York (Regional Municipality) v. Clarke, 2011 ONCJ 272

COURT FILE No.: Citation: York (Regional Municipality) v. Clarke , 2011 ONCJ 272 ONTARIO COURT OF JUSTICE BETWEEN: THE REGIONAL MUNICIPALITY OF YORK — AND — JILLIAN CLARKE Before Justice of the Peace R. S. Shousterman Heard on August 11, 2010 and February 22, 2011 Reasons for Judgment released on May 18, 2011 L. Angus ............................................................................................................................ Prosecutor R. Clarke ................................................................................................... Agent for the Defendant JUSTICE OF THE PEACE R. S.

SHOUSTERMAN: Introduction On August 16, 2009, Jillian Clarke, a full time student, was charged with the offence of “change lane not in safety” contrary to s. 142 (1) of the Highway Traffic Act , R.S.O. 1990, s. H.8, as amended. The trial opened August 11, 2010 and was completed on February 22, 2011. Three witnesses testified at trial: Micheline Lafond, Officer Pilested and Jillian Clarke. These are my reasons for judgment. Evidence of Micheline Lafond Late Sunday morning on August 16, 2009, was beautiful. The roads were not crowded and the weather was clear.

At approximately noon Micheline Lafond was driving home from the Town Park at Mosley Street and Wells Street in Aurora. Her son was in the back of her Honda Civic (the “Civic”). The drive was relaxed and leisurely. Ms. Lafond testified that she made a right hand turn onto Yonge Street from Mosley. As she drove north on Yonge Street, at a rate of speed in the range of 40 – 60 km/hr, she moved into the left hand lane closest to the centre of the roadway. Ms. Lafond testified that the collision occurred approximately 15 feet north of Aurora Heights Drive, Aurora.

She described that portion of Yonge Street and Aurora Heights Drive in Aurora as being a four lane road, with two lanes heading northbound and two lanes heading southbound. In later testimony she acknowledged that there was a separate left hand turning lane for southbound traffic at the intersection of Aurora Heights Drive. Ms. Lafond testified that she first noticed the yellow Chevrolet Blazer (the “Blazer”) when it made a right hand turn onto Yonge Street. The Blazer turned into the right hand turn lane and was two car lengths in front of her. The Blazer and Civic were travelling at about the same speed. Ms.

Lafond testified that the defendant subsequently put her left indicator light on and moved into the left lane. She exclaimed “you have to be kidding me”. She testified that she turned the Civic slightly to the left into the southbound left turn lane so as to move out of the way of the Blazer. Ms. Lafond slammed on her brakes. Notwithstanding her attempt to avoid a collision, the Blazer hit the Civic on the right hand passenger side. Her ABS brakes engaged. The Civic’s air bags did not deploy. Ms. Lafond testified that the Civic ended up a little over the centre line, in the south bound lane.

She testified that the Blazer ended up in the left lane. Ms. Lafond testified that she put her flashers on, exited the Civic and went around the car to check on her son who was in the back seat. She testified that the driver of the Blazer exited her motor vehicle and asked Ms. Lafond if she was all right. Ms. Lafond testified that she told the defendant she was worried about her son. The defendant asked what happened. According to Ms. Lafond the defendant stated that she checked her blind spot and no one was there. Ms. Lafond testified that she stated “obviously I was”. Based on the tenor of their discussion, Ms.

Lafond decided not to engage in further conversation with the defendant. Ms. Lafond testified that she called 911 and she was directed to move the Civic to the south west corner of Aurora Heights, into the Shoppers Drug Mart Plaza. She conveyed that information to the defendant and both parties moved their motor vehicles into the plaza. Ms. Lafond testified that the Civic sustained damage to the front passenger side, the headlight, and the panel on the right hand side above the front wheel well.

