Brampton (City) v. Lam, 2015 ONCJ 415

Citation: Brampton (City) v. Lam , 2015 ONCJ 415 IN THE MATTER OF the Highway Traffic Act, R.S.O 1990, c. H.8 Between Corporation of City of Brampton prosecutor and Wai LAM defendant Ontario Court of Justice Brampton, Ontario Quon J. P. Reasons for Judgment Trial held: May 1, 2015. Judgment released on: July 27, 2015. Charge: s. 142(1) H.T.A. – “turn not in safety”

Counsel: A. Stevenson, municipal prosecutor K. Singh, legal representative for the defendant Cases Considered or Referred To: R. v. Bero (2000), (ON CA), 151 C.C.C. (3d) 545 (O.C.A.), per Osborne A.C.J.O., Doherty, and Charron JJ.A. R. v. Betts, [1998] O.J. No. 2227 (Ont. Ct. (Prov. Div.)), per Bassel J. R. v. Bradford (2001), (ON CA), 151 C.C.C. (3d) 363 (O.C.A.), per Finlayson, Weiler, and Abella JJ.A. R. v. Brennan Paving, (ON CA), [1998] O.J. No. 4855 (O.C.A.), per Austin, Moldaver, and Borins JJ.A. R. v. Carosella, (SCC), [1997] 1 S.C.R. 80 (S.C.C.). R. v. Dillman, [2008] O.J.

No. 1120, 68 M.V.R. (5th) 272, (O.C.J.), per Duncan J. R. v. Dixon (1998), (SCC), 122 C.C.C. (3d) 1 (S.C.C.). R. v. Dulude, (ON CA), [2004] O.J. No. 3576 (O.C.A.), per Weiler, Laskin, and Feldman JJ.A. R. v. Egger, (SCC), [1993] 2 S.C.R. 451 (S.C.C.). R. v. Hamid, [2008] O.J. No. 2059 (O.C.J.), per Quon J.P. R. v. Hanano, [2006] M.J. No. 315 (M.Q.B.). R. v. Harris (2012), 104 W.C.B. (2d) 480 (S.C.J.O.), per Ferguson J. R. v. Jackson, [2010] O.J. No. 4521 (O.C.J.), per Quon J.P. R. v. Johnson, [2007] O.J. No. 2228 (O.C.J.), per McMurtry C.J.O., O’Connor A.C.J.O, and Doherty J.A.

R. v. La, (SCC), [1997] 2 S.C.R. 680 (S.C.C.). R. v. Leung, 2008 ONCJ 110 , [2008] O.J. No. 1008 (O.C.J.), per Armstrong J. R. v. Lipovetsky, 2007 ONCJ 484 , [2007] O.J. No. 4135 (O.C.J.), per Kenkel J. R. v. O’Connor (1995), (SCC), 103 C.C.C. (3d) 1 (S.C.C.). R. v. Sault Ste. Marie (1978), (SCC), 40 C.C.C. (2d) 353 (S.C.C.). R. v. Scott, [2002] O.J. No. 1937 (O.C.A.), per Carthy, Doherty, and Laskin JJ.A. R. v. Sheng, 2010 ONCA 296 , [2010] O.J. No. 1666 (O.C.A.), per Laskin, Gillese, and Juriansz JJ.A. R. v. Singh, [2005] O.J. No. 1319 (S.C.J.O.), per Fragomeni J. R. v.

Stinchcombe (No. 1) (1991), (SCC), 68 C.C.C. (3d) 1 (S.C.C.). R. v. Taillefer; R. v. Duguay, 2003 SCC 70 , [2003] 3 S.C.R. 307 (S.C.C.). R. v. Trevisan, [2009] O.J. No. 606 (O.C.J.), per Dechert J.P. R. v. Wickstead (1996), (ON CA), 106 C.C.C. (3d) 385 (O.C.A.), per Morden A.C.J.O., Goodman, and Austin JJ.A. Statutes, Regulations and Rules Cited: Canadian Charter of Rights and Freedoms, 1982, ss. 7, 11(d), 24(1). Highway Traffic Act, R.S.O. 1990, c. H.8, 142(1).

Reference Material Cited: Libman, R., Libman on Regulatory Offences in Canada, (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., 2002) ((looseleaf) update11 – February 2008).

1. INTRODUCTION [ 1 ] It has been said that a picture is worth a thousand words. Then, by that same logic, a video recording would be worth much more, especially when it would ultimately show which of the parties involved in a motor vehicle accident is at fault or culpable for a traffic violation. And, it certainly would have helped in deciding the present case in which Wai Lam, the defendant, had been charged with the offence of making a “turn not safety”, contrary to s. 142(1) of the Highway Traffic Act , R.S.O. 1990, c.

H.8, after the truck and trailer unit that he had been operating had collided with another transport truck on January 28, 2015, at 9:38 a.m.

Before the collision had occurred, the two trucks had been beside each other and facing in the same westerly direction on Kimbel Street in Mississauga while both drivers had been attempting to make the same right turn into a private driveway. [ 2 ] In his defence to the charge, the defendant had testified that he had mistakenly believed that the other transport truck which had been involved in the collision with him, and which had been driven by Hardeep Ajimal, had been parked by the curb when the defendant had begun his right turn in front of the Ajimal truck that the defendant had just driven past.

Unfortunately, both trucks had been attempting to make the same right turn into the private driveway of a building located at 7347 Kimbel Street, where both drivers had been intending to pick up loads that morning from its loading docks.

Moreover, the defendant had not looked at the Ajimal truck again after he had driven passed it and contends that just before the collision had occurred he did not actually realize that the truck driven by Hardeep Ajimal had been slowly moving forward while it had been situated immediately next to the curb, with the same intention as himself of making a right turn into that private driveway. [ 3 ] And, it was by happenstance that the dashboard video camera in a transport truck, which had been parked in a yard across the street from where the collision had occurred, had actually captured and recorded the collision of the defendant’s truck and trailer unit with the transport truck driven by Hardeep Ajimal.

In addition, Cst. Coupland, the Peel Region police officer who had investigated the accident and laid the charge against the defendant, had been informed by the operator of that parked transport truck that the video of the collision could be downloaded from a particular website on the internet. Subsequently, Cst.

Coupland had been able to view the video of the collision, and based on what had been contained in the video, especially that the officer had observed that the Ajimal truck had been in motion before the defendant’s truck had actually commenced its right turn into the private driveway, the officer had determined that the defendant had committed the Highway Traffic Act offence of “turn not in safety”. In addition, a day after the accident, Cst.

Coupland had called the defendant to attend the police station in order to show the video of the collision to the defendant and to explain why the defendant was being charged with the turn not in safety offence, based on what had been revealed on the video. In addition, Cst. Coupland, provided the defendant a copy of that video evidence on January 29, 2015. [ 4 ] Unfortunately, in the trial held on May 1, 2015, of that Highway Traffic Act charge, the video evidence of that collision involving the defendant’s truck and trailer with the Ajimal transport truck was not available to be shown to the court.

Moreover, Cst. Coupland had also given the only copy of the video evidence of the collision to the defendant and before she could make another copy of the video of the collision, the video had been removed from the website where she had accessed and downloaded the copy of the video that had been given to the defendant. Furthermore, although a copy of that video of the collision had been provided to the defendant by Cst. Coupland, the defendant had indicated that he could not access, retrieve, or view the video in the format or on the medium that had been provided to him.

However, there is no evidence that defendant or the defendant’s legal representative had informed the prosecution or Cst.

Coupland that the defendant’s copy of the video had not been accessible or viewable before the trial. [ 5 ] Ergo, the circumstances of the apparently lost, destroyed, or missing video evidence in this trial raises several issues, which includes whether the loss or destruction of the video evidence of the collision, the prosecution not disclosing the video evidence to the defendant, or the failure of the investigating officer to preserve the video evidence, is so prejudicial to the defendant’s ability to make full answer and defence that it would impair his right to a fair trial guaranteed respectively under s. 7 and s. 11(

d) of the Charter . On the other hand, despite the unavailability of the video evidence for the trial, both the investigating officer and the defendant had been able to view at the police station the contents of the video which captured the defendant’s collision with the Ajimal transport truck, and in which they both had testified at the trial what each had observed respectively on the video when it had been viewed by them.

