Court File and Parties

Court File No.: Halton Information no. 139584

Date: 2015-11-10

Ontario Court of Justice

Between:

Her Majesty The Queen

— AND —

Sean Anthony O'Dowd

Before: Justice of the Peace Kenneth W. Dechert

Heard on: June 24, 2015 and July 13, 2015

Reasons for Judgment released on: November 10, 2015

Provincial Offences Court – Burlington, Ontario

Counsel:

J. Dafoe and A. Woolf for the prosecution

No appearance by or on behalf of Sean Anthony O'Dowd, even though notified of time and place

Statutes, Regulations and Rules Cited

Cases Cited

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

Introduction

[1] In Information no. 139584, the defendant Sean Anthony O'Dowd stands charged as follows:

that he on or about the 24th day of November, 2013 at the City of Burlington, in the Region of Halton, did commit the offence of driving carelessly contrary to section 130 of the Highway Traffic Act; and
that he on or about the 24th day of November, 2013 at the City of Burlington, in the Region of Halton, being in charge of a motor vehicle and directly or indirectly involved in an accident did fail to remain at the scene of the accident, contrary to section 200(1)(a) of the Highway Traffic Act.

[2] On June 24th, 2015, the defendant failed to appear for the scheduled 1:30 p.m. trial of the said charges. Accordingly, following arraignment at 2:08 p.m., I entered pleas of not guilty to the said charges on behalf of the absent defendant, and the proceedings then continued before me by way of a trial in the absence of the defendant. The ex parte trial was then adjourned until July 13th, 2015 for continuation, when it was completed. It was then adjourned until November 10th, 2015 for my judgment.

[3] The Crown was represented by Ms. A. Woolf on June 24th, 2015 and by Ms. J. Dafoe on July 13th, 2015. The defendant did not appear in court on either of the said trial dates.

The Law

(i) Relevant Statutory Provisions

[4] The defendant is charged with the offence of "careless driving", contrary to section 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as "the H.T.A." and the with the offence of "fail to remain at the scene of the accident", contrary to paragraph 200(1)(a) of the H.T.A.

[5] Section 130 of the H.T.A. 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…

[6] Paragraph 200(1)(a) of the H.T.A. reads as follows:

Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall,

(a) remain at or immediately return to the scene of the accident.

[7] The following terms, which are relevant to both charges herein, 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 or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;

'motor vehicle' includes an automobile, a motorcycle, a motor assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road building machine;

'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 a street car.

(ii) Relevant Common Law

(a) Careless Driving

[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 and Wholesale Travel. 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.)]](https://www.canlii.org/en/on/onca/doc/1953/1953canlii60/1953canlii60.html), 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. 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.

[13] 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'".

[14] 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.

[15] 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.

[16] 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.

(b) Fail to Remain at the Scene of the Accident

[17] In the case of Regina v. Weir, [1992] O.J. No. 1506 (Ont. C.J. – Prov. Div.), the accused was charged with the offence of "fail to remain", contrary to paragraph 174(1)(a) of the Highway Traffic Act, R.S.O. 1990, c. H.8, (the predecessor to paragraph 200(1)(a) of the H.T.A.), and the related offence of "fail to stop at the scene of the accident, with intent to escape criminal or civil liability", contrary to subsection 252(1) of the Criminal Code, R.S.C. 1985, c. C-46, as amended.

[18] In his decision in this case, Stone J. made the following comments relative to the classification of the said offences:

There are subtle differences between the offences created by the above two sections [the offence of fail to remain under paragraph 174(1)(a) of the Highway Traffic Act and the offence of fail to stop at the scene of the accident under subsection 252(1) of the Criminal Code]. The actus reus of both offences for our purposes (leaving aside questions of assisting injured persons) involves leaving the scene of the accident before completing statutory duties. The difference lies in the mens rea involved: under the Criminal Code section, the Court must determine whether there was a criminal intent to escape civil or criminal liability, while I find the Provincial offence to be one of strict liability. …

