ONTARIO COURT OF JUSTICE

CITATION: R. v. Burns, 2024 ONCJ 91

DATE: 2024 02 13

COURT FILE No.: 3960 999 18 821-00

IN THE MATTER OF an appeal under subsection 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended;

B E T W E E N :

HIS MAJESTY THE KING

Respondent

— AND —

JAMES BURNS

Appellant

Before Justice D.A. Kinsella Heard on October 6, 2023

Reasons for Judgment released on February 13, 2024

Jason Pilon................................................................................ counsel for the Respondent

Mitchell Ackland..................................................... agent for the Appellant James Burns

On appeal from the conviction by Justice of the Peace Snyder on June 8, 2022.

KINSELLA J.:

Overview

[1] Mr. Burns was charged with careless driving contrary to section 130 of the Highway Traffic Act (“HTA”). There was a trial before the Justice of the Peace, evidence being heard on December 11, 2019, April 20, 2022 and May 18, 2022. Justice of the Peace Snyder found Mr. Burns guilty on June 8, 2022. He then heard, and ultimately dismissed, an application brought by the defendant under the Canadian Charter of Rights and Freedoms, section 11(b). His Worship imposed sentence October 26, 2022. Mr. Burns appeals against his conviction only.

[2] Mr. Ackland, who represented Mr. Burns at his trial, alleges the following grounds of appeal:

i. The learned Justice of the Peace erred in failing to order a mistrial;

ii. The learned Justice of the Peace failed to properly consider the caselaw provided by the Appellant at trial on the issue of momentary inattentiveness;

iii. The learned Justice of the Peace erred in his interpretation of the “ordinary prudent driver” standard and applied an erroneous standard of driving on the Appellant; and

iv. The learned Justice of the Peace erred in fact in his assessment of the dash camera evidence.

[3] Although not expressly listed as a ground of appeal, it was apparent in both his written materials and oral submissions that the Appellant was also taking issue with the learned Justice of the Peace’s reasons.

Summary of facts

[4] The facts as heard at trial are as follows.

[5] There was no dispute that on August 16, 2018, around 6:30 p.m., there was a motor vehicle collision between a small black Mazda 6 sedan, operated by John MacNaughton, and a large white pick-up truck operated by James Burns. The weather on August 16, 2018 was warm and sunny and the roads were clear.

[6] The collision occurred on highway 138 heading southbound from St. Andrews West (in South Stormont Township) towards Cornwall ON. At the time of the accident, Mr. MacNaughton had brought his vehicle to a stop to turn left (east) into a gas station. Mr. Burns, who was directly behind him, struck him from behind.

[7] The collision was captured on a vehicle dashboard camera. That dashboard camera belonged to Dan Bissonnette and was entered as an exhibit on consent.

[8] Highway 138 is a two-lane highway that connects Cornwall, ON in the south to Highway 417 and Ottawa in the north. It is the main thoroughfare between Cornwall and Ottawa and is a very busy road, used by both private and commercial vehicles, including tractor-trailers.

[9] St. Andrews West is a small community situated at the corners of highway 138 and county road 18. At that corner is a large church, a schoolground directly across the road, a local restaurant (Quinn’s Inn) and a convenience store. Just south of that intersection, on the east side, is a firehall, which shares a common driveway with an outdoor pool, and south of those a gas station to the east and cemetery to the west. There are several residences in the area as well. The firehall and gas station entrances are very close to each other, perhaps no more than 10 – 15 metres apart. The posted speed limit in that area is 50 km/h.

[10] None of these facts were in dispute. What was at issue at trial was whether Mr. Burns had driven his vehicle carelessly.

[11] Dan Bissonette was the first witness called by the Crown. It was his vehicle which had the dashboard camera in it. He was quite candid in his evidence that he did not really see the accident and had no independent recollection of it other than what was captured on his camera, which he had reviewed afterwards. He did testify, however, that he believed from watching the video that the Mazda activated its left turn signal just prior to the collision.

[12] Cst Marc Evans was the investigating officer. He arrived after the accident had occurred and most of his information also came from his review of the dashboard camera video. He testified that, in his view, both the Mazda’s brake lights and the left-hand turn signal were visible on the video just before the accident happened. He also offered some testimony about the firehall sign, as he had previously worked for the fire department. This sign, which is close to the road on highway 138, was placed in a prominent position such that it could be viewed by passing traffic. The sign has a portion that allows for letters to be affixed to it, much like a restaurant sign, so that messages could be shown on both sides.

