R. v. Wei, 2017 ONCJ 878

ONTARIO COURT OF JUSTICE CITATION: R. v. Wei , 2017 ONCJ 878 DATE: 2017 12 22 COURT FILE No.: Central East – Newmarket 4911-999-00-9316512Z-00 IN THE MATTER OF an appeal under Subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — YUYANG WEI Appellant Before Justice A.A.

Ghosh Heard on July 27 and December 5, 2017 Reasons for Judgment released on December 22, 2017 Volga Pankou............................................................................ counsel for the prosecution Payam Javadi................................... licenced paralegal for the defendant Yuyang Wei On appeal from a conviction by Justice of the Peace A. Malik on November 14, 2016. GHOSH J.: Introduction [ 1 ] Yuyang Wei appeals his conviction for “disobey stop sign”, contrary to

section 136 of the Highway Traffic Act (HTA) . He appeals on the following grounds: (

i) That he was improperly denied an adjournment application. (ii) That his agent was not afforded a meaningful opportunity to review disclosure prior to the commencement of trial. (iii) That the court erred in convicting him by way of s. 54 as opposed to s. 9.1 of the Provincial Offences Act (POA) . (iv) That there was insufficient evidence of identification led at the ex parte trial.

Summary of the Proceedings [ 2 ] The defendant was charged on August 3 rd , 2015 with the offence of disobey stop sign, contrary to s.136(1) of The Highway

Traffic Act. He elected to have a trial. On November 23 rd , 2015, Mr. Wei was served with a “Notice of Trial” setting a trial date of April 20 th , 2016 and informing him: “You have a right to receive disclosure of the evidence that may be used at your trial. You must ask the prosecutor for disclosure in order to receive it.” [ 3 ] On April 20 th , 2016, an agent appeared on behalf of the defendant and orally applied to adjourn the trial as Mr. Wei was writing an exam that day.

The adjournment was granted and the matter set for trial on November 14 th , 2016, peremptory to proceed on the defence. [ 4 ] Three weeks before the second trial date, another adjournment application was brought by the defence on October 21 st , 2016. The student on behalf of the recently retained licenced paralegal submitted that their office was unavailable for the trial date, specifying that the office “can’t do Fridays”. The written application was referenced. [ 5 ] In denying the adjournment application, the justice of the peace discussed the procedural history of the matter.

He focused on the previously granted defence application to adjourn and observed that another adjournment would visit almost a year of additional delay on the proceedings. The court weighed the right to representation of choice against the imperative of a timely trial. The application was denied and the matter was remanded to the scheduled trial date of November 14 th , 2016. [ 6 ] On the trial date the application to adjourn was renewed. Another student for the retained paralegal attended, advising of a disclosure request sent on November 7 th .

This concern was added to the paralegal’s unavailability as the grounds for the adjournment. [ 7 ] The justice of the peace denied the application. The court observed that the request for disclosure was not brought in a timely fashion. He agreed to hold down the trial to permit the review of disclosure. [ 8 ] After the morning recess, apparently at the request of the defence, the matter was readdressed. The student again asked for an adjournment.

She had received disclosure but there was no opportunity to discuss it with the client. [ 9 ] The student confirmed that she did not have instructions to enter a plea of guilt or to defend the trial. The court again denied her request to adjourn the trial. The prosecutor offered to hold the matter down until after the lunch break. [ 10 ] The student asked to hold the matter down for two minutes. She did not return.

When the matter was later readdressed, the prosecutor advised the court that she had spoken with the retained paralegal over the break and had confirmed that the student was only instructed to request an adjournment and could not defend the trial. [ 11 ] The court paged for the defendant and no one responded. The defendant was arraigned in his absence, the prosecution led evidence and a conviction was registered. Analysis A.

Ground #1: Did the court err in denying the adjournment application? [ 12 ] The appellant applied to adjourn the trial, both on the date of the filed application and on the trial date, primarily due to the unavailability of retained representation. The decision to grant or deny an adjournment is a discretionary exercise. Where this discretion is exercised judicially and fails to result in a miscarriage of justice, the decision should not be interfered with on review [1] . [ 13 ] The right to representation of choice is not absolute.

