R. v Parke, 2010 ONCJ 583

Citation: R. v Parke , 2010 ONCJ 583 Her Majesty the Queen v. Cynthia Parke Ontario Court of Justice, Cayuga Court, File #080193 D. M. MacDonald, J.P. Heard: July 27, November 2, December 21, 2009; March 29, April 30, July 5, August 20, October 1, 2010 Judgment: November 26, 2010 Prosecutor for Crown: C. Szoke Counsel for Defence: P.J. Osier Charge: Careless Driving, s. 130 of the Highway Traffic Act of Ontario , on March 28, 2008, on the Highway #6 Caledonia by-pass, Haldimand County. D.M. MacDonald, J.P., (Orally): …………………………………………………………….

BACKGROUND 1 On the first trial date of July 27, 2009, the prosecutor and defence counsel agreed that a number of facts could be agreed upon, including: the date; time; location; and that the defendant was operating a motor vehicle on the date in question. At approximately 2:42 p.m. on March 28, 2008, the defendant was the driver and sole occupant of a Ford Freestyle SUV-type motor vehicle and travelling northbound on the Highway #6 two lane by-pass, west of the former town of Caledonia in Haldimand County. The posted speed limit on this highway is 80 km. per hour.

The defendant’s motor vehicle collided with a southbound Ford Escort motor vehicle being driven by Mr. Rene Montague, the sole occupant, in the area of the Sixth Line Road overpass. This collision resulted in the tragic death of Mr. Montague. Following the collision, the defendant was transported to a hospital in Hamilton for treatment and the local coroner arrived at the scene of the accident to confirm that Mr. Montague was deceased. A police investigation commenced at the scene of the accident, involving a number of police officers including officers trained in accident reconstructions.

Witnesses were interviewed by the police, and it was initially determined that there were no eyewitnesses to the accident. 2 At the conclusion of the police investigation into the cause of the motor vehicle collision, the police decided to charge the defendant with the offence of careless driving, under the Highway Traffic Act, R.S.O, 1990, c. H.8, as amended. An Information was laid at the Haldimand Country Provincial Offences Court in Cayuga on July 28, 2008, and at that time a justice issued a summons, ordering the defendant to attend the court on September 5, 2008.

Following several court appearances by the defendant’s legal counsel, plus a pre- trial, a trial commenced on July 27, 2009. THE LAW 3

Section 130 of the Highway Traffic Act, R.S.O, 1990, c. H.8, as amended, states:

130. 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. 2009, c. 5, s. 41 . THE TRIAL 4 The trial commenced on July 27, 2009, and continued on December 21, 2009.

A number of Ontario Provincial Police (OPP) officers testified, including officers who have had training in accident reconstruction. Several civilian witnesses also testified, including those who had not initially provided witness statements to the OPP. Many photographs taken by the OPP were provided as exhibits at the trial, as were photographs taken by a civilian witness.

Detailed diagrams of the area where the collision took place were submitted as exhibits, as were reports prepared by the police regarding the collision. 5 The lead investigator for the OPP determined the point of impact of the collision took place in the southbound lane of the Highway #6 by-pass, which was the lane in which Mr. Montague’s motor vehicle was travelling.

The OPP lead investigator also reviewed the results of an examination of the computerized “black box” taken from the defendant’s motor vehicle, which provided information regarding the speed of the motor vehicle in the twenty-five seconds immediately prior to the collision, plus the fact that there was no apparent attempt by the defendant to apply the motor vehicle’s brakes during this time period. He testified that there were skid marks in the southbound lane, which indicated that Mr. Montague had applied the brakes of his motor vehicle immediately prior to the collision.

The OPP lead investigator testified that after consulting with another OPP officer, a determination was made to lay the charge that is before the court, as it was concluded that the collision had taken place due to the defendant’s inattention while operating her motor vehicle prior to the collision. 6 Some civilian witnesses testified that they arrived on the scene of the motor vehicle collision a short time after the collision had happened, and prior to the arrival of police or other emergency personnel. One of these witnesses testified that he used a fire extinguisher to put out a fire in Mr.

Montague’s motor vehicle. Another witness testified that the defendant advised him prior to her being taken to a hospital by ambulance, that Mr. Montague had hit her motor vehicle. 7 A witness who had not provided a statement to the OPP prior to the decision being made to lay the charge against the defendant, testified that she had been following Mr. Montague’s motor vehicle southbound on the Highway #6 by-pass. She testified that she did not observe anything unusual regarding the operation of the motor vehicle. She testified that she momentarily lost sight of Mr.

Montague’s motor vehicle until she proceeded closer to where the Sixth Line bridge goes over the Highway #6 by-pass, where she observed Mr. Montague’s motor vehicle being pushed by the defendant’s motor vehicle, and that this movement was taking place in the northbound lane of the highway. She testified that she was not interviewed by the OPP regarding the motor vehicle collision until shortly before the continuation of the trial in December, 2009. O’CONNOR APPLICATION 8 Several questions were raised with prosecution witnesses by the defence counsel as to whether or not the defendant or possibly Mr.

