Ontario Court of Justice

(Provincial Offence Appeals)

Date: 2014-09-12

Between:

Her Majesty the Queen ex rel. the Regional Municipality of York

— and —

Matthew Zuccarini Appellant

Before: Justice Joseph F. Kenkel

Appeal Heard on: September 12, 2014

Reasons for Judgment released on: September 12, 2014

Counsel:

• Ms. V. Pankou, agent for the respondent
• Ms. T. Ward, agent for the appellant

KENKEL J.:

Introduction

[1] Mr. Zuccarini was convicted at trial of speeding contrary to s. 121 of the Highway Traffic Act. He appeals on two grounds:

• That the accused was deprived of the opportunity to make submissions or cross-examine on the issue of whether the officer should have been permitted to refer to his notes to refresh his memory.
• That the learned Justice of the Peace erred in amending the speed stated in the certificate of offence to conform with the evidence at trial.

Referring to Notes to Refresh Memory

[2] The trial was held a year and a half after the alleged offence date. The prosecutor established that the investigating officer had an independent recollection of the events in question after having refreshed his memory by reference to notes made at the time of the investigation. He needed to refer to the notes to refresh his memory as to details. There had been no additions, deletions or alterations to the notes since they were made. It's common ground that a copy of the notes had been disclosed to the accused prior to trial.

[3] I agree with the appellant that the presiding Justice of the Peace should have asked the defendant whether he had any questions of the officer or submissions to make in relation to reference to the notes. It may well be that the self-represented accused would have had nothing to say on that point, but he should have been asked. The appellant did cross-examine the officer on numerous points but did not assert there were any discrepancies between the officer's testimony at trial and the notes disclosed to the defence.

[4] I find that the failure to ask the appellant whether he wished to ask questions at that point or make submissions did not impact trial fairness as the prosecution provided a proper foundation for reference to the notes. The error identified does not meet the test under s. 120 of the Provincial Offences Act.

Amendment s. 34(4) POA

[5] When enforcing speeding laws, it's not uncommon for officers in this region to charge a person with a speed lower than was actually recorded. If the person chooses to contest the matter, the prosecution may seek at trial to amend the charge to the actual speed recorded. Notice of this potential amendment is provided to defendants with disclosure. The Court of Appeal has noted the benefits of this procedure to persons charged as well as to the justice system. See R. v. Winlow, 2009 ONCA 643, at paras. 61-62.

[6] The Appellant submits that the learned Justice of the Peace erred in granting the amendment in this case as the appellant did not have a chance to consult with counsel and did not understand the consequence of the amendment.

[7] Provincial offence courts are given broad powers of amendment under s. 34 of the Provincial Offences Act. The test for amendment is set out in section 34(4).

[8] In this case the accused was given notice of potential amendment with disclosure. He was also provided verbal notice on the day of trial by the prosecution. The court offered a trial adjournment which was declined by the defendant. The matter was held down while other matters were dealt with so the appellant had an opportunity to further consult anyone he wished. He decided to proceed with the trial.

[9] The learned Justice of the Peace considered the evidence at trial, the circumstances of the case including the nature of the defence, and found that the appellant would not be prejudiced by the amendment. It had no impact on the accused's defence to the speeding charge. I find that the reasons of the learned Justice of the Peace on this issue show he considered and applied the test under s. 34(4). There's no evidence of legal error or miscarriage of justice.

Conclusion

[10] The appeal is dismissed.

Released: September 12, 2014

Justice Joseph F. Kenkel