R. v. Metni, 2012 ONCJ 134

minicounsel

Court File No.: Halton - Milton 1260-1653805A Date: 2012-03-09 Ontario Court of Justice

Between: Her Majesty The Queen — AND — Julie Maria Metni

Before: Justice of the Peace Kenneth W. Dechert

Heard on: November 17th, 2010 and November 8th, 2011

Reasons for Judgment released on: March 9th, 2012

Provincial Offences Court – Milton, Ontario

Counsel:

A. Senkus for the prosecution
The defendant Julie Maria Metni on her own behalf

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended to October 12th, 2009, ss. 1(1), para. 159(1)(a), ss. 214(1)
Provincial Offences Act, R.S.O. 1990, c. P.33, as amended to October 12th, 2009, ss. 34(3)

Oxford Dictionary of Current English, Third Edition, (2001, Oxford University Press)

INTRODUCTION

1Under Certificate of Offence No. 1260-1653805A, Julie Maria Metni stands charged that she on the 12th day of October, 2009, at Derry Road and Scott Boulevard in the Town of Milton, did commit the offence of "fail to stop on right for emergency vehicle", contrary to the Highway Traffic Act section 159(1)(a).

2On November 17th, 2010, the trial of this charge commenced before me in the Ontario Court of Justice – Provincial Offences Court in Milton, Ontario. At that time, the defendant entered a plea of not guilty to the charge and the trial then ensued before me. As the trial was not completed on November 17th, 2010, it was adjourned for continuation. The trial eventually reconvened on November 8th, 2011, when it was completed. I then reserved judgment on the matter and the proceeding was adjourned to March 9th, 2012, for the delivery of my judgment.

3The prosecution, the City of Burlington, was represented by Ms. A. Senkus. The defendant was self-represented.

RELEVANT STATUTORY PROVISIONS

4The defendant is charged with the offence of "fail to stop on right for emergency vehicle", contrary to the provisions of paragraph 159(1)(a) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended to October 12th, 2009, hereinafter referred to as the "H.T.A.".

5Paragraph 159(1)(a) of the H.T.A., reads as follows:

The driver of a vehicle, upon the approach of a police department vehicle upon which a bell or siren is sounding or upon which a lamp is producing intermittent flashes of red light or red light and blue light, or upon the approach of an ambulance, fire department vehicle or public utility emergency vehicle upon which a bell or siren is sounding or upon which a lamp is producing intermittent flashes of red light, shall immediately bring such vehicle to a standstill,

(a) as near as is practicable to the right-hand curb or edge of the roadway and parallel therewith and clear of any intersection; …

6Subsection 214(1) of the H.T.A. sets forth the proposition that a contravention of any provision of the H.T.A. is an offence, which is subject to a penalty. That subsection reads as follows:

Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided herein, is liable to a fine of not less than $60 and not more than $500.

7The following portions of subsection 1(1) of the H.T.A. are relevant to this proceeding:

In this Act, …

'driver' means a person who drives a vehicle on a highway;

'fire department vehicle' includes an emergency crash extrication vehicle owned and operated by a rescue organization approved by the Minister in writing for the purposes of this Act and a vehicle designated in writing by the Fire Marshall of Ontario as a fire department vehicle;

'highway' includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;

'intersection' means the area embraced within the prolongation or connection of the lateral curb lines or, if none, then of the lateral boundary lines of two or more highways that join one another at an angle, whether or not one highway crosses the other;

'roadway' means the part of the highway that is improved, designed or ordinarily used for vehicular traffic, but does not include the shoulder, and, where a highway includes two or more separate roadways, the term 'roadway' refers to any one roadway separately and not to all of the roadways collectively;

'vehicle' includes a motor vehicle, trailer, traction engine, farm tractor, road-building machine, bicycle and any vehicle drawn, propelled or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle or street car.

8In addition to the foregoing provisions, subsection 34(3) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended to October 12th, 2009, hereinafter referred to as the "P.O.A.", is relevant to this proceeding. That subsection reads as follows:

A variation between the information or certificate and the evidence taken on the trial is not material with respect to,

(a) the time when the offence is alleged to have been committed, if it is proved that the information was laid or the certificate issued within the prescribed period of limitation; or

(b) the place where the subject-matter of the proceeding is alleged to have arisen, except in an issue as to the jurisdiction of the court.

THE ISSUES

9In this proceeding, the defendant is charged with an offence under paragraph 159(1)(a) of the H.T.A. That section is contained within Part X of the H.T.A., which sets forth "Rules of the Road" offences.

10In its decision in Regina v. Raham, 2010 ONCA 206 (Ont. C.A.), the Ontario Court of Appeal determined that offences created by Part X of the H.T.A. are "properly regarded as public welfare offences" and that based on the methodology for the classification of offences established by the Supreme Court of Canada in Regina v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299; (1978), 40 C.C.C. (2d) 353 (S.C.C.), such offences are "prima facie strict liability offences".

11In Regina v. Sault Ste. Marie, supra, the Court determined that public welfare offences are not subject to the "presumption of full mens rea". The Court stated that such offences are presumptively offences of strict liability, whereby the "doing of the prohibited act" (the actus reus), "prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care". In reaching this conclusion, however, the Court acknowledged that public welfare offences could properly be classified as offences of absolute liability "where it is not open to the accused to exculpate himself by showing that he was free of fault". The Court went on to state that "offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof of the proscribed act".

12In its decision in Lévis (City) v Tétreault; Lévis v. 2629-4470 Québec Inc., [2006] 1 S.C.R. 42 (S.C.C.), the Supreme Court of Canada stated that while absolute liability offences still exist, "they have become an exception requiring clear proof of legislative intent".

13One of the factors set out in Sault Ste. Marie, supra, to be considered in an analysis as to whether an offence should be classified as one of absolute liability is that of the precision of the language used in the text of the statutory provision creating the offence. In Lévis v. Tétreault, supra, the Court stated that the wording of the statute itself would be the most important factor relative to the other factors indicative of absolute liability, cited in Sault Ste. Marie.

14In examining the text of paragraph 159(1)(a) of the H.T.A., I find that the language contained therein is not sufficiently precise so as to properly classify the offence as one of absolute liability. In my view, the phrase "shall immediately bring such vehicle to a standstill, as near as is practicable to the right-hand curb or edge of the roadway and parallel therewith and clear of any intersection", contained within paragraph (a) of the subsection, may be interpreted as establishing an imprecise standard in respect of how a driver would be expected stop his/her vehicle upon the approach of an emergency vehicle. I am of the view that the language used to create the offence, in particular the imprecise language used in the aforesaid phrase can, as stated by the Court in Regina v. Raham, supra, "reasonably admit of a due diligence defence".

15For the reasons stated above, I find that the language of the subject offence fails to provide clear proof that the Legislature of the Province of Ontario intended the subject offence to be classified as one of absolute liability. The presumption in favour of the categorization of this public welfare offence as one of strict liability has not been rebutted.

16The subject offence is, in my view, properly classified as a strict liability regulatory offence. Accordingly the prosecution need only prove that the defendant committed the actus reus of the offence (the prohibited act) to the standard of proof beyond a reasonable doubt. If the prosecution is able to meet its onus of proof in this regard, then the mental element of negligence is presumed and the defendant will be found guilty of the offence unless she is able to show, in committing the offence, that she took all reasonable care. This concept is known as the defence of due diligence. If the defendant establishes the defence of due diligence, she is entitled to be acquitted of the subject offence.

17In his decision, written on behalf of the Court, in Sault Ste. Marie, supra, Dickson J. (as he then was) defined the defence as involving "a consideration of what a reasonable man would have done in the circumstances". He went on to state that "the defence will be available if the accused reasonably believed 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 the particular event".

