R. v. Sonnilal, 2014 ONCJ 108

Citation: R. v. Sonnilal , 2014 ONCJ 108 IN THE MATTER OF the Highway Traffic Act, R.S.O. 1990, c. H.8 Between Her Majesty The Queen prosecutor and Mukesh Sonnilal defendant Ontario Court of Justice Brampton, Ontario Quon J. P. Reasons for Judgment Charge: s. 130 H.T.A. – “careless driving” Trial held: June 20 and September 4, 2013.

Judgment rendered: February 28, 2014. Counsel: V. Aujla, assistant Crown attorney R. Mann, counsel for the defendant Cases Considered or Referred To: Boomer v. Penn, [1965] O.J. No. 1076 (QL), 1 O.R. 119 (O.H.C.), per Evans J. Dobbs v. Mayer Estate, [1985] O.J. No. 1163 (QL) (O.H.C. (Div. Ct.)), per Craig J. El Dali v. Panjalingam, [2013] O.J. No. 208 (QL), 2013 ONCA 24 (O.C.A.), per Laskin, MacPherson and Gillese JJ.A. Flynn v. Saunders, [1947] O.J. No. 127 (QL) (O.H.C.), per Barlow J.; affirmed [1947] O.J. No. 305 (QL) (O.C.A.), per Robertson C.J.O.,Laidlaw and Roach JJ.A. Fontaine v.

British Columbia (Official Administrator), (SCC), [1997] S.C.J. No. 100 (QL) (S.C.C.). Graham v. Hodgkinson (1983), (ON CA), 40 O.R. (2d) 697 (O.C.A.), per Mackinnon A.C.J.O., Cory and RobinsJJ.A. Lemaire v. Ashabi, [2003] B.C.J. No. 2438 (QL) (B.C.C.A.). McIntosh v. Bell, (ON CA), [1932] O.R. 179 (O.C.A.), per Latchford, C.J., Magee, and Hodgins, JJ.A. Mclaren v. Rice, [2009] B.C.J. No. 2108 (QL) (B.C.S.C.). Perry v. Banno, [1993] B.C.J. No. 59 (QL), 43 M.V.R. (2d) 125 (B.C.S.C.). R. v. Andrade, [2003] O.J. No. 3555 (QL) (O.C.J.), per De Morais J.P. R. v. Ariganello, [2013] O.J.

No. 211 (QL) (O.C.J.), per Baldwin J.

R. v. Beauchamp, (ON CA), [1953] 4 D.L.R. 340, 16 C.R. 270, 106 C.C.C. 6, O.R. 422 (O.C.A.), per Pickup C.J.O., J.K.Mackay and F.G. Mackay JJ.A. R. v. Belovari, [1996] O.J. No. 5009 (QL) (O.C.J.), per Tisi J.P. R. v. Bisram, [2011] O.J. No. 3048 (QL) (S.C.J.O.), per Hill J. R. v. Cianchino, [2010] O.J. No. 3162 (QL) (O.C.J.), per Quon J.P. R. v. Defaria, 2008 ONCJ 687 , [2008] O.J. No. 5427 (QL) (O.C.J.), per Duncan J. R. v. Dillman, [2008] O.J. No. 1120 (QL), 68 M.V.R. (5th) 272 (O.C.J.), per Duncan J. R. v. Doherty, [2011] O.J. No. 6217 (QL) (O.C.J.), per Worku J.P. R. v. Dougan, [2008] O.J.

No. 5292 (QL) (O.C.J.), per Brown J. R. v. Drljevic, 2010 ONCJ 188 (O.C.J.), per Dechert J.P. R. v. Globocki, [1991] O.J. No. 214 (QL) (Ont. Ct. (Prov. Div.)), per MacDonnell J. R. v. Grahorac, [2004] O.J. No. 5323 (QL) (O.C.J.), per De Morais J.P. R. v. Hamid, [2008] O.J. No. 2059 (QL) (O.C.J.), per Quon J.P. R. v. Handy, 2002 SCC 56 , [2002] 2 S.C.R. 908 (S.C.C.). R. v. Hubbs, 2014 ONCJ 32 , [2014] O.J. No. 381 (QL) (O.C.J.), per Quon J.P. R. v. Jackson, 2010 ONCJ 487 (O.C.J.), per Quon J.P. R. v. Johnson, [1966] B.C.J. No. 64 (QL), 3 C.C.C. 26 (B.C.C.A.). R. v. Khabra, [2003] O.J.

No. 1556 (QL) (O.C.J.), per Wolder J. R. v. Kinch, [2004] O.J. No. 486 (QL) (S.C.J.O.), per Durno J. R. v. Kotar, [1994] O.J. No. 763 (QL) (Ont. Ct. (Prov. Div.)), per Lenz J.

R. v. Kresko, [2013] O.J. No. 1523 (QL) (S.C.J.O.), per Himel J. R. v. Mainwaring, [2010] O.J. No. 689 (QL) (O.C.J.), per Baldelli J.P. R. v. Manoukian, [1996] O.J. No. 2160 (QL) (O.C.A.), per Finlayson, Weiler and Charron JJ.A. R. v. McIver, (SCC), [1965] O.J. No. 998 (QL) (O.C.A.), per Porter, C.J.O., Roach, Gibson, Mackay and Kelly, JJ.A. R. v. Mouland, 2011 ONCJ 390 (O.C.J.), per Dechert J.P. R. v. Pereira, 2009 ONCJ 222 (O.C.J.), per Dechert J.P. R. v. Pyszko, [1998] O.J. No. 1218 (QL) (Ont. Ct. (Prov. Div.)), per Fontana J. R. v. Trevisan, [2009] O.J. No. 606 (QL) (O.C.J.), per Dechert J.P. R. v. Sault Ste.

Marie (1978), (SCC), 40 C.C.C. (2d) 353 (S.C.C.). R. v. Skorput (1992), (ON CJ), 72 C.C.C. (3d) 294 (Ont. Ct. (Prov. Div.)), per MacDonnell J. R. v. Waite, (SCC), [1989] 1 S.C.R. 1436, 13 M.V.R. (2d) 236, 69 C.R. (3d) 323, 48 C.C.C. (3d) 1 (S.C.C.). R. v. Wangler, 1987 CarswellOnt 3933 (Ont.Ct. (Prov. Div.)), per Greco J. R. v. Weedon (1987), 7 M.V.R. (2d) 21 (B.C. Co. Ct.). R. v. Wilson, (ON CA), [1971] 1 O.R. 349, 1 C.C.C. (2d) 466 (O.C.A.), per Gale, C.J.O., MacKay and Jessup, JJ.A. R. v. Wong, 2013 ONCJ 112 , [2013] O.J. No. 1033 (QL) (O.C.J.), per Dechert J.P. Reid v. Bradley, [2005] O.J.

No. 1418 (QL) (O.C.A.), per Feldman, Cronk and Juriansz JJ.A. Rintoul v. X-Ray and Radium Industries Ltd., (SCC), [1956] S.C.R. 674 (S.C.C.). Telfer v. Wright, (ON CA), 23 O.R. (2d) 117 (O.C.A.), per Lacourciere, Zuber, and Wilson, JJ.A. Statutes, Regulations and Rules Cited:

Highway Traffic Act , R.S.O. 1990, c. H.8, s. 130. Reference Material Cited: Archibald, T., Jull, K., and Roach, K. Regulatory And Corporate Liability: From Due Diligence To Risk Management (Aurora, Ontario: Canada Law Book Inc., 2007). Exhibits entered: Exhibit "1" - photograph of Bovaird Drive in the City of Brampton looking eastbound, numbered Photo One, and taken by Cst. James Lidstone on July 26, 2012, shortly after the accident (1 page).

Exhibit "2" - photograph of Bovaird Drive in the City of Brampton looking eastbound, numbered Photo Four, and taken by Officer James Lidstone on July 26, 2012, shortly after the accident, showing o n the right of the photograph the green four-door Pontiac located near a set of bushes or shrubs, tire skid marks visible from the curb going over onto the small boulevard of grass, onto the pathway, and onto the patch of grass. There is also in the right-hand corner of the photograph two tarps, one tarp that appears to be some distance from the motor vehicle and one on the vehicle (1 page).

Exhibit "3" - photograph of Bovaird Drive in the City of Brampton looking eastbound towards the southside of the road, numbered Photo Five, and taken by Cst. James Lidstone on July 26, 2012, shortly after the accident, showing t he tire marks that go up onto the curb, onto the boulevard of grass, onto the pathway, and then onto the patch of grass. Also the green four-door Pontiac is visible with an emergency blanket hanging from the driver’s side of the vehicle, as well as the emergency blankets that Officer Aujla had placed near the retaining wall (1 page). .

