Ontario (Motor Vehicle Industry Council) v. Peel Chrysler Plymouth, 2014 ONCJ 504

Citation: Ontario (Motor Vehicle Industry Council) v. Peel Chrysler Plymouth

(1991) Inc., 2014 ONCJ 504 -ONTARIO COURT OF Justice Central West Region BETWEEN: Peel Chrysler Plymouth

(1991) Inc. Applicant -and- Regina (Ontario Motor Vehicle Industry Council [hereinafter “OMVIC”]) Respondent In relation to a Motion brought for Relief under s.11(

b) and s.24 of the Charter of Rights and Freedoms, argued 21 May, 2014 Decision and Reasons issued 12 September, 2014 Appearances: Rusek, M. Counsel for Respondent OMVIC Rosa, O. Counsel for the Applicant Statutes Considered or Cited: Canadian Charter of Rights and Freedoms (“Charter”) Motor Vehicles Dealers Act, 2002, R.S.O. 2002, c.30 (“MVDA”) Provincial Offences Act R.S.O. 1990, c. P.33, as amended Cases or Sources Considered or Cited: R. v. CIP Inc., (SCC), [1992] 1 S.C.R. 843 R. v. Askov, (SCC), [1990] 2 S.C.R. 1199 Background and History of the Case 1.

The Applicant is before the Court, responding to two charges laid under the MVDA for allegedly failing to ensureadvertisements comply with the Act. 2. On the last trial date, defence brought a motion for relief under s.24 of the Charter, asserting that its right to be tried within areasonable time, pursuant to s.11(

b) had been breached. 1. The defendant was charged for events said to have occurred on June 10, 2010. An Information was sworn in a court in theToronto jurisdiction on September 30, 2010, however, it appears that the informant, mindful that the prosecution was scheduled for theBrampton Provincial Offences Court, took both the summons issued at that time as well as the original of the Information. When servingthe defendant with the summons, he then inadvertently left the original of the Information with the defendant as well. Obviously, thatInformation never made its way to the Brampton court. 2.

Apparently realizing this, another Information was subsequently sworn in the Brampton court, in mid-October, 2010, and afurther summons was requested and authorized, returnable the same day as the original summons. When the defendant appeared in court

in answer to the summons, it was not aware that the Information before the Court was not the same as that which served as a basis for issuance of the summons that notified it of the existence of the charge. This did not become clear until certain evidence was led (see paragraph 8 below). 3 . The defendant made appearances in November and again December, 2010, at which time it was provided disclosure. A trial was set, and while not so stated on the record, it appears that the parties had anticipated that the trial would be relatively short (ie no accommodation was made for a trial of lengthier duration). 4 .

On the trial date, the assigned justice acknowledged a conflict arising from her association with one of the Crown witnesses, and ordered the matter go over to a further date to be again set for trial. As a result of discussion between the Crown prosecutor and defence counsel, the estimated length of trial grew to at least one day, making a judicial pre-trial an appropriate step, and one was ordered for July, 2011. 5 . At the pre-trial, the matter was not resolved, and it was sent back to be scheduled for a new trial date.

That date was set by agreement of the parties in September, 2011, for a date in April, 2012. 6 . Just prior to that date, counsel for the defence underwent a surgical procedure the result of which he was not available for the trial date, and he filed a motion to adjourn the trial date. The motion was eventually granted on consent given by the prosecutor, and a third trial date was set for May, 2012. 7 . In the days before that new date, Crown provided additional disclosure, triggering a further motion to adjourn brought by the defence, on the basis that it needed time to re-consider its trial strategy.

That motion was also granted, and the matter was put over to July, 2013, now for two days. 8 . On the first of the two scheduled trial dates, the evidence revealed that the original Information – which is the document that had been disclosed to the defendant – was not the charging document before the Court. Further, evidence suggested additional disclosure which had not been provided to the defence. During the lunch recess, the Crown prosecutor attended at the OMVIC offices and caused records maintained by the enforcement agency to the printed.

