Brampton (City) v. Papzyan, 2016 ONCJ 521

CITATION: Brampton (City) v. Papzyan , 2016 ONCJ 521 IN THE MATTER OF the Highway Traffic Act, R.S.O. 1990, c. H.8 Between The Corporation of the City of Brampton prosecutor and Shant Papzyan defendant Ontario Court of Justice Brampton, Ontario Quon J. P. Reasons for Judgment Charge: s. 130 H.T.A. – “careless driving” Trial held: March 18 and April 8, 2016.

Judgment rendered: August 25, 2016. Counsel: K. Wiedekowsky, municipal prosecutor C. Shapiro, legal representative for the defendant Cases Considered or Referred To: Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354, [1951] B.C.J. No. 152 (B.C.C.A.). Novak Estate (Re), [2008] N.S.J. No. 426 (N.S.S.C.), per Warner J. Phillips et al. v. Ford Motor Co. of Canada Ltd. et al., (ON CA), [1971] 2 O.R. 637 (O.C.A.), per Mackay, Schroeder,Kelly, Evans and Brooke, JJ.A. R. v. A.F., 2010 ONSC 5824 , [2010] O.J. No. 4564 (S.C.J.O), per Hill J. R. v. B. (R.W.) (1993), 40 W.A.C. 1 (B.C.C.C.). R. v.

Beauchamp, (ON CA), [1953] 4 D.L.R. 340, 16 C.R. 270, 106 C.C.C. 6, O.R. 422 (O.C.A.), per Pickup C.J.O., J.K.Mackay and F.G. Mackay JJ.A. R. v. Comer, [2006] N.S.J. No. 291 (N.S.S.C.). R. v. Cianchino, [2010] O.J. No. 3162 (O.C.J.), per Quon J.P. R. v. Defaria, 2008 ONCJ 687 , [2008] O.J. No. 5427 (O.C.J.), per Duncan J. R. v. Dillman, [2008] O.J. No. 1120, 68 M.V.R. (5th) 272 (O.C.J.), per Duncan J. R. v. Dougan, [2008] O.J. No. 5292 (O.C.J.), per Brown J. R. v. Globocki, [1991] O.J. No. 214 (Ont. Ct. (Prov. Div.)), per MacDonnell J.

R. v. Hubbs, 2014 ONCJ 32 , [2014] O.J. No. 381 (O.C.J.), per Quon J.P. R. v. Jackson, 2010 ONCJ 487 (O.C.J.), per Quon J.P. R. v. Jaquot, [2010] N.S.J. No. 108 (N.S.P.C.), per Tax J. R. v. Kinch, [2004] O.J. No. 486 (S.C.J.O.), per Durno J. R. v. McIver, (SCC), [1965] O.J. No. 998 (O.C.A.), per Porter, C.J.O., Roach, Gibson, Mackay and Kelly, JJ.A. R. v. Nabors, [2010] O.J. No. 6292 (O.C.J.), per Tetley J. R. v. Pyszko, [1998] O.J. No. 1218 (Ont. Ct. (Prov. Div.)), per Fontana J. R. v. Sault Ste. Marie (1978), (SCC), 40 C.C.C. (2d) 353 (S.C.C.). R. v. Skorput (1992), (ON CJ), 72 C.C.C. (3d) 294 (Ont. Ct. (Prov.

Div.)), per MacDonnell J. R. v. Shergill, [2016] O.J. No. 1503 (O.C.J.), per Epstein J. R. v. Stewart, (ON CA), [1994] O.J. No. 811 (O.C.A.), per Brooke, Finlayson, and Austin JJ.A. R. v. W. (D.), (SCC), [1994] 3 S.C.R. 521, S.C.J. No. 91 (S.C.C.). R. v. White, (SCC), [1947] S.C.J. No. 10 (S.C.C.). R. v. Wilson, (ON CA), [1971] 1 O.R. 349, 1 C.C.C. (2d) 466 (O.C.A.), per Gale, C.J.O., MacKay and Jessup, JJ.A. Statutes, Regulations, Bylaws, and Rules Cited: City of Brampton By-Law No. 93-93, Sched. X (Rate Of Speed). Highway Traffic Act, R.S.O. 1990, c. H.8, s. 130 and 144(15). Reference Material Cited:

Archibald, T., Jull, K., and Roach, K. Regulatory And Corporate Liability: From Due Diligence To Risk Management (Aurora, Ontario:Canada Law Book Inc., 2007). Paciocco, D.M. and L. Stuesser, L., The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011). Exhibits entered: Exhibit "1" - copy of two photographs taken by the defendant on December 12, 2015, at approximately 11:30 a.m.

In the topphotograph, which had been taken from the passenger side of both vehicles involved in the collision, the position of the defendant’sToyota Corolla motor vehicle is to the rear of the grey KIA Sorrento SUV motor vehicle after the collision. The rear half of the KIASorrento SUV motor vehicle is situated over the pedestrian crosswalk for the eastbound lanes of Sandalwood Parkway East at theintersection of Sunforest Drive and Sandalwood Parkway East in the City of Brampton..

The Toyota Corolla shows a significantlybuckled hood and damage to the front of the vehicle and has more damage than which is visible on the KIA Sorrento SUV motorvehicle. For the bottom photograph, which is taken from the driver’s side of both vehicles involved in the collision, the rear tires of theKIA Sorrento SUV motor vehicle is shown to be stopped over the pedestrian crosswalk that is located just east of the west boundary lineof the pedestrian crosswalk. (1 page) 1. INTRODUCTION [1] The offence of careless driving in Ontario covers a broad spectrum of motorists’ driving actions or behavior.

It could occur whena motor vehicle is being driven at a high rate of speed or a slow speed. It could happen when the driving is being done in bad weather orin good weather. It could take place on icy roads or on dry roads. It could transpire on busy roads or even when there are no other carsaround.

It could also result when a motorist does not adjust their driving for the particular traffic, weather, lighting, or road conditions. [2] Besides those situations, careless driving could also be characterized in some cases where there has been aggressive driving,illegal lane changes or the failure to signal turns or lane changes, or when a motorist makes a U-turn in the middle of the intersection andstrikes another vehicle, or in the situation where the motorist falls asleep at the wheel and hits a parked vehicle, or when a motorist isusing and holding a cell phone to their ear and drives through a stop sign. [3] In Ontario, the elements for the offence of “careless driving” are set out in s. 130 of the Highway Traffic Act, R.S.O. 1990, c.

H.8(“HTA”). It provides that a motorist is guilty of careless driving if they either drive a vehicle on a highway without due care andattention or without reasonable consideration for other persons using the highway.

Furthermore, s. 130 sets out the type and range ofpenalties that could be imposed on an accused motorist if they were to be convicted of committing the offence of “careless driving”,which includes a fine between $400 and $2,000 or a term of imprisonment of not more than six months, or both a fine and imprisonment,or the suspension of their driver’s licence for a period of not more than two years [emphasis is mine below]: 130.

Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care andattention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not lessthan $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or herlicence or permit may be suspended for a period of not more than two years. [4] Therefore, in order to find that a motorist is guilty of careless driving under the HTA, the prosecution must prove beyond areasonable doubt that the motorist had been driving either without due care and attention or without reasonable consideration for othersusing the road.

In addition, the prosecution must prove the accused motorist’s driving is a departure from the standard of care that anordinary driver would have used or given in the same circumstances: R. v. Beauchamp, (ON CA), [1953] 4 D.L.R. 340

(O.C.A.). Furthermore, the offence of careless driving is a strict liability offence under the R. v. Sault Ste. Marie categorization ofoffences: R. v. Skorput (1992), (ON CJ), 72 C.C.C. (3d) 294 (Ont. Ct. (Prov. Div.)).

