R. v. Abraham, 2017 ONCJ 957

CITATION: R. v. Abraham , 2017 ONCJ 957 DATE: October 25, 2017 4860 999 15 103426-00 THE ONTARIO COURT OF JUSTICE in the matter of the provincial offences act r.s.o. 1990 HER MAJESTY THE QUEEN v. JACOB ABRAHAM * * * * * * * * P R O C E E D I N G S A T T R I A L BEFORE HER WORSHIP JUSTICE OF THE PEACE C. SHONIKER on October 25, 2017, at 60 Queen Street West, Old City Hall, TORONTO, Ontario * * * * * * * * Charges: s. 130 - Highway Traffic Act - Careless Driving s. 142(1) – Highway Traffic Act – Turn – Not In Safety s. 200(1)(a) – Highway Traffic Act – Fail To Remain s. 199(1) – Highway Traffic Act –

Fail To Report An Accident * * * * * * * * Appearances : Ms. J. MacPherson Provincial Prosecutor Mr. W. Fedunchak Counsel for the Defendant Mr. J. Abraham The Defendant – in person THE ontario court of justice TABLE OF CONTENTS Exam. Cr- Re- WITNESSES : in-Ch. exam. exam. ********** EXHIBITS EXHIBIT NUMBER ENTERED ON PAGE ********** REASONS FOR JUDGMENT Page 3 **********

Transcript Ordered: _ October 25, 2017 Transcript Completed: _ May 26, 2018 Transcript Party Notified: __________________ WEDNESDAY, OCTOBER 25, 2017 REASONS FOR JUDGMENT SHONIKER, J.P. (Orally) : This is the Judgment of this Court in the case of R. v. Jacob Abraham . Mr. Abraham’s charges are Careless Driving, Turn not in Safety, Failing to Remain, and Failing to Report An Accident, relating to a date of July the 26th, 2015. More generally, as a result of the situation which developed on that date concerning a number of parties and their vehicles, including Mr. Jacob Abraham’s, a young man’s life was lost.

That is the individual George Christodoulou. The Court is aware that family members of that deceased young man have been present on previous court dates, as well as today; including during times in the Court’s trial proceedings, when evidence was presented and testimony heard. I wish to acknowledge the family’s loss. Although the Court has learned that George Christodoulou’s passing was quick and seemingly without any length of suffering, it makes hearing of his death no less difficult and the family’s loss no less profound.

As we all appreciate, the measure of an individual’s life is measured not by their years but rather by his or her actions and the love and kindness that they share with the others. The presence of family and friends for George Christodoulou here today and before tells me that he was very much loved by family and friends, and that his life had great meaning to you. The Court wishes to acknowledge this to the family of that gentleman.

Now to continue with the Court’s legal decision about the circumstances of that date … I will try to do so in a way respectful to all persons who were part of that day, including George Christodoulou, his family, Jacob Abraham and all other persons given mention. Jacob Abraham is charged with careless driving, a charge pursuant to the s. 130 of the Highway Traffic Act . He is charged with making an unsafe lane change, or turn not in safety, in contravention to s. 142(1) of the Highway Traffic Act .

He is further charged, in respect to the same date of July the 26th, 2015, that he failed to report accident, in contravention to s. 199(1) of the Highway Traffic Act . And finally, that he failed to report accident date (sic) in contravention of s. 200(1(

a) of the Highway Traffic Act . By way of something of introduction to this Judgment and something of a legend, this Court will indicate that it is going to frequently

refer to the following persons, vehicles and street names that formed part of the narrative of the incident date. Jacob Abraham, the Defendant charged. Jacob Abraham , then 68 years of age, operating a 2008 Pontiac van, red in colour, and hereinafter referred to as ‘ the Pontiac’ . George Christodoulou was operating a 2009 Yamaha YZF model motorcycle, which hereinafter will be referred to as ‘ the Yamaha’ . This was a six-geared style of road racing motorbike. It is George Christodoulou who died on that date of July 26, 2015.

Valerie Coates was then about 72 years of age and was operating a 2009 red Chevrolet Malibu four-door car, hereinafter referred to as ‘ the Chevrolet ’. Valerie Coates was driving with her husband David Fitzgerald as the front seat passenger. Kingston Road is a road in the east Toronto area, and is the roadway on which the accident occurred. Valmount Avenue is a residential side street which runs south from Kingston Road, adjacent to and immediately to the west of the Global Gas Station’s premises on Kingston Road. Kingston Road at Valmount Avenue was the closest intersection to the collision site or sites.

The Defendant, Jacob Abraham, was travelling westbound in the one westbound lane on Kingston Road. Valerie Coates and her husband were also travelling westbound in the same single westbound lane, a short distance behind Jacob Abraham. George Christodoulou was travelling in and coming from the opposite direction in the single eastbound lane of Kingston Road. He was travelling on his Yamaha motorcycle, initially was some distance to the west of the collision site.

Legal Presentation of Case: In the legal presentation of this case to the Court, the Crown’s case, their evidence and witness information, was ‘heard’ not through viva voce testimony but rather through exhibits/documentary evidence, including video footage. A comprehensive Agreed Statement of Facts, I’ll call it a binder or compendium, was submitted by the Crown representative, Ms. Jamie MacPherson, with the agreement of Defense Counsel, Mr. Ben Fedunchak, as well as the Defendant himself, Jacob Abraham. For the purpose of the Crown’s presentation of its case, Ms.

Jamie MacPherson generally and at times more specifically, outlined the contents of what I will refer to as the ASF binder, Agreed Statement of Fact binder, on court record. She mentioned all of its contents and highlighted certain parts of particular significance to the Crown’s case in the course of her presentation to this Court. Some approximately 32 exhibits were viewed by the Court, as well as camera footage which was watched by the Court and parties to the proceedings.

To be clear, the Agreed Statement of Facts (ASF) compendium was presented in its entirety to the Court as evidence upon which this Court was called upon to rely, to make its assessment and ultimately decision. The entirety of the ASF binder included evidence again referred to, but not so specifically or necessarily detailed and described by Ms. MacPherson on court record.

Types of Evidence: Looking at the evidence as provided by or through the Agreed Statement of Fact compendium, which included, but was not limited to, the following: • Maps and photographs of the area, including Google maps to give an aerial view; as well as, photos showing the visual perspectives of the drivers, including the perspective of Jacob Abraham, looking westward from his driving and turning position while in operation of his Pontiac. • Statements of civilian witnesses given to the police, sometimes written and others recorded on disk. • Information from investigating officers through their notes, reports and photographs respecting their actions and observations made on that date. • Evidence and scientific findings of expert witnesses, including the • Accident Reconstructionist Report, as well as the Accident Report of the officers. • These Reports, within and outside of their content, referenced and provided: Videos, photographs; Analytical calculations regarding such matters as speed analysis reports, and particularly speed calculations relating to the Pontiac, Yamaha, as well as the Chevrolet; Information from third party sources, such as the CCTV camera footage made available to the police from the commercial premises whose outside cameras captured vehicular movement on that portion of Kingston Road, including the movements of the Yamaha, Pontiac and Chevrolet in the moments before, during and after collision, as well as capturing pedestrian movement.

Still

photos were also derived from this footage from several cameras. Further, this footage captured the position and movement of all the vehicles from various angles, and as well as relative to the position of different buildings on the north side as well as south side of Kingston Road. This video footage and still photos, as agreed by Crown and Defense, gave an accurate and as well as synchronized time presentation of the events.

