Mississauga (City) v. Ciocan, 2015 ONCJ 293

Citation: Mississauga (City) v. Ciocan , 2015 ONCJ 293 IN THE MATTER OF an application for a stay of proceedings for an infringement of s. 11(

b) of the Charter in respect to a charge laid under the Highway Traffic Act, R.S.O. 1990, c. H.8 Between Corporation of the City of Mississauga prosecutor and Ivona Ciocan defendant Ontario Court of Justice Mississauga, Ontario Quon J. P. Reasons for Judgment Charge: s. 144(18) H.T.A. – “red light - fail to stop” S. 11(

b) Motion argued: January 30, 2015 (ruling on motion reserved). Trial held and completed: May 23, 2014, August 22, 2014, and January 30, 2015.

Judgment rendered: May 28, 2015 Counsel: M. Commisso, municipal prosecutor R. Duncan, legal representative for the defendant Cases Considered or Referred To: Hill v. Toronto (City), [2007] O.J. No. 2232 (O.C.J.), per Libman J. Mississauga (City) v. Lam, [2012] O.J. No. 5594 (O.C.J.), per Quon J.P. R. v. Abrey, 2007 SKQB 213 , [2007] S.J. No. 331 (Sask. Q.B.). R. v. Askov, (SCC), [1990] S.C.J. No. 106, [1990] 2 S.C.R. 1199, 59 C.C.C. (3d) 449 (S.C.C.). R. v. Bidyk, [2003] S.J. No. 558 (Sask. Prov. Ct.). R. v. Bilinski, 2013 ONSC 2824 , [2013] O.J. No. 2984 (S.C.J.O.), per Durno J. R. v.

Bramwell (1996), (BC CA), 106 C.C.C. (3d) 365 (B.C.C.A.). R. v. Byron, 2001 MBCA 81 , [2001] M.J. No. 245, 156 C.C.C. (3d) 312 (M.C.A.). R. v. Cook, (SCC), [1997] S.C.J. No. 22 (S.C.C.). R. v. Dixon, (SCC), [1998] S.C.R. 244, 122 C.C.C. (3d) 1 (S.C.C.). R. v. Ferguson, (ON SC), [2005] O.J. No. 3442 (S.C.J.O.), per Durno J. R. v. Fiddler, 2012 ONSC 2539 , [2012] O.J. No. 2001 (S.C.J.O.), per Fregeau J. R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 (S.C.C.). R. v. Hussain, [2005] O.J. No. 158 (O.C.J.), per Casey J.

R. v. Kalanj, (SCC), [1989] S.C.J. No. 71, [1989] 1 S.C.R. 1594, 48 C.C.C. (3d) 459 (S.C.C.). R. v. Lahiry (2011), 2011 ONSC 6780 , 109 O.R. (3d) 187 (S.C.J.O.), per Code J. R. v. MacDougall, (SCC), [1998] S.C.J. No. 74 (S.C.C.). R. v. Moniz, [1999] O.J. No. 312 (O.C.J.), per Quon J.P. R. v. Morin, (SCC), [1992] S.C.J. No. 25, [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1 (S.C.C.). R. v. Omarzadah, [2004] O.J. No. 2212 (O.C.A.), per Doherty J. R. v. Pinkus, [1999] O.J. No. 5464 (S.C.J.O.), per McKinnon J. R. v. Pioneer Construction Inc., (ON CA), [2006] O.J. No. 1874 (O.C.A.), per Weiler, Rosenberg, and MacPhersonJJ.A.

R. v. Shyshkin, [2007] O.J. No. 1821 (S.C.J.O.), per Hill J. R. v. Stinchcombe, (SCC), [1991] S.C.J. No. 83 (S.C.C.). R. v. Tran, 2012 ONCA 18 , [2012] O.J. No. 83 (O.C.A.), per MacPherson, Simmons and Blair JJ.A. R. v. W. (D.), (SCC), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91 (S.C.C.). R. v. Wilson, [2013] S.J. No. 711 (Sask. C.A.). Statutes, Regulations and Rules Cited: Canadian Charter of Rights and Freedoms, 1982, ss. 11(b), 24(1). Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 144(5), 144(18) and 144(31.2.1). Paralegal Rules of Conduct, rule 5(o).

I. INTRODUCTION [ 1 ] When facing a regulatory charge, some accused persons proceed as quickly as possible in dealing with their charge while others fail to advance their case in a reasonable or expeditious manner. Then there are those who never want their trial to ever begin and will do everything possible to avoid the trial by deliberately delaying the commencement of their trial for as long as possible.

They do this by employing disingenuous tactics for obtaining adjournments or to inconvenience the prosecution’s civilian witnesses who do appear in court on the day of the scheduled trial -- hoping that the inconvenience to the prosecution’s witnesses of taking another day off from work will dissuade them from re-attending to testify on the subsequent trial date – which would then ultimately result in the prosecution having to withdraw the charges against the accused person on that subsequent trial date.

Or, accused persons will utilize the same delaying tactics to construct, and hopefully, obtain a Charter remedy for an infringement of their right to be tried within a reasonable time guaranteed by s. 11(

b) of the Charter. [ 2 ] Such ploys include not actively pursuing or resolving disclosure issues before the trial date, and then asking for an adjournment on the date of the trial claiming incomplete or outstanding disclosure, instead of bringing a proper adjournment application prior to the day of the scheduled trial to obtain the needed disclosure, so as not to inconvenience the prosecution’s civilian witnesses or to cause them to attend at the courthouse needlessly.

Or, the accused person retains legal representation the night before the scheduled trial and then seeks an adjournment on the date of the trial using the excuse that the accused person’s legal representative needs time to prepare for the trial, knowing full well that civilian witnesses would be in attendance for the trial. Or, the accused person does not make any efforts to obtain or make a request in writing for disclosure from the prosecution on the same day on which they attend the courthouse to file their Notice of Intention to Appear for a charge laid under a

Part I Certificate of Offence, but then seeks an adjournment on the date of the trial with the excuse that they need time to request or to obtain disclosure. Or, the accused person does not make a proper adjournment application to adjourn the trial prior to the actual date of the trial when they know they will be out of the country on the date of the trial and had already obtained an airline ticket for their trip weeks earlier, yet they purposely send someone in their stead on the day of the trial to seek an adjournment when there are civilian witnesses in attendance for the trial.

Or, when the accused person’s legal representative insincerely submits and asks the prosecution for irrelevant items of disclosure or insists on obtaining or be provided with copies of manuals for devices when the same copies of the manuals or information for the same devices had already been obtained by the legal representative for those particular devices on many previous occasions, which unquestionably delays the proceeding unnecessarily. [ 3 ] Although a proper balance has to be achieved between an accused person, on one hand, having enough time to adequately prepare or being able to obtain all material and relevant evidence in respect to a charge in order to have a fair trial and to be able to make full answer and defence and society’s desire, on the other hand, to have the accused tried on the merits of the case when the memories of witnesses are still available and fresh, it is these examples of insincere ploys that delay justice and burden the already overcrowded trial dockets, as well as wasting prosecutorial, administrative, enforcement, and judicial resources, and affects every accused’s access to prompt justice and the public’s respect for the administration of justice. [ 4 ] However, for those who do not deliberately drag their feet in commencing their trial, they have a constitutionally guaranteed right to a trial within a reasonable period that comes with a remedy of a stay of proceedings if that right is clearly infringed.

And, while some defendants use the guarantee under s. 11(

b) of the Charter as a protective shield to guard against unreasonable delay in commencing or completing their trial, others rely on it as an offensive weapon or a ploy to further delay the proceedings, or attempt to artfully use it to obtain a stay of proceedings when they themselves had caused or precipitated the delay, which inevitably tarnishes the protection of that particular right. [ 5 ] Now, for this proceeding, Ivona Ciocan, the defendant, had been involved in a collision on August 1, 2012, with another vehicle in an intersection controlled by automatic traffic lights, in which she was subsequently charged for failing to stop for a red light, contrary to s. 144(18) of the Highway Traffic Act , R.S.O. 1990, c.

