R. v. Scetto, 2013 ONCJ 236

Citation: R. v. Scetto , 2013 ONCJ 236 IN THE MATTER OF the Highway Traffic Act, R.S.O. 1990, c. H.8 Between Her Majesty The Queen prosecutor and Benito Scetto defendant Ontario Court of Justice Brampton, Ontario Quon J. P. Reasons for Judgment Charge: s. 144(18) H.T.A. – “red light – fail to stop”. Trial held: October 31, November 1, 2012, and March 1, 2013. Judgment released: May 3, 2013.

Counsel: B. Moodie, assistant Crown attorney J. Bonin, legal representative for the defendant Cases Considered or Referred To: Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). Phillips et al. v. Ford Motor Co. of Canada Ltd. et al., (ON CA), [1971] 2 O.R. 637 (O.C.A.), per Mackay,Schroeder,Kelly, Evans and Brooke, JJ.A. R. v. Finta, (SCC), [1994] 1 S.C.R. 701 (S.C.C.). R. v. Kurtzman, (ON CA), [1991] O.J. No. 1285 (QL), 4 O.R. (3d) 417 (O.C.A.), per Tarnopolsky, Griffiths andDoherty JJ.A. R. v. W. (D.), (SCC), [1994] 3 S.C.R. 521, S.C.J. No. 91 (QL) (S.C.C.). R. v. Lacroix, [2011] O.J.

No. 2332 (QL) (O.C.J.), per Quon J.P. Statutes, Regulations and Rules Cited: Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 1(1), 144, 144(1), 144(5)(a), 144(15),144(18), 144(31.2). Reference Material Cited: Paciocco, D.M. and Stuesser, L. The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011), pp. 32 and 33. Exhibits entered: Exhibit "1" - an aerial photograph of the intersection of Bristol Road West and Hurontario Road, Mississauga, taken in the Spring of2009 and numbered 2010-208824, on which Crown witness Anthony Franceschi had marked a red “X” to indicate the location of his

school, which is southwest of the intersection; and printed his initials “A.F.” at the northeast corner of the intersection to indicate where he been crossing the street; and drew an arrow within the northside pedestrian crosswalk to represent the westbound direction in which he had been crossing Hurontario Street; and printed the initials “E.G.” in blue to indicate where his friend Erwin Gadong (the person hit by a motor vehicle) had been situated at the northwest corner of the intersection; and with a blue-coloured arrow within the northside pedestrian crosswalk to indicate the eastbound direction Erwin Gadong had been travelling across Hurontario Street on November 24, 2010 (1 page).

Exhibit "2" - an aerial photograph of the intersection of Bristol Road West and Hurontario Road, Mississauga, taken in the Spring of 2009 and numbered 2010-208824, on which Crown witness Natalie Iannello had marked with a large red “X” within a circle to indicate the location of her school, which is southwest of the intersection; and printed her initials “N.I.” at the southeast corner of the intersection to indicate where she been crossing the street; and drew an arrow within the southside pedestrian crosswalk to represent the westbound direction in which she had been crossing Hurontario Street; and marked a small red “x” within the northside pedestrian crosswalk to indicate where she had observed Erwin Gadong (the person hit by a motor vehicle) lying on the roadway at the northwest corner of the intersection on November 24, 2010 (1 page).

Exhibit "3" - an aerial photograph of the intersection of Bristol Road West and Hurontario Road, Mississauga, taken in the Spring of 2009 and numbered 2010-208824, on which Crown witness Karissa Persaud had marked a red “X” to indicate the location of her school, which is southwest of the intersection; and printed her initials “K.P.” at the southeast corner to indicate where she been crossing the street; and drew an arrow within the southside pedestrian crosswalk to represent the westbound direction in which she had been crossing Hurontario Street; and made a small “x” south of the northside pedestrian crosswalk to indicate where she had observed Erwin Gadong (the person hit by a motor vehicle) lying on the roadway at the northwest corner of the intersection on November 24, 2010 (1 page).

Exhibit "4" - an aerial photograph of the intersection of Bristol Road West and Hurontario Road, Mississauga, taken in the Spring of 2009 and numbered 2010-208824, on which Crown witness Dino DiBernardo had marked a red “X” to indicate the location of his daughter’s school, which is southwest of the intersection; and printed his initials “D.D.” in the designated left-turn lane on Bristol Road on the eastside of Hurontario Street to indicate where his motor vehicle had been stopped facing westbound; and drew an arc with an arrow to represent his intended left turn and direction of travel from the eastside of Bristol Road to go southbound on Hurontario Street on November 24, 2010 (1 page).

Exhibit "5" - an aerial photograph of the intersection of Bristol Road West and Hurontario Road, Mississauga, taken in the Spring of 2009 and numbered 2010-208824, on which Crown witness Erwin Gadon g had marked a blue “X” to indicate the location of his school, which is southwest of the intersection; and printed his initials “E.G.” at the northwest curb of the intersection to indicate where he had been before waiting to cross the intersection on his bicycle; and drew an arrow within the northside pedestrian crosswalk to represent the eastbound direction in which he had attempted to ride a bicycle across Hurontario Street on November 24, 2010 (1 page).

Exhibit "6" - an aerial photograph of the intersection of Bristol Road West and Hurontario Road, Mississauga, taken in the Spring of 2009 and numbered 2010-208824, on which Crown witness Elias Hanna had marked a long “X” in the southbound curb lane of Hurontario Street, just north of the intersection to indicate where the transit bus he had been driving had been stopped; and also made a small “x” to indicate the location of where he had observed the boy waiting at the northwest corner while on a bicycle, just west of the northside pedestrian crosswalk on November 24, 2010 (1 page).

Exhibit "7" - an aerial photograph of the intersection of Bristol Road West and Hurontario Road, Mississauga, taken in the Spring of 2009 and numbered 2010-208824, on which defence witness Joanne Ong had marked a red “X” to indicate the location of her son’s school, which is southwest of the intersection; and printed her initials “J.O.” at the beginning of the designated left-turn lane that is south of the southside pedestrian crosswalk to indicate where she had been driving northbound on Hurontario Street and where she had observed the collision between the bicyclist and a southbound truck; and had also marked a small “X” in the northside pedestrian crosswalk to indicate where she had observed the bicyclist at the northwest corner of the intersection; and drew an oval-shaped object where she had observed the white car and an “x” within a rectangle indicating where she had first observed the pickup truck in the southbound curb lane of Hurontario Street behind the bus and the white car; and made a large “X” south of the northside pedestrian crosswalk to indicate where she believes the intersection began for southbound traffic on November 24, 2010 (1 page).

Exhibit "8" - a hand-drawn sketch made by the defendant’s legal representative in which defence witness Edwin Bonilla drew a line and an “x” on the line to represent where Bonilla believes is the beginning of the intersection in question for southbound traffic on Hurontario Street (1 page). Exhibit "9" - an attempted and incomplete hand-drawn sketch made by defence witness Edwin Bonilla of the intersection showing a solid line connecting the north curb of the intersection, as where Bonilla thought the intersection in question began for southbound traffic on

Hurontario Street (1 page). Exhibit "10" - one page containing two photographs of the defendant’s black pickup truck (F250 4x4), which had been pulling a trailer that contained a lawnmower. Top photograph is a view of the defendant’s truck showing the salter in the rear bed of the truck. Bottom photograph is a view of the defendant’s black truck looking at the front of the passenger-side of the truck and the front windshield of the truck, in which the trailer is visible behind the truck.

The defendant also drew an arrow on the lower photograph to indicate where Edwin Bonilla had been seated in the rear seat of the truck (1 page). 1. INTRODUCTION [ 1 ] Like many high school students of his generation, Erwin Gadong dreams of going to university or college, starting a career, and possibly getting married. However, at 7:52 a.m. on November 24, 2010, his future and personal aspirations may have been abruptly changed by the driver of a pickup truck, who is alleged to have run a red light and struck Gadong at the intersection of Bristol Road and Hurontario Street, in the City of Mississauga.

