Associate Chief Justice Krahn decides in favor of self represented accused in delay motion for unreasonable delay (Charter 11b)

manitobalawcourts408york
Manitoba Law Courts 408 York Avenue, Winnipeg, Manitoba
Oct 30 2016 – Kevin Yaworski – Concerned Citizen and Active WiseUpWinnipeg Member – http://wp.me/p1fJaD-Fw

Sorry for the delay in posting this. I noticed today from my blog stats and referrals that several people have been searching on the internet for “kevin yaworski decision” or “kevin yaworski court” and this past Monday I had said I would post the written decision when I got it on Fri (Oct 28th).  I wanted to finish reviewing the decision to summarize and comment on it.  Also it is 18 pages long and I have not had much free time until now.

This decision is significant for several important reasons but before I go into these here is some context for those not following this story already.

In May of this year CBC, CTV news and other media in Winnipeg covered the R v. Grant (MBPC) decision where an alleged speeding offense was stayed due to unreasonable delay to go to trial.  Judge Harvie’s decision stated four to six months to go to trial is reasonable for simple traffic matters.  In this and many others cases in the MB Summary Convictions Court (MBSC aka Traffic or Parking Court) this was far exceeded and in some cases over 24 months or more.

 CBC and CTV interviewed MB Deputy Premier; Justice Minister and Attorney General Heather Stefanson regarding these delays of up to 24 months or more and cases being stayed or dismissed.  She basically said they were open to ideas to help reduce the delays but then ignored the ones that would address the root causes.  More on this below.
They also interviewed me and others with alleged traffic offenses and long delays.  In my case it was a simple traffic matter regarding an alleged speeding offense (WPS Officer issued ticket for 53 kph in what I and engineers feel is an artificially reduced 30 kph School Zone) and unreasonable delay (over 18 months).

Winnipeg drivers hopeful ruling means their traffic tickets will be tossed, too

Then the media covered a second simple traffic matter (alleged speeding offense) begin stayed due to unreasonable delay in R v. Segodnia and Judge Devine said 6 months for simple traffic matters is reasonable.

Delay gets ticket thrown out – Second instance in which judge rejects case because it took too long to get to trial

Then within 30 days (I believe it was at or near the end of the max 30 days allowed) the Crown on behalf of the Province of Manitoba enters an application to appeal the Grant decision.

Then R. v. Jordan – Supreme Court of Canada (SCC) decision is released which strengthens Canadian Charter of Rights – Section 11b (right to a trial in a reasonable amount of time) by setting a ceiling of 18 months for criminal matters at Provincial Court and suggests less for others like simple traffic matters.  It also requires the courts to presume the accused prejudiced by the unreasonable delay.

The application for appeal of R v. Grant is not heard until August and is allowed to be heard but not scheduled till February 2017.  It was allowed to be heard even though it could be argued the recent Jordan SCC ruling provides enough to deny it.  I assume it was allowed because Jordan is in transition.  Hopefully ACJ Krahn’s decision which clarifies this issue even more, addresses this and the appeal will be denied.

ACJ Krahn’s decision is significant for several important reasons some of which listed below and it is imperative we get this out to more of the public so more can stand up for their rights.  Doing this will also help address the root cause of the delays and put a stop to the obvious abuse of the public in the name of $afety that we have well documented.  Please share this with others online and by word of mouth.

I represented myself and filed a delay motion application with charter 11b challenge (unreasonable delay to go to trial) and it was heard on Tuesday September 20th in front of Associate Chief Justice Krahn (MBPC).  I presented a large amount of evidence and arguments and had to defend against the Crown’s evidence and arguments which resulted in the hearing being over two hours long.  Future hearings that rely on this and the other decisions should not take this long.

With this successfull decision other accused can rely on it, the two others before it plus other case law.  i.e. the bulk of the work has been done so future delay motion hearings should not take nearly as long plus once enough people do this the Province will be forced to just stay or dismiss the tens of thousands of cases in the system for simple traffic matters that are unreasonably delayed by 4 to 6 months or more.  Most importantly they will need to address the root cause of the delays which are known and which WiseUpWinnipeg, myself and others have been asking them and the City to do for many years.  The aggressive targeting of known or created traffic engineering deficiencies by WPS and third party for profit photo enforcement partner ACS / Xerox.

During my hearing after I closed ACJ Krahn had some important questions for me related to how she “could fulfill my requests as this could affect a lot of other offenses including more serious ones like DUI’s as has happened in thousands of cases in Ontario”.  I said I agreed that this was serious and that she needs to send a strong message to the City and Province that the courts will not tolerate being used to abuse the public.  I suggested she try and find a balance.  She said “I have a lot to consider so am reserving my decision” and it was agreed to return on Oct 24th.

ACJ Krahn read the lengthy decision in court on Mon Oct 24th and I received the written version late the following Friday afternoon.

She found in my favor and entered a judicial stay of proceeding due to unreasonable delay of over 18 months.

