Court File and Parties

Ontario Court of Justice

Date: 2015-03-11

Court File No.: Halton 1260-999-12-9480

In the Matter of: An appeal under clause 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen Respondent

— And —

Sukhijinder Kande Appellant

Before: Justice D.A. Harris

Heard on: January 29, 2015

Reasons for Judgment released on: March 11, 2015

Counsel:

• Abby Woolf, for the prosecution
• Richard E. Duncan, agent for the defendant Sukhijinder Kande

HARRIS J.

INTRODUCTION

[1] Sukhijinder Kande was charged with committing 15 offences contrary to the Highway Traffic Act.

[2] He pled guilty to two charges involving log books for his commercial motor vehicle.

[3] Crown counsel withdrew 12 charges.

[4] Mr. Kande pled not guilty with respect to a charge of careless driving contrary to section 130 of the Highway Traffic Act. A trial was held and the presiding justice of the peace convicted him.

[5] Mr. Kande has appealed against that conviction.

GROUNDS OF APPEAL

[6] The Amended Grounds of Appeal contended that the presiding justice of the peace:

1. erred in law by dismissing the nonsuit motion on the basis of the Crown's speculative evidence and requiring the defendant to testify because the justice of the peace wanted to hear the defendant's testimony;

2. erred in fact by ignoring the testimony of the Crown's witnesses that the accident was caused by a load shift in the defendant's trailer and that speed was not a factor in the accident;

3. erred in law by accepting speculative and hearsay evidence by the Crown's expert witness regarding tests done with empty trailers in the inspection of two similar loads in different trucks some time after the offence date;

4. erred in law and fact by dismissing the defendant's evidence of the speed of his truck when it was the only evidence before the court;

5. erred in law by interfering in the trial process by adducing evidence not established by the prosecution or defence during the trial;

6. erred in law and fact by finding that the prosecution had proven its case despite all of the unanswered questions referred to in his judgments.

CARELESS DRIVING

[7] The offence of careless driving is set out in section 130 of the Highway Traffic Act as follows:

130. 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 and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years.

[8] The Ontario Court of Appeal decision in R. v. Beauchamp is perhaps the leading authority with respect to this offence.

[9] I have attempted to summarize the comments made by Mackay J.A. in that case in the following five paragraphs.

[10] To make out careless driving, the evidence must be such as to prove beyond a reasonable doubt that the defendant drove a motor vehicle without due care and attention or without reasonable consideration for others.

[11] The standard of care and skill to be applied is not that of perfection. Rather, what would an ordinary, prudent person have done in relation to the event complained of?

[12] The use of the term "due care", which means care owing in the circumstances, makes it quite clear that, while the legal standard of care remains the same in the sense that it is what the average careful man would have done in like circumstances, the factual standard is a constantly shifting one, depending on road, visibility, weather conditions, traffic conditions that exist or may reasonably be expected, and any other conditions that ordinary prudent drivers would take into consideration. It is a question of fact, depending on the circumstances in each case.

[13] The standard is an objective standard.

[14] In addition:

There is a further important element that must also be considered, namely, that the conduct must be of such a nature that it can be considered a breach of duty to the public and deserving of punishment. This further step must be taken even if it is found that the conduct of the accused falls below the standard set out in the preceding paragraphs. This principle may be somewhat difficult to apply, but I think it might be illustrated by the common example of a motorist attempting to park at the curb in a space between two other parked vehicles. Frequently one or other of the parked vehicles is bumped in the process. Damage seldom arises, because cars are equipped with bumpers, but if damage were caused it might well give rise to a civil action for damages, but it could hardly be said to be such a lack of care or attention as would be considered to be deserving of punishment as a crime or quasi-crime.

THE APPLICATION FOR A NON-SUIT

[15] At the close of the Crown's case, the agent for Mr. Kande moved for a non-suit with respect to the charge. The presiding justice of the peace dismissed that application. His reasons for doing so are as follows:

There is evidence that on that particular part of the highway something happened. Something happened that caused the accident. Whether that something happened was a result of driver error or poor loading. Now let's say the Court accepts that it's poor loading. The driver is responsible for his load. If it's not poor loading, the driver is responsible for his vehicle at all times. What happened going around that corner to shift? Was its speed? Did he have to brake suddenly for something? I don't know.

I want to hear the defendant. I've only heard one side of the story at this point in time. Like if this was being done as a trial in absentia and all I had was say perhaps the written statement, I'd have to discount that written statement. So all I've heard is the one side and based on hearing that one side I probably would find for the prosecution.

