R. v. Gill, 2012 ONCJ 473

Citation: R. v. Gill , 2012 ONCJ 473 IN THE MATTER OF the Highway Traffic Act, R.S.O. 1990, c. H.8 Between Her Majesty The Queen prosecutor and Dhan Singh Gill defendant Ontario Court of Justice Brampton, Ontario Quon J. P. Reasons for Judgment Charge: s. 142(1) H.T.A. – “right turn not in safety”, Trial held: February 22, 23, and 29, 2012. Judgment rendered: July 16, 2012.

Counsel: J. Quirt, assistant Crown attorney P. Dhaliwal, counsel for the defendant Cases Considered or Referred To: Flynn v. Saunders, [1947] O.J. No. 127 (QL) (O.H.C.), per Barlow J.; affirmed [1947] O.J. No. 305 (QL) (O.C.A.), per Robertson C.J.O.,Laidlaw and Roach JJ.A. R. v. Belovari, [1996] O.J. No. 5009 (QL) (O.C.J.), per Tisi J.P. R. v. Dillman, [2008] O.J. No. 1120 (QL), 68 M.V.R. (5th) 272 (O.C.J.), per Duncan J. R. v. Drljevic, 2010 ONCJ 188 (O.C.J.), per Dechert J.P. R. v. Hamid, [2008] O.J. No. 2059 (QL) (O.C.J.), per Quon J.P. R. v. Jackson, 2010 ONCJ 487 (O.C.J.), per Quon J.P. R. v.

Mouland, 2011 ONCJ 390 (O.C.J.), per Dechert J.P. R. v. Pereira, 2009 ONCJ 222 (O.C.J.), per Dechert J.P. R. v. Trevisan, [2009] O.J. No. 606 (QL) (O.C.J.), per Dechert J.P. R. v. Sault Ste. Marie (1978), (SCC), 40 C.C.C. (2d) 353 (S.C.C.). Statutes, Regulations and Rules Cited: Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 1(1), 140(1)(a), 140(4), 142(1), 144(7), 144(19), 144(22), 144(26), and 144(28). Reference Material Cited:

Bryant, A.W., Lederman, S.N. and Fuerst, M.K. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham, Ontario: LexisNexis Canada Inc., 2009 ). Exhibits entered: Exhibit "1" - letter of Mathew Alcock, Traffic Signals Technologist, dated December 20, 2010, to Cst. Ken Wright of the Major Collision Bureau of Peel Regional Police, providing the traffic light or signal timing for the intersection of Torbram Road at East Drive/Walker Drive, in the City of Brampton, for PM peak period for weekday for 1500 to 1900 hours (admitted on consent as evidence without proof) (1 page).

Exhibit "2" - blank not-to-scale schematic sketch or map with bird’s eye view of intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, drawn by Cst.

Wang on December 1, 2010, for file 2010-213402, in which Gordon Rockett marked the direction of where he had observed the route the transport truck, which had been involved in the collision with the pedestrian, had been travelling northbound on Torbram Road with a red line and arrow; and marked the location of where he observed the pedestrian in the eastside crosswalk on Walker Drive when the collision occurred with a red asterisk; and indicated that the red asterisk that was drawn near the east line of the pedestrian crosswalk lines was a distance of 10 feet from the southeast curb with red lettering; and drew a red rectangle indicating where his vehicle had been stopped when he was facing westbound on Walker Drive in the designated left-turn lane, which he labeled as the “Rockett car” in red lettering (1 page).

Exhibit "3" - blank not-to-scale schematic sketch or map with bird’s eye view of intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, drawn by Cst.

Wang on December 1, 2010, for file 2010-213402, in which Joven Ramirez marked with a red square where the vehicle he was a passenger in was stopped when facing westbound on Walker Drive in the designated left-turn lane and which he had labeled in red letters the name “Joven”; marked the location of where he observed the route the transport truck, which had been involved in running over the pedestrian, had been travelling northbound on Torbram Road had turned with a red line and arrow; and marked with a red asterisk where he observed the impact of the transport truck with the body lying on the road; and marked with black dot where he observed the pedestrian’s body lying on Walker Drive; and indicated the direction the transport truck went eastbound on Walker Drive with a second red line and arrow (1 page).

Exhibit "4" - blank not-to-scale schematic sketch or map with bird’s eye view of intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, drawn by Cst.

Wang on December 1, 2010, for file 2010-213402, in which Glen Pollock indicated with a red mark where the vehicle he was a passenger in was stopped when facing westbound on Walker Drive in the designated left-turn lane and which he had labeled in red letters the name “Glen” to identify the vehicle; and marked the location of where he observed the route the transport truck, which had been involved in running over the pedestrian, had been travelling northbound on Torbram Road and then travelled eastbound on Walker Drive with two red lines and arrows; and marked with a red “X” where he first observed the pedestrian in the eastside crosswalk on Walker Drive in which he had actually marked the red “X” outside the crosswalk lines; and then after being informed that the two parallel lines on the eastside of the intersection depicted the crosswalk he subsequently marked a black “X” with a black circle to indicate he had observed the pedestrian within the crosswalk, at the east edge of the crosswalk (1 page).

Exhibit "5" - resume dated January 4, 2012, of Adrian Hamill, manager of fleet sales at Harper Truck Centres Inc., who was qualified as expert witness for the identification of makes and models of Freightliner trucks (1 page). Exhibit "6" - logs and driver details from Friday, November 26, 2010, to Wednesday, December 1, 2010, of truck W3036 driven by Dhan Gill (92405) from TTR Transport records dated December 12, 2010 at 15:25 (1 page).

Exhibit "7 - chart of satellite positioning with latitude and longitude and description of location of truck W3036 driven by Dhan Gill at certain times from TTR Transport for the period from 12/01/10 00:00:00 EST to 12/01/10 23:59:59 EST (1 page).

Exhibit "8A" - colour photograph for file 2010-213402 taken on December 1, 2010, by Peel Regional Police Forensic Identification Service of the intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, where the viewpoint is looking north from the southside of Torbram Road and showing two transport trucks stopped and blocking the intersection, as well as a bus shelter on the eastside of Torbram Road.

One truck is northbound in the designated right-turn lane for northbound Torbram Road on the southside of the intersection and the other truck is eastbound on Walker Drive in the middle of the intersection (1 page).

Exhibit "8B" - colour photograph for file 2010-213402 taken on December 1, 2010, by Peel Regional Police Forensic Identification Service of the intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, where the viewpoint is looking north on the southside of Torbram Road showing two transport trucks stopped and blocking the intersection. One truck is northbound in the designated right-turn lane for northbound Torbram Road on the southside of the intersection and the other truck is eastbound on Walker Drive in the middle of the intersection.

Also visible is the body of the pedestrian lying on Walker Drive that is covered with a yellow tarp (1 page). Exhibit "8C" - colour photograph for file 2010-213402 taken on December 1, 2010, by Peel Regional Police Forensic Identification Service of the intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, where the viewpoint is looking south from the middle of the intersection of Torbram Road showing a red transport truck eastbound on Walker Drive and a white transport truck northbound in the designated right-turn lane of Torbram Road.

Both trucks are stopped and blocking the intersection (1 page). . Exhibit "8D" - colour photograph for file 2010-213402 taken on December 1, 2010, by Peel Regional Police Forensic Identification Service of the intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, where the viewpoint is looking east from the westside of the intersection of Walker Drive and showing a transport truck eastbound on Walker Drive and a white transport truck northbound on Torbram Road. Both trucks are stopped and blocking the intersection (1 page).

Exhibit "8E" - colour photograph for file 2010-213402 taken on December 1, 2010, by Peel Regional Police Forensic Identification Service of the intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, where the viewpoint is looking west from the eastside of the intersection on Walker Drive showing a transport truck eastbound on Walker Drive and a white transport truck northbound on Torbram Road. Both trucks are stopped and blocking the intersection.

In addition, a vehicle that was being driven by the witness Gordon Rockett is shown stopped in the designated left-turn lane for westbound Walker Drive on the eastside of the intersection. In addition, the body of the pedestrian lying on Walker Drive covered with a yellow tarp is visible in front of the northbound transport truck (1 page). Exhibit "9" - blank not-to-scale schematic sketch or map with bird’s eye view of intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, drawn by Cst. Wang on December 1, 2010, in which Cst.

