Court Information

Court File No.: 4862 999 17 17201873-00

Date: October 2, 2019

Ontario Court of Justice

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

Parties

Her Majesty the Queen

v.

Dibert Ennis

Judicial Officer

Presiding Justice of the Peace: Mary A. Ross Hendriks

Counsel

Mr. A. Smith, Provincial Prosecutor

Mr. O. Chambers, Paralegal for the Defendant

Mr. D. Ennis, In Person

Hearing and Judgment Dates

Hearing Dates: January 3, 2019, February 8, 2019, and April 10, 2019

Judgment Date: October 2, 2019

Reasons for Judgment

Introduction

[1] Mr. Dibert Ennis has been charged, on or about June 5, 2017, in the City of Toronto, Toronto Region, with five counts, contained in a sworn Information, as follows: change lane not in safety, contrary to s.142(1) of the Highway Traffic Act, R.S.O. 1990, c.H.8 ("HTA"); fail to remain, contrary to s.200(1)(a) of the HTA; fail to report, contrary to s.199(1) of the HTA; fail to provide required information, contrary to s.200(1)(c) of the HTA; and 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").

[2] Mr. Ennis, through his legal representative, Mr. Chambers, was arraigned and entered a plea of not guilty to each of these charges.

[3] I held a trial in this matter on January 3, 2019, February 8, 2019 and April 10, 2019, and adjourned the matter to receive transcripts and to prepare this written judgment.

Issues

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

(a) Did a collision take place on June 5, 2017, at approximately 2:45 pm on Lawrence Avenue West, near Keele Street, in the City of Toronto?

(b) If yes, has the identity of the other driver been established as being Mr. Ennis?

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

i. did Mr. Ennis change his lane not in safety?

ii. did Mr. Ennis fail to remain?

iii. did Mr. Ennis fail to report?

iv. did Mr. Ennis fail to provide required information?

v. did Mr. Ennis fail to disclose particulars of his insurance?

Evidence

Prosecution's Witnesses

[5] The Prosecutor called two witnesses: Mr. Bradley Joseph Inacio and Police Constable Phillip Li.

Mr. Bradley Joseph Inacio

[6] The prosecutor called Mr. Inacio as his first witness. He testified that on June 5, 2017, at about 2:45 pm, he was travelling eastbound on Lawrence Avenue West, in the City of Toronto. He was in the right curb lane and travelling between 30 to 40 kilometers per hour. Mr. Inacio was operating his parents' white BMW. He was alone in the motor vehicle, having just left work.

[7] Mr. Inacio testified that he had just driven past Keele Street when another driver, "decided to hook his right turn, come into the right lane…" (see: transcript, January 3, 2019, at p. 8).

[8] He said that the other vehicle was to his left, also travelling eastbound on Lawrence Avenue West. Mr. Inacio testified that the other driver, proceeded to hit the back of his BMW with what he believed to be a Chevy Savana, as follows (ibid, at p.9):

...veered right into my lane, noticed I guess he noticed that I was already there halfway, he turned back to his left lane, the backend of his vehicle because it's a large Savana, hit the back or the backend of his Savana hit my door, brushed it in and then he cut back in right to cut me off.

[9] Mr. Inacio was asked to describe the incident, again, on cross-examination. He described the incident as follows (ibid, p. 24):

He cut me off, hopped into the right lane. My car was already halfway where his car is then he noticed that, I kept honking and honking and honking, he turned back to his left lane. The backend of his vehicle, his GMC is long so the backend of it hangs off five feet from the back wheelbase, smacked into my door. That's when I stopped, kept honking my horn, waived him down and he continued proceeding into the right lane where I was and continued straight till he noticed I was following him in there then he tried to do his own thing in the parking lot.

[10] Mr. Inacio testified that at the moment of impact the BMW shook but did not veer from its lane. He testified he stopped the BMW as soon as he heard the bang from the collision. The driver of the Savana did not stop. Mr. Inacio started to follow the other motor vehicle. He honked his horn and waved his hands in an effort to get the attention of the driver of the Savana, to no avail. The other driver continued driving eastbound and entered into the right lane.