When Gadong and the pickup truck collided, Gadong had been inside the pedestrian crosswalk while trying to ride a bicycle across Hurontario Street, after he had supposedly received a “walk” signal that would have lawfully permitted Gadong to proceed across the street.

Unfortunately, as a result of the collision, Erwin Gadong suffered a brain injury, and although he has returned to school on a full-time basis, he still requires rehabilitative services twice a week to help improve his memory and brain function. [ 2 ] In addition, after the Peel Regional Police had completed their investigation of the November 24, 2010, collision between the pickup truck and Erwin Gadong, they swore out an information on February 17, 2011, charging the driver of the pickup truck, Benito Scetto, with a

Part III regulatory offence for “failing to stop for a red light”, contrary to s. 144(18) of the Highway Traffic Act , R.S.O. 1990, c. H.8. [ 3 ] The red light charge eventually proceeded to trial and was held over three days: October 31, 2012, November 1, 2012, and March 1, 2013. A total of nine witnesses testified at the trial.

After the testimony of the nine witnesses were completed on the first two days of the trial, the matter was then adjourned to November 23, 2012, in order for the defendant’s legal representative to consider whether transcripts of the trial would be ordered so that they could be used to prepare final submissions. On November 23, 2012, the defendant’s legal representative informed the court that due to the anticipated cost of obtaining transcripts of the proceedings that the transcripts would not be ordered.

As a consequence, a date to hear final submissions was then scheduled for March 1, 2013. [ 4 ] For the defendant’s closing submissions, the defendant argues that the Crown has not proven that he had committed the offence of failing to stop for a red light beyond a reasonable doubt because of the conflicting testimony among the witnesses and the credible evidence given by the defendant, which he contends has been corroborated by other witnesses, in that the defendant had not crossed the stop line on a red light; rather, the traffic light for the defendant had just changed from a green light to a yellow light when the defendant’s pickup truck crossed the stop line, and that it had been the bicyclist, whose view had been obstructed by a bus stopped in the curb lane, that had suddenly popped out in front of the defendant’s truck, and that it had been the bicyclist who had struck the passenger- side mirror of the defendant’s truck while the defendant had been attempting to swerve the truck in order to miss the bicyclist. [ 5 ] On the other hand, the Crown submits that the testimony of the defendant and the witnesses who said the traffic light for the defendant had been yellow when the defendant’s pickup truck crossed the stop line is not reliable nor credible, while the testimony of the Crown’s witnesses is credible and should be accepted, which would prove beyond a reasonable doubt that the defendant’s truck had crossed the stop line on a red light just before the truck struck the bicyclist in the pedestrian crosswalk. [ 6 ] After closing arguments were concluded on March 1, 2013, I reserved judgment and adjourned the matter until May 3, 2013, to render my judgment.

These, therefore, are my written reasons for judgment: 2. THE CHARGE [ 7 ] Under a

Part III information sworn on February 17, 2011, the defendant had been charged with committing the offence of “red light – fail to stop”, contrary to s. 144(18) of the Highway Traffic Act , R.S.O. 1990, c. H.8. The charge states that :

Benito Scetto of [removed to protect privacy], Mississauga Ontario on or about the 24th day of November, 2010, at the City of Mississauga in the Central West Region did commit the offence of: at approximately 7:52 a.m., being the driver of a motor vehicle on Hurontario Street, licence number [removed to protect privacy], and approaching the intersection where a red signal was showing and facing such light at Bristol Road and Hurontario Street did fail to bring the said motor vehicle to a full stop, contrary to the Highway Traffic Act, section 144(18) . 3. FACTUAL BACKGROUND (

a) SUMMARY OF EVENTS [ 8 ] On the morning of November 24, 2010, just before 7:52 a.m., Erwin Gadong, had just finished an early morning basketball practice at St. Francis Xavier Secondary School, and had left the school to go home so that he could change into his school uniform for his first class. He had also borrowed his friend’s bicycle and had been riding it towards his home.

When he reached the intersection of Hurontario Street and Bristol Road in the City of Mississauga, he had a red light and had to wait on the sidewalk in the northwest corner of the intersection for the traffic and pedestrian lights to change so that he could travel east across Hurontario Street.

At the same time, Benito Scetto, the defendant, had been driving his black-coloured pick-up truck, which had been pulling a trailer containing lawnmowers and equipment, southbound on Hurontario Street in the middle of three southbound lanes and approaching the intersection at Bristol Road, which is controlled by automatic traffic lights.

He also had two passengers in his pickup truck and they had been on their way to a private residence to do leaf collection, as part of the defendant’s gardening and landscaping business. [ 9 ] Also at that time, there were many students on the eastside of the intersection waiting for the pedestrian signal light to change so that they could cross Hurontario Street in order to get to their school, which is St. Francis Xavier Secondary School, located on the southside of Bristol Road, about half of a block west of the intersection.

In addition, there were also motor vehicles that had been stopped on Bristol Road waiting for the traffic light to change. As well, there had been a Mississauga Transit bus southbound on Hurontario Street, which had been stopped in the curb lane just north of Bristol Road, right beside the bus stop located in the northwest corner of the intersection.

People were also getting on and off the bus. [ 10 ] Then, at approximately 7:52 a.m., Erwin Gadong, moved forward and entered onto the pedestrian crosswalk located on the northside of the intersection that runs in an east and west direction, supposedly after the pedestrian signal light had come on, which would have permitted him to proceed across Hurontario Street. He was also riding a bicycle when he entered onto the pedestrian crosswalk.

As Gadong reached the middle lane of the southbound lanes of Hurontario Street while still within the pedestrian crosswalk, the black pickup truck driven by the defendant collided with Gadong. Gadong had come into contact with the passenger-side of the pickup truck, flew in the air, and landed on the roadway. [ 11 ] After the collision, the driver of the pickup truck, Benito Scetto, stopped his pickup truck on the southside of the intersection, and then got out and checked on the condition of the bicyclist. He then remained at the intersection for the police to arrive.

When police officers from the Peel Regional Police arrived at the intersection, Scetto gave a statement voluntarily to one of the officers. [ 12 ] In addition, Gadong had been unconscious when people, who had been at the intersection, had checked on Gadong’s condition. An ambulance then arrived and took Gadong to the hospital. Fortunately, Gadong survived the collision, but received a serious head injury that has damaged his brain and cognitive abilities.

He also lost one tooth and split another one, fractured h is skull, nose, and left clavicle, and his upper left lip had also required stitches. [ 13 ] Gadong also had to miss approximately three months of school.

Although he has returned to school, he is still receiving rehabilitative services twice a week to help him improve his memory and cognitive abilities. [ 14 ] Furthermore, after officers from the Peel Regional Police had interviewed witnesses who were at the intersection at the time of the collision, including the defendant, and after completing their investigation of the collision, they decided to charge the defendant with committing the offence of “red light – fail to stop”, contrary to s. 144(18) of the Highway Traffic Act .

[ 15 ] A

Part III information charging Benito Scetto with the red light offence was then sworn on February 17, 2011, and Scetto was served with a summons informing him of the charge and of the date, location, and time of his first appearance in court, which was to be on April 21, 2011, at the Brampton Provincial Offences Courthouse. Eventually, after several more appearances, the matter was set down for trial. [ 16 ] The trial of this charge was then held over three days: October 31, 2012, November 1, 2012, and March 1, 2013. At the trial, nine witnesses testified. S ix testified for the Crown while three for the defence. They are, in the order that they testified:

(1) Anthony Franceschi, a witness who had been a pedestrian walking westbound on Bristol Road and waiting at the northeast corner of the intersection for the pedestrian walk signal to turn on just before the collision;

(2) Natalie Ianniello , a witness who had been a pedestrian walking westbound on Bristol Road and waiting at the southeast corner of the intersection for the pedestrian walk signal to turn on just before the collision;

(3) Karissa Persaud , a witness who had been a pedestrian walking westbound on Bristol Road and waiting at the southeast corner of the intersection for the pedestrian walk signal to turn on just before the collision;

(4) Dino DiBernardo , a motorist who had been driving westbound on Bristol Road and had been stopped for a red light, first in line in the designated left-turn lane;

(5) Erwin Gadong , the high school student that was struck by the defendant’s vehicle;

(6) Elias Hanna , the driver of the City of Mississauga Transit bus that had been southbound on Hurontario Street in the curb lane and stopped for a red light at the northwest corner of the intersection;

(7) Joanne Ong , a driver of a motor vehicle northbound on Hurontario Street and first in line in the northbound designated left-turn lane;

(8) Edwin Gilberto Bonilla , a passenger sitting in the backseat of the pickup truck driven by the defendant; and

(9) Benito Scetto , the defendant. (

b) DESCRIPTION OF THE INTERSECTION [ 17 ] The intersection of Bristol Road and Hurontario Street is located in the City of Mississauga. It is a large and busy intersection that is controlled by automatic traffic lights and pedestrian signals.

