R. v. Spasojevic, 2012 ONCJ 693

Citation: R. v. Spasojevic , 2012 ONCJ 693 R. v. Michel Spasojevic Between Regina and Michel Spasojevic Ontario Court of Justice Toronto, Ontario P. Kowarsky J.P. Heard: August 10, 2012 and September 5, 2012 Judgment: November 9, 2012 Municipal Prosecutor: Ms. I. Mamane Counsel for the Defendant: Mr. B. Lichty REASONS FOR JUDGMENT P. KOWARSKY J.P. A. THE CHARGES 1 . The defendant is charged with the following two offences: Fail to Obey Lane Sign contrary to the Highway Traffic Act, section 154(1) (

c) Careless Driving contrary to the Highway Traffic Act,

section 130 B. THE EVIDENCE FOR THE PROSECUTION 2 . The evidence of the Prosecution’s first witness, Mr. Gordon Foster may be summarised as follows:

a) In the morning of October 18 th 2011 he was on his way to work, riding his bicycle heading north on Lansdowne Avenue towards Dundas Street in the city of Toronto.

b) The driver of a motor vehicle which was travelling behind him honked at him several times.

c) He was riding between the streetcar tracks, “a little bit from the curb” because there was “broken pavement” in the curb lane, but still riding mostly in the curb lane.

d) The driver of that vehicle continued to honk while passing him on his left in the centre lane. He didn’t understand why the driver had honked at him. He heard the honking and looked at the vehicle as it passed him.

e) That vehicle was a jeep-type vehicle, and it was pulling an empty trailer.

f) The jeep stopped at the red light at the intersection of Lansdowne Avenue and Dundas Street, and Mr. Foster stopped behind it.

g) At that time he saw another cyclist talking to the driver of the jeep through the passenger’s side window, telling him that the right wheel of his trailer was in the curb lane.

h) Mr. Foster rode passed the jeep “and placed myself in front of his vehicle.”

i) When the light turned green for him, “I was cycling towards College and I was between the streetcar tracks.” He didn’t want to be at the curb lane because he was worried about the trailer.

j) The jeep then sped past him on the right, and “cut in front of me, and braked suddenly at the green light.” Mr. Foster tried to brake to avoid colliding with the jeep, but he was unable to do so.

k) “I wasn’t traveling very fast and I didn’t expect it to stop at a green light.”

l) The front tire of his bicycle hit the rear of the trailer. He flipped over the handle bars. His bicycle landed in the trailer, and he landed on the street. m) “I got up to approach the passenger’s side window of the vehicle and shouted at the driver to get out of the car. And, the reason I did this, I needed to retrieve my bicycle from the trailer” together with his bag which contained his wallet.

n) The driver was not getting out of his vehicle; Mr. Foster tried to open the passenger’s side door, but it was locked, although the window was partially open. “I put my hand in the window to see if I could unlock the door, and then I thought that’s stupid because if he drives away, my hand’s in his window so I took my hand out right away.”

o) While Mr. Foster was still standing at the passenger’s side door, the driver accelerated and sped away. p) “And as I was standing there, the back axle of the trailer hit my ankle. It was a wide trailer, and I didn’t realise that as he sped away the axle would be hitting me. And, it broke my ankle and I fell backwards. I put my elbow down to break the fall, my right elbow, and I discovered later at the hospital that my elbow was smashed into four pieces....and there was a... fracture of the radius near the wrist as well.” His bicycle fell off the trailer as it sped away, and landed in the middle of the intersection.

q) Witnesses at the scene called 911; an ambulance came, and he was taken to the hospital where he had surgery for his very serious injuries. He had a cast on his ankle and his arm for several months thereafter. It was only after some three months that he was able to return to work at a school which specialises in teaching English as a Second Language.

r) Mr. Foster continues to have therapy for the injuries which he sustained in the collision.

