R. v. Abdo, 2015 ONCJ 44

ONTARIO COURT OF JUSTICE CITATION: R. v. Abdo, 2015 ONCJ 44 DATE: 2015-01-29 COURT FILE No.: Kitchener BETWEEN: HER MAJESTY THE QUEEN — AND — NADIFA ABDO Before Justice of the Peace Thomas Stinson Heard on December 2, 2014 Reasons for Judgment released on January 29, 2015 Cases cited: R. v. Beauchamp, (ON CA), [1953] O.R. 422, [1953] 4 D.L.R. (C.A.) R. v. Wilson (1971), (ON CA), 1 C.C.C. (2d) 466, [1971] 1 O.R. 349 (C.A.) R. v. Ereddia (2006), 2006 ONCJ 303 , 37 M.V.R. (5th) 179 (Ont. C.J.) R. v. W.(D). (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.) R. v. Smith (2002), 30 M.V.R. (4th) 160 (Ont. C.J.) R. v.

Grzelak, [2010] O.J. No. 6220 (Ont. C.J.) R. v. Richards, 2009 ONCJ 648 , [2009] O.J. No. 5774 (Ont. C.J.) Greater Sudbury (City) v. McNeil, [2012] O.J. No. 1315 R. v. G.R., 2005 SCC 45 , [2005] 2 S.C.R. 371 R. v. Simpson (No. 2) (1981), (ON CA), 58 C.C.C. (2d) 122 (Ont. C.A.) R. v. Foote (1974), (NB CA), 16 C.C.C. (2d) 44 (N.B.S.C.A.D.) Statutes cited: Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 130, 136(1)(b), 142(1), 142(2), 144(18), 148(5), 154(1)(a), 158(1) Provincial Offences Act, R.S.O. 1990, c. P.33, s. 55 Criminal Code, R.S.C. 1985, c. C-46, s. 662

Alex Andres .................................................................................................... Provincial Prosecutor Peter Speyer, Q.C. .................................................................... counsel for the accused Nadifa Abdo JUSTICE OF THE PEACE STINSON: [1] On May 2, 2013, Nadifa Abdo was in a motor vehicle collision at the intersection of Bleams Road and Queen Street in theTownship of Wilmot. The vehicle that Ms. Abdo was driving crashed into a pickup truck that was driven by Michael Litschgy. As aresult of this accident, Ms. Abdo was charged with the offence of careless driving, pursuant to

section 130 of the Highway Traffic Act,R.S.O. 1990, c. H.8, as amended. That

section reads, in part, 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 andattention or without reasonable consideration for other persons using the highway.” [2] On behalf of the crown, I heard evidence from David Vandermeulen, a forensic identification officer with the WaterlooRegional Police Service, Timothy Boniface and Scott Metcalfe, also police officers with Waterloo Regional Police, as well as from Mr.Litschgy. Ms. Abdo testified in her own defence. [3] Very few facts are in dispute. Mr.

Litschgy was driving a GMC pickup truck that belonged to a friend of his on QueenStreet. He was heading in a southerly direction towards New Dundee. He had the right of way at the intersection with Bleams Road, astraffic travelling on Bleams Road, in either direction, is governed by stop signs. Traffic on Queen Street on May 2, 2013 had norestrictions, though this intersection is now a four-way stop. [4] Mr. Litschgy testified that as he was coming towards the intersection, at what he believed to be approximately the speedlimit of 80 kilometres per hour, he saw the vehicle, a Toyota Corolla, driven by Ms.

Abdo approach from Mr. Litschgy’s right, headingin an easterly direction towards Kitchener. He testified that the Toyota stopped at its stop sign but then almost immediately proceededinto the intersection. Mr. Litschgy slammed on his brakes in an attempt to avoid hitting Ms. Abdo’s vehicle. Unfortunately, this was notpossible and both vehicles ended up in the ditch. Ms. Abdo suffered severe injuries and has required several surgeries since that time. Mr. Litschgy’s injuries were relatively minor. [5] It was Mr. Litschgy’s evidence that Ms. Abdo was not speeding.

As well, he stated that she made a complete and full stop atthe stop sign at the intersection, before continuing into the intersection. Mr. Litschgy speculated that perhaps Ms.

Abdo thought that theintersection was a four-way stop. [6] Evidence from Officer Boniface, who downloaded data from both vehicles at the scene of the accident, showed that Mr.Litschgy was, in fact, driving at a speed closer to 100 kilometres per hour approximately 2.5 seconds prior to the collision, and that hebegan applying his brakes at approximately 1.5 seconds prior to impact. [7] Officer Metcalfe testified that the weather was clear, sunny and dry. He confirmed the existence and proper placement ofthe stop sign and a stop bar governing traffic in the direction that Ms. Abdo was travelling.

