Court File and Parties

Court File No.: St. Catharines - 2111-998-11-S3024-00

Date: 2013-03-26

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kim Valliere

Before: Justice D.A. Harris

Application heard and Ruling made on: February 22, 2013

Reasons for Ruling released: March 26, 2013

Counsel:

• C. Lapointe, for the Crown/Respondent
• Kim Valliere, in person (accused/Applicant)

Reasons for Ruling

HARRIS J.:

Overview

[1] Kim Valliere has been charged with operating a motor vehicle while disqualified from doing so.

[2] This matter is scheduled for trial today on March 26, 2013.

[3] Mr. Valliere is representing himself.

[4] At one point in the proceedings Mr. Valliere brought an application to stay the charge pursuant to the Canadian Charter of Rights and Freedoms on the basis that his right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter had been infringed here.

[5] I dismissed the application on February 22, 2013 with reasons to follow. These are those reasons.

The Law

[6] Section 11(b) of the Canadian Charter of Rights and Freedoms provides that "Any person charged with an offence has the right to be tried within a reasonable time".

[7] The primary purpose of s. 11(b) is to protect the individual rights of the accused to liberty, security of the person and to a fair trial.[1]

[8] There is a secondary societal interest in having cases tried on their merits – a matter important to the maintenance of respect for the administration of justice.

[9] This application therefore requires a judicial balancing in order to determine whether the delay is reasonable. This balancing requires consideration of:

1. The length of the delay;

2. Waiver of time periods;

3. Reasons for the delay, including:

   • (a) inherent time requirements of the case,
   • (b) actions of the accused,
   • (c) actions of the Crown,
   • (d) limits on institutional resources, and
   • (e) other reasons for delay; and

4. Prejudice to the accused.[2]

Length of the Delay

[10] The total delay in this case will be a few days over 22 months. This delay is clearly of sufficient length to warrant judicial inquiry.

Waiver of Time Periods

[11] With respect to waiver, the onus is on the Crown to prove or establish waiver. A waiver must be clear and unequivocal with full knowledge of the rights the procedure was enacted to protect and of the effect waiver will have on these rights. The notion of waiver contemplates a choice has been made between available options. Where no real choice or option exists there can be no waiver. Agreements to a date within the proceedings in question does not constitute waiver where the agreement can be reached reasonably and fairly characterized as mere acquiescence in the inevitable.[3]

[12] It is the duty of the Crown to bring an accused person to trial. This requires that the prosecution apparatus and the government strive to expedite the trial to minimize the effect that is inherent in delay in the disposition of criminal litigation. There is no constitutional imperative upon the accused to bring himself or herself to trial. The protection of s. 11(b) of the Charter is not restricted to those who demonstrate a desire for a speedy resolution by asserting the s. 11(b) right.[4]

[13] Silence and acquiescence in the face of Crown requests for adjournments or in accepting the trial date that is offered clearly do not constitute waiver.

[14] That being said, many of the adjournments in this case were made at the request of Mr. Valliere or as a result of his actions. That is much more than silence and acquiescence. If these actions do not constitute waiver, they still must be viewed as actions by Mr. Valliere when determining the reasons for the delay.

Reasons for the Delay

[15] The charge against Mr. Valliere is a serious charge but there is nothing to suggest that this should be anything other than a straightforward trial which should not take more than one or two hours.

[16] Having said that, I note that there are certain time requirements in any case. These would include the intake period.

[17] This intake period would encompass such events as the bail hearing which took place on July 23, 2011 and the next court appearance on August 22, 2011 when Mr. Valliere received disclosure and a screening form from Crown counsel and the matter was adjourned to September 26, 2011, presumably so that Mr. Valliere could review this material.

[18] On the next four appearances[5], Mr. Valliere asked for the matter to be adjourned so that he could obtain a Legal Aid certificate and retain counsel.

[19] He did not always make those requests in a cooperative fashion however.

[20] On December 12, 2011, he stated, amongst other things, that "I claim common law jurisdiction. I do not consent and I waive my benefits".

