R. v. Grabowski, 2011 ABQB 510

Court of Queen ’ s Bench of Alberta Citation: R. v. Grabowski, 2011 ABQB 510 Date: 20110812 Docket: 110235116U1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Peter Grabowski Applicant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] The Applicant, Peter Grabowski, was charged with driving a motor vehicle without a license, operating a motor vehicle without registration, and driving a motor vehicle with no insurance.

These alleged offences occurred May 27, 2009. Mr. Grabowski was convicted in his absence on January 17, 2011. His applies now to have those convictions set aside. He applies on the basis the trial court proceeded without jurisdiction. For reasons which follow Mr. Grabowski's application is dismissed. Background [ 2 ] The Application before me is by Notice of Motion filed February 28, 2011 for "Perogative [sic] or Extra ordinary Remedy,

for an Order of Prohibition with Certiorari and Mandamus in aid." In essence, Mr. Grabowski asks the court to review the Provincial Court's jurisdiction to have proceeded against him on January 17, 2011. [ 3 ] This Application is made under Rule 830 of the Alberta Rules of Court . It is the fourth such application brought by Mr. Grabowski in connection with the three Traffic Safety Act offences of which he was convicted. The following chronology is worth noting. (

a) Following the May 27, 2009 offence dates, Mr. Grabowski attended the Provincial Court September 24, 2009. A trial date was set for February 8, 2010. Some suggestion was made that Mr. Grabowski objected to trial dates being set. However, the transcript of the September 24, 2009 proceedings reveals that counsel appeared pro bono to assist Mr. Grabowski for that day only. The transcript reveals amongst other things that through counsel Mr. Grabowski indicated he wished to enter a not guilty plea and set a trial date. Mr. Grabowski was present when those representations were made to the court.

He did not object to them at the time. At the September 24, 2009 appearance Mr. Grabowski did object to an alleged failure on the part of the Crown to provide disclosure. The court determined that disclosure had been provided. Mr. Grabowski raised no other objection to the proceedings. (

b) On October 26, 2009 Mr. Grabowski filed a Notice of Appeal of the Provincial Court's September 24, 2009 decision refusing to order further disclosure. The notice was returnable February 19, 2010. There appears to be some uncertainty whether Mr. Grabowski, in appealing, had selected the wrong procedure. In any event, Mr. Grabowski proceeded also to file an application for prerogative relief, his first in connection with these tickets, by way of a notice of motion returnable February 26, 2010 still challenging the September 24, 2009 court's disclosure order. (

c) The February 26, 2010 appeal and motion sought to prohibit the Provincial Court from proceeding to trial against him, and sought certiorari in aid. It was Mr. Grabowski's position that the Provincial Court lacked jurisdiction owing to full disclosure not having been made. He also objected to the criminal process being used to adjudicate what he submitted were in essence civil matters. All matters were heard and dismissed by Belzil, J. on February 26, 2010. (

d) Mr. Grabowski appealed/sought leave to appeal from the February 26, 2010 decisions. His appeal/leave application was refused by Berger, J.A. on September 17, 2010: see R. v. Grabowski , 2010 ABCA 265 . (

e) In the meantime, Mr. Grabowski's original trial date of February 8, 2010 was adjourned several times, to March 5, 2010, then to June 23, 2010. (

f) One day before the June 23, 2010 trial date Mr. Grabowski filed his second application for prerogative relief in connection with the same three tickets, again seeking prohibition with certiorari in aid. In this motion he alleged the Provincial Court lacked jurisdiction because the officer who issued tickets lacked authority to do so. The application was returnable July 2, 2010. It was adjourned from that date to July 16, 2010. The adjournment came on account of the fact Mr. Grabowski was litigating a similar point before Acton, J., albeit in connection with different alleged offences. (

g) On July 16, 2010 the motion was put over once again, to October 29, 2010. Although before me Mr. Grabowski was unsure just what occurred on July 16 or for that matter October 29, 2010, I am advised by the Crown and accept that on October 29, 2010 the original motion filed June 22, 2010 was denied. (So too, incidentally, was the similar motion heard by Acton, J.) (

h) In the meantime the trial date on the original three traffic tickets was adjourned from June 23, 2010 to January 17, 2011. (

i) On the morning of January 17, 2011 Mr. Grabowski filed his third application for prerogative relief, seeking prohibition, mandamus and certiorari. That motion was returnable February 4, 2011 in the Court of Queen's Bench. The motion was received by the Provincial Court and by the Traffic Court prosecutor present the morning of the scheduled January 17, 2011 trial. There is no evidence it was served on the Attorney General for Alberta as such.