[19] As stated above, the offence of "fail to remain" under paragraph 200(1)(a) of the H.T.A., has been judicially classified as an offence of strict liability. The concept of strict liability offences as a recognized category of regulatory offences, was established in Canada by the Supreme Court of Canada in its decision in Regina v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; (1978), 40 C.C.C. (2d) 353 (S.C.C.). In that decision, Dickson J. (as he then was) writing for the unanimous Court, defined these public welfare offences, as follows:

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. …

[20] In his decision in Regina v. Hill, [1973] S.C.J. No. 158 (S.C.C.), on appeal from a judgment of the Ontario Court of Appeal affirming, without reasons, the judgment of Osler J. in Regina v. Hill, [1972] 2 O.R. 402-404 (Ont. H.C.), Mr. Justice Dickson, writing on behalf of the majority of the Supreme Court of Canada, made, in part, the following comments pertaining to the definition of the term "accident" in the context of paragraph 140(1)(a) of the Highway Traffic Act, R.S.O. 1970, c. 202 (now paragraph 200(1)(a) of the H.T.A.):

… The word 'accident' is not defined in the Highway Traffic Act and is not easy of definition as its meaning has a certain chameleon-like quality, changing its colour with the context in which it is found. It may mean simply any chance mishap or unforeseen contingency or occurrence; it may mean something more. Counsel for Mrs. Hill maintained that for the purpose of the Highway Traffic Act an 'accident' consists of two elements, 'chance occurrence' and 'resulting loss, injury or damage'. Counsel cited Fenton v. Thorley and Co. Limited ([1903] A.C. 443), 'any unintended or unexpected occurrence which produces hurt or loss' and Regina v. Morris [(1971), 56 Cr. App. R. 175] at p. 178, 'an unintended occurrence which has an adverse physical result'. The other view which is open is that expressed by Osler J. that an 'accident' occurs the moment two vehicles come into contact accidentally and even without damage. I do not think it necessary at this time to decide whether the view held by Osler J. is the correct one for, on the facts of this case, as I understand them, the mishap which befell Mrs. Hill was productive of damage. Before Osler J. and before the Court of Appeal of Ontario the argument proceeded on the footing that there had been damage but lack of knowledge of that damage on the part of the appellant. … I have concluded that the case against Mrs. Hill includes damage and hence, there was an 'accident', on any definition of the word, within the meaning of s. 140(1)(a).

The Issues

[21] The ultimate issue which I must decide in this ex parte trial proceeding is whether or not the Crown has proven all of the essential elements of the actus reus of each of the subject strict-liability offences to the standard of proof beyond a reasonable doubt. If the Crown is able to meet its burden in this regard, the mental element of negligence is automatically imported into the offences. The legal onus of proof then shifts to the defendant to establish on a balance of probabilities, that in committing the relevant prohibited act, he either took all reasonable steps to avoid the particular event or did so, on the basis of an honest and reasonable mistake of fact.

[22] If the totality of the evidence shows, on a balance of probabilities, that in committing the actus reus of the respective strict-liability offence the defendant took all reasonable care, he will be excused of liability for that offence. On the other hand, if the evidence fails to establish either the defence of due diligence or the defence of reasonable mistake of fact, the defendant will be convicted of the offence.

The Evidence

[23] The Crown proffered evidence in this ex parte proceeding, through the testimony of Police Constable Roger Charles and Police Constable Pritpal Nagra, both of the Halton Regional Police Service. I received the testimony of Officer Charles on June 24th, 2015 and I received Officer Nagra's testimony on July 13th, 2015.

(i) The Testimony of Police Constable Roger Charles

[24] Officer Charles testified that on Sunday, November 24th, 2013, he took part in an investigation of a "single motor vehicle collision", in the course of his duties as a police officer with the Halton Regional Police Service. He advised that shortly after 11:30 a.m. on that date, he attended the area of the east side of Walkers Line, just north of Britannia Road, in the City of Burlington, in response to a report that a motor vehicle had rolled over and down an embankment on the east side of Walkers Line at the said location.

