Ontario Court of Justice

Date: December 23, 2022 Court File No.: 0711 999 00 1589069X

Between:

COUNTY OF ELGIN

— AND —

Kaden Patterson

Before: Justice Glen Donald

Heard on: November 14, 2022 Reasons for Judgment released on: December 23, 2022

Counsel: Jack Huber, counsel for the Prosecutor Stephanie Columbus, agent for the Appellant

DONALD J.:

Overview

[1] On August 1, 2022, the appellant, Mr. Patterson, was stopped by police for operating their motor vehicle within holding or using a cellular phone. The charging document he received from police was a Highway Traffic Act (“HTA”) Certificate of Offence (“ticket”).

[2] On August 7, 2022, six days into his fifteen day statutorily prescribed decision making period [1], the appellant paid the fine set out on the face of ticket. The backside of the ticket makes plain that this constitutes a guilty plea [2].

[3] According to the appellant’s affidavit, about two weeks later he received a letter from the Ministry of Transportation advising him that his licence would be suspended for 30 days. The appellant did not previously know of this consequence and says that, as a result, his plea was not valid/informed. It is on this singular basis that he appeals his conviction.

[4] During oral submissions, I learned that the appellant served his licence suspension in full. Although this renders his appeal moot, counsel indicate that they would benefit from my reasons given the present state of the law – the existence of persuasive authorities, but no apparent binding dicta on the issue.

[5] Mootness aside, I would dismiss this appeal. The following reasons explain my rationale.

Analysis

[6] In Ontario, driving is a highly regulated activity. The common refrain “driving is a privilege and not a right” is rooted in s. 31 of the HTA which provides:

The purpose of this Part is to protect the public by ensuring that,

(a) the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely; and

(b) full driving privileges are granted to novice and probationary drivers only after they acquire experience and develop or improve safe driving skills in controlled conditions.

[7] At the time of the offence, the appellant was an 18 year old novice driver who had not yet obtained his full driving privileges. Indeed, it was the operation of the novice driver regulation [3] that triggered the relevant suspension.

[8] It is against this factual backdrop that I must assess the validity/voluntariness of the appellant’s plea.

[9] In the criminal law context, it has long been held that a valid plea must be voluntary, unequivocal and informed. [4] In this (criminal) context, for a plea to be informed, a person “must be aware of the criminal consequences of the plea as well as the legally relevant collateral consequences”. A legally relevant collateral consequence is one which bears on sufficiently serious legal interests of the accused.” [5]

[10] In R. v. Wong, 2018 SCC 25, the Court grappled with a situation where, after and as a result of his guilty plea and sentence, the offender learned that he risked deportation to China, and thus a potential separation from his wife and young Canadian born daughter. Succinctly, a criminal conviction had immigration consequences. Put differently, something that happened in the criminal law sphere had an unforeseen impact in the immigration law sphere, a clear collateral consequence.

[11] Similarly, in R v. Quick, 2016 ONCA 95, the Ontario Court of Appeal grappled with a situation where the HTA provided a licence suspension [6] that vastly exceeded the length of the one year driving prohibition imposed by the trial judge at a criminal sentencing. This case involves the oft confusing interplay between the Criminal Code and the HTA; two regimes, two significantly disparate outcomes upon one’s ability to drive. In this context, the Court concluded that the HTA licence suspension constituted a collateral consequence that rendered the plea uninformed.

[12] In the appeal before me, the consequences that befell the appellant are the result of the very regulatory scheme which governs the rules of the road in Ontario – the HTA itself. This serves, in my view, to distinguish it from Quick and Wong.

[13] The POA was intended to establish a speedy, efficient and convenient method of dealing [7] with the offences falling under its umbrella.

[14] Despite the intent, in 2011, under the weight of ever-increasing delays in having matters heard, the Law Commission of Ontario released its commissioned report proposing changes to the POA [8]. Their recommendations included the following:

“[e]fficiency of process, we believe must be a guiding consideration to deal with not only simple and uncomplicated POA cases, but also the more complex and lengthy ones” [9].

Conclusion

[15] Had the appellant been successful, in myriad ways, his complete chosen course of conduct, – guilty plea, appeal, trial [10] – would have been wholly inefficient and antithetical to a core purpose of the POA.