(

j) The January 17, 2011 motion alleged the Provincial Court again had no jurisdiction over Mr. Grabowski owing to its allegedconflict in that it was part of a system that gained financially by gaining convictions for traffic tickets. (

k) On January 17, 2011, after providing his Notice of Motion to the court and Crown, Mr. Grabowski simply left the courtroom.However, unlike the two previous occasions on which he served such motions, on January 17, 2011 the court proceeded in his absence.A transcript of those proceedings discloses that evidence was heard, convictions were entered, and fines were imposed. (

l) In the meantime Mr. Grabowski appeared on February 4, 2011 before Macklin, J. in connection with the motion he had filedJanuary 17, 2011. At that time, after a brief exchange with the court, Mr. Grabowski withdrew his originally filed January 17, 2011application in its entirety. That he voluntarily withdrew his application is confirmed by Mr. Grabowski's representations to me inChambers on June 24, 2011.

It is also borne out on a review of the recorded proceedings of February 4, 2011. (I pause to note that, onthat occasion, the clerk's endorsement for the February 4, 2011 appearance is in error when it says the application was "dismissed". Infact there was no hearing of the merits of Mr. Grabowski's application.) [4] We then arrive at the proceedings before me being the fourth application for prerogative relief in connection with the samethree May 27, 2009 traffic tickets. Mr. Grabowski first appeared before me on May 19, 2011, just one week shy of the two yearanniversary of the original tickets.

As noted, his application seeks prohibition and mandamus, with certiorari in aid. He objectsspecifically to the fact the Provincial Court proceeded in his absence on January 17, 2011 despite being provided with the applicationthat morning returnable before the Court of Queen's Bench. He relies on R. v. Batchelor, (1978) (SCC), 38 C.C.C. 2nd113 (S.C.C.) for the proposition that an inferior court's jurisdiction is suspended in favour of the superior court any time it is served witha Notice of Motion seeking review on the basis of jurisdiction.

Issues [5] The parties agree the following issues are raised in the briefs before me: (

a) That the Applicant, Mr. Grabowski did not agree to the January 17, 2011 trial date; (

b) That the Crown should have told Mr. Grabowski of his rights under s. 38 of the Provincial Offences Procedures Act to have hisconviction in absence January 17, 2011 set aside; (

c) That the Provincial Court lacked jurisdiction to run the trial January 17, 2011 in Mr. Grabowski's absence, once he had filed histhird Notice of Motion returnable February 4, 2011; (

d) That the offences with which he was charged were in any event absolute liability offences; (

e) And that the January 17, 2011 verdict was in any event unreasonable, and unsupported by the evidence. [6] Mr. Grabowski was given every opportunity to address all of the issues raised in his materials. He acknowledged howeverthat his application was grounded in the R. v. Batchelor argument that the Provincial Court on January 17, 2011, faced with a motion tothe superior court, at least temporarily lost jurisdiction over the matters in question. [7] With regard to the balance of the issues, Mr.

Grabowski did not seriously argue that his disagreement regarding the January17, 2011 trial date was of any real consequence. It was obvious that date was set on June 23, 2010 as a convenience, and to enable theProvincial Court to keep track, so to speak, of the three traffic matters. Mr. Grabowski had earlier entered a plea and had agreed to the

initial trial date of February 8, 2010. [8] As to s. 38 of the Provincial Offences Procedures Act, the Crown was under no obligation to provide advice the absence ofwhich Mr. Grabowski now complains about. Moreover, it is inconceivable that Mr. Grabowski, after abandoning the court on January17, 2011, could advance a "reasonable excuse" as required by s. 38 for failing to dispute the charges or for failing to appear in person orby agent at his trial. [9] Mr.

