R. v. Peek, 2017 ONCJ 766

CITATION : R. v. Peek , 2017 ONCJ 766 DATE: June 22, 2017 Case File No. 4860 999 16 100151-00 ONTARIO COURT OF JUSTICE IN THE MATTER OF THE PROVINCIAL OFFENCES ACT R.S.O. 1990 HER MAJESTY THE QUEEN v. FRANK PEEK ******** P R O C E E D I N G S A T T R I A L BEFORE HER WORSHIP JUSTICE OF THE PEACE C. SHONIKER On Thursday, June 22, 2017 at 60 Queen Street West, TORONTO, Ontario ******** Charge: s. 130 Highway Traffic Act Careless Driving ******** Appearances: Ms. M. Gratta Provincial Prosecutor Mr. J. Logan Counsel for the Defendant ********

THURSDAY, JUNE 22, 2017 R E A S O N S F O R J U D G M E N T SHONIKER, J.P. (Orally): This is the Ruling for the case of R. v. Frank Peek . The Parts of this Ruling are as follows: I. Introduction to the case; II. Law to be applied; III. Factual circumstances and application of the factual test; IV. Application of the law including application of the defence of due diligence and the legal tests to be applied; V. Finding of this Court. I. INTRODUCTION The Defendant, Frank Peek, is charged with having driven carelessly on the date of December the 15 th , 2015, in the City of Toronto, contrary to

section 130 of the Highway Traffic Act . This

section of the Highway Traffic Act reads as follows: Careless Driving - Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 [sic] and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years. Mr.

Frank Peek is alleged to have driven carelessly while he was operating a TTC (Toronto Transit Commission) bus in about the area of Hospital Road and Raab Boulevard; and, in so doing, struck a pedestrian, Ms. Ella Loucks, as she crossed the roadway on Raab Boulevard near the Veterans building at approximately 2:00 p.m. on that date. Today is the second day of the hearing. Today’s date was set for this Ruling to be delivered by the Court. The first date of the hearing was May 29 th , 2017, just a couple of weeks ago. Defendant Frank Peek is represented by counsel, Mr. Logan. Prosecution was last represented by Mr.

Vandersteen (ph) from the Crown’s office, and Ms. Gratta from the Prosecutor’s office today. On the earlier date of this hearing, the Prosecution presented its case through three witnesses: First, although not in order: Ms. Ella Loucks, the pedestrian who was struck by the vehicle. Second, a police officer, John Cruz, who provided his own direct information as well as the photographs of the scene taken by fellow officer Vanderburg sometime after the accident, but on the same date. The presentation of the photographs and the exhibits through this officer was agreed by both Crown and Defence. Third, Ms.

Brenda Lewsen, who was a civilian on scene a short time after the collision happened. She worked at the time as a rehabilitation services manager in the nearby Veterans building, which was on the north side of Raab Boulevard and the Hospital Road curbed T intersection.

In addition to the testimony of the witnesses, the Prosecution entered a number of exhibits as follows: Exhibit 1 – a Google map, aerial view of the roadway and building area; Exhibit 2A – a photograph of the Hospital Road where it meets with Raab Boulevard; Exhibit 2B – a photograph of Hospital Road before its fairly sharp road curve way towards Raab; Exhibit 2C – a photograph depicting the side of the bus – one side of the bus and closer to Veterans building; Exhibit 2D – a photograph of roadway area including a blood stain or what appears to be a blood stain on the roadway; Exhibit 2E – a photograph showing a front angle open door of the bus and what appears to be a blood stain on the roadway a distance

away. In this photograph the blood stain appears not to be directly in front of the bus, but rather diagonally and off to the side. Exhibit 2F – a view from the front breezeway entrance of Veterans Building showing two huge or very large clay pots for the wintercedar arrangements; and which photograph also shows the curved glass or see-through plastic shelter, smaller but like a bus shelter. Thisstructure is shown in the photograph to be located to the east of the breezeway entrance exit, and closer in proximity to the centre point ofthe curved T intersection at Raab and Hospital.

As stated, these photographs of the scene were taken by PC Vanderburg, but provided through the evidence of police officer John Cruzas exhibits for this trial. The Prosecution also entered into evidence an exhibit which was a video disc containing TTC camera footage, including footage for aperiod of about 28 minutes of driving by Defendant Frank Peek leading up to the collision and just going past in time of the accident. The cameras from which this footage came were said to be located inside the TTC bus.

