IN THE MATTER OF THE HIGHWAY TRAFFIC ACT, R.S.O. 1990, c. H.8
Between
Her Majesty The Queen prosecutor
and
Dhan Singh Gill defendant
Ontario Court of Justice Brampton, Ontario
Before: Quon J.P.
Reasons for Judgment
CHARGE
Section 142(1) H.T.A. – "right turn not in safety"
Trial held: February 22, 23, and 29, 2012
Judgment rendered: July 16, 2012
COUNSEL
- J. Quirt, assistant Crown attorney
- P. Dhaliwal, counsel for the defendant
CASES CONSIDERED OR REFERRED TO
Flynn v. Saunders, [1947] O.J. No. 127 (QL) (O.H.C.), per Barlow J.; affirmed [1947] O.J. No. 305 (QL) (O.C.A.), per Robertson C.J.O., Laidlaw and Roach JJ.A.
R. v. Belovari, [1996] O.J. No. 5009 (QL) (O.C.J.), per Tisi J.P.
R. v. Dillman, [2008] O.J. No. 1120 (QL), 68 M.V.R. (5th) 272 (O.C.J.), per Duncan J.
R. v. Drljevic, 2010 ONCJ 188 (O.C.J.), per Dechert J.P.
R. v. Hamid, [2008] O.J. No. 2059 (QL) (O.C.J.), per Quon J.P.
R. v. Jackson, 2010 ONCJ 487 (O.C.J.), per Quon J.P.
R. v. Mouland, 2011 ONCJ 390 (O.C.J.), per Dechert J.P.
R. v. Pereira, 2009 ONCJ 222 (O.C.J.), per Dechert J.P.
R. v. Trevisan, [2009] O.J. No. 606 (QL) (O.C.J.), per Dechert J.P.
STATUTES, REGULATIONS AND RULES CITED
Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 1(1), 140(1)(a), 140(4), 142(1), 144(7), 144(19), 144(22), 144(26), and 144(28)
REFERENCE MATERIAL CITED
Bryant, A.W., Lederman, S.N. and Fuerst, M.K. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham, Ontario: LexisNexis Canada Inc., 2009).
EXHIBITS ENTERED
Exhibit "1" - Letter of Mathew Alcock, Traffic Signals Technologist, dated December 20, 2010, to Cst. Ken Wright of the Major Collision Bureau of Peel Regional Police, providing the traffic light or signal timing for the intersection of Torbram Road at East Drive/Walker Drive, in the City of Brampton, for PM peak period for weekday for 1500 to 1900 hours (admitted on consent as evidence without proof) (1 page).
Exhibit "2" - Blank not-to-scale schematic sketch or map with bird's eye view of intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, drawn by Cst. Wang on December 1, 2010, for file 2010-213402, in which Gordon Rockett marked the direction of where he had observed the route the transport truck, which had been involved in the collision with the pedestrian, had been travelling northbound on Torbram Road with a red line and arrow; and marked the location of where he observed the pedestrian in the eastside crosswalk on Walker Drive when the collision occurred with a red asterisk; and indicated that the red asterisk that was drawn near the east line of the pedestrian crosswalk lines was a distance of 10 feet from the southeast curb with red lettering; and drew a red rectangle indicating where his vehicle had been stopped when he was facing westbound on Walker Drive in the designated left-turn lane, which he labeled as the "Rockett car" in red lettering (1 page).
Exhibit "3" - Blank not-to-scale schematic sketch or map with bird's eye view of intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, drawn by Cst. Wang on December 1, 2010, for file 2010-213402, in which Joven Ramirez marked with a red square where the vehicle he was a passenger in was stopped when facing westbound on Walker Drive in the designated left-turn lane and which he had labeled in red letters the name "Joven"; marked the location of where he observed the route the transport truck, which had been involved in running over the pedestrian, had been travelling northbound on Torbram Road had turned with a red line and arrow; and marked with a red asterisk where he observed the impact of the transport truck with the body lying on the road; and marked with black dot where he observed the pedestrian's body lying on Walker Drive; and indicated the direction the transport truck went eastbound on Walker Drive with a second red line and arrow (1 page).
Exhibit "4" - Blank not-to-scale schematic sketch or map with bird's eye view of intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, drawn by Cst. Wang on December 1, 2010, for file 2010-213402, in which Glen Pollock indicated with a red mark where the vehicle he was a passenger in was stopped when facing westbound on Walker Drive in the designated left-turn lane and which he had labeled in red letters the name "Glen" to identify the vehicle; and marked the location of where he observed the route the transport truck, which had been involved in running over the pedestrian, had been travelling northbound on Torbram Road and then travelled eastbound on Walker Drive with two red lines and arrows; and marked with a red "X" where he first observed the pedestrian in the eastside crosswalk on Walker Drive in which he had actually marked the red "X" outside the crosswalk lines; and then after being informed that the two parallel lines on the eastside of the intersection depicted the crosswalk he subsequently marked a black "X" with a black circle to indicate he had observed the pedestrian within the crosswalk, at the east edge of the crosswalk (1 page).
Exhibit "5" - Resume dated January 4, 2012, of Adrian Hamill, manager of fleet sales at Harper Truck Centres Inc., who was qualified as expert witness for the identification of makes and models of Freightliner trucks (1 page).
Exhibit "6" - Logs and driver details from Friday, November 26, 2010, to Wednesday, December 1, 2010, of truck W3036 driven by Dhan Gill (92405) from TTR Transport records dated December 12, 2010 at 15:25 (1 page).
Exhibit "7" - Chart of satellite positioning with latitude and longitude and description of location of truck W3036 driven by Dhan Gill at certain times from TTR Transport for the period from 12/01/10 00:00:00 EST to 12/01/10 23:59:59 EST (1 page).
Exhibits "8A" through "8E" - Colour photographs for file 2010-213402 taken on December 1, 2010, by Peel Regional Police Forensic Identification Service of the intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, showing various views of the intersection with two transport trucks and the body of the pedestrian covered with a yellow tarp (5 pages).
Exhibit "9" - Blank not-to-scale schematic sketch or map with bird's eye view of intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, drawn by Cst. Wang on December 1, 2010, in which Cst. Elson during his testimony marked where the two transport trucks he had observed stopped in the intersection (1 page).
Exhibits "9A" through "9D" - Colour photographs for file 2010-213402 – MVC Pedestrian Fatality - taken on December 1, 2010, by Peel Regional Police Forensic Identification Service of the intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton, showing the location of the deceased pedestrian lying on the road surface in the eastbound lane of Walker Drive, east of the pedestrian crosswalk (4 pages).
Exhibit "10" - Computer generated to-scale map or diagram for file 2010-213402 of the intersection of Torbram Road and East Drive/Walker Drive, in the City of Brampton drawn by Constable Teetzel #2295 dated December 1, 2010 (1 page).
Exhibits "11A" and "11B" - Colour photographs for file 2010-213402 labelled Autopsy 005.jpg and Autopsy 013.jpg by Peel Regional Police Forensic Identification Service of clothing worn by the deceased pedestrian on December 1, 2010 (2 pages).
Exhibit "12" - Forensic report dated March 10, 2011, from Dalia Bagby, Forensic Scientist, regarding paint samples from the tractor and trailer driven by the defendant and compared to white deposits found on the pedestrian's coat and debris collected (4 pages).
Exhibit "13" - Resume dated November 29, 2011, of Steve Reynolds, who was qualified as expert witness for the identification of makes and models of trucks (2 pages).
Exhibits "14A" and "14B" - Colour photographs of the driver's side and passenger side of the white-coloured tractor and white-coloured trailer driven by the defendant, showing the logo for "iwheels Logistics" on the side of the trailer and brown-coloured fenders or wheel wells for the front wheels of the tractor unit (2 pages).
Exhibit "15" - DVD of videotaped statement of defendant Dhan Gill taken by Cst. Douglas Tracy and recorded on December 7, 2010.
Exhibit "16" - Photograph of license plate "C3168F" attached to the white-coloured tractor driven by the defendant when he was stopped by Cst. Tracey on December 7, 2010 (1 page).
Exhibit "17" - Curriculum vitae (undated) of Constable Kenneth Wright, who was qualified as an expert witness for technical collision investigation and reconstruction (8 pages).
Exhibit "18" - CAD Terminal Report of 9-1-1 call received at 17:37.15 hours on December 1, 2010, indicating that a female had been run over by transport from the location of Torbram Road/Walker Drive (1 page).
Exhibit "19" - Chart prepared by Constable Kenneth Wright containing items #14 to #18 from information contained in Exhibit 7 (1 page).
Exhibits "20A" through "20E" - Google maps showing location of tractor and trailer driven by the defendant on December 1, 2010, at certain times, prepared by Constable Kenneth Wright using Google Map program (5 pages).
Exhibit "21" - Google map showing the GPS coordinates of 9-1-1 call plotted on Google Map by Constable Kenneth Wright (1 page).
Exhibit "22" - Google map showing the distance from the northeast corner of Torbram Road and Steeles Ave. East to the southeast corner of Torbram Road and Walker Drive prepared by Constable Kenneth Wright (1 page).
Exhibit "23" - Google map showing the distance from the intersection of Torbram Road and Walker Drive to east of Trojan Court prepared by Constable Kenneth Wright (1 page).
Exhibit "24" - Colour aerial photograph of the intersection of Torbram Road and Walker Drive (1 page).
Exhibit "25" - Colour aerial photograph showing the location and view of the video cameras that captured the surveillance videos (1 page).
Exhibit "26" - Time-Line Chart commencing at 5:27:00 and ending at 5:42:59 prepared by Constable Kenneth Wright with 1 second increments (33 pages).
Exhibit "27" - Chart prepared by Constable Kenneth Wright of times and where 8 northbound trucks that had been travelling on northbound Torbram Road between 5:32 to 5:40 p.m. had went at the intersection of Torbram and Walker (1 page).
Exhibit "28" - Consistencies Chart prepared by Constable Kenneth Wright showing how the surveillance videos fit together by actual time (4 pages).
Exhibit "29" - Colour image of computer screen containing icons and shortcuts of Peel Regional Police laptop HQ-ITSL-L53 containing the synchronized video compilation (1 page).
Exhibits "30" through "34" - DVDs of surveillance videos taken on December 1, 2010, from various locations including U-Haul Depot, Petro-Canada gas station, Brampton Transit bus, Magna International building, and 100 Summerlea Boulevard.
Exhibit "35" - Copy of image of laptop screen showing shortcuts for surveillance video compilation (1 page).
Exhibit "36" - Peel Regional Police laptop HQ-ITSL-L53 containing software program to run the 9-1-1 call and the five videotapes simultaneously and synchronized.
Exhibits "A" through "Q" - Still images purported to be from various surveillance videos of December 1, 2010, showing transport trucks, identified by expert witness Adrian Hamill as Freightliner Columbia trucks (17 pages).
Exhibit "R" - DVD of surveillance videotape taken on December 1, 2010, obtained from U-Haul Depot property located on northwest corner of intersection of Torbram Road and East Road/Walker Drive in the City of Brampton.
1. INTRODUCTION
[1] Sometimes bad things happen to people because they are simply at the wrong place at the wrong time. In this particular case, two people were at the wrong place at the wrong time when something tragic occurred. One of them was Erica Carmichael, a pedestrian, who while crossing a street had been run over by a transport truck making a right turn. Undoubtedly, the driver of that truck had also been at that wrong place and time. Sadly, Erica Carmichael died because of that unfortunate meeting between them. Moreover, while Erica Carmichael laid on the street after being run over, the driver of that transport truck, who may have been unaware of what had occurred, did not stop, but drove away.
[2] For them both, that wrong place had been at the intersection of Torbram Road and Walker Drive in the City of Brampton, which is geographically located at longitude 79.68340 degrees West and at latitude 43.71706 degrees North. And, that fateful time when this tragic event happened was on Wednesday, December 1, 2010, at 5:36:26 p.m.
[3] Regrettably, no one, who had been at the intersection when Erica Carmichael was run over, had actually observed who had been driving the transport truck or been able to get a description of the driver, or had gotten the province or number of the license plate or the company name of the transport truck that had been involved. However, one witness was able to say it had been a white-coloured transport truck with a sleeper berth pulling a white-coloured 53-foot trailer that had been involved, although it could have been one of hundreds of transport trucks and trailers that had passed through the intersection that day.
[4] In trying to identify the driver or to find the transport truck involved in Erica Carmichael's death, the police made a public plea for information. Then fortuitously, at 5:19 p.m. on December 7, 2010, a transport truck and trailer matching the description of the transport truck suspected in running over Erica Carmichael had been observed making the same right turn at the same intersection by a police officer, who happened to be at that intersection looking for transport trucks that would match the description of the suspect truck. The officer immediately pulled over that truck to investigate it and, after some inquiries and review of the driver's logs for the truck, soon suspected that the driver of this particular truck, who was subsequently identified as Dhan Singh Gill, had been the one who had driven the truck that ran over Erica Carmichael. After completing their investigation into this traffic fatality, the Peel Regional Police decided to charge Dhan Singh Gill ("the defendant") on February 11, 2011, with contravening s. 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, of making a "right turn not in safety".
[5] However, as there is no direct evidence the defendant had been observed as the driver of the transport truck involved, the Crown will instead rely on evidence that will circumstantially prove the defendant is the person that had been operating the transport truck that ran over Erica Carmichael while making that unsafe right turn. To make this circumstantial case, the police have collected evidence to show that the driver of the transport truck involved in the death of the pedestrian was indeed the defendant, which consists of witnesses' observations of the pedestrian being run over and their description of the transport truck involved; the statement made by the defendant to a police officer; the surveillance videos that captured a transport truck near the intersection and also making a right turn at the intersection at the time in question; the driver's logs for the defendant and for his transport truck; the GPS or satellite positions and coordinates for the location of the defendant's transport truck at certain times on December 1, 2010; the time-lines of events based on how they fit with the time the police first arrived at the scene, the time the 9-1-1 calls were made by witnesses, and the time-stamps recorded on the surveillance videotape from the Brampton Transit bus travelling northbound on Torbram Road at the time in question; the traffic signal timing for the intersection; the distinct features visible on the suspect tractor-trailer captured on the surveillance videos; and the identification by experts of the make or model of the suspect transport truck that had been captured on surveillance videos.
[6] On the other hand, the defence contends the Crown has failed to prove beyond a reasonable doubt that the defendant had been the one who was driving the transport truck that struck Erica Carmichael, considering that three civilian witnesses who testified at the trial and who were just feet away from the suspect truck when the pedestrian was run over, did not see who was driving or get a description of the driver; nor did they see the front or cab portion of the tractor-trailer strike the pedestrian; nor did any of them see or obtain any license plate number for the truck or trailer in question, or the name of any company on the truck or trailer; nor did they observe the 15-foot logo on the side of the trailer; nor did they observe the dark-coloured wheel wells or fenders on the front of the truck. Moreover, the defence emphatically notes that one witness described the trailer on the suspect tractor-trailer as having red or brown doors on the rear of the trailer, when in fact the trailer driven by the defendant has white rear doors instead of red or brown rear doors, and as such, creates reasonable doubt that the defendant had been involved in the pedestrian's death.
[7] Alternatively, if it is determined that the defendant had been the one operating the transport truck that ran over the pedestrian, then it is submitted by the defence that there should be an acquittal nonetheless, since there is evidence that the defendant had make a normal right turn at a normal speed, the pedestrian had been looking down when crossing the street, and had been wearing dark-coloured clothing that included wearing a hood over her head, and that the pedestrian had walked into the side of the defendant's tractor-trailer after the defendant had already begun making or been in the midst of the right turn.
[8] Now, as to how both the pedestrian and the driver of the transport truck came to be at that fateful place and time will be key in determining who had been the driver of that transport truck that ran over Erica Carmichael.
[9] Moreover, the trial of this regulatory charge had been held over three days: February 22, 23 and 29, 2012. In the trial, ten witnesses testified for the Crown while the defence did not call any witnesses. After closing arguments were made, I reserved judgment and adjourned the matter until July 16, 2012, to render my judgment. These, therefore, are my written reasons for judgment:
2. THE CHARGE
[10] Under a Part III information sworn on February 11, 2011, the defendant in this proceeding has been charged with committing the offence of "right turn not in safety", contrary to s. 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8:
Dhan Singh Gill
on or about the 1st day of December, 2010, at the City of Brampton in the Central West Region did commit the offence of being a driver of a motor vehicle, licence number 7134PF at approximately 5:37 p.m., upon a highway to wit: Torbram Road turning right at the intersection with Walker Drive, did unlawfully fail to make such movement in safety contrary to the Highway Traffic Act, section 142(1).
3. FACTUAL BACKGROUND
(a) ADMISSIONS
[11] The defence has conceded or has no issues with the following:
(i) the defendant's statement made on December 7, 2010, to Constable Tracey, a police officer with the Peel Regional Police, had been voluntarily given;
(ii) the traffic lights and pedestrian signals at the intersection in question were functioning properly at the time;
(iii) the contents of a letter dated December 20, 2010, from Matthew Alcock, traffic signal technologist for City of Brampton, is admissible for its truth without Alcock being required to testify (see Exhibit 1);
(iv) the surveillance videos are admissible without authentication or proof of authenticity;
(v) the two 9-1-1 calls made by Glen Pollock and Gordon Rockett, respectfully, were received by the Peel Regional Police at 5:37 p.m. on December 1, 2010;
(vi) Erica Carmichael, the deceased pedestrian, was picked up by a city bus at Highway 427 and Humber College at 5:09 p.m. and that this was the bus she had been travelling on;
(vii) the bus carrying Erica Carmichael, the deceased pedestrian, stopped at 5:33 p.m. at Torbram Road and Steeles Avenue in Brampton, at which point Erica Carmichael exited the bus;
(viii) Erica Carmichael, the deceased pedestrian, after getting off the bus then headed northwest through the parking lot of Magna International towards Torbram Road;
(ix) Erica Carmichael, the deceased pedestrian, at the time in question was wearing a Khaki three-quarter length green jacket;
(x) that there are no issues with the longitudinal and latitude lines being introduced at trial; and
(xi) that there are no issues regarding jurisdiction, date, and time.
(b) SUMMARY OF EVENTS
[12] A traffic fatality occurred in the City of Brampton as a result of a motor vehicle running over a pedestrian that had been crossing at an intersection controlled by automatic traffic lights. This happened on Wednesday, December 1, 2010, at 5:36:26 p.m., at the intersection of Torbram Road and Walker Drive. In this particular case, a transport truck pulling a trailer ran over Erica Carmichael, while the truck was making a right turn. The transport truck had been northbound on Torbram Road and made the right turn to go eastbound on Walker Drive. Witnesses at the intersection described the tractor-trailer as a white-coloured tractor with a sleeper berth and the trailer as being 53 feet long and white in colour.
[13] This pedestrian fatality occurred in the evening when the streetlights were on and the intersection was illuminated by artificial lighting. It was cold and the temperature at the time was about -1 degrees Celsius. At the time the pedestrian had been run over, the traffic light for northbound traffic on Torbram Road had been indicating a green light.
[14] Furthermore, Erica Carmichael, the pedestrian, had been walking northbound and was on the eastside of Torbram Road and crossing the street at Walker Drive. She had been wearing dark-coloured clothing and the hood of her jacket had been covering her head. It also appeared to one witness that she had been looking down as she walked. Moreover, she had stepped onto Walker Drive and had been one or two steps into the pedestrian crosswalk when the transport truck had commenced or had been in the midst of its right turn and about 10 feet from the curb she walked into or made contact with the centre portion of the passenger-side of the cab portion of the tractor-trailer. After the contact with the side of the transport truck, the pedestrian fell to the ground. The rear tires on the trailer then drove over the pedestrian while she laid on the ground. The tractor-trailer did not stop after the pedestrian had been run over, but continued on its journey eastbound on Walker Drive. Witnesses at the intersection immediately called 9-1-1. When police and paramedics arrived, Erica Carmichael was already dead.
[15] Unfortunately, no one at the intersection got the license plate of the transport truck, a description of the driver, or any logo or company name on the tractor or cab part of the transport truck or on the trailer. The Major Collision Bureau of the Peel Regional Police subsequently commenced an investigation into this traffic fatality and also sought assistance from the public to identify the transport truck and its driver that ran over the pedestrian. The police had originally treated this traffic fatality as a hit-and-run situation. Furthermore, the police in their investigation obtained witness statements and a description of the transport truck and trailer involved, canvassed for and viewed surveillance videos from buildings near the intersection, and sought the assistance from experts involved in the sale or purchase of transport trucks or the trucking industry to identify a suspect truck that made a right turn at the intersection, which had been captured on some surveillance videos.
[16] Then, on December 7, 2010, at 5:19 p.m., several days after the fatality occurred, a police officer who had been stationed at the intersection where the fatality occurred, specifically looking for the suspect transport truck, observed a transport truck pulling a trailer making the same right turn that matched the description of the truck that had run over the pedestrian. After this transport truck was stopped and investigated by the police, the driver was identified as Dhan Singh Gill. The driver then voluntarily went to the police station, voluntarily gave a statement to the police that had been videotaped, and consented to the search of the transport truck he had been driving. After reviewing the driver's log for the transport truck and Gill admitted going through the intersection and recalling seeing the police cars blocking the intersection on the night in question, the police believed that it had been Gill who had been driving the transport truck that ran over Erica Carmichael. When the Peel Regional Police completed their investigation, they charged Gill on February 11, 2011, for committing the offence of "right turn not in safety", contrary to s. 142(1) of the Highway Traffic Act.
(i) Key Time-Lines for December 1, 2010
[17] The defendant, Dan Singh Gill, who was 53 years old at the time, began his day early on December 1, 2010, and at about 5:02 a.m. had been at the lot located at 20 Trojan Court in Brampton, which is approximately 1264 meters northeast of the intersection of Torbram Road and Walker Drive, to pick up the transport truck and trailer that he exclusively drives, which is a 2004 white-coloured Freightliner Columbia transport truck with dark-coloured fenders and a sleeper berth. He also uses the same trailer, which is a white-coloured 53-foot trailer with the logo "iwheels Logistics" on the side of the trailer, near the rear. He then left the yard or lot where he parks the tractor-trailer every night and drove the tractor-trailer to Concord, Ontario to pick up the load of auto parts that he would have to transport to the Ford plant in Dearborn, Michigan. He makes this same trip five days a week, from Monday to Friday, of transporting auto parts from Concord to the Ford plant. After the auto parts were loaded onto the trailer, he drove from Concord to Trafalgar Road to get onto Highway 401. He also believes he had stopped at 7:25 a.m. to refuel his truck. He then drove to Windsor, which took him about 3 hours and 32 minutes. After crossing the Canada-U.S. border, he arrived at Dearborn, Michigan at 11:48 a.m. His trailer was then unloaded. At 12:42 p.m., he started his journey back to Brampton. He arrived back at the border and then spent 24 minutes at the Duty Free store. Then at 1:31 p.m., he left the border area and continued on with his journey back to Brampton. His journey back to the Brampton lot would take about 4 hours to complete.
[18] At 5:09 p.m., 28 year-old Erica Carmichael got onto a city bus at Highway 427 and Humber College in Toronto. She had just finished her workday at The Bay department store at Woodbine Centre and would be returning to her home in Brampton on the bus.
[19] Meanwhile, at 5:14:34 p.m., the defendant, was still driving his tractor-trailer was on Steeles Avenue West, west of Mavis Road, heading back to the location where he parks the tractor-trailer for the night. He then would be finished his workday and would then head home.
[20] Some minutes later, at 5:29:45 p.m., the defendant's transport truck had reached Steeles Avenue East, east of Dixie Road, in the City of Brampton.
[21] At 5:30 p.m., Gordon Rockett had finished work at a logistics business located on Summerlea Boulevard, which is east of the intersection of Torbram and Walker. He finishes work at the same time every day. He also would be heading home and taking his usual route westbound along Walker Drive from his company's location.
[22] At 5:33 p.m., a Brampton Transit bus stopped at the bus stop located on the northside of Steeles Avenue, just east of Torbram Road, where Erica Carmichael got off the bus. She then walked through the Magna International parking lot on the northeast corner of Steeles Avenue and Torbram Road to get to Torbram Road.
[23] At 5:35:40 p.m., the traffic light at the intersection of Torbram and Walker for vehicles travelling northbound on Torbram Road changes to a green indication. The phase for the northbound traffic lights as indicated in the Traffic Signal Timing chart in Exhibit 1 is for 56 seconds before the phase for eastbound and westbound traffic starts. Of those 56 seconds for northbound traffic on Torbram Road, 4 seconds of that would be used for an amber light and 2 seconds for an all-way red light. Hence, the green light for northbound traffic would last for 50 seconds.
