Court File and Parties

In the Matter of The Highway Traffic Act, R.S.O. 1990, c. H.8

Between Her Majesty The Queen prosecutor

and

Benito Scetto defendant

Ontario Court of Justice Brampton, Ontario

Before: Quon J.P.

Reasons for Judgment

Charge: s. 144(18) H.T.A. – "red light – fail to stop"

Trial held: October 31, November 1, 2012, and March 1, 2013

Judgment released: May 3, 2013

Counsel:

B. Moodie, assistant Crown attorney
J. Bonin, legal representative for the defendant

Cases Considered or Referred To

Statutes, Regulations and Rules Cited

Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 1(1), 144, 144(1), 144(5)(a), 144(15), 144(18), 144(31.2)

Reference Material Cited

Paciocco, D.M. and Stuesser, L. The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011), pp. 32 and 33.

Exhibits Entered

Exhibit "1" - Aerial photograph of the intersection of Bristol Road West and Hurontario Road, Mississauga, taken in Spring 2009, marked by Crown witness Anthony Franceschi with a red "X" indicating his school location, initials "A.F." at the northeast corner indicating where he was crossing, an arrow in the northside pedestrian crosswalk showing westbound direction, initials "E.G." in blue indicating Erwin Gadong's position at the northwest corner, and a blue arrow showing eastbound direction of Gadong's travel on November 24, 2010 (1 page).

Exhibit "2" - Aerial photograph of the intersection marked by Crown witness Natalie Iannello with a large red "X" in circle indicating her school location, initials "N.I." at the southeast corner indicating where she was crossing, an arrow in the southside pedestrian crosswalk showing westbound direction, and a small red "x" in the northside pedestrian crosswalk indicating where she observed Erwin Gadong lying on the roadway on November 24, 2010 (1 page).

Exhibit "3" - Aerial photograph of the intersection marked by Crown witness Karissa Persaud with a red "X" indicating her school location, initials "K.P." at the southeast corner indicating where she was crossing, an arrow in the southside pedestrian crosswalk showing westbound direction, and a small "x" south of the northside pedestrian crosswalk indicating where she observed Erwin Gadong lying on the roadway on November 24, 2010 (1 page).

Exhibit "4" - Aerial photograph of the intersection marked by Crown witness Dino DiBernardo with a red "X" indicating his daughter's school location, initials "D.D." in the designated left-turn lane on Bristol Road on the eastside of Hurontario Street indicating where his motor vehicle had been stopped facing westbound, and an arc with arrow representing his intended left turn and direction of travel on November 24, 2010 (1 page).

Exhibit "5" - Aerial photograph of the intersection marked by Crown witness Erwin Gadong with a blue "X" indicating his school location, initials "E.G." at the northwest curb indicating where he was waiting to cross on his bicycle, and an arrow in the northside pedestrian crosswalk showing eastbound direction of his attempted bicycle crossing on November 24, 2010 (1 page).

Exhibit "6" - Aerial photograph of the intersection marked by Crown witness Elias Hanna with a long "X" in the southbound curb lane of Hurontario Street just north of the intersection indicating where the transit bus he was driving had been stopped, and a small "x" indicating where he observed the boy waiting at the northwest corner on his bicycle on November 24, 2010 (1 page).

Exhibit "7" - Aerial photograph of the intersection marked by defence witness Joanne Ong with a red "X" indicating her son's school location, initials "J.O." at the beginning of the designated left-turn lane south of the southside pedestrian crosswalk indicating where she was driving northbound, a small "X" in the northside pedestrian crosswalk indicating where she observed the bicyclist, an oval-shaped object indicating where she observed the white car, an "x" within a rectangle indicating where she first observed the pickup truck in the southbound curb lane behind the bus and white car, and a large "X" south of the northside pedestrian crosswalk indicating where she believes the intersection began for southbound traffic on November 24, 2010 (1 page).

Exhibit "8" - Hand-drawn sketch made by the defendant's legal representative in which defence witness Edwin Bonilla drew a line and an "x" on the line to represent where Bonilla believes is the beginning of the intersection for southbound traffic on Hurontario Street (1 page).

Exhibit "9" - Attempted and incomplete hand-drawn sketch made by defence witness Edwin Bonilla showing a solid line connecting the north curb of the intersection as where Bonilla thought the intersection began for southbound traffic on Hurontario Street (1 page).

Exhibit "10" - One page containing two photographs of the defendant's black pickup truck (F250 4x4) pulling a trailer containing a lawnmower. Top photograph shows the defendant's truck with the salter in the rear bed. Bottom photograph shows the front of the passenger-side of the truck and front windshield with trailer visible behind, with the defendant drawing an arrow indicating where Edwin Bonilla had been seated in the rear seat (1 page).

1. INTRODUCTION

[1] Like many high school students of his generation, Erwin Gadong dreams of going to university or college, starting a career, and possibly getting married. However, at 7:52 a.m. on November 24, 2010, his future and personal aspirations may have been abruptly changed by the driver of a pickup truck, who is alleged to have run a red light and struck Gadong at the intersection of Bristol Road and Hurontario Street, in the City of Mississauga. When Gadong and the pickup truck collided, Gadong had been inside the pedestrian crosswalk while trying to ride a bicycle across Hurontario Street, after he had supposedly received a "walk" signal that would have lawfully permitted Gadong to proceed across the street. Unfortunately, as a result of the collision, Erwin Gadong suffered a brain injury, and although he has returned to school on a full-time basis, he still requires rehabilitative services twice a week to help improve his memory and brain function.

[2] In addition, after the Peel Regional Police had completed their investigation of the November 24, 2010, collision between the pickup truck and Erwin Gadong, they swore out an information on February 17, 2011, charging the driver of the pickup truck, Benito Scetto, with a Part III regulatory offence for "failing to stop for a red light", contrary to s. 144(18) of the Highway Traffic Act, R.S.O. 1990, c. H.8.

[3] The red light charge eventually proceeded to trial and was held over three days: October 31, 2012, November 1, 2012, and March 1, 2013. A total of nine witnesses testified at the trial. After the testimony of the nine witnesses were completed on the first two days of the trial, the matter was then adjourned to November 23, 2012, in order for the defendant's legal representative to consider whether transcripts of the trial would be ordered so that they could be used to prepare final submissions. On November 23, 2012, the defendant's legal representative informed the court that due to the anticipated cost of obtaining transcripts of the proceedings that the transcripts would not be ordered. As a consequence, a date to hear final submissions was then scheduled for March 1, 2013.

[4] For the defendant's closing submissions, the defendant argues that the Crown has not proven that he had committed the offence of failing to stop for a red light beyond a reasonable doubt because of the conflicting testimony among the witnesses and the credible evidence given by the defendant, which he contends has been corroborated by other witnesses, in that the defendant had not crossed the stop line on a red light; rather, the traffic light for the defendant had just changed from a green light to a yellow light when the defendant's pickup truck crossed the stop line, and that it had been the bicyclist, whose view had been obstructed by a bus stopped in the curb lane, that had suddenly popped out in front of the defendant's truck, and that it had been the bicyclist who had struck the passenger-side mirror of the defendant's truck while the defendant had been attempting to swerve the truck in order to miss the bicyclist.

[5] On the other hand, the Crown submits that the testimony of the defendant and the witnesses who said the traffic light for the defendant had been yellow when the defendant's pickup truck crossed the stop line is not reliable nor credible, while the testimony of the Crown's witnesses is credible and should be accepted, which would prove beyond a reasonable doubt that the defendant's truck had crossed the stop line on a red light just before the truck struck the bicyclist in the pedestrian crosswalk.

[6] After closing arguments were concluded on March 1, 2013, I reserved judgment and adjourned the matter until May 3, 2013, to render my judgment. These, therefore, are my written reasons for judgment:

2. THE CHARGE

[7] Under a Part III information sworn on February 17, 2011, the defendant had been charged with committing the offence of "red light – fail to stop", contrary to s. 144(18) of the Highway Traffic Act, R.S.O. 1990, c. H.8. The charge states that:

Benito Scetto of [removed to protect privacy], Mississauga Ontario

on or about the 24th day of November, 2010, at the City of Mississauga in the Central West Region did commit the offence of: at approximately 7:52 a.m., being the driver of a motor vehicle on Hurontario Street, licence number [removed to protect privacy], and approaching the intersection where a red signal was showing and facing such light at Bristol Road and Hurontario Street did fail to bring the said motor vehicle to a full stop, contrary to the Highway Traffic Act, section 144(18).

3. FACTUAL BACKGROUND

(a) SUMMARY OF EVENTS

[8] On the morning of November 24, 2010, just before 7:52 a.m., Erwin Gadong, had just finished an early morning basketball practice at St. Francis Xavier Secondary School, and had left the school to go home so that he could change into his school uniform for his first class. He had also borrowed his friend's bicycle and had been riding it towards his home. When he reached the intersection of Hurontario Street and Bristol Road in the City of Mississauga, he had a red light and had to wait on the sidewalk in the northwest corner of the intersection for the traffic and pedestrian lights to change so that he could travel east across Hurontario Street. At the same time, Benito Scetto, the defendant, had been driving his black-coloured pick-up truck, which had been pulling a trailer containing lawnmowers and equipment, southbound on Hurontario Street in the middle of three southbound lanes and approaching the intersection at Bristol Road, which is controlled by automatic traffic lights. He also had two passengers in his pickup truck and they had been on their way to a private residence to do leaf collection, as part of the defendant's gardening and landscaping business.

[9] Also at that time, there were many students on the eastside of the intersection waiting for the pedestrian signal light to change so that they could cross Hurontario Street in order to get to their school, which is St. Francis Xavier Secondary School, located on the southside of Bristol Road, about half of a block west of the intersection. In addition, there were also motor vehicles that had been stopped on Bristol Road waiting for the traffic light to change. As well, there had been a Mississauga Transit bus southbound on Hurontario Street, which had been stopped in the curb lane just north of Bristol Road, right beside the bus stop located in the northwest corner of the intersection. People were also getting on and off the bus.

[10] Then, at approximately 7:52 a.m., Erwin Gadong, moved forward and entered onto the pedestrian crosswalk located on the northside of the intersection that runs in an east and west direction, supposedly after the pedestrian signal light had come on, which would have permitted him to proceed across Hurontario Street. He was also riding a bicycle when he entered onto the pedestrian crosswalk. As Gadong reached the middle lane of the southbound lanes of Hurontario Street while still within the pedestrian crosswalk, the black pickup truck driven by the defendant collided with Gadong. Gadong had come into contact with the passenger-side of the pickup truck, flew in the air, and landed on the roadway.

[11] After the collision, the driver of the pickup truck, Benito Scetto, stopped his pickup truck on the southside of the intersection, and then got out and checked on the condition of the bicyclist. He then remained at the intersection for the police to arrive. When police officers from the Peel Regional Police arrived at the intersection, Scetto gave a statement voluntarily to one of the officers.

[12] In addition, Gadong had been unconscious when people, who had been at the intersection, had checked on Gadong's condition. An ambulance then arrived and took Gadong to the hospital. Fortunately, Gadong survived the collision, but received a serious head injury that has damaged his brain and cognitive abilities. He also lost one tooth and split another one, fractured his skull, nose, and left clavicle, and his upper left lip had also required stitches.

[13] Gadong also had to miss approximately three months of school. Although he has returned to school, he is still receiving rehabilitative services twice a week to help him improve his memory and cognitive abilities.

[14] Furthermore, after officers from the Peel Regional Police had interviewed witnesses who were at the intersection at the time of the collision, including the defendant, and after completing their investigation of the collision, they decided to charge the defendant with committing the offence of "red light – fail to stop", contrary to s. 144(18) of the Highway Traffic Act.

[15] A Part III information charging Benito Scetto with the red light offence was then sworn on February 17, 2011, and Scetto was served with a summons informing him of the charge and of the date, location, and time of his first appearance in court, which was to be on April 21, 2011, at the Brampton Provincial Offences Courthouse. Eventually, after several more appearances, the matter was set down for trial.

[16] The trial of this charge was then held over three days: October 31, 2012, November 1, 2012, and March 1, 2013. At the trial, nine witnesses testified. Six testified for the Crown while three for the defence. They are, in the order that they testified: (1) Anthony Franceschi, a witness who had been a pedestrian walking westbound on Bristol Road and waiting at the northeast corner of the intersection for the pedestrian walk signal to turn on just before the collision; (2) Natalie Ianniello, a witness who had been a pedestrian walking westbound on Bristol Road and waiting at the southeast corner of the intersection for the pedestrian walk signal to turn on just before the collision; (3) Karissa Persaud, a witness who had been a pedestrian walking westbound on Bristol Road and waiting at the southeast corner of the intersection for the pedestrian walk signal to turn on just before the collision; (4) Dino DiBernardo, a motorist who had been driving westbound on Bristol Road and had been stopped for a red light, first in line in the designated left-turn lane; (5) Erwin Gadong, the high school student that was struck by the defendant's vehicle; (6) Elias Hanna, the driver of the City of Mississauga Transit bus that had been southbound on Hurontario Street in the curb lane and stopped for a red light at the northwest corner of the intersection; (7) Joanne Ong, a driver of a motor vehicle northbound on Hurontario Street and first in line in the northbound designated left-turn lane; (8) Edwin Gilberto Bonilla, a passenger sitting in the backseat of the pickup truck driven by the defendant; and (9) Benito Scetto, the defendant.

(b) DESCRIPTION OF THE INTERSECTION

[17] The intersection of Bristol Road and Hurontario Street is located in the City of Mississauga. It is a large and busy intersection that is controlled by automatic traffic lights and pedestrian signals. The automatic traffic lights, as conceded by the defendant's legal representative, had been operating normally and properly on November 24, 2010, at the time of the collision between the defendant's pickup truck and the bicyclist.

[18] As well, for the purposes of this proceeding, Bristol Road will be referred to as an east-west road while Hurontario Street will be referred to as a north-south road.

[19] Furthermore, based on the aerial photographs of the intersection entered as exhibits, there is an indication that there is a center median on the eastside of the intersection that separates northbound and southbound traffic on Bristol Road West and a center median on both the north and south sides of the intersection that separates northbound and southbound traffic on Hurontario Street.

