Court File and Parties

Court File No.: Central East - Newmarket 4170936A Date: 2014-01-10

Ontario Court of Justice

Between: Her Majesty the Queen — and — Roberto Strati

Heard: July 29, 2013 Before: Justice Peter Tetley

Counsel:

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

Endorsement

Released on January 10, 2014

TETLEY J.:

Overview

[1] 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 per hour in a posted 100 kilometre per hour zone.

[2] 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 Highway Traffic Act, to reflect a rate of speed of 153 kilometres in a 100 kilometre an hour zone, as disclosed by the evidence. This amendment "up" was initiated by the presiding Justice of the Peace absent a request from the Provincial prosecutor.

Grounds of Appeal

[3] Submissions were received on the advancement of argument of the appeal in relation to the following issues:

(a) Alleged "interference" by the trier of fact preventing the Appellant's counsel 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;

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

[4] I propose to explore each of these issues in greater detail in more fulsome reasons for judgment which will issue early next week.

[5] For the purposes of determining the outcome of this appeal, I am satisfied that no reversible error occurred in the Appellant's trial and that the Justice's Reasons for Judgment are sufficient to justify the finding of guilt and the resulting monetary sanction. Accordingly, the appeal shall be dismissed.

[6] In reaching this decision, it is acknowledged that an apparent conflict developed as between the trier of fact and the Appellant's legal representative at trial with respect to the manner in which counsel conducted the cross-examination of the arresting officer. This dispute related to questioning involving the technical requirements of the speed measuring device employed by that officer. This issue resulted in a thinly veiled indication by the Justice of the Peace that the Appellant's legal representative was placing himself at risk of being cited for contempt. This circumstance was most unfortunate and ought not to have occurred. That said, the trial record reflects the fact that the Appellant's legal representative was, in fact, referencing a user's guide that was not related to the device actually employed by the investigating officer in measuring the speed of the Appellant's vehicle. Once the correct manual was produced, cross-examination proceeded without incident or interruption.

[7] Consequently, it is difficult for the Appellant to contend that all of the technical considerations relating to the reliability of the speed measuring device were unable to be explored as a result of intervention by the trier of fact. Accordingly, I conclude that this ground has no merit.

[8] The aforementioned disagreement with respect to the manner in which the technical guide was employed during the initial cross-examination of the arresting officer by the Appellant's legal representative at trial no doubt contributed to the assertion of bias that was advanced on argument in this appeal.

[9] That circumstance, combined with the amending "up" of the rate of speed on the Justice of the Peace's own motion, are contended to have created an appearance of bias in favour of the prosecution at trial.

[10] In rejecting this ground of appeal, I note the provisions of section 34(1) to (6) of the Highway Traffic Act that specifically allow for the amendment of an Information or Certificate of Offence by the Court on the Court's own motion. I am also mindful of the Court of Appeal directive in York (Regional Municipality) v. Winlow, that urges the exercise of restraint by the Court in relation to this issue absent application by the prosecution.

[11] I conclude that the evidence at trial provided a factual basis for the amendment that took place, that there was no evidence that the defendant was either misled or prejudiced as a consequence of the resulting variation, and that the proposed amendment could, and was, made without an injustice being done, in compliance with section 34(4) of the Highway Traffic Act. Accordingly, this ground of appeal is also found to be without merit.

[12] Finally, I conclude the credibility analysis performed by the Justice of the Peace is sufficient to allow meaningful Appellate review. The rationale for the rejection of the Appellant's testimony within the context of W.(D.) and the reasons for the acceptance of the evidence offered by the investigating officer is detailed in the Justice of the Peace's Reasons for Judgment.

[13] The trier of fact is entitled to reject the contrary version of events offered by the Appellant at trial on the basis of his acceptance of the evidence offered by the investigating officer. The rationale for the rejection of the evidence offered by the Appellant at trial is articulated in the trial judgment and is entitled to deference on appeal.

[14] The failure to articulate the W.(D.) analysis is not viewed as a fatal error as it is evident that acceptance of the evidence of the investigating officer, for the reasons indicated, was the basis for the disbelief of the contrary account of events offered by the Appellant at trial.

[15] I conclude that the Reasons for Judgment make clear the reasons why the trial judge accepted the evidence offered by the investigating officer while rejecting the Appellant's evidence, in circumstances where the account of events offered was in conflict.

[16] In my view, the credibility assessment is sufficient within the context of the W.(D.) analysis: see R. v. Vuradin.

[17] For these reasons, and the more fulsome Judgment to follow, the appeal is dismissed.

Justice P.D. Tetley

Released: January 10, 2014