Burlington (City) v. Mulhern, 2019 ONCJ 802

CITATION: Burlington (City) v. Mulhern , 2019 ONCJ 802 DATE: 2019-11-07 Information Number 1260-999-18-8386-00 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Regional Municipality of Burlington Prosecutor – and – Ryan Mulhern Defendant Heard on: July 22, 23, 2019 Decision Filed: November 7th, 2019 For the Crown (Prosecution): J. Coppolino For the Defendant: D. Paquette Gerry Manno, Justice of the Peace Central West Region Materials Cited: Statutes Cited: Highway Traffic Act, R.S.O. 1990, c. H-8, s. 130

Provincial Offences Act, R.S.O. 1990, as amended. Cases: R v. Dillman, [2008] O.J. No. 1120, OCJ. R v. Goldhawk, [2015] O.J. No. 5764, ONCJ. R v. Hawdon, 2014 CarswellOnt. 5067, OCJ. Payne v. Lane, [1949] O.J. No. 65 OHCJ. R v. Lifchus, (SCC), [1997] 3 S.C.R. 320. R v. J.M. Trevisan, [2009] O.J. No. 606, OCJ. R v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, (S.C.C.). R v. W.(D.), (SCC), [1991] 1 S.C.R. 742. Books: Libman, E., Libman on Regulatory Offences in Canada, (Earlscourt Press, 2002). Dukelow, D., Dictionary of Canadian Law 3rd ed. (Thomson-Carswell, 2004).

Exhibits: March 25th exhibits tendered Exhibit 1 – Collision Statement. Exhibit 2a – Photograph of roadway with skid marks. Exhibit 2b – Photograph of close up view of Exhibit 1 showing skid marks. Exhibit 2c – Photograph showing close up view of skid mark with tape measure. Exhibit 2d – Photograph of view looking westbound and showing Burger King entrance. Exhibit 2e – Photograph showing position of Defendant’s vehicle and the deceased. Exhibit 2f – Photograph close up of the felled motorcycle and deceased. Exhibit 2g – Photograph close up of the front of the Yaris (defendant’s vehicle).

Exhibit 2h – Photograph of close up of the front of the Yaris and a shoe sole print. Exhibit 2i – Photograph of one shoe belonging to the deceased and sole imprint pattern. Exhibit 2j – Photograph of personal items of the deceased strewn on the roadway. Exhibit 2k – Photograph showing a side profile of the Yaris and airbag deployment. Exhibit 2l – Photograph showing paint damage to the hood of the Yaris. Exhibit 2m – a view of the roadway from the front windshield inside the Yaris. Exhibit 2n – the same view as Exhibit 2m but a closer view. Exhibit 2o – view of the motorcycle laying on its left side on the grass.

Exhibit 2p – view of the front lights of the motorcycle. Exhibit 2q – side view of the motorcycle showing scratch marks below the seat. Exhibit 2r – close-up of the damage sustained by the motorcycle. Exhibit 2s – close-up of the wind screen and bent right hand controls on the motorcycle.

Exhibit 2t – Motorcycle laying on the ground with helmet in background. Exhibit 2u – close-up of damaged motorcycle with ARU hand and ruler in frame. Exhibit 2v – photo. of motorcycle in an upright position with Yaris in the background. Exhibit 2w – Motorcycle close-up and further points of damage noted. Exhibit 3a – C.V. of D.C. Oliver Caves of the ARU. – expert witness. Exhibit 3b – Collision Reconstruction Report dated Sept. 15, 2018. Exhibit 3c – Collision Reconstruction Distance Report dated May 8, 2019. Exhibit 4a – CCTV video. Exhibit 4b – another CCTV video. Exhibit 4c – CCTV video. Exhibit 5 – post mortem report. Exhibit 6 – SAE Technical Paper Series. Introduction: 1 . This is a

Part III Provincial Offence (POA) under the Highway Traffic Act, R.S.O. 1990, c. H-8, s. 142(1) . (hereinafter also referred to as the HTA ). The Information before the court charges that on or about the 2018 in the City of Burlington, Region of Halton, Mr. Ryan Mulhern a 44 year old driver of a blue Toyota Yaris (the defendant) while travelling in a westerly direction on Wyecroft Rd. in the town of Oakville, slowed and intended to turn left (south) to enter the Burger King Restaurant parking lot when he collided with an eastbound Harley Davidson motorcycle being driven by the 35 year old Mr. Joshua Wells.

