R v Balachandran, 2023 ABCJ 145

In the Alberta Court of Justice Citation: R v Balachandran, 2023 ABCJ 145 Date: 20230623 Docket: 210305165P1 Registry: Calgary Between: His Majesty the King - and - Nirosha Balachandran Decision of the Honourable Justice P.J. Mason Introduction [ 1 ] The Accused, Ms. Balachandran was charged with two traffic safety offences as a result of motor vehicle collision with a motorcycle in Calgary, Alberta on September 20, 2020. Mr.

Bryce aged 23, the motorcycle driver, died at the scene. [ 2 ] The trial on the charges did not commence until November 23, 2022, in part, due to the impact of the COVID pandemic on the court system. The Court heard evidence from four witnesses from the prosecution that day. Unfortunately, the matter had to be adjourned prior to completion of the case for lack of time. Ultimately, after a few more adjournments due to unforeseen scheduling conflicts the matter returned to Court on May 4, 2023, when the Court heard from two witnesses for the defence, including the Accused.

At the conclusion of the defence evidence the Court heard argument from both counsel. The case was adjourned for the Court to consider the evidence and arguments and render a decision. Facts [ 3 ] According to the Agreed Statement of Facts (ASF), marked Exhibit 1 to the proceedings: 2. On September 29, 2020, at approximately 12:29 PM, a fatal injury collision occurred at the intersection of Barlow Trail and 26 th Street SE in Calgary, Alberta (the “Collision Scene”).

3. The Accused was driving a Subaru. Mr. Bryce was operating a Ducati Motorcycle. [ 4 ] The ASF went onto state: 4. At the time of the collision, the Ducati was travelling west on Barlow Trail approaching the intersection with 26 th Street SE, Calgary, Alberta. At the same time, the Subaru was turning east onto Barlow Trail from southbound 26 th Street SE, Calgary, Alberta. 7. The Defendant was the registered owner of the Subaru on September 29, 2020. The Registered Owner Certificate for the Subaru will be entered as an Exhibit. 14. As a result of the collision, Caleb Bryce sustained fatal injuries. 15.

Scene diagrams were created by Calgary Police Service of the Collision Scene…and their accuracy and reliability are admitted. 16. The weather was clear. The roadway consisted of dry asphalt with rolled in stone chips and was in good repair. The weather, lighting, and road conditions are not considered factors in the collision. 17. There were parked vehicles on the north curb of Barlow Trail to the east of the intersection with 26 th Street SE, Calgary, Alberta. There was an advertising sign on a grass area on the northeast corner of the intersection. 18.

A black Dodge Ram pickup, Alberta plate GFY133, was parked on the east side of the intersection along the north curb of Barlow Trail. 19. The presence of the sign, coupled with parked vehicles aligned along the north curb of Barlow Trail, provided a significant view obstruction for the Subaru driver when positioned at the stop line according to Sergeant Foster, the collision reconstructionist. 21. The Subaru … was subjected to a mechanical inspection and no mechanical fault was found that contributed to the collision. 24.

The Ducati … was subjected to a mechanical inspection and no mechanical fault was found that contributed to the collision. [ 5 ] The identity of the Accused, the jurisdiction where the collision occurred, and the manner of death of Mr. Bryce were not an issue before the Court. [ 6 ] Sergeant Bradley C Foster was qualified as an expert in the field of motor vehicle collision analysis and reconstruction. He testified at trial and produced an Expert Report and a Supplemental Expert Report marked as collective Exhibit 8 in the trial. [ 7 ] The Crown also called two civilians, Mr. DeChamplain and Ms.

Ore, both of whom witnessed the accident. The Defence called Ms. Balachandran. Mr. Shimenosky, another civilian who witnessed the accident, was made available by the Crown for the purpose of cross-examination as he had originally been considered a Crown witness but was not called in their case. Issues [ 8 ] There are two issues before the Court: Did the Accused unlawfully fail to proceed safely after stopping at an intersection contrary to

section 38 of the Rules of the Road Regulation under the Traffic Safety Act ? Did the Accused unlawfully drive in a careless manner contrary to section 115(2)(

b) of the Traffic Safety Act ? Law [ 9 ]

Section 38 of the Rules of the Road Regulation states: “When a person driving a vehicle is required to stop the vehicle pursuant to

section 36 or 37, that person

a) Shall not cause the vehicle to proceed until the condition of the traffic on the highway being entered on is such that the vehicle can enter onto the highway in safety, and

b) Shall yield the right of way to all vehicles and pedestrians approaching that person’s vehicle and that are on the highway being entered”. [ 10 ]

Section 115 of the Traffic Safety Act states: “ 115(1) For the purposes of this section, a driver of a vehicle is driving carelessly if that driver drives the vehicle (

a) Without due care and attention, or (

b) Without reasonable consideration per persons using the highway.