The automatic traffic lights, as conceded by the defendant’s legal representative, had been operating normally and properly on November 24, 2010, at the time of the collision between the defendant’s pickup truck and the bicyclist. [ 18 ] As well, for the purposes of this proceeding, Bristol Road will be referred to as an east-west road while Hurontario Street will be referred to as a north-south road. [ 19 ] Furthermore, based on the aerial photographs of the intersection entered as exhibits, there is an indication that there is a center median on the eastside of the intersection that separates northbound and southbound traffic on Bristol Road West and a center median on both the north and south sides of the intersection that separates northbound and southbound traffic on Hurontario Street. [ 20 ] In addition, based on the aerial photographs of the intersection, there are five lanes of northbound traffic for Hurontario Street on the southside of the intersection for the eastern half of the roadway, in which the three center-most northbound lanes are through lanes, while the most westerly northbound lane is a designated left-turn lane, and the most easterly northbound lane is designated right-turn lane.

Moreover, on the northside of the intersection for the eastern half of Hurontario Street, there are three northbound lanes. [ 21 ] Moreover, the aerial photographs also show that there are four southbound lanes of traffic for Hurontario Street on the northside of the intersection for the western half of the roadway, in which the three most westerly southbound lanes are through lanes, while the most easterly southbound lane is a designated left-turn lane.

And, on the southside of the intersection for the western half of Hurontario Street, there are three southbound lanes. [ 22 ] Furthermore, the aerial photographs also show that there are three westbound lanes of traffic for Bristol Road West on the eastside of the intersection for the northern half of the road, in which the center lane is a through lane, while the most southerly lane is a designated left-turn lane and the most northerly lane is used as a through lane and for making right turns.

And, on the southside of the intersection for the eastern half of Bristol Road, there are two eastbound lanes. [ 23 ] Moreover, the aerial photographs also show that there are two westbound lanes of traffic for Bristol Road West on the westside of the intersection for the northern half of the road. And, for the southern half of the road for the westside of Bristol Road, there are three eastbound lanes, in which the center lane is a through lane, while the most northerly eastbound lane is a designated left-turn lane

and the most southerly eastbound lane is used as a through lane and for making right turns. [24] In addition, based on the testimony given during the trial there are also pedestrian crosswalks marked and painted on the roadsurface on each side of the intersection, as well as white stop lines that are painted on the road surface for each direction of traffic. And,from the aerial photographs, the white stop line for southbound traffic on Hurontario is located just north of the pedestrian crosswalklines situated on the northside of the intersection.

The distance between the white stop line and the north boundary line of the pedestriancrosswalk, as shown on the aerial photographs, is about one-third of the width of the crosswalk from the north boundary line to the southboundary line of the crosswalk, which makes the white stop line appear to be about a meter north of the pedestrian crosswalk (or half ofthe width of a car shown in the aerial photographs). [25] Furthermore, the aerial photographs of the intersection also show there is a gas station on the southwest corner of theintersection, a shopping plaza on the southeast corner, undeveloped land and a bus stop at the northwest corner, and townhouses in thenortheast corner. [26] Moreover, based on the agreed statement of facts, the traffic lights for the intersection were functioning normally and properlyworking at the time of the collision.

In addition, the defendant’s legal representative agreed that there is a 2.5 second all-red phase forthe traffic lights for all directions at the intersection that had been based on the Guild Report dated March 9, 2011, that had beenprepared for the City of Mississauga, and provided to the defendant as part of the Crown’s disclosure, which means that when a trafficlight at the intersection changes to show a red light then there is a red light in all directions of traffic for a duration of two and a halfseconds.

The concession by the defendant’s legal representative that there had been a 2.5 second all-red phase for the traffic lights at theintersection had been made after the court became concerned about not having evidence of what the duration of the all-red phase wouldbe after the Crown had informed the court that the investigating police officer would not be called as a witness. [27] More important, the court viewed that evidence on the duration of the all-red phase was essential and should be before the court,in the interests of justice and for the court to arrive at a proper decision on the merits of the case, for which the court informed both theCrown and the defendant’s legal representative that it was considering the necessity of the court to summon the investigating officer toattend to provide that evidence about the duration of the all-red phase, relying on R. v.

Finta, (SCC), [1994] 1 S.C.R.701 (S.C.C.), at paras. 295 to 297 and 302 [emphasis is mine below]: It has long been recognized in Canada and in England that in criminal cases a trial judge has a limited discretion to call witnesseswithout the consent of the parties. This step may be taken if, in the opinion of the trial judge it is necessary for the discovery of truth orin the interests of justice.

This discretion is justified in criminal cases because "the liberty of the accused is at stake and the object of theproceedings is to see that justice be done as between the accused and the state" (Sopinka, Lederman and Bryant, The law of Evidence inCanada (1992), at p. 826). The discretion should only be exercised rarely and then with extreme care, so as not to interfere with the adversarial nature of the trialprocedure or prejudice the accused.

It should not be exercised after the close of the defence case, unless the matter was one which couldnot have been foreseen. (See Sopinka, Lederman and Bryant, supra, at p. 826; Peter K. McWilliams, Canadian Criminal Evidence (3rded. 1988), at para. 27:10830 "Right of judge to call witnesses", at pp. 27-15 and 27-16; Cross on Evidence (7th ed. 1990), at pp. 266-68);Phipson on Evidence (14th ed. 1990), at pp. 219-20; Archbold, Pleading, Evidence and Practice in Criminal Cases (45th ed. 1993), at p.1/555; see also annotation by Philip C.

Stenning, " One Blind Man to See Fair Play': The Judge's Right to Call Witnesses" (1974), 24C.R.N.S. 49, and Michael Newark and Alec Samuels, "Let the Judge Call the Witness", [1969] Crim. L. Rev. 399.) There is very little case law on how the discretion should be exercised. In his annotation, supra, Stenning enumerates seven propositionsderived from English case law. These propositions were cited with approval as correctly stating the Canadian law in Campbell v. TheQueen (1982), (PE SCTD), 31 C.R. (3d) 166 (P.E.I.S.C.), at pp. 172-75, per Campbell J., and in R. v.

S.(P.R.) (1987), (ON SC), 38 C.C.C. (3d) 109 (Ont. H.C.), per McKinlay J. (as she then was), affirming decision of Kurisko Dist. Ct.J. A

summary of these propositions is as follows: 1. The trial judge may call a witness not called by either the prosecution or the defence, and without the consent of either the prosecutionor the defence, if in his opinion this course is necessary in the interest of justice: R. v. Harris (1927), 20 Cr. App. R. 86 at p. 89 (K.B.);R. v. Holden (1838), 8 Car. & P. 606, 173 E.R. 638; R. v. Brown, (QC CA), [1967] 3 C.C.C. 210, at p. 215, per HydeJ. (dissenting in part on another issue), at pp. 219-20 per Taschereau J. (for the majority); R. v. Bouchard (1973), (NSSC), 24 C.R.N.S. 31, (N.S. Co. Ct.), at p. 46; Campbell v.

