R. v. McLean, 2011 ONCJ 378

COURT FILE No.: Kitchener 446099910864 DATE: 2010·02·26 Citation: R. v. McLean, 2011 ONCJ 378 ONTARIO COURT OF JUSTICE BETWEEN: R — AND — KELLY MCLEAN Before Justice of the Peace M A Cuthbertson Heard on 26 January 2011 Reasons for Judgment released on 16 June 2011 Charge: Careless Driving, s. 130 Highway Traffic Act Cases cited: R. v. Beauchamp, (ON CA), [1952] O.J. No. 495 R. v. Dey, [2010] O.J. No. 1731 R. v. Namink, [1979] O.J.

No. 317 Statutes cited: Highway Traffic Act, s. 130 E Costaris .......................................................................................................... for the prosecution K McLean ............................................................................................................. for the defendant JUSTICE OF THE PEACE CUTHBERTSON: 1: THE BACKGROUND [1] On 26 February 2010, Kelly McLean drove, along with some friends, to Kitchener from the Toronto area to pick upanother friend at a local restaurant. Ms McLean was driving a 1999 Grand Prix which she borrowed from her stepfather.

The weatherconditions were not ideal as it had snowed and the temperature was dropping. [2] After picking up the friend in Kitchener, Ms McLean with her four passengers drove back to the 401 to return toBrampton. After getting on the eastbound 401, the vehicle left the roadway near the exit for Townline Rd between 9:30 and 10:00 PM. Itstruck a lighting pole as it left the travelled portion of the roadway. No other vehicles were involved. Some of the people in the car wereinjured. Ms McLean was charged with careless driving. 2: THE LAW [3]

Section 130 of the Highway Traffic Act (HTA) of Ontario states: Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attentionor without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 andnot more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permitmay be suspended for a period of not more than two years.

3: THE EVIDENCE 3.1 The Prosecution Witnesses [ 4 ] Ms Emily Lemoine testified that she was a passenger in the middle of the rear seat of the car. On her left was David Edward and on her right Hank Edward. Ms Tiffany Moss occupied the front passenger seat beside the driver, Ms McLean. She was unsure as to the weather or road conditions just prior to the accident. They had been on the 401 for about ten minutes before the accident. [ 5 ] Ms Lemoine stated other drivers were travelling at approximately 50 kilometres per hour (kph) with their hazard lights on. The speed limit on the 401 in that area was 100 kph.

She stated Ms McLean was going just over 100 kph, as she had observed the vehicle’s speedometer a few minutes before the accident. She did not recall the specific speed of the vehicle immediately prior to the accident. Ms McLean’s driving did not cause her concern.

Their car had passed up to 5 vehicles which were in the right lane, just prior to the accident. [ 6 ] Ms Lemoine testified that Ms McLean had made a remark aimed at other drivers on the roadway, a few minutes before the accident, by stating – “If you can’t drive get off the highway”. [ 7 ] Ms Lemoine acknowledged in cross examination the slower vehicles which they passed could have been travelling more than 50 kph. Immediately prior to the accident, Ms Lemoine was focussed on her coffee and not otherwise paying attention. [ 8 ] Mr Randy Sangster attended a hockey game in Kitchener on the evening of 26 Feb 2010.

After the game ended at about 9:30 PM, he drove to the 401 and intended to exit at Townline Rd from the 401 to go to his home in Cambridge. He described the road conditions on the 401 as very slippery. He noted his vehicle slipped when changing lanes due to the icy conditions. He drove on the 401 at 40 to 50 kph, with extreme caution. He indicated many other vehicles had their four way flashers on and were travelling at speeds similar to his own. At Townline Rd, he observed a lone motor vehicle in the ditch.

He stopped to assist until the paramedics arrived. [ 9 ] Mr Jason Cooper also was on highway 401 in the Townline Rd area, at about 10 PM on the date of the accident. He described the road conditions as “…slushy, icy. There were slush ridge lines between the lanes. You could see distinct tire marks where the cars had driven”. These conditions had been consistent for the 4 to 5 kilometres since he entered the 401 at Hwy 24.

