DATE: May 19, 2023 Case File No. 4961 999 00 2137401X-00

ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING - v. - HON, YOON T.

JUDGMENT

BEFORE HIS WORSHIP JUSTICE OF THE PEACE R. LEVITA on Friday, May 19, 2023 at 50 High Tech Road, RICHMOND HILL, Ontario

Charge: s. 128 Highway Traffic Act Speeding – 83 km/h in a posted 60 km/h zone.

APPEARANCES

Counsel for the Regional Municipality of York: C. Bendick Municipal Prosecutor: A. McHenry Paralegal for the Defendant: R. Sutherland

LEVITA, J.P. (Orally):

Yoon Hon comes before the Court charged with speeding 83 km/h in a 60 km/h zone contrary to section 128 of the Ontario Highway Traffic Act with an offence date of September 19, 2021.

Before the commencement of trial, the agent representing the defendant brought a Charter motion. The defendant’s notice of trial indicates that the prosecutor will proceed with the case by way of certificate evidence. The prosecutor, in this case, has also confirmed that they would, in fact, proceed in this way.

It is the defendant’s position that by not having the charging officer attend trial, and hence, not having an opportunity to cross-examine them, the defendant’s section 7 and 11(d) Charter rights would be breached in the circumstances of this case.

The remedy being sought here is either a stay of the proceedings pursuant to section 24(1) of the Charter or an order for the officer in charge to attend trial and give evidence.

Some relevant sections of the Provincial Offences Act regarding certificate evidence include section 48.1(1), which essentially states that certified evidence:

Applies to a hearing, including a hearing in the absence of the defendant under section 54, if a) the proceeding for the offence was commenced under Part I or II, and a set fine has been specified for the offence;

Hence, this section applies to speeding offences.

Section 48.1(2) which states:

The following are admissible in evidence as proof of the fact certified in it, in the absence of evidence to the contrary, 1) a certified statement in a certificate of offence.

Section 48.1(3) which states that:

Subsection (2) does not affect admissibility of documents provided for in other Acts that may be admitted into evidence as proof of the facts certified in it.

Section 48.1(4) states the prosecutor must still prove its case beyond a reasonable doubt.

Section 48.1(5) states that the officer who provides certificate evidence is not required to attend to give evidence except as per section 49(4) of the Provincial Offences Act.

The agent, on behalf of the defendant, submits that the officer’s notes mentioned a radar test being done at 8:39 a.m. and that there is no result of the test. There is nothing mentioned about what tests were performed on the device, and nothing was mentioned about whether the tests were performed as per the manufacturer’s suggestion.

There is also mention of a second test of the radar device in the officer’s notes; this occurring at 9:23 a.m. It is submitted, once again, that there is no result of the test, no mention of what tests were performed and whether the tests were done in accordance with the manufacturer’s specifications. It is also submitted that it is not known who tested the device, just that it was tested.

As well, it is submitted that there is nothing mentioned in the officer’s notes about speed signs being posted, obstructions to such signs, and no note about the officer checking those signs and when.

It is submitted that because the defendant can not cross-examine the officer about all of these omissions there would be a Charter breach pursuant to section 7 and 11(d).

With reference to section 7 of the Charter, the right to life, liberty and security of the person. This section of the Charter does not apply absolute liability offences because there is no risk of incarceration. This principle was established in the case of R. v. Polewsky, [2005], 202 CCC (3d) 257 (ONCA), leave refused to the Supreme Court of Canada, [2006] SCCA 37. This case also explained that the risk of imprisonment in the fault of a fine imposed for speeding is sufficiently remote so as not to engage one’s liberty rights under section 7 of the Charter. These principles are also similarly set out in the Supreme Court of Canada case provided by the prosecutor in R. v. Pontes, [1995] 3 SCR 44.

Thus, an accused person convicted under section 128 of the Highway Traffic Act faces no risk of imprisonment and there is accordingly no violation of the right to life, liberty and security of the person under section 7 of the Charter.

With reference to section 11(d) of the Charter and the right to a fair trial and the right to make full answer and defence.

The defendant’s Charter application seeks a stay as one of the remedies. No oral submission with reference to a stay pursuant to section 24(1) of the Charter were made on behalf of the defendant. The legal representative for the defendant advised that their main, and perhaps, only remedy they were focusing on and seeking was that the court order the officer to attend to be examined at trial.

The defendant provided two criminal cases for the Court to consider with reference to the right to cross-examine a witness, and a fair trial. These were the cases of R. v. Lyttle, 2004 SCC 5, [2004] 1 SCR 193 and R. v. Osolin, [1993] 4 SCR 595.

