Burlington (City) v. Lacdan, 2015 ONCJ 502

Citation: Burlington (City) v. Lacdan, 2015 ONCJ 502 IN THE MATTER OF The Highway Traffic Act R.S.O. 1990, S 53(1) Highway Traffic Act R.S.O. 1990, S 128 11B application for delay with respect to the above charges Between Her Majesty the Queen represented by The Corporation of the City of Burlington Respondent and Mr. Ramon Lacdan Applicant Ontario Court of Justice Burlington, Ontario G.

Manno, Justice of the Peace, CW Region Reasons for Judgement Charter Application Heard: July 29th, 2015 & August 11, 2015 Judgement Rendered: September 8, 2015 Statutes, Rules and Regulations Cited: Highway Traffic Act, R.S.O. 1990, c.H.8, s.1(1), s(46), s. 52(1), s. 52(2), s. 53(1), s. 210(7). Provincial Offences Act, R.S.O. 1990, c.P.33. The Constitution Act, 1982 (Schedule

B) of the Canada Act 1982 (U.K.), c.11. (the ‘Charter’). Ontario Evidence Act, R.S.O. 1990 C. 23 – 25. Cases Considered: R v Andrade, 2011 ONCJ 470 , [2011] O.J. No. 4245 (OCJ). R v Askov (1990), 2 S.C.R. R v Berbatiotis, 2007 ONCJ 561, [2007] O.J. No. 4683. R v Cranston, 2008 ONCA 751 (ONT. C.A.).

R v Delaney, 2015 ONCJ 468. R v Godin (2009), 2 S.C.R. R v Hussain, [2005] O.J. No. 158 (ONT. C.J.). R v Lahiry, 2011 ONSC 6780 , [2011] O.J. No. 5071. R v Morin (1992), (SCC), 71 C.C.C. (3d) 1 (S.C.C.). R v Omarzedah, [2014] O.J. No. 2212 (ONT. C.A.). R v Vellone 2009, ONCJ 150 (ONT. C.J.). Counsel and Crown: J. Tuttle, Hicks, Adams LLP, Toronto, ON. for the Applicant (referred to as ‘Counsel’). J. Dafoe, Crown Attorney’s Office, Milton, ON. for the Respondent, (hereinafter referred to as the ‘Crown’ or ‘Prosecutor’). Background 1. These charges commenced with the laying of a

Part III Information for Drive while suspended and Speeding. The first charge isunder the Highway Traffic Act s. 53(1) which specifically states “Every person who drives a motor vehicle or street car on a highwaywhile his or her driver’s licence is suspended under

an Act of the Legislature or a regulation made thereunder is guilty of an offence andon conviction is liable, (

a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and (

b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000, or to imprisonment for a term of not more than six months, or to both. R.S.O. 1990, c. H.8, s. 53 (1); 1997, c. 12, s. 7 (1).” The Speeding charge is under

section 128 of the Highway Traffic Act and is an Absolute Liability Offence normally proceedingusing a

Part I Certificate of Offence. However in this case it forms the second charge on the subject

Part III Information before theCourt. 2. The underlying charges originate from an Information (# 139306), duly sworn on the 12th day of June, 2013 alleging that the Defendant, Mr. Lacdan drove a motor vehicle on a highway on the 28th day of May, 2013, in the City of Burlington, Halton Region,when his license was suspended by operation of the Highway Traffic Act, contrary to section 53(1) of that Act and furthermore wasspeeding at the rate of 130 kph in a posted 100 kph zone contrary to

Section 128 of the Highway Traffic Act, as amended. 3. For legal clarity, Section 1(1) of the Highway Traffic Act (hereinafter “HTA”) defines “driver’s license”, “highway”, “Ministry”,“Motor Vehicle” and “Registrar”. In this particular case, none of these

definitions or their applicability is at issue. 4. This Application under the Charter commenced on July 29th, 2015 at the Burlington Provincial Offences Courthouse before me, continued on August 11, 2015 and adjourned to today (September 8th, 2015) to consider submitted common law, the respective factumsand for judgement. 5. There have been numerous visits to Court on this matter dating back to June 18, 2013 to today’s date. A

summary of those visitsand their purpose is found below and further supported by the Official Transcripts attached to the Applicant’s Application Record.

