Court File and Parties

Court File No.: Norfolk County 10-302 Date: 2013-01-24 Ontario Court of Justice

Between: Her Majesty The Queen — AND — Carrie Rachel McMillan

Before: Justice of the Peace Kenneth W. Dechert

Heard on: May 3rd, 2012 and August 30th, 2012

Reasons for Judgment released on: January 24th, 2013

Provincial Offences Court – Simcoe, Ontario

Counsel:

C. Szoke, for the prosecution
J. Battin, counsel for the defendant Carrie Rachel McMillan

Statutes, Regulations and Rules Cited

Cases Cited

Publications Cited

Hutchison, S., Rose, D., Downes, P., The Law of Traffic Offences, Third Edition (2009, Thomson Reuters Canada Limited)

INTRODUCTION

[1] Under Information no. 10-302 for the County of Norfolk, the defendant Carrie Rachel McMillan stands charged that she on or about the 3rd day of May, 2010 at Norfolk County did commit the offence of "did drive a motor vehicle on Wellington Avenue, Delhi, and being directly involved in an accident did fail to remain at or immediately return to the scene of the accident", contrary to the Highway Traffic Act, section 200(1)(a).

[2] The trial of the subject charge began before me on the 3rd day of May, 2012, in Simcoe, Ontario. At that time, the defendant was arraigned on the subject charge and entered a plea of not guilty. The trial was not completed on the said date and was adjourned to August 30th, 2012 for continuation. The trial was completed on the said date and it was then adjourned to January 24th, 2013 for my judgment.

[3] The prosecution was represented by Mr. C. Szoke. The defendant was represented by her counsel, Mr. J. Battin.

THE LAW

(i) Relevant Statutory Provisions

[4] The defendant is charged with the offence of fail to remain at or immediately return to the scene of the accident, contrary to paragraph 200(1)(a) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as "the H.T.A." That paragraph reads as follows:

Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall,

(a) remain at or immediately return to the scene of the accident.

[5] The following portions of subsection 1(1) of the H.T.A., are relevant to this proceeding:

1(1) In this Act,

'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;

'motor vehicle' includes an automobile, a motorcycle, a motor-assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine;

'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 a street car.

(ii) Relevant Common Law

[6] In the case of Regina v. Weir, [1992] O.J. No. 1506 (Ont. C.J. – Prov. Div.), the accused was charged with the offence of "fail to remain", contrary to paragraph 174(1)(a) of the Highway Traffic Act, R.S.O. 1990, c. H.8, (the predecessor to paragraph 200(1)(a) of the H.T.A.), and the related offence of "fail to stop at the scene of the accident, with intent to escape criminal or civil liability", contrary to subsection 252(1) of the Criminal Code, R.S.C. 1985, c. C-46, as amended.

[7] In his decision in this case, Stone J. made the following comments relative to the classification of the said offences:

There are subtle differences between the offences created by the above two sections [the offence of fail to remain under paragraph 174(1)(a) of the Highway Traffic Act and the offence of fail to stop at the scene of the accident under subsection 252(1) of the Criminal Code]. The actus reus of both offences for our purposes (leaving aside questions of assisting injured persons) involves leaving the scene of the accident before completing statutory duties. The difference lies in the mens rea involved: under the Criminal Code section, the Court must determine whether there was a criminal intent to escape civil or criminal liability, while I find the Provincial offence to be one of strict liability. …

[8] In commenting on the phrase contained in paragraph 174(1)(a) (now paragraph 200(1)(a)) of the Highway Traffic Act, "immediately return to the scene of the accident", Mr. Justice Stone stated as follows:

As I have considered the Highway Traffic Act section, I am convinced that that section is intended to deal with a time proximate to the accident. It is my view that the phrase 'immediately return to the scene of the accident' contemplates someone who has either driven or been thrown clear of the point of impact, and there is a clear legal duty on such a person to return immediately. …

[9] As stated above, the offence of "fail to remain" under paragraph 200(1)(a) of the H.T.A., has been judicially classified as an offence of strict liability. The concept of strict liability offences as a recognized category of regulatory offences, was established in Canada by the Supreme Court of Canada in its decision in Regina v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; (1978), 40 C.C.C. (2d) 353 (S.C.C.). In that decision, Dickson J. (as he then was) writing for the unanimous Court, defined strict liability or "public welfare" offences, as follows:

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. 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. These offences may properly be called offences of strict liability. …

[10] In their textbook, The Law of Traffic Offences, Third Edition (2009, Thomson Reuters Canada Limited), authors Scott Hutchison, David Rose and Phil Downes interpreted the definition of strict liability offences as enunciated in Regina v. Sault Ste. Marie (City), supra at page 225 thereof, as follows:

Since Sault Ste. Marie, offences created within the provincial sphere of legislative competence are presumed to be strict liability. That is, while the prosecution is not required to prove any positive mental element (save perhaps voluntariness which is properly considered under actus reus), the defendant may escape conviction by demonstrating, on a balance of probability, an innocent mental state. This can be done by showing that the defendant exercised all "due diligence" or that the defendant reasonably believed in a set of facts which, if they had been true, would have made his or her actions innocent. It should be noted that the measure of due diligence and reasonable belief are objective, looking at what the reasonable person would do or believe in the same circumstances.

[11] In his decision in Regina v. Racimore, [1975] O.J. No. 729 (Ont. H.C.), Grange J. (as he then was) considered an appeal by way of stated case from the conviction of the accused of failing to remain at the scene of an accident, contrary to paragraph 140(1)(a) of the Highway Traffic Act, R.S.O. 1970, c. 202, the predecessor to paragraph 200(1)(a) of the H.T.A., which conviction was made by Justice of the Peace G. Santacono on February 19th, 1974. The relevant part of the stated case in the said appeal was set out as follows:

The facts as found were that the accused on the 25th day of November, 1973 was in charge of a vehicle license number AZE 704 and was involved in an accident with another motor vehicle parked on Kenwood Avenue in the Municipality of Metropolitan Toronto at about 12:30 p.m. and the accused, not knowing that the vehicle he was in charge of made contact with the parked vehicle, failed to remain or immediately return to the scene of the accident.

Did I err in law in holding that the accused while in charge of a motor vehicle, because he caused that vehicle to be involved in an accident by touching another vehicle and failed to remain at the scene of the accident, was guilty of the said charge even though the accused did not know that the motor vehicle he was operating touched the other motor vehicle.

[12] In allowing the appeal and directing that the question posed in the stated case be answered in the affirmative, Mr. Justice Grange found that the accused's action in failing to remain at the scene of the accident was predicated upon his misunderstanding that an accident had occurred, in light of his lack of knowledge that his vehicle had come into contact with the parked vehicle. He held that the prosecution had failed to prove the actus reus of the subject offence beyond a reasonable doubt, because the act of failing to remain at the scene of the accident, in this instance, constituted an involuntary act.

[13] In reaching his conclusion in this appeal, Grange J. reasoned, in part, as follows:

The Justice of the Peace in convicting relied upon the decision of the Supreme Court of Canada in Hill v. The Queen, 24 C.R.N.S. 297. In that case the accused was aware of a contact between her vehicle and that of the complainant but was not aware that damage had ensued. The majority of the Court found that the offence had been proved.

The facts of Hill differ from the facts at bar in that here there is no knowledge of contact and consequently that case cannot be direct authority for the conclusion reached by the Justice of the Peace. Indeed, to the extent that it is direct authority, it is authority for precisely the opposite. Dickson J., for the majority, expressly took note that the accused was aware of the contact between the two vehicles. ...

The real problem that we have to deal with is the dicta of the majority with respect to mens rea. Dickson J., at p. 302, after reviewing the many cases on the subject, concluded that the offence created by the section was not a crime in the 'true sense' but part of a 'comprehensive code for the regulation and control of traffic on highways, enacted … in the interests of public safety'. He concluded that mens rea was not a part of the offence and went on, 'If mens rea is not essential then whatever Mrs. Hill believed or did not believe is irrelevant.'

