R. v. Pierre, 2011 ONCJ 255

Citation: R. v. Pierre , 2011 ONCJ 255 IN THE MATTER OF the Highway Traffic Act, R.S.O. 1990, c. H.8 Between Her Majesty The Queen Prosecutor And Raphael Pierre Defendant Ontario Court of Justice Mississauga, Ontario Manno, G. Justice of the Peace Reasons for Judgment Charge: s. 142(2) H.T.A. – “Start from stop not in safety”, Trial held: February 8, 2010, October 15, 2010, January 27 & 28, 2011 Judgment rendered: May 13, 2011.

Counsel: R. Craig, provincial Prosecutor M. Tchavoshi, Agent for the Defendant Cases Considered or Referred To: R. v. W. (D.), (SCC), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91 (QL) (S.C.C.). Dallison v Caffery [1964] 2 All ER 610 at 619 [1965] 1 QB 348 United Kingdom Court R. v. Gibbons, 2011ONCJ 218 Williams v. Webb et al. [1961] O.J. No. 543 Durham v. Murray, 2011 ONSC 851 Regina v. Lifchus, (SCC), [1997] 3 S.C.R. 320(S.C.C.); Nelles v. Ontario (1989), (SCC), 37 C.P.C. (2d) 1 S.C.C. R. v. Kular,2010 ONCJ 241 Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354 Oniel v.Metropolitan Toronto (Municipality) Police Force, (ON CA), [2001] O.J. No. 90 (C.A.); Folland v. Ontario (ON C.A.), (2003), 64 O.R. (3d) 89 (C.A.) Statutes, Regulations and Rules Cited: Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 142(2) Libman onRegulatory Offences in Canada, 2002 at 8.12(

b) Reference Material Cited: Words and Phrases, cumulative supplement, June 2008, Volume 5, J-N, pg. 5-88 Patrick Healy,“Credibility and the Presumption of Innocence.” (2007) 11 Can.Crim. L.R. 217. Issues: Establishing proof beyond a reasonable doubt. Credibility andReliability of Testimony. Malicious Prosecution. Background:

(1) On December 30th, 2008 in the city of Mississauga, the Defendant Raphael Pierre as driver of a motor vehicle had a minor collisionwith another motor vehicle in the City of Mississauga, Region of Peel at Mathews Gate west of Hurontario Street. He was later chargedwith a Part One offence under the Highway Traffic Act, section 142 (2) whose short form is ‘start from stop not in safety.’ Specifically,the part-one Certificate of Offence # 95544641 was issued to the Defendant at the scene.

(2) Mr. Pierre is a 62 year old gentleman (who will reach 63 years of age on June 17th of this year), if convicted, faces a fine of $85.00or $110 after costs and will be levied 2 points by the Ministry of Transportation. He works as a mechanic but indicated that he wastaking night school courses in financial management/planning in a building near the accident scene.

(3) The specific charge is as follows:

“ Signal when moving from a parked position – The driver or operator of a vehicle parked or stopped on the highway before setting the vehicle in motion shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement” ( 4 ) This is a strict liability offence. ( 5 ) The following portions of subsection 1(1) of the Highway Traffic Act are relevant to this proceeding: In this Act: ‘ driver ’ means a person who drives a vehicle on a highway; ‘ highway ’ includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof; ‘ intersection ’ means the area embraced within the prolongation or connection of the lateral curb lines or, if none, then of the lateral boundary lines of two or more highways that join one another at an angle, whether or not one highway crosses the other; ‘ vehicle ’ includes a motor vehicle, trailer, traction engine, farm tractor, road building machine, bicycle and any vehicle drawn, propelled or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle or street car.

Sections 142 (4) and 142 (6) also have some relevance as related provisions at defining signalling as well as 142 (7). The Evidence The Witness or other party in the collision. ( 6 ) On February 8 th , 2010 when the Trial commenced, the Prosecution began by calling its first witness, the other party involved in this minor collision, Mr. Yi Quiang. Mr Quiang testified that at around 5p.m, right after work, he was travelling in his new Toyota Camry on Mathews Gate in the City of Mississauga.

