Court File and Parties

Court File No.: Halton - Burlington 1260-3761505A

Date: 2013-03-01

Ontario Court of Justice

Between:

Her Majesty The Queen

— AND —

Tsui-Ping Tali Wong

Before: Justice of the Peace Kenneth W. Dechert

Heard on: March 25th, 2011, August 23rd, 2011, January 3rd, 2012, January 9th, 2012, January 27th, 2012, May 4th, 2012, September 17th, 2012 and November 21st, 2012

Reasons for Judgment released on: March 1st, 2013

Provincial Offences Court – Burlington, Ontario and Milton, Ontario

Counsel

I. Lagden — for the prosecution – the City of Burlington

K. McLean — representative for the defendant Tsui-Ping Tali Wong

Statutes, Regulations and Rules Cited

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended to May 17th, 2010, subsection 1(1) and section 130.

Cases Cited

• Regina v. Ali, [2003] O.J. No. 2045 (Ont. C.J.)
• Regina v. Beauchamp (1953), 106 C.C.C. 6; [1953] O.R. 422 (Ont. C.A.)
• Regina v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (S.C.C.)
• Regina v. Erredia, 2006 ONCJ 303 (Ont. C.J.)
• Regina v. Globocki, [1991] O.J. No. 214; (1991), 26 M.V.R. (2d) 179 (Ont. Prov. Ct.)
• Regina v. Kinch, [2004] O.J. No. 486 (Ont. Sup. Ct.)
• Regina v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.)
• Regina v. McIver, [1965] 2 O.R. 475; (1965), 45 C.R. 401 (Ont. C.A.)
• Regina v. Namink, [1979] O.J. No. 317 (Ont. Co. Ct.)
• Regina v. Pyszko, [1998] O.J. No. 1218 (Ont. C.J.)
• Regina v. Sault Ste. Marie (City) (1978), 40 C.C.C. (3d) 353 (S.C.C.)
• Regina v. Skorput, [1992] O.J. No. 832; (1992), 72 C.C.C. (3d) 294 (Ont. Prov. Ct.)
• Regina v. Waithe, [1989] 1 S.C.R. 1436; 13 M.V.R. (2d) 236 (S.C.C.)
• Regina v. W.(D.), [1991] 1 S.C.R. 742 (S.C.C.)
• Regina v. Wholesale Travel Group Inc. (1991), 8 C.R. (3d) 145 (S.C.C.)
• Regina v. Wilson (1971), 1 C.C.C. (2d) 466 (Ont. C.A.)
• Regina v. Wong, 2012 ONCJ 589, [2012] O.J. No. 4480 (Ont. C.J.)

K.W. DECHERT, J.P. (orally):

The Charge

[1] Under Certificate of Offence no. 1260-3761505A, the defendant Tsui-Ping Tali Wong stands charged that she on the 17th day of May, 2010 at 7:45 a.m., at Q.E.W. [Queen Elizabeth Way] eastbound in the Town of Oakville, did commit the offence of careless driving, contrary to the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended to May 17th, 2010, hereinafter referred to as "the H.T.A."

[2] On the 25th day of March, 2011, the defendant entered a plea of not guilty to the subject charge and a trial of the matter then ensued before me. The trial was not completed at that time. It was subsequently reconvened on August 23rd, 2011, January 3rd, 2012 and January 9th, 2012, when the defendant commenced an Application under subsections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, ("the Charter"), seeking a judicial stay of the subject proceedings.

[3] The said Charter Application was argued on January 9th, 2012, January 27th, 2012 and on May 4th, 2012. The Application was then adjourned until September 17th, 2012, when I delivered my judgment denying the remedy of a stay of proceedings sought in the Application (Regina v. Wong, 2012 ONCJ 589, [2012] O.J. No. 4480 (Ont. C.J.)). The proceedings were then adjourned until November 21st, 2012, for trial continuation.

[4] The trial of the subject charge was completed on November 21st, 2012 and the proceedings were then adjourned to March 1st, 2013, for my judgment.

[5] The prosecution was represented by Mr. I. Lagden. The defendant was represented by her legal representative, Mr. K. McLean.

THE LAW

(i) Relevant Statutory Provisions

[6] The defendant is charged with the offence of careless driving, contrary to section 130 of the H.T.A. That section reads, in part, 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…

[7] The terms "highway" and "vehicle" are defined in subsection 1(1) of the H.T.A. as follows:

'highway' includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;

'vehicle' includes a motor vehicle, trailer, traction engine, farm tractor, road-building machine, bicycle and any vehicle drawn, propelled or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle or street car.

(ii) Relevant Common Law

[8] The offence of careless driving is a strict liability offence. This proposition of law was established by the Ontario Court of Appeal in Regina v. McIver, [1965] 2 O.R. 475; (1965), 45 C.R. 401 (Ont. C.A.). In establishing this principle, MacKay J.A., writing on behalf of the majority of the Court, stated, in part, as follows:

Section 60 [now section 130] of the Highway Traffic Act, R.S.O. 1960, c. 172, prohibits a defined type of conduct; it is silent as to intent or mens rea. In such a case, the Crown will only need to prove that the accused committed the prohibited act and the accused will be convicted unless he can show that the forbidden act was done without negligence or fault on his part. If there were an explanation of this accident having occurred without fault on the part of the accused, it was wholly within his knowledge…

[9] In his decision in Regina v. Skorput, [1992] O.J. No. 832; (1992), 72 C.C.C. (3d) 294 (Ont. Prov. Ct.), MacDonnell, J. (as he then was) considered the remarks of Mr. Justice MacKay in McIver, supra, in analyzing how the burden of proof should be allocated in careless driving cases. In that regard, he wrote, in part, as follows:

Careless driving is a regulatory offence as that term is understood in light of Sault Ste. Marie [Regina v. Sault Ste. Marie (1978), 40 C.C.C. (3d) 353 (S.C.C.)] and Wholesale Travel [Regina v. Wholesale Travel Group Inc. (1991), 8 C.R. (3d) 145 (S.C.C.)]. As was stated above, in the prosecution of a regulatory offence the Crown ordinarily establishes a prima facie case upon proving that the defendant committed the actus reus of the offence. At that point, the burden of showing that reasonable care was taken shifts to the defendant. However, careless driving is somewhat of an anomaly in that the failure to take reasonable care is part of the actus reus of the offence. In R. v. Beauchamp (1953), 106 C.C.C. 6 [[1953] O.R. 422 (Ont. C.A.)], at page 13, the Ontario Court of Appeal stated that the test of careless driving 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 a reasonable doubt that the accused, in light of the 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 to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances.

