Court Information

Ontario Court of Justice Date: March 12, 2020 Location: Old City Hall - Toronto

Between: Her Majesty the Queen And: Petru Baci

For the Crown: S. Husband For the Defendant: C. O'Connor

Heard: November 4, 5, 2019; February 10, 2020

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. Introduction

[1] On August 6, 2018 Mr. Baci was seen by P.C. Zsofia Balazs driving in High Park. Mr. Baci was prohibited from being in High Park by virtue of a court order made pursuant to s. 161(1) of the Criminal Code on October 11, 2017.

[2] Mr. Baci testified that he entered High Park inadvertently and left immediately once he realized where he was.

[3] The parties agree that there are two issues presented in this case: (1) has the Crown proved beyond a reasonable doubt that Mr. Baci entered High Park knowing he was doing so, and, (2) if not, has the Crown proved beyond a reasonable doubt that Mr. Baci failed to leave the park with reasonable dispatch once realizing that that was where he was.

B. The Evidence

(a) Introduction

[4] Mr. Husband called only one witness in his case, and then two more in reply.

[5] Mr. Baci testified and called no other witnesses.

(b) The evidence for the Crown

[6] P.C. Zsofia Balazs was on routine patrol in High Park on August 6, 2018 when she saw Mr. Baci's car driving slowly on the road that forms a loop in front of the High Park Children's Garden just off Colborne Lodge Drive near the southwest corner of High Park. She found the rear license plate to be obscured and ran the plate number through her police data bank. She discovered that the registered owner of the car, Petru Baci, was prohibited by court order to be in any public park.

[7] She pulled the car over after it had left the park and had turned onto the Queensway. Mr. Baci was behind the wheel. She arrested him for breaching his prohibition order.

[8] P.C. Balazs has some familiarity with High Park. She described it as a large green space bordered by Bloor Street to the north, Parkside Drive to the east, and the Queensway to the south. She was unsure of the western boundary. She also testified that there are many entrances to the park, Colborne Lodge Drive, being one that enters the park from the Queensway at the southern border. While she first testified that there are signs at the entrances to the park indicating that one is entering the park, on closer examination she conceded that she did not know if there was such a sign at the Colborne Lodge entrance, although she did recall there being one near the Children's Garden. She did opine, however, that it would be obvious to anyone entering on Colborne Lodge that they were entering a park given the forested surroundings. She further opined that High Park is "notorious".

(c) The defence evidence

[9] Mr. Baci, who is a 74 year–old former professional truck driver, explained that he left his home in a northern section of Toronto and headed south along Keele Street and Parkside Drive with the intention of catching a glimpse of the Caribana parade that he believed was taking place that day, having seen it on television. It was the Monday of the August long weekend.

[10] When he got to the southern end of Parkside Drive, he intended to turn left and look for a spot to see the parade from his car in slow moving traffic. He did not intend to park or get out of his car. At the same time as he approached the southern end of Parkside where he would have to turn left towards downtown (as he originally intended), or right towards Etobicoke, he began to feel the urgent need to urinate. Mr. Baci suffers from sudden urinary urgency as a result of several bouts of abdominal surgery that have adversely affected his bladder control.

[11] Because there was a considerable amount of traffic congestion to the east, including "cruisers and barriers" he decided to turn right rather than left in search of a bathroom. He did so, then made the next available right turn. Although he testified that he wasn't sure if he was turning onto the Queensway or Lakeshore, it is abundantly clear from the layout of the roads in that area that Mr. Baci in fact turned right onto Lakeshore, then right onto Colborne Lodge, drove north on Colborne Lodge, and then crossed the Queensway and entered the park. One cannot turn right onto the Queensway while driving south on Parkside.

[12] According to Mr. Baci, he was preoccupied with his full bladder and desperate to urinate. As a result, he did not notice that he was entering High Park when he did. He said there was no sign to that effect as he approached the park on Colborne Lodge. Once it became clear to him that he had indeed entered the park, aware of the terms of his prohibition order, he immediately pulled into the small loop road in front of the Children's Garden and left the park the same way he had entered.

[13] On cross-examination Mr. Baci was questioned closely on his familiarity with High Park and its surroundings. He admitted to driving past it on many occasions as he drove professionally along either the Gardiner Expressway or Lakeshore Boulevard. He knew about the northern, eastern and southern boundaries, but, like P.C. Balazs, didn't know the western boundary. Nor did he know that to go north on Colborne Lodge was to enter the park.

