[para133] In summary, I find the following:
(1) On the agreed statement of facts, there can be no question that the Crown has met its burden of proof regarding the offences.
(2) I am also satisfied that the defence has met its onus to establish its of aboriginal right pursuant to s. 35 of the Constitution Act, 1982 and accordingly the charged against both accused are dismissed.
[para134] Even though the quasi-criminal charges against the Powleys have been dismissed for the reasons given, this case illustrates that there are many important issues that must be decided in the future regarding Metis rights. The criminal process is not a particularly effective or efficient tool to arrive at the required solutions. It is a blunt instrument. It is also an expensive, time consuming, and cumbersome process.
[para135] The issues raised have significant political components that are best addressed in the political arena.
[para136] I have attempted to provide a workable definition of Metis to meet the needs of the case before me. However, the definition game of who is a Metis can be continued on an issue to issue basis and site to site basis and an individual basis.
[para137] Section 35 of the Constitution Act, 1982 did not have to acknowledge the aboriginal rights of a group of people referred to as Metis. However, the Parliament of Canada has clearly proclaimed the Metis existence. It has been twenty-five years since the Constitution Act has been in force. Is it not time to find answers regarding the issues affecting the Metis?
Costs and Section 11(b) of the Charter
[para138] At the conclusion of this matter on September 9, 1998, counsel for the defendants requested an award of costs on a solicitor on his own client scale pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms (The Charter) on the basis that the defendants had been denied their right to be tried within a reasonable time as guaranteed under s. 11(b) of the Charter.
[para139] The Crown opposes such a request on two fronts. Firstly, Mr. Long contends that the court lacks the jurisdiction to make such an order. Alternatively, the Crown contends that the award of costs for an infringement of a Charter right is an exceptional remedy and only should be awarded in extraordinary circumstances. Mr. Long suggests that the various reasons for the delays experienced in the case at bar fall very short of extraordinary circumstances.
[para140] I shall have certain observations as to the availability of a s. 11(b) motion by the accused for a stay in this matter later in this judgment. At this stage, I would only like to observe that the context in which s. 11(b) wasraised by the defence was only in its request for costs.
Summary of Events leading up to the trial of this matter:
(1) Powleys shot a bull moose without a licence on October 22, 1993.
(2) Powleys charged with hunting without a licence and possession of moose contrary to Game and Fish Act on October 29, 1993.
(3) First court appearance was on December 1, 1993. The accused were represented by Acton. The matters were put to January 5, 1994 to set a trial date.
(4) On January 5, 1994, the accused were remanded to January 26, 1994 to set a trial date.
(5) On January 26, 1994, the trial was selected to commence on April 14, 1994.
(6) On April 14, 1994 the matter was adjourned at the request of the defence and with the Crowns consent because of a change in defence counselís schedule.
There was some suggestion that a negotiated settlement might be possible. Accordingly, the matter was adjourned to May 10, 1994 for the setting
of a new trial date.
(7) On May 10, 1994, the trial was scheduled to commence
on June 27, 1994.
(8) On June 22, 1994, counsel for the accused requested an adjournment due to an inadvertent scheduling conflict with a planned family holiday. The Crown consented to this adjournment. The matters were put over to July 27, 1994 in order to select a new trial date.
(9) On July 27, 1994, a trial date was selected to commence on November 28, 1994.
(10) On November 25, 1994, yet another trial date was selected. The trial date had a commencement of April 24, 1995.
(11) On April 6, 1995, counsel for the accused served a Notice of Constitutional Question upon the Attorney Generals of Ontario and Canada.
(12) Counsel for the Powleyís also informed the Crownís office that Ms. Teillet would be applying for intervenor status on behalf of the Metis Nation of Ontario and that her timetable would not permit her to attend the scheduled trial commencing April 24,1995.
(13) Mr. Acton requested another adjournment on April 19, 1995 in order to allow for Ms. Teilletís participation in the proceedings. The Crown consented to this adjournment. The information indicates that the next trial date was to commence on July 10, 1995 and that it was marked preemptory.
(14) On June 26, 1995, Mr. Acton advised the Crownís office that there were apparent difficulties in obtaining a Justice of the Peace to hear the trial. It became apparent that yet another trial date had to be found.