Grabowski did not seriously argue that the Provincial Court lacked jurisdiction on the basis of "no arraignment", or thatthe offences with which he was charged were "absolute liability" which in any event is not the position of the Crown and is not correct inlaw. [10] Nor finally did Mr. Grabowski seriously press his argument before me that the Provincial Court verdicts were "unreasonable". [11] Before turning to the Batchelor issue, it is worth noting the Crown raised several threshold arguments before me. It arguesthat on January 17, 2011 Mr. Grabowski was out of time to seek certiorari.

Rule 830 of the Alberta Rules of Court sets out a six monthlimitation for an application for this relief from the decision being challenged. I am unable to give effect to the Crown's argument. First,Mr. Grabowski seeks not only certiorari but also prohibition and mandamus. Second, his Notice of Motion served January 17, 2011challenges a 'state of affairs' rather than a discrete decision the date from which might or might not be six months in the past. Given thosefindings, it is unnecessary to consider further the impact of R. v.

Lupyrypa, 2008 ABQB 427 which was raised before the court. [12] The Crown also argues Mr. Grabowski failed to comply with Rules 831 and 832 requiring certain endorsements to the Rule830 Notice of Motion. I am also unable to give effect to this argument. Again, given the nature of Mr. Grabowski's stated objection to thejurisdiction of the Provincial Court on January 17, 2011, it is hard to imagine the practical effect of a Rule 831/832 notice or indeed howthose to whom the notice might be directed would comply with it. The Batchelor Issue [13] The real issue before me is whether Mr.

Grabowski is entitled to bring multiple applications for prerogative relief, related to the same three traffic tickets - and thus repeatedly to enjoy the protection Batchelor offers - when all that is new in his 2nd and 3rd suchapplications are his arguments as distinct from any new facts or changes in circumstances he can bring before the court. [14] The Crown acknowledges Mr. Grabowski's February 28, 2011 Notice of Motion raises a new argument. It also acknowledgesthat at face value R. v.

Batchelor requires the Provincial Court to defer to the reviewing court's jurisdiction to hear the prerogative reliefapplication. The Crown submits however that there must be limits on the number of occasions for review, on the basis that in theinterests of the administration of justice the trial court must retain the ability to hear and decide charges on a timely basis. R. v.Turkiewicz, (1979) (ON CA), 50 C.C.C. (2nd) 406 (Ont. C.A.) was relied on. R. v. Frankel, (ABCA), [1969] 68 W.W.R. 201 (Alta.

C.A.), while not argued before me, is also of some assistance to the Crown's position. [15] Fundamentally however the Crown relies on St. Onge v. Municipal Court of Westmount, 1959 CarswellQue 241 (SuperiorCourt) as authority for the proposition that multiple applications for prerogative relief will not be permitted. The court in St. Onge citesThe Queen v.

Mayor and Justices of Bodmin, [1892] 2 QB 21 (which itself follows Ex p.Thompson (1845) 6Q.B. 721), per Day, J, whoin the context of mandamus, stated: ... no second application for a high prerogative writ should be allowed after a first application has been refused. Such a writ is anextraordinary remedy, and persons seeking it may very reasonably be required not to apply for it unless they have sufficient cause fordoing so.

They must come prepared with full and sufficient materials to support their application, and if those materials are incomplete, Ithink it is quite right that they should not be allowed to come again. [16] While the St. Onge decision does not appear to have been considered elsewhere, the underlying authority of The Queen v.

Mayor and Justices of Bodmin has attracted some attention by other Canadian courts. It was followed in R. v. Geiser, [1903] B.C.J. No.13 (Supreme Court). In the more recent decision of Permanent Investment Corporation Ltd. v.

Township of Ops and Graham, (ON SC), [1967] 2 O.R. 123 25, however, the Ontario Court of Appeal considered the Bodmin case, then stated a somewhatmore nuanced test: The Bodmin and Thompson cases are both cited in 11 Hals., 3rd ed., p. 83, para. 156 for the proposition that "when an order ofcertiorari, prohibition or mandamus has been made, argued and refused on the ground of defects in the case as disclosed in the affidavitssupporting the application, it is not competent for the applicant to make a second application for the same order on amended affidavitscontaining fresh materials." The principle states in these general terms can be misleading, and a close examination of the cases citedmakes it plain that the rule is a rule of practice which, over the years, the Courts have found to be a convenient one, but they have beenloath to deprive a person of a right to which he is justly entitled by a harsh and arbitrary application of it.

