Durham (Regional Municipality) v. Sturgeon, 2016 ONCJ 391

ONTARIO COURT OF JUSTICE DATE: 2016·06·29 COURT FILE No.: Regional Municipality of Durham 5223841Z CITATION: Durham (Regional Municipality) v. Sturgeon , 2016 ONCJ 391 BETWEEN: REGIONAL MUNICIPALITY OF DURHAM — AND — CHRISTOPHER JOHN STURGEON Before Justice of the Peace M. Coopersmith Heard on December 2, 2015 and March 14, 2016 Reasons for Judgment released on June 29, 2016 T. Best .......................................................................................................... for the prosecution C. Sturgeon ................................................ agent for the defendant Christopher J. Sturgeon JUSTICE OF THE PEACE COOPERSMITH: [ 1 ] Christopher Sturgeon is charged under

Part I of the Provincial Offences Act , R.S.O. 1990, c. P.33, with careless driving, contrary to

section 130 of the Highway Traffic Act , R.S.O. 1990, c. H.8. The offence is alleged to have occurred shortly after 9:00pm on November 21, 2014, at the intersection of Grandview Street North and Coldstream Drive in Oshawa. [ 2 ] The trial took place on December 2, 2015 and March 14, 2016. Georgia Boutsikakis, Bryce Kiberd and Durham Regional Police Officer Darren MacDuff testified on behalf of the prosecution. The defendant testified on his own behalf and was represented by his father, who is not a licenced paralegal, but is a former police officer with over thirty-two years of service. I. EVIDENCE OF WITNESSES: (

a) Evidence of Georgia Boutsikakis: [ 3 ] On Friday evening, November 21, 2014, Ms. Boutsikakis was headed home with her three children and a friend’s child in her motor vehicle. The weather was clear and the roads were dry. She testified that she was eastbound on Coldstream Drive behind a black BMW SUV motor vehicle. The intersection of Coldstream Drive and Grandview Street is controlled by four-way stop signs. As she was stopped behind the black BMW, she observed a gold van southbound on Grandview. It had stopped at the stop sign before the BMW stopped at its stop sign.

The van was starting to proceed through the intersection when the black BMW in front of her accelerated into the intersection, blocking the southbound lane. The driver of the BMW then slammed on his brakes and put his vehicle in park for five to ten seconds. The southbound gold van stopped, as it was blocked by the BMW. When the BMW did not move, the gold van cautiously drove in front of the BMW, through the intersection. Ms.

Boutsikakis was taken aback because she had children in her vehicle and was surprised to see the BMW behave in that manner. [ 4 ] As this was happening, a black pick-up truck northbound on Grandview was turning right onto Coldstream. As the pick-up truck cautiously and slowly made its turn and stopped eastbound on Coldstream, the black BMW again accelerated quickly and swerved to go around the truck but, instead, struck it. The rear passenger side of the BMW hit the front driver’s side of the bumper of the pick-up truck. [ 5 ] Ms.

Boutsikakis testified that the driver of the BMW was waving his arms and swearing, as he ranted that this was “fucking crazy” and was all the fault of the other driver and that he did not do anything. His words and actions scared Ms. Boutsikakis. It took another driver to tell the driver of the BMW to stop swearing and acting that way because there were children in Ms. Boutsikakis’ vehicle.

[ 6 ] Ms. Boutsikakis describes the manner in which the BMW was being driven as aggressive. She gave her name and information to the driver of the pick-up truck and then left the area. That weekend, she received a message that the police had tried to contact her. She called them back the following Monday. (

b) Evidence of Bryce Kiberd: [ 7 ] Mr. Kiberd testified that he was driving his black Ford pick-up truck northbound on Grandview in Oshawa. As he approached the intersection at Coldstream, he saw that a southbound van had arrived before him and then an eastbound BMW arrived. He stopped at his stop sign as he arrived at the intersection of Coldstream, intending to turn right when it was his turn. He could see what was going on in the intersection.

Before it was his turn to proceed, the BMW stopped abruptly in the intersection, blocking the southbound lane, and the driver began to yell profanities at an elderly couple in the southbound van. Mr. Kiberd thought the BMW driver was going to get out of his vehicle and go over to the van to start a fight. He had never before seen road rage to this extent, taking it out on these elderly people. [ 8 ] Mr. Kiberd made his right turn and pulled over to the side of the road to make sure the incident unfolding in the intersection did not escalate further.