[20] In addition, based on the aerial photographs of the intersection, there are five lanes of northbound traffic for Hurontario Street on the southside of the intersection for the eastern half of the roadway, in which the three center-most northbound lanes are through lanes, while the most westerly northbound lane is a designated left-turn lane, and the most easterly northbound lane is designated right-turn lane. Moreover, on the northside of the intersection for the eastern half of Hurontario Street, there are three northbound lanes.

[21] Moreover, the aerial photographs also show that there are four southbound lanes of traffic for Hurontario Street on the northside of the intersection for the western half of the roadway, in which the three most westerly southbound lanes are through lanes, while the most easterly southbound lane is a designated left-turn lane. And, on the southside of the intersection for the western half of Hurontario Street, there are three southbound lanes.

[22] Furthermore, the aerial photographs also show that there are three westbound lanes of traffic for Bristol Road West on the eastside of the intersection for the northern half of the road, in which the center lane is a through lane, while the most southerly lane is a designated left-turn lane and the most northerly lane is used as a through lane and for making right turns. And, on the southside of the intersection for the eastern half of Bristol Road, there are two eastbound lanes.

[23] Moreover, the aerial photographs also show that there are two westbound lanes of traffic for Bristol Road West on the westside of the intersection for the northern half of the road. And, for the southern half of the road for the westside of Bristol Road, there are three eastbound lanes, in which the center lane is a through lane, while the most northerly eastbound lane is a designated left-turn lane and the most southerly eastbound lane is used as a through lane and for making right turns.

[24] In addition, based on the testimony given during the trial there are also pedestrian crosswalks marked and painted on the road surface on each side of the intersection, as well as white stop lines that are painted on the road surface for each direction of traffic. And, from the aerial photographs, the white stop line for southbound traffic on Hurontario is located just north of the pedestrian crosswalk lines situated on the northside of the intersection. The distance between the white stop line and the north boundary line of the pedestrian crosswalk, as shown on the aerial photographs, is about one-third of the width of the crosswalk from the north boundary line to the south boundary line of the crosswalk, which makes the white stop line appear to be about a meter north of the pedestrian crosswalk (or half of the width of a car shown in the aerial photographs).

[25] Furthermore, the aerial photographs of the intersection also show there is a gas station on the southwest corner of the intersection, a shopping plaza on the southeast corner, undeveloped land and a bus stop at the northwest corner, and townhouses in the northeast corner.

[26] Moreover, based on the agreed statement of facts, the traffic lights for the intersection were functioning normally and properly working at the time of the collision. In addition, the defendant's legal representative agreed that there is a 2.5 second all-red phase for the traffic lights for all directions at the intersection that had been based on the Guild Report dated March 9, 2011, that had been prepared for the City of Mississauga, and provided to the defendant as part of the Crown's disclosure, which means that when a traffic light at the intersection changes to show a red light then there is a red light in all directions of traffic for a duration of two and a half seconds. The concession by the defendant's legal representative that there had been a 2.5 second all-red phase for the traffic lights at the intersection had been made after the court became concerned about not having evidence of what the duration of the all-red phase would be after the Crown had informed the court that the investigating police officer would not be called as a witness.

[27] More important, the court viewed that evidence on the duration of the all-red phase was essential and should be before the court, in the interests of justice and for the court to arrive at a proper decision on the merits of the case, for which the court informed both the Crown and the defendant's legal representative that it was considering the necessity of the court to summon the investigating officer to attend to provide that evidence about the duration of the all-red phase, relying on R. v. Finta, [1994] 1 S.C.R. 701 (S.C.C.), at paras. 295 to 297 and 302:

It has long been recognized in Canada and in England that in criminal cases a trial judge has a limited discretion to call witnesses without the consent of the parties. This step may be taken if, in the opinion of the trial judge it is necessary for the discovery of truth or in the interests of justice. This discretion is justified in criminal cases because "the liberty of the accused is at stake and the object of the proceedings is to see that justice be done as between the accused and the state" (Sopinka, Lederman and Bryant, The law of Evidence in Canada (1992), at p. 826).

The discretion should only be exercised rarely and then with extreme care, so as not to interfere with the adversarial nature of the trial procedure or prejudice the accused. It should not be exercised after the close of the defence case, unless the matter was one which could not have been foreseen. (See Sopinka, Lederman and Bryant, supra, at p. 826; Peter K. McWilliams, Canadian Criminal Evidence (3rd ed. 1988), at para. 27:10830 "Right of judge to call witnesses", at pp. 27-15 and 27-16; Cross on Evidence (7th ed. 1990), at pp. 266-68); Phipson on Evidence (14th ed. 1990), at pp. 219-20; Archbold, Pleading, Evidence and Practice in Criminal Cases (45th ed. 1993), at p. 1/555; see also annotation by Philip C. Stenning, " One Blind Man to See Fair Play': The Judge's Right to Call Witnesses" (1974), 24 C.R.N.S. 49, and Michael Newark and Alec Samuels, "Let the Judge Call the Witness", [1969] Crim. L. Rev. 399.)

There is very little case law on how the discretion should be exercised. In his annotation, supra, Stenning enumerates seven propositions derived from English case law. These propositions were cited with approval as correctly stating the Canadian law in Campbell v. The Queen (1982), 31 C.R. (3d) 166 (P.E.I.S.C.), at pp. 172-75, per Campbell J., and in R. v. S.(P.R.) (1987), 38 C.C.C. (3d) 109 (Ont. H.C.), per McKinlay J. (as she then was), affirming decision of Kurisko Dist. Ct. J. A summary of these propositions is as follows:

The trial judge may call a witness not called by either the prosecution or the defence, and without the consent of either the prosecution or the defence, if in his opinion this course is necessary in the interest of justice: R. v. Harris (1927), 20 Cr. App. R. 86 at p. 89 (K.B.); R. v. Holden (1838), 8 Car. & P. 606, 173 E.R. 638; R. v. Brown, [1967] 3 C.C.C. 210, at p. 215, per Hyde J. (dissenting in part on another issue), at pp. 219-20 per Taschereau J. (for the majority); R. v. Bouchard (1973), 24 C.R.N.S. 31, (N.S. Co. Ct.), at p. 46; Campbell v. The Queen, supra, at pp. 172-75; R. v. S. (P.R.), supra, at pp. 111, 119-24; R. v. Black (1990), 55 C.C.C. (3d) 421 (N.S.S.C.A.D.), at p. 425.

The right to call a witness after the close of the case of the defence should normally be limited to a case where a matter was one which could not have been foreseen.

A witness may be called after the close of the defence not in order to supplement the evidence of the prosecution but to ascertain the truth and put all the evidence before the jury.

The trial judge may not exercise his right to call a witness after the jury has retired, even at the request of the jury.

In a non-jury case, in the absence of special circumstances, it is wrong to allow new evidence to be called once a trial judge has retired, and probably after the defence has closed its case.

A judge ought not to exercise his discretion to call a witness if the defence would in no way be prejudiced by calling the witness. The defence should not be permitted in this way to use the judge to call their witness to give him a greater appearance of objectivity.

The calling of the witness after the defence has closed its case is a factor which may be taken into account on appeal.

In order to take this unusual and serious step of calling witnesses, the trial judge must believe it is essential to exercise the discretion in order to do justice in the case. In the case at bar, where the trial judge had decided that certain evidence was essential to the narrative it was a reasonable and proper exercise of the discretion to call the evidence if the Crown refused to do so. … .

[28] In any event, this 2.5-second all-red phase is typically what the duration for that particular phase would be for automatic traffic lights at an intersection with the same setup.

(c) AGREED FACTS

[29] The defendant's legal representative also conceded and agreed with the Crown to the following facts:

(a) the defendant's statement to the police had been given voluntarily, but the prosecution would not be entering the statement.

(b) the date, time, place, and jurisdiction is not at issue.

(c) the identity of the driver of the vehicle in question is not at issue and that the defendant was the driver of that vehicle.

(d) the Guild Report from the contractor for the municipality, dated March 9, 2011, provided by John Clarke, Manager of Traffic Engineering, is conceded and not at issue, and indicates that the traffic lights at the intersection of Bristol Road and Hurontario Street were functioning and working properly on November 24, 2010, at the time in question.

(e) that when the traffic light for southbound Hurontario Street is green than the light is also green for northbound traffic.

(f) the cycle for the traffic lights at the intersection is red-green-amber-red.

(g) that there is an all-red phase for the traffic lights in all directions of the intersection, which also has a duration of 2.5 seconds.

(d) SUMMARY OF TESTIMONY

[30] The following is a summary of the testimony given by the nine witnesses who testified at the trial:

(1) Anthony Franceschi, a witness who had been a pedestrian walking westbound on Bristol Road and waiting at the northeast corner of the intersection for the pedestrian walk signal to come on just before the collision occurred

[31] Anthony Franceschi testified he is a Grade 12 high school student who attends St. Francis Xavier Secondary School in Mississauga and has plans to go to university and study business.

[32] At the time of the accident involving Erwin Gadong, Franceschi said he had been only in Grade 10. Franceschi also said he had spoken with the police that day.

[33] Furthermore, Franceschi said he and Erwin Gadong are friends and have attended elementary and high school together, but they do not hang out with each other.

[34] Franceschi also said that just before the accident had occurred he had been walking to school and had been stopped and waiting to cross at the intersection of Hurontario and Bristol. He further said he had to stop for a duration of a minute. He also said there had been a green light for him at the time when he saw a vehicle hit Erwin Gadong. Moreover, he said he had looked before he walked and had observed that the light for him had been green. He further said that when Erwin Gadong had entered the intersection, the pedestrian light for crossing had been green, and that both of them had been crossing at the same pedestrian crosswalk, but on opposite sides of the street.

[35] Furthermore, Franceschi said that Erwin Gadong had been riding his bicycle when Gadong entered the intersection and that Gadong did not hesitate in entering the intersection. Also, Franceschi said that Gadong had been still on his bicycle when the collision occurred and that Franceschi had been moving forward and looking forward the whole time and straight ahead at Gadong when the collision happened.

[36] In addition, on a blank aerial photograph of the intersection of Bristol Road West and Hurontario Road, in the City of Mississauga (Exhibit "1"), Franceschi had marked an "X" with a red pen to indicate that the location of his school is in the southwest area of the intersection. He then printed on the photograph his initials "A.F." to indicate that he been crossing the street at the northeast corner, and then drew an arrow within the northside pedestrian crosswalk to represent the westbound direction in which he had crossed Hurontario Street. He then printed the initials "E.G." in blue ink to indicate that his friend Erwin Gadong had been situated at the northwest corner of the intersection and then drew a blue-coloured arrow within the northside pedestrian crosswalk to indicate the eastbound direction Erwin Gadong had been travelling across Hurontario Street on November 24, 2010.

[37] Moreover, Franceschi said there had been other people with him at the time. He also said that he does not normally walk to school, but had to walk to school that day.

[38] Furthermore, Franceschi repeated that the light for him had been green so that he could walk. He further elaborated that he had the white walking sign, which shows a white-coloured symbol of a person and had seen this symbol before he had entered onto the street.

[39] Franceschi also said he had been waiting and watching to see the light turn. He further said the intersection had been busy that morning, with cars at the intersection at that moment. In addition, he said he had observed that the colour of the north-south light had been red, which meant those going in that direction had to stop. Furthermore, he said he saw a black truck cross onto the intersection and hit Erwin Gadong. He also said he saw the light for the truck had been red and that the truck had not stopped. Moreover, he said there were also two or three vehicles that were going in the same direction as the truck, but that they had stopped for the red light.

[40] In addition, Franceschi said he did not know what kind of truck it was, but that the truck had been going fast. However, he said he is not certain whether the truck had been going the speed limit. Moreover, he said he had first seen the black truck when it had hit or collided with Erwin Gadong. Furthermore, when he had first observed Erwin Gadong, Franceschi said he had been looking straight and observed Gadong on the sidewalk waiting to cross, parallel to him but on the opposite side to him, and then later observed Gadong enter the intersection at the same time that Franceschi had entered the intersection. However, he said he is not certain where Gadong was exactly on the sidewalk. He also said that Gadong had been 1.5 to 2 metres into intersection when Gadong was hit.

[41] Furthermore, Franceschi said there had been three or four people in front of Franceschi who Franceschi did not know and that they had stepped on the road before Franceschi did and were 1.5 meters ahead of Franceschi. He also said they were not running but walking a normal pace. Moreover, he said he does not know if any of those three or four people are here today.

[42] After Franceschi had observed Erwin Gadong being hit, he said he then observed Gadong lying down on the ground. He said he then went first to look at Gadong, then went onto the sidewalk and waited, and then heard sirens. He also said that while he was waiting someone had called the police and ambulance.

[43] Furthermore, Franceschi said he had observed people stop and come out of their cars. He then said he went to the school to tell school administrators about what had happened. He also said that later during the first period of his classes, at about 9:00 a.m., he had spoken with the police.

[44] In addition, Franceschi said he did not have his G1 license at the time of the accident and only got it in September. He also said he does not know the speed limit on Hurontario and guessed that it is 50, but does not know for sure.

[45] Franceschi also agreed with the suggestion made to him during cross-examination that since he had been looking forward the whole time while waiting for the pedestrian signal to change that he did not see the colour of the light for the truck at the time the truck had entered the intersection, nor did he see the light for the truck at any time. Also, he said he did not see the truck enter the intersection until the truck had hit Erwin Gadong.

(2) Natalie Ianniello, a witness who had been walking westbound on Bristol Road and waiting at the southeast corner of the intersection for the pedestrian walk signal to come on just before the collision occurred

[46] Natalie Ianniello testified that she is in Grade 11 at St. Francis Xavier Secondary School and plans to pursue business and the accounting field after high school. She also said she remembers November 24, 2010, and said that she had been going towards St. Francis Xavier at the time in question. In addition, she said she did speak with the police that day.

[47] Ianniello further said that her father had dropped her off at the plaza across from the school and that she had been crossing Hurontario and Bristol when the accident occurred.

