Court and Parties Information

Court: COURT OF APPEAL FOR ONTARIO Date: 2021-04-07 Docket: C67875

Before: Pardu, Brown and Paciocco JJ.A.

Between: Her Majesty the Queen, Respondent and Robert Topol, Appellant

Counsel: Robert Topol, acting in person Chris G. Bendick, for the respondent

Heard and released orally: April 6, 2021 by video conference

On appeal from: the decision of Justice Nyron Dwyer of the Ontario Court of Justice, dated April 12, 2019, dismissing the appeal from the conviction entered by Justice of the Peace Rhonda Shousterman on August 14, 2018

Reasons for Decision

[1] The appellant was convicted of speeding by a justice of the peace for driving at 91 km/h in a 50 km/h zone. His appeal to the provincial offences appeal court was dismissed.

[2] Roberts J.A. granted leave to appeal that decision, noting “there is good reason to believe that the appeal judge misapprehended the mathematical errors the moving party highlighted and erred in mischaracterizing the discrepancies as minor.” Citing R. v. Morillo, 2018 ONCA 582, 362 C.C.C. (3d) 23, she added that the appeal “raises special ground in that it concerns process issues essential to the public interest and for the administration justice”, namely the scrutiny of officers’ oral testimony in traffic offences involving self-represented accused.

[3] The charging officer testified at trial that he measured the time and distance travelled by the appellant, but this testimony implied a speed widely different from that measured by the radar device. The respondent concedes that the discrepancy between the officer’s testimony and the radar reading was significant and could have raised a reasonable doubt as to whether the speed-measuring device was functioning properly. The respondent concedes that the justice of the peace made a palpable and overriding error in failing to consider this evidence and that a new trial is required. We agree.

[4] The conviction is set aside, and the matter is remitted back to the trial court for a new trial. The respondent indicates that it will withdraw the charge as it is no longer in the public interest to continue the prosecution.

[5] Mr. Topol seeks costs for his expenses, time, and trouble dealing with this proceeding. The general rule is that no costs are awarded in a proceeding under the Provincial Offences Act, R.S.O. 1990, c. P.33: see R. v. Felderhof (2003), 68 O.R. (3d) 481 (Ont. C.A.), at para. 100; R. v. Kazemi, 2013 ONCA 585, 117 O.R. (3d) 300. These appeals resulted from an error by the trial justice, and we see no basis to award costs.

“G. Pardu J.A.”

“David Brown J.A.”

“David M. Paciocco J.A.”