18In applying the foregoing principles of law, the issues in this proceeding are as follows:

whether the prosecution has proven that the defendant committed all of the elements of the actus reus of the subject offence, beyond a reasonable doubt; and
if the prosecution has discharged its burden of proof in respect of the actus reus, whether the defendant has proven on a balance of probabilities, that in committing the actus reus, she exercised due diligence by either acting on the basis of a reasonable mistake of fact or by taking all reasonable steps to avoid the particular event.

THE EVIDENCE

19During the course of the trial proceedings of November 17th, 2010, I received verbal evidence from Police Officer Mina Daif, tendered on behalf of the prosecution as well as from the defendant.

(i) The Testimony of Police Officer Mina Daif

20During his examination-in-chief, Police Officer Daif testified that he was a police officer with the Halton Regional Police Service and had been so employed since August 2007. He testified with the use of his investigative notes to refresh his memory that on the 12th day of October, 2009, he was working in his capacity as a police officer in the Town of Milton. He advised that at approximately 9:45 a.m. on that date, he was standing at the northwest corner of Derry Road and Bronte Street in the Town of Milton, speaking with a motorist at the side of the road. The officer stated that at that time, his attention was drawn to a location east of his position on Derry Road, by the sound of a siren of an emergency vehicle.

21Officer Daif testified that upon hearing the siren, he had occasion to observe a fire truck travelling in a westerly direction in the left lane of Derry Road, from the area of the intersection of Derry Road and Santa Maria Boulevard towards his position at the intersection of Derry Road and Bronte Street. He stated that when he first observed the fire truck it was located approximately 300 to 400 metres away from his position at the northwest corner of the said intersection. He stated that in addition to hearing the incessant sound of the siren emanating from the fire truck, he observed that the "strobe, white and red" emergency lights of the fire truck were activated as it was travelling on Derry Road towards his location.

22Officer Daif testified that as he observed the fire truck travelling in the left westbound lane of Derry Road, with its emergency lights on and with its siren sounding, he had occasion to notice the presence of a silver-coloured motor vehicle travelling in the same lane "directly ahead" of the fire truck. He stated that he observed the silver motor vehicle continue to travel in a westerly direction in front of the fire truck until both vehicles approached the intersection of Derry Road and Bronte Street. He noted that while the silver vehicle continued to travel in a westerly direction on Derry Road through the said intersection, the fire truck moved into the left-hand turn lane to execute a left turn and then proceed in a southerly direction on Bronte Street.

23Officer Daif testified that there were two westbound lanes of traffic on Derry Road over the relevant portion of that highway. He advised that as the silver motor vehicle was travelling in the left, westbound lane in front of the fire truck, approaching the said intersection, it did not "at any time make a lane change to the right, nor pull over to the right", to let the fire truck move ahead of it.

24The officer testified that as the driver of the motor vehicle travelled through the said intersection, he signalled to its female driver to pull over to the side of the road. The officer advised that the driver complied with his direction and pulled over to the right side of Derry Road, west of its intersection with Bronte Street, "just metres west of where he was standing". He advised that as he began walking towards the motor vehicle to speak with its driver, it drove off in a westerly direction on Derry Road.

25Officer Daif stated that at that point in time, he immediately ran back to his police cruiser, followed the motor vehicle as it travelled westbound on Derry Road and eventually pulled the vehicle over at the intersection Derry Road and Scott Boulevard, in the Town of Milton. The officer testified that he then approached the vehicle and advised its driver of the reason for the traffic stop. The officer advised that he then issued provincial offences notice #1653805A to the driver for the offence of fail to stop on right for emergency vehicle.

26During his testimony-in-chief, Officer Daif identified the defendant as the driver of the silver motor vehicle that he pulled over at the intersection of Derry Road and Scott Boulevard. He stated that the driver identified herself by means of a valid Ontario driver's licence in the name of Julie Maria Metni.

27In answer to further questions posed by the prosecutor, Officer Daif reiterated that when he first heard the fire truck siren and looked in an easterly direction down Derry Road, the fire truck was located approximately 300 to 400 metres east of the intersection. He stated that when he first noticed the fire truck it was travelling in the left, westbound lane of Derry Road behind the vehicle being operated by the defendant, by a distance of approximately six to seven metres. He stated that he could not recall the defendant ever making a lane change from the left lane to move out of the way of the fire truck.

28In answer to the prosecutor's question as to whether there was any traffic in the area where the defendant was travelling in the left lane in front of the fire truck, the officer replied that there was light traffic in the area at the time. He advised, however, that at the material time, he could not recall seeing any vehicles travelling in the right lane of Derry Road. Furthermore, he testified that he could not recall the existence of anything which would have prevented the defendant from moving her vehicle from the left lane to the right lane of Derry Road.

29During the course of his testimony, the officer estimated that, at the material time, both the fire truck and the vehicle being driven by the defendant were travelling on Derry Road, at a rate of speed of between 60 and 70 kilometres per hour.

30Officer Daif described the siren that he heard as an "emergency siren" which originated from the fire truck. He advised that he could not recall hearing any other noise coming from the area east of his location. He stated that the siren continued to sound during the entire time, from the time when he first observed the fire truck until the time that it turned left off of Derry Road onto Bronte Street. The officer testified that the six to seven metre distance between the rear bumper of the defendant's vehicle and the front of the fire truck, "did change a little bit" as the fire truck slowed down to make the left turn.

31In further describing the incident where he attempted to speak to the defendant on the west side of the intersection of Derry Road and Bronte Street, Officer Daif testified that as he was in the process of walking to the vehicle being operated by the defendant, the defendant proceeded to travel away from its stopped position in a westerly direction on Derry Road. The officer stated that he then ran to his police vehicle, followed the defendant and eventually stopped her. He stated that other than a period of approximately one-second when he turned around to run to his police cruiser, he never lost sight of the defendant's vehicle from the time that he first noticed it on Derry Road travelling in front of the fire truck, until the time that he stopped the vehicle at the corner of Derry Road and Scott Boulevard.

32In answer to the prosecutor's question as to how long it took for the fire truck, travelling behind the defendant's vehicle over the subject 300 to 400 metre stretch of Derry Road, to reach Bronte Street, the officer stated that while he couldn't be certain, "it must have been under a minute".

33In concluding his examination-in-chief, Officer Daif engaged in the following question and answer exchange with the prosecutor:

Q: Was there anything that you could observe that would have prevented, or would have caused the defendant, if she had pulled to the right, that would have blocked an intersection, or been too close to an intersection?

A: If the defendant chose to stop to the right?

Q: If the defendant had, yes, moved to the right and stopped, would she have possibly blocked an intersection, or been too close to it?

A: No, she had a chance to pull over to the right, prior to approaching Bronte Street.

34During cross-examination, the defendant asked Officer Daif if at the time that he signalled her to pull over on the west side of the intersection of Derry Road and Bronte Street, there were any other cars which pulled over to the side of Derry Road behind her. The officer replied to this question by indicating that he could not recall if he saw other cars.

35The defendant then asked the officer if he was in a bad mood when he pulled her over the second time at the intersection of Derry Road and Scott Boulevard, suggesting to him that he was "quite angry" with her. In responding to this question, the officer stated that he could not recall what his mood was like at that time.

