R v Hajivasilis

R. v. Hajivasilis

[2012] O.J. No. 859
Ontario Court of Justice — C. Mocha J. | January 23, 2012

Background

Ioannis Hajivasilis was charged under section 199.1 of the Highway Traffic Act for failing to report an accident that occurred on October 1, 2007. The key fact that would doom the prosecution's case: the accident happened in a supermarket parking lot that was used solely for parking — not as a combined parking lot and thoroughfare.

The trial began in January 2009 before His Worship Angelo Cremisio. After two adjournments, something happened that changed everything. In February 2009, the Ontario Court of Appeal released its decision in Shah v. Becamon, which fundamentally altered how courts interpret what constitutes a "highway" under the Highway Traffic Act. When the trial resumed in April 2009, His Worship brought this new case to counsel's attention and eventually dismissed the charge based on the Shah decision.

Issues

1. Does the Highway Traffic Act apply to accidents that occur in private parking lots?
2. Was the trial judge bound by the Court of Appeal's decision in Shah v. Becamon?

The Definition of "Highway"

The Highway Traffic Act defines "highway" in section 1.1 as including "a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct, or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof."

In Shah v. Becamon, the Court of Appeal concluded that a private parking lot does not fall within this definition of "highway." The Court stated: "Indeed, not surprisingly, the entire Highway Traffic Act applies to what its title foreshadows, highways." The Crown argued that section 199.1 doesn't specifically use the word "highway" so it should apply everywhere, but Justice Mocha rejected this interpretation.

The judge explained that if the Lieutenant Governor wants the Highway Traffic Act to apply to places other than highways, section 1.1 specifically provides the mechanism: "The Lieutenant Governor and Counsel may make regulations providing that this Act or any provision of this Act or of a regulation applies to a specified place or class of place that is not a highway." No such regulation had been passed for parking lots.

The Procedural Problems

Justice Mocha noted significant procedural irregularities in how the case was handled. When His Worship learned about the Shah decision, the proper procedure would have been for the Crown to continue its case, and then the defence could have moved for a nonsuit. Instead, the trial judge essentially stopped the proceedings and dismissed the charge without following proper procedure. However, since all parties had already agreed that the accident occurred solely in a private parking lot, continuing the trial wouldn't have changed the outcome.

Key Takeaway

The Highway Traffic Act only applies on actual highways — not in private parking lots, unless specific regulations extend it to those areas.

This decision shows the importance of challenging jurisdiction in Highway Traffic Act cases. If your alleged offence occurred on private property rather than a public highway, the Act may not apply at all, regardless of what the charging provision says.