R v Vellone

R. v. Vellone

2011 ONCA 785
Court of Appeal for Ontario — MacPherson, Simmons and Blair JJ.A. | December 14, 2011

Background

Angelo Vellone was pulled over on Highway 400 northbound on June 7, 2007, clocked at 120 km/h in a 100 km/h zone. He requested a trial, got a court date for April 2, 2008 — but then the Justice of the Peace adjourned the trial because the courtroom was too hot (83.7 degrees). Vellone didn't ask for the adjournment and told the court he "wanted to get his trial over and done with," but the trial got pushed to August 25, 2008.

When Vellone finally appeared in court over a year after his ticket, he argued the case should be dismissed for delay under Charter section 11(b). The Justice of the Peace refused to hear the argument, saying Vellone needed to give 15 days' written notice to the Attorney General. Vellone was convicted and fined $95. He appealed and won at the provincial court level, but York Region appealed that decision to the Court of Appeal.

Issues

1. Did Vellone need to give notice under section 109 of the Courts of Justice Act when raising his Charter delay argument?
2. Was there actually a Charter section 11(b) violation for unreasonable delay?

The Notice Requirement Trap

The Court of Appeal ruled that Vellone was required to give advance written notice to the Attorney General of Ontario under section 109 of the Courts of Justice Act before raising his Charter argument. Section 109 requires notice when "a remedy is claimed under s. 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario."

Even though York Region was prosecuting the case under a municipal agreement, the court found this was still "Government of Ontario" action. The court reasoned that: (1) municipalities are considered part of provincial government under Charter section 32; (2) Vellone was charged under provincial statutes (Highway Traffic Act and Provincial Offences Act); (3) the province maintains oversight and can take over any prosecution; and (4) the notice gives the province important data about systemic delay problems in the justice system.

The lower court judge who let Vellone off was wrong to think municipal prosecutions don't require notice to the Attorney General. Without proper notice, Vellone couldn't raise his Charter argument at all.

Key Takeaway

Before raising any Charter argument in a Provincial Offences Act case, you must give written notice to the Attorney General of Ontario — even if a municipality is prosecuting your case.

This notice requirement is a procedural trap that kills many otherwise valid Charter arguments. The Court of Appeal ordered a new trial for Vellone, but York Region agreed to withdraw the charge given how much time had passed and how many court appearances were involved.