York (Regional Municipality) v. Clarke, 2019 ONCJ 545

ONTARIO COURT OF JUSTICE CITATION: York (Regional Municipality) v. Clarke, 2019 ONCJ 545 DATE: 2019-07-25 Central East REGIONAL MUNICIPALITY OF YORK — AND — MICHAEL W. CLARKE Provincial Offences Act Appeal Before Justice Marcella Henschel Heard on June 14, 2019 Reasons for Judgment delivered July 25, 2019 Ms. Carolyn Galin........................................... Prosecutor, Regional Municipality of York Ms. Kelly Anne Swales.................................................................... Agent for the Appellant HENSCHEL J.: A. Overview and

Summary of the Facts [ 1 ] On January 23, 2018, following a trial, Michael Clarke was found guilty of driving without properly wearing a seatbelt contrary to s. 106(2) of the Highway Traffic Act . Mr.

Clarke appeals his conviction. [ 2 ] At trial the sole Crown witness, PC Brett Cook, testified that on September 15, 2017 at approximately 8:41 a.m. he was travelling northbound on the Queensway South, north of Ravenshoe Road East when he saw the appellant driving a white GMC pickup truck travelling southbound on the Queensway South, heading towards Ravenshoe Road. [ 3 ] In examination-in-chief he testified that the driver, the appellant, was not wearing a seatbelt and it appeared he was either changing the radio station or using a hand held device because he did not notice PC Cook as PC Cook passed him in his cruiser.

PC Cook said that the appellant had his driver’s side window down completely and he could see that the appellant was wearing a blue t-shirt and that the grey seatbelt was not across his chest. He said that the seatbelt was resting against the B-pillar and he could see the seat belt flapping or waving in the wind, due to the window being all the way down. He estimated that when he passed Mr. Clarke and made the observations he was about one meter from Mr. Clarke.

He was travelling in lane one northbound, and the appellant was travelling in lane one, southbound. [ 4 ] PC Cook testified that he did a U-turn to follow the appellant southbound and never lost sight of his vehicle. Once he was behind the appellant’s truck, the truck got into the left hand turn lane to turn left onto Ravenshoe Road East. There was one car between his cruiser and the truck.

As the appellant turned left onto Ravenshoe Road East, PC Cook indicated that he activated his roof lights and stopped the truck at approximately 8:43 a.m. [ 5 ] PC Cook testified that he got out of his cruiser and approached the truck on foot with PC Chabrinski. When PC Cook got to the appellant’s vehicle, he said he saw that the appellant was wearing the grey seatbelt and that it was clearly visible across his blue t-shirt.

He issued the appellant a ticket for failing to properly wear a seatbelt. [ 6 ] PC Cook agreed in cross-examination that he made his observations regarding the seatbelt in one to two seconds while travelling 60 to 70 km per hour. He was shown a picture that he identified as the appellant’s vehicle and agreed that the seatbelt looked black in the photograph. When asked in cross-examination whether it was possible that Mr. Clarke had his seatbelt on, the officer responded “I believe it’s possible, but when I saw him I did not believe he had his seatbelt on”.

When asked again whether it was possible when he first saw the appellant that the seatbelt was on, he responded, “it’s possible, but like I said, I saw it flapping in the wind

against the B-pillar”. [ 7 ] The appellant testified and said that on the day he was stopped by PC Cook he was travelling southbound on the Queensway on his way to work, and made a left hand turn onto Ravenshoe Road immediately prior to the stop. He testified that, after leaving his home, he was wearing his seatbelt at all times and testified that it was dark blue. He testified that he was wearing the seatbelt when he was stopped by PC Cook. He also testified that his windows were closed prior to the stop. B.

Reasons for Judgment and Positions of the Parties [ 8 ] Justice of the Peace Clark found as a fact that the appellant was not wearing his seatbelt prior to the stop but was wearing it at the time of the stop. He found the appellant guilty of failing to properly wear his seatbelt. [ 9 ] In his reasons, Justice of the Peace Clark averted to the discrepancy in the evidence between the officer’s testimony that when he passed the appellant he saw that the seat belt was not across his chest and was flapping in the wind, and his evidence that when he stopped the appellant, the appellant was wearing the seatbelt.

He reconciled this evidence by indicating that it was a matter of “timing”. [ 10 ] In accepting PC Cook’s conclusion that the appellant had not been wearing his seatbelt, Justice of the Peace Clark emphasized that PC Cook was only a short distance from the appellant when he made his observations, and that he saw a difference between when his first saw the appellant and the belt was flapping in the wind, and later when he saw the seatbelt across the appellant’s chest.