[48] Also, on a blank aerial photograph of the intersection of Hurontario and Bristol (Exhibit "2"), Ianniello used a red pen to mark an "X" west of the intersection to show the location of her school. She then marked the location of where she had been when she started crossing Hurontario Street with her initials "N.I.", which were placed at the southeast corner of the intersection. She also drew within the southside pedestrian crosswalk an arrow pointing west to show the direction that she was going. She then marked a small "x" where Erwin Gadong had been located when she saw him lying on the ground after the accident, which was in the northwest area of the intersection, just east of the west curb of Hurontario Street and north of the north curb line of Bristol Road.

[49] In addition, Ianniello said she knows Erwin Gadong but did not see him at the intersection until after the accident had occurred, and that she did not even know it had been him lying on the road until she had approached the location of where he had been lying on the road, which is when someone had told her that it had been Erwin Gadong lying on the road. Furthermore, she said she has known Erwin Gadong since elementary school, but not well, and only talks to him occasionally.

[50] Ianniello also said that just before the accident, which had been about 7:45 to 7:50 a.m., she had been walking with her classmate, Alina. She also said her first class of the day starts at 8:15 a.m. In addition, she said there is usually a large group of students at that time crossing Hurontario at the intersection of Hurontario and Bristol in order to get to school. She further said she had been waiting for the light, which was a red light for Bristol and a green light for Hurontario. She also said she saw the lights, and after a few seconds or minutes of waiting the light changed and they starting walking westbound towards their school, which is on the southside of the road. Furthermore, she said that cars had stopped before she starting walking and that when she first got to the intersection the light had been red and then it changed to white. She also guessed that there had been approximately 10 to 15 people that had crossed with her.

[51] Moreover, after reviewing her handwritten statement while in the witness box, Ianniello acknowledged that she had drawn a diagram in her statement and that her memory would have been more fresh at the time that she had written her statement than it would be presently. She then said that when she and her classmate Alina, whose last name she does not know, had begun to cross in a westerly direction they had a green light and cars had a red light or possibly a yellow light. She also said that she had indicated on her diagram that Erwin Gadong had been going west because she had not seen the collision and it had been her understanding that day that Erwin had been going west, but then later learned that he had been actually going in an east direction. She further acknowledged that she had not seen Erwin Gadong when she had started to cross the street and when she did look in that direction and saw him lying on the road she had not seen anyone on the road. In addition, she said that she knew the colour of her light, but not what the colour of the light had been for Erwin Gadong.

[52] Ianniello also said she is confident that the light had been red for Hurontario because she had crossed the road, but that it had happened so fast, and therefore, is not 100 percent sure, but pretty sure. However, she said she did not see the traffic light for Hurontario, but did see the one for Bristol.

[53] Furthermore, Ianniello said she did not see Erwin Gadong until after he had been hit. She further said she had not seen anyone walking with Erwin Gadong, in the same direction as him. She also said she had been looking generally in a forward direction while she had been talking with her classmate, who she said had been looking that way or in the direction of the accident. And, she said that it was not until the moment that Ianniello had seen her classmate's face go blank had been when she had reacted and then looked in the direction of the accident and noticed that someone, later identified as Erwin Gadong, was lying on the ground. She also said that both she and Alina were facing toward their school, but as they were walking across the street, their faces were toward each other while they were talking to each other. In addition, she said she had been in the middle of the intersection or halfway across the street when she observed someone lying on the northside of the road, which would be at the opposite side of the street from her. Furthermore, she guessed that her friend Alina must have seen what had happened, but from the corner of her eye. Moreover, she said that she had no idea where Erwin Gadong had been or what Alina had actually observed, and that she only observed Alina's facial expression.

[54] In addition, Ianniello said she does not remember seeing a pickup truck.

[55] Ianniello also said she had given a statement to the police that day when the events had been fresh in her mind. She also said she had guessed that it had taken her seven seconds to get to the middle of the intersection and had written that down in her statement. She also said she does not know the speed limit there. In addition, she said that most of the other people had run over to see what had happened and that most cars had stopped at the time and that people had also gotten out of their cars. She also said that it had taken her a couple of seconds to reach Erwin.

[56] Furthermore, Ianniello said Erwin Gadong, who was wearing a hood, had been lying by a bike. She also said that one of the other witnesses, who was a friend of Erwin Gadong, then recognized him and told her who it was on the ground, and Ianniello said it was at that moment that she knew it was Erwin Gadong who had been lying on the ground. She said she then went to the school to tell the office and to contact his family.

[57] In addition, Ianniello admitted that she had talked that day about what had happened with Krista and Alina, who were also there that day, but does not recall talking to them since that day about the event. However, she said that she did not talk to them until after she had given her statement to the police. She also said that she was the one that had written down her statement that had been given to the police and had believed that her statement had been true at the time. Furthermore, she said she had not been given a copy of her statement until today. She also said she had not made any other writings in regards to the accident.

[58] Furthermore, Ianniello did not see the collision occur nor does she recall seeing any vehicle involved in the accident at the time.

(3) Karissa Persaud, a witness who had been a pedestrian walking westbound on Bristol Road and waiting at the southeast corner of the intersection for the pedestrian walk signal to come on just before the collision occurred

[59] Karissa Persaud testified she is a high school student and in Grade 12 at St. Francis Xavier Secondary School and hopes to be a French teacher and to attend the University of Toronto or Brock University.

[60] Persaud also said she was in Grade 10 and attending high school at St. Francis Xavier on November 24, 2010. In addition, she said she had spoken to the police that day.

[61] Furthermore, Persaud said she had been walking to school westbound on Bristol and that the light had just turned. She also said that she normally gets driven to school, but her father was out of the country, so she had to walk to school.

[62] Also, on a blank aerial photograph of the intersection of Hurontario Street and Bristol Road (Exhibit "3"), Persaud used a red pen to mark an "X" west of the intersection to show where her school is located. She then marked the location of where she had been when she started crossing Hurontario Street with her initials "K.P.", which were placed at the southeast corner of the intersection. She also drew an arrow pointing west within the southside pedestrian crosswalk to show the direction that she was going. She then marked a small "x" where she had seen Erwin Gadong lying on the ground on Hurontario Street after the accident, which she placed in the northwest area of the intersection, just east of the west curb of Hurontario Street and north of the north curb of Bristol Road.

[63] Furthermore, Persaud said she knows Erwin Gadong from school, but does not socialize with him. She also said she did not see Gadong at the intersection until after he had been hit.

[64] In addition, Persaud said she had been with her friend, Natalie Iannello and Alina, who are both Grade 11 students at her school, as well as being among a bunch of other students from her school when she had been crossing the street at about 7:55 a.m. She also estimates there were 30 to 50 other people at the crosswalk with her, in which she described as some being beside her and some were behind her, but that they were close to each other when they had crossed. In addition, she said the intersection is always very busy at that time and that a lot of cars turn left onto Bristol to drop off students. Furthermore, she said that it had been busy that morning on November 24, 2010.

[65] Persaud also said that when she first got to the intersection the light for her had been red and she had then waited until it turned green. In addition, she explained that she first had the red "hand" sign for her crosswalk, but did not have to wait very long until it changed to the white "walking" sign for her to proceed onto the crosswalk. She then said she looked at the traffic light which she said was green and that the "walking" sign had showed that it was okay for her to proceed. Also, when the light changed for her, she said she had made sure that there were no northbound cars turning east or making a right turn onto Bristol before she walked across. She also said she had looked in her direction to see if the traffic had been clear and said that it had been clear for her. However, she said she did not observe the right-hand side of the intersection where Erwin Gadong would have been, but that it had been clear for her side. Furthermore, she said Erwin Gadong had been on the opposite side and she did not look where he had been travelling to see if it had been clear there. She also said she had looked to her left or straight ahead before walking into the intersection.

[66] Moreover, Persaud said that when she had made it out about halfway or just before halfway into the intersection, she heard a lady honk her horn, which then caused everyone to freeze. Moreover, she explained that she had been in the middle of the intersection when she had stopped. Furthermore, she said that everyone had been frozen at that moment of the honking. She then took a quick view of the intersection and looked to her right and said she noticed someone lying on the street and then observed a truck pull across the street, just stopping after the intersection at the southwest corner of the intersection. She also said the truck had gone by her pretty fast and that it had been hard to see the truck because it had been going so fast. Moreover, she said she did not observe the pickup truck in the intersection. Additionally, she said the driveway for the gas station on the southwest corner of the intersection was located approximately 10 meters south of the intersection. She also said the truck had stopped in front of the gas station driveway and did not go inside. However, she said she did not see Erwin Gadong at any time before the accident, nor before Erwin had been hit. In addition, she said she did not actually see the lights for north and south traffic on Hurontario, nor the colour of their light.

[67] In addition, Persaud said she had spoken to the police that day and had been asked by the officer where she had been, what she had been doing at that time, and what she had observed. She also confirmed that the document shown to her when she had been testifying had been her detailed written statement that she had given to the police, that she had made in her own handwriting, and that the information at that time had been accurate to the best of her knowledge. She further confirmed that it was her signature on the document. She also said she wrote the statement in the office at her school, but that the diagram on the second page of her statement showing where the students that had been with her were at the intersection had been drawn by the police officer. In addition, she said she had reviewed her statement before she signed it. Then, after having had the opportunity to review her statement she said her memory had been refreshed and then said she knew the light for north and south Hurontario Street was red because the Bristol light had been green, since she had looked at both the traffic light and pedestrian sign for her direction. However, she said she did not make a note about the colour of the light for Hurontario Street.

[68] Then, after seeing Erwin Gadong on the ground, Persaud said she and the other students ran to the office to notify them that Erwin Gadong had been hit. She further said she then rushed back outside with the office administrator, but the administrator had told her to wait inside. When she returned to the intersection after reporting the accident to school administration, she had noticed that Erwin Gadong was no longer lying on the road. In addition, she said that when she had been in the pedestrian crossover on the southside of the roadway she did not know who had been lying on the roadway. Moreover, she explained that it had been another witness who had told her right after the accident that it had been Erwin Gadong who had been lying on the street. Furthermore, she said that there had been no one else lying on the street.

(4) Dino DiBernardo, a motorist who had been driving westbound on Bristol Road and had been stopped first in line for a red light in the designated left-turn lane just before the collision occurred

[69] Dino DiBernardo testified he works as a Regional Sales Manager and has been employed in the sales area for 24 years. He also said he believes the statement he had made to a police officer on January 18, 2011, which he had read and signed, had been accurate. He further said he had discussed the event with his wife and daughter before he gave his statement, and that his discussion with his daughter had been about what she had observed at the scene of the accident.

[70] DiBernardo also said his daughter attends St. Francis Xavier Secondary School and is now in Grade 12. He also said his daughter had attended her school on November 24, 2010, and that he had been driving his daughter to school that day.

[71] Furthermore, DiBernardo said that he and his daughter were in his car and they had been stopped at the lights at Bristol and Highway 10 (Hurontario Street). He also said that his light had been red, that his vehicle had been the first in line, and that he had been stopped there for 10 to 15 seconds.

[72] In addition, on a blank aerial photograph of the intersection of Hurontario and Bristol (Exhibit "4"), DiBernardo used a red pen to mark an "X" west of the intersection to show where his daughter's school is located. He then marked the location of where he had been stopped in his car with his initials "D.D.", which were placed on Bristol Road east of the intersection and in the westbound left-turn lane. In addition, he drew an arrow making a left-turn to show the direction he was intending to go. He then marked a small "x" where he had observed Erwin Gadong lying on the ground on Hurontario Street after the accident, which was in the northwest area of the intersection, just east of the west curb of Hurontario Street and north of the north curb line of Bristol Road.

[73] Furthermore, DiBernardo said that while he had been waiting for his light to change, he did not see any traffic from north to south go through the intersection. He also said that he had only looked at his light and did not look at the light for Hurontario.

[74] DiBernardo further said that it is always busy there. In addition, he said there had been a bus stopped in the right-hand lane on Hurontario facing southbound, north of Bristol Road. He also acknowledged that there is always a cluster of kids that cross there. Moreover, he said that Anthony Franceschi, a friend of his daughter, had been on the northside of Bristol Road heading west.

[75] In addition, DiBernardo said that after waiting at the red light, the light turned green, after which he said he then nosed ahead or proceeded a little into the intersection. He also said that after his light changed to green and as he moved his car forward, he then heard a loud bang. He said he then looked to his right and observed a bike laying on the ground and a vehicle flying through the intersection. He then said he finished completing his left turn. Moreover, he said that a truck with a flatbed with lawn equipment had pulled over on Highway 10 (Hurontario Street).

[76] DiBernardo also clarified that it had been only after he had moved his vehicle forward was the point at which he had heard the bang and then saw the truck flash or streak in front of him. He also reiterated that he had observed the light that was for him. In addition, he said he had observed the bike go down. He then said that after he had parked his car in the Rabba Store parking lot he had approached the individual lying on the ground. Furthermore, he said that both he and his daughter had recognized the individual lying on the ground. He said his daughter then left to go to her school. In addition, he confirmed during cross-examination that he had not mentioned observing a "streak" in his statement to the police officer.

[77] Moreover, after making his left turn, DiBernardo said he stopped and called 9-1-1. He further said he had been talking with the 9-1-1 operator the entire time. He also said he did not touch Erwin Gadong, but noticed that someone had brought a blanket to cover Gadong. However, he said he did notice that Erwin Gadong had been bleeding and not conscious. He also recalled seeing blood from Erwin Gadong's ear. Furthermore, he said Erwin Gadong had been situated past the bus, east of where the bus was already stopped, or when facing southbound he said that Erwin Gadong had been lying to the left of the bus and a little bit in the intersection. Moreover, he confirmed that there were markings on the roadway indicating the east-west pedestrian crosswalk on the northside of the road, but did not note where Gadong had been lying in relation to that pedestrian crosswalk, but that Gadong had been laying in the area of the crosswalk, within the crosswalk.

[78] In addition, when shown photographs of a black truck with a trailer (Exhibit "10"), DiBernardo confirmed that the truck in the photographs had been the truck with the flatbed that he had observed. However, he said he had observed the flatbed only from its rear.