Exhibit "4" - photograph taken closer to the accident scene which is numbered Photo Six and taken by Cst. James Lidstone on July 26, 2012, shortly after the accident, showing tire marks that go from the curb over onto the boulevard of grass, onto the pathway, onto the body of the grass. Also on the left side of the photograph the green four-door Pontiac with the emergency blankets on the driver's side of the vehicle is visible as well as the two emergency blankets that Officer Aujla had placed near the retaining wall (1 page).

Exhibit "5" - photograph of Bovaird Drive in the City of Brampton looking westbound, numbered Photo Nine, and taken by Cst. James Lidstone on July 26, 2012, shortly after the accident, showing on the left side of the photograph the front of the green Pontiac Bonneville with the emergency blankets on the driver's side of the vehicle and police emergency vehicles visible in the middle of the photograph (1 page). Exhibit "6" - photograph with view looking southbound across Bovaird Drive in the City of Brampton, numbered Photo Fifteen, and taken by Cst.

James Lidstone on July 26, 2012, shortly after the accident, showing the three eastbound lanes of Bovaird Drive. Also visible on the left side of the photograph is the green four-door Pontiac Bonneville with the emergency blankets that are tied to some yellow rope on the driver's side of the vehicle and a large tree or shrubbery. Also visible on the right side of the photograph is an area of smaller bushes and shrubbery, the two emergency blankets that Officer Aujla had laid down and then another large area of green shrubbery or trees (1 page).

Exhibit "7" - photograph of Bovaird Drive in the City of Brampton looking eastbound, numbered Photo Seventeen, and taken by Cst. James Lidstone on July 26, 2012, shortly after the accident, showing the tire marks that go from the curb onto the boulevard of grass, onto the pathway, and onto the actual grass portion. The skid marks travel in an eastbound direction. Also visible in the photograph is the green four-door Pontiac with the emergency blanket on the driver side of the vehicle, the large trees or shrubbery, as well as the emergency blankets Officer Aujla had placed (1 page).

Exhibit "8" - photograph of Bovaird Drive in the City of Brampton looking eastbound, numbered Photo Twenty-Seven, and taken by Cst. James Lidstone on July 26, 2012, shortly after the accident, showing the driver's side of the vehicle of the green Pontiac Bonneville,

with the driver's sideview mirror being raised and angling in a upward direction. In addition, the rear left passenger side window is not there as it had been smashed out. Also, a large dent is visible on the rear left passenger door and there is some body matter or some bodily fluids visible on the B-pillar that separates the driver’s side door and the rear left passenger door (1 page).

Exhibit "9" - copy of Vehicle Mechanical Inspection Report and 16 photographs of the defendant’s vehicle attached to the report that had been prepared by Chris DiMartino, licensed mechanic for Peel Regional Police, based on his examination of the defendant’s motor vehicle made on July 26, 2012, and admitted as evidence on consent by the defence (20 pages). Exhibit "10" - copy of Cst. Bruno Pupo’s curriculum vitae admitted during the voir dire held to determine Cst. Pupo’s qualifications as an expert witness on accident and collision reconstruction (9 pages).

Exhibit "11" - copy of Fatal Motor Vehicle Collision Report for occurrence number 2012-247079.21 that had been authored by Cst. Bruno Pupo, the accident and collision reconstructionist, dated August 6, 2012 (14 pages).

Exhibit "12" - 18 photographs taken by James Lidstone of the Peel Regional Police on July 26, 2012, of the defendant’s vehicle, the location of the tire marks starting from the centre lane of Bovaird Drive and traversing in a southerly direction across the curb lane, the grass boulevard, the sidewalk and to the defendant’s vehicle sitting in the grassed area just north of the concrete sound barrier wall, damage on the defendant’s vehicle, and the location of the defendant’s vehicle from different perspectives (18 pages).

Exhibit "13" - copy of computer-generated scaled drawing of accident area of Bovaird Drive East prepared from readings obtained by the Total Station survey Instrument on July 26, 2012, and drawn and prepared by Cst. Wang of the Major Collision Bureau of the Peel Regional Police on August 18, 2012, indicating scale is 1:500 and showing location of light pole with speed limit sign, eyeglasses, blood- stained foliage, sound barrier wall, location of the defendant’s motor vehicle, and tire marks of defendant’s motor vehicle (1 page).

Exhibit "14" - copy of Environment Canada Hourly Data Report of weather conditions, visibility, and temperature recorded at Toronto Lester B. Pearson International Airport on July 26, 2012 (2 pages). Exhibit "15" - copy of transcript of Mukesh Sonnilal’s videotaped statement made on July 26, 2012, at the offices of the Major Collision Bureau of Peel Regional Police, to Cst. Christopher Furlotte, where video recording started at 6:32 a.m. and ended at 9:24 a.m. (45 pages). 1.

INTRODUCTION [ 1 ] When 58 year-old Charles Sullivan stepped out of his house in the early morning of Thursday, July 26, 2012, sometime before 5:45 a.m., to go for an early-morning jog before he would head off to work, little did he know that he would not be going to work that morning.

Or, that he would not be returning home. [ 2 ] And, when 56 year-old Mukesh Sonnilal left his house at 5:20 a.m. that same morning to drive to work, little did he know that the motor vehicle he would use for driving to work that morning would unexpectedly lose control, jump the curb, and hit someone on a sidewalk who had been out for an early morning jog and who would regrettably die from the severe injuries he had received from the collision. [ 3 ] Unfortunately, there were no independent witnesses that had observed what had occurred in the eastbound lanes of Bovaird Drive just before Mukesh Sonnilal’s vehicle lost control, went over the curb, and struck Charles Sullivan who had been a pedestrian on the sidewalk.

Nor had there been any data that could be obtained from the defendant’s vehicle or calculations made from measuring the tire marks left at the accident scene that could be used to determine the speed that the defendant’s vehicle had been travelling at just before it lost control, abruptly left the roadway, and struck the pedestrian.

As for Sonnilal’s recollection of the event, he only recalls that he had applied the brakes as he moved his vehicle from the center lane of the three eastbound lanes of Bovaird Drive to the curb lane when his vehicle had suddenly and unexpectedly lost control, spun, and went over the curb and onto the sidewalk on the southside of Bovaird

Drive.

Furthermore, when a police officer had questioned Sonnilal some 64 minutes after the accident had occurred, Sonnilal had no knowledge of how or why his vehicle had spun out of control and abruptly left the roadway. [ 4 ] However, after an investigation was conducted by the Peel Regional Police into the motor vehicle and pedestrian collision that had occurred on the sidewalk located on the southside of Bovaird Drive, just west of Dixie Road, in the City of Brampton, and which had led to the death of Charles Sullivan, the Peel Regional Police charged Mukesh Sonnilal (“the defendant”) on August 22, 2012, with committing the offence of careless driving, contrary to s. 130 of the Highway Traffic Act , R.S.O. 1990, c.

H.8. [ 5 ] Moreover, t he Peel Regional Police had concluded from their investigation into the accident that the defendant had not driven with all reasonable care for the weather and road conditions at the critical time, and that he had driven his vehicle faster than it would have been reasonably appropriate or prudent to do so at the time, considering that the road had been wet from the rain that had been falling at the time or that had fallen in copious amounts minutes before the accident had occurred. [ 6 ] On the other hand, in his defence to the careless driving charge, the defendant testified that when he had been driving in the middle of the three eastbound lanes on Bovaird Drive just before the intersection at Dixie Road, the road had been dry at the critical time; that it had not been raining on Bovaird Drive; that he had been driving between 50 to 60 kilometers per hour in a posted 70 k.p.h. speed zone; that he had not been in a rush to get to work which was still located several kilometers east of the accident scene; and that when he had decided to move his vehicle from the middle lane of three lanes to the curb lane he had pressed on his brakes and at that exact moment when he had applied his brakes his vehicle suddenly and unexpectedly lost control, spun, and jumped the curb, and then travelled across a grass boulevard and then struck Charles Sullivan, who had been a pedestrian on the sidewalk on the southside of Bovaird Drive. [ 7 ] Moreover, the defendant in his closing argument contends that what had caused or made his vehicle go out of control and jump the curb had been from a mechanical defect in his vehicle that he had been unaware of or that would not be easily detected.

Specifically, the defendant submits that the licensed mechanic, who had examined and inspected the defendant’s vehicle shortly after the collision had occurred, had testified that one of the brake lines on the defendant’s vehicle had been severely corroded and that the rear brake lines had not been properly attached to his vehicle, which the defendant submits had been what had caused his brakes to fail at that critical moment.