[24] At 536:26 p.m., Erica Carmichael, who had been walking northbound on the eastside sidewalk of Torbram Road, stepped onto Walker Drive to cross Walker Drive. At virtually the same time, a white-coloured transport truck with a sleeper berth and a white-coloured 53-foot trailer while travelling northbound on Torbram Road made a right-turn onto Walker Drive. The traffic light for northbound traffic was still green.
[25] Also at 5:36:26 p.m., Joven Ramirez and Glen Pollock were passengers in a van stopped for a red light at Torbram Road in the designated left-turn lane for westbound Walker Drive. The van they were riding in was the first vehicle in line waiting to make a left turn, to go southbound on Torbram Road. They had just finished work and were being driven by their co-worker, Ronald, to the bus stop located at the intersection of Steeles Avenue and Torbram Road, so they could catch a bus. While stopped and waiting for the light to change, both Ramirez and Pollock see a pedestrian at the southeast corner of the intersection at the same time they see a transport truck with a trailer going northbound on Torbram Road make a right turn onto Walker Driver, but only see the pedestrian's body being run over by the wheels of the trailer. However, Ramirez had seen the pedestrian walk one or two steps onto the road and into the crosswalk before he observed the tractor-trailer make the right turn onto Walker Drive.
[26] In addition, at 5:36:26 p.m., Gordon Rockett was also at the intersection of Torbram and Walker in his vehicle stopped for a red light at Torbram Road in the designated left-turn lane for westbound Walker Drive. His vehicle, a grey Ford Fusion, had been the second in line waiting to make a left turn to go southbound. As he waited for his light to change, he happened to be looking to his left and noticed a pedestrian and a transport truck come into contact when the pedestrian was about 10 feet into the pedestrian crosswalk on the eastside of Torbram Road. He then saw her fall onto the ground immediately and then observed both sets of the rear wheels on the 53-foot trailer run over the pedestrian.
[27] At 5:37:15 p.m., shortly after seeing the pedestrian being run over, Gordon Rockett and Glen Pollock called 9-1-1, respectively, and spoke to the 9-1-1 operator. Rockett was still on line with the 9-1-1 operator when the police and ambulance arrived at the intersection. In addition, Gordon Rockett gave a statement to the police and remained at the intersection for several hours. Rockett's vehicle also remained in the same spot in the left-turn lane during that time. Furthermore, after seeing the pedestrian being run over, Rockett said he called 9-1-1 no more than 30 seconds afterwards while Pollock said he called 9-1-1 within one minute after it had happened.
[28] At 5:39:12 p.m., a few minutes after the pedestrian had been run over, the defendant's tractor-trailer was on Trojan Court, approximately 1264 meters from the intersection of Torbram Road and Walker Drive.
[29] At 5:41:43 p.m., Constable Elson, after receiving a radio call about a traffic accident occurring, arrived at the intersection of Torbram Road and Walker Drive. An ambulance arrives shortly after. Elson notices that the person lying on the road surface in the eastbound lane of Walker Drive is outside of the pedestrian crosswalk and is later measured to be lying 4 meters east of the crosswalk and 5 meters north of the south curb of Walker Drive. He also notices that the person lying on the road is unresponsive.
[30] Then sometime about 6:00 p.m., the defendant is finished his workday and heads home and is blocked by police vehicles at Summerlea Boulevard and Walker Drive and is prevented from using the intersection at Torbram Road and Walker Drive to get home and decides to go to Airport Road and take a different route home.
[31] Police officers from the Major Collision Bureau of the Peel Regional Police are then called out later that evening to attend and investigate the traffic fatality that occurred at the intersection of Torbram and Walker.
(ii) How Erica Carmichael came to be at the intersection of Torbram and Walker on December 1, 2010?
[32] On December 1, 2010, which one witness said had been the first cold day of the season, Erica Carmichael finished work and caught a municipal bus at 5:09 p.m. to go home. She worked in the marketing department for The Bay at the Woodbine Centre in Toronto. She had gotten onto the bus at Highway 427 and Humber College in the City of Toronto.
[33] The bus then proceeded to the City of Brampton and dropped her off at 5:33 p.m. at the northeast corner of Torbram Road and Steeles Avenue. After getting off the bus, she walked in a northwest direction towards Torbram Road through the parking lot of Magna International, which is located on the northeast corner of Torbram Road and Steeles Avenue. She was also heading toward the intersection of Torbram Road and Walker Drive, which is about 400 meters north of the intersection of Torbram and Steeles.
[34] At 5:36:26 p.m., Erica Carmichael had just walked one or two steps onto Walker Drive, just east of Torbram Road, in the City of Brampton, to cross the street when the white-coloured transport truck pulling a white coloured 53-foot trailer began its right turn onto Walker Drive from northbound Torbram Road. She had been walking in a northbound direction in the crosswalk. In addition, the point of contact between her and the truck occurred at a point no more than 10 feet from the south curb.
[35] After the contact with the passenger-side of the cab portion of the truck had occurred, Erica Carmichael fell onto the road and the rear wheels of the trailer then ran over her body. The transport truck did not stop but continued going eastbound on Walker Drive. Witnesses at the intersection at that time made 9-1-1 calls within 30 seconds to a minute of Erica Carmichael being run over. The police arrived at 5:41:43 p.m. and the first police officer on the scene did not detect any life from Erica Carmichael. An ambulance arrived shortly afterwards, but Erica Carmichael did not survive her injuries. A yellow-coloured police blanket was then placed over Erica Carmichael's body. Police officers from the Major Collision Bureau of the Peel Regional Police were then called in to investigate this traffic fatality.
(iii) Where had the defendant been at different times on December 1, 2010?
[36] The defendant is employed as a transport truck driver for Rasham Cheema, the owner of the transport truck that the defendant drives. In addition, he had been driving for the owner of the transport truck, who is contracted by an affiliate or subsidiary of TTR Transport to haul auto parts to the Ford plant in Dearborn, Michigan. The defendant has being doing this trip of hauling auto parts to the Ford plant, five days of the week from Monday to Friday, for the last three months. He has also being driving the same transport truck and using the same trailer since he started hauling the auto parts to Michigan. In addition, the defendant told Constable Tracey that he is the exclusive driver of the transport truck he had been driving at the time Constable Tracey stopped him on December 7, 2010.
[37] On December 1, 2010, the defendant arrived at the lot at 20 Trojan Court in Brampton, where the transport truck and trailer is parked for the night and began his workday at about 5:02 a.m. He then checked out his truck and trailer and left the yard and then drove it to Concord, Ontario to pick up the load of auto parts that he would have to transport to the Ford plant in Michigan. He then drove to Trafalgar Road to connect onto Highway 401 to go to Windsor, Ontario.
[38] At about 10:57 a.m., he arrived at the Canada and United States Border. Once allowed to proceed into the United States he arrived at the plant at 11:48 a.m. After the load was dropped off, he left the Ford plant at 12:42 p.m. to start his drive back to Brampton. He then arrived back at the border at about 1:07 p.m. where he spent about 24 minutes at the Duty Free store. He finally left the border area at 1:31 p.m. and continued on with his trip back to Brampton using Highway 401.
[39] Furthermore, the defendant told Constable Tracey that he usually takes the Trafalgar Road ramp to get off Highway 401, and then drives north to Steeles Avenue and then east to Torbram Road. At 5:14:34 p.m., the defendant's truck was at Steeles Avenue West, west of Mavis Drive. Then, at 5:29:45 p.m. the defendant's truck was still on Steeles Avenue, but now it was just east of Dixie Road, in the City of Brampton.
[40] At 5:39:12 p.m., the defendant arrived back at the yard or lot at 20 Trojan Court in Brampton where he parked his transport truck and trailer for the night. At about 6:00 p.m. he left the yard to go home. He also told Constable Tracey that he had gotten close to the intersection at Torbram and Walker but then noticed the road ahead had been blocked by police cars with flashing lights at Summerlea Boulevard and Walker Drive and so he had to go to Airport Road in order to take a different way home. In addition, he told Constable Tracey that he had made a right turn from northbound Torbram to turn right onto Walker Drive on December 1, 2010, but did not notice anything at the time.
[41] Furthermore, when the defendant arrived back at the lot at 20 Trojan Court, he would have already been on duty or driving his transport truck for about 12 ½ hours, since he started his work day.
(iv) The intersection where Erica Carmichael was run over and its surrounding area
[42] Erica Carmichael died at the intersection of Torbram Road and Walker Drive, which is situated in the City of Brampton. The intersection is controlled by automatic traffic and pedestrian signal lights. There is also a pedestrian crosswalk painted on the road on the east side of the intersection and the lines for the crosswalk were visible. In addition, there are crosswalks on the other three sides of the intersection.
[43] Moreover, this intersection is located in an industrial area, where there are many warehouses and where hundreds of trucks may go through the intersection on a daily basis.
[44] Furthermore, Torbram Road is a road that runs in a north-south direction while Walker Drive, which is located on the eastside of Torbram Road, runs in an east-west direction east of the intersection. The east-west road on the westside of the intersection is named East Drive and runs in an east-west direction on the west side of the intersection.
[45] For Walker Drive, there are three westbound lanes on the north portion of the road comprising of two through lanes and one dedicated left-turn lane while there is only one eastbound lane on the south portion of the road, which is wider than the width of a normal lane. Constable Wright estimated that a lane is generally about 3.5 meters wide and that the width of the eastbound lane is more than one lane but less than two lanes, and would therefore, be between 3.5 meters to 7 meters wide. Furthermore, the southeast curb of Walker Drive shown on the to-scale map of the intersection marked as Exhibit 10 shows it to be curved and that the width of the eastbound lane is wider at the crosswalk than it is further east on Walker Drive. Using the scale on the map, it appears that the width of the eastbound lane at the crosswalk is approximately 12 meters while the width further east is 5 meters.
[46] In addition, East Drive has two westbound lanes and for the eastbound lanes, there is a dedicated left-turn lane and one through lane.
[47] And, for Torbram Road on the southside of the intersection, there are four northbound through lanes in which two are through lanes and one is a dedicated left-turn lane and one is a dedicated right-turn lane. In addition, there are two southbound lanes on the southside of the intersection. For the northside of the intersection for Torbram Road there are two northbound lanes and three southbound lanes in which two are through lanes and one is a dedicated left-turn lane.
[48] There is also a bus shelter on the eastside of Torbram Road located south of Walker Drive, which sits adjacent to the west boundary line of the sidewalk that is on the eastside of Torbram Road. From the to-scale map of the intersection marked as Exhibit 10, the bus shelter is located about 10 meters south of the stop line for northbound traffic on Torbram Road. There is also an advertisement that is only on one side of the bus shelter, which in the photograph marked Exhibit 8A shows it to be on the north face of the bus shelter.
[49] In addition, there are three light poles located at the southeast corner of the intersection. One is located west of the sidewalk and just north of the bus shelter and the other two poles are located east of the sidewalk. These two are the pedestrian traffic light pole located just south of the south curb of Walker Drive and the traffic light pole located further east of the pedestrian traffic light pole just south of the south curb.
[50] The sidewalk on the eastside of Torbram Road south of the intersection ends at the southeast corner and does not continue eastbound on the southside of Walker Drive.
[51] Moreover, on the northwest corner of the intersection is located the U-HAUL Depot while the Petro-Canada gas station is located on the northeast corner. As for the southeast corner, the area not developed and is a grassy area.
[52] In addition, there is also visible on the photograph marked Exhibit 9B a speed limit sign indicating a maximum speed of 50 k.p.h. on the most easterly traffic light pole that is located several feet east of the eastside sidewalk of Torbram Road and south of the south curb of Walker Drive.
[53] And, in respect to roads east of the intersection, Summerlea Boulevard is the first north-south road located east of Torbram Road and runs only north of Walker Drive. At the intersection of Summerlea Boulevard and Walker Drive there is a four-way stop controlled by stop signs. On the opposite side of Summerlea Boulevard, there is a road on the southside of Walker Drive that is named Van Der Graaf Court.
[54] Furthermore, where the defendant parks his tractor-trailer for the night at 20 Trojan Court that road is located north of Walker Drive and runs only east of Summerlea Boulevard. The distance from the intersection of Torbram Road and Walker Drive to Trojan Court is approximately 1264 meters.
(v) Location of Erica Carmichael's body on Walker Drive
[55] After Erica Carmichael was run over, her body was found lying on Walker Drive on the eastside of the intersection in the eastbound lane outside the lines of the pedestrian crosswalk, east of the north-south pedestrian crosswalk. The investigating officers also measured the distance of where Erica Carmichael's body had been lying in relation to the south curb of Walker Drive and the pedestrian crosswalk and determined that she had been lying five meters north of the south curb of eastbound Walker Drive and four meters east of the pedestrian crosswalk.
[56] It should also be noted that Constable Wright said that the width of a normal lane is about 3.5 meters and that because the eastbound lane is wider than one lane but narrower than the width of two lanes he estimates the eastbound lane to be 3.5 meters to 7 meters in width. However, the to-scale map shows the width of the eastbound lane at the crosswalk area to be approximately 12 meters, since the southeast curb is curved and the eastbound lane narrows to about 5 meters further east of the intersection. Therefore, the southeast corner appears to accommodate right turns for tractor-trailers.
(vi) Finding the driver of the transport truck that ran over Erica Carmichael
[57] The white-coloured transport truck that came into contact with Erica Carmichael did not stop and continued travelling eastbound on Walker Drive. Although several witnesses saw Erica Carmichael being run over by the rear wheels of the trailer being pulled by the transport truck, no one saw who was driving the transport truck or get a description of the driver, nor did anyone get the license plate of the transport truck or any company names that were on the tractor or on the trailer. At first, the police suspected a hit-and-run traffic fatality.
[58] In their investigation of the fatality, police officers took statements from witnesses and attended at various buildings or locations around the intersection of Torbram Road and Walker Drive, canvassing for surveillance videotapes. The transport truck that ran over Erica Carmichael was described by witnesses, who were at the intersection at the time in question, as being white in colour, that the tractor portion had a sleeper berth and that the trailer was 53 feet long and also white in colour. One witness also described the rear doors of the trailer as being red or brown in colour.
[59] However, but for some luck and the tireless work of the Peel Regional Police, the driver of that transport truck may never have been found or identified.
[60] Before charging the defendant as the driver, the Peel Regional Police originally treated the traffic fatality as a hit-and-run incident and canvassed the area for surveillance videotapes, and made a broadcast for any witnesses that may have seen Erica Carmichael being run over on December 1, 2010, or for any information that could help them find the transport truck and its driver. Of the several officers involved in the investigation, Constable Tracey had been assigned to canvas the area around the intersection for surveillance tapes. After he reviewed surveillance tapes from the area, he identified a suspect transport truck and trailer that he believed was the vehicle involved in running over Erica Carmichael based on the time that the event had occurred. He then sought assistance from Adrian Hamill, who was involved in the trucking business, to identify the type or make of the truck on the video. Hamill informed Constable Tracey that the truck on the video that was suspected of running over the pedestrian was a Freightliner Columbia with a sleeper berth and dark wheel wells or fenders. Constable Tracey also knew from witnesses at the intersection when the pedestrian was run over that the truck involved was white in colour, pulling a 53-foot trailer, and had a sleeper berth. In addition, Constable Tracey believed that because of the turn made by the truck in the video that it had to have been made by a driver that knew the area well.
[61] On December 7, 2010, Constable Tracey set up in the Petro-Canada gas station, which is located in the northeast corner of the intersection, hoping to locate the suspect truck, relying on his reasoning about the driver being familiar with the area and the intersection. At 5:19 p.m. on that day, Constable Tracey observed a transport truck with a trailer travelling northbound on Torbram Road making a right turn onto Walker Drive. The truck matched the description of the suspect truck, in that it was white in colour, pulling a trailer that was white in colour, had a sleeper berth, and had dark-coloured fenders on the cab. Constable Tracey stopped this truck and learned that the driver of the truck he had stopped was Dhan Singh Gill (the "defendant"). Furthermore, Constable Tracey determined the transport truck's make was a Freightliner Columbia. The defendant then agreed to accompany Constable Tracey to the Major Collision Bureau located at 180 Derry Road and consented to the police searching the truck he was driving. Moreover, the defendant cooperated with Constable Tracey and voluntarily answered questions from Constable Tracey that were also videotaped (see Exhibit 15). Constable Tracey also said the electronic driver's logs for the defendant's truck indicated that the defendant drove the truck on December 1, 2010, and that the truck was in Brampton on that day.
[62] Furthermore, during the questioning by Constable Tracey on December 7, 2010, the defendant stated that he was the sole driver of the Freightliner Columbia truck, that he drove that truck on December 1, 2010, that he had gone through the intersection at Torbram Road and Walker Driver on December 1, 2010, and that he remembered after he dropped off his truck for the night at the Trojan Court lot that he had driven back toward the intersection and that it had been blocked by police cars with flashing lights. He also said that he does the same trip, five days a week from Monday to Friday, of hauling a load of auto parts to the Ford plant in Dearborn, Michigan and then returning to the lot on Trojan Court through the intersection at Torbram Road and Walker Drive to park his tractor-trailer for the night.
(vii) The regulatory proceeding
[63] After police officers from the Major Collision Bureau of the Peel Regional Police officers interviewed witnesses, including getting the defendant's statement; reviewed surveillance videos from the intersection, surrounding area and from a Brampton Transit bus; sought experts to identify the make or model of the suspect transport truck seen on the surveillance videos; obtained information about the 9-1-1 calls; photographed the intersection and the defendant's tractor-trailer; collected and submitted samples from the defendant's tractor-trailer to the Centre for Forensic Sciences; mapped the intersection and produced a to-scale map of the intersection, prepared charts and Google maps, and after completing their investigation, it was decided that the driver of that transport truck, Dhan Singh Gill ("the defendant"), would be charged under s. 142(1) of Ontario's Highway Traffic Act, R.S.O. 1990, c. H.8, for committing the offence of "right turn not in safety".
[64] A Part III information was then sworn on February 11, 2011, with the defendant being served with a summons on February 28, 2011, informing him to appear in court on April 7, 2011, for the "right turn not in safety" charge. After several more appearances, the matter was set down for a three-day trial to commence on February 22, 2012.
[65] Furthermore, in the trial held on February 22, 23 and 29, 2012, ten witnesses testified. The witnesses are in the order that they testified: (1) Gordon Rockett, a witness who had been driving a motor vehicle westbound on Walker Road and stopped in the left-turn lane for a red light at the intersection at the time of the collision and made a 9-1-1 call; (2) Joven Ramirez, a passenger in a van going westbound on Walker Road and stopped for a red light at the intersection in the left-turn lane at the time of the collision; (3) Glen Pollock, a passenger in the same van westbound on Walker Road and stopped for a red light at the intersection in the left-turn lane at the time of the collision and made a 9-1-1 call; (4) Adrian Hamill, who is employed by Freightliner and qualified as an expert for the identification of transport trucks; (5) Nadine Edwards, manager of safety compliance for TTR Transport; (6) Constable Dave Elson, the first police officer to arrive at the scene and who took statements from witnesses at the scene; (7) Constable George Wang, a police officer in the Major Collision Bureau who operated the Total Station instrument and mapped out the intersection and produced a to-scale diagram of the intersection of Torbram Road and Walker Drive in Brampton; (8) Steve Reynolds, who was qualified as an expert on the identification of transport trucks; (9) Constable Douglas Tracey, the police officer who found the suspect transport truck and who took the statement from the defendant; and (10) Constable Kenneth Wright, the accident reconstructionist, who was qualified as an expert on collision investigation and reconstruction.
[66] After the trial and counsel submissions were completed, judgment was reserved and the matter adjourned to July 16, 2012, for judgment.
(c) SUMMARY OF TESTIMONY
[67] Ten witnesses testified during the trial. The following is a summary of their testimony:
(1) GORDON ROCKETT
Witness who had been driving a motor vehicle that had been the second vehicle stopped for a red light at the intersection facing west in the designated left turn lane on Walker Drive at the time of the contact between the pedestrian and the transport truck and who called 9-1-1
[68] Gordon Rockett testified that he is 33 years old and employed in the logistics business. His company is located on Summerlea Boulevard. He also said he had just finished work at 5:30 pm sharp, which is the same time he finishes work every day, and had been driving westbound on Walker Drive, taking his usual route to go home. He also said that he was stopped at a traffic light, second in line in the left-turn lane. While waiting for the light, he said he happened to look to his left and observed a pedestrian going to cross the street and a large 16-wheel tractor-trailer turning at the same time, which he thought could be close.
[69] Rockett said he then observed the pedestrian walk into or come into contact with the centre of the cab portion of the tractor-trailer on the passenger side and immediately fall on the ground. He then observed both sets of wheels on the trailer drive over the body of the pedestrian. From what he had just witnessed, he said that he was absolutely in shock. He also said the truck just then kept going.
[70] Furthermore, Rockett said the tractor-trailer had been a white cab with a white trailer. However, he did not recall the markings on the cab unit. He also said the cab was a longer style cab and was not sure if it was a sleeper unit. He also knows the trailer had been 53 feet long because of being in the logistics business. In addition, he said the tractor-trailer had been moving northbound on Torbram Road before making a right turn onto Walker Drive. He also said he did not see the tractor-trailer stop, but that it had proceeded to make a normal right-hand turn at a normal speed. In addition, he said the tractor-trailer had been going at quite a slow speed when making the right turn at the intersection, at approximately 10 k.p.h.
[71] Moreover, Rockett said it was dark at 5:37 p.m. He also said that when he got to the intersection at Torbram and Walker there had been another vehicle in front of him, although he does not recall the make of the car, only that it was a four-door sedan. Then, when the light for Torbram Road turned green he said the vehicle that had been directly stopped in front of his vehicle made a real sharp U-turn, then stopped beside him, and the driver of that vehicle turned to him, looking shocked, and indicated to Rockett that he would follow that truck. However, he did not get the name of that driver.
[72] In addition, Rockett said he heard someone shouting to call 9-1-1. He then stepped out of his car and went to survey the situation. He then fumbled with his cellphone before dialing 9-1-1. He also said he had been driving a grey-coloured Ford Fusion and had not moved his car and left it in the same place for three or four hours.
[73] Rockett also said that it had been dark and cold at early evening, on the first of December. After the accident occurred, he said the traffic was still heavy and cars continued to drive by. He also said he tried to protect, in a sense, the body from being hit because he believed other cars would not be able to see the body lying on the street because it was dark at that time. Moreover, he said he had tried to wave down cars approaching because of the body lying in the street. However, he said he had been standing on the street outside of his car when he called 9-1-1, but he stayed near his car. In addition, he said he believed the body and belongings were hit by other vehicles, but is not certain if other vehicles had actually hit the body while lying on the street, since it could have also been the belongings that had been run over by other vehicles. When pressed about other cars hitting the body, he acknowledged that he did not actually observe other vehicles run over the body, but had seen the body rise a bit or thought he had witnessed the body pop up.
[74] Furthermore, Rockett said 9 to 10 vehicles had continued to drive pass in an eastbound direction after the pedestrian was run over. He then said he observed a large white truck also trying to make the same right turn, but this second truck did not complete the turn, had stopped mid-turn, and blocked the scene. He then heard sirens coming and said that an ambulance and the police started to arrive on the scene at the same time.
[75] Rockett also said his planned route to go home that that evening had been to travel south on Summerlea Boulevard, then turn right onto Walker Drive, and then wait to make a left turn onto Torbram.
[76] In addition, Rockett said he had observed the pedestrian step out into the intersection. He also said the pedestrian had been hunched over trying to keep warm and had her head down and appeared to be looking down at the ground and did not seem like she was crossing the intersection. He further said she had been walking looking down, going north, and had walked straight into the intersection. Moreover, he said there is a crosswalk there and believes the pedestrian was inside the crosswalk toward the east crosswalk line, which is closest to where he had been positioned.
[77] In addition, Rockett said he did not see where the pedestrian had come from. He also said there is a bus stop at the corner, but does not recall seeing a bus. He said this bus stop is at the southeast corner of Torbram and Walker. However, he did not see her come from the bus stop.
[78] Moreover, Rockett said the pedestrian had come into contact with the trailer, but then clarified the location as the centre portion of the cab of the tractor-trailer, left of the door. Specifically, he said the pedestrian had contacted with the back half of the cab unit. He further said that when looking at the side view of the cab, then the door is in the centre and the engine is to the right, while the sleeper portion is on the left-hand side.
[79] Rockett also said that when she had walked into the center portion of the cab on the passenger side she fell onto the ground and was then run over by both sets of tires or wheels of the trailer, while the traitor-trailer was completing the turn. In addition, he said the pedestrian had been a maximum of 10 feet from the curb when the contact with the tractor-trailer had occurred.
[80] Furthermore, Rockett said he had observed the pedestrian walk into the side of the cab portion of the tractor-trailer in question while crossing the street. He also said he did not observe the front of the tractor-trailer strike the pedestrian, but did see the tractor-trailer and the female pedestrian making contact with each other. He also said that while the tractor-trailer was making the right turn the pedestrian had been by the door when she was struck.