[13] Mr. MacNaughton testified. He was travelling southbound on highway 138, returning home to Cornwall after working in Ottawa. He testified that his vehicle was in good mechanical condition. He recalled that the traffic conditions for vehicles heading northbound was quite heavy, and less so for traffic going southbound. He signalled left to turn into the gas station and waited for traffic heading north to pass him so he could safely turn left. He testified that, in his rear-view mirror, he saw a car approach and pass him on his right heading southbound. He looked into his rear-view mirror again and saw a large white pickup truck, which he believed was an F350, speeding towards him and recalled thinking “my God, he’s not slowing down.” That vehicle then struck him from behind, and the force pushed his vehicle ahead and to the right of the road. He believed he had been stopped with his signal light flashing for about “20 to 30 seconds” before the collision. The force also caused his airbags to deploy, and his vehicle was completely written off, with extensive rear-end damage.

[14] Much of what Mr. MacNaughton recalled about the accident, however, was directly contradicted by the dashboard camera video. The video clearly shows Mr. MacNaughton’s car followed by Mr. Burns’ truck, another white truck, and then the vehicle operated by Mr. Bissonnette. None of those vehicles passed Mr. MacNaughton on his right-hand side. The video also shows that the collision happened only a few seconds, less than 10, after Mr. MacNaughton put his turn signal on.

[15] Mr. Inparajan worked at the gas station in St. Andrews West and was called as a witness by Mr. Burns. He described traffic heading southbound as quite heavy and that vehicles were “all backed up”. He also testified that the road was closed in one direction due to construction and that traffic was being restricted to one lane prior to the accident. He also said that he only really saw what happened after the accident. His testimony was directly contradicted by the video evidence, which clearly shows both lanes of traffic open without any obstruction until after the accident happened.

[16] Mr. Burns testified he was with his wife heading to Cornwall both for work purposes as well as to have a spontaneous anniversary dinner. At the time he was operating a Ford F350 pick-up truck, which he described in his testimony as a “commercial vehicle” because it is a work vehicle outfitted with specialized equipment to respond to Hazmat situations. He estimated that the total weight of the vehicle with its’ equipment is about 4000 kgs. As a result, Mr. Burns agreed it would take longer to stop a vehicle of that size than a smaller one. He testified he was travelling around the posted speed of 50 km/h or slightly less.

[17] Mr. Burns testified that he had property in the area and was interested in when the fire ban might be lifted. He decided to glance over to look at the firehall sign, which mentioned the fire ban, as he passed. He testified he did not slow down or brake. He believed the black Mazda was about 4 – 5 car lengths ahead of him. Before he decided to look at the sign, he did not see anything that would suggest the black car was going to stop. He glanced at the sign long enough to read it and when he turned his attention back to the road, he noticed that the car in front of him had come to a stop. He slammed on his brakes and struck the car directly in the rear. He did not believe the car was pushed forward by the accident but that the driver had moved it ahead. He then put on his four- way flashers and he and his wife got out to make sure everyone was okay.

[18] In cross-examination, he agreed that he was very familiar with the area and knew it could be busy. He was aware that vehicles travelling southbound would frequently have to turn left to access the businesses and other facilities on the east side of the road. He agreed that it was possible that the vehicle in front of him had turned on his left turn signal and/or put on his brake lights in the short time it took him to look at the firehall sign. He also agreed that he had chosen to take his eyes off of the road and look at the sign because he did not foresee any risk.

[19] In cross examination Mr. Burns was asked about his criminal record. Mr. Ackland objected to this line of questioning for two reasons: first he submitted that the defence had never been provided a copy of this record and second that it was overly prejudicial. The Crown responded that the record had in fact been included with disclosure. The court took a recess to see if the issue could be sorted out. When they returned, Mr. Ackland continued his objection to the use of the criminal record but no longer argued that it had not been disclosed. The learned justice of the peace allowed the cross- examination.

[20] When the court resumed May 18, 2022, the defendant filed materials which showed that Mr. Burns had obtained a record suspension from the Parole Board. The Crown had not been aware of this prior to receiving the materials. The defendant sought a mistrial for the use of the criminal record but provided no further factual basis to support any assertion that it had not been disclosed. The Crown, in opposing the motion, advised the court that they would not be making any reference to the criminal record and invited the learned justice of the peace to simply disabuse his mind of it. Ultimately that was what His Worship did and denied the defendant’s application for a mistrial.

