Ontario Court of Justice

Date: 2016-06-17

Court File No.: YORK REGION 4961-92687642

In the Matter of: An appeal under the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

The Regional Municipality of York

— and —

Ying Kee Wong

Before: Justice Joseph F. Kenkel

Heard on: 17 June, 2016

Appeal Judgment delivered: 17 June, 2016

Counsel:

• Ms. Pankou, agent for the Prosecution
• Mr. Chen, agent for the defendant Ying Kee Wong

KENKEL J.:

Facts and Conviction

[1] Mr. Wong was convicted at trial of disobeying a stop sign contrary to s. 136(1) of the Highway Traffic Act.

[2] The appellant alleges the following errors at trial:

• The learned Justice of the Peace misapprehended evidence
• The learned Justice of the Peace disregarded evidence
• The learned Justice of the Peace erred in accepting the officer's evidence identifying the appellant's car as the one that failed to stop for the sign
• The audio portion of the in-car video was not played so the court did not hear certain utterances of the Appellant
• The verdict was unreasonable

Evidence and Submissions at Trial

[3] The appellant did not attend his trial, but instructed his agent to attend and proceed on his behalf.

[4] The officer testified that he saw a blue Hyundai Elantra 4 door drive through a stop sign at an intersection making no attempt to stop. The officer followed and eventually stopped Mr. Wong's Elantra. The officer testified that he was able to keep continual watch on Mr. Wong's car even at the distance shown in the in-car video. Cross-examination was focused on one point – the officer had described the appellant's Elantra as dark blue and the defence suggested it appeared black in the video. The officer explained that the video quality didn't show the colour he saw but he perceived it as navy blue at the time and he confirmed it was the same car throughout.

[5] The prosecution called no other evidence and the defence chose not to call any evidence.

[6] The defence submitted that given the colour discrepancy and the landscape features shown in the in-car video, the prosecution had not proved that the accused's vehicle was the one that had failed to stop for the sign beyond a reasonable doubt. The prosecution submitted that the officer reasonably explained the colour difference and that the officer's evidence and the video evidence were consistent and showed that Mr. Wong's vehicle was the one that had failed to stop at the sign as alleged.

Misapprehension of Evidence

[7] The appellant submits that the court misapprehended evidence, pointing to His Worship's summary of the facts where he described the roads in the intersection. The reasons describe the intersection in the same way the officer described it in his evidence but for one difference. The officer later added that one road doesn't continue beyond Birchmount. That wasn't mentioned in the reasons for judgement but that fact had no significance to issues at trial. There's no evidence the court misapprehended material evidence.

Disregarded Evidence

[8] The appellant alleges that the court disregarded important evidence in failing to place any weight on the description of the appellant's position as being "perpendicular" to the roadway after his turn into a plaza. The appellant's agent suggested at trial that if it was the car the officer was following the turn would have resulted in a different angle. The court accepted the evidence of the officer that he kept watch on the appellant's vehicle throughout and found that the video evidence supported the officer's testimony. That finding was reasonably open on the evidence.

Error to Accept the Officer's Evidence

[9] The officer's evidence was straightforward and detailed. The court found it was supported by the in-car video. The court found the colour difference was reasonably explained. The appellant disagrees but there's no evidence of error.

The Failure to Play Audio Evidence

[10] Neither the Prosecution nor defence chose to play the audio portion of the in-car video. The appellant now says that the court should have heard the audio portion as they would hear Mr. Wong say, "no" repeatedly when stopped. The appellant submits that the court could infer that Mr. Wong was asserting mistaken identity at the time and find a reasonable doubt on that basis.

[11] The defence chose not to call evidence at trial as is their right. Utterances by Mr. Wong upon being stopped are not evidence even if their meaning could be ascertained. If Mr. Wong wished to call evidence on this point he could have done so and that evidence would have been subject to cross-examination so the court could determine the appropriate weight to give it. Failure to hear non-evidence not called by either party can't be an error.

The Verdict was Unreasonable

[12] The basis of this appeal seems to be simple disagreement with the findings of fact by the trial court. This was a simple case and the court accepted the investigating officer's evidence as credible and found that his evidence was supported by the in-car video. It's not the function of an appeal court to re-hear the case. The trial court's findings flowed logically from the whole of the evidence and His Worship's conclusion was reasonable in that context.

Conclusion

[13] The appeal is dismissed.

Delivered June 17, 2016:

Justice Joseph F. Kenkel