ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Prosecutor
— and —
JOSEPH JOHN NAZARK Defendant
Before: Justice of the Peace T.J. Howard
Trial heard: November 22, November 23, and December 22, 2023, in Burlington, ON.
Reasons for Judgment released: February 8, 2024
Counsel: Ms. Bhatnagar, S. ......................................................................................... for the Prosecution Mr. Craniotis, P. ............................................................................................ for the Defendant
JUSTICE OF THE PEACE T.J. HOWARD
Introduction
1Mr. Joseph John NAZARK is charged with one count of careless driving causing bodily harm or death, contrary to section 130(3) of the Highway Traffic Act, R.S.O. 1990, Chapter H.8 (the Act). He pled not guilty to the charge.
2The collision occurred at the intersection of Spruce Avenue and Starview Road in the City of Burlington, Ontario. Spruce Avenue and Starview Road meet at a “T” shaped intersection. Spruce Avenue runs east/west and forms the horizontal line of the “T,” while Starview Road runs north/south and forms the vertical line of the “T.” Northbound Starview Road runs upward, toward the top of the “T.”
3On June 21, 2022, at approximately 1:55 pm Mr. Raymond Girard was riding his bicycle eastbound on Spruce Avenue approaching the intersection. Mr. Nazark was driving his Nissan Sentra westbound on Spruce Avenue approaching the same intersection. Mr. Nazark made a left turn to proceed south on Starview Road when his vehicle collided with Mr. Girard.
4The collision caused bodily harm to Mr. Girard, including but not limited to, a scapular fracture, a left fibular fracture, lacerations, a crushed right ring, and pinky finger. The tip of Mr. Girard’s right ring finger had to be amputated below the first joint. Following an investigation by the Halton Regional Police, including the Collision Reconstruction Unit, Mr. Nazark was charged.
5The three-day trial took place on November 22, November 23, and December 22, 2023. For the reasons outlined here, I find Mr. Nazark guilty of careless driving causing bodily harm or death.
Position of the Parties
The Defense
6The facts outlined above are not in dispute. What is in dispute is whether Mr. Nazark’s driving immediately prior to the collision was careless.
7Mr. Craniotis, P. for the defendant argues that – in all the circumstances – Mr. Nazark was driving with due care and attention, and with reasonable consideration for other persons using the highway. Specifically, that Mr. Girard was riding his bicycle on the sidewalk prior to the collision, and continued to ride it into the crosswalk, which is improper, and thereby caused the collision. In other words, the Defense argues that even a reasonable and prudent driver in these circumstances would have collided with Mr. Girard, and thus, the actus reus of the offence is not proven beyond a reasonable doubt.
8The Defense also argues that there was an obstruction(s) present near the intersection that hindered Mr. Nazark’s ability to see Mr. Girard. Namely, a shadow cast by a large tree(s) situated southwest of the intersection – the direction that Mr. Girard was traveling from. Also, the Defense argues that Mr. Girard was travelling at a high speed for a cyclist.
9The Defense calls into question the reliability of the conclusions from the collision reconstruction analysis, pointing to a lack of continuity in the possession of the bicycle that Mr. Girard was riding. The bicycle was not seized by police at the scene, rather, it was taken home by Mr. Girard’s partner where it remained until police re-acquired it on July 6, 2022, to conduct collision reconstruction analysis. This was a period of 15 days.
10In finding that Mr. Girard was riding on the roadway, the collision reconstruction expert, Detective Constable Thien-An Vu used video surveillance images to compare the position of the bicycle’s handlebars relative to a fixed fence post. The Defense argues that it is impossible to know if the height of the handlebars was altered, thus rendering the conclusions faulty.
The Prosecution
11Ms. Bhatnagar, S. for the Prosecution argues that the evidence that Mr. Girard was riding on the roadway prior to the collision is clear and convincing. However, even if Mr. Girard was riding on the sidewalk, it does not negate Mr. Nazark’s culpability, as Mr. Girard had the right of way.
