R. v. Tavares, 2023 ONCJ 94

CITATION: R. v. Tavares , 2023 ONCJ 94 DATE: March 3, 2023 IN THE MATTER OF the Highway Traffic Act, R.S.O. 1990, c. H.8 Between His Majesty The King prosecutor and Jordan Tavares defendant Ontario Court of Justice Brampton, Ontario Quon J. P. Reasons for Judgment Charges: (1) s. 144(7) H.T.A. – “fail to yield to pedestrian”. (2) s. 53(1) H.T.A. – “driving while under suspension”. Trial held: October 4 and November 17, 2022. Judgment rendered: March 3, 2023.

Counsel: M. Bayat, assistant Crown attorney K. Markoff, legal representative for the defendant Cases Considered or Referred To: Fraser et al. v. The King, (SCC), [1936] S.C.R. 296 (S.C.C.). R. v. Beatty, 2013 ONCJ 686 , [2013] O.J. No. 5607 (Ont. C.J.), Harris J. R. v. Dipnarine, 2014 ABCA 328 , [2014] A.J. No. 1102 (Alta. C.A.). R. v. Griffin, 2009 SCC 28 , [2009] S.C.J. No 28 (S.C.C.). R. v. Hayatibahar, [2022] O.J. No. 2850 (Ont. S.C.), Di Luca J. R. v Mattatal, [2019] Q.J. No. 5140 (Court of Quebec (Crim. and Penal Div.)), Meredith J.Q.C. R. v. McIvor, [2021] M.J. No. 169 (Man. C.A.). R. v.

Miller, (ON CA), [1988] O.J. No. 253 (Ont. C.A.), Dubin A.C.J.O., Martin and Tarnopolsky JJ.A. R. v. Montgomery, 2006 ONCJ 203 , [2006] O.J. No. 2267 (Ont. C.J.), MacDonnell J. R. v. Quick, [2015] O.J. No. 5433 (Ont. C.J.), McLeod J. R. v. Valde, [2016] O.J. No. 6732 (Ont. C.J.), O’Donnell J. R. v. Villaroman, 2016 SCC 33 , [2016] 1 S.C.R. 1000 (S.C.C.). Wild v. the Queen, (SCC), [1971] S.C.R. 101, [1970] S.C.J. No. 69 (S.C.C.). Statutes, Regulations and Rules Cited:

Highway Traffic Act , R.S.O. 1990, c. H.8, ss. 1(1) , 41 , 42 , 52 , 52(1) , 52(1) (b), 52(2) , 53(1) , 53(1.1) , 53(3) , 144 , 144(1) , 144(5) , 144(7) , 144(18) , 144(19) (a), 144(26) , 144(28) , and 144.1(1) . Highway Traffic Act , R.S.O. 1980, c. 198, s. 34. Reference Material Cited or Considered: A.W. Bryant, S.N. Lederman & M.K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham, Ontario: LexisNexis Canada Inc., 2009 ). Paciocco, D.M. and Steusser, L. The Law of Evidence, 6ed. (Toronto, Ontario: Irwin Law Inc., 2011), p. 541.

Exhibits entered: Exhibit "1" - Certified document from the Registrar of Motor Vehicles of the Ministry of Transportation dated August 16, 2022, which indicates that a male person named Jordan Tavares had his driver’s licence suspended effective September 12, 2019, for default of payment of fine and that this suspension was still in effect on July 28, 2020, and that a notice of suspension dated September 12, 2019 had been forwarded by mail on September 12, 2019 to Jordan Tavares to an address located at [removed for privacy] in Alliston, Ontario, which was the latest address on the records of the Ministry (2 pages).

Exhibit "2" - Google street map of the intersection of Steeles Avenue West and Lancashire Lane, in Brampton, in which Cst. Aljanazra drew symbols at the location of where he observed the black-coloured Dodge Ram pickup truck and the scooter in the south east corner of the intersection (1 page). Exhibit "3" - a prosecution DVD containing a videotape recording of the intersection of Steeles Avenue West and Lancashire Lane, in Brampton, which shows Cst. Aljanazra speaking and interacting with a male person who is not wearing a shirt. 1. INTRODUCTION [ 1 ] It was a sunny day. It was a windy day. It was July 28, 2020.

For most of us, it would be an uneventful day. But it was not so for two people whose destinies would collide on that ill-fated day. It would be tragic for Martha Bosscher, an elderly woman who uses a mobility scooter to get around. She had been riding on her mobility scooter at approximately 2:22 p.m. that day and had just lawfully entered a pedestrian crosswalk when she was struck by a black-coloured pickup truck that was in the act of making a right-hand turn.

It would also be a not so lucky day for the driver of that black-coloured pickup truck, who the prosecution alleges is Jordan Tavares (“the defendant”) and who now faces two charges under Ontario’s Highway Traffic Act .

And because of this inauspicious event, the defendant’s legal representative contends that if the defendant were to be convicted of these two charges, then the defendant will not be able to legally drive a motor vehicle, and as a consequence, will lose his ability to make a living to support himself and his family. [ 2 ] The intersection where the black-coloured pickup truck had struck the pedestrian is in the City of Brampton at Steeles Avenue West and Lancashire Lane, which is just south of the Shoppers World Shopping Centre and just west of Hurontario Street.

After a police investigation of that pedestrian and motor vehicle collision, the police charged Jordan Tavares for committing two offences under the Highway Traffic Act , R.S.O. 1990, c. H.8 , namely: (1) for “fail to yield to pedestrian”, contrary to s. 144(7) and (2) for “driving while under suspension”, contrary to s. 53(1) .

[ 3 ] At trial, none of the witnesses who had testified had unequivocally stated that they had actually observed the defendant, Jordan Tavares, in the driver’s seat of that black-coloured pickup truck at the moment just before or at the moment the pickup truck had struck the elderly woman riding on her mobility scooter.

However, the two civilian witnesses who did testify at the trial had stated with certainty that a specific male person had been the driver of the pickup truck, which had been based on their observations of the driver either exiting the pickup truck from the driver’s side door or standing next to the pickup truck, their interaction or conversation with that male person, and on their observations of the post-collision conduct and demeanour of that male person, especially of him removing his shirt, “freaking out”, being visibly shaken, holding his hands on his head, being nervous and apologetic, pacing, and using a cellphone to call 9-1-1 or saying that he had called 9-1-1. [ 4 ] One of the civilian witnesses, Maven Sekhon , had testified that shortly after seeing some dark shadow fall at the front of the pickup truck she had observed a male person jump out and exit from the driver’s side door of the pickup truck and go to the front of the truck, although she did not actually see who had been actually driving the pickup truck or see who the person was that had been sitting in the driver’s seat of the pickup truck when the pickup truck had struck the pedestrian in the crosswalk.

Maven Sekhon also said she had a short interaction or conversation with the person she had believed to be the driver of the pickup truck. Sekhon also described him as being a younger white male person with a beard and in his 30s and wearing black clothing and a black baseball cap.

Sekhon also said the male person had taken off his shirt, was freaking out with his hands on his head, and had said that he had called 9-1-1. [ 5 ] The other civilian witness, Joanne Power , had testified to having observed the elderly woman on the mobility scooter being struck by the black-coloured pickup truck, and then stated that the driver had exited the pickup truck after the collision, but did not testify to actually seeing the driver exit the pickup truck and had assumed the driver had done so because she had observed a male person standing next to the pickup truck shortly after the collision.

Nor did Joanne Power testify to actually seeing who was in the driver’s seat of the black-coloured pickup truck when it struck the pedestrian in the crosswalk or having seen who had been driving the pickup truck. However, Joanne Power did testify to believing that the male person who had been standing next to the pickup truck had been the driver.

In addition, Joanne Power had said she had interacted and spoke to the male person she had considered to be the driver of the pickup truck and had also testified that she had pointed out that specific male person she had identified and determined to be the driver of the pickup truck to a male police officer that was present at the scene of the collision. Power also said she had asked that male person if he had any pillows or towels in the pickup truck that could be used for the pedestrian and the male person took off his shirt and told Power to use his shirt.