[11] The driver of the Savana pulled into the plaza to the right. He drove around the plaza until he parked his motor vehicle. Mr. Inacio approached and tried to speak with the driver of the Savana who (ibid, p. 9), "tried to escape again."

[12] During his cross-examination, he described what he perceived to be the other driver's attempts to evade him as follows (ibid, p. 25):

…doing circles inside the plaza after he noticed I kept following him, tried to park then he, then he noticed I was there after I told him, hey, man, you hit my car, didn't you see? This and that. No, he continued, cut across the parking lot again, go into another spot.

[13] Mr. Inacio admitted he blocked the defendant's motor vehicle as the defendant was "running away from me…" (ibid, p. 23).

[14] Mr. Inacio testified that the defendant had already exited his motor vehicle when he approached him. He testified the defendant said nothing had happened and that he waved his hands and walked away from him after Mr. Inacio had requested his driver's licence and registration.

[15] On cross-examination Mr. Inacio was asked whether he told the defendant to go into Walmart and shop. Mr. Inacio stated he told the defendant to be a man and provide the information sought however the defendant shrugged his shoulders and walked away.

[16] Mr. Inacio took four photographs on his cellphone. These photographs were not disclosed to the defence prior to trial. Mr. Chambers objected to the photographs being admitted into evidence. After hearing submissions, and upon the consent of the parties, it was agreed that Mr. Inacio could: (i) use the photographs on the cellphone to refresh his memory; and (ii) provide the licence plate of the defendant's motor vehicle which was captured on one of the photographs. The photographs were not admitted into evidence.

[17] Mr. Inacio testified the licence plate of the other motor vehicle was "AB64793". Mr. Inacio asked for the other driver's information, but he declined to provide it, advising him that nothing had happened. Mr. Inacio told him he would report the matter to the reporting centre and the other driver walked into the Walmart store within the plaza. Mr. Inacio drove to the Collision Reporting Centre on Toryork Drive, Toronto, and reported the incident to the police.

[18] Mr. Inacio identified the defendant in court as being the other driver to this collision. He testified that the defendant was the sole occupant of the motor vehicle that had hit the BMW.

[19] Mr. Inacio described the accident as taking place when the back bumper of the van hit his driver's side door, right underneath the handle, damaging the driver's door and the back-passenger door of his vehicle.

[20] Mr. Inacio testified that the repairs to rectify the damage to the BMW cost around $3000 to $4000, because both doors had to be repainted and one door had to be replaced. During cross-examination, he testified that it was the officer at the Collision Reporting Centre who estimated the damage to the vehicle (ibid, p. 38).

[21] During cross-examination, Mr. Chambers asked Mr. Inacio if his parents owned the BMW. He replied, "yes".

[22] Mr. Chambers then asked if his parents were very upset when the accident occurred. Mr. Smith objected to this question. I asked for the relevance, but did not receive a direct reply, as Mr. Chambers proceeded with a different line of questioning.

[23] He was shown the report he completed at the Collision Reporting Centre, which he identified. When asked why he did not fill out the portion of the form asking, "Can anyone identify the other vehicle involved?" He replied:

"I didn't fill out this portion because the officer told me not to fill out that portion. He only told me to fill out suspect vehicle driver." (ibid, p. 21)

[24] Mr. Inacio testified that he gave the officer at the Collision Reporting Centre all of his reports, and that the officer looked over them, and took photos outside.

[25] Mr. Inacio testified that white paint from his car ended up on the defendant's back right bumper vehicle after impact. During re-examination, he indicated that he saw that the defendant's back bumper had the plastic grippings that hug the bumper torn off a little and that the paint from the BMW had been transferred onto his vehicle in the same area.

[26] After impact, the damage to the BMW was a "big dent and a sharp edge coming into it" (ibid, p. 30).

[27] He said that the defendant's bumper was very large, describing it as follows (ibid p.30):

On his bumper there's lots of plastic, there's lots of – it's a beefy bumper, it's a GMC Sierra so it's going to be a beefier car so it's going to have that punch to it, no?

[28] Mr. Chambers suggested to Mr. Inacio that he "concocted a story so that you didn't have to explain why you damage your parents' car and that's what happened and that's what I'm suggesting to you" (ibid, p. 31). I directed the witness to reply to this question. He denied this suggestion, and testified that he was "very open and honest with his parents," adding that (ibid, p. 31), "I come clean with everything."