Those remarks [referring to the remarks of Mackay J.A. in McIver, supra, set out above] affirm that the 'prohibited act' which the Crown must prove in order to establish a prima facie case of careless driving is not the mere fact of an accident but rather the conduct defined in what is now s. 111 [now s. 130] of the Highway Traffic Act. In substance, the Crown must prove a departure from a standard of care. It is only when that is proved that an onus shifts to the defendant to show that he was not negligent. In McIver, MacKay J.A. accepted as correct the proposition that the defendant bears the burden of establishing his 'defence' of lack of negligence or fault on a balance of probabilities. However, he also adopted the submission that even if the defendant fails to establish lack of negligence there could not be a conviction unless the prosecution proved its case beyond a reasonable doubt. In many cases of careless driving, the effect of this will be to make the onus on the accused to establish due diligence academic. If the prosecution's case is that the defendant's driving demonstrated an absence of due care and attention, and the defence is that the defendant was being reasonably careful – i.e. that he was not negligent – any defence evidence which raises a reasonable doubt as to that issue will produce an acquittal. In that event, it would be a moot question whether the defence of due diligence was proved on a balance of probabilities.

[10] In his decision in Regina v. Kinch, [2004] O.J. No. 486 (Ont. Sup. Ct.) at paragraph 50, Durno S.C.J. noted that the test for careless driving has remained constant since the time of the decision of the Ontario Court of Appeal in Regina v. Beauchamp, supra. In the decision, Mr. Justice Durno summarized the "main criteria" for the establishment of a case of careless driving, as enunciated in Beauchamp, as follows:

• The evidence must be such as to prove beyond a reasonable doubt that the accused drove without due care and attention or without reasonable consideration for others.

• The standard of care and skill is not one of perfection. Rather it is a reasonable degree of skill, and what an ordinary person would do.

• The use of the term 'due' means care owing in the circumstances. While the legal standard of care remains the same – what the average careful man would have done in the circumstances, the factual standard is constantly shifting, depending on road, visibility, weather conditions, traffic conditions and any other condition that ordinary prudent drivers would take into consideration.

• The law does not require of any driver that he should exhibit perfect nerve and presence of mind enabling him to do the best thing possible. It does not expect him to be more than ordinary men. Drivers of vehicles cannot be required to regulate their driving as if in constant fear that other drivers, who are under observation, and apparently acting reasonably and properly, may possibly act at a critical moment in disregard of the safety of themselves and other users of the road.

• The standard was objective, impersonal and universal, in no way related to the degree of proficiency or experience of a particular driver.

• There was a further important element – that the conduct must be of such a nature that it could be considered a breach of duty to the public, and deserving of punishment. This further step must be taken even if the accused's conduct fell below the standard.

• The test where an accident has occurred, is not whether the accident would not have happened if the accused had used greater skill or care, but whether it was proved beyond a reasonable doubt that the accused, in light of existing circumstances of which he knew or should have known, failed to use the care and attention or to give to other users of the highway the consideration that a driver of ordinary care would have used, or given in the circumstances.

[11] In Regina v. Wilson (1971), 1 C.C.C. (2d) 466 (Ont. C.A.), Gale C.J.O., writing on behalf of an unanimous panel of the Ontario Court of Appeal, made the following comments pertaining to the standard of proof to be applied in adjudicating the offence of careless driving:

The appellant was convicted upon a trial de novo before the Judge of the County Court of the County of Halton of the offence of careless driving contrary to s. 60 of the Highway Traffic Act, R.S.O. 1960, c. 172. He now appeals on the ground that the learned trial judge erred in law in registering the conviction.

It is our view that the sole issue in this case was whether or not the Crown had proved beyond a reasonable doubt that the accused drove his vehicle on a highway without due care and attention. We are satisfied that there was evidence upon which the learned Judge could make a finding that the accused had done so, and that therefore his finding in that respect was correct. The appeal will therefore be dismissed.

Before leaving the matter, however, I should like to mention that in the course of his reasons for judgment the learned trial judge had this to say:

… I feel compelled to come to the conclusion in law that inadvertent negligence, however slight it may be, is sufficient for a conviction under this section.

We do not agree with that proposition of law. Each case must of necessity turn on its own facts. Mere inadvertent negligence, whether of the slightest type or not, will not necessarily sustain a conviction for careless driving. In each instance, the Crown must prove beyond a reasonable doubt that the accused either drove his vehicle on a highway without due care and attention, or that he operated it without reasonable consideration for other persons using the highway. One of these two ingredients must be proved to support a conviction under this section.

[12] In his decision in Regina v. Namink, [1979] O.J. No. 317 (Ont. Co. Ct.), at paragraphs 9, 10 and 11, Killeen Co. Ct. J. rendered the following opinion pertaining to the degree of negligence required to be considered conduct deserving of punishment in the context of the offence of careless driving:

Was, therefore, the accused guilty of careless driving? That is the question. Was the accused guilty of conduct from which the court could infer, beyond a reasonable doubt, that the accused was driving without due care and attention, or without reasonable consideration for other users of the highway.

It is trite to say that this is a quasi-criminal charge, and that to make out a charge under this section the evidence must bespeak conduct deserving of punishment in the way of a conviction under this section of our Highway Traffic Act. Mere momentary inattention, or a simple kind of error of judgment, does not bespeak the kind of conduct over which the net of this section is cast.

Here I see no evidence of the kind of conduct aimed at in this section. At best, and I put it that way, "at best" there was momentary inattention here, and mere momentary inattention is not enough to justify a conviction under this section. There is no evidence of speed here, no evidence of risk taking in the passing movement, and whether the effective cause of this accident was momentary inattention or sudden slippage on an icy patch, which could not be anticipated, the criteria for conviction under this section cannot, in law, be made out. In other words, the evidence here is so fragile that a conviction on that evidence cannot be supported in law.

[13] In his decision in Regina v. Globocki, [1991] O.J. No. 214; (1991), 26 M.V.R. (2d) 179 (Ont. Prov. Ct.), MacDonnell J. followed the reasoning enunciated in Regina v. Beauchamp, supra, noting that in adjudicating an allegation of careless driving, a court must measure the manner of the defendant's driving at the material time "against the standard of the care that an ordinarily prudent driver would have used in the circumstances faced by the defendant". He stated that the standard is not one of perfection.

[14] Furthermore in the said decision, Mr. Justice MacDonnell followed the propositions of law established in Beauchamp, supra, and Wilson, supra, in stating that in order to sustain a conviction for careless driving, "the Crown must do more than point to a bare act of negligence, however slight". He went on to state that the Crown "must show a sufficient departure from the standard of a prudent and reasonable driver to make the driving 'deserving of punishment'".