There is enough evidence in my mind at this point, so this is why I have to hear from the defendant. I have to have that report brought into evidence, clarified and expanded upon so that I can make a proper judgment.

But at this point in time, like I say if it was a trial in absentia, yeah, there'd probably be enough to go forward with it and that's how I make my determination on non-suit. At this point, yeah, they've met all the elements to prove their point without having something said to the contrary.

We've got some evidence of that in the report of the defendant but not enough to lock it down for a finding for the defence.

[16] I am satisfied that the justice of the peace was correct in dismissing the application for a non-suit. He made, however, a number of significant errors in his reasons.

[17] The first of these errors is that the test to be applied in a trial in absentia is very different from the test to be applied in an application for a non-suit.

[18] The test on an application for a non-suit is "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty." In answering this question, the presiding justice is not permitted to weigh or consider the quality of the evidence. He is simply to determine if there is "some" evidence upon which a jury "could" convict.

[19] That is very different from the test to be applied at the conclusion of a trial in absentia.

[20] A defendant who does not appear for his trial is still presumed to be innocent. In the ex parte proceedings, the prosecutor must prove the defendant's guilt beyond a reasonable doubt according to the generally applicable evidentiary and procedural rules.

[21] When I apply the correct test, I find that there was some evidence upon which a jury could convict.

[22] Provincial Constable Cory Kostyra testified for the Crown. He was qualified as an expert in commercial motor vehicle inspections.

[23] He testified that he inspected the vehicle driven by Mr. Kande and that he found no mechanical defects with respect to either the tractor or the trailer.

[24] He examined two other tractor trailers which he was told had come from the same plant with basically the same load as Mr. Kande had.

[25] He testified that he had been told that they were loaded in the same fashion. There was a set standard as to how they wanted their product loaded. He conceded that he could not say for certain because when he saw Mr. Kande's load, it was all over the highway.

[26] He expressed the opinion that one of two things had happened.

[27] The first was that Mr. Kande:

Went around the corner at a speed too fast for the condition of his load and taking into consideration the road dynamics itself and the condition of his load how it was loaded and due to that as he went around the corner, the load shifted and took the truck over.

[28] The second was that:

The driver again took the road, the ramp, too fast taking into consideration the truck and the condition of the load and the road's dynamics and as he went around the corner the truck began to go over and the load went as well and shifted as a result of it going over.

[29] His conclusion was "the driver went into that ramp too fast taking all things into consideration."

[30] During cross-examination he said that it had to be driver error. It could not have been anything else.

[31] He went on to say that:

So it's definitely driver error because the driver is responsible for the truck, the mechanical components of the truck and he's responsible for the load and the way the load is loaded. So I have no doubt or hesitation saying that it was loaded properly because it was loaded as per Ontario standards. So the load was loaded properly. There's no indication to tell me anything else other than that. So your two scenarios, if the driver goes around that corner too fast and the load shifts because of that, that's driver error because he is responsible to drive that vehicle keeping in consideration and understanding what the dynamics of the vehicle and the load are, he is required to drive to that standard with due care and attention. So his speed going around that ramp, a loaded truck going around a ramp, would be a different speed than a Maserati going around that corner on that ramp. Okay, there's a definite difference of speed that he is going to have to do going around that corner to keep that vehicle upright and safe and operating safe. So it's definitely driver error. If the driver – and that's scenario number one. Scenario number two; if the driver went around the corner too fast and the truck started to roll and then the load shifted as part of that roll, then again, driver error on both counts. Now you talked about the re-constructionist report saying at different speeds and that, well, you know I don't feel in any way that what I'm telling you would be different – I'm sure is not different from what he's saying. He just may be able to clarify and rule out on those scenarios more than I can based on his re-constructionist qualifications which I can't speak about those things. So beyond a shadow of a doubt, the truck went over, the trailer went over and it's driver error. There's no one else responsible for it. There's no other reason to explain it other than he went around the corner too fast taking in consideration that truck and the load.

[32] The first problem with his evidence is that his opinions were based in part on inadmissible hearsay or the unsupported assumption that Mr. Kande's trailer had been loaded in the same manner as the other trailers observed by Provincial Constable Kostyra.

[33] A second problem is that this evidence was contradicted by that of Provincial Constable Chadwick, the accident re-constructionist who concluded that the accident was most likely the result of a load shift. Provincial Constable Chadwick specifically stated that he could not say what speed might cause such a shift. He could not say whether a shift was more likely to happen at a higher speed or a lower speed. Neither could he say how fast the vehicle was going. He never said that speed was a factor in causing the accident.