[21] Justice of the Peace Synder issued his decision on June 8 2022. In that ruling, he indicated that he had difficulty with much of Mr. MacNaughton’s testimony, especially those portions which were directly contradicted by the dashboard camera video. As such,

he was only prepared to accept those portions of his evidence that were corroborated by the video.

[22] His Worship also rejected the testimony of Mr. Inparajan as being unreliable, and also because it was clear that anything he did see happened after the accident.

[23] The learned justice of the peace reviewed the video. He noted that he could see, just prior to the accident, that the Mazda had its left turn signal on and, he believed, the brake lights could be seen.

[24] The learned justice of the peace then reviewed the testimony of Mr. Burns in detail. Although he does not expressly say so, it is clear that His Worship accepted the testimony of Mr. Burns. He accepted that Mr. Burns believed he had time to look at the firehall sign and then continue his driving, even though this action was being done in an area which is busy and where people can be expected to turn left into driveways, businesses and homes. He accepted the testimony of Mr. Burns that he did not brake or slow down, even though he knew his vehicle would take longer to bring to a stop, and that he now regretted his decision not to slow down.

[25] His Worship also addressed the defence submissions that the actions of Mr. Burns amounted to momentary inattentiveness. His Worship noted that momentary inattentiveness could amount to careless driving when considered in the appropriate context by measuring the inattentiveness against the standard expected of the reasonably prudent driver. He then concluded that the Crown had in fact proven the case against the appellant beyond a reasonable doubt.

Standard of Review

[26] This proceeding was commenced by an information laid under Part III; as such this appeal is governed by section 116 of the Provincial Offences Act (“POA”). Unlike an appeal under section 135 of the POA, which is conducted by means of review and uses very broad language, section 116 limits when a court may intervene.

[27] Pursuant to s. 120, this court may only allow an appeal if it is satisfied that any one or more of the three grounds have been met:

i. the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

ii. the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

iii. on any ground, there was a miscarriage of justice.

[28] The wording of that section is identical to the appellate provisions in s.686(1)(a) -- (b)(iii) of the Criminal Code and so cases considering the scope of appellate review in relation to s.686 are of assistance in this context.

[29] An appellate court is entitled to review the trial evidence, re-examine it and re- weigh it, but only for the limited purpose of determining if it can support the conclusion of the Justice of the Peace: see R. v. Burns 1994 127 (SCC), [1994] SCJ No 30, at paragraph 14. The question that must be asked is whether the Justice of the Peace could reasonably have reached the conclusion he did on the evidence heard at trial. Provided that threshold test is met, the appellate court is not to substitute its view for that of the Justice of the Peace, nor permit any doubts it may have to cause it to order a new trial: Burns, supra at paragraph 15.

[30] The appellate court must give considerable deference to the findings of fact made by a Justice of the Peace at trial and the inferences drawn from those facts: see R. v. Biniaris 2000 SCC 15, at paragraph 24. To overcome this deference, the appellant must demonstrate that the findings are tainted by some legal error, are the result of a material misreading of the evidence or are unreasonable: see R. v. Le 2018 ONCA 56 at paragraph 8.

Test for a Mistrial

[31] A trial judge has an inherent authority to control the court’s process. Part of this inherent authority includes the jurisdiction to declare a mistrial in compelling circumstances. The power to declare a mistrial is an inherent, discretionary remedy of a trial judge: R. v. Dueck, 2011 SKCA 45 at paragraph 30.

[32] The test for declaring a mistrial rests on identifying the harm which the party claims has occurred as well as the available remedies. The extent of the harm alleged is crucial, as a mistrial is available only when there has been “a fatal wounding of the trial process” for which no other remedy is available: R. v. Lawson [1991] B.C.J. No. 2197 (CA).

[33] The harm contemplated generally involves circumstances where there is a real danger that trial fairness has been compromised, the accused has suffered prejudice, or that there could be a miscarriage of justice: see R. v. Emkeit (1972), 1972 169 (SCC), 6 C.C.C. (2d)1 (S.C.C.) and R. v. Lessard 1992 3103 (QC CA), [1992] J.Q. No. 821 (C.A.)