[15] Moreover, MacDonnell J. concluded that in approaching the issue of whether the conduct of the driver was evidence of a blameworthy state of mind and therefore "deserving of punishment", it was open to the trier of fact to consider whether the driver was indifferent to the effect that his/her driving behaviour had or might have had on other users of the highway.

[16] In Regina v. Pyszko, [1998] O.J. No. 1218 (Ont. C.J.), Fontana J. made the following comments with respect to the approach to be taken by the trier of fact in adjudicating careless driving allegations involving a motor vehicle collision:

The test of s. 130 is framed in very broad and general terms – "without due care and attention". Unlike other Highway Traffic Act offences it is the lack of specificity as to how the offence is committed, which causes the problem.

There is a rather strong inclination, understandable in these cases, to view the mishap itself and its unfortunate consequence, as constituting the act of carelessness. But that is not the case. The gravamen of the offence is the operating of the motor vehicle "without due care and attention" not the consequence of driving without due care and attention.

[17] In his decision in Regina v. Ali, [2003] O.J. No. 2045, at paragraph 77, Quon J.P. made the following statements regarding the degree of negligence required to support a conviction for the offence of careless driving:

The Supreme Court of Canada in Regina v. Waithe, [1989] 1 S.C.R. 1436; 13 M.V.R. (2d) 236 …, reiterated that the nature of careless driving as a regulatory offence is inadvertent negligence, while to prove the criminal driving charge of dangerous driving requires advertent negligence. However, mere inadvertent negligence will not necessarily support a conviction for careless driving: R. v. Wilson, [supra]. To be careless driving, the marked departure of the impugned driving from the standard of a prudent and reasonable driver must be deserving of punishment. That is, if the driving in question constitutes a sufficient departure from the conduct that could be expected of a reasonable driver in the same circumstances, then, in the absence of some explanation, the act itself may determine culpability.

[18] In Regina v. Erredia, 2006 ONCJ 303 (Ont. C.J.) at paragraph 6, Fairgrieve J. summarized the law relative to the offence of careless driving, as follows:

The offence of "driving carelessly", created by s. 130 of the Highway Traffic Act, is defined as driving on a highway "without due care and attention or without reasonable consideration for other persons using the highway". The law has been clear for decades that in order to make out the offence under s. 130, the driving must be of such a nature that it amounts to a breach of one's duty to the public and is deserving of punishment: see R. v. Beauchamp, [supra]. A driver is not held to a standard of perfection, and a mere error of judgment is not necessarily sufficient to establish the offence: see R. v. Wilson, [supra]. Careless driving, generally speaking, requires proof of a departure from the standard of care that a reasonably prudent driver would have exercised in the circumstances, and normally involves, I would think, conduct that includes other less serious Highway Traffic Act infractions.

[19] Furthermore, in paragraph 8 of the said decision, Mr. Justice Fairgrieve stated, in part as follows:

…In the case of careless driving, the minimum penalties provide a further indication, in my view, that even the most minor instance within the range of conduct covered by the section was intended by the Legislature to entail at least some degree of seriousness. I think it is fair to say that, in general, careless driving is meant to cover conduct that is more serious than many other minor traffic infractions that carry no such minimum penalty or that result in the loss of fewer or no demerit points. To constitute careless driving, I think, the conduct in question should not only be deserving of punishment in some abstract, moralistic sense, but should also not be so trivial that the minimum penalty prescribed by the statute would be entirely disproportionate to its gravity.

THE EVIDENCE

[20] During the course of the trial of the subject charge, I received verbal testimony from prosecution witnesses Ms. Laureen Patrick and Police Constable Robert Conant, on March 25th, 2011 and on November 21st, 2012, and from the defendant on November 21st, 2012.

(i) The Testimony of Ms. Laureen Patrick

[21] Ms. Patrick testified in this proceeding on March 25th, 2011.

[22] During examination-in-chief, Ms. Patrick testified that on May 17th, 2010, she was involved in a motor vehicle collision. In that regard, she advised that just prior to 8:00 a.m. on the said date, she was driving her motor vehicle in the left lane of three eastbound lanes of the Queen Elizabeth Way (Q.E.W.) "around" Burloak Drive in the Town of Oakville. In describing the weather conditions at that time, she stated that it was "a beautiful sunny day, dry".

[23] When Ms. Patrick was asked to describe the "general traffic conditions" on the relevant portion of the Q.E.W. as well as the speed that she was travelling at the subject time, she stated as follows:

Traffic was fairly heavy. It was the kind that you're travelling very slowly, 20 to 30 kilometres per hour and you're sort of not stopping but slowing down, going, slowing down. That kind of movement.

In clarifying her answer in this regard, she agreed with the statement put to her by the prosecutor that the eastbound traffic at the time was "moving constantly, not stopping but fluctuating between 20 [kilometres per hour] and 30 [kilometres per hour]".

[24] The prosecutor then asked the witness if she could describe what she observed "by way of traffic" behind her and what she recalled "by way of the accident happening". Ms. Patrick answered this open question as follows:

…As I said, traffic was heavy, we were moving slowly. I noticed that there was a red Lexus behind me. It was about approximately five car lengths back, and about 20 to 30 kilometres [per hour], as I stated before. The next thing I noticed was impact in my rear bumper. We stopped. The driver of that car – or, I called the police at that time while in my car. The driver of that car got out. We spoke, decided to pull over to the right-hand side of the Q.E.W. to the shoulder so that we could exchange information.

[25] Ms. Patrick testified that both the driver of the Lexus motor vehicle and herself drove their vehicles over to the right shoulder of the highway and then exited their respective vehicles. Ms. Patrick stated that she then asked the female driver of the Lexus, "what were you doing?" to which the driver responded that she was reaching for her purse which "had fallen onto the floor" and that she then "hit the back" of Ms. Patrick's vehicle. The witness stated that the police officer arrived at their location shortly after the time of this conversation.

[26] Ms. Patrick stated that it was the red Lexus which she had previously seen travelling behind her in the left, eastbound lane, which had struck the rear portion of her motor vehicle. She advised that her motor vehicle sustained damage to its rear bumper, which had to be replaced. She believed that the damage was assessed at approximately $2,500.00.

[27] Ms. Patrick stated that the Lexus sustained damage to its "front bumper-hood area". She noted that the damage to the Lexus was more significant than that caused to her vehicle.

