Durham (Regional Municipality) v. Jagtoo, 2010 ONCJ 596

COURT FILE No.: Durham 2860 999 00 89199023 00 DATE: 2010·12·09 Citation: Durham (Regional Municipality) v. Jagtoo , 2010 ONCJ 596 ONTARIO COURT OF JUSTICE IN THE MATTER OF an appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: The Regional Municipality of Durham Respondent — AND — Michael Jagtoo Appellant Before Justice R.

Beninger Heard on October 21, 2010 Reasons for Judgment released on December 9, 2010 Jeremy Tatum ................................................................................................... for the prosecution James Jagtoo ................................................................................ for the defendant Michael Jagtoo On appeal from a conviction by Justice of the Peace R. Boychyn on September 29, 2009.

Beninger J.: Introduction This is an appeal by Michael Jagtoo, pursuant to s. 135 of the Provincial Offences Act , RSO 1990, of a conviction for speeding under s. 128 of the Highway Traffic Act, RSO 1990. The case proceeded to trial before Justice of the Peace R. Boychyn on September 29, 2009. The Trial Proceeding There are two affidavits of direct evidence filed on this appeal, one by the appellant, sworn July 12, 2010 and one by the trial prosecutor, Jane Moffatt, sworn August 5, 2010.

The appellant has also filed his affidavit, sworn May 13, 2010, which attached hearsay evidence of a third party, and I place no weight on that hearsay evidence. The direct evidence affidavits of the appellant and the trial prosecutor are, in their essential elements and read in conjunction with their submissions at trial, consistent as to what occurred on the trial date. The appellant, who is a lawyer, was charged on April 23, 2009 with the offence of speeding under s. 128 of the HTA, and attended on the scheduled trial date of Sept. 29, 2009.

On Sept. 24, 2009, the appellant made a disclosure request, by facsimile, to the prosecutor. He forwarded the written facsimile request for disclosure to the wrong Crown office, and it was not received by the prosecutor until the day prior to the trial. That was too late for the disclosure request to be processed by the prosecutor. On the trial date, the appellant requested that the prosecutor consent to an adjournment of the trial. The prosecutor declined to

do so. In court before the trial commenced, the prosecutor showed the appellant a chart which set out prescribed penalties for the offence. The prosecutor also showed the appellant the police officer’s notes, which were comprised of information on the face of the Certificate of Offence and some brief notes made by the police officer at the time. The prosecutor was straightforward in her affidavit in stating that she “verbally summarized” the police officer’s notes and “I cannot say whether or not Mr.

Jagtoo actually read the notes along with me as I was referring to them.” The appellant’s affidavit evidence is that he did not read the disclosure notes held by the prosecutor. There was no copy of the disclosure, in any form, provided to the appellant. When Court commenced, the appellant repeated his disclosure request to the Justice of the Peace.

After hearing submissions from the appellant and the prosecutor, the Justice of the Peace refused the adjournment request, making the following comments: I’m absolutely shocked and amazed that a barrister and solicitor, in good standing, in this province, would treat these matters in such a cavalier fashion…I find your request to have this matter adjourned disingenuous and smacking of, what has been referred to as, sharp practice… I’m disappointed in your request and I think it’s an embarrassment to and an insult to the Court and to the profession of barristers and solicitors and your Motion is denied.

The case proceeded to trial, and the appellant was convicted of the speeding offence and fined $259.00. The appellant is appealing the conviction. The Issues on Appeal The appellant raises two substantive issues on appeal: 1 ) He argues that he did not receive proper disclosure of the case before the trial proceeded. 2 ) He argues that the presiding Justice of the Peace exhibited a bias towards him. The Disclosure\Adjournment Issue Dealing with the first ground of appeal, the granting of an adjournment by the Court is discretionary.

The Provincial Offences trial court in question is a busy court, with a high volume of cases on the docket. The Justice of the Peace has the task of managing the docket in a fair and efficient manner. The prosecutor is also responsible for managing a high volume of cases. In this case, the adjournment application was brought, without prior notice, on the first trial date on which the case had been scheduled to be heard.

Although the Notice of Trial was sent to the appellant on or about June 2, 2009, the disclosure request was not made until Sept. 24, 2009 which was less than a week prior to the scheduled trial date. The respondent argues, with some justification, that the appellant showed a lack of due diligence in making the disclosure request. Taking into account the limited due diligence shown by the appellant in requesting disclosure, was the disclosure provided by the

prosecutor sufficient? In my view, the disclosure provided was not sufficient. The appellant was left in the position of defending the case at trial on the basis of having received a verbal

summary of the disclosure on the trial date. I do not find any bad faith on the part of the prosecutor, who I suspect was somewhat exasperated by being faced with the appellant’s last minute adjournment request on a busy court date. However, a verbal

summary of the case from the prosecutor, on the trial date, does not meet the standard of disclosure which might be reasonably expected by persons seeking to defend a court case. On this appeal, the respondent argued that, pursuant to R. v. West [2001] OJ No. 3406 , a decision of Hill, J., the Crown’s disclosure obligation is met by the disclosure of information, without the necessity of providing a copy of that information to the defendant. I distinguish R. v. West , supra, from the present case. In R. v.

