Court Information

Certificate Numbers: 4460-2429751B, 4460-2429476B

Ontario Court of Justice (West Region)

Proceedings Under:

• Trespass to Property Act, R.S.O. 1990, c. T.21, as amended
• Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Parties

Between:

Her Majesty the Queen ex rel. Regional Municipality of Waterloo Prosecutor/Moving Party

-and-

Mark Corbiere and Joey Hartman Defendants/Respondents

-and-

Her Majesty the Queen in Right of Ontario Intervenor/Respondent

Counsel: Mr. D. Dyer, for the moving party

Reasons for Judgment

[1] Application for Judicial Assignment

[1] This was an application pursuant to section 76 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and section 15(4) of the Justices of the Peace Act, R.S.O. 1990, c. J.4 for an Order by the Regional Senior Justice directing that the matter before the Court be tried by a judge of the Ontario Court of Justice rather than a justice of the peace.

Background

[2] The defendants were charged with engaging in a prohibited activity on premises contrary to section 2(1)(a)(ii) of the Trespass to Property Act, R.S.O. 1990, c. T.21. These charges arose from an allegation that on August 9th, 2013, the defendants were engaged in a protest on the front steps of the main entrance of the regional courthouse located at 85 Frederick Street in the City of Kitchener. They were cautioned by the police that the act of protesting and handing out literature to persons entering the courthouse was a prohibited activity. They were asked to move to the adjacent public sidewalk. When they continued to hand out flyers in spite of the caution, the defendants were issued a provincial offence notice as indicated.

[3] On the 7th of August, 2014, the defendants served a Notice of Application and Constitutional Issue upon the Region of Waterloo, the Public Prosecution Service of Canada, and the Ministry of the Attorney General as representative of Her Majesty the Queen in Right of Ontario. The notice alleged a breach of section 2 and 9 of the Canadian Charter of Rights and Freedoms, and sought relief under Section 24 of the Charter.

[4] On the 10th of September, 2014, counsel for the Attorney General advised that Her Majesty the Queen in Right of Ontario was intervening with respect to the issues raised under the Charter application.

[5] This application was made on December 15th, 2014, and was heard on January 8th, 2015.

[6] The application was made with the consent of all parties, including the prosecutor, the defendants, and the intervenor.

The Issue

[7] Should the matter be tried by a judge of the Ontario Court of Justice?

The Law

[8] There were two cases cited in submissions by counsel that set out the law with respect to section 15(4) of the Justices of the Peace Act.

[9] Ontario (Minister of Finance) v. Computer Store – St. Catharines Inc., [2006] O.J. No. 5805, was a decision of Regional Senior Justice T. A. Culver. In that case he was asked to assign the matter to be heard by a judge of the Court by reason of the difficulty in finding available dates for a trial before a justice of the peace by reason of a lack of judicial resources, which he found to have occurred by reason of the failure of the Ontario government to appoint adequate resources.

[10] At paragraph 2, Justice Culver noted that his authority as Regional Senior Justice was engaged to exercise his discretion for the purpose of assigning the matter to a judge of the Court.

[11] Justice Culver then described the usual assignments of judges as follows at paragraph 4:

It is instructive to note that the judges of the Ontario Court of Justice are generally assigned to hear criminal matters, and occasionally, regulatory trials under certain Acts in Ontario where the prosecution may elect trial before a provincial judge, and certain other regulatory matters where a provincial judge has primary jurisdiction (Municipal Elections Act, The Securities Act, et cetera). The judges of the court routinely hear appeals from POA matters heard by justices of the peace.

[12] Of significance, he looked to the legislation for guidance in the exercise of his discretion, but found no such guidance. At paragraph 7 he stated:

There is nothing in section 76 of the Courts of Justice Act that provides me with guidance with regard to why a matter that Parliament has decided is within the jurisdiction of either a justice of the peace or judge, should be assigned to a judge, as opposed to a justice of the peace when the usual forum is a justice of the peace court. I find that in cases where both judicial officers have jurisdiction to hear the matter, that it is only appropriate to assign a matter to a judge, when there are issues of significant precedent value, where a constitutional challenge regarding the validity of legislation is being put forward, or where a broader public interest is engaged.

[13] He concluded in the circumstances that there was no sufficient reason to exercise his discretion.

[14] R. v. Smith, [2012] O.J. No. 2395, was a decision of Regional Senior Justice F. M. Finnestad, as she then was. She undertook a thorough review of the applicable law regarding her authority under Section 15(4) of the Justices of the Peace Act.