Accordingly, the defendant contends this particular evidence clearly establishes that the defendant’s vehicle had mechanically malfunctioned and that the accident had occurred due to this mechanical failure, which had been beyond the control of the defendant. [ 8 ] In addition, the defendant submits that the prosecution has failed to lead and establish any reliable and cogent evidence that proves beyond a reasonable doubt that the defendant has committed the actus reus of the careless driving offence.

Moreover, the defendant contends that there is no evidence that the defendant had been driving his vehicle at a speed that had been too fast for the road and weather conditions at the critical time; that there is no evidence that the defendant’s driving had departed from that of an ordinary and prudent driver for the circumstances; and that there is no evidence the defendant had disregarded the safety of others using the highway at the critical time.

As such, the defendant submits that the careless driving charge should be dismissed and an acquittal be entered for the defendant. [ 9 ] In reply to the defendant’s arguments, the prosecution submits that even though Cst. Bruno Pupo, the accident and collision reconstructionist, had prepared a report about the accident in which Cst.

Pupo had concluded that the defendant’s failure to drive with due care and attention had caused his vehicle to rotate out of control, leave the road, and hit the pedestrian because the defendant had been driving his vehicle too fast for the weather and road conditions at the critical time, and in which Cst. Pupo had primarily based his conclusion on three premises: (1) that it had been raining steady with heavy rains; (2) that visibility had been poor; and (3) that some areas of the roadway had water pooling, it has been conceded by the prosecution that Cst.

Pupo’s opinion is of limited assistance, since those three premises had not been proven beyond a reasonable doubt in the prosecution’s case. In addition, the prosecution submits that despite Cst. Pupo being qualified as an expert witness on the area of accident and collision reconstruction, the prosecution nevertheless concedes that Cst.

Pupo’s opinion cannot be relied upon in assisting the determination of whether the defendant had driven with due care and attention prior to the accident occurring. [ 10 ] On the other hand, the prosecution submits that the defendant’s testimony is not reliable or credible, since the defendant’s testimony at trial contains inconsistencies and contradictions, especially when the defendant’s testimony had contradicted his prior unsworn statement that he had given to Cst.

Furlotte, who had taken the defendant’s statement on July 26, 2012, some 64 minutes after the accident had occurred and when the defendant’s memory would have been more fresh than on June 20, 2013, when he had testified at the trial. In particular, the defendant had informed Cst. Furlotte that the road where his vehicle had left the road had been wet and that it had been drizzling, while at the trial he had testified that Bovaird Drive had been dry and that it had not been raining whatsoever on Bovaird Drive.

In addition, the prosecution submits there is no conclusive evidence that the brakes on the defendant’s vehicle had been defective or that they had not been operating properly, or that the defendant’s vehicle had not been operating properly from some other mechanical defect at the time the defendant’s vehicle had spun out of control and jumped the curb.

Moreover, the prosecution contends that the defendant has failed to provide a reasonable explanation as to why his vehicle had lost control on Bovaird Drive, spun, and then struck the pedestrian who had been on the sidewalk on the southside of Bovaird Drive, to rebut an inference of negligence.

[ 11 ] Accordingly, even though the prosecution has not proven beyond a reasonable doubt that it had been raining steadily and heavily, that visibility had been poor, and that water had been pooling on the road at the critical time in the eastbound lanes of Bovaird Drive, the prosecution still submits that it can be reasonably inferred from the circumstantial evidence that has been proven beyond a reasonable doubt, that the road surface for the eastbound lanes of Bovaird Drive had still been wet, and since the defendant had not provided a reasonable explanation for why the defendant’s vehicle had lost control and went onto the sidewalk to rebut an inference of negligence, then the only reasonable inference that can be made about whether the defendant had been driving without due care and attention or without reasonable consideration for other persons using the highway is that the defendant had failed to drive as a reasonably prudent driver would have for the circumstances, since it can be reasonably inferred from the circumstantial evidence that the defendant had been driving his vehicle at a rate of speed faster than the weather and road conditions would warrant and that the defendant had not been driving at the appropriate speed for the weather and road conditions at the critical time, and which the prosecution submits is circumstantially evidenced by the amount of damage done to the defendant’s vehicle, which included a large dent in the rear driver’s side door where Charles Sullivan had come into contact with the defendant’s vehicle and the window of the rear driver’s side door being smashed out; the se vere injuries sustained by Charles Sullivan from being struck by the defendant’s vehicle ; that Charles Sullivan had been thrown 13 meters south of the sidewalk after being struck by the defendant’s vehicle; and the defendant’s vehicle rotating clockwise on the road and being able to jump the curb while the vehicle had been moving sideways, such that the defendant’s vehicle could not have been travelling at a slow speed. [ 12 ] As such, the facts at issue are whether the brakes on the defendant’s vehicle did fail suddenly and unexpectedly and had been what had caused the vehicle to rotate out of control and go over the curb at the critical time when the defendant had been driving eastbound on Bovaird Drive.

And, if the brakes had suddenly and without warning failed and had been the cause of the defendant’s vehicle spinning out of control, then the defendant may have an explanation that would rebut the inference that he had been driving without due care and attention or without reasonable consideration for others using the highway at the critical time.

However, if the brakes on the defendant’s vehicle had not been defective or inoperative at that critical moment, then the issue which has to be decided next is whether the road surface of the eastbound lanes of Bovaird Drive had been wet from rain drizzling or falling, or whether it had been wet from a previous heavy and steady rainfall, or whether it had been dry at the critical time, since the defendant had testified that it had been dry.

And, if the roads had been wet at the critical time, the issue then becomes whether the defendant had been operating or driving his vehicle at an appropriate or prudent speed on Bovaird Drive for the weather and road conditions, just before the accident had occurred. [ 13 ] Additionally, the trial of this careless driving charge had been held over two days: June 20 and September 4, 2013. In the trial, four witnesses had testified. Three had testified for the Crown, while the defendant testified in his own defence.

Moreover, a fter final submissions were completed, I reserved judgment and adjourned the matter until February 28, 2014, to render my judgment. These, therefore, are my written reasons for judgment: 2. THE CHARGE [ 14 ] Under a

Part III information sworn on August 22, 2012, the defendant in this proceeding has been charged with committing the offence of “careless driving”, contrary to s. 130 of the Highway Traffic Act , R.S.O. 1990, c. H.8 : Mukesh Sonnilal on or about the 26th day of July, 2012 at the City of Brampton in the Central West Region did commit the offence of did unlawfully operate a motor vehicle, licence number [removed for privacy reasons] on a highway, namely on Bovaird Drive, carelessly, contrary to the Highway Traffic Act,

section 130 . 3. FACTUAL BACKGROUND (

a) ADMISSIONS OR AGREED FACTS [ 15 ] For the trial, the defendant has conceded that the date, time, jurisdiction, and identity are not at issue, that the defendant had been

the only driver of the vehicle in question, and that the only issue is whether the Crown has proven the defendant has committed the offence of careless driving. In addition, the defendant admits that there is no issue with the voluntariness of the statement made by the defendant on July 26, 2012, to a Cst. Furlotte, a police officer with the Peel Regional Police, at the offices of the Major Collision Bureau located at 180 Derry Road, approximately 64 minutes after the accident had occurred. [ 16 ] Furthermore, the defendant agrees to the following facts for the trial: (

a) On Thursday July 26, 2012, at approximately 5:45 a.m., Mukesh Sonnilal, the defendant, was operating a 1997 Pontiac Bonneville, a four-door, green in colour motor vehicle bearing the Ontario licence plate [removed for privacy]. (

b) The defendant was alone in his vehicle at the time. (

c) The defendant was travelling eastbound on Bovaird Drive in the City of Brampton in the area in question just west of Dixie Road. (

d) Bovaird Drive is a six-lane roadway with three eastbound lanes being separated from the three westbound lanes by a grass median. (

e) The posted speed limit on Bovaird Drive is 70 kilometres per hour. (

f) The roads were paved asphalt with good markings and in good condition. (

g) Bovaird Drive is straight and flat and well illuminated. (

h) The collision occurred approximately 45 minutes after sunrise. (

i) Approximately 300 metres west of the traffic light controlled intersection of Bovaird Drive and Dixie Road the defendant lost control of his vehicle. The vehicle rotated clockwise and mounted the south curb. It continued rotating out of control and struck a pedestrian who was on the sidewalk. (

j) The pedestrian was Charles Joseph Sullivan. Tragically, Charles Sullivan was thrown approximately 13 metres. (

k) Charles Sullivan had injuries from being struck by the defendant’s vehicle and had died within 24 hours. (

l) No other vehicles were involved in this collision and there were no independent witnesses. (

B) ADDITIONAL BACKGROUND [ 17 ] The defendant, Mukesh Sonnilal is presently 57 years old and the maintenance supervisor at the Chrysler assembly plant located at 2250 Williams Parkway East, in the City of Brampton. Furthermore, the defendant has had a driver’s license for 38 years. On the day of the tragic accident, the defendant had been driving eastbound on Bovaird Drive on his way to work at the Chrysler assembly plant, which is located several kilometers east of the intersection of Bovaird Drive and Dixie Road. [ 18 ] Moreover, the defendant had testified that he had left his house at 5:20 a.m. that morning to go to work.

