R v Chartrand, 2024 ABCJ 15

In the Alberta Court of Justice Citation: R v Chartrand, 2024 ABCJ 15 Date: 20240123 Docket: 211227665P1 Registry: Edmonton Between: His Majesty the King Crown - and - Karen Ann Chartrand Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5 . By Court Order:

(1) Information that could identify BS shall not be published, broadcast, or transmitted in any way.

(2) No person shall publish, broadcast, or transmit in any way the contents of the publication ban application or the evidence, information or submissions at the hearing of the application. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Oral Judgment of the Honourable Justice of the Peace D. Lefebvre Introduction [ 1 ] The trial of this matter was heard on July 11, 2023, and an oral judgment given on August 28, 2023. These reasons clarify but do not change my oral reasons.

To the extent that they differ, these written reasons prevail. [ 2 ] It is alleged that, on October 25, 2021, A young student was crossing a street at a crosswalk on her way to school. The crosswalk is located on the east side of 167 Street and 100 Avenue in Edmonton, Alberta. A school bus, driven by Karen Chartrand, was making a left turn onto 100 Avenue from 167 Street. The school bus hit and ran over BS as it was making the left turn. BS was severely

injured. [ 3 ] Ms. Karen Chartrand was charged with failing to yield to a pedestrian in a crosswalk, contrary to section 41(1) of the Use of Highway and Rules of the Road Regulation , Alta Reg 268/2003 (the “ Rules of the Road ”) pursuant to the Traffic Safety Act , RSA 2000, c T-6 (the “ TSA ”). [ 4 ] The Accused, Ms. Chartrand, who was present during trial was represented by counsel, Mr. Titosky. [ 5 ] Crown counsel was Ms. Daniele. [ 6 ] The Crown called three civilian witnesses.

The Evidence Agreed Statement of Facts [ 7 ] The Crown and the Accused prepared an agreed statement of facts, which was entered by consent as Exhibit 1.

It is reproduced here verbatim for ease of reference. [ 8 ] The incident occurred in Edmonton, Alberta, Canada on October 25, 2021, at approximately 0745 hours. [ 9 ] The driver of the motor vehicle involved in the incident was identified by her Alberta driver’s license as Karen Chartrand (“Chartrand”). [ 10 ] Cst Presley served Karen Chartrand an appearance notice, dated November 27, 2021. [ 11 ] On October 25, 2021, the Accused, Chartrand, was operating a yellow school bus bearing Alberta license plate G-76533. Chartrand was making a left turn on to 100 Avenue to travel east.

CHARTRAND approached the intersection of 167 Street and 100 Avenue. There was a full red light, and she stopped her bus. She was the first vehicle at the light. [ 12 ] One civilian witness, Jennifer Just, approached the pedestrian and dialed 9-1-1. [ 13 ] Another civilian, Kassie Lowry, was stopped at the intersection of 167 Street and 100 Avenue heading east. He remained in her car and called 9-1-1. [ 14 ] The bus the accused was operating was seized and inspected for mechanical issues.

Mechanical issues did not contribute to this event. [ 15 ] The roadway was straight flat paved asphalt, consisting of 4 lanes eastbound along 100 Avenue and was controlled by traffic lights. 168 Street intersected with 100 Avenue and was controlled by traffic lights. There was a crosswalk on the east and west side of the intersection, as well as on the north side. On the south side there was a sidewalk.

The traffic lights were functioning, as well as the pedestrian walk/don’t walk lights. [ 16 ] The weather at the time was 6 degrees Celsius with light rain. [ 17 ] Members of the EPS Major Collision Investigation Unit (“MCIU”) were dispatched to the scene of the collision on October 25, 2021, and arrived at approximately 0855 hours.

Members of the MCIU were assigned to investigate the collision, which included mapping the scene, taking photographs, determining the coefficient of friction on the roadway, examining the vehicles and taking statements. [ 18 ] The pedestrian, BS, sustained serious injuries including a broken pelvis, internal injuries, and a broken arm. She was admitted to the hospital October 25, 2021, required multiple surgeries, and was discharged on December 31, 2021. [ 19 ] A 2D scale drawing generated by Cst. Kitchen #3101 using a Leica RTC360 Laser Scanner. [ 20 ] Seventy six photographs were taken by Cst.

