Case Name:

R. v. Cross

IN THE MATTER OF an Appeal under the ProvincialOffences Act

BetweenRussell Cross, Appellant, and

Her Majesty the Queen, Respondent

[2008] O.J. No. 4106

2008 ONCJ 504

79 W.C.B. (2d) 657

Ontario Court of Justice

J.W. Bovard J.

Heard: October 2, 2008.Judgment: October 3, 2008.

(13 paras.)

Criminal law -- Appeals -- Grounds -- Question of law -- Appeal of conviction for driving withoutdue care and attention under s. 130 of the Highway Traffic Act allowed and new trial ordered --The justice erred in law by failing to show in his/her reasons that the steps outlined in D.W. wereobserved -- Although it could be inferred that the justice disbelieved the appellant about stopping atthe red light, the justice failed to consider whether, even if he did not believe the appellant, hisevidence left him in a reasonable doubt -- Highway Traffic Act, s. 130.

Transportation law -- Motor vehicles and highway traffic -- Rules of the road -- Careless driving --Appeal of conviction for driving without due care and attention under s. 130 of the Highway TrafficAct allowed and new trial ordered -- The justice erred in law by failing to show in his/her reasonsthat the steps outlined in D.W. were observed -- Although it could be inferred that the justicedisbelieved the appellant about stopping at the red light, the justice failed to consider whether, evenif he did not believe the appellant, his evidence left him in a reasonable doubt -- Highway TrafficAct, s. 130.

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Appeal of conviction for driving without due care and attention under s. 130 of the Highway TrafficAct. The arresting officer alleged the accused had sped through a red light at 100 kph. The appellantargued that although he had gone through the red light, he had stopped and treated it as a four-waystop because the light took so long to change, and that he only drove through when it was safe to doso.

HELD: Appeal allowed and new trial ordered. The justice erred in law in convicting the appellant.The justice failed to show in his/her reasons that the steps outlined in D.W. were observed.Although the inference could be made from the reasons that the justice disbelieved the appellantabout stopping at the red light, the justice failed to consider whether, even if he did not believe theappellant, his evidence left him in a reasonable doubt. He failed to refer to the third part of the D.W.test.

Statutes, Regulations and Rules Cited:

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 130

Provincial Offences Act, R.S.O. 1990, c. P.33

Court Summary:

Charge - Careless driving.

Date of Convication - October 20, 2006.

Appeal from - Conviction by Trial Justice of the Peace G. Miller.

Disposition of Appeal - Appeal Allowed, new trial ordered.

Counsel:

M. Riddell for the appellant.

J. MacPherson for the Crown.

Endorsement

1 J.W. BOVARD J.:-- This is the court's endorsement regarding its decision in this appeal.

2 The facts of this case were that the appellant ran a red light at 12:20 a.m. at the intersection ofLawrence Avenue East and Charlottetown Boulevard in Toronto. It was cold and the roads were

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wet. Officer Clarke said he saw him from 200 meters away and estimated his speed at 100 KPH andsaw him drive through the red light without stopping. He said that the traffic was light, but myreading of the evidence is that the only drivers on the road were the appellant and officer Clarke.The officer said that he had to drive three or four hundred meters to catch the appellant after he ranthe red light because he was driving so fast.

3 The appellant said that he stopped at the red light and because it takes so long for it to changehe treated it as a 4-way stop and drove through it after checking carefully that it was safe to do so.He did not see the officer's car. He denied driving 100 KPH and said that it took the officer so longto catch up to him because he was farther away from him than he said he was. He said the officerprobably saw him go through the red light, but did not see that he stopped first.

4 Credibility is clearly an important issue in this case. The Supreme Court of Canada stated inD.W. v. The Queen 63 C.C.C. (3d) 397 that where the accused testifies and credibility is an issue:

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 inreasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you mustask yourself whether, on the basis of the evidence which you do accept, you areconvinced beyond a reasonable doubt by that evidence of the guilt of theaccused.

5 Subsequent case law states that although it is not required to repeat these exact words whenassessing credibility, the judge must indicate somehow that he or she applied this test to theevidence.

6 In the present case, the Justice of the Peace did not refer to this case, nor did he apply it.

7 The Justice analysed s. 130 of the Highway Traffic Act which says that a persons is guilty ofcareless driving if he or she "drives a vehicle ... without due care and attention or withoutreasonable consideration for other persons using the highway ..." He rightly noted that there were noother persons using the highway except the appellant and the officers (and they were at least 200meters from him when he ran the red light) so that part of the section did not really come into play.However, he found that "due care and attention" was in play.

8 Regarding the appellant's evidence he said at page 28 of the transcript that he was "verystraightforward, he didn't try to mislead the Court in any way ..." He noted that he used "two oddphrases" regarding the officer's efforts to catch up to him. The appellant said, "When the officer

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finally caught up to me" and "When the officer eventually caught up to me". From that the Justiceinferred that the appellant was "travelling at a high speed". I could not find those exact words in theappellant's testimony, but they express the gist of what he said; namely, that it took the officer alittle while to catch up to him and on the whole of the evidence I find that the Justice's inferencewas warranted.

9 Regarding "due care and attention", at page 28 and 29 of the transcript the Justice said:

Well, we have the defendant's evidence before the Court, we have the officer'sevidence before the Court, there's no disputing it. The defendant driven possiblyby the knowledge that it was late at night and not much was going on and alsothis light is a bit of a thorn under the saddle of everybody in the neighbourhood;indicated to the Court that he wasn't at all concerned about blowing the red light.He admits to the Court he did and this Court is having a difficult time with that,but at the very least I think I would have to come down on the side of withoutdue care and attention."

10 In making this finding the Justice did not make a finding regarding the appellant's evidencethat, yes, he ran the red light, but he did it in a very cautious manner, treating it like a four-way stop,and how that relates to "due care and attention". That was a crucial part of the appellant's defence,which was not properly analysed by the Justice.

11 In his conclusion in convicting the appellant, at page 30 of the transcript, he found that "thereis a serious lack of judgment applied and what we had is a vehicle driven without due care andattention and that vehicle, at speed travelled thorough the intersection. Therefore, I find the Crownhas proved its case." From this conclusion, one might reasonably infer that he disbelieved theappellant about stopping at the red light. But he did not then go on to consider whether, even if hedid not believe the appellant, his evidence left him in reasonable doubt. And, furthermore, he didnot refer to the third part of the D. W. test either.

12 The steps outlined by D.W. are a road map to protecting the integrity of the presumption ofinnocence, and although, as stated above, the test does not have to be parroted, a Justice must showin his or her reasons that the intent of the test was observed. I find that in this case, it was not andtherefore, the Justice erred in law in convicting the appellant.

13 The appeal is allowed and a new trial is ordered.

J.W. BOVARD J.

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