The problem shortly stated is whether the clearly enunciated principle in Hill that mens rea is not essential to a conviction for this offence precludes a defence based upon a mistaken assumption or misunderstanding by the accused which rendered his action entirely innocent by any moral standard. In my view it does not.

I think there is a distinction between the requirement of mens rea and the requirement that the actus reus be voluntary and that there not be some mistake of fact or ignorance of fact that excuses it. …

It must be conceded that there was a mistake of fact in Hill in that the accused thought there had been no damage. But there was no mistake and no misunderstanding of the essential fact that an accident had occurred. In the present case there was no knowledge of contact and the accused was therefore ignorant of the existence of an accident when he drove his vehicle away and failed to remain at the scene. His failure to remain was dictated by an ignorance of essential fact and was involuntary and even though mens rea is not part of the offence he is not guilty.

…In the normal course where any serious damage occurs, the accused will know there has been contact between the vehicles and may in many instances be deemed to have that knowledge notwithstanding his denial. In the instant case, however, the evidence of the accused that he was without such knowledge was accepted by the Justice of the Peace and accordingly the law as I have stated it should apply.

[14] In Racimore, supra, Mr. Justice Grange relied upon the decisions of the Ontario Court of Appeal and the Supreme Court of Canada in Regina v. King, [1961] O.W.N. 37 (Ont. C.A.) and [1962] S.C.R. 747 (S.C.C.). In summarizing the facts of the said case the jurist stated as follows:

In that case [King] the accused in the course of a dental operation had been given a drug which impaired his ability to drive. Before the effect had worn off, he drove erratically, was arrested and charged with impaired driving under s. 223… of the Criminal Code. The facts as found by the majority of the Court of Appeal were when he drove he did not know and could not reasonably have been expected to have known that his ability to drive was then or might thereafter become impaired. Schroeder J.A., for the majority, stated at p. 44 as follows:

Even in the case of statutory crimes, therefore, the offender should not be condemned if his conduct was not voluntary, save in cases where such exception is expressly or by necessary implication excluded in the Act creating the offence. Mens rea signifies those mental processes of an accused person which actuate and accompany that voluntary conduct on his part which produces the forbidden result called the actus reus.

Unless the appellant knew or ought to have known that when he undertook to drive, the effect of the drug would incapacitate him within the meaning of s. 223, he could not have entertained the will to drive while his ability to do so was impaired or was likely to become impaired. This is a true case of ignorantia facti which should have been held to have excused the actus reus prohibited by the statute.

To brand as criminal persons to whom no moral fault can be imputed and who, through no fault of their own, committed an act which, in the circumstances, must be regarded as involuntary, is a course of action which must be avoided unless the legislation plainly and imperatively requires such a result, for such a course would undoubtedly tend to weaken respect for the law and eventually bring the law into disrepute.

[15] Mr. Justice Grange noted that in upholding the decision of the Ontario Court of Appeal, in King, supra, Taschereau J. of the Supreme Court of Canada stated, in part, as follows:

I entirely disagree with the proposition that whether the accused knew he was impaired or not he must be found guilty, and that under s. 223 Cr. C. [Criminal Code], no mental element has to be considered, and that the mere fact of impairment is sufficient to create the offence.

It is my view that there can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision, or in other words, there must be a willpower to do an act whether the accused knew or not that it was prohibited by law.

When a doctor has given an injection of a drug to a patient, who is not aware of the state of mind it may produce, there is no volitive act done by the driver and he cannot be convicted.

[16] Furthermore, in The Law of Traffic Offences, Third Edition, supra, at page 225, the authors, in commenting on the ratio decidendi of Racimore, supra, noted that "if the defendant can raise a doubt about his knowledge of an accident, he should be acquitted on the absence of any voluntary actus reus".

[17] In his appellate decision in Regina v. Hill, [1972] 2 O.R. 402-404 (Ont. H.C.), Osler J. defined the term "accident", in the context of the offence of fail to remain at the scene of an accident contrary to paragraph 140(1)(a) of the Highway Traffic Act, R.S.O. 1970, c. 202 (now paragraph 200(1)(a) of the H.T.A.), as follows:

…I am of the view that under the section of the Act being considered, an 'accident' has occurred the moment two vehicles, a vehicle and a pedestrian, or a vehicle and any object come into contact accidentally and that even without damage, the obligation to remain is immediately imposed by the section.

[18] In his decision in Hill v. The Queen, supra, from a judgment of the Ontario Court of Appeal affirming without reasons the judgment of Osler J. in Regina v. Hill, supra, Mr. Justice Dickson, writing on behalf of the majority of the Supreme Court of Canada, made, in part, the following comments pertaining to the definition of the term "accident" in the context of paragraph 140(1)(a) of the Highway Traffic Act, R.S.O. 1970, c. 202:

… The word 'accident' is not defined in the Highway Traffic Act and is not easy of definition as its meaning has a certain chameleon-like quality, changing its colour with the context in which it is found. It may mean simply any chance mishap or unforeseen contingency or occurrence; it may mean something more. Counsel for Mrs. Hill maintained that for the purpose of the Highway Traffic Act an 'accident' consists of two elements, 'chance occurrence' and 'resulting loss, injury or damage'. Counsel cited Fenton v. Thorley and Co. Limited ([1903] A.C. 443), 'any unintended or unexpected occurrence which produces hurt or loss' and Regina v. Morris ((1971), 56 Cr. App. R. 175) at p. 178, 'an unintended occurrence which has an adverse physical result'. The other view which is open is that expressed by Osler J. that an 'accident' occurs the moment two vehicles come into contact accidentally and even without damage. I do not think it necessary at this time to decide whether the view held by Osler J. is the correct one for, on the facts of this case, as I understand them, the mishap which befell Mrs. Hill was productive of damage. Before Osler J. and before the Court of Appeal of Ontario the argument proceeded on the footing that there had been damage but lack of knowledge of that damage on the part of the appellant. … I have concluded that the case against Mrs. Hill includes damage and hence, there was an 'accident', on any definition of the word, within the meaning of s. 140(1)(a).

[19] In his judgment in Regina v. Huntley, 2006 ONCJ 432, [2006] O.J. No. 4549 (Ont. C.J.) at paragraph 36, Quon J.P. made the following statement relative to the definition of the term "accident" within the meaning of the offence of failing to remain at the scene of an accident under paragraph 200(1)(a) of the H.T.A.:

Generally, an 'accident', for the purposes of this case, can be described as an event where there is a motor vehicle collision with another vehicle, object, animal or person. For someone directly or indirectly involved in an accident, they have an obligation to remain at or return to the scene of an accident under s. 200(1)(a), irregardless of the quantum of damage to property or the degree of personal injury that results from the accident. …

THE EVIDENCE

(i) The Testimony of Mr. Nicholas Quinn Hodgson

[20] During the course of the proceeding of May 3rd, 2012, I received verbal evidence from Mr. Nicholas Quinn Hodgson, Mr. Roger Pasichnyk and Police Constable Garrett Grexton, tendered on behalf of the prosecution. Additionally, on that date, I received into evidence, with the consent of the defendant, a copy of the document titled an "Interview Report", dated May 3rd, 2010, containing a hand-written transcript of an interview conducted of the defendant by Constable Grexton. This document was entered into evidence in this proceeding as exhibit no. 1.

[21] During the course of the trial continuation proceeding of August 30th, 2012, I received the verbal evidence of the defendant, together with three photographs which were taken by the defendant in the morning of the date of the subject offence herein. These photographs were entered into evidence in this proceeding as exhibit nos. 2, 3 and 4.

[22] During examination-in-chief, Mr. Hodgson testified that on May 3rd, 2010, he was residing at 170 Wellington Avenue in the Town of Delhi. In the course of cross-examination, Mr. Hodgson acknowledged that on the said date, he was living in an apartment located on the second floor of the said address.

