2016 MBPC 27, 2016 MBPC 27

Cite: 2016 MBPC 27 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Charles Murray and David Burland ) for the Crown - and – ) ) Genevieve L. Grant, ) ) Markus Buchart for the Accused Accused ) ) Judgment delivered: May 18, 2016 ) MARY KATE HARVIE, P.J. Introduction [ 1 ] The accused Genevieve Grant is charged under The Highway Traffic Act s. 95(1) with speeding on October 27, 2014. After submitting a plea of “not guilty” in writing, the Accused was provided a trial date of April 27, 2016, a date 18 months to the day after the alleged incident.

The accused brings a motion for unreasonable delay, and asks the Court to enter a judicial stay of proceedings on the charge. Crown counsel contests the motion and asks that it be dismissed. The

Schedule of Proceedings [ 2 ] There is little contest over the events leading up to this motion. The incident arises from a photo radar investigation on October 27, 2014. The accused was mailed an “Image Capturing Enforcement System Offence Notice” on November 4, 2014 and was given until December 19, 2014, a period of just over six weeks, to respond by mail.

Although the forms that are forwarded to an accused with the Offence Notice are somewhat confusing, with the option to enter a “not guilty plea” and request a trial date being difficult to locate, it is agreed that she did just that, and that her plea was received by the court office by December 18, 2014. [ 3 ] Once the “not guilty” plea was received, the process established by court staff at the time was to have the matter “remanded internally” to a later date for a trial date to be fixed.

It is clear that the accused played no role in this process, and that after the passage of a further seven weeks, the trial date of April 27, 2016 was fixed. The accused was subsequently notified of the date by regular mail when she was sent a “Trial Notice” form. [ 4 ] For reasons that remain unclear, the prosecutions “disclosure package” was not mailed to the accused until December 28, 2015, over a year after her “not guilty” plea was entered.

It is conceded that she likely received the disclosure package in early January, 2016. [ 5 ] On March 22, 2016, counsel for the accused filed a Notice of Motion alleging that her Constitutional right to be tried within a reasonable time was infringed. The Motion was filed in compliance with the Provincial Court Practice Directives. The Notice of Motion was returnable for April 21, 2016 at 2 p.m. in Courtroom 403, a date which was, presumably, obtained in advance from the Trial Co- ordinator’s office. [ 6 ] Neither Crown nor defence counsel have requested any adjournments in this matter.

The Applicable Statutory and Case Law [ 7 ] There is no contest as to the applicable law.

Section 11(

b) of The Canadian Charter of Rights and Freedoms (“ the Charter ”) states: Proceedings in criminal and penal matters

11. Any person charged with an offence has the right, .... (

b) to be tried within a reasonable time: .... [8] The enforcement of the rights guaranteed by the Charter is addressed in s. 24(1) which states: Enforcement of guaranteed rights and freedoms 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [9] The accused seeks a judicial stay of proceedings and it is conceded by Crown counsel that if the accused is successful in hermotion, that a judicial stay is the appropriate remedy. [10] Both crown and defence counsel agree that where an unreasonable delay is alleged, each case must be assessed on its own facts.The leading cases in this area are well known and set out the principles to be applied by the Court; see R. v.

Smith, (SCC), [1989] 2 S.C.R. 1120; R. v. Askov, [1990] 2 S.C.R. 119; R. v. Morin, (SCC), [1992] 1 S.C.R. 771; and R. v.Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3. A recent application of the principles set out in the aforementioned cases can be foundin R. v. Vandermeulen, 2015 MBCA 84, where Beard J.A. confirmed that the analytical framework for a motion of this nature is that setout in Morin, supra and Godin, supra (at para. 17): [17] The leading decisions that set out the framework for a s. 11(

b) analysis are Morin and Godin. Sopinka J, for the majority inMorin, explained the factors to be applied and how they should be applied as follows (at pp 787-88): The general approach to a determination as to whether the right [under s 11(b)] has been denied is not by the application of amathematical or administrative formula but rather by a judicial determination balancing the interests which the

section is designed toprotect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith [(SCC), [1989] 2 SCR 1120], “[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay becomeunreasonable?” (p. 1131). While the Court has at times indicated otherwise, it is now accepted that the factors to be considered inanalyzing how long is too long may be listed as follows: 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 delay; and 4. prejudice to the accused. [11] The Court in Vandermeulen confirmed as well that the analysis requires a “balancing” of the length of the delay against theother factors, while taking into account both the individual and societal interests that Charter s. 11(

b) is designed to protect. [12] While each case turns on its own particular set of facts, it is also clear that the longer the delay, the more carefully the Courtmust scrutinize the cause to determine if the delay can be excused. [13] The burden of proof in establishing that any delay is unreasonable rests with the accused, although circumstances may alsoestablish a secondary or evidentiary burden which rests with the crown.

