Court File and Parties

Date: September 30, 2019

File No.: 999 18 18201835

Ontario Court of Justice

In the Matter of the Provincial Offences Act, R.S.O. 1990

Her Majesty the Queen

v.

Vincent Muia

Reasons for Judgment

Hearing Dates: March 1 and April 12, 2019

Judgment Date: September 30, 2019

Parties:

• Mr. S. Davidson, Provincial Prosecutor
• Mr. V. Muia, In Person

Presiding Justice of the Peace: Mary A. Ross Hendriks

Introduction

[1] Mr. Vincent Muia was charged, on or about June 9, 2018, in the City of Toronto, Toronto Region, with six counts, contained in a sworn Information, as follows: start from stopped position not in safety, contrary to s. 142(2) of the Highway Traffic Act, R.S.O. 1990, c.H.S. ("HTA"); fail to provide required information, contrary to s. 200(1)(c) of the HTA; plate not visible, contrary to s.13(2) of the HTA; fail to disclose particulars of insurance, contrary to s.4(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c.C. 25 ("CAIA"); fail to report, contrary to s. 199(1) of the HTA; and drive no insurance, contrary to s. 2(1)(a) of the CAIA.

[2] At the commencement of his trial, the Prosecutor withdrew counts 4 and 6, fail to disclose particulars of insurance and drive no insurance.

[3] Mr. Muia was arraigned on counts 1, 3 and 5, and entered a plea of not guilty to each of these remaining charges.

[4] I held a trial on this matter on March 1 and April 12, 2019. I adjourned the matter to receive transcripts and prepare this written judgment.

Issues

[5] The following issues are relevant to this trial:

(a) Did a collision take place on June 9, 2018, at approximately 2:50 am, near 272 Augusta Avenue, in the City of Toronto?

(b) If yes, has the identity of the driver been established as the defendant, Mr. Muia?

(c) If yes to (a) and (b):

i. Did Mr. Muia start from a stopped position not in safety?

ii. Was his licence plate not visible?

iii. Did he fail to report the accident to the police?

Evidence

Prosecution's Witnesses

[6] The Prosecutor called three witnesses: David Tweneboah; Tarek Kadan; and the Officer in Charge, Police Constable Sylvie Guay.

Mr. David Tweneboah

[7] The Prosecutor called Mr. Tweneboah as his first witness. He testified that on June 9, 2018, he went to a club on Augusta Avenue in the City of Toronto. He was leaving the club, in order to pick up his friends, between approximately 2:45 and 3:00 am. His vehicle was parked on Augusta Avenue, which is a one-way street that runs north and south. He parked it on the left-hand side of this street, which was closest to the club.

[8] Mr. Tweneboah described his vehicle as a 2018 Toyota Camry, white in colour with a black top. He said there was no damage to his vehicle when he parked it on Augusta Avenue, in the City of Toronto, on the date in question.

[9] When he returned to his car, at around 2:45 am, he observed "someone hit my car." He observed this other driver trying to parallel park between his car and someone else's car. He believes that the other parked car was dark in colour, and a larger model, possibly an SUV.

[10] Mr. Tweneboah testified that he was at the front end of his own vehicle, and said, "I saw my car rock". He said that the driver was trying to park behind him. Mr. Tweneboah observed him back up and hit the other car parked behind him.

[11] Mr. Tweneboah said that the driver who hit his vehicle did so by hitting his back bumper, directly in the middle, with the other driver's front bumper. After he saw his car rock, he ran to his vehicle.

[12] He wanted this driver to exit his vehicle, but he observed him reverse his vehicle and hit the other car.

[13] He did not hear any noise when this car hit his motor vehicle. However, he testified that he did hear a noise when it made contact with the other vehicle.

[14] Mr. Tweneboah identified the driver of the vehicle which struck his vehicle as the defendant in court, Mr. Muia.

[15] Mr. Tweneboah confronted Mr. Muia at the time, but at first, he denied hitting his car. He showed him the crack and a couple of scratches. Before Mr. Tweneboah and Mr. Muia exchanged information, another driver asked Mr. Tweneboah if he had seen him hit his car, too, to which he replied that he had. Mr. Tweneboah heard Mr. Muia deny hitting this other vehicle. Mr. Tweneboah also told him that he hit the other car, but he denied it.

[16] They exchanged information, and Mr. Muia wanted to settle this issue outside of making an insurance claim. Mr. Tweneboah testified that he was agreeable to this arrangement, provided that he could show his vehicle to his mechanic. He said that Mr. Muia agreed.