The Queen, supra, at pp. 172-75; R. v. S. (P.R.), supra, at pp. 111, 119-24; R.v. Black (1990), (NS CA), 55 C.C.C. (3d) 421 (N.S.S.C.A.D.), at p. 425. 2. The right to call a witness after the close of the case of the defence should normally be limited to a case where a matter was one whichcould not have been foreseen. 3. A witness may be called after the close of the defence not in order to supplement the evidence of the prosecution but to ascertain thetruth and put all the evidence before the jury. 4.

The trial judge may not exercise his right to call a witness after the jury has retired, even at the request of the jury.

5. In a non-jury case, in the absence of special circumstances, it is wrong to allow new evidence to be called once a trial judge has retired, and probably after the defence has closed its case. 6. A judge ought not to exercise his discretion to call a witness if the defence would in no way be prejudiced by calling the witness. The defence should not be permitted in this way to use the judge to call their witness to give him a greater appearance of objectivity. 7.

The calling of the witness after the defence has closed its case is a factor which may be taken into account on appeal. … In order to take this unusual and serious step of calling witnesses, the trial judge must believe it is essential to exercise the discretion in order to do justice in the case .

In the case at bar, where the trial judge had decided that certain evidence was essential to the narrative it was a reasonable and proper exercise of the discretion to call the evidence if the Crown refused to do so. … . [ 28 ] In any event, this 2.5-second all-red phase is typically what the duration for that particular phase would be for automatic traffic lights at an intersection with the same setup. (

c) AGREED FACTS [ 29 ] The defendant’s legal representative also conceded and agreed with the Crown to the following facts: (

a) the defendant’s statement to the police had been given voluntarily, but the prosecution would not be entering the statement. (

b) the date, time, place, and jurisdiction is not at issue. (

c) the identity of the driver of the vehicle in question is not at issue and that the defendant was the driver of that vehicle. (

d) the Guild Report from the contractor for the municipality, dated March 9, 2011, provided by John Clarke, Manager of Traffic Engineering, is conceded and not at issue, and indicates that the traffic lights at the intersection of Bristol Road and Hurontario Street were functioning and working properly on November 24, 2010, at the time in question. (

e) that when the traffic light for southbound Hurontario Street is green than the light is also green for northbound traffic. (

f) the cycle for the traffic lights at the intersection is red-green-amber-red. (

g) that there is an all-red phase for the traffic lights in all directions of the intersection, which also has a duration of 2.5 seconds. (

d) SUMMARY OF TESTIMONY [ 30 ] The following is a

summary of the testimony given by the nine witnesses who testified at the trial:

(1) Anthony Franceschi, a witness who had been a pedestrian walking westbound on Bristol Road and waiting at the northeast corner of the intersection for the pedestrian walk signal to come on just before the collision occurred [ 31 ] Anthony Franceschi testified he is a Grade 12 high school student who attends St. Francis Xavier Secondary School in Mississauga and has plans to go to university and study business.

[ 32 ] At the time of the accident involving Erwin Gadong, Franceschi said he had been only in Grade 10. Franceschi also said he had spoken with the police that day. [ 33 ] Furthermore, Franceschi said he and Erwin Gadong are friends and have attended elementary and high school together, but they do not hang out with each other. [ 34 ] Franceschi also said that just before the accident had occurred he had been walking to school and had been stopped and waiting to cross at the intersection of Hurontario and Bristol. He further said he had to stop for a duration of a minute.

He also said there had been a green light for him at the time when he saw a vehicle hit Erwin Gadong. Moreover, he said he had looked before he walked and had observed that the light for him had been green. He further said that when Erwin Gadong had entered the intersection, the pedestrian light for crossing had been green, and that both of them had been crossing at the same pedestrian crosswalk, but on opposite sides of the street. [ 35 ] Furthermore, Franceschi said that Erwin Gadong had been riding his bicycle when Gadong entered the intersection and that Gadong did not hesitate in entering the intersection.

Also, Franceschi said that Gadong had been still on his bicycle when the collision occurred and that Franceschi had been moving forward and looking forward the whole time and straight ahead at Gadong when the collision happened. [ 36 ] In addition, on a blank aerial photograph of the intersection of Bristol Road West and Hurontario Road, in the City of Mississauga (Exhibit “1”), Franceschi had marked an “X” with a red pen to indicate that the location of his school is in the southwest area of the intersection.

He then printed on the photograph his initials “A.F.” to indicate that he been crossing the street at the northeast corner, and then drew an arrow within the northside pedestrian crosswalk to represent the westbound direction in which he had crossed Hurontario Street.

He then printed the initials “E.G.” in blue ink to indicate that his friend Erwin Gadong had been situated at the northwest corner of the intersection and then drew a blue-coloured arrow within the northside pedestrian crosswalk to indicate the eastbound direction Erwin Gadong had been travelling across Hurontario Street on November 24, 2010. [ 37 ] Moreover, Franceschi said there had been other people with him at the time. He also said that he does not normally walk to school, but had to walk to school that day. [ 38 ] Furthermore, Franceschi repeated that the light for him had been green so that he could walk.

He further elaborated that he had the white walking sign, which shows a white-coloured symbol of a person and had seen this symbol before he had entered onto the street. [ 39 ] Franceschi also said he had been waiting and watching to see the light turn. He further said the intersection had been busy that morning, with cars at the intersection at that moment. In addition, he said he had observed that the colour of the north-south light had been red, which meant those going in that direction had to stop. Furthermore, he said he saw a black truck cross onto the intersection and hit Erwin Gadong.

He also said he saw the light for the truck had been red and that the truck had not stopped. Moreover, he said there were also two or three vehicles that were going in the same direction as the truck, but that they had stopped for the red light. [ 40 ] In addition, Franceschi said he did not know what kind of truck it was, but that the truck had been going fast. However, he said he is not certain whether the truck had been going the speed limit. Moreover, he said he had first seen the black truck when it had hit or collided with Erwin Gadong.

Furthermore, when he had first observed Erwin Gadong, Franceschi said he had been looking straight and observed Gadong on the sidewalk waiting to cross, parallel to him but on the opposite side to him, and then later observed Gadong enter the intersection at the same time that Franceschi had entered the intersection. However, he said he is not certain where Gadong was exactly on the sidewalk.

He also said that Gadong had been 1.5 to 2 metres into intersection when Gadong was hit. [ 41 ] Furthermore, Franceschi said there had been three or four people in front of Franceschi who Franceschi did not know and that they had stepped on the road before Franceschi did and were 1.5 meters ahead of Franceschi . He also said they were not running but walking a normal pace. Moreover, he said he does not know if any of those three or four people are here today. [ 42 ] After Franceschi had observed Erwin Gadong being hit, he said he then observed Gadong lying down on the ground.

He said he then went first to look at Gadong, then went onto the sidewalk and waited, and then heard sirens. He also said that while he was waiting someone had called the police and ambulance.

[ 43 ] Furthermore, Franceschi said he had observed people stop and come out of their cars. He then said he went to the school to tell school administrators about what had happened. He also said that later during the first period of his classes, at about 9:00 a.m., he had spoken with the police. [ 44 ] In addition, Franceschi said he did not have his G1 license at the time of the accident and only got it in September.

He also said he does not know the speed limit on Hurontario and guessed that it is 50, but does not know for sure. [ 45 ] Franceschi also agreed with the suggestion made to him during cross-examination that since he had been looking forward the whole time while waiting for the pedestrian signal to change that he did not see the colour of the light for the truck at the time the truck had entered the intersection, nor did he see the light for the truck at any time. Also, he said he did not see the truck enter the intersection until the truck had hit Erwin Gadong.

(2) Natalie Ianniello, a witness who had been walking westbound on Bristol Road and waiting at the southeast corner of the intersection for the pedestrian walk signal to come on just before the collision occurred [ 46 ] Natalie Ianniello testified that she is in Grade 11 at St. Francis Xavier Secondary School and plans to pursue business and the accounting field after high school. She also said she remembers November 24, 2010, and said that she had been going towards St. Francis Xavier at the time in question.

