r v. EUGENE RODOS, 2022 QCCQ 5740

Director of Criminal and Penal Prosecution c. Rodos 2022 QCCQ 5740 COUR DU QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF QUEBEC CITY OF QUEBEC Criminal and Penal Division No: 200-61-244362-214 Date: September 1st, 2022 ______________________________________________________________________ PRESIDING JUSTICE OF THE PEACE JEAN-GEORGES LALIBERTÉ ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTION Prosecutor v.

EUGENE RODOS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The defendant, Mr. Eugene Rodos, is charged with driving a motor vehicle on December the 27th at 5:56 p.m. [1] at a speed of 150 km/h while the maximum speed limit is 100 km/h. Without admitting to speeding, he presents a defence of necessity. [ 2 ] The Tribunal must therefore answer two questions: how fast is the defendant travelling and, if he is exceeding the speed limit, is his defence admissible?

From the evidence presented, the Tribunal finds the following: [ 3 ] The defendant, who lives in Toronto, drives eastbound on Highway 40 near Cap-Santé. His two very young daughters are sitting in the back seat. He is travelling at 115 km/h. Traffic is almost non-existent and it is already dark at this time of the day. [ 4 ] A vehicle arrives behind him with headlights that blind him. This vehicle follows him for a few minutes from a distance of 5 to 10 metres. [ 5 ] Worried, he slows down to about 80 km/h, leaving the way clear for the other vehicle to pass him.

Nonetheless, the car remains behind at what he considers to be a very short distance. [ 6 ] This went on for a short period of time and, now frightened and fearing for his safety and that of his children, Mr. Rodos decides to increase his speed in order to get away from the other vehicle. [ 7 ] He suddenly sees flashing lights. He immediately pulls over on the shoulder of the highway and recognizes a Sûreté du Québec (“SQ”) patrol car. He is both relieved and shocked. After about 5 minutes, during which time the policewoman checks with her station, she comes to Mr.

Rodos. [ 8 ] The defendant admonishes her severely and expresses his fear and anger at the way the interception was carried out.

He says that he thought he was being followed by someone dangerous and that he did not want to stop on the shoulder for fear of being assaulted. [ 9 ] After being served with the statement of offence, he immediately goes to the nearest SQ station, in Cap-Rouge, to protest to the supervisor about this interception, which he considers cavalier and dangerous. [ 10 ] During the trial, Officer Huard explains that when she first sees the defendant's vehicle in front of her, nothing in particular catches her attention.

She still wants to check the license plate number, but the response is slow in coming, as it is issued by the Ontario authorities. [ 11 ] She has to drive close to the vehicle because the debris of the road makes it difficult to read.

She estimates this distance to be about 15 metres, or one and a half times the length of her vehicle, a Ford Explorer. [ 12 ] She figures the time from when the defendant's vehicle accelerates from 80 km/h to when she intercepts it to be approximately 10 seconds. [ 13 ] She states that she reaches 170 km/h to catch him and that her measurement of the speed of 150 km/h is done over one kilometre.

ANALYSIS [14] The Court considers that some of the police officer's estimates are unrealistic. A Ford Explorer SUV is not nearly 15 metres(nearly 50 feet) long. She is therefore following the defendant's vehicle very closely. [15] Similarly, it certainly takes much longer than 10 seconds to go from 80 km/h to 170 km/h, drive one kilometre at 150 km/h andthen come to a complete stop behind the intercepted vehicle.

Therefore, this series of events extends over a longer period of time and issufficiently long to cause the defendant concern. [16] Nonetheless, the measurement of 150 km/h leaves no doubt in the mind of the Tribunal, especially since the defendant does notpresent any evidence that would lead to a different conclusion. The Court understands that Mr.

Rodos is too alarmed by the situation tobe concerned about the speed at which he is driving to lose his pursuer. [17] The policewoman's assessment is made over a distance of approximately one kilometre using the calibrated and certifiedspeedometer of her vehicle, with approximately 30 metres separating the two vehicles. [18] Given this, does the defence of necessity introduced by the Supreme Court in Perka[2] apply in this case?

Let us recall, with thehelp of this excerpt, the nuances that must be brought to bear on its conception: With regard to this conceptualization of a residual defence of necessity, I retain the skepticism I expressed in Morgentaler, supra, atp. 678. It is still my opinion that, “[n]o system of positive law can recognize any principle which would entitle a person to violate the lawbecause on his view the law conflicted with some higher social value”. The Criminal Code has specified a number of identifiablesituations in which an actor is justified in committing what would otherwise be a criminal offence.