[17] Mr. Tweneboah took a picture of Mr. Muia's Ontario driver's licence and his insurance slip with his cell phone, and Mr. Muia did likewise. The Prosecutor asked Mr. Tweneboah to read Mr. Muia's particulars from his driver's licence into the record, to which Mr. Muia did not object. This included Mr. Muia's date of birth, and his home address of 272 Augusta Avenue, Toronto.

[18] They both took photographs of Mr. Muia's and Mr. Tweneboah's bumpers and licence plates. Mr. Tweneboah identified his photograph of Mr. Muia's licence plate, which was entered as Exhibit 1. In his evidence, Mr. Tweneboah noted the erosion on this licence plate, and testified that some of the letters on it were not clear. For that reason, he also took a photograph of Mr. Muia's other licence plate, which read, "BMXS 343".

[19] Mr. Tweneboah said that he would go to his mechanic. His mechanic advised him that the damage would cost about $1300 to repair because of damage to the rear sensors. Mr. Muia thought that the repair would only cost about $300. Mr. Muia suggested that he report it to his insurance instead.

[20] A few days later, Mr. Tweneboah went to the Collision Reporting Centre and completed an accident report with the police. He used the photographs he had taken to record information on his Self-Reporting Collision Report.

[21] During cross-examination, he was asked by Mr. Muia if he observed him hit his car when he exited the club. His reply was, "I saw my car rock."

[22] During cross-examination, Mr. Muia asked him if he saw him parallel parking, and in doing so, "curving in"? He replied that he came out of the club, saw Mr. Muia's car moving back and forth in the spot, not curving in, trying 4 or 5 times, and then he saw his car rock.

[23] During cross-examination, Mr. Muia asked him if he had denied hitting his car. His response was that he had said to him initially, "excuse me sir, you hit my car", but Mr. Muia denied it, until he showed him the damage, and then he agreed that Mr. Muia said to him, "I'll take responsibility for this."

[24] Mr. Muia suggested to him in cross-examination that Mr. Tweneboah never suggested calling the police, to which he responded that you only have to call the police if injured or if the damage is over $2000, and Mr. Muia again agreed with this response.

[25] Again, in cross-examination, Mr. Muia suggested to him that they had established that Mr. Muia was responsible for this, that they would exchange information, and that he would cover it. Mr. Tweneboah agreed with this statement.

[26] Mr. Muia asked Mr. Tweneboah if he then said, "go get an estimate tomorrow, and if the damage is $300 to $400, I will cover it," and Mr. Tweneboah agreed with this statement, as well.

[27] Mr. Muia asked him if he recalled their conversation, "weeks later", when he did phone him about the cost of repairs, quoted the figure of $1300, and Mr. Muia replied it was too much and to report it to the insurance company. Mr. Tweneboah agreed with this statement, too.

[28] At the end of this cross-examination, the Prosecutor did not have any questions in Redirect.

Mr. Tarek Kadan

[29] Mr. Kadan testified that on June 9, 2018, he was on Augusta Street in Kensington Market, near College and Spadina, in the City of Toronto, past 2:00 am. He was there with his friends, attending a bar, called the "Socialite".

[30] Mr. Kadan was the driver that evening. His vehicle was a red 2009 Hyundai Santa Fe, which is an SUV. He had parked his SUV right in front of this bar, on Augusta Avenue. At the time he parked his vehicle, there was no damage to it.

[31] Mr. Kadan went outside of the bar to smoke, and saw his vehicle shaking. He walked towards his car and realized that someone was trying to park in between the two cars. He described his observations as follows (transcript, p. 31, March 1, 2019):

So, I was smoking outside, and I was basically just looking around, talking to people around, and then I saw my car, so I walked towards it and I see a person who was trying to park. And so, I'm – I'm trying to approach my car to see what happened. And so, that person hits the car in front of me, and so he was trying to park in between two cars, the one in behind and he's the one in front – and there's another person in the front. And so, he hit the person in front as well, and – then he backed up again, and he hit my car for the second time. As soon as I approach, I was trying to look around what happened, and there's a crowd of people who said, is this your car, because I was looking around the car, and I'm, like, yes, it is, so they're, like, he just hit your car twice. So, I turn around, I look also at the corner and it was – it was hit from the corner, right front – front right corner as well, and he's backing up from the front where my licence plate is.

[32] Mr. Kadan identified the defendant, Mr. Muia, in court as being the person who backed up twice into his vehicle.

