Court File and Parties

Court File No.: Central East - Newmarket 4170936A Date: 2014-03-20

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Roberto Strati

Heard: July 29, 2013

Before: Justice Peter Tetley

Judgment on Appeal

Released on March 20, 2014

Counsel:

• L. Angus for the Region of York
• P. Alexiu for the Appellant

TETLEY J.:

Overview

[1] For reasons referenced in summary form in an Endorsement dated January 14, 2014, the Appellant's appeal from conviction of a speeding offence was dismissed. In that Endorsement, I indicated that further Reasons for Judgment would issue to address the identified grounds of appeal in a more detailed manner.

[2] On March 26, 2011, the Appellant, Roberto Strati, was charged with the offence of speeding, contrary to section 128 of the Highway Traffic Act. The Certificate of Offence alleged that the Appellant had been operating his motor vehicle westbound on Highway 407 at approximately 11:13 a.m., and that the vehicle had been travelling at a rate of speed of 149 kilometres an hour in a posted 100 kilometre per hour zone.

[3] The investigating officer, P.C. Katoch of the Ontario Provincial Police, testified that the rate of speed of the Appellant's vehicle was determined by resort to a Laser Atlanta speed measuring device. The investigating officer testified that when he locked the laser on to the Appellant's Red Ford F-150 pickup truck, at a distance of approximately half-a-kilometre, it returned an actual rate of travel of 153 kilometres per hour in the posted 100 kilometre per hour zone.

[4] The Appellant testified during the course of the trial as the sole defence witness. He indicated that, on the date in question, he was operating his motor vehicle westbound on Highway 407 as he made his way home from work. The Appellant indicated that he was operating his motor vehicle at a rate of speed of 100 kilometres per hour. He stated that he maintained a constant vigilance as to the rate of speed as a matter of habit given his over 30 years of professional driving experience.

[5] The Appellant also testified that the vehicle in question was a company truck that was equipped with a speed limiting device that prevented the vehicle from being operated at speeds above 120 kilometres per hour.

Trial Justice's Decision

[6] Following a trial before Justice of the Peace D.W. Clark on August 21, 2012, the Appellant was convicted of the offence of speeding. During the course of the trial, the rate of speed alleged in the Certificate of Offence was amended, pursuant to the provisions of section 34(1) to (6) of the Provincial Offences Act, to reflect a speed of 153 kilometres in a 100 kilometre an hour zone, the actual rate of speed of the Appellant's motor vehicle as disclosed by the evidence offered by the investigating officer. The presiding justice reviewed the evidence offered by Constable Katoch and concluded that the laser speed measuring device employed was in proper working order and had been used in a manner that had accurately captured the rate of speed at which the Appellant was operating his motor vehicle.

[7] The trial justice also accepted the officer's evidence as to an observed marked difference in speed of the Appellant's motor vehicle in relation to other westbound traffic and the fact that the Appellant's motor vehicle had been noted to pass all other vehicles travelling in the same direction at the time the rate of speed was captured by the speed measuring device.

[8] The acceptance of the investigating officer's trial testimony, which was at direct odds with that offered by the Appellant, formed the basis for the rejection of the Appellant's account of events.

Grounds for Appeal

[9] Submissions were received on advancement of argument in this appeal with respect to the following issues:

(a) Alleged interference by the trier of fact preventing the Appellant's paralegal representative from making full answer and defence;

(b) An alleged bias, in favour of the prosecution, arising from the amendment of the rate of speed by the Justice of the Peace on his own motion;

(c) A misapplication of the principles enunciated in R. v. W.(D.) in relation to the credibility assessment of the Appellant at trial.

[10] As indicated in the January 10, 2014 endorsement, I am satisfied that no reversible error occurred in the Appellant's trial, and that the Reasons for Judgment are sufficient to justify the resulting finding of guilt. I propose to briefly review the legal and procedural issues that arise in this appeal in the expectation that the review may have wider legal application and provide some direction in the adjudication of like circumstances in the future.