36During cross-examination, the officer reiterated his testimony-in-chief that once the fire truck reached Bronte Street, it made a left turn to proceed in a southerly direction on Bronte Street. The defendant then asked the officer if he saw another fire truck in the relevant area that morning. In posing this question, the defendant remarked that there was another fire truck which "passed us on Bronte when I pulled over, because that is what I saw". The officer responded to that question by stating that he could not recall seeing another truck which "passed us". In answer to the defendant's question as to what point in time the fire truck moved from the left westbound lane of Derry Road into the left-hand turn lane thereby escaping the blockage of her vehicle, Officer Daif replied, "I'm not sure".

37In reference to the issue as to whether there was a fire truck which may have passed the location of the defendant as she was pulled over at the right side of Derry Road, just west of its intersection with Bronte Street, the defendant and Officer Daif engaged in the following question and answer exchange:

Q: You said it took less than a minute for my vehicle to go from one street before Bronte to Bronte. You were on foot, how could you have seen all of this happening in less than a minute, on foot, while talking to another vehicle, another person in a vehicle?

A: When I was talking to the driver of the other vehicle, as soon as I noticed the siren and gave my attention towards the fire truck, I stopped talking with the other driver. I did not continue talking to her.

Q: Okay.

A: To clarify my answer to you, my direction was – sorry, my attention was directed towards that fire truck with the emergency lights and siren.

Q: At what point in that less than a minute period did you see the truck turn left, south, on Bronte?

A: The truck turned southbound on Bronte as soon as it could. When I was previously asked by the Crown, 'How long did it take for the truck to reach that point', I said approximately under a minute. I wasn't sure, but that's my personal approximation. … So to answer your question, 'At what point', that would have been at the end of that time limit, because that was the Crown's question; 'How long did it take for the truck to reach the intersection of Bronte and Derry' and I said approximately under a minute. So for the truck to turn left, it would have been at the end of that time period.

Q: Do you have any other witness or evidence, other than your notes, that in fact that truck did turn left on Bronte, or that there were no other trucks on the road that day?

A: I don't have any other witnesses, no. I was the only officer present at that time.

38During re-examination, Officer Daif testified that the westbound lanes of Derry Road at its intersection with Bronte Street were, at the relevant time, comprised of a right lane, a left lane and a left-turn lane for purposes of turning in a southerly direction on Bronte Street.

39At this time, Officer Daif reiterated his testimony during cross-examination that he was unsure as to when the fire truck moved from the left lane of Derry Road at Bronte Street into the left-turn lane, prior to making the left turn at the intersection.

(ii) The Testimony of the Defendant

40At the outset of her testimony-in-chief, I asked the defendant the following question: "what would you like to tell the Court with regard to this matter?". In response to this question, the defendant stated "I would like to say exactly what happened, from the inside of my vehicle". The defendant then testified that she was driving in a westerly direction on Derry Road on the way to her job at "Spring Ridge Farm". She stated that at that time there were other vehicles on the road, "roughly, between three and ten".

41The defendant testified that she "did see the truck first in the left lane", noting that she kept looking in her rear view mirror to make sure that the truck wasn't trying to get past her. In this regard, I am able to reasonably infer that the truck that the defendant was referring to in her testimony was a fire department truck.

42The defendant went on to state that at the point in time when she first noticed the presence of the fire truck, she estimated that it was located approximately 500 to 1000 metres behind her, noting that she could still see the truck in her mirror. In this regard, she stated that she was just checking her rear-view mirror to make sure that the truck "wasn't too close".

43The defendant testified that after she first noticed the presence of the truck in the left lane, approximately 500 to 1,000 metres behind her, she continued to drive her vehicle in a westerly direction on Derry Road, noting that while she could not remember exactly, she believed that she passed through "at least one or two intersections" before "getting to" Bronte Street. She then stated as follows:

…I kept looking in my mirror. All I could see were other cars behind me, so I thought the truck must have turned left or gone a different way, because I could not hear it. … Okay, and clearly I could not see either whether the lights were flashing or not, because there were other cars immediately behind me.

44The defendant testified that when she "passed the intersection of Bronte", the officer was located on the shoulder "on the right side of the road". She advised that as she was approaching the officer, he "waved" for her to pull over. The defendant stated that she then complied with the officer's direction, pulling her vehicle over behind another car which the officer had stopped. She indicated that after she had pulled her vehicle over in compliance with the police officer's direction, she looked to her left, checked her blind spot, looked in her rear-view mirror and then turned around to look behind her. At this time, she noticed the presence of other cars "pulled up behind [her]" on the shoulder of Derry Road.

45The defendant testified that "about a full 20 to 30 seconds" after she had pulled her vehicle onto the shoulder of Derry Road, she observed the fire truck pass her, "still going westbound on Derry, past Bronte". The defendant then stated as follows:

So, I'm pretty confused as to which truck he saw turning left on Bronte, because I know one passed us. I don't remember if there were the lights on, but I do know the siren was not on, because I definitely would've heard it.

46The defendant continued her testimony-in-chief as follows:

…so the fire truck passes, and I look in my rear view mirror, and I see the people who are pulled over behind me, they've now turned back on the road, and are continuing. …so they pull back out to the road, and I do the same, because the truck has passed, and to my knowledge nothing has gone wrong, it's continuing to its business. I cannot say if the officer was at his vehicle or the person who was already pulled over, but I know that if he was walking over to my vehicle, I probably would have hit him, trying to get out of the shoulder, because he would've been in my way. …so if I had seen him walking over, I would have stopped, because obviously he would have wanted to speak with me. And I wouldn't have kept going if he was on his way over.

47The defendant completed her testimony-in-chief by stating that after she pulled back onto Derry Road, from its shoulder, she continued to drive on Derry Road, when the officer pulled her over "the second time". The defendant advised that upon being stopped, the officer stated that she was running away from him. The defendant went on to state that at this point in time the officer proceeded to lecture her as to consequences of "stalling" the progress of a fire truck. She felt that the officer was rude during the course of his interaction with her prior to issuing the "ticket" to her.

48In this regard, the defendant made the following comments with respect to her state of mind at the time of her interaction with the police officer:

I am a sensitive person. I do get upset, mainly because – not because I had to pay another ticket, or whatever it was, but I had been in an irrelevant accident a few days prior, so this wasn't how I wanted to spend my Thanksgiving. I already didn't want to drive in the first place. I was still shocked and shaken from it. Might I mention that I do have multiple sclerosis, so the stress levels don't help my condition, so I was freaking out. I called my mom in a mess, and I had to call my boss as well, to tell her that I was going to be late. …

49During cross-examination, the defendant reiterated her testimony-in-chief that on the day in question she was driving a motor vehicle westbound on Derry Road, when she saw a fire truck travelling on Derry Road approximately 500 to 1,000 metres behind her. The prosecutor then asked the defendant whether she thought that she was more than 1,000 metres east of the intersection of Derry Road and Bronte Street, when she first saw the fire truck. She replied that she might have been at the intersection of Santa Maria Boulevard at the time when she first saw the fire truck, but that she wasn't sure of that fact as she was not looking at the street name.

50In response to the prosecutor's question as to whether she was familiar with the portion of Derry Road where she saw the fire truck, the defendant replied "relatively", noting that at the relevant time she was driving back and forth to her job. In attempting to explain her inability to specifically advise as to the lane she was in when she observed the fire truck behind her, the defendant made the following comments:

A: I mean, I switch lanes a lot, because as I told you earlier, I'm a little claustrophobic on the road. I don't like cars too close to me, so if there is space, I do move, so I can't be specific as to which lane I was in, but I was constantly moving.

Q: From lane to lane?

A: Yes, respecting other vehicles on the road.

