Court File and Parties

Court File No.: 4860 999 10 TB7008891 00 - Toronto

Date: 2012-04-23

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Christine Irving

Before: Justice Sheila Ray

Heard on: January 31, 2012

Reasons for Judgment released on: April 23, 2012

Location: Old City Hall, Toronto Region

Counsel:

• Andrew Smith, Agent for the Respondent, Attorney General
• Vartan J.S. Manoukian, Licensed Paralegal acting for the Appellant

Ray, J.:

INTRODUCTION

[1] The Appellant, Christine Irving, was charged on February 6, 2010 with four provincial offences:

1. Failing to surrender her insurance card contrary to s. 3(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, as amended.

2. Proceeding contrary to an intersection sign by turning left contrary to s. 144(9) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended.

3. Driving her motor vehicle without a current plate validation contrary to s. 7(1)(c)(i) of the Highway Traffic Act, supra.

4. Driving while under suspension contrary to s. 53(1) of the Highway Traffic Act, supra.

[2] Justice of the Peace P. Gettlich concluded that all four charges had been proved beyond a reasonable doubt and sentenced the Appellant to fines totalling $1,270. The Appellant has appealed his decision pursuant to s. 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended (hereinafter POA). I have the discretion pursuant to s. 121 of the same act to allow or dismiss the appeal, set aside the finding and order a new trial, or enter a finding of guilt with respect to the offence of which, in my opinion, the Respondent should have been found guilty, and pass a sentence that is warranted in law.

[3] Two grounds of appeal have been raised in this case. First, all four offences of which the Appellant has been convicted are particularized to have occurred at eastbound Queen Street West onto northbound Bathurst Street, Toronto. The Appellant says that the Respondent did not prove beyond a reasonable doubt that the offences took place in Toronto, which is an essential element of the offence. The Appellant further states that the location stipulated is not sufficiently notorious that judicial notice can be taken that it is in the City of Toronto. The second ground of appeal is that the learned Justice of the Peace provided too much assistance to the prosecution in this ex parte trial, such that any reasonable observer would perceive bias.

PLACE OF THE OFFENCE

[4] As noted by Feldman J. in R. v. Tsui, [2004] O.J. No. 2995, relied upon by the Appellant, the location of an offence as particularized in the information is an essential averment. In that drinking and driving criminal case, Justice Feldman reviewed a number of similarly decided cases and concluded that the street intersection of Midland and Steeles was not so "notorious or indisputable a fact that evidence of it should be deemed unnecessary," (at para. 9) and therefore he would not take judicial notice of it. The approach followed by Feldman J. was also adopted with respect to provincial offences by the court in the case of R. v. Eagles (1976), 31 C.C.C. (2d) 417 (Ont. H.C.). The evidentiary rule that Feldman J. applied is described in more detail in the following excerpt found at page 1268 of Sopinka and Lederman, The Law of Evidence in Canada (3rd ed) (Lexis-Nexis, 2009):

Judicial notice is the acceptance by a court or judicial tribunal, in a civil or criminal proceeding, without the requirement of proof, of the truth of a particular fact or state of affairs. Facts which are (a) so notorious as not to be the subject of dispute among reasonable persons; or (b) capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy, may be noticed by the court without proof of them by any party. The practice of taking judicial notice of facts is justified. It expedites the process of the courts, creates uniformity in decision-making and keeps the courts receptive to societal change. Furthermore, the tacit judicial notice that surely occurs in every hearing is indispensable to the normal reasoning process.

[5] The evidentiary practice of taking judicial notice is even more justifiable in Provincial Offences Court than in criminal and civil courts given the purpose of the POA. The often quoted sentence from R. v. Jamieson (1981), 64 C.C.C. (2d) 550 (Ont. C.A.) comes to mind: "The Provincial Offences Act was not intended as a trap for the unskilled or unwary but rather as an inexpensive and efficient way of dealing with, for the most part, minor offences." The Ontario Court of Appeal has also said in the case of Ontario (Ministry of Labour) v. Discovery Place Ltd. (1996) 30 W.C.B.(2d) 219 (Ont. Gen. Div.); affirmed (1997), 34 W.C.B. (2d) 463 that the basic idea behind the POA was "to ensure that technical objections do not impede the arrival of a verdict on the merits."

