Court File and Parties

Court of Justice of Ontario

Reference: R. v. Strang, 2017 ONCJ 950

Date: 2017-12-04

Region: Toronto

Indexed as: R. v. Margorzata Strang

In the Matter of the Highway Traffic Act, R.S.O. 1990, c. H.8

Between: Her Majesty the Queen, Prosecutor

And: Margorzata Jani Strang, Defendant

Decision

Before: Justice of the Peace Mohammed Brihmi

Appearances:

• Ms. D. Cadieux, Prosecutor for the Province of Ontario
• Ms. M. Strang, Defendant acting on her own behalf

Heard: September 11 and 12, 2017

Decision Rendered: December 4, 2017

Introduction

[1] I heard the matter of Ms. Margorzata Jani Strang on September 11 and 12, 2017 and she is before the court for my decision.

[2] Ms. Strang's case comes before the court because she faces three charges that occurred on November 5, 2015 at approximately 8:00 a.m.

[3] The first charge is careless driving of a motor vehicle without due care and attention in the City of Toronto, which occurred on Lakeshore Boulevard East at Northern Dancer Boulevard, contrary to Article 130 of the Ontario Highway Traffic Act.

[4] Furthermore, you are charged with committing the offence of being the owner of a motor vehicle that was involved in an accident on Lakeshore Boulevard East in the City of Toronto, having failed to remain or immediately return to the scene of the accident, contrary to Article 200, subsection 1, paragraph (a) of the Ontario Highway Traffic Act.

[5] Additionally, you face a third charge of committing the offence of, without reasonable care, making a false statement in an application, specifically a collision report by self-declaration as required, at 39 Howden Street in the City of Toronto, contrary to Article 9, subsection 1 of the Ontario Highway Traffic Act.

[6] The wording of Article 130 of the Highway Traffic Act reads as follows:

Whoever drives a motor vehicle or streetcar on a public road without exercising the necessary prudence and attention or without reasonably considering other persons travelling on the public road is guilty of careless driving and liable, upon conviction, to a fine of not less than $400 and not more than $2,000 and imprisonment for a maximum of six months, or either of these penalties alone. Furthermore, his or her driver's license or vehicle registration certificate may be suspended for a maximum period of two years. 2009, c. 5, s. 41

[7] Wording of Article 200 on the obligation of a person responsible for a motor vehicle in case of accident:

200 (1) If an accident occurs on a public road, whoever is in charge of a motor vehicle or streetcar, directly or indirectly involved in the accident:

a) remains at the scene of the accident or immediately returns there;

[8] Penalty

(2) Whoever contravenes this article is guilty of an offence and liable, upon conviction, to a fine of not less than $400 and not more than $2,000 and imprisonment for a maximum of six months, or either of these penalties alone. Furthermore, his or her driver's license or vehicle registration certificate may be suspended for a maximum period of two years. 2009, c. 5, s. 54.

[9] Wording of Article 9 on a false statement, change of name or address and vehicle number erased:

[10] Penalty for false statement or inaccurate information

9 (1) Whoever presents a false or inaccurate document, makes a false statement or includes inaccurate information in or with an application, statement, affidavit or other written or electronic document required by the Ministry or under this Act is guilty of an offence and liable, upon conviction, in addition to any other penalty or sanction to which he or she may be liable, to a fine of not less than $400 and not more than $5,000 and imprisonment for a maximum of 30 days, or either of these penalties alone. Furthermore, his or her driver's license or vehicle registration certificate may be suspended for a maximum of six months. 2008, c. 17, par. 32 (1).

[11] Defence

(1.1) A person is not guilty of an offence under subsection (1) if he or she exercised reasonable diligence to avoid making a false statement or including inaccurate information. 2005, c. 26, Schedule A, s. 2.

Type of Offence and Burden of Proof

[12] The court is satisfied that the three offences, like the majority of regulatory offences, are not absolute liability offences and will not be treated as mens rea offences. From the language of the three offences, the court has decided to treat them as strict liability offences.

[13] Therefore, these offences place the burden of proof on the prosecution, which must prove beyond a reasonable doubt that the defendant committed the act of which she is accused. However, they allow the defendant to present a defence by demonstrating on a balance of probabilities that she took all precautions to avoid the act in question or that she reasonably believed in a state of facts that did not exist, which, if it had existed, would have rendered the act innocent.

