R. v. Lammens, 2011 ONCJ 99

Information No. 10-620 Citation: R. v. Lammens , 2011 ONCJ 99 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN V. ERIC R. LAMMENS ********** RULING BEFORE THE HONOURABLE MR. JUSTICE G.A. POCKELE on February 7, 2011, at LONDON, Ontario ********** APPEARANCES : P. Rollings Counsel for the Crown B. Ducharme Counsel for E.R. Lammens MONDAY, FEBRUARY 7, 2011 RULING POCKELE, J. (Orally):

Today, we are dealing with the matter of Eric Richard Robert Lammens. It is a matter that is scheduled for trial today. What is interesting is that the trial in this matter commenced on October 21 st , 2010, when Mr. Lammens was put to his plea. Since that time there have been adjournments and various pre-trial motions were heard and dealt with. The issue that I am dealing with on this ruling relates to a Charter Application.

At the opening of court, I was provided and the Crown attorney was provided with a Notice of Application, dated February 4, 2007, [sic] today’s date being February 7, 2011, announcing that the applicant, Mr. Lammens, was intending to bring an application for the exclusion of evidence under Section 24(2) of the Canadian Charter of Rights and Freedoms , and for the exclusion of evidence, including statements, utterances, breath test results and other conscripted evidence, following a violation under

Section 8 and

Section 10(

b) of the Canadian Charter of Rights and Freedoms and, more importantly, for an order abridging any time required for service of this Application, if required. It is the request for an order abridging time for service of the application, if required, that causes me to make this Ruling. I am going to offer a quote from Justice Libman, in his book, Criminal Trial Rules In Provincial Courts In Canada, and the quote is: The Ontario Rules of Court in Criminal Proceedings (hereinafter referred to as the “Rules”) serve a critical function in enhancing the quality of the administration of justice in criminal cases.

The requirement of the Rules serve to focus proceedings and to ensure a minimally adequate record upon which to adjudicate. Integral to the effective operation of the regulatory regime are time limits for serving and filing relevant materials. Moreover, the adversary system requires the participation of two “informed parties”. It miscasts the role of the court and impairs the appearance of a fairly administered justice to require the presiding judicial officer to, in effect, factually and legally “top up” one litigant’s case. As another court put it, the Rules are designed to prevent "litigation by ambush".

That is a quote from Justice Libman. The single most frequently occurring application advanced in the Ontario Court of Justice at the trial of a drinking and driving charge is an application to exclude evidence based upon a breach of the Canadian Charter of Rights and Freedoms . It has become a rarity when such a claim for relief is not advanced at such trial. This is extremely relevant because such applications are not novel, are routine, and are part of the very fabric of the defences advanced by the usual practitioner of criminal law.

Rule 30 applies to all applications under Section 24(2) of the Charter for the exclusion of evidence. It specifically provides and outlines the contents of the Notice of Application for such relief, the guidelines for filing and serving the Notice of Application, and the materials for use on such an application. Unfortunately, full and complete compliance with the rules is a rarity. Rule 30.03 deals with the contents of the Notice of Application.

It directs that the application state, "The anticipated evidence sought to be excluded, including any derivative evidence, a concise statement of the exclusionary issue under the Charter , a statement of the exclusionary principles," and the "Documentary, affidavit or other evidence to be used at the hearing," and where necessary, that an order is required to abridge or extend the time for serving or filing materials. It is the latter that I am dealing with here, but I will address the former provisions of this paragraph.

Rule 30.04 deals with two separate but related actions, the service of the Notice of Application and supporting materials and, secondly, the filing (with the court) of such materials. These provisions must be read with Rule 3, which relates to the computation of time. Rule 3 says in the computation of time between two events, the first day of the first event is excluded and the day of the second event is included. Service after 4:00 p.m. is deemed to have been made on the next day that is not a holiday. This Rule provides the responding party shall be served not less than 15 days before the trial date.

These same documents must be filed with the court at least 10 days before trial date. The filing requirement is important because it enables the documents to be delivered to the trial judge in a timely manner so that the judge can familiarize himself with the issues at trial in advance of the trial date.

