The Charter Is No Trifling Matter

Distributing copies of the Canadian Charter of...

Distributing copies of the Canadian Charter of Rights and Freedoms. (Photo credit: Wikipedia)

 Alan Shanoff wants to slam the brakes on the creaky wheels of Canadian justice. Over at Law Times,  in an article entitled Social Justice: Charter s. 11(b) shouldn’t apply to speeding offences, Shanoff discusses two recent speeding ticket cases that will be heard by the Court of Appeal for Ontario next year:

Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect, trials held promptly enjoy the confidence of the public.”

But how do these societal interests apply in speeding and other minor traffic or regulatory offences? How should we apply s. 11(b) to such offences?

That’s the question the Court of Appeal for Ontario will be grappling with in a matter involving the City of Toronto against Richard Hariraj and Isidro Andrade at some point this year or in 2013…

Shanoff apparently thinks the Charter should not apply to “regulatory” offences that do not have actual penal consequences. He concludes:

But what is it that people in these courts are learning about the Charter? Are they learning disrespect for the Charter after seeing it used for such trifling matters? Are they learning disrespect for our laws?

The Highway Traffic Act is an important piece of legislation governing motorists’ use of the roads and highways.

But many offences are of a minor nature with no risk of any restriction on liberty and little prospect of degradation of the evidence let alone any potential anxiety or stigma from exposure to the proceedings.

The offences can hardly be described as criminal or penal in nature. They’re minor and don’t merit the same application of Charter rights as do more significant offences where prosecution can lead to anxiety and stigma.

As stated by former Supreme Court justice Peter Cory in R. v. Wholesale Travel Group Inc., “a Charter right may have different scope and implications in a regulatory context than in a truly criminal one.”

Further, as the Law Commission of Ontario has proposed in its August 2011 report on the modernization of the Provincial Offences Act, there’s a good argument that certain offences, such as speeding, should be subject to an administrative monetary penalty system instead of being handled by summary conviction courts. I’d add the application of s. 11(b) of the Charter to that exception as well.

Common sense and an application of the principles of proportionality dictate that s. 11(b) shouldn’t apply to speeding or similar regulatory offences. To apply it with all of its rigour to such offences will only generate derision for our supreme law.

Shanoff is plainly wrong for a number of reasons.

First, the Canadian Charter of Rights and Freedom states, in part:

Section 11: Any person charged with an offence has the right:

(b) – to be tried within a reasonable time

(d) – to be presumed innocent until proven guilty according to the law….

Section 24:

(1)   – Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Under section 32, the Charter applies in respect of all, not some, governmental action: RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 (S.C.C.).

Second, the Supreme Court of Canada in R. v. CIP Inc., [1992] 1 SCR 843 (S.C.C.) soundly rejected the argument that regulatory offences, by their nature, should not attract section 11(b) Charter scrutiny:

In this case, the Provincial and District courts found that the main reason for the 19‑month delay was the shortage of court facilities.  That makes the delay “systemic or institutional” in nature, and the respondent bears the onus of justifying the inadequate resources (Askov at p. 1231).  The appellant’s trial was adjourned twice, apparently because of priority being given to Criminal Code matters.  The respondent submits that the delay is justified solely on that basis.  If I understand that argument correctly, the respondent is suggesting that because the appellant was charged with a regulatory offence, the allowable time frame for bringing it to trial should somehow be greater than it would be in other circumstances.  I am not persuaded by that argument.  The right to be tried within a reasonable time is engaged when a person is “charged with an offence”.  The Charter does not distinguish between types of offences, and it seems to me that doing so for the purposes of assessing the reasonableness of delay would unduly stretch the principles of contextual analysis.  The interest of an accused in the availability and reliability of substantiating evidence will exist irrespective of the nature of the offence with which that person is charged. [emphasis added]

Third, the right to be tried within a reasonable time is fundamental to a fair and effective legal system that promotes justice—both substantive and procedural.

A trial is a trial is a trial.

It is irrelevant that a speeding ticket, or any other “regulatory” offence does not necessarily attract “criminal or penal consequences”. Just ask anyone who has too many demerit points and faces the risk of suspension of his or her driver’s license, increased insurance premiums, or in some cases, getting fired from their job. The issue is not merely “criminal or penal consequences”, it is also “economic consequences” that must be considered.

Finally, the burden rests with the Crown (provincial prosecutor) to ensure a speedy trial through timely disclosure. In R. v. Rowan, [2004] O.J. No. 3504 (O.C.J.) the relatively minor regulatory case of speeding became unnecessarily protracted due to the failure of the prosecutor’s office to respond to further disclosure requests at all, let alone in a speedy manner. In all the circumstances, the court stayed the case as a result of unreasonable delay pursuant to section 11(b) of the Charter. A number of Ontario provincial court decisions, have also applied R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 and R. v. Morin, [1992] 1 S.C.R. 771, in staying charges under  the Highway Traffic Act, R.S.O. 1990, c. H.8 and Provincial Offences Act, R.S.O. 1990, c. P.33 due to undue institutional delays in breach of s.11(b) of the Charter: R. v. Omarzadah, 2003 CarswellOnt 5842 (O.C.J.), aff’d [2004] O.J. No. 2212 (Ont. C.A.); R. v. Piskun, 2008 CarwellOnt 4790 (O.C.J.);  R. v. Rowan, 2004 CarswellOnt 3469 (O.C.J.).; R. v. Ovided, 2008 CarswellOnt 4181 (Ont. Ct. J.); R. v. Godin, 2009 CarswellOnt 3100 (O.C.J.)

I’m sure that if Alan Shanoff ever has the misfortune of getting a speeding ticket, he will promptly plead guilty and pay the set fine. For the rest of us, the Charter is no trifling matter.

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4 Responses to “The Charter Is No Trifling Matter”

  1. Blawg Review #320 – A Call to Arms « Amicae Curiae Says:

    […] tremendous Blawg Reviews #318 and #319 (and see the Trial Warrior’s latest post on Charter rights here), which whilst presenting a terrific array of voices on the law, left open for us the opportunity […]

  2. Government Giving ICBC Power To Increase Premiums Based on "Driver Assessment Point System" | ICBC Personal Injury Claims Lawyer Erik Magraken | Victoria & Vancouver Island BC Says:

    […] overhaul will likely bring constitutional scrutiny since the Canadian Charter of Rights and Freedoms is No Trifling Matter.  As MLA Sather quipped on the floor on the Legislature this week “I wasn’t aware that […]

  3. jiabao Says:

    can’t agree more

  4. LawScribes Says:

    Reblogged this on Lighthouse Legal Affairs and commented:
    The Canadian Charter of Rights and Freedoms applies to all government actions, all offences, even mere regulatory offences, as it should be.

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