Details of application and motion hearings for delay motion with charter 11b challenge – Draft

Sept 21 2016 – Draft

Here is a fairly detailed account of what  transpired after filing my application for delay motion, at the hearing for the application where it was accepted and then heard on Tue Sept 20th. Including the important words Associate Chief Judge Krahn said after closing.

I think we should use this experience and even refer to the decision if it mentions the root cause of the institutional delay as I argued and provided evidence of.

To file at least two other charter challenges to try and defeat the following which could be argued are also in breach of charter rights our can allow this.
– recent NDP Summary Convictions Act amendments to allow the officer or operator to file statements instead of attending trial to be questioned and … .  The PC’s have not amended to correct or repealed these amendments.
– NDP or PC? Amendments to …. legislation to give municipalities more control over at least parking offences and or City Council changes to parking bylaw to make it harder to contest in court.

I already documented the steps for filing the delay motion application and put as a section of the pinned post on the WiseUpWinnipeg page (more about it is available on the MB Courts site under Court Directives).

There is a quite a bit more in the arguments documents I submitted to them but not what was actually said in court.  Much of this you will find below and together these can help us prepare for other motions if we need or in the event we don’t get a favorable decision. I am pretty confident we will get a favorable one. I already talked to some of you about this but this is from my journal.  The transcripts for the over two hour hearing would be quite costly so I felt it was important to document as much as I could remember so we can refer to it.

Hopefully the timely release of the Grant Appeal Fact-um and Todd getting it to me in time and or my arguments will result in a favorable decision and actions.

Mine case had the complexity of having to argue based on if Jordan or Morin should be applied, the arguments around sword vs. shield and my evidence and arguments demonstrating what was causing the institutional delay (abusive, unfair and illegal acs photo and wps traffic enforcement with upward trend and contradicting the primary focus of enforcement as per pe audit report and ….

———
Details of Delay Motion hearing – Charter Challenge using 11b.  For simple traffic matter (alleged speeding of 53kph in 30kph reduced speed school zone)
Her Majesty vs. Kevin Yaworski
MBPC 2016 09 20
408 York RM 408 2PM

I believe the motion went well but we need to wait to find out for sure.  Due to the amount of evidence and arguments remaining we agreed to an adjournment of the trial part way through motion so officer not waiting outside any more. I didn’t want more public funds wasted.

Associate Chief Judge Krahn, second to the Chief is reserving her decision.  She said she had a lot to consider and was off for a while starting soon so we agreed to return Oct 24th 9pm rm 405

—–

There was affidavits in the package I picked up from the Crowns office when it was ready Mon afternoon along with the case log.  The Crown submitted several affidavits with content I shared on our group and on my blog as well as a CBC news story where I was misquoted.   They were going to try and use it against me to defeat my motion.

I was very disappointed when I read this in the Crowns arguments.  This was never my intention and I updated the posts right away to make it clear that those that want to use 11b must make an effort to contact the crown to find an earlier date.  I think the onus should be on the Crown but we don’t want to be seen as misdirecting the public or using them in any way.  We stand against this type of behavior.

Mr. Murray (The Crown from the Constitutional Law branch for this motion) deserves credit as he was only doing his job and was more than civil and helpful before court when I had questions about filing the affidavit I had purposely excluded based on relying on Jordan (SCC) where prejudiced is to be presumed.

He also gave advice regarding filing evidence, and other help before and during court.  All this even considering the short notice I gave them (11 days and min is 30).  I was waiting for decision in Grant appeal application.  I thought it would not be heard.  When I found out I started preparing.  I thought it was min 15 but then I went to file but the long weekend reduced it to 11.

When my application for delay motion was heard Judge Champagne (Former Chief of MBPC) advised the Crown had the right to rely on the previous Morin (SCC) while Jordan (SCC) was in transition.  He allowed the motion to be heard and gave me time to file the affidavit.  I don’t recall him saying it was needed to demonstrate how I was prejudiced by the delay. He said just as an example and I am making this up (I do not recall all that he said but it was along the lines of):

“After the offence occurred you ….. and contacted traffic ticket specialists and then decided to plead not guilty.”

