R. v. Malcolm, 2013 ONCJ 86

Court File No. 4862 999 00 5900307A-00 Citation: R. v. Malcolm , 2013 ONCJ 86 ONTARIO COURT OF JUSTICE Toronto Region In the Matter of the Provincial Offences Act , R.S.O. 1990, c. P. 33 B E T W E E N: Her Majesty The Queen v. Nicolette Malcolm Interim Decision on Charter Motion Before: Her Worship Mary A. Ross Hendriks, Justice of the Peace Appearances: Mr. J. DeFalco, Prosecutor, City of Toronto Mr. V. Manoukian, Representative for the Accused Ms. N. Malcolm, Defendant, in Person Heard: December 18, 2012 Decision: February 14, 2013 INTRODUCTION: [ 1 ] The accused, Nicolette Malcolm, was charged under

Part I of the Provincial Offences Act , [1] (the “ POA ”), on November 28, 2011, with “Pedestrian, Fail to Use Cross-Walk,” contrary to section 144(12) of the Highway Traffic Act , [2] as amended (the “ HTA ”). [ 2 ] Prior to entering a plea on December 18, 2012, her representative, Mr. Manoukian, brought a motion under sections 11(

b) and 11(

d) of the Canadian Charter of Rights and Freedoms [3] (the “ Charter ”), seeking a stay of proceedings, pursuant to section 24(1) of the Charter . [ 3 ] The Prosecutor opposes this motion seeking a stay of proceedings. Mr. Manoukian referred to eleven cases in his Motion Record and Factum , and provided the court with copies of three of them, as well as a transcript from October 15, 2012. [4] The Prosecutor did not file any written response or any case law. Both parties made lengthy oral arguments on December 18, 2012. [ 4 ] December 18, 2012 was the second scheduled trial date, which was set for a half-day.

This date was meant to include the hearing of this Charter motion, and the trial itself, which included an interpreter. However, proceedings on December 18, 2012 commenced more than one hour late, because of Ms. Malcolm's delay in arriving at court. As a result, another date was selected for the return of this Interim Decision, and trial, being February 14, 2013, for a half-day. ISSUES: [ 5 ] The following issues are relevant in this motion: (

a) Has Ms. Malcolm’s right to be tried within a reasonable time been infringed pursuant to sections 11(

b) of the Charter ?

(

b) If the answer is yes, has she suffered actual prejudice? (

c) If the answer is yes to both questions, what is the appropriate remedy? DECISION: [6] The motion is granted. The accused’s right to be tried within a reasonable time has been infringed within the meaning of theCharter. The matter is hereby stayed. ANALYSIS: The Nature of the Charge: [7] Section 144(22) of the HTA provides: Pedestrian crossing – Where portions of a roadway are marked for pedestrian use, no pedestrian shall cross the roadway except within aportion so marked. [8] This charge is governed by

Part I of the POA. The Chronology of Events: [9] The following is a chronology of key events in this case: (

a) The Certificate of Offence is dated November 28, 2011; (

b) She filed a Notice of Intention to Appear on December 1, 2011; (

c) The City of Toronto sent out a Notice of Trial, dated April 3, 2012, for a trial date of October 15, 2012; (

d) The first trial date, October 15, 2012. was adjourned on consent of both parties, in order to

schedule a Judicial Pre-Trial (“JPT”); (

e) On November 21, 2012, a JPT was held; (

f) On November 25, 2012, this

section 11(

b) Motion was filed; (

g) On December 13, 2012, the matter returned “to be spoken to” subsequent to the JPT; (

h) December 18, 2012 was the second scheduled date for this motion and the trial. The defendant was an hour late for court and only themotion was heard; and (

i) The matter returns today, February 14, 2013, for the delivery of this Interim Decision and possible trial. [10] Mr. Manoukian argues that the total delay from November 28, 2011 to December 18, 2012 is 12 months and 20 days, which hesubmits is prima facie unreasonable. [11] Moreover, since the first trial date was adjourned to allow for the JPT, which is mandatory for lengthy, accident-related

Part Imatters, he submits that the delay that ensued should be characterized as institutional delay, rather than as inherent delay, noting thetension in the case law in this regard. He argues that the court system benefits more than the defendant from holding a JPT. See: R. v.C.R.G., (ON CA), but see: R. v.

Tran, 2012 ONCA 18 . [12] The Prosecutor submits that the time related to the JPT should be characterized as neutral, and further, that the transcript of October15, 2012, indicates that the prior representative agreed to the JPT, noting that he had said that it would provide a forum “where maybewe can iron out some of the facts of this case and make a determination as to how long this case may take.” [13] Mr. Manoukian submitted that even if the court determines that the time for the JPT is inherent and neutral, and deducts the 36 daysrelated to it, that 11 months is still too long, since the time frame for a

Part I offence should be at the low end of 8 to 10 months. [14] Further, Mr. Manoukian argued that while Ms. Malcolm filed her Notice of Intention to Appear within three days, it took the City ofToronto four months to send out a Notice of Trial. Testimony of Ms. Malcolm: [15] Mr. Manoukian called upon his client to testify with respect to the issue of prejudice. [16] She testified in chief that she felt very frustrated with waiting for her trial.