[25] Constable Charles testified that upon arriving at the scene of the "collision", he observed a grey-coloured Toyota Camry motor vehicle, bearing Ontario licence plate number AJBP 280, located on the side of a ravine adjacent to the east side of Walkers Line. He noted that this vehicle was situated approximately 75 feet below the level of the highway, facing up towards the highway, "on its passenger side resting precariously against a tree".

[26] Constable Charles stated that upon examining the automobile, he observed that its driver's side air bag had been deployed. He advised that the motor vehicle was unoccupied and that he was unable to locate any individuals in the ravine, in the vicinity of the disabled motor vehicle. He noted that the vehicle appeared to be "completely destroyed" as it "had extensive damage" to all sides and to the under carriage.

[27] In describing the portion of Walkers Line immediately adjacent to the area where the said motor vehicle was located, Officer Charles stated that it was a two lane undivided asphalt roadway, travelling in a north/south direction. He advised that the motor vehicle was located on the side of the hill adjacent to the east side of the highway, being the northbound lane. In describing the said highway in the area where the said Toyota motor vehicle would likely have been travelling at the time that it left the roadway, the officer made note of the existence of a downhill curve running in an easterly direction, just north of the area where the disabled vehicle was found.

[28] Constable Charles testified that once he determined that there were no injured persons or witnesses in the vicinity of the said vehicle in the ravine, he returned to his police vehicle to attempt to determine the identity of the registered owner of the subject vehicle. Once the constable determined the identity of the registered owner, he passed that information on to Police Constable Nagra for further investigation.

[29] Constable Charles testified that after he provided Officer Nagra with the information regarding the registered owner of the motor vehicle, he remained at the scene of the collision to facilitate the removal of the damaged Toyota vehicle. He advised that the vehicle was removed from the scene of the collision at approximately 1:40 p.m.

[30] Constable Charles testified that following the removal of the vehicle, he remained at the scene of the collision for a period of 30 minutes, during which time he met with the defendant who had been driven to his location by Constable Nagra. Constable Charles testified that he had a brief discussion with the defendant in his police cruiser. The officer advised that at that time, the defendant verbally identified himself as Sean O'Dowd.

[31] Constable Charles testified that based upon information that he received from Constable Nagra, and upon reviewing the contents of a statement made by the defendant and recorded by Constable Nagra, he issued two "Part III summons" to Mr. O'Dowd, one for the offence of "careless driving", contrary to section 130 of the H.T.A. and the other for the offence of "fail to remain", contrary to section 200(1)(a) of the H.T.A. He advised that he concluded his investigation of the subject motor vehicle collision after issuing the two summonses.

(ii) The Testimony of Police Constable Pritpal Nagra

[32] Constable Nagra testified that on Sunday, November 24th, 2013, he was on duty in his capacity as a uniform police officer.

[33] He testified that at approximately 11:30 a.m., on that date, he and other officers were dispatched to the area of Walkers Line and Britannia Road, in the City of Burlington to investigate a motor vehicle collision. He stated that while he was travelling to the area of the reported motor vehicle collision, he was asked to attend the address of the apparent registered owner of the motor vehicle involved in the subject collision. In that regard Officer Nagra attended a residence municipally known as 2252 Walkers Line, Unit #6, in the City of Burlington, in an attempt to further his investigation of the reported collision.

[34] Constable Nagra testified that based upon the results of his investigation at that time, he determined that Sean O'Dowd was the driver of the motor vehicle involved in the reported collision. He stated that at approximately 12:15 p.m., he was able to contact Mr. O'Dowd at his place of employment.

[35] Constable Nagra advised that upon telephoning Mr. O'Dowd, he asked him to attend the scene of the collision in order to provide a statement to the police. He stated that Mr. O'Dowd eventually attended the scene.

[36] Constable Nagra testified that after he contacted Mr. O'Dowd he attended the scene of the collision. He stated that upon arriving at the scene "at the south end of Walkers Line and Britannia Road", he observed "a vehicle on the east side of Walkers Line near the top of the hill". He went on to state that this vehicle, which he described as a "grey sedan" had "gone off the roadway and rolled over into the trees and had come to a stop as a result of coming to rest against some of the trees".

