R v Nerian

Nerian v. Her Majesty the Queen

Court File No. 954885
Ontario Court of Justice — Justice Sheila Ray | January 11, 2010

Background

On September 13, 2005, Barak Nerian was driving an all-terrain vehicle on a busy public highway in Toronto when he struck the rear of another vehicle that was turning into a strip mall. His ATV vaulted over the other vehicle and landed in the parking lot. Nerian was rushed to Sunnybrook Hospital with two broken legs and other serious injuries. He had no insurance on his vehicle, no helmet, and no licence plates.

Nerian was charged under the Compulsory Automobile Insurance Act and received the minimum sentence of $5,000 plus costs, totaling $6,255. He was given 12 months to pay. At trial, he pleaded guilty through an agent. When he couldn't pay the fine, he sought relief under section 59(2) of the Provincial Offences Act, which allows courts to vary sentences in cases of undue hardship. The Justice of the Peace denied his request, so Nerian appealed to the Ontario Court of Justice.

Issues

1. Whether the Justice of the Peace properly considered all relevant factors when denying relief from the minimum fine
2. Whether Nerian's exceptional financial and physical circumstances justified varying the sentence under section 59(2) of the POA

The Undue Hardship Analysis

Justice Ray found that the Justice of the Peace made several critical errors. While the JP correctly noted the aggravating factors — driving an unlicensed, uninsured ATV on a busy highway without safety equipment, causing a violent collision — he failed to properly weigh the mitigating circumstances.

Most importantly, the JP speculated about potential income replacement benefits Nerian might receive from insurance on another vehicle, despite having no evidence such coverage existed. The JP also glossed over Nerian's dire situation: he became permanently disabled from the accident, suffers constant pain, has severely limited mobility, can't sleep properly, lost his work as a general contractor, has no income, isn't entitled to disability benefits (he's not a Canadian citizen), and his pregnant wife has limited income while working on a permit.

Under section 59(1) of the POA, courts must consider whether circumstances make it "unduly oppressive" to require payment of the fine. Justice Ray emphasized that you can't assess this "without reference to these factors" — meaning the defendant's actual ability to pay must be the central consideration.

Key Takeaway

Even with serious driving offences and minimum fines, courts must genuinely consider your financial reality when you seek hardship relief.

If you're facing a minimum fine you can't afford, document your financial circumstances thoroughly and don't let the court speculate about income sources that don't exist. Justice Ray reduced Nerian's fine from $6,255 to $1,000 with three years to pay, showing that even minimum penalties aren't always final.