[28] Ms. Patrick identified the defendant seated at the counsel table in Court as the driver of the Lexus which had struck her vehicle.

[29] Ms. Patrick testified that a police officer eventually attended the scene of the collision and arranged to take statements from both the defendant and herself.

[30] During cross-examination, Ms. Patrick testified that when she first observed the defendant's motor vehicle prior to the time of the collision, the vehicle was situated approximately five car-lengths behind her vehicle. She acknowledged that she made this observation about one to two minutes prior to the time of the collision. She stated that after she had made this initial observation, she did not observe the defendant's vehicle again until after it had collided with her vehicle. In that regard, she agreed with the suggestion of the defendant's representative that she would not be in a position to advise the Court as to what the defendant "was doing just prior to the collision".

[31] Furthermore, during cross-examination Ms. Patrick testified that once the police officer arrived at the area of the collision, she provided a statement to the officer pertaining to the circumstances of the collision, which was recorded by the officer. A photocopy of this written statement was then shown to her by the defendant's representative. She identified her signature on the reverse side of the document.

[32] Upon producing the said document to Ms. Patrick, the defendant's representative asked Ms. Patrick to read a certain statement apparently made by her recorded on the document. The statement recorded on the document read as follows:

I asked… driver what were you doing and she said I can't believe this, then I asked again what were you doing, she said I was reaching for my purse.

The defendant's representative then put it to the witness that in her "written statement" to the police, she had not said "anything" about the purse having fallen to the floor of the vehicle, to which Ms. Patrick replied: "In the written copy, no. Verbally, yes."

(ii) The Testimony of Police Constable Robert Conant

[33] Police Constable Conant testified in this proceeding on March 25th, 2011 and on November 21st, 2012. On March 25th, 2011, he testified that he was a police officer employed by the Ontario Provincial Police and that he had been so employed since May 2010. He stated that he had occasion to investigate the matter concerning the subject charge and that in the course of his investigation he made notes of the relevant events, in his own handwriting contained in both his police issued note-book and in a motor-vehicle collision report. I granted Officer Conant leave to make reference to his investigative notes, for the purpose of refreshing his existing memory of the relevant events.

[34] Constable Conant testified that on May 17, 2010, he was "on general patrol, in a fully-marked police cruiser". He stated that at 7:55 a.m. on that date, he received a radio call of a two-vehicle collision which had taken place in the left, eastbound lane of the Queen Elizabeth Way, near its intersection with Burloak Drive. He advised that he arrived at the location of the alleged collision at 8:23 a.m. He noted that when he arrived at the said location the vehicles involved in the collision had been moved off of the highway to the "Bronte commuter parking lot".

[35] Constable Conant testified that he attended the said parking lot where he met with the drivers of the vehicles apparently involved in the accident. The officer advised that the first person he approached was a female person, who identified herself with a valid Ontario driver's licence as Tsui-Ping Tali Wong. At that point in time, the defendant's representative advised the Court that identification of the defendant was not in issue in this proceeding.

[36] The constable testified that after Ms. Wong identified herself through the production of her driver's licence, she produced the ownership document for a 1993 four-door Lexus, red in colour, bearing Ontario licence plate number BJDV 169. Furthermore, at that time Ms. Wong provided Constable Conant with proof of insurance for the said Lexus motor vehicle.

[37] Constable Conant testified that he then met with a second "driver" in the said commuter parking lot. He advised that this female person identified herself through the production of a valid Ontario driver's licence as Laureen Patrick. The officer went on to advise that Ms. Patrick then provided him with an ownership document to a motor vehicle, being a 2010 Lincoln, blue in colour, bearing licence plate number AYHY 566, together with proof of insurance for the vehicle.

[38] Constable Conant testified that he then requested that Ms. Wong sit in the rear seat of his police cruiser for purposes of "gaining" a statement from her pertaining to the apparent motor-vehicle collision. The officer stated that at 8:25 a.m. he cautioned Ms. Wong "from his Ontario Provincial Police issued card that she may be charged with a highway traffic offence".

[39] The prosecutor then advised me that it was his intention to introduce into evidence statements allegedly made by Ms. Wong in response to questions posed to her by Constable Conant. Accordingly the Court entered into a voir dire to determine whether the prosecution was able to prove, beyond a reasonable doubt, that the statements apparently made by the defendant to Constable Conant, were made voluntarily.

[40] The voir dire was eventually completed on November 21st, 2012, when the defendant's representative conceded the voluntariness of the alleged statement. Accordingly, during the continuation of his examination-in-chief on the said date, Constable Conant read into the record the verbal statements made by the defendant in response to the questions which he posed to her, and which he had recorded in writing.

[41] In that regard, Constable Conant testified as follows:

Okay, so at 8:25 a.m. I cautioned Ms. Wong. I asked the question, 'Do you understand?' where she replied, "Yes, I do". I then asked the question, 'Do you wish to give a statement?' and she replied 'Sure'. I then asked her the question, 'Can you tell me what happened?' Her response was:

The traffic is slow, bumper to bumper. As I was driving my purse slipped. So, I tried to grab it back. So, I leaned down to grab it then my car hit the vehicle in front of me. I guess my vehicle is so small and the other vehicle is so sturdy that is why my damage is so severe.

[42] Constable Conant testified as to the balance of Ms. Wong's statement to him as follows:

Q (Constable Conant): What road were you travelling on?

A (Ms. Wong): Q.E.W. eastbound, just west of Bronte.

Q: What lane did the collision occur?

A: The fast lane.

Q: What was the distance between you and the other car?

A: Under a car length.

Q: What was your speed before the collision?

A: Under ten kilometres per hour.

Q: What was the speed at the time of the collision?

A: Under ten kilometres per hour, I think.

Q: Were you wearing your seatbelt?

A: Yes.

Q: Injuries?

A: No, I feel okay.

Q: How long did you take your eyes off the road to grab the purse?

A: About one second, maybe two.

Q: Were you on your cell phone?

A: No.

Q: How long were you in the fast lane for?

A: About an hour.

Q: When did the collision happen?

A: 7:40 a.m.

Q: Is there anything that you would like to add or change?

A: No.

[43] In completing his testimony-in-chief, Constable Conant acknowledged the defendant's advice to him that the subject collision took place on the Queen Elizabeth Way, eastbound, just west of Bronte Road. In describing the said highway in this area, the constable stated that it was a flat and straight stretch of highway comprised of four lanes, with a posted speed limit of 100 kilometres per hour.

[44] Constable Conant testified that as a result of his investigation of the subject collision, he issued the defendant a Provincial Offence Notice for the offence of careless driving under section 130 of the H.T.A.