[ 19 ] The defendant also testified that his usual route to work had been to drive east on Earlsbridge Boulevard, then to drive south on McLaughlin Road North, then to drive east on Sandalwood Parkway West to Highway 410, then to drive south on Highway 410, and then to exit Highway 410 at the first ramp for Bovaird Drive, and then to drive east on Bovaird Drive to Bramalea Road, then to drive south on Bramalea Road to North Park Drive and then to exit North Park Drive and drive into the Chrysler assembly plant located at 2250 Williams Parkway East in Brampton. [ 20 ] In addition, the motor vehicle driven by the defendant was a green, four-door 1997 Pontiac Bonneville motor vehicle.

The odometer reading on the vehicle at the time of the accident was 316,974 (see Vehicle Mechanical Inspection Report, Ex. 9, p. 1). Therefore, at the time of the accident, the vehicle would have been on the road for approximately 15 years. The vehicle also showed signs of severe rust and corrosion on the rocker panels, floor, rear bumper, and on the flex part of one of the brake lines.

In addition, the rear brake lines had not been secured to the frame of the vehicle. [ 21 ] Moreover, the defendant’s vehicle had been equipped with an airbag control module, but no event had been registered on the control module although an attempt had been made to download or retrieve data or information from the control module (see Fatal Motor Vehicle Collision Report, Ex. 11, p. 9). [ 22 ] Furthermore, damage had been visible and physically present on the defendant’s vehicle.

There had been a large dent on the rear driver’s side door, the window in the rear driver’s side door had been missing, glass shards were present in the rear seat, and the driver’s side outside mirror had been broken. [ 23 ] In addition, there had been orange-coloured fatty tissue embedded in the front edge of the window frame of the rear driver’s side door. [ 24 ] The accident had occurred at approximately 5:45 a.m. on the southside of Bovaird Drive, just east of Dixie Road, in the City of Brampton. [ 25 ] After the defendant’s vehicle had spun or rotated clockwise two times, it came to rest by the sound barrier wall on the southside of Bovaird Drive, facing in an easterly direction.

The defendant, who had believed his vehicle had hit someone, then tried to exit his vehicle using the driver’s door to see if this had been the case, but the door would not open. He then had to exit through the front passenger door. When the defendant was out of his vehicle, he observed someone lying on the grass surface south of the sidewalk. The defendant testified that he had observed a male curled up, breathing, with his eyes open, but not conscious. Then, the defendant called the 9-1-1 operator indicating that he had believed he had hit someone. [ 26 ] Cst.

Aujla, a police officer with the Peel Regional Police, had responded to the radio call he had received at 5:46 a.m. about the motor vehicle and pedestrian accident on Bovaird Drive, and arrived at the scene at 5:51 a.m. Cst. Aujla also testified that when he arrived at the scene, the weather had been overcast and the temperature had been 20 degrees Celsius. In addition, Cst. Aujla testified that the road conditions at that time had been wet from a previous rainfall and that traffic had been light to moderate. However, Cst.

Aujla said that when he arrived at the scene it had not been raining and that the sun had already been out and that there had been no fog in the area. Cst. Aujla also said he had no difficulty with visibility and did not need to use his flashlight. [ 27 ] In addition, when Cst. Aujla arrived at the scene, he said he had observed a green-coloured vehicle on the grass by the sound barrier wall, facing in a northeast direction. Cst. Aujla then said he only had a short conversation with the defendant about the location of where the pedestrian had been laying on the ground. At that point, Cst.

Aujla said he attended to the pedestrian, while Cst. Furlotte had been the police officer who had actually interviewed and took a statement from the defendant at the offices of the Major Collision Bureau at 180 Derry Road in the City of Mississauga, some 64 minutes after the accident had occurred [ 28 ] Furthermore, Cst. Aujla had observed that the pedestrian, later identified as Charles Sullivan, was a white male person who had been still breathing and laying in a fetal position. Cst.

Aujla also said he had observed Charles Sullivan wearing running shoes, socks, a pair of shorts and a yellow T-shirt. [ 29 ] In addition, Charles Sullivan had sustained severe injuries from being struck by the defendant’s motor vehicle. The injuries Charles Sullivan sustained were a broken right femur and pelvis, massive head trauma, and a ruptured pupil (see Fatal Motor Vehicle Collision Report, Ex. 11, p. 7) .

[ 30 ] Furthermore, Charles Sullivan’s house is approximately 500 meters west of the location of the accident (see Fatal Motor Vehicle Collision Report, Ex. 11, p. 7) . [ 31 ] Moreover, Charles Sullivan had been struck when he had been on the sidewalk that was located south of Bovaird Drive. In addition, the force of the impact from the defendant’s motor vehicle had thrown Charles Sullivan approximately 13 meters south of the pedestrian sidewalk, where he ended up lying on the grass area north of the sound barrier wall. The defendant had also told Cst.

Furlotte on July 26, 2012, that he had observed the pedestrian going westbound on the sidewalk, either walking or running. [ 32 ] An ambulance had also attended the scene and took Charles Sullivan to the emergency room of the Brampton Civic Hospital and then later Sullivan had been transported to Sunnybrook Health Services.

Unfortunately, Charles Sullivan succumbed to his injuries and died within 24 hours of being struck by the defendant’s motor vehicle. [ 33 ] In addition, Bovaird Drive East is a major road in Brampton and is a paved asphalt roadway that is comprised of six lanes, in which three are westbound lanes and three are eastbound lanes. The eastbound and westbound lanes are also separated by a grass median.

At the location where the accident occurred on Bovaird Drive East, the road is straight and flat. [ 34 ] Furthermore, the defendant had testified that just before the accident occurred he had been travelling in the middle lane of the three eastbound lanes of Bovaird Drive and that he had been changing lanes from the middle lane to the curb lane, so he could make a right turn on Bramalea Road, which is several intersections east of Dixie Road.

Furthermore, the defendant had testified that he had pressed on his brakes while he changed lanes and that his vehicle had suddenly and unexpectedly lost control and went over the curb and hit the pedestrian, who had been on the sidewalk. [ 35 ] In addition, the defendant’s motor vehicle had travelled from the middle lane of the three eastbound lanes of Bovaird Drive across the curb lane, then across a grass boulevard, then across the sidewalk, then across another grass area before it came to rest just north of the sound barrier wall. [ 36 ] Furthermore, Cst.

Bruno Pupo, who was qualified as an expert witness in the area of collision and accident reconstruction and who had testified at the trial, had been coincidentally travelling to work and driving westbound on Bovaird Drive at approximately 5:30 a.m. In addition, Cst.

Pupo testified that at the time he had passed the spot where the accident would later occur on the eastbound side of Bovaird Drive, it had been raining steadily and heavily, so that the water had been puddling on the road and that the visibility had been reduced. [ 37 ] In addition, the defendant had testified that during his journey that morning on July 26, 2012, from his home to the location where the accident had occurred on the southside of Bovaird Drive, just east of Dixie Road, he had gotten off Highway 410 at the Bovaird Drive exit and then had to stop for three red lights, in which he said that his brakes had been operating properly at those three stops. [ 38 ] Furthermore, after the accident, the defendant’s motor vehicle had been taken to the police garage, where Chris DiMartino, a licensed mechanic employed by the Peel Regional Police, had examined and inspected the defendant’s vehicle.

DiMartino had testified that he had noticed corrosion on one of the brake lines, which he noticed had been larger in diameter than the other brake lines. However, DiMartino said he could not go inside the vehicle to test the brakes or apply the brakes to see if they were functioning properly because there had been biohazards on or in the vehicle and he did not have the proper clothing to wear that would allow him to enter the defendant’s vehicle to test the brakes.

He also said he did not drive or do a road test of the defendant’s vehicle to see if the brakes had functioned or worked properly for the same reason that there had been the presence of biohazard matter on or in the vehicle. [ 39 ] In addition, when DiMartino had yanked on the brake line that had been corroded, which carries brake or the hydraulic fluid that is used to power the brakes when the brakes are applied, the brake line had fallen apart.

And, although DiMartino could not determine whether the brakes had been still functioning properly after the accident, his examination of the master cylinder and brake fluid reservoir indicated that the master cylinder which pushes out the brake or hydraulic fluid through the brakes lines had been functioning properly and that the reservoir contained sufficient brake or hydraulic fluid. In addition, his examination of the steering and ball joints also showed them to be functioning properly.

