Her Majesty the Queen, ) ) Charles Murray, for the Crown, Respondent Respondent ) - v. –, 2019 MBPC 3

Cite: 2019 MBPC 3 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen, ) ) Charles Murray, for the Crown, Respondent Respondent ) - and – ) ) Lisa Eisbrenner, ) ) Christian Sweryda, for the Applicant Applicant ) ) Judgment delivered: ) ) Orally on December 11, 2018 Written Reasons: January 14, 2019 Anne Krahn, A.C.J. Introduction [ 1 ] Lisa Eisbrenner was convicted, as a registered owner of the vehicle, passing a stopped school bus. She and her representative, Mr. Sweryda failed to appear for a Charter motion they filed, seeking to have those charges stayed. The presiding judge dismissed the motion.

She filed a further motion seeking to have the dismissal set aside or to re-activate her original motion. [ 2 ] I dismissed this motion. I found a judge of this Court had already determined he was functus officio when he made a final order on the Charter motion. I am bound by that determination. I found there is no other statutory authority which would allow a review of the dismissal of the motion for failure to appear.

Even if I assumed, without finding, that I had jurisdiction, a full consideration of the history of proceedings, including the arguable merit of the motion, I would not have granted this motion or set aside the dismissal for failure to appear. [ 3 ] During the course of oral argument, Lisa Eisbrenner’s representative sought direction on a further motion he wished to file in the future alleging abuse of process based on Crown conduct. The Crown conduct alleged was failure to agree to reasonable requests for adjournments and steps taken to oppose Mr.

Sweryda acting as a representative for individuals charged with traffic offences in this and other cases. After hearing submissions on this proposed motion, I directed that the Court would not accept such a motion because it had no arguable merit. [ 4 ] I indicated that more fulsome reasons would follow. These are those reasons. History of the Proceedings [ 5 ] The history of these proceedings is convoluted.

It is necessary to understand that history to give context to the issues that arose from those meandering proceedings. [ 6 ] On June 24, 2017 Lisa Eisbrenner was served and charged that on February 13, 2017, being the registered owner of a vehicle, her vehicle passed a stopped school bus. She says in an affidavit that after she received this ticket she engaged Mr. Christian Sweryda, a family friend to represent her. Ms. Eisbrenner says in an affidavit that he instructed her to request disclosure and dispute the offence. [ 7 ] Mr.

James Wall, an articling student with the Crown from May 2017 to June 2018 was assigned to prosecute the trial. His affidavit explains that there is a computer database system that is used to track offence notices. This system contains information that on September 7, 2017, Ms. Eisbrenner called and said she had lost her ticket and would be attending court to get another copy before the due date on the offence notice, which was September 12, 2017. On September 11, 2017 her matter was remanded to September 18, 2017 for a Crown appointment.

On September 18, 2017 she was provided with another copy of the front and back of the common offence notice which includes the officer’s notes. She set a trial date of May 22, 2018. Ms. Eisbrenner’s contact phone number was recorded by the court staff at that time. [ 8 ] I note there was no indication in the affidavits filed by the Crown or Ms. Eisbrenner that it was communicated to the Crown in September 2017 that Ms. Eisbrenner intended to be represented by Mr. Sweryda.

[ 9 ] Mr. Wall assumed conduct of the file on February 23, 2018. On March 1 st , 2018 he requested disclosure from the Winnipeg Police Service of the witness information and incident report. He received that disclosure in mid April. [ 10 ] On May 1, 2018, Ms. Eisbrenner sent an email requesting disclosure. On May 2, 2018 the Crown provided the additional disclosure. The additional disclosure amounts to a half sheet of information filled in by the bus driver, much of it is fill-in-the-blank or circling of words describing the vehicle and road conditions.

The “narrative” consists of the following words: “Entered the bus loop and drove to the front of bus. Stop sign had been active for at least 2 minutes. Vehicle drove through not caring.” [ 11 ] On May 2, 2018 Ms. Eisbrenner attests that she forwarded the disclosure to Mr. Sweryda. Ms. Eisbrenner says this is when Mr. Sweryda realized the trial was set for May 22, 2018. [ 12 ] On May 2, 2018, Mr. Sweryda contacted the Crown to say that he would be representing Ms. Eisbrenner. He asked about the type of authorization that would be required to allow him to speak to the Crown on her behalf. Mr.

Wall responded that he would need signed documentation to discuss the matter with Mr. Sweryda. Wall pointed out the Legal Professions Act was clear that Mr. Sweryda would not be allowed to represent her but “the Provincial Offences Act does have a

section providing the powers to a justice to determine whether or not to allow it.” [ 13 ] Ms. Eisbrenner says in her affidavit that Mr. Sweryda realized a Charter motion might be a possibility on May 12, 2018 given the delay between the offence and the date she was served with notice of the offence – four months. [ 14 ] On May 12, 2018, Mr. Sweryda advised the Crown he would be requesting an adjournment. He argued that the delayed disclosure had not allowed him time to prepare a defence. The Crown was opposed to his request for an adjournment. [ 15 ] On May 21, 2018, a Monday, Mr.

Sweryda advised the Crown by email that he would be requesting an adjournment to file a Charter motion. Mr. Sweryda acknowledged that he could not file within the time frames set out in the Provincial Court’s Practice Directives - 30 days in advance of trial. In that communication he said that while he had planned to file it on Tuesday, now that will not be possible and he planned to file by the “end of the week, at the latest”. The end of the week would have been May 25 th , 2018. [ 16 ] On the day of trial, the Crown learned of a scheduling conflict with their civilian witness, the bus driver.

The Crown then changed their position and notified both Mr. Sweryda and Ms. Eisbrenner by email that the Crown would now consent to the requested adjournment. If they did not agree to the adjournment, the Crown was prepared to direct the witness to attend court. The Crown also corrected Ms. Eisbrenner’s belief that the trial was set for 7:00 p.m., letting her know it was set for 1:30 p.m. Ms. Eisbrenner responded that she would agree to the adjournment. On May 22, 2018, Ms. Eisbrenner was also advised that she should plan to be personally present on her trial date.