Police Constable Phillip Li

[29] Police Constable Phillip Li was the second and final witness for the prosecution in this matter.

[30] He testified that he is a uniform police constable with the Toronto Police, and has been so employed for 12 years. He was the investigating officer in this case.

[31] On June 7, 2017, he was assigned to investigate a Toronto police report of failing to remain at a collision, which had been reported by Mr. Inacio (Exhibit 1: "Self-Reporting Collision Report" and "Fail to Remain Collision Form"). Mr. Inacio told police he had been involved in a collision with another motor vehicle on June 5, 2017 at approximately 2:45 pm.

[32] In this Self-Reporting Collision Report, Mr. Inacio indicated that the licence plate of the suspect vehicle, being AB64793. This report also indicates that the other vehicle was a white GMC Savana, with one occupant. In the CRC Fail to Remain Collision Form, Mr. Inacio indicated there was potential damage to the left rear quarter and bumper of that vehicle.

[33] In the Fail to Remain Collision Form, the other driver was described as black, in his 50's, 5'9" tall, about 160 pounds, with black hair, and wearing a white t-shirt and black pants.

[34] Officer Li used this information about the licence plate to run a search through the Ministry of Transportation ("MTO"). He discovered the owner of the plate was Mr. Dibert Ennis, with an address in Toronto, and that this plate was attached to a 2002 white GMC Savana.

[35] Officer Li testified that as a result of the information he obtained from the MTO, he wrote Mr. Ennis on June 9, 2017, requesting that the registered owner of the 2002 white GMC Savana bearing licence plate AB64793 get in contact with him.

[36] Officer Li did not receive a response to his letter. He attended at Mr. Ennis's residence on June 24, 2017. He knocked on the door but did not receive a response. He left contact information.

[37] Yet again Mr. Ennis did not respond. As a result Officer Li attended at Mr. Ennis's residence at 8:48 am on July 16, 2017. A male opened the door and identified himself as Dibert Ennis. Mr. Ennis provided Officer Li with his Ontario driver's licence.

[38] Officer Li told Mr. Ennis why he was there, and asked to see his vehicle. Mr. Ennis took him to the rear of the building, where he had a parking spot, and showed him his vehicle.

[39] Officer Li observed damage on this vehicle near the passenger side door, which he estimated was worth $500 in damages, although he added in his testimony in chief that (transcript, February 8, 2019, at p.7), "the vehicle was fairly rough all around." As a result, he could not confirm that the damage he observed on Mr. Ennis's vehicle was consistent with the damage from the collision.

[40] Officer Li took a written statement from Mr. Ennis pertaining to the events of June 5, 2017. A voir dire was held to determine the voluntariness of Mr. Ennis's statement made to Officer Li on July 16, 2017. Officer Li and Mr. Ennis testified on the voir dire. After hearing both the testimony of Officer Li and of Mr. Ennis, and after hearing submissions from both parties, I concluded that Mr. Ennis's statement was voluntary and admitted his statement into evidence. My reasons for so doing were previously provided. Mr. Ennis's testimony on the voir dire was also admitted into evidence on the trial proper. Again, my reasons for so doing were previously provided.

[41] Officer Li testified that his first question to Mr. Ennis was whether he was operating a motor vehicle on June 5, 2017, at 2:45 pm. Mr. Ennis responded in the affirmative. He told Officer Li that he was the only person who had access to the motor vehicle bearing licence plate no. AB64793.

[42] Mr. Ennis told Officer Li he was going to Walmart on Lawrence Avenue West. He said that he passed the stop light, put on his right indicator to change lanes, and looked and saw a white motor vehicle behind him. He said the motor vehicle wouldn't stop. He turned into the Walmart parking lot and the driver of the white motor vehicle followed him. The driver, whom he described as a male, in his 40s and with brown skin, approached him and accused him of damaging his motor vehicle.

[43] Officer Li asked Mr. Ennis if he had ever reported this incident to the Collision Reporting Centre. Mr. Ennis indicated he had not. When asked why not Mr. Ennis said he had not touched the vehicle. He specifically denied causing any damage to the white motor vehicle.