The Local Administrative Judge for London issued a best Practices Direction on May 1 st , 2008 requiring that the 15 day rule be extended to 30 days for all matters proceeding in London, Ontario . This Practice Direction was publicly distributed. It is available to all members of the public. It is available to all criminal practitioners. It is available in courtroom two when trial dates are set. This is the rule for London - 30 days. This adopts the Superior Court rules. Rule 30.05(2) defines the contents of the affidavit, and that is defined in mandatory language.

The word, “shall” indicating “shall, including the basis of the affiant's knowledge,” and “a statement of the facts material to a just determination of the exclusionary issue which are not disclosed in any other materials filed in support of the application”. While the rules provide no commentary concerning the background and intent of these rules, nevertheless, the Rules speak in mandatory language. Clearly, advancing a Charter Application is not to be considered a casual process.

It is a serious process which, from the perspective of the judge, requires that the applicant thoroughly and completely provide a wide spectrum of materials to the judge, well in advance of the hearing date. A judge is not expected to seek out a copy of the information from the court staff in order to familiarize himself or herself with the upcoming proceeding. A transcript must be filed, not a

summary, although certainly it contemplates an informed applicant and a respondent providing an agreed statement of facts. If there is an affidavit, it must be sourced and must contain sufficient information to support a just determination. Counsel must realize that trial judges regard Charter Applications seriously, and we are also concerned with “ambush” on the road to trial. Let us address the specific issue for Mr. Lammens. His offence date is December 13 th , 2009. He first appeared before the court on January 27 th , 2010.

This is the eleventh court appearance, albeit some were related to scheduling and hearing a rather complex pre-trial motion. This trial date was set on October 21 st , 2010. I am advised by counsel that this matter was subject to a pre-trial on July 21 st , 2010, where the Crown was advised by defence that there would be a

Section 10(

b) Charter Application. I have not been told that this proposed Charter Application was the subject of a pre-trial and that is an important distinguishing feature. It would seem, at the very least, in the four months since the trial date was set in excess of four months, that ample time has been available to prepare and serve a Charter Application. Despite that, today, after the pleading was taken on October 21 st , a Charter Application is served in court upon the Crown and upon the defence.

There is no opportunity for the Crown to file responding materials and defence has generously offered to extend great latitude to the Crown in responding to this Application. Clearly the rules concerning service have been violated. I have not had an opportunity to look at the Charter Application in advance of the trial date. However, there are provisions in the rules that an order can be granted abridging any time required for service of the Application, if required. In this regard, an Application has been made from the floor of the court by counsel for the defence.

There is no affidavit material to support this application. I am required to rely upon the representations of counsel in this form for the reasons that an order be granted abridging the time for service. Although I am uncomfortable dealing with evidence received in this form or an excuse received in this form, it is quite simple. There is no excuse.

No explanation has been offered why the material was not prepared and served upon the Crown in a timely fashion, which would have enabled the Crown to provide an adequate response and answer, and would have enabled the judge to deal with the Application in advance of the date. No explanation is before the court.

I have no explanation and that is fatal to this request to abridge the time required for service, however, to be ultimately fair, I should go on to assess the Charter Application on its own, because if it is truly meritorious, it would not be consistent with the principles of the administration of justice to deny the accused his opportunity to advance this Charter Application. In that regard, I then go to the contents of the Charter Application. Again, the application is grossly deficient with the aforementioned Rule 30.05.

This dictates that there should be a copy of the information attached, but I cannot ignore the fact that the information is before the court. I have a statement containing seven paragraphs indicating the basis of the Charter Application is a failure of the police to fulfill Mr. Lammens’ 10(

b) rights, a failure to provide Lammens with a reasonable opportunity to select and retain counsel; that there will be reliance upon the disclosure that the officer lacked reasonable and probable grounds; that an Officer Boughmeister (ph) failed to provide an opportunity to the accused to speak with counsel and there is a reference to two decisions, R. v. Haus in the Ontario Court of Appeal, the decision of G uyat and Ross and Leclaire , both of which are attached. Needless to say, I have not had the opportunity to review these cases, although Haus is somewhat familiar to me, before coming into trial.

