Court File and Parties

Ontario Court of Justice

Date: 2018-05-07

Court File No.: 11 3592

Between:

Her Majesty the Queen

— and —

John Black

Before: Justice of the Peace Coopersmith

Heard on: March 20, 2017, May 1, 2017, August 16, 2017, February 12, 2018

Reasons for Judgment released on: May 7, 2018

Counsel:

• B. Guertin, counsel for the prosecution
• G. Cadogan, counsel for the defendant John Black

Judgment

JUSTICE OF THE PEACE COOPERSMITH:

Introduction

[1] On September 3, 2011, John Black was charged under Part III of the Provincial Offences Act, R.S.O. 1990, c. P.33 ["POA"] with committing the offence of "operate a motor vehicle on a highway, namely Highway 401 while performing a stunt, to wit: speeding 218 km/hr in a posted 100 km/hr speed zone, contrary to Highway Traffic Act section 172(1)".

[2] This is a trial de novo, as the matter was sent back from appeal for retrial. After several full-day trial dates being adjourned at the request of the defence, and one request for adjournment by the Crown, the defendant was arraigned on the charge of stunt driving on March 20, 2017. This was followed by a voir dire to address the defendant's Application to stay the charge on the basis that the Crown destroyed or failed to provide full disclosure, thereby, violating Mr. Black's section 7 rights under the Canadian Charter of Rights and Freedoms ["Charter"]. I heard the evidence of OPP Officer Ritchie and the defendant, Mr. Black, along with both parties' submissions related to the Application, following which I reserved my ruling in order to review the written filings of the parties and the evidence and submissions provided in the voir dire.

[3] We then moved into the trial proper and the prosecution put forth its case through evidence from OPP Officer John Ritchie. Mr. Cadogan advised he would not be calling his client to testify, but requested an adjournment to allow him to bring in the dispatch communications CDs he received as part of disclosure from the Crown and which he wanted to show were blank and purged by the Crown. As well, he wanted to track down and subpoena now retired OPP Sergeant Coolidge, Officer Ritchie's supervisor on September 3, 2011. I granted the adjournment and a status hearing was scheduled for May 1, 2017, so that Mr. Cadogan could provide an update on the progress he had made before setting a date for the trial to continue.

[4] On May 1, 2017, Mr. Cadogan did not bring in either of the allegedly blank or purged CDs provided by the Crown in disclosure. He informed the Court that he had received the full name of Officer Ritchie's supervisor and would be serving the subpoena for the continuing trial once that date had been determined. The parties agreed to four hours of continuing trial on August 16, 2017. I advised defence counsel to be ready to finish off his defence and provide submissions.

[5] On August 16, 2017, Mr. Cadogan sent his office assistant to request an adjournment, as he was ill. In the circumstances, I adjourned the continuing trial proceedings to February 12, 2018.

[6] On February 12, 2018, neither Mr. Cadogan nor the defendant attended court. Mr. Cadogan sent no message to either the court office or the Crown and no one appeared on his behalf. The Crown asked to proceed in an ex parte fashion, as provided by section 54 of the POA. In the circumstances, I granted the Crown's request. After hearing the Crown's submissions in the trial proper, I reserved my judgment to today's date.

[7] For the reasons that follow, I have dismissed the defendant's lost evidence application and, further, I find Mr. Black guilty of the charge of operating a motor vehicle on Highway 401 while performing a stunt, by speeding 218 kilometres per hour in a posted 100 kilometres per hour speed zone, contrary to subsection 172(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ["HTA"].

I. THE ISSUES

[8] A couple of issues have arisen during these proceedings:

1. Did the Crown refuse to provide, or did the Ontario Provincial Police ["OPP"] destroy, relevant evidence in the form of dispatch communications and, thereby, prevent the defendant from making full answer and defence, infringing his rights under section 7 of the Charter?

2. Did the defendant operate his motor vehicle on a highway while performing a stunt contrary to section 172 of the HTA?

II. LOST EVIDENCE APPLICATION – SECTION 7 OF THE CHARTER

[9] Defence counsel brought an Application to stay proceedings as a result of evidence that the defendant alleges was destroyed and, hence, not disclosed, thereby preventing Mr. Black from making full answer and defence, in violation of his section 7 rights under the Charter. The defence claims that communications between Officer Ritchie and dispatch during a high-speed police pursuit along Highway 401 is relevant and should have been provided in disclosure, but instead was destroyed.

[10] As the trial justice, I am obliged to ensure that each party consents to a blended voir dire. I am persuaded by the Alberta Court of Appeal, in R. v. Cochrane, 2018 ABCA 80, where, at paragraph 5 the Court states:

The principal issues on appeal arise out of the application of the appellant's voir dire testimony to the trial proper and the trial judge's use of that evidence in the conviction of the appellant. While the blended voir dire process can be an efficient mechanism to avoid duplicative testimony, a trial judge must be satisfied that the accused has given informed consent to the use of that process and that statements made by the accused during the voir dire are not used to incriminate him without a clear waiver of his s 13 Charter rights against self-incrimination.

[11] After arraignment, I asked the parties how they wished to proceed. The Crown suggested, "in terms of trial efficiency, to blend it", but was content to proceed either way. Unlike the defendant in Cochrane, supra, Mr. Black is not self-represented, but has Mr. Cadogan as his legal counsel. Mr. Cadogan was clear he wanted the Application heard separately. He was not consenting to a blended voir dire when he unequivocally stated "I'm not prepared to blend it." I am satisfied that this is an informed decision by the defendant to keep the voir dire proceedings separate from the trial proper.

[12] Furthermore, in R. v. Gauthier, the majority cited the Manitoba Court of Appeal in R. v. Bannerman (1996), 48 C.R. 110, at p.115:

I realize that the voir dire must be kept separate from the trial and that certain evidence on the voir dire must be completely excluded from the mind of the trial judge -- such as evidence that might be given by the accused and others -- unless leave is given, with the concurrence of counsel, to have voir dire evidence read into the trial for the purpose of saving time.