In addition, Power said the male person was on his phone calling 9-1-1, visibly shaken and pacing. Power also said the male person was white and in his 30s. [ 6 ] Cst. Majd Aljanazra , who was called to attend the scene of the motor vehicle collision had testified that he had obtained the driver’s licence of a male person he had believed to be the driver of the black-coloured pickup truck. Cst. Aljanazra also said that a witness at the scene of the collision had pointed out the driver of the black-coloured pickup truck that had struck the pedestrian to him. And, as requested by Cst.

Aljanazra, the defendant, Jordan Tavares, had provided his Ontario driver’s licence to Cst. Aljanazra. Cst. Aljanazra said that the name on the driver’s licence was “Jordan Tavares”. Cst. Aljanazra also said the person pointed out to him as the driver was nervous and apologetic, but cooperative. Furthermore, Cst. Aljanazra testified that he had reasonable and probable grounds to believe Jordan Tavares had been the driver of the black-coloured pickup truck that had struck the pedestrian and had committed the offence of “fail to yield to pedestrian” before he had asked Tavares for his driver’s licence.

In addition, after making inquiries about Tavares’ driver’s licence on his police computer system, Cst. Aljanazra learned that Tavares’ driver’s licence was under suspension starting from September 12, 2019, for unpaid fines. Consequently, Cst. Aljanazra charged Jordan Tavares with committing the two Highway Traffic Act charges that are on trial. Moreover, Cst. Aljanazra testified that the person without a shirt on that he had been interacting with, which had also been captured on the videotape recording made on July 28, 2020, and entered as Exhibit #3, was the defendant, Jordan Tavares. Furthermore, Cst.

Aljanazra also said that the black-coloured pickup truck was registered in the name of Mariva Tavares, who happens to have the same surname as the defendant. [ 7 ] In their closing submissions, the defence contends that the prosecution has not proven beyond a reasonable doubt that Jordan Tavares had been the driver of the pickup truck who had struck the pedestrian, since none of the witnesses had actually observed the defendant sitting in the driver’s seat of the pickup truck that had struck the pedestrian or had observed the defendant actually driving the pickup truck at the time of the collision.

This is sometimes referred to as the “no evidence of driving” defence. Moreover, the defence also suggests, as a result, that someone else could have been driving the black-coloured pickup truck that had struck the pedestrian and not the defendant, and that the defendant could have just been a passenger in the pickup truck.

In response to the defence’s contention that the prosecution had failed to place the defendant in the driver’s seat of the pickup truck, and as such, failed to prove the identity of the driver of the pickup truck that struck the pedestrian, the prosecution submits that there had been sufficient circumstantial evidence that had been adduced by the prosecution that proves beyond a reasonable doubt that Jordan Tavares was indeed the driver of the pickup truck that had struck the pedestrian. [ 8 ] Ergo, the principal issue that has to be decided in this trial is whether the prosecution has proven beyond a reasonable doubt that the defendant had been the person who had been driving the black-coloured pickup truck that had struck the pedestrian that had been riding on a mobility scooter while the pedestrian was in the crosswalk.

Although the prosecution is relying on circumstantial evidence to prove that the defendant was indeed the driver of the pickup truck, and not on direct evidence from witnesses who had actually observed the defendant sitting in the driver’s seat of the pickup truck or driving the pickup truck, such direct evidence of the defendant being observed driving the pickup truck or sitting in the driver’s seat of the pickup truck at the time of the collision is not ultimately required by law to prove that the defendant had been the driver of the pickup truck at the material time. Rather, proof that is solely based on

circumstantial evidence could in law sustain a finding that the defendant was the driver of that pickup truck beyond a reasonable doubt. [9] On the use of circumstantial evidence, the Supreme Court of Canada in Fraser et al. v. The King, (SCC), [1936]S.C.R. 296, held at p. 310, that circumstantial evidence can be equally consistent with the innocence as well as with the guilt of theaccused. The Supreme Court also considered the use of circumstantial evidence in R. v.

Villaroman, 2016 SCC 33 , [2016] 1S.C.R. 1000, in which Cromwell J. writing for the Supreme Court at paras. 35 to 43, had explained that the issue for finding guilt that isbased on circumstantial evidence is the range of reasonable inferences that could be drawn from it. However, Cromwell J. also notedthat if there are reasonable inferences from that circumstantial evidence other than guilt, then the Crown's evidence would not meet theproof beyond the reasonable doubt standard.

Moreover, Cromwell J. explained that in assessing circumstantial evidence, inferences thatare consistent with innocence do not have to necessarily arise from or depend on proven facts, since those inferences other than guilt mayresult or be inferred from a certain gap in the evidence. However, Cromwell J. did emphasize that from the evidence and the absence ofevidence that is assessed logically and in light of human experience and common sense, those inferences other than guilt must bereasonable.

In addition, Cromwell J. held that, when assessing circumstantial evidence, the trier of fact should also consider otherplausible theories and other reasonable possibilities which are inconsistent with guilt. Accordingly, Cromwell J. reasoned that the Crownmay need to negative those reasonable possibilities, but that they do not certainly need to disprove every possible conjecture which mightbe consistent with innocence.

But more importantly, Cromwell J. held that other plausible theories or other reasonable possibilities mustbe based on logic and experience applied to the evidence or the absence of evidence, and not on speculation. [10] Furthermore, circumstantial evidence that can be relied on by a trier-of-fact as proof that a specific person is the driver of aspecific motor vehicle could include such evidence as: (1) a motor vehicle collision has occurred and a person is observed standingoutside the vehicle involved in the accident shortly after the accident or collision had occurred; (2) witnesses who appeared at the sceneimmediately following the accident or collision testified that they saw no other person in the motor vehicle or in the vicinity of the motorvehicle involved in the accident or collision other than the accused person and that the motor vehicle could not have gotten there withoutsomeone driving the vehicle; (3) injuries to the accused person from the accident or collision would be consistent with injuries that thedriver or operator of the motor vehicle that had been involved in the accident or collision would have sustained; (4) keys to the motorvehicle that had been involved in the accident or collision were found in the possession of the accused person who was at the scene ofthe accident or collision; (5) the motor vehicle that had been involved in the accident or collision is registered in the name of the accusedperson; (6) some means to identify the accused person, such as a personal object or identification, had been found in the motor vehiclethat had been involved in the accident or collision; or (7) fingerprint or DNA evidence of the accused person that had been found in themotor vehicle that had been involved in the accident or collision would show that the accused person had been in the driver’s seat orinside the motor vehicle that had been involved in the accident or collision. [11] Ergo, in respect to the defence suggestion that someone else could have been driving the black-coloured pickup truck and not thedefendant, for the reason that none of the witnesses had testified to having observed the defendant actually driving the pickup truck orsitting in the driver’s seat of the pickup truck has no logical basis and is mere speculation or conjecture.

This conclusion is inconsideration of and based on the absence of credible evidence that has been adduced at trial, that there had been another person that hadbeen observed in the pickup truck with the defendant, or that another person had been seen exiting the pickup truck besides the maleperson that Maven Sekhon had observed exit from the driver’s side door of the pickup truck, or that another person had been observed inthe company of the defendant or in the vicinity of the pickup truck after the collision had occurred.

As Cromwell J. had held in R. v.Villaroman, other plausible theories or other reasonable possibilities from circumstantial evidence must be based on logic and experiencethat is applied to the evidence or the absence of evidence, and not on speculation.

As such, the defence contention that someone elsecould have been driving the black-coloured pickup truck other than the defendant, as well as the contention that the defendant couldhave been a passenger in the pickup truck, is mere speculation or conjecture and not based on any reasonable inference that could bemade from credible evidence that has been adduced at trial or from the absence of evidence.

Furthermore, the defence contention thatsomeone else could have been driving the black-coloured pickup truck and not the defendant, as an alternative way of looking at the casedoes not on the totality of the evidence raise any reasonable doubt about the defendant being the person who drove the pickup truck thathad struck the pedestrian. [12] On the other hand, when the testimony of Maven Sekhon, Joanne Power, and Cst.

Aljanazra, are considered along with thevideotape recording entered as Exhibit #3, there is a reasonable inference that arises from the chain of connections and links in theprosecution witnesses’ testimony and observations that establishes the identity of the driver of the black-coloured pickup truck as thedefendant.