He says he was careful with his vehicle that was approximately two months old. ( 7 ) He was travelling eastbound on Mathews Gate and he observed a vehicle approximately 4 to 5 car lengths ahead of him on the road. He said there was parking on the right hand side of the street (the south side). He slowed as he believed the car in front was trying to park in one of the right hand side parking spaces.

He believed the car was stopped and assumed that the driver was attempting to park. ( 8 ) Then he said the car reversed back over a long distance and struck the right front corner of his new Toyota Camry (the front driver side of the car). ( 9 ) The car that reversed, the Defendant’s vehicle, sustained damage to the left back side of the vehicle or back passenger side.

He believed the vehicle to be an older Audi perhaps a 500 or 5000 model and yellow in colour. ( 10 ) When asked if he could identify the driver of that Audi, the Witness said it was the Defendant in the courtroom and pointed to him without hesitation. ( 11 ) He said that the Defendant was on the right hand side of the road facing east while the Witness was more in the middle of the road facing in the same direction.

Once the collision occurred, the Witness said he did not move his vehicle at all but that the Defendant pulled forward and away from the point of impact. ( 12 ) The Witness said the Officer arrived on the scene shortly thereafter to interview both him and the Defendant. He believed that he saw some sort of signal from the Defendant’s vehicle that indicated he planned to park on the right. He also believed

that the Defendant’s vehicle was stopped and not in motion. Cross examination of Witness: ( 13 ) On cross examination, the Witness believed he saw the right signal flashing from the Defendant’s vehicle ahead. He believed there was a parking spot available behind the Defendant’s car where the Defendant was attempting to secure. ( 14 ) On cross examination the Witness was not able to verify whether or not Mathews Gate is 100 metres in length or 50 metres. He said he lacked that expertise and had never measured the street.

He was asked whether or not he believed one could fit four cars side by side on Mathews Gate but again, said he could not answer that question lacking the expertise. ( 15 ) When asked whether or not the Witness had sounded his horn when he saw the Defendant moving back towards him he said that he did not recall hearing any horn. ( 16 ) After cross examination, the Witness testified that he was moving quite slowly on Mathews Gate at an estimated speed of between 15 to 20 kph with no traffic on the street other than his vehicle and the Defendant’s vehicle. ( 17 ) On October 15, 2010 the Trial continued first with a brief discussion of the 11B motion which was not properly finalized and did not adhere to the proper notice periods.

The Agent for the Defendant agreed to re-file in a completed state for the next continuation and that the Motion would be argued once all of the witnesses had completed giving their viva-voce evidence for the Trial in respect of their schedules. ( 18 ) Officer David Faria took the stand to give evidence. The officer confirmed that he arrived on the scene after the collision and the Defendant’s vehicle had been moved prior to his arrival. He estimated that Mathews Gate was approximately 300 feet in length and he confirmed the balance of the essential elements of the Offence.

He testified that there were no witnesses nor were there any passengers in the two vehicles involved. He believed there was a female witness but was not able to contact her. ( 19 ) After brief conversations with both the witness and the Defendant and noting the position of the vehicles and the damage, the Officer reached the conclusion that the Defendant was backing up to park his vehicle in an available spot and hit the witness’s vehicle.

Based on his assessment, he issued the Certificate of Offence to the Defendant who he believed was at fault. ( 20 ) On cross-examination, the Officer admitted that the only version of the accident that was available was that of the Witness or Victim and that of the Defendant. He would normally go to a witness to corroborate the version he heard but in this instance, there was no third party witness.