H.8. However, the defendant contends that she had entered the intersection when she had been facing a green light, despite three prosecution witnesses testifying in the trial that her traffic light had been red when she entered the intersection. [ 6 ] In addition, the defendant has brought a 11(

b) application to have her red light charge stayed on the grounds that her right to be tried within a reasonable time had been infringed, as the defendant had been irremediably prejudiced from having a fair trial as she had been unable to make full answer and defence because the memory of the event for the defendant and for one defence witness had faded due to the unreasonable delay that it had taken to commence or complete the trial. However, unlike 11(

b) Charter applications that are normally brought and argued prior to the commencement of the trial, the 11(

b) application in this proceeding was not heard until after the testimony of the six witnesses had been completed, since the application had not been perfected until after the trial had commenced and the prosecution had closed its case. This exceptional situation came about because on May 23, 2014, which had been the fourth scheduled trial and the date on which the first 11(

b) application had been originally set to be argued prior to the commencement of the trial, the defendant’s legal representatives had not yet perfected the Charter application. This had been due to transcripts for some of the prior court appearances being ordered late and not being available, and therefore, the defendant was not granted an adjournment to perfect the application, since civilian witnesses had now been in attendance for the third time without the trial commencing. The trial

then commenced on May 23, 2014, but was not completed on that day, as there had not been enough court time scheduled that day to hear all the witnesses and complete the trial, since the trial had started 45 minutes late because the defendant’s trial legal representative had not picked up the transcripts until the morning of the trial and had required time to review the transcripts. Subsequently, on July 15, 2014, the defendant’s legal representatives filed a new or second 11(

b) application, which had now been perfected, to be heard on August 22, 2014, on the day on the continuation of the trial. However, it was decided on August 22, that the 11(

b) application would only permitted to be argued at the end of the trial during final arguments, since the trial had already commenced and the prosecution had closed its case on May 23, 2014. In addition, the defence did not proceed with their defence on August 22 nd , as another adjournment was sought and obtained in order that a defence witness could appear to testify, since the defence had not obtained a subpoena for that witness’s appearance. The testimony of the six witnesses was eventually completed on January 30, 2015, after which the 11(

b) application was argued during closing arguments. [ 7 ] For the reasons that follow, the defendant’s 11(

b) application is dismissed, as the defendant’s right to a trial within a reasonable time has not been infringed. And, for the defendant’s charge, the prosecution has met their burden of proving beyond a reasonable doubt that the defendant had committed the offence of failing to stop for a red light contrary to s. 144(18) of the Highway Traffic Act . II.

BACKGROUND [ 8 ] At approximately 8:23 a.m. on August 1, 2012, the defendant, Ivona Ciocan, who had been 37 weeks pregnant, had just dropped her oldest son off at daycare and had been returning home and driving her beige-coloured Honda Civic motor vehicle westbound on Erin Centre Boulevard in the City of Mississauga, when she entered the intersection at Glen Erin Drive and collided with a southbound vehicle driven by Julian Kanarek.

Before arriving at the intersection of Erin Centre Boulevard and Glen Erin Drive, the defendant had said that she had been travelling at approximately 39 k.p.h. and that she could see from about 100 meters away that the traffic light for Glen Erin Drive had been red. Erin Centre Boulevard is a road that runs east and west, while Erin Centre Boulevard is a road that runs north and south. As she approached the intersection, she observed a City of Mississauga transit bus stopped in the curb lane immediately to her right and just east of the intersection.

At about 10 to 15 meters from the stop line, she said she had seen the traffic light for that intersection turn green from red. She then said she accelerated and entered the intersection, and as she approached the southbound lanes for Glen Erin Drive, she said she saw to her right a large black-coloured motor vehicle suddenly approach her vehicle.

At that point, she said she had tried to steer her vehicle toward the eastbound lanes of Erin Centre Boulevard to avoid that southbound vehicle, but unfortunately she could not avoid it and a collision with that southbound vehicle had resulted. [ 9 ] After the police arrived, witnesses who were at that intersection and who were not directly involved in the collision provided statements to Cst. Soos, the Peel Region police officer who had investigated the accident.

Two independent witnesses, Mike Millar and Nicklos Gardanis, provided statements that contradicted the defendant’s version of what had occurred by indicating that the defendant while driving her vehicle westbound on Erin Centre Boulevard had entered the intersection on a red light. Subsequently, the defendant, Ivona Ciocan, was charged and issued a

Part I Certificate of Offence of “failing to stop for a red light”, contrary to s. 144(18) of the Highway Traffic Act , R.S.O. 1990, c. H.8. [ 10 ] To represent her on the red light charge, the defendant then retained a paralegal firm located in the City of Toronto named the “Traffic Ticket Solutions Law Firm”, which is managed by Maria MacBeth (the “Toronto-based paralegal firm”).

A "Notice Of Intention To Appear" was then filed with the court on August 15, 2012, by the defendant or by her legal representative, indicating the defendant’s intention to dispute the charge and that the defendant was being represented by that Toronto-based paralegal firm. Then on September 12, 2012, Court Administration at the Mississauga Provincial Offences courthouse set and notified the parties that the trial for the defendant’s

Part I offence would be held on April 8, 2013. In addition, for the defendant’s trial, the Toronto-based paralegal firm had hired or retained Richard Duncan, a licensed paralegal, to conduct the defendant’s trial (the “trial legal representative”). However, in their division of labour, the Toronto-based paralegal firm had been responsible for obtaining disclosure and witness summonses and in preparing and filing adjournment motions and the 11(

b) application, while Richard Duncan, the trial legal representative, would be only responsible for conducting the trial and for arguing the 11(

b) motion. [ 11 ] However, on April 8, 2013 (the first scheduled trial date), the trial of the red light charge did not commence as scheduled, since the defendant’s trial legal representative, Richard Duncan, had requested an adjournment on two grounds.

For the first ground, Duncan had indicated that some parts of the police officer’s notes were illegible and needed to be typed out, although the prosecution had faxed the disclosure documents to the defendant’s Toronto-based paralegal firm on January 10, 2013, but a formal or written request for typed notes had not been made earlier to the prosecution during those three months before the scheduled trial. In addition, the Toronto-based paralegal firm did not provide the disclosure documents to Richard Duncan, the trial legal representative, until the Friday just before the Monday, April 8, 2013, trial date.

As for the second ground, Adilla Best, one of the witnesses that the defence believed would be favourable to their defence and which they believed would be called by the prosecution, was not in attendance, as the witness did not receive the subpoena or witness summons to attend that had been obtained and sent to her by the police officer who had investigated the accident. However, the police officer had contacted Adilla Best a couple of days before the April 8 th scheduled trial date and had received information that Best could not attend as she could not get time off from work because of the short notice.

In addition, two of the prosecution’s civilian witnesses were in attendance on April 8 th and could have given their testimony on that day. The defence’s adjournment request was then granted and the trial was rescheduled to July 29, 2013 (the second scheduled trial date).

[ 12 ] However, after the adjournment of the first trial date, the defendant’s legal representative of record, Traffic Ticket Solutions Law Firm, contacted Adilla Best on April 18, 2013, about her availability to appear to testify on July 29, 2013. It was learned that Best had her vacation scheduled at that time and would be out of the province on July 29 th and would not be able to attend the trial scheduled on that date. The defence then brought a motion on May 13, 2013, to adjourn the July 29 th trial date.

The defence motion was granted and the trial was then rescheduled to be held on September 13, 2013 (the third scheduled trial date). [ 13 ] Then on September 13, 2013, when the parties appeared for the defendant’s scheduled trial it was learned that the trial had been erroneously scheduled on a day and courtroom that is normally reserved for Ministry of the Environment matters.

And, because there would be 5 to 6 witnesses testifying in the defendant’s trial, the prosecution did not believe that once the Ministry of the Environment had finished with their matters, that there would be sufficient court time left to complete the defendant’s trial. The prosecution then brought a motion to adjourn the trial. Civilian witnesses were also present on that day for both the prosecution and the defence.

