



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Morillo, 2018 ONCA 582

DATE: 20180625

DOCKET: M48734

Paciocco J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen ex. rel.
The Regional Municipality of Durham

Responding Party

and

Lindsey Morillo

Moving Party

Lindsey Morillo, acting in person

Mark Wiffen,
amicus curiae

Arend J. Wakeford, for the responding party

Heard: June 13, 2018

On appeal from the decision of the Provincial Offences Appeal
    Court dated December 20, 2017 by Justice John N. Olver of the Ontario Court of
    Justice, dismissing the appeal from the conviction entered on August 24, 2017
    by Justice of the Peace Maxine Coopersmith of the Ontario Court of Justice.

ENDORSEMENT

OVERVIEW

[1]

On August 19, 2015, Lindsey Morillo was charged with the offence of
    speeding on Highway 2 in the Region of Durham. A regional Traffic Services Unit
    officer claims to have clocked Mr. Morillos vehicle with his radar system,
    travelling at 107 kilometres per hour in what proved to be a 70 kilometre per
    hour zone. Mr. Morillo denies that he was speeding. He claims that he was
    travelling within the speed limit in the flow of traffic. He does not directly
    challenge the functioning of the radar system. In his view, however, it is not
    possible that he was travelling at 107 kilometres an hour because he was
    slowing to make a turn when the officer purportedly measured his speed.

[2]

The officer and Mr. Morillo testified about their conflicting accounts
    of what happened at two separate trials. Mr. Morillo was convicted at both of
    those trials. His first conviction was overturned because the presiding Justice
    of the Peace erred in applying the rule in
R. v. W.(D.)
, [1991] 1
    S.C.R. 742. An appeal from his second conviction to a Provincial Offences Appeal
    Court Judge was unsuccessful. Mr. Morillo is now moving under
Provincial
    Offences Act
, R.S.O. 1990, c. P. 33 (
POA
), s. 139(1), for leave
    to appeal that decision to this court.

[3]

Mr. Morillo has been self-represented in all proceedings, including this
    motion for leave to appeal.

[4]

For the reasons that follow, I grant his motion for leave to appeal.

THE LEGAL TEST FOR LEAVE

[5]

The relevant parts of s. 139 of the
POA
state:

Appeal to Court of Appeal

139(1) An appeal lies from the judgment of the
    Ontario Court of Justice in an appeal under section 135 to the Court of Appeal,
    with leave of a judge of the Court of Appeal, on special grounds, upon any
    question of law alone.

Grounds for leave

(2) No leave to appeal shall be granted under
    subsection (1) unless the judge of the Court of Appeal considers that in the
    particular circumstances of the case it is essential in the public interest or
    for the due administration of justice that leave be granted.

[Emphasis in original.]

[6]

The test for securing leave to appeal to the Court of Appeal under
POA
,
    s. 139(1) is very high:
R. v. El-Kasir
, 2017 ONCA 531, at para. 21,
    citing
Vaughan (City) v. Antorisa Investments Ltd.
, 2012 ONCA 586 1
    M.P.L.R. (5th) 240, at para. 8. See also
R. v. Ul-Rashid
, 2013 ONCA
    782, at para. 17; and
R. v. Farah
, 2013 ONCA 362, at para. 16.

[7]

The text of s. 139(1) and the relevant jurisprudence of this court make
    clear that leave to appeal can be granted only on questions of law alone, and
    only where there are special grounds:
El-Kasir
, at para. 21;
Ul-Rashid
,
    at para. 17; and
Farah
, at para. 16.

[8]

What constitutes special grounds is informed by the direction in s.
    139(2) that leave to appeal shall not be granted under s. 139(1) unless the
    judge considers that in the particular circumstances of the case it is
    essential in the public interest or for the due administration of justice that
    leave be granted:
Ul-Rashid
, at para. 17.

[9]

In order to meet this standard, Trotter J.A. held in
Ontario
    (Ministry of Environment and Climate Change) v. Sunrise Propane Energy Group
    Inc.
, 2018 ONCA 461, at paras. 15-16 that, in respect of leave under s.
    131 of the
POA
, the legal issue raised should be significant and have
    some broad importance. These same considerations equally apply to leave motions
    under s. 139 of the
POA
. Generally speaking, the implications of the
    legal issue should go beyond the case at hand. The strength of the proposed
    grounds of appeal is also a material consideration if there is a real risk that
    there may have been a miscarriage of justice or a denial of procedural fairness:

Ul-Rashid
, at paras. 25-27.