[15] Smith was a case of a charge of careless driving under the Highway Traffic Act which resulted in a fatality. The Crown sought to have the matter heard by a judge, as opposed to a justice of the peace, on the basis that the matter involved a fatality which should therefore be heard by a judge, and which had been the Crown practice for years.

[16] Justice Finnestad noted the jurisdiction of both judges and justices of the peace to preside over trials of provincial offences in the Ontario Court of Justice. She then noted the practice of assigning cases at paragraph 14 as follows:

It is a long and established practice in this province generally, and in this Region specifically, that trials of provincial offences are assigned to justices of the peace in the ordinary course. Some exceptions are to be found. Section 108 of the Provincial Offences Act provides that only a judge can preside at the trial of a young person charged with breach of probation. A small number of provincial statutes provide that the Crown can require trial by a provincial court judge upon filing notice with the clerk. In all other cases, an application can be made by any party before the regional senior justice under s. 15(4) of the Justices of the Peace Act.

[17] The practice of assignment of provincial offence cases is the same in the west region as stated by Justice Finnestad.

[18] After reviewing decisions of the Court of Appeal, she concluded as follows at paragraph 24:

The case law would appear to reinforce the view that the issue of before which judicial officers such cases are to be heard is in the discretion of the regional senior justice, and that there are no rules with respect to the exercise of that discretion. The issue is not one of competence and there is no requirement that a trial be conducted before the judicial officer most senior in the hierarchy of those having jurisdiction.

[19] Justice Finnestad then concluded at paragraph 25 that she agreed with the factors enunciated by Justice Culver in the Ontario v. Computer Store-St. Catharines in exercising her discretion, and added that she would also include those cases where complex legal arguments are to be litigated.

[20] Ultimately the application before her was dismissed and the trial was directed to be heard by a justice of the peace.

Analysis

[21] It was clear that the authority granted to me as Regional Senior Justice under Section 15(4) was discretionary.

[22] It was also clear that the legislation contained no guidance as to the factors to be considered by me in exercising my discretion.

[23] I was guided however by the decisions of Justice Culver and Justice Finnestad in the factors I should consider in making a decision, which might be summarized as follows. A matter is appropriate to be assigned to a judge where there are issues of significant precedent value, where a constitutional challenge regarding the validity of the legislation is being put forward, where a broader public interest is engaged, or where there are complex legal arguments to be litigated.

[24] Firstly there was nothing particularly complex about the constellation of facts giving rise to the charges in this case. There was no evidence before me that evidence that may be called, including evidence by the intervenor, will necessarily be complex.

[25] Secondly, the mere fact that a Charter infringement was raised on application does not give rise to the exercise of discretion in favour of the applicant. Charter applications are frequently brought in provincial offence matters, and justices of the peace have the education, training, and the ability to make decisions with regard to allegations of infringement of rights under the Charter. (See section 95(3) and Section 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43.)

[26] The sole basis for granting the application rested with the consideration of the broader public interest in the matter, and the precedent that will be set in its determination. In that respect I considered the following:

a. The application raised issues of importance as to the extent of the right to free expression and freedom of association in public protests, particularly in a place such as a courthouse;

b. The extent to which the rights under the Charter might reasonably be curtailed or excepted under section 1 of the Charter;

c. The impact upon the administration of justice having regard to the right of citizens to gain access to courthouses, and their safety in doing so, as well as the issues of safety and security within courthouses;

d. The fact that the provincial government has intervened;

e. A decision of a justice of the peace on the Charter application will not have precedent authority and will only bind the parties to the decision;

f. The parties assert that any decision of the trial court will be appealed having regard to the broad impact of any decision, and the Charter rights involved; and

g. The current trial schedule of judges will permit a timely trial of the matter.

[27] In all of the circumstances, the trial before a justice of the peace will not be efficient or particularly effective. At best, having regard to the issues to be determined, the broader public importance of such a decision, and likelihood of an appeal, the justice of the peace will be engaged primarily in hearing evidence, and creating an evidentiary record that would be of some use to a judge of the Ontario Court of Justice on an appeal. It would not significantly impact upon the time a judge would have to be scheduled to hear the legal arguments on an appeal.

[28] This was an extremely unusual circumstance when in balancing the nature of the case and the best use of judicial resources of the Court it was appropriate to have the matter heard by a judge of the Court. The application will be granted, and the trial of this matter shall be heard by a judge of the Ontario Court of Justice.

Dated at London, Ontario this 2nd day of February, 2015.

Justice Stephen J. Fuerth

Justice Stephen J. Fuerth Regional Senior Justice, West Region Ontario Court of Justice