Toronto (City) v. Al-Bawi, 2022 ONCJ 411

ONTARIO COURT OF JUSTICE CITATION: Toronto (City) v. Al-Bawi , 2022 ONCJ 411 DATE: 2022 09 07 BETWEEN: TORONTO (CITY) (Respondent) — AND — JAAFAR AL-BAWI (Appellant) Before Justice V. Rondinelli Heard on August 11, 2022 Reasons for Judgment released on September 7, 2022 V. Manoukian ……………………………….……………………...…For the Appellant P. McMahon……………………………………………………………For the Respondent Rondinelli J.: Introduction [ 1 ] The Appellant received a speeding ticket on September 18, 2020 for travelling 60 km/hr in a posted 50 km/hr zone.

He paid the fine indicated on the ticket on October 7, 2020. [ 2 ] On February 7, 2021, the Appellant received another speeding ticket for travelling 70 km/hr in a posted 50 km/hr zone. He paid the fine indicated on the ticket on February 24, 2021. [ 3 ] Pursuant to s. 8(2) of the Provincial Offences Act (“POA”), pre-payment of the fines constitutes a plea of guilty by the Appellant. Now, the Appellant comes to this court claiming that had he known of the consequences of paying the tickets would have on his demerit points and insurance coverage, he would instead have opted for a trial.

He asks this court to set aside his de facto guilty pleas, and order new trials. [ 4 ] 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.” [ 5 ] 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. [ 6 ] 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. [ 7 ] 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.” [ 8 ] Again, 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 fines, they were not valid guilty pleas because he was not aware of the consequences of his pleas: i.e., the demerit points and changes to his insurance coverage resulting from these convictions. The Test To Vacate A Guilty Plea [ 9 ] It has long been held that a valid plea must be voluntary, unequivocal and informed: See R. v. Wong , 2018 SCC 25 at para. 3 . [ 10 ] In this case, the Appellant argues that his pleas were not informed.

For a plea to be informed in a criminal law context, an accused must be aware of the criminal consequences of the plea as well as the legally relevant collateral consequences.

As Justice Moldaver held in Wong at para. 4 , “A legally relevant collateral consequence is one which bears on sufficiently serious legal interests of the accused.” Justice Moldaver further added at para. 9 that “a legally relevant collateral consequence will typically be state-imposed, flow from conviction or sentence, and impact serious interests of the accused.” Analysis [ 11 ] The question in this case and the many similar cases that come before this court, is how informed must a defendant be before entering into a valid guilty plea to a

Part I matter? [ 12 ] Recently, in R. v. Girn , 2019 ONCA 202 , Justice Watt considered the extent of knowledge required regarding potential immigration consequences to render a guilty plea informed. He stated at para. 75: The authorities teach that where immigration consequences may ensue from a guilty plea, conviction and sentence, an accused must be aware of those consequences for his or her plea to be informed. Those immigration consequences include removal from Canada -- in a word, deportation.

But the authorities have resisted imposition of a fixed quantum or standard of information necessary to characterize the plea as “informed”. Instead, the jurisprudence counsels a case-by-case analysis consistent with both the subjective nature of guilty pleas and the level of understanding of the consequences of entry of guilty pleas generally. No trial. Conviction. Sentence. [ 13 ] With the multitude of

Part I offences and their attendant consequences, it makes similar sense to embark on a case-by-case analysis when considering the validity of a guilty plea in a

Part I matter. However, there is at least some guidance provided by the Ontario Court of Appeal in London (City) v. Young , 2008 ONCA 429 . In dealing with a variety of

Part I offences as part of the appeal, the Court made clear at para. 33 that, at the very least, “the set fine is part of the information the defendant requires in order to decide whether to default and thereby forgo the right to be presumed innocent and to have a hearing.” [ 14 ] The Appellant in this case claims that his guilty pleas were uninformed since he was not aware of the effect that the convictions would have on his demerit points and insurance coverage. [ 15 ] This is a very common argument advanced in this court.

In my view, 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. Demerit Points [ 16 ] Turning first to demerit points. Driving is a highly regulated area. Some of the requirements and responsibilities conferred upon drivers in Ontario are set out in

Part IV of the Highway Traffic Act (“HTA”). Importantly, s. 31 of the HTA reminds drivers that driving is a privilege and not a right: Driving a privilege 31. 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. [ 17 ] Information about demerit points is provided to every prospective driving applicant in the Official Ministry of Transportation Driver’s Handbook . [1] [ 18 ] Furthermore, a simple search of “demerit points” on the Government of Ontario website [2] returns the following straightforward information: Penalties for demerit points The consequences for gaining demerit points depend on how many you have added to your driving record. As a driver with a full licence, if you have:

6 to 8 points: You will be sent a warning letter. 9 to 14 points: You will be sent a second warning letter encouraging you to improve your driving behaviour. 15+ points: Your licence will be suspended for 30 days. [ 19 ] It is important to note that a driver will be sent a first warning letter after accumulating 6 to 8 points. The Appellant has provided no information as to how many demerit points he has on his record. If it is less than 6, then this conviction would not be triggering any licence suspension.

If it is more than 6, then he would have been made aware that any further accumulation would jeopardize his licence. [ 20 ] In any event, I agree with Justice Latimer’s analysis in Halton (Regional Municipality) v. Saunders , 2022 ONCJ 1 , that information about demerit points is not generally necessary in order for an individual to be “fully aware of the consequences” before paying a fine. Like Justice Latimer, I too agree with and adopt the reasoning of the British Columbia Court of Appeal in Miller v.