Furthermore, the brake pads, brake drums, and brake calipers when measured by DiMartino had fallen within the permitted manufacturer’s specifications. [ 40 ] Moreover, the weather conditions as indicated in the Hourly Data Report for July 26, 2012, recorded by Environment Canada at

Toronto Lester B. Pearson International Airport that had been entered as Ex. 14, indicated that at 4:00 a.m. the weather was “rain, fog”, the visibility in kilometers was “8.0” kms., and the temperature was “19.2” degrees Celsius; while at 5:00 a.m. it indicated the weather was “fog”, the visibility in kilometers was “8.0” kms., and the temperature was “19.7” degrees Celsius; while at 6:00 a.m. it indicated the weather was “rain showers”, the visibility in kilometers was “19.3” kms. and the temperature was “21.4” degrees Celsius.

However, this report also stated that “All times are specified in Local Standard Time (LST) and to “Add 1 hour to adjust for Daylight Saving Time where and when it is observed”. Therefore, the accident had occurred between the local standard times for the 4:00 a.m. data and the 5:00 a.m. data recorded in this report for July 26, 2012.

Moreover, on July 26, 2012, Daylight Saving Time would have been in effect, [ 41 ] In addition, at p. 6 of the Fatal Motor Vehicle Collision Report entered as Ex. 11, sunrise for July 26, 2012, was indicated to be at 5:00 a.m., which had been obtained from the National Research Council Canada sunrise/sunset calculator. [ 42 ] Furthermore, in the defendant’s statement that the defendant had given to Cst. Furlotte on July 26, 2012, approximately 64 minutes after the accident had occurred, the defendant did not inform Cst.

Furlotte there had been any problem with his brakes, only that the vehicle suddenly and unexpectedly lost control when he applied the brakes while he had been changing lanes from the middle lane to the curb lane. (

c) SUMMARY OF TESTIMONY [ 43 ] Four witnesses testified during the trial. The following is a

summary of their testimony:

(1) Cst. PAUL AUJLA (the police officer who had arrived first at the accident scene) [ 44 ] Cst. Paul Aujla testified he is employed with the Peel Regional Police. He also said that on Thursday July 26, 2012, at 5:46 a.m., he had received a radio call in respect to a pedestrian that had been struck in the area of Bovaird Drive and Dixie Road in the City of Brampton. In addition, he said he had received information that someone had called, who had believed that they had hit a person, but could not see where that person had gone. [ 45 ] In addition, Cst.

Aujla said he had arrived at 5:51 a.m. in the area of where the accident had occurred, which had been in the eastbound traffic of Bovaird Drive, west of Dixie Road. [ 46 ] Furthermore, Cst. Aujla described Bovaird Drive as being a highway, with three lanes going eastbound and three lanes going westbound that is divided by a concrete median. [ 47 ] Moreover, Cst. Aujla said the area is a posted 70 kilometers per hour zone. [ 48 ] Cst. Aujla also said that when he had arrived at the scene he had been alerted to a green Pontiac Bonneville vehicle that was on the southside of Bovaird Drive, south of the curb lane.

He then said he had parked his cruiser right beside the green Pontiac motor vehicle, but in the curb lane. In addition he described the area of the accident as being south of the three lanes of traffic where there had been a small patch of grass that was a boulevard, then a pathway or sidewalk that was followed by a further patch of grass, and then a retaining sound barrier wall. [ 49 ] Furthermore, Cst. Aujla said he had observed the green four-door vehicle on the south side of Bovaird Drive and on the patch of grass closest to the sound barrier retaining wall.

He also said this vehicle had been facing northeast. He also said he had observed a gentleman standing outside of that vehicle. He then said he had a very brief conversation with that person. [ 50 ] Moreover, as part of his narrative and not for the truth of its contents, Cst. Aujla said he had asked the person he saw standing outside of the vehicle, "Did you hit someone?" In replied to the query, the person said, “Yes”. Cst. Aujla then asked, “Where is he?" The person then pointed to an area that was just west of where the vehicle had been positioned. Cst.

Aujla then said he had observed by the retaining wall a white male, who was approximately between the ages of 55 and 65, with a thin build, grey and white hair, and a goatee. Also, Cst. Aujla said this white male was wearing running shoes, socks, a pair of shorts, and a yellow t-shirt that was partially

off. Moreover, Cst. Aujla said the male’s left arm had been outside of the t-shirt and the t-shirt had still been draped on part of his body. Cst. Aujla also said the male person was in a curled position that was almost a fetal position. In addition, Cst. Aujla said the male person’s head had been pointing westbound while his feet were pointing eastbound. Furthermore, Cst. Aujla said the male person was still breathing, his eyes had been open, but he had been completely unresponsive to any verbal commands or light physical touch. Also, Cst.

Aujla said that since he had concerns that other parties may have been also injured from the car accident, he said he began a quick search of the surrounding area, including underneath the green four-door vehicle. [ 51 ] Cst. Aujla also said he noted the four-door green-coloured vehicle was a 1997 Pontiac Bonneville, with Ontario licence plate number [removed for privacy reasons]. He also said the vehicle had VIN number lG2HX52K8VH272531. He also said the vehicle was registered to Mukesh Sonnilal. [ 52 ] Furthermore, in regards to damage to the green Pontiac motor vehicle, Cst.

Aujla said he observed that it had a broken rear left passenger window, a dent on the rear left door, and that there had been body matter or body fluids on the B-pillar, which is the pillar that separates the driver's door and the rear left passenger door. [ 53 ] In addition, shortly after he had arrived, Cst. Aujla said paramedics and Brampton Fire arrived. He also said they had immediately looked after the gentleman that had been lying on the ground.

In addition, Aujla said that he had been advised that the injured man was going to be rushed to Brampton Civic Hospital and accompanied by other officers. [ 54 ] Cst. Aujla also said at that point he began to preserve the scene for other officers and had placed emergency blankets over the area where the gentleman had been laying on the ground. He also said he had placed two emergency blankets at the scene of the accident.

In addition, he said he had placed one of the tarps on top of where the gentleman had been laying for continuity of where he had been, as well as to protect that particular area from the environment. [ 55 ] In addition, Cst. Aujla said he had made observations of the traffic, road, and weather conditions. He said the temperature had been about 20 degrees Celsius and the weather had been overcast, but that there had been no fog. In addition, he said the road had been wet from a previous rainfall and that traffic at that time had been light to moderate. [ 56 ] Furthermore, Cst.

Aujla said that in driving to the scene he had first travelled northbound on Naismith Street, which is the intersection just west of where the accident had taken place, and then eastbound on Bovaird. He further said that he had no difficulty with the roads while he had been travelling eastbound on Bovaird. In addition, he said the road had been wet from a previous rainfall, but it had been perfectly drivable.

Moreover, he said that he had been trying to get to the scene of the accident as fast as he possibly could and said he did not have any issues in respect to braking or accelerating or making any maneuvers whatsoever. [ 57 ] However, Cst. Aujla said he does not recall what speed he had been travelling at. In addition, he said there is a bit of a distance between the west intersection, which is Bovaird Drive and Naismith Street, to the scene of the accident, and that with any pedestrian accident, he said he would have been trying to get there as soon as he possibly could. [ 58 ] Also, when Cst.

Aujla had arrived at the scene he said the sun had already been out and that he had been able to see everything clearly and did not need his flashlight. [ 59 ] In addition, Cst. Aujla said that when the second officer arrived on scene, Cst. Aujla had made certain that the second officer stayed with the driver of the green Pontiac motor vehicle that had pointed out to Cst. Aujla where the injured male had been laying. [ 60 ] Furthermore, Cst. Aujla said he was later informed that the driver of the green Pontiac motor vehicle had been the registered owner of the vehicle with the name of Mukesh Sonnilal.

(2) CHRIS DIMARTINO (licensed mechanic employed by the Peel Regional Police who had examined the defendant’s vehicle after the accident) [ 61 ] Chris DiMartino testified that he is currently employed by Peel Regional Police as a licensed mechanic. He also said he holds a

310S certificate, which is a mechanic’s license, and that he received this license in 1998. He also said he started working for the Peel Regional Police in 1999. [ 62 ] To obtain his license, DiMartino said he had to take forty weeks of classes and training at Mohawk College, do 6000 hours as an apprentice mechanic, and then write the licensing exam. [ 63 ] In addition, DiMartino said his duties for the Peel Regional Police is to service, maintain and repair police vehicles and do all mechanicals that he is assigned to do, which includes servicing, brakes, re-hauls, transmissions, tune-ups, and brake inspections.

