



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Topol, 2021 ONCA 217

DATE: 20210407

DOCKET: C67875

Pardu, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Topol

Appellant

Robert Topol, acting in person

Chris G. Bendick, for the respondent

Heard and released orally:
    April 6, 2021 by video conference

On appeal from the decision of Justice
    Nyron Dwyer of the Ontario Court of Justice, dated April 12, 2019, dismissing
    the appeal from the conviction entered by Justice of the Peace Rhonda
    Shousterman on August 14, 2018

REASONS FOR DECISION

[1]

The appellant was convicted of speeding by a justice
    of the peace for driving at 91 km/h in a 50 km/h zone. His appeal to the
    provincial offences appeal court was dismissed.

[2]

Roberts J.A. granted leave to appeal that
    decision, noting there is good reason to believe that the appeal judge
    misapprehended the mathematical errors the moving party highlighted and erred
    in mischaracterizing the discrepancies as minor. Citing
R. v. Morillo
,
    2018 ONCA 582, 362 C.C.C. (3d) 23, she added that the appeal raises special
    ground in that it concerns process issues essential to the public interest and
    for the administration justice, namely the scrutiny of officers oral
    testimony in traffic offences involving self-represented accused.

[3]

The charging officer testified at trial that he
    measured the time and distance travelled by the appellant, but this testimony implied
    a speed widely different from that measured by the radar device. The respondent
    concedes that the discrepancy between the officers testimony and the radar
    reading was significant and could have raised a reasonable doubt as to whether
    the speed-measuring device was functioning properly. The respondent concedes
    that the justice of the peace made a palpable and overriding error in failing
    to consider this evidence and that a new trial is required. We agree.

[4]

The conviction is set aside, and the matter is
    remitted back to the trial court for a new trial. The respondent indicates that
    it will withdraw the charge as it is no longer in the public interest to
    continue the prosecution.

[5]

Mr. Topol seeks costs
    for his expenses, time, and trouble dealing with this proceeding. The general
    rule is that no costs are awarded in a proceeding under the
Provincial
    Offences Act
, R.S.O. 1990, c. P.33:

see
R. v. Felderhof
(2003), 68 O.R. (3d) 481 (Ont. C.A.), at para. 100;
R. v. Kazemi
, 2013
    ONCA 585, 117 O.R. (3d) 300. These appeals resulted from an error by the trial
    justice, and we see no basis to award costs.

G. Pardu J.A.

David
    Brown J.A.

David
    M. Paciocco J.A.


