R. v. Howarth, 2016 ONCJ 516

CITATION: R. v. Howarth , 2016 ONCJ 516 ONTARIO COURT OF JUSTICE The Queen v. Joseph Howarth Before Justice of the Peace S. Mankovsky Heard on April 8, 2016 Reasons for Judgment released on August 12, 2016 Ferrari, H. .................................................................................................. Municipal Prosecutor Bennardo, B. ........................................................... Agent for the defendant Joseph Howarth Justice of the Peace Mankovsky: This matter appeared before me on April 8, 2016. It was adjourned twice, to August 10 th , and then to August 12 th , for judgment.

The Charge: Mr. Joseph Howarth is charged with the offence of careless driving contrary to

Section 130 of the Highway Traffic Act R.S. O. 1990 . The Law:

Section 130 states 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 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 his or her licence or permit may be suspended for a period of not more than two years. The offence of Careless Driving is a strict liability offence. For the Prosecution: Ms.

Olga Stojanovic testified with the assistance of the Serbian interpreter. She said that on December 16, 2014 she was travelling east on Bloor Street near the intersection with Mill Road. She estimated that her speed was somewhere between 30 and 50 kilometres per hour, likely less than 50, but not over 50 kilometres per hour. She testified that she had been driving in the right lane for a while because people turned left from the left lane. The traffic light at the intersection was green. She recalled the drizzle at the time of the accident turned to rain afterwards.

She observed the defendant’s vehicle turning left in front of her on to Mill Road southbound. All of a sudden, she said, he was right in front of her. She tried to brake, but was unable to stop her vehicle. As a result her vehicle collided with the defendant’s vehicle, specifically, striking the defendant’s car in the rear. She state further that there had been vehicles travelling in front of her but those vehicle had cleared the intersection. For the Defence: Mr. Joseph Howarth testified on his own behalf. He stated that on December 16, 2014 he was travelling west on Bloor Street.

He intended to make a left turn southbound on to Mill Road. He observed that there were two lanes eastbound on Bloor Street, with no

dedicated left turn lane. He saw four vehicles in the left lane with their blinkers on indicating they were turning left. It was about 4:30 p.m. It was drizzling. The roads were slightly damp. He nudged his vehicle forward to see the traffic in the right lane going through the intersection. He noticed that there were 11 seconds remaining on the clock to assist pedestrians. He concluded that the four vehicles would not be able to proceed forward at the same time because it was rush hour, and there was significant traffic behind him. Mr.

Howarth testified that at that point, he had a view of 120 metres west on Bloor Street where there was a curve that would block further sight. He didn’t see any vehicles in the right lane travelling eastbound, so, with the route clear, he proceeded forward through the intersection. From a stationery position, he made the left turn, at about 35 kilometres per hour. The defendant testified that the vehicle that hit him was a white Toyota Yaris. It was easy to see but he didn’t see it until about a second before it struck the rear bumper of his car. He added that at that point he was through the intersection. Mr.

Howarth testified further that since event occurred, he has continued to wonder where the other vehicle came from. He thought that maybe she had moved from the left lane and decided to go around because when her car struck his, she was travelling faster than he would entering an intersection where he was “blind with the left lane.” Mr. Howarth said that the speed limit was 50 kilometres per hour and that the other driver must have been driving “at least” over the speed limit by the time she hit him as she was about 10 feet from him.

When he saw the other vehicle, she began to slow down, and she did apply the brakes. However, that was too late, as he saw her in the last second. Mr. Howarth testified that he couldn’t figure out from where the vehicle that hit him had come. Perhaps she came out of the Mc Donald’s parking lot on the south side of Bloor. Or, she could have made a left turn from the north side of Bloor. Mr. Howarth expressed several thought as to where Ms. Stojanovic came from when she hit him. Summation by the Defence: Mr.

Bennardo asserted in his submission that there were so many inconsistencies in the testimony of the prosecution witness that she was not credible. He pointed out that Ms. Stojanovic had said she “guessed”, she “thought”, as examples. Her replies to his simple and clear questions were not clear and concise, although she did say that she swore on the Bible, nevertheless much of her testimony was vague.