As he was watching the end of the verbal altercation, the driver of the BMW put his vehicle in drive and quickly drove at Mr. Kiberd’s vehicle, in order to scare him. The driver of the BMW swerved at the last second, but hit the truck’s left front quarter panel and bumper and the left fog light with the passenger side of his vehicle. He stopped about twenty-five to fifty metres east of Mr. Kiberd and came running towards his truck with his arms flailing in a most unwelcoming manner. Mr.

Kiberd was quite annoyed after his truck was hit and after seeing someone who appeared to be in his thirties taking on a couple who looked to be in their eighties. He did not exchange information with the driver of the vehicle that hit his truck, as not only did he feel intimidated, but also that driver was refusing to provide Mr. Kiberd with his information. [ 9 ] Mr. Kiberd took photographs of the vehicles and then continued on to his friend’s house. The next morning, he went to the collision reporting centre. The driver of the BMW had not submitted a report prior to Mr. Kiberd’s visit to the reporting centre.

Ms. Boutsikakis, whom he did not know prior to this incident, had provided him with her cell number and he passed her number along to the police. (

c) Evidence of Durham Regional Police Officer Darren MacDuff: [ 10 ] On November 22, 2014, Officer MacDuff was working at the collision reporting centre in Durham. Bryce Kiberd arrived to report a motor vehicle collision that had occurred the previous evening at the intersection of Grandview Street North and Coldstream Drive in Oshawa. Mr. Kiberd had been driving a black Ford Ranger pick-up truck and he gave the licence plate number of the black BMW as BDYV 129. Officer MacDuff checked to find that no one else had previously reported this collision.

He contacted the owner of the black BMW, Christopher Sturgeon. [ 11 ] On November 23, 2014, Officer MacDuff spoke with Mr. Sturgeon. He viewed his driver’s licence, compared the photograph on it and was satisfied that the driver of the BMW was the defendant, Christopher Sturgeon. There had been damage to Mr. Sturgeon’s right back passenger door and right fender. [ 12 ] Officer MacDuff viewed the photographers of the damaged vehicles that the collision reporting centre staff had taken. He also had contacted Ms. Boutsikakis, having been provided with her cell phone number by Mr. Kiberd.

After completing his investigation, on November 27, 2014 the officer laid the

Part I charge of careless driving against the defendant. (

d) Evidence of Christopher John Sturgeon: [ 13 ] It was after 8:00pm on November 21, 2014. The sun was setting and the night was clear. Mr. Sturgeon was eastbound on Coldstream Drive, approaching the intersection at Grandview Street as the vehicle in front of him proceeded straight through the intersection. As he was pulling up to the stop sign, a westbound vehicle turned left in front of him. He stopped at the four-way stop by the construction near the school. Then it was his turn to proceed through the intersection, as the northbound and southbound traffic had proceeded through.

When he was halfway into the intersection, he testified that a southbound black van or SUV pulled out into the northwest quadrant of the intersection, honked the horn and stopped. The defendant then stopped in the southeast quadrant just past the centre line, and without putting his vehicle into park, rolled down his window, looked back and shouted profanities at this southbound vehicle. The front of the black van was less than a metre from the back of the defendant’s vehicle.

Where the defendant had stopped, he was past the southbound lane and not blocking the southbound vehicle. [ 14 ] When asked why he chose to stop and not continue through the intersection, given that he was already past the southbound vehicle’s path, the defendant testified that he thought perhaps the other driver was honking to be helpful and to tell the defendant that something was wrong with his vehicle, since he had a lot of failures with the car during the time he owned it, although he had owned it only a few months at the time of this incident.

He stated that the southbound black van had run the intersection and was blasting his horn so the defendant stopped and yelled “What the fuck do you want?”. When asked in cross examination why he stopped and yelled at this other driver who might be trying to assist him, his testimony changed, as the defendant then explained that the other driver yelled at him first, before he replied “What the fuck do you want?”.

When asked about the elderly people in the vehicle, the defendant first stated that he did not see who was in the vehicle, but then stated that he saw someone in their thirties with black hair. [ 15 ] There was another motor vehicle to the right of the defendant, waiting at the northbound stop sign. The defendant testified that as he proceeded through the intersection and was going through the crosswalk, the pick-up truck that had been to his right turned behind him into the eastbound lane and accelerated into the back of his vehicle. The defendant stated that he had attempted to swerve to avoid this truck.

