ONTARIO COURT OF JUSTICE
DATE: 2025-01-02
BETWEEN:
Aldo Tumino
Appellant
— AND —
Toronto (City)
Respondent
Judgment on Appeal
Counsel for the Appellant: C. deSereville
Counsel for the Respondent: C. Bendick
Felix J.:
I. Introduction
A. Introduction
[1] On August 9th, 2021, the appellant was charged with four counts of breaching the City of Toronto’s Zoning By-law. The appellant was found guilty after trial. The appellant filed an appeal.
[2] The written materials are voluminous, meticulously prepared, and thorough. The written materials were augmented by supplementary oral submissions and a joint written submission provided on December 16th, 2024.
[3] The issues raised on appeal do not involve an evaluation of the merits of the by-law infractions. The appeal is focused on procedure and the fair trial interests of the appellant. The appellant outlines several relevant issues that are relevant to the disposition of the appeal. The central question concerns a s.11(b) Charter application.
[4] The appellant submits that the learned trial justice of the peace erred in law by:
- summarily dismissing the application;
- failing to allow the appellant to provide submissions prior to summary dismissal of the application; and
- concluding that the COVID-19 pandemic was an “exceptional circumstance” justifying the delay in the case.
[5] In a supplementary appeal filing the appellant also raises an ineffective assistance of counsel issue sourced in the failure to give notice and properly file a s.11(b) application.
[6] The parties have jointly requested a bifurcated approach to the appeal. The parties request that the Court first address the threshold issue of submitted judicial error as it concerns the s.11(b) application. The parties jointly request that the supplementary appeal issue of ineffective assistance of counsel be held in abeyance pending a decision on the threshold issue of judicial error. I agree to this bifurcated approach.
B. Section 11(b) Application
[7] The appellant was represented by legal counsel at the trial. After introductions were placed on the record, the trial justice asked the prosecution if they were ready to proceed with the trial. The prosecution indicated in the affirmative. The trial justice asked the appellant’s counsel if he was ready to proceed. He indicated in the affirmative. The appellant was arraigned.
[8] After arraignment the prosecutor raised the issue of pretrial motions, indicated an understanding that they were not proceeding, and sought leave of the court to release an anticipated witness on the pretrial motions.
[9] The court asked counsel for the appellant if there were any pretrial motions. Counsel referenced a s.11(b) motion that he did not file but asked permission to address. The Court asked the prosecutor whether there would be any objection to the motion being argued. The prosecutor explained that she understood that the pretrial motion concerned a challenge to the summons. The prosecutor suggested that if that motion was not being addressed, the prosecution be permitted to release the witness. The prosecutor indicated that she was prepared to discuss the s.11(b) motion thereafter. The Clerk of the Court confirmed on the record that there were no motions before the court. The parties then went on to provide submissions on the summons issue.
[10] The prosecution objected to the s.11(b) application being heard. The prosecutor submitted that while there had been verbal notice, no formal notice was provided. The prosecutor then went on to provide submissions on the summons issue. Counsel for the appellant had an opportunity to provide submissions on the summons issue. In providing those submissions he also indicated that acquiring jurisdiction when he was bringing an 11(b) application impacted the fair trial rights of his client. The trial justice admonished counsel to address one issue at a time. The court then ruled on the summons / jurisdictional issue.
[11] After dealing with the summons jurisdiction issue the trial justice of the peace told trial counsel that the s.11(b) motion was not before the court. The trial court then went on to find that neither motion was properly filed. As it concerned the summons issue, the appellant had attorned.
[12] The record reveals that counsel at trial was retained on either January 6th or 8th for a trial commencing January 22, 2024. He did not indicate to the Court that he had been instructed to file the s.11(b) application. He did not indicate that he wished to file the application with leave to abridge time for service. He did not apply for an adjournment.
[13] The threshold issue is narrow and clear. No s.11(b) Charter application was served and filed on the Court or the respondent. No formal notice was given. No cases filed. No factums prepared. As such, whatever the nuance suggested in the appellant’s materials, the narrow simple fact is that no application was filed.
[14] That the trial justice of the peace discussed the s.11(b) application with the parties did not breathe life into an application or translate into an adjudication of the application. That trial counsel orally invited the Court to hear the application did not mean the application was “before the court”.
[15] The trial justice of the peace did not err by discussing the issue with the parties. That a discussion occurred did not mean the trial justice of the peace permitted the application to be heard. The s.11(b) application was not “before the court”. Consequently, there was no live application for the learned trial justice to summarily dismiss.
[16] The appellant is directed to file the ineffective assistance of counsel appeal materials by Friday January 31, 2025. Counsel for the appellant is to take note of the Ontario Court of Appeal procedural guidance as it pertains to the ineffective assistance of counsel issues addressed in the Court of Appeal.
[17] The respondent is directed to file a response by February 28th, 2025.
[18] The parties are directed to communicate with each other to ascertain a time estimate for this appeal. Thereafter counsel are to contact the appeal clerk for the listing of this appeal.
[19] Given the bifurcated approach to this appeal and the fact that the parties will be filing new materials specifically focused on the ineffective assistance of counsel issue, it is not necessary that I be seized with the second part of this appeal. The appeal clerk is to check with the local administrative judge before assigning the appeal.
Released: January 2, 2025
Signed: “Justice M.S.V. Felix”