Court File and Parties

Ontario Court of Justice

Date: March 14, 2018

Court File No.: Toronto 4860-999-00-0269483B-00

In the Matter of: An appeal under subsection 135 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Toronto Transit Commission

— and —

Fanxun Zeng

Before: Justice H. Pringle

Heard on: December 13, 2017

Reasons for Judgment released on: March 14, 2018

Counsel:

• Derek Knipe, for the Respondent
• Fanxun Zeng, on his own behalf

On appeal from: Conviction entered on August 8, 2016, for Use Invalid Fare Media contrary to section 2.3(a) of the Toronto Transit Commission By-Law

Reasons for Judgment

Justice Pringle:

Introduction

[1] On August 8, 2016, the appellant was convicted of breaching Toronto Transit Commission By-Law, section 2.3(a). He appeals against conviction alone. For the reasons set out below, I am allowing his appeal and ordering a new trial.

The Prosecution Evidence

[2] The appellant was charged that he, on November 6th, 2015, did breach TTC by-law section 2.3(a) by using invalid fare media. The essence of the allegation was that the appellant's manner and route of travel breached the conditions of his TTC transfer, rendering it invalid.

[3] The only witness for the prosecution was TTC officer Terrice Fraser, who was employed with the TTC as a fare inspector. On the date in question, she was stationed at the Spadina station streetcar platform. At this station, streetcars enter a tunnel into the "fare paid" area of Spadina station. As customers exited the streetcars, the officer would inspect them for proof of payment. The appellant was one such customer. He disembarked from the streetcar onto the streetcar platform within Spadina station, and encountered the transit fare officer. In response to the request for proof of payment, the appellant gave the TTC officer a subway station transfer from Midland subway station. The transfer was printed the same day at 11:55 a.m. It was, at the time of the inspection, 2:47 pm.

[4] The TTC officer believed this proof of payment was invalid for two reasons. Firstly, "it was a subway transfer and he was re-entering the subway station using that transfer. The conditions – one of the conditions of a subway transfer is it's not valid for re-entry into the subway system." Secondly, the officer believed the appellant had, based on his comments, improperly interrupted his trip to use an outside washroom. Using a washroom outside would constitute a "stopover" which rendered the transfer invalid.

[5] The appellant was charged. The transfer he used was seized by the TTC officer, initialed, and then lodged in a TTC evidence locker. It was made an exhibit as part of the TTC officer's in-chief testimony.[i]

[6] While cross-examining the TTC officer, the appellant sought a definition of "stopover" and the evidentiary basis underlying this allegation. It became clear that the officer's belief about using an outside washroom was entirely speculative. When she was confronted with the suggestion that the appellant used a washroom inside the subway system, the officer replied, "I don't think so. He did not tell me where." It was common ground at trial that the subway route the appellant travelled, before transferring to a streetcar, included some in-station washrooms.

[7] The appellant then attempted to cross-examine the officer on the route of the TTC streetcar he had exited. The prosecutor objected, stating the questions were irrelevant and that this officer, being a fare inspection officer, could not answer questions about TTC service. The Justice of the Peace sustained the objection. After confirming that the officer's definition of improper "re-entry" meant "re-entry into the subway station", the appellant completed his cross-examination.

[8] The prosecutor then re-examined her witness. After having objected to the appellant asking service questions of a transit fare inspector, the prosecutor asked at pp. 18-19:

Q. Officer, the transfer that you seized from the defendant, what time was it issued at?

A. The time it was printed?

Q. Yes.

A. It was printed at 11:55 a.m.

Q. Okay. And the time that you found the defendant at Spadina station was?

A. Approximately 2:45 p.m.

Q. Okay. And so how long is that?

A. Approximately three hours.

Q. Three hours. So, from Midland station, to get to Spadina and Bloor perhaps, would it take three hours?

A. No, it would not.

[9] This re-examination adduced the transit fare inspector's opinion about service routes. It also introduced an entirely new theory of guilt in re-examination. For the first time, the appellant was confronted with the theory that it would take between 20 and 30 minutes to get from Midland to Spadina, and thus his 2 hour and 50 minute travel period was not "reasonable".

