Court File and Parties
Ontario Court of Justice
In the Matter of: An appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended
Between:
Her Majesty the Queen Respondent
— And —
Lori Goldhawk Appellant
Before: Justice Enno J. Meijers
Heard on: September 28, 2015
Reasons for Judgment released on: November 2, 2015
Counsel:
- Christopher Bennett, Municipal Prosecutor
- Neil Searles, Counsel for the Appellant
On appeal from: A conviction imposed by Justice of the Peace F. Mora on Wednesday, April 30, 2014
MEIJERS J.:
Introduction
1This is an appeal against conviction on a single count of "Turn not in safety" contrary to s. 142(1) of the Highway Traffic Act (H.T.A.) entered by His Worship Justice of the Peace Mora after trial held on October 31, 2013. The Appeal is pursuant to s. 135(1) of the Provincial Offences Act (P.O.A.) and is in effect a review of the proceedings below.
2While I am mindful of the broad range of evidentiary and dispositive powers s. 136 of the P.O.A. provides to an appeal court, I am also mindful that I ought not interfere lightly with the decision of the trial Justice who had the opportunity to observe witnesses and assess credibility first hand. Nor should I arbitrarily substitute my view in the matter.
Background and Issues
3The broad facts of this case are as follows:
(i) Just after 11:00 a.m. on August 12, 2013, the Appellant Ms. Lori Goldhawk was operating her motor vehicle, a BMW SUV southbound on Grey County Road 19. The weather was clear and dry and at that location Grey County Road 19 is a posted 60 kilometres, straight, level and paved road with one lane of travel in each direction. The roadway had a broken center line which indicated passing was allowed.
(ii) Ms. Goldhawk was following a pick up truck which was towing a boat and was operated by Russel Stockdale. She was followed by two other pick up trucks operated by Timothy Parrish and Ross Lawton. Mr. Clark was operating a motorcycle and had been travelling southbound behind Mr. Lawton. The vehicles were travelling fairly close together at or just below the speed limit.
(iii) As she approached Trails End Road, Ms. Goldhawk signaled and began to make a left hand turn onto Trails End Road. Mr. Clark, the motorcyclist was in the process of passing southbound traffic in the northbound lane, and his motorcycle struck the BMW SUV in the rear driver's side; the BMW being entirely in the northbound lane.
4At trial, the learned Justice of the Peace heard evidence from Donald Lawton, Timothy Parrish, Russell Stockdale, Constable Adam Dickie, Constable John Gee, Constable Corey Inman and Lori Goldhawk.
5Section 142(1) H.T.A. reads as follows:
Signal for left or right turn – 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.
6This section creates a strict liability offence which upon proof of the actus reus, ie. the unsafe turn, allows for the possibility of a defence of due diligence. The appellant agrees that in this case the actus reus was made out but argues that the defence of due diligence was also made out in the evidence before the learned Justice of the Peace at this trial.
Decision of His Worship Justice of the Peace Mora
7In his reasons for Judgment, the learned Justice of the Peace briefly recounted the evidence of the witness, and found that all crown witnesses were credible. He described the Appellant's evidence as candid. In the end he was satisfied that the vehicle driven by the Appellant turned left across the path of the motorcycle ridden by Sean Clark. He referred to Ms. Goldhawk's statement to police as follows:
And her statement was clear of what occurred when the motorcycle collided with her motor vehicle was – when she was turning left. She claims that she failed to observe a motorcycle approaching in the passing lane. She checked her mirrors. She put her blinker on and started turning; however, she failed to observe or to see that motorcycle.
He then went on to refer to the heavy onus upon a driver turning left to ensure the turnover can be done safely.
8His Worship concluded:
Therefore, based on the totality of the evidence, and taking into consideration the credibility of the parties and the relevant case law, I find on the facts of this case that the prosecution has proven this charge beyond a reasonable doubt and I find that the defendant is guilty of the charge. And the fine?
Position of Appellant
9Counsel for the Appellant has argued that evidence adduced at trial supports the Appellant's version of events; that she did, in fact, exercise due diligence, by taking reasonable steps to ensure the turn could be made safely, or at least held an honest but mistaken belief that the turn could be made safely.
10Counsel for the Appellant at paragraph 21 of his factum sets out a number of references to the evidence which he argues support these conclusions. He also supplemented those in oral submissions upon appeal.
11The Appellant's submissions center on the following issues:
(i) The evidence excessive speed at which the motorcycle ridden by Clarke was travelling would have made it less likely that the Appellant would be able to see the motorcycle before the collision despite taking reasonable steps;
(ii) The evidence of Mr. Lawton suggests that the motorcycle pulled into the passing lane simultaneous to or immediately before the Appellant began her turn; and,
(iii) The evidence of Mr. Stockdale is not reliable because his credibility is severely damaged by his evidence that he did not see whether the Applicant's turn signal was on before she turned, which other witnesses did see.
