CITATION: R. v. Dixon, 2021 ONCJ 426
DATE: August 10, 2021
COURT FILE No.: 0611-998-18-3270
ONTARIO COURT OF JUSTICE
Central West Region
BETWEEN:
HER MAJESTY THE QUEEN
Respondent on Appeal
— AND —
David dixon
Appellate on Appeal
Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on August 6, 2021
Reasons released on August 10, 2021
Ms. Tracy Mason.......................................................................................... for the Respondent
Mr. Volodymyr Menok...................................................................................... for the Appellate
SCHWARZL, J.:
REASONS ON POA APPEAL
1.0: INTRODUCTION
[1.] The appellate, David Dixon, appeals from his convictions for Failing to Remain and Driving While Suspended, contrary to sections 200(1)(a) and 53, respectively, of the Ontario Highway Traffic Act. Those convictions followed a trial on January 14, 2019 before Justice of the Peace S. Budaci in the Provincial Offences Court. Two witnesses testified for the prosecution, being an independent eyewitness, Mr. Laranjeiro, and a police officer, P.C. Paliuanan. No witnesses were called on behalf of the defence.
[2.] Mr. Dixon raises two grounds of appeal.
[3.] The first ground of appeal is that the learned Justice of the Peace erred in finding beyond a reasonable doubt that the appellate was the driver. This ground is divided into two parts. First, he submits that the Court relied on inadmissible evidence in concluding he was the driver; and second, that on the admissible evidence, all of which was circumstantial, it was unreasonable to find that he was the driver. The respondent Crown agrees that the learned Justice of the Peace improperly relied on some inadmissible evidence, but that this did not cause any substantial wrong or miscarriage of justice given the strength of the admissible circumstantial evidence.
[4.] The second ground of appeal is that the learned Justice of the Peace erred in finding beyond a reasonable doubt that either offence occurred on a “highway.” He argued that witnesses acknowledged that the area where road marks were found were on Zimmerman Road, which is a private road, and that the evidence of the eyewitness about the location of the driving was inconsistent with the evidence of the police officer. He submits that if the prosecution failed to prove on the criminal standard that the events happened on a highway, he must be acquitted of both charges. The respondent Crown submits that there was ample scope on the evidentiary record for the learned Justice of the Peace to conclude beyond a reasonable doubt that both offences occurred on a highway, being Regional Road 50. The Crown also argued that Zimmerman Road is a highway between its intersection with Regional Road 50 and the guardhouse located about 50 metres up Zimmerman Road.
2.0: THE FIRST GROUND OF APPEAL: IDENTIFICATION
[5.] Upon reviewing the transcript of evidence, the reasons of the learned Justice of the Peace, and in consideration of the arguments made on the appeal, I find that the conclusion that the appellate was the driver was reasonable and supported by the evidence.
[6.] There is no direct evidence that Mr. Dixon was the driver. The eyewitness who described the events could not identify the driver and could not even say if the person was male or female. However he gave the following detailed account of what he saw, and provided same to the officer on his arrival: a grey Mazda drove out of the subdivision on Zimmerman Road hitting everything in its path then it drove through a ditch on to Regional Road 50 breaking the rear axle and driver’s side wheel, and losing a bumper. The car then did a u-turn and drove back into the subdivision, striking the left, or wrong, side of the guardhouse and drove out of sight. When the officer arrived on scene, the witness told him what he had seen.
[7.] The officer came on scene after the accident. He made the following observations:
(a) he saw a bumper laying on Zimmerman Road, about 20 metres in from Regional Road 50;
(b) tire/drag marks and oil staining beginning on Zimmerman Road between the guardhouse and Regional Road 50 ending inside the garage of 23 Reddington Road;
(c) damage to two posts on the left side of the guardhouse, looking from Regional Road 50;
(d) inside the garage of 23 Reddington a grey Mazda was parked with the rear bumper missing, and the right rear tire and axle severely damaged;
(e) the car was warm to the touch;
(f) blood was seen on the driver’s door of the car;
(g) a splotch of blood was on the threshold of the passage door at the rear of the garage;
(h) there was blood staining on the door handle of the home’s front door;
(i) upon opening the door and calling out, an intoxicated man who was bleeding from his forehead came stumbling to the door;
(j) a woman identified as Jean Dixon also came to the door and appeared to be uninjured.