The collision impact caused Mr. Wells to be catapulted from his motorcycle hitting the roadway, resulting in his death. 2 . The Accident Reconstruction Unit (ARU) attended the scene and after gathering evidence from the scene, produced a report which has been admitted as Exhibit 3(b). The Defendant was charged with making an ‘unsafe turn’ contrary to the HTA section 142(1). This offence is considered a strict liability offence. The initial onus is on the Prosecution to prove the actus reus on a beyond a reasonable doubt standard .

If the actus reus has been proven, then and only then, would the onus shift to the Defendant to prove on a balance of probabilities as to why they should not be held liable given they were duly and reasonably diligent under the circumstances and/or believed in a mistaken set of facts, which if true, would render the Defendant blameless. Decision of this Court 3 . The Court finds that the actus reus has been proven beyond a reasonable doubt given the particulars of this case, the actions of the driver, and after due consideration of all of the relevant circumstances surrounding this event.

Consideration has been accorded to the evidence as well as to the ‘voice’ of the expert opinion reported in the Accident Reconstructionist Unit’s report (hereinafter ARU). This decision renders the consideration of a due diligence defence as well as applicable penalties as live issues. Issues and Focus of the Court 4 . The offence of turn not in safety contrary to 142(1) of the HTA is a part three offence and considered a strict liability offence under the Provincial Offences Act (see also Sault Ste. Marie, supra ).

The Prosecution bears the onus of proving that the Defendant committed this offence ( the actus reus ) beyond a reasonable doubt. Reasonable doubt is best defined, most notably in two Supreme Court cases, namely, R v. W.(D.) and R v Lifchus. That onus never shifts to the Defendant.

5 . If the Prosecution is successful in convincing the Court that the actus reus has been proven, then and only then would the onus shift to the Defendant to show or prove to the Court, on a balance of probabilities basis, that he held a reasonable belief in a mistaken set of facts and/or he acted with due diligence . If he is successful in proving that, it is then open to the Court to find him not culpable despite the actus reus having been proven. 6 . It should be distinctly understood that the mandate of this Court is quite narrow.

It is to focus on the regulatory offence before the Court and on the respective onus of, and evidence presented by, each party. There are no civil/tort considerations being made or implied nor is there an assignment of blame in accordance with the principles of contributory negligence . Mens rea , which would be a hallmark of criminal trials is also not at bar and the prosecution does not have to prove intent or forethought to establish the charge. In fact, in R v. Kinch , where there is an accident, the focus remains on whether the driving was considered careless .

It is not focused on the consequences of the driving or accident. It must not focus on the consequences of injury and/or death (para. 51-52, supra) or on who bears the civil liability. Those concerns are potentially for a different court of competent jurisdiction to decide. 7 . Having said that, the Court is ever mindful of the sensitivity that accompanies tragic death and/or injury and the court is sympathetic to those consequences. Our sympathy goes out to the family members of the deceased. Our sympathy also goes out to the Defendant who we understand has suffered due to this accident.

There are probable emotional and psychological scars that the Defendant must likely endure for the rest of his life though we have no direct evidence to make this statement with confidence. In any event, though we do understand these consequences, the court could not, and has not, considered them in the determination of the actus reus or with respect to any defence mounted by Mr. Mulhern. 8 . The Court is also mindful that drivers are not expected to demonstrate a standard of driving perfection. What is reasonable under given circumstances must be considered and whether the driver’s (Defendant’

s) actions fall below that standard. 9 .

The Court, inter alia , must address the following questions: • Has the Prosecution proven its case (the actus reus ) beyond a reasonable doubt? • Has the Defendant articulated a due diligence defence or believed in a mistaken set of facts on a balance of probabilities that should render him not culpable? • Within a due diligence defence, the Court asks that after due consideration of the evidence and all of the circumstances surrounding the accident, was there something more or better that the Defendant could have reasonably done to mitigate or avoid this tragic accident? • Should the Court find that the Defendant is guilty as charged, and assuming the due diligence defence has failed, what would the appropriate penalty be using the sentencing principles of Specific and General Deterrence once factoring in the sentencing submissions regarding penalties from both parties?

The Law The relevant law is contained in section 142(1) of the HTA. That subsection reads as follows: The driver of operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.

Witness Evidence Witness #1 - Officer Oliver Jabrail

10 . Officer Jabrail testified that he had been an officer since 2014. He was dispatched to the scene of the accident at around 4:05 p.m. and upon arrival saw an adult male lying on the ground, not moving, face down in a pool of blood. 11 . Though the victim was not responsive to verbal commands, he reacted with a cough after the officer performed a sternum rub. The victim was turned over slightly to ensure breathing passages were not already obstructed and to keep them clear. Unfortunately, despite best efforts, the victim succumbed to his injuries at 4:19 p.m. 12 .

