R v. Isadore Date:, 2014 BCPC 217

Citation: R v. Isadore Date: 20140401 2014 BCPC 0217 File No: 96330-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DONALD CHARLES ISADORE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Ms. C. Elliott Counsel for the Accused: Mr. K.A. Walker Place of Hearing: Kamloops , B.C. Date of Hearing: February 4, 2014 Date of Judgment: April 1, 2014

[ 1 ] Donald Isadore is charged with three counts as follows: 1) That he did drive a motor vehicle on a highway, 6 th Avenue and Victoria Street, while he was prohibited from driving a motor vehicle; 2) That he being the driver of a motor vehicle and facing a green light at the intersection of 6 th Avenue and Victoria Street, did fail to yield the right of way to a pedestrian lawfully in the intersection or in an adjacent crosswalk at the time a green light was exhibited; and 3) That he did operate a motor vehicle was disqualified from doing so by reason of a prohibition ordered pursuant to the Criminal Code prohibiting him from operating a motor vehicle. [ 2 ] This trial was about Count 2, with the remaining counts to be dealt with at the conclusion of this matter. [ 3 ] On November 21, 2012 at approximately 5:30 p.m.

Katrina Jensen left the casino at the Hotel 540 and went out to the parking lot to sit in her vehicle for a cigarette. From her vantage point in the vehicle, she could see Victoria Street as she faced east. In front of her the cross street was 6 th Avenue. Ms. Jensen said it was not very busy out. She saw Valerie Brooks, whom she had seen in the casino, walking toward the intersection. She had already seen the light change to a walk signal in favour of pedestrians crossing Victoria Street. She had already observed pedestrians cross through that crosswalk. She watched as Ms.

Brooks stepped off the curb into the crosswalk. She observed that the walk light went out after Ms. Brooks stepped off the curb. There was some discussion in cross examination about whether Ms. Brooks had in fact missed the walk light, but I am satisfied that Ms. Jensen saw Ms. Brooks step into the crosswalk while the walk light was on. It turned to the flashing “Don’t Walk” signal almost immediately after. [ 4 ] Ms. Jensen said the traffic light turned green for the 6 th Avenue traffic as Ms. Brooks was in the middle of the crosswalk. Then Ms.

Jensen saw a truck turn into the intersection, accelerating as it proceeded into the turn. The truck struck Ms. Brooks and she went flying. Ms. Jensen had not seen the truck to that point. She said after Ms. Brooks flew in the air, the truck rolled forward a bit, but less than a half a car length. He then backed up less than half a car length but more than he had proceeded forward. [ 5 ] There were some points lacking clarity in Ms. Jensen’s statement to the police, which she explained as being in a state of shock. Those points requiring clarity were consistent with her evidence at trial.

I found her to be a careful and thoughtful witness. [ 6 ] Liam Sylvester had been walking down 6 th Avenue heading north. He recalled waiting for the light to go green so that his walk signal would come up and he could cross Victoria Street. When the light went on, he crossed onto the other side of the intersection. It took him no longer than 5 seconds and he was not aware of any other pedestrians around him. According to Ms. Jensen there had been other pedestrians, so I conclude that he simply did not make a note of them. [ 7 ] Once on the other side, Mr.

Sylvester did not observe whether or not the walk light was still on. However, he is familiar with the intersection and knows that the signal changes “pretty fast”. About 5 seconds after he got onto the sidewalk, he heard a thud. Mr. Sylvester turned and saw Ms. Brooks fly to the ground in front of a black pick-up truck. She flew about 4 or 5 feet. Mr. Sylvester went to the victim, saw a pool of blood, but did not know what to do because he was in shock. [ 8 ] Mr. Sylvester recalled the driver got out of his truck and looked at the victim on the ground.

He got back into his truck and backed up about 5 feet. [ 9 ] Mr. Sylvester said that he was just concentrating on getting to the mall. He did not notice the light, the pedestrians on the sidewalk, or any pedestrians in the crosswalk. He felt that he had only gone about 5 to 10 feet before he heard the thud once he reached the other side of the crosswalk. He expected that he had probably slowed down. Mr. Sylvester also said that he was not paying attention to details because he was in shock. [ 10 ] June Isaac is Mr. Isadore’s sister. She was with her brother in the truck.

She said he asked her if she wanted to go to the casino. He drove them there. [ 11 ] Ms. Isaac said that they came down Victoria Street, went to the bank, and then proceeded up 7 th Avenue to St. Paul Street, then down 6 th Avenue toward Victoria Street. [ 12 ] Ms. Isaac said that Mr. Isadore pulled up to a red light at 6 th and Victoria. She said they were waiting for the light to turn green. They were the first vehicle in line at the light. They waited awhile, then the light went green. She said they had to wait for about three vehicles to come up 6 th Avenue before they could do the left turn.

