R. v. Kogan, 2011 ONCJ 58

Citation: R. v. Kogan, 2011 ONCJ 58 In the matter of Her Majesty the Queen in Right of Ontario and Mark Kogan Before Justice of the Peace Donald Dudar on January 21, 2011 in City of Welland Decision and Reasons Issued February 14, 2011 in City of St. Catharines Ann Swayze....................................................................................................... for the prosecution Edward Kocet........................................................................................................... for the defence Statutes and Regulations Cited Compulsory Automobile Insurance Act, R.S.O. 1990, c.

C.25, as amended (“CAIA”) 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. Fong (Ont. Ct. (Gen. Div.)), [1994] O.J. No. 2391 R. v. Mardave Construction

(1990) Ltd. [1995] O.J. No. 4944 R. v. Morris (1994), (BC SC), 32 C.R. (4th) 191 (B.C.S.C.) R. v. Perka, (SCC), [1984] S.C.J. No. 40 Witnesses R. Choy, police officer with the Niagara Regional Police Service M. Kogan, defendant Background 1. Mr. Kogan is charged that on the 3rd of April, 2010 in the City of St. Catharines, he was the owner of a motor vehicle andoperated that motor vehicle without insurance, contrary to s.2(1) of the CAIA. Further, he is charged on the same date, time and location,for operating a motor vehicle while holding a hand held communication device, contrary to s.78.1 of the HTA. 2. Mr.

Kogan does not contest that he committed these offences, but rather, argues that he was required by necessity to do thethings alleged, and thereby is entitled to an acquittal. The Court’s Decision

3 . For the reasons set out below, the Court finds that the prosecution has proven the elements of the charge beyond a reasonable doubt. Although neither the Crown nor defence made submissions regarding the nature of the offences, in the Court’s view the charges are both strict liability offences, meaning that once the prosecution proves the actus reus , it is open to the defence to argue a defence of due diligence. However, the defence did not lead evidence in support of this, but rather, argued that the charges should be dismissed under the principles of the defence of necessity.

The Court finds that, while the defence of necessity can apply, it has not been made out in this case, and enters a conviction. 4 . The Court invites submissions on penalty. The Evidence 5 . The evidence in relation to the actus reus in both matters is not in dispute. 6 . Mr. Kogan gave evidence in his own defence, and was subject to cross examination. 7 . In chief, he explained that he had been driven to a mechanic’s location in order to deal with an issue relating to his car. Upon arrival, he was confronted with what he describes was an ultimatum, that he remove his car or the mechanic would have it towed away.

There was no explanation as to the circumstances giving rise to this ultimatum. 8 . He indicates that he was panicking. He was beset by fears of a repeat of a recent incident in which he suffered a loss of blood, and required his wife’s assistance to stop the bleeding. He had visions of a recurrence, realized that his foot was swelling up, and became fearful that his wife and daughter would be left alone. He determined that he had no alternative but to drive away, given that he could not afford a tow truck. 9 .

He explained that the swelling is a result of radiation exposure while he was resident in Chernobyl, in the former Soviet Union. He also suffers from hemophilia and high blood pressure. 10 . During trial, an issue arose as to the admissibility of a number of documents, including printouts from the internet of materials said to describe the effects of hemophilia, and the other a letter from his physician. The Court upheld an objection by the Crown prosecutor and declined to accept either, as they were fundamentally hearsay.

That said, the Court did hear significant evidence from the defendant himself, describing his understanding of his condition, its effects and how he manages it. This management includes relying on family members for care and treatment. He also described that, in the recent past, he has had to attend a clinic where he has had bandages changed every three days. He explained that, when a suture was removed, blood started gushing out. 11 . He further explained that, prior to being stopped, he had been “driving very slowly to get to a parking lot, and he had been looking to get close to someone”.