[37] In describing the site of the collision, Constable Nagra stated that Walkers Line ran north and south and that Britannia Road intersected with Walkers Line at two locations. He advised that Britannia Road ran in a westerly direction from Walkers Line at the top of a small hill. He went on to advise of the existence of a downhill curve on Walkers Line north of this location, but south of its second intersection with Britannia Road. He stated that Britannia Road, at this second intersection, ran in an easterly direction from Walkers Line.

[38] Constable Nagra testified that Mr. O'Dowd arrived at the scene of the collision at approximately 1:04 p.m. He advised that Mr. O'Dowd provided him with a statement pertaining to the circumstances of the collision.

[39] Following a voir dire, I determined that the Crown had established the voluntariness of the statement made by the defendant to Constable Nagra, beyond a reasonable doubt. Accordingly, I received the statement into evidence during the course of the trial proper.

[40] Constable Nagra testified that he met with Sean O'Dowd shortly after he was dropped off at the scene of the collision by a co-worker. He stated that he obtained a verbal statement from Mr. O'Dowd, while Mr. O'Dowd was seated in his police cruiser. He advised that in that regard he wrote out the collision report based upon statements "dictated" to him by Mr. O'Dowd.

[41] Constable Nagra testified that the defendant verbally identified himself as Sean O'Dowd of 2252 Walkers Line, Unit #6 Burlington, born on the 26th day of June, 1990. The officer advised that upon completing the said collision report, it was signed by both the officer and Mr. O'Dowd.

[42] During the course of his verbal statement to Constable Nagra, Mr. O'Dowd advised that he had been involved in two motor vehicle collisions during the morning of November 24th, 2013. He advised that at approximately 7:40 a.m. that morning he left his house in Burlington, to attend work at a Wendy's restaurant in Milton, Ontario. He stated that he was driving a Toyota Camry motor vehicle, which was owned by his mother Anne O'Dowd. He stated that, at that time, as he was driving the said vehicle in a northerly direction on Walkers Line, in Burlington, it "went off" the roadway.

[43] In describing how the car went off the roadway, Mr. O'Dowd stated that as he was approaching a curve in the road, the vehicle did not "take the curve and it went straight" such that it ended up off of the road. He advised that at that time, the road conditions were "dry" and the weather conditions were "clear". He indicated that there were no other persons in the subject Toyota vehicle at the time of the collision.

[44] During the course of his statement, Mr. O'Dowd acknowledged that the speed of his vehicle might have "caused the car to not take the curve". When asked about the speed of his vehicle immediately prior to the time of the collision, he responded "70 to 80 kilometers per hour". Furthermore when Constable Nagra asked Mr. O'Dowd if he was attempting to turn when the collision occurred, Mr. O'Dowd responded in the affirmative, noting that he was "taking the turn on the road".

[45] Constable Nagra then testified as to the balance of the questions posed by him to Mr. O'Dowd and Mr. O'Dowd's responses, as follows:

Q: What did you do when the car went off the roadway?

A: The airbags went off. I climbed through the window to get out.

Q: What did you do next?

A: I walked home and then got the other car to go to work.

Q: Which other car?

A: My Volkswagen Golf.

Q: Plate number?

A: I'm not sure but it might be B as in Bravo, PPD 373. It is black.

Q: Was there anyone else in the Golf with you when you went to work?

A: No.

Q: Were you involved in a m.v.c. [a motor vehicle collision] with the Golf?

A: Yes.

Q: Where?

A: Britannia and Tremaine would be the closest intersection.

Q: Was the accident with the Golf reported to police?

A: Yes it was.

Q: What happened to the Golf?

A: It got towed to Durantes.

Q: What did you do after the Golf was towed?

A: Tow truck driver gave me a lift to work.

Q: What time did you get to work?

A: For about 10:30 a.m.

Q: Before I called you at about 12:10 p.m., did you report the accident with the Camry to police?

A: No, I didn't.

Q: Why not?

A: I was going to, lots going on.

Q: Did you call anyone after the accident with the Camry?

A: No.