[34] Once harm has been found, the trial judge must then consider if any corrective measure which has been brought, or could be brought, can remedy the irregularity: see

R. v. Khan (2001), 2001 SCC 86, 160 C.C.C. (3d) 1 (S.C.C.).

[35] A trial judge's discretion to declare a mistrial is a power which should only be used in the clearest of cases. R. v. Lawson, supra.

Careless Driving

[36] Careless driving is set out in section 130 of the Highway Traffic Act, which states:

Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway ...

[37] The law with respect to careless driving is well settled. One of the leading cases on the offence of careless driving remains the Ontario Court of Appeal's decision in R. v. Beauchamp 1952 60 (ON CA), [1952] O.J. No. 495. More recently, the Ontario Court of Appeal had an opportunity to further clarify the legal test and principles surrounding the offence of careless driving in R. v. Shergill 2016 ONCJ 163, [2016] O.J. No. 4294 when it affirmed the Ontario Court of Justice's decision and denied a leave to appeal.

[38] In R. v. Shergill [2016] O.J. No. 1503 (CJ), Justice Epstein was asked to answer the question “can momentary inattentiveness provide a defence to careless driving?”. The court’s answer, not surprisingly, was that any answer would be very fact specific. Justice Epstein, at paragraph 29 stated: “I emphasize that it is, in my view, incorrect to boldly state that momentary inattentiveness cannot constitute careless driving. The trier of fact must conduct an analysis of the evidence in each case and must measure the evidence of inattentiveness against the standard expected of a reasonably prudent driver.”

Misapprehension of Evidence

[39] As previously mentioned, appellate courts must grant trial courts considerable deference particularly regarding findings of fact.

[40] Not every misapprehension of evidence will justify interference by the appellate judge. To justify intervention, the appellant must demonstrate to a stringent standard some link between the misapprehended evidence and the trial judge’s reasons that resulted in the conviction. The appellant court must be satisfied that (1) there has been a misapprehension of the evidence and, if so, (2) the misapprehension was so crucial to the reasoning process that it resulted in an unreasonable verdict or a miscarriage of justice: R. v. Lohrer [2004] S.C.R. 732, at paragraph 2.

Sufficiency of Reasons

[41] It is well-established law that a trial judge has a duty to give adequate reasons. Sufficient reasons provide transparency, allowing the parties to see why the decision was made and permitting meaningful appellate review.

[42] As noted by the S.C.C. in R. v. Sheppard 2002 SCC 26, reasons are not intended to be driven by some “abstract notions of judicial accountability’ (at paragraph 42). Rather, at paragraph 46, Binnie J. set out the following test:

Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that count intervene.

[43] Reasons must be both factually and legally sufficient. Factual sufficiency is concerned with what the judge decided and why. This is considered ordinarily to be a “very low bar” : see R. v G.F. 2021 SCC 20, [2021] SCJ No 20.

[44] A review for sufficiency must be both “functional and contextual”. It is wrong for an appellate court to “finely parse the trial judge's reasons in a search for error.” Rather, the reasons must be read as a whole, with a consideration of the issues at trial, to determine if they adequately explain how and why the judge decided those issues:

R. v G.F. supra, at paragraph 69.

[45] I am mindful that the trial courts presided over by Justices of the Peace are extremely busy. They are high volume courts that require the justices of the peace to deliver oral and sometimes even written judgments on a daily basis. It would be wrong to require them to explain in detail every essential point upon which they based their decision or verdict: see R. v. Boucher, 2005 SCC 72 at paragraph 29.

[46] Just as a judge is “presumed to know the law with which they work day in and day out” (see R. v. Burns, supra, at paragraph 18), “the trial judge is not required to recite pages of "boilerplate" or review well-settled authorities in detail, and failure to do so is not an error of law”: see R. v. R.E.M., 2008 SCC 51, [2008] 3 SCR 3, at paragraph 45.

[47] Even as it relates to seminal cases, such as R. v. W.(D.) 1991 93 (SCC), [1991] 1 S.C.R. 742 (SCC), a trial judge is not required to cite the case as a “sacrosanct formula”. In fact, the assessment of credibility will not always “lend itself to the adoption of the three distinct steps suggested in W. (D.)”. Rather, the appellant court must review the entire context. If it is evident from a review of the entire reasons why the trial judge rejected the evidence of the accused or was not left with a reasonable doubt by it, that is all that is needed: see R. v. Dinardo, 2008 SCC 24, [2008] 1 SCR 788.