It is implicit in Justice of the Peace Clark’s reasons that he rejected the appellant’s evidence that he was wearing the seatbelt at all times, and that he concluded that the appellant put the seatbelt on sometime between when the officer passed him and when his truck was stopped.

In respect of the color of the seatbelt, Justice of the Peace Clark concluded that the pictures of the seatbelt were not reliable with respect to color, because they were not taken at the time of the incident. [ 11 ] Justice of the Peace Clark did not explain why he rejected the appellant’s evidence, which was not shaken in cross- examination.

He did not explicitly address facts that supported the defence assertion that the officer was mistaken in his belief that the applicant was not wearing his seatbelt including that although PC Cook indicated that he never lost sight of the appellant, there was no evidence that he saw the appellant putting on his seatbelt or the defence assertion that the officers evidence was not reliable, given the short period of time he had to make his observations (one to two seconds) and the speed at which his observations were made, both vehicles were travelling 60 to 70 km/hour in opposite directions.

Justice of the Peace Clark did not directly address PC Cook’s acknowledgement in cross-examination that it was possible that the defendant was wearing his seat belt. [ 12 ] The appellant submits that the appellant was a credible witness, and that although credible, the officer’s evidence was not reliable.

The appellant submits that the principles in W.D. [1] , were not properly applied and that a proper application of the W.(D.) principles demanded a finding of not guilty. [ 13 ] The respondent, relies upon the reasoning of the Supreme Court in Vuradin [2] , and submits that the reasons of the learned Justice of the Peace establish that he accepted the officer’s evidence where it conflicted with the appellant’s evidence and no further explanation was required. The respondent submits that the Justice of the Peace was not required to explicitly outline the W.(D.) steps and properly applied the burden of proof. C.

Standard of Review and

Summary of Applicable Legal Principles [ 14 ] This matter was commenced by certificate under

Part I of the Provincial Offences Act ( POA ). As a result, ss. 135, 136 and 138 of the POA govern the powers on appeal. [ 15 ] Section 135(1) provides that an acquittal, conviction, or sentence in any proceeding commenced by certificate may be appealed to the Ontario Court of Justice. [ 16 ] Section 136(2) provides that the appeal is to be conducted by means of a review.

The appeal court's broad powers in conducting the review are set out in ss. 136(1) and 136(3). [ 17 ] Section 138(1) provides that the appeal court may “affirm, reverse, or vary the decision appealed from, or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial”. [ 18 ] In Michaud [3] , the Ontario Court of Appeal considered the scope of appellate review under ss. 135 and 138 of the POA and held that the review is broad and that “the legislature clearly intended

Part I appeals to be conducted as robust reviews, so that deference to the trial justice is limited to credibility findings”. The court adopted the explanation of Justice Duncan in Gill regarding the nature of the review : I am of the view that I must review the record before me and reach my own conclusion on the issue. It is not a matter of deferring to the trial justice's conclusion and intervening only if I conclude that her decision was unreasonable. To approach it in that way would be to effectively transpose the

Part III provisions to

Part I and II appeals when the legislature took pains to distinguish between the two. However, where findings of credibility are in issue, I should accept the trial justice's findings unless they are unreasonable . [4] [ 19 ] In Gill , Justice Duncan distinguished

Part I appeals from appeals of proceedings under

Part III, or those governed by the Criminal Code , in which an Appeal court may only intervene if the trial judgment was unreasonable, unsupportable, or erroneous in law. He noted that “even the requirement in s. 138 that it ‘is necessary to satisfy the ends of justice’ applies only to the order for a new trial, rather than the allowance of the appeal itself”. [ 20 ] Justice Duncan also made clear in Gill that an assessment of the sufficiency of evidence to support a conviction was well within the broad jurisdiction of a

Part I appeal court. [5] Similarly, in Michaud , although the court was considering the scope of review

in circumstances where fresh evidence was admitted, the Ontario Court of Appeal emphasized that a

Part I POA appeal court is entitled to come to his or her own conclusion on all of the evidence and that “the assessment of the evidence is at the core of the appeal judge’s function under

Part I of the POA” . [ 21 ] To summarize, a

Part I POA appellate court “may review the record and reach its own conclusions on the issues. It need only show deference to the trial court's reasonable findings of credibility”. [6] [ 22 ] Central to the issues on this appeal is whether the Justice of the Peace properly applied the burden of proof in accordance with the principles set out by the Supreme Court of Canada in W.(D.) .

In W.(D.) the Supreme Court held that, to assist in the proper application of the burden of proof when there are competing versions of events, the issues should be considered in three steps 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 the guilt of the accused. [7] [ 23 ] W.(D.) prohibits triers of fact from treating the standard of proof as a credibility contest.

