ONTARIO COURT OF JUSTICE

COURT FILE No.: Regional Municipality of York File #00-86401409-90 Citation: R. v. Vellone, 2009 ONCJ 150 ONTARIO COURT OF JUSTICE IN THE MATTER OF an appeal under of the Provincial Offences Act BETWEEN: Her Majesty the Queen Respondent AND Angelo Vellone Appellant Before Justice Howard Chisvin Heard on December 4, 2008 Reasons for Judgment released on February 20, 2009 On appeal from conviction/sentence by Justice of the Peace Abdul Malik on August 25, 2008 and from the sentence imposed on August 25, 2008. C. Angus... for the prosecution The defendant Angelo Vellone on his own behalf Chisvin J.: [1] Angelo Vellone has appealed his conviction for speeding. The only ground of appeal is that his s. 11 (b) Charter rights were violated. [2] The prosecution responds to this appeal by arguing that Mr. Vellone did not comply with his statutory obligations, specifically s. 109 of the Courts of Justice Act. Thus, he should not have been able to bring the application at trial. This in turn, the prosecution

2 argues, means that Mr. Vellone should not be able to raise 11 (b) on the appeal as he is effectively raising the argument for the first time. This the prosecutor argues is not permissible. Finally, the prosecution argues that even if Mr. Vellone is allowed to raise his an 11 (b) argument on appeal, the time to trial was not so long as to constitute a Charter violation. Factual Basis of Appeal [3] On June 7, 2007 Mr. Vellone was charged with the offence of speeding, 115 kilometres in a 100 kilometre zone. On June 22, 2007, Mr. Vellone filed a notice of intention to appear for trial. More than three months later, on September 24, 2007 the court office mailed out a notice of trial date. The trial date provided to Mr. Vellone was for April 2, 2008. [4] On April 2, 2008, Mr. Vellone appeared in court unrepresented for his trial. At that time it was announced that the courtroom temperature was apparently 83.7. Mr. Vellone was asked if he had any difficulties with the trial being adjourned because of the temperature of the courtroom. Mr. Vellone indicated that he wanted to get his trial over and done with, but he would do whatever the court wanted. The justice of the peace on that day decided to adjourn the matter. Mr. Vellone was provided with a new trial date which had been suggested to the court by the prosecutor. The date suggested was August 25, 2008. This was the only date suggested. Mr. Vellone did ask if the matter could be heard in the morning or at night court. He was advised that neither of these requests could be accommodated. [5] The matter returned to court for trial on August 25, 2008. This, as I said, was the first and only date offered to Mr. Vellone. On that day, Mr. Vellone asked that his matter be

3 dismissed because it took too long to get to trial. Mr. Vellone made reference to the Charter of Rights in making this request. [6] The prosecutor responded by stating that regulation 200 of the Courts of Justice Act made it clear that the Attorney General of Ontario and Canada and the prosecutor s offices must be notified. As well, transcripts must be submitted for such a motion and given that there were not transcripts, and that Regulation 200 was not complied with, the oral motion was not acceptable and the matter was not properly before the court. [7] Justice of the Peace Malik indicated that the motion was not properly before the court because the Ministry of the Attorney General and the Prosecutor s office were not notified fifteen days in advance in writing. The matter then proceeded to trial and Mr. Vellone was ultimately found guilty of the offence of speeding. [8] Mr. Vellone then appealed the decision to this court arguing that his s. 11 (b) Charter rights had been violated. Issues and Analysis [9] In response to Mr. Vellone s argument that the trial took too long to be heard and thus his s. 11 (b) Charter rights were violated, the prosecutor has argued the following way: Mr. Vellone was required to comply with s. 109 of the Courts of Justice Act and had not done so at his trial and thus insufficient notice was given. This meant that the 11 (b) Charter violation could not be argued at trial. Secondly, as proper notice had not been given at the trial, the raising of the 11 (b) on appeal is effectively arguing the matter for the first time and should not be allowed. Third, even if notice was not required the length of time to trial in the circumstances of Mr. Vellone s matter did not violate s. 11 (b) of the Charter.

4 [10] Does s. 109 of the Courts of Justice Act apply to the trial proceeding? The prosecutor argued that by operation of s. 95 (3) of the Courts of Justice Act, when a remedy under s. 24 (1) of the Charter of Rights is being sought, section 109 of the Courts of Justice Act applies. Put differently and more simply, when an accused is prosecuted under the Provincial Offences Act, and seeks a s. 24 (1) Charter remedy, (here a stay for unreasonable delay), they must notify the Attorney General of Canada and the Ministry of the Attorney General of Ontario. Section 109 does not specifically require that the local prosecutor need be notified. [11] Notwithstanding the trial prosecutor s position, the appellate prosecutor concedes that Regulation 200 of the Courts of Justice Act has no application to proceedings under s. 24 (1) of the Charter and thus does not constitute part of the argument before me. [12] The prosecution relies on Justice Lampkin s decision in R. v. DeCaro [2000] O.J. No. 3166 (Ont. C.J.) in support of both of these propositions. [13] The prosecution also provided a number of other cases in support of their argument in addition to DeCaro. I note that all of these other decisions predate the decision of Justice Lampkin in DeCaro except for one decision by Justice Bourque in 2008. In that decision Justice Bourque clearly declined to deal with the applicability of s. 109 of the Courts of Justice Act. [14] I have carefully reviewed Justice Lampkin s decision in DeCaro. As always, Justice Lampkin s decision is extensive and well reasoned. I find however that given the present procedure for prosecuting Highway Traffic Act matters that I do not agree with Justice Lampkin s conclusions. As Justice Lampkin noted in DeCaro, he was not dealing with the prosecutorial procedure that came into place after July of 1999 when the Region of York took over the prosecution of such matters by means of agreement with the Ministry of the Attorney General. Rather, he dealt with the system as was in place prior to July 1999.

