Her Majesty the Queen - v. -, 2013 SKPC 129

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 129 Date: September 4, 2013 Ticket No.: 7615840 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - James R. Taylor Appearing: Brian Hendrickson, Q.C. For the Crown Self-Represented For the Accused JUDGMENT M. GORDON , J [ 1 ] James R. Taylor is charged that on the 23 rd day of February 2013, at Moose Jaw, Saskatchewan, did fail to yield to an approaching vehicle when making a left turn contrary to s. 219(3) of The Traffic Safety Act . At the beginning of the trial, Mr.

Taylor asked the Court to dismiss the charge based on the fact the originating notice (Offence Notice Ticket) had been altered and he was not served with a true copy. The Crown responded by saying the notice before the Court was not defective. Mr. Taylor had submitted to the jurisdiction of the Court and that just because the box indicating Provincial Court was not checked, was not fatal to the Crown proceeding. There is no indication of Mr. Taylor being misled. I noted that Mr. Taylor had made a very similar application on April 17, 2013, the first return date for the ticket.

I had dismissed the application at that time.

[ 2 ] Section 18(1) of The

Summary Offences Procedure Act speaks to the requirements of an offence notice ticket. The

section reads as follows: 18

(1) An offence notice ticket under this

Part is required to: (

a) include: (

i) a certificate of offence; and (ii) an offence notice; and (

b) be in a form prescribed by the regulations.

(2) An offence notice is required to: (

a) be served on the defendant; and (

b) indicate: (

i) the specified penalty sum for the offence; (ii) how and when the defendant may respond to the offence notice; (iii) that the defendant may be convicted in the defendant’s absence without a hearing: (

A) if the defendant fails to respond to the ticket by the date indicated on the offence notice; or (

B) if the defendant responds to the ticket by the date indicated on the offence notice but fails to appear for a trial date; and (iv) that payment of the specified penalty sum made more than 15 days after the due date indicated on the offence notice will result in a late payment charge pursuant to

section 28. [ 3 ] It is noted that s. 18(2)(ii) states how and when the defendant may respond to the offence notice. Mr. Taylor submits that because Provincial Court was not checked off on his copy of the ticket, that it does not conform to the requirements. However, I do note that very clearly the address of the Court is stated on the ticket and Mr. Taylor did attend. He did not want an adjournment. He could not say how he was misled and so I ordered that the trial should proceed. [ 4 ] The Crown called three witnesses. The first witness was Cst. Mercer, a police officer with the Moose Jaw City Police.

He was dispatched to a motor vehicle accident at 1 st Avenue Northwest and Caribou Street, a controlled intersection with traffic lights. He noted two vehicles pulled off to the side of the road and spoke with the occupants of each vehicle. He noted that an eastbound vehicle has the choice of three lanes on Caribou; being a right turning lane, a middle lane to proceed straight through in an easterly direction and a left-hand turning lane to turn north on 1 st Avenue. The officer noted the damage in general to each of the vehicles.

The officer admitted he could not determine exactly where the collision occurred as the vehicles had been moved. The officer spoke with Mr. Taylor, whose statement was admitted after a voir dire . Mr. Taylor indicated to the officer he had just left the motor club (CAA) building on the northeast corner of 1 st and Caribou and proceeded west on Caribou and was making a left-hand turn, south onto 1 st Avenue. Mr. Taylor was cooperative with the officer. In cross-examination the officer disagreed with Mr.

Taylor’s assertions that the officer had said he had to give a ticket to someone because SGI likes to determine fault. The officer also indicated that he had no explanation for why the original ticket and the police copy of the ticket had the box “Provincial Court” ticked off whereas it appeared that Mr. Taylor’s copy did not. [ 5 ] David Vilness was the next witness called by the Crown.

He lives and works in Moose Jaw and on the date in question, he was driving his 2000 Chrysler Intrepid east on Caribou Street to the 7-11 store which is located on the northwest corner of Main and Caribou, approximately one block away. His girlfriend Andrea Melland was his only passenger. He testified he was in the middle lane proceeding to cross 1 st Avenue and continue eastward. Mr. Vilness noted a white car travelling west turning left. He was 30 to 40 feet from the intersection at this time and did slow down.

He then saw a blue Ranger and he “flinched a bit” as the Ranger vehicle turned left immediately in front of him. Mr. Vilness slammed on the brakes and tried to swerve to the right to avoid the accident. He thought he was going to be clear, but the vehicles did strike each other. Mr. Vilness said the Ranger truck hit him on the driver’s side and Mr. Taylor’s front and side of the vehicle was damaged. Both parties after determining there were no injuries, looked at the vehicles and decided to move them out of the intersection so traffic was not blocked. Mr. Vilness recalls Mr.