[10] The Court permitted further cross-examination, following the introduction of this new topic and the following transpired at pp. 19-20:

Q. So, if without any delay by TTC from Midland to Spadina, about how long would that take?

A. I would say approximately 20 minutes.

Q. You mean from Midland to Spadina, 20 minutes?

A. Approximately 20 minutes.

Q. So can you describe from what route that you would say that it takes 20 minutes?

A. From line 2 on the subway.

Q. But Midland's not on line 2.

A. It does connect.

Q. I don't understand how can Midland – that you said Midland to Spadina 20 minutes, because from, from Kennedy to Spadina it takes half-an-hour.

A. I did say "approximately." I do not frequent the TTC. It was my estimate.

Q. So, any evidence for your guess? Have you experienced it personally? What – based on what did you mention about the duration?

THE COURT: She's saying "approximately". She didn't say, "exactly 20 minutes." She's saying approximately. It could be 30 minutes; it could be 20 minutes. I mean, she didn't say that. I'm, I'm not here to defend, but I'm just clarifying also.

Q. But I don't think you have personal experience by saying that. Is that true; you have no personal experience to state that?

A. I do use the subway station in my travels while I am on duty. I do have some experience to say approximately 20 minutes.

Q. I don't think you have ride (sic) from Midland to Spadina. Is that true?

THE COURT: Sir, sir, sir. What you are saying is that you are – I want you to respect the officer. She gave an approximation. You ask question about what she said and you don't, I mean, accused her or not knowing. That's beyond …

THE DEFENDANT: Well, maybe the, the translation is not accurately reflect of what I meant to say.

THE COURT: Okay.

[emphasis added]

[11] The prosecutor interjected with a second re-examination. At this juncture, the appellant did not appear to be finished asking questions about the new theory of liability raised during the prosecutor's first re-examination. At pp. 20-21, the prosecutor asked:

THE PROSECUTOR: Your Worship, perhaps just to add one question, just to clarify. Officer, is it reasonable to get on Midland subway train and take three hours to get to Spadina?

A. No, it's not.

Q. Because that is how long the, the actual transfer is for; is that true?

A. Can you clarify the question?

Q. From the time he, he took the transfer, to the time you met him, that is the duration of time; three hours? You need to answer.

A. Oh, I'm sorry. Well, the approximate, like I said, it would be approximately 20 minutes. The transfer was clearly in violation. Three hours is not a reasonable time.

[12] The appellant completed his cross-examination on the new topic, by asking if the officer had ever been to Midland station. This was obviously an attempt to get at the issue the Justice of the Peace earlier disallowed, that being whether the officer had personally traveled from Midland to Spadina. The officer confirmed that she had been to Midland station. Her testimony was then complete.

The Defence Evidence

[13] The appellant testified in his own defence. He attempted to submit documentary evidence in the form of a TTC day pass, dated March 22nd, 2016. Upon objection, he explained that the date of the day pass was not important, but that he intended to comparatively use its conditions in oral submissions. The evidence was excluded and not made a lettered exhibit.[ii]

[14] The appellant testified that on November 6th, 2015, at 11:55 a.m., he used a token to enter Midland station and obtained a transfer. From there, he took the RT (Rapid Transit) to Ellesmere subway station. He planned to take the 95 bus from Ellesmere to York Mills subway station. The arrival of the 95 bus at Ellesmere station was substantially delayed, but he waited. When the 95 bus did arrive, the appellant took it to York Mills subway station and got on the subway travelling southbound.

[15] While on the southbound subway, he experienced stomach upset. Although the appellant described the stomach upset in some detail, suffice it to say he needed to use the washroom urgently and got off at Eglinton station. He used the washroom located inside Eglinton subway station. The appellant spent "a long time" inside that washroom. He then got back on the subway, having never exited Eglinton station at all, and continued southbound to Union station.

[16] Arriving at Union station, he noticed a connecting 510 streetcar that would take him from Union station to Spadina. Instead of staying on the subway car he was on, which would have looped around and taken him from Union station to Spadina station, he chose to travel to Spadina station by streetcar above ground. He explained that he wanted to travel above ground so he could call a waiting friend and advise he was delayed. There was no phone signal in the underground subway system. The appellant tried to submit his cell phone as proof.

