R. v. Rizvi, 2014 ONCJ 404

Citation: R. v. Rizvi , 2014 ONCJ 404 IN THE MATTER OF the Highway Traffic Act, R.S.O 1990, c. H.8 Between Her Majesty The Queen prosecutor and Syedali RIZVI defendant Ontario Court of Justice Mississauga, Ontario Quon J. P. Reasons for Ruling on Motion Of No Evidence and Ruling on Admissibility of Defendant’s Statements Trial (prosecution’s case only) held: May 16, 2014. Ruling on motion made on: August 15, 2014.

Charges: (1) s. 200(1)(

c) H.T.A. – “failing to supply name and address” (2) s. 199(1) H.T.A. – “failing to report an accident” Counsel: G. Hume, prosecutor B. Morris, legal representative for the defendant Cases Considered or Referred To: Ebsworth v. Alberta, 2005 ABQB 976 , [2005] A.J. No. 1792 (QL) (A.Q.B.). Graat v. R. (1982), (SCC), 31 C.R. (3d) 289 (S.C.C.). Hudon v. United States Borax & Chemical Corporation, (SK KB), [1970] S.J. No. 22 (QL), 11 D.L.R. (3d) 345(S.Q.B.). Lawson v. Watts (1957), (BC SC), 7 D.L.R. (2d) 758, [1957] B.C.J. No. 116 (QL) (B.C.S.C.). R. v. S. (R.J.), (SCC), [1995] S.C.J. No. 10 (QL) (S.C.C.). R. v.

Anderson, [1990] S.J. No. 298 (QL) (S.Q.B). R. v. Boudreau, (SCC), [1949] S.C.R. 262, 94 C.C.C. 1, 3 D.L.R. 81 (S.C.C.). R. v. Colquhoun, [2002] O.J. No. 349 (QL) (O.C.J.), per Quon J.P. R. v. DaCosta, (ON SC), [2001] O.J. No. 2392 (QL) (S.C.J.), per Wein J. R. v. Faruq, [2003] B.C.J. No. 2183 (QL) (B.C. Prov. Ct.). R. v. Fitzpatrick (SCC), [1995] S.C.J. No. 94 (QL) (S.C.C.). R. v. Fontaine (2004), 2004 SCC 27 , 18 C.R. (6th) 203 (S.C.C.).

R. v. Hajivasilis, 2013 ONCA 27 , [2013] O.J. No. 253 (QL), 114 O.R. (3d) 337 (O.C.A.), per O'Connor A.C.J.O., Doherty,Sharpe, Epstein JJ.A. and J. Cavarzan J. (ad hoc). R. v. Harris (2012), 104 W.C.B. (2d) 480, 2012 ONSC 6465, 2012 CarswellOnt 14880 (S.C.J.), per Ferguson J. R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64 (QL) (S.C.C.). R. v. Huntley, [1995] O.J. No. 2412 (QL) (Ont. Ct. (Prov. Div.)), per Knazan J. R. v. Ibrahim, [1914] A.C. 599. R. v. Jackson, (BC CA), [1977] B.C.J. No. 1117 (QL), 34 C.C.C. (2d) 35 (B.C.C.A.). R. v. Jarecsni, [2008] O.J. No. 4565 (QL) (O.C.J.), per Pockele J.

R. v. Jarvis, 2002 SCC 73 , [2002] S.C.J. No. 76 (QL) (S.C.C.). R. v. Ling, 2002 SCC 74 , [2002] 3 S.C.R. 814 (S.C.C.). R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59 (S.C.C.). R. v. Marshall, (SCC), [1961] S.C.R. 123 (S.C.C.). R. v. Naces, [2001] O.J. No. 3854 (QL) (O.C.J.), per Horkins J. R. v. Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3, [2002] S.C.J. No. 38 (QL) (S.C.C.). R. v. Ouimet, [2012] M.J. No. 97 (QL) (M.Q.B.). R. v. Parol, 2011 ONCJ 292 , [2011] O.J. No. 2641 (QL) (O.C.J.), per Duncan J. R. v. Relleve, [2004] M.J. No. 269 (QL), 6 M.V.R. (5th) 223 (M.Q.B.). R. v. Simpson, (SCC), [1988] S.C.J.

No. 4 (QL) (S.C.C.). R. v. Jagrup Singh, 2007 SCC 48 , [2007] 3 S.C.R. 405, [2007] S.C.J. No. 48 (QL) (S.C.C.). R. v. Slopek (1974), (ON CA), 21 C.C.C. (2d) 362 (O.C.A.), per Gale C.J.O., Brooke and Martin JJ.A.

R. v. Spencer, 2007 SCC 11 , [2007] S.C.J. No. 11 (QL) (S.C.C.). R. v. Teske, (ON CA), [2005] O.J. No. 3759 (QL) (O.C.A.), per Doherty, Weiler and Goudge JJ.A. R. v. White, (SCC), [1999] 2 S.C.R. 417 (S.C.C.). R. v. Wilson, (AB KB), [1960] A.J. No. 30 (QL), 37 W.W.R. 670 (Alta. Dist. Ct.). R. v. Wenham, 2013 ONSC 7431 , [2013] O.J. No. 5535 (QL) (S.C.J.), per Ellies J. R. v. Visuvalingam, [2002] O.J. No. 3515 (QL) (O.C.J.), per Quon J.P. Shah v. Becamon, 2009 ONCA 113 , [2009] 94 O.R. (3d) 297, [2009] O.J. No. 478 (QL) (O.C.A.), per Laskin, MacPherson andArmstrong JJ.A. Toronto (City) v. Baillie, [2007] O.J.

No. 2178 (QL) (O.C.J.), per Quon J.P. Toronto (City) v. Bednarski, [2009] O.J. No. 2955 (QL) (O.C.J.), per Quon J.P. United States v. Sheppard (1976), (SCC), 30 C.C.C. (2d) 424 (S.C.C.). Woodbridge v. Bragg (1956), (BC SC), 5 D.L.R. (2d) 413 (B.C.S.C.). Statutes, Regulations and Rules Cited: Canadian Charter of Rights and Freedoms, 1982, ss. 7, 9, 10 and 10(b). Highway Traffic Act, R.S.O. 1990, c. H.8, 1(1), 1.1, 199, 199(1), 199(3), 200, 200(1)(c), 200(2). Reference Material Cited: Archibald, T., Jull, K., and Roach, K.

Regulatory And Corporate Liability: From Due Diligence To Risk Management (Aurora, Ontario:Canada Law Book Inc., 2007 Ed.). Paciocco, D.M. and L. Stuesser, L., The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011).

1. INTRODUCTION [ 1 ] As licensed drivers, most of us are aware that if we unfortunately get into a motor vehicle accident with another vehicle that we are to stop and exchange driver’s licenses, vehicle permits, and insurance slips with that other driver. And, for the most part, we are also mindful of the obligation to report or notify the police promptly about that accident.

In Ontario, this exchange of information between the respective drivers involved in an accident and their obligation to personally and individually report and provide details of the accident promptly to the police is legally required if there is an injury or if the total damage to property or to all the vehicles in the accident appears to be valued at more than $1000. These legal requirements are set out in s. 200 and s. 199, respectively, of Ontario’s Highway Traffic Act , R.S.O. 1990, c. H.8.

However, if one of the drivers involved in the collision fails to provide or refuses to provide that exchange of information to the other driver, or fails to report the accident straightaway to the police when required to do so, then the recalcitrant driver could be charged with committing several offences under those sections of the Highway Traffic Act . [ 2 ] Now, in respect to the regulatory proceeding before me, it is this legal requirement to exchange information after a motor vehicle accident and to immediately report the accident to the police that forms the basis for the charges laid against the defendant, Syedali Rizvi.

The defendant had supposedly been involved in a minor collision with another vehicle at an Esso gas station in Mississauga on June 19, 2013, but had failed or refused to provide his name, address, and other required information to the other driver involved, as well as failing to promptly report the accident as required to the nearest police officer. Specifically, the defendant had been charged with committing two offences under the Highway Traffic Act in failing to supply his name and address to another motorist when asked for that information under s. 200(1)(

c) and by failing to promptly report that accident to the nearest police officer under s. 199(1). [ 3 ] In addition, this alleged collision involving the defendant had supposedly occurred at approximately 12:15 p.m. within the property of the Esso gas station located at Erin Mills Parkway and Credit Valley Road, in the City of Mississauga. The other driver involved in the alleged collision was 18-year old Marek Ruta, a relatively new driver, who had been pumping gasoline into his father’s motor vehicle at the time in question.