[13] Following the evidence and submissions on the Application, I advised that I would be reserving my ruling with respect to the Application. I asked the parties if they were "ready to move into the trial now." Without hesitation, Mr. Cadogan replied, "Yes." For clarification I stated "Trial proper."

[14] Consequently, in these circumstances, the jurisprudence is clear that, "evidence elicited during a voir dire is separate from the trial and may not be considered by the trial judge without the consent of counsel." [Cochrane, supra, at para. 17, citing R. v. Gauthier, supra, at 453]. Moreover, I am mindful that "[T]he examination and cross-examination of an accused on a voir dire is generally restricted to those matters at issue on the voir dire." [Cochrane, supra, at para. 25].

[15] At no time was there a request to apply any of the evidence heard during the voir dire to the trial proper. Hence, I will provide my ruling on the Application proceedings in the voir dire separate and apart from my judgment on the trial proper.

(a) Evidence on the Voir Dire

[16] Since the Application was brought by the defendant, the onus rested with the defence to bring evidence to support the Application. Counsel for the defendant, called upon Ontario Provincial Police Officer John Ritchie and his client, John Black, to provide evidence. The prosecution cross-examined, but called no witnesses on the voir dire.

i. Evidence of Ontario Provincial Police Officer John Ritchie

[17] Officer Ritchie testified that on September 3, 2011, he was on duty in Durham Region. At 3:05 a.m., he was stopped at the Highway 401 collector to core transfers, just west of Rougemount Drive in the City of Pickering. He was parked on the left shoulder of the transfer lane, in the median shoulder, facing eastbound. He used his radar device to measure two motor vehicles going over 200 kilometres per hour – a BMW and a red Mustang. The radar targeted at the BMW provided a reading of 210 kilometres per hour. When targeted at the red Mustang, it provided a reading of 218 kilometres an hour. The officer followed both vehicles for about seven kilometres, without his police vehicle lights and siren activated. When the Mustang slowed and exited at Brock Road, the officer then turned on his lights and siren and the driver of the Mustang pulled over to the side of the road right away. At no time was the driver of the Mustang fleeing from the officer while the police cruiser had its lights on and siren activated. During no time prior to the traffic stop did Officer Ritchie call dispatch.

[18] In 2011, Officer Ritchie provided to the Crown a copy of his notes from the September 3, 2011 incident and a copy of the brief, which contained a photocopy of the defendant's driver's licence, the synopsis of what Officer Ritchie had done and the OPP copy of the impoundment notice. He advised that it was not his job to provide recordings from dispatch. Instead, it is up to the court officer for the Ontario Provincial Police to make inquiries and contact communications for such disclosure. He testified that he had no idea if anyone had ever made such a request.

[19] Officer Ritchie advised that there was a policy that he contact a supervisor during a pursuit, but because this was not a pursuit, he did not contact his supervisor. A pursuit would be when the officer had activated his lights and siren or had done something to show he was behind an individual and he or she refused to pull over.

[20] On September 3, 2011, Officer Ritchie did not consider what transpired to constitute a pursuit. It was not uncommon for him to conduct a traffic stop without calling dispatch until the traffic stop was completed and, in a lot of traffic stops, he would have no communications at all with dispatch. In a case like 'stunt driving', it would not be uncommon for the first communication with dispatch to be to request a tow truck.

ii. Evidence of the Defendant, John Black

[21] John Black testified that the only disclosure originally provided to him was the officer's notes without any CD. His legal representative had asked for further disclosure on several occasions, but all that was provided was the officer's notes. He did not get a CD from the Crown until the end of his appeal, about two years after the incident.

[22] The defendant testified that the first CD he received was blank, as was the second one sent to replace the first. He had listened to both CDs for twenty minutes and there was nothing on either of them. In Mr. Black's Affidavit from March 14, 2017, at paragraph 10 he writes, "I have listened to the recordings of the Officer's (Ritchie) contact with dispatch and about 23 minutes has been deleted or purged."

The first time Mr. Black heard anything on a CD was the first morning of these proceedings, that being March 20, 2017. It consisted of 2 minutes and 53 seconds of an officer arranging a tow truck. Furthermore, this recording was at 3:24 a.m., which Mr. Black stated was almost 25 minutes after he was pulled over at Brock Road at 3:05 a.m. The defendant claims he saw the officer talking on his radio at 3:10 a.m. for ten minutes.

[23] In his viva voce evidence, but not in any of his affidavits provided in the Application Record, Mr. Black stated he had seen Officer Ritchie talking to dispatch when he was pulled over because he sat beside the police car for 20 or 25 minutes and saw that the officer was on the radio. On the stand, the defendant believes absolutely that the dispatch communications were not deleted, but just not provided. This reason for non-disclosure differs from his affidavit evidence in the Application Record, where he talks about the records being deleted or purged.

[24] Mr. Black accepts that since he was not in Officer Ritchie's cruise when the officer was driving along Highway 401, he cannot say what Officer Ritchie was doing as they drove along Highway 401. He also states that back-up arrived about five minutes after they pulled over onto the shoulder for the traffic stop and that the back-up officer was Officer Ritchie's "boss".

(b) Submissions on the Voir Dire

[25] Mr. Cadogan pointed to Tab 4 of the Applicant's Record, which is an October 3, 2012 fax from Mr. Black's prior legal representative to the prosecutor, acknowledging receipt of initial disclosure and requesting, inter alia, "Any video and/ or electronic recordings". Despite more than one request for the recordings, dispatch recordings were provided approximately two years after Mr. Black's first trial. The first CD was provided July 28, 2014 and several months later when the defence advised the Crown that the CD was blank, a second CD, which the defence claims also was blank, was provided the next day, on December 5, 2014. There is dispute as to what the recordings were and if they were the ones played this morning, which the defence had not previously heard.