There is also a consistency among the witnesses in their description of the male person identified as the driver of the black-coloured pickup truck as someone who is white and not wearing a shirt, in his 30s, behaving nervously or freaking out, being visiblyshaken, pacing, and using his cellphone to call 9-1-1 or saying that he had called 9-1-1.

Hence, in establishing the identity of the driverof the black-coloured pickup truck, the prosecution has successfully established a chain of proof of linked observations and testimonyfrom their witnesses that are consistent and credible, and that when those circumstantial pieces of evidence are considered together, itestablishes that the only reasonable inference from that circumstantial evidence is that the defendant, Jordan Tavares, is the driver of thepickup truck that had struck the pedestrian.

This chain of circumstantial proof and the reasonable inferences that arise from thoseobservations and testimony of the prosecution’s witnesses that establishes the identity of the driver of the pickup truck are the following: (

a) The chain of proof starts with the testimony of Maven Sekhon, who had only been a few feet away from the black-coloured pickuptruck that had struck the pedestrian, when she had first observed the male person she identifies as the driver of the pickup truck, jump outand exit the black-coloured pickup truck from the driver’s side door and go to the front of the pickup truck, after Sekhon had observed a

dark shadow fall in front of the pickup truck. (

b) For the second link in the chain of proof, Sekhon had stated that this male person she had identified and determined to be the driver of the pickup truck had also been “freaking out” and holding his hands on his head and told Sekhon he had called 9-1-1 but was not sure if they heard him, which is consistent with and similar to the behaviour and demeanour observed by the other prosecution witnesses. (

c) For the third link in the chain of proof, Sekhon had asked him if anyone had called 9-1-1 and she said that the male person that she had identified as the driver had replied that he had called 9-1-1 but was not certain they had heard him, which establishes that Sekhon had been close in proximity to this male person, so as to be able to speak with him and to be able to describe his appearance and demeanour. (

d) For the fourth link in the chain of proof , Sekhon said she had observed this male person take off his shirt, which is consistent with the other prosecution witnesses’ observations and description of the post-collision conduct and behaviour of the male person that had been identified by them as the driver of the pickup truck. (

e) For the fifth link in the chain of proof, Sekhon had described the male person she identified as the driver, as being a white male with a beard and in his 30s and wearing black clothing, which is consistent and similar with the other prosecution’s witnesses’ observations of the male person that had been identified as the driver of the pickup truck.

The fact that the videotape recording entered as Exhibit #3 and the second prosecution witness Joanne Power’s description of the male person as the driver, who was not wearing a black baseball cap, is not contradictory evidence, as the male person could have easily taken off that baseball cap at some point after Sekhon had observed the male person wearing the baseball cap. (

f) For the sixth link in the chain of proof, Joanne Power had identified the driver of the black-coloured pickup truck as a male person she had observed standing next to the pickup truck shortly after Power had observed the pickup truck strike the pedestrian in the crosswalk. (

g) For the seventh link in the chain of proof, Power had described the male person she identified as the driver as being on his cellphone calling 9-1-1, visibly shaken and pacing, which is consistent with the other prosecution witnesses’ observations of the demeanour and post-collision conduct of the male person that had been identified by them as the driver of the pickup truck. (

h) For the eighth link in the chain of proof, Power also had interaction and conversation with the male person she had identified as the driver, when Power had first asked this male person if the pedestrian had been conscious and then asked if he had any blankets or towels in his pickup truck that could be used for the pedestrian, and in which the male person then took off his shirt and told Power to use his shirt. This is also consistent with Maven Sekhon’s testimony that she had observed the male person she had identified as the driver remove his shirt and the shirtless male person interacting with Cst.

Aljanazra on the videotape recording entered as Exhibit #3, which Cst. Aljanazara said is Jordan Tavares. (

i) For the ninth link in the chain of proof, Power also testified that she had pointed out this male person, who had taken off his shirt and who she had identified and determined to be the driver of the pickup truck, to a male police officer at the scene of the collision, as the driver of the black-coloured pickup truck. (

j) For the tenth link in the chain of proof, Cst. Aljanazra confirmed that a witness had pointed out to him the driver of the black- coloured pickup truck that had struck the pedestrian. (

k) For the eleventh link in the chain of proof, Cst. Aljanazra had testified that he had obtained the Ontario driver’s licence from the male person who he had believed to be the driver of the pickup truck and that had been pointed out to him by a witness, and that the name on that driver’s licence had been “Jordan Tavares”. (

l) For the twelfth link in the chain of proof, Cst. Aljanazra testified and pointed out that the male person without the shirt on that he was interacting with in the videotape recording entered as Exhibit #3, is the person he had identified as Jordan Tavares. (

m) For the thirteenth link in the chain of proof, both Maven Sekhon and Joanne Power had testified that the male person that they had

identified as the driver of the black-coloured pickup truck had not been wearing a shirt and that the male person who had been speaking with Cst. Aljanazra and that had been identified by Cst. Aljanazra as Jordan Tavares is shown not wearing a shirt on the videotape recording entered as Exhibit #3. (

n) For the fourteenth link in the chain of proof, Cst. Aljanazra said that the male person he believed was the driver of the pickup truck had been nervous and apologetic, but cooperative, which is consistent to the demeanour and post-collision behaviour that had been observed by the other prosecution witnesses. (

o) And, for the fifteenth link in the chain of proof, Cst.

Aljanazra said that the black-coloured pickup truck was registered in the name of Mariva Tavares, who happens to have the same surname as the defendant, which is more than mere coincidence and is further circumstantial evidence that substantiates the reasonable inference that the driver of the black-coloured pickup truck that had struck the pedestrian had been Jordan Tavares. [ 13 ] But more importantly, none of the witnesses who had testified in the trial had testified to having observed anyone else sitting in the black-coloured pickup truck or to having observed anyone else that had exited from the pickup truck, or to having observed that there had been anyone else standing near the black-coloured pickup truck or in the vicinity of the pickup truck or standing near or in the vicinity of the defendant, other than the male person Maven Sekhon had observed exiting the pickup truck from the driver’s side door.

Moreover, from the credible evidence of the prosecution’s witnesses, the prosecution had negatived the alternative possibility or defence theory that someone else had been driving the black-coloured pickup truck and not the defendant, which had been contended to by the defence that had been based on the evidence that none of the prosecution witnesses had observed the defendant sitting in the driver’s seat or seen actually driving the pickup truck.

Therefore, the defence contention that someone else could have been driving the black- coloured pickup truck, since none of the witnesses had observed the defendant sitting in the driver’s seat or seen actually driving the pickup truck, is not a reasonable inference that can be made from the circumstantial evidence, or absence of evidence, and is but mere speculation or conjecture. [ 14 ] Furthermore, Joanne Power had also testified to having pointed out the male person she had identified and determined to be the driver of the black-coloured pickup truck to a male police officer who had arrived at the scene of the collision and that Cst.

Aljanazra had confirmed that the driver of the pickup truck had been pointed out to him by a witness and that Cst. Aljanazra had identified that male person as “Jordan Tavares” through Tavares’ Ontario driver’s licence that Tavares had provided to him. [ 15 ] Accordingly, based on the totality of the evidence, the prosecution has proven beyond a reasonable doubt that the defendant, Jordan Tavares, had been the driver of the black-coloured pickup truck that had struck the pedestrian while she was legally in the crosswalk.

As such, since the prosecution has proven that the defendant, Jordan Tavares, was the driver of the black-coloured pickup truck that had struck the pedestrian in the crosswalk at Lancashire Lane and Steeles Avenue West on July 28, 2020, at 2:22 p.m., then the defendant is guilty of committing both offences of “fail to yield to pedestrian” and for “driving while under suspension”. [ 16 ] The trial of the two Highway Traffic Act charges was held on October 4 th and November 17, 2022. At the trial, three witnesses testified for the prosecution.