51In making reference to the defendant's testimony-in-chief when she stated that initially she saw the fire truck travelling in the left lane of Derry Road, approximately 500 to 1,000 metres behind her, the prosecutor asked the defendant when was the last time that she looked in her rear-view mirror prior to arriving at Bronte Street. The defendant responded to this question by stating that it was her habit to look in her rear-view mirror every time she crossed an intersection. She went on to state that she looked in her rear-view mirror when she crossed Bronte Street heading in a westerly direction on Derry Road, as she did when she was crossing every other intersection. In response to the prosecutor's query as to whether, on this occasion, she looked in her rear-view mirror when crossing the various intersections on Derry Road east of Bronte Street, the defendant stated that she couldn't be sure.

52During the course of cross-examination, the prosecutor asked the defendant a number of questions pertaining to her state of mind at the material time. In this regard, the defendant acknowledged that when she was leaving home in the morning of October 12th, 2009, (Thanksgiving Day), she was upset because she had been involved in a motor vehicle accident a few days earlier. She stated that even though she was nervous about driving at that time, she noted that her skills were good and that she had driven on a few occasions between the date of the said accident and October 12th, 2009.

53In response to a question as to whether during the time that she was travelling on Derry Road she was playing any music in her car, the defendant replied as follows:

"I might've had the radio or a CD on, but I never belt it … I never like turn it up more than I need to. My ears are actually, like I hate loud music."

She stated that at the material time all of the windows of her car were "up all the way", noting that it was cold out.

54The defendant testified that she was familiar with the sound of a siren, because she used to live in Rexdale and in Scarborough, where such sounds were quite prevalent. She agreed with the prosecutor's suggestion that a siren could be quite loud and could be heard by a person sitting in a vehicle with its windows rolled up. In this regard, the defendant stated that if the fire truck in question was directly behind her at the material time, as the police officer asserted, she definitely would have heard the siren and she would have seen the fire truck, remarking that it is a "big red truck".

55In response to the prosecutor's suggestion that the last time she would have checked her rear-view mirror while travelling in the westbound lanes of Derry Road, prior to reaching its intersection with Bronte Street, would have been at the intersection of Derry Road and Santa Maria Boulevard, the defendant disagreed, stating that she checked her rear-view mirror prior to crossing Bronte Street. In response to a follow-up question as to why she would check her rear-view mirror at that point in time, the defendant testified as follows:

I just – I'm paranoid. That's just what I do. I kept checking, in fact, to make sure the truck wasn't directly behind me, because I wasn't sure where it had gone as I was driving down Derry. Like, I did see it behind me. I wasn't sure where it was, because I can only see cars behind me, so I thought it had just kept going on its way. I didn't know exactly where it was.

56During cross-examination, the defendant testified that she first noticed the police officer on the side of the road, when she passed through the intersection of Derry Road and Bronte Street. She then reiterated her testimony-in-chief that when she was stopped on the shoulder of Derry Road, just west side of its intersection with Bronte Street she saw a fire truck, which was not sounding a siren, pass her location. When the prosecutor asked the defendant whether that truck was the same truck that she had observed earlier, the defendant stated as follows:

It must've been. It could've not been, but I don't think the officer was sure if there were any other fire trucks on the road. There's always a possibility, but as far as I know, it's the only one I saw.

57The prosecutor then questioned the defendant in respect of the traffic which she observed on the subject portion of Derry Road at the material time. That question and answer exchange proceeded as follows:

Q: You then say that there were about three or ten cars on the road, and are these cars behind you, in front of you, beside you, where are they?

A: Well, there's some in front of me. There's a few behind me to my left and right. Some might've turned left, some might've turned right. There was traffic, not heavy traffic, but there were vehicles on the road.

Q: Did you see more to your right, more vehicles to the right of you, would you agree with that?

A: I couldn't be sure. I know there were probably almost equal amount of vehicles in either lane.

Q: And then you say that as you're pulling over, you're just west of Bronte, the vehicle behind you also pulled over.

A: They followed my lead. I guess they noticed there was a truck behind…

Q: You're assuming they followed your lead. You don't know that they're pulling over because of you, correct?

A: Oh, yes. I mean, I assume – I can only assume they saw the fire truck behind them and pulled over, as I pulled over, to let the fire truck go.

Q: Well, why would they pull over if the sirens were not on, as you said?

A: Probably because I pulled over they thought they should do the same. …

58In response to the prosecutor's question as to whether there were any cars stopped on the right shoulder of Derry Road before she pulled off on to that shoulder, the defendant replied that there was the officer's cruiser and another vehicle.

59In response to the prosecutor's question to the defendant as to whether she took steps to make a written record of the circumstances of the subject event "right after the incident", the defendant responded that she could not recall doing that. She acknowledged that she did not have any notes with respect to the subject incident with her at the time of her testimony.

60In concluding her cross-examination of the defendant, the prosecutor focussed on the circumstances of the alleged incident, after the defendant had driven through the intersection of Derry Road and Bronte Street. The question and answer exchange at this point in time proceeded as follows:

Q: …I take it what you're doing now is - is the officer pulled you over?

A: Mmhm.

Q: Did you know why you were being pulled over, why the officer was specifically focusing his attention on you?

A: Not until he walked up to my vehicle and said, 'Why did you run away from me'.

Q: Okay, eventually did you realize that he was stopping you because of the fire truck?

A: Yes, they did explain that.

Q: And at that point are you going back in your memory as to what happened?

A: I am, and I was shocked, because the truck wasn't directly behind me at all.

Q: Okay, and that's – you're not sure what lane you are in at this point, because you're changing lanes a fair amount.

A: Well, I obviously had to change into the right lane to pull into the shoulder if I was in the left lane to begin with, so, yes, I can't be certain which lane.

Q: But that's after you're already passed through Bronte…

A: Yes.

Q: …that you're changing lanes to pull over.

A: Unless of course I was in the right lane to begin with, but again, I can't be sure.

Q: And you never noticed the police vehicle at the side of the road before you reached Bronte?

A: I did. I must've seen his cruiser, yes.

Q: I'm sorry, you said you must have?

A: I – okay, I mean, I did see his cruiser. I knew there was an officer there.

Q: First you said you must have; now you're saying you did, which is it?

A: What – which – can you repeat the question?

Q: Before you reached Bronte, did you not notice a police cruiser on the shoulder of the road, west of Bronte?

A: Okay, when I said 'must have', I mean I probably did, because it is a cruiser and I look out for those things, because it is an emergency vehicle.

Q: But you don't have an independent recollection, 'Oh yes, when I was 200, 300 metres away from Bronte I saw that cruiser'?

A: I can't know for sure.

Q: Okay.

A: Because I could've been watching people beside me, people in front of me.

ANALYSIS

Has the prosecution proven that the defendant committed the actus reus of the subject offence, beyond a reasonable doubt?

61In this proceeding, the defendant is charged with the offence of "fail to stop on right for emergency vehicle", contrary to paragraph 159(1)(a) of the H.T.A. The subject certificate of offence states that the offence took place on October 12th, 2009 at 9:45 a.m., at Derry Road and Scott Boulevard in the Town of Milton.

62The relevant portions of paragraph 159(1)(a) of the H.T.A., read as follows:

The driver of a vehicle,… upon the approach of [a]… fire department vehicle… upon which a bell or siren is sounding or upon which a lamp is producing intermittent flashes of red light, shall immediately bring such vehicle to a standstill,

(a) as near as practicable to the right-hand curb or edge of the roadway and parallel therewith and clear of any intersection; …

63According to the Oxford Dictionary of Current English, Third Edition, (2001, Oxford University Press), the word "approach", as a verb is defined, in part, as "come near to in distance, time or quality". In defining the said word as a noun, the said dictionary defines the word as follows: "1. a way of dealing with something, 2. an initial proposal or request, 3. the action of approaching and 4. a way leading to a place".