As such, what weight, if any, should the court give to the testimony provided by both the investigating police officer and the defendant on what they had personally observed on the video, considering that the trier of fact was not able to view the video of the collision.

And, before considering whether there had been a Charter violation and the need for an appropriate remedy, due to the prosecution’ failure to disclose, produce, or preserve the video evidence and the impact of the lost or destroyed video evidence of the collision on the ability of the defendant to make full answer and defence that would impair a fair trial, the merits of the charge will have to be considered first after an evidentiary foundation had been established, since a Charter violation is not immediately clear and patent for the circumstances of this case. [ 6 ] Consequently, based on the written reasons that follow, the prosecution had met its burden in proving that the defendant had

committed the actus reus of the offence beyond a reasonable doubt. However, the defendant had also met his burden in proving the mistake of fact defence on a balance of probabilities, that he had mistakenly believed the transport truck driven by Hardeep Ajimal had been parked by the curb before he had commenced to make the right turn into the private driveway. Moreover, Cst. Coupland’s and the defendant’s testimony on what they had respectively observed on the video is admissible evidence, since their testimony does not violate any evidence rule, principle, or policy.

As such, the defendant’s mistaken belief of fact will make his act of making the right turn an innocent act, and will thereby be acquitted of committing the offence set out in s. 142(1) of the Highway Traffic Act . [ 7 ] In addition, even though it would be unnecessary to consider whether the prosecution’s failure to disclose, produce, or preserve the video evidence of the collision had sufficiently prejudiced the defendant’s ability to make full answer and defence that would have impacted a fair trial, it would nonetheless be useful to address the issues related to the defendant’s right to disclosure and to make full answer and defence as it pertains to the potentially lost or destroyed video evidence.

It is also important to do so, in light of the proliferation of motorists who have equipped their motor vehicles with dashcam recording devices to record video of their surroundings while engaged in driving their vehicles, as well as for the potential that there will be ample video evidence of collisions and accidents that have occurred on highways that could be used in trials in the future, which would then trigger the obligation to disclose this video evidence to accused persons. [ 8 ] For the case at bar, the lost or destroyed evidence had been a video of the defendant’s collision, and as such, would have been material and relevant evidence, especially for assessing the credibility of both Hardeep Ajimal and the defendant, and to potentially assist the prosecution in proving the charge.

It also would have been particular useful to the defendant to support the defendant’s testimony in respect to the defendant’s mistake of fact defence. The failure of the prosecution in not disclosing, producing, or preserving the video evidence would generally breach the prosecution’s disclosure obligation, unless the prosecution can satisfactorily explained why the video evidence had not been disclosed, produced, or properly preserved.

For this question, the evidence in this proceeding would have supported a finding that even though the prosecution had not deliberately or intentionally prevented the disclosure of the video evidence to the defendant, the prosecution had not satisfactorily explained why the video evidence of the collision had not been preserved, especially on why Cst. Coupland did not make two copies of the video before giving the one and only copy of the video to the defendant.

This unsatisfactory explanation, therefore, would have led to finding that the prosecution had been unacceptably negligent in not preserving the video evidence, which would have been an infringement of the defendant’s right to disclosure. [ 9 ] Moreover, although the prosecution had not deliberately or intentionally prevented the video evidence from being disclosed to the defendant, since a copy of the video of the collision had been provided to the defendant by Cst.

Coupland on January 29, 2015, at the police station, the defendant indicates that he and his legal representative could not access or view the video of the collision in the format or medium that had been provided to the defendant. However, there is also no evidence or suggestion that the prosecution had been made aware of the non-accessibility or non-viewability of the video until the day of the trial. On the other hand, as for the explanation as to why the video of the collision was not properly preserved by Cst. Coupland as evidence of the charge, Cst.

Coupland had explained that she had been unable to download a second copy of the video before it had been removed from the website, but her explanation does not explain why she did not download and make a second copy of the video of the collision before she gave a copy of the video to the defendant on January 29, 2015. Therefore, although the evidence does not indicate that Cst.

Coupland deliberately or intentionally failed to disclose or preserve the video evidence, as she did in fact provide a copy of the video to the defendant, she had been in the circumstances unacceptably negligent in not preserving the video evidence of the collision by not making a second copy of the video before she gave the one and only copy of the video of the collision to the defendant. [ 10 ] And, once there is a finding of a disclosure breach by the prosecution, then the defendant has the burden to prove on a balance of probabilities that the prosecution’s failure to disclose, produce, or preserve the video evidence had actually prejudiced the defendant’s ability right to make full answer and defence that would impact on a fair trial.

In this case, the defendant could still make out the mistake of fact defence without the video evidence, so that the failure of the prosecution to disclose, produce, or preserve the video evidence would not have caused irreparable prejudice to the defendant’s ability to make full answer and defence.

Specifically, the defendant had observed what had been on the video and had been able to use those observations to cross-examine Hardeep Ajimal and to also testify as to what he had observed on the video of the collision to support his mistake of fact defence that the Ajimal truck had not commenced its motion until after the defendant’s truck and trailer had gone past the Ajimal truck by 10 to 15 feet. Therefore, there had been other ways that the defendant could make out full answer and defence without the potentially lost or destroyed video evidence. Accordingly, there has been no violation of s. 7 or s. 11(

d) of the Charter , and as such, consideration of an appropriate remedy under s. 24(1) had not been required. [ 11 ] On the other hand, to cure any prejudice that could have affected the defendant’s ability to make full answer and defence, the measure that would have been ordered to alleviate any prejudice from the prosecution’s failure to disclose, produce, or preserve the video evidence would have been for an order that the defendant return the copy of the video to the prosecution, so that the prosecution could determine if the video of the collision could be accessed or viewed on prosecution or police equipment, and if it were accessible and viewable, then another copy with instructions on how to access and view the video of the collision would have to be provided to the defendant, along with an adjournment so that the defendant could properly utilize the video evidence in his defence.

2. THE CHARGE [ 12 ] The defendant has been charged under a

Part I Certificate of Offence that was issued on January 29, 2015, for committing the following offence: Wai Lam , of [residential address removed for privacy], Markham, Ontario, on the day of January 28 2015, at 9:38 a.m. at 7347 Kimbel St., Mississauga, did commit the offence of “Turn Not In Safety” contrary to Highway Traffic Act , Sect. 142(1). 3. BACKGROUND [ 13 ] On January 28, 2015, Cst. Coupland of the Peel Region Police Service had been called at 9:38 a.m. to attend the accident scene at 7347 Kimbel Street in Mississauga between two transport trucks.

After she had arrived at the scene at 9:53 a.m., she had interviewed Wai Lam (“the defendant”) and Hardeep Ajimal, the drivers of the two transport trucks involved in the accident. [ 14 ] Kimbel Street, for the purposes of this proceeding, is an east-west road with one lane in each direction. A private driveway leads into a yard located at 7347 Kimbel Street, which contains an L-shaped building with loading docks where commercial trucks pick up loads.

However, the private driveway is not wide enough to accommodate two trucks being both able to make a right turn at the same time into the driveway while both trucks are travelling westbound on Kimbel Street beside each other. [ 15 ] Moreover, shortly before the collision between the defendant’s truck and trailer and Hardeep Ajimal’s straight transport truck, there had been three trucks facing westbound on Kimbel Street that had been situated east of the private driveway to 7347 Kimbel Street and near the north curb of Kimbel Street and the entrance to the private driveway.

