Court Information

Court: Ontario Court of Justice

Court File No.: Central East Region: Oshawa Courthouse

POA Appeal No.: #2811-999-00-53036112-00

Date: 2018-07-12

Parties

Between:

Her Majesty the Queen Respondent

— AND —

Richard Holton Appellant

Judicial Officer

Before: Justice Peter C. West

Heard on: April 25, 2018 and July 12, 2018

Reasons for Judgment Released: July 12, 2018

Counsel

Mr. P. Alexiu — Agent for the Appellant

Ms. V. Oliveira — Provincial Prosecutor for the Respondent

Decision

WEST J.:

Introduction

[1] This is an appeal from the conviction registered by the learned Justice of the Peace, M. Coopersmith on August 14, 2017 respecting a charge under s. 139(1), failing to yield to oncoming traffic from a driveway, of the Ontario Highway Traffic Act.

[2] This matter was proceeded by way of a Part I certificate of offence, under the Provincial Offences Act (POA) in that the investigating officer, P.C. Phillip Chen, issued the appellant a ticket. Consequently, this appeal is governed by ss. 135 and 136 of the POA. The scope of an appeal under s. 135 and 136 is broad. Section 136(2) states that such appeals are to be conducted by means of a review, s. 136(3) sets out the appeal court's broad powers of review. An appeal judge is entitled "to come to his [her] own conclusion on all the evidence" (see R. v. Michaud, 2015 ONCA 585, [2015] O.J. No. 4540 (C.A.), at paras. 45-49, 54, 56).

[3] The Ontario Court of Appeal adopted, with approval, Justice Duncan's decision in R. v. Gill, [2003] O.J. No. 4761 (OCJ), at para. 11, which held the legislature clearly intended Part I appeals to be conducted as robust reviews, so that deference to the trial judge is limited to credibility findings:

I am of the view that I must review the record before me and reach my own conclusion on the issue. It is not a matter of deferring to the trial justice's conclusion and intervening only if I conclude that her decision was unreasonable. To approach it in that way would be to effectively transpose the Part III provisions to Part I and II appeals when the legislature took pains to distinguish between the two. However, where findings of credibility are in issue, I should accept the trial justice's findings unless they are unreasonable.

[4] A similar observation was made by Justice Hearn in R. v. Duma, 2012 ONCJ 94, [2012] O.J. No. 840 (OCJ), where he held:

The case law sets out the broad scope of the jurisdiction of the appeal court when dealing with appeals under Parts I and II of the Act and differentiates the manner of dealing with those appeals from appeals under Part III. In dealing with appeals under s. 135 the court is not limited as to when it may intervene. Specifically, the court is not required to find that the trial judgment was unreasonable, unsupportable or erroneous in law or indeed that the sentence imposed at trial was unfit, unreasonable or erroneous in principle. All of which are relevant to the determination of Part III appeals but not appeals under Parts I and II.

[5] Therefore the assessment of the evidence is at the core of the appeal judge's function under Part I of the POA.

[6] I want to thank Ms. Oliveira and Mr. Alexiu for their thorough and detailed written factums in respect of this matter, which were very helpful in addressing the factual and legal issues on this appeal.

Evidence at Trial

[7] On August 18, 2016, Rahu Kathiravelu was operating his motorcycle travelling from east to west on Achilles Road towards Salem Road. There was a transport truck parked on right side of Achilles Rd. (north side), east of the driveway into the Infiniti dealership. It was taking up half of the westbound lane. As a result of where this transport truck was parked, partly on the north shoulder and partly on half of the westbound lane Mr. Kathiravelu was driving his motorcycle in the middle of the road. The truck was unloading cars onto Achilles Road. There was also another truck parked on the other side of Achilles Road (south side). Mr. Kathiravelu estimated his speed to be 30 km/h as he came upon the tractor trailer.

[8] He was only able to see the driveway after he passed the transport truck unloading the cars. He was unable to see the driveway into the Infiniti dealership until he got to the front of the transport. Salem Road was about 200 metres west of this driveway. As he was approaching the front end of the truck he testified he observed a car coming from the Infiniti dealership's driveway fast. The first time he saw the SUV was when it was in front of the cab to the tractor trailer. The car hit his motorcycle. The car was more than half way past the truck. There was no time for him to think or react. He believed it was a black SUV.

[9] He spoke to driver of SUV and asked "Why did you hit me" and the driver (Mr. Holton) said he didn't see him. Mr. Kathiravelu received a broken leg and scraped elbow and shoulder as a result of the accident.