He stated he was only driving at 60 to 70 kph due to the road conditions but was comfortable at that speed. [ 10 ] As Mr Cooper passed the Townline Rd exit in the centre lane, he observed lights via his passenger side mirror, “coming up on him” in the lane to his right. As he passed the exit, he heard tires sliding on the ice. He then observed the tail lights of the vehicle which had been approaching at the passenger side of his vehicle. That vehicle left the roadway, struck a light pole and ended up in the ditch.

He stated his vehicle was the only one near it prior to it leaving the highway. [ 11 ] OPP Officer Moriarity was on patrol that evening on the 401 and happened upon scene but after the accident, at about 10:30 PM. He described the road conditions as not good. There had been an earlier heavy snowfall, followed by a lighter snowfall and light rainfall. He commented on the condition of the roads by stating “…they were slushy. There were ridges of slush that were built up along the edges or between the lanes so there – it was not ideal driving conditions.” [ 12 ] OPP Officer Bittner arrived at the scene at 11:29 PM.

He observed a black 1999 Pontiac Grand Prix motor vehicle bearing licence plate ANKH473 in the ditch at the Townline Rd exit of the 401 highway. Ms Kelly McLean identified herself as the driver of that vehicle. He received a statement from her, at 1:29 AM. The officer denied laying the charge against Ms McLean because of injuries suffered by at least one of the passengers in the vehicle during the accident. He acknowledged he had done three other collision investigations that evening where he did not lay charges. 3.2 The Defence Witness [ 13 ] Ms Kelly McLean testified she was driving the Grand Prix.

She stated that on her drive to Kitchener at the slower speeds of 40 kph due to the rush hour traffic and the poor weather, she “didn’t really feel how the car was handling”. After picking up a friend in downtown Kitchener she proceeded back to the eastbound 401. While on the ramp to the 401 she picked up speed and moved into the acceleration lane to pass some transport trucks which were in the right lane, as she felt safer in front of them. After passing the trucks at about 100 kph, she merged onto the 401 in the centre lane. [ 14 ] Ms Mclean experienced no difficulties while travelling in the centre lane.

She described the 401 road conditions as slushy. Despite somewhat confusing testimony on the time it took to get from downtown Kitchener to the 401 and then to the Townline Rd exit, she indicated she was on the 401 for approximately 10 minutes before the vehicle left the road. She indicated that she passed several other vehicles which had their hazard lights flashing. Her evidence on what vehicles she passed whether on the on-ramp and/or the 401 was a challenge to follow. [ 15 ] After passing a line of vehicles, Ms Mclean noticed a car was behind her. She decided to move into the right lane.

Initially she said she did not know her speed immediately prior to changing lanes. She then said she was unsure of how much less than 100 kph she was going when she decided to change lanes but thought it might have been 80 to 85 kph. [ 16 ] She began her move into the right lane when her car began to fishtail. She removed her foot from the gas pedal and was able to temporarily gain control, at which time a vehicle passed her. She then lost control again when she “made a wrong move with the steering wheel as well as taking my foot off the gas pedal…”.

In cross-examination, she stated she was fully in the right hand lane before the vehicle slipped. 3.3 The Collision Reconstruction Report [ 17 ] Both sides agreed the Collision Reconstruction Report from 26 February 2010 prepared by OPP Constable Anderson,

would be filed as an exhibit. [ 18 ] The report indicates no speed determination analysis was conducted. The driver Ms McLean, advised police her pre- impact speed was 100 kph. [ 19 ] The Collision Analysis states the Pontiac Grand Prix which was in the right lane approaching the Townline Rd exit began a clockwise rotation for an unknown reason. The vehicle departed the traffic lanes and entered the snow covered right shoulder of the highway. As the vehicle furrowed through the snow, the vehicle lost pieces of its fascia.

The driver’s rear side door impacted with a light pole causing intrusion damage into the rear passenger area of the car. The car then proceeded in a counter clockwise motion until it came to rest in the ditch. [ 20 ] The officer noted that between 4-6 PM there was an accumulation of approximately 2 inches of snow on the highway and the weather was mild with wet snow falling.