[17] The appellant testified that, to his belief (based on hearsay he subsequently received from the TTC), he was not "re-entering" the subway by disembarking from a streetcar that stopped inside Spadina station. The hearsay aspect was properly excluded, but the appellant's clear position was that he had not "re-entered" the subway by being on a streetcar that stopped inside Spadina station.

[18] The four pages of cross-examination did not materially change this narrative. The prosecutor suggested it was not reasonable for the appellant to take the 95 bus from Ellesmere, instead of a subway, to York Mills station. The appellant replied that in his view it was. The prosecutor established the appellant lived at Spadina and Dundas. When asked what his destination was upon leaving Union station, he answered "downtown". The prosecutor pointed out that Union station was downtown and asked again where he was going, to which the appellant replied "At the beginning I did not plan to go to the Spadina subway station. Downtown is correct". There were no more questions and no more defence evidence.

Reasons for Conviction

[19] The appellant was charged that he breached TTC by-law section 2.3(a), which reads "Fare media shall be valid for the period as indicated on the fare media". Subsection (b) makes it an offence to breach the conditions of fare media. Fare media, colloquially speaking, is a transfer that allows people to move about Toronto using the TTC system, subject to terms and conditions written on the back.

[20] On August 8th, 2015, the Justice of the Peace rendered judgment and convicted the appellant. He correctly turned his mind to the onus and burden of proof. He concluded the offence was a strict liability offence and that the burden rested on the prosecution to prove the case beyond a reasonable doubt.

[21] His Worship reviewed the evidence of the TTC fare officer and the appellant. He also read out the conditions of the TTC transfer, from Exhibit 1, as follows:

The transfer can be used at TTC transfer point for one-way continuous trip with no backtracking. Most direct route must be taken. The conditions of use of transfer must be obtained from station where fare is paid…Conditions of transfer. Must be obtained from station where fare is paid and cannot be used on surface vehicle at station where issued. Not valid for entry[iii] into the subway system. Must be used at first available transfer point. Cannot walk to the next stop. Must be used on day of issue within reasonable time along[iv] to the transfer point. Not valid for stopover. Must be used by the person to whom issued. Must be retained and shown when requested on proof of payment route.

[22] His Worship then considered whether the appellant breached three specific conditions:

(i) whether his trip was a one-way continuous trip with no backtracking and taking the most direct route;

(ii) whether the appellant 're-entered' the subway system;

(iii) whether the appellant made his trip within a reasonable time to the transfer point and with no invalid stopover.

[23] His Worship ruled against the appellant on all three points. While accepting that the appellant's trip was a "bizarre" one-way trip, it did not take the "most direct route" to get to Spadina station because it took three hours instead of 20 to 30 minutes. He found the appellant re-entered the subway system because "he entered the offloading platform of Spadina subway station." He found using the washroom was not a "stopover" and accepted the appellant used a washroom inside Eglinton subway station. However, using a transfer for almost three hours, when the trip could have been done in 20 to 30 minutes, was not reasonable.

The Justice of the Peace analyzed the evidence by application of R. v. W.(D.), [1991] 1 S.C.R. 742, an analysis I will not review given my decision in this appeal. However I must observe that during this analysis, the presiding justice misapprehended the appellant's evidence and used that misapprehension to draw a negative credibility assessment against the appellant: see page 14 at lines 15-21 and again at page 125, lines 25-29.[v]

A New Trial Must Be Ordered

[24] This conviction rested heavily on the conclusion that it was unreasonable for the appellant's trip to take 2 hours and 50 minutes. For example, at pp. 11 and 12, the Justice of the Peace found that:

…I accept that it was continuous trip that didn't take the most direct route to get to the Spadina subway station. His trip took approximately three hours, instead of 20 to 30 minutes.

I don't accept as reasonable to take a transfer for almost three hours when Mr. Zeng could have done it in less than 30 minutes.