Crown's Evidence

[14] The Court heard evidence from three Crown witnesses. These are the testimony of the accident victim, Mr. Matthew Cassell, a civilian witness named Ms. Susan LeClerc, and then Police Officer Eldon Howard. Therefore, I will summarize Mr. Cassell's testimony as follows:

[15] Mr. Cassell testified that he remembers November 5, 2015 because it is his birthday. He explained to me that he was driving on Queen Street East heading west, where there was construction work. This resulted, according to him, in the road being reduced to a single lane and traffic being forced to drive on it.

[16] Additionally, Mr. Cassell testified that the defendant's car came right up against his car and swerved towards him. Therefore, he was pushed, according to him, into the traffic coming in the opposite direction on Queen Street and he was forced to honk and brake to position himself behind the defendant's car.

[17] Mr. Cassell further testified that he continued on Queen Street, then turned left on Woodbine Street which then becomes Lakeshore. He said he was driving in the right lane and the defendant in the left lane and that he noticed she was coming into his lane and appeared to have a digital camera. Therefore, she continued to approach his lane and he was forced to brake another time to avoid her and she struck the left side of his car with the right rear of hers, which pushed him onto the sidewalk.

[18] Mr. Cassell testified that he stopped his vehicle and the defendant returned to the road and continued driving. Furthermore, a witness named Susan LeClerc stopped behind his car, with whom he exchanged information for 10 to 15 minutes.

[19] Regarding his car, he testified that he was driving a 2007 black Jeep Cherokee heading west and the defendant was driving a blue Mitsubishi. Moreover, he identified her in court.

[20] Furthermore, Mr. Cassell added that the defendant did not stop, she did not get out of her car and she did not return to the scene of the accident. He then testified that he called the police who told him to go to the Collision Reporting Centre and call his insurance company.

[21] He then testified that he went to the Collision Reporting Centre on November 6, 2015 in the morning to give an account of the accident and a person came out with him to take photos of his car.

[22] Moreover, the court had a copy of his accident report which was made at the Collision Reporting Centre located at 39 Howden Street in Scarborough as evidence number one.

[23] During his cross-examination, Mr. Cassell testified that the accident occurred around 8:15 to 8:30 a.m. and that he did not flee or leave the scene of the accident. Regarding the question of whether the defendant stopped, he reiterated that he did not see her stop after the accident.

[24] As a result of the Court's request for clarification, Mr. Cassell explained that Queen Street had two lanes heading west that merged into a single lane due to construction and that became two lanes before turning left on Woodbine Street. Additionally, he clarified that he had braked twice to avoid [1] the defendant, the first time on Queen Street and then on Lakeshore just before the collision.

[25] The court heard the testimony of Ms. Susan LeClerc. A civilian witness who was behind the defendant's car. I summarize her testimony as follows:

[26] Ms. LeClerc testified that she was going to work that morning of November 5, 2015 and was driving on Queen Street East heading west. She told the court that near Elmer Avenue, she noticed that a black sport utility vehicle (SUV) driven by Mr. Cassell was in front of her as well as a blue car that was in the right lane next to her.

[27] Ms. LeClerc explained to the court that the lane on Queen Street narrowed due to construction into a single lane and that the blue car was aggressive in trying to go in front of the black SUV to pass it and that the driver of the latter allowed it to move ahead of him.

[28] She also testified that a police officer was at the end of Queen Street and Elmer and that the person driving the blue car stopped and began shouting at him. This caused the workers to stop to watch the person shouting at the police officer and the latter signaled him to continue.

[29] Additionally, Ms. LeClerc told the Court that near the fire station, just before Woodbine Street, the blue car was in front of her. Moreover, she explained to the court that she stopped in the middle of the street and did not understand why the person in that car was agitated and enraged. Therefore, she activated her horn for her to move forward.

[30] Furthermore, she testified that she followed the blue car to turn onto Woodbine and that she was in the left lane and the driver of the blue car went next to the SUV and was making a very agitated hand gesture at the foot of Woodbine Street when the latter was making a curve to become Lakeshore.

[31] Ms. LeClerc explained that in completing the turn onto the curve, the blue car turned slightly and struck the black car. According to her and I quote "I thought I was watching a movie".