Montague had veered from one lane to another to avoid something that had been thrown from the Sixth Line Bridge. The defence counsel requested additional disclosure documents from the prosecutor that could possibly provide additional information to support this argument. Eventually, the OPP provided a sealed package of incident reports which supposedly contained information regarding dates, times and locations where people had reported that items had been thrown from bridges onto highways in Haldimand County.

This information took place over a number of months, leading up to the motor vehicle collision on March 28, 2008. A mid-trial hearing took place as set out in the Supreme Court of Canada’s decision in R. v. O'Connor , 1995 CanLII 51 (SCC) , [1995] 4 S.C.R. 411. The prosecutor argued that although the reports in the sealed envelope could be reviewed by the court, this review could only take place in the information contained in the envelope was determined to be “likely relevant”, as set out by the test in O'Connor .

The defence counsel argued that the motor vehicle collision had taken place in close proximity to the Sixth Line bridge, and that it was common knowledge that in months prior to this motor vehicle collision, there had been reported incidents of items being thrown from bridges onto highways in Haldimand County, and on the day in question, something thrown from the Sixth Line bridge could have distracted either or both of the drivers involved in the motor vehicle collision. 9 After considering submissions regarding the O’Connor application from the defence counsel and the prosecutor, I found that no nexus could be found which would satisfy me that the information contained in past reported incidents of items being thrown from bridges onto highways in Haldimand County would be “likely relevant” to the case before this court.

Although some witnesses were aware that items had been thrown from bridges onto highways, there was no evidence before the court that any items had been thrown

from the Sixth Line bridge immediately prior to this motor vehicle collision. No witnesses observed any items being thrown, nor was there any physical evidence of items on the roadway, other than what would be expected following a violent collision, such as parts that could be determined to be from both of the motor vehicles. In addition, the OPP officers did not find evidence that any damage had been done to either of the motor vehicle windshields which would be consistent with a falling object.

I advised the prosecutor and the defence counsel that I would not open the sealed envelope containing the OPP reports, as I did not find that this information would be relevant. I also determined that if I found this suggested theory to be relevant, I would then require incident reports that had taken place in Haldimand County from a variety of sources so that every possible cause of the accident could be exhausted.

For example, the Ontario Ministry of Natural Resources could have been required to produce all incident reports of wildlife being hit on roadways and the Ontario Ministry of Agriculture could have been required to provide reports regarding livestock being loose on highways in Haldimand County. I felt that this sort of additional information would also not be relevant to this case, as no evidence of this sort had been provided during the trial.

SUBMISSIONS 10 The defendant’s counsel at the outset of the trial indicated that the defendant would not testify at the trial, as she had no recollection as to what had taken place at the time of the motor vehicle collision. 11 At the conclusion of the trial, the prosecutor argued that in the absence of evidence to the contrary, the court could make a finding, based on the detailed evidence provided by the OPP, which included experts trained in accident reconstruction, that the defendant’s motor vehicle moved from the northbound lane into the southbound lane of the Highway #6 by-pass, resulting in the collision with Mr.

Montague’s motor vehicle. The prosecutor argued that R. v. McIver , 1966 CanLII 6 (SCC) , [1965] O.J. No. 998, ONCA, could allow the court to make a finding that the prohibited act was committed unless the defendant could show that this collision took place without negligence or fault on her part or unless the defendant could successfully provide a due diligence defence. 12 The defendant’s legal counsel argued that reasonable doubt has been raised in a number of areas during the trial. Some of these arguments were as follows:

a) Something could have distracted either driver, causing either driver to veer into the other lane of traffic. This could have included an item being thrown from the Sixth Line bridge;

b) The OPP determined the point of impact to be in the southbound lane of traffic, based on the final resting place of the motor vehicles, plus debris on the highway and a gouge in the pavement in the southbound lane. However, a civilian witness who had not provided a statement to the OPP prior to the laying of this charge testified that she observed both motor vehicle travelling in the northbound lane, then both motor vehicles moved into their respective resting places in the southbound lane;

c) Although the defendant’s motor vehicle may have veered into the southbound lane, a possible explanation could have been that moments prior to this movement, Mr. Montague’s motor vehicle may have veered into the northbound lane;

d) The OPP testified that they obtained a search warrant to examine the defendant’s motor vehicle, including the computerized “black box”, brakes and tires, However, the OPP indicated during the trial that no comparable examination of Mr. Montague’s motor vehicle had taken place in order to determine if his motor vehicle was defective prior to the collision;

e) Although the coroner determined that Mr. Montague was deceased following the motor vehicle collision, the results of a post-mortem were not provided during the trial which would rule out any medical condition as a contributing factor;

