R. v. Ariganello, 2011 ONCJ 889

COURT FILE No.: Burlington 087278 DATE: January 26, 2011 Citation: R. v. Ariganello , 2011 ONCJ 889 ONTARIO COURT OF JUSTICE BETWEEN: Her Majesty the Queen — AND — Ottavio Ariganello Before Justice of the Peace Macphail Heard on November 1, 2 2010 Reasons for Judgment released on January 26, 2011 N.

Chiera ............................................................................................................. for the prosecution T Thoma ................................................................................... for the defendant Ottavio Ariganello JUSTICE OF THE PEACE P.MACPHAIL BACKGROUND Ottavio Ariganello (‘Mr. Ariganello’ or ‘the Defendant’) is employed as a refrigeration operator at an ice arena in the Town of Halton Hills. On February 21, 2008 his workday had commenced at 5:30 am. He arrived at work at 5:15 am and left at approximately 1:15 pm to return to his home.

He was the driver and the sole occupant of a Volkswagen automobile. While travelling southbound on Winston Churchill Blvd in a semi-rural portion of the Municipality of Halton Hills, his car veered off of the travelled roadway and onto the right shoulder of the road and in so doing, struck and killed a pedestrian, Carolyn McTavish. Ms. McTavish was on the shoulder of the road and in the process of walking to her roadside rural mailbox. There were no independent witnesses to the collision. On May 7, 2008, and following an extended investigation by Halton Regional Police, Mr.

Ariganello was charged with the offence of Careless Driving, contrary to

section 130 of the Highway Traffic Act. Mr. Ariganello admits the actus reus of the offence. He states that a brief, sudden and never before experienced episode of intense coughing caused this driving behaviour. ISSUES BEFORE THE COURT The actus reus has been admitted. The court is left to determine the following: - Did the Defendant in fact experience the coughing episode as stated in his evidence?

- If so, was this coughing the reason why his vehicle left the travelled roadway. - Did the Defendants driving behaviour during this coughing episode meet the objective standards of what a reasonably prudent driver would have done in the circumstances disclosed by the evidence? - If not, was the driving conduct more than inadvertent negligence or a mere error in judgement and thereby deserving of punishment.

The fact that a death has occurred is not, except in unusual circumstances, relevant to an assessment of whether there has been a departure from the standard of care that would justify a finding of careless driving. The circumstances in the case before this court do not appear to call for special consideration on account of this death. EVIDENCE The Crown presented five witnesses, two of the investigating police officers, two individuals who stopped to assist after the collision and a friend and co-worker of the defendant. Dt. Cst. S. Anderson The Court first heard from Dt. Cst. S.

Anderson, a Collision Re-Constructionist, employed at that time with Halton Regional Police. He was accepted as an Expert in such matters for the purpose of his evidence in this proceeding. Office Anderson had prepared a Reconstruction Report as part his investigation. An amended version of this report was filed with the court. Officer Anderson told the court that his further training and experience since the completion of the initial report had caused him to reconsider one of his original conclusions.

He initially had classified the collision as a ‘ trajectory wrap-type’ collision, or one where the pedestrian became attached to the vehicle upon impact. His further training and experience caused him to reconsider this finding. He now classified this as ‘ wrap type’ collision. The result was that Officer Anderson significantly reduced his estimate as to the speed of travel of the Defendant’s vehicle at impact. It was now his opinion that speed did not play a role in the collision. The Reconstruction Report sets out a description of the scene location.

Paragraph 2 of page 6 of the Reports describes the roadway to the north of the area of the impact as follows: ‘ The area of impact, as depicted in figure 1.1, is at the bottom of a hill. Located north of the impact is a slight incline, which peaks at 0.1 km away. For a vehicle travelling southbound, prior to the crest of hill, there are several signs posted. The first sign posted is a “60 km/h begins” sign. The second sign is a “no passing sign” followed by a “pedestrian walking” sign. This visual sign is defined as “watch for pedestrians and be prepared to share the road with them”.

