DATE : October 26, 2022 ONTARIO COURT OF JUSTICE Toronto Region

B E T W E E N:

HIS MAJESTY THE KING

v.

MATTHEW TYITYAN

REASONS FOR JUDGMENT

Remote hearing date: October 3, 2022 Judgment: October 26, 2022

Representatives: Mr. A. Smith, Prosecutor, Ministry of the Attorney General Mr. A. Mocanu, Paralegal for the Defendant

INTRODUCTION:

[1] The defendant, Matthew Tyityan, was charged on June 26, 2020 with drive a motor vehicle on a highway while performing a stunt to wit: speeding 154 km/hr in a posted 100 km/hr zone, contrary to s.172(1) of the Highway Traffic Act, R.S.O. 1990, c.H.8 (the "HTA"), which is a Part III offence under the Provincial Offences Act, R.S.O. 1990, c.P.33 (the "POA"). This charge was contained within Information No. 4862 999 20 20200399 00.

[2] On behalf of the defendant, Mr. Mocanu entered a plea of not guilty.

EVIDENCE OF OFFICER:

[3] Police Constable Matt Prikken, Ontario Provincial Police (“OPP”) testified at this trial.

[4] P.C. Prikken testified that he was employed by the Province as a police officer on June 26, 2020, and that he investigated this matter.

Use of Notes to Refresh his Memory:

[5] P.C. Prikken asked for permission to use his notes to refresh his memory, and stated that he had an independent recollection of the matter and wished to use his notes to refresh his memory for specific details. He indicated that he made his notes during and immediately following the incident.

[6] During cross-examination on this point, P.C. Prikken testified that his notes were in his possession at the Niagara Falls OPP detachment’s locked facility or in his own possession at all times. When asked, he indicated that anyone employed at that site has access to the cabinet which contains the notebooks.

[7] When asked by Mr. Mocanu if he reviewed his notes prior to testifying at this trial, he indicated that he had in order to refresh his memory for specific details. Mr. Mocanu objected to his request to use his notes at this hearing, stating that the need to review them prior to testifying indicates that he does not have an independent recollection.

[8] Mr. Smith argued that the police are permitted to do so, and referred to the Supreme Court of Canada’s judgment in R. v. Fliss, 2002 SCC 16.

[9] After hearing both submissions, I ruled that the officer testified clearly that he had an independent recollection of the events, and that he was permitted to use his notes to refresh his memory, adding that if I had any concerns during the trial, it would go to his credibility and the reliability of his evidence.

Officer’s Testimony:

[10] P.C. Prikken testified that on Friday, June 26, 2020, he was on general patrol in the Toronto area. At 8:26 pm, he was sitting on the right shoulder of Highway 427 southbound, just south of Highway 401. He described Highway 427 as having three lanes northbound and three lanes southbound and that it is divided by a concrete barrier. He added that he observed the posted speed limit was 100 km/hr.

[11] He observed a vehicle travelling very quickly, in the middle lane, describing it as “extremely fast”. He activated his rear antennae Genesis II, and obtained a reading of 154 km/hr in the posted 100 km/hr zone. He said that the speed recorded on this radar device was consistent with his observations.

[12] P.C. Prikken testified that the defendant was operating a grey Nissan motor vehicle. P.C. Prikken said that he never lost sight of this vehicle. He added that he pulled this vehicle over on Highway 427 just north of Burnhamthorpe Rd.

[13] The driver of this vehicle identified himself with an Ontario driver’s licence, in the name of the defendant, Matthew Tyityan, with a date of birth of December 6, 2020. P.C. Prikken was satisfied that the digital photograph on this driver’s licence matched the driver's appearance.

[14] The defendant was given his rights to counsel and cautioned. He was polite and cooperative. P.C. Prikken said that the defendant's driver's licence was suspended and that his vehicle was impounded.

[15] P.C. Prikken testified that this vehicle was a Nissan, grey in colour, with an Ontario licence plate of CKKJ434.

[16] P.C. Prikken gave the defendant a Part III summons for stunt driving. He indicated that this occurred in the City of Toronto.

[17] P.C. Prikken testified that he is trained and qualified to operate a radar speed measuring device, having been first qualified in 2008, and re-qualified again in August 2018. He added that he tested this device at the outset of his shift and again at 18:41 hours on June 26, 2020. He described the steps he took to test the device. He added that the device self-tests every 15 minutes and was functioning properly that day.

[18] P.C. Prikken testified that there were no obstructions at any time between himself and the defendant's vehicle.

Cross-Examination:

[19] P.C. Prikken testified that when he first observed the defendant's car, it was behind him, and that when he saw this vehicle, he activated his vehicle's rear antennae. At this time, P.C. Prikken was on the right shoulder of Highway 427 southbound, just sound of Highway 401. He made his observations using the rear and side mirrors of his vehicle.

