R v. Romero, 2018 ONCJ (unreported)

Ontario Court of Justice

Date: December 13, 2018

Between:

Her Majesty the Queen Prosecutor

– and –

Carlos Romero Defendant

Ruling on 78.1(1), Part I Offence under the Highway Traffic Act

Heard on: September 21, 2018

Motion Judgment filed: December 13, 2018

Decision filed: December 13, 2018

Gerry Manno Justice of the Peace Central West Region

For the Crown (Prosecution): M. Good

For the Defendant: A. Henderson

Materials Cited

Statutes Cited:

• Ontario Highway Traffic Act, R.S.O. 1990, c. H.8, s. 78.1(1)
• Provincial Offences Act, R.S.O. 1990, as amended

Cases:

• R v. McGee, 2014 ONCA 358 , 2014 O.N.C.A. 358 (O.C.A.)
• R v. B.(G.), [1990] 25 S.C.R. 30 (S.C.C.)
• R v. S.D., 2011 SCC 14 , 2011 S.C.C. 14 (S.C.C.)
• R v. Kahnamoui [2010] O.J. No. 3497 (O.C.J.)
• R v. Lifchus, [1997] 3 S.C.R. 320
• R v. W(D), [1991] 1 S.C.R. 742
• R v. Sullivan (1968), 3 C.R. (N.S.) 132 (O.S.C.)
• Toronto (Metropolitan) v. Beck (1990), 23 M.V.R. (2d) 61 (O.H.C.J.)
• Browne v. Dunn (1893), 6 R.67 (H.L.)
• Chow v. York (Regional Municipality), 2018 ONCJ 818

Books Consulted:

• S. Hutchinson, Rose D., Downes, P., The Law of Traffic Offences 2nd ed. (Carswell, 1998).
• Best, A., Wigmore on Evidence 4th ed. (Aspen Publishers, 1995).
• Libman, E., Libman on Regulatory Offences in Canada (Earlscourt Press, 2002).
• Stewart, S., Stewart on Provincial Offences Procedure in Ontario 2nd ed. (Earlscourt Press, 2005).

Introduction

1This began as a trial on a Part One offence under the Highway Traffic Act (HTA) wherein Mr. Carlos Romero was charged in a Certificate of Offence (CO) number 7179568B with "holding a handheld communication device" while driving on a Highway (as defined by the HTA), contrary to 78.1(1) of the HTA. This charge is considered as a strict liability offence wherein if the actus reus is proven by the prosecution beyond a reasonable doubt then the onus turns to the Defendant to prove on a balance of probabilities whether or not they were duly diligent or believed in a mistaken set of facts.

2This charge dated back to May 16, 2018 at Dundas St. and Neyagawa Boulevard in the town of Oakville. This trial began before me on September 21st, 2018 and concluded with written reasons filed with the court on December 13, 2018. The Defendant, though not present at trial, was represented by Ms. Henderson – a paralegal registered under the Law Society of Ontario (LSO) formerly known as the Law Society of Upper Canada (LSUC).

3Following arraignment, a plea of not guilty was entered. Officer Springstead, the charging officer and witness for the Prosecution, took the stand and commenced with the usual process of qualifying the use of his notes.

4In totality, the Officer testified providing evidence on all of the elements of the Offence in question. Inter alia Officer Springstead in reviewing his notes and independent recollection testified (viva voce) that the time that the Offence occurred was 4:53 p.m. on a May 16th afternoon. However, the Provincial Offence Notice (PON) he wrote on the date of the Offence indicated a time of 4:36 p.m. on that same date, which implied a discrepancy of 17 minutes between the Officer's viva voce testimony and the time written on the PON.

5At the close of the Prosecution's case, the Defendant brought a motion for a directed verdict (motion for non-suit) on the basis of this discrepancy in the time of the Offence. After some consideration, the court ruled against this motion giving oral reasons that the witness provided some evidence as to all of the required elements of the Offence and the motion for a non-suit would necessarily fail as a result of this argument. The evidence at this stage need not be perfect or detailed. Evidence was not to be weighed or assessed in any way at this juncture of the trial. The question the court must ask itself is whether or not there is some evidence on all of the essential elements of the Offence to be able to later, render a verdict.