Elson during his testimony marked where the two transport trucks he had observed stopped in the intersection. One transport truck is marked with a red rectangle in the middle of the intersection facing eastbound, north of the northbound lanes of Torbram Road and labeled with the word “red”. The other transport truck is marked with a red rectangle and labeled with the words “white” and the letter “S” facing northbound in the designated right-turn lane of northbound Torbram Road and straddling the pedestrian crosswalk on the southside of the intersection on Torbram Road (1 page).

Exhibit "9A" - colour photograph for file 2010-213402 – MVC Pedestrian Fatality - taken on December 1, 2010, by Peel Regional Police Forensic Identification Service of the intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, where the viewpoint is looking north from the southeast corner of the intersection of Walker Drive showing the location of the deceased pedestrian lying on the road surface in the eastbound lane of Walker Drive, east of the pedestrian crosswalk situated on the eastside of Torbram Road (1 page).

Exhibit "9B" - colour photograph for file 2010-213402 – MVC Pedestrian Fatality - taken on December 1, 2010, by Peel Regional Police Forensic Identification Service of the intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, where the viewpoint is looking north from the southeast corner of the intersection of Walker Drive showing the location of the deceased pedestrian lying on the road surface in the eastbound lane of Walker Drive, east of the pedestrian crosswalk situated on the eastside of Torbram Road (1 page).

Exhibit "9C" - colour photograph for file 2010-213402 – MVC Pedestrian Fatality - taken on December 1, 2010, by Peel Regional Police Forensic Identification Service of the intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, where the viewpoint is looking south from the northeast corner of the intersection of Walker Drive showing the location of the deceased pedestrian lying on the road surface in the eastbound lane of Walker Drive, east of the pedestrian crosswalk situated on the eastside of Torbram Road (1 page).

Exhibit "9D" - colour photograph for file 2010-213402 – MVC Pedestrian Fatality - taken on December 1, 2010, by Peel Regional Police Forensic Identification Service of the intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, where the viewpoint is looking east from the middle of the intersection of Walker Drive showing the location of the deceased pedestrian lying on the road surface in the eastbound lane of Walker Drive. Also, there is a posted speed limit sign for Walker Drive for 50 k.p.h. (1

page). Exhibit "10" - computer generated to-scale map or diagram for file 2010-213402 of the intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton drawn by Constable Teetzel #2295 dated December 1, 2010 (1 page). Exhibit "11A" - colour photograph for file 2010-213402 labelled Autopsy 005.jpg by Peel Regional Police Forensic Identification Service of army-green coloured ¾ length hooded Merrel coat worn by the deceased pedestrian on December 1, 2010 (1 page).

Exhibit "11B" - colour photograph for file 2010-213402 labelled Autopsy 013.jpg by Peel Regional Police Forensic Identification Service of black-coloured dress pants and grey-coloured Columbia hikers shoes worn by the deceased pedestrian on December 1, 2010 (1 page).

Exhibit "12" - forensic report dated March 10, 2011, from Dalia Bagby, Forensic Scientist, regarding brown and white paint samples from the tractor and white paint sample from the trailer driven by the defendant and compared to white deposits found on Erica Carmichael’s coat that were determined not to be automotive paint and also compared to various types of paint found in debris collected and determined that they are different in colour, appearance, or chemical composition from paint samples collected from the tractor and trailer driven by the defendant (CFS File No. 10-1347DB) and Evidence List Report (2010-001347) (4 pages).

Exhibit "13" - resume dated November 29, 2011, of Steve Reynolds, who was qualified as expert witness for the identification of makes and models of trucks (2 pages).

Exhibit "14A" - colour photograph of the driver's side of the white-coloured tractor and white-coloured trailer driven by the defendant, showing a logo for “iwheels Logistics” on the side of the trailer, near the rear of the trailer, and showing brown-coloured fenders or wheel wells for the front wheels of the tractor unit and showing one window for the sleeper portion of the tractor (1 page). .Exhibit "14B" - colour photograph of the passenger side of the white-coloured tractor and white-coloured trailer driven by the defendant, showing a logo for “iwheels Logistics” on the side of the trailer, near the rear of the trailer, and showing brown-coloured fenders or wheel wells for the front wheels of the tractor unit and showing two windows for the sleeper portion of the tractor (1 page).

Exhibit "15" - DVD of videotaped statement of defendant Dhan Gill taken by Cst. Douglas Tracy and recorded on December 7, 2010. Exhibit "16" - photograph of license plate “C3168F” attached to the white-coloured tractor driven by the defendant when he was stopped by Cst. Tracey on December 7, 2010 (1 page). . Exhibit "17" - curriculum vitae (undated) of Constable Kenneth Wright, who was qualified as an expert witness for technical collision investigation and reconstruction (8 pages).

Exhibit "18 - CAD Terminal Report of 9-1-1 call received at 17:37.15 hours on December 1, 2010, indicating that a female had been run over by transport from the location of Torbram Road/Walker Drive with coordinates of Latitude 43.08.433 degrees North and Longitude of 079.41.00.812 degrees West and indicating a police officer had been dispatched at 17:38:59 and that the first police officer was on scene at 17:41:43 [labelled page 1 of 10] (1 page).

Exhibit "19" - chart prepared by Constable Kenneth Wright containing items #14 to #18 that was from information contained in Exhibit 7 (chart of satellite positioning with latitude and longitude and description of location of truck W3036 driven by Dhan Gill at certain times from TTR Transport for the period from 12/01/10 00:00:00 EST to 12/01/10 23:59:59 EST) (1 page).

Exhibit "20A" - Google map showing location of tractor and trailer driven by the defendant on December 1, 2010, at 17:14:34 EST, with GPS coordinates of latitude 43.64476 and longitude 79.75662, prepared by Constable Kenneth Wright using Google Map program, which shows the defendant was 4.44 km NNE of Danbro Yard in Mississauga, Ontario (55 Northeast) and the location indicated by a

red-circled symbol containing the letter “A” on Steeles Ave. West, west of Mavis Road (1 page). Exhibit "20B" - Google map showing location of tractor and trailer driven by the defendant on December 1, 2010, at 17:29:45 EST, with GPS coordinates of latitude 43.698 and longitude 79.69759, prepared by Constable Kenneth Wright using Google Map program, which shows the defendant was 2.36 km WNW of Sousa Truck and Trailer in Mississauga, Ontario (18 Northeast) and the location indicated by a red-circled symbol containing the letter “A” on Steeles Ave. East, east of Dixie Road (1 page).

Exhibit "20C" - Google map showing location of tractor and trailer driven by the defendant on December 1, 2010, at 17:39:12 EST, with GPS coordinates of latitude 43.72513 and longitude 79.68509, prepared by Constable Kenneth Wright using Google Map program, which shows the defendant was 0.24 km W of Cosma in Brampton, Ontario (0 North) and the location indicated by a green arrow symbol located behind a red-circled symbol containing the letter “A” on Trojan Court, east of Summerlea Road (1 page).

Exhibit "20D" - Google map showing location of tractor and trailer driven by the defendant on December 1, 2010, at 17:46:35 EST, with GPS coordinates of latitude 43.72675 and longitude 79.68486, prepared by Constable Kenneth Wright using Google Map program, which shows the defendant was 0.25 km WNW of Cosma in Brampton, Ontario (0 North) and the location indicated by a green arrow symbol in a parking lot on Trojan Court, east of Summerlea Road (1 page).

Exhibit "20E" - Google map showing location of tractor and trailer driven by the defendant on December 1, 2010, at 17:56:11 EST, with GPS coordinates of latitude 43.72675 and longitude 79.6849, prepared by Constable Kenneth Wright using Google Map program, which shows the defendant was 0.25 km WNW of Cosma in Brampton, Ontario (0 North) and the location indicated by a green arrow symbol in a parking lot on Trojan Court, east of Summerlea Road (1 page).

Exhibit "21" - Google map showing the GPS coordinates of 9-1-1 call shown by green arrow symbol at latitude 43.71706 and longitude 79.68340 plotted on Google Map by Constable Kenneth Wright showing the municipal address is 2 Walker Drive in Brampton, east of Torbram Road (1 page). Exhibit "22" - Google map showing the distance from the northeast corner of Torbram Road and Steeles Ave. East to the southeast corner of Torbram Road and Walker Drive prepared by Constable Kenneth Wright using Google Map program indicating the distance is 403.3330 meters (1 page).

Exhibit "23" - Google map showing the distance from the intersection of Torbram Road and Walker Drive to east of Trojan Court prepared by Constable Kenneth Wright using Google Map program showing the route going east along Walker Drive and then north on Summerlea Road and then east on Trojan court, indicating the total distance is 1263.6147 meters (1 page). Exhibit "24" - colour aerial photograph of the intersection of Torbram Road and Walker Drive (1 page).