He was using his cell phone, and indicates that – when he was stopped - he explained to the officer that he was calling for help. He further explained that he believes he appeared panicked, that he explained his terror to the officer, and that he asked to be put in touch with medical resources. 12 . Under cross examination, he claimed that during the actual traffic stop, which took well over an hour, he mentioned both his fear to the officer, and explained that he required medical attention. However, in the end, he did not go to a hospital nor did he seek any other medical assistance. 13 .

The Crown’s witness, Cst. Choi, asserted that Mr. Kogan never appeared panicked, never asked for assistance, and, in fact left when released and after making his own arrangements to have his vehicle towed. Defence Submissions 14 . Defence relies on the defence of necessity, as set out in R. v. Perka . In that case, the Court set out a … number of issues pertinent to the test for necessity. Was the emergency a real one? Did it constitute an immediate threat of the harm purportedly feared? Was the response proportionate?

In comparing this response to the danger that motivated it, was the danger one that society would reasonably expect the average person to withstand? Was there any reasonable legal alternative to the illegal response open to the accused?

15. In addition, defence relies on R .v. Fong, for the proposition that “if the fear was genuine and he [the defendant] believed himselfin danger, there is no requirement that he make the best choice, only that the choice made be proportionate to the perceived danger andthat the evil chosen not be greater than the evil avoided” (para 20). 16. In this case, defence submits that there was a real emergency, that Mr. Kogan was fearful for his life, and that he acted in a waythat mirrored the danger. 17. In reply to the Crown’s submissions, Mr.

Kocet argues that the Court should consider the issue from the perspective of thedefendant, to be satisfied that it was reasonable in the circumstances. To this end, he argues that we cannot envision how an emigrantfrom the former Soviet Union “where the KGB and police brutality was common practice in the former communist state”, and cannotand ought not import beliefs about relying on assistance from the police. 18. Mr.

Kocet asserts that, since the Court heard no evidence of exchanges between the defendant and police witness, that the Courtis entitled to draw an inference from the fact that the defendant required an interpreter at trial, to serve as foundation that there was likelymiscommunication between him and the officer. Crown Submissions 19. The Crown prosecutor asserts that elements of the charge are not in dispute, and that the defence of necessity should fail.

Mr.Kogan failed to establish that his actions were necessary, having particular regard for the fact that he did not prevail upon the arrestingofficer to put him in touch with emergency medical services, in spite of the fact that the traffic stop took over a whole hour. Nor did Mr.Kogan use his own phone to contact emergency personnel, nor, indeed, apparently, to contact his family to assist him. Analysis and Reasons 20. First, dealing with the evidence that was not admitted by the Court. It is clear that Mr. Kogan quite ably articulated hisunderstanding of his afflictions in significant detail.

This evidence was neither challenged nor contested. It certainly stands on its ownand merits full weight. For the reasons set out below, however, nothing turns on it. 21. The Court finds the Crown has established all the elements of the offence beyond a reasonable doubt, and that Mr. Kogan hasfailed to make out a viable defence of necessity. 22. To start with, the Court agrees that, per R. v. Morris, necessity is available as a defence to charges under provincial regulatorystatutes including absolute liability offences as the defence operates to excuse the actus reus of the offence. 23.

The principles relating to the defence of necessity can perhaps best be summarized in paragraphs 17 and following of a recentdecision, 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 necessity

will 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) 24. Does the evidence support a conclusion that there is an “air of reality” to each of the three elements set out in Perka? 25.

In the Court’s mind, the starting point of an analysis of whether the action was necessary must be the time at which the actualperception of necessity arose. In this case, it is unclear as to when that was. Was it when Mr. Kogan was faced with the ultimatum tomove his vehicle or face having it towed at his expense by the mechanic? Was it while he was waiting for his own tow truck to arriveand began to experience physical symptoms? Or, was it at some other time, such as after the interaction with the charging officer? In theCourt’s mind, there is no evidentiary basis for answering this question.