West , the issues before the Court concerned the Crown’s duty to provide original documents, or to seek out additional information that was not in the Crown’s possession or control. In R. v. West , the Crown disclosed to the defendant the information that it had, which included a 36 volume brief with 8,914 pages. In this case under appeal, the extent of the disclosure provided was a verbal

summary. I appreciate the distinction, set out in s. 2(1) of the Provincial Offences Act , between provincial offence and criminal offence procedure. The legislation does not seek to impose an unrealistically high standard of procedure upon a Provincial Offence Court. A verbal

summary of disclosure materials on a trial date in response to a disclosure request, even in provincial offences procedure, does not meet a minimum standard of disclosure to the defendant. If disclosure was the only issue on this appeal, I would order a new trial. However, there is an additional issue that I must consider. A Reasonable Apprehension of Bias In Committee for Justice and Liberty v.

Canada (National Energy Board) 1976 CanLII 2 (SCC) , [1978] 1 SCR 369 , at 394-95 , de Grandpre J. set out the test for determining whether there is a reasonable apprehension of bias: That test is “what would an informed person, viewing the matter realistically and practically- and having thought the matter through- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly”. As further stated by Trotter, J. in R. v.

Czerniak 2010 ONSC 5067 (CanLII) , [2010] OJ No. 3904 , para. 17 , “…a reasonable observer would not conclude that the trial judge was predisposed to decide the case one way or the other.” In this case, the Justice of the Peace characterized the appellant’s adjournment request as “disingenuous”. Disingenuous is defined in the Canadian Oxford Dictionary, Second Edition, as “insincere; lacking in frankness or honesty”.

The Justice of the Peace further referred to the adjournment request as “smacking of, what has been referred to as, sharp practice.” ‘Sharp practice’ is defined in Black’s Law Dictionary, Eighth Edition, as “unethical action and trickery, especially by a lawyer”.

The comments I have noted were made by the Justice of the Peace before the trial commenced. The respondent prosecutor argues that I should distinguish comments made prior to commencement of trial, from comments made during the course of the trial. With reference to the issue of whether there was a reasonable apprehension of bias, in my view, comments made by the trier of fact before the trial are of equal concern to comments made during the trial.

In his reasons for decision, the Justice of the Peace stated: “I would like to begin by affirming that the defendant is a member of the Law Society of Upper Canada in good standing.” The Justice of the Peace then set out a history of the disclosure issue leading up to the trial date. It is clear that the circumstances of the adjournment request that he addressed with the appellant before the trial commenced were fresh in his mind.

Before the trial commenced, the Justice of the Peace had characterized the appellant’s adjournment request as “disingenuous” and stated his opinion that the appellant had engaged in “sharp practice”. It has often been stated that justice must not only be done, it must be seen to be done. After the statements made by the Justice of the Peace with respect to the appellant before the trial commenced, I ask the following: 1) Would the appellant have a reasonable apprehension of bias? 2) Would a reasonable observer conclude that the Justice of the Peace was predisposed to decide the case against the appellant?

My answer to both of those questions is ‘yes’. The appellant is a lawyer, who happened to be a defendant in the case before the Court. A lawyer who is a defendant before the Court should not be treated any differently, and should not appear to be treated any differently, than any other defendant before the Court. On a review of the comments made by the Justice of the Peace both prior to the trial commencing, and at the beginning of his reasons for decision, I find that there is an appearance that bias may have been exhibited towards the appellant. The respondent argues that, as stated in Nippard v.

Raby, 2007 CanLII 41884 (ON S.C.) , para. 9 , “the standard of review requires a palpable and overriding error which affects the result.” The comments made by the Justice of the Peace in this case before the trial commenced meet the required standard of review. I find that, on hearing those comments, a defendant before the Court would reasonably believe that the Court exhibited a bias towards the defendant. A reasonable apprehension of bias was a palpable and overriding error which could reasonably be seen by the defendant to have affected the result in this case.

In Conclusion In conclusion, on the facts heard at the trial, this was an uncomplicated matter. It has been the subject of an appeal on which substantial materials have been filed by both parties and extensive submissions have been made by both parties in argument. I thank the appellant and respondent for their thorough preparation and argument. At this time, it is not in the public interest, or necessary to satisfy the ends of justice, to return this case to Provincial Offences Court for a new trial. The conviction is quashed, and an acquittal is entered. There is no order as to costs. Released: December 9, 2010

Signed: “Justice R. Beninger”