Thinking back now it appears he may have thought as did the Crown that I delayed and this could be used to reduce my overall delay which is only 9 days past the 18 month ceiling of Jordan for criminal matters.  It is within the 8 – 12 months ceiling for Morin.

He suggested the motion and trial be set to be heard in the same room and date trial already set for which was Sept 20th.  This probably done so the crown not seen to not add more delay.   He took the liberty to check if Judge Krahn (I later found out she is Associate Chief Justice of MBPC) was available and she was .  After the Crown and I agreed he got the clerk to arrange.

He said he was allowing this motion to be heard even though it was past the min 30 days as I was representing myself and that I had advised I was having the matter heard not just for myself but on behalf of the pubic and briefly went into the issues.  He said he was aware there was many tickets in the system.

I obtained the MBPC Affidavit form online, completed it and got notarised by a lawyer including stamp.  I had 5 points that laid out as follows:

1 – I would like to bring attention to R v. Grant and R v. Segodnia (MPPC) decisions which ruled that more than 4 to 6 months is to be considered an unreasonable delay for simple traffic matters.

2 – R v. Jordan (SCC) adds to this that 18 months or more is to be considered unreasonable for criminal matters and the courts are to presume the accused prejudiced by the unreasonable delay.

I didn’t include this but could have said:
Jordan also states non criminal matters (e.g. simple traffic matters) should take less time to be to be heard

3 – This is not a criminal matter and is a simple traffic matter.

4 – The date of this alleged offense was on Mar 11 2015 which is over 18 months or 559 days ago.

5 – My recollection of this event and period of time has been eroded by this extensive delay

I was relying on Jordan so so didn’t want to give them more than that.

I needed to submit this to:
– The court (in this case MBPC at 408 York 100d and they provide a copy to the Judge(s) that will be presiding at the motion hearing and trial.  They keep the original and stamp my copy.
– The Crown from the Constitutional Law branch (CLB) at 405 Broadway 12th Floor Family Law Reception. In this case Mr. Murray and he was ok receiving by email.

It is normal practice to submit any evidence you relying on
– for the motion or trial to the court (in this case 100d) and CLB
– for trial to the Crown (5th? 405 Broadway) and stamp your copy.

I should have filled copies of the grant appeal factum, my statement as the accused (not required but I choose to), my arguments for the motion and my arguments if it went to trial and any decisions or caselaw you relying on (I choose to just include the points in my arguments docs.

There wasn’t time so just brought 3 copies to court.  This was because I didn’t get the Crown’s arguments till Mon afternoon, was up late and early to finish them and then update with new leading argument relying on factum after I got a phone call and was sent it.  Then re-printed 3 copies of my motion arguments  including factum.  I had printer jam and ran out of paper on part of my copy of the factum.

I finished and left my house with just under 20 mins left before trial then couldn’t find parking.  I looped around and found spot near but not in front of fire hydrant and prayed no ticket. I arrived 3 mins late but luckily another hearing was on progress.

I apologized for being late and interrupting the court once it my turn and gave them my submissions which were accepted.

Judge Krahn said to Mr. Murray I assume you are ok with this factum since it has your name on it 🙂  I later apologized for springing it on him and not providing it with the evidence I brought to him Mon and explained that I had only got it this morning just before coming.

I had been recently told the courts don’t look at how most people see right and wrong and that I needed to argue the law.  I did this during the motion but thought it was important to start off with showing my respect for them, plead to their humanity regarding these issues and their serious impacts, make it clear I was representing the public and respectfully remind them of their oaths to serve and protect the public.

I started with passionately delivering an honest and genuine statement from the accused (basically a summary and impact statement on behalf of the public).  Starting with thanking all of them (Your Honor, Mr. Murray and Ms. Daien (officer was waiting outside)) for choosing to serve the public and special thanks to Judge Champagne, Mr. Murray and Ms. Daien for taking into consideration that I was representing my self and not enforcing the requirements (min 30 days) and for being more than civil and providing advice where possible regarding filing my affidavit, evidence and arguments.