While Ruta had been putting gas into his father’s vehicle, it is alleged that a blue-coloured Dodge Grand Caravan minivan that was being driven by the defendant had backed out from a parking spot on the gas station property, and while turning the vehicle to the defendant’s left, had allegedly backed into the front driver’s side bumper of the Ruta vehicle, causing damage to the Ruta vehicle that had apparently exceeded $1000. Immediately after the alleged collision occurred, Marek Ruta’s brother, who had been sitting in the Ruta vehicle, immediately sounded the vehicle’s horn.

Marek Ruta then said he approached the vehicle that had just hit his father’s vehicle. Ruta then said that the defendant had exited the blue-coloured minivan to see what, if any, damage had occurred between the two vehicles that had allegedly come into contact with each other. Ruta also said there had been no other person with the defendant at that time. Marek Ruta then asked the defendant for his driver’s licence and insurance information.

However, Marek Ruta said that the defendant had refused to give his driver’s license or insurance information to Ruta and instead waved his hand and said, “I did not hit you -- I did not hit you”, and then re-entered his vehicle and drove away from the gas station.

Because the defendant had refused to give Marek Ruta his driver’s license or insurance information, Ruta said he then used his cellphone to take a photograph of the license plate number on the vehicle driven by the defendant, as the defendant drove away. [ 4 ] However, Marek Ruta did not call 9-1-1 or contact the police right away because Ruta said he had not been hurt.

And, it was not until some 10 hours after the incident had occurred, which had been sometime before 10:20 p.m., when Ruta finally attended at the 11 Division police station of the Peel Regional Police located at Erin Mills Parkway and Dundas Street in Mississauga, to report the motor vehicle collision that had occurred earlier at the Esso gas station. Ruta had also felt that the driver who had backed into his father’s car had taken advantage of him because of his age and inexperience.

Ruta also did not think it had been right for someone involved in a motor vehicle collision to not comply with the requirement to exchange documents and information, as Ruta had felt that the defendant should have done the proper thing. [ 5 ] After Ruta had informed a police cadet working at the front desk of the police station about the incident at the Esso gas station, Cst. Ovidiu Cornea was called in to investigate the incident. Cst. Cornea arrived at 10:20 p.m., met with Marek Ruta, and then examined the Ruta motor vehicle where Cst.

Cornea said he had observed fresh scratches or damage to the paint of the bumper on the front driver’s side of the Ruta vehicle, which Cst. Cornea had estimated to be over $1000 worth of damage. Ruta then provided to Cst. Cornea the details of the incident, a sketch of the gas station, names of witnesses, the license plate number of the blue-coloured Dodge Grand Caravan motor vehicle that had backed into his father’s vehicle at the gas station, and a description of the driver. [ 6 ] Shortly after speaking with Marek Ruta, Cst.

Cornea attended at that Esso gas station located at Erin Mills Parkway and Credit Valley Road in Mississauga, to view the video surveillance of the incident, but had been unable to check the video. Cst. Cornea then determined that the license plate given to him by Marek Ruta had been registered to Syedali Rizvi (“the defendant”). Cst. Cornea then, at approximately 11:00 p.m., attended at the defendant’s residence, which is also located on Credit Valley Road in Mississauga, to continue his investigation. At the defendant’s residence, Cst.

Cornea noticed a blue or black-coloured Dodge Grand Caravan motor vehicle parked in the driveway of the defendant’s residence, and upon examining the Grand Caravan vehicle, Cst. Cornea said he had observed fresh paint scratches on the rear passenger-side bumper of the vehicle, which he estimated had also been over $1000 worth of damage.

[7] Cst. Cornea then spoke with the defendant, who had been the registered owner of that blue-coloured Dodge Grand Caravanminivan, and who had identified himself to Cst. Cornea with a valid Ontario driver’s license in the name of Syedali Rizvi. Cornea alsonoted that the registered owner of the minivan had matched the description provided by Marek Ruta of the other driver involved in theincident with Ruta at the Esso gas station. [8] In addition, when Cst.

Cornea had first approached the defendant, Cornea said he had not cautioned the defendant, as Cornea saidthe defendant was not under arrest, and that Cornea had no intention to charge the defendant at that time, and that Cornea had been stillinvestigating what had occurred in respect to the alleged motor vehicle accident. Moreover, Cst. Cornea said he only cautions anindividual when the individual is under arrest. Cornea also testified that in his conversation with the defendant, the defendant hadadmitted to being the driver involved in the incident at the gas station, but had informed Cst.

Cornea that there had been no collision andthat the defendant had not provided any information to the other driver because the other driver had wanted money from the defendant,and that the defendant had also believed at the time that he did not have to provide any information to the other driver. Cst. Cornea alsosaid that he did not record the defendant’s statements verbatim, but had only recorded the defendant’s statements in his notes in

summaryform, and that the defendant had not been given an opportunity to review Cst. Cornea’s notes that contained the defendant’s statements. [9] After Cst. Cornea had completed his investigation of the alleged collision between the Ruta vehicle and the defendant’s vehicle,Cst. Cornea charged the defendant, Syedali Rizvi, on July 4, 2013, with committing two offences under the Highway Traffic Act, R.S.O.1990, c. H.8, namely for: (1) “failing to supply name and address”, contrary to s. 200(1)(

c) and (2) for “failing to report an accident”,contrary to s. 199(1). [10] The trial of these two charges then commenced on May 16, 2014. However, the defendant did not personally attend the trial andproceeded with his trial through his legal representative, who had appeared on his behalf. Two witnesses testified during the prosecutionpart of the trial:

(1) Marek Ruta, the other driver involved in the alleged collision, and

(2) Cst. Cornea, the investigating officer. [11] During Cst. Cornea’s testimony, a voir dire had been conducted into the voluntariness of the defendant’s utterances or statementsthat had been made or given to Cst. Cornea on June 19, 2013. Only Cst. Cornea testified in the voir dire. After testimony was heard inthe voir dire, the legal representative for the defence submitted that the statements made by the defendant had not been voluntarybecause the defendant had lacked an operating mind, as described in R. v. Oickle, [2002] S.C.J. No. 38 (QL) (S.C.C.), since Cst.

Corneadid not provide the defendant with a caution before questioning the defendant. The defence also contends that since Cst. Cornea did notrecord the defendant’s statements verbatim, but had only summarized the defendant’s statements in his notes, then the defendant’sstatements cannot be considered voluntary or reliable. [12] However, based on the evidence presented in the voir dire, I had determined that the defendant’s utterances, statements, oradmissions had indeed been voluntarily given to Cst. Cornea beyond a reasonable doubt.

However, I had also informed the defence thatthey could re-address this issue in their closing submissions when the trial was completed and all the evidence had been entered. [13] The trial then continued after the voir dire was completed. At the end of the prosecution’s case, the defendant’s legalrepresentative brought a motion of no evidence based on two grounds.

For the “failing to supply name and address” charge under s.200(1)(c), the defence argued that since the incident had occurred in a gas station then the Highway Traffic Act did not apply to thatcharge, since the gas station property was not a “highway”, and as such, the defendant had not been required to supply his name andaddress to the other driver, even if there had been a motor vehicle accident in which the defendant had been involved in.

In regards to thesecond charge of “failing to report an accident” under s. 199(1), the defence contends that there is no evidence that there had been anyinjury or damage to either motor vehicle and that the estimate of the monetary value of the damage to either vehicle made by Cst. Corneahad only been Cst. Cornea’s personal opinion, and since Cst. Cornea had not been qualified as an expert in determining the monetaryvalues of the damage done to motor vehicles involved in collisions or accidents, then Cst.

Cornea’s opinion on the value of the propertydamage that he had observed is not evidence of damage to either vehicle amounting to a value exceeding $1000. [14] Moreover, the prosecution in their reply to the “no evidence” motion, had concurred with the defence submission that the “failingto supply name and address” charge under s. 200(1)(

c) did not apply to the defendant, since the gas station property was not a“highway”. However, before I could accept or adopt that joint submission that s. 200(1)(

c) of the Highway Traffic Act does not apply tothe defendant because the alleged collision did not occur “on a highway”, a proper review and consideration of the decision rendered bythe Court of Appeal for Ontario in R. v. Hajivasilis, 2013 ONCA 27 , [2013] O.J. No. 253 (QL), 114 O.R. (3d) 337, and thedefinition of “highway” set out in s. 1(1) of the Highway Traffic Act, along with an critical assessment of the specific nature or layout ofthe Esso gas station property in question, had to be first undertaken before it could be settled that the requirement to supply thedefendant’s name and address under s. 200(1)(

c) to the other driver does not apply to the defendant or the collision, if any, that hadoccurred on the property of the Esso gas station.

