COURT FILE NO.: 61/22 DATE: 2023/11/10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – EVAN BEEDAWIA Defendant

Counsel: S. Monaghan, for the Crown K. Marley, for the Defendant

HEARD: September 18, 19, 20, 21 and 22, 2023.

REASONS FOR JUDGMENT [^1]

Justice A. K. Mitchell

INTRODUCTION

[1] In the tragic circumstances of this case, a 4-year-old child lost her life, and her mother was seriously injured. Evan Beedawia’s failure to obey a stop sign at the northwest corner of the intersection of Melbourne Road and Glendon Drive in the County of Middlesex on the night of November 18, 2019, resulted in the death of Maria Bundur and seriously injured her mother, Oksana Pavlenko.

[2] Consequently, Evan Beedawia faces one count of dangerous operation of a “conveyance” causing death contrary to s. 320.13(3) of the Criminal Code of Canada (the “Code”), and one count of dangerous operation of a “conveyance” causing bodily harm contrary to s. 320.13(2) of the Code.

[3] I will begin by outlining the evidence at trial. I will then turn to the governing legal principles. Finally, I will apply those principles to the facts of this case.

EVIDENCE AT TRIAL

[4] Although no formal admissions of fact were made by the defence, for the most part, the evidence at trial was introduced on consent and/or was not in dispute.

[5] Mr. Beedawia testified in his own defence with the aid of an Arabic interpreter.

The Intersection

[6] It is undisputed on the evidence that the intersection has the following features:

• Glendon Drive is an east-west roadway and Melbourne Road is a north-south roadway.
• At its intersection with Melbourne Road, Glendon Drive is not controlled by a stop sign - motorists on Glendon Drive have the right of way.
• The intersection is controlled by two stop signs on Melbourne Road - one stop sign on the south-east corner facing northbound traffic on Melbourne Road, and another stop sign located on the northwest corner facing southbound traffic on Melbourne Road.
• There is no artificial lighting at the intersection.
• The posted speed limit on both Glendon Drive and Melbourne Road is 90 km/h.

The Circumstances of the Collision

[7] At approximately 8:00 p.m. on November 18, 2019, Vitali Bundur together with his spouse, Oksana, and their daughter, Maria, were heading home after attending Maria’s dance lesson at the Ukraine Centre in London. Mr. Bundur was driving the family’s Toyota Camry motor vehicle (the “Bundur vehicle”). Oksana was asleep in the front passenger seat and Maria was asleep in a front-facing car seat tethered to the rear seat behind Oksana. All occupants of the vehicle were belted. They were travelling westbound on Glendon Drive heading towards Glencoe when the collision occurred.

[8] At the same time, Mr. Beedawia, a commercial driver operating a Kenworth tractor trailer unit (the “transport truck”) was travelling southbound on Melbourne Road approaching its intersection with Glendon Drive (the “intersection”) from the north.

[9] Mr. Bundur recalls that immediately before the collision he was looking straight ahead at Glendon Road as he approached the intersection. He testified that the transport truck suddenly appeared in front of him. He said the truck “came out of nowhere” leaving him unable to react. Mr. Bundur recalls observing to his left approximately 100 meters before the intersection, a silver motor vehicle stopped at the southeast stop sign. This vehicle was later identified as James’ Tannahill’s Chevy Malibu motor vehicle.

[10] Mr. Bundur says that he did not observe the transport truck approaching the intersection from his right and remembers that his visibility to the north was not good due to a grove of trees blocking his view.

[11] Mr. Bundur described the driving conditions that evening as “perfect” with the road dark, but visibility good. The roads were not wet and there was no snow or other precipitation present.

[12] Mark Deleary witnessed the collision. Mr. Deleary had left his home located on Melbourne Road south of Glendon Drive approximately 5 miles south of the intersection, at approximately 8 PM. He was heading north on Melbourne Road at a speed of approximately 80 km/hr. As he approached the southeast stop sign, he recalls crossing over “rumble strips”.

[13] Mr. Deleary observed the headlights of a vehicle heading eastbound on Glendon Drive. After coming to a stop at the intersection, he proceeded to cross over Glendon Drive and continued north on Melbourne Road. Approximately 100 feet north of the intersection, Mr. Beedawia’s transport truck heading southbound passed Mr. Deleary on his left. He recalled thinking at the time that the truck was travelling quite fast. He described the truck making a “swoosh” sound as it passed by. He looked in his left side mirror and observed the collision and heard the impact. He could not recall hearing the sound of braking from either the transport truck or the Bundur vehicle prior to impact.

[14] Mr. Deleary estimated he was travelling at a speed of 40 to 50 km/hr when the transport truck passed his vehicle. He estimated the truck was travelling at a speed of approximately 60 to 70 km/hr. Upon observing the collision, Mr. Deleary did an immediate U-turn and returned to the intersection to assist.

[15] Mr. Deleary described the roads as dry and the weather as normal with no fog or rain present. He testified that at all times the weather remained clear. He had no difficulty observing the stop sign on the south side of Glendon Road.

