Ontario Court of Justice Provincial Offences Court (Toronto West Region) Regina. Anton Harizanov. Before. His Worship P. Kowarsky Justice of the Peace

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1 Citation: R. v. Harizanov, 2008 ONCJ 690 Ontario Court of Justice Provincial Offences Court (Toronto West Region) Regina v Anton Harizanov Before His Worship P. Kowarsky Justice of the Peace Charge: Careless Driving Highway Traffic Act, Section 130 REASONS FOR JUDGMENT For the Prosecution: Ms. A. Cahill For the Defendant: Himself Trial: December 11, 2008 Judgment: December 11,

2 R. v. Anton Harizanov A. INTRODUCTION 1. On December 11, 2008 I convicted the defendant of Careless Driving under section 130 of the Highway Traffic Act. These are the Reasons for my Judgment which I delivered orally at the conclusion of the trial. 2. The defendant is a lawyer who represented himself in these proceedings. B. HISTORY 3. On June 4, 2007 the defendant was served with an Offence Notice under Part I of the Provincial Offences Act, charging him with Careless Driving contrary to section 130 of the Highway Traffic Act. 4. The Certificate of Offence, which is a carbon copy of the Offence Notice, indicates that the offence is alleged to have been committed on June 3, 2007, the day prior to the service of the Offence Notice. 5. The Notice of Intention to Appear which was signed and filed by the defendant is dated June 3, 2007, the day prior to the service of the Offence Notice. It is not clear from the court stamp exactly on what date in June 2007 the Notice of Intention to Appear was filed in court, but since I have heard nothing to the contrary, I accept that it was filed within the prescribed period of 15 days. 6. On August 8, 2007 the court issued a Notice of Trial and mailed it to the defendant at the address which he provided in his Notice of Intention to Appear. The Notice indicated that the matter was set down for trial on March 11, On March 11, 2008 the defendant failed to appear in court. He was deemed not to dispute the charge, convicted and sentenced to pay the set fine of $ On March 17, 2008 the defendant applied for a Reopening of the conviction on the grounds that he had not received the Notice of Trial. The court granted his request, and on the same day, handed to him a new Notice of Trial for May 14, The court record, as endorsed on the back of the Certificate of Offence, indicates that on May 14, 2008 the matter was adjourned at the request of the defendant to September 17, 2008, and that complete disclosure provided today. 10. On September 17, 2008, although the court endorsement on the Certificate of Offence does not indicate at whose request, the matter was again adjourned to December 11, 2008; the entire tier was blocked off for the trial, and the matter was marked peremptory on the defendant. C. THE TRIAL PROCEEDINGS 11. Before entering a plea, the defendant made a Motion asking for an Order as follows: 1. Abridging time for filing/service of Notice of Motion; 2. Relief under Section 24 (1) of the Charter of Rights and Freedoms on the grounds of Sections 7, 11 (b), 11 (d); 2

3 3. In the alternative, adjournment of the matter and, (a) an order for production of disclosure required to make a full answer and defence to the charge; (b) removal of the prosecution team at 2700 Eglinton Avenue West and traverse/transfer of the matter to prosecution by the Attorney General Criminal Division, as allowed by the MOU between the province and the city, or alternatively, traverse/transfer of the matter to Old City Hall (c) an order for an independent investigation of police and prosecutorial conduct in the matter; (d) an order compelling the appearance of City of Toronto prosecutors Ms. Mima Frederick, Ms. Ilana Szenes, Mr. Michael Lee and Mr. George Barlett. 12. The Notice of Motion is dated December 4, 2008, and signed by the defendant. Although the Notice of Motion refers to an attached supporting affidavit of the defendant, there was no affidavit before the court. 13. Attached to the Notice of Motion was a document headed: Form 4, Courts of Justice Act, Notice of Constitutional Question. The Notice is not signed by the defendant or by anyone else. 14. In addition, there were two other documents headed Fax Call Reports signed and filed in this court by the defendant on December 5, 2008, indicating that a fax attaching a Constitutional Challenge was sent to Mr. George Barlett, Director of Prosecutions, City of Toronto. 15. The second Fax Call Report is dated November 29, 2008, purporting to send a copy of Form 4 via fax, but there is no indication as to whom the fax was sent. D. PROCEEDINGS ON THE MOTION 16. The prosecutor argued that the Notice of Constitutional Question was not served properly nor within the time limits prescribed by section 109 (2.2) of the Courts of Justice Act, which provides as follows: The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise. 17. In R. v. Mitchell (2000), I M.V.R. (4 th ) 259 (O.C.J.) the court held that failure to give notice according to section 109 of the courts of Justice Act is fatal. 18. The Notice of Constitutional Question was not signed. There is no documentary evidence that it was served on the Attorney General of Canada at all, and even if it was sent, it was not served within the prescribed period of 15 days. 19. In such circumstances I found no reason to make any rulings on the validity of the specific requests in the order sought. Accordingly, I denied both the defendant s constitutional challenge and the alternative relief sought. 3

