Regional Municipality of Durham — v. —, 2019 ONCJ 592

ONTARIO COURT OF JUSTICE CITATION: Durham (Regional Municipality) v. Siksay-Smith , 2019 ONCJ 592 DATE: 2019 07 25 COURT FILE No.: 5402973Z BETWEEN: Regional Municipality of Durham — AND — Catherine SIKSAY-SMITH Before Justice of the Peace Kevin J.A. Hunter Heard on July 22, 2019 Reasons for Judgment released on July 25, 2019 J. BATEMAN.............................................................................................. for the Prosecution A.

DUFFY........................................................................................................ for the Defendant JUSTICE OF THE PEACE HUNTER: [ 1 ] The Defendant, Catherine Siksay-Smith, is charged with careless driving stemming from a three-vehicle collision she was involved in on January 26, 2019. This collision took place on Stevenson Rd. S approximately one-half kilometer south of Gibb St., City of Oshawa, Regional Municipality of Durham. [ 2 ] Ms. Siksay-Smith pleaded not guilty and a trial occurred before me on July 22, 2019.

I heard from three witnesses: George Pithie and Philip Steward for the prosecution and Ms. Siksay-Smith for the defence. I heard submissions from the parties and reserved my decision until July 25, 2019. THE EVIDENCE George Pithie – other driver [ 3 ] On January 26, 2019, at approximately 11:30am, Mr. Pithie was driving in the curb lane northbound on Stevenson Rd. S approaching Gibb St., Oshawa, Durham Region. Roughly 500m south of Gibb St., there is a bridge which spans up and over a set of railway tracks. Travelling at approximately 60 km/h, Mr.

Pithie crested the top of the bridge and observed traffic ahead of him to be stopped for the red light at Gibb St. Traffic was backed up far enough to reach the decline on the north side of the bridge. Mr. Pithie had to stop his vehicle abruptly, about half way down the decline, to avoid a collision with the vehicle stopped in front of him. His vehicle came to rest approximately three feet behind this vehicle. [ 4 ] After being stopped for approximately three to four seconds, Mr.

Pithie testified that he instinctively looked in his rear-view mirror, observed a vehicle approaching from behind, and a rear-end collision ensued. Mr. Pithie identified the Defendant as the driver of this vehicle. [ 5 ] The force of the collision caused Mr. Pithie’s vehicle to lurch ahead and strike the vehicle in front of him, later determined to have been driven by David Haacke. Mr. Pithie had a conversation with the Defendant and Mr. Haacke before attending the collision reporting centre. He estimated the damage to the rear of his vehicle to be $4000-$5000. [ 6 ] Mr.

Pithie testified that it was a bright and sunny winter day and that the road was dry at the location of impact. Philip Steward – investigating officer

[ 7 ] Philip Steward is a constable with Durham Regional Police, who was working at the collision reporting centre on the date in question. He received self-reports from Mr. Pithie, Mr. Haacke, and the Defendant. [ 8 ] Officer Steward described the damage and repair estimates for each of the involved vehicles as follows: Ms. Siksay-Smith’s Dodge – front bumper and hood – $2600 Mr. Pithie’s Buick – trunk and rear hatch, front bumper – $900 Mr.

Haacke’s Audi – $800 (no damage location – it is reasonable to infer that the damage was to the rear end) [ 9 ] Officer Steward’s investigation resulted in the Defendant being charged with the matter before the court. Catherine Siksay-Smith – the Defendant [ 10 ] At the date and time in question, Ms. Siksay-Smith was also driving northbound in the curb lane on Stevenson Rd. S, approaching Gibb St. She agreed that it was a bright and sunny day and added that the temperature was below freezing. [ 11 ] As the Defendant crested the same bridge, she, too, observed the red light ahead. Ms.

Siksay-Smith testified that upon seeing the red light, she knew she would have to stop. The defendant testified that she came to this conclusion even before she observed the line of stopped traffic, which she did immediately thereafter. Ms. Siksay-Smith testified that she wasn’t going fast because, being familiar with that stretch of roadway, she knew there was a light ahead. Her testimony was that she was travelling at 30-40km/h in what she believed to be a 50 km/h zone. [ 12 ] The Defendant testified that when she was approximately fifteen feet from Mr.

