No notice of Charter violations necessary for most Provincial Offence matters

I seldom suggest judicial decisions are wrong. This time, however, I suggest the decision of the Court in R v Vellone (unreported OCJ February 20, 2009 -- it just came to my attention) is wrong.

This decision, which is of considerable importance, holds that the notice to the provincial and federal crowns when a Charter remedy is sought is unnecessary in most provincial offence matters because the prosecution is conducted by municipalities and not the Province.

Hence, according to the Court in the specific case, an issue of delay is not the responsibility of the Province, but rather of the prosecuting municipality, and as a result s 109 of the Courts of Justice Act does not apply.

The Court also made a finding of prejudice in the absence of any evidence by the accused on the basis that a delay of fourteen and a half months is inherently prejudicial -- I note in passing the Court of Appeal's decisions generally require express proof of prejudice.

The importance of the decision is obvious. Defendants in POA matters will be able to go to Court and, without any prior notice or evidence, ask for, and receive, stays of prosecution for delay based solely on the time it took from charge to trial. This case will be relied on across Ontario in the Justice of the Peace courts.

Fortunately it appears the decision will be appealed further.

The obvious error is the failure to see that a municipality is a creature of the Province. And so any failure by the municipality is a failure by the Province. Put otherwise, for the argument to work, one would have to say the Province really is not engaged and there is no true State action and no Charter issue at all; the absurdity of that argument is obvious.

One can only hope the decision is either overturned on appeal or seen as per incuriam.
James Morton
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Toronto, Ontario
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