She said that it felt like “an open wound taking a while toheal.” Because this matter lingers on, she said that it is “still fresh” to her. [17] During her cross-examination, she conceded that she feels stressed and frustrated by her accident, not being back at work, and thefact that she was charged by the police. She also testified that she feels stressed by the length of her trial period. [18] Mr.

Manoukian submitted that her testimony that the delay felt like “an open wound” was both eloquent, and evidence of actualprejudice, since she was the only one injured in the accident, when weighing her interest versus society's interest in having this matterproceed to trial.

THE LAW: The Charter: [19]

Section 11 of the Charter provides, inter alia: Any person charged with an offence has the right (

b) to be tried within a reasonable time; ... (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. [20] Section 24(1) of the Charter states: Anyone whose rights, as guaranteed by the Canadian Charter of Rights and Freedoms, have been infringed or denied may apply to aCourt of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. The Analytical Framework: [21] According to the Court of Appeal, the analytical framework for an application for a stay under

section 11(

b) of the Charter requiresthe court to consider: (

a) the overall length of the delay between the laying of the charge and the end of the trial; (

b) whether the accusedhas waived any of the delay; (c( the reasons for the delay; and (

d) prejudice to the accused. See: R. v. Tran, 2012 ONCA 18 , atparagraph 20. [22] Once these four factors have been assessed, the court must determine whether the length of the delay is unreasonable having regardto the interests of the accused and the societal interests that

section 11(

b) seeks to protect, the explanation for the delay, and the prejudiceto the accused. See: R. v. Tran, supra, at para. 24, relying on R. v. Morin, (SCC), [1992] 1 S.C.R. 771 (S.C.C.) at pp.786-803. [23] Although

section 11(

d) was also submitted as a ground for this motion, since the jurisprudence and the argument all relate to section11(b), I find that it is not necessary to analyze this ground. [24] The overall delay between November 28, 2011 to the date of this Interim Decision is 12 months and 88 days. According to theCourt of Appeal, the “constitutional clock” does not stop at the time of the motion, but runs until completion of the trial, which ispresumably today's date, if not a date subsequent to today's date. See: R. v.

Gordon, 2012 ONCA 533 , at paragraph 1. [25] It is settled law that any waiver of time periods can be express or implied, but it “must be clear and unequivocal” and such waivermust be made with the “full knowledge of the rights the procedure was enacted to protect.” See: R. v. Lahiry, at paragraph 6, citing R. v.Askov, (SCC), (1990), 59 C.C.C. (3d) 449 at pp. 481 to 482, and R. v.

Morin, (SCC), (1992) 71 C.C.C.(3d) at pp. 13-15. [26] It is debatable whether her prior representative intentionally waived the time required for the JPT, based on his remarks in thetranscript of October 15, 2012, or whether he was simply being polite to the court. Notably, the POA was amended to include section45.1(1) to permit JPTs, so that the court can control its own process. The established criteria set by the POA court in the Toronto Regionfor JPTs include

Part I accident matters, that demonstrate, inter alia, at least a half-day of trial time, or complex pre-trial motions orCharter applications. Thus, a JPT was required in this matter. As such, it would be unfair to characterize those remarks made by theprior representative as a clear and unequivocal waiver of time. How to apportion the time related to the JPT is dealt with below. [27] In terms of the reasons for the delay in this proceeding, several different time periods are hereby apportioned, as follows: (

a) The time between the date of the Certificate of Offence and the filing of the Notice of Intention to Appear is three days, which isapportioned to the accused; (

b) The time period between the filing of the Notice of Intention to Appear and the first Notice of Trial is four months. According to R.ex rel City of Toronto v. Andrade, 2011 ONCJ 470 , at paragraphs 55 to 58, the “intake period” for a

Part I offence should notexceed 30 to 45 days. Thus, the extraneous two and one-half months are apportioned to the prosecutor; (

c) The time period between the date of the Notice of Trial, April 3, 2012, and the first scheduled trial date, October 15, 2012, is 6months and 12 days. This time period is apportioned as institutional delay; (

d) The time between the first scheduled trial date, October 15, 2012, and the JPT, November 21, 2012, was 36 days. While there issome tension in the jurisprudence regarding how to characterize the delay associated with JPTs, the preponderance of case law supportsthe view espoused by Simmons, J.A in R. v. Tran, supra, at paragraph 34, where she held: ...it seems to me that requiring a judicial pre-trial to set the trial date(

s) is a reasonable and necessary case management tool in busyjudicial centres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally inpresentation of their cases. Accordingly, some reasonable period of delay in arranging a judicial pre-trial should be treated as part of theinherent time requirements of the case. Thus, I find that this period of time was reasonable under the circumstances.

