R. v. Monticolo, 2011 ONCJ 797

Citation: R. v. Monticolo , 2011 ONCJ 797 Ontario Court of Justice Provincial Offences Court ( Toronto West Region) Regina v. Leonard Monticolo Before His Worship P. Kowarsky Justice of the Peace Charge: Turn not in Safety- Section 142(1) of the Highway Traffic Act REASONS FOR JUDGMENT For the Prosecution: Ms. S. Quadrini For the Defendant: Mr. P. Martin Trial: June 24, August 12 and September 26, 2011 Judgment: December 21, 2011 R. v. Monticolo A. THE CHARGE 1 . The defendant is charged with the offence of “turn not in safety” contrary to section 142(1) of the Highway Traffic Act. 2 .

There is an abundance of well-documented jurisprudence in relation to the characterization of provincial offences as strict liability offences unless the requirements of mens rea or absolute liability are met. I am satisfied that the requirements of the latter two offence characterizations are not met with respect to the charge before me, and that the presumption of strict liability prevails. 3 . Consequently, this is a strict liability offence which places the onus on the Prosecution to prove the actus reus beyond a reasonable doubt.

In such event, the defendant may avoid liability if the Court is satisfied, on a balance of probabilities, that the defendant acted on a mistaken belief of fact which if true, would render the act innocent, or that he acted with due diligence in all the circumstances. B. THE POSITIONS OF THE PARTIES 4 . The position of the prosecutor is that the defendant was driving a motor vehicle on a highway, and made an unsafe left turn in front of oncoming traffic, thereby causing a collision. 5 .

The position of the defendant is that he had stopped his motor vehicle prior to making the left turn which he had intended to do, and before commencing his turn, his vehicle was struck by another motor vehicle being driven in the opposite direction on the same road, causing a “head-on” collision. C. THE PROSECUTION’S EVIDENCE 6 . Mr. Andreas Kristofferson’s testimony may be encapsulated as follows:-

a) On April 22 nd 2010 at about 6:00 or 7:00 pm he was driving his 1997 Honda Civic motor vehicle westbound on Allenby Avenue

heading towards Islington Avenue in Toronto. He was approaching the “T” intersection where Burrard Road runs northbound from Allenby Avenue, which has one lane in each direction.

b) At that time he saw another motor vehicle travelling eastbound on Allenby Avenue towards the “T” intersection with Burrard Road. He did not notice a left turn signal from the approaching vehicle, but in any event he had the right of way.

c) And “then I’m about to pass it and he just turns left right through from that street”. He was about two car-lengths away from the “T” intersection when he first observed the other vehicle.

d) The accident occurred in the westbound lane when the defendant’s vehicle made a left-hand turn from eastbound Allenby Avenue across the westbound lane, intending to travel northbound on Burrard Road. The defendant’s vehicle was less than one car-length away from his vehicle when the defendant made the turn.

e) There is no Stop Sign or traffic signal for either the eastbound or the westbound traffic at that “T” intersection.

f) The only Stop Sign at that location is the one facing north at southbound Burrard Road when it meets Allenby Avenue. g) “My front driver’s side got hit and his front passenger side got hit”. (Mr. Kristofferson pointed at the defendant in the courtroom, thereby identifying him as the person who had been driving the Volkswagen motor vehicle which had collided with his.)

h) The defendant fell to the ground as he got out of his car. People in the area called the ambulance and the police. The ambulance arrived on the scene about 15 or 20 minutes after the collision had occurred, and transported the defendant to the hospital. 7 . Under cross-examination, Mr. Kristofferson testified that he lives in the area. He conceded that when the police officer spoke to him at the scene of the accident, the officer informed him that his Driver’s Licence was under suspension, although he was unaware of the suspension. He was charged accordingly.

He rectified the matter thereafter, and re-instated his Driver’s Licence. 8 . When asked whether it had been a “head-on” collision, he replied in the affirmative. When the Court asked him to clarify what he meant by that, he said the following: “So, that’s his passenger’s side, up his corner because he’s trying to turn left, smashing me pretty much on my driver’s side but at the same time, at the front of the vehicle”. 9 . Mr.

Martin then asked: “So you say he was trying to turn left?” To which the witness replied: “No, he was turning left, right in front of me.” He told the Court that he did not see whether the defendant’s left-turn signal was on or not because… “I am driving straight. I don’t see why someone would try to turn left in front of me.” 10 . When asked where the cars ended up after the collision, his response was: “Still in the lane that I am in and he’s pretty much in my lane as well.” 11 . Under further cross-examination, Mr.

Kristofferson testified that there had been a parked car at the curb of the westbound lane on Allenby Avenue, which had required him to slow down, move slightly into the eastbound lane to pass it, and move right back into the westbound lane well prior to the collision. As he expressed it, he had to move into the eastbound lane to go around the parked vehicle “just a little bit, but enough time to go over and come back and to be in my lane for a bit and driving straight” in the westbound lane. 12 . Mr.

Kristofferson told the court that the damage to his vehicle as a result of this collision was such that it was a “write-off”. 13 . During cross-examination Mr. Martin raised the question as to whether or not it was a head-on collision, and the witness appeared to concede that it was. However, on re-examination by the prosecutor, Ms. Quadrini, the witness first described the collision as a head-on collision in that it was “from front bumper to front bumper, pretty much….or any of the front end hitting another front end.” 14 .