[16] During cross-examination, Mr. Deleary admitted that when he was stopped at the intersection waiting to cross over Glendon Drive he did not observe the truck travelling southbound on Melbourne Road. Mr. Deleary further admitted that fog further up Melbourne Road may have obstructed his view and that he only travelled a short distance north on Melbourne Road after the intersection before turning around and returning to the scene of the collision.

[17] The other witness to the collision is James Tannahill. On the night of the collision, Mr. Tannahill lived in Strathroy. He had left his home shortly after dinner to purchase gas and cigarettes at a nearby gas station located on Melbourne Road. The gas station was located approximately five minutes south of the intersection. Mr. Tannahill was stopped at the southeast stop sign facing north at the time of the collision.

[18] Mr. Tannahill remembers a truck ahead of his vehicle heading north. The truck crossed over Glendon Drive and was approximately 100 feet north of the intersection when Mr. Tannahill first observed the headlights of the accused’s transport truck coming towards him approximately 100 meters north of the intersection. He further observed the Bundur vehicle travelling west on Glendon Road and remembered thinking to himself that the truck was not going to stop. He says he had no time to react or sound his horn.

[19] Mr. Tannahill testified that the transport truck and the Bundur vehicle entered the intersection at the same time. He observed the Bundur vehicle to hit the rear of the trailer of the accused’s transport truck. He described there being “an explosion of glass”. The force of the impact projected the Bundur vehicle straight upward and it landed on the hood of Mr. Tannahill’s vehicle. All airbags within his vehicle deployed. Mr. Tannahill estimated both vehicles were travelling at the posted speed limit of 80 to 90 km/h at the point of impact. He did not observe either vehicle to break or swerve or engage in other defensive movements before the collision and neither vehicle sounded its horn.

[20] Mr. Tannahill recalls it being a clear night. He further remembered a deer standing in the ditch approximately 10 to 15 m from his vehicle as he passed by heading to the gas station. He testified that his visibility was entirely unobstructed. He said that he could see all vehicles clearly. The first time he detected the transport truck was 100 yards north of the intersection.

[21] On cross-examination, Mr. Tannehill testified that when stopped at the intersection there was no fog, and the road was dry. However, he remembers it starting to “spit” after the first responders arrived. Mr. Tannehill noted that he had no difficulty stopping his vehicle at the stop sign. During cross-examination, he admitted that the headlights on the transport truck and the cab of the truck sit higher above the road than a regular passenger vehicle. In response to the suggestion that there may have been low level fog below the lights of the truck, Mr. Tannehill pointed out that he did not observe any fog illuminated by his own vehicle’s headlights.

Expert Evidence

[22] Police Constable Cory Rowsell (“PC Rowsell”) was qualified as an expert in accident reconstruction. A collision reconstruction report prepared by PC Rowsell was filed as evidence at trial on consent.

[23] PC Rowsell attended at the scene of the collision at 10:40 PM on November 18, 2019. He surveyed the collision scene and noted tire marks and gouges in the road and vehicle debris. He created damage profiles, photographed the scene including the interior and exterior of the three vehicles involved in the collision, and conducted “forensic mapping”. He took an image of the transport truck’s engine control module (the main computer that monitors and controls the subsystems of the truck) and analysed its data for purposes of preparing his report.

[24] PC Rowsell noted that at 10:40 PM there was a light fog and mist in the area of the collision. It was damp but there was no precipitation. It was approximately 0°C.

[25] PC Rowsell noted in his report that according to Environment Canada, at the time of the collision the temperature at the nearest location reporting hourly data, being the London Airport, was approximately 1°C with a light wind. Fog was indicated. He estimated the London airport was approximately 40 km from the intersection. PC Rowsell testified that heavy fog rolled into the area during his investigation at the scene.

[26] PC Rowsell made four video recordings – 1 the night of the collision and 3 the following day. All video recordings were made exhibits at the trial. In one recording, PC Rowsell is travelling southbound on Melbourne Road during daylight hours on November 19, 2019 operating a pickup truck. He is travelling at 90 km/h. He narrates what the viewer observes and hears in the video recording. It is noteworthy that the sound of PC Rowsell’s pickup truck passing over the rumble strips can be heard. PC Rowsell said that he was able to feel the vibration as the vehicle passed over the rumble strips. During cross-examination, PC Rowsell acknowledged he did not attempt to simulate the sound and vibration of the rumble strips while driving a transport truck.