He acknowledged that she was adamant that the defendant cut in front of her, and that she couldn’t see the defendant’s vehicle, providing the reason that it all happened “in the blink of any eye.” Submission by the Prosecution: Ms.

Ferrari stated that there was agreement of many of the facts, namely: -The date; -The time, 4:30 p.m.; -The weather conditions—there was a slight drizzle prior to the collision; -The location; -The description of the roadway, specifically Bloor Street and Mill Road; -The directions of the roadways that Bloor Street runs in an east-west direction and Mill Road runs in a north-south direction; -The placement of their vehicles, that is, the defendant was travelling westbound, waiting to make a left turn, her vehicle was travelling east on Bloor Street; -The light was green; - A number of vehicles were waiting to make a left turn north on to Mill Road.

Mr. Howarth said there were four vehicles, and Ms. Stojanovic agreed there were four, but there may have been five vehicles; and -The collision occurred in a split second. There is disagreement on the circumstances that led to the collision. The prosecutor submitted that Mr. Howarth couldn’t specify in his testimony where the car that hit his car had come from because he didn’t see her car until she hit the rear of his car. He speculated, but he couldn’t be definitive. According to the prosecutor, Ms. Stojanovic had the right of way as she was travelling through the intersection while the traffic light was green.

She hit Mr. Howarth’s car as he was turning left. According to the prosecutor, the defendant should not have been proceeding to make the left turn when he did. He did not act with due care and attention for other vehicles.

Analysis: There is agreement that Mr. Howarth did not completely negotiate the left turn when Ms. Stojanovic’s vehicle struck his vehicle. Theissue that the Court must decide is whether, in the totality of the circumstances, on consideration of the totality of the evidence acceptedby the Court, the Court should find the prosecution has proven the essential elements of the offence beyond a reasonable doubt.

That so, in this scenario, a strict liability offence provides the defendant with the right to a due diligence defence, that, on a balance ofprobabilities, the defendant took all reasonable care to avoid committing the offence. In its decision in R. v. Sault St.

Marie (City), (SCC), [1978] 2 S.C.R. 1299, Dickson J., writing for the Court statedwith respect to the definition of a strict liability offence as: Offences in which there is no necessity for the prosecution to prove the existence of men’s rea; the doing of the prohibited act primafacie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involvesconsideration of what a reasonable man would have done in the circumstances.

The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event. These offences may properly be called offences of strict liability. In Levis (City) v. Tetreault, 2006 SCC 12 , [2006] S.C.J.

No. 12, the Supreme Court of Canada explained the Sault Ste.Marie decision with respect to the application of due diligence by saying: Under the approach adopted by the Court, the accused in fact has both the opportunity to prove due diligence and the burden of doing so.An objective standard is applied under which the conduct of the accused is assessed against that of a reasonable person in similarcircumstances The Ontario Court of Appeal considered the offence of careless driving in, R. v. Beauchamp, (ON CA). AlthoughBeauchamp was decided over 50 years ago, it continues to be authoritative.

In Beauchamp, the court directed that consideration of theexercise of "due care and attention" must be viewed in relation to both the prevailing driving conditions with factors such as visibility,weather, traffic, road worthiness or road condition considered and "the consideration that a driver of ordinary care would have used orgiven in the circumstances." The determination of whether or not "due care" was exercised by a given driver is a question of factcontingent or dependent on the particular circumstances in a given case.

Specifically, the test is whether it is proved beyond reasonable doubt that this accused, in the light of existing circumstances of which he was aware orof which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give to other persons usingthe highway the consideration that a driver of ordinary care would have used or given in the circumstances?

The use of the term "duecare", which means care owing in the circumstances, makes it quite clear that, while the legal standard of care remains the same in thesense that it is what the average careful man would have done in like circumstances, the factual standard is a constantly shifting one,depending on road, visibility, weather conditions, traffic conditions that exist or may reasonably be expected, and any other conditionsthat ordinary prudent drivers would take into consideration. It is a question of fact, depending on the circumstances in each case. In R. v. Globocki, [1991] O.J.

