R v Heap, 2023 ABCJ 177

In the Alberta Court of Justice Citation: R v Heap, 2023 ABCJ 177 Date: 20230906 Docket: 211059811P1 Registry: Calgary Between: His Majesty the King - and - Graham Paul Heap Judgment of the Honourable Justice A.A. Fradsham Introduction [ 1 ] Mr.

Heap is charged on a single Information that he: “On or about the 24 th day of May, 2021, at or near Calgary, Alberta, being the operator of a motor vehicle on a highway, did unlawfully fail to yield to a pedestrian in a crosswalk, contrary to section 41(1) of the Rules of the Road Regulation under the Traffic Safety Act ” (Count 1), [ 2 ] and that he: “On or about the 24 th day of May, 2021, at or near Calgary, Alberta, being the operator of a motor vehicle on a highway, did unlawfully drive in a manner that constituted driving carelessly, contrary to section 115(2)(

b) of the Rules of the Road Regulation under the Traffic Safety Act ” (Count 2). [ 3 ] It will be noted that Count 2 erroneously refers to section 115(2)(

b) of the “Rules of the Road Regulation under the Traffic Safety Act ”. It is not the Use of Highway and Rules of the Road Regulation (Alta. Reg. 304/2002 ) which applies; rather, it is section 115(2) (

b) of the Traffic Safety Act which sets out the definition of “driving carelessly”, and it is section 157(1)(

a) of that Act which makes “driving carelessly” a contravention of the Traffic Safety Act . No objection was taken to the wording of Count 2, and I am satisfied that section 157(3) (

b) of the Traffic Safety Act satisfactorily addresses any deficiency in the wording of the Count. [ 4 ] There is no dispute that these charges arise from a collision which occurred on May 24, 2021, shortly after 10:10 pm, at the intersection of Deer Ridge Drive S.E., and Canyon Meadows Drive S.E., in Calgary, Alberta, between a motor vehicle operated by Mr.

Heap and a pedestrian (Ms. Billi Oliver). Tragically, Ms. Oliver died. Issues [ 5 ] The issues to be resolved are (1) whether the Crown has proven beyond a reasonable doubt that Mr. Heap failed to yield a pedestrian in a crosswalk (which will involve determining whether the Crown has proven beyond a reasonable doubt that there was a pedestrian in a crosswalk), and (2) whether the Crown has proven beyond a reasonable doubt that Mr. Heap drove his vehicle “carelessly” (i.e., “without due care and at tention”, or “without reasonable consideration for persons using the highway”).

In relation to this issue, since there is no doubt that the vehicle operated by Mr. Heap struck one of two pedestrians present at the intersection, and since Mr. Heap candidly admits that he did not see either of those pedestrians, the issue boils down to whether, in the circumstances of this case, that failure to see the pedestrians proves beyond a reasonable doubt that Mr. Heap drove “carelessly” as that term is defined in the Traffic Safety Act .

Facts [ 6 ] I will set out my findings of fact, and, since some of the evidence led at trial was conflicting, I will explain, where necessary, how I have assessed that conflicting evidence. [ 7 ] On May 24, 2021, at approximately 10:10 pm, two sets of people (Mr. Ian Howe and Ms. Billi Oliver, as a couple, and Mr. Heap, as an individual), unknown to each other, were each engaged in what to them were routine activities. Mr. Howe and Ms. Oliver were walking their dog, and Mr. Heap was in the process of leaving work having completed his 6-hour shift at a retail shop.

Within a very few minutes, tragic, life altering events would engulf them. [ 8 ] Mr. Howe and Ms. Oliver were walking in an easterly direction on the sidewalk on the north side of Canyon Meadows Drive. They were walking their dog, as they did each night, and were following their usual route. They approached the intersection of Canyon Meadows Drive and Deer Ridge Drive. [ 9 ] I am satisfied that Ms. Oliver was wearing dark coloured clothing. [ 10 ] Mr. Howe testified that he was wearing a light-coloured pair of jeans. However, Trent Lacey, one of the responding firefighters who attended to Ms.

Oliver until the ambulance arrived, testified that Mr. Howe was wearing dark clothing. [ 11 ] Mr. Howe testified, in reference to Ms. Oliver, “I believe she didn’t have her hood up either. And she had blonde coloured hair.” Firefighter Lacey testified that Ms. Oliver “had a hood on, a black hood…and I recall her having dark hair.” [ 12 ] I accept the evidence of Firefighter Lacey on these points. For reasons I will set out later, I find Mr.

Howe’s evidence on these and other points to be unreliable. [ 13 ] Canyon Meadows Drive runs in an east-west direction, and intersects with Deer Ridge Drive which runs in a north-south direction (south of the intersection, the north-south road is called Deer Ridge Drive, but north of intersection that north-south road is called Queensland Drive). For simplicity, I will refer to the north-south road as Deer Ridge Drive. Being on the sidewalk on the north side of Canyon Meadows Drive, and having approached from the west heading east towards the intersection, Mr. Howe and Ms.