5 [15] The Provincial Offences Act, s. 161.1 and following provides for agreements between municipalities and the Attorney General to be put into place to allow the municipality the function of prosecuting offences, in this case, the offence of speeding. [16] Pursuant to these agreements the municipalities are required to provide not only the prosecutors, but the court administrators and the court facilities. The only obligation the Attorney General has is that it is his responsibility to appoint Justices of the Peace to hear such trials. Beyond that, the prosecutions of these matters essentially would be a municipal concern. The Attorney General of course does maintain an overriding right to intervene and supervise the administration of the agreements. Once the municipality has taken on the prosecution of the matters, the Attorney General is no longer a party to the prosecution. [17] The Provincial Offences Act goes so far as to specifically note in s. 169 that a municipality acting under such agreement does not act as agent for the Attorney General of Ontario. [18] Thus, by agreement, the Attorney General has delegated the prosecution of these matters to the municipality, and they are no longer prosecuted by the Attorney General. [19] This is different in my view, than the procedure in place that Justice Lampkin was concerned with in DeCaro. [20] Section 109 of the Courts of Justice Act speaks to one of two circumstances. First if the constitutionality of legislation is being challenged, which is clearly not the situation before me, then s. 109 must be complied with. Secondly, the section must also be complied with where a remedy is being sought under s. 24 (1) of the Charter as a result of an act or omission of Government of Canada or the Government of Ontario. [21] In Mr. Vellone s matter the remedy being sought is not as a result of an act or admission

6 of either the Government of Canada or Government of Ontario. Rather, the remedy is being sought as against the Region of York for not dealing with Mr. Vellone s matter and bringing it to trial within a reasonable period of time. As a result of the agreement that is in place under the provisions of the Provincial Offences Act, it is the municipality that is required to provide court resources and not the Government of Ontario. Thus, if there has been a violation of s. 11 (b) in this matter it is as a result of the conduct of the municipality and not that of the Government of Ontario. As such, it is clear, that s. 109 of the Courts of Justice Act has no application to this proceeding. [22] Having reached this conclusion then, Mr. Vellone did not have to give notice pursuant to s. 109 of the Courts of Justice Act and thus he should have been allowed to raise the argument in the course of his trial. The trial justice of the peace was in error in not allowing the motion to be dealt with in the absence of compliance with s. 109. [23] Similarly, as the appellate prosecutor concedes in their factum, Regulation 200 of the Provincial Offences Act has no application to the matter before the court and as such the Justice of the Peace was in error in accepting that submission. [24] That these strict requirements do not apply is also consistent with the logic of the Provincial Offences Act. Legal technicalities should not be used as a sword by a prosecutor to defeat legitimate arguments raised by unrepresented individuals in a trial process that is not to be overly technical or complex. Indeed the Provincial Offences Act has numerous sections relaxing technical requirements. Examples of such sections would be section 89 and 90 of the Provincial Offences Act which provide for adjournments to occur to remedy any technical defects. [25] There is no reason that such a procedure could not have occurred here to cure any

7 prejudice the prosecutor might have felt given the timing of the application by Mr. Vellone or lack of transcripts. A short adjournment by the Justice of the Peace could have remedied any of the concerns that the prosecutor might have had. [26] Having reached this conclusion, I am also satisfied that Mr. Vellone has not raised the issue of unreasonable delay for the first time on appeal and as such is entitled to raise the argument at this time. [27] I note that the prosecutor has relied upon R. v. Rabba [1991] O.J. 883 in support of the proposition that a s. 11 (b) application cannot be raised for the first time upon appeal. A careful reading of Rabba, especially paragraph 5 is required. The court in Rabba did not impose an absolute ban on such applications being heard for the first time on appeal. Rather, as Justice Arbour, as she then was, said: in my view the failure to move for a stay of proceedings, either before or at trial, would in most cases be fatal. The failure to move for a stay of proceedings would normally amount to a waiver of any claim which may arise under s. 11 (b) of the Charter. While this may be the normal situation, it is not an absolute prohibition from raising an 11(b) argument for the first time on appeal. [28]. It is clear from the transcripts of the trial proceedings that Mr. Vellone was concerned about delay, both on April 2, 2008 and again on August 25, 2008. There was no waiver by Mr. Vellone either explicitly or implicitly by his conduct. Thus the reasoning in Rabba has no application to this matter, and in my view this is not one of the normal cases the court in Rabba was speaking about.

