R. v. Matys, 2014 ONCJ 3

ONTARIO COURT OF JUSTICE DATE: 2014·01·07 COURT FILE No.: CENTRAL EAST 8144720A Citation: R. v. Matys , 2014 ONCJ 3 IN THE MATTER OF an appeal under Section 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: IHOR MATYS Appellant — AND — HER MAJESTY THE QUEEN Respondent Before Justice G.D. Krelove Heard on October 1, 2013 Reasons for Judgment released on January 7, 2014 Mr. M. Walt ........................................................................................................ for the Appellant Mr. S.

Feeney .............................................................................................. for the Respondent On appeal from conviction by Justice of the Peace D. Clark on November 21, 2012. KRELOVE J.: [ 1 ] The appellant Ihor Matys appeals his conviction after trial on a charge of “driving while crowded” contrary to s. 162 of the Highway Traffic Act. The appeal is brought pursuant to s. 135 of the Provincial Offences Act .

The appellant requests that this court allow the appeal and enter an acquittal or, alternatively, order a new trial. [ 2 ] The grounds of appeal as set out in the Notice of Appeal read as follows: The Justice error in law. There was no evidence to support the conviction.

Appellant will be relying on the trial transcripts. [ 3 ] In the oral submissions made before me, the appellant’s agent expanded the grounds of appeal and argued as follows: 1. there was no evidence that the dog interfered with the proper management or control of the car; 2. the learned Justice of the Peace failed to consider the appellant’s evidence that after the dog jumped up on his shoulder/seat area, he intended to pull over as soon as it was safe to do so given the nature and volume of the surrounding traffic; 3. the learned Justice of the Peace erred in permitting Officer Carl Jarvis to testify about other investigations he had been involved with relating to motor vehicle accidents caused by pets moving around in a motor vehicle.

Overview of the Facts [ 4 ] This was a two witness case. Constable Carl Jarvis testified for the Crown and the appellant testified on his own behalf. [ 5 ] The appellant was driving east along County Road 88 in the Town of Bradford West Gwillimbury in his Toyota Corolla. The road is a four lane highway. Traffic was heavy. The appellant’s mother was in the back seat. A small chihuahua dog weighing about three pounds was seated upon the mother’s lap. As the appellant was driving, the dog jumped up on to the top of the upper area of the driver’s seat and laid down.

The small dog was now partially lying on the seat and the appellant’s neck. Officer Jarvis noted this situation and followed the appellant’s vehicle for about two kilometres before he pulled the appellant over. The dog was not leashed. Analysis [ 6 ]

Section 162 of the Highway Traffic Act reads: No person shall drive a motor vehicle with persons or property in the front or driver’s seat so placed as to interfere with the proper management or control of the motor vehicle. [ 7 ] The learned Justice of the Peace in his reasons stated that: .....the purpose of the legislation under 162 is to not interfere with the proper management or control of the vehicle, and to prevent possible situations that could result in the driver losing control of the vehicle. [ 8 ] I agree with this

interpretation to a certain extent. The potential to interfere with the management or control of the vehicle must be a realistic one and more than a mere possibility. [ 9 ] The learned Justice of the Peace did accept that the small dog did unexpectedly jump from the mother’s lap on to the driver’s seat and neck area of the appellant.

The learned Justice of the Peace also found that Officer Jarvis followed the appellant’s vehicle for about two kilometres and at no time did the appellant attempt to pull over to the side of the road as he should have done so to remove the dog from his neck area. [ 10 ] I agree with the learned Justice of the Peace that this was a situation where the appellant should have pulled his vehicle over as soon as reasonably practical so that he could safely remove the dog from its hazardous location. [ 11 ] However, the appellant testified (and this evidence was not rejected by the learned Justice of the Peace) that traffic was very heavy and he had cars on either side of him and he was not able to pull over to a safe position at any time before he actually did.

The appellant testified as follows: Okay, in order for me to deal with the dog, since I’m in the middle lane, I would have to take my hands off the steering wheel and, I don’t know, like turn around and pass the dog to my mother, and I choose to – I decided at the time that that wasn’t the safe thing to do.

I was just focusing on the direction I was travelling, and I didn’t want to, you know, like, if any cars stopped right in front of me abruptly, like I could not afford to take my eyes off the street, so I was just driving, waiting until I had an appropriate opportunity to deal with the dog situation. [ 12 ] In my view, the learned Justice of the Peace erred in failing to consider the appellant’s evidence that after the dog jumped up to the area of his seat and neck, he intended to pull over his vehicle as soon as he could safely do so and remove the dog.

In this case, the appellant was not able to safely pull over until he travelled some two kilometres. [ 13 ] Normally, I would allow the conviction appeal and send this matter back for a new trial. However, in light of the fact that the offence date in this

Part 1 matter is May 6, 2012 and also considering that the appellant gave an explanation at trial as to why he did not pull over immediately which explanation was not rejected by the learned Justice of the Peace, the more fair and just disposition of this appeal is to enter an acquittal on the charge. Conclusion [ 14 ] The appeal against conviction is allowed and an acquittal shall be entered. Released: January 7, 2014 Signed: “Justice Glenn D. Krelove” Justice Glenn D. Krelove, O.C.J.