The Crown offered numerous dates between June 28 th and July 30 th , 2018. The Crown did not receive a response to their email offering new dates, so the matter was re-set for trial on June 28, 2018 at 1:30 p.m. [ 17 ] Mr. Sweryda did not file his Charter motion by May 25, 2018 as he had proposed. He filed it two days before the next trial date on June 26, 2018. The Charter motion was returnable on the same day and time as the trial of the matter but in a different courtroom. [ 18 ] Mr.

Sweryda thus had the trial proceeding in traffic court at 373 Broadway and a motion related to that trial making its first appearance in a motions’ court at 408 York. Ms. Eisbrenner did not attend either appearance. However her father, Glenn Eisbrenner attended the trial, asked to appear as her agent and requested an adjournment of the trial because Mr. Sweryda was in another courtroom. Mr. Eisbrenner also advised the justice that he had another daughter who was a lawyer and she might be able to represent Ms. Lisa Eisbrenner, who wanted representation but this too would necessitate an adjournment.

Judicial Justice of the Peace (JJP) Zallack stood the matter down while she dealt with other traffic trials, to allow Mr. Sweryda to attend. [ 19 ] Meanwhile, Mr. Sweryda appeared before Judge Sandhu in a motions’ court. In that appearance, the Crown raised the issue of Mr. Sweryda’s ability to act. Judge Sandhu granted him permission to act as a representative for Ms. Eisbrenner. Judge Sandhu then summarily dismissed the Charter motion for failure to comply with the Practice Directives but without prejudice to file again after the trial had been heard and an adjudication made on the facts.

Judge Sandhu noted that he did not want the trial delayed because of the late filing of the motion. [ 20 ] The trial proceeded before JJP Zallack. At the conclusion of the trial, contrary to the direction from Judge Sandhu, Mr. Sweryda argued the abuse of process motion based on pre-charge delay and trial fairness. Mr. Sweryda characterized it as a “common law” abuse of process motion rather than a Charter motion and referred to many of the cases that had been enclosed with the motion that had been summarily dismissed by Judge Sandhu a short time before.

None of these cases had been provided to JJP Zallack in advance. Mr. Sweryda’s submission to the JJP included a recognition that the arguments were identical, “It would have been a Charter motion had I been given the chance to file it…” (June 28, 2018 transcript page 55). It appears he then tried to file the materials that had just been dismissed by Judge Sandhu in front of the JJP. This resulted in her reserving her decision on the trial and whether she should accept the documents Mr. Sweryda was now trying to file. [ 21 ] Mr.

Sweryda then filed the same abuse of process motion on July 10, 2018, contrary to the direction by Judge Sandhu that he should wait until there had been adjudication on the Highway Traffic Act offence notice. [ 22 ] On the first appearance on this motion, July 16, 2018, the matter had to be further adjourned by Judge Harvey to determine what had transpired to date. On July 27, 2018, Judge Harvey directed that the trial would proceed to decision by JJP Zallack on the merits, and no arguments regarding delay or abuse of process would be considered.

Once that decision was made, if necessary, the Charter motion would be set down to be heard by a Provincial Court Judge. [ 23 ] On September 10, 2018, JJP Zallack gave her oral reasons and found the Crown had proven the case beyond a reasonable doubt. Mr. Sweryda was late in attending court to receive the decision. The Applicant, Lisa Eisbrenner, did not appear but her father was present. Her father asked for permission to use the Crown’s phone to contact Mr. Sweryda before court commenced.

[24] Around 9:15 a.m. Mr. Sweryda arrived. The Crown Attorney, Ms. Yan, had a list of available dates for the Charter motion. She attests that they discussed setting the Charter motion for September 26 at 10:00 a.m. She wrote down Mr. Sweryda’s email addressso she could send him confirmation of the date and circled the agreed on time and date on her list of dates. Ms. Yan confirmed this dateand time with Mr. Sweryda by email the next day. Mr. Sweryda replied to her email, asking if the Crown intended to file a brief. OnSeptember 14, Ms. Yan emailed both Ms. Eisbrenner and Mr.

Sweryda inquiring about manner of service. The subject line of this emailalso contained the date and time (September 26, 2018, 10:00 a.m.) of the hearing. [25] On September 26, 2018, Mr. Sweryda and Ms. Eisbrenner both failed to appear for the hearing of the Charter motion. JudgeMoar dismissed the motion in light of the non-appearance commenting it was really a dismissal for want of prosecution. [26] A sentencing date for the conviction was set for October 22, 2018.

This sentencing date was adjourned sine die, when Mr.Sweryda filed a third motion seeking relief from the dismissal by Judge Moar of his Charter argument. [27] The parties attempted to set the motion in front of Judge Moar who refused to hear the motion and declared himself functusofficio of the matter. [28] On October 5, 2018, Mr. Sweryda filed a “Notice of Application” seeking “setting aside of

summary dismissal judgment forcase to be heard on its merits.” This application was filed to first appear on the October 18, 2018 motions’ list. Prior to the firstappearance, Mr. Sweryda contacted the Crown and asked the matter be brought forward to October 16, 2018, because he was now notavailable for October 18 as he had a law school class at that time. This was done. [29] On October 16, 2018, Mr. Murray informed the Court the Crown’s position was that there was no jurisdiction for the Court tohear Mr. Sweryda’s application.

The hearing date of December 11, 2018 was set with counsel agreeing the Court would hear thesubmissions on whether it had jurisdiction to entertain this new application, and assuming jurisdiction, would also be prepared to arguethe Charter motion on its merits. [30] On the date set for hearing this application, Mr. Sweryda advised that due to a death in his family the preceding weekend, hewould not be prepared to argue the substantive motion but was prepared to argue the jurisdictional motion. Ultimately, he did makelengthy and fulsome submissions on the merits of the Charter motion.

Issues [31] The issues for this court to decide are: 1.) Does the Court have jurisdiction to hear this application? This issue will be broken down into the following questions: Does the fact that there were different judicial officers involved mean that the Court is not yet functus? Is the Court functus officio in respect of the motion? Do the Practice Directives provide authority to re-activate the motion which was dismissed by Judge Moar?

