The Ontario Court of Appeal’s decision in R. v. Michaud comprehensively considers the powers of a judge of the Ontario Court of Justice to review an appeal or acquittal in a proceeding “commenced by a certificate under Part I” of Ontario’s Provincial Offences Act (the “POA”). For a unanimous Court, Justice Lauwers held that such appellate powers are broad indeed, going far beyond the typically deferential standards of review applicable in civil and criminal cases.

The Background

The accused in this case was a commercial truck driver. He was required by law to equip his truck with a functional speed limiter set to a maximum speed of 105 km/h. The speed limiter on his truck was functional, but was set to 109.4 km/h. He was issued a certificate of offence, commonly known as a “ticket”, under Part I of the POA. (This differs from laying an “information”, which leads to a more protracted procedure under Part III of the POA.) In a trial before a justice-of-the-peace, the accused admitted the relevant facts but held that the legislation under which he was charged violated theCharter. The justice-of-the-peace accepted that argument. On appeal, the Ontario Court of Justice admitted fresh expert evidence, found no Charter violation, and set aside the trial decision.

Justice Blair granted leave to appeal to the Court of Appeal on the following two questions of law:

  1. What is the scope of an appeal to the Ontario Court of Justice on a Part I POA offence, pursuant to s. 135 of the POA?
  2. Is s. 68.1(1) of the [Highway Traffic Act] unconstitutional because it violates the right to security of the person, which is protected by s. 7 of the Charter?

The Scope of the Appeal Judge’s Powers

The appellant argued that the appeal judge erred by effectively “conducting a re-trial”. He submitted that it was inappropriate to re-weigh the evidence and revisit credibility findings given that the trial was comprehensive, and all parties were represented by counsel (unlike many trials for such offences). The appellant also submitted that, in any event, the POA does not contemplate a “re-trial” of the sort allegedly conducted by the appeal judge.

Justice Lauwers held that the appeal judge was entitled to review the trial decision in the manner that he did, and that his powers on appeal were broad indeed. He held:

[45]      Section 135(1) of the POA provides that “an acquittal, conviction or sentence in a proceeding commenced by certificate under Part I” may be appealed to the Ontario Court of Justice. Section 136(2) of the POA stipulates that such appeals are to be “conducted by means of a review”. The appeal court’s broad powers in conducting the review are set out in ss. 136(3):

(3)  In determining a review, the court may,

  1. hear or rehear the recorded evidence or any part thereof and may require any party to provide a transcript of the evidence, or any part thereof, or to produce any further exhibit;
  2. receive the evidence of any witness whether or not the witness gave evidence at the trial;
  3. require the justice presiding at the trial to report in writing on any matter specified in the request; or
  4. receive and act upon statements of agreed facts or admissions.

The appeal court has power to affirm, reverse or vary the decision under appeal, or to direct a new trial, under s. 138(1).

[46]      The appellant submits that the scope of appeal under Part I is broader than an appeal of a conviction under an information laid under Part III, which is instead governed by ss. 116 to 134 of the POA. I agree that this is generally true. […]

[47]      The centrality of legislative intent to the determination of the appropriate standard of review was recognized by Binnie J. in [Khosa …]

[48]      As explained […] in R. v. Gill […], the legislature clearly intended Part I appeals to be conducted as robust reviews, so that deference to the trial justice is limited to credibility findings:

I am of the view that I must review the record before me and reach my own conclusion on the issue. It is not a matter of deferring to the trial justice’s conclusion and intervening only if I conclude that her decision was unreasonable. To approach it in that way would be to effectively transpose the Part III provisions to Part I and II appeals when the legislature took pains to distinguish between the two. However, where findings of credibility are in issue, I should accept the trial justice’s findings unless they are unreasonable.

[49]      There is no basis in the legislation, case law or principle to depart from this robust review simply because the present case is not a “typical” Part I matter, as submitted by the appellant.

(3)        The Effect of the Fresh Evidence

[50]      The appellant submits that the appeal court’s Part I review powers do not permit an appeal judge to engage in extensive re-weighing of the evidence or to interfere with credibility findings. The appellant argues that, in doing so, the appeal judge impermissibly conducted a re-trial.

[51]      The appellant’s argument ignores the important role played by the fresh evidence. […]

[52]      Once the fresh evidence was admitted, the appeal judge was obliged to consider it along with all of the other evidence, and to consider whether the trial justice’s views of the trial evidence were reasonable.

[…]

[54]      In my view, in light of the fresh evidence, the appeal judge was entitled if not obliged to re-assess all of the evidence under s. 136 of the POA. The issue of the sufficiency of the fresh evidence is well within the purview of an appeal judge reviewing a decision under Part I of the POA: Gill, at para. 11. So too is the power of the appeal judge to come to his own conclusion on all of the evidence, and to find, as he did, that the appellant’s evidence was not sufficient to establish on a balance of probabilities that the speed limiter requirement deprived Mr. Michaud of his right to security of the person.

[55]      Contrary to the appellant’s assertions, the appeal judge did not so much overturn the credibility findings of the trial justice, as qualify them in light of the fresh evidence. […]

(4)        Conclusion on the Scope of Appellate Review by the Ontario Court of Justice on a Part I POA offence

[57]      The appellant has not established that the appeal judge committed a palpable and overriding error, or an error in principle, in the way he approached his role or the evidence.

[58]      I would reject the appellant’s first ground of appeal, and answer the first question on this appeal as follows: The scope of an appellate review by the Ontario Court of Justice on a Part I POA offence pursuant to s. 135 of the POA, is broad. There is no need, in the circumstances of this case, to add judicial gloss to a well-understood review standard and appeal methodology.

Disposition

In the result, Justice Lauwers found that the appeal judge did err in failing to finding a violation of s. 7 of the Charter. However, he found it to be justified under s. 1. In the result, therefore, the appeal was dismissed.