R. v. Hayle, 2018 ONCJ 402

CITATION: R. v. Hayle , 2018 ONCJ 402 DATE: April 25, 2018 Information No. 2811-999-00-5313739Z ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES ACT HER MAJESTY THE QUEEN v. CHRISTOPHER HAYLE A P P L I C A T I O N T O A P P E A L BEFORE THE HONOURABLE JUSTICE P.C. WEST on April 25, 2018 at Oshawa, Ontario. APPEARANCES : V. Oliveira Provincial Prosecutor R. Dinner Paralegal for Mr. Hayle

WEDNESDAY, APRIL 25, 2018 THE COURT: Which one do you want to deal with? MS. OLIVEIRA: Mr. – I believe the 11:30 docket for Mr. Christopher Hayle, if possible. MR. DINNER: Good afternoon. For the record, Dinner, D-I-N-N-E-R, initial “R”. THE COURT: I’m sorry, your name? MR. DINNER: Dinner, D-I-N-N-E-R, initial “R”. THE COURT: Sorry, I’m missing what you’re saying. MR. DINNER: Okay. Last name Dinner. D-I.... THE COURT: Oh, Dinner. MR. DINNER: Yeah, just like supper. THE COURT: Which we’re – yes, okay. Which we’re going to have later tonight. MR. DINNER: Hopefully, yeah. THE COURT: And initial? MR. DINNER: “R”. THE COURT:“R”. Thank you, sir. You’re an agent? MR. DINNER: Yes, I am.

THE COURT: Okay. And.... MS. OLIVEIRA: We have reached a resolution subject to Your Honour’s approval. I was present with Your Honour for the status hearing and I did record Your Honour’s comments with respect to the review of this case, which prompted me to engage in a resolution conversation. And we have managed to do that today. So I would be asking Your Honour to allow the appeal, and enter a substituted offence, subject to Your Honour’s approval, to an amended offence entitled “fail to turn out to the left to avoid a collision” and that is contrary to the Highway Traffic Act section 148(5). THE COURT: Sorry,

section 148? MS. OLIVEIRA: That’s correct, subsection.... THE COURT: Subsection (1)? MS. OLIVEIRA: Subsection (5). THE COURT: Five? MS. OLIVEIRA: Yes. THE COURT: And what’s it called again? Fail to.... MS. OLIVEIRA: “Fail to turn out to the left to avoid a collision.” THE COURT: All right, and what’s the fine? MS. OLIVEIRA: I’m asking that the fine be varied to $200. MR. DINNER: Um.... MS. OLIVEIRA: Oh, sorry, $150. That was 150 you have recorded? Thank you. R E A S O N S F O R J U D G M E N T WEST, J : (Orally) I received the materials for this matter prior to today.

I think there are a number of things I do need to say with respect to the trial itself. The first comment I would make is that evidence came to light from the other driver, Ms. Mackenzie, that she had taken pictures on her cell phone, which had not been provided to the police during the reporting at the collision centre; as a result, not provided to the prosecutor and as a result, not provided to Mr. Hayle, and not provided to the agent who was representing him.

Mr. Hayle was not present at his trial, which he’s entitled not to be. I’ve made comments on that previously in other cases. I’ve never understood why anyone would want to run a trial without their client present; why they would want to open - the agent or the lawyer, open themselves up to potential allegations of incompetence, or not being properly represented. But in any event, Mr. Hayle was not there. This was Mr. La Carla, as the agent, he made a request for an adjournment and that adjournment was denied. That’s at the very beginning of the trial.

That adjournment should have been granted, because it was new evidence that had not been disclosed, and at that point, the evidence was unclear as to whether the Crown could prove identity. The witness wasn’t able to prove identity. In fact, she talked about there being two young men in the car that looked like twin brothers.

She couldn’t say who, and as it turned out, the photographs that were ultimately entered in the trial, which again, I think – it’s new evidence that has not been disclosed – was, as I understand from the transcript, the ownership of the – what I would assume to be the father of the two boys in the car, and the insurance, because it was in a different name, than the person who was charged. That immediately should have also caused some concerns on the part of the learned justice of the peace. The trial continued.

Police did not attend the scene of this accident, which is a decision that’s been made by police services in respect to Highway Traffic Act matters. Unless there’s injury or very serious damage, police don’t tend to come out to fender-benders anymore. You have to go to a collision reporting centre. The difficulty with that is that the police officer who is ultimately called by the prosecutor on a trial has not been to the

scene, does not know what the scene looks like, does not know where the vehicles were when the collision occurred, does not know the condition of the road, other than what the witnesses may indicate in their statements. And that produces, I think, a difficulty for the prosecutor. Constable Lee was the officer working at the collision centre. He spoke with Ms. Mackenzie. He also spoke with Mr. Hayle. The prosecutor, in order to prove identity, produced Mr. Hayle’s statement and filed it, had the officer read it into the record.

So it was introduced, as there was a voir dire initially held but ultimately conceded to be voluntary. It was filed as part of the Crown’s case, put in for the truth of its contents. That then became evidence before the justice of the peace, that she would have to deal with in her decision, which she did not. It invokes W.(D.) and there’s no consideration whatsoever with respect to W.(D.) in this case. She also prevented the agent from cross-examining the officer as to his decision to lay the charge of careless driving. The officer, as I said, was not on the scene.

