R. v. Hon, 2025 ONCJ 695
Court File No. 4911-999-00-2137401X-00
4911 999 00 0302339Z-00
4911 999 00 2148561X-00
4911 999 00 0296685X-00
ONTARIO COURT OF JUSTICE
YOON T. HON, KA-WAI A. CHEUNG, JIELAN WANG and WAN Y. OU
Appellants
v.
HIS MAJESTY THE KING
Respondent
RULING
BY THE HONOURABLE JUSTICE J. SICKINGER
on March 17, 2025, at NEWMARKET, Ontario
APPEARANCES:
M. Mahadeo Paralegal on behalf of the defendants
C. Gabriel Provincial Prosecutor on behalf of the Respondent
Reasons for Judgment
SICKINGER, J: (Orally)
Yoon Hon, Ka-Wai Cheung, Won Ou, and Jielan Wang were each convicted of one count of speeding pursuant to section 128 of the Highway Traffic Act. All four have appealed those convictions.
In each case the agent at trial brought an application pursuant to ss. 7, ll(d) and 24(1) of the Charter. Those applications were unsuccessful in each case, each appeals the denial of the Charter application. There are also other discrete grounds of appeal in each case.
I propose to deal with the issue of the Charter jointly first, and then deal with each appellant separately. The following are the basic points of law which apply to all four matters before the court.
These appeals are conducted pursuant to ss. 136 and 138 of the Provincial Offences Act.
The standard of review on these proceedings was set out by the Supreme Court of Canada in Housen v. Nikolaisen. The standard of review for a question of law is one of correctness.
The Court stated that in the case of an error in law, the appellate judge is free to replace the opinion of the trial judge with its own. The Court further sets out the standard of review for findings of fact, holding that findings of fact are not to be reversed unless it can be established that there is a palpable and overriding error (see: Housen v. Nikolaisen 2002 SCC 33, [2002] 2 SCR 235, at paragraphs 8 - 10).
Section 138 of the Provincial Offences Act holds that; "upon an appeal, the court may affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial".
Any jurist who makes a ruling is required to provide reasons sufficient to allow the parties to understand the ruling and to allow for meaningful appellate review. The sufficiency of reasons should be analyzed functionally and contextually. A trial court should not be held to a standard of perfection. The failure to provide adequate reasons is an error in law (see: R. v. Sheppard, 2002 SCC 26).
The test for an unreasonable verdict has been established by the Supreme Court. The test asks whether or not “the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered”. The test is equally applicable to a judge sitting at trial without a jury.
Justice Arbour, speaking for the Court in Biniaris held as follows,
"The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of a single judge at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis that will serve to explain the unreasonable conclusion reached and justify the reversal ... [T]he Court of Appeal often can and should identify the defects in the analysis that led the trier of fact to an unreasonable conclusion. The Court of Appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge revealed that he or she was not alive to an applicable legal principle or entered a verdict inconsistent with the factual conclusions reached."
(see: R. v. Biniaris (2000), 2000 SCC 15, 143 CCC (3d) 1, at paragraph 37).
Dealing now with ss. 7 and ll(d) as argued in Hon.
As set out above, there is one joint issue for all four parties. In each case, the prosecutor proceeded by way of certificate evidence under s. 48.1(2) of the Provincial Offences Act.
An application was brought pursuant to ss. 7 and ll(d) of the Charter asking the Court to find that the section creates a Charter breach by not permitting the Defendant to make full answer and defence.
The appellants argued that by not requiring the officer to be present, the use of certified evidence denies the right to a fair trial in cross-examination. The appellants sought either a stay of proceedings or a summons from the court to have the officer present for crossexamination.
The Respondent argued both at trial and on appeal that s. 7 does not apply to regulatory proceedings and that there is no infringement of the right to a fair trial as the Provincial Offences Act permits cross-examination of the officer once certain criteria are met.
In Hon, Justice of the Peace Levita denied the application giving reasons on May 19th, 2023. In Wang, Justice of the Peace Kulmatycki denied the application on June 5th, 2023. He relied on the decision in Hon.
In Ou, Justice of the Peace Rotondi summarily dismissed the application without hearing submissions relying on Hon and Wang, on June 13th, 2023.
In Cheung, Justice of the Peace Martin dismissed the application, relying on Hon and Wang on September 20th, 2023.