One can see by the angle of the footage and theirviewpoints that the cameras within the bus were either located at the front of the bus, but angled back within the bus; or, back of the busangled toward the front inside of the bus; and middle of the bus angled to the middle doorway area. There was no camera at the front ofthe bus capturing the image towards the roadway as the TTC driver, Peek, would have viewed the roadway in front of him at this time, orat the time of the collision and at the time of his driving. Defendant Frank Peek answered the charge against him by his own testimony.

Peek argued that when driving his bus on that date,despite the accident, he had exercised due diligence and due care and attention to the other users of the roadway. His defence of duediligence needed to raise or leave a doubt on a balance of probabilities. After the Court testimony of both Crown and Defence witnesses was complete, the Court heard the submissions of Crown and Defence. In the course of those submissions, reference was made to the following cases. Madam Clerk, I’ll give you the citations afterwards sothat they can be properly listed. CLERK OF THE COURT: Okay, thank you. THE COURT: R. v.

Shergiel, R. v. Kinch, R. v. Beauchamp and R. v. Globocki. II. THE CASE LAW TO BE APPLIED These cases made it quite clear that the test as to whether a driver of a motor vehicle has driven carelessly is both a legal test as well as afactual test. The test is whether it has been proved beyond a reasonable doubt that, in light of all of the circumstances of which theDefendant was aware or should have been aware, he or she failed to use care and attention, or failed to give to other users of the road theconsideration that a driver of ordinary care would have given. (R. v. Globocki [1991], CarswellOnt, 2.

Also cited at [1991], O.J. No.214, by now Superior Court Judge MacDonnell, sitting then for the Ontario Court of Justice.) We are going to pause the Judgment for a moment. (CLERK MONITOR’S NOTE: The Defendant’s matter is held down while other matters are dealt with, duly recorded, but nottranscribed for the purposes of this transcript.) THE COURT: All right, so just going back, returning to this Judgment.

The legal standard of care always remains the same, insofarthat it is what the average careful man would have done in like circumstances; but, the factual standard is a constantly shifting onedepending on road, visibility, weather conditions, traffic conditions that exist or may reasonably be expected, and any other conditionsthat ordinarily prudent drivers would take into consideration. It is a question of fact depending on the circumstances in each case. (R. v.Beauchamp, (ON CA), [1953] CarswellOnt, 11, [1952] O.J. No. 495, Ontario Court of Appeal, J.K. MacKay and F.G.MacKay).

Careless driving is a strict liability offence which does not require proof of an additional element of blameworthiness or a higher degreeof culpability. All that is required is proof that the accused committed the prohibited act and therefore breached the standard of conductrequired by the

section that creates the offence (R. v. Morrison, supra). Actually, I will give you the full citations in a few moments, okay, Madam Clerk? CLERK OF THE COURT: Thank you. THE COURT: The law in this regard has changed from the earlier test re culpability as espoused in R. v. Beauchamp, earlier cited,again at (ON CA), [1953], CarswellOnt, 11. Therefore, today’s – the present position of the law is careless driving no longer should be considered in terms of driving in any waydeserving of punishment in order for it to be objectively considered as careless. (R. v.

Morrison, [2002] Carswell, Yukon, 90, also at2002, YKCA, 15. Finch, CJBC, Donald Low, JJ. A., the Court of Appeal) The decision of the Court of Appeal in Beauchamp continues to be instructive regarding other aspects for legal consideration in thesetypes of cases. For instance, as the Ontario Court of Appeal stated in Beauchamp, “It is still correct to hold that, nor, does the law requireof any driver that he should exhibit perfect nerve and presence of mind enabling him to do the best thing possible.” “It does not expectmen to be more than ordinary men.” As Judge MacDonnell, stated in R. v.

Globocki, The statute requires that the defendant’s driving be measured against the standard of care that an ordinarily prudent driver would haveused in the circumstances faced by the defendant. This is not a standard of perfection. In R. v. Shergill, [2016], CarswellOnt, 4638, the Honourable Justice Epstein addressed the issue, “Is ‘momentary inattentiveness’ a defence to careless driving?”, going on to state, Again, the answer depends on the circumstances of each case.