[33] Mr. Kadan said that at first, Mr. Muia denied hitting his vehicle, but there was a crowd of people who told him that they saw what occurred, including the first witness to this trial. In fact, when Mr. Kadan met Mr. Tweneboah at the scene, each told the other that they had observed Mr. Muia hit the other driver's vehicle.

[34] Mr. Kadan said that Mr. Muia eventually provided him with his information, and he recorded it by taking a photograph of it. He relied on these photographs when he went to the Collision Reporting Centre.

[35] He testified that his vehicle was damaged on the right front corner, where the paint came off, as well as multiple scratches in the same place.

[36] Mr. Kadan took his vehicle to his mechanic, and the estimated cost of repair was at least $1000. He decided not to repair it.

[37] The next day, Mr. Muia refused to admit to damaging his vehicle, although he did admit to having hit it. Mr. Kadan did not contact his own insurer, but he did attend at the Toronto Police Service Collision Reporting Centre the afternoon following the accident.

[38] Mr. Kadan described Mr. Muia's car as being dirty, and he testified that his licence plate was not very visible. He used the zoom function in order to take a photograph of Mr. Muia's licence plate, which he said was BMX 5343. Mr. Kadan then added that he could be mistaken, because there was one digit in the middle that wasn't very clear. He speculated it could be either a 5 or a 3, and then said it was either a 5 or a 6.

[39] During cross-examination, Mr. Muia asked him if it was possible that the photograph he took of his licence plate was difficult to read because he took the picture in the middle of the night. He replied that you can't choose lighting when you need to read a licence plate, and that the plate needs to be visible at any time.

[40] When asked if there had been proper lighting at the time if he thought he could have read his licence plate, he responded that he did not think so. Mr. Kadan added that his phone takes very clear pictures, and if his phone is unable to determine the clarity, then his eyes are unable to do so either.

[41] When asked in cross-examination if he had not seen Mr. Muia in his car, he replied that he did see him. He testified that he saw Mr. Muia, "going back and forth, like three times." (Transcript, March 1, 2019, p. 41).

[42] Mr. Kadan was quite certain that Mr. Muia denied hitting his vehicle when they spoke initially. However, he admitted to it when confronted by both the crowd and David.

[43] Mr. Kadan agreed with the suggestion put to him by Mr. Muia that at this juncture, Mr. Muia said that he had not damaged his vehicle. However, Mr. Kadan at this time told Mr. Muia that he had caused damage to his car, by scratching it.

[44] Mr. Kadan said Mr. Muia provided him with his information, and Mr. Kadan told him that he would obtain an estimate.

[45] The Prosecutor did not have any questions for Redirect.

Police Officer Sylvie Guay

[46] Officer Guay testified that she has been employed by Toronto Police Services since 1988, and that she performs her current duties at the North Collision Reporting Centre, in their Investigations Office.

[47] Officer Guay explained that once a collision has been reported, the TPS wait for the other involved drivers to report, as well. When they do report, they are asked to deal with police officers at the police counter, who obtain their data and enter it into the report. The report is then put aside, until the other involved drivers also attend, at which time, the reports are then matched. Any discrepancies are sent through a police triage process, and then sent to the Investigations Office.

[48] Because of the large volume of collisions in Toronto, this process can take months. In fact, she said that while this accident took place on June 9, 2018, she did not receive it until August, 2018, and that she did not commence her investigation until October 7, 2018.

[49] Officer Guay testified that the report she received regarding this matter indicated that it was a three-car collision.

[50] In this instance, she had two reports on file, one from Mr. Tweneboah, and the other from Mr. Kadan. Both of them indicated that the other party operating a motor vehicle to their collision was Mr. Muia. Mr. Tweneboah's report indicated that Mr. Muia's vehicle was a 2011 Cadillac SUV, bearing Ontario licence plate BMXS 343. He reported damage to his rear bumper, which the police estimated to be valued at approximately $2500. Mr. Kadan's report described Mr. Tweneboah as being the third driver to this collision.

[51] Information received by Officer Guay indicated that both vehicles owned by Mr. Tweneboah and Mr. Kadan had been parked, when they were struck by Mr. Muia, who was attempting to park his vehicle.

