Court File and Parties

Court File No.: City of Greater Sudbury 4060-4663795A Date: 2012-03-21 Ontario Court of Justice

Between: City of Greater Sudbury

— And —

Connor McNeil

Before: Justice of the Peace L.M. Scully

Heard on: March 2, 2012

Reasons for Judgment released on: March 21, 2012

Charge: Careless Driving – s. 130 Highway Traffic Act

Counsel

L. Goulet ................................................................................................. counsel for the prosecution

J. Saftic ............................................................................. counsel for the defendant Connor McNeil

Judgment of Justice of the Peace L.M. Scully

Facts

[1] The defendant, Connor McNeil, is charged with Careless Driving contrary to section 130 of the Highway Traffic Act. He is charged pursuant to Part I of the Provincial Offences Act by way of a Certificate of Offence.

[2] Prior to any evidence being called counsel for the defendant agreed that the following facts were not in issue: date of offence being November 26, 2010; time of offence being approximately 8:10 p.m.; jurisdiction being the collision occurred at M.R. (municipal road) 55 (also known as HWY 17) and Power Street in the City of Greater Sudbury and identity of the defendant being Connor McNeil the driver of one of the motor vehicles that was involved in the collision.

[3] The Prosecution called three witnesses namely Mr. Osawamick; the driver of the other motor vehicle involved in the collision; an independent witness Mrs. Pappin who was driving behind Mr. Osawamick and managed to avoid the collision and the investigating officer Cst. J. Sivazlian of the Greater Sudbury Police Service.

[4] The defence called two witnesses namely the defendant and Ms. Nykilchyk who was a passenger in the defendant's motor vehicle and on the date of the collision was his girlfriend.

[5] Much of the evidence of the prosecution and defence witnesses was the same or very similar and I would describe the following facts as not in dispute. At the time of the collision there was a terrible snowstorm with blowing snow. The road conditions were very poor. The roads were in various spots either snow covered, slushy, icy and slippery. Mr. Osawamick and Mrs. Pappin were driving westbound on Municipal Road 55 (also known as HWY 17) towards Lively. The defendant was driving eastbound on Municipal Road 55 (hereinafter referred to as M.R. 55) towards Sudbury. All were facing green lights as they approached the intersection of M.R. 55 and Power St. It was dark out but there were street lights in the area of this intersection. The officer was uncertain as to where the speed zone changed but based on the evidence of Mrs. Pappin and the defendant who were both familiar with the area I'm satisfied the speed limit on the east side of the intersection for M.R. 55 was 80 km/hr (this is where Mr. Osawamick and Mrs. Pappin were driving) and the speed zone on the west side of the intersection for M.R. 55 was 90 km/hr (this is where the defendant was driving).

[6] To summarize the evidence the collision occurred as follows and I find that the following did occur. The defendant was driving down the hill and around a corner towards the intersection. He slid out of control on ice towards a car in the left turning lane; he over corrected to avoid that car and veered to the right; he corrected again and went left and spun into the intersection striking Mr. Osawamick's motor vehicle which was travelling straight through the intersection. Mrs. Pappin saw the collision unfolding before her and managed to stop her car in time to avoid being part of the collision. On the date of the collision the defendant had a G2 drivers licence and was inexperienced in driving in bad weather. His passenger screamed when his car started to slide towards the car in the left turning lane and he panicked and over corrected.

[7] All of the witnesses testified in an honest, straightforward and credible manner. There was some evidence of Mrs. Pappin which was contradicted by defence evidence. On these issues I accept the defence evidence. I find that Mrs. Pappin testified in an honest and credible manner as to what she saw and what her perceptions were but she of course would have had no knowledge as to what was happening in the defendant's motor vehicle or where the defendant was travelling that day. I am satisfied based on the defendant's evidence that some of her perceptions turned out to be inaccurate. One such perception was Mrs. Pappin thought the defendant was entering the left turning lane to turn left onto Power St. and that his motor vehicle was under control at that time. I am satisfied based on the evidence of the defence witnesses that they were travelling back to Sudbury and had every intention of travelling straight through the intersection. When the defendant's motor vehicle was going towards the left turning lane it was sliding and out of control. Mrs. Pappin testified that she felt the defendant was driving too fast for the road conditions when she first saw him coming around the corner and down the hill. Based on all of the evidence I am left with some doubt in that regard. Mrs. Pappin admitted in cross examination that it was possible the defendants' motor vehicle was already out of control when she first saw it. Mrs. Pappin did not testify during examination-in-chief as to a specific speed she thought the defendant was travelling. In cross-examination she said 90 to 100 km/hr when specifically asked but this appeared to be a guess. She admitted that in her statement to police she didn't mention a specific speed. She testified her own speed was 60 km/hr and she thought Mr. Osawamick was doing approximately the same as they were keeping a consistent distance between them. Mr. Osawamick testified that he was driving approximately 75 km/hr. The defendant and his passenger both testified that the defendant was driving approximately 70 to 80 km/hr. All witnesses testified that they were driving below the speed limit due to the poor weather and driving conditions.

