R. v. Galbraith, 2018 ONCJ 138

ONTARIO COURT OF JUSTICE CITATION: R. v.

Galbraith , 2018 ONCJ 138 DATE: 2018 03 05 Cornwall Information: 7575353B ICON: 3960 BETWEEN: HER MAJESTY THE QUEEN — AND — Ashley Galbraith Before Justice of the Peace Claire Winchester Heard on February 7, 2018 Oral Reasons for Judgment February 28, 2018 Written Reasons Released March 5, 2018 Raffael Joanis-Beaulieu.................................................................... counsel for the Crown Ashley Galbraith......................................................................................... on her own behalf JUSTICE OF THE PEACE WINCHESTER: [ 1 ] This is an application by the defendant pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms .

The defendant claims her rights have been violated under sections 7, 11(b), and 11(

d) of the Canadian Charter of Rights & Freedoms as a result of the Crown’s failure to provide disclosure in a timely fashion. Further, in the event the Court finds that that right has been infringed, the defendant seeks the remedy of either a stay of proceedings or an adjournment pursuant to s. 24(1) of the Charter as well as in either instance an order of the payment of costs by the Crown. [ 2 ] On August 7, 2017, Ashley Galbraith was given a

Part 1 Certificate of Offence, s. 128 of the HTA, for speeding 119 km in an 80 km zone. On August 8, 2017, the defendant filed a Notice of Intention to Appear indicating a plea of not guilty and requesting a date for trial. She was invited to and attended the Early Resolution meeting with the Prosecutor on October 10, 2017; she did not accept the proposed resolution. A trial date was set for February 28, 2018.

The total time from the beginning of this matter to the anticipated trial date is 7 months. [ 3 ] A written request for disclosure was sought 4 times by the defendant on September 15, 2017; October 4, 2017; October 10, 2017; and October 31, 2017, and she received assurances from administration that her requests had been forwarded to the Office of the Prosecution. She did not receive an answer to her requests. The Prosecutor stated that the 6 pages of typed disclosure from the OPP officer were received on November 14, 2017.

This disclosure, albeit the pending McNeil Report, was forwarded to the defendant on February 6, 2018. [ 4 ] The prosecution policy concerning the provision of disclosure is usually 2 weeks after receipt of a written request. The delay in providing disclosure in a timely matter to the defendant in this case was due to staffing changes in the Office of the Prosecution. [ 5 ] The defendant claims that the delay in not receiving disclosure promptly and therefore delaying trial has caused her anxiety, stress, and worry.

Further, not having requested an Early Resolution date but having accepted it nonetheless in the hopes of resolution, she claims to have incurred travel costs from her residence in Sault Ste Marie to Cornwall on two occasions, on October 31, 2017, and on

February 7, 2018, for hotel, food, mileage, and lost wages. She also claims to have incurred administration costs for transcripts, courierservices, and the preparation, research, and compilation of the Notice of Constitutional Question submitted on January 22, 2018, for atotal of $4,162.79. [6] The defendant states that her rights have been violated and has invoked sections 7, 11(d), and 11(

b) of the Canadian Charter ofRights and Freedoms. The relevant Charter provisions read as follows:

Section 7: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordancewith the principles of fundamental justice.”

Section 11(d): “Any person charged with an offence has the right to be presumed innocent until proven guilty according to the law in afair and public hearing by an independent and impartial tribunal.”

Section 11(b): “Any person charged with an offence has the right to be tried within a reasonable time.” [7] R. v. Stinchcombe, (SCC), [1991] 3 SCR 326 (SCC), stands for the proposition that there is a general duty ofthe Crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crowndoes not propose to adduce it. This duty is ongoing and continuing.

Issues are whether the failure to disclose is merely a mistake orwhether it amounts to an unacceptable degree of negligence. [8] I have not found in case law any rulings as to a specific length of time in which the prosecution must present disclosure todefendants; the policy is established by the Office of the Prosecution and may vary from region to region. A protocol established in theCornwall POA Prosecutor Office states that disclosure is provided to defendants two weeks after the written receipt for disclosure.

It isup to me, the trier of fact, to determine if the reasons for the delay were due to an unacceptable degree of negligence. [9] In the present matter, the failure to disclose promptly was caused by a mistake emanating from the Office of the Prosecutiondue to staffing issues. The last request for disclosure was received on October 31, 2017, and the disclosure was received in theProsecution Office on November 14, 2017. The prosecution did not note or forward this disclosure in November 2017 but did so afterreceiving the defendant’s Notice of Constitutional Question on February 6, 2018.

The prosecutor’s intention is to provide forthwithadditional disclosure as requested by the defendant. [10] Case law utilizes strong words such as “well beyond inadvertent;” “careless failure;” “recklessness;” “indifference to duty;”“marked and unacceptable departure from usual and reasonable;” “clearly measurable infringement;” “denial of right” to describeunacceptable prosecution conduct or acts. In the present matter, at no time was there a wilful neglect of duty or an unacceptable degree ofnegligence on the part of the prosecutor.