Lyttle was charged with robbery, assault causing bodily harm, kidnapping and possession of a dangerous weapon, while Osolin was charged with sexual assault. It is submitted that both cases essentially stand for the proposition that the right of an accused to cross-examine witnesses for the prosecution without significant and unwarranted constraint is an essential component of the right to make full answer and defence, and cross-examination is a fundamental principle to provide a fair trial to an accused.

The prosecutor argues that the principles regarding cross-examination and section 11(d) of the Charter, as outlined in the Lyttle and Osolin cases, are those as developed by criminal law. It is submitted that principles that were developed in a criminal context must be applied less rigidly or more flexibly in a regulatory context. In this regard, there is a need to balance the rights that were developed in the criminal sphere with the interest of society of having regulatory statutes enforced.

For this proposition, the prosecutor made reference to the case of R. v. Wholesale Travel Group Inc., [1991] 3 SCR 154. In the opinion of Justice Cory at paragraph 151:

Under the contextual approach, constitutional standards developed in the criminal context cannot be applied automatically to regulatory offences. Rather, the content of the Charter right must be determined only after an examination of all relevant factors and in light of the essential differences between the two classes of prohibited activity.

Also at paragraph 187, Justice Cory stated:

Regulatory offences provide for the protection of the public. The societal interests -

THE COURT: Are we able to mute that or turn down the volume completely?

CLERK OF THE COURT: The problem is I can’t, Your Worship...

THE COURT: Okay. That’s fine.

LEVITA, J.P. (Orally): continued

So, sorry. Also at paragraph 187, Justice Cory stated:

Regulatory offences provide for the protection of the public. The societal interests which they safeguard are of fundamental importance. It is absolutely essential that governments have the ability to enforce a standard of reasonable care in activities affecting public welfare. The laudable objectives served by regulatory legislation should not be thwarted by the application of principles developed in another context.

That, of course, being the criminal context. This Court agrees with these principles.

This Court finds the section 11(d) Charter motion, at this stage of the proceedings, to be somewhat premature. There is already a section in the Provincial Offence Act that addresses the issue of compelling the officer’s attendance in order for the defendant to receive a fair trial.

Section 49(4) of the Provincial Offences Act essentially states that if certified evidence is being admitted as evidence in a trial, the Court shall not adjourn the trial for the purpose of having the Provincial Offence officer who provided certificate evidence to attend to give oral evidence, unless the Court is satisfied that the oral evidence of the person is necessary in order to ensure a fair trial.

Only the Justice presiding at trial can issue a summons pursuant to section 49(4). It cannot be issued in the intake court. It shall also be in the form of a summons and not by order of the Court.

The Ontario Court of Appeal case of Waterloo (Regional Municipality) v. Yan, 72 OR (3d) 734, the Court dealt with a red light camera charge where the defendant requested that a summons be issued to the provincial offences officer who issued the certificate of offence pursuant to section 205.20 of the Highway Traffic Act.

The language in section 205.20(3) is analogous to section 49(4) of the Provincial Offences Act. Section 205.20(3) essentially states that no summons shall be issued to a provincial offences officer who issued the certificate of offence for a red light camera charge unless a Justice is satisfied that the defendant will not be able to have a fair trial.

Therefore, the case law under section 205.20(3) of the Highway Traffic Act, as discussed above, is applicable to our analysis under section 49(4) of the Provincial Offences Act.

As set out in paragraphs 18 and 19 of the Yan case, the Court discussed the limits placed upon the cross-examination of the officer in a red light camera matter. Quote:

Cross-examination is an important right. However, for this particular type of offence, prosecuted through this particular legislative mechanism, the red light camera system, the legislature has determined, in the interests of effective traffic safety and control and in the interests of prosecutorial economy, that the right to examine the provincial offences officer in question will be limited.

In this context, I can see no reason in law why the legislature is not permitted to implement such a scheme. The standard to be applied in directing that a summons issued to the provincial offences officer must be interpreted in light of that scheme and the language by which it is put in place.

The use of certified evidence is designed to save the delay and expense of calling the certifier of the evidence, where, prima facie, there is no basis to doubt the accuracy and reliability of the certificate. The situation is not analogous to those in which the liberty of the subject may be at stake. Here, the only sanction that may be imposed is a fine. There is no exposure to imprisonment, probation, loss of licence or loss of demerit points. The limits placed on the examination of a provincial offences officer in red light traffic camera situations reflects a proper balance of the various competing interests.

The point here is that in the context of regulatory offences such as a red light camera charge, placing the limit on the cross-examination of the officer to where you need permission from the Court to do so is proper.

Again, the liberty of the defendant is not at stake. Nobody is going to jail for a red-light camera ticket or a speeding charge.

The Court agrees with such propositions. As set out in the Yan case, it is a proper balance between society’s interest in having regulatory statutes enforced, one in which is designed to address public safety and the rights of an accused and defending a regulatory charge.

