Toronto (City) v. Clarino, 2022 ONCJ 524

ONTARIO COURT OF JUSTICE CITATION: Toronto (City) v. Clarino , 2022 ONCJ 524 DATE: 2022 11 16 BETWEEN: TORONTO (CITY) (Respondent) — AND — CHRISTOPHER CLARINO (Appellant) Before Justice V. Rondinelli Heard on October 18, 2022 Reasons for Judgment released on November 16, 2022 S. O’Connor…………………………………….……………………...…For the Appellant J. DeFalco…...…………………………………………………………For the Respondent Rondinelli J.: Introduction [ 1 ] The Appellant received a ticket for using a hand-held wireless communication device while driving contrary to s. 78.1(1) of the Highway Traffic Act (“HTA”) on May 31, 2022.

He paid the fine indicated on the ticket on June 12, 2022. [ 2 ] Pursuant to s. 8(2) of the Provincial Offences Act (“POA”), pre-payment of the fine constitutes a plea of guilty by the Appellant. Now, the Appellant comes to this court claiming that had he known that paying the ticket would have led to a 3-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. [ 3 ] As I noted in Toronto (City) v. Al-Bawi , 2022 ONCJ 411 [1] at paras. 4-7: As a

Part I matter, this appeal comes to this court by way of s. 135(1) of the POA. As such, pursuant to s. 138(1) of the POA, this court has the power to “affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial.” Because the Appellant paid the tickets 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” to direct a new trial.

If the Appellant had opted under s. 7 of the POA to appear in person in court to enter a plea of guilty and make submissions as to sentence, or opted to have a trial and subsequently pleaded guilty in open court, he would have benefitted from s. 45 of the POA, which provides: Taking of plea 45

(1) After being informed of the substance of the information or certificate, the defendant shall be asked whether the defendant pleads guilty or not guilty of the offence charged in it. Conviction on plea of guilty

(2) Where the defendant pleads guilty, the court may accept the plea and convict the defendant. Conditions of accepting plea

(3) A court may accept a plea of guilty only if it is satisfied that the defendant, (

a) is making the plea voluntarily; (

b) understands that the plea is an admission of the essential elements of the offence; (

c) understands the nature and consequences of the plea; and

(

d) understands that the court is not bound by any agreement made between the defendant and the prosecutor. Note, however, that s. 45(4) states that “the failure of a court to fully inquire into whether the conditions set out in subsection (3) are met does not affect the validity of the plea. [ 4 ] The Appellant in this case chose the procedural route in paying the fine without the benefit of a trial. He now claims that although he in effect pleaded guilty and paid the fine, it was not a valid guilty plea because he was not aware of the consequences of his plea: i.e., the suspension of his driver’s licence.

The Test To Vacate A Guilty Plea [ 5 ] A valid guilty plea is voluntary, unequivocal and informed: See R. v. Wong , 2018 SCC 25 , at para. 3 . [ 6 ] In this case, the Appellant argues that his plea was not informed. For a plea to be informed in a criminal law context, an accused must be aware of the criminal conse​quences of the plea as well as the legally relevant collateral consequences: See Wong , at para. 4 .

As Justice Moldaver held in Wong , at para. 9 , “[A] legally relevant collateral consequence will typically be state-imposed, flow from conviction or sentence, and impact serious interests of the accused.” Analysis [ 7 ] The question in this case – and the many similar cases that come before this court – is: Does a defendant have to be aware of a driver’s licence suspension before entering into a valid guilty plea to s. 78.1(1) of the HTA? [ 8 ] At the outset of the analysis, it is important to note that the driver’s licence suspension at issue in this case is not a “legally relevant collateral consequence” as contemplated in Wong .

In Wong , the Court held that immigration consequences stemming from a guilty plea to a criminal offence constituted a legally relevant collateral consequence. Similarly in R. v.