However, it was also decided on that day by the presiding justice that a judicial pre-trial could be held later that morning after the Ministry of Environment matters were completed to see if the trial issues could be narrowed or resolved. A judicial pre-trial was then conducted later that day on September 13 th . It was then agreed by the parties that the defendant’s matter would be scheduled to return on October 15, 2013, for a continuation of the judicial pre-trial, so as to allow the parties time to resolve any of their issues.

However, on October 15 th , the parties informed the presiding justice that they could not resolve the defendant’s matter or narrow the triable issues, thereby necessitating that a trial date be scheduled for May 23, 2014 (the fourth scheduled trial date). Prior to the fourth scheduled trial date, the defendant’s Toronto-based paralegal firm then filed a 11(

b) application with the court on April 9, 2014, and gave notice to all required parties that they would be making that Charter application on May 23, 2014. [ 14 ] However, the 11(

b) application was not perfected as transcripts of the proceedings for two of the four prior court appearances of May 13, 2013 and October 15, 2013, had only been ordered on April 9, 2014, and had not been completed and ready for pickup until the defence had been notified on July 23, 2014. As such, the 11(

b) application had not been permitted to be argued or entertained on May 23, 2014, due to the missing transcripts for two of the previous court appearances. The defendant’s trial legal representative then brought an application for an adjournment to perfect the 11(

b) application, but it was not granted due to civilian and police witnesses being present to testify at the trial for the third time. Some of the civilian witnesses had also attended on the first and third scheduled trial dates (the civilian witnesses did not appear on the second scheduled trial date as that date had been adjourned by a defence motion brought on May 13, 2013). As such, the trial finally commenced on May 23, 2014. The prosecution’s four witnesses completed their testimony on May 23 rd , at which time the prosecution closed their case.

However, the trial could not be completed in the half-day of court time that had been set aside for the trial that morning of May 23 rd , as the trial had commenced late that morning due to Richard Duncan, the defendant’s trial legal representative, not having picked up the transcripts until the morning of the trial and needing 20 minutes to review the transcripts.

Those particular transcripts had been ordered on October 25, 2013, and the ordering party had been notified on April 10, 2014, that the transcripts were ready to pick up, which would have provided nearly six weeks for the defence to pick up those transcripts. [ 15 ] After the May 23 rd appearance, the defendant’s legal representatives had filed a new 11(

b) application on July 15, 2014 with the court, notifying all the required parties that the Charter application would be made on August 22, 2014. The defendant’s Toronto-based paralegal firm was also notified on July 23, 2014, that the transcripts for the missing two court appearances were completed and ready to pick up.

The missing transcripts were then filed on the prosecution on August 15, 2014. [ 16 ] However, on the recommencement of the trial on August 22, 2014, the defence sought another adjournment, since Adilla Best, a witness being called by the defence, could not attend as she had a doctor’s appointment on that day. In addition, Richard Duncan, the trial legal representative, had admitted that the defence had not subpoenaed Best to attend for the August 22 nd trial.

Moreover, although it had been suggested to the defence that the court time that had been set aside for the continuation of the trial on August 22 nd could still be utilized by having the defendant testify first, instead of waiting for Adilla Best to testify, the defence did not wish to have the defendant provide her testimony until Adilla Best had first given her testimony. It was also decided on August 22 nd that the 11(

b) application would not be heard until after the testimony of witnesses had been completed, since the trial had already commenced and the prosecution had closed their case. The trial was then adjourned to January 30, 2015. On January 30 th , despite the defence submissions on August 22, 2014 that they wanted Adilla Best to testify before the defendant would testify, the defendant in fact had testified first for the defence, which was then followed by Adilla Best’s testimony. After the witness testimony was completed, the defendant’s 11(

b) application was heard before the closing arguments were made. Judgment was then reserved on both the 11(

b) application and on whether the prosecution had proven that the defendant had committed the red light offence beyond a reasonable doubt, and adjourned to May 28, 2015, for the judgment to be rendered.

Summary of Testimony [ 17 ] In the trial that was held over three days, six witnesses had testified. Four testified for the prosecution and two for the defence.

The witnesses were:

(1) Julian Kanarek , the driver of a motor vehicle southbound on Glen Erin Drive that had collided with the defendant’s motor vehicle;

(2) Mike Millar , a motorist who had been westbound on Erin Centre Boulevard in the curb lane and stopped for a red light at the intersection immediately in front of a Mississauga Transit bus;

(3) Nicklos Gardanis , the driver of the City of Mississauga Transit bus that had been westbound in the curb lane of Erin Centre Boulevard and stopped for a red light behind a motor vehicle that was also stopped for a red light at the intersection;

(4) Cst. Soos , the Peel Region police officer who investigated the accident and who had laid the red light charge against the defendant ;

(5) Ivona Ciocan , the defendant; and

(6) Adilla Best , who had testified for the defence and who had been a motorist that had been eastbound on Erin Centre Boulevard and had been stopped at the intersection for a red light. [ 18 ] In addition, the testimony given at trial would also apply to the s. 11(

b) determination. As such, the following is a

summary of the evidence given by the six witnesses who testified at the trial:

(1) Julian Kanarek, the other driver of the vehicle that collided with the defendant’s vehicle [ 19 ] Julian Kanarek testified that on August 1, 2012, at approximately 8:00 a.m., he had been alone in his Ford Edge SUV motor vehicle that was southbound on Glen Erin Drive in Mississauga, approaching the intersection at Erin Centre Boulevard, which is controlled by traffic lights. [ 20 ] In addition, Kanarek said that on Glen Erin Drive there are two southbound lanes and that he was in the left lane.

In addition, he said he had been going around 50 k.p.h. and that the speed limit for that road is 50 k.p.h. [ 21 ] Moreover, Kanarek said he does not recall any vehicles in front of him and that the intersection was clear. He further explained that there were no vehicles on southbound Glen Erin Drive in front of or beside him, but there may have been vehicles behind him. He also said he did not stop his vehicle before entering the intersection. In addition, he said that he does not recall seeing a vehicle stopped in the eastbound lanes of the intersection.

However, he said he recalls there being a Mississauga Transit bus stopped in the curb lane of westbound Erin Centre Boulevard. [ 22 ] Furthermore, Kanarek said the colour of the traffic light for him was green as he approached the intersection and that it had always been a green light. He also said that he had continued through the intersection and had entered the intersection when the light was green. Then, suddenly, he said there was something in front of him that had come from his left.

He also said that in his peripheral vision, he had seen that it had come from behind the stopped bus and had entered into the intersection and then drove in front of him. He also said that when he saw the car in front of him, he had applied his brakes and steered to the right. However, at that moment he said he did not recall seeing the colour of the traffic light, but that it had been green when he had entered the intersection, and that when he had continued through the intersection he had not checked on the light again.

He also said the other car had not been in the same lane as the bus, but right next to the bus in the center lane as opposed to the left turn lane. In addition, he said that there had been two lanes plus a left turn lane for Erin Centre Boulevard, and that the other car had gone straight through. [ 23 ] Moreover, Kanarek said that he had been one-third to one-quarter of the way into the intersection when he had seen that vehicle. He also said he had applied his brakes and steered right, but the front of his vehicle had hit the other car on its passenger-side rear door.

He then described the other vehicle as being a four-door beige-coloured compact car, which he learned afterwards, had been a Honda Civic. [ 24 ] Furthermore, Kanarek said that after he had collided with the other vehicle, he had bounced off and then rolled a distance to be then facing in the northwest direction in the westbound lanes of Erin Centre Boulevard. He also said his vehicle had bumped the curb on Erin Centre Boulevard, but his airbags did not deploy.

In addition, he said that when the other vehicle in the accident had come to a stop it had been blocking the southbound lanes of Glen Erin Drive. [ 25 ] Kanarek also said he does not recall speaking to the other driver involved in the collision with his vehicle.