[79] Furthermore, when asked about his memory being better on the day of the event than for today, DiBernardo said his memory is the same today and then explained he distinctly remembers three steps that day. For those three steps, DiBernardo said he had heard a bang and then looked to his right and then saw the bicycle lying on the ground.

[80] In addition, he said his first clear view of the truck had been when it was at the corner by the gas station.

(5) Erwin Gadong, the high school student who had been struck by a southbound vehicle

[81] Erwin Gadong testified he is currently in Grade 12 at St. Francis Xavier Secondary School and that on November 24, 2010, he had been in Grade 10. He also said his goal is to attend college to take a pre-firefighting course.

[82] Gadong also said he remembers a little bit about the accident he had been involved in on November 24, 2010. On the morning of that day, he said he had been at a basketball practice at St. Francis Xavier before school commences because he is part of the school basketball team. In addition, he said he had gotten to the practice using a bicycle he had borrowed from a friend. He also said he had asked his coach to leave the practice early at about 7:40 a.m. and then got on the bicycle to ride home from the school so that he could change into his school uniform. Also, he said his first class would start at 8:17 a.m. However, he said he could not recall at what time he had reached the intersection of Hurontario and Bristol.

[83] In addition, Gadong said he lives 1.5 kilometers from the school. He further said he has ridden a bicycle from the school to his home before and that it takes about eight minutes to go from the school to his home on a bicycle.

[84] Furthermore, on a blank aerial photograph of the intersection of Hurontario Street and Bristol Road (Exhibit "5"), Gadong used a blue pen and marked an "X" west of the intersection to show where his school is located. He then marked the location of where he had been stopped at the northwest corner of the intersection with his initials "E.G." and also drew an arrow within the northside pedestrian crosswalk showing the east direction that he had been riding his friend's bicycle when he attempted to cross Hurontario Street.

[85] In addition, Gadong said he only generally remembers that there were people at the intersection, which had been on the opposite side of the road to him and that he observed them on the southeast corner of the intersection. He also remembers that the intersection was fairly busy at that time. Furthermore, he said that when he first got to the intersection he looked and saw that the traffic light for him to cross had been red. When he saw the red light, he said he then waited. However, he said he does not know for how long he had waited, but said he had waited for at least a couple of seconds. Then, when the light changed to the "walking man", he said he starting riding and then remembers only waking up in the hospital.

[86] Gadong also said he had been unconscious for two days at the hospital. He also said he had received injuries to his brain that requires him to do rehab a couple of times a week, in which his therapist comes to his house. He further said that he had taken the months of January, February and March off from school. In addition, he said the effect of being hit now requires him to have an Individual Educational Planner who reads to him, as he cannot comprehend.

[87] Furthermore, Gadong said he did not know he had been hit when he first woke up in the hospital. As for the last thing he remembers before waking up at the hospital, he said it was of him being stopped at the corner. He also said he remembers riding into the intersection, and remembers being about a meter into the intersection, but does not remember being hit.

[88] Moreover, Gadong described his physical injuries had consisted of a fracture on his skull, a fracture of his left nose, that he had three fractures on his left shoulder or clavicle, that he had stitches on his upper left lip, and that his two front teeth were injured. He further said that one tooth had been split while the other one had been knocked out. In addition, he said he believes those physical injuries have healed.

[89] Furthermore, when asked about whether he had recalled seeing any cars travelling southbound, Gadong said he remembers seeing a bus that had been parked at the bus stop at the corner of where he was and thinks that people had been getting off the bus.

[90] In addition, Gadong said that when he had first started across the road he had been riding the bicycle between the lines of the pedestrian crosswalk. He also said there was a traffic control signal for pedestrians and a traffic light showing indications of yellow, red, and green. However, he said that the two devices changed at the same time. He further said he had watched the pedestrian signal and when he had observed the white "walking man" signal, he began to cross the road. In addition, he said that when he had first looked at the lights he said he had to wait for the light to turn green for east and west traffic and then he had to look for the "stop hand" to change to the "walking man", which is at the same time as the light on Bristol. He also said that before he had crossed he had looked at the walking man signal and observed that it was a walking man and that the light for cars for Bristol had been green. Moreover, he said he had looked at the red light first and then had looked at the pedestrian control signal.

(6) Elias Hanna, the driver of a City of Mississauga Transit bus that had been southbound on Hurontario Street in the curb lane, which had been stopped for a red light at the northwest corner of the intersection at the time the collision occurred

[91] Elias Hanna testified he is a bus driver for the City of Mississauga and has been since November of 2009. He also confirmed that he had spoken to the Peel Regional Police about the present matter.

[92] Hanna also said he had been working the early morning shift and had been driving a 40-foot Mississauga Transit bus southbound on Hurontario Street. He further said he had observed the lights for him turn amber at Bristol and Hurontario, which required him to slow down. He then said he made a full stop so he could pick up and drop off passengers. He further said he had been stopped at the bus stop that is located 10 feet behind the white line. After he stopped, he said people had gotten off his bus. He also said that both his front and rear doors were open with about 10 people in the area. He said that people also got on his bus. Moreover, he said he naturally looks to the right when people get off his bus and lowers the bus for them.

[93] While people had been unloading and loading onto his bus, Hanna said he had observed a kid on his bicycle on the northwest corner of the intersection waiting for the light. Hanna further said he had noticed that the light for Hanna had been red and then said he had observed the kid's light turn green. He said the boy on the bicycle then passed in front of the bus and then Hanna said he observed the vehicle next to him hit the boy on the bicycle when the boy had gone past the first right lane.

[94] Hanna also said he did not see the boy approach the intersection, but while Hanna's bus had been approaching the intersection was when Hanna said he had first noticed the boy on the bicycle, when the boy had already been standing on the sidewalk with the bicycle on the northwest side.

[95] Furthermore, Hanna said the width of that first right lane is roughly the width of the bus, which he said is approximately four steps. He also said the boy had been on the roadway when the mirror of the vehicle, which was a black-coloured GMC truck, had hit the boy. He further said this collision occurred on his left side when the kid had passed in front of him. In addition, Hanna said the boy had been wearing a hoodie when he had been hit by the truck's mirror.

[96] Moreover, Hanna said he had observed the truck speeding in an attempt to pass on a red light. He also said the light had been red for two to three seconds when the boy had been hit. Furthermore, Hanna said the boy had been on his bicycle within the crosswalk. Moreover, Hanna said the boy had been the first to go past at the intersection on Hanna's right side. When he observed the truck attempting to pass too late, Hanna said he tried to honk his horn. He then said he called 9-1-1. Moreover, he said he had observed the light for southbound traffic and that it had been red while the light for the kid had been green. In addition, he said that at the point when the first passenger had been getting on the bus was when he had first noticed the boy start riding his bicycle. Also, Hanna said that when he had observed the boy begin to cross the intersection, Hanna said he had been looking southbound at the boy. Moreover, he said that he had noticed the light had been red when he opened the door and that when the kid was riding his bicycle the light had still been red.

[97] Furthermore, Hanna said that it had only been the truck that had tried to pass. He also said it had been the peak hour at that time in the morning.

[98] Moreover, on a blank aerial photograph of the intersection of Hurontario Street and Bristol Road (Exhibit "6"), Hanna used a pen to mark the location of where he had stopped his bus with his initials "E.H.", which were placed on Hurontario Street in the southbound curb lane just north of the northside pedestrian crosswalk. In addition, he then marked a small "x" to show where he had observed Erwin Gadong, the boy that he had observed standing with the bicycle on the sidewalk waiting for the light, which was at the northwest corner of the intersection of Hurontario Street and Bristol Road.

(7) Joanne Ong, a driver of a motor vehicle travelling northbound on Hurontario Street that had been first in line in the northbound designated left-turn lane at the time the collision occurred

[99] Joanne Ong testified she works at a dental office. Furthermore, she said that on November 24, 2010, she had made a statement to the police and had been at the Hurontario and Bristol intersection that day.

[100] Ong also said she had been driving her car northbound on Highway 10 (Hurontario Street) and then changed lanes to go left on Bristol. She also said she had not reached the red light yet and had been at the beginning of the left-turn lane when she heard the sound of gas accelerating, at which time she had observed a pickup truck try to get past the southbound light, which had been when the accident happened. Furthermore, at the point where she had reached the left-turn lane she said she is certain the colour of her light had been amber. However, during cross-examination she revised her recollection of the event and what colour the traffic light was for the pickup truck when it entered the intersection from what she had originally given in her statement to the police on the day of the accident, by testifying that when the pickup truck had entered the intersection the light might have been red, considering that in four seconds the light should have been red.

[101] However, Ong had agreed that her memory had been fresh at the time she made her statement to the police officer who had written down her statement. Moreover, after she had read her statement, she said she signed it.

[102] Furthermore, Ong said she had been intending to drop off her son at the time. She also recalls that when she had first observed the pickup truck the colour of her light had been yellow or amber. As well, she said she had observed a bicycle on the west side where the city bus had been parked that had been dropping off or picking up passengers. She also said the bicycle had been originally on the pedestrian platform where people wait for the bus when she first had observed the bicyclist at the intersection.

[103] Ong also said she believes the colour of the traffic light for cars going northbound and southbound had been yellow and believes the colour of the traffic light for east and west traffic had been red. She further explained that if her light had been at amber then she assumes it would have been red for east and west traffic. She also said that pedestrians going east or west at the intersection have their own pedestrian light. In addition, she said she assumes the pedestrian light had been red, since it goes with the east and west lights.

[104] Moreover, during her testimony in chief, Ong said she recalls observing the truck enter the intersection and believes the truck had entered the intersection when the light had been amber. However, although she believes the light for her had been amber she also said she had not been looking at the light at the time she heard the truck accelerate or when her attention had been on the truck and the pedestrian. She further said she had pressed on her horn instantaneously because she had been afraid that the truck would not stop because of the acceleration. Furthermore, she said she had observed the collision and said the pedestrian had been in the pedestrian crosswalk at the time of the collision. She also said she had a clear view of the traffic lights because there were no cars in front of her.

[105] In addition, on a blank aerial photograph of the intersection of Hurontario Street and Bristol Road (Exhibit "7"), Ong used a red pen to mark an "X" southwest of the intersection to show the location of her daughter's school. She then marked the location of where she had been at the intersection with her initials "J.O.", which were placed in the lane closest to the centre of the northbound lanes of Hurontario Street and south of Bristol Road just before the designated left-turn lane begins. In addition, she drew a small "x" at the northwest corner of the intersection on the northside pedestrian crosswalk to indicate where she had observed the bicyclist. She further said there had been a city bus, a white car, and the truck in a line. She also drew an oval-shaped object to indicate where she had observed the white car that had been behind the bus and an "x" within a rectangle indicating where she first saw the pickup truck in the southbound curb lane of Hurontario Street behind both the bus and the white car that was beside the bus stop. When asked what she had meant as the point where the pickup truck had entered the intersection, she marked on the photograph with a big "X" a point where the intersection for her would start for southbound traffic and placed the big "X" south of the pedestrian crosswalk in line with the north curb line of Bristol Road and south of the pedestrian crosswalk.

[106] Furthermore, Ong said she had been in the left-turn lane when the bicyclist had crossed in the crosswalk. She also said that when she first saw the truck it had been stopped and then she heard the loud sound of an acceleration, which she knows to be the sound of a car accelerating because her husband used to drive a car with a V8 engine. In addition, she said that when she heard the acceleration sound her attention had been drawn to the truck, but her attention had not been on the truck until she had heard the acceleration sound.

[107] Ong also said she assumed that the lanes for southbound Hurontario were the same as for northbound Hurontario, which consists of three lanes and a left-turn lane. She also said the truck had been in the lane immediately beside the bus, which had been stopped in the right lane where passengers had been going in and out. Furthermore, she said the truck had been behind the bus and then accelerated from behind the bus and came around it. She also said she did not see any other cars come towards the south. Furthermore, she said the truck had accelerated from a stopped position to go through the light and that it had been the right side of the pickup truck that had hit the boy. She then said she had observed the boy roll over the right side mirror. Moreover, she said the cyclist had hit the right side of the hood near the front windshield and then hit the side mirror.

[108] In addition, Ong agreed with the suggestion that memory fades with time. She also said she had been near the intersection when she had first noticed the light had been amber. She also said she had been the first in line in the left lane. In addition, she said she did not come to a screeching stop and always slows down when she gets to the light, and that when she sees a yellow light she said she always slows down.

[109] Moreover, Ong said she has been at that intersection before and said the yellow light might be four seconds in duration. However, she also said that when the light turns yellow it then goes to red fast.

[110] Ong also said she starts works at 8:00 a.m., but is usually late. However, she does not look at the clock when she is driving. She also said there has been a history of accidents in her family and because her sister is now in a wheelchair, she does not rush. She further said that time had not been a factor for her that day as she has an allowance of 10 minutes to get to work. She also said that as long as she leaves her house by five minutes to 8:00 o'clock she is okay.

[111] Furthermore, Ong agreed that the intersection is always busy there for vehicles and pedestrians. She further said that students walk or are on bikes there, and that they go back and forth. She also said she pays attention to her surroundings because of what had happened to her sister. In addition, she said she pays attention to cars behind her and said she had looked at the bus only twice.

[112] Moreover, Ong said there were lots of cars on her right-hand side so she could not see the children there. However, she said when she had reached the intersection on a red light she then saw children frozen in the middle of the intersection. She also said she had been in shock at that time and did not know what to do. However, she said she did call 9-1-1 and had been told by the 9-1-1 operator to drop her son off at school.

(8) Edwin Gilberto Bonilla, a passenger sitting in the rear passenger seat of the pickup truck driven by the defendant

[113] Edwin Bonilla, while testifying through an accredited Spanish language interpreter, said he had been at the intersection of Hurontario Street and Bristol Road on November 24, 2010, as a passenger inside the motor vehicle being driven by the defendant, Benito Scetto. He also said there had been another person with them, named Carlos Manzanares, who was also one of the defendant's buddies.

