Case Name:

R. v. Nikiforos

IN THE MATTER OF the Provincial Offences Act R.S.O.1990

BetweenHer Majesty the Queen, and

Ioannis Nikiforos

[2008] O.J. No. 3180

Ontario Court of JusticeToronto, Ontario

N. Tahiri J.P.

Oral judgment: June 4, 2008.

(12 paras.)

Charges: s. 106(3) Highway Traffic Act - Passenger - Fail to Wear Complete Seatbelt Assembly.

Counsel:

Ms. I. Szenes, Municipal Prosecutor.

Mr. M. Riddell, Agent for the Defendant.

REASONS FOR JUDGMENT

1 N. TAHIRI J.P. (orally)::-- Okay, the matter before the Court are two counts against twodifferent defendants, Mr. Vlachos, Evangelos and Nikiforos is the second defendant. The chargewas laid according to the certificate of offence on the 17th day of June, 2007, at around 3:28 a.m.,after midnight and the charges are both - both these defendants are charged with Passenger Fail toWear Complete Seatbelt Assembly, contrary to Highway Traffic Act.

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2 Prosecution made a motion at the outset that both the defendants - rather, the agent for thedefendants made a motion that given that both counts arising from the same set of circumstances sothe matters should be heard jointly. The prosecution did not have any - did not take any issue withthis proposition and so therefore Court proceeded; Court also considered that to be an expeditiousway to proceed with both defendants, so the matters heard jointly.

3 The onus is on the prosecution to prove the defendant's guilt beyond a reasonable doubt. Inorder to do so, the prosecution called upon the officer in charge of this investigation. The officerindicated that on the day in question, he was in - this was a Sunday morning, according to theofficer and he was in full uniform capacity as a paid police officer and he was in charge of a laneclosure on Highway 404, north of Sheppard and he was - at this time was in a fully marked policevehicle and the officer indicated that due to construction on this stretch of the road, the three lanesof the Highway 404 going northbound, three of those lanes of the four, four lane highway wereclosed and so the only remaining left - passing lane or lane number one, allowed the traffic to moveforward.

4 And the officer, at this time, was in his vehicle situated perpendicularly to the traffic movingnorthbound on Highway 404 on one lane. And at this time the officer, at around 3:28 a.m., hisattention was drawn first from some distance, 50 to 60 feet away, to a car and subsequently whenthis vehicle, which was a taxi cab, approached the officer's position, he heard the passengers - oneof the passengers on the back seat of this vehicle pulled out his head and screamed profanity at theofficer.

5 The officer immediately drove toward the vehicles and moved beyond, directly behind this caband at this time the officer observed that both passengers reaching over to the straps that washanging at this time, according to the officer's evidence and each passenger start to putting on theirseatbelts and the officer noticed each passenger grabbing the strap and pulling it toward their hipsand even the officer stated that he noticed the - noticed the passengers moving their head downwardtowards their hip in order to make sure that the seatbelts are properly buckled and noticing thisinfraction, the officer pulled over this vehicle and after establishing the identity of the passengers,charged both - both defendants with charge of Passenger Fail to wear Complete Seatbelt Assembly.

6 The officer indicated that this stretch of the highway, the normal condition is that the speedlimit of this stretch is 100 kilometres per hour, but given that only one lane of traffic was movingand there was construction, the traffic slowed to 40 kilometres per hour. He indicated that the trafficwas moderate, the lighting was good and the officer could see inside the vehicle through the throughhis windshield and through the back window of the cab that was driving in front of him and heobserved clearly the movements of the two passengers reaching over their shoulder and grabbingthe seatbelt.

7 Now, these two - the two defendants are not in attendance in Court at this time, but they arerepresented by an agent. The agent raised some issues as to the motivation of the officer and

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whether the officer - because when first the officer observed this vehicle he did not notice,according to the evidence, any infraction but he indicated that the reason for his pursuit, or thereason for him to follow this vehicle was the fact that he wanted to, after hearing the profanities, hewanted to make sure that there is no safety issue with the passengers. And in response to a questionas to the - whether there was any traffic or any cars driving behind the taxi cab, the officer statedthat he has no recollection as to whether there were any traffic, but he nevertheless indicated thatthere was no car between his vehicle and the taxi cab that he was following before laying thecharges and he never lost the sight of this vehicle and also he indicated that he never lost sight ofthe vehicle.

8 Given that all the circumstances of this case, the time of the night, the issue of visibility,whether the officer could see everything at this time although the officer's - I should state that hisevidence is uncontradicted and defence did not call any evidence, but given the first - the officer didnot observe any infraction and initially did not notice whether the passengers were wearing theirseatbelts, but later on the movement of the passengers, the motion that they made and also the strapscaught the attention of the officer. Given that this happened at 3:30, or the exact time was 3:28 a.m.,it's dark out and that officer was driving and so I believe that reasonable doubt is raised.

9 I therefore dismiss both charges against the defendant. I also consider the fact that the officerdid not have any recollection about the as to the traffic and whether there were cars behind this taxicab and there was some issue as to the answers to the question that was posed by the agent as tohow he was able to get in behind this car and the officer's evidence was that once he activated hisemergency equipment, then the approaching vehicles gave him right of way, or allowed him tomove in, so - but before that, he said that he had no recollection of whether there were any carscoming at that time. So, given all the circumstances of this case, I believe that reasonable doubts areraised. I therefore dismiss both charges against the two defendants.

10 MR. RIDDELL: Thank you, Your Worship.

11 THE COURT: Thank you.

12 MR. RIDDELL: Thank you.

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