Court File and Parties

Court File No.: Owen Sound 12-316 Date: 2013-05-01 Ontario Court of Justice

In the Matter of: An appeal under clause 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

In the Matter of: A prosecution under bylaw number 52-2011 Dynamic Beach Park Bylaw for the Town of the South Bruce Peninsula

Between:

JOHN STRACHAN Appellant

— AND —

JOSEPH SZEWCYK Respondent

Before: Justice J.A. Morneau

Heard on: April 9, 2013

Reasons for Judgment released on: May 1, 2013

Counsel

John Strachan ................................................................ self-represented for the private prosecution

Robert Scriven .......................................................................... for the respondent Joseph Szewczyk

Background

On appeal from an order by Justice of the Peace A. Marquette on November 19, 2012 withdrawing/dismissing the charge and ordering costs to be paid by the appellant.

Judgment

Morneau, J.:

Facts

[1] The appellant commenced a private prosecution on the 8th of June 2012 by swearing an information alleging that he had reasonable and probable grounds to believe that the respondent had on or about the 7th day of April 2012 committed the offence of driving a motorized vehicle on the beach. This charge was laid pursuant to a municipal bylaw for the Town of the South Bruce Peninsula.

[2] The provincial attorney general did not intervene in this matter.

[3] Based on the transcripts filed with the appeal and the information itself the first appearance on this matter was on the 23rd of July 2012. The appellant was present. A student at law, Mr. Pattullo, appeared for the respondent. The parties told the justice of the peace that they had agreed that the matter be adjourned to October 15th for trial. The justice of the peace noticed that proof of service of the summons had not been filed. The appellant advised that he had served the respondent but did not have the paperwork with him. Mr. Pattullo advised his worship that the respondent had been served nonetheless his worship directed that the respondent had to be served again. The appellant agreed to reserve the respondent for August 27.

[4] It was not necessary for this delay in the proceedings. The respondent clearly had been served. He was represented by a law firm. The parties had already agreed to a mutually satisfactory trial date. The respondent had accepted the jurisdiction of the court.

[5] On August 27 the appellant and Mr. Pattullo appeared before a different justice of the peace. The parties agreed to a trial date of October 22nd. The appellant indicated that he would be calling 2 witnesses – one of whom would be him. The defence indicated they would be calling one witness. There was some discussion about disclosure and then the matter was set over for trial. No one raised any issue about the appellant prosecuting and testifying.

[6] On October 22nd the appellant and Mr. Pattullo appeared before His Worship Marquette. Before the respondent was arraigned his worship asked the appellant if he intended to testify and he said yes. His worship said he was "looking through this, and legally, and I'm going to check this out …I'm going to have to put this over". His worship then said he wanted to get legal advice from Toronto to see if the appellant could testify while prosecuting the charge. His worship did not ask for input from the parties.

[7] His worship said he was seized of the matter and adjourned it to the 19th of November. The appellant confirmed that the 19th was fine. A third person, Mr. Gammie, spoke up during the proceedings advising that he was a witness and that he would provide evidence in an affidavit and let the appellant prosecute. His worship thanked Mr. Gammie but indicated he wanted to proceed by adjourning. The information was endorsed as adjourned to November 19th as a "speak to" matter with His worship being seized. [Mr. Gammie was also present at the hearing of this appeal.]

[8] In my own review of the file transferred from the trial court there is a document brief that was prepared by the appellant and stamped filed with the trial court on October 12, 2012. It appears to be disclosure. This brief should not have been filed with the court. It should have been provided to the defence only. I infer that when his worship referred to "looking through this" he was referring in part to the disclosure brief. I do not know. However, it would be improper for the justice to review the disclosure and preside over the trial.

[9] I am also mindful that before a private prosecution is commenced the informant is required to provide information to the justice of the peace and to complete an intake form so that the justice can satisfy himself that there are reasonable grounds to support the issuance of process. Given the date stamped on this material I have inferred that the document brief is something separate from the initial intake material.

[10] I am not faulting the appellant for filing the disclosure with the court. During the August 27th appearance the justice of the peace advised the appellant to file the municipal bylaw with the court in advance of the trial. The appellant explained that he had, but that it was returned to him for safekeeping. He may have been following that direction when he filed the volume of material which does include a copy of the bylaw.

[11] This issue also highlights the appellant's lack of understanding of the process. In that however, he is not alone. It also speaks to the fact that on October 22nd the justice should have directed that the disclosure package be sealed or returned to the appellant immediately or at least inquired why it was in the court file.