Evidence and Analysis
12Russell Stockdale, a retired police officer gave a clear description of the incident as he observed it (see transcript October 31, 2013 p. 23-4):
I was operating a pickup truck, towing about a 22-foot boat behind me. I was stopped south of the location where the accident occurred on Grey Road 19 at the lights at the intersection of the Mountain Road and County Road 21. I proceeded south on County Road 19, increasing speed to approximately 60 kilometres an hour. As I was towing the boat, I was watching fairly carefully behind me at the time. There was a number of vehicles behind me. I just had reached the speed of about 60 kilometres an hour when I looked in the mirror and I saw a motorcycle pull out into the northbound lanes, passing two or three vehicles, I'm not positive, behind me. And then all of a sudden, as I passed the second intersection south of the Mountain Road, the black SUV, a BMW – or a BMW turned left right in front of the motorcycle, and the motorcycle collided with the rear driver's side quarter panel of the black SUV. It was sunny that day, quite warm. It was just at the noon hour that this occurred.
13He confirmed that he saw the motorcycle turn out into the passing lane and that it had passed vehicles before Appellant turned out in front of him. He further testified that the Appellant's vehicle diagonally covered the passing lane when impact occurred.
14Counsel for the Appellant submitted that Stockdale's evidence should be discounted because he testified that he did not notice any indication that the Appellant's vehicle was about to turn left, while other witnesses all clearly testified that the Appellant turned on her turn signal.
15In my view, Stockdale's evidence was clear, concise and well corroborated by other evidence including the Accident Reconstructionist's evidence as to position of vehicles when the collision occurred (ie. Stockdale said BMW covered northbound lane diagonally, and Constable Inman put Area of Impact just ahead of the intersection at Trails End Road). His Worship Justice of the Peace Mora found Stockdale's evidence credible. Even if I were permitted to go behind the trial courts finding of credibility I would not be inclined to do so on the basis of possibility that Stockdale should have noticed whether the Applicant's turn signal was on.
16Constable Inman gave expert evidence in accident reconstruction and speed analysis. His evidence put the area of impact well into the northbound lane ahead of Trial End Road. He estimated minimum speed of motorcycle at beginning of a 27.43 meter skid mark as 81 kilometres an hour. He further testified that using various speed calculations, Human Reaction time factors and the beginning of the skid mark, the motorcycle was in northbound lane no less than 2.5 seconds.
17Counsel for Appellant argued that the motorcycle might have been in passing lane less time, and that perhaps the rider might have recognized the danger and reacted as he was pulling into the passing lane. Constable Inman testified that if such were the case he would not expect to find such a straight skid mark, but he did agree that he had no direct evidence about when the motorcycle in fact pulled into the passing lane. His Worship Mora did have evidence of when the motorcycle pulled into the passing lane in the testimony of Stockdale which as I have said His Worship found to be credible.
18The statement that the Appellant gave to police at the scene, was admitted into evidence. In it she said (see court transcript of October 31, 2013 at pp. 49-50):
"Answer, "I was driving towards Trail's End and turning left. My intention was to turn left onto Trail's End. As I got close, I put my blinker – put on my blinker and then started to turn. I heard brakes or something, tires or something squeal. Then there was the crash. The guy hit me, and I saw his helmet flying past my window. That's all I saw."
"How fast were you travelling?"
Question, "How fast were you travelling?"
Answer, "I have no idea. Not fast. I stopped my vehicle."
Question, "Is there anything else you can tell me?"
Answer, "I didn't see him in my mirror when he was passing. He wasn't in my mirror area at all."
Question, "Were there any other vehicles around you?"
Answer, "I was following traffic heading sound on 19. There was a guy pulling a boat in front of me. I think there was a vehicle heading the other way. I think a pickup truck.""
19She also testified at trial and described the incident as follows (see court transcript of October 31, 2013 at pp 126-127 and 132-134):
A. But I know I was proceeding at – at 50 or less than 50, I would say 40 to 50 kilometres an hour even from the point of being at the traffic light at Mountain Road through to Trail's End. When I started to decelerate, then obviously I've hit my brakes, I've turned on my blinker, I've looked, and I've looked in my mirror, and I'm also looking ahead in between this because my primary focus still is on road ahead in addition to trying to make a safe turn, and by the time I am nearing the start of the turn, I'm going very slow. I'm not in a hurry today at all. And I – I approach that intersection extremely cautiously. So I expect that, you know, I had decelerated to probably 20 to 25 kilometres at that point, and then I'm – I'm entering my turn, you know, going every bit as slow if not a tiny bit slower by then.
Q. And to the best of your recollection today, did you ever see the – the motorcycle in your side view mirror or over your shoulder?
A. No.
Q. Prior to making your turn?
A. No.
Q. Well, okay, you're turning, so that your – your intention is to make your car face – is it – it's eastbound, right?
A. Correct.
Q. So when you're – when you're turning your car to go eastbound, you look north and south to see if there's any other vehicles that are on the road that will affect your turn. Or do you?