6 . Visits to Court : June 18, 2013 – The matter was first in court on this date wherein the Defendant Mr. Lacdan was provided with his Disclosure and the Guide to assist Self-Represented Litigants. It was adjourned to allow the Defendant to consider his options and the Disclosure contents. July 30, 2013 – The matter was adjourned to this date so that he could consider the Disclosure and decide if he would be retaining legal counsel. September 17, 2013 – Mr. Lacdan, the Defendant requested a further adjournment in order to consult with Counsel and to save enough money to perfect legal retainer.

October 29, 2013 - The Defendant admitted that he had not yet retained Counsel and that money is a factor. The matter was adjourned to allow the Defendant more time to hire Counsel. December 3, 2013 – This is the first date wherein a Tagalog interpreter was used to assist the Defendant, though not requested by the Defendant up to this point. Defendant presented a letter from counsel indicating that he would be available to attend Court on January 7, 2014 at 1:30 p.m. To accommodate Counsel’s request, an adjournment was granted. January 7, 201 4 – Counsel Mr.

O’Connor sent another letter into Court indicating that he was unable to attend and requested a further adjournment to January 24 th , 2014 to set a trial date. The Tagalog interpreter was not in Court but the Defendant indicated he was comfortable proceeding in English for this Adjournment request. The Prosecution indicated that they were not available on the date requested but instead could return February 18, 2014. February 18, 2014 – The R v Jenkins caution had been given to the Defendant on a previous date and that it was a live issue. The Defendant failed to appear for this scheduled court date.

The Court established an expartie trial date. July 9 th , 2014 was the first available trial date. The Prosecutorial witness/officer indicated that they were not available on that date and another date was selected, that being August 6 th , 2014. The matter was scheduled for an expartie trial for August 6 th , 2014. August 6 th , 2014 – Crown indicated they were ready for trial on this date. However, the Defendant who was in attendance begged the Court to grant another adjournment. The Court after some inquiry was satisfied that Counsel might have been retained but was not present.

The Crown added that Counsel had never appeared on this matter nor had they made any efforts to contact the Prosecutor’s office to discuss the case. The Court granted this Defendant an adjournment and endorsed the matter as peremptory on the Defendant for the next selected date. The matter was remanded to January 21, 2015 for trial. January 21, 2015 – The Crown admitted that it had just received documents (15 minutes before Trial) and had not had an opportunity to forward them to the Defendant/Counsel as required under the Evidence Act – evidence and documents the Crown intended to rely upon at trial.

In order to resolve the breach in the notice provision, and despite the protestations of the Defendant who objected to an adjournment, the Bench offered one further adjournment to deal with this disclosure issue. This is the first time Counsel had appeared and this also marked the first appearance by Counsel, J. Tuttle of Hicks Adams LLP of Toronto. The matter was adjourned to July 29, 2015, which was the first date wherein the 11B motion was tabled and argued.

July 29, 2015 & August 11, 2015 – were the dates to receive and hear evidence regarding the Applicant’s Record , the relevant case law and the Respondent’s position.

Applicant’s Position: 7 . In short, Counsel for Mr. Lacdan would characterize the time periods and delay as follows: May 28, 2013-December 3, 2013 – neutral time used for normal intake period and for retention of Counsel; (6 months and 6 days) December 3, 2013 – February 18, 2014 – Defence adjournment requests (2 months plus 15 days). February 18, 2014 – August 6, 2014 – should be characterized as Crown/institutional delay (5 months plus 18 days) August 6, 2014 – January 21, 2015 – Defence and institutional delay (5months plus 15 days).

January 21, 2015 – July 29, 2015 – Crown adjournment for evidence crown/institutional (6 months plus 8 days). 8 . The Applicant inter alia relies on two factors, the first being there have been no express waivers of 11B rights at anytime during the dates mentioned above, and, that the total delay that can be attributed to institutional delay is 11 months plus 26 days which is outside of the 8-10 month guideline provided for by Morin . This total is the mathematical sum of the days from February18/14 to August 6/14 added to the days between January 21/15 and July 29/15. The Respondent’s Position: 9 .

