Ontario Court of Justice

Date: 2019-05-10

Court File No.: Newmarket 4960-81464958

Between:

Appellant

— AND —

THE REGIONAL MUNICIPALITY OF YORK

Respondent

Provincial Offence Appeal

Heard: May 10, 2019

Released: May 10, 2019

Counsel:

• Ms. V. Pankou, counsel for the Respondent
• Mr. P. Swales, agent for the Appellant

KENKEL J.:

[1] On March 5th, 2018 Mr. Palmieri was convicted at trial of Careless Driving contrary to s. 130 Highway Traffic Act 1990 c H8.

[2] The Notice of Appeal and the submissions of the parties identify three issues:

• The Justice of the Peace found there was a high rate of speed but there was no evidence to support that finding.
• The Justice of the Peace failed to apply the principles set out in R v WD, [1991] SCJ No 26.
• The court erred in law in finding that the accused's driving was without "reasonable consideration" for other people on the roadway and therefore the accused was not guilty of careless driving.

[3] There was direct evidence from the officer as to speed. The court was entitled to accept the officer's observation in that regard. In any event the court didn't rely on speeding as a circumstance showing a lack of due care or attention. (p. 21)

[4] The Justice of the Peace acknowledged that WD applied. The court accepted the officer's evidence that the accused made multiple, unsafe lane changes and gave reasons for doing so. (p. 21) The court rejected the accused's evidence regarding that driving for the same reasons. The court then indicated that there was no reasonable doubt remaining. (p. 21) While the circumstances of a busy provincial offence court do not always allow for a formal recitation of the WD formula, I'm satisfied that the Justice of the Peace properly applied the concept of reasonable doubt.

[5] Section 130 prohibits operation of a vehicle without due care and attention or without reasonable consideration for others using the highway. The evidence which the Justice of the Peace accepted showed the accused's vehicle approached a Kia to within a car length on a 100 km/hr highway as it passed the police car then suddenly switched to the middle lane. The accused then sped up and cut abruptly in front of the Kia. In doing so it nearly collided with a black pickup truck. After that the accused's vehicle weaved back and forth between lanes one and two. The evidence accepted by the court plainly breached s. 130. The appellant has failed to show an error of law.

[6] The appeal is dismissed.

Released: May 10, 2019

Justice Joseph F. Kenkel