[52] Officer Guay estimated the total damage to be at least $2900, which exceeded the threshold at that point in time for a reportable collision, being $2000 to all vehicles involved. As a result, she processed the file, and charged Mr. Muia with starting from a stopped position not in safety. She also had photographs of Mr. Muia's licence plate, which she determined was either dirty or damaged, and its numbers were illegible. She compared his licence plate to her internal databases, and ascertained that his plate was BMXS 343, for which he was also charged.

[53] During cross-examination, Mr. Muia asked her to explain the threshold to report an accident. Officer Guay replied that an accident must be reported if the police value the property damage as being over $2000, there has been personal injury, or damage to municipal property.

[54] Mr. Muia showed her a photograph he took of his licence plate (Exhibit 2). Mr. Muia cross-examined her about the condition of his licence plate, referring to both Exhibits 1 and 2. She said that she would be unable to read his licence plate unless standing very close up to it. She testified that his plate, "would not be visible from any distance" (transcript, April 12, 2019, p. 9); and added that this would be especially true at night. Later in her evidence, she said, "…you cannot make out that plate from any more than three feet – two feet from the vehicle." (transcript, p. 10).

[55] During his cross-examination of her regarding the charge of failing to report the accident, he advised her that the three people involved initially all thought the damages were less than $2000, so he then asked her why some people don't report accidents to the reporting centre. She responded that she had no idea.

[56] They had a further exchange on this same point, and she stipulated that she could not testify as to his state of mind. Since the total damage was valued as being at least $2500, he should have reported it.

[57] Since the TPS could not find a telephone number for Mr. Muia, it sent out a letter by regular mail to his last known address at 272 Augusta Avenue, Toronto, dated June 19, 2018 (Exhibit 3). This letter stated that the TPS was investigating a collision that took place on June 9, 2018, advised him of his duty to report, and directed him to attend the North Collision Reporting Centre. She said that this letter was not returned to the police in the mail. She added that this letter was sent as a courtesy, since the obligation is on the driver to report the accident. Officer Guay testified that the TPS did not receive a reply to this letter, nor had Mr. Muia reported this accident anywhere in Ontario.

[58] Officer Guay processed all of the charges, and the defendant was served with a summons to court.

[59] The Prosecutor did not have any questions for Redirect.

Defence Witness

[60] Mr. Muia did not have any other witnesses to call. He testified on his own behalf.

Vincent Muia

[61] Mr. Muia testified that he has over 50 years of experience as a driver. He admitted that in the past, he has received two other tickets for having a dirty licence plate, which he paid. However, he objects to this charge regarding his plate, because it was based on a photograph that one of the other driver's took in the middle of the night. He maintains that Officer Guay based this charge on "nothing more than a bad picture" (Transcript, April 12, 2019, at p.23).

[62] He relied on his photograph of his licence plate (Exhibit 2). He maintained that the numbers on this plate are legible. He characterized this charge as being a bad decision made by the officer, influenced too much by the first photograph.

[63] He then addressed the charge that he set his motor vehicle in motion before first seeing such movement could be done in safety. His evidence is set out below, verbatim (transcript, April 12, 2019, at pp.25 to 27):

Right. So, in other words, the – the – the implication is there is that I got in the car, and I drove, and giving no thought that I could make this movement in a safe way as to not to cause injury to property or person. Well, what happened there, I'll explain exactly what happened there and then you can decide if that charge is proper. I went to park my car that night in between the two cars involved. Parallel parked. I parallel parked my car there. It was fine. No one was hit at that point. I got out of the car – and, in fact – the car – the parking spot was right in front of my front door at home, the house. So, as I'm – I went towards the house, I turned around to make sure that the lights went off and I noticed that the guy – the person behind me….[interruption caused by his cell phone's notification system]

THE COURT: So, you said you got – you parallel parked, you got out…

A: I parallel parked…

THE COURT: …in front of your front door?

A: ….I got out of the car…

THE COURT: Right.

A: …I didn't hit any body at that point, okay?

THE COURT: Okay.

A: The car was parked. I went up to open the door, I turned around to see if the lights were off, and I noticed that the car was a little bit too close to the one behind me. In other words, he could use six or seven more inches for – if he had to get out safely. So, I decided to get back into the car with the sole intention of moving it forward anywhere from eight to ten inches, to give him a little bit more room in the back. Okay?

THE COURT: Mm-hmm.