Is there a statutory provision which would authorize me to reconsider a matter already dismissed by another Judge of the same Court? 2.) Assuming the Court has jurisdiction, should the Court exercise its discretion to allow the substantive motion to proceed? Was the Applicant advised of the date and time of the hearing? Did any exceptional circumstance prevent the Applicant’s appearance? Does the Applicant’s conduct preclude relief? Did the underlying motion have merit? Is refusing relief consistent with a fair and timely resolution?

Does the fact that there were different judicial officers involved mean that the Court is not yet functus? [32] A preliminary issue that needs to be addressed is whether the fact that a Judicial Justice of the Peace (“JJP”) heard the trial anda judge was to hear the Charter motion impacts the final determination of whether the Court is functus. [33] Mr. Sweryda argues that the Provincial Court’s practice of having JJPs preside over traffic trials and a provincial court judgepreside over any Charter motion filed creates a unique context such that the Court is not yet functus. Ordinarily, Mr.

Sweryda argues,the trial judge would hear both the trial and any accompanying Charter motions. Since that is not the practice in Manitoba, the Court is“going off script” and therefore is not yet functus of the Charter motion. [34] The Provincial Court of Manitoba is composed of two sets of judicial officers: provincial court judges and judicial justices ofthe peace. Both are imbued with judicial independence and appointed pursuant to the Provincial Court Act.

The jurisdiction of aprovincial court judge is set out in s. 7 of the Provincial Court Act and is broader than the jurisdiction of JJPs which is set out in s.

Section 47 specifically sets out that JJPs have jurisdiction to preside over trials related to the Provincial Offences Act. [35] It is now well accepted that all Charter motions should be heard by the trial judge. The Ontario Court of Appeal explained inR. v. Zevallos that many times the issues overlap between, for example, a finding of an unreasonable search thatbreaches s. 8 and whether such a breach should lead to the exclusion of evidence. It is the desire to be efficient and avoid duplicativeevidence that in most cases is facilitated by the same judge hearing all matters.

[36] The Charter does not set out a procedure that must be followed when violations of its provisions are alleged. A review of earlycases demonstrates much energy was devoted to what the appropriate procedure should be, R. v. Mills, [1986] 1 S.C.R. 863, (SCC), R. v. Rahey, [1987] 1 S.C.R. 588, (SCC), R. v. Kutynec (ON CA). In Kutynec, the Courtemphasized that flexibility and the discretion of the trial judge should resolve most issues. The Court was reluctant to “propound adetailed judge-made rule to cover all Charter motions.” [37] R. v. Smith (SCC), 1989 2 SCR 1120, provides an illustration of such flexibility.

In Smith the accused wascharged with theft over $1000 and had a preliminary inquiry set in Provincial Court. Before the preliminary inquiry date, he filed a delaymotion in the Court of Queen’s Bench where the judge stayed the charges based on unreasonable delay. The preliminary inquiry had notyet completed. At paragraph 19 the Court affirms its earlier ruling in Mills and Rahey, that ordinarily it should be the trial court whichhears a delay motion because the trial court can receive evidence in the form of affidavits, viva voce evidence and is best placed toreceive that evidence.

At paragraph 22 the Court said “where practicable trial courts should deal with allegations of s. 11(

b) violation”(emphasis added) but the Court still went on to find that in the circumstances of that case the exercise of the superior court’s discretionwas appropriate. The case is an example of where the Charter argument was heard by a court, other than the trial court. [38] It is practical considerations that have lead to the practice where judges in Manitoba will hear Charter arguments related toHighway Traffic Act trials and if it is more efficient to have the JJP hear the traffic trial, leave the traffic trial to be presided over by aJJP. There can be 10 to 30 traffic trials set before a JJP.

A trial docket such as that is a poor place to hear a Charter motion related toone of the trials. The volume of materials filed at the last minute in this case would demonstrate how as a practical matter it is not fittingfor the usual traffic court. The almost three hours of oral submissions I heard for this application are not fitting for the ordinary trafficcourt. [39] The JJPs do not preside or have a motions’ court where they will regularly sit. There is a motions’ court that sits everyday inWinnipeg, presided over by a Judge. Both JJPs and Judges are members of a busy trial court.

The two sets of judicial officers haveexpertise in different areas. JJPs have special expertise involving the Highway Traffic Act, amongst numerous other pieces of Provinciallegislation. Judges have greater expertise and familiarity with the Charter and Criminal Code provisions. The Charter arguments intraffic trials can often be neatly separated from the trial evidence so that there is not unnecessary repetition of evidence at the stage ofconsidering a Charter argument and at the stage of considering whether the Crown has proven the traffic offence.

This manner ofproceeding has sought to create efficiency, simplicity and yet ensure allegations that an individual’s Charter rights have been breachedare fully considered. Further, a Charter argument may be unnecessary if there is no finding of guilt on the traffic offence. [40] So while I recognize that this is different from standard criminal practice, this does not mean that decisions made by a Judge orJJP for that matter do not become a final determination. Is the Court functus officio in respect of the motion? [41] In Doucet-Boudreau v.

Nova Scotia (Minister of Education) [2003] 3 SCR 3, 2003 SCC 62 , the court relied on thefollowing definition of this doctrine from The Oxford Companion to Law (1980): Functus officio (having performed his function). Used of an agent who has performed his task and exhausted his authority of anarbitrator or judge to whom further resort is incompetent, his function being exhausted. [42] In Chandler v.

Alberta Association of Architects, Justice Sopinka explained the purpose of the doctrine: Functus Officio The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In reSt. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to theappellate division.

The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to twoexceptions: 1.where there had been a slip in drawing it up, and, 2.where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. v. J. O. Ross Engineering Corp., (SCC), [1934] S.C.R. 186. [43] The Supreme Court of Canada explained: It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal (see alsoReekie v. Messervey, (SCC), [1990] 1 S.C.R. 219 at pp. 222-23).

This makes sense: if a court could continually hearapplications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launchan appeal (Doucet-Boudreau at para. 79). [44] It is clear that the doctrine is meant to provide for finality, prevent unnecessary and duplicitous proceedings and provide aproper basis for appellate review.