[27] PC Rowsell’s trial testimony was consistent with the contents of his report and was not materially challenged by defence counsel. Consistent with the evidence of Mr. Deleary, Mr. Tannahill and Mr. Bundur, PC Rowsell testified that:

• At the time of the collision, the area of the collision was dark with no artificial lighting.
• The condition of the transport truck was unremarkable - the tires had sufficient tread and were properly inflated.
• He noted catastrophic front end and rear passenger side damage to the Bundur vehicle. The passenger side C-pillar area and roof were significantly damaged. All passengers and the driver in the Bundur vehicle were belted. Maria was seated in a front facing car seat in the rear passenger side of the vehicle.
• The Chevrolet Malibu motor vehicle was stopped at the southeast stop sign facing north on Glendon Drive at the time of the collision. This vehicle suffered damage caused by the secondary impact. Its front bumper was damaged, and its hood and fenders were damaged. There was no apparent interior damage to this vehicle.
• He noted that Mr. Beedawia was operating a Kenworth tractor trailer unit. Immediately following the collision, the transport truck was found jackknifed in the west ditch on Melbourne Road south of the intersection oriented south with the tractor portion of the truck facing east.
• He noted that the Bundur vehicle was resting near the southeast corner of the intersection facing northwest near the stop sign.
• He observed Mr. Tannahill’s Chevrolet Malibu at rest just south of the intersection adjacent to the Bundur vehicle which was facing southeast.
• At approximately 110 m prior to the point of impact Mr. Bundur had a continuous unobstructed view of traffic approaching the intersection heading southbound. He was of the opinion that Mr. Bundur would have had a clear sightline north on Melbourne Road to the headlight beams of Mr. Beedawia’s transport truck 14 seconds prior to impact.
• PC Rowsell noted that the south edge of the farm field had a sparse tree line along Glendon Road east of the intersection and there was a break in the trees approximately 350 m east of the intersection. He concluded that as Mr. Beedawia travelled southbound on Melbourne Road, he would have had a clear view of westbound traffic on Glendon Drive across a harvested farm field at the northwest corner of the intersection.
• There was no evidence of pre-impact braking or evasive measures taken to avoid the collision by either Mr. Beedawia or Mr. Bundur.
• Mr. Beedawia would have travelled over a series of six rumble strips as he approached the stop sign and noted a “stop sign ahead” advisory sign before the intersection. At the northwest corner of the intersection was an oversized stop sign and a well-defined stop line.
• Both the Bundur vehicle and Mr. Beedawia’s transport truck were travelling at or near the posted speed limit of 90 km/h at their point of impact. PC Rowsell described the force of the impact of the Bundur vehicle hitting the transport truck as analogous to the vehicle “hitting a wall” with the speed of the Bundur vehicle reduced to 0 km/hr upon its impact with Mr. Beedawia’s transport truck.
• There was no evidence to support a finding that Mr. Beedawia had stopped the truck at the stop sign. He opined that if the truck had stopped before proceeding into the intersection it would have accelerated to the point of impact to approximately 15 km/h. In his opinion, the collision would not have occurred as the Bundur vehicle would have passed by the point of impact before the truck would have been able to travel the 83 m at 15 km/hr.

[28] PC Rowsell concluded that the collision occurred as a result of Mr. Beedawia failing to stop at the northwest stop sign at Glendon Drive.

The Aftermath

[29] The first of the responders to arrive on the scene was police constable Cortis Cornelius (“PC Cornelius”), a member of the Munsee Delaware Nation police service. He was dispatched to the scene of the collision at 8:17 PM and arrived at 8:26 PM. He observed the transport truck in the west ditch on Melbourne Road and observed the Bundur vehicle with heavy front-end damage. He approached the vehicle and observed a child seated in a car seat in the rear passenger side of the vehicle and an adult female in the front passenger seat. He attempted to render assistance to the child. After placing a neck collar on the child, he removed her from the vehicle after which she was attended to by another officer who performed CPR. PC Cornelius had no further involvement in the matter.

[30] PC Cornelius recalls the temperature being 4° or 5°C at the start of his shift at 3 PM but admitted it was likely cooler by the time of the collision. The roads were dry, and the sky was clear. During the two hours on the scene, PC Cornelius did not notice any fog.

[31] PC Cornelius says he approached the scene from the south heading north and described the area as flat. He noted there were no trees close to the intersection, rather he observed only residences and a business.

[32] Police constable Mark Lefevre (“PC Lefevre”), employed with Oneida police service, was also dispatched at 8:19 PM and travelled west on Jubilee Road and then northbound on Melbourne Road arriving at the scene shortly after PC Cornelius. He recalls the weather conditions as dry and dark and noticed no fog in the area.

[33] PC Lefevre observed PC Cornelius and another individual enter the rear of the Bundur vehicle. PC Lefevre assisted in removing the child from the rear of the vehicle and he performed CPR until the paramedics arrived. He assisted in extricating the adult female from the front passenger seat. At 8:40 PM he collected vehicle information from the scene and took a witness statement. He remained at the scene until 10:30 PM. While at the scene, PC Lefevre noted no changes in the weather.

[34] Sgt. Ryan Griffith (“Sgt. Griffith”) was dispatched at 8:20 PM and arrived at the scene of the collision at 8:29 PM. Sgt. Griffith travelled to the scene eastbound from Strathroy and northbound on Melbourne Road south of Glendon Drive. He recalls the weather was clear, the road was damp, and the air temperature was approximately 0°C. Upon arriving, he observed the transport truck on the left side of the road in the ditch south of the intersection and two passenger vehicles on the south side of the intersection on Melbourne Road. He left the scene and returned at 12:27 AM. He testified that he did not observe any changes in the weather conditions while on scene. Upon returning to the scene at 12:27 AM, he noted the presence of a “very thick fog”. Roads remained damp and he acknowledged during cross-examination that fog may have caused the dampness.