She testified that the damage to the Blazer consisted of scratches on the driver’s side back wheel well close to the back bumper. When shown a photograph of a yellow Chevrolet Blazer ZR2, Ms. Lafond was able to point to the damage on the Blazer as being below the insignia or logo that appears almost over the driver’s side back wheel well. Ms. Lafond testified that there was no yellow paint transfer from the Blazer to the Civic because the Blazer is higher in height than the Civic. Here the transfer consisted of black markings from the large rear bumper that wraps around the back sides of the Blazer. Ms.

Lafond testified that both motor vehicles were able to be driven to and both were driven to the Shoppers Drug Mart Plaza. Ms. Lafond testified that after both motor vehicles parked in the Shoppers Drug Mart Plaza, the parties engaged in another conversation. Ms. Lafond testified that the defendant told her that her father was a paralegal and knows about accidents and that this was not her fault. Ms. Lafond testified that there was a passenger in the Blazer. The passenger exited the Blazer and said “sorry about that” prior to leaving the scene.

This passenger was identified during the trial as the sister of the defendant. She was not called as a witness and the court draws no conclusion from the defence’s decision not to have her testify. Ms. Lafond testified that after she moved the Civic she telephoned her mother. She testified that her mother arrived and took care of her son when she spoke with the police officer who arrived approximately fifteen minutes later.

Ms. Lafond testified that the officer spoke with her and the defendant. On cross-examination Ms. Lafond testified that she thought the officer spoke with the defendant first. The officer took a statement from her and the defendant. The officer asked Ms. Lafond to produce her insurance and driver’s licence, which she did. Ms. Lafond testified that her mother spoke to the defendant. Ms. Lafond’s mother did not testify. She was not a witness to the incident. The defendant did not testify with respect to any conversation she had with Ms. Lafond’s mother.

As such I mention the conversation for the sake of the narrative only. Ms. Lafond testified that after the police officer told her she could leave, she spoke with her mother and they went into the Shoppers Drug Mart and subsequently returned home. Ms. Lafond testified that she telephoned her insurance company when she got home. She testified that she took photographs of the Civic in her driveway later that day. Those photographs were marked as Exhibits 1 – 3 in this trial. Ms. Lafond testified that after the accident she made some notes on an envelope.

She wrote down the licence plate number of the Blazer driven by the defendant. She wrote down the defendant’s insurance information, including but not limited to the name of her insurer being Chieftain Insurance and the policy number, as well as the model number of the Blazer being ZR2. Ms. Lafond wrote down the defendant’s name as well as her address. She identified the defendant in court. Ms. Lafond admitted that she made alterations to the notes as she transcribed them. The majority of the alterations done in ink were apparent on the face of the document as two shades of ink were used: black and blue.

Some of the alterations were significant in that there were specific additions to the notes which were based upon information received considerably after the accident. Other alterations are, in my opinion, less significant. For example, one of the alterations that I view as less significant was the addition of the word “Chevy” to the word “Blazer”; in other words to add the car manufacturer’s name to that of the model. Such a change does not, in my opinion, add to or detract from the testimony. Further, it was never disputed that the defendant was driving a Chevrolet Blazer. There was no dispute that Ms.

Lafond had an independent recollection of the events. Her notes were used solely to refresh her memory. The addition of the word “Chevy” to her notes simply completed the description of the motor vehicle driven by the defendant. The Evidence of Officer Pilested Officer Pilested testified he is a police officer with the York Region Police. He said he was the officer who investigated the matter and charged the defendant with the offence before the court. Officer Pilested did not witness the collision.

He testified that he received a radio call to respond to an accident that occurred at Yonge Street and Aurora Heights Drive, in Aurora. He testified that the radio call indicated that the motor vehicles were waiting for him in the Shoppers Drug Mart parking lot. Officer Pilested identified the motor vehicles as being a silver Honda Civic driven by Ms. Lafond and a yellow Chevrolet Blazer driven by the defendant. Officer Pilested was shown Exhibit 4, being the Google search of a Chevrolet Blazer ZR2 with photographs from Motortopia.