A: I got into the car with the sole intention of moving it forward anywhere from six to ten inches so he would have a little bit more room to get out. At that point, as I'm moving the – moving the car, I pushed the front bumper – the back bumper of the car in front of me. At that point, I got a little bit frustrated and as I moved back, I tapped the person behind me. And those are the – those words are very important, tap and push. I had no – there was – it was not a hit. It was a slight, gentle push on the bumper. When I got out of that car – when I got out of that car, I – there was 150 witnesses there. So, there was no question – no question of who did it. I did it. And then, the other two young men came there, and at that point, we said, okay, let's see – I did it, I acknowledged responsibility. We – and then we tried to assess the damage. And that was hard to do because – it was hard to do because it was a very small push, a very small push and there was practically nothing on my car. No damage to my bumper, that I hit, front or back. To the point that I put a little bit of spit to see if I – just to wipe - wipe it off. That's the extent of the damage that was at that night. Okay? That was the extent of the damage. So, at that point, I'm out, the two young men come and say you did it. Of course, I did it, there was no question that I did it. I said, okay, what are we going to do here? Fine. Exchange information, which we did…

[64] He testified that they all agreed that night that the damage caused was insignificant, and minor. They all put their insurance, driver's licence and ownership documents on the hood of a car and took photographs of them. Mr. Muia testified that he told them that if the damage was in the $200-300 range, he would cover it from his own pocket, and they agreed to that arrangement, and that if it was more than $400, they would go through insurance. Since they all had insurance, there was no reason to phone the police. One of the other driver's phoned him the next day, he cannot recall which one, and advised him that the damage to his car was between $500 to $700, which was too much money, and they agreed to claim it through their insurance.

[65] Mr. Muia initially denied receiving the letter from the police. He said that he did not hear anything else about this accident until he received a summons to attend court. He was adamant that the police should have phoned him. He was equally strident that he gained nothing by failing to report this accident, that he is a decent driver and is not concerned about potentially losing three points. He maintained that he did everything properly and that he took responsibility and that he had insurance.

[66] His evidence in chief about failing to report the accident changed, however. Mr. Muia then said it was incumbent on the police to send him a registered letter to ensure that he would respond to it, as follows (transcript, April 12, 2019, at p. 31):

…I did everything properly. I - I took responsibility. I – I had insurance. I had everything possible. Because I didn't go there to report it – and, my god, they send a letter knowing that they have – they're going to produce a – a file like this, a file as – a half inch file, a half inch file, and they don't send a letter that says registered to make sure that I would respond to it. My god, that's silly. That is absolutely silly. And you don't take every precaution to make sure that the person - I triggered this. We're all here, the witnesses were here, and what did we gain out of this? What has been gained? So, you're going to punish me for what – and what lesson have you taught me here? There's no lesson to learn here. Because everything was done properly. Properly. But they didn't do their job properly. Not the police officer, who should have made – taken every effort to make sure that I would respond to that letter. And the Crown, for not accepting, not acknowledging that this is nothing but silliness. Okay. That's enough. I'm tired.

[67] During cross-examination, he reiterated that he had successfully parallel parked his car, exited the vehicle, went to his front door, only to return to "give the person in front – behind me, another eight inches or so to get out of his parking spot. Then, I hit front and back. I'm not denying that I hit it." (Transcript, April 12, 2019, at p. 33).

[68] During his cross-examination, he denied that he initially told the other drivers that he did not hit their vehicles. He testified that at that time, he denied causing any damage, but then, he accepted that he did.

[69] Finally, during cross-examination, he admitted that he did not call his own insurer about this collision, but he said that was because he did not believe there was any damage to his own car. When confronted by the Prosecutor that he should have advised his insurer about damage to the property of others when he was aware that it was beyond his ability to pay, he made mention of having an agent who deals with all of his cars and trucks on the road, named Julie, and he said that he told her that he was involved in some minor accidents, without stating whether or not he advised her about this particular accident.

[70] In Redirect, he said, inter alia, (transcript, April 12, 2019, at p. 41):

…With no fault insurance, as I'm sure we all know, is everyone takes care of their own damage. In other words, these two gentlemen who car was broken – that I hit, their – their insurance company will fix their cars. Then, what they will do, if it's significant enough, they will say, let's go after Mr. Muia's insurance company and recover some of that money. But in many cases, when they're small, they don't do that. They just absorb the loss. Everybody does that…

Final Submissions

Submissions from the Prosecutor

[71] The Prosecutor submitted that the testimony of Mr. Tweneboah and Mr. Kadan was reliable, and should be relied upon.

[72] He argued that Mr. Muia was reluctant to accept responsibility, and then when he did, he tried to minimize the damage in his own favour. Once he was aware that they had suffered losses, he was dismissive, and he failed to report the collision even though he was made aware that the damage was over the $2000 threshold.