This decision is significant for several important reasons and here is just some of them.

It will almost surely mean the Crown’s (Provinces) appeal of R. vs. Grant will not be successful and it may even be dropped by the Crown.

ACJ Krahn mentioned several important points in her decision related to the cause of institutional delay being known; rapid upward trend in number of photo enforcement violations; concerning trend with failure of the Crown to disclosure evidence (Section 7 Charter Right); the upward trend and very large volume of offenses along with the delay are causing the public to lose confidence in the courts which is concerning; the Crown can’t wait until a delay motion application with 11b received to offer earlier trial date (it still considered a unreasonable delay) and much more.

The Crown tried to use the above CBC story and several of my blog and Facebook posts related to these matters against me to try and defeat my motion and I defended against these.

The decision already forwarded to several defense lawyers that are very excited about the decision and plan to reply on it as well as R. v. Grant and R. v. Segodnia for other delay motions they will be representing.  I relied on R. v. Jordan (SCC) as well.

Anyone can rely on these and other decisions and caselaw if the delay to go to their trial is more than 4 to 6 months for a simple traffic matters.

Myself and others at WiseUpWinnipeg do not encourage anyone try and use this experience or anything else we share to try and avoid taking responsibility for their actions that they know they are at fault for.  It is best to learn from ones mistakes and be a better person for it.

That said there is a lot of evidence, information and more that would prove or indicate the vast majority of alleged traffic and parking offenses being issued and have been issued in that last several years in Winnipeg are unfair or unlawful; That many of the accused that choose to contest these (approx 25% and growing) are often treated unfairly or not as required in the MB Court Directives or even unlawfully.  That several million dollars worth of alleged traffic and parking offenses where stayed due to being proven in court and with FIPPA requests to be unlawful (in breach of the HTA and other legislation or bylaws).  In these cases the City or Province did not refund the accused that paid tickets in good faith that were unlawful for the same reasons.

This has to stop and these should be refunded.  With the public’s help we can help get these refunds and stop this unlawful or unfair treatment of the public.

More info on what you can do below.

——–

Below is a link to the R. v. Yaworski MBPC Decision

I would like to comment on a few specific things in the decision.  First ACJ Krahn said when I became aware of the information on my blog and FaceBook posts that was being misinterpreted that I removed it.  I actually updated it to reword and include the information that the Crown provided.  i.e. Jordan (SCC) says the Crown and accused must both make an effort to bring the matter to trial in a reasonable amount time.  The accused gets a letter by post with trial date after pleading not guilty to alledged traffic offense and it is assumed they would be contacted by post if an earlier date available.  This reinforced in the decision for my case as well as Segodnia and Grant.

I have more comments to add regarding other important points in this decision as well as arguments I made during the hearing that were not objected to by the Crown or ACJ Krahn but did not end up in her decision.  I will update when I have more time.  I also have a detailed journal entry with much more detail from the application hearing, the motion hearing and related which I will proof read and post.  It will be save the cost of ordering many pages of the transcript (over two hour hearing) and will help others prepare for similar motions so stay tuned if you interested or pm me on Facebook.

Here is more regarding OUR Deputy Premier; Justice Minister and AG Heather Stefanson’s comment that she was open to ideas to address the delays in MBSCC of 24 months or more after the Grant decision.  I was encouraged by this and after learning about a serious sexual assault conviction in MB being overturned due to unreasonable delay I sent an email to her and the Premier and others senior officials involved on Aug 19th highlighting the root cause of the delays in MBPC, the impact this was having and what was needed to address them.  I didn’t get a response till Oct 3 and it was a typical political response avoiding almost all the serious issues. I will update this with a link to a post with my email and her response.  In the mean time it can be found by searching the WiseUpWinnipeg group for Heather Stefanson and look for posts from me.
———

Find  Below a summary of the R v. Grant and R v. Segodnia MPBC decisions and links to the full decisions as well as news coverage of these decisions.

To learn more about filing a delay motion with charter 11b challenge

Here is a summary of the R v. Grant and R v. Segodnia MPBC decisions and links to the full decisions.

Two MB Justices decided to not turn a blind eye to the facts or not ignore or misinterpret charter right like many others have in at least MBSC.

The attached files from recent MBSC decisions regarding unreasonable delay to go to trial (charter 11b) along with the third one above set a pretty clear precedent.

The decisions clearly state:
“8 to 10 months far exceeds” our charter rights to a trial in a reasonable time. It also states 4-6 months is a reasonable amount of time.
“The Crown cannot rely on the eight to ten months guideline set for criminal matters in the highway traffic context”
“Highway traffic matters lingering in the courts and gathering dust are in no ones interest.”
Mr. Segodnia’s right to have a trial within a reasonable time protected by section 11(b) of the Charger has been breached. The offence is stayed pursuant to section 24(1) of the Charter.”

