Court of Appeal for Ontario

CITATION: R. v. Peric, 2008 ONCA 827

DATE: 20081205

DOCKET: M36841

BETWEEN

Her Majesty the Queen

Respondent

and

Milos Peric

Applicant

COUNSEL:

Milos Peric, acting in person

K. Papadopoulos, for the respondent

HEARD: November 7, 2008

On motion for an order under s. 131 of the Provincial Offences Act for leave to appeal the judgment of Justice W.J. Fitzgerald of the Ontario Court of Justice dated September 8, 2008.

Endorsement

Weiler J.A. (in chambers):

[1] The applicant was charged with a number of counts under the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) and the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 (“CAIA”) arising out of a collision between his vehicle and a train. After a trial before a justice of the peace, he was found guilty on all counts.

[2] The applicant appealed to Fitzgerald J. sitting as an appeal judge in the Ontario Court of Justice pursuant to s. 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”). The appeal judge noted that some of the grounds of appeal dealt with Charter matters and stated that he had no jurisdiction to deal with them. He indicated, however, that he had read all of the materials and concluded that, in any event, the applicant had failed to demonstrate any error in law or in principle. He dismissed the applicant’s appeal.

[3] The applicant seeks leave to appeal to this court from the judgment of the appeal judge pursuant to s. 131 of the POA.

[4] It is well-established that a POA court is a court of competent jurisdiction for the purposes of awarding relief under s. 24(1) of the Charter: see R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575. Thus, the appeal judge erred in stating that he did not have jurisdiction to deal with the applicant’s Charter arguments. The question is whether this error of law requires me to grant leave to appeal in order to prevent a miscarriage of justice and to maintain public confidence in the administration of justice: R. v. Harry, (1998), 1998 CanLII 3605 (ON CA), 39 O.R. (3d) 673 (C.A.). In my opinion, it does not.

[5] Although the applicant now alleges that he was not tried within a reasonable time within the meaning of s. 11(b) of the Charter, it does not appear that he made such an application at trial. The thorough reasons of justice of the peace Forth, list a substantial number of adjournments made at the applicant’s request. Taking these into account, and the lack of any evidentiary record concerning prejudice, this ground of appeal has no arguable chance of success.

[6] Similarly, a review of the record indicates that the applicant, who represented himself at the trial, was afforded a wide degree of latitude and assistance with the conduct of his trial and that his fair trial rights were respected. Related to this ground, the applicant complains that the Crown called a number of unnecessary witnesses with the result that his trial was unduly protracted. However, the justice of the peace stated that the trial was protracted largely due to the inexperience and lack of legal training of the applicant. Many of the Crown’s witnesses were called in order to rebut the applicant’s contention that there was a conspiracy between the Ministry of Transportation and the Ontario Provincial Police. The justice of the peace was of the opinion that much of this evidence was of little assistance or not relevant to the real issues before the court and he had no hesitation in rejecting the applicant’s contention. Moreover, the evidence of the Ministry of Transportation inspector was properly before the court and was admissible at the trial.

[7] In relation to s. 11(c) of the Charter, the applicant was in no way legally compelled to testify and he did not testify.

[8] Nor was the applicant tried or convicted for the same offences within the meaning of s. 11(h) of the Charter. The sentencing proceedings indicate that counts one through seven inclusive concerned the HTA. The Crown did not seek an additional sentence in relation to these counts as the applicant had already been convicted of criminal negligence in another court in relation to the same incident and sentenced to a one year jail term and a five year driving prohibition. Thus, the applicant was only sentenced on the CAIA counts.

[9] The remaining grounds of appeal similarly have no arguable chance of success and do not require further comment.

[10] Accordingly, it is not essential in the public interest or for the due administration of justice that leave to appeal be granted.

[11] The motion for leave to appeal is therefore dismissed.

RELEASED: December 5, 2008 “K.M Weiler J.A.”