Court File and Parties

Court File No.: Kitchener 3055105A Date: 2012-02-10 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 —

Nick Duma Appellant

Before: Justice G. F. Hearn

Heard on: December 22, 2011

Reasons for Judgment released on: February 10, 2012

Counsel:

• David Dyer, for the respondent
• The appellant Nick Duma on his own behalf

On appeal from: A conviction by Justice of the Peace W. S. Ross on March 2, 2011

HEARN J.:

BACKGROUND

[1] The appellant was charged with failure to properly wear a seatbelt contrary to s. 106(2) of the Highway Traffic Act on May 26, 2010. Section 106(2) of the Highway Traffic Act reads as follows:

"(2) Every person who drives on a highway a motor vehicle in which a seat belt assembly is provided for the driver shall wear the complete seat belt assembly as required by subsection (5)."

[2] The trial took place on March 2, 2011. The appellant was self-represented at the trial and on the record as transcribed there appears to have been little to no instruction provided by the court to the appellant as to the procedure or how the trial process might unfold.

[3] The prosecution called one witness and the appellant gave evidence on his own behalf. After hearing evidence the justice of the peace found the appellant guilty, registered a conviction and fined the appellant $200.00.

[4] This is an appeal pursuant to s. 135 of the Provincial Offences Act from that conviction. The Notice of Appeal prepared and filed by the appellant who appeared on the appeal on his own behalf sets out the grounds for the appeal as follows:

"The JP HW Ross did not take in consideration the evidence presented to the court that the police officer could not have had a clear frontal view of my chest to be able to see the seatbelt. See his notes."

EVIDENCE AT TRIAL

Evidence for the Prosecution

[5] Constable Brian Reitzel of the Waterloo Regional Police Service was the sole witness called on behalf of the prosecution. He was on duty on May 26, 2010 on his way back to Division #1 on Frederick Street in a fully marked cruiser when he came to a stop at a traffic light on Frederick Street where it intersects with Duke Street. The officer noted that he was one to two cars back from the intersection when he then observed a large dump truck proceeding on Duke Street to turn left onto Frederick Street into the lane immediately beside the cruiser.

[6] The officer observed the driver, Mr. Duma, as the vehicle passed and noticed that Mr. Duma was speaking on a cell phone, using his left hand with the phone up to his left ear.

[7] As the truck went by the officer made some observations to see what the "driver looked like on his way by" and noticed that he was wearing a white short-sleeved shirt. He did not notice a shoulder restraint across the short-sleeved shirt as the truck passed.

[8] As a result of his observations, the officer did a U-turn and followed the dump truck and through the sideview mirrors of this large commercial vehicle apparently could still see Mr. Duma on the cell phone. The officer activated his lights, pulled the truck over and stepped up to the cab to speak with Mr. Duma.

[9] The officer advised Mr. Duma that he had stopped the vehicle both for the alleged seatbelt infraction and for talking on the cell phone. An explanation was provided by Mr. Duma for "his actions". That explanation was not provided to the court at trial nor was there any indication from the officer which "actions" Mr. Duma was providing an explanation for.

[10] The officer estimated that he was about 20 metres from the intersection when the truck turned left onto Frederick, coming within two metres of the cruiser as it passed.

[11] When stopped, the officer indicated that the shoulder restraint was in place, was black and he had not seen any shoulder restraint previously. The officer also confirmed that although he did not lose sight of the dump truck, he did lose sight of the driver from time to time.

[12] In cross-examination by Mr. Duma, Mr. Duma put it to the officer that perhaps he did not see the restraint because Mr. Duma had his left hand up talking on the phone. The officer responded that he had seen the truck from some distance back at the intersection but after the truck had completed the left turn had noted the truck and Mr. Duma for a "brief time" which he estimated to be 20 to 30 seconds. The 20 to 30 seconds was the entire time that Mr. Duma's truck had been under observation by the officer from the time it entered the intersection, made the left turn and then came towards the cruiser.

