Ontario Court of Justice

Date: December 15, 2021 Court File No.: Cornwall, ON 3911-999-00-3659389B-00

In the Matter of an appeal under subsection 135 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended.

Between:

HER MAJESTY THE QUEEN Respondent

— AND —

ANDREW ZARANEK Appellant

Before: Justice D.A. Kinsella

Reasons for Judgment released on December 15, 2021

Counsel: L. Riviere, Prosecutor G. McDougall, agent for the appellant, Andrew Zaranek

On appeal from a conviction by Justice of the Peace Logue on September 9, 2019.

KINSELLA J.:

Overview

[1] On October 25, 2018 Andrew Zaranek was charged with operating a commercial vehicle and following too closely contrary to section 158(2) of the Highway Traffic Act (“HTA”).

[2] The matter proceeded to trial in front of Justice of the Peace Logue. Mr. Zaranek was represented by Mr. McDougall. After trial, the learned justice of the peace found Mr. Zaranek guilty and imposed the set fine and costs.

[3] Mr. Zaranek appeals on the basis that the learned justice of the peace erred in her finding of fact. He alleges that the learned justice of the peace was wrong in her conclusion that all the essential elements of the offence had been proven beyond a reasonable doubt. More particularly, he submits that there was no evidence before the court as to the speed the motor vehicle was travelling, an essential element of the offence under s. 158(2), and that the learned justice of the peace was wrong to take judicial notice of the speed.

[4] Ms. Riviere submits that speed is not an essential element, but rather an exemption created for following too closely. In the alternative, she submits the learned justice of the peace did not take judicial notice of the speed. Instead, she submits that the court made a reasonable conclusion based on all the evidence before it, particularly the video evidence.

Evidence at trial

[5] The Crown called two witnesses. Sergeant Matthew Eamer was assigned to the Ontario Provincial Police (“OPP”) aircraft enforcement unit. On October 25, 2018 he was working as a tactical flight officer operating a camera out of the OPP aircraft. He was observing traffic on Highway 401 primarily in the South Glengarry area.

[6] At approximately 10:10 am he observed a commercial motor vehicle following another vehicle too closely and made a video recording of what he observed. The vehicle was a green tractor-trailer towing a trailer with the word “Tropical” on it. He radioed his observations to Constable Lefaivre, who eventually stopped the vehicle, which was also captured on video.

[7] The video was played in court. It is approximately eight minutes long and of good quality, as the operator was able to zoom in on the vehicle in question. It is continuous and there are no obvious defects or edits. Sgt. Eamer testified that the camera system he used included measurement capabilities. This is shown by way of an elongated circle over the vehicles being monitored. The circle provides the distance being shown between the two vehicles. Throughout the video, the distance between the green tractor-trailer and the tractor-trailer gets as low as 10 m but only once does it go beyond 60 m, and only for a brief fraction of time. Throughout much of the video, the vehicles are less than 60 m apart.

[8] As for traffic, the video shows what could be described as light traffic for Highway 401. The green tractor-trailer and the one it is following are the only two commercial motor vehicles seen travelling on that portion of the roadway. They are times passed by other motor vehicles. There are no bad road conditions, accidents or construction sites that would delay or impede traffic in any way.

[9] Sgt. Eamer did not offer any evidence as to what speed the vehicle was travelling, nor was he asked what the posted speed limit on Highway 401 in South Glengarry was.

[10] Constable Maurice Lefaivre also testified. He was working that same day assisting aircraft patrol. He testified that the roads that day were dry and that the weather was overcast.

[11] At 10:10 am he received information from Sgt. Eamer that a tractor-trailer, green in colour with the word “Tropical” on the side of the trailer, had been following another commercial motor vehicle too closely.

[12] Cst. Lefaivre was further told that the vehicle was travelling eastbound on Highway 401 in South Glengarry just east of the Highway 2 exit. He located and stopped the tractor-trailer, which was being operated by Mr. Zaranek and eventually issued a POA ticket for the offence under s. 158(2).

[13] Constable Lefaivre did not offer any evidence as to what speed the vehicle was travelling, nor was he asked what the posted speed limit on Highway 401 in South Glengarry was.

[14] Although submissions were not transcribed, in her reasons Justice of the Peace Logue made reference to Mr. McDougall’s submission that the prosecutor had failed to establish an essential element of the offence, namely the speed that the vehicle was travelling, In response to that submissions, the learned justice of the peace concluded:

“I’m certainly satisfied having seen the video, that they are, that that was a commercial motor vehicle. And I’m also satisfied that the vehicles would have been travelling at a speed greater than 60 kilometres per hour.”

Scope of Appellate Review

[15] This appeal is pursuant to Section 135 of the Provincial Offences Act. An appeal under section 135 of Part I offences is conducted by means of a review. This is quite different than appeals from proceedings under Part III, as this court’s ability to intervene is not limited. This court is not required, for example, to find that the judgement at trial was unreasonable, unsupported by the facts, or erroneous in law. The language that defines the conduct of the appeal under s. 136(1) speaks in terms of a broad-based review with generous allowances to all parties to ensure that the issues are fully and effectively defined and fairly and completely considered. A judge sitting on appeal is entitled to consider all the evidence and come to her own conclusion (see R. v. Michaud 2015 ONCA 585).