64The theory of the prosecution in respect of the subject charge, based upon the testimony of Police Officer Daif, is that the defendant committed the subject offence at the stated time, when she was operating her vehicle in the left, westbound lane of Derry Road, over the stretch of that highway beginning at a location approximately 300 to 400 metres east of the intersection of Derry Road and Bronte Street and ending at the eastern boundary of that intersection, in the Town of Milton.

65While I acknowledge that the subject certificate of offence describes the offence as having taken place at Derry Road and Scott Boulevard, in the Town of Milton, I am of the view that the variance between this allegation relative to the place of the offence and the totality of the evidence received during the trial herein does not affect the validity of the certificate of offence.

66In reaching this conclusion, I note that there is no dispute between the parties that the relevant portion of Derry Road, east of its intersection with Bronte Street, is located within the boundaries of the Town of Milton. Accordingly, there is no issue as to the jurisdiction of this Court; that being the Ontario Court of Justice, Provincial Offences Court for the Regional Municipality of Halton, to try this matter. Furthermore, the provisions of paragraph 34(3)(b) of the P.O.A., are germane to this issue. That paragraph reads as follows:

A variance between the information or certificate and the evidence taken on the trial is not material with respect to,

(b) the place where the subject matter of the proceeding is alleged to have arisen, except in an issue as to the jurisdiction of the court.

67Accordingly, the effect of that statutory provision relative to the proceeding at bar, is that the variance between the contents of the certificate of offence herein and the evidence taken on the trial of the proceeding, in respect of the place within the Town of Milton where the alleged offence took place, is not a material issue and has, therefore, no effect on the validity of the charge itself.

68Based on the undisputed evidence before me, I am of the view that the following elements of the actus reus of the subject offence have been established beyond a reasonable doubt:

(i) that on the 12th day of October, 2009 at approximately 9:45 a.m., the defendant was driving a motor vehicle in the left, westbound lane of Derry Road, between its intersection with Santa Maria Boulevard to the east and its intersection with Bronte Street to the west, in the Town of Milton; and

(ii) that during this period of time, when the defendant was travelling over the said portion of Derry Road, east of the easterly boundary of its intersection with Bronte Street, she did not bring her vehicle to a standstill;

69There is conflicting evidence before me as to the issue of whether at the material time, when the defendant was driving her motor vehicle in a westerly direction over the subject portion of Derry Road, specifically the section of that highway beginning at a point distant approximately 300 to 400 metres east of the Derry Road/Bronte Street intersection and ending at the eastern boundary of that intersection, a fire department vehicle upon which a bell or siren was sounding or upon which a lamp was producing intermittent flashes of red light had approached the defendant's motor vehicle from behind. If I find, beyond a reasonable doubt, that at the material time a fire truck, with its siren sounding or its emergency red lights flashing, had approached the defendant's vehicle, then the defendant would have been required to immediately bring her vehicle to a standstill as near as is practicable to the right-hand curb or edge of the roadway and parallel therewith and clear of any intersection. On the other hand, if I find that the prosecution has failed to prove, beyond a reasonable doubt, the existence of such a fire department vehicle approaching the rear of the defendant's vehicle at the material time, then the defendant would not have been required to immediately stop her vehicle in the manner prescribed by paragraph 159(1)(a) of the H.T.A.

70In his testimony, Police Officer Daif unequivocally asserts that at the material time, a period of under one minute, the defendant was driving in the left, westbound lane of Derry Road, approaching its intersection with Bronte Street, while she was being followed by a fire truck with both its siren sounding and its emergency lamps producing intermittent flashes of red light, by a distance of approximately 6 to 7 metres.

71Officer Daif testified that he made this observation as the defendant's vehicle was travelling on Derry Road towards the eastern boundary of the Derry Road/Bronte Street intersection, beginning at a location on Derry Road approximately 300 to 400 metres east of the intersection. He testified that at the time when the defendant's vehicle was being closely followed by the fire truck, the defendant failed to take any steps to stop her vehicle, but rather continued to travel in a westerly direction through the said intersection.

72Officer Daif stated that once the defendant had crossed through the intersection, she pulled over to the right side of the westbound lanes of Derry Road, in compliance with his direction in that regard. He noted that once the fire truck reached the westbound left-turn lane at the subject intersection, it moved into that turn lane and made a left turn from westbound Derry Road onto southbound Bronte Street.

73On the other hand, the defendant denies the allegation that she failed to stop for an emergency vehicle, to wit: the alleged fire department vehicle in accordance with paragraph 159(1)(a) of the H.T.A. In this regard, she testified that while she was aware of a fire truck travelling in the left, westbound lane of Derry Road at the material time, it was located approximately 500 to 1,000 metres east of her position in the said lane.

74The defendant disputes the allegation that as she was travelling within a distance of 300 to 400 metres east of the Derry Road/Bronte Street intersection, a fire truck with its siren sounding or with its emergency lamps producing intermittent flashes of red light had approached the rear of her vehicle by a distance of 6 to 7 metres. In fact, the defendant submits that despite her efforts to determine the location of the fire truck by looking in her rear-view mirror, she was unable to ascertain the location of the fire truck. The defendant asserts that if a fire truck had been closely following her at the relevant time, she would have been aware of its presence as she would have seen it in her rear-view mirror or she would have heard the siren of the emergency vehicle; a sound of which she was familiar.

75In short, the defendant through her exculpatory evidence submits that she was not required to bring her motor vehicle to a standstill in the manner prescribed by paragraph 159(1)(a) of the H.T.A., because a fire department vehicle had not approached her vehicle while she was driving on Derry Road, approaching its intersection with Bronte Street. She states that she did not see the fire truck. She argues that her evidence in this regard should be accepted, thereby raising a reasonable doubt as to the issue of the existence of the alleged fire department vehicle approaching her vehicle at the material time.

76This is a case where the issue of credibility is important. Accordingly, I must undertake an assessment of the credibility of the witnesses in this proceeding.

77When I embark on such an assessment, I must remind myself that the concept of reasonable doubt applies to the assessment. Furthermore, I must remind myself that the determination of the defendant's guilt must not be based on a simple credibility contest between the prosecution and defence witnesses. This proposition of law was established by the Supreme Court of Canada in the case of Regina v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.). In his decision in that case, at paragraphs 26, 27 and 28, Cory J. explained how credibility is to be assessed, as follows:

…It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole.

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit;

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit;

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

78In her decision in Regina v. C.L.Y., 2008 SCC 2 (CanLII), [2008] 1 S.C.R. 5 (S.C.C.), written on behalf of the majority of the Court, Abella J. made the following comments respecting the application of the model jury instructions pertaining to the issue of credibility, articulated in Regina v. W.(D.), supra:

It is noteworthy that in W.(D.) itself, despite the trial judge's error in instructing the jury that they were engaged in a credibility contest, the conviction was upheld. This of course does not give trial judges licence to wrongly analyse credibility issues, but it does serve to remind that what W.(D.) offered was a helpful map, not the only route. Its purpose was to ensure that triers of fact – judges or juries - understand that the verdict should not be based on a choice between the accused's and the Crown's evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused's guilt. …

79In their decision in Regina v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 (Ont. C.A.), Simmons, Armstrong and Rouleau JJ.A., provided the following direction as to the proper application of the principles enunciated in W.(D.), supra:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of the Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in doing so comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

80In his decision in Regina v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 (S.C.C.), Cory J. defined the term "reasonable doubt" as follows:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

81The said jurist went on to state that even if a trier of fact believes that an accused is probably guilty or likely guilty, that is not enough to find an accused person guilty of an offence. He remarked that in those circumstances it is incumbent on the trier of fact to give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy the trier of fact of the guilt of the accused beyond a reasonable doubt.

