R. v. Lam, 2014 ONCJ 733

Citation: R. v. Lam , 2014 ONCJ 733 Ontario Court of Justice Toronto, Ontario HER MAJESTY THE QUEEN v NGOC LAM J. Defalco for the Prosecution G. Faulkner Agent for the Defendant Before: J. Opalinski J.P. Heard: May 9, 2013 September 9, 2013 November 28, 2014 Delivered: December 17, 2014 INTRODUCTION: 1 . The defendant, Ngoc Lam, (hereinafter referred to as the defendant) is charged on the 9 th day of August, 2012 at 7:49 pm., on Grandravine Avenue and Sentinel Road, in the City of Toronto, with the offence of careless driving, contrary to

section 130 of the Highway Traffic Act, R.S.O. 1990 c. H.8 and with the offence of fail to surrender permit for motor vehicle, contrary to section 7(5)(

a) of the Highway Traffic Act supra. 2 . The defendant by way of her agent Mr. G. Faulkner entered a plea of not guilty to both counts on May 9, 2013. The court heard evidence from two civilian witnesses, Toronto Police Officer Weeks, the Defendant and her husband. CHARGES: 3 .

Section 130 of the Highway Traffic Act , supra, provides that: Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and upon conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years. 4 . Section 7(5) (

a) of the Highway Traffic Act , supra, provides that: Subject to subsection (6), every driver of a motor vehicle on a highway shall carry the permit for it or a true copy thereof;

ISSUE: 5. The issue before the court is: whether or not the defendant’s conduct and manner of driving was of such a nature that constitutescareless driving; and did she fail to surrender her permit for the motor vehicle when asked by the police officer? ARGUMENT FOR THE PROSECUTION: 6. The prosecution submits that the prosecution’s evidence make out the elements of the offence that are required to render aconviction of the defendant, beyond a reasonable doubt.

The prosecution contends that the evidence presented by the defence is notbelievable and contradictory especially with regard to the direction in which the victim’s car was travelling. Furthermore, not only is itnot believable but it is implausible given the ultimate resting place of both vehicles which had not been moved when the officer arrivedat the scene of the accident. The prosecution further contends that it is not merely an issue of a credibility contest between defence andprosecution witnesses and when the court applies the principles set out in R. v.

WD (SCC), [1994] 3 S.C.R. 521 the courtshould find that the key elements of the offence have been made out beyond a reasonable doubt. ARGUMENT OF DEFENCE AGENT: 7. The agent for the defendant has made an argument that a reasonable doubt has been created in that the defendant came to a completestop at the intersection, counted to 5, looked around the intersection to ensure that it was safe to proceed and only when it was safe to doso she entered the intersection.

In any event even if the court does not accept the evidence of the defendant the defendant’s agentcontends that her conduct of driving can amount to nothing more than an error in judgment or momentary inattention and does notsupport a conviction for careless driving. EVIDENCE FOR THE PROSECUTION: 8. The court heard evidence from Renee Gibson, Tanya Marie Laing and Toronto Police Officer Weeks. 9. The evidence of Rene Gibson may be summarized as follows: (

a) On August 9, 2012 Ms. Gibson was travelling eastbound on Grandravine Avenue to work. The intersection of GrandravineAvenue and Sentinal Road is a 4 way intersection governed by stop signs. She came to a full stop for 3 seconds. She did see an SUV travelling northbound on Sentinal Road and assumed that she would stop as all other cars had stopped. (

b) As Ms. Gibson had the right, she proceeded through the intersection and was almost all the way through the intersection when shesaw the grill of the SUV and immediately after that was hit on her front passenger door. (

c) The impact spun her car so she was facing southbound in the direction of southbound on Sentinal Road. Her vehicle was writtenoff. (

d) She does not recall if the defendant had stopped but she does remember that the defendant was travelling at a high rate of speed andthere was damage to the defendant’s front fender. Not more than 2 seconds had transpired from the time that she had entered theintersection and was hit by the defendant. 10. The evidence of Tanya Marie Laing may be summarized as follows: (