[26] Mr. Cadogan cited O. Reg. 266/10 made under the Police Services Act, R.S.O. 1990, c. P.15, in effect on September 3, 2011. It requires a police officer engaged in a pursuit to contact communications, so that a supervisor can be advised. Mr. Cadogan submits that it is no coincidence that a supervisor came to the scene of the traffic stop, as this supervisor would have been contacted prior to the initiation of the pursuit, as mandated by the statute.

[27] Also, on September 26, 2012, the Justice of the Peace ordered the Crown to provide all disclosure by December 14, 2012 and this was not done, as the CD was provided years later. The Crown was ordered to provide disclosure before, not after, the trial. Court orders must be obeyed and disclosure is to be proved in accordance with R. v. Stinchcombe.

[28] Finally, in a letter from the prosecution to Mr. Cadogan on March 7, 2014, the original OPP brief had been located, but it had been purged and the Crown had neither the original October 3rd letter from the defendant's original legal representative nor the Crown's response to it.

[29] Mr. Cadogan claims the first trial was unfair and, since the prosecution still has not provided all relevant disclosure, in particular, the officer's communications with dispatch during the pursuit, the defendant cannot make full answer and defence and this unfairness is perpetuated into this second trial.

[30] Mr. Guertin, the Crown, submits that despite defence's claims of Crown misconduct, breaches of court orders, breaches of disclosure obligations, there has been no evidentiary foundation that any evidence has been lost or destroyed. He claims the defendant was argumentative and evasive, provided affidavit evidence that conflicted with his viva voce evidence and gave testimony regarding important and relevant evidence that was nowhere in his affidavit. Officer Ritchie may well have had communications with dispatch, but that was after the traffic stop, when a tow truck was requested. That is what was on the CD.

[31] The Crown claims that since the defence is unable to demonstrate that there was any lost evidence, he is not in a position to argue the actual merits of the law in a lost evidence application. The applicant has not met his onus to get through the first threshold of showing that there existed some disclosure evidence that had been lost or destroyed.

(c) Ruling on Section 7 Charter Application

[32] In the matter before me, the defence vacillates between the Crown "destroying" dispatch communications and "not providing" such disclosure.

[33] I have carefully reviewed the Application Record, Applicant's Supplementary Application Record, Further Applicant's Supplementary Application Record, Applicant's Factum, Response Record and the evidence and submissions contained in the voir dire.

[34] The applicant bears the onus of demonstrating that there has been lost evidence or disclosure that has not been not provided. If he has demonstrated this, then he bears the onus of showing this loss or non-disclosure of evidence has infringed his section 7 Charter rights, thereby preventing him from making full answer and defence.

[35] As stated by Justice Sopinka, at paragraph 16, in the majority decision in R. v. La:

Since this Court's decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326 ("Stinchcombe (No. 1)"), the obligation of the Crown to disclose all relevant information in its possession, whether inculpatory or exculpatory, whether the Crown intends to rely on it or not, has been well established.

[36] The Crown's duty to disclose imposes an obligation to preserve relevant evidence. This duty to preserve evidence is a necessary element of a defendant's Charter right to make full answer and defence under section 7, as well as the right to a fair trial. Even if the defendant has suffered no actual harm, his Charter rights may still be violated if the Crown's conduct in not preserving the evidence "violates the fundamental principles that underlie the community's sense of fair play and decency". Where the Crown no longer has the evidence in its possession, the analysis continues in the same fashion as where the Crown possesses the material, but for whatever reasons, has not disclosed it. [R. v. La, supra, at para.55-59].

[37] Fairness dictates that justice must not only be done, but must also be seen to be done. The defendant relies on his Charter right to make full answer and defence. Hence, where the loss or non-disclosure of a document is so prejudicial to this right that the defendant's right to a fair trial is impaired, there is a violation of section 7 of the Charter and a stay may be the appropriate remedy.

[38] Mr. Cadogan cited O. Reg. 266/10 – Suspect Apprehension Pursuits, made under the Police Services Act, R.S.O. 1990 c. P.15. I have reviewed this regulation and provide the following relevant sections as follows:

[39] Subsection 1(1) of O. Reg. 266/10 reads:

1. (1) For the purposes of this Regulation, a suspect apprehension pursuit occurs when a police officer attempts to direct the driver of a motor vehicle to stop, the driver refuses to obey the officer and the officer pursues in a motor vehicle for the purpose of stopping the fleeing motor vehicle or identifying the fleeing motor vehicle or an individual in the fleeing motor vehicle.

[40] Section 3 of O. Reg. 266/10 provides:

3. (1) A police officer shall notify a dispatcher when the officer initiates a suspect apprehension pursuit.

(2) The dispatcher shall notify a communications supervisor or road supervisor, if a supervisor is available, that a suspect apprehension pursuit has been initiated.

[41] OPP Officer Ritchie was unshaken in his attestation that he was not in a "pursuit" situation as he followed the BMW and the Mustang at over 200 kilometres per hour along Highway 401, from Rougemount Drive to Brock Road in Pickering. He stated it was part of his duties to attempt to stop drivers proceeding at these high rates of speed on the highway. He had done so on numerous occasions. He did not have the lights and siren of his police cruiser activated along Highway 401 and he did not contact dispatch during this time. Officer Ritchie further explained that it was not unusual for one OPP Officer to stop by a traffic stop being executed by another OPP Officer, to check if everything was alright and if any assistance was required.

[42] The only evidence the defendant provided was that Officer Ritchie was on his radio after the traffic stop at Brock Road and that Officer Ritchie's "boss" arrived within five minutes of the traffic stop. He claims the CD recording he heard the morning of this trial, took place on September 3, 2011 at 3:24 a.m., which was at least 20 minutes after the traffic stop at Brock Road at 3:05 a.m. I disagree, and accept Officer's Ritchie's evidence that he targeted the defendant's Mustang near Rougemount Drive at 3:05 a.m. and the traffic stop was some time and distance later at Brock Road. Arranging a tow through dispatch was not the first thing the officer did at the traffic stop.