These signs are approximately 1 km north of the crest of the hill.’ He testified that Winston Churchill Road was a two lane highway at that location, one lane for each of north and southbound traffic, and was subject to a 60 km/h speed limit. He observed the road surface to be clear, with a salt or dirt film, and snow-banks at the roadside. The weather was sunny, with the sun in the west. He stated that when he first observed the Defendant’s car, the transmission was in the Drive position.

The vehicle was partially buried in a snow-bank on the west shoulder of the roadway and its’ forward progress arrested by a guide-wire for a utility post at the front of the vehicle.

He observed a satellite radio receiver attached to the front windshield. He subsequently started the car and observed the radio to be operating and at 40 percent volume. As part of his investigation, Office Anderson drove the Defendant’s vehicle over the same portion of the roadway. He concluded that there were no mechanical deficiencies with the car, that the satellite receiver posed no obstruction to visibility of the victim and that there was no unusual camber to the roadway that would have caused the car to veer off of the travelled roadway.

He identified tire marks on the shoulder of the roadway that were of the same tire tread pattern as the Defendant’s car. Those tires first left the travelled roadway at a distance of some 30.63 metres from the collision site and some 56.67 metres from the vehicles stopping point. The marks indicated evidence of some braking action but no tire lock marks were found, nor was there evidence of any Automatic Braking System activation. Defence challenged the reliability of certain aspects of Officer Anderson’s evidence. The witness was assisted by another officer in completing some of the measurements and diagram.

The witness could not explain which of the two officers conducted certain of the distance measurements, nor was he able to describe the qualifications of that other officer. He did state that all critical measures, including the distance of travel from the travelled roadway measures, were conducted by both he and the other officer working together. Defence also questioned the expertise of the witness in light of the subsequent reconsideration as to the collision characteristics and the resulting reduction in the estimate of speed. Cst. J.

Ivey Officer Ivey is one of the Halton Regional Police officers who attended the collision scene. It was he who interviewed the Defendant. He testified that he cautioned the Defendant before doing so and the Defendant appeared to understand the Caution. The interview took place over a two hour period. He stated that the interview took place while the Defendant stood outside of the officer’s police car. The Defendant declined the opportunity to sit in the police vehicle during the interview.

Officer Ivey testified that he observed a single episode during which the Defendant exhibited a ‘significant cough’ during which the Defendant was, at one point, bent over at the waist. The officer feared that the Defendant was about to vomit. He went on to testify that the cough was ‘convulsive’ in nature rather than a common cough. It occurred only the one time. Jennifer Colacci Mohammad Reza Sakkhordh Jennifer Colacci and Mohammed Reza Sakkordh were occupants of a southbound vehicle who stopped to render assistance following the collision. They did not observe the collision.

They testified that, as they approached, they observed the Defendant standing at the side of the road. Ms. Colacci attempted to render medical assistance to the victim, under the direction of the 911 Operator. Ms. Colacci confirmed that the road was dry and the weather sunny and cold. She also testified that, while travelling southbound they came over a ‘little hill’ and then could immediately see the Defendant standing at roadside. She estimated that from the crest of the hill, it took only a ‘few seconds’ to reach the collision scene. Mr.

Sakkordh was driving and he testified that he experienced no difficulty travelling in the southbound lane. Both spoke to the Defendant and each described their observation of the Defendant’s demeanour. Neither described any coughing or

sneezing by the Defendant. Ms. Colacci described the Defendant to be ‘calm’; Mr. Sakkhordh described the Defendant’s demeanour as one ‘in shock’. There were clear deficiencies certain of Mr. Sakkhordh’s recollection of the events. He testified that it was he who made the 911 call. A subsequent review of the audiotape of that call revealed that it was the Defendant who did so. Shawn Keating Shawn Keating is a lifelong friend and co-worker of the Defendant and was called as a Crown witness. His work shift overlapped with that of the Defendant on the day of the collision.

He stated that the Defendant had a heavy cough that day. He described the work environment of an arena to be ‘dehumidified’, with portions of the arena very cold and other areas quite hot. In consequence, he experienced a recurring cough some 3 to 4 times each season. He stated the Defendant was operating the Zamboni ice resurfacer that day and that he did not see any coughing that caused the Defendant to stop working. The Defendant called him from the collision scene, asking him to attend to render first aid assistance. He subsequently drove the Defendant home from the collision scene.

