R v Leung

R. v. Leung

2015 ONCJ 413
Ontario Court of Justice — Justice David S. Rose | July 23, 2015

Background

Chung-Wai Wilson Leung was charged with failing to yield to traffic on a highway under section 136(1)(b) of the Highway Traffic Act. The incident occurred on East Beaver Creek Road, where P.C. Goodall witnessed Leung pull out from East Pearce in front of him, forcing the officer to slow down suddenly to avoid a collision. Snow banks in the area were high enough to obstruct the view from East Pearce to East Beaver Creek.

Leung was represented by agent Mr. Andrews and was not personally present at trial. During cross-examination of the officer, Andrews discovered that the officer's testimony included details not contained in his disclosure notes. Andrews requested an adjournment to notify his client of this new evidence and potentially call him as a witness.

Issues

1. Did Justice of the Peace Zito err in refusing the adjournment request?
2. What factors should be considered when evaluating adjournment applications?

The Adjournment Denial

Justice of the Peace Zito denied the adjournment twice, giving two problematic reasons. First, he argued that Mr. Andrews was an 'expert agent' who should have anticipated that the officer's testimony might expand beyond his notes. Second, he stated that the accused had a 'duty to be in court' and wasn't excused for any reason other than agent representation.

Justice Rose found both reasons legally flawed. There is no recognized category of 'expert agent' in Ontario courts, and section 50 of the Provincial Offences Act explicitly allows defendants to be represented by agents without being personally present. The Justice of the Peace failed to consider crucial factors: whether the adjournment was made in good faith, the impact of denying it (guaranteed conviction on a strict liability offence), whether the Crown would be prejudiced (their case was already closed), and whether the defendant needed to respond to unexpected evidence for full answer and defence under section 46(2) of the POA.

Key Takeaway

Courts must fairly consider adjournment requests and cannot deny them based on non-existent legal duties or assumptions about agent expertise.

When new evidence emerges during trial that wasn't in disclosure, defendants have the right to seek an adjournment to respond properly. Justice Rose ordered a new trial, recognizing that denying the adjournment prevented Leung from mounting any defence to a strict liability charge.