COURT FILE No.: Toronto Region, Provincial Offences Certificate of Offence # 73657325 Citation: R. v. Rowan, 2004 ONCJ 153 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN AND GRANT W. ROWAN Defendant/Applicant E. Fernandez, for the City of Toronto T. Brown, for the Defendant/Applicant HEARD: August 6 th, 2004 JUSTICE OF THE PEACE M. H. CONACHER: This is an application by the defendant pursuant to section 24(1 of the Canadian Charter of Rights and Freedoms (the Charter for a ruling that his right to be tried in this matter within a reasonable time pursuant to s. 11(b of the Charter has been infringed. Further, in the event the Court finds that that right has been infringed, the defendant seeks the remedy of a stay of proceedings pursuant to section 24(1 of the Charter. HELD: The period of delay in this matter is unreasonable. Further, the prosecution has not justified the delay. Accordingly, the defendant s right under s. 11(b of the Charter has been violated. The appropriate remedy is a stay of proceedings. It is therefore ordered pursuant to s. 24(1 of the Charter that the proceedings in this matter be stayed. CHRONOLOGY: April 8 th, 2003 is the date of the alleged offence of speeding 99 km/hour in an 80 km/hour zone contrary to s. 128 of the Highway Traffic Act of Ontario (H.T.A.. The police officer involved, W. Lakey, certifies that Grant W. Rowan was served on that date with an Offence Notice under Part I of the Provincial Offences Act of Ontario (P.O.A.. If, within 15 days from the serving of the Offence Notice, an accused does not exercise an option pursuant to any of sections 5.1, 6, 7 or 8 of the P.O.A., the accused is at risk of being deemed to not wish to dispute the charge and having a conviction entered against him or her. This is one of the features of the P.O.A. that serves to infuse the P.O.A. Part I process with a time is of the essence quality. Mr. Rowan was in compliance with this particular time limitation. A Notice of Intention to
2 appear dated April 23 rd, 2003 (Form 7 under the P.O.A. was completed and filed with the Court on behalf of Mr. Rowan. On August 22 nd, 2003, four months less a day later, the Court prepared a Notice of Trial to be held November 24 th, 2003. On September 4 th that Notice was placed in the mail. There was no evidence or submissions as to when Mr. Rowan or his agent in fact received the Notice of Trial. By reference to s. 5 of Regulation 200, as amended, under the Courts of Justice Act (Rules of the Ontario Court of Justice in Provincial Offences Proceedings that Notice is deemed to have been delivered 7 clear days later, on September 11 th, 2003; four months and three weeks after the date of Mr. Rowan s Notice of Intention to Appear. Sometime after September 11 th, 2003 and prior to November 11 th, 2003, a request for disclosure was made of the municipal prosecutor s office on behalf of Mr. Rowan. Sometime after that request and, again, prior to November 11 th, 2003, the municipal prosecutor supplied Mr. Rowan s agent with a photocopy of the Enforcement Agency Record of Certificate of Offence # 73657325. This Record is a single page created by automatic carbon at the time that the Provincial Offences Officer completes the Certificate of Offence. It is that part of the speeding ticket kept by the issuing officer. The photocopy of that document is exhibit #2 to this hearing. On November 11, 2003, the agent for Mr. Rowan faxed to the municipal prosecutor s office a document identifying certain deficiencies with respect to the photocopied Record that had been disclosed to the defendant. That correspondence is exhibit #3 to this hearing. The agent s correspondence enumerates other items that, if they exist, the defence requests be disclosed. That correspondence also conveys the defence request that the deficiencies regarding the disclosure already provided and any further disclosure be rendered to the defence no later than 14 days prior to the scheduled trial date. The transmission record on exhibit #3 indicates that that fax was confirmed as delivered to the municipal prosecutor s office on November 11, 2003, 13 days prior to the scheduled trial date. As argued by Mr. Rowan s agent at this hearing, the principal purpose in forwarding exhibit #3 to the prosecutor was to seek clarification of certain markings that appear