Court Information

Court: Ontario Court of Justice

Date: January 13, 2020

Between:

CITY OF TORONTO

— AND —

CLAUDIA P. VALDES

Before: Justice of the Peace C. Cushnie

Heard on: October 20 and November 20, 2019

Reasons for Judgment released on: January 13, 2020

Counsel

For the Prosecution: R. Leong

For the Defendant: O. Tyshchenko (agent for Jason Pearce, agent for Claudia P. Valdes)

Judgment

JUSTICE OF THE PEACE CUSHNIE:

The Charge

[1] Ms. Claudia Valdes stands charged with being an owner of a motor vehicle bearing Ontario License Plate #CEBE 486 which was involved in an accident on Northbound Don Valley Parkway south of Eglinton Avenue East and the vehicle being in charge of one Valdes, Claudia fail to remain at or immediately return to the scene of the accident on May 16, 2018 in the City of Toronto, in the Province of Ontario contrary to section 200 of the Highway Traffic Act.

Procedural Matters

[2] The prosecutor called two witnesses in this matter: Ms. Mei Jeng Su, a civilian witness and Ms. Tammaorg, a police officer with Toronto Police Services. The defendant who was not present was represented by an agent.

[3] In this matter, the prosecutor bears the onus of proving beyond a reasonable doubt the charge that is before the Court: that a motor vehicle bearing Ontario License Plate number CEBE 486 was involved in an accident and that the vehicle being in charge of by Claudia Valdes failed to remain at or immediately return to the scene of an accident. This is a strict liability matter. The defence available is that of due diligence.

Exhibits

[4] Presented into evidence and marked as Exhibits to this hearing were the following documents:

• Exhibit 1 – Copy of Excerpt of section 200(1) and 207(1) of the Highway Traffic Act
• Exhibit 2 – R. v. Park et al., 2003 CarswellNfld 279
• Exhibit 3 – R. v. Blier, 2002 CarswellOnt 5837
• Exhibit 4 – Photograph of license marker CEBE 486
• Exhibit 5 – Photograph of license marker GVAY 958
• Exhibit 6 – Ministry of Transportation Plate by Date search
• Exhibit 7 – Ministry of Transportation VIN by Date search

Evidence

Witness 1: Ms. Mei Jeng Su (Civilian Witness)

[5] Ms. Su testified that she was travelling in her Tesla motor vehicle northbound on the Don Valley Parkway in the City of Toronto, on May 16, 2018 at approximately 3:00 p.m. in the afternoon. She testified that she was heading home on that day and that the weather was good, the roads were dry and the traffic was very slow.

[6] She testified that she was driving in the outermost left lane next to the emergency lane when she heard a noise and felt the collision. She testified that she was rear ended by the vehicle behind her. She testified that she got out of her vehicle and that the driver of the other vehicle also got out of their vehicle. She testified that the driver of the motor vehicle was a male with black hair and facial hair and approximately 165cm in height.

[7] It was her evidence that the driver of the other motor vehicle made a suggestion that they pull into the emergency lane. It was her evidence that they did not exchange information. She testified that she started her vehicle towards the emergency lane but noticed that the driver of the other motor vehicle was moving his vehicle to the lane to the right. It was her testimony that it was her impression that the driver was not intending to pull into the emergency lane. It was her evidence that she honked to indicate that he should stop and that after honking several times, she also made the lane change to the right and followed the vehicle as it proceeded northbound on the Don Valley Parkway and then making the exit at Eglinton Avenue East. It was her testimony that she never lost sight of the motor vehicle. She testified that she continued to follow the motor vehicle after it exited at Eglinton Avenue East until the motor vehicle made a southbound turn onto a side street.

[8] It was her evidence that when the motor vehicle stopped on the side street on Carbona Avenue that she took a picture of the license plate marked as Exhibit 4 in this hearing and had her documentation ready to exchange information before exiting her vehicle. She testified that she spoke to the driver but there was some language barrier. It was her evidence that while she had her documentation ready to exchange information that the driver of the motor vehicle did not produce any documentation and when she thought he was going to get his documentation that he went back into his vehicle and drove away. She did not follow the vehicle again.