Ritchie #2888 using a Nikon D7100 digital camera that accurately depict the intersection and the bus on the day of the offence. [ 21 ] The accused, Karen Chartrand, admits the continuity and authenticity of all exhibits, including accident scene photographs, accident scene mapping. [ 22 ] The accused, Karent Chartrand, admits BS’s medical report to being accurate and admissible.

Agreed Exhibits [ 23 ] The following exhibits were entered by agreement: [ 24 ] Exhibit 2 – 76 Photos taken by Constable Richie [ 25 ] Exhibit 3 – Scaled drawing of the intersection of 167 Street and 100 Ave by Constable Kitchen [ 26 ] Exhibit 4 – First 14 pages of BS’s medical report

Evidence of the Crown [ 27 ] The Crown’s first witness was BS. [ 28 ] On October 25, 2021, BS was walking to school, something she had done every day. At approximately 8:00 AM, she was preparing to cross 100 Avenue from 167 Street at the marked crosswalk. She pressed the crossing signal activation button. The light was red for a few seconds, then she looked both ways and proceeded to cross on the walk signal. [ 29 ] At about the midway point of crossing 100 Avenue, she was hit on her right side by a bus. She remembers seeing the front part of the bus at the time it made contact with her right arm and leg.

She landed on the ground on her right side. She could see that the bus kept going, and by the time she realized what was going on, there were several people helping her while some were calling 9-1-1. [ 30 ] BS was shown a photo of the intersection at page 93 of Exhibit S2. She traced a circle where she believed she landed after being struck by the bus. That document was entered as Exhibit 5 in these proceedings. [ 31 ] BS remembered EMS arriving and transporting her to the hospital. [ 32 ] Her injuries were quite extensive, requiring five surgeries to date.

A portion of her hospital records are found at Exhibit 4. [ 33 ] During cross-examination, BS confirmed that she did not roll on the ground when she was hit by the bus, nor did the bus push or drag her –she remained in position where she had landed. [ 34 ] When asked if it was possible that the bus was stopped at the intersection before she arrived there and hit the crosswalk button, she answered “no”. [ 35 ] When shown photographs 29 and 32 in Exhibit 2, it was suggested to her that she was not in the crosswalk but was closer to the back of the bus, not far from where it had stopped.

BS confirmed she was in the crosswalk. [ 36 ] The Crown’s second witness was Ms. Jennifer Just (“Just”). [ 37 ] On the day in question, Just was on her way to St. Francis Xavier High School. She is a substitute teacher. [ 38 ] She was driving eastbound on 100 Avenue toward 167 Street, travelling in the second lane from her right. [ 39 ] As she approached the intersection, the light was red. It was rush hour, so there were many cars at the intersection.

There was a large SUV ahead of her and from her vantage point, she remembered seeing the pedestrian walk signal to her right, which then turned to a flashing hand; she was gauging how long she would have to wait for a green light. [ 40 ] The traffic light turned green, and she could hear other drivers honking their car horns. As she proceeded to move forward, she could see what she thought was a pile of fabric on the road. When she looked closer, she realized that it was a person in the crosswalk.

She immediately pulled over to call 9-1-1 and rendered assistance. [ 41 ] She did not see BS get hit by the bus or get run over. [ 42 ] Just found BS lying on the east side of the crosswalk in the third lane from the right. She was 90% certain that BS was between the lines of the crosswalk.

At the time she was with BS administering first aid, she could remember seeing a line, but could not remember what side of the line she was on, but she knew that she was on the east line of the crosswalk. [ 43 ] During cross examination it was suggested that since Just was 90% certain BS was lying the crosswalk, that would leave a 10% chance that she was not in the crosswalk. Q: So, you’d agree it’s possible she was not inside the crosswalk, correct? A: Sure. Q: But you’d agree that this was a stressful scenario, and you were focused on the person on the ground, correct? A: Yeah.

Q: And you might be mistaken where she was at the time or when you got to her, correct? A: It’s possible...yes, but I’m quite sure she was in the crosswalk. It’s just over a year, and so I don’t remember it like yesterday. [ 44 ] Counsel for the Accused, Mr. Titosky, showed Just a photo that the Accused provided to him. It was entered as Exhibit A for identification purpose, but was eventually entered as Exhibit 8 after the Accused testified.

