



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Morillo, 2019 ONCA 714

DATE: 20190911

DOCKET: C65558

Watt, Hourigan and Huscroft
    JJ.A.

BETWEEN

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

Respondent

and

Lindsey Morillo

Appellant

Lindsey Morillo, acting in person

Mark Wiffen,
amicus curiae

No one appearing for the respondent

Heard in writing: March 14, 2019

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

REASONS FOR DECISION


[1]

One sunny summer afternoon a few years ago, a
    police officer gave Lindsey Morillo (the appellant) a ticket. The ticket
    alleged the appellant was speeding: 107 kilometres per hour in a 60 kilometres
    per hour zone.

[2]

The appellant was certain he was not speeding.
    And he did not think that the speed limit was 60 kilometres per hour. He
    checked the speed limit signs to confirm his belief.

[3]

Convinced he committed no offence, the appellant
    exercised his right to a trial. He did not hire a lawyer. Or a paralegal. He
    represented himself at trial.

[4]

The trial proceedings concluded unfavourably for
    the appellant. He was convicted in the Provincial Offences Court on an amended
    Certificate of Offence, which alleged the speed limit was 70 kilometres per
    hour, not 60 kilometres per hour as originally charged.

[5]

The appellant appealed to the Provincial
    Offences Appeal Court. Again, he represented himself. This time he succeeded.
    The judge allowed the appeal, set aside the conviction, and ordered a new
    trial.

[6]

At the appellants second trial, he was, once
    again, convicted of speeding for driving his car at 107 kilometres per hour in
    a 70 kilometres per hour zone. And the appellant, once again, appealed this decision
    to the Provincial Offences Appeal Court. But this time the judge dismissed the
    appeal and affirmed his conviction. The appellant remained self-represented
    throughout these proceedings.

[7]

The appellant, still self-represented but
    assisted by
amicus
, sought special leave to appeal to this court under
    s. 139 of the
Provincial Offences Act
, R.S.O. 1990, c. P.33. A judge
    of this court granted special leave to appeal on three specific grounds.

[8]

The respondent conceded that the appeal should
    be allowed and the appellants conviction quashed. So no oral hearing took
    place. These reasons record our disposition of the appeal based on the written
    submissions of the self-represented appellant assisted by
amicus
. The
    respondent filed no written submissions.

The Background

[9]

Appeals under s. 139(1) of the
Provincial
    Offences Act
(
POA
) are appeals from the judgment of the
    Provincial Offences Appeal Court, not a second appeal from the decision of the
    Provincial Offences Court. This courts jurisdiction is limited to alleged
    errors of law in the appeal courts decision. Some background on the evidence
    adduced and procedure followed at trial is necessary to appreciate those
    grounds of appeal.

The Trial Proceedings

[10]

In his testimony at the appellants second
    trial, the officer who issued the offence certificate (the ticketing officer)
    expanded somewhat on how the speed detection device operated to record speeds
    of vehicles travelling in the opposite direction. He also testified about his
    opportunity to view the appellants vehicle and his observations of that
    vehicle and other traffic in its immediate vicinity. In some respects, the
    ticketing officers evidence at the second trial differed from what he had said
    at the appellants first trial.

[11]

The appellant sought to cross-examine the
    ticketing officer on discrepancies in his descriptions of his observations of
    the same events as between the first and second trials. When the appellant
    referred to the officers testimony at the previous hearing, the justice of
    the peace indicated that she was not going to go to a previous hearing and
    pointed out This is a brandnew trial, sir. The justice of the peace added
    so if you want to ask him did you say anything differently on a previous
    occasion? you can use that.

[12]

After the appellant indicated that he had no
    further questions of the ticketing officer, the trial justice added:

I dont want to get into
Browne and Dunn
.
    Is there anything youre going to dispute that you would like the officer to
    have the opportunity to respond to now? Anything further?

[13]

The appellant continued his cross-examination of
    the ticketing officer. At one point, the trial justice, who had made some
    suggestions about how the appellant should phrase his questions, warned:

This is the last time Im going to phrase your
    questions for you because you should be catching on by now.