He further said he had received a mild to moderate concussion in the collision from his head striking the passenger side window and had received whiplash on the right side of his neck. [ 26 ] Furthermore, Kanarek said that after the collision he had called his wife from his vehicle and that his wife had come to the accident site because their house was only a block away. He then said he had gotten out of his vehicle and sat on the curb. He also said a man, who was a witness, had come over to him and asked if he had been okay. However, he does not recall speaking to a woman, but

he said that his wife had spoken to her. He then explained that the other driver of the vehicle involved in the collision with him had approached him, but his wife had intercepted her and had told her not to speak to him, but to speak to the police officer. In addition, he said that he did not observe the man, who had asked if he had been okay, speaking with the other driver involved in the collision. [ 27 ] In addition, Kanarek said the weather had been clear, sunny, and dry, and that there had been nothing that had hampered the roadway. He also said he did not recall any honking or the screeching of tires.

Moreover, he said he had not been distracted and had been looking at the traffic light as he approached the intersection.

(2) Mike Millar, the motorist who had been stopped first in line at the stop line in the westbound curb lane of Erin Centre Boulevard [ 28 ] Mike Millar testified he had observed the motor vehicle accident that had occurred on August 1, 2012, at approximately 8:45 a.m. He also said at the time he had been the sole occupant of a Nissan 350Z motor vehicle that he had been driving westbound on Erin Centre Boulevard.

In addition, he recalled that he had been stopped for a red light at the intersection of Glen Erin Drive for about 30 seconds in the curb lane, which is the most northerly of the lanes. [ 29 ] Furthermore, Millar said that Erin Centre Boulevard has two through lanes and one left turn lane. He also said he had been the first car that had been stopped at the stop line. [ 30 ] In addition, Millar said there is a high school in that area and that the speed limit is 40 k.p.h. for the school zone there. He also said the road is completely straight and that he had a clear view of the traffic light signals.

Moreover, he said there was a City of Mississauga bus directly behind him, but there had been no one directly stopped beside him to his left. However, he did not recall if there had been a car in the westbound left turn lane. [ 31 ] And, before the accident occurred, Millar said he had looked in his side-view mirror to see what was coming. At that moment, he said the traffic light had been red when he had observed a car approaching in the lane to his left, and based on the that car’s speed he recognized that the car was not going to stop.

However, he said that he did not know the speed of that car nor could he tell whether that car had been slowing down. He also said he had looked back and forth at his side-view mirror a couple of times. He then said he had observed that motor vehicle in the lane to his left go past him through the red light and hit the Ford Edge motor vehicle car that had been going southbound.

In addition, he said that after the car in the lane to his left had gone past him, he had looked up at the light and observed that the traffic light he was facing had been still red when the collision had occurred. [ 32 ] In addition, Millar said he did not hear a horn or the screeching of brakes. [ 33 ] Millar also said he believes that the location of where the defendant’s vehicle and the Ford Edge vehicle had hit each other had been in the most "westerly" southbound lane. [ 34 ] Furthermore, Millar said that the weather had been perfect and a nice day at the time of the collision, and that there had been no issues with the weather.

He also said there had been nothing that would have affected the vision of the roads. [ 35 ] Moreover, after the collision had occurred, Millar said that he had turned right at the intersection and parked his vehicle around the corner, and then ran across the street to the collision site on Glen Erin Drive. He then believes he went to the Ford Edge first to the check on the male driver. He also believes that another woman, which had not been the defendant, had gotten out of her car and had been there as well.

In addition, Millar said the defendant was also there at the intersection and that this other woman had been standing with the defendant. He further said that he believes that the other woman was presently in the courthouse and that she had been in the courthouse with the defendant. [ 36 ] Millar also said he had only brief conversations with the people at the scene and thinks he had spoken briefly with both the defendant and the man that had been hit to see if they were okay.

However, he said he does not recall having a conversation with the other woman who was a witness and who had been standing with the defendant at the accident scene. In addition, he said he did not ask the male driver nor the defendant on what had happened, nor ask that question to that other woman who was a witness and at the scene. He also said he had remained at the scene for the police to arrive.

(3) Nicklos Gardanis, the driver of the City of Mississauga Transit bus that had also been stopped in the westbound curb lane of Erin Centre Boulevard [ 37 ] Nicklos Gardanis testified that between 9:00 to 10:00 a.m. on August 1, 2012, he had observed an accident occur. He also said he had been driving a City of Mississauga Transit bus westbound on Erin Centre Boulevard.

In addition, he described the bus as being a double bus or a 60-foot articulated bus. [ 38 ] Moreover, as part of the defensive driving training that he had received, Gardanis said he had been taught to look around constantly at his surroundings to see what other cars and people were doing. [ 39 ] Gardanis also said that Erin Centre Boulevard has two westbound lanes and that the speed limit there is 50 k.p.h.

He further said he had approached the intersection on that morning and had only stopped in the curb lane at the intersection of Glen Erin Drive and Erin Centre Boulevard for a red light and not for picking up or dropping off passengers at that location, because his route was an express bus and there is no scheduled stop for his bus at that location. [ 40 ] In addition, Gardanis said there are no hills there, and that John Fraser High School is in the area, but is not sure if there are traffic lights in front of the high school.

He also said he drives that route regularly and there are only minor curves there, if any at all.

He also said there was nothing that would have hampered his view of the traffic signals that morning. [ 41 ] Furthermore, Gardanis said he recalled there had been a vehicle that had been stopped in front of his bus that morning at that intersection, but cannot recall how many vehicles had been stopped in front of him. [ 42 ] Gardanis also said that when he looked in his left-side mirror, he had observed a car westbound in the lane next to his lane approach the intersection, and once he realized that the car was not going to stop, he said he cringed in anticipation of the consequence of that act.

He then said he had observed that car drive through the intersection and collide with a southbound vehicle driving on Glen Erin Drive. In addition, he said he had observed that the traffic light had been still red when that westbound car had crossed the stop line and entered the intersection, and that it had still been red when the collision occurred. Moreover, he said he did not see that traffic light turn to any other colour.

He also indicated that no one had told him that the light had been still red when the collision had occurred. [ 43 ] In addition, Gardanis said he did not recall whether the defendant’s motor vehicle had attempted to stop or slow down, nor does he recall the make of the car he observed going through the red light.

He also said he does not recall if there had been a horn noise or the screeching of tires, since it had all happened so fast. [ 44 ] Moreover, Gardanis said that his bus had been situated higher than the car that had been stopped in front of his bus, and that when he is in the driver’s seat of the bus he would be sitting at a height of four feet above the ground.

In addition, he said he had a clear view of the intersection. [ 45 ] Furthermore, Gardanis said the collision between the two vehicles had occurred on the Glen Erin Drive side, but the vehicles from the force of the collision had been pushed further along on Erin Centre Boulevard. Gardanis also said he did not see the two vehicles make any maneuvers before the collision. [ 46 ] In addition, Gardanis said he had reported the collision to his Transit Control on his CB radio and had asked for a detour around the accident scene.

He also said he did not get out of the bus, nor did he speak to anyone at the intersection after the collision. Moreover, he had described the weather at that time as a clear day and that the road conditions had been fine.

(4) Cst. Soos, the investigating officer [ 47 ] Cst. Soos testified he had investigated the accident involving the defendant on August 1, 2012, at the intersection of Glen Erin Drive and Erin Centre Blvd. in the City of Mississauga. He also said he had arrived at the accident scene at 8:28 a.m. on that day. In

addition, he said that other officers had also attended the scene that day, but they had been involved in traffic management, but that it had been possible that they had collected information or details from other individuals. He also said he had provided Officer Gregoire’s notes to the disclosure office. [ 48 ] Furthermore, Cst. Soos had described the roads and the intersection where the accident occurred as being Glen Erin Drive, which has two northbound and two southbound lanes, and Erin Centre Boulevard, which has two eastbound and two westbound lanes.