The officer noted the presence of a blue Toyota Yaris on scene with extensive front end damage (the Defendant’s vehicle). He also noted the Defendant at the curb, visibly upset and stating that he had killed someone. 13 . The ARU arrived shortly thereafter and began to take measurements and gather evidence at the accident scene. They determined that the road narrowed from two lanes going each way to one lane for eastbound and one lane for westbound traffic. They found the deceased lying on the road wearing a leather jacket and a helmet was found nearby.

Attempts to speak to the Defendant were not successful as he was distraught and possibly in the state of shock. Witness #2 – Danny Baskin 14 . Mr. Baskin testified that he had just picked up his new vehicle from the dealership and was driving home with his wife Melissa who was seated in the front passenger seat. He said they were travelling westbound on Wyecroft Rd. directly behind the Yaris. Wyecroft Rd. was (and is) populated by various car dealerships and some fast food restaurants. 15 . Mr. Baskin described the conditions that day as being hot, clear and sunny.

He believed there were two lanes going westbound but that the lanes were narrowing down into one westbound lane and one eastbound lane. He testified that there was little to no traffic on that date, time and place. 16 . The witness said that the Defendant’s vehicle appeared to be slowing down to presumably make a left-hand turn to enter the restaurant parking lot. This witness recalled that he was following this blue car and thought that there was going to be an accident.

Not wishing to sustain any damage to his new vehicle, he increased the distance between his car and the one ahead which he believed was about 5 metres away from his vehicle. 17 . Mr. Baskin had no recollection if the Defendant’s vehicle had his turn signal on but assumed he was turning left from the way the Defendant positioned himself in the westbound lane and because he was slowing down. He believed that there was solid line that separated eastbound from westbound traffic but could not recall the colour of that line. 18 .

The witness said that he saw the Motorcycle (also referred to as ‘MC’) just seconds before the collision and that it appeared as though the MC driver had lost some control based on his observation that the front tire and steering handle bars appeared to be ‘wobbling’. He described what he saw as a MC driver losing steering control but not a total loss of control. 19 . Mr. Baskin recalled that the point of impact was in the middle of the road but could not recall whether the blue Yaris (the Defendant’s vehicle) had come to a complete stop or was still creeping forward before impact.

Baskin did not recall if he saw brake lights on the Defendant’s vehicle activated or not. He also believed that the Defendant had not yet commenced his turn before the impact. 20 . The Witness thought that the collision looked ‘rough’ and that he noticed parts or objects flying through the air. He slowed down and moved his vehicle to the right-hand shoulder of the roadway to avoid damage to his new car. 21 . Baskin noted that the MC driver was lying face down, partially still in the eastbound lane. His legs appeared to be tucked-in underneath his torso.

He then went over to the Defendant who was exiting his vehicle. Mr. Baskin described the Defendant looking as if he was in shock. Mr. Baskin’s wife called 911 and neither witness touched any of the debris on the road or the

deceased. 22 . On cross-examination this witness testified that he could not estimate at what speed the Defendant was travelling. At the accident scene, he recalled telling an officer that he thought the estimated speed might have been approximately 60 kph. 23 . Mr. Baskin concluded that he could do nothing for the victim and so turned his attention to the Defendant. Witness #3 – Melissa Baskin 24 . Ms. Baskin was a passenger in the vehicle travelling westbound and immediately behind the Defendant’s vehicle. As with her husband, she described the day as sunny, hot and clear.

She agreed with the first witness’s observations that the roadway was not busy with traffic and that she believed that her vehicle was about 5 car lengths behind the Defendant’s car. Both were travelling westbound and she estimated the Defendant’s speed and that of her vehicle, at 40 k.p.h. 25 . This witness noted that the MC moving eastbound and the Defendant’s vehicle about to turn left appeared as though they were going to collide. She speculated that the MC over-corrected his steering and the bike became a ‘ bit wobbly ’.

Though it was a bit wobbly , she believed that the MC never veered from his lane and remained in the eastbound lane of Wyecroft Road. 26 . Similar to her husband’s (Witness #1) testimony, this witness said that she did not see or recall any brake lights in operation on the Defendant’s vehicle nor did she recall seeing any rear signal lights flashing. Additionally, she testified that she could not recall the position of the vehicles right before the collision as she somehow knew that an accident was about to happen and was busy reaching for her phone to call 911. 27 .