[45] During cross-examination, Constable Conant testified that according to the accident report which he completed at the time of his investigation, he described the damage sustained by Ms. Patrick's vehicle as "light damage". Additionally, he advised that following his investigation, both Ms. Patrick and the defendant were able to drive their respective vehicles away from the area of the Bronte commuter parking lot.

[46] In completing his testimony during cross-examination, Constable Conant stated that he conducted his investigation of the subject motor vehicle collision when he attended the Bronte commuter parking lot, after both vehicles had been moved off of the Queen Elizabeth Way. He confirmed that he neither witnessed the subject collision nor attended the actual scene of the collision.

(iii) The Testimony of the Defendant

[47] The defendant testified in this proceeding on November 21st, 2012.

[48] During her examination-in-chief, the defendant acknowledged that she was involved in a motor vehicle collision on the material date in May 2010, at approximately 7:40 a.m. She further acknowledged that this collision took place on the Queen Elizabeth Way, just west of Bronte Road.

[49] Ms. Wong testified that on the subject date she was travelling on the Queen Elizabeth Way, returning to her residence in Mississauga, Ontario, after visiting her friend in St. Catharines, Ontario. In that regard, she advised that she entered on to the Queen Elizabeth Way, Toronto bound, in St. Catharines, at approximately 6:45 a.m.

[50] The defendant testified that while travelling in the "fast" or left lane of the eastbound Queen Elizabeth Way, she began to encounter traffic difficulties in the area of the junction of Highway 403 and the Queen Elizabeth Way, in Burlington, Ontario. She stated that the traffic started becoming "heavy" in that area.

[51] The defendant described the traffic as "very heavy" as she approached the area where the Queen Elizabeth Way intersected with Bronte Road. In response to her representative's query as to her speed of travel in the "fast" lane, just prior to the time of the subject collision in the area of Bronte Road, the defendant stated: "The traffic is bumper to bumper. Very slow kind of stop and go, stop and go". In describing her speed of travel on the Queen Elizabeth Way, from its junction with Highway 403 to the area where the collision took place, the defendant testified as follows:

It was – it's very slow. It's like I said the traffic getting very heavy. So, more likely I would go the max – probably, stop and go, stop and go the maximum speed I would think of if I recall probably not more than 20 [20 kilometres per hour].

[52] In response to her representative's question as to what was happening with her just before the time of the accident, and as to what happened to "cause the accident", the defendant stated as follows:

The accident happened, actually it was stop and go and all I remember is my purse is on my passenger side seats. All I remember that moment is I saw my purse is falling and inside my purse is a sentimental value. Then I just leaned forward and tried to grab it. And I guess right at that moment, with that seconds and then I hit the car at the front. It was just she might of make a stop or whatever, because it's like I said it was stop and go. So, and it was just flash of a second that happened.

[53] The representative then asked the defendant if there was an object in her purse, which was of a sentimental value to her. The defendant replied as follows:

Yes, inside my purse there was a sentimental [object]. And I definitely don't want that sentimental fell on the floor. So, I tried leaning forward and grabbed it and that's why the accident happened.

[54] When her representative asked her if she remembered how long she "looked away" to try to grab her purse, the defendant replied: "A second or two". Furthermore, in completing his examination-in-chief of the defendant, the representative asked her, "Had you not tried to grab your purse and you had seen that the vehicle stopped in front of you would you have been able to bring your vehicle to a stop?", to which the defendant replied: "Yes, definitely".

[55] During cross-examination, the defendant testified that from the time that she left her friend's residence in St. Catharines, until the time of the collision on the Queen Elizabeth Way, near Bronte Road, her purse was situated on the front passenger seat of her vehicle. She stated that when she began to encounter stop and go traffic on the Queen Elizabeth Way, in Burlington, she noticed that her purse was not fully closed and that the sentimental item in the purse, made of glass, appeared to be falling out of the purse. The defendant stated that when she noticed that the object was starting to slide out of her purse, she took steps to "reach in and grab [her] purse", in order to prevent the object from falling to the floor of her vehicle.

[56] The prosecutor and the defendant then entered into the following question and answer exchange, pertaining to the defendant's driving conduct immediately prior to the time that her motor vehicle struck that being operated by Ms. Patrick:

Q (the prosecutor): Would you agree with me Ms. Wong, that to see this object coming out of your purse and then to react to that requires you taking your eyes off the road ahead of you? You've got to look down to your right at the seat, is that correct?

A (the defendant): I would not totally look but from my glance I can see. Like I think my intention is I have my eye on the road. I just happened to have a glance and the corner of my eye catched my attention. And that's exactly what I did.

Q: And when you're looking at it out of the corner of your eye, you're not looking forward at that point, are you?

A: Well, just this is why I think at that point I have to say that when I realize that sentimental object might be falling down and my instinct at that moment it ( sic. ) just grab the purse and put it back in the place.

Q: Okay, but my question was, your eyes would not have been looking forward at that point, would they?

A: That's kind of hard – yes, I would have to say that my eye was not tends to looking straight but will be kind of half way.

Q: When you take your eyes off of the vehicle in front of you when you look at this object how close are you to the vehicle in front of you, to Ms. Patrick's vehicle?

A: Is actually its very close because I remember that the vehicle was not too far. It's within a car's distance. Like I think the traffic I remember is within one vehicle maybe that's probably the maximum length that I can think of.

Q: So, you are travelling on the Queen Elizabeth Highway, behind another vehicle, you're one car-length away from that vehicle…

A: Mm-hm.

Q: …and this object is of such value that you take your eyes off of the vehicle in front of you to concentrate on the object?

A: I just – at that moment all I remember is I have a glance of a look and then I just kind of grab it at that moment. So…

Q: The object coming out of your purse, potentially…

A: Potentially.

Q: …is the focus of your attention?

A: Because I don't want that object fall on the floor.

Q: Right, I understand that Ms. Wong. That's where your attention is focused?

A: Yes, at that moment. That's – yes.

Q: Mr. McLean asked you a question and you said to yourself prior to this accident that traffic had been stopping and starting and you'd been slowing and then speeding up, is that accurate?

A: Yes, mm-hm.

Q: You hadn't had an accident then, right?

A: No.

Q: It wasn't until your – this object is coming out of the purse that the accident happens?

A: Yes.