Using the photo in Exhibit 8 and the photos on pages 51 and 52 of Exhibit 2, it was suggested to Just that BS was lying outside of the crosswalk, close to the bus, where cracks are visible behind the bus; the same cracks which were visible in the photo at Exhibit 8. In response, Just confirmed that BS was nowhere near the bus. [ 45 ] During re-examination by the Crown, Just was provided with a copy of a map of the intersection at Exhibit 3. She traced a circle showing where she remembered seeing BS after being run over by the bus.

That marked map was entered as Exhibit 6. [ 46 ] The Crown’s third witness was Kassie Lowry (“Lowry”). [ 47 ] Lowry was driving eastbound on 100 Avenue. She was stopped at stop line for the red light at the west side of the intersection

at 167 Street. [ 48 ] She observed the back tire of the bus go over BS’s legs. She dialed 9-1-1. She remained in her vehicle until EMS and EPS arrived. [ 49 ] She didn’t notice the bus at first. The bus was already on 100 Avenue when she noticed it. [ 50 ] She also testified that the BS was in the intersection when the bus’s back wheel was rolling over her legs. Looking at photos 18 and 19 of Exhibit 2, she stated that BS was in the crosswalk at the second lane from the left. The bus was stopped a few meters away from the crosswalk. [ 51 ] The witness was provided a copy of the map from Exhibit 3.

She traced a circle around the area where BS was lying on the ground and where her vehicle was when she stopped at the intersection. [ 52 ] During cross-examination, Lowrey provided clarification on the placement of the bus. She stated that she first observed the bus when it was halfway through its turn.

She did not witness BS being hit by the bus. [ 53 ] Her recollection as to the distance of the bus from the crosswalk in its stopped position was between three and five meters. [ 54 ] During re-examination by the Crown, Lowry confirmed that she first noted BS when she was already on the ground and the back tires of the bus were rolling over her. Evidence of the Accused [ 55 ] Ms. Karen Chartrand provided the following evidence: [ 56 ] At the time of the incident, Chartrand had been a spare bus driver for almost 13 years.

She started driving during September of 2009 and her last day as a bus driver was on the day of the incident, October 21, 2021. [ 57 ] She is currently not working and has been on WCB for psychological trauma. However, she is currently looking to start a consulting business in the area of school bus route safety assessment. [ 58 ] Chartrand assesses her level of safety at a nine out of ten when driving a bus.

However, she explained that unexpected things may happen that could distract a driver – things such as traffic or kids standing up in the bus. [ 59 ] When asked whether distracting factors were present on the day in question, she stated that “there was no lateness on my part.” She then provided some general comments about the inherent dangers of backing up and making left turns, and how one must always be vigilant. [ 60 ] When approaching the intersection of 100 Avenue and 167 Street, Chartrand pulled up to the intersection on a red light.

She is very familiar with that intersection as she has driven through that intersection at least a thousand times. She was there for about 30 seconds and observed that there was a person wearing a yellow coat on the southeast side of the intersection watching for transit. The light was changing to yellow, and he stepped out onto the road looking for the bus; she had seen many people do this and she assumed that they were looking for the ETS bus. The light turned red for the eastbound traffic.

When her light turned green, she made sure that the traffic was stopped before she proceeded into the intersection. [ 61 ] While at the intersection, Chartrand observed that there was crosswalk on the east and west side of the intersection, and a very large brightly lit sign in the shape of cowboy boot that never turns off at the entrance of a store called the One Stop Biker Shop. The sign was a bit behind and to the left of Chartrand.

Notwithstanding the brightness of the boot, this did not affect Chartrand's ability to see. [ 62 ] Chartrand started to go through the intersection and constantly looked to her left and right “to make sure there’s nobody coming and making sure that the way is clear.” [ 63 ] She proceeded through the intersection because she did not see anyone in the intersection or crossing the intersection. She continued to the second lane from the left on 100 Avenue. [ 64 ] As she was making the turn, Chartrand was constantly leaning forward and backwards so that she can see the blind spots.

The blind spots include one behind the driver’s mirror, so leaning forward allowed her to look in that spot. There is also a big blind spot between where the driver sits and the back wheel on the driver’s side. That one is apparently very hard to see. [ 65 ] There are some features on the bus to assist with those blind spot, including side mirrors and crossover mirrors.