(d) The reply evidence

[14] Mr. Husband called two witnesses in reply. The first, P.C. Wayne Foster testified that the only right turn available at the southern end of Parkside is onto Lakeshore Boulevard. He was wrong, however, as to the correct location of the Queensway and the Gardiner Expressway at that large intersection.

[15] The second reply witness, P.C. Arlene Duffy, testified that the Caribana parade had taken place two days earlier, on August 4, 2018, and that there were no official or emergency road closures in the vicinity on Monday August 6th. She admitted, however, that it was not unusual for Lakeshore Boulevard to be congested on the Monday of the August long weekend. She also admitted that television stations play video recordings of the Saturday parade throughout the long weekend, since Caribana is an event that takes place over the entire long weekend.

C. Analysis

[16] The law governing my approach to this case has its foundation in R. v. W.D., [1991] S.C.J. No. 26.

[17] First, the accused is presumed innocent and the burden of proof is on the prosecution throughout. To secure a conviction, the Crown must prove the allegations against the accused beyond a reasonable doubt.

[18] Second, because Mr. Baci testified, I must approach the evidence as follows: if I believe Mr. Baci's explanation for his presence in High Park, I must of course find him not guilty. Even if I do not believe him, his evidence alone, or in conjunction with supporting evidence may nonetheless, when examined in the context of all the evidence, raise a reasonable doubt. If it does, I must find him not guilty. If it does not raise a reasonable doubt, I must examine the evidence that I do accept to see if it proves the allegations beyond a reasonable doubt. If it does not, Mr. Baci must be acquitted. If it does, he must be found guilty.

[19] Mr. Husband argues that Mr. Baci's explanation of his activities on the day in question is too far-fetched to believe, or to raise a reasonable doubt. He points out that it would be unlikely that Mr. Baci would set out to spend considerable time in his car, in heavy traffic, when he suffered from urinary urgency. He further points out that the evidence as to the real date of the parade (two days earlier) makes his entire explanation for his presence in the park incredible in the extreme. This implausibility is, he argues, compounded by the fact that the route chosen by Mr. Baci didn't make sense given where he lived. He also argues that Mr. Baci, a former professional truck driver, would naturally have been quite aware of the boundaries of High Park, and more particularly that Colborne Lodge led into the park. Since there were no official road closures that day, Mr. Baci's evidence about seeing cruisers and barriers must be false.

[20] Furthermore, according to Mr. Husband, given Mr. Baci's experience living and working in Toronto, and the wooded nature of the entrance, it must have been clear to Mr. Baci that he was entering High Park when he headed north on Colborne Lodge.

[21] Mr. O'Connor points out that there was no attack by the prosecution on Mr. Baci's evidence concerning his bladder affliction, and that Mr. Baci could easily have been honestly mistaken as to the day of the parade given that he learned about it from the television and his English is far from perfect. As for the issue of barriers and cruisers, the important thing is that heavy traffic in that area on the Monday of the long weekend was not at all unusual.

[22] Mr. O'Connor concedes that while Mr. Baci's plan to drive to the Lakeshore and watch the non-existent parade from his car was ill-advised, it can't be said that Mr. Baci's evidence falls short of at least raising a reasonable doubt as to his intention when he drove into High Park.

D. Conclusion

[23] In my opinion, while Mr. Baci's plan that day was somewhat odd, I found him to be a sincere witness and his testimony came across as forthright. There is not much evidence offered by the prosecution that calls into question the fundamental thrust of his testimony. As for the absence of official road closures, I can understand how, given that Mr. Baci likely did see a lot of traffic congestion, it is possible that some police cars were immersed in that congestion. I can also understand why Mr. Baci, in retrospect honestly believing that the parade was underway, might have begun to believe that there were barriers present.

[24] Mr. Baci's testimony raises a reasonable doubt as to whether he knew he was entering High Park when he did. There is no evidence that he did not leave immediately after realizing that he had.

[25] Even if I had rejected Mr. Baci's testimony, given the paucity of evidence as to the road markings at the Colborne Lodge entrance, and P.C. Balazs's own uncertainty as to the western boundary of High Park, I would nonetheless not have been convinced beyond a reasonable doubt by the evidence presented by the prosecution.

[26] In the result the charge is dismissed.

Released on March 12, 2020

Justice Russell Silverstein