[ 45 ] It is clear that Judge Moar, a member of the Court on which I sit, has already determined that he made a final determination and the matter could not be returned to appear in front of him. The Charter motion was one on which Ms. Eisbrenner, represented by Mr. Sweryda, carried the burden to establish the alleged breach. [ 46 ] I do not accept Mr. Sweryda’s argument that Judge Moar could not be functus because a final sentence on the traffic offence had not yet been imposed in this case. The sentencing of Ms. Eisbrenner was being delayed until the Charter motion was heard.

A court may well make more than one decision on a Charter motion prior to the imposition of sentence. Mr. Sweryda’s argument would lead to this Court being required to hear multiple, identical motions for Charter relief because a previous decision on the same motion was not a final decision, therefore the Court was not yet functus . This is inconsistent with all practice in criminal proceedings and inconsistent with the practice directives which seek to ensure simple, effective and efficient management of contested matters. [ 47 ] Principles of stare decisis and judicial comity were helpfully reviewed in R. v.

Kehler 2009 MBPC 29 . These too are principles that support finality and consistency in decisions. Judicial comity requires that I follow the conclusion reached by Judge Moar that he is functus officio . Do the Practice Directives provide authority to re-activate the motion which was dismissed by Judge Moar? [ 48 ] Ms. Eisbrenner’s representative relies on Practice Directive 6.10(3) which provides: A

summary dismissal of an application pursuant to this Practice Directive shall not preclude a trial judge from hearing a renewed application seeking the same or substantially similar relief where the trial judge is satisfied to do so would be in the interests of justice. [ 49 ] However, this is a mischaracterization of the decision made by Judge Moar. Practice Directive 6.10(1) deals specifically with dismissals for a failure to appear. This directive provides: An applicant who fails to appear at the hearing of an application shall be deemed to have abandoned the application, and the application shall be dismissed, unless the court orders otherwise. [ 50 ]

Section 6.10(2) is entitled “Summary dismissal of application”. It provides that where a respondent demonstrates that an application is frivolous, vexatious or does not show a reasonable basis it can be summarily dismissed. This is not what happened before Judge Moar. [ 51 ] I have listened to the proceedings before Judge Moar. The Crown Attorney attempted to contact Ms. Eisbrenner when she or her representative did not appear. After a short recess, the Court was advised that the Crown was able to reach Ms. Eisbrenner. The Crown Attorney advised the court that Ms.

Eisbrenner had “no idea her motion was appearing today, although she indicates that Mr. Sweryda is her authorized representative and he was handling this. And she has left it in his hands essentially. I let her know I would be conveying that information to [the Court].” After paging Mr. Sweryda another time, the Court said, with no information to indicate a longer wait was warranted such as an “accident or something along those lines”, the motion would be dismissed. [ 52 ] In the materials and in submissions before me, Mr. Sweryda faults the Crown for failing to contact him directly. The Crown Attorney, Mr.

Murray, explained that he called the number that was on the front of the filed materials. I note that the Application filed before the Court contains Lisa Eisbrenner’s name, address, a phone number and an email address with Ms. Eisbrenner’s name in it. I conclude from this identifying information that the phone number of Lisa Eisbrenner was the one on the materials. The affidavits filed by the Crown Attorneys that have had conduct of this matter reveal that communication with Mr. Sweryda was by email.

In those circumstances, I ascribe no fault to the Crown for calling the number on the filed materials and reaching Ms. Lisa Eisbrenner. [ 53 ] Clearly, the Charter motion, on which the Applicant bore the burden, was dismissed when no one appeared to argue the matter. This was not a

summary dismissal for an application which was frivolous, vexatious or disclosed no reasonable basis. Therefore 6.10(3) does not provide a basis for me to allow the Applicant’s current application to hear the original Charter motion. [ 54 ] I do not accept Mr. Sweryda’s argument that Practice Directive 6.10 should be read as a whole, such that 6.10(3) applies to a dismissal made pursuant to 6.10(1). A plain reading of those sections does not allow for such an

interpretation. [ 55 ] I will note parenthetically that there is no provision in the Practice Directives that speaks to a review process for applications which have been dismissed when the applicant fails to appear.

I agree with the Crown’s submission that “Given the careful expression of the Court’s case management powers, one would think that a review mechanism for the type of decision in question would have been set out, if it was within the Court’s jurisdiction and desirable in the context of contested applications.” (Motion Brief of the Attorney General of Manitoba, para. 42) Is there a statutory provision which would authorize me to reconsider a matter already dismissed by another Judge of the same Court? [ 56 ] The Practice Directives are detailed directions as to how matters ought to proceed before the Provincial Court, they are not statutory authority conferring jurisdiction on the Provincial Court.

The Provincial Court is a statutory court and its jurisdiction must be set out in legislation or be “necessarily incidental” to the carrying out of those functions that are set out by statute: Hudson Bay Mining and Smelting Co. Ltd. v. The Honourable Judge R. G. Cummings , 2004 MBCA 182 at paras. 23 , 25, 28. [ 57 ] Mr. Sweryda argues s. 58 of the Provincial Offences Act (POA ) provides me with the authority to re-animate and hear his dismissed motion.

Section 58 of the POA is entitled “Powers of a justice.” The POA defines a “justice” as a provincial court judge or a justice of the peace of the Provincial Court of Manitoba. The beginning words of this

section are broadly worded: 58 Unless otherwise provided, in a hearing or other proceeding under this Act, the justice may do anything that he or she considers necessary or desirable for the purpose of resolving the matter in a fair and timely way, including the following…”

A list of various orders that are generally made during a trial or prior to trial is then set out. The only one which is tangentially relevant isparagraph 14: Dismissal or adjournment if prosecutor fails to appear – If the defendant appears at a hearing and the prosecutor does not, the justicemay dismiss the charge or may adjourn the hearing to another time. There is no specific provision in s. 58 that deals with the failure of an accused or their representative failing to appear for a motion theyhave scheduled. I note as well that there is no specific paragraph in this

section that deals with a review of dismissal when a prosecutorfails to appear. [58] It is important, to remember the opening words of s. 58, “Unless otherwise provided, . . . ” These words qualify the remainingwords of that paragraph. There are other provisions that deal with appeals: Part B, including s. 79 and s. 82. Therefore, reading the POAas a whole, the appeal

section does otherwise provide a mechanism whereby an appeal against conviction or any other order made by ajustice can be made to the Court of Queen’s Bench. [59] Modern rules of statutory

interpretation require that the words of the Act must be read in their entire context, and in theirgrammatical and ordinary sense, harmoniously with the statute itself. I have concluded that s. 58 does not allow for a review of a finalorder on a Charter motion. The POA has specific appeal sections that apply. The appeal of Judge Moar’s decision must be made to theCourt of Queen’s Bench. [60] I am further supported in this conclusion because there is explicit recognition in the POA of one scenario where the Court canmove to set aside a previous order, default convictions.