[6] It makes sense that place should be an essential element of an offence, because a court cannot legitimately have territorial jurisdiction over a matter, unless it knows where the offence took place (see R. v. Fudell [1956] O.J. No. 255 (Ont. H.C.)). Section 29(1) of the POA states that "a proceeding in respect of an offence shall be heard and determined by the Ontario court of Justice sitting in the county or district in which the offence occurred or in the area specified in the transfer agreement made under Part X." In the case of Ontario (Ministry of Labour) v. Discovery Place Ltd., supra, the court of original instance declined to take judicial notice that Pickering was in the Central East Region, and concluded that as such it had no jurisdiction pursuant to the section. On appeal it was decided that judicial notice should have been taken of this notorious geographical fact.

[7] With respect to taking judicial notice of notorious geographical facts, Morden J.A. of the Ontario Court of Appeal urged an approach in the case of R. v. John Bednarz [1961] O.J. No. 163 that would not disregard the "plain realities of the situation." (para. 6) The issue in that case was whether a magistrate presiding at Smooth Rock Falls on an assault charge could take judicial notice of the fact that the micro-wave or T.V. tower at Unionville, which was two miles east of Smooth Rock Falls, was located in the Township of Kendry. There was no evidence that this location, identified in the testimony of a witness, was located in the Township of Kendry. Morden J.A. indicated that in his opinion the magistrate could, even though the Court of Appeal could not. Formal proof of that fact, which was obviously within the knowledge of the magistrate, the Crown counsel and the accused, was not necessary. Had the truth been disputed, and it was not, it would have been capable of quick and accurate demonstration. Morden, J.A.'s "plain realities of the situation" approach appears to have been followed by the Ontario Court of Justice in R. v. Bonner, [2005] O.J. No. 5628, R. v. Mardamuthu [2010] O.J. No. 1418, and R. v. Mirhet Agic, (April 28, 2011, unreported).

[8] I am satisfied that the intersection of Queen Street West and Bathurst is a well-known main intersection in downtown Toronto, that is "capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy," and may be judicially noticed by a trial justice without further proof. Any other approach would disregard the "plain realities of the situation." For all of these reasons, this ground of appeal is dismissed.

REASONABLE PERCEPTION OF BIAS

[9] In this ex parte trial the transcript discloses that the learned Justice of the Peace interrupted at several points during the examination in chief of P.C. Clinton Cibulis by the Prosecutor to explain points of evidence to the witness that the Prosecutor was in the midst of explaining. The Justice appeared to be ensuring the admissibility of the evidence. It is not clear from the transcript whether or not the Prosecutor understood these evidentiary issues, as he was interrupted in the midst of his attempts to speak.

[10] Before closing his case the Prosecutor tendered Ministry of Transportation documents purporting to confirm that the Appellant's license had been suspended and that she had been sent notice of the suspension. The Justice observed that the notice of suspension had only been issued on January 15th and the Appellant was stopped on February 6th. The Justice and the Prosecutor agreed that there was generally a protocol of 7 days, and it does appear to me that more than 7 days had elapsed, so there need not have been any concern. The learned Justice stated that he did not "like this" and the Prosecutor said, "I am in your hands." The Justice concluded:

Yes, otherwise the case was proven beyond (sic) reasonable doubt on all four charges and convictions are registered. Actually, no, wait a second. Yeah. All four charges were proven beyond (sic) reasonable doubt and convictions are registered.

