R. v. Smith, 2012 ONCJ 324

Citation: R. v. Smith , 2012 ONCJ 324 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — BENEDETTA SMITH Before Regional Senior Justice F.M. Finnestad Heard on April 5, 2012 Reasons for Judgment released on May 22, 2012 P. van den Burgh ....................................................................................................... for the Crown K.

McGuire (not appearing)................................................................................ for Benedetta Smith FINNESTAD R.S.J.: [ 1 ] Benedetta Smith is charged under the Highway Traffic Act with having committed the offence of careless driving on December 23, 2010. A fatality resulted from the collision between the TTC bus she was driving and a truck owned by an electrical company. [ 2 ] The summons given to Ms. Smith was returnable at the Ontario Court of Justice criminal courthouse located at 1000 Finch Avenue West in Toronto.

Summonses for Highway Traffic Act offences alleged to have been committed within the jurisdiction of that court are ordinarily returnable at the provincial offences court located at 2700 Eglinton Avenue West. Mr. van den Bergh for the Crown advised that it has been the practice of the office of the Crown Attorney in Metro North for many years to routinely place careless driving charges involving a fatality before a judge of the Ontario Court of Justice.

He was subsequently able to provide the information that this practice is also followed in Metro East, and that such cases are routinely prosecuted before a justice of the peace in the remaining courthouses in this Region. [ 3 ] During an appearance at the Metro North criminal courthouse it was suggested to counsel that in order for the matter to be heard by a judge of the Ontario Court of Justice rather than a justice of the peace of that same court, an application must be brought before the Regional Senior Justice pursuant to s. 15(4) of the Justices of the Peace Act . [ 4 ] Section 15(4) of the Justices of the Peace Act provides that:

(4) In the case of a trial that would otherwise be held before a justice of the peace, any party may submit a request to the regional senior judge of the Ontario Court of Justice for the region to have the trial held before a judge, and the regional senior judge shall determine whether the matter shall be heard by a judge. [ 5 ] That application was then brought before me on April 5, 2012. Mr. van den Bergh appeared for the Crown and advised that counsel for the defendant would not be appearing, as she had been consulted and supported the Crown application.

A target trial date has already been scheduled for two weeks in the autumn of 2012. [ 6 ] The Crown took the position that it is not necessary to bring this application in order to have the matter tried by a judge of this Court, but that the Crown may elect in which court to bring the matter. Alternatively he argued that an application under s. 15(4) of the Justices of the Peace Act should be granted because the charge being prosecuted involved a fatal accident. [ 7 ] There appears to be some support for the former argument in the Superior Court of Justice decision of Mr. Justice Durno in R. v.

Kinch , [2004] O.J. No. 486 . There the Crown brought a charge of careless driving resulting in a fatality before a judge of the Ontario Court of Justice. On the eve of trial the defendant brought an application to transfer the matter to a court presided over by a justice of the peace.

The presiding judge found that she had authority to proceed under s. 38 of the Courts of Justice Act and ordered the trial to proceed. [ 8 ] On appeal reference was made to the Environmental Protection Act and the Occupational Health and Safety Act , both of which provide for a trial to be held before a judge where the Crown serves notice to that effect. It was argued that there must therefore be an order or some authority for the Crown to commence a Highway Traffic Act prosecution before a judge. Durno J. disagreed and confirmed the right of the Crown to make that election.

He upheld the propriety of the matter having proceeded before the provincial court judge. [ 9 ] The ruling in Kinch does not stand for the proposition that the Crown has an unfettered right to determine in which

court a charge of careless driving will be heard. Durno J. held (at para. 38) that “in the absence of any statutory prohibition the Crownhas the right to select whether to proceed with a charge under the Highway Traffic Act and the Provincial Offences Act before a justice ofthe peace or a provincial court judge, subject to the right of the regional senior justice to assign cases.” (My emphasis.) [10] It is noteworthy that in Kinch no application had been brought before the regional senior justice, nor was the requirementto do so argued.

