R. v. Kallish, 2011 ONCJ 61

Citation: R. v. Kallish, 2011 ONCJ 61 In the matter of Her Majesty the Queen in Right of Ontario and Zachary Kallish Before Justice of the Peace Donald Dudar on December 16, 2010 Decision and Reasons Issued January 17, 2011 A. Bruno........................................................................................................... for the prosecution D. Moore................................................................................................................... for the defence Statutes and Regulations Cited Highway Traffic Act, R.S.O. 1990, c. H.8, as amended (“HTA”) Cases Cited R. v.

Costoff, [2010] O.J. No. 1261 R. v. Raham, 2010 ONCA 206 , [2010] O.J. No. 1091 R. v. Morris (1994), (BC SC), 32 C.R. (4th) 191 (B.C.S.C.) R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742; (1991), 63 C.C.C. (3d) 397 (S.C.C.) Witnesses John Rosa, police officer employed by the Ontario Provincial Police and assigned to the Caledon detachment Zachary Kallish Eliki Karayan, proposed and eventually admitted as expert witness for the defence Andy Singh, civilian, character witness for the defence Background 1.

Zachary Kallish is charged under s.172(1) of the HTA with the offence of stunt driving, to wit operating a motor vehiclewhile on a highway at a speed of 164 kilomtres per hour in a posted 80 kilometre per hour zone. 2. Section 172(1) of the HTA provides “No person shall drive a motor vehicle on a highway in a race or contest, whileperforming a stunt or on a bet or wager. 2007, c. 13, s. 21.” 3. Sub-section 3(7) of Ontario Regulation 455/07 defines “stunt”, as “Driving a motor vehicle at a rate of speed that is 50kilometres per hour or more over the speed limit.”

4 . R. v. Raham found at paragraph 51 that the offence of stunt driving as defined by ss3(7) of the Regulation, is an offence of strict liability. 5 . At paragraphs 47 and following, the Court explained: A due diligence defence to a strict liability charge amounts to a claim that the defendant took all reasonable care to avoid committing the offence with which he or she is charged. Where the accused contends that he or she operated under a reasonable misapprehension of the relevant facts, the due diligence defence takes the form of a reasonable mistake of fact claim. As explained in Sault Ste.

Marie, at p. 1326: [T]he doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. 48 The due diligence defence relates to the doing of the prohibited act with which the defendant is charged and not to the defendant's conduct in a larger sense. The defendant must show he took reasonable steps to avoid committing the offence charged, not that he or she was acting lawfully in a broader sense… Decision 6 .

For the reasons set out in the following paragraphs, the Court finds that the prosecution has established a prima facie case against the defendant. However, the defendant not introduced a defence of due diligence, but rather has succeeded in establishing the defence of necessity, and accordingly, the Court dismisses the charge against the defendant. The Evidence 7 . The facts surrounding the charge are not in dispute.

They establish that on the date, time, and at the location specified, the defendant was operating a motor vehicle – in this case a motorcycle – at a speed of 164 kilometres per hour in a posted 80 kilometre per hour zone. 8 . In addition to these facts, Mr. Kallish asserted that he was compelled to do this out of necessity. Specifically, he asserted that, while travelling on that

section of Highway 10, he observed a red mini van type vehicle approaching from behind. Mr. Kallish indicates he was in the left of two lanes of travel, and was occupying the “right track”, being the part of that lane where normally the wheels on the right side of a car would travel. As the van drew alongside and its driver’s side mirror came in line with the front wheel of the motorcycle, the van began either to drift into the lane occupied by the motor cycle or the change lanes into that lane. Being concerned, Mr.

Kallish manoeuvred his motorcycle into the “left track” but became increasingly concerned as the van continued to encroach on his position. In order to protect himself from imminent injury, he then accelerated rapidly to move ahead of and away from the van. 9 . By coincidence, this was the exact time and location that Cst. Rosa was conducting speed enforcement. Cst. Rosa effected a traffic stop and laid the charge, subsequently impounding the vehicle and implementing the seven day licence suspension pursuant to the HTA . 10 . Mr.

