CHARTER OF RIGHTS AND FREEDOMS Section 11(b) right to be tried in a reasonable time APPLICATION TO PROVINCIAL AND MUNICIPAL OFFENSES

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1 CHARTER OF RIGHTS AND FREEDOMS Section 11(b) right to be tried in a reasonable time APPLICATION TO PROVINCIAL AND MUNICIPAL OFFENSES In the enforcement of bylaws, regulations, and statutes of the Province, and the persons and bodies under it s jurisdiction, such as conservation authorities, municipal corporations, and officials (i.e. Chief Building officials, police officers, provincial officers), may choose to lay charges of violating the applicable law. The charges would be laid under the statute (or subordinate legislation under the statute) creating the offense and processed under the Provincial Offences Act. Once the neutral intake period is completed, the accused has the right under Section 11(b) of the Charter of Rights and Freedoms to have the matter brought to trial within a reasonable time. Should this right not be respected, section 24 of the Charter of Rights and Freedoms allows the accused to make application to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. In the case of a Provincial Offence, the remedy is to obtain a stay of the proceedings. This, in effect, will mean the charges are at an end and will not be resurrected. As one might expect, the period of time which must pass before a delay is unreasonable is measured subjectively. In the case of offenses which are pursued in charges laid and heard in the provincial courts, the general rule of thumb is that a delay in the range of eight to 10 months may be considered reasonable. Putting it conversely, if at least eight months have passed since the neutral intake is completed, the courts may, depending on the facts, conclude that there has been an unreasonable delay and the preceeding should be stayed. If 10 months have passed, virtually all provincial offenses proceedings to trial would prima facie seen as having been unreasonably delayed. Again, these are not mathematical limits, but are guidelines. For example, a serious offense may reasonably be expected to be brought to trial in a period longer than that which should apply to a simpler offense such as driving a vehicle over the posted speed limit. In considering whether a proceeding has been unreasonably delayed, four major factors apply: 1. The length of the delay. The guidelines for delay in the provincial courts are noted above, eight to 10 months can be reasonable. The time frame is measured when the neutral intake is completed. For serious offenses, a preliminary trial would be required, and it is only when this is completed that the clock starts to run. For a simple offense such as speeding on a highway, the neutral intake period would end when the accused files his or her notice of intention to appear at trial to challenge the evidence of the crown. At most, this will occur within 15 days of the event. 2. Whether there has been any waiver of the delay by the accused. For example, if the accused was responsible for any part of the delay (i.e. by requesting additional time for it for any step in the preceding) then this period of time would not be regarded as being part of the "delay". Richard R. Arblaster, Barrister & Solicitor Suite 200, 7100 Woodbine Avenue, Markham, Ontario, L3R 5J2 Web Site: Phone (416) Fax: (416) rick@arblasterlaw.com

2 2 3. The explanation for the delay. For example, if the trial required special actions, such as bringing in witnesses and others from out of the jurisdiction, this would be a factor i.e. some delay over and above the usual can be expected. The fact staff of the Ministry of the Attorney General are overworked and underproductive is not a valid factor. Delay due to such factors are built in to the guidelines and, if not, are not to be borne at the expense of the accused. 4. The prejudice to the accused caused by the delay. In some cases, such as a simple speeding offense, the prejudice is implied by the simple fact that the charges were laid and the judicial proceeding was hanging over the accused head. To give a hypothetical example of a set of facts which would justify a finding that a provincial proceeding should be stayed based upon a violation of the accused s Section 11 [b] right to be tried within a reasonable period of time is the following: On December 23, 2004, the driver of an automobile is waved over by a police officer operating a laser speed gun and accused of driving in excess of the posted speed limit. The officer issues an offense notice on the spot. One week later, on December 30, 2004 the accused appears at the provincial offenses administration office and files a notice of intention to appear at trial, noting on the form that the evidence of the crown witness(es) would be challenged. In early July, 2005, the accused receives a notice of trial, issued by the provincial court, notifying him that the date for trial has been set for January 25, From the foregoing, the length of time following the neutral intake period is 12 months, three weeks, and four days, assuming it goes to trial on the date set in the notice. Applying the four factors cited above, the delay is just under 13 months, there is no waiver of time by the accused, there is no explanation for the delay that could be satisfactory, and there is prejudice to the accused in that the charge hung over at the accused s head for such a lengthy period of time. The time frame exceeded the guidelines in the provincial courts of eight to 10 months and, given that it was a simple offense, the lower and end of the range, i.e. 8 months, would be the better guideline for what is or is not an unreasonable delay. In similar fact situations, the courts have ordered a stay of proceedings where the delays in the cases were 10 months, 11 months, 12 months, and 13 months, respectively. A sample application record for an application by an accused under section 24 of the Charter of Rights and Freedoms, including, notice of constitutional question, factum and case citation list, affidavit in support, and affidavits of service (as required by Section 109 of the Courts of Justice Act the Attorneys General of Canada and Ontario must be served with the notice of constitutional question no less than 15 days before the application is heard), is attached to this memo. Richard R. Arblaster, Barrister & Solicitor Suite 200, 7100 Woodbine Avenue, Markham, Ontario, L3R 5J2 Web Site: Phone (416) Fax: (416) rick@arblasterlaw.com