Section 48 permits the reception of certificate evidence in speeding cases. The evidence is proof of the fact certified to in the absence of evidence to the contrary. It does not remove the onus on the prosecution to prove the case beyond a reasonable doubt.
The officer who provides certificate evidence is not required to attend except as provided for under s. 49(4) of the Provincial Offences Act.
Under s. 49, the court can compel the officer to attend to give evidence where it is in the interest of justice and necessary to ensure a fair trial. Section 46(2) of the Provincial Offences Act entitles the defendant to make full answer and defence.
Justice of the Peace Levita found in Hon that s. 7 did not apply to absolute liability offences, relying on R. v. Polewsky, 2005 CanLII 38742 (ON CA), 2005 202 CCC (3d) 257 from the Ontario Court of Appeal, and R. v. Pontes, 1995 CanLII 61 (SCC), 1995 3 SCR 44 from the Supreme Court of Canada.
He also held that there was no violation of the right to a fair trial, relying on a number of appellate level decisions which dealt with similar legislative schemes that permitted for the introduction of certificate evidence (see: Waterloo Regional Municipality v. Yan 2004 CanLII 73252 (ON CA), [2004] OJ No 4012; and Cochrane v. Ontario (Attorney General) 2008 ONCA 718, 92 OR (3d) 321).
His Worship provided clear and cogent reasons for denying the Charter application. The introduction of certificate evidence has been upheld by the Court of Appeal in the two cases set out above.
While those cases do not deal with speeding, they are nonetheless analogous, and instructive. The Legislative schemes are similar to that which is the subject of this application, and I see no reason to depart from the instruction given by those Courts.
There is no error present in His Worship's decision which would permit this Court to overturn his ruling, and I find that he was correct in law in dismissing the Charter application.
Having established the general proposition that the Charter application in Hon was correctly decided, I will now deal with each individual case.
Firstly, dealing with the remainder of Mr. Hon’s appeal.
In addition to submitting that His Worship ruled incorrectly on the Charter application, the appellant submits that His Worship should have adjourned the matter to permit the officer to be cross-examined on the certificate evidence.
He argues that the Justice of the Peace permitted the prosecution to ask irrelevant questions during cross-examination of the appellant and further that the verdict was unreasonable. The first ground of appeal is dismissed given my above finding that the Charter application was properly decided.
During submissions on the Charter application, the Appellant asked to have the officer present to cross-examine them as to the testing of the radar device used.
The Appellant submits that the officer's notes only indicate "radar test at 09:23 hours" but do not indicate if the device passed, or what testing procedure was used.
Further, the Applicant argues that the officer’s notes do not set out how he was aware of the 60 kilometre an hour speed limit, which is set out in the certificate of evidence.
The Appellant wished to cross-examine the officer on these points to raise a reasonable doubt as to the accuracy of the certificate.
Regardless of the ruling on the Charter application, the Provincial Offences Act would permit the court to have the officer present for cross-examination if the conditions set out in
s. 49 are met.
The Justice of the Peace refers to Yan when giving his ruling as to whether or not the officers should attend for cross-examination. The Court of Appeal in Yan dealt with a very similar legislative scheme for certificate evidence in the case of red light cameras. His Worship found that the test set out in Yan is applicable here, and I agree.
In that case, the Court of Appeal held that the defence must set out:
"Some reasonable and legitimate basis for examining the officer, some valid reason why cross-examination of the officer would be necessary to ensure a full fair trial and a full defence."
The Court goes on to state that the defence must show some material irregularity in the certificate evidence, or: "There is some proposed defence evidence that could raise a reasonable doubt as to the accuracy of the certified statements." (see: R. v. Yan at paragraph 20).
The test in Yan is not overly onerous on the defence. It simply means to weed out requests based on nothing more than an assertion that cross-examination is necessary for a fair trial without some evidentiary basis (see: Yan, at paragraphs 16 and 17).
His Worship goes on to hold that the prosecution is not required to prove that the speed measuring device was properly tested, and that this is not an essential element of the offence. I agree with His Worship on this point.
That being said, the fact that the prosecution is not required to prove a fact does not preclude cross-examination on it or mean that evidence on that fact could not cause a reasonable doubt.
His Worship then goes on to state that the defence must show some evidence that there is a material irregularity with the certificate in order to have the officer attend.
