CITATION: R. v. Tavares, 2023 ONCJ 94

DATE: March 3, 2023

IN THE MATTER OF

the Highway Traffic Act, R.S.O. 1990, c. H.8

Between

His Majesty The King

prosecutor

and

Jordan Tavares

defendant

Ontario Court of Justice

Brampton, Ontario

Quon J. P.

Reasons for Judgment

Charges: (1) s. 144(7) H.T.A. – “fail to yield to pedestrian”.

(2) s. 53(1) H.T.A. – “driving while under suspension”.

Trial held: October 4 and November 17, 2022.

Judgment rendered: March 3, 2023.

Counsel:

M. Bayat, assistant Crown attorney

K. Markoff, legal representative for the defendant

Cases Considered or Referred To:

Fraser et al. v. The King, 1936 25 (SCC), [1936] S.C.R. 296 (S.C.C.).

R. v. Beatty, 2013 ONCJ 686, [2013] O.J. No. 5607 (Ont. C.J.), Harris J.

R. v. Dipnarine, 2014 ABCA 328, [2014] A.J. No. 1102 (Alta. C.A.).

R. v. Griffin, 2009 SCC 28, [2009] S.C.J. No 28 (S.C.C.).

R. v. Hayatibahar, [2022] O.J. No. 2850 (Ont. S.C.), Di Luca J.

R. v Mattatal, [2019] Q.J. No. 5140 (Court of Quebec (Crim. and Penal Div.)), Meredith J.Q.C.

R. v. McIvor, [2021] M.J. No. 169 (Man. C.A.).

R. v. Miller, 1988 4685 (ON CA), [1988] O.J. No. 253 (Ont. C.A.), Dubin A.C.J.O., Martin and Tarnopolsky JJ.A.

R. v. Montgomery, 2006 ONCJ 203, [2006] O.J. No. 2267 (Ont. C.J.), MacDonnell J.

R. v. Quick, [2015] O.J. No. 5433 (Ont. C.J.), McLeod J.

R. v. Valde, [2016] O.J. No. 6732 (Ont. C.J.), O’Donnell J.

R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 (S.C.C.).

Wild v. the Queen, 1970 148 (SCC), [1971] S.C.R. 101, [1970] S.C.J. No. 69 (S.C.C.).

Statutes, Regulations and Rules Cited:

Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 1(1), 41, 42, 52, 52(1), 52(1)(b), 52(2), 53(1), 53(1.1), 53(3), 144, 144(1), 144(5), 144(7), 144(18), 144(19)(a), 144(26), 144(28), and 144.1(1).

Highway Traffic Act, R.S.O. 1980, c. 198, s. 34.

Reference Material Cited or Considered:

A.W. Bryant, S.N. Lederman & M.K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham, Ontario: LexisNexis Canada Inc., 2009).

Paciocco, D.M. and Steusser, L. The Law of Evidence, 6ed. (Toronto, Ontario: Irwin Law Inc., 2011), p. 541.

Exhibits entered:

Exhibit "1" - Certified document from the Registrar of Motor Vehicles of the Ministry of Transportation dated August 16, 2022, which indicates that a male person named Jordan Tavares had his driver’s licence suspended effective September 12, 2019, for default of payment of fine and that this suspension was still in effect on July 28, 2020, and that a notice of suspension dated September 12, 2019 had been forwarded by mail on September 12, 2019 to Jordan Tavares to an address located at [removed for privacy] in Alliston, Ontario, which was the latest address on the records of the Ministry (2 pages).

Exhibit "2" - Google street map of the intersection of Steeles Avenue West and Lancashire Lane, in Brampton, in which Cst. Aljanazra drew symbols at the location of where he observed the black-coloured Dodge Ram pickup truck and the scooter in the south east corner of the intersection (1 page).

Exhibit "3" - a prosecution DVD containing a videotape recording of the intersection of Steeles Avenue West and Lancashire Lane, in Brampton, which shows Cst. Aljanazra speaking and interacting with a male person who is not wearing a shirt.

1. INTRODUCTION

[1] It was a sunny day. It was a windy day. It was July 28, 2020. For most of us, it would be an uneventful day. But it was not so for two people whose destinies would collide on that ill-fated day. It would be tragic for Martha Bosscher, an elderly woman who uses a mobility scooter to get around. She had been riding on her mobility scooter at approximately 2:22 p.m. that day and had just lawfully entered a pedestrian crosswalk when she was struck by a black-coloured pickup truck that was in the act of making a right-hand turn. It would also be a not so lucky day for the driver of that black-coloured pickup truck, who the prosecution alleges is Jordan Tavares (“the defendant”) and who now faces two charges under Ontario’s Highway Traffic Act. And because of this inauspicious event, the defendant’s legal representative contends that if the defendant were to be convicted of these two charges, then the defendant will not be able to legally drive a motor vehicle, and as a consequence, will lose his ability to make a living to support himself and his family.

[2] The intersection where the black-coloured pickup truck had struck the pedestrian is in the City of Brampton at Steeles Avenue West and Lancashire Lane, which is just south of the Shoppers World Shopping Centre and just west of Hurontario Street. After a police investigation of that pedestrian and motor vehicle collision, the police charged Jordan Tavares for committing two offences under the Highway Traffic Act, R.S.O. 1990, c. H.8, namely: (1) for “fail to yield to pedestrian”, contrary to s. 144(7) and (2) for “driving while under suspension”, contrary to s. 53(1).

[3] At trial, none of the witnesses who had testified had unequivocally stated that they had actually observed the defendant, Jordan Tavares, in the driver’s seat of that black-coloured pickup truck at the moment just before or at the moment the pickup truck had struck the elderly woman riding on her mobility scooter. However, the two civilian witnesses who did testify at the trial had stated with certainty that a specific male person had been the driver of the pickup truck, which had been based on their observations of the driver either exiting the pickup truck from the driver’s side door or standing next to the pickup truck, their interaction or conversation with that male person, and on their observations of the post-collision conduct and demeanour of that male person, especially of him removing his shirt, “freaking out”, being visibly shaken, holding his hands on his head, being nervous and apologetic, pacing, and using a cellphone to call 9-1-1 or saying that he had called 9-1-1.

[4] One of the civilian witnesses, Maven Sekhon, had testified that shortly after seeing some dark shadow fall at the front of the pickup truck she had observed a male person jump out and exit from the driver’s side door of the pickup truck and go to the front of the truck, although she did not actually see who had been actually driving the pickup truck or see who the person was that had been sitting in the driver’s seat of the pickup truck when the pickup truck had struck the pedestrian in the crosswalk. Maven Sekhon also said she had a short interaction or conversation with the person she had believed to be the driver of the pickup truck. Sekhon also described him as being a younger white male person with a beard and in his 30s and wearing black clothing and a black baseball cap. Sekhon also said the male person had taken off his shirt, was freaking out with his hands on his head, and had said that he had called 9-1-1.

[5] The other civilian witness, Joanne Power, had testified to having observed the elderly woman on the mobility scooter being struck by the black-coloured pickup truck, and then stated that the driver had exited the pickup truck after the collision, but did not testify to actually seeing the driver exit the pickup truck and had assumed the driver had done so because she had observed a male person standing next to the pickup truck shortly after the collision. Nor did Joanne Power testify to actually seeing who was in the driver’s seat of the black-coloured pickup truck when it struck the pedestrian in the crosswalk or having seen who had been driving the pickup truck. However, Joanne Power did testify to believing that the male person who had been standing next to the pickup truck had been the driver. In addition, Joanne Power had said she had interacted and spoke to the male person she had considered to be the driver of the pickup truck and had also testified that she had pointed out that specific male person she had identified and determined to be the driver of the pickup truck to a male police officer that was present at the scene of the collision. Power also said she had asked that male person if he had any pillows or towels in the pickup truck that could be used for the pedestrian and the male person took off his shirt and told Power to use his shirt. In addition, Power said the male person was on his phone calling 9-1-1, visibly shaken and pacing. Power also said the male person was white and in his 30s.

[6] Cst. Majd Aljanazra, who was called to attend the scene of the motor vehicle collision had testified that he had obtained the driver’s licence of a male person he had believed to be the driver of the black-coloured pickup truck. Cst. Aljanazra also said that a witness at the scene of the collision had pointed out the driver of the black-coloured pickup truck that had struck the pedestrian to him. And, as requested by Cst. Aljanazra, the defendant, Jordan Tavares, had provided his Ontario driver’s licence to Cst. Aljanazra. Cst. Aljanazra said that the name on the driver’s licence was “Jordan Tavares”. Cst. Aljanazra also said the person pointed out to him as the driver was nervous and apologetic, but cooperative. Furthermore, Cst. Aljanazra testified that he had reasonable and probable grounds to believe Jordan Tavares had been the driver of the black-coloured pickup truck that had struck the pedestrian and had committed the offence of “fail to yield to pedestrian” before he had asked Tavares for his driver’s licence. In addition, after making inquiries about Tavares’ driver’s licence on his police computer system, Cst. Aljanazra learned that Tavares’ driver’s licence was under suspension starting from September 12, 2019, for unpaid fines. Consequently, Cst. Aljanazra charged Jordan Tavares with committing the two Highway Traffic Act charges that are on trial. Moreover, Cst. Aljanazra testified that the person without a shirt on that he had been interacting with, which had also been captured on the videotape recording made on July 28, 2020, and entered as Exhibit #3, was the defendant, Jordan Tavares. Furthermore, Cst. Aljanazra also said that the black-coloured pickup truck was registered in the name of Mariva Tavares, who happens to have the same surname as the defendant.

[7] In their closing submissions, the defence contends that the prosecution has not proven beyond a reasonable doubt that Jordan Tavares had been the driver of the pickup truck who had struck the pedestrian, since none of the witnesses had actually observed the defendant sitting in the driver’s seat of the pickup truck that had struck the pedestrian or had observed the defendant actually driving the pickup truck at the time of the collision. This is sometimes referred to as the “no evidence of driving” defence. Moreover, the defence also suggests, as a result, that someone else could have been driving the black-coloured pickup truck that had struck the pedestrian and not the defendant, and that the defendant could have just been a passenger in the pickup truck. In response to the defence’s contention that the prosecution had failed to place the defendant in the driver’s seat of the pickup truck, and as such, failed to prove the identity of the driver of the pickup truck that struck the pedestrian, the prosecution submits that there had been sufficient circumstantial evidence that had been adduced by the prosecution that proves beyond a reasonable doubt that Jordan Tavares was indeed the driver of the pickup truck that had struck the pedestrian.

[8] Ergo, the principal issue that has to be decided in this trial is whether the prosecution has proven beyond a reasonable doubt that the defendant had been the person who had been driving the black-coloured pickup truck that had struck the pedestrian that had been riding on a mobility scooter while the pedestrian was in the crosswalk. Although the prosecution is relying on circumstantial evidence to prove that the defendant was indeed the driver of the pickup truck, and not on direct evidence from witnesses who had actually observed the defendant sitting in the driver’s seat of the pickup truck or driving the pickup truck, such direct evidence of the defendant being observed driving the pickup truck or sitting in the driver’s seat of the pickup truck at the time of the collision is not ultimately required by law to prove that the defendant had been the driver of the pickup truck at the material time. Rather, proof that is solely based on circumstantial evidence could in law sustain a finding that the defendant was the driver of that pickup truck beyond a reasonable doubt.

[9] On the use of circumstantial evidence, the Supreme Court of Canada in Fraser et al. v. The King, 1936 25 (SCC), [1936] S.C.R. 296, held at p. 310, that circumstantial evidence can be equally consistent with the innocence as well as with the guilt of the accused. The Supreme Court also considered the use of circumstantial evidence in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, in which Cromwell J. writing for the Supreme Court at paras. 35 to 43, had explained that the issue for finding guilt that is based on circumstantial evidence is the range of reasonable inferences that could be drawn from it. However, Cromwell J. also noted that if there are reasonable inferences from that circumstantial evidence other than guilt, then the Crown's evidence would not meet the proof beyond the reasonable doubt standard. Moreover, Cromwell J. explained that in assessing circumstantial evidence, inferences that are consistent with innocence do not have to necessarily arise from or depend on proven facts, since those inferences other than guilt may result or be inferred from a certain gap in the evidence. However, Cromwell J. did emphasize that from the evidence and the absence of evidence that is assessed logically and in light of human experience and common sense, those inferences other than guilt must be reasonable. In addition, Cromwell J. held that, when assessing circumstantial evidence, the trier of fact should also consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. Accordingly, Cromwell J. reasoned that the Crown may need to negative those reasonable possibilities, but that they do not certainly need to disprove every possible conjecture which might be consistent with innocence. But more importantly, Cromwell J. held that other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, and not on speculation.

[10] Furthermore, circumstantial evidence that can be relied on by a trier-of-fact as proof that a specific person is the driver of a specific motor vehicle could include such evidence as: (1) a motor vehicle collision has occurred and a person is observed standing outside the vehicle involved in the accident shortly after the accident or collision had occurred; (2) witnesses who appeared at the scene immediately following the accident or collision testified that they saw no other person in the motor vehicle or in the vicinity of the motor vehicle involved in the accident or collision other than the accused person and that the motor vehicle could not have gotten there without someone driving the vehicle; (3) injuries to the accused person from the accident or collision would be consistent with injuries that the driver or operator of the motor vehicle that had been involved in the accident or collision would have sustained; (4) keys to the motor vehicle that had been involved in the accident or collision were found in the possession of the accused person who was at the scene of the accident or collision; (5) the motor vehicle that had been involved in the accident or collision is registered in the name of the accused person; (6) some means to identify the accused person, such as a personal object or identification, had been found in the motor vehicle that had been involved in the accident or collision; or (7) fingerprint or DNA evidence of the accused person that had been found in the motor vehicle that had been involved in the accident or collision would show that the accused person had been in the driver’s seat or inside the motor vehicle that had been involved in the accident or collision.

[11] Ergo, in respect to the defence suggestion that someone else could have been driving the black-coloured pickup truck and not the defendant, for the reason that none of the witnesses had testified to having observed the defendant actually driving the pickup truck or sitting in the driver’s seat of the pickup truck has no logical basis and is mere speculation or conjecture. This conclusion is in consideration of and based on the absence of credible evidence that has been adduced at trial, that there had been another person that had been observed in the pickup truck with the defendant, or that another person had been seen exiting the pickup truck besides the male person that Maven Sekhon had observed exit from the driver’s side door of the pickup truck, or that another person had been observed in the company of the defendant or in the vicinity of the pickup truck after the collision had occurred. As Cromwell J. had held in R. v. Villaroman, other plausible theories or other reasonable possibilities from circumstantial evidence must be based on logic and experience that is applied to the evidence or the absence of evidence, and not on speculation. As such, the defence contention that someone else could have been driving the black-coloured pickup truck other than the defendant, as well as the contention that the defendant could have been a passenger in the pickup truck, is mere speculation or conjecture and not based on any reasonable inference that could be made from credible evidence that has been adduced at trial or from the absence of evidence. Furthermore, the defence contention that someone else could have been driving the black-coloured pickup truck and not the defendant, as an alternative way of looking at the case does not on the totality of the evidence raise any reasonable doubt about the defendant being the person who drove the pickup truck that had struck the pedestrian.

[12] On the other hand, when the testimony of Maven Sekhon, Joanne Power, and Cst. Aljanazra, are considered along with the videotape recording entered as Exhibit #3, there is a reasonable inference that arises from the chain of connections and links in the prosecution witnesses’ testimony and observations that establishes the identity of the driver of the black-coloured pickup truck as the defendant. There is also a consistency among the witnesses in their description of the male person identified as the driver of the black-coloured pickup truck as someone who is white and not wearing a shirt, in his 30s, behaving nervously or freaking out, being visibly shaken, pacing, and using his cellphone to call 9-1-1 or saying that he had called 9-1-1. Hence, in establishing the identity of the driver of the black-coloured pickup truck, the prosecution has successfully established a chain of proof of linked observations and testimony from their witnesses that are consistent and credible, and that when those circumstantial pieces of evidence are considered together, it establishes that the only reasonable inference from that circumstantial evidence is that the defendant, Jordan Tavares, is the driver of the pickup truck that had struck the pedestrian. This chain of circumstantial proof and the reasonable inferences that arise from those observations and testimony of the prosecution’s witnesses that establishes the identity of the driver of the pickup truck are the following:

(a) The chain of proof starts with the testimony of Maven Sekhon, who had only been a few feet away from the black-coloured pickup truck that had struck the pedestrian, when she had first observed the male person she identifies as the driver of the pickup truck, jump out and exit the black-coloured pickup truck from the driver’s side door and go to the front of the pickup truck, after Sekhon had observed a dark shadow fall in front of the pickup truck.

(b) For the second link in the chain of proof, Sekhon had stated that this male person she had identified and determined to be the driver of the pickup truck had also been “freaking out” and holding his hands on his head and told Sekhon he had called 9-1-1 but was not sure if they heard him, which is consistent with and similar to the behaviour and demeanour observed by the other prosecution witnesses.

(c) For the third link in the chain of proof, Sekhon had asked him if anyone had called 9-1-1 and she said that the male person that she had identified as the driver had replied that he had called 9-1-1 but was not certain they had heard him, which establishes that Sekhon had been close in proximity to this male person, so as to be able to speak with him and to be able to describe his appearance and demeanour.

(d) For the fourth link in the chain of proof, Sekhon said she had observed this male person take off his shirt, which is consistent with the other prosecution witnesses’ observations and description of the post-collision conduct and behaviour of the male person that had been identified by them as the driver of the pickup truck.