[114] Furthermore, Bonilla said that he knows the defendant through his friend, Carlos Manzanares. Bonilla also said he works for the defendant occasionally, whenever the defendant needs assistance and is called to do work. He also said that he had been working for the defendant on November 24, 2010. Furthermore, he said he would work for the defendant about once a month and that he had been working for the defendant for about four months at that point. Moreover, he said that he has been in the defendant's truck before. However, after November 2010, he said he has only worked sporadically for the defendant, which has been about once a week. He further explained that in the last two months before testifying in court, he had worked approximately on three occasions for the defendant. In addition, he said he is also a friend of the defendant.

[115] Bonilla also said that on November 24, 2010, they had been travelling southbound on Hurontario, and as they got close to the traffic light, he said he suddenly noticed a bus at the corner of the intersection. He also said the traffic light had been yellow, and as they were going, someone showed up on a bicycle. He then said they had shouted at the defendant. Bonilla then said the defendant had tried to pass over to the side, but another vehicle had been beside them, and also because the defendant had a trailer that contains the machines. In order not to hit the car beside them, Bonilla said the defendant had to turn right again. However, Bonilla opined that the collision had occurred because the defendant had been unable to avoid the bicyclist and had hit the bicyclist with the mirror.

[116] Furthermore, Bonilla said the person who had been riding the bicycle had never stopped, but had continued on. In addition, Bonilla said the bicyclist had been wearing a hood and had headphones on, and also believes the cyclist never saw the truck before the defendant had hit him with the mirror and pushed him to the ground. Moreover, he believes the defendant had tried not to hit the bicyclist with the truck. After the collision, he said the defendant then went through the intersection and stopped by the gas station. In addition, Bonilla said he had been worried because he thought they had hit the cyclist with the trailer, but they had only hit him with the mirror. Furthermore, Bonilla opined that the defendant did all, or the best he could, in not hitting the bicyclist.

[117] In addition, Bonilla said that he had been seated in the back seat, but right in the middle, and could see clearly from that position. Furthermore, he said he does not normally sit in the middle in the backseat, but explained that he had moved to the middle so that he could talk to his friend sitting in the front seat.

[118] Bonilla also said the traffic light had been yellow when the defendant's truck entered the intersection and it had still been yellow when the collision suddenly occurred, and that it had been yellow all along. However, he said that when they had passed the intersection then the light became red, but he did not actually see the light turn red.

[119] Also, on a rough sketch prepared by the defendant's legal representative of the intersection of Hurontario Street and Bristol Road while Bonilla was testifying (Exhibit "8"), Bonilla drew a red line with an "X" through it to indicate where he thought the intersection began for southbound traffic and a dotted red line to indicate the location of the bus. He placed the red line with an "X" through it at a point north of the solid blue line which had been drawn by the defendant's legal representative to represent the stop line, which was north of the two blue parallel lines that went across Hurontario Street that represented the pedestrian crosswalk. There was also a blue line on the sketch drawn perpendicular to the east curb line of Hurontario Street and when asked what that blue line represented, Bonilla replied that he did not know. Then when asked about what the other two parallel blue lines on the sketch meant, he replied that those two blue lines were already drawn on the sketch, but that he did not know what they represented, and further said that he should have been given a blank sketch.

[120] It should be noted at this point that because of the confusion over the two parallel blue lines on the rough sketch marked as Exhibit "8", it was decided by the court that for fairness and to avoid any confusion, a new sketch should be prepared for Bonilla to mark up.

[121] Subsequently, Bonilla attempted a new sketch of the intersection on the backside of the document marked as Exhibit "8", which was then entered as Exhibit "9". For Exhibit "9", Bonilla drew a blue line to indicate where he thought the intersection began for southbound traffic on Hurontario Street. He placed the blue line in line with the north curb of the intersection. In addition, Bonilla said he had incorrectly drawn a line in the northeast corner of the intersection and then explained that this incorrect line had been drawn too far by him, and further said that this line did not indicate anything. However, Bonilla did not complete the sketch and explained that the accident had happened two years ago, and because memory fades, it had been difficult for him to draw the sketch today.

[122] In addition, when shown two photographs of a black truck, marked as Exhibit "10", Bonilla said he did recognize the truck and said it had been the truck that he had been in on November 24, 2010, and that it was an accurate depiction of what the truck had looked like on that day. He also said the photographs of the truck had been taken at the scene and at the time of the accident, after the truck had been brought to the other side of the street.

[123] Bonilla also acknowledged that the bottom photograph in Exhibit "10" shows a decal on the front windshield, but said that it had not blocked his view. He also said that the mirror on the truck had been damaged from the collision and that it is what had hit the cyclist on the head. In addition, he said the bicyclist did not hit the windshield because the defendant had made best efforts to avoid hitting the bicyclist. Furthermore, he said that when looking at the photograph he could not tell if there was a GPS device in the windshield, but did confirm there were three or four objects in the middle of the windshield. However, he said these objects did not block his view because the windshield is big.

[124] In addition, Bonilla said the defendant did not stop at the intersection because they had been close to the intersection when the light was yellow and then they crossed. He also said he did not know how fast the defendant had been driving when he saw the yellow light. Furthermore, he said they had not been stopped behind the bus.

[125] Bonilla also said he never spoke with the defendant after the accident and only spoke with the police, but does not recall when he gave his statement to the police. However, he also said he had been confused when challenged about not speaking to the defendant after the accident and admitted that the defendant had told Bonilla about being nervous and concerned with what happened to the boy when they were inside the truck.

[126] Moreover, Bonilla said he does not know where the bicyclist had come from because it had happened very quickly. He then reiterated that the bicyclist never stopped, despite not knowing where the bicyclist came from and that it had happened very quickly. He also opined that the bicyclist might not have stopped because the bus had blocked the bicyclist's vision. Furthermore, Bonilla opined that the bicyclist should have stopped at the intersection because the bicyclist did not have a green light. However, he also agreed that the bus had also blocked Bonilla's view of the bicyclist. When asked about being able to surmise that the bicyclist did not stop even though the bus had blocked Bonilla's view of the bicyclist, Bonilla opined that the bicyclist did not take precautions because he had crossed in front of the bus. He further said that for all the time he had observed the bicyclist, Bonilla said he never saw the bicyclist stop. However, he admitted that he had only observed the bicyclist when the collision occurred.

[127] Furthermore, when Bonilla had been asked if he had warned the defendant to avoid the bicyclist, Bonilla replied that they had shouted to be careful.

[128] In addition, Bonilla said he had looked at the bicyclist crossing and noticed that the bicyclist had been travelling directly at the truck. He also said he had observed the bicyclist hit the truck and that it had happened so suddenly. Furthermore, he said that when the driver had been trying to avoid the bicyclist was when the mirror had hit the bicyclist. Moreover, he also said he had looked at the light, then turned his head, and then saw the bicyclist. He also said that when the accident happened the light had been yellow and that the defendant had tried to avoid the bicyclist, but had hit the bicyclist. Also, he said he had quickly glanced at the traffic light, then looked to the side, and then they drove through.

[129] Furthermore, when asked if he had observed the bicyclist go across the street, Bonilla replied that he had first looked at the light and then observed the bicyclist go across the street, and that is when he told the defendant to avoid the bicyclist. And, then he said he had observed the defendant try to move over, by veering a little bit to go as far as he could go. He also surmised that if the defendant had veered all the way to the left then an accident would have happened. He further said that when the bicyclist had been hit they were already in the intersection.

[130] Moreover, Bonilla said the other vehicle alongside them had been travelling near where the trailer had been. He also said the other vehicle had stopped while they had gone through the intersection.

(9) the defendant, Benito Scetto

[131] The defendant testified he is employed in the construction industry as a heavy equipment operator. He also said he cuts grass on the side in a landscape and lawn business that he and his wife operate.

[132] In regards to his activities on November 24, 2010, the defendant said they had been cleaning up leaves that day. He also explained that the vacuum trucks had already cleaned up the leaves but that he had to clean up the leaves at one house because the owner had wanted the defendant to make an extra cleanup. Furthermore, the defendant said his friend Carlos Manzanares and Edwin Bonilla were also with him in his pickup truck. He further said he was driving a F250 4x4 pickup truck, which is his primary work truck. He also said he has a big truck with seats in the back.

[133] Moreover, in his recall of the events related to the collision with the bicyclist, the defendant said he had turned onto Highway 10 (Hurontario Street) on Britannia and had been driving southbound in the centre lane of three southbound lanes of Highway 10 and approaching Bristol. He further said that Britannia is 2 to 2.5 kilometers from Bristol. In addition, he said there is also a left-turn lane for southbound Hurontario while northbound Hurontario has three northbound lanes.

[134] Furthermore, the defendant said that as he approached the intersection in question, he said there had been a bus stopped at the bus stop in front of the light. He also said he was not in the same lane as the Mississauga Transit bus, but in the lane to the left of the bus. In addition, he said he had not been stopped behind the bus nor did he pull out from behind the bus.

[135] The defendant also said a kid then popped out on a bike, at which time the defendant said he had swerved to miss the bicyclist, but the bicyclist came into the side of his truck. He also said the bike had come out in front of the bus that had been in the right-hand lane. Moreover, he said the bike was in the intersection and on the roadway of Highway 10 (Hurontario Street) and that the bicyclist had been riding the bicycle and travelling eastbound. He also said the bicyclist had been in the northwest corner or side of the intersection and had been riding his bicycle across on the roadway, and had come pretty fast.

[136] Furthermore, the defendant said the bicyclist had collided with the truck's passenger-side fender, mirror, and door. He also said he did not see the bicyclist prior to seeing him on Hurontario Street, as the bicyclist had popped up in front of the bus. Moreover, he emphasized that the bicyclist had hit him. In addition, at the moment when the kid had popped out, the defendant said his passengers, Carlos and Edwin, had said, "Watch Out". The defendant then reiterated that he had tried to swerve left, but had been prevented from doing so because there had been a car to his left. However, he said the bicyclist had already been 3 to 4 feet into his lane and on impact the bicyclist had been in his lane. He also said the vehicle to his left had also swerved and had laid on the horn, and then that vehicle zoomed right through on the amber light.

[137] Moreover, the defendant said he did not run a red light, nor rev his engine to pick up speed, nor did he speed up, and that he had tried to miss the kid.

[138] The defendant also said that after the impact had occurred in the center of the intersection, he pulled over to the side of the street, put on his four-ways, and called 9-1-1.

[139] In addition, when shown photographs of a black truck that were entered as Exhibit "10", the defendant acknowledged that the truck shown in the photographs was his truck, but explained that those photographs had been taken that morning after the accident when he was on Bristol and not on Highway 10. He further said that he had moved his truck from the Petro Canada gas station to Highway 10 afterwards.

[140] The defendant also said there had been a couple of trimmers in the bed of his truck, as well as his salter, but that the salter was empty. In describing the top photograph in Exhibit "10", he said his salter is the yellow object. He also said he uses the salter in the winter to salt parking lots after he finishes plowing. Furthermore, he said the plastic salter takes up most of the truck's bed and estimates that it weighs 450 to 500 pounds, or less, because it is plastic. Additionally, he said he had a 6x12 foot trailer on his truck that was carrying a 32-inch Ferris hydrostatic lawn mower. Moreover, when shown the bottom photograph in Exhibit "10", he pointed out that the mirror on his truck had been damaged and that there were strokes that were visible above the front wheel well and to the left of the wheel well. He also said he did not make a claim with his insurance company for the damage to his truck because he was afraid that his insurance would go up, which he said went up in any event. In addition, he said he had decided to fix the damage to his truck himself and said the mirror cost $500 while the fender had a break on it so it cost him another $500.

[141] Furthermore, the defendant said the intersection had traffic lights and that he had seen the lights when he was driving. He further said that as he approached Bristol he first observed the light had been green and then observed it change to amber. In addition, he said he had been going 55 to 60 and had been probably 10 to 12 feet from the white line and that the light had been amber when the collision occurred. He also said the collision occurred in the proper crosswalk and that he had observed the bicyclist by the time Carlos and Edwin had given their warning. He further said that everything had happened in a split second: the cyclist popped out, the light went yellow, the defendant swerved to the left, and the defendant hitting the bicyclist. Moreover, he said that when the light had gone to amber was when he had first observed the bicyclist. In addition, he said he had observed an amber light and after the impact he had observed the light go to red.

[142] Moreover, the defendant said the light had changed from green to yellow, and when he had been on the solid white line that is before the intersection, the light had been yellow. Moreover, when asked why he did not stop for the yellow light, the defendant replied that the light had been green, and it then turned yellow at the last minute when he had been too close to the white line.

[143] The defendant also said he could not see the kid before the defendant's pickup truck had hit him, nor could he stop when his passengers, Carlos and Edwin, had said to look out.

[144] In addition, the defendant said he had given a statement on that day to a female police officer at the accident scene when he was in the camper that the police had set up. Then, after having had an opportunity to review all three pages of his statement while in the witness stand, the defendant confirmed that he had said in his statement to the police that Edwin Bonilla had been in the rear passenger seat. However, the defendant explained that Edwin Bonilla had been in the rear passenger seat, but had been talking to Carlos Manzanares and had been slouched over and had leaned over with his head in the middle. When asked why he did not give that answer when he had been first asked, the defendant said that he did not see the importance of that.

[145] In further clarification of Edwin Bonilla's seating position in the truck, the defendant said that Edwin had been behind the passenger seat with his head to the side, and that Edwin always sits this way when they are together. Then when the defendant was asked how he would know that Edwin Bonilla had been sitting in this particular posture if the defendant had been driving and looking ahead, the defendant replied that Edwin always sits this way. Furthermore, the defendant said that Edwin Bonilla had been sitting in the middle of the back seat closer to the passenger side and hunched over so that Bonilla could talk to Carlos. He further said there is no hump in the middle of the back seat. He also said Edwin and Carlos spoke to each other in Spanish, while the defendant had been paying attention to the roadway. However, the defendant said he does not speak Spanish.