f) One civilian witness testified during the trial that the defendant advised him immediately following the motor vehicle collision that Mr. Montague’s motor vehicle had collided with her motor vehicle. At no time during the trial was evidence provided that the OPP had obtained a statement from the defendant immediately following the motor vehicle collision, or when she had been taken to the hospital, or subsequent to her release from the hospital;

g) The OPP decided to charge the defendant with careless driving without obtaining statements from all of the civilian witnesses who may have been able to provide some input into the cause of the motor vehicle collision, although the names of these witnesses had been provided to the OPP immediately following the collision. Some of these witnesses were not interviewed until December 2009, although the collision took place in March 2008;

h) There has been no evidence presented throughout the trial that the defendant’s driving prior to the motor vehicle collision could be found to be careless, as defined by s. 130 of the Highway Traffic Act . AUTHORITES 13 R. v. McIver , is a case dealing with a charge of careless driving in which the defence elected not to call evidence. The Ontario Court of Appeal considered whether, as noted in paragraph 3, there was ’any evidence upon which the Magistrate could base his finding

of guilt. ’ Porter CJO, at paragraph 5 held: “…Upon reading the case stated by the Magistrate, I would conclude that there was evidence from which an inference could be drawn to the effect that the accused was driving carelessly. The juxtaposition of the two vehicles by itself would point to lack of due care and attention on the part of the accused. In addition to this there was evidence described by the Magistrate in the stated case of a number of conditions and surrounding circumstances from which it would appear that unless there were carelessness the collision would not likely have occurred.

There was nothing in the evidence from which a contrary conclusion could be drawn. There was no explanation of the cause of the accident…” In discussing the charge of careless driving in The Law of Traffic Offences (third edition) , [Scott Hutchison, David Rose, Phil Downes, 2009, Carswell, at p.164], the authors provided the following commentary regarding the R. v. McIver decision: “…It is sometimes said in traffic court that in the case of a motor vehicle collision, the prosecutor need only make out a prima facie case of careless driving to secure a conviction.

McIvor is often used in support of this proposition. In our view, this is erroneous and misleading (ref. R. v. Kotar , [1994] O.J. No. 763 Ont. Prov. Ct.). If the prosecutor is to prove the charge, it must still, even in the absence of defence evidence, make out

an act of careless driving beyond a reasonable doubt…” REASONABLE DOUBT 14 Lord Denning in the criminal case of Miller v. Minister of Pensions [1947] 2 All ER 372 , KBD, spoke about proving a case beyond a reasonable doubt: "the…degree of cogency…required in a criminal case before an accused person is found guilty…is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.

If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable', the case is proved, but nothing short of that will suffice". 15 The question of “reasonable doubt” was also addressed by Lord Denning in the case of Bader v. Bader [1951] at pg. 35 (UKCA.).

In his opinion, reasonable doubt should be considered as follows: “…I do not understand how a court can be satisfied that a charge has been proved (and the statute requires that the court shall be satisfied before pronouncing a decree) if, at the end of the case, it has; a reasonable doubt in its mind whether the case has been proved. To be satisfied and at the same time to have a reasonable doubt seems to me to be an impossible state of mind…” DECISION 16 I do not find that the Crown has met the burden of proving all of the essential elements of the case of careless driving as defined by

section 130 of the Highway Traffic Act of Ontario beyond a reasonable doubt. There are numerous instances throughout the trial where conflicting evidence has been presented by witnesses. For example, testimony was given by more than one police officer that a determination was made that the defendant’s motor vehicle must have veered from the northbound lane of the Highway #6 bypass to the southbound lane, based on the final resting place of the motor vehicles, debris on the highway and a gouge in the pavement which was believed to be the point of impact when the two motor vehicles collided.

This led the OPP to attribute this movement by the defendant’s inattention to her driving. However, an eyewitness testified that although she had not seen the actual collision, she observed both of the two motor vehicles travelling in the northbound lane of the highway, moments after the collision had taken place, and then observed both motor vehicles move into the southbound lane. Incidentally, this person was not interviewed by police prior to the OPP’s decision to charge the defendant with the offence of careless driving.

It was also not made clear during the trial why the defendant’s motor vehicle was examined in detail following the collision, but Mr. Montague’s motor vehicle was not examined. No explanation was provided during the trial as to why the OPP had not obtained a statement from the defendant prior to deciding to lay the charge of careless driving, although one witness testified that the defendant advised him at the scene of the accident that Mr.

Montague’s motor vehicle had struck her motor vehicle. 17 As a reasonable doubt remains in my mind regarding whether or not the prosecutor has proven all of the essential elements of the charge of careless driving against the defendant, including the defendant being the cause of the accident that resulted in the tragic death of Mr. Rene Montague, I find the defendant not guilty of this offence.

Released: November 26, 2010 Signed: “Justice of the Peace Dan M. MacDonald”