Oliver were therefore at the northwest quadrant of the intersection of Canyon Meadows Drive and Deer Ridge Drive (“the intersection”). [ 14 ] The sidewalk upon which they were travelling is bounded on the north by a grassy area. [ 15 ] On the west side of the intersection, Canyon Meadows Drive is made up of 6 lanes. There are four through lanes (two lanes going west and two lanes going east).

On the west side of the intersection, a concrete median divides the west-bound and east-bound lanes on Canyon Meadows Drive. [ 16 ] On the west side of the intersection, and south of the concrete median dividing the east and west bound lanes, there is a lane which allows east bound Canyon Meadows Drive traffic to turn north onto Deer Ridge Drive (as previously noted, the road is called Queensland Drive north of the intersection). [ 17 ] On the west side of the intersection, and south of the two east bound lanes on Canyon Meadows Drive, there is an additional lane which allows east bound vehicles on Canyon Meadows Drive to turn south onto Deer Ridge Drive. [ 18 ] Therefore, a pedestrian crossing Canyon Meadows Drive, at the intersection, from the north to get to the south side of Canyon Meadows Drive, must cross the two west bound lanes, the concrete median, the lane which allows traffic to turn north onto Queensland Drive, the two east bound lanes, and the turn lane leading from Canyon Meadows Drive to the most westerly south bound lane of Deer Ridge Drive. [ 19 ] For the purposes of description, I will notionally number the lanes sequentially with the most northerly west bound lane on Canyon Meadows Drive being “lane 1”, and, at the south part of the intersection, the east bound lane on Canyon Meadows Drive which allows eastbound Canyon Meadows traffic to turn south onto Deer Ridge Drive, being “lane 6”. [ 20 ] There is a crosswalk, marked by two parallel painted lines, on the west side of the intersection of Canyon Meadows Drive and Deer Ridge Drive, which provides a path for pedestrians to cross Canyon Meadows Drive (going either north to south or south to north).

At the north end of the crosswalk, those two parallel lines end at the sidewalk which runs east-west along the north side of Canyon Meadows Drive; they form a right angle with the sidewalk. I will refer to that crosswalk as “the west crosswalk”.

[ 21 ] If one were to extrapolate through the west sidewalk the west parallel line which marks the west crosswalk, just before the north border of the sidewalk one would come to the location of a light standard upon which there is a button for pedestrians (“pedestrian activation button”) to push in order to activate the traffic control signals for pedestrian traffic in the west crosswalk. [ 22 ] Mr. Kevin Weerahandi, who is professional engineer employed as a Traffic Engineer by the Signal Engineering Traffic Division of the City of Calgary, testified at the trial. I accept his evidence.

From him, I learned, and accept, that the traffic signals at the intersection of Canyon Meadows Drive and Deer Ridge Drive/Queensland Drive S.E. were operating properly on May 24, 2021. [ 23 ] With some exceptions which I will note, it is not possible to now determine the length of time of each of the signals governing the west crosswalk at the relevant times, but the following is known, and I accept it to be accurate: 1.

The sequence of traffic signals for the west crosswalk is: steady “don’t walk” display; “walk” display; flashing “don’t walk” display (which lasts for 18 seconds); steady “don’t walk” display. 2. It is necessary for a pedestrian to activate the sequence by pushing the pedestrian activation button. 3.

The sequence of traffic signals for the northbound left turn lane (from Deer Ridge Drive onto westbound Canyon Meadows Drive is: a green arrow display allowing vehicles to turn left onto westbound Canyon Meadows Drive (for a minimum of 7 seconds); an amber display (for 3 seconds); a green display for left turning vehicles; an amber display for 3.5 seconds; a red display for 3 seconds; a red display until a vehicle activates the sequence again. 4. During the time that the west crosswalk has either a “walk” display or a flashing “don’t walk” display, the northbound left turn lane has a green display. 5.

During the time that the west crosswalk has the steady “don’t walk” display which immediately follows the flashing “don’t walk” display of a minimum of 18 seconds, the northbound left turn lane has an amber display for the first 3.5 seconds and a red display for the remainder of the time of the steady “don’t walk” display. [ 24 ] Mr. Howe testified, and I accept, that he and Ms. Oliver went to the pedestrian activation button and one of them pushed it. Two northbound vehicles turned left from Deer Ridge Drive onto westbound Canyon Meadows Drive.

The pedestrian traffic signal went from “don’t walk” to a “walk” display. Mr. Howe and Ms. Oliver stepped off the curb into lane 1 of westbound Canyon Meadows Drive. Ms. Oliver was to Mr. Howe’s left. The dog was to Mr. Howe’s right. In other words, as Mr. Howe, Ms. Oliver, and the dog travelled south across Canyon Meadows Drive, Mr. Howe was to the west of Ms. Oliver, and the dog was to the west of Mr. Howe. [ 25 ] When Mr. Howe and Ms. Oliver were approximately one-half of the way through lane 2 of westbound Canyon Meadows Drive, Ms.

