Ontario Court of Justice

Date: October 1, 2015

Court File No.: Toronto

Between:

HER MAJESTY THE QUEEN (Appellant)

— AND —

MUHAMMAD RAZA (Respondent)

Before: Justice Nakatsuru

Heard on: October 1, 2015

Reasons for Judgment released on: October 1, 2015

Counsel:

E. Bylsma — counsel for the Appellant

G. Shapiro — agent for the Respondent

NAKATSURU J.:

ENDORSEMENT

[1] The appellant appeals the acquittals made on February 9, 2015, by Justice of the Peace K. Dresher of two Highway Traffic offences allegedly committed by the respondent. The appeal is allowed.

[2] At the respondent's trial, a police officer testified in examination-in-chief. Before cross-examination of the officer, the legal agent for the respondent brought a non-suit motion. The prosecutor objected. She argued that this was not the appropriate time as the prosecution case was not complete. The Justice of the Peace erred in hearing and granting the non-suit motion at this time.

[3] A non-suit motion is properly brought at the end of the prosecution case. Here the police officer had not yet finished testifying. There was still cross-examination and potential re-examination of the officer. Any evidence brought out in cross-examination and re-examination can be evidence both against and for the prosecution. Further, the prosecution could have called additional evidence. It was not permitted to do so given the timing of the motion. It is only after the prosecution has formally closed its case that a non-suit motion can be brought. It was clear the Justice of the Peace had reservations about the evidence given by the officer about the identification of the driver as the defendant. However, regardless of those reservations, a non-suit motion cannot be entertained until the prosecution has closed its case. To hear it prematurely as it was done here is unfair to the prosecution who should have been permitted to present its case in full before its evidence is put to the test for a non-suit or a directed verdict of acquittal. On this basis alone, the acquittals cannot stand.

[4] In addition, I would like to make the additional comment. In this case, the issue on the non-suit was whether there was any evidence of identification by the police officer of the defendant as the driver. Regardless of the ultimate evidentiary value of the officer's testimony about identifying the driver by looking at his valid driver's license, the officer had testified that the defendant was the driver of the car. This was some evidence of identification that would pass the non-suit phase.

[5] The parties have agreed that rather than sending this case back for a re-trial, a substituted conviction to a lesser offence be the disposition on appeal. I agree. The order will go accordingly.

Released: October 1, 2015

Signed: "Justice S. Nakatsuru"