[81] In addition, during his testimony Rockett had drew on a blank diagram of the intersection, which had been created by Constable Wang of the Peel Regional Police, a red rectangle and a red arrow to the words "Rockett car" that he wrote in red, to indicate where he had been stopped at the intersection. He also drew a red asterisk within the pedestrian crosswalk to indicate where he had observed the actual point of impact between the tractor-trailer and the pedestrian and a red arrow to represent the direction the tractor-trailer had been travelling from northbound Torbram Road to make a right turn onto Walker Drive (see Exhibit 2). Furthermore, he indicated on the diagram that the distance from the impact zone to the curb was about 10 feet.
[82] Moreover, Rockett said that it had been no more than 30 seconds after seeing the collision that he had called 9-1-1. He was also still talking with the 9-1-1 operator when the police arrived, which took a couple to a few minutes. When the police and ambulance arrived, he said the 9-1-1 operator told him that he could get off the line.
[83] Rockett further said that the intersection had been illuminated by normal street lights, which were on. He also said he had no difficulty seeing the pedestrian when he looked in that direction.
[84] Furthermore, Rockett said the traffic light had been red for him while he had been travelling on Walker Drive toward Torbram Road, while the traffic light for the tractor-trailer that made the right turn would have been green. He also said he remembered coasting into position.
[85] In addition, Rockett said he had observed the pedestrian walking a normal pace, that her hands were in her pockets, and that her head was looking down, but that he did not actually see her start to cross. Furthermore, he could not recall if she had been wearing a hood or scarf, but does remember her wearing something to keep her head warm. He also said the pedestrian had been wearing a dark-coloured jacket, dark pants, and something dark over her head, but could not tell if it was a hat or scarf. He further said he thought the pedestrian's whole outfit had been black.
[86] Rockett also said he did not actually see the driver of the tractor-trailer in question or obtain a license plate number because seeing someone struck by a vehicle had been a shocking moment for him. He also said there were no markings or colour on the tractor-trailer, except that it had been a larger cab unit with a bunk in it. He also recalls just a white colour, but could not say it was all white or recall any other colour that stood out.
[87] In addition, Rockett agreed that hundreds of trucks would pass through the intersection at Torbram Road and Walker Drive on a daily basis and that he has seen many tractor-trailers of a white colour and that there are hundreds of white tractor-trailers. Furthermore, he said there were probably numerous tractor-trailers at the intersection in question from 5:30 p.m. to 5:37 p.m. and that the area is an industrial area with loading docks, which require tractor-trailers to be in the area. However, he said he has not observed the areas where tractor-trailers park for the evening, but is aware that trailers are left in loading docks to be loaded.
[88] Furthermore, Rockett said that before the tractor-trailer in question had turned right to go eastbound on Walker Drive he did not recall there being any other vehicles eastbound on Walker Drive.
(2) JOVEN RAMIREZ
Front passenger in a vehicle that had been the first vehicle stopped for a red light at the intersection facing west in the designated left turn lane on Walker Drive at the time the tractor-trailer's rear wheels ran over the pedestrian's body
[89] Joven Ramirez testified that he is 59 years old, does not wear glasses, and has been employed at International Clothiers in Brampton for the last two years. He also said he gave a statement to the police on December 2, 2010, a day after the pedestrian had been run over. He further said the police had written down his statement for him. However, he did not speak to the police on December 1, 2010.
[90] Ramirez also said that at 5:30 p.m. on December 1, 2010, he had just finished work and that his co-worker named Ronald had offered him a ride to the bus stop located at the intersection of Steeles and Torbram. He further said that he had been sitting in the front seat of Ronald's van and that they were travelling westbound on Walker Drive and when they had reached the intersection of Torbram and Walker they had stopped for a red light. He also said there had been a lady pedestrian on Walker Drive. In addition, he said the woman had already been one or two steps into the pedestrian crosswalk when a northbound tractor-trailer made a right turn onto Walker Drive. He said the tractor-trailer then covered his view of the woman and he had been thinking that there would be a big accident if the woman did not step back or the truck come to a stop. He also said that when the truck had straightened out he then saw the woman on the road and the last four wheels of the trailer running over the woman.
[91] Furthermore, Ramirez said that when the trailer had gone, two cars travelling southbound made a left turn onto Walker Drive toward the spot of the accident. He then said he got out of the van and stopped two cars, so they would block the road to prevent other cars from running over the body. He also said he told the drivers of other vehicles to go get the plate number of the truck. In addition, he said he saw another driver get out of a car and call 9-1-1. He also said the driver of the first car southbound had made the 9-1-1 call. In addition, he said that driver had pointed to the truck that had run away, so as to get the license plate number. He said he then got back into the van and they proceeded to leave the area, but Ronald had not followed the tractor-trailer in question. He also said they had not waited around for the police or ambulance.
[92] In addition, Ramirez said that Ronald had been operating a grey-coloured van and that he had been sitting in the front passenger seat while his friend Glen Pollock was sitting in the back seat, back of the driver. He also said their vehicle had been the first car in the left–turn lane.
[93] Moreover, Ramirez said that when he first observed the woman pedestrian he said that she had been walking a little bit slow and was already one or two steps from the sidewalk and into the pedestrian crosswalk when the truck made the right turn. He said that she had come from the southeast side of the intersection and was walking in a north direction. However, he did not see the truck make contact with the woman, but did see its rear tires go over the woman. He also said he could not say what the speed of the truck had been going, but that it had made a continuous motion when making the right turn. He further said he could only see the body of the woman being on the ground after the trailer had already opened or straightened up. In addition, he said that he did not see the tractor-trailer stop. Moreover, he said that no other vehicles had run over the body while it lay on the ground.
[94] Ramirez also said the rear doors or the rear of the tractor-trailer was a red or brown colour. He also said for that particular December day it had been a little bit dark and the weather at the time had been a little bit of a shower. However, he said that he could clearly see the woman. He also said that she had been wearing dark clothes that was hooded.
[95] Furthermore, Ramirez said that he did not make a 9-1-1 call, but after they had left the scene to go to his bus stop he saw his friend, Glen Pollock, make the 9-1-1 call.
[96] Moreover, Ramirez said he had walked to the back of Ronald's van and had only been out of the van for a couple of seconds. He also said that when he saw their light turn to green, he then got back into the van, and they left the area.
[97] In addition, during his testimony Ramirez had drawn a red square and written his name "Joven" beside it on a blank copy of a hand-drawn sketch of the intersection to indicate where the vehicle he was riding in had been stopped (see Exhibit 3). He also said they were the first vehicle stopped in the left-turn lane. He then drew a red arrow to indicate where the truck had turned and a red star to show where the impact between the truck and the body had occurred. He also said that when he did see the pedestrian's body, the body had already been lying on the ground. He then marked on the sketch with a second red arrow to indicate the direction of where the truck had gone. He then used a black pen and drew a black dot on the sketch to indicate the location on the road where he had seen the body.
[98] Furthermore, Ramirez acknowledged that he did not get a description of the driver of the transport truck nor would he be able to identify the race of the driver. In addition, he acknowledged that he did not note the license plate for the tractor-trailer nor did he recall the colour of the cab or the colour of the trailer. On the other hand, he confirmed that he only observed the back portion or the back doors of the trailer, which he said were red or brown in colour. In regards to the colour of the bumpers, he said he did not notice them.
[99] Moreover, Ramirez confirmed that he did not see the front of the cab strike the pedestrian and only saw the four wheels at the back of the trailer run over the body of the female on Walker Drive.
[100] In addition, Ramirez said that he had observed the tractor-trailer in question making the right turn at the same time that their van had been approaching the intersection and stopping for the traffic light, and that he had noticed the woman pedestrian for the first time when she had already walked one step into the crosswalk at almost the same time that the tractor-trailer was turning right. Moreover, he said that the tractor-trailer and the pedestrian were moving at the same time.
[101] However, Ramirez was unable to say whether the pedestrian had been looking up or looking down when she was walking in the crosswalk. In addition, he said he thinks that the pedestrian had a hood on her head and that it was of a dark colour, but could not say what colour the pedestrian's pants were. He also did not think that the pedestrian had been wearing any light-coloured clothing. He also said there were a couple of cars that had gone back and forth at that time of the day. He also acknowledged that the area where the intersection is located is an industrial area where after work there is lots of traffic and that there were lots of tractor-trailers in that area at that time.
[102] In addition, Ramirez said that he was not aware of the make or model of the tractor-trailer in question, but said that the length of the trailer was 50 to 53 feet.
(3) GLEN POLLOCK
Rear passenger in a vehicle that had been the first vehicle stopped for a red light at the intersection facing west in the designated left turn lane on Walker Drive at the time the tractor-trailer's rear wheels ran over the pedestrian's body and who made a 9-1-1 call
[103] Glen Pollock testified that he is 56 years old and has worked for International Clothiers for 12 years, with two of those years at the distribution centre located at Van Der Graaf Court. He also said he had provided a statement to the police on December 2, 2010, a day after the event in question when the event was still fresh in his memory.
[104] Pollock also said that when he left work he had been travelling in a silver van with his co-workers, Joven and Ronald, and were westbound on Walker Drive. He said that Ronald was driving and that Joven was in the passenger seat while he had been sitting in the rear seat behind Joven. Furthermore, he said they were stopped first in line for a red light at the intersection of Torbram and Walker. He also said Ronald had been intending to make a left turn to go southbound on Torbram Road, so that Ronald could drop off Joven and himself at the bus stop. He also confirmed that the north and south traffic lights would have been green as they approach the intersection. Furthermore, he also agreed that the tractor-trailer that ran over the pedestrian had already had begun making a right turn as they were coming to a stop at the line and that the north and south lights on Torbram were green when the truck was making a right turn. However, he said that he could not tell the exact speed of the truck, but acknowledged that it had been making a normal right turn.
[105] Furthermore, Pollock said the truck in question consisted of a cab and trailer and it had been travelling northbound and made a right turn in a continuous movement when a woman was trying to cross. He also said he was not sure of the truck's colours. In addition, he said he had seen the woman near the curb at Walker and Torbram.
[106] In addition, on a blank sketch of the intersection of Torbram and Walker, Pollock drew a red "X" where he first saw the woman. He also drew a red arrow to show the direction of the truck he had observed, which he indicated as northbound Torbram Road and then a right turn onto Walker Drive in an eastbound direction (see Exhibit 4).
[107] Moreover, Pollock said he did not really see the impact between the truck and the woman, but only observed the woman between the cab and the trailer when the truck was making the right turn, and then only saw the woman under the trailer at about one-third of the way back of the trailer portion. Furthermore, he said he only saw the woman being at the curb at the southeast corner, but did not see her approach the curb. He also said she had been heading north and had been about a foot from the curb, although he said that he cannot judge distance very well. In addition, he said that it had been difficult for him to tell if the woman was actually on the road, since he only observed her between the gap between the cab and the trailer. In other words, he acknowledged that he is not sure if she had been on the curb or in the crosswalk close to the curb when the truck began its right turn.
[108] In addition, Pollock said that it had not been raining, but it had been cold and at 5:30 p.m. it was near dusk and the traffic conditions were semi-busy.
[109] Furthermore, Pollock said the woman had been wearing a dark-coloured three-quarter length coat with a hood that she wore on her head, but did not recall that she had been wearing any reflective clothing. He also said he couldn't see her face clearly, but had no problem seeing her body.
[110] Pollock also said the trailer on the truck in question was 40 to 50 feet long.
[111] Moreover, Pollock said that he did not get out of the vehicle and that it was Joven who got out, walked to the back, and then said that someone should call 9-1-1. Pollock then said he took his phone out of his pocket and dialled 9-1-1 when the light for them was still red, and that he was still on the phone when Ronald made his left turn. However, Pollock said that he could not recall how long Joven had been out of the vehicle, but when the light for them had turned green, Ronald had said to Joven that the light was green, and then Joven got back into the vehicle and they moved from the intersection. Pollock further said that he did not witness the police arriving that night.
[112] In addition, Pollock said that he had not been certain whether the woman had been inside or outside the crosswalk. He also said the lighting conditions were dark at that time and there had not been much light around.
[113] Furthermore, Pollock estimates that between the time he had seen the woman and the truck turn right and the time he made the 9-1-1 call, it had been less than a minute.
[114] Pollock also said that the Torbram and Walker area is an industrial area that has a number of warehouses and that hundreds of trucks, including trucks consisting of cabs and trailers, would pass through the intersection of Torbram and Walker on a daily basis.
[115] Moreover, Pollock also said that he could not recall the colour of the truck involved in the collision with the pedestrian, nor had he noticed any markings on the truck or the name of any company on the truck, since he had been concentrating more on the woman at the time. He also said he did not view the driver nor be able to say what the race of the driver is. In addition, he said he did not notice the license plates on the truck or whether it had Ontario plates.
[116] In addition, Pollock said that he did not observe the front of the tractor-trailer come into contact with the pedestrian, but did see the pedestrian under the rear of the trailer at some point when the tractor-trailer had turned right onto Walker Drive.
[117] Moreover, Pollock said that the woman seemed to be looking straight. He also said that he did not see any other vehicles make contact with the pedestrian or see any other vehicles run over the pedestrian when the pedestrian was lying on the ground, except for the tractor-trailer in question making the right-turn onto Walker Drive.
[118] Furthermore, when Pollock had been informed by the court that the pedestrian crosswalk on the eastside of Torbram was represented by two parallel lines on the sketch and then asked whether the location of the "X" he had placed on the sketch was correct, Pollock then corrected his first marking and placed a second "X" at the eastern edge of the crosswalk in black ink and circled the second "X" with black ink.
(4) ADRIAN HAMILL
Qualified as expert on identifying makes and models of transport trucks
[119] Counsel for the defence expressly informed the court that the defence did not have any objection to Adrian Hamill being qualified as an expert in the identification of the cab portion of tractor-trailers. As such, Hamill was recognized by the court as an expert witness for this particular subject.
[120] Adrian Hamill then testified that he is employed with Freightliner and has been since 1989, and has worked as a salesperson, sales manager, and manager of fleet sales. He also said he is very familiar with the Freightliner line of products and has been involved for about 22 years in selling Freightliner trucks in some capacity. Moreover, he said a product line only has a run of 10 years. He also said that the Freightliner Columbia model truck is one of the more popular models sold and has the most market share currently, which makes Freightliner the number one selling brand. He also said that there are probably 400 to 600 of these Freightliner Columbia model trucks sold every year from 1999 to 2007, with different options such as day cabs, flat tops, or sleepers. He also said the trailer in the video he had been shown was not a unique trailer, but also said that trailers are not something he is involved in. He also said that 30% to 40% of the Freightliner Columbia models that his company sold would fit the description of the one he observed on the videotape. However, he said that he could not recall selling any trucks with brown-painted fenders. He also said that approximately 20 trucks sold per month would be with a sleeper, but cannot say percentage-wise how many trucks sold would be of a white colour.
[121] In addition, Hamill said that he had been shown several surveillance videos that the police wanted help in identifying the make, type, or model of a particular truck in the videos. After reviewing the particular truck in question in those videos, Hamill said it was a Freightliner Columbia model truck with dark front fenders and with a sleeper. He also said he could tell by looking at the features of that particular truck that it was a Freightliner Columbia because he is very familiar with the appearance of that product line. However, he said that he could not see any writing on the side of the tractor-trailer or that the tractor-trailer was associated with any company from those videos, emphasizing that some of the videos were grainy. He also said that from the videos and still photographs he had been shown, he said both the tractor and trailer in question appeared to be white in colour. He also said that the coverings over the wheel wells and fenders were brown, but did not notice any other colour anywhere else on the truck. Furthermore, he said he could not identify in the videotapes he had been shown the individual driving the tractor-trailer in question or any license plate.
[122] Moreover, when Hamill had been shown the photographs from the Petro-Canada video marked as Exhibits A, B C, D, and E; the photographs from the 100 Summerlea Boulevard surveillance video marked as Exhibits F, G, H, I, and J; the photographs from the Magna International surveillance video marked as Exhibits K, L, M, N, O, and P; and the 20 photographs from the 20 Trojan Court surveillance video, and then asked which features on the truck in the photographs helped identify the truck as a Freightliner Columbia, he said that the shape and line of the hood where it falls forward; the lines of the vehicle; a seven-inch raised roof on the sleeper cab; the windows in the sleeper portion; and the running lights are exactly located where they should be for the Freightliner Columbia model, since the signal lights for competitors' trucks would be where the running lights are located on the Freightliner Columbia model. He also said the headlights are where the headlights on the truck in the videos should be for a Freightliner Columbia. In addition, he said that the model year for that Freightliner Columbia would be from 2000, the year this model was first manufactured, up to 2007, the last year this model had been manufactured. He also emphasized that the colour of the front fenders had been altered, since everything else is white and the fenders were not white. He further said that it is not a common practise to paint fenders, since a tractor would be worth more when the colour remained the same.
(5) NADINE EDWARDS
Manager of safety compliance for TTR Transport
[123] Nadine Edwards testified that she is employed at TTR Transport as the manager of safety compliance. She also said that its drivers are employed under a subsidiary company of TTR Transport called Worth Personnel. In other words, she said that the drivers are not employees of TTR Transport and the transport trucks used by TTR Transport are not owned by TTR Transport, but are owned by the owners or operators of those transport trucks. However, she said that TTR Transport provides them with loads and authority to go to and from Canada. In addition, for those loads going cross-border, she said those trucks are installed with a satellite device, which is hooked up to the Engine Control Module (ECN) in the truck, so that every 15 minutes the position of the trucks is fed to the antennas on the satellite. Furthermore, information about when the truck is on or off, what speed the truck is going, and the truck's odometer reading is recorded. She also said that TTR Transport is able to communicate with the drivers of these trucks by sending and receiving messages through the satellite device. In addition, she said that this device allows TTR Transport to track their hours.
[124] Edwards also said that the information generated by this device could be provided to the police and that the defendant's information had been provided to the police. Furthermore, she said the defendant's logs regarding hours and what he did for the week in question were also provided to the police (see Exhibit #6).
[125] In addition, Edwards said that each transport truck or tractor has a unit number and an identification number and that the truck driven by the defendant was number "W3036" and the defendant's identification number was "92405". She also said she had retrieved the defendant's daily log from the computer system used by TTR Transport. In describing the contents of the defendant's daily log for the week in question, she explained that the aqua-coloured bars represent the time in which the truck's ignition is off, the red-coloured bars indicate when the defendant was not driving, and the grey-coloured bars indicate the time when the defendant was actually driving and the time at which he had been driving.
[126] Moreover, Edwards said the defendant's log, marked as Exhibit 6, indicated that on December 1, 2010, at approximately 5:10 a.m. to 5:15 a.m. he had already been on duty for about 13 minutes; that at 5:30 a.m. the defendant had been driving; and then he had also been off duty for 49 minutes and then on duty for 41 minutes.
[127] Edwards also referred to a document marked as Exhibit 7, which contains the satellite positions of the defendant's truck that are recorded every 15 minutes, and that also shows where the truck is located by longitude and latitude. As an illustration, she then said that at line 16 of Exhibit 7, at 5:39 p.m., the defendant's truck was located 0.24 km. west of Cosma in Brampton and that the truck's ignition was "on" and its latitude position was 43.72513 degrees and its longitude position was 79.68509 degrees. She also said these coordinates could then be plotted on a map or using Google Maps for the exact location of the truck. In addition, she said TTR Transport uses the Shaw Tracking Service. Furthermore, she said the defendant had been operating the vehicle at 5:30 p.m. based on the satellite, and that at 5:39 p.m. the defendant's truck had been at Cosma in Brampton. She further said the defendant had dropped off the trailer at the owner or operator's yard and finished work a little before 6:00 p.m. on December 1, 2010, based on her review of Exhibit 6.
[128] Furthermore, Edwards said that after a driver informs her company about an accident an accident report is then filled out, as required by the instructions of TTR Transport's insurance company. She also said the defendant was being difficult with TTR Transport in signing the witness statement required by their insurance adjuster and that it had taken the defendant a couple of hours to finally write a statement. However, she said the company had not asked the defendant to admit liability. Furthermore, she said TTR Transport did not do an inspection of the truck or do anything independently; instead, it did everything with the police, including showing the police where the equipment had been located.
(6) CONSTABLE DAVE ELSON
First police officer to arrive at the scene and who took statements from witnesses at scene
[129] Constable Elson testified he has been a member of the Peel Regional Police for 12 years. In regards to the present case, he said he had received a radio call at 5:39 p.m. when he had been at the Queen and Bramalea Road area and was dispatched to the intersection of Torbram and Walker Drive in Brampton. He said that when he arrived at the intersection at 5:41 p.m. he observed two tractor-trailers within the intersection. He said one was red in colour while the other was white in colour. He further said that these two transport trucks had not been moved prior to his arrival. He also said he observed a body, which had been unresponsive, at the southeast corner of the intersection and two persons standing near the body. In addition, he said that when Brampton Ambulance showed up they had attended to the victim.
[130] Furthermore, Constable Elson said that he spoke with two individuals at the scene and had also obtained a statement from another person in a grey car named Gordon Rockett. In addition, he said he spoke with the driver of the white truck that had been stopped within the intersection, who was named Tarwinder Saran.
[131] Moreover, after being shown several photographs taken of the intersection that evening, Constable Elson acknowledged that the two trucks he had observed within the intersection were the trucks shown in the photograph marked as Exhibit 8B, and that the transport truck facing northbound in the right turn lane with the number 53 on it had been the truck driven by Tarwinder Saran.
[132] In addition, Constable Elson said there is a bus stop shown on the right side of the photograph marked as Exhibit 8A. He further said there were no obstructions for northbound Torbram. He also said the intersection was a normal intersection that had been well lit and that nothing stood out in regards to something not working properly.
[133] Furthermore, on a blank sketch of the intersection Constable Elson drew two red rectangles to indicate the location of the two transport trucks that he had observed within the intersection (see Exhibit 9). He also wrote the word "red" on the rectangle he drew facing eastbound in the intersection and the word "white" and the letter "S" on the rectangle facing northbound in the right-turning lane of Torbram Road. He also said the white truck was Tarwinder Saran's truck.
[134] In addition, Constable Elson said he is familiar with the intersection at Torbram and Walker and agreed that it is an industrial area with warehouses on Walker Drive.
[135] Moreover, Constable Elson said he could not recall the temperature, but said that it was not warm because it was December. He also said his notes indicated that it had been wet with rain in the morning and does recall it being wet and damp and that nothing had changed at night. He also said that he did not check the slickness of the roads or make notes about, or recall anything about slick roads. In addition, he said he did not do an inventory of the deceased person nor does he recall if there had been a natural crosswalk there.
(7) CONSTABLE GEORGE WANG
A police officer who operated the Total Station instrument, mapped out the intersection, and produced a to-scale diagram of the intersection
[136] Constable Wang testified he has been with the Peel Regional Police for seven years and is presently working in the Major Collision Bureau.
[137] On December 1, 2010, Constable Wang said he had been called to help in the investigation of a suspected fail-to-remain accident. He also said he arrived at the intersection of Torbram and Walker at 8:33 p.m. In addition, he said he had made a field sketch of the intersection.
[138] Constable Wang also said the intersection comprises of Torbram Road, which runs in a north-south direction and is a four-lane road with designated left-turn lanes. As for the east-west road, he said that it is named East Drive on the westside of the intersection and named Walker Drive on the eastside of the intersection. He also said that for the westbound lanes of Walker Drive there are two through lanes and a dedicated left-turn lane while the eastbound portion of Walker Drive has a single through lane. And, for the westbound portion of East Drive, he said there are two through lanes while the eastbound portion of East Drive has a single through lane and a dedicated left-turn lane.
[139] Furthermore, Constable Wang said the intersection is a flat area and paved with asphalt. He also said the intersection is controlled by traffic lights. In addition, he said there are painted stop lines for cars in all four directions and pedestrian crossing lines.
[140] Moreover, Constable Wang said there is a bus shelter located on the eastside of Torbram Road, south of Walker Drive. He also said the bus shelter adjoins the sidewalk located there.
[141] Constable Wang also said the area is an industrial area, with a Petro-Canada gas station on the northeast corner, a U-HAUL rental business on the northwest corner, while the southeast corner is not built up, paved or with premises, but just a grassy open area with no structures and a couple of traffic light poles.
[142] In addition, Constable Wang said he used a Total Station survey instrument with the help of another officer to map out the collision or accident scene in order to make an accurate map. Moreover, he said a to-scale diagram of the intersection was produced based on the Total Station mapping he did and the X-Y coordinates obtained, which were then uploaded to a program to create the map (see Exhibit 10). He also said the coordinates for the intersection that were obtained that day with the Total Station survey instrument was latitude 43.717 degrees North and the longitude was 79.684 degrees West.