[25] On appeal, the appellant argued the Justice of the Peace should not have reached this conclusion. There are no time limits on TTC travel, he submitted, and the conditions of the transfer read "must be used on day of issue within reasonable time allowance to the transfer point". The yardstick of "reasonableness" should measure the time to get to the first transfer point, and not the entire trip. In oral argument, he appellant submitted that the officer's estimate of between 20 and 30 minutes to get from Midland and Spadina was incorrect. His notice of appeal alleged that this general theory of guilt was raised "at the end of trial" and was unfair. The respondent, conversely, argued that the issue was fully determined at trial and the appellant could not be permitted to improperly re-litigate this finding of fact on appeal. The respondent objected to documentation the appellant attempted to rely on, in attempting to make these points during his appeal. Given this opposition and the fact that none of it was properly "fresh evidence", I have relied on none of the appellant's new material.

[26] The respondent is correct that I cannot accept the appellant's evidentiary submission, on appeal, that it takes more than 20 or 30 minutes to get from point A to point B on the subway. However, the appellant is correct that the manner in which this issue was raised at trial was unfair. There are two irremediable problems with the way this "unreasonable time" evidence was adduced from the TTC officer. Firstly, this new theory of liability was improperly raised for the first time in re-examination. Secondly, the Justice of the Peace wrongly refused to permit the appellant to ask the witness for the evidentiary basis underlying her time estimate. Both errors lead to the same result, the order of a new trial.

The Improper Re-Examination

[27] As stated above, in direct examination the fare compliance officer provided two bases for charging the appellant – he had used a washroom somewhere, which was a "stopover", and he was in violation of the prohibition against "re-entry" into the subway system. The fare officer was cross-examined on these two issues. But once cross-examination was complete, the prosecutor's re-examination raised a new theory of liability – that it would have taken between 20 to 30 minutes to get from Midland to Spadina station, and that a travel period of almost three hours was therefore "unreasonable". This followed the prosecutor's successful objection to the appellant asking questions about TTC "service".

[28] Leaving that aside, the appellant thought he understood the prosecution's theory of liability after direct examination of the officer was complete. He cross-examined the officer based on his understanding of their theory of liability. More particularly, he properly restricted his cross-examination to the issue of "stopover" and "re-entry" into the subway system. He did not raise the issue of how long it took him to get from Midland to Spadina. He did not raise the question of whether his trip was completed in a reasonable time or not. Accordingly, the prosecutor should not have been permitted to adduce evidence on this new issue in re-examination.

[29] There are strict parameters about when and why re-examination will be permissible. Re-examination is limited to matters about which the witness was cross-examined. The purpose is to have the witness clarify or qualify answers given during cross-examination: see R. v. Candir, 2009 ONCA 915 at para. 148:

It is fundamental that the permissible scope of re-examination is linked to its purpose and the subject-matter on which the witness has been cross-examined. The purpose of re-examination is largely rehabilitative and explanatory. The witness is afforded the opportunity, under questioning by the examiner who called the witness in the first place, to explain, clarify or qualify answers given in cross-examination that are considered damaging to the examiner's case. The examiner has no right to introduce new subjects in re-examination, topics that should have been covered, if at all, in examination in-chief of the witness. A trial judge has a discretion, however, to grant leave to the party calling a witness to introduce new subjects in re-examination, but must afford the opposing party the right of further cross-examination on the new facts: R. v. Moore (1984), 15 C.C.C. (3d) 541 (Ont. C.A.), at p. 568.

[30] In the case at bar, the prosecutor did not seek leave to raise a new issue during re-examination. Had leave been sought, it should not have been granted. Re-examining to raise an entirely new theory of liability is not an exception to the rule stated above. In addition, although the Justice of the Peace correctly permitted further cross-examination on the topic, he then refused to permit the appellant to ask the officer for the basis underlying her "travel time" estimates. The Court objected to this at pp. 19-20:

Q. So can you describe from what route that you would say that it takes 20 minutes?

A. From line 2 on the subway.

Q. But Midland's not on line 2.

A. It does connect.

Q. I don't understand how can Midland – that you said Midland to Spadina 20 minutes, because from, from Kennedy to Spadina it takes half-an-hour.

A. I did say "approximately." I do not frequent the TTC. It was my estimate.

Q. So, any evidence for your guess? Have you experienced it personally? What – based on what did you mention about the duration?