(2) A person shall not do any of the following:

(

b) drive a vehicle on a highway in a manner that constitutes driving carelessly;” [11] Counsel also asked the Court to consider

section 161 of the Traffic Safety Act which states: 161 “Where a person is charged with an offence under this Act or a bylaw, the court trying the case may dismiss the charge if the personsatisfies the court that the offence court not have been avoided by the exercise of reasonable care or precaution.” [12] The Court was provided with case law by both counsel. The case law has been reviewed and considered thoroughly in thepreparation of this decision. The Court has also considered some additional case law of its own volition.

The Court is grateful to Ms.Sabrina Chehade for her assistance in locating the additional cases. The cases considered include both criminal and civil litigation: R vSault Ste.

Marie (SCC), [1978] 2 SCR 1299; R v Mooney 2023 ABCA 144; R v Reynoso 2005 ABQB 24; R vChristensen 2009 ABPC 17; R v Grosvenor 2009 ABPC 352; R v Turgeon (SK KB), 1958 120 CCC 248(Saskatchewan District Court); Tourigny v Sweeney 1999 BCCA 180 [13] In R v St Sault Marie supra the Supreme Court set out some general principles involving criminal law and strict liability inregulatory offences at paragraphs 60-61: Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facieimports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care.

This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event. These offences may properly be called offences of strict liability. Public welfare offences would prima facie be not subject to the presumption of full mens rea.

An offence of this type would fall in thefirst category only if such words as “willfully,” “with intent,” “knowingly,” or “intentionally” are contained in the statutory provisioncreating the offence.

On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. [14] In R v Turgeon supra, at paragraph 14 the Court referred to a passage from an earlier case from Ontario R v Beauchamp(1953) (ON CA), 106 CCC 6: “The law does not require of any driver that he should exhibit ‘perfect nerve and presence of mind, enabling him to do the best thingpossible.’ Drivers of vehicles cannot be required to regulate their driving as if in constant fear that other drivers who are underobservation, and apparently acting reasonably, and properly, may possibly act at a critical moment in disregard of safety of themselvesand other users of the road.” But the law does insist upon a reasonable amount of skill in the handling of a vehicle which is a potential source of danger to other usersof the road…The question always is ‘What would an ordinary, prudent person have done in relation to the event complained of?” [15] In R v Shire [1999] SJ No. 209 that court cited Turgeon with approval: The defence of error of judgment was upheld in Turgeon…There was in the Turgeon case as in this one, very little time for the accusedto react to the sudden appearance [of the other vehicle] and quoted the judgement verbatim: “It was in my opinion, merely an error of judgment and not one for which the accused should be convicted of driving without due careand attention.” [16] In Tourigny v Sweeney supra is a civil litigation case that dealt with some general principles about motor vehicle collisions.

In that case, the British Columbia Court of Appeal cited with approval the well-known case of Walker v Brownlee: “While the decision of every motor vehicle collision case must depend on its particular facts, I am of (sic) opinion that when A, thedriver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right of way and acollision results, if he seeks to cast any portion of the blame on B, the driver having the right of way, A must establish that B becameaware, or by the exercise of reasonable care should have become aware of A’s disregard of the law, B had in fact a sufficient opportunityto avoid the accident of which a reasonably careful and skillful driver would have availed himself; and I don’t think that in suchcircumstance any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali.” [17] This Court would not necessarily endorse the Latin quotation meaning “the source of the origin of evil” per se, however theabove passage does capture the essence of how a strict liability offence should be analyzed. [18] Recently, the Alberta Court of Appeal has updated the law in this area in its decision of R v Mooney supra at para 25 et seq. “All regulatory offences are strict liability offences unless clearly indicated otherwise.

Careless driving is a strict liability offence. TheCrown must prove beyond a reasonable doubt the elements of the offence: that the accused was driving without due care and attention, orwithout reasonable consideration for persons using the highway.