There was an erroneous time stamp difference of 22 minutes in respect to one of the cameras, which was taken into account and accepted otherwise to be synchronized in time and accurate. • Also contained in the Agreed Statement of Facts (ASF) compendium was vehicle manufacturing specs; for example, in regards to the Yamaha motorcycle which was operated on that date by Christodoulou - which included things like the Yamaha’s gross weight (a weight which includes driver weight, motorcycle weight, gas and fluid weight), which would have equaled a weight of approximately 895 pounds or 406 kilograms; as well, such things as the manufacturing information in regards to speed, rotation of wheels, vibration, et cetera; Vehicle Mechanical Inspection Reports, vehicle identification information and photos regarding the Yamaha, the Chevrolet and the Pontiac.

Ms. MacPherson walked the Court through approximately 32 or more photos, written reports and other exhibits contained in this compendium, and then presented the video footage of the roadway and the accident.

This Court feels it important to say that in coming to this Judgment, the Court has listened and watched carefully to all of what was said, both openly in the courtroom by Crown, defence and witnesses, but as well has also reviewed and carefully considered the full contents of the Agreed Statement of Facts Compendium, upon which this Court further relies as evidence and on the basis of which has made certain findings of fact.

Video Evidence: Next, in regards just to the video evidence, this Court would like to highlight some particular comments about the video camera footage obtained by the investigating officers. • The Outside Cameras: As earlier indicated, this was the footage from several cameras affixed to commercial premises, both on the north and south side of Kingston Road, capturing the roadway on both sides and from both sides, as well as the east and west Kingston Road entrances to the Global gas station, its driveways and its pump area where vehicles and persons outside of their cars could be seen throughout the video footage.

In the course of this trial, the Court viewed the video footage with Crown representative Ms. MacPherson, Defense Counsel Mr. Fedunchak, Mr. Abrahams, and possibly his wife was present in the court.

However, the family members, most or all of the family members of George Christodoulou, exited the court when the video footage was played. • This Court found the video evidence to be instructive for many reasons, including the following: The video footage showed the image of a man that we now know to be George Christodoulou in dark or black clothing on a dark or black racing style motorcycle, with handlebars that seemed to hold his body down or somewhat closely angled to his motorcycle. It showed the appearance of the rider on the Yamaha and the Yamaha itself. The video showed the Yamaha, albeit briefly.

Its appearance to be, what one might described, as a streamlined type of bike. Later, the contents of the Agreed-upon Statement of Facts compendium, a close-up of the Yamaha gave a consistent and clearer view. • The footage showed the location of all vehicles travelling in the area of the collision, particularly their manner and speed of travel.

The footage showed that people had and were standing outside on both sides of Kingston Road, including at the area of the gas station pumps of Global gas and nearby where the collision occurred. • The video showed the back wheel of the Yamaha lifted from the ground approximately 15 metres before the position of the Pontiac in its turn on Kingston Road. This lift of its wheel could be seen on the video. Its lift of its back wheel could be seen on the video as having taken place at a position just in front or north of the west Kingston Road Global gas driveway.

The Pontiac was further east along Kingston Road at what has been described as the ‘east Kingston Road entrance’ to the Global gas station. • The footage showed the Yamaha. The footage showed and instructed the Accident Reconstructionist in seeing that the Yamaha begins to make a turn diagonally.

The video footage shows that the Pontiac in its operation, including in the course of making its left- hand turn from Kingston Road in the direction of the Global gas driveway, made no sudden movement nor change of speed or direction, even at the point and after the Yamaha is now understood to have sheered the back passenger side wheel side of the Pontiac as the Yamaha moved alongside of it.

• The Accident Reconstructionist, in reviewing all of the camera footage, used this footage to determine that there was NO variation of Pontiac’s direction and speed in the milliseconds before, during or after the Yamaha had passed its side. • The video footage showed the Pontiac in what appeared to be a controlled slow turn, measured by analysis of the Reconstructionist for a speed of approximately 18 kilometres per hour towards the east entrance driveway of the Global gas lot; and showed that this turn began well in advance of the Yamaha coming into the footage area of the roadway; and that when the Yamaha did come into the footage of the roadway scene, it was travelling at a very high rate of speed. • Beyond enabling the forensic officers, the expert officers, with the footage to determine individual speeds, the footage also visually illustrated the relative speeds of each of the vehicles.

The Yamaha could be seen to be moving clearly at a higher rate of speed than the other vehicles which travelled back and forth within the frames. The footage also allowed the Police Reconstructionist to use certain landmarks such as light posts in order to mark a distance range over which time and travel was measured. This enabled the Expert Officers to accurately calculate the speed of each of the vehicles involved.

The video showed the sheer speed of what occurred, in other words the quickness of all of the events put together. • The video footage supported and helped to explain other evidential pieces of the Crown’s case; For example the evidence of witnesses who described the Yamaha as moving very fast and the loud sound of an engine revving - which is thought to have coincided with the point in time, as seen in the video, where the Yamaha’s back wheel lifts entirely off the ground as it crosses the front of the west entrance to Global gas.

The video demonstrated how it was mechanically/physically possible, as the Crown theory suggests and Defense agrees, that there was a sheering type of contact between the Pontiac and the Yamaha in its passing. Even by way of the Expert Reconstructionist Report, the exact nature and extent of contact between the Yamaha and the Pontiac and/or Mr. Christodoulou, George Christodoulou and the Pontiac was not easily, or was not discernible from the video footage.

This was at least in part because of the distance and angle of the cameras; and also because the Yamaha’s dark image, including the blending of the darkness of its rider with the Yamaha itself, meeting with the darker side-image of the Pontiac was an overlapping view, making more specific detail not discernible. • The video footage showed that after its passing and contact with the Pontiac, the Yamaha and George Christodoulou on it remained upright and remained still moving on the Yamaha but in a diagonal direction or a continuation of the diagonal direction that it had already begun before encountering the Pontiac.

This direction was diagonally towards the centre line and to the position where the Chevrolet vehicle was driving to.

The video showed therefore that even after contact with the Pontiac, the Yamaha was still moving at a high rate of speed, still upright, and now seemingly with its back tire back on the ground for a time. • The video helped us to understand and this Court to understand, that the Pontiac, due to its turning from Kingston Road into the gas station driveway, was at about a 40 to 45 degree angle to the south curb … at some point, sheer moments either at or about the time when the back wheel came off the ground and, as indicated in the Reconstructionist Report, turned to its left.

It could be seen by the video, this meant that at the point in time of their meeting, the Yamaha and the Pontiac were both travelling in opposite directions but potentially almost parallel to one another and both in an opposite diagonal direction. • As stated, the footage helps us to make sense of other types of evidence, including the evidence that the motorcycle, the Yamaha, essentially shaved or sheered off the plastic wheel cover and lug nuts and lug plastic lug nut covers from the back passenger wheel of the Pontiac.

The video footage allowed the Reconstructionist Officers and Investigating Officers to calculate the speed of the Yamaha as 122 kilometres per hour, well above the posted sign speed of 50 kilometres per hour in that area. Even after making contact with the Pontiac, and from then to the point of impact with the Chevrolet, the video enabled the Officers, Expert officers, to determine that the Yamaha was still travelling a speed over 90 kilometres per hour.

