



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2020 ONCA 609

DATE: 20200930

DOCKET: C67134 and C67136

Strathy C.J.O., Gillese and Watt
    JJ.A.

DOCKET:
    C67134

BETWEEN

Her Majesty the Queen

Respondent

and

Phuong Nguyen

Appellant

DOCKET: C67136

AND BETWEEN

Her Majesty the Queen

Respondent

and

Leonardo Graci

Appellant

Tiran Diran Tutunjian, for the
    appellants

Chris G. Bendick, for the respondent Her
    Majesty the Queen ex rel. the Regional Municipality of York

Heard: in writing

On appeal from the decision of Justice
    Mary E. Misener of the Ontario Court of Justice dated April 18, 2019, dismissing
    the appeal from conviction entered on May 22, 2018, by Justice of the Peace
Marie-Christine
Smythe of the Ontario Court of Justice (C67134).

On appeal from the decision of Justice
    Mary E. Misener of the Ontario Court of Justice dated April 18, 2019, dismissing
    the appeal from conviction entered on May 14, 2018, by Justice of the Peace Rhonda
    Shousterman of the Ontario Court of Justice (C67136).

Gillese J.A
.:

[1]

These appeals raise the following questions
    about s. 11(b) applications in proceedings under Part 1 of the
Provincial
    Offences Act
, R.S.O. 1990, c. P.33 (the 
POA
):

1. Is 18 months the presumptive ceiling for Part I
POA
proceedings?

2. Are the Appellants entitled to a stay of proceedings despite the
    delay being less than the presumptive ceiling?

[2]

As I explain below, my answer to the first
    question is yes and to the second is no. Accordingly, I would dismiss the
    appeals.

Background in Brief

[3]

On March 8, 2017, Leonardo Graci was charged
    under the
Highway Traffic Act
, R.S.O. 1990, c. H.8 (the 
HTA

)

with speeding 80 km/h in a posted 60 km/h zone.

[4]

On April 12, 2017, Phuong Nguyen was charged
    under the
HTA

with failing to stop at a red light.

[5]

Both Mr. Graci and Mr. Nguyen (together, the
    Appellants) requested a trial date, received a Notice of Trial in the mail,
    ordered and received disclosure, and then filed a s. 11(b)
Charter
application that was returnable on their trial date.

[6]

Justice of the Peace Shousterman heard and
    dismissed Mr. Gracis s. 11(b) application on May 14, 2018. Following a trial,
    Mr. Graci was convicted of speeding, pursuant to s. 128 of the
HTA
. He
    was fined $90 and given 30 days to pay the fine.

[7]

Justice of the Peace Smythe heard and dismissed
    Mr. Nguyens s. 11(b) application on May 22, 2018. Following a trial, Mr.
    Nguyen was convicted of failing to stop at a red light, pursuant to s. 144 of
    the
HTA
.
He was fined $260 and given five months to pay the
    fine.

[8]

Messrs. Gracie and Nguyen brought appeals
    against the dismissal of their s. 11(b) applications and convictions.

The Summary Conviction Appeals

[9]

The appeals were heard together by Misener J. of
    the Ontario Court of Justice (the Appeals Judge). On April 18, 2019, the
    Appeals Judge released reasons for judgment in which she dismissed the appeals
    (the Reasons Below).

[10]

The Appeals Judge first addressed the question
    of what presumptive ceiling applied to Part I
POA

proceedings.
    In this regard, she declined to follow
York (Regional Municipality) v. Tomovski
,
2017 ONCJ 785 (leave to appeal to Ont. C.A. refused, 2018 ONCA 57). In
Tomovski
,
    the court held that the 18-month presumptive ceiling set out in
R. v.
    Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, did not apply to proceedings under
    Part I of the
POA
and that a lower case specific presumptive ceiling
    ought to be imposed. In
Tomovski
, a ceiling of 14 months was set,
    above which delay was presumed to be unreasonable.