[35] OPP constable Dominec Coniglio (“PC Coniglio”) was dispatched to the scene of the collision at 8:17 PM and arrived at the intersection at 8:33 PM. He took a statement from Mr. Tannahill. He also spoke with the accused and placed him in the rear of his police vehicle; however, did not place Mr. Beedawia under arrest. At Mr. Beedawia’s request, he retrieved the accused’s phone and passport from the transport truck. He described the accused as “very cooperative”.

[36] PC Coniglio recalls that the condition of the roads was dry. He testified that while on the scene, fog rolled through although he noted no fog upon arriving at the intersection.

The Log Book

[37] Police Constable Robert Enzin (“PC Enzin”) was tasked with investigating the electronic logs relating to the accused’s driving during the 14-day period prior to the collision (November 3 – 18, 2019). PC Enzin explained that the logbook regulates the hours of service of a commercial driver in Ontario. He explained that all commercial drivers are required to complete the logbook when travelling outside of a 160 km radius. The driver creates and submits the log indicating time spent sleeping, off-duty, on-duty and driving, as the case may be.

[38] According to PC Enzin, a commercial driver must have a full 24-hour period off-duty after a seven consecutive day block on-duty. A driver is permitted to drive for 13 consecutive hours with a maximum of 14 hours on duty, including driving time, which must be followed by an eight-hour period of rest or off-duty time.

[39] During cross-examination, PC Enzin clarified that time spent “off-duty” requires that the driver do no activities related to the vehicle. Time spent “on-duty” includes time when the truck is being loaded and unloaded and time spent working but not driving the vehicle. On-duty time cannot exceed 14 hours in a 24-hour period and driving time cannot exceed 13 hours in a 24-hour period.

Mr. Beedawia’s Evidence

[40] At the time of the collision, Mr. Beedawia was 30 years of age, married with two children and living in Windsor, Ontario. He was working as a commercial driver. On November 18, 2019, he was working for the owner of the vehicle and was moving freight for M & M Truck Systems, the owner of the trailer.

[41] At the time of the collision, Mr. Beedawia held a special license permitting him to drive commercial vehicles, including transport trucks. He received approximately 2 to 3 months of training before taking an exam which he passed on his third attempt.

[42] On November 18, 2019 Mr. Beedawia started his shift driving the transport truck from Windsor to Strathroy where he loaded the trailer with spare auto parts and delivered his freight to Toledo, Ohio crossing to the United States at the Sarnia/Port Huron border. He had been driving this same route for approximately three months prior to November 18, 2019.

[43] Typically, after unloading the freight in Toledo Mr. Beedawia would return to Windsor and his shift would then be at an end. However, on November 18, 2019 upon arriving in Toledo, he was asked to return to Strathroy to collect another shipment of parts. This second run was unanticipated and unwelcomed.

[44] Mr. Beedawia testified that he had travelled Melbourne Road almost daily in the months prior to the collision. However, he had not driven on Melbourne Road in the dark prior to the date of the collision and only infrequently had he driven southbound on Melbourne Road.

[45] Mr. Beedawia admitted he had incorrectly logged being off duty at the time of the collision. He explained that he entered the wrong information because he was told he had to wait two hours to be loaded again in Strathroy. He denied any intent to deceive.

[46] Mr. Beedawia testified that when leaving the factory in Strathroy for the second time on the evening of November 18, 2019, he recalls it was dark, cold and there was a “bit of fog”. He explained that while driving on Melbourne Road the fog was at eye level and the road was not visible. Mr. Beedawia says he was aware the speed limit on Melbourne Road was 90 km/h.

[47] During cross-examination, Mr. Beedawia admitted that he did not reduce his speed to account for his reduced visibility. Instead, he maintained his speed at the posted limit of 90 km/h. Mr. Beedawia admitted to being aware of two stop signs on Melbourne Road but could not remember where these stop signs were located. He testified that he did not remember that the intersection with Glendon Drive was controlled by a stop sign on Melbourne Road.

[48] He testified that as soon as he passed the northwest stop sign, he saw the Bundur vehicle coming towards his truck from the left. Mr. Beedawia says he did not observe either Mr. Tannahill’s vehicle or Mr. Deleary’s vehicle prior to the collision.

[49] Mr. Beedawia is a smoker, and he recalls that the driver’s side window was rolled down as he approached the intersection. Mr. Beedawia says he did not see the sign warning of the approaching stop sign and did not see the northwest stop sign because of the darkness and fog.

[50] With respect to the rumble strips, Mr. Beedawia testified that he did not hear or feel the six sets of rumble strips as he travelled over them when approaching the intersection. Mr. Beedawia explained that prior to November 18, 2023, his only experience with rumble strips was when travelling over them on a highway where these strips are positioned vertically on the outer edge of the lane, rather than horizontally across the roadway as is the case on Melbourne Road. Mr. Beedawia admitted on cross-examination that it was possible he did not hear or feel the rumble strips because he was upset and, therefore, distracted.

