Court File and Parties

Court File No.: 4160907A

Ontario Court of Justice (Provincial Offence Appeals) Newmarket

Between: Her Majesty the Queen ex rel. The Regional Municipality of York, Respondent

— And —

Tasuh Mustakinovski, Appellant

Reasons on Appeal

Heard: November 22, 2013 Delivered: November 22, 2013

Counsel:

• Mr. Mark McDonnell, for the Respondent Region of York
• Ms. Sangeeta Patel, for the Appellant

KENKEL J.:

Introduction

1. Mr. Mustakinovski was convicted at trial of Speeding contrary to s. 128 of the Highway Traffic Act.

2. The Appellant alleges the following errors at trial:

   a) That the Learned Justice of the Peace erred in proceeding with the trial where the defendant was not represented by a lawyer

   b) That the Justice of the Peace erred in not informing the appellant of his right to ask for an adjournment before trial commenced

   c) That the Justice of the Peace erred by assuming that just because the appellant was provided with disclosure and a copy of the relevant caselaw by the prosecution that he would be able to fully defend himself at trial

   d) That the Justice of the Peace erred in granting the prosecutor's request to amend the speed

   e) That the Justice of the Peace erred in applying a strict liability standard to the charge of speeding

   f) That the reasons of the Justice of the Peace fail to explain why the appellant's evidence was not found to be credible

   g) That the appellant suffered significant prejudice at trial as the matter was marked peremptory and his lawyer did not attend the trial date.

3. An application was made today for an adjournment of the hearing of this appeal. That application was denied and the appeal proceeded. These reasons explain briefly why the adjournment request was refused, and then assess the evidence and submissions on the appeal.

Adjournment Application

4. Mr. Mustakinovski was given a ticket for speeding on January 28th, 2011. The trial was held on October 24, 2011, the third day set for trial. The appellant was convicted and appealed that decision to this court. The first appearance at this level was on March 5, 2012. After further adjournments it was marked peremptory to set a date for the appeal on October 22nd, 2012. Further adjournments were granted to January 2013 where it was again marked peremptory to set a date April 15th. In April another two month adjournment was granted to June when an appeal date was set for August 26th. On August 26th the appeal was adjourned and today was set as the new date for the hearing of the appeal.

5. Ms. Patel advised the court that her office received further materials from the prosecution via courier on or about October 18th, 2013. She did not attend her office thereafter to look at the materials although she was aware of them. She went on holiday in November still not having been to her office and not seeing the materials. It was only recently that she attended her office, looked at the documents and realized that she may wish to cross-examine the affiant. She applied for an adjournment of the appeal on that basis.

6. In considering the adjournment application, the court asked about the grounds for the appeal as the original notice filed did not set out any basis for an appeal. The subsequent Notice filed by Ms. Patel does set out arguable grounds for appeal. Some further inquiry was necessary as one ground appeared decisive – the alleged failure of a lawyer to attend the trial. Errors in booking occur from time to time and evidence of such an error would mean an adjournment would not be required as the prosecution confirmed that they would concede the appeal in those circumstances. The Appellant did not have any evidence to support that ground of appeal.

7. The fact that counsel chose not to review certain documents in preparation for the appeal is not a reason for an adjournment. Given the nature of the original charge, the history of the matter and the focused issues on appeal I ruled that the appeal would proceed in the afternoon session giving both counsel further time to prepare. It turned out on hearing the appeal that the Appellant did not need to cross-examine the prosecutor in any event.

Trial Without Counsel

8. Four of the grounds for appeal set out at paragraph 2 a), b), c), and g) above assert in different ways that the Justice of the Peace erred in proceeding with the trial as the appellant was expecting to be represented by a lawyer who did not attend.

9. The only basis for those related submissions is found in a comment the appellant made during cross-examination that he'd spoken to counsel who was supposed to be there that day but that person didn't show up. The appellant explained that he chose to proceed with the trial as the matter had been up a number of times, he'd taken days off work and he needed to resolve the issue. He also noted that the matter was peremptory.

10. At the beginning of the trial Mr. Mustakinovski made no mention of waiting for a lawyer, agent or anyone else. When asked if he was ready to proceed he confirmed that he'd read and understood the prosecution materials regarding the application to amend (See: R. v. Winlow, 2009 ONCA 643) and he was "Ready to go, … Your Worship" for trial.

11. There's no evidence that a lawyer or licensed paralegal was ever retained to represent the appellant on October 24, 2011. The appellant's vague comment in cross-examination towards the end of trial contains no details, and was not tested in cross-examination as the lack of counsel was never raised as an issue at trial. In the more than two years that have passed since there's been no evidence provided to the court that a lawyer or paralegal was engaged to represent the appellant at trial. The appellant had a strong motive to do so as such information would have resulted in prosecution consent to a new trial.

12. The appellant was prepared for his trial and told the court he was "ready to go". The Justice of the Peace was right to accept the appellant's indication that he was ready to proceed to trial. The court did not err in failing to cross-examine the appellant on his trial preparation or suggest to the appellant that he apply for yet another adjournment when there was no basis for such a suggestion and he plainly wanted the matter to proceed. The court provided appropriate assistance throughout to the unrepresented appellant.

The Winlow Amendment

13. Sometimes officers use their discretion and issue a ticket at a speed lower than the actual speed clocked. It's open to the prosecution to apply at trial to amend the certificate to conform to the actual evidence of speed pursuant to s. 34 of the Provincial Offences Act.

14. In this case the prosecution provided advance notice to the appellant of their intention to apply to amend the certificate to conform to the actual speed. The prosecution had also provided the appellant with a copy of the leading case that explains the application: R. v. Winlow, 2009 ONCA 643.

15. Before arraignment the appellant confirmed that he'd received the materials and understood the nature of the application.

16. The issue is not a complex one. The court considered the issue in accordance with s. 34(4) of the Provincial Offences Act. The appellant has failed to demonstrate the error alleged.

Applying the Wrong Legal Standard to the Offence

17. I agree with the appellant that the court applied the wrong legal standard to the offence. Speeding is an "absolute liability" offence not a "strict liability" offence as stated at trial. See: R. v. Raham, 2012 ONCA 206

18. Although the court erred in the legal standard applicable, it was to the benefit of the appellant as the court considered defences that were not available in law. There was no prejudice to the appellant arising out of the error nor would it have affected the verdict.

Reasons for Judgment

19. The Appellant submits that the court erred in accepting the prosecution evidence and not providing sufficient reason for the rejection of the appellant's evidence.

20. The court provided extensive reasons for judgment as set out from pages 72 to 78 of the transcript. The Learned Justice of the Peace applied the correct standard of proof and explained that she accepted the officer's evidence as to speed as he was using an onboard device specifically tasked to that purpose that had been tested that same day both before and after his shift and found accurate. The appellant's evidence as to speed did not include measurement with such a device or contemporaneous testing to ensure accuracy. The appellant's testimony as to details such as his vehicle model year and its speed also varied at trial.

21. It was open to the Justice of the Peace to accept the officer's evidence. Her reasons sufficiently explain why she did so and why she rejected the evidence of the appellant.

Conclusion

22. For these reasons this appeal is dismissed.

Delivered 22 November, 2013.

Justice Joseph F. Kenkel