R. v. Anene, 2016 ONCJ 115

CITATION: R. v. Anene , 2016 ONCJ 115 Ontario Court of Justice Toronto, Ontario HER MAJESTY THE QUEEN v PHILIP ANENE Before: J. Opalinski J.P. REASONS FOR JUDGMENT Heard: January 8, 2016 Delivered: March 2, 2016 A. Cahill for the Prosecution Defendant Self Represented CHARGE: 1 . Philip Anene, is charged on the 2 nd day of October, 2014 at 6:10 pm., eastbound at 130 Howard Park Avenue, in the City of Toronto, with the offence of careless driving, contrary to

section 130 of the Highway Traffic Act, R.S.O. 1990 c. H.8 . 2 .

Section 130 of the Highway Traffic Act , supra, provides that: Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and upon 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 his or her licence or permit may be suspended for a period of not more than two years. ISSUE: 3 .

The issue before the court is: whether or not the defendant’s conduct and manner of driving was of such a nature that constitutes careless driving. ARGUMENT FOR THE PROSECUTION: 4 . The prosecution submits that the prosecution’s evidence makes out the elements of the offence that are required to render a conviction of the defendant, beyond a reasonable doubt. The prosecution contends that the defendant sped off and struck the witness’ dog, which constitutes driving without due care and attention. ARGUMENT OF THE DEFENDANT :

5 . The defendant has made an argument that the prosecution must prove that the defendant was driving without due care and consideration for others on the road and that the evidence adduced by the prosecution does not prove the charge beyond a reasonable doubt. EVIDENCE FOR THE PROSECUTION: 6 . The court heard evidence from Dr. Shelagh McCartney and Toronto Police Officer Kuznetsov. 7 . The evidence of Ms. McCartney may be summarized as follows: (

a) On October 2, 2014 at approximately 6:10 pm, Ms. McCartney was on the south side of Howard Park Avenue at the cross walk about to cross the street, across from 130 Howard Park Avenue. The crosswalk is at the intersection of Sunnyside Avenue and Howard Park Avenue. She had with her a dog and her older daughter who was 3 years of age at the time. (

b) Above the crosswalk there are orange lights which when illuminated and flashing entitle pedestrians to cross the road and require drivers approaching the crosswalk to stop until pedestrians have safely crossed the road. When the buttons, which are located on polls at each end of the crosswalk are pressed, the lights are illuminated. (

c) Ms. McCartney pressed the button and began to walk across the crosswalk between the lines. (

d) A taxi cab motor vehicle driven by the defendant approached the crosswalk and stopped. As Ms. McCartney started to walk across the crosswalk this stopped vehicle began honking. She shrugged her shoulders as she did not know why the taxi was honking at her. The taxi was travelling eastbound, had stopped and was to her left. (

e) She was only 1.5 meters or one lane of a car into the crosswalk. As a result of the defendant’s honking at her and not understanding why he had done so, she went up to his driver’s side window. (

f) He became angry and sped off hitting her stomach as she was leaning into the car and clipping the dog, but not her daughter. She then clarified that the dog who was on a leash beside her was hit by the defenant’s front left tire. (

g) He then pulled over and the person in the taxi got out. Ms. McCartney was so upset that she went to her home. She was stunned but not injured, although she was pregnant. She prepared a statement on line and the police came to visit that evening or the next day. (

h) In cross-examination, she indicated that the dog was on a leash, her daughter was not crying and she did not take the dog to the vet until the next day. There was nothing wrong with her dog and she did not have any record of visiting the vet. She herself did not go to the doctor. (

i) She also indicated in the statement she provided to the police, that she had been pushed back by the movement of the defendant’s vehicle, because she was leaning inside the vehicle. The impact did not injure her, but pulled her back. Luckily she managed to pull her daughter behind her. The concern she expressed was for her dog who was hit. 8 . The evidence of Officer Kuznetsov may be summarized as follows: (

a) The traffic complaint reached him on October 9, 2014 although the incident was reported to Police services on October 3rd. He attended on October 9, 2014 at the complainant’s home to investigate the alleged incident. (

b) He took a statement from the complainant whereby she stated that she was crossing with her child going northbound across Howard Park Avenue from Sunnyside Avenue at the crosswalk. The defendant was travelling eastbound on Howard Park Avenue. She was pregnant but was not hit herself, however, there was minor contact with the dog. (

c) There is a crosswalk at Howard Park Avenue and Sunnyside Avenue. Sunnyside Avenue has two lanes of traffic and ends at Howard Park Avenue with one lane running southbound and the other northbound. Howard Park Avenue has two lanes of traffic with one lane running eastbound and the other westbound. There is a crosswalk with white painted lines crossing Howard Park Avenue. (

d) The officer attended on October 16 th to talk to the defendant and get information, but the defendant refused to provide a written statement. The officer never inspected the vehicle.