a) On August 9, 2012 she was on her way to work travelling northbound on Sentinal Road behind the beige SUV driven by thedefendant. Sentinal Road and Grandravine Avenue is a 4 way stop and each of the 4 vehicles had stopped for the stop sign, includingthe defendant. She estimates that she was stopped for 2-3 seconds at the intersection before the accident occurred. (

b) Ms. Gibson was on her left side travelling eastbound on Grandravine Avenue having arrived at the intersection first. She proceededinto the intersection when the defendant ‘gunned’ it through the intersection. She could hear through her open window the defendantexcellerate at a fast rate of speed into the intersection. (

c) The defendant t-boned Ms. Gibson’s blue vehicle as it was going through the intersection at a high speed, the impact causing thevehicle to completely turn around.

(

d) The damage to this vehicle was to the passenger’s side and both the firecrew, police and EMS arrived quickly. 11 . The evidence of Officer Weeks may be summarized as follows: (

a) On August 9th, 2012 at approximately 7:50 p.m., Officer Weeks was dispatched to the intersection of Sentinal Road and Grandravine Avenue to investigate an accident. (

b) The speed limit for both streets is 40 kilometers and there is 1 lane running eastbound and 1 lane running westbound for Grandravine Avenue and 1 lane running northbound and 1 lane running southbound for Sentinal Road. The intersection is controlled by stop signs and stop lines that are respectively clearly posted and marked. The stop lines for Grandravine Avenue are set back from the intersection more than those for Sentinal Road making the intersection appear to look rectangular rather than square. (

c) Upon arriving the officer found that the vehicles had not been moved and were in the northeast quadrant of the intersection, with black scuff tire marks on the road leading to the blue Nissan Versa. The tire scuff marks appear to look like the Versa had been pushed laterally northbound and a little eastbound, so that the driver’s side rested in the northeast corner of the intersection facing southeast. (

d) The Blue Nissan Versa had been travelling from west to east, while the Defendant’s Toyota Highlander was travelling from south to north. (

e) Damage to the beige Toyota Highlander driven by the defendant was in the front end, while damage to the blue Nissan Versa was in the middle passenger side, the airbag being deployed and the drivetrain also being compromised. Both vehicles were removed from the scene. (

f) The officer as a lay person estimated the damage to the blue Nissan Versa to be $8,000 and to the Highlander to be $5,000. (

g) The Defendant and Ms. Gibson were both able to provide all documentation that was requested by the officer save and except the defendant was unable to provide ownership for her vehicle. EVIDENCE FOR THE DEFENCE: 9. The defendant’s evidence may be summarized as follows: (

a) The defendant gave evidence on two days. On the first day of her evidence she indicated that she was travelling northbound on Sentinel Road as an alternate to work due to construction on the normal route that she takes. She was half way through the intersection when another vehicle which was travelling from north to south on Sentinel Road and making a left hand turn onto Grandravine Avenue came infront of her and she hit the vehicle. (

b) She further indicated that she had stopped for about 5 seconds before proceeding into the intersection, having looked around prior to entering the intersection and did not see the blue Nissan Versa until she was two thirds or halfway through the intersection. (

c) On the second day of giving her evidence, the defendant reiterated that she was travelling northbound on Sentinel Road and had come to a full stop before the stop line. There was no car in front of her when she had stopped. (

d) She once again testified that the blue Nissan Versa was travelling southbound on Sentinel Road to make a left hand turn. Traffic was busy. (

e) She looked before she entered the intersection, saw she could proceed and did so but the blue Nissan Versa did not stop for the sign and by the time it was in the middle of the intersection right in front of her she had no time to stop and avoid the collision and hit her. (

f) She first saw the car when it was two car lengths away from the intersection and then it moved into the intersection and the collision occurred. (

g) There was no time to avoid the collision and if she had seen the car she would have stopped. The defendant indicated that the other vehicle was driving a little fast, around 40-50 kilometres per hour. (

h) The Defendant acknowledged that it was her front end that hit the blue Nissan Versa’s passenger side. (

i) The Defendant gave further evidence with regard to the photos taken by her husband. She indicated that the photos show that she was travelling straight through the intersection northbound on Sentinal Road and that the other vehicle was travelling southbound on Sentinal Road making a left turn. She further indicated that the intersection is bigger than most and she assumed that the other vehicle would stop at the intersection for the stop sign. She did not pay attention to the skid marks but had put her brakes on hard in order to avoid hitting the blue Nissan Versa but could not stop.