[20] The traffic at this time was moderate. There were other vehicles on the road with the defendant's vehicle, but P.C. Prikken said the defendant's vehicle was "noticeably faster" than the others around him, which were to the defendant's left and right. He stated emphatically that the defendant's vehicle was "very fast" and that it was passing the other vehicles in the centre lane.

[21] When asked if this radar device can pick up other objects, he testified that it has a range, and that this device is focussed, so that it goes to the fastest vehicle first. It gives two vehicle readings. The officer compares their "visual" to the speed received. Based on his observations, P.C. Prikken said it was easy to pick up the speed.

[22] When asked if there is any "bend" in the road which would impact his ability to see the defendant, P.C. Prikken stated that Highway 427 bends to the left, and then to the right, but that he was situated on the right shoulder of this highway, past the second bend in the road, about 200 metres sound of the bend.

[23] He said that the defendant's car was past the bend on the straight stretch heading southbound on Highway 427 when he observed this vehicle.

[24] In terms of his qualifications to use this radar device, P.C. Prikken testified that he was retrained in August 2015, August 2018, and again in August 2022. He began his training on this equipment in 2008 when he started working. He testified that they are normally retrained every two to three years, and that he was just retrained again in August 2022. When asked about the recent one year delay, he attributed it to COVID-19. Part of his training includes an observation test, verified by a different officer, in which he must be able to estimate the speed of a vehicle and be accurate within 10 km/hr.

[25] P.C. Prikken testified that he first observed this defendant in his rear view mirror and his side mirror. At this time, the defendant's vehicle was past the bend, in the centre lane, where Highway 427 is straight.

[26] He based his determination on the speed at which he observed the defendant travelling, and then activated the device, heard the tone and locked it in.

[27] During cross-examination, he was asked about his testimony that the defendant's vehicle was 200 metres from the bend in Highway 427. Specifically, he was asked how long does it take for a car to travel 200 metres at the rate of 154 km/hr? He indicated that he had not made this calculation. Mr. Mocanu asked him to do the calculation involved. The Prosecutor objected and said it was speculative. I ruled that if the officer had not already done this calculation, I was not requiring him to do so now, and asked Mr. Mocanu to move on.

[28] This concluded the cross-examination, and there was no re-direct conducted.

[29] Mr. Mocanu did not call any evidence for the defence.

SUBMISSIONS:

Submissions by the Defence:

[30] Mr. Mocanu argued that the radar device used is capable of picking up objects, and it is set to pick up the fastest moving object. The officer testified that he observed the defendant from his rear and side mirrors. He submitted that a vehicle travelling 154 km/hr would only take a few seconds to travel that distance and that it was impossible for the officer to have an observation and confirm it with the radar device at the same time.

[31] He also argued that if the radar was re-tested at 8:41 pm, and the time indicated on the Information is 8:26 pm, this gave the officer less than 20 minutes to stop the vehicle, talk to the defendant, arrest him, wait for the tow truck to impound the vehicle, and then retest his radar equipment. Again, Mr. Mocanu argued that it was impossible to do all of this in the time indicated, and argued that an investigation takes much more time to complete. For this reason, Mr. Mocanu does not believe that the device was tested again at 8:41 pm.

[32] When the officer triggered the radar device, he testified that there were other vehicles to the left and to the right of the defendant's vehicle. The device is not triggered automatically. The other vehicles in the area could have interfered with the reading, and as such, the case has not been proven beyond a reasonable doubt.

[33] Mr. Mocanu therefore asked that the matter be dismissed.

Submissions by the Prosecutor:

[34] Mr. Smith argued that the case has been made out beyond a reasonable doubt and asked for a conviction to be entered.

[35] The officer's evidence was clear and concise, the officer never lost sight of the defendant's vehicle, all relevant aspects have been addressed within it, and there is no evidence to the contrary.

[36] There is no basis for the submissions made by Mr. Mocanu regarding the arrest at roadside and the time of the re-testing of the device. He described these submissions as being speculative and noted that Mr. Mocanu cannot testify.

Reply:

[37] Mr. Mocanu indicated that he did not offer any evidence, but only recounted the events.

Sous-Reply:

[38] Mr. Smith characterized his friend's comments as indicating that it would have been impossible for the officer to obtain the reading provided.

ANALYSIS:

[39] When P.C. Prikken was permitted to use his notes to refresh his memory, this evidence was present memory revived, as per Fliss. The distinction between present memory revived and past recollection recorded was succinctly explained by Allen, J. in R. v. Pickunyk, 2012 ABPC 318 at para. 12 as follows:

In a more recent case, R. v. Fliss 2002 SCC 16, [2002] 1 S.C.R. 535 (SCC) 536 the Supreme Court reviewed the nature of present memory revived and how it differed from the closely related, but differing concept, of past recollection recorded. Present recollection revived allows a witness to refer to a document or item for the purpose of refreshing his memory. If the memory is revived by that reference, the witness then gives his testimony. The documents or items themselves are not marked as an exhibit. Past recollection recorded arises where the witness has no present memory of the event, but recorded the memory in a document which was prepared shortly after the event that was reliable. The document is then generally marked as an exhibit in the proceedings.