Evidence as contained in the Agreed Statement of Facts Compendium indicated that the Yamaha was in third gear even on its impact with the Chevrolet; which, from the vehicle specs as contained in the ASF, was a higher speed than suggested or indicated for that gear.

Again, the video allowed the expert officers in their investigation and review of the situation, taking its information into account as well as all other information into account, that the Yamaha travelled 13 feet between the – from where it passed the Pontiac to its impact with the Chevrolet. • The footage indicated and showed that the bike and George Christodoulou essentially hit the front of the Chevrolet instantaneously. The bike was thrown further north and west and landed on the grassy roadside on the north side of Kingston Road.

On the basis of the medical information received, it was this blunt force contact, or what was described as ‘blunt force trauma’ in the Accident Reconstructionist Report, which was believed by the Officer to have led to the immediate death of George Christodoulou and his passing even before the Chevrolet continued in its path to move forward and partially overtop the already deceased George Christodoulou. • As the video also showed, after the collision, four or five people were on different areas on either side of the road, then looking at

the accident scene where George Christodoulou came to rest. It showed Jacob Abraham stopped and got out of his car, moved about his car; and, in what appeared to be its examination, he bent down to look at different areas of his car, the Pontiac. It showed him looking at his vehicle, at the Pontiac, both on the back – including on the back passenger side. At some points, he moved away from the Pontiac, walked further east along the sidewalk, the south sidewalk. At some point, he stepped onto the roadway, but not too far, to look a little more closely or seeming to look a little more closely at the scene.

Other persons in the video footage were doing the same. • It showed that at times Jacob Abraham was standing in the immediate physical proximity of other persons. • It showed that Jacob Abraham moved the Pontiac.

At first he stopped the Pontiac where the nose of the Pontiac, was just going into the east driveway of Global gas, then stopped, then out. • It showed a little later that Jacob Abraham moved the Pontiac off of the road, but not too far; just a short movement further into the gas station lot, pulling up in a spot, a location between the gas pumps and the south boulevard of the roadway. • Sometime later, the video showed Jacob Abraham moved the Pontiac completely off the gas station premises, as the video shows a greater number of emergency vehicles continued throughout the footage to arrive on scene. • The footage, in combination with maps and photographs presented, showed that in that area of Kingston Road there was only one lane in either direction, going east or going west.

In this area there were mostly low level commercial buildings on the north side of Kingston Road; and, on the south side, a combination of residential and commercial buildings, with some portions of the roadway having older trees having something of a canopy effect. • The video footage, as well as the photographs, showed a reflection of the weather and environment conditions as sunny and clear, as well as the natural look, condition of the roadway and its surrounding areas.

Review of Evidence and the Court’s Findings of Fact: Moving on, the Court will now indicate its review of the evidence and its findings of fact based on that review and consideration. This was a review and determination based on all the evidence presented by Crown and Defense, which included what was spoken about by the Crown in Court, again as well as the other contents of the Agreed Statement of Facts Compendium and the testimony of the defence witnesses. At this point, the Court wants to take a moment to thank Ms.

MacPherson for her work, especially in putting together such a comprehensive compendium of information, and wishes also to thank Defense Counsel, Mr. Ben Fedunchak, for his assistance, and the assistance and the cooperation of the Defendant in regards to the preparation of the Agreed Statement of Facts Compendium. This ultimately saved the Court from hearing the evidence through viva voce testimony, and would have been the testimony of somewhere between 10 to 15 witnesses.

This Court also wishes to thank the officers, police officers and their specialists, for the work behind their reports, maps, mathematical analyses, graphing, diagrams and photos, which were all thoroughly reviewed and instructive to this Court. This Court acknowledges this because this case was one in which the Court needed to assess all the evidence distinctly, but also as a whole; a case in which perhaps the sum of the information and the evidence was greater than its individual parts.

This Court has done that review in order to appropriately come to certain Findings of Fact pertaining to the date of July the 26th, 2015. The Court has made the following Findings of Fact, particularly as these factual findings relate to the drivers, Defendant Jacob Abraham, George Christodoulou and Valerie Coates, in the operation of their vehicles: • The Defendant, Jacob Abrahams had been at the Canadian Tire store and was en route home driving the Pontiac. He was alone in the operation of his vehicle.

He travelled westbound along Kingston Road with the intent of stopping at Global Gas Station, which was about a two-minute drive from home, or an eight-minute walk from his home address. Jacob Abraham was driving in a westerly direction along Kingston Road.

• Kingston Road in that location was only two lanes, one in either direction. In that location, there was only a solid ground line dividing the opposing lanes of traffic, without a center median and without a center turning line or lane.

There appeared, by all of the evidence presented, not to have been a shoulder line on either the north or the south side of Kingston Road in or about that location. • The Court further finds on the facts that this area of Kingston Road was a combination of both commercial and residential properties; commercial mostly on the north side of Kingston Road, and a greater residential area to the immediate west and south of the Global Gas Station, particularly as was indicated on Valmount Avenue. • Valmount Avenue was a residential street which meets Kingston Road on the south side of Kingston Road, and Global Gas Station was on the southeast corner where Valmount met Kingston Road. • The incident date was July 26th, 2015, at 1:29 p.m., and the day was sunny and clear. • Just prior to his intended turn, Jacob Abraham slowed his Pontiac to make the left-hand, a left-hand turn into the east entrance of Global Gas driveway.

Jacob Abraham moved his Pontiac gradually into his left turn without any sudden stops or sudden changes of speed or movement. • The Court accepts the testimony of Jacob Abraham and that he had been careful to look to both sides, as well as in the direction of opposite traffic, to ensure that a turn could be made safely at that time for vehicles as well as pedestrians or persons walking the street. • The Court accepts that at that time Jacob Abraham reasonably determined that the path of pedestrian and traffic was clear to make the left-hand turn. • It was only after the Pontiac had already begun its turn and was crossing over the eastbound travelling lane when George Christodoulou on his Yamaha was seen in the footage approaching and travelling eastbound originally from some distance - away and west on Kingston Road. • Christodoulou, on his Yamaha, was travelling at a high rate of speed, measured initially at 122 kilometres per hour • Christodoulou came to at a distance of approximately 13 metres or less (as indicated by the mapping of the Re-Constructionist’s Report) away from the area of where the Pontiac was turning, when the Chevrolet had come into view and waited for the Pontiac to clear its turn. • Just before that, there was a sound - as one witness described - a sound like thunder. • It was described, and this Court finds as a fact, that the rear wheel of the Yamaha lifted entirely off the ground began to turn diagonally, still moving forward, sheering by the Pontiac, still again moving forward at a speed of approximately 100 kilometres per hour, still with the rider, George Christodoulou, on and upright on the Yamaha. • The evidence is, and the Court finds as a fact, that this side-sheering type of contact with the Pontiac caused the sheering off of the grey wheel-cover on the one wheel, and some of the same wheel’s grey-coloured, lug-nut rubber covers and lug nuts. • The Yamaha continued travelling in its diagonal path.

This was a path that took the Yamaha across the centre lane and into the oncoming lane of traffic.

• Through the Accident Re-Constructionist’s Report, the Court was given evidence available to him by his measurement of speed and the other evidence. Throughout the execution of Jacob Abraham’s turn - before, during and even after the point known now to have been a contact - the Accident Re-Constructionist found that Jacob Abraham did not adjust his speed or course or manner of operation of the Pontiac in any way. The Reconstructionist used the video footage for close analysis of this.