ANALYSIS

A.

Is Mr. Morillo AppeaLing Errors of Law?

[10]

In
    my view, appellate courts ought not to take a rigid or technical approach when identifying
    the grounds of appeal that a self-represented litigant is raising when seeking
    leave to appeal under
POA
, s. 139.

[11]

The
    Canadian Judicial Councils

Statement of Principles on Self-Represented
    Litigants and Accused Persons
has been endorsed by the Supreme Court
    of Canada in
Pintea v. Johns
, 2017 SCC 23, [2017] 1 S.C.R. 470, at
    para. 4, and by this court in
Moore v. Apollo Health & Beauty Care
,
    2017 ONCA 383, at paras. 42-45, and in
R. v. Tossounian
, 2017 ONCA
    618, 354 C.C.C. (3d) 365, at paras. 36-39. According to these principles,
    self-represented persons are expected to familiarize themselves with relevant
    legal practices and to prepare their own case. However, self-represented
    persons should not be denied relief on the basis of minor or easily rectified
    deficiencies in their case. Judges are to facilitate, to the extent possible,
    access to justice for self-represented persons.

[12]

Appellate
    judges should therefore attempt to place the issues raised by a
    self-represented litigant in their proper legal context. In my view, when this
    is done it is evident that Mr. Morillo is appealing errors of law, and that
    there is a foundation in the record that those errors may have occurred.

B.

The
W.(D.)
Error

[13]

In
    the draft notice of appeal filed in this matter, Mr. Morillo raised issues
    about the failure of the Provincial Offences Appeal Court Judge to recognize
    that the Justice of the Peace mishandled the credibility evaluation. Although
    Mr. Morillo has not explicitly pled a
W.(D.)
error, the responding
    party recognizes that this ground of appeal raises issues relating to the
    proper application of the
W.(D.)
rule. The responding party contends,
    in support of its position, that the Justice of the Peace properly applied the
W.(D.)
test. In my view, Mr. Morillos appeal therefore embraces the claim that the
    Provincial Offences Appeal Court Judge erred by failing to review whether the Justice
    of the Peaces application of the rule in
W.(D.)
was legally sound.

[14]

The
    rule in
W.(D.)
is intended to ensure that reasonable doubt is properly
    applied where the credibility or reliability of evidence inconsistent with
    guilt is in issue:
R. v. D.(B.)
, 2011 ONCA 51, 266 C.C.C. (3d) 197, at
    paras. 102ff; and
R. v. Phillips
, [2001] O.J. No. 83 (C.A.), 139
    O.A.C. 282, leave to appeal refused [2001] S.C.C.A. No. 32 and [2002] S.C.C.A.
    No. 609. The rule applies in this case because Mr. Morillo offered evidence at
    his trial inconsistent with his guilt, and the credibility and reliability of
    that evidence  and the competing evidence of the officer  was called into
    question.

[15]

The
    Justice of the Peace recognized that the
W.(D.)
rule applied and cited
    it. In my view, however, there is strong reason to believe that she then
    misapplied it. She appears to have engaged in the very kind of credibility
    contest reasoning that the rule was intended to prevent, by deciding which competing
    version of events she preferred.

[16]

After
    reciting the differences between the competing versions of events, the Justice
    of the Peace said:

So I have to look at, whose evidence can I rely on? Well, Ill
    tell you, the one who has used the device, the one who compared their visual
    observations, the one who is trained to use that device, made sure it was
    functioning properly. Thats the evidence I am going to rely on, not your
    evidence when you saw a sign that said the speed limit was 70, that you had
    vehicles in front and behind you and you were keeping up with traffic. That is
    not as reliable as the officers evidence.

For that reason, I am going to accept the evidence of the
    officer and I find you guilty of speeding 107 kilometres per hour in a 70
    kilometre zone contrary to section 128 of the
Highway Traffic Act
.

[17]

The
    genesis of the Justice of the Peaces apparent error may possibly be traced to a
    misconception of how credibility contests are to be adjudicated:

Now, Im also very well aware not to turn this into a
    credibility contest between you and an officer and simply choose one side
    without properly and carefully giving the other side fair consideration of the
    evidence in the context of all of the evidence.

[18]

In
    my view, this is not accurate. Credibility contests are not properly resolved
    by choosing one side after carefully giving the other side fair consideration
    in the context of all of the evidence. They are resolved by ensuring that, even
    if the evidence inconsistent with guilt is not believed or does not raise a
    reasonable doubt, no conviction will occur unless the evidence that is accepted
    proves the guilt of the accused beyond a reasonable doubt. The decision of the Justice
    of the Peace fails to make that determination. It appears that she found Mr.
    Morillo guilty because she judged that his evidence was not as reliable as the
    officers evidence. This would be a legal error, indeed the very error made in
W.(D.)
itself.