British Columbia , 2010 BCCA 39 , where the Court states at para. 17: The addition of penalty points to a driving record is an administrative function in which the court takes no part. Points do not affect any right a driver has but, rather, may affect what is a driver’s privilege to hold a licence. Depending on the number of points that a driver may have previously accrued, or may subsequently have added to his driving record, the points added as a result of an undisputed ticket being issued may have no immediate effect and be of no consequence to the exercise of the privilege.

What may, in a broad sense, be said to be “consequences” of a deemed guilty plea will differ from one driver to another depending on the driver’s record. These cannot, in my view, be consequences contemplated by what was said in Richard . They are not matters of which any given recipient of a ticket must be informed before his or her s. 11(

d) Charter rights can be waived under s. 16(1) of the Offence Act . Insurance Consequences [ 21 ] As mentioned, an individual must be aware of “the legally relevant collateral consequences” for a plea to be informed. I agree with Justice Kenkel where he held in Cheung v.

York (Regional Municipality) , 2022 ONCJ 95 at para. 12 that a change in the terms of the driver’s insurance contract is not a “legally relevant” collateral consequence of a guilty plea as contemplated in Wong . [ 22 ] Under s. 2 of the Compulsory Automobile Insurance Act , a driver of a motor vehicle is required to be “insured under a contract of automobile insurance.” A number of factors can affect insurance premiums: for example, age; car make and model; annual mileage; and driving history.

As Justice Kenkel observed at para. 13 of Cheung : [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. [ 23 ] In my view, the same could be said in this case. Any insurance consequences that the Appellant may endure are not state- imposed, and fall outside the realm of information that an individual should be made aware of before paying a fine in lieu of having a trial.

In The Alternative – The Wong Analysis [ 24 ] Should I be wrong in finding that demerit points and insurance consequences are not legally relevant collateral consequences , I will undertake the two-prong analysis prescribed in Wong . That is, in seeking to withdraw his guilty pleas, the Appellant must first show that he was unaware of legally relevant collateral consequences. This prong is to be assessed objectively as to whether the undisclosed information was sufficiently serious to render a defendant misinformed: See Wong , paras. 9 and 34 . [ 25 ] The second prong requires proof of prejudice.

That is, whether the Appellant being uninformed impacted the plea. This prong is assessed subjectively by considering whether the Appellant would have taken a meaningfully different course of action in pleading: See Wong , paras. 25 and 35 . [ 26 ] On the evidence before me, I find that both appeals fail on the first prong of Wong . With respect to the first ticket issued September 18, 2020, the Appellant was alleged to be speeding 10 km/hr over the posted speed limit. This means that there would be no demerit points associated with paying the fine in lieu of having a trial.

It is difficult to see how a reasonable and properly informed person, put in the same situation, would have opted for the time and expense of a trial if he or she had specific knowledge of the lack of demerit points associated with the infraction. [ 27 ] Now, while it is true that the second ticket issued February 7, 2021 attracted 3 demerit points since it involved a speed of 20 km/hr over the posted limit, it is important to note that the insurance company did not raise the issue of cancelling coverage until over a year later in March 2022.

The record is void as to what else happened during this great gap of time. No information about the Appellant’s driving record. No information about the Appellant’s insurance policy as it stood at the time of the offence. No information about the Appellant’s insurance policy as it stood at the time of the appeal. [ 28 ] On the face of the record, it cannot be said that a reasonable person, put in the same situation of the Appellant on February 7, 2021 would not have paid the fine even if they knew that would trigger 3 demerit points on their driving record, especially in light of the

fact that the earlier ticket did not attract any demerit points and there was no ominous correspondence from their insurance company or from the Ministry of Transportation contemporaneous to the incident. The “Ends of Justice” Test [ 29 ] The Toronto Region sees many appeals advanced on similar grounds as these appeals. As Justice Kenkel observed in Kim v.

York (Regional Municipality) , 2022 ONCJ 96 at para. 5 , “A guilty plea and payment of a fine is a final act which should not easily be set aside, particularly in the very busy provincial offence courts.” [ 30 ] This is not to say that appeals claiming that an appellant was not sufficiently informed before paying a fine can never succeed. The term “ends of justice” is broad enough to provide a remedy in the appropriate case.

For example, an individual may have paid the fine immediately with the full understanding of its associated demerit points, but within days of paying the fine was offered a new career advancing job that required a vehicle and a clean driving record. The driver now faces a long-term impact, that was unbeknownst to them when they paid the fine.

In such circumstances, a court may be inclined to exercise its power under s. 138(1) and direct a new trial so that the defendant is put back in the position they were prior to paying the ticket. [ 31 ] 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. [ 32 ] 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. [ 33 ] Finally, if the guilty plea occurred in court, a transcript of that proceeding will be required for the appeal hearing. [ 34 ] In my view, the proposed framework would reduce court strain while maintaining fairness and satisfying the ends of justice. Conclusion [ 35 ] For all the above reasons, both appeals are dismissed.

Released: September 7, 2022 Signed: Justice V. Rondinelli [1] See: https://www.ontario.ca/document/official-mto-drivers-handbook/keeping-your-drivers-licence#section-4 [2] See: https://www.ontario.ca/page/understanding-demerit-points