What if the motorist demands a trial -- can the prosecution "amend up" the speed to meet the actual speed?
The Court of Appeal today in York (Regional Municipality) v. Winlow, 2009 ONCA 643 said "yes" subject to certain limits:
[61] I do not consider it inappropriate when a police officer uses discretion to charge a driver with speeding at a rate less than the actual rate over the speed limit. In a sense it is a form of plea bargaining. Normally, the prosecutor engages in plea bargaining with the defence. If a police officer charged a person with speeding 30 km per hour over the speed limit, and the prosecutor said that the charge would be reduced by 15 km if the person pleaded guilty, no one could seriously object. Plea bargaining by the prosecution and the defence is as essential to the effective working of the provincial regulatory system as it is to the effective working of the criminal justice system.
[62] In this case, the police officer, not the prosecutor, initiated the plea bargaining. Many offending drivers no doubt welcome receiving this "break" from the officer, without having to go to court to obtain it. Systemically, many cases can be disposed of without using valuable court time and resources. Indeed, I expect that the large number of speeding charges, the heavy volume of traffic cases before justices of the peace, and the desirability of finding an efficient way to deal with many of these cases has prompted the practice now before this court.
[63] However, when drivers, as is their right, decide not to plead guilty and pay the set fine, but to instead defend the charge at a trial, different considerations come into play. The prosecutor then has carriage of the charge against the defendant. The prosecutor's carriage of the charge includes the discretion to manage the prosecution in accordance with the statute.
[64] And, under s. 34(2) of the POA, the legislature has expressly authorized the court to amend a charge to conform to the evidence disclosed at trial. Defendants have no vested right to insist on a trial only on the charge named on the certificate of offence. The prosecutor may thus exercise discretion by asking the court to "amend up" the certificate. The legislation gives the prosecutor the right to do so: see R. v. Irwin. It is not for the courts to interfere with the exercise of prosecutorial discretion except in cases of flagrant impropriety: see Krieger v. The Law Society of Alberta, [2002] 3 S.C.R. 372.
[65] However, before the amendment is granted, the court must consider the four requirements of s. 34(4) – the word "shall" makes the court's consideration mandatory. These requirements are intended to ensure that the court's amendment power, although broad, is not exercised in a way that is unfair to defendants.
34(4) The court shall, in considering whether or not an amendment should be made, consider,
(a) the evidence taken on the trial, if any;
(b) the circumstances of the case;
(c) whether the defendant has been misled or prejudiced in the defendant's defence by a variance, error or omission; and
(d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
[66] Although the court's consideration of these requirements will depend on the facts of each case, I offer the following general observations.
(i) The evidence taken at trial
[67] Obviously the court can "amend up" a certificate only if the evidence supports the amendment.
(ii) The circumstances of the case
[68] The particular circumstances of a case may well influence the court's decision whether to grant an amendment. For example, in Ontario (Ministry of Labour) v. NMC Canada Inc. (1995), 25 O.R. (3d) 461 (C.A.), this court ordered an amendment to an information that had charged a partnership with a workplace safety offence.[2] The amendment substituted for the partnership the two individual partners as defendants. One "circumstance of the case" strongly favouring the amendment was the seriousness of the charge: a workplace fatality. As a partnership is not a legal entity for the purpose of proceedings under the POA, without the amendment the charge could not proceed. See also Ottawa (City) v. Seenanan (2004), 47 M.P.L.R. (3d) 4 (Ont. C.A.) at paras. 24-29.
[69] It is unwise to try to catalogue the various circumstances that might be considered under s. 34(4)(b) of the POA. These ought to be addressed case by case as the circumstances arise.
(iii) Whether the defendant has been misled or prejudiced in the defendant's defence by a variance
[70] The court must consider whether the defendant is misled or prejudiced by the proposed amendment. This is a key consideration in deciding whether to grant an amendment. Being misled or prejudiced under s. 34(4)(c), however, does not mean the prospect of facing more severe consequences because of the amendment. That a defendant may face a stiffer fine, more demerit points or increased insurance premiums is not a reason to refuse to amend the certificate to allege a higher rate a speed over the limit. To decide whether a defendant is misled or prejudiced under s. 34(4)(c), the court must consider whether the defendant's opportunity and ability to meet the charge would be adversely affected by the amendment. The court must ask: will "amending up" mislead or prejudice the defendant; and if so, can the misleading or prejudice be cured by, for example, an adjournment.