This was made abundantly clearby Ritchie, C.J. in the Queen v. Com'rs of Sewerage etc. of the City of St. John (1870), 1869 CanLII 12 (NB KB), 12 N.B.R. 3 at pp. 14,15, and in the cases to which he referred. [17] In Permanent Investment the Ontario Court of Appeal allowed a further application after finding that materials vital to thesubsequent application did not exist at the time of the initial one.

The nuance then arose essentially on the basis of 'new evidence',although it is perhaps open to question whether other circumstances might exist enabling a court to avoid the "harsh and arbitraryapplication" of the rule of practice set down in Bodmin. [18] Applying the Permanent Investment test, the one most generous to Mr. Grabowski's position, it can hardly be said that he isbeing deprived of any rights by a harsh or arbitrary application of the usual rule barring multiple applications for prerogative relief. [19] As a starting point, of course Mr.

Grabowski was not bringing his second such application on January 17, 2011, but rather histhird. On that point alone the cases most generous to his position are distinguishable. [20] Moreover, certainly on the second and indeed third applications there was no 'new evidence'. There were only new arguments.To reprise, Mr. Grabowski's first prerogative relief application was argued on the basis of impugned disclosure. His second was arguedon the basis of a lack of jurisdiction in the officer to issue tickets. His third on the basis the court was in conflict for being party tocollecting fines.

Nowhere did the facts or circumstances change - the same three tickets were being challenged, he could have arguedeach of his points on his first application. [21] Mr. Grabowski acknowledges as much. In his written submissions he states: Prior to trial any number of applications can be made to a superior court, provided they involve different issues which have notpreviously been decided by that court. [22] Perhaps more colorfully but to the same effect, his submission in argument on May 20, 2011: The Crown can say that I'm going to keep making applications to avoid trial.

The problem with that is that I'm going to run out of ideas.I'm not, like I said earlier, I'm not the sharpest pencil in the box. But you know, I'll run out of ideas. Well yeah, I probably will. And thenit's going to go to trial. I'm not avoiding trial, I'm just trying to make a full answer in defence. [23] As to the fourth prerogative relief application - it unfolded on the basis that Mr. Grabowski was convicted in absence onJanuary 17, 2011, contrary to the Batchelor principle. Granted, the convictions were new. They did not exist at the time of the first,second or third applications.

Does this new fact or circumstance engage the 'new evidence' or any other test set out in PermanentInvestment? [24] In all of these unique circumstances I find it does not. And in doing so I consider the broader language of PermanentInvestment which admonishes the courts to be "loath to deprive a person of a right to which he is justly entitled by a harsh and arbitrary

application of [the Bodmin principle]. Even in the face of the 'new' January 17, 2011 convictions, Mr. Grabowski had by then not only enjoyed but exploited the Batchelor protection. Batchelor had enabled Mr. Grabowski to avoid trial on three earlier occasions. On each of those occasions his motions for prerogative relief were summarily dismissed or, worse, withdrawn. While he calls it "full answer in defence", I find that Mr. Grabowski was intentionally delaying the prosecutions.

In the face of the fourth motion for prerogative relief, and having absented himself from the proceedings, the court on January 17, 2011 was entitled to proceed on evidence to convict and to sentence Mr. Grabowski. In so finding, I am depriving Mr. Grabowski of no right to which he is justly entitled by a harsh or arbitrary application of any legal test. [ 25 ] The application is accordingly dismissed. Any earlier stays on sanction following the January 17, 2011 convictions are no longer of force or effect. Heard on the 20 th day of May and the 24 th day of June, 2011.

Dated at the City of Edmonton, Alberta this 12 th day of August, 2011. Peter B. Michalyshyn J.C.Q.B.A. Appearances: Julie Snowdon for the Crown Respondent Peter Grabowski for the self-represented Applicant