s) Under cross-examination, Mr. Foster testified that there was no lane division on Lansdowne Avenue between Dundas Street and College Street, and there were no lane markers for the right lane or the left lane. Since he did not want to be in the curb lane, his best option was to ride between the streetcar tracks, which is what he did.

t) Before he reached Dundas Street, he heard a car honking at him, and when that vehicle drove past him, he made a rude gesture at the driver with his middle finger.

u) When the jeep made the sudden stop at the Dundas Street intersection, he estimated that he was about three metres from the back of the trailer, but he was looking at the green light, and “I assumed that the vehicle was going to proceed through the green light because it had accelerated so quickly to pass in front of me.”

v) Mr. Foster wanted the driver to get out of his vehicle so that he could retrieve his bicycle and personal belongings from the trailer. When the driver did not get out, Mr. Foster “shouted and swore at him using an expletive.”

w) When asked by Defence Counsel why he had not just picked up his bicycle from the trailer, he replied: “Well, I was worried that if I tried to pick my bicycle off of the trailer that the driver would just accelerate away, and I would be injured in the process.”

x) As the jeep started to move he was still standing at the side of it trying to get the licence plate number, when he was hit by the trailer. 3 . The second witness for the Prosecution was Ms. Thao Nguyen. Her evidence may be encapsulated as follows:

a) On October 18 th 2011 she was standing at the Bus Shelter at the intersection of Lansdowne Avenue and College Street in Toronto, waiting for the Northbound Bus on Lansdowne.

b) She saw a man on a bicycle travelling northbound on Lansdowne Avenue. The cyclist was yelling at the driver of a motor vehicle also heading north on Lansdowne Avenue.

c) She saw that the traffic light at the intersection at that time was green for northbound traffic. “And then the gentleman in the vehicle slammed on the brakes, and it was a green light, and then the gentleman on the bicycle hit….the trailer, which was attached to the back of the jeep, and then he fell and he tumbled. And then he got back up, and then he went up to the side of the car on the driver’s side.”

d) The cyclist was yelling at the driver to get out of the car, but he did not get out.

e) When the light turned green again for northbound traffic on Lansdowne Avenue, the driver drove off and the trailer “clipped the cyclist’s foot or ankle, and he fell backwards and he tumbled again.” This occurred right in front of her. As she expressed it: “Everything was literally just in front of me.” There was nothing between her and the scene so that she had a clear and unobstructed view. f) “Whatever happened before they got to the intersection, I have no idea.

I didn’t see that.” Although before the second collision she heard the cyclist and the driver exchanging words, “and I heard the cyclist, who was really angry and shouting at him to come out.” This, she testified, occurred while the cyclist was standing on the driver’s side of the vehicle.

g) She and “a few other witnesses” helped the gentleman to get off the road to the side. Someone called 911 and the ambulance and the police arrived on the scene.

h) Although the driver had driven off, someone had noted his licence plate number, and shortly thereafter he returned to the scene. An officer “went after the vehicle” and brought the driver back to the scene of the collision.

i) By that time, the ambulance had already taken the cyclist away.

j) She did see the cyclist put his arm inside the car, and assumed that “he was trying to reach for the guy.” During cross- examination she initially testified that the altercation took place on the driver’s side of the vehicle. Subsequently, when the Court asked for clarification, she said: “I don’t remember if he was on the passenger’s side, but what I do remember is when he got clipped by the trailer the second time, he was on the passenger’s side.” And she remembered “that the windows weren’t all the way down.” 4 . The third civilian witness for the Prosecution was Mr. Michael Duffy, who essentially testified as follows:

a) On October 18 th 2011, he was riding his bicycle northbound on Lansdowne Avenue heading towards Dundas Street.

b) At the intersection of Lansdowne Avenue and Dundas Street he saw another cyclist heading in the same direction, and the cyclist stopped in front of a vehicle which was pulling a trailer. They were all stopped at a red light. c) “When the light turned green, I proceeded through the intersection. The other cyclist was doing the same” and the vehicle behind him “then swung out into the inside lane, or the right hand lane of Lansdowne, sped past aggressively….As soon as he got by the cyclist, he swung back into the left hand lane and then hit his brakes, slammed on his brakes.

