R. v. Canuh, 2013 ONCJ 820

COURT FILE No.: Brockville * File Number: DATE: 03/20/2013 Citation: R. v. Canuh , 2013 ONCJ 820 ONTARIO COURT OF JUSTICE BETWEEN: Her Majesty the Queen — and — Peter Apiafor Canuh Before Justice of the Peace B. Mackey Heard on November 8, 2012, December 3, 2012, January 14, 2013, January 15, 2013 and February 12, 2013 Reasons for Judgment delivered orally and released on March 20, 2013 Gerry McDougall ................................................................................................ for the prosecution William Fuhgeh.................................................................... for the defendant Peter Canuh Apiafor JUSTICE OF THE PEACE B. Mackey:

PREAMBLE [ 1 ] The accused faces two charges: Firstly, a Careless Driving charge under

section 130 of the HTA; and, Secondly, a Fail to Remain charge under section 200 (1) (

a) of the HTA. [ 2 ] On March 9, 2011, an accident occurred on Highway 416 just north of the Highway 401 connection. The vehicles involved in the accident were travelling northbound on the 416 which is a divided highway. There is also a single, east bound exit lane from the 401 that creates a short third lane entrance to the 416 approximately at the accident site. [ 3 ] Mary Morrison was driving a red Ford Mustang while heading northbound on the 416 at approximately seven o’clock in the evening.

She indicated that the weather conditions were very poor with snow and that driving conditions were down to one lane of traffic even though other vehicles such as larger trucks, SUV’s and transport trucks were using the fast lane. [ 4 ] Miss Morrison further indicated that she was driving at approximately 60 to70 kph. At some point, she moves into the fast lane and a vehicle pulls up close behind her. [ 5 ] Miss Morrison described the vehicle as a black SUV that signalled, by flashing the SUV lights, for her to move her vehicle into the slow lane.

As she moves from one lane to the other, there is contact between the vehicles. [ 6 ] She described the black SUV hitting her rear driver’s side causing her vehicle to spin out of control in a full 360 degree turn. The vehicle spun into the middle of the traffic lanes and finally hit a guard rail running along the third incoming lane. Two vehicles upon witnessing the accident pulled over to assist. [ 7 ] She further noted that both vehicles spun out when they came in contact with each other. [ 8 ] The cost of the damage done to her vehicle was approximately $9,000.

[ 9 ] Miss Morrison also noted that the driver of the SUV, once gaining control of the vehicle, increased speed while leaving the scene of the accident. She was definite in stating that the driver had no intention of stopping and that he had to have known he hit another car.

She based this on the accident conditions and the fact that other vehicles had stopped to assist the driver of the red Mustang. [ 10 ] The second Crown witness, Natalie Tommy, was heading northbound on the 416 at the same time and around the four mile marker saw a black SUV with red diplomatic plates which had pulled out to pass a small red car while accelerating. She saw the SUV swerve to the right hitting the red car which subsequently spun out and hit the guard rail.

The black, SUV fishtailed until the driver gained control followed by the brake lights coming on before the car then “took off,” to use her expression. [ 11 ] Miss Tommy followed the black, SUV with the red diplomatic plates and said she never lost sight of the vehicle while she called 911. [ 12 ] She stated that she followed at speeds of up to 135 kph from her previous speed of 60 to 70 kph. She indicated that she was never more than a car length away from the vehicle until the 911 operator informed her that the OPP could see him and would form a gauntlet around the SUV.

She pulled up behind the stopped vehicle and was confident that it was the same vehicle with the same diplomatic licence plate. [ 13 ] She confirmed that the road conditions were “not great,” and it was snowing with slippery road conditions. [ 14 ] The next witness, Diane Newman was also heading north on the 416 highway at the same time. The red Mustang passed her vehicle in the slow lane followed closely by a dark-coloured SUV. Once past Miss Newman, the red Mustang began to pull into the slow lane in front of her vehicle and behind a transport truck.