[12] On November 19th the appellant did not appear. The respondent and Mr. Pattullo did appear. His worship indicated that he had decided that the appellant would have to choose whether to prosecute or to be a witness but he could not do both. After paging the appellant's name and getting no response his worship inquired about the respondent's position. Mr. Pattullo asked that the charge be dismissed indicating that he had been prepared for trial on two previous occasions.

[13] Mr. Pattullo asked if he could address the issue of costs and had an interim statement of account with him. His worship then stated that the charge "will be withdrawn, charge withdrawn by me". The clerk asked for clarification asking if it was dismissed or withdrawn and his worship said "I'm withdrawing it. They're not here. He's ready to go three times for trial, and, submit costs. I guess you're going to have to submit the costs".

[14] Mr. Pattullo handed in a statement of account, Exhibit #1, and his worship said he would sign it. He asked no questions about the statement of account. He then went on to state "Dismissed, it's gone. Withdrawn."

[15] Exhibit #1 was entitled "interim statement of account". Mr. Pattullo's business card was stapled to it indicating that he was an articling student. The account covered 32 hours and 25 minutes at $100.00 an hour and disbursements totalling $4,419.51. The time frame encompassed from July 3rd to October 22nd and included matters that may have been collateral but clearly not directly related to defending this charge.

[16] The information was endorsed both as withdrawn and as dismissed.

[17] It appears from the court file that the Provincial Offences Court Manager wrote to the appellant on November 28th advising him that the matter was dismissed on November 19th and that the solicitor for the defendant requested that costs be awarded to his client. The Court Manager attached a copy of Exhibit #1. The total award of costs was $4,419.51.

[18] The undated notice of appeal was filed in this court on December 18, 2012.

Grounds of Appeal

[19] There are a number of grounds of appeal. They include that his worship erred in dismissing/withdrawing the charge; that his worship should not have indicated that he would prevent the appellant from appearing on the prosecution if he was going to be a witness; that costs should not have been awarded.

Relief Sought on the Appeal

[20] The appellant asks that I set aside the dismissal and overturn the costs award and order a new trial before a new justice.

Jurisdiction to Determine this Appeal

[21] My jurisdiction on this appeal arises under the Act. There is no section that addresses an appeal from a "dismissal" or from an order of costs. Section 121 of the Provincial Offences Act [the Act] R.S.O. 1990 c. P 33 however addresses appeals from an acquittal and I am deciding this appeal under that provision. I am of the opinion that in these circumstances when there was no hearing on the merits of the case the "dismissal" or attempt to withdraw the charge leads to the same outcome as an acquittal.

[22] Section 121 provides in part as follows: Where an appeal is from an acquittal, the court may by order,

(a) dismiss the appeal; or

(b) allow the appeal, set aside the finding and,

(i) order a new trial, [the balance of the subsection is not relevant to this appeal].

Appeal Issues

First Issue: Did the Justice of the Peace Have Jurisdiction to Dismiss the Charge on 19 November 2012?

[23] Part IV of the Act sets out procedural provisions for the conduct of provincial offence act trials. As it concerns this appeal, subsection 53(1) provides as follows: Where the defendant appears for a hearing and the prosecutor, having had due notice, does not appear, the court may dismiss the charge or may adjourn the hearing to another time upon such terms as it considers proper.

[24] Subsection 53(2) provides as follows: Where the prosecutor does not appear at the time and place appointed for the resumption of the adjourned hearing under subsection (1), the court may dismiss the charge.

[25] It is clear on the record that the appellant confirmed on October 22nd that he understood that the next court appearance was on November 19th, a date he confirmed he was available. At the appeal the appellant advised that he has a head injury and he was confused and he entered the wrong date in his computer – leading to his non-attendance. He advised that he did attend court later that week and then discovered the error.

[26] Had the appellant been a defendant and had he missed his trial date he could have applied for a reopening and generally those are granted where there is a reasonable explanation offered.

[27] His worship did have jurisdiction to dismiss the charge. His authority arose under subsection 53(1) of the Act as a matter of discretion. He was not obliged to dismiss the charge but he could. Even if the 19th of November date was considered a resumption of the hearing his worship still had discretion and was not obliged to dismiss the charge.

[28] I might have directed that the matter be stood down and some efforts be made to locate the appellant.

