R. v. Weizman, 2013 ONCJ 9

Citation: R. v. Weizman , 2013 ONCJ 9 R. v. Simon Weizman Between Regina and Simon Weizman Ontario Court of Justice Toronto, Ontario P. Kowarsky J.P. Heard: October 1st 2012 Judgment: January 14th 2013 Provincial Prosecutor: Mr. S. Davidson The Defendant represented himself REASONS FOR JUDGMENT P. KOWARSKY J.P. A. THE CHARGES 1 . The defendant is charged with Careless Driving contrary to the Highway Traffic Act,

section 130. 2 . At the conclusion of the trial, at the request of the prosecutor, I dismissed the second charge of ‘Fail to stop for police when directed’ contrary to section 216 (2) of the Highway Traffic Act. 3 . Consequently, in reaching my decision, I will rely only on the evidence with respect to the charge of Careless Driving without any material reference to the evidence relating to the second charge. B. THE EVIDENCE FOR THE PROSECUTION 4 . The evidence of Officer Kyriakos Petrakis may be summarised as follows:

a) On January 3 rd 2012 at approximately 10:20 pm, he was driving his personal motor vehicle northbound on Davenport Road, Toronto, heading towards 11 Division.

b) He was the second motor vehicle stopped at a red light at the intersection of Davenport Road and Dupont Road. The light turned green, and he began to drive forward. A motor vehicle was driving very closely behind him. It was being driven erratically, and was swerving from left to right. The driver of that vehicle was trying to overtake him in the right hand lane, but couldn’t.

c) He then stopped at a Stop Sign at the intersection of Davenport Road and Huron Street; there were two vehicles stopped in front of him. Of the three lanes, the left lane was to turn onto Dupont, the right one was also to turn onto Dupont, and the middle lane was the only one for traffic travelling straight to go North on Davenport Road.

d) The vehicle behind him was the same vehicle that he had seen being driven erratically and swerving. That vehicle accelerated into the oncoming traffic lane to pass him, and then squeezed back into the westbound lane of Davenport Road. e) “Opposing drivers also had to stop to let him back into the westbound lane.” The driver, who “had total disregard for people,” then turned north on Walmer Road, and continued north on Spadina Road. “At that time he was driving properly.”

f) The evidence hereafter relates to the officer’s trying to stop the driver, who did not stop, according to the defendant, because the officer was not in uniform, and he was frightened by the officer’s attempts to stop him.

g) After calling 911, and telling the operator that he was extremely afraid in the circumstances, the operator told him to drive to 52 Division, which he did. A short while after arriving there, the officer arrived as well.

h) The officer identified the defendant as the driver of the vehicle concerned, was satisfied with his identification, and charged him with the two charges which were before the court for the duration of the trial.

i) There were no issues with respect to the identification of the officer’s vehicle as being a dark green Jeep Cherokee, which has “a higher drive ride than the average motor vehicle.” C. THE EVIDENCE FOR THE DEFENCE 5 . Mr. Simon Weizman testified on his own behalf. He told the court that as soon as he arrived at 52 Division, he immediately typed everything that had just happened, and emailed it to himself at about 11:30 pm on January 3 rd 2012. On January 4 th at about 1:16 pm he read over that email, and made certain revisions. After proper qualification, I allowed the defendant to refer to his email notes to refresh his memory. In

summary, the defendant’s evidence is as follows:

a) On January 3 rd 2012 at about 10:20 pm he was driving his silver Honda motor vehicle westbound on Davenport Road, just east of Bedford Road, in Toronto.

b) In his rear view mirror he observed a green coloured Jeep “swerving and changing lanes rapidly”.

c) He stopped at the red light at Davenport Road and Bedford Road. Another motor vehicle was also stopped at the red light just left of his vehicle. As soon as the light turned green that vehicle raced to get into his lane, and “cut in front of me without signalling. I was now behind him.”

d) At the next intersection he made a “split second decision to put as much distance between me and him as possible,” and so he overtook the green Jeep and the motor vehicle in front of it, and went through the Stop Sign. He perceived the driver of the green Jeep “ to be an out of control driver.”

e) In his rear view mirror he then saw the green Jeep drive around the vehicle in front of his, which was stopped at the Stop Sign. The driver of the green Jeep appeared to be chasing him “with great speed to catch up to me.”

f) The defendant signalled to turn right onto Spadina Road northbound, passed Casa Loma. He was very afraid because he didn’t know what the driver of the green Jeep was capable of doing. The driver stopped his vehicle in the oncoming traffic lane of Spadina Road, and showed a badge to the defendant, who had never seen one before. The person was in casual clothes, and the defendant was not prepared to take a chance and get out of his car because he was afraid. 6 .