The crossover mirrors are the ones that sit on the very front of the bus, which help the driver to see what is in front of the bus. [ 66 ] As she entered the intersection, she was scanning everything around her every three to four seconds. [ 67 ] According to Chartrand, there were no distractions and the children on the bus were well-behaved. [ 68 ] Halfway through her left turn, she stated that her bus was almost straight and “would have been almost completely over the crosswalk.” While traveling through the crosswalk, she stated that her bus would be at an angle.

Once completely through the intersection, she turned her signal on to change lanes in anticipating of turning right onto 165 Street. [ 69 ] After clearing the intersection, Chartrand put on her right signal and felt a bump underneath her bus. [ 70 ] After feeling the bump, Ms. Chartrand panicked. She was in the process of pulling over but remembered that she needed to

stay relative to where the accident happened, so she straightened the bus out again. [71] She stated that she drove about ten to fifteen feet past where she felt the bump before bringing her bus to a stop. [72] Once her bus stopped, she turned on the hazard lights and exited the bus. She noticed BS on the ground and someone wasattending to her. They were about twenty feet away from the bus.

She also stated that they were ten feet away from the crosswalk. [73] Looking at photo 29 in Exhibit 2, Chartrand testified that she took the photo from Exhibit 8 while standing just past the firstdotted line past the crosswalk, facing westbound. She also testified that BS was laying partway between the second and third lane withher legs being part way over the first dotted line. [74] Chartrand wore glasses with dark lenses. Apparently, she suffers from Irlen Syndrome, which is a perceptual processingdisorder where there is a problem with the brain’s ability to process visual information.

Chartrand explained that the glasses she wearscorrect the problem for her and her vision is as good as anyone else with normal vision. [75] On the day of the incident, she was wearing those glasses.

The Law [76] The offence of failing to yield to a pedestrian in a crosswalk is a strict liability offence. [77] Strict liability means that while the Crown does not have to prove the mens rea (the intent to commit the offence) the Crownbears the burden of proving the actus reus (the act or omission that comprises the offence) beyond a reasonable doubt, R v Vaillancourt, (SCC), [1987] 2 SCR 636, per Lamer J. [78] That burden never shifts to the Accused, and she does not have to present evidence or prove anything unless she raises adefence, which she must prove on a balance of probabilities. [79] It is not enough for the Court to believe that the Accused is probably or likely guilty.

Conversely, proof establishing absolutecertainty is not required of the Crown. Such a burden would be nearly impossible to meet. Nevertheless, the reasonable doubt standardfalls much closer to absolute certainty than to proof on a balance of probabilities, R v Starr, 2000 SCC 40, [2000] 2 SCR 144, perIacobucci, J. at para 242. [80] Reasonable doubt must stem from reason and common sense and is logically connected to the evidence or lack thereof. Itcannot be based upon sympathy, pity, or prejudice.

Finally, it cannot be grounded in hypotheticals, speculation, or fanciful conjecture, Rv Lifchus, (SCC), [1997] 3 SCR 320, per Cory J. at para 36. [81] Credibility and reliability are live issues in this case.

The Court is confronted with conflicting evidence with the main partiesoffering diametrically opposed versions of events related to whether BS was in the crosswalk. [82] Although credibility and reliability are often intertwined to a certain extent, they do remain fundamentally different.Credibility relates to the witness himself/herself and to his/her truthfulness, veracity and integrity, while reliability relates to the accuracyand quality of his/her account, R v Morrisey, (ONCA), 22 OR (3d) 524. [83] When assessing credibility and reliability, the whole tapestry of the evidence is considered, both in scope and nature.

Severalfactors are utilized including internal consistency, consistency over time, compatibility and incompatibility with other evidence,corroboration, plausibility, quality of memory, admissions against interest, evasiveness, exaggeration, bias, motivation, and demeanour,Gill v 1176520 Alberta Ltd, 2020 ABQB 274. [84] The Court must carefully avoid engaging in a “credibility contest” (R v Chartrand, (ONCA), 62 O.R. (3d)514 at para 22). In other words, a quasi-criminal allegation cannot be resolved by simply choosing between conflicting accounts.