In addition, she said she did speak with the police that day. [ 47 ] Ianniello further said that her father had dropped her off at the plaza across from the school and that she had been crossing Hurontario and Bristol when the accident occurred. [ 48 ] Also, on a blank aerial photograph of the intersection of Hurontario and Bristol (Exhibit “2”), Ianniello used a red pen to mark an “X” west of the intersection to show the location of her school.

She then marked the location of where she had been when she started crossing Hurontario Street with her initials “N.I.”, which were placed at the southeast corner of the intersection. She also drew within the southside pedestrian crosswalk an arrow pointing west to show the direction that she was going.

She then marked a small “x” where Erwin Gadong had been located when she saw him lying on the ground after the accident, which was in the northwest area of the intersection, just east of the west curb of Hurontario Street and north of the north curb line of Bristol Road. [ 49 ] In addition, Ianniello said she knows Erwin Gadong but did not see him at the intersection until after the accident had occurred, and that she did not even know it had been him lying on the road until she had approached the location of where he had been lying on the road, which is when someone had told her that it had been Erwin Gadong lying on the road.

Furthermore, she said she has known Erwin Gadong since elementary school, but not well, and only talks to him occasionally. [ 50 ] Ianniello also said that just before the accident, which had been about 7:45 to 7:50 a.m., she had been walking with her classmate, Alina. She also said her first class of the day starts at 8:15 a.m. In addition, she said there is usually a large group of students at that time crossing Hurontario at the intersection of Hurontario and Bristol in order to get to school.

She further said she had been waiting for the light, which was a red light for Bristol and a green light for Hurontario. She also said she saw the lights, and after a few seconds or minutes of waiting the light changed and they starting walking westbound towards their school, which is on the southside of the road. Furthermore, she said that cars had stopped before she starting walking and that when she first got to the intersection the light had been red and then it changed to white.

She also guessed that there had been approximately 10 to 15 people that had crossed with her. [ 51 ] Moreover, after reviewing her handwritten statement while in the witness box, Ianniello acknowledged that she had drawn a diagram in her statement and that her memory would have been more fresh at the time that she had written her statement than it would be presently. She then said that when she and her classmate Alina, whose last name she does not know, had begun to cross in a westerly direction they had a green light and cars had a red light or possibly a yellow light.

She also said that she had indicated on her diagram that Erwin Gadong had been going west because she had not seen the collision and it had been her understanding that day that Erwin had been going west, but then later learned that he had been actually going in an east direction. She further acknowledged that she had not seen Erwin Gadong when she had started to cross the street and when she did look in that direction and saw him lying on the road she had not seen anyone on the road.

In addition, she said that she knew the colour of her light, but not what the colour of the light had been for Erwin Gadong. [ 52 ] Ianniello also said she is confident that the light had been red for Hurontario because she had crossed the road, but that it had happened so fast, and therefore, is not 100 percent sure, but pretty sure. However, she said she did not see the traffic light for Hurontario,

but did see the one for Bristol. [ 53 ] Furthermore, Ianniello said she did not see Erwin Gadong until after he had been hit. She further said she had not seen anyone walking with Erwin Gadong, in the same direction as him. She also said she had been looking generally in a forward direction while she had been talking with her classmate, who she said had been looking that way or in the direction of the accident.

And, she said that it was not until the moment that Ianniello had seen her classmate’s face go blank had been when she had reacted and then looked in the direction of the accident and noticed that someone, later identified as Erwin Gadong, was lying on the ground. She also said that both she and Alina were facing toward their school, but as they were walking across the street, their faces were toward each other while they were talking to each other.

In addition, she said she had been in the middle of the intersection or halfway across the street when she observed someone lying on the northside of the road, which would be at the opposite side of the street from her. Furthermore, she guessed that her friend Alina must have seen what had happened, but from the corner of her eye.

Moreover, she said that she had no idea where Erwin Gadong had been or what Alina had actually observed, and that she only observed Alina’s facial expression. [ 54 ] In addition, Ianniello said she does not remember seeing a pickup truck. [ 55 ] Ianniello also said she had given a statement to the police that day when the events had been fresh in her mind. She also said she had guessed that it had taken her seven seconds to get to the middle of the intersection and had written that down in her statement. She also said she does not know the speed limit there.

In addition, she said that most of the other people had run over to see what had happened and that most cars had stopped at the time and that people had also gotten out of their cars. She also said that it had taken her a couple of seconds to reach Erwin. [ 56 ] Furthermore, Ianniello said Erwin Gadong, who was wearing a hood, had been lying by a bike. She also said that one of the other witnesses, who was a friend of Erwin Gadong, then recognized him and told her who it was on the ground, and Ianniello said it was at that moment that she knew it was Erwin Gadong who had been lying on the ground.

She said she then went to the school to tell the office and to contact his family. [ 57 ] In addition, Ianniello admitted that she had talked that day about what had happened with Krista and Alina, who were also there that day, but does not recall talking to them since that day about the event. However, she said that she did not talk to them until after she had given her statement to the police. She also said that she was the one that had written down her statement that had been given to the police and had believed that her statement had been true at the time.

Furthermore, she said she had not been given a copy of her statement until today. She also said she had not made any other writings in regards to the accident. [ 58 ] Furthermore, Ianniello did not see the collision occur nor does she recall seeing any vehicle involved in the accident at the time.

(3) Karissa Persaud, a witness who had been a pedestrian walking westbound on Bristol Road and waiting at the southeast corner of the intersection for the pedestrian walk signal to come on just before the collision occurred [ 59 ] Karissa Persaud testified she is a high school student and in Grade 12 at St. Francis Xavier Secondary School and hopes to be a French teacher and to attend the University of Toronto or Brock University. [ 60 ] Persaud also said she was in Grade 10 and attending high school at St. Francis Xavier on November 24, 2010 .

In addition, she said she had spoken to the police that day. [ 61 ] Furthermore, Persaud said she had been walking to school westbound on Bristol and that the light had just turned. She also said that she normally gets driven to school, but her father was out of the country, so she had to walk to school. [ 62 ] Also, on a blank aerial photograph of the intersection of Hurontario Street and Bristol Road (Exhibit “3”), Persaud used a red pen to mark an “X” west of the intersection to show where her school is located.

She then marked the location of where she had been when she started crossing Hurontario Street with her initials “K.P.”, which were placed at the southeast corner of the intersection. She also drew an arrow pointing west within the southside pedestrian crosswalk to show the direction that she was going. She then marked a small “x” where she had seen Erwin Gadong lying on the ground on Hurontario Street after the accident, which she placed in the northwest area of the intersection, just east of the west curb of Hurontario Street and north of the north curb of Bristol Road.

[ 63 ] Furthermore, Persaud said she knows Erwin Gadong from school, but does not socialize with him. She also said she did not see Gadong at the intersection until after he had been hit. [ 64 ] In addition, Persaud said she had been with her friend, Natalie Iannello and Alina, who are both Grade 11 students at her school, as well as being among a bunch of other students from her school when she had been crossing the street at about 7:55 a.m.

She also estimates there were 30 to 50 other people at the crosswalk with her, in which she described as some being beside her and some were behind her, but that they were close to each other when they had crossed. In addition, she said the intersection is always very busy at that time and that a lot of cars turn left onto Bristol to drop off students. Furthermore, she said that it had been busy that morning on November 24, 2010. [ 65 ] Persaud also said that when she first got to the intersection the light for her had been red and she had then waited until it turned green.

In addition, she explained that she first had the red “hand” sign for her crosswalk, but did not have to wait very long until it changed to the white “walking” sign for her to proceed onto the crosswalk. She then said she looked at the traffic light which she said was green and that the “walking” sign had showed that it was okay for her to proceed. Also, when the light changed for her, she said she had made sure that there were no northbound cars turning east or making a right turn onto Bristol before she walked across.

She also said she had looked in her direction to see if the traffic had been clear and said that it had been clear for her. However, she said she did not observe the right-hand side of the intersection where Erwin Gadong would have been, but that it had been clear for her side. Furthermore, she said Erwin Gadong had been on the opposite side and she did not look where he had been travelling to see if it had been clear there.