He identified the Blazer depicted in Exhibit 4 as being a reasonable replication of the Blazer involved in the collision subject to the qualification that the Blazer involved in the collision was of a 2003 model year. Officer Pilested testified that he viewed both motor vehicles. He described the damage to the Civic as consisting of damage to the front passenger side corner, panel and bumper. In his opinion, the damage to the Civic indicated an impact from the side.

He described the damage to the Blazer as consisting of scratches on the rear tire, rear bumper and rear driver’s side which, in his opinion, were also consistent with a side impact. Officer Pilested testified that there was no damage to the rear of the Blazer. He testified that the damage to the Blazer was consistent with the height of the Civic. Officer Pilested was shown Exhibit 3, consisting of two photographs of the Civic, the first showing damage under the bumper toward the wheel well and the second showing the displacement of the headlight.

Officer Pilested testified that the photographs were consistent with the damage to the Civic that he had seen on the date in question.

Officer Pilested testified that he could not see any debris on the roadway. Officer Pilested testified that he had discussions with Ms. Lafond and the defendant. He testified that he did not believe the story told to him by the defendant, namely, that she was rear ended as the damage to the Blazer did not corroborate her statement. As a result he charged the defendant with change lane not in safety contrary to s. 142(1) of the Highway Traffic Act , supra . Evidence of Jillian Clarke Ms. Clarke testified that she is a full time student.

She testified that on the date in question she was operating the Blazer which is owned by her parents. She admitted that she drives the Blazer every so often, but not on a regular basis. Ms. Clarke testified that she was returning home from a friend’s house in Scarborough. She was unable to answer when she left her friend’s home. The defendant testified that her sister was with her and that they were talking. The windows of the Blazer were closed. Ms. Clarke testified that she took Yonge Street north bound; she was unable to advise the court where she entered Yonge Street.

On cross-examination the defendant estimated that she had been travelling on Yonge Street northbound for approximately thirty to forty five minutes prior to the incident occurring. The defendant testified that she drove in the left lane most of the way north. She testified that she moved into the left lane before Wellington Street in Aurora as there were cars parked on the right side of Yonge and she noticed the Blazer needed gas. She testified that her intention was to go to the Petro Canada station and use her father’s credit card to fill up the Blazer as she then intended to go to Huntsville later that day.

The defendant testified that as she approached the intersection at Aurora Heights Drive and Yonge Street she noticed that the traffic light was green. She thought that the traffic light was going to change because the little man for the pedestrian light was blinking. She testified that she went through the green light, checked her blind spot, turned on her left indicator signal, moved into the left lane, came to a stop and was hit from behind about two seconds later. On cross-examination she testified she looked in her mirror. She testified that she saw the Civic hit her from her mirror.

She testified that the Civic went underneath the Blazer. The defendant testified that she did not turn into the Petro Canada station because there was oncoming traffic going southbound on Yonge Street. Ms. Clarke later testified that the northbound curb lane was free of motor vehicles as was the left southbound lane. She subsequently testified that the traffic light was amber before she was hit.

The defendant testified that after the collision the wheels of the Blazer were slightly turned into the southbound left hand lane and the back of the Blazer was straight such that the rear of the Blazer was face on to northbound traffic and to any motor vehicles behind her. The defendant testified that after the collision she exited the Blazer and asked Ms. Lafond if she was all right. She stated that both women were flustered. Ms. Lafond ran to get her son. They had a brief conversation and Ms. Lafond telephoned the police.

The defendant testified that she took photographs with her cellphone but was unable to produce any at trial as she had replaced her cellphone sometime after the accident. When asked on cross-examination why she did not show any of the photographs to Officer Pilested, Ms. Clarke testified that she did not think about it as she was in a “frazzled state”. When asked why she did not print any of the photographs prior to losing the cellphone, Ms. Clarke stated she could not print photographs as there was no cord. The defendant testified that Ms.