Issues Before the Court

1.1: Has the Prosecution proven beyond a reasonable doubt that the defendant has committed the offence of Careless Driving contrary to section 130 of the Highway Traffic Act?

[8] Section 130 of the Highway Traffic Act reads as follows: "Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway..."

[9] The defence referred me to the case of R v. McIver, [1965] 2 O.R. 475 (C.A.). In this case the Ontario Court of Appeal upheld the decision of the trial court magistrate who found the defendant guilty of Careless Driving. The defendant did not testify and the court was satisfied that the trial magistrate convicted based on a circumstantial case and drew the appropriate conclusions from the evidence before him. The court indicated that Careless Driving is a strict liability offence. The appeal of this decision to the Supreme Court of Canada was dismissed by that court [[1966] S.C.J. No. 4 (S.C.C.)].

[10] In the case of R. v. Beauchamp, [1952] O.J. No. 495 (C.A.), an Ontario Court of Appeal decision, Justice Mackay states in paragraph 19: "It must also be borne in mind that the test, where an accident has occurred, is not whether, if the accused had used greater care or skill, the accident would not have happened. It is whether it is proved beyond reasonable doubt that this accused, in light of existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances. The use of the term "due care", which means care owing in the circumstances, makes it quite clear that, while the legal standard of care remains the same in the sense that it is what the average careful man would have done in like circumstances, the factual standard is a constantly shifting one, depending on road, visibility, weather conditions, traffic conditions that exist or may reasonably be expected, and any other conditions that ordinary prudent drivers would take into consideration. It is a question of fact, depending on the circumstances in each case."

[11] At paragraph 21, Justice Mackay states as follows: "There is a further important element that must be considered, namely, that the conduct must be of such a nature that it can be considered a breach of duty to the public and deserving of punishment. This further step must be taken even if it is found that the conduct of the accused falls below the standard set out in the preceding paragraphs."

[12] Applying the analysis set out in the above cases I find that the prosecution has not proven beyond a reasonable doubt that the defendant committed the offence of Careless Driving. Based on the evidence I am not prepared to make a finding that the defendant was driving too fast for the road conditions to meet the test of carelessness as set out in section 130. The best evidence I have of the specific speed of the defendant's vehicle is from the defendant himself (for the reasons stated earlier) and he stated that he was driving 70 to 80 km/hr which is 10 to 20 km/hr below the 90 km/hr speed limit. This is approximately the same as the speed Mr. Osawamick stated he was driving which was 75 km/hr. It is between 10 and 20 km/hr over the speed which Mrs. Pappin stated she was driving which was 60 km/hr. The defendant agreed during cross-examination that perhaps if he was driving 60 km/hr this accident might not have occurred. This may be true but that is not the test. I do not find that the speed was so excessive for the road conditions that it establishes careless driving. We can all second guess ourselves after the fact of an accident and find that we could have done things better but that does not mean that the behaviour necessarily rises to the level of careless driving. As the cases state the standard is not one of perfection. The icy, slushy, poor road conditions obviously played the main role in the accident and while the defendant's speed and over correcting played a role also I do not find that they meet the tests as set out in the case law. His inexperience in driving in bad weather and panic in over correcting once he starts to slid do not constitute behaviour which is deserving of punishment in a quasi-criminal court. The defendant took the action he thought necessary at the time (and he admitted he panicked) to avoid striking the vehicle in the left turning lane. He indeed managed to avoid this vehicle.

1.2: Are the offences of "Change Lane Not in Safety" and "Fail to Drive in Marked Lane" lesser and included offences of the offence of "Careless Driving"?

[13] Section 55 of the Provincial Offences Act states as follows: "Where the offence charged includes another offence, the defendant may be convicted of an offence so included that is proved, although the whole offence charged is not proved."

[14] The Prosecutor referred me to the head notes of two cases in the 2011 Annotated Provincial Offences Act by Murray D. Segal and Justice Libman to support her position that "Change Lane Not in Safety" contrary to section 142(1) of the Highway Traffic Act and "Fail to Drive in Marked Lane" contrary to section 154(1)(a) of the Highway Traffic Act are lesser and included offences of "Careless Driving." Her position was that if I find the defendant not guilty of Careless Driving I should find him guilty of either of these two charges based on the evidence and the fact that they are lesser and included offences.