[32] Furthermore, she testified that we moved forward and the blue car struck the black car again. According to Ms. LeClerc, the side of the blue car struck the front part of the SUV which caused the front and rear tires to be lifted by the impact and the blue car went onto the sidewalk.

[33] Then she told the Court that the blue car continued without stopping and she opened her window and asked Mr. Cassell if he was okay. Ms. LeClerc testified that Mr. Cassell asked her to stop and that she agreed to provide him with her information.

[34] According to Ms. LeClerc, she was shocked by what she saw and that it was completely bizarre. She added that the person driving the blue car did not stop and did not return to the scene of the accident. Then Ms. LeClerc explained that she had given testimony to a police officer who had called her.

[35] During her cross-examination by the defence and regarding the question of what happened on Queen Street, Ms. LeClerc testified that before the defendant stopped in front of the police officer, she tried in an aggressive manner to enter the left lane and pass in front of the SUV.

[36] Regarding the question of what happened when Mr. Cassell turned left on Woodbine Street, the independent witness stated that she saw the person driving the blue car aggressively wave her hand at the black car and then she saw the blue car strike the black car and she did the same thing again.

[37] When asked if she saw Mr. Cassell flee the scene of the accident, Ms. LeClerc testified that this is not true and regarding the question of whether she saw Ms. Strang stop after the accident, she answered that no, this is not true and that the blue car did not stop.

[38] Furthermore, Ms. LeClerc added that the black car stopped after the accident and that she stopped her car in front of Mr. Cassell's black car which had stopped and that she left when the police took time to arrive.

[39] The Court heard the testimony of Police Officer Mr. Eldon Howard and I summarize it as follows:

[40] Police Officer Howard testified that he has worked for the Toronto Police Service for nearly 32 years, of which nearly 14 years at the East Collision Reporting Centre located at 39 Howden Street and where he was assigned on November 5, 2015.

[41] Furthermore, he explained to the court that he works in the office to investigate and follow up on accident reports. Furthermore, he testified that he had received two reports for his investigation regarding the accident that occurred on November 5 on Lakeshore Boulevard East-heading west at Northern Dancer Boulevard.

[42] Additionally, the Officer testified that the first report from Ms. Strang which was accepted as evidence number II and which concerned the accident of her car on November 5, 2015 which occurred around 7:55 a.m.

[43] Police Officer Howard told the court that Ms. Strang indicated that she was driving a 2015 Mitsubishi car, blue in colour and which had a license plate BXBM411. Furthermore, she provided the license plate of the other car involved in this accident which was a black Jeep, with the following license plate: BXZZ273.

[44] Then Officer Howard testified that on page 2 of his report, Ms. Strang made a statement and a drawing of what happened and that the driver of the black Jeep did not stop at the scene of the accident.

[45] Furthermore, he added that Ms. Strang submitted a supplementary report indicating that the driver of the Jeep failed to remain at the scene of the accident. He further stated that the report contained a statement indicating that it is a criminal offence to report false statements and that it was signed by Ms. Strang.

[46] Then Officer Howard testified that he received a second report of this accident prepared by Matthew Cassell who was driving the 2007 black Jeep Cherokee and whose license plate is BXZZ273. This report was introduced as evidence number 2.

[47] The police officer told the court that he had read both reports as well as the information from Susan LeClerc, an independent witness, with whom he discussed by telephone. Moreover, according to him, she sent him a report describing what happened.

[48] Police Officer Howard testified that he found that Ms. LeClerc provided credible, clear and concise evidence.

[49] Furthermore, he testified that he saw the photos taken at the Collision Reporting Centre (evidence number 3) and as a result, he had sufficient evidence to support the three charges against Ms. Strang, namely careless driving, failure to remain at the scene of the accident and providing false information.

[50] During his cross-examination, Ms. Strang asked Officer Howard if the collision reports were adequate and his answer was yes; the reports are adequate.

[51] When asked by the defence about how many years of experience Officer Howard has in Collision Reporting Centres, he replied that he had 14 years in this Centre.

[52] Regarding whether it was Mr. Cassell who struck Ms. Strang's car, Officer Howard testified that there were two impacts and that it was Ms. Strang's car that left its lane and struck Mr. Cassell's vehicle. Therefore, his car went onto the sidewalk and she then left without stopping.