[19]

In
    my view, there is also strong reason to believe that the Provincial Offences
    Appeal Court Judge erred by not recognizing that the Justice of the Peace may
    have committed such a
W.(D.)
error. Instead, he supported the Justice
    of the Peaces analysis, and concluded, [t]heres no error that I can see that
    the Justice made that would allow me to grant your appeal and give you a third
    opportunity at trial.

C.

Preventing Impeachment on Prior Inconsistent Testimony

[20]

When
    Mr. Morillo sought to confront the officer with inconsistencies between his
    testimony at the retrial and his testimony at the first trial, the Justice of
    the Peace refused to allow it. She apparently laboured under the misconception that
    since retrials are to be determined on their own evidence, no use should be
    made of testimony taken at the prior trial, even to demonstrate inconsistency.
    If this is so, she erred in law. It is trite law that prior inconsistent
    testimony from a first trial can be used to impeach a witness at a retrial.

[21]

This
    apparent error showed itself early in Mr. Morillos cross-examination of the
    officer. Mr. Morillo was attempting to cross-examine the officer about an
    inconsistency that he believed existed between the officers testimony and
    evidence the officer gave at the first trial, about the age of the car Mr.
    Morillo was driving. His question was interrupted by the Justice of the Peace:

The Court:   Okay. Im not going to go to a previous hearing

Mr. Morillo:  Okay

The Court:   ... okay? This is a brand

Mr. Morillo:  This is just .

The Court:    new trial, sir.

[22]

Almost
    immediately after making this ruling, the Justice of the Peace invited Mr.
    Morillo to cross-examine the officer on anything he said differently before. Apparently,
    however, this invitation did not extend to the officers testimony at the
    previous trial because, when Mr. Morillo attempted to impeach the officers
    testimony about where Mr. Morillos vehicle was when the officer first saw it,
    the Justice of the Peace again interjected: Okay. Are we re-trying the old trial?
    Is that what were doing? This prompted the public prosecutor to add, [e]xactly,
    if we could stick to the new evidence, please.

[23]

I
    recognize that Mr. Morillo was able to get many of the perceived contradictions
    that troubled him before the Justice of the Peace, including through his own
    testimony. But the Justice of the Peaces apparent legal error in restricting
    Mr. Morillo from using inconsistencies between the officers testimony and his
    previous evidence may well have mattered. For example, at the first trial, the
    officer testified that Mr. Morillos vehicle was the only one in the westbound
    lanes when he first observed it. This testimony appears to be in significant
    contradiction to the officers testimony at the retrial that he could tell that
    Mr. Morillos vehicle was speeding because he was pulling away from other
    westbound traffic, most notably a van operated by a woman whose facial
    expression the officer recalled.

[24]

In
    my view, Mr. Morillo raised this error as a ground of appeal. In the draft notice
    of appeal he questions the Justice of the Peaces admonition that he not re-try
    the old case. Mr. Morillo can fairly be taken to be asserting that the Justice
    of the Peace erred in law by undermining his ability to confront the officer
    with his prior inconsistent statements.

[25]

This
    issue was also before the Provincial Offences Appeal Court Judge, but he arguably
    failed to recognize the error. The Provincial Offences Appeal Court Judge found
    that Mr. Morillos challenge to the officers evidence was deficient because Mr.
    Morilllo did not impeach the officer with transcripts from the first trial. In
    making that determination, the Provincial Offences Appeal Court Judge did not
    note that the Justice of the Peace considered testimony from the first trial to
    be unavailable for impeachment purposes. It is arguable that even if Mr.
    Morillo had transcripts, unless the Justice of the Peace changed her ruling,
    Mr. Morillo would not have been permitted to use them.

[26]

The
    Provincial Offences Appeal Court Judges ruling also appears to endorse the
    public prosecutors protest at trial that if Mr. Morillo wanted to challenge
    the officer with prior testimony, he needed to have transcripts. In my view, this
    proposition is wrong in law. A party need not have a transcript to cross-examine
    a witness about their prior inconsistent testimony. Pursuant to s. 20 of the
Evidence
    Act
, R.S.O. 1990, c. E.23, [a] witness may be cross-examined as to
    previous statements that have been [] reduced to writing [] without the
    writing being shown to the witness. If the witness agrees they made the prior
    inconsistent statement, the contradiction is established. The risk in not
    having a transcript is that if the witness denies making a prior inconsistent
    statement when asked, that denial cannot be contradicted and hence the contradiction
    cannot be proved. Put otherwise, Mr. Morillo would have been well advised to
    have had the transcript of the first trial with him for use in cross-examination,
    but the absence of a transcript does not prevent him from cross-examining the
    officer about the contradictions he believes to exist.

