Ontario Court of Justice (Provincial Offence Appeal)

Date: 2022·07·08 Newmarket

Between:

YORK (REGIONAL MUNICIPALITY) Appellant

— AND —

KONG FOOK LAI Respondent

Reasons for Decision

Appeal heard and allowed: June 17, 2022 Reasons released: July 8, 2022

Counsel: Ms. Carolyn Galin, Mr. Chris Bendick.............................................. Counsel for York Region Mr. Chris Hicks .............................................................................. Counsel for the Respondent

KENKEL J.:

[1] Mr. Lai was charged with speeding contrary to s 128 of the Highway Traffic Act, RSO 1990 c H.8 (HTA). The prosecution evidence consisted of a certified statement of evidence under s 48.1 of the Provincial Offences Act, RSO 1990 c P.33 (POA). The defendant did not call evidence and the charge was dismissed. The Regional Municipality now appeals on the following ground:

• Whether the court erred in finding that the evidence in the certified statements was not sufficient to prove the charge alleged beyond a reasonable doubt.

[2] The learned Justice of the Peace held that the certified statement evidence was not sufficient to prove the speeding charge alleged because there remained too many “unanswered questions”. The submissions of the agent for the defendant at trial identified the unanswered questions as an argument in this form:

• We don’t know if a speed measurement device was used.
• If a device was used, maybe that device wasn’t recently calibrated.
• Maybe that device was no longer in working order,
• Maybe the device was malfunctioning to such a degree that it displayed a false speed reading.

[3] Counsel Mr. Hicks was retained for the purpose of the appeal. On the hearing date he conceded that the appeal must be allowed. I agree with that conclusion.

[4] The learned Justice of the Peace did not err in directing the trial to proceed. The fact that the prosecution was presenting their case by way of certified statement did not provide grounds for an adjournment.

[5] The “unanswered questions” submissions were not based on any inference arising from the evidence before the court. A trial court must consider alternate theories proposed by the defence, but those theories must be based on inferences reasonably arising from the evidence, not speculation – R v Villaroman, 2016 SCC 33 at para 42. In a similar manner, the theoretical possibility of device error as would be present in any case does not assist the defendant – R v Crosthwait, [1980] SCJ No 30. Mere conjecture is not evidence to the contrary.

[6] As the Municipal Prosecutor submitted at trial, the certified statements in the Certificate of Offence proved each element of the speeding offence. Those statements were deemed proof of those facts in the absence of evidence to the contrary – s 48.1(2) POA. As there was no evidence to the contrary called, there was only one verdict available on the evidence before the court.

[7] The appeal is allowed.

Released: July 8, 2022. Justice Joseph F. Kenkel