The first two trucks nearest the private driveway were both straight-shaped transport trucks that had been from the same company. And, just before the collision had occurred, the defendant had been driving a transport truck with a trailer westbound on Kimbel Street toward the private driveway located at 7347 Kimbel Street to pick up a load there, when he had observed three trucks parked near the curb. Then, thinking that the three trucks were parked by the curb, the defendant drove down the middle of Kimbel Street toward the entrance to the private driveway of 7347 Kimbel Street.

As the defendant was about to make a right turn into the private driveway, he noticed and realized that the first truck nearest the driveway had moved forward and had also began making a right turn into the private driveway. The defendant then stopped and allowed the first truck to turn right into the private driveway. After that first truck had entered the private driveway, the defendant then proceeded to make his right turn into the private driveway.

However, before turning right, the defendant did not look at the second truck being driven by Hardeep Ajimal, which had been immediately behind the first truck that had just completed its right turn into the driveway. As the defendant’s truck and trailer was making the right turn into the private driveway, the defendant’s trailer collided with the front area of the second truck that was being driven by Hardeep Ajimal, which had been also moving forward to make the same right turn into the private driveway. [ 16 ] During Cst.

Coupland’s investigation of the collision, the defendant and Hardeep Ajimal had given Cst. Coupland contradictory accounts of what had occurred just before the collision. However, while Cst. Coupland was conducting her investigation of the collision between the defendant’s truck and the Ajimal truck that had occurred at 7347 Kimbel Street, Lurie Vaciu-Mailov, the driver of another transport truck that had been parked in a yard across the street from the spot where the collision had occurred, had approached Cst.

Coupland and had informed the officer that the dashcam video recorder in his truck had recorded the collision and that the video recording of that collision could be accessed and viewed on a particular internet website. [ 17 ] At that point, because of the conflicting accounts from the defendant and from Hardeep Ajimal of what had occurred, Cst. Coupland had not yet formed an opinion on whether any charges should be laid. However, once Cst.

Coupland had returned to her police station and had accessed and viewed the video of the collision, she had formed the opinion that the defendant had committed the Highway Traffic Act offence of “turn not in safety”. Cst. Coupland then called the defendant to attend at the station on January 29, 2015, so that she could show the defendant the video of the collision between the defendant’s truck and trailer and the straight transport truck driven by Ajimal. [ 18 ] On January 29 th , the defendant attended the 21 Division police station, where Cst. Coupland showed the video of the collision to

the defendant and explained to him, based on what the video had captured of the collision, why she had decided to charge the defendant with the Highway Traffic Act offence of turn not in safety. Specifically, she had explained and showed the defendant that the video had shown that the other truck involved in the collision had been in motion or moving forward before the defendant had begun his right turn into the private driveway, despite the defendant believing that the other truck had been parked at the curb at a location near the entrance to the private driveway. Cst. Coupland then served the defendant at the police station on January 29, 2015, with an offence notice for the

Part I offence of “turn not in safety”, contrary to s. 142(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8. In addition, Cst. Coupland had provided the defendant with a copy of the video of the collision that had been downloaded from the website at the police station on January 29th. [ 19 ] Unfortunately, as indicated by the defendant, the defendant’s copy of the video could not be accessed or viewed by the defendant on the format or medium provided to the defendant. Also, after Cst.

Coupland had shown the video of the collision to defendant at the police station, the video had been taken off the website where the video could be downloaded and Cst. Coupland had not made another copy of the video before it had been removed from the website, nor had she made an additional copy of the video of the collision before she had provided the defendant with a copy of the video. In other words, the copy of the video of the collision that had been given to the defendant at the police station had been the only copy that Cst.

Coupland had been able to download from the website before it had been removed from the website. Therefore, there had been no copy of the video of the collision that could be shown to the court during the trial of the defendant’s charge, although reference had been made about the existence of the video of the collision, testimony on what had been observed on the video from Cst Coupland and from the defendant, and that Cst.

Coupland had formed her opinion to charge the defendant based on what she had observed on the video. [ 20 ] In addition, the defendant during cross-examination had acknowledged viewing the video with Cst.

Coupland at the police station and that he did observe that the transport truck that had been driven by Hardeep Ajimal had been in motion when the collision between the defendant’s truck and trailer and Hardeep Ajimal’s truck had occurred , although the defendant reiterated that he had believed that the truck driven by Ajimal had been parked by the curb when the defendant began his right turn into the private driveway.

However, the defendant also testified that the video had shown the transport truck driven by Hardeep Ajimal had only begun moving forward after the defendant’s truck and trailer had already passed the Ajimal truck by 10 to 15 feet. 4.

SUMMARY OF TESTIMONY [ 21 ] Three witnesses testified in the trial:

(1) Hardeep Ajimal , the other driver involved in the collision,

(2) Cst. Coupland , the investigating officer, and (3) the defendant . The following is a

summary of the relevant testimony provided by the three witnesses who testified in the trial. (

a) Testimony Of Hardeep Ajimal (The Driver Of The Straight Transport Truck That Had Been In A Collision With The Defendant’s Truck and Trailer [ 22 ] Hardeep Ajimal testified that on January 28, 2015, he had been operating a 24-foot straight transport truck and gone to load his truck at the yard on Kimbel Road, which he believes, is in Mississauga. He said he had been there, as he is every day, to pick up a load of medicines for Shoppers and other businesses.

In addition, he said that at approximately 9:00 to 9:30 a.m. of that morning he had been in front of that yard where he had been making a right turn into the yard. [ 23 ] Furthermore, Ajimal described the Kimbel roadway as two lanes with one lane for each side, but cannot recall whether there were markings on the roadway. He also said he had been facing towards Torbram Road. In addition, he said there had been one truck in front of him that had turned right, while he had been second in line. However, he said that there had been no truck behind him, as there had only been two trucks in line.

He also said the truck in front of him had been from the same company and that it had also been the same type of truck as he had been driving. He further said that the truck in front of him had been in motion for 30 seconds in making the right turn and that he had been in motion as well. [ 24 ] Ajimal then described the collision between his straight transport truck with the defendant’s truck and trailer. He explained that he had just turned right and the defendant’s truck and trailer had come from back of him to his left, overtook his truck, and then quickly made a right turn.

He then said that the backside of the defendant’s trailer had come into contact with his truck He also said that they were both going in the same direction and that the defendant’s truck had been beside him in the one lane. However, he said that the defendant’s truck, which had passed him, did not work for the same company that he was working for.

[ 25 ] Furthermore, Ajimal said he had talked to the defendant after the collision and also identified and pointed to the defendant in the courtroom as the person he had spoken to as the other driver of the truck and trailer involved in the collision with his transport truck.

He further said the defendant had been aggressive in their conversation and had kept saying that it had been Ajimal’s fault and not the defendant’s fault for the collision. [ 26 ] In addition, Ajimal said the private driveway that they were both turning right into had been only one lane. [ 27 ] Ajimal also said that he had given a right signal to make the right turn. [ 28 ] Moreover, Ajimal had also admitted that he used to park there at that location, but had not been parked there that day. [ 29 ] In describing the actions of the truck and trailer that had passed him on his side, Ajimal had said that he had checked his mirrors and had observed that there had been no one there and that the defendant’s truck had been back of him and that Ajimal had been in the driveway when the defendant had come.

Ajimal also said that when he moved he had watched for traffic around him and had observed a truck in front of him, a truck parked on the other side of the roadway, and a truck behind him. He also said he had watched the curb, and reiterated that the defendant had come from back of him and made the right turn. In addition, Ajimal said the defendant’s truck and trailer had gone ahead of him and then hit his truck. (

b) Testimony Of Cst. Becky Coupland (The Officer Who Had Investigated The Accident And Who Laid The Charge Against The Defendant [ 30 ] Cst. Coupland testified that on Wednesday, January 28, 2015, she had been on uniform patrol from 6:00 a.m. to 6:00 p.m. She also said she had been dispatched at 9:38 a.m. to attend at 7347 Kimbel Street in Mississauga for a collision involving two transport trucks. She also said she had arrived at that location at 9:53 a.m. [ 31 ] When she had arrived at the location of the collision, Cst.

