Offence No. 4560-999-00-4327150A

Citation: R. v. Abdi, 2012 ONCJ 782

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

REZA ABDI

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE J. NADEL

on February 6, 2012, at ST. CATHARINES, Ontario

APPEARANCES:

J. Foley

Provincial Prosecutor

A. Jenkins

Agent for Reza Abdi

MONDAY FEBRUARY 6, 2012

R E A S O N S F O R J U D G M E N T

NADEL, J. (Orally):

This is an appeal brought by Reza Abdi who was charged with making an unsafe lane change on August 20th, 2010 on the Queen Elizabeth Highway contrary to section 154 (1)(a) of the

Highway Traffic Act.

That section provides that:

Where a highway has been divided into clearly marked lanes for traffic, (a) a vehicle shall be driven as nearly as may be practicable, entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.

The offence date was August 20th, 2010. A trial date was granted on October 8th, 2010. The trial date was for June 13, 2011.

The agent, styled as “X-Copper,” on behalf of the appellant, wrote by fax to the prosecutor’s office on October 20th, 2010 several months before the trial asking for disclosure. The prosecutor did not respond until May 6th, 2011. On that occasion, the officer-in-charge’s notes comprising less than two complete pages and witness statements of the putative victim and the defendant were faxed.

A second request for re-faxing of the officer’s notes was made on May 13th for the trial that was to commence on June 13th, or about a month beforehand. The basis of the request for a second transmission was merely that: “The officer’s notes are not clear enough to read; please resend.”

There was no request for what was described as a transcription by Mr. Kocet who appeared on the trial date.

On June 13th, 2011, Mr. Kocet appeared as agent for the defendant. The defendant had retained a

paralegal firm called X-Copper and that firm had

retained Mr. Kocet.

When the case was called on the trial date, Mr. Kocet requested an adjournment of the trial, and the reason for the request, as noted, is that the officer’s notes were not clear enough to read and there was a request to resend them, and I infer that to mean, to re-fax them.

Mr. Kocet has submitted that the agent for the defendant had requested a transcription of the notes on May 13th but that had not been provided. In fact, that was not what the request was.

The prosecution opposed the application for

adjournment because: (1) the matter was set for trial; (2) the witness, a civilian of 71 years of age, and the officer-in-charge were present and ready to proceed to trial; (3) neither the agent present, Mr. Kocet, nor his principal, X-Copper, had contacted the prosecution prior to the trial date to indicate that a request for an adjournment would be made; and (4) the prosecutor noted that the defendant did not attend on his trial date.

Mr. Kocet submitted that the principal had requested the officer’s notes to be “transcribed.” The provincial prosecutor had not seen that second request, but as I have already indicated twice: “The officer’s notes are not clear enough to read; please resend”, was what the request was.

Mr. Kocet, on behalf of the defendant, submitted that a case styled as R. v. S.L., [1999] O.J. No. 252 was of assistance on the issue of the transcription of notes. In my view, that case is of little moment, in the circumstances of this appeal, and fails to be decisive on an alternative basis.

When asked by the court why the retained agent, Mr. Bragelin (ph) was not present and why the defendant was not present, Mr. Kocet simply said: “He would be stationed at the X-Copper office”, which was no answer at all.

In the result, His Worship Justice of the Peace R.

Kivell denied the defendant’s request for an adjournment. His reasons are short. First, he was troubled by the lack of communication by the defendant with respect to its complaint about the full disclosure provided to the defendant by the prosecutor. He was disappointed, he said, that paltry effort had been made (my word not his) by the agent to pursue the clarification it felt it needed; that the witnesses were present for the Crown, and that neither the defendant nor the agent retained were present.

In the result, he refused the request for the adjournment and ordered the matter to proceed. Justice of the Peace Kivell’s ruling on the denial of the adjournment request is the first ground of appeal. A ruling with respect to a request for an adjournment is a matter of discretion to be exercised judicially.

In R. v. Blanchard, [2008] O.J. No. 4505 (C.A.):

“The court held that it recognizes and fully supports the power of a trial judge to refuse last minute adjournments to ensure the fair and efficient running of the trial courts.”

That is at paragraph one.

This is not a case where an unrepresented accused is seeking an adjournment to retain counsel. So,

for example, see R. v. Gonsalves, [2005] O.J. No. 1238 (C.A.). Nor is this a case where, in my view at least, the presiding justice has fallen into jurisdictional error by refusing a request for an adjournment during the course of a hearing to give the defendant an opportunity to obtain missing disclosure. In my view, there is no disclosure missing in this case, although there was an issue as to the legibility of some small portion of it.

In my view, the order refusing the adjournment in question was not arbitrarily made nor was it calculated to bring the administration of justice into disrepute as was the case in R. v. Robert Gerald Harris, [2005] O.J. No. 4001 (C.A.)

