(Ontario Court of Justice, released September 15, 2011)
Provincial Offences Act – Canadian
Charter of Rights and Freedoms section 11(b) – Part
I Offences – Unreasonable Delay
The question of constitutionally tolerable delay with respect to
the prosecution of minor regulatory and human welfare offences
under the Provincial Offences Act, R.S.O., 1990, c. P.33
("POA") has been the source of much
recent debate.1 In this most recent judicial
installment, Justice Libman of the Ontario Court of Justice
dismissed two appeals and upheld the decisions to stay charges
under the Highway Traffic Act, R.S.O. 1990 c.H.8
("HTA") as a result of violations of the
defendants' 11(b) rights under the Canadian Charter of
Rights and Freedoms
Section 11(b) of the Charter provides that every person
charged with an offence is entitled to be "tried within a
reasonable time". The Supreme Court has found that the 11(b)
Charter right protects both the individual interest of an
accused person, including: (a) the right to security of the person
by minimizing anxiety, concern and stigma, (b) the right to liberty
by limiting pre-trial custody, and (c) the right to a fair trial by
proceeding when evidence is fresh, and a societal interest in
having matters dealt with according to law and in an expeditious
manner to enhance public confidence in the judicial
There is a long line of jurisprudence with respect to assessing
the reasonableness of delay for criminal matters. As a first step,
courts consider the total length of the delay and the reason for
the delay to determine whether the delay should be discounted. The
second step is to weigh the delay as against factors including the
severity of the charge, complexity of the matter, and prejudice
suffered. These factors are then weighed against a guideline for
tolerable delay which, for criminal matters in the provincial
court, has been determined to be 8–10 months.
The guideline does not include delay as a result of the
"intake period" which reflects the amount of time for a
matter to be set down for trial.
There are several key differences between criminal prosecutions
and prosecutions under Part I of the POA. Criminal prosecutions are
typically more serious, carry greater stigma, are the source of
greater anxiety to defendants, and are more complicated and time
consuming to dispose of than POA proceedings. There is also a
greater societal interest in having criminal matters heard on the
merits. Part I of the POA, on the other hand, was devised as a
mechanism for "speedy justice" for minor offences for
which the defendant may, at most, receive a fine and where there is
minimal, if any, stigma or prejudice caused by delay. The POA is
also the place where most people will experience the justice
system. In 2010, 600,000 criminal charges as compared to over 2
million POA charges were laid.
Justice Libman concluded that with respect to POA Part I
prosecutions, an intake period of 30–45 days was
appropriate as a result of strict legislative timelines imposed for
POA matters. He then concluded that a guideline of
8–9 months for delay is constitutionally
tolerable systemic or institutional delay. As both matters fell
outside of this guideline, the decision of the trial judges to stay
the charges was upheld.
On November 21, 2011, the Court of Appeal for Ontario will hear
the matter of R. v. Vellone, 2009 ONCJ 150, leave to
appeal granted,  O.J. No. 1607 (C.A.), where the application
of section 11(b) to POA Part I offences will again be
1. See Ontario Law Commission, Modernizing the Provincial
Offences Act: A New Framework and Other Reforms (Interim Report,
March 2011) (Toronto: Law Commission of Ontario, 2011)
2. R. v. Morin,  1 S.C.R. 771 at paras.
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