The cyclist hit the back of the guy’s trailer, or the vehicle’s trailer, and went over the handlebars.” The bicycle landed in the trailer. The cyclist who had collided with the trailer approached the passenger’s side door, and “he and the driver exchanged words while the light was red.”

d) When the light turned green “the driver sped off, striking …him within his lower leg, the wheel well of the trailer. The bicycle fell off the trailer in the middle of the intersection when the trailer hit the [streetcar] tracks, like with the bumps.”

e) This all occurred in the middle of the intersection of College Street and Lansdowne Avenue.

f) When the driver sped away from the intersection, “because the trailer is wider than the truck, the cyclist was standing at the side of the vehicle, and the wheel well clipped the back of his legs. The cyclist flipped head over heels, and landed upside down on the road.”

g) He is positive that after the vehicle drove around the right side of the cyclist, and then drove ahead of him into the same lane, he suddenly stopped even though the light for him was green. Emphatically, Mr. Duffy testified: “It wasn’t yellow; it wasn’t red; it was green.”

h) Mr. Duffy told the Court that he had not seen the cyclist reach into the vehicle after the bicycle had hit the back of the trailer.

i) During cross-examination Defence Counsel asked Mr. Duffy whether he could recall approximately how fast the vehicle was moving. In response, Mr. Duffy testified: “I think that would be pretty hard to judge. However, you could hear the roar of the motor where you knew he gunned it.” 5 . The fourth witness for the Prosecution was Officer Sergiy Kuznetsov, whose testimony may be summarised as follows:

a) On 18 th October 2011 at approximately 8:10 am he was dispatched to the intersection of Lansdowne Avenue and College Street to investigate a motor collision between a motor vehicle and a bicycle resulting in personal injury to the cyclist. That intersection is controlled by traffic lights.

b) Upon his arrival at the scene very shortly after receiving the radio call, he noted that the cyclist who had apparently been injured in the collision was already in an ambulance and being transported to St. Joseph’s hospital.

c) After obtaining information as to the identity of the driver and the cyclist and doing some further investigation, he went to the hospital where he interviewed the cyclist.

d) Prior to that he obtained a statement from the defendant, after which he charged the defendant with failing to obey a lane sign contrary to section 154(1)(

c) of the Highway Traffic Act.

e) The defendant had been driving a brown Jeep, Ontario Licence Plate Number BKWV310, and it had a two-wheel U-Haul dolly attached to the back of it. The wheels of the dolly rendered it wider that the width of the Jeep.

f) He was satisfied that the area of impact as related by the defendant was consistent with what the witnesses had told him, which was later confirmed by the cyclist.

g) After interviewing the cyclist he contacted the defendant later that day, met with him, took a second statement from him, and charged him also with Careless Driving contrary to

section 130 of the Highway Traffic Act.

C. THE EVIDENCE FOR THE DEFENCE 6 . The defendant, Michel Spasojevic, testified. His evidence may be summarised as follows:

a) He has been driving for seventeen years. On the day and time in question, he was driving a ’95 Grand Cherokee with a yellow car dolly attached behind it, heading northbound on Lansdowne Avenue, intending to help his friend “bring a car to his house.”

b) The dolly is “about the length of a full size truck....a three-quarter-ton truck. The axle’s a little wider than my Jeep is – it’s like a full size truck axle, wider than any SUV or any type like that. It fit on a Ford F250. It’s about the same axle width as that.”

c) After crossing Dundas Street, Lansdowne Avenue northbound becomes a single lane with a bicycle lane on the right side. He was driving in that single northbound lane.