[44] When Officer Li asked Mr. Ennis if he had anything else to add, he replied, "I said to him, didn't you see the indicator? He said yes. I see it but I only allow you to next lane." (ibid, p. 36)

[45] The statement was concluded at 9:06 am, and Mr. Ennis signed it.

[46] At the time of the statement, Officer Li was shown Mr. Ennis's Ontario driver's licence and was satisfied with his identity. He was also provided with insurance particulars.

[47] As part of the on-going investigation, Officer Li checked to see whether Mr. Ennis had ever attended the Collision Reporting Centre. He testified (ibid, p. 37), "I was unable to locate anything matching reports with other driver."

[48] Officer Li admitted he did not view Mr. Inacio's motor vehicle. He testified he relied on photographs on a computer system, which are the intellectual property of A.S.S.I. and estimated the damage to the motor vehicle to be $2,723. He also admitted he did not speak with Mr. Inacio and did not have any contact with him until the first court date.

[49] After concluding his investigation, Officer Li laid the charges on July 17, 2017.

Defence Witness

[50] The defence called one witness, Mr. Dibert Ennis.

Mr. Dibert Ennis

[51] Mr. Ennis testified that he is the owner of a white 2002 Savana van. He described its condition as (transcript, p. 56), "not bad".

[52] He admitted he was driving the Savana on June 5, 2017, on Lawrence Avenue West, travelling eastbound, crossing the intersection with Keele Street. Mr. Ennis testified he was intending to go from his home to Walmart. He described how he waited until traffic was clear in order to pull out from the driveway of his apartment onto Lawrence Avenue West.

[53] Mr. Ennis testified in chief (ibid, p. 56), as follows:

So, when the traffic clear, I go and made my turn in the right lane, the middle lane.

[54] After clarifying that he was in the middle lane, not the right lane, he testified that he continued to drive in the middle lane until he reached Keele Street when he put on his indicator signal and took his time to move into the left lane.

[55] Mr. Ennis testified he noticed a motor vehicle far behind him in the left lane. He stated (ibid, p. 57), "When I check my mirror, I see the car far behind me." At this point Mr. Ennis was still in his own lane and had not changed lanes. He added (ibid, p. 58), "So, I put on my indicator."

[56] Mr. Ennis made his lane change. As he testified he believed it safe to do so (ibid, p. 59), "because it was, it was clear and safe. So, I drive up to where I'm going to make my turn. I check again..."

[57] In chief, he testified that he was going to turn right, because (ibid, p. 59), "...that time I'm in the left lane. So, I make my turn and go straight towards the Walmart and park."

[58] Mr. Ennis said that he parked at Walmart. He saw a motor vehicle (ibid, p. 59) "drive and come in front of my van". The other motor vehicle was blocking him in the parking lot. Mr. Ennis turned off the engine, stepped outside his motor vehicle and the driver of the other motor vehicle told him that he had hit his car and damaged it.

[59] Mr. Ennis identified the driver of this other motor vehicle as Mr. Inacio.

[60] Mr. Ennis described what happened in the Walmart parking lot between him and Mr. Inacio as follows, verbatim (transcript, p. 60):

Yes, so I came out of my van, go in front of his car, I stand up right at the left headlight and he came out and go to left door so I say show me the damage and he wouldn't show me. I say show me the damage. All him do, rubbing the side of his door like this. So, I said, I ask him three time, show me the damage. Him said, you go into Walmart to do shopping, go on to Walmart to do shopping. And him go in in his vehicle and he drive away. Him never ask me for any papers or anything, he never have no contacts with him.

[61] Mr. Ennis denied that he moved into the lane occupied by Mr. Inacio's motor vehicle and then moved back to the original lane he had been travelling in.

[62] He also denied driving around inside the Walmart parking lot.

[63] Mr. Ennis said that the other driver never asked him for his documents. He asserted that when he asked him to show him the damage, he never answered him. Mr. Ennis described this moment (ibid, p. 61), as follows:

No, no, he never ask me because when me ask him for him to show me the damage, he never answer me. Never answer and he don't ask me for any paper because he knows that the car is never damage so he could not ask me for any paper.