[143] Furthermore, Constable Wang said the pedestrian's body was found lying outside the pedestrian crosswalk at five meters from the curb and four meters east of the east pedestrian crosswalk line, measured from the centre of the pedestrian's body.
[144] Constable Wang also said he had heard on the 680 AM news station on the radio that the temperature outside was minus one degree Celsius and that with the wind chill factor it would feel like minus seven degrees Celsius. Furthermore, he remembers when arriving at the scene that it had been cold. He also said it was clear and the roads were dry.
[145] In addition, Constable Wang said he had looked briefly at the surveillance video from the Petro-Canada station on subsequent days and observed a white tractor-trailer with a sleeper and black wheel wells on that video seconds after the collision had occurred, in which the video time-stamp indicated 5:46:08 (the uncorrected time). However, he did not see any other markings or names of any companies on the tractor-trailer on the surveillance video. Furthermore, he said he could not make out a license plate or get a description of the driver of the tractor-trailer from the video. He also said that the time on the Petro-Canada video was off from the real time. He also said the video was in black and white.
[146] Furthermore, Constable Wang said he did not observe what the pedestrian had been wearing, since the body had been covered with a blanket, but he did see a pool of blood. He also said he did not do an inventory of the pedestrian's possessions at the time.
(8) STEVE REYNOLDS
Qualified as expert on identifying makes and models of transport trucks
[147] Steve Reynolds testified he has 29 years experience in the transportation business and has been involved in purchasing transport trucks for a company in Brampton. Moreover, he is presently the V.P. of operations for Kingsway Transportation. Accordingly, for this proceeding, Reynolds was found to be an expert in identifying the make and models of tractors used in the transportation business.
[148] Reynolds also said he had been approached by Constable Tracey and shown a surveillance video taken from the Petro-Canada gas station, in which he had been able to clearly identify the tractor-trailer in question as a Freightliner Columbia model because of its distinctive features as a tractor and long haul equipment. He said he had been able to identify the model of the tractor unit of the tractor-trailer based on its exterior fairings, the angle of the hood, the shape of the air deflector, the bunk, and the turn indicators on its side at the midpoint of the unit. He also said the turn indicators are mounted lower and use part of the fairing off of the bunk. In addition, he said the Freightliner model has a hood that is smooth sloping and a small grill surface in comparison to other trucks. He also said that the Freightliner Columbia model is a very popular unit for highway operation and would have a dominant market share of approximately 15 to 20%.
[149] Furthermore, when shown the still-frame photograph taken from the 100 Summerlea Boulevard surveillance video, which is marked as Exhibit "I", Reynolds said he recognized it as one shown to him by Constable Tracey. He also said the fairing at the lower section of the tractor has a specific curve and its turn indicators are only on Freightliners. He then drew a red circle around the turn indicator he had referred to on the photograph marked as Exhibit "I". In addition, he said this particular tractor in the photograph is somewhat unique as it has darker coloured fenders on the side. Furthermore, he said that very few companies paint specific parts of tractors because of the cost associated with it. In particular, he said that for the purpose of resale it would not be favourable, which is why there are so many standard white units in today's environment. In addition, from the pictures he had been shown he said he could not tell the year of the Freightliner Columbia tractor. Moreover, he said the shape of the headlights might change from year to year.
[150] Reynolds also opined that tractors with custom painted parts or sections are less than 5% or a ratio of 1 in 20 to 1 in 25.
[151] Moreover, Reynolds said the bunk in the tractor-trailer in question indicates that it is a highway unit and not normally operated in the city. He also said this particular tractor is longer than a day cab.
[152] When shown the surveillance video from the U-HAUL Deport marked as Exhibit "R", Reynolds said the truck making the right turn at the time-stamp of 5:39:27 p.m. (the uncorrected time) was a highway unit tractor with a bunk. He also said the colouring of the fairing located below was consistent with a fairing. Moreover, he explained that the gas tanks on a tractor unit are usually exposed, but the tractor in question does not show exposed gas tanks. He also confirmed that he could not see any writing on the truck in the video.
[153] In addition, when shown photographs marked Exhibits "R" and "I" that were stills taken from the Petro-Canada video, Reynolds agreed that nothing in the two photographs revealed the name of the company associated with the tractor-trailer, since it had been difficult to decipher the image in photograph "I", even though the CVOR number and company name are required by law to be displayed on the unit. He also said that he could not identify the driver of the tractor-trailer in the photographs he had been shown.
(9) CONSTABLE DOUGLAS TRACEY
The police officer who located the transport truck believed to be involved with the pedestrian's death and who also took the defendant's videotaped statement at the police station
[154] Constable Tracey testified that he has been with the Peel Regional Police for approximately 14 years. He also said he is presently assigned to the Major Collision Bureau and has been with this unit for three years.
[155] In addition, Constable Tracey said that at 7:00 a.m. on December 2, 2010, he learned of the incident and was given its details, including learning that the pedestrian had been northbound on Torbram at Walker Drive and the signal was green for northbound and southbound traffic. In addition, he was made aware that a tractor-trailer had been northbound and turned east onto Walker Drive and while in the turn had struck a pedestrian in the crosswalk. He had also been informed that the tractor-trailer they were looking for had been white in colour, contained a sleeper, and had been pulling a 53-foot white trailer. Moreover, he said there had been no description of the driver of the tractor-trailer. He also said he was not sure whether the driver knew or had been aware of the collision with the pedestrian. Additionally, he said he had been made aware about a second vehicle described as a white panel van possibly being involved. Furthermore, he said there may have been damage on the vehicle involved in the collision. In addition, he said there was a question on whether the second vehicle had struck the pedestrian or had struck the pedestrian's belongings.
[156] Moreover, Constable Tracey said he did attend the scene of the fatality and had observed the markings on the pavement where the pedestrian had landed on the road and that this spot was east of and outside of the crosswalk.
[157] Furthermore, Constable Tracey said he had been assigned the task of coordinating the canvassing of vehicles and drivers and for canvassing for surveillance videos. He also said he would have been concentrating on looking for white trucks with a sleeper berth and a white trailer. In addition, he said a command centre had been established at the Petro-Canada gas station located at the northeast corner of Torbram Road and Walker Drive in Brampton. He also confirmed that he did not have any information on December 2, 2010, that the fenders or bumper on the tractor-trailer in question had been brown in colour and that he had only personally observed the brown-coloured fenders on December 7, 2010, when he first stopped the defendant operating the tractor-trailer in question.
[158] In addition, during his canvas for surveillance videos Constable Tracey said he personally viewed videos taken on December 1, 2010, from several locations. He also said he went to the Petro-Canada gas station and spoke to the property manager, who had provided him access to the surveillance videos. Moreover, he noted that the video machine had been running 10 minutes fast while he had been looking at the video machine. He also said he had made this determination by comparing the time-stamp on the video machine with his watch.
[159] Constable Tracey also said he then went to the U-HAUL rental business at 152 East Drive that is located at the northwest corner of the intersection and said the general manager had also provided him access to their surveillance videos. In addition, when he compared the time-stamp on the video machine to his watch he noted that it appeared to be three or four minutes fast.
[160] Furthermore, Constable Tracey said he also went to the Magna International building located at 2550 Steeles Avenue, which is located on the eastside of Torbram Road, south of the intersection in question. He also said he had observed that the surveillance video machine's time-stamp showed it had been running 27 minutes slow when he compared the time to his watch.
[161] In addition, Constable Tracey said that when he viewed the surveillance videos from the U-HAUL rental business, especially the video from camera #7, he determined that the arrival of the police had been recorded on that camera's video and the time-stamp displayed was 5:44 p.m. for that event. Furthermore, he said that based on the incident history and the time that the 9-1-1 call had been received by the police, he calculated that it would have made the time that the pedestrian had been run over at roughly 5:39 p.m. in regards to the time-stamp recorded on the U-HAUL surveillance video. When he viewed the U-HAUL video, specifically concentrating on the events occurring about that 5:39 p.m. time being displayed on the videotape, he saw a tractor-trailer with a sleeper berth make a right turn at the intersection when the video's time-stamp indicated 5:39:31 (the uncorrected time).
[162] Furthermore, Constable Tracey said he then went back to the Petro-Canada gas station and compared the times on the Petro-Canada video with the estimated time that the incident in question had occurred at and observed the tractor-trailer in question making the right turn had a sleeper berth and what appeared to be dark fenders. He also said the Petro-Canada's video showed a view one meter above the ground.
[163] Constable Tracey also said he then compared his notes with the video taken at the Magna International building and said he observed a tractor-trailer northbound on Torbram Road with a sleeper berth and a business logo on the upper passenger side of the trailer near the rear corner of the trailer. Furthermore, he said he also obtained a still image from the surveillance video from 100 Summerlea Boulevard and it appeared to him to be the same vehicle with a sleeper berth and dark fenders on a white tractor pulling a white trailer.
[164] In addition, Constable Tracey said he then contacted Steve Reynolds and showed him the surveillance videos taken from the Petro-Canada gas station and the U-HAUL Depot of the suspect tractor-trailer and asked Reynolds if he could identify what kind of truck it was. He also said his conversation with Reynolds had been about the slope of the tractor's nose, the faring kit over the gas tank, and the location of the lights.
[165] Also after viewing the surveillance videos and the route of the tractor-trailer in question, Constable Tracey said he concluded that the driver of the tractor-trailer had been familiar with the intersection and route. Accordingly, he decided to position himself at the Petro-Canada gas station on December 7, 2010, after 5:00 p.m., to monitor tractor-trailers heading northbound on Torbram Road making right turns onto Walker Drive. At 5:19 p.m., he said he observed a tractor-trailer that matched the description of the tractor-trailer on the videos he had seen with dark-coloured fenders and a sleeper berth. He said he then conducted a traffic stop of that tractor-trailer at Summerlea Boulevard north of Walker Drive. He also confirmed that in order to narrow the search for the tractor-trailer that had been involved in the collision with the pedestrian, he would have been looking for a white tractor-trailer with a sleeper berth.
[166] Constable Tracey also said the driver of the tractor-trailer that he had stopped had identified himself as Dhan Gill. He further said the trailer's license plate was C3168F and the tractor's license plate was 7134PF. In addition, Constable Tracey said he observed on the electronic log in the defendant's vehicle that on December 1, 2010, at 5:38 p.m., this particular tractor-trailer had been in Brampton. He also said the log showed that the unit had been turned off in the yard at 5:54 p.m.
[167] Furthermore, Constable Tracey said that the defendant, Dhan Gill, then voluntarily attended at the offices of the Major Collision Bureau after 6:00 p.m. where Constable Tracey said that he had conducted an interview with the defendant about the collision involving a pedestrian. Furthermore, Constable Tracey said the interview was video and audio recorded (see Exhibit 15). He also said he had taken the defendant to the detachment where forensics and photographs had been taken of the defendant's tractor-trailer. He further acknowledged that the rear doors of the trailer were not red or brown in colour. Furthermore, when shown the photograph marked as Exhibit 16, he agreed that the rear doors are white and that there are red and white stripes at the bottom of the trailer at the rear.
[168] Moreover, when shown photographs of a white tractor-trailer marked as Exhibits 14A and 14B, Constable Tracey said the tractor-trailer shown in those two photographs appeared to be the same tractor-trailer he had seen the defendant operating on that December 7, 2010, night. He also said those photographs of the defendant's tractor-trailer were taken at 180 Derry Road and show the tractor-trailer with dark-coloured fenders and a logo on the trailer.
[169] In addition, Constable Tracey said that after he had interviewed the defendant, reviewed the GPS log (Global Positioning System log) and witness accounts, and viewed the surveillance videos, he believed that the defendant had been the operator of the truck that struck Erica Carmichael that day.
[170] Furthermore, Constable Tracey said he re-attended the Petro-Canada gas station at the northeast corner of the intersection on December 8, 2010, at 11:10 a.m., to review the surveillance videotape taken on December 7, 2010, of him stopping the defendant. After checking the time-stamp on the video machine with his watch he said he could see that the time-stamp on the video machine was running 10 minutes fast. Specifically, he said that he had observed the time-stamp on the video screen showing a time of 11:22:25, and when he looked at his watch, his watch showed 11:12.
[171] Also, in the videotape of December 7, 2010, Constable Tracey said he could see his police car in the parking lot and that he could see from one meter off the ground. He also said the December 7 videotape appeared to be identical to the videotape recorded on December 1, 2010. He also confirmed that he observed the suspect truck with a sleeper berth and white trailer enter into the camera's view on the December 7 videotape at the time-stamp of 5:26:11.
[172] Moreover, Constable Tracey said that on December 8, 2010, he went to the Magna International building, which is located south of the intersection on the eastside and reviewed the surveillance videotape of December 1, 2010. He further said he observed on that videotape what he believed was the defendant's tractor-trailer travelling northbound on Torbram and also saw the geometric shape of a logo on the upper rear of the trailer, which was at the same location and of the same geometric shape as the logo on the defendant's trailer he had observed on December 7, 2010. However, he said that he could not make out the actual wording or symbols of the logo on the videotape.
[173] Constable Tracey also said he had collaborated with Constable Wright in getting the times lined up, including lining up the various surveillance videos with the 9-1-1 call.
[174] Furthermore, Constable Tracey agreed that no surveillance videos that had been seized showed any tractor-trailer coming into contact with the pedestrian; that the defendant had been cooperative, polite, and had wanted to help Constable Tracey; that the defendant had volunteered to go to the police station; that it did not take a lot of prying to get the defendant to volunteer information; that the defendant had consented to the search by the police of his tractor-trailer; that police officers had sent information and paint samples from the defendant's tractor-trailer to the Centre for Forensic Sciences; that there had been no blood from the pedestrian on the defendant's tractor-trailer; that his review of the surveillance videos of the suspect tractor-trailer did not make him aware of the model year of the tractor-trailer nor the identity or race of the driver of that tractor-trailer, nor could he see the license plate of the tractor-trailer on the video.
[175] Finally, on February 28, 2011, Constable Tracey said he attended at the defendant's residence in Brampton where he served him with a summons and explained to the defendant the significance of the court date and the essence of the charge of "right turn not in safety" under s. 142(1) of the Highway Traffic Act. He also said that this completed his investigation.
Summary of the Defendant's statement made or given to a Constable Tracey on December 7, 2010, that was videotaped (see Exhibit 15).
[176] Prior to the defendant giving a statement, Constable Tracey confirmed with the defendant that his name is Dhan Singh GILL and that he is 53 years old. In addition, Constable Tracey confirmed with the defendant that he had been cooperative and friendly. Constable Tracey also confirmed with the defendant that he appeared at the police station voluntarily in regards to an investigation into an accident in which a woman had been run over and killed on December 1, after 5:30 p.m. and that the defendant's vehicle matched the description of the truck, which went through the intersection at the same time that the woman pedestrian had been struck, as a Freightliner with dark-coloured fenders. The defendant was then informed by Constable Tracey that the defendant had not been under arrest and could leave at anytime. Constable Tracey then read a caution to the defendant and informed the defendant that the defendant had not been facing charges at that point nor obligated to say anything to Constable Tracey, but that anything the defendant said would be recorded as part of the investigation.
[177] The defendant then proceeded to give a statement and stated that he drives this truck five days a week, Monday to Friday, and makes the same run each day from Concord to the Ford plant in Dearborn, Michigan, to deliver auto parts. He also said that only he drives this truck, which is a 2004 Freightliner Columbia, but he is not the owner of this truck. He said the owner is Rasham Cheema, who hired him to drive the truck. In addition, he said the truck is leased to the owner, who then contracts it out to TTR Transport and is now operated under TTR Transport. Furthermore, he said this is a good truck that has 110,000 miles. He further said that he started in March or April to make this run. He also said the truck has a sleeper bed and is white in colour with the fenders and bumpers being brown in colour, and the gas tanks are covered. Moreover, he said he pulls the same trailer every day. He also said the license plate of the tractor is 7134PF, the unit number is BJO151, and the license plate for the trailer is C3168F. He also said there is writing on the side of the trailer in blue letters, which says "iwheels Logistics", which is big and in smaller letters on the rear of the trailer. In addition, he said the name "TTR Transport" is displayed on the tractor. He also said that he does not work for "iwheels Logistics".
[178] Furthermore, the defendant said a car that is hired comes to clean the truck in the yard and said the truck may have been last washed 15 days back.
[179] In addition, the defendant said that if anyone stopped on the road they could see many trucks with the same coloured fenders as on the truck he was driving. He also said that he has seen many trucks of the same kind, colour, shape, and model as the one he was driving.
[180] Moreover, he admitted that he had been driving on December 1, which is last Wednesday, as the logs said. He also said that when he came from the yard to go home he said that a police car with flashing lights did not allow him to come to the intersection. He said he had driven to the yard and then came back to the intersection and saw police cars there at Summerlea and Walker, and that the police did not let them go through, so he then went to Airport Road in order to get home.
[181] The defendant also confirmed that he had been off at 1754 hours and took a few more minutes there to take things to his car. He also confirmed that his logs indicated that on December 1st he had picked up his truck at 5:02 a.m. and that the trailer was being loaded until 6:44 a.m. and that he had been off at 7:25 a.m. because he had been possibly fuelling the truck. He said he then drove from Concord, Ontario to Trafalgar Road, which took 38 minutes. He then said he drove from Trafalgar Road to the 401 and then to Windsor, which took 3 hours and 32 minutes. He also said that River Rouge on the log means the bridge. In addition, he said that he had been in Dearborn, Michigan from 11:48 a.m. to 12:42 p.m. to deliver his load. He also said he had been at the Duty Free at the border for 24 minutes. At 1:31 p.m. he said he then started his drive back to Brampton, which took four hours and one minute. He then said he had taken the 401 and got off at the Trafalgar bridge because the 410 is jammed-pack at that time. He also said that it takes a minimum of 45 minutes, when everything is fine, to go from Milton to Torbram. He then said he took Trafalgar to Steeles and then to Torbram. He also said this was the best route and nearly takes it all the time. In addition, he said he had travelled on Steeles and then turned left on Torbram, and then drove up Torbram until Walker, where he turned right and then left on Summerlea Boulevard to go to the Metro lot. He also said he had returned to the yard at 5:38 p.m. that day.
[182] Furthermore, the defendant stated that he remembered coming back and seeing the police there. Also, he said that when he just crossed, there was nothing he remembered that day. He also said when asked if he remembered the colour of the light at the intersection he replied that he could not cross unless the light was green because there was lots of traffic, but cannot remember specifically the colour that day. He further said that it would take five or six minutes to go from the intersection to the lot. In addition, he said that there was nothing when he crossed, but when he came back he said there were police. He also said that a half-an-hour earlier or 45 minutes earlier, then there would be people at the bus stop, but at the time he first crossed it would not be normal to see someone stand on the corner there.
[183] Moreover, the defendant said it was impossible that it was his truck that had been involved in the collision with the pedestrian. He was also adamant that it was not his truck. He further said that he takes so much precaution, that he goes so slow, and that he crossed with great precaution and that he had checked his mirror. He also said that he remembers that he took so much precaution. Furthermore, he said this intersection is a good one and made for trucks. He also said the lane is very wide and that there was no chance and that he can say that day there was nothing like that. He also said it is so wide and so much light there. In addition, he said "we" take lots of precautions. He further said he saw no car or nothing. He also said he did not know if there were any cars there when he made the turn, but thinks it had been wide open that day.
[184] In addition, the defendant gave his consent for the police to search the truck that he had been driving when stopped by Constable Tracey (also Defendant's counsel stated that he had no problems with the defendant's consent to the search of the defendant's truck).
(10) CONSTABLE KENNETH WRIGHT
The accident reconstructionist (qualified as an expert on collision investigation and reconstruction)
[185] Counsel for the defence expressed that the defence did not have any objection to Constable Wright being qualified as an expert for "technical collision investigation and reconstruction". Accordingly, Constable Wright was recognized by the court as an expert on this subject matter.
[186] To begin his testimony, Constable Kenneth Wright said that he has been a police officer with the Peel Regional Police for nearly 30 years. He also said that the last 15 years have been with the Major Collision Bureau where he investigates collisions of motor vehicles that involve fatalities and life-threatening injuries.
[187] Furthermore, Constable Wright said that on December 1, 2010, he had been working the afternoon shift and had been notified on the radio at 5:40 p.m. and requested by the sergeant on scene to attend the scene and conduct an investigation. He also said he arrived at the intersection of Torbram and Walker in Brampton at 6:28 p.m. In addition, he said the scene had been secured and road blocks were made with multiple police vehicles and yellow police tape. Moreover, he said that every direction of roads were closed and secured by officers.
[188] Also, Constable Wright said he observed two large tractor-trailers in the intersection. He said there had been a red tractor with a white trailer facing eastbound that was straddling the entire width of Torbram Road. He also said the cab of this tractor-trailer had been into the line of the crosswalk on the eastside of Torbram on Walker Drive. Furthermore, he also observed a white tractor with a white trailer in the northbound and eastbound turning lane that had been partially into the turn. Moreover, he said the two tractor-trailers were almost together.
[189] In addition, Constable Wright said he saw a yellow blanket placed in the lane on Walker Drive east of the crosswalk. He further said he observed one vehicle in the westbound lanes of Walker Drive that had belonged to a witness.
[190] Moreover, Constable Wright noted that the roads were dry and that it was cloudy and a clear to mixed sky. He also said it had been cold and windy and estimates the temperature was zero degrees.
[191] Constable Wright also opined on how it came to be that the pedestrian's body was lying a few meters outside the pedestrian crosswalk or east of the east line of the crosswalk when witnesses said she had been inside the crosswalk. He reasoned that the pedestrian had been struck or run down by a truck turning right from northbound to eastbound and then its wheels ran over the pedestrian, which is consistent with being in the crosswalk and then knocked down, and tumbling, and then being run over.
[192] In addition, Constable Wright said he plotted the GPS coordinates or the satellite-based longitudinal and latitudinal positions of the defendant's tractor-trailer, which he had obtained from Nadine Edwards from TTR Transport, using Google Maps to get the location of where the defendant's truck had been positioned on a map and also prepared an Excel table of lines 14 to 18 of those satellite positions or coordinates showing the time-stamp, locations stamp, and GPS coordinates from the TTR Transport driver's log (see Exhibit 19). For instance, he said that at 17:56:11 Eastern Standard Time the defendant's truck was positioned 0.25 km. WNW of Cosma in Brampton, which is latitude 43.72675 degrees North and longitude 79.6849 degrees West. He said he then compared this to the time when the pedestrian had been determined to have been struck and to where the defendant's truck had been at that time.
CHART OF LOCATION OF TRACTOR AND TRAILER DRIVEN BY DEFENDANT ON DECEMBER 1, 2010, at certain times (Exhibit #19)
| Item | Date/Time | Location | Status | Latitude | Longitude | Speed | Direction |
|---|---|---|---|---|---|---|---|
| 14 | 12/01/10 17:56:11 EST | .25 km WNW of Cosma in Brampton, ON | Off | 43.72675 | -79.6849 | 0 | Northwest |
| 15 | 12/01/10 17:46:35 EST | .25 km WNW of Cosma in Brampton, ON | On | 43.72675 | -79.68486 | 0 | North |
| 16 | 12/01/10 17:39:12 EST | .24 km WNW of Cosma in Brampton, ON | On | 43.72513 | -79.68509 | 0 | North |
| 17 | 12/01/10 17:29:45 EST | 2.36 km WNW of Sousa Truck and Trailer in MISSISSAUGA, ON | On | 43.698 | -79.69759 | 18 | Northeast |
| 18 | 12/01/10 17:14:34 EST | 4.44 km NNE of Danbro Yard in MISSISSAUGA, ON | On | 43.644476 | -79.75662 | 55 | Northeast |
[193] Furthermore, Constable Wright said he had also obtained the time for the 9-1-1 calls from the CAD Report on the 9-1-1 calls (see Exhibit 18) and used this information in his determination of where the defendant's tractor-trailer had been at that time.
[194] Constable Wright also said he prepared and plotted the locations of the defendant's tractor-trailer based on specific times from the satellite positions obtained from the TTR Transport driver's log onto five separate Google maps (see Exhibits 20A, 20B, 20C, 20D, and 20E). In addition, he said that at 5:14.34 p.m. Eastern Standard Time the defendant's tractor-trailer had been located in the area of Steeles and Mavis in Brampton. And, at 529:45 p.m., the defendant's tractor-trailer had been on Steeles Avenue, just east of Dixie Road. Then at 539:12 p.m., it had been on Trojan Court by Summerlea Boulevard, which is north of Walker Drive. And, at 546:35 p.m. it had been near Trojan Court, but at the back towards the railroad track. He also said the green arrow on the Google map he prepared, and marked as Exhibit 20E, shows the location of the defendant's truck at 20 Trojan Court at 5:56:11 p.m., which is where the defendant parks his truck for the night.
