Court Information

Ontario Court of Justice

Date: 2018-10-09

Court File No.: 6194782B

In the Matter of: An appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Parties

Between:

Her Majesty the Queen Respondent

— And —

Jacob Charlebois Appellant

Court Details

Before: Justice D.A. Kinsella

Heard on: September 18, 2018

Reasons for Judgment released on: October 9, 2018

Counsel:

• Matthew Collins, counsel for the prosecution
• Jacob Charlebois, on his own behalf

On appeal from: A conviction by Justice of the Peace C. Winchester on May 17, 2018

Overview

[1] Mr. Charlebois was charged with failing to slow down and proceed with caution for an emergency vehicle contrary to section 159(2) of the Highway Traffic Act ("HTA").

[2] The trial took place on May 17, 2018. Mr. Charlebois represented himself at trial.

[3] The prosecution called one witness and Mr. Charlebois testified on his own behalf. After hearing evidence the justice of the peace found Mr. Charlebois guilty, registered a conviction and imposed a fine.

[4] Mr. Charlebois appeals that finding. As at trial, he argues that he should not have been convicted for the following reasons:

i. The officer's testimony was not reliable and could not support a finding of guilt;

ii. The learned Justice of the Peace erred by failing to consider his testimony of what happened; and

iii. The learned Justice of the Peace erred in concluding that he had an obligation to slow down to a speed of five to ten kilometres per hour.

Facts

[5] The facts in this case are relatively straight-forward. Members of the Cornwall Community Police service were conducting a RIDE program at approximately 10:30 pm on September 29, 2017. Two officers had set up their marked cruisers on either side of Pitt Street, a two-lane highway, just beneath the overpass for Highway 401. Constable Wilson testified that both cruisers had their emergency lights activated. He described these as 360-degree red and blue lights which flash consistently once activated. The officers themselves were standing in the middle of the road, on the centre line, and were wearing yellow police safety vests and utilizing flashlights.

[6] Constable Wilson testified that he observed a red car approaching his location travelling northbound on Pitt Street. He testified that the vehicle was not slowing down as it was approaching and so he yelled out. The vehicle did not, according to the officer, change its speed and in fact continued through the RIDE check in its own lane never slowing down. He testified that the vehicle did come to an abrupt stop about five to six car lengths away from the RIDE stop.

[7] There is no dispute that Mr. Charlebois was the driver of that vehicle. Mr. Charlebois testified that he did not know that the police were conducting a RIDE check, as he could not see the officers at first because of the intensity of the lights from their vehicles, which he testified were on each side of the road. He testified that, because he could see the cruisers, he down-shifted to slow his vehicle down and "moved over". He testified that he slowed down to "barely forty kilometres" once he saw the lights. He said that he noticed the officers once he got past their cars so he pulled over and stopped as quickly as possible. While he agreed that the officers were in the middle of the road, he testified that they were standing past the cruisers so he stopped once he saw them.

The Scope of the Appeal

[8] This appeal is pursuant to Section 135 of the Provincial Offences Act. An appeal under this is conducted by means of a review. This means that the appeal court is entitled to conduct a broad-based review with generous allowances to all parties to ensure that the issues are fully and effectively defined and fairly and completely considered, a process referred to as "robust" by the Court of Appeal in R. v. Michaud, 2015 ONCA 585, [2015] O.J. No. 4540.

[9] There are, however, some practical limitations. I adopt the reasoning of Justice Duncan in Regina v. Gill, [2003] O.J. No. 4761 concerning the scope of this review when dealing with issues of credibility, where the court noted that significant deference should be given to the trial justice's findings unless they are unreasonable. I also adopt Justice Duncan's comments at paragraph 10: "it could not have been the intention of the legislature that the Provincial Offences Appeal Court re-try every case. The Act grants a defendant only one trial; it is not a trial run."

Assessing Credibility and Reliability

[10] Mr. Charlebois' two main grounds of appeal relate to the issue of assessing credibility and reliability. He says that the learned justice of the peace erred in relying on the testimony of Constable Wilson. He notes that the officer made some errors in his testimony and asks the court to infer that, since the officer was wrong about the style of his vehicle (it has four doors not two as the officer testified), he cannot be relied on to be accurate about other aspects of his testimony, specifically his testimony that Mr. Charlebois did not slow down as he approached the stopped emergency vehicles. He further submits that the learned justice of the peace failed to fairly consider his testimony.

