Regional Municipality of Durham — v. —, 2019 ONCJ 284

ONTARIO COURT OF JUSTICE CITATION : Durham (Regional Municipality). v. Judges , 2019 ONCJ 284 DATE: 2019 03 22 COURT FILE No.: 5382340Z BETWEEN: Regional Municipality of Durham — AND — Erin JUDGES Before Justice of the Peace Kevin J.A. Hunter Heard on March 11, 2019 and March 22, 2019 Reasons for Judgment released on March 22, 2019 T. BEST....................................................................................................... for the prosecution S.

TALEBI................................................. student-at-law for the defendant Erin JUDGES JUSTICE OF THE PEACE HUNTER: [ 1 ] Erin Judges is charged with failing to yield from a private driveway as a result of a motor vehicle collision she was involved in with Philip Parsons’ vehicle on Bayly St. just east of Harwood Ave., Town of Ajax, Regional Municipality of Durham, on June 21, 2018. [ 2 ] The charging

section under the Highway Traffic Act reads: 139

(1) Every driver or street car operator entering a highway from a private road or driveway shall yield the right of way to all traffic approaching on the highway so closely that to enter would constitute an immediate hazard. [ 3 ] Ms. Judges pleaded not guilty and a trial commenced before me on March 11, 2019. I heard from three witnesses: Mr. Parsons, investigating officer Jeffrey Miller, and Ms. Judges. I heard submissions from the parties on March 22, 2019. [ 4 ] The pre-collision evidence is, for the most part, undisputed. At approximately 6:30 a.m., Mr.

Parsons was driving westbound on Bayly St. approaching Harwood Ave. At this location, Bayly St. has five lanes; two each for east and westbound traffic and one centre lane. Some dispute arose over the nature of this centre lane at the point of the collision. In my view, and the parties agree, the classification of this centre lane is immaterial to the yielding obligation placed upon drivers entering onto a highway from a private driveway, by virtue of the charging section. [ 5 ] As Mr. Parsons entered this lane to make his left turn onto Harwood Ave, he observed a red light at the intersection ahead of him.

He also observed a number of cars in the two westbound lanes stopped for the red signal. Mr. Parsons noticed a gap between stopped cars in the two westbound lanes ahead of him and to his right. He believed that this gap had been left intentionally by stopped westbound drivers to allow a vehicle to either enter onto or exit the highway across the westbound lanes. As it turns out, Mr. Parsons was correct. He observed Ms. Judges’ vehicle in a private driveway on the north side of Bayly St., apparently about to enter onto Bayly St. through this gap. [ 6 ] This was confirmed by Ms. Judges in her testimony.

She stated her intention was to drive through the gap left by the stopped westbound cars in order to proceed into an eastbound lane on Bayly St. She did so and collided with Mr. Parsons’ vehicle in the centre lane. [ 7 ] There was some dispute as to whether or not Mr. Parsons’ vehicle was stopped or moving at the time of the collision. In my view, I need not resolve this issue. Whether Mr. Parsons’ vehicle was stopped or in motion, Ms. Judges’ obligation to yield remained

unaffected. [ 8 ] I find that Ms. Judges was a driver who entered onto a highway from a private driveway and that she did not yield to traffic with the right of way. In particular, Ms. Judges did not yield to Mr. Parsons’ vehicle which was so close as to constitute an immediate hazard. [ 9 ] As a result, I find that the prosecution has established a prima facie case against Ms. Judges. This, however, does not end the matter. [ 10 ] Because Ms. Judges is charged with an offence of strict liability, it is open to her to advance the defence of due diligence. The question for me to determine is whether Ms.

Judges has demonstrated, on a balance of probabilities, that she took all reasonable precautions to avoid committing the offence. If Ms. Judges is successful in this regard, the onus of which lies on her, then I must acquit her. [ 11 ] Ms. Judges argues that she took all reasonable precautions to avoid interfering with the right of way of approaching vehicles on the highway as she entered onto it from the private driveway. Ms. Judges argues that her evidence was consistent in this regard and that she has met her onus. I disagree. [ 12 ] In direct-examination, Ms.

Judges testified that, prior to proceeding through the gap of stopped cars across the two westbound lanes, she observed the stopped drivers to her left waive her through. She then proceeded through the gap and approached the start of the centre lane. Ms. Judges testified that she looked to the right to make sure there were no cars coming from the west. She then looked to her left, saw no cars, looked again to her left, even looked to her left a third time before proceeding. She observed no vehicles, proceeded, and a collision resulted. Ms.

Judges was specific about the mechanics of her precautions in looking in both directions, even supplementing some of her oral evidence with hand gestures. [ 13 ] However, in cross-examination, Ms. Judges was inconsistent with her evidence about looking in each direction. She resiled from her earlier testimony, indicating that she couldn’t remember which way she looked first. [ 14 ] In cross-examination, Ms. Judges testified that she observed Mr. Parsons’ vehicle approaching 10 feet away from her at approximately 50km/h just prior to the collision. In fairness, these were merely estimates of distance and speed.

However, this evidence contradicts her evidence-in-chief where she claimed that she didn’t see any vehicles approaching prior to the collision. [ 15 ] Ms. Judges’ evidence is to be contrasted with an inconsistent statement she made to officer Miller shortly after the collision, the admissibility of which was conceded. In this statement, Ms. Judges indicated that as she proceeded to make her way out onto Bayly St., she looked once to the west (to her right) and then once to the left to make sure no cars were coming. Ms. Judges stated didn’t see any vehicles approaching.

This statement is inconsistent with her trial evidence in terms of both Ms. Judges’ observations and her actions while making her entry onto the highway. [ 16 ] Ms. Judges’ testimony is also to be viewed in light of the evidence of Mr. Parsons. He claimed that he observed Ms. Judges constantly looking westbound, or to her right, while she completed her turn. This appears to be supported by Ms. Judges’ own evidence that she believed there should not have been any cars in the centre lane and that, in fact, she was surprised a vehicle was there. Ms.

Judges’ belief suggests that she felt there was no need to look to her left while completing her turn and that she should focus on traffic approaching from her right. [ 17 ] Based on all of the evidence, I find that Ms. Judges has not met her onus in demonstrating that she acted with due diligence. I find Ms. Judges’ evidence hyperbolic and inconsistent in support of her defence. [ 18 ] In part, I make this finding based on the internal inconsistencies of Ms. Judges’ testimony regarding the mechanics of her actions and of her observations upon entering the highway.

I also rely on the inconsistencies between her evidence at trial and her statement provided to officer Miller after the accident regarding the same. Furthermore, Mr. Parsons’ evidence that Ms. Judges was constantly looking to her right while completing her turn accords with her own belief that no vehicles should have been in that centre lane as she attempted to enter an eastbound lane onto Bayly St. [ 19 ] For all of the above reasons, I am not persuaded that Ms. Judges has met her onus, on a balance of probabilities, in establishing that she took reasonable precautions in failing to yield to Mr.

Parsons’ vehicle while entering onto the highway from a private driveway. [ 20 ] As a result, in rejecting Ms. Judges’ due diligence defence, I find that the prosecution has proven the charge beyond a reasonable doubt. I find Ms. Judges guilty of the offence and a conviction will be registered. Released: March 22, 2019 Signed: Justice of the Peace Kevin J.A. Hunter