[10] Mr. Kathiravelu agreed Achilles can become quite narrow as result of trucks parked on the shoulder, especially if they are on both sides of the roadway. The truck on the other side of Achilles Rd. was a straight truck. These two trucks were taking up the majority of the roadway. It was his view no vehicles should be allowed to park on the roadway where they were parked. He works at the Loblaws warehouse at the eastern end of Achilles. The distance from his work to the back end of the transport truck parked on Achilles would be about a kilometre. The two trucks were taking up most of the roadway out in front of the Infiniti dealership.

[11] A video, the surveillance video from the Infiniti dealership (Ex 1), was attempted to be shown to Mr. Kathiravelu but he did not wish to see this video and as a result it was not shown to him.

[12] P.C. Phillip Chen was dispatched to investigate an accident involving a motor vehicle and a motorcycle and he arrived on scene at 12:24 p.m. There was a white straight truck parked on the south side of Achilles, facing eastbound. The motorcycle had slid underneath this truck when the front of the motorcycle and the Honda CVR collided. P.C. Chen did not recall seeing a transport truck unloading vehicles just east of the Infiniti dealership driveway.

[13] PC Chen obtained a statement from Mr. Holton, who said he was making a left turn out of driveway of the Infiniti dealership onto Achilles Rd. to go eastbound. Mr. Holton told the officer he stopped, looked in both directions before pulling out onto the roadway and seeing no other vehicles he pulled out and he struck the motorcycle travelling westbound on Achilles. P.C. Chen charged Mr. Holton with fail to yield. P.C. Chen conceded he likely prepared his notes back at the police station sometime after his investigation was complete. The officer did not check to see if there was any surveillance video cameras in front of the dealership.

[14] Mr. Holton testified on his own behalf. He was employed at Infiniti at the time of the accident and is still employed there as a salesman. He was taking the Honda CRV for test drive as its owner was trading it in for an Infiniti. He went to the dealership's exit. He waited and looked around a large transport that was parked in front of the Infiniti dealership. This transport was blocking a portion of the driveway. He planned to make a left turn and drive down Achilles Rd. for the test drive. Mr. Holton testified he inched out to make sure there was no oncoming traffic, he looked in both directions and proceeded to make his left turn. He was making the left hand turn to go to the dead end of Achilles Rd. It was difficult to see around transport truck and he was inching out. He was not going more than 5 km/hr. He stopped as there was another vehicle that made a right-hand turn into the driveway of the Infiniti dealership. He was proceeding slowly as it was difficult to see around the transport.

[15] Mr. Holton testified he made the left hand turn and then all of a sudden there was a blur across the front of his car and the front of the Honda CRV collided with the front of the motorcycle. The motorcycle hit the right side bumper of the CRV. He did not have any opportunity to avoid the collision. Mr. Holton testified there was a surveillance video camera looking from the Infiniti dealership towards the entrance/exit driveway onto Achilles Rd.

[16] Mr. Holton testified that Endras Infiniti is the third car dealership east of the traffic lights at Salem Road and Achilles Road. At the east end of Achilles Rd. there is a truck distribution warehouse and Achilles Rd. ends. He was turning left to test drive the CRV to the dead end of Achilles Rd. and then back to the dealership.

[17] The surveillance video was played in court. Mr. Holton testified the video accurately depicted his actions. It was Mr. Holton's view the motorcycle was travelling fast but was not able to provide a guestimate. The video is a stop action video which records each second frame-by-frame.

[18] This transport truck can be seen on the video and it is blocking about six to eight feet of the east side of the driveway into the Endras Infiniti dealership. It is a boxed semi-trailer with a tractor unit/cab with what appears to be a sleeping area. Directly across from the Infiniti driveway entrance on the south side of Achilles Rd. is another entrance to a driveway that accesses a couple of large industrial buildings. The white straight truck is parked at the west side of this entrance on the south side of Achilles Rd.

[19] At the commencement of the video there are two vehicles exiting the Infiniti driveway, a dark coloured sedan, which is followed by a white van. Mr. Holton pulls up behind the white van as a tractor trailer drove westbound on Achilles, followed by an SUV, another tractor trailer and then a straight truck. The dark coloured sedan turned right onto Achilles after the SUV and the white van turned right onto Achilles after the straight truck. Mr. Holton can be seen with his left turn signal on, inching out onto Achilles, in the western portion of the driveway. The CRV appears to be moving to a point to be able to see past the tractor trailer cab when it stops. A dark Honda car can be seen turning right into the driveway of the Infiniti dealership. This Honda car was coming from the west. Mr. Holton observed the Honda car turning into the Infiniti dealership and he stopped the CRV.

