Durham (Regional Municipality) v. Liu, 2018 ONCJ 206

ONTARIO COURT OF JUSTICE CITATION: Durham (Regional Municipality) v. Liu , 2018 ONCJ 206 DATE: 2018 03 21 COURT FILE No.: Region of Durham 7229427B BETWEEN: REGIONAL MUNICIPALITY OF DURHAM — AND — MENG YUAN LIU Before Justice of the Peace M. Coopersmith Heard on December 21, 2017 Reasons for Judgment released on March 21, 2018 T. McKinnon............................................................................................... for the prosecution P. Sutton........................................................................

Agent for the defendant Meng Liu JUSTICE OF THE PEACE COOPERSMITH: [ 1 ] On July 13, 2017, at Solina Road and Taunton Road in Clarington, Meng Liu was charged with the offence of “turn not in safety”, contrary to s.142(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8 [“ HTA ”]. For the reasons that follow, the charge against the defendant, Meng Liu, is dismissed. I. EVIDENCE OF THE WITNESSES [ 2 ] Wendy Hill, John Herr and Officer Dean Birmingham testified for the prosecution. Ms. Liu, the defendant, testified on her own behalf. (

a) Wendy Hill: [ 3 ] It was overcast and the roads were wet in the afternoon of July 13, 2017, when Wendy Hill was driving her two children back from Neb’s Fun World, returning home to Bowmanville. She drove her Black Dodge Caravan eastbound along Taunton Road, approaching Solina Road. She believed the speed limit was 80 kilometres per hour, but Ms. Hill was not going very fast because of the volume of traffic. At that location, the segment of Solina Road on the south side of Taunton Road is offset to the west of the segment that continues to the north.

There is a stop sign south of Taunton Road for northbound traffic. The defendant drove northbound from the segment of Solina Road that is south of Taunton Road, and turned right, to go eastbound in front of Ms. Hill. Instead of accelerating, the defendant stopped to turn left in order to continue northbound onto that segment of Solina Road. Ms. Hill saw the back brake lights of the defendant’s vehicle and slammed on her brakes, causing her ABS to engage. The vehicle behind Ms.

Hill hit her vehicle and her vehicle then went into the left rear corner of the defendant’s vehicle that had stopped and was waiting to turn left onto northbound Solina Road. (

b) James Herr: [ 4 ] At around 3:00pm that day, James Herr was driving his pick-up truck from Oshawa, eastbound on Taunton Road, returning home to Lakehurst, which is in the Kawartha Lakes area. It was a rainy day and the roads were wet. The traffic was bumper-to-bumper on Taunton Road, travelling around 15 kilometres per hour. For miles, he followed behind Ms. Hill’s vehicle and noticed that she was leaving a little bit of room between her and the car in front of her. The gap was not large enough for a vehicle to fit. At the location

where the collision occurred, a vehicle came out from the side road in front of Ms. Hill’s vehicle, wanting to go across Taunton Road andcontinue on the other part of the side road that did not line up with the segment of side road from which the car had emerged. However,there was not room for the driver of the vehicle emerging from the side road to do that, as the traffic was bumper-to-bumper going bothways on Taunton Road. [5] The vehicle in front of Mr. Herr stopped in time, without touching the vehicle that pulled out in front of it. Mr.

Herr stated thathe stopped in time, but another vehicle behind him pushed his vehicle into Ms. Hill’s vehicle, which then hit the defendant’s vehicle. The driver of the vehicle that hit the back of his vehicle then left the collision location. (

c) Durham Regional Police Officer Dean Birmingham: [6] Around 3:20 pm, on July 13, 2017, Officer Birmingham was dispatched to a motor vehicle collision on Taunton Road at SolinaRoad, in Clarington, Regional Municipality of Durham. Traffic was busy due to a combination of construction, road closures, detoursand roadwork on Highway 418 and Highway 407 in that general area. It was raining and roads were wet. Taunton Road is a throughroad, flat and straight, running east and west, with one lane in each direction. Solina Road is controlled by stop signs for northbound andsouthbound traffic.

It is flat and straight on both sides of Taunton Road; however, the northern portion of the road is offset a little bit tothe east of the southern portion. [7] Officer Birmingham identified the drivers of the three motor vehicles involved in the collision: Ms. Hill in a Dodge Caravan,Mr. Herr in a GMC Sierra pick-up truck and the defendant in a Toyota Corolla. He identified the defendant with a valid Ontario photodriver’s license as Meng Liu. He did not recall Mr. Herr advising him that he had been struck from behind by a fourth vehicle, nor that afourth vehicle was involved. [8] Mr.