As such, the prosecution onlyneeds to prove the motorist has committed the actus reus of the offence beyond a reasonable doubt and does not have to prove any mensrea element; while the motorist is required to prove that they exercised due diligence on a balance of probabilities to avoid conviction ifthe prosecution has fulfilled their legal burden in establishing beyond a reasonable doubt that the defendant has committed the actus reusof the offence. [5] In short, careless driving is a measure of negligent driving where the specific driving action falls below what a reasonably prudentand cautious motorist’s driving would have been in the same circumstances and where the accused motorist has not taken all reasonablecare or steps in the circumstances to avoid the particular prohibited event. [6] In the present case, Shant Papzyan (“the defendant”) has been charged with careless driving after his Toyota Corolla motor vehiclehad collided into the rear bumper of a KIA Sorrento SUV motor vehicle that had stopped for a traffic light at the intersection atSandalwood Parkway East and Sunforest Drive in the City of Brampton.

The collision between the two vehicles had occurred at 10:54a.m. on December 12, 2015, in the eastbound curb lane of Sandalwood Parkway East, on the westside of the intersection. MichelleSimon had been the driver of the KIA Sorrento vehicle that had been rear-ended by the defendant’s vehicle. She testified that the trafficlight she was approaching had changed from green to yellow so she had applied her brakes to slow her vehicle and then had graduallycome to a stop before the stop line.

Simon then said she heard a screeching noise behind her and then felt her car being hit from behindand being pushed into the intersection. She also said that the defendant had asked her immediately after the collision why she hadstopped, to which Simon had replied that she had stopped for the yellow light.

After which Simon said the defendant had uttered to her,“You hear me skid so why you not go”. [7] Furthermore, the prosecution contends that because Michelle Simon’s KIA Sorrento vehicle had not stopped suddenly, but hadgradually slowed and stopped at the intersection for a yellow traffic light, then the defendant could not been driving with due care andattention since the defendant had not slowed or stopped his vehicle for the yellow traffic light, but had to slam on his brakes at the “lastsecond” and then skidded into the rear of the Simon vehicle that had properly and gradually come to a stop at the intersection.

Inaddition, an independent witness that had been driving immediately behind the two vehicles involved in the collision corroboratedMichelle Simon’s testimony that Simon had gradually slowed and stopped her vehicle for a yellow light just before the defendant’svehicle had collided into the Simon vehicle. [8] However, the defendant contends that the Simon vehicle had entered the intersection on a green light and that the traffic light hadchanged to yellow when half of the Simon vehicle had been over the pedestrian crosswalk, which is just east of the stop line foreastbound traffic, and had then unexpectedly and abruptly stopped on the pedestrian crosswalk, which had caused the defendant to slamon his brakes in an effort to stop his vehicle.

And, because of this supposedly unexpected and sudden stop made by the Simon vehicle,the defendant said he had been unable to stop in time on the wet and slippery road and skidded into the rear of the Simon vehicle, eventhough the defendant said his vehicle had been moving at only 42 to 44 k.p.h. before he had to slam on his brakes, which is below thespeed limit of 60 k.p.h. for that part of Sandalwood Parkway East. [9] Furthermore, after an investigation was conducted by Cst.

George of the Peel Regional Police into the collision between the KIASorrento and Toyota Corolla motor vehicles at the intersection of Sandalwood Parkway East and Sunforest Drive, Cst. George issued aPart I Certificate of Offence and served a Notice of Offence on the defendant on December 12, 2015, for the offence of careless driving,contrary to s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”), with a set fine of $400. [10] The trial of this careless driving charge had then been held over two days: March 18, 2016 and April 8, 2016. In the trial, fourwitnesses had testified.

Three had testified for the Crown, while the defendant had testified in his own defence. Then, after finalsubmissions, judgment was reserved and adjourned until August 25, 2016, for the judgment to be given. These, therefore, are the writtenreasons for judgment: 2. FACTUAL BACKGROUND [11] On December 12, 2015, at approximately 10:54 a.m., the defendant’s Toyota Corolla motor vehicle had collided into the rear of adark-grey KIA Sorrento SUV vehicle driven by Michelle Simon when Simon said she had slowed her vehicle from a speed of 50 to 60k.p.h. and gradually stopped her vehicle for a yellow or amber light.

Both vehicles had been driving eastbound in the curb lane of thetwo eastbound lanes of Sandalwood Parkway East on the westside of the intersection of Sandalwood Parkway East and Sunforest Drivein the City of Brampton.

[ 12 ] The intersection of Sandalwood Parkway East and Sunforest Drive is controlled by automatic traffic lights. [ 13 ] At the time of the collision, the eastbound lanes of Sandalwood Parkway East at Sunforest Drive had been wet from an earlier rainfall. [ 14 ] Sandalwood Parkway East is for the purposes of the trial an east-west road that has two lanes westbound and two lanes eastbound.

For the north-south roads at the intersection, Braidwood Road runs north of Sandalwood Parkway East while Sunforest Drive runs south from Sandalwood Parkway East. [ 15 ] As shown in the photographs entered as Exhibit #1, both the Simon vehicle and the defendant’s vehicle had come to stop over a pedestrian crosswalk after the collision, still in contact with each other. The pedestrian crosswalk is located just east of the white stop line for eastbound traffic on Sandalwood Parkway East on the westside of Sunforest Drive.

The pedestrian crosswalk is painted on the road surface and is comprised of white bars. [ 16 ] In addition, the traffic light had been operating properly at the time of the collision and consists of a cycle where the sequence of the traffic light for eastbound traffic on Sandalwood Parkway East is a green phase followed by a yellow phase of six to seven seconds and then followed by a red phase. [ 17 ] Moreover, Cst.

George, who had investigated the collision between the defendant’s vehicle and the Simon vehicle, said he had observed the traffic lights functioning for more than three cycles and said they had been operating properly. He also said the yellow light phase had been for a duration of six or seven seconds, while Michelle Simon had said the yellow light had been for four seconds. Because Cst.

George has investigated motor vehicle accidents before and had actually observed the traffic lights cycle for more than three times, then his testimony that the yellow or amber light had a duration of six to seven seconds is preferred to Simon’s testimony that the yellow light phase had been for four seconds. [ 18 ] More importantly, in refutation of the testimony of Michelle Simon and the testimony of Kingsley Henry, who is an independent witness of the collision, the defendant claims that the Simon vehicle had entered the intersection on a green light and that when half of the Simon vehicle had been on the pedestrian crosswalk located east of the stop line, the traffic light had changed from green to yellow, at which point the defendant insists the Simon vehicle had abruptly stopped so that the rear half of the Simon vehicle had come to rest on the pedestrian crosswalk.

This particular contention would mean that the Simon vehicle had been able to come to a complete stop on the wet road in a distance of only half of a car length and from a speed of 50 to 60 k.p.h. And, because the Simon vehicle had abruptly stopped in front of the defendant’s vehicle, which he contends had only been travelling at only 42 to 44 k.p.h. at a distance of five car lengths behind the Simon vehicle, the defendant said he had to slam on his brakes when he saw the red brake lights on the Simon vehicle go on.

He then said that after slamming on his brakes he had tried to move his vehicle as far as he could to his right and that his tires may have rubbed the curb, and that he had skidded approximately 11 meters for four to five seconds before his vehicle had collided into the rear of the Simon vehicle. [ 19 ] In addition, the defendant said that his vehicle did not push the Simon vehicle at all forward when his vehicle had collided into the rear of the Simon vehicle. [ 20 ] Furthermore, the defendant said that before the collision had occurred he had been driving his wife to work and because of the rain and the wet and slippery roads he had been driving in the curb lane at a speed of 42 to 44 k.p.h., which he said is below the speed limit of 60 k.p.h. for that part of eastbound Sandalwood Parkway East.