Q: Were you consuming alcohol in the past 24 hours?

A: Yes.

Q: When was your last drink?

A: Around 11:00 p.m. last night.

Q: How much did you drink last night?

A: Quite a bit to be honest, six to eight beers.

Q: Have you consumed any alcohol since the accident with the Camry?

A: I had a beer after both accidents at the Swiss Chalet in Milton.

Q: What time was the beer?

A: Between 11:00 and 12:00 this morning.

Q: Anything else you think I need to know?

A: No.

[46] Constable Nagra testified that based upon his experience in patrolling Walkers Line near Britannia Road in the City of Burlington, that the posted speed limit in that area is 60 kilometres per hour. The officer went on to state that the posted speed limit in the area immediately prior to the location of the "curve" on Walkers Line, might be 50 kilometres per hour.

Analysis

[47] In analyzing the evidence proffered in this ex parte trial, I must determine whether or not the Crown has proven the actus reus of each of the subject offences to the standard of proof beyond a reasonable doubt. As stated above, if the Crown has met its legal burden of proof in this regard, then the defendant will be found guilty and convicted of the offences unless the totality of the evidence establishes on a balance of probabilities, that in committing the strict-liability offences, the defendant took all reasonable care.

[48] In this proceeding, the Crown argues that the evidence proffered establishes, beyond a reasonable doubt, that on November 24th, 2013, the defendant was driving a motor vehicle in a northerly direction on Walkers Line, north of Britannia Road in the City of Burlington, when it left the roadway and rolled down the side of an embankment. It is the theory of the Crown that immediately prior to the time of this incident, the defendant was driving the subject vehicle on the said highway, without due care and attention and that he is, therefore, guilty of the offence of driving carelessly.

[49] Furthermore, it is the theory of the Crown that the said incident constituted "an accident" which had occurred on a highway, requiring the defendant to remain at the scene of the accident. The Crown submits that the evidence establishes, beyond a reasonable doubt, that the defendant left the scene of the accident immediately after it occurred, and failed to immediately return to the scene. The Crown therefore argues that the defendant is, therefore, guilty of the offence of fail to remain at the scene of the accident.

(i) The Offence of Careless Driving

[50] In my view, based upon the evidence proffered by the Crown in this ex parte proceeding, the following elements of the actus reus of the subject offence of careless driving have been proven, beyond a reasonable doubt:

(i) that on the 24th day of November, 2013, just after 7:40 a.m., the defendant, Sean Anthony O'Dowd was driving a Toyota Camry automobile in a northerly direction on Walkers Line, just north of its intersection with Britannia Road, in the City of Burlington;

(ii) that the said Toyota Camry automobile is a "vehicle" as that term is defined by the H.T.A.; and

(iii) that Walkers Line in the City of Burlington is a "highway" as that term is defined by the H.T.A.

[51] In considering the issue of the proof of the identity of the defendant, Sean Anthony O'Dowd, as the driver of the Toyota Camry motor vehicle at the material time, I acknowledge that the testimony of the two Crown witnesses in this proceeding identifies the driver of the said vehicle as being Sean O'Dowd, rather than Sean Anthony O'Dowd as the defendant is described in the Information.

[52] On the other hand, the evidence in this proceeding establishes that the collision report, containing the verbal statement of Sean O'Dowd as recorded by Officer Nagra, was signed by Sean O'Dowd on November 24th, 2013. In signing the report, Mr. O'Dowd recorded his date of birth as June 26th, 1990 and his address as 6-2252 Walkers Line, Burlington. This information is consistent with that recorded in the Information identifying Sean Anthony O'Dowd as the defendant in this proceeding.

[53] Accordingly, in considering this piece of evidence in the context of the evidence as a whole, I am able to draw a reasonable inference that Sean O'Dowd, with a date of birth of June 26th, 1990 and an address of 6-2252 Walkers Line, Burlington, is one and the same person as Sean Anthony O'Dowd, with a date of birth of June 26th, 1990 and an address of 6-2252 Walkers Line, Burlington, as he is described, as the defendant, in the Information herein.

