R. v. Trigub, 2011 ONCJ 110

Information No. 10-5332 Citation: R. v. Trigub , 2011 ONCJ 110 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN V. ARTHUR TRIGUB ********** RULING BEFORE THE HONOURABLE MR. JUSTICE G.A. POCKELE on January 25, 2011, at LONDON , Ontario ********** APPEARANCES : J. Hanbidge Counsel for the Crown M. Simrod Counsel for A. Trigub TUESDAY, JANUARY 25, 2011 RULING POCKELE, J. (Orally): By my calculation, this Charter Application was served 11 days in advance of the date set for trial. The Ontario Rules of Court in Criminal Proceedings (hereinafter referred to as the “Rules”) serve a "critical function" in enhancing the quality of the administration of

justice in criminal cases. The requirements of the Rules serve to focus proceedings and to ensure a minimally adequate record upon which to adjudicate; integral to the effective operation of the regulatory regime are time limits for serving and filing relevant materials. Moreover, the adversary system requires the participation of "informed parties." It miscasts the rules of the court, and impairs the appearance of fairly administered justice, to require the presiding judicial officer, in effect, to factually and legally "top up" one litigant’s case.

As another court put it, the Rules are designed to prevent "litigation by ambush" This quote is from Justice Libman, in his commentary, Criminal Trial Rules In Provincial Courts In Canada. The single most frequently occurring application advanced in the Ontario Court of Justice at the trial of a drinking and driving charge is an application to exclude evidence based upon a breach of the Canadian Charter of Rights and Freedoms . It has become a rarity when such a claim for relief is not advanced at the trial.

This is extremely relevant because such applications are not novel, are routine, and are part of the fabric of the defences advanced by the usual practitioner of criminal law. Rule 30 applies to all applications under section 24(2) of the Charter for the exclusion of evidence. It specifically provides and outlines the contents of the Notice of Application for such relief, the guidelines for filing and serving such Notices of Application, and the materials for use on such an application. Unfortunately, full and complete compliance with this rule is a rarity.

Rule 30.03 deals with the contents of the Notice of Application. It directs that the application state, "The anticipated evidence sought to be excluded, including any derivative evidence, a concise statement of the exclusionary issue under the Charter , a statement of the exclusionary principles," and the "Documentary, affidavit or other evidence to be used at the hearing," and where necessary, that an order is required to abridge or extend the time for serving and filing materials.

Rule 30.04 deals with two separate but related actions, the service of the Notice of Application and supporting materials and the filing (with the court) of such materials. These provisions must be read with Rule 3, relating to the computation of time. In the computation of time between two events, the day of the first event is excluded and the day of the second event is included. Service made after 4:00 p.m. is deemed to have been made on the next day that is not a holiday. This Rule provides that the responding party shall be served not less than 15 days before the trial date.

These same documents must be filed with the court at least 10 days before the trial date. The filing requirement is important because it enables the documents to be delivered to the trial judge in a timely manner so that the judge can familiarize himself with the issues at trial in advance of the trial date. The Local Administrative Judge in the West Region issued a Practice Direction as contemplated by the Rules on May 1 st , 2008 requiring that the 15 day rule be extended to 30 days for all matters proceeding in London, Ontario.

This Practice Direction was publicly distributed and is available to all members of the public. As a Practice Direction, this is the rule in London. Any counsel who asks the trial co-ordinator, crown attorney or a defence agent for a copy of this can have it provided to him or her. Rule 30.05, uses mandatory language, "shall" directs the materials to be used in a Charter Application to exclude evidence. This includes a copy of the information, transcripts that may be available, and, "Where necessary to complete the record," an affidavit by or on behalf of the applicant.

Rule 30.05 (2) - the contents of the affidavit are further defined in mandatory language. The affidavit "shall" include the basis of the affiant's knowledge, and "a statement of the facts material to a just determination of the exclusionary issue which are not disclosed in any other materials filed in support of the application". While the rules provide no commentary concerning the background and intent of these rules, nevertheless, the Rules speak in mandatory language. Clearly, advancing a Charter Application is not to be considered a casual process.

It is a serious process which, from the perspective of the judge, requires that the applicant thoroughly and completely provide a wide spectrum of materials to the judge, well in advance of the hearing date.

A judge, for example, is not expected to seek out a copy of the information from the court staff when he receives a Charter Application. No copy of the information was included here. A transcript, not a

summary of the evidence, must be filed. An affidavit must besourced and must contain sufficient information to support a just determination. Counsel must realize that trial judges regard CharterApplications seriously and we also are concerned with "ambush" on the road to trial. The requirement for an affidavit is only removed if there is sufficient other materials before the court, I suggest this could be satisfied byway of transcript or an agreed statement of facts.