Oliver was struck by a 2009 Blue Hyundai Accent motor vehicle (“the Hyundai”) turning left from northbound Deer Ridge Drive onto westbound Canyon Meadows Drive. The Hyundai was operated by Mr. Heap. [ 26 ] The collision between the Hyundai and Ms.

Oliver resulted in her being propelled and coming to rest several metres to the west of the light standard with the pedestrian activation button, and on the grassy area abutting the north edge of the sidewalk on the north side of Canyon Meadows Drive (with her head on the sidewalk). [ 27 ] There is conflicting evidence about the weather and the amount of daylight at the time of the collision. [ 28 ] Mr. Howe described the weather as a “light drizzle”, and as “a very, very light drizzle that night.” [ 29 ] As to daylight, Mr. Howe said: “…it’s not 100 per cent dark yet.

It’s the end of May, so it’s getting dark, but not quite dark/dark yet.” [ 30 ] Captain Rinas of the Calgary Fire Department was the supervisor of Station 19, and his duty apparatus was Engine 19 which responded to the call for service in relation to the collision. He said, and I accept, that the call for service was received at approximately 10:15 pm and that he and his colleagues arrived on scene at approximately 10:17 pm. [ 31 ] Captain Rinas said: “it was a very dark, rainy night….I’d describe it as a heavy rain. There – we noticed a lot of glare on the roads in – from the streetlights that night.

Visibility was limited, not by the rain, but just by the – the amount of glare that was being produced.” [ 32 ] When asked about the lighting, Captain Rinas said: “Yeah, it was pretty dark. It was – it was really dark.

And it was – one of my – one of my considerations as a supervisor for the Fire Department is to protect my – my scene and to protect my individuals and, just with many years of experience, I can tell you that rainy nights with dark roads, people are hard to see, even firefighters wearing turnout gear, so scene safety is always a consideration of -- of mine so I pay careful attention to where we spot our apparatus….” [ 33 ] In cross-examination, Captain Rinas said: “…my recollection is – is that it was virtually nighttime with the weather conditions.” [ 34 ] He was asked: “And with regard to the glare, you mentioned that the roads – that there was a lot of glare on – on the roads – and that that was the reason that there was limited visibility; is that correct?” [ 35 ] Captain Rinas replied: “With the water of the windshield of the – the vehicle, it was a consideration.

And, yeah, the glare coming from the road that was caused by the streetlights reflecting off of the wet surface was – it was kind of a challenge that night.” [ 36 ] Mr. Heap testified that it was “pouring with rain”; “it was raining hard”; “windshield wipers going at full blast.” [ 37 ] Two sets of CCTV film footage, taken at the time of the collison from a Co-op Gas bar which occupies the parcel of land which has Canyon Meadows Drive as its north boundary and Deer Ridge Drive as its east boundary (i.e., it is the parcel of land at the

south-west corner of intersection), were entered into evidence. Neither piece of film footage shows the intersection itself, but collectively they do give a brief view of vehicles going north on Deer Ridge Drive approaching Canyon Meadows Drive, and a brief view of vehicles travelling west on Canyon Meadows Drive west of its intersection with Deer Ridge Drive. The Crown submitted that the film footage does not disclose heavy rain falling at the time of the collision. I do not find that CCTV film footage conclusive on that point.

I find it difficult to measure the intensity of rain falling at a distant point based on film footage taken from a covered area (the gas bar). I find the observations made by people who were there at the time to be more reliable. [ 38 ] Mr. Howe described the rain as a “light drizzle”. I do not find his evidence on that point to be reliable. In my view, Mr. Howe’s evidence on matters which related to the visibility of himself and Ms. Oliver was consistently distorted seemingly to counter any suggestion that he and Ms. Oliver would have been difficult to be seen by motorists.

His statements about the colour of the clothes he was wearing, whether Ms. Oliver was wearing a hood, the colour of her hair, and the amount of daylight at the time of the collision, were all contradicted by other evidence which I found to be reliable. I find his evidence as to the intensity the rainfall at the time of the collision to be similarly unreliable, and I do not accept it. [ 39 ] Both Captain Rinas of the Calgary Fire Department and Mr. Heap testified that it was raining heavily. I find their evidence to be reliable, and I accept it.

I also accept as accurate Captain Rinas’s statement that the heavy rain and the glare from the reflection of streetlights on the wet road adversely affected visibility. [ 40 ] In cross-examination, Mr. Howe was asked if he and Ms. Oliver were walking “faster than normal” when walking across Canyon Meadows Drive. He testified that they were walking at a “normal pace.” For the reasons I have earlier set out, I do not find Mr. Howe’s answer to the question as to how fast they were walking across the road to be reliable. [ 41 ] While Ms. Oliver and Mr. Howe were walking east along Canyon Meadows Drive, Mr.

