Reginella v. R., 2018 ONCJ 198

CITATION: Reginella v. R. , 2018 ONCJ 198 DATE: February 15, 2018 ONTARIO COURT OF JUSTICE BENEDETTO REGINELLA - v. – HER MAJESTY THE QUEEN COURT PROCEEDINGS – APPEAL FROM PROVINCIAL OFFENCES COURT BEFORE THE HONOURABLE JUSTICE G.D. KRELOVE On February 15 th , 2018, at BARRIE, Ontario APPEARANCES: P. Krysiak Counsel for the Crown T. Walton Agent for Mr. Reginella S. Columbus February 15 2018 Krelove, J Orally: I would like to thank both parties for their very helpful submissions today. On April 27 th , 2016 Benedetto Reginella was convicted of careless driving by Justice of the Peace Burgess. Mr. Reginella appeals that conviction.

Section 138 of the Provincial Offences Act permits this court to affirm, reverse or vary the decision appealed from, or, where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial. The appellant requests that I reverse the conviction and enter an acquittal or alternatively, order a new trial. He has abandoned his request for a stay of proceedings. The appellant relies on three grounds of appeal. First, the learned Justice of the Peace erred in refusing to grant an adjournment of the trial so that disclosure could be obtained.

Two, there was a breach of his right to a fair trial because disclosure was not provided by the Provincial prosecutor, and three, the learned Justice of the Peace erred in determining that the prosecutor had established all of the necessary elements of the careless driving charge beyond a reasonable doubt. I will deal with the first ground of appeal. By way of brief background, on June 5, 2015 the appellant was charged with the careless driving offence.

On December 14 th , 2015 his agent attended at court and requested an adjournment on the basis that disclosure had been requested in July and had not yet been received. On consent the matter was adjourned to January 11, 2016 to be spoken to. On January 11, an agent once again appeared for the appellant. At that time, it was put on record that disclosure had been requested on November 23, and had not yet been received. On agreement of both parties the matter was adjourned to April 27, 2016 for trial.

On April 27, the appellant’s agent attended at court and requested an adjournment of the trial as disclosure has not yet been received. The learned Justice of the Peace denied the adjournment request mainly on the bases that the Crown witnesses were present, the Crown was ready to proceed and that the appellant had not brought an application or motion for an adjournment prior to the trial date. From my review of the transcript, I am prepared to find that the learned Justice of the Peace exercised his discretion judicially in refusing to grant the adjournment on the trial date.

He properly considered that there would be an inconvenience to witnesses as being a factor and that the appellant or his agent had not brought an application for an adjournment prior to April 27 when they realized that the disclosure had not been received. The learned Justice of the Peace did not consider any irrelevant factors in this decision. Clearly there was an onus on the appellant and his agent to follow up by way of direct contact with the prosecutor’s office long before April 27 when the disclosure had not been received.

The second ground of appeal asserts that there was a breach of the appellant’s right to a fair trial as disclosure was not received prior to the start of the trial. This ground relates closely to the first one. Once again, the appellant or his agent failed to bring an application for an adjournment prior to the trial date when disclosure was not received. The appellant or his agent did not bring an application for a stay of proceedings based on a failure of the prosecution to provide disclosure. In the circumstances here, the trial was fair. The appellant was represented.

The appellant chose not to attend the trial. I note as well considering the issues of fairness, the appellant’s agent could have renewed his request for an adjournment at the close of the prosecution’s case so that the appellant or any defence witnesses could testify. Such a request, as I mentioned, was not made. It is also interesting to note that I have not been advised as part of this appeal that even though disclosure was received subsequent to the trial, that there was something of substance in that disclosure that may have assisted the appellant in his defence. I see no merit to ground two.

Dealing with the third ground of appeal, the appellant asserts that the learned Justice of the Peace erred in determining that the prosecution had established beyond a reasonable doubt that he was driving the car when it struck the rear of the Bullen vehicle and that the totality of the evidence supported a finding that the appellant was driving without due care and attention. A brief background of the evidence at the trial assists in understanding this third ground of appeal.

At about 8:00 am in the morning, Sandra Bullen was stopped at a red light on Highway 88 where it intersects with the ramp onto Highway 400. She was stopped there for three or four seconds when her car was struck from behind. She described the impact as heavy and that she suffered a whiplash injury. Police were called and she waited for them to arrive. Constable Adam MacKay of the South Simcoe Police was dispatched to investigate at 7:58 a.m. He arrived on scene at 8:05 a.m. and commenced his investigation. He saw two vehicles that had been involved in a collision. He spoke first to Ms.

Bullen who told him what had occurred. He then went to the second vehicle and spoke to the person in the driver's seat. This person provided a driver's licence with a photo to the officer. The name on the licence was Benedetto Reginella.

The photo on the licence matched the person he was dealing with. He served that person with the certificate of offence for carelessdriving. The learned Justice of the Peace in his reasons for judgment recognized that the prosecution’s case was based upon circumstantialevidence in that in order to convict he had to be satisfied by that evidence beyond a reasonable doubt.

The learned Justice of the Peacewas aware that in order to be satisfied that the appellant was the driver at the time of the collision and that the person was drivingwithout due care and attention he had to be satisfied that the circumstantial evidence satisfied him as being the only reasonable inferencefrom the totality of the evidence. In addition, the learned Justice of the Peace made reference to the classic decision of R. v.

McIver (ON CA), [1965] 2 OR page 475 a decision of the Ontario Court of Appeal which does stand for the proposition that the factof an accident without explanation can lead to a finding that there was driving without due and attention. On the totality of the evidence, the learned Justice of the Peace was entitled to find that the prosecution had established beyond areasonable doubt that the appellant was the driver of the car that struck the Bullen vehicle from behind and that the appellant was drivingwithout due care and attention. So in conclusion the appeal against conviction is dismissed.

FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2) I, Cathy Knelsen, certify that this document is a true and accurate transcript of the recording of R. v. Reginella in the Ontario Court ofJustice, held at 75 Mulcaster Street, Ontario, taken from Recording No. 3811-09-20180215-091147 which has been certified in Form 1and as reviewed by the court. March 15th, 2018 ________________________ Cathy Knelsen, C.C.R. Transcriptionist