Otherwise, an affidavit is virtually mandatory, although there may well becircumstances where the uncontested facts are actually set out in the notice of application. In this matter, the applicant is Arthur Trigub. His trial is scheduled for today, January 25th, 2011. His Charter Application was served on January 13th, 2011. Excluding the first date of the event, the calculation of time begins on January 14th. By my calculation, thisnotice of application was served 11 days before the trial date. The timestamp on the fax service indicates it was served 14 minutesbefore the 4:00 p.m. deadline.

This is well short of the 15 days service permitted under the Rules and is 19 days late according to thePractice Direction governing procedures in London courts. Mr. Trigub has asked for an order extending and permitting late service and filing. There is no affidavit or explanatory materials filed toprovide a foundation for this request; I have made inquiries of counsel. Without attaching a copy of the information, I am unable todetermine when the trial date was set, whether some latitude should be granted where a "speedy" trial date was set, whether there was apre-trial in which charter issues were discussed.

These matters all were the subject of inquiry, as I heard this request to extend the timefor filing. As a judge, we often make decisions based upon materials that are presented to us at trial and not via independent research. This is whyit is important for judges to receive material well in advance. We have access to late-breaking legal decisions and commentary, whichsometimes assists in the resolution of issues.

When judges do not have matters fully argued in front of them, then we have the problem as described in Hansard Spruce Mills, (1954) (BC SC), 13 W.W.R. (N.S.) 285 B.C.S.C., a decision of the British Columbia Supreme Court, which stands for theproposition that a judge should not rule contrary to a judgment of another court of the same, or equivalent jurisdiction, except where it isdemonstrated that some binding authority, is case law or relevant statute was not considered or, where the exigencies of the trial requiredan immediate decision without an opportunity to fully consult authority.

In other words, we must be careful that bad decisions end up asbad precedents binding judges. Only early, independent presentation of a balanced case book enables a judge to address these mattersadequately and this should be done well prior to trial. Past the issue of late service on short notice, this Applicant is deficient regarding supporting materials. I have already referred to theabsence of a copy of the information.

The bold outline of facts contained in the Notice of Application fails to pass the threshold toenable me to screen this application and determine whether it is sufficiently meritorious to proceed. I have made inquires of counsel andcounsel has provided me with details of the delay in providing the roadside screening device that he will rely upon. Rule 30.03 does not anticipate or expect the factual foundation for the application to be included in the Notice. Rule 30.05 speaksdirectly to this.

This is a situation where an affidavit should have been provided, because otherwise, there is no information to completethe record and I am forced to rely upon the representations of counsel in open court, untested and not received under oath. Mandatory terms state that where an affidavit is required, then it should contain a statement of facts material to a just determination,where such a statement of facts has not been disclosed. This is another weakness in the Application.

In his address to the Criminal Lawyers Association in 2008, Justice Moldaver created great controversy when he urged the assembleddefence counsel not to, "Waste the court's time with frivolous or tenuous matters that have little or no chance of success." He describedthis as the "worst form of advocacy." He later stated, "I need you to be good advocates of your use of the Charter.

I need you tounderstand that the Charter is not your personal ‘Genie in a bottle.’" His statements are important because here, this CharterApplication, any Charter Application filed at the last minute, absent supporting materials filed in the proper form, served so late that nopre-trial can be held, has all the hallmarks of a frivolous and tenuous Charter Application. In the context of Charter Applications, in order for our justice system to operate, trial judges must have the ability to control the course ofproceedings before them.

One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one

counsel, when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court. The ability of judges to screen pre-trial motions and charter motions is not a new concept to criminal law.

The Ontario Court of Appeal dealt with this in 1992 in the decisions of Kutynec and Durette , both decisions of Justice Finlayson, where he said, "The trial judge may call upon the defence to summarize the evidence that it anticipates it would elicit on the application if the defence is able to summarize the anticipated evidentiary basis for its claim, and if that evidence reveals no basis upon which the evidence could be excluded, then the trial judge need not enter into an evidentiary hearing. In other words, if the facts as alleged by the defence in its

summary, provides no basis for the finding of a Charter infringement, or a finding the evidence in question was obtained in a manner which infringed the Charter or a finding that the test for exclusion set out in s. 24(2) was met, the judge should dismiss the motion without hearing evidence". This Notice of Application contained a bald statement that there should be exclusion under s. 24(2) without any statement of principles or provision of relevant cases.

More recently, in a paper delivered by Chief Justice Heather Smith in May 2006, entitled New Approaches To Criminal Trials , a paper prepared by a blue ribbon panel, including Justice Durno, it was stated at paragraph 275 that the notice and supporting material must provide a judge with sufficient detail to permit him to conduct a "threshold screening" to determine if the order requested could be obtained on the basis of the written materials filed.