[11] After the convictions were registered, the Justice and the Prosecutor appeared on the transcript to be having a conversation in which they were both placing the sentence on the record. Then the Justice said, "Those are the fines." The Prosecutor said, "Thank you, Sir." And the court said, "And again, just to repeat, $1,000.00 for driving under suspension, $100.00 fail to surrender valid insurance card, no validation on plate $85.00, proceed contrary to sign at intersection $85.00."

[12] Before I decide whether the Justice went so far in assisting the Prosecutor, that it would create a perception of bias in the mind of a reasonable observer, I will review the law. Section 11(c) of the Canadian Charter of Rights and Freedoms states that a person "charged with an offence has the right…to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." The offence can be criminal, or regulatory (see R. v. Wigglesworth, [1987] 2 S.C.R. 541). Dickson C.J.C.'s classic statement of the meaning of judicial independence is found at paragraph 21 of his judgment in R. v. Beauregard, [1986] 2 S.C.R. 56:

Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider – be it government, pressure group, individual or even another judge – should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence…

[13] The independence and impartiality of a tribunal is compromised by the appearance of too close a relationship between justice and prosecutor. When a justice intervenes excessively to assist a prosecutor, this can create a reasonable perception of bias. Extreme care should be taken to ensure that questioning from the bench does not leave an impression of unfairness. The issue is not whether the Appellant was in fact prejudiced by the interventions, but whether a reasonable observer might reasonably consider that the defendant had not had a fair trial (See R. v. Brouillard, [1985] S.C.J. No. 3 (S.C.C.), and R. v. Valley, [1986] O.J. No. 77 (Ont. C.A.)).

[14] The test for determining whether a trial justice's interventions have compromised the appearance of fairness is an objective one. It is whether a reasonably minded person, who had been present throughout the trial, would consider that the Appellant had not had a fair trial. The record must be assessed in its totality and the interventions evaluated cumulatively, not as isolated occurrences, from the perspective of a reasonable observer present throughout the trial. Questioning that conveys an impression that a trial justice has placed the authority of his or her office on the side of the prosecution undermines the appearance of trial fairness. But proper interventions are appropriate. A trial justice has an inherent authority to control the court's process and exercising this authority often requires intervening in proceedings, making comments, giving directions, and asking questions during a trial (see R. v. Stucky 2009 ONCA 151, [2009] O.J. No. 600 (Ont. C.A.), R. v. Hamilton 2011 ONCA 399, [2011] O.J. No. 2306 (Ont. C.A.), and R. v. Khan [2008] O.J. No. 1561 (Ont. C.J. per Libman, J.)).

[15] There are two problems in this case with the manner in which the trial including sentencing unfolded, both of which created the appearance of placing the authority of the justice on the side of the prosecution. First, his unsolicited assistance to the prosecutor with questioning P.C. Cibulis and instructing both the Prosecutor and the Officer on the correct way to use the rules of evidence to ensure the admissibility of the evidence. Second, the collaborative way in which the Prosecutor and the Justice reached a decision on the sentence seemed like a conversation, where they were deciding together on an equal footing what the sentence would be. The final words of the Justice looked as if he was simply summarizing what the two of them had decided together. The complete absence of the Appellant or a licensed representative in this ex parte trial aggravated these appearances of impropriety.

[16] I am mindful, however, that I cannot decide this issue based upon occurrences that I have isolated. I must assess the record in its totality and evaluate the interventions cumulatively from the perspective of a reasonable observer present throughout the trial. It is from this perspective that I have reached my conclusion that a reasonable observer would not conclude that the whole trial was unfair. The conclusions reached by the Justice were supported by the evidence. Most of the trial proceeded in a conventional fashion. The unfortunate isolated occurrences that I have identified did not comprise the integrity of the whole trial. The conclusions reached were all reasonable. There was no substantial wrong or miscarriage of justice. For all of these reasons, I do not believe that a reasonable and well informed observer, who had been present for the entire trial, would reasonably apprehend bias. This ground of appeal is dismissed.

CONCLUSION

[17] The appeal is dismissed.

Justice Sheila Ray