[23] Mr. Hodgson testified that on May 3rd, 2010, he was standing on the balcony of his second floor apartment, in between the door to the apartment and the balcony, when he heard a "crash and bang noise", which he also described as a "crunching noise". He stated that upon hearing the noise, he "turned around" and walked through the door on to the balcony to investigate the source of the noise.

[24] Mr. Hodgson testified that upon entering the balcony, he proceeded to look down and noticed a vehicle, which he thought was a "Toyota", pulling away from another vehicle, which he described as a blue-coloured "Sunfire". He stated that he observed the bumper of the Toyota "removed right off the side" of the Sunfire and the Toyota "speeding away". He acknowledged that he didn't "directly see" the Toyota hit the Sunfire. At a later point in his testimony-in-chief, he indicated that he believed that the Toyota was also blue in colour.

[25] Mr. Hodgson testified that at the relevant time, the "Sunfire" was parked on the "right-hand side of the road" and that from his vantage point on the second floor balcony, he could see a dent located on its left, front fender. Mr. Hodgson stated that he was aware of the fact that the subject blue Sunfire was owned by his former mathematics teacher, who he described as "Mr. P."

[26] Mr. Hodgson advised that upon seeing the other blue car (the purported Toyota) pull away from the parked Sunfire; he left his balcony and "proceeded downstairs to let Mr. P. know about his car". Mr. Hodgson did not explain how he knew where Mr. P. was located at that time.

[27] Mr. Hodgson testified that shortly after he exited his residence, he found Mr. P. inside another building. He advised that he then left this building with Mr. P. in order to examine the damage to the Sunfire. Mr. Hodgson stated that upon examining the Sunfire, he noticed the existence of a "two-inch" dent in the vicinity of the driver-side door. He went on to state that Mr. P. was unable to open the driver-side door from the outside of the vehicle. When asked to describe the length of the dent, Mr. Hodgson indicated that it was "as a big as a corner of a bumper on a car".

[28] Mr. Hodgson testified that in the morning of the alleged collision, "the fire department was down the road letting out the water like they do", so that there was water on the side of the road. He advised that as a result of the existence of water on the road, he was able to observe that the blue-coloured vehicle which had left the scene of the apparent collision had backed out of a neighbour's laneway onto the roadway and had then turned towards the location of a stop sign. He stated that the wheels of the vehicle had left tracks on the roadway as it had moved through the water residue on the road and that the water track impressions showed that in backing out of the laneway, the subject vehicle made a "V-like" manoeuvre.

[29] Mr. Hodgson testified that the wheel impressions in the water on the roadway showed that the subject vehicle "came" from his neighbour's driveway and that it had moved from that driveway to the area where the Sunfire was parked on the road. In this regard, Mr. Hodgson stated that based on the water impressions he could see where the vehicle "crossed over the sidewalk, hit the water, backed into the vehicle [and] drove away".

[30] Mr. Hodgson testified that the vehicle which he saw pulling away from the parked Sunfire at the relevant time was the same vehicle which he had observed to be located in his neighbour's driveway "a number of times" over a period of one and one-half years prior to May 3rd, 2010.

[31] During cross-examination, Mr. Hodgson reiterated his testimony-in-chief that upon hearing the "crash and bang noise", he immediately looked down from his balcony location to determine the source of the noise. He agreed with the suggestion that at this point-in-time, he observed the Sunfire parked on the side of the road, in a "north and south" direction. He testified that at that same moment, he observed "the other vehicle" in a "T" position with the Sunfire, noting that it was located "right against" the Sunfire. When the defendant's counsel suggested to him that at the time of his initial observations, if the vehicles were not actually touching each other they were in close proximity to each other, he responded in the affirmative.

[32] The defendant's counsel then asked Mr. Hodgson if he could describe the actions of the other vehicle from the point of its impact with the parked Sunfire vehicle. Mr. Hodgson responded to this question by initially stating that the driver of the vehicle which apparently had struck the parked vehicle, "sped away" and subsequently did not stop at a stop sign.

[33] Upon being further cross-examined by the defendant's counsel relative to the manner in which the driver of the other vehicle moved away from the point of impact with the parked vehicle, Mr. Hodgson modified his testimony, slightly. In that regard, Mr. Hodgson acknowledged that he did not hear the tires of the vehicle "squealing" as it pulled away from the parked vehicle. He then agreed with the counsel's suggestion that the vehicle "just pulled away from the point of impact".

[34] The defendant's counsel then put it to Mr. Hodgson that there was nothing unusual about the speed or manner in which the vehicle was driven as it pulled away from the Sunfire. The witness disagreed with this proposition noting that the vehicle failed to stop at a stop sign which was approximately 20 feet in front of it. In this regard, Mr. Hodgson remarked that one does not need to squeal one's tires to pick up momentum over a distance of 20 feet.

[35] Upon being asked specific questions as to the actions of the vehicle as it pulled away from the parked vehicle and approached the stop sign, Mr. Hodgson testified that the subject stop sign was located on Wellington Avenue at its intersection with "the main street of Delhi". Mr. Hodgson stated that at the relevant time, he observed the subject vehicle pull away from the parked vehicle and then "briefly" slow down at the location of the stop sign "to look left and right" and "maybe to let off the gas" and then turn onto the said "main street of Delhi". He agreed with the defence counsel's suggestion that the driver of the subject vehicle performed a "rolling stop" as he/she approached the stop sign.

[36] Mr. Hodgson agreed with the defence counsel's suggestion that the subject highway, "Wellington Avenue", was a "relatively quiet street", except for the periods of time both before and after school, noting that a school was located on the street. Mr. Hodgson testified that while he was not able to remember the specific day of the week when the subject incident took place, he remembers that it took place on a week-day, as he had walked his children to their school that day.

[37] The counsel for the defendant suggested to Mr. Hodgson that the vehicle which struck the blue Sunfire was a "Chevy Cavalier". In response to this suggestion, the witness advised that he did not know the make or model of the vehicle, noting that "all cars look the same to [him]". He then admitted that he could not recall the colour of the vehicle which struck the Sunfire.

[38] Mr. Hodgson completed his testimony during cross-examination, by engaging in the following question and answer exchange:

Q: I take it as a result of the impact that you saw there's no car parts or body parts on the ground?

A: No.

Q: So did you see the bumper of the Cavalier at all?

A: Not really, no.

Q: You just saw…

A: I didn't, I just seen, I was just watching the vehicle, like, I didn't even get a licence plate.

Q: You just saw, you saw the dent in the front left quarter, front left fender?

A: Of the, of the parked car, yes.

Q: On the second car?

A: Yes.

[39] During re-examination, Mr. Hodgson testified that the driver of the vehicle, which had allegedly hit the Sunfire did not get out of the vehicle.

(ii) The Testimony of Mr. Roger Pasichnyk

[40] Mr. Pasichnyk testified that on May 3rd, 2010, he was working at a computer in the "Kinsmen Hall", hereinafter referred to as "the Hall". He advised that at that time, Mr. Hodgson, a person who knew to be a former student at Delhi District Secondary School, "burst through the door" of the Hall and advised him of "an occurrence" concerning his car.

[41] Mr. Pasichnyk stated that upon receiving the news from Mr. Hodgson, he exited the front door of the Hall to the area where his car was parked on the street in front of the Hall. The witness stated that as he approached "the street side" of his vehicle, he noticed that the "passenger side door, where the passenger side door met the front fender" was "caved in". When asked if he was able to open the door of the car, he advised that he was only able to open it a distance of about two inches. He went on to advise that his car was not damaged when he parked it.

[42] Mr. Pasichnyk testified that when he first approached his vehicle after being advised of the occurrence by Mr. Hodgson, there were no other persons around the vehicle other than Mr. Hodgson. He stated that at that time no one approached him to advise that they had damaged his vehicle. He went on to state that there were no notes or documents affixed to his vehicle from the party who had damaged it. He advised that he eventually took steps to repair the Sunfire.

