R. v. Tansley, 2011 ONCJ 60

Citation: R. v. Tansley, 2011 ONCJ 60 In the matter of Her Majesty the Queen in Right of Ontario and Nicholas Tansley Before Justice of the Peace Donald Dudar on September 9, 2010 and December 13, 2010 Decision and Reasons Issued January 12 , 2011 R. Cotter........................................................................................................... for the prosecution S. Parker................................................................................................................... for the defence Statutes and Regulations Cited Provincial Offences Act, R.S.O. 1990,

CHAPTER P.33 (“POA”) Highway Traffic Act, R.S.O. 1990, c. H.8, as amended (“HTA”) Cases Cited R. v. Sault Ste. Marie (SCC), [1978] S.C.J. No. 59 R. v. Beauchamp, (ON CA), [1952] O.J. No. 495 Blaz v. Dickinson [1996] O.J. No. 3397 Witnesses John Stapleford, police officer with Halton Regional Police Service Hugh MacKenzie, civilian witness Lisa Wong, civilian witness Laura Corder, civilian witness Kristofer Noonan, civilian witness Nicholas Tansley, defendant Background 1.

Nicholas Tansley is charged that on or about the 15th day of August 2009, at the Town of Oakville, he did commit theoffence of did unlawfully drive a motor vehicle on the Queen Elizabeth Way Highway carelessly, contrary to HTA,

section 130.

Section 130 of the HTA provides: Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attentionor without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and

not more than $2,000 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. 2009, c. 5, s. 41 . Decision 3 . For the reasons set out in the following paragraphs, the Court finds that the prosecution has established a prima facie case against the defendant, and that the defendant has failed to establish a ground upon which to conclude that he acted with appropriate care and attention for other users of the road. Accordingly, conviction enters. The Court will hear submissions on penalty.

The Evidence 4 . The evidence discloses that the defendant is a police officer employed by the Halton Regional Police Service. There was no contest as to the date, time and location (jurisdiction) of the events in question. 5 . On that date and at that time, the defendant was transporting a prisoner from a location in Burlington, Ontario to Oakville , Ontario. 6 . By all accounts, traffic was “moderate to heavy”, moving at a good pace, probably at or near the speed limit. 7 . The vehicle occupied by Cst. Tansley, Cst.

Stapleford and the prisoner entered the highway within the city limits of Burlington, and proceeded eastbound, until it arrived at the interchange for Burloak Drive. The

section of highway was and had been for some time under construction, and traffic interruptions were a normal event. 8 . A vehicle operated by Mr. MacKenzie had been positioned in front of the police cruiser, and, giving deference to the presence of a police cruiser on the highway, Mr. MacKenzie pulled his vehicle to the lane to his right to allow the cruiser to travel through. Cst. Tansley obliged, but, almost immediately upon doing so, realized that the vehicle that had been in front of Mr. MacKenzie’s vehicle had come to an unexplained and un-anticipated stop. 9 . Mr.

MacKenzie gave direct evidence of speed, indicating he was travelling at 100 at 110 kilometres per hour, and the defendant’s vehicle, which he recognized as a police vehicle, approached from the rear and overtook him. He conceded to his paranoia inspiring him to look at his speedometer when he recognized the approach of the cruiser. He estimated the speed of the police cruiser to be approximately twenty kilomtres per hour faster than his. 10 . Cst. Tansley was unable to stop in time, nor was he able to move to the left to avoid a collision.

However, he had hoped that he might be able to avoid a collision by moving to his right, and in fact manoeuvred his vehicle so that, eventually, his front, driver’s side collided with the rear, passenger side of the victim’s motor vehicle. The police car swung around and eventually came to rest perpendicular to the direction of travel, facing the left-most lane. 11 . By then, Mr. MacKenzie’s car had actually returned to the left-most lane, and, following into the position now vacated by Mr.

