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I was at the appeal of R. v. Vellone in beautiful Courtroom 2 at Osgoode Hall yesterday. Very interesting discussion by Counsel all around.

Background

Mr. Vellone was charged with speeding 3 years ago, filed a Notice of Intention to Appear, and received a notice of trial.  On the trial date, the temperature of the courtroom exceeded 80° Fahrenheit and the Justice of the Peace, on his own motion, adjourned the trial. On the next trial date, Mr. Vellone raised his s. 11(b) Charter issue (the right to a speedy trial), however, he did not notify the Ontario Attorney General nor the Attorney General of Canada. A trial was held and Mr. Vellone was found guilty.  Mr. Vellone appealed to the Ontario Court of Justice and won. The Regional Municipality of York appealed.

Grounds

There were two grounds that were before the Court of Appeal, but the argument centred around giving notice to the Prosecutor for the Region of York.

Section 109 of the Courts of Justice Act state the following:

Notice of constitutional question

109.(1)Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:

1. The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.

2. A remedy is claimed under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.

. . . . .

In the first appeal, the argument was raised that s. 109 does not apply to municipal governments that have Minutes of Understanding (MOUs) with the Government of Ontario.  An MOU delegates the providing Provincial Offences Courts, Municipal Prosecutors, support staff, and enforcement of all POA cases in the municipality.  The Province of Ontario provides Justices of the Peace.  Section 169 of the Provincial Offences Act (POA) states:

Municipality not Crown agent

169.  A municipality that acts under a transfer agreement does not do so as an agent of the Crown in right of Ontario or of the Attorney General. 1998, c. 4, s. 1 (2); 2002, c. 17, Sched. C, s. 23 (12).

So the question becomes, if you notify the AG of Ontario and the AG of Canada, do you even need to notify the Prosecutor?

Arguments by the Appellant

(Region of York)

An unrepresented defendant must find out the rules of the court they are dealing with. Counsel compared going to court to fixing a water leak: do you hire a plumber or do you get the information to fix the leak yourself?  Therefore, the rules apply to everyone.  The Region of York also relies upon the common law and the rules natural justice in that notice has to be served to all parties, including the municipal prosecutor.

The delays that occur in the justice system cannot be attributed to York Region.  Counsel presented some statistics of scheduled court days against actual court days and found that actual court days were significantly less than the scheduled ones due unexpected absences of Justices of the Peace.

Ultimately, Mr. Vellone did not notify the AG of Ontario or the AG of Canada, therefore the previous appeal court made an error in law to hear the s. 11(b) Charter argument.

Arguments by the Intervenor

(Ministry of the Attorney General, Province of Ontario)

The AG agrees with the Region of York in that notice should be served to all parties of a court case on the basis of natural justice.

The delegation of powers under MOUs is enough to trigger s. 109 of the Courts of Justice Act.  However, agents for the municipality (prosecutors) in POA trials are on Crown Attorneys due to the fact that there are less powers for agents.  S. 109 is also triggered by the citations “R. ex. rel. (insert name of municipality here) v. Defendant.”  It is the Queen in relation to the municipality that is a party to the trial.

There were questions from the panel of Justices that asked about what happens to all the s. 11(b) Charter motions that the Ministry of the Attorney General (MAG) gets.  The Intervenor said that they use this information to spot-check on problems with the Courts at all levels.  If a particular constitutional problem comes up that requires the MAG’s attention, they will work with the prosecutor in charge of that file.  Only occasionally does the MAG send Notices of Constitutional Questions (NCQs) to local municipal prosecutors.  By and large, the MAG does not have the resources to intervene on a Constitutional Question.

Arguments of the Amicus Curiae

(“Friend of the Court” appointed by the Court of Appeal, for the Respondent)

Amicus stated that there is no current authority on s. 11(b) Charter motions.

Section 109 of the Courts of Justice Act does not provide for notice to municipalities and by the same token, there is no common law tradition in regards to POA matters, over its 30 year span.  If municipal prosecutors want notice, then it is up to the Provincial Legislature to amend the current law.  In addition, the argument that Ontario does not have the resources to intervene in NCQs fails because the AG of Ontario has never intervened and has never shown an inclination to do so.  Recently, the Law Commission of Ontario has recommended that NCQs for Provincial Offences, notices to the MAG should not be mandatory for Charter applications.

Section 109 is a procedural in nature, while the use of the Charter is substantive law.  Using the Charter of Rights and Freedoms should not be trumped by a procedural rule.

Finally, since s. 169 of the POA says that a municipality is not an agent of the provincial Crown, therefore, the municipality is not a party of a trial.

Arguments of Mr. Vellone

(The Defendant/Respondent)

Mr. Vellone said that, as an unrepresented defendant, he was at a disadvantage because of the fact that the courts do not have forms for him to use to advance his Charter rights, that the rules of the POA court are not accessible, and that he should not be penalized for  not knowing the rules.

The Decision

The appeal by the Region of York was granted on the s. 109 issue only.  The remedy, offered by Counsel for York Region, was accepted by the Court of Appeal:  a new trial, upon which the charges will be withdrawn by the municipal prosecutor.

My Two Cents

I’m very sympathetic to Mr. Vellone.  The Court ruled on the s. 109 issue, but in a broader context, this is about Access to Justice.  If the Court caters to self-represented litigants, like Mr. Vellone, then it should, in the very least, provide the materials to help them do that.  A proper form for a Notice of Constitutional Question is a good place start since Form 4F is one borrowed from the Superior Court of Justice and is the one most often seen in the Provincial Offences Courts of York Region.  A set of guidelines as to how to fill out that form would be good as well.

Most importantly, there should be a consolidation of all rules, regulations, and practice directions.  All of the rules pertaining to the POA Courts are found in:

  1. The Provincial Offences Act itself and
    • Costs, Revised Regulations of Ontario 1990, Regulation 945
    • Electronic Documents, Ontario Regulation 497/94
    • Extensions of Prescribed Times, Revised Regulations of Ontario 1990, Regulation 946
    • Fee for Late Payment of Fines, Ontario Regulation 679/92
    • Fine Option Program, Revised Regulations of Ontario 1990, Regulation 948
    • Forms, Ontario Regulation 108/11
    • Parking Infractions, Revised Regulations of Ontario 1990, Regulation 949
    • Proceedings Commenced by Certificate of Offence, Revised Regulations of Ontario 1990, Regulation 950
    • Victim Fine Surcharges, Ontario Regulations 161/00
  2. The Courts of Justice Act itself and
    • Rules of The Ontario Court (Provincial Division) In Provincial Offences Proceedings, Revised Regulations of Ontario 1990, Regulation 200
    • Rules of the Ontario Court (Provincial Division) in Appeals Under Section 135 of the Provincial Offences Act, Ontario Regulation 722/94
    • Rules of the Ontario Court (General Division) and the Ontario Court (Provincial Division) in Appeals under Section 116 of the Provincial Offences Act, Ontario Regulation 723/94
    • Rules of the Court of Appeal in Appeals Under the Provincial Offences Act, Ontario Regulation 721/94

Would you consider this list accessible? It will be interesting to find out the reasons from the Court of Appeal in its written reasons.