She said after that, they turned left. The light was still green when he turned left. He turned into the centre-most of the two lanes on Victoria Street. [ 13 ] Ms. Isaac said that she did not see the lady (Ms. Brooks) until they were close to her. Her brother said “shit” and she was in front of them. She said Mr. Isadore hit the brakes and bumped Ms. Brooks. She figured that Ms. Brooks went back a couple of steps. That is a significant difference from Ms. Jensen’s description of Ms. Brooks flying through the air. The objective evidence of the degree of Ms. Brooks’ injuries does not support Ms.

Isaac’s evidence. [ 14 ] Ms. Isaac said they both got out to see the pedestrian. Ms. Brooks was trying to get up. [ 15 ] Ms. Isaac agreed noncommittally in cross examination that Mr. Isadore accelerated heavily when he made the left turn. She

estimated he was going about 10 km/hr. She could not remember how far away the victim was, how far forward Mr. Isadore moved between striking her and coming to a stop, but she did remember him backing up. She guesstimated he backed up about a foot. [ 16 ] Corporal Reader is a forensic collision reconstructionist with the RCMP. His report assumes that Ms. Brooks was in the crosswalk when she was struck. There is no specific physical evidence at the scene that would confirm she was in fact in the crosswalk. Corporal Reader observed that the vehicle, being Mr.

Isadore’s truck, was stopped with the rear wheels in the middle of the Victoria Street crosswalk. There was a large pool of blood 6.9 metres from the nearest crosswalk line and 9.85 metres from the farthest crosswalk line. Ms. Brooks’ backpack was located 5.05 metres from the nearest crosswalk line. Corporal Reader concluded that Mr. Isadore’s vehicle executed a left hand turn from 6 th Avenue onto Victoria Street and struck Ms. Brooks, projecting her forward from the point of impact.

He found no evidence of any braking and no evidence of a point of impact. [ 17 ] Assuming that she had been in the crosswalk, Corporal Reader determined that Mr. Isadore was travelling between 23 and 40 km/hr based upon the speed at which Ms. Brooks was accelerated on the Searle scale and the speed Mr. Isadore would have been travelling on the Slide Quadratic and Northwestern scales prior to colliding with Ms. Brooks. These are all accepted scales used in accident reconstruction to determine speed in accidents such as these. [ 18 ] Ms.

Brooks had been dressed in black pants, a black jacket and a royal blue scarf, along with a black backpack. [ 19 ] Kevin Wallace is a vehicle mechanical inspection expert who provided a report indicating that there were no mechanic problems with Mr. Isadore’s vehicle. [ 20 ] Mr. Isadore said that he was coming from the direction of his home, proceeding through the back alleys to 6 th Avenue. He said he was taking his sister to the casino before taking himself to the hospital. He said that he emerged on 6 th Avenue after checking for traffic.

He then slowed again to check for cars in the next lane before changing into the one that would permit him to make a left turn onto Victoria. He was going to turn first into the fast lane onto Victoria westbound before moving over to the right lane. [ 21 ] Mr. Isadore said he checked to make sure the traffic light was green, he checked for cars coming in his direction and he checked for pedestrians. He saw the car beside him move, so he moved. He said he slowed and pretty well stopped before he turned to look some more. He was proceeding slowly because he did not trust the weather conditions. [ 22 ] Mr.

Isadore checked to see if there were any pedestrians moving north and there was no one. He started to move into the fast lane and the victim was right in front of him. He said it was the first time he noticed her. He hit the brakes and stopped. He did not remember backing up after he struck her. He got out to check on Ms. Brooks. He said she was in bad shape, bleeding from her nose and mouth. He agrees he may have moved the vehicle afterward but he does not remember. [ 23 ] Mr. Isadore did not remember going to the bank first or going up to St. Paul and over. [ 24 ] Mr.

Isadore said the light was green as he approached the intersection, not red as his sister said. He said it might have been red before he got to the crosswalk, but it turned green by the time he arrived. He had no recollection of waiting for other vehicles to come through the intersection. [ 25 ] Mr. Isadore said he checked the crosswalk for people going north to the casino side but did not see anyone. Of course, Mr. Sylvester had said he crossed as soon as the light turned green and Ms. Jensen said she saw other pedestrians cross through the crosswalk before Ms. Brooks entered it.