Thus only two contradictory versions were available as evidence along with the physical damage noted. ( 21 ) The Officer found the Audi (Defendant’s vehicle) with its nose pointed to the north as if it was either switching lanes, or reversing into a parking spot but admitted that the vehicle had been moved before he arrived. He did not see any signals operating on any of the vehicles. ( 22 ) The Defendant, Mr. Raphael Pierre took the stand to give evidence. Mr. Pierre is a 60 year old man who had been driving for 42 years.

He worked as an auto mechanic and was travelling to Scarborough that evening to take a night class having to do with financial training. ( 23 ) He recalled seeing a sign on a post authorizing one hour parking. He admitted to being double-parked with his four way flashers on to await the availability of a parking spot.

( 24 ) The Defendant said he moved forward slowly to find a parking spot, heard or felt a large bang on the rear end of his vehicle and got out to ask the Witness why he was driving so fast. ( 25 ) On page 51 of the October 15, 2010 transcript the Defendant described his action as follows: “That parking was on my right side, okay, on my right-side, little bit forward of me-little bit forward of me, so I-when the lady just move the Odyssey and I start to move in slowly to reverse to take that parking in reverse, but I start moving slowly.

So as soon I start moving slowly and I just feel something rear-end-rear-end my left side of the vehicle.” ( 26 ) On January 27 th and 28 th , 2011 the Trial continued. On the first date, the Defendant continued with his viva voce evidence. On page 20 of the January 27 th , 2011 transcript , when asked about what Mr. Pierre said on the October 15 th Trial date on cross examination, he replied thusly (line 2) Q. “...you indicated that, you of course, had to reverse first, before you went into the spot. Do you disagree with that today? A.

No I don’t recall, I should say such thing like that, because the....” ( 27 ) Further in the Transcript, on page 21 at line 18 (January 27 th , 2011 transcript) the Defendant gave the following testimony: “No, I don’t recall. I should say such thing like that, because the....” ( 28 ) Again on page 21 of that same Transcript the Defendant said, “So when I ...the lady just moved the Odyssey I start to move then slowly to reverse to take that parking in reverse, but I start moving slowly.

So as soon as I start moving slowly and I just feel something rear-end – rear end my left side.” ( 29 ) The Defendant continued on page 22 of the transcript at line 30, Q. “you never saw him. Is that correct?” A. “ To tell you the truth, I’m not-I’m not—I never saw him” ( 30 ) On page 25, line 6 the examination continued with Q . “you—your evidence is you were moving forward, correct?” A. “Of course.”

( 31 ) Then on line 12 of page 25 of the Transcript, the Defendant took

part in the following exchange Q. “All right, but on the last day—we’ve gone over this, but in the last day you did say that you, of course, were going to reverse first, but you disagree with that today?” A . “I would-I would reverse” ( 32 ) On Page 26, line 7 the following exchange between the Prosecutor and Defendant took place Q. “So you were stopped, so the vehicle... A. I.... Q ....was moving, correct? A. No, I was going—about to move forward, okay. Q.

Well, you’re about to move forward, you’re moving forward, you stopped the vehicle, you’re moving the vehicle, it’s very confusing sir.” ( 33 ) The questioning continued on line 22 of page 26. Q. “Do you remember what you did after the collision? A. What I remember I did, I just stopped the vehicle...” ( 34 ) Line 30, page 26 the Prosecutor asked the following question for clarity. Q. “...so the vehicle was moving and you stopped the vehicle and you ended up ahead of – a little bit ahead of the other driver....” ( 35 ) On page 28 in cross examination at line 1, the following exchange took place. Q. “all right.

So the other driver was – saying some things in another language. Is that what you’re saying? A. Yes Q. and the other driver was also speaking English too. Is that correct sir? A. Well hardly.” Analysis of the Evidence ( 36 ) The Court always bears in mind that the Prosecution bears the onus of proving this Offence beyond a reasonable doubt. That burden never shifts to the Defendant during the Trial. The Court is mindful of this responsibility.