on the police officer s copy of the speeding ticket. There is also some concern expressed, albeit muted concern, regarding the legibility of the photocopy provided to the defence. The municipal prosecutor did not respond or reply to the November 11 th, 2003 fax. The matter came on for trial on November 24 th, 2003. A transcript of those proceedings is exhibit #1 to this hearing. The transcript reflects that Mr. Rowan s agent initiates a request for an adjournment in order for disclosure to be perfected. The municipal prosecutor does not object to the stated need to address the disclosure issue. Rather, the prosecutor concurs that in the circumstances an adjournment would be appropriate. The Court does not question the adequacy or inadequacy of the disclosure or whether an adjournment is required to deal with the alleged deficiencies. The Court accedes to the request for an adjournment. The municipal prosecutor suggests an adjournment date of March 18 th, 2004. The agent for Mr. Rowan indicates, that s agreeable. A moment later when asked by the Court if the date is agreeable Mr. Rowan s agent replies, It is. Neither the defence nor the Court addresses the issue of an adjournment of more than 3 months to deal with a minor disclosure problem. Neither do they seek to inquire if an earlier date might be available for the matter to return. The matter is adjourned to March 18 th, 2004 and, again, marked for trial. On August 6 th, 2004, Mr. Rowan s agent advised this Court of what transpired on November 24 th, 2003 immediately following the adjournment. Mr. Rowan s agent and the involved police officer had a brief discussion in the corridor of the courthouse regarding the significance of the markings on
3 the officer s copy of the speeding ticket. The Officer asked the agent, rather than standing in the courthouse corridor discussing the matter, to put the request for clarification in writing and to submit it to the municipal prosecutor s office. The police officer was present in court on August 6 th, 2004 and acknowledged to this Court that the agent s description of what occurred between them on November 24 th, 2003 was essentially accurate. Notwithstanding that such a request had been filed previously on November 11, 2003, with the municipal prosecutor s office, another fax, exhibit #4, was sent by Mr. Rowan s agent on December 9 th, 2003 to the municipal prosecutor s office setting out once again the issues regarding the previous disclosure. The defence contends and the prosecutor does not dispute that from that date to the present the defence has received no acknowledgement or reply to the December 9 th, 2003 fax nor have the perceived deficiencies with respect to the earlier disclosure been addressed. On March 1 st, 2004 the defence served a Notice of Application that the defence, on the scheduled trial date, would be seeking a ruling of unreasonable delay contrary to the Charter and seeking an order for a stay of proceedings. On March 18 th, 2004 the matter is again adjourned, this time for 4 months and three weeks to August 6 th, 2004. The Court record does not reflect a reason for the adjournment nor the requesting party. A transcript of the proceedings on that date was not provided to the Court for the purposes of this hearing. The municipal prosecutor on August 6 th, 2004 had not been present on March 18 th. Mr. Rowan s agent was present on March 18 th but was candid in acknowledging that he was unable to recall the reason for the adjournment. Significantly, Mr. Rowan s agent is not arguing that the delay from March 18 th, 2004 to August 6 th, 2004 be considered for the purposes of the current Application. Effectively, the defence waives this period. On July 22 nd, 2004, the defence again served a Notice of Charter Application regarding unreasonable delay. The August 6 th date was taken up with submissions regarding that Application. The matter was adjourned to August 16 th for this ruling. ISSUES BEFORE THE COURT & REASONS: For guidance in determining the following issues the Court refers to the March 2, 2004 Endorsement by Mr. Justice Doherty on an application for leave to appeal in the matter of R. v. Omarzadah (O.J. #2212 in which he states at paragraph 3: The analysis of s. 11(b provided in R. v. Morin, [1992] 1 S.C.R. 771 applies to POA prosecutions. To the extent that guidelines are helpful where s. 11(b claims are advanced in prosecutions under Part I of the POA, the R. v. Morin summary conviction guidelines should govern. Therefore, it is useful to cite the general guidelines set out in R. v. Morin, [1992] 1 S.C.R. 771, at page 772 where Sopinka, J. writes: The general approach to a determination of whether the s. 11(b 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 against factors which inevitably lead to delay. The factors to be considered are: (1 the length of the delay; (2 waiver of time periods; (3 the reasons for the delay, including (a inherent time requirements of the case, (b
