Court File and Parties

ONTARIO COURT OF JUSTICE (Toronto Region)

DATE: June 12, 2024 COURT FILE No.: 999 00 8010392Z-00

BETWEEN:

HIS MAJESTY THE KING (The City of Toronto)

— AND —

BRANDON LANGEVIN

Before: Justice of the Peace R. Rodrigues

Heard: April 24, 2024, May 13, 2024 Written Reasons: released on June 12, 2024 (via email) Oral Judgment: June 14, 2024

Counsel: Mr. I. Silvanovich...................................................................................... for the Prosecution Mr. Brandon Langevin……………………….……………………..……...self-represented

JUSTICE OF THE PEACE R. RODRIGUES:

Introduction

1On November 28, 2023, Brandon Langevin (“the Defendant”) was charged pursuant to subsection 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, ("the HTA"). Essentially the subsection deals with the rules surrounding safe turning on the road. It provides that a driver must not turn their vehicle – whether it be to the right or to the left – unless they can do so safely.

2The defendant entered a plea of not guilty and the trial proceeded on April 24, 2024 and continued May 13, 2024. The evidence before the court came from Police Constable Osborne (“Officer Osborne”) of the Toronto Police Service (“TPS”), a witness (“RT”), the cyclist involved in the accident (“JH”) and the defendant, who elected to give evidence in his defence.

3On May 13, 2024, and with the consent of the parties, I adjourned the matter to June 14, 2024 to provide the within reasons and judgment and, upon release of same, if necessary, to give the parties an opportunity to speak to sentence.

The Legislation

4Subsection 142(1) of the HTA states:

The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.

The Issues

5The main issue is whether the prosecution has proven the offence of right turn not in safety, beyond a reasonable doubt.

6At the conclusion of the evidence and submissions, there was no dispute as to the date, time, place, location, Municipality, identity of the defendant and that the defendant was driving a motor vehicle on a highway. As well, there is no dispute the defendant’s vehicle and JH’s e-bike collided on the alleged date and at the alleged intersection. Accordingly, I am satisfied the essential actus reus elements of the alleged offence have been established beyond a reasonable doubt.

7The remaining issues are whether the defendant took all reasonable steps, as a driver in the circumstances, to ensure he could make his right turn safely and, as such, his due diligence should exculpate him of the charge he is facing and/or whether he reasonably believed in a mistaken set of facts which, if true, would render his act or omission innocent.

The Evidence

8The relevant evidence is summarized below.

Officer Osborne’s Testimony

9Officer Osborne testified with the assistance of his notes, which he made shortly after his investigation, to refresh his memory. He stated he had an independent recollection of the events and there were no alterations, changes or deletions made to said notes. After receiving a 9:51 pm dispatch radio call regarding a “personal injury collision”, Officer Osborne arrived at the intersection of Danforth Avenue and Rhodes Avenue in the City of Toronto at 10:25 pm as an ambulance was leaving the area with JH, the cyclist, bound for a local hospital. The defendant, his wife, who was a passenger of the vehicle, JH’s father and a witness, RT, were at the scene. Officer Osborne observed a dent on the right front fender of the defendant’s vehicle, a Ford Bronco. He also observed the front wheel of JH’s e-bike and a pedal to be bent and the e-bike’s front headlight to be not on. Officer Osborne was satisfied as to the defendant’s identity based on a valid Ontario driver’s licence.

10It appears Officer Osbourne had a conversation with the defendant and RT, however, neither statement was proffered into evidence. Officer Osborne later attended at a local hospital and spoke with JH. He then returned to the scene, located three CCTV cameras mounted on a building housing a local business, and obtained footage of the events. The prosecution introduced the three short videos, discussed below.

11Officer Osborne further testified Danforth Avenue runs east-west with three lanes in each direction—a driving lane, a parking lane and a bike lane. The bike lane is marked with intermittent low concrete barriers and poles and there were no parked vehicles obstructing the cycling lane in the area approaching the intersection. Rhodes Avenue runs north-south with one lane in each direction. Officer Osborne added the area at the intersection was “well lit” with artificial lighting, including street lighting and road conditions were “clear” when he arrived. Based on his investigation, including conversations with the involved individuals and the damage to both vehicles, Officer Osborne proceeded to charge the defendant and testified “The vehicle proceeding through had the right of way—the cyclist.”

