When you need a veteran paralegal to make it right!

CITATION: Sajan v. York (Regional Municipality), 2019 ONCJ 315
DATE: 2019·05·10

In the fast-paced world of Provincial Offences Court, a traffic ticket can feel like an open-and-shut case. For many, the path of least resistance is to simply pay the fine and move on. But for one individual, a charge of Careless Driving under the Highway Traffic Act led to a conviction that, upon closer look, rested on shaky ground. This is where the expertise of a seasoned paralegal like Peter Swales comes in, turning what seemed like a final verdict into a resounding victory for his client.

A conviction for Careless Driving means 6 Demerit Points, a heafty fine, and often leads to having your insurance cancelled, or unaffordable.

The case,

Sajan v. York (Regional Municipality), hinged on a single, crucial issue: identification of the accused.

At the initial trial, the agent representing Ms. Sajan, Mr. Kinapen, moved for a “non-suit,” arguing there was no credible evidence to even suggest his client was the driver of the vehicle in question.

“Sketchy” Evidence and a Questionable Identification. The prosecution’s case relied on a single eyewitness, the driver of the other vehicle involved. When asked to identify the driver who hit him, a year after the incident, his memory was admittedly “vague”. His attempt at an in-court identification was laced with uncertainty: “I think it’s her”. Even the prosecutor admitted that the identification evidence was “a sketchy one”.

Despite this, the Justice of the Peace dismissed the non-suit motion, finding that while the evidence might be “weak,” it was sufficient to potentially lead to a conviction. Ms. Sajan was subsequently convicted of Careless Driving.

The Appeal: A Masterclass in Legal Argument
Representing Ms. Sajan on appeal at the Ontario Court of Justice, Peter Swales skillfully dismantled the foundation of the conviction. The appeal focused on the error made by the Justice of the Peace in dismissing the non-suit motion.

Justice Kenkel, the presiding judge on the appeal, agreed with the appellant’s position. He pointed out that the eyewitness testimony was not just weak; it was the type of evidence that would “necessarily leave reasonable doubt in the mind of a reasonable juror”. The judge noted that the prosecution had not called the investigating officer, leaving a gaping hole in their case with no other evidence on the critical point of identification.

The prosecution attempted a new argument on appeal, suggesting the court could infer the driver’s identity from the accident report. However, as Justice Kenkel pointed out, this argument was flawed for several reasons:

It wasn’t raised at the trial.

There was no evidence an officer had even received such a report from the accused.

Critically, Supreme Court precedent prevents such reports from being used to prove a central element of an offense, as it would violate the accused’s Charter rights.

Victory and Vindication
Ultimately, the appeal was successful. Justice Kenkel found that the failure to dismiss the case resulted in an unfair conviction. He overturned the conviction and entered a verdict of acquittal.

This case is a testament to the skill and diligence of paralegals like Peter Swales. His understanding of legal principles, from the test for a non-suit to the nuances of Charter rights, allowed him to see the path to victory where others might have seen a dead end. It underscores the vital role that knowledgeable and experienced paralegals play in upholding justice, ensuring that a conviction cannot stand on evidence that is merely “sketchy.” For anyone facing a provincial offence, this case serves as a powerful reminder that with the right representation for any ticket can be challenged and won.