4 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. Leaving aside the question of delay on appeal, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. 1. Length of Delay The date of the alleged offence including the serving of the Offence Notice is April 8 th, 2003. The Certificate of Offence was filed by the police service with the Clerk of the Court on April 14 th, 2003. In R. v. Omarzadah, [2003] O.J. No. 5712, Shimai, J. sitting as a Provincial Offences Appeal Court ruled, I conclude that the length of the delay was not properly reckoned and that in fact 13 months, 22 days, from the offence date (emphasis added to time of trial ought to be considered as the time Mr. Omarzadah waited for his trial. With respect, this Court cannot agree with the Honourable Judge in her position that the period of delay be calculated from the date of the offence. There are three reasons. Firstly, pursuant to s. 3(1 of the P.O.A. the offence does not become a matter for the courts until the Certificate of Offence is filed with the court thereby initiating process on the charge. For reasons too numerous to detail here, an issuing officer or his or her police service may never file the Certificate with the court. As well, if the Certificate is not filed within 7 days of the offence date, the Rules of the Provincial Offences Court require the Clerk to refuse to accept the Certificate. In either instance, there would be no further process against the defendant. Secondly, the P.O.A. does not confer a presumptive right to a trial on an accused charged under Part I. An accused must proactively exercise the option pursuant, in this instance, to s. 5.1(3 of the P.O.A., and apply for a trial. The issue of a trial and hence the issue of a right to a trial within a reasonable time does not come alive until the defendant takes that action. Thirdly, in R. v. Morin (supra Sopinka J. provided a guideline at page 778, stating, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. The date of the charge is to be distinguished from the offence date. Again, the P.O.A. provides: 3(1 In addition to the procedure set out in Part III for commencing a proceeding by laying an information, a proceeding in respect of an offence may be commenced by filing a certificate of offence alleging the offence in the office of the court. It is not unusual for an Offence Notice not to be served until some time after the offence date. In most of those instances the time discrepancy between the date of the offence and the serving of an Offence Notice will usually be no more than a few days. However, in keeping with s. 3(3 of the P.O.A. that period can be up to 30 days. In Part I matters under the P.O.A then, the date of the offence is not necessarily the date of the charge. The date of the charge may be considered to be the date of the filing of the Certificate of Offence with the court. From that time forward there will be some form of disposition of the matter by the courts and the accused becomes actively liable to conviction and penalty. In any event, and for the purposes of considering a s. 11(b Charter application involving a Part I of the P.O.A. in most instances, this case in particular, the clock starts with the filing of the Notice of Intention to Appear. As stated above, it is at that point that the issue of a trial comes alive in Part I matters. This date may be up to 45 days after the date of the alleged offence. As of the date of this hearing, August 6 th, 2004, the trial has yet to take place. Further, the defence is not in a position to proceed to trial as the prosecution has yet to reply to the defence s two written and one oral request for clarification of the disclosure.