A. Well, my – I'm looking south because that's the direction I'm driving in.
Q. Okay.
A. So I don't need to turn to look south, I'm already heading south.
Q. Okay. So if you look south, that would be vehicles that were travelling in the opposite direction or oncoming?
A. Oncoming.
Q. Okay. And do you look north?
A. Yes.
Q. Okay.
A. And that – it's almost simultaneously when I look north that tI hear that noise…
Q. Yes.
A. …the squeal.
Q. That's at the same time you're looking?
A. Almost. It's – it's – it's what – it's fractions of a second –
Q. Okay.
A. – different. And when we're talking about two and a half seconds total, it's very difficult to differentiate exactly, and I'd be – I'd be – it'd be strictly conjecture for me to say how much of a second it would be from the time I glance and then I hear that squeal and then I see the helmet come flying by and have the impact.
Q. So we're dealing with like an instant? It all happened in an instant type thing, from hearing the sound to – and I believe you even said even at the time of impact you see a helmet.
A. Yes.
Q. You didn't see – you don't even see the motorcycle at the time of impact –
A. No.
Q. – do you? Okay. But you agree, clearly it was – a motorcycle ended up striking your vehicle at that stage, right?
A. Absolutely.
Q. And it was the rear portion?
A. Yes.
Q. Of what side, driver or passenger side?
A. Driver.
20His Worship Mora described the Applicant's evidence as candid however, even granting latitude for fact that the Applicant had been in the accident, and was no doubt stressed by that, her account of the incident is much less clear and pointed than the other eye witnesses. Her description of her timing of looking in mirrors is fuzzy, and it appears last time she checked (and did not see) southbound traffic in northbound lane was essentially at the point of impact.
21It is clear on all evidence, including the Appellant's own evidence, that Mr. Clark was there to be seen, if one were to take reasonable step of looking, just as Mr. Clark was seen by Mr. Stockdale and Mr. Lawton.
22There was a heavy onus on the Appellant to determine if her turn could be made in safety before commencing the turn. Ms. Goldhawk did not see the motorcycle, but felt the collision after she had almost completed the turn. The evidence supports the conclusion that the last look she took was while she was already into her turn. Further the evidence supports the conclusion that that turn was not the crisp 90 degree turn she described but instead an angled turn which was begun well ahead of the actual cross road.
23It is clear from the facts in this case that the operator of the motorcycle Mr. Clark by operating his motorcycle at the speed he was and deciding to pass multiple cars was engaging in conduct that might very well have been a contributing factor to the accident. It is not however within the scope of the inquiry in this case to determine or apportion the degree of fault or liability on the part of each of the drivers relative to the other. Even if Mr. Clark was the primary cause of the accident (I'm not saying that he is) that would not in and of itself absolve Miss Goldhawk from liability for the offence with which she is charged.
24I understand Appellant's argument that Mr. Clark's actions were such that he would have scuppered any attempt at due diligence by Ms. Goldhawk; That is Mr. Clarke pulled out to pass in such an aggressive and speedy manner that Ms. Goldhawk's attempts at due diligence, checking her mirrors and blind spots, were frustrated by his actions. In my view, the evidence before the learned Justice of the Peace does not support that conclusion.
25Mr. Lawton testified that he saw in his rear view mirror Mr. Clark occupy the passing lane behind his vehicle. He then fixed his attention forward and saw the accused begin her turn. He estimated there were four or five car lengths between them when the accused commenced her turn. It is clear from his evidence that Mr. Clark was in the passing lane before the turn was commenced.
26Mr. Parrish testified that he saw Ms. Goldhawk signal left and at the same time as she was making her turn he heard Mr. Clark who was behind Lawton accelerating rapidly. He did not know the position of the motorcycle when the Appellant began her left hand turn. He testified there were about three car lengths between the accused and his vehicle, and that as he looked over when Mr. Clark pulled out he made visual contact with the motorcycle in the passing lane. He clearly testified that he did not know whether the motorcycle was accelerating from within the passing lane or upon entering it.
27Defence has argued that this sound of acceleration of the motorcycle must necessarily correspond to the motorcycle pulling out and beginning a pass. I am not so sure that is the only or even best inference. For example, a motorcyclist faced with an emergency situation may wish to accelerate rapidly to be able to place themselves into a safer position or the engine might rev because of a sudden disengagement of the clutch. Either way to draw the conclusion as to the location of the motorcycle based solely on the sound of the motorcycle accelerating is somewhat speculative. This is particularly so when it is contrary to the very clear with evidence of two witnesses who testified they actually saw the location of the motorcycle.
Conclusion
28Accordingly, in my view there is ample evidence to support the Learned Trial Justice's conclusion, and no evidence which would incline me to interfere with it.
29Appeal is dismissed.
Released: November 2, 2015
Justice Enno J. Meijers, O.C.J.