minicounsel

Ontario Court of Justice Provincial Offences Court

Her Majesty the Queen v. Zlatan Djurovic

Reasons for Judgment

As given by His Worship Justice of the Peace P. Bonas on June 5, 2013 at Milton, Ontario

Section 175(11) – Highway Traffic Act Fail to stop for school bus

I. Lagden – Municipal Prosecutor
Zlatan Djurovic – In Person

Wednesday, June 5, 2013

BONAS, J.P. (OCJ) (Orally):

The Charge

1The defendant, Mr. Djurovic, is charged on certificate of offence 6432557A with the offence of fail to stop for school bus, contrary to s. 175(11) of the Highway Traffic Act on the 26th of January 2012.

2The section reads that: "Every driver or streetcar operator when meeting on a highway other than a highway with a median strip, a stopped school bus that has its overhead red signal lights flashing shall stop before reaching the bus and shall not proceed until the bus moves or the overhead red signal lights have stopped flashing."

Procedural Background

3In proceedings that almost ran off the rails, the defendant brought a motion requesting that the Court recuse itself, a motion which was dealt with on a prior date. The record would show clearly reasons of the Court for that particular decision, which was dismissed.

4As is mandated, there was an attempt by the Court to assist Mr. Djurovic who at the time was an unrepresented defendant and who in fact retained a paralegal to represent him at the hearing of the motion that he brought for the Court to recuse itself.

5That resulted in protracted proceedings for a number of reasons:

An attempt by the defendant to utilize a Google map.
The defendant's attempting to question the officer as to whether he was parked on private property. Ultimately, the Court ruled that that was not relevant.
Requesting the officer's opinion as to what the officer thought about where it would have been a safe place to stop pursuant to s. 175(6) of the Highway Traffic Act and again, requesting that the officer give him an opinion as to about where he would stop if he were the driver of the bus.
Attempts to impeach the actions of the school bus driver.
The defendant speaking over the officer's responses as well as over the Court's directions.
Making statements during cross-examination and asking the witness speculative questions.
Interrupting the Court while the Court was speaking.
Asking questions without laying a foundation or a basis for the questions.

6As the Court indicated to the defendant that questions should not invite argument nor suggest that if the witnesses' evidence be believed, another witness must be lying. So that essentially is an explanation as to why these proceedings took this long to complete.

Prosecution's Case

7The prosecution's case was based on Constable McInnis' testimony and observations. Constable McInnis gave evidence that on the 26th of January 2012, he was responding to a specific complaint from residents in the area of Derry Road and Sixth Line. These complaints were sent to his unit, the District Response Unit, pertaining to drivers failing to stop for the school bus in their community.

8He testified that he positioned himself approximately 350 meters east of Sixth Line on Derry Road and that he was facing northbound, 10 feet off the roadway to make these observations. Further that he was approximately 100 meters east of the specific drop-off point of the school bus and he situated himself on the south side of Derry Road.

9The constable then provided testimony as to the layout of the area. That Derry Road in that area has two lanes eastbound and two lanes westbound and that there was no median until close to Sixth Line.

10Further that at about 3:49 p.m. on that date, he observed a larger type school bus painted chrome yellow heading eastbound on Derry Road in lane number two and that shortly after it passed Sixth Line, he saw that its overhead flashing lights had been activated. The school bus stopped and Constable McInnis testified that its stop arm was activated.

11Further, that he looked to his right and saw a lone motor vehicle westbound traveling at approximately 80 kilometers per hour and that the vehicle was continuing without stopping for the school bus and that it went past the stop arm and the flashing lights without stopping for the school bus.

12Further, the officer testified that a child was at the time exiting the school bus and that this motor vehicle failed to stop for the school bus.

13That cars behind the lone motor vehicle were not under consideration at the time since they were some 300 to 400 meters to the rear of the lone motor vehicle which he saw proceeding westbound.

14Constable McInnis testified that he activated his emergency lights on his police cruiser and pursued this vehicle and caught up to the target motor vehicle, a silver four-door Mercedes Benz with dealer plates, 682 DNR, just west of Sixth Line. He identified the driver who provided a valid Ontario driver's licence to him as the defendant, Mr. Zlatan Djurovic.

Cross-Examination of Constable McInnis

15In cross-examination, Constable McInnis testified at length in responding to questions from the defendant. He testified that his estimation was based on his experience and training and that he couldn't track everything on a laser for a school bus violation. That he had been waiting there because of the complaint which indicated that at 3:50 p.m. each day, offences were being committed.