Defence Evidence

[53] On the defence side, the court heard the testimony of Ms. Margorzata Strang who was the driver of the Mitsubishi car. I summarize her testimony as follows:

[54] First, Ms. Strang wanted to introduce a statement from Maria Jonasik. According to her, this three-line statement is from her witness who could not be present. Moreover, this statement is not dated nor authenticated.

[55] After hearing the submission of the prosecution and that of Ms. Strang, I decided that this statement is hearsay and could not be admitted as admissible evidence because it is not dated nor certified.

[56] Furthermore, this document is not sworn, nor legally authenticated by a notary, lawyer or commissioner of oaths. Additionally, Ms. Strang indicated in her report regarding question number 20 whether she had spoken to a witness and she checked the box indicating that she had not spoken to any witness.

[57] Therefore, I decided to accept this document as defence evidence number 4 simply to advance the proceedings of the trial of a self-represented defendant for whom the Court has given considerable latitude.

[58] Ms. Strang testified that on November 5, 2015 around 8:00 to 8:15 a.m., she was driving her car to work and that there was construction in front of her on Queen Street East. She explained that the street narrows to a single lane and that Mr. Cassell's black car was behind her. According to her, Mr. Cassell opened his window, honked and had aggressive behaviour towards her.

[59] Then she testified that she stopped for the police officer who asked her to let Mr. Cassell pass on Kenilworth Avenue and Queen Street. Furthermore, she told the court that she continued to turn left on Queen Street and Woodbine where Mr. Cassell was waiting for her after the intersection.

[60] Ms. Strang testified that Mr. Cassell began to follow her, changing lanes several times without signaling and without letting her drive. Furthermore, she explained that as she approached the second red light in the pedestrian area she stopped and so did Mr. Cassell.

[61] Additionally, she testified that when the green light came on, Cassell changed his lane by crossing into her lane and striking her from behind. She added that her car is light and Mr. Cassell's is large, which caused her to lose control and cross to the right.

[62] She added that Mr. Cassell was driving at approximately 50 to 60 km/h and that she thinks the speed limit is 40 km/h. Then she told the court that the accident occurred at Winners Crescent and Lakeshore Boulevard and that she called the police who asked her to make a report at the Collision Reporting Centre.

[63] Furthermore, Ms. Strang presented photos as evidence number 1. They were marked A, B, C, D, E and F. Photos A and B showed Mr. Cassell's black car stopped, photo C showed the construction on Queen Street East and photos E and F showed her blue car and the location of the damage suffered.

[64] During her cross-examination, the prosecution asked her if she made a complaint or had a police report about Mr. Cassell's harassment of her, she confirmed that there was no report on this matter.

[65] Regarding the question of whether Mr. Cassell fled the scene of the accident, the prosecution asked her how she could take a photo of his car stopped if he had fled? Ms. Strang replied that Mr. Cassell waited for her on Woodbine Street, followed her and harassed her and that she took the phone and that she lost control; however, without giving a precise and clear answer to this question.

[66] When asked by the prosecution if she was driving when she was on the phone, Ms. Strang answered in the negative. However, regarding her report at the Collision Reporting Centre and when asked that it was her signature on it, she confirmed that it was hers.

Analysis of Evidence

[67] In her submission, Ms. Strang argues that she was driving with care and that during 26 years of experience, she has never had an accident. She explained that it was Mr. Cassell who crossed the line and struck her.

[68] Then she argued that she remained at the scene of the accident and that Ms. LeClerc's car was in front of her as well as Mr. Cassell's. She added that Ms. LeClerc and Mr. Cassell provided false testimony.

[69] Additionally, she emphasized that her testimony was truthful and that she did not make a false statement in her report.

[70] In her submission, the prosecution argued that all elements of the three charges have been proven beyond a reasonable doubt and that Mr. Cassell's testimony was corroborated by Ms. LeClerc who was behind Ms. Strang's blue car and who saw her come into the lane and strike Mr. Cassell's car. Additionally, she saw Ms. Strang's car flee the scene of the accident.

[71] Furthermore, the prosecution argues that Police Officer Howard who has approximately 32 years of experience received both collision reports and spoke with the independent witness, Ms. LeClerc, and decided to lay charges against Ms. Strang.