12The Prosecution, with reference to [Payne v. Lane, [1949] O.J. No. 65 (QL), [1949] O.W.N. 284 (O.H.C.) para. 7], argues that any driver making a left turn must first ensure that the movement can be made in safety, yielding the right of way to approaching traffic or pedestrians.
13The Prosecution also argues that the collision occurred in an unobstructed intersection, on a clear and sunny day, with no hazards present, and there was nothing preventing Mr. Nazark from making a safe left turn and avoiding the collision. Thus, Mr. Nazark caused the collision, and the resulting injuries to Mr. Girard by exhibiting a lack of due care and attention, or a lack of reasonable consideration for other persons using the highway.
Issues
14Mr. Nazark did not testify in this trial. Therefore, the only issue I need to resolve is whether the Prosecution has proven Mr. Nazark’s guilt beyond a reasonable doubt.
[15] Two central questions arise: i) Was Mr. Girard riding on the sidewalk? ii) If Mr. Girard was riding on the sidewalk, what can be said about Mr. Nazark’s driving behavior immediately prior to the collision?
16If Mr. Girard was riding on the roadway, there is no question that he had the right of way, as there were no stop signs/traffic lights on Spruce Avenue controlling eastbound or westbound traffic, and in that case, Mr. Nazark was certainly driving without due care and attention, or without consideration for other persons using the highway, based on all the evidence.
The Law
Careless driving – a strict liability offence
17The offence of careless driving causing bodily harm or death is contained at section 130(3) of the Act. It reads as follows: “Every person is guilty of the offence of driving carelessly who drives a vehicle or streetcar on a highway without due care and attention or without reasonable consideration for other persons using the highway and who thereby causes bodily harm or death to any person. 2017, c. 26, Sched. 4, s. 17” (emphasis added).
18Further, section 130(5) of the Act reads: “For the purposes of subsections (1) and (3), a person is deemed to drive without reasonable consideration for other persons using the highway if he or she drives in a manner that may limit his or her ability to prudently adjust to changing circumstances on the highway. 2017, c. 26, Sched. 4, s. 17.”
19It is clear from the wording of section 130(3) that there are two ways that a driver can drive carelessly. First, by failing to drive with due care and attention. Second, by failing to give reasonable consideration for other person using the highway (see [MacKenzie (Re), [1956] OJ No 439]).
20The Ontario Court of Appeal decision in R. v. Shergill, 2016 O.J. No. 1503 (CA) found careless driving to be a strict liability offence and outlined some key principles. The most relevant portions of that case are highlighted in Durham (Regional Municipality) v. Lin, [2016] O.J. No. 7134, para. 38:
In Shergill, the Ontario Court of Appeal set out important principles with respect to the provincial offence of careless driving contrary to the Highway Traffic Act:
Paragraph 22: "In light of jurisprudence since Beauchamp it would now appear to be settled law careless driving is a strict liability offence and, since mens rea is not a relevant factor for consideration, that the court ought not to look at the conduct to determine whether it is "blameworthy and deserving of punishment". To the extent that Beauchamp added that consideration as an element of the charge it has, in my view, been effectively overruled."
Paragraph 23: "...If, in the circumstances, the only reasonable inference to be drawn from the fact of an accident is that the defendant was operating his or her vehicle on a highway without due care and attention or without reasonable consideration for other persons using the highway then the actus reus has been made out. It then falls upon the defendant to establish that he or she reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or that he or she took all reasonable steps to avoid the particular event.
Paragraph 26: "...the gravamen of the offence of careless driving is inadvertent negligence. If the conduct of the defendant falls below the standard expected of a reasonably prudent driver in the circumstances, then it is negligent and deserving of punishment under Provincial careless driving provisions. If it does not fall below the standard expected of a reasonable person, then it is not negligence and does not amount to a lack of due care and attention."