[ 15 ] These, therefore, are my written reasons on both my ruling on the defence motion of no evidence and on the voluntariness and admissibility of the defendant's statements made to Cst. Cornea, the police officer who had charged the defendant with committing the two offences in question. 2. THE CHARGES [ 16 ] The defendant has been charged under a

Part III information that was sworn on July 4, 2013, with committing the following two offences:

(1) Syedali Rizvi , of [residential address removed for privacy], Mississauga, Ontario, on or about the 19th day of June, 2013, at the City of Mississauga in the Central West Region did commit the offence of: being the person in charge of a motor vehicle, license number [ license plate number removed for privacy ], that was directly or indirectly involved in an accident on a highway to wit: Erin Mills Parkway, did unlawfully fail to supply his name and address to the person suffering loss when required to do so, contrary to the Highway Traffic Act Section 200(1))(c).

(2) And further that Syedali Rizvi , on or about the 19th day of June in the year 2013, at the City of Mississauga in the Central West Region, being the person in charge of a motor vehicle, license number [ license plate number removed for privacy ], that was directly or indirectly involved in an accident resulting in property damage exceeding $1000.00, did unlawfully fail to report the accident forthwith to the nearest Municipal or Provincial Police Officer and furnish such information as required contrary to the Highway Traffic Act Section 199(1)). 3.

SUMMARY OF TESTIMONY (

A) Relevant Testimony Of Marek Ruta (The Driver Of The Motor Vehicle That Had Been Allegedly Struck and Damaged By A Vehicle Registered To The Defendant) That Was Given Prior To Holding The Voir Dire [ 17 ] Marek Ruta testified that sometime in June he had been putting gas into his father’s motor vehicle at the Esso gas station located at Erin Mills Parkway just before Highway 403, which is located in the City of Mississauga. He also said that his brother had been with him and sitting in his father’s motor vehicle.

Then while Ruta was putting gas into his father’s motor vehicle, he said that a blue- coloured Dodge Grand Caravan motor vehicle came out of a parking spot and backed into his father’s motor vehicle, which also happened to be a Dodge Grand Caravan motor vehicle. Ruta also said that his brother had sounded the horn on his father’s motor vehicle immediately after the collision between the two vehicles. [ 18 ] Furthermore, Ruta said that after the other motor vehicle had hit his father’s vehicle he stopped gassing his father’s car and approached the other motor vehicle.

He then said the other vehicle had stopped and the driver of that blue-coloured vehicle then got out of his vehicle to take a look and view the damage. Then Ruta said the other driver had stated to Ruta, “I didn’t hit you -- I didn’t hit you.” Ruta also said he had asked the other driver for his driver’s license and insurance information, but the other driver had refused to give out any information. Ruta then said the other driver just got back into the blue-coloured vehicle and drove off.

And, while that vehicle was driving off, Ruta said he took out his cellphone and took a picture of the other car and its license plate, since the other driver did not give Ruta any information regarding his name or insurance company. [ 19 ] Ruta then said he had finished putting gas into his father’s car and paid for the gas in cash. He then said the cashier at the gas station had told him to report what had just happened with the other vehicle.

Ruta said he then went to the police station for 11 Division. [ 20 ] However, in his testimony, Ruta said could not remember the license plate number of the motor vehicle that had backed into his

father’s motor vehicle. [ 21 ] In addition, Ruta said the damage to his father’s motor vehicle was $1000, but the vehicle had not been taken in to be repaired because it had only been paint damage. He also said that his father had gone to a body shop to get an estimate for the repairs. However, Ruta said he had no bills or receipts in respect to the estimated cost to repair his father’s motor vehicle. [ 22 ] Ruta also said the other driver was a male person who was wearing jeans and a white polo shirt with a blue stripe.

In addition, Ruta said the other driver was Middle-Eastern and middle-aged, about 50 to 60 years old. He also said that there had been no other person with the other driver. [ 23 ] Moreover, Ruta said he had asked the other driver for his information, but the other driver had refused to give the information, exited the gas station, and left the scene.

Ruta also said that the other driver had just waved his hand and said, “I did not hit you.” [ 24 ] Furthermore, Ruta said the left front or driver’s side of his father’s vehicle had been damaged, but that he did not see any damage to the other vehicle. [ 25 ] In describing how the other vehicle collided into his father’s vehicle, Ruta said the other vehicle had backed up while turning to the driver’s left. [ 26 ] Ruta also said he did not call 9-1-1, since he had not been injured, but did eventually go to the police station afterwards, and had attended the police station at Erin Mills and Dundas where he spoke to a police cadet working at the front desk.

Ruta then said that a police officer named Cst. Cornea came afterwards. Ruta said he then gave Cst. Cornea the names of witnesses and the details of what had occurred. [ 27 ] More important, Ruta said he had reported the accident, not because of the damage to his father’s vehicle, but because of principle and his notion to do everything right. He further explained that he had been treated unfairly by the other driver, who he felt had taken advantage of him. [ 28 ] Ruta also said he had been issued his license to drive motor vehicles in Ontario prior to the incident at the Esso gas station on June 19, 2013. (

B) Relevant Testimony Of Cst. Ovidiu Cornea (The Officer Who Had Investigated The Incident At The Esso Gas Station And Who Laid The Two Charges Against The Defendant (

i) Summary of Cst. Cornea’s Testimony prior to entering the voir dire [ 29 ] Prior to entering into the voir dire in respect to the voluntariness and admissibility of the defendant’s utterances or statements made to Cst. Cornea, Cst. Cornea had testified that on June 19, 2013, he had been assigned that day to patrol duties in a marked cruiser. He also said he had been wearing his uniform at that time. [ 30 ] Furthermore, at 10:20 p.m., Cst. Cornea said he had received a radio call to attend the 11 Division police station in regards to speaking to a complainant.

He said he then attended at the 11 Division station and spoke with the complainant named Marek Ruta with a birthdate of [month and day removed for privacy ], 1995. Cst. Cornea then said he had been advised by the complaint about the incident that had occurred at 12:15 p.m. at the Esso gas station located at Erin Mills and Credit Valley Road in the City of Mississauga, where the complainant had alleged that a “black-coloured” Dodge Caravan vehicle had backed into the vehicle being operated by the complainant. Cst. Cornea also said the complainant had provided Cst.

Cornea with a diagram of the gas station. [ 31 ] In addition, Cst. Cornea said he had checked out the vehicle being operated by the complainant and noted that there had been paint scratches on the driver’s side front bumper.

[ 32 ] Furthermore, Cst. Cornea said the complainant had provided Cst. Cornea with the license plate number of the “black-coloured” Dodge Caravan vehicle that had allegedly backed into the vehicle being operated by the complainant. [ 33 ] Cst. Cornea also said he then attended at the Esso gas station located at Credit Valley Road and spoke with the gas station attendant about viewing the video surveillance tape of the incident involving the complainant. However, Cst. Cornea said he had been unable to check the video. [ 34 ] Then Cst.

Cornea said he attended at [ municipal address number removed for privacy ] Credit Valley Road, the address of the registered owner of the vehicle that had allegedly backed into the Ruta vehicle at the Esso gas station earlier that day. [ 35 ] When Cst. Cornea arrived at the address of the registered owner of the other vehicle involved in the alleged collision with the Ruta vehicle, Cst. Cornea said he had observed a male that had matched the description of the driver that had been provided by the complainant. In addition, Cst.

Cornea said he had observed a “black-coloured” Dodge Caravan on the driveway of that residence. He also said he had observed what had appeared to be fresh paint scratches on the rear bumper on the passenger side of that Dodge Caravan. [ 36 ] In addition, Cst. Cornea said he had a conversation with the male that matched the description of the other driver provided by the complainant. [ 37 ] At this point in Cst. Cornea’s testimony in the trial proper, a voir dire was then commenced to determine the voluntariness of any utterances or statements made by the defendant, Syedali Rizvi, to Cst. Cornea. (ii)

Summary Of Cst. Cornea’s Testimony In The Voir Dire [ 38 ] In the voir dire , Cst. Cornea testified that he had been in full uniform when he spoke with the defendant, Syedali Rizvi. Cst. Cornea also said there had been no one else present during his conversation with Syedali Rizvi, and that the conversation had taken place on the driveway of the residence located at Credit Valley Road. [ 39 ] Furthermore, Cst. Cornea said that Rizvi did not state that he did not wish to give a statement. In addition, Cst. Cornea said he did not make any threats or give any inducements to Rizvi.