16Further, he testified that he was on a level, he was not back from the driveway, that he noticed the school bus just as it passed Sixth Line and as it activated its overhead lights.

17Likewise in response to questions placed by the defendant in cross-examination, Constable McInnis went on to testify that upon being informed of the allegation of failing to stop for the school bus, the defendant asked the officer to read what the defendant said on being told of the offence.

18At this stage, it became apparent to the defendant and the prosecutor and later revealed to the Court that P/C McInnis was referring to notes which did not form part of the disclosure provided to the defendant. The issue was discussed. The Court learnt that the notes not disclosed were three short paragraphs covering testimony already given and which were read to the defendant.

19This issue ultimately led to the filing of a motion for the Court to declare a mistrial and for this Court to recuse itself as previously stated. That motion was heard on Friday, May the 10th 2013 and dismissed with reasons. That motion and its dismissal was to a large extent based on the premise contained in the case of The City of Pickering v. Vallance, a decision of Justice Bellefontaine which readdressed the issue of the right of the Court to control its process and to disallow repetitive or irrelevant questions.

20Upon the resumption of cross-examination of P/C McInnis by Mr. Djurovic, the officer testified that he was not back of the driveway. That he had noticed the school bus just as it passed Sixth Line on its eastbound route and as it activated its overhead lights. The officer also reiterated that he was acting on a specific complaint that at 3:50 p.m. each day, motorists were committing offences by not stopping for the school bus. He also said that his approximations on distance was based on his experience and training. Further, that it was untenable for him to use a laser device to track a school bus violation.

21In re-examination, the officer testified that he had returned to the scene and measured the distance from the location where he was parked to the intersection and it measured 379 meters on his instrument. The Court takes that into account as per the decision in R. v. Tomlinson, a 2010 decision of the Ontario Court of Appeal in which His Honour Justice Blair indicated that law is settled on the presumption that measuring instruments are accurate.

Defendant's Evidence

22The prosecution closed its case and Mr. Djurovic gave evidence on his own behalf and testified that he was indeed westbound on Derry Road on January the 26th 2012. However, before that, he was traveling on Trafalgar Road near Baseline Road when he saw a car in a ditch as well as a police officer and a tow truck assisting those individuals.

23Mr. Djurovic testified that because of this, he figured that there was black ice on the road and that he was jamming on his brake and his car skidded. So he figured that there was black ice and he continued to do this to substantiate his beliefs.

24He testified that there were two cars in front of him. His speed was 70 kilometers per hour. The speed limit is 80 kilometers per hour in that area and that there were subzero temperatures. So he lowered his speed approximately 250 meters from the bridge at Sixth line.

25He said in his own words, that he noticed a yellow car which is a school bus approaching. It stopped approximately 200 meters from the intersection and just before the stop, Mr. Djurovic testified that he noticed the overhead lights. He testified that at that time when the bus stopped he was just 20 to 30 meters from it.

26Further, Mr. Djurovic testified that he was stopped approximately one kilometer after the green lights at the intersection by Constable McInnis.

27Mr. Djurovic explained to Constable McInnis that he did not see the overhead flashing lights on the bus before the bus had stopped. That Constable McInnis did not describe the school bus sufficiently.

Cross-Examination of Defendant

28The defendant was then cross-examined by the prosecutor, Mr. Lagden, and Mr. Djurovic again continued along the path of making statements and not giving the appropriate responses to specific questions which were placed to him.

29Mr. Djurovic went on as the Court observed to make comments with respect to the weather, his particular observations, his opinions to Constable McInnis's testimony and its sufficiency for which the Court again attempted to make it clear to Mr. Djurovic that some of those comments should be left to submissions later on in the proceedings. There were no witnesses called by Mr. Djurovic and he closed his case.

Court's Analysis of Evidence

30In analyzing the evidence, the Court found that the cross-examination of the investigating officer had little if any effect in shaking his testimony that he was there for a specific purpose. He identified the school bus. Saw it stopped with its flashing lights activated and stop arm out and a child was exiting the bus when the defendant's vehicle went past the stopped school bus.

31Now this Court is of the opinion that it need not describe every consideration leading to a find of credibility. Further that I need not allude to every frailty in the evidence or allude to every principle of law, but that the Court can draw reasonable inferences. And simply because this Court chooses not to address every single assertion or speculative responses from the defendant, does not mean that the Court did not turn its mind to each and every issue.