She also said she had looked to her left or straight ahead before walking into the intersection. [ 66 ] Moreover, Persaud said that when she had made it out about halfway or just before halfway into the intersection, she heard a lady honk her horn, which then caused everyone to freeze. Moreover, she explained that she had been in the middle of the intersection when she had stopped. Furthermore, she said that everyone had been frozen at that moment of the honking.

She then took a quick view of the intersection and looked to her right and said she noticed someone lying on the street and then observed a truck pull across the street, just stopping after the intersection at the southwest corner of the intersection. She also said the truck had gone by her pretty fast and that it had been hard to see the truck because it had been going so fast. Moreover, she said she did not observe the pickup truck in the intersection.

Additionally, she said the driveway for the gas station on the southwest corner of the intersection was located approximately 10 meters south of the intersection. She also said the truck had stopped in front of the gas station driveway and did not go inside. However, she said she did not see Erwin Gadong at any time before the accident, nor before Erwin had been hit.

In addition, she said she did not actually see the lights for north and south traffic on Hurontario, nor the colour of their light. [ 67 ] In addition, Persaud said she had spoken to the police that day and had been asked by the officer where she had been, what she had been doing at that time, and what she had observed. She also confirmed that the document shown to her when she had been testifying had been her detailed written statement that she had given to the police, that she had made in her own handwriting, and that the information at that time had been accurate to the best of her knowledge.

She further confirmed that it was her signature on the document. She also said she wrote the statement in the office at her school, but that the diagram on the second page of her statement showing where the students that had been with her were at the intersection had been drawn by the police officer. In addition, she said she had reviewed her statement before she signed it.

Then, after having had the opportunity to review her statement she said her memory had been refreshed and then said she knew the light for north and south Hurontario Street was red because the Bristol light had been green, since she had looked at both the traffic light and pedestrian sign for her direction. However, she said she did not make a note about the colour of the light for Hurontario Street. [ 68 ] Then, after seeing Erwin Gadong on the ground, Persaud said she and the other students ran to the office to notify them that Erwin Gadong had been hit.

She further said she then rushed back outside with the office administrator, but the administrator had told her to wait inside. When she returned to the intersection after reporting the accident to school administration, she had noticed that Erwin Gadong was no longer lying on the road. In addition, she said that when she had been in the pedestrian crossover on the southside of the roadway she did not know who had been lying on the roadway. Moreover, she explained that it had been another witness who had told her right after the accident that it had been Erwin Gadong who had been lying on the street.

Furthermore, she said that there had been no one else lying on the street.

(4) Dino DiBernardo, a motorist who had been driving westbound on Bristol Road and had been stopped first in line for a red light in the designated left-turn lane just before the collision occurred [ 69 ] Dino DiBernardo t estified he works as a Regional Sales Manager and has been employed in the sales area for 24 years. He also said he believes the statement he had made to a police officer on January 18, 2011, which he had read and signed, had been accurate. He further said he had discussed the event with his wife and daughter before he gave his statement, and that his discussion with his daughter had been about what she had observed at the scene of the accident.

[ 70 ] DiBernardo also said his daughter attends St. Francis Xavier Secondary School and is now in Grade 12. He also said his daughter had attended her school on November 24, 2010, and that he had been driving his daughter to school that day. [ 71 ] Furthermore, DiBernardo said that he and his daughter were in his car and they had been stopped at the lights at Bristol and Highway 10 (Hurontario Street).

He also said that his light had been red, that his vehicle had been the first in line, and that he had been stopped there for 10 to 15 seconds. [ 72 ] In addition, on a blank aerial photograph of the intersection of Hurontario and Bristol (Exhibit “4”), DiBernardo used a red pen to mark an “X” west of the intersection to show where his daughter’s school is located. He then marked the location of where he had been stopped in his car with his initials “D.D.”, which were placed on Bristol Road east of the intersection and in the westbound left-turn lane.

In addition, he drew an arrow making a left-turn to show the direction he was intending to go. He then marked a small “x” where he had observed Erwin Gadong lying on the ground on Hurontario Street after the accident, which was in the northwest area of the intersection, just east of the west curb of Hurontario Street and north of the north curb line of Bristol Road. [ 73 ] Furthermore, DiBernardo said that while he had been waiting for his light to change, he did not see any traffic from north to south go through the intersection.

He also said that he had only looked at his light and did not look at the light for Hurontario. [ 74 ] DiBernardo further said that it is always busy there. In addition, he said there had been a bus stopped in the right-hand lane on Hurontario facing southbound, north of Bristol Road. He also acknowledged that there is always a cluster of kids that cross there.

Moreover, he said that Anthony Franceschi, a friend of his daughter, had been on the northside of Bristol Road heading west. [ 75 ] In addition, DiBernardo said that after waiting at the red light, the light turned green, after which he said he then nosed ahead or proceeded a little into the intersection. He also said that after his light changed to green and as he moved his car forward, he then heard a loud bang. He said he then looked to his right and observed a bike laying on the ground and a vehicle flying through the intersection. He then said he finished completing his left turn.

Moreover, he said that a truck with a flatbed with lawn equipment had pulled over on Highway 10 (Hurontario Street). [ 76 ] DiBernardo also clarified that it had been only after he had moved his vehicle forward was the point at which he had heard the bang and then saw the truck flash or streak in front of him. He also reiterated that he had observed the light that was for him. In addition, he said he had observed the bike go down. He then said that after he had parked his car in the Rabba Store parking lot he had approached the individual lying on the ground.

Furthermore, he said that both he and his daughter had recognized the individual lying on the ground. He said his daughter then left to go to her school. In addition, he confirmed during cross-examination that he had not mentioned observing a “streak” in his statement to the police officer. [ 77 ] Moreover, after making his left turn, DiBernardo said he stopped and called 9-1-1. He further said he had been talking with the 9-1-1 operator the entire time. He also said he did not touch Erwin Gadong, but noticed that someone had brought a blanket to cover Gadong.

However, he said he did notice that Erwin Gadong had been bleeding and not conscious. He also recalled seeing blood from Erwin Gadong’s ear. Furthermore, he said Erwin Gadong had been situated past the bus, east of where the bus was already stopped, or when facing southbound he said that Erwin Gadong had been lying to the left of the bus and a little bit in the intersection.

Moreover, he confirmed that there were markings on the roadway indicating the east-west pedestrian crosswalk on the northside of the road, but did not note where Gadong had been lying in relation to that pedestrian crosswalk, but that Gadong had been laying in the area of the crosswalk, within the crosswalk. [ 78 ] In addition, when shown photographs of a black truck with a trailer (Exhibit “10”), DiBernardo confirmed that the truck in the photographs had been the truck with the flatbed that he had observed.

However, he said he had observed the flatbed only from its rear. [ 79 ] Furthermore, when asked about his memory being better on the day of the event than for today, DiBernardo said his memory is the same today and then explained he distinctly remembers three steps that day. For those three steps, DiBernardo said he had heard a bang and then looked to his right and then saw the bicycle lying on the ground . [ 80 ] In addition, he said his first clear view of the truck had been when it was at the corner by the gas station.

(5) Erwin Gadong, the high school student who had been struck by a southbound vehicle [ 81 ] Erwin Gadong testified he is currently in Grade 12 at St. Francis Xavier Secondary School and that on November 24, 2010, he had been in Grade 10. He also said his goal is to attend college to take a pre-firefighting course. [ 82 ] Gadong also said he remembers a little bit about the accident he had been involved in on November 24, 2010. On the morning of that day, he said he had been at a basketball practice at St. Francis Xavier before school commences because he is part of the school basketball team.

In addition, he said he had gotten to the practice using a bicycle he had borrowed from a friend. He also said he had asked his coach to leave the practice early at about 7:40 a.m. and then got on the bicycle to ride home from the school so that he could change into his school uniform. Also, he said his first class would start at 8:17 a.m. However, he said he could not recall at what time he had reached the intersection of Hurontario and Bristol. [ 83 ] In addition, Gadong said he lives 1.5 kilometers from the school.

