





CITATION:
R. v. Vellone, 2011 ONCA 785



DATE: 20111214



DOCKET: C50397



COURT OF APPEAL FOR ONTARIO



MacPherson, Simmons and Blair JJ.A.



BETWEEN



Her Majesty the Queen Ex Rel. The Regional Municipality
          of York



Appellant



and



Angelo Vellone



Respondent



Hans J. Saamen, for the appellant



Angelo Vellone, in person



Jordan Glick,
amicus curiae



David Lepofsky, for the intervener, the Attorney General for Ontario



Heard: November 21, 2011



On appeal from the judgment of Justice Howard I. Chisvin of
          the Ontario Court of Justice dated February 20, 2009, with reasons reported
          at 2009 ONCJ 150, allowing an appeal from the conviction of the respondent by
          Justice of the Peace A. Malik of the Ontario Court of Justice dated August
          25, 2008, with reasons reported at 2008 ONCJ 765, for speeding contrary to s.
          128 of the
Highway Traffic Act
.



MacPherson J.A.:



A.
INTRODUCTION

[1]

The appellant, the Regional Municipality of York (York Region) appeals
    from the decision of Justice H.I Chisvin of the Ontario Court of Justice dated
    February 20, 2009.  In that decision, Chisvin J. allowed an appeal from Justice
    of the Peace A. Maliks August 25, 2008 conviction of the respondent Angelo
    Vellone for speeding.

[2]

The appeal raises two issues: (1) did Mr. Vellone comply with the notice
    requirements of s. 109 of the
Courts of Justice Act
, R.S.O. 1990, c.C-43
    (
CJA
), when he advanced his s. 11(b)
Charter
argument before
    the justice of the peace; and (2) was there a violation of Mr. Vellones s.
    11(b)
Charter
right to be tried within a reasonable time?

[3]

At the appeal hearing, this court heard oral submissions on the first
    issue from the appellant, the respondent in person, the
amicus curiae
appointed by the court, and the intervener Attorney General for Ontario.  At
    the conclusion of these submissions, the court indicated that it would allow
    the appeal on the first issue without addressing the second issue.  The court
    would order a new trial on the speeding charge, but would record the
    undertaking of counsel for York Region to withdraw the charge because of the
    passage of time and the volume of proceedings involving Mr. Vellones
    attendance, thus ending the matter.

[4]

What follows are the reasons for this decision and disposition.

B.
FACTS

(1)
The parties and events


[5]

On June 7, 2007, Mr. Vellone was pulled over for speeding on Highway 400
    northbound.  The police officer measured Mr. Vellones speed at 120 kilometres
    per hour in a posted zone of 100 km/h.  Mr. Vellone was charged with speeding
    contrary to s. 128 of the
Highway Traffic Act
, R.S.O. 1990, c. H-8 (
HTA
).

[6]

On June 20, 2007, Mr. Vellone filed a request for a trial.  On September
    24, 2007, a notice of trial was sent to him by mail providing a trial date of
    April 2, 2008.

[7]

On April 2, 2008, Justice of the Peace Griffith decided to adjourn the
    trial because the temperature in the courtroom was 83.7 degrees.  Mr. Vellone
    did not request this adjournment.  He was asked if he had any difficulty with
    the trial being adjourned because of the temperature.  He indicated that he
    wanted to get his trial over and done with, but would do whatever the court
    wanted.  Crown counsel suggested a return date of August 25, 2008 at 1:30 p.m. 
    Mr. Vellone asked if the trial could take place in the morning or at night
    court and was told that these were not possible.  The trial was set for August
    25, 2008.

(2)
The trial

[8]

On August 25, 2008, Mr. Vellone appeared before Justice of the Peace A.
    Malik. Mr. Vellone submitted that the matter should be dismissed for delay. 
    Crown counsel disagreed and the trial judge made an immediate ruling.  The
    entire exchange on this issue was as follows:

THE COURT:            Do you want to get some legal
     legal advice or do you want to proceed today?

MR. VELLONE:       If I may, I  under the
Charter
    of Rights
, I  I was under the belief that I  this thing took too long to
    come to trial and I was asking the Courts to be dismissed.

THE COURT:            Sir, did you talk to the
    Prosecutor?

MR. AGOSTINHO:  Your worship, Id indicate first
    and foremost that to do a motion of that nature, it is not proper before you.