However, Durno J. himself raised the issue of whether the judge before whom the charge was brought actually hadjurisdiction to “transfer” the trial to a provincial offences court as the original application sought, noting at para. 43 that “matters ofscheduling and assigning cases are within the jurisdiction of the Chief Justice or the Regional Senior Justice, unless those functions havebeen delegated: Courts of Justice Act, s. 76 ”. [11] In the absence of an application to the regional senior justice having been made or argued, the decision in Kinch simplyconfirms that the Crown has the option of selecting trial before a judge or a justice of the peace.

Further it confirms that this right issubject to the discretion of the regional senior justice, and relates to the jurisdiction of that justice under s. 36(2) of the Courts of JusticeAct to direct and supervise the assignment of judicial duties within his or her region. [12] Accordingly I do not accept the submission that the Crown could proceed with the trial before a provincial court judgewithout the need for an application under s. 15(4). [13] The Ontario Court of Justice has exclusive jurisdiction over all prosecutions conducted pursuant to the ProvincialOffences Act for offences under the statutes and regulations of Ontario and municipal by-laws.

The Ontario Court of Justice iscomposed of both judges and justices of the peace, all appointed by the Lieutenant Governor-in-Council. Both have the jurisdiction topreside at trial of provincial offences in the Ontario Court of Justice. [14] It is a long and established practice in this province generally, and in this Region specifically, that trials of provincialoffences are assigned to justices of the peace in the ordinary course. Some exceptions are to be found.

Section 108 of the ProvincialOffences Act provides that only a judge can preside at the trial of a young person charged with breach of probation. A small number ofprovincial statutes provide that the Crown can require trial by a provincial court judge upon filing notice with the clerk. In all othercases, an application can be made by any party before the regional senior justice under s. 15(4) of the Justices of the Peace Act. [15] There is little case law to assist in the determination of such an application.

Some guidance may be found in cases makingreference to s. 15(7) of the Justices of the Peace Act, which makes an exception to the need for this application in the case of thoseprovincial statutes giving the prosecutor the right to require that a provincial court judge be assigned to preside at trial. These include theOccupational Health and Safety Act and the Environmental Protection Act. It does not include the Highway Traffic Act. [16] In R. v. Aurora Quarrying Ltd., [2002] O.J. No 1134, the Crown elected not to file such notice under the OccupationalHealth and Safety Act.

On a re-trial the defendants brought an application before the regional senior justice for an order that the trial,which involved a fatality, be conducted before a judge notwithstanding. Bishop J. of the Ontario Court of Justice commented that thereis no written or oral policy that serious cases involving fatalities should be heard by a judge of the provincial court. He dismissed themotion. An appeal to the Superior Court of Justice was dismissed by Nordheimer J. The Court of Appeal for Ontario at [2003] O.J.

No.1243, upheld both decisions stating in an endorsement that: … the statute recognizes that it may be desirable to have more complex cases heard by a judge. The statute does not, however, requirethis result. The decision as to whether or not to have a trial before a judge as opposed to a justice of the peace, therefore, becomes amatter of discretion. [17] Similarly in two cases heard together in Eton Construction Co. v. Ontario, the Crown had not given notice under theOccupational Health and Safety Act of an intention to have the matters heard before a judge rather than a justice of the peace.

Inprovincial court the defendants’ requests that provincial judges be assigned had been denied. They applied to the Ontario Court (GeneralDivision) for an order pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms that their rights under ss. 7 and 11(

d) of theCharter would be violated by a trial before a justice of the peace. They sought an order that the trials take place before provincial courtjudges. [18] The applicants argued before the Ontario Court (General Division) that justices of the peace, as a class, lacked the judicialtraining and competence required of a judicial officer conducting the trial of a person charged with a serious offence under theOccupational Health and Safety Act.

The dismissal of the application by Borins J. at (1991), (ON SC), 6 O.R. (3d)42, was upheld by the Court of Appeal. [19] The Court of Appeal in its decision at (1996), (ON CA), 28 O.R. (3d) 321, referred to changes in theapplication process, training and ongoing supervision, and education of justices of the peace made over the years. Finlayson J.A.commented (at p. 326), that: … the fact of a co-ordinate jurisdiction does not give rise to the inference that there is a difference in the competence of the two levels ofjudicial office.

