ONTARIO COURT OF JUSTICE

CITATION: R. v. Arsenijevich, 2019 ONCJ 97

DATE: 2019 02 15

COURT FILE No.: POA Appeals – Certificate 3426261B

BETWEEN:

HER MAJESTY THE QUEEN (Respondent)

— AND —

BRANKO ARSENIJEVICH (Appellant)

Before Justice G.P. Renwick

Heard on 15 February 2019

Reasons for Judgment released on 15 February 2019

A. Cahill................................................................................. Prosecutor for the Respondent

The Appellant Branko Arsenijevich …………………………………..on his own behalf

RENWICK J.:

INTRODUCTION

[1] The Appellant appeals his conviction for speeding, 82 km/hr in a posted 60 km/hr zone after a trial held on 14 August 2018 before the Honourable Justice of the Peace G. Lin.

[2] I heard oral submissions on this Provincial Offences Act appeal, today.

[3] Although the Appellant initially alleged five grounds of appeal in his written materials, during submissions he abandoned the fifth ground relating to his arraignment.

[4] The Appellant seeks a new trial on the following grounds:

i. He was not allowed to be fully heard during his trial;

ii. He did not receive full disclosure prior to the start of the trial;

iii. The prosecutor made unsubstantiated allegations and threats against him; and

iv. The Appellant’s s. 11(b) Charter right to a trial within a reasonable period of time was violated.

POSITIONS OF THE PARTIES

[5] The Appellant admits that he is not formally trained in law. He complains essentially that his trial was not fair, that he was thwarted from advancing his defence, or even being heard, because he was interrupted by the prosecutor or the learned Justice of the Peace. Although the Appellant grounded his appeal on four separate grounds, this complaint is related to his argument respecting fabricated information and threats conveyed by the prosecutor, during his trial. These grounds of appeal strike at the heart of trial fairness. The remaining grounds allege substantive violations of the Appellant’s constitutional rights of disclosure in pursuit of making full answer and defence and his right to be tried within a reasonable period of time.

[6] The Respondent submits that the trial was fair, the Appellant was heard, the prosecutor’s unfortunate remarks had no effect on the Court, and the grounds concerning alleged Charter violations were not perfected in the Court below, nor can they be determined on the incomplete record on this appeal.

Trial Fairness Concerns

[7] I have carefully reviewed the transcripts provided and the arguments made on this appeal by both sides.

[8] In terms of not being heard or fully heard, the Appellant takes issue with the prosecution’s response during the trial to his application for disclosure. Before me, the Appellant concedes that the trial record, the transcript of his trial on 14 August 2018 does not reflect his request for disclosure of the police officer’s manual for the speed-detection device he employed that day. The Appellant concedes his request was made orally, but there were no details given with respect to the date, the time, to whom the request was made, or the prosecutor’s response.

[9] The Appellant produced transcripts from the following appearances leading up to this trial: 08 February 2017 (the date of the initial trial);[^1] 02 May 2018 (when the trial was adjourned to provide additional disclosure), and 14 August 2018 (two transcripts: the matter was initially spoken to in another courtroom before it was traversed to the trial justice; and the trial decision). These transcripts do not reflect that the Appellant had ever sought the manual of the speed-detection device from the prosecution. To the contrary, the only issue of disclosure that was canvassed by the learned trial justice concerned the investigating officer’s notes.

[10] As well, during the Appellant’s appearance on 02 May 2018, the following exchange occurred on p. 2:

THE COURT: What are you missing, sir?

MR. ARSENIJEVICH: I’m missing his notes. I don’t have any of his notes, what he said. He says one thing – any background, any of that.

And further on p. 6:

THE COURT: All right and we have before us Mr. Arsenijevich, come forward sir. Okay so I understand copies of the officer’s notes, Mr. Crown, you are providing them.

MR. PATTERSON: Providing those to the Defendant now, Your Worship.

THE COURT: I’m noting on the court record that the notes provided in court.

MR. ARSENIJEVICH: It’s a lot less than having transcripts.

THE COURT: Well that’s because when you have trial, officers and Defendants say more when they’re asked questions.

MR. ARSENIJEVICH: And it’s not the same things I was provided last time. This is the first time I’ve seen this.