(k) when asked, the bloody man identified himself as David Dixon; and
(l) the licence plate of the car registered to a car owned by the appellate’s mother, Jean Dixon, with an address of 23 Reddington Road.
[8.] Furthermore, the prosecution filed a Certificate of Suspension (Trial Exhibit 2) that identified David Dixon of 23 Reddington Road as being a suspended driver at the time of the incident.
[9.] His Worship aptly and fairly compared the evidence of identification to a trail of breadcrumbs, leading from the scene of the accident directly to the appellate, akin to the fable of Hansel and Gretel. In reaching this conclusion, he properly relied on all the foregoing evidence in assessing the question of the identity of the driver.
[10.] However, the learned Justice of the Peace also improperly relied on the following evidence: that Mr. Dixon was identified by his mother, the appellate’s date of birth, and that Mr. Dixon, who was intoxicated and on suspension due to an impaired driving charge, would not want to identify himself. The evidence of the mother’s identification was hearsay and not admissible. The appellate’s date of birth, while on the Certificate of Suspension, was not otherwise attested to, making that piece of evidence irrelevant to the question of identity. Lastly, a motive to remain silent cannot be used as evidence of identity. Notwithstanding these errors, given the other evidence available to, and considered by, the learned Justice of the Peace, no substantial wrong or miscarriage of justice occurred.
[11.] In R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33, the Supreme Court of Canada stated that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits. In this case, the appellate submits that the evidentiary record is equally consistent with Mr. Dixon either being a passenger or being injured outside of the car accident. I disagree. The only other person associated with this severely damaged car was the appellate’s mother who was uninjured. The trail of blood from the car led to the only bloody person: the appellate. The appellate lived at that residence where the car was found. On the evidentiary record, and in the absence of any evidence to the contrary, the only reasonable inference available to the learned Justice of the Peace was that the appellate drove the car at the time of the accident, was injured and bloodied by the collision, and then drove the mangled car straight back to his house.
[12.] The first ground of appeal is dismissed.
3.0: THE SECOND GROUND OF APPEAL: WHETHER THE CROWN PROVED THE EVENTS OCCURED ON A HIGHWAY
[13.] The second ground of appeal has two aspects. The first is whether the learned Justice of the Peace made an error by finding beyond a reasonable doubt that the offences were committed on Regional Road 50, which the parties both agree is a highway. The second is whether Zimmerman Road was a highway.
[14.] In concluding that the offences occurred on a highway, the learned Justice of the Peace focussed entirely on the evidence of Mr. Laranjeiro who testified unequivocally that the driving started on Zimmerman Road, continued onto Regional Road 50 where the axle broke while doing a u-turn, then returned onto Zimmerman Road. His Worship stated in his reasons, “[T]he location of this particular matter is critical from the vantage point of this court. Having passed the stop sign and move onto Highway [sic] 50, the issue of whether or not [it is] a highway, whether this took place on Zimmerman Road or on Highway [sic] 50, frankly, is moot.” His Worship “placed the weight of [his] decision on Mr. Laranjeiro’s evidence on this point which [he] found clear, concise, and compelling.”[^1]
[15.] I agree with His Worship’s assessment of Mr. Laranjeiro’s evidence. The eyewitness was emphatic and certain that the car came off private property and onto a public highway. Taken in isolation, this evidence is compelling and conclusive that the driving occurred, in part, on a highway being Regional Road 50. However, when deciding the issue His Worship did not appear to consider the evidence of the police officer or the photos of the scene. Had he done so, I find that there would be a reasonable doubt that the driving took place on Regional Road 50.
