York (Regional Municipality) v. Winlow

York (Regional Municipality) v. Winlow

2009 ONCA 643
Court of Appeal for Ontario — Laskin, Gillese and Rouleau JJ.A. | September 10, 2009

Background

Robert Winlow was caught speeding 30 km/h over the limit on Highway 400 in York Region. The officer used his discretion and wrote the ticket for only 15 km/h over — a common practice that gives drivers a "break" and encourages them to pay the set fine rather than go to trial. The ticket carried a $52.50 total fine. Winlow chose not to pay and requested a trial instead.

At trial, the prosecutor told Winlow that the officer would testify to the actual speed of 30 km/h over, and that they would seek to amend the certificate upward to match the evidence. This would increase the fine from $45 to $90 under the Highway Traffic Act's sliding scale. The prosecutor offered Winlow an adjournment to get legal advice, but he refused and wanted to proceed. The Justice of the Peace refused to allow the amendment, and her decision was upheld on appeal to the Ontario Court of Justice.

Issues

1. Is the specific rate of speed an essential element of a speeding offence, or just relevant to penalty?
2. Do courts have discretion to reduce the fines set out in s. 128(14) of the Highway Traffic Act?
3. Is the practice of "amending up" speeding charges permissible under s. 34 of the Provincial Offences Act?

The "Amending Up" Practice

The Court of Appeal ruled that there's nothing inherently unfair about the common municipal practice of charging at a reduced speed, then seeking to amend upward if the driver goes to trial. The court found this serves two legitimate purposes: giving drivers an incentive to settle out of court (efficiency), and ensuring those who go to trial face consequences matching their actual speed (deterrence).

However, courts must consider the four mandatory factors in s. 34(4) of the POA before granting any amendment: the evidence at trial, circumstances of the case, whether the defendant is misled or prejudiced, and whether the amendment would cause injustice. The court emphasized that "being misled or prejudiced" doesn't mean facing stiffer consequences — it means the defendant's ability to meet the charge would be adversely affected.

The court also clarified that fines under s. 128(14) of the HTA are mandatory calculations with no judicial discretion to reduce them. The phrase "is liable to" creates a fixed penalty regime, not a maximum.

Procedural Fairness Requirements

While the practice is permissible, the court stressed that special care must be taken with self-represented defendants. Prosecutors and justices must ensure defendants understand any proposed amendment, its consequences, and have a reasonable opportunity to make submissions against it. Ideally, notice should be given before trial, and defendants should generally be offered adjournments to seek legal advice.

Key Takeaway

Police can give you a "break" on the ticket, but prosecutors can ask to amend it up to the real speed if you go to trial — and that's legally permissible.

However, you have the right to understand any amendment, make arguments against it, and generally should be offered an adjournment to get legal advice. The court must consider whether granting the amendment would be unfair in your specific circumstances.