R v Goldenberger

R. v. Goldenberger

[2012] O.J. No. 3234
Ontario Court of Justice — J.M. Ritchie J. | May 31, 2012

Background

Esteban Goldenberger was facing charges under the Provincial Offences Act. His case dragged on through three separate trial dates. On the first trial date, his paralegal filed a Charter section 11(b) application (arguing the case took too long to get to trial), but then abandoned it during the proceedings. The trial didn't finish that day.

When they returned for the second trial date, a different paralegal tried to raise the Charter 11(b) argument again. Justice of the Peace Waisberg shut it down immediately, saying the paralegal was precluded from arguing it because: (a) he hadn't raised it prior to arraignment, and (b) he didn't care if the trial took five years to complete — Charter applications had to be brought before the first trial date, period. The case still didn't finish and was put over to a third date for sentencing.

Issues

1. Can a defendant raise a Charter s.11(b) application after it's been abandoned by previous counsel?
2. Must Charter s.11(b) applications only be raised at the beginning of trial, prior to arraignment?
3. Is there prejudice to the prosecution when a Charter s.11(b) argument is brought at a later trial date?

The Charter Application Error

The appeal court found that Justice of the Peace Waisberg made a fundamental error. When a Charter application is made — even if it's been previously abandoned, even if it's raised later in the proceedings — the court must hear submissions on it. You can't just refuse to hear the application entirely.

The defence cited R. v. MacDougall [1998] 3 S.C.R. 45 and R. v. Peressotti [2008] S.C.R. 313 as authority for the principle that Charter applications should be heard on their merits. The prosecution agreed completely — prosecutor Stamicar told the appeal court she had reviewed all the transcripts and agreed "the s.11(b) application should have been heard, as opposed to have been denied without even being heard."

This is a procedural fairness issue that goes to the heart of Charter rights. Even if a Charter application might ultimately fail, courts must at least hear the arguments before making that determination.

Key Takeaway

Courts cannot refuse to hear Charter applications, regardless of when they're brought or whether previous counsel abandoned them.

If you're facing a Provincial Offences Act charge and believe your Charter rights have been violated, the court must give you a fair hearing on that application — even if the timing isn't perfect or there's been confusion with previous counsel.