Lafond told her that the police instructed them to move their motor vehicles to the Shoppers Drug Mart Plaza, which they did. The defendant testified that after parking their respective motor vehicles near one another in the Shoppers Drug Mart Plaza, they exchanged information.

The defendant testified that her sister was in the Blazer with her at the time of the accident. Her sister was not present by the time thepolice officer arrived some fifteen to twenty minutes later. The defendant testified that the officer parked near the Blazer. She testified that the officer looked at both motor vehicles and then spokewith her and Ms. Lafond. The defendant testified that he spoke with her first. The defendant testified that the officer indicated that dueto the damage on both motor vehicles she was at fault. As a result, he issued a certificate of offence.

The defendant was shown Exhibit 4 and she admitted that the photograph of the Blazer in Exhibit 4 was similar to the one she had beendriving. The defendant testified that the back bumper of the Blazer wraps around the back ends of the driver and passenger sides of the motorvehicle. Ms. Clarke testified that the Blazer had scratches on the back bumper, underneath the bumper and on the back of the tire. Shedenied that the damage was to the driver’s side back tire. She testified that the front portion of the Civic was against the driver’s sideback tire and the rest of the Civic was against her rear bumper.

She admitted that it was impossible for the Civic to have hit the yellowpart of the Blazer due to its height. On cross-examination she admitted that Exhibit 3 correctly depicted the damage to the Civic. The defendant testified that the Blazer was not repaired. The defendant testified that she was approximately 400 metres from her home in Aurora when the collision occurred. She admitted thatshe would have to make a right hand turn from Yonge Street northbound to go home. Conclusion on the Evidence I find the evidence of Ms. Lafond and the defendant to be problematic. It does not make sense that Ms.

Lafond was two car lengths behind the defendant, travelling at approximately the same rate of speed andthat the defendant somehow managed to hit her car. Either Ms. Lafond was not where she said she was or she was driving at a muchhigher rate of speed than the defendant. The alternate theory, namely, that Ms. Lafond hit the Blazer from behind is not consistent withthe evidence of damage to both motor vehicles. The defendant’s initial testimony that she moved into the left lane before Wellington Street, continued travelling in the left lane andsubsequently made a lane change into the left hand lane makes no sense.

Her later testimony that she made a lane change into the lefthand lane around the intersection of Aurora Heights Drive and Yonge Street is a more plausible version of the events and is consistentwith Ms. Lafond’s testimony. The defendant’s conflicting testimony with respect to the colour of the light is also problematic. That being said, the colour of the lightis not germane as to whether or not the lane change was made in safety as the incident did not deal with oncoming traffic but instead withtwo motor vehicles travelling northbound. Credibility I have considered the credibility of Ms.

Lafond, Officer Pilested and Ms. Clarke, and weighed the evidence heard in light of the test setout in R v W(D), (SCC), [1991] 1 S.C.R. 742 where Justice Corey, in writing for the majority of the Supreme Court ofCanada, explained at pages 757 – 758:

First, if you believe the evidence of the accused, you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. In terms of credibility, I found Ms. Lafond and Officer Pilested to be doing their best to tell the truth. They told their stories in a straightforward manner. Ms.

Lafond’s story was sensible albeit problematic. Officer Pilested’s evidence was narrow in scope and focused. Neither was shaken in cross-examination. By contrast, I do not accept the defendant’s version of what transpired. While it may be that she chose to travel northbound on YongeStreet from some point in Scarborough, the remainder of her story is not credible. I say this because the light was either green or amber;it was not both. Either there was traffic in the southbound lane or there was not. The damage to the Blazer is not consistent with a rearend collision; it is, however, consistent with what Ms.

Lafond indicated as well as with what Officer Pilested observed. It is consistentwith the photographs which were marked as Exhibits 1 – 3 at this trial. Ms. Clarke’s version of what transpired does not make sense. Accordingly, I prefer the evidence of Ms. Lafond and Officer Pilested. Much was made over the fact that Ms. Clarke appeared to be looking at her father throughout her cross-examination. I do not find thather gazing at her father is suggestive of either her father coaching her testimony or her looking for guidance in answering the questionsasked by Ms. Angus.