[43] I accept Officer Ritchie's evidence that he did not engage in any pursuit in this matter, nor did he contact dispatch as he drove at high speeds following the defendant's vehicle along Highway 401. Although a second OPP vehicle arrived at the traffic stop, I am satisfied Officer Ritchie made no such request. Sergeant Coolidge was in the area, saw the traffic stop and stopped by to make sure everything was alright in the early hours of the morning of September 3, 2011. Any contact Officer Ritchie may have had with OPP dispatch was after the traffic stop had been initiated at Brock Road in Pickering, to arrange a tow as a result of the stunt driving charge he laid against the defendant that night.

[44] I find the defendant's evidence that there was communications between Officer Ritchie and dispatch as they drove at extremely high speeds along Highway 401 after 3:00 a.m. on September 3, 2011, to be mere speculation. He has not established a basis that allows me to conclude that there is in existence further material which is potentially relevant. There is no basis on which it can be found that lost or destroyed evidence, consisting of communications from Officer Ritchie to dispatch as he drove behind the defendant's vehicle along Highway 401 in the early hours of the morning on September 3, 2011, ever existed. The defendant's belief of the existence of any such dispatch recordings does not make it so and such a belief has not been substantiated. The Crown cannot be required to justify non-disclosure of material, the alleged existence of which is unfounded.

[45] Section 7 of the Charter provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[46] In assessing whether the defendant's rights under section 7 of the Charter have been infringed, I would look to the following considerations:

a) The seriousness of the Charter infringing conduct of the Crown/police – whether non-disclosure would bring the administration of justice into disrepute.

b) The impact on the interests of the defendant protected under the Charter – whether the breach undermines the interests protected by the right that has been infringed.

c) Society's interest in adjudication on its merits – whether the truth-seeking function of the trial process would be better served by admission of the evidence. The focus is on society generally expecting offence allegations will be adjudicated in a fair hearing of the case on its merits.

d) Balancing the factors – not whether a majority of the factors are satisfied, but each factor must be weighed to determine whether, having regard to the circumstances, the administration of justice would be brought into disrepute.

[47] In the matter before me, no dispatch communications with Officer Ritchie exists other than to arrange a tow after the impugned driving behaviour of the defendant and after the traffic stop was conducted. This dispatch communications is not a factor that is relevant to the case before me. Consequently, I find that the Crown satisfied its obligation to provide full disclosure to the defendant. There is no misconduct, whether inadvertent or otherwise, by the police or by the prosecution. I need not proceed further to determine whether the defendant's Charter rights under section 7 have been infringed. The defendant has not met his onus of first demonstrating that there has been lost evidence. In no way can the non-disclosure of evidence that does not exist impair the defendant's ability to make full answer and defence. The defendant's Application claiming violation of his section 7 Charter rights is dismissed. The case will be heard on its merits.

III. PERFORMING A STUNT UNDER SECTION 172 OF THE HTA

[48] The trial proper relates to the September 3, 2011 charge laid against the defendant, of performing a stunt under section 172 of the HTA, by driving along Highway 401 in Pickering at a rate of speed of 218 kilometres per hour in the posted 100 kilometres per hour speed zone.

[49] I will be addressing a couple of trial issues:

1. Did the defendant commit the offence of driving his motor vehicle while performing a stunt, contrary to section 172 of the HTA?

2. Can the continuing trial be conducted in an ex parte fashion as contemplated by section 54 of the POA?

[50] As stated above, after reserving my ruling on the lost evidence or incomplete disclosure application, defence counsel, requested a bifurcated trial and did not request that the evidence from the voir dire be applied to the trial proper. Hence, only evidence and submissions provided in the trial proper will be considered.

[51] On March 20, 2018, the proceedings continued, as the prosecution brought its case in the trial proper in the form of evidence from Ontario Provincial Police Office John Ritchie. I then provided the defence with a short recess to consider whether Mr. Black would be testifying. Upon resumption of the proceedings, defence counsel advised that his client, "Mr. Black, will not be taking the stand." Mr. Cadogan then requested an adjournment to allow him to bring in the allegedly blank CDs and to serve a witness subpoena on now retired OPP Sergeant Coolidge, who was Officer Ritchie's supervisor on September 3, 2011.

(a) Evidence of Ontario Provincial Police Officer John Ritchie

[52] On September 3, 2011, Ontario Provincial Police Officer John Ritchie was on duty, on general patrol, in uniform capacity, in a police cruiser. At approximately 3:05 a.m., he was parked facing eastbound, against the centre cement barrier, on the wide left shoulder of the collector-to-core transfer lanes of Highway 401, just east of Port Credit, west of Rougemount Drive and across from the sign for the Region of Durham. At that location of the eastbound Highway 401, the lanes move slightly downhill and then slightly uphill towards Rougemount Drive in Pickering, providing Officer Ritchie with an unobstructed view of all eastbound traffic at that location. The roads were dry, the traffic was light and there were no issues with the weather conditions. The speed limit is clearly posted at 100 kilometres per hour in this area.

[53] At 3:05 a.m., Officer Ritchie's attention was drawn to the extreme, high speed of a motor vehicle that passed another motor vehicle like the latter vehicle was standing still. He observed a black BMW motor vehicle in the left lane of the collector lanes, as it passed his location at an extremely high rate of speed. He activated his Genesis VP radar speed measuring device, targeted it at the rear of that vehicle and received a reading of 210 kilometres per hour, which was consistent with his visual observations.

[54] Officer Ritchie testified that the purpose of the radar device is to measure the speed of moving objects, in this case, the motor vehicle moving at an extremely high rate of speed. Officer Ritchie has been trained on the Genesis VP radar device and has used it many times in the past. He tested it in accordance with manufacturer's specifications at the beginning of his shift at 6:00 p.m. and again after the traffic stop at 4:20 a.m., and he was satisfied that the device was in proper working order.