[64] When asked in chief if he ever had a discussion with the officer regarding letting another driver in, he replied, no. Mr. Ennis said that he had told the other driver he had put on his indicator, adding (ibid, p. 61) "didn't you see?" Mr. Ennis continued, "Him said, well the only way - only if I want you to change your lane and I will allow you. That's what he said to me..."

[65] Mr. Ennis was adamant throughout his testimony that he made his turn safely and never touched the other car.

[66] Mr. Ennis was cross-examined about the inconsistencies in his voir dire testimony that: (i) he had attended at the Collision Reporting Centre but was told the investigating officer would not be back for 11 days, and (ii) that he had attended there without his vehicle so he had been unable to show it to them at the time; and his admission to Officer Li that he had never reported the incident to the police or the Collision Reporting Centre.

[67] Mr. Ennis reiterated what he said during the voir dire namely that he spoke with a police officer with the rank of "corporal" at the Collision Reporting Centre. He stated that Officer Li wrote down the statement incorrectly.

[68] Mr. Ennis identified a letter that he received, dated June 9, 2017, from the police requesting him to attend the Collision Reporting Centre (Exhibit 2).

Final Submissions

Submissions from the Defence

[69] Mr. Chambers reviewed the testimony of Mr. Inacio, who testified that:

(a) the defendant moved into his lane, cut him off twice, and hit the door of his motor vehicle;

(b) he called out to Mr. Ennis who tried to evade him by driving away;

(c) as a result of the attempted evasion he followed the defendant into the parking lot of a Walmart shopping plaza and watched as the defendant drove around in what he believed was a continuing attempt at evasion; and

(d) the defendant eventually parked his motor vehicle and Mr. Inacio blocked him in, approached the defendant and asked him to produce his documents which the defendant failed to do.

[70] Mr. Chambers submitted that it was the evidence of Mr. Inacio that the damage to his vehicle was "just a dent to the door which was caused by the bumper (transcript, April 10, 2019, at p. 5), and that the damage was $2000 to $4000.

[71] Mr. Chambers also reviewed the testimony of Officer Li who testified that the white Savana owned by the defendant was an older vehicle with no sign of fresh damage to indicate where contact if any had been made between the two vehicles.

[72] Mr. Chambers noted that there were no photographs at this trial of either vehicle, and Officer Li did not inspect Mr. Inacio's vehicle himself, but relied upon a computerized police system to estimate the value of the damage.

[73] Mr. Chambers also referred to Mr. Ennis's testimony, which put him on Lawrence Avenue West just past Keele Street, but who denied having any knowledge of any contact between his vehicle and Mr. Inacio's vehicle. In particular, he said he didn't feel any contact.

[74] Mr. Ennis had testified that when he asked Mr. Inacio to show him the purported damage, all Mr. Inacio did was use the palm of his hands to point out and rub part of the door of his vehicle. He also denied being asked for any information concerning himself or his vehicle.

[75] Mr. Chambers tried to argue the respective heights of the two vehicles, but Mr. Smith objected, because the matter is closed and there was no evidence on this point. I allowed the prosecutor's objection. I received no evidence on the issue of the height of the two vehicles in question, as per the rule in Browne v. Dunn.

[76] Mr. Chambers submitted that since the police were not called at the time of the discussion between them in the Walmart parking lot, there is no independent evidence to support the notion of a collision, nor have any photographs been submitted at this trial.

[77] Mr. Chambers indicated that Mr. Ennis was not "the smartest person when it comes to testifying" (ibid, at p. 8), vis-a-vis Mr. Ennis's use of the word "corporal" when describing the rank of officer he testified that he met with at the Collision Reporting Centre. The fact that a member of the public does not understand the hierarchy of police ranks is not a reflection of his intelligence. As I said on the record at the time this submission was made (transcript, p. 10), "…I don't begrudge a member of the public not understanding police rank so I give that no weight."

[78] Mr. Chambers submitted that Mr. Ennis has difficulty with the English language as he speaks Patois. I did not find that to be the case. I would note that a Patois interpreter was never requested either prior to or during any of the three days of trial. At no time whatsoever did Mr. Ennis indicate he did not comprehend the questions that were being asked of him.