d) At that time a cyclist was riding in the bicycle lane, and yelling at him. “He was saying that my trailer was weaving. And, I was telling him it wasn’t weaving. I just said to watch out for it. I have no control over the trailer when I’m driving. If it hits a little bump it does go a little bit side to side. I mean, I have no control; it has no weight on it. Yeah, I told him to watch out, and he started yelling at me, cussing me out.”

e) When the light turned green for him, he noticed that the cyclist had ridden and stopped right in front of his vehicle: “Right in front of my vehicle, right dead centre in my vehicle.” f) “After the light turned green, I honked the horn at the cyclist in front of me about three or four times. He turned around, flip me off. I went around him and I saw the light turn yellow and I stopped.”

g) After crossing Dundas Street heading towards College Street, he went around the cyclist and stopped at the yellow light.

h) Prior to this verbal altercation with Mr. Foster, he had had a similar altercation with another cyclist. Somehow, he got that cyclist’s name: Mike Duffy. “He was the one who started it all. Mike Duffy was arguing with me. It all started at the intersection of Dundas and Lansdowne.” However, he confirmed that the cyclist who had been in front of his vehicle, and who had hit the back of his dolly was in fact Mr. Foster and not Mr. Duffy.

i) After Mr. Foster had stopped in front of his vehicle, and after he had honked, and then driven around him on his right, “I saw the light turn yellow. I stopped.”

j) After Mr. Foster’s bicycle had collided with his dolly, “I was ready to come out of my vehicle. All at once he’s at my passenger window.”

k) The cyclist was trying to get into his vehicle, “threatening me, telling me you’re crazy, you’re nuts. I didn’t say a word.” The passenger’s side door was unlocked, and the window was partially down.

l) He was panicking... scared for his life.” Mr. Foster was holding on to the door frame of his truck. “I hit the brake to let him go off my door frame; then I sped off through the red light.” After driving north and passing a few traffic lights, he returned to the scene of the collision.

m) After the incident with Mr. Duffy, he had opened his passenger’s side window, and left it open so that when the first collision occurred with Mr. Foster, his passenger’s door was unlocked and that window was completely open.

n) Upon re-examination, he told the court that his window was not actually completely open, only partially.

o) First he told the court that Mr. Foster’s “whole body was inside my vehicle.” Then, when questioned by the prosecutor, he testified that it wasn’t Mr. Foster’s whole body inside his vehicle; “just his chest portion, trying to grab the trim panel to open the door.”

p) Mr. Foster never tried to open the door from the outside, only from the inside. D. ANALYSIS OF THE LAW 7 . The law is that there is a presumption in favour of treating regulatory offences, such as those in the case at bar, as strict liability offences unless there is compelling legislative direction to categorize them as either mens rea or absolute liability offences. I am satisfied that the presumption in relation to the two charges which the defendant is facing applies. The effect of this is that –

“the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by provingthat he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. Thedefence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act oromission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.” See R. v. Sault Ste. Marie (City), (SCC), [1978] 2 S.C.R. 1299. 8. I deal first with the charge of “Fail to obey lane sign” pursuant to section 154(1) (

c) of the Highway Traffic Act, which provides asfollows: “Where a highway has been divided into clearly marked lanes for traffic, any lane may be designated for slowly moving traffic, traffic moving in a particular direction or classes or types ofvehicles and, despite

section 141, where a lane is so designated and official signs indicating the direction are erected, every driver shall obey the instructions on the official signs.” 9. There is no evidence before me whatsoever that Lansdowne Avenue at the location and time of the infraction had been divided intoclearly marked lanes for traffic or that there were any official signs erected, designating specific direction for travel. 10. Accordingly, I am satisfied that the Prosecution has not proven the actus reus of this charge, and I dismiss it. 11. I deal now with the charge of Careless Driving pursuant to

section 130 of the Highway Traffic Act, which provides as follows: “Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attentionor without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 andnot more that $2000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permitmay be suspended for a period of not more than two years.” 12. Our courts have held that the standard required of drivers in the context of

Section 130 of the Highway Traffic Act is an objectiveone which is constantly shifting, depending on the road, visibility, weather and traffic conditions that exist at the time or that mayreasonably be expected, as well as any other conditions that ordinary drivers would take into consideration. See: R. v. Beauchamp, (ON CA), [1953] O.R. 422. 13. In R. v. Weedon (1987), 7 M.V.R. (2d) 21 (B.C.Co.Ct) the Court held that in Careless Driving cases “the actus reus is improperdriving judged on an objective basis.