He also confirmed, as had Officer Boniface,that Queen Street and Bleams Road do not meet at perfect 90 degree angles at the location of the intersection. [8] At the close of the Crown’s case, Mr. Speyer, on behalf of his client, brought a motion for a directed verdict. For reasonsgiven orally by me during the trial, I denied this motion, ruling that the Crown had met the admittedly low burden of showing someevidence that, if accepted by me, could lead to a conviction in this matter. Subsequent to my ruling, Ms. Abdo testified. [9] Ms.

Abdo’s evidence was that, upon arriving at the intersection, she stopped, looked both ways, and waited for two cars,coming from her right, to pass her. Then, she glanced around and proceeded into the intersection where she was hit by the truck drivenby Mr. Litschgy. She estimates that she had been stopped at the intersection for approximately 30 seconds. She states that she simplydid not see the truck coming towards her. Has the Crown proven beyond a reasonable doubt that the defendant committed the offence of careless driving? [10] One of the leading cases concerning careless driving is that of R. v.

Beauchamp, (ON CA), [1953] O.R. 422,[1953] 4 D.L.R. 340 (C.A.). In paragraph 19 of this decision, Mackay J.A. states: “It must also be borne in mind that the test, where an accident has occurred, is not whether, if the accused had used greater care orskill, the accident would not have happened.

It is whether it is proved beyond reasonable doubt that this accused, in light of existingcircumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care andattention or to give other persons using the highway the consideration that a driver of ordinary care would have used or given in thecircumstances.

The use of the term ‘due care’, which means care owing in the circumstances, makes it quite clear that, while the legalstandard of care remains the same in the sense that it is what the average careful man would have done in like circumstances, the factualstandard is a constantly shifting one, depending on road, visibility, weather conditions, traffic conditions that exist or may reasonably beexpected, and any other conditions that ordinary prudent drivers would take into consideration.

It is a question of fact, depending onthe circumstances in each case.” [11] At paragraph 21 of the same decision, Mackay J. states further:

“There is a further important element that must be considered, namely, that the conduct must be of such a nature that it can beconsidered a breach of duty to the public and deserving of punishment. This further step must be taken even if it is found that theconduct of the accused falls below the standard set out in the preceding paragraphs.” [12] As well, I must consider the case of R. v. Wilson (1971), (ON CA), 1 C.C.C. (2d) 466, [1971] 1 O.R. 349(C.A.), another decision concerning careless driving.

In that case, Gale C.J.O. stated, at paragraph 3, that: “Mere inadvertent negligence, whether of the slightest type or not, will not necessarily sustain a conviction for careless driving.” One of the many subsequent cases that cite both Beauchamp and Wilson in an analysis of a careless driving charge is that of R. v. Ereddia (2006), 2006 ONCJ 303 , 37 M.V.R. (5th) 179 (Ont. C.J.). [13] Applying the analysis of these cases, I find that the Crown has not proven beyond a reasonable doubt that Ms. Abdo hascommitted the offence of careless driving.

There is no indication that her driving was in any way inappropriate for the conditions presentat the time. She had not been speeding and she stopped properly at the stop sign. I acknowledge that there is a difference in theevidence of Mr. Litschgy and Ms. Abdo as to how long she had been stopped at the intersection. Mr. Litschgy indicates that it had beenfor a very brief period of time, and he is able to provide an opinion as to her speed before she stopped at the intersection. This, I find,would have been difficult for him to do, had Ms. Abdo been stopped for 30 seconds, as she claimed she had been.

Notwithstanding,then, that on an analysis pursuant to the case of R. v. W.(D). (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.), I do not acceptMs. Abdo’s evidence with respect to how long she had been stopped, I do not conclude, on the evidence that I do accept, that the Crownhas proven its case with respect to careless driving. This tragic accident clearly occurred because Ms. Abdo drove out into theintersection at a time when it was impossible for Mr. Litschgy to stop safely. But that is all that Ms. Abdo did wrong.

And this one,brief mistake on her part, unaccompanied by any other indicia of carelessness whatsoever, is simply “mere, inadvertent negligence” asset out in Wilson, and is not sufficient to warrant a conviction for careless driving. [14] During the course of their submissions to the court, I asked both Mr. Andres and Mr. Speyer to comment on whether they feltI had the option of convicting Ms. Abdo of an offence – other than careless driving – pursuant to the provisions of

section 55 of theProvincial Offences Act, R.S.O. 1990, c. P.33. as amended, which reads as follows: “Where the offence charged includes another offence, the defendant may be convicted of an offence so included that is proved,although the whole offence charged is not proved.” [15] Mr. Andres is of the opinion that I do have the option of convicting Ms. Abdo of another offence such as failing to yield totraffic on a through highway, pursuant to section 136(1)(

b) of the Highway Traffic Act. Another offence that comes to mind would bethat of starting from a stopped position, pursuant to section 142(2) of the Highway Traffic Act. Mr. Speyer is of the opinion that I have nooption whatsoever. I cannot consider convicting Ms. Abdo of an alternate offence. Would an offence under s. 136(1)(

b) or s. 142(2) of the Highway Traffic Act be a lesser and included offence of the offence of carelessdriving? [16] First, let me state that I do not believe that Mr. Speyer is correct in asserting that there is an absolute ban on me possiblyconvicting Ms. Abdo of a lesser and included offence. Later in this decision, I will address how I believe that this could possibly occur. And such a conviction has clearly occurred, for example, in the case of R. v. Smith (2002), 30 M.V.R. (4th) 160 (Ont.