Exhibit "25" - colour aerial photograph showing the location and view of the video cameras that captured the videos referred to as the Magna International security video; the U-HAUL Depot security video; the Petro Can Security video; the Brampton Transit Security video taken while Brampton Transit bus was travelling northbound on Torbram Road from Steeles Ave. East; the Gardena Canada Security video; and the 20 Trojan Court Security video (1 page).

Exhibit "26" - Time-Line Chart commencing at 5:27:00 and ending at 5:42:59 that was prepared by Constable Kenneth Wright with 1 second increments, and indicating time discrepancies and actual times for the 9-1-1 C.A.D. system; the Magna International Security video; the U-HAUL Depot security video; the Petro Can Security video; and the Brampton Transit Security video taken while Brampton Transit bus was travelling northbound on Torbram Road from Steeles Ave. East; and the colour of the traffic light for north-south direction at Torbram and Walker/East, and the event in question (33 pages).

Exhibit "27" - Chart prepared by Constable Kenneth Wright of times and where 8 northbound trucks that had been travelling on northbound Torbram Road between 5:32 to 5:40 p.m. had went at the intersection of Torbram and Walker (1 page). Exhibit "28" - Consistencies Chart prepared by Constable Kenneth Wright showing how the surveillance videos from the Petro-Canada

gas station, the U-HAUL Depot, the Magna International building, and from the Brampton Transit bus and the events captured on the videos fit together by actual time (however three trucks westbound on Walker Drive seen on Petro-Canada video not seen on the U-Haul Depot video and likely turned right onto northbound Torbram) (4 pages).

Exhibit "29" - colour image of computer screen containing icons and shortcuts of Peel Regional Police laptop HQ-ITSL-L53 containing the synchronized video compilation of the 9-1-1 call; the Magna International Security video; the U-HAUL Depot security video; the Petro Can Security video; and the Brampton Transit Security video taken while Brampton Transit bus was travelling northbound on Torbram Road from Steeles Ave. East (1 page).

Exhibit "30" - DVD of surveillance video taken on December 1, 2010, from U-Haul Depot building located at the northwest corner of the intersection of Torbram Road and East Road/Walker Drive in the City of Brampton. Exhibit "31" - DVD of surveillance video taken on December 1, 2010, from Petro-Canada gas station located at the northeast corner of the intersection of Torbram Road and East Road/Walker Drive in the City of Brampton. .

Exhibit "32" - DVD of surveillance video taken on December 1, 2010, from Brampton Transit bus travelling northbound on Torbram Road showing view in front of bus while travelling northbound. Exhibit "33" - DVD of surveillance video compilation of other surveillance videos and superimposed with audio recording of 9-1-1 call for December 1, 2010 (Petro-Canada video, U-HAUL Depot videos from camera 7 and 13, Magna International video, Brampton Transit bus video. Exhibit "34" - DVD of December 1, 2010, surveillance video taken from the Magna International building and from 100 Summerlea Boulevard.

Exhibit "35" - copy of image of laptop screen showing shortcuts for surveillance video compilation (1 page).

Exhibit "36 - Peel Regional Police laptop HQ-ITSL-L53 containing software program to run the 9-1-1 call and the five videotapes simultaneously and synchronized of the Magna International Security video; the U-HAUL Security video; the Petro Can Security video; and the Brampton Transit Security video taken while Brampton Transit bus was travelling northbound on Torbram Road Exhibit "A" - still image purported to be from the Petro-Canada surveillance video of December 1, 2010, of a transport truck showing front wheel wells and something dark around them (1 page).

Exhibit "B" - still image purported to be from the Petro-Canada surveillance video of December 1, 2010, of a transport truck that expert witness Adrian Hamill identified as a Freightliner Columbia truck (1 page). Exhibit "C" - still image purported to be from the Petro-Canada surveillance video of December 1, 2010, of a transport truck (1 page). Exhibit "D" - still image purported to be from the Petro-Canada surveillance video of December 1, 2010, of a transport truck (1 page).

Exhibit "E" - still image purported to be from the Petro-Canada surveillance video of December 1, 2010, of a transport truck that expert witness Adrian Hamill identified as a Freightliner Columbia cab with a sleeper and said that the front fenders were altered because everything was white except the fenders (1 page).

Exhibit "F" - still image purported to be from the 100 Summerlea Boulevard surveillance video of December 1, 2010, of a transport truck that expert witness Adrian Hamill identified as a Freightliner Columbia truck with dark fenders (1 page). Exhibit "G" - still image purported to be from the 100 Summerlea Boulevard surveillance video of December 1, 2010, of a transport truck that expert witness Adrian Hamill identified as a Freightliner Columbia truck (1 page).

Exhibit "H" - still image purported to be from the 100 Summerlea Boulevard surveillance video of December 1, 2010, of a transport truck that expert witness Adrian Hamill identified as a Freightliner Columbia truck (1 page). Exhibit "I" - still image purported to be from the 100 Summerlea Boulevard surveillance video of December 1, 2010, of a transport truck that expert witness Adrian Hamill identified as a Freightliner Columbia truck with dark fenders (1 page).

Exhibit "J" - still image purported to be from the 100 Summerlea Boulevard surveillance video of December 1, 2010, of a transport truck that expert witness Adrian Hamill identified as a Freightliner Columbia truck (1 page). Exhibit "K" - still image purported to be from the Magna International surveillance video of December 1, 2010, of a transport truck that expert witness Adrian Hamill identified as the same vehicle he had identified as Freightliner Columbia truck with dark fenders and sleeper (1 page).

Exhibit "L" - still image purported to be from the Magna International surveillance video of December 1, 2010, of a transport truck that expert witness Adrian Hamill identified as the same vehicle he had identified as Freightliner Columbia truck with dark fenders and sleeper (1 page). Exhibit "M" - still image purported to be from the Magna International surveillance video of December 1, 2010, of a transport truck that expert witness Adrian Hamill identified as the same vehicle he had identified as Freightliner Columbia truck with dark fenders and sleeper (1 page).

Exhibit "N" - still image purported to be from the Magna International surveillance video of December 1, 2010, of a transport truck that expert witness Adrian Hamill identified as the same vehicle he had identified as Freightliner Columbia truck with dark fenders and sleeper (1 page). Exhibit "O" - still image purported to be from the Magna International surveillance video of December 1, 2010, of a transport truck that expert witness Adrian Hamill identified as the same vehicle he had identified as the Freightliner Columbia truck with dark fenders and sleeper (1 page).

Exhibit "P" - still image purported to be from the Magna International surveillance video of December 1, 2010, of a transport truck that expert witness Adrian Hamill identified as the same vehicle he had identified as the Freightliner Columbia truck with dark fenders and sleeper (1 page). Exhibit "Q" - still images purported to be from the 20 Trojan Court surveillance video of December 1, 2010, of a transport truck that expert witness Adrian Hamill identified as the same vehicle he had identified as the Freightliner Columbia truck with dark fenders and sleeper (1 page).

Exhibit "R" - DVD of surveillance videotape taken on December 1, 2010, obtained from U-Haul Depot property located on northwest corner of intersection of Torbram Road and East Road/Walker Drive in the City of Brampton. 1. INTRODUCTION

[ 1 ] Sometimes bad things happen to people because they are simply at the wrong place at the wrong time. In this particular case, two people were at the wrong place at the wrong time when something tragic occurred. One of them was Erica Carmichael, a pedestrian, who while crossing a street had been run over by a transport truck making a right turn. Undoubtedly, the driver of that truck had also been at that wrong place and time. Sadly, Erica Carmichael died because of that unfortunate meeting between them.

Moreover, while Erica Carmichael laid on the street after being run over, the driver of that transport truck, who may have been unaware of what had occurred, did not stop, but drove away. [ 2 ] For them both, that wrong place had been at the intersection of Torbram Road and Walker Drive in the City of Brampton, which is geographically located at longitude 79.68340 degrees West and at latitude 43.71706 degrees North.

And, that fateful time when this tragic event happened was on Wednesday, December 1, 2010, at 5:36:26 p.m. [ 3 ] Regrettably, no one, who had been at the intersection when Erica Carmichael was run over, had actually observed who had been driving the transport truck or been able to get a description of the driver, or had gotten the province or number of the license plate or the company name of the transport truck that had been involved.

