York (Regional Municipality) v. Winlow,

• Jurisdiction: Ontario
• Judge: Laskin, Gillese and Rouleau, JJ.A.
• Neutral Citation: 2009 ONCA 643
• Citation: 2009 ONCA 643,(2009), 265 O.A.C. 326 (CA),99 OR (3d) 337,[2009] CarswellOnt 5208,[2009] OJ No 3691 (QL),265 OAC 326,86 MVR (5th) 171,265 O.A.C. 326,99 O.R. (3d) 337,(2009), 265 OAC 326 (CA),[2009] O.J. No 3691 (QL)
• Date: 14 January 2009
• Court: Court of Appeal (Ontario)

York v. Winlow (2009), 265 O.A.C. 326 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AU.021

Her Majesty the Queen Ex Rel. The Regional Municipality of York (appellant) v. Robert J. Winlow (respondent)

(C48716; 2009 ONCA 643)

Indexed As: York (Regional Municipality) v. Winlow

Ontario Court of Appeal

Laskin, Gillese and Rouleau, JJ.A.

September 10, 2009.

Summary:

Winlow was caught speeding on Highway 400 in the Regional Municipality of York (York). The police officer who stopped him said that he was driving 30 kilometres per hour over the speed limit but ticketed him for only 15 kilometres per hour over the limit. However, when Winlow refused to pay the set fine and asked for a trial, the prosecutor sought an amendment to charge him with driving 30 kilometres per hour over the limit (which would give rise to a larger fine). The justice of the peace refused to amend the charge, and her decision was upheld on appeal in the Ontario Court of Justice. York appealed, raising the following issues:

"1. Is the particular rate of speed an essential element of the offence of speeding?

2. Depending on the rate of speed, is the fine for speeding fixed or does the court have discretion to reduce the fine?

3. Did the courts below err in refusing to amend the charge, and, more broadly and importantly, is the practice of 'amending-up' permissible?"

The Ontario Court of Appeal held that: (1) a particular rate of speed was not an essential element of the offence of speeding; (2) the courts did not have discretion to reduce the fine and (3) amending up was permissible in certain circumstances. The court, however, dismissed York's appeal because the municipality was not really interested in obtaining a greater fine for Winlow, but just wanted some guidance on the issues raised on appeal. Further, having ruled that they could not grant the amendment, neither the justice of the peace nor the appeal court judge made a finding that Winlow was driving at a speed of 130 km. per hour. Thus the amendment lacked an evidentiary basis.

Motor Vehicles - Topic 2603

Regulation of vehicles and traffic - Rate of speed - General - Elements of offence - [See first Trials - Topic 1096 ].

Motor Vehicles - Topic 2626

Regulation of vehicles and traffic - Rate of speed - Offences - Validity of charge (incl. amending up) - Winlow was caught going 30 km. per hour over the speed limit on Highway 400 in the Regional Municipality of York - The police officer ticketed him for only 15 kilometres per hour over the limit - However, when Winlow asked for a trial, the prosecutor sought an amendment to charge him with driving 30 km. per hour over the limit (which would give rise to a larger fine) - At issue was whether the practice of "amending-up" (a common practice among Ontario's municipalities) was permissible - The Ontario Court of Appeal stated that there was nothing inherently unfair about the practice itself - The practice sought "to achieve, or at least balance, two laudable objectives, both of which are in the public interest: to provide offending drivers with an incentive to settle out of court, thus disposing of many speeding charges quickly and efficiently; and to ensure that drivers who commit speeding offences are convicted at the actual rate of speed over the speed limit that they drive, thus promoting both specific and general deterrence" - However, the court noted that each case turned on its own facts - Drivers were protected by the four requirements of s. 34(4) of the Provincial Offences Act (POA) - "A speeding charge may be 'amended up' only if the evidence at trial supports the amendment, the circumstances of the case warrant the amendment, the defendant is not prejudiced by the amendment and no injustice would be visited on the defendant by granting the amendment. Although, under s. 34(5) of the POA, the granting or refusal of an amendment is a question of law, the four requirements of s. 34(4) call for a fact-specific inquiry to be addressed by the court in each case" - See paragraphs 55 to 84.