Although the witness seemed to be somewhat confused in relation to the precise meaning of a head-on collision, when questioned by the Court for clarification of his evidence in chief, he told the Court that the driver’s side of his car collided with the passenger’s side of the other car “at the front bumper corners.” 15 . The Prosecution’s second witness was the investigating officer, William Lipsey, who testified that –

a) On April 22 nd 2010 at approximately 8:26 am he received a radio call to attend at the location of the accident. He arrived at the scene at about 8:45 am.

b) After speaking with the drivers of the two cars involved in the collision, he observed the intersection, the vehicles and the damage, after which he prepared and submitted his report. 16 . Under cross-examination, he testified that he did not have any notes as to whether he had spoken to the defendant at the scene of the accident or at the hospital to which the defendant had been transported shortly after the collision. Furthermore, he did not take a statement from the defendant, but after speaking with the defendant and observing the collision damage, he charged the defendant with the offence before the Court today. D. THE TESTIMONY OF THE DEFENDANT 17 . In

summary, Leonard Monticolo testified as follows:

a) He lives “about two minutes from where the accident happened”.

b) Prior to the collision, he was heading east on Allenby Avenue intending to turn left and travel north onto Burrard Road to get to hishouse.

c) He put his left-turn signal on “and was planning to make a left turn when I saw a small white vehicle travelling southbound onBurrard toward the Stop Sign at Allenby, signalling to turn left, to travel east on Allenby.”

d) He was concerned that the white car had not seen him, even though his vehicle had come to a complete stop before commencing hisleft turn onto Burrard Road, “and I can remember being worried that it was a car that hadn’t seen me so I came to a full stop to make surethat it had saw (sic) that I was there and it didn’t have the right of way to turn at that point because I don’t have a Stop Sign and it does –that white car heading southbound at the Stop Sign.” E. ANALYSIS AND FINDINGS OF FACT 18. In their respective submissions, both Mr. Martin and Ms.

Quadrini expressed the view that the evidence provided by Officer Lipseywas limited, inconclusive, and insufficient to be of any probative value in these proceedings. I agree. Consequently, the determination ofthe verdict is based on the conflicting evidence of both parties to the collision. 19. In such circumstances, it is incumbent upon the Court to refer to the decision of the Supreme Court of Canada in R. v.

W.D., (SCC), [1991] 1 S.C.R. 742 (S.C.C.) in which Cory J. set out the credibility test as follows: 1) If the Court believes the defendant, the Court must acquit. 2) If the Court does not believe the defendant but is still left with a reasonable doubt by his testimony, the Court must acquit. 3) If on the totality of all the evidence which it does accept, the Court is still left with a reasonable doubt, the Court must acquit. 20. In my view, the pertinent legislation places the onus on the defendant to ensure that the turn can be made in safety.

I make no findingas to whether the defendant did in fact have his left-turn signal on at the time or not. The defendant says that he did; Mr. Kristoffersondoes not say that the defendant did not have his left-turn signal on; he simply says that he was looking ahead, and does not know whetherit was on or not. Even if I did accept that the turn signal was on, the defendant still had to ensure that the turn could be made in safety.The fact that there was a collision does not, in and of itself, establish that the defendant did not make the turn in safety. 21.

The issue of whether the collision was head-on or not was first raised during cross-examination during which the witness appeared tobecome confused as to the precise meaning of a head-on collision. However, upon re-examination and his response to clarificationquestions by the Court, he remained steadfast as to how the collision occurred, and maintained that the defendant’s turn in front of himwas the cause of the collision. 22. In my view, the photographs submitted by the defendant and entered into evidence, support the evidence of Mr.

Kristofferson that thedriver’s side front corner of his vehicle was struck by the passenger’s side front corner of the defendant’s vehicle, also causing damageto parts of the front ends of the vehicles in the process. 23. Furthermore, I completely reject the suggestion by Mr. Martin during his submissions that Mr. Kristofferson’s headlights were not onat the time. There is absolutely no evidence of this whatsoever. 24. Although I do not believe the evidence of the defendant, nor am I left with a reasonable doubt by it, I do not find that he wasdeliberately providing untruthful evidence to the court. 25.

The defendant’s evidence convinces me that he had been concentrating on the movement of the white car which was travellingsouthbound on Burrard Road just prior to the collision. He was concerned as to whether that car would stop at the Stop Sign at theintersection of Allenby and Burrard. Knowing this area as well as he testified he does, since he lives two minutes from where thecollision occurred, I come to the conclusion that in the past he has likely seen other cars not stopping at that Stop Sign, and making theirturns to travel east or west on Allenby without doing so. 26.

I find that the defendant saw that the white vehicle had indicated that it was going to turn left to travel east on Allenby Avenue. Thedefendant was concentrating on that vehicle in order to be sure that it was going to stop before making its left turn, and that once thedefendant was satisfied that the white car had stopped, he proceeded to make his left turn across the westbound lane without making surethat the turn could be made safely. 27. Consequently, I find the evidence of Mr. Kristofferson to be compelling. I am persuaded that the defendant did not make the turn

safely. I reject the evidence of the defendant that Mr. Kristofferson simply drove straight into him while the defendant was fully stopped. Despite attempts by the defence to confuse him in relation to whether the collision was head-on or not, I am persuaded by Mr. Kristofferson’s evidence, which is supported by the photographic evidence, that it was not a head-on collision. 28 . By way of a corollary to the reasons for my findings of fact in this case, I simply add that it would be a significant strain on common sense for me to accept the evidence of the defendant that he had not commenced his turn when Mr.

Kristofferson drove from the westbound lane into the eastbound lane and collided with the defendant’s stationary vehicle. F. DISPOSITION 29 . For the reasons which I have given I am satisfied that the Prosecution has proven the actus reus of the offence and that there is no evidence of due diligence on the part of the defendant which could exculpate him. 30 . Accordingly, I find that the Prosecution has proven its case beyond a reasonable doubt, and there will be a conviction registered. P. Kowarsky Justice of the Peace Province of Ontario