[13] Of note, during the course of the cross-examination Mr. Duma produced a series of photos which were taken in black and white and show a dump truck that the officer admitted looked like Mr. Duma's dump truck. Mr. Duma questioned the officer on his opportunity to observe what he said he could observe and it appears the photos were an attempt to recreate Mr. Duma's position with the cell phone. The photos were marked as various exhibits at trial.

[14] In re-examination with the use of some rather leading questions from the Crown, the Crown attempted to have the officer agree that the photos appeared to be staged somewhat with respect to the positioning of the driver. I say leading as the Crown was asking such questions and then asking the officer if he agreed with the questions put. It was not simply a matter of the Crown directing the officer's responses to a specific area. It was whether or not the officer agreed with the statements made by the Crown.

Evidence for the Defence

[15] Mr. Duma gave evidence on his own behalf. He spoke of the pictures that he had taken and testified the officer would not have been able to have a good look at him while he was operating the vehicle. He stated the officer told him when he stopped him that he had been stopped for using the phone and then had gone on to the seatbelt.

[16] Mr. Duma indicated that in addition he had his hands "full" and had no time to put his seatbelt on after the officer had seen him as he was driving the truck, changing the gears and using the phone, an offence for which he was never charged. Mr. Duma was candid and stated that when the officer came, the officer checked his seatbelt and he "did have the seatbelt on".

[17] In cross-examination the issue of whether or not Mr. Duma had his seatbelt on was left untouched by the prosecutor. The prosecutor basically took issue with the following:

(1) Mr. Duma had been on a cell phone and that was "against the law".

(2) The Crown asked Mr. Duma why "we should believe that you were even wearing a seatbelt?" and Mr. Duma responded because he knows that "a seatbelt it's important".

(3) The prosecution's primary concern appears to have been the photos which were taken some time after the incident on a day which was supposedly not clear and sunny as the day of the alleged offence and photos that were reproduced in black and white as opposed to colour.

[18] That effectively was the extent of the cross-examination.

REASONS FOR JUDGMENT AT TRIAL

[19] The justice of the peace summarized briefly the evidence of the officer and emphasized the colour of the t-shirt Mr. Duma had on and the fact that the officer did not see the shoulder restraint. The justice of the peace ultimately indicated he agreed with the Crown and "at no time did the defendant give evidence about his wearing the seatbelt only to inform the court that he doesn't believe the officer could see because with these pictures that he'd submitted inside the cab of this vehicle."

[20] The court went on to state that the Crown had made out its case since he considered the pictures to be "selective interpretation" as to what the officer had seen or not seen or had the ability to see and that Mr. Duma was "trying to convince the court that the officer couldn't see this". His Worship concluded that it was "selective interpretation" because none of the pictures showed the officer's cruiser and found for reasons that are quite inexplicable that Mr. Duma wanted the court to "believe it" but "it does not accurately depict the events that took place."

[21] The justice of the peace found that one factor which stood out "in this whole matter" was that it was a dangerous situation to be on a communication device and turning a corner. He did not believe that Mr. Duma was wearing a seatbelt when first observed by the officer. He found it quite possible that Mr. Duma could do all the things that he said he was doing as well as put the seatbelt on.

ANALYSIS OF LAW AND FACT

(a) The Law

[22] Section 136 of the Provincial Offences Act deals with the authority of the appeal court and the scope of that authority when hearing an appeal. Section 136 states as follows:

"136.(1) Upon an appeal, the court shall give the parties an opportunity to be heard for the purpose of determining the issues and may, where the circumstances warrant it, make such inquiries as are necessary to ensure that the issues are fully and effectively defined.

Review

(2) An appeal shall be conducted by means of a review.

Evidence

(3) In determining a review, the court may,

(a) hear or rehear the recorded evidence or any part thereof and may require any party to provide a transcript of the evidence, or any part thereof, or to produce any further exhibit;

(b) receive the evidence of any witness whether or not the witness gave evidence at the trial;

(c) require the justice presiding at the trial to report in writing on any matter specified in the request; or

(d) receive and act upon statements of agreed facts or admissions."

[23] Section 138 states:

"138. (1) Upon an appeal, the court may affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial."