THE COURT:            Yes.

MR. AGOSTINHO:  Regulation 200 of the
Courts of
    Justice Act
clearly state that if youre going to make any type of a motion
    such as that, that it must be made it must be served on the Attorney General of
    Ontario, the Attorney General of Canada and the Prosecutors Office fifteen
    days prior to the commencement of trial.  And in this particular matter where
    an adjournment had been made previously before theres a case of
Regina v.
    Franklin
that also indicates and clearly states that transcripts have to be
    submitted to the Court to indicate as to why it was adjourned the last time. 
    As a result I respectfully submit that a
viva voce
application such as
    Mr. Vellone is making is not acceptable and it is not proper before you at this
    time.

THE COURT:            Yes  yes sir, your verbal
    motion for this
Charter
right is not acceptable because you should have
    done it fifteen days before in writing to the Ministry of the Attorney General
    with a copy to the Prosecutor and that motion is not properly before me, before
    this Court therefore I cannot accept your submission.

[9]

The trial continued.  The police officer who issued the ticket testified
    and was cross-examined by Mr. Vellone.  Mr. Vellone testified.  The trial judge
    convicted Mr. Vellone of speeding and imposed the statutory fine of $90 plus $5
    for costs.

[10]

Mr. Vellone appealed the conviction.

(2)
The appeal

[11]

On appeal to the provincial court, the Crown conceded that the trial
    Crown and trial judge were wrong to rely on Regulation 200 of the
CJA
,
    R.R.O. 1990, Reg. 200.

[12]

Nevertheless, the Crown contended that there was a notice problem with
    Mr. Vellones position before the trial judge. The Crown argued that Mr.
    Vellone had failed to comply with s. 109 of the
CJA
, which provides:

109(1) Notice of a constitutional question shall be
    served on             the Attorney General of Canada and the Attorney    General
    of Ontario in the following circumstances:

. . .

2.         A remedy is claimed under s. 24(1) of
    the
Canadian    Charter of Rights and Freedoms
in relation to an act or       omission
    of the Government of Canada or the            Government of Ontario.

(2)       If a party fails to give notice in
    accordance with this    section... the remedy shall not be granted....

[13]

The appeal judge rejected the Crowns notice argument.  The core of his
    reasoning is in these passages:

The Provincial Offences Act
, s. 161.1 and
    following provides for agreements between municipalities and the Attorney
    General to be put in place to allow the municipality the function of
    prosecuting offences, in this case, the offence of speeding.

Pursuant to these agreements the municipalities are
    required to provide not only the prosecutors but the court administrators and
    the court facilities.  The only obligation the Attorney General has is
    that it is his responsibility to appoint Justices of the Peace to hear such
    trials.  Beyond that, the prosecutions of these matters essentially would
    be a municipal concern.  The Attorney General of course does maintain an
    overriding right to intervene and supervise the administration of the
    agreements.  Once the municipality has taken on the prosecution of the
    matters, the Attorney General is no longer a party to the prosecution.

The Provincial Offences Act
goes so far as
    to specifically note in s. 169 that a municipality acting under such agreement
    does not act as an agent for the Attorney General of Ontario.

Thus, by agreement, the Attorney General has
    delegated the prosecution of these matters to the municipality, and they are no
    longer prosecuted by the Attorney General.

. . .

In Mr. Vellones matter the remedy being sought is
    not as a result of an act or admission of either the Government of Canada or
    Government of Ontario.  Rather, the remedy is being sought as against the
    Region of York for not dealing with Mr. Vellones matter and bringing it to
    trial within a reasonable period of time.  As a result of the agreement
    that is in place under the provisions of the
Provincial Offences Act
, it
    is the municipality that is required to provide court resources and not the
    Government of Ontario.  Thus, if there has been a violation of s. 11 (b)
    in this matter it is as a result of the conduct of the municipality and not
    that of the Government of Ontario.  As such, it is clear that s. 109 of
    the
Courts of Justice Act
has no application to this proceeding.

Having reached this conclusion then, Mr. Vellone
    did not have to give notice pursuant to s. 109 of the
Courts of Justice Act
and thus should have been allowed to raise the argument in the course of
    trial.  The trial Justice of the Peace was in error in not allowing the
    motion to be dealt with in the absence of compliance with s. 109.