Further, I add my own observation that the JPT process forPOA matters in Toronto is a necessary case management tool, and analogous to case management process instituted for criminal matterswithin the Ontario Court of Justice. Given the heavy load of cases that the Ontario Court of Justice carries in Toronto, it is importantthat the court system is able to put into place case management tools for lengthy POA trial matters, as well. I rely on R. v. Tran, supra,

and find that the time period for the JPT was inherent and neutral. (

e) The delay between December 18, 2012 and today's date is 58 days. It is apportioned to the accused, who was more than one hourlate on December 18, 2012. While I accept her apology for her tardiness, to rule otherwise would permit her to benefit unfairly. It wouldfall into the category of “bootstrapping” as described in obiter dicta in R. v.

Lahiry, 2011 ONSC 6780 , at paragraph 40. [28] In terms of prejudice to the accused, she testified that the prolonged nature of these proceedings felt like “an open wound taking awhile to heal.” She was physically injured in this accident, and the delay in this matter is causing her some additional mental anguish.This is actual prejudice, beyond the inherent prejudice of delay, which includes the fading memories of events.

Her actual prejudiceneeds to be balanced against the practical “societal interest,” in having matters go to trial, particularly where accidents have occurred.“As the seriousness of the offence increases so does the societal demand that the accused be brought to trial, “ as per R. v. Morin, supra,at p.787. This societal interest “is by its very nature adverse to the interests of the accused,” see: R v.

Morin, supra, at p. 786. [29] For these reasons, the following is an allocation of responsibility for the relevant time periods, from November 28, 2011 untilFebruary 14, 2013: • Prosecutorial delay is 3 months (based on 4 months to send out the Notice of Trial minus 30 days) • Defence delay is 3 days plus 58 days, which equals 61 days • Neutral delay is 45 days plus 36 days, which equals 81 days • Institutional delay is 6 months and 12 days Thus, I calculate the relevant delay in this matter to be about 9.5 months. [30] The Morin guideline for delay in the Ontario Court of Justice is eight to ten months, although this is not a limitation period.

See: R.v. Tran, supra, at para. 63. [31] The case before me is a

Part I charge that involved an accident. Mr. Manoukian relies upon R. v. Thorburn 1993 WL 1364476 (Ont.Prov. Div.), 1993 CarswellOnt 5316 for the proposition that for

Part I offences that involve collisions, the very low end of the Moringuidelines should apply. He advised the court that this was the only case he could find on this point. Given that this case is now quitedated, I give it little weight. [32] As Justice Libman recently and clearly articulated in R. v. Andrade, at para. 84, the “...constitutionally tolerable period ofinstitutional or systemic delay in the Toronto Region for the type of minor

Part I provincial offences cases in question as being between 8and 9 months.” Prejudice: [33] I am satisfied that actual prejudice has been shown in this matter because of the delay in proceeding to trial, based on Ms. Malcolm'stestimony of the angst that this delay brings to bear upon her. This actual prejudice compounds the real concern that “memories fadewith time.” See: R. v. Askov, (SCC), [1990] 2 S.C.R. 1199 at p. 1220.

Balancing: [34] The court must consider if the overall length of the relevant delay, which is about 9.5 months, is unreasonable having regard to theinterests of the accused, society's interests in having an accident matter heard, the explanation for the delay, and prejudice to theaccused. See: R. v. Tran, supra, at para. 24, citing Morin. [35] There has been significant institutional, neutral and defence delay in this case. [36] Society has an interest in seeing accident matters proceed to trial, which in this case, is in direct conflict with the accused's right tobe tried within a reasonable time.

Nevertheless, the charge was laid was under

Part I of the POA, and taken at its highest, speaks to thebehaviour of a pedestrian. There is little, if any, complexity to this case. Society's interest in seeing this matter proceed to trial falls farshort of what it would be for a complex criminal matter. [37] Based on all the factors before me, particularly in light of Andrade, I find that the time frame permitted for this matter to go to trialshould fall at the low end of the Morin guidelines. I hereby find that her right to go to trial within a reasonable time has been infringedunder

section 11(

b) of the Charter. ORDER: [38] Accordingly, for the reasons set out above, I grant this motion and hereby stay the proceeding pursuant to section 24(1) of theCharter. Dated this 14th day of February, 2013, at the City of Toronto. ________________________

Mary A. Ross Hendriks, J.P.