[16.] Mr. Laranjeiro testified that there were no kerbs on Zimmerman until Regional Road 50[^2]. He also said that the car hit trees coming out of Zimmerman Road.[^3] Upon examining the first two photos of the scene, one can see concrete kerbs extending all the way from Regional Road 50 to the guardhouse on Zimmerman Road. It was the officer’s evidence that the car collided against the kerb, causing damage to the underside of the car.[^4] One can also see the absence of trees on Zimmerman Road between the guardhouse and Regional Road 50. The officer observed no damage to the ground or foliage in the area. While the eyewitness was sure of what he saw, he was clearly wrong on significant details such as kerbs and trees. These inconsistencies raise concerns about the overall reliability of the eyewitness testimony, including where the appellate drove.
[17.] Mr. Laranjeiro was as certain the car drove through a ditch onto Regional Road 50 as he was that the axle broke and the bumper fell off prior returning onto Zimmerman Road.[^5] The officer said it appeared from the debris and road markings that the car had lost its bumper after striking something on Zimmerman Road. He testified that the car appeared to do a u-turn on Zimmerman Road while heading back into the subdivision. He said the bumper was found about 20 metres onto Zimmerman Road from Regional Road 50[^6]. There was no evidence that the location of the bumper was where the collision occurred or whether the bumper was thrown there by the impact. The scene photos clearly show evidence of a u-turn a short distance in front of the guardhouse, which the officer testified was about 50 metres in from Regional Road 50.[^7] P.C. Paliuanan testified that the only visible road markings began near the guardhouse.[^8]
[18.] Given this review of the totality of the evidence of where the car drove, there is sufficient evidence from both the officer and the photos to cast meaningful doubt on the reliability of the sincere evidence of the eyewitness that the driving occurred on Regional Road 50. In particular, the eyewitness was sure the car broke its axle, dragging its rear wheel in a u-turn all on Regional Road 50. This is significantly contradicted by the other reliable evidence of the officer and the pictures which suggest that the damage happened on Zimmerman Road nearer to the guardhouse.
[19.] Having regard to the evidence as a whole, I find that it was unreasonable for the learned Justice of the Peace to hold that the eyewitness account was dispositive. If anyplace, the driving appears to have taken place entirely on Zimmerman Road between the guardhouse and its intersection with Regional Road 50. I find that there is a reasonable doubt that the driving took place beyond Zimmerman Road and onto Regional Road 50.
[20.] The success of the second ground of appeal is further contingent on an analysis of whether Zimmerman Road is a highway within the meaning of the Highway Traffic Act. Unless the prosecution has proven beyond a reasonable doubt that Zimmerman Road is a highway, there must be acquittals on both offences.
[21.] On reviewing the evidence, I find that there is a reasonable doubt that Zimmerman Road was a highway between the guardhouse and Regional Road 50. The officer testified that the location of the bumper was “possibly on a private road”[^9]. When asked by the learned Justice of the Peace if Zimmerman Road is a highway the officer said “No, I’m not sure…it seemed like a roadway normally travelled, to wit to me at the time it seemed like a highway…it’s got kerbs, signage all along Zimmerman and Reddington…in that private community.”[^10] The officer agreed with the prosecutor that Zimmerman Road would be a private driveway up to Regional Road 50.[^11]
[22.] When the prosecutor asked the officer if the public is prohibited from travelling on Zimmerman Road, the officer responded, “Although there is a gate, I have never seen an arm there and I’ve seen vehicles come in and out of there all the time, from my experience, throughout the day, throughout the night. And some are residents, some are not.”[^12] In reply, the defence presented a Google Map photo from 2011 of a sign next to the guardhouse that reads, “No Trespassing. Private Property. Vehicle traffic for residents, guests and deliveries only.”[^13]
[23.] In his reasons, the learned Justice of the Peace placed little weight on the No Trespassing sign due to its age and lack of confirmation that it was still in place at the time of this incident. One cannot blame the learned Justice of the Peace in going no further with the question of whether Zimmerman Road was a highway. He found the issue moot upon being convinced by Mr. Laranjeiro’s evidence that the driving occurred, in part, on Regional Road 50. Having found that the learned Justice of the Peace was in error that the driving definitely took place on Regional Road 50, I turn to the question of whether is was proven by the prosecution that Zimmerman Road was a highway in the relevant area and time.
