R. v. Shreeves, 2011 ONCJ 789

Citation: R. v. Shreeves , 2011 ONCJ 789 IN THE MATTER OF the Highway Traffic Act, R.S.O. 1990, c. H.8 Between Her Majesty The Queen Prosecutor And Mr. Carl Shreeves Defendant Ontario Court of Justice Brampton, Ontario Manno, G. Justice of the Peace Reasons for Judgment Charge: s. 130 H.T.A. – “Careless Driving” Trial held: June 7 th , 2010, February 4 th , 2011 with submissions on May 27, 2011. Judgment rendered: December 9 th , 2011

J. Gillespie, Provincial Prosecutor A. Top, Counsel for the Defendant Cases Considered or Referred To: R. v. W. (D.), (SCC), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91 (QL) (S.C.C.) Regina v. Lifchus, (SCC), [1997] 3 S.C.R. 320 (S.C.C.) R v. Yorston [1991], 32 M.V.R. (2d) 285 (N.S. Co. Ct.) R v. Namink [1979], 27 Chitty’s L.J. 289 (Ont. Co. Ct.) R v. Willock [2004] O.J. 3482 R v. Reiber [1992] Stone, Prov. J. (Ont. Prov. Div.) R v Kolar, 2010, ONCJ 241 R v. Mackenzie, 1956 M.H. CCC 335, 1956 [O.W.N.] 35 (Ont. H. C.) R v McIver, (ON CA), [1965] 4 C.C.C. 182, O.C.A.

Statutes, Regulations and Rules Cited: Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 130 Provincial Offences Act of Ontario Reference Material Cited: Words and Phrases, cumulative supplement, June 2008, Volume 5, J-N, pg. Patrick Healy,“Credibility and the Presumption of Innocence.” (2007) 11 Can.Crim. L.R. 217. J. Swaigen, Regulatory Offencesin Canada: Liability & Defences. Carswell, 1992 Libman on Regulatory Offences in Canada, 2002 The Law of Traffic Offences, Hutchinsen, Rose, Downes , Carswell, 3rd ed., 2008 Issues: Establishing proof beyond a reasonable doubt.

Defendant loss of memory and whether or not it is an issue at Trial Background:

(1) On October 29, 2009, Mr. Carl Shreeves (the Defendant) and Ms. Giavedoni (Witness/Victim) were both travelling on Clark

Boulevard, just east of Highway 410 in the City of Brampton. At approximately 5:14 p.m. their vehicles collided and brought two strangers together to share one tragic event. The collision resulted in significant physical damage to their respective vehicles and both drivers suffered lasting physical, emotional and perhaps psychological damage following this unwelcome exchange. ( 2 ) Other nearby motorists/witnesses had the presence of mind to call emergency vehicles and the police who attended the scene thereafter.

Subsequent to the collision, and after assessing both the damage, position of the vehicles and from the interviews held with parties at the scene, the police charged Mr. Carl Shreeves with the offence of Careless Driving, a

part III offence under the Highway Traffic Act,

Section 130 . ( 3 ) The offence of careless driving is set out in s. 130 of the Highway Traffic Act , R.S.O. 1990, c. H.8 and specifically states: “130 .

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 than $200 and not more than $1,000 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.” Upon conviction Defendants receive six demerit points from the Ministry of Transportation.

This is considered one of the more serious charges under the HTA as well as one that is most litigated. Other consequences might include higher automobile insurance rates. In some instances, some face other punitive consequences which may include loss of employment. The expense of being in Court and not at work, as well as costs associated with one’s professional legal defence is also sometimes significant. ( 4 ) The Trial of this matter began on June 7, 2010, continued on February 4 th , 2011 with closing submissions made on May 27, 2011.

Written reasons were provided to the parties and filed with the Court on December 9 th , 2011. This timeline was with the consent of all parties. The Evidence – Prosecution’s Version of Events ( 5 ) Ms. Giavedoni, (the ‘victim’) was travelling eastbound in the left lane of a four lane highway, namely Clark Boulevard at around 5:14 p.m. on October 29, 2009. She described Clark Boulevard as having two eastbound lanes and two westbound lanes.

She estimated her speed to be no greater than 60 kph. ( 6 ) While the Victim was en-route with her friend ‘Vanessa’ (a passenger), she remembered seeing a driver travelling westbound on Clark Boulevard, coming towards her. She described the driver’s actions as follows: “...I had seen a driver swerving from lane to lane, left to right. He was going really fast and he sped around the corner....I’m like, oh my God, like look at this driver.

