Calvin Layden Appellant And: City of Corner Brook Respondent, 2022 NLSC 107

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Layden v. Corner Brook (City) , 2022 NLSC 107 Date : June 28, 2022 Docket : 201904G0111 Between: Calvin Layden Appellant And: City of Corner Brook Respondent Before: Justice Peter N. Browne Reasons for Judgment On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 1319S00034 dated the 1st day of April, 2019. Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: June 07, 2022

Summary: The Appellant, Mr. Layden, was convicted under

section 150 of the Highway Traffic Act for leaving his vehicle unattended in a fire lane. He argued that the trial judge erred in her finding the vehicle was unattended because his 15-year-old son was occupying the passenger seat while he was inside the local Dominion store.

The appeal was dismissed as his son was not a licenced driver who was in physical control of his vehicle. Appearances: Calvin Layden Appearing on his own behalf Lorilee A. Sharpe Appearing on behalf of City of Corner Brook Authorities Cited: CASES CONSIDERED: HMTQ v. Williams, 2013 NLTD(G) 103; R. v. Harper (1982), (SCC), 65 C.C.C. (2d) 193, 133 D.L.R. (3d) 546 (S.C.C.); Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, 15 D.L.R. (4th) 193; andStarfire Diamond Rings Ltd. v. Angel, [1962] 2 Lloyds Rep. 217 106 Sol. Jo. 854 STATUTES CONSIDERED: Highway Traffic Act, R.S.N.L. 1990, c. H-3; Criminal Code, R.S.C. 1985, c. C-46; and

InterpretationAct, R.S.N.L. 1990, c. I-19 REASONS FOR JUDGMENT Browne, J.: INTRODUCTION [1] Mr. Layden was convicted of two offences under the Highway Traffic Act, R.S.N.L. 1990, and c. H-3 (the “Highway TrafficAct”) following a trial in Provincial Court on April 1, 2019. The offences were: a. parking in a fire lane contrary to

section 144(

c) of the Highway Traffic Act; and b. leaving a vehicle unattended without having removed the key contrary to

section 150 of the Highway Traffic Act. [2] Mr. Layden’s appeal is in relation to his conviction under

section 150. He bases it on the grounds the trial judge erred infinding his vehicle was left unattended while parked in a fire lane at the local Dominion store. [3] The evidence at trial disclosed Mr. Layden’s 15-year-old son was in the front passenger seat while he was in the store. In lightof this evidence, Mr. Layden argues that there was no violation of

section 150 as his vehicle was not left unattended. [4] For the reasons that follow, I find that the trial judge did not make a palpable and overriding error in making a finding of factthat Mr. Layden contravened

section 150 of the Highway Traffic Act. The appeal is dismissed. standard of review [5] Mr. Layden, in his factum, did not address the appropriate standard of review that I must apply in the present appeal. Whereasthe City of Corner Brook, in its factum, references the decision of Justice Handrigan in HMTQ v. Williams, 2013 NLTD(G) 103 whichsets forth the appropriate standard for appeals under the Highway Traffic Act at paragraphs 3 - 7. powers of appellate courts [6] The powers of a court on appeal against conviction for indictable offences are set out in section 686(1) of the Criminal Code,R.S.C. 1985, c.

C-46 (“the Code”). [7] The appeal court has four options: allow the appeal; dismiss the appeal; refuse to allow the appeal if the trial court came to awrong conclusion on a special verdict and pass an appropriate sentence; or set aside a conviction and find the appellant is not fit to standtrial or not criminally responsible. [8] Section 822 (1) of the Code says that the sections relating to indictable appeals ". . . apply, with such modifications as thecircumstances require . . . to

summary conviction appeals”.

[9] In R. v.

Harper (1982), (SCC), 65 C.C.C. (2d) 193, 133 D.L.R. (3d) 546 (S.C.C.) at paragraph 4, Estey, J. saidthat an appellate court inquiring into the reasonableness of a trial verdict should only intercede if ". . . the record, including the reasonsfor judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence . . .".Otherwise the appellate court has ". . . neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt orinnocence". [10] There are standards of review that apply generally to conviction appeals: a. for questions of law, “correctness”; b. for questions of fact, "palpable and overriding error"; and c. for questions of mixed fact and law and inferences of fact, generally "palpable and overriding error", but this may vary dependingon the inferences or the mixture of fact and law. [11] ”Correctness" is the standard that applies to questions of law.