When a person served with a ticket fails to appear at a hearing they haverequested, the justice can enter a default conviction, s. 19(2) POA. A procedure is set out in s. 21 of the POA which allows a justice toset aside the default conviction if satisfied that: (

a) through no fault of the person, they did not receive the ticket or a notice required to be provided under this Part; or (

b) exceptional circumstances prevented the person from dealing with the ticket, such as an extended absence from Manitoba or seriousmedical condition. (POA s. 21(4)) When explicit authority grants jurisdiction for a re-hearing for default convictions, but is otherwise silent on a re-hearing for a dismissalof a Charter motion, jurisdiction cannot be gleaned from the general provisions of s. 58. If such a review hearing was contemplated, itwould have been explicitly set out in the POA. [61] Mr. Sweryda relied on a decision of the Court of Queen’s Bench, Lariviere v.

Bertrand 2006 MBQB 104 to support hisargument that his Charter motion should be re-activated. While he admits that decision is based on that Court’s inherent jurisdiction, heargues by analogy, this Court should adopt that a case should be heard on its merits. He then ties his argument to the Provincial CourtPractice Directives which stipulate in s. 1.04 “Where matters are not provided for in these Practice Directives, the practice shall bedetermined by analogy to them.” I have already found above, the Practice Directives cannot confer jurisdiction on the Court. Thefactual and legal context of Lariviere v.

Bertrand, a decision of a superior court which relies on inherent jurisdiction and an

interpretationof that Court’s rules, do not assist in conferring jurisdiction on a statutory court. I note such an argument was rejected by anotherprovincial court in Khaper v. Khaper, at para. 19. [62] I find there is no statutory authority which would confer jurisdiction on me to re-open or re-activate the motion that wasdismissed by Judge Moar.

Should the Dismissal of the Applicant’s Charter Motion be Set Aside? [63] In the event that I am wrong in the preceding conclusions, and I do in fact have jurisdiction to consider the Applicant’s motionto set aside the dismissal by Judge Moar, let me consider whether that decision should be set aside based on the entire circumstances ofthis case.

The Crown proposed the following questions be asked to determine whether relief should be granted: a.) Was the Applicant advised of the date and time of the hearing? b.) Did any exceptional circumstance prevent the Applicant’s appearance? c.) Does the Applicant’s conduct preclude relief? d.) Did the underlying motion have merit? e.) Is refusing relief consistent with a fair and timely resolution?

I accept that these questions are analogous to the powers set out in the POA when a default conviction should be set aside and additionalcontextual factors relevant in this case. a.) Was the Applicant advised of the date and time of the hearing? [64] Mr. Sweryda relies on the affidavits sworn by Mr. Glenn Eisbrenner and Ms. Lisa Eisbrenner which refer to Mr. Sweryda’sbelief that the Charter motion had been set for 2:00 p.m. on September 26, 2018. Mr. Eisbrenner provides information that Mr.

Swerydabelieves he would not have set the date for a time when he had a class. [65] The Crown filed the affidavit of Julie Yan, the Crown with conduct of the file in September 2018. She made a note on her listof available dates, the agreed upon date and time for the hearing of the Charter motion. Her note from the day includes an email addressfor Mr. Sweryda which she recorded in order to be able to confirm the hearing date. Ms. Yan almost immediately followed up with thetrial coordinator seeking to confirm the agreed upon hearing date. She then followed up with an email the next day to Mr. Sweryda

confirming the time, date and courtroom of the hearing. She asked him to confirm receipt of the email. Mr. Sweryda responded to that email the same day and asked if the Crown would be filing a brief and when he could expect it. Ms. Yan sent another email on September 14 th to Lisa Eisbrenner and copied Mr. Sweryda which again referred to the hearing date of September 26 at 10:00 a.m. and the courtroom in the subject line. The Crown was seeking feedback on what method of service of the Crown’s brief was acceptable to the parties. She received a reply to this email from Ms.

Eisbrenner after the motion was dismissed. This confirms that Ms. Eisbrenner had received the email. In Ms. Eisbrenner’s response she was indignant that the motion had been dismissed. She clearly missed the date and time of the hearing contained in the subject line of the email. [ 66 ] During submissions before me, Mr. Sweryda acknowledged that he missed the time as recorded in those emails. He said it was an oversight on his part. He says he did not read the email but just used it as a way to contact the Crown on his question of whether they would be filing a brief.

I accept the evidence presented by the Crown that the date and time agreed to was 10:00 a.m. on September 26, 2018. I find this evidence credible and reliable based on the notes made at the time by Ms. Yan and her immediate follow-up confirming the date and time. [ 67 ] It is not the first time in these proceedings that Ms. Eisbrenner or Mr. Sweryda made a mistake as to time or date of a court appearance. Ms. Eisbrenner emailed the Crown on the morning of the first date set for trial, May 22, 2018, indicating her belief it was set for 7:00 p.m. The Crown responded to her email correcting the time. [ 68 ] Mr.

Sweryda was late attending court on the date set for the receipt of JJP Zallack’s decision on whether the traffic offence had been proven. In his submissions before me, Mr. Sweryda explained he was there, there had been a last minute change in courtrooms, so it took some time for him to wait in line on the main floor and find out in which courtroom the matter was being heard. When I questioned him about the fact that Glenn Eisbrenner was present for the decision and in the correct courtroom, trying to contact Mr. Sweryda by using the Crown’s phone, as set out in Ms.