(e) For the fifth link in the chain of proof, Sekhon had described the male person she identified as the driver, as being a white male with a beard and in his 30s and wearing black clothing, which is consistent and similar with the other prosecution’s witnesses’ observations of the male person that had been identified as the driver of the pickup truck. The fact that the videotape recording entered as Exhibit #3 and the second prosecution witness Joanne Power’s description of the male person as the driver, who was not wearing a black baseball cap, is not contradictory evidence, as the male person could have easily taken off that baseball cap at some point after Sekhon had observed the male person wearing the baseball cap.

(f) For the sixth link in the chain of proof, Joanne Power had identified the driver of the black-coloured pickup truck as a male person she had observed standing next to the pickup truck shortly after Power had observed the pickup truck strike the pedestrian in the crosswalk.

(g) For the seventh link in the chain of proof, Power had described the male person she identified as the driver as being on his cellphone calling 9-1-1, visibly shaken and pacing, which is consistent with the other prosecution witnesses’ observations of the demeanour and post-collision conduct of the male person that had been identified by them as the driver of the pickup truck.

(h) For the eighth link in the chain of proof, Power also had interaction and conversation with the male person she had identified as the driver, when Power had first asked this male person if the pedestrian had been conscious and then asked if he had any blankets or towels in his pickup truck that could be used for the pedestrian, and in which the male person then took off his shirt and told Power to use his shirt. This is also consistent with Maven Sekhon’s testimony that she had observed the male person she had identified as the driver remove his shirt and the shirtless male person interacting with Cst. Aljanazra on the videotape recording entered as Exhibit #3, which Cst. Aljanazara said is Jordan Tavares.

(i) For the ninth link in the chain of proof, Power also testified that she had pointed out this male person, who had taken off his shirt and who she had identified and determined to be the driver of the pickup truck, to a male police officer at the scene of the collision, as the driver of the black-coloured pickup truck.

(j) For the tenth link in the chain of proof, Cst. Aljanazra confirmed that a witness had pointed out to him the driver of the black-coloured pickup truck that had struck the pedestrian.

(k) For the eleventh link in the chain of proof, Cst. Aljanazra had testified that he had obtained the Ontario driver’s licence from the male person who he had believed to be the driver of the pickup truck and that had been pointed out to him by a witness, and that the name on that driver’s licence had been “Jordan Tavares”.

(l) For the twelfth link in the chain of proof, Cst. Aljanazra testified and pointed out that the male person without the shirt on that he was interacting with in the videotape recording entered as Exhibit #3, is the person he had identified as Jordan Tavares.

(m) For the thirteenth link in the chain of proof, both Maven Sekhon and Joanne Power had testified that the male person that they had identified as the driver of the black-coloured pickup truck had not been wearing a shirt and that the male person who had been speaking with Cst. Aljanazra and that had been identified by Cst. Aljanazra as Jordan Tavares is shown not wearing a shirt on the videotape recording entered as Exhibit #3.

(n) For the fourteenth link in the chain of proof, Cst. Aljanazra said that the male person he believed was the driver of the pickup truck had been nervous and apologetic, but cooperative, which is consistent to the demeanour and post-collision behaviour that had been observed by the other prosecution witnesses.

(o) And, for the fifteenth link in the chain of proof, Cst. Aljanazra said that the black-coloured pickup truck was registered in the name of Mariva Tavares, who happens to have the same surname as the defendant, which is more than mere coincidence and is further circumstantial evidence that substantiates the reasonable inference that the driver of the black-coloured pickup truck that had struck the pedestrian had been Jordan Tavares.

[13] But more importantly, none of the witnesses who had testified in the trial had testified to having observed anyone else sitting in the black-coloured pickup truck or to having observed anyone else that had exited from the pickup truck, or to having observed that there had been anyone else standing near the black-coloured pickup truck or in the vicinity of the pickup truck or standing near or in the vicinity of the defendant, other than the male person Maven Sekhon had observed exiting the pickup truck from the driver’s side door. Moreover, from the credible evidence of the prosecution’s witnesses, the prosecution had negatived the alternative possibility or defence theory that someone else had been driving the black-coloured pickup truck and not the defendant, which had been contended to by the defence that had been based on the evidence that none of the prosecution witnesses had observed the defendant sitting in the driver’s seat or seen actually driving the pickup truck. Therefore, the defence contention that someone else could have been driving the black-coloured pickup truck, since none of the witnesses had observed the defendant sitting in the driver’s seat or seen actually driving the pickup truck, is not a reasonable inference that can be made from the circumstantial evidence, or absence of evidence, and is but mere speculation or conjecture.

[14] Furthermore, Joanne Power had also testified to having pointed out the male person she had identified and determined to be the driver of the black-coloured pickup truck to a male police officer who had arrived at the scene of the collision and that Cst. Aljanazra had confirmed that the driver of the pickup truck had been pointed out to him by a witness and that Cst. Aljanazra had identified that male person as “Jordan Tavares” through Tavares’ Ontario driver’s licence that Tavares had provided to him.

[15] Accordingly, based on the totality of the evidence, the prosecution has proven beyond a reasonable doubt that the defendant, Jordan Tavares, had been the driver of the black-coloured pickup truck that had struck the pedestrian while she was legally in the crosswalk. As such, since the prosecution has proven that the defendant, Jordan Tavares, was the driver of the black-coloured pickup truck that had struck the pedestrian in the crosswalk at Lancashire Lane and Steeles Avenue West on July 28, 2020, at 2:22 p.m., then the defendant is guilty of committing both offences of “fail to yield to pedestrian” and for “driving while under suspension”.

[16] The trial of the two Highway Traffic Act charges was held on October 4^th and November 17, 2022. At the trial, three witnesses testified for the prosecution. The defendant did not appear personally at the trial and had been represented by his legal representative. No witnesses had been called to testify for the defence. After closing arguments were concluded, judgment was reserved and adjourned until March 3, 2023, for judgment. These, therefore, are the written reasons for judgment:

2. THE CHARGES

[17] The defendant in this proceeding has been charged under a Part III information (#999-20-06956) sworn on September 23, 2020, with committing two offences under the Highway Traffic Act, R.S.O. 1990, c. H.8:

Jordan TAVARES (D.O.B removed for privacy] of [removed to protect privacy], ALLISTON, ON L9R 0G9

on or about the 28th day of July, 2020, at the City of Brampton in the said region [Central West Region] did commit the offence of:

(1) did drive a motor vehicle on Steeles Avenue, at the intersection of Steeles Avenue and Lancashire Lane, controlled by automatic traffic signals cause said vehicle to fail to yield the right of way to a pedestrian lawfully within an intersection,

Contrary to Section 144(7) of the Highway Traffic Act.

(2) AND FURTHER THAT Jordan TAVARES, on or about the 28th day of July, 2020, at the City of Brampton in the said region [Central West Region] at approximately 2:22 p.m. did unlawfully operate a motor vehicle, licence number AK93254 on a highway, namely on Steeles Avenue at Lancashire Lane, when his driver’s licence was suspended by operation of the Highway Traffic Act

Contrary Section 53(1) of the Highway Traffic Act.

3. FACTUAL BACKGROUND

(a) SUMMARY OF EVENTS

[18] On the afternoon of July 28, 2020, at about 2:22 p.m., Jordan TAVARES, the defendant, had been allegedly driving a black-coloured 2003 Dodge Ram pickup truck northbound on Lancashire Lane approaching Steeles Avenue West in the City of Brampton and travelling in the right turn lane. After coming to a stop at the stopline and for a red light, the black-coloured pickup truck had accelerated and moved forward on that red light to make the right turn onto Steeles Avenue West, when the pickup truck immediately collided with a pedestrian on an electric mobility scooter who was legally in the pedestrian crosswalk near the southeast corner of the intersection of Steeles Avenue West and Lancashire Lane.

[19] Also, just before the collision, the pedestrian on the electric mobility scooter was travelling westbound in the southside pedestrian crosswalk and had just entered onto the eastside of the pedestrian crosswalk on a pedestrian light that had just turned white when the black-coloured pickup truck that was in the right turn lane and the pedestrian on the electric mobility scooter collided.

[20] Furthermore, the collision had occurred on the eastside of the intersection in the eastbound lanes of Lancashire Lane, in the pedestrian crosswalk that is located on the southside of the intersection.

[21] In addition, there were two independent witnesses, who testified at the trial, that were at the intersection at the time of the collision. One witness, Joanne Power, had been driving a motor vehicle eastbound on Steeles Avenue West and had been stopped for a red light and had observed the black-coloured pickup truck accelerate from a stopped position and strike the pedestrian who was in the crosswalk and had the right-of-way. The other witness, Maven Sekhon, had been in a motor vehicle with a work colleague that had been northbound on Lancashire Lane and had been stopped for a red light and had observed the black-coloured pickup truck pull up behind them in the right turn lane and then stop at the stopline, when Sekhon testified at trial that she had observed a dark shadow fall in front of the pickup truck and then a male person jump out and exit from the driver’s side door of the pickup truck and go to the front of the pickup truck.

[22] After the collision, people at the scene immediately called the 9-1-1 operator for emergency assistance. Shortly afterwards, Peel Regional police officers and emergency personnel arrived and attended to the pedestrian who had had been riding on the electric mobility scooter that had been struck by the black-coloured pickup truck. The pedestrian had been lying on the ground and bleeding.

[23] The police also cordoned off the area and began an investigation. The pedestrian who had been struck by the black-coloured pickup truck was then taken by ambulance to the hospital.

[24] Before the pedestrian had been taken away by ambulance, Joanne Power testified at trial that she had approached the male person she had identified as the driver of the black-coloured pickup truck and had asked him if he had any pillows or towels in his pickup truck that could be used for the pedestrian who was lying on the ground and Power then said that the male person took off his shirt and had told Power to use his shirt. Joanne Power also testified that she had pointed out the male person that she had identified and determined to be the driver of the black-coloured pickup truck to a male police officer at the scene of the collision. Cst. Majd Aljanazra in his testimony confirmed that one of the witnesses at the scene of the collision had pointed out the driver of the black-coloured pickup truck to him. Cst. Aljanazra then obtained an Ontario driver’s licence from the male person he had believed to be the driver of the pickup truck that struck the pedestrian in the crosswalk and that had been pointed out to him and had verified that the identity of that male person was “Jordan Tavares”. After Cst. Aljanazra had interviewed witnesses, and after completing his investigation of the collision, he decided to charge Jordan Tavares, the defendant, with committing two Part III offences: (1) the offence of “fail to yield to pedestrian”, contrary to s. 144(7) of the Highway Traffic Act and (2) “driving while under suspension”, contrary to s. 53(1) of the Highway Traffic Act.

[25] A Part III information was then sworn on September 23, 2020, and the defendant was served with a summons informing him of the charges and of the date, location, and time of his first appearance in court, which was set for the Brampton Provincial Offences Courthouse.

[26] Eventually, the trial of this charge commenced on October 4, 2022. At the trial, three witnesses testified. They are, in the order that they testified: (1) Maven Sekhon, a witness who had been in a motor vehicle northbound on Lancashire Lane that had been stopped third in line for a red light at the intersection and at the time of the collision; (2) Joanne Power, a witness who had been driving eastbound on Steeles Avenue West and who had been stopped for a red light at the intersection, had observed the black-coloured pickup truck strike the pedestrian on the mobility scooter when her traffic light had turned green and when the pedestrian had been lawfully in the crosswalk, and who had pointed out the male person she had identified as the driver of the pickup truck to a male police officer; (3) Cst. Majd Aljanazra, a police officer of the Peel Regional Police, who had obtained the driver’s licence from the defendant and who had charged the defendant with the two Highway Traffic Act charges as the driver of the black-coloured 2003 Dodge Ram pickup truck that had collided with the pedestrian on an electric mobility scooter in the crosswalk.

[27] On the second day of trial held on November 17, 2022, the prosecution had been permitted to introduce a videotape recording taken of the intersection at Lancashire Lane and Steeles Avenue West in the City of Brampton, which had been recorded looking in a southerly direction, and which had been entered as Exhibit #3. The videotape recording had shown a shirtless male person speaking and interacting with Cst. Aljanazra, and was being admitted as evidence to show what the defendant physically looked like and what the male person had been wearing when interacting and speaking with Cst. Majd Aljanazra. Cst. Aljanazra had testified that the male person without a shirt on in the videotape recording was the defendant, Jordan Tavares.

[28] At the onset of the trial on October 4, 2022, the defence had made a motion to adjourn the trial as the defendant was not present for the trial. The motion was denied as civilian witnesses had appeared physically in the courthouse and virtually for the trial. After the civilian witnesses had completed their testimony and after Cst. Aljanazra had testified, the trial was adjourned to November 17, 2022, to allow the defendant to appear and testify, if the defendant had wished to testify, and also for the defence to obtain a transcript of the testimony of the witnesses on the first day of trial to assist the defendant in case he decided to testify. On the second date of the trial on November 17, 2022, the defendant did not appear at the trial and the trial had continued with the prosecution being allowed to adduce videotape evidence of Cst. Majd Aljanazra and the defendant interacting in order to show the physical appearance of the defendant and what the defendant had been wearing at the time of his interaction with Cst. Majd Aljanazra. The civilian witnesses also reappeared on the second day of the trial in case the defendant did appear for the second day of trial, so that the prosecution could potentially recall the civilian witnesses for an “in dock” identification of the defendant before the defence would be given an opportunity to call a defence. However, the prosecution did not recall those civilian witnesses to testify on the second day of the trial.

[29] After the prosecution had closed its case, the defence did not call any further witnesses for the trial, so that final submissions were then commenced by both the prosecution and defence. After final submissions were completed, judgment had then been reserved and adjourned to March 3, 2023, for judgment.

(b) DESCRIPTION OF THE INTERSECTION WHERE THE COLLISION OCCURRED

[30] The collision between the black-coloured pickup truck and the pedestrian, who had been riding on a mobility scooter, had occurred in the southside pedestrian crosswalk that is located at the intersection of Lancashire Lane and Steeles Avenue West in the City of Brampton. This intersection is situated just south of the Shoppers World Shopping Centre and just west of Hurontario Street. It is also described as a large and busy intersection that is controlled by automatic traffic lights.

[31] At the time of the collision between the black-coloured pickup truck and the pedestrian, the traffic light at the intersection of Lancashire Lane and Steeles Avenue West was operating properly. Cst. Aljanazra had testified that he had observed several cycles of the automatic traffic light while he was present at the intersection and that it had been operating normally on July 28, 2020.

[32] Steeles Avenue West is a road that is an east-west road while Lancashire Lane is a north-south road. There are also pedestrian crosswalks marked and painted on the road surface on each side of the intersection, as well as white stop lines that are painted on the road surface for each direction of traffic.

[33] When the collision had occurred with the pedestrian on the mobility scooter, the black-coloured pickup truck had been south of Steeles Avenue West and traveling northbound on Lancashire Lane. For northbound traffic on Lancashire Lane that is on the southside of Steeles Avenue West there is one through lane for northbound traffic, a left-turn lane, and a right-turn lane. For southbound traffic on Lancashire Lane on the southside of Steeles Avenue West there are two southbound lanes, with one being a lane dedicated for left turns. Steeles Avenue West at that intersection is comprised of 3 westbound lanes and 4 eastbound lanes. For westbound traffic on Steeles Avenue West there is also a dedicated left-turn lane.

(c) WEATHER CONDITIONS AT THE TIME OF THE COLLISION.

[34] For the weather conditions at the time, it had been sunny and windy.

(d) ROAD CONDITIONS AT THE TIME OF THE COLLISION.

[35] The roads were dry and clear at the time of the collision.

(e) SUMMARY OF TESTIMONY

[36] The following is a summary of the testimony given by the three prosecution witnesses who testified in the trial:

(1) Maven SEKHON, a witness who had been in a motor vehicle northbound on Lancashire Lane just south of Steeles Avenue at the time of the collision between the pickup truck and the pedestrian.

[37] Maven Sekhon testified in person in the courtroom. She said that she had been in a motor vehicle with her work colleague that was northbound in the center lane on Lancashire Lane and going straight through as she reached the intersection at Steeles Avenue. Sekhon also said that she was in a motor vehicle that was stopped third in line for a red light at the intersection. Sekhon also said she had observed a black or dark coloured pickup truck drive pass her to her right in the right-turn lane and then come to a stop as the pickup truck approached the stop line, and that the pickup truck had been intending to turn right at Steeles Avenue. She further said she then saw a dark shadow fall in front of the pickup truck, at first thinking that it was the truck’s bumper. She then said that she saw a male person jump out and exit from the driver’s side door of pickup truck and go to the front of the pickup truck. However, when her motor vehicle drove past the front of the pickup truck, she realized that the dark shadow had been a person on a scooter. Sekhon then said that she and her colleague parked their motor vehicle and then returned to help the pedestrian. Sekhon also said that when she had asked if anyone had called 9-1-1, the male person that she had identified as the driver of the pickup truck had told Sekhon that he had called 9-1-1, but had not been sure if anyone had heard him.

[38] Furthermore, Sekhon said the male person she had observed exit from the driver’s side door of the pickup truck and who she identified and determined was the driver of the black-coloured pickup truck that had struck the pedestrian was white, a younger guy with a beard that was about in his 30s, wearing black clothing and a black baseball cap. She also said that the male person had also been “freaking out”, holding his hands on his head, and had told Sekhon that he had called 9-1-1. Sekhon also said that she did not recall if anyone else had exited the pickup truck and also did not recall if the male person who had exited from the driver’s side door of the pickup truck had interacted with the police. Moreover, Sekhon also testified that she had observed that the male person she had identified and determined to be the driver of the pickup truck take off his shirt. In addition, she said that she had not been able to see into the driver’s window of the pickup truck and did not observe who had been driving or sitting in the driver’s seat of the black-coloured pickup truck when it drove past her on her right.

