Court Information
Ontario Court of Justice
Location: Cornwall
Information: 7575353B ICON: 3960
Parties
Between:
Her Majesty the Queen
— and —
Ashley Galbraith
Before the Court
Justice of the Peace: Claire Winchester
Heard: February 7, 2018
Oral Reasons for Judgment: February 28, 2018
Written Reasons Released: March 5, 2018
Counsel
For the Crown: Raffael Joanis-Beaulieu
For the Defendant: Ashley Galbraith (on her own behalf)
Reasons for Judgment
JUSTICE OF THE PEACE WINCHESTER:
1This is an application by the defendant pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms. The defendant claims her rights have been violated under sections 7, 11(b), and 11(d) of the Canadian Charter of Rights & Freedoms as a result of the Crown's failure to provide disclosure in a timely fashion. Further, in the event the Court finds that that right has been infringed, the defendant seeks the remedy of either a stay of proceedings or an adjournment pursuant to s. 24(1) of the Charter as well as in either instance an order of the payment of costs by the Crown.
2On August 7, 2017, Ashley Galbraith was given a Part 1 Certificate of Offence, s. 128 of the HTA, for speeding 119 km in an 80 km zone. On August 8, 2017, the defendant filed a Notice of Intention to Appear indicating a plea of not guilty and requesting a date for trial. She was invited to and attended the Early Resolution meeting with the Prosecutor on October 10, 2017; she did not accept the proposed resolution. A trial date was set for February 28, 2018. The total time from the beginning of this matter to the anticipated trial date is 7 months.
3A written request for disclosure was sought 4 times by the defendant on September 15, 2017; October 4, 2017; October 10, 2017; and October 31, 2017, and she received assurances from administration that her requests had been forwarded to the Office of the Prosecution. She did not receive an answer to her requests. The Prosecutor stated that the 6 pages of typed disclosure from the OPP officer were received on November 14, 2017. This disclosure, albeit the pending McNeil Report, was forwarded to the defendant on February 6, 2018.
4The prosecution policy concerning the provision of disclosure is usually 2 weeks after receipt of a written request. The delay in providing disclosure in a timely matter to the defendant in this case was due to staffing changes in the Office of the Prosecution.
5The defendant claims that the delay in not receiving disclosure promptly and therefore delaying trial has caused her anxiety, stress, and worry. Further, not having requested an Early Resolution date but having accepted it nonetheless in the hopes of resolution, she claims to have incurred travel costs from her residence in Sault Ste Marie to Cornwall on two occasions, on October 31, 2017, and on February 7, 2018, for hotel, food, mileage, and lost wages. She also claims to have incurred administration costs for transcripts, courier services, and the preparation, research, and compilation of the Notice of Constitutional Question submitted on January 22, 2018, for a total of $4,162.79.
Charter Provisions
6The defendant states that her rights have been violated and has invoked sections 7, 11(d), and 11(b) of the Canadian Charter of Rights and Freedoms. The relevant Charter provisions read as follows:
Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
Section 11(d): "Any person charged with an offence has the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal."
Section 11(b): "Any person charged with an offence has the right to be tried within a reasonable time."
Analysis of Disclosure Obligations
7R. v. Stinchcombe, [1991] 3 SCR 326 (SCC), stands for the proposition that there is a general duty of the Crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it. This duty is ongoing and continuing. Issues are whether the failure to disclose is merely a mistake or whether it amounts to an unacceptable degree of negligence.
8I have not found in case law any rulings as to a specific length of time in which the prosecution must present disclosure to defendants; the policy is established by the Office of the Prosecution and may vary from region to region. A protocol established in the Cornwall POA Prosecutor Office states that disclosure is provided to defendants two weeks after the written receipt for disclosure. It is up to me, the trier of fact, to determine if the reasons for the delay were due to an unacceptable degree of negligence.
9In the present matter, the failure to disclose promptly was caused by a mistake emanating from the Office of the Prosecution due to staffing issues. The last request for disclosure was received on October 31, 2017, and the disclosure was received in the Prosecution Office on November 14, 2017. The prosecution did not note or forward this disclosure in November 2017 but did so after receiving the defendant's Notice of Constitutional Question on February 6, 2018. The prosecutor's intention is to provide forthwith additional disclosure as requested by the defendant.
10Case law utilizes strong words such as "well beyond inadvertent;" "careless failure;" "recklessness;" "indifference to duty;" "marked and unacceptable departure from usual and reasonable;" "clearly measurable infringement;" "denial of right" to describe unacceptable prosecution conduct or acts. In the present matter, at no time was there a wilful neglect of duty or an unacceptable degree of negligence on the part of the prosecutor. When faced with staffing changes, there is always the hope that transition will occur smoothly. Nevertheless, it is not always possible to gauge accurately the required mentoring and subsequent learning of the parties involved. Mistakes are not unusual in such situations. I find that the prosecution delay in providing disclosure in this matter is due to a mistake and, therefore that s. 11(d) of the Charter of Rights and Freedoms is not engaged. Further, s. 7 is not engaged because insufficient prejudice was demonstrated and the late disclosure has not violated the defendant's right to make full answer and defence.