As time progressed the temperatures dropped and it began to freeze. [ 21 ] The time of the collision was noted as 10:05 PM and the area was well lit by artificial lighting. [ 22 ] Of the 47 crashes in the Cambridge OPP detachment’s patrol area that evening, weather and road conditions were noted to have played a role in 44 of those collisions. 4: ISSUES BEFORE THE COURT [ 23 ] The following issues require analysis: 4.1 Were the witnesses credible? 4.2 Did the injuries to a passenger in the cause the officer to lay a careless driving charge? 4.3 Did Mr Cooper’s vehicle pass Ms McLean’s vehicle? 4.4 Were the road conditions a factor in the collision? 4.5 Was the speed of Ms McLean’s vehicle a factor in the collision? 4.6 Did Ms McLean drive without due care and attention? 5: ANALYSIS 5.1 Were the witnesses credible? [ 24 ] The testimony of the police officers (Moriarity and Bittner) was aided by notes made at the time of the investigation.

They each had a recollection of the events but did not witness the accident. Their evidence was given in a straight forward manner and was not shaken in cross examination. I detected no air of partiality or self-interest. In my view, each made an honest attempt to assist the court with their evidence. I find them to be credible and their testimony to be trustworthy. [ 25 ] Ms Emily Lemoine, Mr Sangster and Mr Cooper were all in good positions to observe the matters to which they testified. They were not assisted by notes but had reasonable recollections of the events.

Each made an honest attempt to give impartial evidence. There evidence was not shaken in cross examination. I find each of them to be credible and their evidence to be trustworthy. [ 26 ] Ms McLean’s evidence was not aided by notes. She indicated she recalled the events but her time estimates, positions of vehicles on the on-ramp and/or the 401 were subject to change during her testimony.

Her evidence of slowing from 100 kph to 80-85 kph was contradicted by the statement of her speed (100 kph) made at the time of the accident which was included in the Collision Reconstruction Report, as well as Ms Lemoine’s testimony that she was driving at speeds of at least 100 kph on the 401. Her statement that she slowed after passing a line of vehicles so she could change lanes when a vehicle approached her from behind was problematic. Commons sense suggests that when changing lanes to get out of the way of an approaching faster moving vehicle, a driver slows after changing lanes not before.

Further she changed her story in cross examination, as to when the vehicle began to slip. Initially she testified it was when she began the lane change and then she stated it was when she was in the right lane after the lane change. Her testimony had the air of partiality as she tried to tailor her testimony to provide a ‘best case’ version of events. [ 27 ] This Court did not find her to be credible and I do not accept her evidence as trustworthy. 5.2 Did the injuries to a passenger in the cause the officer to lay a careless driving charge ? [ 28 ] The Defence speculated this was the case.

Officer Bittner denied that this was the basis for the charge rather he specified his decision to lay the charge was based on the unique circumstances of this investigation, only. [ 29 ] I accept Officer Bittner’s testimony as fact, having found him to be credible. In my view, the injuries sustained in the collision had no bearing on the charge laid. 5.3 Did Mr Cooper’s vehicle pass Ms McLean’s vehicle? [ 30 ] The suggestion that the vehicle which Ms McLean stated had passed her was Mr Cooper’s is not logical. Ms McLean by her own admission had been travelling at speeds up to 100 kph but no less than 80 kph.

Mr Cooper was travelling at most at 70 kph. [ 31 ] I accepted Mr Cooper as credible and I find his evidence to be fact. Therefore, it was not possible that he passed Ms McLean’s car.

5.4 Were the road conditions a factor in the collision? [32] The evidence of the witnesses whom I found to be credible satisfies me the road conditions were poor and deteriorating infreezing temperatures. The roads were icy and slushy with ridges of slush between the traffic lanes. Those witnesses who were drivingthat night all indicated they had slowed considerably due to the road conditions. [33] It was also clear from the witnesses that other drivers on the highway had adjusted their speed and driving circumstancesto fit the road conditions.

It was common ground that other trucks and cars alike were travelling at substantially reduced speeds withtheir hazard lights illuminated. These are indicia of the impact of the challenging road conditions on the other drivers on the 401. [34] I find the poor road conditions were a factor in the collision. 5.5 Was the speed of Ms Mclean’s vehicle a factor in the collision? [35] As noted above, the majority of drivers on the highway that night substantially reduced the speed of their vehicles to alevel they felt was safe.