(2) Joanne POWER, a witness who had been driving eastbound on Steeles Avenue West and stopped first in line for a red light at Lancashire Lane and had observed a black-coloured pickup truck strike a pedestrian on a scooter in the crosswalk.

[39] Joanne Power had testified in the trial by Zoom. Power had said that she had been driving eastbound on Steeles Avenue and had been stopped for a red light at the intersection where the collision occurred. She also said that when her light had turned green, she had observed a black-coloured pickup truck that had been trying to make a right turn onto Steeles Avenue West strike a pedestrian on a scooter in the crosswalk. Furthermore, she said that the pickup truck had been making a right turn to go toward Hurontario Street and that the pickup truck had a red light on his side, as Power had the green light. Power then said that when the pickup truck had struck the pedestrian, the pedestrian had been ejected from the scooter and landed on the road. In addition, Power said that the pedestrian on the scooter had the right-of-way since the pedestrian light had turned white for the pedestrian. Power also said that the scooter had been under the pickup truck. In addition, she said that the pickup truck had stopped, but then accelerated and had struck the pedestrian instantly. Furthermore, Power said that she had observed a male person standing next to the black-coloured pickup truck that had struck the pedestrian and using his cellphone to call 9-1-1, who she had identified and determined to be the driver of the pickup truck. In addition, Power said that she had parked her motor vehicle and then went to the area where the pedestrian had been lying on the ground and bleeding from her head. Power then said she had asked the male person she had identified and determined to be the driver of the black-coloured pickup truck if the pedestrian was conscious and Power said the male person had responded that he did not know.

[40] Furthermore, Joanne Power had said that she did not see anyone else in the black-coloured pickup truck. When asked if she had observed the male person she had identified and determined to be the driver of the pickup truck actually exit the pickup truck once the truck had hit the pedestrian, she responded that she had observed the male person standing next to the truck and she said that had been the reason why she knew that he had exited from the truck. Power also said that she had assumed this male person standing next to the pickup truck, and on his cellphone calling 9-1-1, was the driver of the black-coloured pickup truck, and had described him as 5 feet and 8 inches tall, thin, and with short hair. She also said that she had pointed out the male person she had identified and determined to be the driver of the pickup truck to the male police officer who was at the scene of the collision.

[41] In addition, Joanne Power had testified that she had also asked the male person she had identified as the driver of the pickup truck if he had any pillows or towels in the pickup truck that could be used for the pedestrian and she said that the male person had taken off his shirt and had stated to her, “use this”. She also said this male person who she identified as the driver of the pickup truck had been visibly shaken, on his phone calling 9-1-1, and pacing.

(3) Cst. Majd Aljanazra, a police officer from the Peel Regional Police Service, who had charged the defendant with committing the two Highway Traffic offences on July 28, 2020

[42] Cst. Majd Aljanazra had testified in person at the trial. He said he had received a call about a motor vehicle collision at Steeles Avenue and Lancashire Lane in Brampton at about 2:22 p.m. When he arrived at that intersection less than 5 minutes later, Cst. Aljanazra said he had observed a black-coloured 2003 Dodge Ram pickup truck on Lancashire Lane south of Steeles Avenue on the pedestrian crossover. He also said he had observed a red scooter underneath the front of the truck and an elderly female, who was bleeding, on the ground in front of the truck by the scooter. In addition, Cst. Aljanazra testified that the elderly female pedestrian has since passed away, but that she had been still alive after being struck by the black-coloured pickup truck and had been taken to the hospital by ambulance.

[43] In the voire dire held for determining the voluntariness of utterances and statements made by the defendant to Cst. Aljanazra, Cst. Aljanazra had said that a witness had pointed out a male person to him as the driver of the black-coloured pickup truck that had struck the pedestrian. In addition, Cst. Aljanazra said that the driver of the pickup truck was a young white male and that he had been cooperative, but had seemed nervous. Cst. Aljanazra also said the male person had been apologetic to him. Furthermore, Cst. Aljanazra said he had been with that male person for over an hour. Cst. Aljanazra further said that he had believed that this male person was the driver of the black-coloured pickup truck and had asked the male person for his identification. More importantly, Cst. Aljanazra said he did not provide a caution to the male person even though Cst. Aljanazra had said that he had reasonable and probable grounds to believe that an offence had been committed by the male person before he started speaking with the male person. However, the prosecution submitted that they would not rely on any utterances or statements that the defendant had made to Cst. Aljanazra.

[44] Moreover, Cst. Aljanazra said that the male person who he had believed was the driver of the black-coloured pickup truck had identified himself with an Ontario driver’s licence in the name of “Jordan Tavares” with a date of birth of [removed for privacy] and with an address in Alliston, Ontario. Cst. Aljanazra further said that the photograph on the driver’s licence had matched the likeness of the male person he was speaking to. Moreover, Cst. Aljanazra said that he did not observe anyone else with Jordan Tavares or anyone else in the black-coloured pickup truck. Cst. Aljanazra also said that the black-coloured pickup truck was registered in the name of Mariva Tavares.

(4) The videotape recording entered as Exhibit #3

[45] The videotape recording that had been recorded on July 28, 2020, that covered the time around 2:20 p.m. and entered as Exhibit #3 had been obtained from a video camera from a business nearby to the intersection of Lancashire Lane and Steeles Avenue and shows Cst. Aljanazra interacting with a shirtless and white male person in the intersection near the black-coloured pickup truck. Cst. Aljanazra had testified that the male person without a shirt on, who he had been interacting with on the videotape recording, was the defendant, Jordan Tavares. The video also shows that it was sunny and very windy at the time that Cst. Aljanazra had been interacting with the defendant, Jordan Tavares. The videotape recording of Cst. Aljanazra interacting with the defendant was adduced by the prosecution to corroborate the description of the driver of the black-coloured pickup truck that had struck the pedestrian, which had been attested to by both Maven Sekhon and Joanne Power.

4. APPLICABLE LAW

[46] The offence of “fail to yield to pedestrian” is contrary to s. 144(7) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which provides that when a driver is permitted to proceed, the driver shall yield the right of way to pedestrians lawfully within a crosswalk [emphasis is mine below]:

Yielding to pedestrians

144(7) When under this section a driver is permitted to proceed, the driver shall yield the right of way to pedestrians lawfully within a crosswalk.

[47] In addition, the following definitions contained in s. 1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, are relevant to this proceeding:

1(1) In this Act,

“crosswalk” means,

(a) that part of a highway at an intersection that is included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the roadway, or

(b) any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface;

“highway” 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;

“intersection” means the area embraced within the prolongation or connection of the lateral curb lines or, if none, then of the lateral boundary lines of two or more highways that join one another at an angle, whether or not one highway crosses the other;

“pedestrian crossover” means any portion of a roadway, designated by by-law of a municipality, at an intersection or elsewhere, distinctly indicated for pedestrian crossing by signs on the highway and lines or other markings on the surface of the roadway as prescribed by the regulations;

“roadway” means the part of the highway that is improved, designed or ordinarily used for vehicular traffic, but does not include the shoulder, and, where a highway includes two or more separate roadways, the term “roadway” refers to any one roadway separately and not to all of the roadways collectively;

[48] Furthermore, the term, “intersection”, for the purposes of offences set out in s. 144 of the Highway Traffic Act is also defined in s. 144(1), which states that where there is a pedestrian crosswalk indicated by markings on the roadway then the pedestrian crosswalk forms part of the intersection:

Traffic control signals and pedestrian control signals

144(1) In this section,

“intersection” includes any portion of a highway indicated by markings on the surface of the roadway as a crossing place for pedestrians; (“intersection”)

[49] In addition, under s. 144(18) of the Highway Traffic Act, motorists are legally required to stop for a red traffic light and not to proceed unless they have a green light:

Red light

144(18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown.

[50] Also, not only are motorists who approach an automatic traffic light showing a red light are legally required to stop, but they must do so at or before a specific location. The specific locations where the motorist must stop is set out in s. 144(5) of the Highway Traffic Act, R.S.O. 1990, c. H.8:

Where to stop – intersection

1445 A driver who is directed by a traffic control signal erected at an intersection to stop his or her vehicle shall stop,

(a) at the sign or roadway marking indicating where the stop is to be made;

(b) if there is no sign or marking, immediately before entering the nearest crosswalk; or

(c) if there is no sign, marking or crosswalk, immediately before entering the intersection.

[51] The Highway Traffic Act also provides under s. 144(19)(a) an exception to the legal requirement for motorists to stop for a red traffic light and not to proceed unless they have a green light when the motorist is making a right turn. However, the motorist must stop their vehicle first and yield the right of way to traffic lawfully approaching so closely that to proceed would constitute an immediate hazard [emphasis is mine below]:

Exception — turn

144(19) Despite subsection (18) and subject to subsection (14), a driver, after stopping his or her vehicle and yielding the right of way to traffic lawfully approaching so closely that to proceed would constitute an immediate hazard, may,

(a) turn to the right; or

(b) turn to the left from a one-way street into a one-way street,

without a green indication being shown.

[52] In addition, s. 144(28) of the Highway Traffic Act provides that pedestrians who have lawfully entered a roadway in order to cross the roadway have the right of way over vehicles:

Pedestrian right of way

144(28) Every pedestrian who lawfully enters a roadway in order to cross may continue the crossing as quickly as reasonably possible despite a change in the indication he or she is facing and, for purposes of the crossing, has the right of way over vehicles.

[53] Moreover, at an intersection controlled by a traffic light and where pedestrian control signals are installed, a pedestrian under s. 144(26) of the Highway Traffic Act is permitted to lawfully enter a roadway to cross the roadway when the pedestrian control signal shows a “walk” indication:

Pedestrian control signals — walk

144(26) Where pedestrian control signals are installed and show a “walk” indication, every pedestrian facing the indication may cross the roadway in the direction of the indication despite subsections (24) and (25).

[54] Furthermore, under s. 144.1(1) of the Highway Traffic Act, upon conviction for a first offence, the penalty for contravening s. 144(7) (“fail to yield to pedestrian”) is a fine of not less than $300 and not more than $1,000, and for each subsequent offence, to a fine of not less than $500 and not more than $1,000:

Penalty for certain offences

144.1(1) Every person convicted of an offence under subsection 140(1), 140(3), 144(7) or 176 (3) is liable,

(a) for a first offence, to a fine of not less than $300 and not more than $1,000; and

(b) for each subsequent offence, to a fine of not less than $500 and not more than $1,000.

Same

(2) An offence referred to in subsection (1) committed more than five years after a previous conviction for an offence referred to in that subsection is not a subsequent offence for the purposes of subsection (1).

[55] In addition, the offence of “driving while under suspension” is contrary to s. 53(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which provides that every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable for a first offence, to a fine of not less than $1,000 and not more than $5,000, and for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000 or to imprisonment for a term of not more than six months, or to both. In addition, under s. 53(3), the driver’s licence of a person who is convicted of an offence under s. 53(1) or s. 53(1.1) is thereupon suspended for a period of six months in addition to any other period for which the licence is suspended, and consecutively thereto [emphasis is mine below]:

Service of notice of licence suspension

52(1) Where a person’s driver’s licence is suspended, notice of the suspension is sufficiently given if delivered personally or,

(a) in the case of a suspension under section 41 or 42, sent by registered mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry;

(b) in the case of all other suspensions, sent by mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry.

Deemed date of service

(2) Notice sent by registered mail under clause (1) (a) or by mail under clause (1) (b) shall be deemed to have been given on the seventh day after the mailing unless the person to whom the notice is sent establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice.

Regulations

(3) The Lieutenant Governor in Council may make regulations,

(a) prescribing other methods of service that may be used in the case of a suspension described in clause (1) (a) or a suspension described in clause (1) (b) and prescribing the day on which the notice sent or delivered by such other means shall be deemed to have been given;

(b) prescribing means of proving that a notice was given by a method permitted by subsection (1) or by a method permitted by regulation.

Driving while driver’s licence suspended

53(1) Every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable,

(a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and

(b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000,

or to imprisonment for a term of not more than six months, or to both.

Same

(1.1) Despite subsection (1), every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under section 41 or 42, even if it is under suspension at the same time for any other reason, is guilty of an offence and on conviction is liable,

(a) for a first offence, to a fine of not less than $5,000 and not more than $25,000; and

(b) for each subsequent offence, to a fine of not less than $10,000 and not more than $50,000,

or to imprisonment for a term of not more than six months, or to both.

Subsequent offence

(2) Where a person who has previously been convicted of an offence under subsection (1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1) (b).

Same

(2.1) Where a person who has previously been convicted of an offence under subsection (1.1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1.1) (b).

Licence suspended

(3) The driver’s licence of a person who is convicted of an offence under subsection (1) or (1.1) is thereupon suspended for a period of six months in addition to any other period for which the licence is suspended, and consecutively thereto.

5. ISSUES

[56] The following issues have arisen for the determination of whether the prosecution has proven beyond a reasonable doubt that the defendant had committed the two offences of “fail to yield to pedestrian” and “driving while under suspension”:

(a) On the circumstantial evidence adduced at trial, has the prosecution proven beyond a reasonable doubt that the defendant, Jordan Tavares, was the driver of the black-coloured pickup truck that had struck the woman on a mobility scooter in a pedestrian crosswalk?

(b) Does the prosecution have the onus to prove that the defendant had actually received the suspension notice from the Ministry of Transportation beyond a reasonable doubt in order to prove the offence of drive under suspension under s. 53(1) of the Highway Traffic Act?

6. ANALYSIS

[57] The defendant has been charged for committing two Highway Traffic Act offences. The offences are (1) “fail to yield to pedestrian”, contrary to s. 144(7) and (2) for “driving while under suspension”, contrary to s. 53(1). Both offences are strict liability offences in which the prosecution only has the legal burden to prove that the defendant has committed the actus reus of both offences beyond a reasonable doubt. It does not have to prove any mens rea or fault element in respect to the defendant. If the prosecution proves that the defendant committed the actus reus of both offences beyond a reasonable doubt, then to avoid being convicted of the two offences, the defendant has the legal burden to prove on a balance of probabilities the defence of due diligence by establishing that he took all reasonable care in the circumstances to avoid committing the two offences or that he had an honest but mistaken belief in facts which, if true, would render the act innocent.

[58] In the case at bar, a pedestrian that was riding on a mobility scooter had been struck by a black-coloured pickup truck on July 28, 2020, at approximately 2:22 p.m. The weather had been sunny and windy and the roads were dry at the time of the collision. The pedestrian crosswalk is located on the southside of the intersection of Steeles Avenue West and Lancashire Lane in the City of Brampton. Steeles Avenue West is an east-west highway while Lancashire Lane is a north-south highway located in the City of Brampton. The intersection is controlled by an automated traffic light. The black-coloured pickup truck was northbound on Lancashire Lane and had come to a stop at the stopline and had been in the process of making a right turn onto Steeles Avenue West in order to go eastbound towards Hurontario Street when it struck the pedestrian in the crosswalk.

[59] The prosecution contends that the driver of the black-coloured pickup truck is the defendant while the defence contends that the prosecution has failed to prove that the defendant was the driver, since none of the witnesses had observed the defendant sitting in the driver’s seat or that the defendant had been observed by them actually driving the black-coloured pickup truck that had struck the pedestrian.

[60] Ergo, the principal issue that has to be decided is whether the prosecution has proven beyond a reasonable doubt that the defendant was the driver of the black-coloured pickup truck that had struck the pedestrian. To make this determination, the “fail to yield to pedestrian” charge will be analyzed first. If the prosecution proves that the defendant was the driver beyond a reasonable doubt, then the defendant will be guilty of that offence. And, if the defendant was the driver of the pickup truck, then the second charge of “driving while under suspension” will be analyzed to determine if the defendant has committed that offence. However, if the prosecution fails to prove that the defendant was the driver of the black-coloured pickup truck beyond a reasonable doubt then the defendant will be acquitted of both of the Highway Traffic Act charges.

(A) What colour was the traffic light for northbound traffic on Lancashire Lane when the pedestrian had been struck by the black-coloured pickup truck?

[61] Maven Sekhon had testified that she had been in a motor vehicle with her work colleague that had been going down Lancashire Lane toward the Shoppers World plaza and that they were stopped for a red light and waiting for the traffic light to turn green when a black-coloured pickup truck had pulled up behind them and then entered the right lane. Sekhon then said that the pickup truck had stopped to turn right and then she said that she had observed a dark shadow fall in front of the pickup truck, assuming that it was the bumper of the pickup truck. She then said that when her traffic light had turned green she had wondered why the two cars in front of her were not moving and that when she and her colleague had started to edge up, she said she could see that it was not the bumper that fell but a person she saw lying on the ground and a scooter that was partly under the pickup truck (see lines 22 to 32 on p. 4, lines 1 to 10 on p. 5, lines 17 to 32 on p. 7, and lines 1 to 14 on p. 8 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: I just - please tell the court what happened on that date that brings you to court today.

Maven Sekhon: So, on that day my friend Sabrina and I, we work at the Real Canadian Superstore, and we were going on break. We were going down Lancashire into the Shoppers World Plaza. The - we're parked at the stop light, like waiting for it to turn green and like a truck pulled up behind us and like entered the right lane. We were in the centre lane. And, sorry. He, like he stopped to turn right, and the truck was like a lot higher up than our car was, so we saw like a dark shadow fall sort of in front of the truck. And we just assumed that his bumper came off because of like, he was like edging forward to like turn right onto Steeles. And, when the light turned green, we were wondering why the two cars in front of us were not moving. But when they finally started to edge up, we looked to see like what was going on to see if it was his bumper that had fallen off. We saw someone on the ground. There was like an electric scooter that was like partly under the truck, is what we realized was the shadow that we saw fall. It wasn't his bumper. And then, we rushed to go park the car at Shoppers World and we ran back to go see how we could help.