He also said that his duties include looking at motor vehicles that are brought in because of an accident and part of an investigation.

Furthermore, he said that there are three of them that will do this specific function. [ 64 ] Moreover, for an investigation involving an accident, DiMartino said his duties include doing a vehicle inspection as if he were doing a safety inspection on a purchased vehicle, which includes making sure that all the lights work, all the seatbelts work, the brakes are intact, and that everything is within the vehicle’s manufacturer's specifications, and that tires are within specifications.

Moreover, he said that anything that has to do with a vehicle's safety through the Ministry of Transportation is what he inspects on the vehicle. [ 65 ] In addition, DiMartino said he has done approximately 70 to 80 inspections of vehicles involved in an accident as part of an investigation.

He also said that as part of his inspection he completes or fills out a Vehicle Mechanical Inspection Report. [ 66 ] Moreover, DiMartino said that on July 26, 2012, he had inspected the 1997 Pontiac Bonneville motor vehicle that is the vehicle at issue in this proceeding, which he assumes had taken roughly two to three hours to complete. [ 67 ] DiMartino also said that the first thing he did with the inspection of the Pontiac Bonneville motor vehicle had been to look at the damage on the vehicle and then make a note of where the damage had been on the vehicle.

Then he said he tries to determine whether the damage on the vehicle had been from the collision or had it been there previously and makes a note of that as well. From there, he said he then inspects all the tires by inspecting the rims, the tread depth, the tire pressures, the make, and the age of the tire if possible. Then he said he removes the tires and rims and inspects the brake rotors, brake drums, wheel cylinders, and calipers. From there, he said he then measures the brake pads and shoes, and then tries to inspect the master cylinder to see if there had been fluid in it.

Then he said he inspects the brake lines, but that in some vehicles he cannot inspect the vehicle to determine whether the brakes are functioning when there is a biohazard in the vehicle.

He further said that he would not enter the vehicle if there were a biohazard in the vehicle. [ 68 ] In explaining why he did not actually drive the defendant’s vehicle during his examination, DiMartino said that whenever they get a vehicle and there's biohazard in the vehicle, that can be any bodily fluid, he will not enter the vehicle because they do not have the proper protection to use in that vehicle. [ 69 ] Moreover, concerning the presence of a biohazard on or in the 1997 Pontiac Bonneville motor vehicle, DiMartino said he had not entered the vehicle because there had been a biohazard on the vehicle.

However, he said that he had been able to do an inspection of the vehicle’s brakes, the brake lines, the master cylinder, the calipers, and the wheel cylinders, which had all passed his inspection. He also said he then inspected the steering, the ball joints, tie rod ends, the shocks, and the springs.

With regards to the steering, he said he had to make sure all the linkages were correct and that the power steering rack and the pump were working, as well as making sure there had been fluid within the reservoirs. [ 70 ] In addition, DiMartino said he had checked the springs and shocks of the vehicle to make sure everything had been intact and not damaged. Then he said he inspected the frame and the rest of the suspension for the vehicle, which includes inspecting the control arms and the rear suspension, which he said depends on whether the vehicle had control arms or an axle.

He also said he would inspect for excessive corrosion at that point. Moreover, he said he would also inspect the exhaust system from the front to the rear to see whether it had any leaks. Then he would inspect all the seats, the windows, the horn, and the wipers to make sure they were all functioning. He also said he would then inspect the air bags to determine if they had been deployed. [ 71 ] However, for what he actually inspected on the defendant’s Pontiac vehicle, DiMartino said he observed damage on the left rear door, which he assumed had occurred from the collision.

He also said the left rear door did not open because of the damage. He then said that the seats had passed and were all intact and functioning. He also said the mirror on the left side had been damaged from the collision. In addition, he said the horn, windshield wipers, and the windshield defroster and the rear defroster had passed and were functioning. Moreover, he said the windshield washer fluid dispenser had also been functioning.

[ 72 ] Then DiMartino said he inspected the tires on the vehicle and said the four tires were all of the same make and size. In addition, he said the tread depth for all the tires had been within the manufacturer's and Ministry of Transportation (M.T.O.) specifications. Moreover, he said the actual air pressure within all four tires were relatively okay, except for the right front tire which had been down to 14 p.s.i., which he said could have possibly been the result of the vehicle mounting the curb.

In addition, he said the front rims were both damaged from the collision. [ 73 ] DiMartino then said he inspected the vehicle’s brakes, which were power brakes with ABS and four channels. He also said that there had been four ABS connections on the wheels. However, he reiterated that he did not actually drive the vehicle as part of his inspection because of the biohazard in the vehicle, so he said that he could only assume that the vehicle’s brakes worked. On the other hand, he said that the parking brakes on the vehicle had been actually applied and it had passed.

Furthermore, he said he measured the service disks or front rotors for the brake system and said the left front rotor had been 31.87 millimeters, which he said had been fine for use and within the manufacturer’s specifications. In addition, he said the discard or throwaway thickness for the front rotors would be 30.71 millimeters. As for the front right rotor, he said it had measured 31.51 millimeters, which he said is also within manufacturer's specifications.

Furthermore, he said that the front rotors do about 70 percent of the braking. [ 74 ] In addition, DiMartino said that for the rear brakes the vehicle had drums, so that an inside micrometer had been used to measure the drums. For the left rear or driver’s side rear drum, he said it had measured 225.71 millimeters and had been in accordance with the manufacturer's specifications. He also said the discard measurement would be 226.28 millimeters.

Moreover, for the right rear or rear passenger-side drum, he said it had measured 225.81 millimeters, which also had been within the manufacturer's specifications. [ 75 ] After examining the rear drums, DiMartino said he inspected the linings, which are the brake shoes or pads, and the actual friction material that helps the rotor or drum stop. He then said that for the driver’s side front wheel, the linings on that front pad measured 9.5 millimeters, which he said had been within the manufacturer's specifications. Moreover, he said the discard value for the front brake pads would be 0.79 millimeters.

As for the front passenger-side brake pad, he said it had measured 9.1 millimeters, which had been within the manufacturer's specifications. [ 76 ] For the rear driver’s side drum assembly, DiMartino said the lining on that brake shoe had measured 1.5 millimeters, which had been within manufacturer's specifications. Furthermore, he said the discard value of a shoe for the rear brake assembly is 0.79 millimeters, and whether it had been bonded or riveted would determine where the measurement is taken.

As for the rear passenger-side drum assembly, he said it had measured it 1.5 millimeters and had been within the manufacturer's specifications. He also explained that with respect to the manufacturer's specifications that those specifications are minimal requirements. [ 77 ] In addition, DiMartino said he inspected the calipers to make sure that they would return all the way forward or all the way pushed back in. He then explained that a caliper is a piston within a unit that is hydraulically pushing against the pads to make the rotor stop.

He also said that if the caliper seizes then it would keep pushing out and not return. As for the calipers on the defendant’s vehicle, he said the two front calipers and both front pads had returned back to where they were, which would indicate that they had not seized. [ 78 ] Furthermore, for the rear brakes, DiMartino said the wheel cylinders, which work the brake shoes and are like the front calipers, had also passed and returned to normal, which indicated to DiMartino that they had not seized. He also said the brake fluid or hydraulic fluid had not been leaking.

He further explained that if the brake fluid had been leaking then there would be a lesser brake function, and that if the linings become wet with brake fluid then this would also reduce the friction within the unit. He also said that he did not notice any fluid and that it had been dry. [ 79 ] However, DiMartino did mention that he had physically grabbed the front driver’s side flex line, which he said is a braided line covered in rubber that connects the caliper to the steel line of the vehicle, which creates some movement and allows for steering of the vehicle.

He also said that this rubber line would constantly move with the tire. Furthermore, he said that when he grabbed that particular flex line to inspect, he had noticed that it had been thicker than all the other flex lines, and that soon as he had grabbed it, the line had fallen right off because of the corrosion. Moreover, he said that he could not opine whether the operation of the vehicle or braking would be affected by what he had observed with the corroded flex line that fell right off after he had yanked on it, but did comment that there had been no leak prior to him touching the flex line.

He further explained that the flex line would carry or allow brake or hydraulic fluid to go from the steel line from a fixed portion of the vehicle to the moving caliper side of the brake assembly and that each flex line is associated with a specific wheel or specific brake if each wheel has independent suspension, which had been the case with the defendant’s vehicle. [ 80 ] DiMartino also said that although there had been no leak, there had been a lot of swelling of the rubber line itself, so he knew that there had been corrosion underneath that rubber.