[146] Moreover, in regards to the work relationship between the defendant and Edwin Bonilla, the defendant said that Edwin Bonilla works for him off and on because the work is not steady, and that Edwin had started working for the defendant 6 to 8 months prior to November 24, 2010, on a shed that the defendant was building on his house, but does not remember the month Edwin actually started working for him. He further said that Edwin works for him about once a week and sometimes only once in one month to one month and a half. Also, he said that Edwin had worked for him for approximately a half-dozen times prior to the accident. However, he said that after the accident Edwin has not worked for him again, although he said that Carlos Manzanares and Edwin Bonilla had come to help him put in shelves in his shed in January. He also said that Edwin does not receive money for working for the defendant, as Edwin is a friend and had come out to help him and Carlos. He then explained that Carlos Manzanares is also the father of the defendant's godson. Moreover, the defendant said that he helps Edwin out with clothing and food, and also had helped Edwin find a job. In addition, he said that Edwin is never forced to come to help the defendant. Furthermore, he said that Carlos Manzanares is not just a friend, but more like family, and that Edwin is a friend but seldom hangs out with Edwin now. He further said that Edwin works at Precise Park Link, which is the same company the defendant works for as an equipment operator, but that Edwin works in a different area and for a different crew. He also said that he had gotten Edwin the job there.

[147] In addition, when asked what objects were hanging on the rear-view mirror in his truck, which could be seen in the lower photograph of his truck shown in Exhibit "10", the defendant replied that they were his miniature boxing gloves and an air freshener, which was an Italian flag. He further said the yellow object in the photograph was his baseball cap. Then, on the bottom photograph of Exhibit "10", the defendant drew an arrow to indicate where Edwin Bonilla had been seated in the rear seat.

[148] Moreover, when questioned about why he had testified that he had gotten onto Highway 10 (Hurontario) at Britannia when he had stated in his statement to the police on the day of the accident that he had gotten onto Highway 10 from Mavis, the defendant agreed that it had been a memory problem.

[149] Finally, the defendant said that he needs his driver's license for work and is concerned with his insurance rates and his civil liability.

4. APPLICABLE LAW

[150] The "red light – fail to stop" offence is set out in s. 144(18) of the Highway Traffic Act, R.S.O. 1990, c. H.8, where it states that:

Red light

144(18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown.

[151] Furthermore, the following definitions contained in s. 1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, 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;

[152] In addition, besides the term, "intersection", being generally defined in s. 1(1), it is more specifically defined in s. 144(1) for the purposes of offences set out in s. 144 of the Highway Traffic Act, and provides that where there is a pedestrian crosswalk indicated by markings on the roadway at an intersection then the pedestrian crosswalk also forms part of the intersection:

Traffic control signals and pedestrian control signals

144(1) In this section,

"intersection" includes any portion of a highway indicated by markings on the surface of the roadway as a crossing place for pedestrians; ("intersection")

[153] Moreover, where there is a roadway marking present at an intersection controlled by automated traffic lights, such as a painted white-coloured stop line on the roadway, then s. 144(5)(a) of the Highway Traffic Act, R.S.O. 1990, c. H.8, requires the motorist to stop their motor vehicle at that stop line if they are facing a red traffic light at that intersection:

Where to stop – intersection

144(5) A driver who is directed by a traffic control signal erected at an intersection to stop his or her vehicle shall stop,

(a) at the sign or roadway marking indicating where the stop is to be made;

(b) if there is no sign or marking, immediately before entering the nearest crosswalk; or

(c) if there is no sign, marking or crosswalk, immediately before entering the intersection.

[154] Furthermore, in regards to what a motorist is required to do when facing a yellow or amber traffic light, s. 144(15) of the Highway Traffic Act, R.S.O. 1990, c. H.8, mandates that a motorist is required to stop their vehicle if they can do so safely, but if they cannot stop safely then they are permitted to proceed through the intersection with caution. However, this section does not mean that a motorist can proceed through the intersection automatically or routinely just because they are facing a yellow or amber light. In other words, proceeding through a yellow light should be the exception and not the norm for a motorist:

Amber light

144(15) Every driver approaching a traffic control signal showing a circular amber indication and facing the indication shall stop his or her vehicle if he or she can do so safely, otherwise he or she may proceed with caution.

[155] In addition, the penalty upon conviction for contravening s. 144(18), as of November 24, 2010, is contained in s. 144(31.2) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which on that date set out a minimum fine of $150 and a maximum fine of $500:

Penalty for disobeying red or amber light

144(31.2) Every person who contravenes subsection (15) or (18) is guilty of an offence and on conviction is liable to a fine of not less than $150 and not more than $500.

5. ISSUES

[156] In determining whether the Crown has proven beyond a reasonable doubt that the defendant had committed the "red light – fail to stop" offence, the following questions need to be resolved or considered:

(a) Has the Crown proven beyond a reasonable doubt that the defendant has committed the actus reus of the offence?

(b) What evidence is there, if any, that proves the defendant's pickup truck had not yet reached the white stop line when the traffic light he was facing had turned to a red indication?

(c) What evidence is there, if any, that proves the defendant's pickup truck had crossed the white stop line when the traffic light he was facing had been showing a yellow indication?

(d) What evidence is there, if any, that proves the bicyclist had proceeded onto the pedestrian crosswalk when the pedestrian signal for the bicyclist had been showing a "walk" signal?

(e) Have the witnesses who testified been credible?

6. ANALYSIS

(A) WHAT COLOUR WAS THE TRAFFIC LIGHT FOR THE DEFENDANT WHEN THE DEFENDANT'S PICKUP TRUCK CROSSED THE STOP LINE?

(1) Type Of Offence

[162] The "failing to stop for a red light" offence set out in s. 144(18) has been classified by the Court of Appeal for Ontario to be an absolute liability offence: R. v. Kurtzman, [1991] O.J. No. 1285 (QL), 4 O.R. (3d) 417 (O.C.A.), at paras. 15, 34, and 35. Ergo, fault or negligence is not an element of the offence contained in s. 144(18) and the Crown only has the burden to prove the defendant has committed the actus reus of the offence set out in s. 144(18) beyond a reasonable doubt, and is not required to prove any mental or fault element:

It is common ground that the Highway Traffic Act is a public welfare statute, aimed at ensuring public safety through the orderly control of traffic. Therefore, it is clear that, pursuant to Sault Ste. Marie, supra, offences created by the Act are presumed to be ones of strict liability, rather than absolute liability, unless there is clear legislative direction to the contrary. Whether this presumption has been displaced with respect to s. 124(16) depends on four primary considerations, as enunciated in Sault Ste. Marie: (i) the over-all regulatory pattern adopted by the legislature; (ii) the subject-matter of the statute; (iii) the importance of the penalty; and (iv) the precision of the language used.

The words used in s. 124(16) are mandatory and clearly do not anticipate a defence of due diligence or reasonable care being raised. This is particularly so in light of the fact that other provisions of Part IX of the Act do expressly contemplate that an accused may be exculpated where reasonable and prudent conduct has been demonstrated. Such choice of language in other provisions and its absence from the provision in question indicate that the legislature intended to create an offence of absolute liability.

In my view, the legislature had a similar intention with respect to s. 124(18) [now 144(18)]. It may be that the language of s. 124(18) [now 144(18)], providing that an emergency vehicle "may proceed without a green indication being shown if it is safe to do so" does anticipate that any inquiry into a driver's assessment of whether it is safe to proceed may be tempered by a reasonableness standard. That is, a defence of due diligence may be available to those who, after stopping, exercise all reasonable care to ascertain whether it is safe to proceed. However, the appellant in this case failed to bring his vehicle to a full stop. In my view, the language of at least that part of the provision is mandatory and absolute and not subject to an inquiry into the reasonableness of the driver's efforts. As noted earlier, the driver either stops or he does not. In this case, he did not and, therefore, in my view, he contravened the provision.

[163] Accordingly, to obtain a conviction for this absolute liability offence, the Crown is only required to prove beyond a reasonable doubt that the traffic light for southbound traffic on Hurontario Street at the intersection of Hurontario Street and Bristol Road, in the City of Mississauga, on November 24, 2010, at 7:52 a.m. had been showing a red indication when the defendant's pickup truck was still north of the stop line for southbound traffic and that the defendant did not stop his vehicle for that red light prior to the vehicle reaching or crossing the stop line.

(2) Credibility And Reliability Of Witnesses' Observations And Testimony

[164] As indicated, the outcome of this trial will come down to credible and reliable testimony. For a trier of fact, it is a challenging task to assess the credibility of a particular witness or of the veracity of the witness's account of an event. However, courts have tried to lessen this difficulty by developing a rational approach for assessing credibility and the veracity of that specific account. One such approach for assessing the veracity of an account or version of an event was adopted by Schroeder J.A. of the Ontario Court of Appeal, at para. 22, in Phillips et al. v. Ford Motor Co. of Canada Ltd. et al., [1971] 2 O.R. 637, from the reasoning in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), that had based the assessment of the truth of a witness's account on its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions:

… While credibility is one test to be applied in the evaluation of testimony, it is by no means the only test, nor is it, in all cases, the most significant one. That is especially so in the present case in which there is such an enormous volume of unanswered opinion evidence given by highly reputable and well-qualified witnesses against which the plaintiffs' evidence must be weighed. One of the most enlightened guides on this aspect of a trial Judge's functions appears in a judgment of the late O'Halloran, J.A., delivered in the British Columbia Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 354. What the learned Jurist there stated is so apposite in the present case that I feel impelled to quote the following extract from his reasons which appear at pp. 356-8:

If a trial Judge's finding on credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.

[165] Therefore, in considering whether particular aspects of a witness's testimony is to be believed, those aspects must accord with the preponderance of probabilities, which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[166] Moreover, in their textbook, The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011), authors Paciocco and Steusser, at pp. 32 and 33, in their discussion about the believability of evidence and the difference between the meaning of reliability and the credibility of a witness's evidence, have succinctly explained that credibility refers to the honesty of the witness while reliability describes the accuracy of evidence. Moreover, they emphasize that evidence which shows that a witness has been corrupted, has a motive to mislead, or has discreditable character will be relevant to credibility. And, they further explain that reliability is affected by a witness's ability to properly observe, to properly recall, and to properly communicate their observations of an event:

Assume a witness testifies that the robber with the gun was the person with a face tattoo of a stream of tears. If the trier of fact is concerned that the witness may be lying, or may be mistaken about this, the evidence may be given little if any weight. Believability affects weight.

When deciding whether evidence is believable, legal theory draws a helpful distinction between "credibility" and "reliability." "Credibility" is about the honesty of the witness. Evidence showing that a witness has been corrupted, has a motive to mislead, or has a discreditable character will be relevant to credibility. For example, evidence that the witness identifying the robber was an accomplice who has made a deal with the police could cause a trier of fact to give the testimony little weight.

"Reliability" is the term used to describe the accuracy of evidence. It can relate to the accuracy of a scientific or forensic process, but when applied to witnesses, reliability captures the kinds of things that can cause even an honest witness to provide inaccurate information. The reliability of witness testimony can be affected, for example, by (1) inaccurate observations, (2) memory problems, or (3) a failure by the witness to communicate observations accurately. Our witness may, for example, have been too far from the scene to conclude dependably that it was the tattooed man who held the gun, or he may not recall sufficient details of the event to instill confidence that he is right about this. Although credible, his evidence will be given little weight because it is unreliable.

(3) Did Anyone See The Defendant's Pickup Truck Proceed Across The Stop Line For Southbound Traffic When The Traffic Light Had Been Red For The Defendant?

[167] Even though several Crown witnesses did testify about the traffic light for the defendant being red, only one witness actually testified to having observed the traffic light for southbound traffic on Hurontario Street being red before the defendant's pickup truck had crossed the stop line and then collide with the bicyclist in the pedestrian crosswalk. That testimony, which I find credible and reliable, came from Elias Hanna, the bus driver who had been operating the City of Mississauga Transit bus that had been stopped in the southbound curb lane just before the southbound stop line and that had been letting off and picking up passengers from the bus stop located in the northwest corner of the intersection. Specifically, Hanna had testified that the traffic light for southbound traffic had been red for two to three seconds when Erwin Gadong had been hit and that he had also observed the truck speeding in an attempt to pass on the red light. Hanna also testified that he had observed the light for southbound traffic had been red while the light for Gadong had been green.

[168] Moreover, the Crown witnesses that had said the traffic light for the defendant had been red, but who did not actually look at the southbound traffic light or observe the colour of the southbound traffic light at the critical point, came from the testimony of Anthony Franceschi and Natalie Ianniello. For Anthony Franceschi, he had initially testified that he had observed the colour of the north-south traffic light for the pickup truck that had collided with Erwin Gadong had been red and that there were also two or three vehicles that were going in the same direction as the pickup truck that had stopped for the red light, even though the pickup truck had not stopped. However, he then agreed during cross-examination that since he had been looking straight ahead the whole time, he did not see what the colour of the traffic light had been for the pickup truck when it had crossed the stop line, or at any other time. And, for Natalie Ianniello, she had commented that when she had begun to cross in a westerly direction she had a green light and that cars had a red light or possibly a yellow light, but that she had not seen the traffic light for Hurontario. As such, the testimony from Anthony Franceschi that the traffic light for the pickup truck had been red is not reliable nor is the testimony from Natalie Ianniello that the cars had a red or possibly yellow reliable, since neither had actually observed the colour of the northbound or southbound traffic light at the critical point when the defendant's pickup truck had crossed the stop line. However, the failure of Franceschi and Ianniello to observe the traffic light for northbound or southbound traffic on Hurontario does not undermine their credibility on their other observations.

[169] As for the remaining Crown witnesses, Karissa Persaud, Erwin Gadong, and Dino DiBernardo, they also did not testify about seeing the colour of the traffic light for southbound traffic on Hurontario Street when the defendant's pickup truck had crossed the stop line.

[170] Furthermore, there was also testimony from a defence witness regarding the southbound traffic light being red that needs mentioning. That evidence came from Joanne Ong, who had initially testified about the defendant entering the intersection on a yellow or amber light, but then changed her testimony during cross-examination by the Crown, and said that the traffic light for the defendant should have been red because four seconds had elapsed. However, Ong's testimony that the traffic light for the defendant should have been red is more of an assumption on her part than an actual observation made by her, and as such, is not a reliable observation from Ong that the traffic light in question had been red when the defendant's pickup truck had crossed the stop line.