He also said he knew that he had been going at that slower speed because he had looked at his speedometer 15 seconds earlier. [ 21 ] Also, Michelle Simon said the defendant had asked her immediately after the collision why she had stopped in which Simon said she had stopped for the yellow light and to which the defendant then had uttered, “You heard me skid so why you not go?” However, in explaining what he had meant by this comment at trial, the defendant’s recollection of that conversation had been different from that of Michelle Simon’s recollection of what the defendant had uttered to her.

The defendant had testified that because the Simon vehicle had stopped at the wrong place and at the wrong time, he said he had actually asked Michelle Simon why did she stop for the yellow light after she had already gone past the pedestrian crossing. [ 22 ] In addition, Michelle Simon’s testimony, for the most part, had been corroborated by an independent witness who had been

driving immediately behind the defendant’s vehicle in the same eastbound curb lane of Sandalwood Parkway East as both the Simon vehicle and the defendant’s vehicle had been driving in. The independent witness, Kinsley Henry, had testified that he had been driving immediately behind the defendant’s vehicle at a distance of about five car lengths and had seen everything happen. Henry had also said that the Simon vehicle had slowed and gradually stopped for a yellow light, but that it did not come to a full stop until the traffic light had changed from yellow to red.

In addition, Henry said that the Simon vehicle had not made an abrupt stop and that it been stopped for about half of a second before the defendant’s vehicle collided into the Simon vehicle. Henry also said that the defendant’s vehicle did not appear to be able to stop in time and that the defendant’s vehicle had made an abruptly stop at the “last second” before it collided into the Simon vehicle and pushed the Simon vehicle about half of a car length into the intersection. Henry then said he called the police at approximately 10:55 a.m. to report the accident. [ 23 ] Furthermore, Cst.

George, who was the police officer who had investigated the collision, said he had received a radio call at 10:55 a.m. to attend a motor vehicle collision and then arrived at the Sandalwood and Sunforest intersection at 11:05 a.m., which is about 11 minutes after the collision had occurred. When he arrived, he said he had observed two damaged vehicles that were stopped in the curb lane of Sandalwood Parkway East in the City of Brampton. He also said the front part of the Toyota Corolla vehicle had been significantly damaged while the KIA Sorrento SUV vehicle had only showed minor damage to its rear end.

After having spoken with the witnesses and after having observed the position of the two vehicles involved in the collision, Cst. George then decided to charge the defendant with the offence of careless driving. (

A) SUMMARY OF TESTIMONY [ 24 ] Four witnesses had testified in the trial. The following is a

summary of their testimony:

(1) Michelle Simon (the driver of the vehicle struck from behind by the defendant’s vehicle) [ 25 ] Michelle Simon testified she had been involved in an accident while she was driving eastbound on Sandalwood Parkway East at about 10:40 or 10:50 a.m. as she approached the intersection at Sunforest Drive. She further said that Sunforest Drive is a north-south road. In addition, she said traffic lights controlled that intersection.

Simon also said that her son had been sitting in the back seat of her car, which is a dark-grey KIA Sorrento SUV motor vehicle. [ 26 ] Furthermore, Simon said traffic had been flowing and that there had been other vehicles on the road also travelling in the east- west direction. However, she does not recall if there were vehicles travelling north and south at that intersection. [ 27 ] As she approached the intersection, Simon said her traffic light had turned yellow and she came to a stop. She also said she had made a good stop and did not slam on her brakes, nor did her vehicle skid or slide when she had braked.

In addition, she said the yellow or amber light was for four seconds and that she had clearly seen it. [ 28 ] In addition, Simon said that she had been approximately four to five car lengths from the intersection and that she had been travelling between 50 to 60 k.p.h. in a posted 60 k.p.h. speed limit area when the traffic light went from green to yellow.

She also estimated that when the light changed to yellow she had been about 40 feet from the intersection based on the average car being about eight to 10 feet in length. [ 29 ] Simon also said there had been a white pick-up truck in the left lane beside her, who she said had stepped on the gas and had gone through the intersection on the yellow or amber light.

In addition, she said that she had heard the sound of the pick-up truck speed up. [ 30 ] Furthermore, as she came to a stop, Simon said she heard skidding from her rear and then was hit and then her vehicle had been pushed a couple feet into intersection over the white bars. She also said her vehicle had been struck on her rear bumper. [ 31 ] Moreover, Simon said that it had rained earlier and the road had been wet, but she had no difficulty stopping. She also opined that at a higher speed the road could have been slippery.

[ 32 ] After the collision, Simon said the driver who had hit her from behind had asked her if she was okay and had also checked out the rear of her car.

She also said that the other vehicle involved in the collision with her vehicle was a light beige or tan coloured Toyota motor vehicle, and that it had gone under her rear bumper and that from the damage visible on that Toyota motor vehicle, Simon said she did not think it was drivable nor able to pull over to the side of the road. [ 33 ] Simon then identified the defendant seated in the courtroom as the driver who had approached her and asked her if she was O.K. [ 34 ] In addition, Simon said that the defendant had also asked her why she had stopped, to which Simon said she had replied that she had stopped for the yellow light.

Then, Simon said the defendant had asked her that since she had heard the defendant skid then why did Simon not go ahead. [ 35 ] Simon also said she had been concerned with her son in the back seat after the collision. [ 36 ] In addition, Simon said she had seen other people in the car that had hit her and said they were the defendant’s wife and son, and they had been sitting in the back seat of that car.

She also said there had been no one sitting in the front passenger seat of the defendant’s car. [ 37 ] Furthermore, Simon said she did not see any other collisions or accidents while she was at the intersection and that she had also observed vehicles flowing for 10 minutes.

In addition, she said that there were no other vehicles that had been involved in the collision or that there had been other collisions, nor had she heard other screeching of tires at the intersection. [ 38 ] Simon also said she could see the traffic lights, but that there had been nothing unusual about the traffic lights. [ 39 ] Before arriving at that intersection, Simon said she had entered the Sandalwood Parkway East from Chinguacousy and had been driving for about three or four city blocks before she reached the intersection at Sunforest Drive, which is east of Highway 10.

She also said she had come from the McLaughlin and Highway 10 area. [ 40 ] In addition, Simon said she did not have any difficulty stopping her vehicle that morning at any intersection controlled by a traffic light.

She also said she had no problem stopping at the intersection of Sandalwood Parkway East and Sunforest Drive. [ 41 ] Simon also said the police had arrived about 10 minutes later. [ 42 ] Moreover, Simon said the defendant had been wearing flip-flops with bare feet. [ 43 ] Furthermore, Simon said she did not see the defendant’s vehicle approaching her vehicle until after she had stopped her car and heard the screeching sound.

As for the screeching noise, Simon said that it had meant that a vehicle had to make a screeching halt and had trouble stopping when applying the brakes. [ 44 ] Simon also said she had been driving since she was 16 and has at least 30 years of driving experience. [ 45 ] In addition, Simon said she had discussed the case at the roadside with the other witness, who was not the defendant. [ 46 ] Furthermore, Simon said she did not see the defendant’s vehicle speeding or weaving in or out of traffic, nor did she see the defendant’s vehicle involved in any bad driving behavior before she had been hit.

[ 47 ] When shown the photograph taken of her vehicle and the defendant’s vehicle after their collision (Exhibit #1), Simon said that her vehicle was the front vehicle in the photograph that was stopped over the white lines and that the defendant’s vehicle was to the back of her vehicle. She then explained that her vehicle from the collision had been pushed forward into the intersection.

(2) Kingsley Henry (an independent witness driving about five car lengths behind the defendant’s vehicle in the same lane) [ 48 ] Kingsley Henry testified he had witnessed an accident on December 12, 2015, as he approached the traffic lights at the intersection.