I summarized the the issues based on what I have learned over several years of advocating for the the public. Including first hand experience and from interacting with 1000’s of them online and many in person as well some time in the courts. What their common concerns were and most important the growing disrespect of police, government and the courts along with civil unrest.  And the root cause was up to 200,000 simple traffic offenses being issued a year with evidence the vast majority being unfair or illegal like I will argue mine was due to engineering deficiencies or breach of hta or related serious issues.

note: As many have seen recently I am passionate about these issues but the depth of my knowledge of them and especially the  impacts on the public, our City and Province caused me to get emotional and I chocked up during reading my statement and I needed to pause a few times.  The clerk even brought me some water and the Judge asked me if I needed some time but I continued.  It wasn’t my intention but I can only hope it and with my arguments and evidence helped them see the seriousness of these issues.

I ended the statement with mentioning some of the abuse in our lower courts that I had witnessed first hand and heard from others who had experience 1st hand.  What the root cause was that was resulting in the delays, abuse of the courts and the public and for this reason without being disrespectful I reminded them about the oath I assumed they had taken to serve and protect the public.

I then went into my leading argument that the Crown planning on relying on Jordan (min ceiling of 18 for simple criminal matters and prejudice presumed) for Grant appeal (less than 18 months) but are saying Jordan is transitional and relying on Morin (8-10 months ceiling with prejudice not presumed and other factors to reduce onus on the Crown) for mine and that they can’t have it both ways.  I referred to the factum.

Both Judge Krahn and the Mr. Murray acknowledged I had demonstrated that I was there to represent the public but the Crown said my statement although passionate involved issues not relevant to this matter before us.

Mr.  Murray referenced several points in Morin that allow level of onus of accused to prove prejudice and factors to consider when calculating actual delay including institutional delay, severity of offense, referred to a MPIC doc about speeding being dangerous and approx 25 deaths per year…

Mr. Murray made arguments that I had deliberately delayed (sword vs shield) which the SC has never permitted (he referred to the affidavits mentioned above of my Facebook posts and CBC News story.  That I didn’t provide much in my affidavit to prove I was prejudiced enough.

I argued that it was not my intention to use 11b as a sword and that one of the things I strongly stand against is manipulating or misleading and is something that is happening to the public by some of our leaders. I said as soon as I got the package with his arguments and read them I updated the posts to make it clear the accused need make an effort to reduce delay (ask for earlier date (I didn’t agree but we don’t want to misdirect the public).

Mr. Murray was arguing specifically the section I shared with instructions from Robert S. about filling application for delay motion.  “if you file motion early they will try and find an early spot for you and if you file late they may deny the application. As well as the CBC News story saying “I was looking to get my ticket off the books).

Mr. Murray argued the posts and news story indicated I was aware of the delay and was purposefully delaying filling the motion till the last minute and encouraging others to do the same.  That this was using 11b as a Sword and not as a Shield as intended which has never been allowed by the Supreme Court.

Luckily the articulating student who did the affidavit didn’t realise they included a older post as well where I left the thanks to Robert S for sharing this part.  I honestly didn’t think much about it one way or another for what Robert had written when I copied and pasted it and shared.  This made it easier to I defend.  Later during Mr. Murray’s responses to my defense of this he referred to the older date on some of the post and that it indicated I knew long before filing. The Judge asked me again later about it explained how posts contents can be edited after posting but the original date posted remains.

When the motion was being heard I defended this along with related arguments from Mr. Murray about using 11b as a Sword.

Including I assumed if there was and earlier court date available they wanted me to take they would have wrote me.

Note: The Crown’s office did phone me but not to offer earlier trial just if I understood the options on the back of the ticket (ie plea and payment options) and I said yes so they offered 15 min meeting with Crown but I declined as I wanted the matter heard by the Justice, present evidence and question the officer which I told them.  Mr. Murray nor Judge Krahn asked about this so I didn’t inform them as it wasn’t relevant.