[79] In his closing submissions, Mr. Chambers submitted that Mr. Ennis has a hearing problem that impeded his testimony. At no time prior to the outset of the trial or during most of the trial itself, did Mr. Chambers ask for any type of accommodation, or raise this as an issue.

[80] Just prior to Mr. Ennis's testimony, which took place on the second trial date, Mr. Chambers asked all of us to speak up, which we did, since he described his client as having (transcript, p. 54), "a little bit of a hearing problem". This was the only time Mr. Chambers raised the issue of Mr. Ennis's ability to hear during the trial. At no time whatsoever was I requested to have matters repeated as Mr. Ennis was having difficulties hearing. One would have thought that had Mr. Ennis suffered from some hearing loss either he and/or his legal representative would have advised the court so that the appropriate accommodation(s) could have been made. No accommodation was ever sought. Despite the fact that this trial took place over the course of three separate dates, no serious concern pertaining to Mr. Ennis' ability to hear was ever brought to the Court's attention until closing submissions.

[81] In conclusion, Mr. Chambers argued R. v. W.(D.), [1991] 1 S.C.R. 742, and submitted that since there were two competing versions of what took place, and no physical evidence, that there was some doubt as to what occurred, and asked me to dismiss the charges against the defendant.

Submissions from the Prosecution

[82] Mr. Smith asked me to find that the location of the Walmart plaza as being on the south side of Lawrence Avenue, just east of Keele Street, not west.

[83] He also asked me to recall the testimony of Officer Li, who said that Mr. Ennis's van was an older van that already had a fair amount of damage on it, which is the reason why the officer could not determine what was new damage versus old damage.

[84] Mr. Smith submitted that the prosecution has made out its case beyond a reasonable doubt. He added that Mr. Ennis's credibility was very much at issue.

[85] He agreed with Mr. Chambers that this situation was essentially a case of he said - he said, since each of the two drivers was alone in his vehicle.

[86] Mr. Smith urged me to assess the credibility of Mr. Inacio, Mr. Ennis, and consider the evidence of the investigating officer, Police Constable Li.

[87] Mr. Inacio was not undermined on cross-examination, but consistent, and he remained clear regarding the quantum of damages to his vehicle.

[88] The statement Mr. Ennis gave to Officer Li at the time of the investigation included an admission that he had not gone to the Collision Reporting Centre, which conflicts with his testimony. When confronted with this discrepancy, Mr. Ennis testified that Officer Li must have written it down wrong.

[89] Mr. Smith also highlighted Mr. Ennis's lack of credibility and his demeanour during the voir dire, and urged me to consider all three prongs of the test in R. v. W. (D.), and even relying on the third prong, find that I am not left in any reasonable doubt and to convict.

Reply

[90] Mr. Chambers submitted that Mr. Smith had not gone into the area of the estimate of damages, and that this evidence was entered through the testimony of Mr. Inacio. He asked me to consider the totality of all the evidence which he referred to earlier in his submissions.

Analysis

The Charges

[91] The relevant four charges under the HTA are set out as follows:

Change lane not in safety:

s. 142.(1) Signal for left or right turn - The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane of traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.

Fail to remain:

200.(1) Duty of person in charge of vehicle in case of accident - Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall,

(a) remain at or immediately return to the scene of the accident;

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).

Fail to provide required information:

200.(1) Duty of person in charge of vehicle in case of accident - Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall,

(c) upon request, give in writing to anyone sustaining loss or injury or to any police officer or to any witness his or her name, address, driver's licence number and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number.

[92] The relevant charge under the CAIA is as follows:

Particulars to be disclosed:

4.(1) An operator of a motor vehicle on a highway who is directly or indirectly involved in an accident shall, on the request of any person directly or indirectly involved in the accident, disclose to the person the particulars of the contract of automobile insurance insuring the motor vehicle.

Credibility

[93] In order to make any determinations in this matter, I must consider the credibility of Mr. Ennis and Mr. Inacio. Both Mr. Ennis and Mr. Inacio identified each other at this trial, and both agree that Mr. Inacio used his vehicle to block in Mr. Ennis's vehicle in the Walmart parking lot located at Lawrence Avenue West near Keele Street in the City of Toronto on June 5, 2017.