I’m like, he is going to hit somebody and then as he came closer it got more aggressive and then he basically did a U-turn into the front of my car.” (see page 4, June 7 th , 2010 transcript, line 10 and following) ( 7 ) Following the collision and perhaps as a result of the collision, the Victim reported that she ‘blacked out.’ Later, she estimated that the damage to her vehicle was so pronounced that it had to be ‘written off’.

( 8 ) Ms Giavedoni and other witnesses to follow, described the conditions on that day, time and place as being dry(roads). She indicated that there were no vehicles immediately in front of her at the time and said that there were no vehicles in front of the Defendant’s vehicle moving westbound. ( 9 ) On cross-examination, Ms. Giavedoni told the Court she had been on her way home from work that day. She had held that job for approximately one year.

She was asked again if she recalled if there was traffic in front of her and beside her travelling eastwards, she admitted that she did not remember if there was a vehicle beside her (June 15, 2010 transcript, pg. 15) ( 10 ) A second prosecutorial witness by the name of Brent Andrew Bechard testified that he was essentially travelling behind the victim’s vehicle, going 40 to 50 kph noting the brown Honda Civic motor vehicle (the Victim’s vehicle) in front of him.

He remembered seeing a red car that was moving in such a way that it looked as though it was going to crash into the Brown Honda in front of his vehicle. He reported the following: “....I realized was going to crash into the car in front of me.

As I was watching the car, it tried to swerve back over into their lane at which point there was impact between the two cars.” (February 4 th , 2011 transcript page 18, line 21 and following.) Mr Bechard was clear that he did not see what the red Honda (the Defendant’s vehicle) was doing before the crash but was sure that he ‘had his eye’ on the Brown Honda, the victim’s vehicle as he was directly behind her car travelling eastbound. ( 11 ) The third witness, Mr.

Scott Tykoliz corroborated the second witnesses version of the event by testifying to the following: “..I was travelling eastbound, as I mentioned, and there was another Honda Civic that was in front of me that was hit by a red later model Honda Civic that crossed the two yellow lines....the person driving the red car had tried to recover and their car had swerved and then the incident actually occurred....” February 4, 2011 transcript page 31, line 14 and following.) ( 12 ) Under cross-examination, Mr.

Tykoliz repeats that he saw the Defendant’s vehicle cross the double yellow lines and he saw the Defendant trying to correct his lane or his driving at the moment before the crash. ( 13 ) The fourth witness was the charging officer who arrived on the scene following the accident and he reported that after seeing the position of the vehicles but admitted under scrutiny that he had no training or special expertise as an accident specialist or re- constructionist. The Defendant Version of Events ( 14 ) The final witness (and the only witness on behalf of the Defence) was the Defendant himself, Mr. Carl Shreeves.

He testified that he had absolutely no recollection of that day, of the accident or his actions that particular day. He believed that his short term memory loss was due to a concussion he suffered from the collision. He was able to tell the Court that generally he believed he was a good driver and always checked before making lane changes. He had taken driving school training in the past. ( 15 ) As part of the Closing submissions, the Defendant put forward the following points for the Court to consider; (

a) The Defendant had no speeding tickets or infractions in the past 13 years; (

b) None of the prosecutorial witnesses could recall what the Defendant’s behaviour was prior to the accident; (

c) The Defence speculated that perhaps the Victim was listening to music and that combined with possible speeding and conversations with her passenger led to her being distracted;

(

d) The Victim said that she was approaching 60 kph in a speed zone that was 50 kph; (

e) There was no evidence of speeding by the Defendant; (

f) The Defendant compelled the Court to consider that the charge had not been established beyond a reasonable doubt. Analysis of the Evidence

(16) To assist the Court in reaching a verdict it considered R. v. W. (D.), (SCC), [1994] 3 S.C.R. 521,[1994] S.C.J. No. 91 (QL) (S.C.C.). As well to help define reasonable doubt the Court utilizes the principles set forth by thecase Regina v. Lifchus, (SCC), [1997] 3 S.C.R. 320 (S.C.C.)

(17) In R. v. D.W. the Court considered the following test: First: If you believe the evidence of the Accused/Defendant, you must acquit. Second: If you do NOT believe in the evidence of the Accused/Defendant, but you are left in reasonable doubt by it, you must acquit. Thirdly: Even if you are not left in doubt by the evidence of the Accused/Defendant, you must ask yourself, whether, on the basis ofthe evidence you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the Accused/Defendant.

