COURT OF APPEAL FOR ONTARIO

DATE: 20051222 DOCKET: C42054

BEFORE: DOHERTY, SHARPE and LANG JJ.A.

B E T W E E N :

1275729 ONTARIO INC. and GERALD MCPHERSON Appellants

• and -

HER MAJESTY THE QUEEN Respondent

COUNSEL: Richard Posner for the appellants Joseph Perfetto for the respondent

Heard: December 9, 2005

On appeal from the decision entered by Justice G.A. Pockele of the Conviction Appeal Court dated February 26, 2004.

DOHERTY J.A.:

I

[1] The appellant, Gerald McPherson (“McPherson”), was driving a tractor trailer along Highway 401 when he was directed to pull into a roadside inspection area. During the inspection, the brakes of the trailer were tested. Three of the four braking systems did not meet the prescribed standards. McPherson and 1275729 Ontario Inc. (“the company”), for whom McPherson was hauling the load, were charged with driving or permitting the driving of an unsafe vehicle.

[2] McPherson and the company were convicted after a trial before a Justice of the Peace. The company was fined $3,000 and McPherson was fined $800. Both appealed their convictions to the Ontario Court of Justice (“the appeal court”). On the appeal, they alleged errors at trial and also sought to introduce fresh evidence pursuant to s. 117 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended (“POA”). The appeal court declined to receive the fresh evidence, held that there were no reversible errors at trial and dismissed the appeals.

[3] McPherson and the company sought leave to appeal to this court pursuant to s. 131 of the POA. That section limits the granting of leave to questions of law alone. Leave can only be granted where a determination of the question of law is essential in the public interest or for the due administration of justice.

[4] Gillese J.A. granted leave to appeal. It is clear from a reading of her endorsement that she granted leave to appeal on the following question of law:

Did the appeal court err in holding that the principles set down in R. v. Palmer and Palmer (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.) governed the admissibility of fresh evidence tendered on appeal under s. 117 of the POA.

[5] In his factum, counsel for the appellants put forward several additional grounds of appeal, none of which raised issues on which leave to appeal would have been granted under s. 131. After hearing counsel’s submissions as to the scope of the appeal, the court held that the appeal was limited to the question of law identified in the endorsement of Gillese J.A.[^1]

[6] I would hold that the principles enunciated in Palmer do guide the exercise of the discretion to receive fresh evidence on appeal under s. 117(1) of the POA. I would dismiss the appeal.

II

The Facts

[7] McPherson was driving a tractor trailer along the 401 highway from Chicago towards London, Ontario when he was directed to pull into an inspection station. It was agreed at trial that McPherson was driving the vehicle and that the company was permitting the operation of the vehicle.

[8] The vehicle was selected for inspection at random. Stephen Thomas, a Ministry of Transportation (“MTO”) inspector, performed a visual inspection of the pushrods on the brakes of the trailer. That inspection led him to conclude that a more formal inspection was necessary. Mr. Thomas measured the distance the pushrods travelled out of the service brake chamber on each of the four brake chambers. That distance exceeded the limits prescribed by regulation on three of the four brake chambers. The applicable regulation defined “critical defect” as including a failure of three of the four brakes to meet the required standards. Operating a vehicle that has a “critical defect” as defined in the regulation constitutes the offence of operating an unsafe vehicle.

[9] Inspector Thomas decided to take the measurements a second time to be sure that his first measurement was accurate. The second measurements were done by Inspector Thomas and a second MTO inspector. These measurements were taken using a Ministry certified air gauge, a Starrett Digi-Tape (tested and calibrated that morning), a Chamber Mate and calipers issued by the Ministry. The inspectors were satisfied that their equipment was working properly. The same three brakes failed this test, although on two of the brakes, the measurements on the second test were 1/16" different than the measurements on the first test. The distances being measured were small (approximately 2" to 2 1/2") and if the measurement on one of the brakes was high by as little as an 1/8", there would not have been a “critical defect” as defined by the regulations.