He also said that Rizvi had understood English and that Rizvi had not been under the influence of drugs or alcohol. Moreover, Cst. Cornea said that Rizvi’s answers were consistent with Cornea’s questions. Cst. Cornea also said that Rizvi had not been under arrest at that point. [ 40 ] In addition, Cst. Cornea said he had summarized and had written out Rizvi’s statement. [ 41 ] Cst. Cornea also said he had not cautioned Rizvi, since Rizvi had not been under arrest and since Cst. Cornea had been still investigating the incident at that time. In addition, Cst.

Cornea said he did not have the intention to charge Rizvi at that time, since it had been Cst. Cornea’s intention to investigate and find out what had happened after the alleged collision. Furthermore, Cst. Cornea said he only provides a caution when a person is under arrest. [ 42 ] Moreover, Cst. Cornea said that Rizvi had not reviewed his statement, nor did Cst. Cornea give Rizvi an opportunity to do so. [ 43 ] After submissions were heard from the defence and the prosecution, I determined from the evidence adduced in the voir dire that Syedali Rizvi’s utterances and statements made to Cst.

Cornea were voluntary beyond a reasonable doubt. I also decided that the defendant’s statements were permitted to be entered as evidence into the trial proper. [ 44 ] At that point, Cst. Cornea repeated what Syedali Rizvi had stated to him on June 19, 2013. Cst. Cornea said that Rizvi had admitted to being the driver of the Dodge Grand Caravan involved in the incident at the Esso gas station with Marek Ruta, but that he did

not hit the Ruta vehicle and that he did not give his name and address to Marek Ruta because Ruta had wanted money from Rizvi. Furthermore, Cst. Cornea said that Rizvi had also informed Cst. Cornea that Rizvi did not believe that he had to give his name and address to Marek Ruta at that time. [ 45 ] In addition, it was decided that all the testimony given in the voir dire would apply and be permitted to be used in the trial proper without Cst. Cornea having to repeat in the trial proper the testimony he had given in the voir dire . (iii)

Summary Of Cst. Cornea’s Testimony After Re-Entering The Trial Proper [ 46 ] After re-entering the trial proper, Cst. Cornea testified that Syedali Rizvi had provided Cornea with a driver’s license as proof of identity. In addition Cst. Cornea said the driver’s license was in the name of Syedali Rizvi and the birthdate on the license was [month and day of birth removed for privacy], 1956. As a result, Cst. Cornea said he had been satisfied with the identity of Syedali Rizvi. [ 47 ] Cst. Cornea also said that on the totality of the evidence he had obtained, he had concluded that Syedali Rizvi had failed to give the required information under s. 200(1)(

c) to Marek Ruta and that Rizvi had also failed to report the accident as required under s. 199(1). [ 48 ] In addition, Cst. Cornea said he had filled out a collision report. He also said he had examined the vehicle on the defendant’s driveway and said that it had been dark in colour, but could not tell for certain if it had been black or blue in colour because he had arrived at 11:00 p.m. and it had been dark outside. He further said it had been a Dodge Caravan minivan. [ 49 ] Cst.

Cornea also said he has been employed with the Peel Regional Police since August of 2009 and has investigated more than 100 accidents. And, with respect to estimating the value of damage or the cost to repair the damage to vehicles involved in accidents, Cst. Cornea said that he himself had been personally involved in an accident three years ago when he had been rear-ended, for which he had personally dealt with. Moreover, Cst.

Cornea said that with his own personal vehicle he had obtained three quotes to repair his vehicle from autobody repair shops, but did not negotiate the price for those repairs. [ 50 ] In addition, Cst. Cornea said the damage to the defendant’s motor vehicle had been paint scratches to the rear bumper on the passenger side of the vehicle. He further said the paint scratches were fresh because they had happened recently and less than a day ago, since he did not observe dust over the scratches.

However, he said he did not count the number of scratches, nor did he record the length of those scratches. [ 51 ] In regards to the Ruta motor vehicle, Cst. Cornea said there had been damage to it that consisted of paint scratches that were located on the front bumper on the driver’s side of the vehicle. However, he also said he did not measure the length of the scratches, nor did he count the number of scratches on the Ruta vehicle. [ 52 ] Furthermore, Cst.

Cornea said he has no experience as a reconstructionist, but has experience in regards to estimating the cost of repairing the damage to motor vehicles, as he has been involved in examining lots of motor vehicles involved in collisions and accidents while working at the front desk of a self-reporting collision center. He also said he has seen many estimates from repair shops at the police station.

He further explained that on occasion people would bring in estimates and since the police are mandated to go out and look at the damage to the motor vehicle, he would note the damage, make a note of it, compare the damage with the estimate, and confirm the damage to the motor vehicle. [ 53 ] Cst. Cornea then said that based on his own personal experience the cost to repair the damage to the vehicles belonging to the defendant and to Ruta’s father, especially damage consisting of paint scratches to a motor vehicle, would be over $1000 to repair.

He then said the scratches he had observed on the defendant’s vehicle and on the complainant’s vehicle were similar in nature. [ 54 ] Furthermore, Cst. Cornea explained that in order to repair a scratch on a bumper the entire bumper would have to be painted. He also acknowledged there are hundreds of ways to fix the damage, as well as hundreds of estimates that could be obtained. He further acknowledged that he is not an expert, but had based his estimate of the value of the damage to the vehicles in question from his own knowledge and experience as a police officer.

In addition, he said he was not aware that some paint would be more expensive than other paints.

[ 55 ] In addition, Cst. Cornea said that if there had been any doubt about the value of the damage to a motor vehicle, he said he would then ask the complainant to get a certified estimate from a repair or body shop. 4. RELEVANT LAW [ 56 ] The “failing to report an accident” offence that is contained in s. 199(1) of the Highway Traffic Act , R.S.O. 1990, c.

H.8 , obligates every person in charge of a motor vehicle, who is directly or indirectly involved in an accident, where the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, to report the accident forthwith to the nearest police officer and furnish the officer with the information concerning the accident as may be required by the officer under s. 199(3) [ emphasis is mine below ]: Duty to report accident 199(1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3) .

Officer may direct person to report accident at another location 199(1.1) If, on reporting the accident to the nearest police officer under subsection (1), the person is directed by the officer to report the accident at a specified location, the person shall not furnish the officer described in subsection (1) with the information concerning the accident but shall forthwith attend at the specified location and report the accident there to a police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

Where person unable to report 199(2) Where the person is physically incapable of making a report and there is another occupant of the motor vehicle, the occupant shall make the report. [ 57 ] The threshold amount of property damage that triggers the requirement under s. 199(1) for a motorist involved in a motor vehicle accident or collision to report that accident promptly to the nearest police officer and furnish that officer with information about the accident, as required by that officer to complete an accident report under s. 199(3), is presently $1000.

In other words, the amount of apparent damage to property resulting from the accident must exceed $1000 before the reporting requirement is triggered. This $1000 amount is established by s. 11 of the General Regulation ( Highway Traffic Act ), R.R.O. 1990, O. R eg. 596: Damage to Property Accident Report 11.

For the purpose of subsection 199(1) of the Act, the prescribed amount for damage to property is $1,000. [ 58 ] Furthermore, s. 199(3) of the Highway Traffic Act imposes a legal duty on a police officer, who receives a report about an accident involving a motor vehicle, to secure from the person making the report, or by other inquiries where necessary, the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any, and any other information that may be necessary to complete a written report concerning the accident [ emphasis is mine below ]: Duty of police officer

199(3) A police officer receiving a report of an accident , as required by this section, shall secure from the person making the report, or by other inquiries where necessary, the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any, and the other information that may be necessary to complete a written report concerning the accident and shall forward the report to the Registrar within ten days of the accident. Report of police officer 199(4) The report of a police officer under subsection (3) shall be in the form that is approved by the Minister.