3 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES DIVISION (TORONTO REGION) Offence No. XXXX XXX XX XXXXXXXX-XX B E T W E E N: HER MAJESTY THE QUEEN Respondent - and - JOHN Q. PUBLIC APPLICATION RECORD (Returnable Wednesday, January 25, 2006, courtroom E, Old City Hall) John Q. Public, in person 89 Oak Street. Somewhere, Ontario [POSTAL CODE] Telephone: (xxx) xxx-xxxx Facsimile: (xxx) xxx-xxxx Ministry of the Attorney General Provincial Prosecutors Old City Hall 60 Queen Street West Toronto, Ontario M5H 2M4 Court Clerk Ontario Court of Justice Old City Hall 60 Queen Street West Toronto, Ontario M5H 2M4

4 Offence No. XXXX XXX XX XXXXXXXX-XX ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES DIVISION (TORONTO REGION) B E T W E E N: HER MAJESTY THE QUEEN Respondent and JOHN Q. PUBLIC INDEX TAB NO. 1. Notice of Application and Constitutional Issue returnable January 25, Affidavit of John Q. Public. 4. Factum of the. 5. Affidavit of Service of Notice of Constitutional Question.

5 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES DIVISION (TORONTO REGION) Offence No. XXXX XXX XX XXXXXXXX-XX B E T W E E N: HER MAJESTY THE QUEEN Respondent and JOHN Q. PUBLIC NOTICE OF APPLICATION AND CONSTITUTIONAL ISSUE TAKE NOTICE that the will bring an Application before the trial judge on January 25, 2006 at 9:00 a.m. in the forenoon or so soon thereafter at Old City Hall, 60 Queen Street West, Toronto, for an Order staying proceedings pursuant to Section 24(1) of the Canadian Charter of Rights and Freedoms, based upon an infringement of the s rights under s. 11(b) of the Canadian Charter of Rights and Freedoms. THE GROUNDS FOR THIS APPLICATION ARE: There has been an excessive delay in this matter reaching trial, as guaranteed by Section 11(b) of the Canadian Charter of Rights and Freedoms; That the has suffered prejudice as a result of the delay occasioned in the matter herein; That the appropriate remedy for the denial of the said right is a stay of the proceedings; 1. Section 11 (b) of the Canadian Charter of Rights and Freedoms; 2. Section 24 (1) of the Canadian Charter of Rights and Freedoms; 3. R. v. Askov et al., (1990) 59 C.C.C. (3d) at page 449 (S.C.C.); 4. R. v. Morin, (1992) 71 C.C.C. (3d), 1 (S.C.C.); 5. R. v. C. R. Galassi (2005) 77 O.R. (3d) 208 (Ontario Ct. of Appeal);

6 6. R. v. Formosa, [1998] O.J. No (Ont. Ct. Jus.); 7. R. v. Mastroianni, [2000] O.J. No (Ont. Ct. Jus. In Appeal); 8. R. v. Dehaney (2005) ON CJ 468 (Ont. Ct. Jus.); 9. R. v. Rowan (2004) ON CJ 153 (Ont. Ct. Jus.); Such further and other grounds as counsel may advise and this Honourable Court may permit. IN SUPPORT OF THIS APPLICATION THE APPLICANT RELIES UPON THE FOLLOWING: 1. The Affidavit of John Q. Public sworn January 9, 2006; 3. The Factum of the ; 4. Such further and other material as counsel may advise and this Honourable Court may permit. THE CONSTITUTIONAL ISSUES TO BE RAISED ARE: 1. Were the accused s Section 11(b) rights pursuant to the Canadian Charter of Rights and Freedoms violated? STATUTORY PROVISIONS OR RULES WHICH THE APPLICANT PLACES RELIANCE ARE: 1. Section 11 (b) of the Canadian Charter of Rights and Freedoms; 2. Section 24 (1) of the Canadian Charter of Rights and Freedoms. THE RELIEF SOUGHT IS: 1. An Order allowing this application and granting a stay of proceedings due to a violation of the s rights pursuant to Section 11 (b) of the Canadian Charter of Rights and Freedoms.

7 THE APPLICANT MAY BE SERVED WITH DOCUMENTS PERTINENT TO THIS APPLICATION: By service on the personally, at. 89 Oak Street, Somewhere, Ontario, [POSTAL CODE], Telephone: (xxx) xxx-xxxx, Facsimile: (xxx) xxx-xxxx. DATED at Toronto, this 9th day of January, John Q. Public, In person John Q. Public, in person 89 Oak Street. Somewhere, Ontario [POSTAL CODE] Telephone: (xxx) xxx-xxxx Facsimile: (xxx) xxx-xxxx TO: AND TO: AND TO: AND TO: The Attorney General of Ontario Public Law Division Constitutional Law Branch 7th Floor, 720 Bay Street Toronto, Ontario M5G 2K1 The Attorney General of Canada Suite 3400, Box 36 Exchange Tower First Canadian Place Toronto, Ontario M5X 1K6 Office of the Provincial Prosecutor Ontario Court of Justice Old City Hall 60 Queen Street West Toronto, Ontario M5H 2M4 Office of the Court Clerk Ontario Court of Justice Old City Hall 60 Queen Street West Toronto, Ontario M5H 2M4