Prosecutor: And you indicated - thank you - sorry Your Worship. Ms. Sekhon, you indicated the light was green - sorry, Had it just the light was red.

Maven Sekhon: Mm-hmm.

Prosecutor: Had it just turned red for you or was it red when you approached the intersection?

Maven Sekhon: It was red when we approached 'cause the first two cars were already stopped.

Prosecutor: And while you were stopped, did you see the truck now approach to your right?

Maven Sekhon: Yeah.

Prosecutor: And what did the truck do as it approached to your right?

Maven Sekhon: It just, it drove up and then it stopped when like it got to like the line.

Prosecutor: When you say it stopped when it got - at the line, what do you mean by that? Did it, so you indicated that you saw a dark figure ...

Maven Sekhon: Mm-hmm.

Prosecutor: ... fall over in front of the truck?

Maven Sekhon: Mm-hmm.

Prosecutor: Did the truck stop before that or did the truck stop once this dark figure fell in front of it?

Maven Sekhon: I don't remember.

Prosecutor: How far behind were you from this truck?

Maven Sekhon: Kind of closer to like the back half of the truck, like where the trunk, the loading part is.

Prosecutor: How many cars length would you say?

Maven Sekhon: One. Like, we were like towards the second half of the truck.

[62] In addition, Joanne Power had testified that she had been stopped for a red light facing eastbound on Steeles Avenue. She said that when her light turned green, she had observed the black-coloured pickup truck accelerate from a stopped position trying to make a right turn and then strike the pedestrian in the crosswalk. In addition, Power said the driver of the pickup truck had a red light on his side while she had the green light when the pedestrian was struck in the crosswalk (see lines 19 to 32 on p. 14, lines 1 to 33 on p. 15, and lines 1 to 2 on p. 16 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Joanne Power: I was driving home from work. I was driving east on Steeles going towards Hurontario. I was stopped at the light by the Supercentre and there was a vehicle that when my light turned green, the vehicle tried to make the right turn and he struck a pedestrian in the, in the crosswalk.

Prosecutor: When you say you were stopped at the light by the Supercentre ...

Joanne Power: Yeah.

Prosecutor: ... which intersection was that, do you recall?

Joanne Power: I'm not sure what the name of the street it, but super world is on, Shoppers World is on the left side and then there's a big Supercentre on the right side and it's just before you hit Hurontario.

Prosecutor: Sorry, you said there is a Shoppers World on the left side and a Supercenter on the right?

Joanne Power: Correct.

Prosecutor: And this is at the intersection that you were stopped?

Joanne Power: Correct.

Prosecutor: And which, which city?

Joanne Power: In Brampton.

Prosecutor: Do you recall the time?

Joanne Power: I think it was around 2:45, between 2:45 and 3:00.

Prosecutor: So you observed the, you said a vehicle tried to make a right turn and struck a pedestrian. What type of vehicle was this?

Joanne Power: It was a big black pickup, but the pickup was, it was high. It was higher up, and the pedestrian was in a, on a scooter and I don't think he saw her and he, he continued to go.

Prosecutor: When you say he continued to go, what do you mean by that?

Joanne Power: He proceeded to make the right-hand turn while the pedestrian was trying to cross, and he hit her.

Prosecutor: You indicated that the light, what colour, what light - what was the colour of the light for you at this point?

Joanne Power: It had just turned green.

Prosecutor: The light had just turned green and then you observed this truck strike the pedestrian, the scooter?

Joanne Power: Right. So, I, my light turned green. I was just starting to proceed, and the gentleman made the, like tried to scoot out in front of me, made the right-hand turn and he hit the pedestrian.

Prosecutor: This gentleman, where was he exactly in relation to you?

Joanne Power: I was, I was proceeding east on Steeles, and he was attempting to go to make the right hand-turn to go towards Hurontario. So, he was, he was at the red light on his side.

[63] Accordingly, based on the observations and credible testimony of Joanne Power and Maven Sekhon, the traffic light for northbound traffic on Lancashire Lane had been indicating “red” when the black-coloured pickup truck, in attempting to make a right turn onto Steeles Avenue, had struck the female pedestrian riding on the mobility scooter when she had been in the pedestrian crosswalk.

(B) Before the truck had accelerated and instantly struck the pedestrian who was in the crosswalk, the black-coloured pickup truck had come to a stop at the stop line

[64] Both Joanne Power and Maven Sekhon had testified to having observed the black pickup coming to a stop before it proceeded forward. Maven Sekhon had said that the black-coloured pickup truck had stopped at the stop line as the pickup truck had passed on Sekhon’s right (see lines 28 to 31 on p. 7 in the October 4, 2022 Transcript of Proceedings at Trial). In addition, Joanne Power had testified that when her traffic light had turned green, she had observed the black-pickup truck accelerate from a stopped position and instantly strike the pedestrian (see lines 9 to 14 on p. 17 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: And what did the truck do as it approached to your right?

Maven Sekhon: It just, it drove up and then it stopped when like it got to like the line.

Prosecutor: Do you recall how fast this vehicle, this big, black pick-up truck, how fast it was traveling?

Joanne Power: Well, it was at a stop so whatever he accelerated at, he, like he hit her instantly as soon as he accelerated. So he, he wouldn't've been - I'm, I'm not sure what speed he was doing.

(C) Was the pedestrian lawfully in the pedestrian crosswalk when she was struck by the black pickup truck?

[65] The pedestrian who was riding on the mobility scooter was legally in the pedestrian crosswalk when the black-coloured pickup truck had struck the pedestrian in the crosswalk. This is based on Joanne Power’s credible and unchallenged testimony in which she had stated that when her traffic light had turned green she had observed the black-pickup truck accelerate from a stopped position and instantly hit the pedestrian in the crosswalk and had ejected the pedestrian from the mobility scooter, and that the pedestrian had the right-of-way because Power had observed that the pedestrian light had turned white for the pedestrian and that the driver of the black-coloured pickup truck had a red light (see lines 11 to 32 on p. 15, lines 1 to 2 on p. 16, and lines 4 to 8 on p. 17 in October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: So you observed the, you said a vehicle tried to make a right turn and struck a pedestrian. What type of vehicle was this?

Joanne Power: It was a big black pickup, but the pickup was, it was high. It was higher up, and the pedestrian was in a, on a scooter and I don't think he saw her and he, he continued to go.

Prosecutor: When you say he continued to go, what do you mean by that?

Joanne Power: He proceeded to make the right-hand turn while the pedestrian was trying to cross, and he hit her.

Prosecutor: You indicated that the light, what colour, what light - what was the colour of the light for you at this point?

Joanne Power: It had just turned green.

Prosecutor: The light had just turned green and then you observed this truck strike the pedestrian, the scooter?

Joanne Power: Right. So, I, my light turned green. I was just starting to proceed, and the gentleman made the, like tried to scoot out in front of me, made the right-hand turn and he hit the pedestrian.

Prosecutor: This gentleman, where was he exactly in relation to you?

Joanne Power: I was, I was proceeding east on Steeles, and he was attempting to go to make the right hand-turn to go towards Hurontario. So, he was, he was at the red light on his side.

Prosecutor: And Ms. Power, did you by any chance observe the crosswalk signal for this pedestrian?

Joanne Power: Yes. So, when my light turned green, and I proceeded, the pedestrian's walk sign had turned white. So, she had the right of way to go across the road.

[66] And, even though s. 144(19) of the Highway Traffic Act permits motorists to make a right turn on a red light, as long as their vehicle has come to a stop at the stop line and not to proceed unless it was safe to do so, the black-coloured pickup truck did come to a stop at the stop line before making the right turn, but as soon as the pickup truck had accelerated it had immediately struck the pedestrian on the mobility scooter in the crosswalk.

(D) In which direction had the pedestrian been travelling on her mobility scooter in the crosswalk?

[67] Joanne Power testified that when her traffic light had turned green for eastbound traffic on Steeles Avenue she had observed the black-coloured pickup truck accelerate from a stopped position and then immediately strike the pedestrian on the mobility scooter in the crosswalk, who Power said had the right-of-way when the pedestrian had entered the crosswalk because the pedestrian light had just turned white.

[68] Cst. Aljanazra testified that he had observed that the mobility scooter that was on the ground in the pedestrian crosswalk had been facing west. Cst. Aljanazra also diagrammed on the Google map entered as Exhibit #2 that the black-coloured pickup truck and the pedestrian scooter were on the eastern side of the southside pedestrian crosswalk of the intersection near the southeast corner of the intersection.

[69] Ergo, the position of the scooter facing west and the testimony of Joanne Power that the pedestrian had just entered the crosswalk when the pedestrian light had turned white and the indication by Cst. Aljanazra that the collision occurred at the eastern part of the pedestrian crosswalk on the southside pedestrian crosswalk of the intersection would indicate that the pedestrian was travelling from the east side of Lancashire Lane towards the west side of Lancashire Lane in a westerly direction.

(E) The black pickup truck had immediately stopped after it had struck the pedestrian and the pickup truck had remained in the same position until the police arrived

[70] The videotape recording entered as Exhibit #3 shows the black-coloured pickup truck still situated in the same location as the witnesses had described. The mobility scooter is also visible in the crosswalk at the front of the pickup truck.

(F) After the black pickup truck had struck the pedestrian, Maven Sekhon, had observed that a male person had jumped out and exited from the pickup truck using the door on the driver’s side of the pickup truck

[71] Maven Sekhon had testified that the driver of the pickup truck had been freaking out and when she was asked how she knew the person she had described as freaking out had been the driver of the truck that had hit the scooter, Sekhon stated that, “We had seen him like jump out and we thought he was like inspecting the damage, because again we thought it was his bumper that had come off. But he was going to see I guess, the person that he had hit.” And when Sekhon had been asked where the individual she had seen exit from the truck had exited from, Sekhon had replied, “The driver's side.” However, when Sekhon was asked in anyone else had exited the pickup truck she had replied that she does not remember and when asked if she recalls if there was anyone with the driver of the truck, she replied that she does not remember. In addition, when she was asked if she had observed the police interact with the male person that she had identified as the driver of the pickup truck she had replied that she does not remember (see lines 25 to 32 on p. 6 and lines 1 to 16 on p. 7 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: And you indicated the driver was freaking out?

Maven Sekhon: Yep.

Prosecutor: How do you know this was the driver of the large truck that hit the scooter?

Maven Sekhon: We had seen him like jump out and we thought he was like inspecting the damage, because again we thought it was his bumper that had come off. But he was going to see I guess, the person that he had hit.

Prosecutor: Did anyone else exit the truck?

Maven Sekhon: I don't remember.

Prosecutor: This individual you saw exit the truck, where did he exit from?

Maven Sekhon: The driver's side.

Prosecutor: Did you call police?

Maven Sekhon: Yeah.

Prosecutor: And did you, did you stay at the scene until police arrived?

Maven Sekhon: Yeah.

Prosecutor: Did you observe the police interact with this driver of the truck?

Maven Sekhon: I don't remember.

Prosecutor: Do you recall if there was anyone with the driver of the truck?

Maven Sekhon: I don't remember.

[72] Ergo, the male person that Sekhon had determined was the driver of the black pickup truck that had struck the pedestrian in the crosswalk had been the male person that Sekhon had observed “jump out” and exit from the driver’s side door of the black-coloured pickup truck after the pickup truck had struck the pedestrian. As most drivers of a motor vehicle would, for the most part, exit the vehicle from the driver’s side door of the vehicle, it would not be uncommon or unexpected for the driver of the pickup truck that had stopped after having struck a pedestrian in a crosswalk to exit from the driver’s side door of the pickup truck and go to the front of the pickup truck to see what the pickup truck had just collied with.

(G) Joanne Power also testified that after the black-coloured pickup truck had struck the pedestrian, she had also observed the driver of the pickup truck standing next to the pickup truck

[73] Joanne Power, who was stopped at the intersection of Lancashire Lane and Steeles Avenue West and facing eastbound on Steeles Avenue West, had observed the black-coloured pickup truck strike the pedestrian in the crosswalk. Power also said that after she had parked her own vehicle and had arrived at the spot where the pedestrian that had been struck was located, she said that the male person she had assumed was the driver of the black-coloured pickup truck had been standing next to the pickup truck and was on his phone calling 9-1-1. However, Power did not state that she had seen the driver actually exit from the pickup truck and had only assumed he had exited the pickup truck because he had been standing next to the pickup truck. In addition Power said that she did not see anyone else in the pickup truck (see lines 20 to 32 on p. 17 and lines 1 to 6 on p. 18 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: Did you observe the driver of this pickup truck?

Joanne Power: Yes, he was outside of his vehicle. He was on the phone. I had asked him if she was conscious, if she was breathing and he, he didn't know.

Prosecutor: Did you observe anyone else in the pickup truck?

Joanne Power: No, I did not.

Prosecutor: Did you actually see this individual exit the truck or had he already been outside of the truck once ....

Joanne Power: He once, once he hit her, he exited. He did exit his vehicle.

Prosecutor: And you observed this?

Joanne Power: He was already out when I got there.

Prosecutor: So how do you know that this individual exited from the vehicle?

Joanne Power: He, he was standing next to the truck, and he was on his cellphone. I assumed he was calling 911. So I just assumed he was the driver of the vehicle.

(H) For the post-collision behaviour and demeanour of the male person that had been identified by the prosecution witnesses as the driver of the black-coloured pickup truck, he had been observed being nervous, “freaking out” with his hands on his head, visibly shaken, and pacing

[74] In respect to the post-collision demeanour and behaviour of the male person that Maven Sekhon had identified as the driver of the black-coloured pickup truck, Sekhon had said that he was like freaking out and he was saying that he called 911, but that he wasn't sure if they had heard because of all the traffic noise and like. When asked what she meant by the driver freaking out, Sekhon also said the male person had been holding his hands on his head (see lines 28 to 32 on p. 5, lines 1 to 8 on p. 6, lines 25 to 26 on p. 6, and lines 17 to 24 on p. 8 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: You indicated you parked your car and you went back to assist. What happened next?

Maven Sekhon: We kind of were just trying to process what was going on. So, my friend Sabrina, she ran to go help the lady that was on the ground because we could see that her head was bleeding. So, I, we just like took off our jackets, like our work jackets and we went to go put them under her head to like soak up the bleeding. There was someone else there that was like yelling to call 911, but like 911 apparently hung up on them.

And I was like, that can't be possible, so I tried calling. We saw the driver also like freaking out and he was saying that he called 911 but he wasn't sure if they heard because of all the traffic noise and like, yeah.

Prosecutor: And you indicated the driver was freaking out?

Maven Sekhon: Yep.

Prosecutor: And you indicated this driver was freaking out. Did the driver say anything to you?

Maven Sekhon: Only when I asked like if someone had called 911 and he was like I called but I don't know if they heard.

Prosecutor: When you say freaking out what do you exactly mean by that?

Maven Sekhon: He had taken his shirt off and he was like holding his hands on his head.

[75] Moreover, Joanne Power had also testified about the post-collision demeanour and behaviour of the male person that she had considered to be the driver of the black-coloured pickup truck and said that he had been visibly shaken, on the phone, pacing and maybe even in shock at what had happened (see lines 19 to 25 on p. 18 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: Can you describe this individual's demeanor?

Joanne Power: The driver's?

Prosecutor: Yes. The individual that you believed was the driver.

Joanne Power: He was, he was visibly shaken. He was on the phone, he was, you know, he was pacing. I would say he was you know very, maybe even in shock at what had happened.

[76] In addition, Cst. Aljanazra had testified that the male person he believed to be driver of the black-coloured pickup truck had been completely cooperative and had seemed nervous and apologetic (see lines 1 to 9 on p. 23 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: Constable can you please describe your interaction - so could you just describe how your interaction came about between you and this individual whom you believe to be was the driver of the vehicle?

Cst. Aljanazra: My initial belief that this is the driver came from a witness on the scene that said that the driver of the vehicle is right there. … Identified that a young male, a young white male as the driver. He was completely cooperative at the time. He came up to me seemed nervous, he seemed apologetic. I assured him that everything is going to be okay, we just need to deal with the scene. …

[77] The three prosecution witnesses had described the male person, who the three had identified as the driver of the black-coloured pickup truck, as having similar post-collision demeanour and to be behaving similarly of being visibly shaken, pacing, freaking out, holding his hands on his head, and being nervous and apologetic. Ergo, this male person’s post-collision demeanour and behaviour would be consistent with someone who had been just driving a motor vehicle that had such struck an elderly woman that had been using a mobility scooter and had been found lying on the ground bleeding from her head.

(I) Maven Sekhon spoke with the male person she had identified as the driver of the black-coloured pickup truck about calling 9-1-1

[78] Maven Sekhon also testified that she had a brief conversation with the male person that she had determined was the driver of the black pickup truck that had struck the pedestrian in the crosswalk, when she had asked if someone had called 9-1-1 and she said that he had said that, “I called but I don't know if they heard” (see lines 17 to 24 on p. 8 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: And you indicated this driver was freaking out. Did the driver say anything to you?

Maven Sekhon: Only when I asked like if someone had called 911 and he was like I called but I don't know if they heard.

Prosecutor: When you say freaking out what do you exactly mean by that?

Maven Sekhon: He had taken his shirt off and he was like holding his hands on his head.