Herr had advised the Officer that traffic was heavy, but travelling at the speed limit, which Officer Birmingham believedwas 60 km per hour. As they were coming up to the intersection at Solina Road, a car pulled out from the south side and turned rightonto Taunton Road. The van in front of Mr. Herr had no time to stop, nor did Mr. Herr. The van hit the car emerging from Solina Roadand Mr. Herr’s vehicle hit the van. (

d) Meng Yuan Liu: [9] On July 13, 2017, about 3:20 p.m., Ms. Liu was driving northbound on Solina Road. She stopped at the stop sign and signalledto turn right onto Taunton Road. It was a rainy afternoon and traffic was a bit heavy, travelling along Taunton Road at 60 kilometres perhour. She waited for one to two minutes and then saw a gap in the eastbound traffic along Taunton, with the oncoming vehicles about800 metres away. The defendant then felt it was safe for her to make her right turn onto Taunton. She turned slowed, at between 10 to15 kilometres per hour, taking about three seconds to make that turn.

She then drove about 30 metres. With her right turn signal on, shethen planned on making a left turn to continue along Solina Road, but had to stop and wait for oncoming traffic to clear. As she lookedinto her rear view mirror, she saw a vehicle stop behind her. Then after she had been stopped at least five seconds, that vehicle behindher started moving again, as it crashed into the back of her vehicle. The vehicle behind that vehicle had also been involved in thecollision. II. SUBMISSIONS (

a) Defence Submissions: [10] It is the Defence Agent’s submission that there is conflicting evidence and, hence, R. v. W.(D.) comes into play. Furthermore,he submits that the charge, ‘turn not in safety’, is the wrong charge, as the turn onto Taunton had already been completed and thedefendant was stopped on Taunton Road when the collision occurred. (

b) Prosecution Submissions: [11] The Prosecutor submits that Ms. Hill’s and Mr. Herr’s testimony are consistent. And, further, Ms. Liu pulled out onto TauntonRoad, but not without causing problems for other vehicles on that road. He submits that Ms. Liu’s evidence, her estimation of distancesand timing of events does not add up. Moreover, the defendant’s right turn from Solina Road onto Taunton Road caused emergencymanoeuvers by the other vehicles that were involved in the collision. Hence, the turn was not made in safety. III.

RELEVANT LEGISLATION [12] Subsection 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H8, reads: 142(1) Signal for left or right turn – The driver or operator of a vehicle upon a highway before turning to the left or right at anyintersection or into a private road or driveway or from one lane for traffic to another lane for traffic, or to leave the roadway shall first seethat the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signalplainly visible to the driver or operator of the other vehicle of the intention to make the movement. IV.

FINDINGS AND ANALYSIS [13] As there is some conflicting evidence, issues of credibility have arisen and I have applied the provisions of Regina v. W.(D.), (SCC), [1991] 1 S.C.R. 742. It provides that if I accept the defence evidence as it is a complete denial of an essentialelement of the offence, I would dismiss the charge. Further, even if I did not accept the defence evidence, I would have to go on toconsider whether or not it raised a reasonable doubt and, if so, dismiss the charge as well.

It would be only if I rejected the defenceevidence as there was convincing credible evidence that it was untruthful or unreliable, that I would go on to the third step in R. v. W.(D.)and consider all of the un-rejected evidence in this matter, to ensure there was evidence that I did accept that established the defendant’sguilt on the charge before the Court beyond a reasonable doubt.

[14] These are applications of our basic principles that everyone is presumed innocent until their guilt has been proven beyond areasonable doubt, that the burden rests on the prosecution throughout to prove that guilt, and that there is a very high burden to establishthe defendant’s guilt. [15] In determining whether to rely upon the testimony of the police officer and the other prosecution witnesses or that of thedefendant, I am mindful of the prohibition on treating the assessment of credibility as a credibility contest between the defendant and theprosecution witnesses and simply choosing that which I prefer and necessarily rejecting the other.