8 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES HER MAJESTY THE QUEEN -and- JOHN Q. PUBLIC NOTICE OF APPLICATION John Q. Public, in person 89 Oak Street. Somewhere, Ontario [POSTAL CODE] Telephone: (xxx) xxx-xxxx Facsimile: (xxx) xxx-xxxx

9 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES DIVISION (TORONTO REGION) Offence No. XXXX XXX XX XXXXXXXX-XX B E T W E E N: HER MAJESTY THE QUEEN Respondent and JOHN Q. PUBLIC FACTUM OF THE APPLICANT PART I STATEMENT OF THE CASE 1. It is alleged that the, John Q. Public, did, on the 22nd day of December, 2004, commit speeding contrary to Section 128 of the Highway Traffic Act. The seeks an Order staying the proceedings against him pursuant to Section 24(1) of the Charter of Rights and Freedoms on the basis that his right to be tried within a reasonable time has been infringed. PART II SUMMARY OF THE FACTS 2. It is alleged that on December 22, 2004, the did commit the offence of speeding contrary to s. 128 of the Highway Traffic Act. He was served with an offence notice on December 22, On December 30, 2004, the appeared at the Provincial Offences Office, 123 Edward Street, Toronto, and filed a notice of intention to appear in court to plead not guilty Reference: Affidavit of John Q. Public.

10 4. On or about July 11, 2005, the received a notice of trial from the Toronto South POA Office notifying him that his trial would be held on January 25, 2006 in courtroom E, 60 Queen St. W. Reference: Affidavit of John Q. Public 1. PART III THE LAW Purpose of Section 11(b) 12. It is respectfully submitted that as a purposive document, the Charter is designed to protect, first and foremost, individual rights and freedoms and to constrain government action that is inconsistent with those rights and freedoms. The purpose of the right to be tried within a reasonable time is to secure for the individual the more extensive rights to liberty and security of the person guaranteed by section 7 of the Charter. It is submitted that any societal interest satisfied by the enforcement of section 11(b) of the Charter is, as Mr. Justice Cory recognized in R. v. Askov et. al., inferential or incidental to the primary focus of the right. This societal concern has more recently been described by Justice Sopinka in R. v. Morin, [1992] 1 S.C.R. 771 as a secondary interest. Indeed, society has an interest in the prosecution of all crimes. It is submitted, however, that section 11(b) of the Charter has created a new interest and protection for the individual defendant: that the prosecution brings him or her to trial within a reasonable time. It is respectfully submitted that the fundamental priority underlying section 11(b) is the maintenance of an efficient system for the administration of justice in order to ensure that individuals are treated fairly and justly. Section 11(b) provides the individual defendant with a counterweight to the State's power and authority to prosecute namely, the obligation on the State to do so within a reasonable time. Reference: R. v. Askov [1990] 2 S.C.R at pg., R. v. Morin, [1992] 1 S.C.R. 771 at pg..

11 13. It is submitted that the remedy for a violation of section 11(b) of the Charter underscores the established principle that the aim of the right is to protect an individual's interests in liberty, security of the person and fundamental justice. Once a violation of section 11(b) is established, the minimum remedy is a stay of proceedings. Indeed, the court no longer has jurisdiction to try an accused once an unreasonable delay has occurred; in effect section 11(b) recognizes the individual's right not to be tried once an unreasonable period of time has elapsed. It is submitted that to allow a trial to begin or continue after a violation of section 11(b) would be for the judiciary to participate in a further violation of the Charter. The judiciary is the guardian of our criminal justice system and its administration. Therefore, the judiciary must be in a position to fashion an effective remedy when confronted with a violation of an individual's Charter rights. It is respectfully submitted that this must be the case even when such a remedy may conflict with a societal interest to proceed with trials after an unreasonable delay. Reference: R. v. Askov et al. [1990] 2 S.C.R at pg.. The Test for Unreasonable Delay 14. It is submitted that the four factors in assessing whether there has been a violation of the right to a trial within a reasonable time are the following: 1. the length of the delay; 2. waiver of time periods; 3. the explanation for the delay, including: i) inherent time requirements of the case; ii) actions of the accused; iii) actions of the Crown; iv) limits on institutional resources; v) other reasons for the delay; 4. prejudice to the accused. Reference: R. v. Morin [1992] 1 S.C.R. 771 at pg..

