minicounsel

Date: June 27, 2019

Ontario Court of Justice Central West Region Regina

-and-

Ahmed Fahmy

Hearing re: Motion to Adjourn Date of Hearing: June 27, 2019

Prosecution: Zenko, C.

Defence: Bendgi, Y. (P1 Licensee)

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended ("HTA")
R.R.O. 1990, Reg. 200: Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings

1. Adjournment Motion Denied

For the reasons set out below, I am declining to grant the Prosecution motion for adjournment, made orally today.

Background and Evidence

2. Matter Before the Court

The matter is before the Court today for a trial. The history is relevant.

3. Charge and Offence Date

The defendant is charged with careless driving pursuant to s.130 of the HTA, and pursuant to Part III of the POA. The offence date alleged is 15 March, 2018; however, the Information setting out the charge was sworn on 12 September, 2018, just a few days short of the six month limitation set out in the POA.[1] There is no information before me as to why the matter took that long to produce a charge; however, comments on the record suggest that the incident giving rise to the charges involved a major motor vehicle collision involving four motor vehicles and multiple witnesses. I have no information as to whether there were injuries or the extent of any, nor of any fatality.

4. First Appearance and Disclosure

After the Information was sworn, a judicial summons was issued, returnable on 16 October, 2018, and the defendant appeared through a retained licensee of the Law Society of Ontario who received disclosure on his behalf.

5. Subsequent Appearances and Pre-Trials

There was a further appearance in November and again in December, and information suggests that there was an outstanding request for transcription of at least part of the disclosure. That remained in issue and two judicial pre-trials were held in March and May, 2019. The day following the March pre-trial, the disclosure issue was apparently resolved.

6. Third Party Records Issue

That said, the defence indicates that the defendant had a discussion with the OIC about a video that may have been captured by the Ministry of Transportation of Ontario. The Prosecution holds that if this exists (the Prosecutor has no knowledge as to whether it does or does not), it would constitute a third party record and is not produceable by the Prosecution.

7. Trial Date Set

The matter was set for trial on May 10, 2019, for essentially a full day, for today's date.

8. Prosecution Witness Representation

The defence asserts and the Prosecution does not contest that they were told the Prosecution would be calling four witnesses, two police officers and two civilians.

9. Crown's Adjournment Motion

At the outset of proceedings today, the Prosecution advanced its motion for adjournment. They asserted that it would only be relying on one police witness – the Officer in Charge ("OIC") who was present and one civilian witness, who has not been served with a summons to attend.

10. Efforts to Contact Witness

During evidence, the investigating officer advised that he was notified about three weeks prior to today's date of the trial date and to contact the civilian witness. He made several attempts to contact that witness at the phone number he had for that witness but connected to a response that advised that no voice mail messages could be left. There is no evidence regarding other efforts to contact the witness in any other fashion, nor of any request for the issuance of a summons to witness, and, accordingly, no information about any efforts to serve such a summons if one had been judicially authorized.

11. Prosecutor's Recent Assignment

The Prosecutor confirms he is recently assigned to the local Prosecution team and took over carriage of the file upon joining the office. Shortly after being installed in his position, he reviewed the file and advised the local OPP co-ordinator of the trial date and the need for the witness. While there is no evidence directly on this point, it appears that this is what triggered the information to the OIC and his subsequent efforts to contact the witness.

12. Last-Minute Efforts

The Prosecutor further advised, and the OIC gave evidence that they discussed the matter while both were in court yesterday, and the OIC followed up with the witness yesterday, but did not make contact.

13. Failure to Communicate Change in Witness Strategy

The decision to call only two witnesses was not communicated to the defence prior to the defence arriving in court this morning.

14. Crown's Position on Witness Obligation

It would appear that the Prosecutor may not have been apprised of the prior representation that the Prosecution would be calling four witnesses, and this may explain why he saw no need to advise the defence; however, the Prosecution further takes the position that it has no obligation to call or produce any witness at trial.

