Unfiled paperwork derails traffic ticket challenge under Charter of Rights and Freedoms

An attempt by a Winnipeg man to have a mobile photo-radar ticket thrown out because it took too long to get to trial has come to a screeching halt.

Local businessman George Andrews argued in provincial traffic court Tuesday that the nearly 21-month wait time between the day he was issued a citation for speeding and his trial date constitutes an unreasonable delay and therefore violated his charter right to a speedy trial, but was unsuccessful because he hadn't filed the proper paperwork.

On Oct. 29, 2015, Andrews received a mobile photo-radar ticket for driving 52 kilometres per hour in a 30 km/h school zone in River Heights.

When the $338 ticket arrived in the mail, he decided he would challenge it in court, and a trial date was set for July 18, 2017.

Last year, in what has become commonly known as the Jordan decision, a Supreme Court of Canada ruling quantified what constitutes an unreasonable delay, setting the time at 18 months for provincial courts.

However, Andrews' argument that his charter rights have been violated were disregarded by Judicial Justice of the Peace Boyd Lischenski, because he failed to file an application to the court for his charges to be stayed in advance of the trial.

"When you show up on the day of your trial and you're asking for a judicial stay of proceedings, the court can't do that. There is a practice directive with respect to how these matters are to be dealt with … at least 30 days for these types of challenges," Lischenski said.

Andrews argued that he was not made aware of this requirement and that it was unreasonable for the court to expect a layperson to grasp all the administrative requirements of the legal system.

Lischenski responded that at any time, Andrews could have hired a lawyer who likely would have been aware of the process. He further said simply exceeding the 18-month window does not automatically mean the delay is unconstitutional, since other factors would first need to be evaluated.

Andrews was found guilty after testimony from the mobile-radar operator in the vehicle on the day of the violation. A fine of $338.50 was imposed.

Andrew told CBC News he feels cheated that his primary argument was dismissed for procedural reasons.

​"It's an of abuse power, it's an abuse of the court and it's a way for them to use the courts to abuse the layperson that doesn't know every detail of the law," he said.

Andrews said he intends to appeal the decision.

'Should not be penalized'

The president of the Criminal Defence Lawyers Association of Manitoba said self-represented litigants should not be penalized for not following these types of formal procedures.

"This is very much an access to justice issue. Frankly, [Andrews] has a charter right that cannot be ignored or overridden by a practice directive," said lawyer Jody Ostapiw.

"Self-represented litigants should be told about and provided copies of these directives and precedents or, at least, be advised of their Section 11(b) right [to a trial within a reasonable amount of time] when they set their matter for trial," she said.

She noted many people cannot afford a lawyer and Legal Aid does not generally provide coverage for charges under the Highway Traffic Act.

Jordan sets 18-month limit

In July 2016, the landmark R vs. Jordan ruling by the Supreme Court of Canada established clear limits for what constitutes a reasonable delay for a person tried in both provincial and federal courts. It effectively replaced a prior ruling — R vs. Morin — that had been used to gauge the reasonableness of court delays.

In the case of Andrews' traffic ticket, an 18-month ceiling applies to his charge, since it was issued under the authority of a provincial statute. For cases heard before federal courts, such as serious criminal matters, the allowable delay is 30 months.

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If a trial date goes beyond these limits due to delays not caused by the defendant, an application for a stay of proceedings would be granted.

A spokesperson for Manitoba Justice confirmed by virtue of the Jordan decision, nine delay motions have been granted to date on charges under the Highway Traffic Act. There is no data on how many current notices have trial dates set beyond the 18-month window, the spokesperson said.

Similar challenge overturned

Early this year, a Manitoba woman who had successfully had her speeding ticket thrown out because of unreasonable delays in 2016 saw the charge reinstated by Manitoba's superior court.

This past March, Manitoba Justice Vic Toews argued the lower court judge incorrectly ruled that the accused waited an unreasonable amount of time for her day in court. Applying the time period between the date the ticket was issued — rather than the day of the violation — and the trial date to the now-existing Jordan decision, Toews determined the wait fell just within the new Supreme Court definition of what constitutes a reasonable delay for trial.