The SUV was “very close to her” to use Miss Newman’s words. [ 15 ] She stated that the SUV tried to pass the red Mustang, but started to fishtail and the “rear end of his passenger side hit the front end of the Mustang.” The SUV then fishtailed some more and sped off. She noted that this happened close to the 401 highway where an on-lane merges with the slow lane of the 416 highway. [ 16 ] Under Examination-in-Chief, she stated that she was driving at around 90 kph because of the snow and the red Mustang slowly passed her.

She confirmed the poor road conditions. [ 17 ] Miss Newman remembers thinking at the time that the SUV was too close, around five feet, to the red Mustang because she said that “as she passed me, he was right beside me as well.” [ 18 ] She also noted that the Mustang was “not fully in the slow lane when the dark SUV tried to pass her.” It was then that the SUV started to fishtail and “on one of those fishtails, he hit her on the driver’s side of her car.

In fact, she indicated that she “felt the SUV had a very pronounced fishtail.” She also confirmed that she saw the contact between the two vehicles. [ 19 ] Miss Newman further stated that the dark-coloured SUV “continued to sway after it hit the vehicle for a few seconds, and then he appeared to me to pick up speed and take off.” [ 20 ] The defendant, Peter Apiafor Canuh gave evidence that the road conditions were poor given the snow fall. He stated that he flashed his lights at a transport truck in order to pass and when he did his vehicle fishtailed and he increased speed to straighten it out.

He estimated his own speed at 60 to 70 kph and never more than 80 to 100 kph. He never indicated braking and was unaware of any accident or contact with another vehicle. ISSUES BEFORE THE COURT [ 21 ] These are strict liability offences. The Crown must prove the essential elements of the charges and once proven due diligence is open to the defendant. No conviction will be entered unless the court is satisfied, beyond a reasonable doubt, of the guilt of the defendant. [ 22 ]

Section 200. (1) (

a) of the HTA, normally referred to as Fail to Remain at the Scene of an Accident, speaks to the, “Duty of a person in charge of a vehicle in case of accident,” specifically noting that, “Where an accident occurs on a highway, every person in charge of a vehicle...that is directly or indirectly involved in the accident shall, (

a) remain at or immediately return to the scene of the accident. [ 23 ]

Section 130 of the HTA refers to Careless Driving where, “Every person is guilty of the offence of driving carelessly who drives a vehicle...on a highway without due care and attention or without reasonable consideration for other persons using the highway.” [ 24 ] The Crown must prove first that there was a collision between the vehicles, second that Peter Apiafor Canuh was involved, third that the defendant drove carelessly at that time and place, and fourth that he failed to remain at the scene of the accident.

To prove fail to remain the Crown must prove that the defendant was aware of his involvement in any accident. [ 25 ] Defence referred to a number of cases regarding Careless Driving in the submission package. R. v.

Beauchamp is a 1953 case which notes that “an accused driver is not under a standard of perfection” when it comes to the expression of “without due care and attention or without reasonable consideration for others.” Beauchamp goes on to articulate that the proper test under Careless Driving is proof beyond a reasonable doubt that a driver, “ in the light of existing circumstances of which he was aware or of which a driver

exercising ordinary care should have been aware, failed to use the care and attention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances.” [ 26 ] Defence also put forward Regina v. Wallings (1961), and, Preston v. Turgeon (1958) where the court indicated that a mere “error of judgement” was not the same as driving without due care and attention. R. v.

Globocki (1991) reaffirms “that mere inadvertent negligence will not necessarily support a conviction for careless driving” and that “The Crown must do more than point to a bare act of negligence...it must show a sufficient departure from the standard of a prudent and reasonable driver.” R. v. Januario (2002) speaks to the difference between “without reasonable consideration” and “reasonably inconsiderate.” [ 27 ] Similarly, regarding the Fail to remain charge, the Defence introduced R. v.

Racimore (1975) which states that “where the accused’s failure to remain is due to ignorance of the essential fact that there has been contact between the vehicles, his commission of the actus reus of the offence was involuntary and he must be acquitted.” R. v. McMillan (2013), Justice Dechert of my own bench notes from Sault Ste.

