R v El-Nasrallah

R. v. El-Nasrallah

2018 ONCJ 161
Ontario Court of Justice — Justice Mara Greene | March 8, 2018

Background

On July 22, 2016, Nina El-Nasrallah was charged with driving while using a handheld device under section 28.1(1) of the Highway Traffic Act. She filed her notice for trial on July 29, 2016, and the court scheduled her trial for June 15, 2017 — a total delay of 10 months and 24 days from charge to trial. At trial, El-Nasrallah argued her Charter right to be tried within a reasonable time (section 11(b)) had been violated because of this delay.

The trial judge dismissed her application and found her guilty. El-Nasrallah appealed, arguing that any delay beyond 10 months for Highway Traffic Act offences should be considered constitutionally intolerable. Her case landed right in the middle of a major shift in Canadian law — the Supreme Court's 2016 Jordan decision had just established new time limits for criminal cases, but nobody was sure if those rules applied to traffic tickets.

Issues

1. Does the Jordan framework for Charter delay violations apply to Provincial Offences Act prosecutions?
2. If so, should traffic ticket cases have a shorter time limit than the 18-month ceiling set for criminal cases?

The Delay Framework Debate

El-Nasrallah's lawyer argued that the new Jordan rules shouldn't apply to traffic tickets at all, and that the old Morin framework should still govern. They pushed for a 10-month ceiling, arguing that traffic cases are simpler and should move faster. The Crown argued that Jordan's 18-month ceiling should apply without modification.

Justice Greene firmly rejected the idea of keeping the old Morin framework. The Supreme Court in Jordan had called the old system "too unpredictable, too confusing, and too complex" — and said it had become "a burden on already over-burdened trial courts." The judge reasoned that it would be illogical to keep using a framework the Supreme Court had just condemned as fundamentally flawed.

However, Justice Greene agreed that traffic cases deserve a lower ceiling than criminal cases. She noted that Provincial Offences Act cases are less complex, require no significant intake period (no disclosure, no legal aid applications, no pre-trial conferences), and should proceed expeditiously. Following reasoning from other judges, she found that somewhere around 12-15 months would be appropriate for traffic tickets, though she didn't set a specific number due to insufficient evidence about court administrative realities.

Key Takeaway

Traffic ticket delays under 12 months are almost certainly constitutional, but anything over 15 months is getting into dangerous territory.

This case establishes that while traffic tickets should move faster than criminal cases, they're still subject to the same basic Charter protections. If you're facing a traffic ticket and the delay approaches or exceeds 12-15 months, you may have grounds for a section 11(b) application — but don't expect success with shorter delays.