Ontario Court of Justice

Date: December 2, 2016

Court File No.: 4960-9386511Z YORK REGION

In the Matter of: An Appeal under the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

The Regional Municipality of York

— and —

Leonard Meyer

Before: Justice Joseph F. Kenkel

Appeal Heard on: 25 November, 2016

Reasons Delivered: 2 December, 2016

Counsel:

• Ms. V. Pankou — counsel for the Respondent
• Mr. W.P. Andrews — agent for the Appellant

KENKEL J.:

Introduction

[1] A school bus stopped to let children off. The driver angled the bus slightly to give the children more room and to help the drivers behind see the stop sign. After the children disembarked, the bus driver turned his stop signals off and drove into the passing lane. He ended up hitting the right rear bumper of a car in that lane. The bus driver was convicted at trial of making a lane change not in safety contrary to s.142(1) of the Highway Traffic Act RSO 1990 c H8.

[2] The Notice of Appeal alleged five grounds but the appellant abandoned the first prior to the hearing of the appeal. Grounds two and four make the same point so the following issues remain:

• CREDIBILITY — Whether the Justice of the Peace erred in finding the appellant's testimony, "largely credible" but disbelieving the appellant on particular points. The appellant submits that a witness is either credible or not.

• BURDEN OF PROOF — Failure to consider the evidence at trial in accordance with the instruction in R v WD, [1991] 1 SCR 742 (WD).

• FAILURE TO CONSIDER A DEFENCE — Failure to consider the appellant's defence of due diligence.

Credibility – All or Nothing?

[3] The appellant submits that the Justice of the Peace erred in finding the accused credible with respect to some parts of his evidence, but not credible on other points. In grounds two and four of the Notice of Appeal the appellant submits that if the court found the defendant credible they were bound to accept all of his evidence and an acquittal must result.

[4] A trier of fact may accept, "some, all or none" of a witness's evidence: R v Doell 2016 ONCA 350 at para 7. Assessing the evidence of a witness is not an all-or-nothing proposition even when that witness is the accused. The trial judge carefully reviewed the evidence and was entitled to make the findings she did.

WD and the Burden of Proof

[5] The learned Justice of the Peace cited WD in her reasons (Transcript p.4) and properly instructed herself in that regard. She accepted much of the appellant's evidence but found that she couldn't accept certain important points and she gave reasons for those findings. She considered whether the accused's evidence in the context of the evidence as a whole reasonably could leave a doubt. (Transcript p.10) On all of the evidence, she found that she was not left with a reasonable doubt as to the appellant's guilt. (Transcript page 10)

[6] The court properly considered WD and applied those principles to the whole of the evidence heard at trial.

Failure to Consider a Defence

[7] The trial court considered each of the issues identified by the parties. The focus at trial was on credibility and factual disputes – whether the accused committed the prohibited act. The defence of due diligence was not mentioned in defence submissions.

[8] The HTA creates offences in three categories – mens rea offences, strict liability offences and absolute liability offences: R v Wilson 2014 ONCA 212 at para 13. The offence of Turn-Not-In-Safety s.142(1) HTA is one of strict liability: R v Dillman 2008 ONCJ 101 at para 13. A defence of due diligence is available. Once the prosecution proves the prohibited act beyond a reasonable doubt, it is open to the accused to prove on the balance of probabilities that he or she took all reasonable steps to avoid committing that act. The due diligence defence must relate to the commission of the prohibited act, not some broader notion of acting reasonably: R v Kurtzman, [1991] OJ No 1285 (CA) at para 37.

[9] Section 142(1) casts a high onus on the turning driver to ensure that the turn can be made safely: R v Shabo 2016 ONCA 274 at para 12, Dillman at para 15. In this case, the court found that the driver who was hit was stopped with traffic. That driver watched in his rear mirror as the bus pulled away from the curb and drove towards him without stopping. The driver pulled forward to avoid being hit but there were other cars in front and the bus ended up contacting his rear bumper. Although the trial court found much of the school bus driver's evidence to be credible, the court did not accept his evidence on the central point - that the other car passed him after he started turning into the other lane. The whole of the evidence including the location of the contact and the photographic evidence led the court to accept the other driver's evidence. While the court did not mention the phrase, "due diligence" the factual findings at trial do not support that defence.

Conclusion

[10] The appeal is dismissed.

Delivered December 2, 2016:

Justice Joseph F. Kenkel