Kallish claims that he was extremely upset by the events prior to the traffic stop, and told the officer of the source of his consternation, claiming he pointed to the now passing van and claiming that the driver almost drove him off the road. Cst. Rosa claims he did not recall any mention of the events Mr. Kallish describes, however, he did concede that Mr. Kallish may indeed have mentioned them. 11 . In fact, Mr. Kallish claims that, after the events of that day, he was so upset that he never again rode the bike and indeed has sold it. 12 .

The defence called two further witnesses, one as a proposed “expert” and the other a character witness for the defence. 13 . Eliki Karayan was the proposed “expert”. She is qualified as a motorcycle trainer and tester, as well as a trainer an evaluator of motorcycle trainers and testers. She is qualified to conduct M1 and M2 exit exams. She has been qualified both the Ontario Ministry of Transportation as well as with the Rider Training Institute, which is also qualified to conduct driver evaluations. She provides new rider instruction on behalf of Honda Canada.

In addition to her work as an independent contractor in the field, she performs volunteer work with motorcycle riders. Her work encompasses both racing as well as motorcycle safety. Most importantly, for the purposes of this proceeding, she understands her role in providing independent assistance to the Court in assessing the actions of the defendant. 14 . In her view, there are two options available to a motorcycle operator in the circumstances described above. Mr.

Kallish could brake or accelerate, however, as he would have a clearer line of sight to the front, it would make more sense to accelerate to escape the danger. Under cross examination, she admitted that moving to the left shoulder might be considered an option, however, she also opposed it for the reason that she could not be sure whether the drive of the van, who already demonstrated a lack of awareness of the motorcycle, might continue to encroach further; in addition, there might be gravel on the shoulder, making such a move more dangerous. 15 . In her view, the dangers of failing to act would be severe. 16 .

Continuing under cross examination, she did give evidence that it might be possible to stop acceleration after establishing a distance of at least one hundred metres from the encroaching vehicle, and then manoeuvring the vehicle to the right shoulder.

17. Andy Singh has served as Mr. Kallish’ sergeant in the Armed Forces, where Mr. Kallish is currently employed. He hasknown Mr. Kallish for a length period of time, and reports that Mr. Kallish enjoys a reputation for being responsible and trustworthy. Defence Submissions 18. The defence admits the actus reus of the offence but asserts that the defendant acted out of necessity. The defence relies onthe principles, perhaps best summarized in paragraphs 17 and following in R. v. Costoff: 17 The defence of "necessity" is set out in R. v. Perka (SCC), [1984] 2 S.C.R. 232.

There are three elements to thedefence 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 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 evidencesufficient to give an air of reality of each of the three requirements. Having considered the evidence in this case and the applicable law, Iam satisfied 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. L.S. [2001] B.C.J.

No. 3062, 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 Regina v. Latimer 2001 SCC 1 , [2001] S.C.J.

No. 1, 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) 19. In the event the Court recognizes Ms. Karayan as an expert and admits her evidence accordingly, then this evidence givesfurther support to the decision made on the road on the date of the events in question. 20.

Finally, the evidence of Andy supports the conclusion that the defendant is not given to rash decision making and lendscredibility to his assessment of the circumstances on the day of the events. Crown Submissions 21. The Crown holds that is has made out the elements of the charge and that no defence of due diligence has been made out. 22. Further, the Crown contests that Cst. Rosa did not himself observe any red mini van on the scene. Moreover, Mr. Kallish didnot mention, according to Cst. Rosa the red van nor did he appear to be upset by the events preceding the traffic stop. Analysis and Conclusions 23.

The Court, as indicated above, finds for the defence. 24. As a starting point, it is clear that the allegations going to the actus reus are not in dispute. 25. The question is whether there is an “air of reality” to the defence of necessity. In my view, this can be the only conclusionavailable to the Court. Per R. v. Morris (1994), (BC SC), 32 C.R. (4th) 191 (B.C.S.C.), necessity is available as a defence to charges underprovincial regulatory statutes including absolute liability offences as the defence operates to excuse the actus reus of the offence. 26.