5 Accordingly, applying the guidelines in R. v. Morin, the total period of delay is April 14 th, 2003 to August 6 th, 2004. 2. Whether the Defendant waives any of the time period for determining delay At the August 6 th hearing, the defence expressly waived the time period from March 18 th, 2004 to the August 6 th hearing. Accordingly, this period will not be taken into account for the purposes of this application. The seven month and ten day period from April 14 th, 2003 to November 24 th, 2003 has not been waived. The period that requires judicial determination is the three month and two week period from November 24 th, 2003 to March 18 th, 2004. The determination to be made is whether the defence s acquiescence on November 24 th, 2003 to the prosecutor s suggestion to adjourn to March 18 th, 2004 constitutes a waiver of the time period for the purposes of s. 11(b of the Charter. In R. v. Morin (supra, Sopinka J. at pg. 773 states, If by agreement or conduct the accused has waived any part of this time period, the length of the period of delay will be reduced accordingly. With respect to the November 2003 to March 2004 adjournment, the defence readily agreed to the period of adjournment. That agreement, however, ought to be placed in context. The context is that the adjournment was necessitated by the outstanding disclosure request. The period of adjournment was solely for the purpose of the prosecution providing the defence with a response to the outstanding request. As the March 18 th, 2004 trial date approached there had been no response from the prosecution either to the issue as spoken to in court on November 24 th or to the written follow-up of December 9 th, 2003. On March 1 st, 2004, the defence filed its first Notice of Charter Application. This Application was, at least in part, anticipatory as to the period of delay. The defence s December 9 th, 2003 disclosure communication had forewarned that, in the event the disclosure request was not complied with the defence would be seeking an adjournment of the trial. In that sense, the defence s concurrence with the adjournment from November to March was conditional on having the disclosure request dealt with. It was not dealt with. The prosecution has put forward no reasons why not. It appears to be the simplest of disclosure issues, a one-page photocopy of the police officer s copy of the ticket on which appear certain markings. These markings did not appear on the Offence Notice served on the defendant. The markings appear to be notations in the form of abbreviations the Officer made to prompt his recollection at a later date if required to answer questions about the ticket. Such notes would be relevant to making out the case against the defendant and therefore relevant to the defendant knowing the case that he would have to meet. A reasonable inference could be drawn regarding the meaning of the notations but the defence should not be required to rely on inference when the Officer is readily available to provide definitive clarification. The prosecution has to bear the greater responsibility for the delay of this adjournment period. The adjournment was granted because disclosure was not complete. The period of adjournment expired without the disclosure request being responded to.
6 Accordingly, the time period that this Court is being asked to consider regarding the issue of the reasonableness of delay is from April 14 th, 2003 to March 18 th, 2004, a period of eleven months and four days, the burden of which falls to the City of Toronto which has responsibility for both courts administration and Part I prosecutions. 3. Reasons for the Delay a Time Requirements of the Case Neither party cited the time requirements for this case as contributing to the delay. In fact, this type of case might be appropriately described as the most routine of minor traffic infractions with numerous courts in Toronto dealing with the trials of hundreds of such matters daily. b Actions of the Accused The actions of the accused have been consistent with the requirements of the Provincial Offences Act and with the spirit of the Act insofar as it creates a framework for speedy justice. As noted by Libman, J. in R. v. Farokhshadfar, [2001] O.J. No. 6015, at para. 8, The very short time lines that govern under the Provincial Offences Act make it clear that speedy justice is the hallmark of proceedings under this Act. The defendant filed his request for a trial within 15 days. It then took the City s courts administration four months and three weeks to serve him with the Notice of Trial. Having received that Notice the defendant retained a commercial agent and, relatively promptly, made a request for disclosure. Having received initial disclosure the defendant promptly filed a written request for clarification of the disclosure and for any further disclosure that may be available. Following the November 24 th adjournment the defendant sought clarification of information from the police officer and when advised to put the request in writing promptly did so. As the March 18 th second trial date approached the defendant raised the issue of unreasonable delay in an anticipatory way by filing a Notice of Charter Application in accordance with s. 109 of the Courts of Justice Act, alerting the prosecution to the possible implications of not replying to the matter of disclosure. Finally, being perhaps overly thorough, the defence again served and filed a Notice of Charter Application in a timely manner for the August 6 th, 2004 date. The actions of the defence reflect a determination to have a trial and to meet its obligations to prepare for trial in a way that does not contribute to delay. c Actions of the Crown Pursuant to s. 162(1(b of the P.O.A., the City of Toronto is responsible for prosecuting matters proceeding under Part I of that Act and for administering the courts and for providing the administrative support to the courts in which such matters are heard. In these matters, the City of Toronto represents the interests of the Crown.