This burden is met by proof of the actus reus”. [19] The Court went on to reference the SCC’s description of the defence of all reasonable care available to an accused facing astrict liability in Sault Ste Marie set out above. [20] They then went on to say the law found Beauchamp, Turgeon, Grosvenor, Shire line of cases where they purported torequire mens rea, “an additional fault element”, or “a breach of duty to the public …deserving of punishment” had been “overtaken inevolution of the law”. [21] The Court noted the legal error made by the

summary conviction appeal judge: … by relying on Beauchamp to find conduct that was a breach of duty to the public deserving of punishment was a necessary element of

the offence and by failing to recognize that inadvertent negligence (breach of a standard of care) may be sufficient to establish theoffence of driving “without due care and attention”. [22] They then concluded at paragraphs 33-34: “The traffic commissioner then focused on whether the defence had been established, without first explaining how a lack of due care andattention was established beyond the fact of the accident. In

summary, the commission of the prohibited act, driving without due care and attention or without reasonable consideration for otherpersons using the highway, proof of the actus reus beyond a reasonable doubt, is sufficient. The onus then shifts to the accused toestablish due diligence, reasonable care, or precaution on the balance of probabilities.

The Crown need not prove something more thaninadvertent negligence, nor prove criminality, before this onus shift.” [23] That declaration is more in line with the thinking laid out by Foisey J, in Osborne v Peeling 1981 30 AR 500 paragraph 15: “There is a heavy onus on the defendant … not to leave the stop sign and not to proceed until such movement could be done in safety”. [24] The same could also be found in a much older case from the British Columbia Court of Appeal Pipe v Holliday (BC CA), [1930] 2 DLR 73 at paragraph 29: “One cannot by stopping at an intersection marked by a “stop” sign abandon all care upon resuming the journey.

Care must be exercisedat all stages and this accident was caused by what took place after that point was reached.” Analysis [25] While this is a tragic case, involving the death of a young man, Ms. Balachandran is entitled to the presumption of innocence. Further, the Crown is required to prove their case beyond a reasonable doubt. That is a very high standard of proof much closer toabsolute certainty than to the balance of probabilities. [26] It would be helpful to review the evidence presented at Court.

The ASF described, briefly, where the accident occurred. [27] A review of the Expert Report from Sergeant Foster provided greater detail. 1. The intersection of what was described as Barlow Trail and 26th Street Southeast was essentially a relatively ordinary T-intersection with 26th Street’s access to Barlow Trail controlled by a stop sign. 2. Barlow Trail was aligned on an east-west axis, while 26th Street was aligned on a north-south axis. It was an area of mixed useincluding residential, commercial, and retail buildings. 3. The accident occurred during the day and the asphalt roads were dry.

The weather and road conditions were not considered to befactors in the collision. 4. On the date of the collision, the unposted speed limit for Barlow Trail was 50 km/h. 5. There were cars parked on the north side of Barlow Trail to the east of the intersection. The cars constituted an obstruction of view of vehicles travelling westbound on Barlow Trail for anyone attempting to enter the intersection from 26th Street onto Barlow Trail. Thiswas considered to be a factor in the collision. (Page 10) 6. A small green space on the northeast corner of the intersection where a large advertising sign was located.

The sign constituted anadditional obstruction of view of vehicles travelling westbound on Barlow Trail for anyone attempting to enter the intersection from 26thStreet onto Barlow Trail. This was considered to be a factor in the collision. (Page 10) [28] Further the Expert Report identified some further aspects of the collision to be considered: 1. Based on the evidence at the scene, the motorcycle was travelling at a minimum speed of 82 km/h at the time the brakes were firstapplied on the motorcycle. That minimum speed did not take into account the speed loss due to the impact with the Subaru. (Page 12) 2.

Based on the physical evidence at the scene, the motorcycle was travelling at minimum of 53km/h at impact with the Subaru. Again, the minimum speed did not factor in the speed loss due to the impact with the car. (Page 12) 3. Using other calculations, the speed of the motorcycle was estimated at anywhere between 91 and 195km/h (but likely on the lowerend of the range) prior to the application of the brakes on the motorcycle. (Page 12) 4. The motorcyclist applied his brakes sufficiently to lock both the front and rear tires. The locked tires resulted in an overall slidingtire mark of approximately 15.50m.

