ONTARIO COURT OF JUSTICE DATE: 2022·03·11 NEWMARKET

BETWEEN:

WING CHEUNG Appellant

— AND —

THE REGIONAL MUNICIPALITY OF YORK Respondent

PROVINCIAL OFFENCE APPEAL Heard: March 11, 2022 Delivered: March 11, 2022

Mr. C. Gabriel ................................................................................ counsel for the Respondent Mr. J. Davie ........................................................................................ counsel for the Appellant

KENKEL J.:

Introduction

[1] On November 3, 2019, Mr. Cheung was charged with driving while holding or using a hand-held device contrary to s 78.1 of the Highway Traffic Act, RSO 1990 c H.8. Mr. Cheung chose option #3 on the back of the ticket and provided notice he wished to appear to set a trial date. The trial was eventually scheduled for October 14, 2021. Mr. Cheung attended his trial and chose to plead guilty to the offence. He was sentenced to the minimum set fine of $500 and given 6 months to pay the fine and the surcharge.

[2] Mr. Cheung appeals his conviction and seeks to strike his guilty plea. He submits that the prosecutor failed to provide him with advice regarding his plea and the court did not conduct a plea inquiry, so his plea was uninformed. In particular, the appellant submits that he was not informed by the prosecutor or court about the potential insurance consequences of his conviction.

The Plea

[3] The Notice of Trial included information about disclosure and a web link to a Guide for self-represented defendants. Disclosure was emailed to Mr. Cheung 18 months prior to the trial date. Two months after the disclosure was sent, a Regional prosecutor emailed an Offer to Resolve to Mr. Cheung on June 15th, 2020. Normally this court would not review pre-trial correspondence between the prosecutor’s office and a self-represented person, but Mr. Cheung cites this and other communications in his appeal, stating that the Regional prosecutors did not advise him of the consequences of pleading guilty so his guilty plea was uninformed and involuntary.

[4] The Offer to Resolve advised Mr. Cheung that the prosecution was seeking a guilty plea to the charge “as is” for the set fine with 3 demerit points and a mandatory suspension. Mr. Cheung responded to the prosecutor indicating that he did not wish to dispute the charge, but he was seeking a lower fine.

[5] On the day set for trial, Mr. Cheung told the Justice of the Peace he wished to plead guilty. The prosecutor and then the court clerk on arraignment both reminded him on the record prior to his plea of the mandatory suspension.

Communication with the Prosecutor

[6] A provincial offence prosecutor is under no obligation to provide legal advice to an accused person and given their role it’s important that they do not do so. In a court where so many accused persons are unrepresented, prosecutors should provide all parties with the position of their office on resolution. That information should include any fine requested and any period of license suspension.

[7] The prosecutor’s office in this case provided all that information and mentioned the fact of demerit points for a first offence. Prosecutors are not obliged to mention administrative consequences such as demerit points, but it was not an error to do so as a courtesy.

[8] Mr. Cheung is a licensee in a highly regulated activity. To obtain his driver’s license he had to pass a written test ensuring he was aware of all of the rules of the road and the administrative demerit point system that regulates drivers in Ontario. All drivers are aware through that process that demerit points are applied for certain offences and that they can lose their license if they pass a certain threshold.

The Lack of a s 45 Plea Inquiry

[9] The Provincial Offences Act RSO 1990 c P33 applies to a wide range of offences from absolute liability offences such as speeding to occupational health and safety and environmental offences where there are significant penalties. Section 45 of that Act must be considered in the context of the offence and the regulatory scheme. Unlike criminal offences, traffic matters are often resolved by administrative plea procedures without an appearance in court.

[10] The court in this case did not conduct the plea inquiry set out in s 45. Failure to conduct the inquiry does not affect the validity of the plea – s 45(4). This was a trial date, so Mr. Cheung was aware of his right to proceed with his trial and knew he was giving up that right by choosing to plead guilty. The record shows the plea was voluntary and unequivocal. He was informed of the relevant legal consequences of the plea. The plea is presumptively valid, and this plea process meets all the legal requirements – R v Beckford, 2019 ONCA 998 at para 39.

Not Informed of the Insurance Consequences

[11] Mr. Davie submits that the plea was not voluntary because Mr. Cheung was not informed by the prosecutor or the court of the potential insurance consequences of his guilty plea.

[12] A change in the terms of Mr. Cheung’s insurance contract pursuant to the terms of that contract is not a “legally relevant” collateral consequence of a guilty plea. A conviction for a traffic offence may have numerous practical effects upon a driver, but collateral consequences are only “legally relevant” where they are a state-imposed consequence that flows from the conviction or sentence – R v Wong, 2018 SCC 25 at para 9. In this context, an order on sentence suspending a driver’s license is an example of a relevant state-imposed consequence.

[13] The effect of a conviction on a private insurance contract is a matter between Mr. Cheung and his insurer. The only person in a position to obtain information in that regard was Mr. Cheung. If he chose not to do so in the almost two years leading up to the trial date, that does not render his voluntary plea uninformed or amount to a miscarriage of justice.

Conclusion

[14] The appeal is dismissed.

Delivered: 11 March, 2022.

Justice Joseph F. Kenkel