32However, I find that neither singularly or cumulatively were these assertions and speculative responses enough in the Court's view to raise a reasonable doubt.

33The issues raised by the defendant and considered by the Court are not limited to the following:

a) That the officer did not describe the school bus as per s. 175 of the Highway Traffic Act. b) That the officer could not see the stop arm on the school bus. c) That the defendant was 20 to 30 meters from the bus when it stopped and that he was too close to stop. d) That there was black ice on the roadway which resulted in the defendant's inability to stop. e) That the officer could not or did not say precisely where he was. f) That the Provincial Offences ticket was harsh. g) That there was no evidence of the bus' speed. h) That the flashing lights on the school bus only were activated when the stop arm came out. i) That the stop arm on the school bus came on when the bus stopped. j) That the door of the bus was not open and a child was not getting off. k) That under s. 171(9) of the Highway Traffic Act, it states that the driver should engage the lights when about to stop. l) That the officer did not put in his notes that there were two cars in front of the defendant. m) That eyes can play tricks and that the officer was looking at the scene from a different angle.

Court's Assessment of Credibility

34The Court can reasonably infer that Constable McInnis is a trained observer and was aided in his testimony by his notes which he said were made contemporaneous to his observations. He was at the location for a specific purpose from which he had an unobstructed view and could see clearly. The officer's evidence was concise, detailed and he appeared candid and fair. His evidence was consistent and was uncompromised in cross-examination.

35The defendant, Mr. Djurovic's evidence on the other hand was unclear, confusing and illogical. His evidence amounted to unsupported speculation with no actual evidence to support his assertions. Above all, the Court found that Mr. Djurovic's evidence was self serving, to be different from what he told Constable McInnis when he was stopped and informed of the allegation. So much so that it did not enhance the reliability or credibility of his in court evidence.

Detailed Analysis of Defendant's Assertions

36I will go on now to address some of the issues raised by the defendant which I have numbered 'A' to 'M'.

(a) Description of School Bus

The bus was sufficiently identified in this Court's view. Constable McInnis testified that it was chrome yellow, large and it was a school bus. That it had its overhead flashing lights activated. It opened its door and activated its stop arm. That there were alternating flashing lights on the top of the bus and a sign on the side.

Thus, there's clearly a body of evidence which this Court is entitled to rely on. In R. v. Raposo which the defendant provided to the Court, it is easily distinguishable from the events of this matter.

On page one of R. v. Raposo, the prosecutor says in line 14, he says: "And the word 'school bus' is never given in evidence", in Raposo. In this case, Constable McInnis testified on various occasions that it was a school bus. He mentioned those words. Hence, we have one distinguishing feature right there.

On page four, line 11, the prosecutor goes on – in fact, Mr. Fournier, who was the paralegal on that occasion on behalf of the defendant, on page four again in R. v. Raposo, as he gives his account of what happened in that case to the appeal court, he says on page four from line 10: "None of that evidence is before the Court. You have a yellow large vehicle and it had red flashing lights and a stop arm."

On page five, lines 25 to 29, Mr. Fournier goes on to say: "The crux is simple, it's a technical one. When the officer's asked right out the markings on this vehicle that denotes it to be a school bus, he made no notation of any. He doesn't recall there being any." I'll come back to that.

Mr. Fournier also goes on on page six of R. v. Raposo, in lines 12 to 17 he says: "Red flashing lights aren't required. Stop arms not required but the words school bus are and do not pass when lights are flashing, that's required." He goes on to say, "And it's just a technical argument."

Well, that raises the issue of the rule in Browne and Dunn. The principle outlines that the question as to whether there were markings on the bus should be put to the witness in cross-examination rather than relying upon an equivocal answer which might benefit the defendant.

That particular issue very well could have been raised at the conclusion of the prosecutor's case in a motion for non-suit. It wasn't.

To conclude that an officer must state that he or she saw "school bus" written on the front and rear of the bus as well as "do not pass when lights flashing" to satisfy the definition of a school bus in s. 175(1)(a) and (b), would place the prosecution in a position where it would or might have to anticipate every possible defence known at law, to call evidence in anticipation thereof.

I can refer to the definition of a garage or highway in the Highway Traffic Act. The question remains, are we to put the test to the prosecution to provide every – the most minute definition of what a highway is or what a garage is or what a farm tractor is, to prove its case?