The lack of due care and attention can then be inferred from the objective indicator.” The failure ofthe accused to consider the risk he was creating constituted the requisite inadvertence for conviction. 14. In R. v. Globocki [1991], O.J. No. 214 (O.C.J.), the Court held that the Prosecution is required to show sufficient departure from thestandard of a prudent and reasonable driver to render the driving “deserving of punishment,” and that in each case “it is necessary toconsider whether and to what extent the defendant departed from the standard appropriate to the factual circumstances facing thedefendant.” 15.

Where an accident has occurred, the fact that serious injury or death has resulted is not, except in unusual cases, relevant to anassessment of whether there has been a departure from the standard of care which would justify a finding of careless driving. See: R. v.Globocki (supra). E. CREDIBILTY AND FINDINGS OF FACT 16. It seems to me that the underlying issue giving rise to the charge of Careless Driving is road rage. 17. The evidence of the defendant suggests that he is knowledgeable with respect to motor vehicles, trailers and the like.

This is evidentfrom his statement that the dolly was rented for the purpose of helping a friend transport a car to his house, and more particularly, as Iindicated earlier in paragraph 6 (

b) the defendant testified that the dolly is “about the length of a full size truck....a three-quarter-tontruck. The axle’s a little wider than my Jeep is – it’s like a full size truck axle, wider than any SUV or any type like that. It fit on a FordF250. It’s about the same axle width as that.” 18. The evidence of Mr. Foster, who was the actual victim in this case, is that he was riding his bicycle behind a Jeep pulling an emptytrailer, which was weaving from side to side. He tried in vain to attract the driver’s attention to tell him about the weaving trailer. The

defendant honked his horn at him for no apparent reason. He was angry so that when he and the defendant stopped at a red light, he placed himself and his bicycle in front of the defendant’s vehicle, which angered the defendant. 19 . After the light turned green, the cyclist and the defendant proceeded. The defendant wanted to pass the cyclist who continued to ride in front of him, which again upset the defendant. He then drove around the cyclist on the right side, overtook him and continued to drive in front of him. 20 .

According to the evidence of the cyclist, when they reached the next intersection, the light was green, but the defendant made a sudden stop, causing the cyclist to collide with the trailer, which resulted in the cyclist’s going head over heels over the handle bars. The bicycle landed in the empty dolly. The cyclist quickly got up, and approached the passenger’s side of the vehicle, yelling and swearing at the driver, urging him to exit his vehicle. 21 . Mr. Foster told the court that the door was locked and the window was partially open. Mr.

Foster reached inside through the window to try and unlock the door, but immediately, sensing the danger of such a manoeuvre, he changed his mind, and withdrew his hand. 22 . While he was still standing next to the passenger’s side window, Mr. Foster told the court that the defendant suddenly sped away. The right wheel of the trailer hit him, knocking him down, causing significant injuries, requiring ambulance assistance, hospitalisation, surgery and ongoing treatment and therapy for broken limbs and more. 23 . On the other hand, the evidence of the defendant is somewhat different.

He knew that the trailer, which he referred to as a dolly, was wider than his Jeep and that he had no control over its swaying from side to side while he was driving. 24 . Further, the defendant denies that he stopped suddenly at a green light causing the first collision, saying that it was ‘yellow’ when he stopped. His testimony is that when the cyclist initially collided with the trailer, the passenger’s side door was not locked.