[9] It was her evidence that she attended at the reporting center where she reported the accident. At the collision center, she testified that a picture of the rear of her Tesla vehicle had been taken that shows the rear damage to her vehicle. The photo showed the license plate number GVAY 958 which she indicated was the license plate for her vehicle, the picture was marked as Exhibit 5 to this hearing.

[10] She further testified that the Tesla vehicle had sustained damage to the rear bumper. The amount of damage to her vehicle was estimated at approximately $12,000-$15,000.

[11] In cross examination, Ms. Su testified that the motor vehicle never left her sight and that she never got close to the vehicle to check the Vehicle Identification Number and that she had wanted to inspect the other motor vehicle but did not get a chance because the other driver left the scene. She also indicated that the driver was a male.

Witness 2: Officer Tammaorg (Toronto Police Service)

[12] The second witness in this hearing was Officer Tammaorg. Officer Tammaorg is employed by the Toronto Police Service as an investigator and is currently assigned to the East Reporting Collision Center. She was so employed on May 16, 2018.

[13] She testified that she was assigned to investigate a fail to remain collision that had been reported by Ms. Su. She was assigned the file on May 22, 2018. She was given a report along with a printout through the police records. It was her evidence that as part of her investigation that she ordered through the Ministry of Transportation a plate by date search marked as Exhibit 6 in this hearing; as well as a VIN by date search marked as Exhibit 7 and she did an extended driver record search for the registered owner of the vehicle.

[14] The vehicle involved in the collision was identified as a Hyundai Santa Fe vehicle registered to Claudia Valdes. The license plate for the vehicle was CEBE 486.

[15] It was the officer's testimony that along with the report there was a photograph that was attached and electronically uploaded. She identified the photograph marked as Exhibit 4 as the photo that was electronically uploaded with the report.

[16] The officer testified that once she was able to identify the owner of the vehicle that she sent a registered letter to the owner. The officer testified that she sent the registered letter to Claudia P. Valdes at [address redacted] on June 11, 2018. The officer testified that she received a call from a woman identifying herself as the daughter of Claudia on June 15, 2018. The officer testified that she had asked the daughter to speak with Claudia Valdes but believed that there was language barrier and was unable to speak with her directly.

[17] The officer testified that she attempted to contact the caller on June 29, 2018. She testified that she called the number that the person had initially called her from on June 15, 2018 but was unable to leave a message as the voicemail messages were full. Further, it was her testimony that the introduction for the voicemail message that came on was for an individual named Angie Gomez. She testified that she recognized the voice from the voice mail message as the same person that she had initially spoken to on June 15th. The officer testified that she attempted to call the telephone number again on July 3rd, July 16th and again on August 5, 2018 but was unsuccessful in reaching the caller. The officer testified that she has had no response to those calls. Nor has she heard from Claudia Valdes, herself with respect to the accident that was reported.

[18] Based on her investigation from the documentation that she received, including the photo, the statement and damage to the vehicle that she was satisfied that she was able to lay charges against the owner of the vehicle for fail to remain.

[19] It was the officer's evidence that there had been no report filed by the other driver for the accident that occurred on May 16, 2018.

[20] In cross examination, the officer testified that the investigative steps that she took in this matter was to read the file, that she made calls to the victim for further information, that she check to ensure that the vehicle match the description, the plate and the registered owner. She testified that she will usually attempt to find a telephone number and if she can't find a number that she would attempt to locate an address to send a letter to advise them to contact her.

[21] She indicated that she had left voice mail messages for the owner to contact her on June 29th, July 3, July 16 and August 5th. She testified that she got the number from the caller on June 15th who indicated that she was the daughter of Claudia.

[22] She further testified in cross examination that she had not attended at the address nor was there was a car sent to the address. She testified that a police car is sent out in more serious matters, including criminal matters. The officer further testified that the registered owner of the Hyundai Santa Fe vehicle that was involved in the collision was a female.

[23] No further was evidence was called.