[14]

The appellant was the only defence witness. He
    explained that he was very cognizant of the changes in speed limits on the
    roads on which he was driving that day. When the ticketing officer gave him the
    paper charging him with driving at 107 kilometres per hour in a 60 kilometres
    per hour zone, the appellant told the officer I wasnt travelling that fast. I
    was doing 70., then explained that the speed limit was 70 kilometres per hour,
    not 60 kilometres per hour.

[15]

During submissions, the appellant contended that
    he had looked at his speedometer when he saw the signs posting the speed limit.
    He saw that he was driving at 70 kilometres per hour. The justice interrupted
    and asked whether he had given evidence to that effect. The appellant said,
    Not in so many words. The justice reminded the appellant Thats new
    evidence. And Im not taking that evidence, sir.

[16]

In her submissions, the prosecutor contended
    that the appellant had not properly cross-examined the ticketing officer
    because he (the appellant) had not used a transcript of the prior proceedings
    to do so.

[17]

The trial justice gave her reasons for
    convicting the appellant immediately after the parties had concluded their
    closing submissions. The reasons include the following passages:

You were given every opportunity during
    cross-examination to give reasons why you believed you were doing 70 kilometres
    per hour. You indicated you didnt have your cruise control on. You never
    indicated during your examination in-chief  in other words, your evidence  or
    your cross-examination that you used a measuring device called the speedometer
    to determine that you were going 70 kilometres per hour.



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. So Im not jumping to any
    premature acceptance of one party over the other, but what I am left with here
    is an offence of speeding 107 kilometres per hour in a 70 kilometres per hour
    zone. The differences between you and the officer is the officer said you were
    doing 107 kilometres per hour, you said you were doing 70 kilometres per hour.



So I have to look at, whose evidence can I
    rely on? Well, Ill tell you, the one who used a 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 Im going to rely on, not your
    evidence where 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.

The Decision of the Appeal Judge

[18]

On the appeal, the appellant pointed out that
    the ticketing officer had given evidence at the second trial inconsistent with
    what he had said about the same events at the first trial. He complained about
    the trial justice interfering with the conduct of the case and insisting on the
    use of transcripts.

[19]

After explaining to the appellant that an appeal
    was not a re-litigation of the trial, the appeal judge pointed out that the
    appellant had encountered two problems at trial:

i.

he did not actually deny that he was speeding;
    and

ii.

he did not have a transcript to properly
    cross-examine the ticketing officer on prior inconsistent statements because he
    (the appellant) was unaware, as a self-represented litigant, of the proper
    procedure to do so.

[20]

Among the exchanges between the appellant and
    the appeal judge as the hearing progressed are these:

THE COURT: 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 taxpayers 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 for appeal are that you
    just werent able to get your points across in your mind.



THE COURT: Heres the problem and this is
    maybe its just your lack of knowledge of courtroom procedure and evidence. And
    this is unfortunate that youre here a second time because of the same reason,
    which is you dont understand enough about the examination process to be able
    to make your points. But its not an open forum during cross-examination for
    you to make submissions to the Court or just make statements in front of the
    witness



THE COURT: The problem comes back to you not
    knowing how to do the trial yourself and I ask myself the question I asked to
    you rhetorically, how often should a Court continue to grant you opportunities
    to retry your case when you dont know the process?



THE COURT: Theres 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.

The Appeal to this Court

[21]

The motion judge granted leave to appeal
    on three issues which he posed as questions:

    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?

Ground #1: The Alleged
W.(D.)
Error

[22]

This ground of appeal alleges the appeal
    judge erred in not giving effect to the appellants claim that the trial
    justice failed properly to apply the
W.(D.)
principles to the evidence adduced at
    trial.

The Background

[23]

The circumstances which engage the
    principles of
W.(D.)
originate in the appellant and the
    ticketing officers accounts of the relevant events.

[24]

The ticketing officer testified the
    appellant was speeding. Using a speed recording device in proper working order,
    the officer registered the appellants speed at 107 kilometres per hour in a 70
    kilometres per hour zone.

[25]

The appellant said that he was not
    speeding; rather, he was driving his vehicle at the posted speed limit.

The Reasons of the Trial Justice

[26]

At trial, the justice of the peace
    referred to the principles laid out in
R. v.
    W.(D.)
, [1991] 1 S.C.R.
    742 and noted she was well aware that she was not to turn this into a
    credibility contest between the appellant and the ticketing officer. She
    concluded:

So I have to look
    at, whose evidence can I rely on? Well, Ill tell you, the one who used a
    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
    Im going to rely on, not your evidence where 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.