It is a lower standard than "palpable and overriding error" andpermits appellate judges to substitute their own findings for those of the trial judge if the latter is mistaken about the law. [12] The search for "palpable and overriding error" in a trial judge's reasoning raises the bar considerably. Appeal courts invariablyshow great deference to trial judges on the findings of fact, including the inferences to be drawn from the facts they find. The reasons forthis deference are so obvious they need not be stated. ISSUE [13] Did the trial judge err in finding Mr.

Layden’s motor vehicle was left standing unattended in a fire lane? the LAW The Highway Traffic Act [14]

Section 150 of the Highway Traffic Act reads as follow: Unattended vehicle 150. The driver of a motor vehicle shall not permit it to stand unattended on a highway without first having (

a) stopped the engine; (

b) locked the ignition; (

c) removed the key; (

d) effectively braked the vehicle; and (

e) when standing on a grade, having turned the front wheels to the curb or edge of the roadway.

Definitions under the Highway Traffic Act [15]

Section 2 of Highway Traffic defines driver and driving licence as follows: (s) "driver" means a person who drives or is in actual physical control of a vehicle; (t) "driver's licence" means a licence which has been issued under this Act, including a licence issued to a novice driver, authorizing theperson to whom it is issued to drive a motor vehicle and which has not expired or been suspended or cancelled; Rules of Statutory Construction [16]

Section 16 of the

Interpretation Act, R.S.N.L. 1990, c. I-19 states as follows: Rule of construction 16. Every Act and every regulation and every provision of

an Act or regulation shall be considered remedial and shall receive the liberalconstruction and

interpretation that best ensures the attainment of the objects of the Act, regulation, or provision according to its truemeaning.

Driedger’s Modern Principle of Statutory Construction [17] In relation to Driedger’s Modern Principle of Statutory Construction, Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, 15 D.L.R. (4th) 193 stated the following at paragraph 21: 21 Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997); RuthSullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. BACKGROUND [18] I am satisfied the relevant background to this matter was best summarized by the trial judge at page 23, lines 14 – 22, of thetrial transcript: I’ve heard the evidence of Officer White. I’ve heard the evidence of Calvin Layden. I accept the evidence of Constable White and I’mconvicting Mr. Layden of both charges. I’m satisfied that he was parked in the fire lane at Dominion.

I’m satisfied that the sign was thereand it was clearly testified to by Officer White. I’m satisfied that the vehicle was left unattended, and that the child who was in the frontseat was not qualified to move the vehicle. So the two charges against you, sir, have been made out and I’ll ask Mr. Tibbo what the fineis. ANALYSIS [19] While the trial judge’s reasons were not detailed or comprehensive, they were, nonetheless, succinct and supported by theevidence.

A review of the transcript establishes the trial judge considered and weighed the totality of the evidence presented by Mr.Layden and the issuing officer, Constable White. [20] Constable White testified that he was conducting his regular patrol when he observed a vehicle in the fire lane. He noted therewas a young male sitting in the passenger seat so he went to the driver’s window and inquired where the driver was located. The youngmale, who was later identified by Mr.

Layden in his evidence to be his 15-year-old son Cole, stated that he was “in the Dominion”. [21] Constable White’s evidence also confirmed the vehicle was idling and that he did not notice anyone else in the vehicle otherthan the young male. He took photos of the vehicle’s licence plate and the sign that indicated it was a fire lane and there was no parkingpermitted. These were entered as exhibits. [22] Mr. Layden testified that there was a licenced driver in the vehicle at the time who had a valid driver’s licence and was insuredwhose name was Jessica Lee. Mr. Layden did not call Ms.

Lee as a witness nor did he produce any documentation that she was a licenceddriver. This was in contradistinction to Constable White’s evidence that the only occupant in the vehicle was a young male sitting in thefront passenger’s seat. [23] As noted above, the words of

an Act are to be read in their entire context and in their grammatical and ordinary senseharmoniously with the scheme of and the object of the legislation. Under the Highway Traffic Act, a driver is a person who drives or is inactual physical control of a vehicle and a driver’s licence is a licence issued to a person authorizing them to drive a vehicle. Meaning of the phrase “to stand unattended” [24] During his oral submissions, Mr. Layden displayed a genuinely honest concern over the lack of clarity surrounding themeaning of this phrase.

