Court Information
Ontario Court of Justice
Date: 2014-07-25
Court File No.: CENTRAL EAST 1661784Z & 1661785Z
Parties
Between:
Her Majesty the Queen Respondent
— And —
Antonio Giorgio Appellant
Judicial Officer and Counsel
Before: Justice C.M. Harpur
Heard on: July 8, 2014
Reasons for Judgment released on: July 25, 2014
Counsel:
- C. Powell — counsel for the prosecution
- Dominic Giorgio — Agent for the defendant Antonio Giorgio
On appeal from conviction by: Justice of the Peace D. Wilson on December 5, 2013
Judgment
HARPUR J.:
Introduction
[1] On December 5, 2013, His Worship Justice of the Peace D. Wilson found Mr. Giorgio guilty of speeding at 117 km/hr in an 80 km/hr zone on December 18, 2012, contrary to s. 128 of the Highway Traffic Act, R.S.O. 1990, c.H.8, as amended ("HTA") and of failing to surrender his driver's licence on that same date, contrary to s. 33(1) HTA. The findings of guilt followed a trial on July 24, 2013 in which the Crown called the investigating officer, P.C. David Stephenson, and in which Mr. Giorgio testified on his own behalf. Mr. Giorgio was represented at trial, as on this appeal, by his father, Dominic Giorgio ("Dominic"), as his agent.
[2] The appeal came before me on July 8, 2014. Mr. Giorgio seeks to set aside Justice of the Peace Wilson's convictions on, essentially, two bases: (i) on the speeding charge, Justice of the Peace Wilson improperly prevented Dominic from full cross-examination of P.C. Stephenson, in particular, in relation to potential flaws in the operation of the radar unit in P.C. Stephenson's cruiser as identified in the manufacturer's manual; and (ii) on the licence charge, Justice of the Peace Wilson erred in not providing an adequate explanation as to why he found that Mr. Giorgio's evidence that he eventually proffered his licence to the officer was neither to be accepted nor raised a reasonable doubt.
[3] For the reasons which follow, the appeal is allowed of the speeding conviction. The appeal of the failure to surrender licence is dismissed.
The Cross-Examination Issue – The Speeding Charge
[4] Mr. Giorgio's position was that he was travelling at the 80 km/hr speed limit according to his speedometer. P.C. Stephenson testified that Mr. Giorgio was recorded on the "Genesis" radar unit in his cruiser at 117 km/hr. Given this contradiction, Dominic attempted to undermine reliance on the radar unit by making use of a manual for the unit which, he said, he had obtained from the manufacturer, Decatur. Dominic told the trial court that he had obtained the manual from the manufacturer after having received Mr. Giorgio's disclosure, which included the front page from the manual and one of its sections. Although Dominic's remarks were not evidence, neither at trial nor on appeal has the Crown denied having produced parts of the manual to Mr. Giorgio and I accept that the Crown did so, signifying a recognition of the manual's relevance.
[5] Dominic made little headway in cross-examining the officer based upon the manual. Six questions into his cross-examination, Justice of the Peace Wilson interrupted him, expressing skepticism about the relevance of his cross-examination in this area given his lack of radar unit expertise:
Q. Okay. So we can't actually see it then. In, officer, in your professional opinion, would you say that the Genesis II Select Directional unit is a hundred percent accurate?
THE COURT: Is that – cross-examination is, is about examining the other side's evidence.
MR. D. GIORGIO: Well, I…..
THE COURT: It's not exactly about going on a fishing trip. So I…..
MR. D. GIORGIO: …..I'm trying to discred- the item used to accuse my son of speeding…..
THE COURT: Do you…..
MR. D. GIORGIO: …….was the radar unit, and I just wanted to…..
THE COURT: …….do you have any expertise in that?
MR. D. GIORGIO: We do. We have the manual here.
THE COURT: Okay, so…..
MR. D. GIORGIO: The manufacturer's manual…..
THE COURT: …..so your're…….
MR.D. GIORGIO: ……Decatur.
THE COURT: …..you're an expert in radar now? Is that…….
MR.D. GIORGIO: I'm not saying that I'm an expert, Your Worship.
THE COURT: Okay.
MR. D. GIORGIO: I'm saying that I've read the manual…..
THE COURT: Mm-hmm.
MR. D. GIORGIO: ….and I've taken content from the manual itself….
THE COURT: Mm-hmm.
MR. D. GIORGIO: ….to ask these questions.
THE COURT: Okay. As long as it is relevant to the…….
MR. D. GIORGIO: Absolutely.
THE COURT: …..evidence, fine. But if we get sidetracked, I'm going to bring you back. Okay?
[6] The skepticism was repeated later in Dominic's cross-examination of the officer, as follows:
A. All of the issues that you're bringing before the court today, used to in the past, effect radar. For instance, if you were using your radio to talk to the Communications Center while operating radar, sometimes you would receive an interference or an R.F.I. Those issues have been rectified in the up to date version of which I'm using. I don't receive an R.F.I. or an error message on the radar when I am using the radio to talk to Comm Center. If my cell phone rings, or if a fan is on in the cruiser, or I'm using the air conditioning, none of these things effect radar as it is today.
Q. Well, according to the manual it says different?
A. You may have an incorrect manual.
Q. I don't know. This is the manual that we received from the prosecutor's office. Not the full manual, just the front page, and section seven. I had to go to Decatur myself, and obtain a copy of all 67 pages of it, and they assured me it's the up to date copy.
A. I am advising you that I have never received an R.F.I. or an error message during those circumstances.
Q. Like I said, and according to the manual, the manufacturer's manual…..
THE COURT: Okay, that's…….
Q. …..they say different.
THE COURT: ……I've heard the question twice. I've heard the answer twice. I'm not going to hear the question a third time.
