Case Name:

R. v. Seles

BetweenHer Majesty the Queen, and

Rebecca Seles

[2008] O.J. No. 1807

Ontario Court of JusticeCayuga, Ontario

D.A. Harris J.

Oral judgment: March 12, 2008.

(4 paras.)

Charges:Act Careless Driving - section 130 Highway Traffic

Counsel:

S. MacKay, Ms.: Counsel for the Appellant.

M. Riddell, Esq.: Counsel for the Respondent.

REASONS FOR JUDGMENT

1 D.A. HARRIS J. (orally):-- This is a Crown appeal from the decision of the Justice of thePeace dismissing the charge of careless driving against Rebecca Seles upon an application for anon-suit brought at the end of the Crown's case.

2 The Justice of the Peace misapprehended the law. The test before the Justice was whether or

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not there was any evidence upon which a reasonable trier of fact properly instructed in the lawcould find Ms. Seles guilty. There was evidence before the Justice of the Peace indicating that amotor vehicle accident had occurred. There was evidence as to the circumstances of the accident,such that the situation would be similar to that found in the Ontario Court of Appeal decision in R.v. McIver, [1965] 2 O.R. 475. McIver makes it clear that in those circumstances, the Crown hasproven a prima facie case and that the circumstances would call for some explanation from theaccused person. The Justice of the Peace misstated the law in this particular regard.

3 There is, however, another complication in this particular case. Upon reviewing the transcript,it becomes clear that the police officer stated to the court that Ms. Seles was the driver of thevehicle. He provided no evidence to the court, however, as to how he made that determination. Hemade it clear in his evidence that at the time that he arrived at the scene, there was no one in themotor vehicle in question. Ms. Seles was in the neighbourhood. She was being treated byparamedics. She had injuries that could arguably have been consistent with her having been in themotor vehicle. There was no evidence, however, that actually placed her in the motor vehicle. Therewas no evidence in particular that placed her in the driver's seat of the motor vehicle. There was notsufficient evidence from which the Justice could have inferred that she must have been the driver ofthe motor vehicle.

4 In the result, the Justice was correct in having granted the non-suit. The error was that theargument that should have gone before the learned Justice was there was no evidence that Ms. Seleswas the driver of the motor vehicle. There was not. There certainly was not evidence beyond areasonable doubt that she was the driver of the motor vehicle. The appeal is dismissed.

qp/s/qlttm/qlprp/qlltl/qlsxs

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