Court Information
Ontario Court of Justice
Date: October 10, 2017
Court File No.: Cornwall, Ontario 3960-999-00-3661633B/34B-00
Parties
IN THE MATTER OF an appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended;
BETWEEN:
HER MAJESTY THE QUEEN Respondent
— AND —
NICK NEUMAN Appellant
Court Details
Before: Justice D.A. Kinsella
Heard on: July 5, 2017
Reasons for Judgment released on: October 10, 2017
Counsel:
- Alexandre Simard, for the Respondent
- James Moak, agent for the defendant Nick Neuman
On appeal from: a conviction by Justice of the Peace Winchester on April 20, 2016.
Decision
KINSELLA J.:
Introduction
[1] The defendant was charged with speeding contrary to section 128 of the Highway Traffic Act ("HTA") and with driving with a hand-held communication device, contrary to section 78.1(1) of the HTA.
[2] The trial took place on April 20, 2016. The defendant was represented at the trial by an agent, Mr. Moak.
[3] The prosecution called one witness and the defendant gave evidence on his own behalf. After hearing evidence the justice of the peace found the defendant guilty, registered convictions and fined the defendant.
Facts
[4] The facts in this case are relatively straight-forward.
[5] Evidence was heard from Constable Phillips, a police officer. He testified that he was on duty on June 25, 2015 in an unmarked police vehicle conducting routine traffic monitoring on Highway 401. He said that at about 12:36 pm he was merging onto Highway 401 when he observed the defendant driving a silver Toyota Camry in the passing lane. The vehicle was travelling at a speed which appeared to be "above average". Constable Phillips noticed that the driver was not looking at the roadway but rather his head was down and he appeared to be preoccupied with something in his lap.
[6] Constable Phillips followed the vehicle and activated his moving radar, which revealed that the defendant was travelling 130 kilometres per hour in a 100 kilometres per hour posted zone. He testified that he was a qualified radar operator and that he had tested the device before and after the stop "following manufacturer's requirements."
[7] When the Camry came up behind a tractor-trailer, it slowed down which allowed the officer to approach the vehicle from the driving lane. He saw that the driver was still looking down at his lap and only glancing up occasionally. The officer testified he could see the reflective face of an electronic device being held by both of the defendant's hands and that the defendant was using his thumbs to operate the face of the device. Constable Phillips said he could see that the screen was illuminated leading him to conclude that there was a program or application being manipulated on the device.
[8] When he stopped the vehicle he testified that he could see a grey covered android-type cell phone on the passenger side of the vehicle. He could not determine the make or model nor did he make any inquiries about either. Despite this, in cross-examination he testified that he had made a note that the device was an "LG Samsung HTC." In cross-examination, Constable Phillips denied being asked by the defendant to check his cell phone to see if it was on or being told that the cell phone was "dead", meaning inoperable. When asked if the phone could have been black, the officer testified that he did not get a good look at the actual body of the cell phone only having noted that its cover was grey.
[9] Mr. Neuman also testified. He denied that he was speeding. He stated that he had been travelling with two other people, all in separate cars, bringing vehicles back and forth between Ottawa and Montreal for his employer, a dealership. He estimated he had been travelling at the posted speed limit or slightly below. He further denied having had a cell phone in his hand saying he had been holding his business card, which was grey in colour, and moving it about while listening to music.
[10] Mr. Neuman said that he did have a cell phone with him, describing it as a black "Moto X" phone which was located in the cup holder in the centre console. He said that he had some snacks in a grey plastic bag as well as a device he described as a scanner which he used for work sitting on the front passenger seat. He maintained that his cell phone was "dead" because he had forgotten to charge it the previous evening and his phone charger was in his personal vehicle at home. He testified that he told the officer that the phone was "dead".
[11] In cross-examination, he said that he did not think he would be able to control a steering wheel with his knees because he had never tried it before. He also produced his business card, which was described as being a darker grey and four by two inches in size. He agreed that his cell phone was larger.
Grounds of Appeal
[12] The defendant essentially argues the following grounds:
a) The officer had no notes regarding his radar testing and for that reason the evidence should not have been given any weight;
b) The learned justice of the peace improperly interfered with the conduct of the trial, compromising the appearance of fairness; and
c) The learned justice of the peace erred in her application of the principles for credibility assessment, and in particular in her application of the test set out in R. v. W.(D.), [1991] 1 S.C.R. 742.
Scope of Powers of the Appellate Court
[13] This appeal is pursuant to Section 135 of the Provincial Offences Act. An appeal under section 135 of Part I offences is conducted by means of a review. The language that defines the conduct of the appeal under s. 136(1) speaks in terms of a broad-based review with generous allowances to all parties to ensure that the issues are fully and effectively defined and fairly and completely considered, a process referred to as "robust" by the Court of Appeal in R. v. Michaud, 2015 ONCA 585, [2015] O.J. No. 4540.
