R. v. Hutchinson, 2016 ONCJ 20

CITATION : R. v. Hutchinson , 2016 ONCJ 20 Case Name: R. v. Hutchinson Between Regina, and David Hutchinson Ontario Court of Justice Toronto, Ontario P. Kowarsky J.P. Heard: January 6, 2016 Judgment: January 12, 2016 Charge: Operate Unsafe Vehicle contrary to

section 84 of the Highway Traffic Act Legal Representatives: Mr. S. Davidson: Provincial Prosecutor. Mr. J. Potter: Paralegal for the defendant. REASONS FOR JUDGMENT P. KOWARSKY J.P.:-- A. THE CHARGE 1. The defendant is charged with Operate Unsafe Vehicle contrary to

section 84 of the Highway Traffic Act, which provides as follows:

(1) No person shall drive or operate or permit the driving or operation upon a highway of a vehicle, a street car or vehicles that in combination are in a dangerous or unsafe condition.

B. THE EVIDENCE FOR THE PROSECUTION 2 The evidence of Officer O. Marquez may be summarised as follows:

a) He is a Police Officer employed as such by the Toronto Police, and was so employed on the 5th May 2015.

b) On that date, at approximately 7:38 am, he received a radio call requesting that he attend the intersection of Eglinton Avenue East and Bruce Park Avenue, Toronto, where a female pedestrian had been injured when a wheel from a motor vehicle became dislodged, and struck her.

c) Upon his arrival at the scene very shortly thereafter, he was informed that the victim had already been taken by ambulance to the hospital.

d) He saw a silver Nissan motor vehicle, Ontario Registration Number BMLN 975, on the south-west corner of the intersection, facing westbound. The front driver’s side wheel was missing, and there was damage to the driver’s side of the vehicle.

e) On request, the defendant identified himself to the officer as the driver of the vehicle, and provided him with an Ontario Driver’s Licence in his name, David Hutchinson. The digitized photograph on the licence resembled the likeness of the defendant, and the officer was satisfied with his identification.

f) The defendant also provided the officer with proof of insurance in respect of the vehicle, and with a Certificate of Registration indicating that the vehicle was registered in the name of Tracy Williams, the defendant’s wife.

g) The officer asked Mr. Hutchinson to provide him with a written statement as to what had occurred, and the defendant complied.

h) After a Voir Dire, I ruled that the statement given by the defendant to the officer was given voluntarily. The statement was written, read and signed by the defendant at the scene of the collision. I ordered that the statement be read verbatim by the officer, and that it would then constitute evidence in the trial proper.

i) The statement reads as follows: “Had snow tires changed to summer tires last week. Noticed a banging noise. Phoned dealership to bring it back in. And on the way in the tire fell off.”

j) The officer testified that after leaving the scene of the collision, he went to the hospital and spoke with the victim, who indicated that she had minor scrapes and bruises, and that her memory was “foggy.”

k) On a subsequent occasion the officer went to see the victim, who advised that the injuries were minor. C. THE LAW 3. I am satisfied that the offence before the court is a strict liability offence. See R. v. Robbins (1996), 26 MVR (2d) 184 (Ont.P.D.) and R. v. Crowe, [2012] O.J. No. 3091(O.C.J.)

4. In Sault Ste. Marie (City) (SCC), [1978] 2 S.C.R. 1299 Dickson J.A. explained the requirements in relation to the prosecution of strict liability offences as follows: “While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendantmust only establish on the balance of probabilities that he has a defence of reasonable care.” 5. With effect from the judgment of the Supreme Court of Canada in Sault Ste.

Marie (City) (supra) jurisprudence abounds that theCrown must prove the essential elements of the offence beyond a reasonable doubt, and that if the court is satisfied that the prosecutionhas met that onus, in order to escape liability, the defendant must satisfy the court, on a balance of probabilities, that he acted with duediligence or acted reasonably on a mistaken belief of facts, which if true, would render the act lawful. 6. Referring to R. v. Sault Ste. Marie (supra), Carthy J.A., writing for the Ontario Court of Appeal in R. v. Celanese Canada Inc. [2001]O.J.

No. 3420, made the following statement at paragraph 12: “That seminal judgment fixed the demarcation between the Crown's obligation to prove the actus reusbeyond a reasonable doubt, and the regulated party's onus of establishing due diligence on a balance of probabilities.” 7. Consequently, I am satisfied that the determination of guilt in strict liability cases is a two-step process, namely: Step one: The prosecution must prove the actus reus of the offence beyond a reasonable doubt.

