R v Tee

The Corporation of the City of Mississauga v. Lesley Atkins (Tee)

Ontario Court of Justice — Justice of the Peace N. Burgess | October 2, 2007
Ontario Court of Justice

Background

On November 2, 2006, at 4:15 p.m., Lesley Atkins (later Tee after marriage) was involved in a collision at Erin Mills Parkway at The Collegeway in Mississauga. She was charged under section 130 of the Highway Traffic Act with careless driving. The ticket was filed in court on November 6, 2006, meaning the officer's copy should have been in court by November 9th. However, no trial notice was issued until March 1, 2007 — a full four months after it could have been issued, and exactly eleven months before the matter finally came to trial.

By June 2007, the defence had notified the prosecution of their intention to bring a Charter section 11(b) motion arguing unreasonable delay. The prosecution took no steps to expedite the trial despite this clear warning. When the case finally appeared before Justice Burgess in October 2007, the central issue was whether this eleven-month delay violated Atkins' Charter right to trial within a reasonable time.

Issues

1. Whether the eleven-month delay from charge to trial violated the accused's Charter section 11(b) right to trial within a reasonable time
2. Whether the defence acted reasonably in notifying the prosecution of the delay issue and whether the prosecution's inaction was problematic

The Charter Section 11(b) Analysis

Justice Burgess applied established case law principles for analyzing delay claims. The court noted that while the "outside parameters" for delay are typically ten to eleven months in Provincial Offences matters, several factors made this case problematic for the prosecution. First, the four-month delay in issuing the trial notice was unexplained and unjustifiable — the court could have issued it as early as November 9th. Second, when the defence formally notified the City in June 2007 of their intention to argue section 11(b), this was "obviously a red flag" that should have prompted immediate action to expedite the trial.

The judge was particularly critical of the prosecution's failure to respond to the defence's June notice: "It seems to me that that's a clear indication and obviously a red flag to say, you know, maybe you should be putting in a Notice of Motion and asking for the matter to be brought forward." Despite having several months' notice of the delay issue, the prosecution made no effort to seek an earlier trial date. The court found this delay was excessive under the circumstances and that the defence had acted responsibly throughout.

Key Takeaway

Early notice of a Charter delay motion can actually strengthen your case if the prosecution fails to act on it.

Self-represented defendants should track timing carefully and formally notify the prosecution if delay becomes an issue. The prosecution's failure to respond appropriately to such notice can itself become evidence supporting the delay application.