[57] In concluding her testimony through cross-examination, the defendant confirmed that she was of the opinion that her motor vehicle had sustained a greater degree of damage as a result of the subject collision than that driven by Ms. Patrick. In explaining the basis for her opinion in this regard, the defendant stated as follows:

I can explain, the reason why is I remember the vehicle ahead of me it was a SUV and the reason why my vehicle got damaged is because there is a hitch at the back and then when we stopped that hitch hits my hood. That's why I consider my vehicle was severe in the way that I look at it I never expect that it was just supposed to be a bumper to bumper thing. And that's why I believe the other vehicle – there was only a scratch, maybe I think there was not even any damages. But just my vehicle because as a hitch that gone into my hood.

THE ISSUES

[58] The ultimate issue in this proceeding is whether or not the prosecution has proven that the defendant committed all of the elements of the subject offence of careless driving, at the material time, beyond a reasonable doubt.

[59] The sub-issues which I must resolve are as follows:

1. whether or not the evidence before me establishes, beyond a reasonable doubt, the actus reus of the subject offence; and

2. if the prosecution has proven the actus reus to the requisite standard, whether or not the defendant has shown, on a balance of probabilities, that in committing the prohibited act she took all reasonable care, so as to excuse her from liability for this strict liability offence.

[60] The theory of the prosecution is that the defendant caused the collision between her vehicle and that driven by Ms. Patrick, which took place on May 17th, 2010 at approximately 7:40 a.m. The prosecutor submits that immediately prior to the time of the collision, the defendant operated her vehicle on the Queen Elizabeth Way in a manner which constituted driving without due care and attention or without reasonable consideration for other persons using the highway.

[61] In order to determine whether the prosecution has met its burden of proving the actus reus, beyond a reasonable doubt, I must analyze the evidence before me in accordance with the test for the establishment of a case of careless driving where an accident has occurred, as enunciated in Regina v. Beauchamp, supra. In that regard, I must examine the totality of the evidence before me relative to the defendant's driving conduct during the brief period of time immediately prior to the time that the defendant's vehicle made contact with the rear portion of the vehicle driven by Ms. Patrick, in order to reach a conclusion as to whether the conduct was indicative of a departure from the standard of care that an ordinarily prudent driver would have used in the circumstances faced by the defendant. Furthermore, if I find that the defendant's driving conduct at the material time fell below that standard of care, I must then determine whether the conduct was of such a nature as to constitute a breach of the defendant's duty to the public and "deserving of punishment". Each of these two elements of the actus reus of the subject offence must be established, beyond a reasonable doubt.

[62] This is a case where the credibility of the witnesses in this proceeding is important. I must, therefore, remind myself that the concept of reasonable doubt applies to the issue of the assessment of the credibility of the evidence and that the burden of proof of the actus reus of subject offence rests with the prosecution, beyond a reasonable doubt and that it never shifts to the defendant.

[63] In its decision in Regina v. W.(D.), [1991] 1 S.C.R. 742 (S.C.C.), the Supreme Court of Canada established certain principles to be applied by triers of fact in the assessment of credibility in the context of criminal offences. Those principles were articulated by Mr. Justice Cory, writing on behalf of the majority of the Court, in paragraphs 26, 27 and 28 of the decision, in part, as follows:

…It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. …

…A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[64] In her decision, written on behalf of the panel of the Supreme Court of Canada in Regina v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (S.C.C.), Charron J. interpreted the application of the W.(D.) supra, principles in paragraph 23 therein, as follows:

The majority [referring to the majority of the panel of the Quebec Court of Appeal in this case] rightly stated that there is nothing sacrosanct about the formula set out in W.(D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.(D.); it will depend on the context (para.112). What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. …

[65] In his decision in Regina v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.), Cory J. crafted a "model of instruction" to be used by a trial judge or a jury in determining whether the evidence in a particular criminal case establishes the guilt of an accused beyond a reasonable doubt. In the said model of instruction, the said jurist defined the term "reasonable doubt", in part, as follows:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

[66] In analyzing the evidence before me in this proceeding, relative to the issue of the proof of the actus reus of the subject offence, I must apply the principles enunciated in Regina v. W.(D.), supra, Regina v. Dinardo, supra, and Regina v. Lifchus, supra, as expressed above.

ANALYSIS

Has the prosecution proven all of the elements of the actus reus of the subject offence, beyond a reasonable doubt?

[67] In my view, the uncontradicted evidence in this proceeding has established the following elements of the subject offence, beyond a reasonable doubt:

1. that on the 17th day of May, 2010, at approximately 7:40 a.m., the defendant was operating a Lexus automobile, in the left, eastbound lane of the Queen Elizabeth Way, between its intersection with Burloak Drive to the west and Bronte Road to the east, in the Town of Oakville;

2. that the said Lexus automobile is a "vehicle" within the meaning of the H.T.A.;

3. that the aforesaid portion of the Queen Elizabeth Way, constitutes a "highway" within the meaning of the H.T.A;

4. that at the material time, Ms. Laureen Patrick was operating a Lincoln automobile, in the left, eastbound lane of the aforesaid portion of the Queen Elizabeth Way;

5. that at the material time, the front portion of the vehicle being driven by the defendant struck the rear portion of the vehicle driven by Ms. Patrick, causing some damage to both vehicles.

[68] There is, however, conflicting evidence before me relative to the issue of whether the defendant's driving behaviour at the material time established, as stated by MacDonnell J. in Globocki, supra, "a sufficient departure from the standard of a prudent and reasonable driver to make the driving 'deserving of punishment'", beyond a reasonable doubt.

[69] The evidence pertaining to the driving behaviour of the defendant immediately prior to the moment of the subject motor vehicle accident as well as the circumstances of the accident, was proffered through the testimony of prosecution witness Ms. Laureen Patrick and that of the defendant. The only other evidence relevant to the circumstances leading up to the accident was the verbal statement made by the defendant to Police Constable Robert Conant, shortly after the time of the accident, which was tendered into evidence through the testimony of Officer Conant.

[70] In my view, Ms. Patrick testified in a clear and concise fashion. There were no internal inconsistencies in her testimony and the strength of her testimony was not significantly weakened through cross-examination. Furthermore, she was responsive to questions posed to her and she did not appear to exaggerate her account of the relevant circumstances. She presented as a credible witness.

[71] On the other hand, during her testimony Ms. Patrick acknowledged that the first time she saw the defendant's vehicle prior to the time of the subject collision, was when the vehicle was travelling approximately five car-lengths behind her vehicle in the left, eastbound lane of the highway. She stated that she made this observation about one to two minutes prior to the time that the defendant's vehicle collided with her vehicle, and that she did not look at the vehicle again prior to the time that the collision occurred. During cross-examination, Ms. Patrick candidly admitted that she was not in a position to advise the Court as to what the defendant was doing immediately prior to the collision.