In other words, the police expert found absolutely no vehicular response so as to suggest that Jacob Abraham, as the driver of the Pontiac, had seen the Yamaha in advance of contact; neither also to suggest that he known that any type of contact with the Yamaha or anything or anybody else had at some point occurred. • Between the Pontiac and the Chevrolet impact, the video footage showed the Yamaha, upright again, clocked at a speed range in between 90 to 100 kilometres per hour.

At the point of impact with the Chevrolet, the speed was calculated at an impact-speed of 91.5 kilometers per hour. • Valerie Coates and her front seat passenger, her husband James Fitzgerald, were travelling Kingston Road westbound in the red Malibu Chevrolet in that place and unfortunately at that moment in time. • Valerie Coates had been driving a short distance behind Jacob Abraham in the Pontiac, and had slowed behind the Pontiac to allow it to clear its left turn. • Valerie Coates indicated by her evidence - her statements, as contained in the Agreed Statement of Facts compendium, that she witnessed nothing unusual or alarming about Jacob Abraham’s operation of the Pontiac and the turn of the Pontiac. • Interestingly, she indicated to the officer in the context of one of her statements that she had noticed how “filthy”, the Pontiac appeared to be on its outside. • Valerie Coates indicated and the Court accepts that without knowing what had hit her, suddenly she felt a hard thud. • Despite the fact that she was driving and facing the eastbound traffic, and the traffic having only one lane on either side, she said that she never saw anything coming towards the front of her Chevrolet. • She stated to the officer, as she was talking about the Pontiac ahead of her, and that the Pontiac was turning into the gas station and then indicated, “I never seen anything coming at all.

Nothing. Then bang and I laid on the brakes. I was probably only doing 20 or 25 kilometres. I did not see anything. I didn’t even know it was a motorcycle. Slammed on my brakes but it was too late.” • Her husband, in the front passenger seat beside her, indicated to the police, and the Court accepts, that they were travelling westbound and that he detected what he described to the police as a blur in front of his car, which was followed by the braking. • There was fairly substantial damage to the front of the Chevrolet.

Again as photographed and described in the context of the Agreed Statement of Facts compendium, this damage included a broken light cover or covers, torn off licence plate, indentation to the body - front body of the vehicle in different places thought to have been caused by George Christodoulou, but also areas separately caused by the bounce-off from the vehicle by the Yamaha, which moved further north and east of the Chevrolet’s location. There were scratches to the red paint, as well as indentation.

The Court now will look at the next area in regards to the evidence and findings of fact, these more particularly relating to the charges alleged of Failing to Report and Failing to Remain or immediately return to the scene of an accident when directly or indirectly involved. The Court makes Findings as follows: • On hearing the loud noise, Jacob Abraham stopped his Pontiac at the point where the front of the Pontiac was just crossing over into the driveway of Global Gas. The Court heard and accepts his testimony that he had heard a loud noise which raised his concern.

• Jacob Abraham exited the Pontiac, and moved about it. Other persons were also outside, looking to see what had happened. As mentioned earlier, about three or four persons were on the south side of the roadway, the same side as him; and at least two of those persons were in or near the gas pumps throughout the footage, before, during and after the occurrence.

One or two persons were standing on the north side of Kingston Road. • The Court heard from Jacob Abraham and accepts that Jacob Abraham could see and/or hear that other persons had called 9-1-1 to get help to the scene, and therefore, he did not himself make a 9-1-1 call. He called his wife to tell her of his delay home for their meal together and told her that there had been an accident between a motorcyclist and a car. • By both the footage and his testimony, the Court accepts and finds that Jacob Abraham, looked around on getting out of his vehicle initially.

Soon thereafter, he looked from the back of his vehicle and to the direction of the Chevrolet and the Yamaha, or the accident, and recognized that a terrible accident had occurred. He walked about the Pontiac and examined his car, including the back passenger side area.

Jacob Abraham told this Court, and this Court accepts his evidence, that he did so wanting to ensure that nothing had struck his Pontiac, his vehicle, which might have been projected or propelled from the accident, which was about that 13 or 14 metres diagonally away from his location at that point. • Both an officer in his notebook, as well as Valerie Coates, indicated in their statements and note-taking that the Pontiac was, “filthy” on that date.

Finding nothing unusual by his examination of the Pontiac, Jacob Abraham concluded that his Pontiac was undisturbed by the accident. • The Court accepts his testimony as a fact that this was his true belief at the time - that he had not been part of an accident which had occurred, not directly or indirectly part of any accident that had occurred. This Court will later assess the reasonableness of this belief by him. • After his examination, he did not leave the scene but stayed in the area to observe events as they unfolded.

At one point he said in his testimony - in case also an officer may have had some questions, anything in regards to the scene or events, anything that might potentially be asked of someone. • He was not alone in staying at the scene.

The three or four other civilians could also be seen on the video footage and also remained on the scene, in or about where the accident happened. • The two men who were standing outside getting gas at the nearby pumps immediately south and parallel to the roadway where the accident happened indicated to the officers that their attention was drawn to the Yamaha because of the noise it was making. The one witness mentioned that there was a sound, the noise of the motorcycle, present even before the additional louder revving sound.

And the other witness, again one of the individuals who was about the pumps at the gas station, indicated the revving sound sounded like, “thunder”. • The Court accepts the evidence and finds as a fact that Jacob Abraham moved his Pontiac just off of the roadway right in front of the gas pumps, and that it was on someone’s suggestion that he ‘should get his car off the Kingston Road’. It could be seen in the footage that emergency services had already at that point begun to arrive.

The new, second location of his vehicle in front of the gas pumps essentially placed the Pontiac in a position where the passenger side, already examined by him on the initial stop, was fully exposed to the roadway and the emergency services personnel who continued to arrive. Again, he stepped out of his car and stayed on the street with the five or six other individuals scattered about and took observation. • Fire trucks arrived first and police cars then arrived on scene.

By the information, evidence that’s contained in the Agreed Statement of Facts compendium, as well as the footage and photos, it could be seen that one or more police cars parked at least partially across the entrance way to Valmount Road, Avenue rather, from Kingston Road. It was sometime later, at about after 3:00 p.m., that the police had run a police tape across that entrance across Valmount from Kingston Road. • At times, Jacob Abraham stood in the company of other persons.

These other persons were persons who ultimately gave statements to the police, or are believed to be those persons who gave statements to the police, because these persons identified later as having been there at the time in the process of getting gas. Therefore, Jacob Abraham was in the company of other persons, potentially witnesses to what had occurred in their view.

• The Court heard and accepts as fact that a person from the gas station suggested to Jacob Abraham that he move his van again, further out of the way, perhaps with a suggestion of moving it to the back of the gas station lot. • Instead of going to the back area of the gas station, Jacob Abraham moved his van to the more open public area of the Valmount Street, using the access from the Global Gas station, the exit from that gas station lot into Valmount.

Although outside of the visual of some of the photographs, or actually outside of the visual of the video footage, the later photographs revealed that Jacob Abraham had parked on the side of the street in a spot arguably closest to the driveway, on Valmount – closest and just south of the Valmount driveway into the Global gas lot, which was also a spot closest to the intersection of Valmount with Kingston Road. • The Court heard and accepts as fact that Jacob Abraham had a conversation with his wife over the phone, and that Ms.