[54] The only other issue to be determined relative to the careless driving charge, is whether Sean Anthony O'Dowd was, at the material time, driving the Toyota motor vehicle on a highway without due care and attention. In analyzing the evidence relative to this sub-issue, it is important to remind myself that I am required to focus on the defendant's driving conduct while he was driving the vehicle on the highway prior to the time of the subject motor vehicle accident, rather than the accident itself. As stated by Fontana J. in Regina v. Pyszko, supra, "the gravamen of the offence [of careless driving] is the operating of the motor vehicle 'without due care and attention' not the consequence of driving without due care and attention".

[55] The only evidence of the defendant's driving behaviour as he was operating his vehicle on Walkers Line prior to the time that it left the highway, is the defendant's statement as to the circumstances of the motor vehicle accident contained in the subject collision report.

[56] In that statement, Mr. O'Dowd admitted that on November 24th, 2013, shortly after 7:40 a.m., he was driving a Toyota Camry vehicle in a northerly direction on Walkers Line in Burlington. He went on to state as follows: "then I went to take this curve, maybe my speed or something caused the car to not take the curve and it went straight and it ended up where it did". He advised that immediately prior to the time that his vehicle left Walkers Line in the vicinity of the curve on the highway, he was driving his vehicle at a rate of speed of 70 to 80 kilometres per hour.

[57] In making the foregoing statement, Mr. O'Dowd acknowledged that he was driving the subject Toyota motor vehicle in the morning of November 24th, 2013, when he lost control of the vehicle as he was attempting to manoeuvre the vehicle through a curve on the highway. He appeared to be of the belief that the fact that he was driving his motor vehicle at a rate of speed of 70 to 80 kilometres per hour, contributed to his inability to control his vehicle as it entered the said curve.

[58] The Crown argues that based on the defendant's admission that the speed of his motor vehicle at the relevant time was the likely cause of the vehicle leaving the roadway in an unsafe manner, it has proven, beyond a reasonable doubt, that Mr. O'Dowd was driving the said vehicle without due care and attention. In making this argument, the Crown submits that the fact that defendant was operating the vehicle at a rate of speed of between 70 and 80 kilometres per hour; well in excess of the posted 60 kilometres per hour speed limit, while attempting to manoeuvre his vehicle through the curve on the highway, constituted a departure from the standard of care that an ordinary, prudent driver would have exercised in such circumstances.

[59] It would appear that the argument of the Crown is that the defendant's failure to reduce the speed of his vehicle to the level of the lawful speed limit when entering the subject curve, constituted not only objectively imprudent driving conduct, but behaviour which was indicative of an indifference to the effect that his actions might have had on other users of the highway. The Crown therefore submits that the defendant's driving conduct at the relevant time was conduct, which was deserving of punishment.

[60] I am of the view that the Crown has failed to prove, beyond a reasonable doubt, that at the material time the defendant was driving the said Toyota motor vehicle without due care and attention. Accordingly, the Crown has failed to discharge its burden to establish all of the elements of the actus reus of the offence of careless driving, beyond a reasonable doubt.

[61] I find that while the defendant's actions in driving his vehicle at a rate of speed of between 10 and 20 kilometres per hour over the lawful speed limit as he approached the curve on the road was, in fact, a departure from the standard of care that an ordinary prudent driver would have used in those circumstances, the departure was not sufficient enough to be considered a breach of the defendant's duty to the public, and therefore, deserving of punishment.

[62] The defendant's conduct in driving within the curve of the highway, at a rate of speed in excess of the lawful speed limit was imprudent in the circumstances. It therefore constituted negligent driving behaviour.

[63] However, based upon the limited evidence before me relative to the defendant's driving conduct prior to the time of the subject motor vehicle accident, I am of the view that the defendant's failure to reduce the speed of his vehicle to a rate of speed which would have ensured a safe negotiation of the curve on the roadway, is properly characterized as an error in judgment, equivalent to inadvertent negligence, rather than advertent negligence.

[64] In reaching this conclusion, I have taken into consideration the defendant's admission that he was driving his automobile at a rate of speed of between 10 and 20 kilometres per hour over the posted speed limit. That is the only evidence before me as to the speed of the defendant's vehicle at the material time.