[72] In light of the fact that Ms. Patrick did not make any observations of the actions of the vehicle being driven by the defendant during the period of time of between one and two minutes prior to the time of the subject motor vehicle accident, I am unable to attach any significant weight to her testimony as it relates to the driving conduct in the important period of time; that being seconds prior to the time of the collision. On the other hand, Ms. Patrick's testimony as to the statement made to her by the defendant after the time of the accident, relative to the actions of the defendant in reaching for her purse must be afforded significant probative value.

[73] Furthermore, I was impressed with the manner in which the defendant presented her account of the relevant event, during the course of her testimony. She provided a detailed recounting of the circumstances of her driving conduct on the Queen Elizabeth Way at the material time. She admitted to the fact that she caused the collision by striking Ms. Patrick's vehicle, at a time when she had momentarily taken her eyes of the road in front of her to grab her purse, which was situated on the front passenger seat of her vehicle.

[74] The defendant's evidence was clear and concise. She was responsive to the questions posed of her during intense cross-examination. There were no internal inconsistencies in her testimony and she was not shaken as a result of cross-examination. Moreover, her testimony was largely consistent with the totality of the evidence in this proceeding, especially as it relates to the statements which she made to both Ms. Patrick and to Constable Conant shortly after the time of the collision. Overall, I found the defendant's testimony relative to her driving conduct at the material time to be credible and trustworthy.

[75] The conflict in the testimony of both Ms. Patrick and the defendant relates to two facts; (1) the speed of the traffic in the area of the collision, just prior to the time of the collision and (2) whether or not the defendant had advised Ms. Patrick that at the time of the collision she was reaching for her purse, which had fallen to the floor of her vehicle.

[76] During her testimony, Ms. Patrick advised that at the time of the collision, traffic over the relevant stretch of the Queen Elizabeth Way was travelling very slowly; at a rate of speed of 20 to 30 kilometres per hour, such that as she was driving on the highway she was accelerating and slowing down, but not stopping. Furthermore, Ms. Patrick stated that when her vehicle was struck by the defendant's vehicle, she had not brought her vehicle to a stop, but was reducing her speed.

[77] On the other hand, the defendant described the nature of the traffic in the relevant area at the material time as being heavy, noting that the vehicles were moving in a "stop and go" fashion. She testified that prior to the time of the collision she was travelling at a rate of speed of not more than 20 kilometres per hour. Shortly after the time of the accident, the defendant advised Constable Conant that both prior to the time of the collision and at the time of the collision, she was travelling at a rate of speed of "under ten kilometres per hour". Furthermore contrary to the testimony of Ms. Patrick, the defendant stated that at the time of the collision, Ms. Patrick's vehicle had stopped on the highway.

[78] During her testimony, Ms. Patrick stated that she had a brief discussion with the defendant following the time of the accident and prior to the arrival of the police officer. Ms. Patrick testified that during that conversation, the defendant stated that just prior to the moment of the collision she was reaching for her purse which had fallen onto the floor. At a later point in her testimony, Ms. Patrick acknowledged that her written statement to the police pertaining to this alleged statement of the defendant, did not contain a reference to the purse having fallen onto the floor of the vehicle, but only that the defendant had advised her that immediately prior to the time of the collision she was reaching for her purse.

[79] During her testimony, the defendant testified that the collision took place when she took her eyes off of the road for a matter of one to two seconds in order to lean over to grab her purse which was located on the front passenger seat of the vehicle, in order to prevent an object of sentimental value to her from possibly falling out of her open purse. According to the defendant she was successful in grabbing her purse, but unfortunately at that moment, her vehicle struck the vehicle being driven by Ms. Patrick in front of her.

[80] The defendant's testimony relative to her actions in "grabbing" the purse while it was located on the passenger seat, rather than on the floor of the vehicle, was consistent with the statement which she made to the police officer following the time of the accident when she told the Constable Conant that as she was driving "her purse slipped" at which time she "tried to grab it back" and in doing so she "leaned down to grab it", when her vehicle struck the vehicle in front of her. There is no reference in this statement that the purse which she was reaching for was located on the floor of the vehicle at the material time.

[81] In assessing the credibility of the defendant's exculpatory evidence in this proceeding in accordance with the W.(D.) principles, I find that I am left in a state of reasonable doubt as to her guilt of the actus reus of the subject charge. In reaching this conclusion I find that although I am not able to firmly believe all of the defendant's evidence relative to her driving conduct immediately prior to the time of the subject motor vehicle collision, due primarily to its obvious lack of independence, I find that her explanation as to the cause of the accident was plausible when I consider the explanation in the context of the evidence as a whole.

[82] Accordingly I find, based upon the totality of the evidence, that the defendant has raised a reasonable doubt as to the allegation that in driving her vehicle at the material time, she failed to exercise due care and attention or afford reasonable consideration to other persons using the highway. In making this finding, I have applied the second prong of the three-part test relative to the assessment of credibility, as set out in Regina v. W.(D.), supra.

[83] The preponderance of the undisputed evidence in this proceeding permits me to find, beyond a reasonable doubt that at the time of the subject collision, eastbound traffic on the Queen Elizabeth Way was moving slowly from the area of its junction with Highway 403 to the location of the subject collision just west of Bronte Road. The traffic was stop and go, such that in general, the speed of vehicles was fluctuating between ten and thirty kilometres per hour. The weather was clear and sunny and the roads were dry.

[84] The undisputed evidence establishes that the traffic conditions in the portion of the Queen Elizabeth Way, between Burloak Drive to the west and Bronte Road to the east, could be fairly described as "stop and go". While Ms. Patrick recalls that she was travelling at a rate of speed between 20 and 30 kilometres per hour when the defendant's vehicle was approximately five car-lengths behind her, about one to two minutes prior to the collision, she was not able to advise as to the distance the defendant's vehicle was behind her immediately prior to the collision. Additionally, her testimony was vague as to the speed of her vehicle at the time she was struck by the defendant's vehicle however she clearly stated that her vehicle was moving at the time that it was struck.

[85] The defendant's evidence was that she was travelling between ten and twenty kilometres per hour during the period of time immediately prior to the collision and that she believed that she was travelling at a rate of speed of no more than 20 kilometres per hour at the time of the collision.

[86] The evidence of the defendant was the best evidence as to her driving behaviour immediately prior to the accident. In that regard, the defendant testified that at the start of her journey on the Queen Elizabeth Way during the morning of the accident, she had placed her open purse on the front passenger seat of her vehicle. The purse contained a glass object, which was of sentimental value to her.