[34] The final, and most serious, problem with Provincial Constable Kostyra's evidence was that he was not qualified to express most of his opinions. He was qualified only as an expert in "commercial motor vehicle inspections". His CV showed that he had been similarly qualified on 19 previous occasions as an expert in "commercial motor vehicle inspections" or as an expert in "commercial motor vehicle safety inspections". On one occasion he was qualified as an expert in "commercial motor vehicle inspections and defect's impact on driveability". As a result, he was qualified to state that he had inspected the vehicle driven by Mr. Kande and that he had found no mechanical defects with either the tractor or the trailer. All of the other opinions expressed by him were well beyond his area of expertise.

[35] However, the agent for Mr. Kande not only did not object to any of this evidence at the time, he even led some of it during his cross-examination of Provincial Constable Kostyra. So it is not appropriate for him to now argue that the justice of the peace should not have considered that evidence when determining whether there was sufficient evidence to allow the case to proceed and to put the defendant to his election whether to call evidence or not.

[36] That then leads to the next error made by the presiding justice of the peace in his ruling. That occurred when he effectively directed the defendant to testify.

[37] First he said "I want to hear the defendant".

[38] Then later he said "There is enough evidence in my mind at this point, so this is why I have to hear from the defendant".

[39] It was not up to the presiding justice of the peace to decide whether Mr. Kande should testify. He was to decide whether to allow the application for a non-suit. It would then be up to Mr. Kande to decide whether he wished to testify or not. The words used by the presiding justice of the peace effectively took that decision away from Mr. Kande.

[40] A third error occurred when the justice of the peace stated that:

if this was being done as a trial in absentia and all I had was say perhaps the written statement, I'd have to discount that written statement. So all I've heard is the one side and based on hearing that one side I probably would find for the prosecution.

[41] The statement by Mr. Kande had been introduced into evidence by the Crown and it was evidence before the court. There was no reason why the justice of the peace would have to discount it. In addition, saying that he would discount it could well have added further pressure on Mr. Kande to testify.

[42] None of these errors affected the validity of the ruling on the non-suit application. They will all come into play later however in my determination of the outcome of this appeal. I will deal with them at the appropriate time.

THE INTERVENTIONS BY THE JUSTICE OF THE PEACE

[43] After Mr. Kande answered questions asked by his agent and by Crown counsel, the justice of the peace questioned him as follows:

The Court: The only knowledge that you have about your load is what somebody else has told you of this load. They told you there were engine blocks. It was on a piece of paper. That's the only knowledge you have of your load?

Mr. Kande: Yes.

The Court: So if one of the loaders was a thief and they put on 143 engine blocks, you wouldn't know that until you got to the other end.

Mr. Kande: Yes, it happens with us sometimes. It happens also.

The Court: And if somebody put on a hundred pounds of cocaine and hidden it in the load, you wouldn't know anything about that.

Mr. Kande: No, I would not know.

The Court: How can you accept responsibility for any load without seeing it?

Mr. Kande: Yes, we cannot take responsibility but some companies they say that they are responsible, they'll keep the load, they'll put the load and they'll take the responsibility.

The Court: All right. Now I have a little bit of confusion about where you were going. When you started out, you took a load from where to you said you unloaded at Romulus. Where did that load come from?

Mr. Kande: Yes, I unloaded at that same dock and picked up from there.

The Court: Okay. Where did the load that you took to Romulus come from?

Mr. Kande: That was from St. Louis where I had to unload from there I had picked up the load.

The Court: Okay. So you went from St. Louis to Romulus?

Mr. Kande: Yes.

The Court: Now you're coming from Romulus to where?

Mr. Kande: St. Louis.

The Court: You're going back to St. Louis?

Mr. Kande: Yes.

The Court: And the only way to get the St. Louis is to come back through Ontario?

Mr. Kande: Yes from 401 to 403 then taking QEW.

The Court: Okay. So you weren't traveling to St. Catharines?

Mr. Kande: No, sorry, I'm sorry it was St. Catharines. I'm sorry.

The Court: Thank you. I'm not a geography major but I was really confused by that one.

Mr. Kande: I'm sorry.

The Court: Okay, all right. That's what I thought I understood first and then St. Louis came into it and I got all confused. Okay, all right. So you're traveling from Romulus across the border. You came across at Windsor?

Mr. Kande: Yes.

The Court: In Windsor is that a big bridge?

Mr. Kande: Yeah.

The Court: Okay. No problem with the load there?

Mr. Kande: No, because it's a small one, it slowly, slowly goes up.

The Court: Okay. And on any of the other ramps that you had to travel on, say the ramp from the 401 to the 403, no problem on that ramp?