Abraham testified and this Court accepts that he told her that a motorcycle had been involved in an accident with a car. • She testified in the court that on her own she later decided to walk over from their home and join her husband at the location. Ms. Abraham indicated, and this Court accepts, that there was no suggestion in her mind of anything wrong or unusual with her husband’s behaviour, a husband she was married to for over 40 years. • In her testimony as well as Jacob Abraham’s, Ms.

Abraham she indicated that it was towards the end of her husband’s time of approximately 1.5 to 2 hours in about that area while he was there at the roadside, when an officer approached and asked Jacob Abraham ‘if he was involved in the accident’. He answered no. And ‘if he had seen the accident’, and he answered no. He was then told to clear the area, to leave. The Court heard and finds that Jacob Abraham honestly answered to the officer at the time of these questions being posed. • The officer told them to leave, which he and his wife did.

They temporarily left the Pontiac parked on Valmount while emergency services were still engaged at the time in the on-scene investigation of the accident and the roadway. Mr. Abraham and his wife returned home to their meal, later going out, and coming back in. But, it was later that night that the police attended to the home of Jacob Abraham, arrested, charged and handcuffed him and took him in to the station.

The Application of the Law: The Crown submitted by the action or non-action of Jacob Abraham on July 26, 2015, that Jacob Abraham failed to remain and/or immediately return to the scene of an accident about which he knew or reasonably ought to have known that he was directly or indirectly involved.

The Crown further argued that the Defendant, Jacob Abraham, has not, by his defence, his testimony and other evidence, raised a defence of due diligence insofar as a reasonable determination by him as to whether his Pontiac was or was not directly or indirectly involved in an accident which ended with the Yamaha and the Chevrolet.

The Crown also submitted that, in large part arising from the failure of the Defendant to exercise due diligence in his determination as to whether or not he was directly or indirectly involved in an accident, Jacob Abraham also then failed to report that an accident had occurred, directly or indirectly involving his Pontiac, as is required of a reasonable driver in the proper operation of his vehicle by provisions of the Highway Traffic Act .

As indicated by the case law provided by Crown and Defense, and as already known to this Court, both the offences of Failing to Remain at the scene of an accident and Failing to Report an accident are strict liability type of offences.

This means that, first, that the Crown must prove all the elements of each of the offences beyond a reasonable doubt; but then, even if the Crown has proved all of the elements of an offence beyond a reasonable doubt, it still remains open to a Defendant to present evidence of an exercise of due diligence by him or her in the situation, so as to have reasonably and objectively come to a conclusion about what obligations, if any, he or she had to remain at and report direct or indirect involvement with an accident.

It is important to note that the legal test is not simply a question of what Jacob Abraham personally did or did not understand about the circumstances and his legal obligation; but the test is a question about what a reasonable driver, reasonably informed and reasonably

acting, would have reasonably determined and done in the circumstances and understood in their assessment of the circumstance. In other words, in the present case, the actions of Jacob Abraham must be looked at both subjectively as well as objectively by the Courtin the context of all of the surrounding circumstances. Crown and Defense made reference to a number of cases previously decided by the Courts including the higher Courts. The casesincluded, R. v (City of) Sault Ste.

Marie, 1978 S.C.R. 1299(S.C.C), R. v Lifchus (1997), (SCC), 3 S.C.R. 320(S.C.C.), R. v Park(2003), 59 W.C.B(2d)389, R. v Beauchamp, (ON CA), 1953 O.R. 422(Ont. Court of Appeal), R. v Jacobsen, (BC CA), 1964 B.C.J.No.93 R. v Beatty, 2008 SCC 5 , 2008 S.C.C. 5 (S.C.C.), R. v Roy, 2012 SCC 26 , 2012 S.C.J. No.26 (S.C.C.), R. v Shergill, 2016 O.J. No.1503, R. v Bornstein, 2016 O.J. No.6745 (O.C.J.), R. v Jacobs (1955), 22C.R.154 (B.C.

Court of Appeal), R. v McMillan (2013), O.N.C.J. 25 (O.C.J.), R. v Hoyles (2005), CarswellNlfd 328 (N.L.Prov.Ct), R. v Smith (2015), M.J.No.141 (Manitoba Court of Queen’s Bench), R. v Park (2003), 2003 CarswellNfld 279 (N.L.Prov.Ct.), R. v W.(D.), (1991) 1 W.D.R. 320 (S.C.C.), R. v Dillman

(2008) ONCJ 1001 (OCJ), R. v Racimore

(1975) O.J. No. 729 (Ont. H.C.), and R. v Rousseau (1938) (ON CA), O.R.472 And, Mr. Clerk, I’ll provide that list and their citations to you. Oh - Madam Clerk - you switched on me. The Court has reviewed and applied the law and principles of these decisions when coming to its judgment in respect of the case athand.

Evidence and Findings of Fact by the Court: The Court will now consider the evidence and thereupon the factual findings, more particularly as they relate to the issue about whetherJacob Abraham exercised due diligence in coming to a conclusion as to whether he had any level of involvement in an accident; andwhether he was therefore under a legal obligation to report on the date of July 26, 2015.

The evidence and Court findings of fact wereparticularly instructive in this regard. • After Jacob Abraham and his wife left the roadway scene and went back to their home, officers, accident officers, and an expert re-constructionist continued in their detailed work and examination of the roadway, vehicles and accident scene.

It was only through thecourse of their expert investigation that the officers later that day came to believe that there was possibly another vehicle somehowinvolved potentially in the accident. • The officers later that afternoon in their reports indicated that they had found debris fragments on the roadway, some of these on

the north grassy curb of Kingston Road, which did not match either the Yamaha or the Chevrolet. Much of the small fragment debris was located what would have been a distance from where Jacob Abraham had initially and thereafter again exited his car on the other side of the roadway. • Some of the debris fragments was found on the north side, north of the Chevrolet, and even further east beyond it. The small pieces of grey plastic were ultimately pieced together by officers to form a broken plastic grey wheel cover, as could be seen in the Accident Re-constructionist’s Report information.

But on the accident scene, these small pieces were grey in colour, about the same colour as the asphalt of the roadway, and mostly contained in the debris circle of closer to the Chevrolet and on the north side of it. And I will get back to that a wee bit later. • For example, a lug nut cover was ultimately determined to have come from the Pontiac, was found in the grass on the north road side, further east of the Chevrolet.

Other fragments were also found on the north and the east side of the Chevrolet. • Despite the many officers and investigating officers on scene who had spoken to a number of witnesses, including Valerie Coates, and James Fitzgerald, as well as at least two other persons, a Corrado Falifeel and an Abimbola Alatunyi, nobody, none of these persons had suggested that the Pontiac was in any way involved. • Valerie Coates herself did not suggest possible contact or involvement with the Pontiac. James Fitzgerald did not suggest possible involvement, directly or indirectly, between the Pontiac and the accident.

Corrado Falifeel, in his statement, indicated that he looked up and saw the bike going east, that would be the Yamaha, on Kingston Road. He had heard a high revving sound. That’s what caught his attention. Looking up and seeing the bike going east on Kingston Road, he went on to indicate that he tried to avoid hitting a westbound vehicle, presumably the Chevrolet. • So it was late the afternoon that the officers began to check cars in the vicinity, having these pieces of debris that didn’t match either the Yamaha or the Chevrolet.