[24] The case law sets out the broad scope of the jurisdiction of the appeal court when dealing with appeals under Parts I and II of the Act and differentiates the manner of dealing with those appeals from appeals under Part III. In dealing with appeals under s. 135 the court is not limited as to when it may intervene. Specifically, the court is not required to find that the trial judgment was unreasonable, unsupportable or erroneous in law or indeed that the sentence imposed at trial was unfit, unreasonable or erroneous in principle. All of which are relevant to the determination of Part III appeals but not appeals under Parts I and II.

[25] The language that defines the conduct of the appeal under s. 136(1) speaks in terms of a broad-based review with generous allowances to all parties to ensure that the issues are fully and effectively defined and fairly and completely considered. See Regina v. Martin, [2008] O.J. No. 1803.

[26] Notwithstanding this broad scope, it is still important to keep in mind that the jurisdiction of this court is one of review and findings based on credibility should be paid deference to the justice of the peace who actually heard the witnesses give the evidence unless those findings are unreasonable.

[27] I adopt the reasoning in Regina v. Gill, [2003] O.J. No. 4761 where, in considering the authority under the relevant provisions of the Provincial Offences Act dealing with appeals such as that before the court, the court noted as follows:

"It is not necessary to decide the limits of my authority under these appeal provisions. It suffices to conclude for present purposes that I am quite satisfied that the issue of sufficiency of the evidence to support the conviction is well within my broad jurisdiction. Further, I am of the view that I must review the record before me and reach my own conclusion on the issue. It is not a matter of deferring to the trial justice's conclusion and intervening only if I conclude that her decision was unreasonable. To approach it in that way would be to effectively transpose the Part III provisions to Part I and II appeals when the legislature took pains to distinguish between the two. However, where findings of credibility are in issue I should accept the trial justice's findings unless they are unreasonable."

(b) The Facts and Analysis

[28] Mr. Duma acted on his own behalf on the appeal of this matter. Although the court did not have Mr. Duma take the stand and provide further evidence to specifically deal with the issue of whether or not he was wearing the seatbelt, his submissions and indeed the evidence at trial, in my view, clearly indicate that he was in fact attempting in his own way to convey to the trial justice that he was in fact wearing a seatbelt at all relevant times. The justice of the peace seems to have picked up on the Crown's position that Mr. Duma effectively challenged the evidence of the officer yet did not specifically say he in fact was wearing a seatbelt. The justice of the peace then found that he had had an opportunity to put it on prior to being stopped by the police.

[29] I do not read the transcript from the trial to indicate only that. Indeed, it is clear from the transcript that the logical inference from the evidence of Mr. Duma was that he was in fact wearing the seatbelt at all times. He not only was challenging the officer's ability to see what he says he did not see but he explains he was undertaking a number of other manoeuvres at the same time. He had a cell phone in his left hand with his hand up which would have certainly obscured the view of anyone looking directly into the window let alone looking in from some distance away and only then for 20 to 30 seconds which period the officer stated was not fully dedicated to looking at the driver.

[30] The Crown submitted and the justice of the peace apparently accepted that Mr. Duma had never said he was in fact wearing a seatbelt. However, his evidence in its totality clearly indicates that that is exactly what he was saying, although perhaps not in so many words. He stated it would have been impossible for him to put a seatbelt on in that short period of time. The photos, notwithstanding that they were in black and white certainly show the size of Mr. Duma's vehicle and his location. Those would make observations over a short period of time somewhat difficult if one was trying to observe whether or not a seatbelt was on, particularly when one might be distracted by the traffic itself and the fact that Mr. Duma was on a cell phone.

[31] Mr. Duma was never asked at all during cross-examination anything relevant to the wearing of a seatbelt. He was questioned by the Crown on the photographs, the colour or lack of colour of those photographs and the time of year they were taken but he was never challenged directly about the wearing of a seatbelt. He was cross-examined on the use of the cell phone and how that was "against the law" but he was never questioned, nor was his evidence challenged, with regard to what is a logical inference from his evidence, i.e. that he was stating at all times he had the seatbelt in place.