(18) An expansion of the R. v. D.W. analysis was conveniently found in J.P. Quon’s decision in R. v. Kular, 2010 ONCJ241 where he quoted Professor Healy on Reasonable Doubt. “In Professor Healy’s dissertation (before he was appointed to the bench) at pp. 230-231, he explains that the principle which animatesR. v. W. (D.) is whether the evidence in a case discloses a reason for the trier of fact to have reasonable doubt on the whole of the case.He also reasoned that R. v.

W. (D.) is a particularized expression of the presumption of innocence and that it is concerned with theapplication of the standard of proof on the whole of the evidence at the end of the case. Furthermore, Professor Healy in utilizing thecriteria outlined in R. v.

W. (D.), expanded the number of scenarios for acquitting an accused when the credibility of witnesses and theaccused is at issue and suggested five possible situations in which the trier of fact could find reasonable doubt about the accused’s guilton the whole of the case: The principle in W. (D.) is concerned with one question for the trier of fact: Does the issue of credibility give you a reason to have areasonable doubt of A’s guilt on the whole of the case? There are five reasons to say Yes. 1. I am not persuaded beyond a reasonable doubt by the prosecution witnesses of A’s guilt. 2.

I believe the exculpatory testimony of the defence witnesses and thus the prosecution case is not proved beyond a reasonable doubt. 3. Even if I do not believe it, the exculpatory testimony leaves me with a reasonable doubt.

4. Even if I do not believe the exculpatory evidence, I do not know what or whom to believe on the essential elements of this case, andthus I have a reasonable doubt on the whole of the case. 5. Even if I do not believe the exculpatory testimony, when I consider all of the evidence in this case, I am not persuaded of A’s guiltbeyond a reasonable doubt. Paragraph 1 is subsumed in paragraphs 4 and 5, and between themselves paragraphs 4 and 5 are strictly redundant, but this is the full range of possibilities covered by the general principle in W. (D.)Any one of these five answers will compel an acquittal. 2010 ONCJ 241 ”

(19) We have considered the expanded analysis above as well as the original analysis found in R. v. D.W. The Defencereminded the Court that it is the Prosecution which bears the onus of proving this charge beyond a reasonable doubt and that burdennever shifts to the Defendant. The Defence also reminded the Court that if the Prosecution is to prove the charge of Careless Driving,they must establish that the Defendant was either driving without due care and attention; OR, without reasonable consideration for otherpersons using the highway. This analysis is attributable to the analysis found in R. vs.

Mackenzie, (ON SC), 1956, MHCCC 335, [1956] O.W.N. 35 (Ont. H.C.). Mr. Top, the Defendant’s able Counsel indicated that none of the witnesses could account forthe Defendant’s behaviour before the collision and that a collision does not necessarily equate to a finding of Careless Driving under theHTA. This would be true even in circumstances where the Defendant chooses not to mount a defence or to speak in Court – the burdenof making the charge out always remains with the Prosecutor.

(20) The Prosecution asked the Court to consider the principle outlined in R. v McIver. However, this Court also acceptsthe reasoning found in R. vs. Kolar [1994] O.J. no. 763, Ont. Provincial Court, where the Justice says “It is sometimes said in traffic Court that in the case of a motor vehicle collision, the prosecutor need only make out a prime facie case ofcareless driving to secure a conviction. McIver is often used in support of this proposition.

In our view, this is erroneous andmisleading.” On page 164 of the book, The Law of Traffic Offences, Hutchinson, Rose, Downes, Carswell, 3rd edition, 2009 the authors dealt withCareless Driving and concluded as follows: “If the prosecution is to prove this charge, it must still, even in the absence of defence evidence make out

an act of careless drivingbeyond a reasonable doubt.” The accident itself is often not enough to give rise to a conviction beyond a reasonable doubt. Take for instance the case of R. vsYorston (1991), 32 M.V.R. (2d) 285 (N.S. Co. Ct.) wherein an officer in the performance of his duties conducts a U turn, makes an errorin perception and causes a collision. The Court in that set of circumstances found that; “no fair minded person would say that this conduct was deserving of punishment in the nature of criminal type sanction. “(pg. 291) Again in 1979 in R. v. Namink (1979), 27 Chitty’s L.J. 289, (Ont. Co.

Ct.) Justice Killeen held that momentary inattention was notenough to support or justify a conviction. One needed to prove that the defendant was either driving without due care and attention, ORwithout reasonable consideration for others using the road or highway.