However, in all cases the Court should be mindful of the urgingof the Supreme Court in Smith, supra: In all cases, the Court should be mindful that it is seldom necessary or desirable to decide this question on the basis of burden of proofand that it is preferable to evaluate the reasonableness of the overall lapse of time having regard to the factors referred to above. The Length of the Delay [14] The process begins with an assessment of the delay from the date of the charge to the end of the trial. The delay from the

offence date of October 27, 2014 to the trial date of April 27, 2016 is 18 months. Crown counsel concedes that the amount of the overalldelay warrants further inquiry. [15] The motion was heard on April 21, 2016. At that time both parties expressed a readiness to proceed on the trial date of April 21,2016. Given the time required to finalize this decision in this matter, the trial date was cancelled by the Court. The Waiver of any Time Periods [16] In R. v.

Conway, (SCC), [1989] 1S.C.R. 1659, the Supreme Court noted (at para. 36) that “waiver involves aconsideration of whether any delays were requested, caused or consented to by the person charged.” Waiver can be expressed or it can beinferred if the accused undertakes “some direct action from which a consent to delay can be properly inferred”: see Askov, supra at para.109. However, acquiescence to the inevitable does not give rise to an inference of waiver: see Morin, supra at para. 33. [17] I am satisfied that any waiver of an accused’s rights under Charter s. 11(

b) must be clear and unequivocal, with full knowledgeof the rights that are being waived. Crown counsel essentially concedes that the accused did not waive any s. 11 (

b) rights. Any issuesraised with respect to the conduct of the accused are more appropriately addressed when assessing the “actions of the accused” in respectof the issue of prejudice. Reasons for the Delay [18] In motions of this nature, the reasons behind the delay must be scrutinized, recognizing that in all cases “some delay isinevitable”: see Morin, supra at para. 40. Inherent Time Requirements [19] It is important to recognize that there is a certain amount of time inherent to and realistic in any prosecution, given that bothparties require time to properly prepare.

A number of factors should be taken into account in assessing a reasonable amount of “inherent”delay, including the complexity of the case, any intake requirements such as the retention of counsel, bail hearings and disclosure. Itstands to reason that the more complex the case, the greater the potential for longer delays inherent to the nature of the case. [20] Both counsel agree that cases of this nature are not complex and the inherent time requirements should be limited.

I agree, andnote that there are few cases in the Court system more straightforward than these types of cases. [21] In Highway Traffic Act prosecutions of this nature, all communication is done by regular mail, beginning with the accused beingserved with an Offence Notice. In this case, a seven week period was allotted from the offence date to the due date for a plea. This periodis entirely reasonable, as it allows for the processing of the offence data, identification of the registered owner and service by mail of theoffence notice, and the response of the offender.

It properly takes into account any potential delay in the receipt of the documents, suchas the offender being away, and provides a reasonable amount of time for a response. [22] After the Court received the paperwork on December 18, 2014, the matter was “remanded internally” for a further seven weeksuntil February 6, 2015, when a trial date was assigned. There is little explanation for this delay, which seems excessive and unnecessary.It was certainly not caused by the accused.

In his brief, Crown counsel argues that a period of four months and ten days ought to beassessed as a reasonable amount of inherent delay, including a period of three months and ten days to “get the matter to the point that atrial date was set” and a further period of “one month for both sides to prepare for trial.” While it may have actually taken three monthsand ten days to have a date set, there is little reason why a trial date could not have been assigned within two to three weeks of the “notguilty” plea being received by the Court. [23] As indicated, Crown counsel argues that a period of “one month” be assessed as a period for “reasonable trial preparation.”There is no indication in any of the affidavits filed that a month would be necessary for trial preparation.

What is clear is that thesematters are extremely straightforward from the prosecution’s perspective, with the bulk of the case being introduced by certificates andother documents through a single peace officer. [24] Taking into account the nature of the offence, I am satisfied that a period of inherent delay of no more than two and a halfmonths would be warranted to move the matter from date of charge to the date where a trial date would be confirmed, with counselhaving completed their trial preparation.

I would also note that once a “not guilty” plea is received by the Court, steps should be takenforthwith to fix a trial date and notify the accused. Actions of the Accused [25] Crown counsel argues that the accused has contributed to the delay in several ways, the first by waiting until December 18,2014 to enter her plea. There is little merit to this argument. The documentation provided to the accused indicated that she had untilDecember 19, 2014 to respond. She did so within the allotted time period.