[29] His worship had no authority to "withdraw" the charge. A withdrawal of a charge before a plea is entered is a matter that is solely within the discretion of the prosecutor.

[30] It would be rare to interfere on appeal with the discretion of a justice where he or she dismissed a charge because the prosecutor failed to appear. However, for the reasons that follow and given particularly the unnecessary court initiated adjournments, the proper administration of justice requires me to interfere with that discretion.

Second Issue: What Authority Did His Worship Have to Award Costs?

[31] His worship's authority to award costs – absent a finding that a breach of the Charter of Rights and Freedoms had occurred - and none was argued here – arises potentially under subsections 53(3) and/or 90(2) of the Act. His worship did not state under what authority he was awarding costs.

[32] There is also a general authority to award costs to control the court process under section 146 of the Courts of Justice Act, R.S.O 1990 c. C. 43.

[33] His worship's reasons for ordering the costs were that the appellant had not appeared and that Mr. Pattullo advised that he had attended prepared for trial on two previous occasions.

[34] Subsection 53(3) provides as follows: Where a hearing is adjourned under subsection (1) or a charge is dismissed under subsection (2), the court may make an order under section 60 for the payment of costs.

[35] Subsection 60(2) provides as follows: The court may, in its discretion, order costs towards fees and expenses reasonably incurred by or on behalf of witnesses in amounts not exceeding the maximum fixed by the regulations, to be paid,

(a) to the court or prosecutor by the defendant; or

(b) to the defendant by the person who laid the information or issued the certificate, as the case may be,

but where the proceeding is commenced by means of a certificate, the total of such costs shall not exceed $100.00.

[36] This prosecution was commenced by information. The references to a certificate do not apply to this appeal.

[37] Ontario regulation 945 sets the maximum amount for an award of costs either on conviction [section 1 – not applicable] or under section 2 where: Costs may be awarded under subsection 60(2) of the Act for the items and to a maximum of the amounts following:

1. Fee for each witness for each day necessarily in attendance where trial schedule………………………………………………………………...$6.00.

2. Travel expenses for each witness,

i. Where witness resides in place where trial held………………$2.50.

ii. Where witness does not reside in place where trial held, a kilometre allowance as set out in Ontario Regulation 11 of the Revised Regulations of Ontario, 1990 entitled "Kilometre Allowance".

[38] From the record – both the information and the transcripts - the only date this matter was endorsed as set for trial was October 22nd. The matter did not proceed on that date because his worship wanted to get advice on the appellant's standing. It is arguable whether the 19th of November was intended as a trial date. My best understanding based on the record is that was not intended to be a trial date.

[39] For the reasons more fully discussed below the only authority on these facts under which his worship could have ordered costs was section 53(3). That section speaks specifically to this fact situation. This section clearly limits a costs award to some modest mileage award and $6.00 and that presumes the respondent could be considered a witness at this stage.

[40] The respondent argued that section 90 also provides authority for an award of costs against the appellant. That section provides as follows: (1) The validity of any proceeding is not affected by,

(a) any irregularity or defect in the substance or form of the summons, warrant, offence notice, parking infraction notice, undertaking to appear or recognizance; or

(b) any variance between the charge set out in the summons, warrant, parking infraction notice, offence notice, undertaking to appear or recognizance and the charge set out in the information or certificate.

(2) Where it appears to the court that the defendant has been misled by any irregularity, defect or variance mentioned in subsection (1), the court may adjourn the hearing and may make such order as the court considers appropriate, including an order under section 60 for the payment of costs.

[41] Section 90 does not apply to these circumstances. When the defendant asked that the charge be dismissed on November 19th it was because there was no prosecutor present. This was not a matter of an irregularity or defect in the wording of the information or a challenge to the validity of the charge.

[42] Although not raised by Mr. Scriven I have considered if this award of costs was justified under section 146 of the Courts of Justice Act R.S.O. 1990 c. C 43. His Honour Justice McGarry, in the matter of the City of London v Maywood [2003] O.J. No. 3353 [SCJ] reviewed an award of costs made by a justice of the peace against the municipality in a provincial offences matter. This review was pursuant to an application for certiorari and prohibition – a review and a remedy that exceed my jurisdiction.

[43] Section 146 of the Courts of Justice Act provides as follows: Jurisdiction conferred on a court, a judge or a justice of the peace shall, in the absence of express provision for procedures for its exercise in any Act, regulation or rule, be exercised in any manner consistent with the due administration of justice.