However, one witness was able to say it had been a white-coloured transport truck with a sleeper berth pulling a white-coloured 53-foot trailer that had been involved, although it could have been one of hundreds of transport trucks and trailers that had passed through the intersection that day. [ 4 ] In trying to identify the driver or to find the transport truck involved in Erica Carmichael’s death, the police made a public plea for information.

Then fortuitously, at 5:19 p.m. on December 7, 2010, a transport truck and trailer matching the description of the transport truck suspected in running over Erica Carmichael had been observed making the same right turn at the same intersection by a police officer, who happened to be at that intersection looking for transport trucks that would match the description of the suspect truck.

The officer immediately pulled over that truck to investigate it and, after some inquiries and review of the driver’s logs for the truck, soon suspected that the driver of this particular truck, who was subsequently identified as Dhan Singh Gill, had been the one who had driven the truck that ran over Erica Carmichael. After completing their investigation into this traffic fatality, the Peel Regional Police decided to charge Dhan Singh Gill (“the defendant”) on February 11, 2011, with contravening s. 142(1) of the Highway Traffic Act , R.S.O. 1990, c.

H.8, of making a “right turn not in safety”. [ 5 ] However, as there is no direct evidence the defendant had been observed as the driver of the transport truck involved, the Crown will instead rely on evidence that will circumstantially prove the defendant is the person that had been operating the transport truck that ran over Erica Carmichael while making that unsafe right turn.

To make this circumstantial case, the police have collected evidence to show that the driver of the transport truck involved in the death of the pedestrian was indeed the defendant, which consists of witnesses’ observations of the pedestrian being run over and their description of the transport truck involved; the statement made by the defendant to a police officer; the surveillance videos that captured a transport truck near the intersection and also making a right turn at the intersection at the time in question; the driver’s logs for the defendant and for his transport truck; the GPS or satellite positions and coordinates for the location of the defendant’s transport truck at certain times on December 1, 2010; the time-lines of events based on how they fit with the time the police first arrived at the scene, the time the 9-1-1 calls were made by witnesses, and the time-stamps recorded on the surveillance videotape from the Brampton Transit bus travelling northbound on Torbram Road at the time in question; the traffic signal timing for the intersection; the distinct features visible on the suspect tractor-trailer captured on the surveillance videos; and the identification by experts of the make or model of the suspect transport truck that had been captured on surveillance videos. [ 6 ] On the other hand, the defence contends the Crown has failed to prove beyond a reasonable doubt that the defendant had been the one who was driving the transport truck that struck Erica Carmichael, considering that three civilian witnesses who testified at the trial and who were just feet away from the suspect truck when the pedestrian was run over, did not see who was driving or get a description of the driver; nor did they see the front or cab portion of the tractor-trailer strike the pedestrian; nor did any of them see or obtain any license plate number for the truck or trailer in question, or the name of any company on the truck or trailer; nor did they observe the 15-foot logo on the side of the trailer; nor did they observe the dark-coloured wheel wells or fenders on the front of the truck.

Moreover, the defence emphatically notes that one witness described the trailer on the suspect tractor-trailer as having red or brown doors on the rear of the trailer, when in fact the trailer driven by the defendant has white rear doors instead of red or brown rear doors, and as such, creates reasonable doubt that the defendant had been involved in the pedestrian’s death. [ 7 ] Alternatively, if it is determined that the defendant had been the one operating the transport truck that ran over the pedestrian, then it is submitted by the defence that there should be an acquittal nonetheless, since there is evidence that the defendant had make a normal right turn at a normal speed, the pedestrian had been looking down when crossing the street, and had been wearing dark-coloured clothing that included wearing a hood over her head, and that the pedestrian had walked into the side of the defendant’s tractor-trailer after the defendant had already begun making or been in the midst of the right turn. [ 8 ] Now, as to how both the pedestrian and the driver of the transport truck came to be at that fateful place and time will be key in determining who had been the driver of that transport truck that ran over Erica Carmichael.

[ 9 ] Moreover, the trial of this regulatory charge had been held over three days: February 22, 22 and 29, 2012. In the trial, ten witnesses testified for the Crown while the defence did not call any witnesses. After closing arguments were made, I reserved judgment and adjourned the matter until July 16, 2012, to render my judgment. These, therefore, are my written reasons for judgment: 2. THE CHARGE [ 10 ] Under a

Part III information sworn on February 11, 2011, the defendant in this proceeding has been charged with committing the offence of “right turn not in safety”, contrary to s. 142(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8 : Dhan Singh Gill on or about the 1st day of December, 2010, at the City of Brampton in the Central West Region did commit the offence of being a driver of a motor vehicle, licence number 7134PF at approximately 5:37 p.m., upon a highway to wit: Torbram Road turning right at the intersection with Walker Drive, did unlawfully fail to make such movement in safety contrary to the Highway Traffic Act, section 142(1) . 3. FACTUAL BACKGROUND (

a) ADMISSIONS [ 11 ] The defence has conceded or has no issues with the following: (

i) the defendant’s statement made on December 7, 2010, to Constable Tracey, a police officer with the Peel Regional Police, had been voluntarily given; (ii) the traffic lights and pedestrian signals at the intersection in question were functioning properly at the time; (iii) the contents of a letter dated December 20, 2010, from Matthew Alcock, traffic signal technologist for City of Brampton, is admissible for its truth without Alcock being required to testify (see Exhibit 1); (iv) the surveillance videos are admissible without authentication or proof of authenticity; (

v) the two 9-1-1 calls made by Glen Pollock and Gordon Rockett, respectfully, were received by the Peel Regional Police at 5:37 p.m. on December 1, 2010; (vi) Erica Carmichael, the deceased pedestrian, was picked up by a city bus at Highway 427 and Humber College at 5:09 p.m. and that this was the bus she had been travelling on; (vii) the bus carrying Erica Carmichael, the deceased pedestrian, stopped at 5:33 p.m. at Torbram Road and Steeles Avenue in Brampton, at which point Erica Carmichael exited the bus; (viii) Erica Carmichael, the deceased pedestrian, after getting off the bus then headed northwest through the parking lot of Magna International towards Torbram Road; (ix) Erica Carmichael, the deceased pedestrian, at the time in question was wearing a Khaki three-quarter length green jacket;

(

x) that there are no issues with the longitudinal and latitude lines being introduced at trial; and (xi) that there are no issues regarding jurisdiction, date, and time. (

b) SUMMARY OF EVENTS [ 12 ] A traffic fatality occurred in the City of Brampton as a result of a motor vehicle running over a pedestrian that had been crossing at an intersection controlled by automatic traffic lights. This happened on Wednesday, December 1, 2010, at 5:36:26 p.m., at the intersection of Torbram Road and Walker Drive. In this particular case, a transport truck pulling a trailer ran over Erica Carmichael, while the truck was making a right turn. The transport truck had been northbound on Torbram Road and made the right turn to go eastbound on Walker Drive.

Witnesses at the intersection described the tractor-trailer as a white-coloured tractor with a sleeper berth and the trailer as being 53 feet long and white in colour. [ 13 ] This pedestrian fatality occurred in the evening when the streetlights were on and the intersection was illuminated by artificial lighting. It was cold and the temperature at the time was about -1 degrees Celsius.

At the time the pedestrian had been run over, the traffic light for northbound traffic on Torbram Road had been indicating a green light. [ 14 ] Furthermore, Erica Carmichael, the pedestrian, had been walking northbound and was on the eastside of Torbram Road and crossing the street at Walker Drive. She had been wearing dark-coloured clothing and the hood of her jacket had been covering her head. It also appeared to one witness that she had been looking down as she walked.

Moreover, she had stepped onto Walker Drive and had been one or two steps into the pedestrian crosswalk when the transport truck had commenced or had been in the midst of its right turn and about 10 feet from the curb she walked into or made contact with the centre portion of the passenger-side of the cab portion of the tractor-trailer. After the contact with the side of the transport truck, the pedestrian fell to the ground. The rear tires on the trailer then drove over the pedestrian while she laid on the ground.

The tractor-trailer did not stop after the pedestrian had been run over, but continued on its journey eastbound on Walker Drive. Witnesses at the intersection immediately called 9-1-1. When police and paramedics arrived, Erica Carmichael was already dead. [ 15 ] Unfortunately, no one at the intersection got the license plate of the transport truck, a description of the driver, or any logo or company name on the tractor or cab part of the transport truck or on the trailer.

