Court of Appeal for Ontario
Date: September 11, 2019 Docket: C65558
Justices: Watt, Hourigan and Huscroft JJ.A.
Between
Her Majesty the Queen ex rel. The Regional Municipality of Durham Respondent
and
Lindsey Morillo Appellant
Lindsey Morillo, acting in person Mark Wiffen, amicus curiae No one appearing for the respondent
Heard in writing: March 14, 2019
On appeal from the decision of Justice John N. Olver of the Ontario Court of Justice, sitting as a Provincial Offences Appeal Court, on December 20, 2017 dismissing the appeal from the conviction entered by Justice of the Peace Maxine Coopersmith of the Ontario Court of Justice on August 24, 2017.
Reasons for Decision
[1] One sunny summer afternoon a few years ago, a police officer gave Lindsey Morillo ("the appellant") a ticket. The ticket alleged the appellant was speeding: 107 kilometres per hour in a 60 kilometres per hour zone.
[2] The appellant was certain he was not speeding. And he did not think that the speed limit was 60 kilometres per hour. He checked the speed limit signs to confirm his belief.
[3] Convinced he committed no offence, the appellant exercised his right to a trial. He did not hire a lawyer. Or a paralegal. He represented himself at trial.
[4] The trial proceedings concluded unfavourably for the appellant. He was convicted in the Provincial Offences Court on an amended Certificate of Offence, which alleged the speed limit was 70 kilometres per hour, not 60 kilometres per hour as originally charged.
[5] The appellant appealed to the Provincial Offences Appeal Court. Again, he represented himself. This time he succeeded. The judge allowed the appeal, set aside the conviction, and ordered a new trial.
[6] At the appellant's second trial, he was, once again, convicted of speeding for driving his car at 107 kilometres per hour in a 70 kilometres per hour zone. And the appellant, once again, appealed this decision to the Provincial Offences Appeal Court. But this time the judge dismissed the appeal and affirmed his conviction. The appellant remained self-represented throughout these proceedings.
[7] The appellant, still self-represented but assisted by amicus, sought special leave to appeal to this court under s. 139 of the Provincial Offences Act, R.S.O. 1990, c. P.33. A judge of this court granted special leave to appeal on three specific grounds.
[8] The respondent conceded that the appeal should be allowed and the appellant's conviction quashed. So no oral hearing took place. These reasons record our disposition of the appeal based on the written submissions of the self-represented appellant assisted by amicus. The respondent filed no written submissions.
The Background
[9] Appeals under s. 139(1) of the Provincial Offences Act ("POA") are appeals from the judgment of the Provincial Offences Appeal Court, not a second appeal from the decision of the Provincial Offences Court. This court's jurisdiction is limited to alleged errors of law in the appeal court's decision. Some background on the evidence adduced and procedure followed at trial is necessary to appreciate those grounds of appeal.
The Trial Proceedings
[10] In his testimony at the appellant's second trial, the officer who issued the offence certificate ("the ticketing officer") expanded somewhat on how the speed detection device operated to record speeds of vehicles travelling in the opposite direction. He also testified about his opportunity to view the appellant's vehicle and his observations of that vehicle and other traffic in its immediate vicinity. In some respects, the ticketing officer's evidence at the second trial differed from what he had said at the appellant's first trial.
[11] The appellant sought to cross-examine the ticketing officer on discrepancies in his descriptions of his observations of the same events as between the first and second trials. When the appellant referred to the officer's testimony "at the previous hearing", the justice of the peace indicated that she was "not going to go to a previous hearing" and pointed out "This is a brand…new trial, sir." The justice of the peace added "so if you want to ask him 'did you say anything differently on a previous occasion? …you can use that".
[12] After the appellant indicated that he had no further questions of the ticketing officer, the trial justice added:
I don't want to get into Browne and Dunn. Is there anything you're going to dispute that you would like the officer to have the opportunity to respond to now? Anything further?
[13] The appellant continued his cross-examination of the ticketing officer. At one point, the trial justice, who had made some suggestions about how the appellant should phrase his questions, warned:
This is the last time I'm going to phrase your questions for you because you should be catching on by now.
[14] The appellant was the only defence witness. He explained that he was very cognizant of the changes in speed limits on the roads on which he was driving that day. When the ticketing officer gave him the "paper" charging him with driving at 107 kilometres per hour in a 60 kilometres per hour zone, the appellant told the officer "I wasn't travelling that fast. I was doing 70.", then explained that the speed limit was 70 kilometres per hour, not 60 kilometres per hour.