As I indicated before, there is a body of evidence from which the Court can draw upon to satisfy the issue of the proper definition of what a school bus is and that evidence which the Court can purposely rely upon.

So in effect, what the Court was saying with respect to the rule in Browne and Dunn is that, "The defendant is not entitled to rely upon the most favourable interpretation of an equivocal answer unless that favourable interpretation has been put to the witness." In this case, it was not.

(b) Visibility of Stop Arm

The assertion in submissions that the officer could not see the stop arm of the school bus is unsupported by the evidence. In addition to the officer testifying in his evidence in-chief that he saw the stop arm activated, he responded to this in cross-examination. His exact words were, "I could see the stop arm on the bus, absolutely."

That is in effect bolstered by the defendant's own statement as he commented on the reason for asking the officer in cross-examination how he would describe the road. The defendant said and I quote, "I have no problem with visibility. I know you can see the bus."

The Court hastens to add that despite this statement, it does not factor into the Court's consideration as it relates to credibility but it is one example of how illogical the defendant's evidence was.

(c) Distance from Bus

The Court found that Mr. Djurovic's evidence of being 20 to 30 meters from the bus to be self serving and to be a residual justification for his not stopping for the bus.

(d) Black Ice on Roadway

The evidence about black ice on the roadway is another unsupported assertion unsupported by any credible and admissible evidence.

(e) Officer's Location

The assertion that the officer could not say where he was precisely, that again is not supported by the evidence. The officer said exactly where he was: 350 meters from this intersection, parked on the side of the road some 10 feet from the roadway with an unobstructed view of the intersection and the progress of the school bus in an unmarked police vehicle on the south side in a driveway, approximately 350 meters east of Sixth Line facing northbound and approximately 100 meters east of the specific drop-off location for children arriving from the school bus. That he was on a level, so that is pretty precise.

(f) Bus Speed

The assertion that there was no evidence of the bus's speed; again, it's not an essential element of the allegation.

(g) Activation of Flashing Lights

The defendant claimed that the school bus's flashing lights were activated when the stop arm came out. That the Court finds to be a not believable statement or part of his testimony and it defies common sense. This Court can infer that trained bus drivers would understand their responsibilities as they relate to giving motorists notice of their intention to stop.

(h) Contradiction with Prior Statement

In addition, this assertion directly contradicts what Mr. Djurovic himself told Constable McInnis when he was stopped on January the 26th 2012.

(i) Defendant's Statement to Officer

Mr. Djurovic requested that the officer read his response; this is the defendant's response on being informed of the allegation. Constable McInnis complied with that question and the officer indicated in his testimony in cross-examination that the defendant said, I quote, "He did not see the lights on the bus" and that he was focusing, the driver was focusing on the driveway but saw the red arm. That's what the officer testified Mr. Djurovic told him when he was stopped and informed of the allegation. I repeat, Mr. Djurovic said that he did not see the lights on the bus and secondly, that he was focusing on the driveway but saw the red arm.

(j) Defendant's Statement About Distance

Mr. Djurovic also said to the officer that he was too close to stop.

(k) Bus Door and Child Exiting

Mr. Djurovic also testified when he was cross-examined by Mr. Lagden that the door on the bus was not opened and a child was not getting off. In cross-examination, Mr. Djurovic was forced to admit that he could not see if the bus door was open, since he was obviously on the other side of the bus and could not see whether or not the door on the bus was open. Mr. Djurovic also said that there was no way that the police officer could see the stop arm and no way was a child getting off the bus. Well again, Mr. Djurovic cannot see if a child is getting off the bus if he's on the other side of the bus and he couldn't see whether or not the door was open.

(l) Officer's Notes – Two Cars in Front

Mr. Djurovic also claimed that the officer did not put in his notes that there were two cars in front of the defendant. Constable McInnis clearly stated in his evidence in-chief that Mr. Djurovic's vehicle was the lone motor vehicle approaching the school bus and that there were other vehicles some 300 to 400 meters behind Mr. Djurovic's vehicle and so was not being considered at the time by the officer.

No Court can expect an officer to put something in his notes that he did not observe. The issue of matters not being in officer's notes and the claim that because it's not in the officer's notes, it didn't happen, has been addressed many times in the past in a variety of cases.

In the case of R. v. Machado, from the Superior Court of Justice, His Honour Justice Durno said, and I quote:

"While officer's notes are provided as part of disclosure, there is no law that I am aware of that an officer must record everything he or she did or saw in their notebook to comply with the crown's disclosure obligations.