D.

Failing to Provide Adequate Assistance to a Self-Represented Accused

[27]

The
    Provincial Offences Appeal Court Judge did a commendable job in responding to
    Mr. Morillos needs as a self-represented litigant. He worked to understand Mr.
    Morillos bases for appeal. He listened carefully and patiently to Mr. Morillo,
    and was careful to explain to Mr. Morillo why his appeal had failed. The
    Provincial Offences Appeal Court Judge may nonetheless have erred in law in
    endorsing the fairness of the manner in which the trial was conducted, by not
    paying due regard to the fact that Mr. Morillo was unrepresented at trial.

[28]

Specifically,
    issue can be taken with the following exchanges between the Provincial Offences
    Appeal Court Judge and Mr. Morillo:

So the Court, the Justice of the Peace on that occasion [] was
    applying the evidence as she heard it from the officer to the facts as you
    testified to. And I think she acknowledged to some extent that there was some
    differences in the officers evidence from trial one to trial two that you were
    trying to point out. The problem was you didnt have a transcript to properly
    cross-examine the officer and these are one of the short comings of running a
    case by yourself. I mean youre perfectly entitled to represent yourself and
    run a case. The problem is where youre not sure of the evidentiary procedures
    and how to properly cross-examine an officer to test their credibility,
    particularly where youre trying to impeach their credibility because of
    something they may have testified to differently and I understand exactly what
    youre trying to say that the officers evidence on some issues changed from
    one date to the next. The issue might well be whether those are material issues
    or not material issues and had you properly cross-examined the officer with a transcript
    okay, you may well have been able to establish some credibility misgivings that
    mightve allowed [the] Justice of the Peace to favour your argument a little
    better, or at least to have a reasonable doubt as to the accuracy of the speed
    the officer was testifying to.

[29]

The
    Provincial Offences Appeal Court Judge then went on to say:

Well let me just explain to you because as I say youve had two
    kicks at the can here and youre basically asking me to grant your appeal so
    you can have a third kick at the can and the issue is how many opportunities do
    we give you at the tax payers expense to figure out how to properly present
    your case right. And this is why I say you wouldve been well-advised the first
    time around to have representation because you wouldnt be here now. One way or
    the other it wouldve been determined and it wouldve been definitive. But
    basically your grounds of appeal are that you just werent able to get your
    points across in your mind.

[30]

In
    my view, there are arguably several problems with these comments, including the
    suggestion, repeated elsewhere in the Provincial Offences Appeal Court Judges
    reasons, that the fact that this was Mr. Morillos second appeal was relevant
    to whether his appeal should be granted. Of course, it was not.

[31]

The
    difficulty of immediate concern is with the Provincial Offences Appeal Court Judges
    comments explaining to Mr. Morillo that his lack of success can be attributed,
    in part, to his lack of familiarity with procedures and the proper manner of
    presenting his case. These comments may fail to allow for the obligation the Justice
    of the Peace had to assist Mr. Morillo, as an unrepresented litigant, in
    achieving a functional understanding of proper procedures and the proper manner
    of presenting a case. In my view, a finding that Mr. Morillo demonstrated his
    incompetence with procedures and the manner of presenting arguably called for the
    Provincial Offences Appeal Court Judge to consider whether the Justice of the
    Peace did enough to assist Mr. Morillo in achieving the base level of understanding
    required.

[32]

The
    first statement of principle in the
Statement of Principles on
    Self-Represented Litigants and Accused Persons
says:

Judges, the courts and other participants in the justice system
    have a responsibility to promote opportunities for all persons to understand
    and meaningfully present their case, regardless of their representation.

[33]

The
    principle on Promoting Equal Justice empowers the presiding judge to inquire
    whether [the parties] understand the process and the procedure, provide
    information about the law and evidentiary requirements, and modify the
    traditional order of taking evidence.