Taylor asking if his right blinker was on and Mr. Vilness said “no”. Mr. Vilness’ girlfriend Ms. Melland called the police who arrived in approximately 20 to 30 minutes. Mr. Vilness was adamant he did not have time to take evasive action.

[ 6 ] In cross-examination Mr. Vilness was also adamant that he saw Mr. Taylor’s truck accelerating although he did admit neither vehicle was going very fast and in fact the air bags did not deploy. [ 7 ] Andrea Melland was a front seat passenger in her boyfriend’s Chrysler Intrepid. She testified that they were driving east towards Main Street to go to the 7-11. She testified they were going straight through the intersection and were in the middle lane. The light was green. They were just before the crosswalk running north and south on Caribou when they noticed an oncoming vehicle, white in colour, turn left.

She noted her boyfriend stepped on the brakes slightly and then continued his route straight through the intersection. Then it was apparent Mr. Taylor’s vehicle was also turning in front of them and they were halfway through the intersection and Mr. Taylor’s truck turned left right in front of them. Ms. Melland admitted in cross-examination that there was a congenial conversation with Mr. Taylor and he even picked up some glass from her car and threw it in the garbage. She did note though that Mr. Taylor said that Mr.

Vilness was turning right and she became concerned that there could be a problem and decided to report the accident to the police right away. [ 8 ] James Taylor testified that he was facing west in the second lane on Caribou to make a left-hand turn or turn south. He said he saw the Vilness vehicle in the curb lane going to make a right-hand turn. Therefore he continued making his left-hand turn. When he was about halfway through the turn, this other vehicle, the Vilness vehicle, did not make a right-hand turn but continued straight through the intersection. Both vehicles were hardly moving.

On cross-examination Mr. Taylor was adamant that the Vilness vehicle was in the right-hand turn lane. Mr. Taylor admitted he assumed the Vilness vehicle was going to make a right-hand turn and turn into the right- hand lane going south. He said the Vilness vehicle appeared to be almost stopped and had not entered the intersection. He did not see any signal light and again he said he was well into his left-hand turn when the Vilness vehicle started moving. He had no idea that the Vilness vehicle was going to come straight through the intersection.

He again said that the Vilness vehicle was not in motion when he was making his turn and again he said in cross-examination that he only made his left-hand turn as this Vilness vehicle was in the right- hand lane and Mr. Taylor assumed it was stopped and going to turn right. The front bumper of his vehicle was scraped by the left-hand corner of the Vilness vehicle. POSITION OF THE PARTIES [ 9 ] The Crown recognizes the case revolves around a factual determination of the Court with respect to the position of the vehicles. Both Mr. Vilness and Ms.

Melland testified they were in the middle lane on Caribou proceeding in an easterly direction. They had the green light and they were going through to the 7-11 store. All agree that a white vehicle in front of Mr. Taylor made a left-hand turn. Mr. Vilness also testified that he had slowed down, that he had no signal light on to turn right and he had no reason to turn right. Ms. Melland’s testimony corresponds to this description of events. The Crown says if one looks at the damage on the vehicles, it is consistent with the Crown witnesses’ description of the driving action. [ 10 ] Mr.

Taylor, the Crown says, makes an assumption that the Vilness vehicle is going to turn even though he sees no signal light. The Crown submits it is clear that the Taylor vehicle did not yield. He was turning across the traffic that was proceeding straight through which had the right of way. Mr. Taylor either did not see the Vilness vehicle or must have thought he could clear the corner before the Vilness vehicle. DEFENCE POSITION [ 11 ] Mr. Taylor questions why Mr. Vilness would let the white truck make the left-hand turn if he was going straight through. If Mr.

Vilness was in the through lane, why would he have hesitated and be moving so slowly and why would Mr. Vilness have been so defensive when questioned by Mr. Taylor at the scene? In addition, Mr. Taylor questioned the investigation by the police officer and suggested that it was not thorough as no written statements were taken from all the parties and the officer waited until Mr. Vilness and Ms. Melland had left before talking to him and giving him a ticket. Finally, Mr. Taylor said if the Vilness vehicle was going straight through, there would have been more of a head on collision, not hit at an angle.

LEGISLATION

[12] Section 219(3) of The Traffic Safety Act reads as follows: If the driver of a vehicle intends to turn left across the path of any vehicle approaching from the opposite direction, the driver shall: (

a) yield the right of way; and (

b) not make the turn until the driver has afforded a reasonable opportunity to the driver of the approaching vehicle to avoid a collision. ANALYSIS [13] It is accepted law that offences such as this are considered strict liability offences (R. v. Sault Ste. Marie (City), (SCC), [1978] 2 S.C.R. 1299). They do not require the mens rea of criminal offences but neither is it enough to simply prove theactus reus. A strict liability offence is prima facie made out when the Crown establishes that the defendant did not act with a degree ofcare expected of a reasonably prudent person in the circumstances. [14] Mr.

