Court of Appeal for Ontario

Date: 20241002 Docket: COA-22-CR-0264

Fairburn A.C.J.O., Coroza J.A. and Baltman J. (ad hoc)

BETWEEN

His Majesty the King Respondent

and

Justin Lozon Appellant

Counsel: Nate Jackson, for the appellant Rebecca De Filippis, for the respondent

Heard and released orally: September 26, 2024

On appeal from the conviction entered by Justice John R. Sproat of the Superior Court of Justice on June 24, 2022.

Reasons for Decision

[1] This is an appeal from conviction for dangerous driving causing death. The deceased was struck while driving a motorcycle southbound on Highway 6 near the village of Ferndale at around 8:00 p.m. on October 3, 2017. It was dark out. The appellant was driving northbound on the same highway and turned left to cross the highway into a laneway. The trial judge found that, at the speeds being travelled and bearing in mind the geography and the good weather conditions, the appellant would have had approximately 11 seconds to see the deceased approaching in the southbound lane. The central issue at trial was whether the headlight on the deceased’s motorcycle was on. The appellant said it was not. The trial judge found otherwise.

[2] The appellant maintains that the verdict was unreasonable, meaning that, on the whole of the evidence, the verdict was not one that a properly instructed jury, acting judicially, could have rendered. In advancing this submission, the appellant suggests that the trial judge drew inferences from circumstantial evidence that were not available to him on this record. We disagree and do not intend to repeat the trial judge’s careful and well-thought-out analysis. In short, he pointed to eight reasons for why he found, beyond a reasonable doubt, that the motorcycle’s light was on. We see no error in his approach.

[3] The appellant also argues that the trial judge erred by failing to apply the principles from R. v. W.(D.), [1991] 1 S.C.R. 742, specifically by failing to engage in a credibility analysis in relation to the appellant’s evidence. The trial judge was under no obligation to specifically state the principles from W.D. The question is whether he applied them correctly. He did. The reasons are clear that the appellant’s evidence was rejected and did not raise a reasonable doubt. That rejection is clear on the face of the detailed reasons that explain why the trial judge accepted beyond a reasonable doubt that the light was on at the critical time.

[4] The appellant also brings a fresh evidence application which rests on the affidavit from a civilian taxi driver who maintains that he had interaction with the deceased during the evening of the accident. The taxi driver contends that the deceased’s motorcycle was experiencing mechanical difficulties, including the light. This proposed evidence fails to meet the cogency requirement under Palmer v. The Queen, [1980] 1 S.C.R. 759, at para. 775; see also Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92. In our view, it is riddled with inconsistencies and at times rises to the incredible. We say this for reasons that include the witness’s well-established track record for contacting the police over minor matters, including minor traffic complaints. Indeed, he has contacted the police over 300 times since 2000 and well over 100 times since October 2017. Yet, he did not contact the police in relation to this matter. Rather, he posted a note on Facebook after the fact of the accident had been made public. Moreover, the inconsistencies in his version of events are numerous. In our view, this evidence is simply not cogent enough to be expected to have affected the result.

[5] The fresh evidence application is dismissed. The conviction appeal is dismissed.

“Fairburn A.C.J.O.”

“S. Coroza J.A.”

“Baltman, J. (ad hoc)”