York (Regional Municipality) v. Tomovski

York (Regional Municipality) v. Tomovski

2017 ONCJ 785
Ontario Court of Justice — Justice John McInnes | November 21, 2017

Background

Steve Tomovski got pulled over on December 30, 2014, and received a speeding ticket — something that happens to Ontarians every day. He decided to fight it, filing his Notice of Intention to Appear and requesting disclosure in April 2015 for his May 22 trial date. When he showed up unrepresented, he asked for an adjournment because the prosecutor had declined to provide two items of disclosure he wanted. The trial was pushed to October 29, 2015.

By October, Tomovski had retained his brother as counsel, who brought a section 11(b) Charter application arguing the delay violated his right to be tried within a reasonable time. But there was a problem — counsel hadn't served the required notice on the federal and provincial Attorneys General under section 109 of the Courts of Justice Act. The matter was adjourned again to February 10, 2016, where Justice of the Peace Radtke heard the application and reserved his decision. On June 21, 2016 — 538 days after the original charge — Radtke J.P. stayed the proceedings, finding the delay unreasonable. York Region appealed.

Issues

1. Did Justice of the Peace Radtke correctly apply the delay analysis under the new Jordan framework?
2. Should the 18-month presumptive ceiling from Jordan apply to Provincial Offences Act Part I proceedings, or should it be different?

The Jordan Framework and POA Cases

Two weeks after Radtke J.P.'s decision, the Supreme Court released R. v. Jordan, completely changing how courts analyze section 11(b) delay claims. Justice McInnes had to apply this new framework on appeal. Under Jordan, courts calculate total delay, subtract "defence delay," then compare the "net delay" to a presumptive ceiling — 18 months for provincial court cases. If delay exceeds the ceiling, it's presumptively unreasonable unless the Crown proves exceptional circumstances.

The key fight was over who caused the adjournments. McInnes found that Radtke J.P. wrongly attributed most delays to the prosecution. The first adjournment happened because Tomovski wanted disclosure items the prosecutor reasonably considered irrelevant — this was defence-caused delay. The second adjournment occurred because counsel failed to follow the mandatory notice requirements under section 109 of the Courts of Justice Act. While the Crown could have handled this better, the primary cause was defence error. McInnes calculated 212 days of deductible defence delay, leaving net delay of just 10 months and 22 days.

A New Ceiling for Traffic Tickets

Both parties argued that Jordan's 18-month ceiling was designed for criminal cases and shouldn't apply to POA Part I proceedings. York Region wanted more time (24 months), arguing the high volume of tickets and disclosure issues justified longer delays. Tomovski wanted less time (14 months), arguing traffic tickets are simpler than criminal cases.

Justice McInnes sided with Tomovski's position, finding that POA Part I cases are inherently less complex than criminal matters and should have a lower ceiling. He rejected York Region's arguments about volume and systemic delays, noting these were problems that could be solved with better procedures and resources. The judge was particularly critical of inefficient practices like requiring defendants to attend courthouses during business hours to file paperwork, and disclosure processes that routinely cause adjournments. Most pointedly, he stated: "If York Region and/or the overseeing Government of Ontario find it impossible to bring defendants to trial within a time frame that is reasonable given the limited inherent complexity of these adjudications, then they must either stop using the courts for this purpose or reallocate resources."

Key Takeaway

Provincial offences should move faster than criminal cases, not slower — and defendants can't benefit from delays they cause themselves.

Self-represented defendants should request disclosure early and follow all procedural requirements carefully, because courts will deduct time lost due to defence errors or inaction when calculating whether delay violates Charter rights.