The witness did not believe that speed was a factor for either of the affected parties. She said she herself had been a MC driver for over 10 years and felt that the MC driver might have over-corrected and his handle bars became ‘ wobbly ’ as a result. She believed she saw the MC driver lose control just seconds before impact. 28 . Similar to witness #2, this witness could not tell or recall whether or not the Yaris had come to a complete stop or was inching forward just before impact. 29 .

The witness testified that she and her husband (witness #2 above) did not touch or move any of the debris and she thought that emergency personnel arrived relatively quickly. She believed that the posted speed on this stretch of road was 50 k.p.h. and that to the west end of Wyecroft. There was a curve or bend in the road at the western end of Wyecroft Rd. Witness # 4 - Officer Jesse Vandervelde 30 . This Halton Regional Police Services Officer (HRPS) testified that he had been with the police since 2015. On this day, he was in full uniform when he was dispatched to attend an accident scene at 4:09 p.m. 31 .

Once at the scene, this officer observed the blue Yaris facing westbound just over the centre line near the driveway entrance to the Burger King restaurant located on the south side of Wyecroft Road. 32 . The officer also noted that there was a Harley Davidson MC laying on the ground facing eastbound. He also observed the deceased laying on the road nearby. Officer Vandervelde scanned the accident scene anticipating the arrival of the ARU. He also noted a male at the curb visibly upset and being consoled by a female. 33 . The officer established that Mr.

Mulhern was the driver of the blue Yaris, cautioned him and, based on his initial interview formed

an opinion that the Defendant was not impaired, that he understood the caution given to him and that the questions he asked were followed by appropriate answers from the Defendant. 34 . The Defendant admitted to police on that day that he had been travelling westbound but that he did not hear or see the MC prior to the impact. He confirmed that his intention was to turn left to enter the Burger King parking lot and confirmed that there was little to no traffic on Wyecroft Road at that time. 35 . The Defendant told the officer that he recalled hearing a bang and felt the deployment of his airbags.

He contended that he was travelling at about 15 k.p.h. when he was going into his turn. Later, the police interview continued in the Burger King parking lot where the Accident or Collision Report (statutory compelled statements) was completed with the assistance of the police, if required. The Defendant filled out that report (see Exhibit 1) at around 5:12 p.m. In this statement to police, the Defendant repeated that he had not seen the MC pre-impact but that he did signal his intention to turn and that he slowed down to effect that turn. He estimated his turning speed to be about 10 k.p.h.

Witness #5 – Officer Thien-an Vu 36 . This witness was an officer with the Accident Reconstruction Unit (ARU) since 2017. The ARU is called in when an accident involves serious injury and/or death. Officer Vu and Officer Oliver Caves were both assigned to the ARU (see Caves testimony below - Witness #6). Both Caves and Vu would normally divide up the workload at an accident scene and divide up the data gathering function as well as the production and distribution of a final report. The photos (see Exhibits 2(

a) to 2(w)) were taken by trained personnel. 37 . Upon arriving at the scene, this officer conferred with Officer Jabrail (Witness #1 above) who provided the ARU his thoughts as to what transpired that day. In describing the accident scene, officer Vu referred to Exhibit 2(a) – 2(

w) which were photographs taken at the accident scene. 38 . Officer Vu also testified that the brakes were tested and found to be operational. The police transported the MC back to the workshop to continue their examination. The MC helmet was found to be within lawful parameters. The ARU was able to retrieve two CCTV videos from separate sources. One source was from Budd’s Motor Vehicle Dealership (also referred to as the Range Rover Video) and another from the Tim Horton’s premises. Both videos were looking westbound on Wyecroft.

One video appeared to be showing the accident from a greater distance than the other video which recorded events from a closer vantage point. The Prosecution conceded that the better of the two CCTV videos appeared to come from the Tim Horton’s premises. Witness #6 – Officer Oliver Caves – expert witness and ARU officer 39 . Officer Caves of the HRPS had been qualified as an expert and was assigned to the ARU. (see Exhibits 3(a), 3(b), and 3(c)). 40 . Officer Caves was asked detailed questions regarding the ARU report (see Exhibit 3(b)).

On page 13 of that report, the author suggested that two other cars on the road that day may have played a role in obstructing the Defendant’s vision. These two vehicles seen on CCTV video entered the roadway from the north side of Wyecroft from private driveways and turned right to go westbound. They made their turns and were in front of the Defendant’s vehicle. 41 . The Motor Vehicle Report (see Exhibit 3(b)) suggested that the speed being travelled was between 57 k.p.h. and 67 k.p.h.

