In January, I wrote an article about the Quarantine Act and the tickets given under it. Since then, we have represented several defendants and we have been able to save clients considerable sums, sometimes getting tickets thrown out entirely.
Most clients who call in, received a ticket for one of two reasons: refusing to book a Quarantine Hotel (or Government Approved Accommodation), or refusing to take a test when they landed. This article deals with the first.
Many people are receiving notices of trial or Early Resolution right now for tickets they received in the summer of 2021. The Order in Council that required travellers to book a Quarantine Hotel expired on August 6, 2021.
That means that people are getting dates nearly two years after being charged. What does that mean for them?
The Right to Trial Without Delay
In the Canadian Charter of Rights and Freedoms, under subsection 11(b), every Canadian is guaranteed the right to a trial “without delay”. What “delay” means was, until 2016, subject to a very complex juridical analysis. However, with the decision of R. v. Jordan, the courts presented something new: a very simple framework where delay is presumed after 18 months.
The way it works is that 18 months after a charge is laid, delay is presumed, and if a Defendant raises the issue, the onus is on the Prosecutor to justify the delay.
The Prosecutor has two ways to justify the delay: either it was caused by the Defendant—for instance, the Defendant asked for an adjournment to gather more documentation—or it was caused by a “discrete event”. A discrete event is contemplated in R. v. Jordan as something like a party or the judge having a medical or family emergency on the day of the trial, for instance.
Delay Jurisprudence in COVID times
Quarantine law-related tickets have been fought on the basis that delay was unconstitutional, notably R. v. Lauterpacht. In that matter, Defendant argued in a motion that delay should have the matter abandoned. The Justice of the Peace, however, argued that the COVID-19 pandemic and subsequent shut-downs constituted a “discrete event”. The Justice subtracted all the time from the laying of the charge to the first trial date – 9 months in this case. The Justice cited several other decisions in the Provincial Offences Court to justify her decision, and several other Justices have made similar determinations.
As many know, in Ontario we have a legal system that uses precedents, and those precedents are subject to binding decisions from higher courts. In other words, decisions made by courts of higher authority can compel courts of lower authority to make similar decisions.
In our case, the Provincial Offences (POA) Court is the lowest court in the quasi-criminal stream. Binding on the POA court are the decisions made in the Superior Court of Justice, and binding on both are the decisions of the Ontario Court of Appeal.
Clearly, COVID-19 delays have not only affected those getting quarantine tickets but also those charged with other regulatory offences and crimes.
This is where we can look at decisions in the Appeal Court to see what they say about COVID-19 being a “discrete event”. In the decision R. v. L.L., the Judge ruled that the extent of the “discrete event” expired following the close of the first and hardest lockdown between March of 2020 and August of 2020. In R. v. Donnelly, the Judge ruled that the discrete event stopped causing a delay when the first trial was set in a given jurisdiction. In Mississauga, that was July 14, 2021, which is around when most people received a ticket for not booking a Quarantine Hotel.
Chances of Success
The above-noted case law on delay jurisprudence has not yet been tested in a Provincial Offences trial as far as we know. We have had success, however, in leveraging these decisions to help our clients.
Unfortunately, raising a constitutional argument in the Provincial Offences Court is not as simple as merely stating your right, but requires servicing a notice and application on the Attorneys general of Ontario and Canada. We urge anyone fighting these substantial fines to pair up with a firm that has the experience and devoted resources to fighting these specific charges.
If you recently received a notice for trial or early resolution in the mail and you need help fighting a quarantine ticket, give our office a call.
Click the link below to get started with your complimentary consultation.
About the Author
Joey Clavette
Licensed Paralegal and Notary Public
AJ Murray Legal Services P.C