Although good trial practice suggests that witnesses should always direct their responses to the judicial officer, nonetheless most peopletend to look towards the person asking questions. That is human nature and I do not ascribe any ulterior motive to Ms. Clarke’s conduct. Furthermore, at no time whatsoever did Mr. Clarke appear to engage in any conduct which would suggest that he was providingassistance to his daughter whom he was representing. What was concerning to this Court was the demeanour of the defendant. She was fidgety and restless during the testimony of Ms.Lafond and Officer Pilested.

She made faces. Her tone was at times belligerent, yet at other times she was very soft spoken and almost scared. I found her evidence to be evasive attimes and contradictory at others. The inconsistencies in her evidence were not explained to my satisfaction. In conclusion, I do not believe the evidence of the defendant and, as previously stated, I prefer that of Ms. Lafond and Officer Pilested.

The Legislation Section 142 (1) of the Highway Traffic Act, supra, states: The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or drivewayor from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, andif the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of theother vehicle of the intention to make the movement.

It is settled law that subsection (1) creates two separate offences: one being the failure to see first that the movement can be made insafety, and the second being the failure to give a signal plainly visible to the operator of any other vehicle that may be affected by suchmovement: R v Lebendorf (ON SC), [1962] O.W.N. 233 (H.C.). The evidence of both Ms. Lafond and the defendant is that the defendant signalled her intention to change her lane. As such I am only

concerned with the offence of failing to see first that the movement can be made in safety. I was not provided with any caselaw by either party regarding s. 142(1) of the Highway Traffic Act, supra. The Law It is settled law that the offence of changing the lane not in safety is one of strict liability. As His Worship Quon stated at paragraph 153 in R v Hamid, 2008 ONCJ 246: [153] To determine if the defendant is guilty of committing this strict liability offence, a two

part inquiry is involved. In the first part, the prosecution has the burden to prove beyond a reasonable doubt that thedefendant has committed the actus reus of the offence or prohibited act set out in s. 142(1).

Once the prosecution has met its burden ofproving the prohibited act, then in order to escape liability the defendant has the burden to prove on a balance of probabilities that it hadtaken all reasonable steps for the circumstances to avoid the particular event or to prove that he had reasonably believed in a mistaken setof facts, if true, would render his act or omission innocent: R v Sault Ste Marie (1978), (SCC), 40 C.C.C. (2d) 353(S.C.C.). In short, the defendant has to prove he had not been negligent in making the left turn.

Moreover, the defendant will be foundguilty of committing this offence if he is unable to prove on a balance of probabilities either branch of the due diligence defenceestablished in R v Sault Ste Marie of taking all reasonable care for the circumstances to make the left turn in safety or that he hadproceeded with the left turn because of a mistake of fact. Much was made by the defence about the fact that the Shoppers Drug Mart Plaza is at a lower elevation than Yonge Street and AuroraHeights Drive. That fact was not disputed by Officer Pilested or the defendant. The testimony of Ms.

Lafond and the defendant was thatthey drove their motor vehicles and parked them in the Shoppers Drug Mart Plaza to await the arrival of the officer. Nothing turns onthis. Officer Pilested testified that he could see no debris on the roadway. This evidence was not contradicted. I accept this evidence. There was no evidence, however, with respect to whether or not there were skid marks. The defendant submits that because Officer Pilested did not take the parties onto the roadway then there is no corroboration of eitherversion of the events.

The defendant further submits that without knowing where the motor vehicles were at the time of impact theCourt cannot conclude what happened and therefore the prosecution has not met its onus in proving the prohibited act. The prosecution submits that although the point of impact is not an essential element of the offence, nonetheless in this case the evidencewas clear: the point of impact was the left lane. There is no dispute that the Blazer and Civic were travelling northbound on Yonge Street, north of Wellington Street in Aurora.