Pithie’s stopped vehicle, she applied the brakes and “nothing happened.” Ms. Siksay-Smith said she put the brake pedal “to the floor,” could not stop, and struck Mr. Pithie’s vehicle from behind. [ 13 ] The location of the accident was marked in red by the Defendant on a Google Map photo showing a southern view of Stevenson Rd. S from the intersection at Gibb St. [1] The Defendant testified that the impact location was approximately 300m north of the crest of the hill. [ 14 ] Ms. Siksay-Smith attended the collision reporting centre to file a report.

The Defendant testified that her vehicle had to be towed and was written off by her insurance company. She claims it was damaged to an extent greater than the estimate provided by officer Steward. [ 15 ] Although Ms. Siksay-Smith accepts that she was responsible for the accident, she testified that she did everything she could to try and stop. Her vehicle was in good working order, had winter tires on, and was regularly maintained. In fact, the brakes were repaired a short time before the accident.

Even after the accident, the Defendant was able to drive her vehicle off the roadway and indicated that she had no issue with her brakes. [ 16 ] The defendant felt she had more than enough space to stop. She was aware that there was a red light ahead, and that everyone ahead of her was stopped. Ms. Siksay-Smith testified that she felt that the accident was more related to the weather conditions, rather than driver error. The Defendant testified that, although she had never experienced “black ice” before, she felt that this phenomenon was the reason for her inability to stop. [ 17 ] In cross-examination, Ms.

Siksay-Smith was candid that other areas of roadway she had traveled prior to the collision were dry. However, the Defendant felt that at the location of the collision there must have been some “water outlet there in that spot or something” since her brakes worked properly at other locations. She provided no actual evidence to support this feeling. [ 18 ] Further in cross-examination, when asked how many times she hit her brakes just before the collision, the Defendant testified that she “feathered it” for ten feet before putting the brake pedal to the floor when she was five feet away from impact.

FINDINGS OF FACT [ 19 ] Based on all of the evidence, I satisfied to make the following findings of fact which are not in dispute: [ 20 ] On a bright and sunny January 26, 2019, Mr. Pithie was driving northbound in the curb lane on Stevenson Rd. S, Oshawa, Durham Region. As he crested the top of an elevated bridge just south of Gibb St., he was traveling at approximately 60 km/h. At that time, Mr. Pithie observed a red light ahead and that stopped traffic was backed up in a line from the light.

He stopped abruptly, three feet behind the stopped vehicle in front of him, about half way down the descent from the bridge. This location is consistent with the Defendant’s red marking on defence exhibit #1. Although the Defendant testified that the impact location was approximately 300m down the decline from the crest of the bridge, she was candid about her inability to estimate distances accurately. I prefer her visual representation on the exhibit and its consistency with the evidence of Mr. Pithie.

Based on this evidence, I find that the impact location was approximately 80-100m north of the crest of the bridge. [ 21 ] While stopped at this location for three to four seconds, Mr. Pithie observed the Defendant’s vehicle approaching from behind in his rear-view mirror and a rear-end collision ensued. The force of the impact caused Mr. Pithie’s vehicle to strike a vehicle ahead of him, causing it $800 damage. The damage to the rear of Mr. Pithie’s vehicle was significant.

The damage to the front of the Defendant’s vehicle was even more so, causing it to be written off. [ 22 ] The Defendant’s vehicle was in good working condition at the time of the accident and that there was no mechanical brake failure. All parties attended the collision reporting centre and the resulting investigation concluded with the Defendant being charged. [ 23 ] The factual issues that are in dispute relate to the condition of the road at the accident location and the Defendant’s pre-collision

driving conduct. On those points, I make the following findings: [ 24 ] The Defendant claimed that although she has never experienced “black ice” before, she speculated that this condition led to her inability to stop. Ms. Siksay-Smith testified that there must be some source of water on the roadway at the accident location. I heard no actual evidence of ice or water on the road from any witness, including the Defendant. In fact, I heard evidence to the contrary. Mr. Pithie testified that the roads were dry. He was even able to stop abruptly from 60 km/h on a decline and did so without losing traction.

The Defendant, herself, testified that the roads were dry during her earlier travels on other roadways. On the totality of the evidence on this point, I find that the road at the accident location was dry. [ 25 ] Regarding the Defendant’s pre-collision conduct, I find her evidence of speed not to be credible. The amount of damage sustained by all three vehicles is not consistent with a collision initiated by a vehicle only traveling at 30-40 km/h. Furthermore, the initial impact launched Mr. Pithie’s vehicle forward, striking another vehicle three feet in front of him.