The defendant did not appear personally at the trial and had been represented by his legal representative. No witnesses had been called to testify for the defence. After closing arguments were concluded, judgment was reserved and adjourned until March 3, 2023, for judgment. These, therefore, are the written reasons for judgment: 2. THE CHARGES [ 17 ] The defendant in this proceeding has been charged under a

Part III information (#999-20-06956) sworn on September 23, 2020, with committing two offences under the Highway Traffic Act , R.S.O. 1990, c. H.8 : Jordan TAVARES (D.O.B removed for privacy] of [removed to protect privacy], ALLISTON, ON L9R 0G9 on or about the 28th day of July, 2020, at the City of Brampton in the said region [Central West Region] did commit the offence of: (1) did drive a motor vehicle on Steeles Avenue, at the intersection of Steeles Avenue and Lancashire Lane, controlled by automatic

traffic signals cause said vehicle to fail to yield the right of way to a pedestrian lawfully within an intersection, Contrary to Section 144(7) of the Highway Traffic Act .

(2) AND FURTHER THAT Jordan TAVARES, on or about the 28th day of July, 2020, at the City of Brampton in the said region [Central West Region] at approximately 2:22 p.m. did unlawfully operate a motor vehicle, licence number AK93254 on a highway, namely on Steeles Avenue at Lancashire Lane, when his driver’s licence was suspended by operation of the Highway Traffic Act Contrary Section 53(1) of the Highway Traffic Act . 3. FACTUAL BACKGROUND (

a) SUMMARY OF EVENTS [ 18 ] On the afternoon of July 28, 2020, at about 2:22 p.m., Jordan TAVARES, the defendant, had been allegedly driving a black- coloured 2003 Dodge Ram pickup truck northbound on Lancashire Lane approaching Steeles Avenue West in the City of Brampton and travelling in the right turn lane.

After coming to a stop at the stopline and for a red light, the black-coloured pickup truck had accelerated and moved forward on that red light to make the right turn onto Steeles Avenue West, when the pickup truck immediately collided with a pedestrian on an electric mobility scooter who was legally in the pedestrian crosswalk near the southeast corner of the intersection of Steeles Avenue West and Lancashire Lane. [ 19 ] Also, just before the collision, the pedestrian on the electric mobility scooter was travelling westbound in the southside pedestrian crosswalk and had just entered onto the eastside of the pedestrian crosswalk on a pedestrian light that had just turned white when the black-coloured pickup truck that was in the right turn lane and the pedestrian on the electric mobility scooter collided. [ 20 ] Furthermore, the collision had occurred on the eastside of the intersection in the eastbound lanes of Lancashire Lane, in the pedestrian crosswalk that is located on the southside of the intersection. [ 21 ] In addition, there were two independent witnesses, who testified at the trial, that were at the intersection at the time of the collision.

One witness, Joanne Power , had been driving a motor vehicle eastbound on Steeles Avenue West and had been stopped for a red light and had observed the black-coloured pickup truck accelerate from a stopped position and strike the pedestrian who was in the crosswalk and had the right-of-way.

The other witness, Maven Sekhon , had been in a motor vehicle with a work colleague that had been northbound on Lancashire Lane and had been stopped for a red light and had observed the black-coloured pickup truck pull up behind them in the right turn lane and then stop at the stopline, when Sekhon testified at trial that she had observed a dark shadow fall in front of the pickup truck and then a male person jump out and exit from the driver’s side door of the pickup truck and go to the front of the pickup truck. [ 22 ] After the collision, people at the scene immediately called the 9-1-1 operator for emergency assistance.

Shortly afterwards, Peel Regional police officers and emergency personnel arrived and attended to the pedestrian who had had been riding on the electric mobility scooter that had been struck by the black-coloured pickup truck. The pedestrian had been lying on the ground and bleeding. [ 23 ] The police also cordoned off the area and began an investigation.

The pedestrian who had been struck by the black-coloured pickup truck was then taken by ambulance to the hospital. [ 24 ] Before the pedestrian had been taken away by ambulance, Joanne Power testified at trial that she had approached the male person she had identified as the driver of the black-coloured pickup truck and had asked him if he had any pillows or towels in his pickup truck that could be used for the pedestrian who was lying on the ground and Power then said that the male person took off his shirt and had told Power to use his shirt.

Joanne Power also testified that she had pointed out the male person that she had identified and determined to be the driver of the black-coloured pickup truck to a male police officer at the scene of the collision. Cst. Majd Aljanazra

in his testimony confirmed that one of the witnesses at the scene of the collision had pointed out the driver of the black-coloured pickup truck to him. Cst. Aljanazra then obtained an Ontario driver’s licence from the male person he had believed to be the driver of the pickup truck that struck the pedestrian in the crosswalk and that had been pointed out to him and had verified that the identity of that male person was “Jordan Tavares”. After Cst. Aljanazra had interviewed witnesses, and after completing his investigation of the collision, he decided to charge Jordan Tavares, the defendant, with committing two

Part III offences: (1) the offence of “fail to yield to pedestrian”, contrary to s. 144(7) of the Highway Traffic Act and (2) “driving while under suspension”, contrary to s. 53(1) of the Highway Traffic Act . [ 25 ] A

Part III information was then sworn on September 23, 2020, and the defendant was served with a summons informing him of the charges and of the date, location, and time of his first appearance in court, which was set for the Brampton Provincial Offences Courthouse. [ 26 ] Eventually, the trial of this charge commenced on October 4, 2022. At the trial, three witnesses testified. They are, in the order that they testified:

(1) Maven Sekhon , a witness who had been in a motor vehicle northbound on Lancashire Lane that had been stopped third in line for a red light at the intersection and at the time of the collision;

(2) Joanne Power , a witness who had been driving eastbound on Steeles Avenue West and who had been stopped for a red light at the intersection, had observed the black-coloured pickup truck strike the pedestrian on the mobility scooter when her traffic light had turned green and when the pedestrian had been lawfully in the crosswalk, and who had pointed out the male person she had identified as the driver of the pickup truck to a male police officer;

(3) Cst.

Majd Aljanazra , a police officer of the Peel Regional Police, who had obtained the driver’s licence from the defendant and who had charged the defendant with the two Highway Traffic Act charges as the driver of the black-coloured 2003 Dodge Ram pickup truck that had collided with the pedestrian on an electric mobility scooter in the crosswalk. [ 27 ] On the second day of trial held on November 17, 2022, the prosecution had been permitted to introduce a videotape recording taken of the intersection at Lancashire Lane and Steeles Avenue West in the City of Brampton, which had been recorded looking in a southerly direction, and which had been entered as Exhibit #3.

The videotape recording had shown a shirtless male person speaking and interacting with Cst. Aljanazra, and was being admitted as evidence to show what the defendant physically looked like and what the male person had been wearing when interacting and speaking with Cst. Majd Aljanazra. Cst. Aljanazra had testified that the male person without a shirt on in the videotape recording was the defendant, Jordan Tavares. [ 28 ] At the onset of the trial on October 4, 2022, the defence had made a motion to adjourn the trial as the defendant was not present for the trial.

The motion was denied as civilian witnesses had appeared physically in the courthouse and virtually for the trial. After the civilian witnesses had completed their testimony and after Cst. Aljanazra had testified, the trial was adjourned to November 17, 2022, to allow the defendant to appear and testify, if the defendant had wished to testify, and also for the defence to obtain a transcript of the testimony of the witnesses on the first day of trial to assist the defendant in case he decided to testify.

On the second date of the trial on November 17, 2022, the defendant did not appear at the trial and the trial had continued with the prosecution being allowed to adduce videotape evidence of Cst. Majd Aljanazra and the defendant interacting in order to show the physical appearance of the defendant and what the defendant had been wearing at the time of his interaction with Cst. Majd Aljanazra.

The civilian witnesses also reappeared on the second day of the trial in case the defendant did appear for the second day of trial, so that the prosecution could potentially recall the civilian witnesses for an “in dock” identification of the defendant before the defence would be given an opportunity to call a defence.