(15) On July 10, 1995, the charges were adjourned to July 19, 1995 and then to July 26, 1995 and then to September 6, 1995 and then to September 27, 1995 and finally to October 16, 1995 before a judge of the Provincial Court of Justice (Provincial Division).
At that time, the court scheduled two weeks of trial time commencing on February 26, 1996.
(16) During the July-September 1995 period, Mr. Acton was no longer acting for the accused and that Ms. Teillet and Mr. Addario were now counsel.
(17) On February 13, 1996, a Crownís request for an adjournment was adjourned to February 16, 1996. The adjournment was granted on February 16, 1996 and the February 26, 1995 trial date was vacated and the matters were scheduled to return on March 4, 1996.
This adjournment had been necessitated by a scheduling conflict on behalf of the then acting Crown.
(18) On March 4, 1996, the matters were put over to March 5, 1996.
(19) On March 5, 1996, the court assigned a trial date for September 30, 1996.
(20) Counsel served a Notice of Constitutional Question on August 29, 1996.
(21) On September 24, 1996, the then Crown counsel argued for an adjournment of this case pending the Ontario Court of Appealís decision in Perry v. Ontario. Judge J.D. Greco granted the Crownís request. His Honour also observed that although counsel for the accused objected to the adjournment request and used the four points in Askov (1990), 59 C.C.C. (3d) 449 relating to an application for a stay, they did not request a stay. The court adjourned the matters until January 10, 1997 for the Perry decision.
(22) Due to delays in the release of the Perry decision, the Powley matters were subsequently adjourned from January 10, 1997 to March 27, 1997 to May 20, 1997 to May 29, 1997 to September 23, 1997 to September 30, 1997 and finally to October 7, 1997. At that time, the trial date of April 27, 1998 was selected.
(23) The Perry decision was released on June 5, 1997.
(24) Mr. Long and Ms. Christic assumed carriage of this case on behalf of the Crown in September of 1997.
(25) The trial finally was started on April 27, 1998.
(26) When the Crown requested an adjournment in order to respond to the expert witnesses tendered by the defence, Ms. Teillet again objected to this request.
However, it was not in the context of a stay application but rather a request to deny the adjournment and force the Crown to complete its case.
[para141] Section 11(b) of the Charter directs that: ìAny person charged with an offence has the right to be tried within a reasonable time.î One cannot examine the chronology of events in this case and not be cognizant that delay was a live issue. Interestingly enough, and despite Judge Grecoís observations on September 26, 1996 and my comments during this trial as to the issue, an application to stay the proceedings pursuant to s. 11(b) of the Charter was never placed before the court for its determination. I am not to be taken as suggesting that counsel for the accused were unaware of the availability of a stay application. On the contrary, defence counsel are very experienced litigators and took great pains to have this case decided on its merits instead of having it stayed thereby allowing the issues raised by the Powleys to be dealt with by appellate division courts.
[para142] Counsel were kind enough to draw to the courtís attention that the issues in this trial were destined for the Supreme Court of Canada. Consequently, a great deal of research and resources were invested by both the Crown and defence. Since the determination of this case on the merits might very well have a significant impact regarding the clarification of Aboriginal rights of the Metis, I was prepared to curb my concerns regarding the possible remedy open to the Powleys under s. 11(b) of the Charter.
[para143] As it has turned out, I dismissed the charges against the Powleys for the reasons contained in this judgment. This result in one sense makes the stay issue rather academic. However, I want it clearly understood that under normal circumstances, I would have expected an application to be made for a stay in factual situations similar to the case at bar.
[para144] I understand counselsí enthusiasm to expand the legal landscape. However, a the desire to create new jurisprudence should take second place to the best interests of the accused. This comment must be tempered in thisparticular case by the fact that, in my opinion, the Powleys were willing participants in the quest for a ruling on the merits.
[para145] If I had arrived at a different conclusion than I have in the case at bar, I would have seriously looked at the issues surrounding the granting of a stay under all the circumstances.