[40] Section 172 of the HTA provides inter alia :

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

(2) Offence - Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine not less than $2,000 and not more than $10,000 or to imprisonment for a term of not more than six months, or to both, and in addition, the court shall make an order suspending the person's driver's licence,

(a) on a first conviction under this section, for not less than one year and not more than three years;

(b) on a second conviction under this section, for not less than three years and not more than 10 years; or

(c) on a third or subsequent conviction under this section, indefinitely.

[41] In addition, Ontario Regulation 455/07 - RACES, CONTESTS AND STUNTS, made under the HTA, provides eight distinct prohibited categories under section 3 of the definition of "stunt". I have summarized the relevant ones as follows:

3 . Definition, "stunt" - For the purposes of section 172 of the Act, "stunt" includes any activity where one or more persons engage in any of the following driving behaviours:

7.0.1 Driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit, if the speed limit is 80 kilometres per hour or more.

7.1 Driving a motor vehicle at a rate of speed that is 150 kilometres per hour or more.

[42] In R. v. Raham, 2019 ONCA 206, the Ontario Court of Appeal found at para. 33 that the HTA is a public welfare statute, and that this legislation is designed to protect those who use the roads of the province.

[43] In Raham, the Court of Appeal also found that s.172 of the HTA is a strict liability offence, at paras.37-38, and that a defendant can advance a due diligence defence to claim that they took all reasonable care to avoid committing the offence as charged, as per para. 47.

[44] Mr. Mocanu did not advance any type of common law or due diligence defence, but rather, questioned the credibility of the officer with respect to the timing of the final testing of the radar device, in relation to the timing of the defendant's arrest, and the officer's credibility in stating that he had an independent recollection of the events. Finally, Mr. Mocanu questioned whether the officer failed to distinguish between the defendant's vehicle in the middle lane of Highway 427 from the other vehicles travelling in lanes one and three, which could have interfered with the radar reading obtained.

[45] The onus is on the prosecution to prove its case beyond a reasonable doubt.

The Credibility of the Officer:

[46] In assessing the credibility of witnesses, the Supreme Court of Canada held in R. v. Gagnon, 2006 SCC 17, at para. 20 :

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events...

[47] In Faryna v. Chorny (1951), at page 357, O'Halloran, J.A. speaking for the majority of the British Columbia Court of Appeal described the approach to assessing credibility as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may be easily be self-direction of a dangerous kind.

The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divining insight into the hearts and minds of witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case. [emphasis added]

[48] I listened carefully to the testimony of P.C. Prikken. His testimony was clear and concise. He was not shaken during cross-examination, nor was he argumentative, defensive or evasive. His evidence was forthright and logical under the circumstances. His demeanour and particularly the tone of his voice both changed when he described his recollection of the said vehicle in the middle lane of Highway 427, which caught his attention because it was going "extremely fast". I find that he had a solid independent recollection of this incident and the events which followed as a result.

[49] As a result, I accept his testimony as true that when he observed the defendant's vehicle travelling at a very high rate of speed, he immediately activated the Genesis II radar equipment in the rear of his vehicle and obtained a reading of 154 km/hr in a posted 100 km/hr zone on Highway 427. I also accept that this reading corresponded to his "visual" of the defendant's motor vehicle, and that he was not in any way confusing it with other vehicles to the left and right of the defendant on this highway. Further, I accept his evidence that he did not lose sight of this vehicle, and that he promptly made an arrest of the defendant. I am content that he satisfied himself with the identity of the defendant by comparing him to the photograph displayed on the defendant's Ontario driver's licence proffered to him by the defendant himself.

[50] I also accept as true that he is properly qualified and trained to use this radar device and that his training is up-to-date and was at the time of this incident. An important part of this training includes the "observation test" he described, which requires him to be able to accurately estimate the speed of a vehicle within 10 km/hr, which is verified by a different officer.

[51] Moreover, I accept that he tested his equipment at the times described during his testimony, and decline to make the inference suggested by Mr. Mocanu that the final testing time was too close in time to the arrest of the defendant, and as such, did not occur.

[52] Based on the totality of the evidence that I have heard, I am satisfied beyond a reasonable doubt that the defendant was driving a motor vehicle bearing Ontario licence plate CKKJ434 on the date and time alleged while performing a stunt, by driving at a rate of speed of 154 km/hr in a posted 100 km/hr zone, on Highway 427, in the City of Toronto.

ORDER:

[53] A conviction is hereby ordered, contrary to s.172(1) of the HTA.

Dated at Toronto, this 26th day of October, 2022.

Mary Ross Hendriks, J.P.