C.J.) in whichHalikowski J. upheld the decision of a justice of the peace who had found a defendant guilty of the offence of following too closely,pursuant to section 158(1) of the Highway Traffic Act, rather than the offence of careless driving, which was the offence that had beencharged. In another case, R. v. Grzelak, [2010] O.J. No. 6220 (Ont. C.J.), Gettlich J.P. convicted the defendant of the offence of failingto turn out to the left to avoid a collision, pursuant to section 148(5) of the Highway Traffic Act, rather than the offence of carelessdriving with which Mr. Grzelak had been charged.

However, the Grzelak decision, especially, contained no analysis of whether or notan offence pursuant to section 148(5) really is a lesser and included offence to that of careless driving. [17] There are two recent cases that thoroughly review and analyse the law with respect to lesser and included offences. Theseare R. v. Richards, [2009] O.J. No. 5776, a decision of Cuthbertson J.P. and Greater Sudbury (City) v. McNeil, [2012] O.J. No. 1315, adecision of Scully J.P. The McNeil decision, especially, gives a thorough and complete analysis of the concept of lesser and includedoffences.

It reviews decisions, such as R. v. G.R., 2005 SCC 45 , [2005] 2 S.C.R. 371 and R. v. Simpson (No. 2) (1981), (ON CA), 58 C.C.C. (2d) 122 (Ont. C.A.), in which the courts review the requirements of lesser and included offenceswithin the context of

section 662 of the Criminal Code, R.S.C. 1985, c. C-46, as amended, which is the comparable, though not identical,section in the Criminal Code to that of

section 55 of the Provincial Offences Act. A review of these cases makes it clear that an accusedmust be clear of the precise extent of his or her legal jeopardy.

As Martin J.A. stated in Simpson (No. 2) at page 133: “The offence charged as described either in the enactment creating the offence, or as charged in the count, must contain the essentialelements of the offence said to be included…The offence charged as described either in the enactment creating the offence or as chargedin the count, must be sufficient to inform the accused of the included offences which he must meet.” [18] Similarly, as Limerick J. stated in the case of R. v.

Foote (1974), (NB CA), 16 C.C.C. (2d) 44(N.B.S.C.A.D.), at paragraph 9: “An included offence is not merely a “lesser offence” as it is sometimes referred to but is an offence that the accused necessarilycommits in the commission of the offence charged.” [19] In Richards, Cuthbertson J.P. concludes that a charge of failing to stop for a red light pursuant to section 144(18) of theHighway Traffic Act is not a lesser and included offence of the offence of careless driving. [20] In McNeil, Scully J.P. concludes that neither a charge of changing a lane not in safety, pursuant to section 142(1) of the

Highway Traffic Act nor a charge of failing to drive in a marked lane, pursuant to section 154(1) (

a) of the Highway Traffic Act is a lesser and included offence of the offence of careless driving. As Scully J.P. states, in paragraph 18 of McNeil : “Careless driving as set out in

section 130 is a very broad and general charge. It can be committed in countless ways.” She goes on to say later in the same paragraph: “Must a person commit an offence of “change lane not in safety” during the course of committing an offence of “careless driving”?” Clearly the answer is no and therefore the charge does not meet the test for a lesser and included offence. The same must be said of “fail to drive in marked lane”.

I cannot find the defendant guilty of either of those two charges simply because the evidence may better support those charges rather than a charge of “careless driving.”” [ 21 ] For the same reasons, I conclude that I cannot convict Ms. Abdo of either the offence of starting from a stopped position not in safety or the offence of failing to yield to traffic on a through highway. Applying the requirements of G.R. and Simpson (No. 2) , Ms. Abdo had no way of knowing that she was facing the possibility of defending herself against either of these two alternate charges.

As Scully J.P. states, in paragraph 19 of McNeil , and referring to the offence of careless driving: “As this offence can be committed in numerous ways the defendant would not be aware of which other possible charges he may be facing. I would go so far as to say that unless particulars are provided which would spell out a manner of committing “careless driving” that includes all of the essential elements of another offence then there can be no lesser and included offences for “careless driving”. [ 22 ] This case proceeded by way of an information, pursuant to

Part III of the Provincial Offences Act which could have been particularized. In this case, it was not. There is, therefore, no recitation of particulars that could cover all the essential elements of another offence. While Ms. Abdo may well have committed the offence of starting from a stopped position not in safety or failing to yield to traffic on a through highway, and while I very likely would have convicted her of one of these offences had she been charged with it, she was not so charged.

And for the reasons I have outlined, I will not find her guilty of either of those offences or of the offence of careless driving with which she was charged. That charge is dismissed. Released: January 29, 2015 Signed: “Justice of the Peace Thomas Stinson”