This makes it impossible to assess the strength of the argument. 26. When asked in examination in chief why he was driving the vehicle, he answered “I had no other choice; the mechanicthreatened me”. He was scared. This supports the proposition that the decision was made in response to the perceived threat by themechanic. 27. On further questioning, he went on to explain the circumstances of his foot swelling and how this resonated with prior similarexperiences and evoked fears of sudden, uncontrollable gushing of blood.

This supports a finding that his decision to drive was inresponse to the growing physical symptoms. 28. Given the state of fear that he expresses, it is not clear how Mr. Kogan believed that getting into a vehicle and driving away isthe only viable alternative. There is no evidence that he expressed his fear to the mechanic and sought assistance. There is no evidencethat he contacted his wife who has just some time before dropped him off at that location and could, presumably return to assist him. There is no evidence that he called emergency medical personnel.

This contradicts his claim that his decision was based on medicalneed. 29. Further, there is no evidence that, faced with an inability to communicate with the officer, Mr. Kogan resorted to gestures orother non-verbal means to express his concerns. The Court also notes that any claim that he did attempt to communicate his state ofmind contradicts the argument that he failed to do so out of fear for those in authority. 30. Mr. Kocet invites the Court to assess Mr. Kogan’s state of mind from his perspective, however, including a range of assertionsregarding Mr. Kogan’s interaction with state authorities.

To start with, in light of the comment from Latimer set out above, this would beincorrect. Moreover, that brings us back to the time when Mr. Kogan had been stopped, well after the time when he made the actualdecision to drive when he was uninsured. And, finally, perhaps most challenging, it invites the Court to rule on the strength ofstatements made in submissions for which there is no credible evidentiary foundation. 31. In this context, I am also aware of a decision of Justice Katarynych in R. v. Mardave Construction

(1990) Ltd. 56 Mr. Keith argued that the defence of necessity has been specifically recognized to apply to charges under the Occupational Healthand Safety Act. I had no difficulty with that submission. My difficulty was in Mr. Keith's extension of that defence to include necessitybased economic hardship. The prosecutor argued that there is no defence of economic necessity that can be made out on the authority ofPerka. I agree. 32. Accordingly, we cannot find that there was a necessity. 33. If the “need” related to the safekeeping of the vehicle, then this does not represent an “imminent peril”, and certainly seems torelate to economic necessity that was rejected in Mardave Construction

(1990) Ltd. If the argument is that the “need” related to medicalemergency, Mr. Kogan’s evidence was neither credible nor compelling.

34 . For the same reason, Mr. Kogan’s defence fails on the standard of proportionality. It simply strains credibility to find that Mr. Kogan could believe as he claims that he was in imminent danger of sudden, uncontrolled blood gushing, and that the best alternative presenting least danger to himself and other users of the road would be to get into a car and drive away. While he invites the Court to believe that he was seeking the closest point of safety, from which he could secure assistance, he did not contest evidence that the police officer followed Mr.

Kogan for a distance of approximately five hundred metres before stopping Mr. Kogan. If Mr. Kogan was being cautious, seeking out persons to assist him and driving only the distance needed to get away from the mechanic’s location, what steps did he take? Was he vigilant to other vehicles or pedestrians in the area? Apparently, he was not sufficiently vigilant as to observe the police officer following him. 35 . Further, the Court notes that owner operate no insurance is one of the more serious offences under the rules of the road.

The minimum fine is $5,000.00, while, by comparison, careless driving has a range of fines up to $2,000.00. Although the Court acknowledges that there was no actual harm done as a result of the offences, this does not diminish their seriousness, in particular the owner-operate no insurance. The action taken – and the inherent risk involved given the medical condition described by the defendant – are not proportional. 36 . Quite simply, I am unable to accept that the defence of necessity has been made out. By contrast, I do believe that Mr.

Kogan went to the mechanic’s location to resolve and issue regarding his car. He was unable to do so and decided to leave with the car rather than face having it towed at his expense, which, he pointed out, he was unable to afford. He got caught, charged, and, now, is convicted. Issued 14 February, 2011 at the City of St. Catharines His Worship Donald Dudar