THE COURT: She's saying "approximately". She didn't say, "exactly 20 minutes." She's saying approximately. It could be 30 minutes; it could be 20 minutes. I mean, she didn't say that. I'm, I'm not here to defend, but I'm just clarifying also.

Q. But I don't think you have personal experience by saying that. Is that true; you have no personal experience to state that?

A. I do use the subway station in my travels while I am on duty. I do have some experience to say approximately 20 minutes.

Q. I don't think you have ride (sic) from Midland to Spadina. Is that true?

THE COURT: Sir, sir, sir. What you are saying is that you are – I want you to respect the officer. She gave an approximation. You ask question about what she said and you don't, I mean, accused her or not knowing. That's beyond…

[31] The appellant was entirely within his rights to ask for the evidentiary basis underlying the officer's time estimate of 20 to 30 minutes from Midland to Spadina. Respectfully, the appellant was entirely within his rights to 'accuse' the officer of 'not knowing', particularly after the officer said she did not frequent the TTC. The appellant was entirely within his rights to ask if the officer had ever taken the TTC from Midland to Spadina. Inquiring into the credibility and reliability of in-chief testimony is the entire point of cross-examination.

[32] In convicting the appellant, the Court relied on the officer's 20 to 30 minute travel time estimate to conclude that the total travel time was unreasonable. Permitting re-examination on this new theory of liability, when the topic had not been raised in cross-examination, was an error in law. This error was exacerbated when the Justice of the Peace wrongly prohibited the appellant from asking for the evidentiary basis underlying the officer's belief. In addition, permitting the prosecutor to interrupt cross-examination on this new theory of liability, to ask yet more "clarifying" questions, was procedurally improper. The end result is that I am not confident that the "time estimate" issue was fully or fairly litigated at trial. Given the direct route between these errors and the conviction of the appellant, I am of the view that a new trial must be ordered.

[33] Before reaching this conclusion, I considered whether the appellant's conviction could be sustained on the basis that his exit from the Spadina streetcar was a "re-entry" prohibited by the fare media. On appeal, the appellant argued a guilty verdict on this basis alone was unreasonable, because there was no evidence to support the conclusion that he entered the subway. I do not agree a verdict on this basis alone would be unreasonable, although the prosecution's case on this theory was weak. I do find, however, that the appellant's conviction cannot be sustained on this basis alone.

[34] The evidence at trial did not directly establish the appellant was entering the subway car when stopped by the officer. He was disembarking from a streetcar onto a streetcar off-loading platform when he was stopped. The streetcar had driven into Spadina station automatically. Spadina station, on this evidence, clearly had more than one purpose – people could get on and off streetcars from the streetcar platforms, people could enter the subway from the subway platform, and as was fairly conceded by the respondent, people could exit a streetcar and leave the TTC system entirely.

[35] As I interpret the meaning of "re-entry" into the subway system, it does not include people who disembark from a streetcar at a subway station and then leave the TTC system entirely. Prohibiting "re-entry" is obviously meant to capture persons who are impermissibly using the subway again. Otherwise, every person who takes a subway, transfers to the streetcar, and then exits the streetcar at a stop which includes a subway station would be in violation of the by-law the moment they stepped off the streetcar – even if their only intention was to exit the TTC system and walk to their nearby home.

[36] Returning to the evidence at trial, the fare officer was stationed at the streetcar platform. The appellant disembarked from the streetcar, onto the streetcar platform, where the fare officer stopped him. There was no direct evidence adduced that the appellant was entering a subway car, or walking to a subway platform, or intended to do either, when the officer stopped him. At best, the conclusion that the appellant intended to re-use the subway rested on circumstantial evidence and the drawing of inferences.

[37] On this record, there were two reasonable inferences available to the court: that the appellant intended to impermissibly take a subway after he exited the streetcar, or that he intended to exit the TTC system and go outside after he exited the streetcar. The prosecution, in order to establish circumstantial guilt, had to negative all reasonable inferences inconsistent with guilt: see R. v. Villaroman, 2016 SCC 33 at para. 37. The Justice of the Peace did not assess the latter inference and in my view, the prosecution's case did not disprove it. This alone occasions error. However, it also confirms that the appellant's conviction cannot rest safely on the basis of impermissible "re-entry" into the subway.