This was an estimate and not directly derived from any ‘black box’ data as recorded by on-board computer systems belonging to the Yaris. 42 . Most importantly, Officer Caves testified that the Yaris had been over the centre line, and in the eastbound lane of traffic by about one metre just before the two vehicles collided.

43 . The Distance Report (see Exhibit 3 (c)) included the ‘black box’ download from the Yaris and the measurements taken to calculate distance. For instance, on page 2 of that Report, the speed was estimated at 46 k.p.h. at 4.7 seconds prior to the collision. A table of speeds and distances were included in the Distance Report which appeared to confirm that the Defendant’s vehicle was indeed slowing down prior to the collision.

At collision and just before the air bags deployed, the vehicle was moving at 12 k.p.h. which may have implied that the Yaris or Defendant’s vehicle was not completely stopped but whose wheels were in continuous motion albeit, at different slowing speeds up to the point of impact. The brake switch data provided evidence that the car’s brakes were being deployed at the time. 44 . The ARU also determined that the R.P.M.’s were constant which the ARU believed supported the hypothesis that the vehicle was likely idling from 4.7 seconds pre-impact right up to the point of impact. 45 .

On the second day of this trial, the two CCTV videos were viewed by the Court. (see Exhibits 4 (a) & 4 (b)). After viewing these brief videos, several times during the trial, the Prosecution pointed out that the Defendant’s vehicle appeared as though it was almost at a complete stop prior to the collision. Given the fact that the video was shot from a great distance and was very brief, it was not possible to see where the MC had come from, only that it was eastbound on Wyecroft Road and was within the eastbound lane. 46 .

Defendant’s Counsel contended that the MC speed was a factor in this collision and believed that the possible excessive speed of the MC should be factored into the Court’s deliberations and the presence of such factors were enough to create reasonable doubt in the Court’s mind. 47 .

Counsel pointed to Exhibit 6 which was the study of braking and motor vehicle collisions, and on page 108 of that study, it confirmed the premise that if one only employs the rear brakes and not the front as well, then the distance required to come to a complete stop is greater than if both sets of brakes had been engaged (front and back brakes). In the case at bar, the ARU determined that the rear brakes alone had been employed on the MC. Counsel said when this is combined with the driver’s excessive speed, that these combined factors were significant causes of the collision. 48 .

Officer Caves concluded that the Defendant must have sensed the upcoming collision given the vehicle’s brake data and the skid marks on the roadway. 49 . Officer Caves told the Court that in this vehicle the data capture was 4.7 seconds prior to the collision itself. That is to say, that upon impact, the vehicle’s computer automatically went back and retained 4.7 seconds worth of data prior to the point of impact. This data capture confirmed that the Defendant was not speeding and appeared to be slowing, not accelerating or braking. 50 . The Defence referred to photo Exhibit 2(

x) which implied that the curve on the west end of Wyecroft was pronounced and tended to obscure vehicles travelling eastbound from the sight of those moving westbound. Counsel indicated that this was also a factor in the collision. 51 . Counsel argued that the MC’s speed was probably higher than that estimated by the ARU thereby reducing the reaction time on the part of the Defendant. 52 . Photo Exhibit 2(

y) showed a close-up of the Defendant’s vehicle which Counsel contended overly exaggerated the resting place of the Yaris, placing it farther over the centre line than it truly had been pre-collision. The Prosecution took the opposite view that the vehicle would have been pushed back into its own lane at collision. 53 . Despite some debate with respect to how far the Defendant’s vehicle had been over the centre line, Officer Caves confidently told the court in certain terms that the Defendant’s vehicle was over the centre line immediately before the collision. Defence

54 . No defence was raised by the Defendant who chose to not take the witness stand. Position of the Parties Prosecution’s Position 55 . The Prosecution reminded the Court that the charge is a strict liability offence where the Crown or Prosecution bears the burden or onus to prove the actus reus to the court on a beyond a reasonable doubt basis and then, and only then, would the onus shift to the Defendant to show if they had been duly diligent and/or believed in a set of facts that turned out to be mistaken and would render the Defendant not culpable, thereby avoiding liability. 56 .

The Prosecution pointed out that the Defendant could have mitigated, if not avoided the accident had they come to a full stop and had they not moved over the centre line that divided eastbound from westbound traffic. The ARU determined that the Defendant’s vehicle was over that centre line by about one metre and that they said was a manoeuvre that was not done in a safe manner. 57 . In R v. Dillman (2008), the arbiter concluded that drivers cannot or should not assume that other drivers obey the speed limit at all times.