[44] Justice McGarry referred to Madame Justice McLaughlin's comments in R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 at paragraph 87 on the issue of costs: ..[T]he developing jurisprudence uniformly restricts such awards, at a minimum, to circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution.

[45] His Honour also quoted Justice LaForme as he then was in R. v. Foster (2003), 174 C.C.C. (3d) 263 at paragraph 6: Costs in criminal proceedings will only be awarded in rare cases. In general, in order to justify an order for costs there must be something remarkable or unique about the case or something oppressive or improper about the conduct of the prosecution. See also R. v. Goodfellow, [2009] O.J. No. 4915 where an award of costs was made.

[46] Justice Campbell in R. v. Felderhof, [2003] O.J. No. 393 reviewed the factors that should be considered when a party asks for an award of costs against a prosecutor. I recognize that was an application under section 140 of the Act and a matter outside my jurisdiction. However His Honour's comments serve to underscore that "costs in provincial prosecutions … do not ordinarily follow the event". [paragraph 9]

[47] Aside from the fact that the appellant did not appear in court on the 19th of November there were no grounds to order costs in these circumstances.

[48] The issue of whether the appellant could prosecute this matter and also be a witness was raised by his worship on the 22nd of October. The parties were not raising it. His worship generated the adjournment on the 22nd of October. That was the date set for trial.

[49] When the matter returned on the 19th of November the appellant did not appear. His worship did have discretion at that time – to either adjourn the matter or to dismiss the charge. His reason for dismissing/withdrawing the charge was because the appellant was not present.

[50] Mr. Pattullo advised his worship that he attended court prepared for trial on two previous occasions. His comments in that regard appear to have been misguided or he misspoke as the only date that was clearly set for trial was October 22nd. His earlier attendances were to set a date – not for trial.

[51] The first date – July 23rd was a first appearance and not a trial date. While the parties were content to set a mutually satisfactory trial date the presiding justice of the peace refused to do that. That required a new court date. That delay was caused by the court.

[52] On August 27th Mr. Pattullo was clear that he and the appellant wanted to set a trial date. It was set on consent for the 22nd of October with that justice of the peace and the respondent clearly aware that the appellant was going to prosecute and testify at the trial.

[53] On the 22nd of October – a date that it appears both the appellant and the respondent were prepared to proceed – his worship would not hear the matter until he satisfied himself on whether the appellant could be both a witness and a prosecutor.

[54] On the 19th of November the appellant did not appear. His failure to appear on that date was his own fault. I accept his explanation for his honest mistake.

[55] It is however unclear from the transcript of the 22nd of October if his worship intended the 19th of November to be the new trial date. From the record and the endorsement on the information I cannot be sure that date was intended as a trial date.

[56] Given his worship's ultimate decision that the appellant could not be a witness as well as prosecute the charge –one could reasonably infer that had the appellant appeared on that date he would have been given his choice – either to be a witness and not prosecute or vice versa. It would also be reasonable to infer that a further adjournment may have been required.

[57] His worship ordered costs after saying he was "withdrawing" the charge and noting that the appellant was not present and referring to the defence being "ready to go three times for trial".

[58] While it would be unusual for a prosecutor who routinely appears in the court not to appear on a date set for a hearing or trial it would be equally unusual to order costs against him or her without first hearing from the prosecutor. There could be an innocent explanation – such as "I got the date mixed up" - the explanation offered in this case and which I accept.

[59] The appellant did not engage in conduct that warranted an order of costs being made against him.

[60] Even assuming his worship had authority to order costs on a scale wider than provided for in subsection 53(3) of the Act he should not have made an order of costs against the appellant without first directing that the appellant be given notice of that application and an opportunity to appear before the court. The costs order sought was substantial. His worship did not have the full background. Procedural fairness required that such notice be given.

Third Issue: Can an Informant Alleging a Violation of a Municipal Bylaw Appear as Both Prosecutor and a Witness in the Trial?

[61] At the hearing of this appeal the appellant advised that he knew of a court decision that supported his argument that he could prosecute and also testify but could not locate it. After a brief recess and still not able to locate the decision, and I note that Mr. Scriven did try to assist the appellant, I advised that if the case was located and forwarded to my clerk and copied to Mr. Scriven I would consider it. The appellant forwarded the decision in R. v. Cooper [2005] BCCA 256 (C.A.).