The Major Collision Bureau of the Peel Regional Police subsequently commenced an investigation into this traffic fatality and also sought assistance from the public to identify the transport truck and its driver that ran over the pedestrian. The police had originally treated this traffic fatality as a hit-and-run situation.

Furthermore, the police in their investigation obtained witness statements and a description of the transport truck and trailer involved, canvassed for and viewed surveillance videos from buildings near the intersection, and sought the assistance from experts involved in the sale or purchase of transport trucks or the trucking industry to identify a suspect truck that made a right turn at the intersection, which had been captured on some surveillance videos. [ 16 ] Then, on December 7, 2010, at 5:19 p.m., several days after the fatality occurred, a police officer who had been stationed at the intersection where the fatality occurred, specifically looking for the suspect transport truck, observed a transport truck pulling a trailer making the same right turn that matched the description of the truck that had run over the pedestrian.

After this transport truck was stopped and investigated by the police, the driver was identified as Dhan Singh Gill. The driver then voluntarily went to the police station, voluntarily gave a statement to the police that had been videotaped, and consented to the search of the transport truck he had been driving.

After reviewing the driver’s log for the transport truck and Gill admitted going through the intersection and recalling seeing the police cars blocking the intersection on the night in question, the police believed that it had been Gill who had been driving the transport truck that ran over Erica Carmichael. When the Peel Regional Police completed their investigation, they charged Gill on February 11, 2011, for committing the offence of “right turn not in safety”, contrary to s. 142(1) of the Highway Traffic Act . (

i) Key Time-Lines for December 1, 2010 [ 17 ] The defendant, Dan Singh Gill, who was 53 years old at the time, began his day early on December 1, 2010, and at about 5:02 a.m. had been at the lot located at 20 Trojan Court in Brampton, which is approximately 1264 meters northeast of the intersection of Torbram Road and Walker Drive, to pick up the transport truck and trailer that he exclusively drives, which is a 2004 white-coloured Freightliner Columbia transport truck with dark-coloured fenders and a sleeper berth.

He also uses the same trailer, which is a white- coloured 53-foot trailer with the logo “iwheels Logistics ” on the side of the trailer, near the rear. He then left the yard or lot where he parks the tractor-trailer every night and drove the tractor-trailer to Concord, Ontario to pick up the load of auto parts that he would have

to transport to the Ford plant in Dearborn, Michigan. He makes this same trip five days a week, from Monday to Friday, of transporting auto parts from Concord to the Ford plant. After the auto parts were loaded onto the trailer, he drove from Concord to Trafalgar Road to get onto Highway 401. He also believes he had stopped at 7:25 a.m. to refuel his truck. He then drove to Windsor, which took him about 3 hours and 32 minutes. After crossing the Canada-U.S. border, he arrived at Dearborn, Michigan at 11:48 a.m. His trailer was then unloaded. At 12:42 p.m., he started his journey back to Brampton.

He arrived back at the border and then spent 24 minutes at the Duty Free store. Then at 1:31 p.m., he left the border area and continued on with his journey back to Brampton. His journey back to the Brampton lot would take about 4 hours to complete. [ 18 ] At 5:09 p.m., 28 year-old Erica Carmichael got onto a city bus at Highway 427 and Humber College in Toronto.

She had just finished her workday at The Bay department store at Woodbine Centre and would be returning to her home in Brampton on the bus. [ 19 ] Meanwhile, at 5:14:34 p.m., the defendant, was still driving his tractor-trailer was on Steeles Avenue West, west of Mavis Road, heading back to the location where he parks the tractor-trailer for the night.

He then would be finished his workday and would then head home. [ 20 ] Some minutes later, at 5:29:45 p.m., the defendant’s transport truck had reached Steeles Avenue East, east of Dixie Road, in the City of Brampton. [ 21 ] At 5:30 p.m., Gordon Rockett had finished work at a logistics business located on Summerlea Boulevard, which is east of the intersection of Torbram and Walker. He finishes work at the same time every day.

He also would be heading home and taking his usual route westbound along Walker Drive from his company’s location. [ 22 ] At 5:33 p.m., a Brampton Transit bus stopped at the bus stop located on the northside of Steeles Avenue, just east of Torbram Road, where Erica Carmichael got off the bus. She then walked through the Magna International parking lot on the northeast corner of Steeles Avenue and Torbram Road to get to Torbram Road. [ 23 ] At 5:35:40 p.m., the traffic light at the intersection of Torbram and Walker for vehicles travelling northbound on Torbram Road changes to a green indication.

The phase for the northbound traffic lights as indicated in the Traffic Signal Timing chart in Exhibit 1 is for 56 seconds before the phase for eastbound and westbound traffic starts. Of those 56 seconds for northbound traffic on Torbram Road, 4 seconds of that would be used for an amber light and 2 seconds for an all-way red light. Hence, the green light for northbound traffic would last for 50 seconds. [ 24 ] At 536:26 p.m., Erica Carmichael, who had been walking northbound on the eastside sidewalk of Torbram Road, stepped onto Walker Drive to cross Walker Drive.

At virtually the same time, a white-coloured transport truck with a sleeper berth and a white- coloured 53-foot trailer while travelling northbound on Torbram Road made a right-turn onto Walker Drive. The traffic light for northbound traffic was still green. [ 25 ] Also at 5:36:26 p.m., Joven Ramirez and Glen Pollock were passengers in a van stopped for a red light at Torbram Road in the designated left-turn lane for westbound Walker Drive. The van they were riding in was the first vehicle in line waiting to make a left turn, to go southbound on Torbram Road.

They had just finished work and were being driven by their co-worker, Ronald, to the bus stop located at the intersection of Steeles Avenue and Torbram Road, so they could catch a bus. While stopped and waiting for the light to change, both Ramirez and Pollock see a pedestrian at the southeast corner of the intersection at the same time they see a transport truck with a trailer going northbound on Torbram Road make a right turn onto Walker Driver, but only see the pedestrian’s body being run over by the wheels of the trailer.

However, Ramirez had seen the pedestrian walk one or two steps onto the road and into the crosswalk before he observed the tractor-trailer make the right turn onto Walker Drive. [ 26 ] In addition, at 5:36:26 p.m., Gordon Rockett was also at the intersection of Torbram and Walker in his vehicle stopped for a red light at Torbram Road in the designated left-turn lane for westbound Walker Drive. His vehicle, a grey Ford Fusion, had been the second in line waiting to make a left turn to go southbound.

As he waited for his light to change, he happened to be looking to his left and noticed a pedestrian and a transport truck come into contact when the pedestrian was about 10 feet into the pedestrian crosswalk on the eastside of Torbram Road. He then saw her fall onto the ground immediately and then observed both sets of the rear wheels on the 53-foot trailer run over the pedestrian. [ 27 ] At 5:37:15 p.m., shortly after seeing the pedestrian being run over, Gordon Rockett and Glen Pollock called 9-1-1, respectively,

and spoke to the 9-1-1 operator. Rockett was still on line with the 9-1-1 operator when the police and ambulance arrived at the intersection. In addition, Gordon Rockett gave a statement to the police and remained at the intersection for several hours. Rockett’s vehicle also remained in the same spot in the left-turn lane during that time.

Furthermore, after seeing the pedestrian being run over, Rockett said he called 9-1-1 no more than 30 seconds afterwards while Pollock said he called 9-1-1 within one minute after it had happened. [ 28 ] At 5:39:12 p.m., a few minutes after the pedestrian had been run over, the defendant’s tractor-trailer was on Trojan Court, approximately 1264 meters from the intersection of Torbram Road and Walker Drive. [ 29 ] At 5:41:43 p.m., Constable Elson, after receiving a radio call about a traffic accident occurring, arrived at the intersection of Torbram Road and Walker Drive. An ambulance arrives shortly after.

Elson notices that the person lying on the road surface in the eastbound lane of Walker Drive is outside of the pedestrian crosswalk and is later measured to be lying 4 meters east of the crosswalk and 5 meters north of the south curb of Walker Drive.

He also notices that the person lying on the road is unresponsive. [ 30 ] Then sometime about 6:00 p.m., the defendant is finished his workday and heads home and is blocked by police vehicles at Summerlea Boulevard and Walker Drive and is prevented from using the intersection at Torbram Road and Walker Drive to get home and decides to go to Airport Road and take a different route home. [ 31 ] Police officers from the Major Collision Bureau of the Peel Regional Police are then called out later that evening to attend and investigate the traffic fatality that occurred at the intersection of Torbram and Walker. (ii) How Erica Carmichael came to be at the intersection of Torbram and Walker on December 1, 2010? [ 32 ] On December 1, 2010, which one witness said had been the first cold day of the season, Erica Carmichael finished work and caught a municipal bus at 5:09 p.m. to go home.