Quick , 2016 ONCA 95 , the Court of Appeal held that driver’s licence suspensions under the HTA are part of the collateral consequences of a plea an accused must understand for their guilty plea to a criminal offence to be valid. [2] [ 9 ] In this case, however, the Appellant’s driver’s licence suspension is a direct consequence for the offence of driving while using a hand-held wireless communication device contrary to s. 78.1(1) of the HTA. The penalty provision of the

section provides: Penalty

(6.1) Every person who contravenes this

section is guilty of an offence and on conviction is liable, (

a) for a first offence, to a fine of not less than $500 and not more than $1,000; (

b) for a first subsequent offence, to a fine of not less than $500 and not more than $2,000; and (

c) for a second subsequent or an additional subsequent offence, to a fine of not less than $500 and not more than $3,000. Same

(6.2) If a person is convicted of an offence under this section, the Registrar shall suspend his or her driver’s licence, (

a) for a first offence, for three days; (

b) for a first subsequent offence, for seven days; and (

c) for a second subsequent or an additional subsequent offence, for 30 days . [ 10 ] As such, the Wong analysis as it relates to “legally relevant collateral conse​quence” does not apply . In my view, 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. [ 11 ] In this case, the Appellant states in his affidavit: I did not know that a consequence of paying the fine would be a licence suspension. I did not understand the seriousness of the ticket; I only thought it meant a fine. I simply did not want any issues with my work or the company insurance. [ 12 ] The Appellant does not elaborate on how the driver’s licence suspension would impact his employment or any other undue hardship it posed. [ 13 ] In both R. v. Girn , 2019 ONCA 202 and R. v.

Coffey , 2017 BCCA 359 , the appellate courts dismissed claims that the appellants’ guilty pleas in those cases were uninformed because they were not aware of the collateral immigration consequences.

Both appellate courts found that there was an element of wilful blindness in the appellants’ approach and to vitiate their guilty pleas in such circumstances would be condoning their wilful blindness of the precise immigration consequences: See Coffey , at para. 48 ; Girn , at para. 79 . [ 14 ] I would not go as far as finding that the Appellant’s inaction in this case rises to the level of wilful blindness in that he became aware of the need for some inquiry but declined to make the inquiry because he did not wish to know the truth.

However, as a licenced driver in a highly regulated arena, it should be expected that the Appellant will take meaningful steps to ascertain the direct consequences of pre-paying a fine for an offence under s. 78.1(1) of the HTA.

[ 15 ] The direct penalty of driving while using a hand-held wireless communication device is readily available. As mentioned above, the HTA itself provides the penalties associated with the offence. 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 the penalties associated with this offence.

Even a simple Google search of “handheld device ticket in Ontario” or “distracted driving” on the Government of Ontario website [3] would return the following straightforward information: Drivers with A to G licences If you have an A, B, C, D, E, F, G and/or M licence, you’ll face bigger penalties when convicted of distracted driving: First conviction: - a fine of $615, if settled out of court (includes a victim surcharge and the court fee) - a fine of up to $1,000 if a summons is received or if you fight the ticket in court and lose - three demerit points - 3-day suspension Second conviction: - a fine of $615, if settled out of court (includes a victim surcharge and the court fee) - a fine of up to $2,000 if a summons is received or if you fight the ticket in court and lose - six demerit points - 7-day suspension Third and any further conviction(s): - a fine of $615, if settled out of court (includes a victim surcharge and the court fee) - a fine of up to $3,000 if a summons is received or if you fight the ticket in court and lose - six demerit points - 30-day suspension Novice drivers If you hold a G1, G2, M1 or M2 licence, and are convicted of distracted driving, you’ll face the same fines as drivers with A to G licences.

But you won’t receive any demerit points. Instead of demerit points you’ll face longer suspensions: - a 30-day licence suspension for a first conviction - a 90-day licence suspension for a second conviction - cancellation of your licence and removal from the Graduated Licensing System (GLS) for a third conviction - to get your licence back you’d have to redo the GLS program [ 16 ] None of these steps are onerous or expensive. As such, it would be reasonable and fair to expect licenced drivers to take similar steps in order to hold the privilege of driving in this province.

The “Ends of Justice” Test [ 17 ] 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.

[ 18 ] With respect to driver’s licence suspension cases, I would propose the following addition to the affidavit: - What is the particular undue hardship caused to the appellant by the driver’s licence suspension. [ 19 ] 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 [ 20 ] For all the above reasons, the appeal is dismissed. Released: November 16, 2022 Signed: Justice V. Rondinelli [1] In Al-Bawi , I held that demerit points and insurance consequences generally do not fall within the “legally relevant collateral consequences” of which a defendant must be aware to make an informed guilty plea in

Part I matters. [3] See: https://www.ontario.ca/page/understanding-demerit-points