15. Prosecution Submissions Framework

The Prosecution made his initial submissions based on materials in a "prosecutor's Manual". The Court invited submissions on the factors enunciated in Mississauga (City) v. Malik and he did so.

16. Prosecution Arguments

Specifically, he points out:

a. First Trial Date This is the first trial date.

b. Alternative Trial Dates Available Although the matter has taken some time to get to this stage, a new trial date is available. Dates were offered in July and October (as an aside, the defence acknowledged it would be available on the available dates). The October dates would be later than eighteen months from the alleged offence date but only some nine and a half months from the date the Information was sworn, and there is little likelihood of a delay issue arising.

c. Multiple Prior Appearances It is clear that there have been multiple appearances prior to today's date, given that this matter proceeded by way of Part III of the POA, and the need for pre-trials. He highlights that even at this stage, the defence holds out the potential of a disclosure issue and there is no application for production of third party records if they exist.

d. Bona Fides of Request Is this request bona fide? In the prosecution view, and having particular regard to the recent appointment of a local Prosecutor, reasonable efforts were made to produce the witness for trial. In this regard, the request is not for any improper purpose. In any event, the Prosecution concedes that an order that the matter be peremptory on the Prosecution on any later date will address any concerns as to why this adjournment request is arising at this late hour.

e. Defence Not Prejudiced The defence will not only avoid prejudice with the grant of an adjournment but may be advantaged, now that it is aware of the Prosecution intent in terms of witnesses and now being able to decide whether to seek to compel the attendance of any additional witnesses for the defence.

f. Importance of Adjudication on Merits Clearly, if the requested adjournment is not granted, the Prosecution case will, in effect, collapse. In the Prosecution view, this is a significant allegation (the circumstances giving rise to the charge described above), and warrants adjudication on the merits.

17. Defence Opposition

The defence opposes the adjournment. Defence submissions may be summarized as follows:

a. Defence Ready to Proceed The defence is ready to proceed and has made itself available for a full day trial today. The inference to be born is that there is prejudice to the defendant in terms of both time and cost, although this was not advanced in the defence submissions.

b. Prosecution Responsibility for Witness Attendance The failure of the Prosecution to produce its witness is not in any way in the hands of the defence. The Prosecution knew of the trial date and failed to take reasonable steps to ensure the attendance of that witness.

c. Reliance on Prosecution Representation The defence relied on the Prosecution representation when the trial was set that it would be calling four witnesses, and this is further evidence of unfair behaviour on the part of the Prosecution.

Outcome

18. Starting Point: Malik Framework

The starting point for my analysis is the decision of Ricchetti, J, of the Superior Court in Mississauga (City) v. Malik.

19. Adjournment Factors

In that decision, His Honour set out a series of considerations for these courts to consider when ruling on motions for adjournments. He said:

Where the request for an adjournment is made, the judicial officer is bound to demonstrate that the request was fairly listened to and the judicial officer considered all relevant factors in deciding whether to grant the adjournment. This would include such factors as:

a. Length of Time Since Offence The length of time between the date of the offence(s) and the court date the adjournment is being sought. The longer the period of time, the greater the likelihood the adjournment should not be granted as the likelihood of prejudice to the defence increases.

b. Time Before New Return Date The amount of time before the matter can be scheduled. Again, the longer the period of time before a new return date, the greater the likelihood the adjournment should not be granted.

c. Prior Court Appearances Whether this is the first time the matter has come up. If the matter has come before the court on several or numerous occasions before, it is more likely an adjournment should not be granted because of the increasing delay by one party or the other.

d. Reason for Adjournment Request What is the reason for the adjournment request? Is it bona fide? Is it because of an administrative error? Is it an attempt to delay the matter? Bona fide requests or administrative errors may strongly favour granting the adjournment. On the other hand, if it appears the party seeking the adjournment is attempting to delay the matter or is due to a systemic problem within the administration, this may strongly favour denying the adjournment.

e. Prejudice to Opposing Party Will the party who has not sought the adjournment be prejudiced if the adjournment is granted? If so, are there any other ways in which the matter can be dealt with expeditiously or the prejudice lessened?

f. Impact of Not Granting Adjournment What is the impact of not granting the adjournment? In this case, it was clear to the Justice of the Peace in both cases that the result would be the dismissal or stay of the charges. The impact on society's interest in having public safety charges heard on the merits is a factor to be considered as well.