The Prosecutor began by indicating that the period in calculating the total delay in an 11B analysis starts from the date the Information was sworn rather than beginning with the date upon which the alleged Highway Traffic Offences ( HTA ) offences occurred. 10 . While it is true that the total period calculated by the Respondent is 25 months, they also agreed that this time period warranted a Court inquiry into the reasons for such a delay. 11 . The Respondent relies on the fact that the Applicant Mr.

Lacdan was not ready for trial at any point during 2013 or 2014 and in fact the first indication that Counsel had been hired came with Counsel’s first appearance on January 21, 2015. It submits that the time period must start from the point at which the parties are ready for trial, which in this case would be January 21, 2015. 12 . The Respondent accepts that the delay from January 21, 2015 to July 29, 2015 rests on their shoulders having been unable to provide business documents they intended to rely on to the Applicant/Defendant.

This alone necessitated an adjournment to provide those documents to the Applicant once the Court was satisfied that the Prosecutor/Respondent did not have these documents in their possession for long (see Official Transcript 21, Jan., 2015, lines 5-6). 13 . Furthermore, the Respondent submits that it would be a ‘travesty of justice’ to find that the Crown or institutional delay was responsible for the adjournments requested by the Defendant when such adjournments were essentially granted to help him to obtain Counsel. 14 .

The Respondent would characterize the delay from January 21, 2015 to July 29, 2015 as institutional delay (see page 3 Respondent’s factum).

15 . As such, the total delay is 6 months or so and the Crown submits that this time period does not offend the 8 to 10 month period set out as a guideline by Justice Sopinka in Morin . The Court’s Analysis: 16 . In general terms, the law is about balancing interests between parties. This might be the consideration of one neighbour’s rights vs. another or it might be between one individual’s rights vs. those of the Crown. In an 11B analysis, it is less about mathematical computation; rather it is an exercise by the Courts in balancing one’s individual rights under the Charter vs. the rights of society.

There is rarely one accepted answer that ‘fits all’. In some cases a Charte r breach might be present but the derivative evidence coming from the Charter breach is still admitted into the trial where courts feel that the prejudicial effect of the admission of such evidence is outweighed by the probative and serious nature of the charges. At other times, a Charte r breach will necessitate exclusion of evidence. Where the breach cannot be rationalized and the prejudice cured in any other way, the Court is bound to provide the only remedy; a judicial stay of the charges before the Court.

The common law supports the notion that a stay of charges is to be used sparingly and as a last resort in only the clearest of cases, when there can be no other way of addressing a breach. Ultimately and where possible, Defendants who ask for a trial should be provided that right. The adversarial trial process is the only mechanism wherein the integrity of evidence can be properly tested to achieve a fair and hopefully just result. 17 .

Also in general terms, the Court accepts that when there are multiple charges or even a single charge, 11B motions normally encompass all of these charges since charges usually emanate from the same set of facts. However, if the Court finds that the prejudice and/or the jeopardy is not the same for all of the charges, we believe the Court has the jurisdiction to bifurcate the consideration and analysis of these charges.

In other words, even though such charges may stem from the same set of circumstances, it is this Court’s contention that the arbiter may examine the charges separately and potentially justify more than one outcome if doing so achieves a better balance and a more just result. For instance, in this case one may reach the conclusion that a breach of section 53(1) HTA , (a strict liability offence) where there is a potential for incarceration might carry with it a significantly different element of prejudice than an absolute liability offence such as speeding under

section 128 HTA. It is challenging finding common law that supports this notion. Though this Court considered this possibility, the analysis below supporting the decision reached by this Court eliminates the need to look at such a ‘separation’ in analysis. As such the consideration of the 11B motion will apply to both charges before this Court. 18 . The analysis or framework to consider, set out in Morin and Askov, is as follows. The Court must consider (1) the length of the delay; (2) the waiver of time periods; (3) reasons for the delay, including; (

a) inherent time requirements of the case; (

b) actions of the Accused or Defendant; (

c) actions of the Crown or Prosecutor; (

d) limits of institutional resources, and; (

e) other reasons for the delay, and;

(4) Prejudice to the Accused or Defendant. This analysis is set forth below. 19 . Length of the Delay - Both parties and this Court agree that the overall 25 – 26 month delay is sufficient to warrant an inquiry and that the delay in an 11B analysis is to be calculated from the date that both parties are deemed ready to set a trial date. The Applicant and Respondent disagree as to who should bear the responsibility for some of that delay and upon which date the calculation of the time period should commence.