He further said he has ridden a bicycle from the school to his home before and that it takes about eight minutes to go from the school to his home on a bicycle. [ 84 ] Furthermore, on a blank aerial photograph of the intersection of Hurontario Street and Bristol Road (Exhibit “5”), Gadong used a blue pen and marked an “X” west of the intersection to show where his school is located.

He then marked the location of where he had been stopped at the northwest corner of the intersection with his initials “E.G.”. and also drew an arrow within the northside pedestrian crosswalk showing the east direction that he had been riding his friend’s bicycle when he attempted to cross Hurontario Street. [ 85 ] In addition, Gadong said he only generally remembers that there were people at the intersection, which had been on the opposite side of the road to him and that he observed them on the southeast corner of the intersection. He also remembers that the intersection was fairly busy at that time.

Furthermore, he said that when he first got to the intersection he looked and saw that the traffic light for him to cross had been red. When he saw the red light, he said he then waited. However, he said he does not know for how long he had waited, but said he had waited for at least a couple of seconds. Then, when the light changed to the “walking man”, he said he starting riding and then remembers only waking up in the hospital. [ 86 ] Gadong also said he had been unconscious for two days at the hospital.

He also said he had received injuries to his brain that requires him to do rehab a couple of times a week, in which his therapist comes to his house. He further said that he had taken the months of January, February and March off from school. In addition, he said the effect of being hit now requires him to have an Individual Educational Planner who reads to him, as he cannot comprehend. [ 87 ] Furthermore, Gadong said he did not know he had been hit when he first woke up in the hospital. As for the last thing he remembers before waking up at the hospital, he said it was of him being stopped at the corner.

He also said he remembers riding into the intersection, and remembers being about a meter into the intersection, but does not remember being hit. [ 88 ] Moreover, Gadong described his physical injuries had consisted of a fracture on his skull, a fracture of his left nose, that he had three fractures on his left shoulder or clavicle, that he had stiches on his upper left lip, and that his two front teeth were injured. He further said that one tooth had been split while the other one had been knocked out.

In addition, he said he believes those physical injuries have healed. [ 89 ] Furthermore, when asked about whether he had recalled seeing any cars travelling southbound, Gadong said he remembers seeing a bus that had been parked at the bus stop at the corner of where he was and thinks that people had been getting off the bus. [ 90 ] In addition, Gadong said that when he had first started across the road he had been riding the bicycle between the lines of the pedestrian crosswalk. He also said there was a traffic control signal for pedestrians and a traffic light showing indications of yellow, red, and green.

However, he said that the two devices changed at the same time. He further said he had watched the pedestrian signal and when he had observed the white “walking man” signal, he began to cross the road. In addition, he said that when he had first looked at the lights he said he had to wait for the light to turn green for east and west traffic and then he had to look for the “stop hand” to change to the “walking man”, which is at the same time as the light on Bristol.

He also said that before he had crossed he had looked at the walking man signal and observed that it was a walking man and that the light for cars for Bristol had been green. Moreover, he said he had looked at the red light first and then had looked at the pedestrian control signal.

(6) Elias Hanna , the driver of a City of Mississauga Transit bus that had been southbound on Hurontario Street in the curb lane, which had been stopped for a red light at the northwest corner of the intersection at the time the collision occurred [ 91 ] Elias Hanna testified he is a bus driver for the City of Mississauga and has been since November of 2009. He also confirmed that he had spoken to the Peel Regional Police about the present matter. [ 92 ] Hanna also said he had been working the early morning shift and had been driving a 40-foot Mississauga Transit bus southbound on Hurontario Street.

He further said he had observed the lights for him turn amber at Bristol and Hurontario, which required him to slow down. He then said he made a full stop so he could pick up and drop off passengers. He further said he had been stopped at the bus stop that is located 10 feet behind the white line. After he stopped, he said people had gotten off his bus. He also said that both his front and rear doors were open with about 10 people in the area. He said that people also got on his bus.

Moreover, he said he naturally looks to the right when people get off his bus and lowers the bus for them. [ 93 ] While people had been unloading and loading onto his bus, Hanna said he had observed a kid on his bicycle on the northwest corner of the intersection waiting for the light. Hanna further said he had noticed that the light for Hanna had been red and then said he had observed the kid’s light turn green.

He said the boy on the bicycle then passed in front of the bus and then Hanna said he observed the vehicle next to him hit the boy on the bicycle when the boy had gone past the first right lane. [ 94 ] Hanna also said he did not see the boy approach the intersection, but while Hanna’s bus had been approaching the intersection was when Hanna said he had first noticed the boy on the bicycle, when the boy had already been standing on the sidewalk with the bicycle on the northwest side. [ 95 ] Furthermore, Hanna said the width of that first right lane is roughly the width of the bus, which he said is approximately four steps.

He also said the boy had been on the roadway when the mirror of the vehicle, which was a black-coloured GMC truck, had hit the boy. He further said this collision occurred on his left side when the kid had passed in front of him. In addition, Hanna said the boy had been wearing a hoodie when he had been hit by the truck’s mirror. [ 96 ] Moreover, Hanna said he had observed the truck speeding in an attempt to pass on a red light. He also said the light had been red for two to three seconds when the boy had been hit. Furthermore, Hanna said the boy had been on his bicycle within the crosswalk.

Moreover, Hanna said the boy had been the first to go past at the intersection on Hanna’s right side. When he observed the truck attempting to pass too late, Hanna said he tried to honk his horn. He then said he called 9-1-1. Moreover, he said he had observed the light for southbound traffic and that it had been red while the light for the kid had been green. In addition, he said that at the point when the first passenger had been getting on the bus was when he had first noticed the boy start riding his bicycle.

Also, Hanna said that when he had observed the boy begin to cross the intersection, Hanna said he had been looking southbound at the boy. Moreover, he said that he had noticed the light had been red when he opened the door and that when the kid was riding his bicycle the light had still been red. [ 97 ] Furthermore, Hanna said that it had only been the truck that had tried to pass.

He also said it had been the peak hour at that time in the morning. [ 98 ] Moreover, on a blank aerial photograph of the intersection of Hurontario Street and Bristol Road (Exhibit “6”), Hanna used a pen to mark the location of where he had stopped his bus with his initials “E.H.”, which were placed on Hurontario Street in the southbound curb lane just north of the northside pedestrian crosswalk.

In addition, he then marked a small “x” to show where he had observed Erwin Gadong, the boy that he had observed standing with the bicycle on the sidewalk waiting for the light, which was at the northwest corner of the intersection of Hurontario Street and Bristol Road.

(7) Joanne Ong, a driver of a motor vehicle travelling northbound on Hurontario Street that had been first in line in the northbound designated left-turn lane at the time the collision occurred [ 99 ] Joanne Ong testified she works at a dental office. Furthermore, she said that on November 24, 2010, she had made a statement to the police and had been at the Hurontario and Bristol intersection that day. [ 100 ] Ong also said she had been driving her car northbound on Highway 10 (Hurontario Street) and then changed lanes to go left on Bristol. She also said she had not reached the red light yet and had been at the beginning of the left-turn lane when she heard the sound

of gas accelerating, at which time she had observed a pickup truck try to get past the southbound light, which had been when the accident happened. Furthermore, at the point where she had reached the left-turn lane she said she is certain the colour of her light had been amber.

However, during cross-examination she revised her recollection of the event and what colour the traffic light was for the pickup truck when it entered the intersection from what she had originally given in her statement to the police on the day of the accident, by testifying that when the pickup truck had entered the intersection the light might have been red, considering that in four seconds the light should have been red. [ 101 ] However, Ong had agreed that her memory had been fresh at the time she made her statement to the police officer who had written down her statement.

Moreover, after she had read her statement, she said she signed it. [ 102 ] Furthermore, Ong said she had been intending to drop off her son at the time. She also recalls that when she had first observed the pickup truck the colour of her light had been yellow or amber. As well, she said she had observed a bicycle on the west side where the city bus had been parked that had been dropping off or picking up passengers.