He believes the accident had occurred in the early afternoon. [ 49 ] In addition, Henry testified there are two lanes for eastbound Sandalwood Parkway East and that he had been driving in the curb lane. [ 50 ] Henry also said that there had been two cars driving ahead of him and that when the traffic light had changed to red, the first car (Simon’s vehicle) had slowed down to stop. In addition, Henry said he had slowed down, but the second car (defendant’s vehicle) or the vehicle immediately in front of him did not appear to be slowing down.

Furthermore, Henry said he had observed that the second car try to stop at the last second but had lost control and rear-ended the first car, which had already stopped for the traffic light. [ 51 ] In addition, Henry said he had been driving about five car lengths behind the second car and paying attention to the traffic signals. He also said he had to look up for the traffic signals and had seen everything occur. [ 52 ] Furthermore, Henry said that the first car had appeared to stop for the yellow light. He also said that it had been a yellow light first and then had changed to a red light.

In addition, he said the first car had not fully stopped until the yellow light had turned to red. [ 53 ] Moreover, Henry said because it had been raining the road had been wet, which had obligated everyone to drive according to the weather conditions. However, he also said that it had been raining, but that it had stopped.

Henry also said the road was still wet at the time of the collision and may have been slippery because it had been wet. [ 54 ] Furthermore, Henry said that the first car had slowed and stopped gradually and that it had not been a last second stop, while the second car had stopped abruptly at the last second.

Furthermore, Henry said that he did not see anything that would have caused the second car to stop abruptly, by explaining that he did not see anything crossing and had only seen just the two cars involved in the collision. [ 55 ] In addition, Henry said that the second car had suddenly braked and rear-ended the first car. Henry also said the first car had not been stopped for that long, maybe for half of a second before the second car had contacted the first car.

He then said that the first car had been pushed forward about half of a car length over the line. [ 56 ] Henry then said he stopped and called the police first and then got out of his car to ask if everyone was okay. He said that the driver of the first car had been a female and that he had observed her here today in the courtroom. And, for the driver of the second car, Henry said he had also observed that person in the courtroom and then pointed to the defendant as the driver of the second car.

Henry also said he had observed both drivers being out of their respective cars. [ 57 ] In addition, Henry said he had been driving for approximately 1.5 kilometers from the Queen Mary and McLaughlin area and had stopped at four intersections before reaching the intersection in Brampton where the collision had occurred. He further said he had no difficulty in stopping at any of those intersections where he had stopped at earlier.

He also said that he had just applied the brakes on his car and slowed down and had no problems bringing his vehicle to stop at that intersection where the collision had occurred. [ 58 ] Henry also testified that he did not know the other participants in this proceeding. He also said he lives in the area where the intersection was situated. In addition, he thinks the speed limit for the road was 60 k.p.h., but did not pay attention to the speed the defendant’s vehicle had been doing until the light had changed.

[ 59 ] Henry also said he had made a statement to the police when the police arrived. [ 60 ] Moreover, Henry said that there had only been three of them stopped at the intersection. In addition, Henry said that he did not see any other vehicles go through the intersection on a yellow light. [ 61 ] Henry also said that the defendant’s car did not appear to be speeding nor weaving side to side and that the defendant’s driving behaviour did not cause Henry to have any concern.

(3) Cst. George (the police officer who investigated the collision and charged the defendant) [ 62 ] Cst. George testified he is a police officer and that he has been assigned to 22 Division of the Peel Region Police since 2008. He also said he had investigated the present matter, but is not certified as an accident and collision reconstructionist . However, he said he has investigated accidents since 2007. In respect to his investigation of the present matter, Cst.

George said he had received a radio call at 10:55 a.m. about a motor vehicle collision that had occurred on Sandalwood Parkway East. [ 63 ] In addition, Cst. George said that he arrived at 11:05 a.m. at the intersection and spoke with the parties involved in the collision and one independent witness who had been there. Moreover, Cst. George said he does not speak the Arabic language, but that the defendant’s English had been sufficient enough, so that Cst. George could have a conversation with the defendant. [ 64 ] Furthermore, Cst.

George said that Braidwood Lake Road runs north of the intersection while Sunforest Drive runs to the south. [ 65 ] Cst. George also said that when he had arrived at the intersection he had observed two motor vehicles in the curb lane of eastbound Sandalwood. He said the first vehicle was a grey four-door Toyota Corolla with licence plate number BHBK212. For the second vehicle, Cst. George said that it was a KIA Sorrento with licence plate number BXEX530. He also said the KIA Sorrento vehicle was being driven by Simon while the Toyota Corolla vehicle was being driven by the defendant, Shant Papzyan. Cst.

George then identified Shant Papzyan in the courtroom as the defendant. He also said that the defendant had provided him with a valid Ontario driver’s licence in the name of Shant Papzyan. [ 66 ] In addition, Cst. George said the Toyota motor vehicle had major damage at the front of the vehicle while the Sorrento vehicle had been moderately damaged at the rear of the vehicle. When he was shown the two photographs entered as Exhibit #1, Cst. George said that the way the vehicles had been shown situated in the photographs is the way the vehicles had been situated when he had arrived at the intersection.

He also said the line markings, the crosswalk, and marks were also depicted on the photographs. [ 67 ] Cst. George also said he had no concerns with the traffic lights and said there had been no discrepancies from his viewpoint or position. He also said he had observed three plus cycles and there had been no discrepancies. He further said the traffic light had cycled from green to yellow to red. He also noted that the amber or yellow light had been on for six or seven seconds. Furthermore, he said the traffic lights were not malfunctioning.

He also said he is not aware of any request that had been made to rectify the traffic lights and put them in manual control. Nor had there been an officer there directing traffic or an officer dispatched there to control traffic. In addition, he said he did not check to see if there had been any prior maintenance issue with those traffic lights in the past. [ 68 ] To get to the intersection, Cst. George said he had travelled a few minutes westbound on Sandalwood Parkway East. He also said the traffic had been slow and that he had no problem slowing down or stopping when he put on the brakes of his cruiser.

He also said that it had been raining and the roads were wet and slippery. However, he did not observe any oil on the road. [ 69 ] In addition, Cst. George said he had been at the intersection of the collision from 11:05 a.m. to 1:00 p.m. He also said there had been no further accidents there while he had been at the scene. [ 70 ] Moreover, Cst. George said that the speed limit for eastbound Sandalwood Parkway East in the area where the collision occurred is a posted 60 k.p.h. speed limit.

[ 71 ] In addition, Cst. George said he did not do a detailed analysis of the accident or a debris field analysis. He also said he did not test the brake lights in the KIA Sorrento vehicle nor did he have any information on the reaction time of the drivers that were involved in the collision. In addition, he said that he did not have any information about the speed of the defendant’s vehicle nor did he have any concern about drugs or alcohol. [ 72 ] Cst. George also said in laying charges that each case is different.

He also said that despite having discretion, he usually lays careless driving charges in rear-end collisions. For the case at bar, Cst. George he said he had laid the careless driving charge based on the information he had received from the witnesses and the position of the two motor vehicles involved in the collision.

(4) Shant Papzyan (the defendant) [ 73 ] Shant Papzyan, the defendant, testified that he recalls the collision, which had occurred on a Saturday at approximately 10:40 to 10:42 in December while he had been taking his wife to work, but said he had not been in a hurry.

He also said that his wife and four- year old son were in the car, which is a 2007 Toyota Corolla. [ 74 ] In addition, the defendant said that because there had been some rain he had been driving slower than usual and drove on the right side of the road. [ 75 ] Furthermore, the defendant said the light had been green and the vehicle in front had been driving normal, but when the light had changed to yellow the defendant said that half of the car which had been driving immediately in front of him, had crossed the pedestrian sign as soon as the light had turned yellow and then immediately stopped.

Then when he observed the red brakes lights on the car in front of him go on, he said he immediately slammed on his brakes and his car skidded.

