Stay Your Charge

Step 4 explains what a stay is, the steps you must follow and provides useful documents you can use to apply for a stay. You would be wise to carefully review this Step.

A stay application for a parking ticket usually involves one or two sections of the the Canadian Charter of Rights and Freedoms.

Section 7 (Disclosure)

Section 7 which deals with principles of fundamental justice, specifically your right to disclosure in order to explore and prepare your defence strategy.

Under the disclosure section above, the importance of a solid disclosure request and what evidence to examine was explained to you. If disclosure does not provide it, apply for a stay based on an infringement of your section 7 right to know the evidence they will use against you before the trial begins.

For example, the provincial version of a parking ticket does not contain a section for vehicle make or model information but many cities, like Toronto, include this information on their electronic tickets.

A copy of the original ticket should have been given to you under disclosure. The Notice of Impending Conviction does not contain make or model information but the ticket may. That's why it is so important to receive a copy of the ticket and argue strongly for a stay if you did not receive it, because:

• some cities (i.e. the City of Toronto) keep the ticket when you request a trial and only give you a receipt;
• the ticket has information, like make or model, that neither the notice of impending conviction or the certificate of parking infraction have; and
• you need to examine this information in order to prepare your defence.

If you are going to be arguing they wrote the wrong licence plate number on the ticket, knowing whether they got the wrong make or model will further strengthen your argument.

If you did not respond to the ticket, but only requested a trial from the notice of impending conviction it would be consistent with your claim that the ticket was never placed on your vehicle.

Section 11(b)(Unreasonable Delay)

Section 11(b), which is covered in great detail under Step 4, is the right to be tried within a reasonable time.

For the purposes of a parking ticket, you trial should be held within one year from the offence date. Anything beyond that can be considered unreasonable and an infringement of your Charter right not to be subject to a lengthy delay.

In Step 4 you learned that the length of delay is based on two components. The Supreme Court of Canada set a guideline of eight to ten months for intake and six to eight months for institutional delay. This gives a maximum amount of time up to 18 months.

But parking tickets are very different than other provincial offences and this 18 month limit is actually reduced to 12 months.

Intake is the natural amount of time the parties (you and the prosecutor) require in order to prepare for trial, (e.g. request a trial, submit paperwork to commence a proceeding, etc.). Intake delay is considered neutral and not to be included when calculating the length of delay.

However, for parking tickets a proceeding must be commenced within 75 days. Unlike speeding tickets or criminal trials which may require extensive preparation time, parking tickets must be ready within 75 days. That means intake delay can only be a maximum of two and a half months (75 days). If they filed the paperwork earlier than that, then intake will be even less.

Once both parties are ready for trial, it is up to the courts (the "institution") to schedule the trial. For parking tickets, this means the institutional delay clock starts ticking on the 76th day, if not sooner.

An institutional delay between six to eight months to schedule your trial will not be considered unreasonable. The Supreme Court stated in R v. Morin (1992):

A longer period of institutional delay for Provincial Courts is justified on the basis that not only do these courts dispose of the vast majority of cases, but that on average it takes more time to dispose of cases by reason of the demands placed on these courts.

It appears that an outer limit of eight to ten months would be tolerated for institutional delay in provincial offence courts. That combined with a 75 day intake delay should produce a trial no later than one year from the date of offence.

Case Law Example

An example of these arguments can be found in R. v. Cassimatis (2010). The defendant, charged with a parking offence, made a stay application for an infringement of sections 7 and 11(b) stating that he requested disclosure but received no response and that the amount of time for the matter to come to trial was more than one year:

• Nov. 26, 2008 requested a trial
• Nov 2, 2009 notice of trial mailed
• Nov 9, 2009 notice deemed delivered
• Nov 12, 2009 disclosure requested
• Dec 8, 2009 trial adjourned to refile paperwork
• Dec 24, 2009 second disclosure request
• Feb 16, 2010 trial

The justice, who had ruled on a similar matter in R. v. Rowan (2004) for a speeding ticket, agreed and granted the stay.