R. v. Hayward, 2018 ONCJ 105

ONTARIO COURT OF JUSTICE CITATION: R. v. Hayward , 2018 ONCJ 105 DATE: 2018·02·16 POA APPEAL No.: 4960-15-25450000 BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — DAVID HAYWARD Appellant PROVINCIAL OFFENCE APPEALS

PART III APPEAL Before Justice J.F. Kenkel Heard February 2, 2018 Released February 16, 2018 Mr. Thompson Hamilton ............................................................. counsel for the Respondent Ms. Colleen McKeown ...................................................................... counsel for the Appellant KENKEL J.: Introduction [ 1 ] Mr. Hayward was leaving work, turning left from the company entrance to go northbound. There was a southbound tractor trailer to his left in the curb lane turning into the same entrance he was leaving.

As the appellant turned into the passing lane his driver’s door was hit by a motorcycle. Tragically, the driver of the motorcycle was killed. Mr. Hayward was convicted at trial of failing to yield to oncoming traffic contrary to s.139 of the Highway Traffic Act RSO1990 c H8. [ 2 ] Mr. Hayward testified that as he was about to turn left the southbound tractor trailer commenced a right turn into the same driveway. That tractor trailer was in the curb lane closest to him. Mr. Hayward testified that he could see over the flat bed tractor trailer and the southbound curb lane had no oncoming vehicles.

He could see the curb lane was clear for 400 feet away from his position in the driveway. (January 18, 2017 p.84) However, as Mr. Hayward turned into the second southbound passing lane suddenly, “there was a motorcycle right there.” (January 18, 2017 at p.86) In cross-examination he explained that as he entered second lane, he could “still see 200 feet … up the lane … and there’s nobody there.” (January 18, 2017 p.92) He looked south to check northbound traffic. He then looked back and saw a motorcycle 20 feet away.

The time from when he first saw the motorcycle to the time it crashed into his driver’s door was less than a second. (January 18, 2017 pp.86-87) The impact was so fast that he had no time to react or even think about how to react. (January 18, 2017 p.87) He had “no idea” where the motorcycle came from. (p.88) [ 3 ] After carefully considering all of the evidence heard, the Justice of the Peace found that the prosecution proved beyond a reasonable doubt that the appellant entered the highway and failed to yield the right of way in circumstances that caused an immediate hazard. Mr.

Hayward’s evidence that he was diligent and took all reasonable steps to ensure the lane was safe to enter was found not to be credible given the circumstances of the collision and the evidence at trial. The appellant alleges that numerous errors led to what they submit was an unreasonable verdict. [ 4 ] The submissions of the Appellant grouped the alleged errors into three headings:

I. Misapprehension of the evidence – multiple errors alleged in the assessment of the accused’s evidence. II. Failure to determine whether the Crown had proved the actus reus of the offence before considering whether the defence of duediligence applied. III. Failure to apply the WD reasonable doubt standard to the proof of the actus reus.

Part III POA Appeals – The Standard of Review [5] The scope of review on a

Part III appeal under the Provincial Offences Act RSO 1990 c P33 is set out in s.120(1)(a) – (b)(iii). The wording of that

section is identical to the appellate provisions in s.686(1)(a) – (b)(iii) of the Criminal Code. Cases consideringthe scope of appellate review in relation to s.686 are therefore of assistance in this context. [6]

Section 120 provides that a provincial offence appeal court may allow an appeal where: (1)(a)(i) – the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (1)(a)(ii) – the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (1)(a)(iii) – on any ground, there was a miscarriage of justice [7] The review powers in s. 120(1)(

a) are subject to the limits set out in s.120(1)(b). While s.120 sets out three distinct basesupon which an appellate court may quash a conviction, each shares the same underlying rationale – a conviction which is the product ofa miscarriage of justice cannot stand – R v Morrissey (ON CA), [1995] OJ No 639 (CA) at para 87. [8] An appellate court is entitled to review the trial evidence, re-examine it and re-weigh it, but only for the limited purpose ofdetermining if it is capable of supporting the conclusion of the Justice of the Peace – R v Burns [1994] SCJ No at para 14.