[55] As Officer Ritchie was just about to go after the BMW, out of the corner of his eye he observed a red Mustang approaching at an even higher rate of speed than the BMW, driving in the collector lane just to the right of that used by the BMW and catching up towards the rear of the BMW. Once this motor vehicle passed his location, he again activated the radar device. There was no need to clear the previous reading, as reactivating the trigger of the radar device brought up the new speed. This speed measuring device is a stationary radar unit and Officer Ritchie remained parked, with the engine of his cruiser running, while using the device. He had a clear and unobstructed view as he targeted the rear of the Mustang. The speed measuring device provided Officer Ritchie with a reading of 218 kilometres per hour.

[56] Officer Ritchie accelerated as fast as he could go, after both vehicles, keeping them in view and starting to catch up to the vehicles, as they then slowed to a speed the officer estimated to be under 200 kilometres per hour, perhaps, 150 to 160 kilometres per hour. Officer Ritchie did not know how fast he was going, as he did not look at his speedometer, remaining focused and speeding along Highway 401 after the two vehicles. He closed the distance between himself and the two speeding vehicles, as the Mustang pulled to the right of the BMW and brake lights came on as the two vehicles braked hard. When the two vehicles were side-by-side, the brake lights came off as the Mustang accelerated ahead of the BMW, which in turn accelerated. Then, the brake lights of the two vehicles came on again, as they again slowed down a bit, continued driving side-by-side, then the Mustang dropped back, then they accelerated again. It appeared that the driver of the Mustang was more the aggressor than was the driver of the BMW. This driving behaviour continued a few times as they approached Brock Road. Had the vehicles not slowed on several occasions, Officer Ritchie may not have been able to catch up sufficiently to continue to keep them in sight.

[57] Officer Ritchie did not activate either the lights or siren of his police cruiser, nor did he make radio contact with dispatch, as he drove about seven kilometres, eastbound along Highway 401, observing both vehicles. Nor was it his practice to call in every speeding vehicle. His focus would have been on driving safely, watching what was going on as he followed the two speeding motor vehicles.

[58] It appeared that both vehicles were going to exit at Brock Road, in which case, they would have to slow down to below 100 kilometres per hour. Consequently, Officer Ritchie intended to stop both vehicles. He had pulled over two vehicles at a time on many occasions in the past by speeding in front of them and blocking them in. However, at the last moment, the BMW veered to the left and continued eastbound on Highway 401. It was just before the exit at Brock Road that Officer Ritchie activated the lights and siren of his fully-marked police cruiser and the driver of the Mustang immediately pulled over onto the right shoulder of the Brock Road off ramp in Pickering.

[59] Officer Ritchie advised that the driver of the Mustang was the lone occupant of the vehicle. He was satisfied with the driver identifying himself by way of an Ontario driver's licence as John Black, with a date of birth of September 18, 1964. Officer Ritchie then started the paperwork necessary to lay a charge for stunt driving. He issued a summons to Mr. Black for performing a stunt by speeding 218 kilometres per hour in a posted 100 kilometres per hour speed zone, contrary to subsection 172(1) of the HTA. He also provided the defendant with a vehicle impoundment notice and a licence suspension notice. The defendant was co-operative and left the scene of the traffic stop with his dog and the tow truck driver.

[60] Officer Ritchie was very clear that following the two speeding vehicles about seven kilometres along Highway 401 and trying to stop both speeding vehicles was not a "pursuit". A "pursuit" is when he would be trying to initiate a traffic stop on a motor vehicle, with the police cruiser lights and siren activated, and the vehicle failed to stop for him. He did not radio dispatch for assistance or contact his supervisor, since Mr. Black pulled to the shoulder once the cruiser lights and siren were activated. When defence counsel asked Officer Ritchie if he used his personal telephone, the officer replied that he would not even think to use his personal telephone to make such contact, as he was driving about 200 kilometres per hour.

[61] Officer Ritchie had not called dispatch for his supervising officer. However, Sergeant Coolidge, who has since retired from the Ontario Provincial Police, was working in the same area and arrived at the traffic stop to back up Officer Ritchie when he saw him stopped by the Brock Road off-ramp. It is Officer Ritchie's practice and it is routine for officers when they see a police cruiser at a traffic stop, to stop and offer assistance. That is what Sergeant Coolidge did on September 3, 2011; he was not called to assist in this matter. It was Sergeant Coolidge who, at approximately 3:24 a.m., radioed dispatch for the seven-day impound number and requested that a tow truck be sent to the site of the traffic stop, following which, at 3:29 a.m. Officer Ritchie asked for the incident number to be clarified. The tow truck arrived and at 4:00 a.m. Officer Ritchie cleared the scene, making it reportable to his badge number.

(b) Can the Continuing Trial be Conducted in an Ex Parte Fashion as Contemplated by Section 54 of the POA?

i. Background

[62] Mr. Cadogan first heard that Sergeant Coolidge was at the traffic stop during cross examination of Officer Ritchie. He had not previously asked for any disclosure Sergeant Coolidge may have had, despite his client, the defendant, advising him that more than one officer attended at the site of the traffic stop. The prosecution had not relied on any evidence from Sergeant Coolidge who did not witness the alleged high speeds of the vehicles, but had arrived at the scene of the traffic stop after the fact.

[63] After the prosecution closed its case, I provided the defence with a short recess to consider whether Mr. Black would be testifying. Upon resumption of the proceedings, Mr. Cadogan advised that his client, John Black, would not be taking the stand. He did, however, advise the Court that he wished to subpoena Sergeant Coolidge, as well as provide the two blank CDs the Crown had provided to him. He asked the Court to adjourn to allow these things to be accomplished. The matter was adjourned to May 1, 2017, for a status hearing, prior to setting additional trial dates.

