R v Brum
[2000] O.J. No. 5207
R. v. Brum
[2000] O.J. No. 5207
Ontario Court of Justice — Libman J. | December 14, 2000
Background
Kevin Brum was charged with speeding 122 km/h in a 70 km/h zone — a significant violation that carried 6 demerit points. At trial, he was represented by agent J. Alessandro. During the proceedings, Brum requested an adjournment to call a passenger as a witness to testify about the actual speed, but this was denied. The police officer testified about using a laser unit to clock Brum's speed, explaining that he tested the device at the beginning of his shift according to manufacturer specifications.
Here's where it gets interesting: when given the opportunity to cross-examine the officer, Alessandro declined, stating 'No questions for the officer.' He also called no defence evidence. Brum was convicted and decided to appeal. At the appeal hearing, Alessandro tried to negotiate a plea bargain to reduce the speed slightly and lower the demerit points from 6 to 4.
Issues
- Whether the trial court erred in denying the adjournment request
- Whether there were problems with the laser evidence that weren't properly explored
- Whether the defence agent misled the appeal court about what happened at trial
The Misleading Representation
Alessandro argued on appeal that the officer's laser evidence was flawed because he only tested the device before obtaining the reading, not after. He claimed he had questioned the officer about this testing procedure twice during cross-examination. The problem? The transcript clearly showed Alessandro had asked zero questions during cross-examination. Judge Libman caught this immediately, pointing to the exact page where it showed 'MR. ALESSANDRO: No questions for the officer.'
When confronted, Alessandro kept insisting he had asked the questions, even pointing to specific pages in the transcript. But those questions were asked by the prosecutor during examination-in-chief, not by Alessandro during cross-examination. The judge repeatedly asked Alessandro to show where he had asked even a single question, and Alessandro couldn't do it because he hadn't asked any.
The Court's Scathing Response
Judge Libman was not amused. He noted that Alessandro had made a strategic decision at trial not to contest the evidence — there's nothing wrong with that. But coming to an appeal court and falsely claiming to have cross-examined the officer when the transcript proves otherwise? That's 'attempting to mislead the Court' and 'disreputable.'
The judge delivered a harsh lecture about agents who act unprofessionally, referencing a Court of Appeal comment about agents 'who, with the same degree of training or lack of training, could equally sell t-shirts or hot dogs on the street corner.' He called misleading an appeal court 'disgusting' and dismissed the appeal.
Key Takeaway
Never misrepresent what happened at trial when arguing an appeal — the transcript will expose you every time.
If you're self-represented or hiring an agent, understand that choosing not to cross-examine at trial is a legitimate strategy, but you can't later claim you raised issues that you didn't actually raise. Courts have zero tolerance for attempts to mislead them about the factual record.