[para146] In spite of the fact that counsel have been mute on the issue of a stay of proceedings based on s. 11(b) considerations, Mr. Rubyís invitation for the court to consider awarding costs to the defendants on a solicitor and his own client basis remains to be determined.
[para147] Before the question regarding costs is addressed, I should examine the circumstances of this case and decide whether I would have been inclined to make an affirmative finding as to a s. 11(b) application.
[para148] The basic factors that a court should consider when deciding the applicability of s. 11(b) include: (1) the length of the delay (b) the reasons for the delay © waiver of the delay and (d) prejudice to the accused. See: Mills v.
The Queen (1986), 26 C.C.C. (3d) 481 and R. v. Rahey (1987), 33 C.C.C, (3d)).
The length of the delay
[para149] It took approximately four and one-half years from the time of the offence and the charges being laid for this matter to get to trial. A summary conviction charge under the Game and Fish Act should not take anywhere near this length of time to reach a hearing. In fact, no criminal or quasi-criminal charge should be in the judicial system for over four years before a trial is commenced. Therefore, the first factor has meet more than adequately addressed.
Reasons for the delay and waiver
[para150] From October 1993 to September 1996, several contributing factors were at work. These included: change of counsel, scheduling conflicts of counsel, preparation required to prepare for the many issues that were to be argued, and court availability. Consent to the various delays were the order of the day.
[para151] Six days prior to the commencement of the trial on September 30, 1996, the Crown brought a motion to adjourn the trial in order to obtain the decision from the Ontario Court of Appeal in Perry. This motion was opposed by the defence Judge Greco granted the adjournment but sounded the warning regarding a possible Askov application. Subsequent court appearances were made pending the release of the Perry decision. It would be another year before the April 27, 1998 trial date was selected. This time cannot be considered neutral. The Crown must shoulder responsibility for it.
[para152] Likewise, I find the Crown responsible for the time that elapsed between the completion of the defenceís case and the eventual completion of the evidence. The Crown had ample time to have appropriate expert evidence in place for the April-May time slot. A change of trial tactics is a decision for counsel to make. However, the time that passes in order to allow for such change must be borne by the party making the request. Counsel for the Powleys strenuously opposed the Crownís application.
Prejudice to the accused
[para153] I am prepared to find that the cumulative effect of the delays in this case resulted in prejudice to the Powleys. The stress of any criminal or quasi-criminal allegation must be recognized. Obviously, the charges facing the Powleys are not in the same category as a Criminal Code offence but, nevertheless, there is an anxiety factor.
[para154] Unlike most Provincial Offence cases, the Powleys have had a great deal of media attention. Therefore the usual anonymity of the Game and Fish Act has been replaced by public attention and notoriety.
[para155] I find that there has been an unreasonable delay contrary to s. 11(b) of the Charter. In fact, I would have granted a stay of proceedings if such a remedy had been asked of me.
[para156] Are costs appropriate relief in the circumstances of this case?
[para157] The first question that must be answered in deciding whether to award costs is whether I have jurisdiction under the Provincial Offences Act to do so. In written submissions under the cover of a letter dated December 1, 1998, Mr. Long relied on the decision of McRae J. in the case of Ontario v. 974649 Ontario Inc. (1995), 25 O.R. (3d) 420 (Ont. Ct. - Gen. Div.) wherein the Court held that the Provincial Division Courts lacked the jurisdiction to order costs. At p. 429 of the judgment, McRae observed that:
ì... he [the Justice of the Peace] had no jurisdiction, independently of the Charter, to grant the remedy sought, that is, an award of legal costs. Although the P.O.A. provides that a justice of the peace may award costs on behalf of a witness, this power is limited by both the statute and the regulations. Furthermore, as stated above, there is no inherent jurisdiction which extends the power of the Provincial Offences Court to permit the award of legal costs. Section 24(1) does not give the Provincial Offences Court or any statutory court new power or authority.î
[para158] However, Justice McRaeís decision was appealed to the Ontario Court of Appeal and that Court rendered its decision on November 13, 1998. The case is cited as R. v. 974649 Ontario Inc. (c.o.b. Dunedin Construction (1992))
[1998] O.J. No. 4735.