Coupland said she had observed that both of the transport trucks that were involved in the collision had been located off the roadway. She also said she had observed that the straight transport truck which had been driven by Hardeep Ajimal had been facing westbound on Kimbel Street and that there had been damage to the left front bumper and the front nose and headlight area of the Ajimal truck. As for the defendant’s transport truck, she said she had observed that it had been pulled off to the side. [ 32 ] In addition, Cst.

Coupland said the defendant had been operating a transport truck with a trailer, which she had observed as a purple-coloured 1999 Freightliner, although it had been listed as white in colour. She also said she had observed minor damage on the middle of the trailer, which consisted of a small scratch and dent. [ 33 ] Cst. Coupland also said Kimbel Street is an east and west road with one lane for each direction. [ 34 ] In addition, Cst. Coupland said that both drivers of the two transport trucks involved in the collision had given her conflicting stories.

However, during her investigation she said that a witness named Lurie Vaciu-Mailov had approached her and told her that he had a video of the incident taken from the dashcam on his transport truck and that it could be downloaded off the internet. She also said the Vaciu-Mailov transport truck and trailer had been parked in another yard that had been across the street from the collision and that Vaciu-Mailov had heard the crash, but did not actually witness the collision.

She later said that both she and the defendant, whom she had identified as Wai Lam, had viewed that video at the 21 Division police station on January 29, 2015. [ 35 ] In addition, Cst. Coupland said that on the date of the accident of January 28, 2015, she had not yet made a decision on whether to lay any charges as both drivers had given her conflicting evidence, so she said she had waited to make her determination until she has been able to view the video of the collision. [ 36 ] Furthermore, Cst.

Coupland said she had called the defendant to come to the 21 Division police station to view the video of the collision with her. She also said she had previewed the video before the defendant had arrived at the station and had decided to charge the defendant after viewing the video. She also said she had already written up the charge and the Provincial Offences Notice before the

defendant arrived at the station. [ 37 ] However, before she had viewed the video with the defendant on January 29 th , Cst. Coupland reiterated that she had the opportunity the day before to view the video of the collision. She then described what she had observed on the video, which included observing trucks parked westbound on Kimbel Street. She also said she had observed on the video the first straight transport truck moving and make a right turn into the private driveway and the second truck that had been behind the first truck moving behind the first truck.

Then she said she had observed on the video that the purple-coloured truck and trailer driven by the defendant had been driving westbound in the middle of the roadway and then make a right turn into the same driveway as the first straight truck had turned into. [ 38 ] Moreover, Cst. Coupland said she did not record in her notes whether she had cautioned the defendant or whether she had given the defendant a caution at the police station.

However, she said she had shown the defendant the video of the collision the defendant had been involved in and how she had made her determination to charge him from what had been recorded on the video. (

c) Testimony Of The Defendant [ 39 ] The defendant testified that on January 28th at 9:30 a.m. he had been driving a truck and trailer westbound on Kimbel Street. He also said he had observed two straight trucks parked by the curb. He then said he had passed the second truck and that when he had gotten to the first truck, the first truck, which was beside him, had started moving at the same time as his truck. He also said there had been one long truck to his left that had been moving as well. [ 40 ] In addition, the defendant said all of them had been turning into the same driveway.

He said he had intended to turn right into the driveway so he could look for a dock in the “L” shaped building in order to pick up a load. He also said the other drivers had been doing the same thing. Furthermore, he said that when he had gotten to the driveway there had been two trucks parked right at the edge of the driveway. Moreover, the defendant said he had been westbound when he had observed the driver of the first truck, who had been outside of the truck, then go inside the truck, start the truck, and then moves forward just as the defendant got right beside the first truck.

He then reiterated that he had let the first truck go in before he turned in. At that time, the defendant also said he did not check his mirror. [ 41 ] The defendant also clarified that the first truck had moved at the same time when he had started turning right into the driveway, but that the defendant had let the first truck go in and that he had then went in after the first truck. He said the first truck then got in. Furthermore, he said that when he passed the second truck it had been parked on the side. He also said that he could not see the driver of the second truck when he passed the second truck.

And, after the first truck had turned into the driveway, the defendant said that he then began to make the right turn, but at that time, he could not see the second truck. He then said he hit something. At that point, he said he had noticed the second truck. In addition, he said that the middle of his truck had hit the left-side fender of the second truck. [ 42 ] Moreover, the defendant had said that he did not see a driver in the second truck as he had only been paying attention to the first truck, and that he usually does not pay any attention to the trucks parked on the side unless they are moving.

He also said that in his mind the second truck had been parked. [ 43 ] Furthermore, under cross-examination the defendant acknowledged that he had viewed the video of the collision at the police station and that he did observe on the video that the second truck had been moving when the collision between the defendant’s truck and trailer and Hardeep Ajimal’s truck had occurred.

However, the defendant explained that at the time the defendant had not actually noticed the second truck moving, although he did view the second truck moving in the video. [ 44 ] In addition, the defendant said he did not know whether the second truck would be going into the driveway since the defendant had been pretty sure that it had been parked. He then said there had been three trucks that had been parked on the side and that there had been another truck that had been behind the second truck. He also said he had passed all three of those parked trucks.

Moreover, the defendant said that when he had passed the second truck, in his mind the second truck had been parked. However, the defendant said that on the video he had seen the second truck moving 10 to 15 feet after he had passed the second truck, but that he did not see the second truck after he had passed it. He also confirmed that he had hit that second truck and that there had only been room for one truck and not two trucks to make the right turn into the driveway.

5. RELEVANT LAW [ 45 ] The “turn not in safety” offence that is contained in s. 142(1) of the Highway Traffic Act , R.S.O. 1990, c.

H.8 , specifically provides that before the driver or operator of a motor vehicle makes a right turn into a private road or driveway that they are obligated to first see that the movement can be made in safety [ emphasis is mine below ]: 142(1) The driver or 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. 6.

ANALYSIS [ 46 ] The analysis that is required to decide this particular case will be derived from the jurisprudence that has been established for lost or destroyed evidence cases. In this particular case, there had been a video of the collision that may have been potentially lost or destroyed. This video of the collision between the defendant’s transport truck and trailer and Hardeep Ajimal’s straight transport truck on Kimbel Road in Mississauga on January 28, 2015, had been captured by a dashboard video camera in a transport truck that had been parked in a yard across the street from the collision.

During the investigation into the collision between the two transport trucks, the investigating officer, Cst. Coupland, had been made aware of the existence of that video of the collision and that it could be downloaded from a particular website on the internet. However, although the video of the collision had been viewed by Cst. Coupland and also by the defendant at the police station a day after the collision had occurred, and a copy of that video had been provided to the defendant by Cst.

Coupland before the defendant had left the police station, the video of the collision was not available to be shown to the court at trial, even though Cst. Coupland and the defendant had testified to what they had observed on the video. The unavailability of the video evidence for trial was due to Cst. Coupland not being able to make a second copy of the video of the collision before it had been removed from the website where the video could be accessed and viewed.

Moreover, the only copy of the video of the collision that had been downloaded from that website had been provided to the defendant on January 29, 2015, when the defendant had been at the police station and after he had been shown the video of the collision. However, the defendant indicated that he could not access or view the video of the collision in the format or on the medium that he had received from Cst. Coupland.

On the other hand, there is no evidence or suggestion that the defendant or the defendant’s legal representative had informed the prosecution about the problem with the video’s accessibility or viewability before the day of the trial. [ 47 ] Furthermore, Cst. Coupland, who had been tasked with investigating the collision between the two transport trucks, had testified that the defendant and the other driver involved in the collision, Hardeep Ajimal, had given conflicting statements of what had occurred to her when she had been conducting her investigation at the accident scene.

