R v Omarzadah (Leave to Appeal)

R v Omarzadah (Leave to Appeal)

[2004] O.J. No. 2212 (Ont. C.A., M30824)
Court of Appeal for Ontario — Doherty J.A. | Heard March 2, 2004; endorsed March 3, 2004

Background

Ahmad Omarzadah successfully argued on appeal that his rights under section 11(b) of the Charter had been infringed by delay, and the appeal judge stayed the proceedings. The Crown sought leave to appeal to the Court of Appeal. Its concern was less about Omarzadah than about precedent: it worried the reasons below would be read as establishing a six-month guideline for Part I Provincial Offences Act prosecutions, with anything beyond that presumptively unconstitutional. Crown counsel also asked for a further adjournment so different counsel could argue the motion; Doherty J.A. found the reason offered unsatisfactory and the motion proceeded. The stay under appeal is the decision of Shamai J. of the Ontario Court of Justice, dated December 9, 2003.

Issues

1. Do the reasons below establish a six-month presumptive ceiling for Part I POA prosecutions?
2. What framework governs s. 11(b) delay in provincial offences prosecutions?
3. Should leave to appeal be granted on these facts?

The Court's Decision

Doherty J.A. put the precedent worry to rest: the reasons below "should not be read as authority for that proposition." The R. v. Morin, [1992] 1 S.C.R. 771 analysis applies to POA prosecutions, and to the extent guidelines help, the Morin summary conviction guidelines govern — though even those should not necessarily be strictly applied. He acknowledged that any "stigma" arising from delay in the trial of charges like speeding is virtually non-existent, and that in allocating finite resources the state is entitled to give some priority to resolving more serious allegations. On the facts, he refused leave. The delay was 14 months; the respondent had objected to the proposed trial date immediately and put the prosecutor on notice of an 11(b) claim if it was not changed; no attempt was made to accommodate that request. He saw little prospect of the court reversing the result below.

Key Takeaway

There is no six-month rule for POA delay — Morin governs, and what you did about the delay matters.

Omarzadah is the case that stops both sides from over-reading POA delay decisions. There is no magic number. But note what won it: the defendant objected to the trial date at the time and served notice of an 11(b) claim, and the prosecution did nothing to accommodate him. Silence at scheduling is what usually sinks an 11(b) application.