However, the prosecution did not recall those civilian witnesses to testify on the second day of the trial. [ 29 ] After the prosecution had closed its case, the defence did not call any further witnesses for the trial, so that final submissions were then commenced by both the prosecution and defence. After final submissions were completed, judgment had then been reserved and adjourned to March 3, 2023, for judgment. (

b) DESCRIPTION OF THE INTERSECTION WHERE THE COLLISION OCCURRED [ 30 ] The collision between the black-coloured pickup truck and the pedestrian, who had been riding on a mobility scooter, had occurred in the southside pedestrian crosswalk that is located at the intersection of Lancashire Lane and Steeles Avenue West in the City of Brampton. This intersection is situated just south of the Shoppers World Shopping Centre and just west of Hurontario Street.

It is also described as a large and busy intersection that is controlled by automatic traffic lights. [ 31 ] At the time of the collision between the black-coloured pickup truck and the pedestrian, the traffic light at the intersection of Lancashire Lane and Steeles Avenue West was operating properly. Cst. Aljanazra had testified that he had observed several cycles of the automatic traffic light while he was present at the intersection and that it had been operating normally on July 28, 2020.

[ 32 ] Steeles Avenue West is a road that is an east- west road while Lancashire Lane is a north-south road. There are also pedestrian crosswalks marked and painted on the road surface on each side of the intersection, as well as white stop lines that are painted on the road surface for each direction of traffic. [ 33 ] When the collision had occurred with the pedestrian on the mobility scooter, the black-coloured pickup truck had been south of Steeles Avenue West and traveling northbound on Lancashire Lane.

For northbound traffic on Lancashire Lane that is on the southside of Steeles Avenue West there is one through lane for northbound traffic, a left-turn lane, and a right-turn lane. For southbound traffic on Lancashire Lane on the southside of Steeles Avenue West there are two southbound lanes, with one being a lane dedicated for left turns. Steeles Avenue West at that intersection is comprised of 3 westbound lanes and 4 eastbound lanes. For westbound traffic on Steeles Avenue West there is also a dedicated left-turn lane. (

c) WEATHER CONDITIONS AT THE TIME OF THE COLLISION. [ 34 ] For the weather conditions at the time, it had been sunny and windy. (

d) ROAD CONDITIONS AT THE TIME OF THE COLLISION. [ 35 ] The roads were dry and clear at the time of the collision. (

e) SUMMARY OF TESTIMONY [ 36 ] The following is a

summary of the testimony given by the three prosecution witnesses who testified in the trial:

(1) Maven SEKHON, a witness who had been in a motor vehicle northbound on Lancashire Lane just south of Steeles Avenue at the time of the collision between the pickup truck and the pedestrian. [ 37 ] Maven Sekhon testified in person in the courtroom. She said that she had been in a motor vehicle with her work colleague that was northbound in the center lane on Lancashire Lane and going straight through as she reached the intersection at Steeles Avenue. Sekhon also said that she was in a motor vehicle that was stopped third in line for a red light at the intersection.

Sekhon also said she had observed a black or dark coloured pickup truck drive pass her to her right in the right-turn lane and then come to a stop as the pickup truck approached the stop line, and that the pickup truck had been intending to turn right at Steeles Avenue. She further said she then saw a dark shadow fall in front of the pickup truck, at first thinking that it was the truck’s bumper. She then said that she saw a male person jump out and exit from the driver’s side door of pickup truck and go to the front of the pickup truck.

However, when her motor vehicle drove past the front of the pickup truck, she realized that the dark shadow had been a person on a scooter. Sekhon then said that she and her colleague parked their motor vehicle and then returned to help the pedestrian.

Sekhon also said that when she had asked if anyone had called 9-1-1, the male person that she had identified as the driver of the pickup truck had told Sekhon that he had called 9-1- 1, but had not been sure if anyone had heard him. [ 38 ] Furthermore, Sekhon said the male person she had observed exit from the driver’s side door of the pickup truck and who she identified and determined was the driver of the black-coloured pickup truck that had struck the pedestrian was white, a younger guy with a beard that was about in his 30s, wearing black clothing and a black baseball cap.

She also said that the male person had also been “freaking out”, holding his hands on his head, and had told Sekhon that he had called 9-1-1. Sekhon also said that she did not recall if anyone else had exited the pickup truck and also did not recall if the male person who had exited from the driver’s side door of the pickup truck had interacted with the police. Moreover, Sekhon also testified that she had observed that the male person she had identified and determined to be the driver of the pickup truck take off his shirt.

In addition, she said that she had not been able to see into the driver’s window of the pickup truck and did not observe who had been driving or sitting in the driver’s seat of the black-coloured pickup truck when it drove past her on her right.

(2) Joanne POWER, a witness who had been driving eastbound on Steeles Avenue West and stopped first in line for a red light at Lancashire Lane and had observed a black-coloured pickup truck strike a pedestrian on a scooter in the crosswalk.

[ 39 ] Joanne Power had testified in the trial by Zoom. Power had said that she had been driving eastbound on Steeles Avenue and had been stopped for a red light at the intersection where the collision occurred. She also said that when her light had turned green, she had observed a black-coloured pickup truck that had been trying to make a right turn onto Steeles Avenue West strike a pedestrian on a scooter in the crosswalk. Furthermore, she said that the pickup truck had been making a right turn to go toward Hurontario Street and that the pickup truck had a red light on his side, as Power had the green light.

Power then said that when the pickup truck had struck the pedestrian, the pedestrian had been ejected from the scooter and landed on the road. In addition, Power said that the pedestrian on the scooter had the right-of-way since the pedestrian light had turned white for the pedestrian. Power also said that the scooter had been under the pickup truck. In addition, she said that the pickup truck had stopped, but then accelerated and had struck the pedestrian instantly.

Furthermore, Power said that she had observed a male person standing next to the black-coloured pickup truck that had struck the pedestrian and using his cellphone to call 9-1-1, who she had identified and determined to be the driver of the pickup truck. In addition, Power said that she had parked her motor vehicle and then went to the area where the pedestrian had been lying on the ground and bleeding from her head.

Power then said she had asked the male person she had identified and determined to be the driver of the black-coloured pickup truck if the pedestrian was conscious and Power said the male person had responded that he did not know. [ 40 ] Furthermore, Joanne Power had said that she did not see anyone else in the black-coloured pickup truck.

When asked if she had observed the male person she had identified and determined to be the driver of the pickup truck actually exit the pickup truck once the truck had hit the pedestrian, she responded that she had observed the male person standing next to the truck and she said that had been the reason why she knew that he had exited from the truck. Power also said that she had assumed this male person standing next to the pickup truck, and on his cellphone calling 9-1-1, was the driver of the black-coloured pickup truck, and had described him as 5 feet and 8 inches tall, thin, and with short hair.

She also said that she had pointed out the male person she had identified and determined to be the driver of the pickup truck to the male police officer who was at the scene of the collision. [ 41 ] In addition, Joanne Power had testified that she had also asked the male person she had identified as the driver of the pickup truck if he had any pillows or towels in the pickup truck that could be used for the pedestrian and she said that the male person had taken off his shirt and had stated to her, “use this”.

She also said this male person who she identified as the driver of the pickup truck had been visibly shaken, on his phone calling 9-1-1, and pacing.

(3) Cst. Majd Aljanazra, a police officer from the Peel Regional Police Service, who had charged the defendant with committing the two Highway Traffic offences on July 28, 2020 [ 42 ] Cst. Majd Aljanazra had testified in person at the trial. He said he had received a call about a motor vehicle collision at Steeles Avenue and Lancashire Lane in Brampton at about 2:22 p.m. When he arrived at that intersection less than 5 minutes later, Cst. Aljanazra said he had observed a black-coloured 2003 Dodge Ram pickup truck on Lancashire Lane south of Steeles Avenue on the pedestrian crossover.

He also said he had observed a red scooter underneath the front of the truck and an elderly female, who was bleeding, on the ground in front of the truck by the scooter. In addition, Cst. Aljanazra testified that the elderly female pedestrian has since passed away, but that she had been still alive after being struck by the black-coloured pickup truck and had been taken to the hospital by ambulance. [ 43 ] In the voire dire held for determining the voluntariness of utterances and statements made by the defendant to Cst. Aljanazra, Cst.

Aljanazra had said that a witness had pointed out a male person to him as the driver of the black-coloured pickup truck that had struck the pedestrian. In addition, Cst. Aljanazra said that the driver of the pickup truck was a young white male and that he had been cooperative, but had seemed nervous. Cst. Aljanazra also said the male person had been apologetic to him. Furthermore, Cst. Aljanazra said he had been with that male person for over an hour. Cst.