When faced with staffing changes, there is always the hope that transition will occur smoothly. Nevertheless, it is not always possible to gauge accurately the required mentoring and subsequent learning of the parties involved. Mistakes are not unusual in such situations. I find that the prosecution delay in providing disclosure in this matter is due to a mistakeand, therefore that s. 11(

d) of the Charter of Rights and Freedoms is not engaged. Further, s. 7 is not engaged because insufficientprejudice was demonstrated and the late disclosure has not violated the defendant’s right to make full answer and defence. [11] R. v. Jordan, 2016 SCC, states that net delay is calculated from the date of offence to the end of the trial with the calculationand subtraction of the delay attributable to the defence. If the net delay falls below the ceiling of 18 months then the delay ispresumptively reasonable. The Supreme Court of Canada implicitly left open the possibility that a different presumptive ceiling wouldapply in proceedings under

Part 1 of the POA. The prosecution of minor regulatory offences is inherently less time-consuming and thepresumptive ceiling should be commensurately lower at 14 months. [12] To make out a breach of s. 11(b), the defence must prove it took meaningful steps demonstrating a sustained effort to expediteproceedings and that the case took markedly longer than it reasonably should have. In the present case, there is no delay attributable tothe defendant and the defendant took meaningful steps to expedite proceedings. Nevertheless, to date, the time elapsed since the date ofoffence to the proposed date of trial is 7 months, well below the ceiling of 14 or 18 months. I find that s. 11(

b) of the Charter of Rightsand Freedoms is not engaged in this matter. [13] POA courts have the power to order payment of legal costs by the Crown under s. 24(1) as a remedy for Charterbreaches/violations arising from untimely disclosure albeit in limited as well as exceptional or remarkable circumstances (R. v.O’Connor, Court of Appeal) and as the court considers appropriate and just in the circumstances. They are intended as a means ofdisciplining and discouraging flagrant and unjustified incidents of non-disclosure.

The power extends to award costs against the Crownwhere the court is satisfied that the defendant has been misled by certain procedural irregularities as set out in s. 90(1). [14] In POA matters, many of the prosecutions may involve minor regulatory infractions. Claims for Charter relief for regulatoryinfractions usually involve significant fines and the possibility of imprisonment. In R. v. Jedynack, (ON SC), [1994]O.J.

No. 29 (OCJ), Justice Goodearle of the Ontario Court of Justice notes: An order for costs against the Crown under the Charter ofRights and Freedoms should only be made for acts “well beyond inadvertent or careless failure to discharge a duty. Rather the conductwould have to fall within the realm of recklessness, conscious indifference to duty, or whether conscious or otherwise, a marked andunacceptable departure from usual and reasonable standards of prose​cution.

Such conduct must be seen to have resulted in anindisputable and clearly measurable infringement or denial of a right and result in serious prejudice to the accused.” [15] In R. v. Hallstone Products Ltd., [2000] O.J. No. 1051, [2000] O.T.C. 22, Justice LaForme writes: “The Crown’s conduct wasnot underhanded, reckless or abusive. Not every Charter breach entitled the wronged party to costs.” [16] Application for costs has a 3-stage analysis: 1) Was there misconduct on the part of the Crown? If not, 2) Was there an unacceptable degree of negligence on the part of the Crown to disclose?

And, did this failure to disclose constitute a

breach of a Charter right (section 7), i.e. right to make full answer and defence infringed? If so, 3) Was there a causal connection between the misconduct or the unacceptable degree of negligence and the costs claimed by thedefendant? [17] Did negligence cause more court appearances and therefore more costs? In the case of R. v. Ashley Galbraith, I have not foundany negligence on the part of the Prosecutor. The defendant chose to attend the Early Resolution meeting and therefore, there is a totalof two court appearances to date. [18] In The Municipality of York v.

Tomovski, 2017 ONCJ 785, Justice McInnis of the Ontario Court of Justice wrote: “There is nostigma associated with being given a speeding ticket because society does not regard simple speeding as morally blameworthy. Havingto wait 18 months to fight a speeding ticket causes no stigma-related prejudice nor is it any great affront to substantive justice if themotorist avoids paying a fine because the trial took too long to come to court.” In R. v.

Jordan, supra, the Court wrote: “The absence ofprejudice can in no circumstances be used to justify delays after the ceiling has been breached.” In this case, the ceiling of 18 months hasnot been breached and the defendant has not suffered prejudice. [19] “Options of relief include a stay of proceedings or an adjournment. Untimely pre-trial disclosure will rarely merit a stay ofproceedings when the court can protect the fairness of the trial with a disclosure order.” R. v. O’Connor, (SCC), [1995]4 S.C.R. 411 at paragraphs 75-83.

In disclosure matters, it was more appropriate to order disclosure, an adjournment, or a new trial.Finally the majority was of the view that in disclosure matters, the more appropriate and available remedies short of a stay ofproceedings include an order compelling disclosure, an adjournment, and an order for a new trial or a mistrial where applicable. [20] Section 24(1) confers a broad remedial mandate and the widest possible discretion on a court to craft remedies that must beeasily available for violations of Charter rights.

In the present matter, the remedy will be an adjournment to a date for trial and there willbe no order for costs. Released: March 5, 2018 Signed: Justice of the Peace Claire Winchester