He omits the alternative set out in the test in Yan, that there is some proposed defence evidence that could raise a reasonable doubt as to the accuracy of the certified statements.
His Worship finds that the omissions in the officer's notes, i.e. that he did not record whether or not the device passed the testing procedure or what testing procedure was used could not constitute a material irregularity in the certificate. His Worship does not turn his mind to whether or not that evidence could raise a reasonable doubt as to the accuracy of the certified statements.
His Worship rules that the officer will not be summonsed to attend. I find that the Justice of the Peace erred in law when applying the test set out in Yan. It is not a two-part test. It sets out two alternatives, either of which can require the officer to attend for cross-examination.
The Court failed to consider that errors in the testing procedure could raise a reasonable doubt as to the reliability of the information contained in the certificate even if the certificate is valid on its face.
This is evidence which could constitute evidence to the contrary. Evidence to the contrary need not come from the defendant but can come through the cross-examination of prosecution witnesses.
The officer's notes do not detail the testing procedure which was undertaken, or the results of that test. The request is based on information contained in the disclosure and not a bold assertion that the officer should attend. This omission in the officer's notes is sufficient, in this Court's opinion, to meet the test set out in Yan for the officer to attend.
As a result, Mr. Hon was not permitted the opportunity to make full answer and defence as required by s. 46(2) of the Provincial Offences Act.
There are other grounds of appeal before this Court, but given this finding, it is unnecessary to address them. I grant the appeal and find that it is necessary to order a new trial in order to satisfy the ends of justice. So that concludes my judgment then with respect to Mr. Hon.
Moving on now to Ms. Wang. The Appellant, Wang, argues two main grounds of appeal. Firstly, that the Charter application was incorrectly decided and, secondly that the verdict is unreasonable.
As set out above, the Justice of the Peace relied on His Worship’s decision in Hon to deny the Charter application. The same Agent argued the applications and the argument was very similar to that in Hon. Fulsome submissions were made on both sides.
I have found above that Hon was rightly decided in terms of denying the Charter application. His Worship, in this case, was not bound by the Hon decision but was entitled to rely on it after finding that it was correctly decided. Therefore, the first ground of appeal is dismissed with respect to Ms. Wang.
The Agent in Wang did not set out any particular reason to have the officer attend for crossexamination as was set out in Mr. Hon's case.
His Worship's ruling on the Charter application was delivered in writing on June 5, 2023. The trial commenced the following day on June 6th, 2023. The defence did not seek an adjournment to have the officer or any other witness attend.
The prosecution proceeded by way of certified evidence. The certificate indicated that the appellant, Wang, was operating a motor vehicle at 80 kilometres an hour in a 60 kilometre an hour zone at Stouffville Road and Bridgewater Avenue in Richmond Hill on February 1st, 2022 at 10:41 a.m. No further evidence was called.
Ms. Wang testified with the assistance of a Cantonese interpreter. She testified that she was not driving on Stouffville Road. She stated that she was driving on Bayview Avenue and on 19th Avenue.
She stated that she was on 19th Avenue when she noticed a police cruiser behind her with its sirens on. She agreed that she was given the ticket that brought her to court when she pulled over for the officer at that time.
Ms. Wang testified that the stretch of road was a 70 kilometre per hour zone and that she was driving "that rate of speed". She stated that she was bringing lunch to her son and that typically she drives on 19th Avenue instead of Stouffville Road because there was heavy traffic, and she was aware of a bad accident in the past which took place in the area. She says that she tries to avoid that stretch of Stouffville Road.
Ms. Wang was then asked in-chief if her son was in school when she was bringing him lunch. In response, she stated that she was on her way to work that day. Ms. Wang was asked in crossexamination to describe the route she takes to work. She replied that she takes 19th Avenue to Woodbine and makes a right turn on Woodbine and then continues to work.
At times, the interpreter does not interpret what Ms. Wang is saying, and at one point tells the court that she is not responsive to the prosecutor's question. It is a bit difficult to determine what is being directly interpreted. No one raised issues with the interpretation during the trial, or on appeal.
Ms. Wang testified that she drove the stretch of road almost daily for the 12 years that she lived in the area. She said she is very familiar with the speed limit and would not drive over 70 as there are often police.
She stated that she constantly checks the speedometer while driving. Ms. Wang could not give the exact address for the restaurant where she worked but described its location on Woodbine Avenue.