She also said the bicycle had been originally on the pedestrian platform where people wait for the bus when she first had observed the bicyclist at the intersection. [ 103 ] Ong also said she believes the colour of the traffic light for cars going northbound and southbound had been yellow and believes the colour of the traffic light for east and west traffic had been red. She further explained that if her light had been at amber then she assumes it would have been red for east and west traffic. She also said that pedestrians going east or west at the intersection have their own pedestrian light.

In addition, she said she assumes the pedestrian light had been red, since it goes with the east and west lights. [ 104 ] Moreover, during her testimony in chief, Ong said she recalls observing the truck enter the intersection and believes the truck had entered the intersection when the light had been amber. However, although she believes the light for her had been amber she also said she had not been looking at the light at the time she heard the truck accelerate or when her attention had been on the truck and the pedestrian.

She further said she had pressed on her horn instantaneously because she had been afraid that the truck would not stop because of the acceleration. Furthermore, she said she had observed the collision and said the pedestrian had been in the pedestrian crosswalk at the time of the collision.

She also said she had a clear view of the traffic lights because there were no cars in front of her. [ 105 ] In addition , on a blank aerial photograph of the intersection of Hurontario Street and Bristol Road (Exhibit “7”), Ong used a red pen to mark an “X” southwest of the intersection to show the location of her daughter’s school. She then marked the location of where she had been at the intersection with her initials “J.O.”, which were placed in the lane closest to the centre of the northbound lanes of Hurontario Street and south of Bristol Road just before the designated left-turn lane begins.

In addition, she drew a small “x” at the northwest corner of the intersection on the northside pedestrian crosswalk to indicate where she had observed the bicyclist . She further said there had been a city bus, a white car, and the truck in a line. She also drew an oval-shaped object to indicate where she had observed the white car that had been behind the bus and an “x” within a rectangle indicating where she first saw the pickup truck in the southbound curb lane of Hurontario Street behind both the bus and the white car that was beside the bus stop.

When asked what she had meant as the point where the pickup truck had entered the intersection, she marked on the photograph with a big “X” a point where the intersection for her would start for southbound traffic and placed the big “X” south of the pedestrian crosswalk in line with the north curb line of Bristol Road and south of the pedestrian crosswalk. [ 106 ] Furthermore, Ong said she had been in the left-turn lane when the bicyclist had crossed in the crosswalk.

She also said that when she first saw the truck it had been stopped and then she heard the loud sound of an acceleration, which she knows to be the sound of a car accelerating because her husband used to drive a car with a V8 engine. In addition, she said that when she heard the acceleration sound her attention had been drawn to the truck, but her attention had not been on the truck until she had heard the acceleration sound. [ 107 ] Ong also said she assumed that the lanes for southbound Hurontario were the same as for northbound Hurontario, which consists of three lanes and a left-turn lane.

She also said the truck had been in the lane immediately beside the bus, which had been stopped in the right lane where passengers had been going in and out. Furthermore, she said the truck had been behind the bus and then accelerated from behind the bus and came around it. She also said she did not see any other cars come towards the south. Furthermore, she said the truck had accelerated from a stopped position to go through the light and that it had been the right side of the pickup truck that had hit the boy. She then said she had observed the boy roll over the right side mirror.

Moreover, she said the cyclist had hit the right side of the hood near the front windshield and then hit the side mirror. [ 108 ] In addition, Ong agreed with the suggestion that memory fades with time. She also said she had been near the intersection when she had first noticed the light had been amber. She also said she had been the first in line in the left lane. In addition, she said she did not come to a screeching stop and always slows down when she gets to the light, and that when she sees a yellow light she said she always slows down.

[ 109 ] Moreover, Ong said she has been at that intersection before and said the yellow light might be four seconds in duration. However, she also said that when the light turns yellow it then goes to red fast. [ 110 ] Ong also said she starts works at 8:00 a.m., but is usually late. However, she does not look at the clock when she is driving. She also said there has been a history of accidents in her family and because her sister is now in a wheelchair, she does not rush. She further said that time had not been a factor for her that day as she has an allowance of 10 minutes to get to work.

She also said that as long as she leaves her house by five minutes to 8:00 o’clock she is okay. [ 111 ] Furthermore, Ong agreed that the intersection is always busy there for vehicles and pedestrians. She further said that students walk or are on bikes there, and that they go back and forth. She also said she pays attention to her surroundings because of what had happened to her sister. In addition, she said she pays attention to cars behind her and said she had looked at the bus only twice. [ 112 ] Moreover, Ong said there were lots of cars on her right-hand side so she could not see the children there.

However, she said when she had reached the intersection on a red light she then saw children frozen in the middle of the intersection. She also said she had been in shock at that time and did not know what to do. However, she said she did call 9-1-1 and had been told by the 9-1-1 operator to drop her son off at school.

(8) Edwin Gilberto Bonilla, a passenger sitting in the rear passenger seat of the pickup truck driven by the defendant [ 113 ] Edwin Bonilla , while testifying through an accredited Spanish language interpreter, said he had been at the intersection of Hurontario Street and Bristol Road on November 24, 2010, as a passenger inside the motor vehicle being driven by the defendant, Benito Scetto. He also said there had been another person with them, named Carlos Manzanares, who was also one of the defendant’s buddies. [ 114 ] Furthermore, Bonilla said that he knows the defendant through his friend, Carlos Manzanares.

Bonilla also said he works for the defendant occasionally, whenever the defendant needs assistance and is called to do work. He also said that he had been working for the defendant on November 24, 2010. Furthermore, he said he would work for the defendant about once a month and that he had been working for the defendant for about four months at that point. Moreover, he said that he has been in the defendant’s truck before. However, after November 2010, he said he has only worked sporadically for the defendant, which has been about once a week.

He further explained that in the last two months before testifying in court, he had worked approximately on three occasions for the defendant. In addition, he said he is also a friend of the defendant. [ 115 ] Bonilla also said that on November 24, 2010, they had been travelling southbound on Hurontario, and as they got close to the traffic light, he said he suddenly noticed a bus at the corner of the intersection. He also said the traffic light had been yellow, and as they were going, someone showed up on a bicycle. He then said they had shouted at the defendant.

Bonilla then said the defendant had tried to pass over to the side, but another vehicle had been beside them, and also because the defendant had a trailer that contains the machines. In order not to hit the car beside them, Bonilla said the defendant had to turn right again. However, Bonilla opined that the collision had occurred because the defendant had been unable to avoid the bicyclist and had hit the bicyclist with the mirror. [ 116 ] Furthermore, Bonilla said the person who had been riding the bicycle had never stopped, but had continued on.

In addition, Bonilla said the bicyclist had been wearing a hood and had headphones on, and also believes the cyclist never saw the truck before the defendant had hit him with the mirror and pushed him to the ground. Moreover, he believes the defendant had tried not to hit the bicyclist with the truck. After the collision, he said the defendant then went through the intersection and stopped by the gas station. In addition, Bonilla said he had been worried because he thought they had hit the cyclist with the trailer, but they had only hit him with the mirror.

Furthermore, Bonilla opined that the defendant did all, or the best he could, in not hitting the bicyclist. [ 117 ] In addition, Bonilla said that he had been seated in the back seat, but right in the middle, and could see clearly from that position.

Furthermore, he said he does not normally sit in the middle in the backseat, but explained that he had moved to the middle so that he could talk to his friend sitting in the front seat. [ 118 ] Bonilla also said the traffic light had been yellow when the defendant’s truck entered the intersection and it had still been yellow when the collision suddenly occurred, and that it had been yellow all along. However, he said that when they had passed the intersection then the light became red, but he did not actually see the light turn red.

[ 119 ] Also , on a rough sketch prepared by the defendant’s legal representative of the intersection of Hurontario Street and Bristol Road while Bonilla was testifying (Exhibit “8”), Bonilla drew a red line with an “X” through it to indicate where he thought the intersection began for southbound traffic and a dotted red

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