Paragraph 28: "...If, given all of the surrounding circumstances, momentary inattentiveness by a driver does not constitute a departure from the due care and attention or reasonable consideration demanded of an ordinarily prudent driver then it cannot constitute the offence of careless driving and is not punishable. If the court considers that given all of the circumstances the degree of inattentiveness displayed by the defendant goes beyond what one would expect of a reasonably prudent driver in such circumstances, then the offence has been made out.”
"I emphasize that it is, in my view, incorrect to boldly state that momentary inattentiveness cannot constitute careless driving. The trier of fact must conduct an analysis of the evidence in each case and must measure the evidence of inattentiveness against the standard expected of a reasonably prudent driver."
Paragraph 30: ".... If, at the time of the alleged careless driving, the driver displayed a lack of due care and attention or reasonable consideration for other persons using the highway, then the offence is made out. It is of no consequence that for some period prior to the commission of the offence the driving had been proper. Each case must be determined on its particular facts. What is required is an analysis of the conduct of the driver at the time the offence is alleged to have been committed measured against the expectation of the conduct of a reasonably prudent driver."
21The law requires that I decide whether Mr. Nazark’s diving displayed inadvertent negligence or momentary inattentiveness that would cause it to fall below the threshold of what is expected from a reasonably prudent driver in the circumstances.
22While the legal standard is fixed, the factual standard is a constantly shifting one and requires a consideration of multiple factors such as traffic, road conditions, visibility, weather, etc. (see R. v. Beauchamp, [1952] O.J. No. 495 (CA) at para. 19).
23In cases where an accident is involved, such as this one, focus should remain on the driving behavior of the defendant, and should not stray to questions of civil liability, or who is more responsible for the accident (see R. v. Kinch [2004] O.J. No. 486 at para. 56). In this case, it would be improper to focus on who “caused” the collision, rather than determine if Mr. Nazark’s driving was careless in the circumstances.
Riding a bicycle on the sidewalk and/or crossover (crosswalk)
24The Act does not explicitly prohibit cyclists riding on the sidewalk. This activity is typically regulated by individual municipalities. In the City of Burlington, by-law 30-1982 (as amended by by-law 109-1997), schedule 28, section 4 prohibits cyclists from riding upon any sidewalk where an alternative bicycle path is available for bicycle use. In this case, it is not disputed that there was a marked bicycle lane on Spruce Avenue. Hence, Mr. Girard was prohibited from riding on the sidewalk.
25The Act does explicitly prohibit cyclists from riding in a crossover (crosswalk). Section 140(6) of the Act reads: “No person shall ride or operate a bicycle across a roadway within a pedestrian crossover. 2015, c. 14, s. 39 (2)”
26Further, section 144(29) of the Act reads: No person shall ride or operate a bicycle across a roadway within a crosswalk at an intersection or at a location, other than an intersection, which is controlled by a traffic control signal system. 2015, c. 14, s. 40 (2).
27Hence, in this case, Mr. Girard was also prohibited from riding through the crossover (crosswalk). It is self-evident that these regulations exist to prevent collisions and uphold public safety.
28The Defense position in this case is that Mr. Girard was riding on the sidewalk and into the crosswalk, which the Defense contends was dangerous for the reason just stated – it may lead to a collision with a motor vehicle.
Definition of sidewalk – is it part of the highway?
29The Act does not define the term sidewalk. The Act does, however, define the boundaries of a highway at section 1(1): “highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;” (emphasis added).
30In my view, this wording supports a conclusion that the sidewalk is part of the highway. Firstly, the phrase “or used by the general public for the passage of vehicles” suggests that the sidewalk is included. Many people – adults and children alike – use the sidewalk when riding bicycles [which are defined at section 1(1) of the Act as a vehicle]. This is true, whether the activity is prohibited by municipal by-law or not. Second, sidewalks are generally municipal property and are therefore situated within the lateral property lines of the highway. Sidewalks are clearly distinguished from the roadway, which is the portion of the highway used primarily by motor vehicles.
