ONTARIO COURT OF JUSTICE DATE: 2024 10 16 COURT FILE No.: Brant (County) 1843305X-00
BETWEEN:
THE COUNTY OF BRANT
— AND —
MELANIE PRECIOUS
Before: Justice of the Peace K.W. Bouchard
Heard on: October 9th, 2024 Decision delivered orally on: October 16th, 2024 Written reasons for Judgment released (by email) on: October 16th, 2024
Counsel: A. Reed................................................................................................... Municipal Prosecutor R. Liley............................................................................................. Agent for the Defendant
JUSTICE OF THE PEACE K.W. BOUCHARD:
Introduction
[1] The defendant, Melanie Precious, is charged with one count of fail to yield from driveway contrary to s.139(1) of the Highway Traffic Act (HTA). It is alleged that the defendant committed the offence on June 25th, 2023, on Colborne St E and Langford Church Rd in the County of Brant. Proceedings were commenced via a certificate of offence under part I of the Provincial Offences Act (POA). The certificate was served on July 3rd, 2023, and filed with the court on July 6th, 2023.
[2] The defendant pled not guilty. I presided at the trial on October 9th, 2024. After evidence was complete and submissions from both parties the matter was adjourned on consent to October 16th, 2024 for decision. For the reasons contained herein I find that the prosecution has proved the actus reus of s.139 beyond a reasonable doubt; however, the defendant has met their burden to demonstrate a due diligence defence on a balance of probabilities, therefore the single count is dismissed.
The Trial
[3] The majority of the facts are not in dispute. Evidence from the 1 day trial showed that on June 25th, 2023 on Colborne St E in the County of Brant; that around 230 am there was a collision between a motor vehicle driven by the defendant, Melanie Precious, and a motor vehicle driven by the witness, Edward Meszaros. Further it is not disputed that the defendant entered Colborne St E, a highway, from a private road or driveway, and that the collision occurred on Colborne St E. It is not disputed that the weather was foggy, and that it was dark meaning that there was no artificial lighting present on the highway. It was not in dispute that Colborne St E runs eastbound and westbound, with 2 lanes in each direction and painted markings; further it was not disputed that the witness was travelling eastbound, where the defendant attempted a left turn moving north to travel westbound along Colborne St E.
[4] While the Defence accepts that the defendant entered Colborne St E from a private driveway, they dispute that the defendant failed to yield the right of way to the witness who was approaching, and that the defendant’s actions did not constitute an immediate hazard. If however the court accepts the actus reus as proven beyond a reasonable doubt they contend that the defendant demonstrated the standard of care expected by a reasonably prudent driver, by looking left/right/left before entering the highway, and that this duly diligent behaviour was demonstrated by allowing another preceding vehicle to pass, before the witness, which the defendant observed despite the fog due to its headlights being on. The defence submits that the witness did not have their headlights on, and thus were not visible to a duly diligent driver.
[5] The Prosecution alleges that the defendant did fail to yield the right of way to the witness who was approaching from the west moving eastbound. The defendant’s movement north onto Colborne St E was done too closely to the witness and constituted an immediate hazard, and that ultimately the defendant’s actions led directly to the collision. The Prosecution submits that there wasn’t clear evidence that the witness was speeding, not that he drove without his headlights illuminated; rather they submit there was evidence that at minimum his fog lights or daytime running lights were activated. They submit that the defendant’s responsibility to yield did not end once they had entered the highway; rather it continued up to the point where they would have safely completed their intended turn.
The Issues
[6] Given the contradictory evidence from the prosecution witnesses and the defendant’s testimony both parties requested that the Court conduct a WD Analysis to determine whether the defendant has raised reasonable doubt as to the actus reus of the offence; or in the alternative whether the prosecution has proven the actus reus beyond a reasonable doubt.
[7] Both parties submit that s.139 of the HTA is a strict liability offence, one where the defence of due diligence would be available to the defendant to avoid fault.
[8] If the court finds that the Prosecution has met their burden to prove the actus reus, the Defence requests that the court consider whether they have proven a due diligence defence on a balance of probabilities.
The Law
WD Analysis?
