The accused, Charles Lupo, appealed his conviction for driving with a suspended license. The trial judge made errors in his assessment of the accused's credibility and in admitting prejudicial evidence. While the trial judge could have rejected the accused's defense, the errors require a new trial. The appeal was allowed and a new trial was ordered.
It was so important and prudent to include a right to reasonable bail in the Bill of Rights because bail is inherently intertwined with a defendant's right to innocence until proven guilty. A person should have the right to be released on bail while preparing for their trial.
Appellant’s Reply to Commissioner's Response to the Appellant’s grounds of appeal in accordance with rule 24 of the Tribunal Procedure (First-tier) (General Regulatory Chamber) Rules 2009. Concerns requests for information made to Humberside police to obtain the number of times the phrase "YOU CANT MAKE ME" appeared in police officers witness statements. Humberside Police relied on section 14(1) (vexatious requests) of FOIA.
It was so important and prudent to include a right to reasonable bail in the Bill of Rights because bail is inherently intertwined with a defendant's right to innocence until proven guilty. A person should have the right to be released on bail while preparing for their trial.
Appellant’s Reply to Commissioner's Response to the Appellant’s grounds of appeal in accordance with rule 24 of the Tribunal Procedure (First-tier) (General Regulatory Chamber) Rules 2009. Concerns requests for information made to Humberside police to obtain the number of times the phrase "YOU CANT MAKE ME" appeared in police officers witness statements. Humberside Police relied on section 14(1) (vexatious requests) of FOIA.
Contents :
Definition
Importance
Attendance
Appearance
P/S : I am sharing my personal notes of law-related subjects. Some parts of them are explained in a very informal-relaxed way and mix of languages (BM and English). Secondly, as law revolves every day, there will be outdated parts in my notes. Two ways of handling it.. (1) double check with the latest law and keep it to yourself (2) same with No. 1 coupled with your generosity to share with us, the LinkedIn users (hiks ^_^). Till then, have a nice day!
Uploaded notes in my SlideShare are limited to the basic principles based on personal understanding and subject to few amendments. Comments and updates are welcomed! If the notes benefited you, kindly let me know :)
Letter Before Action (26 September 2019) in the matter of a proposed application for judicial review of the Independent Office for Police Conduct decisions (refs: 2017/082079 and 2019/115969) in relation to appeals against Humberside Police complaint investigation outcome letters of 12 September 2018 and 7 March 2019 (refs: CO/432/15 and CO/632/18) which were dealt with unlawfully in just about every way imaginable. The initial matter (CO/432/15) concerns a police conduct complaint submitted 8 November 2015 which was initially dealt with by way of Local Resolution. The outcome (which was appealed and referred to the IOPC) was provided on 3 April 2017. On completing the review, the IOPC deemed the statutory conditions were not met for the matter to be suitable for local resolution and directed the force to fully investigate the complaint, taking into consideration further information such as evidence in support of alleged collusion between the police, CPS and Courts. Humberside Police ignored the IOPC and dealt with the complaint omitting to consider the further information and evidence and the IOPC was satisfied with how the complaint was investigated. The following matter (CO/632/18) concerns a police conduct complaint submitted inadvertently on 10 October 2018 which was deemed appropriate to be proportionately investigated. The force had – so it claimed – sent the complaint investigation outcome letter concerning CO/432/15 to the wrong address thereby failing to provide sufficient safeguard against unauthorised access, loss or damage to someone’s personal data. The letter contained details of the criminal record of the person whose data protection rights were infringed upon and the reason for his arrest. The data breach (if the letter had in fact been sent) was more severe/unfair due to the disclosed details of the criminal record relating to a wrongful conviction contributed by witnesses committing perjury (the arresting officer is suspected to have incited them). The correspondence to the police on 10 October was not intended as a formal complaint but was handled as one by the force in accordance with the complaint’s procedure under the police reform Act. The communication was predominantly to alert the force of its obligations to refer the personal data breach to the Information Commissioner and to obtain some preliminary information in anticipation of submitting a complaint (to the force) in case it was a prerequisite to raising the issue with the Commissioner. The queries were never answered and the Investigating Officer just ploughed on with the process regardless ignoring the complainant. Consequently the complainant was unable to feed into the process in respect of the information he was denied throughout the course of the investigation because it was not until it was too late when the investigation had completed that the questions he had asked were answered. The Investigation outcome revealed that ‘the matter was referred to .......