Therefore, the onus still belonged to the Defendant even in instances where the other driver was thought to be speeding. 58 . Additionally, the Prosecutor contended that the first two witnesses travelling in a vehicle directly behind the Defendant appeared to be more aware of their surroundings than the Defendant himself. They saw the MC and based on conditions, they predicted that a collision was about to happen. This was compared with the Defendant’s assertion that he did not see the MC before impact partly due to or that the MC was obscured from the vision of westbound traffic. 59 .

The Prosecutor referred to Exhibits 2(

a) and 2(

c) which illustrated the relative positions of the Defendant’s vehicle and the solid yellow centre dividing line in the road. The Prosecution contended that the MC driver was properly in his own Eastbound lane and that the Defendant’s vehicle was over that centre line just before impact or collision. They also asserted that there were no adverse road conditions to be factored into the court’s consideration. These would include bad weather, darkness, wet roads, heavy traffic etc. 60 .

As to the speed of the MC on that date, time and place, the tire marks on the roadway and the vaulting of the body at the point of collision suggested that the speed was between 53 k.p.h. and 67 k.p.h. compared with the posted speed limit of 50 k.p.h. The Prosecution contended that despite the speed being elevated over the posted speed limit, the overage in speed was not excessive to the point that would have attracted an officer to stop the vehicle for speeding. 61 . The Prosecution referred the Court to the photographic Exhibits marked 2(g), 2 (h) & 2(i).

Those photos depicted the point of impact and that the MC quite likely had his foot extended and pressed against the Defendant’s hood at the point of impact as a manoeuvre to attempt to buffer the impact points. The print left on the vehicle body matched the print pattern found on the sole of the victim’s shoes. 62 . Photo Exhibit 2(

m) was taken from the inside of the Defendant’s vehicle and showed the viewpoint a driver would have looking westbound down Wyecroft Rd. through the vehicle’s front windshield. The Prosecution tendered this evidence to show that the Defendant would have had an unobstructed view looking westbound for quite a distance and was not impacted by the curve in Wyecroft Rd. which was located on the western edge of Wyecroft and further to the west of the collision point. 63 .

The Prosecution argued that even if the Defendant’s view was fully or partially obstructed, he would have (or should have) done what any other prudent and reasonable driver would have done under those circumstances and come to a complete stop before making a turn and NOT cross the centre line until they were reasonably certain that the move could be done safely. 64 . The MC driver was in his eastbound lane and slightly off centre which was generally considered correct positioning of a MC

sharing the road with other drivers. Being slightly off-centre and towards the left hand edge of that lane, is meant to ensure that theMC was visible to other drivers. 65. The Prosecution asked the Court to enter a conviction contrary to section 142(1) of the Highway Traffic Act and furthermore,asked the Court to find that a due diligence defence had not been made out by the Defendant. Defence Submissions 66. Counsel reminded the Court that the Defendant was not speeding (46 k.p.h. moving down to 12 k.p.h. at the point of impact. 67.

Counsel also stated that distance and related reaction times were considerably truncated given the speed that the MC wastravelling. The Defendant’s vehicle was not accelerating and in fact, had been slowing down. 68. The configuration of the roadway made a big difference here. Counsel argued that the mature bushes and hydro poles with thecurve in the road on the west end of Wyecroft all played a role in restricting vision for westbound drivers. 69. Counsel maintained that the MC speed as estimated by the ARU, was an underestimation of the actual speed.

Considering that theMC was travelling 67 k.p.h. with the application of the back brakes then it stood to reason the MC must have been travelling at ahigher speed absent simultaneous application of the brake. 70. Counsel agreed that the Defendant’s front tire had crossed the centre yellow line. However, in contrast to the ARU estimates,Counsel felt that the resting position of the Yaris had been exaggerated by the impact with the MC, which he contended pushedthe Yaris more into the eastbound lane. 71.

Counsel asked the Court to consider that the Defendant was moving at a very slow speed, had signalled his intention to turn andlooked both ways before proceeding. Accepting all of this would imply that even in the face of a proven actus reus, the Defendantshould be found to have acted reasonably, with due diligence and should ultimately be found NOT culpable of the offence beforethis Court. Analysis & Review of the Common Law 72. According to the Ontario High Court decision in R v.

Lebedorf, [1962] O.W.N. 233, section 142(1) of the HTA created twoseparate offences; the offence of failing to see first that such movement can be made in safety and the offence of failing to give asignal plainly visible to the operator of any other vehicle that may be affected by such movement. The Defendant was chargedwith the first of such offences, that of turn not in safety. There has been common law since Lebedorf that speaks to signallingone’s intention and signalling is required even when there are no other vehicles on the road, it must apply even if you believe youare the lone traveller on a highway.