Keeping that prohibited reasoning inmind, I have been particularly careful to give all of the evidence fair consideration, to avoid any pre-mature acceptance of theprosecution evidence that would interfere with my assessing the possibility of being left with a reasonable doubt on the defendant’sevidence and the evidence as a whole. [16] Having applied the principles in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 and assessed credibility, I do havesome concerns with Ms. Liu’s estimate of time and distance. She testified that there was an 800 metre gap in eastbound traffic onTaunton Road.

She took about three seconds to slowly turn right onto Taunton Road and about one second to drive about 30 metreswhere she stopped for about five seconds, waiting to turn left onto the northern portion of Solina Road. Adding together, less than tenseconds elapsed from the time she began her turn onto Taunton Road until her vehicle was hit from behind. Although traffic was heavyon Taunton Road, Ms. Liu estimates that it was moving about 60 kilometres per hour. Hence, according to my calculations, Ms.

Hill’svehicle travelling at about 60 kilometres per hour would take forty-eight seconds to travel a distance of 800 metres to where thedefendant’s vehicle was stopped on Taunton Road. This is inconsistent with the defendant’s testimony that estimates less than tenseconds elapsed from when she started her turn onto Taunton Road until the collision occurred. Consequently, I do not accept Ms. Liu’stestimony regarding these times and distances. [17] Mr. Herr told Officer Birmingham that he believed the traffic was heavy but, nonetheless, travelling about 60 kilometres perhour.

At trial, his statement changed, as he testified that traffic was bumper-to-bumper and travelling around 15 kilometres per hour. Aswell, in July 2017, he advised the officer that he had no time to stop, whereas at trial, on December 21, 2017, he stated that he was ableto stop behind Ms. Hill’s vehicle, but the vehicle behind him pushed him into her vehicle, causing her to hit the back of the defendant’svehicle. As of result of these inconsistencies, I am unable to give much weight to Mr. Herr’s testimony. [18] Nonetheless, consistent with my findings below, I do accept that Ms.

Hill left a gap in the traffic sufficient to allow Ms. Liu tocomplete her right turn onto Taunton Road and drive about 30 metres before stopping, facing eastbound on Taunton Road, waiting forwestbound traffic to clear before she could turn left onto Solina Road. [19] I find that on July 13, 2017, around 3:19p.m., the defendant was driving her motor vehicle northbound on Solina Road inClarington. Traffic on Taunton Road was heavy and she stopped for a couple of minutes at a stop sign where the southern portion ofSolina Road meets Taunton Road.

Seeing a gap in the eastbound traffic, she turned right onto Taunton Road and drove about 30 metres,at which time she stopped in order to allow oncoming westbound traffic to clear prior to turning left onto the northern portion of SolinaRoad. Both Ms. Hill and the defendant testifies that Ms. Hill, in the eastbound vehicle behind the defendant, was able to slam on herbrakes and stop prior to colliding into the back of the defendant’s vehicle. Furthermore, whether Mr. Herr stopped in time behind Ms.Hill’s vehicle and was pushed into the back of her vehicle by another car behind him, or whether Mr.

Herr did not stop in time and droveinto the back of Ms. Hill’s vehicle, the end result is that Mr. Herr’s vehicle pushed Ms. Hill’s stopped vehicle into the back of thedefendant’s stopped vehicle. I find that at least one and, perhaps, two vehicles were able to stop behind the defendant’s stopped vehicle. V. CONCLUSION [20] Applying my findings to the legislation in s.142(1) of the HTA, I am satisfied that, on July 13, 2017, Ms. Liu was operating hermotor vehicle in Clarington on Solina Road and, before turning right onto Taunton Road, she saw that this turn could be made safely.

She was able to turn into the gap in traffic in front of Ms. Hill’s motor vehicle. She then fulfilled her obligation to stop on Taunton Roadand wait for westbound traffic to clear before turning left to go north on Solina Road. Although Ms. Hill had to slam on her brakes, shewas able to stop her vehicle without a collision occurring. After that, Mr. Herr’s vehicle either drove into or was stopped and thenpushed into Ms. Hill’s stopped vehicle, pushing it into Ms. Liu’s stopped vehicle. This latter event by a vehicle two or three cars behindMs. Liu’s vehicle, is what triggered the collision.

I am satisfied that, when the collision occurred, Ms. Liu had already completed herright turn safely from Solina Road onto Taunton Road. [21] The charge of “turn not in safety”, under s. 142(1) of the HTA, against Meng Liu, therefore, is dismissed. Released: March 21, 2018 Signed: Justice of the Peace M. Coopersmith