He also said that he thought for a split second about moving to the right a little to avoid the car in front of him, but could not control his car because of the skid and then the accident between the car in front and his car occurred. [ 76 ] In addition, the defendant said he had been familiar with the area, since he has taken his wife to work for more than one year and eight months. [ 77 ] Furthermore, the defendant testified that he had been driving at about 42 to 44 k.p.h. and the reason why he recalls what speed he had been driving at was because he had looked at his speedometer 15 seconds earlier. [ 78 ] The defendant also said that just before the accident had occurred the distance between his car and the car driving in front of him had been about 10 to 11 meters. [ 79 ] When shown the photographs (Exhibit #1) that he had taken of the two vehicles still touching each other after the accident, the defendant said that the photographs show that the rear part of the Simon vehicle was on the pedestrian line and that his vehicle had been locked into the Simon vehicle. [ 80 ] Also, when asked if the Simon vehicle had moved after his vehicle collided into it, the defendant said, “No, not at all”.

Then when asked how far his vehicle had skidded after he had applied the brakes, the defendant replied that he skidded for four to five seconds and that he travelled 10 to 11 meters or approximately 36 feet in his skid before striking the Simon vehicle because the ground was very slippery, since it was just starting to rain. The defendant also referred to visible puddles of water in the photograph.

He also agreed there had been no ice on the road at the time of the collision. [ 81 ] In trying to avoid the collision, the defendant said he had tried to move to the right and that the side of his tires may have been stopped by the sidewalk curb to slow him down before his vehicle had hit the Simon vehicle. [ 82 ] Moreover, when asked about other witnesses having testified earlier about the traffic light being the colour yellow for quite some time, the defendant disagreed with their testimony and replied that the traffic light had immediately turned yellow when Simon’s car had stopped and that her testimony is different from his.

However, he said that his testimony is not different from Kingsley Henry’s testimony about the Simon car being stopped when the light became yellow.

[83] Furthermore, the defendant said he had not taken any medication or drank any alcohol. [84] In addition, he said he had taken photographs of the two vehicles in the collision immediately after the accident. [85] The defendant also said that his Toyota motor vehicle has 130,000 kilometers on it, but that his tires were very good and that hisbrakes were also in good shape. [86] As for what caused his vehicle to collide into the Simon’s SUV motor vehicle, the defendant said it had been because his vehiclehad been skidding.

Furthermore, because the Simon vehicle had not stopped in the right place or at the right time, the defendantexplained that he had questioned Michelle Simon, “Why did you stop while it was yellow and after the vehicle had passed the pedestriancrosswalk?” He also said that he had read the law on yellow traffic lights and said that the law states that one has to stop for a yellowlight if one can stop, but if one cannot stop then one can cross safely. [87] Furthermore, the defendant reiterated that the traffic light was green when one-half of the Simon car was on the pedestriancrossing and that the Simon vehicle had stopped after the pedestrian crossing. 3.

ANALYSIS [88] Since careless driving is a strict liability offence then the fault element for careless driving is one of negligence, in which theprosecution does not have to prove any mens rea element in order for a conviction and is only legally obligated to prove the accused hascommitted the actus reus of the offence beyond a reasonable doubt: R. v. Cianchino, [2010] O.J. No. 3162 (O.C.J.), at para. 93, and in R.v. Hubbs, 2014 ONCJ 32 , [2014] O.J. No. 381 (O.C.J.), at para. 49.

As such, once the prosecution proves an accused hascommitted the actus reus of the offence beyond a reasonable doubt, then in order for the accused to be acquitted of the offence theaccused must prove on a balance of probabilities that they had not been at fault or negligent and that they had taken all reasonable stepsfor the circumstances to prevent or avoid the prohibited act or that they had reasonably believed in a mistaken set of facts which, if true,would render their act or omission innocent: R. v. Sault Ste. Marie (1978), (SCC), 40 C.C.C. (2d) 353 (S.C.C.). [89] Furthermore, in R. v.

Beauchamp, (ON CA), [1953] 4 D.L.R. 340, the Court of Appeal for Ontario hasformulated a test for determining whether an accused motorist should be held liable for the offence of careless driving.

The test iswhether the prosecution has proven beyond a reasonable doubt that the accused motorist, in light of the existing circumstances of whichthe accused motorist was aware of or which a motorist exercising ordinary care ought to have been aware of, had failed to use the careand attention, or give other persons using the highway the consideration that a motorist of ordinary care would have used or given in thecircumstances, and that the conduct in question must be of the nature that breaches a duty to the public and deserving of punishment: It is whether it is proved beyond reasonable doubt that the accused, in the light of existing circumstances of which he was aware or ofwhich a driver exercising ordinary care should have been aware, failed to use the care and attention or to give to other persons using thehighway the consideration that a driver of ordinary care would have used or given in the circumstances. … There is a further important element that must also be considered, namely, that the conduct must be of such a nature that it can beconsidered a breach of duty to the public and deserving of punishment. [90] In addition, in R. v.

Kinch, [2004] O.J. No. 486 (S.C.J.O.), at paras. 50 to 53, Durno J. after reviewing the law on careless drivingsummarized the legal criteria or principles to take into consideration for determining whether an accused motorist has committed theoffence of careless driving.

This includes that the standard of care and skill required of a motorist is not one of perfection; that thefactual standard of care and skill is constantly shifting, depending on road, visibility, weather conditions, traffic conditions and any othercondition that ordinary prudent motorists would take into consideration; that the standard of care and skill is objective, impersonal anduniversal, and not related to the degree of proficiency or experience of a particular motorist; and that in cases involving accidents, thegravamen of the offence is whether the prosecution has established the accused motorist had been driving carelessly and not based on theconsequences of the motorist’s driving [emphasis is mine below]:

The test for careless driving has remained constant since the Court of Appeal decision in Beauchamp, supra. The main criteria are thestarting point in determining whether the Crown has established the trial judge erred in law: * The evidence must be such as to prove beyond a reasonable doubt that the accused drove without due care and attention or withoutreasonable consideration for others. * The standard of care and skill is not one of perfection. Rather, it is a reasonable degree of skill, and what an ordinary person woulddo * The use of the term "due" means care owing in the circumstances.

While the legal standard of care remains the same - what theaverage careful man would have done in the circumstances, the factual standard is constantly shifting, depending on road, visibility,weather conditions, traffic conditions and any other condition that ordinary prudent drivers would take into consideration. * The law does not require of any driver that he should exhibit perfect nerve and presence of mind, enabling him to do the best thingpossible. It does not expect him to be more than ordinary men.

Drivers of vehicles cannot be required to regulate their driving as if inconstant fear that other drivers, who are under observation, and apparently acting reasonably and properly, may possibly act at a criticalmoment in disregard of the safety of themselves and other users of the road. * The standard was objective, impersonal and universal, in no way related to the degree of proficiency or experience of a particulardriver. There was a further important element - that the conduct must be of such a nature that it could be considered a breach of duty to thepublic, and deserving of punishment.

This further step must be taken even if the accused's conduct fell below the standard. The test where an accident has occurred, is not whether the accident would not have happened if the accused had used greaterskill or care, but whether it was proved beyond a reasonable doubt that the accused, in the light of existing circumstances of which heknew or should have known, failed to use the care and attention or to give to other users of the highway the consideration that a driver ofordinary care would have used, or given in the circumstances.

In cases involving accidents, the gravamen of the offence is whether the prosecution established the accused was driving carelessly, andnot the consequences of the driving: R. v. Pyszko [1998] O.J. No. 1218 (Ont. Ct. J.). Where an accident has occurred, the fact that serious injury or death has resulted is not, except in unusual cases, relevant to anassessment of whether there has been a departure from the standard of care which would justify a finding of careless driving: R. v.Globocki (1991), 26 M.V.R. (2d) 179 (Ont. Ct. J.-Prov. Div.).