[10] The MTO inspectors testified that based on their measurements, the trailer of the vehicle had virtually no functioning brakes as it travelled down the 401.

[11] The appellants were represented at trial by a paralegal with considerable experience defending these kinds of charges. He cross-examined the inspectors from the MTO with a view to challenging the procedures they used to take the measurements, their familiarity with the measuring devices, the possible effect of the weather on those devices, and the inspectors’ knowledge of how the MTO’s certification process works.

[12] The defence also led evidence directed at establishing a due diligence defence. That defence was rejected and is irrelevant to this appeal.

III

The Appeal Proceedings

[13] On appeal the appellants sought to adduce fresh evidence consisting of two photocopied pages from a user manual for the Starrett DigiTape and a report prepared by Alexander Cazin, a forensic engineer. The manual described procedures to be followed when using the tape and referred to the temperatures at which the tape could be used. At trial, the appellants had unsuccessfully attempted to cross-examine the Ministry of Transportation employees on the contents of the manual. There was nothing in the trial record or in the fresh evidence offered on appeal that would support the contention that the inspectors used the DigiTape improperly or that it was too cold for the tape to take proper readings. Nothing in the photocopied pages of the manual could have had any possible effect on the verdicts at trial. I need make no further reference to those pages.

[14] The report prepared by Mr. Cazin is a different matter. Although Crown counsel argued in this court that the report was inadmissible because it was not supported by an affidavit from Mr. Cazin, that objection was not raised in the appeal court. Absent any objection when the evidence was tendered, fairness dictates that the report be treated as the proposed evidence of Mr. Cazin.

[15] The significant part of Mr. Cazin’s report is found in the last four paragraphs:

Our review of the Court Transcript containing Officers Thomas and Mills testimonies determined that, although the methodology used for measuring the brake chambers pushrod travel was acceptable, the use of the tape measure, with graduations of 1/16", under the vehicle in natural light conditions, during a February early morning, combined with the lack of familiarity of the officer with the operation of the truck’s air system, may have lead to inaccurate readings for the trailer pushrod travel measurements. This was also substantiated by the difference in the measurements of the front brakes pushrod travel.

Based on our analysis, it is our professional opinion that the pushrod travel measurements made by the Ministry officers were inaccurate, especially for the left rear brake chamber where the measurement was 2-3/8".

This was due to the officer not considering the external factors influence on the measurements taken with the DigiTape, which, by design, was conducive to small measurements errors.

Furthermore, the measurements did not have the necessary accuracy for concluding that the trailer had a critical defect, and consequently it is also our professional opinion that the pushrod travel for at least two of the trailer brakes were within allowable limits and thus, the trailer did not meet the critical defect criteria.

[16] No explanation was offered in the appeal court for the failure to adduce the evidence of Mr. Cazin at trial. The appellants were represented on the appeal by the same paralegal who had represented them at trial.[^2]

[17] In refusing to admit the report from Mr. Cazin as fresh evidence, the appeal court, relying on Palmer, held that:

• the appellants had not established that the evidence of Mr. Cazin was not available at trial by the exercise of due diligence; and
• the appellants had not established that the evidence of Mr. Cazin, even if it had been adduced at trial, would have affected the result.

IV

Analysis

[18] The appellants were prosecuted pursuant to Part III of the POA. Appeals from convictions entered under Part III are governed by ss. 116 to 134 of the POA. Section 117(1) controls the admissibility of fresh evidence on appeal from proceedings under Part III and reads in part:

The court may, where it considers it to be in the interests of justice,

(d) receive the evidence, if tendered, of any witness, … [emphasis added]

[19] Section 117(1)(d) is virtually identical to s. 683(1)(d) of the Criminal Code. Section 683(1)(d) is incorporated by s. 822(1) into appeals in summary conviction matters under the Criminal Code. Section 683(1)(d) reads in part:

[t]he court of appeal may, where it considers it in the interests of justice,

(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness, … [emphasis added]

[20] Both s. 117(1)(d) of the POA and s. 683(1)(d) of the Criminal Code direct that the “interests of justice” shall determine when fresh evidence should be received on appeal. Those interests encompass both finality concerns and concerns that justice should be done in an individual case: R. v. B.(G.D.) (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at para. 19 (S.C.C.).

