No Evidence

Olaiya v Durham Region Transit Commission

2017 ONSC 3938

Darlene Olaiya v. Durham Region Transit Commission

2017 ONSC 3938
Ontario Superior Court of Justice — Divisional Court | Kiteley, Wilton-Siegel, Broad JJ. | June 29, 2017

Background

On June 6, 2013, Darlene Olaiya was riding a Durham Region Transit bus when she fell after a special needs customer flipped up an accessible seat to accommodate their walker. Olaiya sued Durham Region Transit Commission for negligence. The key piece of evidence was Olaiya's claim that after she fell, the bus driver said "not again" — suggesting this had happened before. The driver denied making this comment.

At trial on May 16, 2016, Olaiya presented her case without expert evidence about what the standard of care should be for transit operators. After both Olaiya and the bus driver testified, Durham Transit brought a motion for non-suit. Trial judge Glass J. granted the motion, dismissing the case entirely. Olaiya appealed to the Divisional Court.

Issues

1. Did the plaintiff present enough evidence to establish a prima facie case of negligence?
2. Was expert evidence of standard of care required, or could the driver's alleged comment "not again" be sufficient?

The Standard of Care Problem

The Divisional Court applied the test from Kauffman v. Toronto Transit Commission, which requires proving negligence in one of two ways: either show that the defendant failed to do something "commonly done by other persons in like circumstances," or show the failure was "so obviously wanted that it would be folly in anyone to neglect to provide it." Olaiya's lawyer argued the second test applied — that the driver had special knowledge about the accessible seat situation and should have warned her.

The court rejected this argument. Even accepting that the driver said "not again" and giving it the most favorable interpretation for Olaiya, the court found this wasn't enough evidence. There was no context for the comment, no evidence about industry standards, and no proof that warning passengers was "so obviously necessary" that failing to do so would be negligent. The driver's alleged special knowledge didn't rise to the level of obvious negligence.

Key Takeaway

A suggestive comment alone won't prove negligence — you need evidence of what the defendant should have done.

In negligence cases, you must prove not just that something bad happened, but that the defendant failed to meet an established standard of care. Without expert evidence or proof of obvious negligence, even suspicious statements like "not again" won't be enough to get your case to a jury.

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R v Amankwaa

[1997] O.J. No. 6014

R. v. Amankwaa

[1997] O.J. No. 6014
Ontario Court of Justice (Provincial Division) — Justice of the Peace Quon | April 1, 1997

Background

Isaac Amankwaa was driving eastbound on Eglinton Avenue West in Etobicoke, approaching the intersection with Martingrove Road. He was in the right lane, which had signs indicating it was for right turns only (with an exception for buses). There were two signs: a green warning sign 100 metres before the intersection stating "Right Lane Must Exit," and a white arrow on black background 25-30 metres before the intersection with "Buses Excepted" underneath. The lane also had two arrows painted on the roadway surface.

Instead of turning right as the signs required, Amankwaa drove straight through the intersection. Police Constable Schulze, positioned on the south side of Eglinton east of Martingrove, observed this and charged Amankwaa under section 154(1)(c) of the Highway Traffic Act for failing to obey a lane sign. Amankwaa's defence argued that since the lane continued on the other side of the intersection (restricted to buses), he was entitled to proceed straight, and that the signs didn't specify times of operation as allegedly required by section 155.

Issues

1. Did the Crown prove beyond a reasonable doubt that the highway was divided into "clearly marked lanes" as required by section 154(1)(c)?
2. Was the defendant charged under the correct section of the Highway Traffic Act?

The "Clearly Marked Lanes" Requirement

The court focused on a critical distinction in the Highway Traffic Act: some sections refer to "marked lanes" while section 154(1)(c) specifically requires "clearly marked lanes." Justice of the Peace Quon found this difference was intentional and meaningful. The prosecution had to prove not just that there were lanes, but that they were clearly marked.

Drawing on cases from New Brunswick and Nova Scotia, where legislation explicitly requires "clearly visible" lines, the court determined that "clearly marked lanes" requires evidence about both the method used to divide the highway into lanes and the visibility of those demarcations to drivers. The officer's testimony that there were "4 lanes of traffic" with some marked for turns wasn't enough — there was no evidence about how the lanes were actually delineated or whether those demarcations were clearly visible.

The court noted that while the evidence was sufficient to survive the defence's motion for non-suit (meaning there was some evidence on each element), it wasn't sufficient to prove the case beyond a reasonable doubt at trial's end.

Key Takeaway

The prosecution must prove every word in the charge — "clearly marked" means more than just "marked."

If you're charged under section 154(1)(c), pay attention to whether the Crown actually proves the lanes were "clearly marked" with specific evidence about lane markings and their visibility, not just general testimony about the number of lanes.