[15] During submissions, the appellant contended that he had looked at his speedometer when he saw the signs posting the speed limit. He saw that he was driving at 70 kilometres per hour. The justice interrupted and asked whether he had given evidence to that effect. The appellant said, "Not in so many words." The justice reminded the appellant "That's new evidence. And I'm not taking that evidence, sir."
[16] In her submissions, the prosecutor contended that the appellant had not properly cross-examined the ticketing officer because he (the appellant) had not used a transcript of the prior proceedings to do so.
[17] The trial justice gave her reasons for convicting the appellant immediately after the parties had concluded their closing submissions. The reasons include the following passages:
You were given every opportunity during cross-examination to give reasons why you believed you were doing 70 kilometres per hour. You indicated you didn't have your cruise control on. You never indicated during your examination in-chief – in other words, your evidence – or your cross-examination that you used a measuring device called the speedometer to determine that you were going 70 kilometres per hour.
Now, I'm also very well aware not to turn this into a credibility contest between you and an officer and simply choose one side without properly and carefully giving the other side fair consideration of the evidence in the context of all of the evidence. So I'm not jumping to any premature acceptance of one party over the other, but what I am left with here is an offence of speeding 107 kilometres per hour in a 70 kilometres per hour zone. The differences between you and the officer is the officer said you were doing 107 kilometres per hour, you said you were doing 70 kilometres per hour.
So I have to look at, whose evidence can I rely on? Well, I'll tell you, the one who used a device, the one who compared their visual observations, the one who is trained to use that device, made sure it was functioning properly. That's the evidence I'm going to rely on, not your evidence where you saw a sign that said the speed limit was 70, that you had vehicles in front and behind you and you were keeping up with traffic. That is not as reliable [as] the officer's evidence.
The Decision of the Appeal Judge
[18] On the appeal, the appellant pointed out that the ticketing officer had given evidence at the second trial inconsistent with what he had said about the same events at the first trial. He complained about the trial justice interfering with the conduct of the case and insisting on the use of transcripts.
[19] After explaining to the appellant that an appeal was not a re-litigation of the trial, the appeal judge pointed out that the appellant had encountered two problems at trial:
i. he did not actually deny that he was speeding; and
ii. he did not have a transcript to properly cross-examine the ticketing officer on prior inconsistent statements because he (the appellant) was unaware, as a self-represented litigant, of the proper procedure to do so.
[20] Among the exchanges between the appellant and the appeal judge as the hearing progressed are these:
THE COURT: Well let me just explain to you because as I say you've had two kicks at the can here and you're basically asking me to grant your appeal so you can have a third kick at the can and the issue is how many opportunities do we give you at the taxpayer's expense to figure out how to properly present your case right. And this is why I say you would've been well-advised the first time around to have representation because you wouldn't be here now. One way or the other it would've been determined and it would've been definitive. But basically your grounds for appeal are that you just weren't able to get your points across in your mind.
THE COURT: Here's the problem and this is maybe it's just your lack of knowledge of courtroom procedure and evidence. And this is unfortunate that you're here a second time because of the same reason, which is you don't understand enough about the examination process to be able to make your points. But it's not an open forum during cross-examination for you to make submissions to the Court or just make statements in front of the witness…
THE COURT: The problem comes back to you not knowing how to do the trial yourself and I ask myself the question I asked to you rhetorically, how often should a Court continue to grant you opportunities to retry your case when you don't know the process?
THE COURT: There's no error that I can see that the Justice made that would allow me to grant your appeal and give you a third opportunity at trial.
The Appeal to this Court
[21] The motion judge granted leave to appeal on three issues which he posed as questions:
Did the Provincial Offences Appeal Court Judge err in law in failing to find that the Justice of the Peace erred in law by misapplying the rule in R. v. W.(D.)?
Did the Provincial Offences Appeal Court Judge err in law in failing to find that the Justice of the Peace erred in law by making an erroneous ruling relating to Mr. Morillo's entitlement to attempt to impeach the traffic enforcement officer with his testimony from the first trial?
Did the Provincial Offences Appeal Court Judge err in law in determining that Mr. Morillo had a fair trial, without considering whether the Justice of the Peace gave appropriate and sufficient direction and guidance to Mr. Morillo as an unrepresented accused?
Ground #1: The Alleged W.(D.) Error
[22] This ground of appeal alleges the appeal judge erred in not giving effect to the appellant's claim that the trial justice failed properly to apply the W.(D.) principles to the evidence adduced at trial.