Full Answer and Defence

(A) Limiting of the manner and scope of the legal representative's cross-examination of the investigating officer

[11] During the course of the cross-examination of the investigating officer, the Appellant's legal representative asked a series of questions in relation to the operation of the speed measuring device. These questions were technical in nature and based on information contained in a manual that was determined, during the course of the trial, to relate to a laser device other than that actually employed by the investigating officer.

[12] During the course of the cross-examination of the investigating officer, the Appellant's legal representative was prevented from referencing the manual on the basis that the technical guide had not been "properly admitted" into evidence. This directive was immediately followed by a strong caution from the presiding Justice of the Peace who indicated that failure to comply with the Court's directive might well result in a citation for contempt.

[13] Subsequently, it was determined that the operational manual being referenced by the Appellant's legal representative did not relate to the speed measuring laser device actually employed by Police Constable Katoch. Once the applicable manual was secured, cross-examination of the witness on the technical aspects of the device in issue were advanced without further intervention by the Court.

[14] In concluding that this intervention and the curtailment of cross-examination by the Justice of the Peace do not constitute a reversible error, I note the wide discretion of a trial justice to control the litigation process with a view to ensuring trial fairness (see Queens Case (1820), 2 Brod. & B. 284, 129 E.R. at 976-978 (H.L.), as applied in R. v. Calabretta, 2008 ONCJ 27, [2008] O.J. No. 364 (Ont. C.J.) and R. v. Anghel, [2010] O.J. No. 5813, (Ont. C.J.)).

[15] In the absence of expert testimony, it is difficult to envision that reference to the manual alone would have been sufficient to undermine the evidence of the investigating officer. That said, it is regrettable that this evidentiary dispute devolved, in very short order, to the point that the prospect of a contempt citation was raised.

[16] Technical questions arising from the information contained in the applicable manual are not necessarily inadmissible. The authorities direct that a cross-examiner is prohibited from reading-serving excerpts from texts, studies or other specialized literature without following a set procedure. This might entail alerting the trier of fact as to the cross-examiner's intention in the absence of the witness before the proposed cross-examination commences. This process would permit advance identification of the source material upon which the cross-examiner wishes to rely and enable any resulting procedural or evidentiary issues to be canvassed in both a civil and comprehensive fashion.

[17] It is important to remember that even in a case involving the cross-examination of an expert witness, the cross-examiner is prohibited from reading self-serving excerpts from texts, studies or other specialized literature without following a set procedure:

The proper procedure to be followed in examining an expert witness or other expert opinions found in papers or books is to ask the witness if she knows the work. If the answer is "no", or if the witness denies the work's authority, that is the end of the matter. Counsel cannot read from the work, since that would be to introduce it as evidence. If the answer is "yes", and the witness acknowledges the work's authority, then the witness has confirmed it by the witness's own testimony. Parts of it may be read to the witness, and to the extent that they are confirmed, they become evidence in the case. (R. v. Marquard, 85 C.C.C. (3d) 193 (S.C.C.) at page 230)

[18] In the case of cross-examination of a witness who is qualified by virtue of experience or training to give opinion evidence, the trial judge has a discretionary degree of control of the cross-examination process. For instance, the cross-examiner should not be permitted to put as a fact "that which is not and will not become part of the case as admissible evidence".

[19] The aforementioned considerations aside, it is also evident, that in certain circumstances, there may be some tactical advantage to be gained from exploring the breadth of the operator's knowledge of the laser speed measuring device before the operator is given an opportunity to review the technical parameters and directives relating to that instrument. This consideration suggests that some latitude may be warranted to enable exploration of the officer's technical expertise as it relates to his experience and training with regard to the device in issue. These considerations are another good reason for the nature and scope of the proposed cross-examination to be explored, with the trier of fact, in the absence of the witness, before the proposed questions are asked.