Heap was finishing his work duties at the retail store at which he worked. [ 42 ] Mr. Heap testified, and I accept, that he worked at the Ace Liquor store which is located in a retail shopping area on the west side of Deer Ridge Drive, south of the intersection of that road with Canyon Meadows Drive. On the day of the collision (May 24, 2021), his work shift was from 4:10 pm to 10:10 pm [ 43 ] Mr. Heap’s duties were to serve customers and re-stock shelves (as time permitted). He consumed no alcohol on the day of the collision. [ 44 ] At 10:10 pm, Mr.

Heap clocked out on the computer, entered his code into the security alarm system to arm it, turned out the lights, and left the store. As he did so, he activated a mechanism which lowered blinds on the store window and he locked the store. [ 45 ] He walked to his car which was parked some 8 to 10 feet from the store, got into his car, and began his drive home. It was 10:12 pm when he was ready to drive from the store’s parking lot. [ 46 ] He turned left onto Deer Ridge Drive and proceeded north on that road.

As he approached the intersection of Deer Ridge Drive and Canyon Meadows Drive, the traffic light facing him was green; he was travelling at approximately 50 km/h (the speed limit was 50 km/h). He turned on his left signal light and applied his brakes. [ 47 ] His testified that: “Well, I applied them – I applied them softly at first as I’m approaching the intersection because I’m – I’m also looking over to the left to make sure nobody’s crossing the crosswalk. And as I get closer to the intersection then I apply them a little harder because I’m starting to turn.” [ 48 ] In examination-in-chief, Mr.

Heap described his approach to the intersection and the collision in these words: 1. “I would have been doing 50, 45 to 50” when he first applied his brakes. 2. “I would have slowed down to --…I was probably doing 40 when I applied the brakes a little harder…I was starting to make the turn…” 3. “…I pressed them [the brakes] a little harder and looked at the crosswalk to make sure nobody was crossing and I – there was nobody in the crosswalk.

So, I turned the corner.” 4. “…I’m obviously looking for pedestrians because that’s a four lane crosswalk there. 5. “So, I’m looking to see that there’s nobody crossing on a green light….Well, again, looking at the pedestrians, I’m obviously also making sure that the – it doesn’t have a walk light on the – on the set of lights that says walk or don’t walk. There was no white light, all I saw was a red light, which is the don’t walk signal.” 6. “I always turn into the left-hand lane, I don’t do what a lot of drivers do and just go over to the right, I always turn into the left.

So, I would have seen the corner of the median, and that’s it, I still didn’t see any pedestrians.” 7. “As soon as I made that turn there was an impact on my vehicle….Well as soon as I got around the corner. It might have been as I was going around, no, I’d already turned the corner, yes.” 8. “…I’m turning close to the median…I didn’t see anything…I didn’t see any person…I didn't see anybody, that’s if I had seen somebody I would have put my brakes on or swerved or something, but I didn’t see anybody.” 9. Mr.

Heap said of the pedestrian: “Well, she wasn’t in the crosswalk….Well, if she’d been in the crosswalk I would have seen her and I would have braked.” When asked why he did not see the pedestrian, he replied: “Because there was nobody in the crosswalk.” 10. He said he saw the red “don’t walk” sign.

11. “I was just turning the corner. I’ve done it 400 times. I didn’t see anybody, I didn’t see anything unusual. I turned the corner at the median, didn’t see anything.

If I had seen something I would have put my brakes on.” 12. “Well, as I’m coming up to the corner there I’m – I’m looking over to the left to see if there’s anybody in the crosswalk…And as I approach the turn…I’m also doing a second look over to the left to make sure nobody’s in the crosswalk and that nobody is coming from my left-hand side going north across the crosswalk….when I’m looking over that way, I’m looking at green lights, but then I’m slightly turning my head to see if there’s anybody in the crosswalk.

As I get closer to the crosswalk, as I’m getting closer at the corner…when I do my next check and I’m having to turn my head more to see if anybody’s coming from behind me and make sure nobody’s also in the crosswalk in front of me….The only thing that might have been in my view would be the stanchion of my car on the left-hand of the window there as I’m looking to the left.” 13. “Well, looking over to the left as I’m approaching the intersection.

As I’m getting closer to the intersection I’m looking more to my left to make sure nobody’s coming from behind me, and then I’m turning the corner.” 14. “I saw nothing in the crosswalk.” [ 49 ] In cross-examination, Mr. Heap testified that as he was “much more into the turn” (referring to the left hand turn from Deer Ridge Drive onto Canyon Meadows Drive) when he finished “checking for hazards”.