Regulations as to amount of property damage 199(5) The Lieutenant Governor in Council may make regulations prescribing the amount of property damage for the purposes of subsection (1). [ 59 ] In addition, the “failing to supply name and address” offence that is set out in s. 200(1) (

c) of the Highway Traffic Act , obligates a person in charge of a vehicle that is directly or indirectly involved in an accident that occurs “on a highway” to give in writing his or her name, address, driver’s licence number and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number, when such information is requested for by anyone sustaining loss or injury from that accident, by any police officer, or by any witness.

Furthermore, under s. 200(2), a motorist’s failure to comply with this request for such information subjects the person to being charged with an offence, and upon conviction, subjects the person to being sentenced to a fine of not less than $400 and not more than $2000, or to imprisonment for up to a period of six months, or to both a fine and imprisonment, and to also having their driver’s license suspended for up to a period of two years [ emphasis is mine below ]: Duty of person in charge of vehicle in case of accident 200(1) Where an accident occurs on a highway , every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall , (

a) remain at or immediately return to the scene of the accident; (

b) render all possible assistance; and (

c) upon request , give in writing to anyone sustaining loss or injury or to any police officer or to any witness his or her name, address, driver’s licence number and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number . Penalty 200(2) Every person who contravenes this

section is guilty of an offence and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition the person’s licence or permit may be suspended for a period of not more than two years .

5. ISSUES [60] The following are issues that have arisen in respect to the motion of no evidence, which need to be resolved:

(1) Is there evidence of a motor vehicle collision that had occurred between the defendant’s motor vehicle and the Ruta motorvehicle?

(2) For the alleged motor vehicle collision that had occurred on the property of the Esso gas station, did the collision for the purposesof s. 200(1)(

c) occur on a “highway”, as defined under s. 1(1) of the Highway Traffic Act?

(3) Was the defendant aware of the alleged collision between the defendant’s motor vehicle and the Ruta motor vehicle?

(4) If the alleged collision did not occur “on a highway” as required under s. 200(1)(c), is the defendant still required to supply hisname and address to the other driver involved in the alleged motor vehicle accident by necessary implication of the motorist’srequirement to report an accident under s. 199(1) or by any other provision of the Highway Traffic Act?

(5) Does Cst. Cornea have to be qualified as an expert witness before being able to give an opinion about the value of the “apparent”damage to the two motor vehicles allegedly involved in the collision at the Esso gas station?

(6) Did Cst. Cornea’s failure to record the defendant’s utterances or statements verbatim in the notes prepared by Cst. Cornea createreasonable doubt as to the voluntariness of the defendant’s utterances or statements made to Cst. Cornea?

(7) Was the defendant statutorily compelled under the Highway Traffic Act to provide a statement or information to Cst. Corneaabout the alleged motor vehicle accident involving the defendant’s motor vehicle?

(8) Did Cst. Cornea have to read the defendant his right to counsel or to provide a police caution on the right to silence to thedefendant before Cst. Cornea could obtain any information from the defendant about the alleged accident?

(9) Was Cst. Cornea still primarily obtaining information from the defendant for an accident investigation or was Cst. Corneagathering information of an offence when the defendant made the utterances or statements?

(10) Did Cst. Cornea objectively have reasonable and probable grounds to believe that the defendant had committed an offence beforehe started questioning the defendant? 6. ANALYSIS [61] After the prosecution had closed its case, the defence brought a motion of no evidence and contends that the prosecution has notestablished a prima facie case. In short, the defence argues that the prosecution has failed to adduce some evidence on each essentialelement of the offence.

The present test for determining whether the prosecution has met its evidential burden in establishing a primefacie case is now set out in the Supreme Court of Canada’s decision in R. v.

Fontaine (2004), 2004 SCC 27 , 18 C.R. (6th) 203,at para. 53, in which the Court concluded that the case against the accused cannot go to the jury or be decided by the trier of fact, “unlessthere is evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond areasonable doubt”: the case against the accused cannot go to the jury unless there is evidence in the record upon which a properly instructed jury couldrationally conclude that the accused is guilty beyond a reasonable doubt.

[62] Furthermore, in determining whether the prosecution has established a prime facie case, the evidence is not fully weighed nor arefindings of credibility made. Instead, the trier of law is merely required to ask whether there is evidence for each element of the offence,which a properly instructed jury could rationally conclude that the accused person is guilty beyond a reasonable doubt. And, as noted intheir textbook entitled, “The Law of Evidence, 6ed.” (Toronto, Ontario: Irwin Law Inc., 2011), the authors, D.M.

Paciocco and L.Stuesser, at p. 542, point out that there has been an evolution in the test used in deciding whether the prosecution has made out a primefacie case. This evolutionary change, in Paciocco and Stuesser’s view, had resulted from the Supreme Court of Canada in R. v. Fontaine,improving the classic test that had been earlier established in United States v. Sheppard (1976), (SCC), 30 C.C.C. (2d)424 (S.C.C.), by removing the ambiguity from that test through simply clarifying whether the Sheppard test had required someevaluation of the sufficiency of proof [emphasis is mine below]: In R. v.

Fontaine the Supreme Court of Canada said that there is no prima facie case "unless there is evidence in the record upon whicha properly instructed jury [can] rationally conclude that the accused is guilty beyond a reasonable doubt." This standard represents both an evolution of, and improvement on, the classic test from the United States v. Sheppard.

The ambiguously worded Sheppard testhad been understood by some as leaving no room for evaluation of the sufficiency of proof; there would be a prima facie case if therewas "any" evidence, no matter how weak, on each of the things the Crown had to prove in order to gain a conviction. Others acceptedthat the Sheppard test required some evaluation of sufficiency but that in undertaking that evaluation the judge should avoid considering the criminal standard of proof. Fontaine and another Supreme Court of Canada decision, R. v.

Arcuri have now pushed much of theuncertainty aside. [63] Now, in respect to the motion of no evidence in the case at bar, there are three principal issues that have to be decided. The firstissue to consider is whether there is evidence of a collision that had occurred between the defendant’s motor vehicle and the Ruta motorvehicle.

If there is evidence of such a collision, then the two other principal issues will have to be resolved. [64] For the second issue, the question is whether there has been evidence adduced by the prosecution that the location of the allegedcollision between the defendant’s vehicle and the Ruta vehicle had occurred “on a highway”, as defined under s. 1(1) of the HighwayTraffic Act, for the charge of “failing to supply name and address” laid under s. 200(1)(c). The alleged collision supposedly occurred onthe property of an Esso gas station.

If there is no evidence that the alleged collision had occurred “on a highway” within the meaning ofs. 1(1) and there is no other requirement under s. 200(1)(

c) by implication or otherwise, which requires the defendant to supply his nameand address to the other driver involved in that alleged motor vehicle collision with the defendant, then the defendant’s motion of noevidence in respect to the charge under s. 200(1)(

c) will be granted and the charge for “failing to supply name and address” will bedismissed against the defendant. [65] And, for the third issue, the question is whether the prosecution has adduced evidence that the property damage resulting fromthe alleged collision between the defendant’s vehicle and the Ruta vehicle exceeds the value of $1000, which would then trigger thedefendant’s legal obligation to report the alleged accident under s. 199(1) of the Highway Traffic Act.

On this issue, the defencecontends that if there were a collision between the two vehicles in question, then the prosecution has failed to adduce evidence that therehad been property damage over $1000, since Cst. Cornea had not been qualified as an expert witness in respect to determining themonetary value of damage to motor vehicles involved in accidents. In other words, because Cst. Cornea had not been qualified as anexpert, the defence contends that Cst.

Cornea’s opinion on the value of the damage to either of the two vehicles in question should carryno weight, nor be considered to be evidence of property damage exceeding $1000. Consequently, if Cst.

Cornea’s opinion as to thevalue of the property damage is inadmissible, and if there is no other evidence that the property damage resulting from the allegedcollision was worth more than $1000, then the prosecution would be unable to prove that the defendant had been legally obligated toreport the alleged accident forthwith to the nearest police officer, which would mean that the defence motion of no evidence would alsosucceed for the charge of “failing to an report accident” under s. 199(1) of the Highway Traffic Act. [66] Lastly, even though I had already determined in the voir dire that the prosecution had proven beyond a reasonable doubt that thedefendant’s utterances or statements, which included inculpatory and exculpatory statements, were voluntarily given to Cst.

Cornea onJune 19, 2013, it would be nevertheless important and beneficial to both parties for me to explain and expand upon my ruling --especially when the defendant may have also been statutorily compelled to report the alleged accident that supposedly occurred betweenthe defendant’s vehicle and the Ruta vehicle and to also provide information to Cst. Cornea that Cst. Cornea would have required tocomplete his investigation of the accident and to prepare an accident report pursuant to s. 199(3) of the Highway Traffic Act.