[14]

The appeal judge then went on to consider the
Charter
s. 11(b)
    issue on the merits.  He concluded that Mr. Vellones right to be tried within
    a reasonable time had been violated.  The appeal judge therefore allowed the
    appeal and stayed the speeding charge.

[15]

York Region sought leave to appeal, which was granted by order of
    Gillese J.A. dated April 21, 2009.  The Attorney General for Ontario intervened
    in support of York Regions position.  By order of the Chief Justice of Ontario
    dated November 17, 2010, Darrel Hotz was appointed as
amicus curiae
to
    oppose the appeal.  By order of the Deputy Registrar of the Court of Appeal
    dated May 3, 2011, and with the consent of the appellant and the intervener,
    Jordan Glick replaced Darrel Hotz as
amicus curiae
.  In both his factum
    and oral submissions, Mr. Glick performed his role as
amicus curiae
admirably.

C.
ISSUES

[16]

The issues are, as stated by Gillese J.A. in her order granting leave to
    appeal:

(1)

Is notice required pursuant
    to s. 109 of the
Courts of Justice Act
, or otherwise, where an accused
    seeks a remedy for an alleged
Charter
violation, where the act of
    omission complained of is that of a municipality; and

(2)

How is s. 11(b) of the
Charter
to be interpreted in the context of a Part I prosecution under the
Provincial
    Offences Act
?  In particular, what are the guidelines for intake delay and
    institutional delay; does the presumption of prejudice apply to such a
    proceeding; and how is delay caused by an inability to proceed due to
    unexpected courtroom conditions to be treated?

D.
ANALYSIS

(1)
The notice issue

[17]

The starting point on this issue is recognition that by virtue of s.
    95(3) of the
CJA
, the s. 109 requirement that parties give prior notice of
    constitutional questions and remedies applies to proceedings under the
Provincial
    Offences Act
, R.S.O. 1990, c. P-33, (
POA
). The speeding infraction
    in this proceeding is a
POA
offence.  Accordingly, there would appear to
    be a
prima facie
obligation to serve notice of the s. 11(b)
Charter
application on at least the Attorney General of Ontario.

[18]

The appeal judge rejected this obligation because, in his view, Mr.
    Vellones application implicated acts or omissions of only York Region and,
    therefore, did not require notice to the Attorney General of Ontario pursuant
    to s. 109 of the
CJA
.

[19]

With respect, I do not agree with this interpretation.  It misconceives
    the constitutional relationship between provincial and municipal governments,
    misunderstands the contractual relationship between the Government of Ontario
    and York Region in the domain of the prosecution of
POA
offences, and ignores
    the actual interests of the Government of Ontario in the issue of alleged delay
    in this case.  I reach this conclusion for several separate, but overlapping,
    reasons.

[20]

First, the relationship between s. 109 and the
Charter
supports
    an interpretation of s. 109 requiring notice in this case.  The wording of s.
    109 of the
CJA
parallels the wording of s. 32(1) of the
Charter
. 
    Section 109 of the
CJA
refers to the Government of Canada and the
    Government of Ontario.  Section 32(1) of the
Charter
provides:

32(1)  This Charter applies

(a)       to
    the Parliament and government of Canada in respect of all matters within the
    authority of Parliament...; and

(b)       to
    the legislature and government of each province in respect of all matters
    within the authority of the legislature of each province.

[21]

The Supreme Court of Canada has consistently held that municipal levels
    of government come within the meaning of government in s. 32(1) of the
Charter
:
    see e.g.
Ramsden v. Peterborough (City)
, [1993] 2 S.C.R. 1084;
Montréal
    (City) v. 2952-1366 Québec Inc.
, 2005 SCC 62, [2005] 3 S.C.R. 141; and
Greater
    Vancouver Transportation Authority v. Canadian Federation of Students  British
    Columbia Component
, 2009 SCC 31, [2009] 2 S.C.R. 295 at paras. 18-19.

[22]

Against this backdrop of statutory wording and case law, the term
    Government of Ontario in s. 109 of the
CJA
should be construed to parallel
    s. 32(1)(b) of the
Charter
.  It would not make sense to say that
Charter
s. 32(1) includes municipal action as action of the Government of Ontario but
    s. 109 of the
CJA
does not.