Doingso would shift the burden of proof to the Accused or lower the standard of proof resting with the Crown, both of which are scrupulouslyprohibited. [85] In its assessment, the Court may accept all, part, or none of a witness’s testimony, R v JHS, 2008 SCC 30, Binnie J. at para10. [86] I have instructed myself to apply the law as directed by the framework prepared by Cory J. in R v WD, (SCC),[1991] 1 SCR 742 at 758: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. Court’s Analysis and Decision [87] The Crown has the burden of proving the following beyond a reasonable doubt: 1. Jurisdiction;

2. Date and time of the offence; 3. Identification of the accused; and 4. The elements of the offence. [ 88 ] Regarding the offence in question, s 41(1) of the Rules of the Road Regulation reads as follows: Yielding to pedestrians 41(1) A person driving a vehicle shall yield the right of way to a pedestrian crossing the roadway within a crosswalk. [ 89 ] As such, the Crown must prove the following elements of the offence beyond a reasonable doubt: 1. That the Accused was driving a vehicle; 2. The pedestrian was crossing the roadway within a crosswalk; 3. The pedestrian had the right of way; and 4.

The Accused failed to yield the right of way to the pedestrian. [ 90 ] The term “yield” means “to give way to”, R v Del Rosario , 2011 ABPC 294 at para 23 . [ 91 ] The elements of jurisdiction, date and time of the offence and identification of the accused are all made out.

These elements were never put into question. [ 92 ] The first element of the offence is not in question either. [ 93 ] That leaves me to determine whether the remaining elements of the offence are made out beyond a reasonable doubt. [ 94 ] Even if the Crown is successful in proving its case beyond a reasonable doubt, the Accused has raised the defence of due diligence and the statutory defence pursuant to

section 161 of the TSA , which the Accused must prove on the balance of probabilities. Was BS crossing 100 Avenue within the crosswalk at 167 Street? [ 95 ] Before embarking on my analysis, it is important to note that the Court should not be distracted by the cause of BS’s injuries; the Accused has not been charged with hitting a pedestrian or running over a pedestrian. She is charged with failing to yield the right of way to a pedestrian in a crosswalk.

It is not the purpose of this trial to determine fault or liability and the collision is a piece of evidence to consider for the offence under sec 41(1) of the Rules of the Road Regulation . [ 96 ] BS testified that she was preparing to cross at the pedestrian crosswalk, pressed the button, and started to cross when she saw the walk signal. At about the midway point of crossing 100 Avenue, she was hit on her right side by the bus. She remembers seeing the front part of the bus at the time the bus made contact with her right arm and leg. She landed on the ground on her right side, facing the fire hydrant.

She marked the spot on a copy of photograph 10 (from Exhibit 2) of where she fell. See Exhibit 5. [ 97 ] The fact that BS was not pushed or dragged after being hit and having fallen is not in dispute, and the position she was found in was the place where the back wheels of the bus went over her. [ 98 ] The Accused argues that the court should give little weight to BS’s evidence because “the nature of her injuries, the severity of them, the long recovery, that while it would be a memorable event, there is potential for a gap.” I’m assuming a gap in memory.

However, there is no evidence that BS has suffered from any form of memory loss as a result of the incident. The Accused also argues that BS was drifting in and out of consciousness. However, this was after being run over by the bus's back wheel. She was not drifting in and out of consciousness when she was walking through the crosswalk. [ 99 ] I do not accept those arguments. [ 100 ] I found BS’s testimony to be credible. In fact, all of the witnesses, including the Accused, are credible witnesses; they testified to the best of their ability regarding their memory of the events.

However, eyewitness testimony involving events which are traumatic can be unreliable. Thus, it is necessary to consider the accuracy of the eyewitness evidence via corroboration. [ 101 ] Both Just and Lowrey have placed BS in the crosswalk post-incident. While they did place BS in a slightly different location, they nonetheless placed her within the crosswalk (see Exhibits 7 and 8). Just and Lowry both had different vantage points. Just testified that she drove by BS in lane 2 (from the right – travelling eastbound) while Lowry was stopped at the intersection in lane 3 from the right.