However, in this case, there was some evidence from the Defendant himself that he engagedhis turn signal. However, this could not be corroborated by the Witnesses who did not recall seeing any turn signals activated. Inany event, in the case at bar the activation of the signal was not at issue, it is the first ‘branch’ of this offence that was beingargued in this case. 73. In his decision in R v. Dillman, [2008] O.J. No. 1120 (O.C.J.), Justice Duncan determined that the offence of turn not in safety setout in 142(1) of the HTA was an offence of strict liability.

Accordingly, this offence and the case at bar is considered a strictliability offence. In reaching his conclusion, Justice Duncan, inter alia, provided the following reasoning: “There is a presumption in favour of strict liability. The legislature must make a contrary intention clear. As noted in Kanda, that is R v.Kanda, 2008 ONCA 22 , [2008] O.J. No 80 (O.C.A.) the overall regulatory scheme of the HTA is neutral as between strict andabsolute liability. The penalty, being the general penalty applied to the HTA offence, is similarly neutral.

The particular subject matter of 142(1) – a rule of the road respecting turns and lane changes – is in itself non-indicative, though I think itis fair to suggest that if an equipment violation as in Kanda is considered to be a strict liability offence then it should follow that a rule ofthe road regarding vehicle movement should be similarly viewed. This is particularly so when another

section speaking specifically toleft turns, 141(5) HTA, is conceded by the Crown to be a strict liability offence. Also instructive by way of comparison is City of Levis v. Tetreault (2006), 2006 SCC 12 , 207 C.C.C. (3d) 1 S.C.C. where anoffence of operating a vehicle without having paid registration fees was held to be a strict liability offence. The legislature, aware of the issue, had not chosen words that point to absolute liability for this offence. The trial justice placedemphasis on the use of the word “shall” in the section. However, as Kanda suggested this word should not be over-emphasized.

Moststatutes creating prohibitions contain similar mandatory words. They should not be seen as ousting exceptions or legally recognizeddefences. Further, the whole phrase is “shall first see that the movement can be made in safety.” The very concept of doing something“in safety” suggests to me a fluid standard where what is required will vary according to the circumstances, unlike a mandatory directionthat a vehicle shall stop at a red light: R v. Kurtzman (1991), (ON CA), 66 C.C.C. (3d) 161 O.C.A.

I view the phraseas equivalent of saying “shall first ensure that the movement can be made in safety: words that don’t suggest a guarantee but rather theexercise of reasonable care: see R v. Z-H Paper Products Limited (1979), (ON SC), 27 O.R. (2d) 570 O. Gen. Div. Inany event, even if these

interpretations are not sound, the language does not clearly suggest absolute liability and the presumption againstthat categorization stands.” 74. Considering the determination made in R v. Dillman, supra., in categorizing the offence of turn not in safety as one of strictliability, the Prosecution is not required to prove mens rea. If the Prosecution can prove the elements of identification of theDefendant and the actus reus, beyond a reasonable doubt, then the mental element of negligence is imported into the offence on aprima facie basis.

In that circumstance, the legal burden of proof will then shift to the Defendant on a balance of probabilitiesstandard, that in committing the prohibited act, the Defendant acted with due diligence or believed in a mistaken set of facts thatwould render him not culpable of the offence, despite the proof of the actus reus. 75. Justice Duncan in Dillman (supra), also concluded that; All of the circumstances must be considered in determining whether a turn was made in safety.

Where, as here, the visibility ofoncoming traffic is limited, it is my view that safety requires that the left-turning driver make allowances for the predictableshortcomings and potential negligence of drivers who may soon appear. While it has sometimes been said that a driver is entitled toassume that other drivers will obey the rules of the road, I think there are limits to such an assumption particularly where there is an onusto do something “in safety”.

In my view the safe left-turner is not entitled to assume that all other drivers will be strictly adhering tospeed limits or paying perfect attention to the road ahead. On the other hand, it would be an unreasonable standard of care andtantamount to imposing absolute liability to hold that the turn was not made in safety because an accident was caused by, for example,the gross speed or gross inattention of an oncoming driver. Issues to be Decided 76. The court must answer the question as to whether the Prosecution has met its onus of proving the actus reus on a beyond areasonable doubt standard? 77.

Additionally, if the Prosecution has met this onus, then the Court asks, has the Defendant acted in a duly diligent fashion or did hebelieve in a mistaken set of facts which if present and relied upon would render him blameless despite the actus reus having beenproven? 78. As a subsection or consideration of a due diligence defence, the Court always asks itself whether there was anything more ordifferent that the Defendant could have reasonably done, or should have done to mitigate or to completely avoid the accident?