Mr. Kande: No I didn't have any.

The Court: Okay. Is there any hills are sharp curves on the 403?

Mr. Kande: No, there's nothing. It's smooth.

The Court: Coming from the Lincoln Alexander Parkway to Highway 6, you're on the 403 come past the Lincoln Alexander Parkway and you're traveling east on the 403 towards the Queen Elizabeth, are there any land features there that might cause you to drive a little more carefully?

Mr. Kande: I don't remember but I drove very fine.

The Court: What speed were you traveling on the 403?

Mr. Kande: I was at 100.

The Court: Okay, okay, thank you.

[44] Crown counsel then asked two questions and the agent for Mr. Kande asked four. Then the following occurred:

The Court: Just one other question. On the 403 approximately what speed were you traveling?

Mr. Kande: I was going the normal speed. There was traffic and it could be sometimes 90, it could be 100 or so.

The Court: Okay. If you were traveling at 100 kilometres an hour, how long does it take you to slow that loaded truck to 50 kilometres an hour?

Mr. Kande: In the truck we have two brakes, one is engine brake and one is the foot brake and if you just press the engine brake and also the foot brake, you can stop the truck pretty in a short time. But when I know that I do take that ramp and then I would slow down well in time.

The Court: That doesn't tell me did you use your engine brake and your foot brake to slow down for that ramp?

Mr. Kande: Normally we use.

The Court: Both brakes.

Mr. Kande: Yes we use because it is good for both the brakes because if you put one brake, it's not good for that brake so we use both the brakes.

[45] A trial is an adversarial process, not an investigative process by the justice into the charge against the defendant. The prosecutor, counsel and paralegals are primarily responsible for putting their respective cases before the court, and examining and cross-examining witnesses.

[46] A justice may intervene and may ask questions and in fact should do so where necessary. There are, however, certain definite limits on that right.

[47] A justice should only intervene and ask questions of a witness to clear up an ambiguity, explore a matter left vague by the witness's answers or ask questions which should have been asked by counsel or agent in order to bring out some relevant matter.

[48] Prudence and the resulting judicial restraint must be all the greater where the defendant is a witness.

[49] The test for determining whether a trial justice's interventions have compromised the appearance of trial fairness is an objective one and asks "whether a reasonably minded person who had been present throughout the trial would consider that the defendant has not had a fair trial." The issue is not whether the defendant was in fact prejudiced by the interventions, but whether the defendant or a reasonable observer might reasonably consider that the defendant had not had a fair trial.

[50] The record must be assessed in its totality and interventions evaluated cumulatively, not as isolated occurrences, from the perspective of a reasonable observer present throughout the trial.

[51] While addressing this issue, the Supreme Court of Canada and the Ontario Court of Appeal have both stressed the legal maxim that "it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

[52] It was clearly appropriate for the presiding justice of the peace to clarify the situation where Mr. Kande was referring to St. Louis rather than St. Catharines.

[53] His other questions however appeared to be designed to assist in proving the case against Mr. Kande. The Crown was already represented by a lawyer who was there to present the Crown's case. There was no need for the presiding justice of the peace to assist him in that regard.

[54] I am particularly concerned about the similarity between this case and R. v. Stucky:

Moreover, it cannot be said that nothing came of the trial judge's interventions or that, in the end, his decision was not affected by his comments during the trial. The trial judge used the evidence and admissions he obtained to support his reasons for judgment in a number of instances.

[55] The justice of the peace also used the evidence and admissions he obtained to support his reasons for judgment here.

[56] I also cannot ignore the fact that Mr. Kande might not have chosen to testify at all, thereby exposing himself to this cross-examination by the justice of the peace, but for the pressure created by the justice of the peace's comments during the non-suit ruling.

[57] I also note that if the presiding justice of the peace was ever going to feel that it was necessary for him to intervene in the proceedings, it should have happened at the point where Crown counsel was cross-examining Mr. Kande and the following exchange took place:

Crown counsel: So he was lying when he said you originally said 60

Mr. Kande: I don't know but I think I never told him 60.

[58] Appellate courts have held repeatedly that it is improper to call upon a defendant to comment on the credibility or the veracity of Crown witnesses. Questions of this nature suggest that there is some onus on a defendant to provide a motive for the Crown witness' testimony and, as such, they undermine the presumption of innocence.

[59] In determining whether a reasonably minded person who had been present throughout the trial would consider that the defendant had not had a fair trial, I must also consider what happened at the beginning of the second day of the trial, when Mr. Kande was late in arriving at court as a result of bad traffic conditions.