[20] Mr. Holton then moved slowly out onto Achilles Rd. turning left to proceed eastbound. The motorcycle can be seen through some shrubs at the front of the Infiniti dealership property coming westbound on Achilles as it drove past the back of the tractor trailer. The wheels of the motorcycle can be seen travelling westbound under the tractor trailer box and at that same moment in time, Mr. Holton proceeded onto Achilles making his left turn. The right front bumper of the CRV and the front of the motorcycle collided and the motorcycle went down with the rider ending up under the white straight truck. No more than one to one and a half seconds elapsed from when the motorcycle came into view at the back of the tractor trailer until the accident occurred. Mr. Holton can be seen exiting his vehicle and running to the driver of the motorcycle who is on the roadway under the white straight truck.

Position of the Parties

[21] The appellant submits the learned justice of the peace misapplied the principles in R. v. W. (D.), [1991] S.C.J. No. 26, respecting her assessment of the totality of the evidence including the defendant's evidence, the video surveillance evidence and Mr. Kathiravelu's evidence. The defence also argued that the learned justice of the peace misapprehended the evidence of the video surveillance. Finally, the defence submitted the learned justice of the peace committed reversible error by allowing the consequences of the accident to Mr. Kathiravelu to influence her determination of the manner of driving by Mr. Holton.

[22] The provincial prosecutor submitted the learned justice of the peace properly applied the W. (D.) test to the facts of this case. Further, the learned justice of the peace did not misapprehend the evidence of the video surveillance. The respondent argued there was nothing in the learned justice of the peace's reasons for judgment that suggested she allowed the impact of Mr. Kathiravelu's injuries to play any role in her assessment of Mr. Holton's due diligence defence.

[23] Both parties agree on the scope of appeal under Part I proceedings as discussed in R. v. Michaud, supra, at paras. 37-58, referred to above.

Analysis

[24] The parties are agreed s. 139(1) of the HTA is a strict liability offence.

[25] Section 139(1) provides:

Every driver or street car operator entering a highway from a private road or driveway shall yield the right of way to all traffic approaching on the highway so closely that to enter would constitute an immediate hazard.

[26] The prosecution must therefore prove the actus reus of the offence beyond a reasonable doubt. Once this is proven the onus shifts to Mr. Holton to demonstrate on a balance of probabilities that he exercised due diligence or "reasonable care" in making his left turn onto Achilles Road.

[27] The offence provides that a driver entering a highway from a private driveway must yield the right of way to all traffic approaching "so closely that to enter would constitute an immediate hazard." In my view, given Mr. Holton exited a private driveway onto a roadway, in this case making a left turn, he must yield the right of way to any and all traffic approaching "so closely" that to enter would constitute an immediate hazard. The accident occurred as Mr. Holton was making his left turn and from the video he appeared to be approximately halfway or a little more into his left turn. The learned justice of the peace found that the Crown had proven the actus reus beyond a reasonable doubt. As a result of that finding the defence of "due diligence" was available to Mr. Holton to establish on a balance of probabilities.

[28] It is my view this is where the learned justice of the peace fell into error when she addressed the evidence relating to the due diligence defence.

[29] There was a complicating circumstance on the facts of this case, namely, the illegally parked tractor trailer transport truck, which was parked on the north side of Achilles, partly on the shoulder and the westbound lane and blocking about 6 to 8 feet of the east side of the Infiniti driveway. According to Mr. Holton this was an extraordinary circumstance and was not a common occurrence on Achilles Road.

[30] The clear evidence before the learned justice of the peace was that both drivers, Mr. Kathiravelu operating the motorcycle and Mr. Holton driving the CRV, were unable to see any other cars or trucks or motorcycles travelling on Achilles Road because of the parked transport tractor trailer, which according to Mr. Kathiravelu was unloading cars. The back of the tractor trailer was closest to Mr. Kathiravelu as he was driving westbound on Achilles. Mr. Kathiravelu was driving in the middle of the roadway because of the tractor trailer taking up a portion of the westbound lane. Mr. Kathiravelu testified he slowed down because he could not see around the tractor trailer and he estimated his speed at 30 km/h.

[31] Mr. Kathiravelu testified he did not see the driveway into the Infiniti dealership until he was at the front of the cab of the tractor trailer, which was when he also saw the SUV already making its left turn onto Achilles. He testified he was unable to do anything or react in any way to avoid the collision between the SUV and his motorcycle.