12 It is submitted that as a general proposition, in assessing whether a violation of section 11(b) has occurred, the court is required to balance these four factors. (i) Length of the Delay 15. It is submitted that the longer the delay, the more difficult it will be to excuse it because with each passing day there is growing impairment of the rights to liberty and security of the person. Very lengthy delays may be such that they cannot be justified for any reason. It is further submitted that in assessing the reasonableness of any delay the court must consider the total period of time and not subject each period to a piecemeal analysis. Reference: R. v. Askov et al. [1990] 2 S.C.R at pg It is respectfully submitted that the s rights under Section 11(b) of the Canadian Charter of Rights and Freedoms has been infringed. The Supreme Court of Canada has said that an acceptable period of time for institutional delay in the Ontario Court (Provincial Division) is eight to ten months. Reference: R. v. Morin, [1992] 1 S.C.R. 771 at pg.,, R. v. C. R. Galassi (2005) 77 O.R. (3d) 208 at pg. (Ontario Ct. of Appeal). 17. It is submitted that stricter limits are applicable to minor offence and that the lower end of the acceptable range is applicable to a straight forward highway traffic matter. Reference: R. v. Mastroianni, [2000] O.J. No at pg.,(ont. Ct. Jus. In Appeal), R. v. Rowan (2004) ON CJ 153 at pg., (Ont. Ct. Jus.), R. v. Dehaney (2005) ON CJ 468 at pg., (Ont. Ct. Jus.). 18. It is submitted that the clock measuring delay starts ticking against the Crown from the time the accused files his Notice of Intention to Appear. Reference: R. v. C. R. Galassi (2005) 77 O.R. (3d) 208 at pg., (Ontario Ct. of Appeal), R. v. Dehaney (2005) ON CJ 468 at pg., (Ont. Ct. Jus.), R. v. Rowan (2004) ON CJ 153 at pg., (Ont. Ct. Jus.).

13 (ii) Waiver 19. It is submitted that Justice Sopinka in Morin confirmed that waiver by an accused must be clear and unequivocal with full knowledge of the rights being waived and of the effect of the waiver on those rights. It is submitted that this is a very high standard and that as a result failure to assert the right silence or lack of objection cannot constitute a lawful waiver. The onus, even in the absence of an objection, is still on the Crown to demonstrate that the actions of an accused amounted to waiver of the delay. Where the waiver is alleged to be implicit the conduct of the accused must comply with the stringent test for waiver. Reference: R. v. Morin, [1992] 1 S.C.R. 771 at pg It is respectfully submitted that mere agreement by counsel to a future date without more cannot constitute a lawful waiver. As Mr. Justice Cory noted in Askov, the term "waiver" indicates that a choice has been made between available options. It is submitted that where the first available trial dates are given to an accused or where an adjournment is occasioned by the unavailability of a trial judge, Crown Attorney or Crown witnesses, an agreement to a new date for trial cannot logically imply a waiver of delay. It is submitted that resignation or acquiescence to the inevitable does not amount to waiver as defined by Supreme Court of Canada. Unless some real option is available there can be no choice exercised and therefore waiver is impossible. It is submitted that the onus is on the Crown to establish on the record that earlier dates were in fact available and that counsel had a meaningful choice to make. Reference: R. v. Morin, [1992] 1 S.C.R. 771 at pg.. (iii) Explanation for the Delay 21. It is submitted that this category can be subdivided into the following areas: (a) inherent time requirements; (b) actions of the accused; (c) actions of the Crown; (d) limits on institutional resources; and (e) other reasons for the delay.

14 (a) Inherent Time Requirements 22. It is submitted that this category of delay is comprised of all of the potential factors causing delay, which flow from the nature of the case and the inherent time requirements of the case. Reference: R. v. Morin, [1992] 1 S.C.R. 771 at pg It is further submitted that it is under this heading that the complexity of the case is to be taken into account. It is submitted that while it is recognized that complex cases require more institutional resources and time for preparation, the standard of what constitutes a reasonable delay is not concerned with the difficulties that a particular police force, Crown office or court may face in preparing for and/or getting a case to trial that result from institutional inadequacies such as lack of personnel or facilities. Rather, the court must fix an objective and realistic time period for the preparation of the particular type of case at bar having regard for the number of accused, the number of charges, and the complexity and volume of evidence, if fully adequate institutional resources were available. Reference: R. v. Askov et al. [1990] 2 S.C.R at pg.., R. v. Morin, [1992] 1 S.C.R. 771 at pg... (b) Actions of the Accused 24. It is submitted that the actions of the accused that are included in this category include change of venue applications, attacks on wiretaps, adjournments that do not amount to waiver, and attacks on search warrants. There is no necessity to impute improper motives to the accused in considering this factor. Reference: R. v. Morin [1992] 1 S.C.R. 771 at pg.. (c) Actions of the Crown 25. It is submitted that within this category are included adjournments requested by the Crown, failure or delay in disclosure, and other motions or applications brought by

15 the Crown. Reference: R. v. Morin [1992] 1 S.C.R. 771 at pg.. (d) Limits on Institutional Resources 26. It is respectfully submitted that the Supreme Court of Canada has clearly held that systemic or institutional delays are attributable to the Crown in the sense that systemic delay cannot be relied upon by the Crown to excuse delay. It is submitted that the analysis must begin with the following premise: because of the fundamental importance of the right to be tried within a reasonable time, the lack of institutional resources cannot be used to justify unreasonable delays. Indeed, it is submitted that as a matter of principle and logic this must be so since it is the responsibility of the State to bring accused persons to trial, (and not for the accused to bring him or herself to trial), and therefore the responsibility of the State to ensure that adequate resources are available to bring persons to trial within a reasonable time. As Justice Sopinka stated in Morin: [t]he Court cannot simply accede to the government s allocation of resources and tailor the period of admissible delay accordingly. The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes that obligation from many others that compete for funds with the administration of justice. Reference: R. v. Morin, [1992] 1 S.C.R. 771 at pg.. (e) Other Reasons for Delay 27. It is submitted that this category of factors relates to all other reasons for delay that does not neatly fit into one of the other categories, for example the actions of judges. Reference: R. v. Morin [1992] 1 S.C.R. 771 at pg.. (iv) Prejudice 28. It is respectfully submitted that the concept of prejudice underlies the right to be tried within a reasonable time and that prejudice can be inferred from the length of the delay. The longer the delay the more likely that the inference will be drawn.