Marie (1978) that in a strict liability offence “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.” Justice Dechert goes on to state that the “the defendant’s exculpatory testimony...is sufficiently credible to leave me in a state of reasonable doubt” in reference to being aware of any involvement in the accident.” [ 28 ] Defence additionally makes the argument that snow and ice and slippery roads are so common to Canadian winters and drivers that few would not have encountered skidding and fishtailing.

The point being that many would be guilty of Careless Driving under that definition leaving the roads to only a “selected few of extremely experienced expert drivers under such a high standard” thereby depriving “the vast majority of Canadians...of the use of their motor vehicles.” [ 29 ] It is further argued that the defendant was driving normally on the date in question and “any fishtailing happens to all drivers driving during snowy or slippery conditions in Canada.” Decision of the Court [ 30 ] Let me address this concern raised by defence counsel by referring to and repeating the cases mentioned above: Preston v.

Turgeon (1958) where the court indicated that a mere “error of judgement” was not the same as driving without due care and attention and, R. v. Globocki (1991) which reaffirms “that mere inadvertent negligence will not necessarily support a conviction for careless driving” and that “The Crown must do more than point to a bare act of negligence...it must show a sufficient departure from the standard of a prudent and reasonable driver,” as well as, “R. v.

Januario (2002) which speaks to the difference between “without reasonable consideration” and “reasonably inconsiderate.” [ 31 ] This court is fully aware of the fact that no court should judge Careless Driving as being the same as a mere error of judgement per se or involuntary, inadvertent negligence or being inconsiderate.

In fact, Careless Driving should be reserved for cases that, to quote the Globocki case “show a sufficient departure from the standard of a prudent and reasonable driver.” Careless Driving is a serious charge and demands serious evidence to establish guilt beyond a reasonable doubt. [ 32 ] The evidence overwhelmingly supports and proves that an accident occurred on Highway 416 on the date and at the time noted. There is no question that there was an accident at that time and date and at that location.

Indeed, OPP Officer Johnson noted damage on the black SUV consistent with the contact with the red Mustang as described by the witnesses. [ 33 ] The court accepts that Mr. Apiafor Canuh is an experienced driver for the High Commission of Cameroon and that he was on Highway 416 at the time and date in question having left his Ambassador in Syracuse, New York. He was on his way back to Ottawa travelling north off of Highway 401 at the exact time and place of the accident. [ 34 ] Mr. Apiafor Canuh has stated that he was unaware of any accident.

That issue will be revisited, but the court is satisfied from the multiple eye witness accounts, including the OPP officer’s account of visually confirming related damage to the black SUV, and the identification of the red diplomatic plates, that his vehicle was the one involved in the accident. The following of the exact vehicle from the accident scene by one eye witness additionally confirms the involvement of the defendant. [ 35 ] Were his actions careless? Did he drive without due care and attention or without reasonable consideration for other persons using the highway?

In answering these questions, the court will look to the standard of what a prudent and reasonable person would do in the same circumstances. [ 36 ] The court notes that the defendant was aware of the poor road conditions and stated that he was driving at 60 to 70 kph with a high end speed of 80 to 100 kph due to those same weather related conditions. He specifically recalled the snow and slippery roads with the winter driving conditions being notably poor. Indeed, he had noticed the snow storm as he cleared customs into Canada.

He further indicated that visibility was also less than ideal although, in his words, “I managed to see the white line ahead of me with some difficulty.” [ 37 ] The defendant testified that he was initially in the slow lane and then signalled to move into the fast lane where a couple of cars were ahead of him and a truck ahead of them. He noted in Examination-in-Chief that some cars followed the truck and others passed the truck when it moved into the right hand, slow lane.