Common sense and experience points to a higher speed. Without some further evidence, I am unable to say how fast she was traveling but, based on the evidence of damage and the chain of collisions, in my view, the Defendant was traveling at a speed greater than 30-40 km/h just before the accident. [ 26 ] With respect to her braking, the Defendant was candid in her admission that she was unable to accurately estimate distances. However, Ms. Siksay-Smith’s evidence on the mechanics of her braking actions was internally inconsistent.

In direct-examination, she claimed to have applied the brake pedal to the floor when she was within fifteen feet of Mr. Pithie’s vehicle. In cross-examination, she gave a different account, claiming to have first feathered her brakes when she was within fifteen feet of Mr. Pithie’s vehicle, only to jam on her brakes when she was five feet away. [ 27 ] Based on my findings that the road was dry and having ruled out mechanical failure, and in light of my adverse findings about the Defendant’s credibility and consistency, I reject Ms. Siksay-Smith’s evidence that she hit her brakes and nothing happened.

In my view, the Defendant was either going too fast to stop or tried to stop too late, or both. THE LAW [ 28 ] The offence creating provision of s. 130 of the Highway Traffic Act reads: “Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway…” [ 29 ] In R. v.

Shergill , [2016] OJ No 1503 , the Ontario Court of Appeal set out the following principles with respect to careless driving: “….If, at the time of the alleged careless driving, the driver displayed a lack of due care and attention or reasonable consideration for other persons using the highway, then the offence is made out…What is required is an analysis of the conduct of the driver at the time the offence is alleged to have been committed measured against the expectation of the conduct of a reasonably prudent driver.” [2] “…the gravamen of the offence of careless driving is inadvertent negligence.

If the conduct of the Defendant falls below the standard expected of a reasonably prudent driver in the circumstances then it is negligent and deserving of punishment under Provincial careless driving provisions. If it does not fall below the standard expected of a reasonable person then it is not negligence and does not amount to a lack of due care and attention.” [3] ANALYSIS [ 30 ] Ms. Siksay-Smith was familiar with the stretch of roadway on Stevenson Rd. S south of Gibb St.

She knew that as she approached that intersection from the south, there was a bridge which rose up and over the railway tracks. [ 31 ] As the Defendant crested the top of the bridge, she observed the red light ahead. Ms. Siksay-Smith said she knew that she would have to stop, even before observing the traffic backed up from the light. At this point, the defendant was still some 80-100m away from the point of impact in dry conditions. [ 32 ] While the defendant cannot be held to the standard of perfection, she is required to meet the standard expected of a reasonably prudent driver in the circumstances.

In my view, a reasonably prudent driver, in the circumstances of this case, would have been able to stop in a safe manner, much like Mr. Pithie managed to do. Instead, the Defendant either was going too fast or tried to stop too late, or both, and she struck another vehicle. [ 33 ] I conclude that the Defendant’s driving fell below the expected standard and meets the threshold of inadvertent negligence. I also conclude that the Defendant drove without reasonable consideration for other persons using the highway. Accordingly, I find that the prosecution has established a prima facie case for careless driving.

This, however, does not end the matter. DUE DILIGENCE [ 34 ] Because Ms. Siksay-Smith 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 the Defendant has demonstrated, on a balance of probabilities, that she took all reasonable precautions to avoid committing the offence. If Ms. Siksay-Smith is successful in this regard, the onus of which lies on her, then I must acquit her.

[ 35 ] The Defendant argues that she took all reasonable precautions to avoid the offence. Given the findings of fact that I have made above, I disagree. [ 36 ] I have already rejected the evidence of the Defendant regarding her speed and attempts at breaking. I am left with no other evidence in support of due diligence. [ 37 ] For the above reasons, I am not persuaded that the Defendant has met her onus, on a balance of probabilities, in establishing that she took reasonable precautions to avoid committing the offence of careless driving.

VERDICT [ 38 ] Having found that the prosecution established a prima facie case and having rejected the due diligence defence, I find that the prosecution has proven the charge of careless driving beyond a reasonable doubt. I find Ms. Siksay-Smith guilty of the offence and a conviction will be registered. Released: July 25, 2019 Signed: Justice of the Peace Kevin J.A. Hunter