He did not see the conditions of the road or even the layout of the roadway. The distance from the railway tracks to where the highlander that Ms. Mackenzie was driving was stopped at the red light or whether there was snow or ice present on the road’s surface. The explanation provided by Mr. Hayle is fully exculpatory to the charge of careless driving. I’ll read that in a second, but the learned justice of the peace, when the agent started to cross-examine the officer about the laying of the charge, stopped him and said words to the effect that obviously, the officer felt that Mr.

Hayle did not exercise the standard of care or he wouldn’t have written the ticket. It was not the officer’s view that she cared about. He had the grounds to lay the ticket. Frankly, that was one of the issues that she was supposed to determine in the course of this trial.

As I said, the Crown introduced Mr. Hayle’s statement through the officer where he provides an explanation for the accident. It was a snow-covered road. It snowed the night before. As soon as he crossed the train tracks he lightly placed his foot on the brake. His car began to slide, lose control. Due to the inclement weather he was driving slower than the speed limit. His car would not stop; it kept sliding and it slid right into the vehicle that was stopped at the red light. That is exactly the same as if Mr. Hayle had testified. It was introduced by the Crown. It’s an exculpatory explanation. Ms.

Mackenzie agreed, in cross- examination there was snow on the ground and it was slippery. This was not a careless driving, in my view. In her reasons for judgment, as I’ve already indicated, the learned justice of the peace did not in any way deal with the W.(D.) analysis, and I recognise that she does not have to go through it by rote or religiously and cite all the things that it said in W.(D.) or in Lifchus , or in Starr , in the Supreme Court of Canada, but she has to deal with the accused’s evidence.

She has to determine whether the accused’s evidence raises a reasonable doubt on the second phase of W.(D.) or whether she even believes the accused’s evidence. Because if she

believes it, she must acquit. If it raises a reasonable doubt even if she doesn’t believe him completely, she still must acquit, and then she must look to the evidence that she does accept. And there was no explanation for the accident other than that Ms. Mackenzie said she was stopped for 30 seconds, but she agreed it was slippery; there was snow on the road and she didn’t know why the car that struck her struck her. She had no idea because she was sitting there, waiting for the light to turn from red to green, and she was struck before it turned green.

The learned justice of the peace said that there was no issue raised except in cross-examination, as to the weather conditions and the road conditions. Well that’s how an agent or a lawyer raises issues; through cross-examination because the evidence of Ms. Mackenzie could be both for the accused or against the accused. In my view, it was a perfectly proper way for the agent to have raised this issue, and the learned justice of the peace did not deal with it, because she said it wasn’t raised, except perhaps in cross. Further, as I have indicated, the Crown led the accused statement as part of their case.

That squarely raised the issues of weather conditions and road conditions, and whether this was an unavoidable accident or a departure from the standard of care that is required in

a careless driving charge. This was not dealt with at all by the learned justice of the peace. A little bit later the justice of the peace did address the weather and road conditions raised in cross-examination and had this to say, and I quote: “I am just going to say that argument falls short of what is required for careless driving.” And in my view, this put the onus on Mr. Hayle to prove that he did not depart from the standard of care. The Crown must present a prima facie case before the onus shifts for the accused to demonstrate due diligence.

There was evidence in this case, in my view, that called into question the Crown’s proof beyond a reasonable doubt of the actus reas and it was not dealt with by the learned justice of the peace. And as I’ve already indicated, it is my view, the failure to deal with the W.(D.) analysis by the learned justice of the peace was a fatal error and the accused does not have to testify if the Crown prosecutor leads the accused’s statement, and the learned justice of the peace must address that issue when that happens.

I’ve had many cases in this POA Appeals Court where the Crown has led the accused’s statement at the collision centre. And I think that

the Crown’s need to be aware that they have to deal with W.(D.) in their submissions to the justice of the peace. Agents need to understand that; it raises that issue full square. And the learned justice of the peace sitting on a case needs to understand as well. That’s why I’m saying the comments I’m saying. There is also, in her reasons for judgment, the learned justice of the peace conceded that the accident occurred as a result of the accused’s vehicle slid or crashed. Now, those are two different things. Slid could be completely consistent with the statement given by Mr.

Hayle, that he couldn’t avoid the accident because of the road conditions, and clearly, given his evidence, driving slow, he went over the train tracks, just applied his brake and the car slid into the back of Ms. Mackenzie’s vehicle. Couldn’t stop because – applied the brakes softly, lightly, as he put it. Softly is my word, lightly was his word. And he could not stop. That is evidence of due diligence that would have to be dealt with in terms of the W.(D.) analysis. If there in fact proof beyond a reasonable doubt of the actus reas . So, I can indicate to you both I would have acquitted Mr.

Hayle of the charge that is before the Court. THE COURT: But you’re both asking me to take a guilty plea to a lesser offence under section 148(5) of a fail to turn to the left to avoid

a collision. I take it that’s still your position? MR. DINNER: Yes. THE COURT: I’m going to exercise my discretion with respect to payment of fine under the P.O.A. Ms. Oliveira, I think it’s section.... MS. OLIVEIRA: 59(2). THE COURT: I’m going to impose a $50 fine. MS. OLIVEIRA: Thank you, Your Honour. MR. DINNER: Thank you, Your Honour.

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