[9] The Supreme Court of Canada (SCC) in W.D. examined, in the context of faulty charges and recharges to juries, how credibility amongst witnesses is to be analysed by the trier of fact. The court instructed that the focus must remain at all times on the reasonable doubt standard:
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[10] The SCC then clarified in Dinardo that the W.D. steps are not rigid, rather it is the purpose of the analysis that must remain intact, that is to determine whether considering the evidence as a whole, there remains a reasonable doubt:
[23] The majority rightly stated that there is nothing sacrosanct about the formula set out in W. (D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W. (D.); it will depend on the context (para. 112). What matters is that the substance of the W. (D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. In my view, the substantive concerns with the trial judge’s decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment.
[11] Further within J.H.S. the SCC instructed that W.D. does not shift the burden from the prosecution, it is their burden at all times to prove the actus reus of the offence beyond a reasonable doubt:
[13] In short the W. (D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author never claimed for them. W. (D.)’s message that it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt is of fundamental importance but its application should not result in a triumph of form over substance. In R. v. S. (W.D.), 1994 76 (SCC) , [1994] 3 S.C.R. 521 , Cory J. reiterated that the W. (D.) instructions need not be given “word for word as some magic incantation” (p. 533). In R. v. Avetysan, [2000] 2 S.C.R. 745 , 2000 SCC 56 , Major J. for the majority pointed out that in any case where credibility is important “[t]he question is really whether, in substance, the trial judge’s instructions left the jury with the impression that it had to choose between the two versions of events” (para. 19). The main point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt.
[12] Finally, the Ontario Court of Appeal (ONCA) in M.D.R. cautioned trial justices not to engage in credibility contests, where they make their decision based on evidence they prefer; rather the correct standard is to examine contradictory evidence and determine whether it raises a reasonable doubt or not:
[12] The important difference between the reasons for judgment in this case and in J.J.R.D. is that while in the reasons in this case, the trial judge also discussed why he accepted the evidence of the complainant, despite the fact that she had earlier denied any sexual misconduct to the police, and why he rejected the denial by the appellant, he then made the two impugned statements about whose evidence he preferred.
[13] Those two statements indicate clearly that despite the reference to W.(D.), the trial judge engaged in a credibility contest, making his decision on which version he believed based on whose evidence he preferred, rather than by addressing the problems and inconsistencies in the evidence tendered by the Crown and determining and articulating why they did not raise a reasonable doubt.
Fail to Yield - A Strict Liability Offence?
[13] The SCC in Sault St. Marie established the concept, in Canadian Law, that Strict Liability applies presumptively to public welfare offences. The defendant would be afforded the opportunity, after the prosecution had proven the actus reus, to relieve themselves of fault by demonstrating reasonable care (due diligence):
Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as “wilfully,” “with intent,” “knowingly,” or “intentionally” are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.
[14] In Kanda the ONCA reiterated, from Sault St. Marie, the four criteria by which public welfare offences should be analysed to determine whether they are strict liability, or whether that presumption can be rebutted. No submissions were made by either party, nor any authorities cited in this trial that rebut this presumption.
[19] I make two observations about this passage. First, Dickson J. articulated a presumption that public welfare offences are strict liability offences; accordingly, this presumption must be the starting point in an analysis of a regulatory provision such as s. 106(6) of the HTA . Second, the classification of a particular provision follows from an assessment of the four factors set out in the emphasized portion of the passage -- the overall regulatory pattern, the subject matter, the penalty, and the precision of the language used. It is to this assessment that I now turn.
Due Diligence Defence?
[15] West J., sitting as a POA Appeal Court, found in Holton that s.139 of the HTA is strict liability, which would permit a due diligence defence. Further the court found the appropriate standard to be on a balance of probabilities:
[24 ] The parties are agreed s. 139(1) of the HTA is a strict liability offence.
[25] Section 139(1) provides:
Every driver or street car operator entering a highway from a private road or driveway shall yield the right of way to all traffic approaching on the highway so closely that to enter would constitute an immediate hazard.
[26] The prosecution must therefore prove the actus reus of the offence beyond a reasonable doubt. Once this is proven the onus shifts to Mr. Holton to demonstrate on a balance of probabilities that he exercised due diligence or “reasonable care” in making his left turn onto Achilles Road.
[16] In Howie, the trial justice of the peace also found that s.139 of the HTA was strict liability. Further this case summarized the elements of the offence required to prove the actus reus. Finally, that fellow justice applied an objective approach to evaluating a due diligence defence.
