ONTARIO COURT OF JUSTICE
DATE: 2024·06·13
COURT FILE No.: 2860 999 201756-00
IN THE MATTER OF an appeal under subsection 116 of the Provincial Offences Act, R.S.O. 1990, c. P. 33, as amended;
BETWEEN:
HIS MAJESTY THE KING Respondent
— AND —
PAUL FERREIRA Appellant
Before: Justice R. J. Wood
Heard on: April 10th, 2024
Reasons for Judgment provided orally on: June 13th, 2024
Counsel: J. Pollard & S. MacDonald ......................................................... counsel for the Respondent V. Hawkes ............................................................... paralegal for the Appellant Paul Ferreira
On appeal from the conviction by Justice of the Peace M. Hewitt on July 18th, 2022 and dismissal of 11(b) application on February 24th, 2023.
Wood J.:
[1] By way of introduction, Paul Ferreira was found guilty by Justice of the Peace Hewitt of three counts of careless driving causing bodily harm on July 18th, 2022.
[2] The charges were laid after a motor vehicle collision occurred between two passenger vehicles at the traffic light-controlled intersection of Brock Road and Concession Road 9 in Pickering on June 15th, 2020. I understand that Concession Road 9 becomes Central Street when you drive West of Brock Road, which runs North/South. The speed limit for Brock Road is 80 km/hr and the speed limits for Central Street and Concession Road 9 are 50 and 60 km/hour respectively. A silver Kia Rio driven by Ritsa Trakos was northbound on Brock Road. The Kia had entered the intersection at 79 km/h. A dark coloured Honda Civic, allegedly driven by the Appellant, was eastbound on Central Street and entered the intersection at 58 km/h. There is no dispute that the front portion of the Kia Rio collided with the front passenger side of the Honda Civic and the three occupants of the Rio suffered bodily harm. The consequences for all four people involved in the collision that day, including the Appellant, have been significant and, for some, life altering.
[3] As the parties have identified, there were three distinct stages of the proceedings: a pre-trial motion regarding a roadside statement attributed to the Appellant; the trial itself; and an application seeking a stay of proceedings as a result of an infringement of the Appellant’s right to trial in a reasonable amount of time as required by section 11(b) of the Charter of Rights and Freedoms.
[4] All three stages of the proceeding are subject to this appeal. Specifically, the Appellant appeals against the ruling that permitted the Crown to lead the roadside statement attributed to the appellant. Secondly, Mr. Ferreira appeals his conviction, arguing that the learned Justice of the Peace applied an incorrect standard in the finding of guilt and failed to provide sufficient reasons for doing so. And, finally, the Appellant appeals Her Worship’s ruling dismissing the 11(b) motion for unreasonable delay. As part of that ground, the Appellant seeks leave to tender new evidence, namely POA court dockets from Whitby, which indicate, contrary to the finding on the motion, that POA courts were largely closed during the relevant timeframe.
[5] Appeals under Part III of the Provincial Offences Act are governed by section 116 and following of that Act. Section 116 provides that the defendant may appeal from a conviction. Section 120 outlines the powers that this court holds on such matters, specifically, the court may only allow an appeal if it is of the opinion that any one or more of the three grounds have been met:
(i) the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground, there was a miscarriage of justice.
[6] The grounds are identical to those as noted in the appeal provisions contained in section 686 of the Criminal Code, so caselaw in that context is of assistance in my consideration of this matter.
[7] Put simply, my understanding of my role in this review is not to reconsider the evidence and argument and substitute my own decision for that of the learned Justice of the Peace. To put it in more colloquial terms, this is not ‘another kick at the can’ permitted to re-litigate the same legal issues and evidence as heard in the original proceedings. My role is limited to re-examining the record while considering counsel’s submissions in determining if the evidence could support the decision of the learned Justice of the Peace. The question I must ask myself is whether the Justice of the Peace could reasonably have reached the conclusion she did on the evidence heard at trial (See R. v. Burns, [1994] SCJ No. 30). I owe a significant amount of deference to the findings of fact made by the Justice of the Peace. To overcome that hurdle, the appellant must show that the findings were made owing to some legal error or a finding not established on the evidence due to a misapprehension of the evidence or that falls outside the range of reasonableness (See R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 and R. v. Le, 2018 ONCA 56).
[8] Keeping that standard in mind, I intend to consider each issue raised by the Appellant in turn.
Pre-Trial Motion Re Voluntariness / Section 7
[9] It is clear from the record that the Crown chose to elicit a brief statement that Mr. Ferreira gave to the initial police officer on scene. Defence challenged both the voluntariness of that statement and argues that it was a compelled statement and, as such, was inadmissible as evidence on the issue of identifying the driver of the Honda Civic.
