Important update on Delay Motions with Charter 11b challenges for simple traffic matters with unreasonable delay to go to trial

MB Law Courts – Home of the MB Court of Appeal
Oct 28 2017 – Kevin Yaworski – WiseUpWinnipeg

WUW and the media covered this in Sept but here is link to the Justices full decision to grant leave to appeal for this important case.

Here is a recap and some new information. Manitoba’s highest court is taking the unusual step of weighting in on a simple traffic matter. In R v. Grant MBQB Justice Vic Toews said the 18m ceiling for reasonable delay for criminal matters at Provincial Court as per R vs. Jordan (Supreme Cout of Canada) should be followed for simple traffic matters. Yet Jordan says simple matters should take less time to go to trial than more complex matters. Several Justices in Provincial Court have agreed and said 6 months is reasonable. Several also said the institutional delays in these matters are well known and not reasonable.

Toews who had a long political career and ties in MB also being investigated by the Judicial Council of Canada for allegations of conflict of interest which in at least public opinion and trust is relevant.

Below is part of what the Court of Appeal Justice said. They also listed several other cases where the motions were denied but most of the accused in these were not well prepared which is not uncommon for self represented but this should have been taken into consideration. Charter Rights, Court Directives and MB Justice policies require this consideration as well as all actions of the Crown and Court must promote confidence in the administration of Justice.

Based on this it can be argued that delay motions before the Provincial Court (e.g. for traffic matters in MBSCC) should be adjourned once filed until the higher court decision.

Here is part of the MBCA decision to grant leave to appeal in R vs. Grant.

Note in R. vs. Yaworski ACJ Krahn also said the high volume and upward trend in alleged traffic violations over many years is well known, concerning and the delays from this are not reasonable. She said this is causing loss of public confidence in the system.

She was very detailed in her decision but for the most part was ignored by senior elected and appointed officials at the City and Province who have the authority and responsibility to address the root cause of the delays. The aggressive targeting of the average safe driver in known and dangerous engineering deficient locations by for profit ACS / Xerox photo and traditional officer enforcement. Up to 200,000 issued per year.

[23] In R v Yaworski, 2016 MBPC 56, a post-Jordan case, the Court
found that the 18-month presumptive ceiling had been exceeded and that the Crown failed to show exceptional circumstances. In considering the transitional provisions, the Court held that the institutional delay of 16 months was well above the Morin guidelines and commented to the effect that, in its view, the lack of institutional resources had contributed to the culture of delay
in Winnipeg’s traffic court. The Court found a breach of section 11(b) and entered a stay of proceedings.

[22] In this jurisdiction, provincial court decisions as to what institutional
delay is reasonably acceptable for highway traffic offences under Morin, are conflicting. For example, in the pre-Jordan case of R v Segodnia, 2016 MBPC 29, the Court held that a 19-month delay from the time of the charge to the time of the trial was unacceptable. In reaching its conclusion, the Court, like the motion judge in this case, relied on the simplicity of the nature of the prosecution as a matter which should reduce the amount of reasonable institutional delay.

As I have explained, trial judges are interpreting the law differently, and one of the roles
of this Court is to settle the law.

[28] Therefore, I would grant the accused leave to appeal on the following questions.

1. Did the summary conviction appeal judge err in law in applying the framework established in Jordan for determining whether there has been a breach of section 11(b)
of the Charter?

2. Did the summary conviction appeal judge err in law in applying the transitional provisions in Jordan including his
consideration of the institutional delay that was reasonably
acceptable under the Morin framework?
Cameron JA

About Kevin Yaworski

I use my blog to write about things that I think are a matter of public interest or that I think others will be interested in
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