82Mr. Justice Cory commented that a trier of fact must also remember that it is virtually impossible to prove anything to an absolute certainty, noting that such a standard of proof is impossibly high and the Crown is not required to meet such a standard.

83In my view, Officer Daif presented his evidence pertaining to his observations of the actions of the defendant's vehicle at the material time, in a clear, concise and unequivocal manner. He was aided in his memory by his investigative notes, which were made contemporaneously with the time of the subject incident. His testimony was both detailed and internally consistent and the strength of his account of the relevant events was not diminished through cross-examination. In my view Officer Daif presented as a credible witness.

84Furthermore, in my view Officer Daif's evidence may be properly characterized as reliable. He made his observations of the actions of the defendant's vehicle and the fire truck travelling behind the vehicle from his standing position at the northwest corner of the intersection of Derry Road and Bronte Street. As he was on foot at the relevant time, he was able to clearly hear the sound of a fire truck siren, emanating from a location east of his standing position at the corner of the intersection. As he stated in his testimony, it was the sound of the siren which drew his attention to the stretch of Derry Road to the east of the said intersection. At that point in time he focussed on the actions of the fire truck travelling in the left, westbound lane of Derry Road. In doing so he concentrated on the actions of the defendant's vehicle, which he observed to be situated in the said westbound lane, a distance of only approximately 6 to 7 metres in front of the fire truck.

85Officer Daif was able to unequivocally recount the actions of both the fire truck and the defendant's vehicle, from the time that he first observed both vehicles travelling in a westerly direction on Derry Road and located a distance of approximately 300 to 400 metres east of the Derry Road/Bronte Street intersection. He did not have any hesitation in stating that at the material time the fire truck was sounding its siren and had its emergency lamps activated such that they were producing intermittent flashes of red light.

86According to the officer the fire truck followed the defendant's vehicle in the left lane of Derry Road, with its siren sounding and its emergency lights flashing, over the whole of the approximate 300 to 400 metre distance as those vehicles were travelling towards his location at the intersection.

87The officer testified that he did not lose sight of the defendant's vehicle from the time that he first observed it travelling on Derry Road, east of its intersection of Bronte Street, until the time that he stopped the vehicle for a second time at the intersection of Derry Road and Scott Boulevard, other than for a one-second period when the defendant was operating her vehicle on Derry Road west of its intersection with Bronte Street.

88The officer maintained that during the time that the defendant's vehicle was travelling in a westerly direction on Derry Road, his attention was focussed on the actions of both the defendant's vehicle and the fire truck following closely behind it. The reliability of his observations at the material time is enhanced by the fact that he followed the actions of both vehicles as they travelled towards his position at the intersection of Derry Road and Bronte Street, rather than away from his position. He was therefore able to testify, without vacillation, that the fire truck continued to follow the defendant's vehicle throughout the entire 300 to 400 metre stretch of westbound Derry Road, at a following distance of 6 to 7 metres, while its siren was sounding and its emergency lights were flashing. He also was able to advise that during this period of time, the defendant's vehicle did not take any steps to stop near the right edge of Derry Road, prior to crossing Bronte Street.

89In my view, the trustworthiness of the officer's evidence in this proceeding is directly related to his opportunity to focus on the actions of the defendant's vehicle and the fire department vehicle, from his standing position at the intersection of Derry Road and Bronte Street, his ability to provide a clear and detailed description of what he observed at the relevant time and the fact that his existing memory of the subject events was refreshed by the use of his investigative notes, made contemporaneously with the time of the event.

90The defendant testified in this proceeding from her memory of the events which took place approximately 13 months previously. Throughout her testimony, she was steadfast in her resolve that as she didn't see a fire truck closely approaching her vehicle from behind that, in fact, a fire truck had not approached her vehicle in the manner as described by Officer Daif.

91The defendant stated that while she was operating her motor vehicle on Derry Road west of Santa Maria Boulevard and east of Bronte Street, she was careful to be cognizant of the vehicles around her, regularly checking her rear-view mirror. She asserted that while she, had initially observed a fire truck travelling in the left, westbound lane of Derry Road, a distance of 500 to 1,000 metres behind her, she lost sight of the truck, and did not either see a fire truck or hear the siren of such a vehicle at any time after she travelled west of the intersection of Derry Road and Santa Maria Boulevard.

92In reviewing the defendant's testimony, there is no doubt that she testified in a forthright manner, asserting her position that at no time during the course of her travel on Derry Road, east of Bronte Street, did she notice a fire truck approaching her vehicle from behind. She was responsive to questions posed of her during cross-examination and she did not appear to attempt to exaggerate her version of the relevant events. For those reasons, I am satisfied that the defendant presented as a credible witness.

93On the other hand, I have serious reservations as the reliability of her memory of the relevant events. The defendant was unable to be precise as to many of the circumstances of her travel on Derry Road, westbound, specifically over the 300 to 400 metre span of that highway to the east of its intersection with Bronte Street. There were many internal inconsistencies in her testimony pertaining to the relevant events, and in a number of instances the strength of her account of the events was diminished through effective cross-examination by the prosecutor.

94On a number of occasions during her testimony, the defendant was equivocal in her answers as to her driving behaviour, especially relative to her travel over the stretch of Derry Road between Santa Maria Boulevard and Bronte Street. For example, during the course of cross-examination, she indicated that it was her habit to look in her rear-view mirror every time that she crossed an intersection. In that regard, she asserted that she looked in her rear-view mirror when she crossed Bronte Street and continued in a westerly direction on Derry Road, as she did when she was crossing every other intersection. In a follow-up question as to whether she checked her rear-view mirror when she was crossing the various intersections on Derry Road east of its intersection with Bronte Street, the defendant replied that she couldn't be sure.

95At a later point in cross-examination, the defendant disagreed with the prosecutor's suggestion to her that given her statement that she would check her rear-view mirror when passing through an intersection, that prior to reaching Bronte Street, she would have last checked her rear-view mirror at the intersection of Santa Maria Boulevard and Derry Road.

96In expressing her disagreement with that suggestion, the defendant advised that she did check her rear-view mirror prior to crossing Bronte Street. When asked to explain this statement, which was inconsistent with her earlier statement that she would usually check her mirror when crossing an intersection, the defendant stated that on the date of the subject offence she was "paranoid" and that she was continually checking her rear-view mirror to attempt to determine the location of the fire truck that she had seen in her rear-view mirror moments earlier.

97During the latter part of her testimony in cross-examination, the defendant advised that she was unsure as to which lane of westbound Derry Road she was travelling in as she was approaching its intersection with Bronte Street. While she acknowledged that she was directed by the police officer to stop on the shoulder of Derry Road west of its intersection with Bronte Street, she was unsure as to whether she had to change lanes on the west side of Bronte Street in order to comply with the officer's direction. In that regard, she vacillated in her testimony concerning the lane she was travelling in as she approached the intersection of Derry Road and Bronte Street.

98Finally, the reliability of the account of the defendant's travel in the westbound lanes of Derry Road, east of its intersection with Bronte Street must be measured in the context of her admitted state of mind relative to her driving behaviour at the relevant time. In this regard, the defendant advised that a few days prior to the subject incident, she was involved in a motor vehicle accident. She advised that on the day of the subject incident, she remained in state of shock as a result of the accident. She admitted that she was nervous about driving to work that day and that she, in fact, did not want to drive that day.