Aljanazra further said that he had believed that this male person was the driver of the black-coloured pickup truck and had asked the male person for his identification. More importantly, Cst. Aljanazra said he did not provide a caution to the male person even though Cst. Aljanazra had said that he had reasonable and probable grounds to believe that an offence had been committed by the male person before he started speaking with the male person. However, the prosecution submitted that they would not rely on any utterances or statements that the defendant had made to Cst. Aljanazra. [ 44 ] Moreover, Cst.

Aljanazra said that the male person who he had believed was the driver of the black-coloured pickup truck had identified himself with an Ontario driver’s licence in the name of “Jordan Tavares” with a date of birth of [removed for privacy] and with an address in Alliston, Ontario. Cst. Aljanazra further said that the photograph on the driver’s licence had matched the likeness of the male person he was speaking to. Moreover, Cst. Aljanazra said that he did not observe anyone else with Jordan Tavares or anyone else in the black-coloured pickup truck. Cst.

Aljanazra also said that the black-coloured pickup truck was registered in the name of Mariva Tavares.

(4) The videotape recording entered as Exhibit #3

[ 45 ] The videotape recording that had been recorded on July 28, 2020, that covered the time around 2:20 p.m. and entered as Exhibit #3 had been obtained from a video camera from a business nearby to the intersection of Lancashire Lane and Steeles Avenue and shows Cst. Aljanazra interacting with a shirtless and white male person in the intersection near the black-coloured pickup truck. Cst. Aljanazra had testified that the male person without a shirt on, who he had been interacting with on the videotape recording, was the defendant, Jordan Tavares.

The video also shows that it was sunny and very windy at the time that Cst. Aljanazra had been interacting with the defendant, Jordan Tavares. The videotape recording of Cst. Aljanazra interacting with the defendant was adduced by the prosecution to corroborate the description of the driver of the black-coloured pickup truck that had struck the pedestrian, which had been attested to by both Maven Sekhon and Joanne Power. 4. APPLICABLE LAW [ 46 ] The offence of “fail to yield to pedestrian” is contrary to s. 144(7) of the Highway Traffic Act , R.S.O. 1990, c.

H.8 , which provides that when a driver is permitted to proceed, the driver shall yield the right of way to pedestrians lawfully within a crosswalk [ emphasis is mine below ]: Yielding to pedestrians 144(7) When under this

section a driver is permitted to proceed, the driver shall yield the right of way to pedestrians lawfully within a crosswalk. [ 47 ] In addition, the following

definitions contained in s. 1(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8 , are relevant to this proceeding: 1(1) In this Act, … “crosswalk” means, (

a) that part of a highway at an intersection that is included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the roadway, or (

b) any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface; … “highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof; … “intersection” means the area embraced within the prolongation or connection of the lateral curb lines or, if none, then of the lateral boundary lines of two or more highways that join one another at an angle, whether or not one highway crosses the other; … “pedestrian crossover” means any portion of a roadway, designated by by-law of a municipality, at an intersection or elsewhere, distinctly indicated for pedestrian crossing by signs on the highway and lines or other markings on the surface of the roadway as prescribed by the regulations; … “roadway” means the part of the highway that is improved, designed or ordinarily used for vehicular traffic, but does not include the shoulder, and, where a highway includes two or more separate roadways, the term “roadway” refers to any one roadway separately and not to all of the roadways collectively;

[ 48 ] Furthermore, the term, “intersection”, for the purposes of offences set out in s. 144 of the Highway Traffic Act is also defined in s. 144(1) , which states that where there is a pedestrian crosswalk indicated by markings on the roadway then the pedestrian crosswalk forms part of the intersection: Traffic control signals and pedestrian control signals 144(1) In this section, … “intersection” includes any portion of a highway indicated by markings on the surface of the roadway as a crossing place for pedestrians; (“intersection”) [ 49 ] In addition, under s. 144(18) of the Highway Traffic Act , motorists are legally required to stop for a red traffic light and not to proceed unless they have a green light: Red light 144(18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown. [ 50 ] Also, not only are motorists who approach an automatic traffic light showing a red light are legally required to stop, but they must do so at or before a specific location.

The specific locations where the motorist must stop is set out in s. 144(5) of the Highway Traffic Act , R.S.O. 1990, c. H.8 : Where to stop – intersection 144

(5) A driver who is directed by a traffic control signal erected at an intersection to stop his or her vehicle shall stop, (

a) at the sign or roadway marking indicating where the stop is to be made; (

b) if there is no sign or marking, immediately before entering the nearest crosswalk; or (

c) if there is no sign, marking or crosswalk, immediately before entering the intersection. [ 51 ] The Highway Traffic Act also provides under s. 144(19) (

a) an exception to the legal requirement for motorists to stop for a red traffic light and not to proceed unless they have a green light when the motorist is making a right turn. However, the motorist must stop their vehicle first and yield the right of way to traffic lawfully approaching so closely that to proceed would constitute an immediate hazard [ emphasis is mine below ]: Exception — turn 144(19) Despite subsection (18) and subject to subsection (14), a driver, after stopping his or her vehicle and yielding the right of way to traffic lawfully approaching so closely that to proceed would constitute an immediate hazard, may , (

a) turn to the right ; or

(

b) turn to the left from a one-way street into a one-way street, without a green indication being shown. [ 52 ] In addition, s. 144(28) of the Highway Traffic Act provides that pedestrians who have lawfully entered a roadway in order to cross the roadway have the right of way over vehicles: Pedestrian right of way 144(28) Every pedestrian who lawfully enters a roadway in order to cross may continue the crossing as quickly as reasonably possible despite a change in the indication he or she is facing and, for purposes of the crossing, has the right of way over vehicles. [ 53 ] Moreover, at an intersection controlled by a traffic light and where pedestrian control signals are installed, a pedestrian under s. 144(26) of the Highway Traffic Act is permitted to lawfully enter a roadway to cross the roadway when the pedestrian control signal shows a “walk” indication: Pedestrian control signals — walk 144(26) Where pedestrian control signals are installed and show a “walk” indication, every pedestrian facing the indication may cross the roadway in the direction of the indication despite subsections (24) and (25). [ 54 ] Furthermore, under s. 144.1(1) of the Highway Traffic Act , upon conviction for a first offence, the penalty for contravening s. 144(7) (“fail to yield to pedestrian”) is a fine of not less than $300 and not more than $1,000, and for each subsequent offence, to a fine of not less than $500 and not more than $1,000: Penalty for certain offences 144.1(1) Every person convicted of an offence under subsection 140(1), 140(3), 144(7) or 176 (3) is liable, (

a) for a first offence, to a fine of not less than $300 and not more than $1,000; and (

b) for each subsequent offence, to a fine of not less than $500 and not more than $1,000. Same

(2) An offence referred to in subsection (1) committed more than five years after a previous conviction for an offence referred to in that subsection is not a subsequent offence for the purposes of subsection (1). [ 55 ] In addition, the offence of “driving while under suspension” is contrary to s. 53(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8 , which provides that every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under

an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable for a first offence, to a fine of not less than $1,000 and not more than $5,000, and for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000 or to imprisonment for a term of not more than six months, or to both. In addition, under s. 53(3) , the driver’s licence of a person who is convicted of an offence under s. 53(1) or s. 53(1.1) is thereupon suspended for a period of six months in addition to any other period for which the licence is suspended, and consecutively thereto [ emphasis is mine below ]:

Service of notice of licence suspension 52(1) Where a person’s driver’s licence is suspended, notice of the suspension is sufficiently given if delivered personally or, (

a) in the case of a suspension under

section 41 or 42, sent by registered mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry; (

b) in the case of all other suspensions, sent by mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry. Deemed date of service

(2) Notice sent by registered mail under clause (1) (

a) or by mail under clause (1) (

b) shall be deemed to have been given on the seventh day after the mailing unless the person to whom the notice is sent establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice. Regulations