Mr Sangster drove at 40-50 kph, Mr Cooper at 60-70 kph and Ms Lemoine stated other drivers were going atabout 50 kph. [36] The exception was Ms McLean. She travelled at 100 kph once on the 401. She made the disparaging statement towardsthe other drivers on the road who were driving at reduced speeds. This establishes her mindset while she was driving. She had nointention of slowing down regardless of the poor road conditions. [37] In my view, the speed of Ms McLean’s car was indeed a factor in the collision. 5.6 Did Ms McLean drive without due care and attention? [38] The Ontario Court of Appeal in R. v.

Beauchamp, (ON CA), [1952] O.J. No. 495 set out standards forthe offence of careless driving. In paragraph 18, the Court held: The standard of care and skill to be applied has been long established and is not that of perfection. It is, I think, correctly stated inMazengarb, op cit., at pp. 176-7, as follows: • "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 otherusers of the road. ...

The question always is What would an ordinary prudent person in the position of the plaintiff have done in relationto the event complained of?'" (Pollock on Torts uses the term "average man".) In paragraph 19, the Court stated: It must also be borne in mind that the test, where an accident has occurred, is not whether, if the accused had used greater care or skill,the accident would not have happened.

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

The use of the term "due care", which means care owing in the circumstances, makes it quite clear that, while the legalstandard of care remains the same in the sense that it is what the average careful man would have done in like circumstances, the factualstandard is a constantly shifting one, depending on road, visibility, weather conditions, traffic conditions that exist or may reasonably beexpected, and any other conditions that ordinary prudent drivers would take into consideration. It is a question of fact, depending on thecircumstances in each case.

The Court continued in paragraph 21: There is a further important element that must also be considered, namely, that the conduct must be of such a nature that it can beconsidered a breach of duty to the public and deserving of punishment. [39] With these findings from Beauchamp in mind, I consider the circumstances before Ms McLean on 26 February 2010 andher actions in response. The road conditions were icy and slushy which caused other drivers to substantially reduce their speed onhighway 401. An ordinarily prudent driver would have substantially slowed in those conditions.

Ms McLean verbally chastised the otherdrivers on the highway for being prudent by slowing. In contrast to their actions, she made the conscious decision to travel at 100 kph inthose conditions. [40] In R. v. Namink, [1979] O.J. No. 317, County Court Judge Killeen, held in paragraph 3 that excessive speed can be afactor in a careless driving charge when considering whether a driver has been driving in a normal and reasonable fashion. Similarly, inR. v. Dey, [2010] O.J. No. 1731, S.D.

Brown, a Judge of the Ontario Court of Justice, upheld a conviction for careless driving where thedefendant drove at an excessive rate of speed for the prevailing conditions. [41] I have already rejected Ms McLean’s testimony that she reduced her speed. From the evidence I do accept, I conclude MsMcLean was driving at a speed of 100 kph when she began to change lanes. [42] It cannot be said that Ms Mclean was speeding, as the legal limit on highway 401 is 100 kph.

However, in my view, thespeed at which she hit the slushy ridges between the lanes when she began to move into the right lane caused her vehicle to slip and her

to lose control. By applying the findings of Namink and Dey , I conclude her speed was excessive for the road conditions. By her own admission, she was unfamiliar with how the vehicle handled, especially in slushy and icy conditions.

By driving at excessive speeds while unfamiliar with the vehicle and in very poor road conditions, she was not driving as an ordinarily prudent driver should have. [ 43 ] Had I accepted her testimony, I still would find that a speed of 80-85 kph was excessive for the road conditions and her familiarity with the vehicle. 6: DECISION [ 44 ] This Court finds that Kelly McLean drove without due care and attention.

Ms McLean’s conduct was of such a nature to be considered a breach of duty to the public and deserving of punishment. [ 45 ] The prosecution has proven the essential elements of the offence beyond a reasonable doubt. A conviction will be registered. Released: June 16, 2011 Signed: “Justice of the Peace M.A. Cuthbertson”