The Applicant would have the Court accept that the time period should commence from the date the Offences occurred. The Information records this date as May 28, 2013. The Respondent believes that the analysis should begin from the date the Information was sworn which was June 12, 2013. After some reflection, this Court is satisfied that the period should commence from the date the Information was sworn, ( see Morin ) which is when the charges were laid. Even if we accepted the Applicant’s position, in this particular case, it would not change the overall result of the analysis or the Court’s decision.

As such, the Court is examining a period encompassing a total of 25 months. Once again, this calls for an inquiry. 20 . Waiver of Time periods – All parties agree and accept that there has been no express waiver of any of the time periods . 21 . Reasons for the Delay – (

a) Inherent Time requirements of the Case –The inherent time requirement would encompass the time period up until the parties are ready to set a trial date ( see R v Cranston , supra). This particular case does not involve any complexity or nuance that would require additional time. Much of the initial periods that are included in the 25 months have to do with the Defendant’s (Applicant) requests for adjournments needed to perfect retainer of private Counsel. The Applicant for one reason or another had also changed their choice of Counsel from Mr. O’Connor to Hicks Adams.

As well, one could argue that in this jurisdiction it is widely accepted that the setting of trial dates has gone from weeks to months in many cases and the strain on the system is becoming pronounced. One can see from the length of time between adjournments that the earliest date available for a return date was months in advance rather than weeks. Institutional ‘strain’ can be inferred by the selection of such dates.

It is not clear however, that any of the return dates were objected to (except for January 21, 2015 to July 29, 2015) and the Applicant appeared to consent to the matter being put over to be able to retain Counsel. No objection is evident in any of the transcripts by the Applicant except for the one noted adjournment.

22 . (

b) Actions of the Defendant - As stated above (and evident in the Official Transcripts), the Applicant was responsible for most of the adjournments up to 2015 as a result of incomplete Counsel retainer. At one point, the Applicant failed to attend his Court date and though the matter could have jurisdictionally proceeded on an expartie basis (February 18, 2014), the Court offered a further adjournment to August 6 th , 2014.

This particular adjournment was given out of an abundance of caution, as the arbiter that day felt that there was some evidence that Counsel might have been retained but did not have the opportunity to attend. To repeat, the Defendant was not in attendance when the next Court date was selected and confirmed as the expartie trial date. As the transcript will attest, an earlier court date of July 9 th , 2014 was offered but the Prosecution’s witness could not attend. The subsequent date of August 6 th , 2014 was selected to accommodate the Prosecution and Prosecution’s witness.

That time period will be dealt with below. 23 . (

c) Actions of the Crown – The Official Transcripts appear to indicate that the Prosecutor was ready to proceed to trial as early as August 6, 2014 (see Transcript). However, there are two time periods where the Court would agree with the Applicant’s submissions that the Crown should bear the responsibility for those adjournments. The first period was a 27 day period mentioned above where the Court offered a trial date of July 9 th , 2014 but the Respondent selected a date of August 6 th instead.

The second period arose on January 21, 2015 wherein the Prosecution could not provide the required notice to the Defendant under the Evidence Act for business records they intended to rely upon. The Prosecution had only received such documents on that very day, 15 minutes ahead of Trial, there was no opportunity realistically to get that evidence to the Defendant and satisfy the legal notice requirements.

As a result of this reasoning, and in an effort to ‘cure’ the default in the notice provisions, the Court granted an adjournment to ensure the Defendant had the documents and proper time to review those documents ahead of trial. The Crown accepted responsibility for this adjournment and the Court agrees that it should be noted as a Crown delay rather than institutional delay or that of the Defendant. The Court notes that the Applicant did not consent to this adjournment and in fact, objected to putting the matter over to a subsequent date.