Conclusion and Decision of this Court 79 . The court has considered all the circumstances, the evidence and the ARU report in its decision. 80. The court is also mindful of the instructions or guiding principles provided in the common law. All the relevant circumstances must be considered in reaching a decision. The burden of proving the actus reus always remains the concern of the Prosecution and never shifts to the Defendant. 81 .

After due consideration of all the evidence including the circumstances surrounding this tragic accident, this Court finds on behalf of the Prosecution and finds that the Prosecution has met their onus of proving the actus reus to this Court on a beyond a reasonable doubt standard. 82 . Inter alia , this Court’s decision is based on the conclusions reached by the ARU in their reconstruction report (see Exhibit 3(b)) and upon the evidence at trial.

Specifically, • That the victim was well within his own eastbound lane at all times; • That the Defendant never saw the MC yet witnesses travelling behind his vehicle and further away from the approaching MC, were able to not only see the MC but were able to predict that a collision between the two was about to happen and took defensive steps to increase the distance between them as a result; • That the ARU report emphatically placed the Defendant’s vehicle over the dividing centre yellow line which separated eastbound and westbound traffic.

The onus was always on the Defendant to not move over that line into the path of oncoming traffic without first establishing that movement could be done safely and without affecting other drivers adversely; • The evidence would suggest that once the MC driver saw the turning vehicle, he tried to adjust his direction but lost some control which was evidenced by his handle bars becoming somewhat ‘wobbly’.

The witnesses felt that the loss in control did not constitute a complete or significant loss of control and the MC driver was able to stay within his eastbound lane throughout; • The evidence suggested that there were no adverse road or weather conditions to be factored in or considered by the Court.

As no Defence was called, the Court was not able to assess or consider a second or alternate version of events from the Defendant who chose not to take the stand and give evidence; • Having established the actus reus , the Court turned its mind to assessing whether the Defendant established that he had acted reasonably and in a duly diligent manner ; • Respectfully, the Court found that a due diligence defence failed given all the circumstances and given that the Defendant could have avoided or mitigated the accident by first coming to a complete stop before executing his turn.

More importantly he should have not permitted his vehicle to cross over the centre line and in the direct pathway of the MC and its driver until it was safe to do so; • The two witnesses located in the same vehicle behind the Defendant’s vehicle were able to see the MC from a greater distance and with some obscured vision compared with the Defendant who presumably had a better vantage point.

In the absence of any other impediments ie. mechanical failure and/or other adverse road conditions that might have played a significant factor in the collision, the Court concluded that the Defendant should have seen the MC driver, but for some unexplained reason, did not; • The Court also considered whether the Defendant’s vehicle was at the beginning of his left-hand turn or half way or more through that manoeuvre. The ARU unit report concluded that the Defendant was at the beginning of his turn.

• The Court did not agree with the Defendant’s assertion that hydro poles and the curve in the road (at the western edge of that roadway) impeded the Defendant’s ability to see the MC that day. The photographic exhibits, the evidence, the position taken by the witnesses and the absence of any adverse weather or road conditions that day would argue otherwise. 83 . The Court was left wondering why the Defendant was unable to see the MC prior to the collision that day.

The videos watched during the trial did not show any other significant traffic on the road moving either eastbound or westbound and that the Defendant’s vehicle appeared almost motionless in the middle of the roadway waiting to turn. The evidence also confirmed that the Defendant was slowing down just before making that turn. 84 . Having said that, and as an aside, if there was no oncoming traffic noted by the Defendant, why then almost stop before making that left-hand turn? Most drivers upon seeing no traffic coming from the opposite direction would simply slow their vehicles down to complete that turn safely.

In the absence of any oncoming traffic, a driver intending to turn, would not almost stop their vehicle. Their movement might be better described as one fluid movement without having to come to a complete stop upon seeing no other traffic being impacted by their manoeuvre. Logic would also dictate that the Defendant’s vehicle would have been further into the turn than at the beginning of such a turn. What caused the Defendant to almost stop his vehicle in the absence of oncoming traffic?

These questions remain unanswered however, the Court has concluded that it would be an error to dwell on them and factor them into the decision without foundational evidence. At this juncture these questions are simply speculative, and the Court has discounted their consideration in reaching its decision. 85 . For all the reasons above, the Defendant is convicted of contravening section 142(1) of the HTA and as such a conviction shall be registered on behalf of the Prosecution. 86 . The Court will now hear from both parties with respect to sentencing.

Respectfully submitted and filed with the respective parties November 7, 2019 G. Manno