Q. Okay.
THE COURT: Thank you.
Q. Officer, can you tell us what shadowing refers to?
A. Shadowing is when you are following a transport truck, for instance, closely, and sometimes the radio – your patrol speed can be picked up from a moving object, which would vary your patrol speed, which would also add on to the target speed.
Q. Can I actually say what it says in the manual?
THE COURT: Carry on.
MS. POWELL: Your Worship, I'm going to object if the defendant's going to read from the manual.
THE COURT: Well, at some point we'll take a recess.
MR. D. GIORGIO: I'm not – I don't want to read the whole manual.
THE COURT: Sir, I've given you, I've given you all kinds of leeway. You're not a radar expert. Yet you're attempting to cross-examination [sic] the officer as if you were a radar expert. So I've given you lots of leeway….
MR. D. GIORGIO: No, I understand, Your Worship.
THE COURT: ……but at some point this trial is about a speeding infraction, and about not having a licence with you. At some point I'd like to hear some of that.
MR. D. GIORGIO: I understand, because the radar unit is the unit in question that was used…..
THE COURT: Mm-hmm, oh, I'm quite aware of that, sir.
MR. D. GIORGIO: ….I'm just going completely off the manual…….
THE COURT: Mm-hmm.
MR. D. GIORGIO: ….and what the manual explains what shadowing is – like these……
THE COURT: And then you asked the same question again after the officer's already answered it.
MR. D. GIORGIO: But he's answered it incorrectly.
THE COURT: Well that's my determination, not yours.
MR. D. GIORGIO: Okay.
THE COURT: Okay.
[7] Following these exchanges, Dominic raised with the officer the matters of "vehicle ignition interference", "fan interference" and "electromagnetic interference", all of which P.C. Stephenson said were not factors in the operation of the radar unit on December 18, 2012. Dominic engaged in no follow-up questions in his cross-examination based upon the manual, a forbearance which I regard as largely attributable to the discouragement of this approach which he had encountered from the Justice of the Peace.
[8] If Justice of the Peace Wilson's remarks to Dominic were intended to convey that one needs to be a radar expert to cross-examine the user of a radar unit on the basis of the manufacturer's manual, I cannot agree. Non-expert counsel engage in this exercise routinely, often with great success. Apart from the correctness of the suggestion, it could dissuade a reasonable lay cross-examiner from persisting in a legitimate area of inquiry. I believe it did in this case. Dominic's lack of persistence resulted in a less-than-full examination of what appears to be the only viable means of attacking the Crown's case on the speeding charge, to Mr. Giorgio's disadvantage.
[9] It can be argued for the Crown that (i) Dominic would have made little headway in any event since, ultimately, P.C. Stephenson said any interference with the radar unit would be identified on the unit itself and none was that day; and (ii) although Dominic did not appear to know how to prove the contents of the manual or that it was current, Justice of the Peace Wilson eventually accepted the manual into evidence as an exhibit. As to the first of these arguments, however, it would be speculation whether Dominic would or would not have established that P.C. Stephenson's testimony and the manual were in contradiction or, if they were, what would have been the effect upon Justice of the Peace Wilson's assessment of Mr. Giorgio's evidence. As to the manual being accepted as an exhibit, the record is clear that its admission by the Justice of the Peace was not equivalent to its being given any weight by him.
[10] Since Dominic was unduly restricted in his effort to cross-examine the officer, and Mr. Giorgio may have been prejudiced as a consequence, I regard this conviction as one which should be set aside under s. 120 of the Provincial Offences Act, R.S.O., 1990 c. P. 33, as amended, and a new trial ordered.
The Adequacy of Reasons Issue – The Failure to Surrender Licence Charge
[11] On the charge of failure to produce licence the issue was one of credibility. P.C. Stephenson said that Mr. Giorgio did not, at any time in their dealings on December 18, 2012, produce his driver's licence. Mr. Giorgio said he eventually did produce it to the officer that day. Justice of the Peace Wilson did not accept Mr. Giorgio's evidence and was not left in doubt by it. Dominic submits that the reasons for this conclusion are not explained.
[12] In respect of the speeding charge, Justice of the Peace Wilson cited reasons both for accepting P.C. Stephenson's testimony – his qualifications and experience and the pre-and post-offence testing of the radar unit – and for rejecting Mr. Giorgio's – extensive use of notes in testifying to the point of "no independent recollection" and the objective improbability of Mr. Giorgio's testimony that he monitored his speed very frequently. This led to the trial court's view that Mr. Giorgio's evidence of observing his speed to be 80 km/hr was not true.
[13] The law is clear that the reasons of a trial court should explain to a defendant who has testified why his or her evidence has been rejected: R. v. J.J.R.D., [2009] O.J. No. 4749 (C.C.A.). J.J.R.D. also establishes that evidence in conflict with that of the defendant can constitute a basis for rejection of the defendant's evidence if accepted for valid reasons which are adequately described. In this case, while Justice of the Peace Wilson's "reasoned acceptance" (the requirement from J.J.R.D.) of the officer's evidence concerning the licence is not perfectly plain, I regard his reasons for decision as conveying that the finding of credibility against Mr. Giorgio on the speeding charge influenced – was effectively carried over to – his assessment of the conflicting evidence on this charge. This carry-over is permissible; R. v. Litchfield, [1993] 4 S.C.R. 333 holds that the successful impugning of a witness's credibility in a collateral matter of fact at trial can properly be taken into account in assessing the witness's credibility in the matter of fact at issue.
[14] Since the reasons can be understood on review to contain an explanation for the resolution of the credibility issue, they should not be interfered with. The appeal from this conviction is dismissed.
Released: July 25, 2014
Signed: "Justice C.M. Harpur"
Justice C.M. Harpur, O.C.J.