Analysis of Delay Under Section 11(b)
11R. v. Jordan, 2016 SCC, states that net delay is calculated from the date of offence to the end of the trial with the calculation and subtraction of the delay attributable to the defence. If the net delay falls below the ceiling of 18 months then the delay is presumptively reasonable. The Supreme Court of Canada implicitly left open the possibility that a different presumptive ceiling would apply in proceedings under Part 1 of the POA. The prosecution of minor regulatory offences is inherently less time-consuming and the presumptive ceiling should be commensurately lower at 14 months.
12To make out a breach of s. 11(b), the defence must prove it took meaningful steps demonstrating a sustained effort to expedite proceedings and that the case took markedly longer than it reasonably should have. In the present case, there is no delay attributable to the defendant and the defendant took meaningful steps to expedite proceedings. Nevertheless, to date, the time elapsed since the date of offence to the proposed date of trial is 7 months, well below the ceiling of 14 or 18 months. I find that s. 11(b) of the Charter of Rights and Freedoms is not engaged in this matter.
Analysis of Costs Application
13POA courts have the power to order payment of legal costs by the Crown under s. 24(1) as a remedy for Charter breaches/violations arising from untimely disclosure albeit in limited as well as exceptional or remarkable circumstances (R. v. O'Connor, Court of Appeal) and as the court considers appropriate and just in the circumstances. They are intended as a means of disciplining and discouraging flagrant and unjustified incidents of non-disclosure. The power extends to award costs against the Crown where the court is satisfied that the defendant has been misled by certain procedural irregularities as set out in s. 90(1).
14In POA matters, many of the prosecutions may involve minor regulatory infractions. Claims for Charter relief for regulatory infractions usually involve significant fines and the possibility of imprisonment. In R. v. Jedynack, [1994] O.J. No. 29 (OCJ), Justice Goodearle of the Ontario Court of Justice notes: An order for costs against the Crown under the Charter of Rights and Freedoms should only be made for acts "well beyond inadvertent or careless failure to discharge a duty. Rather the conduct would have to fall within the realm of recklessness, conscious indifference to duty, or whether conscious or otherwise, a marked and unacceptable departure from usual and reasonable standards of prosecution. Such conduct must be seen to have resulted in an indisputable and clearly measurable infringement or denial of a right and result in serious prejudice to the accused."
15In R. v. Hallstone Products Ltd., [2000] O.J. No. 1051, [2000] O.T.C. 22, Justice LaForme writes: "The Crown's conduct was not underhanded, reckless or abusive. Not every Charter breach entitled the wronged party to costs."
16Application for costs has a 3-stage analysis:
Was there misconduct on the part of the Crown? If not,
Was there an unacceptable degree of negligence on the part of the Crown to disclose? And, did this failure to disclose constitute a breach of a Charter right (section 7), i.e. right to make full answer and defence infringed? If so,
Was there a causal connection between the misconduct or the unacceptable degree of negligence and the costs claimed by the defendant?
17Did negligence cause more court appearances and therefore more costs? In the case of R. v. Ashley Galbraith, I have not found any negligence on the part of the Prosecutor. The defendant chose to attend the Early Resolution meeting and therefore, there is a total of two court appearances to date.
18In The Municipality of York v. Tomovski, 2017 ONCJ 785, Justice McInnis of the Ontario Court of Justice wrote: "There is no stigma associated with being given a speeding ticket because society does not regard simple speeding as morally blameworthy. Having to wait 18 months to fight a speeding ticket causes no stigma-related prejudice nor is it any great affront to substantive justice if the motorist avoids paying a fine because the trial took too long to come to court." In R. v. Jordan, supra, the Court wrote: "The absence of prejudice can in no circumstances be used to justify delays after the ceiling has been breached." In this case, the ceiling of 18 months has not been breached and the defendant has not suffered prejudice.
Remedies
19"Options of relief include a stay of proceedings or an adjournment. Untimely pre-trial disclosure will rarely merit a stay of proceedings when the court can protect the fairness of the trial with a disclosure order." R. v. O'Connor, [1995] 4 S.C.R. 411 at paragraphs 75-83. In disclosure matters, it was more appropriate to order disclosure, an adjournment, or a new trial. Finally the majority was of the view that in disclosure matters, the more appropriate and available remedies short of a stay of proceedings include an order compelling disclosure, an adjournment, and an order for a new trial or a mistrial where applicable.
20Section 24(1) confers a broad remedial mandate and the widest possible discretion on a court to craft remedies that must be easily available for violations of Charter rights. In the present matter, the remedy will be an adjournment to a date for trial and there will be no order for costs.
Released: March 5, 2018
Signed: Justice of the Peace Claire Winchester