No. 214 (O.C.J.), the Court held that where an accident has occurred, the fact that serious injury or deathhas resulted is not, except in unusual cases, relevant to an assessment of whether there has been a departure from the standard of carewhich would justify a finding of careless driving. Recently, in R. v. Shergill, 2016 ONCJ 163, His Honour Epstein the enhanced the long-standing jurisprudence with respect to theoffence of careless driving when he stated that: What rings loudly from the case law is that a contextual analysis must be undertaken in each case. Viewed in that light this issue neednot be complex.

If, in the circumstances, the only reasonable inference to be drawn from the fact of an accident is that the defendant wasoperating his or her vehicle on a highway without due care and attention or without reasonable consideration for other persons using thehighway then the actus reus has been made out. It then falls upon the defendant to establish that he or she reasonably believed in amistaken set of facts which, if true, would render the act or omission innocent, or that he or she took all reasonable steps to avoid the particular event. Further, His Honour Epstein stated that: R. v. McIver [1965] 2.

O.R. 475 (Ont.C.A.) is still applicable. McIver does not suggest that the fact of an accident is sufficient toestablish the actus reus in all cases but simply that it may be sufficient depending on the circumstances. McIver does not purport toestablish a new legal presumption in relation to highway traffic law. It simply re-states a venerable proposition applicable to inferencesbeing drawn from circumstantial evidence. If the fact of an accident may give rise to reasonable inferences other than that the defendant

was driving carelessly then it will not establish the actus reus. Mr. Howarth maintained that he took all reasonable care to turn left from Bloor Street on to Mill Road. He asserted that it remains amystery to him where vehicle came from, and suggested possible origins. He described the manner in which he entered the intersectionof Bloor Street and Mill Road, the number of seconds—11—before the green light would change for pedestrians, and the cars lined up inthe left lane of Bloor Street, signals flashing waiting to turn north on to Mill Road, and the details of the execution of his left turn.

At notime did he notice Ms. Stojanovic’s car enter the intersection until a split second before the collision. It all happened in a split second, hetestified. From his testimony I would conclude that Mr. Howarth didn’t see Ms. Stojanovic’s vehicle. She had the right of way enteringthe intersection travelling west on Bloor Street. Mr. Howarth’s vehicle didn’t clear the intersection, whilst making a left turn on to MillRoad. Mr. Howarth was required to ensure that the intersection was clear before embarking on the turn. In these circumstances theaccident that ensued was a result of his driving behaviour.

Application of the Test in R v. W. (D.) I have been requested by the defence to address the credibility of the two witnesses with respect to the test in R. v W. (D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.). He posits that while the defence witness is credible, the prosecution witness is notcredible. That test can be summarized as follows: I do not believe the defendant. I have no doubt as a result of the defendant’s testimony.

If I am not left in doubt by the evidence of the accused, I must ask myself whether I am convinced beyond a reasonable doubt of the guiltof the defendant on the basis of the balance of the evidence which I do accept. Ms. Stojanovic was clear and consistent in her testimony. She acknowledged that a substantial period of time had passed, and that shewanted to give accurate testimony. She understood that her testimony was under oath, and that she was bound to be honest and forthrightin her testimony in a Court of Law. In his defence against the charge, Mr.

Howarth’s testimony did not provide any clarity on the details of the mishap in his testimony. Onthe contrary, he appeared to be seeking to transfer responsibility to Ms. Stojanovic for the consequences of his actions and in doing so hedid not enhance his own credibility. I conclude that Mr. Howarth has not met his onus to establish that he took all reasonable care andshould not be found guilty of the offence of careless driving. Finding: Having considered

Section 130 of the Ontario Highway Traffic Act, the applicable case law of higher courts, including R. v Shergill, thetestimony of the prosecution witness and the testimony of the defendant, examination and cross-examination of the witnesses, and thesummations by the prosecutor and the Agent for the defendant, I find the defendant guilty of the offence of careless driving, contrary toSection 130 of the Highway Traffic Act, and I will register a conviction Sentence: I invite the prosecutor, followed by the Agent for the defendant to make submissions on penalty. Released: August 12, 2016 Signed: “Justice of the Peace S. Mankovsky”