He was going to get out of his vehicle but was so scared by the yelling and swearing of the cyclist that he sped through a red light and left the scene, coming back not too long thereafter, when he was told that the police had arrived on the scene. 25 . The first question is whether I believe the evidence of the prosecution or that of the defendant. The next question is: if I do believe the evidence of the prosecution, am I satisfied beyond a reasonable doubt that the defendant’s driving constitutes “Careless Driving” within the meaning of the legislation, and whether he is deserving of punishment? 26 .

The defendant testified that he knew that his trailer was wider than his vehicle and that he had little, if any, control of its swaying from side to side. This should have alerted him to the dangers of driving quickly, particularly at that early hour of the morning when traffic is at a high volume in that vicinity. Even if he was justified in being upset by the cyclist’s stopping right in front of his vehicle at the red light, to have manoeuvred his vehicle as he did, to pass on the right side of the cyclist, was anything but careful. 27 .

I do not believe that when he came to a sudden stop causing the first collision, that the light was amber. Three civilian witnesses testified that the light was green. Consequently, I am satisfied that the defendant stopped abruptly because he was angry with the cyclist and intended to frighten him by so doing. 28 . It is not surprising therefore that the cyclist was angry, particularly when the defendant would not get out of his vehicle to investigate what had happened, and he needed to retrieve his bicycle and belongings from the trailer.

I do not believe the defendant’s testimony that the driver’s side door of the Jeep was unlocked. The evidence of all three civilian witnesses is that the cyclist was unable to open the door from the outside despite his attempts. 29 . Neither do I believe the evidence of the defendant that when he drove off just prior to the second collision the light was red for him. It strains common sense that he did that during early morning high volume traffic without colliding with any vehicle travelling in the opposite direction through the green light. 30 .

Knowing, as the defendant did, that the trailer was wider than the Jeep, and that he had no control over the trailer’s swaying from side to side, a reasonable, prudent driver would have driven with the care and attention that was due in such a situation, and with

reasonable consideration for other persons, such as cyclists, using the roads in that vicinity at that time of the day. 31 . The evidence of each of the three civilian witnesses is consistent with the others, and coupled with their statements to the Officer, I find that there was ample reason to charge the defendant with Careless Driving. 32 . In my view, the evidence of the defendant that he drove away resulting in the second collision because he was scared for his life by Mr. Foster’s behaviour, does not accord with common sense.

If the passenger’s door of the defendant’s vehicle was in fact unlocked at the time, why couldn’t the cyclist simply open it? I completely reject the defendant’s evidence that Mr. Foster had never even tried to open the door from the outside but only from the inside. This is in direct conflict with the testimony of all three civilian witnesses, and would be totally inconsistent with natural behaviour. 33 . Moreover, why did the defendant not exit his vehicle as soon as the first collision occurred? That would have been consistent with what a concerned and prudent driver would have done in the circumstances. 34 .

I find that the confluence of the defendant’s failure to get out of the vehicle immediately after the first collision and my finding of fact that the passenger’s side door was locked at the time, exacerbated the anger of the cyclist. However, there is no compelling evidence that the defendant was in imminent danger at the time. F. DISPOSITION 35 . On the totality of all the evidence, I find that the defendant was driving carelessly and that he made no attempt whatsoever to prevent his driving in such a manner, thereby supporting my conclusion that he did not exercise due diligence in this case.

On the contrary, the defendant’s careless driving was the causa causans of the collisions, which resulted in very serious injury to the cyclist. As such, I find that the Prosecution has proven its case beyond a reasonable doubt. There will be a finding of guilty, and a conviction will be registered. G. SENTENCING 36 .

Prior to my asking for submissions on penalty, it is noteworthy that the jurisprudence indicates that in assessing the fitness of sentence, it is appropriate to take into account the fact that the driving caused an accident, serious injury or death although without intentional or wilful conduct as would be found in a case of dangerous driving causing injury or death. See: R. v. Martinez (1996), 21 M.V.R. (3d) 106 (Ont.C.A.) . P. Kowarsky J.P. November 9 th 2012