This case involves R. v. Fuller, where Jermaine Fuller was charged with failing to wear a complete seat belt assembly under section 106(1) of the Highway Traffic Act. A police officer testified that he observed Fuller without his shoulder strap fastened when stopped at an intersection late at night. However, Fuller and his girlfriend testified that he was wearing his seat belt and only removed it after being pulled over to retrieve documents from the glove compartment. While the judge preferred the officer's evidence, considering the dark and tinted conditions, consistent defense testimony, and reasonable doubt standard, the charge was dismissed due to reasonable doubt about whether the offense was proven beyond a reasonable doubt.

1. Case Name:
R. v. Fuller
Between
Her Majesty the Queen, and
Jermaine Fuller
[2008] O.J. No. 5895
Ontario Court of Justice
Brampton, Ontario
V.A. Chang Alloy J.P.
Oral judgment: July 23, 2008.
(16 paras.)
Charges: 106(1) Highway Traffic Act - Driver Fail to Wear Complete Seat Belt Assembly
Counsel:
S. Bauman, Municipal Prosecutor.
M. Riddell, Agent for the Defendant.
REASONS FOR JUDGMENT
1 V.A. CHANG ALLOY J.P. (orally):-- Okay, the defendant, Jermaine Fuller is charged with
not wearing the complete seat belt assembly contrary to section 106 (1) of the Highway Traffic Act.
2 Police Constable Jason Kinna testified that on June 17, 2007 at approximately 2:12 a.m., he
was on general patrol on Hurontario Street when he pulled up beside a stopped car at a stale red
light. The officer testified that when he looked over into the defendant's motor vehicle he didn't see
a shoulder strap or seat belt on the driver of the vehicle. When the light turned green he pulled
behind the vehicle, activated his emergency equipment and commenced a traffic stop.
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2. 3 When the officer approached the driver of the vehicle the front driver side window had now
been rolled down and the officer noted that the driver's seatbelt was in fact off. The defendant
identified himself with a valid Ontario driver's licence and the officer was satisfied with his licence
identification. The officer subsequently charged the defendant for the offence that is now before the
Court.
4 When the P.C. Kinna was cross-examined we learned that the intersection was lit with artificial
lighting, that it was quite dark outside and the defendant had dark window tint on all of his side
windows and the back window of his vehicle. The officer agreed that he could not see the defendant
through the front windshield when he stopped beside him at the intersection and he observed the
defendant through the front driver side window. The officer agreed that the side and back windows
were tinted and when he made his initial observations inside the defendant's vehicle the windows
were illuminated with dim artificial lighting from overhead lights at the intersection.
5 The defendant testified that he was travelling on Hurontario Street and was stopped at a red
light when he noticed a police car pull up beside him. Once the light turned green he was very
surprised to see the officer activate his lights and pull him over. The defendant says he had done
nothing wrong and the light was green when he pulled away and he was in fact wearing his seatbelt.
The defendant figured that the officer was pulling him over to check to see if he had anything to
drink or was drunk.
6 The defendant also says that when he was pulled over and stopped roadside he had to take off
his seatbelt in order to reach into the glove compartment to get his insurance card and vehicle
ownership he anticipated the officer would want to see. Once he saw the officer approaching his
vehicle through the side view mirror he rolled down his window.
7 The defendant described his vehicle as having very dark tint but he believed it was still legal.
He says that at night if a person were to be standing outside the vehicle it would be nearly
impossible to see if he was wearing a seatbelt because all someone would see from the exterior of
the vehicle is a shadow or silhouette of the person sitting inside the vehicle.
8 The defence also called Ms. Alicia Downey who was the front passenger in the defendant's
vehicle on the night in question. We learned that Ms. Downey is in fact the defendant's girlfriend
and had been drinking earlier that night but she says she was sober and was not drunk.
9 Ms. Downey says that the defendant was wearing his seatbelt at the intersection where the
officer first observed the defendant and that he only took it off roadside once the officer had pulled
them over so he would be able to reach his documentation in the front glove box which was on the
passenger side of the vehicle.
10 Mr. Riddell on behalf of the defendant pertinently reminded this Court of the Supreme Court
of Canada's decision in R. v. W.(D.) for analysing cases like this that come down to credibility. No
doubt this is a he says, she says type of case. The analysis which I must apply to this case is first, if
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3. I believe the defendant, I must acquit him. Secondly, even if I don't believe him, but I am left with a
reasonable by his evidence, I must acquit him. Thirdly, even if I don't believe the accused, and I am
not left with a reasonable doubt based on his evidence, I must ask myself if I am convinced on the
whole of the evidence adduced at trial if the prosecution has proven its case beyond a reasonable
doubt.
11 I certainly accept the officer's evidence and I believe his evidence was creditable and that what
he saw appeared to be that the defendant was not wearing the shoulder strap portion of his seatbelt.
The officer's evidence as the prosecutor submitted was in fact clear and concise. In hearing both
P.C. Kinna and the defendant testify and having occasion to observe both of their demeanours while
testifying, I actually prefer the evidence of the officer over that of the defendant. However, this
would be deciding this case on a balance of probabilities, not on the requisite legal standard of proof
beyond a reasonable doubt.
12 Mr. Riddell, during the course of his oral submissions, repeatedly reminded this Court that the
legal standard that must be applied to these types of cases is not merely if I prefer the evidence of
the officer, but if I am left with a reasonable doubt by the defence evidence. Mr. Riddell further
submits that reasonable doubt falls much closer to absolute certainty than to proof on a balance of
probabilities. I agree with this submission and apparently so do Justice Iacobucci in the Supreme
Court of Canada's decision of Regina v. Starr.
13 Mr. Riddell has also directed my attention to a decision of the Court of Appeal for Ontario, R.
v. Hull. In that case, it was ironically a Crown appeal that was successful. However, The Court of
Appeal stated:
"W.(D.) and other authorities prohibit triers of fact from treating the standard of
proof as a credibility contest. Put another way, they prohibit a trier of fact from
concluding that the standard of proof has been met simply because the trier of
fact prefers the evidence of Crown witnesses to that of defence witnesses."
14 As I have said, I prefer the evidence of the officer and have some doubts about the defendant's
testimony. However, I do accept what the defendant said about it being very dark outside and his
vehicle having dark tinted windows as these facts were consistent with the officer's testimony. I of
course also have to turn my mind to the other defence witness that was in the car with the defendant
at the time of the alleged offence that collaborated his evidence.
15 I hear what the prosecution is saying about this witness being the girlfriend and perhaps being
biased and not an independent witness but I cannot reject her evidence solely based on this fact.
Both she and the defendant gave consistent evidence that the defendant took off his seatbelt after he
was pulled over and stopped roadside by the officer to reach for his documents in the glove
compartment.
16 In my view, given the time of night, given the fact it was dark outside with artificial lighting,
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4. the dark tinted windows on the defendant's vehicle and the evidence to the contrary from both the
defendant's passenger and the defendant himself, I cannot say that I am satisfied that the offence has
been proven beyond a reasonable doubt. It is for these reasons that the charge is dismissed.
qp/s/qlcct/qljxr
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