[14] Despite the robust nature of the review, there are some practical limitations. I adopt the reasoning of Justice Duncan in Regina v. Gill, [2003] O.J. No. 4761 concerning the scope of this review when dealing with issues of credibility, where the court noted that significant deference should be given to the trial justice's findings unless they are unreasonable.
Analysis
(a) Lack of Notes
[15] "If it is not in the notes, then it didn't happen." This argument, which flows from a decision from Justice Duncan in the case of R. v. Zack, [1999] O.J. No. 5747, is based on a misunderstanding. As Justice Duncan himself clarified in the subsequent decision of R. v. Golubentsev, [2007] O.J. No. 4608:
My own decision in R. v. Zack [supra] is often relied in support of an argument to the effect, "if it's not in the notes, it didn't happen. That is not what Zack stands for. Rather, in that case, I intended to convey the idea that police officers could not withhold disclosure of crucial evidence on important points by saying "I didn't note it because I would remember it." Zack is a case about disclosure, not note-taking…[at paragraph 30]
[16] Courts have repeatedly confirmed the principle that an officer's notes are merely testimonial aids and not evidence. Officers are expected to have an independent recollection of the events they are testifying about and the notes are there to assist with specific details. To suggest that the failure to make a notebook entry on something, particularly on something like routine procedure or practice, requires the trial judge to conclude that the event did not occur would effectively eliminate the need for an officer to have an independent recollection and result in the notes becoming the evidence.
[17] In this case, the officer testified that he had made an entry in his notes that he had tested the radar device at a particular time "as per manufacturer's specifications." At trial he elaborated on his understanding of those specifications. It is clear, therefore, that the officer had an independent recollection of his actions and was using his notes as an aid to his memory.
[18] This ground of appeal is therefore dismissed.
(b) The Justice of the Peace Improperly Interfered with the Conduct of the Trial, Compromising the Appearance of Fairness
[19] Mr. Moak cites a number of examples which he argues should support a conclusion that the learned justice of the peace improperly interfered with the conduct of the trial and thereby compromised the appearance of fairness. These examples can be grouped as follows:
i. The justice of the peace erred in improperly limiting cross-examination of the police officer;
ii. The justice of the peace erred in expressing her understanding of the relevant case law, thereby demonstrating that she had prejudged the case; and
iii. The justice of the peace erred in intervening in the trial and in cross-examining the defendant.
[20] The first two issues raised by Mr. Moak are connected. Mr. Moak wished to cross-examine the officer on his experience in using tuning forks to test the radar device. Justice of the peace Winchester asked Mr. Moak what the relevance of this line of questioning might be, given that she was aware of some case law on that point. Despite this, her Worship allowed the questions to be asked.
[21] Later, during submissions, Mr. Moak made submissions on the apparent requirement by the manufacturer of the radar device that tuning forks be used for testing. Since there had been no evidence called on this point (no manual filed as an exhibit nor any expert evidence on the requirement) the prosecutor objected to the agent making submissions on facts not in evidence, an objection the justice of the peace upheld. Later in her ruling, the justice of the peace cited what she believed to be the relevant case law on whether or not a manufacturer's directions are statutory requirements.
[22] The last issue raised by Mr. Moak involves the learned justice of the peace asking questions of the defendant at the end of cross-examination. First, the learned justice of the peace asked Mr. Neuman how tall he was. Next, her Worship asked Mr. Neuman why he had not brought the phone he said he had with him at the time to court. Mr. Neuman explained that the phone had been damaged in the recent past and was at a shop for repairs. Finally, her Worship asked the defendant to show her the temporary phone he had brought with him to court, which he did.
[23] A justice of the peace sitting as a trial court is expected to listen fairly and impartially to the case presented by the prosecutor and the defence and to ensure that both parties receive a fair trial. The trial justice is not involved in the presentation of the case for either party. A justice of the peace is expected to be aware of relevant case law and is also expected to control the trial so that irrelevant or impermissible evidence is excluded.
[24] A trial justice of the peace has an inherent authority to control the court's process and exercising this authority often requires intervening in proceedings, although this must be done carefully and cautiously. It can often be difficult to find the correct balance. What is clear, however, is that a trial justice of the peace may not "step down from the bench and assume the role of counsel": R. v. Bakhash, [2017] O.J. No. 3353, at paragraph 31.
[25] The fundamental question when evaluating interventions is whether the interventions led to an unfair trial. This assessment cannot be done in a vacuum but instead must consider the reality of trial courts, which are busy. As Sir Arthur Conan Doyle wrote, "it is easy to be wise after the event."