6The Prosecution was permitted to continue with its case until the close of its evidence. At the close, Ms. Henderson notified the court that the Defendant was calling no defence. The court invited both parties to make final submissions.

7Both sides agreed (that there was no dispute) as to the balance of the elements of the Offence and the only contentious issue was the discrepancy of time between the viva voce evidence of the Officer and what he recorded on the PON. The Defence asked the court to find that such a discrepancy raised the spectre of reasonable doubt and as a result using the principles found in R v. W.D., the court should find on behalf of the Defendant and dismiss the charge. The Prosecution responded by saying that the time of the offence is not an essential element and that the court should dismiss the Defendant's motion. It should also be understood that during the trial the Prosecution did not apply to the court to amend the time using Section 34 of the Provincial Offences Act (POA) nor did the court do so on its own motion.

8As such, the court was left to consider whether or not the discrepancy in time as well as any other evidence heard by this court raised reasonable doubt. Furthermore, the court was compelled to consider whether or not the time of the offence an essential element for this provincial offence.

Case Law and Analysis of the Issues

9As stated in the Law of Traffic Offences (supra) pg. 37:

"It is important to remember that the central purpose of the modern procedural statutes like the Provincial Offences Act (R.S.O.)1990, c.P.33, has been to eliminate unnecessary procedural 'technicalities' from regulatory prosecutions. It was not intended that a purely formal defect should be fatal to a charging document." (see also R v. Sullivan (supra) and Toronto (Metropolitan) v. Beck (supra))

10Section 34 of the Provincial Offences Act (POA) gives the court broad powers to be able to amend a charge to cure defects. 34(1) specifically states:

"The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,

(a) fails to state or states defectively anything that is requisite to charge the Offence, or;

(b) does not negative an exception that should be negatived, or;

(c) is in any way defective in substance or in form."

11Furthermore, the Law of Traffic Offences explains that:

"(2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at trial.

(3) A variance between the information or certificate and the evidence taken on the trial is not material with respect to,

(a) the time when the offence is alleged to have been committed if it is proved that the information was laid or certificate issued within the prescribed period of limitation, or;

(b) the place where the subject-matter of the proceedings is alleged to have arisen, except in an issue as to the jurisdiction of the Court.

(4) The court shall, in considering whether or not an amendment should be made consider,

(a) the evidence taken at trial, if any;

(b) the circumstances of the case;

(c) whether, having regard to the merits of the case, the proposed amendment can be made without an injustice being done."

12Thus, Section 34 of the POA gives the court broad powers to amend but also cautions that any amendment must not violate the Defendant's right and ability to make full answer and defence nor should the amendment in question result in the deprivation of a right normally accorded or available to the Defendant. I would add that any amendment must not be seen to violate the Defendant's rights. This would be similar to the approach one takes when considering actual bias and the apprehension of bias that may apply to any particular decision one makes.

13As mentioned earlier during the course of the trial, the Prosecution did not make application to the court under section 34 of the POA to have the time amended nor did the court do so on its own motion. Furthermore, the Defence did not question the Officer on the discrepancy beyond confirming what the Officer had written in his notes versus what was said in court on the witness stand.

14One might successfully justify amending the Provincial Offence Notice (PON) even at this late stage since 'proceedings' have not yet concluded (in accordance with the wording provided in the POA). Even though it may be jurisdictionally permissible to amend once the Defendant raised the issue themselves some might see this to be 'heavy-handed' or lead others to conclude that there was an apprehension of bias on the court's part. As such, the court concluded that it would not be amending the certificate at this stage of the proceedings given this possible perception and given the considerations outlined in paragraph 11, sub (4) above.