(4) Is There Circumstantial Evidence From Which It Could Be Inferred That The Defendant's Pickup Truck Had Crossed The Stop Line Only After The Southbound Traffic Light Had Been Showing A Red Indication?

[171] Although there is only one witness who gave direct evidence about observing the defendant's pickup truck crossing the stop line on a red light, there is also circumstantial evidence before the court from which the same can be inferred. That circumstantial evidence includes evidence that is based on Karissa Persaud standing halfway or near halfway in the intersection when she heard a horn honking and then seeing a fast-moving truck go past; evidence of Dino DiBernardo hearing a loud bang after he had moved his vehicle forward on a green light for Bristol Road; and evidence pertaining to the logical position of the defendant's truck in relation to the position of Erwin Gadong in the crosswalk that is based on the timing and duration of the phases of the traffic lights at the intersection in correlation to the occurrence of events and positions of witnesses at the intersection during the time of the collision.

(a) the horn honking event

[172] Joanne Ong, the driver of the vehicle travelling northbound on Hurontario Street, had said that after she had observed the pickup truck hit the bicyclist she had immediately honked her horn to warn others in the intersection about what she had just seen happen.

[173] In addition, Karissa Persaud, who had been walking westward in the southside pedestrian crosswalk, had testified that when she had made it out about halfway or just before halfway into the intersection, she heard a lady honk her horn, which then caused everyone to freeze, including herself. Furthermore, she said that everyone had been frozen at that moment of the honking. She also said she then took a quick view of the intersection and looked to her right and had noticed someone lying on the street and then observed a truck pull across the street, just stopping after the intersection at the southwest corner of the intersection. She also said the truck had gone by her pretty fast and that it had been hard to see the truck because it had been going so fast. However, she also said she did not observe the pickup truck in the intersection.

[174] Moreover, in regards to the sequence and duration of the phases of the traffic lights at the intersection, the green light for Persaud to proceed west across Hurontario Street would not have come on until 2.5 seconds after the traffic light for southbound Hurontario Street had changed to a red light, since there is a 2.5 second all-red phase for all directions of traffic at the intersection.

[175] Thus, when Karissa Persaud had heard the honking of a horn she was already halfway or nearly halfway into the intersection, which logically puts the time at which the collision had occurred close to the point of time after Persaud had received a green light to enter the pedestrian crosswalk, considering that Persaud was already a significant distance into the pedestrian crosswalk when she heard a horn honking that had caused her to stop, and which then caused her to look around the intersection and then observe someone lying on the street and then observing a fast-moving truck go past her and stop at the southwest corner. However, Persaud, had also testified that it had taken her about 7 seconds after receiving the green light to proceed to reach the halfway or near halfway point in the intersection where she had stopped. As such, Persaud's testimony would contradict the scenario that the defendant's pickup truck had crossed the stop line when the southbound traffic light would have just turned yellow or amber from a green light, since the timing and the duration of the phases of the traffic lights at the intersection would not coincide with where Persaud had been stopped and standing in the intersection after she had heard a horn honk and then seeing a fast-moving truck go past her and stop at the southwest corner.

[176] Furthermore, based on Persaud's testimony that it had taken her 7 seconds to reach the halfway or near halfway point in the intersection, then it would have also taken the defendant's pickup truck about 9.5 seconds after the southbound traffic light had turned red to just reach the southside crosswalk, near where Persaud would have been standing when she had just heard the horn honking and then observe the fast-moving truck go past her. Hence, the 9.5 seconds would be comprised of the 2.5 seconds that it would have taken for Persaud's pedestrian signal light to turn green after the traffic light for southbound traffic had turned red and the 7 seconds it would take for Persaud to reach the halfway or near halfway point in the intersection where she would hear the horn honking that would cause her to stop and then observe a fast-moving truck go past her and stop at the southwest corner of the intersection.

[177] Moreover, in light of the sequence and duration of the traffic light phases at the intersection, Persaud's testimony further contradicts the defendant's time line about crossing the stop line just as the southbound traffic light changed from green to yellow. In respect to the veracity defendant's time line, his pickup truck would have had nearly 4 seconds of the amber light phase plus the 2.5 seconds for the all-red light phase, which totals about 5.5 seconds to 6.5 seconds of time, to have collided with Erwin Gadong in the northside pedestrian crosswalk and then travel to the southwest corner of the intersection before Persaud's green light would have even come on for Persuad to enter onto the pedestrian crosswalk and before the 7 seconds of time that would have elapsed for Persaud to walk to the halfway or near halfway point in the intersection so she could hear a horn honk. Hence, the discrepancy between the defendant's time line and Persaud's time line is further increased in duration when taking into account that it would take 7 more seconds after Persaud's light to proceed had changed to green for Persaud to walk to the halfway or near halfway point in the intersection before Persaud would have observed the fast-moving truck go past her and then stop at the southwest corner of the intersection. Moreover, from the earliest of the defendant's timeline at the beginning of the yellow light phase, which lasts about 4 seconds, to the latest of Persaud's timeline of seeing the pickup truck go past and stop at the southwest corner, would roughly amount to 13.5 seconds. This 13.5 seconds would also roughly represent the discrepancy of time between when the defendant's truck would have reached the southside pedestrian crosswalk based on the defendant's timeline and when Persaud would have observed the defendant's pickup truck go past Persaud, as she was stopped in the southwest crosswalk about halfway or near hallway in the intersection, which is based on Persaud's timeline and its harmony with the phases and duration of the traffic lights at the intersection.

[178] Therefore, based on Persaud's account of where she had been in the intersection when she heard the horn honking, then the point at which the defendant's truck had crossed the stop line would then have to be logically on a red light, since the defendant's pickup truck would not have collided with Erwin Gadong until about 9.5 seconds after the southbound traffic light had turned red, considering that Persaud would have only entered onto the intersection after the southbound red light had been red for 2.5 seconds plus the 7 seconds that it would have taken for Persaud to walk to the halfway or near halfway point of the intersection where she heard a horn honking, and then seeing a person lying on the road, and then seeing the fast-moving truck go past her and stop at the southwest corner.

[179] As such, based on Persaud's testimony about where she had been standing in the intersection at the moment of the horn honking and the time it would take her to walk to the halfway or near halfway point in the intersection, would logically place the defendant's pickup truck still north of the southside pedestrian crosswalk where Persaud would have stopped, roughly at 7 to 9.5 seconds after the southbound traffic light had turned to a red light, which would easily put the defendant's pickup truck still north of the stop line when the southbound traffic light had turned red, considering there is no evidence that the defendant's truck had been travelling between the northside pedestrian crosswalk and southside pedestrian crosswalk at a slow speed.

(b) Dino DiBernardo hearing a bang after he moved his motor vehicle forward

[180] For this circumstantial evidence, Dino DiBernardo had testified that after the light had turned green for him to make his left turn, he had nosed his car forward, and as he moved his car forward, he said he then heard a loud bang, then looked to his right, and then observed a bike lying on the ground and a truck flying through the intersection. He then said he completed his left turn and called 9-1-1. Moreover, he then said that a truck with a flatbed with lawn equipment had pulled over on Highway 10 (Hurontario Street).

[181] DiBernardo also said that while he had been waiting for his traffic light to change, he did not see any traffic from north to south go through the intersection.

[182] Ergo, based on DiBernardo's testimony, the collision would have occurred at a point after DiBernardo's traffic light for westbound Bristol Road had changed to green and after DiBernardo had moved his vehicle forward. And, since the northside pedestrian crosswalk is located close to the stop line for southbound traffic on Hurontario Street, as shown on the aerial photographs of the intersection entered as exhibits, and as the collision between the defendant's pickup truck and Erwin Gadong had occurred in the pedestrian crosswalk, then DiBernardo's testimony that he had heard a loud bang after he had a green light and after he had started moving his vehicle forward, and then seeing a bicycle lying on the ground and a truck flash or streak by, would indicate that the collision occurred after the traffic light for westbound Bristol Road had changed to a green light and after the southbound traffic light had been red for at least 2.5 seconds.

[183] As such, DiBernardo's testimony would also contradict the scenario that the defendant's pickup truck had crossed the stop line when the southbound traffic light would have just turned yellow or amber from a green light, since the timing and the duration of the phases of the traffic lights at the intersection would not coincide with when DiBernardo had heard the loud bang after DiBernardo had received a green light to move his motor vehicle forward, nor with DiBernardo seeing the flash of a vehicle moving past after hearing the loud bang. As such, DiBernardo's account would logically put the point at which the defendant's pickup truck had crossed the stop line to be after the green light had come on for DiBernardo and after DiBernardo had begun moving his vehicle forward, and after the southbound traffic light had been red for at least 2.5 seconds.

[184] Therefore, after considering that there is a 2.5-second all-red phase for the traffic lights at the intersection, then DiBernardo's traffic light would not have turned green until 2.5 seconds after the southbound traffic light for Hurontario Street had turned red. As such, based on DiBernardo's testimony about hearing a loud bang after he had moved his vehicle forward after receiving a green light would put the defendant's pickup truck still north of the stop line when the southbound traffic light had been red, since the pedestrian crosswalk where Erwin Gadong had been crossing in is located roughly a meter south of the stop line and the defendant's pickup truck had been seen going fast through the intersection, and since it would have only taken a fraction of a second for the defendant's pickup truck to travel the distance between the stop line and the northside pedestrian crosswalk.

(c) the position of the defendant and Erwin Gadong based on the duration and phases of the traffic lights

[185] In most cases, the occurrence of specific events at the intersection can be verified or logically determined by considering the duration and phases of the automatic traffic lights at the intersection in conjunction with the position or location of people or vehicles around the intersection and the occurrence of other events. For this case, the duration and phases of the automatic traffic lights will confirm or assist in the determination of whether the defendant's pickup truck had crossed the stop line on a red light or on a yellow light and whether Erwin Gadong had entered onto the pedestrian crosswalk after the pedestrian signal for Gadong would have changed to a "walk" signal.

[186] However, the two scenarios at issue in this case, whether the defendant's pickup truck had crossed the stop line on a yellow light and whether Erwin Gadong had only entered onto the pedestrian crosswalk after the pedestrian signal for Gadong had been showing a "walk" signal, are mutually exclusive. In other words, the two scenarios at issue are unable to be both true at the same time. In addition, their mutual exclusivity are based upon the presumption of regularity and based on the policy reason of safety and the protection of the public using the intersection. In particular, it can be logically presumed that the sequence and phases of the traffic lights at the intersection would not be designed or set up by the municipality so as to make the intersection unsafe or dangerous to motorists and pedestrians using or crossing at the intersection. For example, the traffic lights would not be sequenced so that there would be a green light for both Hurontario Street and Bristol Road at the same time, because logically, having green lights being on at the same time for both the east-west and the north-south directions would cause a very dangerous and unsafe situation. Therefore, the sequence of traffic lights at an intersection clearly would not be designed to be unsafe. And, it is this premise that would be the basis for finding that the sequence of automatic traffic lights at an intersection would not be designed to be unsafe, but designed and sequenced for protecting the public, and that the erection of automatic traffic lights at an intersection to control traffic and pedestrians for all directions of the intersection would be presumed to be regular and erected to protect the public.

[187] Consequently, one protection for pedestrians or vehicles crossing Hurontario Street would be the 2.5 second all-red phase of the traffic light sequence that applies to all directions of the intersection, which would provide that additional safety factor to protect pedestrians or vehicles travelling across Hurontario from colliding with vehicles still entering the intersection on a stale yellow or amber light, by ensuring that pedestrians and vehicles travelling across Hurontario Street do not begin or enter into the intersection until 2.5 seconds have elapsed so the intersection could or would be likely cleared of vehicles travelling on Hurontario Street. Moreover, the yellow light phase which proceeds the all-red phase is also designed to be an earlier level of protection, since s. 144(15) also requires motorists to stop when facing a yellow or amber light when they can do so safely, otherwise they are permitted to proceed through the intersection with caution. Of course, this does not mean that a motorist can speed up to make the yellow light, as this would not be an act of caution.

[188] As for the duration of the yellow or amber light phase, Joanne Ong had testified that she had travelled through the intersection previously and said the yellow or amber light phase is about 4 seconds long, which is typical for the yellow-light phase.

[189] As such, if Erwin Gadong had entered onto the pedestrian crosswalk on the northside of the intersection only after Gadong had received the pedestrian signal to "walk" across Hurontario Street, then logically, the defendant's truck would not have crossed the stop line on a yellow or amber light, but necessarily on a red light, since the sequence of lights would not be so designed as to place a pedestrian crossing Hurontario Street into the direct path of a southbound vehicle still crossing the stop line on a yellow or amber light because of the 2.5 second all-red phase that is designed to allow vehicles traveling north and south on Hurontario Street to clear the intersection before vehicles and pedestrians travelling across Hurontario are allowed to enter the intersection.

[190] Moreover, if the pedestrian light had turned to the "walk" signal before Erwin Gadong had entered onto the pedestrian crosswalk, where the "walk" signal would only logically come on after the 2.5 second all-direction red phase finishes, and where the all-red phase only comes on after the roughly 4-second amber light phase for southbound Hurontario finishes, plus the time it would take for the Gadong to begin his movement from a stationary position from the westside curb and to cross the width of the southbound curb lane to reach the middle southbound lane, which would be roughly a second of time, then roughly 3.5 seconds would have to elapse from the moment the southbound light had turned red until the moment Gadong would have reached the middle lane.

[191] Hence, if the defendant, as he had testified about, had crossed the stop line just as the southbound traffic light had changed from green to yellow, and if Gadong had not entered the pedestrian crosswalk until the pedestrian "walk" signal had come on permitting Gadong to proceed, the duration of the traffic light sequences from when the southbound traffic light had first turned yellow to the moment Gadong had reached the middle lane in the crosswalk would be approximately 6.5 to 7.5 seconds.