Contents :
Definition
Importance
Attendance
Appearance
P/S : I am sharing my personal notes of law-related subjects. Some parts of them are explained in a very informal-relaxed way and mix of languages (BM and English). Secondly, as law revolves every day, there will be outdated parts in my notes. Two ways of handling it.. (1) double check with the latest law and keep it to yourself (2) same with No. 1 coupled with your generosity to share with us, the LinkedIn users (hiks ^_^). Till then, have a nice day!
Uploaded notes in my SlideShare are limited to the basic principles based on personal understanding and subject to few amendments. Comments and updates are welcomed! If the notes benefited you, kindly let me know :)
Letter Before Action (26 September 2019) in the matter of a proposed application for judicial review of the Independent Office for Police Conduct decisions (refs: 2017/082079 and 2019/115969) in relation to appeals against Humberside Police complaint investigation outcome letters of 12 September 2018 and 7 March 2019 (refs: CO/432/15 and CO/632/18) which were dealt with unlawfully in just about every way imaginable. The initial matter (CO/432/15) concerns a police conduct complaint submitted 8 November 2015 which was initially dealt with by way of Local Resolution. The outcome (which was appealed and referred to the IOPC) was provided on 3 April 2017. On completing the review, the IOPC deemed the statutory conditions were not met for the matter to be suitable for local resolution and directed the force to fully investigate the complaint, taking into consideration further information such as evidence in support of alleged collusion between the police, CPS and Courts. Humberside Police ignored the IOPC and dealt with the complaint omitting to consider the further information and evidence and the IOPC was satisfied with how the complaint was investigated. The following matter (CO/632/18) concerns a police conduct complaint submitted inadvertently on 10 October 2018 which was deemed appropriate to be proportionately investigated. The force had – so it claimed – sent the complaint investigation outcome letter concerning CO/432/15 to the wrong address thereby failing to provide sufficient safeguard against unauthorised access, loss or damage to someone’s personal data. The letter contained details of the criminal record of the person whose data protection rights were infringed upon and the reason for his arrest. The data breach (if the letter had in fact been sent) was more severe/unfair due to the disclosed details of the criminal record relating to a wrongful conviction contributed by witnesses committing perjury (the arresting officer is suspected to have incited them). The correspondence to the police on 10 October was not intended as a formal complaint but was handled as one by the force in accordance with the complaint’s procedure under the police reform Act. The communication was predominantly to alert the force of its obligations to refer the personal data breach to the Information Commissioner and to obtain some preliminary information in anticipation of submitting a complaint (to the force) in case it was a prerequisite to raising the issue with the Commissioner. The queries were never answered and the Investigating Officer just ploughed on with the process regardless ignoring the complainant. Consequently the complainant was unable to feed into the process in respect of the information he was denied throughout the course of the investigation because it was not until it was too late when the investigation had completed that the questions he had asked were answered. The Investigation outcome revealed that ‘the matter was referred to .......
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1. Case name:
R. v. Lupo
Between
Her Majesty the Queen, and
Charles Lupo
[2008] O.J. No. 5591
Information No. 07-3708
Ontario Court of Justice
Newmarket, Ontario
P. Tetley J.
Oral judgment: December 24, 2008.
(30 paras.)
Transportation law -- Motor vehicles and highway traffic -- Liability -- Driving while license
suspended -- Appeal by accused from conviction for driving with suspended license allowed --
Accused denied knowledge of suspension and alleged to have never lived at address Ministry sent
suspension notice to -- Trial judge's conclusion accused not credible on basis he was forgetful in
responding to notice brought to his attention difficult to rationalize -- Judge erred in admitting
accused's driving record, which was highly prejudicial and did not prove he had been notified of
suspension -- As it was possible to reject accused's defence, but credibility wrongly assessed at
trial, new trial ordered.
Appeal by the accused from his conviction for driving while his license was suspended. The
accused had been operating a commercial vehicle when he was stopped for inspection. The
inspector learned that the accused's license had been suspended for non-payment of fines. The
accused alleged that he was unaware that his license had been suspended and denied having ever
lived at the address the Ministry sent the notice of suspension to. The trial judge made a negatively
credibility finding about the accused. The accused argued the trial judge had erred in improperly
assessing his credibility, reversing the burden of proof and improperly participating as an analyst of
the accused's signature.