15Furthermore, in R v. B.(G.) and R v. S.D. (supra) in specific criminal trials, the date of the offence was ruled as not being an essential element of the Offence. The Accused knew of what case to meet and the date of the offence played no part in the Defence raised. Convictions were upheld in those cases.

16In R v. McGee (supra) the decision relied on the Criminal Code of Canada (CCC) section 601(4.1)(a) which is a similar provision to POA s. 34(3)(a) which says:

"(3) A variance between the information or certificate and the evidence taken on the trial is not material with respect to,

(a) The time when the Offence is alleged to have been committed, if it is proved that the information was laid or certificate issued within the prescribed period of limitation; etc."

17In R v. Kahnamoui (supra), His Worship Dechert on a Part III offence of 'stunt driving' ruled that the discrepancy between the time in the summons and the time stated in evidence did not raise reasonable doubt as to the accuracy and reliability of the officer's evidence in accordance with the rule or principle in Browne v. Dunn (supra) because the officer was not cross-examined with respect to the discrepancy in accordance with Browne v. Dunn.

18This court agrees with the prosecution's submission that despite there being no request to invoke section 34 of the POA to amend the certificate, the timing of this offence at this particular date and time of day was not an essential element of the Offence (see also section 601(4.1) C.C.C; R v. B.(G.) at para. 37-38 and 43; R v. S.D. at para. 1-2). A possible exception to this rule might arise in a case where the time is critical and the Accused/Defendant may be misled by the variance and therefore prejudiced in his/her defence (see R v. B.(G.), (para. 38, supra)).

19This is reaffirmed in the case of Chow v. York (supra) where a POA section 9.1 application on appeal was being addressed by H.H. Kenkel in a November 2018 decision wherein he stated"here the alleged deficiency is the failure of the officer to note whether the time of 11:12 was a.m. or p.m. There's a box for that beside the time and no box to indicate you're using a 24 hour clock as officers often do. The time of the offence is not an essential averment and is not relevant to the defendant's decision whether or not to contest the alleged offence." (see para. 13).

20On the witness stand, the officer testified to the time being 4:53 p.m. compared to the time he wrote some months earlier on the PON stating the time of the Offence was 4:36 p.m. This represented a discrepancy of approximately 17 minutes but did not affect the officer's vision nor observation of the Offence being committed. Weather conditions were not at issue nor did the difference in time materially change or influence the observations nor the preparation of a defence to this charge. In short there would be no prejudice from adopting one time over the other.

Ruling on the Motion and the Importance of 'Time' as Being an Essential Element

21Given the common law generated by the higher courts with respect to the consideration of time as an essential element, and employing the principle of stare decisis, this court rules that the time in this particular case is not an essential element of the Offence as charged. Considering this background as well as the specifics given during the trial, the circumstances surrounding the offence and the importance of courts to rule in favour of substance over form in the POA, any consideration of the time differential would speak to the weighting of such evidence by the trier of fact.

Decision of the Court

22Upon resumption of the trial, the Defendant called no evidence or raised no defence and following closing submissions the court was poised to rule on the matter.

23The balance of the officer's testimony was incontrovertible and in the court's opinion, the Prosecution had proven their case beyond a reasonable doubt. No defence was mounted against this charge providing no other versions of the narrative to compare to the Officer's version of the events on that date, time and place. Ordinarily the lack of an articulated due diligence defence does not prevent the court from examining the evidence and coming to the conclusion that a defence of due diligence or mistake of fact has been either established or has failed. However, the court has not heard any evidence to be able to assess such a defence. As such, and after due consideration, a due diligence defence, absent argument, would fail in this particular case given the evidence this court has heard and accepted.

24In totality, following the consideration of the balance of the officer's evidence and no other version of events presented, this court finds that the Prosecution has met their burden beyond a reasonable doubt. As such, the Defendant is found guilty of this charge and a conviction shall be entered against the Defendant in this matter. All parties are now invited to make submissions on sentencing.

25All respectfully submitted this 13th day of December, 2018.

Gerry Manno