[21] Neither s. 117(1) of the POA nor s. 683(1)(d) of the Criminal Code contain any indication as to how “the interests of justice” are to be determined. The development of the principles governing the discretion conferred by those sections has been left to the courts. There is a wealth of caselaw dealing with “the interests of justice” as described in s. 683(1)(d) of the Criminal Code. Palmer is the seminal case. In Palmer, at pp. 204-205, McIntyre J., for the entire court, recognized that the “interests of justice” gave the appeal court a broad discretion as to whether to admit fresh evidence on appeal. He identified four principles governing the exercise of that discretion:

• the evidence should generally not be admitted if, by due diligence, it could not have been adduced at trial;
• the evidence must be relevant to a fact in issue;
• the evidence must be credible; and
• the evidence, considered with the rest of the trial evidence, must be reasonably capable of having affected the result at trial.

[22] The last three of these four principles are directed at the quality of the proffered fresh evidence and are prerequisites to its admissibility. It is not suggested on this appeal that these three criteria going to the quality of the evidence are inapplicable to applications to adduce fresh evidence under s. 117(1) of the POA. The dispute relates to the application of the due diligence criterion described in Palmer.

[23] I begin with the history of the POA and its relationship to the Criminal Code. This examination will reveal that it is no accident that the language of s. 117(1)(d) of the POA is virtually identical to the wording of s. 683(1)(d).

[24] The POA was introduced in 1979 (S.O. 1979, c.4). Prior to the enactment of the POA, provincial offences were prosecuted under the Summary Convictions Act, R.S.O. 1970, c. 450. That Act incorporated the Criminal Code summary conviction provisions. The POA was designed to create a new procedure that would reflect the distinction between provincial offences and criminal offences: see s. 2(1) POA.

[25] Part III provides for prosecution of more serious provincial offences. Consistent with the history of the POA, many of the provisions in Part III closely resemble the provisions relating to summary conviction prosecutions under the Criminal Code. Indeed, many of the provisions of the POA applicable to proceedings under Part III adopt the language of the corresponding Criminal Code provisions. This similarity gives meaning to s. 2(2) of the POA, which reads:

Where, as an aid to the interpretation of provisions of this Act, recourse is had to the judicial interpretation of and practices under corresponding provisions of the Criminal Code (Canada), any variation in wording without change in substance shall not, in itself, be construed to intend a change of meaning.

[26] As s. 2(2) implies, it is appropriate to look to the corresponding Criminal Code provisions when interpreting the POA. There is nothing in the slight variation in the wording between s. 117(1)(d) and s. 683(1)(d) that lends any support to the claim that the “interests of justice” referred to in those two sections should be interpreted differently or that the discretion conferred by those sections should be exercised according to different principles. The close correspondence of the language offers strong support for the respondent’s contention that the principles governing the admissibility of fresh evidence identified in Palmer apply to applications under s. 117(1)(d) of the POA.

[27] Counsel for the appellants acknowledged that, as a matter of first impression, the identity of language between the two sections would suggest that the Palmer approach to fresh evidence applications should apply to s. 117(1)(d). He submits, however, that this first impression must give way upon a consideration of the overall scheme of the POA and its overriding purpose. He argues that POA proceedings are intended to be informal and user friendly. In his submission, courts hearing POA matters should get to the merits of the charges and not be unduly concerned with legal technicalities or procedural formalities. Counsel points to the high volume of cases heard in Provincial Offences Court and to the fact that many defendants are self-represented to support his submission that it is unrealistic to hold appellants to what he described as “a strict standard of diligence on applications to adduce fresh evidence in appeals”.