[26] The test for determining whether a trial judge's interventions have compromised the appearance of trial fairness is an objective one. The test is "whether a reasonably minded person who had been present throughout the trial would consider that the accused has not had a fair trial." This involves reviewing the entire trial record as opposed to examining individual examples: R. v. Stucky, 2009 ONCA 151, [2009] O.J. No. 600 (Ont. C.A.).
[27] On the first two issues, as noted above, the learned justice of the peace allowed the cross-examination despite expressing some skepticism about its relevance. This was appropriate and completely within the scope of her inherent authority. It is also appropriate, and in fact expected, that the learned justice of the peace be aware of the relevant case law.
[28] On the final issue, it would have been preferable for the learned justice of the peace to not have entered the trial by asking questions of the defendant. Assessing this within the totality of the trial, however, it cannot be said that the interventions were such that they compromised the appearance of a fair trial.
[29] Accordingly, this ground of appeal is dismissed.
[30] There is another difficulty which arises out of the questions posed to the defendant by the trial justice of the peace. That difficulty will be addressed below.
(c) The Justice of the Peace Erred in Her Application of the Principles Relating to Assessment of Credibility
[31] Mr. Moak submits that the learned justice of the peace erred in her assessment of the defendant's credibility by considering improper evidence and applying the incorrect test.
[32] In her ruling, the learned justice of the peace made the following comments in assessing the credibility of the defendant:
"The cell phone, now, here we are, we have no evidence before the Court that there is a black cell phone, we only saw an iPhone and it was grey and we don't have any evidence in front of the court saying that the black, supposedly black phone is being repaired, that it fell in the water. I mean these are all things that it's easy enough to say right, but there's no evidence before the court for that, and you being his lawyer, I guess you didn't ask for any evidence, so I don't know what's going on there. And there was no cell phone produced in the Court, except for the grey iPhone." (at page 65, lines 11 – 23)
"So, I do – am considering R. v. W.(D.), in that, but you know, the thing is, it has to be the evidence provided first of all has to be there, which in this case, really wasn't, except for words." (at page 66, lines 27 – 31)
[33] The purpose of a trial is to determine whether the Crown has proved the guilt of the accused on the specific charges alleged beyond a reasonable doubt; it is not a "credibility contest". Where there is conflicting evidence about what occurred, it is wrong to decide a criminal case simply by concluding which version of events is preferred. The decisive question is whether, considering the evidence as a whole, the Crown has proved the guilt of the accused beyond a reasonable doubt.
[34] In a case where the accused has chosen to call evidence, the trial court must consider the principles set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742 at pp. 757-758 when determining whether or not the prosecutor has proven the guilt of the defendant beyond a reasonable doubt:
If the court believes the evidence of the defendant, the trial justice must find him not guilty.
Even if the court does not believe the defendant's evidence, if his evidence leaves the trial justice with a reasonable doubt of his guilt, she must find him not guilty of this offence.
Even if the evidence of the defendant does not leave the trial justice with any reasonable doubt as to his guilt, the court may only find him guilty if, based on the evidence that the trial justice does accept, she is satisfied beyond a reasonable doubt of his guilt.
[35] A trial justice must apply the same standard of scrutiny in her assessment of the defendant's evidence and credibility as when considering the evidence and credibility of the Crown's witnesses and evidence including police testimony. There is no presumption of truthfulness applied to police evidence (R. v. Chanmany, 2016 ONCA 576).
[36] The portions set out above of the learned justice of the peace's decision demonstrate that her Worship incorrectly applied the W.(D.) analysis. First, the learned justice of the peace applied a different standard for the defendant's evidence than that of the officer. Her Worship's reason conveyed the message that the defendant's "words" (i.e. viva voce testimony) were not evidence, particularly in the absence of corroboration. This is particularly problematic in light of the objections raised by Mr. Moak regarding the officer's recollections not being in his notes. The effect of her Worship's decision elevated the reliability of officer's viva voce testimony over that of the defendant.
[37] Second, the learned justice of the peace effectively reversed the burden of proof, requiring the defendant to prove his defence rather than assessing whether or not she was satisfied beyond a reasonable doubt that the prosecutor had proven its case.
Conclusion
[38] The defendant was entitled to have his credibility properly assessed and, in my respectful view, he was denied that right. It is not certain that the learned justice of the peace would have still disbelieved the evidence of the defendant had she not committed the legal errors that she did in assessing his credibility.
[39] Accordingly, the appeal is granted and a new trial is ordered.
Released: October 10, 2017
Signed: Justice D.A. Kinsella