31For example, courts have found that the definition of “highway” in the Municipal Act, 2001, S.O. 2001, c. 25 includes both the boulevard and the sidewalk. (see York (Regional Municipality) v DiBlasi, [2014] OJ No 2546; R v Wassilyn, [2006] OJ No 2900; and [McQueen v. Niagara-on-the-Lake (Town) [1987], 9 A.C.W.S. (3d) 45]). In DiBlasi at para. 93 the Court found, “If the reasoning of Wassilyn and McQueen is applied to the issue at hand, then a "highway" under the Act includes a sidewalk and a boulevard and must also include the ditch within its parameters. This conclusion is bolstered by section 44(8) of the Municipal Act, 2001 that recognizes that some parts of a "highway" are untraveled.”
32As will become clear, whether the sidewalk makes up part of the highway is relevant in this case, but is not determinative.
Left Turns
33At section 142(1), which deals with turns, the Act reads: “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 …” (emphasis added).
34Further, in making a left 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 (see R. v. Tomizawa [2017] O.J. No. 3020 (C.J)).
35A safe turn requires that a driver make all reasonable efforts to see what is relevant around him/her, and this duty cannot be discharged simply by the driver’s claim that he/she did not see what he/she ought to have seen, unless there was a reasonable excuse for not seeing it (see Morrison v. Dunlap, [1959] O.W.N. 164 (C.A.)).
36In this case, Mr. Nazark had an ongoing duty to make a safe left turn – from start to finish – fully aware of his surroundings and the changing circumstances on the highway impacting his ability to turn safely.
Analysis and Findings of Fact
37In this case, it is not necessary for me to make a finding on the first issue: was Mr. Girard riding on the sidewalk? I will turn now to the second, hypothetical question: assuming Mr. Girard was riding on the sidewalk, what can be said about Mr. Nazark’s driving behavior immediately prior to the collision?
38The Crown presented evidence from four witnesses: the cyclist, Mr. Raymond Girard; the first officer on scene, Police Constable Michael Joukov; the officer in charge, Detective Constable Scott Stevenson; and the collision reconstructionist, Detective Constable Thien-An Vu. All witnesses testified credibly and reliably in my view. There is an open question about the reliability of Detective Constable Vu’s findings that Mr. Girard was riding on the sidewalk, as explained above, but the portion of his testimony that is most relevant to my conclusions is not affected by this question, as will be clear.
Events immediately prior to the collision and conditions at the intersection
39There is limited evidence about the events prior to the collision. I heard from Mr. Girard about his cycling immediately before the collision. Mr. Nazark did not testify, but did provide police with two statements – both of which were admitted after I deemed them voluntary following voir dires – about his driving immediately before the collision (see exhibits 4, 7a, 7b). I also viewed video footage from a nearby residence that captured a portion of the intersection and the collision itself (see exhibit 5).
40Mr. Girard testified that on June 21, 2022, just before 2pm he was riding his single-speed commuter-style bicycle eastbound along Spruce Avenue in the City of Burlington. He stated that he was wearing a green polka dot shirt, dark blue shorts, gold-yellow running shoes, and a backpack. He was not wearing a helmet. Mr. Girard estimated that he was riding about 20 km/h, based on the speed of passing cars. He was returning home from a nearby Shoppers Drug Mart. Mr. Girard is an experienced cyclist and knows the residential area very well. Mr. Girard stated that he was riding on the roadway about one foot from the curb approaching Starview Road. He noted that there was no stop sign facing him on Spruce Avenue.
41As he immediately approached and entered the intersection, Mr. Girard noticed a turning car that he described as silverish-blueish in color. He described that the driver did not see him, that he veered to his right, but was not fast enough and was struck by the front bumper of the vehicle on his left leg. He fell across the hood and was thrown to the ground. Mr. Girard explained that his memory is “patchy” after that point.