The Background
[23] The circumstances which engage the principles of W.(D.) originate in the appellant and the ticketing officer's accounts of the relevant events.
[24] The ticketing officer testified the appellant was speeding. Using a speed recording device in proper working order, the officer registered the appellant's speed at 107 kilometres per hour in a 70 kilometres per hour zone.
[25] The appellant said that he was not speeding; rather, he was driving his vehicle at the posted speed limit.
The Reasons of the Trial Justice
[26] At trial, the justice of the peace referred to the principles laid out in R. v. W.(D.), [1991] 1 S.C.R. 742 and noted she was well aware that she was "not to turn this into a credibility contest" between the appellant and the ticketing officer. She concluded:
So I have to look at, whose evidence can I rely on? Well, I'll tell you, the one who used a device, the one who compared their visual observations, the one who is trained to use that device, made sure it was functioning properly. That's the evidence I'm going to rely on, not your evidence where you saw a sign that said the speed limit was 70, that you had vehicles in front and behind you and you were keeping up with traffic. That is not as reliable [as] the officer's evidence.
The Reasons of the Appeal Judge
[27] The appeal judge conversed with the appellant about the perils of self-representation and the advantages of being represented by someone knowledgeable in trial procedure, evidence and the proper framing of legal argument. The reasons find no basis upon which a new trial could be ordered but make no specific reference to the trial justice's application of W.(D.).
The Arguments on Appeal
[28] Amicus accepts that the trial justice cautioned herself properly on the principles of W.(D.). However, despite this caution, amicus says, the trial justice erred in their application. She failed to consider the critical question of whether the prosecutor had proven the appellant's guilt beyond a reasonable doubt. Instead, the trial justice determined the case simply by deciding which version of events she preferred. This approach tended to lessen the standard of proof, reducing it to a balance of probabilities rather than proof beyond a reasonable doubt as the law requires. And was the very kind of reasoning W.(D.) was intended to prevent.
[29] Turning to the decision of the appeal judge, amicus acknowledges that the self-represented appellant did not expressly advance this ground of appeal before the appeal judge. On the other hand, the error is patent on the face of the record which was before the appeal judge and involves fundamental principles associated with the burden and standard of proof. The appeal judge erred by failing to consider and give effect to it.
[30] Apart from conceding that the appeal should be allowed, the respondent made no submissions on the existence or effect of this alleged error.
The Governing Principles
[31] The principles of W.(D.) need not be repeated here. Three brief points will suffice.
[32] First, failure to use the precise language of W.(D.) is not fatal, provided the reasons, read as a whole, make it clear that the trial judge was not under any misapprehension about the location of the burden and the substance of the standard of proof applicable in the proceedings: W.(D.), at p. 758.
[33] Second, the purpose of W.(D.) is to ensure that triers of fact, whether judges or juries, understand that the verdict must not be grounded in a simple choice between the evidence of the Crown's witnesses, on the one hand, and the evidence of the accused, on the other. The verdict is determined by whether, based on the whole of the evidence, the trier of fact is left with a reasonable doubt about the accused's guilt: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 8.
[34] Third, by setting out the entire case as a choice between two competing versions of events and stating that the most reliable version will be chosen as the "true" verdict, a trial judge risks deciding the ultimate issue on the basis of an inadequate standard of proof – balance of probabilities – rather than that required – proof beyond a reasonable doubt: R. v. A.P., 2013 ONCA 344, 297 C.C.C. (3d) 560 at para. 42. See also, R. v. Lifchus, [1997] 3 S.C.R. 320.
The Principles Applied
[35] We give effect to this ground of appeal. We reach this conclusion by considering first whether the trial justice misapplied the principles of W.(D.) in reaching her conclusion of guilt. And then, if satisfied that such an error occurred, by examining whether the appeal judge erred in failing to identify and provide a remedy for that error.
[36] The trial justice recognized the evidence adduced conflicted on the single issue at trial – whether the appellant was speeding. The appellant gave evidence inconsistent with the ticketing officer's testimony, which, if believed, to the requisite standard, established the appellant's guilt. In these circumstances, the trial justice acknowledged and repeated the W.(D.) principles.
[37] Despite her recitation of W.(D.), the trial justice found the appellant guilty because she found the ticketing officer's evidence more reliable than the appellant's. By choosing sides, she based finding of guilt on the very legal error that W.(D.) sought to eradicate. Moreover, this method of determining guilt sits uncomfortably close to proof of guilt on a balance of probabilities, a legally inadequate standard of proof. Thus viewed, the case was not resolved on the basis that the evidence accepted by the trier of fact meets the standard of proof required.