To go beyond that and hold thatostensibly illegal acts can be validated on the basis of their expediency, would import an undue subjectivity into the criminal law. Itwould invite the courts to second-guess the legislature and to assess the relative merits of social policies underlying criminalprohibitions. Neither is a role which fits well with the judicial function. Such a doctrine could well become the last resort of scoundrelsand in the words of Edmund Davies L.J. in Southwark London Borough Council v. Williams, [1971] Ch. 734, it could “very easilybecome simply a mask for anarchy”.

Conceptualized as an “excuse”, however, the residual defence of necessity is, in my view, much less open to criticism. It rests on arealistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience oflaws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impeldisobedience.

The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable.Praise is indeed not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle inthe Nicomachean Ethics, supra, at p. 49, “overstrains human nature and which no one could withstand”. [19] More recently, our Court of Appeal reiterated the three conditions that must be present before deciding on its application[3]: [22] A recent application of the defence of necessity can be seen from the judgment of Bourque, J. of the Ontario Court of Justicein R. v.

Costoff.[11] He described the analytical framework a trial judge must adopt when the defence of necessity is raised in thefollowing manner: 17 The defence of "necessity" is set out in Perka v. R., (SCC), [1984] 2 S.C.R. 232 (S.C.C.). There are three elementsto the defence of necessity: ● Imminent danger and peril. ● No reasonable legal alternative to what the defendant did. ● A relationship between the harm inflicted and the harm avoided. 18 For the defence to be successful, I must have a reasonable doubt about each of these elements.

Where an accused places before thecourt sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt (R. v. Gyetvan, [2005] O.J. No.5813 (Ont. C.J.) para 18: The state of the law, therefore, is that for the necessity defence to prevail, the trial judge must be satisfied that there is evidence sufficientto give an air of reality of each of the three requirements.

Having considered the evidence in this case and the applicable law, I amsatisfied that the evidence here is sufficient to give an air of reality to each of these requirements. 19 In a significant review of the law in R. v. S. (L.), [2001] B.C.J. No. 3062 (B.C. Prov. Ct.), the justice observed at para 25: Generally, if there is clear evidence that the accused, or someone under his or her protection is at an immediate risk of physical harm, ifno reasonable alternative is available and, if the driving is for no longer than is necessary to escape the harm, the defence of necessitywill succeed. 20 In R. v.

Latimer, 2001 SCC 1 , [2001] S.C.J. No. 1 (S.C.C.), the court observed that the standard is a modified objective testwhich takes into account the situation and characteristics of the particular accused: The accused person must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril thatleaves no reasonable legal alternative open. (para. 33)

I agree with that statement of the law . [ 20 ] This defence is regularly applied in Quebec Penal law [4] . What is the situation in this case? [ 21 ] There is no doubt that there is immediate danger in a person's honest and reasonable judgment. This is the holiday season, a time when more drivers are likely to be impaired. It is already dark, traffic is almost non-existent and there is only one other car behind whose driver persists in following the defendant. [ 22 ] There is no other reasonable solution or alternative available to him.

He tries to slow down below the speed limit on the highway, inviting the other driver to overtake him, but to no avail; he remains stuck behind. Stopping on the shoulder to face the unknown is reckless. The defendant is the only adult in the car, his two young children are in the back seat and he is a long way from home. [ 23 ] Is there a relationship between the offence and the harm avoided? The Court also answers affirmatively. A speed of 150 km/h is potentially dangerous, but the weather conditions are good, the road is dry and the sky is clear even though the highway is not lit [5] .

The two vehicles are practically alone on the road, reducing the danger of a collision to almost nothing. [ 24 ] The conduct of the SQ police officer therefore excuses Mr. Rodos' reaction. On the other hand, the Court cannot ignore his admission that he is driving at a speed of 115 km/h prior to the series of events that gave rise to this charge.

FOR THESE REASONS, THE COURT : [ 25 ] ACQUITS the defendant of the offence as charged; [ 26 ] FINDS THE DEFENDANT guilty of the offence of having driven a motor vehicule at 115 km/h in a 100 km/h zone; [ 27 ] CONDEMNS the defendant to a fine of $45 plus the legal fees; [ 28 ] GRANTS the defendant three (3) months to pay this amount. __________________________________ Mr. JEAN-GEORGES LALIBERTÉ, PRESIDING JUSTICE OF THE PEACE Me Marianne Harvey, DPCP Prosecutor The defendant is not assisted by counsel Hearing date : May 24 2022