R. v. Veseli, 2015 ONCA 795

Court of Appeal for Ontario

Citation: R. v. Veseli, 2015 ONCA 795
Date: 2015-11-20
Docket: C60376

MacPherson, Tulloch and Pardu JJ.A.

Between

Her Majesty the Queen
Respondent

and

Hamit Veseli
Appellant

Counsel:
Mark Wiffen, for the appellant
Chris Bendick, for the respondent

Heard and released orally: November 19, 2015

On appeal from the decision by Justice D. Terry Vyse of the Ontario Court of Justice dated November 10, 2014, dismissing the appeal from the conviction entered on June 9, 2014 by Justice of the Peace Dan La Caprara of the Ontario Court of Justice.

Endorsement

1This is an appeal, with leave, of the conviction of the appellant, Hamit Veseli, for careless driving under s. 130 of the Highway Traffic Act.

2The appellant was convicted, in absentia, on June 9, 2014 by Justice of the Peace La Caprara of the Ontario Court of Justice. He was fined $490 and received six demerit points, which is a serious concern since he is a taxi driver.

3The appellant appealed to the Ontario Court of Justice. He explained that he had missed the trial because he had lost the trial notice. The Crown did not challenge this assertion. However, Crown counsel argued that because the accident that gave rise to the charge was a rear-end collision, with the appellant being the driver of the following car, there was no defence available to the appellant. Crown counsel said:

With respect to a possible defence to the charge, there is significant number of jurisprudence with respect to a rear end collision and careless driving.

4The appeal judge agreed with the Crown. She said:

No. Oh dear, all right. Well, that doesn’t leave us anywhere positive, Mr. Veseli. I haven’t heard a defence to the charge to cause me to grant your appeal.

I am going to have to dismiss your appeal, Mr. Veseli. I’m sorry. Appeal is dismissed.

5The appellant applied for leave to appeal to this court. LaForme J.A. granted the application in an endorsement dated April 15, 2015. He framed the issue, at para. 11: “The question of law, therefore, is whether the appeal judge, on the record before her, was correct in finding that Mr. Veseli had no defence to the charge.”

6The legal framework for answering this question was set out succinctly and accurately in LaForme J.A.’s endorsement, at para. 10:

Careless driving is a strict liability offence where Crown counsel at trial was required to prove that Mr. Veseli drove without due care and attention. However, if Mr. Veseli could show, on the balance of probabilities, that what was done was without negligence or fault on his part he would avoid conviction. That is, if he were able to show that a reasonable mistake was made, there would be no conviction: see R. v. Kinch, 2004 11464 (ONSC), at para. 57, citing R. v. McIver, 1965 26 (ON CA), [1965] 2 O.R. 475 (Ont. C.A.).

7In our view, there was evidence at the appeal hearing that raises the possibility of a defence to the charge of careless driving. Mr. Veseli said:

I saw the car in front of me. So – and the car pulled over. It gives you not to pull over in the right because the bridge was up. The boat going through. It gives you not to pull over. So he pull over, he change his mind, he come back in the line and I hit in the back.

8Later, the appeal judge asked Mr. Veseli a question about the long line of cars waiting for the bridge and he replied:

Yes, to the bridge because the boat going through and usually take long, you think to go a different route to take, different street. He changed his mind and comes back fast to the line and I hit him in the back.

9In our view, these statements, if converted into testimony at a trial and believed by the trial judge, could provide a defence to the charge. We also note that the appellant did not have a trial on the merits of the charge, the Crown does not challenge his explanation for missing the original trial date, the appellant’s first language is not English, and six demerit points for a taxi driver is a serious concern. In these circumstances, we think that the appellant deserves a trial.

10The appeal is allowed, the conviction for careless driving is set aside, the money paid on the fine should be returned to the appellant, and a new trial is ordered.