Both the evidence of Just and Lowry independently place BS in the crosswalk, which corroborates BS’s testimony. [ 102 ] The Accused also argues that Lowry’s testimony is not reliable because she is incorrect in her estimate of the distance between the crosswalk and the bus. I do not accept this argument; the fact that Lowry could not accurately estimate a distance does not have any bearing on her observation that BS was in the crosswalk. [ 103 ] Given the foregoing, I find that BS was, at all material times, in the crosswalk.

Did the pedestrian have the right of way? [ 104 ] There is no contradiction between the evidence of the Accused and BS regarding this question. The Accused testified that she advanced into the intersection once the light turned green and after making sure all the vehicles were stopped. BS testified that she started to walk upon the walk signal being activated. The green light for traffic and the walk signal would have occurred at the same time, allowing both pedestrians and traffic to proceed. [ 105 ] Since BS was in a crosswalk, she had the right of way over any traffic turning left onto 100 Avenue.

Did the Accused fail to yield the right of way to BS? [ 106 ] None of the witnesses saw BS walking through the crosswalk. [ 107 ] The only witness to the bus’s failure to yield to BS’s right of way was BS herself. However, the fact the bus ran over her while she was lying in the crosswalk (as witnessed by Lowry) corroborates BS’s testimony regarding how she was hit and fell. [ 108 ] I do not believe the evidence of the Accused that she felt a bump on the road after she cleared the intersection.

Given the evidence of BS, Just and Lowry, there is no air of reality to BS being run over some ten feet (three meters) from the crosswalk. The Accused has not provided any corroborating evidence. The photo she provided (Exhibit 8) is of no value – it is out-of-focus and too close to make out where the EMS personnel and BS were in relation to the crosswalk. [ 109 ] The facts accepted by the Court establish BS was crossing 100 Avenue in the crosswalk and was hit by the bus driven by the Accused while crossing the street, leaving the only available inference that the Accused failed to yield the right of way.

Did the Crown prove its case? [ 110 ] Based on the foregoing, I find that the Crown has proven all elements of its case beyond a reasonable doubt. The Defence of Due Diligence [ 111 ] The Accused can avoid liability if she establishes, on a balance of probabilities, that the unlawful act occurred despite the fact that she exercised “due diligence” in all the circumstances. This is referred to as the common law “due diligence” defence. [ 112 ] In cases involving alleged infractions of the TSA , as is the case here, a statutory defence is also available to accused persons.

That defence is provided by s 161 of the TSA . [ 113 ] I assumed, from the Accused’s submissions, that she is raising both the common law defence of due diligence and the statutory defence pursuant to s 161 of the TSA . [ 114 ]

Section 161 reads as follows: Dismissal of charge 161 Where a person is charged with an offence under this Act or a bylaw, the court trying the case may dismiss the charge if the person satisfies the court that the offence could not have been avoided by the exercise of reasonable care or precaution. [ 115 ] In R v Sanders , 2006 ABQB 393 , 400 AR 136 at paras 54-58 , the Honourable Justice J. Watson explained the difference between the common law defence of “due diligence” and the statutory defence set out in s 161 of the TSA .

However, in a recent appeal decision in R v Mooney , 2023 ABCA 144 , [2023] A.W.L.D. 2388 at para 30 , the Alberta Court of Appeal stated that the creation of a distinct statutory defence “is a distinction without a difference.” [ 116 ] In R v Kelly , 2012 ABPC 280 at paras 54-57 , the Honourable Justice J.T. Henderson provided a

summary of cases that have considered the defences of due diligence: [55] In Gallant , supra , the accused was charged with failing to yield to a pedestrian in a crosswalk. In that case, the pedestrian was crossing the roadway within a marked crosswalk which was also marked by overhead lights and signage. The accused was in the third lane from the right curb. Traffic in the other lanes was backed up on both sides of the intersection. As the accused entered the intersection, he collided with the pedestrian who had entered the crosswalk from the right curb.

The pedestrian was wearing dark clothing and was moving quickly. The accused was travelling at a slow speed, 5 to 15 kph, and was scanning ahead for pedestrians. The Court concluded that in those circumstances the accused had established the defence of “due diligence”. [56] In R. v. Del Rosario , 2011 ABPC 294 the accused was charged with careless driving and failing to yield to a pedestrian in a crosswalk. In that case the accused was operating a motor vehicle which came into collision with a pedestrian in a crosswalk. The pedestrian was wearing dark clothing at the time.