[24.] Section 1 of the Ontario Highway Traffic Act defines a “highway” expansively by stating that it “includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof.”
[25.] The issue in this case is whether Zimmerman Road is a common or public place, any part of which is intended for or used by the general public. I find that on the evidentiary record, it is unclear whether or not Zimmerman Road between the intersection of Regional Road 50 and the guardhouse is a highway. Whether it was old or not, the No Trespassing sign is some evidence that the road is not public. Added to this is the presence of a guardhouse. By all accounts it is unmanned and has no barriers, but its existence is consistent with a private roadway rather than public one thereby being capable of raising a reasonable doubt as to its status as a highway.
[26.] The position of the guardhouse some 50 metres away from the intersection does not assist the prosecution because (a) it is clearly visible from the intersection thus alerting the public to private property ahead and (b) placing it right at the intersection would probably interfere with the flow of traffic coming on and off of Regional Road 50 if the guardhouse was occupied or the entrance controlled in some fashion at that point.
[27.] The road marks left by the appellate’s car were closer to the guardhouse than Regional Road 50, suggesting that even if the prosecutor was right about the lawful width of a Kings Highway there is still a reasonable doubt the accident and driving took place within that width.[^14]
[28.] The officer’s anecdotal evidence that he has witnessed traffic of residents and non-residents alike coming in and out of Zimmerman Road at all hours is irrelevant. Like a private driveway or parking lot for a shopping plaza, mere usage, even heavy usage, does not turn a private road into a public one without dedication of the land by the owner and acceptance by the public: Gill v. Elwood, 1969 304 (ON SC), [1969] 2 O.R. 49 (Co. Ct.). There was no evidence that the Town of Caledon or Region of Peel is responsible for repairing or maintaining any part of Zimmerman Road, which both parties acknowledge is the access point into a private subdivision.
[29.] Given that Zimmerman Road is an access point to a private community, I find that both the intended and actual use of the road beginning at its intersection with Regional Road 50 is for the ingress and egress of the private property of which it part and not for the general public. The predominate use of Zimmerman Road is as a private driveway for the residents of the community, not a public thoroughfare: Becamon v. Wawanesa Mutual Insurance Co., 2009 ONCA 113.
[30.] I find that the learned Justice of the Peace erred by holding there was not a reasonable doubt that these offences occurred on a “highway” as required by both charging sections.
[31.] The second ground of appeal is therefore allowed.
4.0: CONCLUSIONS
[32.] Although it was reasonable to hold that the appellate was driving while suspended when he fled the scene of an accident, I find that there is a reasonable doubt the appellate was driving on a highway at the time. As such, the appeal must be allowed.
[33.] Acquittals are entered on both the Fail to Remain and the Drive While Suspended charges.
[34.] I would like to thank both paralegals for their able and helpful submissions.
Richard H.K. Schwarzl,
Justice of the Ontario Court of Justice
[^1]: Trial Transcript, page 60, lines 22 to 27. [^2]: Trial Transcript, page14, lines 29 to 32; page 15, lines 1 to 3. [^3]: Trial Transcript, page 14, lines 21 to 28. [^4]: Trial Transcript, page 25, line 1 to 10. [^5]: Trial Transcript, page 7, lines 1 to 31. [^6]: Trial Transcript, page 22, lines 29 to 32. [^7]: Trial Transcript, page 31, lines 20 to 23; page 42, lines 5 to 7. [^8]: Trial Transcript, page 40, lines 12 to 14. [^9]: Trial Transcript, page 35, lines 26 to 30 [^10]: Trial Transcript, page 38, lines 18 to 32; page 39, lines 1 to 5. [^11]: Trial Transcript, page 43, lines 10 to 20. [^12]: Trial Transcript, page 44, lines 4 to 8. [^13]: Trial Transcript, page 45, lines 13 to 15, Trial Exhibit 3. [^14]: Regional Road 50, commonly called Highway 50, is not a Kings Highway as the prosecutor suggested. It became a Regional Road in March 1998 as per Regional Municipality of Peel By-law 26-98. Therefore, the definition of the width of a Kings Highway has no application in this case.