The Crown had to show a sufficient departure from the standard of aprudent and reasonable driver to make the driving "deserving of punishment." In acquitting the accused who had struck a pedestrian inGlobocki, the trial judge noted: A driver is entitled to make reasonable assumptions about the behavior expected of other users of the road, and it is notunreasonable to assume that a pedestrian crossing the roadway at a time when vehicles are approaching will not simply walk in front ofoncoming vehicles.

Therefore, the mere fact that this defendant failed to take action as the pedestrian crossed the curb lane does notestablish a departure from the standard of care expected in the circumstances. Finally, Keenan J. sitting on appeal in R. v. Ashton [1985] O.J. No. 1795 (Ont. Dist. Ct.) rejected the Appellant/Crown'ssubmission that a fact in support of a finding of careless driving was that the Respondent was driving a motorcycle which killed onehuman being and seriously injured another. The position reflected a fundamental misconception of the principles of liability.

It was thewrongful act or omission of the offender which rendered him or her liable, not the unhappy result. [91] As well, in R. v. McIver, (SCC), [1965] O.J. No. 998 (O.C.A,), Mackay J.A. recognized that an accused motoristcan show an absence of negligence as a defence to careless driving by proving on a balance of probabilities that the accused motorist’simpugned driving conduct had been caused by a mechanical failure or other circumstance that they could not have reasonably foreseen

[emphasis is mine below]: On a charge laid under s. 60 [now s. 130] of the Highway Traffic Act, it is open to the accused as a defence, to show an absence ofnegligence on his part. For example, that his conduct was caused by the negligence of some other person, or by showing that the causewas a mechanical failure, or other circumstance, that he could not reasonable have forseen. … It is in accord with principle to assumethat the standard of proof to be attained by D is on the balance of probability only.

Nevertheless, even if D fails in this endeavour, therecannot be a conviction unless P has proved his case beyond reasonable doubt. [92] Moreover, Fontana J. at para. 14 in R. v. Pyszko, [1998] O.J. No. 1218 (Ont. Ct. (Prov. Div.)), explained that the holding in R. v.Beauchamp had been modified by the Court of Appeal in R. v. McIver, in which the onus to demonstrate that the impugned act had beendone without negligence or fault as a defence to careless driving, had been shifted to the accused motorist: I am of the view that Beauchamp is modified by McIver which is later in time.

McIver, in my view has the effect of shifting the onus to theaccused to demonstrate that the act was done without negligence or fault. [93] Furthermore, in R. v. Skorput (1992), (ON CJ), 72 C.C.C. (3d) 294 (Ont. Ct. (Prov. Div.)), MacDonnell J. (ashe was then) held that in order to establish a prima facie case of careless driving sufficient to convict an accused motorist who elects topresent no evidence, the prosecution must prove beyond a reasonable doubt that the accused motorist’s driving conduct is a departurefrom the standard of care of a motorist exercising ordinary care.

Moreover, MacDonnell J. also confirmed that the onus on an accusedmotorist to establish an absence of negligence or fault only arises once the Crown establishes a prima facie case [emphasis is minebelow]: Careless driving is a regulatory offence as that term is understood in light of Sault Ste. Marie and Wholesale Travel. As was statedabove, in the prosecution of a regulatory offence the Crown ordinarily establishes a prima facie case upon proving that the defendantcommitted the actus reus of the offence.

At that point, the burden of showing that reasonable care was taken shifts to the defendant.However, careless driving is somewhat of an anomaly in that the failure to take reasonable care is part of the actus reus of the offence.In R. v. Beauchamp (1953), (ON CA), 106 C.C.C. 6, at page 13, the Ontario Court of Appeal stated that the test ofcareless driving is: ...not whether, if the accused had used greater care or skill, the accident would not have happened.

It is whether it is provedbeyond reasonable doubt that the accused, in light of the existing circumstances of which he was aware or of which a driver exercisingordinary care should have been aware, failed to use the care and attention or to give to other persons using the highway the considerationthat a driver of ordinary care would have used or given in the circumstances. To establish a prima facie case of careless driving, sufficient to convict a defendant who elects to present no evidence, theprosecution must establish beyond a reasonable doubt a departure from a standard of care.

The onus of establishing an absence ofnegligence only arises once the Crown establishes a prima facie case. [94] As well, in determining whether the offence of careless driving has been committed by an accused, the impugned driving must beshown by the prosecution to depart from the standard of care that a reasonably prudent motorist would have exhibited in the samecircumstances that had confronted the accused motorist and which is also deserving of punishment: R. v. Wilson, (ONCA), [1971] 1 O.R. 349, 1 C.C.C. (2d) 466 (O.C.A.).

Hence, proof of mere negligent driving does not necessarily equate to the offenceof careless driving, unless it is deserving of punishment. [95] Moreover, as this court explained at paras. 213 to 214 in R. v. Jackson, 2010 ONCJ 487 (O.C.J.), the analysis to be used indetermining whether the accused motorist should be convicted of committing the strict liability offence contained in s. 130 requires atwo-stage inquiry, where it has to be first determined whether the Crown has proven beyond a reasonable doubt that the accused motoristcommitted the actus reus of the offence.

And, if the Crown meets its burden, then the second stage of the inquiry is undertaken todetermine if the accused motorist has proven they exercised due diligence on the balance of probabilities by either showing that they hadtaken all reasonable care for the circumstances to avoid committing the offence or that they had acted under a reasonable mistaken set offacts, if believed, would make committing the prohibited act innocent: Hence, the distinctive feature of strict liability offences in comparison to the mens rea or absolute liability category of offences isthat there is a two-stage inquiry for determining whether the defendant has committed the strict liability offence in question.

The

prosecution in the first stage of the inquiry for this proceeding is required to prove beyond a reasonable doubt that the defendant has committed the prohibited act … If the prosecution fulfils its burden of proof, then in the second stage of the inquiry the defendant has the onus to prove on a balance of probabilities the defence of due diligence or that he had not been negligent or at fault in committing the prohibited act, in order to be acquitted of the offence.

Despite the tragic consequences, it must be kept in mind that a trier of fact does not consider or decide by emotion, but must impassionately and soberly consider all the admissible evidence and testimony and to properly apply it to the relevant law in deciding whether the defendant has committed the offence … beyond a reasonable doubt and in determining whether the defendant has also met his burden of proving that he had not been at fault or negligent in his conduct, so as to be acquitted of the offence for this particular category of offence that allows for a due diligence defence. [ 96 ] Also, as expounded by this court in R. v.

Cianchino , [2010] O.J. No. 3162 (O.C.J.), at para. 91 , it is useful in careless driving cases to use a risk analysis framework, which involves differentiating between risk assessment and risk management for the two-stage inquiry that is used to determine whether an accused has committed the offence of careless driving. This framework had been developed and explained by Todd Archibald, Kenneth Jull, and Kent Roach in their textbook , “Regulatory And Corporate Liability: From Due Diligence To Risk Management” (Aurora, Ontario: Canada Law Book Inc., 2007).

In addition, at pp. 4-14.1 to 4-15 of their tome, the three authors equated the two-stage inquiry for strict liability offences as an assessment of the risk for the first stage of proving the actus reus of the offence and the management of that risk for the second stage to determine whether the defence of due diligence had been made out by the accused.

Furthermore, where the actus reus of the offence requires proof of an accused’s lack of reasonable care as an element of the offence, then the first stage of the inquiry requires the court to assess the risk and foreseeability of the harm that could result from the accused’s impugned conduct, as well as the accused’s awareness of the risk of harm that their conduct would create, in deciding whether the actus reus of the offence has been committed beyond a reasonable doubt; while for the second stage of the inquiry where the accused has the onus to prove they exercised due diligence on a balance of probabilities to avoid being convicted, the trier is required to assess the accused’s efforts in the management of that risk of harm in order to determine whether the accused had taken all reasonable care in the circumstances: The concept of due diligence might appear to create a paradox at first sight.

