DATE: 20051025

DOCKET: C42001

COURT OF APPEAL FOR ONTARIO

RE:

THE CORPORATION OF THE CITY OF LONDON (Municipal Prosecutor/Respondent) – and – VICTOR POLEWSKY (Defendant/Appellant)

BEFORE:

WEILER, BLAIR and MACFARLAND JJ.A.

COUNSEL:

Tony S.K. Wong and Michelle Wood

for the appellant

David Finley

for the Crown

HEARD &

RELEASED ORALLY:

October 6, 2005

On appeal from the judgment of Justice Gregory A. Pockele of the Ontario Court of Justice dated March 9, 2004, dismissing the appeal of the conviction entered by Justice of the Peace Janice I. Levitt on November 20, 2001 and the convictions entered by Justice of the Peace Donna Phillips on February 11, 2002, under the Provincial Offences Act.

E N D O R S E M E N T

[1] Victor Polewsky appeals, with leave, from a decision of Justice Pockele of the Ontario Court of Justice dismissing his appeal from convictions on three charges of speeding contrary to s. 128 of the Highway Traffic Act, R.S.O. 1990, c. H-8 (“the HTA”).

[2] The main issue on this appeal is whether speeding is an offence of absolute or strict liability in Ontario. The appellant argues that speeding ought to be classified as a strict liability offence because of: (1) the guidelines for categorizing offences as set out by the Supreme Court in R. v. Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299 and (2) the application of s. 7 of the Charter which engages the appellant’s liberty interest.

[3] This Court held that the offence in issue is one of absolute liability in R. v. Hickey (1976), 1976 653 (ON CA), 13 O.R. (2d) 228. We have not been given any good policy reason to revisit Hickey on the grounds articulated in Sault St Marie. Speed is a factor in many collisions. The overall regulatory pattern adopted by the legislature, the subject matter of the legislation, and the language used suggest that speeding should continue to be interpreted as an offence of absolute liability.

[4] The issue then, is whether the liberty interest of the appellant is engaged pursuant to s. 7 of the Charter. The holding and comments by this Court in R. v. Nickel City Transport (Sudbury) Ltd. (1993), 1993 8483 (ON CA), 14 O.R. (3d) 115 (C.A.), heavily relied upon by the appellant, have been superceded by legislative changes to s. 69 of the Provincial Offences Act, R.S.O. 1990, c. P-33. Specifically, s. 69 was amended to separate default proceedings from the original trial and now also provides for an assessment of the means of the offender to pay his or her fine. In considering s. 69 in light of a provincial trespass offence, Hill J. in R. v. Assante‑Messah, [1996] O.J. No. 1821 (Gen. Div.), rev’d on other grounds (2001), 2001 7279 (ON CA), 204 D.L.R. (4th) 51 (C.A.), rev’d on other grounds 2003 SCC 38, [2003] 2 S.C.R. 3, concluded that the risk of imprisonment in default was sufficiently remote as not to engage a liberty interest under s. 7. The risk with respect to speeding is similarly remote in this case.

[5] Accordingly the appeal is dismissed.

[6] With respect to costs, the fact the appellant’s appeal was conducted on a pro bono basis does not, for that reason, disentitle the appellant to costs. Although an issue of public interest was raised, the appellant had a significant personal interest in the appeal and we would follow the decision of this court in Garcia and hold that it is not unfair to require each side to bear its own costs. That said, we are of the opinion that the disbursements that the appellant incurred in bringing forward the litigation ought to be reimbursed. These total $1148.

“K. M. Weiler J.A.”

“R. A. Blair J.A.”

“J. MacFarland J.A.”