( 37 ) There are three possible versions of the events that occurred that fateful evening. One version comes from the perspective of the Defendant, one version according to the Witness and still another version (that is possible) encompassing some elements from each of the two offered versions. The Witness/Victim version and the one adopted by the Prosecution asks the Court to believe that the Defendant’s vehicle was moving backwards on a darkened street in an attempt to parallel park his vehicle on the south side of the street.

He did not see the Witness/Victim vehicle standing firm behind him some 4 to 5 car lengths away and struck the Witness vehicle that had remained motionless throughout. ( 38 ) There were no witnesses on the scene. However, post collision when the Officer attended and interviewed the involved parties, he chose to adopt the Witness’s version of events. He proceeded to charge the Defendant with a part one offence. Admittedly, the vehicles had been moved before his arrival making it difficult to see the final resting place of all of the vehicles. ( 39 ) The second version was that of the Defendant.

The Defendant claimed he was double parked with his four way flasher lights on near the right hand side of the street. This was beside parked vehicles while he awaited the availability of a parking spot. He spotted an available space to the right and slightly ahead of his position. However, before he could move, he claimed he was struck from the rear by the Witness who was in motion and who he speculated was attempting to move around his vehicle.

He substantiated this theory by reminding the Court that the Witness’s front wheels were turned to the left and had not been moved at all by the Witness post impact. ( 40 ) The damage to each of the vehicles involved was consistent with all possible versions above. It was agreed that the Defendant moved his vehicle forward and to the left (towards the middle of the road) post impact. The Witness testified that he did not move his vehicle at all.

It was found to have its front wheels turned to the left and the front of the car pointing due east on the street nearer to the middle of the road. ( 41 ) The Defendant then said he exited his vehicle and asked the Witness why he was driving so fast. He also indicated that the police officer who attended appeared to be of Asian descent. He also noted that the Witness was also Asian. He believed that the two began to engage in a conversation in a language he did not understand.

The Agent raised the spectre in Court that perhaps the other two parties were speaking Cantonese or Mandarin or some other language and leading the Court to consider possible prejudice. The Officer’s later viva voce evidence dispelled this theory by testifying that he spoke no other language other than English and that the conversation that evening was conducted in English. The Defendant also admitted in paragraph 28 above that he did not see the Defendant before the impact.

This would appear to indicate that his comment about the witness speeding was not substantiated in any way by the evidence or by his observations. ( 42 ) The Court considered the possibility of a third version. This version postulated that the Defendant was in fact moving backwards from a parked position albeit at a slow speed to gain advantage on a parking space that became available. He was possibly running late for his class, parking was difficult and he might have thought that the vehicle behind him might have been also attempting to park and competing for the same available space.

The Witness was also in motion, moving forward slowly not knowing what the vehicle in front was attempting to do. He possibly turned his front wheel to attempt to go around the Defendant’s vehicle and misjudged the distance since both vehicles were moving towards each other that fateful evening. This version was not offered to the Court by either party though it too is consistent with the damage incurred as well as the tire positioning found on the Witness vehicle. However, the Court has discounted this third version. It should not embark on its own investigative process and related conclusions.

Its role is to assess the evidence provided and attempt to reach a just verdict. In this regard, the veracity of this third version will not be considered and we will limit our consideration to the versions put forth by the Defendant and the Prosecutor. ( 43 ) At first glance, both versions under consideration appear possible. Given the absence of witnesses and the moved position of at least one of the vehicles post collision, the Court is left in the same position that the Officer was on that evening - trying to determine the truth based primarily on two competing versions of the events.

The Court has observed the demeanour of each Witness and that of the Defendant throughout the trial. Both appear convinced that their version is the correct one and both appear credible in varying degrees to this Court. Certainly, the reliability of the Defendant’s testimony has been tested frequently throughout the trial and many aspects of his testimony remain a concern to the Court. For instance, Mr Pierre appeared quite confused or was being evasive as to whether or not he was moving forward, back or remained double parked.

