Court File and Parties

Court File No.: Halton 1615712A-00 Date: 2012-08-13 Ontario Court of Justice

In the Matter of: An appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between: Her Majesty the Queen Respondent

— and —

Rana Singh Appellant

Before: Justice R. Zisman

Heard on: August 3, 2012

Reasons for Judgment released on: August 13, 2012

Counsel:

• David Milner, for the prosecution
• Peter Eberhard, for the defendant Rana Singh

On appeal from: A conviction by Justice of the Peace J. Woloschuk on November 25, 2010 and sentence on November 25, 2010.

ZISMAN J.:

[1] This is an appeal by the appellant, Rana Singh, from a conviction of a careless driving charge contrary to section 130 of the Highway Traffic Act. The trial took place before His Worship Justice of the Peace J. Woloschuk on November 25, 2010. The sole ground of appeal raised is that the Justice of the Peace did not properly apply the test in R. v. W. (D.) ("W.(D.)") (1991) 63 C.C.C.(3d) 397 (S.C.C.).

[2] At trial the prosecution called as its only witness, Karl Kaseloo, a provincial offences officer and a Ministry of Transportation enforcement officer. The defence called as its only witness the defendant.

Evidence at Trial

[3] It was admitted that on the morning of June 18, 2010, the defendant was driving a combination tractor trailer, which was not loaded, on the 407 in the Town of Oakville exiting onto the northbound Trafalgar Road. He was travelling slowly. Officer Kaseloo was travelling in a marked vehicle in uniform and decided to conduct a routine traffic stop. Traffic was light.

[4] The issues not agreed to were the exact locations of the stop on Trafalgar Road and when and where the defendant stopped.

[5] Officer Kaseloo testified that he was travelling directly behind the defendant's truck when it made a right turn onto Trafalgar Road, as he could not pull in front of the truck he pulled into the right lane and was taking up part of the left lane so the defendant could see him in his rear view mirror. He activated his roof lights and siren. He saw the defendant's face in the rear view mirror and so he assumed that the defendant saw his vehicle as he put on his right turn signal and expected that the defendant would then pull onto the shoulder so he could inspect the vehicle. However, instead the defendant's truck came to a dead stop while fully in the live lane of traffic northbound on Trafalgar Road. The officer had to slam on his brakes and barely missed the back of the truck by less than six inches and the car behind him almost hit him. The officer's truck was still partially in the left lane of traffic and traffic travelling northbound had to veer into the southbound lane of traffic to clear his vehicle. The officer exited his vehicle and by hand signals and gestures had to get the defendant to move his truck onto the shoulder where he had wanted him to stop in the first place.

[6] Officer Kaseloo took photographs of the location indicating some light traffic and the width of the shoulder and the final location where the defendant stopped his truck.

[7] Mr. Singh did not deny in his testimony that he saw the officer in his rear view mirror or that he stopped his vehicle. He was asked in direct examination where and why he stopped. When he failed to answer the question clearly, the presiding justice pointed this out and then when asked again, the defendant confirmed that he stopped originally because the officer was behind him and gave him his lights and then stopped again. However, it was still unclear where he actually stopped. In cross–examination, the defendant denied that he stopped in the live lane of traffic and maintained that he drove onto the shoulder. He was then asked to clarify his evidence namely, that he stopped and then he drove a little bit further and parked on the shoulder. He replied that he always "parked" his vehicle on the shoulder. The presiding justice again pointed out that his evidence was unclear as the defendant had confirmed that he stopped two times but did not explain where he stopped and invited counsel to clarify the issue in re-examination. The defendant then attempted to explain the width of the shoulder when he stopped the first and then the second time. He testified that the first time he stopped, his truck was still partially in the lane of traffic although it was again not clear whether he attempted to pull over or not onto the shoulder or whether he was testifying about the width or length of his truck when he was explaining the location of his truck.

Reasons for Trial Judgment

[8] It is clear from the reasons for judgement that the justice of the peace understood and correctly articulated the law and accepted the officer's evidence which he found to be credible, trustworthy and direct. He stated that he found the defendant's evidence to be confusing.

[9] Counsel for the defendant points to the following passage in the reasons as indicative of the error by the justice of the peace in his application of the test in W.(D.):

I did find that Mr. Singh to his evidence to be somewhat confusing at different stages of his testimony. That doesn't mean that he's not credible. That doesn't mean that he is not credible. What it means is that there's some confusion and he had, even with the assistance of an interpreter, I don't think that it's a language issue but it's the way he was expressing himself.