[48] The same can be said when it is clear from a review of the reasons that the trial judge accepted the evidence of an accused.

Doctrine of Stare Decisis

[49] The doctrine of stare decisis requires that, in matters of law, courts of inferior jurisdiction are bound to follow precedents set by courts of superior jurisdiction. The purpose of stare decisis is to promote certainty in the law.

[50] The following description of the meaning and purpose of stare decisis was set out in R. v. Koziolek, [1999] O.J. No. 657 (Ont.Gen.Div.) at page 12:

The phrase stare decisis is an abbreviation from the Latin phrase stare decisis et non quieta movere which may be translated as "to stand by decisions and not to disturb settled matters". The "rule" as it is often described, has been commonly understood in modern terms to mean that every court is bound to follow any case decided by a court above it in the hierarchy. However, as the entire phrase itself suggests, the "doctrine of stare decisis also requires that cases be decided the same way when their material facts are the same": see Glanville Williams, Learning the Law (9th ed.), 1973. [emphasis added]

[51] Judicial comity refers to situations where courts recognize and enforce each other’s legal decisions as a matter of courtesy, or based on the need for reciprocity, but not necessarily as a matter of law. Courts observing comity usually defer considering a case if the same issues are being considered in a court in another jurisdiction or a court of competent jurisdiction.

[52] There are sound reasons for both the application of stare decisis as well as judicial comity, as it is vital that as much certainty as possible be brought to the law. However, the application of either principle:

…should advance the interests of justice, not undermine them. It is for this reason that I am also of the view that the determination as to whether to follow a decision of another judge of the same court should not begin and end with a rote application of Re Hansard Spruce Mills; instead, that determination should also be informed by all relevant factors that bear upon whether it is in the best interests of justice in the context of the particular case at hand to do so.[emphasis added]

R. v. Sipes 2009 BCSC 285, at paragraph 11.

Grounds of Appeal

Failure to Order a Mistrial

[53] I will address this ground of appeal first. In his materials, Mr. Ackland suggests that the failure on the part of the Crown to provide him with his client’s criminal record prior to Mr. Burns’ taking the stand infringed upon his right to a fair trial.

[54] There are two issues with this submission. First, while it is true that the initial objection to the Crown’s use of the criminal record included the fact that it had not been disclosed, after the parties returned that ground was apparently abandoned. As such, there was no factual record before the learned Justice of the Peace that this disclosure had in fact been delayed, as noted by his Worship in his ruling on the application for a mistrial.

[55] Even if there had been a factual basis to support that this was late disclosure, ultimately the issue was rectified when the parties agreed that Mr. Burns had been subject to a pardon. As Justice of the Peace Snyder made clear in his ruling, he did not place any weight whatsoever on the record. In fact, as will be discussed later on, the learned Justice of the Peace did not make any adverse findings of credibility at all against Mr. Burns.

[56] If this was a breach there was a more than adequate remedy provided, as the record was never relied on by the learned Justice of the Peace. His Worship was well within his authority to grant the remedy that he did, as this case did not meet the threshold of a “fatal wounding” necessary to justify a mistrial.

[57] This ground of appeal is dismissed.

Failure to Consider Applicable Case Law Regarding Momentary Inattention

[58] At trial, Mr. Ackland filed thirteen cases in support of his argument that Mr. Burns’ actions amounted to no more than momentary inattentiveness. In his decision, the learned Justice of the Peace failed to refer to four of those cases, namely:

i. R. v. Woldenga [2009] OJ No 629 (CJ)

ii. R. v. Globocki [1991] O.J. No. 214 (CJ)

iii. Burlington (City) v. Boyd [2019] O.J. No. 4275

iv. R. v. Morgan [2008] O.J. No. 2967 (CJ)

[59] R. v. Woldenga, was written by a judge of the Ontario Court sitting as an appellate court on a POA appeal. R. v. Globocki was written by a judge of the Ontario Court sitting as a trial judge on a HTA trial. Both Burlington (City) v. Boyd and R. v. Morgan were decisions from justices of the peace sitting as trial court justices.

[60] Paragraph 31 of the appellant’s factum states:

It is respectfully submitted that had Justice of the Peace Snyder considered the Boyd, Woldenga, Morgan, and Globocki decisions, the consistency in the similarity of the material facts between those cases and the instant case would have been realized. In this vein, the employment of the rule of stare decisis was necessary.