There were certainly pedestrians; Mr. Isadore just did not see them. [ 26 ] Mr. Isadore confirmed that he is a prohibited driver. He said he had a licence briefly back in the 1980s but did not get beyond his Learner’s licence. He did not get a licence again until 2010, but that was subsequently taken again. [ 27 ] The vehicle he was driving had a particularly large A pillar and mirror. This created a blind spot which he would have to check around by physically moving. [ 28 ] Mr. Isadore was familiar with the intersection. He knew it had a traffic light and a cross signal.

He also knew that pedestrians had the right of way when their walk signal was on. [ 29 ] On cross examination, Mr. Isadore said he looked north and then looked to see if anyone was crossing from behind him. He said he did not see Ms. Brooks until she came into his headlights. [ 30 ] Mr. Walker argued on behalf of Mr. Isadore that the Crown must first prove that Ms. Brooks was in the crosswalk.

Relevant sections of the Motor Vehicle Act are 125, 127 and 132: 125 Unless otherwise directed by a peace officer or a person authorized by a peace officer to direct traffic, every driver of a vehicle and every pedestrian must obey the instructions of an applicable traffic control device. 127(1) When a green line alone is exhibited at an intersection by a traffic control signal, (

a) the driver of a vehicle facing the green light (

i) may cause the vehicle to proceed straight through the intersection, or to turn left or right, subject to a sign or signal prohibiting a left or right turn or both, or designating the turning movement permitted, (ii) must yield the right of way to pedestrians lawfully in the intersection or in an adjacent

crosswalk at the time the green light is exhibited, and (iii) must yield the right of way to vehicles lawfully in the intersection at the time the greenlight became exhibited, and (

b) a pedestrian facing the green light may proceed across the roadway in a marked or unmarked crosswalk,subject to special pedestrian traffic control signals directing him or otherwise, and has the rightof way for that purpose over all vehicles. 132(1) When the word “walk” or an outline of a walking person is exhibited at an intersection by a pedestrian traffic control signal,a pedestrian may proceed across the roadway in the direction of the signal in a marked or unmarked crosswalk and has theright of way over all vehicles in the intersection or any adjacent crosswalk.

(3) When the word “wait”, the words “don’t walk” or an outline of a raised hand are exhibited at an intersection or at a placeother than an intersection by a pedestrian traffic control signal, (

a) a pedestrian must not enter the roadway, and (

b) a pedestrian proceeding across the roadway and facing the word “wait”, the words “don’t walk”, or anoutline of a raised hand exhibited after he or she entered the roadway (

i) must proceed to the sidewalk as quickly as possible, and (ii) has the right of way for that purpose over all vehicles. [31] If Ms. Brooks stepped off the sidewalk in a place that was not within the crosswalk, then she did not have the right of way andMr. Isadore cannot be convicted of failing to yield it to her. [32] Mr. Walker argued that if I was satisfied Ms. Brooks was in the crosswalk, then Mr. Isadore has the right to raise the defence ofdue diligence. He provided the following decisions to me: Enright v. Marwick, 2004 BCCA 259 , 2004 B.C.C.A. 259,Melgarejo-Gomez v.

Sidhu, 2002 BCCA 19 , 2002 B.C.C.A. 19, R. v Deck, 1997 CarswellBC 3224, [1997] B.C.J. No. 3034and Her Majesty the Queen v. Gallant, A.B.P.C. I was also provided with R. v. Emile, 2006 BCSC 839 ,[2006] B.C.J. No 1199, 2006 B.C.S.C. 839, 69 W.C.B. (2d) 689 from the Crown. [33] These cases were largely factually different from the one before me. In Enright, “right of way” was defined.

It is not definedin the Motor Vehicle Act and therefore the court looked to Black’s Law Dictionary for the following definition found at paragraph 21 ofthat decision: Right of way is also used to refer to a preference of one of two vehicles, or as between a vehicle and a pedestrian, asserting right ofpassage at the same place and time, but it is not an absolute right in the sense that possessor thereof is relieved from duty of exercisingdue care for his own safety and that of others. [34] The court also cited from Petijevich v.

Law, (SCC), [1969] S.C.R. 257, 1 D.L.R. (3d) 690, where at paragraph27 of the Enright decision the court quoted from pages 264 to 265 as follows: The reason he gave for not [yielding the right of way] was because he did not see her soon enough and he did not see her sooner becausethe lighting conditions at the intersection in question were such that the crosswalk area was a blind area to him as he came from thenorth.