Moreover, he said the intersection had been controlled by automatic traffic lights for all directions and that the speed limit for both roads is 50 k.p.h. [ 49 ] In addition, Cst. Soos said that during the 31 minutes he had been at the accident scene, he had observed the traffic lights cycle in all four directions and had noted that they had been functioning and in good working order.

He also noted the traffic light sequence at the intersection, so that when the light for east and west traffic was green then the colour of the traffic light for north and south traffic was red, and that when the light had been red for east and west traffic then the light had been green for north and south traffic. Furthermore, he said the amber light between the green and red light sequence had been for a duration of three seconds, and that there had been a full red light in all directions for one to 1.5 seconds before the light would turn green for one of the directions.

However, he said he did not write this down in his notes, but recalls this sequence, since lights at every intersection are all standardized and follow the same pattern or routine, except when it is varied with an advanced green light. He also said there had been nothing about the lights that had caused him any concern. And, for further clarification, he said that when the east-west light had been green then the north-south light would be red, which would then be followed by an amber light, and then followed by a full-red light in all directions before the other direction would open.

In short, he said the sequence of the lights had been green -- to amber -- to red. [ 50 ] Moreover, when he arrived at the accident scene at 8:28 a.m., Cst. Soos said he had observed the two vehicles that had been involved in the collision in the intersection. He also said both vehicles had been situated in the westbound lanes of Erin Centre Boulevard, west of Glen Erin Drive on the northside of the street. He also said the point of impact between the two vehicles had been within the intersection.

He then described the two vehicles as being a blue-coloured Ford Edge motor vehicle and a silver-coloured Honda Civic motor vehicle. He also said there had been heavy damage to both vehicles, and in his opinion, both vehicles had been write- offs. In addition, he said there had been significant damage to the front driver-side corner of the blue-coloured Ford Edge vehicles, especially to the front and the wheel of that vehicle, while the passenger-side of the Honda Civic had been damaged. [ 51 ] In addition, Cst.

Soos said he had observed tow trucks there, as well as noticing that fire and ambulance vehicles had arrived shortly after he had arrived at the scene. He also said he did not note any skid marks on the road. [ 52 ] Cst. Soos also said he had identified everyone who had remained at the scene and had conversations with them. He also said that after these conversations he had been satisfied with who the drivers had been for the two vehicles involved in the collision.

He then said that Ivona Ciocan had been the driver of the Honda Civic motor vehicle while Julian Kanarek had been the driver of the Ford Edge motor vehicle. In addition, Cst. Soos said he had obtained their driver’s licenses and had been satisfied with the identity of the defendant, Ivona Ciocan, whose driver’s license photo had matched her likeness. [ 53 ] Furthermore, Cst. Soos said he had also spoken with Mike Millar and Nicklos Gardanis, individuals that he had determined were witnesses and who had been standing at the scene when he arrived.

In addition, he said the defendant, Ivona Ciocan, had also given him the name and telephone number of another witness named Adilla Best. However, he said that Adilla Best had not been at the scene when he arrived at the scene, but that he had been able to contact and speak with Adilla Best afterwards. [ 54 ] In addition, Cst. Soos said that Julian Kanarek, the driver of the Ford Edge motor vehicle, had complained of having a pain in his head from hitting the window on his door. Moreover, Cst. Soos said that both the defendant and Julian Kanarek had been taken to Credit Valley Hospital by ambulance.

He also said that he had left the accident scene at 8:59 a.m. and had then gone to the hospital to speak to both of them. Furthermore, he said he had given collision report documents to be completed to Julian Kanarek and to the defendant, while they were both at the hospital. [ 55 ] Cst. Soos also said that based on the witness accounts of what had occurred from Mike Millar and Nicklos Gardanis, he had charged the defendant with committing the “red light-fail to stop” offence while the defendant was still at the hospital. In addition, Cst.

Soos had testified that his conversation with Adilla Best did not occur until after he had already charged the defendant, but that the information he had gathered from that conversation with Best did not have any impact on the charge he had laid against the defendant.

(5) Ivona Ciocan, the defendant

[ 56 ] The defendant testified she had been involved in an incident on August 1, 2012. She said it had been the first day of her vacation, which would then be followed by maternity leave, as she was 37 weeks pregnant at the time. However, she said she had not been on any medication.

On that morning, she said she had just dropped her oldest son off at daycare, and had been alone in her car and heading home westbound on Erin Centre Boulevard. [ 57 ] In addition, the defendant said that she had first stopped for a red light at Erin Mills Parkway and that when the light had turned green, she then continued westbound on Erin Centre Boulevard. She then said she had checked her speedometer and had observed that her speed had been 39 k.p.h.

She also said there were no cars in front of her or behind her. [ 58 ] Next, as she drove pass the school on Erin Centre Boulevard, the defendant said she had made sure that she had not been driving above the speed limit. She also said the colour of the traffic light at the school had been green when she passed the school and that she had been going at 39 k.p.h. Also, at that point, she said she could see that the traffic light ahead at Glen Erin Drive was red, which was a distance of about 100 meters from the school.

Furthermore, she said she had been driving in the second lane of two lanes westbound on Erin Centre Boulevard, which was the lane on the left side of the street. She also said Erin Centre Boulevard was a straight road. In addition, she said there is a third lane for vehicles to make left turns at the intersection. [ 59 ] Furthermore, the defendant said that as she approached the intersection she had gone straight though.

In addition, she said that when she had entered the intersection there had been no one to her right nor anyone in front of her. [ 60 ] The defendant also said there had been a bus stopped in the right lane of Erin Centre Boulevard, while she had been in the left lane. Moreover, she said she could see a lady with a white tank top standing by the door of the bus, getting ready to get off. She also said there had been a car behind the bus with its turn signal on; however, she said she did not notice whether there had been a car stopped directly in front of the bus.

In addition, the defendant said she knows there is a bus stop at that location where the bus had been stopped, as she takes the bus and is aware of a bus stop being there. [ 61 ] The defendant also said that it had been a sunny and clear day at the time, and that she had a clear view. In addition, as she approached the intersection, she said she had not been accelerating, but slowing down and travelling at about 10 to 15 k.p.h. when she passed the bus. She then said she had pushed on the brakes to stop her car and had slowed down, she thinks, to about 10 k.p.h.

Then, when she had been about 10 to 15 meters from the intersection, she said she had looked up and had observed that the light for her direction had just turned green from red. [ 62 ] Moreover, to clarify her earlier testimony, the defendant said she been slowing down for the red light, but when she had looked up, she had observed that her light had changed to green when she had been about 10 to 15 meters from the intersection. She then said she took her foot off the brakes and had put her foot on the gas and accelerated to a speed of 20 k.p.h.

Then, she said she had looked to her left and had observed that there were no cars, except for an older dark green-coloured car turning right. In addition, she said she had checked the bus and then had checked the intersection, first to the left and then to the right, to see if there were any cars coming towards her. She also said that as she passed the bus, she observed that the bus had not been moving but had been stopped, so she said that she did check on the bus again.

She then said she drove into the intersection while the light had been green and that when she was in the middle of the intersection she had suddenly observed to her right a big black car coming real fast, and in a fraction of a second, she had realized that she was going to be hit. She also said she had noticed a pole in the middle, and as she was pregnant, she had decided in that split second to steer her car into the left lanes, as there were no cars in the left lane.

Moreover, she said that she had steered her car a little bit so that it would not hit the pole, but she was then hit and the airbags in her car had been deployed. She then said she felt smoke in her car, which she thinks had been from the airbags being deployed. Then, she said she had braked fast and had stopped her vehicle in the lanes reserved for cars going in the opposite direction on Erin Centre Boulevard. She then said put her vehicle into the park mode. [ 63 ] Furthermore, the defendant said that her vehicle had been hit on the passenger-side by the other vehicle.

She also said that when she had first seen the black vehicle it had been going southbound, and had come from the north and going south, and had already been in the intersection. In addition, she said that before the collision had occurred, she had crossed over two lanes, and that the other driver had been in the farthest lane of two northbound lanes, and that she had been hit in the first lane southbound. [ 64 ] After her car had stopped, the defendant said she then got out of her car. She then said she had observed that the black-coloured SUV, which had hit her vehicle, had been turned around the other way.