12The defendant had a single question for Officer Osborne—whether he determined, from RT, if the cyclist’s headlight was on. I did not allow this question as RT’s statement amounted to hearsay and was not necessary as RT had already testified “the cyclist did not have any safety reflections”, which she noted as she is a cyclist herself. When I asked Officer Osborne if, upon viewing the three videos, he was able to determine if the e-bike headlight was on, he testified it was “hard to tell” if the light was on or if the light was from an ”electronic display” on the e-bike.

13The said three short videos were introduced through Officer Osborne. The first video is nine seconds long and shows the defendant’s vehicle and the cyclist proceeding eastbound on Danforth Avenue very close to Rhodes Avenue. The vehicle’s right turn signal is clearly visible. The cyclist’s speed does not appear to be excessive as it proceeds in the cycling lane three to four car lengths behind the defendant’s vehicle. The cycling lane is well delineated with poles installed on intermittent cement barriers. The area appears well lit with City lighting and lighting from local businesses and the road conditions look dry and devoid of any precipitation. There are no obstructions to the cycling lane.

14The second and third videos, fourteen and fifty-four seconds in length, respectively, show the moment of impact between the defendant’s vehicle and JH’s e-bike. A rather violent impact, throwing JH about one and a half car lengths from the point of impact and wedging his e-bike underneath the front passenger side of the vehicle. Remarkably, I heard no evidence going to any injuries suffered by JH. Both of these videos show the witness, RT, facing and close to the site of the collision. Both videos also show the defendant’s vehicle making (as a result of the street markings and cycling lanes) a wide right-hand turn. Further, both the second and third videos show the moment of impact took place just as the defendant’s vehicle enters the well-marked cycling lane.

RT’s Testimony

15RT was walking westbound on Danforth Avenue, about half a block away from Rhodes Avenue, and saw the collision. RT was shown two videos produced by the prosecution (the third video surfaced after RT had ended her testimony and was excused from the court) and stated both videos to be a true depiction of what she observed. RT was unable to state if the e-bike hit the defendant’s vehicle or vice versa, stating “both happened at the same time”. RT descried the conditions as “quite dark out” and “a little dim”, “but some overhead light.” RT further testified “The cyclist did not have any safety reflections.”, adding she noted this as she is a cyclist herself.

JH’s Testimony

16As stated, JH was the cyclist involved in the collision with the defendant’s vehicle. JH recognized himself as the person riding the e-bike on all three videos shown and confirmed the videos amount to a true depiction of the events. He testified he was proceeding eastbound on Danforth Avenue on his e-bike in the cycling lane. He testified he saw the defendant’s vehicle turning and thought the driver saw him. JH described his vehicle as an e-bike, with a motor and adjustable speed, and he could not recall how fast he was travelling. He was wearing a black top and dark pants and was not wearing a helmet. JH acknowledged his e-bike has a light on the handlebar, but he was unable to recall if the light was on during the material time.

The Defendant’s Testimony

17The defendant testified he was driving home from the movies with his wife. He began to slow down his vehicle approximately one hundred feet before reaching Rhodes Avenue, while also activating the vehicle’s right-hand turn signal. He stated he is “very aware” of the cycling lane because, as a cyclist himself, he uses the cycling lane “daily”. The defendant stated he looked “in the blind spot” and the mirror, “did not see anything”, and began to turn right onto Rhodes Avenue when JH struck his vehicle. The defendant immediately stopped and attended to JH, while witness RT called 911. The defendant’s wife went to their home nearby to get some water for JH. In the meantime, first responders arrived, the defendant made notes of what transpired while waiting on scene, and later spoke with Officer Osborne.