8 [29] Has there been an unreasonable delay in Mr. Vellone s matter? Clearly given the length of the time from the offence date until trial, some fourteen and a half months, an inquiry is required on the face of this matter. [30] This matter is clearly not a complex one. The prosecution consisted of the evidence of a single police officer. The investigation was completed in its entirety by the time Mr. Vellone was charged. Nothing more needed to be done. Mr. Vellone then acted within the time period prescribed in order to obtain a trial date. It took more than three months for the court office to schedule Mr. Vellone s matter for trial. That period, in my view, is exceedingly long to perform the relatively simple matter of scheduling, which is entirely an administration process. In my assessment, three months is excessive in setting a matter for trial. [31] I note as well, that the manner in which the trial date is determined is entirely arbitrary and at the discretion of the court office. Mr. Vellone was not provided with any other alternative dates but simply given April 2, 2008 as the one and only date to appear. No explanation was provided as to why it was that was the only trial date, some five and a half months from the date the notice was sent out to Mr. Vellone. This first trial date was some ten months after the offence date. Given legislative time periods prescribed in order to notify the prosecutor that a trial is required, and recognizing that some time is needed to send out a notice of trial in the mail, a period of one month should be taken off this total ten month period to be considered as a neutral period of time. Thus in my view, a period of nine months falls to be considered as institutional or systemic delay. [32] On April 2, 2008 the trial is adjourned and the prosecution provided the date for the mater to come back to court August 25, 2008. Once again, no other date was suggested and the court failed in canvassing to determine whether or not an earlier date should have been made available. This court has a function, independent of the prosecutor s desires to ensure matters are placed back

9 on a trial list expeditiously and not simply according to a date provided by the prosecutor with no other explanation. [33] The acceptance of the adjournment in the circumstances and the new date by Mr. Vellone in no way constituted a waiver of his s. 11 (b) rights. He made it clear that he thought he was in court on April 2, 2008 to proceed to trial, and that it was not his decision as to whether or not the matter should be adjourned, but that of the courts. His acceptance of the August date does not amount to an implicit waiver of any time period. While he might have said more to the court, the acceptance of the inevitable does not constitute a waiver by Mr. Vellone. [34] This adjournment added a further four months to the nine months delay that already existed. Thus in totality, the delay in this matter constitutes a period of thirteen months for what is factually a very simple matter and require very little court time to try. [35] While not specifically addressed, I can take from the circumstances that there is at least some prejudice attached to Mr. Vellone. Clearly there is prejudice to anyone who faces a charge that has penal consequences as well as other significance or consequences attached to it. The fact that the matter is adjourned from one trial date to the next only compounds any inherent prejudice and raises it from minimal to more significant in the circumstances. [36] I appreciate that there is also a public interest in having matters dealt with on their merits. But there is an equally important public interest in having matters dealt with expeditiously. This requires ensuring sufficient resources are made available to adjudicate matters. Public respect is maintained in a process only where it is treated with respect by those responsible for administering it. Undue delay because of a lack of proper resources only diminishes the public s support of the justice system.

10 [37] In balancing the accused s interest and that of the public, in my view both are similar in that they both rest upon the need to have matters such as this dealt with as quickly as possible, which did not occur here. [38] In all of the circumstances I can only conclude that there has been a violation of Mr. Vellone s s. 11 (b) Charter rights. [39] Finally I note as well that I have great concerns with the explanation provided by the Justice of the Peace to Mr. Vellone as it related to what was to take place in the course of his trial. At the outset of the trial, after Mr. Vellone pleads not guilty, the justice of the peace says he is going to explain the procedure. He explains the process of calling the evidence and then says, based on the evidence then I ll ask you to give me a summary of evidence why you should not be convicted. [40] In my view, there are two difficulties with this statement. First, it suggests that the justice of the peace has predetermined the matter before hearing any of the evidence. That is, that the prosecution s evidence will indeed prove the allegation. Secondly, the justice of the peace is simply wrong in that Mr. Vellone has no obligation to show why she should not be convicted. The justice has reversed the burden of proof here and reversed the onus. It is always the prosecution who must prove their case beyond a reasonable doubt and that is the only test that should be applied. There is no test that requires an accused individual to show why he should not be convicted. [41] This error is again repeated by the justice of the peace at the end of the evidence when he asks Mr. Vellone for submissions. The justice of the peace says, Submissions means simply that just summarize the evidence whatever you have given the evidence in totality and say why you should not be convicted. This again suggests that the justice of the peace has already predetermined the matter even before the completion of submissions which is indeed wrong in law. As well, it is a clear expression that the learned justice of the peace is reversing the onus and placing

11 the burden upon the accused individual to show why he should not be convicted. [42] In the end, given that I have found that Mr. Vellone s s. 11 (b) Charter rights have been violated the appeal will be allowed and the charge will be stayed.