DATE: 20050616

DOCKET: C41594

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MIKLOS POPOVICS (Applicant/Appellant)

BEFORE:

SHARPE, JURIANSZ and ROULEAU JJ.A.

COUNSEL:

Sam Scratch

for the appellant

T. Yuen

for the respondent

HEARD & RELEASED ORALLY:

June 8, 2005

On appeal from the convictions and sentence imposed by Justice Nancy Mossip of the Superior Court of Justice dated June 3, 2003.

E N D O R S E M E N T

[1] The appellant was convicted by a jury of dangerous driving and failing to remain at the scene of the accident. He appeals his conviction and he seeks leave to appeal his sentence of five and a half years custody, less twenty-two months credit for pre-trial custody, imposed for the convictions already mentioned and for three counts of driving while disqualified and one breach of probation to which he pleaded guilty.

[2] We see no merit in the conviction appeal. We do not agree that the trial judge failed to give a balanced charge. In particular, we do not agree that the trial judge erred in instructing the jury about the demonstration video introduced by the defence. The video was based upon a scenario that did not correspond to the situation that existed at the point where Sgt. Dryden claimed he saw the appellant. The trial judge was entitled to point that out to the jury.

[3] In our view, she put the evidence at its highest from the defence perspective when she told the jury: “That evidence demonstrated the impossibility of being able to identify anyone in a vehicle parallel to the Officer’s vehicle in the lighting available on the Third Line at night”. This did not undermine or undercut the value of the evidence to the defence. Nor do we agree that it would not have been clear to the jury that it was open to them to find that this evidence raised a reasonable doubt as to the identity of the driver.

[4] The appellant submits that the trial judge erred in failing to instruct the jury explicitly that it should acquit if it was unable to decide whether the driver was Sinclair or the appellant. We disagree. In the context of this case, it would have been obvious to the jury that that was the issue and that they had to be satisfied beyond a reasonable doubt that the appellant was the driver.

[5] With respect to the sentence appeal, the trial judge imposed the following sentence: three years for dangerous driving, two years on each of three counts of driving while disqualified, concurrent but consecutive to the dangerous driving, six months consecutive for failing to remain and six months concurrent for breach of probation.

[6] In our view, the driving while disqualified and failing to remain sentences were properly made consecutive. In view of the appellant’s very serious record, which includes some seventy-seven prior convictions, including a long list of serious driving offences, two life-time driving prohibitions and several prior convictions for driving while disqualified and many other offences demonstrating a complete disregard for court orders, we see no basis to interfere with this admittedly lengthy sentence of five and a half years.

[7] We agree with the trial judge that the paramount principles in this case were denunciation of the appellant’s conduct, general deterrence and the need to separate the appellant from society for societal protection.

[8] Accordingly, the conviction appeal is dismissed. We grant leave to appeal sentence but dismiss the sentence appeal.

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”

“Paul S. Rouleau J.A.”