The Defendant provided all of these versions to the Court as evidenced by the transcript. To review these statements one would only have to review paragraphs (24) to paragraph (34) above which are statements reproduced from the Transcripts. ( 44 ) The Defendant also appeared to provide different dates of when he took the photos referred to during the Trial. These were photos he took and claimed were taken in a season that was not consistent with the time of year indicated by the foliage on trees contained within the photos. This made his testimony less reliable in this instance.

Though referred to, the photographs were not admitted as formal exhibits to the Trial. The Court only relies in part on the examination of the photos in assessing the Defendant’s reliability and credibility and not on the evidence of street width or parking contained therein. (see pages 43 – 45 of the October 15 th ,

2010 transcript for this exchange)

(45) Additionally, the Defendant appeared confused or mistaken about the language that the Officer and the Witness werespeaking to one another at roadside. The evidence was that the conversation was in English. The Officer testified that he spoke no otherlanguage other than English. The Defendant felt that the conversation at roadside was in some language he did not comprehend. Thattoo was of concern to the Court.

(46) Of note is the fact that in most collisions Officers would place the higher onus on the rear vehicle to assess blame forthe collision all else being equal. The theory being that the driver in the rear has or should have the advantage of clear vision of what ishappening up front and will have the better reaction time and take precautionary measures. In this instance due to the manoeuvre that theDefendant was attempting, the Officer chose to place the onus for the collision on the front placed vehicle which may or may not beaccurate. That is the determination he made at roadside that evening.

(47) Despite these lapses in reliability the Defendant reminded the Court that there was evidence in support of their theory. Firstly there is the fact that the Witness said that they did not move their vehicle at all post impact yet the wheels were turned in an oddleft turn position. The Witness did not sound a horn for the reversing vehicle and yet though there were 4 to 5 car lengths separatingthem, there was no evidence that the Witness attempted to avoid the backing up vehicle, which might be a normal reaction to anyonefaced with that set of circumstances.

There were no witnesses other than the two involved parties and the officer arrived post collision. At least one vehicle had been moved which decreased the accuracy of any reconstruction done that evening.

(48) To assist the Court in reaching a verdict it considered R. v. W. (D.), (SCC), [1994] 3 S.C.R. 521,[1994] S.C.J. No. 91 (QL) (S.C.C.). As well to help define reasonable doubt the Court utilizes the principles set forth by the caseRegina v. Lifchus, (SCC), [1997] 3 S.C.R. 320 (S.C.C.)

(49) In R. v. D.W. the Court considers the following test: First: If you believe the evidence of the Accused/Defendant, you must acquit. Second: If you do NOT believe in the evidence of the Accused/Defendant, but you are left in reasonable doubt by it, you must acquit. Thirdly: Even if you are not left in doubt by the evidence of the Accused/Defendant, you must ask yourself, whether, on the basis of theevidence you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the Accused/Defendant.

(50) An expansion of the R. v. D.W. analysis is conveniently found in J.P. Quon’s recent decision in R. v. Kular, 2010ONCJ 241 where he says: “In Professor Healy’s dissertation (before he was appointed to the bench) at pp. 230-231, he explains that the principle which animatesR. v. W. (D.) is whether the evidence in a case discloses a reason for the trier of fact to have reasonable doubt on the whole of the case.He also reasoned that R. v.

W. (D.) is a particularized expression of the presumption of innocence and that it is concerned with theapplication of the standard of proof on the whole of the evidence at the end of the case. Furthermore, Professor Healy in utilizing thecriteria outlined in R. v.

W. (D.), expanded the number of scenarios for acquitting an accused when the credibility of witnesses and theaccused is at issue and suggested five possible situations in which the trier of fact could find reasonable doubt about the accused’s guilton the whole of the case: The principle in W. (D.) is concerned with one question for the trier of fact: Does the issue of credibility give you a reason to have areasonable doubt of A’s guilt on the whole of the case? There are five reasons to say Yes.