[28] This submission misunderstands the due diligence principle articulated in Palmer. Palmer does not demand that any standard of diligence be met as a prerequisite to the admissibility of fresh evidence, much less that a “strict standard of diligence” be met before fresh evidence can be adduced on appeal. As Sopinka J. said in R. v. Price, 1993 76 (SCC), [1993] 3 S.C.R. 633 at 634:

While the exercise of due diligence is one of the significant factors, it is not applied strictly in criminal cases and must be applied in light of the other relevant factors. The amount of weight to be given to this factor depends on the strength of the other factors, in other words, on the totality of the circumstances.

[29] The due diligence criterion is context sensitive and, as acknowledged in Palmer itself, must be applied with regard to the nature of the proceedings in which the appeal arises. For example, if an appellant was self-represented at trial in a POA matter, an appeal court would be entitled to take that fact into consideration in deciding whether due diligence had been exercised at trial and, if not, the weight that should be attributed to that failure in determining whether to admit fresh evidence proffered on appeal. Under the Palmer approach to due diligence, that factor gets the weight that the “interests of justice” demand that it should get in any given circumstance. Self representation could in some circumstances diminish the impact of the failure to exercise due diligence on the admissibility of the evidence.

[30] The due diligence component of the fresh evidence inquiry dictated by Palmer is entirely consistent with the principles underlying the POA and the realities of proceedings under that Act.

[31] This court could reject the Palmer approach to due diligence on fresh evidence applications under s. 117(1)(d) only if this court was prepared to hold that due diligence was irrelevant on such applications. Due diligence could properly be said to be irrelevant only if “the interests of justice” referred to in s. 117(1) did not include finality concerns. I would reject any interpretation of “the interests of justice” that did not encompass finality concerns, which are an important consideration in all judicial proceedings. The due diligence inquiry in an application to adduce fresh evidence on appeal protects those finality interests.

[32] Counsel also submitted that the Palmer approach is inconsistent with the spirit underlying the POA. He referred to the words of MacKinnon A.C.J.O. in R. v. Jamieson (1981), 1981 3223 (ON CA), 64 C.C.C. (2d) 550 at 552 (Ont. C.A., in chambers):

The Provincial Offences Act is not intended as a trap for the unskilled or unwary but rather, as already stated, as an inexpensive and efficient way of dealing with, for the most part, minor offences.

[33] I would not characterize an inquiry as to why an appellant did not at trial adduce the evidence proffered on appeal as a “trap”. To the contrary, it seems an obvious and reasonable inquiry.

[34] More importantly, a reading of s. 117(1)(d) that would admit fresh evidence on appeal without any due diligence inquiry would not promote the “inexpensive and efficient” determination of provincial offences prosecutions. This case makes that point. The parties went through a full trial in November 2002. A year and a half later, the appellants tried to introduce evidence on appeal that could have been adduced at the trial. Had due diligence been irrelevant and the fresh evidence admitted, the appeal court would have been required to direct a new trial. A second trial would have occurred more than two years after the charges were laid. In the end result, if due diligence had been ignored, the appellants would have had two full trials and an appeal in a period spanning well over two years, all to determine whether they should pay a fine for a breach of the Highway Traffic Act. One would be hard pressed to describe that process as inexpensive or efficient.

[35] Counsel for the appellants also submitted that this court’s decision in R. v. Stephenson (1984), 1984 3525 (ON CA), 13 C.C.C. (3d) 112 (Ont. C.A.) suggested an approach to appeals in POA matters that was inconsistent with the application of the Palmer criteria to a request to admit fresh evidence under s. 117(1)(d). Stephenson dealt with proceedings governed by Part I and not Part III of the POA. Part I applies to the more minor of the POA offences and is considerably less formal than are the proceedings provided for in Part III. Part I has its own procedural provisions and, most significantly, appeal provisions that are distinct from those governing appeals from proceedings under Part III. Those provisions are found in ss. 135 to 139. The appeal contemplated in proceedings taken under Part I is not an appeal on the record, but is by way of review of the trial decision: s. 136(2). A transcript of the trial proceedings is not necessary on an appeal from a Part I proceeding. Section 136(3)(b) provides:

