COURT FILE No.: Kitchener 4460 999 10 13852 00

DATE: 2010·09·08

Citation: R. v. Benedict, 2012 ONCJ 169

ONTARIO COURT OF JUSTICE

BETWEEN:

R.

— AND —

Laura Benedict

Before Justice of the Peace M A Cuthbertson

Heard on 15 September 2011

Reasons for Judgment released on 12 January 2012

Charge: s. 142(1) HTA – Unsafe Turn

Cases cited:

Payne v. Lane, [1949] O.J. No. 65, [1949] OWN 284

R. v. Dillman, [2008] O.J. No. 1120

R. v. Rajkumar, [2005] O.J. No. 4042

R. v. White, [1992] 2 S.C.R. 417

Statutes cited:

Highway Traffic Act, s. 142(1)

H Karpouzos ...................................................................................................... for the prosecution

R Pires ................................................................................................................. for the defendant

JUSTICE OF THE PEACE CUTHBERTSON:

1: THE BACKGROUND

[1] At about 8:30 PM on 8 September 2010, two teenaged friends who lived in the area and attended a nearby college were longboarding (longboard = an elongated skateboard) on Green Valley Drive in Kitchener. The two longboarders were approaching 30 Green Valley Drive on a decline from the top of a hill. Mr Nicholas Michels was the lead longboarder as they proceeded down the hill, while his friend Mr Clayton Osborn was a few feet behind him.

[2] As the young men approached the area of a townhouse complex at 30 Green Valley Drive, a motor vehicle driven (Chevrolet Impala) by Ms Laura Benedict was approaching up the incline from the opposite direction. As Ms Benedict turned left into the driveway to the complex, her car and Mr Michels came into contact. Mr Michels ended up under Ms Benedict`s car and suffered severe injuries to his left leg and foot.

2: THE LAW

[3] Section 142(1) of the Highway Traffic Act states:

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

3: THE EVIDENCE OF THE PARTIES

[4] Mr Michels testified that he was wearing blue jeans and a light grey sweater while longboarding. He was descending on the right side of the two lane street with the lanes (one lane up the hill, one down the hill) having been divided by yellow lines. He described the area as residential which was fully lit by street lights and the overall visibility was good. The traffic was light.

[5] He stated the approaching car stopped prior to the entrance to 30 Green Valley Drive with its left turn signal illuminated. He was unsure as to how fast he was going down the hill. As he reached the driveway, he was struck by the vehicle as it made a left turn. He was uncertain as to how far he was from the car when he first observed that it had stopped, although he described it as a ‘decent distance’. He believed that he had come into contact with the car on the right side of its hood.

[6] After the accident, Mr Michels emailed a statement to the investigating officer of his recollections of the incident. This statement was reviewed by his mother, as he described himself having poor grammar and spelling skills. The statement did not include a reference to the vehicle stopping before it turned.

[7] Police Constable Darrin Wise of the Waterloo Regional Police Service investigated the incident but was not dispatched to the scene until 8:52 PM, subsequent to the collision.

[8] Officer Wise provided descriptions of the street, area surrounding the entrance to the townhouse complex and other context. He described the two lane highway as unmarked but well lit with artificial lighting in close proximity to the driveway and along the street. He also noted the clothing worn by Mr Michels was not reflective. On the driveway side of the street, he stated there was a sidewalk (1.6 meters wide) separated from the roadway by 3.1 meters of green space. Beyond the sidewalk was a hedge almost 2 metres in height with tall trees further back. He testified that a vehicle driving up the incline to the townhouse complex driveway (in the same fashion as Ms Benedict) would have reached an apex of the curve, at the driveway. At that point, a driver would have an unrestricted view of more than one hundred metres up to the crest of the hill. The crest of the hill was the point from where the two longboarders descended. He further described that the roadway from the crest of the hill to the driveway curved to the left with a 30 to 45 degree angle.

[9] The officer noted light damage to the Impala on the front passenger quarter panel. As well, the front corner bumper and the hood had some scratches and smudges. He surmised the impact occurred between the hood and the front corner bumper of the car.

[10] Cst Mitchell arrived at the scene prior to Cst Wise. According to Cst Wise, Ms Benedict had spoken with Constable Mitchell, advised him she was the driver and provided her documents (ownership, insurance, licence) to him. Cst Mitchell advised Cst Wise that she was the driver and passed the documents to him. Cst Wise advised that Ms Benedict had identified herself as the driver of the vehicle to him but had not been cautioned prior to making the statement. Cst Wise indicated that he had not decided to charge Ms Benedict when she identified herself as the driver to him, as he was still conducting an investigation.

[11] Constable Wise advised that Mr Michels was charged under a City of Kitchener bylaw for riding a skateboard on a highway.

[12] Ms Benedict elected not to give or call evidence.

4: ANALYSIS

4.1 Credibility Assessments

[13] Mr Michels provided consistent evidence in both examination-in-chief and in cross examination. He had some memory of the events but did not attempt to comment on that which he did not recall (ie: distances to the car when he first saw it and the speed of his longboard). It is clear that his memory was not perfect as he stated that the roadway had markings but Officer Wise testified there were none. As well, his evidence that the car had stopped before turning left was not consistent with his earlier written statement which had no mention of the vehicle stopping. However, I am not of the view that these inconsistencies are sufficiently significant to impugn his overall memory of the events. I also note that little turns on whether the car stopped or not. In its totality, his evidence was logical and made common sense. I was satisfied that he made an honest attempt to tell the truth. I detected no air of partiality, especially as I note he was honest about travelling on the roadway despite not being legally allowed to do so. I found Mr Michels to be credible and his evidence to be trustworthy. I accept his evidence as fact.