EVIDENCE FOR THE DEFENCE: 9. The defendant’s evidence may be summarized as follows: (

a) On October 2, 2014 at about 6 pm, the defendant was dispatched by Beck Taxi to take someone by the name of Angela toSunnyside Avenue and Howard Park Avenue. He was asked if he had a debit card machine. He picked up his fare at 108 GlenlakeAvenue and travelled eastbound on Howard Park Avenue. Seeing the lights flashing at the cross walk, he stopped at the crosswalk. (

b) He observed the complainant walk across Howard Park Avenue at the crosswalk to the other side being the north side of thecrosswalk. (

c) She was completely out of the crosswalk when her dog ran back onto the road so the defendant started to honk to bring her attentionto the fact that her dog had gone back into the crosswalk and onto the road. That was why he was honking at her. (

d) She turned around and was yelling profanities at the defendant. She also yelled that the honking irritated her. (

e) The defendant stated that he never hit the dog or the complainant. There was no accident at all and the complainant never came tohis window nor did she go back into the intersection. (

f) He only put the vehicle in motion when the complainant was walking to her home so he could drop off his fare. THE LAW: 10. The defendant is charged with the offence of careless driving contrary to

section 130 of the Highway Traffic Act supra. 11. It is incumbent upon the court to first make a determination as to what category of offences the offence of careless driving fallsinto. While offences may be categorized as absolute liability, strict liability and mens rea offences as set out in R. v. City of Sault Ste.Marie, (SCC), 40 C.C.C. (2d) 353, this court finds that the offence of careless driving is a strict liability offence and assuch the defence of due diligence is open to be proven by the defendant on a balance of probabilities. 12. However, as the court succinctly stated in R. v. Persaud [2015] O.J.

No. 3296, the prosecution must prove beyond a reasonabledoubt that the defendant committed the prohibited action. Once this is done, then the defendant can raise a due diligence defence and theburden shifts to the defendant claiming this defence to prove it on a balance of probabilities. (at para 11) 13. What the court needs to first ask in determining whether or not the prosecution has proven its case beyond a reasonable doubt is:what are the elements of the offence? 14.

The prosecution must prove beyond a reasonable doubt that: firstly, the defendant was driving a motor vehicle on a highway andsecondly, did so without due care and attention or without reasonable consideration for other persons using the highway. 15. Once the prosecution is successful, then the defence of due diligence is open to the defendant to prove on a balance of probabilities. 16. The decision of R. v.

Beaucamp (ON CA), [1953] O.R. 422 sets out the principle in law with regard to carelessdriving. “The factual standard is constantly shifting one, depending on the road, visibility, weather and traffic conditions that exist ormay reasonably be expected, and any other conditions that ordinary drivers would take into consideration. It is an objective standard notrelated to the degree of proficiency or experience of any particular accused.” However, the legal standard remains the same in that it iswhat the ‘average careful and prudent driver in like circumstances would have done’.

It is not the standard of perfection. 17. The court in R. v. Smith [2002] O.J. 3270 stated at paragraph 5 that ‘the standard of driving behaviour does not change as conditionschange. At all times a driver must conduct himself/herself with a care and attention necessary to proceed safely on our highways havingregard to the circumstances present’.

18 . In R. v. Globoki (1991) 26 M.V.R. (2d) 179 (Ont. Prov. Ct.) the court held that where an accident has occurred, the fact that serious injury or death has resulted is not, except in unusual cases, relevant to an assessment of whether there has been a departure from the standard case which would justify a finding of careless driving. ANALYSIS: 19 . The question that this court needs to ask is: has the prosecution proven beyond a reasonable doubt that the defendant was driving a motor vehicle on a highway without due care and attention or without reasonable consideration for other persons using the highway?

What are the circumstances in this particular situation that would characterize the defendant’s driving as without due care and attention or without having reasonable consideration for others using the highway? 20 . The court finds that the defendant was travelling on a highway. He was travelling eastbound on Howard Park Avenue and stopped for the complainant who was crossing at the crosswalk going from south to north across Howard Park Avenue. 21 . What manner of driving is of such a nature and degree to constitute careless driving? 22 .

The Defendant testified that he stopped for the flashing lights at the cross walk. It is his evidence that Ms. McCartney was crossing the crosswalk on Howard Park Avenue at Sunnyside Avenue with her daughter who was screaming and her dog who was not on a leash. She went from the south to the north side of Howard Park Avenue and had completely crossed the road when her dog ran into the road. It was for this reason that the defendant honked at Ms. McCartney in an attempt to get her attention. At no time did Ms. McCartney approach the Defendant’s vehicle.

On the contrary, she proceeded to yell at the defendant making reference to his origin while scolding him for honking in her neighbourhood. The defendant proceeded only after Ms. McCarney had commenced walking to her home. 23 . Ms. McCartney’s evidence corroborates the evidence of the defendant that she was crossing Howard Park Avenue at the crosswalk and that she was walking from the south to the north side of the road.

However, her evidence differs from that of the defendant in that she states that she was no more than 1.5 meters or one car lane into the roadway when she heard the defendant honking at her and did not understand why he was doing that. For that reason she went up to the defendant’s driver’s side window and leaned into the window. The defendant proceeded to move forward, accelerating his vehicle in such a manner and speed as to have bumped her stomach and hit her dog.