She worked in the marketing department for The Bay at the Woodbine Centre in Toronto. She had gotten onto the bus at Highway 427 and Humber College in the City of Toronto. [ 33 ] The bus then proceeded to the City of Brampton and dropped her off at 5:33 p.m. at the northeast corner of Torbram Road and Steeles Avenue. After getting off the bus, she walked in a northwest direction towards Torbram Road through the parking lot of Magna International, which is located on the northeast corner of Torbram Road and Steeles Avenue.

She was also heading toward the intersection of Torbram Road and Walker Drive, which is about 400 meters north of the intersection of Torbram and Steeles. [ 34 ] At 5:36:26 p.m., Erica Carmichael had just walked one or two steps onto Walker Drive, just east of Torbram Road, in the City of Brampton, to cross the street when the white-coloured transport truck pulling a white coloured 53-foot trailer began its right turn onto Walker Drive from northbound Torbram Road. She had been walking in a northbound direction in the crosswalk.

In addition, the point of contact between her and the truck occurred at a point no more than 10 feet from the south curb. [ 35 ] After the contact with the passenger-side of the cab portion of the truck had occurred, Erica Carmichael fell onto the road and the rear wheels of the trailer then ran over her body. The transport truck did not stop but continued going eastbound on Walker Drive. Witnesses at the intersection at that time made 9-1-1 calls within 30 seconds to a minute of Erica Carmichael being run over.

The police arrived at 5:41:43 p.m. and the first police officer on the scene did not detect any life from Erica Carmichael. An ambulance arrived shortly afterwards, but Erica Carmichael did not survive her injuries. A yellow-coloured police blanket was then placed over Erica Carmichael’s body.

Police officers from the Major Collision Bureau of the Peel Regional Police were then called in to investigate this traffic fatality. (iii) Where had the defendant been at different times on December 1, 2010? [ 36 ] The defendant is employed as a transport truck driver for Rasham Cheema, the owner of the transport truck that the defendant drives. In addition, he had been driving for the owner of the transport truck, who is contracted by an affiliate or subsidiary of TTR Transport to haul auto parts to the Ford plant in Dearborn, Michigan.

The defendant has being doing this trip of hauling auto parts to the Ford plant, five days of the week from Monday to Friday, for the last three months. He has also being driving the same transport truck and using the same trailer since he started hauling the auto parts to Michigan. In addition, the defendant told Constable Tracey that he is the exclusive driver of the transport truck he had been driving at the time Constable Tracey stopped him on December 7, 2010.

[ 37 ] On December 1, 2010, the defendant arrived at the lot at 20 Trojan Court in Brampton, where the transport truck and trailer is parked for the night and began his workday at about 5:02 a.m. He then checked out his truck and trailer and left the yard and then drove it to Concord, Ontario to pick up the load of auto parts that he would have to transport to the Ford plant in Michigan. He then drove to Trafalgar Road to connect onto Highway 401 to go to Windsor, Ontario. [ 38 ] At about 10:57 a.m., he arrived at the Canada and United States Border.

Once allowed to proceed into the United States he arrived at the plant at 11:48 a.m. After the load was dropped off, he left the Ford plant at 12:42 p.m. to start his drive back to Brampton. He then arrived back at the border at about 1:07 p.m. where he spent about 24 minutes at the Duty Free store. He finally left the border area at 1:31 p.m. and continued on with his trip back to Brampton using Highway 401. [ 39 ] Furthermore, the defendant told Constable Tracey that he usually takes the Trafalgar Road ramp to get off Highway 401, and then drives north to Steeles Avenue and then east to Torbram Road.

At 5:14:34 p.m., the defendant’s truck was at Steeles Avenue West, west of Mavis Drive. Then, at 5:29:45 p.m. the defendant’s truck was still on Steeles Avenue, but now it was just east of Dixie Road, in the City of Brampton. [ 40 ] At 5:39:12 p.m., the defendant arrived back at the yard or lot at 20 Trojan Court in Brampton where he parked his transport truck and trailer for the night. At about 6:00 p.m. he left the yard to go home.

He also told Constable Tracey that he had gotten close to the intersection at Torbram and Walker but then noticed the road ahead had been blocked by police cars with flashing lights at Summerlea Boulevard and Walker Drive and so he had to go to Airport Road in order to take a different way home.

In addition, he told Constable Tracey that he had made a right turn from northbound Torbram to turn right onto Walker Drive on December 1, 2010, but did not notice anything at the time. [ 41 ] Furthermore, when the defendant arrived back at the lot at 20 Trojan Court, he would have already been on duty or driving his transport truck for about 12 ½ hours, since he started his work day. (iv) The intersection where Erica Carmichael was run over and its surrounding area [ 42 ] Erica Carmichael died at the intersection of Torbram Road and Walker Drive, which is situated in the City of Brampton.

The intersection is controlled by automatic traffic and pedestrian signal lights. There is also a pedestrian crosswalk painted on the road on the east side of the intersection and the lines for the crosswalk were visible.

In addition, there are crosswalks on the other three sides of the intersection. [ 43 ] Moreover, this intersection is located in an industrial area, where there are many warehouses and where hundreds of trucks may go through the intersection on a daily basis. [ 44 ] Furthermore, Torbram Road is a road that runs in a north-south direction while Walker Drive, which is located on the eastside of Torbram Road, runs in an east-west direction east of the intersection.

The east-west road on the westside of the intersection is named East Drive and runs in an east-west direction on the west side of the intersection. [ 45 ] For Walker Drive, there are three westbound lanes on the north portion of the road comprising of two through lanes and one dedicated left-turn lane while there is only one eastbound lane on the south portion of the road, which is wider than the width of a normal lane.

Constable Wright estimated that a lane is generally about 3.5 meters wide and that the width of the eastbound lane is more than one lane but less than two lanes, and would therefore, be between 3.5 meters to 7 meters wide. Furthermore, the southeast curb of Walker Drive shown on the to-scale map of the intersection marked as Exhibit 10 shows it to be curved and that the width of the eastbound lane is wider at the crosswalk than it is further east on Walker Drive.

Using the scale on the map, it appears that the width of the eastbound lane at the crosswalk is approximately 12 meters while the width further east is 5 meters. [ 46 ] In addition, East Drive has two westbound lanes and for the eastbound lanes, there is a dedicated left-turn lane and one through lane. [ 47 ] And, for Torbram Road on the southside of the intersection, there are four northbound through lanes in which two are through

lanes and one is a dedicated left-turn lane and one is a dedicated right-turn lane. In addition, there are two southbound lanes on the southside of the intersection. For the northside of the intersection for Torbram Road there are two northbound lanes and three southbound lanes in which two are through lanes and one is a dedicated left-turn lane. [ 48 ] There is also a bus shelter on the eastside of Torbram Road located south of Walker Drive, which sits adjacent to the west boundary line of the sidewalk that is on the eastside of Torbram Road.

From the to-scale map of the intersection marked as Exhibit 10, the bus shelter is located about 10 meters south of the stop line for northbound traffic on Torbram Road. There is also an advertisement that is only on one side of the bus shelter, which in the photograph marked Exhibit 8A shows it to be on the north face of the bus shelter. [ 49 ] In addition, there are three light poles located at the southeast corner of the intersection. One is located west of the sidewalk and just north of the bus shelter and the other two poles are located east of the sidewalk.

These two are the pedestrian traffic light pole located just south of the south curb of Walker Drive and the traffic light pole located further east of the pedestrian traffic light pole just south of the south curb. [ 50 ] The sidewalk on the eastside of Torbram Road south of the intersection ends at the southeast corner and does not continue eastbound on the southside of Walker Drive. [ 51 ] Moreover, on the northwest corner of the intersection is located the U-HAUL Depot while the Petro-Canada gas station is located on the northeast corner.

As for the southeast corner, the area not developed and is a grassy area. [ 52 ] In addition, there is also visible on the photograph marked Exhibit 9B a speed limit sign indicating a maximum speed of 50 k.p.h. on the most easterly traffic light pole that is located several feet east of the eastside sidewalk of Torbram Road and south of the south curb of Walker Drive. [ 53 ] And, in respect to roads east of the intersection, Summerlea Boulevard is the first north-south road located east of Torbram Road and runs only north of Walker Drive.