[34]

Long
    before the
Statement of Principles on Self-Represented Litigants and
    Accused Persons
was adopted in 2006, this court said in
R. v. McGibbon
(1988), 45 C.C.C. (3d) 334 (Ont. C.A.), at p. 347:

Consistent with the duty to ensure a fair trial, the trial
    judge is required within reason to provide assistance to the unrepresented
    accused, to aid him in the proper conduct of his defence, and to guide him
    throughout the trial in such a way that his defence is brought out with its
    full force and effect.

[35]

It
    appears that, when evaluating Mr. Morillos challenge to the fairness of his
    trial, the Provincial Offences Appeal Court Judge failed to consider whether
    the Justice of the Peace respected these principles. In my view, Mr. Morillo
    raised this issue in his draft notice of appeal by challenging the propriety of
    the Provincial Offences Appeal Court Judges reliance on the shortcomings flowing
    from running a case without counsel, in dismissing his appeal. This ground of
    appeal, therefore, raises an issue of law that finds realistic support in the
    application record.

E.

Special Grounds

[36]

In
    my view, there are special grounds for granting leave to appeal the alleged
    errors of law that I have identified.

[37]

Those
    special grounds do not relate to the unsettled state of the law. The legal
    rules that gird Mr. Morillos grounds of appeal are entirely settled and are not
    in need of determination by this court. The special grounds that I recognize
    arise, ironically, from the fact that these errors occurred in a provincial
    offences court, specifically, in traffic court.

[38]

Traffic
    courts deal with a high volume of offences. This creates practical pressures to
    be efficient and economical. Given the low level offences that are prosecuted
    in these courts, these practical pressures can imperil the proper balance
    between efficiency and due process. In submissions before me, for example, the
    responding party raised concerns about the resources that have already been
    expended on Mr. Morillos prosecution on a simple speeding ticket. The same
    preoccupation arguably shows itself in the comments of the Provincial Offences
    Appeal Court Judge about Mr. Morillo wanting a third kick at the can. I am concerned
    that the resources pressures I describe, coupled with the low level offences
    prosecuted, can devalue the importance of the procedural and substantive
    protections that those charged, even with traffic offences, are entitled to.

[39]

I
    would not begin to suggest that the fact that a
W.(D.)
error occurred
    in Mr. Morillos first trial, and that the same error arguably occurred in his
    second trial, confirm a systemic problem. I do know, however, that the
W.(D.)
rule is central to the proper conduct of many prosecutions, and it is not
    without its complexity. This court has yet to affirm the importance of the rule
    in
W.(D.)
,

in traffic court prosecutions, or to provide direct guidance
    to Justices of the Peace on its proper application. This case presents a strong
    record on which to do so, because this ground of appeal is strong. I am
    satisfied that it is essential in the public interest and for the due
    administration of justice that leave be granted to accomplish this.

[40]

Traffic
    court also sees a significant number of self-represented individuals. As the
    responding party agreed in oral submissions, this appeal raises issues about
    the appropriate balance between the Justice of the Peaces obligation to
    provide guidance and direction to self-represented litigants, and the demands
    of trial efficiency in busy traffic courts where the stakes for the accused
    tend not to be high. I am satisfied that it is essential in the public interest
    and for the due administration of justice that leave be granted to provide this
    guidance, should the presiding panel consider it appropriate to do so.

[41]

I
    would not conclude that the Justice of the Peaces apparent error in
    restricting Mr. Morillos ability to cross-examine the officer about his prior
    testimony presents special considerations in isolation. However, since leave is
    warranted on the other issues I have identified, and the treatment of this
    issue may enable this court to give guidance on the importance of compliance
    with basic rules of evidence in the conduct of traffic offences, I would grant
    leave to appeal this issue as well.

CONCLUSION

[42]

I
    therefore grant Mr. Morillo leave to appeal the Provincial Offences Appeal
    Court decision of December 20, 2017 pursuant to
POA
, s. 139(1) on
    three issues, namely:

·

Did the Provincial Offences Appeal Court Judge err in law in
    failing to find that the Justice of the Peace erred in law by misapplying the
    rule in
R. v. W.(D.)
?

·

Did the Provincial Offences Appeal Court Judge err in law in
    failing to find that the Justice of the Peace erred in law by making an
    erroneous ruling relating to Mr. Morillos entitlement to attempt to impeach
    the traffic enforcement officer with his testimony from the first trial?

·

Did the Provincial Offences Appeal Court Judge err in law in
    determining that Mr. Morillo had a fair trial, without considering whether the Justice
    of the Peace gave appropriate and sufficient direction and guidance to Mr.
    Morillo as an unrepresented accused?

David M.
    Paciocco J.A.