MacKenzie, he also struck the victim’s vehicle, which by the force of the impact was catapulted into the air, flipped, and eventually came to rest on the opposite side of the highway. It appears that the second collision may have caused the vehicle to flip, however, there is no evidence to support a conclusion was to which vehicle – the police cruiser or the one operated by Mr. MacKenzie – was responsible. 12 . Various witnesses explained that the trip on the road that day was generally uneventful, but that sudden, explained stops were common.

Indeed, there was ongoing construction in the area and lane shifting in the area ahead, so that slowdowns and stops could reasonably be expected. 13 . Cst. Tansley gave evidence that his trip was certainly otherwise uneventful, and that he took all reasonable steps in operating the motor vehicle that day. He indicates there were no unusual distractions, no involvement with the police radio, nor any notable discussions. He was in full control of the motor vehicle. This evidence was supported by that of Cst. Stapleford. Crown Submissions 14 .

The Crown asserts that it has met the burden of proof, and that conviction should be registered. 15 . In the Crown view, it has established a prima facie case that, absent a compelling explanation or evidence of due diligence, warrants a conviction. Users of the road were travelling apace, mindful that the road had been and continued to be under construction, and, further, that disruptions to travel as a result of either construction activities and/or lane re-direction were normal. There were no sudden, unexpected external interferences with the normal flow of traffic. 16 . Cst.

Tansley was travelling at or near the speed limit. Only the vehicles operated by Cst. Tansley and Mr. MacKenzie were unable to stop without incident, and indeed both were eventually involved in what appears to have been a serious accident. There was no reason offered for the inability to stop. 17 . To the extent that the defendant’s explanation amounts to due diligence, it fails, in the Crown view. Cst.

Tansley’s own admission is that he was travelling at or near the speed limit on a busy highway, and, in fact, was within one and one half to two car lengths from the vehicle in front when he first observed the brakes lights coming on. There is no evidence as to how great a distance he maintained before realizing the brakes lights had come on.

Defence Submissions 18 . The defence position is that the prosecution has failed to establish a prima facie case. There is no evidence of erratic or otherwise improper driving behaviour leading up to the accident. In fact, in the defence view, all the evidence supports a conclusion that Cst. Tansley was operating his vehicle in quite a reasonable and controlled fashion. 19 . Further, in the defence view, to the extent that speed is being alleged as a factor, the Court should find that this is not relevant, for two reasons. First, as a peace officer, Cst. Tansley is protected by operation of s128(13) of the HTA , which reads: “The speed limits prescribed under this

section or any regulation or by-law passed under this

section do not apply to,…(

b) a police department vehicle being used in the lawful performance of a police officer’s duties. 20 . Second, speed by itself is not evidence of careless operation of a motor vehicle. 21 . Finally, the evidence of Cst. Tansley should be dispositive, in that it reveals diligent and safe operation of the motor vehicle. He confirms he was neither distracted nor doing anything other than paying attention to the road, other traffic, and general conditions. Analysis and Conclusions 22 .

The parties to this proceeding have conducted themselves quite rightly on the basis that the charge of careless driving is one of strict liability, pursuant to the principles set out in R. v. Sault Ste. Marie . This means that this falls into the category of: Offences in which there is no necessity for the prosecution to prove the existence of mens rea ; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances.

The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case. 23 . We are expected to operate out vehicles in order to anticipate normal patterns and flows of traffic, and to be able to anticipate reasonable deviations therefrom. 24 . In this case, Cst. Tansley was operating at or faster than the speed of other vehicles on the roadway.

My conclusion is that he was travelling between 100 and 110 kilometres per hour, and was passing most other vehicles on the road. There was no need for him to travel at a speed above the posted speed limit. As a police officer operating a police vehicle, he enjoyed the benefit of normal civilian behaviour: other users of the road were chastened in the presence of the police vehicle he was operating and granting him right of way. 25 .

This turned to his detriment in this case, since, as he entered into the void created by a vehicle moving from in front of him, he continued to advance faster than the other vehicles until he, apparently, suddenly realized that the next vehicle had either come to a stop or was about to do so. He was, at that point in time, unable to stop his own vehicle safely. 26 . His explanation that he has exercising due care and attention falls flat against the facts, specifically he proved unable to stop safely. It lacks any detail which would allow the Court to afford his claim any credence. 27 .

