Lindsey Morillo made mistakes while representing himself, such as failing to deny he was speeding. But the errors from the bench were more consequential

Among the many things that went amusingly wrong in the long-running failed prosecution of a speeding ticket issued to Lindsey Morillo was that the accused, a Toronto accountant, made a terrible mistake when he testified at his second trial.

He failed to deny it.

Distroscale

Of all the errors ever made in court by self-represented litigants — who have fools for clients, according to the self-congratulatory old lawyer’s joke — this was surely one of the most devastating.

But it was not the only mistake in the many proceedings, nor even the worst.

A new ruling of the Ontario Court of Appeal shows that the judge and justice of the peace who presided over his retrial and second appeal also made errors in applying the law, which, unlike Morillo, they are expected to know.

So despite his inexpert litigating, Morillo appears to have come out on top. No less an authority than the Court of Appeal for Ontario has now quietly urged prosecutors to let this one speeding ticket slide.

Story continues below This advertisement has not loaded yet, but your article continues below.

The prosecutor might consider whether the interests of justice are served by subjecting the appellant to a third trial

“The appeal is allowed, the conviction quashed, and a new trial ordered,” Justice David Watt wrote for the three-judge panel in a Sept. 11 decision. “In the circumstances, the prosecutor might consider whether the interests of justice are served by subjecting the appellant to a third trial on a speeding ticket.”

Reached Wednesday, Morillo declined to be interviewed until the case was formally closed. He said he has not had any formal notification since the ruling, but he expects the case is over. It has been more than four years since he was ticketed based on an officer’s radar reading.

The effect of Morillo’s failure to deny under oath what he was accused of doing was not obvious until it came time to argue whether the charge of driving at 107km/h in a 70 zone had been proved. Arguing that it had not, Morillo claimed he had looked at his speedometer that day on Highway 2 near Clarington, Ont. This novel claim caused the justice of the peace to interrupt.

The trouble was that you cannot introduce new evidence during submissions. This was a brand new claim that went to the heart of the case. So the justice asked whether Morillo had ever made this claim of consulting his speedometer in his own testimony.

“Not in so many words,” he acknowledged.

It was not the only mistake. For example, Morillo ran afoul of the foundational rule of evidence known as Browne v. Dunn, according to which you have to put a discrepancy to a witness if you intend to use it in argument. You cannot simply spring it on the court. Morillo also required frequent assistance from the trial justice, verging on coaching, on how to properly phrase questions to the witness officer.

Story continues below This advertisement has not loaded yet, but your article continues below.

“This is the last time I’m going to phrase your questions for you because you should be catching on by now,” the trial justice said.

But the errors from the bench were more consequential than Morillo’s.

One key problem was that the trial justice wrongly turned the competing positions of Morillo and the officer into a credibility contest, by deciding whether she preferred the version of the Crown or Morillo, when what she should have done is consider only whether the charge had been proven.

Another was that Morillo botched his attempt to highlight inconsistencies in the officer’s testimony from the first trial, which could impeach the officer’s credibility. But he did not have transcripts, and while the trial justice was adamant this was a brand new trial and the old one was not being reheard, the trial justice also suggested ways Morillo could ask about testimony from the previous trial.

The effect of this, the Court of Appeal decided, was to unfairly constrain Morillo in his right to cross-examine the officer.

The appeal judge failed to recognize this, and added the additional irrelevant observation that Morillo already had “two kicks at the can” and thus perhaps did not deserve a third trial on a matter that, but for his legal inexperience, would have already been resolved on the merits.

These two problems were enough to void his conviction, with the Crown’s agreement. At the Court of Appeal, an amicus curiae, or friend of the court, was appointed to guide the court on Morillo’s interests, without actually representing him.