Court File and Parties
Ontario Court of Justice
Date: 2014-08-22
Court File No.: Regional Municipality of York 4960-11-4025
In the Matter of: An appeal under section 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended
Between:
Her Majesty the Queen Ex rel. The Regional Municipality of York Respondent
— And —
Richard Jukes Appellant
Before: Justice Joseph F. Kenkel
Appeal Heard on: 22 August, 2014
Reasons Delivered: 22 August, 2014
Counsel
Ms. Volga Pankou — agent for the Respondent Municipality
Richard Jukes — appeared on his own behalf
Background
On appeal from a conviction by Justice of the Peace K. Walker on April 22, 2013.
KENKEL J.:
[1] Introduction
[1] The appellant was convicted at trial of Failing to Comply with a Property Standards Order issued pursuant to s.15.2(2) of the Building Code Act. The court suspended the passing of sentence and placed the appellant on probation for a period of one year.
[2] Mr. Jukes now appeals as against conviction only. The Notice of Appeal sets out only one ground of appeal - trial within a reasonable time – but on the hearing of the appeal four grounds were advanced:
i. Trial within a reasonable time – Charter s.11(b) ii. Disclosure and Trial Fairness – Charter s.7 iii. Cruel and Unusual Punishment – Charter s.12 iv. Equality under the Law – Charter s.15
[3] For the reasons below I find that the appeal must be dismissed.
Charter Issues Not Raised at Trial
[4] In criminal matters appellate courts do not permit new arguments to be raised upon appeal. The other party did not have an opportunity to respond with evidence at trial and the record will often not be sufficient to make findings of fact necessary to decide the issue. R. v. Mahmood 2011 ONCA 693, [2011] OJ No.4943 (CA) at para.62
[5] An appellant is not permitted to raise new Charter arguments for the first time on appeal unless there has been a dramatic shift in the law such that the argument not available at trial was now available by the time of the appeal. See: R. v. Sweeney, [2000] OJ No.3534 (CA) at para.31
[6] In my view, the public interest in finality of litigation in criminal matters applies with stronger reason to provincial offence matters given the higher number of cases, the simplified nature of the proceedings and the reduced range of penalty as compared to criminal matters. However, given that the accused is unrepresented and has gone to great expense and effort in pursuit of this matter I will exercise my discretion and consider the Charter arguments advanced. The main Charter argument being raised for the first time concerns s.11(b) and the transcripts provide an evidentiary basis for consideration of that issue. Although there was no formal Charter application at trial, the issues of disclosure and the equality in prosecution were advanced and considered by the court.
Trial Within a Reasonable Time
[7] The history of the proceedings is as follows:
Sep 8 – Oct 13/11 — Intake
Oct 13/11 — First Appearance The Crown offered to set a trial date. The accused asked for an adjournment of 3 months. The court found that was too long and adjourned the matter to December 15, 2011
Dec 15/11 — Second Appearance The Crown offered to set a trial date. The accused needed time to speak to counsel and a February 16th trial date was set.
Feb 16/12 — 1st Trial Date The accused pleaded not guilty then asked for an adjournment to pursue further disclosure regarding the general enforcement of bylaws in the municipality. The prosecution submitted the further disclosure was not relevant. The court struck the plea and further dates in March, April and May were offered. The accused chose the furthest date May 17, 2012. "Yeah that's better, May. The other dates I'm booked". The matter was set for trial May 17th 2012.
May 17/12 — 2nd Trial Date The accused requested disclosure related to a past proceeding his now deceased father had with Georgina Township that took place in 2005, some 7 years earlier. The prosecution submitted that the requested disclosure was irrelevant. The court adjourned the trial and ordered that the prosecution obtain and disclose the order referred to by the defendant. The prosecution confirmed with the municipality that the requested order could be made available quickly. The prosecution wanted to set a trial date but the defendant had again mentioned speaking with a lawyer so the matter was adjourned to provide the further disclosure requested and allow the defendant to obtain counsel's dates for trial.
June 14/12 — 5th Appearance - Set Date The defendant requested further disclosure in relation to his father's matter in 2005 and caselaw. The prosecution submitted that they had provided the requested disclosure relating to his father's matter even though it wasn't relevant. The prosecutor declined to provide legal research or caselaw and noted that she wasn't aware of any cases dealing with this bylaw. Both parties agreed to a trial date of September 13, 2012. Mr Jukes said, "that will be fine" when he agreed to that date.
Sept 13/12 — 3rd Trial Date Accused pleaded not guilty. Evidence was heard. The trial was interrupted when the accused told the court he didn't receive the bylaw officer's notes. The prosecution told the court they had provided everything in duplicate and triplicate including the notes at issue and including documents relating to an unrelated 2005 matter involving the defendant's father. The court struck the proceedings, as although the officer's notes had been disclosed the accused didn't have them in his possession at the time of trial. The court adjourned the trial to November 15, 2012 peremptory on the defendant to proceed.