[64] On May 1, 2017, Mr. Cadogan advised that he had obtained the full name of Sergeant Coolidge, but had not yet served him with a witness subpoena, as he needed the return date for the continuing trial. Nor had he brought the allegedly blank CDs the Crown had provided to him, as he was satisfied that he had heard the recordings on March 20, 2017.

[65] The parties agreed that August 16, 2017 was a suitable day when they would be available for the trial to continue. I advised Mr. Cadogan that he was to be prepared to finish with defence evidence and I would hear submissions from both parties on that day.

[66] On August 16, 2017, Ms. Lauren Boucaud appeared as an agent on behalf of Mr. Cadogan. Neither the defendant nor Sergeant Coolidge attended that day. Ms. Boucaud provided a doctor's note that indicated Mr. Cadogan was ill and requested the trial be adjourned. The Crown advised that Mr. Cadogan's office had contacted him the previous day, but Mr. Guertin still objected to the request for the adjournment. He had been trying to move the matter along, but the defence had caused multiple periods of delay. On March 20, 2017, the day the Application was heard and the Crown brought its case, defence counsel had asked for an adjournment, which this Court granted. Now, again, the defence was asking for an adjournment without providing any indication of what had been done to move forward to continue the trial.

[67] Given that unforeseen illness underlay Mr. Cadogan's reason to ask for a further adjournment, I granted the request and the trial was set to continue on February 12, 2018.

[68] On February 12, 2018, Mr. Cadogan failed to appear and no agent attended on his behalf. Neither the defendant nor Sergeant Coolidge was present. During a short recess, the Crown attempted to reach Mr. Cadogan at his office, but was unsuccessful.

[69] The Crown then asked the Court to exercise its jurisdiction under subsection 54(1)(a) of the POA and to proceed to hear the matter in the absence of the defence. Mr. Guertin advised that the trial started on March 20, 2017, at which time, after the Crown closed its case, Mr. Cadogan asked for an adjournment prior to bringing the defence case. The Court granted that adjournment. The matter was set for continuing trial on August 16, 2017, at which time Mr. Cadogan sent an agent, Ms. Boucaud, to ask for another adjournment. I granted that request, as well. February 12, 2018 was the third opportunity for Mr. Cadogan to bring the defence's case and he failed to come to court and left no messages as to why he was not there. The Crown submitted that Mr. Cadogan has had every opportunity to continue this trial and to conclude it on its merits. Mr. Guertin was prepared to proceed in an ex parte manner and to make submissions on the evidence in the absence of Mr. Black or his counsel, Mr. Cadogan.

ii. Relevant POA Legislation re: Ex Parte Proceedings

[70] Subsection 54(1) of the POA reads:

Conviction in the absence of the defendant

54 (1) Where a defendant does not appear at the time and place appointed for a hearing and it is proved by the prosecutor, having been given a reasonable opportunity to do so, that a summons was served, a notice of trial was given under Part I or II, an undertaking to appear was given or a recognizance to appear was entered into, as the case may be, or where the defendant does not appear upon the resumption of a hearing that has been adjourned, the court may,

(a) proceed to hear and determine the proceeding in the absence of the defendant; or

(b) adjourn the hearing and, if it thinks fit, issue a summons to appear or issue a warrant in the prescribed form for the arrest of the defendant.

iii. Findings and Analysis re: Ex Parte Proceedings

[71] I am satisfied that neither the defendant nor his counsel appeared in court upon the resumption of the trial on February 12, 2018. The Crown made attempts that day to contact defence counsel, but was not able to reach Mr. Cadogan. I must be careful not to deprive the defendant, either himself or through his representative, of the right to be present at trial. I do not accept that I have effected any such deprivation, since to exercise this right Mr. Black and/or his counsel need only appear at the time and place fixed for the continuation of his trial. If he does not avail himself of the right, then subsection 54(1)(a) provides me with jurisdiction either to adjourn the continuing trial to another date, with or without the court issuing a summons to appear or warrant, or else to proceed to hear and determine the proceeding in the absence of the defendant.

[72] The history of this proceeding since the time it returned from appeal is very troubling. Below is the chronology of the proceedings. (Note that, based on the information available to me, on some occasions I may not have noted that the defendant also appeared in addition to his legal counsel.)