[para159] OíConnor J.A., writing for the Court, reviewed and agreed with the decisions of R. v. Pang (1994), 91 C.C.C. (3d) 60 (Alta, C.A.) and R. v. Jedynack (1994), 16 O.R. (3d)
612 (Ont. Gen. Div.) and then observed at para. 70 that:
ìAlthough the jurisdiction of the Provincial Court under the Criminal Code to order costs against the Crown which was the basis of the decisions in Pang and Jedynack is arguably broader than the jurisdiction of the provincial offences court under s. 90(2) of the POA, it is nevertheless a very limited and specific statutory jurisdiction. For purposes of s. 24(1), I see no reason to distinguish the two situations. I am therefore of the view that s. 90(2) of the POA is a sufficient authority upon which to found jurisdiction under s. 24(1) of theCharter to order payment of costs by the Crown.î
[para160] Although I am satisfied that I now have the jurisdiction to award costs. I must satisfy myself that costs are appropriate in the case at bar. In R. v. Pawlowski (1993), 12 O.R. (3d) 709, Gulligan J.A., in the majority decision noted at p. 713 that:
ì It is evident, therefore, that the decision of Chadwick J. in this case stands as precedent for the award of costs under s. 24(1) of the Charter, against the Crown in a criminal proceeding only in a rare case that is unique and where it is questionable whether there will ever be a similar prosecution.î (My emphasis)
[para161] Goodearle J. provided guidance as to when it would be appropriate to award costs in connection with a Charter breach in R. v. Jedynack (1994), 16 O.R. (3 d) 612 (Ont. Ct. (Gen. Div.)) at p. 619-620 as follows:
ìIn the meantime it would be my view that such an order should only be made in circumstances where:
(1) The acts, or failures to act, collectively amount to something well beyond inadvertent or careless failure to discharge a duty;
(2) Rather the conduct would have to fall within the real of recklessness, conscious indifference to duty, or whether conscious or otherwise, a marked and unacceptable departure from usual and reasonable standards of prosecution;
(3) Such conduct must be seen to have resulted in an indisputable and clearly measurable infringement or denial of a right;
(4) Where the costs order is intended to ensure compliance with an order or show disapproval for conduct which resulted in serious prejudice to the accused it should, as well, be founded in circumstances of clear and obvious compensatory need.î
[para162] The following instructions at p. 620 in Jedynack (supra) also should be kept in mind when the issue of costs is being considered:
ìNothing even close to a standard of perfection should be imposed on prosecutors who, in this day and age, are overburdened with work and, as was the case here, often largely dependent upon outside resources over which they have little daily control in the development of their cases, which many times impact on the discharge or the manner in which they are able to discharge their duties.
It would be very much contrary to the best interests of law-abiding society, to allow a policy to develop that in effect allowed costs awards on a routine basis. For such a policy, if ever allowed to blossom, could terribly fetter, even cripple, an orderly and generally competent prosecution process.î
[para163] I find that the circumstances in the case at bar do not even begin to approach the threshold of conduct us contemplated in R. v. Jedynack.
[para164] Accordingly, there will be no order as to costs.
VAILLANCOURT PROV. J.
R. v. Steve Powley and Roddy Powley (No.3)
ONTARIO COURT OF JUSTICE (PROVINCIAL DIVISION)
for the Crown
HER MAJESTY THE QUEEN
Jean Teillet and C. Clayton Ruby
for the Accused
Steve Powley and Roddy Powley Heard: See Powley No. 2
VAILLANCOURT, CHARLES H., Provincial Division Judge
ADDENDUM TO JUDGMENT
[para165] VAILLANCOURT PROV. J.:-- Subsequent to the preparation and reproduction of the judgment (R. v. Powley and Powley No. 2) and prior to delivery of same, Mr. Long notified defence counsel and myself of the Ontario Court of Appealís decision with respect to Ontario v. 974649 Ontario Inc. (1995), 25 O.R. (3d) 420 (Ont Ct. (Gen. Div.)). Although I was aware of this decision when I prepared my judgment, I appreciate Mr. Longís integrity in updating his submissions as soon as he became aware of the result of the appeal.
VAILLANCOURT PROV. J.
End of document.
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