[38] In considering whether the errors occasioned here are curable, I am also troubled by the unexplained absence of Exhibit 1, the appellant's fare transfer, from the appellate record. When I inquired as to its whereabouts, given the appellant was convicted of failing to follow the conditions written on the back of this same fare transfer, I received no satisfactory explanation. I was informed that exhibits are held for 30 days, to ascertain whether an appeal would be filed, and then returned to the City. I am given to understand that if an appeal is filed, court administration ensures the trial exhibits become part of the court's appeal file. In this case, notice of appeal was filed within 30 days, but the exhibit appears to have been lost. The prosecution attempted to locate it, but to no avail. The appellant advised that the first time he was told the exhibit was lost was on the day he argued his appeal. As a result, the appeal simply proceeded without it. Given that I do not have a full evidentiary record before me, I cannot safely say that the result at trial would have been same despite the errors.

[39] Finally given my findings above, I will address the appellant's other main ground of appeal only briefly. There is practical logic to his submission that he was convicted under the wrong subsection. The charge against the appellant was that he breached TTC by-law section 2.3(a), which reads "Fare media shall be valid for the period as indicated on the fare media". Subsection (b) makes it an offence to breach the conditions of fare media. Fare media, colloquially speaking, is a transfer that allows people to move about Toronto using the TTC system, subject to terms and conditions written on the back. The appellant was convicted for breaching a condition of his transfer, which technically is an offence under subsection (b).

[40] However, I read the two subsections as working in conjunction with one another, and that failure to follow the conditions of the transfer renders it invalid. If there was an error here, in my view it would be cured, without prejudice, by amendment to subsection (b). No matter what subsection the charge referred to, he clearly understood that his compliance with the conditions of the fare media were at issue here. No complaint of prejudice could be valid in these circumstances.

[41] However, for the reasons expressed above, a new trial must be ordered in this case. No doubt the prosecution will consider whether the expenditure of a second trial is in the public interest, given the passage of time and the apparent loss of Exhibit #1.

[42] The appellant is ordered to appear, personally or by agent, on Thursday, April 26th, 2018, at 1:30 p.m., in courtroom #C6, at 70 Centre Avenue, Toronto, Ontario, to set a new date for his retrial.

Released: March 14, 2018

Signed: Justice Heather Pringle

Footnotes

[i] Before the transfer was made an exhibit, the prosecutor showed it to the defendant who was self-represented and not testifying at the time. The prosecutor then had the appellant confirm, for the record, that this was the transfer he used on the day in question. This happened during the Crown's case and before the appellant had elected to testify. Since I am allowing this appeal on other grounds, it is unnecessary to analyze this in detail. Suffice it to say that the prosecution cannot require anyone to confirm any piece of evidence, unless they have elected to testify and are in the witness stand.

[ii] Given the result on appeal, I have not analyzed this issue. For future reference, when a ruling is made to exclude evidence from trial, the proposed evidence must still be made a lettered exhibit. In this way, should the decision to challenge the ruling be made on appeal, the appeal court has the material and can properly assess the impugned ruling.

[iii] Presumably, this is supposed to read "not valid for re-entry into the subway system". However, the original exhibit is not available to confirm this.

[iv] This also appears to be a typo, and is probably meant to read "reasonable time allowance to the transfer point." I make this observation based on a TTC transfer that the appellant attempted to tender as fresh evidence, which was met by opposition by the respondent. Again, the original exhibit is not available to confirm the correct wording.

[v] The appellant's testimony was that he waited a long time for the Ellesmere bus to arrive. In deciding to wait for that particular bus, he relied on the time of arrival shown on the TTC sign. It turned out the time of arrival on the TTC sign was incorrect, and he waited far longer than expected as a result. The appellant did not say he took that bus because he wanted to make a phone call. There was no inconsistency. He referenced his phone to explain that because there was no wifi access for his phone, he relied on the TTC sign to find out when the bus was supposed to arrive.