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PROCEEDINGS - Appeals and judicial review

Friday, October 18, 2019 @ 8:45 AM  


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Appeal by the accused, Morillo, from a provincial offences appeal court's decision affirming a conviction for speeding. The accused received a ticket for driving 107 kph in a 60 kph zone. The accused was certain he was not speeding, and that the speed limit was not 60 kph. He checked the signs to confirm his belief. The accused represented himself at trial. He was convicted of speeding in a 70 kph zone. The accused represented himself on appeal and obtained a new trial. Following the second trial, the accused was convicted again of speeding in a 70 kph zone. The accused appealed. The provincial offences appeal court affirmed the conviction. The accused remained self-represented throughout the proceedings. With assistance from amicus, the accused obtained special leave to appeal to the Court of Appeal. The Crown conceded that the conviction should be quashed. The Court proceeded based on the accused's written submissions.

HELD: Appeal allowed. The trial justice misapplied the principles governing the burden of proof and reasonable doubt. The accused gave evidence inconsistent with the ticketing officer's testimony. The trial justice's preference for the officer's evidence failed to resolve the inconsistency in the manner required by WD and reflected a legally inadequate standard of proof akin to a balance of probabilities. The appeal judge failed to recognize and identify this fundamental flaw in the conviction recorded at trial. In addition, the trial justice erred in the restrictions imposed on the accused's right to cross-examine the ticketing officer on inconsistencies in his testimony between the two trials. The appeal judge erred by failing to recognize the error and by repeating it. Rather than criticizing the self-represented accused 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 ensure a fair process and a reasoned conclusion. The conviction was set aside, and a new trial was ordered.

R. v. Morillo, [2019] O.J. No. 4565, Ontario Court of Appeal, D. Watt, C.W. Hourigan and G. Huscroft JJ.A., September 11, 2019. Digest No. TLD-October142019010