A trier of fact should not conclude that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. [8] A trial cannot be a credibility contest, with a conviction if the complainant (or police officer) wins the contest and an acquittal if the defendant does. To treat it as such would be to improperly shift the burden of proof.

Rather, if the defence evidence, seen in the context of all the evidence, raises a reasonable doubt, then the trial judge cannot convict. [ 24 ] Even where the trier of fact completely rejects the defence evidence and has no reasonable doubt as a result of that evidence, the trier of fact must assess the evidence as a whole and determine whether the Crown has discharged its burden of proving guilt beyond a reasonable doubt. [ 25 ] The rule in W.(

D) is “intended to ensure that reasonable doubt is properly applied where the credibility or reliability of evidence inconsistent with guilt is in issue”. The rule applies in this case because the appellant offered evidence at his trial inconsistent with his guilt, and the credibility and reliability of that evidence – and the competing evidence of the officer – was called into question. [9] D. Analysis and Conclusions [ 26 ] Bearing the above principles in mind, I have concluded that the appeal should be allowed, and an acquittal entered.

Although justices of the peace presiding in busy provincial offences courts may not be expected to provide reasons for judgment that meet the standard dictated in Sheppard [10] and Braich [11] , the reasons must be sufficient to allow for appellate review. In this case, the Justice of the Peace gave no explanation as to why he rejected the appellant’s evidence, or why it did not leave him in a reasonable doubt.

This occurred in circumstances where the appellant’s evidence was not shaken in cross-examination, the officer acknowledged that it was possible that the appellant may have been wearing his seatbelt at the time he passed him, and the appellant was wearing his seatbelt when stopped. In this context, an explanation of why the appellant’s evidence was not accepted, or did not raise a reasonable doubt was required.

The reasons read in context do not show why the judge decided as he did. [ 27 ] Secondly, in my view, there is strong reason to believe that the Justice of the Peace engaged in the type of credibility contest reasoning that the rule in W.(D.) was intended to prevent, by deciding which of the competing versions he preferred. The reasons suggest that the Justice of the Peace rejected the appellant’s evidence because he preferred PC Cook’s evidence. The reasons suggest that as a result of preferring the officer’s evidence the Justice of the Peace rejected the appellant’s evidence, without any analysis as to why.

This is concerning given the extrinsic evidence that tended to support the appellant’s version of the events, including that he was wearing his seatbelt when stopped.

In the circumstances of the case, in the absence of a clearly articulated reason to reject the appellant’s evidence, in my view the evidence of appellant was capable of raising a reasonable doubt. [ 28 ] The reasons of the Justice of the Peace also suggest that he failed to consider whether the evidence of the officer, even if accepted as credible was sufficiently reliable to establish guilt beyond a reasonable doubt, having regard to the frailties of the officer’s evidence.

As explained by the court of Appeal in Morillo , “Credibility contests are not properly resolved by choosing one side after carefully giving the other side fair consideration in the context of all of the evidence. They are resolved by ensuring that, even if the evidence inconsistent with guilt is not believed or does not raise a reasonable doubt, no conviction will occur unless the evidence that is accepted proves the guilt of the accused beyond a reasonable doubt”. [12] [ 29 ] In the factual circumstances of this case, I am not satisfied that the principles in W.(D.) were properly applied.

Even with deference given to the credibility findings of the Justice of the Peace, I am not satisfied that the evidence of PC Cook was sufficiently reliable to prove the charge beyond a reasonable doubt. PC Cook had only a fleeting opportunity to make his observations. He testified that he observed the belt flapping in the wind, but there was no evidence that he saw the buckle of the seatbelt.

Given that the appellant was wearing a dark shirt, if the seatbelt was dark, as depicted in the photograph, and not grey as described by the officer, the officer may have been mistaken regarding whether the seatbelt was across the appellant’s chest. That the officer was mistaken was a very real possibility, given that the appellant was wearing his seatbelt when stopped. In addition, the officer did not see the appellant put on the seatbelt after he passed him, even though he testified he did not lose sight of the vehicle.

Finally, given the officer’s candid and fair acknowledgement in cross-examination that it was possible that the appellant was wearing his seatbelt when he passed the officer, the evidence when considered as a whole is simply not of sufficient strength or reliability to establish the offence beyond a reasonable doubt. [ 30 ] There is a complete record of the evidence and in my view the proper outcome of a new trial would be an acquittal given the frailties of DC Cook’s evidence. As a result, it would be contrary to the ends of justice to order a new trial for this simple matter.

Accordingly, the appeal is allowed, the finding of guilt is set aside and instead there will be a finding of not guilty. Released: July 25, 2019.

Signed: “Justice M.L. Henschel”