[32] Similarly Mr. Holton testified that his view of the westbound lane of Achilles Road, east of the driveway was obscured by the transport truck as well. As a result he was proceeding slowly, looking left and right for traffic travelling on Achilles Road and inching out onto Achilles to be able to see if any traffic was coming westbound. He testified he stopped when he observed a westbound car, which turned right into the Infiniti driveway. He then continued slowly and commenced his left turn.

[33] In addressing the defence of due diligence the learned justice of the peace did not consider the totality of evidence which addressed whether Mr. Holton exercised reasonable care in the circumstances. The learned justice of the peace only addressed the video surveillance evidence when she was discussing the evidence on the issue of whether the prosecutor had proven the actus reus beyond a reasonable doubt. It is my view this evidence was more properly dealt with during her consideration of Mr. Holton's "due diligence" defence. I have set out in detail above, during my discussion of the evidence called during the trial, what can be seen on the video. I agree with Mr. Alexiu that the video surveillance evidence supported and corroborated Mr. Holton's evidence as to the manner of his driving when he exited the driveway onto Achilles.

[34] The video surveillance clearly provided evidence from the perspective of someone standing in front of the Infiniti dealership. However, that is no different if a witness, standing in front of the dealership, provided evidence as to what they observed happen in the moments leading up to the accident occurring. The fact the video is not in "real time," in my view, does not detract from the importance and significance of this evidence and its corroboration of Mr. Holton's manner of driving. The video is not a "series of photos" as described by the learned justice of the peace.

[35] An important piece of evidence that can be observed is the length of time the motorcycle driven by Mr. Kathiravelu takes to travel from the back of the tractor trailer until the collision occurs, between one to one and a half seconds based on the video. This was not referred to by the learned justice of the peace. In my view this was an important piece of evidence provided by the video, which supported Mr. Holton's evidence that the motorcycle appeared as a blur before the collision and he believed it was travelling fast. It was Mr. Holton's evidence that as he inched out onto Achilles Road he could not see any vehicles travelling westbound (it should be noted however, he had been able to see the dark Honda car that turned right from Achilles Road into the Infiniti driveway and as a result he stopped his forward movement). It was as he was completing his left turn onto Achilles that Mr. Holton testified he saw a blur and his right front bumper collided with the front wheel of the motorcycle. Further, it is evident from a careful viewing of the video that Mr. Kathiravelu's motorcycle's speed was not slowing down, rather it was constant as it approached the rear of the tractor trailer and then drove beside the tractor trailer. The motorcycle can be seen through some shrubs and then under the box of the tractor trailer. This evidence, which can be observed and assessed from a careful review of the video, was not referred to or considered by the learned justice of the peace in her assessment of Mr. Holton's defence of "due diligence."

[36] The learned justice of the peace did not consider the weight or significance of the surveillance video when assessing whether Mr. Holton had established on a balance of probabilities his defence of "due diligence." In my view this was a serious error.

[37] In my view a further error by the learned justice of the peace was how she assessed which of the two competing witness' evidence she accepted. After setting out Mr. Holton's evidence relating to his defence of "due diligence" of his taking reasonable care in the circumstances to enter the roadway from a private driveway she indicated the following, at p. 6, lines 12-18 of her reasons for judgment:

You testified that all you saw just before you struck the motorcycle was a blur. Given this testimony from you, I find you could not have known the speed at which the motorcycle was travelling. Hence, I accept Mr. Kathiravelu's evidence that as he was passing the dealership driveway he was slowing as he approached Salem Road where he was going to turn right.

[38] The learned justice of the peace in my opinion fell into palpable error by engaging in a credibility contest between Mr. Holton and Mr. Kathiravelu. In R. v. W. (D.), supra, the Supreme Court held a determination of guilt or innocence must not devolve into a mere credibility contest. The Ontario Court of Appeal in R. v. Hull, [2006] O.J. No. 311 at para. 5 noted:

W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.