He said he finished checking for hazards “because I’m already turning in the corner…There was ( sic ) no concerns because I didn’t see any – anybody at all.” [ 50 ] He also testified that he has no recollection of the time between the collision and his vehicle coming to a stop on the north side of Canyon Meadows Drive. [ 51 ] In re-examination, he was asked about visibility that night, and he said: “Well, the visibility can be clear when it’s still raining.” [ 52 ] There is no evidence to suggest that the mechanical condition of Mr.

Heap’s vehicle made any contribution to the collision. [ 53 ] Constable Scot McCallum, a collision reconstructionist with the Collision Reconstruction Unit of the Traffic

Section of the Calgary Police Service, testified at the trial. I found him qualified to give opinion evidence in relation to matters relating to accident reconstruction, the dynamics of collisions, and the calculations associated therewith. [ 54 ] Constable McCallum calculated the minimum speed of the Heap vehicle at the time of impact with Ms. Oliver to be 49 km/h.

Constable McCallum stated in his report that “excessive speed was not considered to be a factor in this collision.” I agree with this statement. [ 55 ] He also concluded (as stated in his report, marked as Exhibit 19) that “although this collision occurred at night, it took place on a light controlled intersection within the confines of a painted pedestrian crosswalk under functioning streetlighting. These circumstances would have made the pedestrian visible to a careful and alert driver looking along the vehicles intended path of travel.

Pedestrian conspicuity was not considered a factor in this collision.” I will comment later on this conclusion. [ 56 ] Whether both, or either, of Ms. Oliver and Mr. Howe were physically within the marked boundaries of the crosswalk at the time of the collision is, in my view, not clear. [ 57 ] Mr. Howe insists that they were both within the crosswalk, but, for the reasons earlier stated, I find I cannot place a great deal of weight on his evidence. [ 58 ] Mr.

Heap says that he did not see the two individuals in the crosswalk because “there was nobody in the crosswalk.” [ 59 ] Constable McCallum stated that the physical evidence was consistent with a conclusion that it was “very possible” that at the time of the collision Ms. Oliver was physically west of the crosswalk by a “metre or so”. I find that to be a reliable opinion and I accept it. [ 60 ] The Crown submitted that, on Mr. Heap’s own admission, he stopped “checking for hazards” after he began his turn onto Canyon Meadows Drive.

Quite properly, the Crown directed my attention to a particular series of questions and answers in the Crown’s cross-examination of Mr. Heap. However, to fully understand those questions and answers, one has to first call to mind a portion of Mr. Heap’s earlier testimony. [ 61 ] In the course of Mr. Heap’s examination-in-chief, Mr. Heap, in referring to a map diagramme of the intersection (Exhibit 21), placed the notation “S-5” at the spot on the Exhibit where he applied his brakes as he began to make the turn.

His evidence as to braking was as follows: A Well, I applied them – I applied them softly at first as I’m approaching the intersection because I’m -- I’m also looking over to the left to make sure nobody’s crossing the crosswalk. And as I get close to the intersection then I apply them a little harder because I’m starting to turn. Q Can you mark with an S-5 where that applying them harder is? [1] [ 62 ] Mr. Heap did so, and when asked to point to “S-5” on Exhibit 21, he said: “It’s up here as I’m turning the corner there.” [ 63 ] In cross examination, Mr. Heap was asked these questions and gave these answers:

Q And so, S-5, Mr. Heap, or near S-5 do you continue to check for hazards after S-5 or do you stop? A That -- that’s when I finished checking. Q You’re finished checking? A Yes. Q You don’t check after that point? A No. Q You just proceed after that point? A Because I’m already turning in the corner. Q And so you just simply proceed at that point? A Yes. Q But once you’ve confirmed that there’s no concerns in -- in and around that area? A There was no concerns because I didn’t see any -- anybody at all. Q And you’d agree so you had stopped checking? A Yes.

Q You proceed straight at that point along Canyon Meadows Drive? Once you -- A Well, I’m -- Q -- finish navigating that turn? Obviously, you didn’t drive into the -- A -- I’m still just turning, obviously I didn’t proceed because I hit somebody. Q But you -- but you had started to proceed at that point, you -- A I had -- Q -- you were leaving your turn? A -- I had just turned the corner, yes.

Q Yeah. You were leaving your turn? A Yes. Q And when you leave your turn would you agree that you begin to pick up speed? A I would have done at that time, but I don’t recall doing it at that time because of the impact. [2] [ 64 ] Mr. Heap’s statement that he had “stopped checking” while making the turn needs to be considered in the context of his earlier explanation of the steps he took to check for hazards. In examination-in-chief, he was asked these questions and gave these answers: Q And -- and you mentioned also that you did some checks, could you explain that again?

A Well, as I'm -- as I'm coming up to the corner there I'm -- I'm looking over to the left to see if there's anybody in the crosswalk. Q M-hm. A And as I approach the turn to S-5 I'm also doing a second look over to the left to make sure nobody's in the crosswalk and that nobody is coming from my left-hand side going 26 north across the crosswalk. Q And could you describe how -- how that looks when you're checking left? A Well, when I'm -- when I'm -- when I'm at S-4 I'm just looking over that way, I'm looking at the green lights, but then I'm slightly turning my head to see if there's anybody in the crosswalk.