Date	Parties Present	Action
Nov. 18, 2014	Ms. V. McGuire for the Crown; Mr. G. Cadogan for the Defendant	Crown brief not back from appeal; Adjourned to Dec. 23, 2014
Dec. 23, 2014	Ms. C. Cain for the Crown; Mr. G. Cadogan for the Defendant	Judicial pre-trial set for Feb 26, 2016
Feb. 26, 2015	Ms. C. Cain for the Crown; Mr. G. Cadogan for the Defendant	July 6, 2015 set for Defence to bring disclosure/lost evidence motion; Aug. 24, 2015 set as full-day target trial date
July 6, 2015	Ms. Cain for the Crown; No one appeared for the Defendant	No motion materials had been filed; Adjourned to Aug. 24, 2015 for full-day trial
Aug. 24, 2015	Ms. Cain for the Crown; Mr. Cadogan for the Defendant (arrived late)	Defendant unable to attend due to child care issues; Jan. 14, 2016 set for full-day trial; Defendant to bring note re: child care and medical condition of child
Jan. 14, 2016	Ms. Cain for the Crown; Mr. Cadogan for the Defendant	Crown witness, OPP Officer Ritchie, ill; No note re: child care or medical condition provided by Defence; May 16, 2016 set for full-day trial
May 16, 2016	Ms. Cain for the Crown; Mr. R. Francis, agent for Defence	Mr. Cadogan created a scheduling conflict – took on a last-minute trial matter in SJC Family Court; July 11, 2016 set for full-day trial
June 8, 2016	Ms. Cain for the Crown; No one appeared for Defence	Motion to vacate July 11, 2016 trial date granted (Crown scheduling conflict); Jan. 9, 2017 set for full-day trial
Jan 9, 2017	Ms. Cain for the Crown; Ms. L. Boucaud, agent for Defence	Mr. Cadogan ill; Mar. 20, 2017 set for full-day trial
Mar. 20, 2017	Mr. B. Guertin for the Crown; Mr. Cadogan & Mr. Black for Defence	Lost evidence Application heard; Crown's case in trial proper closed; M. Cadogan requested adjournment part way through the afternoon tier – to subpoena witness and bring in CDs provided by the Crown – adjournment granted; Adjourned to May 1, 2017 for status hearing
May 1, 2017	Mr. Guertin for the Crown; Mr. Cadogan for the Defendant	No CD brought to court; Adjourned for 2 2-hour tiers on Aug. 16, 2017 to allow Mr. Cadogan to subpoena witness for continuing trial (Defence case & submissions to be concluded)
Aug. 16, 2017	Mr. Guertin for the Crown; Ms. Boucaud, agent for Defence	Mr. Cadogan ill – adjournment request granted; Adjourned for 2 2-hour tiers on Feb, 12, 2018 for continuing trial
Feb. 12, 2018	Mr. Guertin for the Crown; No one appeared for Defence	Mr. Cadogan and Mr. Black were paged and the Crown unsuccessfully attempted to contact Mr. Cadogan; Court reviewed paperwork to ensure jurisdiction was in order; Court granted Crown request to proceed ex parte, as provided for in s.54 of POA; Crown provided submissions and Court reserved judgment to May 7, 2018

[73] This is the fourteenth time this matter has been in court since it returned from appeal. On July 6, 2016, forty-five minutes had been set aside for defence to bring the disclosure/lost evidence application. No motion materials were filed by the defence. Neither the defendant nor his legal counsel, Mr. Cadogan, attended court that day. On August 24, 2015, a full day of trial time was lost, as Mr. Cadogan advised the Court that Mr. Black had child care issues that prevented him from attending at his trial. The Court requested notes to be brought on the next occasion regarding the condition of Mr. Black's child and substantiating the child care issues. These were never provided. On May 16, 2016, another full day of trial time was lost when Mr. Cadogan sent an agent to advise this Court that Mr. Cadogan had scheduled a last-minute appearance in Family Court and would not be attending this full-day trial. The agent requested an adjournment and had no instructions to proceed with the trial that day. On January 9, 2017, another full day of trial time was lost when Mr. Cadogan sent an agent to advise the Court that he was ill. Again, the only instruction the agent had was to ask for an adjournment, with no further instructions to proceed to trial that day. Once the trial finally got under way on March 20, 2017, some of the afternoon court time was not used when Mr. Cadogan requested an adjournment to subpoena a witness and bring the two allegedly blank CDs to court. If legal counsel wanted to make the point that the two CDs provided by the Crown were blank or had been purged, it was incumbent upon him to bring the CDs to court on March 20, 2017, something he failed to do and which, on the next court appearance on May 1, 2017, again, he did not do. As well, it should have been no surprise to Mr. Cadogan that a second police officer had attended at the traffic stop on September 3, 2011, as his client was fully aware of this fact. On August 16, 2017, four hours of court time, set aside to continue the trial, were lost when Mr. Cadogan sent an agent to advise the Court that he was ill. The agent agreed to set February 12, 2018 to continue the trial. On February 12, 2018, neither Mr. Cadogan nor his client appeared. The Crown's attempts to contact defence counsel were unsuccessful.

[74] The Court has provided the defence with a lot of latitude and court time in which to bring its case. On July 6, 2015, August 24, 2015, May 16, 2016 and January 9, 2017, for one reason or another, Mr. Cadogan was not prepared to proceed with either the motion or the full days of trial time that had been set aside for this matter. And once the trial proceedings did get under way, for part of the afternoon of March 20, 2017, on August 16, 2017 and on February 12, 2018, again, the defence was either not prepared or not in attendance to complete the trial proceedings.

[75] In the appeal decision in R. v. Wei, 2017 ONCJ 878, the background reveals that the defendant had been granted an adjournment of the first date that was set for his trial. Three weeks prior to the second date set for trial, the defendant's agent sent a student to request an adjournment. The Justice of the Peace provided reasons to deny the motion. On the second trial date, a student for the defence agent appeared and renewed the request to adjourn this second trial date to another day. The Justice of the Peace exercised judicial discretion and, again, the defence's request to adjourn was denied. The student had no further instructions, left the courtroom and did not return. The charge was laid under Part I of the POA, and rather than deeming that the defendant did not dispute the charge under section 9.1 of the POA, the trial then proceeded in an ex parte manner, as provided under s. 54 of the POA. The defence unsuccessfully appealed the Justice of the Peace's decision to proceed in this fashion. In his appeal decision, Justice Ghost writes at para. 33:

Section 54 affords the absent defendant an appropriate measure of procedural fairness. The prosecution is required to prove the defendant was notified or compelled to attend trial. Evidence must be led to satisfy the standard of proof. The procedure employed was fair and consistent with the due administration of justice. This ground fails.

[76] I am satisfied, in the circumstances, that I may exercise my discretion to "proceed to hear and determine the proceedings in the absence of the defendant", as contemplated under subsection 54(1)(a) of the POA. As the statute provides, the decision to grant or deny an adjournment is a discretionary exercise. I have considered the potential consequences to and rights of the defendant and the opportunities provided to him to bring his case before me. I am satisfied that, in these circumstances, I am exercising my discretion judicially and in a manner so as not to result in a miscarriage of justice.