Rather it is a recognition that the range of charges triable under the Provincial Offences Act is so vast thatadministratively there must be some mechanism for the orderly distribution of the workload. [20] The Court commented further that: … in allocating cases between the two levels of judicial office, it makes sense to have the more complex cases heard by the justices moresenior in the hierarchy, namely the provincial court judges.

We were advised by counsel for the Crown and for the intervenor that thepractice is to do just that and that, in assessing complexity, an obvious factor would be the significance of the legal component to theissues being determined. [21] The Court of Appeal finally noted in Eton Construction (at p. 326) that:

None of this goes to competence. Rather it is an acknowledgment that our system of justice recognizes a hierarchy of judicial officers before whom certain classes of judicial function are to be performed. The public needs to be assured that those performing their particular function are capable of doing so in a manner consistent with the due administration of justice, not that a judicial officer at a higher level could do it better.

That proposition has received statutory recognition in s. 146 of the Courts of Justice Act . [ 22 ] The Court of Appeal for Ontario declined to lay down guidelines as to when such cases should be tried before provincial court judges as opposed to justices of the peace. [ 23 ] In R. v. Zelinski , [2011] O.J. No. 4024 , the Court of Appeal for Ontario noted at para. 1 that: This court has twice decided that a Justice of the Peace need not be legally trained to conduct a fair trial of provincial offences charges.

The Court also noted, at para . 2, that: The Legislature has further strengthened the Justice of the Peace bench by mandating minimum educational and work experience qualifications creating an independent appointments committee, and requiring continuing education programs for Justices of the Peace. [ 24 ] The case law would appear to reinforce the view that the issue of before which judicial officers such cases are to be heard is in the discretion of the regional senior justice, and that there are no rules with respect to the exercise of that discretion.

The issue is not one of competence and there is no requirement that a trial be conducted before the judicial officer most senior in the hierarchy of those having jurisdiction. [ 25 ] While the higher courts have declined to lay down guidelines, some factors emerge. One is a consideration of the complexity of the legal issues. Other factors are enumerated by Regional Senior Justice Culver in Ontario (Minister of Finance) v. Computer Store – St. Catharines Inc., [2006] O.J. No. 5805 . In dealing with an application by the Crown to have a trial heard before a judge, he said at para. 7: There is nothing in

section 76 of the Courts of Justice Act that provides me with guidance with regard to why a matter that Parliament has decided is within the jurisdiction of either a justice of the peace or judge, should be assigned to a judge, as opposed to a justice of the peace when the usual forum is a justice of the peace court.

I find that in cases where both judicial officers have jurisdiction to hear the matter, that it is only appropriate to assign a matter to a judge, when there are issues of significant precedent value, where a constitutional challenge regarding the validity of legislation is being put forward, or where a broader public interest is engaged. I agree. I would only add to this those cases where there are complex legal arguments to be litigated. [ 26 ] Mr. van den Bergh on behalf of the Crown conceded that there are no complex legal or Charter issues anticipated in the trial of Ms. Smith.

There is no constitutional challenge to the validity of the legislation in question and it was not suggested that the case has the potential for significant precedent value. In requesting that the matter be heard before a judge he referred only to the greater public interest engaged by the fact that the allegations involve a fatality. If this were so, all careless driving cases involving a fatality would be tried before a judge of the Ontario Court of Justice, regardless of their complexity or the presence or absence of any other factors.

There is no statutory or case law support for this proposition and I do not agree. [ 27 ] In my view the lone, although tragic, factor that a fatality is involved does not mandate trial by a judge rather than a justice of the peace. Justices of the peace deal with careless driving charges on a daily basis, and with fatalities under different sections of the Highway Traffic Act and other provincial legislation.

In the absence of any of the other factors that would militate in favour of this matter being heard before a judge rather than a justice of the peace, I am satisfied that this matter should remain in the Provincial Offences Court and trial be held before a justice of the peace. The application under s. 15(4) is dismissed. Released: May 22, 2012 Signed: “Regional Senior Justice Finnestad”