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2. HELD: The appeal was allowed. The trial judge improperly assessed the accused's credibility. The
judge concluded that the accused may have been forgetful or irresponsible in neglecting to respond
to a notice when brought to his attention. However, as the judge did not make a finding of
intentional disregard or wilful blindness, it was difficult to rationalize how this observation led to a
negative credibility finding. Admitting the accused's driving record into evidence was highly
prejudicial and unfair. The driving record had no probative value as it did not prove that the accused
had been notified that his license had been suspended. The trial judge also improperly relied on his
own experience to analyze the accused's handwriting. While the trial judge had improperly assessed
the accused's credibility, it was still possible to reject the accused's defence. Therefore, a new trial
was ordered.
Statutes, Regulations and Rules Cited:
Highway Traffic Act, R.S.O. 1990, c. H.8, s. 52(1), s. 53(1)
Charge: Drive While Under Suspension - S. 53(1) Highway Traffic Act.
Counsel:
C. Ponesse: Counsel for the Crown.
M. Riddell: Counsel for the Appellant.
APPEAL JUDGMENT
1 P. TETLEY J. (orally):-- This is an appeal by Charles Lupo from a decision that resulted in the
conviction of the Appellant for the offence of driving while suspended contrary to Section 53(1) of
the Highway Traffic Act.
FACTUAL SUMMARY
2 On March 30, 2007, the Appellant was operating a commercial motor vehicle that was subject
to inspection by provincial offences investigator Bendictson. At the investigator's request the
Appellant was asked to produce certain documentation relating to the vehicle and his driver's
licence. All of the requested information was produced according to the investigator with the
exception of the licence.
3 A subsequent check of the status of the Appellant's driver's licence revealed that it was under
suspension as a consequence of unpaid fines.
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3. 4 The Appellant testified as the sole defence witness at his own trial.
5 Charles Lupo indicated he produced his driver's licence as requested by the inspector. He
denied any knowledge of the fact his licence had been suspended effective November 8, 2006.
6 The Appellant also denied having ever received notice of the suspension of his driving
privileges.
7 He acknowledged having resided at the address noted in the Ministry of Transportation records
and confirmed his residence had not changed over the course of the previous 27 years.
8 The Appellant also denied having previously received notice that his licence was suspended in
either December 2006 or January 2007.
GROUNDS OF APPEAL
9 In an exemplary legal factum the Appellant's counsel cites a number of alleged deficiencies in
the Appellant's trial and the analysis employed by the presiding Justice of the Peace that led to the
Appellant's conviction.
10 The alleged legal deficiencies may be generally categorized as follows:
1. The failure of the Crown to establish proof of personal service of the notice
of suspension of the Appellant's driver's licence by way of admissible
documentary or viva voce testimony;
2. The improper and prejudicial admission, albeit with the consent of the
appellant's trial counsel, not Mr. Riddell, of the Appellant's Highway
Traffic Act driving record during the course of the Crown's case;
3. The trier of facts' improper application of the Supreme Court of Canada
directives in R. v. W.D. (1991) 63 C.C.C. (3d) 397 (S.C.C.) in his analysis
of the Appellant's trial testimony;
4. The reversal of the burden of proof as a consequence of the failure of the
trier of fact to consider the potentially available defence of due diligence;
5. The impermissible participation by the trier of fact as an analyst of the
Appellant's purported signature in the absence of expert testimony.
ANALYSIS
11 In considering the issues raised in this appeal I have reviewed the entirety of the trial record
including the documentary evidence tendered as exhibits at the Appellant's trial. I have reviewed the
Appellant's factum, the related authorities and counsel's oral submissions at the time this matter was
argued in September.
12 In my view, while there is merit to most of the grounds of appeal, cited two of the identified
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4. concerns are dispositive of this appeal.
13 Firstly, a review of the trier of fact's consideration of the Appellant's trial testimony indicates
an inexact application of the credibility assessment directed by the Supreme Court of Canada in R.
v. W.D. That case requires that the accused be acquitted if the trier of fact believes the accused's
evidence or is left in a state of reasonable doubt as a consequence of that evidence. Even if the trier
of fact is not left in doubt by the evidence offered by the defendant, he or she, must nevertheless
ask, on the basis of the evidence that is accepted, whether they are convinced beyond a reasonable
doubt of the defendant's guilt.