[72] Additionally, the prosecution argues that Ms. Strang's evidence lacks relevance and that despite the fact that her car was damaged, this does not contradict the testimony of Mr. Cassell and Ms. LeClerc that she caused the accident and fled. Furthermore, the prosecution argues that Ms. Strang's evidence contradicts that of the two witnesses and that Officer Howard decided to charge her with false statement.

[73] The Court has identified the following issues in dispute:

1. Has the prosecution proven the offence of careless driving, failure to remain at the scene of the accident and providing a false statement beyond a reasonable doubt?

2. Has the defendant presented a defence and exercised reasonable diligence?

[74] To clarify the issues in dispute and as Ms. Strang denied, among other things, that she struck Mr. Cassell, that she fled the scene of the accident and that she provided a false statement in her accident report, an examination of the evidence before the court is necessary in order to determine whether or not she committed this offence of careless driving.

[75] Furthermore, the court will examine the admissible evidence to determine whether Ms. Strang fled or did not flee the scene of the accident and then to determine whether she made or did not make a false statement in her assertion that she did not flee the scene of the accident, or that it was Mr. Cassell who did not remain at the scene of the accident.

[76] In this situation where conflicting evidence has been presented, it is incumbent upon the court to refer to the decision of the Supreme Court of Canada in R. v. W. (D), [1991] 3 S.C.C. 521, in which Justice Corey established the credibility test as follows:

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

2. Second, if you do not believe the testimony of the accused, but if you have a reasonable doubt, you must acquit.

3. Third, even if you have no doubt as a result of the testimony of the accused, you must ask yourself whether, based on the evidence you accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused.

[77] In terms of credibility, the court finds that, on one hand, Ms. Strang, Mr. Cassell, Ms. LeClerc and Police Officer Howard did their best to tell the truth about what they saw and what happened regarding the accident of November 5, 2015.

[78] For the court, I find Mr. Cassell's testimony precise, clear and credible. He explained to me clearly what happened on Queen Street and he clarified what happened before and after the accident. He identified the defendant in court and answered directly and without hesitation to her questions.

[79] Additionally, Mr. Cassell described to the Court how the defendant's driving on Queen Street pushed him towards the line of the opposite direction of traffic. Furthermore, he described to me how Ms. Strang left her lane on Lakeshore and that he braked twice to avoid the collision and that she returned without stopping at the scene of the accident.

[80] Regarding the testimony of Ms. Susan LeClerc, I share the opinion of Police Officer Howard because I find that she presented detailed, clear, precise and to-the-point testimony. She had the advantage of being behind Mr. Cassell's car and Ms. Strang's and having an overview of what happened that morning in front of her on Queen Street, then on Woodbine Street and before and after the collision.

[81] Ms. LeClerc described how the defendant was driving in a bizarre manner and making agitated and aggressive hand gestures. Then she described how Ms. Strang's blue car left its lane to strike Mr. Cassell's car, not just once, but twice. According to her, she described her driving as if she were watching a movie.

[82] Furthermore, Ms. LeClerc testified that she shared her information with Mr. Cassell and that she remained at the scene of the accident with him before leaving for work and that the defendant did not stop her car and that she left the scene.

[83] Regarding the testimony of Officer Howard, I find it clear, credible and concise. He is a police officer with considerable experience as a police officer and as an accident investigator. He testified how he read both collision reports, that he spoke with the independent witness and that he saw the photos and that he had sufficient evidence to support the charges before the court against Ms. Strang.

[84] On the other hand, I find Ms. Strang's testimony problematic, often inconsistent, even incoherent and even contradictory. Moreover, the court finds it difficult to accept her evidence regarding the fact that she remained at the scene of the collision. I cannot understand how someone who remained at the scene of an accident can take a photo of Mr. Cassell's car that was stopped.

[85] Furthermore, when this question was asked of her by the prosecution, Ms. Strang repeated how Mr. Cassell was very aggressive, threatened her and that he harassed her. She added how he began to follow her without letting her drive and that he was driving left and right. All of this without answering directly and clearly to this important question.

[86] Regarding the fact that Ms. Strang testified that she had taken the phone while driving, the prosecution asked her if she was driving when she was on the phone, she answered no. However, the court heard from Mr. Cassell that she had a camera in her hand and furthermore she presented photos of Mr. Cassell's car that was stopped.