[32] Indeed even the Crown, when touching briefly on the issue of the seatbelt, assumed that the evidence of Mr. Duma was that he was in fact wearing a seatbelt. The Crown indicated such in the following exchange:

"Question: Through the downtown area of the city, why should we believe sir that you were even wearing a seatbelt?

Answer: The reason is sir because I know the seat belt it's important."

[33] That very question by the prosecution implies the prosecution understood Mr. Duma's evidence to be that he had the seatbelt on at all times not only when stopped by the police. His evidence, although perhaps not as clearly stated as it might have been, obviously conveyed to the Crown and should reasonably have conveyed to the court that his position was that the seatbelt was on at all times.

[34] The issue of what Mr. Duma may or may not have said at trial is one issue. Another issue is the way in which the court ultimately dealt with the evidence of both Mr. Duma and the officer. The reasons are brief and really do not assist Mr. Duma in understanding why the justice of the peace disregarded his evidence other than to say that the justice of the peace was of the view there was sufficient time to put the seatbelt on and that he had not said he was actually wearing a seatbelt.

[35] The justice of the peace seems to have approached the matter on the basis of a credibility contest. Even the Crown fed into that issue somewhat when the Crown asked Mr. Duma "why should we believe him". However, there was no onus on Mr. Duma to establish his innocence. The Crown was to prove the essential elements beyond a reasonable doubt.

[36] The justice of the peace seems to have misplaced that onus somewhat, perhaps persuaded by the questioning of the Crown which seems to have implied there was some onus on Mr. Duma to convince the court that he was wearing a seatbelt. Indeed, the justice of the peace himself referred to the fact that Mr. Duma was "trying to convince the court that the officer couldn't see this".

[37] Mr. Duma did not have to convince the court of anything. If the justice of the peace did not accept his evidence, then the justice of the peace should have considered whether or not even though he did not accept the evidence he was left in reasonable doubt by that evidence. The justice of the peace in fact seems to have skipped an essential element of principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742, and gone directly to a conclusion after not apparently accepting Mr. Duma's evidence.

[38] Mr. Duma appears from the record to have been candid and forthright. He acknowledged the use of the cell phone. He produced photos that would at the very least indicate the officer's view may have been somewhat obscured by that use and the size and proximity of the truck when the observations were made. The observations were, as I say, over a very limited time frame and the officer did not have Mr. Duma in his sight at all times. The Crown argued that that gave Mr. Duma an opportunity to put the seatbelt on but the officer's evidence also indicated that after he did the u-turn he could see Mr. Duma in the sideview mirrors of the truck and noted that he was still on the phone. No reference was made to the seatbelt at that point or attempts to put one on.

[39] The justice of the peace, in my view, was somewhat sidetracked by the black and white nature of the photos and the Crown's position in that regard during cross-examination. The fact that the photos were not coloured may have been worthy of some reference with respect to the presence of the seatbelt but one must remember that the officer's evidence was that it was the lack of a black seatbelt on a white t-shirt that drew his attention in the first place to Mr. Duma. Also, as noted, the justice of the peace concluded that Mr. Duma was unable to "convince" the court that he was wearing a seatbelt and that he had not specifically stated he was wearing one. That is not a fact that I would be prepared to find on a fair reading of the evidence that I have before me.

[40] The cross-examination of Mr. Duma did nothing to undermine his evidence and the finding of a lack of credibility on the part of Mr. Duma appears to be unreasonable on the evidence.

[41] Given the wording of the legislation and the generous approach allowed on a review of the reasons, I am of the view that there was insufficient evidence to find Mr. Duma guilty of the offence. Although Mr. Duma did not perhaps specifically state he was wearing a seatbelt, a reasonable and logical inference from his evidence which was unchallenged in cross-examination is that he in fact was wearing a seatbelt at all times. At the very least his evidence raises a reasonable doubt as to whether or not the Crown had established he was not.

[42] The appeal will be allowed and the conviction set aside. Given the nature of the charge and the finding of this court with respect to the evidence expected to be repeated if a re-trial was ordered, it is not in the public interest to order a further trial and an acquittal will be entered.

Released: February 10, 2012

Signed: "Justice G. F. Hearn"