Court File and Parties

Ontario Court of Justice

Date: 2017-06-15

Court File No.: Durham Region 2860 999 00 5261843Z

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:

The Regional Municipality of Durham Respondent

— AND —

Liwei Lin Appellant

Before: Justice J. De Filippis

Heard on: April 12, 2017

Reasons for Judgment released on: June 15, 2017

Counsel:

• Mr. T. McKinnon, counsel for the respondent
• Ms. Liwei Lin, on her own behalf

On appeal from: A conviction on November 17, 2016 by Justice of the Peace E. J. Moffatt

Reasons for Judgment

De Filippis, J.:

Background

[1] The appellant was charged, on September 24, 2015, with having committed the offence of careless driving, contrary to section 130 of the Highway Traffic Act. Her trial was held on September 22, 2016. She represented herself at trial and on appeal, with the assistance of a Mandarin interpreter.

Facts

[2] These facts are not in dispute: On the date in question, the appellant operated a motor vehicle eastbound on Taunton Road, just east of Simcoe Street in the Municipality of Oshawa. She was following a pickup truck. That truck was following another vehicle. The first vehicle slowed to make a left hand turn into a plaza. The pickup truck came to a stop. The appellant collided with the pickup truck. The impact was not severe and the pickup truck was not damaged. However, the trailer hitch from the pickup truck was stuck in the front bumper of the appellant's vehicle and this caused minor damage to that vehicle. The parties exchanged personal information. The appellant went to a reporting collision centre and was charged with this offence.

[3] Three witnesses testified at trial; the officer who received the appellant's report at the collision centre, the driver of the pickup truck and the appellant herself. The justice of the peace reserved her decision and delivered written reasons.

Primary Factual Dispute

[4] The primary factual dispute is whether the appellant had an opportunity to stop. The driver of the pickup testified that he slowed down on seeing the vehicle in front with the left hand turn signal activated and came to a stop for about five seconds when he was hit from behind. The appellant testified the pickup truck stopped suddenly and she could not avoid the collision.

[5] At trial the appellant established that the driver of the pickup truck was mistaken about when he reported to the collision centre. In submissions at trial, and on appeal, she argued that this mistake should cast doubt on his assertion that he slowed down and then stopped for about five seconds before being rear ended. It is her position that this demonstrated that "his memory is suspect". At both hearings the appellant also submitted that the charge against her was laid prematurely and without reasonable and probable grounds.

Trial Judge's Decision

[6] The written reasons for conviction in this matter are ten pages in length. At paragraphs 26 to 33, the justice of the peace set out her assessment of the evidence, including with respect to the primary factual issue noted above. The justice of the peace correctly stated the applicable law as described by the Court of Appeal for Ontario in R v Shergill, 2016 ONCJ 163 and concluded as follows:

This is a strict liability offence. The onus shifts to the Defendant to prove, on a balance of probabilities the defence of due diligence or reasonable mistake of fact. The Defendant has lead no evidence, nor is there any evidence which satisfies me that the collision occurred through no fault of the Defendant.

[7] In coming to this conclusion, the justice of the peace reiterated her finding that the appellant could have avoided the collision and failed to do so because she was not driving with the due care and attention expected of a prudent driver. In this regard, she explained why she rejected the appellant's testimony and accepted that of the pickup driver.

Appellate Analysis

[8] Having listened to the parties and reviewed the relevant material, I am persuaded as follows: The summary of evidence in the decision appealed from fairly represents the trial transcript. The issues raised by the parties were considered and those relating to credibility and reliability are adequately explained. The findings of fact are based on reasonable inferences. The law is correctly stated. Accordingly, there is no basis to interfere with the verdict.

Disposition

[9] The appeal is dismissed.

Released: June 15, 2017

Signed: Justice De Filippis