[15] Before reviewing those cases referred to by the Prosecutor I will review other cases which deal with the issue. In R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371 (S.C.C.), the Supreme Court of Canada considered the issue of included offences pertaining to criminal matters. Although the wording of section 662 of the Criminal Code of Canada is not identical to section 55 of the Provincial Offences Act I am satisfied that they are close enough and based on the case law that the test to be applied in interpreting these sections is the same. At paragraph 27 Justice Binnie speaking for the majority accepted the findings of the Ontario Court of Appeal in a previous decision of R. v. Simpson (No. 2), 58 C.C.C. (2d) 122 (C.A.) when it stated: "Martin J.A. of the Ontario Court of Appeal also insisted on making clear to an accused the precise extent of his or her legal jeopardy: 'The offence charged as described either in the enactment creating the offence, or as charged in the count, must contain the essential elements of the offence said to be included....the offence charged, as described either in the enactment creating the offence or as charged in the count, must be sufficient to inform the accused of the included offences which he must meet.' Justice Binnie also stated at paragraph 25 that the test is a strict one and the lesser charge must "necessarily" be included and if it is not "necessarily included" then it must be excluded.

[16] A case that is quoted in many other cases as being a short but clear interpretation of lesser and included offences is R v. Foote, [1974] N.B.J. No. 32 (N.B.C.A.). Justice Limerick speaking on behalf of the New Brunswick Supreme Court Appeal Division stated at paragraph 6: "An included offence is not merely a 'lesser offence' as it is sometimes referred to but is an offence that the accused necessarily commits in the commission of the offence charged."

[17] Justice of the Peace Cuthbertson in the case of R. v. Richards, 2009 ONCJ 651 applying the analysis of the law which he sets out in his prior case of R. v. Reiber, 2007 ONCJ 343, finds that the charge of "Failing to stop for a red light" is not a lesser and included offence of the charge of "Careless Driving" as the actual wording of section 130 (Careless Driving) does not contain the essential elements of section 144(18) (Failing to stop for red light). He also finds that since the charging certificate states only "Careless Driving" the certificate does not inform the defendant that she may have to defend herself against a charge of "Failing to stop for a red light."

[18] Applying section 55 of the Provincial Offences Act and the case law above which illustrates this section to this case, I find that the offences of "Change Lane Not in Safety", and "Fail to Drive in Marked Lane", are not lesser and included offences of "Careless Driving." "Careless Driving" as set out in section 130 is a very broad and general charge. It can be committed in countless ways. One can imagine many scenarios where a person never leaves their lane of travel and yet still commits the offence of "Careless Driving." Must a person commit an offence of "Change Lane Not in Safety" during the course of committing an offence of "Careless Driving"? Clearly the answer is no and therefore the charge does not meet the test for a lesser and included offence. The same must be said of "Fail to Drive in Marked Lane." I cannot find the defendant guilty of either of those two charges simply because the evidence may better support those charges rather than a charge of "Careless Driving."

[19] Applying the second part of the test as set out in R v. G.R., to the case at bar...would the defendant be aware that he was facing the possibility of defending himself against the charges of "Change Lane Not in Safety" and "Fail to Drive in Marked Lane"? The answer is no as the charging document is a Certificate of Offence which does (and must) state the approved short form wording for the offence, which in this case is simply "Careless Driving". As this offence can be committed in numerous ways the defendant would not be aware of which other possible charges he may be facing. I would go so far as to say that unless particulars are provided which would spell out a manner of committing "Careless Driving" that includes all of the essential elements of another offence then there can be no lesser and included offences for "Careless Driving."

[20] With all due respect to the cases referred to me by the prosecutor which take a different view, I find that they conduct a factual analysis as to whether the evidence discloses that the defendant committed another offence prior to or rather than a legal analysis. In the case of R v. Smith, [2002] O.J. No. 3270, Justice Halikowski, sitting as a Provincial Offences Appeal Court Judge upheld the decision of the Justice of the Peace who found the defendant guilty of "Follow too closely" rather than "Careless Driving". In paragraph 8 he states; "...all the elements of the offence of following too closely clearly being part in the totality of the offence of careless driving in this particular set of circumstances." The test as set out in R v. G.R. and R. v. Foote does not look at the evidence of the particular case to determine whether a charge is lesser and included. One must look to the wording and essential elements of the offence creating provisions first. Once that analysis is done and if a lesser and included offence is found then the Justice would review the evidence to determine if that lesser and included offence had been proven based on the evidence of the particular case before them. The evidence may well disclose all sorts of offences which are not charged but that does not make them "lesser and included" offences.

[21] The prosecutor also referred me to the case of R v. Grezelak, 2010 Carswell Ont 5483 (C.J.) which is summarized briefly on page 340 of the 2011 Annotated Provincial Offences Act. The prosecutor was unable to provide me with a copy of the whole case and I was unable to locate a copy of the case myself. Based on the summary that I have read I would have the same comments about this case as I had about the case of R v. Smith in paragraph 20 above.

Decision

[22] Therefore for the reasons indicated I find the defendant, Connor McNeil, not guilty of the offence of "Careless Driving" and the charge is dismissed.

[23] Given that I have found that "Change Lane Not in Safety' and "Fail to Drive in Marked Lane" are not lesser and included offences of "Careless Driving" I will make no findings on the issue of whether the prosecution has proven either of those charges.

Released: March 21, 2012

Signed: "Justice of the Peace L.M. Scully"