However, while at the scene of the collision, Cst. Coupland had been approached and informed by Lurie Vaciu-Mailov , the operator of a transport truck that had been parked in a yard across the street from where the collision had occurred, that there had been a video of the collision recorded by his dashboard camera and that it could be downloaded from a particular website on the internet. At that point, Coupland had said that she had not determined whether any charges would be laid against either of the two drivers that had been involved in the collision. [ 48 ] After Cst.

Coupland returned to her police station, she accessed the website that contained the video of the collision and had been able to view the video of the collision. At that juncture, Coupland formed the opinion that the defendant had committed the “turn not in safety” offence. Coupland then called the defendant to attend the police station. When the defendant appeared at the police station on the next day after the accident, which had been on January 29, 2015, Cst.

Coupland had shown the defendant the video of the collision and explained to the defendant her reasons for charging the defendant from what she could see on the video. At trial, Cst. Coupland had testified that she had formed the opinion that the defendant had committed the turn not in safety offence because the video had shown that the transport truck driven by Hardeep Ajimal had already been in motion before the defendant’s truck and trailer had actually began to make the right turn into the private driveway.

On the other hand, even though the defendant had acknowledged during his testimony at trial about having observed on the video of the collision that the Ajimal truck had been in motion when the collision had occurred, the defendant had testified that he had believed that the Ajimal transport truck had been parked by the curb when he had commenced his right turn into the private driveway and that the video of the collision had also shown that his truck and trailer had actually gone past the Ajimal truck by 10 to 15 feet before the Ajimal truck had actually commenced being in motion or moving forward. [ 49 ] Consequently, due to the video evidence of the collision being possibly lost or destroyed and its potential effect to the defendant’s ability to make full answer and defence that would impact on a fair trial, the following issues needed to be resolved in this trial:

(1) Has the prosecution proven that the defendant had committed the actus reus of the turn not in safety offence beyond a reasonable

doubt?

(2) How much weight, if any, should be placed on Cst. Coupland’s and on the defendant’s testimony on what they had individuallyobserved in the video of the collision when both had been able to view the video before it had been possibly lost or destroyed?

(3) If the prosecution has proven the actus reus of this strict liability offence beyond a reasonable doubt, then has the defendant madeout the mistake of fact defence, that the defendant had honestly and reasonably believed that the transport truck driven by HardeepAjimal had been parked by the curb before the defendant had commenced to make the right turn, so that the defendant would be notguilty of committing the turn not in safety offence?

(4) Has the prosecution satisfactorily explained why the video evidence was not disclosed, produced, or preserved?

(5) Has the prosecution or the investigating police officer deliberately or been unacceptably negligent in not disclosing, providing, orpreserving the video evidence of the collision?

(6) Have the actions of the prosecution or the police in not disclosing, providing, or preserving the video evidence sufficientlyprejudiced the ability of the defendant to make full answer and defence, so that the defendant would not receive a fair trial?

(7) Has the defendant met his burden in proving actual prejudice on a balance of probabilities that the actions of the prosecution or thepolice in not disclosing, providing, or preserving the video evidence have impaired the defendant’s ability to make full answer anddefence that would impact a fair trial?

(8) Have all remedies or measures less than a stay of proceedings been considered to cure any prejudice to the defendant’s ability tomake full answer and defence that would impact a fair trial?

(9) If the defendant’s ability to make full answer and defence that would impact a fair trial has been sufficiently prejudiced by the loss ordestruction of the video of the collision, which would necessitate finding that there had been a Charter violation, then what is theappropriate remedy under s. 24 (1) that should be granted? [50] However, before deciding whether the prosecution’s failure to disclose, provide, or preserve the video of the collision hadsignificantly prejudiced the defendant’s ability to make full answer and defence that would impact on a fair trial, the proper order andprocedure that should be utilized in deciding the relevant issues in respect to lost or destroyed evidence cases needs to be addressed first. (

A) Procedure for Assessing The Effect That The Loss Or Destruction Of Video Evidence Would Have On the Defendant’sAbility To Make Full Answer And Defence That Would Impact A Fair Trial [51] In R. v. Brennan Paving, (ON CA), [1998] O.J. No. 4855, at paras. 11 and 12, the Court of Appeal for Ontarioheld that, before deciding whether a stay of proceedings should be granted in respect to an accused’s right to a fair trial being irreparablyprejudiced, a proper evidential foundation is required.

Moreover, it had also been noted by the Court of Appeal that this issue should beraised at the outset of the trial to enable the trial judge to assess any adverse effect as the trial unfolds: … The stay application was brought at the outset of the trial proceedings, before any evidence was heard.

Brennan led no evidence onthe stay application to show that as a result of the testimony led at the inquest, including that of its own witness, that its right to a fairtrial had been irreparably prejudiced. … To the extent, if any, that prejudice is revealed as the evidence unfolds at trial, Brennan may renew the stay application if it sees fit.

[52] Also, in R. v. Johnson, [2007] O.J. No. 2228, at paras. 7 and 12, the Court of Appeal for Ontario held that the effect of adisclosure breach on trial fairness is generally ascertainable only after all the evidence has been heard.

However, the Court also held thata stay should only be granted prior to the conclusion of the trial where “it is clear that no other course of action will cure the prejudice”to the accused [emphasis is mine below]: In circumstances such as these, the courts have held that it is preferable to proceed with the trial and then determine the abuse motionwith the benefit of all the evidence. A stay should be granted prior to the conclusion of the trial only if “it is clear that no other courseof action will cure the prejudice” to the accused.

This is because the court will be in a better position at the end of the trial to determinewhether actual prejudice has occurred: R. v. La (1997), (SCC), 116 C.C.C. (3d) 97 at 109-110 (S.C.C.). … Moreover, there was no reason for the trial judge to order a stay of proceedings at the outset of the trial, rather than allowing it toproceed and assessing the issue of possible prejudice at its conclusion. Indeed, the cases point out that the remedy of a stay for an abuseof process should be exercised only rarely. It is clearly desirable that cases be decided on their merits, if possible. [53] Furthermore, in R. v.

La, (SCC), [1997] 2 S.C.R. 680 (S.C.C.), Sopinka J., in his majority judgment, held atpara. 27, that the appropriateness of a stay of proceedings for a Charter violation would depend upon the effect of the conduct amountingto an abuse of process or other prejudice on the fairness of the trial.

As for the timing of the disposition of the application for a stay ofproceedings, Sopinka J. reasoned that at the trial judge’s discretion, ruling on the application for a stay could be made immediately if theCharter violation is patent and clear and that no other course of action would cure the prejudice caused by the conduct giving rise to theabuse; otherwise, he held that the determination of whether to grant the application for a stay is often best assessed in the context of thetrial as it unfolds, after hearing some or all of the evidence.

This, he explained, would allow the trial judge the ability to assess thedegree of prejudice and to also determine whether measures to minimize the prejudice have borne fruit [emphasis is mine below]: The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudiceon the fairness of the trial. This is often best assessed in the context of the trial as it unfolds. Accordingly, the trial judge has a discretionas to whether to rule on the application for a stay immediately or after hearing some or all of the evidence.

Unless it is clear that noother course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable toreserve on the application. This will enable the judge to assess the degree of prejudice and as well to determine whether measures tominimize the prejudice have borne fruit. This is the procedure adopted by the Ontario Court of Appeal in the context of lost evidencecases. In R. v.

B. (D.J.) (1993), 16 C.R.R. (2d) 381, the court said at p. 382: The measurement of the extent of the prejudice in the circumstances of this case could not be done without hearing all the relevantevidence, the nature of which would make it clear whether the prejudice was real or minimal. Similarly, in R. v. Andrew (S.) (1992), 60 O.A.C. 324, the court found at p. 325 that unless the Charter violation "is patent and clear, thepreferable course for the court is to proceed with the trial and then assess the issue of the violation in the context of the evidence as itunfolded at trial". See also: R. v.