(J) Joanne Power also spoke with the male person she had identified as the driver of the black-coloured pickup truck about whether the pedestrian was conscious or breathing and whether he had any pillows or towels in his truck

[79] Joanne Power had also testified that she had a conversation with the male person that she had determined was the driver of the black pickup truck that had struck the pedestrian in the crosswalk, when she had asked him if the pedestrian was conscious, or if the pedestrian was breathing and the male person said he didn't know. In addition, Joanne Power said that she had asked the same male person if he had a pillow, towels, or anything in his truck that Power could use on the pedestrian’s head wound and the male person had taken his shirt off and said use this (see lines 20 to 24 on p. 17, lines 13 to 18 on p. 18, and lines 7 to 11 on p. 19 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: Did you observe the driver of this pickup truck?

Joanne Power: Yes, he was outside of his vehicle. He was on the phone. I had asked him if she was conscious, if she was breathing and he, he didn't know.

Prosecutor: And aside from you asking this individual you assumed was the driver that - whether this - that she was breathing, did he tell you anything else?

Joanne Power: No. I asked him if she was conscious, or if she was breathing. He just said he doesn't know. Then I proceeded to go to her.

Prosecutor: So at that point he didn't have a shirt on?

Joanne Power: He didn't have a shirt on, no. I can't remember if he had another shirt. I remember I asked him if he had a pillow, towels, or anything in his truck that I could use on her head wound and he took his shirt off and said use this.

[80] Ergo, as both Maven Sekhon and Joanne Power had spoken directly with the male person that they had identified as the driver of the black-coloured pickup truck, they both would have been close enough to have observed the male person and his physical appearance and also of his post-collision behaviour and conduct, as well as his demeanour and whether he had been on his cellphone.

(K) The male person identified as the driver of the black-coloured pickup truck was not wearing a shirt

[81] Both Maven Sekhon and Joanne Power had described the male person that they both had identified as the driver of the black-coloured pickup truck as a person who had taken off his shirt and was not wearing a shirt (see lines 21 to 24 on p. 8 and lines 29 to 32 on p. 18 and lines 1 to 11 on p. 19 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: When you say freaking out what do you exactly mean by that?

Maven Sekhon: He had taken his shirt off and he was like holding his hands on his head.

Prosecutor: Yes, with the pedestrian. Did you interact with her?

Joanne Power: Yes. I, I went to her; she had a head wound. I had proceeded to ask for t-shirts and actually the driver had given me his t-shirt. And then other people had given stuff. So I just tried to make her as comfortable as possible. I spoke with her, I tried to calm her down. And she did want to get up but with us, with us speaking to her she did seem to relax.

Prosecutor: Sorry, you said the driver gave you his shirt?

Joanne Power: Correct.

Prosecutor: So at that point he didn't have a shirt on?

Joanne Power: He didn't have a shirt on, no. I can't remember if he had another shirt. I remember I asked him if he had a pillow, towels, or anything in his truck that I could use on her head wound and he took his shirt off and said use this.

[82] In addition, the videotape recording entered as Exhibit #3 shows a male person that Cst. Aljanazra had identified as Jordan Tavares, and who Cst. Aljanazra had interacted with and speaking with, had not been wearing a shirt.

(L) The male person identified as the driver of the black-coloured pickup truck said he had called 9-1-1 or was observed using and holding a cellphone

[83] Maven Sekhon had said that when she had asked if anyone had called 9-1-1, she said the male person that she had identified as the driver of the black-coloured pickup truck had replied that he had called 9-1-1, but did not know if they had heard him (see lines 17 to 20 on p. 8 in the October 4, 2022 Transcript of Proceedings at Trial):

Prosecutor: And you indicated this driver was freaking out. Did the driver say anything to you?

Maven Sekhon: Only when I asked like if someone had called 911 and he was like I called but I don't know if they heard.

[84] Furthermore, Joanne Power testified that the male person she had identified and determined to be the driver of the black-coloured pickup truck had been standing next to the pickup truck and on his cellphone. Power said that she had assumed he had been calling 9-1-1 (see lines 20 to 24 on p. 17 and lines 2 to 6 on p. 18 in the October 4, 2022 Transcript of Proceedings at Trial):

Prosecutor: Did you observe the driver of this pickup truck?

Joanne Power: Yes, he was outside of his vehicle. He was on the phone. I had asked him if she was conscious, if she was breathing and he, he didn't know.

Prosecutor: So how do you know that this individual exited from the vehicle?

Joanne Power: He, he was standing next to the truck, and he was on his cellphone. I assumed he was calling 911. So I just assumed he was the driver of the vehicle.

[85] Both Maven Sekhon and Joanne Power had testified about the male person that they both had identified as the driver of the black-coloured pickup truck either using a cellphone to call 9-1-1 or saying that he had called 9-1-1 after the collision.

(M) Joanne Power had testified that she had pointed out the male person she had identified as the driver of the black-coloured pickup truck to a male police officer at the scene

[86] Joanne Power had testified that she had pointed out the male person who she had identified and determined to be the driver of the black-coloured pickup truck to a male police officer that was at the scene of the collision (see lines 15 to 27 on p. 19 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: And did you see the police interact with this individual whom you believed was the driver of the truck?

Joanne Power: No, I did not. The police, paramedics showed up. And while I was speaking with them there was a police officer standing to the right of me. When I had got up, he asked me if I had witnessed, and I said yes, and he said he needed to speak with me. So I spoke with him and then after I was done speaking with him and told him what I knew he told me I could leave the scene. I had no interaction with the driver at all only to ask if he had something in his truck I could use.

Prosecutor: Did you, did you let the police know who you believed was the driver of the truck?

Joanne Power: Yes. I pointed him out.

(N) Cst. Aljanazra testified that the driver of the black-coloured pickup truck had been pointed out to him by one of the witnesses

[87] Cst. Aljanazra had testified that one of the witnesses had pointed out the driver of the black-coloured pickup truck to him (see lines 1 to 19 on p. 23 and lines 13 to 18 on p. 30 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: Constable can you please describe your interaction - so could you just describe how your interaction came about between you and this individual whom you believe to be was the driver of the vehicle?

Cst. Aljanazra: My initial belief that this is the driver came from a witness on the scene that said that the driver of the vehicle is right there. … Identified that a young male, a young white male as the driver. He was completely cooperative at the time. He came up to me seemed nervous, he seemed apologetic. I assured him that everything is going to be okay, we just need to deal with the scene. It was a big scene. We had to shut down the entire west bound, east bound of Steeles and we were trying to deal with a major scene. He was nothing but cooperative, he spoke with me with respect; identified himself by giving me an Ontario driver's license that he handed to me. And once ID was confirmed, I - from there I went to managing the scene and at the same time making sure that the victim got the first aid that she needed. That was mostly my interaction with him other than serving a two Part Ills on him on that day.

Prosecutor: Constable Aljanazra you indicated that this individual was pointed out to you by individuals at the scene?

Cst. Aljanazra: Correct.

Prosecutor: And he was pointed out to you as the driver of this vehicle?

Cst. Aljanazra: That is correct.

(O) Cst. Aljanazra testified he had obtained the driver’s licence of the male person pointed out to him as the driver of the black-coloured pickup truck and was satisfied with the identity of the person as Jordan Tavares

[88] Cst. Aljanazra testified he had obtained the driver’s licence of the male person pointed out to him as the driver of the black-coloured pickup truck and was satisfied with the identity of the person as Jordan Tavares (see lines 1 to 19 on p. 23, lines 13 to 18 on p. 30, line 32 on p. 31, and lines 1 to 14 on p. 32 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: Constable can you please describe your interaction - so could you just describe how your interaction came about between you and this individual whom you believe to be was the driver of the vehicle?

Cst. Aljanazra: My initial belief that this is the driver came from a witness on the scene that said that the driver of the vehicle is right there. … Identified that a young male, a young white male as the driver. He was completely cooperative at the time. He came up to me seemed nervous, he seemed apologetic. I assured him that everything is going to be okay, we just need to deal with the scene. It was a big scene. We had to shut down the entire west bound, east bound of Steeles and we were trying to deal with a major scene. He was nothing but cooperative, he spoke with me with respect; identified himself by giving me an Ontario driver's license that he handed to me. And once ID was confirmed, I - from there I went to managing the scene and at the same time making sure that the victim got the first aid that she needed. That was mostly my interaction with him other than serving a two Part Ills on him on that day.

Prosecutor: Constable Aljanazra you indicated that this individual was pointed out to you by individuals at the scene?

Cst. Aljanazra: Correct.

Prosecutor: And he was pointed out to you as the driver of this vehicle?

Cst. Aljanazra: That is correct.

Prosecutor: Indicate you were able to confirm ID through driver's licence?

Cst. Aljanazra: For the driver?

Prosecutor: Yes.

Cst. Aljanazra: Correct.

Prosecutor: What was the driver's licence number? Did you note it down?

Cst. Aljanazra: I have noted the driver's licence number for the driver as [removed for privacy].

Prosecutor: And who did you determine was the driver?

Cst. Aljanazra: The driver, Jordan Tavares. name,

Prosecutor: Could you spell that for the record.

Cst. Aljanazra: First name is Jordan, J-O-R-D-A-N and a last of T-A-V-A-R-E-S, …

(P) Cst. Aljanazra testified that the male person who was not wearing a shirt that he was interacting with on the videotape recording entered as Exhibit #3 is Jordan Tavares

[89] Cst. Aljanazra had testified that in the videotape recording entered as Exhibit #3, the male person without a shirt on, who Cst. Aljanazra had been interacting with is the defendant, Jordan Tavares.

(Q) Cst. Aljanazra testified that the registered owner of the black-coloured pickup truck was Mariva Tavares, who has the same surname as the defendant, Jordan Tavares

[90] As to who the registered owner of the black-coloured pickup truck is, Cst. Aljanazra had testified that the registered owner of the black-coloured pickup truck was a person named “Mariva Tavares”. The surname of the registered owner of the black pickup truck is “Tavares”, which also happens to be the same surname as the surname of the defendant, Jordan Tavares (see lines 23 to 29 on p. 31 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: Did you ever determine who the registered owner was?

Cst. Aljanazra: Yes, I did. And if I may refer to my notes the registered owner is Mariva Tavares, 1966.

Prosecutor: Can you spell that for the record?

Cst. Aljanazra: Her first name will be M-A-R-I-V-A and last name as Jordan will be T-A-V-A-R-E-S.

[91] The defendant’s legal representative submits that the court should not place any weight on the registered owner’s surname of “Tavares” also being the same surname of the defendant, Jordan Tavares. However, based on logic and human experience, the fact that the surname of the registered owner of the black pickup truck of “Tavares” is the same surname of the defendant, Jordan Tavares, does carry significant weight. Although that evidence alone may not support a finding beyond a reasonable doubt that the defendant was the driver of the black-coloured pickup truck, the surname of the registered owner of the pickup truck being the same as the defendant’s is more than a mere coincidence. When considered with all the evidence pointing to the defendant as the driver and in light of the absence of evidence that there had been more than one person in the truck besides the defendant at the time the black pickup truck collided with the pedestrian, the evidence of the same surnames certainly supports the reasonable inference that the defendant was the driver of the pickup truck.

(R) Is there any credible evidence adduced at trial that there had been someone else in the pickup truck with the male person that Maven Sekhon had observed exit from the driver’s side door of pickup truck, or that there had been someone else in the vicinity of the pickup truck or with the defendant?

[92] Neither Maven Sekhon, Joanne Power, nor Cst. Aljanazra had testified to having observed more than one person inside the black-coloured pickup truck or that there had been another person with the male person they had identified as the driver of the black-coloured pickup truck.

[93] When Maven Sekhon had been asked if she had observed another person in the pickup truck, she had replied that she did not remember (see lines 14 to 16 on p. 7 and lines 13 to 28 on p. 10 in the October 4, 2022 Transcript of Proceedings at Trial):

Prosecutor: Do you recall if there was anyone with the driver of the truck?

Maven Sekhon: I don't remember.

Defence rep.: Did you see anybody exit the vehicle from the passenger side door?

Maven Sekhon: I couldn't see the passenger side.

Defence rep.: Okay, and - but when you walked back to the truck at any point in time during that whole time that you were at the location, did you see anybody exit from the inside of the vehicle, the passenger door?

Maven Sekhon: Besides the driver, no.

Defence rep.: Did you see the driver exit through the passenger door or only through the driver's?

Maven Sekhon: Only through the driver.

Defence rep.: Thank you. And other than when you saw the driver exit the vehicle through the door, any other time did you see the driver in the driver's seat of the vehicle operating the vehicle?

Maven Sekhon: I don't remember.

[94] In addition, Joanne Power stated that she did not observe anyone else in the pickup truck when she had been asked if she had observed anyone else in the pickup truck (see lines 25 to 27 on p. 17 in the October 4, 2022 Transcript of Proceedings at Trial):

Prosecutor: Did you observe anyone else in the pickup truck?

Joanne Power: No, I did not.

[95] Moreover, Cst Aljanazra also testified that he did not observe anyone else with the defendant nor anyone else in the pickup truck (see lines 7 to 11 on p. 33 in the October 4, 2022 Transcript of Proceedings at Trial):

Prosecutor: And was there anyone else with Mr. Tavares?

Cst. Aljanazra: No, I did not see anyone else.

Prosecutor: What about - and this Dodge Ram pickup truck did you observe anyone else in the vehicle?

Cst. Aljanazra: No.

[96] Ergo, when the three prosecution witnesses were asked if they had either seen anyone else in sitting in the truck, or seen anyone else exit from the truck besides the defendant, or seen anyone else standing near the pickup truck besides the defendant, or seen anyone else with the defendant, none of the three witnesses had testified to having actually observed anyone else sitting in the black-coloured pickup truck, or that they had observed anyone else exit the pickup truck other than the defendant, or that they had observed anyone else standing near the pickup truck other than the defendant, or that they had observed anyone else standing with or being with the defendant. From this evidence from the prosecution’s witnesses, the prosecution has negatived the alternative possibility or theory that someone else could have been driving the black-coloured pickup truck and not the defendant, which contention had been based on none of the prosecution witnesses actually having observed the defendant sitting in the driver’s seat or driving the pickup truck.

(S) The testimony from the 3 prosecution witnesses contained a similar description of the male person that they had believed was the driver of the black-coloured pickup truck, which was supported by the videotape recording entered as Exhibit #3 of a male person interacting with Cst. Aljanazra near the black-coloured pickup truck

[97] Maven Sekhon had testified that the male person she had believed was the driver of the black-coloured pickup truck was white and a younger male with a beard and approximately 30 years of age, wearing black clothing, and a black baseball cap, freaking out, and holding his hand on his head. In addition Maven Sekhon said she had asked this male person if he had called 9-1-1 and he had replied that he did but was not sure that they had heard him. Sekhon also said she had observed him take off his shirt (see lines 28 to 32 on p. 5 and lines 1 to 8 on p. 6, lines 17 to 29 on p. 8 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: You indicated you parked your car and you went back to assist. What happened next?

Maven Sekhon We kind of were just trying to process what was going on. So, my friend Sabrina, she ran to go help the lady that was on the ground because we could see that her head was bleeding. So, I, we just like took off our jackets, like our work jackets and we went to go put them under her head to like soak up the bleeding. There was someone else there that was like yelling to call 911, but like 911 apparently hung up on them.

And I was like, that can't be possible, so I tried calling. We saw the driver also like freaking out and he was saying that he called 911 but he wasn't sure if they heard because of all the traffic noise and like, yeah.

Prosecutor: And you indicated this driver was freaking out. Did the driver say anything to you?

Maven Sekhon: Only when I asked like if someone had called 911 and he was like I called but I don't know if they heard.

Prosecutor: When you say freaking out what do you exactly mean by that?

Maven Sekhon: He had taken his shirt off and he was like holding his hands on his head.

Prosecutor: Are you able to provide now a description of this gentlemen?

Maven Sekhon: He was, I know he was white. He was a younger guy, like maybe in his thirties. He had a beard, he was wearing black, and he was wearing a black baseball cap.

[98] Joanne Power also testified that the male person she had determined was the driver of the black-coloured pickup truck was white, male, approximately 30 years old, not wearing a shirt, and visibly shaken, pacing, and on his cellphone. In addition, Joanne Power had asked the male person she had believed to be the driver of the black-coloured pickup truck if he had any pillows or towels in the pickup truck and Power said the male person then took off his shirt and said to her to use his shirt (see lines 28 to 32 on p. 5 and lines 1 to 8 on p. 6, lines 20 to 24 on p. 17 and lines 2 to 25 on p. 18 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: Did you observe the driver of this pickup truck?

Joanne Power: Yes, he was outside of his vehicle. He was on the phone. I had asked him if she was conscious, if she was breathing and he, he didn't know.

Prosecutor: So how do you know that this individual exited from the vehicle?

Joanne Power: He, he was standing next to the truck, and he was on his cellphone. I assumed he was calling 911. So I just assumed he was the driver of the vehicle.

Prosecutor: Can you provide a description of this individual?

Joanne Power: He was probably around five eight, I'm thinking he had short hair. He was thin. Really, I, I was more concerned with the pedestrian to make sure she was okay. I didn't get a really up-close look at him, no.

Prosecutor: And aside from you asking this individual you assumed was the driver that - whether this - that she was breathing, did he tell you anything else?

Joanne Power: No. I asked him if she was conscious, or if she was breathing. He just said he doesn't know. Then I proceeded to go to her.

Prosecutor: Can you describe this individual's demeanor?

Joanne Power: The driver's?

Prosecutor: Yes. The individual that you believed was the driver.

Joanne Power: He was, he was visibly shaken. He was on the phone, he was, you know, he was pacing. I would say he was you know very, maybe even in shock at what had happened.

[99] Cst. Aljanazra also testified that the male person he believed to be the driver of the black pickup truck was nervous and apologetic, but cooperative (see lines 1 to 19 on p. 23 in the October 4, 2022 Transcript of Proceedings at Trial) [emphasis is mine below]:

Prosecutor: Constable can you please describe your interaction - so could you just describe how your interaction came about between you and this individual whom you believe to be was the driver of the vehicle?