However, he later also testified that he was unable to swerve due to oncoming traffic in the westbound lane. When asked in cross examination how he could see a vehicle towards the rear of his car, the defendant testified that he saw this large truck coming at his vehicle out of his peripheral vision. [ 16 ] The defendant pulled over to the right and Mr. Kiberd, the driver of the truck, got out of his vehicle and came over to ask “Oh, did my big bad truck hit your piece of shit import?” The defendant was upset as he got out of his vehicle to look at the damage to a

vehicle he had owned for only a few months. A verbal altercation ensued between Mr. Sturgeon and Mr. Kiberd. The defendant advisedthat he had asked, but Mr. Kiberd refused to provide his information. Instead, he got back into his truck, threatening to hit thedefendant’s vehicle again if the defendant did not get out of his way, then he spun his tires as he took off. The defendant had recordedpart of this verbal exchange on his cell phone and played it back in court. From the recording, it is clear that he had asked Mr. Kiberd foridentification, but Mr.

Kiberd refused to give it to him. [17] The defendant drove home after the incident and called 911 to report the collision and that the other driver had driven offwithout providing information to him. He had taken pictures at the scene and did have a picture of the plate of the other vehicle. At notime does the defendant recall seeing Ms. Boutsikakis at the scene that evening. He also questioned how Mr. Kiberd knew that one ofthe children in Ms. Boutsikakis’ van was not her child if the two witnesses had not discussed amongst themselves prior to the trial. II.

SUBMISSIONS [18] In his submissions, the defendant’s representative questioned how Mr. Kiberd knew Ms. Boutsikakis had her own and afriend’s child with her if they did not speak other than for Ms. Boutsikakis to provide her cell number to Mr. Kiberd. He also questionedhow the fog light on the front of the pick-up truck could have been damaged if the truck had turned right onto Coldstream Road ahead ofthe defendant. As a police officer for over thirty-two years, he had performed many accident investigations and the damage to thevehicles was inconsistent with Mr. Kiberd’s and Ms.

Boutsikakis’ version of the collision. [19] The defendant’s representative indicated that maybe it might be “start from stop position not in safety”, but there wasinsufficient evidence to prove careless driving, which is driving without due care and attention [20] The prosecution cited R. v. Beauchamp and indicated that careless driving shifts, depending on the circumstances and isviewed from what an ordinary, prudent driver would have done in the circumstances. Here, we had an aggressive driver who scared Ms.Boutsikakis and intimidated and threatened Mr. Kiberd.

Both of these witnesses say the defendant stopped abruptly in the path ofsouthbound traffic after stomping on the gas. Both of them witnessed the defendant aggressively yelling profanities at the southboundvehicle. Stopping in the intersection was not what a prudent driver would do. Accelerating quickly towards another vehicle was notwhat a prudent driver would do. [21] Mr. Kiberd testified that he was making a slow turn when the defendant accelerated a second time, swerving in an attempt toavoid him, but ending up hitting Mr. Kiberd’s truck.

The defendant was so focussed on everyone who was aggravating him thatevening, that he did not notice Ms. Boutsikakis or other witnesses around him. Both of the witnesses that testified observed thedefendant flailing his arms and heard his ongoing shouting and profanities. [22] Although I provided both parties with the opportunity to provide submissions under

section 55 of the Highway Traffic Act –included offences – nothing much more than reference to perhaps section 142(2) (start from stop position not in safety) and section148(5) (fail to turn out to the left to avoid collision) was provided to me. As will become apparent, there is no need to determine if thedefendant may have committed an included offence. III. RELEVANT LEGISLATION [23] Christopher John Sturgeon is charged with careless driving under

section 130 of the Highway Traffic Act. That

section reads: 130. Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care andattention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not lessthan $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or herlicence or permit may be suspended for a period of not more than two years. IV. FINDINGS [24] The defendant denied that his driving behaviour was of such a nature as to be considered careless driving. Mr.

Kiberd’s andMs. Boutsikakis’ versions of the defendant’s driving behaviour differ from that of the defendant. As issues of credibility have arisen, Iturn to the Supreme Court of Canada judgment, R. v. W.D., (SCC), [1991] 1 S.C.R. 742. It provides that if I accept theDefence evidence as it is a complete denial of an essential element of the offence, I would dismiss the charge. Further, even if I did notaccept the Defence evidence, I would have to go on to consider whether or not it raised a reasonable doubt and if it did, again, I woulddismiss the charge.

It would be only if I rejected the Defence evidence as there was convincing credible evidence that it was untruthfulor 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 therewas evidence that I did accept that established the defendant’s guilt on all of the charges before the Court beyond a reasonable doubt.