[10] After hearing evidence from the initial police officer on scene, Police Constable Adrienne McDonald, and the Appellant, the learned Justice of the Peace made a finding that the brief discussion between the officer and Mr. Ferreira did not amount to a “report” as is required for the first step of R. v. White, [1999] 2 S.C.R. 417. Her Worship also found the statement was provided voluntarily by Mr. Ferreira beyond a reasonable doubt. In my view, upon a review of the record from January 27th, 2022, both of those findings were available. The Appellant presented with a somewhat contradictory explanation for saying what he said. On the one hand, he suggested that, due to a prior motor vehicle collision where he was incorrectly found to be at fault initially, he wanted to be the first to provide his side of the story about this collision. On the other hand, he suggested that he was not willingly providing that information and was only responding to the police officer’s questions because he was under the impression that if you refuse to answer questions posed by a police officer you will be charged with an offence.
[11] In any event, although not required, I agree with Her Worship Hewitt’s finding that the utterance in question was not a “report” as envisioned by the Highway Traffic Act. The conversation was very brief, Mr. Ferreira was standing near his Honda Civic, the officer had just arrived on scene and was trying to assess the area for people with injuries. The officer asked, “were you driving this vehicle?” And Mr. Ferreira responded, “Yes” along with a head nod and provided his drivers’ licence. In making her finding, Her Worship referred to the cases of R. v. Goudreault, [2004] O.J. No. 4307 and R. v. Parol, [2016] O.J. No. 1449, two cases with similar factual circumstances where the statement made by Parol was found to be admissible and, although the statement was excluded by the trial judge in Goudreault, the appeal court expressed “serious reservations” about that ruling, but was not required to fully consider the issue for the purposes of that appeal. As such, I do not find that the learned Justice of the Peace made an error in law.
[12] I would add that, in my view, the roadside utterances of Mr. Ferreira were ultimately unnecessary in the final determination of the matter regarding the issue of identity. Her Worship did not refer to any utterances made by the Appellant in her trial judgment. Despite comments made by the Crown and agent for the appellant at the outset of the motion indicating that the motion result may alter or even put an end to the prosecution, by the end of trial evidence, it was clear that the issue of identity was not a significant one. Yes, I agree that it is an essential element of the offence and must be proven beyond a reasonable doubt, but there was an abundance of evidence for the Crown to rely on to establish that element. Specifically, the accepted evidence of eye-witnesses Melissa Hall and Maria Trakos who adequately identified the Appellant as the driver. This was also consistent with Mr. Ferreira being the only person standing next to the Honda civic upon the arrival of police. In the result, even if the trial Justice and I are wrong in the assessment on this issue, I would not be inclined to grant the appeal considering section 120(1)(b)(iii), that no substantial wrong or miscarriage of justice has occurred.
[13] In sum, the decision of Justice of the Peace Hewitt on this issue was not unreasonable or unsupported by the evidence. Furthermore, based on the evidence that Her Worship accepted, the finding that the utterance made by Mr. Ferreira did not amount to a statement as envisioned by R. v. White was not an error in law.
The Trial Judgment
[14] The appellant raises sufficiency of reasons and contends that the learned Justice of the Peace applied a strict liability standard as opposed to proof beyond a reasonable doubt when making a finding of guilt.
[15] In furtherance of their argument, the appellant raises several areas of concern with Her Worship’s findings. Specifically, as noted in paragraph 14 of their Factum, findings about the functionality of the traffic light, relying on witness evidence despite some acknowledgment of memory lapses and inconsistencies, the possibility of a quickly changing traffic light, comments about the appellant’s speed, describing the appellant’s conduct as negligent, a failure to take into account all possible scenarios that could have explained the appellant’s actions short of careless driving, an over-reliance on officer Limb’s evidence, the remote switch factor for the traffic light, and a failure to consider the possibility that the appellant would have expected the other vehicle to stop owing to the fact that the appellant may have had a green light.
[16] In my view, these various areas were canvassed during both or either of the motion for a directed verdict of acquittal which the applicant brought on May 26th, 2022 or final submissions on July 18th, 2022. The learned Justice of the Peace was alive to these issues. The trial justice is “presumed to know the law with which they work day in and day out” (R. v. Burns, [1994] 1 S.C.R. 656). I also take into account that the POA court in Whitby and throughout the province, tend to be very high-volume courts; they are extremely busy. It is very routine for matters to be heard and judgments provided the same day, often without rising from the bench. It would be all but impossible to keep up with matters if that were not the case.
[17] In considering sufficiency of reasons, I am mindful of the test as set out in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paragraph 46, “Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that count intervene.”
[18] The reasons provided by Justice of the Peace Hewitt demonstrate that Her Worship had a firm understanding of the issues at play – including inconsistencies with some witness accounts – considered them, made factual findings that were based on the evidence that she accepted on a reasoned basis, and then applied the law regarding careless driving to them, specifically the seminal cases of R. v. Shergill, 2016 ONCJ 163 and R. v. Beauchamp, [1953] O.R. 422 and referred to the standard of proof beyond a reasonable doubt. The analysis was sound; it was based on the evidence and I certainly could not find that there was an error in law or that an incorrect or reduced standard of culpability was applied to find Mr. Ferreira guilty. In fact, upon review of the evidentiary record as a whole, this was a strong Crown case for careless driving and the evidence was straightforward.