She cannot be faulted for doing so. [26] Secondly, Crown counsel argues that the choice of the accused to wait until approximately one month before the trial date tobring this motion meant that earlier trial dates that may have been available were not accessed.

In support of this position, counsel relieson the affidavit of Crown articling student David Burland, who advises that on two other occasions, earlier trial dates were provided totwo people who expressed concerns about the delay in their matters. [27] In assessing this argument, it is important to remember that all communications with the accused were conducted in writing andby regular mail. Because a copy of the actual form provided to the accused was not retained, a sample “Trial Notice” form was appendedto Mr. Burland’s affidavit.

This document sets out the time and place of the trial, as well as information about the responsibilities of theaccused as it relates to witnesses, subpoenas, and what might occur if they fail to appear for their trial. The bottom of the “Trial Notice”slip contains the following statement:

Accused: You, or a representative on your behalf, must appear as indicated above. If you intend to appear to request a new trial date, please notifythe Crown at 204-945-2852. (underlining added) [28] While the accused in this case chose to retain counsel at some point in the process, many of those who contest these matters aremembers of the public who are not legally trained and would have little familiarity with the court system. The plain reading of thisportion of the Trial Notice slip references an appearance on the trial date. It does not suggest that contact for the purpose of requestingan earlier date.

I appreciate that on occasion some accused have contacted the Crown to request an earlier date, as is evidenced by theaffidavit of Mr. Burland. But the information in the Trial Notice is equivocal at best, and falls far short of the type of communicationreferenced in Morin, supra, where the Crown Attorney’s office had sent a letter to local trial counsel stating in part (at para. 74): [i]f you wish to move up any of your cases up or feel that any of your clients are suffering prejudice as a result of delay please giveAudrey or I a shout and we’ll try to locate an earlier date.

Thank you for your cooperation. [Emphasis added] [29] It bears repeating that all communications in this matter were conducted in writing, and that in matters like this the accused isoften unrepresented. There is nothing in the documents filed which would suggest the accused knew or ought to have known that shecould request an earlier trial date. Nor can it be definitively said that her request for an earlier date could have been accommodated.Crown counsel has provided affidavit evidence which indicates that a new process has been instituted for dealing with an accused whowishes to plead not guilty.

The affidavit suggests improvements, but does not provide specific evidence of a reduction in delays for trialdates. While any improvements to the system are laudable, they do not assist in the determination of this particular case. [30] With respect to the timing of the delay motion, it is noteworthy that the application was filed within the time lines as set out inthe Practice Directives. I note as well that counsel filed the motion in advance of the trial date. The Actions of the Crown [31] The accused does not argue that the actions of the Crown have contributed to the delay.

It is noteworthy that the “disclosurepackage” from the prosecution was not forwarded to the accused until December 28, 2015, over a year after her “not guilty” plea wasforwarded to the court. The only explanation provided for this delay came from Crown counsel in argument, who indicated that inprosecutions of this nature, disclosure is provided to the Accused when it is received from the police department. I do note that Crowncounsel requires this information in order to proceed to trial.

I find that the unexplained delay in producing the appropriate disclosure toboth Crown and defence counsel to be very concerning. Limits on Institutional Resources [32] Both counsel agree that institutional delays appear to have been the greatest contributor to delay in this case. While institutionaldelays may be out of the direct control of the prosecution, “in all cases it will be incumbent on the Crown to show that the institutionaldelay in question is justifiable”: see Askov, supra at para. 94.

The Court in Askov acknowledged that “some allowances must be made forlimited institutional resources”, the Court also noted in Morin, supra, that “this consideration cannot be used to render

section 11(b)meaningless”, and that “There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequateresources” (see para. 48). [33] The Supreme Court has identified flexible guidelines to assist in the assessment of institutional delay, suggesting a starting pointof eight to ten months for a criminal

summary conviction matter. This case clearly exceeds those guidelines. Crown counsel proceedsfrom the position that these timelines are appropriate for a prosecution of this nature, encourages a “flexible” approach to the use ofthese guidelines and focuses only on time extensions beyond this period. [34] There is a strong argument to be made that these guidelines ought not to apply to simple matters such as a Highway Traffic Actprosecution, and if they do, should fall within the lower end of this suggested time range.