These are applications of our basic principles that everyone is presumed innocent until their guilt has been proven beyond a reasonabledoubt and that the burden rests on the prosecution throughout to prove that guilt. [25] For several reasons, I reject the defendant’s version of the incidents that took place around 9:00pm on November 21, 2014. Firstly, he was argumentative and inconsistent in his testimony. Moreover, the defendant’s testimony, unlike that of the independentwitness, was not always provided in a straight-forward manner, as he gave contradicting or ambiguous testimony on more than oneoccasion.

For example, he first testified that he rolled down his window and shouted to the southbound van “What the fuck do youwant?”. Later in cross examination, when asked why he would shout at a driver who was perhaps attempting to assist him or warn himof yet another failure of his motor vehicle, his testimony changed to say the southbound van driver yelled at him first. He first said hewas stopped in the intersection for five to ten seconds. Later, it was only about five seconds. When asked how far he had stopped fromMr. Kiberd’s truck, he responded that it was maybe two metres.

When questioned again about the distance because of what the videofrom his cellular phone had shown, he sarcastically retorted that he did not have a measuring stick with him. Also, he advised that thesouthbound vehicle honked at him when he was half way through the intersection, yet he was able to stop in a very short distance, by thetime he had just reached the crosswalk located on the east boundary of the intersection. He stated he did not see the people in thesouthbound van, but almost immediately after making this statement, he testified to describe someone in their thirties with black hair.

[26] As well, the defendant advised that he was passing through the crosswalk at the east side of the intersection when, in hisperipheral vision, he saw Mr. Kiberd’s truck turning right into the back passenger portion of his vehicle. Given the point of impact onhis vehicle starting at the back passenger door and scraping back to the back quarter panel, I am not convinced objects behind him wouldbe in his peripheral vision. [27] I do accept the evidence of Ms. Boutsikakis. She is an independent witness who had a clear view of the intersection. She hasno ulterior motive to be other than truthful.

Although she spoke with Mr. Kiberd prior to court, her testimony was very consistent andcredible. I find it interesting that the defendant does not even remember Ms. Boutsikakis at the intersection that night. Yet she had aclear recollection of what transpired and went so far as to provide Mr. Kiberd with her contact information, something she was under noobligation to do. She was driving directly behind the defendant and first observed him accelerating quickly and slamming on his brakes,as he blocked the southbound van and became enraged at the people in it.

It appeared as though the defendant was not happy with theorder in which the vehicles at the four-way stop signs at that intersection were taking turns proceeding through the intersection. Thedefendant was stopped near the middle of the intersection for between five and ten seconds. That was sufficient time for Mr. Kiberd tocautiously turn right onto Coldstream Road, in order to get out of traffic in the northbound lane. Ms. Boutsikakis also saw the defendantaccelerate quickly at Mr.

Kiberd’s truck stopped east of the intersection on Coldstream Road, then swerve to go around it, butmiscalculated and clipped the front of the truck with the back portion of his vehicle. Again, it is reasonable that the defendant did notlike Mr. Kiberd’s attempt to proceed through the intersection before he did, just as he had issues with the southbound vehicle proceedingbefore him. I accept Ms. Boutsikakis’ statement that the defendant’s driving was very aggressive and of such a nature that she had notever seen before.

I accept that the defendant’s actions and shouting caused her to be alarmed and fearful. [28] I accept some, but not all of Mr. Kiberd’s testimony. For example, he testified that he would have given his information tothe defendant had he been asked. I accept that he was asked and refused to do so. Most of the rest of his testimony re-enforced much ofwhat Ms. Boutsikakis had said. [29] The defendant was represented by his father who had retired with over thirty-two years as a police officer.

I am satisfied that,although he is not a licenced paralegal, his previous career would have exposed him to years of court proceedings and court procedure. Nonetheless, I find it curious that at no time did he put his son’s version of events or recordings from his son’s cell phone to any of theprosecution’s witnesses to provide them with the opportunity to explain the differences in their versions of events from that of his son. Consequently, I have weighted the evidence accordingly. V.

ANALYSIS [30] In determining the requisite standard of care and skill required of a motorist facing a charge of careless driving, I am guidedby the often cited Ontario Court of Appeal judgment, R. v. Beauchamp, (ON CA), [1953] O.R. 422, in which thestandard of care is not one of perfection. Instead, Justice MacKay, writing for the court, sets out the appropriate legal test as follows: “It must also be borne in mind that the test, where an accident has occurred, is not whether, if the accused has used greater careand skill, the accident would not have happened.