On thequestion of voluntariness, the defence had argued that the defendant’s statements were not voluntary because the defendant had not beencautioned by Cst. Cornea before Cst. Cornea questioned the defendant, and as a consequence of Cst. Cornea’s omission, contends thatthe defendant when providing the statements had lacked an operating mind, as described in R. v. Oickle, [2002] S.C.J. No. 38 (QL)(S.C.C.). Furthermore, the defence also submits that since the defendant’s statement had not been recorded verbatim by Cst. Cornea, butin

summary form, then Cst. Cornea’s failure to record the defendant’s statements verbatim would raise a reasonable doubt about theirvoluntariness. (

A) IS THERE EVIDENCE ADDUCED BY THE PROSECUTION THAT THERE HAD BEEN A COLLISION BETWEENTHE DEFENDANT’S MOTOR VEHICLE AND THE RUTA MOTOR VEHICLE?

[67] In regards to the first issue on whether there is evidence of a collision, Marek Ruta had testified that a blue-coloured Dodge GrandCaravan had backed into his father’s vehicle, which also happened to be a Dodge Grand Caravan. In addition, Ruta said that while theblue-coloured vehicle had been backing up and while moving towards its left, it had collided with the Ruta vehicle and had caused paintdamage to the front bumper on the driver’s side of the Ruta vehicle. Furthermore, Cst.

Cornea testified that he had observed freshscratches to the paint finish of the driver’s side of the front bumper of the Ruta vehicle and fresh scratches to the paint finish of the rearbumper on the passenger side of the defendant’s Dodge Grand Caravan motor vehicle while it had been parked on the driveway of thedefendant’s residence, within 12 hours of the alleged collision occurring at the Esso gas station. [68] On the other hand, there is also evidence given through the testimony of Marek Ruta and through Cst. Cornea that the defendanthad stated to Marek Ruta and to Cst.

Cornea, respectively, that the defendant’s vehicle did not collide with the Ruta vehicle and that thedefendant did not hit the Ruta vehicle. (

i) Exculpatory statements made by the defendant out of court [69] For those exculpatory statements that had been made by the defendant to Cst.

Cornea and to Marek Ruta out of court and thenrepeated by them at the trial, that there had been no collision between the defendant’s vehicle and the Ruta vehicle, that the defendanthad not provided any information to the other driver because the other driver had wanted money from the defendant, and that thedefendant had also believed at the time that he did not have to provide any information to the other driver, are specifically not receivableas evidence for the truth of its contents, since they are self-serving statements made by the defendant outside of court.

The general rulewhich applies to those exculpatory statements is that exculpatory statements made by the defendant outside of court and entered throughother witnesses is not receivable as evidence in favour of the defendant, since it is an unsworn statement, self-serving, and not subject tocross-examination. See para. 24 in R. v. Simpson, (SCC), [1988] S.C.J.

No. 4 (QL) (S.C.C.) [emphasis is mine below]: As a general rule, the statements of an accused person made outside court -- subject to a finding of voluntariness where the statement ismade to one in authority -- are receivable in evidence against him but not for him. This rule is based on the sound proposition that anaccused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses andthus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination.

It is, however, not aninflexible rule, and in proper circumstances such statements may be admissible; for example, where they are relevant to show the state ofmind of an accused at a given time or to rebut the suggestion of recent fabrication of a defence. … [70] Ergo, there is evidence of a collision between the defendant’s vehicle and the Ruta vehicle from Marek Ruta’s testimony that ablue-coloured Dodge Grand Caravan, identified as the defendant’s motor vehicle through a license plate number photographed by Rutaand provided to Cst.

Cornea, had backed into the Ruta vehicle causing more than $1000 of damage to the Ruta vehicle, along with thetestimony of Cst. Cornea in which Cst. Cornea had stated that he had observed fresh paint scratches on the rear bumper of thedefendant’s vehicle and on the front bumper of the Ruta vehicles, which respective damage had appeared to Cst.

Cornea to be more than$1000 worth of damage to each of the vehicles. [71] As a consequence, since there is evidence of a collision, I will now have to consider and resolve the other two issues of whetherthere is any evidence that the alleged accident, which had supposedly occurred on the property of the Esso gas station, had occurred “ona highway”, as defined under s. 1(1) of the Highway Traffic Act; and whether there is evidence that the value of the property damagethat had occurred and resulted from the alleged accident had exceeded $1000, since the admissibility of Cst.

Cornea’s testimony is beingchallenged on the ground that Cst. Cornea had not been qualified as an expert witness to give an opinion about the value of damage thatoccurs to vehicles involved in accidents. (

B) IS THERE EVIDENCE ADDUCED BY THE PROSECUTION THAT THE COLLISION BETWEEN THEDEFENDANT’S MOTOR VEHICLE AND THE RUTA MOTOR VEHICLE HAD OCCURRED “ON A HIGHWAY”? [72] Before accepting the submission from both the defence and prosecution that s. 200(1)(

c) does not apply to the defendant, for thereason that the accident that had supposedly occurred on the property of the Esso gas station had not been “on a highway”, a properreview of the Court of Appeal for Ontario’s decision in R. v. Hajivasilis, 2013 ONCA 27 , [2013] O.J. No. 253 (QL), 114 O.R.(3d) 337 (O.C.A.) and the definition of “highway” set out in s. 1(1) of the Highway Traffic Act, has to be undertaken, along withconsidering the evidence of the physical layout of the Esso gas station, in order to determine if there is evidence in the record thatindicates whether the area where the alleged accident had occurred had been “on a highway”.

[73] From Marek Ruta’s testimony, the collision between the defendant’s motor vehicle and the Ruta motor vehicle had supposedlyoccurred in the property of the Esso gas station located at Erin Mills Parkway and Credit Valley Road in the City of Mississauga, nearthe gas pumps where the Ruta motor vehicle was stopped and being gassed up by Ruta. [74] However, the defence submits that the legal requirement for the defendant to provide his name and address to another driverunder s. 200(1)(

c) does not apply to the defendant, nor does s. 200(1)(

c) apply to any collision that occurs on the property of thatparticular Esso gas station, since it is not a “highway”. [75] By law, where a provision of Ontario’s Highway Traffic Act specifically and expressly refers to a “highway”, then that specificprovision only applies to events that occur on a “highway”, as defined under s. 1(1) of the Highway Traffic Act; but where the provisionis silent and does not refer to an event having to occur on a “highway” or in respect to a “highway”, then that particular provision doesnot require the event to occur on a highway before it can legally apply: R. v.

Hajivasilis, 2013 ONCA 27 , [2013] O.J. No. 253(QL), 114 O.R. (3d) 337 (O.C.A.), at para. 4 [emphasis is mine below]: I agree with the position advanced by the appellant. I would hold that the obiter in Shah limiting the operation of the "entire HTA" to"highways" is wrong and should not be followed. Many provisions of the HTA are by their terms limited to "highways". Other provisions,however, are not so limited. Nothing in the overall structure of the HTA or its purpose compels the reading of the word "highway" intosections in which it does not appear.

Section 199 is one such section.

I would hold that the reporting requirement in s. 199 generallyapplies even if the accident does not occur on a "highway" as defined in the HTA. [76] Therefore, the operation of the entire Highway Traffic Act is not limited to only events that occur on highways, but theapplication of a specific provision of the Highway Traffic Act is only limited to a highway when that provision expressly contains areference to the event in question having to occur on a “highway” or in respect to a “highway”. [77] Moreover, as it applies directly to the case at bar, the Court of Appeal held in R. v.

Hajivasilis, at para. 27, that the requirement toreport an accident under s. 199(1) of the Highway Traffic Act is not restricted to events that only occur on a highway within the meaningof s. 1(1) of the Act, but includes areas that are not on a “highway”, since the application of s. 199(1) is not limited to events that occuronly on a highway [emphasis is mine below]: A plain reading of s. 199(1) reveals no reference to the word "highway" or any word that incorporates the definition of "highway". Thereporting obligation in s. 199(1) is placed on "every person in charge of a motor vehicle".

If the legislature has defined certain terms inthe definition

section of legislation, but chooses to use other undefined terms in a particular section, the interpretative exercise muststrive to give some meaning to the choice made by the legislature. In s. 199, the legislature chose to use the phrase, "every person incharge of a motor vehicle", a more expansive phrase than the word "driver".