If the prosecution has proven that the actus reus has occurred beyond a reasonable doubt, how can the defence prove that reasonable steps were taken to avoid that very event or any foreseeable harm? As first blush, due diligence appears to undercut the risk assessment inherent in the actus reus. If one is committed to the values underlying the codification of these standards in the first place, it seems counter-intuitive to now engage in a discussion of their permissible failure. For example, for an environmentalist, it seems wrong to acquit a corporation for permitting a discharge that impairs the environment.

The resolution of this apparent paradox lies in distinguishing between risk assessment and risk management. Risk assessment is central to the codified standards that the prosecution must prove were violated, when the focus shifts to due diligence, the issue relates to fault and punishment. Should an organization or individual be punished for their failure to maintain the codified standards in this particular case? Here the emphasis is on risk management. It is possible that a failure to maintain standards is excusable in all the circumstances when put in a larger context.

This is unique to the two-staged element of due diligence. [ 97 ] Furthermore, in their textbook, “Regulatory And Corporate Liability: From Due Diligence To Risk Management”, at p. I-3, the authors explained that proof is required of whether the standard of care required to prevent the harm has been met by the accused person but that proof of actual harm is not required in order to prove a breach of the regulation: Many regulatory offences do not require actual harm but, rather, are based on a threshold standard of care designed to prevent harm. (

A) FIRST STAGE OF THE INQUIRY FOR A STRICT LIABILITY OFFENCE: HAS THE PROSECUTION PROVEN THE ACTUS REUS OF THE OFFENCE BEYOND A REASONABLE DOUBT? [98] The prosecution at trial had presented the testimony of Michelle Simon, Kinsley Henry, and Cst. George to prove the defendant had driven without due care and attention or without reasonable consideration for other persons using the highway, and that the defendant’s particular driving conduct had departed from the standard of care which a reasonable and prudent motorist would have exercised in the same circumstances.

[99] In addition, the prosecution submits that the evidence which infers that the defendant had not been driving at the slower speed of42 to 44 k.p.h. that the defendant had said he had been driving at, but that the defendant had been driving at a much higher speed justbefore the collision is based on the significant amount of visible damage that had been done to the defendant’s vehicle when it hadcollided with the Simon vehicle. [100] Furthermore, the defendant’s testimony contradicts the testimony of both Michelle Simon and Kingsley Henry.

The defendanthad testified that the Simon vehicle had entered the intersection of a green light and then abruptly stopped on the pedestrian crosswalkthat is located just east of the stop line when the traffic light and changed from green to yellow, and that it was this unexpected andabrupt stop by the Simon vehicle within the intersection that had prevented the defendant from being able to stop his vehicle in time onthe slippery and wet road surface while he had only been driving at the lower speed of 42 to 44 k.p.h. in a 60 k.p.h. zone.

However,Michelle Simon had said she had not abruptly stopped her vehicle, but had gradually slowed and stopped her vehicle for the yellow lightwhen she saw the traffic light for her change from green to yellow when she was about four to five car lengths from the intersection.

Incorroborating Simon’s testimony, Kingsley Henry, who had been driving in the same curb lane as the Simon’s vehicle and thedefendant’s vehicle eastbound on Sandalwood Parkway East and had been driving five car lengths immediately behind the defendant’svehicle, had testified that the Simon vehicle had not abruptly stopped, but had stopped gradually for a yellow light, and that the Simonvehicle had come to a full stop before the intersection when the light had changed from yellow to red, and that the Simon vehicle hadbeen hit by the defendant’s vehicle and then pushed several feet past the stop line into the intersection. [101] Ergo, because the defendant’s testimony is inconsistent with and contradicts the testimony of both Michelle Simon and KinsleyHenry, then the key issue in determining whether the prosecution has proven the defendant had committed the offence of careless drivingbeyond a reasonable doubt will depend on the credibility of the witnesses who had testified at trial.

(1) Credibility And Reliability Of The Witnesses’ Observations And Testimony. [102] As indicated, the outcome of this trial will come down to credible and reliable testimony. For a trier of fact, it is a challengingtask to assess the credibility of a particular witness or to determine the veracity of the witness’s account of an event. However, courtshave tried to lessen this difficulty by developing a rational approach for assessing credibility and the veracity of that specific account.

One such approach for assessing the veracity of an account or version of an event was adopted by Schroeder J.A. of the Ontario Court ofAppeal, at para. 22, in Phillips et al. v. Ford Motor Co. of Canada Ltd. et al., (ON CA), [1971] 2 O.R. 637, and fromthe reasoning in Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), that had based the assessment of thetruth of a witness’s account on its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions [emphasis is mine below]: … While credibility is one test to be applied in the evaluation of testimony, it is by no means the only test, nor is it, in all cases, the mostsignificant one.

That is especially so in the present case in which there is such an enormous volume of unanswered opinion evidencegiven by highly reputable and well-qualified witnesses against which the plaintiffs' evidence must be weighed. One of the mostenlightened guides on this aspect of a trial Judge's functions appears in a judgment of the late O'Halloran, J.A., delivered in the BritishColumbia Court of Appeal in Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354.

What the learned Jurist there stated isso apposite in the present case that I feel impelled to quote the following extract from his reasons which appear at pp. 356-8: If a trial Judge's finding on credibility is to depend solely on which person he thinks made the better appearance of sincerity in thewitness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. Onreflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility ofthe evidence of a witness.

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what hehas seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), (SCC), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a veryunfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisivelyto the conclusion that he is actually telling the truth.

I am not referring to the comparatively infrequent cases in which a witness is caughtin a clumsy lie. The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience incombining skilful exaggeration with partial suppression of the truth.

Again a witness may testify what he sincerely believes to be true,but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to aconclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe thetrial Judge with a divine insight into the hearts and minds of the witnesses.

And a Court of Appeal must be satisfied that the trial Judge'sfinding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can betested in the particular case. [103] In addition, whether a witness has given credible testimony can be tested through cross-examination and assessed on inconsistent,incredible, and plausible testimony. In Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354, [1951] B.C.J.

No. 152(B.C.C.A.), at paras. 10 to 12, the British Columbia Court of Appeal mentioned that the real test for assessing the truth of the story froma witness, who has an interest in the outcome of the trial, will depend on its harmony with the preponderance of the probabilities which apractical and informed person would readily recognize as reasonable in that place and in those conditions [emphasis is mine below]: If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in thewitness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box.

Onreflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility ofthe evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what hehas seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), (SCC), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295.

A witness by his manner may create a veryunfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisivelyto the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness iscaught in a clumsy lie. The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to anexamination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth ofthe story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informedperson would readily recognize as reasonable in that place and in those conditions.

Only thus can a Court satisfactorily appraise thetestimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long andsuccessful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what hesincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to betelling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of adangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe thetrial Judge with a divine insight into the hearts and minds of the witnesses.

And a Court of Appeal must be satisfied that the trial Judge'sfinding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can he testedin the particular case. [104] Therefore, in considering whether particular aspects of a witness’s testimony is to be believed, those aspects must accord with thepreponderance of probabilities, which a practical and informed person would readily recognize as reasonable in that place and in thoseconditions. [105] Moreover, in their textbook, The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011), authors Paciocco andSteusser, at pp. 32 and 33, in their discussion about the believability of evidence and the difference between the meaning of reliabilityand the credibility of a witness’s evidence, have succinctly explained that credibility refers to the honesty of the witness, while reliabilitydescribes the accuracy of evidence.

Moreover, they emphasize that evidence which shows that a witness has been corrupted, has amotive to mislead, or has discreditable character will be relevant to credibility. And, they further explain that reliability is affected by awitness’s ability to properly observe, to properly recall, and to properly communicate their observations of an event [emphasis is minebelow]: Assume a witness testifies that the robber with the gun was the person with a face tattoo of a stream of tears.