François (L.) (1993), (ON CA), 65 O.A.C. 306; R. v. Kenny (1991), (NL SC), 92 Nfld. & P.E.I.R. 318 (Nfld. S.C.T.D.). [54] And, in R. v.

Bero (2000), (ON CA), 151 C.C.C. (3d) 545 (O.C.A.), at para. 18, Doherty J.A. emphasizedthat a trial judge should reserve on motions for a stay of proceedings until after the evidence has been heard, in cases which are based onthe destruction of evidence and the prosecution's failure to preserve evidence, and where it is contended that there has been sufficientprejudice to the accused’s ability to make full answer and defence, except where the appropriateness of a stay is manifest at the outset ofproceedings [emphasis is mine below]: The trial judge should not have ruled on the motion at the outset of the trial.

This Court has repeatedly indicated that except where theappropriateness of a stay is manifest at the outset of proceedings, a trial judge should reserve on motions such as the motion brought inthis case until after the evidence has been heard. The trial judge can more effectively assess issues such as the degree of prejudicecaused to an accused by the destruction of evidence at the end of the trial: R. v. B.(D.J.) (1993), 16 C.R.R. (2d) 381 at 382 (Ont. C.A.);R. v. A.(S.) (1992), 60 O.A.C. 324 at 325 (C.A.). The approach favoured by this Court was approved in R. v.

La (1997), (SCC), 116 C.C.C. (3d) 97 at 107-108 (S.C.C.). …

[55] Moreover, in R. v. Scott, [2002] O.J. No. 1937, at para. 7, the Ontario Court of Appeal for Ontario, in considering an abuse ofprocess application in respect to lost evidence, held that although the trial judge had properly waited until the end of the trial to decidethe abuse of process application, the trial judge should have nonetheless first dealt with the merits before proceeding to the question ofwhether the proceedings should be stayed [emphasis is mine below]: … The trial judge properly waited until the end of the trial to decide the abuse of process application.

However, he ruled on thatapplication before addressing the merits of the case. He should have dealt with the merits first and then proceeded to the question ofwhether the proceedings should be stayed. There are at least two advantages to this approach. If the Crown had not proved the caseagainst the respondents they were entitled to an acquittal, and not just a stay of proceedings. Secondly, by deciding the merits of the caseand then the merits of the abuse of process application, the parties could have brought all appeals to this court at the same time and wecould have brought an end to this matter.

As it stands, there has been no determination on the merits and we must order a new trial. [56] And, in a recent case involving the Crown’s failure to preserve evidence, the Ontario Court of Appeal in R. v. Sheng, 2010ONCA 296 , [2010] O.J. No. 1666, at paras. 65 to 70, clearly set out the steps and procedure to utilize in deciding whether theCrown’s failure to preserve relevant evidence had breached its disclosure obligations, as well as reiterating that it is appropriate to waituntil the end of the case before determining that issue.

The Court also stated that a stay of proceedings is an appropriate remedy if theCrown has breached its disclosure obligations if a lesser remedy is not appropriate. Furthermore, the Court held that after consideringthe merits of the case, if the accused is to be acquitted, then that would end the question on whether there had been a breach of theCrown’s disclosure obligations.

However, if the accused is not entitled to an acquittal and the trial judge finds that there had been abreach, then the trial judge should then consider the breach’s effect on the fairness of the trial and whether the lost evidence had been soprejudicial to the defence that it would warrant a stay. And, if the trial judge should stay the proceedings, then it should not make anyfindings of guilt. On the other hand, if the lost evidence only warranted a lesser remedy, then the trial judge should give effect to thatlesser remedy before considering whether the accused is guilty.

And, if the trial judge ascertained that the lost evidence should befactored into the assessment of the credibility and reliability of the complainants’ testimony or the testimony of prosecution witnesses,then the trial judge should perform that assessment in deciding whether the accused is guilty [emphasis is mine below]: The trial judge did not err by waiting until the end of the trial to assess whether the prejudicial impact of the evidence justified a stay:see La at para. 27. The degree of prejudice ordinarily is best assessed after all the evidence is in.

Moreover, before deciding on the staythe trial judge properly addressed the merits. That was the proper approach because if, on the evidence led, the Crown had not provedthe case against the respondent, then he was entitled to an acquittal and not just a stay: see R. v. Scott. However, once the trial judge determined that the respondent was not entitled to an acquittal, he should then have considered whetherthe lost evidence compromised the fairness of the trial.

If he concluded that the lost evidence was so prejudicial to the accused’s defencethat it warranted a stay, he should have stayed the proceedings, and not made any findings of guilt. If he concluded that the lostevidence warranted a lesser remedy, he should have given effect to that remedy before considering whether the accused was guilty. If heconsidered that the lost evidence should be factored into the assessment of the credibility and reliability of the complainants’ testimony,he should have performed that assessment in deciding whether the accused was guilty.

The procedure the trial judge followed parallels the accepted procedure when entrapment is raised by the defence and, in fairness to thetrial judge, the procedure suggested in some of the cases dealing with lost evidence. An application for a stay because of lost evidenceand an application for a stay because of entrapment bear some similarities. But I see the two differently. When entrapment is claimed, the trial judge first determines guilt or innocence; if the trial judge finds the accused guilty then the trialjudge goes on to consider whether to stay the proceedings because of entrapment.

This two-stage process where guilt is determined firstis appropriate because a claim of entrapment has nothing to do with the fairness of the trial, or the culpability of the accused. It has todo with whether it was fair to even have a trial: see R. v. Imoro (2010), 2010 ONCA 122 , 251 C.C.C. (3d) 131 (Ont. C.A.). The two-stage process for entrapment is not appropriate when a stay is sought because evidence has been lost or destroyed. Lostevidence potentially compromises the fairness of the trial itself.

A stay because of lost evidence is granted where the missing evidence isso prejudicial that the accused cannot receive a fair trial. Thus, if the trial judge decides not to acquit, the trial judge should then ruleon the stay application. If we were to reinstate the guilty verdicts, we would be permitting the Crown to take advantage of the procedure adopted by the trialjudge. Doing so offends my sense of fairness. If the trial judge had followed the procedure I have outlined, he would have granted astay and made no findings of guilt.

Having allowed the Crown’s appeal and set aside the stay, we would simply have ordered a newtrial.

[57] Ergo, since it is not clear or patent that there has been a Charter infringement of the defendant’s right to make full answer anddefence that would impact on a fair trial, due to the prosecution’s failure to disclose, produce, or preserve the video of the collisionevidence, or clear that no other course of action would cure the prejudice caused by the prosecution’s conduct, which would justify animmediate stay of the proceedings, then it must be first decided whether the prosecution has proven beyond a reasonable doubt that thedefendant has committed the “turn not in safety” offence. (

B) Has The Prosecution Proven The Actus Reus Of The Offence Beyond A Reasonable Doubt? [58] The turn not in safety offence set out in s. 142(1) of the Highway Traffic Act, is a strict liability offence in which the prosecutiononly has to prove that the defendant had committed the actus reus of the offence beyond a reasonable doubt and is not required to proveany mental element or that the defendant had the intent to commit the offence: R. v. Jackson, [2010] O.J. No. 4521 (O.C.J.); R. v.Hamid, [2008] O.J. No. 2059 (O.C.J.); R. v. Trevisan, [2009] O.J. No. 606 (O.C.J.); and R. v. Dillman, [2008] O.J.

No. 1120, 68 M.V.R.(5th) 272, (O.C.J.). [59] Moreover, once the prosecution fulfills their burden in proving beyond a reasonable doubt that the defendant made the right turnbefore first seeing that the movement could be made in safety, negligence is presumed, unless the accused can prove on a balance ofprobabilities he had not been negligent, or that he took all reasonable care for the circumstances to avoid committing the prohibited act,or that he acted under a reasonable mistake of fact, if believed, would make his conduct innocent: R. v. Sault Ste.