Yan’s affidavit, he explained that he arrived right at 9:00 a.m. [ 69 ] Finally the first returnable date for this motion was set for Thursday, October 18, 2018. Mr. Sweryda contacted the Crown to request a different date as he had a class at this time. Mr. Sweryda’s explanation in oral submissions before me was that there had been miscommunication between himself and Mr. Eisbrenner. Mr. Sweryda explained since he was out of town, he had asked Mr. Eisbrenner to file the motion and specifically directed him he was not available on Thursday afternoons. Somehow, this was misunderstood by Mr. Eisbrenner so when Mr.

Sweryda realized the mistake, he sought to change the date. This mistake affects in a negative way, my assessment of the reliability of assertions made by Glenn Eisbrenner that to his “best recollection” the time agreed was 2:00 p.m. for the Charter motion. [ 70 ] These three instances, even accepting the explanations provided by Mr. Sweryda, indicate that there have been other instances where mistakes or miscommunication have resulted in mistakes as to court time or setting a conflicting date. [ 71 ] I conclude that the date was clearly set as agreed to between Ms. Yan and Mr.

Sweryda that the Charter motion would be heard on September 26, 2018 at 10:00 a.m. It is clear that this was communicated to both Lisa Eisbrenner and her representative, Mr. Sweryda. b.) Did any exceptional circumstance prevent the Applicant’s appearance? [ 72 ] No exceptional circumstances prevented Lisa Eisbrenner or Mr. Sweryda from appearing on the hearing date. The affidavits of Lisa Eisbrenner demonstrate that she never planned to attend, leaving it entirely in the hands of her “assigned representative.” Mr. Sweryda in submissions before me indicated that he had a Torts class.

It is clear there were no exceptional circumstances such as an accident or medical emergency that prevented Mr. Sweryda’s appearance in court. c.) Does the Applicant’s conduct preclude relief? [ 73 ] The Crown argued that Lisa Eisbrenner’s conduct and that of her representative, Mr. Sweryda, in failing to comply with the Practice Directives and other directives of the Court weigh against the relief that is now sought. The Crown argues that duplicative, untimely motions are an abuse of process.

Putting the same argument, in the same case, between two different adjudicators is an abuse of process. [ 74 ] The Crown points to the following: 1.) The Charter motion was filed two days before her June 28 trial date, despite the fact that the May 22, 2018 trial was adjourned for the purpose of filing the Charter motion in compliance with the Practice Directives; 2.) The first returnable date for the Charter motion was June 28 th , the same day as her traffic offence trial; 3.) Ms. Eisbrenner did not appear at either hearing on June 28 th and left it to her chosen representative. Mr.

Sweryda chose to attend at the motion. The trial of her matter was delayed and fortunately, Mr. Sweryda returned in time to have the trial proceed. 4.) Judge Sandhu summarily dismissed the motion, and directed her to file again, after her trial was decided, if the results were not in her favour. Instead of following these directions, Mr.

Sweryda attended before the JJP and in closing submissions sought to file the case law and materials that had just been dismissed by Judge Sandhu. 5.) While JJP Zallack’s decision on the traffic offence was under reserve, he filed the same motion again, contrary to Judge Sandhu’s clear direction. [ 75 ] Mr. Sweryda responds that it is the Crown’s obstructionist positions that have contributed in equal measure to the history of these proceedings. He blames the Crown for not agreeing to his original request for an adjournment of the May 22, 2018 trial.

He says if they had agreed to that reasonable request based on the lateness of their disclosure of the bus driver’s notes, he could have spent the time researching and preparing his Charter motion. He blames the Crown for opposing his representation of Lisa Eisbrenner on June 6,

2018, on an unrelated traffic offence which distracted him and occupied his time so that he filed the Charter motion late. [76] I do not accept the position advocated by Mr. Sweryda. Mr. Sweryda has taken the position that he has spent years defendingpeople of traffic offences with some considerable success. This was filed in his own affidavit (I do not comment on the propriety of arepresentative filing his own affidavit material on a motion where he is appearing as the representative) and other materials on theCharter motion filed in July and heard by Judge Harvey.

He has said the same thing in submissions before me. I find that Mr. Swerydahas a very good understanding of the Practice Directives. He had this knowledge when he was first engaged by and agreed to representLisa Eisbrenner in June to September 2017. He decided to leave securing disclosure to Ms. Eisbrenner. I am satisfied based on LisaEisbrenner’s July 24, 2018 affidavit that he did not begin to prepare for her trial until May of 2018. Mr. Sweryda has argued that therewas little he could do until full disclosure was provided. I do not agree.

The primary argument he wished to advance was that pre-charge delay was sufficient to compromise the fairness of the trial contravening Ms. Eisbrenner’s s. 11(

d) Charter rights. Ms.Eisbrenner had been provided with a copy of the offence notice and officer’s notes in September 2017. The bus driver’s notes are notmaterial to that Charter argument. The delay in serving Ms. Eisbrenner was said to impair her ability to defend herself because shecould not recall who was driving. All of this was known, at the time of service of the offence notice. [77] Mr. Sweryda, as Ms. Eisbrenner’s chosen representative bore the responsibility to file his Charter motion in a timely manner. Mr.

Sweryda clearly knew what the Practice Directives required and still failed to file the motion in a timely way, prior to May 2018 andfailed to follow his own undertaking to file by May 25, 2018 as he told the Crown he would when he wanted an adjournment of the May22 trial. [78] Further, Lisa Eisbrenner and Mr. Sweryda had already been accommodated by the decision of Judge Sandhu, repeated by JudgeHarvey, directing even though the Charter motion had been filed late, in contravention of the Practice Directives, that it would be heard. [79] Ms.