Moreover, he said that the swelling would not prevent the hydraulic fluid from reaching

the brake itself, since the swelling is not inwards but outwards from the fluid. [ 81 ] In addition, DiMartino said that when somebody had installed new brake lines from the front to the rear of the vehicle, the brake lines had not been properly secured to the vehicle, since there had been no clips or tie-downs used.

However, he also said that since he could not actually drive the vehicle, he could not determine whether the brake lines were installed correctly, nor could he determine whether there had been air in the brake lines. [ 82 ] DiMartino also said all the rocker panels had been very corroded. [ 83 ] Furthermore, DiMartino said he inspected the power steering and determined that there had been fluid in the reservoir. He also said he had assumed that the power steering pump had been working, since he had not been able to start the vehicle.

He also said he had inspected the ball joints and had noticed that both of them were nice and tight, which meant they had passed his inspection. Moreover, he said the tie rods had been nice and tight and that they had also passed. As for the shocks and springs, he said that he did not see any obvious leaks or breakage, so they also had passed his inspection.

Furthermore, in respect to the steering, he said he did not see anything that gave him any concern and that it had passed according to manufacturer's specifications. [ 84 ] In addition, DiMartino said he had inspected the frame and the body of the vehicle, which he said had been a unibody design. He also said he had noted that the bumpers had been almost completely rotted off due to corrosion. Furthermore, he said the floor had corrosion on it and is pretty sure that at some point there would be holes going right through the floor.

Also, when he inspected the sub- frame, which actually holds the motor and transmission in, he said he had noticed the bolts, which have huge washers on them and which hold the entire unit up, had been rotted right off. Furthermore, although there had been a lot of corrosion on the defendant’s vehicle he opined that the vehicle could still be driven and that for the items he had inspected on the vehicle he could not find that any of those items would have prevented the car from being operated or driven. [ 85 ] Moreover, DiMartino confirmed that the brake lines are the pipes that carry brake fluid.

He also said that brake fluid travels from the master cylinder to the brake lines under pressure, which activates the piston in the calipers and wheel cylinders. Furthermore, he confirmed that in respect to the calipers and wheel cylinders, there is a piston that pushes the brake pads or brake shoes against the surface of the rotor or drum, which slows down and stops the vehicle. [ 86 ] Furthermore, DiMartino said that all the brake lines he had inspected were steel lines.

In addition, he said that everything that leaves the master cylinder are steel lines, but once they reach the point where they cannot be steel anymore because the wheels have to pivot or function through the suspension, the line then becomes a flex line that is a braided rubber hose. He also explained that the rubber hose is a braided steel line, which goes to the calipers or the wheel cylinders. [ 87 ] DiMartino also said depending on the amount of corrosion there is in a brake line, especially when it is perforated, then the line will lose pressure.

He also said he had noticed that the rear brake lines had been replaced, but the front ones had not been and were somewhat corroded, but had no perforations. [ 88 ] Furthermore, DiMartino said the rear brakes lines had not been secured to the body of the vehicle properly. He also said that if the brake lines had rubbed up against other material and parts of the vehicle, then this rubbing could cause perforations in the brake lines.

He also acknowledged that the maintenance of these brake lines would be critical to a vehicle. [ 89 ] In addition, DiMartino said that when a brake pedal is pressed on, the master cylinder, which is a low piston, then pushes on the fluid itself and the front brake lines will receive the maximum pressure. In addition, he said the rear brakes would have a proportion valve, which actually cuts off about 70 percent, depending on the manufacturer.

He also said that it the rear brakes receive more pressure than the front brakes, a driver would lose control of the vehicle. [ 90 ] Furthermore, DiMartino said that once the brake pedal is pressed in the car by the driver, it operates the master cylinder, and in the master cylinder there are pistons that work and then sends the fluid to the brake lines.

In addition, he said that the master cylinder had passed physical inspection, but he reiterated that he did not actually get in the vehicle and press the brake pedal to see if the brakes were functioning. [ 91 ] In addition, DiMartino said that at no point in time did he enter inside the vehicle, nor did he drive the vehicle, nor did he inspect

the brake pedal inside the car, nor did he see whether the brake pedal had been working properly or inspect for its free movement inside the vehicle. [ 92 ] Furthermore, DiMartino explained that if there had been a problem inside with the brake pedal, concerning its movement, and it had not been free or it had been stuck, then the master cylinder would not operate. [ 93 ] In addition, DiMartino identified the flex line in the third photograph (Ex. 12) and said that the flex line would not have passed the Ministry of Transportation safety requirements.

He also said the expanded material visible on the flex brake line shown in the photograph is corrosion.

Moreover, he said that corrosion had also been visible on the part of the brake line where it attaches to the nipple. [ 94 ] DiMartino also identified in two additional photographs that the white lines in the photograph are the brake lines that go from the proportion valve all the way to the rear of the vehicle and that their condition had been good and that it had been either salt or dirt that is visible on those lines and not corrosion. [ 95 ] Furthermore, DiMartino did identify that on two more photographs of the actual sub-frame that hold the vehicle's motor and transmission intact, that those bolts should have had a big washer and rubber bushing, which holds the sub-frame intact to the vehicle, and that if the washer is lost then the bolt would not hold and the sub-frame would fall out.

He then confirmed that the steel washers that were supposed to be there were not there and had corroded right off. [ 96 ] In addition, DiMartino said that as he could not enter the defendant’s vehicle, he could only inspect the components of the steering on the exterior of the vehicle, in the engine compartment, and from underneath the vehicle. He also said that he could not advise on the condition of the steering wheel itself. [ 97 ] Furthermore, because of the amount of the corrosion that had been visible on the defendant’s vehicle, DiMartino said the vehicle would not have been safe to operate.

He also explained that anything could happen when a vehicle is so corroded like the defendant’s vehicle, including parts of the vehicle falling off, such as suspension components falling off, that the sub-frame could drop out, and that the driver could lose control of the vehicle because the sub-frame not only holds the engine and transmission, it also holds the steering components to the front end.

In addition, he said that if there had been large holes in a vehicle caused by corrosion, then exhaust fumes and carbon dioxide could enter the vehicle and make the driver or other persons inside the vehicle nauseous, and could cause them to pass out. [ 98 ] DiMartino also said the rubber component that is part of the flex line that is used to transfer hydraulic or brake fluid from the steel brake line to the caliper or wheel cylinder of the vehicle permits flexibility to allow the steering or the suspension of the vehicle to operate. [ 99 ] Moreover, DiMartino said that when he had touched the flex line and it had fallen off, he said that it had not been leaking at the time.

In addition, he said there had been no fluid leaking from the flex line until he had actually touched the flex line, which had been when he had grabbed it and gave it a hard yank. [ 100 ] In addition, DiMartino said that if the brake line is not properly attached, then in some cases where the brake pedal is pressed hard, then it could actually pop off. However, for the defendant’s vehicle, he said that this had not happened.

Also, he said that when he inspects the flex brake lines, he physically grabs them and gives them a good shake, and if they stay intact, they are good and if they fall off in his hand, then they obviously fail. [ 101 ] Furthermore, DiMartino said the shoe area of the braking system had not been rusted. [ 102 ] DiMartino also said that he could not say for 100 percent that the brakes were working properly because he had never driven the defendant’s vehicle. He also said he had never recorded in his report that the brakes had been working properly and that all he had recorded had been the measurements he had taken.

[ 103 ] In addition, DiMartino said the defendant’s vehicle would have not met the safety standard as required by the Ministry of Transport, since it had been in very bad shape. [ 104 ] Moreover, DiMartino said he did not discuss his report with any police officer, including Cst. Pupo. [ 105 ] DiMartino also said that problems with the brake pedal and master cylinder could suddenly change, and a master cylinder could fail all of a sudden, which could be caused by the lack of service or lack of fluid, since everything has a wear and tear time.

However, he said he did not notice a lack of fluid and when he had inspected the master cylinder, it had been full. He also said he had observed that the brake pedal actually had the rubber pad on it, but that was all he had been able to inspect. [ 106 ] Furthermore, DiMartino explained that when he had given the flex line a good yank, it had come off with no problem. [ 107 ] In addition, in the third photograph of the flex line, DiMartino said that the corrosion that had been visible on the outside of the flex line would not have prevented fluid from actually reaching the front brake itself.

He further said the corrosion on the flex line had started from the outside and had been working its way in, but the corrosion would have no impact on the functioning of the flex line itself. [ 108 ] Moreover, DiMartino said that rust associated safety problems to a vehicle can sometimes be noticeable by a layperson, but many times the problem is hidden underneath the vehicle. In addition, he said that even some of the moldings on the vehicle are plastic, but that the metal underneath it could be corroded.