Marie (1978), (SCC), 40 C.C.C. (2d) 353 (S.C.C.). [60] Accordingly, a two-stage inquiry is required for determining whether the defendant has committed the strict liability offence inquestion beyond a reasonable doubt. For the first stage of the inquiry, the prosecution is required to prove beyond a reasonable doubtthat the defendant has committed the prohibited act set out in s. 142(1) of making a right turn before first ensuring that the movementcould be made in safety.

If the prosecution fulfils its burden of proof, then in the second stage of the inquiry the defendant has the onusto prove on a balance of probabilities the defence of due diligence or that he had been neither negligent nor at fault in committing theprohibited act in order to be acquitted of the offence. [61] In their closing argument, the prosecution submits that although the defendant had said he had believed the truck driven byHardeep Ajimal had been parked, it had indeed not been parked, but in motion before the defendant had commenced to make his rightturn.

In addition, the defendant had testified that he did not look again at the Ajimal truck after the defendant had gone past the Ajimaltruck, and as a result of making that right turn into the private driveway a collision had occurred between the defendant’s truck andtrailer and the Ajimal truck, which had also being moving forward to make the same right turn. Therefore, the prosecution contends thatthe defendant had commenced his right turn into the private driveway before it had been safe to do so.

Moreover, the defendant hadacknowledged that he had observed on the video of the collision that the Ajimal truck had indeed been in motion when the collisionoccurred. [62] However, in response to the prosecution’s closing arguments, the defendant contends that Hardeep Ajimal had started histransport truck from a stopped position at the curb when it had not been safe to do so, and that the defendant had the right of way tomake the right turn into the private driveway over that of the Ajimal transport truck.

In addition, the defendant had mistakenly believedthat the transport truck driven by Hardeep Ajimal had been parked by the curb and had not actually realized that the Ajimal truck hadbeen in motion when the defendant commenced his right turn into the private driveway located at 7347 Kimbel Street.

On the otherhand, the defendant had testified that he had observed on the video of the collision that the Ajimal truck had not been in motion untilafter the defendant’s truck and trailer had gone past or ahead of the Ajimal truck by 10 to 15 feet. [63] Therefore, the defendant has raised the mistake of fact defence to obtain an acquittal of his charge, which is based on thedefendant’s mistaken belief that the transport truck being driven by Hardeep Ajimal had been parked by the curb and that he had notactually realized that the Ajimal truck had been in motion when he had commenced to make his right turn into the private driveway. [64] First of all, there is no dispute between the parties as to the date, time, and location of the collision in question, or that thedefendant had been the driver of the truck and trailer that had been making a right turn into the private driveway at 7347 Kimbel Street inMississauga when it had collided with the transport truck being driven by Hardeep Ajimal. [65] In addition, Hardeep Ajimal, the driver of the other transport truck involved in the collision with the defendant’s truck and trailer,had testified that that he had been in motion and that a truck, from the same company that he was working for, had been directly in front

of his truck, and that particular truck had been in motion for 30 seconds in making the right turn into the private driveway. He also said that he had just turned right and been in the driveway when the defendant’s truck and trailer had come from back of him to his left, overtook his truck, and then quickly made a right turn. He then said that the backside of the defendant’s trailer had come into contact with his truck. He also said that they were both going in the same direction and that the defendant’s truck had been beside him in the one lane.

However, he said that the defendant’s truck, which had passed him, did not work for the same company that he had worked for. [ 66 ] On the other hand, the defendant had testified that he had driven past two of the three trucks he had observed parked at the curb near the entrance to the private driveway, when he had observed the driver for the first truck that was parked nearest the entrance to the private driveway had been initially standing outside of the first truck, but then had observed that particular driver immediately enter the first truck, start that truck, and then observed that first truck begin to move forward to make a right turn into the same private driveway he had been intending to turn into.

As a result, the defendant said that he had to wait for that first truck that had been near the entrance to the private driveway to complete the right turn into the driveway before he could commence to turn into the same driveway.

However, at that time, the defendant said he that did not actually realize that the second truck, which was being driven by Hardeep Ajimal, and in which the defendant had believed had been parked by the curb, had also been in motion with the same intention as the defendant of making a right turn in the private driveway, when the defendant had commenced to make his right turn into the driveway. The defendant then said his trailer collided with the front part of that second truck.

In addition, the defendant said that he had not looked at that second truck again after he had passed it, as he had believed that it had been parked by the curb. [ 67 ] However, although Hardeep Ajimal had testified that he had signaled that his truck was making a right turn, there is no evidence or suggestion that Ajimal had honked his horn as a warning to the defendant that Ajimal had also been intending to make a right turn into the same private driveway and that Ajimal’s truck had been next in the queue to make the right turn.

Nor, did Ajimal testify to seeing the defendant’s truck and trailer stopped beside the first truck, waiting for the first truck to complete its turn. On the other hand, the defendant had testified that the video of the collision had shown that the defendant’s truck and trailer had gone past the Ajimal transport truck by 10 to 15 feet before the Ajimal truck had commenced its motion or movement forward, which would be evidence that supports the defendant’s mistaken belief that the second transport truck, which was being driven by Hardeep Ajimal, had been parked by the curb.

Moreover, there is also no evidence or suggestion that the defendant had observed a right turn signal being visible on the Ajimal transport truck.

(1) Were there two trucks or three trucks parked by the curb? [ 68 ] There had been conflicting testimony on whether there had been two trucks or three trucks parked by the curb near the entrance to the private driveway at 7347 Kimbel Street. Hardeep Ajimal had testified at the beginning of his testimony that there had been no truck behind him, as there had only been two trucks in line. However, later in his testimony Ajimal said that when he moved he had watched for traffic around him and had observed a truck in front of him, a truck parked on the other side of the roadway, and a truck behind him.

On the other hand, the defendant had testified that he had observed two “straight” trucks parked by the curb, but later testified there had been three trucks that had been parked on the side and that there had been another truck that had been behind the second truck, and that he had passed all three of those parked trucks. [ 69 ] In respect to Hardeep Ajimal’s testimony on the number of trucks that he had observed in front of him and behind him, it is not logically inconsistent.

He had emphasized that there had been no truck behind him and that there had only been two trucks in line, but then said that he had observed a truck behind him when he had been checking in his mirror without specifically identifying that particular truck as the defendant’s truck and trailer. As such, Ajimal could have been referring to observing a truck behind him that had been the defendant’s truck and trailer or another truck that was not the defendant’s truck and trailer. [ 70 ] And, in respect to the defendant’s testimony on the number of trucks parked by the curb, it is also not logically inconsistent.

The defendant had initially testified about observing two trucks parked by the curb that he had described as two “straight” trucks, but when following the sequence and logic of his testimony, he had been testifying about the two trucks that he had been most directly involved when the defendant was describing his right turn into the private driveway. Specifically, he had first described that he had to yield to the first “straight” truck that was turning into the private driveway and then had collided with the second “straight” truck that he had mistaken believed had been parked.

However, he did not describe the type of truck that the third truck in line had been, so that it could be reasonably inferred that he had recognized that the first two trucks in line had both been straight transport trucks when he had made reference to observing two “straight” trucks.

The defendant’s testimony, therefore, is not inconsistent that he had observed two straight transport trucks parked by the curb of three trucks he had observed parked at the curb. [ 71 ] However, based on the circumstances of where the damage had occurred on the defendant’s trailer, the position of that damage in respect to the length of the defendant’s tractor and trailer would contradict Hardeep Ajimal’s testimony that Ajimal’s truck had been in the driveway when the defendant’s truck and trailer had come from behind and passed Ajimal’s truck, and then quickly turned right and collided with Ajimal’s truck.

Therefore, if the Ajimal truck would have already been in the driveway and there had not been a third truck that had been behind the Ajimal truck then the damage to the defendant’s truck and trailer should have occurred closer to the front of the

defendant’s truck than to the middle of the defendant’s trailer. As such, it is more logical that there had been three trucks parked at the curb, so that the damage to the middle of the defendant trailer is consistent with the defendant’s testimony and with the evidence on the circumstances surrounding the collision occurring, and that there were likely three trucks that had been parked by the curb when the defendant had approached the private driveway.