As was noted in R. v. Oliver and Morrison, 2005 3582 (ON CA), [2005] O.J. No. 596 (C.A.):

The right of an accused to make full answer and defence does not command that every adjournment request be granted. The interest of an accused in pursuing whatever avenue may assist in his defence does not trump all other interest engaged in the due administration of justice.

Very recently, our Court of Appeal in a civil case, Graham and Van Der Sluide, [2012] O.J. No. 353 at paragraph five quoted principles to control the exercise of discretion where an adjournment is granted or denied. I appreciate this is a civil case, but in my view the principle substantially informed the issue before the learned Justice of the Peace Krivell.

The court recently said at paragraph five:

“Adjournment decisions are highly discretionary and appellant courts are rightly reluctant to interfere with them.”

Laskin Justice in Appeal succinctly summarized the operative legal principals in Khimji v. Dhanani Estate (2004), 2004 12037 (ON CA), 69 OR (3d) 790 (C.A.).

Although he was in dissent, the majority accepted his articulation of the statement of principles at paragraphs 14 and 18. He said:

A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. A decision is discretionary and the scope for appellant intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant, and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case, several considerations may bear on these interests. The trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice an appellant court is justified in intervening.

He was of the view that that was the case in that particular situation; the majority was not.

My view is that, in this particular case, the learned justice of the peace did not fall into error in refusing the granting of the adjournment requested. Very significantly, in my view, no notice of an adjournment request was made at any point before the trial date. It would have been a simple matter to pick up the phone and call the prosecutor’s office and say: We have this issue with respect to the disclosure and as a result, we are not ready for trial. Please call off your witnesses.

The request to resend the officer’s notes, it seems to me, is a request without the prospect of arriving at any substantial gain. The point of the complaint was that the faxing of the notes, at least, assisted in making them indecipherable. At least, that was the allegation.

There is no suggestion, for example, that the defendant attempted to darken the notes to see if that would bring out what was printed, and there is certainly no suggestion that, as I say, the agent simply did not pick up the phone.

Significantly, as well, although there was a complaint about the notes being illegible, there was no similar complaint about the witness statements being illegible. In my view, the witness statements substantially recapitulate the notes in any event.

So, there was no warning that the defendants were not ready for trial. I agree with the learned justice of the peace that the efforts made to prepare for trial in the face of that complaint were what I described as paltry.

Finally, as Mr. Jenkins says: The defendants assumed in these circumstances, to their detriment, that an adjournment would be granted notwithstanding that they had not requested previously; notwithstanding that they made no real efforts to seek any further recourse.

This is not a case like R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, but there is a similar flavour to it. Where a defendant feels that he is missing something or needs some assistance and there is no response he has to make some noise about it. There was a month that intervened between the second request and the trial date and yet the proposed appellant’s office did nothing about that.

In my view, given that the trial date was set; the time was set aside; that witnesses were present; and that the failure complained about was only with respect to a portion of the disclosure that, as I understand the case, was recapitulated in the witness statements, I am of the view that the learned justice of the peace did not fall into error in refusing the adjournment and that ground of appeal is dismissed.

There are two other grounds of appeal that were raised in the notice of appeal one of which was spoken to by Mr. Jenkins. That ground is that the learned justice of the peace fell into error in finding guilt proven beyond a reasonable doubt on the unsafe lane change charge.

My view is that a fact finder can accept some part, all or none of witness’s evidence. That the evidence in this case is clear that the driver, Mrs. Spicer (ph) I believe her name is, indicated she was following her husband home after a stint at some campground. He was driving an RV; she was in their Lincoln car behind him. They were in, what she called the curb lane, but what is conceded was the right hand slow lane travelling about 90 to 95 kilometres per hour, just under the speed limit. That the defendant, in a very large garbage truck, although there was some inconsistency in her description of it compared to the name on the trailer, would come up beside her, fall back, come in line behind her and do that on a couple of occasions and then on the last occasion, he hit her while she was in her lane at her gas tank at the passenger side rear portion driver side of her car. When I say passenger side: at the rear portion of the driver’s side by her gas tank. That blow caused her to fly across three lanes of traffic and end up 180 degrees parked beside the median somewhat blocking the fast lane.

Her evidence was accepted by Justice of the Peace Krivell. In my view, particularly in light of the admission, admitted to be voluntary, that Mr. Abdi, if I can just find it again, really did not know when asked if he had moved from the middle lane to the right lane just before seeing the car in front of his grill. He said: “Honest to God, I’m too nervous; I don’t remember.” So his evidence doesn’t deny or contradict the evidence of Mrs. Spicer (ph).

In the circumstances, I see no error in the decision made, and as a result, although Mr. Jenkins did not speak to the last ground of appeal, namely an error in the application of W.D., in my view, no such error occurred as well. In the circumstances, the appeal is dismissed.

... MATTER CONCLUDED