42I heard from Police Constable Joukov that he was one of the first responding officers. He investigated at the scene by identifying and speaking with Mr. Nazark, making notes, taking photographs, and canvassing for witnesses and other evidence. He located a nearby residence with a video camera situated on the front porch facing northeast toward the intersection. Constable Joukov reviewed the footage and seized it.
43The video footage captures mainly the front porch and yard of the residence. Only a tiny portion of the image from the video captures the intersection. Specifically, a portion of the southwest section of the intersection can be seen. Notably, there is a fence obstructing a clear line of sight of the full section of the southwest corner.
44The video reveals that prior to the collision both vehicular and pedestrian traffic was light. No vehicles or pedestrians are seen crossing the intersection just prior to the collision. Mr. Girard is seen riding his bicycle eastbound entering the intersection as Mr. Nazark’s vehicle is seen turning. Mr. Girard is seen veering slightly to his right before being struck by the front driver-side of Mr. Nazark’s vehicle. The vehicle comes to a full stop relatively quickly after striking Mr. Girard – it does not appear to travel a far distance. Mr. Nazark appears to have been travelling at a reasonable speed while making his turn.
45It is important to note, that it is difficult – if not impossible – to accurately judge distance based on the video footage. For instance, objects that are farther away in distance (from the camera), such as the school, the school fencing, the sidewalk, and the curb on the north side of the intersection (north side of Spruce Avenue) appear closer in the video than they truly are. This makes it difficult to determine where Mr. Nazark’s vehicle was at the point of impact, and how far it travelled afterward. This issue is not resolved by the collision reconstruction evidence. It is also not possible to determine if Mr. Girard was on the roadway or the sidewalk based on the video alone.
46Mr. Girard testified that the weather was clear and sunny at the time of the collision, and the roadway was clear. This is corroborated by the video, and by the photographs taken by Constable Joukov the same day, shortly after the collision (see exhibits 3a - 3m). It was approximately 2pm and the sun was almost directly overhead.
47Exhibit 3m is a photograph taken by Constable Joukov, looking eastbound on Spruce Avenue (the direction Mr. Girard was traveling) facing the intersection. It shows there is no stop sign or traffic lights for eastbound or westbound traffic. It also shows clearly visible pedestrian crosswalk signs on the north and sound side of the Spruce Avenue. There is a shadow cast from a large tree(s) covering a portion of the roadway and the sidewalk on the south side of Spruce Avenue. This shadow ends before the intersection begins – there is a considerable portion of the sidewalk leading to the crosswalk that is not shaded.
48Exhibit 3l is a photograph taken by Constable Joukov, looking westbound on Spruce Avenue (the direction Mr. Nazark was travelling) facing the intersection. It shows no stop sign or traffic lights either. It also shows clearly visible pedestrian crosswalk signs on the north and south sides of Spruce Avenue. A shadow is cast from a large tree(s) covering a portion of Spruce Avenue east of the intersection. The intersection itself is not shaded at all. In the distance, there is a clearly posted 40 km/h speed limit sign on the north side of Spruce Avenue. The unshaded portion of the sidewalk on the southwest corner of the intersection is also visible in this photo.
The collision
49Evidence about the collision itself came from Mr. Girard, Mr. Nazark’s statements, the photographs taken by Constable Joukov, and the collision reconstruction analysis by Detective Constable Vu. Detective Constable Vu was qualified as an expert in this trial and provided his opinion evidence on various aspects of the collision.
50Mr. Girard testified that he was struck on his left leg by the front bumper of Mr. Nazark’s vehicle. He collapsed onto the hood of the vehicle and was then thrown to the ground, where he came to rest. He is not sure what happened to his bicycle after the collision. He does not think he saw a turning signal from the vehicle, but was not sure. Mr. Girard’s resting position after the collision is consistent with the photographs taken of the scene shortly thereafter.