He did not question the Defendant that day, but did on the following day. He stated that the Defendant told him that he ‘started to cough, felt dizzy and hit a lady’. Ottavio Ariganello The Defendant elected to give evidence. He testified that he was returning from work, travelling southbound on Winston Churchill Road and was about 5 minutes from the arena. He has no major health issues and he felt fine when he left work, although he had a sore throat when he woke up that morning. He knows that road well and travels it daily. He knew the speed limit to be 60km/h. He was having no problem driving.

He had stopped just before the crest of a hill, behind a Canada Post private contractor in a silver vehicle delivering rural route mail. There were other vehicles behind him who also stopped. The road immediately behind him had been flat and straight. He drove around the Canada Post vehicle and, as he did so, he began to cough violently into his hand. The coughing began before he reached the crest of the hill. He closed his eyes, and place one hand over his face as he did so and never re-opened his eyes until after the collision.

The last visual observation that he made was that of the speedometer, which was reporting his speed to be 50 km/h. He was not able to see the driveway of the collision scene from the location where the coughing began. His coughing caused him to become light- headed and dizzy. He applied his brakes only lightly to slow as he was concerned about the vehicles following behind him. He veered off the road and hit what he thought to be a snow-bank. He estimated the entire coughing episode and time of travel as lasting only ‘ a couple of seconds’ .

In cross examination he allowed that he might have been travelling for a ‘ few seconds’ . He speculated that it may have been the camber of that

section of roadway that caused his vehicle to veer to the right and off of the travelled roadway. He did not know what happened to the vehicles that were following him. He recalled seeing several homes close to where he had stopped for the delivery vehicle and speculated that those other vehicles might have turned off in one of those driveways or into a nearby garden centre. When questioned on this point he stated that the garden centre was actually a ‘few hundred metres’ before where he stopped for the Canada Post vehicle.

He testified that he had never experienced coughing of this intensity and duration either before or after this event. The court heard no evidence as to any medical attention sought, any diagnosis obtained or treatment undertaken with regard to this coughing episode. He was not distracted by a radio or GPS devise and stated that his radio was not turned on. While he was able to estimate the time of travel, he was unable to estimate the distance from the crest of the hill to the collision scene. He stated that he continues to use this route to drive to and from work. SUBMISSIONS Defence Mr.

Thoma’s position can be summarized as follows: - The Defendants explanation is the only version of the events before the Court and that evidence is consistent with the explanation that it was the act of violent coughing that caused the Defendant to leave the travelled roadway and strike Carolyn McTavish . - Mr. Thoma referred to the decision of Justice Lenz in R. v. Kojar [1994] O J No.763 .

This was a Careless Diving decision where the Court held that a reasonable doubt will exist if the Court finds the Defendant’s evidence to be sufficiently credible that it might reasonably be true, or that the explanation might reasonably be true. - Mr. Thoma also asked the Court to consider the case of R. v. Oktem [1992] O.J. No.4167 as authority for the proposition that uncontested evidence must be entitled to some weight. The Court cannot simply disregard uncontested evidence. - The Court must weigh the Defendant’s explanation against any other evidence that could rebut the Defendants evidence – R. v.

Ying [1930] O.J. No. 120 . He stated that the Court heard no evidence that would rebut or contradict Mr.Ariganello’s version of the events that day. - If even some weight is given, the presumption of carelessness through the application of the rule in Hodges Case is rebutted and inoperable. Crown The Crown argued that this is not a completely circumstantial case, as the Court has the direct evidence of the Defendant to consider. The Court must first accept and then weigh this evidence. If carelessness is the only possible inference that follows from this weighing of this evidence the Court can convict. Mr.

Chiera cautioned that the Court ought not to ‘set the bar too high’ when assessing conduct. The Defendant is charged with the offence of Careless Driving and not the more serious crime of Dangerous Driving. Mr. Chiera spoke to the defence challenges to Officer Anderson’s evidence and stated that, while this evidence was helpful the Crown case did not rely upon it. The Court agrees with that submission. The Defendant had a duty to both those following him as well as those ahead.