[71] Justices of the peace and prosecutors should be especially sensitive to the question of prejudice. As they know better than most, many defendants who appear in traffic court are self-represented; many have little or no knowledge of the justice system; many are poorly educated or have but a rudimentary knowledge of English. As McKinnon A.C.J.O. said nearly 30 years ago, in words still true today, "the Provincial Offences Act is not intended as a trap for the unskilled or unwary": see R. v. Jamieson (1981), 64 C.C.C. (2d) 550 at p. 552.
[72] Special care must be taken to ensure that POA proceedings are fair to defendants. Where the prosecutor seeks to "amend up", the prosecutor and the court should ensure, at a minimum, that the defendant understands the amendment, understands the consequences of the amendment and is given a reasonable opportunity to make submissions on why the amendment should not be granted.
[73] Under s. 34(2) of the POA, the amendment is to be made during the trial as disclosed by the evidence. An important question bearing on the fairness of the amendment is when the defendant receives notice of it. No special form of notice is required. Indeed, the notice need not even be in writing. But the timing matters.
[74] Ideally, the defendant should receive notice of a proposed amendment before the day of trial. However, in POA proceedings this ideal will not always be practical. If, for practical reasons, notice of the amendment can only be given on the day of trial, then it would be far preferable that the notice be given before the trial begins and that the defendant then be given a reasonable opportunity to consider how to respond.
[75] After notice is given, in most cases, the prosecutor and the court would be wise to do what was done in this case – offer the defendant an adjournment to consult counsel or an agent or just to have more time to consider whether to conduct the defence differently. Of course, if the defendant is represented by an agent, and notice of the motion to amend is not given until the day of trial, the case may necessarily have to be adjourned so that the agent can obtain instructions.
[76] However, I would not lay down as an inflexible rule that on a request to amend up, an adjournment should always be granted if the defendant wants one. Some cases could no doubt go ahead even if the defendant objects. However, prosecutors and the court must take care not to pressure defendants into proceeding, but instead give them a fair opportunity to state their position. Despite a prosecutor's or the court's urge to proceed, an adjournment, if asked for or desired, may be the sensible course of action. By itself, it may cure even the possibility of prejudice.
[77] The appeal court judge in the present case observed that if the practice of amending up will most often require an adjournment, then the practice is at odds with an important objective of POA proceedings: to deal with charges quickly, efficiently and inexpensively. He may well be right. However, as I have already said, the practice is not inherently unfair or impermissible. Municipalities and their prosecutors will have to decide whether this practice makes for the most efficient use of resources available for POA proceedings.
[78] Although I have suggested that defendants be given notice of their potentially increased jeopardy before the trial begins, the broad amendment power in s. 34(2) of the POA does contemplate that notice of the amendment can be made during or even at the conclusion of the evidence. Still, the later during the proceedings that the defendant is given notice of the proposed amendment, the greater the risk of prejudice if the amendment is granted: see R. v. Wanamaker, [2005] O.J. No. 1581 (Ct. J.). Where notice to amend up is first given during the trial, defendants may well argue that they would have conducted their defence differently or even retained an agent had they known that they faced more serious consequences. In the face of these or other arguments, before granting an amendment, the court must consider whether prejudice will result and whether any resulting prejudice can realistically be cured.
[79] Ordinarily, the prosecutor will ask the court to amend up. Yet the amendment power in s. 34(2) also contemplates that the court on its own initiative can amend up a certificate of offence: see, for example, R. v. Morozuk, [1986] 1 S.C.R. 31. I would not encourage justices of the peace to do so; certainly, they should be cautious before doing so. And, before deciding to exercise the amendment power on their own initiative, justices of the peace must give every defendant a fair opportunity to address the question of prejudice and make submissions why the amendment should be refused: see R. v. Rahil (2005), 21 M.V.R. (5th) 262 (Ont. Ct. J.). Again, before exercising this power, justices of the peace must consider whether the defendant is misled or prejudiced by the amendment, and whether any misleading or prejudice can be cured.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
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