18The defendant went on to specifically raise the defence of due diligence during his testimony. He began by testifying he “took all reasonable care” so the “event would not occur”, including going through “all the safety checks”. The defendant added “it was dark out” and JH, who was proceeding “quite quickly” was wearing “all black”. The defendant pointed to the first video, described above, which was replayed at his request, and pointed to a portion of the video, which appears to show JH’s e-bike not emitting any light and, a second later as emitting “a small smidgeon of light”. I allowed the defendant to enter into evidence an advertising photograph for, as the defendant claims, the same model e-bike JH was riding. As the defendant did not put the photograph to JH, I am unable to accord same more than minimal weight. However, and for the reasons stated below, whether the e-bike’s headlight was on or not does not change the end result.

19The defendant concluded by adding he and his wife are both “avid road cyclists” and “use that intersection daily as drivers and as cyclists” and he did “everything in his power to avoid an accident” and it was “impossible or very difficult” to see the cyclist as there was “no natural light and no bike light” and given JH’s “speed”.

20On cross-examination the defendant acknowledged the first video shows he passed JH prior to the collision. When asked if he saw the cyclist, the defendant stated, “it depends where my eyesight was approaching the street”. The defendant further testified his vehicle’s mirror allows him to see ten to fifteen feet back, including the blind spot, which he checked, and while driving he was able to see the parking lane and cycling lane on Danforth Avenue.

Positions of the Parties

21The defendant’s submissions essentially mirrored, and were restricted to, his testimony going to the due diligence defence, as outlined above.

22The prosecution submitted there is, by virtue of the word “shall” in subsection 142(1) of the HTA an obligation on a driver turning to the left or to the right at any intersection to first see that the movement can be made in safety. The prosecution added a driver must adjust to conditions and the only issue in this case is whether the defendant took all reasonable steps to avoid the collision. The prosecution submitted Officer Osborne testified the area was well lit with artificial lighting and there were no obstructions to the cycling lane and there is “an expectation” of e-bikes using the cycling lane.

23The prosecution submitted, while a standard of perfection is not required, nonetheless, here the defendant did not take all reasonable steps.

Analysis

24The offence of turn not in safety under subsection 142(1) of the HTA is a strict liability offence: R. v. Dillman, 2008 ONCJ 112 (“Dillman”); R. v. Goldhawk, 2015 ONCJ 626 (“Goldhawk”).

25There are two steps to a determination of whether the defendant is guilty of committing this strict liability offence. First, the prosecution has the burden of proving beyond a reasonable doubt the defendant has committed the actus reus of the offence or prohibited act set out in subsection 142(1). Should the prosecution meet its burden of proving the prohibited act, then in order to escape liability the defendant has the burden to prove, on a balance of probabilities, he took all reasonable steps, or took all reasonable care, to avoid, in this case, the collision or to prove that he reasonably believed in a mistaken set of facts which, if true, would render his act or omission innocent. Clearly, and as seen below, there will be some overlap with respect to the defendant’s testimony and submissions going to both aspects/branches of the due diligence defence.

26Here, in my view, and as stated above, the prosecution has proved all the essential actus reus elements of the offence. The defendant, while in the process of making a right-hand turn, and as his vehicle began to cross the clearly marked cycling lane, his vehicle struck, or was struck by, JH’s e-bike, which had the right of way, travelling along the adjacent cycling lane.

27With respect to the defendant’s belief in a mistaken set of facts, a branch of the due diligence defence, the defendant testified he reasonably believed, based on the dark clothing worn by JH, the lack of a headlight on JH’s e-bike, the lack of natural and/or sufficient lighting in the area, the e-bike’s speed and his checks of the vehicle’s blind spot and mirrors, that no e-bike was proceeding along the cycling lane as he was about to turn right onto Rhodes Avenue.