In addition, she said that the location of where she had stopped her car had been situated next to a silver car that had stopped just into the intersection. Then, the defendant said a lady had come out of that silver car and then came to the defendant and had asked if the defendant had been okay. Moreover, the defendant said that the lady, whose name was Adilla Best, had offered to be a witness, and then gave the defendant a piece of paper because the lady had to leave the area in order to get to work. In addition, the defendant said she did not discuss or say anything about the traffic light with Adilla Best.

However, because the defendant’s insurance company could not contact Adilla Best, the defendant said she had called Adilla Best herself and then said that Best had given her a different telephone number. However, the defendant said she does not recall discussing the accident with Best and that Best had only asked about her baby. [ 65 ] In addition, the defendant said that a gentleman had also come over to her and had started arguing with her. [ 66 ] The defendant also said that a tow truck operator that had been going in the opposite direction had stopped and had informed her that 9-1-1 had been contacted.

Then, she said she believes that two police cars had arrived. Furthermore, the defendant said she had also given information to the police. She also said that one police officer had come over to her and that the defendant had provided her driver’s license and her phone number to the officer. In addition, the defendant said she had also given the officer the name of the witness named Adilla Best.

Then the defendant said the police officer had provided her with a cellphone so she could call her husband. [ 67 ] The defendant also said the police officer had provided her and the other driver with an accident report document. [ 68 ] Moreover, the defendant said that firetrucks had also arrived and that she had been asked by fire personnel if she had been okay. She also said she had been advised to go to the hospital and an ambulance had arrived soon after.

In addition, she said the other driver had also been in the ambulance with her and that he had been speaking to the paramedic. [ 69 ] When the ambulance arrived at the hospital, the defendant said she had been placed in a wheelchair, but that the other driver had declined the use of a wheelchair. Then at the hospital, she said her unborn baby had been monitored and it had been determined that the baby had been okay. [ 70 ] The defendant also said she had been given the red light ticket at 11:00 o’clock by the police officer, who she had earlier given her driver’s license and the name of the witness, Adilla Best.

She also said the police officer had apologized for giving her the ticket. Moreover, she said the police officer had not asked her any questions and had not asked her what had happened, but only asked about the unborn baby. [ 71 ] Also, as part of her narrative, the defendant said that it had been only the police officer and herself in a room at the hospital and that the officer had tried to contact the witness Adilla Best, but the officer had not been successful in reaching Adilla Best at that time.

The defendant also said the officer had decided to give the defendant a ticket based on speaking with the bus driver and the other driver, and then had advised the defendant what to do next with the ticket. In addition, the defendant said the police officer had put the defendant’s speed down as 60 k.p.h., even though the officer had not been there. Moreover, the defendant said the speed limit for both streets of the intersection is 50 k.p.h. [ 72 ] Furthermore, the defendant said it had been a traumatic and emotional time for her.

She also said that for three or four weeks after the accident she had bad chest and knee pains.

(6) Adilla Best, the motorist who had been stopped in the eastbound lanes of Erin Centre Boulevard on the westside of the intersection [ 73 ] Adilla Best testified that on the day of the accident, it had been August in the summertime, and that she had just dropped her son off before 8:30 a.m. at the Erin Community Centre located at Erin Centre Boulevard and Glen Erin Drive. She then said that after dropping off her son she was driving eastbound on Erin Centre Boulevard.

She also said that her memory and her recollection of the events is from three years ago. [ 74 ] Best also said that the traffic light for her had been red when she had stopped her motor vehicle at the intersection of Erin Centre Boulevard and Glen Erin Drive. However, Best said that she had been looking at her cellphone when she had been stopped at the intersection, and that when she had looked up she had observed the traffic light for her had been green, but that she did not move her vehicle for an instant and does not know why she did not move her vehicle right away, except for being cautious.

She then said she observed a black-coloured SUV spiraling in front of her and then go over to the other side. She also said that beside her had been a white or beige-coloured car coming towards her. In addition, she said she was in shock.

[ 75 ] Moreover, Best said that when she was stopped at the intersection for a red light and looking at her cellphone, she did not notice anything around her before the collision. [ 76 ] Furthermore, Best said that she had heard the cars colliding, which had been a big noise. She also said that it had been seconds from hearing the bang to seeing the car spiraling. [ 77 ] When asked if she had observed any vehicles westbound on Erin Centre Boulevard, Best said she thinks she had observed a bus there, but that had been all she remembers.

In addition, she said that she cannot testify to seeing the defendant’s vehicle travelling westbound on Erin Centre Boulevard, but had been in shock when she did observe the defendant in the defendant’s vehicle next to her own vehicle. Best also said she had noticed that the defendant had been really pregnant. Moreover, Best said that she does not know where the defendant had come from and had only observed the defendant and the defendant’s car beside Best’s motor vehicle after the collision had occurred.

In addition, Best does not know how long it had been between the traffic light turning green and to observing the defendant’s vehicle beside her own vehicle. [ 78 ] Moreover, Best said that she does not recall speaking with a police officer that day, but did speak to a police office by telephone and had told the police officer what she had observed. However, Best said that she cannot recall today what she had said to the police officer, but whatever she had said to the officer had been the truth and that she had only told him what she had observed that day, which had been limited as to what she had seen.

She also recalls speaking to the police officer by telephone closer to the date of the collision and not a month later. [ 79 ] In addition, when asked if she had heard the crash before or after she had observed her traffic light turn green, Best replied that she could not remember and that she had been in shock at that time. She also said that she did not see the colour of the traffic light for westbound traffic. [ 80 ] Best also said she does not recall if anyone else had approached her, but recalls giving the defendant her name and telephone number, after which she had left the area. III.

THE CHARGE [ 81 ] After the collision, the defendant had been charged with committing the following Highway Traffic Act offence issued under a

Part I Certificate of Offence: On the day of August 1, 2012, at 8:23 a.m. Ivona M. Ciocan of [address removed], Mississauga, ON at Erin Centre Blvd. and Glen Erin Drive, in the City of Mississauga Did commit the offence of: Red Light – Fail To Stop Contrary to: Highway Traffic Act , Sect. 144(18) IV. APPLICABLE LAW [ 82 ] The right to a trial within a reasonable time is guaranteed and contained in s.11(

b) of the Charter , which provides that: 11. Any person charged with an offence has the right

… (

b) to be tried within a reasonable time; [ 83 ] Moreover, if there is an infringement of s. 11(b), then s. 24(1) of the Charter provides the trial judge with the jurisdiction to grant a remedy, which normally is a stay of proceedings: 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [ 84 ] In addition, for the offence of “red light - fail to stop”, s. 144(18) of the Highway Traffic Act , R.S.O. 1990, c. H.8, provides that: Red light 144

(18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown. [ 85 ] Furthermore, under s. 144(5) of the Highway Traffic Act , motorists facing a red light are required to stop at the stop line if there is one painted on the road surface: Where to stop – intersection 144

(5) A driver who is directed by a traffic control signal erected at an intersection to stop his or her vehicle shall stop, (

a) at the sign or roadway marking indicating where the stop is to be made; (

b) if there is no sign or marking, immediately before entering the nearest crosswalk; or (

c) if there is no sign, marking or crosswalk, immediately before entering the intersection. [ 86 ] And, the fine for being convicted of committing the offence under s. 144(18) is set out in s. 144(31.2.1) of the Highway Traffic Act and provides for a minimum fine of $200 and a maximum fine of $1000: Penalty for disobeying red light 144(31.2.1) Every person who contravenes subsection (18) is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $1,000. [ 87 ] However, the fine of $260.00 with the total payable amount set out as $325.00 on the Notice of Offence that had been issued to the defendant is the out-of-court set fine that is only available to the defendant if she had not elected to have a trial of the charge and had wanted to dispose of her charge without a trial by paying that set fine.