Defence then brought a further oral motion for adjournment, to consider any question as to jurisdiction that might arise from the new information about the swearing of two Informations , as well as the additional disclosure. Subsequently, the matter was adjourned to the date that this motion was argued. 9 . At the completion of argument, the matter was further adjourned for a decision and reasons in relation to the Charter application. Issues and Findings 10 . The parties agree that the framework for determining that question is found in R. v.

Askov which found that the four factors to be to be taken into account: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his or her right (or waiver); and (4) prejudice to the defendant. Length of the Delay 11 . Although the defendant in this case is a corporation, the Supreme Court found in R. v. CIP Inc. that “the phrase ‘Any person charged with an offence’ in the context of s. 11(

b) of the Charter includes corporations.” 12 . The total time from the date of the alleged offence until the Motion is almost exactly forty seven months. Of course, the period from the date of the alleged offence until the date that the investigation was complete and the charge was laid does not factor into the analysis. Even taking that period of some three and one half months into account, this delay is prima facia excessive, and requires and examination of the reasons for the delay and consideration as to whether this delay is unreasonable in Charter terms and warrants a stay. Reasons for the Delay 13 .

There was extensive evidence and submissions with respect to the reasons for the delay. The evidence was primarily in the form of the transcripts, together with copies of the motion records for defence and Crown, relating to this case. While there was significant “debate” as to whether the responsibility for certain adjournments should be attributed to one side or the other, I find that these matters can be dealt with reasonably expeditiously.

To assist, I have constructed the following table to detail my findings: Reason Duration (months) Investigation 3.3 Intake 1.1 Inherent 4.1 Institutional 4.5 Crown 23.2 Defence 10.8 47.0 14 . I find that the Intake period from the date the first Information was sworn until the first appearance was not unreasonable.

15 . I find the following periods of time as Inherent: a. From first appearance to second appearance for disclosure b. From the first trial date (when a conflict was identified and a judicial pre-trial was found to be appropriate) through to the date when the second trial date was set (September, 2011) 16 . I ascribe the following periods to the defence: a. From the April, 2012 trial date through to the May, 2012 trial date (11(

b) waived by the defence) b. Twenty five percent of the time periods from the setting of the first, second and third trial dates through to each of those trial dates, on the basis that such time was required by counsel to prepare for trial and to find available time on his calendar; defence made a number of representations that he had limits to his availability and would not be able to properly review materials, consider the implications for defence strategy and or prepare for the defence.

That said, counsel made no representations on the record as to when he would have been available or how much time was needed to be ready to proceed, so the Court is left to apportion time on a “best guess” basis. 17 . I ascribe three quarters of the time from the date the first trial was set until the trial date itself as Institutional, recognizing limits on resources such that an earlier trial date could not be set. 18 . Finally, I attach the balance of the time to the Crown, as a result of the timing of providing disclosure materials, resulting in defence requests for adjournments to consider their impact.

The defendant's assertion of his or her right (or waiver) 19 . As indicated above, the defendant expressly waived its right to assert that its right to be tried on a timely basis for the period of relay related to counsel’s medical requirements. At no other time did counsel waive a right to be tried on a timely basis.

While the basis for a concern about delay may have arisen in the mind of the defendant at some time prior to the date when the Charter motion was filed pursuant to the Rules of Court , it is clear that it was unable to properly assess or indeed perfect such an application until the copies of the transcripts of the proceedings that it requested were actually produced. While I may have been inclined to attach some additional responsibility to the defence for failing to bring its application earlier, the lack of availability of transcripts provides a reasonable explanation for not making its application earlier.

Prejudice to the Defendant 20 . This area of consideration is perhaps pivotal. Although the Supreme Court in R. v. CIP Inc. found that a corporate defendant is considered a person for the purposes of asserting a claim that its Charter rights had been infringed, the Court went on to add significant flavour and considerations to cases involving such corporate defendants.