[21] On January 30, 2012, he did not identify himself as Kim Valliere when asked by the presiding Justice of the Peace. He stated, again amongst other things, that "I do not consent to contract". When informed by duty counsel that this was not a contract, Mr. Valliere replied that it was.

[22] On the next appearance on March 12, 2012 he still did not have a lawyer, and he still did not want to set a date for trial. The presiding Justice of the Peace however adjourned the matter to April 20, 2012 for trial with or without counsel.

[23] On April 20, 2012 he did not enter a plea despite repeated attempts by the court to arraign him. He alleged that his rights had been infringed. It was not clear how his rights were allegedly infringed. It was not clear whether he was challenging the constitutionality of the Criminal Code provision making it an offence to drive while disqualified. He had not filed anything that complied with the rules regarding such claims. More importantly, his oral statements in court failed to articulate in any rational fashion just what he was claiming.

[24] The trial was adjourned to September 27, 2012 so that he could comply with the rules and clearly articulate what everyone presumed to be an application pursuant to the Canadian Charter of Rights and Freedoms.

[25] On September 27, 2012, Mr. Valliere again resisted identifying himself when asked to do so. He had filed a vague and difficult to understand Charter application. He complained that the Crown response had been late and he requested an adjournment so that he could review this properly. He declined a December 13, 2012 return date and instead the trial was adjourned to January 4, 2013.

[26] On January 4, 2013, Mr. Valliere appeared for trial before me.

[27] Yet again he declined to identify himself until compelled to do so.

[28] Yet again he declined to enter a plea when called upon to do so. When I indicated that I would direct that a plea of not guilty be entered on his behalf, he stated that "That's practicing law from the bench Your Honour, and that's my privilege to enter my own plea". I informed him that I would let him do that. He was again given an opportunity to do so. He declined to enter a plea and began asking a number of unrelated questions. I directed that a plea of not guilty be entered on behalf of Mr. Valliere.

[29] I then gave him an opportunity to argue his Charter challenge. His argument appeared to be no different than it was on the previous occasion. He was asserting that he had an unfettered right to drive a motor vehicle and that the Criminal Code provisions making it an offence to drive while disqualified were unconstitutional.

[30] I note that in the materials filed by Mr. Valliere prior to September 27, 2011, he referred to himself variously as "a common law man of inherent jurisdiction" and as a "Sovereign Man". He repeated the latter phrase when describing himself in court and also acknowledged being a "Freeman on the Land".

[31] Associate Chief Justice Rooke of the Alberta Court of Queen's Bench refers to both "Sovereign Men" and "Freemen on the Land" in Meads v. Meads, 2012 ABQB 571, [2012] A.J. No. 980 at paras. 172 through 182.

[32] I note in particular his comments at para. 174 where he stated:

Stated simply, Freemen on the Land believe they can "opt out" of societal obligations and do as they like: … [citations omitted] … A common theme in Freeman arguments is that state and court action requires the target's consent.

[33] Such beliefs would certainly be in keeping with the argument advanced by Mr. Valliere before me. It would also be in keeping with his behaviour before both me and other judicial officers.

[34] I found his argument to be devoid of any merit. It was settled law in Ontario that driving was a privilege rather than a right. It was also settled law that s. 259(4) of the Criminal Code was constitutional.

[35] I dismissed that application.

[36] I noted however that, between court appearances, he had filed a further application, this time to stay these proceedings on the basis that he had been denied his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms. The application was incomplete in that no transcripts had been obtained. I adjourned the matter to February 22, 2013 for argument of the delay issue. I ordered that transcripts be prepared. I also directed that the trial would proceed on March 26, 2013 if that argument was unsuccessful.

[37] I heard from Mr. Valliere on February 22, 2013 and then I dismissed the application. I indicated that my reasons would follow. As stated above, these are those reasons.

Prejudice to the Accused

[38] Everyone suffers prejudice as a result of being charged. This is inherent in the process itself. The prejudice of concern in the s. 11(b) analysis is not prejudice associated with the laying of criminal charges but the prejudice arising from the delay in processing or disposing of the charges.