V. ANALYSIS

[88] In this proceeding, two main questions need to be decided. They are whether the defendant’s right to be tried within a reasonabletime guaranteed under s. 11(

b) of the Charter has been infringed, and if has not been, then has the prosecution proven that the defendanthas committed the red light charge laid under s. 144(18) of the Highway Traffic Act beyond a reasonable doubt. [89] For the 11(

b) application, the defendant has the burden to prove on a balance of probabilities that her constitutionally guaranteedright to a speedy trial had been violated before the usual remedy of a stay of proceedings can be granted under s. 24(1) of the Charter. Inher application, the defendant contends that the unreasonable delay in being tried on her red light charge has caused both the defendant’sand her witness Adilla Best’s memory to fade, and therefore, the defendant’s right to a fair trial has been irremediably prejudiced as shewould be unable to make full answer and defence.

On the other hand, the prosecution contends that the defendant has failed to prove ona balance of probabilities that her right to be tried within a reasonable time has been infringed, since any prejudice resulting from anydelay had been the result of the defendant’s actions in obtaining adjournments of the trial, due to not being ready to proceed with thetrial, in not being diligent in obtaining transcripts for the 11(

b) application, and for the lack of diligence in resolving any disclosureissues raised by the defence in a timely fashion, and for the lack of coordination between the defendant’s Toronto-based paralegal firmand Richard Duncan, a licensed paralegal, who had been retained by the Toronto paralegal firm to conduct the trial. [90] And, on the second question of whether the prosecution has proven that the defendant had failed to stop for a red light beyond areasonable doubt, the defendant contends that her testimony has been credible that she had entered the intersection on a green light, andas such, she should be acquitted of the charge.

However, the prosecution submits that the prosecution has proven that the defendant hadentered the intersection on a stale red light beyond a reasonable doubt, based on the unshaken evidence of the two independent witnesseswho were situated at the intersection. [91] In dealing with these two questions, the 11(

b) application will be decided first, considering that if the defendant has establishedon a balance of probabilities there has been unreasonable delay in commencing and completing her trial, then the remedy of a stay ofproceedings will have to be granted and the determination of whether the prosecution has proven that the defendant had committed thered light offence beyond a reasonable doubt will not have to be decided. [92] On the other hand, if the defendant’s right to a speedy trial guaranteed under s. 11(

b) has not been infringed, then it will have tobe decided whether the prosecution has met their burden in proving that the defendant has committed the offence of failing to stop for ared light beyond a reasonable doubt. (

A) HAS THE DEFENDANT PROVEN ON A BALANCE OF PROBABILITIES THAT HER RIGHT TO BE TRIED WITHINA REASONABLE TIME GUARANTEED BY S. 11(

B) HAS BEEN INFRINGED?

(1) The Procedure For Proceeding With An 11(

B) Application After The Trial Of The Charge Had Commenced And Where TheProsecution Had Closed Its Case [93] Normally, a motion for a stay of proceedings for an infringement of s. 11(

b) is brought prior to the commencement of the trial sothat the trial justice may rule on the application before the trial actually commences: R. v. Byron, 2001 MBCA 81 , [2001] M.J.No. 245, 156 C.C.C. (3d) 312 (M.C.A.). In addition, the Court of Appeal for Ontario in R. v. Pioneer Construction Inc., (ON CA), [2006] O.J. No. 1874, at para. 27, has also confirmed that a motion for a judicial stay of proceedings for a s. 11(b)breach is, absent unusual circumstances, ordinarily argued before trial: A motion to stay proceedings for a s. 11(

b) breach is ordinarily argued before trial absent unusual circumstances, … [94] However, in this particular proceeding, the defendant’s trial legal representative had not been allowed to proceed with arguingthe 11(

b) application prior to the trial commencing on May 23, 2014, as the application had not been perfected due to transcripts of twocourt appearances being ordered late by the defence and not being available for the application. And, as civilian and police witnesseswere present to testify in the trial on that day when the 11(

b) application was supposed to be argued, the defence’s request for anadjournment to obtain the two missing transcripts was not granted, since some of the prosecution’s civilian witnesses had alreadyattended on two prior occasions to testify at the defendant’s trial, which had not gone ahead, and that everyone had been there to conductthe trial. Consequently, the prosecution called four witnesses to prove the red light charge and after their testimony had been completed,the prosecution closed their case.

However, there had not been enough court time remaining that morning for the scheduled half-daytrial for the defence witnesses to give their testimony, as the trial had started 45 minutes late that morning due to Richard Duncan, thedefendant’s trial legal representative, who had been retained to conduct the trial, not picking up the transcripts for the previous court

appearances until that morning, although they had been available and ready for pickup as of April 10, 2014, and had also required someextra time that morning to review the transcripts. [95] Then subsequent to the May 23rd trial date, the defendant’s legal representatives were able to obtain the missing transcripts andthen filed a new 11(

b) application on the prosecution on July 15, 2014, prior to the continuation of the trial that had been scheduled forAugust 22, 2014. However, as the trial had already commenced and the prosecution had already closed its case, it was decided on August 22nd that the 11(

b) application would be only heard after the trial was completed. [96] Moreover, the decision to hear the 11(

b) application at the end of the trial, after the trial had already commenced and theprosecution had closed its case, is at the discretion of the trial justice. This discretion to hear the Charter application at the end of thetrial has been confirmed and recognized by the Supreme Court of Canada and several provincial Appeal Courts, including theSaskatchewan Court of Appeal in R. v. Wilson, [2013] S.J. No. 711 (Sask.

C.A.), which had held, at paras. 21 and 22, that there is no setprocedure for the determination of Charter violations and relevant remedies, and that the determination of the appropriate procedure iswithin the discretion of the trial judge, and that deference will be accorded when the discretion is properly exercised. Moreover, theSaskatchewan Court of Appeal also acknowledged that there would be situations where a Charter breach needs to be dealt withimmediately, while there other situations in which redress could wait until matters are adjudicated at trial [emphasis is mine below].

Finally, although not in specific reference to s. 11(b), see this Court's decision in R. v. Salisbury, 2012 SKCA 32, 385 Sask. R. 322, whereLane J.A. said: [14] It is necessary for the Court to simply clarify there is no set procedure for the determination of Charter violations and relevantremedies. The appropriate procedure and process will depend on the particular circumstances of the case taking into account all of therelevant factors. There will be situations where a Charter breach needs to be dealt with immediately and in other situations redress canwait until matters are adjudicated at trial.

There are no hard and fast rules, nor would it be possible to set such rules. The determination ofthe appropriate procedure is within the discretion of the trial judge and, assuming the discretion is properly exercised, deference will beaccorded. It serves no purpose to restate what Lane J.A. said very clearly in R. v. Salisbury; which is to say that, in the result, while there mayhave been reason to determine Mr.

Wilson's stay application before trial, the trial judge's decision to hold the matter in abeyance untilthe conclusion of the trial was within his discretion and is to be accorded the deference which the appeal judge properly gave it (atpara. 30). In sum, I find no reversible error in the appeal judge's decision in this respect. [97] Ergo, because of the particular and unusual circumstances of this case in which the 11(

b) application was not perfected until afterthe trial had already commenced, and in which witness testimony had already been heard and the prosecution had already closed its case,it had been decided that the 11(

b) application would not be heard until after all the witnesses had given their testimony and to be doneduring the closing arguments.

(2) The Framework For Analyzing And Determining Whether There Has Been Unreasonable Delay [98] In clarifying their prior decision in R. v. Askov, (SCC), [1990] S.C.J. No. 106, Justice Sopinka writing for themajority of the Supreme Court in R. v. Morin, (SCC), [1992] S.C.J. No. 25, stated at paras. 26 to 30, that the primarypurpose of s. 11(

b) is to protect the individual’s right to security of the person, right to liberty, and the right to a fair trial. In addition, heconfirmed that s. 11(

b) also protects the societal interest in having trials held promptly and in having persons who transgress the law bebrought to trial [emphasis is mine below]: The primary purpose of s. 11(

b) is the protection of the individual rights of accused. A secondary interest of society as a whole has,however, been recognized by this court. I will address each of those interests and their interaction. The individual rights which the

section seeks to protect are: (1) the right to security of the person; (2) the right to liberty, and (3) theright to a fair trial. The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal

proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trialincarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take placewhile evidence is available and fresh. The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that theleast fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy theconfidence of the public.