If, given all of the surrounding circumstances, momentary inattendance[sic] by a driver does not constitute a departure from the due care and attention or reasonable consideration demanded of an ordinarilyprudent driver, then it cannot constitute the offence of careless driving and is not punishable. [Nor are] drivers of vehicles...required to regulate their driving as if in constant fear that other drivers who are under observation, andapparently acting reasonably and properly, may possibly act at a critical moment in disregard of the safety of themselves and other usersof the road. (R. v.

Beauchamp, paras. 20 and 21]. This Court will next look to apply these legal concepts. However, this Court will first look at the factual test to be applied to all thecircumstances of the present case; and, then, also look at the application of the legal test in the context of the factual test and thecircumstances. III. SURROUNDING CONSIDERATIONS IN APPLICATION OF THE FACTUAL TEST IN THE PRESENT CASE This Court will consider the driving of the Defendant, Peek, most especially the driving just prior to and at the time of the collision whenit is particularly alleged that he was driving in a careless manner.

This Court will look at what was going on at that approximate time,including circumstances of this driver, climate, roadway, pedestrian, physical scene and the surroundings.

MS. ELLA LOUCKS Ella Loucks was struck crossing Raab Boulevard from an area in front or south of the curb of the Veterans building curb. There was actually two curbs in front of that building, the one that attached to the turnabout curb for the Veterans building, and the secondary curb south of Veterans building that attached to Raab Boulevard. She was struck as she was moving to cross the street to the other side of Raab, whereabouts there was second-level open parking lot and other parking areas. It was not clear from the testimony of all witnesses, particularly the testimony of Ms.

Ella Loucks, where exactly she had walked and in what direction after she had excited from the Veteran building and before stepping onto the roadway. It was also not clear from her testimony whether she went straight, perpendicularly and in a straight angle, across the two-lane Raab Boulevard, (one lane in either direction east and west), or whether she crossed somewhat diagonally. She was unsure in her testimony where she had parked her car, and in what direction she would have been travelling on foot in order to locate her car.

She talked about remembering that she had parked her car that day in a grassy area, but she could identify no such grassy area on the exhibit “Google map aerial view” in answer to the Crown’s questions. When asked by the Crown, she could not remember where she had parked that day, and she could not identify either her foot route or where her car was exactly parked.

Therefore, there was no evidence, verbally by her testimony, or otherwise, more precisely about which direction and location she had come from and leaving the Veterans building, and more precisely where she was going to and in what direction when she was about to or in the process of crossing the street. Also, it was also not clear how slowly or quickly she moved to cross the street. The exhibit camera footage of Ms. Ella Loucks captured her (or what is believed to be her, and accepted to be her by Crown and Defence) for less than a second or two before she was struck by the TTC vehicle.

For these very brief few moments in time, the camera footage captured a dark small form in the roadway, moving. The form is a person, but the footage is too limited to show, too limited in time and camera angle and width to show from where she came, what direction she was heading, what angle she was crossing over the street, and what was her speed relative to anything else in the setting. In fact, only two of the four cameras actually captured anything of Ms.

Loucks, and Cameras 2 and 4 were positioned from the middle to the back area of the bus, angled forward, and well behind where the driver, Frank Peek, was seated. Therefore the camera footage showed a different line of vision and distance than that between the driver’s seat and the pedestrian in the roadway. In fact, when asked by the Crown prosecutor, Mr. Vandersteen, to identify who was the person crossing the street in that moment, Ms. Ella Loucks herself was not able to identify this person as being her. Ms. Ella Loucks was 90 years old in 2015, although seemingly incredibly well for her age.

She was then, as now, able to walk without assistance and without mobility support – or mobility device support. She indicated in her testimony that she could walk unassisted, but not for long distances on her feet. When she left the Veterans building that day, she had been at a party function with her husband. She described being busy on her feet, pushing him in his wheelchair there and back to his residential unit and the party within the building. Ms.

Ella Loucks was then, as she is now, a petite woman, by the Court’s observation certainly not standing more than five feet and likely not more than about a hundred pounds, perhaps slightly more. She was dressed that day entirely in black or dark clothing, as could be seen in the camera footage, except perhaps for the colour white or light on the top or bottom sole of the shoes. In her testimony she accepted what was agreed by the Crown and the Defence, that the person seen for this instant on the camera, thrown after some manner of contact with the bus, was in fact herself.