Another motorist testified that lighting conditions were such that it was hard to see, and that the crosswalk was “very, very dark”. This driver testified that he saw a “shadowy figure” enter the intersection at which point he applied his brakes, sounded his horn and successfully avoided striking the pedestrian. The pedestrian did not respond to the warning, continued to cross the roadway and was struck by the accused.

The Court rejected the defence of “due diligence” on the basis that “there was no direct evidence that the accused was either alert to the possibility of, or scanning ahead for, pedestrians in the intersection” (at

paragraph 47). [57] In Sanders, supra, the accused was charged under s. 41(2) of the Regulation with failing to stop his vehicle to permit apedestrian to cross at a crosswalk where another vehicle had stopped for that purpose. The accused had seen a motor vehicle stopped ata crosswalk. He entered the intersection without accurately determining why the other vehicle was stopped.

Justice Watson concludedthat even though the accused could not see the pedestrian in the crosswalk, that was not sufficient to establish a defence under thecommon law “due diligence” or under the statutory defence provided by s. 161. [117] The Accused takes the position that she should be excused from liability. She argues that she took all reasonable care andprecaution when operating the school bus. [118] In assessing the defence of due diligence, the Court must have regard to the circumstances which the accused person wasaware of or should have been aware of.

The standard is not one of perfection, but rather is that of the reasonable person, R v Gallant, (ABCJ), 44 MVR (4th) 213 (Alta PC). Moreover, in order to make out the defence of due diligence, the defence mustrelate to the commission of the prohibited act, not some broader notion of acting reasonably, R v Raham, 2010 ONCA 206. [119] What are the circumstances which the Accused was aware of, or should have been aware of that are directly related to theoffence of failing to yield to a pedestrian in a crosswalk?

Those circumstances include the following: • There are schools in the area and many students walk to school. • When turning within a crosswalk, a pedestrian can appear at any moment – especially during the time when students aremaking their way to school. • Chartrand has driven through that intersection many, many times. • Traffic was heavy – it was the morning rush hour. • It was raining – the roads were slick. • The school bus is a large vehicle: there are many blind spots and extra care must be taken when turning left. • School bus drivers receive more training than the average driver and are therefore held to a higher standard. • The intersection was a T-intersection – there were no on-coming cars to watch out for. • There were no distractions (i.e. students were well behaved on the bus and the boot was not blinding her) when Ms.Chartrand was preparing to turn left. [120] When I consider these circumstances, I conclude that a reasonable school bus driver would have exercised a very high level ofvigilance when turning left from 167 Street to 100 Avenue.

I conclude that the reason the Accused did not see BS was because she wasnot specifically attentive to the crosswalk to her left and the possibility that a pedestrian could be crossing from behind her at anymoment. [121] The Accused’s testimony demonstrates how careful she was generally.

However, she failed to specifically to address thisparticular event of failing to yield to BS. [122] Had the Accused paid specific attention to the crosswalk and exercised due diligence in the circumstances, she would have seenBS in the crosswalk. [123] I therefore find that the Accused has not made out the defence of due diligence on the balance of probabilities.

Conclusion [124] The Crown has proven beyond a reasonable doubt that the Accused failed to yield the right of way to BS as she was in thecrosswalk at the intersection of 167 Street and 100 Avenue. [125] The Accused as failed to establish on a balance of probabilities either the common law defence of due diligence or the statutorydefence provided by

section 161 of the TSA. [126] As a result, I find the Accused guilty of failing to yield to a pedestrian in a crosswalk contrary to s 41(1) of the Rules of theRoad Regulations. [127] After hearing submissions from the Crown and the Accused, I impose a fine of $1500.00, inclusive of the fine surcharge. This isa

Part II infraction, and as such, the penalty includes ten days in default of payment. However, based on the personal circumstances ofthe Accused, I am waiving the days in default – it is not in the public interest for her to potentially spend time in jail. Heard on the 28th day of August, 2023.

Dated at the City of Edmonton, Alberta this 23 rd day of January, 2024. D. Lefebvre A Justice of the Peace in and for the Province of Alberta Alberta Court of Justice Appearances: S. Daniele for the Crown J. Titosky for the Accused