THE COURT: Well, so you were provided disclosure before.

MR. PATTERSON: Interesting comment.

MR. ARSENIJEVICH: Not this.

THE COURT: You were provided disclosure before.

MR. ARSENIJEVICH: Not this.

[11] There is no record of a request for disclosure of the radar manual. The Respondent denies this was ever requested. The record does not support the Appellant’s claim that he was not fully heard on this issue. The prosecutor and the Court responded to the disclosure claim that was made on the record. No complaint can be taken with the fulfillment of the disclosure requested (officer’s notes), or the trial justice’s handling of this issue.

[12] The complaint that the Appellant was not fully heard also related to his wish to call the investigating officer to testify during his case. Initially, the officer had testified for the prosecution. The Defendant was asked by the Court if he wanted to ask questions of the officer on p. 15 of the transcript. The following exchange took place, beginning on p. 14:

THE COURT: Okay. Branko…[^2]

BRANKO ARSENIJEVICH: Yes.

THE COURT: …you have the opportunity…

BRANKO ARSENIJEVICH: No questions.

THE COURT: …at this…

BRANKO ARSENIJEVICH: No questions.

THE COURT: Oh, no questions.

BRANKO ARSENIJEVICH: No questions.

Consequently, the officer was excused. Then, when the Appellant was asked if he wanted to call any evidence he began to question the Court about whether he has a right to a fair hearing. The prosecutor interjected that it was inappropriate to “cross-examine” the Court. Ultimately, the Appellant decided that he wanted to call the investigating officer to testify, again. This request was refused by the learned Justice of the Peace.

[13] On appeal, the Appellant explains that he was confused when he was first asked about questioning the officer. The record does not reflect any such confusion. The Appellant interrupted the Court before it could even be asked if he had any questions for the officer. The Appellant stated no less than three times, “No questions.”

[14] Moreover, the Court asked whether the Appellant had ever summoned the officer as a witness. The Appellant confirmed that he had not. While it may have been appropriate, given that the Appellant was unrepresented, to have permitted the Appellant to re-call the police officer to testify, as part of the Appellant’s case, there does not appear to have been any error on the record made by the learned trial justice in refusing the Appellant’s unusual request. Moreover, no reason was given by the Appellant to explain his decision not to question the officer after he had testified in chief.

[15] The right to re-call a witness is discretionary. There was no reason offered for the failure to question the officer when asked, nor any reason for the apparent change of mind. Instead, the Appellant decided to question the Court about whether or not he was entitled to a fair trial, without giving any indication of what he meant by that. Moreover, once the learned Justice of the Peace made her ruling, the Appellant replied: “Back to, back to appeals.” This remark was unfortunate and provocative, yet the trial justice did not rise to take the bait.

[16] At the bottom of p.19 of the transcript of the Appellant’s trial, he was asked if he wanted to call any evidence and the Appellant responded:

BRANKO ARSENIJEVICH: Nothing. There’s no, there’s no evidence…

THE COURT: Okay.

BRANKO ARSENIJEVICH: …to offer considering that the – my question is not being answered.

It appears as though the Appellant was again referring to his question to the Court about trial fairness.

[17] This excerpt demonstrates that there was no unfairness in the process of the Appellant’s trial. The learned Justice of the Peace exercised tact, patience, and fairness throughout the proceedings. Indeed, during submissions before me, the Appellant agreed that the Court was polite and appeared to be fair at all times.

[18] The Appellant cannot now complain that he was not heard at trial, on the basis of his decisions and his refusal to avail himself of the opportunities given to him to be heard.

[19] This ground of appeal fails.

[20] With respect to the Appellant’s complaint that the prosecutor (not Ms. Cahill) fabricated information about him and made threats to have him removed from the proceedings, I have several observations to make.

[21] First, the prosecutor called the Appellant, “obstructionist.” Based upon the submissions made before me, this single remark was the extent of this ground of appeal. Again, this was a contested matter, and the prosecutor’s characterization was unfortunate. The Appellant appears to have been asserting his constitutional rights, with his limited ability given his lack of formal legal training.

[22] Second, although the prosecutor mentioned the Court’s ability to have the Appellant removed, this was never sought. Moreover, the Court never took this step or even responded to this comment when it was mentioned.