I said I was still hearing from people regularly getting court dates far exceeding what I felt was unreasonable.  I referenced points in the recent decisions and case law to re-enforce this right to expect written correspondence if new date available as that was the initial notification method.

Judge Krahn agreed and even asked Mr. Murray did the Crown make an attempt to contact me and he couldn’t comment other than referring to the Crowns 4A project (what they calling the push to reduce back log) had been setup and he refereed to an affidavit from the person who leads the project.

Note: It was vague and only said it was taking steps to reduce the backlog and doesn’t describe it how we know it being used.  i.e. as I described it above when they called me.  They hoping the public will accept meeting, then we have heard members say they mislead about going to trial and offered reduced fine to change plea and pay.

Judge Krahn asked Mr. Murray if it has been helping and he had no evidence to present on this but the last time he talked to …. they said it reduced by a few months.

Note: I don’t know if the Crown directed to do this by the Province to get more revenue before they forced to stay all the offenses with unreasonable delay or they just doing it the reduce the back log.   I didn’t accuse them in the motion.

I did raise the concern the public has about this appearing to be a bribe and even calling it that and Judge Krahn said the courts have the right to plea bargain and always have.

I repeated in my response later or on closing that Mr. Murray never provided evidence there would have been and earlier date if I had thought to call.

In defense of the sword or deliberate delay I also argued I was waiting to hear what was happening with R. v. Grant appeal to see if it would be heard or not and didn’t find out till a week before I filled my motion.

Note: Grant and Segondia were announced in the media and expected appeal application to be denied.

I said I was disappointed to get the answer that it was allowed to be heard but wasn’t till Feb 2017.  Even though you could argue under Jordan that simple non criminal matters (e.g. traffic) should be dealt with in less than the min ceiling for simple criminal matters 18 months.

I said I thought the Province being slow to file appeal notice and then distant appeal hearing was a stall tactic to avoid dealing with the root cause.

I didn’t accuse them of using it to salvage $afety revenue (unlawful tax as per …SCC) but now that I know about this I should have and referenced this decision.

Mr. Murray referenced affidavits of some of my posts on ourcFacebook page and my Blog (how to file delay motion incl if you file early they will try and find earlier date and if late they may deny and how to contact crown) as well as CBC news story interviewing me after Grant decision that mis quoted me “I was trun

I tried to argue these were irrelevant but wanted to be careful as I was relying on some evidence that was not represented by the author.

Judge Krahn asked me to clarify including if I was saying it wasn’t me.  I didn’t want to lie and said it was my posts but they are a collection of info provided to me from many members and although I try to read it all I didn’t always read every detail.  I often copy and paste.

The Judge said she interpreted my saying it was irrelevant as saying it should not be admissible.

I supported this by referring to an older post they included in the affidavit as well that had the same points the Crown referred to but it started with thanks to Robert Solmundson for researching and providing these instructions.  Luckily the articulating student they got to do the research and affidavit didn’t notice this.  My arguments would have had less credibility if it had been omitted.  The Crown argued the dates on the posts indicate I new about this

I was quoted saying I was hoping this decision would lead to ticket taken off the books. This was a misquote by the media as I stated I hoped this led to changes to address the  cause of the delays.

I argued that my recollection of import and details like what the officer said was impacted by the delay and I argued the same for officer if it went to trial and I questioned him about important details missing in notes about testing lidar device etc …
I supported these with decisions and caselaw.

I used several arguments and referenced decisions and other caselaw that stressed the importance of the publics respect,  interest and confidence in the system in my rebuttal to the Crown’s assertion the delay was institutional and not unreasonable due to the known and systemic delays that will take time to resolve.

The package I got from the Crown incl caselog with at least 8 other delay motions plus he offered to add Grant and Segondia when I said I would be relying on them is a good asset for us.  Nicer to read then have to search and read online or print.

Mr Murray pointed out that these motions involved similar length delays to mine with around 17-19 months

Mr Murray argued when there is some motions stayed and some denied that it indicated with no offense an error(s) occurred in tge Judges decision and it is recommended to rely on the longer list.