[195] In addition, Constable Wright prepared another Google map document, marked as Exhibit 21, for determining the location of where the 9-1-1 calls were made from. He said the GPS coordinates obtained from the CAD Report (Exhibit 18) for the location of the 9-1-1 calls were 43.08.433 degrees latitude and 79.41.00.82 degrees longitude, which when plotted using the Google Map program put the origin of the 9-1-1 calls at the intersection of Torbram Road and Walker Drive. He also said the 9-1-1 calls came in at 5:37.15 p.m., 30 seconds to one minute after the defendant's truck had made the right turn.
[196] Moreover, Constable Wright said he prepared another map in which he made a simple calculation using the Google map program to determine the distance from the intersection of Torbram and Steeles to the intersection of Torbram and Walker and said it was approximately 400 meters (see Exhibit 22). In addition, he made another map to determine the distance from the intersection of Torbram and Walker to Trojan Court, which was the location of the defendant's truck at approximately 5:39 p.m., and said that it was 1263.6174 meters (see Exhibit 23). Then he said he made a calculation to determine how long it would take for the defendant's tractor-trailer to travel from the intersection of Torbram and Walker to where the defendant parked his truck for the night, based on the 50 k.p.h. speed limit (or 13 meters per second) for the roads that would be used by the defendant for the distance of 1263.6174 meters. He said it would have taken the defendant's tractor-trailer 90 seconds at a speed of 50 k.p.h. to travel from the intersection of Torbram and Walker to where the tractor-trailer was parked for the night. He also said that this calculation was based on a constant velocity and did not take into account the time it would take for the tractor-trailer to stop or slow at a four-way stop or to make turns during the route from the intersection of Torbram and Walker, then east along Walker Drive to Summerlea Boulevard, then a left turn to go north on Summerlea Boulevard to Trojan Court, and then a right turn on Trojan Court to where the tractor-trailer would be parked for the night.
[197] In addition, Constable Wright said he prepared an image using an aerial photograph of the area of Torbram and Walker, which he said had been either taken in 2009 or 2011 and which the Peel Regional Police uses for crime management (see Exhibit 24). He also said the area had not changed since the night of the event and looks like it would have on December 1, 2010.
[198] Furthermore, Constable Wright said he then plotted onto the aerial photograph of the area surrounding the intersection the locations of the surveillance videotapes that were obtained, indicated by different coloured triangles to indicate the location of the video camera and the view the video camera would have had (see Exhibit 25). He also said he plotted the locations of the Petro-Canada surveillance video camera at the northeast corner of the intersection; the two U-HAUL Depot surveillance video cameras at the northwest corner of the intersection; the Gardena Canada video camera at 100 Summerlea Boulevard; the Magna International video camera located at the northeast corner of Steeles and Torbram; the video camera on the Brampton Transit bus travelling northbound on Torbram Road; and the video camera from the entrance of the lot at 20 Trojan Court. He also said he had superimposed onto the aerial photograph some still photographs with time-stamps taken from the various surveillance videos. Moreover, he said a still photograph from the Gardena Canada video shows the driver's side of the truck that he believes had been the tractor-trailer that struck the pedestrian. In addition, he said the still photograph from the Petro-Canada video also shows the driver's side of truck he believes had been the tractor-trailer that struck the pedestrian on Walker Drive east of the intersection.
[199] Moreover, Constable Wright said that the Magna International video camera would capture the scene looking at the west parking lot from the Magna International building and also captures Torbram Road. He also said he believes the videotape from the Magna International building recorded Erica Carmichael walking through the west parking lot that night. Furthermore, he said it had taken her a couple of minutes to walk the 400 meters from the bus stop at Steeles and Torbram through the Magna International parking lot to the intersection of Torbram and Walker. He also said that she had gotten off the westbound Brampton Transit bus on Steeles Avenue at 5:33 p.m. In addition, he said that Erica Carmichael had been coming from work at the Bay Department store located at the Woodbine Centre.
[200] In addition, he said the Brampton Transit bus videotape captured the view in front of the bus as it travelled northbound on Torbram Road.
[201] Furthermore, Constable Wright said he has viewed the U-HAUL Depot videotape at least a hundred times that showed two trucks making the right turn on Walker Drive. He also estimates the truck that ran over the pedestrian, which he describes as Northbound Tractor-Trailer #5, had taken a minimum of five seconds to seven seconds to make the right turn. Moreover, he explained that his definition of completing a right turn is comprised of coming into the intersection, making the right turn, and being clear of the intersection. Furthermore, based on his scrutiny of the four surveillance videos, he acknowledged that the speed of Northbound Tractor-Trailer #5 had not been excessive or that its turn had been done with excessive speed, nor can he say that it had failed to signal its turn.
[202] In addition, Constable Wright said there is a glass bus shelter in which only one side has a poster, which would have been seen by drivers travelling northbound on Torbram before Walker Drive, but is not an obstruction of the sidewalk.
[203] Constable Wright also said he prepared a Time-Line Chart for various events (see Exhibit 26), such as the time when a particular vehicle enters the intersection or the time when the traffic light changes, so that he could integrate the surveillance videos with each other to create the same time-line for all the events that occurred and that are visible on each video. Moreover, he said that by finding common or the same events, including the locations of particular vehicles that he had been able to identify in the different videos, he had been able to correct the times-stamps of those videos that were not time-stamped correctly when they were compared with the time the 9-1-1 calls were made and the time-stamps displayed on the Brampton Transit Bus video, which had been recorded or time-stamped with the correct time. Furthermore, he said the chart had been divided into one-second intervals with 30 intervals per page. He also said he set out the amount the time-stamp on a particular surveillance video had been out by and what the corrected time-stamp is for each event that is observable on the videotapes. Furthermore, the headings for the columns on the chart he created consisted of the "Actual Time"; the "Compilation" video's time-stamp, which he said is still approximately 15 seconds too fast; the "9-1-1" Cad System (Police) time which is accurate time; the time-stamps from the Brampton "Transit" bus video, which are also accurate times; the "Magna" International's video's time-stamps, which are approximately 33 minutes and 50 seconds fast; the U-HAUL Depot's video time-stamps, which are approximately 3 minutes fast; the "Petro"-Canada gas station's video time-stamps, which are approximately 9.5 minutes fast; a description of the "Event" that occurred; and the colour of the traffic "Lights" at a specific time for north/south traffic at the intersection of Torbram and Walker.
[204] Furthermore, Constable Wright prepared a "Consistencies Chart" (see Exhibit 28), to show how the various surveillance videos fit together through the consistencies of events, such as a garbage truck that could be found in one particular video, which is also observable on another video, so that the time-stamps on the videos that were not recorded with the actual or correct time could be corrected and matched up to the actual times.
[205] However, on page 4 of this Consistencies Chart, Constable Wright had indicated that three trucks seen in some of the videos had not been accounted for. Specifically, he said that he could not account for what had happened to or where those three trucks had actually went or travelled to. For example, he explained that one truck had been westbound on Walker Drive, east of Torbram Road, which he had seen on the Petro-Canada video, but the same truck could not be seen on the U-HAUL Depot video, which he reasoned could mean it had turned right to go northbound on Torbram, as an explanation why it had not been visible on the U-HAUL Depot video.
[206] In addition, Constable Wright said he had counted every truck in every surveillance video and said there had been eight tractor-trailers that had been northbound on Torbram Road at the relevant time between 5:32 p.m. to 5:40 p.m. And, upon reviewing all the videos, he said that he could account for each of those eight northbound tractor-trailers and be able to say what direction each of them had gone when they reached the intersection of Torbram and Walker. He also referred to these eight tractor-trailers as Northbound Tractor-Trailer #1, which he said was a day cab with no sleeper berth; Northbound Tractor-Trailer #2; Northbound Tractor-Trailer #3; Northbound Tractor-Trailer #4; Northbound Tractor-Trailer #5, which Wright believes is the defendant's tractor-trailer; Northbound Tractor-Trailer #6, which was one with a dark-coloured cab; Northbound Tractor-Trailer #7; and Northbound Tractor-Trailer #8, which was the white tractor with a white trailer driven by Tarwinder Saran. Moreover, he prepared a table listing those eight northbound tractor-trailers with their description and the direction they had taken at the intersection of Torbram and Walker (see Exhibit 27).
Exhibit 27
There were 8 T/T's N/B on Torbram north of Steeles in approximately 8 minutes from 5:32 to 5:40 p.m. (none went N/B in first two minutes of 10 minute clip)
| Truck | Actual time | Time N/B Steeles | Where it went |
|---|---|---|---|
| N/B#1 | 5:32:12 | Went straight thru Torbram/Walker at 5:32:38 | |
| N/B#2 | 5:32:50 | Turned right at 5:33:25 E/B Walker at 5:33:47 | |
| N/B#3 | 5:32:55 | Turned right at 5:33:44 E/B Walker at 5:33:58 | |
| (2 and 3 seen one behind the other N/B on Torbram going through a green light at Steeles) | |||
| N/B#4 | 5:35:07 | Went straight thru Torbram/Walker at 5:35:46 | |
| N/B#5 | 5:35:45 | Turned right at 5:36:26 E/B Walker at 5:36:35 | |
| N/B#6 | 5:39:32 | Went straight thru Torbram/Walker at 5:39:59 | |
| N/B#7 | 5:39:37 | Went straight thru Torbram/Walker at 5:40:03 | |
| (5 and 6 are one behind the other and like 2 and 3, were likely together N/B on Torbram and came together through a green light at Steeles) | |||
| N/B#8 | 5:40:02 | Came up to turn right and stopped at 5:40:33 |
[207] Of these eight tractor-trailers that had been travelling northbound on Torbram Road through the intersection at Walker Drive over a period of ten minutes, Constable Wright said that none of them had been travelling northbound for the first two minutes of the video clip for the period of 5:30 p.m. to 5:40 p.m. He also said that four of them went straight through the intersection, which he referred to as Northbound Tractor-Trailers #1, #4, #6, and #7, and that two of the northbound tractor-trailers, Northbound Tractor-Trailers #2 and #3, had made the right turn onto Walker Driver before the defendant's tractor-trailer, referred to as Northbound Tractor-Trailer #5, had made the right turn at Walker Drive. In addition, he said that Northbound Tractor-Trailer #2 had turned right onto Walker Drive at 5:33:25 p.m. and that Northbound Tractor-Trailer #3 had turned right onto Walker Drive at 5:33:44 p.m. [Erica Carmichael did not get off the bus until 5:33 p.m.] Furthermore, he said he only observed on the videos that Northbound Tractor-Trailers #2, #3 and #5 had made the right turn onto Walker Driver. In addition, he concluded that Northbound Tractor-Trailer #5 had been the tractor-trailer that hit the pedestrian and that it would have made the right turn onto Walker Drive at the time the pedestrian had been struck at 5:36:26 p.m. He further said that Northbound Tractor-Trailers #6 and #7 had gone straight through the intersection and that Northbound Tractor-Trailer #8, driven by Tarwinder Saran, had attempted to turn right onto Walker Drive, but could not because of the pedestrian's body lying on the road.
[208] Furthermore, after compiling the various surveillance video time-lines and tweaking the time-lines to accurately coincide with the time of the 9-1-1 call, the arrival of Constable Elson at the scene, and the time-stamps on the Brampton Transit bus video, which were recorded in the correct time, Constable Wright said he had determined that the pedestrian had been struck at 5:36:26 p.m. by the tractor-trailer referred to as Northbound Tractor-Trailer #5.
[209] Moreover, Constable Wright said that some of the videos show the change in the colour of the traffic lights at the intersection of Torbram and Walker. He further said that the northbound and southbound traffic lights for the intersection at Torbram and Walker had changed to a red light at 5:37:05 p.m. In addition, he said that Gordon Rockett's 9-1-1 call had been received at 5:37:15 p.m. He also said that there is an advanced-green light for northbound left turns on Torbram Road. Furthermore, he said that the southbound light had turned green at 5:38:01 p.m. and that at 5:38:20 p.m. a white tractor with a dark trailer had been eastbound on East Drive and then stops at the intersection. He also said that at 5:40:38 p.m. Northbound Tractor-Trailer #8 that was being driven by Tarwinder Saran had attempted to make a right turn onto Walker Drive and then stops and blocks or freezes the intersection and remains there until Constable Elson arrives. Moreover, at this point, he said that on the Petro-Canada video no eastbound traffic can be seen, since the intersection is frozen. He also said police lights can be seen arriving at 5:41:43 p.m. on the video and an ambulance can be seen on the Camera 13 surveillance video heading east.
[210] In addition, Constable Wright said the videos do show the flashing lights of the ambulance and police vehicles arriving, which coincide with the audio recording of the 9-1-1 call in which Gordon Rockett had made mention of the arrival of the police cars and ambulance. Furthermore, Constable Wright said that the videos also show traffic slowing and a tractor-trailer stopping, which he points outs is an indication that something had happened in the intersection and the event that had caused the traffic to suddenly slow or stop would have logically been the pedestrian being struck.
[211] Constable Wright also said he prepared a compilation of five surveillance videos that had been superimposed onto one video to run simultaneously together, in which the sequences of the events on the videos had been adjusted or corrected so as to match them to the times of the events that had been recorded in or occurred in actual or real time (see Exhibit 33). To create this compilation, he used a special software program that he had obtained from the Public Affairs Unit of the Peel Regional Police. He also said he inserted the audio recording of the 9-1-1 call to create this one video that would play the audio of the 9-1-1 call and show all the videos running simultaneously at the corrected times, which match real time. The five surveillance videos he used for this compilation video were the U-HAUL Depot video from camera 7, the U-HAUL Depot video from camera 13, the Magna International video, the Brampton Transit bus video, and the Petro-Canada video. Furthermore, he said the Petro-Canada video runs in the same space shown on the compilation video as the Magna International video, and commences when the Magna International video ends (This compilation video was entered with the laptop, the software program, and the shortcut on the desktop screen that can run the compilation video and marked as Exhibit 36. In addition, the desktop's screen printout showing the shortcut and the compilation video IFO had been entered as Exhibit 35).
[212] In addition, based on his experience with paint samples and vehicles in hit-and-run situations where a pedestrian is struck by a vehicle in which there is paint damage, Constable Wright explained that broken micro-organisms would be found lodged in the clothes of the pedestrian. He also said that when a pedestrian is struck hard enough to cause damage to a car, then there would be car-to-clothes and clothes-to-car transfer. However, he did not know at what speed a vehicle would have to be travelling at in order to cause the transfer of debris to occur from the vehicle to the pedestrian's clothing or transfers to occur from the pedestrian's clothing to the vehicle. In addition, he said that the paint samples taken from the defendant's tractor-trailer and compared to the white deposits or paint recovered from the pedestrian's clothing or articles were eliminated by the Centre of Forensic Sciences as matching the paint samples taken from or coming from the defendant's tractor-trailer.
[213] Constable Wright also opined that since the tractor and the trailer for the defendant's tractor-trailer would travel at different arcs when making the right turn, then the tractor would have had to travel wider out and some distance before crossing into the pedestrian crosswalk and before contact with the pedestrian could have occurred if the defendant did not want to mount the curb with the trailer's wheels. On the other hand, if the tractor had turned sooner so that the trailer's wheels would have mounted the curb, then he said the contact with the pedestrian would have been only a few steps from the curb.
[214] Furthermore, Constable Wright indicated that the colour of the pedestrian's clothing as indicated in the Centre for Forensics Science Report stated that she was wearing a grey hat, black hooded sweater, an army green three-quarter length coat, and black dress pants, and that none of her clothing was reflective or light in colour (see Exhibit 12).
[215] Moreover, Constable Wright confirmed that Walker Drive has one wide lane that goes eastbound. He also said that a normal lane is about 3.5 meters wide. He further said that the eastbound lane on Walker Drive was not as wide as two lanes, but wider than one lane, and therefore would be between 3.5 to 7 meters wide.
[216] Constable Wright also agreed that a 15-foot long logo that said "iwheels Logistics" on the upper rear portion of the trailer and the tractor's brown-coloured bumper and fender could be visible or seen at 5 to 15 feet away and that none of the witnesses, who were stopped in the westbound lane to turn left and who were as close as five feet away from the turning tractor-trailer, said they had noticed brown-coloured bumpers or fenders nor that they had noticed the 15-foot name of the company on the trailer. He also confirmed that none of the videos from the Magna International building, the U-HAUL Depot, the Petro-Canada gas station, and the Brampton Transit bus had shown any tractor-trailer coming into contact with the pedestrian, Erica Carmichael, nor shows Erica Carmichael clearly, and that only the Magna International video shows a pedestrian walking, but that one cannot be sure that it in fact had been Erica Carmichael. In addition, he agreed that the Brampton Transit bus video did not show any pedestrian on the sidewalk as it passed through the intersection in question. Furthermore, he confirmed that none of the surveillance videos showed a pedestrian crossing Walker Drive at Torbram Road from one side to the other side in the crosswalk. He also acknowledged that the videos had shown that the tractor-trailer in question had made a normal turn.
[217] Furthermore, Constable Wright said because of the distance the surveillance video cameras were away from the intersection, as well as the cameras at the U-HAUL Depot and the Petro-Canada gas station had been only positioned to capture what goes on in their respective parking lots, and that since only the top 20% of the video frame would show the event in question, then these surveillance cameras would not have been able to capture the actual contact between the tractor-trailer and the pedestrian.
4. APPLICABLE LAW
[218] The "right turn not in safety" offence is contrary to s. 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which provides that the driver of a vehicle upon a highway before turning right at any intersection shall first see that the movement can be made in safety:
Signalling turns and stops
Signal for left or right turn
142(1) 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.
[219] Furthermore, according to s. 140(1)(a) of the Highway Traffic Act, where there are designated pedestrian crossovers indicated with lines or other markings on the surface of a roadway, motorists or drivers of vehicles are required to yield to pedestrians who cross a roadway within that pedestrian crossover by slowing down or stopping if necessary, if the pedestrian is on the same half of the roadway for which the vehicle is travelling:
Pedestrian crossover, duties of driver
140(1) Subject to subsection (2), when a pedestrian or a person in a wheelchair crossing a roadway within a pedestrian crossover,
(a) is upon the half of the roadway upon which a vehicle or street car is travelling; or
(b) is upon half of the roadway and is approaching the other half of the roadway on which a vehicle or street car is approaching so closely to the pedestrian crossover as to endanger him or her,
the driver of the vehicle or street car shall yield the right of way to the pedestrian or a person in a wheelchair by slowing down or stopping if necessary.
[220] Equally, where crosswalks are located at an intersection governed by traffic and pedestrian control signals, s. 144(7) of the Highway Traffic Act, provides that drivers, when permitted to proceed through the intersection, such as making a right turn, are required to yield the right of way to pedestrians who are lawfully within a crosswalk:
Yielding to pedestrians
144(7) When under this section a driver is permitted to proceed, the driver shall yield the right of way to pedestrians lawfully within a crosswalk.
[221] And, in regards to pedestrian crossing an intersection with a green light or pedestrian "walk" signal, according to 144(26) of the Highway Traffic Act, the pedestrian is entitled to complete the crossing if the light changes before they reach the other side and motorists stopped for the lights must ascertain that the crossing is free before proceeding:
144(26) A pedestrian who has commenced crossing an intersection with the green light or pedestrian "walk" signal in their favour is entitled to complete the crossing if the light changes before they reach the other side while drivers who have stopped for the lights must ascertain that the crossing is free before proceeding.
[222] Furthermore, s. 144(28) of the Highway Traffic Act, provides that where a pedestrian lawfully enters a pedestrian crosswalk controlled by pedestrian signal lights, drivers of vehicles must still yield the right of way to the pedestrian in the crosswalk, even though the pedestrian signal has changed to a "don't walk" signal:
Pedestrian right of way
144(28) Every pedestrian who lawfully enters a roadway in order to cross may continue the crossing as quickly as reasonably possible despite a change in the indication he or she is facing and, for purposes of the crossing, has the right of way over vehicles.
[223] On the other hand, s. 140(4) of the Highway Traffic Act, imposes a duty on pedestrians at pedestrian crosswalks not to leave the curb and walk into the path of a vehicle that is so close that it would be impracticable for the driver of that vehicle to yield the right of way:
Duty of pedestrian or person in wheelchair
140(4) No pedestrian or person in a wheelchair shall leave the curb or other place of safety at a pedestrian crossover and walk, run or move the wheelchair into the path of a vehicle or street car that is so close that it is impracticable for the driver of the vehicle or street car to yield the right of way.
[224] Additionally, where pedestrian crosswalks or crossovers are provided for crossing roadways, then according to s. 144(22) of the Highway Traffic Act, pedestrians are not permitted to cross the roadway, except within the lines of that pedestrian crosswalk or crossover:
Pedestrian crossing
144(22) Where portions of a roadway are marked for pedestrian use, no pedestrian shall cross the roadway except within a portion so marked.
[225] In addition, the following definitions contained in s. 1(1) of the Highway Traffic Act, are relevant to this proceeding:
1(1) In this Act,
"crosswalk" means,
(a) that part of a highway at an intersection that is included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the roadway, or
(b) any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface;
"highway" includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;
"intersection" means the area embraced within the prolongation or connection of the lateral curb lines or, if none, then of the lateral boundary lines of two or more highways that join one another at an angle, whether or not one highway crosses the other;
"pedestrian crossover" means any portion of a roadway, designated by by-law of a municipality, at an intersection or elsewhere, distinctly indicated for pedestrian crossing by signs on the highway and lines or other markings on the surface of the roadway as prescribed by the regulations;
"roadway" means the part of the highway that is improved, designed or ordinarily used for vehicular traffic, but does not include the shoulder, and, where a highway includes two or more separate roadways, the term "roadway" refers to any one roadway separately and not to all of the roadways collectively;
[226] Furthermore, the definitions for "pedestrian crossover" and "crosswalk" contained in s. 1(1) are virtually identical in their reference to markings or lines on the roadway that distinctly indicate a portion of a roadway for pedestrian crossing, and as such, may be interchanged with each other. Accordingly, in this decision, any reference to "pedestrian crossover" will be synonymous with the term, "crosswalk".
5. ISSUES
[227] The following issues have arisen for the determination of whether the Crown has proven beyond a reasonable doubt that the defendant had committed the offence of "right turn not in safety", contrary to s. 142(1):
(A) Has the Crown proven beyond a reasonable doubt the actus reus of the offence?
(1) Has the Crown proven beyond a reasonable doubt that the transport truck that ran over the pedestrian, Erica Carmichael, is the same transport truck that the defendant had been driving on December 1, 2010?
(2) Has the Crown proven beyond a reasonable doubt that the defendant had been the driver of the transport truck that had run over the pedestrian, Erica Carmichael, while she had been crossing Walker Drive on December 1, 2010, at 5:36:26 p.m.?
(3) Was the pedestrian, Erica Carmichael, crossing Walker Drive within the pedestrian crosswalk?
(4) If the pedestrian, Erica Carmichael, had been crossing Walker Drive within the pedestrian crosswalk how did her body end up lying 4 metres east of the pedestrian crosswalk?
(5) Was the pedestrian, Erica Carmichael, already in the crosswalk before the transport truck begun making its right turn?
(6) Does the testimony about the rear doors of the trailer being red or brown in colour that had been observed on the tractor-trailer in question, create reasonable doubt about the defendant being the driver of the transport truck that ran over the pedestrian, since the trailer being used by the defendant had white-coloured rear doors?
(7) Is the obligation on a driver not to make a right turn unless they first see that the movement can be made in safety a continuous obligation throughout the whole turn or does it only apply at the beginning of the right turn?
(B) If the Crown has proven that the defendant committed the actus reus of the offence beyond a reasonable doubt, then has the defendant met his burden of proving on a balance of probabilities that he took all reasonable steps in the circumstances to first see that he could make the right turn in safety before making the turn or that he had been operating under a mistaken set of facts, if believed, would render his act innocent?
(1) Were there any factors or circumstances that would have affected the defendant's ability to make a safe right turn at the intersection?
(2) For the circumstances, is it reasonable that the defendant ought to have seen the pedestrian, Erica Carmichael, at the southeast corner of the intersection or walking within the pedestrian crosswalk before commencing the right turn?
(3) Would the presence of pedestrian being at the southeast corner of the intersection or walking within the pedestrian crosswalk be reasonably foreseeable in the circumstances?
6. ANALYSIS
[228] The defendant has been charged with making a right turn at an intersection before he had first seen that the right turn could be made in safety, contrary to s. 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H-8, which under the classification of offences is a strict liability offence: R. v. Hamid, [2008] O.J. No. 2059 (QL) (O.C.J.); R. v. Trevisan, [2009] O.J. No. 606 (QL) (O.C.J.); and R. v. Dillman, [2008] O.J. No. 1120 (QL), 68 M.V.R. (5th) 272 (O.C.J.).