[11]

In the Appeals Judges view,
Jordan

clearly
    held that the ceiling for matters proceeding in provincial court is 18 months
    and Part I offences are proceedings in the provincial court (para. 15, Reasons
    Below). She gave compelling reasons for her view, including that differing
    presumptive ceilings would represent a return to the litigation-generating
    uncertainty of
Morin
 (para. 21, Reasons Below).

[12]

The Appeals Judge then dealt with whether the
    Appellants were entitled to a stay of proceedings despite the delay being less
    than the presumptive ceiling. The net delay for Mr. Graci was 12 months and 12
    days and the net delay for Mr. Nguyen was 13 months and 10 days. As the delays
    were less than the presumptive ceiling, the Appellants had the burden to
    establish that (1) they took steps to move their cases along and (2) their cases
    took markedly longer than they reasonably should have.

[13]

Before the Appeals Judge, the Appellants argued
    that the justices of the peace held them to a standard of perfection, rather
    than of reasonableness, when considering whether they had taken meaningful efforts
    to move their cases along. The Appeals Judge disagreed, expressly accepting the
    findings of the justices of the peace that the Appellants had done nothing to
    secure earlier trial dates.

[14]

The Appeals Judge also rejected the Appellants
    submission that, because proceedings for Part I offences are straightforward,
    anything in excess of 10-11 months from offence date to trial is markedly
    longer than is reasonable. The Appeals Judge acknowledged that Part I
    proceedings are simple and streamlined. However, she noted, the test for
    whether a case takes markedly longer than reasonable, as set out in
Jordan
,
directs the court to consider a variety of factors including case
    complexity, local considerations, and whether the Crown took reasonable steps
    to expedite the proceedings. Further, trial judges are directed to use their
    knowledge of their own jurisdictions local and systemic considerations and the
    length of time a similar case typically takes to reach trial in assessing the
    reasonableness of the time to trial in cases where the delay is below the
    ceiling.

[15]

The Appeals Judge observed that the justices of
    the peace who tried the Appellants cases regularly preside in the jurisdiction
    and were capable of quickly applying their extensive knowledge of local conditions
    and their experience with similar cases to assess the delays in the cases before
    them.

[16]

The Appeals Judge then dealt with whether the
    Crown had taken reasonable steps to expedite the process. The Appellants
    submitted that it had not because it failed to offer earlier trial dates after
    being served with the s. 11(b) applications.

[17]

The Appeals Judge disagreed. She saw no error on
    the part of the justices of the peace in concluding that the prosecutions had
    not taken markedly longer than usual. She observed that the Appellants had been
    provided with the earliest available trial dates after they filed their Notices
    of Intention to Appeal and that those dates were well below the presumptive
    ceiling. She stated that the filing of a s. 11(b) application did not trigger
    an obligation on the prosecution to obtain earlier dates and noted that the
    prosecution was ready to proceed on the first trial date, having provided the
    Appellants with timely disclosure. She concluded that the prosecution acted
    reasonably in expediting the matters.

[18]

Accordingly, the Appeals Judge dismissed the
    summary conviction appeals.

The Issues

[19]

The Appellants raise the following issues:

1.
Does the 18-month presumptive ceiling
    established in
Jordan
apply to proceedings under Part 1 of the
POA

or should the ceiling be lower?

2.
Are the Appellants entitled to stays
    despite the delays being below the presumptive ceiling?

Issue #1:  18 months is the presumptive
    ceiling for Part I
POA
proceedings

The Parties
    Positions

[20]

The Appellants position on this issue can be
    summarized as follows. In setting the 18-month presumptive ceiling for criminal
    cases in provincial courts,
Jordan

made no reference to if, or
    how, the presumptive ceiling would apply to
POA

proceedings.
    They say that the 18-month presumptive ceiling established in
Jordan

was premised on factors that do not  or minimally  apply to such proceedings.
    As the
POA
was meant to provide a speedy, streamlined procedure for
    regulatory offences, the Appellants contend that a lower presumptive ceiling
    for such matters is warranted.