99Moreover, during her testimony, the defendant stated that in general, she is "a little claustrophobic on the road". In that regard, she acknowledged that it is her practice "to switch lanes a lot", noting that since she doesn't like cars to be situated too close to her, she generally will change lanes frequently. In that regard, the defendant acknowledged that during the period of time that she was travelling on the relevant portion of the westbound lanes of Derry Road, between Santa Maria Boulevard and Bronte Street, she was unable to be specific as to which lane she was in as she was, at that time "constantly moving" from lane to lane.

100In my view, the defendant's candid testimony as to her state of mind on the date in question diminishes the reliability of her assertion that a fire truck with its siren sounding and its emergency lights flashing did not closely approach her vehicle over a portion of the westbound stretch of Derry Road, east of Bronte Street. It is understandable that the defendant might have failed to notice the presence of fire truck behind her, given the fact that she was nervous about driving following her recent motor vehicle accident.

101By her own admission, the defendant was paranoid and claustrophobic on the road. In light of the totality of her testimony, it is, in my view, reasonable to infer that at the material time the defendant may have been so concerned about the location of various vehicles travelling beside her or in front of her that she momentarily lost focus of the location of the fire truck that she had initially observed travelling behind her. Additionally, in light of her admission that she doesn't like cars too close to her, and that she, therefore, frequently conducts lane changes, it is understandable that she did not either see or hear the approach of the subject fire truck due to the distraction associated with frequent lane-change manoeuvres.

102For the reasons stated above, when I consider the defendant's exculpatory testimony that a fire department vehicle did not approach her location in one of the westbound lanes of Derry Road, in the context of the totality of the evidence before me in this proceeding, I find that I am not left in a state of reasonable doubt that at the material time such a fire department vehicle had approached the vehicle being driven by the defendant. In applying the second prong of the W.(D.) principles, I reject the defendant's testimony that a fire department vehicle, with its siren sounding and its emergency lights flashing was not located immediately behind her vehicle as it travelled in a westerly direction over a 300 to 400 metre stretch of Derry Road, east of its intersection with Bronte Street.

103In light of my finding rejecting the exculpatory evidence of the defendant in this proceeding, I must now turn to the third prong of the W.(D.) principles and ask myself whether on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.

104I have found the testimony of Police Officer Daif in this proceeding to be both credible and reliable. The officer's testimony establishes all of the essential elements of the actus reus of the offence against the defendant herein, on a presumptive prima facie basis. An objective assessment of the evidence leads to a common sense conclusion that the fire truck in question had approached the defendant's motor vehicle by moving within 6 or 7 metres of the rear of the defendant's vehicle. The defendant was therefore required to immediately stop her vehicle as near as practicable to the right curb or edge of the roadway, to permit the fire truck to move past her vehicle. In light of the fact that I have rejected the defendant's exculpatory evidence in this proceeding, I am convinced that all of the essential elements of the offence under paragraph 159(1)(a) of the H.T.A., have been established, beyond a reasonable doubt.

105Accordingly, I am satisfied that the prosecution has proven the following facts, relative to the actus reus of the subject offence, beyond a reasonable doubt:

that on the 12th day of October, 2009, the defendant, Julie Maria Metni was driving a motor vehicle in a westerly direction on a highway, to wit: Derry Road, east of its intersection with Bronte Street, in the Town of Milton;
that at that time, a fire department vehicle, being a fire truck with its siren sounding and with its lamps producing intermittent flashes of red light, had approached the defendant's vehicle from behind, such that it followed the defendant's vehicle at a distance of approximately 6 to 7 metres over a distance of 300 to 400 metres of Derry Road, westbound, east of its intersection with Bronte Road;
that upon the approach of the said fire department vehicle, the defendant failed to immediately bring her motor vehicle to a standstill, in the manner prescribed by paragraph 159(1)(a) of the H.T.A.

106In light of my finding that the prosecution has met its burden of proving all of the elements of the subject strict liability offence, beyond a reasonable doubt, the fault element of negligence is automatically imported into the offence. Accordingly, the defendant will be found guilty of the subject offence unless she is able to show on a balance of probabilities that in committing the prohibited act herein, she exercised reasonable care. The exercise of reasonable care includes the concepts of reasonable belief in a mistaken set of facts, which if true would render the defendant's actions in committing the offence, innocent as well as the concept of taking all reasonable steps to avoid committing the prohibited act. These factors constitute the two prongs of the defence of due diligence.

107If the defendant is able to establish the existence of one of the two prongs of the due diligence defence on a balance of probabilities, then she will be excused of quasi-criminal liability for the offence and is entitled to an acquittal.

Has the defendant proven, on a balance of probabilities, that in committing the actus reus, she exercised due diligence?

108During the course of her final legal argument in this proceeding, the defendant submitted that she should be found not guilty of the subject regulatory offence because she did not intend to commit the offence. She submitted that she honestly did not notice the fire truck approaching the rear of her vehicle at the material time and accordingly, she did not take the steps that she should have, to immediately stop her vehicle near to the right edge of the roadway.

109I accept that the defendant did not intend to commit the prohibited act of failing to stop for an emergency vehicle under paragraph 159(1)(a) of the H.T.A. However, the subject offence is one of strict liability and accordingly the prosecution is not required to prove the element of mens rea or "guilty mind", beyond a reasonable doubt. The prosecution has proven that the defendant committed the prohibited act associated with the subject offence and the mental element of negligence is, therefore, presumed. The defendant may then attempt to persuade me as the trier of fact, that the evidence establishes, on a balance of probabilities, that she acted with due diligence in committing the offence. If the defendant is able to prove the due diligence defence, the defendant's presumed negligence is rebutted and she is excused of liability for the subject offence.

110During her testimony, the defendant asserted that the prosecution failed to prove all of the essential elements of the actus reus of the subject offence, in light of her assertion that a fire department vehicle upon which a siren was sounding and upon which a lamp was producing intermittent flashes of red light had not approached her vehicle at the relevant place and time.

111After assessing the totality of the evidence in this proceeding, in accordance with the W.(D.) principles, I determined that at the material time, such a fire department vehicle had approached the defendant's vehicle as she operated it in the westbound lanes of Derry Road, east of Bronte Street, in the Town of Milton. However, I accept the defendant's testimony that she was not aware of the presence of the fire truck behind her vehicle, at the material time. I believe the defendant when she states that she did not either see the fire truck approaching her vehicle from the rear or hear its siren as it approached.

112It is reasonable to infer from the totality of the evidence before me that the defendant is submitting that in committing the subject offence she exercised reasonable care by acting on the basis of an honest and reasonable mistake of fact. In making this alternative argument, the defendant is impliedly stating that even though it has been proved that a fire truck approached the location of the defendant's vehicle at the subject time, she honestly was not aware of its approach and accordingly she failed to immediately bring her vehicle to a standstill as required by paragraph 159(1)(a) of the H.T.A., due to her mistaken belief in this regard.

113In Regina v. Sault Ste. Marie, supra, Dickson J. stated that the defence of reasonable care (the defence of due diligence) "involves a consideration of what a reasonable man would have done in the circumstances".

114In Regina v. Kurtzman (1991), 1991 CanLII 7059 (ON CA), 4 O.R. (3d) 417 (Ont. C.A.), Tarnopolsky J.A. stated that "the due diligence defence must relate to the commission of the prohibited act, not some broader notion of acting reasonably".