The courtmust determine whether the Justice of the Peace could reasonably have reached the conclusion it did on the evidence heard at trial.Provided that threshold test is met, the appellate court is not to substitute its view for that of the Justice of the Peace, nor permit anydoubts it may have to cause it to order a new trial – Burns at para 15. [9] The findings of fact made by a Justice of the Peace at trial and the inferences drawn therefrom are entitled to deference – R vBiniaris 2000 SCC 15 at para 24.

It is incumbent upon the appellant to demonstrate that the findings are tainted by some legal error,flow from a material misapprehension of the evidence, or fall outside of the range of reasonableness available on the evidence – R v Le2018 ONCA 56 at para 8, R v Mann 2004 SCC 52. [10] The credibility of the accused’s evidence was a central issue in this trial. On appeal, credibility assessments are entitled tosignificant deference.

Absent palpable and overriding error, an appellate court will not intervene – R v Chhina 2016 ONCA 663 at para21, R v Wadforth 2009 ONCA 716 at para 66. [11] A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to thesubstance of the evidence, or a failure to give proper effect to evidence – Morrisey at para 83.

A misapprehension of the evidence doesnot necessarily render a verdict unreasonable, nor is such a finding a condition precedent to finding a verdict was unreasonable. “Themisapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to thereasoning of the trial judge.

Once those hurdles are surmounted, there is the further hurdle … that the errors thus identified must play anessential part not just in the narrative of the judgment but in the reasoning process resulting in a conviction” – R v Lohrer 2004 SCC 80 atpara 2, R v Cloutier 2011 ONCA 484. [12] Trial judges are “not obliged to discuss all of the evidence on any given point or answer each and every argument of counsel”– R v Vuradin 2013 SCC 38 at para 17.

The failure to consider relevant evidence may amount to an error of law, but unless the reasons asa whole show that it was not done the failure to record the fact of it being done is not a proper basis to conclude there was an error – R vTippet 2015 ONCA 697 at para 28. [13] Reasons for judgment must be read as a whole and context matters – Morrissey at para 28. For provincial offence appeals, inmy view the reviewing court should keep in mind that those courts are presided over by a predominantly lay bench.

While Justices of thePeace are well-trained and must apply the appropriate legal standards, failure to express their findings in familiar phrases or formulasdoes not necessarily indicate error. Misapprehension of the Evidence [14] The Appellant submits that the Justice of the Peace made several errors in his assessment of the accused’s evidence: i. Erred in failing to consider the corroborating evidence of the witness Mr. Porter. ii. Erred in conflating what the appellant had the ability to see with what he would necessarily have seen when looking towards theoncoming motorcycle. iii.

Erred in taking judicial notice of the powers of human sight. iv. Erred in relying on extraneous factors. v. Erred in relying on figures for time and distance the Justice of the Peace appears to have calculated himself in rejecting theAppellant’s testimony. vi. Failed to resolve the difference in the speed estimates between the Prosecution and Defence experts.

vii. Erred in finding the accused’s evidence was not credible. [ 15 ] The Respondent submits that the many errors alleged under this heading reflect nothing more than disagreement with the factual findings of the Justice of the Peace at trial. [ 16 ] Mr. Porter was the driver of the truck turning into the accused’s workplace. He was driving an open flatbed trailer 70 feet long in total. He testified that he checked his mirrors before starting his turn and did not see the motorcycle. That was before the appellant commenced his turn. Mr. Porter did not see the accident.

He heard the sound but when he first got out of his truck he checked under the trailer to see if he’d hit anything. It wasn’t until he looked across to the other lane that he saw what had happened. [ 17 ] The court’s reasons do not refer to Mr. Porter’s evidence that he checked his truck mirror, but the transcript of January 18 th , 2017 at page 115 shows the court was aware of the evidence and aware of the defence position in relation to that evidence. The court discussed that evidence with defence counsel during final submissions.

Defence counsel continued submissions on this point and related evidence from pages 115 to 118 of the transcript. [ 18 ] It’s implicit in the reasons that the Justice of the Peace did not find Mr. Porter’s evidence left a doubt in relation to proof of the actus reus or provided much support for Mr. Hayward’s claim of due diligence. Mr. Porter’s evidence on this point was limited. He checked his mirrors prior to starting his turn into the driveway. He didn’t see the collision and he wasn’t aware of the circumstances of the collision. Mr.