At the intersection of Summerlea Boulevard and Walker Drive there is a four-way stop controlled by stop signs. On the opposite side of Summerlea Boulevard, there is a road on the southside of Walker Drive that is named Van Der Graaf Court. [ 54 ] Furthermore, where the defendant parks his tractor-trailer for the night at 20 Trojan Court that road is located north of Walker Drive and runs only east of Summerlea Boulevard. The distance from the intersection of Torbram Road and Walker Drive to Trojan Court is approximately 1264 meters. (

v) Location of Erica Carmichael’s body on Walker Drive [ 55 ] After Erica Carmichael was run over, her body was found lying on Walker Drive on the eastside of the intersection in the eastbound lane outside the lines of the pedestrian crosswalk, east of the north-south pedestrian crosswalk.

The investigating officers also measured the distance of where Erica Carmichael’s body had been lying in relation to the south curb of Walker Drive and the pedestrian crosswalk and determined that she had been lying five meters north of the south curb of eastbound Walker Drive and four meters east of the pedestrian crosswalk. [ 56 ] It should also be noted that Constable Wright said that the width of a normal lane is about 3.5 meters and that because the eastbound lane is wider than one lane but narrower than the width of two lanes he estimates the eastbound lane to be 3.5 meters to 7 meters in width.

However, the to-scale map shows the width of the eastbound lane at the crosswalk area to be approximately 12 meters, since the southeast curb is curved and the eastbound lane narrows to about 5 meters further east of the intersection. Therefore, the southeast corner appears to accommodate right turns for tractor-trailers. (vi) Finding the driver of the transport truck that ran over Erica Carmichael

[ 57 ] The white-coloured transport truck that came into contact with Erica Carmichael did not stop and continued travelling eastbound on Walker Drive. Although several witnesses saw Erica Carmichael being run over by the rear wheels of the trailer being pulled by the transport truck, no one saw who was driving the transport truck or get a description of the driver, nor did anyone get the license plate of the transport truck or any company names that were on the tractor or on the trailer.

At first, the police suspected a hit- and-run traffic fatality. [ 58 ] In their investigation of the fatality, police officers took statements from witnesses and attended at various buildings or locations around the intersection of Torbram Road and Walker Drive, canvassing for surveillance videotapes. The transport truck that ran over Erica Carmichael was described by witnesses, who were at the intersection at the time in question, as being white in colour, that the tractor portion had a sleeper berth and that the trailer was 53 feet long and also white in colour.

One witness also described the rear doors of the trailer as being red or brown in colour. [ 59 ] However, but for some luck and the tireless work of the Peel Regional Police, the driver of that transport truck may never have been found or identified. [ 60 ] Before charging the defendant as the driver, the Peel Regional Police originally treated the traffic fatality as a hit-and-run incident and canvassed the area for surveillance videotapes, and made a broadcast for any witnesses that may have seen Erica Carmichael being run over on December 1, 2010, or for any information that could help them find the transport truck and its driver.

Of the several officers involved in the investigation, Constable Tracey had been assigned to canvas the area around the intersection for surveillance tapes. After he reviewed surveillance tapes from the area, he identified a suspect transport truck and trailer that he believed was the vehicle involved in running over Erica Carmichael based on the time that the event had occurred. He then sought assistance from Adrian Hamill, who was involved in the trucking business, to identify the type or make of the truck on the video.

Hamill informed Constable Tracey that the truck on the video that was suspected of running over the pedestrian was a Freightliner Columbia with a sleeper berth and dark wheel wells or fenders. Constable Tracey also knew from witnesses at the intersection when the pedestrian was run over that the truck involved was white in colour, pulling a 53-foot trailer, and had a sleeper berth.

In addition, Constable Tracey believed that because of the turn made by the truck in the video that it had to have been made by a driver that knew the area well. [ 61 ] On December 7, 2010, Constable Tracey set up in the Petro-Canada gas station, which is located in the northeast corner of the intersection, hoping to locate the suspect truck, relying on his reasoning about the driver being familiar with the area and the intersection. At 5:19 p.m. on that day, Constable Tracey observed a transport truck with a trailer travelling northbound on Torbram Road making a right turn onto Walker Drive.

The truck matched the description of the suspect truck, in that it was white in colour, pulling a trailer that was white in colour, had a sleeper berth, and had dark-coloured fenders on the cab. Constable Tracey stopped this truck and learned that the driver of the truck he had stopped was Dhan Singh Gill (the “defendant”). Furthermore, Constable Tracey determined the transport truck’s make was a Freightliner Columbia. The defendant then agreed to accompany Constable Tracey to the Major Collision Bureau located at 180 Derry Road and consented to the police searching the truck he was driving.

Moreover, the defendant cooperated with Constable Tracey and voluntarily answered questions from Constable Tracey that were also videotaped (see Exhibit 15).

Constable Tracey also said the electronic driver’s logs for the defendant’s truck indicated that the defendant drove the truck on December 1, 2010, and that the truck was in Brampton on that day. [ 62 ] Furthermore, during the questioning by Constable Tracey on December 7, 2010, the defendant stated that he was the sole driver of the Freightliner Columbia truck, that he drove that truck on December 1, 2010, that he had gone through the intersection at Torbram Road and Walker Driver on December 1, 2010, and that he remembered after he dropped off his truck for the night at the Trojan Court lot that he had driven back toward the intersection and that it had been blocked by police cars with flashing lights.

He also said that he does the same trip, five days a week from Monday to Friday, of hauling a load of auto parts to the Ford plant in Dearborn, Michigan and then returning to the lot on Trojan Court through the intersection at Torbram Road and Walker Drive to park his tractor- trailer for the night. (vii) The regulatory proceeding [ 63 ] After police officers from the Major Collision Bureau of the Peel Regional Police officers interviewed witnesses, including getting the defendant’s statement; reviewed surveillance videos from the intersection, surrounding area and from a Brampton Transit bus; sought experts to identify the make or model of the suspect transport truck seen on the surveillance videos; obtained information about the 9-1-1 calls; photographed the intersection and the defendant’s tractor-trailer; collected and submitted samples from the defendant’s tractor-trailer to the Centre for Forensic Sciences; mapped the intersection and produced a to-scale map of the intersection, prepared charts and Google maps, and after completing their investigation, it was decided that the driver of that transport truck, Dhan Singh Gill (“the defendant”), would be charged under s. 142(1) of Ontario’s Highway Traffic Act, R.S.O. 1990, c.

H.8 , for committing the offence of “right turn not in safety”.

[ 64 ] A

Part III information was then sworn on February 11, 2011, with the defendant being served with a summons on February 28, 2011, informing him to appear in court on April 7, 2011, for the “right turn not in safety” charge. After several more appearances, the matter was set down for a three-day trial to commence on February 22, 2012. [ 65 ] Furthermore, in the trial held on February 22, 23 and 29, 2012, ten witnesses testified. The witnesses are in the order that they testified:

(1) Gordon Rockett , a witness who had been driving a motor vehicle westbound on Walker Road and stopped in the left-turn lane for a red light at the intersection at the time of the collision and made a 9-1-1 call;

(2) Joven Ramirez , a passenger in a van going westbound on Walker Road and stopped for a red light at the intersection in the left-turn lane at the time of the collision;

(3) Glen Pollock , a passenger in the same van westbound on Walker Road and stopped for a red light at the intersection in the left-turn lane at the time of the collision and made a 9-1-1 call;

(4) Adrian Hamill , who is employed by Freightliner and qualified as an expert for the identification of transport trucks;

(5) Nadine Edwards , manager of safety compliance for TTR Transport;

(6) Constable Dave Elson , the first police officer to arrive at the scene and who took statements from witnesses at the scene;

(7) Constable George Wang , a police officer in the Major Collision Bureau who operated the Total Station instrument and mapped out the intersection and produced a to-scale diagram of the intersection of Torbram Road and Walker Drive in Brampton;

(8) Steve Reynolds , who was qualified as an expert on the identification of transport trucks;

(9) Constable Douglas Tracey , the police officer who found the suspect transport truck and who took the statement from the defendant; and

(10) Constable Kenneth Wright , the accident reconstructionist, who was qualified as an expert on collision investigation and reconstruction. [ 66 ] After the trial and counsel submissions were completed, judgment was reserved and the matter adjourned to July 16, 2012, for judgment. (

c) SUMMARY OF TESTIMONY [ 67 ] Ten witnesses testified during the trial. The following is a

summary of their testimony:

(1) GORDON ROCKETT (witness who had been driving a motor vehicle that had been the second vehicle stopped for a red light at the intersection facing west in the designated left turn lane on Walker Drive at the time of the contact between the pedestrian and the transport truck and who called 9-1-1) [ 68 ] Gordon Rockett testified that he is 33 years old and employed in the logistics business. His company is located on Summerlea Boulevard.