She had a hard time recognizing herself on seeing the camera footage, because she said that she would most certainly never wear white shoes with an all-black slacks or skirt, and that she remembered herself to be blonder hair not darker at the time, as seemed to be depicted by the camera footage. Ms. Ella Loucks testified that there was a group of people under a shelter of some kind. She described this shelter like a temporary shelter, maybe something set up or placed for the persons attending the party.

She described this shelter as something she believed to have been used for persons waiting for transit pick-up. If one looks to Exhibit 2C, although not specifically pointed out and identified by her, what she described is likely the see-through glass- covered curve shelter - a small shelter that is shown in this photograph in front of and just to the east of the main breezeway doorway of the Veterans building.

She testified that she does not remember if she joined the group of people standing around the shelter area temporarily, or whether she more directly passed right through the crowd in going to the curb of the roadway. Because Ms. Loucks talked about coming from around the shelter area, if she were then to have crossed, she would then have crossed more diagonally into and potentially towards the centre of the curved T intersection of Raab Boulevard and Hospital Road. She testified that she, “Assumed that the bus would stop” because of the people standing at the shelter.

She thought the bus would stop - assumed that it would stop - because of those persons standing at or near the shelter waiting to be picked up. She said she therefore stepped off the curb, believing that the bus would stop, presumably before it reached her. However, somewhat in contradiction to that part of her testimony, she also said that she looked both ways before crossing and did not seeing anything before she stepped off the curb.

She testified that her stepping off the curb was the last thing that she could remember, not specifically recalling or having a memory for how or why she was struck by the TTC vehicle. She testified that she looked, “Both ways”, and saw that nothing was coming, so she stepped off the off the curb to cross. But, being just south and west of the curved T intersection of Raab and Hospital, she would have had to look east and west (i.e. to her both sides) but also south, within the curved T intersection of Hospital and Raab to see everything that was coming within the direction of her.

Part of her testimony, therefore, suggested that she looked and assumed the bus was stopping. But part of her testimony suggested that she did not look all ways, in every direction, and therefore did not see the bus at all to have made such an assumption that there was a bus and that the bus was going to stop. By the testimony of Officer John Cruz, as well as the exhibits and other testimony, it was understood and agreed that Ms. Ella Loucks was jay-crossing or jaywalking.

There was no crossover whatsoever for pedestrians in that part of the roadway, and there was no crossover for pedestrians on any side immediately adjacent to the curved T intersection of Raab and Hospital. In fact, the only crossovers to go from the Veterans side of Raab, the north side, to the south side of Raab, were east and away from the T intersection, and west, and an even further walk away from the curved T intersection. The pedestrian lines for both crossovers can be seen on the Exhibit “Google Map Aerial Photograph”.

Furthermore, there was only testimony about stop signs facing Hospital Road, as the drivers move onto Raab Boulevard. Let me repeat that again, Madam Clerk. CLERK OF THE COURT : Thank you. THE COURT : Furthermore, there was only testimony of stop signs facing Hospital Road drivers as they move onto Raab Boulevard. There was no testimony, there was no evidence of stop signs facing drivers moving east and west at this particular curved T-intersection part of Raab and Hospital. Further, in respect to Ms.

Ella Loucks’ testimony, she said that she had gone into the Vets building that day through a different door than the one from which she exited that day. She said that prior to that date of December the 15 th , she had been going to the Veterans Hospital for approximately three years to visit and care for her husband, who suffered from paralysis. She said that in the approximate three years that she had been going daily to the Vets building, she parked every day in one area and was able to go through a the side door of the building every day without crossing over Raab Boulevard.

She said that on this particular date of December 15 th , she was parked in a parking space location that she was not familiar with; and that she walked in and out of the building that day using a walking route that she did not normally use. This was due to the fact that the special party that day created a special parking area that had been set aside for the cars and the persons attending at that party, as described by Ms. Loucks. Therefore, it seemed, she would have been unsure and somewhat disoriented at that time of making her way out of the building and onto the roadway in an effort to find her car.