14 At one point in his judgment the Justice of the Peace concludes the Appellant may have been
"forgetful" or "irresponsible" in neglecting to respond to a notice or notice(s) of suspension that
were likely to have been brought to his attention prior to the March 30, 2007 incident.
15 Unless these acts of neglect amounted to an intentional disregard of such notices or were
found to constitute wilful blindness it is difficult to rationalize the apparent disbelief of the
Appellant's trial testimony.
16 Secondly, the filing of the Appellant's driving record abstract as part of the Crown's case was
highly prejudicial to the Appellant's fair trial interests and should not have been permitted.
17 The Crown proffered this document in order to purportedly prove the Appellant had been
subject to two previous motor vehicle stops during which he had allegedly received notice of the
fact his licence was under suspension. No direct evidence was offered to establish service of such
notices. No witnesses were called and certificates of conviction or official court transcripts of the
trial proceedings relating to those earlier incidents were not tendered.
18 This document cannot serve as proof of the earlier enforcement actions and it's admission,
even with the consent of the defendant's trial counsel, does not change that fact.
19 While the appellant may well have chosen to testify in his own defence the improper
admission of his Highway Traffic Act driving record left him with little alternative.
DISPOSITION
20 The appellant seeks an acquittal as a consequence of the noted legal deficiencies at his trial.
Reliance is placed on the case of R. v. Bellamo, [1995] O.J. No. 313, a decision of Justice
Fairgrieve of the Ontario Court of Justice, a decision which I adopt.
21 In that case Justice Fairgrieve concluded the Justice of the Peace had erred in law at trial by
concluding the Appellant had the burden of establishing his defence of lack of knowledge of the
suspension of his driver's licence on a balance of probabilities.
22 The proper test was whether the defence had left the Court in a state of reasonable doubt as to
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5. whether the Appellant was aware of the suspension.
23 Mr. Lupo's defence at trial was predicated on his purported lack of knowledge of the fact his
licence was under suspension as of at March 30, 2007.
24 In establishing proof of this offence the Crown is entitled to rely on the statutory presumption
referenced in Section 52(1) of the Highway Traffic Act, R.S.O. 1990 c. 148 (as amended). That
section provides as follows:
"52(1) Service of Notice of Licence Suspension. Where a person's driver's
licence is suspended, notice of the suspension is sufficiently given if delivered
personally or,
(a) in the case of a suspension under Section 41 or 42, sent by registered mail
addressed to the person to whom the licence was issued at the latest current
address of the person appearing on the records of the Ministry;
(b) in the case of all other suspensions, sent by mail addressed to the person to whom
the licence was issued at the latest current address of the person appearing on the
records of the ministry.
25 Section 52(2) deems service by either ordinary or registered mail to have been received on the
7th day after mailing unless the person to whom notice was sent establishes that he or she did not
receive the notice while acting in good faith through absence, accident, illness or other cause
beyond her control.
26 As the trier of facts reasons seem to suggest a rejection of the Appellant's trial testimony
regarding his assertion that he did not receive the notice of suspension that was mailed to his home
it does not inevitably follow that a finding of not guilty would result.
27 In my opinion, a trier of fact acting reasonably and according to law could reject the
Appellant's assertion that he was unaware that his licence had been suspended as of March 30,
2007.
28 As a consequence of the noted legal deficiencies at trial and the absence of clearly articulated
reasons justifying the rejection of the Appellant's assertion of a lack of knowledge of the status of
his driver's licence the appropriate disposition here, in my view, is to order a new trial.
29 Even if the Justice of the Peace had correctly assessed the credibility of the Appellant within
the context of the entirety of the trial record his erroneous reliance on his own experience in
assessing the similarity of two samples of the appellant's handwriting and the admissibility and
apparent acceptance of the Appellant's driving record abstract in substantiation of proof of the
Appellant's knowledge of the fact his driver's licence had been suspended were errors that would in
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6. themselves warrant the granting of a new trial.
CONCLUSION
30 For these reasons the appeal is allowed. The conviction is set aside and a new trial is ordered.
qp/s/qlala/qlcnt/qlaxw
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