[60] Some of the remarks by the presiding justice of the peace were as follows:

Well for someone with seven years experience and knowledge of the roads, I don't know how he can be well in excess of half an hour late. Having said that, when this Court deals with 9.1 matters, fail to respond, we have consistently granted the defendant at least half an hour before we proceed under 9.1 and one half hour is all this Court is giving any defendant on a scheduled trial.

I want to know where the hell he is.

He'd better be on his death bed.

[61] Then after Mr. Kande arrived, the justice of the peace stated:

When I deal with 9.1 matters, I've always allowed the defendant one half hour and I tell you sir, if the defendant hadn't been here we would have proceeded. This is not good for someone who professes to be a professional and know the roads.

[62] This was not a 9.1 matter.

[63] Section 9.1 of the Provincial Offences Act states that:

9.1 (1) A defendant is deemed to not wish to dispute the charge where the defendant has been issued a notice of the time and place of trial and fails to appear at the time and place appointed for the trial.

(2) If subsection (1) applies, section 54 does not apply, and a justice shall examine the certificate of offence and shall without a hearing enter a conviction in the defendant's absence and impose the set fine for the offence if the certificate is complete and regular on its face.

[64] Mr. Kande had in fact appeared the day before and defended the case against him. His agent was present on the second day and had explained that Mr. Kande was delayed by traffic. I will repeat then what I said before, that this was not a 9.1 matter. It should never have been compared with one. The other comments were also inappropriate.

[65] In light of all of the above, I have no doubt that a reasonably minded person who had been present throughout the trial would consider that Mr. Kande did not have a fair trial here. That conclusion is further reinforced by a number of comments contained in the Reasons for Judgment given by the presiding justice of the peace.

THE REASONS FOR JUDGMENT OF THE JUSTICE OF THE PEACE

[66] The presiding justice of the peace gave the following Reasons for Judgment:

I'm always amazed at how things connect. The other day I was reading an article on a local company that has developed a new type of skid to hold coils of steel so that they can be loaded into those bulk containers. Apparently, the ships come in from China and Asia into the ports in Vancouver full of goods and these are shipped all across the country and there's nothing to put in them when they go back to Vancouver, go back on the ships to be used again. And this group has come up with this new way of palletizing steel coils so that they can be safely conveyed in containers. And it was a very interesting article and you could see all the safety features in it for these coils. And apparently both of our major train carriers are very very interested in this product. It was touting this local company in their innovation.

And so I guess I have general interest in things. Another thing that I'm interested in is the safety of our community and the city of Burlington has two major rail lines running through it the 407 the 403 the Queen Elizabeth highway.

The Queen Elizabeth is operating at something in excess of 135 percent of capacity and that was told to us back in 1995, so it's probably in far worse condition as far as volumes go.

And on those routes of transportation are carried every commodity known to God and man. And the trucks run 24 hours a day. The trains, you can hear them at 4:00 in the morning if you've got your windows open. And we read about train derailments. We hear about vehicle crashes and if the commodities that are involved are dangerous, chemicals, oil, that horrible tragedy in Québec with the rail line.

We have the potential for that in this community and it is something that has been in the back of my mind and it's hard to disassociate yourself from these thoughts. I've been on city council. I know my community. I know that industry has to survive if the country is to survive. We depend and we rely on transporters of goods for our economic well-being.

And there are sometimes when I sit here and wonder how a person who, all they want to do is drive a truck. How they can go day to day with all the regulations, all the rules, all the forms that have to be filled out and the minute you get the government involved in something, you got to fill out forms, and the government is all over the transportation industry.

But rules and regulations are there for our safety and our benefit. They are there because in some cases it's obvious that's what needs to be done. They are there in some cases because something has happened that nobody had considered before and now we've got to put something in place to answer that kind of situation. And we are all bound by rules and regulations. I mean I don't know how many volumes the Ontario Regulations are. I have no idea. But when you get the Highway Traffic Act and regulations like this you can, you know, believe we live under a very, very regulated society. But the regulations are there for the most part for our own good, our own benefit.

Today we are dealing with a matter of careless driving and it is a serious matter. We don't need people on our highway to drive carelessly. If careless driving is made out, we have to send word to the individual perpetrator and to society as a whole that such conduct is not acceptable particularly when you have the privilege of earning your income, doing something that you love. I don't imagine a lot of people are out there driving trucks because there's nothing else for them to do but rather because they enjoy the job. You have to get some satisfaction out of the job.