The only reason he did not hit her child was because the child was behind her, which would have placed her daughter, if not over, then near the lane of traffic for oncoming traffic. 24 . The officer did not witness the incident and did not investigate the incident until October 9 th , which was one week after it allegedly occurred and later than the date that Ms. McCartney indicated the investigation took place. Her evidence is that it took place the evening or the day after the alleged accident. 25 . Ms.

McCartney, in her evidence in chief, stated that she did not have to attend at a doctor’s office, in spite of being pregnant and being hit by the defendant in her stomach. She was not hurt or injured but stunned. She then further reiterated that she was pushed back, out of the way, by the Defendant’s vehicle as he sped off. Her dog was also struck by the front left tire of the defendant’s vehicle; however, she did not have her dog looked at until the next day. She did not provide the court with any veterinarian’s bills, but did indicate in her evidence that the dog was not hurt.

In fact the hit was actually an ‘impact’. 26 . The officer, in his evidence, referred to there having been minor contact with the dog, but while she was pregnant, there was no contact with her. She was not hit. 27 . There is no evidence before the court as to the speed of the defendant’s vehicle as he allegedly ‘took off’. Did he swerve into the complainant; or did he drive down the road for a short distance in a straight fashion, dropping off the passenger who was in his vehicle? 28 . The complainant states that she leaned into his vehicle and when he took off she was pushed back.

Yet, she initially stated that her pregnant stomach was hit by the defendant’s vehicle. But only her dog, at the end of the day, was impacted by the defendant’s vehicle’s front left tire when he took off. Yet the dog was on a leash beside her and if the court accepts this, then how could the dog have been hit by the defendant’s vehicle’s front left tire? For this to have occurred, the dog would have had to have been in front of the vehicle or at

least in front of that tire which the court finds that the dog could not have been. 29. The complainant’s evidence is that she had entered the crosswalk for approximately 1.5 meters or 1 car lane into the road when thedefendant was honking at her. She could not understand why this was happening and for that reason she approached the defendant’swindow, which was open and leaned inside it. While having the discourse with the defendant, the complainant stated that her child wasbehind her and was spared being hit by the defendant who hit her dog.

If the court accepts the evidence of the complainant, this wouldplace her daughter somewhere on the road in oncoming traffic. In the court’s mind such behavior on the part of the complainant strainscommon sense and credulity. 30. The court notes that shortly after this, the defendant did stop on the road, not far from the crosswalk, to drop off his fare and it is atthis time that the complainant’s husband had words with the defendant. 31. The court pursuant to R. v.

WD (SCC), [1991] 1 S.C.R. 742 must examine the Defendant’s evidence for credibilityin relation to the Crown’s onus of proving the actus reus by applying the test set out there in as follows: “First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of theguilt of the accused.” 32. This court finds that when applying the test set out in R. v. WD, supra, in assessing the Defendant’s credibility, the evidence of theDefendant is believable. The court further finds that there was no accident and that the defendant was in fact driving with due care andattention when he stopped at the crosswalk. 33.

The prosecution has to establish beyond a reasonable doubt that the manner in which the defendant has driven his vehicle on aroadway was without due care and attention or without reasonable consideration for other persons using the highway. This is the secondelement of the offence. The prosecution has failed to prove this second element of the offence beyond a reasonable doubt. 34. The court finds that the complainant did not lean into the defendant’s vehicle and that he did not speed off in a manner thatconstituted careless driving.

If indeed the defendant hit the complainant’s stomach and her dog in such a manner to have necessitated thelaying of a charge of careless driving, then why was the dog not attended to immediately and why would the complainant, who in herevidence was pregnant, not have attended to her own care immediately? On the contrary, she did not seek medical care at that timehaving reached the conclusion that she was only stunned by the incident, but not hurt or injured.

And if the complainant was pregnant,why would she have by her own admission put herself in a position where her head was inside the window of the defendant’s vehicle,the defendant being an absolute stranger? 35. The defendant, on the other hand, stated that he was honking because the complainant’s dog had entered the roadway into thecrosswalk and he was trying to get her attention. The dog was not on a leash and the complainant’s child was crying. He dropped offthe passenger he was carrying at a house not far from the crosswalk and then was engaged in a conversation with the complainant’shusband. 36.

The complainant’s evidence does not merit a finding that the defendant drove on the highway in a manner that was without due careand attention or without reasonable consideration for other persons using the highway. It is common cause that the defendant stoppedfor the complainant.

37 . This court finds that the prosecution has not proven the charge of careless driving beyond a reasonable doubt as the second element of the offence required for a conviction has not been established. 38 . As the prosecution has not established the actus reus of the offence, the court need not address the issue of whether or not the defendant has raised the defence of due diligence and has been successful in so doing. DISPOSITION: 39 .

For the reasons set out above, the court finds that the prosecution has not met its onus of proving beyond a reasonable doubt that the defendant was driving without due care and attention or without reasonable consideration for other persons using the highway on October 2, 2014. The court finds the defendant not guilty of contravening

section 130 of the Highway Traffic Act , supra . Dated the 2nd day of March, 2016, at the City of Toronto. “J. Opalinski” Joanna Opalinski J.P.