Court Information
Ontario Court of Justice
Parties
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:
HER MAJESTY THE QUEEN Respondent
ā AND ā
Darren PARENT Appellant
Court Details
Before: Justice D.A. Harris
Heard on: January 9, 2015
Reasons for Judgment released on: March 11, 2015
Counsel:
- Gregory Larson, for the prosecution
- Frank Alfano, agent for the defendant Darren Parent
On appeal from conviction by: Justice of the Peace D. Huston on June 19, 2013
HARRIS J.:
INTRODUCTION
1Darren Parent was convicted of careless driving following his trial. He has appealed against that conviction.
THE EVIDENCE
2Fire Captain Evershed and other firefighters were sent to the scene of a motor vehicle collision on the Queen Elizabeth Way in Oakville. Their job was to "block" the highway. They set up one fire truck to block lanes one and two and another truck to block lanes three and four. They set out pylons to direct traffic into the only open lane, being the H.O.V. lane.
3Mr. Parent drove his motor vehicle up to, and then "squeezed between", the pylons and the bumper of one fire truck and continued on into the "hot zone, where the accident occurred". At this point he was approximately 50 to 60 yards from the actual collision. Captain Evershed yelled and said "Stop, what are you doing?" Mr. Parent looked at him and continued on. Captain Evershed kept yelling. He yelled quite a few times, ten times, eventually yelling as loud as he could. Mr. Parent continued on before merging back into the H.O.V. lane about 10 yards before the actual collision.
4He did not drive fast. He drove well in fact. However, "He was kind of like someone sneaking through some place where they weren't supposed to be."
5There were eight firemen working where Captain Evershed was. At the scene of the actual collision, there was a pumper truck, a rescue truck, two ambulances and a number of police officers, probably fifteen people working there in total.
6This happened around noon and traffic was "really built up", "really congested".
ISSUES ON APPEAL
7The legal representative for Mr. Parent argued that the scope of appellate review is wide with respect to appeals under Part I of the Provincial Offences Act.
8He also argued that the presiding justice of the peace erred in finding that the driving in this case was done "without reasonable consideration for other persons using the highway".
9He further argued that the presiding justice of the peace erred by drawing "the unsupported and inference that this could have ended up to be more serious had the appellant been driving at a higher rate of speed".
10I will deal with these issues in that same order.
STANDARD OF APPELLATE REVIEW
11Part I appeals are governed by section 136 of the Provincial Offences Act which reads as follows:
136.--(1) Upon an appeal, the court shall give the parties an opportunity to be heard for the purpose of determining the issues and may, where the circumstances warrant it, make such inquiries as are necessary to ensure that the issues are fully and effectively defined.
(2) An appeal shall be conducted by means of a review.
(3) In determining a review, the court may,
(a) hear or rehear the recorded evidence or any part thereof and may require any party to provide a transcript of the evidence, or any part thereof, or to produce any further exhibit;
(b) receive the evidence of any witness whether or not the witness gave evidence at the trial;
(c) require the justice presiding at the trial to report in writing on any matter specified in the request; or
(d) receive and act upon statements of agreed facts or admissions.
12The legal representative for Mr. Parent quoted certain passages from the reasons of Duncan J. in R. v. Gill. In particular he relied on the following comments contained at paragraph 7:
The appeal created by these words could hardly be more generous. Unlike appeals from proceedings under POA Part III, or those governed by the Criminal Code, for example, the court is not limited as to when it may intervene - in particular it is not required to find that the trial judgment was unreasonable, unsupportable or erroneous in law [citations omitted] or that the sentence imposed at trial was unfit, unreasonable, or erroneous in principle [citations omitted]. Even the requirement in section 138 above that it "is necessary to satisfy the ends of justice" apparently applies only to the order for a new trial, rather than the allowance of the appeal itself.
13He also relied upon the following extract from paragraph 11:
It is not a matter of deferring to the trial justice's conclusion and intervening only if I conclude that her decision was unreasonable. To approach it in that way would be to effectively transpose the Part III provisions to Part I and II appeals when the legislature took pains to distinguish between the two. However, where findings of credibility are in issue, I should accept the trial justice's findings unless they are unreasonable.
14I agree with these comments by Justice Duncan. However I also agree with certain passages which were not included in the appellant's factum.
15These include paragraph 10 which reads as follows:
On the other hand, it could not have been the intention of the legislature that the Provincial Offences Appeal Court re-try every case. The Act grants a defendant only one trial; it is not a trial run. Further, it should be obvious that some issues, such as findings that are based on credibility, are at least practically - if not also legally - beyond the reach of an appeal court that has not heard or seen the witnesses.