The evidence thereafter related to the charge of failing to stop for a police officer when directed, which I dismissed at the end of the trial at the request of the prosecutor. 7 . During his testimony, the defendant read the “Event Details Report” from the 911 call which he had made when he feared that he was being unlawfully chased. The Report essentially corroborates what the defendant testified in relation to the other driver who was in casual clothes, the description of the vehicle, and the fact that he was afraid to open his door. 8 .

In his submissions, the defendant told the Court that “my part was a temporary lapse of judgment but I was afraid – he was chasing me.” D. ANALYSIS OF THE LAW 9 . In regard to the charge of Careless Driving,

section 130 of the Highway Traffic Act provides as follows: "Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less that $400 and not more than $2000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years." 10 . Our courts have held that the standard required of drivers in the context of

section 130 is an objective one which is constantly shifting, depending on the road, visibility, weather and traffic conditions that exist at the time or that may

reasonably be expected, as well as any other conditions that ordinary drivers would take into consideration. 11 . In R. v. Weedon (1987), 7 M.V.R. (2d) 21 (B.C.Co.Ct) the Court held that in Careless Driving cases "the actus reus is improper driving judged on an objective basis. The lack of due care and attention can then be inferred from the objective indicator." 12 . In R. v. Globocki, [1991] O.J. No. 214 (O.C.J.) , the Court held that the Prosecution is required to show sufficient departure from the standard of a prudent and reasonable driver to render the driving "deserving of punishment." 13 . In R. v.

Belisle [1992] Y.J. No. 119 , the Court expressed that principle in this way: "... in law the Court must focus on the elements alleged to constitute careless driving, and not on the consequences of the driving.” 14 . In Globocki, the Court held that in each case "it is necessary to consider whether and to what extent the defendant departed from the standard appropriate to the factual circumstances facing the defendant." 15 . There is clearly conflicting evidence between the Prosecution and the Defence with respect to the entire incident, which gave rise to this charge of Careless Driving.

In essence, the conflict needs to be resolved by way of the credibility test established by the Supreme Court of Canada in R. v. W.D. [1991] 1 S.C.R. 742. Cory J. set out the Credibility Test as follows at paragraph 28: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 16 . On the one hand, the officer testified that the defendant was driving erratically, very closely behind him, and swerving from left to right. His evidence is that the defendant went through a Stop Sign in order to pass his and another vehicle. According to the officer, this constituted Careless Driving. On its face, this evidence appears to support a conviction. 17 .

Since this is a strict liability offence, even if the Prosecution proves the actus reus of the offence beyond a reasonable doubt, the defendant may escape liability if he is able to satisfy the Court, on a balance of probabilities, that he had conducted himself with due diligence in the circumstances in that he took all reasonable steps to avoid committing the offence or that he acted on a mistaken belief of facts which, if true, would have rendered the act innocent. 18 .

On the other hand, the testimony of the defendant is that the driver of the green Jeep was the one who was driving erratically, and that he made an effort to distance himself from that driver, whom he later discovered was a police officer in plain clothes driving his personal motor vehicle.

19. Each version of the events which gave rise to the charge is diametrically opposed to the other. However, the defendant did testify thatin his effort to distance himself from the other driver, who had frightened him by his manner of driving, he made a “split seconddecision” to pass the two vehicles which were stopped in front of him at a Stop Sign. Doing so, he submitted, amounted to “a temporarylapse of judgment”. 20. The higher courts have held that a simple error of judgment is insufficient to justify a conviction of Careless Driving. See: R. v.Wilson, (ON CA), 1971] O.R. 349, 1 C.C.C. (2d) 466 (Ont. C.

A.), R. v. Namink (1979), 27 Chitty’s L.J. 289 (Ont.Co. Ct.) and R. v. Marceau (1978), 2 M.V.R. 202 (Que. S. C.). E. FINDINGS 21. Having asked myself whether on the basis of all the evidence which I heard, I am convinced beyond a reasonable doubt that thedefendant is guilty of Careless Driving, the answer is that I am not. Accordingly, I am left with a reasonable doubt, which must always beresolved in favour of the defendant. F. DISPOSITION 22. For these reasons I find the defendant not guilty. P. Kowarsky J.P. January 14th 2013