R. v. Lourenco, 2011 ONCJ 237

Case File No. 4862 999 08 C0970860/861/862 00 Citation: R. v. Lourenco , 2011 ONCJ 237 THE ONTARIO COURT OF JUSTICE in the matter of the Provincial Offences Act, R.S.O., 1990 HER MAJESTY THE QUEEN v. ELISEU FERNANDES LOURENCO * * * * * * * * c o u r t p r o c e e d i n g s BEFORE HIS WORSHIP JUSTICE OF THE PEACE P. KOWARSKY on Friday, March 11 th , 2011 at 2700 Eglinton Avenue West, TORONTO, Ontario * * * * * * * * Charges: s.128 Highway Traffic Act Speeding s.172 (1) Highway Traffic Act under O/Reg 455/07 Racing – Driving at Rate of Speed - Marked Departure s.172 (1) Highway Traffic Act under O/Reg 455/07 Racing – Changing Lanes at Rate of Speed

- Marked Departure * * * * * * * * Appearances : Mr. R. De Faria Provincial Prosecutor Mr. V. Manoukian Agent for the Defendant ontario court of justice TABLE OF CONTENTS Exam. Cr- Re- WITNESSES : in-Ch. exam. exam. ********** EXHIBITS EXHIBIT NUMBER ENTERED ON PAGE ********** RULING ON MOTION 3 ********** REASONS FOR JUDGMENT **********

Transcript Ordered: April 15, 2011 Transcript Completed: May 4, 2011 Ordering Party Notified: _________________ FRIDAY, MARCH 11, 2011 R U L I N G KOWARSKY, J.P. (Orally) : This matter has been before the Court since July, 2008. When one looks at the Provincial Offences legislation it is clear that the legislation was promulgated for the very purpose of expediting matters that are prosecuted under Provincial Offences legislation in a timely manner.

The kind of history, or the history that I can see, of this particular case is definitely not in accordance with the governing principals underlying the Provincial Offences Act . And, when one considers whether an abuse of the process of the Court has taken place, the Court has to find that this is one of the clearest of cases in which the prosecutorial, defence and judicial administrative systems contributed jointly towards the violation: the defendant’s right to be tried in accordance with the fundamental principles of justice which underlie the community’s sense of fair play and decency.

It is clear to me that the defendant has come on many occasions. Partially, the delays and the periods of time that elapsed from one hearing date to the other lie at the – the delay is caused by the defendant, in one case by both waiting for the decision of a Provincial Court in relation to the constitutionality of the stunt driving legislation. Then in September of this year the issue was raised with respect to the illegible notes of the officer. A request was made, my brother Justice made an order that the typewritten notes be provided in the timeliest manner. The defendant had made several requests.

The Prosecutor, in his own words, indicated that as far as he knows, as far as he has been told by the officer, the typed notes were provided to the Prosecution’s office some time ago. In the mean time, he does not have it, the defendant does not have it and the officer does not have a copy of it. How many times can the defendant in this case, notwithstanding the seriousness of the Provincial Offences charges which he is facing, how many times can he be expected to keep on coming to court under the Provincial Offences legislation? The order of staying the proceedings under

section 106 of the Courts of Justice Act is an unusual type of proceeding but, in my view, from time to time that has to be taken into account. On the history of this case, it indicates to me that to allow this case to continue for a further period of time to make sure that the Court is available and that the defence agent is available for a trial would bring the delay in this case to more than two years, in my opinion, before this can be set down for a hearing.

And that presumably would be preceded by an application, a Charter application, which may or may not be heard prior to the trial or, maybe, at the end of the trial. It is of serious concern to the Court that this kind of thing continues to plague the courts from time to time and has been done in this case. For slightly different reasons that are based on the same principles which I have just enunciated, I ruled in a case called R. v. De Ciccio , [2005] O.J. No.1240 . My ruling was that the process of the Court had been abused. I referred in paragraph 20 of that decision to

section

106 of the Ontario Courts of Justice Act, which provides, and I quote, “A Court, on its own initiative or on motion by any personwhether or not a party, may stay any proceeding in the Court on such terms as are considered just”. I then quoted a case, R. v. Boise Cascade Canada Ltd. (1995) (ON CA), 24 O.R, (3d) 483 a decision of the OntarioCourt of Appeal by Justice Laskin who said: “Courts in this country now have unquestionable jurisdiction to prevent abuses of their processes by those responsible for investigatingand prosecuting offences. This court's judgment in Abitibi Paper Co. v.

R. (1979), (ON CA), 24 O.R. (2d) 742, 47C.C.C. (2d) 487, confirmed this principle for regulatory offences....Courts exercise their abuse of process jurisdiction to protect accusedfrom unfair trials and to preserve respect for the administration of justice.” In my view, to allow this case to continue would be an abuse of the process of the Court and pursuant to my jurisdiction under section106 of the Courts of Justice Act the proceedings are stayed. MR. MANOUKIAN: Thank you, Your Worship. Does this Court.... THE COURT: As far as costs are concerned, Mr.

Manoukian, I understand your position and I sympathize with your position. However, I am of the view that, although I am a Court of competent jurisdiction, the authority that I have to order costs is very limited. At the end of a Charter motion, provided that the behaviour of the Prosecution is, whatever the wording the Courts is, totallyunacceptable type of behaviour, in those types of cases the Courts can order costs to be payable by the Prosecution. In this case, I do notbelieve that the problem only rests with the Prosecution.

I believe the problem rests with the Prosecution as well as with the Defence aswell as with the Administration of Justice. And, I am only entitled to award costs for witnesses under

section 60 and in certaincircumstances, I believe, it is section, let me just find it, 90, just give me a moment, and I will give you exactly the

section that I amtalking about, yes,

section 60 deals with the minimal costs that can be awarded to witnesses.

Section 90, nine-zero, relates to costs thatcould be awarded when there are irregularities in form. And, it is clear that my decision here has nothing to do with irregularities in formand I do not believe that the fault for the abuse of the process lies at the feet of any particular element of the Prosecution or the Defenceor the Administration of Justice. All three together, in my respectful submission, have contributed towards an abuse of process for thedefendant. And, that is why I made my order. I thank you. MR. MANOUKIAN: I thank you, Your Worship. Thank you, my friend. MR. DEFARIA: Thank you.

Thank you, as well, to Mr. Manoukian. Thank you to the officer, as well. * * * * * * * * FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Kyle Sawyer , certify that this (Name of Authorized Person) document is a true and accurate transcript of the recording of R. v. E. F. Lourenco o (Name of Case) in the Provincial Offences Court t (Name of Court) held at 2700 Eglinton Avenue West, Toronto, Ontario v (Court Address)

taken from Recording W7 2011/03/11 083630 , which has been certified in Form 1 . May 4, 2011 ________________________________ (Date) (Signature of authorized person)