Cst. Aljanazra: My initial belief that this is the driver came from a witness on the scene that said that the driver of the vehicle is right there. Identified that a young male, a young white male as the driver. He was completely cooperative at the time. He came up to me seemed nervous, he seemed apologetic. I assured him that everything is going to be okay, we just need to deal with the scene. It was a big scene. We had to shut down the entire west bound, east bound of Steeles and we were trying to deal with a major scene. He was nothing but cooperative, he spoke with me with respect; identified himself by giving me an Ontario driver's license that he handed to me. And once ID was confirmed, I - from there I went to managing the scene and at the same time making sure that the victim got the first aid that she needed. That was mostly my interaction with him other than serving a two Part Ills on him on that day.

[100] Furthermore, the videotape recording of the intersection taken on July 28, 2020, that had entered as Exhibit #3, shows a shirtless white male interacting with Cst. Aljanazra near the black-coloured pickup truck. Cst. Aljanazra also verified that the male person without the shirt that he was interacting with on the videotape recording was Jordan Tavares, which Cst. Aljanazra had identified with a photo Ontario driver’s licence and confirmed by Cst. Aljanazra in a check on the Ministry of Transportation of Ontario website. Cst. Aljanazra also testified that he had been satisfied with the identification of the male person as Jordan Tavares.

(T) Did The Prosecution Prove Beyond A Reasonable Doubt That The Defendant, Jordan Tavares Was The Driver Of The Black-Coloured Pickup Truck That Had Struck The Pedestrian In The Crosswalk?

[101] To reiterate, the key issue that has to be decided is whether the prosecution has proven beyond a reasonable doubt that he defendant, Jordan Tavares, had been the driver of the black-coloured pickup truck that had struck the pedestrian who had been legally in the crosswalk. There is no direct evidence from any of the witnesses who testified that they had observed the defendant in the driver’s seat or had observed the defendant actually driving the pickup truck. As such, the defence submits that the prosecution has failed to prove that the defendant is the driver of the pickup truck that had struck the defendant and as a result the defendant should be found not guilty of committing both of the Highway Traffic Act charges of “fail to yield to pedestrian” and “driving while under suspension”. However, the prosecution submits that it has proven that the driver of the pickup truck was the defendant, Jordan Tavares, based on the totality of the evidence and which is based on reasonable inferences from the circumstantial evidence adduced at trial.

(1) Use of circumstantial evidence as proof of the identity of the driver of the black-coloured pickup truck

[102] In R. v. Griffin, 2009 SCC 28, [2009] S.C.J. No 28, at paras. 33 to 35, Charron J. for the majority of the Supreme Court of Canada, noted that in order to convict, the trier-of-fact or the jury must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. In short, Charron J. explained that a guilty verdict can only be rendered if guilt is the sole rational inference to be drawn from the circumstantial evidence. Charron J. also explained that the words "equally rational" and "as reasonable" were not used as measures of the comparative value or weight of a non-guilty inference, but to describe the quality of any inference, guilty or otherwise, which might be drawn from the circumstantial evidence [emphasis is mine below]:

We have long departed from any legal requirement for a "special instruction" on circumstantial evidence, even where the issue is one of identification: R. v. Cooper, 1977 11 (SCC), [1978] 1 S.C.R. 860. The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message to the jury may be achieved in different ways: R. v. Fleet (1997), 1997 867 (ON CA), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. See also R. v. Guiboche, 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran (2000), 2000 2688 (ON CA), 142 C.C.C. (3d) 380 (Ont. C.A.), at para. 29.

There is no question that the instructions in the present case fulfilled this essential requirement. The trial judge repeatedly made clear to the jury that a guilty verdict can only be rendered if guilt is the sole rational inference to be drawn from the circumstantial evidence. The issue to be resolved, rather, is whether the use of the words "equally rational" and "as reasonable" detracted from the otherwise correct instructions by leading jurors to believe, as the respondents contend, that they could only acquit if they found an innocent inference from the circumstantial evidence of the same weight as an inference of guilt. It is argued that the impugned language had the potential to engage the jury in an abstract comparative exercise, assessing the qualitative reasonableness of one inference against another when the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt.

Read in context, as all jury instructions must be, it becomes apparent that the words "equally rational" and "as reasonable" were not used as measures of the comparative value or weight of a non-guilty inference, but, as the judge himself explained to counsel, to describe the quality of any inference, guilty or otherwise, which might be drawn from the circumstantial evidence. Indeed, no one argues that the jury should be entitled to base its decision on irrational or unreasonable inferences. …

[103] Furthermore, in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, the Supreme Court of Canada emphasized that the trier of fact should guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences from circumstantial evidence. At para. 30, Cromwell J. for the Supreme Court of Canada, had explained that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it would generally be helpful to caution the trier of fact or jury about being too ready to draw inferences of guilt. To guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences, Cromwell J. stressed that the trier of fact or jury should be informed that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits. Cromwell J. also provided an illustration of the concern about jumping to quickly to conclusions from circumstantial evidence by stating the following example: “If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” [emphasis is mine below]:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. [para. 30]

[104] Moreover, in R. v. Hayatibahar, [2022] O.J. No. 2850 (Ont. S.C.), at paras. 31 to 33, Di Luca J. held that the Crown must prove that the accused's guilt is the only reasonable inference available on the evidence. Di Luca J. also noted that the consideration of circumstantial evidence requires the drawing of reasonable inferences based on logic, experience and common sense, and that speculation and conjecture are impermissible inferences from circumstantial evidence. In addition, Di Luca J. indicated that the analysis must be based on the totality of the evidence before the court and if a reasonable inference inconsistent with guilt on any essential element of the offence exists, then the accused is entitled to an acquittal or a conviction on a lesser and included offence. Furthermore, Di Luca J. explained that an inference inconsistent with guilt must be reasonable and not simply possible.

Di Luca J. also confirmed that the Crown is not required to negative every possible inference conceivable and that an inference inconsistent with guilt does not need to arise from "proven facts" and can arise as a matter of logic and experience based on a consideration of all the evidence and the absence of evidence [emphasis is mine below]:

Where the evidence in a case is circumstantial, the Crown must prove that the accused's guilt is the only reasonable inference available on the evidence, see R. v. Villaroman, 2016 SCC 33 and R. v. Choudhury, 2021 ONCA 560 at para. 19. The consideration of circumstantial evidence requires the drawing of reasonable inferences based on logic, experience and common sense. Speculation and conjecture are impermissible. The line between speculation and reasonable inference may be at times difficult to draw. However, the ease of drawing the inference is not the standard. The standard is whether the inference is based in logic and reason.

The analysis must be based on the totality of the evidence before the court, see R. v. Aslami, 2021 ONCA 249 and R. v. Smith, 2016 ONCA 25, at para. 81. If, after all of the evidence is considered, a reasonable inference inconsistent with guilt on any essential element of the offence exists, the accused is entitled to an acquittal or a conviction on a lesser and included offence, as the case may be. An inference inconsistent with guilt must be reasonable, not simply possible.

The Crown is not required to negative every possible inference conceivable. However, an inference inconsistent with guilt does not need to arise from "proven facts", see Villaroman, supra, at para. 35 and R. v. Robert (2000), 2000 5129 (ON CA), 143 C.C.C. (3d) 330 (Ont.C.A.) at para. 17. It can arise as a matter of logic and experience based on a consideration of all the evidence and the absence of evidence, see R. v. Ali, 2021 ONCA 362 at paras. 97 and 98.

[105] Also, in R. v. McIvor, [2021] M.J. No. 169, at para. 35, the Manitoba Court of Appeal noted that the Supreme Court of Canada had set out the principles related to the determination of the reasonableness of a verdict in a case based on circumstantial evidence in R. v. Villaroman (at paras. 55 to 56). Moreover, the Manitoba Court of Appeal confirmed that where the Crown's case depends on circumstantial evidence, the question becomes whether the trier-of-fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence. In addition, the Manitoba Court of Appeal adopted the Alberta Court of Appeal’s summary of the governing principle on the use of circumstantial evidence in R. v. Dipnarine, 2014 ABCA 328, [2014] A.J. No. 1102 (at para 22), that circumstantial evidence does not have to totally exclude other conceivable inferences and that a verdict of guilt inferred from circumstantial evidence is not unreasonable simply because the alternatives do not raise a doubt in the jury's mind and that it is still fundamentally for the trier-of-fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt [emphasis is mine below]:

The Supreme Court of Canada set out the principles related to the determination of the reasonableness of a verdict in a case based on circumstantial evidence in Villaroman (at paras 55-56):

A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Biniaris, 2000 SCC 15 . . . Applying this standard requires the appellate court to re-examine and to some extent reweigh and consider the effect of the evidence: R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at p. 186. This limited weighing of the evidence on appeal must be done in light of the standard of proof in a criminal case. Where the Crown's case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence [citations omitted].

The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine [R v Dipnarine, 2014 ABCA 328], at para 22. The court noted that "(c)ircumstantial evidence does not have to totally exclude other conceivable inferences" and that a verdict is not unreasonable simply because "the alternatives do not raise a doubt" in the jury's mind. Most importantly, "(i)t is still fundamentally for the trier (of) fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt."

[106] Also, in R. v. Dipnarine, 2014 ABCA 328, [2014] A.J. No. 1102, at paras. 22 to 26, the Alberta Court of Appeal reiterated that the circumstantial evidence test is simply a category of analysis used to reach a conclusion regarding proof beyond a reasonable doubt. And, in respect to alternative inferences from circumstantial evidence, the Alberta Court of Appeal noted that alternative inferences must be reasonable and rational, not just possible, and that reasonable doubt can arise from the absence of evidence and that it would not be an error of law to give effect to such a doubt even if it does not have specific evidence backing it up. In addition, the Alberta Court of Appeal emphasized that the logic of the circumstantial evidence analysis is that if a trier-of-fact considers a postulated alternative interpretation of the circumstances taken as a whole to be unreasonable or irrational, then the trier-of-fact is not bound to give effect to that alternative just because it is impossible to exclude it entirely [emphasis is mine below]:

Circumstantial evidence does not have to totally exclude other conceivable inferences. If the trier of fact infers guilt because the alternatives do not raise a doubt in his or her mind, the verdict is not thereby rendered unreasonable, ipso jure. It is still fundamentally for the trier to fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt in the mind[s] of that trier.

The circumstantial evidence test is simply a category of analysis used to reach a conclusion regarding proof beyond a reasonable doubt: see R v Griffin, 2009 SCC 28 at paras 27 to 38, [2009] 2 SCR 42. Hodge's Case, (1838), 1838 1 (FOREP), 168 ER 1136 has long been understood in that way: see eg McGreevy v Director of Public Prosecutions, [1973] 1 All ER 503 (HL).

Alternative inferences must be reasonable and rational, not just possible. As pointed out by Charron J at para 35 of Griffin, "no one argues that the jury should be entitled to base its decision on irrational or unreasonable inferences." Reasonable doubt can arise from the absence of evidence. It is not error of law to give effect to such a doubt even if it does not have specific evidence backing it up -- see R v (H(JM), 2011 SCC 45 at paras 25 to 27, [2011] 3 SCR 197.

But the logic of the circumstantial evidence analysis is that if a trier of fact considers a postulated alternative interpretation of the circumstances taken as a whole to be unreasonable or irrational, the trier of fact is not bound to give effect to that alternative just because it is impossible to exclude it entirely. The law does not require such proof to absolute certainty: see R v Lifchus, 1997 319 (SCC), [1997] 3 SCR 320 at para 30 ("...a reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence ... [the jury] should be told that a reasonable doubt must not be imaginary or frivolous. As well they must be advised that the Crown is not required to prove its case to an absolute certainty since such an unrealistically high standard could seldom be achieved.").

Examples of where circumstantial evidence has been upheld as sufficient for a reasonable verdict of guilt despite possible alternatives can be given. In R v Knight, 2002 ABCA 191, 312 AR 106 Paperny JA dissenting opined that it was reasonable for a trial judge to find causation. Her view prevailed at 2003 SCC 15, [2003] 1 SCR 156. In R v Eastgaard, 2011 ABCA 152, 510 AR 117, this Court again divided as to whether it was reasonable to infer that the accused was aware that a hidden gun was loaded. The majority considered that to be a "logical inference". Certainly it was not the only inference possible and the dissenter provided a number of reasons said to support that view. Once again, however, the Supreme Court affirmed the verdict as reasonable.

[107] Furthermore, in R. v Mattatal, [2019] Q.J. No. 5140 (Court of Quebec) (Criminal and Penal Division), at paras. 87 to 91, Meredith J.Q.C. applied the guidelines for the proper use of circumstantial evidence that had been set out by the Supreme Court of Canada in R. v. Griffin, 2009 SCC 28, [2009] S.C.J. No 28 and R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, which provide that in order to convict, a trier-of-fact must be satisfied beyond a reasonable doubt that the only “rational inference” that can be drawn from the circumstantial evidence is that the accused is guilty, and also, that an inference of guilt drawn from circumstantial evidence should be the only “reasonable inference” that such evidence permits [emphasis is mine below]:

In assessing her evidence in this regard, the Court must consider guidelines provided by the Supreme Court of Canada related to circumstantial evidence.

In R. v. Griffin, the Supreme Court of Canada stated:

We have long departed from any legal requirement for a "special instruction" on circumstantial evidence, even where the issue is one of identification: R. v. Cooper, 1977 11 (SCC), [1978] 1 S.C.R. 860. The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.

In R. v. Villaroman the Supreme Court added on this subject, at paragraph 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences.

The Court considered and applied these guidelines to the evidence in the present case. Regarding Ms. Smyth's testimony, the Court is convinced that the encounter and interaction she described in the transport van did occur. From her evidence, although she was not able to formally identify the accused in the courtroom dock, the Court finds that the only rational or reasonable inference that such evidence permits is that it is Richard Andrew Mattatal that had this conversation with her. Strong indicia of this was Ms. Smyth's observation of a tattoo on the neck of the man who identified himself to her as the accused. Furthermore, by admission, it is not disputed that both were together in the transport van on August 23rd. The motivation to have such a conversation with Ms. Smyth, to dissuade Ms. Racine to testify against him, is certainly also in his interest. Finally, Ms. Smyth's evidence is uncontradicted.

Based on the circumstances of this exchange, there is no other reasonable inference that can be made that anyone other than the accused could have had this conversation with Ms. Smyth. Accordingly, the Court is convinced that the accused is the person who had this exchange with her.

[108] Furthermore, in Wild v. the Queen, 1970 148 (SCC), [1971] S.C.R. 101, [1970] S.C.J. No. 69, Martland J., for the majority of the Supreme Court, held that the onus of proof must rest with the Crown to establish the guilt of the accused beyond a reasonable doubt, but this proposition does not mean that the Crown must negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. On the issue of whether or not the accused was the driver of the motor vehicle at the material time, Martland J. held that the contention that the accused person may not have been driving at the time of the accident had been based on "conjecture" and is "fanciful” and that no other conclusion could have been reached on the evidence than the accused person was indeed driving at the material time [emphasis is mine below]:

All of the occupants of the car were killed, as a result of the collision, other than the appellant. He was found behind the steering wheel, which was badly bent. His face was covered with blood. His left leg, which was to the left of the steering column, was pinned between the dashboard and the floor to such a degree that he could not be freed until a fireman had used an hydraulic jack unit to raise up the dashboard.

One of the other occupants of the car was found lying in the back seat. The other two were found in the right front portion of the car, hanging from the vehicle on to the pavement, one on top of the other.

The learned trial judge said that he had no difficulty in finding that the driver of the appellant's vehicle was guilty of criminal negligence. He acquitted the appellant because he said he was not satisfied beyond a reasonable doubt that the appellant was driving the car at the time of the collision because, while it was probable that he was the driver, certain factors made it "although not likely, but possible that someone else was at the wheel."

Dealing with this conclusion, and after reviewing the evidence on which the learned trial judge had relied in forming an opinion that it was possible that the appellant had not been driving, at the time of the accident, the judgment of the Appellate Division reads as follows:

... In my view the evidence referred to amounts to no more than conjecture or surmise that this was the course of events. It seems clear to me that the trial judge's doubt as to whether the Respondent was the driver has "no evidence to support it" and "lacks factual support" just as much as the contention in Regina v. Torrie, 1967 285 (ON CA), 50 C.R. 300, that the tire of Torrie's car may have been cut by a sharp object thrown against it by some other traffic was found to be without any evidence to support it. See also The Queen v. Lemire (1965) 1964 52 (SCC), S.C.R. 174, Martland J., concurred in by Fauteux, Abbott, and Ritchie JJ. at pp. 191, 192.

I agree with and consider that the following statement of Evans J.A. for the Court of Appeal of Ontario in Regina v. Torrie (supra) at page 303 is applicable to the case at bar. That statement is as follows:

"With the greatest respect, I am of the opinion that the learned trial judge misapplied the rule in Hodge's Case (1838), 1838 1 (FOREP), 2 Lewin 227, 168 E.R. 1136, as to circumstantial evidence in that he based his finding of reasonable doubt on non-existent evidence. In Regina v. McIver, (1965) 1964 248 (ON SC), 1 O.R. 306 at 309, (1965) 1 C.C.C. 210, McRuer C.J.H.C. said:

'The rule (in Hodge's Case) makes it clear that the case is to be decided on the facts, that is, the facts proved in evidence and the conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts. No conclusion can be a rational conclusion that is not founded on evidence. Such a conclusion would be a speculative, imaginative conclusion, not a rational one.'

