HER MAJESTY THE QUEEN Respondent — v. —, 2013 ONCJ 631

ONTARIO COURT OF JUSTICE DATE: 2013·11·18 COURT FILE No.: Durham 00-6540548A-00 Citation : R. v. Byrnes , 2013 ONCJ 631 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: HER MAJESTY THE QUEEN Respondent — AND — RODERICK BYRNES Appellant Before Justice M.T. Devlin Heard on September 27, 2013 Reasons for Judgment released on November 18, 2013 Mr. R. DeFaria ........................................................................ Counsel for the Prosecution Mr. R.

Byrnes on his own behalf On appeal from a conviction and sentence imposed by Justice of the Peace Walker on May 10, 2013. DEVLIN J.: This is the decision in the appeal of Mr. Roderick Byrnes who was convicted of speeding on May 10, 2013. The conviction stems from an incident which occurred on July 31, 2011. On September 27, 2013 I allowed the appeal and directed that an acquittal be entered on the basis that the Justice of the Peace erred in law by dismissing Mr. Byrnes’ Charter Application. I advised the parties that I would provide written reasons for my decision. These are my reasons.

Facts The facts of this case can be summarized by the following chronology. July 31, 2011: Mr. Byrnes was charged with speeding.

August 9, 2011: Mr. Byrnes filed the “Notice of Intention to Appear” indicating his request for a French trial. He received notification that his trial would take place on January 20, 2012. January 20, 2012: Mr. Byrnes appeared before Her Worship Ballam for his trial. The trial did not proceed because there were no resources to conduct a French trial that day. April 13, 2012: Mr. Byrnes appeared before Her Worship Walker for his second trial date. The trial began by addressing Mr. Byrnes’ Charter Application. June 8, 2012: Mr. Byrnes appeared before Her Worship Walker for submissions on the Charter Application.

Her Worship dismissed the Application. The trial was adjourned to the next pre-scheduled date for French trials: September 14, 2012. September 14, 2012: The trial did not continue because Mr. Byrnes had filed an appeal of the decision on the Charter Application. The case was adjourned to the Appeal Court on October 18, 2012. October 18, 2012: Mr. Byrnes appeared before myself in the Appeal Court. His appeal was dismissed because there was no jurisdiction to hear it prior to the completion of the trial. Mr. Byrnes’ matter was adjourned to the next available date to continue the trial: December 20, 2012.

December 20, 2012: The trial did not proceed because Mr. Byrnes advised the Court he was confused about the purpose of this date and was not ready for the trial. The matter was adjourned to February 15, 2013 to allow Mr. Byrnes sufficient time to file his new 11(

b) Motion and prepare for the trial. The plan was to fix a new trial continuation date on February 15 th . February 15, 2013: No transcript was provided for this date. It appears, based on the May 10 th transcript, that the matter was adjourned to May 10, 2013. May 10, 2013: Mr. Byrnes’ trial concluded: he was convicted and sentenced. Legal Analysis Mr. Byrnes submits that his language rights under s. 16(1) of the Charter and his right to a trial within a reasonable time under s. 11(

b) of the Charter have been infringed. The Prosecutor submits that there has been no infringement. Section 16(1) states: English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

Section 11(

b) states: Any person charged with an offence has the right to be tried within a reasonable time.

Timing of Arraignment in Cases with a Charter Application Because there was considerable confusion in this case about when and how Mr. Byrnes should be arraigned, I make the following preliminary comments on this issue. On April 13, 2012, the charge was read to Mr. Byrnes mid-way through the Charter Application. However, Mr. Byrnes did not enter a plea because the Justice of the Peace believed that the Charter Application should be heard and decided before the plea was entered. In my opinion, this was incorrect. Mr. Byrnes should have been required to enter a plea before the Charter Application commenced. If Mr.

Byrnes refused to do so, the Court should have deemed his plea to be “not guilty” and made this entry on the Information. A “best practices” approach would entail having the Defendant arraigned prior to hearing the Charter Application because it is only after arraignment that the justice of the peace is formally seized with the matter. Arraignment includes having the charge read, asking the Defendant how he pleads, “guilty” or “not guilty”, and noting the plea on the Information.

To do otherwise and commence a Charter Application prior to arraignment or midway through the arraignment and prior to the plea being entered, would allow a party who received an unfavourable decision on the Charter to request that the trial commence before a different justice of the peace since the first one was not seized. If this were to happen, the parties would be able to re- argue the Charter Application since the new justice of the peace would not be bound by the original Charter decision.

This absurd legal outcome and case management headache would be properly prevented by having the plea entered and noted on the Information prior to addressing the Charter Application. Language Rights Mr. Byrnes immediately requested a French trial by ticking off the box on the “Notice of Intention to Appear” (the “Notice”) to indicate his intention and by filing the Notice with the Court. His request for a French trial was overlooked and therefore his trial could not proceed on January 20, 2012.

While I agree with the Prosecutor that this oversight was an administrative error, I find that the error does amount to a breach of Mr. Byrnes’ language rights. I note that on January 20 th , 2012 the Court was critical of Mr. Byrnes because he did not indicate on the Notice that he required an interpreter. This criticism was unfounded and based on a misunderstanding of how French trials are conducted. As a French-speaking Defendant, Mr. Byrnes did not require the assistance of an interpreter at his French trial.

Perhaps an interpreter would have been necessary to assist any English-speaking witnesses the Prosecutor wished to call, but it would be the responsibility of the Prosecutor, not Mr. Byrnes, to make the appropriate arrangements for these witnesses. By indicating on the Notice that he wished to proceed in French, Mr. Byrnes properly completed the Notice and satisfied all of his obligations on the language issue. Trial Within a Reasonable Time Due to the Court’s failure to provide Mr. Byrnes with a French trial on January 20, 2012, Mr. Byrnes’ trial did not commence until April 13, 2012.

I find that the 8 month delay between August 9, 2011, (the date Mr. Byrnes requested a French trial) to April 13, 2012, (the date the trial began) amounts to a breach of Mr. Byrnes’ right to have a trial within a reasonable time for two reasons. First, had he requested a trial in English, Mr. Byrnes’ matter could have been heard on January 20 th , 2012, within 5 months of requesting a trial. Second, no effort was made on January 20 th , 2012 to immediately secure a new date for the French trial. Instead, Mr.

Byrnes’ matter was adjourned a further 3 months to a pre-scheduled date for French trials, despite the fact that there were several intervening dates available for English trials. I was advised by the Prosecutor that in Lindsay, there are 2 days set aside each year for French Trials in the Provincial Offence Court: one in the Spring and one in the Fall. Not only is a system of pre-scheduled dates problematic from a case management perspective, it is also unfair because it is unresponsive to the individual requirements of a specific case. The fact that this system appears to apply only to

French-speaking Defendants is a clear contravention of s. 16(1) of the Charter and as such, unacceptable. Even if I am wrong and this general process for scheduling French trials is constitutionally sound, the effect of slavishly continuing with the pre-scheduled French dates in Mr. Byrnes’ case, even after the trial had commenced before a specific Justice of the Peace, led to unacceptable delays. The result was that a routine speeding trial was commenced 9 months after the offence date, heard in 6 month instalments over a period of 13 months, and only concluded 22 months after the offence date.

Remedy As stated at the outset, on September 27, 2013, I allowed the appeal and directed that an acquittal be entered. I did not order a new trial because there was no public interest in doing so, in part because of the seriousness of the Charter breaches, and in part because the case had been ongoing for more than 2 years. Released: November 18, 2013 Signed: “Justice M.T. Devlin”