Eisbrenner now seeks to be relieved of the harshness of the dismissal for failure to appear. However, in light of her and herrepresentative’s conduct, it weighs against the relief she now seeks. d.) Did the underlying motion have merit? [80] In the substantive Charter motion, Ms. Eisbrenner alleged that: 1.) the four month pre-charge delay in serving her with the offence notice had compromised her ability to have a fair trial because shecould not now remember who was driving her car. She did know she was not driving because she was at work at the time; 2.) this was compounded by the fact that

section 229 is on “shaky constitutional ground”, citing decisions from other provinces and onecase from Manitoba that was overturned by the Court of Appeal which have found

section 229 unconstitutional; 3.) the delay in providing disclosure; amounted to a breach of her 11(

b) right to a fair trial or in the alternative, an abuse of process under the common law abuse of processdoctrine. [81] The original application and accompanying legal brief did not seek to have s. 229 declared unconstitutional. A notice for such achallenge would ordinarily be required pursuant to The Constitutional Questions Act, s. 7(2). In the Crown’s response to Mr. Sweryda’soriginal application, they sought to have any constitutional challenge summarily dismissed for lack of notice. Before me Mr. Swerydaadmitted that failing to file the notice was an oversight on his part. Mr.

Sweryda’s submission further evolved before me. He indicatedthat he had intended to argue before Judge Moar that s. 229 of the Highway Traffic Act is unconstitutional. I understand this is based onhis argument that the registered owner is morally innocent and this vicarious liability is not consistent with s. 11(

d) of the Charter whichguarantees the presumption of innocence until proven guilty in a fair and public hearing. [82] Mr. Sweryda argued that there was merit to his Charter motion because the Crown had sought

summary dismissal beforeJudge Sandhu and Judge Harvey, and they had allowed the motion to continue. A review of both decisions of those judges reveals thatthere is no finding that there was arguable merit to the motion. Judges Sandhu and Harvey addressed only the procedure which wouldoccur in terms of the timing of the trial itself and then the subsequent filing of the motion. Those rulings do not support Mr. Sweryda’sargument. The challenge to

Section 229 [83] The failure to seek the relief in her original Charter motion together with the failure to file a Notice of Constitutional Questionwarranted a

summary dismissal of that argument. This is not an appropriate way to mount a constitutional challenge to a provision. Therelief an applicant seeks should be clearly set out in their materials. This allows the judicial officer to be prepared to receive theevidence and make a thoughtful determination of the issues raised. The arguable merit of a challenge to s. 229 must be assessed on thebasis of the written submissions that were before Judge Moar. [84] This Court is bound by the decision of the Manitoba Court of Appeal in R. v. Gray which found that s. 229did not infringe s. 11(

d) of the Charter. The Court of Appeal did find a risk of imprisonment for the offence infringed s. 7 but wasjustified by s. 1, thereby upholding s. 229 of the Highway Traffic Act. [85] In R. v. Bernier, unreported judgment delivered December 5, 2017, Killeen P.J. followed and held he was bound by Gray inrejecting a constitutional challenge of s. 229. [86] I agree with and adopt the argument of the Crown in their brief:

Constitutional contentiousness or shaky ground are not cognizable legal principles. If the constitutionality of a provision is to be put inissue, it must be attacked directly, not in a sidelong way. It would be an error of law to find that a statutory provision which theManitoba Court of Appeal has held to be constitutional should somehow obliquely contribute to a pre-charge delay breach or an abuse ofprocess because of the differing opinions of other courts, including that which the Court of Appeal directly overturned. Was there merit to an argument that 11(

d) was breached by pre-charge delay? [87] In R. v. Fones, 2009 MBQB 66, Justice Beard comprehensively reviewed the guiding principles in allegations of pre-chargedelay. She said, in part, (at para. 13): • The fairness of a trial is not automatically undermined by even a lengthy pre-charge delay. A delay may operate to the advantageof the accused, since crown witnesses may forget or disappear. Courts cannot assess the fairness of a particular trial without consideringthe particular circumstances of the case… (see R. v.

L.(W.K.) (SCC), (1991), 64 C.C.C. (3d) 321 (S.C.C.) at 24). • To establish a breach of the right to a fair trial, the accused must rely on existing facts, or facts not available, that are material, andthere must be evidence of actual or substantial prejudice that resulted in a breach of the accused’s right to a fair trial (see D.(D.L.) at 17. [88] The defences available to a person charged with an offence under s. 229 include: a.) testing the Crown’s case to demonstrate the offence did not happen or raise a reasonable doubt as to any of the elements of theoffence; b.) the vehicle was taken without the owner’s express or implied consent (s. 229(2.1)) or; c.) someone else has already been charged with the same offence arising from the same incident, (s. 229(3), s. 229(3.1)). [89] Lisa Eisbrenner did not appear or testify at her trial.

In filed affidavit evidence, she asserts that her third child attended theschool where the offence occurred. Lisa Eisbrenner was quite familiar with the bus loop. The bus driver testified at trial that the vehiclepassed his stopped school bus when the stop sign had been activated for some time. The car drove past the bus, stopped to pick up astudent and then continued to leave the bus loop. Later Ms. Eisbrenner attested in an affidavit sworn on June 27, 2018 that it was mostlikely her son Bailey who was driving the vehicle.

But he had no recollection of passing the stopped school bus and he “never has orwould pass a stopped school bus.” (para. 3). [90] It was not necessary for the Crown to establish the identity of the driver of the car (see Gray at p. 9). The purported inability toidentify the driver could therefore not compromise the fairness of the trial. The position of Ms. Eisbrenner in affidavit evidence filedwith the Court demonstrated that the driver had her implied or express permission to use her car.

She did not argue at trial or presentevidence the driver did not have her permission to drive her vehicle. [91] The transcript of the trial reveals that the bus driver was cross-examined at some length on his ability to observe the infractionand his recollection of the event. Ms. Eisbrenner was able to test and question the strength of the Crown’s case. She did receive a fairtrial. [92] There was no evidence to satisfy the legal test that pre-charge delay resulted in material and substantial prejudice to her abilityto make full answer and defence. The motion had no arguable merit.

Was there merit to her argument that 11(

d) of the Charter was breached by late disclosure? [93] Ms. Eisbrenner argues the fact the Crown did not disclose the bus driver’s notes until May 2, 2018 after she requested it onMay 1, 2018 breached her Charter right. She argues that she requested disclosure when she met with the Crown in September 2017. Iam not convinced that her recollection of this is accurate since there is no note of such a request in the computer system maintained bythe Crown. There is no other written confirmation from Ms. Eisbrenner until she requests the disclosure by email on May 1, 2018.