This case in particular is challenging. It is challenging because of the potential for harm, injury, death, that was there that day and there must have been some guardian angel around. Mr. Kande was very fortunate that that whole unit didn't go over to the ground below. He did suffer pain but he still is here today walking around enjoying pretty good health today I would imagine.

What we do know about that day, beautiful clear day. The photos show a lovely clear blue sky, barely a cloud in it which is nice for February. No snow on the ground

We know that the truck was carrying auto-parts, one hundred and forty-four engine blocks on eight skids. No one can say with any certainty whether or not the truck was loaded properly. Mr. Kande has told us that the vehicle, the keys were removed from him at the yard after he had backed the truck up to the dock. The vehicle was locked. The doors closed and sealed without him seeing.

Now I don't care who's loading my truck. If I am responsible for that load, I have a right to see in it. I have a right. I'm going to be taking that out on the highway.

Now we have heard that if the vehicle had been grossly incorrectly packed, it wouldn't have gone very far for various reasons. If the load was all on one side, it would've been too heavy, tilted, whatever and it would have been very quickly recognized.

But there are too many unknowns. The talking about the skids being plastic, could they have contributed to the matter? We don't know specifically. We were told that the packing of this truck, although there were no blocks or friction mats or I don't know, what other items are sometimes used that it was still packed in accordance with accepted practices.

No one has told this court that plastic skids are any more prone to sliding or any less prone to sliding.

We are told that the reason for the security of the packing and loading operation was because of the value of the commodity. It would be too much of a stretch to have this Court believe that there was not a procedure in place to load trailers correctly also to protect the commodity. You can't have half a system.

If as has been postulated, the material was not packed correctly, the question arises, why did it not cause trouble long before a ramp some three quarters of an hour from home, St. Catherine's, on a journey of what, six, eight hours, I don't know the route. But I'd lay money that it wasn't straight and even all the way, that there weren't some curves in the road of a similar nature to this one.

We are told that this ramp is canted and it's a word I have never seen before in officer Tripps, I guess this is a report by Officer Chadwick, sorry:

Super elevation is a cant or tilting of the roadway which is designed to help offset the centripetal forces which develop as a vehicle travels around a curve. From the perspective of a driver traveling this route, the ramp curved to the right while sloping upwards.

Now if the material on the pallets, if the pallets were extra slippery in the road is canted upward, one would expect the pallet to slide down, seems logical.

But the pallets slid up pushing the trailer into the median or into the guard rail. What usually causes that? The centrifugal force that the road was designed to offset. What caused the centrifugal force? The only conclusion this court can come to his speed.

The only conclusion the court can come to is speed. And speed of a vehicle is not something that is momentary inattentiveness. The vehicle is traveling from a highway with a regulated speed of 100 kilometres per hour. It is moving on a ramp which has no specific speed limit posted. Quite frankly, I do not accept the defendant's testimony that he was driving 50 kilometres per an hour. That strikes me as being unreasonable. The defendant was driving at a speed fast enough to cause the skids to move and to push the trailer into the guard rail to tip it. We were told that the trailer could not tip by itself empty unless the vehicle was going an excessive rate of speed which was quite impossible to attain.

However, with the load shifting it certainly tip at a much, much lower speed. It might've tipped at 60 kilometres an hour. It might even have tipped at 50 kilometres an hour. Well, it did tip at 50 kilometres an hour if we believe the defendant. But in either case, for the load, that was too fast to be going. I cannot accept that it was going at 50 kilometres an hour. It defies logic. It defies the reality of the situation.

The gentleman was three quarters of an hour from home after a long trip. He took a load down to St. Louis, offloaded there. Picked up a load in St. Louis, drove it to Michigan, off-loaded there, picked up another load, was coming home. That's a long trip. He's close to home. His guard is down. He wants to get home. I don't imagine that anybody could tell us how long he'd been on the road given the goings on with the logbooks.

But I would suggest and I firmly believe that it was his actions and his actions alone that caused this accident and in the circumstances the driving was careless and there will be a finding of guilt and a conviction entered.

[67] I have reproduced the full Reasons for Judgment in order to illustrate both what was not said by the justice of the peace and what he did say.

[68] Dealing firstly with what was not said, I noted immediately that there was no mention anywhere of the analytical process mandated by the Supreme Court of Canada in R. v. W.(D.).

[69] Justices have to make decisions and often have to do so in a particular fashion. R. v. W.(D.) is one example of this. Justices also have a duty to give reasons for their decisions.

[70] Reasons for judgment serve three main functions. They tell the parties affected by the decision why the decision was made. They provide public accountability of the judicial decision; justice is not only done, but is seen to be done. Finally the reasons permit effective appellate review.