[39] The learned justice of the peace ought to have assessed the evidence of Mr. Kathiravelu and Mr. Holton in light of the totality of the evidence, which included and permitted comparing and contrasting the evidence of those witnesses as well as the video surveillance, which captured the manner of driving of Mr. Holton and of Mr. Kathiravelu on his motorcycle. Instead, the learned justice of the peace ignored relevant, cogent and significant evidence, which corroborated Mr. Holton's testimony, when she was assessing his credibility and reliability. A determination of credibility and reliability involves considering all of the evidence in order to arrive at a reasoned determination as to whether a witness' evidence should be rejected or accepted. A trier of fact can accept some, all or none of a witness' evidence. Even if an accused evidence is not accepted in its entirety this does not end the matter pursuant to the W. (D.) test. Further, the learned justice of the peace did not consider the impact of the video evidence on Mr. Kathiravelu's evidence in terms of his speed as he approached the Infiniti driveway, which he was completely unaware of because his view was also obstructed by the tractor trailer. Further, Mr. Kathiravelu's evidence is not completely inconsistent with Mr. Holton's evidence and an acceptance of Mr. Kathiravelu's evidence does not necessarily lead to a rejection of Mr. Holton's evidence.

[40] In a recent leave application before Justice Paciocco in R. v. Morillo, [2018] O.J. No. 3405 (C.A.), in a POA appeal from a conviction respecting a speeding offence under the HTA, which would be an absolute liability offence, Justice Paciocco addressed the issue of credibility contests:

Credibility contests are not properly resolved by choosing one side after carefully giving the other side fair consideration in the context of all of the evidence. They are resolved by ensuring that, even if the evidence inconsistent with guilt is not believed or does not raise a reasonable doubt, no conviction will occur unless the evidence that is accepted proves the guilt of the accused beyond a reasonable doubt. The decision of the Justice of the Peace fails to make that determination. It appears that she found Mr. Morillo guilty because she judged that his evidence was not as reliable as the officer's evidence. This would be a legal error, indeed the very error made in W. (D.) itself.

[41] In granting the leave application Justice Paciocco held:

… the W.(D.) rule is central to the proper conduct of many prosecutions, and it is not without its complexity. This court has yet to affirm the importance of the rule in W.(D.) , in traffic court prosecutions, or to provide direct guidance to Justices of the Peace on its proper application. This case presents a strong record on which to do so, because this ground of appeal is strong. I am satisfied that it is essential in the public interest and for the due administration of justice that leave be granted to accomplish this.

[42] Although the extent and the way in which the W. (D.) test is ultimately applied in POA prosecutions is still to be determined by the Court of Appeal, the learned justice of the peace in this case did not consider the totality of the evidence on the issue of Mr. Holton's defence of "due diligence." I find her rejection of his evidence resulted from a credibility contest as she did not consider the totality of the evidence that was led during the trial. The burden of proof on Mr. Holton was on a balance of probabilities, which is not onerous and it is my view the surveillance video from the Infiniti dealership more than tipped the balance in Mr. Holton's favour.

[43] On the totality of the evidence I find, which I am entitled to do in a Part I appeal, the defence of "due diligence" has been established by Mr. Holton on a balance of probabilities. I am allowing the appeal and registering an acquittal.

[44] I would also like to address the ground of appeal raised by the appellant that the learned justice of the peace's assessment of Mr. Holton's manner of driving was influenced by the consequences to Mr. Kathiravelu as a result of the collision. The learned justice of the peace referred to the serious consequences in two places in her reasons for judgment. The first was at p. 2 where she was outlining the evidence heard during the trial. Obviously, a trial judge should set out the pertinent and relevant facts on the issues raised during a trial. It is my view however, the fact that one of the driver's and their family has been greatly affected by the collision, that this driver suffers from depression, cannot return to work due to his injuries, sees his future greatly impacted and is fearful about getting into a motor vehicle, even more so onto a motorcycle, all of these facts are completely irrelevant to determining the issues that arise on the evidence of this case. Further, on p. 6, when the learned justice of the peace was addressing Mr. Holton's evidence on his defence of "due diligence" the last point she made when she accepted the evidence of Mr. Kathiravelu over Mr. Holton was: "Despite this, you crept out of the driveway and onto the roadway striking Mr. Kathiravelu's motorcycle and causing him significant injuries." While these facts may have some relevance on sentence in terms of aggravating circumstances, they do not add anything to the determination of whether Mr. Holton has established he took all reasonable care in the circumstances.

[45] It is my view the learned justice of the peace erred by improperly placing her focus on the consequences of the accident, which were completely irrelevant to the main issue in this trial, whether Mr. Holton was able to establish the defence of "due diligence." The fact of an accident or of injuries and serious consequences to the other driver were misconceived as having any relevance to that issue. This improper focus by the learned justice of the peace in my view further contributed to her failure to consider the totality of the relevant evidence in assessing whether Mr. Holton established his defence of "due diligence." As I have indicated, on the totality of the evidence "due diligence" has been established and I am allowing the appeal and registering an acquittal.

Released: July 12, 2018

Signed: Justice Peter C. West