(iii) The Testimony of Police Constable Garrett Grexton

[43] According to information contained in the "Interview Report" entered as exhibit no. 1 to this proceeding, on May 3rd, 2010 Constable Grexton was employed as a police officer with the Ontario Provincial Police.

[44] During examination-in-chief, Constable Grexton testified that on May 3rd, 2010, he received information pertaining to a motor vehicle collision. The officer advised that upon receiving the information he attended the scene of the reported collision on Wellington Avenue in the Town of Delhi. He later advised that the Town of Delhi was located within Norfolk County.

[45] Constable Grexton stated that upon arriving at the scene of the collision, he observed a vehicle parked on the north side of Wellington Avenue, which had sustained damage to its "front driver's side quarter panel and the driver's side door". The officer described the subject vehicle as a blue-coloured "Pontiac Sunfire", which bore Ontario licence plate number "ABBW314".

[46] Constable Grexton testified that after making his initial observations of the damaged vehicle at the collision scene he noticed the existence of markings on the roadway near the said vehicle, which he described as follows:

Later on I did observe that there was tire impressions leading from a residence across the street from where the Sunfire was parked. It appeared that a vehicle had left that driveway and the impressions came within a few inches of the, the vehicle and then proceeded, it would be westbound on Wellington.

The officer clarified his testimony in this regard, as follows:

It appeared that the vehicle left from, I can give you an exact address here, 166 Wellington Avenue in Delhi. The impressions were made from a mud puddle that was located in the driveway.

[47] Constable Grexton testified that after he made the observations of the "tire impressions", he attended the residence municipally known as 166 Wellington Avenue, where he spoke with a female person who verbally identified herself as "Ally Aspen".

[48] The officer stated that Ms. Aspen provided him with certain information. He went on to state that as a result of that information he spoke with the defendant over the telephone. He testified that he then "advised the defendant to return to the scene as she had struck a vehicle". The officer testified that the defendant eventually returned to the scene of the apparent collision on Wellington Avenue. He stated that when the defendant arrived at the scene, she identified herself by means of a valid Ontario photo driver's licence as "Carrie McMillan".

[49] Constable Grexton testified that at that point in time he interviewed the defendant and took a cautioned statement from her. He stated that he recorded the defendant's statement in a form described as an "Interview Report". He identified this document and it was entered into evidence as exhibit #1. He advised that after he completed the handwritten record of the interview the defendant was given an opportunity to read and sign the report.

[50] The subject "Interview Report" is contained in a form created for use by members of the Ontario Provincial Police. In the report, the defendant is described as "McMillan, Carrie", with a date of birth of April 30, 1985 and an address of "70 Joseph St., Tillsonburg". The report confirms that the defendant was interviewed by "P/C G. Grexton #12195" on May 3, 2010 between 10:48 a.m. and 10:56 a.m., "at the scene".

[51] The interview of the defendant is recorded in exhibit #1 as follows:

Q (Constable Grexton): I am investigating a MVC [motor vehicle collision] in which you were the driver involved. What can you tell me about the collision?

A (the defendant): I was backing out of my grandmothers driveway when my car came to a stop. I looked in my mirrors and didn't see anything, assumed I had just bumped in to the curb like I have done before. Didn't think anything of it and continued on my way to work. If I had known that I hit the car, I would have stayed and gave my insurance information.

Q: What were the weather and road conditions like at the time of the collision?

A: Weather was clear and sunny and the roadway was a little wet from previous rain.

Q: Is there anything else that you would like to add?

A: I regret it happening and I wished I had looked a little better. I wish it didn't happen.

[52] Constable Grexton testified that the vehicle being driven by the defendant when she arrived at the scene of the apparent collision was a "Chevrolet Cavalier", bearing Ontario licence plate number "ARTF370". He described the colour of this vehicle as "royal blue", similar to that of the subject Pontiac Sunfire. He stated that upon examining the condition of the "Cavalier", he noticed the existence of "scratches" on the passenger side of its rear bumper.

[53] Constable Grexton completed his testimony-in-chief by indicating that as a result of his investigation, he "charged Ms. McMillan with fail to remain contrary to the Highway Traffic Act of Ontario, section 200(1)(a)".

[54] During cross-examination, Constable Grexton testified that in his view both the subject Pontiac Sunfire and the subject Chevrolet Cavalier were similar in colour, noting that they were "close in the shade of blue". He stated, however, that the Sunfire was "a darker blue colour" than that of the Cavalier.

[55] Constable Grexton reiterated his testimony-in-chief that in inspecting the immediate vicinity of the location of the damaged Pontiac Sunfire, he noticed the existence of tire or wheel impressions on the roadway, apparently caused by the wet wheels of a vehicle backing out of the driveway to the residence at 166 Wellington Avenue; running from the driveway to a point distant a few inches from the Sunfire. He stated that the tire impressions were in the form of water marks on the road, which appeared to be connected to a mud puddle on the subject driveway.

[56] In cross-examining Constable Grexton relative to his observations of the subject tire impressions, the counsel for the defendant entered into the following question and answer exchange with the witness:

Q: So in that distance between the mud puddle and the few inches from the Sunfire do you see anything unusual in terms of the tread pattern that you observed?

A: I didn't go into detail about the tread pattern. From what I recall there wasn't too much detail. Because it was, it was water. It's hard to see an actual pattern.

Q: Right. But there is nothing unusual about it in terms of excessive speed backing up at all from what you could see?

A: No. There was no way I'd be able to tell that.

Q: Okay. And when the Cavalier pulls away from the Sunfire in terms of the point of impact are there tire prints leading I guess to the, to the west if I've got my directions right?

A: Yes. There, there was, the tread pattern did indicate that the vehicle did proceed westbound.

Q: Okay. And you can determine that by looking at the tread pattern that's left on the, on the pavement?

A: Not so much, not so much the tread pattern, the tire impressions. The tread pattern I didn't look at. But yes, the wheel impressions from going through the, the mud puddle.

Q: Okay. And did you detect any spinning of tires or any rubber on the pavement as to the…

A: No.

Q: …Cavalier pulling away from the Sunfire?

A: No.

Q: … And just to capsulize that, that point of, of the accident that you saw there's no sign of excessive speed as the vehicle pulls away from the Sunfire that you can determine?

A: That I could determine, no.

[57] During cross-examination, Constable Grexton testified that following his examination of the subject parked vehicle and the said tire impressions he attended the residence municipally known as 166 Wellington Avenue. He advised that he then spoke with a female person who proceeded to telephone the defendant on her cellular telephone. He stated that at that time he "got on the phone" and spoke with a female person who he believed to be the defendant, Ms. McMillan.

[58] At a later point in cross-examination, the defendant's counsel and Constable Grexton engaged in the following question and answer exchange with respect to the circumstances of the officer's interaction with the defendant:

Q: …When you spoke to the defendant on the telephone did she identify herself as Carrie McMillan?

A: I don't recall.

Q: Okay. In any event, did that person tell you then that she was unaware she had struck anything?

A: At that time I don't recall if she, she said that or not.

Q: Okay. Well the, the Crown synopsis that I've got says that she told you that she was unaware that she had struck anything.

A: Well if it's in the synopsis then I'm sure that that's the case.

Q: In any event, how soon after the phone call does Ms. McMillan attend?

A: I attended at 166 Wellington at 9:31…

Q: Okay.

A: I left the residence at 9:35 and Ms. McMillan arrived on the scene at 10:11.

Q: Any sense of why the delay at all?

A: For her to return?

Q: Yes.

A: She claimed that she was on her way to work.

Q: Okay. So do you feel that the time delay coming back was really unusual at all?

A: I didn't think so, no.

Q: And so when she comes back she's, she's apologetic and she's saying to you that she struck the curb?

A: Yes.

Q: And did you accept that?

A: No.

Q: You didn't accept that at all?