4 20. The defendant then argued that there were numerous disclosure materials with which he had not been provided, even though the court records show that disclosure was provided in full to the defendant at his court appearance on September 17, I requested that the defendant provide me with details of the items of disclosure which he believed were still missing. After hearing what he was still requesting, I ruled that the disclosure items to which he referred were not required to be disclosed because they were either irrelevant or not required to enable him to make full answer and defence to the charge. However, I informed the defendant that in the event that during the course of the trial I found that the prosecution s disclosure obligations had not been properly fulfilled, I would make an appropriate order at that time. 22. I informed the defendant that the Provincial Offences Act, pursuant to which the charge was being prosecuted, is a procedural mechanism promulgated by the Government of Ontario in order to deal with regulatory offences in an inexpensive and expeditious manner. Provincial Offences Courts are required to consider substance and not alleged procedural irregularities in bringing matters to finality. It is well established law that the overall philosophy of the Provincial Offences Act is to ensure that technical objections do not impede the reaching of a verdict on the merits of each case. 23. Having made such rulings the court ordered that the trial proceed forthwith. Yet again, the defendant argued that the Certificate of Offence was defective in that on the Certificate of Offence there had previously been a sticker which was no longer there. I examined the Certificate and found that it was complete and regular as required. 24. The defendant pleaded not guilty to the charge. E. THE PROSECUTION S EVIDENCE 25. The prosecutor called Detective S. Moore, whose testimony, in summary, is as follows: a) On Sunday June 3, 2007 at approximately 3.20 pm. he was off duty, driving his personal motor vehicle southbound on the Don Valley Parkway in Toronto at about 90 km. per hour, which is the posted speed limit. The traffic was moderate to heavy. b) After entering the Don Valley Parkway from Don Mills Road, he changed into the lane immediately to the left of the on-ramp. c) He then observed a black Volkswagen motor vehicle being driven at a high rate of speed behind his vehicle, partially on the shoulder. The Volkswagen moved into the centre lane, passed the officer s vehicle at a high rate of speed, and then swerved back into the left lane at about 120 4

5 km. per hour, just missing the officer s vehicle by about 1 foot, causing the officer to swerve in order to avoid a collision. d) The officer told the court that the driver of the Volkswagen then made a finger gesture at me which he was able to see clearly as it was travelling right in front of the officer. Suddenly the driver of the Volkswagen slammed on his brakes causing the officer to do the same to avoid a collision at which time he was almost hit by another vehicle being driven just behind the officer s. e) Officer Moore then pulled out his Police Officer Identification Card and held it towards the driver of the Volkswagen which was still travelling right in front of him. The driver moved into the centre lane and slowed down to about 90 km. per hour. The officer drove alongside the Volkswagen and was able to make eye contact with the driver. f) The officer motioned to the driver to pull over, which he did not do. He kept driving and made no attempt to stop. From his earlier viewpoint the officer was able to obtain the licence plate number of the Volkswagen, and to identify the driver, the sole occupant, as a male in his mid to late thirties with short brown hair and a beard. He called Police Despatch to request that a police vehicle be sent to apprehend the driver. g) Officer Moore continued to follow the Volkswagen on the Don Valley Parkway to a point where the driver appeared to be turning off at the Richmond Street Exit. Suddenly, however, the Volkswagen swerved Eastbound across three lanes of traffic, and turned into Lakeshore Blvd. At that time the officer decided to abandon the chase for safety reasons. h) The following day, on June 4, 2008, the officer attended his office at 51 Division, and ascertained that in fact a police officer had not been despatched to endeavour to apprehend the driver of the Volkswagen the day before. The officer made official enquiries, and obtained the name and address of the owner of the vehicle concerned. i) On June 4, 2008 the officer went to the address which he had obtained for the owner of the vehicle. He located the defendant, who provided the officer with the requisite documentation. From the digital photograph on the Ontario Driver s Licence which was provided, the officer was able to identify the defendant as the person who had been driving the Volkswagen on the previous day, and pointed him out in court. j) Officer Moore then served the defendant with an Offence Notice pursuant to the provisions of Part I of the Provincial Offences Act, charging him with Careless Driving under section 130 of the Highway Traffic Act. k) The defendant cross examined officer Moore, and the prosecution closed its case. 5

6 F. THE EVIDENCE FOR THE DEFENDANT 26. The court invited the defendant to testify, but the defendant declined, stating that his various motions had been denied, and he had not received sufficient disclosure to enable him to make full answer and defence to the charge. The court then heard submissions from both the prosecutor and the defendant. G. ANALYSIS 27. Section 130 of the Highway Traffic Act provides as follows: Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less that $200 and not more that $1000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years. 28. Our courts have held that the standard required of drivers in the context of Section 130 of the Highway Traffic Act is an objective one which is constantly shifting, depending on the road, visibility, weather and traffic conditions that exist at the time or that may reasonably be expected, as well as any other conditions that ordinary drivers would take into consideration. 29. In R. v. Weedon (1987), 7 M.V.R. (2d)21 (B.C.Co.Ct) the Court held that in Careless Driving cases the actus reus is improper driving judged on an objective basis. The lack of due care and attention can then be inferred from the objective indicator. 30. In R. v. Globocki [1991], O.J. No. 214 (O.C.J.), the Court held that the Prosecution is required to show sufficient departure from the standard of a prudent and reasonable driver to render the driving deserving of punishment, and that in each case it is necessary to consider whether and to what extent the defendant departed from the standard appropriate to the factual circumstances facing the defendant. 31. I have no evidence to contradict the evidence of Officer Moore, who testified in a clear and forthright manner that the defendant changed lanes at high speeds, swerved in front of his vehicle on a busy highway almost causing a collision, slammed on his brakes for no apparent reason while driving directly in front of the officer s vehicle, almost causing another collision, and gave the finger to the officer, which I infer was a sign of road rage on the part of the defendant for reasons unclear to the court. While being followed by the officer who had motioned 6

7 to him to pull over, the defendant swerved across three lanes of traffic in order to escape from the officer. H. DISPOSITION 32. From Officer Moore s evidence, which remains unchallenged, I find the defendant s driving to have been a marked departure from the standard required of a prudent and reasonable driver, and that such driving constitutes careless driving within the meaning of section 130 of the Highway Traffic Act, and is deserving of punishment. 33. I am therefore satisfied that the Prosecution has proven its case beyond a reasonable doubt. Consequently, there will be a finding of guilty and a conviction will be registered. P. Kowarsky J.P. Ontario Court of Justice December 12,