[71] Having said that, the Supreme Court of Canada has acknowledged the constraints of time and the general press of business in criminal trial courts and affirmed that the degree of detail required may vary with the circumstances and the completeness of the record. I recognize that provincial offences trial courts are just as busy, if not busier.

[72] Appeal courts considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered.

[73] These purposes are fulfilled if the reasons, read in context, show why the justice decided as he or she did. The object is not to show how the justice arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the justice made that decision.

[74] The justice need not expound on matters that are well settled, uncontroversial or understood and accepted by the parties. This applies to both the law and the evidence. It is reasonable to infer that the trial justice seized the import of the evidence and it is generally reasonable to infer that the trial justice understands the basic principles of the law at issue in the trial.

[75] This said, the presumption that trial judges know the law with which they work on a day-in day-out basis does not negate the need for reasons to show that the law is correctly applied in the particular case.

[76] The Supreme Court of Canada has more specifically stated that a trial justice is not required to recite the rule set out in R. v. W.(D.), provided that the reasons demonstrate that he had seized the substance of the critical issue of a reasonable doubt in the context of a credibility assessment.

[77] The Reasons for Judgment in this case do not demonstrate that fact.

[78] The presiding justice of the peace stated that:

Quite frankly, I do not accept the defendant's testimony that he was driving 50 kilometres per an hour. That strikes me as being unreasonable. The defendant was driving at a speed fast enough to cause the skids to move into push the trailer into the guard rail to tip it. We were told that the trailer could not tip by itself empty unless the vehicle was going and excessive rate of speed which was quite impossible to attain.

However, with the load shifting it certainly tip at a much, much lower speed. It might've tipped at 60 kilometres an hour. It might even have tipped at 50 kilometres an hour. Well, it did tip at 50 kilometres an hour if we believe the defendant. But in either case, for the load, that was too fast to be going. I cannot accept that it was going at 50 kilometres an hour. It defies logic. It defies the reality of the situation.

[79] This appears to address the first step in R. v. W.(D.). However, the justice of the peace does not explain why he concluded that the defendant's testimony was unreasonable or defied logic or defied the reality of the situation. It was necessary that he do so. He needed to do more than to simply say that the evidence was unreasonable or defied logic or defied the reality of the situation. He needed to explain how the evidence did these things.

[80] Mr. Kande's evidence was contradicted by the opinions expressed by Provincial Constable Kostyra but the justice of the peace did not indicate that this was the basis for him disbelieving Mr. Kande. In any event, as I stated earlier, Provincial Constable Kostyra was not qualified to express those opinions. There was therefore no admissible evidence contradicting Mr. Kande. There was only the evidence of Provincial Constable Chadwick which tended to support Mr. Kande's evidence.

[81] The justice of the peace made no mention of whether Mr. Kande's evidence left him with a reasonable doubt as required in the second step in R. v. W.(D.).

[82] The Supreme Court of Canada stated however in R. v. R.E.M. that when, in a case that turns on credibility, a trial justice explains that he has rejected the defendant's evidence, but fails to state that he has a reasonable doubt, this does not constitute an error of law; in such a case the conviction itself raises an inference that the defendant's evidence failed to raise a reasonable doubt.

[83] My difficulty with that approach here is that the presiding justice of the peace in this case never, ever, mentioned the need for proof of guilt beyond a reasonable doubt.

[84] This is a legal principle that I would ordinarily presume that any justice of the peace would know and apply. This is not an ordinary case however. In light of the various errors referred to earlier in my Reasons for Judgment and in light of the following comments, I am not prepared to presume anything of the sort here.

[85] The justice of the peace did say that he was concerned for the safety of his community. He referred to the rail disaster in Quebec. He discussed how the motor vehicle accident in this case could have led to serious injuries or damage.

[86] Why did he refer to these things? Were they part of his decision making process? I do not know the answer to that. I do know however that they should not have been considered in determining whether the Crown had proven Mr. Kande guilty beyond a reasonable doubt.

[87] Later, he stated, "Now I don't care who's loading my truck. If I am responsible for that load, I have a right to see in it. I have a right. I'm going to be taking that out on the highway."

[88] There are a number of problems with this statement.

[89] First of all, the justice of the peace had heard no evidence that Mr. Kande had a right to look into the trailer. Neither is this something that he could take judicial notice of.

[90] A court may properly take judicial notice of any fact or matter which is so generally known and accepted that it cannot reasonably be questioned, or any fact or matter which can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned.