The Reasons of the Appeal Judge

[27]

The appeal judge conversed with the
    appellant about the perils of self-representation and the advantages of being
    represented by someone knowledgeable in trial procedure, evidence and the
    proper framing of legal argument. The reasons find no basis upon which a new
    trial could be ordered but make no specific reference to the trial justices
    application of
W.(D.)
.

The Arguments on Appeal

[28]

Amicus
accepts that the trial justice cautioned herself properly on the principles of
W.(D.)
.
    However, despite this caution,
amicus
says, the trial justice erred in their
    application. She failed to consider the critical question of whether the
    prosecutor had proven the appellants guilt beyond a reasonable doubt. Instead,
    the trial justice determined the case simply by deciding which version of
    events she preferred. This approach tended to lessen the standard of proof,
    reducing it to a balance of probabilities rather than proof beyond a reasonable
    doubt as the law requires. And was the very kind of reasoning
W.(D.)
was
    intended to prevent.

[29]

Turning to the decision of the appeal
    judge,
amicus
acknowledges that the self-represented
    appellant did not expressly advance this ground of appeal before the appeal
    judge. On the other hand, the error is patent on the face of the record which
    was before the appeal judge and involves fundamental principles associated with
    the burden and standard of proof. The appeal judge erred by failing to consider
    and give effect to it.

[30]

Apart from conceding that the appeal
    should be allowed, the respondent made no submissions on the existence or
    effect of this alleged error.

The Governing Principles

[31]

The principles of
W.(D.)
need
    not be repeated here. Three brief points will suffice.

[32]

First, failure to use the precise language
    of
W.(D.)
is not fatal, provided the reasons, read
    as a whole, make it clear that the trial judge was not under any
    misapprehension about the location of the burden and the substance of the
    standard of proof applicable in the proceedings:
W.(D.)
, at p.
    758.

[33]

Second, the purpose of
W.(D.)
is to
    ensure that triers of fact, whether judges or juries, understand that the
    verdict must not be grounded in a simple choice between the evidence of the
    Crowns witnesses, on the one hand, and the evidence of the accused, on the
    other. The verdict is determined by whether, based on the whole of the
    evidence, the trier of fact is left with a reasonable doubt about the accuseds
    guilt:
R. v. C.L.Y.
, 2008 SCC 2, [2008] 1 S.C.R. 5, at para.
    8.

[34]

Third, by setting out the entire case as a
    choice between two competing versions of events and stating that the most
    reliable version will be chosen as the true verdict, a trial judge risks
    deciding the ultimate issue on the basis of an inadequate standard of proof 
    balance of probabilities  rather than that required  proof beyond a
    reasonable doubt:
R. v. A.P.
, 2013 ONCA 344, 297 C.C.C. (3d) 560 at
    para. 42. See also,
R. v. Lifchus
, [1997] 3 S.C.R. 320.

The Principles Applied

[35]

We give effect to this ground of appeal.
    We reach this conclusion by considering first whether the trial justice
    misapplied the principles of
W.(D.)
in reaching her conclusion of guilt. And
    then, if satisfied that such an error occurred, by examining whether the appeal
    judge erred in failing to identify and provide a remedy for that error.

[36]

The trial justice recognized the evidence
    adduced conflicted on the single issue at trial  whether the appellant was
    speeding. The appellant gave evidence inconsistent with the ticketing officers
    testimony, which, if believed, to the requisite standard, established the
    appellants guilt. In these circumstances, the trial justice acknowledged and
    repeated the
W.(D.)
principles
.

[37]

Despite her recitation
W.(D.)
, the
    trial justice found the appellant guilty because she found the ticketing
    officers evidence more reliable than the appellants. By choosing sides, she
    based finding of guilt on the very legal error that
W.(D.)
sought
    to eradicate. Moreover, this method of determining guilt sits uncomfortably
    close to proof of guilt on a balance of probabilities, a legally inadequate
    standard of proof. Thus viewed, the case was not resolved on the basis that the
    evidence accepted by the trier of fact meets the standard of proof required.

[38]

The appeal judge failed to recognize and
    identify this fundamental flaw in the conviction recorded at trial. In failing
    to do so, as the respondent concedes, the appeal judge erred.