He also said he had just finished work at 5:30 pm sharp, which is the same time he finishes work every day, and had been driving westbound on Walker Drive, taking his usual route to go home. He also said that he was stopped at a traffic light, second in line in the left-turn lane.

While waiting for the light, he said he happened to look to his left and observed a pedestrian going to cross the street and a large 16-wheel tractor-trailer turning at the same time, which he thought could be close. [ 69 ] Rockett said he then observed the pedestrian walk into or come into contact with the centre of the cab portion of the tractor- trailer on the passenger side and immediately fall on the ground. He then observed both sets of wheels on the trailer drive over the body of the pedestrian. From what he had just witnessed, he said that he was absolutely in shock.

He also said the truck just then kept going. [ 70 ] Furthermore, Rockett said the tractor-trailer had been a white cab with a white trailer. However, he did not recall the markings on the cab unit. He also said the cab was a longer style cab and was not sure if it was a sleeper unit. He also knows the trailer had been 53 feet long because of being in the logistics business. In addition, he said the tractor-trailer had been moving northbound on Torbram Road before making a right turn onto Walker Drive.

He also said he did not see the tractor-trailer stop, but that it had proceeded to make a normal right-hand turn at a normal speed. In addition, he said the tractor-trailer had been going at quite a slow speed when making the right turn at the intersection, at approximately 10 k.p.h. [ 71 ] Moreover, Rockett said it was dark at 5:37 p.m. He also said that when he got to the intersection at Torbram and Walker there had been another vehicle in front of him, although he does not recall the make of the car, only that it was a four-door sedan.

Then, when the light for Torbram Road turned green he said the vehicle that had been directly stopped in front of his vehicle made a real sharp U- turn, then stopped beside him, and the driver of that vehicle turned to him, looking shocked, and indicated to Rockett that he would follow that truck. However, he did not get the name of that driver.

[ 72 ] In addition, Rockett said he heard someone shouting to call 9-1-1. He then stepped out of his car and went to survey the situation. He then fumbled with his cellphone before dialing 9-1-1. He also said he had been driving a grey-coloured Ford Fusion and had not moved his car and left it in the same place for three or four hours. [ 73 ] Rockett also said that it had been dark and cold at early evening, on the first of December. After the accident occurred, he said the traffic was still heavy and cars continued to drive by.

He also said he tried to protect, in a sense, the body from being hit because he believed other cars would not be able to see the body lying on the street because it was dark at that time. Moreover, he said he had tried to wave down cars approaching because of the body lying in the street. However, he said he had been standing on the street outside of his car when he called 9-1-1, but he stayed near his car.

In addition, he said he believed the body and belongings were hit by other vehicles, but is not certain if other vehicles had actually hit the body while lying on the street, since it could have also been the belongings that had been run over by other vehicles. When pressed about other cars hitting the body, he acknowledged that he did not actually observe other vehicles run over the body, but had seen the body rise a bit or thought he had witnessed the body pop up. [ 74 ] Furthermore, Rockett said 9 to 10 vehicles had continued to drive pass in an eastbound direction after the pedestrian was run over.

He then said he observed a large white truck also trying to make the same right turn, but this second truck did not complete the turn, had stopped mid-turn, and blocked the scene. He then heard sirens coming and said that an ambulance and the police started to arrive on the scene at the same time. [ 75 ] Rockett also said his planned route to go home that that evening had been to travel south on Summerlea Boulevard, then turn right onto Walker Drive, and then wait to make a left turn onto Torbram. [ 76 ] In addition, Rockett said he had observed the pedestrian step out into the intersection.

He also said the pedestrian had been hunched over trying to keep warm and had her head down and appeared to be looking down at the ground and did not seem like she was crossing the intersection. He further said she had been walking looking down, going north, and had walked straight into the intersection. Moreover, he said there is a crosswalk there and believes the pedestrian was inside the crosswalk toward the east crosswalk line, which is closest to where he had been positioned. [ 77 ] In addition, Rockett said he did not see where the pedestrian had come from.

He also said there is a bus stop at the corner, but does not recall seeing a bus. He said this bus stop is at the southeast corner of Torbram and Walker. However, he did not see her come from the bus stop. [ 78 ] Moreover, Rockett said the pedestrian had come into contact with the trailer, but then clarified the location as the centre portion of the cab of the tractor-trailer, left of the door. Specifically, he said the pedestrian had contacted with the back half of the cab unit.

He further said that when looking at the side view of the cab, then the door is in the centre and the engine is to the right, while the sleeper portion is on the left-hand side. [ 79 ] Rockett also said that when she had walked into the center portion of the cab on the passenger side she fell onto the ground and was then run over by both sets of tires or wheels of the trailer, while the traitor-trailer was completing the turn.

In addition, he said the pedestrian had been a maximum of 10 feet from the curb when the contact with the tractor-trailer had occurred. [ 80 ] Furthermore, Rockett said he had observed the pedestrian walk into the side of the cab portion of the tractor-trailer in question while crossing the street. He also said he did not observe the front of the tractor-trailer strike the pedestrian, but did see the tractor-trailer and the female pedestrian making contact with each other.

He also said that while the tractor-trailer was making the right turn the pedestrian had been by the door when she was struck. [ 81 ] In addition, during his testimony Rockett had drew on a blank diagram of the intersection, which had been created by Constable Wang of the Peel Regional Police, a red rectangle and a red arrow to the words “Rockett car” that he wrote in red, to indicate where he had been stopped at the intersection.

He also drew a red asterisk within the pedestrian crosswalk to indicate where he had observed the actual point of impact between the tractor-trailer and the pedestrian and a red arrow to represent the direction the tractor- trailer had been travelling from northbound Torbram Road to make a right turn onto Walker Drive (see Exhibit 2). Furthermore, he indicated on the diagram that the distance from the impact zone to the curb was about 10 feet. [ 82 ] Moreover, Rockett said that it had been no more than 30 seconds after seeing the collision that he had called 9-1-1. He was

also still talking with the 9-1-1 operator when the police arrived, which took a couple to a few minutes. When the police and ambulance arrived, he said the 9-1-1 operator told him that he could get off the line. [ 83 ] Rockett further said that the intersection had been illuminated by normal street lights, which were on.

He also said he had no difficulty seeing the pedestrian when he looked in that direction. [ 84 ] Furthermore, Rockett said the traffic light had been red for him while he had been travelling on Walker Drive toward Torbram Road, while the traffic light for the tractor-trailer that made the right turn would have been green. He also said he remembered coasting into position. [ 85 ] In addition, Rockett said he had observed the pedestrian walking a normal pace, that her hands were in her pockets, and that her head was looking down, but that he did not actually see her start to cross.

Furthermore, he could not recall if she had been wearing a hood or scarf, but does remember her wearing something to keep her head warm. He also said the pedestrian had been wearing a dark- coloured jacket, dark pants, and something dark over her head, but could not tell if it was a hat or scarf. He further said he thought the pedestrian’s whole outfit had been black. [ 86 ] Rockett also said he did not actually see the driver of the tractor-trailer in question or obtain a license plate number because seeing someone struck by a vehicle had been a shocking moment for him.

He also said there were no markings or colour on the tractor- trailer, except that it had been a larger cab unit with a bunk in it. He also recalls just a white colour, but could not say it was all white or recall any other colour that stood out. [ 87 ] In addition, Rockett agreed that hundreds of trucks would pass through the intersection at Torbram Road and Walker Drive on a daily basis and that he has seen many tractor-trailers of a white colour and that there are hundreds of white tractor-trailers.

Furthermore, he said there were probably numerous tractor-trailers at the intersection in question from 5:30 p.m. to 5:37 p.m. and that the area is an industrial area with loading docks, which require tractor-trailers to be in the area. However, he said he has not observed the areas where tractor-trailers park for the evening, but is aware that trailers are left in loading docks to be loaded. [ 88 ] Furthermore, Rockett said that before the tractor-trailer in question had turned right to go eastbound on Walker Drive he did not recall there being any other vehicles eastbound on Walker Drive.

(2) JOVEN RAMIREZ (front passenger in a vehicle that had been the first vehicle stopped for a red light at the intersection

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