Nov 15/12 — 4th Trial Date The defendant told the court he still didn't have all the information he wanted but he was "ready to proceed anyway". The further information he wanted was research of caselaw to see if there were any cases that supported his position. The trial commenced and evidence was heard. The accused told the court he did not remember receiving a document where evidence showed it was served upon him by mail. The prosecution also had a complete photocopy of all items provided to Mr. Jukes by way of disclosure and this document had already been disclosed. Time ran out and a further date was selected. The defendant was asked by the court to organize his documents so that time wouldn't be wasted with objections relating to documents in his possession that he was having a hard time finding. The prosecution agreed to give Mr. Jukes further copies of documents he lost. The next available trial date for the expanded time required for this particular trial was March 11th, 2013.
Mar 11/13 — 8th Appearance – Continued Trial The evidence was completed and submissions heard and the matter was put to April 22, 2013 for judgment.
Apr 22/13 — Judgment
[8] I agree with the appellant that the overall time to completion of trial was extraordinary for such a simple bylaw case and requires review.
[9] However, contrary to the appellant's submission that he was trying to set a trial date from the first appearance onward but was continually frustrated by the Crown's request for adjournments, the transcript of the first appearance shows that the opposite was true. He requested an adjournment and a lengthy one which was refused. It's not improper to request an adjournment early in the proceedings to prepare, but the submission that the appellant tried to set a trial date from the first appearance onward simply isn't true. Nor is it true that he opposed delay throughout.
[10] All of the remaining trial adjournments and other delays were at the request of the defendant. Much of the delay centred around his requests for plainly irrelevant material relating to other proceedings involving other parties in 2005. Institutional delay in this case is two months to the first trial date. The accused requested an adjournment and then requested the furthest date be set for the second trial. The transcripts show that the various Justices of the Peace showed extraordinary patience with the unrepresented defendant and generously allowed multiple adjournments and 4 trial dates to be set in response to the many disclosure requests by the accused of little or no apparent relevance to the case and other accommodations. The trial proceedings show that the prosecution had disclosed the information essential to the trial at first instance and the further delays at the request of the accused cannot fairly be attributed to Crown or institutional delay.
[11] The simple charge was not completed on the first trial date. The transcript of proceedings shows numerous reasons why the initial trial time proved inadequate and further time was scheduled.
[12] Contrary to the submission on appeal, the accused did not allege a breach of his s.11(b) rights at trial either in formal or informal terms. There was no allegation that the trial would be unfair given the delay.
[13] I can find no evidence of a s.11(b) breach.
Disclosure – Charter s.7
[14] As noted above, the Justices of the Peace throughout were very generous in ordering disclosure even where it appeared plainly irrelevant, in ordering further copies where original disclosure had been lost, and in granting trial and other adjournments to permit the accused to have further time to prepare.
[15] Even on appeal, one of the central documents he was able to cite as having been tendered on surprise at trial was actually part of initial disclosure and disclosed again on his objection. The property roll in question was not particularly relevant in any event as the defendant was charged as being an occupant (which he admitted) and not as an owner.
[16] I can find no evidence that relevant information was not disclosed or that the accused was not given time to prepare for documents he received. The Justices of the Peace throughout dealt with the many disclosure requests and adjournment requests in a generous and appropriate manner. This ground of appeal must fail.
Cruel and Unusual Punishment – Charter s.12
[17] This is a conviction appeal and so s.12 does not apply. I would note though that a suspended sentence in relation to a provincial offence effectively applies no actual punishment, much less anything cruel or unusual.
Equality Under the Law – Charter s.15
[18] The appellant argued at trial that other neighbours in his area were also violating bylaws and therefore that the fact that he was charged and they weren't violates his s.15 Charter right to equality.
[19] That's not the law. It's not the case that an individual cannot be charged with an offence unless all others committing similar acts are similarly charged. As the Court of Appeal noted in R. v. Miles of Music Ltd., [1989] OJ No.391 (CA) at para.23, it is not a defence to a speeding charge to point out that others were also speeding on that same highway.
[20] Even where a municipality may be aware of other bylaw violations and exercises some discretion in prosecution that mere fact does not engage s.15. See: Scott v. North Perth [2009] OJ NO.50 (SCJ) at para.13.
[21] In this case the appellant submits that there's evidence of harassment towards him by the bylaw officer over an offer to buy a vehicle that was not accepted. He attributes the actions of others and many other things happening on his property to this one brief conversation and submits that the bylaw charge against him was false.
[22] The learned Justice of the Peace heard the evidence of both parties at trial and patiently tried to determine the various defences being put forth by the appellant. She considered the equality submission and she noted that the photographic evidence and the testimony at trial provided evidence of a bylaw breach that was not corrected as required. The court did not find that the charge was laid for an improper purpose. The defendant's central defence – that he exercised reasonable diligence in attempting to comply with the order was rejected. Given the photographs, documents and testimony at trial that finding was open to the court and supported by the evidence.
Conclusion
[23] The appellant has failed to show that the finding of guilt was unreasonable or was not supported by the evidence. The appellant has not shown any error of law. There was no merit to the Charter arguments including those raised for the first time on appeal.
[24] The appeal is dismissed.
Delivered: 22 August, 2014
Justice Joseph F. Kenkel