The explanation that was offered, that the defendant was operating his motor vehicle carefully and attentively, fails to accord with even his own claims in regard to speed and distance from the vehicle ahead. 28 . In the event that the Court should attach greater weight to his evidence, the question remains as to whether his driving behaviour meets the standard of care required: that is driving with due care and attention and/or with reasonable consideration for other persons using the highway. 29 .

Mindful that many drivers may keep a distance of only one and a half to two car lengths, even at speeds such as those in this case, they do so at their peril, in the Court’s view. 30 . Cst. Tansley does not describe whether he was monitoring the distance between his vehicle and that in front of him or adjusting his speed based on any increase or decrease of such distances. 31 . He does not indicate whether he was attempting to monitor the pace of vehicles positioned one, two or possibly three positions ahead of the vehicle ahead of his, and their brake lights, in order to gauge traffic flow. 32 .

He does not indicate whether he was monitoring flow and brake lights on the lane or lanes to his right, to assist in assessing any impending stops. 33 . He does not indicate whether he was taking steps to allow him to be confident that he could stop, at the speed he was travelling. 34 . He does not indicate what steps he took, if any, to accommodate to the known construction under way on the upcoming part of the highway. 35 .

Although the fact of an accident or the gravity of that accident may in and of itself not be sufficient to prove careless operation of a motor vehicle, it is, in my mind, the basis of a prima facie case, and calls out for some explanation. 36 . Finally, with respect to the defence argument that speed ought not be factored into the allegations, as the defendant, operating a

motor vehicle while on duty is exempt from the speeding provisions of the HTA, no cases were submitted to the Court in support of thisproposition. 37. It seems trite to say that a police officer cannot act in whatever way he or she chooses when on duty. For example, an officercould not rely on the exemption to justify speeding while returning to his detachment at the end of a shift and for no other compellingreason. 38. The Court finds support for that conclusion, in Blaz v. Dickinson. That decision is one of the few readily available in referenceto s.128(13).

Clearly, that case is in the context of civil litigation arising out of a motor vehicle accident involving a police officer onduty, and is therefore not clearly on point. 39. That said, the principle enunciated in that case is helpful. 40. The relevant paragraphs are as follows: 40 There is a balancing required between the duty to apprehend a fleeing suspect and the duty to ensure public safety in doing so. Theduty of care owed by the pursuing officer extends to the fleeing suspect.

It is the same duty as that owed to other persons, specifically, toexercise such care and skill as is reasonable in all the circumstances: Marshall v. Osmond, [1983] 2 All E.R. 225 (C.A.) at 227. Standard of Care 41 It is in the public interest to apprehend an escaping criminal. The question is the extent to which innocent citizens are required tobear injury or loss so as to achieve that objective: see Priestman v.

Colangelo et al., (SCC), [1959] S.C.R. 615 at 635 perCartwright J. dissenting, 19 D.L.R. (2d) 1. 42 Each case must be viewed on its own particular circumstances to determine whether or not there is negligence: see Vallery v. Po(1971), (BC SC), 23 D.L.R. (3d) 92 (B.C.S.C.) and Pepper v. Hoover (1976), (AB KB), 71 D.L.R.(3d) 129 (Alta. T.D.). 43 Officers must exercise judgment in balancing the competing interests of arresting wrongdoers and protecting citizens. Officers arenot required or authorized to do anything in a negligent manner. 41.

Finally, the Court notes that the exemption set out in s.128(13) applies to “a police department vehicle being used in the lawfulperformance of a police officer’s duties.” The issue of how this applies to the police officer operating that motor vehicle was notcanvassed by either the prosecution or defence. 42. There is nothing in the evidence to suggest that there was any necessity of driving at the speed described. There were noexigent circumstances, nothing of a compelling nature. The emergency equipment on the cruiser was not activated. 43.

In all the circumstances, the Court finds that the element of speed could be and is properly considered to be a factor in thisproceeding. Issued City of Burlington 12 January, 2011 HW Donald Dudar