R. v. Islam, 2017 ONCJ 107

CITATION: R. v. Islam, 2017 ONCJ 107 DATE: January 26, 2017 Ontario Court of Justice Toronto, Ontario HER MAJESTY THE QUEEN v TANVIR ISLAM Ontario Court of Justice Toronto, Ontario R. Raczkowski for the Prosecution Defendant on his own behalf Before: J. Opalinski J.P. Heard: October 17, 2016 Delivered: January 26, 2017 REASONS FOR JUDGMENT MOTION 1 . The defendant has brought an application under

section 11(

b) of the Charter of Rights and Freedoms with regard to the issue of delay in bringing this matter to trial. The defendant filed the motion in this matter, alleging that service on all parties was properly affected in accordance with the Courts of Justice Act, R.S.O, c. C. 43 . ISSUE 2 . The issue before the court is: whether or not service of the Motion Record on both the Attorney General of Ontario and the Attorney General of Canada by way of a third party server or medium, namely, “Got Free Fax” constitutes proper service on the recipients, in accordance with the rules of procedure?

SUBMISSIONS BY THE PROSECUTION 3 . The submissions of the Prosecution may be summarized as follows: (

a) The prosecutor referred to the defendant’s methodology of faxing through the medium of “Got Free Fax”: as e-mailing the material and not faxing the material as required by the rules of practice. (

b) The prosecutor did not offer any further argument that would differentiate the medium being used. He simply stated that the method constituted e-mailing and not faxing and as such did not comply with the rules of procedure. (

c) No case law was offered to assist in the argument being made by the prosecution. (

d) No further written submissions have been provided by the prosecution, although these submissions were requested by the court. SUBMISSIONS BY THE DEFENCE 4 . The defendant’s submissions may be summarized as follows: (

a) The defendant described the process involved in faxing the motion record through the medium of “Got Free Fax”. The material is uploaded to a third party site through the computer. A window pops up which directs the user of this medium to upload the documents onto a website. This third party medium then sends the documents to the fax number that has been provided and the recipient fax machine then receives the material as a fax and confirmation is printed out indicating that the material has been received. (

b) This methodology is referred to as ‘electronic faxing’ and constitutes a modern technological method of faxing material to third party recipients. (

c) The defendant asserted that this method of faxing is no different than if an individual were to go to Shopper’s Drug Mart and have an employee of Shopper’s Drug Mart from their physical fax machine fax the material to the fax number that is provided. This material would then on the other end be received by a physical fax machine. Upon this material being successfully faxed, a confirmation sheet would be provided confirming receipt of the material. (

d) The only difference is that instead of faxing from one physical fax machine to another physical fax machine by feeding the material into the given fax machine, the material is uploaded to a third party server and sent to the designated fax number. In all likelihood, the recipient fax number may not even be a physical fax machine, but may very well be received on a computer which then allows the recipient to download and print out the material that has been faxed to them through the use of the fax number. (

e) The defendant asserts that 90% of offices now do not have real fax machines but rather the fax goes to a computer which then generates the physical material. (

f) The defendant has not produced to the court, by way of written submissions, any evidence that would substantiate the assertions he has made. THE LAW 5 .

Section 109 of the Courts of Justice Act, supra, includes the following: 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: 1. The constitutional validity or constitutional applicability of

an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such

an Act or of a rule of common law is in question. 2. A remedy is claimed under subsection 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 Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable, or the remedy shall not be granted, as the case may be.

(2.1) The notice shall be in the form provided for by the rules of court or, in the case of a proceeding before a board or tribunal, in asubstantially similar form.

(2.2) The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days beforethe day on which the question is to be argued, unless the court orders otherwise. 1994, c. 12, s. 42 (1). 6. Rule 5 of Criminal Proceedings Rules for Superior Court of Justice (Ontario) (SI/ 2012-7), sets out the manner of service withrespect to documents in Criminal Proceedings in the Ontario Superior Court of Justice. Subsections 5.05(1)(d), (3) &

section 5.08 stateas follows: 5.05

(1) Service of a document on the solicitor of record of a party may be made: (

d) by telephone transmission of a facsimile of the document in accordance with subrule (3);