The information as contained within the Agreed Statement of Facts compendium indicated that they checked a couple of different cars, one of which was the Pontiac, which at that point was still left parked on Valmount Avenue. At the Valmount roadside, the officers observed that the Pontiac had some scratches to the back, scratches and scrapes to the back passenger side near the rear wheel and around it. They saw it to be missing its plastic wheel cover, as well some smaller pieces described as lug nuts and lug nut covers. They indicated in their notes that there was rust within the area of the wheel well.

It was noted in the context of photographs later taken of the Chevrolet that there was fuel residue, what was described as fuel residue. In the photographs this gave a darker black colour to a portion of the metal inside uncovered wheel frame which was already black and, quite obviously from the photos, dirty and rusted. • In any event, on discovering the roadside look of the Pontiac on Valmount, the officers continued their investigation and later in the evening attended to the address of Jacob Abraham, registered to that plate. They told Jacob Abraham what they had found at roadside about his vehicle.

As contained in the Agreed Statement of Facts compendium and by his evidence, they indicated the debris found and that the debris was missing from his Pontiac.

With Jacob Abraham’s cooperation, he and the officers looked at the Pontiac. • He indicated to the officers, and the Court accepts as a fact, that he had not noticed this damage on his own, that he had not previously noticed that this one wheel cover was missing, and that he indicated to the officers that the car was older, 2008, and that there was pre-existing scratches and damages to that portion of the Pontiac. • The pre-existing, similar type of damage was substantiated by Ms. Abraham in Court.

This Court accepts the existence of that pre- existing damage which was also to the rear passenger area, including around the wheel well, as indicated both by Jacob Abraham and his wife. • When the officers told him that it was their belief that the Yamaha had made contact with his vehicle, he had indicated to them that he had had no idea that that was the case. He was arrested, handcuffed and taken into the station. Even against the advice of duty counsel lawyer, Mr.

Abraham continued his conversation with the police and gave answer to their questions. • This Court has the evidence before it, most especially from Mr. Abraham that he did not know, and this Court finds as a fact that in fact he did not know, accepts that to be true.

• What is important, however, is that this Court must find and determine whether on at least a balance of probabilities that Jacob Abraham exercised due diligence and care in coming to that conclusion of non-involvement with an accident. • When the Court considers whether or not he exercised due diligence, the Court takes into account a number of evidential pieces: His evidence that he did not feel anything hit or make contact with the Pontiac while he was in operation of it; his staying to observe the accident scene and make efforts in order to come to some type of determination as to what happened, as opposed to his having more readily left the scene; his considering whether at least to call 9-1-1 but appreciating that other persons had done so in order to facilitate potential response; his taking time for examination of his vehicle, as he testified, to see if anything had struck his car, which he indicated thought might have been projected from the collision involving the Yamaha and the Chevrolet; the existence of, and the fact of there being pre-existing damage already in place on his vehicle at that time; damage that was in the area of his vehicle and the same type of scratches and scrapes as was the sort of pre-existing damage that was later substantiated by his wife to have occurred at a shopping mall parking lot.

Ms. Abraham testified that some time ago, while she was shopping a couple of years before, a vehicle had seemingly scraped or came too close beside the van, the Pontiac, and had caused the same kind of scraping damage allegedly or now known to have been caused by contact between the Yamaha and the Pontiac. • Jacob Abraham explained that he was in some degree of shock when on stepping outside of his vehicle and discovering that a motorcyclist, that there had been a serious accident involving a motorcyclist.

It is important to note that, even if there is an acknowledgement of some degree of shock by him, the fact of his being somewhat in shock does not reduce or make his assessment unreasonable or lacking in proper care when otherwise objectively also considered. • In recognizing the sheering high speed nature of the contact between the Pontiac and the Yamaha, the Court considered the testimony of Jacob Abraham as well the statements of other witnesses contained in the compendium - all surrounding evidence on which Jacob Abraham concluded that he was not in any way involved with the accident. • In fact, Mr.

Abraham’s assessment on that date was directly or inferentially supported by the same sort of assessment or conclusion of those five other persons on scene at the time, and based on what they had separately also witnessed. • Unlike the police and the expert forensic investigators, Jacob Abrahams (sic) did not have the benefit of the kind of additional information and detail that became available to the police through the course of that afternoon’s investigation, in coming to a determination as to whether or not he was directly or indirectly involved with an accident.

It was also only through the video evidence obtained by the police and the further investigative-analyses by the Accident Re-constructionist, the team of police officers and experts, that this Court comes to have a greater understanding, a reasonable understanding, of the actual movements of the three vehicles on that date. Mr.

Abraham was not privy to that information when he concluded that he was not involved in the accident, and therefore did not report and did not remain, for reasons of or purposes of the law and therefore without any substantive exchange of driver and other information between him and any other party. • Again, not a single witness even suggested that the Yamaha came very close to the van, let alone made contact with the Pontiac.

Not a single witness or bystander approached Jacob Abraham while he stood on the road for a couple of hours to question him about the accident, even as he openly stood at the roadside, in or about those other persons’ company. Not a single person questioned him even after he was seen to have publicly and openly looked at his, openly and publicly, looking at his vehicle whilst his vehicle was parked in front of the gas pumps and directly beside the roadway.

No witness suggested any noise of contact between the Yamaha and the Pontiac, such as a scraping type of noise that might have been expected with sheering contact, and this was despite the fact that some of the witnesses were outside at the pumps nearby when all of this happened. The Court finds that the speed with which the Yamaha was moving and the consequent speed of events further contributed to what the Court determines as an objectively reasonable determination by Jacob Abraham that he was not involved in any way with the accident.

It was equally as reasonable for all of the other witnesses to have similarly concluded the same, as was inferentially or directly indicated by their statements. • Finally, all of this is supported by the Crown’s own expert Accident Re-constructionist’s evidence, who indicated that, “judging by the fact that Jacob Abraham made absolutely no change in speed or direction in the making of his turn, including at the time of the Yamaha making contact suggests that he was not aware and essentially therefore not reactive.” • The Crown challenged Mr. Abraham in regards to his exercise of due diligence.

The Crown asked him, ‘did he not see the debris and fuel spray on the ground?’ This Court accepts the testimony from Jacob Abraham that he did not see the debris at that time, from where he stood in relation to the materials and debris that the Crown was speaking about. This Court finds that it was not unreasonable

for him not to have seen this debris whilst at the time observing from a point near to his Pontiac and/or across the street from the lane within which the Yamaha and Chevrolet made impact. • Also, as the Crown’s police photos show, the circle of debris was actually much closer to and encircled about the Chevrolet. Most of the debris field was not in close proximity to the contact point of the Pontiac and Yamaha, and it was a further distance from where the Pontiac had moved to, both initially stopped and then later parked on the roadside - from where Mr.

Abraham was making observation. • As contained in the Agreed Statement of Facts compendium and as contained in the 100 plus pages of the Accident Re- constructionist’s Report, the closest debris to the point of contact between the Pontiac and Yamaha were a small piece or pieces of rust and a small piece of rubber which was broken or sheered off from the lug nut or lug not covers. This debris was in the most west and south area of the diagramed ‘Debris Field’.

Perhaps due to the high speed of the Yamaha in passing and scraping by and moving onto impact with the Chevrolet, the small parts from the Pontiac, including lug nut and lug nut covers, were shown by the debris field to have been carried all the way to and beyond the Chevrolet and were ultimately found by the investigating officers to be north of the Chevrolet.