16I also prefer to read paragraph 11 in its entirety, rather than just the extract:
It is not necessary to decide the limits of my authority under these appeal provisions. It suffices to conclude, for present purposes, that I am quite satisfied that the issue of sufficiency of the evidence to support the conviction is well within my broad jurisdiction. Further, I am of the view that I must review the record before me and reach my own conclusion on the issue. It is not a matter of deferring to the trial justice's conclusion and intervening only if I conclude that her decision was unreasonable. To approach it in that way would be to effectively transpose the Part III provisions to Part I and II appeals when the legislature took pains to distinguish between the two. However, where findings of credibility are in issue, I should accept the trial justice's findings unless they are unreasonable.
17I am proceeding on the basis that while the scope of appellate review is very wide in Part I appeals, it is not my role to retry every case. Further, there is no legal impediment to me showing deference to a presiding justice of the peace where I am satisfied that she has considered all of the relevant facts and the appropriate law.
CARELESS DRIVING
18The offence of careless driving is set out in section 130 of the Highway Traffic Act as follows:
- Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years.
19The Ontario Court of Appeal decision in R. v. Beauchamp is perhaps the leading authority with respect to this offence.
20I have attempted to summarize the comments made by Mackay J.A. in that case in the following five paragraphs.
21To make out careless driving, the evidence must be such as to prove beyond reasonable doubt that the accused drove in a manner prohibited by the section, namely, without due care and attention or without reasonable consideration for others.
22The standard of care and skill to be applied is not that of perfection. Rather, what would an ordinary, prudent person have done in relation to the event complained of?
23The use of the term "due care", which means care owing in the circumstances, makes it quite clear that, while the legal standard of care remains the same in the sense that it is what the average careful man would have done in like circumstances, the factual standard is a constantly shifting one, depending on road, visibility, weather conditions, traffic conditions that exist or may reasonably be expected, and any other conditions that ordinary prudent drivers would take into consideration. It is a question of fact, depending on the circumstances in each case.
24The standard is an objective standard.
25The legal representative for Mr. Parent relied heavily upon the statement by Mackay J.A. at paragraph 21 in R. v. Beauchamp:
There is a further important element that must also be considered, namely, that the conduct must be of such a nature that it can be considered a breach of duty to the public and deserving of punishment. This further step must be taken even if it is found that the conduct of the accused falls below the standard set out in the preceding paragraphs. This principle may be somewhat difficult to apply, but I think it might be illustrated by the common example of a motorist attempting to park at the curb in a space between two other parked vehicles. Frequently one or other of the parked vehicles is bumped in the process. Damage seldom arises, because cars are equipped with bumpers, but if damage were caused it might well give rise to a civil action for damages, but it could hardly be said to be such a lack of care or attention as would be considered to be deserving of punishment as a crime or quasi-crime.
ANALYSIS
26There is no suggestion that Mr. Parent was driving without due care and attention. The only issue before the presiding justice of the peace was whether he was driving his motor vehicle without reasonable consideration for other persons using the highway.
27The presiding justice of the peace concluded that the driving here was without reasonable consideration of other persons using the highway.
28She noted that the emergency services people were using the highway. There were many of them. It was not just a simple roadblock that Mr. Parent snuck through with his car. It was the scene of a serious accident where the emergency services people should have felt free to go about their business without any concern that someone might choose to drive into or even near the area where they were working.
29I note, as the justice of the peace did, that this area was clearly blocked off using fire trucks and pylons.
30Many of the vehicles around the collision site had their emergency lights flashing.
31The presiding justice of the peace found that Mr. Parent's actions in driving 40 to 50 feet into this area fell below the standard of what a reasonable person would do in those circumstances.
32She turned her mind to the need for the driving misconduct to be worthy of punishment, and clearly decided that it did.
33She noted that Mr. Parent was not driving quickly or in any manner which caused any concern, but also noted, that he did not need to be driving in such a fashion in order to be driving without reasonable consideration for others.
34He ought not to have been driving in that location at all and that the fact that he did drive there went well beyond being simply discourteous.
35The decision of the presiding justice of the peace was quite reasonable and I agree with her decision.
36The legal representative for Mr. Parent drew attention to her comment that "this could have ended up to be more serious had this defendant been driving at a higher rate of speed". He argued that this was an "unsupported and unreasonable inference" drawn by her and that it was a significant and contributing factor to the core of her reasoning process culminating in conviction".
37I disagree.
38Her comment has to be looked at in context. I have highlighted the words complained of within the larger passage which reads as follows:
I think it does fall within "without reasonable consideration for other persons". It is clear that this was an accident scene and that there were emergency services. They were attending to this accident. This could have ended up to be more serious had this defendant been driving at a higher rate of speed, but we did not hear that he was driving in any manner which caused concern. But that should not have to be there. That certainly would have been adding more egregious facts to the situation. The fact of the matter was that he was driving and "without reasonable consideration" for the emergency services that were there.
39When viewed in context, the passage complained of is of no consequence in the decision making process of the presiding justice of the peace.
DISPOSITION
40The appeal is dismissed.
Released: March 11, 2015
Signed: "Justice D.A. Harris"