[87] The defendant stated that when she was travelling in the left eastbound lane of the highway near Bronte Road, in "heavy" traffic, she observed in her peripheral vision, that the said glass object appeared to be slipping out of her purse. She stated that she was concerned that the object might fall out of the purse and onto the floor of the car, and accordingly took immediate steps to lean over and "grab" the purse it as it was situated on the passenger seat, to prevent the object from falling out of the purse.

[88] The defendant testified that in leaning over and grabbing her purse, she "glanced" at the purse and in doing so took her eyes off of the highway and the traffic in front of her for a period of one to two seconds. She testified that at that time she was following the vehicle being operated by Ms. Patrick by a distance of approximately one car-length.

[89] The defendant stated that during the short period of time when she looked over at her purse, her vehicle collided with the rear of Ms. Patrick's vehicle at a rate of speed of approximately 20 kilometres per hour. The defendant advised that Ms. Patrick's vehicle was stopped at the time of the collision. This piece of evidence differs from that of Ms. Patrick who asserted during her testimony that while she was reducing her speed at the time of the collision, her vehicle remained in constant motion.

[90] I am of the view that in light of the congested traffic conditions faced by the defendant at the time of the subject motor vehicle collision, it was objectively foreseeable that any lapse in her driving concentration could result in a motor vehicle mishap. There is, however, insufficient evidence before me to conclude that the circumstances on the highway at the time should have caused the defendant to expect that Ms. Patrick's vehicle would have slowed down as rapidly as it did during the one to two second period of time when the defendant had taken her eyes off of the road.

[91] The defendant's actions in looking to her right in a fleeting manner and seizing her purse in an attempt to protect the glass object in it were understandable given the importance of the object to her. On the other hand, those actions were not justifiable given the "bumper to bumper" traffic conditions at the time and the fact that she was following the vehicle in front of her by a distance of only one car-length. The defendant's decision to turn her concentration away from her driving responsibilities in order to briefly focus her attention on an item within her vehicle was, in my view, an imprudent decision.

[92] The defendant's driving conduct may therefore be characterized as conduct falling below the standard of care expected of a prudent and reasonable driver in the circumstances faced by her at the material time. Accordingly, the defendant was negligent in failing to exercise greater caution in remaining alert to sudden changes in the flow of traffic which a reasonable person would recognize as being prevalent in a scenario where there was traffic congestion caused by a large volume of traffic. Her decision to momentarily take her eyes off of the road was, in the context of the traffic conditions which she was experiencing on the highway at the material time, from an objective perspective, a risky decision which was the underlying cause of the collision.

[93] I must now turn to the second part of the careless driving analysis and ask myself whether the prosecution has proven, beyond a reasonable doubt, that the defendant's driving conduct not only fell below the standard expected of an ordinary prudent driver in light of the road, traffic and weather conditions faced by the defendant at the material time, but that the conduct was of such a nature that it could be characterized as a breach of duty to the public and deserving of punishment. After carefully considering this aspect of the analysis, I am not satisfied that the defendant's driving behaviour can be described as anything more than inadvertent negligence, which is not deserving of punishment.

[94] When I weigh the defendant's exculpatory testimony in this proceeding in the context of the totality of the evidence before me, I am left in a state of reasonable doubt as to whether the defendant's conduct in deliberately taking her eyes off of the road for a span of one to two seconds, when following a motor vehicle at a distance of one car-length at a rate of speed of between ten and twenty kilometres per hour, was either reckless behaviour or behaviour indicative of an indifference to or lack of regard for the safety of other persons using the highway. In my view the defendant's driving conduct immediately prior to the time of the accident may fairly be attributable to either momentary inattention or a simple error in judgment.

[95] As stated above while the harm caused by the defendant's actions was foreseeable, the sudden reduction in the speed of the traffic in front of the defendant at the material time was not expected. If, at the relevant time, there was a specific, identifiable factor other than traffic congestion, which would have significantly increased the degree of risk associated with a one to two second lapse in driving concentration, then any actions of a defendant to ignore the warning signs and knowingly undertake a risky course of action, would constitute action which would transform inadvertent negligence into advertent negligence. It is those circumstances where a defendant is clearly aware of the risks associated with a certain course of conduct, but through indifference to the apparent and obvious risk engages in imprudent driving behaviour in spite of the anticipated risk, which attracts liability for careless driving in the quasi-criminal context.

[96] The defendant's actions in driving her motor vehicle on the Queen Elizabeth Way, prior to the accident cannot be considered "deserving of punishment". While the defendant's actions in briefly taking her eyes off the road when faced with heavy traffic conditions and an irregular cadence in the flow of traffic, constituted a departure from the driving standard expected of an ordinary prudent driver, there is no evidence before me by which I could reasonably infer that a following distance of one-car-length while both vehicles were moving at a rate of speed of between 10 and 20 kilometres per hour, was an inherently unsafe following distance. In considering the defendant's evidence in the context of the evidence as a whole, I am satisfied that the defendant has raised a reasonable doubt that she either anticipated or expected the apparent sudden reduction in the speed of the vehicle in front of her at the material time. Furthermore, the evidence does not support a finding that the subject motor vehicle accident took place because of the defendant's reckless assumption of a substantial and obvious risk.

[97] The prosecution has therefore failed to prove, beyond a reasonable doubt, the element of the actus reus of the subject offence that the negligent driving actions of the defendant causing a motor vehicle accident, constituted a breach of her duty to the public and was deserving of punishment. I am of the view that the defendant's driving conduct may be properly characterized as either momentary inattention or a "simple kind of error of judgment", in deciding to turn her focus away from her driving responsibilities for a duration of only one to two seconds, in order to manage an important but unexpected event which transpired inside of her vehicle. As stated by Killeen Co. Ct. J. in Regina v. Namink, supra, such driving conduct is not deserving of punishment in the manner of a conviction under section 130 of the H.T.A.

THE DECISION

[98] The prosecution has failed to prove the actus reus of the subject offence, beyond a reasonable doubt. In particular, the prosecution has failed to prove that at the material time the defendant drove a vehicle on the Queen Elizabeth Way eastbound, in the Town of Oakville, without due care and attention or without reasonable consideration for other persons using the highway.

[99] In light of my finding, I do not have to consider whether the defendant has established a defence of due diligence on balance of probabilities, so as to excuse her from liability for this offence.

[100] The defendant is therefore found not guilty of the subject charge of careless driving, contrary to section 130 of the H.T.A. The charge is therefore endorsed as being dismissed.

Released: March 1st, 2013

Signed: "Justice of the Peace Kenneth W. Dechert"