[94] In terms of assessing the credibility of Mr. Inacio, 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: Farnya v. Chorny, [1952] 2 D.L.R. 354 (BCCA); R. v. S. (R.D.), [1997] 3 S.C.R. 484 (SCC).

[95] I find that Mr. Inacio's testimony was consistent in both chief and during cross-examination. His evidence was not shaken. He was adamant that the other driver who hit his vehicle was operating a Savana van. He identified the other driver at this trial as the defendant before the court.

[96] When Mr. Inacio realized that the defendant had entered his lane, hit him and appeared to be fleeing the scene of the collision, Mr. Inacio followed him. Mr. Inacio's testimony of using his vehicle to block in the other driver's vehicle in the parking lot was clear and compelling. Mr. Ennis confirmed that Mr. Inacio was the driver of the motor vehicle who blocked him in at the Walmart parking lot on the day in question.

[97] Mr. Inacio testified that he took photographs of the damage to his vehicle as well as a photograph of the licence plate of the motor vehicle that had hit his shortly after the accident. He shared them with the officer at the Collision Reporting Centre.

[98] Mr. Inacio's evidence that he attended at the Collision Reporting Centre shortly after the accident was corroborated by his "Self Reporting Collision Report" and "Fail to Remain Collision Form", dated June 5, 2017 (Exhibit 1).

[99] The evidence of Officer Li corroborates Mr. Inacio's testimony that this Ontario licence plate was registered to the Savana van owned by the defendant.

[100] I accept as true the evidence of Mr. Inacio that the defendant entered his lane, hit his vehicle, fled from the scene of the accident, and when he blocked the defendant in at the Walmart plaza parking lot, Mr. Ennis refused to produce his documents, and waived him away.

[101] I find Officer Li's testimony to be concise, factual and truthful. I rely on his testimony regarding his investigation of this matter.

[102] In assessing the credibility of the defendant, I rely on R. v. W. (D.), 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 guilt of the accused.

[103] I do not believe the evidence of Mr. Ennis.

[104] Mr. Ennis told Officer Li that he had not gone to the Collision Reporting Centre. However, during the voir dire, he testified that he had gone to the Collision Reporting Centre and was told to return in 11 days when the officer in charge of the matter would be back. He also testified on the voir dire that someone asked to see his vehicle and he said he could not show it to them because he had walked. When confronted with this inconsistency during cross-examination, he replied that Officer Li had recorded it incorrectly. For the record, I reject Mr. Ennis's explanation in its entirety.

[105] I am not left in reasonable doubt by the evidence of Mr. Ennis.

[106] There is no other logical inference to draw from the testimony of both Mr. Ennis and Mr. Inacio about Mr. Inacio's deliberate blocking in of Mr. Ennis in the Walmart parking lot was that Mr. Inacio was desperate to hold him accountable for the collision and to stop him from fleeing. It is not plausible that Mr. Inacio would block in another driver in a shopping mall, tell him that he hit him, and then decline to show him the damage to his vehicle.

[107] I am not left in any doubt about Mr. Ennis's guilt through his own evidence. His testimony which is inconsistent with any findings of guilt is not credible, nor does it raise any reasonable doubt. When he described the scene in the Walmart parking lot with Mr. Inacio, he said that he asked Mr. Inacio if he had seen his indicator, which I am prepared to infer means that Mr. Ennis understood why Mr. Inacio was angry. See: R. v. Morillo, 2018 ONCA 582 at paragraph 18.

Findings of Fact

[108] 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 5, 2017, on Lawrence Avenue West, near Keele Street, in the City of Toronto, around 2:45 pm;

(b) This collision took place when the Savana van with Ontario licence plate AB64793 owned and operated on that date by Mr. Ennis, entered the curb lane of Lawrence Avenue West, occupied by the BMW driven by Mr. Inacio, and hit his vehicle, causing damage to it;

(c) Mr. Ennis fled from the scene of the accident, but Mr. Inacio followed him, and blocked him in at the nearby Walmart parking lot, located at Lawrence Avenue West and Keele Street, Toronto;

(d) Mr. Inacio asked Mr. Ennis for his documents and insurance, but Mr. Ennis declined to provide them, so Mr. Inacio took a photograph of Mr. Ennis's Ontario licence plate and proceeded to report the accident to the Collision Reporting Centre shortly after the accident occurred;