As I get closer to the crosswalk, as I'm getting closer at the corner at say S-5, when I do my next check and I'm having to turn my head more to see if anybody's coming from behind me and make sure nobody's also in the crosswalk in front of me. Q And what checks are they again, could you explain? A Well, looking over to the left as I'm approaching the -- the -- the intersection. As I'm getting closer to the intersection I'm looking more to my left to make sure nobody's coming from behind me, and then I'm turning the corner. Q And you were mentioning that you did those checks again at S-5 before -- A Yes. [3]

[ 65 ] I accept Mr. Heap’s testimony describing what he did, and what he saw. [ 66 ] In relation to the status of the “walk/don’t walk signal”, while I accept that either Mr. Howe or Ms. Oliver pushed the pedestrian activation button before stepping off the curb, I accept that when Mr. Heap saw the “walk/don’t walk signal”, just prior to the collision, it was then showing red (i.e., “don’t walk”), though Mr. Heap did not say if it was a flashing or solid signal. [ 67 ] Considering the whole of Mr.

Heap’s testimony on the topic of “checking for hazards”, I find that his evidence was to the effect that as he prepared to execute the left-hand turn onto Canyon Meadows Drive, he executed the manoeuvres he described in an effort to determine if there were pedestrians (hazards) which had to be avoided. Having detected no such hazards, and once he commenced the turn, he did not continue to perform the preparatory checks to his left because he was then directing his attention to the road ahead of him as he executed the turn. Mr.

Heap’s evidence was not that he stopped being mindful of hazards, but rather that he was paying attention to the road before him, which is also a form of checking for hazards, and that he saw no hazards. Law and Analysis Count 1 [ 68 ] Count 1 alleges that Mr. Heap “being the operator of a motor vehicle on a highway unlawfully failed to yield to a pedestrian in a crosswalk”. [ 69 ] Section 41(1) of the Use of Highway and Rules of the Road Regulation (Alta. Reg. 304/2002 ) (made pursuant to

section 112 of the Traffic Safety Act R.S.A. 2000, c. T-6 ) states: “41(1) A person driving a vehicle shall yield the right of way to a pedestrian crossing the roadway within a crosswalk.” [ 70 ] I shall refer to the Use of Highway and Rules of the Road Regulation , supra, as the “Rules of the Road Regulation”. [ 71 ] A contravention of section 41(1) of the Rules of the Road Regulation is made an offence by the combined effect of section 157(1) (

b) of the Traffic Safety Act , supra , and

section 113 of the Rules of the Road Regulation . [ 72 ] It is an essential element of the offence set out in Count 1, and therefore must be proven beyond a reasonable doubt, that the pedestrian to whom the driver did not yield was “within a crosswalk”. [ 73 ] Section 1(1)(

d) of the Rules of the Road Regulation defines “crosswalk” as follows: (d) “crosswalk” means (

i) that part of a roadway at an intersection included within the connection of the lateral line of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the roadway, or (ii) any part of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or by other markings on the road surface; [ 74 ] Section 1(1)(d)(ii) applies to the case at bar. [ 75 ] Were either of Mr. Howe or Ms. Oliver “within a crosswalk” when Mr. Heap failed to yield to them? [ 76 ] I have found that as Ms. Oliver and Mr.

Howe travelled south across the lanes of Canyon Meadows Drive, Ms. Oliver was to the left of Mr. Howe; therefore, Mr. Howe was west of Ms. Oliver. [ 77 ] I have also accepted Constable McCallum’s opinion that it was it was “very possible” that at the time of the collision Ms. Oliver was physically west of the crosswalk by a “metre or so”. [ 78 ] It inevitably follows that since Mr. Howe was west of Ms. Oliver, that it was very possible that Mr. Howe was physically west of the crosswalk. [ 79 ] I have a reasonable doubt that Mr. Howe and Ms.

Oliver, or either of them, were within a crosswalk when the vehicle operated by Mr. Heap collided with Ms. Oliver. [ 80 ] I find Mr. Heap not guilty on Count 1. Count 2 [ 81 ] Count 2 alleges that Mr. Heap “being the operator of a motor vehicle on a highway, unlawfully drove in a manner that constituted driving carelessly. [ 82 ] Section 115(2) (

b) of the Traffic Safety Act states: “A person shall not do any of the following:…(

b) drive a vehicle on a highway in a manner that constitutes driving carelessly.”