20. Motion Must Fail

As set out above, in my view, the Prosecution motion for an adjournment must fail.

21. Failure to Demonstrate Reasonable Efforts

To start, the Prosecution has failed to satisfy me that reasonable efforts were made to compel the attendance of the witness. It appears that the first effort to do so may have started with the Prosecutor's review of the brief upon taking on this role. While this particular prosecutor may not be liable to be blamed for the matter not being flagged earlier, given the timing, it is clear that the Prosecution office knew of the need for the witness upon the date for trial being set, on the 10th of May, some six weeks ago. There is nothing before me to suggest that any steps were taken to ensure the attendance of that witness until the file was review afresh.

22. Defence Preparation and Investment

While it is true that today's proceeding is the first trial date, that does not respect the burden on the defence prior to today's date. Defence appeared on the first appearance date by retained representative, and promptly signalled the need for clarification of the notes. Those notes were not produced until the day following the first judicial pre-trial in the matter. Clearly, the defence has invested heavily in preparing for today's trial.

23. Distinction from Malik and Post-Jordan Considerations

As a further note, I am mindful that the decision in Mississauga (City) v. Malik dealt with matters under Part I of the POA. In that regard, the factors may be distinguishable. That case pre-dates R. v. Jordan, and all the efforts this court has invested in enhanced case management and ensuring trial readiness. Although an alternative trial date may be on the close horizon, accepting the notion that a first trial date – particularly when the matter is set exceptionally for a full day trial – disrespects the resources necessarily committed to trials.

24. Importance of Matter Does Not Excuse Preparation Failures

While it may well be that the matter is important to be determined on its merits (multiple involved vehicle, etc), the prosecution has not signalled any injuries or fatalities. The corollary to the Prosecution argument regarding the importance of this matter would, in my view, reasonably be matched by efforts to ensure the trial can proceed as directed by the Court on the consent of the parties. The failure to satisfy me that even rudimentary steps such as summoning a witness was taken belies the proposition that the matter is that important.

25. Crown's Role as "Local Minister of Justice"

It is generally accepted that the Prosecutor serves as the "local Minister of Justice". As such, the role of the Prosecutor is to ensure that the matters are properly put before the Court to allow the Court to make sound decisions. Respectfully, once the Prosecutor signals an intent to call witnesses, to then rely on a subject uncommunicated decision to reduce the number of witnesses to be called and then to rely on the possibility that the defence may need to summons any such witness(es) as an offset against prejudice is not in keeping with the high and honourable standards to which the Prosecution is held.

26. Procedural Deficiency and Lack of Courtesy

Finally, I note that this matter is by way of oral motion on the trial date and not in the normal fashion anticipated by what is commonly referred to as Rule 200 under the Courts of Justice Act. I understand the Prosecution position that it only learned of status of the witness either yesterday or this morning; however, that again belies the absence of focus on preparing for this matter. Respectfully, that Rule is honoured more in its breach than compliance, much to the detriment of orderly operation of court proceedings. Even in the event that a proper motion could not be prepared and served, courtesy would have suggested notice by phone at the earliest opportunity. Given that the Prosecutor had knowledge of the efforts to contact the witness – and that only by phone and not by summons – it would have been prudent to contact the defence to advise them by phone, and perhaps avoid the prolonged proceedings this morning.

Issued at City of Burlington, Ontario, June 27, 2019

His Worship Donald Dudar Justice of the Peace

Footnotes

1S.76(1)

2I was the justice whose decision was the subject of the companion matter addressed by Justice Ricchetti's decision.