Kenora (City) v. Romyn, 2016 ONCJ 198

ONTARIO COURT OF JUSTICE DATE: 2016·04·12 COURT FILE No.: Kenora 5521495B CITATION: Kenora (City) v. Romyn , 2016 ONCJ 198 IN THE MATTER OF an appeal under

Section 128 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: THE CITY OF KENORA APPELLANT — AND — KEVIN ROMYN RESPONDENT Before Justice Peter T. Bishop Heard on Monday, March 21, 2016 Reasons for Judgment released on April 12, 2016 Allan Ferrer .................................................................................... counsel for the prosecution The defendant Kevin Romyn on his own behalf BISHOP J.: [ 1 ] This matter comes before me by way of an appeal from a decision from Justice of the Peace Roger McCraw delivered on May 28, 2015. BACKGROUND [ 2 ] Mr.

Kevin Romyn was charged on March 13, 2015 with the offence of speeding 105 kilometers per hour in a 90 kilometer per hour zone, pursuant to

Section 128 of the Highway Traffic Act of Ontario . [ 3 ] The charge was laid pursuant to an offence notice under

Part 1 of the Provincial Offences Act . [ 4 ] The prosecutor requested an amendment to the certificate of offence by way of increasing the speed to 130 kilometers per hour to coincide with the evidence presented at trial. [ 5 ] A conviction was entered by Justice of the Peace McCraw for the offence outlined in the certificate ie. Speeding 105 kilometers per hour in a 90 kilometer per hour zone. The appellant’s position is that the Justice of the Peace did not address the amendment request and is inconsistent with the evidence heard at trial.

ISSUES POSITION OF THE APPELLANT [ 6 ] The prosecutor states that the quantum of the excess over the speed limit relates to the penalty provisions and not whether the respondent was involved in speeding.

[ 7 ] The respondent had been provided with disclosure prior to the trial and verbally told at the commencement of the trial that that the prosecutor would seek to amend the speed limit as identified by the radar, pending the evidence presented at trial. [ 8 ] The prosecutor advised the court at the start of the trial that he would be requesting an amendment to have the amount reflect the evidence that he anticipated would be given at trial. [ 9 ] The prosecutor submits that the amendment was not properly considered by the Justice of the Peace pursuant to

Section 34.1 (4) of the Provincial Offences Act . [ 10 ] The Justice of the Peace did not make any finding as to the speed that the respondent was travelling. [ 11 ] The Justice of the Peace did not indicate in any way that he did not accept the evidence of Officer Moss and the radar unit. [ 12 ] Officer Moss` evidence was not contradicted. [ 13 ] The prosecutor requests that the conviction amended to reflect the evidence at trial; namely 130 kilometers per hour in a 90 kilometer zone, or in the alternative that the conviction be struck and the matter refer back to the Provincial Offences Court for a new trial.

POSITION OF THE REPSONDENT [ 14 ] The request to amend the certificate was considered and denied by the Justice of the Peace. [ 15 ] The Crown witness gave no evidence that the radar unit was tested at the end of his shift as ``required”. [ 16 ] The Justice of the Peace exercised his discretion and imposed a fine consistent with that on the offence notice and the circumstances of the case.

DECISION [ 17 ] The leading case in this matter is in the Regional Municipality of York v Winlow 99 O.R. (3d) (337). [ 18 ] Winlow decided that the actual rate of speeding is not an essential element of the offence of speeding under Section 128 (1) of the Highway Traffic Act . It is a particular relevant to penalty under Section 128 (14) of the Highway Traffic Act. Under

Section 34.1 (2) of the Provincial Offences Act , the court is expressly authorized to amend a charge to conform with the evidence disclosed at trial. The defendant has no vested right to insist on a trial on the charge named on the certificate of offence. The prosecution may request the court to ``amend up`` the certificate. The operative word for the Justice of the Peace in this

section is “may”. [ 19 ] However; before the amendment is granted the court must consider the four requirements of

Section 34.1 (4) of the Provincial Offences Act : 1 the evidence taken on trial; 2 the circumstances of the case; 3 whether the defendant had been mislead or prejudiced in his or her defense by a variance, error or omission; 4 having regard to the merits of the case, can the proposed amendment be made without any injustice being done. [ 20 ] Ideally the defendant should receive notice of the proposed amendment before the day of the trial.

If, for practicable reasons, notice of the amendment can only be done on the day of trial, then it would be far preferable that the notice be given before the trial begins that the defendant be given a reasonable opportunity to consider how to respond. [ 21 ] In the circumstances of this case, which are somewhat unusual I dismiss the Crown`s appeal for the following reasons: 1 The prosecutor was somewhat casual with respect to no formal notice to amend up and no settlement discussions were done prior to the day of trial. 2 The respondent was not aware of Winlow and was given no opportunity to request an adjournment or fully digest the consequences of that case and has therefore has been put at a disadvantage. 3 The transcript provided to this Court does not disclose that the respondent was given an opportunity to make submissions attempted to interrupt the Justice of the Peace and was cut-off when the Justice said ``hold on, you had your say`` and proceeded with the decision. 4 The Justice of the Peace reviewed the evidence that he had before him from Officer Moss. 5 The Justice of the Peace was aware of and reviewed the ratio of R v Winlow, and specifically stated that he was not prepared to

accommodate the Crown on setting the speed at a higher rate because of the evidence of the Officer who indicated that the dynamics of the situation at the time was in a passing zone and reflected on the reality of individuals passing transport trucks on a hill. 6 The Justice of the Peace considered the dynamics (circumstances) and concluded that the respondent was guilty of speeding and was not prepared to amend the certificate upwards.

He imposed the fine as stated on the offence notice. 7 The officer must be given a great deal of credit for reducing the stated speed on the offence notice and exercised his discretion as did the Justice of the Peace. 8 There is no specific requirement that the Justice of the Peace must accede to the Crown`s request and have the rate amended upwards to comply with the evidence. The operative word is “may”.

I conclude that the Justice of the Peace considered all of the circumstances in paragraph 34.1 (4) as he is required to do. 9 The Justice of the Peace stated that if there had been a different dynamic, like an individual deliberately speeding with no extenuating circumstances and attempting to get around a transport truck on a hill passing lane on the Trans-Canada Highway inferred that he may have amended the certificate as requested by the prosecutor. [ 22 ] The Justice of the Peace exercised his discretion as did Officer Moss and this Court should not substitute its decision for that of the Justice of the Peace. [ 23 ] In all of the circumstances the appeal will be dismissed.

Released: April 12, 2016 Signed: “Justice Peter T. Bishop”