7 The court office required 4 months and 3 weeks to serve the defendant with a simple Notice of Trial. An issue for resolution on another date is whether this complies with the requirements of s. 5.1(5 of the P.O.A. particularly when compared to the requirement set out in s. 5(2. That section was interpreted by Libman, J. in R. v. Farokhshadfar supra who states: 5 The section is instructive in it's wording given that the Clerk of the Court has the obligation, quote, "as soon as is practicable", quote, "to give notice to the defendant and prosecutor of the time and place of trial." Justice Howden held in Regina v. Kwoon (1999, 50 M.V.R. (2d 94 that, "there is no power conferred upon a Justice of the Peace to quash a certificate of offence due to administrative laxity or delay", as he put it under section 5(2. However, he noted that the rights of the defendant to be tried within a reasonable time are protected by section 11(b of the Charter. And that any administrative delay in giving the Notice of Trial can be taken into account in that manner. 6 Clearly, here, a period of delay of almost 10 months in sending out a single piece of paper indicating a Notice of Trial, when the defendant is required to give intention to elect a trial mode within 15 days is manifestly excessive. While the defence did not ask this Court to consider the period prior to the serving of the Notice of Trial, that is up to September 11 th, 2003, as contributing to or constituting part of the delay for the purposes of its Charter Application, it is noteworthy that that delay abbreviated the defence s preparation time. In the circumstances of this case, with more lead time the disclosure issue might very well have been resolved prior to November 24 th, 2003. d Institutional limitations The defence argues that the Court should recognize the distinction that this is a matter initiated under Part I of the Provincial Offences Act and, as such, the responsibility for conducting the prosecution is that of the City of Toronto. As mentioned, the City of Toronto also has responsibility for courts administration including the initial responsibility for setting trial dates upon receipt of a Notice of Intention to Appear. There is a line of cases establishing what constitutes a reasonable period for a matter under Part I of the P.O.A. to come on for trial. This was provided by Sheppard, J. in R. v. Mastroianni, [2000] O.J. No. 3227, at para. 10: The Court reminds itself, and of course is bound by the decisions of the Supreme Court of Canada in Askov and Morin, but will also remind itself of what the Ontario Court of Appeal has said in the summary conviction Askov application in R. v. Gregory McMillan, 65 C.C.C. (3d 321. That is to say that summary matters which are to proceed in their entirety in the then Provincial Division (as it then was, ought to be proceeded with within six months of set date. All time runs from the offence date, the appellant courts have said. Her Honour Shimai in R. v. Omarzadah relied on both Justices Sheppard and Libman in this regard in stating: 9 Mr. Justice Libman, also sitting on appeals in Provincial Offences, takes the view that a reasonable time for the trial of a Provincial Offences matter is more stringent than the time which might be permitted in criminal cases.