There isno dispute that the collision occurred in the vicinity of Yonge Street and Aurora Heights Drive. The defendant submits that I should prefer her evidence that Ms. Lafond hit the Blazer. I do not. That being said, the issue of who hitwho is only semantics; the innocent third party can be the one who hits the motor vehicle of the accused as the accused has theobligation to change the lane in safety.

I find that on the evidence before me, including the photographs, the defendant hit the Civic. That being said, the actus reus of the offence is not the collision; it is, instead, the act of making an unsafe lane change. On the basis of the third prong of W(

D) and the evidence which I do accept, I am not convinced beyond a reasonable doubt by that evidence of the guilt of Ms. Clarke. For greater certainty, I am not satisfied that the prosecution has proven the actus reus of the offence beyond a reasonable doubt. In the event I am mistaken here, I will deal with the potential defences as they were argued. I start with the fact that the defendant did not rely upon any of the common law defences such as inter alia duress or necessity.

Accordingly, I now turn to the determination as to whether the defendant has established the defence of due diligence on a balance of probabilities. The defendant did not rely upon the first branch of the defence of due diligence, namely, mistake of fact. The defendant relies upon the second branch of the defence of due diligence, namely that she took all reasonable care to avoid the collision. In support of her position, the defendant submits: i. she was prudent in checking her mirrors, ii. she checked her blind spot and Ms.

Lafond was not there, iii. she proceeded cautiously, and iv. she initiated the left turn when she thought it safe to do so. As a result, the defendant submits that she has shown on a balance of probabilities that she acted with due diligence by proceeding safely and reasonably in all the circumstances. On cross-examination the defendant testified that she looked in her mirror prior to changing her lane. Her testimony regarding which mirror – rear vision, passenger side, driver side, or all – she looked into was hesitant and uncertain.

It does not make sense that she was not able to see the Civic from her vantage point of the higher driver’s seat in the Blazer if the Civic was two car lengths behind her. As previously stated, either the Civic was not where Ms. Lafond testified it was or the defendant did not check her mirror(s). The defendant testified that she checked her blind spot and the Civic was not there. She testified that she told Ms. Lafond that she had checked her blind spot and the Civic was not there. Ms. Lafond testified that she told the defendant words to the effect “obviously I was”. Ms.

Lafond testified that the defendant was approximately two car lengths ahead of her. She testified that she was travelling at a rate of speed between 40 – 60 km/hr. If Ms. Lafond’s testimony on this issue is correct, then the Civic would not have been in the blind spot but would have been easily seen from the passenger side and rear vision mirrors. If Ms. Lafond’s recollection is correct, then the collision might have been avoided as she had two car lengths to come to a stop.

The only fact pattern that makes sense is that shortly before the collision the Blazer was no longer two car lengths ahead of the Civic, and the Civic was no longer travelling at a rate of speed between 40 – 60 km/hr. This is the only fact pattern that would be consistent with Ms. Clarke’s testimony that she checked her blind spot and the Civic was not there. I accept her testimony that she checked her blind spot prior to changing the lane. I accept that Ms. Clarke thought she had proceeded cautiously. Her use of the indicator signal suggests an awareness of other persons on the highway.

Her testimony that she put on her left hand turn indicator signal was not contradicted and I accept her testimony.

Ms. Clarke testified that she initiated the left turn when she thought it safe to do so. I accept that this is what she thought. The evidence suggests otherwise. As previously set out, I accept that she turned on her left hand turn indicator signal. As previously set out, I accept that the defendant checked her blind spot. I am unable to conclude on a balance of probabilities that she failed to check her mirror(s). The onus, once the actus reus of the offence has been proved, is on the defendant to prove on a balance of probabilities that she acted with due diligence. Based on the above, I find that Ms.

Clarke took reasonable care to first see that she could make the lane change in safety. The case is dismissed. Released: May 18, 2011 Justice of the Peace R. S. Shousterman