A: No.

Q: Okay. You didn't believe her?

A: No.

[59] Constable Grexton testified that after the defendant arrived at the scene of the collision, he interviewed her between 10:48 a.m. and 10:56 a.m. He stated that upon completing his interview of the defendant, he continued his investigation by interviewing Mr. Nicholas Hodgson. He advised that he finished his interview with Mr. Hodgson at 11:23 a.m. He indicated that he believed that he served the defendant with a summons for the subject offence some time prior to 11:29 a.m., when he left the scene of the collision.

(iv) The Testimony of the Defendant

[60] During her testimony of August 30th, 2012, the defendant Carrie Rachel McMillan, testified that she was 27 years of age and that she resided at 70 Joseph Street in Tillsonburg, Ontario. She advised that she was residing at the said address on May 3rd, 2010.

[61] The defendant testified that in the morning of May 3rd, 2010, she travelled by car from her residence to her grandmother's residence at 166 Wellington Street in Delhi, Ontario. It is noted that during the course of her testimony, Ms. McMillan referred to the subject highway as "Wellington Street" rather than "Wellington Avenue", as it had been described by both Mr. Hodgson and Constable Grexton. It must be remembered, however, that both the defendant's counsel and the prosecutor described the subject highway as "Wellington Street" when posing questions to the defendant both in examination-in-chief and cross-examination.

[62] The defendant testified that she attended her grandmother's residence on the said date in order to leave her infant son with her grandmother to be cared for, while she was at work in Woodstock, Ontario. She stated that the subject date was her "first day back to work".

[63] The defendant testified that on that date she was driving a dark blue-coloured, 2001 "Cavalier". She stated that when she drove from Tillsonburg to her grandmother's residence, her son was the only passenger in her vehicle. She advised that at that time, she was required to attend for work by 10:00 a.m. Accordingly, she believed that she would have arrived at her grandmother's residence at approximately 9:00 a.m.

[64] The defendant testified that when she arrived at her grandmother's residence, she sat in the car with her son for a while in order to say goodbye to him. She testified that during this period of time they were listening to her son's favourite song which was playing on the car radio. She advised that she eventually took her son into the residence in order to leave him with her grandmother.

[65] The defendant testified that once she dropped her son off she returned to her vehicle in order to travel to her place of employment. She indicated that upon entering her car, she started it and began to back it out of the driveway of the residence onto Wellington Street. In describing her actions in this regard, the defendant stated as follows:

I begin backing out of the driveway as I usually do. The car comes to a stop. I look into my, into my rear view mirror and my driver's side mirror; don't see anything and continue on my way to work just assuming, 'cause it kind of was a bump stop, it kind of jumped liked this so I assumed that maybe I hit the curb 'cause I didn't see anything when I looked in those mirrors and I continued on my way to work.

[66] The defendant testified that upon entering her vehicle after she dropped her son off, she put her seatbelt on. She advised that at that time the radio in the vehicle was on and it was quite loud. The defendant explained that immediately prior to dropping her son off, she and her son had remained in her vehicle while they listened to the radio. She stated that at that time, her son had turned up the volume of the radio. She noted that when she began backing out of the driveway the radio remained at that same volume level.

[67] The defendant testified that upon backing out of the subject driveway, she stopped at the end of the driveway and looked both ways for traffic, before moving on to Wellington Street. She advised that at that point in time, she believed that she did not look in her rear view mirror.

[68] The defendant testified that once she took steps to move her car in reverse on to Wellington Street, she did not look in either her rear-view mirror or her side-view mirrors, until she felt the said "bump stop" when she stopped her vehicle. She stated that she then looked in both her rear-view mirror and her driver's side-view mirror. When she was asked what happened after she looked in her rear-view mirror and her side-view mirror, she advised as follows:

I see nothing and assume that, like I said, it was the curb and put it into drive and continued on my way to work like I had planned.

[69] In answer to her counsel's question as to what she meant when she stated that she felt a "bump stop", the defendant testified as follows:

It felt like my tire kind of hit the curb. Like when your tire comes in contact with something and it kind of does like a bounce 'cause it's rubber hitting something.

[70] The defendant advised that as she was on her way to her place of employment she received a call on her cellular telephone from her sister. She testified that upon receiving the telephone call she pulled over to the side of the road and answered the telephone. She advised that the police officer "got on the phone", told her everything and requested that she return to the scene of the collision. The defendant estimated that she received the telephone call from her sister approximately 30 minutes after she had backed out of the driveway of her grandmother's residence. She noted that at that time she was located just outside of the Town of Woodstock.

[71] The defendant testified that upon speaking to the police officer at that time, she informed him that once she had contacted her employer, she would immediately return to the scene of the collision. She stated that she believed that it took her about 30 to 40 minutes to return to her grandmother's residence.

[72] The defendant testified that upon returning to the said residence she noticed the presence of the investigating police officer who was in the course of conducting his investigation. The defendant stated that the police officer eventually called her over in order to take a statement from her.

[73] The defendant testified that upon returning to her grandmother's residence, she observed a blue "Sunfire" situated "right at the end of [her] grandmother's driveway and on the opposite side of the road". The defendant stated that at that time she noticed the existence of both a dent in the "Sunfire" and a few "very minor scratches" on the "fender" of her vehicle.

[74] The defendant testified that after she provided her statement to the police officer, she proceeded to take three photographs of both the subject Sunfire vehicle and her motor vehicle. The photographs were taken by the defendant on a digital camera. She identified the photographs during the course of her testimony-in-chief.

[75] The first photograph was an image of the subject Sunfire vehicle, which was parked on the side of the road directly opposite to the location of the driveway of 166 Wellington Avenue. In interpreting this image, the defendant described the colour of the Sunfire as "dark blue". She noted that the vehicle which she was driving at the material time was also dark blue in colour. When she was asked how she would describe the difference between the colour of her vehicle at the subject time, and that of the Sunfire, the defendant responded "identical".

[76] In describing the damage to the Sunfire as shown in the subject photograph, the defendant noted that the Sunfire had sustained damage in the form of a "dent" to its "front left fender".

[77] This photograph was then entered into evidence as exhibit #2 to the proceeding.

[78] The defendant then identified a second photograph, which was entered as exhibit #3 to this proceeding. She advised that the photograph displayed an image of the Sunfire vehicle which was "sitting across from [her] grandmother's driveway". She noted that the dent in the front left fender of the vehicle was depicted in the photograph.

[79] The defendant then identified a third photograph which she took on May 3rd, 2010. This photograph contained an image of the rear fender of the defendant's Chevrolet Cavalier. She noted that the photograph correctly reflected the colour of her vehicle at the subject time and that the image of the rear fender of the Cavalier contained in the photograph, showed the presence of "minor scratches" on it. This photograph was then entered into evidence in this proceeding as exhibit #4.

[80] Upon reviewing the image set out in exhibit #4, I note that it appears to depict the right rear fender as well as the right corner of the bumper of the Cavalier rather than all of its rear fender. It would appear that the scratches are actually located on the right rear-corner of the vehicle's fender and bumper.

[81] In completing her testimony-in-chief, the defendant engaged in the following question and answer exchange with her counsel:

Q: So the ultimate question to be asked of you is this, why didn't you stop at that particular point when you felt the, as you call a bump stop at that location?

A: Like I said I looked in my mirrors. I didn't see anything. And not thinking I just assumed and continued on my way.

Q: So did you believe that you had struck a vehicle at that time or not?

A: No. I believed I had struck the curb because I looked in my rear-view mirror and my driver's side mirror and seen nothing. If I would have possibly looked in the other, my passenger-mirror maybe I would have seen something but that at that time I, those are the only two mirrors I looked in and I didn't see anything.

[82] During cross-examination, the defendant advised that prior to the incident of May 3rd, 2010, she had only visited her grandmother's residence at Christmas-time. She described Wellington Street, in the Town of Delhi as a very narrow two-lane street.