[14] Officer Wise was in a good position to provide evidence of that which he observed as an investigation officer. His memory of the scene was aided by his notes which were made contemporaneously to the events. His was an impartial narrative of his observations. His evidence was consistent throughout and certainly unshakeable in cross examination. It made common sense and was logical. I found Cst Wise to be credible and his evidence to be trustworthy. I accept his evidence as fact.

4.2 Can Ms Benedict’s statement that she was the driver be relied upon by the prosecutor?

[15] Mr Pires argued as Ms Benedict was not cautioned by Cst Wise prior to her telling him that she was the driver that her admission to him is a statutorily compelled statement which should be excluded pursuant to R. v. White, [1992] 2 S.C.R. 417. In my view there is no basis for this position. As noted, Ms Benedict elected not to give evidence. As required by White (see also R. v. Rajkumar, [2005] O.J. No. 4042), there is no evidence that she felt compelled to provide any information whatsoever. As well, she is at no risk of imminent deprivation of life, liberty or security as the maximum penalty she faces is $1,000. Finally, the evidence of Cst Wise indicated when she stated she was the driver to him, he was investigating what had happened and had not formed the conclusion that he would lay any charges.

4.3 Findings of Fact

[16] Having accepted Mr Michels evidence and having none to the contrary, this Court finds that Ms Benedict, the driver of the motor vehicle, did make a left turn into the driveway at 30 Green Valley Drive at about 8:30 PM on 8 September 2010. At the time of her turn, Mr Michels was longboarding down the street towards that driveway. The area was well lit. Mr Michels was there to be seen. Nonetheless, the turn was made in a manner such that Mr Michels and Ms Benedict’s car came into contact at the entrance of the driveway. As such, the left turn was not made in safety.

[17] However, s. 142(1) is an offence of strict liability (see Dillman, para 13) which provides Ms Benedict with the opportunity to present a defence of due diligence.

4.4 Does Ms Benedict have a defence of due diligence?

[18] Mr Pires suggested Mr Michels’ skateboarding while wearing non-reflective clothing were factors which form a causal link to the accident. It is certainly an offence under Kitchener’s bylaws to skateboard on the street. By Mr Michels’ own admission, he was doing just that at the time of the accident while wearing relatively dark clothing.

[19] Ms Karpouzos relied on the decision of Duncan, J. in R. v. Dillman, [2008] O.J. No. 1120 where at paragraph 15, the Court held:

It has been said that there is a heavy onus on a left turning vehicle to ensure that the turn can be made in safety; Payne v. Lane, [1949] O.J. No. 65, [1949] OWN 284 (Ont. H.C.)

Justice Duncan then held in paragraph 19:

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

[20] Mr Pires submitted Dillman is distinguishable on its facts, as the vehicle which approached the left turning truck in that matter, was a speeding motorcycle. I agree that the modes of transportation (car and longboard) were dissimilar to those in Dillman (truck and motorcycle), however in my view, the obligations of a driver turning left expressed in Dillman are fully applicable, to the matter at bar.

[21] I accept that ‘safety requires that the left turning driver make allowances for the predictable shortcomings and potential negligence of drivers who may soon appear.’ To this I would add that it is not only other drivers of which the left turning driver should ‘make allowances for the predictable shortcomings and potential negligence of’ but also of pedestrians including children, the elderly and the infirm and of course longboarders. In short, it is wise that a left turning driver assumes that someone else using the roadway, whether that usage is lawful or not, may not act in the best interests of her or his own safety and suddenly appear in close approach to the driver’s vehicle.

[22] Unlike Dillman, the visibility to the crest of the hill was, according to Cst Wise, good and without obstructions. Additionally, the area was well lit. Despite his dark clothing, Mr Michels was there to be seen. In my view, a person moving quickly down a hill on a longboard, in a well lit area should be noticeable by an approaching driver who is paying attention.

[23] This Court is not satisfied that Ms Benedict took all reasonable steps to observe the approach of the longboarders. I do not find that Mr Michels choice of clothing or his act of longboarding on the roadway provide a defence of due diligence to Ms Benedict.

[24] Mr Pires also submitted as Ms Benedict had turned on her left turn signal that Mr Michels should have stopped. Certainly from the perspective of his personal wellbeing, Mr Michels would have been much been much better off had he done so. But considerations of what was personally best for him do not fall within the scheme of s. 142(1) nor Dillman which clearly put a high responsibility on a driver to make a left turn in safety. Illuminating her left turn signal was a responsible act on the part of Ms Benedict. However, in and of itself, turning the signal on does not provide a defence of due diligence. No evidence was provided that she took all reasonable steps to avoid coming into contact with Mr Michels while executing her turn. Therefore, she does not have a defence of due diligence on this point.

[25] Mr Pires opined that Mr Michels hit Ms Benedict’s car rather than the opposite, thereby effectively suggesting the contact between her car and Mr Michels was his fault. In support of this contention, Mr Pires noted that the damage to the car as portrayed by Cst Wise was consistent with this scenario. No expert evidence was led on this point.

[26] Logic suggests that if Ms Benedict turned in front of Mr Michels so as to provide him with no opportunity to avoid an impact then at best, she misjudged the distance he was from her car and the speed at which he was travelling, or at worst she did not see him. In the former circumstance, she did not take all reasonable steps to avoid putting her car in his immediate path such that he could navigate around it or have enough time to stop prior to hitting it. In the latter circumstance, as noted above, he was there to be seen and she failed to do so. Overall, little turns on whether he hit her or she hit him. No evidence was led on this point which supported a defence of due diligence.

5: DECISION

[27] Therefore, this Court finds Ms Benedict guilty of an offence under s. 142(1) of the Highway Traffic Act. A conviction will be registered.

Released: January 12, 2012

Signed: “Justice of the Peace M.A. Cuthbertson”