[20] The preferred approach to deal with these procedural and evidentiary issues from a judicial perspective may therefore be open to informed debate. While another Justice of the Peace might well have permitted greater leeway in allowing resort to the manual during cross-examination, I conclude that the Appellant's ability to make full answer and defence was not compromised, in any significant way, by the Court's intervention in relation to that issue. The curtailment of cross-examination is of limited significance given that the Appellant's legal representative was subsequently determined to be referencing the wrong manual. Further, once the applicable technical manual, the one that related to the laser speed measuring device actually employed by the officer, was produced, cross-examination was permitted to proceed without further intervention by the presiding justice. The interventions of the trier of fact and the direction of the cross-examination process in relation to the technical manual are therefore concluded not to have prevented the Appellant's legal representative from advancing or exploring all available defences. The fact the resource material employed, during the initial period of cross-examination, related to an entirely different device than that utilized by the investigating officer serves to further undermine this ground of appeal.

[21] Entitlement to cross-examine is not without limitation. In R. v. Edwards, the Ontario Court of Appeal notes the trial judge is in the best position to determine the extent that further cross-examination will assist the Court.

[22] The trial record under consideration here confirms that the device was in proper working order at the time it was utilized and was directed at the Appellant's motor vehicle. The established facts support the conclusions of the Justice of the Peace in this regard. In these circumstances, therefore, I conclude this ground of appeal is without merit.

(B) Reference by the presiding Justice of the Peace to the power of contempt

[23] In concluding, the evidentiary directive by the Justice of the Peace, did not result in an unfair trial, I am also mindful that the appearance of fairness must also be maintained. As Martin J.A. notes in R. v. Stucky, 2009 ONCA 151, [2009] O.J. No. 600, page 20 at paragraph 86:

The ultimate question to be answered is not whether the accused was, in fact, prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial.

[24] In considering this ground of appeal, I have concluded that the Appellant's legal representative was not precluded from cross-examining the investigating officer on the testing procedures referenced in the manufacturer's manual for the speed measuring device actually employed by the officer. As previously noted, leave to cross-examine, without first requiring the manual to be put to the officer, might have been authorized by the presiding Justice of the Peace. It cannot, however, be concluded that the Justice's insistence that the manual be provided to the officer before questioning took place with respect to the technical aspects of the device, compromised, unfairly curtailed, or unreasonably limited, the planned cross-examination.

[25] In reaching this conclusion, I have considered whether the abrupt directive of the presiding Justice of the Peace to Appellant's legal representative in relation to his initial reference to the technical manual might have influenced or altered the course of the cross-examination in relation to the applicable manufacturer's manual. That issue was not addressed in argument and the trial record does not support such a conclusion, as reflected by the cross-examination of the investigating officer at pages 228 of the trial transcript.

[26] The contempt provisions in the Provincial Offences Act are referenced in section 91. Section 91(1) provides as follows:

91. (1) Except as otherwise provided by an Act, every person who commits contempt in the face of a justice of the peace presiding over the Ontario Court of Justice in a proceeding under this Act is on conviction liable to a fine of not more than $1,000 or to imprisonment for a term of not more than thirty days, or to both.

[27] The wording of section 91(1) clearly limits the offence of contempt to conduct occurring in the body of the court, as opposed to out-of-court conduct, such as a breach of court order. Prior to the commencement of a contempt proceeding, the Justice of the Peace is required to inform the offender of the conduct complained of, the nature of the contempt, and inform him or her of their right to "show cause" why he or she should not be punished.

[28] Given the serious professional and punitive consequences of a finding of contempt, the contempt citation process should be used sparingly, if at all. It is difficult to envision any evidentiary dispute, that might otherwise be resolved by a prior request for directions from the Court, leading to a thinly disguised allusion to the contempt provisions referenced in section 91 of the Provincial Offences Act.

[29] A litigant is entitled through his or her legal representative, to advance every defence in a forceful fashion without fear that the rigor of his or her presentation will lead to the prospect of a contempt citation. Conversely, legal representatives are reasonably expected to comply with the Court's directives relating to the manner in which evidentiary issues are to be addressed. In the event of an unresolvable disagreement, the litigant has a ready remedy, the right of appeal.

(C) The reliability of the speed-related evidence presented at trial and challenges to the accuracy of the speed measuring device employed

[30] In R. v. Vancrey, the Ontario Court of Appeal considered the adequacy of the evidence presented by the Crown in respect to the accuracy and reliability of a laser speed detection device. At the time of that decision, the laser device was not authorized by statute or regulation as an approved device for measuring the speed of vehicles although it had been employed for that purpose, in the Province of Ontario, since 1993.