[16] In his affidavit the appellant states:

Apart from my belief of the ticket, I considered the fact that I have a lot going on in my life currently and don’t have the time to invest in going to court. I spoke with my mom about the ticket, about the research she had done, about our options and everything I have going on, and decided to pay the ticket.

[17] The evidentiary record before me demonstrates that the appellant derived an immediate benefit from having accessed the simplest process to put the matter behind him – acceptance of his guilt by virtue of fine payment. In exchange for this benefit the administration of justice is entitled to the usual finality associated with guilty pleas [11].

[18] The onus is on the appellant to show that his plea was in fact invalid [12].

[19] The appellant argues that Quick stands for the proposition that unawareness of a licence suspension renders a plea uninformed and suggests that Halton (Regional Municipality) v. Saunders and by inference Toronto (City) v. Clarino were wrongly decided. I disagree.

[20] Collateral consequences are consequences that are secondary to the principal process. Moreover, the ultimate issue to be determined when enquiring about a whether a guilty plea was sufficiently informed is whether the process was fundamentally fair. [13]

[21] As my colleague, Justice Rondinelli, explained in R. v. Al-Bawi, 2022 ONCJ 411 because Mr. Patterson paid the ticket without setting a date for trial, there is no transcript or decision of a Justice of the Peace to review. Therefore, this court must be satisfied that it is in the “ends of justice” [14] to direct a new trial.

[22] The appellant voluntarily selected into a class of individuals seeking the privilege to drive on Ontario’s public roads. In addition to paying fees annually drivers are expected to familiarize themselves with and understand the rules of the regime. Some rules, such as how to behave at a stop sign, are relatively straightforward. Others, such as the interpretation of pictogram-only road signs, are more nuanced and require a modicum of effort to understand. In both instances road safety requires drivers to be knowledgeable about the rules.

[23] By extension, in my view, it is reasonable to expect licenced drivers to be/become aware of the consequences (demerit points and licence suspensions) that can be incurred when they violate the rules of the regime in which they seek to gain/maintain full admittance. Penalties form an important part of the rule set that every licenced driver ought to be aware.

[24] Thus, when one undertakes activities in a highly regulated area like driving, and then takes advantage of the simplified plea entering process, it will be exceedingly rare for them to be able to set aside their plea on an “fundamental fairness”/“ends of justice” ground when the “unknown” consequence is either a licence suspension, the accumulation of demerit points or any other readily discernable penalty set out in the governing legislation.

[25] The suspension suffered by the Mr. Patterson was triggered by the regulations governing “novice drivers”. Despite that this consequence requires referencing the HTA regulation governing “novice drivers” (and therefore is a half-step less direct than merely needing to reference the charging statute) I remain satisfied that this is a direct consequence and thus not a secondary or collateral consequence. As the appeal record makes clear, all the information in question was available, in an easily comprehensible fashion, on the Ministry of Transportation website.

[26] Most importantly, in all of the circumstances, I am satisfied that the process was fundamentally fair to the appellant and he has most certainly not persuaded me otherwise. It follows that he has not persuaded me that the ends of justice require the trial that the appellant initially chose to forgo.

[27] For these reasons his appeal is dismissed.

G. S. Donald J.

[1] Section 9(1) of the Provincial Offences Act (“POA”) [2] Section 8 of the POA [3] O. Reg 320/94 [4] R. v. Wong, 2018 SCC 25 at para. 3 [5] Ibid at para 4 [6] An indefinite length licence suspension upon a truck driving offender who needed their licence to maintain employment in that industry. [7] R. v. Jamieson, 1981 OJ No. 1937 [8] In 2008 the Ontario average number of days from request for a hearing to disposition was 207.1 days for a Part I offence and 276.8 for a Part III matter. [9] Law Commission of Ontario, Modernizing the Provincial Offences Act: A New Framework and Other Reforms (Final Report, August 2011) (Toronto: Law Commission of Ontario, 2011) at page 34 [10] In some cases of this nature another step, a request for reopening, adds to the inefficiencies. [11] Wong, supra note 4 at par. 61 [12] Ibid at para 62 [13] Ibid at para 68 [14] POA s. 138(1)