In regard to the issue of the proposed expert witness and opinion evidence, the Crown objected to their admissibility on thesole basis of not having been given notice in advance of the intent to call such evidence, which the Court rejected. While the Crown mayhave been surprised by the defence introduction of a proposed “expert” witness, it did not request an adjournment to review the proposedtestimony, nor to consider whether any rebuttal evidence might be required.

While the defence is not required to provide advance noticeof its intention to call such expert evidence, it was certainly open to the Crown to request an adjournment to weigh its options. 27. That said, the evidence of Ms. Karayan is undisputed. The Court is satisfied – based in large part on the un-contradicted

evidence of the witness - that the operation of a motorcycle is sufficiently unique and outside the experience of the Court as to be helpful in assessing he evidence before the Court. Further, the Court is satisfied that Ms. Karayan is sufficiently knowledgeable both of those unique elements as well as her need to provide un-biased evidence to the Court – that she is qualified as an expert. 28 .

The only contentious issue is whether there was a red mini van on the road that day and whether that vehicle was in fact encroaching on the location of the motorcycle operated by the defendant so as to create a danger of sufficient gravity to necessitate the action taken. 29 . The Court began by assessing the credibility of the defendant himself, whose evidence was clear and unembellished. It is clear that, even on the day of these proceedings, he was troubled by his recollection of the events that day. He clearly admitted to driving at an extremely high rate of speed. 30 .

He claims that he considered options and acted in the only safe way he could. He further claims that, when stopped, he was distraught and physically shaken by the events, and the he reported this to Cst. Rosa. 31 . Cst.. Rosa did not recall observing a red van on the road that day at that time. His indication that if there had been another vehicle speeding he would have attempted to stop it is not inconsistent with the defence evidence that there was such a vehicle present; simply, the officer did not observe or note the presence of such a vehicle at that time. 32 . Further, the evidence of Cst.

Rosa is diminished by his apparent ambition to obtain a conviction in this matter. For example, he made observations about his belief that speeding motorcycle operators often fail to stop when directed by a police officer to do so. That evidence had no bearing in this case. 33 . Under cross examination, he was obstreperous and resisted answering questions that seemed to the Court to be clear and unambiguous. 34 . Simply, he seemed motivated to provide only evidence supportive of the Crown’s case and not content to place all the evidence before the Court and allow the Court to make a fully informed decision. 35 .

Accordingly, in view of all of the evidence, I find that there was a red mini van that appeared on the road at the relevant time and caused Mr. Kallish to be fearful of imminent danger. 36 . The remaining question has to do with the reasonableness of the actions to evade the danger. 37 . The only evidence available to the Court is the un-contradicted evidence of the defendant and the expert witness. 38 . Weighing this objectively, the Court must consider whether the actions taken were proportional to the danger presented. 39 .

While the court itself may wonder whether this is the case, there is no factual or evidentiary basis for any other outcome. 40 . Had the Crown, after weighing the intended defence evidence, had sought an adjournment to prepare rebuttal evidence, it might have been able to establish beyond a reasonable doubt, that the action was excessive. 41 . For example, might have had other options. For example, the speed of 164 kilometres per hour was simply un-necessary and excessive, making it disproportionate in the circumstances.

Alternately, the defendant may have carried on the excessive speed for too great a distance, without justification. The defendant may have failed to pull to the side of the road and stop, possibly collecting information about the encroaching vehicle and reporting the dangerous behaviour of the driver for investigation. 42 . However, no such evidence was elicited, either through rebuttal evidence of more comprehensive cross examination of the defence witnesses. 43 . Even if the Court is in error in recognizing Ms.

Karayan as an expert and admitting her opinion evidence, the Court would also conduct the analysis required pursuant to R. v. W.(D.) . Even if the evidence of the defendant were not sufficient to result in an acquittal, it certainly gives rise to a reasonable doubt with respect to the Crown evidence and an acquittal would be ordered. Issued Town of Caledon 17 January, 2011 HW Donald Dudar