16 Reference: R. v. Morin [1992] 1 S.C.R The courts have set stricter limits for the more minor matters, which should be easier to prove, and are not as complex. It does not set longer limits for the more minor matters because they are less important. Reference: R. v. Mastroianni, [2000] O.J. No at pg., (Ont. Ct. Jus. In Appeal), R. v. Rowan (2004) ON CJ 153 at pg., (Ont. Ct. Jus.), R. v. Dehaney (2005) ON CJ 468 at pg., (Ont. Ct. Jus.). 30. It is suggested by Justice Sheppard in R. v. Mastroianni that there is always an implied prejudice in being charged with offences which require your appearance before the courts. Reference: R. v. Mastroianni, [2000] O.J. No at pg., (Ont. Ct. Jus. In Appeal), R. v. Formosa, [1998] O.J. No (Ont. Ct. Jus.). 2. PART IV ORDER SOUGHT 31. It is respectfully requested that the Application be allowed and that the proceedings against the be stayed pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms. ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 9th day of January, a) John Q. Public b) John Q. Public, in person 89 Oak Street. Somewhere, Ontario [POSTAL CODE] Telephone: (xxx) xxx-xxxx Facsimile: (xxx) xxx-xxxx

17 AUTHORITIES TO BE CITED 1. R. v. Askov et al. [1990] 2 S.C.R R. v. Morin [1992] 1 S.C.R R. v. C. R. Galassi (2005) 77 O.R. (3d) 208 (Ontario Ct. of Appeal) 4. R. v. Formosa [1998] O.J. No (Ont. Ct. Jus.) 5. R. v. Mastroianni [2000] O.J. No (Ont. Ct. Jus. In Appeal) 6. R. v. Dehaney (2005) ON CJ 468 (Ont. Ct. Jus.) 7. R. v. Rowan (2004) ON CJ 153 (Ont. Ct. Jus.)

18 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES HER MAJESTY THE QUEEN -and- JOHN Q. PUBLIC FACTUM OF APPLICANT John Q. Public, in person c) 89 Oak Street. Somewhere, Ontario [POSTAL CODE] Telephone: (xxx) xxx-xxxx Facsimile: (xxx) xxx-xxxx

19 ONTARIO COURT OF JUSTICE (Provincial Offences Division) Offence No. XXXX XXX XX XXXXXXXX-XX B E T W E E N: HER MAJESTY THE QUEEN Respondent -And- JOHN Q. PUBLIC AFFIDAVIT I, John Q. Public, of the City of Toronto, province of Ontario, MAKE OATH AND SAY AS FOLLOWS: 1. I am the applicant in this matter and as such have knowledge of the matters hereinafter deposed to. Unless I indicate to the contrary, all those matters within my own personal knowledge are true. Where I have obtained information from other sources, I do verily believe that information to be true. 2. I currently have outstanding charge of speeding contrary to the Highway Traffic Act, section 128. This charge was laid following the issuance of an offence notice (no. XXXXXXXX) on the morning of Wednesday, December 22, In the circumstances, outlined below, I considered the charge to be unfounded and so on Thursday, December 30, 2004 I attended at the Ontario Court of Justice POA Office, 137 Edward Street, Toronto and filed a notice of intention to appear in court.

20 4. On or about Monday, July 11, 2005 I received in the mail a notice of trial stating that the trial of the charge would be held on Wednesday, January 25, 2006, some thirteen months after the day the offence notice was served on me. 5. On Wednesday, December 22, 2004 I exited from the Don Valley Parkway southbound onto the off-ramp to Eastern Avenue. This off-ramp takes a ninety degree turn to bring the ramp line parallel with Eastern Avenue and in my experience requires vehicles to slow to 50 km per hour to negotiate the turn safely. 6. The off-ramp becomes a westbound lane which, together with the right lane of the two lane westbound Eastern Avenue, becomes a two-lane roadway leading into Richmond Street, a one-way westbound road. 7. In order to proceed west on Eastern Avenue from the Don Valley off-ramp it is necessary to change from the off-ramp lane to the right lane of Eastern Avenue. This is a difficult maneuver as there is only a short distance in which the lanes are demarcated with broken white lines. I do not know the exact distance available; however, it is short, there are only 11 broken white lines in the maneuvering space. The difficulty of the maneuver is aggravated by the fact that vehicles on Eastern Avenue which wish to travel onto Richmond Street will occupy the lane and, as well, visibility is poor due to the existence of a concrete barrier along part of the divide between the off-ramp and Eastern Avenue. The total effect is that a driver wishing to move from the off-ramp lane to Eastern Avenue must be extremely alert, checking the driver s side mirror as well as vehicles in front, being prepared to accelerate or decelerate depending on the traffic in the Eastern Avenue right lane, in order to safely move from one lane to the other in the short distance which is available. 8. When I exited from the Don Valley Parkway southbound onto the off-ramp on Wednesday, December 22, 2004 my intention was to move into the right lane of Eastern Avenue in order to proceed westbound on Eastern Avenue. I rounded the 90 degree corner of the off-ramp and went into a state of alert to make the lane transfer maneuver.