[51] During cross-examination, Mr. Beedawia acknowledged that commercial vehicles pose a bigger threat to the public than other vehicles using the road. He acknowledged that as a commercial driver, he is required to reduce his speed when visibility is reduced because of the increased danger to the public associated with such reduced visibility.

[52] Mr. Beedawia admitted that he was upset with having to do a second run and was distracted when completing the logbook. He further admitted that the fog was a distraction for him. During cross-examination, he agreed that it would have been prudent to reduce his speed when he encountered fog. He admitted that he continued to drive at the posted speed limit notwithstanding that his ability to detect road signs was compromised by the fog.

[53] Mr. Beedawia acknowledged that his decision not to reduce his speed in the circumstances was a dangerous one.

Cause of Death of Maria

[54] The report of the pathologist, Dr. Elena Tugaleva (“Dr. Tugaleva”), was entered into evidence on consent. Dr. Tugaleva identified the immediate cause of Maria’s death as severe head and neck trauma. It is undisputed that Maria’s fatal injuries were caused by the collision.

Injuries Suffered by Oksana

[55] Similarly, Oksana’s medical records were entered into evidence on consent. These records indicate that as a result of the collision Oksana suffered a spinal fracture, kidney laceration, liver hematoma and fractures to the fingers of her left hand.

POSITIONS OF THE PARTIES

[56] The defence argues that the driving of the accused was not dangerous and should not attract criminal liability. At worst, Mr. Beedawia’s manner of driving could be considered civil negligence or careless driving. The defence submits the collision was a terrible accident with horrible consequences, but Mr. Beedawia’s driving did not rise to the level for which criminal sanctions should attach.

[57] The Crown is of the view that the accused failed to take the necessary precautions to ensure he was able to stop at the controlled intersection of Melbourne Road and Glendon Drive and that Mr. Beedawia’s driving in all of the circumstances was dangerous because it was a marked departure from that of a reasonable person exercising reasonable care in the circumstances.

LEGAL FRAMEWORK

[58] The offence of dangerous driving resulting in death and/or bodily harm is set out in the Criminal Code as follows:

320.13(1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.

(2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.

(3) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.

[59] This provision amended the prior offence of dangerous driving and came into effect in 2018. The amended provision governs the allegations in this case which occurred in 2019. Prior to the amendments, the offence of dangerous driving was governed by s. 249 of the Code which read, in part:

249 (1) Everyone commits an offence who operates (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

[60] The most notable aspect of the amended provision is the omission of the former words, "including the nature, conditions and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place".

[61] Appellate-level case law dealing with the offence of dangerous driving deals with dangerous driving in the context of former s. 249. I find that s. 320.13(1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public. is meant to capture the same offending conduct as former section 249. Accordingly, for purposes of my analysis I conclude that I must consider "all of the circumstances", including those set out in former s. 249, and potentially other relevant circumstances.

[62] The Supreme Court of Canada has provided instruction to trial judges in numerous judgments related to the offence of dangerous driving. Of note, is its decision in R. v. Beatty [^2]. The Supreme Court restored the trial court’s acquittal in the case of an accident which gave rise to the dangerous driving charge which occurred when the accused’s vehicle, for no apparent reason, suddenly crossed the solid centreline into the path of an oncoming vehicle, killing all three occupants. By all accounts, before this sudden movement across the centre line, the vehicle had been operated in a proper and prudent manner. There were no mechanical issues with the vehicle, and intoxicants were not a factor. The accused testified at trial that he didn’t know why the accident had happened and gave his best guess that he either lost consciousness or had fallen asleep.

[63] The central issue was whether this momentary act of negligence was sufficient to constitute dangerous driving causing death. The trial judge concluded that these few seconds of negligent driving could not, without more, support a finding of guilt. The Supreme Court held the same view.

[64] The majority of the Court affirmed its prior determination of a modified objective test for negligence-based criminal offences, such as dangerous driving. The court modified the objective norm for civil negligence, by requiring a "marked departure" from the standard expected of a reasonably prudent person, so as to support a finding of criminal negligence with allowances made for incapacity and mistake of fact.

[65] In Beatty, the Court considered that the accused had been driving properly, but then for a matter of seconds crossed the centre line, for reasons unknown. The trial judge characterized the driving as a loss of awareness - a situation of negligence that would attract civil liability but not a marked departure from the standard of care of a prudent driver.

[66] The Court went on to consider potential exculpatory defences, such as the driver who, without prior warning, suffers an unexpected medical episode such as a heart attack, epileptic seizure or detached retina. The Court reasoned that as a result of the sudden onset of a physical disability, the manner or act of driving would be dangerous, yet those circumstances could negate the mens rea and provide a complete defence despite the objective demonstration of dangerous driving.