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R v Arcuri

[2001] 2 SCR 828

R. v. Arcuri

[2001] 2 S.C.R. 828, 2001 SCC 54
Supreme Court of Canada — McLachlin C.J. and L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. | September 14, 2001

Background

Giacinto Arcuri was charged with first-degree murder in the death of his friend Enio Mora, who was found shot four times in the head and stuffed in the trunk of his Cadillac. The Crown's case was entirely circumstantial — DNA on a bloody shirt, footprint evidence, soil samples, and witness testimony about seeing a car similar to Arcuri's. But Arcuri fought back at the preliminary inquiry, calling two witnesses whose testimony suggested he didn't have the opportunity to commit the murder.

The preliminary inquiry judge committed Arcuri to trial for second-degree murder, but only after carefully reviewing all the evidence — both the Crown's circumstantial case and the defence's exculpatory witnesses. Arcuri argued this was wrong: he claimed the judge should have simply asked whether the Crown's evidence alone could support a conviction, without weighing it against defence evidence.

Issues

1. Must a preliminary inquiry judge consider exculpatory evidence called by the defence?
2. If so, how does the judge's task differ when dealing with circumstantial versus direct evidence?

The Weighing Test for Circumstantial Evidence

The Supreme Court clarified a crucial distinction that affects how preliminary inquiries work. When the Crown presents direct evidence on all elements of the offence, the accused goes to trial regardless of defence evidence — because the only question is whether witnesses are telling the truth, and that's for the jury to decide.

But when the Crown relies on circumstantial evidence, the preliminary inquiry judge must engage in "limited weighing" of all the evidence, including defence evidence. This is because circumstantial evidence requires inferences — there's a gap between the evidence and the conclusion. The judge must assess whether those inferences are reasonable, considering the whole picture.

The Court emphasized this weighing is "limited" — the judge doesn't assess credibility or draw factual inferences. Instead, the judge asks: "If the Crown's evidence is believed, would it be reasonable for a properly instructed jury to infer guilt?" Defence evidence matters because it can affect whether those inferences are reasonable.

Key Takeaway

At preliminary inquiries involving circumstantial evidence, defence witnesses can make the difference between committal and discharge.

This case confirms that preliminary inquiry judges must consider the whole evidentiary picture when the Crown's case relies on inferences. For self-represented defendants facing circumstantial cases, calling exculpatory witnesses at the preliminary inquiry isn't just allowed — it's potentially case-changing.

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R v Azubuike

[2002] OJ No 1807

R. v. Azubuike

[2002] O.J. No. 1807
Ontario Court of Justice, Provincial Offences Court — Justice of the Peace Quon | Heard January 25, 2002, Judgment May 6, 2002

Background

On August 3, 2001, Emily Dawidoitz was driving her blue 1991 Nissan eastbound on the Gardiner Expressway when a tractor-trailer truck made an unsafe lane change and collided with her vehicle, pushing it against the guardrail. The truck stopped about 500 metres ahead, and a black male in his mid-30s came out of the truck to check if everyone was okay and offered his cell phone to call police.

When Officer Sinclair arrived 17 minutes later, a gentleman approached him with a valid Ontario driver's licence identifying himself as Theophilus Azubuike. The officer charged Azubuike with unsafe lane change under section 142(1) of the Highway Traffic Act. But here's the problem: Dawidoitz never actually saw who was driving the truck before the collision — her car was too low compared to the transport truck.

Issues

1. Was there sufficient admissible evidence to identify the defendant as the driver of the truck?
2. Can circumstantial evidence alone establish driver identity for a directed verdict motion?

The Identity Evidence Challenge

The defence brought a motion for directed verdict, arguing there was no evidence identifying who was actually driving the truck at the time of the offence. This wasn't unreasonable — the prosecution witness admitted she never saw the driver before the crash, and the officer only arrived after the fact.

However, Justice Quon applied the test from R. v. Monteleone: on a directed verdict motion, the court must determine whether there is "any admissible evidence which could, if it were believed, result in a conviction." The court cannot weigh evidence quality or credibility at this stage.

The circumstantial evidence here included: (1) Dawidoitz testified the man who approached her came from the truck and was the only person in it; (2) both she and Officer Sinclair described a similar-looking black male; (3) this same person identified himself to the officer as the driver with valid documentation. Justice Quon found this indirect evidence was sufficient to establish identity — the truck didn't drive itself, and there was no evidence of anyone else being involved.

Key Takeaway

Circumstantial evidence can be just as powerful as direct evidence in establishing essential elements of an offence.

For self-represented defendants, this case shows that arguing "nobody saw me driving" isn't always a winning strategy if the Crown can present a logical chain of circumstantial evidence pointing to your identity as the driver.