And some were found in the grassy north shoulder of Kingston Road, even further to the east, which would arguably have been entirely too small and outside of Jacob Abraham’s roadside view. • The Crown again, challenging whether or not Jacob Abraham exercised due diligence in coming to his conclusions about that date, asked whether and why he had not seen fluid spray on the road - possibly to inferentially suggest that his not seeing fluid spray on the roadside would be reflective of a lack of attentiveness and exercise of due diligence on his

part in determining possible involvement with the accident. On this point, the Court reviewed the evidence as provided by the Crown, again reviewing all the evidence as contained in the Agreed Statement of Fact compendium, and again looking at the accident Re-constructionist’s Report, particularly at page 11 of 100 of the report.

The diagram and mapping shows that the fluid spray on the asphalt did not in fact start at what would have been the point of contact on the roadway between the Pontiac and the Yamaha, but rather a number of metres away and just south of the centre line; with fluid present on the ground to the right front passenger corner of where the Chevrolet came to stop and beyond. • When considering spray, the Court sought the evidence as contained within the Crown’s information and, at page 35 of the 100 plus pages of just the Accident Re-constructionist’s Report, found, “Hydraulic fluids spray from the damaged front forks of the Yamaha sprayed on the roadway in a northeast direction, across the westbound lane toward the north grass shoulder.” In other words, the spray was spraying forward from the Yamaha and not behind the Yamaha. • In regards to the fuel itself, nothing specific was said about fuel but at page 19 of 100 on the same expert’s report, a photo was provided into evidence.

It showed that in the uncovered metal, inside-circular area of the tire was what appeared to be a blacker area indicated to have been darkened by fluid or fuel residue. This was darkening of an otherwise already black, inside, metal, uncovered surface, which was also both dirty and heavily rusted, as the photograph also showed. • The Court further accepts Jacob Abraham’s testimony that he did not see that residue or spray of fluid on the roadside when he stood observing from the scene after the accident despite a reasonable level of diligence and attentiveness to his surroundings at that time.

The Court further accepts his testimony that he did not see or recognize what ultimately was determined to be fuel residue on the uncovered wheel, perhaps for the physical reasons already given mention by this Court. The fuel residue was not indicated to have colour but just the darkening of the already black metal background.

The Court finds it not unreasonable that he did not notice on his roadside examination of the Pontiac the hard-to-see residue of fuel on this back passenger wheel, despite best efforts and/or reasonable efforts to examine. • Finally, the Crown also challenged his exercise of due diligence by asking whether or not he noticed a red paint chip on the street - possibly to suggest that had he looked and had he seen it, this would have alerted him to the possibility of his Pontiac having been involved in the accident.

Again, this Court accepts his testimony that Jacob Abraham did not see any small chip of paint on the road; and finds that in reviewing its location, size and background, in the context of all the information and evidence as provided by the compendium of materials, that he did not see it.

Nor could he have necessarily seen it, taking into account its size, location and distance away from where he stood at an observation point on roadside, and as it was diagramed and located in the debris field in the police reports. • As a side note, and not legally determinative in any way, the evidence as contained and presented to this Court through the agreed statement of facts compendium and otherwise indicated that the paint chip, the small paint chip, was similar in colour to the paint of the Pontiac but was not necessarily found in fact to be a paint chip coming from the Pontiac rather than the Chevrolet.

In the agreed statement of facts compendium, with the vehicle descriptions being given, both the Chevrolet as well as the Pontiac were indicated in their descriptions as being red in colour. Despite the fact that the Crown, Ms. MacPherson, referred at times in her questions and/or submissions as the Pontiac of ‘a burgundy colour’, “red” is what is indicated in the materials as contained in the Agreed Statement of Fact binder. The Court indicates this so as to be precise to the information provided within that compendium of materials.

• The damage to the front end of the Chevrolet was extensive, with damage to both the upper, lower, both sides of the front, including some dents, scratches, a torn-away licence or licence plate, damage to the light covers and a broken and absent front grill piece or pieces.

The damage was consistent with the Yamaha and then almost instantaneously Christodoulou impacting the front of the Chevrolet at a speed then indicated of 91.5 kilometres per hour, believed to be the trauma, blunt force trauma, which caused his death. • This Court concludes that Jacob Abraham has shown, on a balance of probabilities, that he exercised due diligence in all of the circumstances on the date of the accident, July the 26th, 2015.

This Court finds that he was subjectively as well as objectively reasonable in concluding on that date and time that he was not involved directly or indirectly with the accident and was therefore without legal obligation to remain or report. • This Court will next consider evidence and factual findings in regards to its determination and ruling relating to the charges of Careless Driving and Turning Not in Safety. This Court finds as a fact that Jacob Abraham was driving westbound on Kingston Road at an appropriate level, rate of speed - what was measured as less than the speed limit for that road location.

There was nothing unusual or inappropriate about his manner of driving, given by the evidence, as indicated by Valerie Coates, who was also driving her Chevrolet westbound on Kingston Road with her husband beside her and just a distance behind the Pontiac. • This Court finds that Jacob Abraham slowed appropriately in order to prepare to make a left turn off of Kingston Road with the intention of entering Global Gas Station.

As Jacob Abraham indicated on the stand and as this Court accepts his testimony, Jacob Abraham looked in both directions, in all directions, both ahead and to the side, to check for vehicular as well as pedestrian traffic, to ensure the way was clear for him to safely make a turn. • The Court finds, as informed by the expert information, expert police information, that Jacob Abraham proceeded in operation of the Pontiac at a rate of approximately 15 to 18 kilometres per hour in making the left-hand turn at a point approximately 40 to 45 degrees diagonal to the roadside and moving across the singular eastbound lane.

As supported by the Expert Reconstructionist, this Court accepts and finds that Jacob Abraham felt no interference with his turn and at no time became aware of any level of side impact or any sort of impact with the Yamaha or anything else or anybody else; nor had he become aware of the Yamaha’s presence at any part of the roadway prior to what is known now to be a contact during it and/or after.

As earlier stated, the Accident Reconstructionist indicated that the lack of any sort of reaction in the operation of the vehicle before, during and after was indicative of a lack of awareness before, during and after. • The Court heard from Jacob Abraham and accepts that he stopped, and he got out of his Pontiac primarily because he heard the loud noise which concerned him. In describing Jacob Abraham’s operation of the Pontiac to the investigating officer, Valerie Coates said that she saw the Pontiac slow ahead of her for turning and that she slowed then in order to allow the Pontiac time to clear the turn.

Valerie Coates and her husband, in separate statements to the police investigating officers, described that there was nothing unusual, unexpected or improper about the movement of the Pontiac ahead of her prior to and in the course of its turn. There was nothing mentioned that was unusual. There was no indication of any unexpected change of direction or speed.

Both Valerie Coates and David Fitzgerald, her passenger, saw nothing coming at them or their Chevrolet or in the direction of their Chevrolet or the Pontiac from the opposite direction, neither from a distance nor closer. • The Crown contended or submitted that the Pontiac turn arguably was not a turn in safety. The Crown submitted that Jacob Abraham may have spent too long in making the turn or that he did not cut sharply enough into the turn so as to have spent arguably too much time in a somewhat diagonal position within the eastbound lane as he was crossing over.

This Court finds that although this may be the Crown’s submission, this is not the evidence before this Court and as contained in the Agreed Statement of Facts compendium of evidence and as heard from the testimony of witnesses.

