



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Veseli, 2015 ONCA 795

DATE: 20151120

DOCKET: C60376

MacPherson, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hamit Veseli

Appellant

Mark Wiffen, for the appellant

Chris Bendick, for the respondent

Heard and released orally: November 19, 2015

On appeal from the decision by Justice D. Terry Vyse of
    the Ontario Court of Justice dated November 10, 2014, dismissing the appeal
    from the conviction entered on June 9, 2014 by Justice of the Peace
Dan La Caprara of the Ontario Court of Justice
.

ENDORSEMENT

[1]

This is an appeal, with leave, of the conviction of the appellant, Hamit
    Veseli, for careless driving under s. 130 of the
Highway Traffic Act
.

[2]

The appellant was convicted,
in absentia
, on June 9, 2014 by
    Justice of the Peace La Caprara of the Ontario Court of Justice. He was fined
    $490 and received six demerit points, which is a serious concern since he is a
    taxi driver.

[3]

The appellant appealed to the Ontario Court of Justice. He explained
    that he had missed the trial because he had lost the trial notice. The Crown
    did not challenge this assertion. However, Crown counsel argued that because
    the accident that gave rise to the charge was a rear-end collision, with the
    appellant being the driver of the following car, there was no defence available
    to the appellant. Crown counsel said:

With respect to a possible defence to the charge, there is
    significant number of jurisprudence with respect to a rear end collision and
    careless driving.

[4]

The appeal judge agreed with the Crown. She said:

No. Oh dear, all right. Well, that doesnt leave us anywhere
    positive, Mr. Veseli. I havent heard a defence to the charge to cause me to
    grant your appeal.



I am going to have to dismiss your appeal, Mr. Veseli. Im
    sorry. Appeal is dismissed.

[5]

The appellant applied for leave to appeal to this court. LaForme J.A.
    granted the application in an endorsement dated April 15, 2015. He framed the
    issue, at para. 11: The question of law, therefore, is whether the appeal
    judge, on the record before her, was correct in finding that Mr. Veseli had no
    defence to the charge.

[6]

The legal framework for answering this question was set out succinctly
    and accurately in LaForme J.A.s endorsement, at para. 10:

Careless driving is a strict liability offence where Crown
    counsel at trial was required to prove that Mr. Veseli drove without due care
    and attention. However, if Mr. Veseli could show, on the balance of
    probabilities, that what was done was without negligence or fault on his part
    he would avoid conviction. That is, if he were able to show that a reasonable
    mistake was made, there would be no conviction: see
R. v. Kinch
, 2004
    CanLII 11464 (ONSC), at para. 57, citing
R. v. McIver
, [1965] 2 O.R.
    475 (Ont. C.A.).

[7]

In our view, there was evidence at the appeal hearing that raises the
    possibility of a defence to the charge of careless driving. Mr. Veseli said:

I saw the car in front of me. So  and the car pulled over. It
    gives you not to pull over in the right because the bridge was up. The boat
    going through. It gives you not to pull over. So he pull over, he change his
    mind, he come back in the line and I hit in the back.

[8]

Later, the appeal judge asked Mr. Veseli a question about the long line
    of cars waiting for the bridge and he replied:

Yes, to the bridge because the boat going through and usually
    take long, you think to go a different route to take, different street. He
    changed his mind and comes back fast to the line and I hit him in the back.

[9]

In our view, these statements, if converted into testimony at a trial
    and believed by the trial judge, could provide a defence to the charge. We also
    note that the appellant did not have a trial on the merits of the charge, the
    Crown does not challenge his explanation for missing the original trial date,
    the appellants first language is not English, and six demerit points for a
    taxi driver is a serious concern. In these circumstances, we think that the
    appellant deserves a trial.

[10]

The
    appeal is allowed, the conviction for careless driving is set aside, the money
    paid on the fine should be returned to the appellant, and a new trial is
    ordered.

J.C. MacPherson J.A.

M. Tulloch J.A.

G. Pardu J.A.