[23] Third, the entire context in which the prosecutor’s remarks were made lends support for the view that this was not an ordinary proceeding. The Appellant refused to enter his plea at the start of the trial, but rather insisted on asking: “Are you charging a man or a legal person? Who are you charging?” He repeated this on three occasions when addressed by the Court and ended by saying, “I’m not going [to] enter…[a plea]” On that basis the not guilty plea was entered on his behalf. As well, the Appellant insisted that he not be called “sir;” instead, he wanted to be called “Branko.” And, as already noted, the Appellant changed his mind after stating three times he had no questions for the officer.

[24] In this context, though unfortunate, the prosecutor’s remarks are understandable.

[25] Lastly, it must be determined whether or not this gives rise to a ground of appeal. There is nothing in the record that indicates any disrespect, or lack of consideration on the part of the trial Court occasioned as a result of these remarks. The Court maintained composure in these unusual and trying circumstances. There is no acknowledgment of the prosecutor’s remarks, but they cannot be said to have been adopted by mere silence. Rather, the learned justice at all times tried to address the Appellant as he had asked, and with respect. The prosecutor’s remarks had no bearing on the process or the outcome of the trial.

[26] This ground of appeal fails.

Constitutional Concerns

[27] The disclosure issue has largely been addressed. The trial Court was not given full information about the claimed incomplete disclosure. There was no proper record of the disclosure request or any response. The Court made no error in law in dismissing this claim, especially in light of the Appellant’s submission on p. 12 of the trial transcript that he was “in error” when he indicated that he had not received the officer’s notes.

[28] The Appellant has also alleged that his s. 11(b) Charter right has been violated. Unfortunately, the Appellant has not provided all of the transcripts to properly adjudicate this ground of appeal. The Appellant explained during submissions that he only believed he had to provide transcripts of the trial, not other appearances. However, this claim is undermined by the fact that the Appellant has provided transcripts of 08 February 2017, 02 May 2018, and the brief appearance in another court on 14 August 2018.

[29] The Appellant submits that he can obtain the missing transcripts and “there is no expiry on the truth.” I agree.

[30] However, several observations need to be made.

[31] This case involves a speeding trial. The Appellant has successfully appealed an earlier conviction. There was no written application for Charter relief filed on the trial. The Appellant has failed to provide a proper evidentiary foundation for his application at trial and upon appeal.

[32] Also, when the court asked the Appellant if he was ready to proceed on his re-trial, in May, after having received the officer’s notes, the following exchange took place at p. 7:

THE COURT: …Are you wanting to set a trial date, sir, another date for trial? Or are you ready to proceed today?

MR. ARSENIJEVICH: I don’t have a choice. No I’m not ready to proceed, I don’t have a choice. I’ll appeal this again but I’m ready for a trial.

THE COURT: There’s nothing to appeal because you haven’t had a trial today so we will give you another trial date. Is there a better month that we can look at for you?

MR. ARSENIJEVICH: Well I got to go away to see my daughter in east coast, west coast, I’m sorry.

THE COURT: So tell us the month that you would like us to look in.

MR. ARSENIJEVICH: I’m trying to figure it out. I’m trying to figure it out, I’m thinking out loud.

THE COURT: Sure.

MR. ARSENIJEVICH: That’s it.

THE COURT: We can offer – we have court time in May even.

MR. ARSENIJEVICH: No, no. I’ve been here too many times already, it’s just I’m losing time for work, I’m losing money. August.

THE COURT: All right. We can check in August.

MR. ARSENIJEVICH: August is pretty good. On top of my head is August.

[33] It does not appear on the record before me that the Appellant has been diligent at all times in protecting this right.

[34] In the end, I have to decide this appeal upon the grounds on which it was argued. There is a dearth of evidence upon which to find any violation of the Appellant’s s. 11(b) Charter right. On the face of it, there is no merit to this argument.

[35] Accordingly, the constitutional grounds of appeal also fail.

[36] This appeal is dismissed.

Released: 15 February 2019

Justice G. Paul Renwick

[^1]: I was advised during submissions that an appeal of the initial conviction was granted on 15 December 2017. [^2]: At the start of the trial, the Appellant insisted that he wanted to be addressed by his first name. The Court obliged this request.