Thanks to Todd Dube, Mrs Grant, Mr Buchart, Provincial Justice (PJ) Kate Harvie, J.Segodnia, PJ Devine, Inderjit Singh and the others involved in these and related cases. These individuals had the moral back bone to do the right thing.

This abuse has been one of many issues ongoing on for several years now and these are just the start of better exposing this and related abuses.

For Photo Radar issue traffic ticket
2016-05-18 R v Grant (Askov delay motion decision) (ManProvCt)

https://keviny1.files.wordpress.com/2016/05/2016-05-18-r-v-grant-askov-delay-motion-decision-manprovct.pdf

For Police issued traffic ticket
R v Segodnia, 2016 MBPC 29
R v Segodnia, 2016 MBPC 29

https://keviny1.files.wordpress.com/2016/05/r-v-segodnia-2016-mbpc-29.pdf

————————————————–

News coverage of the first two successful MB delay  motions for traffic tickets followed by more info and news coverage on the third successful decision.
Get a court date for a traffic ticket older than four to six months? Here’s your trump card
http://www.metronews.ca/news/winnipeg/2016/05/18/winnipeg-group-celebrates-speed-ticket-dismissed-for-delay.html?cq_ck=1463605986425

Manitoba judge throws out speeding ticket after court delays
Winnipeg woman waited 18 months for court date after alleged speeding incident
http://www.cbc.ca/news/canada/manitoba/manitoba-judge-throws-out-speeding-ticket-after-court-delays-1.3588269

Decision could affect photo radar tickets
Wrong title. Should have said
Decision will affect all simple traffic tickets with delay of more than 4-6 months
http://winnipeg.ctvnews.ca/video?clipId=873327

Winnipeg drivers hopeful ruling means their traffic tickets will be tossed, too
http://www.cbc.ca/news/canada/manitoba/winnipeg-drivers-ruling-traffic-tickets-tossed-1.3590169

Photo Radar Court backlog decried
** Decision will affect all simple traffic tickets with delay of more than 4-6 months
http://winnipeg.ctvnews.ca/video?clipId=874342&binId=1.1164782

Manitoba judge throws out 2nd speeding ticket citing court backlog
This says 2nd but the Provincial Justices full statements attached above list more than just the 2 minor traffic cases that were delay and stayed due to breach of charter 11b.

http://www.cbc.ca/beta/news/canada/manitoba/manitoba-judge-throws-out-2nd-traffic-ticket-citing-backlog-1.3598233

 


I hope this third decision and media coverage help more people get informed of this abuse and it leads to more people standing up against it and the root causes of the delays addressed.

I had a lot of help with this hearing because I relied on the two previous decisions and other case law as well as a bit of help from other WiseUpWinnipeg members and the media when dealing with the City, Province, WPS, FIPPA requests and Ombudsman and more.  This all helped me get informed and take actions that lead up to this important hearing and decision.  There is a lot more going on as well from other members, other court actions, university research papers being worked on and even RCMP investigations.  This abuse will end and hopefully with more help from the public sooner than later.

Here is the news coverage if you want to share with others that have got unfair or unlawful traffic or parking tickets.  It proven the vast majority of these tickets issued in Winnipeg are unfair or unlawful for many reasons well documented by WiseUpWinnipeg, the media and by some in the general public.  Once more people stand up for their rights as well as fair and lawful treatment this abuse with end.

Here is the coverage online so far.

CBC TV Manitoba Eve News on Nov 1st.

http://www.cbc.ca/player/play/798701123727

This piece runs at the 8:00 minute mark (when I have time I will split out)

 

Another speeding ticket dismissed because it took too long to get to court

http://www.cbc.ca/news/canada/manitoba/another-speeding-ticket-dismissed-because-it-took-too-long-to-get-to-court-1.3830481

Manitoba Judge Tosses Another Speeding ticket (Video)

http://winnipeg.ctvnews.ca/manitoba-judge-tosses-another-speeding-ticket-1.3139338

Judge tosses ticket due to back log in system

http://winnipeg.ctvnews.ca/video?clipId=984431

To share this blog post online: http://wp.me/p1fJaD-Fw

——————

Kevin Yaworski

Concerned Citizen and Core WiseUpWinnipeg Member

www.wiseupwinnipeg.com
We Advocate for Fair and Lawful Traffic Enforcement, Related Public Safety and Public Service Accountability.  We have over 7000 members, high active participation rate, are growing rapidly and have many more online viewers.

www.yaworski.net

Twitter: @kyaworski

About Kevin Yaworski

I use my blog to write about things I find interesting or that I think are matter of public interest.
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2 Responses to Associate Chief Justice Krahn decides in favor of self represented accused in delay motion for unreasonable delay (Charter 11b)

  1. Pingback: Another successful delay motion with charter 11b challenge for simple traffic matter | Whats Up

  2. Pingback: ​Update on R v. Grant Appeal regarding unreasonable delay with Charter 11b challenge for simple traffic matter. | Whats Up

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