This disorientation was consistent with a level of some confusion and uncertainty in her court testimony about the events which lead up to the collision. MR. FRANK PEEK Defendant Frank Peek indicated on the date that he had been driving for about one and a half hours before the collision on a split shift arrangement. He indicated that he was very familiar with this route as he knew it as a TTC driver, but also because he knew it as a cancer survivor, having been a patient at that very hospital for quite some time.

He indicated that he was familiar with the workings and operations of his vehicle, the TTC bus; and, that he had operated this vehicle for quite a length of time up to that date, as well as having

operated different types of TTC vehicles in the his past 25 years of more with the TTC, such as a street cars, subways. In the 20 or so minutes leading up to the collision and stop of the vehicle, the Defendant Mr. Frank Peek was seen on camera driving and attending to the operation of the bus, and his passengers, without distraction. There was no suggestion that Frank Peek was driving above the speed limit. There was no suggestion of sudden stop or starts in his driving, consistent with the movement of passengers easily getting onto and exiting off of his bus in the 10 to 20 minutes leading up to the collision.

In Peek’s testimony, and as can be seen from some of the TTC camera footage which picked up part of what was going on outside of his vehicle on the roadway, a five-ton truck made a right turn from the wrong lane in front of and across the path of his bus. This turn by the five-ton truck was a left turn across the path of the bus in front of the path of the bus, illegally upon reaching the stop signs at Hospital Road and Raab Boulevard. Prior to that moment, both the bus and the five-ton truck had been travelling northbound on Hospital Road approaching Raab.

The Crown’s main argument for the charge of careless driving is based in large part that defendant Peek did not come to a long enough stop at the stop lines and signs before commencing his left turn to go west onto Raab. Defendant Peek indicated that he did come to a stop, albeit not for so very long, maybe a couple of seconds, but long enough for him to look in all directions to see that he could proceed safely. Defendant Peek indicated that he stopped at the stop lines, just about the same moment as the five-ton truck turned ahead of him illegally and to the east, or right.

Peek described using a “feathered stop” at the stop lines of the intersection of Hospital and Raab, before starting again and turning. He described using a “feathered stop” as a manner of stopping his vehicle, his bus, because of the weight of the bus, the decline in curve of the roadway at that location where Hospital meets Raab, and so as to avoid a more abrupt stoppage, which can lead to on-board accidents and injuries to passengers.

Defendant Peek also described that the bus’s frame or tress, which is part of the framework of the bus to the left part of the driver’s front window that is fairly wide and creates a blind spot. Defendant Peek indicated that he was in the practice of looking around and compensating for this, since even something as large as a Smart Car can sometimes – can potentially be completely hidden within the width of the tress to the side of the driver’s window.

Defendant Peek looked and turned in a controlled fashion, at what seemed to be a controlled speed, when it could be seen by the inside TTC camera that a quick stop of the vehicle occurred. There was no one thrown in their seats, although passengers could be seen swaying quickly forward and back within their seats and/or on their feet. There was no squealing of the brakes or exaggerated effort to be able to come to a stop, just a quick stop by Peek with his bus now partially within the box of the curved T-intersection. As Peek testified, contact with the bus was quick.

He said that his reaction time was quick and believed that it was contact with the bike rack at the front of the bus which hit Ms. Loucks, throwing her forward, where she was seen landing on the ground. Again, as Peek had only partially made the turn onto Raab, and judging from the exhibit photographs of the stationary bus after the collision, most of the bus had not moved through the turn yet and onto Raab. No persons appeared by the camera footage to be in any distress in the bus.

Peek quickly opened the door, had already pressed the emergency button, and hurried out of the bus to attend to the person fallen on the roadway, Ms. Loucks. One witness for the Prosecution, Ms.

Brenda Lewsen, who was on scene at or shortly after the time of the collision indicated that she heard Peek say something like, “I did not see her.” Consistent with this utterance on scene, Peek said in his testimony that he now thinks that she was caught in the blind spot of the tress and walked potentially at the same speed with which the bus was turning so as to have stayed in that blind spot for the brief moment in time until contact.

This is of course what Peek hypothesized after the fact, but at the time and now more simply stated, “I did not see her at the time of turning.” WEATHER, ROAD, AND PHYSICAL FACTORS Although Ms. Ella Loucks suggested that it was winter and a wintry, snowy day, the Defendant and Police Officer John Cruz, as well as the photographs, suggested that it was dry and without snow and precipitation, although jackets could be seen on the bus passengers by the TTC footage. Looking at the photographs, it did seem to be clear and dry.