[21]

The Crown submits that
R. v. K.J.M.
,
2019 SCC 55,

a decision of the Supreme Court of Canada released
    after the appeals in this matter were decided, is a full answer to the
    Appellants contention. It says that
K.J.M.
makes it clear that the
    presumptive ceiling for all provincial court proceedings is 18 months.

Analysis

[22]

I accept the Crowns submission on this issue.

[23]

In
K.J.M.
, the Supreme Court considered
    whether the presumptive ceilings in
Jordan

apply to youth
    justice court proceedings. Justice Moldaver, writing for the majority,
    concluded that they did. While Moldaver J. acknowledged the many reasons why
    youth matters should proceed expeditiously, he found there was no need to
    introduce a lower presumptive ceiling for such matters.

[24]

At para. 65 of
K.J.M.
,
Moldaver
    J. states that
Jordan

established uniform ceilings irrespective
    of the varying degrees of prejudice that might be experienced by different
    groups and individuals. He explains that setting different ceilings would
    quickly become impracticable. Moreover, he concludes, setting different ceilings
    would be incompatible with the uniform-ceiling approach adopted in
Jordan

and would undermine its objective of simplifying and streamlining the s.
    11(b) framework.

[25]

In
K.J.M.
,
the Supreme Court reasoned
    that the creation of a separate criminal justice system, which codifies the
    need for timeliness in youth cases, does not justify the use of a different
    presumptive ceiling. That same reasoning applies to proceedings under Part I of
    the
POA
.

[26]

The language in
K.J.M.
is categorical: the
    ceilings established in
Jordan

apply uniformly. Accordingly, while
    the
POA

is intended to provide a speedy and efficient process
    for dealing with regulatory offences, the 18-month presumptive ceiling for
    single-stage provincial court proceedings established in
Jordan

applies
    to proceedings under Part 1.

Issue #2:     Neither Appellant is entitled
    to a stay of proceedings

[27]

These appeals were conducted in writing. The Appellants
    factum focuses almost exclusively on the first issue. Their arguments on this,
    the second issue, are cursory. They basically amount to a reiteration of the
    complaints that they advanced in the appeals court below, although the
    complaints are now levied against the decision of the Appeals Judge rather than
    those of the justices of the peace.

[28]

The Appellants say that the Appeals Judge erred
    by holding them to a standard of perfection, rather than reasonableness, when
    considering their efforts to move their cases along. They repeat their
    complaint that the prosecution took no steps to mitigate the delay once served
    with notices of the s. 11(b) applications. And, the Appellants submit, it
    should not have taken more than 11-12 months from the offence dates to bring
    the Appellants to trial.

[29]

I see no basis on which to interfere with the
    decisions under appeal. The Appeals Judge carefully reviewed the determinations
    of the justices of the peace on the issues of whether the Appellants took
    meaningful steps to move their cases along and whether their cases took
    markedly longer than they reasonably should have. In her reasons, the Appeals
    Judge thoroughly addresses the Appellants complaints relating to those
    determinations. I agree with her determinations and with the reasons that she
    gave for them.

[30]

As I have summarized the reasons of the Appeals
    Judge above, I will not repeat them here. Suffice to say that in her reasons,
    the Appeals Judge correctly articulates and applies the governing legal
    principles to unimpeachable factual findings. She made no error in concluding
    that the Appellants had failed to take reasonable steps to move their cases
    along or that their cases had not taken markedly longer than they reasonably should
    have.

Disposition

[31]

Accordingly, I would dismiss the appeals.

Released: September 30, 2020 (G.R.S.)

E.E. Gillese
    J.A.

I agree.
    G.R. Strathy C.J.O.

I agree.
    David Watt J.A.