Hayward testified that the tractor trailer started its turn first before he pulled into the roadway. In that context Mr. Porter’s evidence was relevant but of limited value on the whole of the evidence. The court did consider the evidence as shown in the discussion with counsel. The failure to refer to that point in otherwise thorough reasons does not amount to an error of law in that context. [ 19 ] The appellant submitted that the trial court did not resolve the expert’s differences as to the speed of the motorcycle or resolve other issues of fact essential to the defence.

The two experts were largely in agreement as to the circumstances of the accident. The Crown expert estimated the motorcycle’s speed at 72 to 93 km/hr in a 60 zone. The defence expert calculated the speed of the motorcycle slightly differently resulting in a similar but higher range – 90 km to 107 km/hr. The Justice of the Peace accepted that the motorcycle was speeding prior to impact.

His finding that the accused turned directly into the path of that speeding vehicle in circumstances that created a hazard was not dependent upon the precise speed so it was not necessary to resolve the difference in the estimates. [ 20 ] The court’s conclusion that the accused’s evidence was not credible was based on all of the evidence at trial.

The reasons at pages 26 – 28 focus on the accused’s own evidence and found that it was “very hard to believe” that the accused could look north through a flatbed tractor trailer, see that it’s clear for 400 feet, look again as he entered the second lane past the truck and see that it’s clear for 200 feet, then find there was a motorcycle “right there” after he entered the lane. Mr. Hayward testified that he had “no idea” where the motorcycle came from. As the Justice of the Peace asked at page 28, if Mr.

Hayward looked before he entered the lane as he described, how could he miss the motorcycle? [ 21 ] The appellant submitted that the court erred in taking judicial notice of the powers of human sight (Factum 15(3)(d)). The court noted at page 28 that it was 4:00 p.m. at the time, the weather was sunny and the roads were dry. The accused testified that he could see 400 feet northbound from one vantage point and 200 feet northbound before he entered the second lane.

While perhaps not every illustration was necessary, the court’s assessment of the accused’s opportunity to see oncoming traffic was founded in the evidence and was reasonable. [ 22 ] By way of further illustration on that point, the Justice of the Peace engaged in observation time estimates. The time estimates were not put as hypotheticals to either expert witness and neither party had an opportunity to make submissions on those calculations. I agree with the appellant that the Justice of the Peace erred in engaging in his own calculations in that manner.

The illustration was unnecessary and did not add anything to the central point discussed again further in the reasons from pages 29 to 31 – on a clear day with the view the appellant said he had, it was simply not credible that he looked but did not see or hear the motorcycle that hit his driver’s door moments later. [ 23 ] While the appellant disagrees with the central findings of fact, the evidence as a whole was reasonably capable of supporting those findings and the verdict that resulted.

The unnecessary reference to calculations to illustrate a conclusion already achieved on the evidence did not result in an unfair trial or a miscarriage of justice. Proof of the Prohibited Act and the Reasonable Doubt Standard [ 24 ] Both parties agree that Failure to Yield contrary to s.139 of the Highway Traffic Act is a strict liability offence – R v Dillman 2008 ONCJ 101 . The prosecution must prove that the accused committed the prohibited act beyond a reasonable doubt.

It is then open to the accused to show, on the balance of probabilities, that he or she took all reasonable care to avoid creating the hazard. [ 25 ] The Justice of the Peace presiding at trial correctly identified the offence as a strict liability offence and correctly identified the reasonable doubt standard as applying to the proof of the prohibited act. [ 26 ] The Crown submitted that this trial was not really about proof of the actus reus as the evidence at trial including the accused’s own evidence showed he turned directly into the path of a speeding motorcycle and was hit almost immediately after he entered that lane.

The only issue on those facts was due diligence. The defence submitted that the Crown failed to prove the prohibited act as the accused entered into a clear lane. It was the extreme speed of the motorcycle that caused it to appear in that lane, close the distance of beyond 200 feet to 20 feet without being seen, then crash into the accused’s vehicle. [ 27 ] The Justice of the Peace carefully summarized the prosecution and defence evidence, then considered all of the evidence “in its entirety” along with the submissions of counsel in coming to a final conclusion.