[10] However, the justice of the peace then continues to explain why he accepts the officer's evidence that is, because it was clear and direct. He accepted that the officer saw the defendant turn onto Trafalgar Road, that he positioned himself to the left of the defendant's truck so he could see him, that he noticed the defendant's face in his mirror, that the defendant put on his right signal and it appeared that the defendant was going to be turning to slow down and stop on the shoulder. The justice of the peace accepted the testimony of the officer and relied on the photo entered as an exhibit that there was a shoulder and that there was sufficient room for the defendant to safely pull over but that for whatever reason, that was not clearly articulated by the defendant he did not pull over and stopped on the highway. He found that by doing so, he did not act as a prudent driver as there were other people using the highway and by abruptly stopping he caused the officer's vehicle to stop abruptly and the vehicle following him to also have to brake and stop abruptly.

Analysis

[11] It has been repeatedly held that it is not necessary for the recitation of the three prong test in W.(D.) to be articulated in a judgement as long as the substance of the test is followed. (See for example R. v. S.(W.D.) (1994) 93 C.C.C. (3d) 1 (S.C.C.) at para. 24; R. v. Dinardo (2008) 231 C.C.C.(3d) 177 (S.C.C.) at para. 23.)

[12] It is clear from the reasons of the presiding justice of the peace that he accepted the Crown's evidence that proved the defendant's guilt beyond a reasonable doubt. He rejected the defendant's evidence which he found confusing and non-responsive to the pivotal issues and that the defendant's evidence did not raise reasonable doubt. In fact, it appears that at least in one portion of the defendant's evidence he admitted that when he first stopped a portion of his truck was in the live lane of traffic.

[13] The Ontario Court of Appeal recently, in the case of R. v S.(T.) 2012 ONCA 289, [2012] O.J. No. 1962, summarized the crucial points that should be considered in a review of the adequacy of a trial judge's reasons at paragraphs 76 to 80 as follows:

76 First, on a review of reasons for sufficiency, we start from a deferential stance towards the trial judge's perceptions of the facts. He was there. We were not. He was in the best position to determine issues of fact, including, but not limited to, credibility. In the absence of evidence to the contrary, we must also presume that the trial judge knows the governing legal principles: R.E.M., at para. 54.

77 Second, when a complaint is made about the adequacy of a trial judge's reasons, we must determine whether those reasons, considered in the context of the evidence adduced at trial, the live issues that emerged at trial, and the submissions of counsel, deprived the appellant of meaningful appellate review: R.E.M., at para. 57; D. (J.J.R), at para. 35; and R. v. Gagon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 14.

78 Third, any inquiry into the sufficiency of reasons must be directed at whether the reasons respond to the live issues in the case. The truthfulness of the principals was at the forefront of this case. What we must ask and determine is whether the trial judge's reasons seized the substance of the critical issues at trial: Dinardo, at para. 31; and R.E.M., at para. 55.

79 Fourth, as a matter of law, reasoned acceptance of a complainant's evidence is a basis upon which a trial judge can reject the evidence of an accused and find guilt proven beyond a reasonable doubt. A reasoned and considered acceptance of the complainant's evidence is as much an explanation for rejecting the contrary evidence of an accused as are problems inherent in an accused's own testimony: D. (J.J.R.), at para. 54.

80 Finally, where the alleged inadequacy or insufficiency has to do with findings on credibility, we must be mindful that such findings are notoriously difficult to articulate: Dinardo, at para. 23; and R.E.M., at paras. 50-51.

[14] In applying these factors to this case, I find that the justice of the peace accurately stated the law with respect to careless driving and was aware of the live issues in the case. It is clear from his reasons that he accepted the officer's version of events as corroborated by the photographs as to where the defendant initially stopped his truck and why stopping in a live lane of traffic created a potential danger to other users of the road. The justice of the peace rejected the defendant's various explanations as to where he stopped his truck as he found them confusing and unclear. Having reviewed the evidence, I find there was evidence, if accepted by the justice of the peace, to support his findings. The justice of the peace is presumed to know the law with respect to the issues of credibility and burden of proof as set out in the case of R. v. W. (D.) and although not articulated in the context of the oral reasons considered in their entirety, I find there is no error in the reasons for conviction and therefore no reason to disturb the finding of guilt.

Released: August 13, 2012

Signed: Justice R. Zisman