This is particularly resonant for HTA litigation in the general Toronto area where available counsel and paralegals are legion. Given the previously granted defence application to adjourn, it was reasonable for the court to expect that any representation retained by the appellant was available on the second trial date. The appellant demonstrated little or no diligence in this regard. [ 14 ] In denying the application to adjourn, the learned justice considered the previously granted defence adjournment application. The trial was endorsed peremptory to proceed.

It was appropriate to deny the application in the circumstances, and appellate deference applies. This ground fails. B. Ground #2: Did the court err by failing to accommodate meaningful review of disclosure before trial? [ 15 ] It is settled law that the defendant in a provincial offences matter has the right to receive disclosure upon request prior to the commencement of trial [2] . The breadth of a court’s duty to accommodate the review of disclosure before a POA trial warrants discussion. [ 16 ] The right to make full answer and defence is codified in section 46(2) of the POA .

This right includes a reasonable opportunity to review requested disclosure before trial [3] . The reasonableness of the afforded opportunity will vary according to the nature and potential consequences of the proceedings [4] . [ 17 ] The appellant was prosecuted for disobeying a stop sign, commenced by means of certificate under

Part I of the POA . The disclosure involved the notes of an officer and a video recording.

Part I procedure is simplified [5] and the maximum penalty is a $1000 fine [6] .The set fine for “disobey stop sign” is $85 [7] . [ 18 ] In this context, it was appropriate for the justice of the peace to hold the trial down briefly to permit the review of disclosure

before trial. This practice is not uncommon to

Part I litigation [8] and is reasonable in light of the simplified procedure contemplated by s. 2 of the POA . This ground fails. C. Ground #3: Did the court err by convicting the appellant in his absence by way of s. 54 as opposed to s. 9.1 of the POA ? [ 19 ] The appellant submits that the court erred in convicting him by means of an ex parte trial contemplated by s. 54 of the POA . It is submitted that the court should have rather entered a conviction pursuant to s. 9.1(1) in

Part I, which would have preserved the appellant’s right to pursue the simplified route of a reopening [9] . [ 20 ] The right to reopen in

Part I is a streamlined procedure permitting an administrative striking of a conviction entered in the defendant’s absence. Firstly, the applicant must demonstrate by way of affidavit that the defendant either failed to receive notice or, through no fault of his own, was unable to appear at trial. A review of the court record supports that neither circumstance could reasonably apply to the appellant. [ 21 ] Secondly, it must be shown in this case that a conviction was entered in the applicant’s absence by way of

section 9.1. Not only did this not occur, I find that this provision was inapplicable in the circumstances. [ 22 ]

Section 9.1 of the POA provides:

(1) Failure to appear at trial – A defendant is deemed to not wish to dispute the charge where the defendant has been issued a notice of the time and place of trial and fails to appear at the time and place appointed for the trial.

(2) Examination by justice – If subsection (1) applies,

section 54 does not apply, and a justice shall examine the certificate of offence and shall without a hearing enter a conviction in the defendant’s absence and impose the set fine for the offence if the certificate is complete and regular on its face. [ 23 ]

Section 54 of The POA provides:

(1) Conviction in the absence of the defendant – Where a defendant does not appear at the time and place appointed for a hearing and it is proved by the prosecutor, having been given a reasonable opportunity to do so, that a summons was served, a notice of trial was given under

Part I or II, an undertaking to appear was given or a recognizance to appear was entered into, as the case may be, or where the defendant does not appear upon the resumption of a hearing that has been adjourned, the court may, (

a) Proceed to hear and determine the proceedings in the absence of the defendant; or (

b) Adjourn the hearing and, if it thinks fit, issue a summons to appear or issue a warrant in the prescribed form for the arrest of the defendant. [ 24 ] Both provisions permit a conviction in the absence of the defendant.

Section 9.1 permits a conviction for a

Part I offence to be entered upon documentary review confirming service of notice of trial.