1. I am not persuaded beyond a reasonable doubt by the prosecution witnesses of A’s guilt. 2. I believe the exculpatory testimony of the defence witnesses and thus the prosecution case is not proved beyond a reasonable doubt. 3. Even if I do not believe it, the exculpatory testimony leaves me with a reasonable doubt. 4. Even if I do not believe the exculpatory evidence, I do not know what or whom to believe on the essential elements of this case, andthus I have a reasonable doubt on the whole of the case. 5.

Even if I do not believe the exculpatory testimony, when I consider all of the evidence in this case, I am not persuaded of A’s guiltbeyond a reasonable doubt. Paragraph 1 is subsumed in paragraphs 4 and 5, and between themselves paragraphs 4 and 5 are strictly redundant, but this is the full range of possibilities covered by the general principle in W. (D.)Any one of these five answers will compel an acquittal. 2010 ONCJ 241 ”

(51) We have turned our mind to the expanded analysis above as well as to the original analysis found in R. v. D.W. Thefirst test in D. W. does not apply in this Court’s opinion. The statements that the Defendant made and outlined above were found to bemuch less reliable and when combined with the Defendant’s demeanour in Court while on the witness stand, caused the Court toquestion the Defendant’s credibility. Frankly, the Court does not find that the evidence of the Defendant to be reliable.

(52) The Court accepts the evidence of the Witness regarding his front wheel positioning. We do not find that it issufficient a detail on its own, to raise the spectre of reasonable doubt when considered against the lack of reliability of the Defendant’stestimony and recollection and the balance of all of the other evidence. We also have considered that the lack of witnesses and themoving of the vehicle(

s) post accident as lowering the certainty to some degree. Do these inconsistencies constitute reasonable doubt?

(53) The Court is mindful that the discussion regarding the photographs (paragraph 42 above), and, of the confusion in therecollection of the Defendant as to his motion on that fateful day combined with the fact that he admitted not seeing the Witness vehicleall cause the Court to consider that on balance, the charge has been made out beyond a reasonable doubt. Whether or not the Defendantwas moving backwards or forwards from a stopped position, the onus was on him to ensure he could make the movement in safety.

Nothaving seen the Witness vehicle pre-impact does not convince us that he was aware of his surroundings that evening. Additionally, wedo believe the evidence given by the Officer and that of the Witness but find that the testimony of the Defendant has been less reliableand less credible in its recollection of what happened that particular evening. The expanded five points brought forth in ProfessorHealy’s analysis compels us to consider the many ways the Court can and should acquit a Defendant, however, no reasonable doubtappears herein.

(54) This Court has considered Defendant credibility as only one of the factors it should examine in reaching a fair verdictbut not the only factor. In Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354. Justice O’halloran says that If a trialJudge's finding on credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box,we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box.

He goes on to saythat; The trial Judge ought to go further and say that evidence of thewitness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, alsostate his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of thewitnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to theexclusion of others, but is based on all the elements by which it can be tested in the particular case.

This Court has considered all of theelements of the versions presented (including credibility) and has come to the reasoned conclusion that the Defendant was at fault thatevening.

(55) Furthermore, we are mindful that there were some challenges with the language between the Agent for the Defendant,the Defendant himself, and the Witness. However, the Court believes that though these challenges probably resulted in the Trial beinglonger (i.e. taking more time) in order to clarify testimony, the challenges did not affect the comprehension of all parties. It is ourconsidered belief that the Trial was conducted in an understandable and fair manner. Did the Defendant’s nerves play a role?

Possibly,however the Court assessed his demeanour throughout and found that there were no points during the trial where the Court noted anyextraordinary difficulty in testifying. The issue was not the language difficulty. It was that the Defendant’s testimony that did not standup to cross examination in the end. Once again, the Defendant’s testimony was not reliable and that affected the credibility of theevidence in the Court’s mind.