[73] Moreover, the Prosecutor argued that he moved his car unsafely from a stopped position when he committed these offences.

[74] The witnesses had difficulty reading his licence plate, because it was obstructed.

[75] The Prosecution is seeking convictions on all three charges.

Defence Submissions

[76] In terms of his licence plate, Mr. Muia relied on his own photograph (Exhibit 2), to submit that the numbers on his licence plate are in fact visible, and that he believes this charge was made in error.

[77] He submits that he made a decision that the car could be moved safely, six to ten inches. Again, he faulted the officer for relying on the information provided by the two other drivers and for not understanding how the cars had been moved when she made the decision to charge him.

[78] Finally, he had no reason to report this accident because he thought the value of the damage was below the $2000 and "no one told me otherwise" (transcript, April 12, 2019, at p. 44). He added, "if they had delivered the letter properly, made sure that I received it, I – I would have reported it because, again, I'm not far from there.." (Ibid, at p. 45).

Reply

[79] No Reply was offered.

Analysis

The Charges

[80] The relevant three charges under the HTA are set out as follows:

Start from stopped position not in safety:

s. 142.(2) Signal when moving from parked position – The driver or operator of a vehicle parked or stopped on a highway before setting the vehicle in motion shall first see that the movement can be done in safety, and, if turning the vehicle the operation of any other vehicle may be affected by such movement, shall give a signal plainly visible to the driver or operator of such other vehicle of the intention to make such movement.

Plate not visible:

s.13.(2) Number plate to be kept clean - Every number plate shall be kept free from dirt and obstruction and shall be affixed so that the entire plate, including the numbers, is plainly visible at all times, and the view of the number plate shall not be obscured or obstructed by spare tires, bumper bars, any part of the vehicle, any attachments to the vehicle or the load carried.

Fail to Report:

199.(1) Duty to report accident – Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

Credibility

[81] In order to make any determinations in this matter, I must consider the credibility of all three drivers and the officer. Both Mr. Tweneboah and Mr. Kadan identified each other and Mr. Muia at this trial, and both Mr. Tweneboah and Mr. Kadan described how Mr. Muia hit both of their parked cars while attempting to parallel park his own vehicle. Mr. Muia conceded that he hit both of their vehicles, but maintained that he had already successfully parallel parked, when he returned to his car to leave more room between the vehicles, and he collided with both of their parked cars as a result.

[82] In terms of assessing the credibility of Mr. Tweneboah and Mr. Kadan, I rely on Her Worship Shousterman's succinct summary in paragraphs 418 and 419 of Ontario (Ministry of Finance) v 1375923 Ontario Inc., 2019 ONCJ 547, in which she stated:

It is accepted that the determination of the credibility and reliability of a witness is fundamental to the judicial task. It has been recognized that the determination is more an art than a science, and is not a purely intellectual exercise. The factors involved can be challenging to verbalize: R v R.E.M., 2008 SCC 51 at para. 49.

That being said, the factors include the witness' ability to observe events, the firmness of his/her memory, the ability to resist the influence of interest to modify his/her recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his/her testimony during examination in chief and cross-examination, whether the witness has a motive to lie and the demeanour of a witness generally: Faryna v. Chorny, [1952], 2 D.L.R. 354 (BCCA); R v S(R.D.), [1997] 3 S.C.R. 484 (SCC).

[83] Neither of them was shaken during their testimony, during their evidence in chief or cross-examination. They were each forthright and clear in their evidence. When they realized that this matter would not be settled privately, they each reported provided Mr. Muia with an estimate, he declined to cover it personally, and then each of them reported it to the TPS Reporting Centre and provided accurate estimates of their respective damages.

[84] I also find Officer Guay to be credible and her evidence to be factual and reliable. I note, however, that the total police estimate of the damage to be $2900, which was higher than the total estimates provided by the other drivers, which was $2300. I accept her evidence that she investigated this accident based on the reports filed by Mr. Tweneboah and Mr. Kadan, that she sent a letter to Mr. Muia at his home address, requesting that he report, and that the police did not receive a reply to this letter. As a result, she laid the charges in this matter.

[85] Moreover, I find that Officer Guay was not shaken during cross-examination, nor did the steps she took in this investigation depart in any way from the steps routinely taken by the police when investigating collisions in the City of Toronto.