51The resting position of Mr. Nazark’s vehicle and of Mr. Girard is captured in photograph 3b, which was taken by Constable Joukov from the southwest corner of the intersection. It shows the front half of Mr. Nazark’s vehicle resting between the lines of the crosswalk that extend from the southwest to the southeast of the intersection. Mr. Girard, who is being tended to by paramedics, is lying southeast of the vehicle in proximity, and approximately upon the stop-line for northbound traffic on Starview Road.
52Mr. Nazark provided a brief verbal statement to Constable Joukov at the scene (see exhibit 4). In this statement, Mr. Nazark stated that he was making a turn when he hit Mr. Girard within the crosswalk lines. When asked if Mr. Girard was on the sidewalk prior to the collision, Mr. Nazark responded, “he was on the sidewalk.” Mr. Nazark stated that Mr. Girard was travelling eastbound on Spruce Avenue, but when asked if he saw Mr. Girard prior to the collision Mr. Nazark responded “no”.
53In a follow-up statement to Detective Constable Stevenson taken on July 5, 2022, Mr. Nazark provided additional details (see exhibit 7a and 7b). He stated that he had stopped his vehicle prior to making the left turn and proceeded at about 15 km/h when a bicycle “that was obviously on the sidewalk” struck the front of his car. Mr. Nazark states that he looked west onto Spruce Avenue before turning and did not see any cyclist on the roadway.
54Detective Constable Stevenson pressed Mr. Nazark on how he was sure Mr. Girard was on the sidewalk and not the roadway. Mr. Nazark stated that “there was no bicycle on the roadway”. He went on to state that there were no obstructions at the intersection, nothing wrong with his vehicle, and that he has no medical impediments to driving.
55Detective Constable Stevenson then put to Mr. Nazark observations from the video, which he stated, reveal that Mr. Girard was already in the intersection when Mr. Nazark began his left turn – that Mr. Girard was struck by the front driver side of Mr. Nazark’s vehicle, not the passenger side, as would be the case if Mr. Girard ran into the vehicle. Detective Constable Stevenson states to Mr. Nazark, that Mr. Girard would have been almost directly in front of his vehicle as he was making his turn. Mr. Nazark responded only with “I was totally shocked and couldn’t understand where he came from.”
56Detective Constable Stevenson testified that Mr. Nazark appears, based on the evidence, to have “cut the turn tight.” He made this determination based on the resting position of the vehicle relative to the stop-line on the northbound lane of Starview Road. This can be seen in photograph 3g. The vehicle is stopped in front of the stop-line. It is closer to the southeast corner of the intersection than is typical of a vehicle making this type of turn. This is relevant to an estimation of where Mr. Girard would have been when he was struck – again, assuming he was riding through the crosswalk from the sidewalk, as the Defense claims.
57This estimation is further assisted by images of the damage to Mr. Nazark’s vehicle. Photographs 3d and 3e show the front of Mr. Nazark’s vehicle. Clearly visible are scratches to the driver side of the hood, about halfway up. Less clear are scratches to the bottom part of the front bumper, but they are visible. There is also a clearly visible darkened area on the hood beside the scratches that appears to be fresh. Detective Constable Vu testified that this is consistent with a “wrap,” where a pedestrian falls onto the hood of a vehicle and disrupts “road grime” or dust that has accumulated on the hood.
58The exact point of impact could not be determined. Detective Constable Vu made an estimation of the point of impact, but admitted that it was only an informed guess. He estimated the point of impact to be about two-thirds of the way through the intersection, in front of the stop-line for northbound traffic on Starview Road, in-line with the assumed riding path of Mr. Girard (on the road). This is indicated by the letter “A” at figure 1 of his report (see exhibit 10). Of course, this is based on his finding that Mr. Girard was riding on the roadway.
59What was clear from Detective Constable Vu’s testimony is that Mr. Girard was hit by the front of Mr. Nazark’s vehicle, his body “wrapped” onto the driver side hood, and he was thrown to the ground following impact. These conclusions were drawn based on Detective Constable Vu’s expert training and experience in reconstructing these types of accidents. Importantly, this portion of Detective Constable Vu’s analysis and testimony is unaffected by questions of reliability due to the lack of continuity in possession of the bicycle. I accept that this portion of his evidence accurately describes how Mr. Girard was struck by Mr. Nazark’s vehicle. It is corroborated by the other evidence I have heard.