[87] Therefore, I find that if Ms. Strang remained at the scene of the accident, she could have taken other photos close to Mr. Cassell's car, the damage to her car and she could have exchanged information with him about insurance, driver's license, address, etc. Therefore, I accept the evidence that Ms. Strang fled the scene of the collision.

[88] Regarding careless driving and in order to prove the actus reus of this offence, the Crown must prove the following:

I Careless Driving:

1. Did the defendant drive her blue 2015 Mitsubishi car on (a public road) the road?

2. a) without exercising the necessary prudence and attention or

b) without reasonably considering other persons travelling on the public road

3. Having been proven through the details of her driving or through circumstantial evidence or direct evidence.

[89] The court is satisfied that Ms. Strang was the driver of the blue 2015 Mitsubishi car with the license plate number BXBM411. This evidence is not contested by Ms. Strang and she was identified in court by Mr. Cassell.

[90] Furthermore, the court accepts the evidence presented by Mr. Cassell who detailed the actions of Ms. Strang's driving on Queen Street and then on Woodbine Street and Lakeshore. They show that Ms. Strang drove her car in a careless manner without exercising the necessary prudence and attention. These actions were corroborated by Ms. LeClerc, an independent witness, who was able to clearly see, among other things, how Ms. Strang's car left its lane and that she struck Mr. Cassell's car twice.

[91] For the court, a reasonable person would have acted, in the circumstances, differently from the defendant. A reasonable person would not have changed lanes without ensuring that she would not touch another vehicle that was driving in her straight lane. A reasonable person does not change lanes except by ensuring that she pays attention to it and is careful with respect to her environment, especially when one knows that a car is next to hers.

[92] Additionally, a reasonable person would not drive her car as described in the testimony of Mr. Cassell and Ms. LeClerc, among other things, by making agitated and aggressive hand gestures or by using a telephone device on the road.

[93] Furthermore, the court accepts the evidence that Ms. Strang's car struck the front left side of Mr. Cassell's car when she swerved into the right lane occupied by the black Jeep Cherokee.

[94] Additionally, I emphasize that the actus reus in this matter is not the speed of Mr. Cassell's car of 50 or 60 km/h or the collision between Ms. Strang's car and Mr. Cassell's, but that Ms. Strang committed, taking into consideration all the evidence and circumstances, the offence of careless driving.

[95] Regarding the offence of making a false statement in an application, when Ms. Strang presented herself at the Collision Reporting Centre located at 39 Howden Street and she submitted her collision report by self-declaration as required by law, I accept the evidence presented by Ms. Strang and Police Officer Howard.

[96] I accept the evidence of Ms. Strang that she presented herself at the Collision Reporting Centre on November 5, 2015 and that she signed her report which was entered as evidence number two. I accept that this report contains a warning to any person who provides a false statement.

[97] I accept the evidence that Ms. Strang denied in court and in her report that she fled the scene of the accident, rather she stated before the court and in her report that it was Mr. Cassell who did not remain at the scene of the collision.

[98] Therefore, I accept the evidence of Ms. Susan LeClerc, the independent witness and the evidence of Mr. Cassell that the latter remained at the scene of the accident and it was, rather, Ms. Strang who fled the scene of the accident. Furthermore, the court accepts the evidence of Officer Howard that Ms. Strang provided inaccurate information and made a false statement in her report.

[99] Additionally, I accept that Ms. Strang did not exercise reasonable diligence to avoid making a false statement or including inaccurate information.

Decision

[100] Having carefully listened to and reviewed all the evidence of the witnesses and the exhibits, having considered all the facts present and the issues in dispute that were addressed by the prosecution, the Court accepts that the prosecution has proven beyond a reasonable doubt the actus reus of the offence of careless driving, failure to remain or immediately return to the scene of the accident and that of making a false statement.

[101] Ms. Margorzata Strang, taking into account all the circumstances, the court is satisfied that you have not demonstrated, on a balance of probabilities, that you exercised reasonable diligence in your driving to avoid the collision with Mr. Cassell's car or to make a false statement or include inaccurate information.

[102] I find you guilty of the three offences before the court and I record a conviction against you.