R. v. Hajkowski, 2020 ONCJ 667

ONTARIO COURT OF JUSTICE CITATION: R. v. Hajkowski , 2020 ONCJ 667 DATE: February 26, 2020 COURT FILE No.: Brampton 3111 998 18 4932 BETWEEN: HER MAJESTY THE QUEEN — AND — HENRYK HAJKOWSKI Before Justice G.P. Renwick Heard on 25 and 26 February 2020 Reasons for Judgment released on 26 February 2020 A.

Alrohani........................................................................................... counsel for the Crown The defendant Henryk Hajkowski........................................................... on his own behalf RENWICK J.: INTRODUCTION [ 1 ] The Defendant is charged with driving with an excess blood alcohol concentration, breaking, entering and committing mischief, and mischief to property. The Defendant represented himself. [ 2 ] The prosecutor called six witnesses. The Defendant testified. This was a brief trial.

The only real issue for my consideration is whether or not the prosecution has proven the offences beyond a reasonable doubt. [ 3 ] As with any trial, there are credibility and reliability issues and what weight is to be given to evidence that is accepted. However, the Defendant did not contradict most of the prosecution’s evidence. In fact, he corroborated much of the prosecution’s evidence with his testimony. The Defendant takes issue with the police officer’s characterization that they knocked on his front door when they came to arrest him.

As well, the Defendant does not accept that he caused a significant amount of damage to the gate of the impound lot when he climbed into an unlocked window and disabled the motorized gate to extricate his rental car. GENERAL PRINCIPLES [ 4 ] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of the defendant beyond a reasonable doubt.

Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt by admissible evidence. The prosecution’s burden of proof never shifts during the trial. Proof beyond a reasonable doubt is a high threshold. [ 5 ] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial.

While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities. [1] If after considering all of the admissible evidence I am sure that the Defendant committed the alleged offence I must

convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow. THE EVIDENCE AND FINDINGS OF FACT [ 6 ] I am satisfied that the Defendant drove a motor vehicle after having consumed alcohol. He testified that he only consumed two to three beers prior to driving.

However, I have no evidence about the quantity of alcohol or the concentration of alcohol in the Defendant’s beverages. [ 7 ] The Defendant confirmed that he arrived back at the Holiday Inn when police were present and he did not dispute the prosecution’s evidence that he provided a road-side breath sample into an approved screening device and registered a “fail.” The police arrested the Defendant, gave him his rights to counsel, and made an evidentiary breath demand. None of this evidence was challenged.

I accept that this occurred. [ 8 ] At the police station, the Defendant spoke to duty counsel and completed that call several minutes before he provided his first breath sample directly into an approved instrument. I rely on the certificate of Qualified Technician. It establishes all of the prerequisites, along with the test record, that was made an exhibit pursuant to s. 320.33 of the Criminal Code , for the admissibility of this evidence.

In effect, there was no challenge to the admissibility of any of the evidence relating to the Defendant’s blood alcohol concentration at the time he was observed driving a motor vehicle. [ 9 ] As one might expect in a trial with a self-represented Defendant, there were no applications to exclude evidence under the Charter , or any arguments respecting the presumptions of accuracy and identity. [ 10 ] I am satisfied that there are no obvious grounds for Charter relief.

The police appear to have complied with their obligations in the detention, arrest, right to counsel, and evidence gathering stages of this investigation. [ 11 ] Moreover, for the reasons I gave in R . v. Bhandal , 2019 ONCJ 337 , I am satisfied that the presumptions of accuracy and identity remain intact for this transitional case. [ 12 ] Respecting the alleged offences at the towing impound, the Defendant accepts that he did break into the compound, by climbing through an unlocked window, he disabled their mechanical gate, and he left the lot with his rental car.

He was angry that his property had been moved and put into disarray. I accept this evidence. DISCUSSION [ 13 ] There was no real contest on the facts of this case. The Defendant operated a motor vehicle with an impermissibly high blood alcohol concentration. The Defendant walked through a partially open gate and climbed into an unlocked window at the towing compound. He borrowed some tools. He disabled the mechanical gate in order to drive his rental car off of the lot. [ 14 ] The Defendant testified that he went to the towing lot to get his painkillers from his car.

He said he was only trying to retrieve his property. He told the court that initially he did not even want to remove his rental car from the lot. The Defendant testified in a believable way. He had documents to corroborate all aspects of his account. His memory was good. His explanations were plausible. [ 15 ] I accept the Defendant’s evidence.

It was not undermined or significantly challenged by cross-examination, or other evidence. [ 16 ] This leaves me with a reasonable doubt that the Defendant broke into the towing compound for the purpose of committing any criminal offence. [ 17 ] Similarly, I am not satisfied beyond a reasonable doubt that when the Defendant disengaged the gear of the gate mechanism, in order to remove his rental car, he did so with the requisite intent to render the property “dangerous, useless, inoperative or ineffective” or that he wilfully “obstruct[ed], interrupt[ed] or interfere[ed] with the lawful use, enjoyment or operation of the property,” as required by ss. 430(1) (

b) or (

c) of the Criminal Code . [ 18 ] The Defendant testified, and I believe him, that he offered to show the police how to restore the mechanical gate to proper working order. I find that the Defendant only wanted to remove his property and leave the towing compound as he had found it. Accordingly, I find that the requisite mens rea (or mental state) for the offence of mischief has not been proven beyond a reasonable doubt. CONCLUSION [ 19 ] I find Henryk Hajkowski guilty of having an excess blood alcohol concentration while driving (count 1) and not guilty of counts 2 and 3. Released: 26 February 2020 Justice G. Paul Renwick