Conclusions – if Mr. Girard was riding on the sidewalk.
[60] The evidence discussed thus far leads me to conclude the following: i) When Mr. Nazark began his left turn, Mr. Girard was already at the cusp of – if not already inside – the intersection. Mr. Girard was certainly not in the shaded area of the sidewalk on the south side of Spruce Avenue. The video alone proves this. ii) Mr. Nazark’s vehicle struck Mr. Girard, not the other way around. Mr. Girard was in front of Mr. Nazark’s vehicle, on the driver side, at the time he was struck. Again, the video proves this. It is corroborated by the damage to Mr. Nazark’s vehicle (on the driver side of the hood), the resting position of Mr. Girard post-collision (ahead of, and on the driver side of the stopped vehicle), and Detective Constable Vu’s analysis of the collision type (a “wrap” onto the hood). iii) Mr. Girard was at least halfway through the intersection when he was struck. He was not struck near the southwest corner of the intersection, nor a quarter of the way through at the point of impact. All the evidence just noted demonstrates this. iv) There was nothing obstructing Mr. Nazark’s view of the intersection, or of the south sidewalk of Spruce Avenue leading into the crosswalk. In fact, there were bright yellow pedestrian crosswalk signs, intended to heighten the attention of drivers at this intersection, and Mr. Girard was wearing bright clothing. This is proven by the video, photographs, Mr. Girard’s testimony, and Mr. Nazark’s statements. v) If he was driving reasonably prudently, Mr. Nazark had adequate time to adjust his driving while making his turn to avoid colliding with Mr. Girard. His own statement, which is corroborated by the video, shows that he was travelling at a reasonable speed while making his turn. vi) Mr. Nazark ought to have seen Mr. Girard riding up to – and into – the intersection, even if he was on the sidewalk. Mr. Nazark’s statements to police indicate that he did not see Mr. Girard, either on the roadway nor on the sidewalk. Mr. Nazark simply inferred that Mr. Girard was riding on the sidewalk. vii) Thus, Mr. Nazark was not prudent in making a safe left turn – being either momentarily inattentive and/or inadvertently negligent – and his driving behavior fell below the threshold of what is expected of a reasonably prudent driver. There was nothing given in evidence by the Crown that would suggest a reasonable excuse not to see Mr. Girard approaching, whether on the roadway or on the sidewalk. viii) Ultimately, Mr. Nazark was not driving with due care and attention, or with reasonable consideration for other persons using the highway in the circumstances.
61The Defense argument turns on the allegation that Mr. Girard was breaking the law by riding on the sidewalk. However, I do not find this to be determinative. Even if Mr. Girard was riding on the sidewalk and through the crosswalk in contravention of the municipal by-law and the Act, reasonably prudent drivers have an obligation to adjust to such circumstances. This is clear from both section 130(5) and section 142(1) of the Act, as well as the pertinent case law. Again, it is an error to focus on civil liability and who “caused” the collision, rather than focus on Mr. Nazark’s driving. Mr. Girard is not charged in this case.
Was Mr. Girard riding on the sidewalk?
62This brings me back to the first question: was Mr. Girard riding on the sidewalk? Again, it is not necessary for me to answer this question. Having found that the sidewalk forms part of the highway, I find that Mr. Nazark had an obligation to consider those persons using the sidewalk before and during his turn. As outlined above, the evidence proves beyond a reasonable doubt that Mr. Nazark drove carelessly, without due care or attention, or in the alternative or in addition, the evidence proves that he drove without reasonable consideration for other persons using the highway. Thus, he is guilty of the charge and a conviction will be entered.
Justice of the Peace T.J. Howard