His duty in those circumstances was to enter the intersection at such a speed and keeping such a lookout-out that if a pedestrianshould be in the crosswalk he would be able to yield the right-of-way to that pedestrian. [35] The court went on to find that Mr. Marwick was entitled to assume the pedestrian would obey the rules of the road and not enterthe crosswalk until it was safe to do so. The court was assessing liability in a civil case in that decision. [36] Similarly, Melgarejo-Gomez is also a civil case.

The court held the following at paragraph 25: [25] No provision in law requires a driver to exercise a duty such that one could say that Mr. Sidhu ought to have seen the pedestrianearlier. Regardless of whether Mr. Sidhu applied his brakes before or after striking Mr. Melgarejo-Gomez, one can assume he appliedthem upon first becoming of aware of the pedestrian. That is all that was required of Mr. Sidhu … [37] In this decision, it was a vehicle that had the right of way, not the pedestrian.

The court held the same principle applied, thatbeing the party lawfully within the intersection is entitled to assume that the other party will obey the law and yield the right of way. [38] That, of course, is not an absolute right. If the person with the right of way is able to determine in reasonable time that someoneelse has usurped the right of way, and the person with the right of way is able to yield it, they are obligated to do so. [39] The Deck decision was about a case occurring at an intersection where there was no pedestrian controlled light. It is useful forits citation of the Sault Ste.

Marie decision which establishes these types of offences as strict liability ones. It is a well-founded principle

that if a Defendant can show on a balance of probabilities that he responded reasonably to the circumstances, had a reasonable amount ofskill in driving a motor vehicle and exercised due care to avoid colliding with a pedestrian, that he could not be found liable. [40] The Gallant decision dealt with a pedestrian who was dressed in dark clothing as in the case before me. The driver wasproceeding at a reasonable speed in the circumstances but the pedestrian jogged across the street in her dark clothing. There was noevidence she checked for traffic before doing so.

The court considered the circumstances the Defendant was or should have been awareof. Perfection is not expected, but due diligence based on the standard of a reasonable man. The court said this at page 4 citing from theOntario Court of Appeal decision in R. v. Beauchamp, (ON CA), [1953] O.R. 422 at pages 176 to 77: The law does not require of any driver that he should exhibit perfect nerve and presence of mind, enabling him to do the best thingpossible. It does not expect men to be more than ordinary men.

Drivers of vehicles cannot be required to regulate their driving as if inconstant fear that other drivers who are under observation, and apparently acting reasonably and properly, may possibly act at a criticalmoment in disregard of the safety of themselves and other users of the road.

But the law does insist upon a reasonable amount of skill in the handling of a vehicle which is a potential source of danger to other usersof the road …The question always is ‘What would an ordinary prudent person in the position of the plaintiff have done in relation to theevent complained of?’ (Pollock on Torts uses the term “average man”). [41] The Emile decision set out circumstances where it possible that a driver could possibly escape liability for failing to yield theright of way to pedestrians.

However, the court noted that the duty on a driver is to proceed only when it is safe to do so. [42] In this case, Ms. Brooks was dressed in very dark clothing but she stepped into a crosswalk at a pedestrian-controlledintersection at a time when she had the right of way. It is evident that the light changed to a “Don’t Walk” signal almost immediatelythereafter. At that point, her obligation was to cross as quickly and safely as possible. [43] I accept Mr. Isadore’s evidence that he was not sitting a red light waiting for it to turn green, but already had a green light as he approached.

He proceeded down 6th Avenue and executed a left turn on the green light. I do not accept that he had to stop and wait forother vehicles to pass through the intersection as his sister testified. He did not see any of the pedestrians who had crossed from north tosouth, nor Mr. Sylvester who had been crossing from south to north. Most tragically, he did not see Ms. Brooks. [44] I find that Ms. Brooks was in the crosswalk when Mr. Isadore struck her approximately half way through the intersection. Hewas proceeding at a speed between 23 and 40 km/hr when he struck Ms. Brooks, throwing her to the ground. Mr.

Isadore did notexercise a reasonable amount of skill in the handling of his vehicle when he executed that turn. He was not the ordinary, prudent persondescribed in the cases. [45] Ms. Jensen, sitting in a parking lot looking towards 6th Avenue not only saw Ms. Brooks enter the crosswalk, but also saw Mr.Isadore strike her when she was half way across the intersection. Ms. Brooks was dressed in dark clothing, but she had the right of wayand she was visible. [46] I convict Mr. Isadore of failing to yield the right of way to a pedestrian as set out in Count 2. __________________________ S.D.

Frame Provincial Court Judge