115In Regina v. Stelco Inc., 2006 CanLII 28110 (ON SC), [2006] O.J. No. 3332 (Ont. Sup. Ct.), Whitten J. noted that "due diligence imports a standard of objective reasonableness, an honest subjective belief is not enough". In commenting on the defence of due diligence in his appellate decision in Regina v. Nitrochem Inc., [1993] O.J. No. 3336 (Ont. Prov. Div.), Anderson J. stated as follows:

An analysis of the defence reveals two possible arguments. First it is open to the accused to establish that he reasonably believed in a mistaken set of facts which if true would have rendered the act or omission harmless. The second branch of the argument is that the accused did everything reasonably within his power to avoid the event. In practical terms however, the two aspects of the defence ultimately converge since to establish the reasonableness of the mistaken belief an inquiry is necessary to determine whether the accused did everything reasonably within his power to ascertain the true state of affairs.

116Finally, in his decision in Regina v. Courtaulds Fibres Canada, [1992] O.J. No. 1972 (Ont. Prov. Div.), Fitzpatrick J. made the following statement pertaining to the law of due diligence:

Reasonable care and diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive prompt and continuing action. To demand more, would, in my view, move a strict liability offence dangerously close to one of absolute liability.

117As stated above, based on the totality of the evidence before me in this matter, weighed on a balance of probabilities, I find that at the material time the defendant harboured an honest belief that a fire department vehicle as described in paragraph 159(1)(a) of the H.T.A., had not approached her vehicle while she was operating it in the westbound lanes of Derry Road, east of Bronte Street. I further conclude that the defendant has shown on a balance of probabilities that as a result of this mistaken belief on her part, she failed to fulfill her statutory duty to immediately bring her vehicle to a standstill as near as is practicable to the right-hand curb or edge of the roadway and parallel therewith and clear of any intersection.

118However, the defendant's honest belief in the mistaken set of facts is not enough to establish due diligence. As stated in Regina v. Stelco Inc., supra, the mistaken belief must, in addition to being subjectively genuine, be objectively reasonable. In order to resolve this issue, I must ask myself whether an ordinary reasonable person would have continued to travel in the left, westbound lane of Derry Road, after he/she had spotted a fire department vehicle approaching his/her moving vehicle from the rear at a distance of between 500 and 1,00 metres.

119In this case, the defendant testified that even though she noticed the presence of the fire truck travelling in the left lane of Derry Road, behind her, she continued to travel in a westerly direction on Derry Road rather than taking immediate steps to move into the right lane and stop at the right edge of the highway. If the defendant had taken such steps then the fire truck would have likely moved past her location on Derry Road, within a very short period of time.

120In circumstances such as this, the reasonable person would likely immediately move his/her vehicle to the right edge of the roadway and stop at that location, for a short period of time, to ensure that the emergency vehicle was not delayed in any fashion. In this case, the defendant continued to travel on Derry Road, rather than stop to await the arrival of the fire truck. She felt that she could visually monitor the activities of the fire truck through her rear-view mirror, while concentrating on the conduct of other drivers, travelling in both directions on the said highway.

121I acknowledge the defendant's evidence that upon observing the fire truck travelling towards her location in the westbound lanes of Derry Road, she took steps to continuously monitor her rear-view mirror in an attempt to determine the whereabouts of the fire truck. While I accept that the defendant's efforts in this regard, constituted some plan to ascertain the path that the fire truck was taking as it travelled in a westerly direction on Derry Road, given the number of vehicles on the road at the time it was not, in my view, reasonable for her to continue to operate her vehicle in the left lane, without first taking steps to ascertain the location of the subject fire truck.

122While I accept the defendant's testimony that she did not see any fire department vehicles approaching her location in the westbound lanes of Derry Road, prior to crossing through the intersection of Derry Road and Bronte Street, it is clear that she knew that a fire truck was the process of travelling towards her location on Derry Road. It was therefore foreseeable that the fire truck could have been approaching her location shortly thereafter, possibly resulting in traffic congestion and multiple lane changes.

123In my view, in light of the defendant's initial observation of the presence of a fire truck travelling behind her by 500 to 1,000 metres, the defendant ought to have determined that the truck would likely catch up to her vehicle in a short period of time. She, in my view had a duty of care to move out of the left lane where the fire truck was travelling and immediately move into the adjacent right lane in order to prepare to immediately stop her vehicle as near as practicable to the right-hand curb or edge of the roadway. If she had taken this initial step she would have been able to travel at a lower rate of speed while attempting to ascertain the location of the fire truck and, at the same time prepare for the likelihood of immediately stopping her vehicle in the right lane, if necessary.

124In my view, the defendant would have exercised decisive, prompt and continuing action had she taken immediate steps move her vehicle into the right lane from the left lane as soon as she spotted the presence of the fire truck behind her by a distance of 500 to 1,000 metres. By continuing to travel in the left lane of the highway in those circumstances, when she was aware of her obligation to immediately stop her vehicle near the right of edge of the roadway upon the approach of an emergency vehicle, constituted an imprudent and negligent action on her part, inconsistent with the exercise of due diligence.

125While I acknowledge that the actions of the defendant in regularly checking her rear-view mirror as she was travelling in the westbound lanes of Derry Road, might constitute evidence raising a reasonable doubt that the defendant failed to exercise reasonable care, I must remind myself that the onus of proof in establishing a defence of due diligence rests on the defendant, on a balance of probabilities. When I consider the totality of the evidence before me weighed on a balance of probabilities, I am not satisfied that the defendant has discharged her legal burden of proving that in committing the regulatory offence of failing to stop on right for emergency vehicle, she acted on the basis of a honest and reasonable mistake of fact.

126The defendant's mistaken belief that at the material time, the subject fire department vehicle had not approached her vehicle in the westbound lanes of Derry Road, was not an objectively reasonable belief. It was reasonable to conclude that the rapid approach of the westbound fire truck, behind the defendant's vehicle was entirely foreseeable.

127The actions taken by the defendant in order to prepare for the likelihood that the fire truck would be approaching the location of her vehicle in a very short period of time, in my view, fell short of the "reasonable care" standard as enunciated in Regina v. Courtaulds Fibres Canada, supra; being "a high standard of awareness and decisive prompt and continuing action". The defendant has failed to meet her burden of proving the defence of due diligence in this proceeding on a balance of probabilities.

THE DECISION

128The prosecution has proved the issues of the identification of the defendant and the actus reus of the subject offence, to the standard of proof beyond a reasonable doubt.

129The defendant has failed to establish the defence of due diligence on a balance of probabilities.

130The defendant is therefore found guilty of the offence of "fail to stop on right for emergency vehicle", contrary to paragraph 159(1)(a) of the H.T.A. and a conviction is registered.

Released: March 9th, 2012

Signed: "Justice of the Peace Kenneth W. Dechert"

R. v. Metni, 2012 ONCJ 134

Case Summary

INTRODUCTION

RELEVANT STATUTORY PROVISIONS

THE ISSUES

THE EVIDENCE

(i) The Testimony of Police Officer Mina Daif

(ii) The Testimony of the Defendant

ANALYSIS

Has the prosecution proven that the defendant committed the actus reus of the subject offence, beyond a reasonable doubt?

Has the defendant proven, on a balance of probabilities, that in committing the actus reus, she exercised due diligence?

THE DECISION

R. v. Metni, 2012 ONCJ 134

Case Summary

INTRODUCTION

RELEVANT STATUTORY PROVISIONS

THE ISSUES

THE EVIDENCE

(i) The Testimony of Police Officer Mina Daif

(ii) The Testimony of the Defendant

ANALYSIS

Has the prosecution proven that the defendant committed the actus reus of the subject offence, beyond a reasonable doubt?

Has the defendant proven, on a balance of probabilities, that in committing the actus reus, she exercised due diligence?

THE DECISION