Durham (Regional Municipality) v. Chicoine, 2011 ONCJ 267

COURT FILE No.: Oshawa 85032456 DATE: 2011·05·19 Citation: Durham (Regional Municipality) v. Chicoine, 2011 ONCJ 267 ONTARIO COURT OF JUSTICE IN THE MATTER OF an appeal under subsection 135 (1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: REGIONAL MUNICIPALITY OF DURHAMAppellant — AND — BRADLEY M. CHICOINERespondent Before Justice G. R. Wakefield Heard on April 20, 2011 Reasons for Judgment released on May 19, 2011 J. Moffatt ........................................................................................................... for the prosecution D.

Petras .............................................................................. for the defendant Bradley M. Chicoine On appeal from an acquittal by Justice of the Peace M. Coopersmith on August 27, 2009. WAKEFIELD, J.: [1] This appeal is focused on the principle in R. v. Beauchamp, (ON CA), [1952] O.J.

No. 495 (C.A.), thata conviction for Careless Driving contrary to s.130 of The Highway Traffic Act requires conduct amounting to a breach of duty to thepublic and deserving of punishment. [2] On January 22nd, 2009, Bradley Chicoine operated a motor vehicle on Simcoe Street North in the City of Oshawawhich was involved in a collision with another vehicle which in turn was being towed by a tow truck.

The collision occurred at 8:18 pmin which there was live traffic in at least the opposite direction. [3] The collision would appear to have been comparatively minor, causing damage to the towed vehicle’s side bumper, thetail light and a dented trunk which could not be opened. The Defendant’s vehicle damage was also minimal and “non-reportable”assuming a repair cost of under $1,000.00. [4] The Defendant drove away from the scene without remaining and was later only charged with Careless Drivingdemonstrating considerable forbearance by the investigating officer.

On that sole charge the Defendant elected to have a trial. [5] At trial, the presiding Justice of the Peace found the Defendant not guilty of Careless Driving, but guilty of the offenceof Pass on the Right, Not in Safety (s. 150 (1) ) as a lesser, included offence pursuant to s. 55 of the Provincial Offences Act . [6] The Defendant appeals from the verdict of guilt on the lesser included offence and the Prosecutor for the RegionalMunicipality cross-appealed the acquittal on the Careless Driving charge. [7] With respect to the Defendant’s appeal, the Prosecutor “concedes that there was insufficient factual basis on the recordbefore the court to find the defendant guilty under s.150 as an included offence.

Further, the parties were not given any opportunity bythe court below to make submissions on the issue of included offences…”. Those concessions by the Prosecutor resulted in heragreement that the Defendant’s appeal be granted and an acquittal is entered regarding the Pass on the Right, Not in Safety offence. [8] As such, my reasons apply solely to a review of the reasons for acquittal by the Justice of the Peace.

As I understandthe Prosecutor’s submissions, the focus of this appeal is to obtain guidance as to how to apply the principle set out in the Beauchampdecision set out in paragraph 21: “… the conduct must be of such a nature that it can be considered a breach of duty to the public anddeserving of punishment. This further step must be taken even if it is found that the conduct of the accused falls below the standard setout in the preceding paragraphs”. [9] I can certainly appreciate the acknowledgement in Beauchamp that the principle may be “difficult to apply”.

Duringsubmissions I asked the Prosecutor which moving violations under The Highway Traffic Act would not arguably be the result of either alack of due care and attention or a lack of reasonable consideration for other persons using the highway, and the Prosecutor could not

think of any. Neither can I. [10] The Prosecutor relies as well on R. v. McIver (ON CA), [1965] 4 C.C.C. 182 (C.A.) and as applied R. v.Pyszko, [1998] O.J. No.1218 (C.J.), however I view each of these cases as applying to the elements of the offence and evidentiary onuson an accused.

I do not read McIver relieving the Prosecutor from proving beyond a reasonable doubt each of the elements of theoffence together with demonstrating that the breach of public duty is deserving of punishment. [11] In my view, the Court of Appeal in Beauchamp is acknowledging the reality of driving a motor vehicle in that each driveron the road possesses different skill sets, and any driver may be exercising those skills differently depending on any number of variablesranging from mild fatigue to momentary distractions from other occupiers of the highway.

The decision also acknowledges that theoffence arises from a “factual standard [that] is a constantly shifting one, depending on road, visibility, weather conditions…. It is aquestion of fact, depending on the circumstances of each case”. [12] The test is not whether greater care or skill would have prevented the incident but what a driver of ordinary care wouldhave used in those particular circumstances (paragraph 19).