There is no expert evidence or other evidence to suggest that Jacob Abraham took ‘too long in making his turn’, whatever too long might be, and/or that it necessarily in the view of an should have been a tighter turn, whatever other angle might have arguably been made – and would have been preferable, arguably in the Crown’s submission. • On the contrary, the Court finds that all of the evidence before the Court, including Crown’s expert officers, indicates that Jacob Abraham did not over-turn or under-turn or spend too long in the eastbound lane.

There is no evidence to give substance to that, as the evidence indicated he was moving through the turn at a speed consistently of 18 kilometers per hour, and there was nothing found to be inappropriate about that level of speed in the evidential reports.

Reports and video footage, as presented in evidence, show that the Pontiac turn was controlled. • The Court finds that Jacob Abraham from a distance, from the distance – let me restate that - The question was not being asked in the course of this trial whether George Christodoulou and his Yamaha should have, could have, seen the Pontiac or the Chevrolet from his originating location and through the distance travelled so as to have avoided collision, beginning at a speed of 122. That question

was not and needed not to be answered in the context of this hearing. However, the question is asked, whether asked directly or indirectly, whether Jacob Abraham should have or would have seen the Yamaha at a distance coming in the direction of his turn. Much like the question could have been asked whether or not Valerie Coates in her Chevrolet should have, could have or would have, seen the Yamaha coming in her direction and ultimately somewhat diagonally from the west, moving at her generally in an eastbound direction.

I again turn to the Agreed Statement of Facts compendium, including the Accident Reconstructionist Report, which gives the simple answer to this question: • The simple answer from the Reconstructionist is Jacob Abraham would not have seen the Yamaha. And it is not indicated in the analysis by the Accident Reconstructionist that he would not have seen the Yamaha because he was not looking. It is not because Jacob Abraham in his Pontiac was failing to be cautious and prudent. It is not because Jacob Abraham in his Pontiac was turning too wide or too long or too slow or too fast.

The Expert’s analysis that Jacob Abraham would not have seen the Yamaha was an analysis based on a number of factors, ultimately determining that the Yamaha with George Christodoulou on it was not seeable.

He was not detectable. • As stated by the Accident Reconstructionist, “Drivers can only avoid and react to what they see and in this situation it was dependent on the behaviour of the motorcyclist, including his speed, clothing worn by the cyclist, environmental and visibility factors, ability of the motorcyclist, condition of the vehicle and traffic conditions.” • The Reconstructionist expert then went on, in the Report, to break down the factors to ultimately come to his conclusion that he would not have been seen or seeable or detectable by Jacob Abraham essentially.

His Report mentioned the nature of the vehicle, the other evidence showing that this Yamaha, a 2009 YZF, was a racing star motorbike. It had low handlebars, moving the body position of its rider to be lower to the seat and frame of the bike itself. It had a streamlined appearance with what might be described as an aerodynamic windshield, i.e. Lower-level windshield, and a slim frame. This Yamaha was black in colour with some gold trim. This Yamaha did not have any back seat rest or flags or saddlebags or other types of attachments to give additional bulk, width, height or colour to the appearance of it.

George Christodoulou on that date weighed 185 pounds and was five foot seven inches tall, not an exceptionally large person on the motorcycle, the Yamaha. • More importantly, as the Reconstructionist indicated in his review of the various factors, Christodoulou was dressed entirely in black, wearing a half black helmet, all black clothing, including a black T shirt, black pants, black shoes, black bandana; and, that further, in looking at the environmental and visibility factors, the Reconstructionist indicated that if one were to look from the area of the roadside where Jacob Abraham was in his Pontiac and Valerie Coates then moved up to in her Chevrolet, and looking from about that position and westward, as diagramed and photographed and referred to by the Reconstructionist, the backdrop of trees and buildings west and behind, what would have been the image of George Christodoulou on the Yamaha was dark on dark. • The traffic on that date happened to be light and, because of that, provided no chance of contrast of the dark image of motorcyclist and motorcycle against a vehicle possibly lighter in colour. • The Reconstructionist also noted that there was no lights and no reflective clothing or materials on the rider, or on the rider and the bike.

The Reconstructionist noted the speed of travel of the Yamaha as factoring into the equation as to whether this rider could have, would have, should have essentially been seeable by Jacob Abrahams (sic) specifically or a person arguably in around that location, and the answer was he would not have been seen. In conclusion on this point, the Court finds that there is insufficient evidence, if any evidence at all, to suggest that Jacob Abraham made a turn not in safety. The Crown has not proved this charge beyond a reasonable doubt.

In fact, the Court accepts the evidence of Jacob Abraham that he turned, exercised and operated his vehicle on that date, including turning his vehicle on that date, with an exercise of reasonable care and consideration for himself, as well as the users of the roadway, including pedestrian and/or vehicle traffic, and made reasonable efforts to, in advance of the turn, to ensure that it could be safely made at the time or so he reasonably believed.

The Court wonders whether it likely that Jacob Abraham’s operation of his Pontiac on the date of July 26th, 2015, would have ever been called into question but for this accident having sadly occurred, but the accident and the death of George Christodoulou is not by itself determinative as to whether Jacob Abraham drove carelessly or not, made an unsafe turn or not. The fact of the accident, the impact between the Yamaha and the Chevrolet ultimately does not change what the Court finds was Jacob Abraham’s reasonable exercise of care in the operation of his vehicle.

The fact of the Yamaha’s contact with the van and ultimately the Yamaha’s then contact or later contact with the Chevrolet again is not determinative of the question as to whether Jacob Abraham was reasonably or not in the safe operation of his vehicle. It does not automatically flow from the fact of an accident, of any accident, that parties to the accident were necessarily not exercising due caution and control, due caution and care in the control of their vehicles before and at the time an accident occurs.

Again, the Court concludes that Jacob Abraham is not guilty of the offence of making a turn not in safety. Finally, in regards to a consideration of the Careless Driving charge against him, based on the Court’s review of the evidence as earlier stated and its findings of facts based upon the review of all evidence and testimony, this Court finds also that the Crown has failed to establish the elements, each and all the elements of the offence of Careless Driving beyond a reasonable doubt.

In fact, on the evidence as provided by the Crown and as contained in the compendium of materials, this Court fails to see any evidence of careless driving. In the Court’s view, the evidence presented by the Crown was in fact supported rather than contradicted by the defence witness. The evidence presented by the Crown did not call into question but rather affirmed the responsible and safe operation by Jacob Abraham of his Pontiac on that date. As an aside, nor did the evidence of the Crown call into question the reasonable and safe operation by Valerie Coates of her Chevrolet.

The Court was appreciative again of the Crown and the officers for their hard work and extensive investigation. The aspect of defense evidence which supported the Crown evidence is that part that the Court earlier referred to as the totality of the situation when looked at, where the sum can be greater than its parts. The Court was appreciative that it was able to look at the entire situation so as to be able to come to this judgment. That being said, I want to say again, as representative of the Court, that I am very sorry to the family of George Christodoulou for his passing.

I want to say also that I am sorry to Jacob Abraham for also carrying the weight of these charges for over the past two, two and a half years almost With the conclusion of this trial, I hope and wish families well and to move forward. As a final statement then in regards to the decision of this Court, the Court finds that Jacob Abraham is not guilty of careless driving. Jacob Abraham is found not guilty of Turn Not in Safety. Jacob Abraham is found not guilty of failing to Report an Accident.

I’ll also say in short, Jacob Abraham is found not guilty of the final other charge of failing to remain at the scene of an accident. * * * * * *