From his perspective, he had discharged any onus placed upon him by establishing that the vehicle was attended. [25] He asserted the trial evidence established that his 15-year-old-son was occupying the vehicle while he was in the Dominionand this constituted “guarding or attending to the vehicle” in his absence. He went on to explain that he conducted extensive research andwas unable to find any other meaning ascribed to the phrase. [26] I admire Mr. Layden’s perseverance especially in light of the fact that he is representing himself.

Sometimes finding guidancefrom legal jurisprudence can be elusive because some words or phrases are incapable of precise definition. [27] This was the sentiment conveyed by the prominent English jurist, Lord Denning, in his decision in Starfire Diamond Rings Ltd.v. Angel, [1962] 2 Lloyds Rep. 217 106 Sol. Jo. 854 at paragraph 219: I do not think that the words "left unattended" are capable of any precise definition. It is a mistake for a lawyer to attempt a definition ofordinary words and to substitute other words for them. The best way is to take the words in their ordinary sense and apply them to thefacts.

In this case, the meaning of "left unattended" is, I think, best found by considering the converse. If a car is "attended", what doesit mean? I think that it means that there must be someone able to keep it under observation, that is, in a position to observe any attemptby anyone to interfere with it, and who is so placed as to have a reasonable prospect of preventing any unauthorized interference with it. Imust say that it seems to me that this car was "left unattended". [28] My

interpretation of the above passage is that Lord Denning was trying to create a theoretical test to ascertain the driver’sphysical proximity to the vehicle.

[ 29 ] When I apply Deriders Modern Principle of Statutory Construction in conjunction with Lord Denning’s test in Starfire Diamond to the factual circumstances of this appeal, I find that Mr. Layden’s vehicle was left unattended for the following reasons: a. There was no evidence that as the driver Mr. Layden, while inside the Dominion, was able to keep his vehicle under observation and that he was in a position to move the vehicle from the fire lane should it be required; b. His 15-year-old son was occupying the front passenger seat but did not have a driver’s licence and was uninsured.

Accordingly, he was not a reasonable prospect for being able to move the vehicle should it be required; c. There was evidence the ignition fob was left inside the vehicle and Constable White observed it idling while Mr. Layden was inside the Dominion; and d. Mr. Layden’s legal responsibilities under

section 150 could not be delegated to his son. [ 30 ] I find the Legislature’s purpose in enacting

section 150 was to address potential safety issues that could arise when a driver leaves their vehicle unattended. To accept Mr. Layden’s argument that his vehicle was attended to by his 15-year-old son while he was in the Dominion would be inconsistent with the plain and ordinary meaning of the language of this

section and the scheme, object and intention of the Highway Traffic Act itself. Application of the standard of review [ 31 ] As noted by the court in the Williams decision, when an appellate court is assessing whether the trial verdict is reasonable it should only intercede if the trial record, including the reasons for judgment, demonstrate a complete disregard or lack of appreciation of the relevant evidence before them. [ 32 ] In the present case, I find Mr. Layden’s appeal is based on a question of fact where the standard of review is “palpable and overriding error”.

In such reviews, appellate courts show great deference to the trial judge’s findings of fact. [ 33 ] Here, the trial record and the accompanying reasons meet the standard of reasonableness required. They demonstrate the trial judge assessed the credibility of each of the witnesses and weighed the evidence appropriately before reaching the verdict that Mr. Layden was guilty of a breach of

section 150 of the Highway Traffic Act . [ 34 ] Accordingly, I will not interfere with the trial judge’s decision and I dismiss the appeal.

SUMMARY AND DISPOSITION [ 35 ] Mr. Layden appealed his conviction under

section 150 of the Highway Traffic Act stating the trial judge erred in finding his vehicle was left unattended in a fire lane. [ 36 ] The Court dismissed his appeal finding that there was a sufficiency of evidence before the trial judge to reasonably find Mr. Layden guilty of the offence. ORDER [ 37 ] In the result, the appeal is dismissed. _____________________________ Peter N. Browne Justice