[11] The purpose of a trial is to determine whether the Crown has proved the guilt of the defendant on the specific charges alleged beyond a reasonable doubt; it is not a "credibility contest". Where there is conflicting evidence about what occurred, it is wrong to decide a criminal case simply by concluding which version of events is preferred. The decisive question is whether, considering the evidence as a whole, the Crown has proved the offence beyond a reasonable doubt.

[12] A trial judge must apply the same standard of scrutiny in her assessment of the accused's evidence and credibility as when considering the evidence and credibility of the Crown's witnesses and evidence including police testimony. There is no presumption of truthfulness applied to police evidence (R. v. Chanmany, 2016 ONCA 576).

[13] Credibility and reliability are not the same. Credibility concerns the veracity of a witness; reliability involves the accuracy of the witness's testimony. Accuracy engages a consideration of the ability of the witness to observe, recall and recount. A witness who is not credible on a point cannot be reliable. The converse, however, is not true. A credible witness can nonetheless be unreliable (R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), at paragraphs 41 & 42).

[14] In R. v. Gagnon, 2006 SCC 17, Bastarache and Abella JJ. made the following statement about assessing credibility and the standard of appellate review for that assessment at para. 20:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[15] Officer Wilson was wrong about the style of Mr. Charlebois' vehicle, testifying that it had two doors when in fact it has four. Constable Wilson also initially testified that the posted speed limit was fifty kilometres per hour, but quickly corrected himself and noted that it was in fact sixty at that location. While not expressly set out in her reasons, it would appear that the learned justice of the peace concluded that these errors or inconsistencies were minor in nature and did not affect the overall reliability of the officer's evidence. This was a finding the court was entitled to make.

[16] It is also clear that the learned justice of the peace did consider Mr. Charlebois' testimony and in fact accepted it. In her reasons, the learned justice of the peace finds that simply slowing down to forty kilometres per hour, as Mr. Charlebois testified he did, was not sufficient to meet the driver's obligations under section 159(2) of the HTA.

Section 159(2) of the Highway Traffic Act

[17] Is that finding reasonable? Mr. Charlebois says it is not. He points to the portion in the learned justice of the peace's reasons where she states: "…you need to slow down a lot more than 40 kilometres an hour even if you were downshifting. You need to crawl through there because you do not know exactly what's going on…If you had really slowed down to something like 10 kilometres or 5 kilometres, you would have seen [the officers]." Mr. Charlebois says the justice of the peace erred in finding that a motorist must slow down to five or ten kilometres upon approaching stopped emergency vehicles.

[18] It is important to note that Justice of the Peace Winchester did not find that, in order to avoid a charge under section 159(2) of the HTA, a driver must as a matter of law slow down to five or ten kilometres per hour. She was simply making a point that, according to the section, a driver approaching stopped emergency vehicles have an obligation to slow down.

[19] Section 159 of the HTA states:

(2) Upon approaching an emergency vehicle with its lamp producing intermittent flashes of red light or red and blue light or a tow truck with its lamp producing intermittent flashes of amber light that is stopped on a highway, the driver of a vehicle travelling on the same side of the highway shall slow down and proceed with caution, having due regard for traffic on and the conditions of the highway and the weather, to ensure that the driver does not collide with the emergency vehicle or tow truck or endanger any person outside of the emergency vehicle or tow truck. 2015, c. 14, s. 47.

[20] The purpose of the law is clear. The law exists to ensure that police, fire, ambulance and other emergency personnel can perform their duties on the highway in the safest possible manner. That safety is achieved by drivers performing the two tasks directed of them in section 159(2); first in slowing down upon approaching stopped emergency vehicles with their lights activated and second by proceeding with caution. How much a vehicle should slow down and with how much caution that vehicle should proceed will depend on traffic, weather, and conditions of the highway.

[21] The uncontroverted evidence in this case is that the police were operating a RIDE program under an overpass on a two-lane highway at night. The lights for their emergency vehicles were clearly visible. The two officers were standing in the middle of the road. Taking his evidence at its best, Mr. Charlebois slowed down to about forty kilometres per hour under circumstances where he found it hard to see because of the brightness of the lights.

[22] It was completely open to the justice of the peace to find as a matter of fact that those actions failed to meet the legal requirement that Mr. Charlebois "slow down and proceed with caution." That finding was reasonable and well-supported by the evidence, including the testimony of Mr. Charlebois.

[23] The appeal therefore is dismissed.

Released: October 9, 2018

Signed: Justice D.A. Kinsella