The Court referred to three inconsistencies in Ms. Wang's evidence outlined by the prosecution in submissions. One, that the route she took varied. Two, that she said she was going 70, then changed it to "different rates of speed", and that the times and locations where she checked her speedometer were not consistent with the motor vehicle stop.
The Court refers to the test in W. (D). and correctly identifies the three parts. The Court states that it is satisfied that the elements of the offence exist and that it does not believe Ms. Wang's evidence. The Court states that it rejects her evidence based on the inconsistencies. The Court does not outline those inconsistencies or how they caused the Court to reject her evidence.
There is one very significant inconsistency in the evidence between Ms. Wang and the certificate. The certificate says that she was on Stouffville Road, Ms. Wang says that she was on 19th Avenue. The Court does not address that inconsistency at all in its reasons.
This Court does not see all of the inconsistencies outlined by the prosecution in its submissions. Ms. Wang does not vary the route that she was driving that day. She does testify to different rates of speed, but it is somewhat difficult to determine what portions of the drive she is referring to. The questions asked of her are not always as clear as they could be.
I agree that Ms. Wang is inconsistent in that she says first she is taking lunch to her son, and then that she was going to work at another time. She confirms further on in her evidence that she was in fact on her way to work.
The evidence of an accused person must not be treated or weighed differently from that of any other witness (see: R. v. Laboucan, 2010 SCC 12, [2010] 1 SCR 397).
The trial court is required to set out cogent reasons as to why it rejected Ms. Wang’s evidence. I appreciate that the traffic courts are extremely busy, and that jurists must rule on matters quickly from the bench as a matter of necessity, otherwise the process would grind to a halt.
When considering the evidence as a whole, I am not satisfied that the reasons provided address the nature of the inconsistencies such that it would cause the Court to outright reject Ms. Wang's evidence. It is not clear from reading her evidence that it is unreliable or incredible to the degree that the Court finds.
The failure to provide sufficient reasons is an error in law. The reasons provided do not properly permit this Court to assess the reasonableness of the verdict or the path taken to conviction by the Court.
I would give effect to the second ground of appeal. The appeal is granted and a new trial ordered.
Moving on now to the Ou matter.
The Appellant, Ou, argues that the Justice of the Peace erred in summarily dismissing the Charter applications without allowing the defence to make submissions, that the Justice of the Peace errored by not compelling the officer to attend for cross-examination, and by not permitting the accused to establish reasonable doubt by calling evidence.
In Ou, the officer was present on the day of trial on Zoom. That information is not contained in the transcript, but I understand from the representatives, and submissions that the Justice of the Peace was not going to permit the officer to testify on Zoom.
The Prosecution then indicated that it would proceed by certificate evidence, and therefore the Charter application would need to be argued. It is the Prosecution who was making the request to argue the Charter application jointly with the Defendant.
The Justice of the Peace - sorry. Can we mute whoever is talking, Madam Clerk. Thanks.
CLERK REGISTRAR: I'm not really ....
THE COURT: I think it’s Mr. Genova (ph)
CLERK REGISTRAR: Okay.
THE COURT: Because he’s not muted.
The Justice of the Peace asked the defence if there was any material irregularity in the certificate evidence which was not outlined in their written materials. The defence asks what the Court would deem to be an irregularity. Then, before the defence is given the opportunity to respond, or make any further submissions the Justice of the Peace summarily dismissed the application without hearing any submissions from either side as to the summary dismissal.
The Court relies on Hon and Wang to support the dismissal of the application. I note that these decisions are from the trial level and not binding on the Court. The Court then goes on to summarily dismiss the Defence request for the officer to attend, again, without hearing any submissions.
The agent for the Appellate seems confused at this point by what has occurred and asks the Court if they are then going to argue the motion. The Court indicates no.
Defence then goes on to make arguments that evidence to the contrary can come in through cross-examination of a Crown witness, or through a defence witness. The Defence then asks for an adjournment to have the Appellant attend the trial.
Without hearing any submissions as to the reason for having the Appellant present or hearing any submissions from the Prosecutor, the Court refuses the adjournment on the basis that,
“It’s a trial date. The Defendant knew that this was a trial date. The Defendant should have been here. You make a motion, and you expect the motion to pass and so you’re not ready for your trial. It’s a trial. It’s not a motion date. It’s a trial.”