The suggested “flexible” approach to theguidelines includes an assessment of the complexity of the case. From the perspective of the prosecution, these cases are as simple asthey get, and those which involve “photo enforcement” only require the tendering of a number of certificates through a single witness.Most of these cases do not take much of the Court’s time, even if contested and involve defence evidence. They are in no way similar toother

summary conviction matters, which can involve hours of evidence from both Crown and defence. [35] Crown counsel refers to the “imperfect world of Manitoba’s traffic court” and the resource demands flowing from the volumeof cases in that court. Unfortunately, no evidence has been presented to identify the number of cases heard, the number of judicialofficers assigned to these Courts or the size of the daily dockets. Counsel references the decision of this Court in R. v. Amato, (MBPC) and R. v.

Zhang, unreported, MBPC (Winnipeg) March 11, 2016, as examples of the Court taking into accountthe “scarce resources” and “volume of cases” as the reality in Manitoba. General statements of this nature may be true, but the lack ofevidentiary specifics makes an assessment of the reasonableness of setting of a trial set well outside even the eight to ten monthguideline a very difficult undertaking. It also risks a conclusion that delays are “inevitable” to the point where, in the words of Morin,supra, they “render

section 11(

b) meaningless.” Prejudice to the Accused [36] The accused asserts in her affidavit that the passage of time has impacted on her ability to recall events around the time of theoffence, and specifically who may have been operating her vehicle at the time of the incident. I have some concerns about this argument,given that the original ticket included a photo of the vehicle and the details of the location and time of the offence.

[ 37 ] Crown counsel argues that there is little in the way of prejudice established by the accused and as such her motion should be dismissed. I agree that the evidence of prejudice is limited. But it is more significant than was acknowledged by the Crown. First, I note that unlike speeding tickets which are given to an accused after being stopped by an officer, these Offence Notices arrive in the mail at a date after the offence. By definition, this triggers an investigation by the accused at a date after the offence.

Secondly, I agree that the delay in not a symmetrical one, in that it does not have the potential to affect the prosecution in the same manner as the defence. Given the statutory provisions of The Highway Traffic Act, Crown counsel may introduce virtually the entire case by certificates and documents through a single witness. Unlike the accused, the memory of the officer plays no role in the case. Thirdly, while these are strict liability prosecutions, speeding is not an absolute liability offence.

An accused is entitled to raise a defence to the charge and has the right to do so within a reasonable period of time. [ 38 ] Crown counsel urges the Court not to view this prosecution as “simply a speeding ticket” and suggests that the offence, while straightforward, is still a relatively serious one. I agree. The material filed by Crown counsel includes a pamphlet from the Manitoba Public Insurance Corporation entitled “Put the Brakes on Speeding” which outlines the risks related to speeding and the potential fines imposed.

Although there are no demerits imposed for a Photo Radar ticket, the fines are very significant, and can come close to or even exceed the fines imposed by the Court in criminal

summary conviction prosecutions. If the Court is to impose a sanction, even a financial one, which is designed to bring home the importance of respecting the speed limit, then the process bringing members of the public before the Court must be one which respects the rights of the accused. [ 39 ] From an institutional perspective, I would go further and point out that it is in the area of Highway Traffic Act matters that most individuals would have contact with the court system, and as such is the part of the system which is closest to the public.

As such, and in order to assist in maintaining the public’s confidence in the system as a whole, it is important that these matters be dealt with expeditiously. Conclusion [ 40 ] In Morin , supra, Sopinka J. recognized that some delay in any prosecution is necessary, pointing out the interest of the accused in having matters dealt with in a timely fashion, and the societal interest in seeing an accused dealt with fairly and the “collective interest” in seeing those transgressors brought to trial and dealt with in a timely fashion. [ 41 ] But at what time does the delay become unreasonable?

The answer to the question lies with a balancing of the factors already referenced. To that end I note that the case is one which involved a delay of 18 months from the date of the offence to the trial date. A period of 2.5 months should be allowed for the “inherent time requirements” of a case of this nature, which requires a minimal amount of time for preparation and a minimal amount of actual Court time. The accused neither waived the delay nor contributed in any meaningful way to the delay.

The prejudice to the accused is limited but must be weighed against the other factors, including society’s interest in seeing these matters prosecuted. [ 42 ] Even applying a time frame of eight to ten months to bring matters to trial, the delay in this matter far exceeds that period. Further, and in respect of future prosecutions, it seems reasonable to expect these types of

summary proceedings to be completed within four to six months of a plea being entered. [ 43 ] Taking into account all of the foregoing, I am satisfied that the delay in the prosecution of this matter is unreasonable and represents a violation of Charter s.11(b). The motion of the Accused is granted. I am directing that a Judicial Stay of Proceedings be entered pursuant to Charter s. 24(1). “Original signed by” MARY KATE HARVIE, P.J.