The motorcycle fell to the ground and slid on its side for approximately 9.70m, overlapping with thesliding tire mark, before contact with the rear left wheel of the Subaru. The rider slid, supine and feet first, into contact with theunderside of the rear diver side door of the Subaru where he became lodged. (Page 6) 5. The speed of the Subaru was not considered to be a factor in the collision. The speed of the motorcycle was considered to be afactor in the collision. (Page 12) 6. A

summary of the expert opinion was found at page 13 of the report.

[ 29 ] The Supplemental Report expanded on the issue of time and distance it would have taken for the motorcycle to travel to various points on the road from leaving 17 th Ave SE and entering Barlow Trail, crossing 27 th Street SE, and the application of brakes to the point where the skid marks first appeared just before 26 th Street SE. [ 30 ] Based on the measurements taken at the scene, and the overall distances covered, Sergeant Foster was unable to determine the exact speeds and whether or not the motorcycle was accelerating from a slower speed or braking from a higher speed.

For the calculations of time and distance he provided, the expert assumed that the motorcycle was maintaining a constant speed of 82km/h up to the point where the tire marks were observed. (Page 5-6) This was, at best, an artificial construct but this was the best the expert could do. [ 31 ] Mr. DeChamplain was a civilian witness who observed the accident take place. He was seated in a car in a parking lot in close proximity just to the west of the intersection.

He initially testified that the Subaru turned in front of the eastbound motorcycle before correcting his information and stating the motorcycle was headed westbound. Mr. DeChamplain believed the speed of the motorcycle was approximately 40km/h. He also believed the Subaru stopped at the stop sign, then it nudged out into the intersection before proceeding forward. He said the driver of the car “just went for it.” He believed he saw the motorcycle before he saw the Subaru. His attention was drawn to the motorcycle because he could hear it approaching and he believed that it was starting to accelerate. [ 32 ] Ms.

Ore was a passenger in a motor vehicle. She was traveling westbound on 17 th Ave towards the Barlow Trail turn off. A motorcycle passed her vehicle, then tilted a little bit, lost control and ran into a gray car at the back of that vehicle. She believed her vehicle was traveling at or near the speed limit. The motorcycle passed them at higher speed and was accelerating. The only time she saw the gray car that the motorcycle hit was when the car went to make a left turn in front of the motorcycle.

She described the motorcycle going “way faster as he passed us.” She also remembered the parked cars on the road. [ 33 ] Sergeant Foster also testified in Court. He reviewed the findings in his reports and the photographs taken at the scene of the collision. [ 34 ] An additional piece of evidence from Sergeant Foster was of interest to the Court. He testified that he believed that a short tire scrub mark on the road found relatively near to the Subaru was caused by the impact of the motorcycle colliding with the rear wheel of the Subaru.

He stated that that mark, based on the size of the vehicle and the dynamics of the collision as he determined them, was his best estimate of the point of impact between the motorcycle and the Subaru. That mark was found on Exhibit 9, the enlarged scene diagram shown to the Court. [ 35 ] The scrub mark itself appeared in line with eastern edge of the intersection and was on the northern half

section of the road surface. The final resting point of the Subaru was significantly further to the east of the point of impact as perceived by Sergeant Foster. However, Sergeant Foster was unable to determine the path of the Subaru from the starting point of the stop sign at the entry to the intersection to the estimated point of impact. However, given the location of the mark and the dynamics of the accident as set out by Sergeant Foster, there was a suggestion that Ms. Balachandran “cut the corner.” [ 36 ] Mr.

Shimenosky was a third civilian who witnessed the accident from an area near the northwest corner of the intersection of 26 th Street and Barlow Trail. He said he was standing on an elevated sidewalk overlooking the intersection. He happened to look eastwards back up the street towards the top of the hill where Barlow Trail branched off 17 th Avenue SE. He could hear a motorcycle coming down the street. He noticed a number of vehicles parked up the street including a black truck located close to the intersection that was blocking the view for traffic coming off of 26 th Street onto Barlow Trail.

He was wrong about the exact placement of the black truck, but his testimony did match what Sergeant Foster concluded about the general placement of the parked vehicles, and the black truck causing an obstruction. [ 37 ] Mr. Shimenosky also noticed the Subaru stopped on 26 th Street at the intersection. He saw Ms. Balachandran looking both left and right before he saw her start creeping slowly forward into the intersection. He also indicated that she was trying to crane her neck to see over the hood of the black truck.