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R v Murray [2011] ONCJ 493 copy

[2011] ONCJ 493

No summary has been written for this decision yet.

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R v Ziara

Unreported

R. v. M.A. Ziara

Provincial Offences Appeal Court, Province of Ontario
His Honour Judge G. E. Michel | November 24, 1987, Sudbury

Background

Majid A. Ziara was charged under s.109 of the Highway Traffic Act for speeding — doing 130 km/h in a 90 km/h zone. The case came down to a battle over radar evidence and whether the Crown had proven its case beyond a reasonable doubt.

At trial, the Crown called a police officer who testified about using radar to clock Ziara's speed. The defence argued that the Crown had failed to provide sufficient evidence that the radar unit was working properly, that Ziara didn't receive a fair trial, and that the learned Justice of the Peace's findings weren't based on evidence adduced by the Crown.

Issues

1. Did the Crown provide sufficient evidence that the radar unit was properly qualified and working accurately?
2. Was the evidence regarding radar testing adequate to prove the accused's speed beyond a reasonable doubt?

The Radar Evidence Problem

The court found major problems with the Crown's radar evidence. The officer testified that he was a qualified radar operator with two and a half years of experience, but when asked about the specific testing procedures, his testimony fell apart. He couldn't clearly state whether he had checked the radar unit before or after the offence, and gave contradictory evidence about the timing of his tests.

Most damaging was the officer's testimony about the radar unit's accuracy tests. He indicated that tests were conducted both before and after clocking vehicles, but then said the first time he checked the unit was "after" the offence occurred. The court found this evidence insufficient to establish that the radar was working properly when it allegedly detected Ziara's speed.

The court emphasized that unlike breathalyzer units, radar units don't have statutory recognition under the law. This means the Crown must qualify radar evidence through witness testimony, and that evidence must be credible and reliable. Here, the officer's contradictory and unclear testimony about testing procedures failed to meet that standard.

Key Takeaway

Radar evidence must be properly qualified through clear, consistent testimony about testing procedures — vague or contradictory evidence about when and how the unit was tested can sink the Crown's case.

Self-represented defendants facing radar-based charges should carefully cross-examine officers about their testing procedures, looking for gaps, contradictions, or uncertainty about when tests were performed and what the results showed.

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United States of America v Shephard

[1977] 2 SCR 1067

United States of America v. Shephard

[1977] 2 S.C.R. 1067
Supreme Court of Canada — Spence J. (dissenting), Ritchie J. (majority) | May 17-18, 1976

Background

Raymond George Shephard was wanted by the United States for drug conspiracy charges — importing and distributing narcotics in violation of U.S. federal laws. The Americans filed an extradition request based on a single piece of evidence: an affidavit from Albert E. Herrmann, a co-conspirator who had been arrested in Wisconsin.

Here's where it gets suspicious. Herrmann's affidavit laid out the entire conspiracy in thirty detailed paragraphs, but in the first paragraph, Herrmann revealed his motivation: he'd been promised that the U.S. Attorney's office would dismiss all but one of his narcotics charges if he testified. He was essentially trading Shephard's freedom for his own. The extradition judge, Hugessen A.C.J., looked at this "testimony" and refused to issue the warrant, calling the evidence "manifestly unreliable."

Issues

1. What standard of evidence sufficiency applies to extradition hearings?
2. Can an extradition judge refuse to commit based on concerns about witness credibility and reliability?

The Reliability Standard

The court was deeply divided. Justice Spence (dissenting) argued that extradition judges have broad discretion to assess not just whether evidence exists, but whether it's reliable enough to justify extradition. He pointed to established case law saying judges can intervene when Crown evidence is "manifestly unreliable" or "tainted in nature as to make it dangerous and unjust" to proceed.

The majority, led by Justice Ritchie, took a much narrower view. They said an extradition judge's job is simply to determine if there's any admissible evidence that could support a conviction — not to weigh credibility. Under sections 13 and 18 of the Extradition Act and section 475 of the Criminal Code, the test is whether the evidence would justify committal for trial in Canada, not whether it's believable.

The majority emphasized that credibility assessment is the jury's job, not the judge's. They distinguished this case from R. v. Comba, where a judge could withdraw a case from a jury due to unreliable evidence, arguing that extradition proceedings are different — the judge isn't protecting a jury, but determining legal sufficiency.

Key Takeaway

Even obviously tainted testimony from co-conspirators seeking lenient treatment can be sufficient for extradition if it technically meets legal admissibility standards.

This case shows the tension between legal sufficiency and common sense reliability in extradition law. While clearly problematic evidence might survive legal challenge, it highlights how prosecutorial deals with witnesses can create perverse incentives that undermine the integrity of the evidence itself.

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