[5] Subsection 139(1) of the H.T.A. , reads as follows:
Every driver or street car operator entering a highway from a private road or driveway shall yield the right of way to all traffic approaching on the highway so closely that to enter would constitute an immediate hazard.
[6] Subsection 139(2) of the H.T.A. sets out an exception to the provisions of subsection 139(1) . That subsection reads as follows:
Subsection (1) does not apply to a driver or operator entering a highway from a private road or driveway controlled by a traffic control signal of a traffic control signal system.
[69] However, when I consider her exculpatory evidence in the context of the evidence as a whole, I find that I am not left in a state of reasonable doubt pertaining to her guilt in respect of the actus reus of the subject offence. In reaching this conclusion, I have determined that while it is understandable that the defendant subjectively believed that she had, at the material time, yielded the right of way to all traffic approaching her position on Dorval Drive, such a conclusion is not objectively reasonable. In this regard, the defendant acknowledged that while she felt that she was able to safely enter the curb lane of Dorval Drive at the material time, as it was free of traffic, she was aware of the fact that at the same time there were cars travelling past her location in the driveway in the passing lane.
The Evidence
Officer J. Bund
[17] The officer’s had visible difficulty recalling key elements of his investigation during oral testimony; he was observed taking lengthy pauses to consult his notes (which had been qualified for memory refresh) before responding to direct and cross examination. The officer could not recall if it was himself or another officer who had served the part I certificate of offence on the defendant, and contradicted himself by stating, on cross, that it had in fact been Officer Hall who had served the certificate on July 3rd, 2023 in contradiction to the signed certificate. Overall, I found his testimony to be unreliable, I will therefore indicate which elements of his testimony I accept as reliable and those which are not. From the investigation I accept as reliable his testimony as to the date of the incident, the time, the location of the accident, the foggy weather, the lack of artificial street illumination, and the observation of two motor vehicles which had collided (belonging to the defendant and witness); these pieces of evidence align with all of the other witnesses, and are considered reliable. I further accept the officer’s testimony that he conducted an investigation into driving impaired into the witness, as the witness later corroborated that he was subsequently charged with impaired. I do not consider the evidence entered from the voir dire (voluntary statement of the defendant) to be reliable as again the officer struggled to recall details, with the exception of the evidence that the defendant stated she looked left/right/left before entering the highway to complete a turn, this I consider reliable, as the defendant confirms she made that statement to the officer.
Witness - Edward Meszaros
[18] Under oath, the witness, Mr. Meszaros confirmed that he was investigated for impaired driving, subsequently charged, and pled guilty to being impaired on the night of the collision with the defendant. The court therefore takes notice of these facts as they are a matter of court record and find that Mr. Meszaros’ memory of that incident should be considered unreliable. I did also observe inconsistencies in the testimony of Mr. Meszaros, namely that he at first on direct indicated that he knew his lights were set to auto and were on, but later claimed not to be sure how to operate the lights; rather he believes the lights were on because he could see, but when asked on cross how he knew it wasn’t his day-time running lights he then made the statement that he did not know how to use the lights on his vehicle. The evidence I accept from Mr. Meszaros is that he confirms the date of the collision June 25th, 2023 however he conflicted with the officer and defendant on the time of collision he claims 1am, while they state 230am. As I will indicate when I review the defendant’s testimony I reject the time given by the witness, and accept the time given by the defendant as she was not impaired at the time of the collision. I accept that he was driving eastbound on Colborne St E, but I do not accept that his headlights were illuminated; rather I find based on circumstantial evidence and direct evidence from the defendant that its more likely that his daytime running lights were activated.