[31] In concluding that the resultant speed reading was reliable, the Court of Appeal in Vancrey noted that the officer who operated the laser device was trained and experienced and that he had tested the device both before and after use, in accordance with the manufacturer's directives, to ensure that it was operating properly on the date in question.

[32] On review of the trial record here, the evidence establishes that the investigating officer was trained and experienced in the operation of the laser device and that he tested the device both before and after its use in accordance with his training and the manufacturer's instructions. Accordingly, a sound, factual basis exists for the conclusion reached by the Justice of the Peace that the laser device employed by the investigating officer accurately ascertained the speed of travel of the Appellant's automobile on the date set out in the Certificate of Offence.

[33] In affirming this conclusion, it is acknowledged that failure to comply with the testing and operational directives related to the speed measuring device employed may impact the reliability and accuracy of the obtained speed reading. These considerations are reflected in the judgment of Schnall J., R. v. Niewiadomski, [2004] O.J. No. 478, page 5 at paragraph 29: "It can be assumed that the absence of full compliance with the testing and operational process should make the reading suspect. There would be no reason for the device manufacturer to set out specifications and directions if it mattered not whether these were complied with".

[34] These sentiments have subsequently been adopted in a number of Ontario Court of Justice decisions including R. v. Wilkins, [2006] O.J. No. 5366 at paragraph 11 per Klein J; R. v. Martin, [2008] O.J. No. 1803 at paragraph 23 per Wright J.; R. v. Cormier, [2008] O.J. No. 4964 at paragraph 19, per Griffin J.; R. v. Kololgi, [2009] O.J. No. 5742 at paragraph 11, per Hourigan J., and R. v. Chaudry, [2012] O.J. No. 3919 at paragraph 8, per Boivin J.

[35] These authorities confirm the significance and importance of compliance with the testing and operational procedures relating to devices utilized to measure the speed of travel. These cases also serve as a reminder, to those charged with the responsibility of adjudicating speeding offences, that questioning in relation to these issues should be reasonably accommodated.

"Amending Up"

[36] Following the cross-examination of Provincial Police Constable Katoch, and prior to the close of the prosecution's case and the hearing of all of the evidence adduced at trial, particularly that subsequently offered by the defendant, the presiding Justice of the Peace indicated, on his own volition, that he might amend the rate of speed alleged in the Certificate of Offence to reflect the speed depicted by the laser device. The prospect of "Amendment Up" was made by the Justice of the Peace on his own motion and included a discussion as to the appropriate charging section if the rate of speed alleged were to increase from 149 kilometres per hour or 49 kilometres above the posted limit, to 153 kilometres per hour or 53 kilometres an hour above the posted limit.

[37] In this regard, reference was made by the Justice of the Peace to the amendment powers contained in section 34(2) of the Provincial Offences Act, the speeding provisions in section 128 of the Highway Traffic Act and the offence of stunt driving referenced in section 172 of the Highway Traffic Act (an offence that is made out on establishment of proof beyond a reasonable doubt of speeding at a rate of 50 kilometres above the posted limit).

[38] Following subsequent submissions by the Provincial Prosecutor, Ms. Angus, the Justice of the Peace indicated that he was placing the Appellant "on notice" that he "may be amending" the speed alleged to reflect the evidence offered by the investigating officer.

[39] In due course, at the conclusion of the evidence and following submissions of counsel, the offence notice was amended to reflect the rate of speed of 153 kilometres per hour in a 100 kilometre an hour zone. The Appellant contends that the reference to the prospect of an "amendment up" of the rate of speed by the Justice of the Peace, on his own motion, at the conclusion of the evidence of the investigating officer and before any defence evidence had been called, undermines the appearance of trial fairness and reflects a bias in favour of the prosecution.

[40] In considering this ground of appeal, reference is made to the Ontario Court of Appeal decision York (Regional Municipality) v. Winlow, [2010] O.J. No. 3691 where the "amendment up" process is discussed in detail.

