R. v. Hemrayeva, 2010 ONCA 194

CITATION: R. v. Hemrayeva, 2010 ONCA 194

DATE: 20100310

DOCKET: M38476

COURT OF APPEAL FOR ONTARIO

Simmons J.A. (In Chambers)

BETWEEN:

Her Majesty the Queen

Respondent

and

Akbibi Hemrayeva

Applicant

David Anber, for the applicant

Christopher Webb, for the respondent

Heard: March 1, 2010

Simmons J.A.:

[1] The applicant was convicted by a Justice of the Peace of disobeying an officer directing traffic contrary to s. 134(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. The conviction was upheld by a provincial offences appeal court judge. The applicant applies for leave to appeal the provincial appeal court judge’s decision to this court under s. 139 of the Provincial Offences Act, R.S.O. 1990, c. P.33.

[2] The only evidence at trial indicated that a police officer conducting radar surveillance on Highway 401 directed the applicant to stop her car because she was driving at a speed of 143 kilometres per hour. Although the applicant slowed down, she did not stop until pursued by the officer in his cruiser for approximately two kilometres.

[3] Section 134(1) of the Highway Traffic Act provides as follows:

134(1) Where a police officer considers it reasonably necessary,

(a) to ensure orderly movement of traffic;

(b) to prevent injury or damage to persons or property; or

(c) permit proper action in an emergency,

he or she may direct traffic according to his or her discretion, despite the provisions of this Part, and any person shall obey his or her directions.

[4] In cross-examination, defence counsel at trial questioned the police officer concerning the basis for the stop as follows:

Q. Now, you agree officer that at the time you were initiating the attempt to make a traffic stop. There was no emergency taking place at that time?

A. She was speeding. So I wanted to pull [her] over because she was travelling 43 kilometres over the limit.

Q. And would you classify this as an emergency?

A. One waiting to happen perhaps, but not an emergency in the sense of a car accident.

Q. No. And at the time was there any imminent risk of injury or damage to property or person?

A. There was if I didn’t get out of the way.

Q. Okay, but prior to you getting into the road, what was the imminent risk of danger … of damage to property or injury to person?

A. There was none.

Q. Okay. Now, you’ve indicated in your notes and I don’t recall if you testified to it but there was no other traffic on the road at that time other than her. Is that correct?

A. Correct. She was completely alone.

Q. Okay. And so there was no potential for any disorder with respect to the flow of traffic?

A. No.

[Emphasis added.]

[5] Defence counsel at trial moved for a directed verdict arguing that the preconditions for the exercise of discretion under s. 134 of the Highway Traffic Act had not been satisfied.

[6] The Justice of the Peace dismissed the motion stating, “I am not satisfied that indeed … the officer did not have the discretion.” He subsequently convicted the applicant, holding that the elements of the offence had been satisfied and imposed a fine of $85.00.

[7] On appeal to the Provincial Offences Appeal Court, the provincial offences appeal court judge concluded:

I am quite satisfied that when he sees somebody travelling at that speed, to ensure the orderly movement of traffic, he has got to get that vehicle off the road and get it to slow down. So the charge was appropriately made out on the evidence disclosed without the officer having to go through the a.b.c’s of the various conditions of the particular offence.

[8] On appeal to this court, the applicant argued that the Justice of the Peace misinterpreted s. 134(1) by failing to recognize that one of the preconditions in s. 134(1) must be met before the discretion under that section is triggered. In addition, she argued that the provincial offences appeal court judge erred by misinterpreting the word “traffic” as it appears in s. 134(1) as applying to a single vehicle and by making a finding concerning the reason for the officer’s exercise of discretion not made by Justice of the Peace and not supported by the evidence.

[9] The applicant contends that her grounds of appeal satisfy the test for granting leave under s. 139 of the Provincial Offences Act because the decisions below reflect conflicting interpretations of a common statutory provision and also involve issues relating to the powers of police officers, the duties of civilians, the scope of appellate review and the elements of the offence under s. 134.

[10] I disagree.

[11] The threshold for granting leave under s. 139 of the Provincial Offences Act is very high. There must be special grounds on a question of law alone and it must be essential in the public interest or for the due administration of justice that leave be granted. As Carthy J.A. observed in R. v. Zakarow (1990), 1990 CanLII 6991 (ON CA), 74 O.R. (2d) 621 (C.A.) at pp. 625-6, “[t]he section was clearly drafted to eliminate all but appeals on the most significant issues.”

[12] I see no merit in the applicant’s submission that upon a review of the Highway Traffic Act, it is clear that the word “traffic” is intended to refer to more than one vehicle. The applicant did not provide examples of other sections in the Act that support this contention. On a cursory review of the Act, many sections, including s. 134(1) make it clear that the word “traffic” is intended to refer to one or more vehicles. To hold otherwise would lead to the absurd result that, for example, in an emergency involving a bridge collapse on the roadway ahead, a police officer could not exercise the discretion conferred by s. 134(1) to direct a single vehicle to stop where there was no other traffic in the area. As further examples, see ss. 134.1, 136(1)(b) and 138(1) of the Highway Traffic Act.

[13] In addition, I reject the applicant’s assertion that there was no evidence at trial to support the provincial offences appeal court judge’s finding that the police officer stopped the applicant to ensure the orderly movement of traffic. The officer testified he stopped the applicant because she was going 43 kilometres per hour over the speed limit. Defence counsel’s question to the officer concerning the precondition in s. 134(1)(a) of the Highway Traffic Act related to the orderly flow of traffic, not the orderly movement of traffic.

[14] Further, I do not read the Justice of the Peace’s reasons as meaning, necessarily, that he misinterpreted s. 134(1) by failing to recognize that one of the three preconditions in that section must be met before the discretion is triggered.

[15] However, even if the Justice of the Peace misinterpreted s. 134(1) in the manner alleged, even if the provincial offences appeal court judge erred by making a finding not made by the Justice of the Peace, and even if s. 216 of the Highway Traffic Act (which carries a minimum fine of $1000) is the section more generally used to address the type of conduct that occurred in this case, I am not persuaded that the applicant has met the test for granting leave to appeal. In my view, the proposed issues for appeal do not raise a significant issue of statutory interpretation; they do not raise issues concerning appellate review that are not already the subject of settled law; and they do not raise the spectre of a miscarriage of justice.

[16] The application for leave to appeal is therefore dismissed.

RELEASED: March 10, 2010

“Janet Simmons J.A.”