(3) A document that is served by telephone transmission shall include a cover page indicating: (

a) the sender’s name, address and telephone number; (

b) the name of the solicitor of record to be served; (

c) the date and time of transmission; (

d) the total number of pages transmitted, including the cover page; (

e) the telephone number from which the document is transmitted; and, (

f) the name and telephone number of a person to contact in the event of transmission problems. 5.08 Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an ordervalidating the service where the court is satisfied that: • (

a) the document came to the notice of the person to be served; or, • (

b) the document was served in such a manner that it would have come to the notice of the person to be served, except for theperson’s own attempts to evade service. 7. The defendant made reference to the case of Mason v. John Doe No. 1 2011 ONSC 4663 , [2011] O.J. No 3572. This isa decision rendered by Justice Pepall of the Ontario Superior Court of Justice. It pertains to a civil matter and not to a criminal matter. The court held that JD1 was avoiding identification and service.

Pursuant to Rule 16.08 of the Rules of Civil Procedure, service of adocument may be validated “where the document has come to the notice of the person to be served or the document was served in such amanner that it would have come to the notice of the person to be served except for the person’s own attempts to evade service”. (at para7) The court held that the notice of motion had come to the attention of JD1 and granted the request for validation of service as JD1 wasdeliberately attempting to avoid service. 8. In the case of R. v. Szewdzyk [2001] O.J.

No. 5153 (On Ct Jus), the court held that service with respect to a

section 11(

b) Motionshould be in compliance with s. 109(2.1) of Courts of Justice Act supra. Service was by facsimile and verification of this service came inthe form of a fax transmission report. In spite of there being a discrepancy in the phone number that was used on the Notice and the oneused on the regulatory form, the court was satisfied that service was proper. ANALYSIS 9. The case at bar is a regulatory matter. The Court finds that the rules of Civil Procedure are not binding. The court is bound bysection 109 of the Courts of Justice Act, supra. This

section states that service should be on the Attorney General for Canada and theAttorney General for Ontario within 15 Days of the application being made, when this application addresses a constitutional issue. Service on the appropriate parties should be done by facsimile. 10. While the Criminal Proceedings Rules for Superior Court of Justice, supra, do not apply to matters commenced under the

Provincial Offences Act, R.S.O. 1990 c. P.33 , it may be used for reference purposes, as an aid. Section 2(2) of the Provincial Offences Act, supra., addresses this point and provides as follows: 2(2) Where, as an aid to the

interpretation of provisions of this Act, recourse is had to the judicial

interpretation of and practices under corresponding provisions of the Criminal Code (Canada), any variation in wording without change in substance shall not, in itself, be construed to intend a change of meaning. 11 . Consequently, rule 5.05(1)(

d) of the Criminal Proceedings Rules for Superior Court of Justice, supra. , indicates service can be effected by the use of facsimile. Rule 5.08 further allows the court to make an order validating service if the court is satisfied that service was made upon the person intended to be served albeit in a manner other than what is provided in the rules. 12 . There is no evidence before the court that the two receiving parties, the Attorney General for Canada or the Attorney General for Ontario have not received notification of the motion.

On the contrary, the defendant has provided the court with copies of a receipt sent from GotFreeFax.com indicating that material was successfully sent to both parties. The fax information was sent on September 30, 2016 at 12:00:33 AM PDT to the Attorney General at the fax number provided. The receipt further indicates that the subject matter was “s. 11b motion documents” and that the number of pages sent was 19 including the cover page. The same holds true with regard to the Justice Minister, that facsimile having been sent on September 30, 2016 at 12:19:41 AM PDT. 13 .

While the defendant is unfamiliar with court proceedings and perhaps should have filed a copy of the fax receipts, the court is satisfied given the electronic age we live in today, that facsimile service through a third party server, “Got Free Fax”, does constitute proper service by facsimile. 14 . This service was affected prior to 15 days of the date when the 11(

b) motion was to have been heard, that being October 17, 2016. DISPOSITION: 15 . For the reasons set out above, the court finds that service of the notice of constitutional application on the Attorney General for Canada and Attorney General for Ontario has been properly affected. As the issue of service has been addressed, the court is now prepared to hear arguments with regard to the 11(

b) application. Dated the 26th day of January, 2017, at the City of Toronto “J. Opalinski” Joanna Opalinski J.P.