Where the notice fails to provide a basis upon which the order could be obtained, the trial judge should not hear the application, since on the basis of the material filed, the relief requested could not be obtained or had no reasonable likelihood of being obtained. At paragraph 276, the report stated if the material filed is so deficient the trial judge cannot determine whether there is a reasonable prospect that the application could succeed, there is no need for lengthy submissions in court. The application should simply be dismissed by the trial judge.

At paragraph 278, the report states that, "Pre-trial applications should not be a fishing expedition with counsel seeking to find a charter violation." I was told today that perhaps the evidence of the investigating officer would reveal the facts that would support the Charter Application.

The report spoke to the need "to raise the level of acceptable standards of practice for pre-trial applications and to make it clear that the application may not proceed if the prerequisites are not established." At paragraph 313, Justice Durno and his panel reported, "With respect to the view of some members of the bar that the remedy for non-compliance should be an adjournment, it is neither realistic nor conducive to effective case management.

Rather, it fosters poor advocacy and ineffective case management and prolongs or delays trials." In addition, the approach advocated by some counsel displays a patent disregard for the interests of the complainants, the victims, the witnesses, other accused persons and the public in having a realistic trial date set. At paragraph 317, the report recommends that in considering whether a non-compliant application proceeds, the judge should consider the merits of the application as reflected in the Notice of Application and supporting material.

As previously indicated, there is no supporting material here; the Notice of Application is sparse. The second consideration is the explanation offered by opposing counsel and whether any explanation was offered to the trial co- ordinator. I know this matter was not pre-tried. It was set for four hours of trial. It was set six months ago. The explanation that it is not usual practice in counsel’s local area to have judicial pre-trials falls on deaf ears. This should have been pre-tried. It should have been presented to a judge well in advance.

The third issue was whether there was any prior indication that such an application would be brought. I am advised that the crown was told that a Charter Application was brought when the resolution meeting was heard. There is no trial setting slip accompanying the information, which is usual practice in London, which would provide this information. In any event, that is the explanation that is offered. The fourth issue is the explanation why the notice was not filed and the rules were not complied with. Counsel has indicated this is his personal practice. It is a decision he makes. I have his explanation.

It does not seem to be consistent with the principles in the Martin Report or Criminal Justice Review Committee in providing the administration of justice with an opportunity to vet, deal with and assist in resolution of matters at an early date; but, moreover, it places the Crown in a position where late filing demands a hurried response and a hurried response is inevitably a poor response.

The material before me is inadequate to conduct a proper screening process. It must be realized that by announcing that an accused intends to bring a Charter Application, the accused is not entitled to hold the court captive while a frivolous, tenuous or unmerited Charter Application is advanced to the court. There is a screening process. Here, where materials are filed late, it is a hallmark of an invalid, weak or unmeritorious Charter Application.

The failure to provide an affidavit, the failure to provide a copy of the information; these are all part of the rules which are necessary to the efficient administration of the court. Now, let us bring this matter to a head. When I indicated that the Crown had not responded, the applicant was quite prepared to rely upon the rules and the established case law to limit the ability of the Crown to respond.

When the issue changed to one of receiving an order for the abridgement of time and service, all of a sudden, there was a request for some latitude under the rules, resulting in the applicant now seeking an adjournment. This is a four hour matter, virtually an entire day. To seek one day for trial, a judicial day is four-and-a-half hours, would result in a trial date being set in this court sometime in August or September of 2011. We have at least two prosecution witnesses here today.

All of this has come because of the late filing of a Charter Application, one that is so devoid of supporting material, that even without the late filing, it fails to meet the screening test. With great regret to Mr. Trigub, I am not going to permit the filing of this Charter Application. The crown has indicated that they are ready to proceed. I am not ready to have a litigant defend the Charter Application without any preparation or materials filed on the matter either. This is not between the crown and defence. It is for the judge, it is for the effective administration of justice. Mr.

Simrod, with some regret, your Charter Application will not proceed, however, the Crown still has to establish such issues such as suspicion and I have never taken the position that that is a Charter issue; it is a factual one. ********** FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) I, CHRISTINE BRYANT, certify that this document is a true and accurate transcript of the recording of Her Majesty the Queen v. Arthur Trigub, 80 Dundas Street, London , Ontario taken from recording no. 19/11, which has been certified in Form 1. February 16, 2011 (Date) CHRISTINE BRYANT

PHOTOSTATIC COPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND HAVE NOT BEEN PAID FOR UNLESS THEY BEAR THE ORIGINAL SIGNATURE OF CHRISTINE BRYANT, AND ACCORDINGLY ARE IN DIRECT VIOLATION OF ONTARIO REGULATIONS 587/91, ADMINISTRATION OF JUSTICE ACT , JANUARY 1, 1990. Transcript Ordered: January 27, 2011 Transcript Completed: February 16 , 2011 Transcript Delivered: February 17, 2011