10. The defendant’s husband, Thack Ha gave evidence with regard to photos that he took when he arrive at the scene of the accidentapproximately 5 minutes after it occurred and that these photos show where the vehicles where at the time of the impact. THE LAW: 11. The defendant is charged with the offence of fail to surrender permit for motor vehicle and careless driving contrary to sections7(5)(

a) and 130 respectively of the Highway Traffic Act supra. 12. With respect to the charge of careless driving the decision of R. v. Beaucamp (ON CA), [1953] O.R. 422 sets outthe principle in law with regard to careless driving. “The factual standard is constantly shifting one, depending on the road, visibility,weather and traffic conditions that exist or may reasonably be expected, and any other conditions that ordinary drivers would take intoconsideration.

It is an objective standard not related to the degree of proficiency or experience of any particular accused” However, thelegal standard remains the same in that it is what the ‘average careful and prudent driver in like circumstances would have done’. It isnot the standard of perfection. 13. In the decision of R. v. McIver (ON CA), [1965] 2 O.R. 475 the Court of Appeal found that as the

section is silentwith regard to intent, the crown need only prove that the accused committed the prohibited act unless he can show that this was donewithout negligence or fault on his part.

The court upheld the decision of the lower court which, had found that the evidence supported an inference that could be drawn that the accused was driving carelessly. ‘Thejuxtaposition of the two vehicles by itself would point to lack of due care and attention on the part of the accused and there was nothingin the evidence from which a contrary conclusion could be drawn.’ It is up to the defendant to raise a due diligence defence and to proveon the balance of probabilities, that his conduct was caused by the negligence of some other person, circumstance of a mechanicalfailure. ANALYSIS: 14.

The question that this court needs to ask is: what are the circumstances in this particular situation that warrant a conviction ofcareless driving. 15. Can the manner in which the defendant drove her vehicle be characterized as with due care and control and as such not carelessly orwas it a mere error in judgment or a momentary inattention? 16. There is no issue as to where the accident occurred; where the final resting place of the vehicles was; where the damages were toboth vehicles; that the defendant hit Ms.

Gibson’s vehicle; that it is an intersection governed by four way stop signs with stop lines; andit is a wide intersection. 17. What is at issue is the direction from and to that Ms. Gibson’s vehicle was travelling and who entered the intersection first. 18. The evidence of Ms. Gibson is corroborated by an independent witness Ms. Laing. Both Ms. Gibson and Ms. Laing indicate thatMs. Gibson was travelling eastbound on Grandravine Avenue and that the defendant was travelling northbound on Sentinal Road.

Ms.Laing was travelling directly behind the defendant and acknowledged that this is a busy intersection at the time of day when the accidentoccurred. She was paying attention to the vehicles around her. She acknowledges that the defendant stopped at the intersection as didall four vehicles. Ms. Laing was stopped for about 2-3 seconds and observed Ms. Gibson’s car to her left and that she had the right ofway to proceed and did do so. As Ms. Gibson entered the intersection the defendant ‘gunned’ it into the intersection at a speed thatcould be heard by Ms. Laing through her open window hitting Ms.

Gibson’s vehicle on the passenger’s side and causing that vehicle tospin around. 19. The defendant maintains throughout her evidence in chief and in extensive cross examination that Ms. Gibson was travelling

southbound on Sentinal Road to make a left hand turn onto Grandravine Avenue. She indicated that at first she did not see Ms. Gibson’s vehicle until she was right in front of her and that she could not stop. Later the defendant acknowledged that she did see Ms. Gibson as she was approaching the intersection and that Ms. Gibson did not stop for the stop sign was going a little fast and proceeded through the intersection right in front of the defendant who could not stop and hit her. The suggestion is that the defendant was in the intersection and had the right of way, not Ms. Gibson. 20.