The Cochrane v. Ontario (Attorney General), 2008 ONCA 718, 92 OR (3d) 321 case addresses the constitutionality of the pit bull provisions under the Dog Owner Liability Act. It is important to note that a person who is convicted under such provisions may be liable to a fine of up to $10,000, six months imprisonment or both.

Under DOLA, certificate evidence is permitted to prove a dog is a pit bull under section 19(1) of the Act. The provision relating to admissibility and use of veterinarians’ certificates reads as follows:

A document purporting to be signed by a member of the College of Veterinarians of Ontario stating that a dog is a pitbull within the meaning of this Act is receivable in evidence in a prosecution for an offence under this Act as proof, in the absence of evidence to the contrary, that the dog is a pit bull for the purposes of this Act, without proof of the signature and without proof that the signatory is a member of the College.

The applicant, in this case, brought an application challenging this section and claiming that it violates section 11(d) of the Charter of Rights.

In the Cochrane case:

The application judge concluded that sections 39 and 46 of the Provincial Offences Act give trial judges a discretion to allow for cross-examination of the veterinarian who signed the certificate. She held, at paragraph 215 of her reasons, that “it should be assumed that the discretion of the court to give leave to a defendant to cross-examine will be exercised in a way that is consistent with Charter rights and, in particular, with the right to trial fairness and the due administration of justice.”

In paragraph 56:

This ruling, from which no appeal was taken, is a full answer to the appellant’s first ground of attack on section 19. A trial judge’s discretion to permit cross-examination of the veterinarian is an important safeguard of an accused’s section 11 (d) rights. There is no reason to suppose that leave to cross-examine, if sought, will be improperly or lightly denied.

This Court understands this ruling to mean that there is no section 11 (d) violation when you need leave to seek cross-examination of an officer, provided a trial Justice has discretion to permit cross-examination of someone who is not required to attend trial in the first place, in circumstances where it is necessary to make full answer and defence. This Court accepts and agrees with such reasoning.

Also, if there is no section 11 (d) violation when the defendant may go to jail, as in the Cochrane decision, then there certainly can be no violation when the defendant may get demerit points, as in this matter.

Accordingly, this Court finds that in the circumstances of this case, there has been no breach of Mr. Hon’s section 7 or 11(d) Charter rights, and the Charter application is dismissed.

The only issue that remains is will this Court compel the officer’s attendance by issuing a summons for the officer to attend trial to be examined pursuant to section 49(4) of the Provincial Offences Act.

In the Yan case, it was decided that the test in section 205.20(3) cannot be met simply by the defence saying they need to cross-examine the officer and asking for summons to issue. The onus is on the defence to show some reasonable and legitimate basis for examining the officer; some valid reason why cross-examination of the officer would be necessary to ensure a fair trial and a full defence.

There must be some indication by way of affidavit or other evidence or in the submissions or undertakings of counsel that there may be a material irregularity in the certified evidence or that there is some proposed defence evidence that could raise a reasonable doubt as to the accuracy of the certified statements.

The onus is on the defence to show a reasonable and legitimate basis for examining the officer. Nothing in the request made by the defence in the Yan case satisfied these requirements.

The Yan case also refers to the Alberta Court of Appeal case of R. v. Davis, 1983 ABCA 15, [1983] AJ No. 1020. This is an Alberta Court of Appeal case. This case is certainly persuasive.

This case deals with the drive over 80 milligrams and impaired driving provisions that refer to the certificate evidence of the qualified breath technician and when it would it be appropriate to compel the breath technician to come to court for the purpose of cross-examination under section 237(4) of the Criminal Code.

Paragraph 6 of that Davis decision:

There must be some basis for the exercise of discretion, and this can be found in the evidence and can be found in the law or can be met by putting forward evidence on a voir dire and, as I say, if there is any slightest suspicion found by these means that the certificate is at all questionable, then the leave certainly should be given.

Paragraph 7:

In its dictionary meaning, the word suspicion can mean opinion based on slight evidence not amounting to proof. It is obviously in this sense that Justice Ohearn was using it since he said it had to be founded in evidence. But it can also mean conjecture or imagination without evidence, and in this sense, it would be an improper basis for exercise of this discretion under 237(4).

Paragraph 8:

In the exercise of this discretion, the trial judge must bear in mind, on the one hand, the considerations of expediency in the prosecution of these social offences which Parliament obviously intended where it enacted provisions for the proof of the Crown’s case by certificate evidence. It would be contrary to that parliamentary intent to require the attendance of the technician on unfounded suspicion merely to enable defence to engage in a broad fishing expedition to which is normally entitled in cross-examination. The trial judge must also bear in mind, on the other hand, the right of the accused to make full answer and defence.