21 As the off-ramp lane straightened out I increased my vehicle speed to facilitate a safe lane change if need be. As my vehicle approached the section of road where the line striping allowed the lane change I peripherally noted a vehicle ahead in the right lane of Eastern Avenue. As I noted in my side view mirror that the lane was clear I proceeded to change from the off-ramp lane to the Eastern Avenue lane. When my eyes went back, from the side view mirror, to the road ahead I again noted the vehicle in the right lane of Eastern Avenue. This vehicle was, I noted, braking near the point where the right lane of Eastern Avenue forked (a driver could choose to move into the left lane of Richmond Street or stay in the right lane of Eastern Avenue). The thought which went through my mind was the driver was uncertain as to whether move the vehicle onto Richmond Street or stay on Eastern Avenue. As the braking became more emphatic I checked my side view mirror, determined that the left lane of Eastern Avenue was clear, and began to move into that lane to avoid the vehicle driven by the uncertain driver. As the vehicle s brake lights continued to be lit past the point where the driver could make the switch onto Richmond Street it crossed my mind that there may be some reason for the braking other than uncertainty as to which road to take. As I travel this stretch of roadway regularly and am aware that radar is regularly present (on both Eastern Avenue and Richmond Street) it occurred to me that perhaps the driver (whose vehicle was still ahead of mine at this point) had seen a radar setup and was braking to reduce speed. At that point I looked down at my speedometer and noted that the needle was marginally above 60 km per hour. This additional speed over the limit of 50 km per hour was a result of having increased speed to move from the off-ramp to the Eastern Avenue lane and thence to the left lane to stay clear of the braking vehicle. I then looked up as my car overtook the braking vehicle. The overtaking allowed me to view the side of the road ahead where I noted a radar set up. At that point, appreciating I was over the limit because of the lane change maneuver, I took my foot off the accelerator and my vehicle, which was in second gear, immediately began to slow. The braking vehicle and mine were moving in parallel beside each other, both vehicles slowing. At that point Eastern Avenue goes into a downgrade as it moves from the elevated bridge over the Don Valley down to surface level. I looked down at my speedometer and noted it read my speed as 50 km per hour plus-minus. I moved my foot back on the accelerator to hold the speed. The other vehicle continued to slow so mine

22 moved, relatively, out in front. As the two vehicles moved down the grade of Eastern Avenue the officer in charge was standing by the radar set up on the north side of Eastern Avenue and, I believe, looking back and forth at the two vehicles. As we approached my vehicle became a car length or so ahead. The officer again looked back and forth at the vehicles then pointed at my car, waving it to the side. 9. When I cam to a stop the officer asked, to the best of my recollection, if I knew I was traveling at over 75 km per hour. I explained that was impossible. The officer then showed me the read-out on the radar gun which showed numerals. It has been some time but my recollection is that the speed shown was 75 km per hour or more. My comment to the officer was that the speed shown must relate to the other vehicle as I mine was traveling at just over 60 km per hour just before the point the radar could have picked up its speed. The certificate of offence was, nonetheless, issued. 10. I did not think I was wrong about my vehicle s maximum speed. In the days that followed I made careful note of my vehicle s speed taking the same off-ramp and satisfied myself that I do not round the curve at a speed in excess of 50 km per hour +/-. It is simply too sharp. I also checked my speed traveling as I normally would and do when changing into the Eastern Avenue lane. Again, I satisfied myself that while it was prudent to be prepared to exceed and, on occasion briefly exceed, the limit of 50 km per hour, it is not at all likely that my vehicle s speed would come close to the speed alleged by the officer. 11. I take the Don Valley to Eastern Avenue off-ramp in excess of an average of once a week for business purposes, sometimes changing lanes to move to Eastern Avenue and sometimes staying in the off-ramp lane to proceed to Richmond Street. Almost without exception, each time I have done so since the date of the offence I have checked my speed rounding the corner, go through in my mind the events surrounding the alleged offence, and come to the conclusion that the charge was unfounded. This is an aggravating and annoying repetition but it has been impossible for me to put the event behind me as I did, and do, feel I was wrongly charged.

23 12. By the time the charge is tried over thirteen months will have passed since the charge was laid. This delay may suit the circumstances of the prosecutorial system, but it is excessive and it is unreasonable as I have had to repeatedly relive the related events in the course of my day to day life and repeatedly be reminded that, to my thinking, I was wrongly charged. 13. I make this affidavit in support of an application alleging a violation of my right to a trial within a reasonable time pursuant to Section 11(b) of the Canadian Charter of Rights and Freedoms and for no other or improper purpose. SWORN BEFORE ME ) At the City of Toronto, ) Province of Ontario ) John Q. Public This day of, ) 200X. ) Emma Lawyer A COMMISSIONER, ETC.