[67] The Court further instructed that the trial judge is not to add to the analysis any personal characteristics of the accused, such as youth, mental development and education. There is, for example, no fluctuating standard of comparing a young and inexperienced accused with a corresponding reasonably prudent young and inexperienced driver. The test incorporates the context of the events surrounding the incident, not the personal characteristics of the accused. [^3]

[68] However, I find this general principle is subject to recent developments in the caselaw which support a modified standard for commercial drivers. This modified standard is more fully discussed below in the context of the mens rea component. Consequently, I find that the standard against which Mr. Beedawia’s conduct must be viewed, is the conduct expected of the reasonably prudent commercial driver in the circumstances in which the accused found himself.

[69] The Supreme Court in Beatty articulated the test to be met by the Crown to establish the actus reus and mens rea of the offence of dangerous driving. [^4] With respect to the actus reus, the court wrote:

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place".

[70] When considering the actus reus, I am required to focus on the risks created by Mr. Beedawia’s manner of driving and not the consequences arising from his driving. As was noted by the Supreme Court in R. v. Roy [^5] at para. 34:

In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, “The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the drop manner of driving” (emphasis added). The manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.

[71] With respect to mens rea, the Court in Beatty wrote:

The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

[72] In terms of the mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind such as intent, recklessness or wilful blindness.

ANALYSIS

[73] To find Mr. Beedawia guilty of dangerous operation of a motor vehicle causing bodily harm or death, Crown counsel must prove each of the following four essential elements beyond a reasonable doubt:

1. the accused operated a conveyance [^6];
2. the accused operated the conveyance in a manner that was dangerous to the public;
3. the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonably prudent person would have exercised in the same circumstances; and
4. the accused’s dangerous driving caused the bodily harm or death alleged.

[74] I am able to resolve certain uncontentious issues before I begin my more fulsome analysis.

[75] The transport truck is a motor vehicle and therefore a “conveyance” as that term is defined in s. 320.11 and referenced in s. 320.13 of the Code. Likewise, as the driver of the transport truck at the time of the collision, Mr. Beedawia is deemed to have been operating the transport truck as the term “operate” is defined in s. 320.11 and referred to in s. 320.13 of the Code.

[76] Furthermore, I find that Maria and Oksana were members of the public within the meaning of s. 320.13(2) and (3) of the Code.

[77] On the facts of this case only two essential elements are in issue. They are, the act requirement – whether Mr. Beedawia operated the transport truck in a manner that was dangerous to the public and the mental or fault requirement – that is, whether his driving constituted a marked departure from the standard of care which a reasonably prudent commercial driver would have exercised in the same circumstances. These elements will be addressed individually.

[78] Before doing so, I will comment on the applicability of the principles in R. v. W.(D.) [^7].

[79] Since Mr. Beedawia testified, I am bound to consider the direction set out in W.(D.). W.(D.) is a credibility instruction as follows:

1. First, if I believe the evidence of the accused, I must acquit.
2. Secondly, if I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit.
3. Thirdly, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[80] But this does not mean that such an instruction is appropriate in all cases where an accused gives evidence. When a case does not turn on credibility issues such as a case of criminal negligence and none of the evidence of the accused negates any essential element of the offence, the W.(D.) instruction is unnecessary. [^8]

[81] A significant amount of trial time was spent addressing the weather conditions and eliciting evidence from the various witnesses to assist the court in determining whether there was fog present at the time Mr. Beedawia was travelling southbound on Melbourne north of the intersection which fog may have obscured the visibility of warning signs and cues and the stop sign itself as Mr. Beedawia claims. However, the verdict in this case is not dependent on a finding of whether fog was present. The application of the principles in W. D. works against Mr. Beedawia’s interests in this case. Mr. Beedawia’s evidence was inculpatory more than it was exculpatory. He admitted that the decisions he made while driving in foggy conditions were dangerous. He admitted that notwithstanding the presence of fog, he did not reduce his speed.

[82] With those comments in mind, I will proceed to consider the act requirement and the mental requirement of the offence of dangerous driving.

(i) The Act Requirement

[83] I must first consider all the circumstances relevant to an assessment of Mr. Beedawia’s manner of driving. I am reminded that the focus is on the risks, if any, created by Mr. Beedawia’s manner of driving, not on the consequences of the subsequent collision. This is an objective standard.

[84] Immediately prior to the collision, Mr. Beedawia was driving southbound on Melbourne Road, a paved two-lane country road running through farm fields. He was operating a transport truck in the course of his employment duties as a commercial driver. He was alone in the truck. He was not intoxicated by alcohol or other drugs. It was dark and by his account, it was also foggy. He was hauling a trailer loaded with automotive parts.

[85] Mr. Beedawia had travelled Melbourne Road on many occasions prior to the evening of November 18, 2019, although never in darkness. He was aware of two intersections on Melbourne Road controlled by stop signs but was not aware of the location of these stop sign controlled intersections along his path of travel on Melbourne Road.

[86] Mr. Beedawia was an experienced commercial driver. He had special training and held a special license permitting him to operate a transport truck. He understood the enhanced dangers that a transport truck presented to the public given its size and weight relative to the average motor vehicle used for personal use travel on public roadways.

[87] He had a clear, unobstructed view of westbound traffic on Glendon Drive as he approached the intersection.