Finally, paragraph 9 in the Davis decision:

Within these limits, leave should not be granted unless there is an indication in the evidence or in the affidavit or in the submissions and undertakings of counsel of a material irregularity in the actual testing procedure followed by the technician in the instance case which, if substantiated, might provide a legal basis for a reasonable doubt as to the accuracy to any evidentiary statement in the certificate. An irregularity which could not in law affect the result of the case would not warrant leave. It should also be shown in support of the application that evidence sought is within the peculiar knowledge of the technician in the case.

This was the paragraph that was, in fact, referred to in the Cochrane case at paragraph 20.

In the case of York (Regional Municipality) v. Iagolnik, [2022] ONCJ 318 at paragraphs 7 and 8:

The agent for the defendant at trial advised the Justice of the Peace that without the officer as a prosecution witness, the defence could not cross-examine as to the circumstances of the speed measurement. The Justice of the Peace ruled that the trial should proceed.

When considering sections 48.1(5) and 49(4) of the Provincial Offences Act, Justice Kenkel noted that:

Such an adjournment should not routinely be granted as to do so would defeat the purpose of the section. The Justice of the Peace was right to direct that the trial proceed.

This Court also goes on to suggest that testing of the speed measuring device is not an essential element of the offence of speeding, which is consistent with cases of R. v. Russel, [2008] ONCJ 5880 and R. v. Dore, [2017] ONCJ 343, where it was decided that evidence that the tests were done in accordance with manufacturer’s instructions is not an essential element of a speeding offence and recommended tests do not have the status of statutory requirements.

This Court is also of the view that proof that the posted speed sign was unobstructed is not an essential element of the offence of speeding. In fact, all the essential elements of a speeding offence can be made out on a complete, properly filled out and error-free certificate of offence.

Also, the defendant does not have to comply with the rules as set out in Browne v. Dunn when the prosecutor elects to proceed by way of certificate evidence.

Based on the principles as summarized in the Yan, Davis and Iagolnik case, this Court must now determine whether the charging officer shall be compelled to appear for the trial in this matter by way of summons when applying section 49(4) of the Provincial Offences Act. Specifically, whether the reasons provided by the agent or the defendant meet the requirements of a material irregularity in the certified evidence or that there is some proposed defence evidence that could raise a reasonable doubt as to the accuracy of the certified statement.

Again, the defendant’s representative is asking that the officer attend as there are many omissions in the notes of the officer that lead to such questions as, “What were the results of the tests conducted on the speed measuring device? What tests were performed on it? Did such tests comply with the manufacturer’s recommendations? Who tested the device, and if there were speed limit signs; were they obstructed in any way?”

It is not the possibility that there may be an irregularity in the certificate. It is not enough to submit that the officer might have erred. It is not enough to submit that there may be a material irregularity. There needs to be some evidence that there might be a material irregularity in the certificate of offence.

What is being asked for here by the defendant’s agent is, in essence, “The officer is needed here in order to test whether certain things happened or not, such as did the device pass the test or not and were the signs obstructed or not?”

What is being proposed here is pure speculation. The defence does not know whether the device passed the tests or not. The defence does not know whether the sign or the possibility of a sign was obstructed or not, and therefore, “I need to have the officer here to test such omissions.” This is basically another way of saying, “I need the officer here to have a fair trial.”

This is precisely what the Court in Yan and Davis cautioned against. There is no evidence that the device didn’t pass, and there is no evidence that the sign was obstructed.

An appropriate framework to analyze whether something is an irregularity is whether there is an inconsistency between the certified statements on the certificate of offence and some other evidence; whether that evidence be in the officer’s notes, that of a Crown witness or a defence witness or that of the accused.

The agent could have merely submitted or undertook to the Court that he spoke with his client and they were adamant that they were doing 59 km/h and not 83 km/h or that the speed sign posted was 80 km/h and not 60 or, perhaps, their position might have been that there was no sign, but after reattending the scene shortly thereafter, they noticed the sign was covered by a tree branch or mud.

This Court cannot accept that omissions in the officer’s notes as outlined here constitute a material irregularity in the certificate or that there is an inconsistency between the certificate of offence and some other evidence. If this Court accepts such a proposition, then it would be allowing the defence to conduct a fishing expedition, and that would be completely contrary to the purpose of the certificate evidence provisions and the principles outlined in the relevant case law.

For the above reasons, this court will not summons the charging officer to attend trial in this matter pursuant to section 49(4) of the Provincial Offences Act.

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Ashvini Navendra, certify that this document is a true and accurate transcript of the recording of R. v. Hon, Yoon in the Provincial Offences Court held at 50 High Tech Road, Richmond Hill, Ontario taken from Recording 4961_R4__20230519_085248.dcr, which has been certified in Form 1.

(Date) (Signature of Authorized Person(s))