(2) What weight, if any, should be placed on the testimony of Cst. Coupland and on the testimony of the defendant on what they had individually and respectively observed on the video of the collision? [ 72 ] Officer Coupland had testified that the video had revealed that the transport truck being driven by Hardeep Ajimal had already been in motion before the defendant’s truck and trailer had actually began its right turn into the private driveway, and that the Ajimal truck had also been in motion when the collision had occurred.

However, the defendant had also testified that when he had passed the Ajimal truck he had believed that it had been parked by the curb and that he had not actually realized that the Ajimal truck had been in motion when he had commenced to make his right turn into the private driveway.

In addition, under cross-examination the defendant had admitted to observing on the video of the collision that the Ajimal truck was in motion when the collision occurred, but that the video had also shown that the defendant’s truck and trailer had already gone past the Ajimal truck by 10 to 15 feet before the Ajimal truck had begun to actually be in motion or had begun to move forward. [ 73 ] Moreover, b oth Cst. Coupland’s and the defendant's testimony about what they had observed on the video do not invoke any hearsay issues.

They had only described what they had observed of the physical acts or movements of objects on the video of the collision and not of any person’s gestures, which would imply a communicative statement or message. As such, both their testimony can be considered as admissible evidence, and will carry and be considered for their appropriate weight.

(3) Has The Prosecution Made A Prime Facie Case That The Defendant Had Made The Right Turn When It Had Not Been Safe To Do So? [ 74 ] There is no dispute that there had been a collision between the defendant’s truck and trailer and the transport truck driven by Hardeep Ajimal, nor that the collision had occurred while the defendant’s truck and trailer had been making a right turn into the private driveway located at 7347 Kimbel Street.

In addition, the defendant had testified that he had not looked at the Ajimal truck again after the defendant had gone past the Ajimal truck and that he did not realize that the Ajimal truck had actually been in motion before the defendant had started to turn right into the private driveway, since the defendant had mistakenly believed that the Ajimal truck had been parked by the curb.

Moreover, the defendant said that he does not look at vehicles that are parked, unless they are moving. [ 75 ] Furthermore, the location of the damage to the middle of the trailer on the passenger side of the defendant’s trailer and to the front driver’s side of the Ajimal truck is consistent with the Ajimal truck being very close in distance to the defendant’s truck and being close to the entrance of the private driveway while the defendant’s truck and trailer was turning right into that private driveway.

And, since the defendant did not look at the Ajimal truck again using his passenger-side mirrors before commencing his right turn, is prime facie evidence that the defendant had begun to make the right turn before it had been safe to do so, and that the defendant had not checked to see that he could turn his truck to the right safely before he had commenced to make the right turn. [ 76 ] Ergo, based on the evidence, the prosecution has proven that the defendant has committed the actus reus of the offence set out in s. 142(1) beyond a reasonable doubt.

However, before finding that the defendant would be guilty of committing the offence, the defendant may still be entitled to an acquittal if the defendant can prove on a balance of probabilities that he had taken all reasonable care in the circumstances to avoid committing the offence, or that he had been acting under a mistaken set of facts, which if true, would make his act innocent. [ 77 ] Accordingly, the prosecution has met their burden in proving that the defendant committed the actus reus of the offence, since there had been a collision between the two transport trucks as a result of the defendant attempting to turn right into the private driveway, as well as the defendant having testified to not looking again at the Ajimal truck once he had passed it to see if the Ajimal truck was moving or to see that he could make the right turn into the private driveway safely, before he had commenced to make the right turn. (

C) Has The Defendant Proven The Defence Of Due Diligence On A Balance of Probabilities? [ 78 ] The first branch of the due diligence defence of taking all reasonable care for the circumstances to prevent or avoid the event

from occurring does not apply to the defendant, since the defendant had failed to look at the Ajimal transport truck again after the defendant had passed it to first see that before making the right turn, that it could be made in safety. [ 79 ] However, the second branch of the due diligence defence of acting under a mistaken belief of facts, which if true, would make the defendant’s act innocent, may apply to the defendant’s circumstances.

(1) Mistake Of Fact Defence [ 80 ] In the seminal case of R. v. Sault Ste.

Marie , 40 C.C.C. (2d) at p. 374 (S.C.C.), Dickson, J. explained that the mistake of fact defence would be available if the accused reasonably believed in a mistaken set of facts, which if true, would render the act or omission innocent: The defence will be available if the accused reasonably believed in a mistaken set of facts, which if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. [ 81 ] Moreover, in Libman on Regulatory Offences in Canada, (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., 2002) ((looseleaf) update 11 – February 2008), the author, Justice Libman, explained that unlike the application of the mistake of fact defence for a true criminal or mens rea offence, where the mistaken belief need only be genuine or honestly held, the mistaken belief required for strict liability offences in contrast must be both “an honest and reasonable mistake of fact” [ emphasis is mine below ]: In strict liability offences, it is open to the defendant to establish the defence of reasonable mistake of fact,1 but not in cases of absolute liability, as where the accused is found to be speeding on account of a faulty speedometer, or claims to have misread the speed limit sign.

A reasonable belief in a mistaken set of facts which, if true, would render the act or omission innocent is a defence to most environmental offences that are strict liability offences. Unlike a true criminal or mens rea offence, where the mistaken belief need only be genuine or honestly held, for strict liability offences the mistaken belief must be “an honest and reasonable mistake of fact ”. The defendant is required to take reasonable steps to make himself or herself aware of the true state of affairs .

As Berger notes, the defence is not available to a defendant who knew the true facts but failed to draw the correct conclusion respecting the risk of accident or error. [ 82 ] For this defence, t he defendant had testified that after passing two straight transport trucks of three trucks in line that he had observed located by the curb near the entrance to the private driveway, and in which he had believed that they had been parked, then had noticed that the first truck in line and closest to the entrance of the private driveway had also been attempting to turn right into the same private driveway where he had been intending to turn into.

He then said he had stopped his truck and trailer to allow that first truck to make the right turn and enter the private driveway before he would commence his turn.

However, when he did start his right turn into the private driveway, the middle of the passenger side of his trailer collided with the front of the second truck of the three trucks that he had believed had been parked by the curb. [ 83 ] Moreover, the defendant’s mistaken belief that the second truck of the three trucks, which had been driven by Hardeep Ajimal, had been parked by the curb before the defendant had actually commenced his right turn into the private driveway, would be the basis of a mistake of fact defence that is permitted for a strict liability offence.

In other words, if the defendant had been acting under an honest and reasonable mistake of fact which, if the facts had been as the defendant believed them to be, would have rendered his act of turning right before it had been safe to do so an innocent act, so that the defendant would be acquitted of the offence that he has been charged with. (

a) Was the defendant’s mistaken belief that the Ajimal transport truck had been parked by the curb before he commenced the right turn been both honest and reasonable?

[ 84 ] Based on the evidence and the logical and reasonable inferences from that evidence, the defendant’s mistaken belief that the Ajimal transport truck had been parked by the curb before the defendant had commenced his right turn is both subjectively and objectively plausible. [ 85 ] Even though Hardeep Ajimal had testifed that there had only been two trucks in line and that he had his right turn signal on as an indication of Ajimal’s intention to make a right turn into the private driveway into the yard of 7347 Kimbel Street, the evidence does not show that the defendant could have reasonably seen the right turn signal engaged on the Ajimal truck, especially if the view of the rear of the Ajimal truck had been blocked, as alluded to in the defendant’s testimony, by the third truck that would have been situated behind the Ajimal truck. [ 86 ] Moreover, the evidence does not clearly show that the Ajimal truck had been moving forward at a speed which could be easily discernable by other motorists coming towards the Ajimal truck from behind the Ajimal truck, or while they were driving beside the Ajimal truck, or after they ha

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