He testified that when she got out into the intersection, the motorcyclist was right into her car. “It was a millisecond, and it was over.” He believed she was taking a straight path out into the road when she began the turn and in a continuous move she proceeded out into the roadway before the collision occurred. [ 38 ] Mr. Shimenosky also noted that the motorcyclist was traveling at high rate of speed just before the collision. [ 39 ] Ms. Balachandran testified as well. It was a lunch time drive, and there were no alcohol or drugs consumed.

She said that she could not really see because of the sign and the vehicles parked along the road. She waited at the stop sign for a while and could not hear any approaching traffic. She then proceeded to move into the intersection very slowly. She believed she made a normal left turn. As she was turning her car was hit by something. She did not know what had hit her and did not see a vehicle. The next thing she heard was a lady screaming and she saw someone pointing at the ground and it was only then that she saw the motorcyclist.

Shortly thereafter, the police and the emergency crews arrived. [ 40 ] Under cross examination, Ms. Balachandran conceded that after she started out into the intersection she did not stop. She was pulling out slowly to try and see past the parked vehicles but, ultimately, made the decision to proceed because she did not hear or see any vehicles coming at that moment.

She said she assumed it was safe to proceed without seeing all the way up the road. [ 41 ] On the careless driving charge, from the evidence before the Court, the Crown has pointed to the collision as proof of the actus reus for entering the intersection in an unsafe or careless manner.

From Mooney it was clear that the accident itself was one factor, but the Court must also be satisfied that “a lack of due care and attention was established beyond the fact of the accident.” In dealing with this point the Court must recognize that “inadvertent negligence may be sufficient to establish the offence…” [ 42 ] From the evidence of Mr. Dechamplain, Mr. Shimonesky and Ms. Balachandran herself, the Court was satisfied that Ms.

Balachandran stopped at the stop sign, then proceeded slowly into the intersection, nudging forward, before proceeding to initiate her turn. [ 43 ] From the evidence of Mr. Shimonesky, Ms. Balachandran and Sergeant Foster, the Court was satisfied that Ms. Balachandran’s view was obstructed by the advertising sign, the Black truck and other parked vehicles to such an extent that she was required to move part way into the intersection to establish a line of sight to the east on Barlow Trail back up the hill towards the split of that road off from 17 Avenue SE. [ 44 ] From the evidence of Mr. Shimonesky and Ms.

Balachandran, the Court was also satisfied that she attempted to move her vehicle, crane her head and neck, to take steps to reduce the view obstruction before she pulled out into the intersection fully. [ 45 ] From the evidence of Mr. Shimonesky, Ms. Ore, and Sergeant Foster, the Court was satisfied that Mr. Bryce was travelling well in excess of the unposted speed limit of 50km/h on that

section of Barlow Trail. Mr. DeChamplain thought Mr. Bryce was travelling the speed limit but his vantage point may have precluded him from seeing the speed of the motorcycle until was on its side just before it struck the Subaru. Sergeant Foster calculated this speed to be a minimum of 53km/h which was not far off the speed limit. That worked out to approximately 14.7m/s. [ 46 ] The Court noted that Sergeant Foster calculated that minimum speed without factoring in the speed loss due to the impact with the car.

The only conclusion the Court can come to was that it was very likely that the speed was higher than 53km/h at the moment of impact but there was no firm evidence on how much higher that could be. [ 47 ] From the evidence of Sergeant Foster the Court was satisfied that Mr. Bryce was traveling at a minimum of 82 km/h at the time he first applied the brakes.

The expert calculated that speed to be approximately 22.8m/s. [ 48 ] Based on the gear ratios of the motorcycle, there was a range of potential speeds of the motorcycle from 91-195km/h. 91km/h would equate to 25.2m/s. [ 49 ] It was important to note that Sergeant Foster believed the motorcycle to be traveling at the lower end of that range based on the evidence at the scene. The highest speeds in that range would have resulted in more catastrophic damage from the collision. [ 50 ] All of the speed calculations were based on constant speeds prior to braking.

