Mississauga (City) v. Vezina, 2019 ONCJ 252

CITATION: Mississauga (City) v. Vezina , 2019 ONCJ 252 DATE: February 13, 2019 ONTARIO COURT OF JUSTICE CORPORATION OF THE CITY OF MISSISSAUGA v. GREGORY VEZINA ********** R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE P.F. Monahan on February 13, 2019, at BRAMPTON, Ontario ********** APPEARANCES : F. Capizzano Counsel for the Crown G. Vezina In Person

R E A S O N S F O R J U D G M E N T MONAHAN, J. (Orally): INTRODUCTION These are my oral reasons for judgment in the case of the Corporation of the City of Mississauga v. Gregory Vezina. Mr. Gregory Vezina was convicted at trial of speeding 78 kilometres an hour in a 50 kilometre zone, contrary to s.128 of the Highway Traffic Act . The trial was held before Justice of the Peace H. Cassano on June the 5th, 2017. I heard the appeal from the conviction for speeding on January the 11th, 2019, and I reserved judgment until today, February 13th, 2019. The notice of appeal raises two grounds of appeal: 1 .

Impartiality of the court. The appellant says the court should not "dictate the argument for the prosecution as it must be impartial". The appellant submits that the "prosecution made no reply to the evidence of the witness (the defendant) and accepted the medical evidence, made no rebuttal against the defendant's argument and submissions and, therefore, accepted that position". 2 . The decision is wrong in law. The balance between the defence of necessity and the statute was not weighed correctly.

OVERVIEW OF THE FACTS It became apparent in the oral argument of the appeal that the two grounds of appeal above were really one ground of appeal, namely, that the appellant argued that the court below did not properly interpret and apply the law of necessity. I will review the issue of necessity in a moment, but let me be clear, that there was no lack of impartiality on the part of the Justice of the Peace. I have reviewed the trial transcript and the reasons for judgment and there is absolutely no basis for any suggestion that the Justice of the Peace did not act impartially.

The Justice of the Peace acted entirely properly throughout. It is a serious allegation to say that a judge has acted impartially. It was alleged here with no proper basis. The sole issue in the appeal is, therefore, whether the Justice of the Peace failed to properly consider and apply the law of necessity. In order to consider and determine this issue, it is necessary to understand more as concerns the findings of fact of the Justice of the Peace and the trial evidence. The Justice of the Peace accepted that the defendant, Mr.

Vezina, had a number of medical conditions, namely, hepatitis C, a damaged liver and "pancreatic and bladder issues", according to Mr. Vezina. According to him, once he has to go to the washroom, if he doesn't go within a couple of minutes, he will urinate himself. On the day in question, he was driving home from Walmart and he sneezed while driving and began to urinate himself but said at the trial that he was "clenching myself, so that I wouldn't pee my pants". He saw a traffic light ahead, which had just turned green; he accelerated to make the light so that he could get home which was five blocks away.

The police officer pulled him over as he was speeding 78 kilometres in a 50 kilometre zone. When pulled over, he immediately went to a stranger's house to use the washroom. THE LAW OF NECESSITY

The defence of necessity is available in respect of criminal offences. There are three elements to the defence: 1. Imminent peril or danger; 2. The absence of a reasonable legal alternative; and 3. Proportionality between the harm inflicted and the harm avoided: see R. v. Latimer, 2001 SCC 1 , [2001] 1 SCR 3; see alsoR. v. Perka, (SCC), [1984] 2 SCR 232. In the criminal offence context, the issue of necessity is referred to as a "defence", but it is not a defence that requires that the defendantdischarge an onus of proof.

The Crown always has the obligation to prove all of the elements of a criminal offence beyond a reasonabledoubt. One element of the offence in a criminal case is the voluntariness of the actions of the defendant. Voluntariness will usually bepresumed unless the defence puts before the court, either through the Crown's witnesses or its own witnesses, sufficient evidence to raisethe issue of necessity. Where that occurs, the Crown must meet the issue and demonstrate, beyond a reasonable doubt, that necessitydoes not apply: See Perka, supra, at page 257.

APPLICATION OF THE LAW TO THE CASE BEFORE THE COURT During the course of oral argument in the Vezina appeal, I made the observation that the Justice of the Peace erred when she said, atpage two of her reasons, that "the defendant now has the burden of proving on a balance of probabilities that the defence of necessityoperates in his favour, such that the charge should be dismissed." I did not say that the appeal should be allowed. I simply observed thatshe appeared to improperly place the necessity onus on the defendant.