[229] In addition, as this court indicated in R. v. Jackson, 2010 ONCJ 487, at paras. 211-214, the analysis to be used in determining whether the defendant should be convicted of committing the strict liability offence contained in s. 142(1) requires a two-stage inquiry. This entails first determining whether the Crown has proven beyond a reasonable doubt that the defendant committed the actus reus of the offence. And, if the Crown meets its burden, then the second stage of the inquiry is undertaken to determine if the defendant has proven due diligence on his part, on the balance of probabilities, by either showing that he had taken all reasonable care for the circumstances to avoid committing the offence or that he had acted under a reasonable mistaken set of facts, if believed, would make committing the prohibited act innocent:
In this proceeding, the prosecution contends that the defendant's conduct in making a left turn with his transport truck had been made before the defendant had first seen the movement could be made in safety, and therefore, failed to meet that requisite standard of care specified in s. 142(1) of the Highway Traffic Act, which ultimately led to the death of Rita Budhu. The turn not in safety offence under s. 142(1) is a regulatory offence that falls in the strict liability offence category, in which the Crown only has to prove the defendant committed the actus reus of the offence beyond a reasonable doubt and does not have to prove any mental element or that the defendant had the intent to commit the offence: R. v. Hamid, [2008] O.J. No. 2059 (QL) (O.C.J.); R. v. Trevisan, [2009] O.J. No. 606 (QL) (O.C.J.); and R. v. Dillman, [2008] O.J. No. 1120 (QL), 68 M.V.R. (5th) 272, (O.C.J.).
Moreover, for a strict liability offence the fault element is negligence; however, the prosecution is not required to prove there was negligence beyond a reasonable doubt. In other words, once the Crown proves the defendant made the left turn before first seeing that the movement could be made in safety beyond a reasonable doubt, negligence is presumed, unless the accused can prove on a balance of probabilities he had not been negligent or that he took all reasonable care for the circumstances to avoid committing the prohibited act or that he acted under a reasonable mistake of fact if believed would make his conduct innocent: R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.).
Hence, the distinctive feature of strict liability offences in comparison to the mens rea or absolute liability category of offences is that there is a two-stage inquiry for determining whether the defendant has committed the strict liability offence in question. The prosecution in the first stage of the inquiry for this proceeding is required to prove beyond a reasonable doubt that the defendant has committed the prohibited act set out in s. 142(1) of making a left turn before first ensuring that the movement could be made in safety. If the prosecution fulfils its burden of proof, then in the second stage of the inquiry the defendant has the onus to prove on a balance of probabilities the defence of due diligence or that he had not been negligent or at fault in committing the prohibited act, in order to be acquitted of the offence.
Despite the tragic consequences, it must be kept in mind that a trier of fact does not consider or decide by emotion, but must impassionately and soberly consider all the admissible evidence and testimony and to properly apply it to the relevant law in deciding whether the defendant has committed the offence of turn not in safety beyond a reasonable doubt and in determining whether the defendant has also met his burden of proving that he had not been at fault or negligent in his conduct, so as to be acquitted of the offence for this particular category of offence that allows for a due diligence defence.
[230] For the first stage of the inquiry, the defence contends the Crown has failed to prove the defendant has committed the actus reus of the offence by emphasizing that the Crown has only constructed a circumstantial case against the defendant. In other words, the defence pointed out that the proof adduced by the Crown to establish the defendant committed the offence is based on circumstantial evidence, as there are no witnesses that had directly observed the defendant being the driver of the transport truck that ran over the pedestrian, or observed the license plate of the truck or trailer, or observed the name of any company on the transport truck or on the trailer. However, in respect to the assessment of or the weight to be placed on direct evidence or on circumstantial evidence, there is no longer a distinction between how courts treat these two types of evidence. Prior to removing the distinction, a special warning was required to being given to the jury in cases that depended solely on circumstantial evidence. Hence, the rationale for removing the distinction in the treatment of these two types of evidence by the courts had been to remove the injustice to the Crown and to the accused caused by having two formulae for the Crown's burden of proof that depended on whether the proof was based on direct evidence or on circumstantial evidence. This justification for removing the distinction has been summarized by the authors A.W. Bryant, S.N. Lederman, M.K. Fuerst in their seminal evidence law textbook entitled, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham, Ontario: LexisNexis Canada Inc., 2009), at sections 2.71, 2.72, and 2.81, in which they further recognized that the distinction between direct and circumstantial evidence today has very little practical significance as juries are no longer given a special warning about cases that are dependent solely on circumstantial evidence:
2.71 Another distinction that is made between types of evidence is the difference between direct and circumstantial evidence. Today, the distinction has very little practical significance. The law used to be that, in cases depending solely on circumstantial evidence the jury required a special warning. This is no longer the case and so the distinction has lost much of its significance.
2.72 A fact in issue cannot always be proved by direct evidence. A witness cannot always be called to prove the facts from personal observations nor can a document always be introduced which directly establishes the fact. The facts in issue must, in many cases, be established by proof of other facts. As many courts have noted, criminals are not likely to commit their crimes within the sight of witnesses and it would be a great blow to the administration of the criminal justice system if such evidence was not admitted. If sufficient other facts are proved, the court may "from the circumstances" infer that the fact in issue exists or does not exist. In such a case, proof is said to be circumstantial.
2.81 In R. v. Cooper, the Supreme Court of Canada rejected the notion that exclusive reliance on circumstantial evidence requires any special warning to the jury:
There are a few observations I would make on Hodge's case specifically. Intent is no less a question of fact than is identity or the actus reus of an offence. I would not condone a situation where a trial judge may properly charge a jury under Hodge's case in respect of identity, and all other issues except intent, and then in the same case tell them to approach the Crown's burden of proof on a different basis on the question of intent. There must be consistency in a charge where burden of proof is concerned; and to have two different formulae in one case is as unjust to the Crown as it is to an accused.
The judgment of the House of Lords in McGreevy v. Director of Public Prosecutions [[1973] 1 All E.R. 503.] rejects the notion that there ever was any rule arising from Hodge's case which judges in England were required to follow where all or most of the evidence in a jury trial was circumstantial. In Combo v. The King [, [1938] S.C.R. 396.], this Court referred to the formula in Hodge's case as "the long settled rule of the common law which is the rule of law in Canada" (at p. 397). Notwithstanding this pronouncement, this Court attenuated the rule in its judgment in The Queen v. Mitchell, supra, and manifested its discomfort with Hodge's case in Alec John v. The Queen [, [1971] S.C.R. 781.]. The time has come to reject the formula in Hodge's case as an inexorable rule of law in Canada. Without being dogmatic against any use of the formula of the charge in Hodge's case I would leave the matter to the good sense of the trial judge (as was said in McGreevy), with the reminder that a charge in terms of the traditional formula of required proof beyond a reasonable doubt is the safest as well as the simplest way to bring a lay jury to the appreciation of the burden of proof resting on the Crown in a criminal case.
This case has removed any relevance of the distinction between direct and circumstantial evidence.
[231] Therefore, the Crown's case against the defendant may be based solely on circumstantial evidence and the defendant may be consequently convicted on that evidence if it is accepted by the trier of fact.
(A) HAS THE CROWN PROVEN THE ACTUS REUS OF THE OFFENCE BEYOND A REASONABLE DOUBT?
[232] Several issues have to be resolved first in deciding whether the Crown has proven the actus reus of the offence beyond a reasonable doubt. To start, since no one saw or obtained the license plate number of the tractor-trailer that ran over Erica Carmichael, or saw who had been driving or got a description of the driver, or that the event of the tractor-trailer striking the pedestrian had been captured on a surveillance video, then it has to be determined whether the police have correctly found and identified the tractor-trailer and driver that were involved in Erica Carmichael's death, considering there are hundreds of white transport trucks with sleeper berths that are pulling white trailers on highways and only circumstantial evidence that would place the defendant and the tractor-trailer that he had been driving on December 1, 2010, near the intersection at approximately the time the pedestrian had been run over.
[233] Secondly, if the Crown fulfils its burden in proving the tractor-trailer that ran over Erica Carmichael was indeed the same tractor-trailer driven by the defendant on December 1, 2010, and that it was the defendant who had been driving the tractor-trailer that ran over Erica Carmichael, then it will have to be determined next, whether the Crown has proven beyond a reasonable doubt that the defendant before making the right turn onto Walker Drive had first seen that the movement could be made in safety.
[234] And finally, if the Crown meets its burden in proving the defendant has committed the actus reus of the s. 142(1) offence beyond a reasonable doubt, then the defendant will be convicted unless he can prove on a balance of probabilities that there has been due diligence on his part. If the defendant meets his onus, then he will be acquitted of the offence.
(1) HAVE THE POLICE FOUND THE CORRECT TRACTOR-TRAILER THAT RAN OVER ERICA CARMICHAEL AND CORRECTLY IDENTIFIED THE PERSON THAT WAS DRIVING THE TRACTOR-TRAILER IN QUESTION?
(a) Description of transport truck and trailer that ran over Erica Carmichael from witnesses at intersection
[235] Of the three civilian witnesses who testified at the trial, only Gordon Rockett, who was in his vehicle facing westbound and stopped for a red light at Torbram Road, second in line in the left-turn lane on Walker Drive, was able to give a description of the tractor-trailer involved. He described the transport truck he had observed run over the pedestrian was white in colour, had a sleeper berth, and pulling a 53-foot trailer that was also white in colour.
[236] As for Jovan Ramirez, he only had observed red or brown rear doors on the trailer, but could not say what the colour of the truck or the trailer were. Similarly, Glen Pollock also could not recall the colour of the tractor-trailer involved.
[237] Furthermore, the tractor-trailer that the defendant had been driving when stopped by Constable Tracey on December 7, 2010, had been a white-coloured tractor with a sleeper berth and the trailer he was pulling was 53 feet long and white in colour. It also had brown-coloured front fenders on the tractor and a 15-foot logo on the side of the trailer that said "iwheels Logistics". However, the trailers rear doors were white in colour and not brown or red, but otherwise matches Gordon Rockett's description of the tractor-trailer that had ran over the pedestrian.
(b) Determining the time the defendant had been run over based on the time of the 9-1-1 calls
[238] The CAD Terminal Report of the 9-1-1 calls (Exhibit 18) indicates that the Peel Regional Police received the 9-1-1 call about the pedestrian being run over by a transport truck at 5:37:15 p.m. on December 1, 2010. Constable Wright said that this time of 5:37:15 p.m. is accurate.
[239] Therefore, taking into account that Gordon Rockett had testified about making the 9-1-1 call no more than 30 seconds after seeing the pedestrian being run over by a tractor-trailer and that Glen Pollock had said that he called 9-1-1 within one minute of the seeing the pedestrian being run over, would roughly mean that the pedestrian had been run over between 5:36:15 p.m. to 5:36:45 p.m. Additionally, Constable Wright said he further determined the actual time the pedestrian had been run over by comparing the time Constable Elson had arrived at 5:41:43 p.m. at the intersection, which is accurate time, and in which his arrival had been captured on different surveillance videos, as well as comparing the arrival of Constable Elson and other events captured on the surveillance videos and their corresponding time-stamps and then compared these events to the same events with their corresponding time-stamps that had been recorded on the Brampton Transit bus video, which had also been recorded with accurate time-stamps. This endeavor in tying the same events in the surveillance videos to the same events recorded on the Brampton Transit bus video, aided Constable Wright in establishing the time of 5:36:26 p.m., as the time the pedestrian had been run over.
(c) Surveillance videos which captured the suspect transport truck
[240] As part of their investigation, the police also obtained surveillance videos for December 1, 2010, which had captured the transport truck and trailer that had been suspected of being involved in running over the pedestrian. The videos were from the Magna International building located on the northeast corner of the intersection of Torbram Road and Steeles Avenue; from the U-HAUL Deport located at the northwest corner of the intersection of Torbram and East Drive/Walker Drive; from the Petro-Canada gas station located on the northeast corner of the intersection of Torbram Road and Walker Drive; from the Gardena Canada building located at 100 Summerlea Boulevard, from the 20 Trojan Court lot where the defendant parks his tractor-trailer for the night, and from the Brampton Transit bus that had been travelling northbound on Torbram at the time in question. However, these videos did not capture or show the actual event of the transport truck striking the pedestrian.
[241] In addition, the Petro-Canada and the U-HAUL Depot videos specifically captured the suspect tractor-trailer making a right turn at the intersection at the time the pedestrian had been determined to have been run over at 5:36:26 p.m.
[242] Furthermore, after reviewing the surveillance videos, Constable Wright determined that there were only eight tractor-trailers that were travelling northbound on Torbram Road between 5:30 p.m. and 5:40 p.m. He also said that by viewing and studying all the videos he could account for what had happened to all of those eight northbound tractor-trailers on Torbram Road as they reached the intersection of Torbram and Walker during the critical period. Of those eight tractor-trailers, he observed only four that actually made the right turn onto Walker Drive, which he has referred to as Northbound Tractor-Trailers #2, #3, #5 and #8. However, he had observed two of the four, Northbound Tractor-Trailers #2 and #3, turn right onto Walker Drive at 5:33:25 p.m. and 5:33:44 p.m. respectively, which is prior to the suspect tractor-trailer, Northbound Tractor-Trailer #5, that he had observed making the right turn on the videos at 5:36:26 p.m. As for Northbound Tractor-Trailer #8, the fourth northbound tractor-trailer that turned right, it had attempted to make that right turn at 5:40:33 p.m., but could not complete the turn because of the pedestrian's body lying on the road in front of its path. This eighth of the eight northbound tractor-trailers then blocked the intersection until the police and ambulance arrived. In addition, Northbound Tractor-Trailer #8 was being driven by Tarwinder Saran, who remained at the intersection and gave a statement to the police.
[243] Moreover, Northbound Tractor-Trailer #5 was the last tractor-trailer to make the right turn onto Walker Drive before Northbound Tractor-Trailer #8 driven by Tarwinder Saran had attempted to make the right turn onto Walker Drive at 5:40:33 p.m., but had stopped and blocked the intersection. In addition, the Petro-Canada gas station and U-HAUL Depot videos capture Northbound Tractor-Trailer #5 make the right turn onto Walker Drive at the time the pedestrian was run over at the determined time of 5:36:26 pm.
[244] Furthermore, the Petro-Canada gas station and U-HAUL Depot videos also show traffic slowing or stopped shortly after Northbound Tractor-Trailer #5 completes the right turn onto Walker Drive, which is a strong indication that something had happened at the intersection of Torbram and Walker after or when Northbound Tractor-Trailer #5 had turned right.
[245] As such, it can be reasonably inferred that Northbound Tractor-Trailer #5 had been the tractor-trailer that ran over the pedestrian at 5:36:26 p.m., from the Petro-Canada gas station and U-HAUL Depot videos that captured the slowing or stopping of vehicles in the intersection after Northbound Tractor-Trailer #5 had turned right and that Northbound Tractor-Trailer #5 had been the last tractor-trailer to turn right onto Walker Drive before Northbound Tractor-Trailer #8 driven by Tarwinder Saran had attempted to make a right turn, but stops and then blocks the intersection.
[246] In addition, the Petro-Canada gas station video, which had recorded the events occurring in the intersection in the black and white format, reveal Northbound Tractor-Trailer #5 to be a white-coloured tractor with a sleeper berth, with dark-coloured wheel wells or fenders on the front of the cab, and pulling a white-coloured trailer. Furthermore, there is a rectangular-shaped marking on the passenger side of the trailer of the suspect tractor-trailer that is observable on the Magna International Surveillance video that matches the shape and spot where the "iwheels Logistics" logo is visible on the defendant's trailer shown in the photograph marked as Exhibit 14B.
(d) Expert witnesses identify the make of the suspect transport truck from the surveillance videos
[247] The two expert witnesses, Adrian Hamill and Steve Reynolds, both identified the suspect tractor-trailer, referred to as Northbound Tractor-Trailer #5, captured in the surveillance videos as a Freightliner Columbia transport truck.
[248] Furthermore, Reynolds described Northbound Tractor-Trailer #5 as a white-coloured Freightliner Columbia cab with a sleeper berth and pulling a white-coloured 53-foot trailer that also had unique features of dark fenders or wheel wells at the cab's front and fairings covering the gas tanks.
[249] In addition, the tractor-trailer driven by the defendant when stopped by Constable Tracey on December 7, 2010, and later photographed (Exhibits 14A and 14B) was determined by Constable Tracey to be a white-coloured Freightliner Columbia transport truck with brown-coloured fenders on the front of the cab, with a sleeper berth, and pulling a 53-foot white coloured trailer.
(e) Dark-coloured fenders on front of cab and fairings covering the gas tanks
[250] Moreover, Steve Reynolds testified that he had observed dark-coloured fenders or wheel wells on the front of the cab on the suspect tractor-trailer in the videos shown to him. He also said that it is not common for transport trucks to have particular parts on it painted a different colour because it would affect its resale value and that was the reason why there were so many standard white-coloured transport trucks on the road.
[251] In addition, Reynolds said the dark-coloured fenders on the front of the cab and the fairing covering the gas tank were unique or distinct features on the suspect transport truck.
[252] Furthermore, the tractor-trailer driven by the defendant when stopped by Constable Tracey on December 7, 2010, which was later photographed by the Peel Regional Police (Exhibits 14A and 14B) does show the distinct feature of the brown-coloured fenders on the front of the cab and fairings covering the gas tanks.
(f) Shape of Logo on side of trailer is visible in surveillance video
[253] In the surveillance videotape from the Magna International building marked as Exhibit 34, a rectangular shape can be seen on the passenger side of the trailer of the suspect tractor-trailer while it is travelling northbound on Torbram Road, which matches the rectangular shape of the "iwheels Logistics" logo that is located on the passenger side of the trailer of the tractor-trailer driven by the defendant when he was stopped by Constable Tracey on December 7, 2010, and is also visible in the photographs marked as Exhibit 14A and 14B.
(g) Constable Tracey stops the defendant on December 7, 2010, driving a transport truck and trailer matching the description of the suspect transport truck at the same intersection in which the pedestrian was run over
[254] After viewing the right turn made by the suspect transport truck on the surveillance videos, Constable Tracey had deduced that the driver of the transport truck that ran over Erica Carmichael was likely familiar with or knew the intersection and surrounding area well. This hunch caused Constable Tracey to set up on the northeast corner of the intersection of Torbram Road and Walker Drive on December 7, 2010, in the Petro-Canada gas station to look for tractor-trailers matching the description of the suspect tractor-trailer that he had been made aware of. He had been there to look for white-coloured Freightliner Colombia trucks with a sleeper berth, dark coloured front fenders or wheel wells, and pulling a 53-foot white-coloured trailer.
[255] At 5:19 p.m. of that day, Constable Tracey saw a tractor-trailer travelling northbound on Torbram Road, which had matched the description of the suspect tractor-trailer, make a right turn onto Walker Drive. He then stopped that particular transport truck and learned that the driver was named Dhan Singh Gill (the defendant). The defendant then agreed to follow the officer to the police station for an interview. He also agreed to the police searching the tractor-trailer and taking paint samples from the cab and the trailer of the tractor-trailer he was driving that night.
[256] Furthermore, Constable Tracey testified that the white-coloured transport truck driven by the defendant was a Freightliner Columbia, that the trailer was 53 feet long and white in colour and had white rear doors, and that there were brown-coloured fenders on the front of the cab, and that the electronic driver's log for the transport truck indicated that the truck had been in Brampton on December 1, 2010, at 5:30 p.m.
(h) Voluntary statement made by defendant to Constable Tracey in which he admitted to driving the transport truck on December 1, 2010, and that he recalled seeing the presence of police vehicles at that intersection at about 6:00 p.m.
[257] The defendant in his statement to Constable Tracey that was videotaped on December 7, 2010 (Exhibit 15), admitted to being the sole driver of the white-coloured transport truck that he was driving when he was stopped by Constable Tracey, and also admitted that he uses the same trailer with the transport truck.
[258] As to whether he had been operating the same tractor-trailer on December 1, 2010, as he was operating on December 7, the defendant admitted to Constable Tracey that he had driven the same tractor-trailer and made his usual trip of hauling auto parts to Dearborn, Michigan, and had returned to the lot at 5:38 p.m. by driving through the intersection at Torbram and Walker on December 1, 2010. He also said he drove north on Torbram Road and then turned right onto Walker Drive, and had also taken him 5 to 6 minutes to go from the intersection to the yard where he parked the tractor-trailer.
[259] Moreover, the defendant also informed Constable Tracey that he recalls, after leaving the lot about 6:00 p.m., returning to the intersection as part of his route home, but his route had been blocked or stopped by police vehicles with flashing lights, so he had to take the Airport Road route for a different way home.
[260] In addition, the defendant admitted to Constable Tracey that he takes the same trip to the Ford plant in Dearborn Michigan, five days a week from Monday to Friday, and had been doing so for the last three months since he started doing this trip. He also told Constable Tracey that he usually takes the same route back to the lot where he parks his transport truck.
[261] However, the defendant told Constable Tracey that it was impossible that the tractor-trailer he had been driving had been involved with running over the pedestrian, and that on the day in question he did not notice anything at the intersection, and that he had driven so slowly, and had taken so many precautions that day. He also said there is no one usually standing at the southeast corner at that time of the day when he had turned right at the intersection, but there would have been people waiting at the bus stop 30 minutes to 45 minutes earlier.
[262] The defendant also informed Constable Tracey that the transport truck he was driving is a 2004 Freightliner Columbia that is white in colour with a sleeper berth and has brown-coloured fenders on the front of the cab. He also said he uses the same trailer, which is 53 feet long.
[263] Thus, the tractor-trailer that the defendant was driving on December 7, 2010, was the same tractor-trailer that he had been driving on December 1, 2010, when the pedestrian was run over, and matches the description of the suspect transport truck given by Gordon Rockett and also matches the make of the transport truck that had been identified by Steve Reynolds and Adrian Hamill as a Freightliner Columbia. In addition, there is also a logo visible on the sides of the trailer used by the defendant on December 7, 2010, that is rectangular in shape and contains the words "iwheels Logistics" and is approximately 15 feet in length, which as shown in Exhibits 14A and 14B, also matches the rectangular shape visible on the passenger side of the suspect trailer in the videotape from the Magna International building marked as Exhibit 34. Furthermore, Steve Reynolds identified other distinctive features on the suspect tractor-trailer that are also visible on the videotapes he observed, which included dark-coloured front fenders or wheel wells on the cab and fairings that covered the gas tanks on the cab, which were also visible on the tractor-trailer that the defendant had been driving on December 7, 2010, and is observable on the photographs marked as Exhibits 14A and 14B.
(i) logs from the transport truck the defendant was driving on December 1, 2010, that recorded satellite or global positions of the truck at different times
[264] From the Location Chart marked as Exhibit 19 and from the defendant's driver's logs for the transport truck he drives, it is indicated that the defendant had been driving the truck on December 1, 2010, and that at 5:29:45 p.m. the truck was located at 43.72513 degree Latitude North and 79.68509 degrees longitude West, which when plotted on a map using the Google Map program places the truck on Steeles Avenue, just east of Dixie Road. In addition, the logs indicate that at 5:39:12 p.m. on the same day, the defendant's truck was at latitude 43.72513 degrees North and longitude 79.68509 degrees West, which when plotted on a map using the Google Maps program puts the defendant's transport truck on Trojan Court, east of Summerlea Boulevard, which is the lot where the defendant drops off and picks up the transport truck.
CHART OF LOCATION OF TRACTOR AND TRAILER DRIVEN BY DEFENDANT ON DECEMBER 1, 2010 (Exhibit #19)
| Item | Date/Time | Location | Status | Latitude | Longitude | Speed | Direction |
|---|---|---|---|---|---|---|---|
| 14 | 12/01/10 17:56:11 EST | .25 km WNW of Cosma in Brampton, ON | Off | 43.72675 | -79.6849 | 0 | Northwest |
| 15 | 12/01/10 17:46:35 EST | .25 km WNW of Cosma in Brampton, ON | On | 43.72675 | -79.68486 | 0 | North |
| 16 | 12/01/10 17:39:12 EST | .24 km WNW of Cosma in Brampton, ON | On | 43.72513 | -79.68509 | 0 | North |
| 17 | 12/01/10 17:29:45 EST | 2.36 km WNW of Sousa Truck and Trailer in MISSISSAUGA, ON | On | 43.698 | -79.69759 | 18 | Northeast |
| 18 | 12/01/10 17:14:34 EST | 4.44 km NNE of Danbro Yard in MISSISSAUGA, ON | On | 43.644476 | -79.75662 | 55 | Northeast |
(j) GPS or satellite positioning coordinates plotted on Google Maps to determine location of defendant's transport truck
[265] In addition, from the Google Map (Exhibit 20B) prepared by Constable Wright using the GPS coordinates from the defendant's transport truck of latitude 43.698 degrees North and longitude 79.75662 degrees West at 5:29:45 p.m. on December 1, 2010, the defendant's transport truck was on Steeles Avenue East, just east of Dixie Road, in Brampton. Hence, at approximately 7 minutes before Erica Carmichael was run over at the intersection of Torbram Road and Walker Drive the defendant was on Steeles Avenue, just east of Dixie Road.