28Considering all the circumstances and the evidence before me, I am unable to find, on a balance of probabilities, the defendant’s belief to be objectively reasonable. The defendant acknowledged during cross-examination that, shortly before approaching Rhodes Avenue, his vehicle passed JH on the e-bike. Indeed, this is corroborated by the first video, which shows, for nine seconds, the e-bike travelling behind the defendant’s vehicle. This video also shows the vehicle displaying a right turn signal and slowing down. The last half of the first video further shows a small amount of light emanating from the handlebar area of the e-bike, although I am not able to find, based on this video and the testimony of JH, Officer Osborne and RT, the e-bike’s headlight was on. It is more likely the light seen on the video is from the e-bike’s multifunction LCD display on the handlebar as depicted in the Defendant’s Exhibit (No. 4) referred to above. I also note the e-bike, for the entirety of the video, and even as the defendant’s vehicle slows down to make the turn, never passes the defendant’s vehicle and this, in my view, runs counter to the defendant’s testimony and submission the e-bike’s “quick” speed contributed to the event at issue. As well, this first video also contradicts the defendant’s position there was insufficient lighting in the area. The video, taken at 9:43 pm, shows all three eastbound lanes (driving lane, parking lane and cycling lane) to be well lit—indeed, even the nearby sidewalk appears to be well lit.

29Lastly, I note the defendant, on cross-examination, when asked if he saw the e-bike testified, “it depends where my eyesight was approaching the street”. While the defendant’s response did not directly answer the question, it does suggest he may not have, during the material time, directed his eyesight to the cycling lane, which was entirely unobstructed, to ensure his turn could be made in safety as required by law.

30The Court of Appeal for Ontario has stated that the duty to look cannot be discharged by the driver simply claiming that s/he did not see what s/he failed to see unless there was a reasonable excuse for failure to see it: Morrison v. Dunlap, [1959] O.W.N. 164 (C.A.). Here, the defendant did not have a reasonable excuse for failing to see the e-bike and I am unable to find, on a balance of probabilities, he has made out this branch of the due diligence defence. The defendant passed the e-bike earlier, while approaching Rhodes Avenue. His vehicle is, as he testified, equipped with rear view mirrors, which he said he checked along with the blind spot. Further, as officer Osborne testified, and the first video clearly shows, there were no obstructions impeding the defendant from observing the well-marked cycling lane for a significant distance as both vehicles approached Rhodes Avenue and the area was well lit with artificial lighting. In short, the defendant’s reasons for not seeing the e-bike fall well short of his mandated duty to look to ensure the right turn could be made in safety.

31The defendant further contends that took all reasonable steps to look for cyclists and to ensure that it was safe to make the right turn from Danforth Avenue to Rhodes Avenue. In this regard, and here I disagree with the prosecution, while the defendant testified he is an avid cyclist, who uses the cycling lane and lives nearby the intersection where the collision occurred, which intersection he uses both as a cyclist and as a driver, it would be improper, and an error of law, to hold him to a standard higher than that of the average prudent driver, and I have not done so.

32In Dillman, Duncan, J stated, at paragraph 15, “It has been said that there is a heavy onus on a left turning vehicle to ensure that the turn can be made in safety: Payne v. Lane, [1949] O.J. No. 65, [1949] OWN 284 (Ont. H.C.)”. Justice Duncan then held at paragraph 19:

All of the circumstances must be considered in determination of whether a turn was made in safety. Where, as here, visibility of oncoming traffic is limited, it is my view that safety requires that the left turning driver make allowances for the predictable shortcomings and potential negligence of drivers who may soon appear. While it has sometimes been said that a driver is entitled to assume that other drivers will obey the roles of the road, I think there are limits to such an assumption particularly where there is an onus to do something "in safety". In my view the safe left turner is not entitled to assume that all other drivers will be strictly adhering to speed limits or paying perfect attention to the road ahead. On the other hand it would be an unreasonable standard of care and tantamount to imposing absolute liability to hold that the turn was not made in safety because an accident was caused by, for example, the gross speed or gross inattention of an oncoming driver.

33While Justice Duncan was considering a left turning vehicle, his observations clearly apply to right turning vehicles as well as such turns must, as well, be made in safety.