I've reflected on this point further and on further consideration,I've concluded that she did not err when she said that the defendant had the onus of proving the necessity of defence. Let me explain. The Perka and Latimer cases were criminal charges or the equivalent in the case of Perka, which was a Narcotics Control Act caseinvolving a potential jail sentence. In the criminal defence context, the onus is on the Crown to prove all of the elements of the offence,including the voluntariness of the act. A speeding offence is not a criminal offence.

A speeding offence is a strict liability regulatoryoffence: see R. v. Sault Ste. Marie, (SCC), [1978] 2 SCR, 1299 at pages 1318-20. The Crown must prove the elements of the offence of speeding which does not require proof by the Crown of the mental element of theoffence. The defence then has the onus of establishing a due diligence defence on a balance of probabilities. The "defence" of necessityhas arguably been subsumed in the due diligence defence. The defence is available but the defendant has to prove it applies on a balanceof probabilities: see Peel v. Le Royal Resto and Lounge Inc., [2017] O.J.

No. 6015 at para. 67. I note that neither the appellant nor therespondent made any meaningful submissions on this point on the appeal and provided no case law on this point. However, in my view, this case does not turn on whether the Crown has to disprove the necessity defence as in a criminal case wherethere is sufficient evidence to raise the issue or whether the defendant has to prove on a balance of probabilities that the defence applies. In my view, the defence of necessity cannot possibly apply in this case, regardless of the onus and I will explain why.

First, in my view, the fact that a person might urinate themselves cannot possibly amount to "imminent peril or danger". The SupremeCourt has said the defence of necessity has to be "strictly controlled and scrupulously limited". See Latimer, supra, at para. 27, quotingfrom Perka, supra, at page 250. The concept or rationale behind the necessity rule is that it would be wrong to punish actions which were truly involuntary.

The Justiceof the Peace, in this case, may have overstated the point when she said that the defendant "failed to establish...that the inability to get to abathroom would have put his life in danger,” but she reached the correct conclusion that the possibility of soiling oneself does not meetthe Perka test of imminent peril or danger. Soiling oneself is not a situation that could endanger life or health. See Perka, page 257, asto the life or health requirement for necessity. Further, as the Justice of the Peace said, there were other reasonable alternatives so that the second part of the necessity defence could

not possibly apply. For example, the defendant testified that he was "five blocks" from his home, so he decided to speed home: see page 26 of the transcript at trial. He also said that there were "no gas stations or restaurants for several blocks": see page 27 of the trial transcript, which implies that there were gas stations or restaurants no further than several blocks away. So he could have, instead of speeding, just drove to one of the gas stations or restaurants, which were several blocks away.

Further, why did he not use the bathroom before he left Walmart or why not use an adult diaper which he was asked at trial about, to which he answered, "my condition does not require me to wear Depends under normal circumstances, nor would it any other normal human being with the same condition." If he has to go to the bathroom within a few minutes of feeling the need to urinate, then adult diapers would assist him. He could easily avoid what he now claims to be an imminent peril. The bottom line is this. There were numerous options to address this problem before it arose or after it arose.

Let me make another observation. Driving is a privilege. People who choose to drive must follow the rules of the road. If they have medical conditions that make it difficult for them to comply with the law, then they best not drive. Mr. Vezina's bladder issues do not exempt him from the rules of the road. Mr. Vezina seeks to argue, in effect, that he has a medical condition that can somehow exempt him from compliance with the law. He seeks, in effect, to advance a medical defence. In reality, it is no defence at all. If the defence of necessity were available to Mr.

Vezina on the facts of this case, why would it not apply to a parent driving a small child who is out of diapers, but who desperately needs to go to the bathroom and who may soil themselves. If the defence of necessity applies to Mr. Vezina, then it would have to apply to the parent who breaks the law and speeds to try to avoid their child soiling themselves. This is merely another example of why Mr. Vezina's case does not give rise to an "imminent peril or danger". In my view, Mr. Vezina's necessity argument is entirely without merit and an excessive amount of court time has been spent devoted to considering it.

CONCLUSION To summarize, whether the onus is on Mr. Vezina to prove the necessity defence on a balance of probabilities or whether he only has to point to sufficient evidence to put the issue in play, and the Crown has to prove it is not available beyond a reasonable doubt, does not matter. The necessity defence cannot possibly apply on the facts of this case for the reasons I have given. The judgment of the Justice of the Peace is affirmed and the appeal dismissed. **********