In my view culpable conduct would certainly exceed mere momentaryinattention or exceed an error of judgment that the average careful driver might have made in like circumstances. [13] The Beauchamp decision is one which reflects the very question I posed to the Prosecutor as to which moving violationscould not be considered a result of carelessness.

Should an accused, charged with Careless for a “rolling stop” at a stop sign incircumstances in which the Prosecutor proves beyond a reasonable doubt that the offence occurred due to a lack of due care and attentionor without reasonable consideration for other persons using the highway, automatically be convicted of one of the most serious offencesin the Act? [14] Unlike many other offences, Careless Driving carries with it a minimum fine, 6 demerit points, risk of imprisonment andpossible driving licence suspension.

I infer from the severity of punishment that the seriousness of the conduct prohibited should beproportionate. That proportionate seriousness of conduct would be “conduct of such a nature that it can be considered a breach of duty tothe public and deserving of punishment”. An acquittal would still result “even if the conduct of the accused falls below the standard”should that conduct not be deserving of the punishment set out in s. 130 of the Act. [15] Only by this standard can the offence of Careless Driving be differentiated from any other moving violation.

Otherwisewhat moving violation would not be a breach of the reasonable consideration to other users of the highway? [16] The other aspect of the Beauchamp decision is the observation that the level of seriousness of misconduct would behigher than civil liability, as set out in the last line of paragraph 22. [17] Whether the Prosecutor has proven beyond a reasonable doubt a lack of due care and attention or without reasonableconsideration where the seriousness of the conduct exceeds the standard and amounts to a breach of duty to the public will be factuallydriven, depending on the circumstances in each case.

In reviewing a trial decision, a very real deference must be shown to the findingsof fact and, in the case at bar, a real deference must be shown to the presiding Justice of the Peace’s decision that while the Defendant’sdriving was “less than stellar” Her Worship was left in reasonable doubt whether the Defendant’s “conduct constitutes a breach of duty tothe public deserving of punishment in the form of a conviction for Careless Driving. [18] Indeed the Prosecutor fairly concedes that the Justice of the Peace made “clear findings of fact… which were open to thecourt to make.

There appears to be no basis for appellate intervention with respect to Her Worship’s factual findings”. [19] As I understand the issues argued by the Prosecutor, while advocating a conviction due to the Defendant’s failure to showa lack of fault or negligence, there is an acceptance that the conduct must still be one which amounts to a breach of duty to the public anddeserving of punishment.

However that breach of duty is satisfied by just the lack of care and attention in driving. [20] As set out above, I view Beauchamp as requiring the trial judge to first determine if the driving conduct falls below thestandard required of the driver, and if so to consider whether that conduct “is of such a nature that it can be considered a breach of duty tothe public and deserving of punishment”. Conduct which breaches either due care and attention or reasonable consideration might not beculpable conduct so it must still be reviewed to determine whether it amounts to a breach of duty to the public.

Without that assessmentany moving violation has the potential for severe punishment. [21] The Prosecutor also asserts that the Justice of the Peace did not articulate her reasons for determining that the Defendant’sconduct was not deserving of punishment. The transcript was not clear as to the time court started on August 27, 2009, whether 9:00 or9:30 a.m., or if other matters were dealt with prior to submissions being made with respect to testimony heard on July7, 2009.

It is clearthat the submissions took at least some time, and the Justice of the Peace took a short recess to 10:15 to compose findings of fact andreasons for judgment comprising sixteen transcript pages in which the testimony was reviewed carefully and findings of fact made whichare clear and firmly based on the trial testimony while probably working under the pressure of a number of other matters on the docketawaiting the completion of this matter. [22] While not enumerating specific factors giving rise to the decision the Defendant’s conduct was not deserving ofpunishment for Careless Driving, I have no difficulty at all in reading Her Worship’s decision as stating that the Defendant’s conductamounted to Passing on the Right, Not in Safety, as there is an application of the evidence to each of the elements of s. 150(1) of the Act.By inference, I understood Her Worship to mean that the conduct was not such as to amount to a breach of the duty to the publicdeserving of punishment for a Careless Driving but rather a breach of the duty to the public deserving of the punishment for an offencepursuant to a less serious moving violation. [23] In my view the decision made by the Justice of the Peace to acquit on the Careless Driving offence is a reasonable onegiven the factual foundation set out at trial and the application of law as I understand it, and as such should be given due deference.

As Idid not hear submissions on the issue of convicting on lesser included offences and the applicable criteria for such a determination, itwould be inappropriate for me to express any comments.

[ 24 ] It follows that the Prosecutor’s Cross-Appeal is dismissed, with thanks to both Ms. Moffatt and Mr. Petras for their helpful submissions. Released: May 19 th , 2011 Signed: “Justice G. R. Wakefield”