(21) As Swaigen pointed out, “ it may be argued that the very ambiguity that makes it difficult for the defendant to establish a lack of negligence is “precisely the same thing which creates difficulty for the prosecutor to prove negligence”, these concepts being amorphous. More particularly, it may be difficult for the defendant to know the standard of care it must establish, whereas the prosecutor’s difficulty consists in

determining the standard of care and adducing evidence of whether the defendant met the threshold.” (ibid) ( 22 ) Additionally, does the Defendant’s retrograde memory loss play a role in this case? The Court is of the mind that it is not necessary for the Defendant to provide a defence to the charge in order to prove or disprove the charge-that is a job of the Prosecution. The Courts have dealt with memory loss in many noted Cases- both pre Charter and post-Charter. In R v. Willock [2004] O.J.

No. 3472 , Justice Thomson reviewed some of the more noted case law on memory loss and whether or not the loss of memory would result in an unfair trial in the Criminal Court setting. Once again, the Courts recognized that although not ideal, there is no requirement that the Defendant take the stand in his defence. In any event, rather than embarking on a long dissertation of the role of memory loss, it is useful to note that such an argument would be with respect to the Defendant’s ability to make full answer and defence to the charge guaranteed by

Section 7 of the Charter. In simple terms, under such circumstances, is the trial deemed fair to the Defendant? Of course, the arguments and considerations normally would have to be properly framed by a Charter motion which is not before this Court. Neither party has raised this concern as an issue at trial. ( 23 ) There is one other case this Court wishes to cite which we believe applicable to the case at hand. In R. v. Reber, 1992, Stone, Prov. J. (Ont. Prov. Div.) the Justice said; “It was wrong for the trier of fact to speculate as to what might have innocently caused the accident.

Without an explanation from the Defendant, the Crown case gave rise to an inference of careless driving, for which an acquittal was unwarranted.” Reber stood for the proposition that a conviction ccould still be made out in the absence of direct evidence as long as the Prosecution showed that there was no other possible explanation for the accident other than Careless Driving. Conclusions and Decision of the Court ( 24 ) This is a tragic event where both the Defendant and the Witness/Victim have suffered physical injury as well as property damage. There can be no ‘winner’ in such a scenario.

The Court sympathizes with both parties. Having said this, the Court is also mindful that it must rule on a dispassionate basis and without favour according to the principles of law, its judicial duties, and with the Acts that define the By Laws we are here to fairly apply. Distilling the common law cited above, and in applying the principles found in the Highway Traffic Act itself, it is clear to this Court that; (

a) if the accident was the only evidence tendered in this trial, this Court could not find on behalf of the Prosecution beyond a reasonable doubt, even if a likely inference would have been Careless Driving; (

b) this Court cannot speculate or advance its own reasons for what happened on that fateful day, nor should it; (

c) the Defendant’s memory loss, though not ideal, does not constitute a concern to the fairness of the trial or the Defendant’ ability to make full answer and defence in this case; (

d) On the evidence the Court accepts, and in the absence of any other version of events, the Court asks itself, has the Prosecution proven their case beyond a reasonable doubt?

The evidence from the first three witnesses and the only evidence before this Court, indicated that prior to the collision, they collectively believed the Defendant’s vehicle swerved, crossed the double yellow lines and hit the Victim’s vehicle which was going in the opposite direction. This information gives the Court more evidence than the collision itself as the sole determinant. The first witness, (the Victim) also provided some evidence to suggest Mr. Shreeves was performing a U -Turn, and in her observation, driving unsafely on that date time and place.

The Court found that the witness appeared quite credible and stood resolute against cross-examination. Though the Defendant does not bear any responsibility for providing the Court with any evidence, it is also true that there was no evidence or other versions of events for the Court to consider save and except possible distraction on the part of the Victim which the Court discounted based on the evidence at hand. Nothing caused the Court pause to consider bad road conditions being a contributory factor, an animal or pedestrian that was potentially involved etc.

There was no direct or indirect evidence of any tire or mechanical failure, nor was there any evidence that the Victim’s vehicle was partially to blame by crossing into westbound traffic etc. Combining this information with the witnesses’ excellent demeanour and candor (collectively), this Court has no other recourse but to find the Defendant guilty of the charge of Careless Driving beyond any reasonable doubt considering the principles of R. v. W. D. and R. v. Lifchus . The Court will now hear submissions regarding sentencing. G. Manno Written Reasons released and filed with the Court December 9th, 2011