The exhibit photographs in this trial provided a lot of information about the roadway and the structural conditions in that area for driving, considered in the context of Peek’s driving and the accident.

The Court recognizes, by the photographs and the testimony of the Defendant, there were challenges to driver and pedestrian users of the roadway near Raab Boulevard and Hospital Road - in part by its design and its structural aspects as follows: 1 ) The decline of the roadway of Hospital Road to the Raab Boulevard intersection. 2 ) The side-by-side two two-lane roadways, so double two-lane roadways, side by side, both meeting Raab, one being Hospital Road and the other the roadway from the elevated – from the parking lot area. 3 ) Next, the double arrow road signs on Hospital Road, which may have accounted for the confusion of the wrong turn in front of the bus by the five-ton truck. 4 ) Fourth, the curved and crooked angles of most all manner of things within the curved T intersection at Raab and Hospital.

This can best be seen from the Google map aerial view exhibit, which showed that Raab roadway curves even within the intersection, the T intersection.

That same photograph showed the crooked sidewalk, and showed the crooked stop lines that run from the west to the east side of Hospital at the intersection, but which are not parallel or perpendicular to Raab. 5 ) The minimal width and area for the bus or large vehicle to make a left-hand turn into the one lane of Raab Boulevard that travels west, causing the bus to practically cross over and into the Raab eastbound lane near that intersection. 6 ) The location of pedestrian crossovers in areas away from the front of the Veterans Hospital, and not there for the Veterans visitors, or for the veterans themselves. 7 ) The three stop signs facing the drivers travelling northbound on Hospital Road and coming northbound from the parking lots on that parallel roadway, but no other stop signs along Raab for east or west at this curved T-intersection location.

Crown Vandersteen suggested in his submissions that this was an all-way stop, but this evidence was never elicited from any witnesses in their testimony, and the suggestion by the Crown in his submissions does not constitute evidence. It seemed also to be contrary to what the exhibit photographs show. Closely looking at the exhibits, their angles and coverage seemed to suggest the stop signs were not all- ways stops, that this intersection was not an all-way stop.

Furthermore, the roadway markings at this intersection, at the spot where the accident occurred, as evidenced by the exhibit Google map and other photographs, did not suggest a 4- or all-way stop at this intersection. All of this roadway business seemed to be very good reason for a pedestrian crossover to absolutely not be in the area where Ms. Loucks unfortunately herself tried to cross over. Finally, also, from the information depicted by the photograph exhibits, there were challenges with the external environment of the accident scene insofar as the building and the background where Ms.

Loucks came from before she went to cross over the street. Exhibit 2C showed that just in front of where the bus was turning, one can see the marking of blood on the ground somewhat perpendicular ly in front of the curved waiting-shelter that she described – but which Ms. Loucks but did not identify. The photo showed a huge or large building-size potted ceramic clay pots in this area with Christmas evergreens coming out of them. These are people-size pots. These are pots that were almost the same size as Ms. Loucks.

It showed also the darkness of the glassed windows which created a mostly dark background for the building and a black backdrop to Ms. Loucks. Furthermore, Ms. Loucks was somewhere in this area in front of the building, petite and dressed entirely in black against the dark

window lining of the front of Vets building, when she moved towards the roadway. Whether or not her small, moving, darkly clothed frame was hidden by the bus tress or camouflaged or obscured by the planted pot, or the dark background to the windows of the Vets building, or hidden by other people of the group of people near the shelter that she was possibly coming through and from, she likely would not have been easily seen or much to have been seen, particularly and significantly at a place entirely unexpected and reasonably believed by Mr. Frank Peek that she would not be crossing at. IV.

APPLICATION OF THE LAW This Court asks whether the Crown has proved beyond a reasonable doubt the Defendant, Frank Peek, failed to exercise the care and attention expected from a reasonably prudent driver on the roadway. This Court finds that the Crown has not proved this to be so. The test is whether it has been proved beyond a reasonable doubt that, in light of all of the circumstances of which the Defendant was aware or should have been aware, he failed to use the care and attention, or failed to give to other users of the road the consideration that a driver of ordinary care would give.