[83] Section 115(1) states: “For the purposes of this section, a driver of a vehicle is driving carelessly if that driver drives the vehicle (

a) without due care andattention, or (

b) without reasonable consideration for persons using the highway.” [84] Section 157(1) of the Traffic Safety Act, supra, makes it “a contravention” (an offence) to contravene section 115(2). [85] The offence of “careless driving” as created by the Traffic Safety Act, supra, is a strict liability offence. In R. v. Mooney 2023ABCA 144, the Court of Appeal discussed both the elements of the offence, and the applicable defence of reasonable care or duediligence: [25] All regulatory offences are strict liability offences unless clearly indicated otherwise. Careless driving is a strict liabilityoffence.

The Crown must prove beyond a reasonable doubt the elements of the offence: that the accused was driving without due careand attention, or without reasonable consideration for persons using the highway. This burden is met by proof of the actus reus. As theCourt said in Sault Ste Marie in describing strict liability offences, 1326: Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act primafacie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care.

This involvesconsideration of what a reasonable man would have done in the circumstances.

See also R v McIver, (ON CA), [1965] 2 OR 475, 480, [1965] 4 CCC 182 (CA), aff’d (SCC), [1966]SCR 254. [26] There is then a shift of onus to the accused “to come forward with the evidence of due diligence” or “reasonable care”. “This burdenfalls upon the defendant as he is the only one who will generally have the means of proof”, to be established “on the balance ofprobabilities”: Sault Ste Marie, 1325; see Roach, 262. [27] When establishing due diligence or reasonable care, the accused’s conduct is assessed using the reasonable person standard.

Thecircumstances as perceived by the accused are not determinative; rather, the focus is on whether the accused took reasonable steps. “Adefence of ‘human error’ or honest but not necessarily reasonable mistake will not suffice”: Roach, 264. [28] The proper application of the law is set out in R v Jacobsen, (BC CA), [1965] 1 CCC 99, 108, 48 WWR 272(BCCA): the conduct required for proof of careless driving does not require “a breach of duty to the public . . . deserving of punishment.”This is succinctly stated in R v Morrison, 2002 YKCA 15, para 11, 172 BCAC 232: A strict liability offence does not require proof of an additional element of blameworthiness or higher degree of culpability as theappellant argues.

All that is required is proof that the person charged with the strict liability offence did the prohibited act and therebybreached the standard of conduct required by the

section of the enactment that creates the offence. It is then that the defence of reasonable care or due diligence becomes available by proof on a balance of probabilities. [29] To the extent that R v Beauchamp, (ON CA), [1953] OR 422, 432-433, 106 CCC 6 (CA), or R vGrosvenor (1993), (AB KB), 146 AR 63, para 3, 13-16, 50 MVR (2d) 95 (QB), purport to require mens rea, “anadditional fault element”, “a breach of duty to the public ... deserving of punishment”, or a “quasi-criminal element”, those decisionshave been overtaken in evolution of the law.

See in that regard R v Brown (1986), (AB KB), 71 AR 137, paras 9-14 (QB) (post-Beauchamp) and R v Emery, 2015 ABQB 679, para 54, 90 MVR (6th) 44 (post-Grosvenor). [30] In addition, we do not see R v Sanders, 2006 ABQB 393, paras 54-58, 400 AR 136, relied upon by the Crown, as creating aseparate, distinct statutory defence that the offence “could not have been avoided by the exercise of reasonable care or precaution”. Thatis a distinction without a difference. … [34] In

summary, the commission of the prohibited act, driving without due care and attention or without reasonable consideration forother persons using the highway, proof of the actus reus beyond a reasonable doubt, is sufficient. The onus then shifts to the accused toestablish due diligence, reasonable care, or precaution on the balance of probabilities. The Crown need not prove something more thaninadvertent negligence, nor prove criminality, before this onus shift. [86] Though our Court of Appeal has disapproved of the statements in R. v. Beauchamp (1953) (ON CA), 106C.C.C. 6 (Ont.

C.A.) about “a breach of public duty…deserving of punishment”, the following portions of the discussion in Beauchampof the offence of careless driving remains instructive: 1. “To support a charge under s. 29(1) of The Highway Traffic Act, the evidence must be such as to prove beyond reasonable doubtthat the accused drove in the manner prohibited by the subsection, namely, without due care and attention or without reasonableconsideration for others. 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 in Mazengarb, 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 other usersof the road. ... The question always is “What would an ordinary prudent person in the position of the plaintiff have done in relation to the

event complained of?”’ [Pollock on Torts uses the term "average man".]” [pp. 12-13 C.C.C.] 2. “…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 existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to 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 care remains the same in the sense that it is what the average careful man would have done in like circumstances, the factual standard is a constantly shifting one, depending on road, visibility, weather conditions, traffic conditions that exist or may reasonably 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.” [p. 13 C.C.C.] [ 87 ] In R. v.