[65] There is no evidence before me that the defendant was operating his motor vehicle at an excessive rate of speed relative to the speed limit; for example at a rate of speed of more than 30 kilometres per hour in excess of the speed limit, for a sustained period of time. This type of driving conduct would, in my view, be indicative of the conduct that an individual who was indifferent to the effect that his driving behaviour might have on the safety of other users of the highway, might display. Such driving conduct would constitute a sufficient departure from the standard of a prudent and reasonable driver to make it deserving of punishment.

[66] In conclusion, given the paucity of evidence in this proceeding relative to the specifics of Sean Anthony O'Dowd's driving behaviour immediately prior to the time that the vehicle that he was driving left the roadway, I am of the view that the prosecution has failed to establish, beyond a reasonable doubt, that the behaviour in question constitutes a departure from the standard of care of the ordinary, prudent driver which is significant enough to be considered a breach of the defendant's duty to the public, and therefore, deserving of punishment.

[67] Accordingly, the Crown has failed to prove all of the essential elements of the actus reus of the subject careless driving charge, beyond a reasonable doubt.

(ii) The Offence of Fail to Remain at the Scene of the Accident

[68] In my view, based upon the evidence proffered by the Crown in this ex parte proceeding, including the verbal statement made by the defendant, the following elements of the actus reus of this offence, have been proven beyond a reasonable doubt:

(i) that on the 24th day of November, 2013, just after 7:40 a.m., the defendant Sean Anthony O'Dowd was driving a Toyota Camry automobile in a northerly direction on Walkers Line, just north of its intersection with Britannia Road, in the City of Burlington;

(ii) that the said Toyota Camry automobile is a "vehicle" as that term is defined by the H.T.A.; and

(iii) that Walkers Line, in the City of Burlington is a highway as that term is defined by the H.T.A.

[69] The balance of the elements of the actus reus of this offence may be encapsulated in the following sub-issues:

whether or not an accident occurred on a highway, to wit: Walkers Line, in the City of Burlington, on November 24th, 2013, just after 7:40 a.m.?;
if an accident so occurred, whether or not a vehicle, to wit: the Toyota Camry vehicle being driven by the defendant at the material time, was directly or indirectly involved in the accident?;
whether or not the defendant was in charge of the said Toyota Camry vehicle at the time that it was either directly or indirectly involved in the accident?; and
if the defendant was in charge of the said vehicle at the time of the accident, whether or not he failed to remain at the scene of the accident?

[70] In my view the statement made by the defendant on November 24th, 2013 resolves the outstanding elements of the offence of fail to remain at the scene of the accident, as summarized in the sub-issues identified above.

[71] During his statement, Mr. O'Dowd admitted that on November 24th, 2013, at approximately 7:40 a.m., he began to drive the said Toyota Camry motor vehicle in a northerly direction on Walkers Line, in the City of Burlington. He was the only occupant of this vehicle at the time.

[72] He stated that as he was operating the vehicle in the northbound lane on Walkers Line, he approached a "turn" or "curve" in the highway. He advised that as the driver of the Toyota vehicle, he was unable to safely manoeuvre it through the curve. He remarked that the vehicle went straight and travelled off of the roadway.

[73] During his testimony, Constable Charles advised that when he attended the scene of the accident shortly after 11:30 a.m. that morning, he discovered the heavily damaged Toyota Camry vehicle on its passenger side "resting precariously against a tree", located approximately 75 feet below the level of Walkers Line.

[74] I find that the incident as described by Mr. O'Dowd in his collision statement supports the proposition that the incident was in fact "an accident which occurred on a highway", to wit: Walkers Line. The incident involving Mr. O'Dowd losing control of the subject Toyota vehicle and leaving the highway in an apparent unsafe manner, is a circumstance which falls within one of the various definitions of the term "accident", identified by Dickson J. in his decision in Regina v. Hill, supra, for purposes of paragraph 200(1)(a) of the H.T.A. The defendant's apparent inability to negotiate the degree of the curve on Walkers Line at the relevant location, resulting in the Toyota vehicle leaving the roadway and rolling down the embankment, may be properly characterized as a "chance mishap" or a "chance occurrence", which has resulted in "loss, injury or damage".