[41] In concluding, there is "… nothing inherently unfair about the practice itself", Laskin J.A. notes that the Court can order the amendment itself, absent a motion from the prosecution, after hearing the evidence. The process is viewed as providing "offending drivers with an incentive to settle out of court, thus disposing of many speeding charges quickly and efficiently; and to ensure that drivers who commit speeding offences are convicted at the actual rate of speed over the speed limit that they drive, thus promoting both specific and general deterrence": see paragraph 58.

[42] In Winlow, the Court of Appeal cautions that the prerequisites for such amendment, as set out in section 34(2) of the Provincial Offences Act, must be met before such an amendment takes place: see paragraph 72 of the Winlow decision. The defendant must understand the amendment and its consequences and be given a reasonable opportunity to be heard in opposition to the request.

[43] In Highway Traffic Act prosecutions in the Region of York, notice of the prospect of an amendment to the rate of speed alleged is given to each defendant as part of the prosecution's disclosure information. In the case under review here, the Justice of the Peace commenced the Appellant's trial by advising the Appellant of the prospect of the "amendment up" of the rate of speed alleged in the Certificate of Offence if the evidence at trial disclosed a rate of speed greater than that indicated in the charging document itself.

[44] It appears to be common practice for the Certificate of Offence issued to alleged "speeders" in York Region to reference the letter "R" in proximity to the rate of speed alleged in circumstances in which the offence notice references a speed less than that actually travelled. This special designation is widely known and would be readily apparent to the presiding Justice of the Peace on examination of the charging document itself. In referencing the prospect of an "amendment up" of the rate of speed to reflect the actual rate of travel the Justice of the Peace may inadvertently create the mistaken impression he or she has somehow prejudged the matter in issue. To avoid the inference of bias from being drawn, this procedure should be avoided, particularly in circumstances where an individual is represented by a trained legal representative (see para. 46 below). The obligation to advise of the prospect that a potentially more significant penal consequence may ensue is minimized, in my estimation, when an individual is represented by legal counsel or a licensed paralegal, and more particularly when notice of the prospect of such an occurrence is given in written form by the prosecuting authority in advance of trial. The likelihood of an individual not being aware of the potential increased jeopardy that might arise at trial is greatly reduced in these circumstances.

[45] In paragraph 78 of Winlow, the Court of Appeal suggest that defendants be given notice of their potential for increased jeopardy in advance of trial, referencing the broad amendment power in section 34(2) of the Provincial Offences Act, a provision which contemplates that the notice of the amendment (as occurred in the case under review here) may be made during the course of the trial or even after the evidence has concluded.

[46] Of particular significance in this appeal is the admonition referenced in paragraph 79 of Winlow which reads as follows:

Ordinarily, the prosecutor will ask the court to amend up. Yet the amendment power in s. 34(2) also contemplates that the court on its own initiative can amend up a certificate of offence: see, for example, R. v. Morozuk, [1986] 1 S.C.R. 31. I would not encourage justices of the peace to do so; certainly, they should be cautious before doing so. And, before deciding to exercise the amendment power on their own initiative, justices of the peace must give every defendant a fair opportunity to address the question of prejudice and make submissions why the amendment should be refused: see R. v. Rahil, [2005] O.J. No. 2824, 21 M.V.R. (5th) 262 (C.J.). Again, before exercising this power, justices of the peace must consider whether the defendant is misled or prejudiced by the amendment, and whether any misleading or prejudice can be cured.

[47] In applying these directives to the case under review, I conclude that the Justice of the Peace was statutorily authorized to effect the amendment and that the Appellant was given reasonable opportunity to address the question of prejudice and to make submissions as to why the proposed amendment should be refused. The amendment in question arises from the evidence offered by the investigating officer as to the actual rate of speed travelled, with the defendant receiving advance notice of the prospect of, or potential for, such an amendment prior to the commencement of his trial.

