSAUGA -and- LEVONDREA GORDON REASONS FOR JUDGMENT Duncan J. Introduction: 1 . The defendant was charged by certificate of offence with careless driving contrary to

section 130 of the Highway Traffic Act. 2 . The offence date was August 22 2014. The trial was held on October 5 2015, some 13 ½ months later. The defendant says that that was too long to wait for his day in court. He brought an application under Charter

section 11B to stay the proceedings. The application was dismissed. The ensuing trial ended in conviction. 3 . The defendant appeals his conviction, focusing exclusively on the 11B ruling. The 11B Application: 4 . A person served with an Offence Notice is required, within 15 days, to exercise one of the options listed on the back of the Notice – plead guilty, request an early resolution meeting with the prosecutor or request a trial. The first two options can be exercised by checking the appropriate box and mailing in the Offence Notice.

The trial option requires personal attendance at the court with the document at which point a Notice of Intention to Appear is completed and a trial date is set. Failure to exercise any of these options by mailing in the Notice or attending at the court results in a deemed conviction. POA sections 5 – 9. 5 . In argument on the 11b application in this case the prosecutor, referring to the relevant court documents, pointed out that the Offence Notice – which he assumed had been mailed in [1] - failed to tick any option.

As a result, the matter was set for an early resolution meeting. [2] A notice of time and place for that meeting was sent to the defendant setting March 23 2015 as the date for the meeting. The prosecutor informed the court that his colleague’s notes from the resolution meeting disclosed that Mr. Rowe appeared, an offer of resolution was made, but Mr. Rowe could not reach his client for instructions. A trial date was set with an understanding that the case would be brought forward for resolution if the client accepted the resolution offer. (Transcript P 40-41)

6 . Following that meeting the trial date of October 5 th 2015 was set. 7 . The prosecutor submitted that the time to the resolution meeting (7 months) was to be considered as neutral or waived time, citing Mississauga v Lam [2012] OJ No 5594 , and that the balance of the time to trial (March 23 – Oct 5) was unexceptional and well within constitutional tolerance. 8 . The defendant’s legal representative, Mr.Rowe, asserted that the defendant did not mail in an incomplete Offence Notice.

Rather, he attended court in person wanting to set a trial date but was effectively forced to set an early resolution meeting that he never requested or wanted. 9 . The learned trial Justice referred to this assertion of the defendant made “through Mr.Rowe” and said that he was “not in a position to disagree with it”. (Transcript P 46-47). He went on to consider the whole 13 ½ month period less two months of standard “intake” and considered that the resulting delay of a little over 11 months was “not excessive for a charge of careless driving”. He dismissed the application (Transcript P 53). 10 .

The defendant/appellant argues that the trial Judge erred in this conclusion. In particular he submits that the period of systemic delay exceeded the guidelines for such matters in the Provincial Offences Court and that the reasons given for approving of the excess were insufficient. 11 . I do not find it necessary to deal with these arguments. In my respectful view, the learned trial Justice made a fundamental error in favour of the defendant, by accepting the defence assertion that the defendant attended court and was compelled to have an early resolution meeting.

There was no evidence to support this assertion. While reference was made to the defendant’s affidavit, that affidavit says nothing of the sort.

It is set out here in full: AFFIDAVIT OF LEVONDRE GORDON I, LEVONDRE GORDON, of the city of Mississauga, MAKE AN OATH AND SAY AS FOLLOWS: 1) That I am the defendant / Applicant in this matter and as such have personal knowledge of the matters hereinafter deposed. 2) That on the 22 nd , day of August 2014 I was charged with the offence of: Careless driving. 3) That a trial date was set indicating the time and place of my trial, specifying a trial date for the 5 th , day of October 2015. 4) That this is the first trial date set for the offence indicated herein. 5) That I verily believe that the time delay is a violation of my right to be tried within a reasonable time as guaranteed under

section 11(

b) of the Canadian charter of Rights and Freedoms . 6) That the delay has caused and continues to cause me prejudice and without limiting the generality of the prejudice, I have suffered as a result of the delay from: (

a) Stress and anxiety; (

b) Consistently being worried about insurance increase in premiums; (

c) Lack of recollection in order to make full answer and defence; (

d) Continually being distressed about continuing legal fees. (

e) I have experienced extreme anxiety and extraordinary personal pressure (

f) That this delay has caused me and continues to cause me to obtain employment in and out of province. (

g) Continually being distressed about accumulation of demerit points.

7) That I have not waived my right to be tried within a reasonable time, either expressly or implied, under The Canadian Charter of Rights and Freedoms . 8) In addition, I have constantly worried as to what would occur in the final result which has caused me to have problems fulfilling my responsibilities at school and the threat of these charges hanging over my head as been a significant burden and has impacted on my security as a person attributable to untold stress causing me to have headaches and nausea. 9) That my actions in no way lead to the delay. 10) That I make this Affidavit in support of a Notice of constitutional Question and for no improper purpose. 12 .

There is nothing in the affidavit about coming to court in person, requesting a trial and being effectively forced to have a resolution meeting instead. It does not address the history of the proceedings or even mention the resolution meeting or how it came about. The statement in paragraph 9 that “my actions in no way lead to the delay” is vague, conclusory boiler-plate and provides no facts. Accordingly, the assertion had no evidentiary foundation. 13 . I am not suggesting that formal proof is always required before something can be accepted as fact.

A court – particularly a high volume court such as a POA trial court – is entitled to act on information that falls short of strict evidentiary standards. But there must be some indicia of reliability accompanying that information, particularly when it goes to a crucial or disputed issue. By way of example in this case, the prosecutor read to the court the notes of his colleague who had conducted the early resolution meeting, as described in paragraph 5 above.

This was of course hearsay – but it was highly reliable for a number of reasons – it was a note made by an officer of the court intended to be relied upon by subsequent prosecutors on the brief; there would be no reason to fabricate and every reason to be accurate; the event described occurred in the presence of the defendant’s legal representative who would have personal knowledge of the accuracy or otherwise of the note. The subject matter - what occurred at the meeting - did not go to a crucial issue on the 11b application. 14 . No similar indicia of reliability accompanied the assertion at issue in this case.

While it was made by an officer of the court – and I do not in any way question Mr. Rowe’s integrity –the fact is that he had no personal knowledge of the accuracy of the assertion, which could only be as reliable as its source. With respect, it is my view that the learned trial Justice was in error in giving any credence or weight to the assertion. 15 . The defendant carried the burden of proof on the application. He failed to satisfy that burden. In the result, there was no basis to find that anything occurred in this case that was unusual or beyond the control or responsibility of the defendant [3] .

The time to the resolution meeting should have been excluded by the trial Justice from the 11B calculation. Had he done so, he would have inevitably and correctly dismissed the 11b application. 16 . The appeal is dismissed. October 3 2016 B Duncan J. R Rowe for the Appellant Office of the Municipal Prosecutor for the City of Mississauga, for the Respondent