[75] Accordingly the unexpected incident as described by the defendant in his statement is, in fact, an "accident", which has occurred on a highway. Furthermore, the evidence before me clearly establishes that the said Toyota vehicle was directly involved in the accident at the material time.

[76] Additionally, the fact that Mr. O'Dowd was driving the Toyota and that he was the only occupant of the vehicle at the time of the accident, is evidence which permits me to reasonably infer that he was "in charge" of the subject Toyota vehicle at the time of the accident.

[77] Finally, during the course of his statement made to Constable Nagra, Mr. O'Dowd admitted that following the occurrence of the accident, he climbed out of the damaged Toyota vehicle through its window, and proceeded to walk to his home at 2252 Walkers Line in Burlington. He stated that once he arrived at his residence, he retrieved his Volkswagen Golf motor vehicle for purposes of using it to travel to his place of employment in Milton, Ontario.

[78] Based on the totality of the evidence in this proceeding, I find that Mr. O'Dowd left the scene of the accident immediately after it occurred in the early morning of November 24th, 2013, and that he did not return to the scene until approximately 1:04 p.m. that afternoon.

[79] In conclusion, based on the totality of the evidence in this proceeding, which is uncontradicted, I am satisfied that the Crown has proven all of the elements of the actus reus of the subject offence of fail to remain at the scene of the accident, beyond a reasonable doubt. Those elements are as follows:

that on the 24th day of November, 2013, shortly after 7:40 a.m., the defendant, Sean Anthony O'Dowd was in charge of a Toyota Camry vehicle being driven on Walkers Line, just north of its intersection with Britannia Road, in the City of Burlington;
that at that time, the defendant lost control of the vehicle which he was driving, such that the vehicle left Walkers Line in an unsafe manner and rolled down an embankment adjacent to the highway;
that the circumstances of the incident whereby the defendant lost control of the subject Toyota vehicle, was an "accident which occurred on a highway" for purposes of paragraph 200(1)(a) of the H.T.A., as it was an unforeseen or chance occurrence which resulted in minor injuries and property damage and which took place on Walkers Line in Burlington; and
that following the accident, Sean Anthony O'Dowd failed to remain at or immediately return to the scene of the accident as he was required to do under the provisions of paragraph 200(1)(a) of the H.T.A. In this regard Mr. O'Dowd admitted that after the occurrence of the accident, he walked home from the scene of the accident without first contacting the police and subsequently retrieved his other car to use it to attend his place of employment. Constable Nagra testified that Mr. O'Dowd did not return to the scene of the accident until 1:04 p.m. on the date in question, when he responded to the scene at the request of the police.

[80] I therefore find that the Crown has met its legal burden of proof in respect of the subject charge of fail to remain at the scene of the accident, in this ex parte proceeding.

The Decision

[81] The Crown has failed to prove the actus reus of the offence of driving carelessly against the defendant herein, to the standard of proof beyond a reasonable doubt. Accordingly, Sean Anthony O'Dowd is found not guilty of the charge of driving carelessly, contrary to section 130 of the H.T.A.

[82] The Crown has, however, succeeded in proving the actus reus of the subject offence of fail to remain at the scene of the accident, to the standard of proof beyond a reasonable doubt. As the actus reus of that offence has been established to the requisite standard, the fault element of negligence is automatically imported into the offence. There is, however, no evidence before me which proves on a balance of probabilities, that in committing the offence of fail to remain at the scene of the accident, the defendant took all reasonable care. His presumed negligence is not, therefore, negated.

[83] The defendant, Sean Anthony O'Dowd is therefore found guilty of the charge of fail to remain at the scene of the accident, contrary to paragraph 200(1)(a) of the H.T.A., and a conviction is registered.

Released: November 10, 2015

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

R. v. O'Dowd, 2015 ONCJ 716

Case Summary