The Crown submits that the evidence is that it took at least a few seconds, and not just the two seconds estimated by the Defendant, forthe Defendant to travel from behind the crest of the hill to the collision scene. That actual length of travel time speaks to more than amomentary lapse in attention. While the actions may have commenced with a momentary lapse, the coughing, the actions continued asthe Defendant drove some distance. His eyes remained closed and he failed to brake more heavily. The Defendant’s actions are notsimply a momentary lapse when those series of actions are considered together.

DECISION The Defendant’s testimony is the only evidence offered as to what caused Mr. Ariganello to drive off of the travelled roadway that day.The Court has carefully weighed this evidence and found that the Defendant’s evidence lacks an internal consistency and wascontradicted by other evidence heard. The primary focus of assessing credibility is the evidence presented. The court is primarily concerned with the reliability of the evidenceand not the sincerity of the witness. The decision in Farnya v.

Chorney (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.)established certain factors to be considered in assessing credibility. They include: - Opportunities for knowledge - Powers of observation - Judgment and memory - Ability to describe clearly what has been seen and heard - Consistency of the evidence with other evidence adduced at trial - Probability of evidence in relation to the surrounding events In that decision, Mr.

Justice O’Halloran summarized the weighing of credibility of evidence as follows: ‘The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existingconditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of theprobabilities which a practical and reasonably informed person would readily recognize as reasonable in that place and in thoseconditions’. The burden of proof for the actus reus does not rest with the Defendant.

Here the actus reus has been acknowledged and the Defendanthas asserted the defence of due diligence. The burden of proof does rest with the Defendant for this purpose. He must adduce sufficientevidence to establish due diligence on the balance of probabilities. The direction to the court established in R. v. W.(

D) has noapplication to the assessment of the due diligence defence in regulatory defences. It is against this framework and direction that the credibility of Mr. Ariganello’s evidence has been weighed. The Defendant testified that he began to cough as soon as he drove around the postal vehicle and that this occurred before he reached thecrest of the hill. He further stated that he closed his eyes as he began to cough and never re-opened them prior to the collision.

He statedthat the entire episode lasted only a ‘couple of seconds’ but subsequently acknowledged that the episode may have lasted for ‘several’seconds. He also testified that he observed the speedometer reading 50 km/h. Clearly it would have taken some period of time for his vehicle toaccelerate to that speed after passing the stopped delivery van. It is reasonable to conclude that he must have been travelling for severalseconds by the time that he observed his speedometer. His observation as to his speed is inconsistent with his testimony that he did notre-open his eyes as he coughed.

He stated that he chose to slowly apply his brakes as there was traffic following him yet he was unable to state what happened to this traffic. He speculated that those vehicles may have turned off into one of several driveways located between the crest of the hill and the collision location. The Defendant’s testimony as to both the time and distance of travel from the crest of the hill to the point of impact make this explanation implausible. The Defendant was consistent in his evidence that he applied his brakes ‘gently’ so as not to cause a collision with this following traffic.

Yet he also testified that, his highest rate of speed during this period of travel was 50 km/h. The Reconstruction Report states that the distance from the crest of the hill to the point of impact was approximately 0.1 km. The Defendant did not explain why this modest braking over the .1 km distance was not sufficient to significantly slow his car from an initial 50 km/h. Mr. Ariganello testified that his workplace environment causes him to develop a persistent cough several times each winter.

Yet he also stated that he had never before experienced a debilitating cough of this intensity, nor has he again since that day. The court heard no evidence that he sought a medical diagnosis or treatment for this episode Jennifer Colacci and Mohammad Reza Sakkhordh were the first people to speak with Defendant following the collision. Neither made reference to observing him coughing. There was no evidence that this coughing interfered with the Defendant’s ability to place the 911 call or speak with the emergency operator. The 911 tape recording of the 911 call was heard as part of the evidence.

At no time does the defendant exhibit a debilitating cough. The Defendant went on to place a telephone call to his friend, Shawn Keating. The court heard no evidence that the Defendant experienced any debilitating cough during this call. Officer Ivey testified that he did observe the Defendant experience one intense coughing episode but this episode occurred sometime after the time of the actual collision and subsequent to the time that the Defendant spoke with at least four other individuals.