Defendant- Melanie Precious
[19] In this trial the defendant chose to testify. She stated that she was leaving her place of employment, after a night shift at a client’s house, and departed from their private driveway at approximately 230am on June 25th, 2023, consistent with the time given by the officer as the time of the collision. Consistent with the officer and the witness she claims that the weather was extremely foggy, and that there was no street illumination. Consistent with the officer’s testimony (defendant’s voluntary statement) she states that she looked left then right then left again towards her intended northbound direction. On cross she confirmed her intent to make a left turn into the westbound lane. The defendant did not waiver whether she checked the left or eastbound direction of oncoming traffic, she stated she checked that directly twice. On direct she claims that she let one oncoming vehicle pass when she observed their headlights in the fog. She then felt it safe and attempted to enter the highway, when a collision occurred with the witness, she then recounted her after collision actions to call EMS. On cross, the defendant claims that after the crash she observed the witness’s vehicle and did not see headlights, rather daytime running lights illuminated. On cross the defendant was hesitant to answer certain questions, she hesitated to answer questions on whether she wore glasses, but confirmed she does and is farsighted. She appeared evasive when asked to answer questions on whether her head injuries or concussion would impact her memory, this evasiveness did throw her credibility into question. I accept that the defendant was driving a vehicle from a private driveway onto a highway, and that she indicated that there was no traffic control signal. I further accept that it was foggy, and there was no street illumination. I also accept from her testimony that the witness’s car did not have its headlights/lamps illuminated, rather the vehicle operated with its daytime running lights, I make this finding based on the inference that if the defendant could see the preceding vehicles lights it is reasonable to infer that she would have seen the witnesses lights had they been illuminated to the same luminosity. Despite some doubts as to her credibility on her answers concerning the impact of the concussion on her memory, I find that taken as a whole her testimony was reliable with respect to her observations of the road, the weather, the lighting, and the collision, and the safety checks she took prior to entering the highway.
The Facts & Findings
W.D. Analysis - Has Defendant Raised Reasonable Doubt as to Actus Reus?
[20] As I summarized in para 3 the majority of the facts of the collision are not in dispute. While I accept as reliable the defendant’s version of events, when taken as a whole, considering all the evidence in this trial, the defendant has not raised a reasonable doubt that she failed to yield the right of way to the witness on June 25th, 2023. Said another way, the defence raised does not raise doubt that the proximate cause of the collision was Melanie Precious entering the highway, failing to yield the right of way too closely to Edward Meszaros, thereby causing an immediate hazard; rather they dispute that she was not duly diligent, I will turn to that defence later in my findings. Additionally, the defence did not raise any evidence that an exception applied under s.139(2) of the HTA, as described in Howie.
Actus Reus - Has Prosecution Proven Act Beyond Reasonable Doubt?
[21] When I examine the evidence as a whole, including those elements of testimony that I found credible and reliable from the officer, the witness, and the defendant, I find that the prosecution has proven the actus reus of s.139 of the HTA beyond a reasonable doubt for the following reasons. First, I find that Melanie Precious was driving a motor vehicle on June 25th 2023 in Brant County, on a private road or driveway, and that no exception applied. Next, I find that on that date she entered Colborne St E from that private road. I accept that the weather was foggy, and the road was not illuminated by streetlights which impacts the determination of what is considered too close. I find that the defendant in those environmental conditions did enter the highway too closely to the witness, and thereby did constitute an immediate hazard that led directly to the collision. All the evidence points to that conclusion and no evidence contradicts that finding.
Available Defence - Has Defendant Proven Due Diligence on Balance of Probabilities?
[22] Having proven the actus reus, the defendant is afforded an opportunity to prove a due diligence defence on a balance of probabilities. As indicated, I found the defendant’s testimony reliable that she did look left, then right, then left prior to entering the highway. Further I accepted as reliable that she let a prior vehicle pass, that had its headlights illuminated, and only then entered the roadway. The prosecution on cross, questioned the defendant whether she had lowered her window to use audio clues to augment the lack of visual cues in the dense fog. With respect to the prosecution, I don’t find this argument compelling. The standard for due diligence, as summarized by the honourable court in Howie is not whether the defendant subjectively believed they acted diligently, but whether they objectively took reasonable care in all the circumstances to avoid the offence; the standard is not one of perfection but one where the court evaluates what a reasonably prudent driver should do. While no doubt helpful in those circumstances, it is by no means objectively reasonable to insist that a reasonable driver must have lowered their window at 230 am, in dense fog, to listen for oncoming traffic, this instead approaches a level of perfection not reasonableness. I find that in the circumstances, and considering the evidence of the defendant that she did demonstrate reasonable care by looking in each direction, attempting to observe oncoming traffic. That she failed to observe the witness’s vehicle despite these reasonable efforts can reasonable be inferred to result form the lack of illuminated headlights on the witness’s vehicle.
[23] As the Defence has proven a due diligence defence on a balance of probabilities, I find that the defendant was without fault, and the charge is dismissed.
Signed: Justice of the Peace K.W. Bouchard