34In Goldhawk, cited above, Meijers, J again affirmed, at paragraph 22, there is a “heavy onus” on drivers to determine if a turn could be made in safety before commencing the turn. Further, in making a turn, a driver has an onus to ensure not only that the turn can be started safely, but that it can be continued and completed safely. Reasonable care must guide and direct the driver throughout the entirety of the turn: R. v. Tomizawa, 2017 ONCJ 302. In his testimony on direct, the defendant stated it was “impossible or very difficult” to see the cyclist. While it may have been “very difficult” to see the cyclist, this does not absolve the defendant of liability and, in my view, only serves to illustrate Meijers, J’s clear instruction to drivers, in Goldhawk, of their heavy onus to ensure a turn could be made in safety before starting the turn. Here the defendant failed to meet that required onus by failing, given all the circumstances and conditions during the material time, to see the e-bike, which he should have seen and notwithstanding it may have been difficult to do so.

35Here, the defendant had an ongoing duty to make a safe right turn, to ensure it was possible to start and complete the turn safely—that is, from start to finish, while being fully aware of his surroundings, including the lighting, and the changing circumstances on the highway impacting his ability to turn safely. In other words, the defendant must have been guided and directed by reasonable care throughout the entirety of the turn.

36In my view, the defendant failed to take the requisite reasonable care—this is especially so given his heavy onus to determine if his anticipated right turn could be made in safety—a turn the defendant decided to make, as he testified, some one hundred feet prior to arriving at the intersection, thereby according him ample time to take stock of his surroundings—including the well-marked cycling lane, with horizontal poles on concrete barriers located every ten feet or so, and the existence of artificial versus natural lighting. Having passed the cyclist a short distance before the collision while driving immediately next to the well-marked cycling lane, the defendant ought to have been aware of his surroundings and noted the presence of the cyclist. Indeed, the defendant testified the e-bike was travelling quite quickly, which indicates the defendant observed the cyclist at some point along his approach to Rhodes Avenue—a relatively long distance devoid of any obstructions between the driving lane and the cycling lane. The ensuing collision shows the defendant’s awareness of his surroundings fell well short of the required heavy onus to ensure the right turn could be started and completed in safety.

37As already stated, the defendant testified and submitted the dark clothing worn by JH, the cyclist, the lack of a headlight on JH’s e-bike, the lack of natural and/or sufficient lighting in the area, the e-bike’s speed and his checks of the vehicle’s blind spot and mirrors, that the turn could be made in safety. While I am unable to find, based on the evidence presented, the e-bike’s headlight was on, as Duncan, J instructed in Dillman cited above, when a driver is required to do something “in safety” there are limits to assumptions such driver can make that other drivers, including cyclists, will obey the rules of the road. So, even if the e-bike’s headlight was not activated and there was no other required reflecting equipment on the e-bike, this does not absolve he defendant of his heavy onus to ensure the right turn could be made in safety.

38For the reasons stated above, including my numerous viewings of the video evidence provided, I am unable to find the e-bike’s speed was excessive. In any event, and for the reasons stated in the preceding paragraph, even if the e-bike’s speed was excessive, this would not cause the defendant to discharge his onus. As well, JH’s dark attire during the material time is immaterial as it is not uncommon or illegal for people to wear all black, or dark clothing, while riding bicycles and e-bikes. Further, as already stated above and based on Officer Osborne’s testimony and my viewing of the video evidence, the area at issue approaching, and at, the scene of the collision was well lit allowing for darkly clad cyclists to be seen. Further, while artificial lighting at 9:43 pm in Toronto may not provide the same brightness as natural light on a sunny day at noon, this is one of the road conditions a reasonable and prudent driver is expected to consider when deciding whether the right turn could be started and completed in safety.

39For all the stated reasons, I find the defendant has failed to make out both branches of the defence of due diligence on a balance of probabilities.

Decision

40Based on the totality of the evidence and the foregoing reasons, I find that the prosecution has met its legal burden of proving that the defendant has committed the offence set out in s. 142(1) of the HTA beyond a reasonable doubt.

41I further find the defendant has not met his burden of proving, on a balance of probabilities, he took all reasonable care in the circumstances to ensure it was safe to start and complete the right turn at Rhodes Avenue, or that he reasonably and objectively believed, based on a mistaken set of facts, that it was safe to make the turn thereby rendering his unsafe right turn innocent.

42As such, there is a finding of guilt in connection with this charge and a conviction will be registered.

43I will hear the parties’ sentencing submissions on June 14, 2024.