(3) The Lieutenant Governor in Council may make regulations, (

a) prescribing other methods of service that may be used in the case of a suspension described in clause (1) (

a) or a suspension described in clause (1) (

b) and prescribing the day on which the notice sent or delivered by such other means shall be deemed to have been given; (

b) prescribing means of proving that a notice was given by a method permitted by subsection (1) or by a method permitted by regulation. Driving while driver’s licence suspended 53(1) Every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under

an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable , (

a) for a first offence, to a fine of not less than $1,000 and not more than $5,000 ; and (

b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000 , or to imprisonment for a term of not more than six months, or to both . Same

(1.1) Despite subsection (1), every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under

section 41 or 42 , even if it is under suspension at the same time for any other reason, is guilty of an offence and on

conviction is liable, (

a) for a first offence, to a fine of not less than $5,000 and not more than $25,000; and (

b) for each subsequent offence, to a fine of not less than $10,000 and not more than $50,000, or to imprisonment for a term of not more than six months, or to both. Subsequent offence

(2) Where a person who has previously been convicted of an offence under subsection (1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1) (b). Same

(2.1) Where a person who has previously been convicted of an offence under subsection (1.1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1.1) (b). Licence suspended

(3) The driver’s licence of a person who is convicted of an offence under subsection (1) or (1.1) is thereupon suspended for a period of six months in addition to any other period for which the licence is suspended, and consecutively thereto. 5. ISSUES [ 56 ] The following issues have arisen f or the determination of whether the prosecution has proven beyond a reasonable doubt that the defendant had committed the two offences of “fail to yield to pedestrian” and “driving while under suspension”: (

a) On the circumstantial evidence adduced at trial, has the prosecution proven beyond a reasonable doubt that the defendant, Jordan Tavares, was the driver of the black-coloured pickup truck that had struck the woman on a mobility scooter in a pedestrian crosswalk? (

b) Does the prosecution have the onus to prove that the defendant had actually received the suspension notice from the Ministry of Transportation beyond a reasonable doubt in order to prove the offence of drive under suspension under s. 53(1) of the Highway Traffic Act ? 6. ANALYSIS

[ 57 ] The defendant has been charged for committing two Highway Traffic Act offences. The offences are (1) “fail to yield to pedestrian”, contrary to s. 144(7) and (2) for “driving while under suspension”, contrary to s. 53(1) . Both offences are strict liability offences in which the prosecution only has the legal burden to prove that the defendant has committed the actus reus of both offences beyond a reasonable doubt. It does not have to prove any mens rea or fault element in respect to the defendant.

If the prosecution proves that the defendant committed the actus reus of both offences beyond a reasonable doubt, then to avoid being convicted of the two offences, the defendant has the legal burden to prove on a balance of probabilities the defence of due diligence by establishing that he took all reasonable care in the circumstances to avoid committing the two offences or that he had an honest but mistaken belief in facts which, if true, would render the act innocent. [ 58 ] In the case at bar, a pedestrian that was riding on a mobility scooter had been struck by a black-coloured pickup truck on July 28, 2020, at approximately 2:22 p.m.

The weather had been sunny and windy and the roads were dry at the time of the collision. The pedestrian crosswalk is located on the southside of the intersection of Steeles Avenue West and Lancashire Lane in the City of Brampton. Steeles Avenue West is an east-west highway while Lancashire Lane is a north-south highway located in the City of Brampton. The intersection is controlled by an automated traffic light.

The black-coloured pickup truck was northbound on Lancashire Lane and had come to a stop at the stopline and had been in the process of making a right turn onto Steeles Avenue West in order to go eastbound towards Hurontario Street when it struck the pedestrian in the crosswalk. [ 59 ] The prosecution contends that the driver of the black-coloured pickup truck is the defendant while the defence contends that the prosecution has failed to prove that the defendant was the driver, since none of the witnesses had observed the defendant sitting in the driver’s seat or that the defendant had been observed by them actually driving the black-coloured pickup truck that had struck the pedestrian. [ 60 ] Ergo, the principal issue that has to be decided is whether the prosecution has proven beyond a reasonable doubt that the defendant was the driver of the black-coloured pickup truck that had struck the pedestrian.

To make this determination, the “fail to yield to pedestrian” charge will be analyzed first. If the prosecution proves that the defendant was the driver beyond a reasonable doubt, then the defendant will be guilty of that offence. And, if the defendant was the driver of the pickup truck, then the second charge of “driving while under suspension” will be analyzed to determine if the defendant has committed that offence.

However, if the prosecution fails to prove that the defendant was the driver of the black-coloured pickup truck beyond a reasonable doubt then the defendant will be acquitted of both of the Highway Traffic Act charges. (

A) What colour was the traffic light for northbound traffic on Lancashire Lane when the pedestrian had been struck by the black-coloured pickup truck? [ 61 ] Maven Sekhon had testified that she had been in a motor vehicle with her work colleague that had been going down Lancashire Lane toward the Shoppers World plaza and that they were stopped for a red light and waiting for the traffic light to turn green when a black-coloured pickup truck had pulled up behind them and then entered the right lane.

Sekhon then said that the pickup truck had stopped to turn right and then she said that she had observed a dark shadow fall in front of the pickup truck, assuming that it was the bumper of the pickup truck.

She then said that when her traffic light had turned green she had wondered why the two cars in front of her were not moving and that when she and her colleague had started to edge up, she said she could see that it was not the bumper that fell but a person she saw lying on the ground and a scooter that was partly under the pickup truck ( see lines 22 to 32 on p. 4, lines 1 to 10 on p. 5, lines 17 to 32 on p. 7, and lines 1 to 14 on p. 8 in the October 4, 2022 Transcript of Proceedings at Trial ) [ emphasis is mine below ]: Prosecutor: I just - please tell the court what happened on that date that brings you to court today.

Maven Sekhon: So, on that day my friend Sabrina and I, we work at the Real Canadian Superstore, and we were going on break. We were going down Lancashire into the Shoppers World Plaza . The - we're parked at the stop light, like waiting for it to turn green and like a truck pulled up behind us and like entered the right lane . We were in the centre lane. And, sorry. He, like he stopped to turn right , and the truck was like a lot higher up than our car was, so we saw like a dark shadow fall sort of in front of the truck .

And we just assumed that his bumper came off because of like, he was like edging forward to like turn right onto Steeles . And, when the light turned green, we were wondering why the two cars in front of us were not moving . But when they finally started to edge up, we looked to see like what was going on to see if it was his bumper that had fallen off. We saw someone on the ground. There was like an electric scooter that was like partly under the truck, is what we realized was the shadow that we saw fall . It wasn't his bumper .

And then, we rushed to go park the car at Shoppers World and we ran back to go see how we could help. … Prosecutor: And you indicated - thank you - sorry Your Worship. Ms. Sekhon, you indicated the light was green - sorry, Had it just the light was red.

Maven Sekhon: Mm-hmm. Prosecutor: Had it just turned red for you or was it red when you approached the intersection ? Maven Sekhon: It was red when we approached 'cause the first two cars were already stopped . Prosecutor: And while you were stopped, did you see the truck now approach to your right? Maven Sekhon: Yeah. Prosecutor: And what did the truck do as it approached to your right? Maven Sekhon: It just, it drove up and then it stopped when like it got to like the line . Prosecutor: When you say it stopped when it got - at the line, what do you mean by that?

Did it, so you indicated that you saw a dark figure ... Maven Sekhon: Mm-hmm. Prosecutor: ... fall over in front of the truck? Maven Sekhon: Mm-hmm. Prosecutor: Did the truck stop before that or did the truck stop once this dark figure fell in front of it ? Maven Sekhon: I don't remember . Prosecutor: How far behind were you from this truck? Maven Sekhon: Kind of closer to like the back half of the truck, like where the trunk, the loading

part is. Prosecutor: How many cars length would you say? Maven Sekhon: One. Like, we were like towards the second half of the truck. [ 62 ] In addition, Joanne Power had testified that she had been stopped for a red light facing eastbound on Steeles Avenue. She said that when her light turned green, she had observed the black-coloured pickup truck accelerate from a stopped position trying to make a right turn and then strike the pedestrian in the crosswalk. In addition, Power said the driver of the pickup truck had a red light on his

side while she had the green light when the pedestrian was struck in the crosswalk ( see lines 19 to 32 on p. 14, lines 1 to 33 on p. 15, and lines 1 to 2 on p. 16 in the October 4, 2022 Transcript of Proceedings at Trial ) [ emphasis is mine below ]: Joanne Power: I was driving home from work. I was driving east on Steeles going towards Hurontario. I was stopped at the light by the Supercentre and there was a vehicle that when my light turned green, the vehicle tried to make the right turn and he struck a pedestrian in the, in the crosswalk .