It must be noted that Officer Ivey was engaged in an investigation of the collision and the cause during the time that the Defendant exhibited this single episode of intense coughing. The court must take into consideration the possibility that this was self-serving behaviour on the part of the Defendant. The Defendant testified that he was very familiar with this route and continues to use this roadway to travel to and from work.

Yet despite the fact that he continues to use this roadway, he was unable to provide any estimate of the distance from where he stopped for the Canada Post vehicle to the point of the collision. He was, however, able to estimate other distances on that route. For instance, he estimated the distance from a nearby garden centre as being ‘a few hundred metres’ away from where he stopped for the Canada Post vehicle. He testified that his windshield mounted car satellite radio was not turned on that day, nor was he checking a GPS device as he drove.

Officer Anderson testified that when he examined the car he observed that the car satellite radio was on and receiving a broadcast. The foundation of the Defendants defence rests with his coughing episode. It was so sudden, so intense and so long in duration that his actions in response ought to be viewed as those of a reasonably prudent driver when faced with the same set of circumstances. In such circumstances can his response of braking gently as he continued to drive on the southbound travelled roadway, with his eyes closed and one hand on the steering wheel be found to be duly diligent?

The evidence did not clearly establish where the Defendant stopped for the Canada Post vehicle but the Defendant does state that the location was north of the crest of the hill on the southbound travelled roadway. The Reconstruction Report states that this crest is approximately .1 km north of the collision location. Ms. Colacci testified that the collision location was visible to southbound traffic from this crest. The Defendant testified that he began to cough intently as he passed the Canada Post vehicle; that he closed his eyes as he did so and never reopened his eyes until after the collision occurred.

Concurrently he began to gently apply the brakes of his car, braking from an initial speed of 50 km/h. The court is satisfied that the Defendant travelled at least .1 km after passing the Canada Post vehicle and the actual distance was likely greater if one allows for the distance for the Defendants to accelerate to 50km/h as testified by him. The court was not provided with any evidence of the impact of this braking action on the speed of the Defendants vehicle.

However it is reasonable to conclude that a sustained gentle braking over at least a .1 km distance, from an initial speed of 50 km/h, would lead to a significant reduction in speed of the vehicle.

Did the Defendant experience the coughing episode that day? The court has insufficient evidence to assess the intensity and duration of the coughing episode. It can be noted that the Defendanttestified that he has never experienced this intense coughing before or since that day. There was no evidence that the Defendant soughteither a medical diagnosis or treatment for this condition. The first two witnesses to speak with him at roadside made no mention ofobserving any cough. There was no evidence that the cough interfered with his ability to conduct two telephone calls soon after thecollision.

The only other evidence of intense coughing is Officer Ivey’s observations. However, with no clear contradictory evidence, thecourt accepts that there was some coughing activity as the Defendant drove the last .1 km of his journey that day. Was this coughing behaviour the reason why the Defendant’s vehicle left the travelled roadway? Was this coughing the cause of the driving behaviour of driving off of the travelled roadway and striking Ms. McTavish? The court isunable to make this finding. The credibility of the Defendants explanation has been carefully assessed by applying the framework set outin Farnya v.

Chorney. The Defendants evidence was weighed for both internal consistency and reasonable consistency with the otherevidence heard. Defendant had an opportunity for knowledge of the events leading to the collision. With that accepted, the Court assessed Mr.Ariganello’s powers of observation, his memory of the events and his apparent ability to describe what had happened that day. The resultdisclosed serious inconsistencies in both his testimony and with other evidence heard in this proceeding. These inconsistencies presentserious weaknesses in his testimony as to the events of that day. To borrow the words of Mr.

Justice O’Halloran, the court finds that his testimony is not in harmony with the preponderance ofprobabilities which a practical and reasonably informed person would readily recognize as reasonable in that place and in thoseconditions. The court acknowledges that there may have been some coughing by the Defendant just prior to the collision but is unable to concludethat this coughing was the causation of Mr. Ariganello’s subsequent actions in leaving the travelled roadway.