It is whether it is proven beyond a reasonable doubt that this accused, in the light ofexisting circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use thecare and attention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or givenin the circumstances?

The use of the term “due care”, which means care owing in the circumstances, makes it quite clear that, while thelegal standard of care remains the same in the sense that it is what the average careful man would have done in like circumstances, thefactual standard is a constantly shifting one, depending on road, visibility, weather conditions, traffic conditions that exist or mayreasonably be expected, and any other conditions that ordinary prudent drivers would take into consideration.

It is a question of fact,depending on the circumstances in each case.” [31] Two paragraphs later, Justice MacKay continues: “There is a further important element that must be considered, namely, that the conduct must be of such a nature that it can beconsidered a breach of duty to the public deserving of punishment.

This further step must be taken even if it is found that the conduct ofthe accused falls below the standard set out in the preceding paragraphs.” [32] There is no dispute that on November 21, 2014, around 9:00 in the evening, the defendant was driving eastbound onColdstream Road in Oshawa, at the intersection with Grandview Street North. For five to ten seconds, he stopped in the middle of theintersection and shouted profanities at a southbound van. He then accelerated quickly for a very short distance further through theintersection when his vehicle collided with Mr. Kiberd’s truck.

In the circumstances that existed that night, the defendant did not use thecare and attention or give others using the highway the consideration that a driver of ordinary care would have used. [33] Ms. Boutsikakis is an independent witness who was travelling just behind the defendant’s vehicle and had a clear view of theintersection. I have found no reason to reject as unreliable her testimony that it was the southbound van’s turn to proceed through thefour-way stop intersection when the defendant stepped on the gas and blocked that van.

His profanity and conduct scared this witnessand she was further surprized to see his continued erratic driving behaviour as he accelerated towards Mr. Kiberd’s truck and swervedtoo late to avoid the back of his vehicle swerve to strike the front of the pick-up truck. The defendant’s representative never providedMs. Boutsikakis the opportunity to agree with or rebut the defendant’s version of events. [34] The offence of driving carelessly is a strict liability offence. As expressed by Justice MacKay in the Court of Appealdecision in R. v.

McIvor, (ON CA), [1965] 2 O.R. 475; affirmed (CSC), [1966] S.C.R. 354, regardingthe application of the rule of strict liability: “Section 60 of the Highway Traffic Act, R.S.O. 1960, c. 172, [the predecessor to the current

section 130] prohibits a defined type ofconduct; it is silent as to intent or mens rea. In such case, the Crown need only prove that the accused committed the prohibited act andthe accused will be convicted unless he can show that the forbidden act was done without negligence or fault on his part.” [35] On the totality of the evidence before this Court upon which I can rely, I find that in the circumstances that existed, to include

the defendant quickly accelerating to block the southbound van who had the right of way to proceed before him through the intersection, to include his quick acceleration towards Mr. Kiberd’s truck that also went ahead of him through the intersection, to include the defendant’s shouting profanities in an enraged state of mind as he operated his vehicle, I am satisfied that the defendant “failed to use the care and attention” and failed “to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances” [ R. v. Beauchamp, supra ].

In no way can this conduct be characterized as momentary inattention or a simple error in judgment or mere inadvertent negligence insufficient to sustain a conviction for careless driving; I have examined the defendant’s conduct as a whole and have found numerous occasions as he passed through this intersection when the defendant displayed ‘careless’ actions and disregard for others using the roadway. I am satisfied that the prosecution has proved all of the elements of careless driving beyond a reasonable doubt and, further, that the defendant has not shown due diligence.

Moreover, in these circumstances, the defendant’s actions, both his erratic driving and words and attitude as he drove carelessly through this intersection in a manner somewhat akin to fits of road rage are deserving of punishment. VI. CONCLUSION: [ 36 ] There is no evidence which I accept and upon which I can rely to find reasonable doubt on a balance of probabilities.

In the circumstances, I find that the defendant’s driving conduct both in and just past the intersection of Coldstream Road and Grandview Street North in Oshawa was of such a nature that it can be considered careless driving and a breach of duty to the public deserving of punishment. [ 37 ] For the reasons I have provided, on the totality of the un-rejected evidence before this Court, I find the defendant, Christopher John Sturgeon, guilty of careless driving on November 21, 2014, contrary to

section 130 of the Ontario Highway Traffic Act . There will be a finding of guilt and a conviction will be registered. Released: June 29, 2016 Signed: “Justice of the Peace M Coopersmith”