He stated the road ahead of him was clear of other cars so he moved up on the truck and in his own words, “I drove to (sic) I was on the tail of the big truck and I flickered my headlights.” [ 38 ] At that point, he said that his SUV slipped a bit and fishtailed to the right. Snow was spraying up from the rear of the

truck. He regained control of the vehicle and drove on until an officer pulled him over. When confronted by the officer about the scratch on the vehicle’s right side, he said that he did not have any scratch and if there was one he did not know where it came from.

In particular, he said, “I looked at the dent and told them I did not have a scratch like this on my car.” [ 39 ] He stated that he did not notice any red Mustang, but was aware that there was a car behind him immediately after he passed the truck. [ 40 ] Under cross-examination, the defendant spoke more specifically about two cars being ahead of him and a truck ahead of those cars which subsequently moved to the right lane. This would more correctly place the truck in the slow lane as described by the independent witnesses.

One car ahead of him then moved into the slow lane while the other car continued in the fast lane moving ahead of the truck. The defendant accepted under cross examination that the car ahead of him that moved to the right must have been the red Mustang. [ 41 ] The defendant further noted under cross examination that when moving ahead he flashed his lights for concern that the truck would not stay in its own lane – in other words the right slow lane.

This contradicts his earlier testimony that the truck was in the fast lane directly in front of him. [ 42 ] As noted, the court is satisfied that the red Mustang was the car immediately ahead of the defendant and the vehicle the defendant described as moving out of his way into the slow lane. The court is also satisfied from the evidence of the eye witnesses and the connected damage to the two vehicles that the defendant moved up on the red Mustang and flashed his lights for the driver to move the Mustang out of the way, to the slow lane.

While the Mustang was in the process of moving lanes, the court is satisfied that the SUV came too close for safety, given the witness estimate of five feet between them, and began to fishtail or lose control. It was during this unsafe time that the SUV clipped the Mustang as that vehicle moved out of the fast lane thereby causing it to spin out of control. The accepted evidence overwhelmingly confirms this scenario. [ 43 ] The court does not accept the defendant’s account of sliding at the tail end of the transport truck without any contact and the evidence in cross-examination also puts an end to this scenario.

The driver may have had his eyes on the truck, but, in actuality, the SUV came perilously close to the Mustang, lost control as the vehicle attempted to pass and clipped the Mustang causing it to spin out of control and hit the far guard rail. [ 44 ] Fortunately, no one was badly hurt in this collision. However, driving so closely in a winter storm where you actually hit another car that is attempting to move to the other lane because of your actions in slippery road conditions is not what a prudent, reasonable driver would do. This is not mere inattention, simple poor judgement or inconsiderate driving.

It represents a sufficient departure from the objective standard of a prudent and reasonable driver. [ 45 ] This accepted description of the accident clearly speaks to a lack of reasonable consideration for other persons using the highway. It was patently unsafe and not prudent for the SUV to be so close to the Mustang under any circumstances and particularly in an acknowledged snow storm with slippery road conditions and questionable visibility.

A driver wanting to pass another vehicle must remain safely at a distance from the other vehicle to ensure that the vehicle’s passage to the other lane is accomplished before attempting to pass.

There is furthermore no evidence to show that the defendant did all he could to avoid the collision. [ 46 ] Therefore, the court finds Peter Apiafor Canuh guilty beyond a reasonable doubt of the offence of Careless Driving. [ 47 ] The remaining charge speaks to the duty of a person in charge of a vehicle to remain at the scene or return post-haste and involves those directly involved, at the highest level, and others indirectly involved, at various levels of culpability. In this case, the court has established that Peter Apiafor Canuh was driving carelessly and thereby causing an accident.

The remaining question is: Was he aware, or should he have been aware, of the accident and remained at, or returned immediately to the accident scene? [ 48 ] The defendant stated categorically that, “I did not notice this accident.” He went on to say that if he did he would have stopped. He also noted that “my eyes were on the lane when I was fishtailing.” [ 49 ] The fishtailing or swerving action is relevant to the accident. The defendant initially said it happened as he approached the tail end of the transport truck after the car ahead of him, presumed to be the red Mustang, had moved over.