The 11(b) Ruling and the Fresh Evidence Application
[19] The Appellant argues that the learned Justice of the Peace erred in refusing to find that Mr. Ferreira’s 11(b) right to trial within a reasonable time was violated. Central to the argument is a 12-month deduction that Her Worship applied to the timeline as a result of Covid-19, specifically October 23rd 2020 to October 14th, 2021.
[20] To assist in establishing an error in a finding of fact and to bolster their argument regarding the reasonableness of the delay, the Appellant requests the admission of new evidence for the appeal. That evidence is comprised of POA dockets from September and November of 2020, which are included as an appendix to the Applicant’s Factum seeking leave. This is done to disprove the finding that the POA courts were “closed” for that year long span. It would seem that the Respondent does not take the position that the POA courts were closed to all activity during that timeframe, merely that new trials were not being held until the fall of 2021. That assertion is consistent with the Covid 19 Notice, dated September 1st, 2021, which was relied upon during the initial application. Upon review, it would appear that the dockets do not show trial matters being heard, simply matters being resolved with guilty pleas, withdrawals or being adjourned.
[21] As both parties agree, the test for the admission of fresh evidence is provided by the case of R. v. Palmer, [1980] 1 S.C.R. 759. Although there are four aspects to the test, in my view, the final consideration, “It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result” is dispositive of the issue. Even had these dockets been made available to Justice of the Peace Hewitt, it would not have changed the end result. There is no doubt in my mind that the learned Justice of the Peace was well aware of the lay of the land and the comings and goings in POA court during the relevant timeframe. Her reasons also demonstrate that she was aware of the relevant law and mathematical calculation to apply. Her Worship was in a much better position than I am to assess the reason for the delay, how to apportion it, and to determine if the delay was unreasonable. If, however, I am wrong on this issue and the fresh evidence should be admitted, I also conclude that it would not cause me to interfere with the decision dismissing the 11(b) application.
[22] There has been much written about the significance of the Covid-19 pandemic on the court system. It is beyond trite now to call it an unprecedented experience in modern times. Courts have recognized that the way we conduct business had to be adjusted and courtrooms modified to ensure safety. This was all done without having the benefit of a playbook already in place and, consequently, took some time. The POA courts, like their criminal counterparts, administratively adjourned matters and then attempted to prioritize them in a way that was hoped to be fair for everyone. Unfortunately, many people, just like the Appellant, may have wished for their matters to proceed sooner. Mr. Ferreira is to be given full credit for the efforts that he made on his own behalf. However, it was not as easy as asking to jump the queue. That simply was not possible. It has also been recognized that the ‘exceptional circumstance’ discrete event should not merely apply to the period of time when trials could not be conducted, but the monumental backlog that accumulated during that time must also be taken into consideration. As far as case numbers, the impact of the pandemic has yet to be fully overcome.
[23] I agree that there must be an established link between the delay occasioned owing to the pandemic and the specific case at hand, one cannot simply apply a broad year long reprieve for the prosecution. That said, in reviewing the record, the decision of Her Worship was grounded in evidence and the ultimate finding was a reasonable one. I would not be inclined to interfere with the finding, especially given the learned Justice of the Peace’s particular knowledge of the circumstances in POA court during the relevant timeframe as Her Worship explained in her reasons. Clearly, and rightfully so, cases that were more expeditious were given priority as well as matters that had already begun. Although it may have been frustrating for Mr. Ferreira, especially given the efforts he was making on his own behalf, it is not for me to look back with hindsight as 20/20 vision and suggest that the Crown prioritized their matters incorrectly or that Mr. Ferreira’s matter should have been put to the front of the line. It is unclear what the definition of a “serious matter” was in order to categorize it as a priority. That said, it could also very well be that, given the matter proceeded to a pre-trial motion in January of 2022, the matter was appropriately prioritized. As found by Her Worship in her reasons when it was noted that the Appellant was “one of the first” to have a judicial pre-trial only a month after the court had opened on a broader level.
[24] Even applying the most favourable math to the Appellant’s argument leaves a remaining delay that would be well below the presumptive Jordan ceiling of 18 months. The fact that the matter was completed, given the issues argued and hearings held, in 21 months, illustrates the kind of high priority the charges were given. There is nothing on the record, in my view, that would lead to a calculation where the remaining delay would exceed the presumptive ceiling. For example, even if only 6 months were attributed to the discrete event of the pandemic – and I wouldn’t be inclined to do that – the delay would still only be 15 months. Furthermore, I agree with the learned Justice of the Peace that the Appellant has not demonstrated that the matter took markedly longer than it otherwise should have such that a stay would be warranted.
Conclusion
[25] Upon a review of the record, I cannot find that the verdict was unreasonable or unsupported by the evidence, that there was an error in the application of law, or that there was any miscarriage of justice.
[26] The appeal is dismissed.
Released: June 13th, 2024 Signed: “Justice R.J. Wood”