[38] The appeal judge failed to recognize and identify this fundamental flaw in the conviction recorded at trial. In failing to do so, as the respondent concedes, the appeal judge erred.
Ground #2: The Alleged Error in Restricting Cross-Examination
[39] The second ground of appeal has to do with rulings made during the self-represented appellant's cross-examination of the ticketing officer on alleged inconsistencies in his evidence as between the two trial proceedings.
[40] Some brief background is necessary to ground the discussion that follows.
The Cross-Examination at Trial
[41] At trial, the appellant made it clear to the presiding justice that he considered the ticketing officer's evidence to have differed significantly from the evidence he had given about the same events or observations at the first trial. The appellant wanted to find out why the testimony differed on these issues.
[42] The appellant did not have a transcript of the ticketing officer's testimony at the first trial in hand. Some questions appear to have been based on the appellant's recollection of the officer's prior testimony, others from the disclosure of the officer's notes.
[43] When the appellant began to ask questions about what the ticketing officer said at the first trial, or in disclosure, in an apparent effort to demonstrate an inconsistency with the officer's evidence on the same issue at the second trial, the trial justice intervened:
THE COURT: Okay. I'm not going to go to a previous hearing…
MR. MORILLO: Okay.
THE COURT: …okay? This is a brand…
MR. MORILLO: This is just…
THE COURT: …new trial, sir.
MR. MORILLO: Okay. Okay.
THE COURT: Okay?
MR. MORILLO: Okay. You mentioned…
THE COURT: So if you want to ask him, "Did you say anything differently on a previous occasion?"
MR. MORILLO: I realize it is, Your Worship, and thank you for pointing that out…
THE COURT: Okay.
MR. MORILLO: …but I'm using evidence here of – of – of disclosure from the last hearing.
THE COURT: Okay, fair enough, you can use that.
And later:
THE COURT: Okay. Are we re-trying the old trial? Is that what we're doing?
[THE PROSECUTOR]: Exactly. If we could stick to the new evidence, please.
MR. MORILLO: No. Your Worship, I just – okay. I'm just supposed to stick to the questions. Okay.
THE COURT: No, no, ask him.
MR. MORILLO: Well, I…
THE COURT: Ask him questions.
MR. MORILLO: Okay.
[44] In closing submissions, the prosecutor contended that the appellant had not followed the proper procedure in cross-examining the ticketing officer to expose inconsistencies in his testimony. The prosecutor said:
If he wanted to contradict anything that the officer had said that was different in today's proceedings he could have put that to the officer. Yes, the officer was present throughout the last trial. However, the officer's not privy to those transcripts. If they're ordered and paid for then he would have them, but the officer does not, the defendant would have those and I have – would have a copy as well.
The Decision of the Appeal Judge
[45] On appeal, the appellant tried to show several inconsistencies in the testimony of the ticketing officer, occasions on which the officer gave different versions of the same events. After pointing out to the appellant that "You never at any time denied that you were not [sic] speeding or did you assert that you were travelling at the posted speed limit", the appeal judge turned to the appellant's cross-examination of the officer:
And I think she acknowledged to some extent that there was [sic] some differences in the officer's evidence from trial one to trial two that you were trying to point out. The problem was you didn't have a transcript to properly cross-examine the officer and these are one of the short comings of running a case by yourself. I mean you're perfectly entitled to represent yourself and run a case. The problem is where you're not sure of the evidentiary procedures and how to properly cross-examine an officer to test their credibility, particularly where you're trying to impeach their credibility because of something they may have testified to differently and I understand exactly what you're trying to say that the officer's evidence on some issues changed from one date to the next. The issue might well be whether those are material issues or not material issues and had you properly cross-examined the officer with a transcript okay, you may well have been able to establish some credibility misgivings that might've allowed Justice of the Peace Coopersmith to favour your argument a little better, or at least have a reasonable doubt as to the accuracy of the speed the officer was testifying to.
The Arguments on Appeal
[46] In this court, amicus submits that the appeal judge erred in failing to hold the trial justice had erred in restricting the appellant's cross-examination of the ticketing officer on the inconsistencies between the officer's testimony at the first and second trials.