This choice suggests a reporting requirement that is notlimited to persons who fall within the definition of the word "driver", that is, persons who drive a vehicle on a "highway". [78] A “highway” for the purposes of the Highway Traffic Act is specifically defined in s. 1(1) of that Act and its meaning includes acommon and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intendedfor or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof [emphasis ismine below]: 1(1) In this Act, … “highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any partof which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property linesthereof; (“voie publique”) [79] In addition, at para. 10 in R. v.

Hajivasilis, the Court of Appeal explained that the definition of “highway” contained in s. 1(1) ofthe Highway Traffic Act, which contains the phrase "intended for or used by the general public for the passage of vehicles", explicitlylimits the meaning of "highway", so that where a vehicle is being driven on property to which the general public does not have access, orif that access is for a limited purpose other than passage, such as for parking motor vehicles, then the property or place in question willnot fall within the meaning of a "highway" for the purposes of the Highway Traffic Act [emphasis is mine below]:

The phrase "intended for or used by the general public for the passage of vehicles" limits the meaning of "highway". If a vehicle is beingdriven on property to which the general public does not have access or if that access is for a limited purpose other than passage (such asparking), the property will not fall within the meaning of "highway". Most privately owned parking lots are not "highways" as defined inthe HTA: see R. v. Mansour, (SCC), [1979] 2 S.C.R. 916; Gill v. Elwood, (ON CA), [1970] 2 O.R. 59(C.A.); and Sked v. Henry (1991), 28 M.V.R. (2d) 234 (Ont. Gen. Div.).

It is accepted that the parking lot where the respondent allegedlystruck the parked vehicle does not fall within the meaning of "highway" in the HTA. [80] Furthermore, s. 1.1 of the Highway Traffic Act permits the Lieutenant Governor in Council to pass a regulation designating theapplicability of the Highway Traffic Act to places that are not defined as a “highway” under the Act [emphasis is mine below]: Application of Act to places other than highways 1.1 The Lieutenant Governor in Council may make regulations providing that this Act or any provision of this Act or of a regulationapplies to a specified place or class of place that is not a highway. [81] However, there has been no regulation that has been passed by the Lieutenant Governor in Council designating that the HighwayTraffic Act applies specifically to gas station properties. [82] As to whether gas stations are generally considered to be a highway, the British Columbia Supreme Court in Lawson v.

Watts(1957), (BC SC), 7 D.L.R. (2d) 758 (B.C.S.C.), at para 20, held the gas station in that case had not been a highwayunder the statutory definition of the governing statute and adopted the reasoning in Woodbridge v. Bragg (1956), (BCSC), 5 D.L.R. (2d) 413 (B.C.S.C.), in which it had been held that the property of a gas station, a private business premise, is not ahighway [emphasis is mine below]: Following the hearing, counsel for the husband defendant directed my attention and that of the solicitor for the plaintiff to a decision ofmy brother Whittaker in Woodbridge v.

Bragg, an unreported decision referred to in "The Advocate", September-October, 1956, Volume14,

Part 5, page 211, which decision had just come to his notice and he felt it was his duty to bring it to the attention of the Court and ofplaintiff's counsel. In this case Whittaker J., in his written reasons for judgment, stated: "The liability imposed by said s. 81(1) is a vicarious liability. Apart from the statute there would be no liability. The Legislatureevidently considered it reasonable that when the owner entrusts his car to someone else knowing that that other person intends to operateit on a highway, the owner should be held responsible for resultant damage, there being well-known risks attendant upon the operationof a car in highway traffic. But there is nothing in the

section or in the

definitions of 'highway', to indicate that it was intended to saddlethe owner with the consequences of such unusual risks as might be incurred in driving the car from one part of a service-station lot toanother part without encroaching on a highway. If that had been the intention one would expect to find the words 'on any highway orother public place'. "The only words upon which an argument in favour of the plaintiff could be founded are the words 'or right-of-way' contained in said s. 2of the Motor-vehicle Act.

No doubt drivers entering the service-station for the purpose of having their cars serviced have a right-of-wayover the service-station property for that limited purpose; but I think it is clear from the following words 'designed or intended for, orused by the general public for the passage of vehicles', that private business premises were intended to be excluded." [83] However, just because a motor vehicle accident occurs on a gas station property does not necessarily exclude all gas stations or allprivate property from being found to be a highway within the meaning of s. 1(1) of the Highway Traffic Act, especially where the area ofthe private property in question is clearly designated or marked to be primarily used for the passage of motor vehicles.

This reasoningwas accepted in R. v. Wilson, (AB KB), [1960] A.J. No. 30 (QL), 37 W.W.R. 670, at paras. 5 and 6, where the AlbertaDistrict Court in deciding whether the Alberta statute, The Vehicles and Highways Traffic Act, should apply to an area in a parking lotwhere a motor vehicle collision had occurred and whether that particular area had been a public highway, had first considered the findingin Lawson v.

Watts (1957), (BC SC), 7 D.L.R. (2d) 758 (B.C.S.C.), but unlike the gas station in that case that wasdetermined not to be a highway, had held that an area on private property that had been clearly marked into separate lanes, so that thelanes would be primarily used for the passage of motor vehicles was indeed a highway for the purpose of that Act [emphasis is minebelow]: I note the British Columbia case to which counsel for the appellant has referred, Lawson v. Watts (1957) (BC SC), 7

DLR (2d) 758 , and I would merely note that it refers to an area which is described as a service station area-way. I doubt gravely whether a service station area could be compared with the parking lot in question. I have never seen a service station area laid out in lanes, well- marked lanes, for the passage of cars, and I presume the service station area in the case cited was not so laid out. The decision of Lett, C.J.S.C., even if binding on me, could scarcely be taken as applicable to an area of the kind with which we are dealing here.

I have no hesitation at all in finding as a fact that the two lanes in question, one, the lane from which Mr. Wilson's car, proceeding in an easterly direction emerged, and the other, a north-south lane in which Mrs. Stevens' car was travelling at the time of the impact, fall within the definition of "highway" as contained in sec. 2(

f) of the Act . I have no hesitation in holding further that the square formed by the prolongation of boundary lines which has been referred to extensively in the evidence, was in fact an intersection. [ 84 ] As such, not all areas of private property are necessarily to be excluded from being found to be a highway for the purposes of Ontario’s Highway Traffic Act , especially where a specific area of the private property in question is primarily used for the passage of motor vehicles by the general public and such primary use can be ascertained.

In particular, there may exist gas stations that are located in large shopping centers or on other private properties that may contain specifically marked lanes or clearly identified areas that are to be primarily used for the passage of motor vehicles by the general public. (

i) Is there evidence in the record that the alleged collision had occurred in area of the Esso gas station property that is clearly set apart from other areas of the gas station property, so that the specific area in question is primarily used for the passage of motor vehicles by the general public? [ 85 ] Although gas stations are private property premises, in which motorists are permitted to enter and drive their motor vehicles onto the property, and then through the property, for the limited purpose of purchasing gasoline and other products, gas stations are not generally considered to be highways, unless there is evidence that a part of the gas station has been specifically marked or set apart to be primarily used for the passage of motor vehicles by the general public. [ 86 ] However, the evidence adduced in the case at bar does not indicate that the Esso gas station where the alleged accident had occurred had been clearly marked with lanes or clearly set apart as an area primarily for the passage of motor vehicles by the general public, so as to be a “highway”.

Specifically, there is no evidence adduced of specific pathways for motor vehicles travelling on that Esso gas station property that had been clearly or specifically marked with painted lines or other markings that would designate lanes or set apart an area primarily for the passage of motor vehicles. [ 87 ] Furthermore, it should also be noted that there is no requirement in s. 199(1) in which a motorist is required to report an accident to the nearest police officer, to also supply their name and address to the other driver involved in the accident, nor is there any other provision in the Highway Traffic Act or under a regulation that directs the defendant to provide his name and address to Marek Ruta, the other driver involved in the alleged accident, as required under s. 200(1) (c).