Step two: If the prosecutor does succeed in proving the actus reus beyond a reasonable doubt, then the onus shifts to thedefendant to endeavour to establish due diligence on a balance of probabilities. D. ANALYSIS 8. In order to prove the actus reus beyond a reasonable doubt, the prosecution must prove that the defendant was the driver of the motorvehicle at the time that the wheel fell off and injured a pedestrian, and that that constituted driving an unsafe vehicle as contemplated insection 84 of the Highway Traffic Act. 9.

Parenthetically, it is common cause that the defendant was not driving a commercial vehicle at the time of the incident. 10. The defendant admitted that he was driving the vehicle when the wheel suddenly fell off. Res ipsa loquitur, the matter speaks foritself. In and of itself, that is compelling evidence that the defendant was driving an unsafe vehicle. I am satisfied therefore, that theprosecution has proven the actus reus of the offence beyond a reasonable doubt. 11.

The onus now shifts to the defendant to satisfy the court, on a balance of probabilities, that he exercised due diligence, and that heshould not be convicted of the offence. In order to make such a determination, I must consider the evidence of the defendant. E. THE EVIDENCE OF THE DEFENDANT 12. In his viva voce evidence the defendant elaborated on the written statement which he had given to the officer. His evidence isencapsulated as follows:

a) His wife, Tracy Williams, is the registered owner of the vehicle concerned, and he is a “part-time” driver.

b) On April 30th 2015, Ms. Williams took the vehicle in to the dealership, Avenue Nissan for a tune-up and tire-change fromwinter to summer tires. The work order which she received on picking up the vehicle stated that the wheels had been balanced.

c) They always take the vehicle for regular maintenance and repairs to Avenue Nissan.

d) On Sunday, May 3rd 2015 he was driving the vehicle for the first time since the work was done on Thursday, April 30th. Hiswife and a friend were passengers in the car.

e) While driving on Highway 401 East towards the Pickering Town Centre, he heard a noise apparently coming from theengine. He parked the vehicle at the Town Centre. His wife had him drive back and forth in the parking lot; there did not appear to beany problem. They both looked at the wheels, and they all seemed to be fine with nuts attached.

f) The following day, Monday May 4th, his wife called Avenue Nissan, and made an appointment to bring the car in on the following day, Tuesday May 5th. No-one drove the vehicle on Monday May 4th.

g) While driving to Avenue Nissan on Tuesday May 5th, without any warning, the wheel became dislodged and fell off, injuringa pedestrian.

h) After the incident he called for a tow truck to tow the car to another vehicle repair facility to check and repair the vehicle.He and the tow truck driver found 2 or 3 nuts with which the driver reattached the wheel. All three other wheels had 5 nuts on each,and appeared to be secure.

i) The noise that he had heard emanating from the engine on Sunday May 3rd appeared to be minor, and did not suggest thatthe car should not be driven and should be towed.

j) He and his wife have instituted an action against Avenue Nissan for compensation. F. FINDINGS 13. With respect to the issue of whether the evidence of the defendant meets the due diligence threshold, the Supreme Court of Canadaheld in Levis (City) v. Tetrault 2006 SCC 12: “An objective standard is applied under which the conduct of the accused is assessed against that of a reasonableperson in similar circumstances.” 14. The Nova Scotia Court of Appeal held that the court must be satisfied that “all reasonable care was taken.” See R. v. Sutherland, (NS CA), 55 C.C.C. (3d) 265. 15.

In the seminal work on “Regulatory Offences in Canada,” at page 7.1(a), Libman J., citing the decision of the Nova Scotia Court ofAppeal in R. v. MacLellan (NS CA), 60 N.S.R. (2d) 426 writes as follows: “Since the burden of proof rests upon the accused, he or she must establish on a balance of probabilities by credibleevidence the defence of mistake of fact or the absence of negligence. Whether the defence met the burden is a matter for the trialjudge.” 16. I find that the evidence of the defendant was given honestly, succinctly and clearly.

Without delving into the details of his evidenceagain, I am satisfied that he and his wife indeed took all reasonable steps to avoid the commission of the offence. Frankly, in thesecircumstances, I cannot imagine any more diligence than was exhibited by the defendant and his wife. G. DISPOSITION 17. For these reasons, I am satisfied that on a balance of probabilities the defendant has met his onus of proving that he acted with duediligence at all material times. Consequently, there will be a finding of ‘Not Guilty’. P. Kowarsky J.P.