[16] Despite these broad powers, there are some practical limitations. As noted by Justice Duncan in Regina v. Gill, [2003] O.J. No. 4761, at paragraph 10, “it could not have been the intention of the legislature that the Provincial Offences Appeal Court re-try every case.”

[17] That being said, deference to the trial judge is limited to findings of credibility and an assessment of the evidence is “at the core of the appeal judge's function under Part I of the POA”: R. v. Holton [2018] O.J. No. 3905 (OCJ), at paragraph 5.

Section 158 HTA

[18] Section 158 of the HTA sets out of the offence of follow too closely. Under subsection (1), which applies to all motor vehicles, a driver is not permitted to follow another vehicle “more closely than is reasonable and prudent having due regard for the speed of the vehicle and the traffic on and the conditions of the highway.”

[19] Subsection (2) places additional restrictions on commercial motor vehicles:

The driver of a commercial motor vehicle when driving on a highway at a speed exceeding 60 kilometres per hour shall not follow within 60 metres of another motor vehicle, but this shall not be construed to prevent a commercial motor vehicle overtaking and passing another motor vehicle.

[20] The two sections are clearly separate charging sections, and in this case the POA ticket issued clearly charged Mr. Zaranek with operating a commercial motor vehicle and committing an offence under subsection (2).

[21] I find, therefore, that proof of speed exceeding 60 km/h is an essential element for a charge laid under s. 158(2).

Judicial Notice

[22] In the recent decision of R. v. J.M. 2021 ONCA 150, the Court provided clear guidance concerning the legal test to follow to make findings of fact based on judicial notice:

i. judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court;

ii. judicial notice involves the acceptance of a fact or state of affairs without proof;

iii. facts judicially noticed are not proved by evidence under oath; nor are they tested by cross-examination;

iv. since judicial notice dispenses with the need for proof of facts, the threshold for judicial notice is strict; and

v. judicial notice applies to two kinds of facts:

(a) those that are so notorious or "accepted", either generally or within a particular community, as not to be the subject of dispute among reasonable persons; and

(b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy -- procedural fairness demands judicial restraint and transparency in the application of judicial notice.

Inferences and Video Evidence

[23] A trier of fact may draw inferences from the evidence adduced at trial. However, the inferences must be ones that can reasonably and logically be drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts is not a permissible inference but rather impermissible conjecture and speculation: R. v. Morrissey, [1995] O.J. No. 639 (OCA).

[24] Triers of fact are entitled to examine real evidence and draw conclusions that that evidence, including inferences: R. v. N.B.C. [2012] A.J. No. 785 (Alta.CA), at paragraphs 24 – 26.

[25] Videotape recordings are real evidence. As noted by the SCC in R. v. Nikolovski, [1996] 3 S.C.R. 1197, at paragraph 21: “the video camera is a silent and unbiased witness that accurate and dispassionately records what comes before it.”

[26] A trial judge’s review and interpretation of video recordings is generally considered to be factual findings, reviewable by an appellate court on the standard of palpable and overriding error: R. v. Abdi 2011 ONCA 446, [2011] O.J. No. 2639 (OCA).

Analysis

[27] I disagree with Mr. McDougall’s submission that the learned justice of the peace was taking judicial notice of the speed that the vehicles were travelling. Looking at her ruling in its entirety, it is clear she considered all of the testimony she heard and in particular relied on the video evidence presented.

[28] While not articulated by her, I have no difficulty with the assumption that she took judicial notice of the posted speed limit on Highway 401 in South Glengarry. Justice of the Peace Logue has been presiding in the east region for many years now. Highway 401 is a major artery through the east region, one that everyone travels on. I find that the fact that the posted speed limit on the 401 in this area is 100 kilometres per hour is a well-accepted one that could not be the subject of dispute among reasonable persons.

[29] Similarly, sitting as an appellate court on review, I too am comfortable taking judicial notice of the speed limit on Highway 401.

[30] The next question to be answered is: does the video support an inference, logically and reasonably drawn, that the commercial motor vehicle in question was operating at a speed of exceeding 60 km/h?

[31] In my view it does. The video shows traffic patterns on highway 401 for about eight minutes. Vehicles can be seen travelling smoothly in both the eastbound and westbound lanes. There is no sign of any vehicles braking suddenly, no traffic slowdowns, no construction zones, and no accidents. The roads are clear and dry. Smaller motor vehicles can be seen passing the commercial motor vehicle and over-taking them in a measured way. The tractor trailer being observed is driving in a consistent way throughout the video.

[32] What the video does not show is other vehicles coming upon Mr. Zaranek’s vehicle quickly. When vehicles do come up behind the tractor trailer, they do so gradually and pass in a similar manner.

[33] This constellation of facts, easily observed, amount to a reasonable inference that the traffic patterns on highway 401 on October 25, 2018 were standard, meaning that vehicles were travelling at a normal rate of speed. This also leads to a reasonable inference that the tractor-trailer being operated by Mr. Zaranek was driving at a speed in excess of 60 km/h.

Conclusion

[34] All the essential elements of this offence, including the essential element that the commercial motor vehicle was being driven at speeds in excess of 60 km/h, were proven beyond a reasonable doubt.

[35] The appeal is dismissed.

Released: December 15, 2021 Signed: Justice D.A. Kinsella