[77] This legislation is clear and provides me with machinery that may be employed, that is, to resume the trial that had been adjourned to February 12, 2018 in an ex parte manner, if the defendant does not avail himself of his right to appear at his continuing trial. The defence's attendance record in these proceedings has been inconsistent, including a couple of occasions when the defence did not notify either the Crown's office or the court, but instead simply did not shown up. Furthermore, had defence counsel been properly prepared on March 20, 2017, he would not have had to ask for an adjournment to continue the trial on another day. In total, three full days and another three partial days of trial time have not been utilized due to the defendant or his legal counsel not being prepared to proceed or not attending court.

[78] On August 16, 2017, Mr. Cadogan's agent had agreed that February 12, 2018 was a date agreeable for the defence to continue the trial. The court clerk wrote down the date, time and location and handed it to the agent. On February 12, 2018, the defendant and his counsel were paged inside and outside of the courtroom, but did not respond. Neither the prosecution nor the Court had received any messages from the defence regarding absence from court that day. The Court recessed in order to provide the Crown with the opportunity to contact Mr. Cadogan, but he was unsuccessful in his attempts to reach him. I asked the court clerk to go through the paperwork to ensure the Court had jurisdiction that day. I was satisfied that such jurisdiction existed. No one showed up for the defence that day. I granted the Crown's request to continue the proceedings in an ex parte manner.

iv. Ruling re: Ex Parte Proceedings as Contemplated by Section 54 of the POA

[79] In these circumstances, I have weighed the right of the defendant to be present at his trial proceedings against the imperative of a timely trial and the effective use of court resources. The defendant and/or his counsel have been provided with numerous opportunities to bring the defence case, and time after time after time the defence has failed to do so. I am not willing, under these circumstances, to adjourn the hearing again, to provide yet another such opportunity. For these reasons, I am satisfied and have exercised my jurisdiction to proceed to hear and determine these proceedings in the absence of the defendant, that is, these trial proceedings will continue in an ex parte manner, as contemplated by section 54 of the POA.

(c) Crown's Submissions on Stunt Driving

[80] The prosecution submits that the only witness who provided evidence was Officer Ritchie. He provided the Court with a brief synopsis of the evidence provided by the officer and advised that the officer was forthright and his evidence was credible and reliable. Mr. Guertin asked the Court to accept Officer Ritchie's evidence. Hence, he submits that the Crown has proven, beyond a reasonable doubt, that the defendant was operating a motor vehicle on a highway while performing a stunt, by driving 218 kilometres per hour in a 100 kilometre per hour maximum speed zone.

(d) Findings and Analysis re: Stunt Driving

[81] I find OPP Officer Ritchie's evidence straightforward, unwavering, credible and reliable. Hence, I find that on September 3, 2011, at around 3:05 a.m., on Highway 401 eastbound near Rougemount Drive in the City of Pickering, OPP Officer Ritchie was conducting speed enforcement. This area along Highway 401 is a posted 100 kilometres per hour maximum speed zone. The officer observed a red Mustang motor vehicle approaching his location at what he perceived to be an extremely high rate of speed. Once the vehicle passed him, Officer Ritchie had a clear unobstructed view as he targeted the rear of the Mustang with his Genesis VP radar, a speed measuring device used to measure the speed of moving motor vehicles. He obtained a reading of 218 kilometres per hour, which was consistent with his visual observations of an extremely high rate of speed. Officer Ritchie had tested the radar device in accordance with manufacturer's specifications at the beginning of his shift at 6:00 p.m. and again after the traffic stop at 4:20 a.m., and was satisfied that the device was in proper working order. He is trained to use this particular speed measuring device and has used it many times in the past. He followed the Mustang several kilometres along Highway 401, without activating his cruiser lights and siren. As the Mustang was exiting Highway 401 at Brock Road in Pickering, it slowed. It was at this time that Officer Ritchie activated the lights and siren of his police cruiser. The driver of the Mustang immediately pulled onto the shoulder of the Brock Road off ramp. At the traffic stop, Officer Ritchie was satisfied with the identity of the driver of the Mustang as John Black, the defendant before the Court. I am also satisfied with this identification.

[82] I am satisfied that all of the elements necessary to find John Black driving his Mustang motor vehicle at a rate of speed of 218 kilometres per hour in the posted 100 kilometre per hour speed zone along Highway 401 in Pickering on September 3, 2011 have been made out beyond a reasonable doubt.

[83] John Black has been charged under s.172 of the Highway Traffic Act, R.S.O. 1990, c. H.8, for performing a stunt. Section 172 reads:

172(1) Racing, stunts, etc. prohibited – No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.

[84] This section of the Highway Traffic Act creates three distinct offences: racing, performing a stunt and on a bet or wager: see e.g. R. v. Raham, 2010 ONCA 206. O. Reg. 455/07 expressly defines the activities where one or more persons engage in particular driving behaviours which will be captured by s. 172.

[85] In the matter before me, the following is the relevant subsections of O. Reg. 455/07 that relates to this offence of performing a stunt:

3.7. Driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit.

[86] I am satisfied that the maximum speed limit on the section of Highway 401 near Rougemount Drive in Pickering is posted at 100 kilometres per hour. I also have found the defendant travelling at a rate of speed of 218 kilometres per hour. This speed is 118 kilometres per hour over the maximum 100 kilometres per hour speed limit, exceeding the posted maximum speed limit by far more than 50 kilometres per hour. I am satisfied that all of the elements of driving on a highway while performing a stunt, contrary to s. 172 of the Highway Traffic Act and as described in subsection 3.7 of O. Reg. 455/07 have been proven beyond a reasonable doubt.

IV. CONCLUSION

[87] For the reasons I have provided, I find John Black guilty of driving his motor vehicle on Highway 401 in Pickering on September 3, 2011, while performing a stunt, that is, by driving at a speed of 218 kilometres per hour, which well exceeds 50 or more kilometres over the posted 100 kilometre per hour speed limit, contrary to s. 172 of the HTA. There will be a finding of guilt and a conviction will be registered.

Released: May 7, 2018

Signed: Justice of the Peace M. Coopersmith