He also said that the corrosion had been so bad that someone could have put their fist right through the rocker panels. [ 109 ] DiMartino also said that despite the potential risks with the rust occurring on the vehicle, and that the vehicle had been in such bad shape in regards to the amount of rust, he did say that the bottom had not fallen out. However, he could not say if carbon monoxide had been entering the vehicle.

(3) Constable Pupo (the accident reconstructionist who had been qualified in a voir dire to testify as an expert in the area of collision investigation and reconstruction) [ 110 ] Cst. Bruno Pupo testified he is currently employed by Peel Regional Police and has been employed with them for approximately 16 years. He also said he had transferred to the Major Collision Bureau in the Fall of 2008 and has served in that unit since that time. Furthermore, after a voir dire had been held to determine whether Cst.

Pupo should be qualified as expert witness, it was determined, based on his training, education, and experience, that Cst. Pupo is qualified to testify as an expert witness in the area of motor vehicle collision and accident reconstruction. [ 111 ] Furthermore, Cst. Pupo said his duties in the Major Collision Bureau included responding to serious collisions that occur within the region, which includes both Brampton and Mississauga. In addition, he said that his unit is usually dispatched to attend and investigate collisions that involve life threatening injuries or fatalities.

He also said that their main role is to take charge of the investigation and gather evidence at the scene, and then interpret the evidence as best as they can to determine what had occurred during the collision and to lay appropriate charges where necessary. Moreover, he said he has attended or been involved in the investigation of approximately 250 collisions and has personally prepared six accident reconstruction reports.

He also said that he is presently the officer in charge in the ongoing investigation of 12 fatalities. [ 112 ] Moreover, in the Fatality Motor Vehicle Collision Report that he authored and dated on August 26, 2012 (Ex. 11), which is evidence that is only admitted for weight, Cst. Pupo opined that the defendant had not operated his motor vehicle with the appropriate level of care and attention for the weather and road collisions at the time of the collision, which had consisted of wet roads caused by heavy rains, poor visibility, and water pooling on the roadway. [ 113 ] Furthermore, Cst.

Pupo had said that the evidence of the weather and road conditions in his report had been based on his own personal observations of the roadway approximately 15 minutes before the accident would occur, when he himself had driven his own vehicle westbound on Bovaird Drive, which is in the opposite direction of where the location of the accident would occur on eastbound Bovaird Drive, just west of Dixie Road. Moreover, he said that when he had been opposite the location of where the accident would occur it had been raining severely, the visibility was poor, and the roads were pooling with water.

However, he did not have an

explanation as to why he had not identified or attributed the source of the severe rainfall, poor visibility, and water pooling on Bovaird Drive minutes before the accident would occur, as his own personal observations in the Fatality Motor Vehicle Collision Report. [ 114 ] In addition, Cst. Pupo explained that since he resides in the municipality of Vaughan and since he cannot afford taking Highway 407 every day, he drives to work using a route consisting of Rutherford Road in the Region of Vaughan, which upon entering the Region of Peel becomes Bovaird Drive.

Moreover, he said that on the day of the accident involving the defendant, he had personally driven on Bovaird Drive at 5:30 a.m. that morning on his way to work. He further said he had driven on Bovaird Drive towards Highway 410, where he then went southbound on Highway 410, and then got off on Derry Road, and then drove to his office located at 180 Derry Road. He also said he had to reduce his speed that morning because it had been raining heavily, the visibility had been poor, and there had been pooling of water on Bovaird Drive.

In addition, he said he did not drive the same path that the defendant had driven that morning, but had driven on Bovaird Drive in the opposite direction. [ 115 ] Cst. Pupo also said that as soon as he had walked into their unit’s office at 180 Derry Road in Mississauga, the time had been seven o'clock in the morning and he had already changed into uniform. He further said that he had received a phone call in the office from communications indicating that they had to attend a motor vehicle collision on Bovaird Drive.

He said he then proceeded to attend the location on Bovaird Drive just west of Dixie Road in the City of Brampton. In addition, he said he had arrived at the location of the collision at 7:33 a.m. on Thursday, July 26, 2012. [ 116 ] Furthermore, Cst. Pupo said he had been quickly briefed by the Sergeant on the scene and had been advised that the pedestrian had been transferred to a local hospital and that the driver involved had been taken to 21 Division. He then said he had noticed a vehicle that had been on the grass in an area south of Bovaird Drive.

He also described the vehicle as a four-door 1997 Pontiac Bonneville vehicle. He said the area where the collision had occurred had been off the roadway on the southside of Bovaird Drive, west of Dixie Road. [ 117 ] In addition, Cst. Pupo said Bovaird Drive is a six-lane road and that there is a physical median that separates the three eastbound lanes from the three westbound lanes. He also said the roadway had been a very well-worn asphalt surface. Moreover, he said the posted speed limit for that location is 70 kilometers per hour. [ 118 ] Cst.

Pupo also said the vehicle had been on the boulevard facing in the eastbound direction. In addition, he said there had been four distinct track marks or tire marks leading from the vehicle and that went towards the roadway. He said he had identified those tire marks with coloured cones he and another officer had placed on the ground. He also said he did have the opportunity to examine the tire marks on the roadway. [ 119 ] Moreover, Cst. Pupo said it had not been raining at the time. However, he said the roads were wet, but that it had stopped raining. He also said it had been overcast.

Furthermore, he said he did not observe any pooling of water, but that the roads had been just wet from the rain, but there had been no visible pooling of water whatsoever at the time. In addition, Cst. Pupo said he had no difficulty navigating or maneuvering his police vehicle on the wet roads. [ 120 ] Cst. Pupo also said that in the area where the vehicle had been sitting, there is a boulevard, a sidewalk, a grassy median area, and a sound barrier wall that protects the residential area from the sound of the roadway.

Furthermore, he said the location of the accident had been in a residential area where it is all residential on both the north and southside of Bovaird Drive. Moreover, he said the cement sound barrier wall had been just behind the vehicle. In addition, he said he had observed a small pool of blood within the bushes. [ 121 ] Furthermore, Cst. Pupo said he had observed that the vehicle had been damaged only on one side, which had been the driver’s side of the vehicle. He also said the damage had been in the area of the B-pillar towards the rear door and that the window in the door had been shattered.

In addition, on the actual B-pillar of the car he said there had been some fatty tissue that had been embedded inside the frame of the glass of the window. Furthermore, he said the glass window had been shattered by the impact and glass had been spread throughout the seats inside the vehicle. He also said there had been heavy mud and grass on the tires and that one side of the tires had been damaged. In particular, he said the rim had been damaged by what appeared to be a big impact. Moreover, he said he had noticed there had been an indent in the actual cement curb itself. [ 122 ] Cst.

Pupo also said that one of their investigative tools is to photograph and image the immediate collision area. He further said they have forensic identification officers that come out to the scene who usually mark up the tire marks. However, in this case, he said he had been the one who had marked up the tire marks, since some of the evidence unfortunately is short-lived and that tire marks could disappear because of environmental conditions. As such, he said that immediately upon his arrival, coloured cones had been placed by him on the surface to mark up the location of the tire marks.

And, in this case he said the tire marks had been consistent and had gone in

the direction of the vehicle. [ 123 ] In addition, Cst. Pupo said that on his arrival the tire marks had been visible from the roadway onto the curb and immediate grass, and then they had crossed over onto the pedestrian sidewalk and continued onto the grass boulevard, and finally they ended up at the parked vehicle. Moreover, he said there had been a yellow tarp placed at the location of the final resting position of the pedestrian that had been struck by the vehicle, which is approximately 15 feet behind the vehicle.

He also said he did not personally see the victim, although he had observed the presence of blood at the spot where the individual had been picked up by emergency personnel. [ 124 ] Moreover, in identifying the contents of a photograph marked as #65 (Ex. 12), Pupo said the photograph had been of Bovaird Drive that shows three eastbound lanes. He also said there is a 70 kilometers per hour maximum speed limit sign that is visible on one of the pillars on the right-hand side of the photograph.

In addition, he said there are visible in the photograph four different colours of cones that consist of white, green, yellow and blue cones, which had been placed by him on the roadway and that run from the center lane of the three eastbound lanes and heads in a southerly direction on the road, then onto the curb, then across the sidewalk, and then stopping on the grass area.

He also said that the green cones represented the front passenger-side tire of the vehicle; the white cones represented the front driver’s side tire of the vehicle; the yellow cones represented the rear passenger-side tire of the vehicle; and the blue cones represented the right driver’s side tire of the vehicle. [ 125 ] In addition, Pupo said that the tire marks are from three or four tires and that once they arrive near the area of the sidewalk, the tire marks cross over one another, which indicates at that point the vehicle had entered into a spin.

In addition, he said the tire marks indicate that the vehicle had been spinning clockwise and that the tire marks cross over e

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