Legal Analysis

The Burden of Proof

[24] It is the prosecution's burden to show beyond a reasonable doubt that there was an accident on a highway and if so, did the vehicle fail to remain at the accident.

Section 200 of the Highway Traffic Act

[25] Section 200(1) states:

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;

Strict Liability Offence

[26] The charge of fail to remain is a strict liability offence as classified by the seminal case of R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299. As a strict liability offence, it is not required that the prosecution prove the mens rea of the offence, what the prosecution is required to prove beyond a reasonable doubt is the "doing of the prohibited act." In this case, it is failing to remain at the scene of an accident.

[27] In the case of R. v. O'Dowd, 2015 ONCJ 716, His Worship Deschert in considering the law of failing to remain in an ex-parte trial, noted at paragraph 19 citing the decision of Dickson, J in the case of Sault Ste. Marie defined these 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 that 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 be properly called offences of strict liability…

[28] It is left open to the defendant to show that they exercised due diligence or took all reasonable care to avoid the act.

Definition of "Accident"

[29] Also in this decision, His Worship Deschert references how "accident" is defined by the case law, referring to the Supreme Court of Canada case R. v. Hill, [1973] S.C.J. No. 158 (S.C.C.) at paragraph 20, Dickson, J noted that:

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 color with the context in which it is found. It may mean simply any chance of mishap or unforeseen contingency or occurrence; it may mean something more. Counsel for Mrs. Hill maintained 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. 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 as 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 has 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).

Did an Accident Occur?

[30] Did an accident occur on May 16th? With respect to the civilian witness in this matter, Ms. Su, her evidence was clear, precise and not contradicted.

[31] I accept Ms. Su's evidence that she had been involved in an accident northbound on the Don Valley Parkway on May 16, 2018 at approximately 3:00 p.m. in the afternoon. She described the collision and described her vehicle being hit from the back on the highway by another vehicle.

[32] I accept that she stopped to examine her vehicle and to speak to the driver of the other vehicle. I accept that when she realized that the driver of the other motor vehicle was not going to pull over to exchange information that she followed the driver of the vehicle that rear ended her off the highway at Eglinton Avenue East to a side street on 45 Carbona Street in the City of Toronto, where she was able to take a photo of the license plate of the vehicle. I accept that she attempted to exchange insurance information but the other driver of the motor vehicle did not do so. I accept that the identity of the driver of the Hyundai Santa Fe bearing Ontario license plate number CEBE 486 on that day was a male.

[33] I also find that Ms. Su never lost sight of the vehicle from the time of the collision on the Don Valley Parkway to her interaction with the male driver again on Carbona Street. I accept that Ms. Su after the incident on the side street, attended at the Collision Reporting Center and reported the accident and provided a picture of the vehicle that struck her and the picture of the damage to the Tesla vehicle.

Vehicle Ownership and Section 207

[34] As the driver is an unidentified male, the prosecution in addition to proving that an accident had occurred had to prove that Claudia Valdes, was the registered owner of the vehicle bearing Ontario License Plate number CEBE 486 and that she can be convicted as the vehicle owner pursuant to s. 207 of the Highway Traffic Act.

[35] The Crown submits that the owner can be held liable and convicted for the offence. That under section 207(1) of the Highway Traffic Act, an owner of a vehicle may be charged and convicted unless the vehicle was in the possession of another person other than the owner without the owner's consent.

[36] Specifically, section 207(1) of the Highway Traffic Act states:

Subject to subsection (2), the owner of a vehicle may be charged with and convicted of an offence under this Act or the regulations or any municipal by-law regulating traffic for which the driver of the vehicle is subject to be charged unless, at the time of the offence, the vehicle was in the possession of some other person other than the owner without the owner's consent and on conviction the owner is liable to the penalty prescribed for the offence.