[83] The defendant testified that when she arrived at her grandmother's residence with her son in the morning of May 3rd, 2010, she did not see a blue-coloured car parked on the street in front of the residence. She acknowledged that while a blue-coloured car might have been parked there at the time, she "didn't notice it". She stated that upon arriving at her grandmother's residence, she pulled in and as she did so she was talking with her son.

[84] The defendant testified that when she returned to her car after dropping her child off with her grandmother, she entered her car and proceeded to back it out of the driveway. The radio in the vehicle was on at that time.

[85] In response to the prosecutor's question as to whether she looked in her rear-view mirror as she moved her vehicle in reverse in the driveway, the defendant stated as follows:

In my grandmother's driveway it is quite narrow so there is a fence on one side and she has a large cement deck that's in front of her house on the other side. So I was watching my drive, my door, the door mirrors to make sure that I was backing up straight 'cause you have to back up very straight. So, no, I did not look in my rear-view mirrors because I was concentrating on those.

[86] The defendant testified that she took the photographs entered as exhibit nos. 2, 3 and 4 she arrived back at the scene of the collision after being contacted by the investigating police officer. She confirmed that exhibit nos. 2 and 3 were photographs of the vehicle which was parked on the side of Wellington Street opposite to the location of her grandmother's house. She stated that she had no knowledge of the existence of that parked vehicle, prior to the time when she returned to the scene of the collision.

[87] The defendant reiterated her testimony-in-chief that exhibit #4 was a photograph of a portion of the vehicle which she had been driving on May 3rd, 2010. She advised that she was not aware of the damage to the rear fender of her vehicle, as shown on the photograph, prior to May 3rd, 2010.

[88] In concluding his cross-examination of the defendant, the prosecutor engaged the defendant in the following question and answer exchange:

Q: So the next question I have is when you back out of the driveway and are now in the road did you make any attempt to turn your vehicle to go in the direction that you wanted to go?

A: Yes. As I was backing out I turned the wheels so that I could, I don't know how to describe it, in the way to go, continue down the street. Yes.

Q: So let's say for the sake of the discussion you're backing out and you want to go to your right, you would have cranked it so you could go and turn and go…

A: Yes.

Q: …and go to the right?

A: Yes.

Q: And would you agree with me that in backing out your car in that particular fashion the consistency of the damage to the corner of your fender would be consistent with the damage that is shown on photographs one and two [being exhibits two and three]?

A: I do to some extent, if that makes sense.

Q: Okay. Now you never heard a crash?

A: No.

Q: Because your radio was up too loud?

A: I would assume that would be why. It was up loud.

Q: So you cannot dispute the testimony of the young man who said "I heard a crash"?

A: I cannot because I personally did not hear it. If he heard it, he heard it. But I cannot say that I heard it personally.

Q: Okay. In regards to the colour of the vehicles you suggested through your testimony that basically the colour of the two vehicles are identical?

A: Yes.

Q: So two things I'm asking is when you've now got your car turned and you looked in your rear-view mirror you're in a position that basically the car that was directly behind you is now off to your right. Is that correct?

A: Yes.

Q: So in looking in your rear-view mirror you would not have seen it. Correct?

A: I assume so, yes, because I did not.

[89] Following the completion of the defendant's testimony, the defendant's counsel acknowledged, on behalf of the defendant, that the damage in the form of a dent located on the left front fender of the parked Sunfire, as depicted in exhibit nos. 2 and 3, constituted damage caused to that vehicle "as a result of being struck" by the defendant's vehicle. In this regard the defendant's counsel stated, in part, as follows:

Well I think it, it's common ground that that's the damage the vehicle incurred as a result of being struck by Ms. McMillan's vehicle. I'm prepared to admit that that's the damage caused by Ms. McMillan's vehicle. There's no secret to that at all. I think Mr. Pasichnyk last time testified that his vehicle was in good physical shape when he parked it there…

…But I'm prepared in order to move the trial along to agree that that's the damage caused by Ms. McMillan's vehicle. …

THE ISSUES

[90] The ultimate issue in this proceeding is whether or not the prosecution has proven the subject charge against the defendant beyond a reasonable doubt.

[91] The sub-issues flowing from the ultimate issue are as follows:

whether or not the prosecution has proven all of the elements of the actus reus of the subject offence, to the standard of proof beyond a reasonable doubt; and
if the prosecution has proven the actus reus of the offence to the requisite standard, whether or not the defendant has established, on a balance of probabilities that in committing the prohibited act, she exercised reasonable care, so as to excuse her from quasi-criminal liability for the subject strict liability offence.

ANALYSIS

[92] In this proceeding, it is alleged that on or about the 3rd day of May, 2010 at Norfolk County, the defendant committed the offence of driving a motor vehicle on Wellington Avenue, in the Town of Delhi, and being directly involved in an accident did fail to remain at or immediately return to the scene of the accident.

[93] The theory of the prosecution is that on May 3rd, 2010, the defendant was driving her Chevrolet Cavalier motor vehicle on a highway, to wit: Wellington Avenue in the Town of Delhi and in the County of Norfolk, when it collided with a motor vehicle, to wit: a blue-coloured Pontiac Sunfire, which was parked on Wellington Avenue. The prosecution argues that the collision with the parked vehicle constitutes an "accident" for purposes of paragraph 200(1)(a) of the H.T.A. The prosecution further submits that following the collision, the defendant failed to remain at or immediately return to the scene of the accident, as required by the said paragraph.

[94] In my view the following facts have been proven by the uncontroverted evidence in this proceeding, beyond a reasonable doubt:

that on the 3rd day of May, 2010, at approximately 9:00 a.m., the defendant was driving a motor vehicle, being a car described as a 2001 Chevrolet Cavalier, dark blue in colour;
that at the said time, the defendant was driving the said vehicle on a highway, to wit: Wellington Avenue, in the Town of Delhi;
that the Town of Delhi is located in the County of Norfolk;
that in driving her vehicle on Wellington Avenue at the material time, the defendant proceeded to back her vehicle out of a driveway municipally known as 166 Wellington Avenue, in the Town of Delhi, in a northerly direction onto Wellington Avenue;
that at that time, while the defendant was driving her vehicle in reverse, it came into contact with a motor vehicle, being a blue-coloured Pontiac Sunfire automobile, which was parked on the north side of Wellington Avenue opposite to the location of the subject driveway;
that immediately following the time of the aforesaid motor vehicle accident, the defendant drove her vehicle away from the scene of the accident by travelling in a westerly direction on Wellington Avenue and on other highways leading out of the Town of Delhi;
that at a point in time approximately 30 minutes after the time of the subject accident, the defendant was contacted by telephone by Police Constable Garrett Grexton of the Ontario Provincial Police, and asked to return to the scene of the accident;
that the defendant returned to the scene of the accident on Wellington Avenue, in the Town of Delhi, at 10:11 a.m. on the subject date, approximately one hour after the time that the subject accident had taken place.

[95] The findings of fact as set out above establish the following elements of the actus reus of the subject offence to the standard of proof beyond a reasonable doubt:

that on May 3rd, 2010, the defendant, Carrie Rachel McMillan was in charge of a vehicle, which was directly involved in an accident; and
that the said accident occurred on a highway, to wit: Wellington Avenue, in the Town of Delhi and in the County of Norfolk.

[96] In reaching my conclusion that an accident had occurred on a highway, within the meaning of paragraph 200(1)(a) of the H.T.A., I have applied the definition of the term "accident" as stated by Osler J. in his decision in Regina v. Hill, supra, as follows:

"… an accident has occurred the moment two vehicles, a vehicle and a pedestrian, or a vehicle and any object come into contact accidentally and that even without damage, the obligation to remain is immediately imposed by the section.