Was the Defendant’s response and driving behaviour that of a reasonably prudent driver in the circumstances encountered as hedrove that final .1 km that day? (in other words, was the Defendant duly diligent?) The decision in R.v. Beauchamp (ON CA), [1953] O.R. 422 provides the principles and test within which to determinethe answer to this question. Beauchamp is the foundation upon which Careless Driving matters are decided in Ontario courts. In Beauchamp the court held that the test where an accident had occurred was not whether, if the accused had used greater care or skill,the accident would not have happened.

It is whether it is proved beyond a reasonable doubt that the accused, in light of the existingcircumstances of which he was aware or a driver exercising ordinary care should have been aware, failed to use the care and attention orto give to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances.

The use of the term ‘due care’ which means care owing in the circumstances, makes it quite clear that, while the legal standard of careremains the same in the sense of what the average careful man would have done in the circumstances, the factual standard is a constantlyshifting one, depending on the road visibility, weather conditions that exist or may reasonably be expected, or any other conditions thatordinarily prudent drivers would take into consideration.

It is a question of fact, depending on the circumstances in each case” Despite the fact that it was decided almost 60 years ago and was the facts contained speak to a less hectic driving environment, theprinciples and test enunciated have withstood judicial scrutiny during the intervening decades. This court has been directed by theBeauchamp framework and principles in reaching its decision. The Defendant drove that route frequently, travelling southbound as he would drive home from work. The Reconstruction report

establishes that there is signage warning those travelling southbound to be alert to possible pedestrian traffic. This sign was located approximately one km north of the crest of the hill. A reasonable driver would be aware of this sign and the caution of the message. Mr. Ariganello testified that he applied the brakes of his car only gently when the coughing commenced, as he was concerned about following traffic. Certainly a duty of care is owed to vehicles following immediately behind ones car. There is also a duty of care that must be shown to users of the road ahead of a driver.

Those users include both other vehicles and pedestrians. The Defendant had been alerted to the possible presence of pedestrians using this rural roadway. The Defendant testimony reveals that he took no action other than to brake gently. He did not open his eyes to look for traffic ahead. He continued to drive with only one hand on the steering wheel. He did not attempt to verify if there was traffic behind him. He did not attempt to move onto the shoulder of the road and stop. Instead, and over a distance of at least .1 km, he continued to operate and guide his car on the travelled roadway with his eyes closed.

It appears that he chose to react to the coughing encountered by closing his eyes, braking lightly and hoping for the best. This is not the conduct of a reasonably prudent driver in the circumstances encountered. Such a driver would be alert to the possibility of other users of the roadway, both behind and ahead of that driver’s vehicle. A reasonably prudent driver would have observed and taken note of the caution displayed in the sign warning of pedestrian traffic, and adjusted their driving behaviour accordingly.

Such a driver would have taken the first opportunity to slow safely and to re-open his eyes as quickly as possible, and deliberately passing off of the travelled roadway if required. The Defendant’s own evidence is that he took none of those steps. The Defendant’s evidence falls far short of that required to satisfy the court, on the balance of probabilities, that his actions were duly diligent. Was this driving conduct more that inadvertent negligence or a momentary error in judgement and thereby deserving of punishment?

The Defendant ought not to be penalized merely because he experienced a distracting coughing episode while driving. That momentary event could happen to any driver. That act could at least partially divert the drivers’ attention for a moment. Certainly the initial coughing could be no more than inadvertent negligence as there was no evidence that the Defendant ought to have anticipated the cough. The evidence before the court speaks to far more than

an act of inadvertent negligence or momentary error in judgment. The Court agrees with the Crowns’ submission that, although the cough may have initially led to a momentary lapse on the part of Mr. Ariganello, his reaction went on for at least several seconds. During a time he was travelling at a modest rate of speed that should have allowed him to react in a safe manner. The extended continuation of this driving behaviour took it beyond any reasonable definition of momentary lapse.

When the evidence is considered in its totality the Court is satisfied that the Defendant has failed to prove due diligence on the balance of probabilities and that the Crown has met it’s onus of proving the elements of the offence of Careless Driving beyond a reasonable doubt . There will be a finding of guilt and a conviction will enter. Released: January 26, 2011 Signed: “Justice of the Peace P. Macphail