The Court acknowledges that the Defence is not ready to proceed with trial but then forces them to proceed in any event.
A not guilty plea was entered on behalf of Ms. Ou and the certificate evidence was entered setting out that she was travelling 75 kilometres per hour in a 40 kilometre per hour zone in addition to other particulars. No other evidence was called.
The Court found that the certificate was proper on its face and that there was no evidence to the contrary and then finds Ms. Ou guilty.
The Court of Appeal in Greer sets out when the Court may summarily dismiss a Charter application. The decision to summarily dismiss a Charter application is usually entitled to deference from an appellate court (see: R. v. Blom, (2002) 167 CCC (3d) 32 (OCA) at paragraph 28; and R. v. Kazman, 2020 ONCA 22 at paragraph 16, leave to appeal refused, [2020] SCCA No. 58).
Deference will not be due if the trial judge conducted the hearing in such a way that it was so unfair as to result in a miscarriage of justice (see: R. v. Greer, 2020 ONCA 795, at paragraph 109).
The Accused must be permitted to make submissions before the summary dismissal occurs. The right to make submissions is essential to the right to make full answer and defence. The trial management authority to dismiss Charter motions summarily will not be exercised fairly if this authority is used without first permitting submissions from the applicant (again, see: R. v. Greer, at paragraph 110).
Where the trial judge is considering summarily dismissing an application because the Charter claim appears to be meritless, they must ensure that the Defence is aware of this and is able to summarize the anticipated evidentiary basis for the claim prior to the dismissal (see: R. v. Greer, at paragraph 111).
Further, the party asking for the summary dismissal has the burden of convincing the trial judge that the motion is manifestly frivolous. Here, no party asks that the motion be summarily dismissed (see: R. v. Haevischer, 2023 SCC 11, at paragraph 91).
The trial judge is also required to explain why a Charter motion is being summarily dismissed.
This is relevant in determining whether or not procedural fairness has been achieved (see: R. v. Greer, at paragraph 114).
While Greer speaks specifically to dismissing Charter applications, the guidance with respect to procedural fairness should apply to the dismissal of other applications as a matter of common sense.
It is clear here that the Justice of the Peace does not give the appellant the opportunity to make submissions prior to summarily dismissing both the Charter application, the application to have the officer present for cross-examination and the application for an adjournment to have the Appellant attend.
The Justice of the Peace does not inquire as to what evidence to the contrary may be called from the officer or the defendant prior to making their decision.
When considering the summary dismissal of all three applications without seeking submissions from the Appellant, I am satisfied that these actions deprive the Appellant of the opportunity to make full answer and defence, or to put evidence to the contrary before the Court. The conduct is so unfair as to result in a miscarriage of justice.
Were it merely the dismissal of the Charter application at issue, I may have ruled differently.
The denial of the adjournment applications without any consideration of the merits or the effect on the Defence ability to make full answer and defence tips the balance in favour of a miscarriage of justice, particularly as the Court acknowledges that the Defence is not ready to proceed.
It does not matter whether or not the applications would ultimately have been successful, it is the lack of procedural fairness which leads to the miscarriage of justice here. I grant the appeal and order a new trial in that case with respect to the second and third grounds of appeal.
Finally, with respect to the Cheung matter.
The appellant argues that the Court erred in dismissing the Charter application and that the verdict was unreasonable. The application was fully argued in Cheung. The Defence gave no specific reason to have the officer attend for cross-examination, nor did they highlight any anticipated evidence that would constitute evidence to the contrary.
The Justice of the Peace relied on Hon and adopted the reasoning of Justice of the Peace Levita in dismissing the application. I find no error in this given my above decision that Hon was correctly decided.
Following this ruling, the Defence indicated that it was ready to proceed to trial. No request was made for an adjournment for any purpose. The certificate of evidence was read into the record, indicating that the appellant drove 78 kilometres per hour in a 50 kilometre per hour zone on May 5th, 2020, at 9:49 a.m. No further evidence was called by either party.
The Justice of the Peace found Mr. Cheung guilty on the basis of the certificate as no evidence to the contrary was called. I find no error was committed by the Justice of the Peace in Cheung and that the appeal is dismissed in its entirety.
... END OF EXCERPT OF PROCEEDINGS