This is mandatory language in Rule 30.05, and while I can waive the requirement to file a copy of the information, I have no other

information before me which would satisfy the term, “Where necessary to complete the record,” an affidavit by or on behalf of theapplicant. The material I have before me is insufficient to determine whether this is a meritorious Charter Application. Now, why should I beconcerned about that? Well, the reason is, and I may be repeating myself, is that a proper and thoroughly prepared Charter Application,and I assume this is a proper and thoroughly prepared Charter Application, should be met with a proper and thoroughly prepared set ofresponding materials by the Crown.

This cannot be accomplished when an Application is served on short notice, which necessarily impedes full and complete considerationby the prosecution and the preparation of a response. Why is this so dangerous in the administration of justice? Well, as a judge, weoften make decisions based upon the materials that are presented to us and not subject to our independent research. If one litigant isunable to make a full and complete presentation, then the resulting decision is a bad one, because the decision did not reference allrelevant precedents and principles.

This is the issue addressed in the case called Re Hansard Spruce Mills(1954) (BC SC), 13 W.W.R. (N.S.) 285 B.C.S.C.,which stands for the proposition that a judge should not rule contrary to a judgment of another judge of the same or equivalent court,except where it is demonstrated that some binding authority in case law or relevant statute was not considered or, where the exigencies ofthe trial required an immediate decision without opportunity to fully consult authority. These are the circumstances which a judge canonly deviate from a decision of a fellow judge.

Such situations arise where arguments proceed and the litigants are not in the position of being totally prepared to meet the opponent’scase, to advance their arguments with all relevant and current case law in an environment where counsel can present their analysis,distinguishing competing case law and thereby enabling the judge to perform his duties as contemplated in the common law tradition. All of this relates to an inadequate record to support a Charter Application and no opportunity to respond by the Crown.

Going to the contents, the bold outline of facts contained in this Notice of Application fails to pass the threshold to enable me to screenthis application and determine whether it is sufficiently meritorious to proceed. Rule 30.03 does not anticipate or expect the factual foundation for the Application to be included in the notice. Rule 30.05 speaks tothis. Today, this is a situation where an affidavit is required because, otherwise, I do not have information to complete the record. Thisis a situation where an affidavit is necessary and in 2(c), it says in mandatory terms what should be in the affidavit.

I do not have thathere. In his address to the Criminal Lawyers Association in 2008, Justice Moldaver created great controversy when he urged the assembledparticipants not to waste the court’s time with frivolous or tenuous matters which have little or no chance of success. He described this asthe worst form of advocacy and there is no place for it in the courtroom. He later stated, “I need you to be good advocates in your use ofthe Charter.

I need you to understand the Charter is not your personal ‘Genie in a bottle,’ that you can summon with impunity wheneverthe spirit moves you.” His statements are important because a Charter Application filed at the last minute, absent effective supporting materials, served so late that no pre-trial, and I am aware that there was mention of a Charter Application on July 21st, 2010, but I havenot been advised that the Charter Application was pre-tried, and had it been, I would have expected an agreed statement of facts and aconcise argument, none of which is here.

In any event, Moldaver says an Application served so late that no pre-trial can be held has all the hallmarks of a frivolous or tenuousmatter. In the context of Charter Applications, in order for our justice system to operate, trial judges must have the ability to control the course ofproceedings before them, and one such mechanism is the power to decline to embark upon an evidentiary hearing at the request of onecounsel, when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.

The ability of judges to screen pre-trial motions and hear charter motions is not a new concept to criminal law. It was dealt with by theOntario Court of Appeal in 1992 with the decisions in Kutynec and Durette, both decisions of Justice Finlayson. I want to indicate thatsubsequent to these decisions, the Rules of Criminal Procedure were drafted, so they embody the principles of Kutynec and Durette. Finlayson said at the pre-trial stage, he would call upon counsel to outline the nature of the anticipated evidence to be called. That was

done here, but those rules have been subsumed by the criminal procedure rules. The bottom line is that Finlayson says that the facts, as alleged by the defence, provide no basis for a finding of a Charter infringement or a finding the evidence in question was obtained in a manner which infringed the Charter or a finding of the test for exclusion set out in 24.2, then the judge should dismiss the motion without hearing evidence. I want to digress shortly.

In the Charter Application before me, I have no explanation of any exclusionary principles under 24.2 which would bring this request for exclusion within the ambit of the Supreme Court decision in Grant. In other words, even if there were a Charter violation, why exclusion would be granted.

