Reasons For the Delay

Why did it take so long for your charge to come to trial? In order to figure out if the delay is unjustified, the court must examine the reasons for the delay:

• inherent time requirements of the case,
• actions of the accused,
• actions of the Crown,
• limits on institutional resources, and
• other reasons.

Inherent Time Requirements

Generally, complex cases require longer preparation time and the court will be tolerant of a delay. But traffic tickets are not complex. Typically they rely solely on the oral testimony of a single police officer. A lengthy delay weighs in your favour because it shouldn't have taken very long.

Limits On Institutional Resources

A lack of adequate resources and institutional delays should work in your favour. This is especially true when other regions of Ontario can bring your charge to trial much faster than the jurisdiction you are in.

For example, if Mississauga can bring a speeding ticket to trial within four months while Toronto can take 15 months, Toronto has some explaining to do. Typically the prosecutor will explain that the courts are backlogged and that court resources are limited. Therefore you should not be an exception to the delays everybody is experiencing. He'll argue your stay application should be denied.

The court used to examine this argument in great detail. It counted the number of days in the delay, compared it to other jurisdictions, and even went so far as to examine how many hours the justices worked per day. However more recently they have shown greater flexibility in their interpretation of institutional limitations.

Specifically, all those press releases by Attorney Generals have convinced trial courts that something is actually being done (despite an actual increase in the backlog) to make the judicial system more efficient and therefore your delay seem more reasonable.

The courts have been very understanding of "temporary" strains on institutional resources. Certain regions, Markham, Milton, and Brampton for example, have experienced building booms and population increases without additional court funding to deal with greater demands for trials. Rapid population growth is attributed to people relocating to seek employment, more affordable housing, better schools or increased immigration settlement.

The real truth however is a very different story. In the late 1990s, the government amalgamated many municipalities in Ontario. For example the cities of North York, East York, York, Etobicoke and Scarborough were absorbed into Toronto. It was supposed to be revenue neutral. In other words, not cost anything. The newly amalgamated cried foul and claimed they were starved for cash. They threatened to increase property taxes unless they got more funding.

The province responded by downloading the operation of provincial offences courts (that hear traffic ticket cases) to the municipalities. The province also allowed the municipalities to keep the revenue generated by those traffic tickets. The more tickets they wrote, the more money they made. The gold rush was on.

The 2008 report of the provincial auditor noted that in the ten years after amalgamation, there was a 57% increase in the number of tickets issued by municipalities who administered the courts and kept the ticket revenue. In Toronto the increase was 78%. In Ottawa, 155%! The Ottawa municipal police stated it was due to "an increased emphasis on road safety". But OPP issued tickets (they don't get to keep the revenue) only increased by 20% during the same period. Mississauga, which does not control a municipal police force, only increased ticketing by 2%.

From a practical standpoint, if you increase the number of tickets issued by an Ontario average of almost 60%, then you should expect a 60% increase in the number of people requesting trials. The municipalities didn't use the extra money for extra courts. In fact they did the opposite.

For example, Toronto got rid of night courts, reduced the number of hours court offices were open, increased fine amounts and eliminated the 25% discount from the voluntary payment option on your ticket. They removed any financial incentive to pay the ticket. What did they expect? Of course more people would be requesting trials.

Some municipalities, without spending money to increase court resources, started hiring more officers whose only duty was to issue traffic tickets. In other words, they deliberately increased the backlog.

The backlog is not due to limited institutional resources. The delay is due to mismanagement of court resources and questionable financial practices.

Community Interest

When examining the reasons for the delay, your justice must also examine what the community wants.

While the Charter primarily protects individual rights, there are secondary societal rights that are also protected under section 11(b) (see R. v. Payne, 2010, par 10-13).

First it protects the public’s interest in seeing that laws are enforced by having those who break the law tried quickly. Promptly held trials increase public confidence in the justice system. Second, section 11(b) protects the public’s interest in having those accused of offences dealt with fairly.

This community interest work against you. Depending on your charge, the community interest can be weak or strong. As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. As the community interest becomes stronger, the court becomes more tolerant of the delay.

For example, society is not served much better if you are convicted of a parking ticket infraction. In fact, it could be argued that the community's interest supports dropping the charge as the cost of conducting your trial is much greater than the fine imposed.

On the other hand, the community will want to see drag racing or drunk driving charges brought to trial. While the community would want the charge dealt with quickly, it would want the charge dealt with even if there was a significant delay.

Two Schools of Thought

Justices generally fall into either one of two schools of thought when it comes to applications for stays.

The first school believes that relatively minor matters should take a small amount of time to come to trial. Intake delay should be minimal for minor matters. Complex charges should take longer. For example, a parking ticket should be dealt with relatively quickly while a drunk driving charge will inherently require more time.

The second school of thought believes that minor matters should not receive precedence over serious charges that the community has an interest in seeing come to trial. A parking ticket is a lower priority and should take longer to go to court than a drunk driving charge.

The success of your stay application will depend on your charge and which type of justice you get.

Actions of the Crown

The prosecutor will always argue that the delay is justified due to the inherent time requirements of your case. However, courts must look at the conduct which caused the delay. The court must determine whether that conduct was necessary, reasonable, meritorious, and undertaken in good faith. Only then can some aspect of delay be inferred as an inherent time requirement of the case. (See R. v. Sander, 1995)