R v Valencia

R. v. Valencia

2007 CanLII 50289 (ON S.C.)
Ontario Superior Court of Justice — Garton J. | November 22, 2007

Background

Elmer Valencia was arrested for impaired driving in the early morning hours of June 8, 2003. What followed was a comedy of errors spanning over two years — but the errors were all his own making. Valencia repeatedly appeared in court through various agents and lawyers he claimed he hadn't "fully retained," constantly asking for adjournments to get his finances together. He bounced between Joel Etienne's office and Charles Bourgeois's firm, neither of whom he ever actually paid.

The court finally set a trial date for October 25, 2004, warning Valencia he'd have to proceed with or without counsel. When that date arrived, Valencia still hadn't retained anyone and asked for yet another adjournment to pursue Legal Aid (which had already rejected him). The frustrated court granted one last chance and set a new trial date of September 26, 2005. Ten days before trial, Valencia finally retained agent R. Keston, who immediately asked for an adjournment to prepare a section 11(b) Charter motion claiming unreasonable delay. Marshall J. refused the request, the trial proceeded, and Valencia was convicted of impaired driving.

Issues

1. Did Marshall J. err in refusing to grant an adjournment for Valencia to prepare a section 11(b) Charter motion?
2. Were Valencia's Charter rights to counsel under section 10(b) violated?

The Section 11(b) Motion That Never Was

Valencia's agent argued they needed time to prepare a Charter motion claiming the case took too long to get to trial. The Superior Court wasn't buying it. Justice Garton applied the R. v. Morin factors for assessing unreasonable delay and found that Valencia himself caused virtually all the delay in this case. The Crown provided disclosure at the first appearance and was ready to proceed throughout. Valencia kept requesting adjournments to retain counsel he never actually hired, ignored court warnings, and showed up to his confirmed trial date asking for yet another postponement.

The court noted that you cannot rely on your own delay to support a claim that your Charter rights were breached. Since a section 11(b) motion would have had "no prospect of succeeding," Marshall J.'s refusal to grant the adjournment was entirely proper and caused no miscarriage of justice.

The Right to Counsel Claim

Valencia also tried to argue on appeal that police violated his right to counsel by interrupting his phone call with duty counsel and refusing to provide him with a videotape of the conversation. The court rejected this argument on procedural grounds — Valencia never raised these issues at trial, never cross-examined the officers about them, and never called the duty counsel as a witness to support his claims. The general rule from R. v. Lewis is that you can't raise Charter issues for the first time on appeal, especially when you had every opportunity to explore them at trial.

Key Takeaway

You cannot create your own delays and then complain the case is taking too long.

If you're going to represent yourself, be prepared to actually proceed when your trial date arrives. Courts have limited patience for defendants who repeatedly seek adjournments they haven't earned, and claiming a Charter violation based on delays you caused yourself is a losing strategy.