More recently, in a paper delivered by Chief Justice Heather Smith of the Supreme Court, entitled New Approaches To Criminal Trials , a paper prepared by a blue ribbon panel, including Justice Durno, it stated at paragraph 275, with respect to such applications, the notice and supporting material must provide a trial judge with sufficient detail to permit him to conduct a “threshold screening” to determine if the order requested could be obtained on the basis of the written material filed.

Where the notice fails to provide a basis upon which the order could be obtained, the trial judge should not hear the application, since on the basis of the material filed, the relief requested could not be obtained or had no reasonable likelihood of being obtained. At paragraph 276, the report said if the material filed is so deficient the trial judge cannot determine whether there is a reasonable prospect the application could succeed, there is no need for lengthy submissions in court. The application should simply be dismissed by the trial judge.

At paragraph 278, the report said such applications should not be fishing expeditions with counsel seeking to find a Charter violation. This report speaks to the need to raise the level of acceptable standards of practice for pre-trial applications and to make it clear that the application may not proceed if the prerequisites are not set out. At paragraph 313, the panel dealt with the question with respect to the views of some members of the bar, the remedy for non-compliance should be an adjournment. It is neither realistic nor conducive to effective case management.

Rather, it fosters poor advocacy and ineffective case management and prolongs or delays trials. In addition, the approach advocated by some counsel displays a patent disregard for the interests of the complainants, the victims, the witnesses, the accused persons and the public in having realistic trial dates set. I should indicate now, if this matter is adjourned, we are setting trials for one day matters in the month of September, 2011.

Paragraph 317, there are some suggestions, in considering whether a non-compliant application proceeds, a judge should look at the following: the merits of the application as reflected in the Notice of Application and supporting material. I have already commented there is no supporting material here. Secondly, the explanation offered by opposing counsel and to the trial co-ordinator. The trial co-ordinator does not fit in here. I have heard explanation; I have no explanation. Third, whether there has been a prior indication that such an application would be brought.

I am advised that it was mentioned in a pre- trial that there would be a 10(

b) Application on July 21 st , 2010. This speaks all the more clearly to the fact that this Application should have been formalized well before the morning that the trial commences. I have no explanation as to why the notice was not filed, the prejudice to other parties and the impact on scheduling. While I have no response from the Crown, defence indicates that it is prepared to be quite liberal in letting the Crown respond to this application. If I grant an adjournment, it goes over to September.

In the Ontario Court of Justice, the judicial day, the time actually spent in court ranges between four-and-a-half to four-and-three-quarter hours. As I said earlier, matters scheduled for one day cannot be heard until September of 2011. There are no quick and easy trial dates. Most judges currently have up to 11 hours a day of trial time scheduled and when continuations must happen, courts become triple and quadruple booked. The spectre of delay is real and live in this court. Counsel appearing before the court should realize that trial time is not an infinite resource.

There is no latitude to permit a late filed Charter Application which might increase the original estimate of trial time. To expect otherwise is irresponsible.

As I have indicated here, I have conducted a screening process as an adjunct to the question of whether I should permit late filing in the absence of explanation. As a result of the screening process, I see no realistic prospect that this application could succeed. By filing it this late, it has all the hallmarks of an afterthought. Accordingly, I will not permit this Charter Application be filed late. I will not let it proceed, but as I indicated earlier, the issue of

Section 8 relief is live before the court and the Crown must still satisfy the court that it can comply with the law with respect to warrantless searches. ********** FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) I, CHRISTINE BRYANT, certify that this document is a true and accurate transcript of the recording of Her Majesty the Queen v. Eric R. Lammens, 80 Dundas Street, London, Ontario taken from recording no. 30/11 and 31/11, which has been certified in Form 1.

February 25, 2011 (Date) CHRISTINE BRYANT PHOTOSTATIC COPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND HAVE NOT BEEN PAID FOR UNLESS THEY BEAR THE ORIGINAL SIGNATURE OF CHRISTINE BRYANT, AND ACCORDINGLY ARE IN DIRECT VIOLATION OF ONTARIO REGULATIONS 587/91, ADMINISTRATION OF JUSTICE ACT , JANUARY 1, 1990. Transcript Ordered: February 8, 2011 Transcript Completed: February 16 , 2011

Transcript Delivered: February 25, 2011