[88] At the time he was driving southbound on Melbourne Road, Mr. Beedawia had been on duty for almost 14 hours and was admittedly tired. He was upset with his employer for requiring that he return to Strathroy from Toledo and transport a second load of auto parts to Windsor. He was considering quitting his employment.

[89] It was dark and Mr. Beedawia had encountered fog north of the intersection as he was travelling southbound. However, the undisputed evidence is that there was no fog at the intersection or within the area bounded 100 feet north of the intersection on Melbourne Road at the time of the collision.

[90] Mr. Beedawia had been travelling southbound on Melbourne Road for approximately 10-15 minutes before reaching the intersection.

[91] Notwithstanding the darkness and fog and his knowledge of the presence of two controlled intersections along his route, while travelling southbound on Melbourne Road Mr. Beedawia maintained his speed at the posted limit of 90 km/h.

[92] I note that Mr. Beedawia, himself, admitted his decision to maintain his speed at the posted limit of 90 km/h notwithstanding the darkness, the fog, his fatigue and his state of upset was dangerous.

[93] Given the circumstances of fog and darkness, the size and weight of the transport truck and Mr. Beedawia’s awareness of two controlled intersections present along the route he was travelling, I find that, objectively viewed, Mr. Beedawia was driving at a speed on Melbourne Road that was dangerous to the public.

(ii) The Fault Requirement

[94] Having found that Mr. Beedawia was driving in a manner dangerous to the public, I must now consider whether his driving constituted a marked departure from the standard of care expected of a reasonably prudent driver in his circumstances.

[95] I remind myself that mere carelessness or a momentary lapse in judgment does not constitute a marked departure.

[96] It is material that at the time of the collision Mr. Beedawia was a licensed commercial driver operating a transport truck.

[97] Tramner J. in the case of R. v. Tabanao [^9] summarized the case law describing the enhanced duties of a professional tractor-trailer unit driver in the context of the offence of dangerous driving. From my review of those cases I adopt and accept the following comments as applicable to the enhanced duties of Mr. Beedawia as a commercial driver operating his transport truck on the evening of November 18, 2019:

1. It is essential that tractor-trailers keep a reasonable distance from vehicles in front so that these heavy vehicles can pull up and stop with safety. [^10]
2. Tractor-trailers have the potential to do great harm. Drivers operating such large, heavy rigs with the capacity to create so much havoc, must be especially vigilant. That is because such tractor-trailers cannot stop safely if they do not observe a reasonable distance. [^11]
3. A driving offence committed by a transport truck commercial driver does not involve the same circumstances as a driving offence committed by an inadvertent driver. Truck drivers are required to be specially trained and licensed because of the enormous consequences that can flow from dangerous driving conduct. [^12]
4. A higher standard of driving is expected for an operator of a commercial vehicle. Professional drivers are required to exercise more care and vigilance, especially when a larger and heavier vehicle is involved.
5. Tractor trailers by their sheer size and weight, potentially makes them lethal weapons when driven dangerously.
6. Truck drivers are required to be specially trained and licensed because of the enormous consequences that can flow from dangerous driving conduct and therefore extra care is expected of them. [^13]

[98] At all times, Mr. Beedawia owed enhanced duties to the public as the commercial operator of a transport truck.

[99] Was Mr. Beedawia’s manner of driving a marked departure from the manner of driving of a reasonably prudent commercial driver? For reasons unknown, Mr. Beedawia did not brake at any point prior to the collision, and in particular, prior to entering the intersection. Even assuming that the traffic sign warning of the approaching stop sign was not visible to Mr. Beedawia and further that he could not detect by sight, sound and/or vibration the rumble strips, no explanation was provided by Mr. Beedawia for failing to apply his brakes at some point prior to the collision when his visibility was not reduced by the presence of fog.

[100] The evidence is undisputed that the sky was clear and there was no fog present in the intersection at the time of the collision. The evidence of Mr. Bundur together with the evidence of Mr. Tannahill and Mr. Deleary was that visibility at the intersection was good. When stopped at the southeast stop sign, Mr. Tannahill first observed the headlights of Mr. Beedawia’s transport truck approaching the intersection from a distance of approximately 100 metres. Mr. Deleary had no difficulty observing the transport truck as it approached and passed his vehicle north of the intersection.

[101] Therefore, the northwest stop sign facing Mr. Beedawia as he travelled southbound on Melbourne Road would have been visible to him 100 feet from the intersection. At the very latest, the stop sign was visible to Mr. Beedawia as he came upon and passed by the sign as he entered the intersection.

[102] Furthermore, I find the headlights of Mr. Deleary’s vehicle as he travelled past Mr. Beedawia’s truck, the headlights of Mr. Tannahill’s vehicle stopped on Melbourne Road at the southeast stop sign facing Mr. Beedawia, together with the headlights of the Bundur vehicle quickly approaching from his left, were all visual cues signaling to Mr. Beedawia that he was entering an intersection controlled by a stop sign and that these cues were visible to him at or near the intersection. These cues should have caused him to immediately engage his brakes and take other action to avoid the collision.