He indicated also that he slowed coming up to the truck and then when he attempted to increase his speed, to pass the transport truck, the SUV slid. [ 50 ] The court accepts the contrary evidence which shows that the truck had moved into the right hand, slow lane of traffic leaving the red Mustang ahead of the black SUV. [ 51 ] The Crown’s first witness, Miss Morison, who was driving the red Mustang that was involved in the accident, answered a question in examination-in-chief with: “...when they came to pass me, they approached...they came up really close behind me and they flashed their lights at me, signalling to move aside, so I was trying to move into the other lane of traffic to let them go around me.

And it would have been the rear of their passenger side that hit my rear driver’s side. And both vehicles, when they came into contact, both vehicles, like, spun out.” Additionally, she answered that the other vehicle lost control at contact, but the other driver was subsequently able to gain control of the SUV and keep driving.

Miss Morrison stated that the SUV increased its speed showing no intention of slowing or stopping. [ 52 ] The witness, Miss Tommy, who was driving behind the SUV and who followed it until the OPP detained the driver, said that, “I saw a black SUV with red diplomatic plates pull out in front of a small red car and he started to accelerate. And then the car swerved to the right where he hit the red car. And that car sort of spun and hit the guard rail.

His brake lights went on and then he put his foot down and he took off and I called 911 right away.” [ 53 ] The witness, Diane Newman, was also on the 416 driving at the same time and location northbound in the slow lane when a red Mustang slowly passed her. The Mustang was followed closely by a dark-coloured SUV. Once the Mustang was past Miss Newman’s vehicle it began to pull into in her lane immediately in front of her. There was a transport truck in front of the red Mustang in

the slow lane. In her words, “The dark-coloured SUV was very close to her, and as she was pulling in, he proceeded to try and pass her. He started to fishtail and the rear end of his passenger side hit the front end of the red Mustang. He fish-tailed a bit more and then sped off.” [ 54 ] Miss Newman stated that the SUV was approximately five feet from the rear of the red Mustang.

She said, “I just remember thinking he was very close to her, because as she passed me, he was right beside me as well.” It was also noted that, “She proceeds to get into my lane...but she was not fully in my lane whenever the dark SUV tried to pass her.” [ 55 ] The same witness testified that she “felt it was an obvious hit.” And that, “I felt the SUV had a very pronounced fishtail.” Finally, that the SUV, “...continued to sway after he hit the vehicle for a few more seconds, and then he appeared to me to pick up speed and take off.” [ 56 ] So, the court now has a picture of the defendant’s SUV flashing lights, not at the transport truck, but at the red Mustang to get the driver to move over from the fast to the slow lane in the snow storm and poor driving conditions.

Before the Mustang can complete its manoeuvre, the SUV, which is literally within a few feet of the other car’s bumper, moves up and clips the side of the Mustang. Both cars are swerving or fishtailing with the Mustang then circling back to the far right, off-road guardrail.

Significantly, the SUV driver applies his brakes after the collision, gains control of the vehicle and then drives away at speeds of up to 130 kph according to the independent witness who followed him. [ 57 ] It is obvious to the court, based on the overwhelming, quantum of evidence, that the defendant knew or should have known, given the contact, the fishtailing and immediate actions’ of the other vehicles, not to mention the obvious loss of control of the Mustang, that the defendant had been involved in an accident.

It was his car that came, not just close, but in contact with the vehicle that immediately spun dangerously around on the highway next to his lane. [ 58 ] It is simply unbelievable that a driver, under these circumstances, would not know about the collision or the aftermath. [ 59 ] The court is satisfied that the Crown has established the actus reus of the offence and has proven its case beyond a reasonable doubt. The court finds the defendant, Peter Apiafor Canuh, guilty of the charge of Failing to Remain at the scene of an accident. [ 60 ] Now we turn to the issue of submissions regarding sentencing.

Released: March 20, 2013 Signed: “Justice of the Peace Brian Mackey”