Motor Vehicles - Topic 2626

Regulation of vehicles and traffic - Rate of speed - Offences - Validity of charge (incl. amending up) - Winlow was caught speeding on Highway 400 in the Regional Municipality of York (York) - The police officer who stopped him said that he was driving 30 kilometres per hour over the 100 km. per hour speed limit, but ticketed him for only 15 kilometres per hour over the limit - However, when Winlow refused to pay the set fine and asked for a trial, the prosecutor sought an amendment to charge him with driving 30 kilometres per hour over the limit (which would give rise to a larger fine) - The justice of the peace refused to amend the charge, and her decision was upheld on appeal - York appealed - The Ontario Court of Appeal held that while "amending-up" was permissible in certain circumstances and would not have prejudiced Winlow in this case, however, the court dismissed the appeal, holding that the amendment lacked an evidentiary basis where the courts below had not made a finding that Winlow was driving 130 km. per hour - See paragraphs 55 to 91.

Motor Vehicles - Topic 2729

Regulation of vehicles and traffic - Rate of speed - Punishments - Fines - Based on speed - [See Motor Vehicles - Topic 4305 ].

Motor Vehicles - Topic 4305

Offences - Penalties - Minimum fines or fines established by statute - Deviation from - Section 128(14) of the Highway Traffic Act (HTA) provided that a person convicted of speeding "... is liable ... to" a fine of $X for each kilometre per hour that the motor vehicle was driven over the speed limit - An issue arose as to whether s. 128(14) eliminated the court's discretion to impose a lesser fine than the fine derived from multiplying the number of kilometres per hour over the speed limit by the specified dollar figure - The Ontario Court of Appeal stated that "... the meaning of the words 'is liable ... to' in s. 128(14) of the HTA is not ambiguous. Especially in the light of their context and the legislative purpose of s. 128(14), in my view, they admit of only one meaning: they establish a statutory penalty regime that obliges courts to impose the fines specified in the section. Courts have no discretion to reduce these fines" - See paragraphs 29 to 54.

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to the other - The English version of s. 128(14) of the Highway Traffic Act (HTA) provided that a person convicted of speeding "... is liable ... to" a fine of $X for each kilometre per hour that the motor vehicle was driven over the speed limit - The Ontario Court of Appeal looked to the French version of s. 128(14) in determining whether s. 128(14) eliminated the court's discretion to impose a lesser fine than the fine derived from multiplying the number of kilometres per hour over the speed limit by the specified dollar figure - See paragraphs 53 and 54.

Trials - Topic 1096

Summary convictions - Informations, search warrants and certification of offences - Amendments - Power of judge to amend - A prosecutor sought to amend a speeding charge, to increase the number of kilometres the defendant was allegedly driving over the speed limit - An issue arose as to whether the particular rate of speed was an essential element of the offence of speeding, because if it was, and the certificate was amended, the defendant would be facing a different offence - The Ontario Court of Appeal held that the offence was speeding contrary to s. 128(1) of the Highway Traffic Act (HTA) and the actual rate of speed was a particular relevant to penalty under s. 128(14) of the HTA - The court stated that, in any event, even if an amendment to conform to the evidence disclosed at trial would mean that the defendant was facing a new offence, the court would still have the power to grant the amendment under s. 34(2) of the Provincial Offences Act so long as it was supported by the evidence, and would not cause prejudice or an injustice to the defendant - See paragraphs 25 to 28.

Trials - Topic 1096

Summary convictions - Informations, search warrants and certificates of offences - Amendments - Power of judge to amend - [See both Motor Vehicles - Topic 2626 ].

Trials - Topic 1097

Summary convictions - Informations, search warrants and certificates of offences - Amendments - Whether amended information constituted a new offence - [See first Trials - Topic 1096 ].

