Lindsey Morillo made mistakes while representing himself, such as failing to deny he was speeding. But the errors from the bench were more consequential
Lindsey Morillo made mistakes while representing himself, such as failing to deny he was speeding. But the errors from the bench were more consequential
Morillo claimed he had looked at his speedometer that day. The trouble was that you cannot introduce new evidence during submissions.
Published on: September 26, 2019
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.
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.
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.
“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.