[91] There is greater scope in taking judicial notice of facts relating to legislation or judicial policy (legislative facts) and facts relating to the fact finding process (social facts) than facts directly related to the adjudication (adjudicative facts). Social fact evidence is social science research that creates a frame of reference or background context for deciding factual issues that are crucial to the resolution of a particular case. On the other hand, a fact that is adjudicative and does not meet one of the above two criteria will not be judicially noticed. The closer the fact is to an issue that would dispose of the matter, the greater the scrutiny the fact must be subject to before judicial notice is taken, regardless of how a fact is characterised.

[92] I note that Mr. Kande picked up the trailer in Romulus, Michigan, a location governed by laws other than the Ontario Highway Traffic Act. There was no evidence before the justice of the peace to say that Mr. Kande had a right to look into the trailer in the State of Michigan. Common sense might suggest that the trailer was in fact sealed to comply with some sort of export / import regulations but even that is at best informed speculation and not evidence.

[93] Another problem here is that it is again not clear if this was a basis upon which the justice of the peace decided that Mr. Kande had been driving carelessly. If so, it is an erroneous basis for doing so. The standard set out in R. v. Beauchamp is not a subjective standard of what a particular justice of the peace would have done in the circumstances, but rather is an objective standard of what would an ordinary, prudent person have done.

[94] Shortly after this, the justice of the peace stated "But there are too many unknowns." I presume that this did not form any basis for the eventual decision because one might logically assume that "too many unknowns" would lead to a reasonable doubt and hence to an acquittal.

[95] He later stated "I don't know the route. But I'd lay money that it wasn't straight and even all the way, that there weren't some curves in the road of a similar nature to this one." What did he mean by this? What use did he make of it? I do not know the answers to these questions and that concerns me. I am concerned that the presiding justice of the peace may have somehow included this in his reasoning. If he did, he should not have. He should not have taken judicial notice of how straight or even the road is. I have driven that route hundreds of times but I certainly would not take judicial notice of how straight or even it might be. The presiding justice of the peace certainly should not have speculated or "laid money" on the road condition. In the absence of actual evidence, he should never have made this statement.

[96] The justice of the peace described Mr. Kande's route as starting in St. Louis despite the fact that, in answer to questions asked by the justice of the peace himself, Mr. Kande had testified that his references to St. Louis had been in error and that he had meant to say St. Catharines.

[97] In the second to last paragraph of his Reasons the justice of the peace refers to the "goings on with the log books". Did this somehow play a part in the final decision? Again I do not know. The Reasons for Judgment are replete with comments about things which might or might not have been improperly considered in reaching the decision to convict.

[98] The Reasons for Judgment conclude with "But I would suggest and I firmly believe that it was his actions and his actions alone the caused this accident and in the circumstances the driving was careless and there will be a finding of guilt and a conviction entered." This is far from being an unequivocal statement that the presiding justice of the peace was satisfied that the Crown had proven guilt beyond a reasonable doubt.

CONCLUSIONS

[99] The Supreme Court of Canada has stated that "if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed".

[100] I find that the deficiencies in the Reasons for Judgment in this case do prevent meaningful appellate review. I do not know whether the justice of the peace was satisfied that the Crown had proven guilt beyond a reasonable doubt. Neither do I know which factors discussed by him in his Reasons for Judgment actually formed part of his decision making process. In light of this, I find that an error of law has been made here.

[101] I also previously found that a reasonably minded person who had been present throughout the trial would consider that Mr. Kande did not have a fair trial.

[102] In addition, I have previously noted that the opinion evidence of Provincial Constable Kostyra was the only evidence capable of proving that Mr. Kande drove his motor vehicle carelessly and that Provincial Constable Kostyra was not qualified to express those opinions. Accordingly, there was no evidence properly before the court to establish the guilt of Mr. Kande. There was certainly insufficient evidence to establish guilt beyond a reasonable doubt.

DISPOSITION

[103] The relevant portions of section 120 of the Provincial Offences Act provide that:

120.(1) On the hearing of an appeal against a conviction … the court by order,

(a) may allow the appeal where it is of the opinion that,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground, there was a miscarriage of justice.

(2) Where the court allows an appeal under clause (1) (a), it shall,

(a) where the appeal is from a conviction,

(i) direct a finding of acquittal to be entered, or

(ii) order a new trial.

[104] I am allowing the appeal and setting aside the conviction. As to whether I should order a new trial or direct a finding of acquittal to be entered, I am satisfied that to order a new trial would be contrary to the interests of justice.

[105] The appeal is allowed. The conviction is set aside and a finding of acquittal is entered.

Released: March 11, 2015

Signed: "Justice D. A. Harris"