The court found that the Crown proved beyond a reasonable doubt that the appellant committed the prohibited act. He turned into the path of an oncoming vehicle in circumstances that created an immediate hazard. That finding was reasonably supported by the whole of the evidence including the circumstances of the

collision and portions of the accused’s own testimony about the impact. [28] While the court did not cite the WD framework, the reasons of the Justice of the Peace show he correctly applied the conceptof reasonable doubt to the proof of the actus reus on the whole of the evidence. He referred to the evidence important to both parties andthe arguments raised. The instructions in R v WD (SCC), [1991] SCJ No 26 and R v Lifchus (SCC),[1997] SCJ No 77 are not “magic incantations that need to be repeated word for word” by every trier of fact – Lifchus at para 40, R vMurray 2017 ONCA 393 at para 174.

What matters is substance not form. Considering the circumstances of the collision, the evidenceof the witnesses, and the testimony of the two experts, the trial court’s finding with respect to the proof of the prohibited act wasreasonable. Due Diligence [29] Once the Crown proved beyond a reasonable doubt that the appellant committed the prohibited act, it was open to theappellant to show on the balance of probabilities that he took reasonable steps to avoid creating a hazard. The appellant’s evidence wascentral to his defence of due diligence.

As discussed above, the accused’s evidence on this point was rejected as inconsistent with thecircumstances of the collision and not credible given the whole of the evidence at trial. That finding was reasonably available to the trialcourt and is entitled to deference. Conclusion [30] The s.139 HTA duty to yield requires that a driver determine whether entry into the roadway would constitute an immediatehazard to oncoming traffic. The fact that others are disobeying speed laws does not entitle the driver entering the roadway to disregards.139.

The driver must look and assess all oncoming traffic, judge the speed of the other vehicles, the size and actions of those vehicles,the road conditions, visibility, and any other relevant factor to determine whether it would be safe to enter the roadway. [31] In R v Dillman 2008 ONCJ 101 a driver operating a large gravel truck turned left across Airport Road in Peel Region. Whenhe started the turn there was no visible oncoming traffic. However, the topography was such that oncoming traffic was only visible to thepoint of a rise about 1000 feet (305 metres) from the intersection.

Vehicles came over the rise while the gravel truck slowly turned. Theywere able to stop with the exception of a motorcycle travelling at high speed. The motorcycle drove into the rear passenger side of thegravel truck. The court held that where visibility is limited, drivers making a turn must make allowances for the actions of other drivers.The left turning driver is not entitled to simply assume others will strictly adhere to speed limits. However, Mr. Dillman made the turn insafety.

His truck moved through the turn more slowly than other vehicles might, but when other cars appeared there was room for themto stop and they did so. The crash of the motorcycle resulted from speed and inattention by that driver. [32] The appellant argued at trial and on appeal that this case involved the same situation as Dillman, a turn made in completesafety then a crash caused solely by a speeding motorcycle. The trial court found that the circumstances of this case were quite different.The appellant did not have time to make a safe turn when he pulled into the path of the motorcycle.

There was not enough time for themotorcycle to stop when the appellant entered his lane. That finding is reasonably supported by the evidence of the witnesses, thecircumstances of the collision including the point of impact, the expert evidence and even portions of the accused’s evidence. Theaccused’s assertion of due diligence, that he “did everything reasonable and ensured that it was safe to go” (January 18, 2017 p.88) justbefore being hit was reasonably rejected by the court. [33] The verdict at trial and the findings of fact essential to that verdict were reasonably supported by the evidence.

The Justice ofthe Peace applied the reasonable doubt standard to the whole of the evidence in considering whether the prosecution had proved theprohibited act. The defence failed to prove due diligence on the balance of probabilities. While the added illustrations of the inevitabilityof the collision were unnecessary, there’s nothing in the conduct of the trial, the findings of the court or the application of the law thatamounts to a miscarriage of justice. The appeal is dismissed. Released: February 16, 2018. Justice J.F. Kenkel