This statement was approved on appeal to this Court, (1965) 1965 26 (ON CA), 2 O.R. 475, 45 C.R. 401 (1965) 4 C.C.C. 182 and an appeal therefrom to the Supreme Court of Canada was dismissed (1966) 1966 6 (SCC), S.C.R. 254, 48 C.R. 4, (1966) 2 C.C.C. 289.

I recognize that the onus of proof must rest with the Crown to establish the guilt of the accused beyond a reasonable doubt, but I do not understand this proposition to mean that the Crown must negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused."

In my view the contention that the Respondent may not have been driving at the time of the accident is, to borrow the words of Evans J.A. in Regina v. Torrie (supra) "conjecture" and is "fanciful". In my opinion no other conclusion could be reached on the evidence than that the Respondent was driving at the material time.

In the present case there is no issue as to the sufficiency of the evidence to establish that an offence, as charged, had been committed and there is no issue as to any question of intent. The only issue was as to identity, and involved the proper application of the rule in Hodge's case. For the reasons given, it is my opinion that the learned trial judge failed properly to apply the rule to the facts of this case. This involves error on a question of law.

(2) the prosecution has adduced a chain of circumstantial proof which links together the evidence from Maven Sekhon, Joanne Power, Cst Aljanazra and the videotape recording entered as Exhibit #3, to prove that the driver of the black-coloured pickup truck is the defendant, Jordan Tavares

[109] When the testimony and observations of Maven Sekhon, Joanne Power, and Cst. Aljanazra, are considered along with the videotape recording entered as Exhibit #3, the prosecution has established a chain of circumstantial proof that proves and identifies the defendant beyond a reasonable doubt as the driver of the black-coloured pickup truck, which had struck the pedestrian on the mobility scooter.

[110] To begin with, all three of the prosecution witnesses have been credible, forthright, and consistent in their testimony. In particular, there is a consistency among the witnesses in their description of the male person they had all identified as the driver of the black-coloured pickup truck, as someone who is white and had taken off his shirt, in his 30s, behaving nervously or freaking out, being visibly shaken and pacing, and using a cellphone and saying he had called 9-1-1.

[111] Furthermore, the chain of testimonial links that establishes the identity of the driver of the pickup truck as the defendant, starts first with Maven Sekhon’s testimony that she had first observed the male person she identifies as the driver, jump out or exit the black-coloured pickup truck from the driver’s side door after Sekhon had observed a dark shadow fall in front of the pickup truck. Because of the short amount of time that had occurred between the time the black-coloured pickup truck had struck the pedestrian in the crosswalk and a male person being observed by Maven Sekhon jumping out or exiting from the driver’s side door of the pickup truck and the fact that no other witnesses had observed anyone else in the pickup truck, except the male person Maven Sekhon had observed exiting from the pickup truck through the driver’s side door, or had observed anyone else in the vicinity of the pickup truck, then it can be reasonably inferred that there could have been only one person in the pickup truck, which is the male person that had been observed by Maven Sekhon jump out and exit the pickup truck and go to the front of the pickup truck.

[112] Secondly, Maven Sekhon had stated that this male person she had identified and determined to be the driver of the pickup truck had also been “freaking out” and holding his hands on his head.

[113] Thirdly, Maven Sekhon had approached this male person that she had identified and determined as the driver of the pickup truck and had asked if anyone had called 9-1-1, and Sekhon had said that this male person had responded that he had called 9-1-1, but was not sure if they could hear him.

[114] Fourthly, Maven Sekhon had also said she had observed this male person that she had identified and determined as the driver of the pickup truck take off his shirt.

[115] Fifthly, Maven Sekhon had described the male person she identified and determined as the driver as being white and in his 30s and having a beard and wearing black clothing and wearing a black baseball cap.

[116] Sixthly, Joanne Power had also testified that the male person that she had identified and determined to be the driver of the black-coloured pickup truck to be a male person she had observed standing next to the black-coloured pickup truck after Power had observed the pickup truck strike the pedestrian in the crosswalk.

[117] Seventhly, similar to Maven Sekhon’s testimony, Joanne Power had also described the male person that she had identified and determined to be the driver of the black-coloured pickup truck as being on his cellphone and possibly calling 9-1-1, visibly shaken, and pacing.

[118] Eighthly, Power had also testified to having an interaction and conversation with the male person she had identified and determined to be the driver of the black-coloured pickup truck. Power had said that she had first asked this male person if the pedestrian had been conscious and then asked if he had any pillows or towels in his pickup truck that could be used for the pedestrian, in which the male person had then taken off his shirt and told Power to use his shirt.

[119] Ninthly, Power had testified that this male person, who had taken off his shirt and who she had identified and determined to be the driver of the black-coloured pickup truck, had been pointed out by herself to a male police officer at the scene of the collision as the driver of the black-coloured pickup truck.

[120] Tenthly, Cst. Aljanazra had confirmed that a witness at the scene of the collision had pointed out the driver of the black-coloured pickup truck to him.

[121] Eleventhly, Cst. Aljanazra pointed out that the male person without the shirt on in the videotape recording entered Exhibit #3 is Jordan Tavares, and that he had obtained the Ontario driver’s licence from the male person pointed out to him as the driver of the black-coloured pickup truck, which was in the name of Jordan Tavares.

[122] Twelfthly, both Maven Sekhon and Joanne Power had testified that the male person that they had identified and determined to be the driver of the black-coloured pickup truck had not been wearing a shirt and that the male person speaking with Cst. Aljanazra in the videotape recording entered as Exhibit #3 had been identified by Cst. Aljanazra as Jordan Tavares is not wearing a shirt.

[123] Thirteenthly, Cst. Aljanazra testified that Mariva Tavares is the registered owner of the black-coloured pickup truck that had struck the pedestrian. The registered owner has the same surname as the defendant. Even though the defence submits that no weight should be placed on the evidence that the registered owner of the pickup truck has the same surname as the defendant, it is more than a mere coincidence that the defendant has the same surname as the registered owner and is relevant and cogent evidence that supports the contention that the defendant had been the driver of the black-coloured pickup truck that had struck the pedestrian.

[124] Fourteenthly, all three prosecution witnesses had testified that the male person that they had identified and determined to be the driver of the black-coloured pickup truck had been freaking out, nervous, visibly shaken and pacing. In addition, both Maven Sekhon and Joanne Power had testified that the male person that they had identified and determined to be the driver of the black-coloured pickup truck had been a white male in his 30s, not wearing a shirt and on his cellphone calling 9-1-1 or saying that he had called 9-1-1. Moreover, Power said the driver was visibly shaken and pacing while Sekhon said the driver was holding his hands on his head and freaking out. In addition, Cst. Aljanazra described the defendant as being nervous and apologetic. Ergo, this male person’s post-collision demeanour and behaviour showing nervousness and being apologetic, freaking out, holding his hands on his head, pacing, and being visibly shaken, as had been observed by the prosecution witnesses, would be consistent with someone that had just struck a pedestrian with a motor vehicle

[125] Additionally, none of the witnesses had testified to seeing anyone else sitting in the pickup truck or exit from the pickup truck, other than the male person Maven Sekhon had observed exiting the pickup truck from the driver’s side door. Accordingly, both Maven Sekhon and Joanne Power’s testimony have been consistent in their description of and in their observations of the post-collision demeanour and behaviour of the shirtless male person they had identified and determined to be the driver of the black-coloured pickup truck and whose identity had been obtained and confirmed by Cst. Aljanazra as Jordan Tavares.

(3) Other possible inferences from the circumstantial evidence that the defendant had not been the driver of the black-coloured pickup truck

[126] As the Supreme Court had indicated in R. v. Villaroman, the trier-of-fact is required to considered other possible inferences from the circumstantial evidence, or absence of evidence, in regard to the innocence of the driver. In the case at bar, the defence submits that because none of the prosecution witnesses placed the defendant, Jordan Tavares, behind the steering wheel or in the driver’s seat of the black-coloured pickup truck that had struck the pedestrian in the crosswalk or that the prosecution witnesses had observed the defendant, Jordan Tavares, driving the black-coloured pickup truck, then the defence contends that the prosecution has failed to prove beyond a reasonable doubt that the defendant had been the driver of the pickup truck because someone else could have been driving the pickup truck that had struck the pedestrian and not the defendant. Even in considering the effects of any gaps in the prosecution evidence that is based on none of the witnesses having observed the defendant driving or in the driver’s seat of the black-coloured pickup truck, the alternative possibility that someone other than the defendant had been the driver is a purely speculative possibility and not a reasonable inference that can be made from the circumstantial evidence or absence of evidence. In particular, the three prosecution witnesses had been asked if they had seen anyone else sitting in the pickup truck, or if they had observed anyone else exit from the truck besides the defendant, or if they had observed anyone else standing near the pickup truck besides the defendant, or if they had observed anyone else with the defendant, but none of the three witnesses had testified to having actually observed anyone else sitting in the black-coloured pickup truck or exit the pickup truck other than the defendant, or anyone else standing near the pickup truck other than the defendant, or anyone else standing with or being with the defendant.

[127] Accordingly, based on the credible testimony of the prosecution’s witnesses, the prosecution has negatived the possibility, or the alternative theory, that someone else other than the defendant had been driving the black-coloured pickup truck.

(a) the “no evidence of driving” defence

[128] To prove that the defendant committed the two Highway Traffic Act offences of “fail to yield to pedestrian” and “driving while under suspension”, the prosecution must first prove that the defendant had been the driver of the black-coloured pickup truck. The prosecution can satisfy this legal or persuasive burden of proof by adducing direct or circumstantial evidence.

[129] However, the defence is raising the “no evidence of driving” defence since there is no direct evidence from any of the prosecution’s witnesses that the defendant had been observed sitting in the driver’s seat or observed actually driving the pickup truck that had struck the pedestrian. On the other hand, a trier-of-fact may rely on circumstantial evidence and on inferences reasonably drawn from that evidence to find that an accused person is indeed the driver of a motor vehicle, even if there is no eyewitness testimony about observations of the accused person sitting in the driver’s seat or the accused person actually driving the motor vehicle. For example, the following circumstantial evidence may be evidence that may be accepted by the trier-of-fact as proof that an accused person was the driver or operator of the motor vehicle in question:

(1) A motor vehicle collision has occurred and a person is observed standing outside the vehicle involved in the accident shortly after the accident or collision had occurred.

(2) Witnesses who appeared at the scene immediately following the accident or collision testified that they saw no other person in the motor vehicle or in the vicinity of the motor vehicle involved in the accident or collision, other than the accused person, and the motor vehicle could not have gotten there without someone driving the vehicle.

(3) Injuries to the accused person from the accident or collision would be consistent with injuries that the driver or operator of the motor vehicle who is involved in the accident or collision would have sustained.

(4) Keys to the motor vehicle that had been involved in the accident or collision were found in the possession of the accused person who was at the scene of the accident or collision.

(5) The motor vehicle that had been involved in the accident or collision is registered in the name of the accused person.

(6) Some means to identify the accused person, such as a personal object or identification, had been found in the motor vehicle that had been involved in the accident or collision.

(7) Fingerprint or DNA evidence had been obtained from the motor vehicle that had been involved in the accident or collision that would indicate the accused person had been in the driver’s seat or inside that motor vehicle.

[130] On the other hand, direct evidence that an accused person is the driver of the motor vehicle in question may include the following:

(1) An accused person admitted to a witness or police officer that they were driving the motor vehicle involved in the accident or collision.

(2) Witnesses or a police officer observed the accused person sitting in the driver’s seat of the motor vehicle or driving the motor vehicle at the time the motor vehicle was involved in the accident or collision.

(3) A dash cam video recording showing the accused person sitting in the driver’s seat or actually driving the motor vehicle at the time the motor vehicle was involved in the accident or collision.

[131] However, even though the evidence of who had been the person driving the black-coloured pickup truck that had struck the pedestrian in the crosswalk is based on the circumstantial evidence that had been adduced by the prosecution, the reasonable or rational inference from that circumstantial evidence is that the defendant, Jordan Tavares, was the driver, and that no one else had been the driver when the black-coloured pickup truck had struck the pedestrian when she was legally in the crosswalk. Ergo, the prosecution has proven beyond a reasonable doubt that the black-coloured pickup truck that had struck the pedestrian in the crosswalk when the pedestrian had the right-of-way had been driven by the defendant, Jordan Tavares.

(U) The issue on Cst. Aljanazra not providing a caution to the defendant before the defendant made any statements to Cst. Aljanazra.

[132] Cst. Aljanazra testified that he did not caution the defendant before he began questioning the defendant, nor before the defendant had provided a statement to him, even though Cst. Aljanazra had already formed reasonable and probable grounds that the defendant had committed a Highway Traffic Act offence. Although the lack of a caution by Cst. Aljanazra may affect the admissibility of any statements that were made by the defendant to Cst. Aljanazra, the prosecution is not intending to adduce into the trial the defendant’s utterances or statements that had been made to Cst. Aljanazra. The prosecution is instead only relying on the testimony of Cst. Aljanazra in obtaining the identity of the male person that had been pointed out to him as being the driver of the black-coloured pickup truck. On this issue, the defence had only been concerned about the admissibility of the defendant’s statements into the trial that had been made by the defendant to Cst. Aljanazra, without Cst. Aljanazra providing a caution to the defendant about providing a statement, but not about Cst. Aljanazra’s testimony about obtaining the driver’s licence and identity of the defendant.

[133] Accordingly, since the prosecution is not attempting to enter the defendant’s utterances or statements that had been made to Cst. Aljanazra as evidence in the trial, except for the defendant’s name and how Cst. Aljanazra had been able to identify the defendant with the defendant’s driver’s licence, the issue on whether the defendant’s utterances or statements that had been made to Cst. Aljanazra should be admitted or excluded does not need to be addressed or considered.

(V) If the defendant were to be convicted of these two charges, then the defendant will not be able to legally drive a motor vehicle, and as a consequence, will lose his ability to make a living to support himself and his family

[134] The defence’s closing submission that if the defendant were to be convicted of these two charges, then the defendant will not be able to legally drive a motor vehicle, and as a consequence, will lose his ability to make a living to support himself and his family, is not a proper submission on whether the prosecution has met its burden in proving that the defendant has committed the two Highway Traffic Act offences beyond a reasonable doubt and should be instead made at the sentencing stage if that stage were to be reached. Accordingly, this defence submission will not be considered or addressed and does not factor into whether the prosecution has proven that the defendant is the driver of the black-coloured pickup truck or whether the defendant had committed the two offences beyond a reasonable doubt.

(W) Conclusion on the identity of the driver of the black pickup truck

[135] Although the evidence of who had been driving the black pickup truck that had struck the pedestrian in the crosswalk is based on circumstantial evidence, the only reasonable or rational inference from that circumstantial evidence is that the defendant, Jordan Tavares, was the driver and that no one else had been the driver when the black pickup truck had struck the pedestrian. Ergo, the prosecution has proven beyond a reasonable doubt that when the black-coloured pickup truck had struck the pedestrian in the crosswalk while the pedestrian had the right-of-way, the pickup truck had been driven by the defendant, Jordan Tavares.

(X) THE DRIVING WHILE UNDER SUSPENSION CHARGE

[136] The second charge of “driving while under suspension” that is contrary to s. 53(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, provides that a person who drives a motor vehicle on a highway while his or her driver’s licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence:

53(1) Every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable,

(a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and

(b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000,

or to imprisonment for a term of not more than six months, or to both.

[137] For the “driving while under suspension” charge, the defendant contends that the prosecution has not proven that the defendant had actually received the notice sent out by the Ministry of Transportation that the defendant’s driver’s licence had been suspended. In response, the prosecution submits that under s. 52(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8, the defendant is deemed to have received notice of the driver’s licence suspension on the seventh day after the mailing of the notice, unless there is evidence to the contrary. And, in respect to any evidence to the contrary, the prosecution submits there has been none that has been adduced at trial.

[138] In addition, the prosecution has proven beyond a reasonable doubt that the defendant had been driving the black-coloured pickup truck northbound on Lancashire Lane, which is a highway for the purposes of the Highway Traffic Act, on July 28, 2020, at approximately 2:20 p.m., when the pickup truck struck a pedestrian in a crosswalk on the southside of Steeles Avenue in the City of Brampton.

[139] Moreover, proof that the defendant’s driver’s licence had been suspended and that the suspension had been still in effect on July 28, 2020, is contained in the Certified Document dated August 16, 2022, from the Registrar of Motor Vehicles of the Ministry of Transportation of Ontario that had been entered as Exhibit #1. That Certified Document states that a male person named “Jordan Tavares” with the same birthdate as the defendant had his driver’s licence suspended effective September 12, 2019, for default of payment of fine and that this suspension was still in effect on July 28, 2020.

[140] Therefore, the prosecution has proven beyond a reasonable doubt that the defendant’s driver’s licence had been suspended on July 28, 2020, when the defendant was driving the black-coloured pickup truck northbound on Lancashire Lane in the City of Brampton at approximately 2:22 p.m. when the pickup truck struck the pedestrian in the crosswalk.