Section 54 applies more broadly and requires the hearing of evidence by means of an ex parte trial. Neither provision aligns with the facts regarding the appellant, although I find that

section 54 was properly resorted to. [ 25 ] Justice Schrek’s analysis in R. v. Sahadeo, supra, is dispositive of this ground. There are several parallels to be drawn between the facts of that case and the present appeal. In both cases an agent attended the trial date, was denied an adjournment, and then withdrew before the court embarked on an ex parte trial pursuant to

section 54. [ 26 ] These circumstances, as was found in Sahadeo , cannot establish that the appellant “failed to appear… for trial” as required by s. 9.1(1). The appellant appeared by way of an agent with limited instructions to procure an adjournment. [ 27 ]

Section 9.1 further deems the defendant to “not wish to dispute the charge” by failing to appear. The court record regarding the appellant supports the contrary. It is more likely that Mr. Wei had wished to dispute the charge. This is evidenced by the combined effect of the following: (

i) Retention of representation and a request for disclosure; (ii) Multiple requests for the adjournment of trial; and (iii) An agent attending trial without instructions to enter a plea of any sort. [ 28 ] While s. 9.1 does not apply to the appellant’s circumstances, s. 54 may be equally inapplicable [10] , although not for the reasons submitted by the appellant. Application of

section 54 is not restricted to

Part III prosecutions commenced by the laying of information.

Section 54 applies to all proceedings commenced under the POA [11] , and it explicitly includes certificate proceedings commenced under

Part I by way of notice of trial. This fits the appellant. [ 29 ] Both s. 9.1 and s. 54, however, only permit a conviction in absentia where the defendant does not “appear” for trial [12] . The POA does not seem to contemplate a scenario where the defendant “appears” for trial by way of an agent who later withdraws after being denied an adjournment. This unfortunate practice is more prevalent in POA courts than it should be [13] and merits comment. [ 30 ] The defence cannot by its conduct thwart the court’s direction that a POA trial will proceed as scheduled. The appellant was

placed on notice by no less than three justices of the peace that the trial would proceed in November. When the adjournment application was denied in October, the defence was expected to enter its plea on the trial date. [ 31 ] In sending an agent without instructions to enter a guilty plea or to defend the trial, the defence by its conduct endeavoured to subvert the explicit direction of the court. Once the adjournment was denied, the defence ought to have been fixed with the expectation of arraignment.

If there was any intention to defend the charge, the defence should have attended the second trial date prepared to do so. [ 32 ] The issue remains whether or not the learned justice erred in conducting an ex parte trial pursuant to s. 54. I am persuaded that the court employed the correct procedure. Where there is an apparent gap in the legislated procedure, resort may be made to

section 146 of the Courts of Justice Act: “Jurisdiction conferred on a court, a judge or a justice of the peace shall, in the absence of express provision for procedures for its exercise in any Act, regulation or rule, be exercised in any manner consistent with the due administration of justice.” [ 33 ]

Section 54 affords the absent defendant an appropriate measure of procedural fairness. The prosecution is required to prove the defendant was notified or compelled to attend trial. Evidence must be led to satisfy the standard of proof. The procedure employed was fair and consistent with the due administration of justice. This ground fails. D. Ground #4: Was sufficient evidence of identification led at trial? [ 34 ] The evidence required to establish identification made by the police of a driver charged from a traffic stop need not be particularly involved.

There is a continuous “chain of events” from the traffic stop through to the trial, generally ensuring that identity is made out [14] . This explains why otherwise unreliable in-court identification is routinely accepted evidence from officers purporting to identify strangers stopped at roadside. [ 35 ] At the ex parte trial of the appellant, the investigating officer testified that he reviewed the appellant’s driver’s licence and was satisfied that the photograph matched the driver. The licence displayed a date of birth and the name of the appellant.

This evidence was sufficient to establish the identity of the driver. It was not necessary in the circumstances for the officer to recite the registered address and the date of birth in order to establish identification. This ground fails. [ 36 ] The appeal is denied. Released: December 22, 2017 Signed: Justice A.A. Ghosh