If the trier of fact isconcerned that the witness may be lying, or may be mistaken about this, the evidence may be given little if any weight. Believabilityaffects weight. When deciding whether evidence is believable, legal theory draws a helpful distinction between “credibility” and “reliability.”

“Credibility” is about the honesty of the witness. Evidence showing that a witness has been corrupted, has a motive to mislead, or has adiscreditable character will be relevant to credibility. For example, evidence that the witness identifying the robber was an accomplicewho has made a deal with the police could cause a trier of fact to give the testimony little weight. “Reliability” is the term used to describe the accuracy of evidence.

It can relate to the accuracy of a scientific or forensic process, butwhen applied to witnesses, reliability captures the kinds of things that can cause even an honest witness to provide inaccurateinformation. The reliability of witness testimony can be affected, for example, by (1) inaccurate observations, (2) memory problems, or(3) a failure by the witness to communicate observations accurately.

Our witness may, for example, have been too far from the scene toconclude dependably that it was the tattooed man who held the gun, or he may not recall sufficient details of the event to instillconfidence that he is right about this. Although credible, his evidence will be given little weight because it is unreliable. [106] Also, in R. v. Jaquot, [2010] N.S.J. No. 108 (N.S.P.C.), Tax J. had illustrated how to assess the credibility and reliability of awitness’s testimony by considering and assessing the particular witness’s testimony with other testimony.

Furthermore, Tax J. hadexplained, at para. 40, that there are many tools for assessing the credibility and reliability of testimony, such as consideringinconsistencies with previous statements or testimony at trial with independent evidence which has been accepted; assessing the partialityof witnesses due to kinship, hostility or self-interest; considering the capacity of the witness to relate their testimony, that is, their abilityto observe, remember and communicate the details of their testimony; and considering the contradictory evidence as well as the overallsense of the evidence and when common sense is applied to the testimony, whether it suggests that the evidence is impossible or highlyimprobable [emphasis is mine below]: There are many tools for assessing the credibility and reliability of testimony.

First, there is the ability to consider inconsistencies withprevious statements or testimony at trial and with independent evidence which has been accepted by me. Second, I can assess thepartiality of witnesses due to kinship, hostility or self-interest. Where an accused person testifies this factor must be disregarded insofaras his or her testimony is concerned, as it affects every accused in an obvious way, and may have the effect of reversing the onus ofproof.

Third, I can consider the capacity of the witness to relate their testimony, that is, their ability to observe, remember andcommunicate the details of their testimony. Fourth, I can consider the contradictory evidence as well as the overall sense of the evidenceand when common sense is applied to the testimony, whether it suggests that the evidence is impossible or highly improbable [107] Furthermore, in Novak Estate (Re), [2008] N.S.J.

No. 426 (N.S.S.C.), Warner J., at paras. 36 and 37, summarized some of thejudicial tools that could be used for assessing credibility: There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, priorinconsistent statements, inconsistencies between the witness's testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness's testimony.

c) The ability to assess whether the witness's testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v.Chorny, (BC CA), [1951] B.C.J. No. 152, 1951 CarswellBC 133, it is "in harmony with the preponderance ofprobabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions", butin doing so I am required not to rely on false or frail assumptions about human behavior.

d) It is possible to rely upon the demeanor of the witness, including their sincerity and use of language, but it should be done withcaution (R. v. Mah, [2002] N.S.J. No. 349, 2002 NSCA 99, paras. 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider themotive that witnesses may have to fabricate evidence. R. v. J.H., (ON CA), [2005] O.J. No. 39 (Ont. C.A.), paras. 51-56). There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, atrier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence. (SeeR. v. D.R. (SCC), [1996] 2 S.C.R. 291 at para. 93 and R. v. J.H., supra).

[108] And, in R. v. Comer, [2006] N.S.J. No. 291 (N.S.S.C.), the Nova Scotia Supreme Court, at paras. 96 to 98, summarized varioushuman factors that could be considered in weighing the testimony of witnesses which may affect the giving of perfectly honest evidence[emphasis is mine below]: In weighing the testimony of the witnesses I am obliged to consider human factors which may affect the giving of perfectly honestevidence. These factors may be phrased in the form of the following questions:

(1) Did the witness have any particular reason to assisthim or her in recalling the precise event that he or she attempted to describe?

(2) Could the witness, because of the turmoil surroundingthe event at the time it occurred, have been easily or understandably in error as to detail, or even as to the time of the occurrence? (3)What real opportunity did the witness have to observe the event? Where was he or she when the event happened? Was it a situation ofpanic or a relatively calm period and how would that affect recollection? If the witness's recollection was recorded when were the notesmade?

(4) Did the witness have any interest in the outcome of the trial or any motive for either favouring or injuring one side or theother or was the witness's evidence entirely independent?

(5) What was the memory capacity of the witness? What was the appearanceand demeanor of the witness in the witness box? Was the witness forthright and responsive to questions or was the witness evasive andhesitant? Was the witness argumentative?

(6) Was the witness's testimony reasonable and consistent within itself and with theuncontradicted facts. I am not bound either to decide an issue in conformity with the testimony of the largest number of witnesses if it does not proveconvincing to the mind either itself or as against the declarations and testimony of a smaller number of witnesses or other evidencewhich appeals to the mind with more convincing force. The testimony of any one witness who is found to be believable and credible issufficient for the proof of any fact that must be established beyond a reasonable doubt.

In finding the facts in this case the whole of the evidence must be considered and weighed. There are no facts until certain evidence isaccepted as believable, as credible, as truthful. [109] Also, in R. v. White, (SCC), [1947] S.C.J. No. 10 (S.C.C.), Estey J. noted that the issue of credibility is one of factwhich cannot be determined by following a set of rules suggested to have the force of law [emphasis is mine below]: The issue of credibility is one of fact and cannot be determined by following a set of rules that it is suggested have the force of law and,in so far as the language of Mr.

Justice Beck may be so construed, it cannot be supported upon the authorities. Anglin J. (later ChiefJustice) in speaking of credibility stated: by that I understand not merely the appreciation of the witnesses' desire to be truthful but also of their opportunities of knowledge andpowers of observation, judgment and memory - in a word, the trustworthiness of their testimony, which may have depended very largelyon their demeanour in the witness box and their manner in giving evidence. Reymond v. Township of Bosanquet [ (1919) (SCC), 59 Can. S.C.R. 452, at 460.].

The foregoing is a general statement and does not purport to be exhaustive. Eminent judges have from time to time indicated certainguides that have been of the greatest assistance, but so far as I have been able to find there has never been an effort made to indicate allthe possible factors that might enter into the determination. It is a matter in which so many human characteristics, both the strong andthe weak, must be taken into consideration. The general integrity and intelligence of the witness, his powers to observe, his capacity toremember and his accuracy in statement are important.

It is also important to determine whether he is honestly endeavouring to tell thetruth, whether he is sincere and frank or whether he is biassed, reticent and evasive. All these questions and others may be answeredfrom the observation of the witness's general conduct and demeanour in determining the question of credibility. (

a) Michelle Simon’s Credibility [110] Michelle Simon has been a credible and sincere witness. Her testimony had been consistent, had held up under cross-examination, and had not been exaggerated. In addition, her testimony had also been corroborated by the testimony of Kingsley Henry,who was an independent witness. (

b) Kingsley Henry’s Credibility

[111] Kingsley Henry’s testimony has also been a coherent, credible, and sincere. His testimony had also held up under cross-examination and had been for the most

part consistent with Michelle Simon’s testimony. [112] The only inconsistency between Henry’s testimony and Michelle Simon’s testimony is that Henry had testified that he did not seeany vehicles driving through the intersect

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