Prosecutor: When you say you were stopped at the light by the Supercentre ... Joanne Power: Yeah. Prosecutor: ... which intersection was that, do you recall? Joanne Power: I'm not sure what the name of the street it, but super world is on, Shoppers World is on the left side and then there's a big Supercentre on the right side and it's just before you hit Hurontario. Prosecutor: Sorry, you said there is a Shoppers World on the left side and a Supercenter on the right? Joanne Power: Correct. Prosecutor: And this is at the intersection that you were stopped? Joanne Power: Correct. Prosecutor: And which, which city?

Joanne Power: In Brampton. Prosecutor: Do you recall the time? Joanne Power: I think it was around 2:45, between 2:45 and 3:00. Prosecutor: So you observed the, you said a vehicle tried to make a right turn and struck a pedestrian . What type of vehicle was this ? Joanne Power: It was a big black pickup , but the pickup was, it was high. It was higher up, and the pedestrian was in a, on a scooter and I don't think he saw her and he, he continued to go. Prosecutor: When you say he continued to go, what do you mean by that?

Joanne Power: He proceeded to make the right-hand turn while the pedestrian was trying to cross, and he hit her .

Prosecutor: You indicated that the light, what colour, what light - what was the colour of the light for you at this point? Joanne Power: It had just turned green . Prosecutor: The light had just turned green and then you observed this truck strike the pedestrian, the scooter? Joanne Power: Right. So, I, my light turned green. I was just starting to proceed, and the gentleman made the, like tried to scoot out in front of me, made the right-hand turn and he hit the pedestrian . Prosecutor: This gentleman, where was he exactly in relation to you?

Joanne Power: I was, I was proceeding east on Steeles, and he was attempting to go to make the right hand-turn to go towards Hurontario . So, he was, he was at the red light on his side . [ 63 ] Accordingly, based on the observations and credible testimony of Joanne Power and Maven Sekhon, the traffic light for northbound traffic on Lancashire Lane had been indicating “red” when the black-coloured pickup truck, in attempting to make a right turn onto Steeles Avenue, had struck the female pedestrian riding on the mobility scooter when she had been in the pedestrian crosswalk. (

B) Before the truck had accelerated and instantly struck the pedestrian who was in the crosswalk, the black-coloured pickup truck had come to a stop at the stop line [ 64 ] Both Joanne Power and Maven Sekhon had testified to having observed the black pickup coming to a stop before it proceeded forward. Maven Sekhon had said that the black-coloured pickup truck had stopped at the stop line as the pickup truck had passed on Sekhon’s right ( see lines 28 to 31 on p. 7 in the October 4, 2022 Transcript of Proceedings at Trial ).

In addition, Joanne Power had testified that when her traffic light had turned green, she had observed the black-pickup truck accelerate from a stopped position and instantly strike the pedestrian ( see lines 9 to 14 on p. 17 in the October 4, 2022 Transcript of Proceedings at Trial ) [ emphasis is mine below ]: Prosecutor: And what did the truck do as it approached to your right? Maven Sekhon: It just, it drove up and then it stopped when like it got to like the line . … Prosecutor: Do you recall how fast this vehicle, this big, black pick-up truck, how fast it was traveling?

Joanne Power: Well, it was at a stop so whatever he accelerated at, he, like he hit her instantly as soon as he accelerated. So he, he wouldn't've been - I'm, I'm not sure what speed he was doing. (

C) Was the pedestrian lawfully in the pedestrian crosswalk when she was struck by the black pickup truck? [ 65 ] The pedestrian who was riding on the mobility scooter was legally in the pedestrian crosswalk when the black-coloured pickup

truck had struck the pedestrian in the crosswalk.

This is based on Joanne Power’s credible and unchallenged testimony in which she had stated that when her traffic light had turned green she had observed the black-pickup truck accelerate from a stopped position and instantly hit the pedestrian in the crosswalk and had ejected the pedestrian from the mobility scooter, and that the pedestrian had the right-of-way because Power had observed that the pedestrian light had turned white for the pedestrian and that the driver of the black- coloured pickup truck had a red light ( see lines 11 to 32 on p. 15, lines 1 to 2 on p. 16, and lines 4 to 8 on p. 17 in October 4, 2022 Transcript of Proceedings at Trial ) [ emphasis is mine below ]: Prosecutor: So you observed the, you said a vehicle tried to make a right turn and struck a pedestrian .

What type of vehicle was this ? Joanne Power: It was a big black pickup , but the pickup was, it was high. It was higher up, and the pedestrian was in a, on a scooter and I don't think he saw her and he, he continued to go. Prosecutor: When you say he continued to go, what do you mean by that? Joanne Power: He proceeded to make the right-hand turn while the pedestrian was trying to cross, and he hit her . Prosecutor: You indicated that the light, what colour, what light - what was the colour of the light for you at this point? Joanne Power: It had just turned green .

Prosecutor: The light had just turned green and then you observed this truck strike the pedestrian, the scooter? Joanne Power: Right. So, I, my light turned green. I was just starting to proceed, and the gentleman made the, like tried to scoot out in front of me, made the right-hand turn and he hit the pedestrian . Prosecutor: This gentleman, where was he exactly in relation to you? Joanne Power: I was, I was proceeding east on Steeles, and he was attempting to go to make the right hand-turn to go towards Hurontario . So, he was, he was at the red light on his side . … Prosecutor: And Ms.

Power, did you by any chance observe the crosswalk signal for this pedestrian ? Joanne Power: Yes. So, when my light turned green, and I proceeded, the pedestrian's walk sign had turned white.

So, she had the right of way to go across the road. [ 66 ] And, even though s. 144(19) of the Highway Traffic Act permits motorists to make a right turn on a red light, as long as their vehicle has come to a stop at the stop line and not to proceed unless it was safe to do so, the black-coloured pickup truck did come to a stop at the stop line before making the right turn, but as soon as the pickup truck had accelerated it had immediately struck the pedestrian on the mobility scooter in the crosswalk. (

D) In which direction had the pedestrian been travelling on her mobility scooter in the crosswalk? [ 67 ] Joanne Power testified that when her traffic light had turned green for eastbound traffic on Steeles Avenue she had observed the

black-coloured pickup truck accelerate from a stopped position and then immediately strike the pedestrian on the mobility scooter in the crosswalk, who Power said had the right-of-way when the pedestrian had entered the crosswalk because the pedestrian light had just turned white. [ 68 ] Cst. Aljanazra testified that he had observed that the mobility scooter that was on the ground in the pedestrian crosswalk had been facing west. Cst.

Aljanazra also diagrammed on the Google map entered as Exhibit #2 that the black-coloured pickup truck and the pedestrian scooter were on the eastern side of the southside pedestrian crosswalk of the intersection near the southeast corner of the intersection. [ 69 ] Ergo, the position of the scooter facing west and the testimony of Joanne Power that the pedestrian had just entered the crosswalk when the pedestrian light had turned white and the indication by Cst.

Aljanazra that the collision occurred at the eastern part of the pedestrian crosswalk on the southside pedestrian crosswalk of the intersection would indicate that the pedestrian was travelling from the east side of Lancashire Lane towards the west side of Lancashire Lane in a westerly direction. (

E) The black pickup truck had immediately stopped after it had struck the pedestrian and the pickup truck had remained in the same position until the police arrived [ 70 ] The videotape recording entered as Exhibit #3 shows the black-coloured pickup truck still situated in the same location as the witnesses had described. The mobility scooter is also visible in the crosswalk at the front of the pickup truck. (

F) After the black pickup truck had struck the pedestrian, Maven Sekhon, had observed that a male person had jumped out

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