24 ONTARIO COURT OF JUSTICE (Provincial Offences Division) HER MAJESTY THE QUEEN -And- JOHN Q. PUBLIC AFFIDAVIT John Q. Public, in person 89 Oak Street. Somewhere, Ontario [POSTAL CODE] Telephone: (xxx) xxx-xxxx Facsimile: (xxx) xxx-xxxx

25 ONTARIO COURT OF JUSTICE (Provincial Offences Division) Offence No. XXXX XXX XX XXXXXXXX-XX B E T W E E N: HER MAJESTY THE QUEEN Respondent -And- JOHN Q. PUBLIC AFFIDAVIT OF SERVICE I, John Q. Public, of the City of Toronto in the Province of Ontario, MAKE OATH AND SAY: 1. I served the Attorney General of the Province of Ontario with the Notice of Constitutional Question and the Notice of Application and Constitutional Issue attached hereto as Exhibit 1, by delivering a copy to: The Attorney General of Ontario Constitutional Law Division 7th Floor 720 Bay Street Toronto, Ontario M5G 2K1; as required by Section 109 of the Courts of Justice Act. The delivery was made at 9:45 a.m. on January 10, 2006 to [INSERT NAME] Administrative Assistant. 2. I served the Attorney General of Canada with the Notice of Constitutional Question and the Notice of Application and Constitutional Issue attached hereto as Exhibit 1, by delivering a copy to: The Attorney General of Canada Suite 3400, Exchange Tower Box 36, First Canadian Place Toronto, Ontario M5X 1K6; as required by Section 109 of the Courts of Justice Act and Form 4F. The delivery was made at 10:20 a.m. on January 10, 2006 to [INSERT NAME], Legal Assistant. 3. I also served the Ministry of the Attorney General, Provincial Prosecutors, Old City Hall, 60 Queen St. West, Toronto, Ontario, M5H 2M4 with the Notice of Constitutional Question and the Notice of Application and Constitutional Issue attached hereto as Exhibit 1, by delivering a copy a

26 copy to the address aforesaid. The delivery was made at 10:45 a.m. on January 10, 2006 to [INSERT NAME], Legal Staff. 2 Sworn before me at the City of Toronto in the Province of Ontario this day of January, A Commissioner for taking affidavits John Q. Public

27 Offence No. XXXX XXX XX XXXXXXXX-XX B E T W E E N: ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES DIVISION (TORONTO REGION) HER MAJESTY THE QUEEN Respondent and JOHN Q. PUBLIC NOTICE OF CONSTITUTIONAL QUESTION The intends to claim a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Ontario. The question is to be argued on Wednesday, January 25, 2006 at 9:00 A.M.. at Courtroom E, 60 Queen Street West, Toronto, Ontario, M5H 2M4. The following are the material facts giving rise to the constitutional question: 1. The received a certificate of offence for speeding, Section 128 of the Highway Traffic Act, on December 22, The trial of the offence is scheduled to held on January 25, 2006, over thirteen months after the certificate of offence was served. 3. There has been an excessive delay in this matter reaching trial contrary to the right guaranteed by Section 11(b) of the Canadian Charter of Rights and Freedoms. 4. The has not waived the delay. 5. There is no explanation for the delay. 6. The has suffered prejudice as a result of the delay occasioned in the matter herein. The following is the legal basis for the constitutional questions: 1. Section 11 (b) of the Canadian Charter of Rights and Freedoms; 2. Section 24 (1) of the Canadian Charter of Rights and Freedoms; 3. R. v. Askov et al. [1990] 2 S.C.R R. v. Morin [1992] 1 S.C.R R. v. C. R. Galassi (2005) 77 O.R. (3d) 208 (Ontario Ct. of Appeal);

28 2 6. R. v. Formosa [1998] O.J. No (Ont. Ct. Jus.); 7. R. v. Mastroianni [2000] O.J. No (Ont. Ct. Jus. In Appeal); 8. R. v. Dehaney (2005) ON CJ 468 (Ont. Ct. Jus.); 9. R. v. Rowan (2004) ON CJ 153 (Ont. Ct. Jus.); As set out in the attached Notice of Application and Constitutional Issue dated January 9, Dated at Toronto, this XX day of January, To: John Q. Public, in person 89 Oak Street. Somewhere, Ontario [POSTAL CODE] Telephone: (xxx) xxx-xxxx Facsimile: (xxx) xxx-xxxx The Attorney General of Ontario Constitutional Law Division 7th Floor 720 Bay Street Toronto, Ontario M5G 2K1; And to: The Attorney General of Canada Suite 3400, Exchange Tower Box 36, First Canadian Place Toronto, Ontario M5X 1K6; And to: Office of the Provincial Prosecutor Ontario Court of Justice Old City Hall 60 Queen Street West Toronto, Ontario M5H 2M

