Court Information

Ontario Court of Justice

Date: September 5, 2017

Court File No.: Cornwall, Ontario 3960-999-00-4601014B-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 —

PAUL GARRETT Appellant

Court Details

Before: Justice D.A. Kinsella

Heard on: June 6, 2017

Reasons for Judgment released on: September 5, 2017

Counsel:

• Michael Purcell – counsel for the Respondent
• Jodi Burness – agent for the defendant Paul Garrett

On appeal from: a conviction by Justice of the Peace Forgues on June 1, 2016

Judgment

KINSELLA J.:

Introduction

[1] The appellant was charged with failure to properly wear a seatbelt contrary to s. 106(2) of the Highway Traffic Act ("HTA") on February 4, 2016. Section 106(2) of the HTA reads as follows:

"(2) Every person who drives on a highway a motor vehicle in which a seat belt assembly is provided for the driver shall wear the complete seat belt assembly as required by subsection (5)."

[2] The trial took place on June 1, 2016. The appellant was represented at the trial by an agent, Ms. Burness.

[3] The prosecution called one witness and the appellant gave evidence on his own behalf. After hearing evidence the justice of the peace found the appellant guilty, registered a conviction and fined the appellant $200.00.

Facts

[4] The facts in this case are relatively straight-forward. It was alleged that Paul Garrett was operating a tractor-trailer on Highway 401 on February 4, 2016 without wearing his seatbelt, contrary to section 106(2) of the HTA.

[5] Evidence was heard from Constable Legere, a police officer. He testified that he was on duty on February 4, 2016 in a fully marked police vehicle conducting routine traffic monitoring on Highway 401. He testified that at about 12:45 pm he observed the defendant driving a tractor-trailer eastbound on the highway and that he could see through the window that the driver did not have his seat belt fastened. He observed the driver to be wearing a long-sleeved grey shirt with a knitted waffle pattern which was lighter in colour than the seat belt. He stopped the vehicle about four kilometres away, not having lost sight of it, at which time he noted that the driver's belt was fastened. He testified to having had a "conversation" with the defendant after stopping him but was not asked any further questions about that conversation, either by the prosecutor or agent for the defendant.

[6] Mr. Garrett testified on his own behalf. He testified that he was wearing the same shirt in court, described as a short-sleeved darker grey t-shirt, as he was on the day of the incident. He testified that he had always been wearing his seat belt. At one point in his evidence in chief, he was asked about whether or not there was a colour contrast between his shirt and the seat belt. In response, he began to relate a conversation that he had had with the officer after he was stopped wherein he attempted to bring up the fact that the shirt he was wearing was the same colour as the seat belt. The prosecutor, however, objected to this evidence. The basis of the objection was never made clear but it appeared as if the prosecutor believed the defendant could not testify to what the officer said. The justice of the peace asked the agent for the defendant to re-phrase her question and no further testimony was heard about the contents of the conversation.

[7] The first question asked by the prosecutor in cross-examination was "Mr. Garrett, you did have a conversation with the officer, correct?" She then proceeded to cross-examine the defendant on his conversation with the officer, including asking him whether he remembered telling the officer that he "always wore his seatbelt". When he replied that he did recall saying that, the prosecutor then proceeded to cross-examine him on his prior driving record, including two prior tickets for failing to wear a seatbelt.

[8] While agent for the defendant did not initially object to this line of cross-examination, she did object when the prosecutor began to cross-examine the defendant on his prior traffic record. In response to the objection, the prosecutor said as follows:

Well, Your Worship, the defendant made a statement, an utterance to the officer at the side of the road which he has accepted in cross-examination that he always wears his seatbelt. So now he has opened the door under W.(D.) for the prosecution to be able to attack his credibility in relation to that.

[9] The learned justice of the peace ruled that the line of questioning was permissible.

[10] The prosecutor also cross-examined the defendant on the fact that he had received and reviewed disclosure prior to testifying, suggesting that the colour of his shirt only became important to him after he reviewed the officer's notes.

[11] In her reasons for judgment, the learned justice of the peace ultimately found that the evidence of the appellant was "not strong enough". It would appear that, from those reasons, factors she considered as weighing against the credibility of the defendant included the possibility that his review of disclosure impacted on his evidence as well as some of the statements he had made to the police at the roadside.

Grounds of Appeal

[12] On appeal it is argued that the learned justice of the peace erred in her application of the principles relating to assessment of credibility, and in particular in her application of the test set out in R. v. W.(D.), [1991] 1 S.C.R. 742. It is further argued that the learned justice of the peace erred in failing to properly consider the evidence of the appellant.

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 as follows (at paragraph 11):

….I am of the view that I must review the record before me and reach my own conclusion on the issue. It is not a matter of deferring to the trial justice's conclusion and intervening only if I conclude that her decision was unreasonable… However, where findings of credibility are in issue, I should accept the trial justice's findings unless they are unreasonable.

Admissibility of Statements

[15] It is a fundamental principal that statements made by a defendant to a person in authority are only admissible at trial if there has been a voir dire to determine voluntariness or an express waiver of that voir dire – see R. v. Erven, [1979] 1 S.C.R. 212.

[16] Any waiver must be express, clear, unequivocal and fully informed. It cannot be implied from silence or a failure on the part of the defendant to raise the issue (see Watt's Manual of Criminal Evidence, 2016, at page 645).

[17] The burden to establish voluntariness rests on the prosecutor. A statement must be found to be voluntary even if the prosecutor does not intend to tender the statement as part of her case but rather wishes to use the statement to discredit the defendant in cross-examination (see R. v. Lizotte (1980), 61 C.C.C. (2d) 423 (Que. C.A.)).

Scope of Cross-Examination

[18] Every defendant has a constitutional right to disclosure of the case against him. As a general rule, it is improper for the prosecutor to suggest that a defendant has tailored his evidence to accord with information he received as part of disclosure in order to attack his credibility. As noted by Justice Doherty in R. v. White, [1999] O.J. No. 258 (C.A.), at paragraph 20:

Not only are the suggestions improper, they are potentially prejudicial. As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure. That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons. Where any such suggestion seeps into the cross-examination of an accused, it must be eradicated by the trial judge.

Analysis

[19] It was impermissible for the prosecutor to cross-examine the defendant on statements made to the police officer without first entering a voir dire into the voluntariness of those statements or making inquiries as to whether or not there was a valid waiver. The learned justice of the peace erred in allowing the cross-examination even though there was no objection made by the agent for the defendant. While this court recognizes the challenges a trial court faces in the complex balancing act that must be undertaken between impartiality and the judicial obligation to ensure a fair trial, nonetheless it was incumbent on the learned justice of the peace to ensure that any evidence heard is first found to be admissible.

[20] The prosecutor's cross-examination of the defendant about his evidence and how it may have been tailored as a result of his receipt of disclosure was also improper and should not have been permitted.

[21] It is difficult to discern from the reasons to what extent either of these factors (the prior statements made at the roadside and the improper cross-examination) impacted on the learned justice of the peace's assessment of credibility. The fact that both were mentioned, however, leads to the inevitable conclusion that they did form at least some part of that assessment.

[22] The appellant was entitled to have his credibility fairly assessed without the influence of improper inferences or potentially inadmissible evidence 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 appellant had she not committed the legal errors that she did in assessing the appellant's credibility.

[23] Accordingly, the appeal is granted and a new trial is ordered.

Released: September 5, 2017

Signed: Justice D.A. Kinsella