[61] This is not a correct statement of the law. First, only the Woldenga decision could properly be considered a decision of a superior court, since the judge of the Ontario Court was sitting as an appellate court. That, however, is but one factor to be considered. The principle of stare decisis requires that cases be followed when their material facts are the same. While there may be some similarities in facts between these cases and this one, it cannot be said that the materials facts the same such as to engage the principle of stare decisis.

[62] The same reasoning applies with respect to judicial comity.

[63] It must not be forgotten that reason for these principles is to ensure some clarity the law while not losing sight of the fact that most criminal and quasi-criminal cases are unique.

[64] I also note here that it is incorrect to conclude that, because the learned justice of the peace did not specifically mention these cases, it must mean he did not consider them.

[65] It is the practice of some jurists to list all the cases provided to them during the hearing at the outset of their decision. Some list them as an appendix. Yet others will simply put in a passage that they have reviewed the decisions provided to them by the parties.

[66] While helpful, none of that is required. As noted by our Supreme Court of Canada in R. v. Burns and R. v. R.E.M., the learned justice is expected to know the law and is not required to cite every case that was considered.

[67] In his ruling, the learned justice of the peace was very much alive to the argument being advanced on the part of the appellant that the accident was a result of momentary inattentiveness which fell short of the requisite standard for careless driving. His Worship expressly addressed, and ultimately rejected, that argument.

[68] As such, this ground of appeal is dismissed.

Failure to Apply the Requisite Standard of Driving on the Appellant

[69] The appellant submits that the learned justice of the peace erred in his application of the requisite standard for an ordinary prudent driver. In sum, the submission appears to be as follows. R. v. Beauchamp, supra says that a finding of guilt for careless driving must consider “existing circumstances of which he was aware or of which a driver exercising ordinary care would have been aware.” The appellant submits that the learned justice of the peace erred because he predicated the finding of guilt on circumstances which were speculative in nature.

[70] The learned justice of the peace thoroughly correctly set out the applicable case law in his reasons.

[71] This submission is not grounded in the facts, or the findings made by the learned justice of the peace. His Worship noted that Mr. Burns was aware of the location, the typical use for this location, including that people could be stopping to turn left into any number of locations, and the relatively small distance between the firehall sign and the garage entrance. These were not speculative circumstances but rather existing circumstances of which he was aware.

[72] While the learned justice of the peace accepted Mr. Burns’ belief that he could look at the sign safely, he ultimately found that his decision to do so fell short of the requisite standard of a reasonably prudent driver. That finding was open to him on the evidence before him and is subject to considerable deference.

[73] This ground of appeal is dismissed.

Error in the assessment of the dashboard camera evidence

[74] As previously noted, the learned justice of the peace reviewed the dashboard camera video. Pursuant to R. v. Nikolovski 1996 158 (SCC), [1996] 3 SCR 1197, it was open to him to do so.

[75] The appellant submits that the learned justice of the peace failed to indicate which specific facts on the video he accepted, such as the length of the time the turn signal or brake lights were active. He further submits that the failure of the justice of the peace to include these facts amounts to an error.

[76] As noted above, the trial justice is not required to list out every fact he relies on in coming to his decision. It is clear from his decision that he relied on the evidence as set out in the video as well as the testimony from Mr. Burns in determining that Mr. Burns’ actions in turning to look at the sign under those circumstances fell short of what would be expected of a reasonably prudent driver. That is the correct test.

[77] I also reviewed the dashboard camera video for the limited purpose of determining if it could support the conclusions of the learned justice of the peace. The video shows that the distance between the firehall sign and the first entrance to the garage is extremely short, less than the 10 to 15 metres estimated by the witness. The video also, in my view, clearly shows that the Mazda had activated its left turn signal and I also believe that the video shows the brake lights being activated, although admittedly they are more difficult to see in the bright light.

[78] There is nothing to suggest that the learned justice of the peace erred in his assessment of the dashboard camera video.

[79] This ground of appeal is therefore dismissed.

Conclusion

[80] Upon a review of the record before me, I cannot find that: the verdict was unreasonable or unsupported by the evidence; the learned justice of the peace erred in his application of the law; or that there was any miscarriage of justice.

[81] The appeal is therefore dismissed.

Released: February 13, 2024

Signed: Justice D.A. Kinsella