[86] In assessing the credibility of the defendant, I rely on R. v. W.(D.), [1991] 1 S.C.R. 742, where (then) Mr. Justice Cory held that credibility should be assessed as follows:

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

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[87] I do not believe the evidence of Mr. Muia regarding his duty to report the accident.

[88] Although he may have thought the damage was relatively minor at the time the accident occurred, I accept as true that both Mr. Tweneboah and Mr. Kadan phoned him with their estimates, which exceeded the $2000 threshold by $300 in total. Mr. Muia admitted in his testimony that he advised each of them that this was more than he could pay personally and he wanted to go through insurance. However, he admitted during cross-examination that he did not call his insurer.

[89] Moreover, he contradicted himself during his testimony in chief about whether or not he received the letter from the police asking him to report. At first, he adamantly denied receiving this letter. Later in his testimony, he said that if the police had wanted him to pay attention to a letter, they should have sent it by registered mail to him, "to make sure I would respond to it". I am fully satisfied that he was aware that the threshold of damages had been met, and that he failed to contact the police, as required to do by law.

[90] In terms of the condition of his licence plate, I am not left in reasonable doubt by his evidence as true that this licence plate is legible, based on Exhibits 1 and 2 and the testimony of Mr. Tweneboah and Mr. Kadan, who observed it at the time of the accident.

[91] In terms of his evidence about starting his vehicle from a stop not in safety, I accept his testimony that he had parallel parked his vehicle, stopped it, exited the car and returned, only to hit both cars on either side of him. I am convinced beyond a reasonable doubt, even accepting that portion of his evidence, and relying on the third part of the test in R. v. W.(D.), that his vehicle was parked near his home on Augusta Avenue, in the City of Toronto, which is a highway within the meaning of the HTA. I accept that he started this vehicle from a stopped position, and hit Mr. Kadan's vehicle twice, and Mr. Tweneboah's vehicle at least once. I reject Mr. Muia's testimony that this accident was just a "tap" and a "push". Both other vehicles were damaged and required expensive repairs, and Mr. Tweneboah saw his vehicle rock and heard the sound of the collision at the time of this three-car accident.

Findings of Fact and Law

[92] Based on all the evidence before me at this trial, I am making the following findings of fact:

(a) A collision took place on June 9, 2018, near 272 Augusta Avenue, in the City of Toronto; around 2:45 am;

(b) This collision took place when the Cadillac SUV driven by Mr. Muia with Ontario licence plate BMXS 343, owned and operated by Mr. Muia, hit the vehicles parked on either side of his vehicle, causing damage to them;

(c) The three drivers to this accident, Mr. Tweneboah, Mr. Kadan and Mr. Muia exchanged information and discussed settling the matter privately if the costs to Mr. Muia were not beyond his ability to pay;

(d) Mr. Tweneboah and Mr. Kadan provided Mr. Muia with their estimates of $1300 and $1000. These amounts were beyond his ability to pay personally and he advised them that he wished to go through insurance;

(e) As a result of these conversations, both Mr. Tweneboah and Mr. Kadan reported this accident to the Collision Reporting Centre forthwith. Mr. Muia failed to report it, although he was aware that the damages exceeded the $2000 threshold from both other drivers and he had been notified by the TPS of his obligation to do so in a letter (Exhibit 3); and

(f) The other drivers to this accident had great difficulty reading his licence plate, as did Officer Guay, who was relying on the photograph taken by Mr. Tweneboah), and entered as Exhibit 1. Mr. Kadan used his zoom function to photograph Mr. Muia's licence plate at the time of the accident, but misread it when he testified, as noted in paragraph 38 of this judgment, because he could not read the middle digit and was guessing when he testified as to what it said.

[93] According to Libman on Regulatory Offences in Canada, loose-leaf, Earlscourt Legal Press Inc, update 28 – October 2017, at page 6-2:

Public welfare offences prima facie constitute offences of strict liability. They are neither offences in which mens rea must be proved by the prosecution, either as an inference from the nature of the act committed, or by additional evidence, nor are they offences of absolute liability where it is not open to the accused to exculpate himself or herself by showing that he or she was free of fault.

[94] The charges in this trial are strict liability offences, and the HTA is a public welfare statute. The onus is on the prosecution to prove the actus reus of each of the three offences.

[95] I have not found any caselaw under the HTA which applied the offence of start from stopped position not in safety, s.142(2), to parallel parking offences.