[48] Adherence, by those who preside over the trial of such matters, with the directives referenced by Laskin J.A. in paragraph 79 of R. v. Winlow, will help avoid accusations of bias in regard to this issue. Restraint should accordingly be exercised in the exercise of the amendment powers contained in section 34(2) of the Provincial Offences Act, particularly when the presiding Justice of the Peace act on their own initiative, absent a motion by the prosecution. An appearance of bias may be an inadvertent consequence of the exercise of the amendment powers referenced in section 34(2) when that power is exercised or referenced unilaterally by the Justice of the Peace absent a motion from the prosecution. This circumstance, for the reasons referenced in R. v. Winlow, should be avoided.

The Alleged Misapplication in R. v. W.(D.)

[49] As previously noted, I have concluded that the reasons for conviction are sufficient to permit meaningful review.

[50] Although the W.(D.) analysis is not fully developed in the reasons of the Justice of the Peace, it is evident that the trial justice accepted the testimony offered by the investigating officer and rejected the conflicting evidence offered by the defendant.

[51] The rationale for the acceptance of the investigating officer's evidence is detailed in the Reasons for Judgment. The Justice of the Peace concluded that the investigating officer properly utilized a speed measuring device that was in proper working order and that the device employed accurately recorded the rate of travel of the defendant's motor vehicle on the date set out in the Certificate of Offence.

[52] Based on his rationale for the acceptance of the investigating officer's account of events, the presiding justice was entitled in law to reject the contrary version of events offered by the defendant. In view of the officer's testimony that the Appellant's motor vehicle was observed passing all of the westbound vehicles travelling in the same vicinity of the 407 Highway at the time the rate of speed was captured by the laser speed measuring device, a sound basis existed for the rejection of the Appellant's assertion of a rate of travel of 100 kilometres per hour.

[53] In R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.), the Ontario Court of Appeal notes at paragraphs 32 through 53, that the adequacy of the Reasons for Judgment and the effect, if any, of the inadequacy of the reasons on the outcome of the appeal require that the reasons be examined within the context of the entire proceeding. When considered within this context, I conclude the trial justice explained why he accepted the evidence of the investigating officer as being true and why he found the Appellant's evidence did not raise a doubt in his mind.

[54] While the specific principles in W.(D.) were not elaborated upon in detail, I conclude that the principle of reasonable doubt was acknowledged as it applied to the assessment of credibility of the conflicting evidence provided by the investigating officer and the Appellant. The Justice of the Peace did not proceed to find the allegations had been proven beyond a reasonable doubt simply on the basis of the evidence offered by the investigating officer. The trial record confirms that the trial justice considered the testimony offered by the Appellant and concluded it to be unreliable when it conflicted with the testimony offered by the investigating offered for the reasons previously referenced.

[55] As indicated in paragraph 53 of R. v. J.J.R.D.:

… An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

[56] For these reasons, I conclude the Justice of the Peace properly considered the relevant evidence, applied the appropriate legal principles in his consideration of the trial testimony, fairly and appropriately considered the burden of proof, made findings of credibility that were open to him on the evidence, and ultimately registered a finding of guilt based on the evidence and the application of the appropriate relevant legal principles to the evidence adduced at trial.

[57] As in R. v. J.J.R.D., I conclude the analysis of the evidence, while brief, clearly demonstrates the basis on which the Justice of the Peace reached his verdict and permits effective appellate review. The Appellant's evidence was rejected, not simply because it conflicted with that of the investigating officer, but because it did not leave the Justice in a state of reasonable doubt.

[58] The absence of any corroborative support for the Appellant's representation that his motor vehicle was equipped with a speed limiting device, in circumstances where such evidence would presumably be readily available to the Appellant to adduce, might also be viewed as undermining the Appellant's actual representations in that regard. While there is no onus on the Appellant to establish his innocence or to assert a positive defence, the established presence of such a speed limiting device would have assisted the trier of fact in the credibility assessment to which the Appellant now takes issue. Evidence of this kind would be of particular significance given the officer's testimony that the defendant's motor vehicle was not only recorded to have been travelling at a high rate of speed by virtue of the deployment of the speed measuring device, it was also observed to be travelling at a rate of speed much higher than the speed of all of the other vehicles that it was noted to pass.

[59] For the foregoing reasons this appeal shall be dismissed.

Justice P.D. Tetley

Released: March 20, 2014