Words and Phrases

Is liable ... to - The Ontario Court of Appeal discussed the meaning of this phrase as it was used in s. 128(14) of the Highway Traffic Act, R.S.O. 1990, c. H-8 - See paragraphs 34 to 54.

Cases Noticed:

R. v. Ali, [1993] O.J. No. 4675 (C.J.), refd to. [para. 25].

R. v. Irwin (R.) (1998), 107 O.A.C. 102; 38 O.R.(3d) 689 (C.A.), refd to. [para. 27].

R. v. Weber (2003), 64 O.R.(3d) 126 (C.J.), refd to. [para. 31].

R. v. Carter, [2005] O.J. No. 654 (C.J.), refd to. [para. 31].

R. v. Chu (2005), 77 O.R.(3d) 380 (C.J.), refd to. [para. 31].

R. v. Kuntz, [2004] O.J. No. 4631 (C.J.), refd to. [para. 32].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 33].

R. v. Wu (Y.), [2003] 3 S.C.R. 530; 313 N.R. 201; 182 O.A.C. 6; 2003 SCC 73, refd to. [para. 33].

R. v. Dilorenzo; R. v. Bancroft (1984), 2 O.A.C. 62; 45 O.R.(2d) 385 (C.A.), refd to. [para. 34].

Minister of National Revenue v. Panko, [1972] S.C.R. 319, refd to. [para. 37].

R. v. Smith, [1923] 1 D.L.R. 820 (N.S.S.C.), refd to. [para. 38].

R. v. Harrison and O'Kelly, [1924] 3 D.L.R. 312 (Man. C.A.), refd to. [para. 39].

R. v. Robinson, [1951] S.C.R. 522, refd to. [para. 40].

R. v. Fraser (1944), 81 C.C.C. 114 (P.E.I.S.C.), refd to. [para. 40].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 41].

Canada 3000 Inc. (Bankrupt), Re, [2006] 1 S.C.R. 865; 349 N.R. 1; 212 O.A.C. 338; 2006 SCC 24, refd to. [para. 52].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, refd to. [para. 64].

Ontario (Minister of Labour) v. NMC Canada Inc. - see R. v. NMC Canada Inc. and Stamford Technologies Inc.

R. v. NMC Canada Inc. and Stamford Technologies Inc. (1995), 85 O.A.C. 232; 25 O.R.(3d) 461 (C.A.), refd to. [para. 68].

Ottawa (City) v. Seenanan (C.P.), [2004] O.A.C. Uned. 164; 47 M.P.L.R.(3d) 4 (C.A.), refd to. [para. 68].

R. v. Jamieson (1981), 64 C.C.C.(2d) 550 (Ont. C.A.), refd to. [para. 71].

R. v. Wanamaker, [2005] O.J. No. 1581 (C.J.), refd to. [para. 78].

R. v. Morozuk, [1986] 1 S.C.R. 31; 64 N.R. 189; 68 A.R. 241, refd to. [para. 79].

R. v. Rahil (2005), 21 M.V.R.(5th) 262 (Ont. C.J.), refd to. [para. 79].

Statutes Noticed:

Highway Traffic Act, R.S.O. 1990, c. H-8, sect. 128(1)(d) [para. 5]; sect. 128(14) [para. 8].

Provincial Offences Act, R.S.O. 1990, c. P-33, sect. 34(2) [para. 10]; sect. 34(4) [para. 11].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 41].

Hansard (Ont.) - see Ontario, Hansard, Legislative Assembly, Official Report of Debates.

Ontario, Hansard, Legislative Assembly, Official Report of Debates, 2nd Sess., 28th Parliament (March 31, 1969), p. 2866 [para. 52].

Willis, John, Statute Interpretation in a Nutshell (1938), 16 Can. Bar Rev. 1, generally [para. 44].

Counsel:

Hans J. Saamen, for the appellant;

Adam Little, as amicus curiae.

This appeal was heard on January 14, 2009, by Laskin, Gillese and Rouleau, JJ.A., of the Ontario Court of Appeal. The following decision of the court was delivered by Laskin, J.A., on September 10, 2009.