[97] While I acknowledge that there is no direct evidence before me that the defendant's vehicle touched the Pontiac Sunfire, the totality of the undisputed circumstantial evidence in this proceeding coupled with the admission made by the defendant's counsel that the vehicle driven by the defendant struck the Sunfire, leads me to only one rational inference; that at the material time the defendant's vehicle accidentally came into contact with the Sunfire.

[98] In light of my finding that the prosecution has proved beyond a reasonable doubt that at the material time, the vehicle being driven by the defendant was directly involved in an accident on a highway, I must now determine whether the defendant's actions in failing to remain at or immediately return to the scene of the accident, were voluntary actions on her part. In accordance with the principles enunciated by Grange J. in Regina v. Racimore, supra, if I am left in a state of reasonable doubt of the fact that the defendant was aware that her vehicle had come into contact with the parked vehicle at the relevant time, then the defendant's action in failing to remain at or immediately return to the scene of the accident would properly be characterized as an involuntary action. In that scenario, the defendant would be entitled to be acquitted of the charge on the basis that the prosecution had failed to establish that the actus reus of the offence had been committed by the defendant voluntarily.

[99] In this case the preponderance of the evidence proffered by the prosecution appears to support the inference that the defendant either knew or ought to have known that at the material time, her vehicle had struck the parked Sunfire vehicle. According to independent prosecution witness Mr. Hodgson, he heard a "crash and bang" noise at the relevant time, following which he observed a vehicle removing its bumper off of the side of the said parked vehicle and then quickly moving away from the parked vehicle towards an intersection, where it failed to stop for a stop sign. Additionally, the tire impressions on the road at the time support an inference that the defendant ought to have been aware of the presence of the vehicle parked on the road and that her vehicle had come in contact with it.

[100] On the other hand, the defendant denies knowledge of the accident. In this regard, she asserts that in backing out of the subject driveway onto Wellington Avenue she looked both ways for traffic on the highway, but did not look in her rear-view or side-view mirrors.

[101] The defendant testified that as she backed her vehicle out of the driveway and on to the highway, she turned the wheels of the vehicle so that she could travel in a forward direction down the street, once she had completed the reversing manoeuvre. She maintained that she did not look in any of her mirrors as she was in the process of backing up out of the driveway onto Wellington Avenue. She submitted that she did not look in her mirrors until her vehicle came to a stop, when she felt a "bump stop". She stated that once she felt the bump stop she looked in both her rear-view and driver's side view mirrors, but did not see anything. She testified that at that time she assumed that the rear wheels of her vehicle had touched the curb of Wellington Avenue.

[102] On a number of times during her testimony, the defendant stated that she was not aware that her vehicle had bumped into the side of the parked vehicle. Furthermore, in support of her assertion that she did not know that her vehicle had struck the parked vehicle, she advised that the volume of the radio in her vehicle was turned up to a significant degree.

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

[104] When I embark on such an assessment, I must remind myself that the concept of reasonable doubt applies to the assessment. Furthermore, I must instruct 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] 1 S.C.R. 742 (S.C.C.). In the said decision, commencing at paragraph 26, Cory J. explained how credibility should be assessed, in part, as follows:

…It is incorrect to instruct a jury 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 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.

[105] In his decision in Regina v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.), Cory J. defined the expression "beyond a reasonable doubt", in part, 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.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

[106] In order to determine whether the subject offence has been proven beyond a reasonable doubt, I must apply the W.(D.) principles and assess the defendant's exculpatory evidence in the context of the evidence as a whole. In doing so, I must avoid reaching a determination that the requisite standard of proof has been met, based upon a preference of the testimony of the prosecution witnesses over that of the defendant.

[107] In my view, prosecution witnesses Mr. Roger Pasichnyk and Police Constable Garrett Grexton testified in a clear and unequivocal manner. Their respective evidence was internally consistent.

[108] While Mr. Pasichnyk did not undergo cross-examination, his testimony was largely consistent with the totality of the evidence in this proceeding. On the other hand, the one glaring external inconsistency in his evidence was his representation that the damage sustained to his Pontiac Sunfire on the date in question, was located on its passenger side rather than on its driver's side. This statement is clearly contrary to the preponderance of the evidence in respect of the location of the damage to the said vehicle. In light of this unfortunate inconsistency, I find that I am unable to afford any significant weight to Mr. Pasichnyk's testimony, in terms of its overall reliability.

[109] During the course of both his testimony-in-chief and cross-examination, Constable Grexton presented his evidence in a dispassionate and objective fashion, relying upon his investigative notes, which were made contemporaneously with the time of his investigation, for purposes of refreshing his existing memory of the relevant events. He did not attempt to overstate or embellish his observations or the results of his investigation. Furthermore, the strength of his testimony-in-chief was not weakened through cross-examination. In my view the officer's evidence in this matter may properly be considered as being both credible and trustworthy.

[110] The prosecution evidence which is most directly relevant to the outstanding issue of whether or not the defendant was aware that she had been involved in an accident at the relevant time is the testimony of Mr. Nicholas Quinn Hodgson. Mr. Hodgson's observations of the manner in which the defendant's vehicle pulled away from the Pontiac Sunfire and subsequently left the vicinity of that vehicle, constitute circumstantial evidence pertaining to the state of mind of the defendant at the material time.

[111] In assessing the credibility of Mr. Hodgson's evidence I must remind myself that other than Constable Grexton, he is the only witness in this proceeding who may be described as independent. He testified from his memory and was responsive to all questions asked of him. Furthermore, his testimony was remarkably precise, given the fact that the events took place two years prior to the time of his testimony.

[112] On the other hand however, Mr. Hodgson appeared to be unusually passionate in presenting his testimony, given the fact that he did not have an interest in the outcome of the proceeding. For example, during his testimony in chief he described the actions of the purported Toyota vehicle as it was moving away from the parked Sunfire, as "speeding away" from the vehicle. He continued to describe the actions of the moving vehicle in this fashion during the early part of his testimony during cross-examination, when he stated that after the moving vehicle impacted the parked vehicle it "sped away" and failed to stop at a stop sign.

[113] At a later point in cross-examination, however, Mr. Hodgson modified his testimony in respect of the manner in which the moving vehicle left the scene of the apparent accident, by acknowledging that it did not "squeal" its tires in leaving the vicinity of the parked vehicle, but that it "just pulled away".

[114] Mr. Hodgson further modified his testimony relative to the actions of the moving vehicle once it approached the location of a stop sign approximately 20 feet away from the parked vehicle on Wellington Avenue. While he initially stated that the moving vehicle failed to stop for the stop sign when it turned from Wellington Avenue onto the "main street of Delhi", he later agreed with the suggestion made by the defendant's counsel that in approaching the subject stop sign, the vehicle performed a "rolling stop".

[115] In my view, the strength of Mr. Hodgson's testimony pertaining to the actions of the moving vehicle (later determined to be the defendant's vehicle) as it left the area of the accident, given both in chief and during the early part of cross-examination, was diminished by his testimony proffered in the latter part of his cross-examination. It is in my view quite apparent that Mr. Hodgson's initial description of the defendant's vehicle "speeding away" from the scene of the accident was an overstatement of the defendant's driving conduct as she moved away from the location of the parked vehicle. This apparent embellishment of his observations is inconsistent with the type of objective and impartial evidence which one might expect to receive from an independent witness.

[116] Accordingly I find that Mr. Hodgson's testimony that the defendant's vehicle sped away from the scene of the accident is not a reliable account of that particular event. In all other respects, however, I find Mr. Hodgson's testimony relative to the circumstances of the subject charge to be both credible and trustworthy.

[117] During the course of her testimony, the defendant presented her version of the events pertaining to the subject offence in a clear and unequivocal manner. Her testimony was both detailed and internally consistent. Furthermore, the strength of her account was not significantly weakened by the prosecutor's extensive cross-examination. In my view the defendant presented as a credible witness.