Other, rather detailed information appears in the notes on the system about her losing her ticket, her needing another copy, a copy frontand back being provided to her and her address and phone number were recorded. [94] Clearly, the bus driver’s notes were material and necessary disclosure. I am also satisfied that the Crown could and shouldhave provided it at an earlier time. In this case the disclosure was minimal and Mr.

Sweryda conceded during oral submissions beforeme that he could have filed the Charter motion without the disclosure of the bus driver’s notes. [95] Normally, the remedy for late disclosure is an adjournment. Ms. Eisbrenner’s May 22, 2018 trial was adjourned, not becauseshe needed more time to review the disclosure but to prepare and file the Charter argument. There is no evidence in the trial proceedingsthat more time was required to conduct and prepare for cross-examination. There is no evidence that the late disclosure had any impacton the fairness of the trial.

There is no arguable merit to the position the late disclosure affected the fairness of the trial. Was there an abuse of process in this case? [96] In R. v. Hunt 2017 SCC 25, the Supreme Court adopted the reasons of Hoegg J.A. of the Court of Appeal, R. v. Hunt 2016NLCA 61 in articulating the test for the residual category of abuse of process as “egregious Crown conduct – distinct from, althoughincluding misconduct – which tarnishes the integrity of the judicial system must be demonstrated.” (at para. 80) [97] Again Ms.

Eisbrenner argues the pre-charge delay and the delayed disclosure by the Crown resulted in an abuse of process. Astay of proceedings for abuse of process is a very onerous test. It will only be imposed in the clearest of cases. There is simply no

evidence to support abuse of process based on the delayed disclosure or pre-charge delay. [98] In conclusion, I see no arguable merit on the substantive Charter motion filed by Ms. Eisbrenner. The pre-charge delay anddelayed disclosure did not compromise the fairness of the trial and did not constitute an abuse of process. e.) Is refusing relief consistent with a “Fair and Timely” resolution? [99] There has been significant attention paid recently to the need for proceedings to be fair and timely. The amount of judicialresources used must be proportionate to the seriousness and merits of the issues raised.

The Supreme Court of Canada has directed thattrial judges should be actively involved in curtailing unnecessary delay by carefully scrutinizing applications and summarily dismissingthose where there is no basis upon which the application could succeed, R. v. Cody 2017 SCC 31 , 2017 S.C.C. 31. [100] The Provincial Court has published its Practice Directives with the expectation that they be complied with to ensure that mattersare dealt with “justly and efficiently.” I have noted in this decision the persistent failure of Ms.

Eisbrenner and her representative tocomply with the Practice Directives. [101] The Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, at paragraph 43 said: . . . Unnecessary procedural steps and inefficient advocacy have the opposite effect, weighing down the entire system . . . Eachprocedural step or motion that is improperly taken, or takes longer than it should . . . deprives other worthy litigants of timely access tothe courts. [102] The oversight by Ms.

Eisbrenner and her representative in not attending Court resulted in the waste of Crown counsel’s time, theJudge’s time both in Court and preparing for the hearing and had a negative impact on other worthy litigants whose matters were notheard because of this wasted court time. [103] Mr. Sweryda argued that he has made numerous appearances in the past and this is the first time he has missed court. He arguedthat Lisa Eisbrenner should not be prejudiced by his mistake. I note that Lisa Eisbrenner has chosen to take a “hands off” approach inthe defence of her traffic offence. She has not appeared at any hearing.

She attests to not having the time to deal with the complexitiesof this traffic offence and wanting to leave it entirely in the hands of Mr. Sweryda. That has been her choice. [104] Even if I had jurisdiction to grant the remedy that is sought by Ms. Eisbrenner, principles of timeliness and efficiency, long sincelost in this proceeding, support the refusal of the relief she seeks. I have concluded it is not in the interests of justice to re-open theCharter motion. Was there merit to a future abuse of process motion based on abusive Crown conduct? [105] During the course of oral submissions before me, Mr.

Sweryda sought direction on his intention to file a further abuse of processmotion. Mr. Sweryda explained that it was his intention to file a related but different abuse of process motion.

The basis for theproposed motion included: 1.) the Crown’s persistent position in this and other proceedings that he cannot represent persons before the traffic court relying on theLegal Professions Act; 2.) the Crown’s refusal to agree to reasonable adjournment requests; 3.) the Crown’s conduct in contacting his client directly when they should contact him as her chosen representative; 4.) the Crown’s actions, in repeatedly seeking to have his Charter motion summarily dismissed was the Crown’s abusive attempt tosuppress hearing the motion on its merits; 5.) the Crown has filed a Law Society complaint regarding his ability to represent individuals in traffic court which he does as a citizenand not as a law student, supervised by a practicing lawyer; 6.) the Crown’s position in refusing his adjournment requests has been to gain a tactical or strategical advantage so that the Chartermotion will not be heard. [106] I have already dealt with many of these allegations during the course of my reasons.

While I can understand why Mr. Swerydafeels beleaguered, I find he bears most of the responsibility for the way in which matters have progressed. These proceedings were notassisted by the fact that he began to prepare for the trial in May of 2018 when he had agreed to represent Ms. Eisbrenner in June of 2017. [107] I have reviewed in detail the transcripts, the many email exchanges between Mr. Sweryda, Ms. Eisbrenner and the Crown. Ifind there was a basis for the positions taken by the Crown. The fact those positions were in opposition of Mr. Sweryda’s position doesnot amount to an abuse of process.

There is no merit to a further challenge of the Crown’s conduct amounting to an abuse of process. Inmy view, any further motions of similar style filed by Mr. Sweryda are beginning down the road of vexatious litigation. At theconclusion of oral submissions, I directed Mr. Sweryda to not file any further abuse of process motion in this case. Conclusion [108] There is no jurisdiction for this Court to reconsider a dismissal for failure to appear for the Charter motion. Even if I were toassume jurisdiction, the circumstances of this case weigh against the relief that Ms. Eisbrenner seeks.

She was convicted in September2018 as registered owner of passing a stopped school bus. She must now be sentenced on that matter before JJP Zallack on January 18,2019 in Courtroom 3B at 10:00 a.m.

“Original Signed by:” Anne Krahn, A.C.J.