[37] Subsection (2) of the Act sets out those offences for which an owner may not be held liable for the actions of the driver. Specifically, the subsection reads:

The owner of a vehicle shall not be convicted as an owner for contravention of any of the following provisions, but where the owner is also the driver, he or she may be convicted as a driver:

• Section 78 or 78.1
• Subsection 106(2) or (4)
• Sections 129 to 143, ss 144(1) to (17), subsections 144(19) to (32), sections 145 to 168, section 172, subsections 175(1) to (10), subsections 175(13) to (18) or section 176, 182, or 199
• A regulation or by law made or passed under section 106 or under any section or subsection that is referred to in paragraph 1, 2, or 3
• Any by-law passed under any Act regulating or prohibiting turns on a highway

[38] The charge before the Court does not fall under one of the exceptions.

"In Charge of a Motor Vehicle"

[39] The prosecution provided the case of R. v. Blier, 2002 CarswellOnt 5837, where His Worship Quon had to conduct an analysis of whether a defendant was "in charge of motor vehicle" with respect to an offence under s. 148(1). In the analysis of "in charge of a motor vehicle", he referenced R. v. Richards, [1999] O.J. No. 1420 (Ont. CA), a Court of Appeal case that considered the phrase "in charge of a motor vehicle" as it related to section 33 of the Highway Traffic Act. His Worship Quon noted at paragraph 18 that "Justice Feldman held in the appeal of R. v. Richards, supra that the "term "in charge" must be wider than actual present physical custody and can include circumstances where the person has only recently and temporarily relinquished physical custody."

Purpose of the Highway Traffic Act

[40] The Highway Traffic Act provides that an owner can be held liable for the actions of the driver even though the owner was not the driver of the motor vehicle. This is in line with the purpose of the Highway Traffic Act "which is a collection of duties and obligations imposed on motor vehicle drivers and others, based on the operation of motor vehicles upon highways, for which owners of cars are made responsible" see Harris v. Yellow Cab Ltd., [1926] 2 D.L.R. 254 (C.A.).

Identification of the Owner

[41] Ms. Tammaorg, the Toronto Police Officer who investigated this matter, testified that she was able to determine the owner of the vehicle through searches of the Ministry of Transportation database. It was her evidence that she attempted to contact the owner of the motor vehicle by registered mail and then by phone after an unidentified female contacted her in response to the registered letter. The officer testified that the caller identified herself, as the daughter of the defendant. I also accept that the owner of the motor vehicle that was involved in the reported accident never contacted the collision reporting center to report the accident that occurred nor responded to the investigation being conducted by the officer. I further accept that a summons was issued to the defendant in this matter.

Defence of Due Diligence

[42] The only defence available where the offence is one of strict liability is due diligence. Has the defendant shown that she exercised reasonable care in this matter or by demonstrating an innocent mental state?

[43] As noted in the case of R. v. McMillan, 2013 ONCJ 25 at paragraph 16, His Worship Derchert in this case reviewing the law and applicable defence stated:

... 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.

Defence Arguments

[44] The defendant's agent submits that the prosecution had not proven its case beyond a reasonable doubt in several ways. First that the investigation was flawed and therefore, the prosecution cannot demonstrate that the defendant was aware that an accident occurred and secondly that the prosecution cannot prove that consent had been given to the unidentified driver therefore not making the owner liable for the accident.

Investigation Argument

[45] With respect to the first argument, there is no evidence before the Court to determine whether the investigation was flawed. There was no contradictory evidence put before this Court by any witnesses with respect to how collision investigations are to take place.

[46] This Court heard from the investigating officer the steps she had taken to contact the owner of the vehicle once the owner was identified through Ministry of Transportation records. This Court also heard that a registered letter had been sent to the defendant at the address that was listed on the Ministry of Transportation documents.

[47] The officer further testified that she received a telephone call from a female who identified herself as the daughter of the owner of the vehicle and advised the officer that there was a language barrier and that she could not speak to Ms. Valdes. This Court also heard that the officer made several attempts to contact the caller but was unsuccessful.

[48] In addition, this Court heard that no attempts had been made by Ms. Valdes to contact the officer prior or after the Summons had been issued.

Consent Argument

[49] Secondly, the defendant's agent also argued that the prosecution failed to prove that the owner gave consent to the unidentified driver of the Hyundai Santa Fe bearing Ontario License Plate number CEBE 486.