Ground #2: The Alleged Error in
    Restricting Cross-Examination

[39]

The second ground of appeal has to do with
    rulings made during the self-represented appellants cross-examination of the
    ticketing officer on alleged inconsistencies in his evidence as between the two
    trial proceedings.

[40]

Some brief background is necessary to
    ground the discussion that follows.

The Cross-Examination at Trial

[41]

At trial, the appellant made it clear to
    the presiding justice that he considered the ticketing officers evidence to
    have differed significantly from the evidence he had given about the same
    events or observations at the first trial. The appellant wanted to find out why
    the testimony differed on these issues.

[42]

The appellant did not have a transcript of
    the ticketing officers testimony at the first trial in hand. Some questions
    appear to have been based on the appellants recollection of the officers
    prior testimony, others from the disclosure of the officers notes.

[43]

When the appellant began to ask questions
    about what the ticketing officer said at the first trial, or in disclosure, in
    an apparent effort to demonstrate an inconsistency with the officers evidence
    on the same issue at the second trial, the trial justice intervened:

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.

MR. MORILLO: Okay. Okay.

THE COURT: Okay?

MR. MORILLO: Okay. You mentioned

THE COURT: So if you want to ask him, Did you
    say anything differently on a previous occasion?

MR. MORILLO: I realize it is, Your Worship,
    and thank you for pointing that out

THE COURT: Okay.

MR. MORILLO: but Im using evidence here of 
    of  of disclosure from the last hearing.

THE COURT: Okay, fair enough, you can use
    that.

And later:

THE COURT: Okay. Are we re-trying the old
    trial? Is that what were doing?

[THE PROSECUTOR]: Exactly. If we could stick
    to the new evidence, please.

MR. MORILLO: No. Your Worship, I just  okay.
    Im just supposed to stick to the questions. Okay.

THE COURT: No, no, ask him.

MR. MORILLO: Well, I.

THE COURT: Ask him questions.

MR. MORILLO: Okay.

[44]

In closing submissions, the prosecutor
    contended that the appellant had not followed the proper procedure in
    cross-examining the ticketing officer to expose inconsistencies in his
    testimony. The prosecutor said:

If he wanted to
    contradict anything that the officer had said that was different in todays
    proceedings he could have put that to the officer. Yes, the officer was present
    throughout the last trial. However, the officers not privy to those
    transcripts. If theyre ordered and paid for then he would have them, but the
    officer does not, the defendant would have those and I have  would have a copy
    as well.

The Decision of the Appeal Judge

[45]

On appeal, the appellant tried to show
    several inconsistencies in the testimony of the ticketing officer, occasions on
    which the officer gave different versions of the same events. After pointing
    out to the appellant that You never at any time denied that you were not [
sic
] speeding
    or did you assert that you were travelling at the posted speed limit, the
    appeal judge turned to the appellants cross-examination of the officer:

And I think she
    acknowledged to some extent that there was [
sic
] 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 Justice of the Peace Coopersmith to favour your argument a little
    better, or at least have a reasonable doubt as to the accuracy of the speed the
    officer was testifying to.

The Arguments on Appeal

[46]

In this court,
amicus
submits that the appeal judge erred in failing to hold the trial justice had
    erred in restricting the appellants cross-examination of the ticketing officer
    on the inconsistencies between the officers testimony at the first and second
    trials.

[47]

Amicus
contends
    that the trial justices
rulings sent mixed signals to the self-represented appellant. On the
    one hand, the trial justice pointed out, more than once, that she was not
    concerned with what had happened at the first trial. After all, she said, This
    is a brand new trial. But on the other hand, the trial justice provided the
    appellant with suggestions for how to formulate his questions. According to
amicus
,
    credibility was a live issue at trial. A new trial did not disentitle the
    appellant from cross-examining the ticketing officer on statements inconsistent
    with answers he gave at the first trial on the same issues. Parties are
    entitled to impeach witnesses credibility by showing the witness made a
    statement on a prior occasion  either recorded in disclosure or at a previous
    trial or other proceeding  on the same subject-matter, inconsistent with the
    witness trial testimony. Transcripts of the prior proceeding are not a
    prerequisite to impeachment.

