A judge who’s actually read the Charter

Genco Guneser is clearly one of the few Victorians who’s heard that Victoria has a rights Charter. Litigating in person in the Supreme Court in an attempt to get criminal charges relating to an altercation with his taxi passengers dropped, he apparently relied repeatedly on his Part Two rights. It’s hard not to see their relevance to his complaints. He says that:

  • the passengers he assaulted called him ‘a dirty Arab’
  • his trial (for charges first laid in 2003) is unduly delayed (in large part, it seems, because of the unavailability of the prosecution’s chief witness)
  • the police failed to give him evidence relevant to his defence (including bank statements that might back up his claim that the passengers were faking their claim that an ATM wasn’t working and a forensic report that cast a lot of doubt on the claim that he struck a female passenger with a torch)
  • his magistrate didn’t give him a fair chance to elect to have charges heard summarily
  • the prosecution improperly added a new charge of causing serious injury to stop his case from being heard summarily
  • his magistrate is biased against him
  • his magistrate didn’t appropriately adjourn his hearing to allow him to seek a new lawyer
  • his magistrate appointed a friend of the court to make arguments on his behalf that he didn’t agree with

Alas, for Guneser, he was before a judge who had actually read the whole Charter and knew that it doesn’t provide a remedy for every breach of a right. So, Guneser v Magistrates’ Court of Victoria is a long-awaited good judgment on the Charter.

The Crown, responding to Guneser’s application for judicial review of various actions by the magistrate, relied on  s. 49(2), the  Charter’s improvidently conceived and ambiguously drafted transitional provision for ‘proceedings’. He cited the Williams judgment to argue that s49(2) applied, as Guneser was charged before (well before) the magic cut-off date of 1/1/7.  However, Williams didn’t involve a ‘judicial review’ application and the judge would have to decide, for the first time, whether such an application is a separate proceedings for the purpose of s49(2) (meaning that it wouldn’t be exempted, as it was commenced after his committal early last year) or whether it is bundled with the underlying criminal proceedings (meaning they are exempted from the Charter, as they commenced years before 2007.) As it happens, I think the latter is the correct reading, although there’s still more issues to be argued.

Fortunately, though, Habersberger J turned his attention to a much more relevant transitional provision:

49(3) Division 4 of Part 3 does not apply to any act or decision made by a public authority before the commencement of that Division.

This provision relies on a different cut-off: 1st January 2008. Justice Habersberger correctly noted that Guneser’s complaints were all about various acts by public authorities, including the a police officer, the OPP and – for at least some its actions – the Magistrates Court of Victoria. Having identified these acts, the judge observed:

all of the acts or decisions made by public authorities which Mr Guneser wishes to attack in this proceeding were made before 1 January 2008. Thus, in my opinion, he has no right to seek any relief or remedy in respect of those acts or decisions under s.39 of the Charter. 

This pertinent observation stands in stark contrast to Bongiorno J’s complete failure to refer to this provision in basically identical circumstances in the Gray case and Bell J’s inability to get the relevant dates right in the Ragg case. Hopefully, future judgments will take heed of this one.

That being said, I have some quibbles. I think s49(3) doesn’t apply – or at least, doesn’t apply so clearly – to one of the ‘acts’ that Guneser was complaining about (and, it seems, is probably his most compelling complaint): the failure of the police and prosecution to bring his case to trial for so long (in large part, it seems, because one of Guneser’s alleged victims had disappeared off to Perth.) Most of that delay happened before 1/1/2008, of course, but it is ongoing; in Canada, courts held that a remedy for all the delay became available as soon as their Charter (which was also not-retroactive) commenced (see R v Antoine (1983) 41 OR (2d) 607, 613, cited by Hogg.)

So, a full answer to Gunesers complaint would require relying on s49(2) (and excluding King J’s specualtive argument about s6(2) in Williams) or relying on s39 (which, contra Bongiorno J, provides only provides non-Charter remedies for Charter breaches.) On the s39 point, Habersberger J’s other holdings that there are strict limits on common law judicial review as a remedy for committal – and committal-related – ‘administrative’ decisions by prosecutors and magestrates in indicatable matters  would be relevant. Those rulings, of course, show how little the Charter will affect court proceedings, whether they fall within the definition of public authority or not.

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