The court does not accept the evidence of the defendant. The court finds that Ms. Gibson was travelling eastbound on Grandravine Avenue. Both Ms. Gibson and an independent witness have stated that Ms. Gibson was travelling eastbound on Grandravine Avenue. The scuff tire marks on the roadway indicated by the Officer corroborate the evidence of Ms. Laing who indicated that the defendant ‘gunned it’ into the intersection at a higher speed causing Ms. Gibson’s vehicle to spin around. For this reason Ms.

Gibson’s vehicle was found to rest in the northeast quadrant of the intersection as the pictures taken by the defendant’s husband would indicate. The skid mark would not be consistent of a vehicle travelling southbound on Sentinel Road and making a left hand turn into Grandravine Avenue. 21. The defendant in her evidence was inconsistent. First she indicated that when she approached the intersection and stopped for the stop sign, counting to 5 and looking around before she proceeded, Ms. Gibson was not anywhere near the intersection. She then indicated that she first saw Ms.

Gibson’s vehicle travelling southbound on Sentinal Road when she was some distance before the intersection and believed that she would stop. Instead Ms. Gibson entered the intersection having accelerated and proceeded to make a left hand turn in front of the Defendant who could not stop for her. 22.

Does the manner of driving and conduct of the defendant constitute driving without due care and attention or without reasonable consideration for other persons using the highway or was her action an error in judgment or momentary inattention which given the circumstances does not or should not be considered to be careless driving as determined in R. v. Beaucamp supra and R. v. McIver supra ? And what should the court consider to be the necessary care and attention under the circumstances that the defendant should have afforded other drivers using the road.

This is the standard of what an ordinary reasonable person would have done in such circumstances. 23. The court has heard evidence from three prosecution witnesses and two defence witnesses. The court finds that the roads were dry and it was a summer morning in August. There was nothing that obscured the view of the stop signs or stop lines. Ms. Laing was travelling behind the defendant and she was able to see that all vehicles had stopped for the stop sign.

Should an ordinary person travelling on Sentinal Road stopped for the stop sign, having counted to 5 have seen a vehicle to the right or left or in front of them also stopped for the stop sign and could this be reasonably expected? The court finds that that is a standard that can be expected. The defendant is not even clear as to what direction Ms. Gibson’s vehicle was travelling from. Having stopped at the intersection and if the court accepts that she did count to 5 before proceeding, and if she did look in all directions she should have seen Ms.

Gibson’s vehicle and that this vehicle had already entered the intersection before the defendant had proceeded into the intersection. This is not an unreasonable standard to expect from a reasonably careful driver. Moreover, there is very clear evidence from an independent witness who had a clear view of the intersection that the defendant entered the intersection with such a speed that it could be heard through her open window, hitting Ms. Gibson’s vehicle in such a manner that it caused her to spin around as noted by the direction of the black tire marks on the roadway. As such, Ms.

Gibson’s vehicle was not drivable and damages were extensive to the structure of the vehicle. 24. This court finds that the prosecution has proven the case of careless driving beyond a reasonable doubt as the elements of the offence have been established. 25. The officer in his evidence stated that the defendant was unable to provide the ownership permit for her vehicle. The court has not heard any evidence to the contrary and finds that the necessary element of the offence being the non production of the permit when requested by the officer has been made out by the prosecution beyond a reasonable doubt.

DISPOSITION: 26. For the reasons set out above, the court finds that the prosecution has met its onus of proving beyond a reasonable doubt that the defendant was driving without due care and attention or without reasonable consideration for other persons using the highway and failed to surrender her permit for the motor vehicle on August 9, 2012. The court finds the defendant guilty of contravening

section 130 and section 7(5) (

a) of the Highway Traffic Act , supra . Dated the 17th day of December, 2014, at the City of Toronto.

“J. Opalinski” Joanna Opalinski J.P.