[62] The appellant and Mr. Scriven made further written submissions on that decision.

[63] The Cooper decision is particular to the provisions of the British Columbia legislation including its Offences Act. While the court found that the appellant's rights were violated the provision was saved under section 1 of the Charter as a matter of efficiency [my word].

[64] Given the reasons in R. v. Wagner [1999] O.J. No 5697 and the practice in Ontario to have independent prosecutors – usually lawyers for the municipalities – prosecute certificates of offence or provincial crown attorneys to prosecute informations - I do not imagine the issue of a police officer as informant and prosecutor is a live issue in Ontario. Municipalities often retain their own prosecutors to enforce bylaws.

[65] In this case, on October 22nd, the prosecutor for the South Bruce Peninsula who was present on an unrelated matter confirmed that he was not prepared to prosecute private prosecutions.

[66] Justice Sheard of the Ontario District Court reviewed a number of prosecutions under provincial statutes, including the Trespass to Property Act R.S.O. 1980 c. 511. In these cases the prosecutors were police officers. [R. v. Kennedy [1989] O.J. No. 2717]. He referred to the definition of a prosecutor in the Provincial Offences Act. That definition has not changed.

[67] Section 1(i)(h) defines a prosecutor as: "prosecutor" means the Attorney General or, where the Attorney General does not intervene, means the person who issues a certificate or lays an information and includes counsel or agent acting on behalf of either of them.

[68] Justice Sheard concluded that in a provincial prosecution under the Act the informant can also be the prosecutor.

[69] The issue however in this appeal is whether the appellant can be the informant, prosecutor and a witness. The appellant was candid when he advised that he held a biased view of this prosecution and that he holds an "obvious interest" in its outcome. He advised that he sought out some guidance on whether he could be a witness and prosecute and he understood that he could.

[70] The appellant also offered at the hearing of this appeal to have Mr. Gammie – a person who spoke up on the 22nd of October – give his evidence by affidavit and prosecute. That would allow the appellant to testify as a witness.

[71] Affidavit evidence is generally not accepted as a substitute for oral testimony at a trial. Even if permitted, Mr. Gammie would be subject to cross examination and he would become a witness. His role of prosecutor would then not be unlike that of the appellant.

[72] While at the time I heard the argument on this appeal I was inclined to the view that the appellant should not be both witness and prosecutor after more consideration I accept his argument. There is no reason that the appellant cannot prosecute this charge and also be a witness. It is a private prosecution and the provincial crown attorney has decided not to intervene. The appellant has the right to have this matter heard without being required to hire a lawyer.

Summary

[73] His worship did have jurisdiction to dismiss the charge when the appellant failed to appear or have an agent appear on his behalf on November 19th. It would be rare to interfere with this exercise of discretion. However, given all of the issues raised in this appeal which include the following:

(a) I accept that the appellant genuinely was mistaken about the November 19th date;

(b) The initial refusal by the first justice of the peace to set the trial date when the parties were both present and consenting to a trial date being set and his direction that the appellant start the process again;

(c) The decision by the justice on October 22nd to adjourn the matter without hearing submissions on an issue he raised;

(d) The justice's apparent confusion over what his authority was – either to dismiss and or withdraw the charge;

(e) The justice's decision to order costs without notice to the appellant; and

(f) The lack of grounds to order costs.

the proper administration of justice requires that I set aside the dismissal and order a new trial before a different justice.

[74] On these facts the only authority to order costs arose under subsection 53(3). That subsection refers the court back to section 60. On these facts costs of no more than $6.00 and mileage could have been ordered even assuming the defendant could be considered a witness.

[75] Further, even if his worship was inclined to make an order for costs under the Courts of Justice Act, such an order should not have been made without notice to the appellant. It was unfair to consider such a request without hearing from the appellant. Further the facts of this case did not warrant any order for costs.

[76] In conclusion the appeal is granted. A new trial is ordered to be held before a different justice of the peace. The order for costs is set aside.

[77] This matter is to return to the Provincial Offences Court to be placed on the docket for Monday the 27th day of May 2013 at 10 am. The parties and or their agents should be present. On that date a new trial date should be set.

[78] The disclosure brief that is in the court file should be returned to the appellant. He should obtain a certified copy of the Dynamic Beach Park Bylaw number 52-2011 from the municipality and file it with the Provincial Offences Court.

Released: May 1, 2013

Signed: "Justice J.A. Morneau"