(56) Malicious Prosecution The Defendant has asked this Court to consider a Motion, which if granted, would find thatthe Prosecution is guilty of malicious prosecution. This motion would fall under

Section 106 of the Ontario Courts of Justice Act. Ofcourse under Rule 7(2) of Ontario Regulation 200 proper notice would need to be served ahead of arguing the Motion. Having said this,the Court may hear the Motion without Notice if it so deems and no objection regarding the lack of notice was put forth by theProsecution when this motion was first raised. The Defendant wished the Court to find for costs against the Prosecution and ask theCourt to stay all charges under that Motion. Malicious prosecution is a narrow definition of abuse of process or abuse of office and iswell described in the case of Nelles v.

Ontario. In that case, Lamer J. stated that malicious prosecution required more than just badjudgement on the part of a Crown Attorney in prosecuting. There must be deliberate and malicious use of the office for ends that areimproper and inconsistent with the traditional prosecutorial function. It is a serious accusation and one to be considered carefully. HisHonour R. Libman in his book indicates that the power to stay under these proceedings should only occur in the clearest of cases. This isnot one of those situations.

(57) Does the Prosecution’s behaviour in this case meet that standard? Not in this Court’s opinion. The Defendantprovided no argument or case authority or evidence other than the conclusion that the Prosecutor should be found guilty of this seriouscharge. The Court did not find that the Prosecution requested any extensions or did not provide disclosure when requested within areasonable time period. The evidence would suggest that the Prosecution had reasonable grounds to proceed with the case.

(58) The Defendant need not be the only party in a Trial that could raise the spectre of Malicious Prosecution. In otherwords, could the Court infer malicious prosecution based on the Trial evidence and the way in which a Trial unfolds? This is possiblehowever, unlikely to be true in this particular case. This Court has held that continuing a prosecution in the absence of reasonable andprobable grounds is capable of giving rise to an inference of malice: see Oniel v.Metropolitan Toronto (Municipality) Police Force, (ON CA), [2001] O.J. No. 90 (C.A.); Folland v. Ontario (ON C.A.), (2003), 64 O.R. (3d) 89 (C.A.).

In Oniel, at para. 54-55, Borins J.A. said: Although the prosecutor may have reasonable and probable cause to commence a prosecution, if the prosecutor obtains informationwhich suggests that the person probably did not commit the offence, or recklessly disregards advice that such information could beobtained through routine investigative steps, the prosecutor lacks reasonable and probable cause to continue the prosecution, andmalice may be inferred.

Continuing the prosecution in the absence of an honest belief in the appellant s guilt would be incompatible withsecuring the ends of justice, and malice could be inferred if the respondents continued the prosecution with reckless indifference to thetruth. Continuing a prosecution in these circumstances would not be using the criminal justice system for the purpose for which it wasintended.

(59) As well, from the Court’s own observations, the Prosecution in this matter did not appear to behave any differentlythan it had in other Trials. This Court had noted they argued their position with appropriate conviction and passion. The evidence theysubmitted would certainly support their belief that a case had been made out and that the Prosecution should proceed in the interests ofJustice. Additionally, they are not largely responsible for the delay in this matter or the time it took for the Trial to complete. It isdifficult for the Court to understand the evidence that the Defendant relies on to come to this conclusion. As such the Defendant’sMotion is denied.

(60) The Court is sympathetic to the fact that the Defendant had lost at least four days of work in order to defend againstthis charge and has had to pay for legal representation and related costs, including Transcript reproduction costs which he estimated to beover $800. Beyond this recognition, the Court cannot rule based on sympathy or bias, it must rule in an unbiased and fair manner.

( 61 ) Considering all of the evidence and the issues the Court has outlined above using the principles set forth in R. v. D. W. and using the

definitions of reasonable doubt as found in R.v. Lifchus, the Court finds on behalf of the Prosecution beyond a reasonable doubt . The Prosecution has met its burden of proving their case beyond a reasonable doubt and a conviction shall be registered against the Defendant in this matter. We shall now consider sentencing submissions. G. Manno Written Reasons released and filed with the Court May 13, 2011