[23]

Second, interpreting s. 109 to require that
POA
Part I

defendants
    notify the Attorney General of Ontario before seeking
Charter
remedies
    serves the purposes of s. 109.  I accept the intervener Attorney General of
    Ontarios argument that there is a nexus between Mr. Vellones speeding ticket
    and the interests of the Government of Ontario.  Mr. Vellone was prosecuted for
    violating a provincial statute, the
HTA
, pursuant to procedures set out
    in another provincial statute, the
POA
.  The
POA
gives the
    Government of Ontario presumptive authority to prosecute contraventions of provincial
    statutes like the
HTA
under Part I of the
POA
.  In some parts of
    Ontario, such as York Region, the Government of Ontario has delegated this
    prosecutorial function to a municipality by a Memorandum of Understanding
    pursuant to Part X of the
POA
.

[24]

In the Memorandum of Understanding relevant in this case, the Government
    of Ontario, with the consent of York Region, sets standards that apply to POA
    Part I prosecutions.  The Government of Ontario maintains overall provincial
    oversight of the prosecutorial function.  Section 162(3) of the
POA
requires municipal partners to maintain the performance standards set by the
    province.  The Memorandum of Understanding requires municipal partners to
    maintain the same level of service delivery that was provided previously by the
    Province and to adhere to rigorous prosecutorial standards.  The Government of
    Ontario retains the right at any time to take over a prosecution, pursuant to
    s. 168 of the
POA
.

[25]

Within this legislative and contractual matrix, the component of s. 109
    of the
CJA
requiring people in the position of Mr. Vellone to notify the
    Attorney General of Ontario of his s. 11(b)
Charter
challenge serves two
    important purposes.  The notice requirement enables the Government of Ontario
    to decide whether to exercise its right to take over a case under the
POA
. 
    The notice requirement also furthers the Government of Ontarios important
    interest in monitoring the performance of municipalities under Memoranda of
    Understanding.

[26]

Third, s. 11(b) cases may raise concerns about systemic problems that implicate
    provincial responsibilities.  In this case, and indeed in most s. 11(b) cases,
    the decisions of court administrators (e.g. scheduling) and judges (e.g.
    adjournments) are often central to the claim and the analysis.  The issues
    raised in a particular case might point to systemic issues of personnel and
    resources.  Notice to the Attorney General of Ontario of a s. 11(b) challenge 
    or, perhaps, an avalanche of such notices  provides the Government of Ontario
    with important data about key components of the provincial justice system.

[27]

For these reasons, I conclude that the appeal judge erred by holding that
    Mr. Vellone did not need to provide notice of his
Charter
s. 11(b) claim
    to the Attorney General of Ontario pursuant to s. 109 of the
CJA
.

[28]

I briefly address one final matter.  Both York Region and the Attorney
    General of Ontario submitted that Mr. Vellone was required to provide written
    notice of his s. 11(b) claim to the York Region prosecutor.  The basis for this
    submission is either an expansive interpretation of s. 109 of the
CJA
(advanced
    by York Region) or a common law requirement that an accused provide the
    prosecutor with advance notice of a
Charter
claim (advanced by the
    Attorney General of Ontario).

[29]

In light of the resolution of the appeal on the issue of notice to the
    Attorney General of Ontario, it is not necessary, strictly speaking, to
    consider the different issue of notice to the municipal prosecutor.  I would
    decline to do so.  However, I do observe that in its recent study
Modernizing
    the Provincial Offences Act: A New Framework and Other Reforms
(Interim
    Report) (Toronto: Law Commission of Ontario, 2011), the Law Commission of
    Ontario recommended, at p. 165, that:

38.       The Attorney General table amendments to
    section      109(1) of the
Courts of Justice Act
that would:

a.         Require
    service of a Notice of Constitutional Question on prosecutors in all
POA
matters;

b.         Require
    that a Notice of Constitutional Question must be served on a municipal
    prosecutor when a party seeks relief under section 24(1) of the
Charter
relating to an act or omission of a municipality;

(2)
The delay issue

[30]

At the appeal hearing, the court announced that it would not address
    this issue in light of its decision on the first issue.

E.
DISPOSITION

[31]

The appeal is allowed and a new trial is ordered.  Counsel for the
    appellant municipality has undertaken to withdraw the charge.

RELEASED: December 14, 2011 (J.C.M.)

J.C. MacPherson J.A.

I agree Janet Simmons J.A.

I agree R.A. Blair J.A.