[47] Amicus contends that the trial justice's rulings sent mixed signals to the self-represented appellant. On the one hand, the trial justice pointed out, more than once, that she was not concerned with what had happened at the first trial. After all, she said, "This is a brand new trial". But on the other hand, the trial justice provided the appellant with suggestions for how to formulate his questions. According to amicus, credibility was a live issue at trial. A new trial did not disentitle the appellant from cross-examining the ticketing officer on statements inconsistent with answers he gave at the first trial on the same issues. Parties are entitled to impeach witnesses credibility by showing the witness made a statement on a prior occasion – either recorded in disclosure or at a previous trial or other proceeding – on the same subject-matter, inconsistent with the witness' trial testimony. Transcripts of the prior proceeding are not a prerequisite to impeachment.
[48] Transcripts are only essential when the witness denies or cannot recall having made the prior statement; the transcript establishes that the prior statement was, in fact, made.
[49] Amicus says the appeal judge, rather than identifying this error and its impact on the fairness or the correctness of the result of the proceedings, made the same error. This error is exacerbated by the appeal judge's consideration of an irrelevant factor – that the appellant had already had "two kicks at the can."
The Governing Principles
[50] It is commonplace that an opposing party can impeach a witness by showing that, on a prior occasion, the witness made a statement inconsistent with his or her testimony about the same subject-matter in the current proceedings. That a prosecution witness made the prior statement under oath at a prior trial of the same charge does not prohibit its use for this purpose. The nature and extent of any inconsistency are important factors for the trier of fact to consider in assessing the weight to assign to the witness' testimony.
[51] Most often for impeachment, the cross-examiner will have a copy of the relevant statement or portions of it in hand. This ensures that what was said previously is accurately put to the witness. But having the statement in hand is not a prerequisite of the right to cross-examine. Sections 20 and 21 of the Evidence Act, R.S.O. 1990, c. E.23 and ss. 10 and 11 of the Canada Evidence Act, R.S.C. 1985, c. C-5 are procedural in nature: they assist in proof that a prior statement was made but do not provide a right to cross-examine: see, R. v. Mannion, [1986] 2 S.C.R. 272, at pp. 281-282.
The Principles Applied
[52] We also give effect to this ground of appeal. The trial justice erred in the restrictions she imposed on the appellant's right to cross-examine the ticketing officer on inconsistencies between his present and former testimony about the same subject-matter. And the appeal judge erred not only by failing to recognize the error, but also by neglecting to consider it in determining whether to order a new trial, but also by repeating it.
[53] The trial justice's principal concern, perhaps because of the manner in which the self-represented appellant approached the issue in cross-examination, was that somehow this amounted to a re-trial of the first trial. This was not so. However inelegant the appellant's forensic technique (something that could have easily been clarified by brief questions inquiring about the purpose of the proposed cross-examination then illustrating its execution), what emerges is the appellant's effort to challenge the ticketing officer's credibility based on significant differences between his current and former testimony about the same subject-matter. This was a perfectly legitimate method of impeachment. The trial justice erred in holding otherwise.
[54] On appeal, the judge neither recognized the trial justice's intervention as based on an incorrect view of the law, nor considered it in assessing the overall trial fairness or correctness of the verdict rendered. For his part, the appeal judge erred in holding that the cross-examination was improper because the appellant did not have a transcript of the prior proceedings in hand when he conducted the cross-examination. While professional cross-examiners do so, for reasons already expressed, the right of cross-examination exists irrespective of what is in the hand of the cross-examiner.
[55] The appeal judge also appeared to count against the appellant his lack of familiarity with how to cross-examine an opposing witness and, more generally, how to present his defence. Rather than criticizing the self-represented for his forensic inadequacies and invoking deficiencies as a basis upon which to deny a remedy, a more helpful approach would have been to inquire, explain, and assist, thereby ensuring a fair process and a reasoned conclusion.
Ground #3: The Failure to Assist Ground
[56] This ground of appeal, as envisaged by the motion judge, furnishes an opportunity to provide guidance to justices of the peace who preside in Provincial Offences Court about the nature and extent of their obligations to assist self-represented litigants.
[57] The respondent conceded that the appeal should be allowed on substantive grounds and filed no written submissions. Thus, this ground was not fully argued. In these circumstances, we do not consider it appropriate to take up the suggestion of the motion judge to offer guidance on this issue: R. v. Ul-Rashid, 2014 ONCA 896, at paras. 8, 9.
Conclusion
[58] The appeal is allowed, the conviction quashed, and a new trial ordered. In the circumstances, the prosecutor might consider whether the interests of justice are served by subjecting the appellant to a third trial on a speeding ticket.
"David Watt J.A."
"C.W. Hourigan J.A."
"Grant Huscroft J.A."