Court File and Parties

Ontario Court of Justice

Date: 2019-05-10

Court File No.: Newmarket 9506-772Z

Between:

Wei Qi Appellant

— And —

The Regional Municipality of York Respondent

Provincial Offence Appeal

Heard: May 10, 2019

Released: May 10, 2019

Counsel

Ms. J. Gallin ..................... counsel for the Respondent

Ms. W. Qi ......................... appearing on her own behalf

Decision

KENKEL J.:

[1] Conviction and Charge

[1] Ms. Wei Qi was convicted at trial of Failing to Stop for Amber Light contrary to s. 144(15) of the Highway Traffic Act RSO 1990 c H.8.

[2] Issue on Appeal

[2] The issue on this appeal – whether the Justice of the Peace erred in refusing an adjournment and proceeding with the trial where the appellant received disclosure on the trial date.

[3] Background and Disclosure Timeline

[3] Ms. Qi was charged with two offences on March 12, 2017. A notice of trial was sent May 31, 2017 and likely received in early June. With the Notice of Trial defendants receive detailed instructions about requesting disclosure. They're advised that disclosure requests can take six weeks to process. She was also advised to review the online Guide for Defendants in Provincial Offence Cases. The guide also repeats the need to request disclosure. Ms. Qi did not request disclosure until February 8, 2018 which was five weeks before the trial. The officer's notes (described as two notebook pages) and the in-car-camera (ICC) video showing the alleged offence were provided to the defendant on the day of trial.

[4] Trial Date Proceedings

[4] The matter was held down and Ms. Qi watched the brief video showing the alleged offence prior to the matter being called. She later told the court she didn't understand the officer's notes even with the assistance of a Mandarin interpreter. The matter was held down again and the officer read her the notes through the Mandarin interpreter. Ms. Qi has a high proficiency in English sufficient for her program at Sheridan College and she had the further assistance of a Mandarin interpreter on the trial date so there was no language barrier limiting Ms. Qi's understanding or participation in the trial.

[5] Adjournment Request and Consent to Proceed

[5] Ms. Qi requested an adjournment of the trial which was refused. After again viewing the video and the officer's notes Ms. Qi agreed to proceed with her trial:

THE COURT – Okay, so you want to conduct your trial?

WEI QI – Yes.

(pages 6-7)

[6] Trial Evidence and Proceedings

[6] PC Komdeur testified that one vehicle entered an intersection after the light turned amber. Then a second and a half later Ms. Qi's car entered the same intersection just before the light turned red. The ICC video was played and the accused's car was identified as the third car back from the intersection when the light turned amber at 16:06:40. (p.18) Her vehicle was away from the intersection when the light changed and the second to go through on the light about 4 seconds after it changed to amber. Ms. Qi did not cross-examine the officer. When the prosecution closed its case she did not call any evidence. She told the court that she did not prepare for her trial and she made no submissions.

[7] Appellant's Submissions

[7] The Appellant submits that her trial was unfair. She says her right to disclosure under s. 7 of the Charter was breached and she was unable to prepare. The appellant submits that she was not given any instruction as to how to obtain disclosure by the court. The Justice of the Peace demonstrated bias against her by proceeding when she was not prepared.

[8] Analysis – Disclosure and Instructions

[8] Ms. Qi was advised of the need to obtain disclosure in the Notice of Trial. The same notice referred to the online guide for further information. The guide provides similar disclosure information. Disclosure was not delayed because Ms. Qi did not understand the need to apply. She plainly understood and did seek disclosure prior to trial. The delay came solely from the fact that she waited from June of 2017 to February 8th 2018 to make the application. Given the late request the disclosure was not provided prior to the trial date, but was available at trial and she was twice given time to review it before the case began.

[9] Complexity and Adjournment Principles

[9] There are some cases in which a trial may have to be adjourned even with witnesses present despite the fact that the accused was responsible for late disclosure. Where a charge or case is of sufficient complexity that a fair trial could not be held, the court may have to adjourn the matter unless there is evidence that the lack of preparation was deliberate. As two judges of this court have observed, Part I provincial offences are not typically complex to that degree. See: [R v Jakhu Ontario Court of Justice Misener J. April 18, 2019 (Unreported)], R v Wei 2017 ONCJ 878. On the contrary, in almost all such cases holding the matter down for a time to permit review of the disclosure will be sufficient to permit the matter to fairly proceed.

[10] Application to This Case

[10] This case provides a good example of a matter where time provided on the day of trial was sufficient to permit the defendant to complete preparation of her defence. There was nothing complex. Section 144(15) requires every driver to stop for an amber light "if he or she can do so safely". The events here were captured on video so the parties not only had a full view of what happened but also the precise times when the light turned amber and when Ms. Qi's vehicle entered the intersection. The entire incident was measured in a few seconds. Ms. Qi had 8 months to reflect on the event and plan her defence. Even though it was left to the last minute, watching the video and a review of the brief notes prior to arraignment in this case provided sufficient time to complete her trial preparation. She plainly would have been able to advance a defence if she chose to do so.

[11] Conclusion on Fairness

[11] The Justice of the Peace did not err in proceeding with the trial. He took appropriate steps to ensure that the trial would be fair. He dismissed one charge at the close of the prosecution case. After the officer testified and the video was played, the fact that the appellant chose not to participate further or make submissions appears simply to reflect the strength of the evidence which the court found proved the accused had "plenty of time" to stop (p.29).

[12] Decision

[12] The appeal is dismissed.

Released: May 10, 2019

Justice Joseph F. Kenkel