While some have attempted to elevate the judgment in R. v. Zack, to a statement that if an event or observation is not in the notes that it did not occur, that is not what the judgment says. Indeed, there are numerous authorities where events or observations that are not noted have been accepted as per R. v. Thompson, and as per R. v. Bennett."

Justice Durno went on to say that he agreed with the comments of Justice Garton in paragraphs 24 and 25 of R. v. Antoniak, again from the Superior Court of Justice and I quote:

(m) Officer's Notes as Evidence

"It should be remembered that an officer's notes are not evidence but are merely a testimonial aid. Trial judges routinely tell officer's on the witness stand that they may use their notes to refresh their memory and that they must also have an independent recollection of the events.

To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer's independent recollection from the equation. The notes would become the evidence. The significance of an omission in the officer's notebook just like the significance of an inconsistency in a witness' testimony must be determined by the trier of fact on a case by case basis."

Credibility Finding and Conviction

37It is implicit in this Court's findings that I have rejected the evidence of the defendant, Mr. Djurovic. And while the defendant is entitled to the benefit of reasonable doubt respecting credibility, I find his evidence not to be credible or even capable of raising a doubt.

His evidence in my view is seriously contradicted by the other credible evidence that is the evidence of Constable McInnis.

38I find that Mr. Djurovic did in fact contravene s. 175(11) of the Highway Traffic Act. The Court has in its decision attempted to lay the basis for such a finding and while I'm mindful that the analysis in R. v. W(D) is not sacrosanct, again, I have tried to lay the basis for the Court arriving at its decision that the prosecution's evidence has been presented in such a fashion that the Court finds that it has met its burden beyond any reasonable doubt; that in fact Mr. Djurovic did commit this offence on the 26th of January 2012, accordingly a conviction is entered.

Sentencing

Yes, submissions, Mr. Lagden?

MR. LAGDEN: Requesting the Court consider the set fine of $400.00 please. There's no driving record.

THE COURT: Mr. Djurovic, do you have anything to say about the fine?

MR. DJUROVIC: Yes, Your Worship.

THE COURT: Yes, go ahead.

MR. DJUROVIC: More than respect for this Court and for our judicial system but I feel really sorry today because in my testimony and my cross-examination and facts that I present, I feel more than – that I raised reasonable doubt but more evidence to support certain things from my – not conviction right there. I cannot – I don't know how to use like legal terms but even case supposed you, Your Honour, mentioning here like it's clear and there is also cases that I mentioned two case that you are aware for sure, Your Honour, because you dealing everyday with this and seems to me that from day one, the Court – not day one but in last three session courts, completely bias....

THE COURT: What's that?

MR. DJUROVIC: Bias leading towards one decision to make me guilty and I feel that my legal rights for fair trial has been broken and for that reason I'm going to appeal this decision on higher court. That's all.

THE COURT: That's totally within your purview, sir.

MR. DJUROVIC: Yes.

THE COURT: Okay. But I have allowed you to comment on the Court's decision...

MR. DJUROVIC: Yes.

THE COURT: ...after the Court has made its decision which is not the regular process. It's certainly not appropriate or proper but I allowed you since you're unrepresented.

MR. DJUROVIC: Thank you.

THE COURT: But the Court's decision has been, as I said, founded on principle and an analysis of the evidence as I see fit. Yes, Mr. Lagden, you said the set fine, yes?

MR. LAGDEN: Please.

THE COURT: There are no prior convictions, yes?

MR. LAGDEN: No.

THE COURT: Okay. The fine is $400.00, sir, 15 days to pay?

MR. DJUROVIC: Ninety days, sir?

THE COURT: Why so long? This has gone almost a year and a half, sir. I'll give you 30 days, okay? Okay.

...WHEREUPON THIS MATTER WAS CONCLUDED

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Angee Balaisis, certify that this document is a true and accurate transcript of the recording of R. v. Zlatan Djurovic in the Ontario Court of Justice, Provincial Offences Court, held at 100 Nipissing Rd. #2, Milton, Ontario taken from Recording No. court1_milton20130605, which has been certified in Form 1.

Date: Angee Balaisis Court Reporter

Photostatic copies of this transcript are not certified and have not been paid for unless they bear the original signature of Angee Balaisis, and accordingly are in direct violation of the Ontario Regulation 587/91, Courts of Justice Act, January 1, 1990.