Taylor submits that he was following the rules of the road and that he was in the proper lane to turn left and the light wasgreen. Further, it was the other vehicle that caused the accident as it was in the lane to turn right and the driver changed his mind andproceeded straight through thereby causing the accident. This is not a case of Mr. Taylor arguing due diligence. Mr. Taylor says he didnothing wrong. Therefore the issue is whether the Crown has met the burden to prove beyond a reasonable doubt that Mr.

Taylor failedto yield to an approaching vehicle when making a left-hand turn. [15] Because credibility is an issue a W.D. analysis is necessary as the Crown witnesses and the defendant differ in theirdescription of events. I found both Crown witnesses to be very clear and straightforward in their description of the event. They wereproceeding east on Caribou to the 7-11 store on the corner of Main and Caribou. They were in the middle lane, the proper lane forcontinuing on and travelling straight through in an eastward direction.

A vehicle in front of the Taylor vehicle had made a left turn infront of them that caused the Vilness vehicle to slow down. Both Crown witnesses testified that their vehicle was across the intersectionwhen Mr. Taylor’s truck drove in front of them making a left-hand turn. The damage to the two vehicles is consistent in my view withthese descriptions by the Crown witnesses. [16] Mr. Taylor in cross-examination admitted that he was familiar with this intersection.

He was very adamant that the Vilnessvehicle was in the right-hand lane and had no signal light on and that the Vilness vehicle was not in motion so that he thought he hadtime to turn left. Mr. Taylor did admit that these were assumptions he made. Mr.

Taylor admitted he had no idea the Vilness vehiclewas going to proceed straight through the intersection. [17] Pursuant to s. 219(3) of The Traffic Safety Act, a driver turning left when a vehicle is approaching from the opposite directionmust yield the right of way and only turn when the approaching vehicle has been afforded a reasonable opportunity to avoid a collision. In making this decision numerous factors must be considered. In Swenson v. Saskatoon (City), [1986] S.J. No. 401 (Sask. Q.B.), Mr.Justice Gerein stated, in interpreting the equivalent

section of The Traffic Safety Act that: In determining whether it is safe to turn, the driver must make himself aware of and weigh a variety of circumstances. These will includethe distance the approaching vehicle is from the intersection; the speed of that vehicle; the colour of the traffic light; the distance whichthe turning vehicle has to travel in order to fully pass through the approaching vehicle’s path; the rate of acceleration and speed withwhich the turn can be effected.

While left turns are made innumerable times every day, they frequently involve a complex decision andrequire considered, albeit rapid, judgment. As well, the relevant time is immediately prior to the commencement of the turn. It avails the driver nothing to say that he misjudged thespeed or distance and didn’t realize the true situation until he was into the turn. In the event of any uncertainty, the turn must not bestarted. [18] In R. v. Everdink, 2009 SKQB 10, Mr. Justice Wimmer sitting on an appeal of conviction under this

section states as followsat para. 3:

The appellant feels he has been unfairly treated because, according to his recollection, the vehicle which struck him was approaching the intersection in a parking lane as opposed to a driving lane. In fact, it was both depending upon the time of day. That is, during certain hours parking is prohibited on that portion of Dewdney Avenue to allow through traffic to proceed and at other times parking is permitted. In any event, the issue is of no consequence because section 219(3) of the Act requires all left turning vehicles to yield to any vehicle approaching from the opposite direct in whatever lane.

It was the appellant’s responsibility to be sure the roadway was free of oncoming traffic before proceeding with his left turn. [ 19 ] Therefore, making a left turn requires a driver to cross the flow of the oncoming traffic. Even when the light is green, a driver intending to turn left must be very careful. A driver has the responsibility to keep a good lookout, be cautious and if there is any uncertainty, to wait. [ 20 ] I find that Mr. Taylor is mistaken about the Vilness vehicle. I do not accept it was in the curb lane intending to turn right. Even Mr.

Taylor admitted the Vilness vehicle did not have a right signal light operative. In my view, it is more likely Mr. Taylor decided that he could make the turn prior to the Vilness vehicle proceeding through the intersection. Mr. Taylor’s presentation and attitude suggest to me he is quick to blame others. His evidence that he assumed the Vilness vehicle was turning is an attempt to rationalize and explain his actions after the fact. I have no hesitation in accepting the Crown witnesses saying they were going to the 7- 11 store and that they were in the middle or eastbound lane of traffic.

Therefore, I have no hesitation in finding the Crown has proved its case beyond a reasonable doubt and Mr. Taylor is guilty as charged. M. Gordon, J