8 10 He says, and I quote, "The very short time lines that govern under the Provincial Offences Act make it clear that speedy justice is the hallmark of proceedings under this Act." 11 That is from the case provided in the record here, R. v. Farokhshadfar, [2001] O.J. No. 6015, decided April 6, 2001. 12 Mr. Justice Sheppard took the same view in Mastroianni. I quote, "The courts have set stricter limits for the more minor matters which should be easier to prove and are not as complex." These rulings in Provincial Offences Appeals regarding delay, as qualified by the endorsement by Mr. Justice Doherty in R. v. Omarzadah supra, are followed here. While not presumptively unreasonable, any delay beyond six months must be weighed in light of the factors enumerated in R. v. Morin. The examples set out by Doherty J. are those such as stigma to the accused and institutional allocation of resources according to priority matters. On this latter point this Court considers the arguments advanced on behalf of the defence to be compelling. The prosecution was called upon to provide disclosure in this, the simplest of speeding matters. In comparison to all other matters that the courts of this Province are called upon to deal with such a case would properly rank nearer to the bottom than to the top of the hierarchy. However, in comparison to the matters that the City of Toronto is called upon to prosecute, this case is in the mainstream of its order of magnitude. As stated by the agent on behalf of Mr. Rowan, This is what they do. The City s prosecutorial resources and the time and attention of its staff are directed towards precisely these matters. Responding to disclosure requests and correcting any disclosure problems particularly when they occur close to a scheduled trial date could reasonably be expected to be a priority and the type of matter to which the institution, in this case the City of Toronto s prosecutor s office, would pay close attention. In this case, following initial disclosure, the defence made a reasonable request for clarification on four occasions: in writing on November 11 th, 2003, orally in court and outside court to the police officer on November 24 th, 2003, in writing on December 9 th, 2003 and, implicitly, in its Charter Application on March 1 st. To date, there has not been a reply or any explanation for the lack of reply. 4. Prejudice to the Accused In Omarzadah, Doherty, J.A. noted, It must be acknowledged that any stigma arising out of the delay in the trial of charges like speeding is virtually non-existent. Without seeking to resolve the distinction that might be drawn between stigma and prejudice, Libman, J. in Farokhshadfar observed, The issue of prejudice is only one factor to take into account. Here there was a serious systemic issue that arose The serious systemic issue that arises in this matter is the lack of responsiveness to the repeated requests to obtain clarification on the disclosure. Given the simplicity of the request, the lack of onerousness that complying would impose and that the case is of a type that should rank as a priority for the City s prosecutorial office the prejudice to the accused, however slight that prejudice may objectively be perceived to be, takes on greater significance. In other words, if there is prejudice it must be given some weight.
9 Mr. Justice Sheppard in R. v. Mastroianni observed that there is always prejudice to an individual when charged with an offence. Beyond that prejudice, Mr. Rowan is charged with speeding 19 kilometres per hour in excess of the speed limit. Applying the rationale of Mr. Justice Lampkin in R. v. Weber, 64 O.R. (3d 126, Mr. Rowan would be liable upon conviction following trial to a fine of no more than $57.00 plus $5.00 costs. He would also incur 3 demerit points on his driver s record with the Ministry of Transport. While there may be no stigma attached to conviction for a charge of speeding, there are penalties. While many people may consider such penalties to be of little consequence, Mr. Rowan s personal and perhaps subjective concern for the implications of a conviction are reflected in his having sought a trial in the first instance, incurred the expense of engaging a commercial agent to represent him, having that agent appear on his behalf in court on three occasions and having diligently pursued perfecting his defence through repeated requests for disclosure. Mr. Rowan s ability to defend himself against conviction was impaired by the prosecution s failure to deal effectively with the disclosure requests in a timely way thereby exacerbating the prejudice. 5. Societal interest in this matter The Legislature of Ontario created a process intended, in principle, to achieve speedy resolution of relatively minor regulatory infractions. Stated simply, simpler matters should be simpler, speedier and less costly to resolve. As per Sopinka, J. in R. v. Morin and Doherty, J. in R. v. Omarzadah, the right under the Charter to trial within a reasonable time should be interpreted in light of such principles. Nowhere has it been argued that the objective of speedier justice means that a defendant s procedural rights are not to be safeguarded, including the right to disclosure by the Crown of relevant information. This particular case became unnecessarily protracted with the failure of the prosecutor s office to respond to the further disclosure requests at all, let alone in a speedy manner. CONCLUSION: Two trial dates were set in this matter involving a delay of 11 months. That delay is due to institutional and prosecutorial actions or lack thereof. Given the relative simplicity of the case, the efforts made by the defence to move the matter along and given that the defence is still not in a position to proceed to trial in the absence of that disclosure, Mr. Rowan s right to be tried within a reasonable time has been infringed. No sufficient reasons have been provided justifying that infringement. Therefore, Mr. Rowan has satisfied the Court that he is entitled to a ruling that his right under s. 11 (b of the Canadian Charter of Rights and Freedoms has been denied and that he is entitled to an appropriate remedy. Released: August 16, 2004 Signed: Justice of the Peace M. H. Conacher