[118] In this proceeding, the defendant acknowledged that at the material time she was driving her vehicle in reverse motion on Wellington Avenue and that in doing so it struck the subject Pontiac Sunfire, which was parked on the highway. She submitted, however, that at the time of the accident, she did not know that her vehicle had come into contact with the parked vehicle. Throughout her testimony, she steadfastly maintained that at the relevant time, the rear wheels of her vehicle had struck the curb of the highway and that she was, therefore, unaware of the fact that she was involved in an accident on the said highway.

[119] The defendant argued that her action in failing to remain at or immediately return to the scene of the accident was an involuntary act predicated upon her lack of knowledge that her vehicle had contacted the parked vehicle.

[120] In applying the W.(D.) principles to the case at bar, I find that I am not able to firmly believe the exculpatory evidence of the defendant, due primarily to its obvious lack of independence. On the other hand, when I consider the defendant's version of the relevant events in the context of the totality of the evidence in this proceeding, I find that I am left in a state of reasonable doubt that the defendant was aware that she was directly involved in an accident on Wellington Avenue, at the material time.

[121] In my view the defendant's explanation that as she was backing out of the driveway of 166 Wellington Avenue onto the said highway, she experienced a "bump stop", which caused her to believe that the rear wheels of her motor vehicle had hit a curb, is plausible. The explanation causes me to be left in a state of reasonable doubt as to her guilt of the subject charge. My finding in this regard is based on an objective comparison between the defendant's version of the relevant events and the testimony of the prosecution witnesses. The credibility of the defendant's explanation in this regard is not undermined in any way, by the testimony of any of the other witnesses in this proceeding. Furthermore, the credibility of the said explanation has not been impeached through cross-examination.

[122] The only evidence before me relative to the defendant's driving conduct as she is backing out of the driveway onto Wellington Avenue is from the defendant herself.

[123] In this regard, the defendant states that she was not aware of the presence of the blue Sunfire parked on the street opposite to the entrance to the subject driveway at the time of the subject accident. She advised that she did not look into her rear-view or side view mirrors as she was backing down the subject driveway before entering onto the highway. Furthermore, she advised that she did not look in her rear-view or side view mirrors when she reached the end of the driveway, before backing out onto the highway.

[124] The defendant testified that as she was moving in reverse on Wellington Avenue, her vehicle suddenly came to a stop when she experienced a "bump stop". The defendant did not hear a crash or bang noise. The volume of the radio in the defendant's vehicle was turned up quite loud. She assumed that her rear tires had contacted the curb of the highway, as the bump stop sensation was, in her view, similar to what she had experienced in the past when the tires of her vehicle had struck a curb and the tires would bounce off of the curb.

[125] Finally the defendant testified that when her vehicle came to an unexpected stop, occasioned by what she thought was the curb of the highway, she looked in her rear-view mirror and her driver's side-view mirror and did not see anything. She testified that she then shifted her vehicle into drive and straightened out her vehicle to proceed down the highway, without knowing that the rear bumper of her vehicle had struck the left side of the parked Sunfire.

[126] There is no evidence before me to contradict the defendant's testimony relative to her actions as she backed down the driveway of her grandmother's residence and then continued to back out of the driveway on to Wellington Avenue. Mr. Hodgson did not make any observations of the actions of the defendant's vehicle until he heard a crash and observed the defendant's vehicle situated in a perpendicular position relative to the Sunfire.

[127] It is acknowledged that parts of Mr. Hodgson's testimony suggest that the vehicle driven by the defendant moved away from the location of the damaged Sunfire vehicle at a high rate of speed. There is no question that Mr. Hodgson felt that the actions of the vehicle as it sped away from the scene of the accident and failed to stop for a stop sign, were consistent with the actions of a driver who had caused an accident and who was attempting to avoid detection.

[128] As stated above, Mr. Hodgson's statements made both in chief and during cross-examination that the defendant's vehicle sped away from the scene of the accident, were substantially weakened during cross-examination. In this regard, Mr. Hodgson modified his initial testimony by acknowledging that following the accident the defendant's vehicle "just pulled away from the point of impact" without "squealing" its tires and travelled a short distance to the location of a stop sign, where it made a rolling stop. In my view the defendant's observations of the actions of the defendant's vehicle immediately following the time of the collision, are not precise enough to permit me to draw a reasonable inference that the defendant was conscious of the fact that her vehicle had actually impacted the parked vehicle.

[128] In my view, based on the totality of the evidence before me, it is logical to infer that the defendant's subjective belief that she was not involved in an accident at the material time was also objectively reasonable.

[130] The defendant was apparently not keeping a proper lookout as she was backing down the driveway and out on to Wellington Avenue. She not only negligently failed to use her rear and side-view mirrors as she was backing out of the driveway, but she failed to turn around and look over her shoulder towards the rear of her vehicle to account for any traffic or obstructions on the highway which could impede her actions in backing-up onto the highway.

[131] Furthermore, during the relevant time the audio-volume of the radio in the defendant's car was turned up, which was likely a cause of her inability to hear any significant noise associated with the subject collision. Finally, by the time that the defendant's vehicle came to an unexpected stop, she had manoeuvred her vehicle into a position where her vehicle was almost parallel to the parked Sunfire. It was at that moment that she looked into her rear-view mirror and her driver's side-view mirror in an attempt to discover the cause of the bump-stop.

[132] Upon looking into the mirrors she did not see anything which suggested to her that she had struck another vehicle, a pedestrian or an object. This observation made sense since at that point in time the parked vehicle would have been located to her right, out of the range of reflection captured by ether of her rear-view mirror or the side-view mirror located on the left side of her vehicle.

[133] While it is certainly arguable that the defendant could have exercised greater diligence in investigating the cause of the sudden and unexpected bump stop at the material time, her professed lack of awareness of the fact that her vehicle had come into contact with the parked vehicle was based on a unique set of circumstances, which when weighed in the context of the evidence in this proceeding as a whole, was both plausible and sensible.

[134] Accordingly, based upon the application of the second prong of the W.(D.) principles, I am satisfied that the defendant's exculpatory testimony on this proceeding is sufficiently credible to leave me in a state of reasonable doubt that the defendant knew that the vehicle of which she was in charge at the material time, was directly involved in an accident.

[135] It has not been shown that the defendant was aware that her Chevrolet Cavalier had touched the Sunfire at the material time. The defendant's action in failing to remain at or immediately return to the scene of the accident was, therefore, an involuntary act. In accordance with the principles enunciated in Regina v. Racimore, supra, the prosecution has failed to prove that the defendant committed the actus reus of the subject offence voluntarily. As the prosecution has failed to prove this essential feature of the actus reus of the subject offence, beyond a reasonable doubt, the defendant is found not guilty of the subject offence.

THE DECISION

[136] For the reasons stated above, the prosecution has failed to meet its burden of proving all of the elements of the actus reus of the subject offence, beyond a reasonable doubt. In light of my finding in this regard, I do not need to consider the sub-issue of whether the defendant has proven, on a balance of probabilities, the defence of having exercised reasonable care.

[137] The prosecution has failed to prove the subject charge against the defendant, beyond a reasonable doubt. The defendant is therefore found not guilty of the charge under paragraph 200(1)(a) of the H.T.A. and the information is endorsed as being dismissed.

Released: January 24th, 2013

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

R. v. McMillan, 2013 ONCJ 25

Case Summary

Court File and Parties

Statutes, Regulations and Rules Cited

Cases Cited

Publications Cited

INTRODUCTION

THE LAW

(i) Relevant Statutory Provisions

(ii) Relevant Common Law

THE EVIDENCE

(i) The Testimony of Mr. Nicholas Quinn Hodgson

(ii) The Testimony of Mr. Roger Pasichnyk

(iii) The Testimony of Police Constable Garrett Grexton

(iv) The Testimony of the Defendant

THE ISSUES

ANALYSIS

THE DECISION

Cited By (2 cases)

Stephens v. Sommerville, 2021 ONSC 1958

R. v. Despot, 2018 ONCJ 556

Judge

Counsel

Parties

Areas of Law