As such, the defence succeeds on the motion of no evidence in respect to the "failing to supply name and address" charge under s. 200(1) (c), as there is no evidence that the alleged accident had occurred on a “highway” within the meaning of s. 1(1) , or that the defendant by implication or by any other provision of the Highway Traffic Act had been legally obligated to provide his name and address to the other driver under s. 200(1) (c). Accordingly, this particular charge will be dismissed against the defendant. (

C) IS THERE EVIDENCE ADDUCED BY THE PROSECUTION THAT THERE IS DAMAGE TO PROPERTY RESULTING FROM THE ALLEGED MOTOR VEHICLE ACCIDENT BETWEEN THE DEFENDANT’S MOTOR VEHICLE AND THE RUTA MOTOR VEHICLE THAT EXCEEDS $1000? [ 88 ] Section 199(1) of the Highway Traffic Act requires that a motorist involved in a motor vehicle accident that results “ in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation”, which is currently set at $1000, report the accident forthwith to the nearest police officer.

First of all, there has been no evidence adduced of any personal injuries that resulted from the alleged collision at the Esso gas station to the defendant, to Marek Ruta, to Marek Ruta’s brother, or to anyone else that would have triggered the defendant’s reporting requirement. [ 89 ] And, whether there is any evidence of property damage resulting from the alleged accident that apparently exceeds the value of $1000, Marek Ruta had testified that a blue-coloured Dodge Grand Caravan motor vehicle had backed into his father’s vehicle and had caused paint damage to the front bumper on the driver’s side of his father’s vehicle that had caused $1000 worth of damage, which he had learned from his father who had gone to an autobody shop for an estimate.

However, Ruta also said that he did not have any receipts or written estimates from an autobody shop in respect to what it would cost to repair the damage to the Ruta vehicle.

[90] In addition, Cst. Cornea testified that he had observed fresh scratches to the paint finish of the front driver’s side bumper of theRuta vehicle and fresh scratches to the paint finish of the rear bumper on the passenger side of the defendant’s Dodge Grand Caravanmotor vehicle while it had been parked on the driveway of the defendant’s residence. Cst. Cornea also said that the damage to thedefendant’s vehicle and to the Ruta vehicle were similar in nature. Furthermore, Cst.

Cornea opined that the damage to the defendant’svehicle from the alleged collision had exceeded $1000 and that the damage to the Ruta vehicle had also exceeded $1000. [91] And, to determine whether the threshold amount of $1000 has been met, the value of the alleged property damage would becalculated by totalling up all of the property damage that would have resulted from the accident, which would include the allegeddamage to the defendant’s vehicle, to the Ruta vehicle, and to any other property. [92] Ergo, based on Marek Ruta’s and Cst.

Cornea’s testimony, there is evidence in the record of a collision occurring between thedefendant’s vehicle and the Ruta vehicle, which resulted in property damage that apparently exceeded the value of $1000. (

i) Does Cst. Cornea have to be qualified as an expert witness on the subject of estimating the cost of repairing damage to motorvehicles involved in collisions before Cst. Cornea’s estimation of the value of the damage to the motor vehicles involved in thealleged collision at the Esso gas station can be considered to be evidence of property damage that exceeds the amount of $1000? [93] However, despite Marek Ruta’s and Cst.

Cornea’s testimony on the value of the damage to the Ruta vehicle and to thedefendant’s vehicle that would have exceeded the prescribed amount of $1000, the defence nevertheless submits that there is noevidence of damage to either the defendant’s motor vehicle or to the Ruta motor vehicle, since Cst. Cornea has not been qualified as anexpert witness in estimating the monetary value of damage to motor vehicles involved in a collision. Hence, does Cst. Cornea have to bequalified as an expert before Cst. Cornea’s testimony in regards to the value of the damage that Cst.

Cornea had observed on thedefendant’s motor vehicle and on the Ruta motor vehicle can be accepted as evidence of property damage that would apparently exceedthe value of $1000? In respect to the motion of no evidence, evidence on the value of the damage to either vehicle is critical, since thethreshold amount of property damage that triggers the defendant’ legal obligation to report the alleged accident forthwith to the nearestpolice officer pursuant to s. 199(1) has to exceed the prescribed amount of $1000. [94] In addition, Cst.

Cornea had testified that he is not an expert on valuing the damage to motor vehicles involved in accidents, nordoes he have experience as an accident reconstructionsist. [95] As for the reception of Cst. Cornea’s opinion on the value of the damage he had observed, the traditional exclusionary rule thatopinion evidence from a lay person is generally not admissible has been modified by the Supreme Court of Canada in Graat v. R. (1982), (SCC), 31 C.R. (3d) 289 (S.C.C.).

In that case, Dickson J. held at p. 310, that lay witnesses can present theirobservations as opinions where they "are merely giving a compendious statement of facts that are too subtle and too complicated to benarrated separately and distinctly." [96] Moreover, at pp. 183-184 of their textbook, “The Law of Evidence, 6ed.”, Paciocco and Stuesser intimated that the generalexclusionary rule which disallowed opinion evidence of lay witnesses is often not applied since the distinction between fact and opinionis not always clear. Furthermore, they also noted that the Supreme Court of Canada in Graat v.

R. had adopted a more general, sensible,and less technical approach for dealing with the admissibility of lay opinion evidence, where such evidence would be admissible on thebasis that lay witnesses can present their observations as opinions, in which compendious statements of fact made by the lay witnessincorporates a myriad of subtle characteristics or attributes that have been observed and digested by that witness, which could not beotherwise communicated effectively without resort to conclusions [emphasis is mine below]: Even for lay witnesses, the general exclusionary rule disallowing opinion evidence is often not applied.

This is because the starkdichotomy between fact and opinion that is presupposed by the general rule is unrealistic. As Dickson J. said in Graat v. R.: “Except forthe sake of convenience there is little, if any, virtue in any distinction resting on the tenuous and frequently false antithesis between ‘fact’and ‘opinion.’ The line between ‘fact’ and ‘opinion’ is not clear.” For example, when a witness identifies the driver of the vehicle bypointing her out in court, he is stating as a fact that she is the driver.

Yet, in a real sense he is offering his opinion that the person incourt is the same person who was driving the vehicle. Numerous apparent statements of fact are arguably no more than expressions ofopinion; things like age, height, weight, the identification of people or things, the speed of vehicles, distance, whether someone is happyor angry, all call for judgment to be made about what has been observed and for conclusions to be drawn. Obviously, it is common forwitnesses to testify about such things. The fact is that lay witnesses do offer opinions.

We once proceeded on the basis that there was a general exclusionary rule prohibiting lay witnesses from testifying about their opinions, to which there were numerous particular exceptions allowing for proof of the kinds of things that have just been described . In Graat the Supreme Court of Canada adopted a more general, sensible, and less technical approach . Graat was charged with impaired driving, and the trial judge had permitted a series of witnesses to offer opinion evidence about whether the ability of Graat to drive a motor vehicle was impaired.

Dickson J. held that it was appropriate to allow such testimony, but not because the degree of impairment of an individual is one of those established, exceptional cases where laypersons can offer their opinion.

Rather, Dickson J. decided that the evidence was admissible on the more general basis that lay witnesses can present their observations as opinions where they “are merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly .” To understand this distinction, attempt to describe the difference between a vehicle travelling at forty kilometres an hour and one travelling at seventy kilometres an hour without expressing what will clearly be conclusions that capture the series of indescribable and internalized observations that enable most people to provide fair estimates of speed.

Or, consider the recognition of faces.

The compendious statement of fact, “That is Aunt Sally,” subsumes myriad subtle characteristics observed and digested by the witness, attributes that could not be communicated effectively without resort to conclusions . [ 97 ] In addition, at p. 183 of their textbook (6 th ed.), Paciocco and Stuesser outlined four situations when lay witnesses may present their relevant observations in the form of opinions [ emphasis is mine below ]: (1) they are in a better position than the trier of fact to form the conclusion; (2) the conclusion is one that persons of ordinary experience are able to make ; (3) the witness, although not expert, has the experiential capacity to make the conclusion ; and (4) the opinions being expressed are merely a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to conclusions. [ 98 ] Furthermore, in their discussion on the admissibility of opinion evidence based on “experiential capacity”, Paciocco and Stuesser at pp. 181-182 in their textbook (6 th ed.) made it quite clear that when the “experiential capacity” needed is only that of ordinary experience, then the lay opinion evidence rule can be used, but when the opinion offered requires special knowledge, training, or experience that goes beyond that of ordinary persons, then the expert opinion rules should apply.

Paciocco and Stuesser also noted that the rules related to expert evidence do not apply where a witness, even one having special training or education, simply describes factual observations that can be interpreted by lay persons [ emphasis is mine below ]: In our system of trial, it is the neutral, impartial trier of fact who is to determine what inferences to draw from facts. “ A basic ten

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