[103] The conclusion I draw from this evidence is that the reason Mr. Beedawia did not observe the headlights of oncoming or approaching vehicles, or the stop sign itself was because he was travelling too fast, was distracted, tired and not paying attention to his driving notwithstanding the danger he knew such manner of driving presented to the public.

[104] Mr. Beedawia was familiar with the intersection. He had travelled the route from Windsor to Strathroy many times before. Notwithstanding his evidence that his visibility was obscured by fog leaving him unable to detect the warning sign, the rumble strips and the stop sign itself, Mr. Beedawia chose to maintain his speed at the posted limit knowing that by failing to reduce his speed he would be unable to stop his vehicle, because of its weight and size, in the event a stop sign suddenly appeared.

[105] Notwithstanding his familiarity with Melbourne Road and his commercial driving experience, Mr. Beedawia claims he was unaware of stop signs and warning signage and rumbles strips because these signs were obscured by fog and in the case of the rumble strips, he was insulated from feeling their vibration in the cab of his truck. Yet, by his own admission, Mr. Beedawia was familiar with their presence having passed over similar rumble strips and having viewed both the signage and the rumble strips on an almost daily basis during daylight hours while travelling northbound on Melbourne Road.

[106] This case is not analogous to the case of R. v. Roy. In Roy the accused stopped at the stop sign, was unable to observe the oncoming vehicle and believing the intersection was clear, proceeded into the intersection where his vehicle was struck by an oncoming vehicle. The court found Mr. Roy’s decision was a single momentary lapse in judgment when he decided to proceed into the intersection notwithstanding the fog. That is not this case.

[107] Mr. Beedawia made no efforts to decrease his speed to enable him to stop at the intersection which he knew was located along his route. He simply ignored all cues and ignored his reduced visibility given the weather conditions to which he testified. Mr. Beedawia was driving too fast on Melbourne Road during the 10-15 minutes prior to entering the intersection. His decision was not a momentary lapse of judgment or mere carelessness. Mr. Beedawia, unlike Mr. Roy, did not adjust his manner of driving to account for the fog. He was cavalier and reckless, not momentarily absent-minded.

[108] Mr. Beedawia was aware of, understood and appreciated the potential risk of death or serious injury in the event he failed to stop his transport truck at an intersection controlled by a stop sign on Melbourne Road. However, he continued to drive at the posted speed limit rather than reduce his speed in circumstances where it was foggy and dark, and he was tired and upset and, therefore, distracted.

[109] Although not subject to the heightened standard of care of Mr. Beedawia as a commercial driver, evidence of the standard of care expected of a reasonable person in the circumstances of this case can be found in the conduct of Mr. Tannahill and Mr. Deleary. Both drivers stopped at the southeast stop sign to allow the traffic on Glendon Drive to pass by before proceeding through the intersection.

[110] In these circumstances, Mr. Beedawia:

1. Decided to maintain his speed at the posted limit of 90 km/h despite darkness and the presence of fog obscuring his view of the road signage; and
2. Took no steps to be vigilant in his lookout for cues alerting him to the two controlled intersections along Melbourne Road of which he had full knowledge and familiarity and knowing that he must stop his transport truck before proceeding through these intersections.

[111] I have taken into account (i) the adverse weather conditions; (ii) Mr. Beedawia’s distracted state of mind; and (iii) his knowledge of the upcoming intersection and conclude that Mr. Beedawia’s failure to reduce his speed while travelling on Melbourne Road for approximately 10-15 minutes before reaching the intersection, constitutes a marked departure from the standard expected of a reasonably prudent commercial operator of a transport truck.

[112] For these reasons, I find that the Crown has proven beyond a reasonable doubt the fault requirement of the offence of dangerous driving.

DISPOSITION

[113] I find Evan Beedawia guilty of both counts on the indictment. I have endorsed the indictment accordingly and have set a date for sentencing.

Justice A. K. Mitchell Released: November 10, 2023

[^1]: These reasons supplement and supercede the reasons delivered orally on November 2, 2023. [^2]: 2008 SCC 5, [2008] 1 S.C.R. 49 (S.C.C.) (“Beatty”). [^3]: Ibid., at para. 29. [^4]: Ibid., at para. 43. [^5]: 2012 SCC 26. [^6]: The definition of “conveyance” in the Code includes a motor vehicle. [^7]:, [1991] 1 S.C.R. 742. (“W.(D.)”) [^8]: R. v. McClenaghan, 2010 ABCA 222, at paras. 27 and 29, leave to appeal to S.C.C. refused, (2011), 261 C.C.C. iv (note). [^9]: 2020 ONSC 3501 at para. 458. [^10]: R. v. Parkin, 2004 CarswellOnt 5802 (Ont. S.C.J.) at para. 22. [^11]: Ibid, at para. 27. [^12]: R. v. Du Jardin, 2009 CarswellOnt 780 (Ont. S.C.J.) at para. 26. [^13]: See R. v. Ernst, [2006] A.J. No. 949 (QB); R. v. Parmar, (OCJ), at paras. 76-77 and 103-104.