[50] The onus as is noted by the section shifts the burden to the owner to show that consent was not provided. Where an owner is being charged with an offence that is committed by the driver, section 207(1) of the Highway Traffic Act provides that the owner can rebut the presumption by demonstrating that consent had not been given. The onus shifted to defendant once the charge had been proven beyond a reasonable doubt that the vehicle had been involved in an accident. There was no evidence presented to this Court that rebutted the presumption that consent had not been given to the driver of the motor vehicle bearing Ontario License Plate number CEBE 486.

R. v. Huxtable Distinction

[51] In addition, the defendant's agent presented a summary conviction appeal case, R. v. Huxtable, 2012 ONCJ 611. It is his argument that this case supports his assertion that there has to be some evidence of consent by the owner otherwise, the Court would be speculating that consent has been given which would be incorrect.

[52] Specifically, he read in paragraphs 16 and 17 of the decision where Justice Sheila Ray held:

[16] The normal rules of evidence would also apply to the fact driven determination of whether or not a defendant permitted his motor vehicle to be driven without insurance, and a fact-finder would be expected to consider all relevant evidence before the Court. The evidence would sometimes be direct, sometimes circumstantial, and sometimes a combination of both. Facts in issue cannot always be proved by direct evidence alone. This is why the need arises for the prosecution to call circumstantial evidence, and for the courts to consider it.

[17] The circumstantial evidence in this case is that the driver was able to produce documents belonging to the owner at the scene, the driver and the owner had the same last name, and the vehicle was not reported stolen. The learned Justice of the Peace was satisfied that this was prima facie evidence that the owner provided permission to the driver to drive the vehicle and because there was no evidence to the contrary, he convicted the appellant. I disagree. The factual conclusion of the learned Justice was not supported by the evidence. There is more than one inference that could be drawn the three factors upon which the Justice relied, even when view cumulatively. His conclusion was speculative and unreasonable.

[53] In R. v. Huxtable, supra, the Court held that the learned Justice erred in accepting as best evidence, the viva voce evidence of the officer as proof of the identity of the ownership of the vehicle without any certified Ministry documentation to support the inference that the owner provided permission to the driver to drive the vehicle thereby contravening s. 2(1) of the Compulsory Automobile Insurance Act.

[54] This is not case in this matter. The identity of the owner of the vehicle was determined through the Ministry of Transportation documents. These Ministry documents were entered as Exhibits 6 and 7 in this hearing and under the hand and seal of the Ministry of Transportation for the truth of their contents and they are admissible under s. 210(7) of the Highway Traffic Act. The plate by date search and VIN by date are taken for the truth of their contents unless the information can be rebutted. Once the prosecution established that the defendant was the owner of the vehicle, under s. 207, the presumption shifted to the defendant to show on a balance of probabilities that the owner of the motor vehicle did not give their consent to the driver of the motor vehicle or that the motor vehicle had been stolen.

[55] Therefore, I would distinguish the case of R. v. Huxtable to the case that is before me as this Court had admissible evidence by which to conclude based on the certified documentation of the Ministry of Transportation that the owner of the vehicle was the defendant. Further, there was no evidence presented for the Court to consider that consent had not been given as required by section 207(1) of the Highway Traffic Act.

[56] The defendant has not shown on a balance of probabilities that she had exercised due diligence or that she had taken all reasonable care.

Conclusion

[57] I find that the prosecution has proven beyond a reasonable doubt that the Hyundai Santa Fe bearing Ontario license plate number CEBE 486 was involved in an accident northbound on the Don Valley Parkway in the City of Toronto at approximately 3:00 p.m. on May 16, 2018.

[58] I find that the prosecution has proven beyond a reasonable doubt that the vehicle bearing Ontario License plate number CEBE 486 did not remain at the scene of the accident and that the registered owner of the said motor vehicle that was involved in the accident was Claudia Valdes.

[59] I find that the defendant, Claudia Valdes being the owner of the Hyundai Santa Fe bearing Ontario License Plate Number CEBE 486 is guilty of the offence fail to remain contrary to section 200(1)(a).

Released: January 13, 2020

Signed: Justice of the Peace Cushnie