As observed by Martin J.A. in R. v. Beason (1983), (ON CA), 36 C.R. (3d) 73 (Ont. C.A.):"Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a wholeand, indeed, to the ultimate benefit of the accused..." (p. 96). In some cases, however, the accused has no interest in an early trial andsociety's interest will not parallel that of the accused. There is, as well, a societal interest that is by its very nature adverse to the interests of the accused.

In Conway, a majority of this Courtrecognized that the interests of the accused must be balanced by the interests of society in law enforcement.

This theme was picked up inAskov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trialand dealt with according to the law" (pp. 1219-20). … [99] In addition, at para. 30 in Morin, Sopinka J. recognized that as the seriousness of the offence increases so would the societaldemand that the accused be brought to trial: As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. [100] Furthermore, Sopinka J., at para. 31 in Morin, had outlined the four factors to be considered in determining whether there hasbeen unreasonable delay.

They are: 1) the length of the delay, 2) waiver of time periods, 3) explanation 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 [101] Also, in describing the general approach for determining whether the right to be tried within a reasonable time had been infringed,Sopinka J. held at paras. 31 and 32 in Morin, that the determination should not be based on the application of a mathematical oradministrative formula, but rather by a judicial determination which balances the interests for which s. 11(

b) is designed to protectagainst the factors which either inevitably lead to delay or are otherwise the cause of the delay. He further clarified that this balancing todetermine if the length of the delay is unreasonable requires examining the length of the delay minus any period of delay waived by theaccused and then evaluating that remaining period of delay in respect to the other factors of explanation for the delay, prejudice to theaccused, and the interests s. 11(

b) seeks to protect [emphasis is mine below]: 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 againstfactors which either inevitably lead to delay or are otherwise the cause of delay. … The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the otherfactors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, accountmust be taken of the interests which s. 11(

b) is designed to protect. Leaving aside the question of delay on appeal, the period to bescrutinized is the time elapsed from the date of the charge to the end of the trial. See R. v. Kalanj, (SCC), [1989] 1S.C.R. 1594. The length of this period may be shortened by subtracting periods of delay that have been waived. It must then bedetermined whether this period is unreasonable having regard to the interests s. 11(

b) seeks to protect, the explanation for the delay andthe prejudice to the accused. [102] In addition, at paras. 87 and 88 in Morin, McLachlin J. (as she was then), and in which Gonthier J. concurred, emphasized that thejudicial task of deciding whether proceedings against an accused should be stayed in a s. 11(

b) inquiry for unreasonable delay is toultimately balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest inprompt adjudication [emphasis is mine below]: The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeingthat persons charged with offences are brought to trial against the accused's interest in prompt adjudication.

In the final analysis thejudge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest ofsociety in bringing the accused to trial. The factors to be considered include the length of the delay, any waiver by the accused of the delay, the reasons for the delay andprejudice to the accused. But simply listing factors does not resolve the dilemma of a trial judge faced with an application for a stay ongrounds of delay. What is important is how those factors interact and what weight is to be accorded to each.

In this connection, we mustremind ourselves that the best test will be relatively easy to apply; otherwise, stay applications themselves will contribute to the alreadyheavy load on trial judges and compound the problem of delay. [103] Furthermore, in R. v. Lahiry (2011), 2011 ONSC 6780 , 109 O.R. (3d) 187 (S.C.J.O.), Code J. at paras. 3 to 10, clearlyexplains the analytical steps described in Morin, that a trial justice has to undertake in deciding whether the 11(

b) application should begranted or dismissed [emphasis is mine below]: It is now well known that the framework for s. 11(

b) motions requires the court to analyze four distinct factors: the overall length ofdelay from the laying of charges until the trial concludes; waiver of any individual time periods; the reasons for the various periods ofdelay; and prejudice to the particular interests of the accused protected by s. 11(b). See R. v. Smith, (SCC), [1989] 2S.C.R. 1120, [1989] S.C.J. No. 119, 52 C.C.C. (3d) 97; R. v. Askov (1990), (SCC), 75 O.R. (2d) 673, [1990] 2 S.C.R.1199, [1990] S.C.J. No. 106, 59 C.C.C. (3d) 449; R. v. Morin, supra.

Having made findings about each of these four factors, the final balancing stage of analysis requires consideration of the societalinterest in a trial on the merits. See R. v. Morin, supra, at pp. 12-13 C.C.C.; R. v. Seegmiller, (ON CA), [2004] O.J.No. 5004, 191 C.C.C. (3d) 347 (C.A.), at paras. 21-25; R. v. Qureshi, (ON CA), [2004] O.J. No. 4711, 190 C.C.C.(3d) 453 (C.A.), at para. 41. The first factor, concerning the length of overall delay, is simply a mechanism for weeding out frivolous applications. It is referred to as"the triggering mechanism or threshold determination of the excessiveness of the delay".

It is only necessary to go on and consider theother three factors if the overall period of delay "is of sufficient length to raise an issue as to its reasonableness". See R. v. Askov, supra,at p. 681 O.R., pp. 1209-10 S.C.R., p. 466 C.C.C.; [page191] R. v. Morin, supra, at p. 789 S.C.R., p. 14 C.C.C. The second factor, waiver of time periods, can be either express or implied but it "must be clear and unequivocal" and made with "fullknowledge of the rights the procedure was enacted to protect". When counsel expressly states, on the record, that s. 11(

b) is waived forthe period of an adjournment, there is little difficulty in applying this factor. However, a waiver can also be implied, for example, fromconsent to a period of delay where "a choice has been made between available options" and "the actions of the accused amounted to an

agreement to the delay" rather than "mere acquiescence in the inevitable". Once a waiver has been found, that period of delay is simplyremoved from the s. 11(

b) analysis and the overall delay is shortened. See R. v. Askov, supra, at p. 674 O.R., p. 1247 S.C.R., pp. 481-82and 494-95 C.C.C.; R. v. Morin, supra, at p. 790 S.C.R., pp. 13-15 C.C.C. The third factor, reasons for delay, can be the most important and also the most difficult of the four factors in some cases. It does notinvolve findings of fault, as there can be good or necessary reasons for delay. This factor simply requires an objective analysis of eachperiod of delay in order to determine its cause.

The five traditional causes are: the inherent time requirements of the case; any actions ofthe defence; any actions of the Crown; limits on institutional resources; and other miscellaneous causes, such as judicial delays. Carefulanalysis of the transcripts of each date where the proceedings were delayed is critically important to this factor. Having objectivelydetermined the cause of each period of delay, based on the transcripts and any other relevant evidence, this factor then assigns a weightto that period.

Some delays are said to "weigh against the Crown", some delays are said to "weigh against the defence" and some delaysare said to be "neutral". Needless to say, delays caused by the accused's own actions "will justify" an otherwise unreasonable period ofdelay because the accused invariably seeks some benefit from such delays, such as additional time to prepare, to retain counsel, to bringsome collateral proceedings or to try to resolve the case. On the other hand, delays caused by the Crown or by inadequate resources"cannot be relied upon . . . to explain away delay that is otherwise unreasonable".

Finally, delay due to the inherent requirements of thecase "is neutral and does not count against the Crown or the accused". See R. v. Askov, supra, pp. 477-81 and 483 C.C.C.; R. v. Morin,supra, at p. 794 S.C.R., pp. 16-23 C.C.C.; R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45, [1998] S.C.J. No. 74, 128C.C.C. (3d) 483, at p. 500 C.C.C. [page192] The fourth factor is prejudice to those interests of the accused that s. 11(

b) seeks to protect, namely, liberty, security of the person andfair trial. Prejudice to one or more of these interests can be inferred, without e

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