I find it informative to set out below the extensive comments on the point, starting at paragraph: 49 In Askov , Cory J. appears to have placed much emphasis on the "exquisite agony" experienced by accused persons and their families while awaiting trial (at p. 1219). Lamer C.J. echoed that concern in his reasons. He observed that the purpose of s. 11(

b) is to put an end to the process giving rise to the "anxieties" of the accused (at p. 1249). In so holding, Lamer C.J. essentially reiterated his position in Mills v. The Queen, supra, where he stated (at pp. 919-20) that: ... under s. 11(b), the security of the person is to be safeguarded as jealously as the liberty of the individual. In this context, the concept of security of the person is not restricted to physical integrity; rather, it encompasses protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation" (A. Amsterdam, loc. cit., at p. 533).

These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction. These forms of prejudice cannot be disregarded nor minimized when assessing the reasonableness of delay. 50 In my view, none of these concerns -- with the exception of legal costs -- logically applies to corporate entities. In order properly to assess the reasonableness of delay, a court has to balance the [page863] various interests at stake.

The interests of the accused must be weighed against the interest of the community in ensuring that those who have allegedly transgressed the law are brought to justice. The balancing process must be fair. There is no room for artificiality. It seems to me that allowing a corporation to rely upon a presumption of prejudice would offend that principle. It is therefore my opinion that with respect to this fourth factor, a corporate accused must be able to establish that its fair trial interest has been irremediably prejudiced.

I use the phrase "irremediably prejudiced" because there are some forms of prejudice that a court can remove, notably by making specific orders regarding the conduct of the trial. 21 . Therefore, limiting my consideration to the issue of trial fairness, I must consider what legal costs may have been incurred to this stage of the prosecution, and what impact there may have been on the ability of the defence to answer the charges. Regrettably, I have no evidence whatsoever on these points.

That said, I believe it is not unreasonable for me to make inferences about costs that might normally attach to a prosecution that has involved the extensive bumps on the road to trial as have occurred here. 22 . I note that defence engaged counsel at an early stage, and counsel or counsel`s agent made appearances on each of the nine dates, as required. While it is notable that counsel travels from Sault Ste. Marie, I attach no significance to this, as it is in the hands of the defence to select counsel, based on multiple factors which would have inevitably included consideration for travel-related costs. 23 .

There is nothing to indicate that memories of any defence witnesses may have been impaired by the time to trial. 24 . It is clear that the defence has incurred what must be not insignificant costs associated with filing this motion, however, I have no knowledge of the extent of these costs.

25 . On balance, I find that there is no or limited prejudice to the defence arising from the delay, and the evidence falls dramatically short of establishing that the defendant has been irremediably prejudiced by the delay. Court’s Conclusion 26 . As indicated above, the overtime from the date when the charge was laid until the date of this Motion – a period of just over forty three months is prima facia a concern. As indicated, I find that some portions of that time are inherent to the trial process.

The balance – almost twenty eight months - is attributable to the limitations on institutional resources and conduct of this matter by the Crown. This is unacceptable. 27 . One further matter is worthy of note. This is a regulatory matter, relating to consumer protection. Even the early stages of evidence have revealed that the OMVIC employee who identified to alleged breach was not involved in investigations. Her primary focus was enforcing compliance with the advertising standards established by OMVIC.

To that end, as a matter of course, she normally contacts registrants such as this defendant, when concerns are identified, to address those concerns and mitigate any risk to the consumer/public. Indeed, the evidence is that on the day that the subject matter of these charges was identified, she identified other advertisements of concern and made contact with the defendant to resolve the issue. She advised that with respect to these matters, she did not do so, and, further, was unable to explain why she did not.

Indeed, no one addressed concerns about these particular advertisements until the Information was sworn and the summons served on the defendant corporation, a period of over three months. 28 . There is no evidence (at this stage of the proceedings) as to whether any consumer was adversely affected by the alleged actions of the defendant. 29 . This goes, in my mind, to the extent of public interest that is connected with these charges. 30 . That said, I do not believe that the defendant has been "irremediably prejudiced" in such a way as to warrant the remedy sought – a judicial stay of proceedings. 31 .

As such, I dismiss the Motion and direct that the trial continue to be heard on its merits. Issued at City of Brampton, Ontario, 12 September, 2014 _____________________________ His Worship Donald Dudar Justice of the Peace