Emery 2015 ABQB 679 , Justice Browne said: [55] Where an accident has occurred, the test is not whether the accident would not have happened if the accused had used greater skill or care. The test is whether it is proved beyond a reasonable doubt that the accused, in the light of existing circumstances, failed to use the care and attention or to give to other users of the highway the consideration that a driver of ordinary care would have used or given in the circumstances: R v Kinch , [2014] OTC 77 , 2 MVR (5th) 85 (Ont Sup Ct J) .

A prima facie case of driving carelessly can also be made out by circumstantial evidence which easily and logically supports an inference that the accused was driving carelessly and where there is no evidence which supports a rational, alternative conclusion: R v Ashton (1985), 36 MVR 100 , 14 WCB 482 (Ont Dist Ct) . [ 88 ] In the case at bar, I am satisfied that Mr. Heap, in preparation for making the left hand turn from north bound Deer Ridge Drive onto west bound Canyon Meadows Drive, conducted the appropriate checks for pedestrians.

He was not driving at an unreasonable speed. [ 89 ] I accept that he did not see the pedestrians before he collided with Ms. Oliver. [ 90 ] While Mr. Heap’s failure to see the pedestrians could support an inference that he was driving carelessly, I find that in the circumstances of this case that inference does not support a prima facie case of careless driving because the evidence also supports a rational, alternative, conclusion which does not violate section 115(2) (

b) of the Traffic Safety Act . I come to that conclusion for these reasons: 1. Though Constable McCallum was of the opinion that the circumstances “would have made the pedestrian visible to a careful and alert driver looking along the vehicle’s intended path of travel” and that “pedestrian conspicuity was not considered a factor in this collision”, I find that the evidence of Captain Rinas of the Calgary Fire Department, who was on scene within minutes of the collision, and who said that “visibility was limited” and that it was “kind of a challenge that night”, to be reliable and I have accepted it.

It does not support Constable McCallum’s opinion on the matter, and I do not accept his opinion. 2. I have no reliable evidence as to the speed at which Mr. Howe and Ms. Oliver travelled across Canyon Meadows Drive. In R. v. Dipnarine , 2014 ABCA 328 , the Court said (at paragraph 24): “Reasonable doubt can arise from the absence of evidence. It is not [an] error of law to give effect to such a doubt even if it does not have specific evidence backing it up – see R v (H(JM), 2011 SCC 45 at paras 25 to 27 , [2011] 3 SCR 197.” In the case at bar, it is a reasonable and rational inference that the reason Mr.

Heap did not see the pedestrians is that they were moving quickly as they approached the collision point, and therefore quickly came into Mr. Heap’s line of vision at such a speed that Mr. Heap would not have reasonably been able to see them until the collision with Ms. Oliver. 3. Mr. Heap, in preparing to turn left onto Canyon Meadows Drive conducted the appropriate checks for pedestrians. Visibility was adversely affected by glare from the light reflected from the wet road surface caused by the heavy rain. Speed was not a factor in the collision.

There is no reliable evidence as to the speed at which the pedestrians were travelling across the road. Since Mr. Heap had conducted the appropriate checks going into his left hand turn, and since he continued to watch for hazards by watching his path of travel, one of the reasonable and rational inferences which can be drawn from the evidence (which includes a lack of reliable evidence on the point) is that the pedestrians were crossing the road at such a speed that the collision with Ms. Oliver occurred for a reason other than Mr. Heap driving carelessly. I am mindful of Justice Browne’s statement re R. v.

Emery , supra , that the test is not whether the accident could have been avoided by the exercising of greater skill or care. However, in the case at bar the primary evidence relied upon by the Crown to prove the alleged offence of careless driving is the interaction between Mr. Heap’s vehicle and the pedestrians. [ 91 ] The Crown’s theory is that the only reasonable inference to be drawn from the evidence (including the collision with Ms. Oliver) is that Mr.

Heap was driving carelessly as that term is defined in the legislation. [ 92 ] However, for the reasons previously set out, I am satisfied that the evidence before me can also lead to the reasonable and rational inference that the collision with Ms. Oliver occurred for a reason other than careless driving on the part of Mr. Heap. [ 93 ] The Crown must prove beyond a reasonable doubt that Mr. Heap drove carelessly by driving without due care and attention or without reasonable consideration for persons using the highway.

Since the whole of the evidence (which includes factual issues upon which there is an absence of reliable evidence) supports two reasonable, rational inferences, one of which supports a finding that Mr. Heap drove carelessly, and one of which supports a finding that Mr. Heap did not drive carelessly, then there is a reasonable doubt that Mr. Heap drove carelessly. [ 94 ] I find Mr. Heap not guilty on Count 2.

Verdicts [ 95 ] I find Mr. Heap not guilty of both Counts 1 and 2. Dated at the City of Calgary, Alberta this 6th day of September, 2023. A.A. Fradsham A Justice of the Alberta Court of Justice Appearances: Robert Marquette for the Crown Bath-Sheba van den Berg for the Accused [3] Transcript - May 15, 2023 – Page 51, Line 20-35; Page 52, Line 31-37