(e) Officer Li was assigned this investigation on June 7, 2017. He ran the Ontario licence plate provided by Mr. Inacio through the MTO database and found that the owner of the plate was Mr. Ennis;

(f) Officer Li sent a letter from the Collision Reporting Centre, dated June 9, 2017, to Mr. Ennis, asking him to contact him (Exhibit 2);

(g) Mr. Ennis received the letter, but failed to contact Officer Li; and

(h) As part of Officer Li's investigation, he attended at Mr. Ennis's home on July 16, 2017, and after cautioning him, took a statement from him in which Mr. Ennis admitted, inter alia, that he had not reported the matter. The statement was signed by Mr. Ennis.

Findings of Law

[109] All of the charges in this trial are strict liability offences, and the HTA and CAIA are public welfare statutes.

[110] According to Libman on Regulatory Offences in Canada, looseleaf, 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.

[111] The key case in this regard remains R. v. Sault Ste Marie (City), [1978] 2 SCR 1299. Once the prosecution has proven beyond a reasonable doubt the actus reus of the offence, then in order to avoid conviction, the defendant must prove, 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.

[112] In this matter, the defence is not arguing due diligence nor mistake, but maintaining the flat denial that the collision alleged did not occur. For the reasons previously set out, I find that the collision did occur and that the defendant was the author of that collision.

Change Lane Not in Safety

[113] In terms of the charge of change lane not in safety, I find that the accident alleged did in fact that place, on Lawrence Avenue West, near Keele Street, in the City of Toronto on June 5, 2017. Lawrence Avenue West is a highway within the meaning of the HTA. I accept the testimony of Mr. Inacio that Mr. Ennis entered the curb lane he was travelling in, hit his vehicle with the back bumper of the Savana, returned to the left lane where he came from, and then cut him off again.

[114] During Mr. Ennis's testimony, it was unclear what lane he was travelling in, and he denied hitting Mr. Inacio's vehicle.

[115] Based on the evidence of Mr. Inacio, which I accept, I find that the essential elements of the offence of change lane not in safety have been made out beyond a reasonable doubt. I am entering a conviction on this charge.

Fail to Remain

[116] Based on the evidence I have heard, I am persuaded beyond a reasonable doubt that Mr. Ennis failed to remain at the scene of an accident. Both Mr. Inacio and Mr. Ennis testified about a confrontation in the Walmart parking lot, between them, and I accept Mr. Inacio's testimony that this confrontation was the result of Mr. Ennis's efforts to flee from the scene. I am entering a conviction on this charge.

Fail to Report

[117] I find that Mr. Ennis failed to report the accident, and that the damage which resulted was above the (then) $1000 threshold. I am satisfied beyond a reasonable doubt that Mr. Ennis failed to attend at the Collision Reporting Centre or take steps to contact Officer Li, when directed to do so in the police's letter to him dated June 7, 2017 (Exhibit 2). For reasons previously given, I reject Mr. Ennis's testimony that he attended at the Collision Reporting Centre and was told to return some 11 days later.

[118] I accept the damage to the BMW was in the range of $2723 (as estimated by Officer Li) up to a high of $4,000 (as estimated by Mr. Inacio). Regardless of whose estimate is more correct, both estimates are in excess of the (then) $1000 threshold.

[119] I therefore find that the essential elements of this offence of fail to report have been proven beyond a reasonable doubt, and I am entering a conviction on this charge.

Fail to Provide Required Information and Fail to Disclose Particulars of Insurance

[120] I accept the testimony of Mr. Inacio that he requested Mr. Ennis's documents and insurance subsequent to the accident, and that he refused to provide any such information. I reject the testimony of Mr. Ennis that Mr. Inacio failed to request these documents because he knew nothing had occurred as illogical and untrue. The only reasonable inference is that Mr. Inacio gave chase to prevent Mr. Ennis from escaping responsibility, and that despite confronting him and asking for his documents, Mr. Ennis simply walked into Walmart and ignored him. I am entering convictions on both of those counts, as well.

Order

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

Dated at Toronto, on October 2, 2019.

Mary A. Ross Hendriks, J.P.