ONTARIO COURT OF JUSTICE

DATE: 2022 11 16

BETWEEN:

TORONTO (CITY) (Respondent)

— AND —

JAMES SINGH (Appellant)

Before: Justice V. Rondinelli

Heard on: October 12, 2022

Reasons for Judgment released on: November 16, 2022

Counsel: D. Doherty, for the Appellant M. Rose, for the Respondent

Rondinelli J.:

Introduction

[1] The Appellant received a ticket for speeding at a rate of 82 km/hr in a 50 km/hr zone on August 25, 2021 and subsequently pre-paid the fine indicated on the ticket.

[2] As a novice driver, the Appellant received notice from the Ministry of Transportation that his licence would be suspended for 30 days due to this infraction.

[3] The Appellant appeals to this court claiming that had he known that paying the ticket would have led to a 30-day driver’s licence suspension, he would instead have opted for a trial. He asks this court to set aside his de facto guilty plea, and order a new trial.

Analysis

[4] In Toronto (City) v. Clarino, 2022 ONCJ 524, released on November 16, 2022, I held that the analysis in R. v. Wong, 2018 SCC 25 as it relates to “legally relevant collateral consequence” does not apply to a driver’s licence suspension stemming from a guilty plea to driving while using a hand-held wireless communication device contrary to s. 78.1(1) of the Highway Traffic Act. In Clarino, I explained that a driver’s licence suspension is a direct penalty for the offence of driving while using a hand-held wireless communication device – and not a collateral consequence such as immigration consequences flowing from a guilty plea in a criminal matter as was the case in Wong.

[5] In my view, the same can be said in this case. The Appellant’s driver’s licence suspension is a direct consequence of being a novice driver and travelling over the speed limit by 30 to 49 kilometres per hour: See O. Reg. 340/94, ss. 9(2)(a) and 9(3)3.

[6] As I observed in Clarino, at para. 10, the privilege of driving in Ontario should carry with it some expectations that drivers will try to avail themselves of pertinent information as it relates to Part I matters. This duty is heightened with respect to novice drivers. The whole point of a graduated licence system is to grant novice drivers time to practice and gain driving experience over time. By complying with the rules imposed for novice drivers, such drivers demonstrate that they have earned the privilege of transitioning into a full G class licence.

[7] In this case, the Appellant states in his affidavit:

The “Important” information contained on the certificate of offence explained that my licence could be suspended for a default fine. Still, there was no mention of a licence suspension for a novice driver due to paying the ticket.

I was not aware that my driver’s licence could be suspended as a novice driver due to paying the fine. I would have proceeded otherwise if I had been fully aware of the consequences.

[8] The Appellant does not indicate if the suspension poses any particular undue hardship to him. [1]

[9] As mentioned, the direct penalty of the driver’s licence suspension for this offence can be found in the Regulations. Further, a telephone call to the Ministry of Transportation or a short consultation with a paralegal agent would result in a quick answer relating to associated penalties for this offence. Indeed, the Appellant did retain a paralegal agent to assist with this appeal, so it was within his realm of knowledge that assistance with this matter existed.

[10] Also, a warning of the consequences of violating any novice condition is provided to every prospective driving applicant in the Official Ministry of Transportation Driver’s Handbook. [2] It states:

Note: If you are a novice driver and are convicted of violating any novice condition, an offence that is associated with four or more demerit points or receive a court-ordered suspension for an offence that would have resulted in four or more demerit points, you will receive the appropriate penalty and Novice Driver Escalating Sanction licence suspension. However, the demerit points will be recorded as zero on your record, and will not be counted towards the accumulated demerit point system.

[11] It is reasonable to expect that information contained in the handbook would be more fresh in the mind of a novice driver than that of a long-time driver.

[12] Lastly, a simple search of “speeding” on the Government of Ontario website [3] returns the following straightforward information:

Novice drivers will face at least a 30-day licence suspension and possible licence cancellation for any conviction for the following offences:

• speeding 30 kilometres per hour or more over the speed limit
• following too closely
• careless driving
• fail to remain at the scene of a collision
• stunt driving

[13] None of these steps are onerous or expensive. As such, it would be reasonable and fair to expect novice drivers to take similar steps in order to hold the privilege of driving in this province. In a highly regulated arena, it should be expected that novice drivers display more due diligence than the Appellant did in this case.

The “Ends of Justice” Test

[14] As I noted in Al-Bawi, the term “ends of justice” in s. 138(1) of the Provincial Offences Act is broad enough to provide a remedy in the appropriate case. In that case, at para. 31, I also proposed the following guidance with respect to affidavits:

Appellants seeking to vacate their guilty pleas should be prepared to file an affidavit in support of their appeal. For appellants represented by paralegal agents or counsel, this should be the norm, not the exception. At a minimum, the affidavit should outline the following:

i) The specific consequence or consequences that the appellant was not aware of when pleading guilty;

ii) If the appellant relied on information provided by a paralegal agent or counsel, that information should be outlined in the appellant’s affidavit and where possible, a corresponding affidavit of the paralegal agent or counsel should also be filed;

iii) The specific impact the conviction is having on the appellant. Confirmatory proof of the impact should form part of the affidavit. For example, a copy of the appellant’s driving abstract or any correspondence with an insurance company, employer, or Ministry of Transportation could be attached as an exhibit to the affidavit; and

iv) What specific steps the appellant would have taken if they were aware of the consequence or consequences.

[15] In Clarino, I proposed the following addition to the affidavit with respect to driver’s licence suspension cases:

• What is the particular undue hardship caused to the appellant by the driver’s licence suspension.

[16] As I concluded in Al-Bawi at paras. 32-34:

Such an affidavit serves a number of salutary purposes. Firstly, in preparation of such affidavits with clients, paralegal agents or counsel would be able to screen claims and advance only those that have sufficient merit for success. Secondly, an affidavit will allow prosecutors to adequately review upcoming appeals and determine whether they should concede particular appeals. Lastly, it will give the appeal court judge ample opportunity to consider the appeal prior to the oral hearing. The net result would be streamlined appeals and avoiding the current situation – at least here at Old City Hall – where there are constant adjournment requests to fill missing gaps of the record and lots of court time expended in calling defendants to provide viva voce evidence.

Finally, if the guilty plea occurred in court, a transcript of that proceeding will be required for the appeal hearing.

In my view, the proposed framework would reduce court strain while maintaining fairness and satisfying the ends of justice.

Conclusion

[17] For all the above reasons, the appeal is dismissed.

Released: November 16, 2022 Signed: Justice V. Rondinelli

[1] It should be noted that the suspension at issue in R. v. Quick, 2016 ONCA 95 was an indefinite driving suspension for a truck driver by trade – clearly a very different situation than a 30-day suspension in the case at bar. [2] See: https://www.ontario.ca/document/official-mto-drivers-handbook/keeping-your-drivers-licence#section-4 [3] See: https://www.ontario.ca/page/speeding-and-aggressive-driving#section-2