COURT FILE No.: Hamilton 10-3540
Citation: R. v. Omerod, 2012 ONCJ 207
ONTARIO COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
— AND —
Heather April Omerod
Before Justice of the Peace Charles W. Anderson
Heard on January 31, 2012
Reasons for Judgment released on March 30, 2012
C. Fraser ......................................................................................................... for the prosecution
C. Biron ................................................................................ for the defendant Heather Omerod
The defendant, Heather Ormerod is charged with careless driving contrary to section 130 of the Highway Traffic Act. The court has heard evidence from a number of independent civilian witnesses as well as 3 police witnesses. There are a few things that are not in dispute. The date, August 11, 2010, the time 4-4:30 pm, the location – John Street and Forrest Ave, the jurisdiction - in the City of Hamilton and the identity of the defendant.
I am proposing an analysis of what is known in this case as referenced by the various witnesses and then attempting to resolve the 3 main issues that are not readily known.
The court has heard from three independent civilian witnesses who have confirmed there was a cyclist northbound on John Street coming from the area of Charlton St. to Forest Ave in the city of Hamilton. All of these witnesses confirm there is a significant downward grade as vehicles continue from Charlton Street toward Forest Ave in that northward direction. The cyclist was in the east side curb lane on the roadway as it made it’s way down the hill towards where the collision eventually occurred.
The second known fact as determined by these witnesses was the speed of which this cyclist was traveling. All indicated the speed to be fast – and referred to the normal speed of a car traveling on the roadway. Ian Burt said 40-50 km/hr or more. Shelly Korslick didn’t provide an estimate of speed but did indicate it was fast. Laura Ledonne indicated at least 60 km/hr down the hill.
Two of the three witnesses described the front wheel as either wobbly or shaking due to the speed down the hill.
The next known fact is the defendant was the driver of a van that was eastbound on Forrest Avenue. The defendant admits she had picked her husband up from St. Joseph’s Hospital after a minor surgical procedure and was eastbound on Forest Avenue and stopped for the stop sign at John Street. She advised the court she looked both ways on John St. and when no traffic was seen, she pulled her van across the four lanes of traffic. It was the defendant’s intention to go straight through onto Forrest Ave. Forrest Ave being a one way street that proceeds only east.
The closest independent witness, Mr. Ian Burt confirms he sees the defendant’s van pulling across John Street and feels with his walking pace the van would have crossed in front of where he was standing. There was no indication of speed from this van as it appeared as if it was crossing normally. However, something happens to force the van to come to a complete stop in the path of Mr. Burt.
The court has heard the explanation from the defendant who indicated there were vehicles parked legally on both sides of Forrest Ave east of John Street. A driver from one of the parked vehicles opened up the driver’s side door blocking passage of any vehicles proceeding eastbound on the only available lane on Forrest Ave. The defendant says she stopped for approximately 3-5 seconds before being struck by the cyclist. The fact the van had almost made it through the intersection is confirmed by Laura Ledonne from her vantage point two blocks away.
The next know fact is the cyclist struck the passenger side of the van in the sliding door and window area. All three independent civilian witnesses confirm this and exhibit # 5 – photo also proves this is the area the cyclist came into contact with the defendant’s van.
What the court does not know if the following:
What was the exact position of the defendant’s van in relation to the intersection of John St. and Forrest Avenue? No Point of Impact was ever established by the police reconstructionist at the scene. What is even more problematic was the fact no reason was ever given why this was not possible. This would have been very important information for the court to consider and that information was lacking in a serious motor vehicle collision such as this.
Issues for the court to consider:
- Based on the fact there is no clearly established POI or area of impact, what position was the defendant’s vehicle in when it was struck by the cyclist?
In considering this issue, the court can only rely on the civilian witnesses to try and establish what position the vehicle was in. Ian Burt advised in his testimony “the rear of the van was slightly in the intersection”. Laura Ledonne indicated “they had almost made it through the intersection when the cyclist had hit it”. The court did hear from the defendant that she was certain her van was all the way off the portions of John Street before she was struck. However, given the testimony of the two independent witnesses, the court can make the finding that there must have been a portion of the rear of her van that was still in the intersection at the time of the collision.
- What is the law for driver’s facing a stop sign wanting to cross a through street?
Section 136(1) & (2) of the Highway Traffic Act clearly states the responsibility.
“Every driver or street car operator approaching a stop sign at an intersection,
a) Shall stop his or her vehicle or street car at a marked stop line, or if none, then immediately before entering the nearest crosswalk, or if none, then immediately before entering the intersection; and
b) Shall yield right of way to traffic in the intersection or approaching the intersection on another highway so closely that to proceed would constitute an immediate hazard and, having so yielded the right of way, may proceed.
- Acquiring right of way – every driver or street car operator approaching on another highway, an intersection referred to in subsection (1), shall yield the right of way to every driver or operator who has complied with the requirement of subsection (1).
The evidence of the defendant acknowledged she stopped for the stop sign at John Street and waited for a couple of minutes because the traffic was heavy. She indicated she looked up the hill to Charlton Street and waited for the light to be red for traffic on John Street. She also stated she looked both ways and proceed straight across the intersection to continue east on Forrest Avenue. Ms. Ormerod saw a van door open blocking her path when she was approximately ½ way across the intersection. She pulled across and had to stop before the van because the only open available lane was blocked. She estimated she had stopped for approximately 3-5 seconds before being struck by the cyclist. At no time during her crossing of John Street did the defendant see anyone on a bicycle coming down John Street. There is no evidence to the contrary before this court regarding the defendant’s actions of approaching the stop sign at Forrest Avenue and John Street. As a result, the defendant has carried out her responsibilities according to section 136(1) of the HTA. She stopped, yielded right of way and proceeded carefully across the 4 lanes of traffic before being struck by a cyclist. There was no traffic so closely constituting an immediate hazard when she crossed John Street and almost finished crossing John Street when the collision occurred.
The court sees the responsibility then shifts to persons on the through highway that must yield to traffic that is already in the intersection after they have stopped for the stop sign and yielded to other traffic. This is evidenced by the vehicle making it across 4 lanes of traffic and being stopped for a few seconds before being struck.
- Did the defendant’s actions during the crossing of John Street constitute “undue care and attention or reasonable consideration for others” as outlined in careless driving?
The leading case in Careless driving is R. vs. Beauchamp that held the the standard of care and skill to be applied is not that of perfection. A driver is required to exercise a reasonable amount of skill and to do what an ordinary prudent person would do in the circumstances. In this case, the defendant outlined what she did when facing the stop sign at Forrest Avenue and John Street. She didn’t try to beat traffic across the four lanes of John Street, but rather something unforeseen came up in her path that required her to stop her course of travel to wait for another driver to close their door to allow passage through. She advised the court she did not see any cyclist when she was travelling across the four lanes of traffic. If the witnesses were accurate in their speed estimates, the cyclist would be traveling at approximately 44 feet per second at 50 km/hr. Given that speed estimate, the distinct possibility the cyclist was not in the field of vision of the defendant at that time. No one could foresee a cyclist traveling down a hill at a high rate of speed in a vehicle was not prepared to stop, wobbling, and the driver himself was not wearing a proper helmet. This unfortunate collision was a result of a number of circumstances that have rendered themselves to be that of a “perfect storm” that resulted in the collision with the defendant’s van – if the defendant wasn’t forced to stop to allow another person to close their door of their vehicle.
Given all the evidence presented before this court, the court is not satisfied beyond a reasonable doubt the defendant’s driving actions were careless and the matter is dismissed.
March 30, 2012