I disagreed and think that the two stayed were just better prepared (represented) and same with mine albiet representing myself on behalf of the public and with some help from you guys and Markus (albiet not directly).  But I forgot to argue this by the time he finished arguing other points and I countered them but assume the Judge was able to reason this.

My evidence included Edm 30k SZ and Grant & Ken engineering studies,  several documents from MPIC, WPS pe stats, photo ticket from Grant and most important the City Audit report of pe from 2005 / 2006 and grant appeal factum from the Crown.

I needed to rely on these as they along with my arguments clearly demonstrated my safe driver rating, what penalties mpic would apply if I had demerits assessed if unfairly convicted, artificially reduced 30k and 50k zones, without flasing lights in school zones only when kids present (all 3 against engineering studies and recommendations)

Primary focus of Photo enforcement supposed to be measurable safety improvement with reduction in violations, requirement of this in conditions of authority, secondary component of revenue to help meet budgeting challenges, false and misleading stats provided during initial photo enforcement consultations that our MLA’s and Councillors relied on to ammend legislation and bylaws.

The contract and procurment process not followed,  revenue sharing agreement, much higher revenue forcasted than achieved and losing money due to less violations than expected.  Transport canada motor vehicle fatalities per capita stats lists MB as among lowest in Canada even before pe implemented and despite upward trend in violations which indicates we have more safe drivers than many of the other Provinces. WPS stats showing pe and WPS violations have been trending up to the point they out of control which means the program is not meeting it’s primary focus and the focus is revrnue

I included a grant ticket for 64 in an artificially reduced 50k.  I said the vast majority of tickets are unfair due to engineering deficiencies not compliant with national engineering standards required by law in Ontario and elsewhere but ignored Winnipeg by some of our leaders at the City and Province. That engineers are required by legislation to do what they can to protect the public.

This allowed me to argument that the Crown can’t argue
– mpic speed kills doc saying speeding is dangerous and leading to 25 deaths / year in my case and other offenses targeting degicient engineering and the average safe driver.  I explained the 85th percentile and noted this explained better in the two engineering reports
– Institutional delay is reasonable due to systemic delays that will take time to change.  The root cause of the delays is known but being ignored in the name of safety revenue.  It will not take time to change this.

Mr Murray summarized his position.

Closing
Short summary of my arguments and asked the judge to stay this matter and call for all traffic matters unreasonably delayed by the Crown and institutions more than 4 to 6 months or more than 6 months as in Grant or Segondia to send a clear message that the courts will no longer tolerate being misused to abuse the public.  And for her to call for the City and Province to address the root causes I had raised and provided evidence of.

Mr. Murray didn’t object or comment but not sure if he permitted.

Based on the following I think I have her support.

She said what I was asking for has consequences that even I said I stood against (those that were avoiding taking responsibility for their actions)

She said X 1000 of DUI’s being dropped in ON.  I said a clear message needs to be sent to help restore trust and confidence in our courts and to help bring the much needed chages
I asked her to find the right balance.

We will find out on the 24th.

—————

It was already past 4 before closing (over 2hrs for the hearing) so I didnt argue MPIC funding police in school zones and at MPIC’s most dangerous intersections with known engineering deficiencies,  while limiting funding for education, FIPPA responses incl MPI and City Agreement for Pilot safety program and communication involving warning signs and  “enhanced enforcement” at Bishop @ St Mary’s and Kenaston @ McGillivray.
(intentional misinterpretation as marked and unmarked cars parked illegally and dangerously including several photos). But I submitted the evidence for it and some of it on the arguments I provided them so not sure if the Judge can review and consider in her decision.

I wanted to include APEGM leaked report and coverup version and argue this only reinforces the clear trend in putting revenue before public safety and interest but didn’t want to affect the other trial we have coming up.

Regards,
Kevin

About Kevin Yaworski

I use my blog to write about things I find interesting or that I think others should know about.
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