In determining a review, the court may,

(b) receive the evidence of any witness whether or not the witness gave evidence at trial,…

[36] Section 136(3)(b) gives the appeal court in a Part I proceeding an unrestricted power to receive further evidence. That power is consistent with an appeal being conducted by way of a review of the trial proceedings that is akin to a trial de novo.

[37] This court’s interpretation in Stephenson of that very different appeal provision (which was then s. 119(3)(b)) does not assist in giving meaning to s. 117(1)(d). If anything, the presence of s. 136(3)(b) indicates that where the legislature wanted to give appellants a virtually unrestricted right to adduce evidence on appeal, it did so in the fashion described in s. 136(3)(b). For appeals in Part III proceedings, the legislature chose to use the language of the Criminal Code, thereby adopting the well established approach to the determination of when it would be “in the interests of justice” to admit fresh evidence on appeal.

[38] I think the appeal court properly looked to the Palmer criteria in deciding whether to admit the report of Mr. Cazin as fresh evidence on appeal.

V

The Application of the Palmer Criteria by the Appeal Court

[39] The appellant was represented by a paralegal at trial. The prosecution’s case was thoroughly tested at trial and there is no suggestion that the appellants were not competently represented by the paralegal. I would reject counsel for the appellants’ submission that because the appellants chose to be represented by a paralegal at trial, the due diligence criterion should be automatically discounted on an application to adduce fresh evidence on appeal. Finality concerns remain an important consideration regardless of the nature of the representation chosen by the appellants.

[40] No explanation was offered to the appeal court for the failure to lead the evidence at trial. Clearly, expert evidence of the kind provided by Mr. Cazin is the sort of evidence that could have been obtained and led without difficulty at trial. There were no extenuating circumstances put forward that would justify giving the failure to exercise due diligence little or no weight on this fresh evidence application. The appeal court, in the exercise of its discretion, was entitled to give considerable weight to the appellants’ failure to produce the evidence at trial.

[41] The appeal court’s assessment of the potential cogency of the fresh evidence does reveal an error. The appeal court held that the evidence of Mr. Cazin “would” not have affected the result at trial. The proper inquiry as indicated in Palmer is whether the evidence “could” have affected the result.

[42] Having regard to the substance of Mr. Cazin’s report and the small differences in measurements that could have changed the result at trial, I think Mr. Cazin’s evidence could have affected the result at trial. In so holding, I do not suggest that it was conclusive, only that it could have tipped the balance in favour of the appellants.

[43] Despite the appeal court’s error in the application of one of the Palmer criterion, I am satisfied that the appeal court correctly excluded the evidence of Mr. Cazin. In the absence of any explanation for the failure to call evidence that was readily available at trial, finality interests trump the individual interests of the appellant in obtaining the legal equivalent of a mulligan, especially where the proffered evidence is far from conclusive.

[44] I would dismiss the appeal.

RELEASED: “DD DEC 22 2005”

“Doherty J.A.”

“I agree S.E. Lang J.A.”

“I agree Robert J. Sharpe J.A.”

[^1]: No order granting leave to appeal was taken out by the parties. Had they done so, any uncertainty as to the issue or issues upon which Gillese J.A. granted leave to appeal could have been resolved at that stage. Counsel should have taken out the appropriate order.

[^2]: The paralegal did provide an affidavit on the appellants’ application for an extension of time within which to seek leave to appeal to this court. In that affidavit, the paralegal said:

> That no time in the course of the trial did I ever think of calling an expert witness or think it was necessary.

As this affidavit was not part of the record before the appeal court, it is irrelevant to whether the appeal court properly excluded the evidence.