29 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES DIVISION (TORONTO REGION) Offence No. XXXX XXX XX XXXXXXXX-XX B E T W E E N: HER MAJESTY THE QUEEN Respondent and JOHN Q. PUBLIC NOTICE OF APPLICATION AND CONSTITUTIONAL ISSUE TAKE NOTICE that the will bring an Application before the trial judge on January 25, 2006 at 9:00 a.m. in the forenoon or so soon thereafter at Old City Hall, 60 Queen Street West, Toronto, for an Order staying proceedings pursuant to Section 24(1) of the Canadian Charter of Rights and Freedoms, based upon an infringement of the s rights under s. 11(b) of the Canadian Charter of Rights and Freedoms. THE GROUNDS FOR THIS APPLICATION ARE: There has been an excessive delay in this matter reaching trial, as guaranteed by Section 11(b) of the Canadian Charter of Rights and Freedoms; That the has suffered prejudice as a result of the delay occasioned in the matter herein; That the appropriate remedy for the denial of the said right is a stay of the proceedings; 1. Section 11 (b) of the Canadian Charter of Rights and Freedoms; 2. Section 24 (1) of the Canadian Charter of Rights and Freedoms; 3. R. v. Askov et al., (1990) 59 C.C.C. (3d) at page 449 (S.C.C.); 4. R. v. Morin, (1992) 71 C.C.C. (3d), 1 (S.C.C.); 5. R. v. C. R. Galassi (2005) 77 O.R. (3d) 208 (Ontario Ct. of Appeal);

30 6. R. v. Formosa, [1998] O.J. No (Ont. Ct. Jus.); 7. R. v. Mastroianni, [2000] O.J. No (Ont. Ct. Jus. In Appeal); 8. R. v. Dehaney (2005) ON CJ 468 (Ont. Ct. Jus.); 9. R. v. Rowan (2004) ON CJ 153 (Ont. Ct. Jus.); Such further and other grounds as counsel may advise and this Honourable Court may permit. IN SUPPORT OF THIS APPLICATION THE APPLICANT RELIES UPON THE FOLLOWING: 1. The Affidavit of John Q. Public sworn January 9, 2006; 3. The Factum of the ; 4. Such further and other material as counsel may advise and this Honourable Court may permit. THE CONSTITUTIONAL ISSUES TO BE RAISED ARE: 1. Were the accused s Section 11(b) rights pursuant to the Canadian Charter of Rights and Freedoms violated? STATUTORY PROVISIONS OR RULES WHICH THE APPLICANT PLACES RELIANCE ARE: 1. Section 11 (b) of the Canadian Charter of Rights and Freedoms; 2. Section 24 (1) of the Canadian Charter of Rights and Freedoms. THE RELIEF SOUGHT IS: 1. An Order allowing this application and granting a stay of proceedings due to a violation of the s rights pursuant to Section 11 (b) of the Canadian Charter of Rights and Freedoms.

31 THE APPLICANT MAY BE SERVED WITH DOCUMENTS PERTINENT TO THIS APPLICATION: By service on the personally, at. 89 Oak Street, Somewhere, Ontario, [POSTAL CODE], Telephone: (xxx) xxx-xxxx, Facsimile: (xxx) xxx-xxxx. DATED at Toronto, this 9th day of January, John Q. Public, In person John Q. Public, in person 89 Oak Street. Somewhere, Ontario [POSTAL CODE] Telephone: (xxx) xxx-xxxx Facsimile: (xxx) xxx-xxxx TO: AND TO: AND TO: AND TO: The Attorney General of Ontario Public Law Division Constitutional Law Branch 7th Floor, 720 Bay Street Toronto, Ontario M5G 2K1 The Attorney General of Canada Suite 3400, Box 36 Exchange Tower First Canadian Place Toronto, Ontario M5X 1K6 Office of the Provincial Prosecutor Ontario Court of Justice Old City Hall 60 Queen Street West Toronto, Ontario M5H 2M4 Office of the Court Clerk Ontario Court of Justice Old City Hall 60 Queen Street West Toronto, Ontario M5H 2M4

32 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES HER MAJESTY THE QUEEN -and- JOHN Q. PUBLIC NOTICE OF APPLICATION John Q. Public, in person 89 Oak Street. Somewhere, Ontario [POSTAL CODE] Telephone: (xxx) xxx-xxxx Facsimile: (xxx) xxx-xxxx

33 Her Majesty the Queen and- John Q. Public Court file no. XXXX XXX XX XXXXXXXX-XX Respondent ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES DIVISION (TORONTO REGION) AFFIDAVIT OF SERVICE John Q. Public, in person 89 Oak Street. Somewhere, Ontario [POSTAL CODE] Telephone: (xxx) xxx-xxxx Facsimile: (xxx) xxx-xxxx

34 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES DIVISION (TORONTO REGION) Offence No. XXXX XXX XX XXXXXXXX-XX B E T W E E N: HER MAJESTY THE QUEEN Respondent - and - JOHN Q. PUBLIC APPLICATION RECORD (Returnable Wednesday, January 25, 2006, courtroom E, Old City Hall) John Q. Public, in person 89 Oak Street. Somewhere, Ontario [POSTAL CODE] Telephone: (xxx) xxx-xxxx Facsimile: (xxx) xxx-xxxx Ministry of the Attorney General Provincial Prosecutors Old City Hall 60 Queen Street West Toronto, Ontario M5H 2M4 Court Clerk Ontario Court of Justice Old City Hall 60 Queen Street West Toronto, Ontario M5H 2M4

35 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES DIVISION (TORONTO REGION) HER MAJESTY THE QUEEN Respondent - and - JOHN Q. PUBLIC APPLICATION RECORD Returnable January 25, 2006 John Q. Public, in person 89 Oak Street. Somewhere, Ontario [POSTAL CODE] Telephone: (xxx) xxx-xxxx Facsimile: (xxx) xxx-xxxx