In this Court’s view, what happened to Ms. Ella Loucks was an accident that occurred due to the events and circumstances of that day and place, and the way in which those circumstances and events unfortunately aligned at that particular moment, at that particular place, on that particulate date. In this Court’s view, it is entirely reasonable that he did not see her, and should not have been expected to have seen her there, at the same time he was driving in a manner which was objectively prudent and reasonable.

In applying the legal test and the factual test in this case, the Court finds that in taking into account what was expected of a reasonable driver in the context of this situation factually and as a whole, this Court finds the Defendant Peek did not drive carelessly. This Court accepts that on a balance of probabilities he has shown that he exercised due diligence and showed an objectively reasonable and appropriate level of consideration of other users of the roadway, including pedestrian Ms. Ella Loucks.

Finally, the Crown argued that, had he stopped longer at the curved T intersection, he would have seen her and the accident to Ms. Ella Loucks would not have happened. The Crown argued that the accident itself is the outcome and in effect proof, at least to some degree, of careless driving. Whether the accident would have occurred had he made a longer stop may or may not be true. The Court cannot and does not know the answer to this. Arguably the accident would also not have occurred had Ms.

Loucks not been jaywalking into the middle of the T-intersection where there was no pedestrian walkways or crossovers whatsoever, and where the street crossing at that point meets another at an odd curve and downward slope; and, had Ms. Loucks not been in the state that she was in at the time, being unfamiliar with her walking route, manner of access that day to the building and her parking location. But actions by her are also not determinative of whether or not Defendant Peek can and should be found guilty of careless driving.

As stated again by the Ontario Court of Appeal in Beauchamp , paras. 20 and 21 : Drivers of vehicles cannot be required to regulate their driving as if in constant fear that other drivers [in this case also pedestrians] who are under observation, and apparently acting reasonably and properly, may possibly act at a critical moment in disregard of the safety of themselves and other users of the road. And the Court goes on to say, But the law does insist upon a reasonable amount of skill in the handling of a vehicle which is a potential source of danger to other users of the road.

The question always is, ‘What would an ordinary prudent person in the position of the plaintiff have done in relation to the event complained of?’ (Pollock on Torts using the term "average man".) I’ll give you the citation to that later, Madam Clerk. CLERK OF THE COURT : Thank you. THE COURT : The case law establishes that,

Whether or not the driving behaviour of the defendant at the critical time was flawless, I am not satisfied that it sufficiently departed from the relevant standard of care as to render her or him guilty of the offence of careless driving. (As stated by Judge MacDonnell in R. v. Globocki , supra .) Furthermore, as stated by the Ontario Provincial Justice in R. v. Pyszko , [1998], O.J. No. 1218 , In cases involving accidents, the gravamen of the offence is whether the prosecution established the accused was driving carelessly, and not the consequences of the driving.

Either way, the consequence of the driving or the accident with Ms. Loucks in this case is not determinative a whether at the time Defendant Peek was using reasonable care and attention on the roadway. VI. THE FINDING OF THIS COURT On this Court’s consideration of all the evidence, submissions of Crown and Defence and its application of the law, this Court finds that the case was not made out that the Defendant, Frank Peek, drove carelessly. It is truly unfortunate that the accident happened. It is unfortunate mostly especially for Ms. Loucks., but also unfortunate for Mr. Frank Peek.

The Defendant is found not guilty of the charge. MR. LOGAN: Well, thank you very much, Your Worship, for your time. THE COURT: Thank you. All right. So we’ll – you’re excused. Thank you very much, counsel. MR. LOGAN: Just before I leave, Your Worship, and of course this is not reflective of the result, but I was very impressed with the detail and the care and consideration you put in applying the law to the facts. I was very impressed, Your Worship. Thank you. THE COURT : Thank you very much, sir. MR. LOGAN: I appreciate that. THE COURT: Sort of a detail person. Take care of yourselves. MR.

PEEK: Thank you very much, Your Honour. THE COURT: Mr. Peek, best wishes to your health, sir. MR. PEEK: Yeah, well, there was two victims unfortunately that day, Your Honour. THE COURT: There always is, sir. Thank you. MR. PEEK: Thank you very much.