Neither was there any evidence that the Applicant agreed to waive the notice provisions permitting the trial to proceed that day. This created a delay that all parties agreed would be borne by or assigned to the Crown. That period was 6 months and 9 days. 24 . (

d) Limits on Institutional Resources – It is widely accepted that in Burlington, it is becoming difficult to obtain timely trial dates for

Part III matters. Matters are now being put over for months as opposed to weeks in most cases which can become concerning. Having said that, in this particular case where the overall calculation of delay was considered, the strain or lack of institutional resources did not appear to play a significant role. 25 . (

e) Other reasons for the Delay – The Court did not assign any of the delay to ‘other reasons’ not articulated in the above analysis. 26 .

(4) Prejudice to the Accused/Defendant – The Applicant submits that in general, the more time taken to get a matter to trial, the more prejudice can be inferred. Additional legal costs, the time and cost of appearances and the stress this creates on the Accused and his/her family is palpable. This is particularly evident when an Accused is subject to pre-trial detention and they have lost their liberty. It is also true for those free on bail but subject to restrictive terms and conditions over a significant period of time.

The Court does not require submissions on the ‘actual’ prejudice suffered by an Accused; it can simply infer the presence of that prejudice. The Court is in sympathy with the strain and stress that many face moving through the legal system but must take care not to rule on the basis of emotional sympathy; rather it must decide without fear or favour. The Court must also be careful to separate the stress and the prejudice one may face as a result of the nature of the charges and the potential penalties one may face if convicted vs. the stress and prejudice the Accused faces as a result of Institutional delay.

Charter 11B motions are to be used for the latter and are not appropriate for the former. We acknowledge that Mr. Lacdan has been under considerable stress since he faces the possibility of incarceration and/or from potentially having to pay significant fines if found guilty. However, given the analysis herein, the Court would presume this stress is largely due to the gravity of one of the charges and not caused by Institutional delay. He has not been incarcerated nor has Mr. Lacdan had to live with any restrictive conditions in the interim.

There has been no evidence that he or the witnesses cannot recall the offences or that the Defendant is not able to mount a competent, full answer and defense to the charges before the Court. Conclusion: 27 . An 11B analysis should not be about mathematical computation. It is a balancing exercise between the rights of society to have these charges aired in Court vs the rights of the Individual under the Charter- that being to have their matter tried within a reasonable period of time. What constitutes a reasonable period of time is subject to

interpretation and to the framework analysis undertaken above. The only accepted remedy from a successful 11B challenge is a judicial stay of the charge(

s) before the Court. The Court must first ascertain whether or not there has been a breach of those rights. If the breach is evident, then the Court must then determine whether or not in the face of that breach, the Motion to Stay the charge should be granted once balancing the rights of the individual against the rights of society and after having weighed the prejudice to the Defendant vs the probative value of proceeding in the face of such a breach. In this case, the Court does not accept that there has been a breach of those rights. The Court does not accept the Applicant’s assertion

that the entire period between January 21, 2015 and August 6, 2015 to set the expartie trial date should be borne by the Crown or attributed to institutional delay. In assigning the time to the Crown and to any institutional delay, the Court finds that the total delay adds up to approximately 7 months and 6 days (period from Jan. 21, 2015 to July 21, 2015 plus a 27 day period from July 9 th , 2014 to August 6 th , 2014). This delay is clearly within the Morin suggested boundaries of 8 – 10 months all else being equal. 28 .

It could also be reasoned that the Crown is correct in its assertion that the Applicant was not ready for trial until January 21, 2015. This would mean that the 27 day period included in the delay calculation above would need to be subtracted from the overall delay, shortening that delay to approximately 189 days or 6 months and 9 days. 29 . Under either scenario this Court finds that there has been no breach under 11B of the Charter . Accordingly, the Motion is not granted and the charges are to move ahead to trial. Respectfully submitted September 8, 2015 G. Manno