(1) The defendant was notified by regular mail that his driver’s licence had been suspended effective September 12, 2019, for an unpaid fine

[141] The Certified Document from the Registrar of Motor Vehicles of the Ministry of Transportation that is dated August 16, 2022, and entered as Exhibit #1, states that a male person named “Jordan Tavares” had his driver’s licence suspended effective September 12, 2019, for default of payment of fine and that this suspension was still in effect on July 28, 2020 (when the black-coloured pickup truck struck the pedestrian in the crosswalk). The Certified Document also indicates that Jordan Tavares had been notified of the suspension by regular mail sent to Jordan Tavares’ last known address on September 12, 2019, which is the same address in Alliston, Ontario where Cst. Aljanazra said that the defendant still resides at, and which is the same address that is set out in the information containing the two charges. When Jordan Tavares was investigated by Cst. Aljanazra on July 28, 2020, for driving the black-coloured pickup truck on Lancashire Lane that struck the pedestrian in the crosswalk, that date was more than 7 days after the date the notice of suspension had been sent out by the Ministry of Transportation by regular mail on September 12, 2019. Ergo, s. 52(2) of the Highway Traffic Act, R.S.O. 1990, C. H.8, which is the provision that deems the defendant to have received the notice of the suspension on the 7^th day after the notice by mail had been sent out on September 12, 2019, would apply to the defendant, unless the defendant establishes that he did not, acting in good faith, through absence, accident, illness or other cause beyond his control, receive the notice. However, there is no credible evidence that has been adduced at trial that the defendant did not receive that notice of the suspension of the defendant’s driver’s licence that was effective on September 12, 2019.

(2) Does the Prosecution Have To Prove That The Defendant Had Actual Knowledge Of The Defendant’s Driver’s Licence Being Suspended?

[142] Subsection 52(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, provides that where a person’s driver’s licence is suspended, notice of the suspension, in the case of a suspension under section 41 or 42, shall be sent by registered mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry of Transportation, or in the case of all other suspensions, the notice of suspension shall be sent by mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry. But more importantly, s. 52(2) of the Highway Traffic Act provides that the Notice of Suspension that is sent by registered mail or regular mail shall be deemed to have been given on the seventh day after the mailing unless the person to whom the notice is sent establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice [emphasis is mine below]:

Service of notice of licence suspension

52(1) Where a person’s driver’s licence is suspended, notice of the suspension is sufficiently given if delivered personally or,

(a) in the case of a suspension under section 41 or 42, sent by registered mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry;

(b) in the case of all other suspensions, sent by mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry.

Deemed date of service

(2) Notice sent by registered mail under clause (1) (a) or by mail under clause (1) (b) shall be deemed to have been given on the seventh day after the mailing unless the person to whom the notice is sent establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice.

Regulations

(3) The Lieutenant Governor in Council may make regulations,

(a) prescribing other methods of service that may be used in the case of a suspension described in clause (1) (a) or a suspension described in clause (1) (b) and prescribing the day on which the notice sent or delivered by such other means shall be deemed to have been given;

(b) prescribing means of proving that a notice was given by a method permitted by subsection (1) or by a method permitted by regulation.

[143] This issue on whether the prosecution is required to prove that a defendant had actually received notice of a driver’s licence suspension was considered in R. v. Beatty, 2013 ONCJ 686, [2013] O.J. No. 5607 (Ont. C.J.), where Harris J. at paras. 11 to 30, held that the onus had been on the accused to prove on a balance of probabilities that they had reasonably believed that their driver's licence was not suspended at the time that they were caught driving and that under s. 52(2) of the Highway Traffic Act, the notice of the suspension sent by registered mail or regular mail shall be deemed to have been given on the seventh day after the mailing unless the person to whom the notice is sent establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice. However, Harris J. held that s. 52(2) of the Highway Traffic Act did not apply in that particular case because the accused had been caught driving less than seven days after the notice of suspension had been mailed, and accordingly, the accused could not be deemed to have received that notice under s. 52(2). Furthermore, Harris J. held that the Ontario Court of Appeal in R. v. Miller, 1988 4685 (ON CA), 1988] O.J. No. 253 (Ont. C.A.) had stated that the onus would be on an accused to prove, on a balance of probabilities, that they did not know of their suspension and that their lack of knowledge was not due to their own negligence, and that it was an error for the presiding Justice of the Peace to rule that the Crown had to prove beyond a reasonable doubt that the accused had actually received the notice of their suspension [emphasis is mine below]:

The Supreme Court of Canada in R. v. Sault Ste. Marie determined that all regulatory offences fall into one of three classifications. One of these classifications is that of strict liability offences.

The Supreme Court of Canada in R. v. MacDougall and the Ontario Court of Appeal in R. v. Miller stated that driving while suspended falls into the classification of a strict liability offence.

The effect of this is set out in R. v. Montgomery where MacDonnell J. stated that:

Because it is a strict liability offence, the burden on the Crown is discharged upon proof of the actus reus of the offence, namely (i) that the defendant's licence to drive was suspended, and (ii) that while it was suspended, he drove. The Crown does not have to prove knowledge of the suspension, although in most cases it will attempt to do so with the aid of s. 52(2) of the Highway Traffic Act.

So, applying the principles set out in Sault Ste. Marie, once the Crown had proved the actus reus beyond a reasonable doubt, it would have then been open to Mr. Beatty to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.

The onus was therefore on Mr. Beatty to prove on a balance of probabilities that he reasonably believed that his driver's licence was not suspended at the time that he was caught driving.

There was no evidence before the presiding Justice of the Peace that Mr. Beatty believed this. In fact, there was evidence that he did not believe this.

The presiding Justice of the Peace was correct in finding that the presumption, set out in section 52(2) of the Highway Traffic Act, did not apply here.

Section 52 reads as follows:

52.(1) Where a person's driver's licence is suspended, notice of the suspension is sufficiently given if delivered personally or,

(a) in the case of a suspension under section 41 or 42, sent by registered mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry;

(b) in the case of all other suspensions, sent by mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry.

(2) Notice sent by registered mail under clause (1) (a) or by mail under clause (1) (b) shall be deemed to have been given on the seventh day after the mailing unless the person to whom the notice is sent establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice.

Mr. Beatty was caught driving less than seven days after the notice of suspension was mailed and accordingly he could not be deemed to have received that notice.

That should not, however, have been the end of the matter.

It was recognized by both MacDonnell J. in Montgomery and by the Ontario Court of Appeal in Miller that:

Evidence that the notice of suspension mailed by the Registrar of Motor Vehicles was not received would be an important circumstance to consider in relation to this issue.

But MacDonnell J. then continued:

However, such evidence would not necessarily discharge the burden on the appellant unless he also established that he did not otherwise know of the suspension and that his lack of knowledge was not due to his negligence.

I am aware of the decision of R. v. Bellomo where Fairgrieve J. concluded that the proper test in drive suspended cases was whether the defence had left the court with a reasonable doubt as to whether the defendant was aware of the suspension.

I note also that the reasoning from Bellomo was also adopted by Tetley J. in R. v. Lupo.

These decisions by two Justices of the Ontario Court of Justice however are contrary to the ruling by the Ontario Court of Appeal in Miller where it was clearly stated that the onus would be on Mr. Beatty to prove, on a balance of probabilities that he did not know of his suspension and that his lack of knowledge was not due to his own negligence.

So it was an error for the presiding Justice of the Peace to rule that the Crown had to prove beyond a reasonable doubt that Mr. Beatty had received the notice of his suspension.

The Crown needed to prove beyond a reasonable doubt that Mr. Beatty was driving and that, at that time, his licence to drive was suspended. In the absence of evidence that Mr. Beatty reasonably believed that his licence was not suspended, that was all that was needed to convict Mr. Beatty here.

Evidence that Mr. Beatty had not received the notice of suspension mailed by the Registrar of Motor Vehicles would not necessarily discharge the burden on him to prove due diligence unless he also established that he did not otherwise know of the suspension and that his lack of knowledge was not due to his own negligence.

There was no evidence that Mr. Beatty did not know about his suspension.

In fact, there was evidence that he did know that his licence was suspended.

[144] Also, in R. v. Miller, 1988 4685 (ON CA), [1988] O.J. No. 253, the Court of Appeal for Ontario, at paras. 5 and 6, held that s. 34 [now s. 52] of the Highway Traffic Act, R.S.O. 1980, c. 198, the statutory provision in respect to notice, provides for a presumptive inference of service of notice of suspension where it is given by registered mail unless the accused establishes on a balance of probabilities that he did not, for the reasons set forth in the section, receive the notice. Moreover, the Court of Appeal for Ontario explained that the absence of notice would be relevant to such a defence. In addition, the Court of Appeal held that s. 34 [now s. 52] does not contravene either ss. 11(d) or 7 of the Charter [emphasis is mine below]:

The appeal in Laporta, unreported, with one exception, raises the same issues as in Miller. The additional point raised in Laporta was that s. 34 contravened the presumption of innocence protected by s. 11(d), and also contravenes s. 7 of the Charter. Section 34 provides for a presumptive inference of service of notice of suspension where it is given by registered mail unless the accused establishes on a balance of probabilities that he did not, for the reasons set forth in the section, receive the notice.

In our view, s. 34 does not create a reverse onus with respect to an essential element of the offence under s. 35. Section 35 is a regulatory offence to which the defence of due diligence is applicable; absence of notice is relevant to such a defence. Section 34 in our view does not contravene either ss. 11(d) or 7 of the Charter, and this appeal must also be dismissed.

[145] Moreover, the issue about whether the prosecution is required to prove that a defendant had actually received notice of a driver’s licence suspension was also considered in R. v. Valde, [2016] O.J. No. 6732 (Ont. C.J.), in which O’Donnell J., at paras. 8 and 9, had held that the Crown does not have to prove that the defendant had notice of the suspension in order to obtain a conviction, although in most cases it will attempt to do so with the aid of s. 52(2) of the Highway Traffic Act. O’Donnell J. also reiterated that the fact that a defendant did not receive the notice of suspension is relevant to the issue of due diligence, but is not necessarily determinative, and evidence that the notice of suspension that had been mailed by the Registrar of Motor Vehicles had not been received would be an important circumstance to consider in relation to this issue of due diligence. However, O’Donnell J. commented that such evidence would not necessarily discharge the burden on an accused to prove the defence of due diligence, unless the accused had also established that they did not otherwise know of the suspension and that their lack of knowledge was not due to their negligence [emphasis is mine below]:

I was referred by Mr. Kocet to about a dozen authorities and by Mr. Limheng to a few more. I do not propose to refer to all of the authorities cited because I do not believe that all of them provide enlightenment or are particularly germane. Rather, I shall outline the process of reasoning that I believe leads necessarily to the conclusion that the appeals must be dismissed.

a. The determination of any particular case will typically depend on its own facts.

b. Offences can broadly be divided into the categories of true crimes, offences of strict liability and offences of absolute liability. Unlike a truly criminal offence in which the Crown must prove actual knowledge or intent or "wilful blindness" (which is essentially the same as knowledge) beyond a reasonable doubt, in a strict-liability offence the Crown must prove the guilty act (for example that the defendant drove and that his licence was suspended at the time). See: R. v. Sault Ste. Marie, 1978 11 (SCC), [1978] S.C.J. No. 59.

c. The offences here are regulatory offences of strict liability. See: R. v. McDougall, 1982 212 (SCC), [1982] 2 S.C.R. 605.

d. The Crown does not have to prove that the defendant had notice of the suspension in order to obtain a conviction, "although in most cases it will attempt to do so with the aid of s. 52(2) of the Highway Traffic Act". See: R. v. Montgomery, 2006 ONCJ 203, [2006] O.J. No. 2267 at para. 11 (Ontario Court of Justice, MacDonnell, J.)

e. The defendant can avoid conviction despite the Crown proving the guilty act if the defendant can show that he acted with "due diligence", i.e. "that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event." See: R. v. Sault Ste. Marie, supra, at p. 19.

f. The onus upon a defendant in a strict-liability offence is to demonstrate due diligence on a balance of probabilities: R. v. Sault Ste. Marie, supra, at p. 19, which necessarily means that a defendant merely creating a reasonable doubt on the issue of due diligence (the purported standard in Bellomo, [1995] O.J. No. 313 (Ont.C.J.) does not satisfy the standard required by law. The "balance of probabilities" standard has been reaffirmed as recently as June of this year in the Court of Appeal's decision in R. v. Pourlotfali, 2016 ONCA 490, at para. 68.

g. The concepts of "due diligence" or "all reasonable care", "do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt and continuing action. To demand more would, in my view, move a strict liability offence dangerously close to one of absolute liability." See: R. v. Courtaulds Fibres Canada, [1992] O.J. No. 1972 (Ontario Court of Justice, Provincial Division).

h. More recently, in Levis(City of) v. Tetreault, 2006 SCC 12 the Supreme Court of Canada made the following comments that are highly relevant to the application of the due diligence offence in a case such as this: "In Mr. Tétreault's case, the judgments of the courts below confused passivity with diligence. The accused did no more than state that he expected to receive a renewal notice for his licence and that he had confused the licence expiry date with the due date for paying the fees required to keep the licence valid. He proved no action or attempt to obtain information. The concept of diligence is based on the acceptance of a citizen's civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence in criminal law. Consequently, the acquittals are unfounded in this case." (Emphasis added) In light of this language by the Supreme Court, the philosophical underpinnings of the decision in R. v. Bellomo, supra, at paragraph 39 about what it is reasonable to expect drivers to do in relation to keeping up to date on the status of their right to drive can no longer be considered a valid proposition of law.

i. Section 52(2) of the Highway Traffic Act presumptively deems the defendant to have received the notice of suspension seven days after it was mailed to him, "unless the person to whom the notice is sent establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice."

j. That presumption is not operative in this case as the notice was sent out less than seven days before Mr. Valde's offence.

k. The fact that a defendant did not receive the notice is relevant to the issue of due diligence but is not necessarily determinative: see R. v. Miller, 1988 4685 (ON CA), [1988] O.J. No. 253 (the penultimate line of the decision) (Ont. C.A.) and R. v. Montgomery, 2006 ONCJ 203, [2006] O.J. No. 2267, at para. 12: "Evidence that the notice of suspension mailed by the Registrar of Motor Vehicles was not received would be an important circumstance to consider in relation to this issue...However such evidence would not necessarily discharge the burden on the appellant unless he also established that he did not otherwise know of the suspension and that his lack of knowledge was not due to his negligence."

l. To the extent that the decisions of this court in R. v. Bellomo, [1995] O.J. No. 313 and R. v. Lupo, [2008] O.J. No. 5591 purport to apply a heavier burden on the Crown or a lesser burden on the defendant in relation to this issue than the burden set out by the Supreme Court of Canada, the Court of Appeal and other judgments of this court, I cannot consider them to have been properly decided.

Returning to the present case, Mr. Valde's assertion at trial that he did not actually receive the notice sent out by the Registrar of Motor Vehicles on the Thursday before the Sunday he was charged was almost certainly true, but that is not the ultimate issue. Leaving for another day what level of awareness should or should not be attributed to other drivers in other circumstances, the evidence of Mr. Valde's previous suspension history is highly relevant to the question of his exercise of due diligence. I stress that the fact that Mr. Valde was suspended in the past is not relevant to demonstrate that he is the "kind of person" who would drive under suspension; that would be an entirely inappropriate line of reasoning. Indeed, he has no previous convictions for driving under suspension. However, the question of what is "reasonable care" may be informed by a person's level of knowledge, sophistication or experience in a particular field (again leaving aside for another day whether every driver should be taken to be aware of the consequences of not paying a fine within a certain time).

[146] Furthermore, in R. v. Quick, [2015] O.J. No. 5433 (Ont. C.J.), at paras. 6 and 7, McLeod J. held that once the Ministry of Transportation record about the driving licence suspension was in evidence, the prosecution's case was made out. McLeod J. also concluded that in the absence of any evidence suggesting that the accused Mr. Quick was unaware that his licence had been suspended or that could otherwise support the defence of due diligence, a conviction should have then followed [emphasis is mine below]:

… Nonetheless the law is clear. In R. v. Montgomery 2006 ONCJ 203, [2006] O.J. No. 2267, Justice MacDonnell clarified that because this offence is a strict liability offence "the burden on the Crown is discharged upon proof of the actus reus of the offence, namely (i) that the defendant's license to drive was suspended, and (ii) that while it was suspended, he drove". He went on to state that "the Crown does not have to prove knowledge of the suspension", that having established the suspension based on MTO records, the burden shifted to the defendant to show that he was not at fault. In reaching his decision, Justice Mac-Donnell invoked the Ontario Court of Appeal decision in R. v. Miller 1988 4685 (ON CA), [1988] O.J. No. 253 and other relevant jurisprudence. Issues similar to the one's emerging from the present case were also dealt with by Justice Harris in a set of POA appeals - R. v. Lamanna, Jane and Caldwell, [2014] O.J. No. 4901. As in the present case, these defendants were tried in absentia. Unlike the present case, the presiding Justice actually refused to admit the driving record - thereby setting the stage for acquittals. On the appeal, Justice Harris found that once the prosecution met the statutory requirements, a Justice of the Peace had no basis for refusing to receive the records; and once the records were admitted, the prosecution's case was made out. The onus then shifted to the defendants to establish due diligence - which obviously failed because they didn't attend the trial. Justice Harris acknowledged that Justice Fairgrieve took a somewhat different position on the law in the case of R. v. Bellomo [1995] O.J. No. 313 - but he found that position couldn't be maintained, not least because it was effectively overruled by Justice MacDonnell's decision in R. v. Montgomery. I agree completely with Justice Harris.

In this case it appears that despite the Justice of the Peace's misgivings, the MTO record establishing that Mr. Quick was a suspended driver on the date in question was properly received in evidence. Once the record was in evidence, the prosecution's case was made out. In the absence of any evidence suggesting that Mr. Quick was unaware that his licence had been suspended or that could otherwise support the defence of due diligence - a conviction should have followed.

(3) By virtue of s. 52(2), notice of Jordan Tavares’ driver’s licence suspension had been sent by regular mail by the Ministry of Transportation on September 12, 2019, to Jordan Tavares’ last known address

[147] The certified document from the Registrar for the Ministry of Transportation entered as Exhibit #1 states that the notice of suspension of Jordan Tavares’ driver’s licence for