[48]

Transcripts are only essential when the
    witness denies or cannot recall having made the prior statement; the transcript
    establishes that the prior statement was, in fact, made.

[49]

Amicus
says the appeal judge, rather than identifying
    this error and its impact on the fairness or the correctness of the result of
    the proceedings, made the same error. This error is exacerbated by the appeal
    judges consideration of an irrelevant factor  that the appellant had already
    had two kicks at the can.

The Governing Principles

[50]

It is commonplace that an opposing party
    can impeach a witness by showing that, on a prior occasion, the witness made a
    statement inconsistent with his or her testimony about the same subject-matter
    in the current proceedings. That a prosecution witness made the prior statement
    under oath at a prior trial of the same charge does not prohibit its use for
    this purpose. The nature and extent of any inconsistency are important factors
    for the trier of fact to consider in assessing the weight to assign to the
    witness testimony.

[51]

Most often for impeachment, the
    cross-examiner will have a copy of the relevant statement or portions of it in
    hand. This ensures that what was said previously is accurately put to the
    witness. But having the statement in hand is not a prerequisite of the right to
    cross-examine. Sections 20 and 21 of the
Evidence
    Act
, R.S.O. 1990, c.
    E.23 and ss. 10 and 11 of the
Canada
    Evidence Act
, R.S.C.
    1985, c. C-5 are procedural in nature: they assist in proof that a prior
    statement was made but do not provide a right to cross-examine: see,
R. v. Mannion
,
    [1986] 2 S.C.R. 272, at pp. 281-282.

The Principles Applied

[52]

We also give effect to this ground of
    appeal. The trial justice erred in the restrictions she imposed on the
    appellants right to cross-examine the ticketing officer on inconsistencies
    between his present and former testimony about the same subject-matter. And the
    appeal judge erred not only by failing to recognize, the error, but also by
    neglecting to consider it in determining whether to order a new trial, but also
    by repeating it.

[53]

The trial justices principal concern,
    perhaps because of the manner in which the self-represented appellant
    approached the issue in cross-examination, was that somehow this amounted to a
    re-trial of the first trial. This was not so. However inelegant the appellants
    forensic technique (something that could have easily been clarified by brief
    questions inquiring about the purpose of the proposed cross-examination then
    illustrating its execution), what emerges is the appellants effort to
    challenge the ticketing officers credibility based on significant differences
    between his current and former testimony about the same subject-matter. This
    was a perfectly legitimate method of impeachment. The trial justice erred in
    holding otherwise.

[54]

On appeal, the judge neither recognized
    the trial justices intervention as based on an incorrect view of the law, nor
    considered it in assessing the overall trial fairness or correctness of the
    verdict rendered. For his part, the appeal judge erred in holding that the
    cross-examination was improper because the appellant did not have a transcript
    of the prior proceedings in hand when he conducted the cross-examination. While
    professional cross-examiners do so, for reasons already expressed, the right of
    cross-examination exists irrespective of what is in the hand of the
    cross-examiner.

[55]

The appeal judge also appeared to count
    against the appellant his lack of familiarity with how to cross-examine an
    opposing witness and, more generally, how to present his defence. Rather than
    criticizing the self-represented for his forensic inadequacies and invoking
    deficiencies as a basis upon which to deny a remedy, a more helpful approach
    would have been to inquire, explain, and assist, thereby ensuring a fair process
    and a reasoned conclusion.

Ground #3: The Failure to Assist
    Ground

[56]

This ground of appeal, as envisaged by the
    motion judge, furnishes an opportunity to provide guidance to justices of the
    peace who preside in Provincial Offences Court about the nature and extent of
    their obligations to assist self-represented litigants.

[57]

The respondent conceded that the appeal
    should be allowed on substantive grounds and filed no written submissions.
    Thus, this ground was not fully argued. In these circumstances, we do not
    consider it appropriate to take up the suggestion of the motion judge to offer
    guidance on this issue:
R. v. Ul-Rashid
, 2014 ONCA 896, at paras. 8, 9.

CONCLUSION

[58]

The appeal is allowed, the conviction
    quashed, and a new trial ordered. In the circumstances, the prosecutor might
    consider whether the interests of justice are served by subjecting the
    appellant to a third trial on a speeding ticket.

David Watt
    J.A.

C.W. Hourigan
    J.A.

Grant Huscroft
    J.A.