[96] In R. v. Beauchamp, [1952] O.J. No. 495, at paragraph 21, the Court of Appeal was considering what constituted careless driving, and examined what was considering what was a breach of duty to the public and deserving of punishment, as follows:

There is a further important element that must also be considered, namely, that the conduct must be of such a nature that it can be considered a breach of duty to the public and deserving of punishment. This further step must be taken even if it is found that the conduct of the accused falls below the standard set out in the preceding paragraphs. This principle may be somewhat difficult to apply, but I think it might be illustrated by the common example of a motorist attempting to park at the curb in a space between two other parked vehicles. Frequently one or other of the parked vehicles is bumped in the process. Damage seldom arises, because cars are equipped with bumpers, but if damage were caused it might well give rise to a civil action for damages, but it could hardly be said to be such a lack of care or attention as would be considered to be deserving of punishment as a crime or quasi-crime. [emphasis added]

[97] However, Beauchamp has been overruled by Justice Epstein in R. v. Shergill, 2016 ONCJ 163, insofar as it treated careless driving as a mens rea offence, at paragraph 22:

In light of jurisprudence since Beauchamp it would now appear to be settled law careless driving is a strict liability offence and, since mens rea is not a relevant factor for consideration, that the court ought not to look at the conduct to determine whether it is "blameworthy and deserving of punishment". To the extent that Beauchamp added that consideration as an element of the charge it has, in my view, been effectively overruled.

[98] In the facts of this case, Mr. Muia re-entered his vehicle, a Cadillac SUV, which he had previously parked on a highway, being Augusta Avenue, and set the vehicle in motion. He was required to first see if that movement could be done in safety. This movement was not made in safety, since he hit one vehicle twice, and the other vehicle once. He described this impact as a "tap and a push", but in fact, he caused serious damage to both other vehicles. The actus reus of this strict liability offence has been made out beyond a reasonable doubt.

[99] His due diligence defence also fails, because he has failed to establish that he has done all that he could to avoid committing this offence. His decision to parallel park his large vehicle in a tight space between two parked cars was negligent, and it contributed to this violation. See: R. v. Chapin, [1979] 2 SCR 121 at 134.

[100] The language surrounding the offence of plate not visible under s. 13(2) the HTA is mandatory language. It provides that the licence plate be "kept free from dirt and obstruction" and be "plainly visible at all times".

[101] I rely on the clear testimony of Mr. Tweneboah and Mr. Kadan, who both found the plate very difficult to read at the time of this three-car accident. Further, I rely on the testimony of Officer Guay, who examined the photograph taken at the time (Exhibit 1), and said that she would be unable to read this licence plate unless standing very close to it. I have also considered Exhibits 1 and 2, and even relying upon the more favourable photograph taken by Mr. Muia, I find the first two numbers of his licence plate to be illegible, which corroborates the confusion Mr. Kadan spoke of in his testimony, even using the zoom function to take a photograph, who still misstated the middle digit of the licence plate, confusing a "5" for an "S".

[102] For these reasons, the actus reus of this offence has also been proven beyond a reasonable doubt.

[103] Further, I find that Mr. Muia has not made out a due diligence defence, since he knew or ought to have known that his licence plate was illegible and did not take any steps to obtain a new licence plate, see: R. v. MacMillan Bloedel Ltd., 2002 BCCA 510.

[104] Mr. Muia's defence to the charge of failing to report the accident is one of mistaken belief, as described in R. v. Sault Ste. Marie (City), [1978] 2 SCR 1299. His testimony indicated that he mistakenly believed the damages were minor and did not meet the $2000 threshold to report an accident.

[105] However, for the reasons noted above, I find that I prefer the testimony of the other two drivers, who advised him over the telephone that their total damages were approximately $2300, and in his own testimony, he clearly admitted to telling them that they needed to claim this amount through their insurance. At this point, he was obligated to report the accident to the police, but he failed to do so.

[106] I am satisfied that the Prosecution has proven the actus reus of all three offences. In order to avoid conviction, it is incumbent on Mr. Muia to show on a balance of probabilities, that, "either that he had an honest but mistaken belief in facts, that if true, would render the act innocent, or that he exercised all reasonable care so as to avoid committing the offence", as per Libman on Regulatory Offences in Canada, page 6-2, citing R. v. Pontes, [1995] 3 SCR 44. He has been unable to demonstrate a due diligence defence for any of these charges.

Order

[107] For the reasons outlined above, I hereby enter convictions on all three charges in this matter.

Dated at Toronto, on September 30, 2019.

Mary A. Ross Hendriks, J.P.