[39] A court may infer or presume the existence of prejudice or it may be otherwise proven. Prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn. The inference of prejudice from a very long delay becomes nearly irrebuttable.[6]

[40] Mr. Valliere did not file any affidavits containing any information regarding possible prejudice. Nor did he present any evidence in court.

[41] During his submissions he did state that the matter had taken too long. It had cost him money. He had to stay at someone else's place. He made an unexplained reference to a CPAC machine. He indicated that the case should have been over with a long time ago.

[42] There was no indication of why this had cost him money or how much it had cost him.

[43] There was no indication of how the bail term requiring that he live with his surety had caused him prejudice.

[44] There was nothing to suggest that the evidence in this case might have deteriorated over time. Common sense would suggest otherwise. There are only two issues in this case as I see it. The first is whether Mr. Valliere was driving a motor vehicle at the time and in the place specified. The second is whether he was disqualified from doing so. I do not see how the memories of any witnesses with respect to those facts would be affected over time.

[45] Finally, and most importantly, I note that any prejudice that may have arisen here is primarily due to the actions of Mr. Valliere.

Analysis

[46] In Morin, supra the Supreme Court of Canada stated at page 21 that "it is appropriate for this Court to suggest a period of institutional delay of between eight and ten months as a guide to Provincial Courts".

[47] This Supreme Court of Canada guideline is neither a limitation period nor a tariff. It is however, an instructive device for measuring the constitutional state of the inventory of cases before the Court. Still, it is necessary to examine the particular circumstances of each case.[7]

[48] As I see it, Mr. Valliere was not ready to set a date for trial until March 12, 2012. Up until then he had claimed that he was attempting to obtain Legal Aid and to retain a lawyer.[8] In fact, he did not want to set a date for trial on March 12. The court however went ahead and set the trial date of April 20, 2012, some five weeks later.

[49] Five weeks fall well within the guideline set out by the Supreme Court of Canada in Morin, supra.

[50] After that, the further adjournments occurred because Mr. Valliere attempted to bring a Charter challenge that was both without merit and without compliance with the rules of the court.

[51] Even then, the court attempted to provide him with new trial dates within a reasonable time.

[52] On April 20, 2012, the trial was adjourned until September 27, 2012, or just over four months later.

[53] On September 27, 2012, he was offered December 13 but he declined that. That would have been an adjournment of two and one-half months.

[54] As it was, he appeared before me some three weeks later than that.

[55] Nine months and two days would have elapsed between March 12, 2012 and December 13, 2012. Nine months and 24 days would have elapsed between March 12, 2012 and January 4, 2013. Both times still fall within the guideline set out by the Supreme Court of Canada in Morin, supra.

[56] Throughout the process Mr. Valliere consistently appeared to be operating on the assumption that he was not bound by the rules set by the court. Rather, he was free to do as he liked.

[57] When all of these facts are taken into account, the fact that the actual trial is scheduled to take place a little over one year after Mr. Valliere was ready to set such a date is a testament to the efforts of the system to accommodate the demands made on it by Mr. Valliere.

[58] Accordingly I found that Mr. Valliere had completely failed to establish on a balance of probabilities that his right to a trial within a reasonable time was infringed here.

[59] The application was therefore dismissed.

Released: March 26, 2013

Signed: "Justice D.A. Harris"

Justice D.A. Harris

Footnotes

[1] Reference may be made to R. v. Askov, 59 C.C.C. (3d) 449; R. v. Morin, 1992, 71 C.C.C. (3d) 1.

[2] Ibid.

[3] Askov, supra, at pp. 481 to 482; Morin, supra, p. 15; Pusic, supra, at pp. 701 to 702.

[4] Morin, supra, at p. 23; Pusic, supra, at p. 720.

[5] September 26, 2011, November 14, 2011, December 12, 2011, and January 30, 2012.

[6] Askov, supra, at pp. 482 to 483, and pp. 484 to 485; Morin, supra, at p. 23 and p. 28; Pusic, supra, at p. 721.

[7] R. v. Pusic, 30 O.R. (3d) 692 (Ont. Ct. Gen. Div.) at p. 719.

[8] There was however no evidence before me that Mr. Valliere had ever actually made an application to Legal Aid Ontario or made any effort to retain a lawyer.