[266] Furthermore, from the Google map (Exhibit 20C) prepared by Constable Wright using the GPS coordinates from the defendant's transport truck of latitude 43.72513 degrees North and longitude 79.68509 degrees West at 5:39:12 p.m. on December 1, 2010, the defendant's transport truck was on Trojan Court east of Summerlea Boulevard, which is the lot where the defendant drops off and picks up the transport truck.
[267] Moreover, Constable Wright prepared a Google Map (Exhibit 23) using the Google Maps program to calculate and show the distance from the intersection of Torbram Road and Walker Drive to the lot at 20 Trojan Court, to be a distance of 1263.6147 meters.
(k) How long does it take to drive from the intersection of Torbram and Walker to 20 Trojan Court that is about 1264 meters away?
[268] Based on the 9-1-1 call received by the Peel Regional Police at 5:37:15 p.m. and other events that were recorded at accurate times, it had been determined by Constable Wright that the pedestrian had been run over at 5:36:26 p.m.
[269] In addition, the difference in time between 5:39:12 p.m., when the defendant's transport truck was located at the 20 Trojan Court lot, and 5:36:26 p.m., when the defendant had been run over is 166 seconds. Moreover, Constable Wright calculated that it would have taken a vehicle travelling at the constant rate of speed of 50 k.p.h. (or 13 meters per second), which is the posted speed limit for Walker Drive, 90 seconds to travel 1263.6147 meters from the intersection of Torbram and Walker to 20 Trojan Court, without taking into account stopping for the four-way stop at Summerlea Boulevard and Walker Drive and then turning at 20 Trojan Court and the acceleration and deceleration that would have occurred during the journey between the intersection and the lot where the defendant parks his tractor-trailer for the night. The difference between taking 90 seconds to cover the distance from the intersection to 20 Trojan Court at the constant rate of speed of 50 k.p.h. and the time of 166 seconds between the time the pedestrian had been run over to the time the defendant's tractor-trailer had been situated at 20 Trojan Court at 5:39:12 p.m., is reasonably close in time or duration if deceleration and acceleration and the stop at the 4-way stop is considered, which would lengthen the 90 seconds of time it would take for a tractor-trailer to go from the intersection at Torbram and Walker to Trojan Court at a constant speed of 50 k.ph., and would therefore, have made the 166 seconds of time that elapsed between the time the pedestrian had been run over at the intersection and the time the defendant's truck had been logged by the truck's GPS device as being at 20 Trojan Court at 5:39:12 p.m., to be a reasonable amount of time for the defendant's tractor-trailer to travel from the intersection where the pedestrian had been run over to 20 Trojan Court.
[270] Therefore, it could be reasonably inferred that the defendant's transport truck would have been at the intersection at 5:36:26 p.m., which is the time Constable Wright had determined the pedestrian had been run over by a transport truck taking into account the minimum of 90 seconds that it would have taken to travel between the intersection at Torbram Road and Walker Drive and the defendant's truck's position at 20 Trojan Court at 5:39:12 p.m.
[271] As such, the evidence from the GPS device on the defendant's truck showing the longitudinal and latitudinal coordinates for the truck for December 1, 2010, and the information contained in the driver's log and the time that it would have reasonably taken for the defendant's tractor-trailer to travel from the intersection at Torbram and Walker to 20 Trojan Court, would place the defendant's tractor-trailer in the intersection at about the time Erica Carmichael had been run over.
(l) No evidence of damage from the contact between the pedestrian and the defendant's tractor-trailer
[272] There has been no evidence of any damage being seen on the defendant's tractor-trailer that could have been present from the defendant's tractor-trailer having made contact with Erica Carmichael. Moreover, the defendant informed Constable Tracey that the tractor-trailer had been last washed 15 days earlier.
[273] This lack of damage on the defendant's tractor-trailer, as the defence submit, could suggest that it was not the defendant's tractor-trailer that had run over the pedestrian. However, it is equally plausible that the lack of damage could have been the result of the relatively slow speed, estimated to be 10 k.p.h., at which the defendant's tractor-trailer had been travelling at when contact was made between the tractor-trailer and the pedestrian, even though there is no evidence of what speed a vehicle has to be travelling at before damage on the vehicle would occur.
(m) Paint samples from defendant's transport truck and trailer compared with white deposits on pedestrian's clothing and belongings
[274] The forensic report (Exhibit 12) states that the paint samples taken from the transport truck and the trailer the defendant had been driving when stopped by Constable Tracey on December 7, 2010, do not match any white-coloured deposits or paint taken from Erica Carmichael's clothing or belongings. The report also did not confirm whether the white deposits or paint found in the clothing or belongings had been automotive paint.
[275] Furthermore, there is no evidence at what speed a vehicle, which collides with a pedestrian, would have to be travelling at in order for the transfer to occur of fibers, paint, or other physical or biological materials between the vehicle and the pedestrian.
[276] In addition, the evidence from witnesses and from the surveillance videos capturing the suspect tractor-trailer reveals it had been travelling in a normal fashion at a relatively slow speed and not quickly through the right turn. Constable Wright also said from his observations of the videos that the right turn by the suspect tractor-trailer had taken a minimum 5 to 7 seconds to complete. And, although there is no evidence of damage to the defendant's tractor-trailer, or that it had been washed between December 1 and December 7, or at what speed a vehicle has to be travelling at so that there would be transfers between the vehicle and the pedestrian involved in a collision, the lack of transfer evidence between the defendant's tractor-trailer and the pedestrian's clothing or belongings does not necessarily eliminate the defendant's tractor-trailer as the tractor-trailer that ran over the pedestrian, since the speed of the suspect tractor-trailer had been relatively slow during the right turn it made.
(n) Witness error about colour of rear doors on suspect trailer
[277] The defence also submits that there is reasonable doubt about the tractor-trailer driven by the defendant being involved in running over the pedestrian, since there is evidence that the trailer involved does not match the description of the trailer being used by the defendant on the day in question. That evidence is from Jovan Ramirez, who had testified that he did not recall the colour of the truck or trailer that ran over the pedestrian, but did state he had observed red or brown rear doors on the trailer. However, the rear doors on the trailer being used by the defendant on December 7, 2010, when he was stopped by Constable Tracey, were white in colour, and are shown on the photograph marked as Exhibit 16, and not red or brown. In reply to this argument, the Crown submits that witnesses do make errors and do have difficulty in recalling colours in stressful situations. Moreover, Gordon Rockett said he did not get more details of the tractor-trailer that ran over the pedestrian because he had been more concerned with the pedestrian than on the tractor-trailer at that critical time.
[278] In addition, although Jovan Ramirez made this error in his observation of the rear doors of the trailer, Ramirez did not recall any other details about the colour of the truck or trailer involved. Furthermore, the reliability of witness testimony is subject to their ability to recall, communicate, and observe events properly.
[279] However, as to the weight that should be placed on the Ramirez testimony about red or brown doors on the trailer involved in running over the pedestrian, it carries little persuasive value or weight when considered in light of the cumulative persuasiveness of other evidence, namely, the videotapes of the northbound tractor-trailers making right turns, which showed only one tractor-trailer, Northbound Tractor-Trailer #5, make that right turn before Northbound Tractor-Trailer #8 driven by Tarwinder Saran attempted the right turn and blocked the intersection; and Northbound Tractor-Trailer #5 as viewed on the surveillance videos does match the description given by Gordon Rockett and the experts that identified Northbound Tractor-Trailer #5 as a Freightliner Columbia, with fairings covering the gas tanks, the distinctive feature of dark-coloured front fenders on the cab; and the rectangular shape on the passenger side of the trailer that is visible on Northbound Tractor-Trailer #5 captured on the Magna International surveillance video that matches the shape of the "iwheels Logistics logo" on the trailer being used by the defendant on December 7, 2010, which is visible on the photographs marked Exhibit 14A and 14B; and the driver's logs for the defendant's tractor-trailer that show it had been near the intersection of Torbram Road and Walker Drive at the time the pedestrian had been run over; and the defendant's statement that he had driven through the intersection about the time of the pedestrian being run over.
[280] Therefore, the Ramirez testimony about the rear doors of the trailer being red or brown carries very little weight and does not create reasonable doubt about the defendant's tractor-trailer being involved in running over the pedestrian on December 1, 2010.
(o) Was the defendant operating the tractor-trailer that ran over Erica Carmichael?
[281] In sum, the Crown has proven beyond a reasonable doubt that the defendant was the person operating the white-coloured tractor-trailer that ran over the pedestrian on December 1, 2010 at 5:36:26 p.m., based on the following:
(i) The tractor-trailer that the defendant was driving on December 7, 2010, when stopped by Constable Tracey, matches the description of the tractor-trailer that Gordon Rockett saw run over the pedestrian on December 1, 2010, of being a white coloured transport truck with sleeper berth and pulling a 53-foot trailer also white in colour;
(ii) The time the 9-1-1 call had been received by the Peel Regional Police at 5:37:15 p.m. established the 30 second to one minute period of 5:36:15 p.m. to 5:36:45 p.m. that preceded the time of the 9-1-1 call for identifying on the surveillance videos which tractor-trailer that had made a right turn on Walker Driver had been the tractor-trailer that ran over the pedestrian; and this 30 second to one minute period was based on Gordon Rockett and Glen Pollock's testimony that they had called 9-1-1, 30 seconds to one minute after seeing the pedestrian being run over;
(iii) The period on the time-stamp corrected surveillance videos that captured the events occurring at the intersection of Torbram Road and Walker Drive on December 1, 2010, for the 30 second to one minute period prior to the time of the 9-1-1 call of 5:37:15 p.m., revealed only one tractor-trailer making the right turn at Walker Drive during that period, which had been identified as Northbound Tractor-Trailer #5;
(iv) The surveillance videos also show that vehicles at the intersection suddenly started slowing down or stopping shortly after Northbound Tractor-Trailer #5 completed the right turn onto Walker Drive, which is a strong indication that something had happened which caused the traffic to slow or stop;
(v) The surveillance videos show that Northbound Tractor-Trailer #5 was the last tractor-trailer that had turned right onto Walker Drive before Northbound Tractor-Trailer #8 driven by Tarwinder Saran attempted to make the right turn, but had to stop because of the pedestrian's body lying on the road, which makes Northbound Tractor-Trailer #5 the tractor-trailer that did run over the pedestrian;
(vi) Adrian Hamill and Steve Reynolds, the experts on makes of transport trucks, after being shown the surveillance videos and asked to identify the make of the transport truck known as Northbound Tractor-Trailer #5, both identified the transport truck as a Freightliner Columbia, white in colour with a sleeper berth, and pulling a 53-foot trailer that was white in colour. Reynolds also identified seeing distinctive features of dark-coloured wheel wells or fenders on the front of the cab and fairings covering the gas tank that were visible on the surveillance videos. These distinctive features visible on Northbound Tractor-Trailer #5 from the videos matches the distinctive features and colours of the tractor-trailer that the defendant was driving on December 7, 2010, when stopped by Constable Tracey, namely, fairings over the gas tanks, sleeper berth, white in colour, and brown-coloured fenders on the front cab, and the make of the truck is a 2004 Freightliner Columbia;
(vii) A rectangular-shaped logo on the passenger side of the trailer of Northbound Tractor-Trailer #5 is visible on the Magna International building surveillance video marked as Exhibit 34, which matches the rectangular shape of the "iwheels Logistics" logo that is located on the passenger side of the trailer of the tractor-trailer driven by the defendant when he was stopped by Constable Tracey on December 7, 2010, and visible in the photographs marked as Exhibit 14A and 14B
(viii) The defendant admitted to Constable Tracey that he is the sole driver of the transport truck he was driving on December 7, 2010, and that he uses the same trailer, and that he was driving the same tractor-trailer on December 1, 2010;
(ix) The defendant also admitted to Constable Tracey that he usually takes the same route back to the lot, which includes making a right turn onto Walker Drive from Torbram Road, and that he had made a right turn onto Walker Drive from Torbram Road on December 1, 2010, and that he recalled seeing the intersection being blocked by police cars with flashing lights about 6:00 p.m. when he had returned to the intersection on his way home;
(x) The driver's logs and GPS coordinates or satellite positions obtained from the tractor-trailer being driven by the defendant on December 1, 2010, establishes that the tractor-trailer had been at Steeles Avenue, just east of Dixie Road at 5:29:45 p.m. and that at 5:39:17 p.m. the defendant's tractor trailer had been at 20 Trojan Court, which confirms that the defendant's tractor-trailer would have been at the intersection of Torbram and Walker at about 5:36:26 p.m. when the pedestrian had been run over;
(xi) The time of 166 seconds between the pedestrian being run over at 5:36:26 p.m. and the defendant's tractor-trailer being at 20 Trojan Court at 5:39:17 p.m., is a reasonable amount of time for the defendant's vehicle to travel the distance of 1264 meters from the intersection of Torbram Road and Walker Drive to 20 Trojan Court.
(B) HAS THE CROWN PROVEN BEYOND A REASONABLE DOUBT THE ACTUS REUS OF THE OFFENCE?
[282] At first glance, it would seem that a transport truck which runs over a pedestrian in the crosswalk while in the midst of making a right turn, would be proof that the driver of that transport truck before making that right turn had failed to first see the movement could be made in safety.
[283] Ergo, if the evidence establishes that the pedestrian had been fully within the crosswalk and lawfully crossing Walker Drive or that the pedestrian was at the southeast curb about to step onto the crosswalk when the pedestrian would have been lawfully permitted to cross Walker Drive and enter onto the crosswalk before the defendant commenced the right turn, then either situations would be proof that the actus reus of the offence for s. 142(1) had been committed by the defendant, since the defendant would have been required under s. 144(7) of the Highway Traffic Act to stop his tractor-trailer and yield the right of way to a pedestrian in the crosswalk or a pedestrian about to step onto the crosswalk. In other words, if Erica Carmichael had been about to step from the curb onto the crosswalk or had been walking in the crosswalk before the defendant commenced making the right turn, then the defendant would have failed to first see that he could have made the right turn in safety before he made the right turn, since Erica Carmichael would have had the right-of-way. Then, unless the defendant can show that Erica Carmichael darted out or stepped out onto the crosswalk unexpectedly or provide a reasonable explanation why he did not see her in the crosswalk before the collision, the defendant would be convicted of the "right turn not in safety" offence.
(1) Was Erica Carmichael crossing Walker Drive within the pedestrian crosswalk when she was run over by the transport truck?
[284] Erica Carmichael's body had been found lying outside of the pedestrian crosswalk in the eastbound lane of Walker Drive. The centre point of her body was located 5 meters east of the crosswalk and 4 meters north of the southeast curb. Moreover, if she had been walking in the crosswalk how did her body end up outside the crosswalk?
[285] Although the centre point of her body was found lying outside the lines of the pedestrian crosswalk, Gordon Rockett testified that Erica Carmichael had been inside the crosswalk when she came into contact with the passenger side of the transport truck. In addition, Constable Wright, an expert on accident reconstruction and investigation, opined that the location of Erica Carmichael's body lying outside the lines of the pedestrian crosswalk are consistent with her being carried out or pushed or tumbling out of the crosswalk from her collision with the transport truck turning right onto Walker Drive.
[286] Moreover, Gordon Rockett said that Erica Carmichael had been walking in the crosswalk on Walker Drive near the east boundary line of the crosswalk when the contact between her and the passenger side of the middle of the cab of the tractor-trailer occurred, making it logical that the transport truck's momentum pushed or forced Erica Carmichael out of the crosswalk in an easterly direction.
[287] Thus, considering the weight and size of the transport truck that came into contact with Erica Carmichael, who is substantially lighter and smaller than the tractor-trailer, and the direction and movement of the transport truck making the right turn, Constable Wright's interpretation of what occurred and his opinion that Erica Carmichael had been pushed, bumped, or carried out of the crosswalk, and then tumbling before being run over by the rear wheels of the trailer is a reasonable and logical explanation for why Erica Carmichael's final resting place had been outside the crosswalk.
(2) Does the obligation to ensure the right turn can be made in safety an obligation for the entire right turn or only when commencing the turn?
[288] A question was also raised by the defence regarding the point at which the obligation to ensure that the right turn can be made in safety ends. In particular, does it end when the driver commences the turn or does it continue for the entire turn?
[289] The defence on this issue relies on the finding in R. v. Dillman, [2008] O.J. No. 1120 (QL), 68 M.V.R. (5th) 272 (O.C.J.), in which a fatality occurred and where a dump truck had been halfway into making a left turn at an intersection when a motorcycle travelling at a high rate of speed entered the intersection after coming over a rise and had collided with the dump truck making the left turn. It was held in that case by Duncan J., at para. 22, that the driver had taken reasonable care before turning and had been halfway into the turn, not beginning the turn, when the motorcycle first appeared in the intersection:
I do not know what more the Appellant could have done to make his turn in safety. It was argued before the trial judge that the defendant should have stopped when he first saw the motorcycle cresting the rise. But the admitted facts were that the defendant was halfway through the turn, not just beginning it, when the motorcycle first appeared. I do not think that stopping the turn at that point would have been wise or would have contributed to the safety of the situation.
[290] However, the Dillman scenario does not apply to the facts of the present case. A motorcycle travelling a high rate of speed and entering the intersection, after coming over a rise, had not have been visible until the vehicle had been halfway into making the left turn, while in the case at bar the pedestrian had been observed walking normally and did not run out or dart out unexpectedly into the crosswalk or had entered the crosswalk improperly. Moreover, the defendant's tractor-trailer was seen or described as making a normal turn, at a relatively slow speed of about 10 k.p.h., so that the defendant would have had enough time to recognize and see the pedestrian near or about to step onto the crosswalk or on the crosswalk in the southeast corner of the intersection before he commenced making his right turn.
[291] Furthermore, a left-turn manoeuvre by a vehicle at an intersection is a manoeuvre much different for a motorist to make in comparison to a making right turn at an intersection, since a left turn may require crossing one, two, or three lanes of traffic, which are moving in the opposite direction, so that being halfway in a left turn may not necessarily be an unsafe manoeuvre when oncoming traffic is not visible when the left turn is first commenced until the vehicle making the left turn moves into the path of oncoming traffic that suddenly appears from any one of the oncoming lanes of traffic. As a consequence, the assessment of risk for making the left turn may relate to later portions of the left-turn manoeuvre, while a right-turn manoeuvre does not involve going across several lanes of oncoming traffic before completing the right turn, so the assessment of the right turn may require the assessment of potential risk or danger much earlier. Therefore, the assessment of potential danger or risk in regards to making a safe turn may have to be undertaken at an earlier stage for a right turn than for a left-turn manoeuvre because of the nature of the driving manoeuvre itself. However, the assessment of risk for each case will still have to be assessed or evaluated in respect to its own circumstances.
[292] On the other hand, the Crown argues that the obligation on a motorist set out in s. 142(1) is a continuous obligation and applies throughout the entirety of the right-turn manoeuvre. Although all motorists have an obligation to drive prudently and with reasonable care at all times in respect to other drivers, vehicles, motorcyclists, or pedestrians, who use or share the road, and to obey the rules of the road for purposes of public safety and to avoid causing harm, it was held in R. v. Dillman, at para. 19, that holding an accused to that standard of care set out in s. 142(1) for the whole turn may in effect transform the "turn not in safety" offence into an absolute liability offence:
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 rules 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.
[293] Consequently, as the essence of the "right turn not in safety" offence is more concerned with safety at the commencement of the right turn, then the basis of the risk assessment is at the pre-turn stage, and any unforeseeable or sudden events that occur during the duration of a turn, such as occurred in the Dillman scenario may provide a motorist with a reasonable care defence, but each event in consideration requires a case by case assessment where the circumstances of each individual case are properly considered and assessed. As such, the particular stage or amount of the turn having been completed before the intervening event occurs is but one factor to consider, and is not a fast and hard rule for finding or not finding reasonable care.
(3) Has the Crown proven that the defendant committed the actus reus of the offence in s. 142(1) beyond a reasonable doubt?
[294] From the evidence, I find that the Crown has proven beyond a reasonable doubt that the defendant had failed to first see that the right turn could be made in safety before making the right turn, since the evidence establishes that the pedestrian would have been either at the curb at the southeast corner of the intersection or had taken one or two steps onto the pedestrian crosswalk when the defendant's tractor-trailer turned right onto Walker Drive; and that the pedestrian had been seen walking normally and had not ran out suddenly or unexpectedly onto the crosswalk or had entered the crosswalk improperly, so as to make it impractical for the defendant to stop the tractor-trailer he was operating; and the pedestrian could be seen clearly by others at the intersection, even though the defendant had been wearing dark clothing; and the defendant did not stop the tractor-trailer he was driving and yield to the pedestrian when he ought to have seen the pedestrian at the southeast corner, especially since there were no obstructions hindering the defendant's view and the defendant's tractor-trailer had been seen travelling at a normal or relatively slow speed before commencing the right turn.
[295] Moreover, the passenger side of the cab portion of the tractor-trailer had come into contact with the pedestrian when the pedestrian had been about 10 feet north of the curb in the crosswalk, which would infer that the pedestrian had already been in the crosswalk or just about to step off the curb when the defendant's transport truck had begun to make its right turn. And, considering that the pedestrian would have been in the crosswalk near the curb or at the curb about to step onto the crosswalk, when taking into account the point of impact had been about 10 feet from the curb, the pedestrian should have been visible at the southeast corner of the intersection before the defendant made the right turn. Therefore, since the defendant's tractor-trailer struck Erica Carmichael while she was walking within the crosswalk means the Crown has proven that the defendant has committed the actus reus of the offence beyond a reasonable doubt.
(C) HAS THE DEFENDANT ESTABLISHED THE DEFENCE OF DUE DILIGENCE ON A BALANCE OF PROBABILITIES?
[296] Since the Crown has met its burden in proving the defendant committed the actus reus of the s. 142(1) offence beyond a reasonable doubt, then the defendant in the second stage of the inquiry has the burden to prove on a balance of probabilities that he has made out the due diligence defence or that he was not negligent or at fault in committing the prohibited act. To make out the defence of due diligence as outlined by the Supreme Court of Canada in R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.), requires that the defendant prove on a balance of probabilities that he had taken all reasonable steps in the circumstances to first see that he could make the right turn in safety before making the turn or that he had been operating under a mistaken set of facts, if true, would render his act innocent:
there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. …
(1) Relevant Circumstances Or Factors To Consider
(a) The pedestrian's actions prior to the contact with the transport truck
[297] In R. v. Davis, [1996] N.S.J. No. 60 (N.S.C.A.), at para. 26, the Nova Scotia Court of Appeal held there are situations where a motorist that had failed to yield to a pedestrian had a defence if the motorist is able to show the act was committed through no fault of the motorist, such as the pedestrian suddenly running out into the crosswalk or under circumstances where the event could not reasonably be foreseen:
There are, undoubtedly, many situations where it could be said that failure to yield the right-of-way to a pedestrian in a marked crosswalk was as a result of no fault on the part of the driver. For example, it could be that, notwithstanding careful and prudent driving, the respondent was forced into a situation of failing to yield to the pedestrians through no fault of her own; such as the negligence of another driver. It could be that the pedestrians ran out into the crosswalk, suddenly, or under circumstances where that event could not reasonably be foreseen. There might have been an unforeseen mechanical failure to her vehicle.
[298] However, there is no evidence that Erica Carmichael had improperly entered onto Walker Drive before she was run over, nor evidence that she had suddenly walked or ran out or had entered the crosswalk on a red light or when the pedestrian light permitting her to cross Walker Drive was not on. Furthermore, since she had walked from the intersection of Torbram Road and Steeles Avenue when she got off the bus on Steeles Avenue, she would not have likely come from the eastside of Walker Drive, but from walking northbound on the sidewalk located on the eastside of Torbram Road.
[299] And, in regards to the evidence pointing to some fault on the pedestrian, Gordon Rockett said he observed the pedestrian looking down when she stepped onto the crosswalk, although Glen Pollock said she seemed to be looking straight ahead. The pedestrian had also been observed wearing a hood covering her head. Then again, even if Erica Carmichael had not been careful or paying attention to her surroundings when she stepped onto the crosswalk, there is no evidence that the pedestrian had entered onto the crosswalk improperly or when she had not been legally permitted to cross Walker Drive, which means that approaching motorists still had to yield the right-of-way to her or stop so that she could cross Walker Drive within the crosswalk.