Sergeant Foster conceded that there were a range of potential alternative scenarios which could be considered including the motorcycle traveling at slower speed but accelerating up to the point where the brakes were applied. [ 51 ] A reasonable person, acting with due care and attention, when faced with the situation that existed before Ms. Balachandran committed to the turn, would have stopped at the stop sign, noticed the obstruction of view presented by the advertising sign and parked cars and would then begin to progress forward to see if they could eliminate the obstructed view.

That would require the front end of a vehicle to encroach beyond the edge of the obstruction by some distance to allow the driver to obtain a clear line of sight up the roadway. [ 52 ] Any person seeking to enter the intersection would be required to assess the safety of their actions based on the other users of the road acting in a rational manner. That assessment would also have to factor in scenarios where other users were transgressing the rules of the road in a minor way.

Such an assessment, given the particular layout of the roadway in question, would have to include another user of the roadway travelling more than 50km/h. I do not think such a reasonable person would be required to anticipate gross breaches of the rules of the road, but it would be difficult to say how far that assessment would have to go in considering speeds of other users. Clearly, no one would have to anticipate a speed of 195km/h. That would be absurd.

On the other end of the scale, it would not be unreasonable to expect someone traveling at 53km/h on that road. [ 53 ] In his Supplemental Report, Sergeant Foster, using the 82 km/h speed determined that the motorcycle would have traveled the 129m from the last intersection (Point

B) to the point where the skid marks appear (Point C), indicating the brakes have locked the wheels of the motorcycle, in 5.7 seconds. Given Ms. Balachandran’s slower movement out into the intersection before being committed to the turn, this would have left her with even less time to make a decision as she achieved a better sight line up the roadway.

The collision might not have occurred if she stopped again in the sequence of events with front end of her car protruding into the intersection; but it also would not likely have occurred if the motorcycle was travelling at a slower speed than the minimum 82km/h estimated by Sergeant Foster, let alone a higher speed.

I do not think a reasonably prudent driver would have to consider another user travelling at that rate of speed over the legal limit in a semi-residential area. [ 54 ] This Court was not satisfied that a “lack of due care and attention was established beyond the fact of the accident” nor was I satisfied that there was any inadvertent negligence in how Ms. Balachandra approached the intersection and initiated the turn. In my view, it was an awful confluence of events that led to a tragic outcome. [ 55 ] The other charge before the Court was failing to proceed safely after stopping at an intersection.

Many of the same reasons that apply to the careless charge above apply to this charge. However, the evidence, as presented, raised a discrete issue on how Ms. Balachandran made her turn. The Court was already determined that her approach to the intersection, her initial stop, her movement into the intersection to improve her sight line, or her decision to turn, were appropriate based on what a reasonable driver would apprehend at that time.

Rather, the focus of my concern on this charge was the potential path of travel she took in making the turn. [ 56 ] This issue arose from Sergeant Foster’s estimation of the point of impact as evidenced by the scuff tire mark on the roadway where he believed the motorcycle struck the rear tire on the Subaru. The mark was found on the diagrams he produced to the Court but were not recorded as a true and accurate representation of their appearance and size on the roadway.

When pressed on his opinion about the point of impact, Sergeant Foster said that this was the best estimate he had for where the point of impact was for the bike with car. [ 57 ] In looking at the placement of the scuff mark in relation to the intersection, it was noted that the mark was in the northern half of the intersection and at the far eastern side of that intersection. It seemed that there was a potential “cutting of the corner” by Ms.

Balachandran. However, as Sergeant Foster noted, there was no way to determine the precise route that she took to get her car in a position where it would leave the impact mark on the roadway. Further, it would not be possible to determine what angle her car was at in relation to the motorbike at the moment of impact. [ 58 ] Additionally, the evidence of Mr. Shimonesky and Ms.

Balachandran supported the contention that she proceeded straight out into the intersection before making her turn. [ 59 ] In the absence of any definitive evidence to establish that she had in fact “cut the corner” the Court cannot conclude beyond a reasonable doubt that she had done so, and that removed the final aspect under which she could be convicted of this charge. Conclusion The Crown has not met the evidentiary burden to merit a conviction on either charge. The charges are dismissed. Delivered Orally on the 22 st day of June, 2023. Dated at the City of Calgary, Alberta this 23 rd day of June, 2023. P.J.

Mason A Justice of the Alberta Court of Justice Appearances: Fiorella Avolio for the Crown Alain Hepner K.C. for the Accused