[300] Moreover, although Erica Carmichael may have been looking down when walking and the hood on her head may have limited her peripheral vision, so she would not have seen the defendant's tractor-trailer turning into her, the defendant still had the duty to ensure there were no pedestrians near the southeast curb or crosswalk or in the crosswalk before he commenced making the right turn, since the harm that could result from a collision between a large transport truck and a pedestrian would have dire consequences.
(b) Traffic lights were functioning
[301] In their admissions of fact, the defence admitted that the traffic and pedestrian lights had been functioning properly at the critical time. Moreover, there is no evidence that the lights were not functioning properly. The surveillance videos also show the traffic lights changing colour. In addition, the Traffic Signal Timing Chart in Exhibit 1 sets out the length of the phases in seconds for different directions for one cycle and the duration of the pedestrian lights for different phases during one cycle for the intersection at Torbram Road and Walker Drive:
Exhibit 1
As per your request the signal timing for the intersection of Torbram Road at East Drive/Walker Drive are as follows:
Torbram Road at East Drive/Walker Drive
| PHASE DIRECTION | DAY | Peak Period | Time Period | Phase 2 NB | Phase 4 WB | Phase 5 NBLT | Phase 6 SB | Phase 7 WBLT | Phase 8 EB | Cycle Length | Offset |
|---|---|---|---|---|---|---|---|---|---|---|---|
| Sunday | FREE | 0000-2400 | 62 | 21 | 13 | 62 | 13 | 21 | 109 | 0 | |
| Weekday | FREE | 0000-0600 | 62 | 21 | 13 | 62 | 13 | 21 | 109 | 0 | |
| Weekday | AM Peak | 0600-0900 | 58 | 47 | 12 | 46 | 12 | 35 | 105 | 82 | |
| Weekday | Off Peak | 0900-1500 | 58 | 47 | 12 | 46 | 12 | 35 | 105 | 80 | |
| Weekday | PM Peak | 1500-1900 | 56 | 49 | 12 | 44 | 14 | 35 | 105 | 40 | |
| Weekday | FREE | 1900-2400 | 62 | 21 | 13 | 62 | 13 | 21 | 109 | 0 | |
| Saturday | FREE | 0000-2400 | 62 | 21 | 13 | 62 | 13 | 21 | 109 | 0 |
NOTE 1: 6 seconds clearance (4 seconds Amber & 2 seconds All Red) for Phases 2, 4, 6 & 8
NOTE 2: 3 seconds clearance (3 seconds Amber for Phases 5 & 7
NOTE 3: 8 seconds walk and 15 seconds don't walk for phases 2 & 6
NOTE 4: 8 seconds walk and 20 seconds don't walk for phases 4 & 8
(c) Is there an advanced-green light for left-turns for traffic southbound on Torbram Road to eastbound Walker Drive?
[302] The Traffic Signal Timing Chart marked as Exhibit 1 does not indicate that there is a specific advanced-green light phase for southbound traffic on Torbram Road making a left turn to go eastbound on Walker Drive. In addition, this chart only indicates that there is an advanced-green left turn for northbound and westbound traffic at the intersection.
(d) Green light for northbound traffic on Torbram Road
[303] The evidence shows that there had been a green light for northbound traffic on Torbram Road and that the defendant had made his right run during that green light phase. In addition, based on the Time-Line Chart that Constable Wright prepared, which is marked as Exhibit 26, the traffic light for northbound traffic on Torbram Road had turned green at 5:35:40 p.m. The defendant in the same Time-Line Chart was determined by Constable Wright to have been in the right turn or making the right turn at 5:36:26 when the pedestrian had been run over. Furthermore, the Traffic Signal Timing Chart in Exhibit 1 indicates that the phase for northbound traffic during the peak period from 3:00 p.m. to 7:00 p.m. for a weekday is set for 56 seconds, which consists of an advanced-green light for left turns that lasts 12 seconds, a yellow or amber light that lasts for 4 seconds and an all-red that lasts for 2 seconds. Moreover, December 1, 2010, was a Wednesday.
[304] In addition, as there does not appear to be a phase set specifically for an advanced-green light for left turns for southbound Torbram Road, which would infer that the green light for the northbound lanes for Torbram Road would turn green at the same time the advanced-green light for the northbound left turn comes on, since there would not be southbound traffic making left turns in front of the northbound traffic.
[305] Therefore, of the 56 seconds for the northbound phase, the green light would be on for 50 seconds. And, since the northbound green light came on at 5:35:40 p.m., the defendant's tractor-trailer would have been approaching the right turn near the latter part of the green light phase.
[306] Moreover, it is normal for intersections with advanced-left turns, that the vehicles making the left turns are allowed to proceed when their light changes to an advanced-green light before vehicles on the opposite side intending to proceed straight through the intersection are permitted to proceed into the intersection. In addition, the vehicles positioned opposite to the advanced-left turn vehicles and waiting to go straight would still have a red light.
[307] Furthermore, as provided for by s. 144(19) of the Highway Traffic Act, for vehicles facing a red light and intending to turn right, they are permitted to make the right turn on a red light after they have stopped and have ensured it is safe to proceed:
Exception – turn
144(19) Despite subsection (18) and subject to subsection (14), a driver, after stopping his or her vehicle and yielding the right of way to traffic lawfully approaching so closely that to proceed would constitute an immediate hazard, may,
(a) turn to the right; or
(b) turn to the left from a one-way street into a one-way street,
without a green indication being shown.
(e) Duration of pedestrian "walk" signal for Erica Carmichael
[308] From the Traffic Signal Timing Chart (Exhibit 1), the pedestrian signal for the northbound phase when the defendant's tractor-trailer was proceeding on a green light is set as an 8-second "walk" and 15-second "don't' walk".
[309] Therefore, Erica Carmichael would have had 8 seconds to lawfully enter the pedestrian crosswalk, and if she had entered onto Walker Drive lawfully, then she would have had the right-of-way over the defendant's transport truck under s. 144(28) of the Highway Traffic Act, even if the pedestrian "walk" indication had changed to the "don't walk" indication while she was still in the crosswalk.
[310] However, there is no evidence at what point the pedestrian "walk" signal comes on during the northbound phase of the traffic signal cycle. On the other hand, there is also no evidence from any of the witnesses at the intersection that the pedestrian had entered the crosswalk on a "don't walk" signal or had entered onto the crosswalk improperly or when she was not permitted to cross Walker Drive.
[311] As the evidence does not show that Erica Carmichael had stepped onto the crosswalk against the pedestrian signal or when she was not permitted to do so, then the pedestrian signal is not a circumstance that supports the defendant's due diligence defence.
(f) Speed of defendant's transport truck when making the right turn
[312] The evidence from the witnesses at the intersection and from the videotapes show the defendant's tractor-trailer making a normal right turn and at a relatively slow speed, estimated at 10 k.p.h. Constable Wright, the accident reconstructionist, also estimated that the right turn took a minimum 5 to 7 seconds to complete.
[313] Hence, because of the slow movement of the defendant's tractor-trailer in approaching the intersection and making the right turn, which took 5 to 7 seconds to complete, the defendant would have had ample time to see Erica Carmichael near the southeast curb before she stepped onto the crosswalk or while she had been in the crosswalk. In addition, she had not been observed running or suddenly stepping out onto the crosswalk, but had been observed walking normally.
(g) Weather conditions
[314] The weather was not a factor. The roads were dry and it was not raining or snowing at 5:36:26 p.m. when Erica Carmichael was run over. However, it had been cold with the temperature being about -1 degrees Celsius, in which Erica Carmichael was observed wearing the hood of her jacket over her head, which may have caused her not to see the transport truck to her left as she stepped onto the crosswalk or walked in the crosswalk.
(h) Lighting conditions at the intersection
[315] Erica Carmichael had been run over at 5:36:26 on Wednesday, December 1, 2010. At that time of the day it was dark, but the intersection had been well illuminated by streetlights. Moreover, witnesses at the intersection were able to clearly see her at the southeast corner, despite the dark clothing she had been wearing. In addition, the defendant told Constable Tracey that the intersection had lots of light when he made the right turn on December 1, 2010.
[316] Therefore, the lighting conditions at the intersection of Torbram Road and Walker Drive would not have prevented the defendant from seeing Erica Carmichael at the southeast corner of the intersection. Furthermore, the defendant ought to have seen her in these lighting conditions, even when she had been wearing dark clothing, as there were no obstructions between the bus shelter and the southeast curb for a driver going northbound looking at the southeast corner before making the right turn. There was also enough distance from the bus shelter to the southeast curb for a tractor-trailer travelling at a slow speed for the defendant to look at the southeast corner for any pedestrians or potential danger before commencing the right turn.
(i) Conditions of road surface
[317] The road surface was dry and paved, and was not a factor that may have caused Erica Carmichael to slip underneath the trailer or to prevent the defendant's tractor-trailer from stopping before it came into contact with her.
(j) Traffic conditions
[318] At the time of the collision, the traffic was heavy because of the evening rush hour, but was not a factor in the collision or that it would have prevented the defendant from seeing the pedestrian at the southeast corner of the intersection. The heavy traffic, on the other hand, would have caused the defendant to drive slower.
[319] The defendant also informed Constable Tracey that he would not be able to make the right turn unless he had a green light because of the heavy traffic.
(k) Type of turn made by the tractor-trailer
[320] In addition, from the surveillance videos and from the witnesses at the intersection, the right turn made by the defendant's tractor-trailer was normal and at a relatively slow speed, estimated to be at 10 k.p.h. However, because of the length of the 53-foot trailer being pulled, then in order to properly make a right turn without having the trailer's tires go over the curb at the southeast corner, the defendant would have had to proceed further north or forward into the intersection before the tractor could begin making the right turn because of the different arcs of the tractor and trailer.
[321] Moreover, the videotapes show the tractor-trailer driven by the defendant did not stop before making the right turn or during the right turn.
(l) Nature of intersection
[322] The intersection at Torbram Road and Walker Drive is a busy intersection and is also controlled by automatic traffic and pedestrian signal lights, with designated left-turn lanes and advanced-green lights. It is also a flat area.
[323] In addition, the eastbound lane for Walker Drive is wider than a normal lane but not as wide as two lanes. Also, there is a right-turn lane for northbound traffic on Torbram Drive.
[324] Furthermore, the intersection is located in an industrial area where there are many warehouses situated close by and where there would be many tractor-trailers going through the intersection during the day and after work.
[325] There are also pedestrian crosswalks marked on all four sides of the intersection to allow pedestrians to cross safely at set intervals.
[326] However, the design of the intersection did not cause or hinder the defendant's ability to see the pedestrian at the southeast corner of the intersection.
(m) The bus shelter on the eastside of Torbram Road
[327] There is a bus shelter located on the eastside of Torbram Road south of Walker Drive. Constable Wright said that it is constructed of glass panels and that only one side had an advertisement. The photograph marked Exhibit 8A shows the advertisement on the north face of the shelter. It is also situated about 30 feet south of Walker Drive (see Exhibit 10) and at the "normal" and relatively slow speed in which the defendant's transport truck was travelling northbound on Torbram Road, there would have been sufficient time and space for the defendant to view the southeast curb to see if there were any pedestrians in the area or for any potential risk.
(n) Vehicles stopped in westbound left-turn lane on Walker Drive waiting to go southbound onto Torbram Road.
[328] Since the transport truck driven by the defendant had a sleeper berth and had been pulling a 53-foot trailer, it would require some room for it to make the right turn onto Walker Drive, if the defendant did not want the wheels of the trailer to drive over the southeast curb of the intersection. In addition, there were at least two vehicles stopped in the westbound left turn on Walker Drive, which would have made the defendant's right turn more difficult, since the defendant would have to make sure the front end of the tractor would not turn into the westbound left-turn lane where the two vehicles were stopped. Moreover, despite the extra-wide eastbound lane on Walker Drive the presence of the two vehicles in the westbound left-turn lane would have confined the right turn for the defendant's tractor-trailer and would have necessitated him keeping the tractor-trailer inside the eastbound lane during the right turn.
[329] Therefore, although the eastbound lane on Walker Drive is wider than one lane and appears to be constructed for tractor-trailers to make right turns, the presence of the stopped vehicles in the westbound dedicated left-turn lane on Walker Drive may have caused the defendant to concentrate more on not hitting those vehicles while commencing or continuing with his right turn, than on noticing the pedestrian in the crosswalk or at the southeast corner.
(o) No obstructions to defendant's view of the southeast corner of the intersection
[330] There were no visible obstructions that would have prevented the defendant from clearly seeing if there was a pedestrian in the pedestrian crosswalk or that a pedestrian had been on the southeast curb about to walk onto the crosswalk prior to the defendant commencing the right turn.
[331] In addition, the nearest object to the southeast corner that would have any bearing on the defendant's view is one traffic light pole located west of the eastside sidewalk for Torbram Road, but it is located just north of the bus shelter, which is about 30 feet south of the southeast curb.
(p) The pedestrian was wearing dark-coloured clothing
[332] Erica Carmichael had been wearing dark-coloured clothing when she had been run over by the transport truck. However, Gordon Rockett, Joven Ramirez, and Glen Pollock, all said they had no difficulty seeing the pedestrian and that they could see the pedestrian clearly at the southeast corner of the intersection. Furthermore, this is not a rural or country road, but a developed intersection controlled by automatic traffic lights and illuminated by artificial lighting that were on at the time the pedestrian had been run over. In addition, the defendant in his statement to Constable Tracey said the intersection was well lit. As such, the dark clothing on the pedestrian would have not made her fully indiscernible to a motorist turning right onto Walker Drive.
(q) The pedestrian was within the crosswalk when she came into contact with the transport truck
[333] Joven Ramirez, who was a front-seat passenger in a van that was stopped first in line in the westbound left-turn lane on Walker Drive had a clear view of the southeast corner, and from his vantage point, Ramirez said he saw the pedestrian walk one or two steps into the pedestrian crosswalk before the tractor-trailer began to turn right; while Gordon Rockett, who was sitting in his vehicle directly behind the Ramirez vehicle said he was close to where the point of impact occurred in the crosswalk between the defendant's tractor-trailer and Erica Carmichael and said pedestrian had been no more than 10 feet from the curb at the point of impact.
(r) Obligation of motorists to yield to pedestrians within crosswalks
[334] Furthermore, s. 144(28) of the Highway Traffic Act provides that where a pedestrian lawfully enters a pedestrian crosswalk, vehicles must still yield the right of way to the pedestrian in the crosswalk or stop, even though the pedestrian signal has changed to a "don't walk" signal:
Pedestrian right of way
144(28) Every pedestrian who lawfully enters a roadway in order to cross may continue the crossing as quickly as reasonably possible despite a change in the indication he or she is facing and, for purposes of the crossing, has the right of way over vehicles.
[335] Furthermore, in Flynn v. Saunders, [1947] O.J. No. 127 (QL) (O.H.C.), at paras. 10-12, Barlow J. acknowledged that a pedestrian, who has already and properly entered a crosswalk could assume that a motorist driving up to the crossing would reduce their speed or stop. It was further held in that case that the motorist had also failed to give a warning of their approach to the pedestrian by using their horn:
The law applicable to the facts as I find them is quite clear. See O'Connor's Highway Traffic Act, 4th Ed. p. 164, as follows:
"Once a pedestrian has, without negligence, got into vehicular traffic at an intersection and has begun to cross, he must be allowed to complete the crossing in safety. It is only when the pedestrian observes approaching traffic at the time when he ventures to cross that he is bound to exercise care by keeping that traffic in sight. The plaintiff has the right to assume that anyone who might drive up to the crossing he has already entered, would reduce his speed or stop."
This statement of the law is supported by the decision in Alter v. Soloway, (1931), 66 O.L.R, 610. See also The Highway Traffic Act, s. 39(2) (e) as follows:
"(e) When under the provisions of this section the driver or operator of a vehicle or car of an electric railway is permitted to proceed across an intersection or to turn left or right, such permission shall be subject always to the safety of pedestrians and other traffic."
The evidence clearly establishes that the plaintiff was in the act of crossing when the defendant approached the intersection. He did not reduce his speed or stop. He gave no warning of his approach. See Highway Traffic Act, s. 15(3), as follows:
"(3) Alarm bell to be sounded, Every motor vehicle, bicycle and tricycle shall be equipped with an alarm bell, gong or horn, and the same shall be kept in good working order and sounded whenever it shall be reasonably necessary to notify pedestrians or others of its approach."
(s) Did the defendant have to yield the right-of-way to the pedestrian?
[336] Based on the point of impact being about 10 feet from the southeast curb as observed by Gordon Rockett, the pedestrian would have been noticeably into the crosswalk of Walker Drive and had not just simply stepped off the curb when contact with the defendant's tractor-trailer had been made or the point of impact would have been considerably closer to the curb. The distance of 10 feet would be several steps into the crosswalk.
[337] Ergo, based on Erica Carmichael being in the crosswalk or about to step onto the crosswalk before the defendant commenced making the right turn, then the defendant had to yield the right-of-way to her or stop before proceeding with that right turn.
(t) The defendant's statement to Constable Tracey that it was impossible that he struck the pedestrian and that he had taken so much precaution
[338] The defendant told Constable Tracey that it was impossible that it had been the transport truck that he had been driving on December 1, 2010, that had struck and ran over the pedestrian, since he did not recall seeing anything at the intersection when he made the right turn onto Walker Drive and because he had been driving so slowly and had taken so many precautions, such as checking mirrors.
[339] Unfortunately, the defendant did not take all necessary precautions, since he did not see the pedestrian who was at the southeast corner, either on the crosswalk or near the curb about to step onto the crosswalk when the defendant commenced his right turn. In addition, there had been no obstructions of his view of the southeast corner from the bus shelter to the southeast curb, so the pedestrian ought to have been seen by the defendant even with the dark clothing she had been wearing, as the intersection had been illuminated by streetlights and the defendant said there was so much light there and witnesses at the intersection had no difficulty seeing the pedestrian at the southeast corner.
(2) The Defendant Ought To Have Seen The Pedestrian At The Southeast Corner Of The Intersection
[340] For the circumstances, is it reasonable that the defendant ought to have seen Erica Carmichael at the southeast corner of the intersection or in the pedestrian crosswalk prior to him commencing the right turn?
[341] Although on December 1, 2010, at 5:36:26 p.m., it was dark, the intersection was illuminated by streetlights and as the defendant told Constable Tracey, the intersection was well lit. Therefore, based on the intersection being well illuminated by streetlights and the three witnesses at the intersection being able to see the pedestrian clearly at the southeast corner despite the dark clothing she had been wearing, then the defendant ought to have seen the pedestrian at the southeast corner as well.
[342] And, despite the defendant telling Constable Tracey that he did not observe anything at the corner and that there is usually no one standing at the corner at the time he turned right, but 30 minutes or 45 minutes earlier there would be people waiting at the bus stop, his erroneous assumption may have caused the defendant to let his guard down and not be on the lookout for potential danger or pedestrians being present at the southeast corner before he commenced his right turn
[343] Accordingly, I find that the defendant had failed to properly look for pedestrians at the most crucial time when the defendant was commencing his right turn. He failed to see Erica Carmichael at the southeast curb about to step onto the crosswalk or that she had already been one or two steps onto the crosswalk before he commenced his right turn onto Walker Drive. He ought to have seen her there because the intersection was illuminated by streetlights and it is developed area and not a rural area and that she had been walking normally and had not suddenly ran out or crossed improperly onto Walker Drive.
(3) Foreseeability Of Presence Of Pedestrian
[344] The foreseeability of an event is also a factor to consider in determining whether the defendant has made out the defence of due diligence. Although the defendant told Constable Tracey he did not observe anything at the corner and there would be no one usually standing at the corner when the defendant made the right turn, the area surrounding the intersection is nevertheless an industrial area in which there is a bus shelter located south of the intersection on the east side of Torbram Road in which people can get on and off a bus, and as there are also pedestrian signal lights and pedestrian crosswalks lines painted on all sides of the intersection, then it is reasonable for a motorist to expect or foresee that there could be pedestrians crossing Walker Drive at any time of the day or evening.
(4) Credibility Of Witnesses
[345] I make no adverse findings about the credibility of any witness who testified in this proceeding.
(5) Mistake Of Fact
[346] The defendant in his statement to Constable Tracey said the intersection was well lit and that he did not see anything. He also said that at the time he made the right turn no one would be standing at the southeast corner, but there would have been people waiting at the bus stop 30 minutes to 45 minutes earlier. However, even if the defendant believed no one is usually standing there at the time he made the right turn, he still had to make certain he could make his right turn safely. However, he did not, and the passenger side of his cab or transport truck came into contact with Erica Carmichael about 10 feet north of the curb in the crosswalk during his right turn. And from witness accounts of seeing her at the southeast corner, Erica Carmichael had not been running nor had she suddenly darted out into the crosswalk or had she stepped or entered onto the crosswalk unlawfully. Furthermore, this collision would not have happened if the defendant had made sure there were no pedestrians or potential danger at the southeast corner before he made the right turn.
[347] Thus, the defendant's assumption that no one would be usually standing at the southeast corner at the time he had made his right turn is not a reasonable assumption, since a pedestrian could be at that corner at any time because of the bus stop located nearby, the intersection being an industrial area in which people would be employed, and there being pedestrian crosswalks marked on all four sides of the intersection for pedestrians to use.
[348] As such, the defendant's past experience or knowledge that there is usually no one there at that time of the day could have made the defendant less vigilant in looking for pedestrians at the southeast corner of the intersection at the time in question. Therefore, his erroneous assumption about no one usually standing at the southeast corner at the time in question was not reasonable, considering the nature of the intersection. His mistaken belief would therefore not make his act innocent nor would it exonerate him for committing the wrongful act set out in s. 142(1).
(6) Has The Defendant Proven The Defence Of Due Diligence On A Balance Of Probabilities?
[349] In the circumstances, the defendant has not proven on a balance of probabilities there had been due diligence on his part. He had not taken all reasonable steps for the circumstances to see that his right turn could be made in safety before he made the right turn nor does his belief that no one would be standing at the southeast corner at that time of the day when he made his right turn a reasonable assumption.
[350] Moreover, the evidence does not indicate that the defendant's tractor-trailer had already been halfway into the right turn before Erica Carmichael stepped suddenly or improperly onto the crosswalk; rather it indicates she was either one or two steps into the crosswalk or had stepped onto the crosswalk at the same time the tractor-trailer driven by the defendant started making the right turn. Furthermore, because the point of impact between the tractor-trailer and Erica Carmichael occurred in the crosswalk about 10 feet from the curb, then realistically she had already been in the crosswalk before the defendant's truck had commenced the right turn.
[351] Furthermore, based on the normal and relatively slow speed of the defendant's tractor-trailer before it made the right turn; and that Erica Carmichael had been walking normally and had not entered the crosswalk suddenly or improperly; and that there had been no obstructions, weather conditions, or lighting conditions to prevent the defendant from seeing her at the southeast corner, then the defendant ought to have seen her at the corner or in the crosswalk.
[352] Therefore, even though the defendant told Constable Tracey that he observed nothing when he made his right turn, and despite it being dark at 5:36:26 p.m. and that Erica Carmichael had been wearing dark clothing, the intersection nevertheless had been well illuminated by street lights and the fact that other people at the intersection had been able to clearly see her at the southeast corner shows the defendant had been negligent in making the right turn and in not seeing Erica Carmichael in the crosswalk or at the southeast corner of the intersection, before the defendant's tractor-trailer ran over her.
[353] And, while Erica Carmichael may have been looking down when walking and had been wearing the hood of her jacket over her head when entering the crosswalk, which consequently could have prevented her seeing the truck turning into her path, Erica Carmichael's action of looking down or not being aware of her surroundings does not exonerate the defendant or relieve the defendant's responsibility to carefully look for pedestrians in the crosswalk, or to look for pedestrians about to enter a crosswalk, or to actually recognize and see pedestrians within a crosswalk, before he proceeded to make the right turn. Since a pedestrian is no match for a large mass of moving steel, then the failure of the defendant to take all reasonable care to make certain it had been safe to turn right before doing so has led to Erica Carmichael's untimely death.
[354] Moreover, this tragedy could have been avoided if the defendant had made certain there were no pedestrians or potential danger at the southeast corner before he commenced to make the right turn onto Walker Drive. He had failed to do so and his negligent and wrongful act resulted in Erica Carmichael being run over by the tractor-trailer he was operating.
[355] So alas, sometimes bad things happen to good people.
7. DISPOSITION
[356] Therefore, based on the totality of the evidence, on the evidence which I accept, and for the above reasons, I find that the Crown has proven beyond a reasonable doubt that the defendant, Dhan Singh Gill, has committed the offence of "right turn not in safety", contrary to s. 142(1) of the Highway Traffic Act, R.S.O 1990, c. H.8. A conviction will accordingly be entered against Dhan Singh Gill.
Dated at the City of Brampton on July 16, 2012.
QUON J.P.
Ontario Court of Justice