[192] This relatively long period of 6.5 to 7.5 seconds between the southbound traffic light turning yellow, when the defendant contends he had crossed the stop line near the beginning of the yellow phase of the southbound traffic light, and Gadong reaching the middle lane after only entering the crosswalk after Gadong had received a "walk" signal, if both scenarios had actually occurred, would show that these two scenarios could not be true at the same time, considering that in 6.5 to 7.5 seconds after the defendant's truck would have crossed the stop line at the beginning of the yellow phase would mean that the defendant's pickup truck would have likely passed through the width of Bristol Road and be completely past Bristol Road before Gadong could have even entered onto the crosswalk and reach the middle southbound lane. Hence, since those two events could not occur at the same time, then if Gadong had entered onto the pedestrian crosswalk only after Gadong had received a pedestrian "walk" signal, then logically the defendant's truck could not have crossed the stop line on a yellow or amber light, but only on a red light that had been at least red for 2.5 seconds.

[193] In particular, if the pedestrian signal for Gadong had turned to the "walk" signal before Gadong had actually begun to cross Hurontario Street, which only occurs after a 2.5 second all-direction red phase finishes, plus the time it would take for Gadong to reach the middle southbound lane from the westside curb after the pedestrian light comes on, then it would be impossible that the southbound traffic light could have still been yellow for the defendant when his pickup truck had crossed the stop line.

[194] Moreover, the logical problem or error that results from the defendant's effort to move the point at which his pickup truck had crossed the stop line to an earlier part of a traffic light phase or phases, also undermines the defendant's credibility. As such, this scheme being used and employed by the defendant to place his vehicle at the stop line at an earlier point in the traffic light phases or sequences in order to avoid liability is also being used to his detriment, and is what this court coins as the "defence of the different time zone".

[195] In addition, the defendant's testimony is further exacerbated by the impossibility of the two events at issue occurring at the same time, of the defendant's pickup truck crossing the stop line on a yellow light and Erwin Gadong entering the pedestrian crosswalk only after Gadong had received a "walk" signal to proceed.

(d) defence of the different time zone

[196] In his defence to the red-light charge, the defendant had testified that when his pickup truck had crossed the stop line the southbound traffic light had been just changing from a green light to a yellow light. However, the Crown contends the traffic light for the defendant when the defendant's vehicle had crossed the stop line had already been showing a red indication. Hence, the defendant is relying on a defence which this court had coined in R. v. Lacroix, [2011] O.J. No. 2332 (QL) (O.C.J.), as the "defence of the different time zone". In Lacroix, this court held at para. 139, that this defence usually arises in a "fail to stop for a red light" charge in which the accused proffers testimony about crossing a stop line or entering the intersection on a traffic light phase that is earlier than the phase for which the charge is based on and could affect the accused's credibility because of the logical error made by the accused with the resulting location of the accused's motor vehicle in relation to the duration of a particular traffic light phase:

As indicated at the outset, this trial highlights the use of the "defence of the different time zone" by the defendant. This defence usually arises in "red light – fail to stop" charges, where an accused faces evidence that tends to show the accused did not stop for a red light or that he continued through the intersection against a red light. When faced with this evidence that potentially proves the red light offence, an accused with concerns about civil law suits, demerit points, or insurance premiums, will invariably put forth the defence of the different time zone, in which they usually do not testify about entering the intersection on an amber light, but instead push the phase or sequence of the traffic light back to the green light phase, forgetting that the amber light phase between the green and red phases can last for three to four seconds. Thus, depending on the reliability or trustworthiness of the prosecution's evidence of where that accused's vehicle was at the time the traffic light had changed to red, what really undermines an accused's credibility or creates an implausible or illogical factual scenario, when an accused claims to have entered the intersection on a green light where the evidence otherwise indicates a red light, is that for the green light assertion to be bona fide then that accused's vehicle would have to be a substantial distance away or significantly further along on the other side of the intersection so that the accused in this scenario would not have even been in the same intersection when the traffic light changed to red or that it be possible for any witness to have even seen the accused's vehicle at the intersection because the vehicle would have been a block away when the light turned red. Or, for that matter, for the vehicle to still be in the same time zone as the other witnesses who were at the intersection!

[197] And, as I explained in R. v. Lacroix, when an accused, such as the defendant did in this case, uses the defence of the different time zone as their defence for failing to stop for a red light that also contradicts the credible testimony of other witnesses at the intersection, as to the occurrence of events or positions of witnesses or vehicles, it would then make the accused's testimony self-serving and incredible.

(5) Did Anyone See The Defendant's Pickup Truck Proceed Across The Stop Line For Southbound Traffic When The Traffic Light Had Been Yellow For The Defendant?

[198] As for evidence of the defendant's pickup truck not having crossed the stop line on a red light, but on a yellow light, there is the testimony from the defendant himself and from Edwin Bonilla, who had been a passenger sitting in the rear passenger seat of the defendant's pickup truck, that the defendant's pickup truck had crossed the stop line or had entered the intersection on a yellow or amber light, and that the defendant could not have stopped his pickup truck before the stop line because the traffic light had changed to yellow when the pickup truck had been too close to the stop line.

[199] In particular, the defendant had testified that he had crossed the stop line just as the traffic light had turned to yellow from green. Furthermore, he also testified the traffic light had been amber for him when he had entered the intersection and that it had only turned to red after the collision had occurred. However, Bonilla's testimony was not about the defendant's pickup truck crossing the stop line on a yellow light, but had been about the defendant's truck entering the intersection on a yellow light.

[200] In addition, although the defendant's witness, Joanne Ong, had testified that she had observed the defendant's vehicle enter the intersection on an amber light in examination-in-chief, she was not as certain under cross-examination and reasoned that the defendant should have entered the intersection on a red light after four seconds. Moreover, Ong also indicated on the aerial photograph of the intersection that she believed the intersection for southbound traffic commenced at the north curb line of the intersection, which is incorrect, since s. 144(1) of the Highway Traffic Act specifically states that the intersection includes the pedestrian crosswalk where there is such a crosswalk and that the defendant by virtue of s. 144(5)(a) is legally required to stop his pickup truck at a stop line, if such a road marking is present. As indicated earlier, Ong's observations and testimony about what colour the traffic light had been when the defendant's pickup truck had entered the intersection is not reliable.

[201] In short, Ong's testimony that the traffic light had been yellow is not reliable since she had changed her testimony during cross-examination while her testimony that the light should have been red after 4 seconds is not reliable since this is not an observation, but an assumption about the colour of the light.

[202] In addition, Natalie Ianniello had testified that when she had a green light to cross Hurontario the cars had either a red light or amber light, but that she had not observed the traffic light for Hurontario Street.

[203] Therefore, neither of Joanne Ong or Natalie Ianniello's testimony can be relied upon to prove the defendant's pickup truck had crossed the stop line when the light had been yellow.

[204] Hence, the only evidence that the defendant's pickup truck had crossed the stop line on yellow or amber light comes directly from the defendant's own testimony.

(6) Did Anyone See The Bicyclist Proceed Onto The Roadway Before The Pedestrian Signal For The Bicyclist Had Changed To The "Walking Man" Symbol?

[205] Edwin Bonilla, a witness for the defence, had testified that the bicyclist should have stopped at the intersection because the bicyclist did not have a green light. However, Bonilla did not say he had actually observed the light or signal for the bicyclist and had only assumed it was not green because he had said the defendant's pickup truck had entered the intersection while the traffic light was still yellow.

[206] Most importantly, neither the defendant nor any passenger riding in the defendant's pickup truck had said they had actually observed the colour of the pedestrian signal for the bicyclist before the bicyclist had been seen on the pedestrian crosswalk.

[207] On the other hand, none of the Crown witnesses had observed Gadong entering onto the pedestrian crosswalk when Gadong was not lawfully permitted to do so.

[208] Therefore, the defendant relies on his testimony and that of Edwin Bonilla, that the defendant's pickup truck had crossed the stop line or had entered the intersection while the traffic light was still yellow or amber, to raise the inference that the bicyclist, Erwin Gadong, had entered onto the crosswalk or began crossing Hurontario Street at an inappropriate or improper time.

(7) Is There Any Evidence That The Bicyclist Had Only Proceeded Onto The Roadway After The Pedestrian Signal For The Bicyclist Had Changed To The "Walking Man" Symbol?

[209] The evidence that the bicyclist, Erwin Gadong, had entered lawfully onto the pedestrian crosswalk on a green light comes from the Crown witnesses, Erwin Gadong, Anthony Franceschi, and Elias Hanna.

[210] For this query, Erwin Gadong had testified that he recalls just before waking up in the hospital that he had entered onto the pedestrian crosswalk to go eastbound across Hurontario Street when he had observed the pedestrian signal for him change to the "walking man". Gadong also had testified that when he had first got to the intersection he had looked and observed that the traffic light for him to cross had been red. When he saw the red light, he said he then waited. However, he said he does not know for how long he had waited, but said he had waited for at least a couple of seconds. Then, when the light changed to the "walking man", he said he starting riding and then remembers only waking up in the hospital.

[211] Gadong also testified that he had watched the pedestrian signal and when he had observed the white "walking man" signal, he began to cross the road. In addition, he said that when he had first looked at the lights he said he had to wait for the light to turn green for east and west traffic and then he had to look for the stop hand to change to the walking man, which is at the same time as the light on Bristol. He also said that before he had crossed he had looked at the walking man signal and observed that it was a "walking man" and that the light for cars for Bristol had been green.

[212] In addition, Anthony Franceschi, who was waiting at the northeast corner of the intersection to cross Hurontario Street, had testified that Erwin Gadong had entered onto the pedestrian crosswalk at the same time as he had proceeded onto the pedestrian crosswalk located on the northside of the intersection, and that Franceschi did not proceed onto the crosswalk until he had seen the pedestrian signal change that permitted pedestrians to cross Hurontario Street.

[213] Franceschi also testified that when Erwin Gadong had entered the intersection, the pedestrian light for crossing had been green. He also confirmed under cross-examination that he had been looking forward the whole time.

[214] As for Elias Hanna's observations, Hanna had testified he had been driving the Mississauga Transit bus that had been at the bus stop just north of the pedestrian crosswalk. He also said people had been unloading and loading onto his bus when he had observed a kid on his bicycle on the northwest corner of the intersection waiting for the light. Hanna further said that he had noticed that the light for Hanna had been red and then said he had observed the kid's light turn green. He said the boy on the bicycle then passed in front of the bus and then Hanna said he observed the vehicle next to him hit the boy on the bicycle when the boy had gone past the first right lane.

[215] Moreover, Hanna testified that he had observed the bicyclist waiting at the northwest corner and that the traffic light for southbound traffic had been red for about 2 seconds when the defendant's pickup truck had crossed the stop line. He also testified that he had observed the truck speeding in an attempt to pass on a red light that had been red for two to three seconds when the boy had been hit.

[216] In addition, Hanna testified that he had observed the light for southbound traffic and the truck had been red, while the light for the kid had been green. Hanna also said that when he had observed the boy begin to cross the intersection, Hanna said he had been looking southbound at the boy. Moreover, he said that he had noticed the light for southbound traffic had been red when he opened the door for the bus and that when the kid was riding his bicycle the light had still been red for southbound traffic.

(8) Credibility Of Crown Witnesses

[217] The Crown's witnesses, Anthony Franceschi, Natalie Iannello, Karissa Persaud, Erwin Gadong, Dino DiBernardo, and Elias Hanna, have been credible; however, any testimony about the colour of a traffic light in which any of the Crown witnesses had based it on an assumption, but had not actually observed, will not be relied upon or carry any weight.

(9) Credibility Of Defence Witnesses

(a) the credibility of Joanne Ong

[218] Joanne Ong's evidence about what the colour of the traffic light had been when the defendant's pickup truck had crossed the stop line is not reliable because of Ong's changing testimony about the colour of the traffic light.

[219] For her changing testimony, Ong had revised her original answer from the traffic light being yellow in her testimony-in-chief to the light being red under cross-examination. In particular, Ong testified during cross-examination that the light should have been red when the defendant's truck entered the intersection because of the duration of 4 seconds.

[220] Furthermore, Ong's testimony that the traffic light should have been red when the defendant's pickup truck entered the intersection also cannot be relied on as proof the truck had entered the intersection on a red light, since Ong had said the intersection for southbound traffic begins at the north curb line of Bristol Road, although the term intersection under s. 144(1) includes the pedestrian crosswalk and that the defendant had been legally required under s. 144(5)(a) to stop the pickup truck at the stop line which is located north of the crosswalk, and Ong did not actually testify to observing the defendant's pickup truck north of the stop line when the northbound and southbound traffic lights had been red.

[221] Similarly, Ong's testimony that the defendant's truck had entered the intersection on a yellow or amber traffic light also cannot be relied on, since Ong has changed her answer about the colour of the traffic light from yellow in her testimony-in-chief to being red in her testimony during cross-examination.

(b) the credibility of Edwin Bonilla

[222] Edwin Bonilla had testified that the southbound traffic light had been yellow when the defendant's truck had entered the intersection and that it had still had been yellow when the collision suddenly occurred, and that it had been yellow all along. He also testified that the traffic light had become red when they had passed the intersection, but that he did not actually see the light turn red. In addition, he testified that the defendant did not stop at the intersection because they had been close to the intersection when the light was yellow. Furthermore, he testified that he had been sitting in the middle of the rear seat and that his view had not been obstructed by any objects on the dashboard or windshield, since the windshield was large.

[223] With respect to Bonilla's testimony, the Crown contends that Bonilla had a motive to fabricate and that Bonilla's testimony is not credible as it contradicts the defendant's testimony on several relevant issues, especially in regards to Bonilla's seating arrangement and their working relationship.

[224] In regards to Bonilla's motive to fabricate, the Crown suggests that the relationship between the defendant and Bonilla is the basis for this motive. I find the Crown's suggestion to have merit even though the defendant had testified that Bonilla did not have to come work with him and that the defendant does not associate with Bonilla anymore. However, the defendant also testified that he had helped out Bonilla with clothing and food, that they were friends, and that he had also helped out Bonilla in getting a job at the same company where the defendant is employed. As such, it would not be unreasonable to conclude that Bonilla would have had the motive to fabricate.

[225] In addition, the reliability of Bonilla's observation about the defendant's pickup truck entering the intersection on a yellow or amber light is also at issue, considering that when Bonilla had been questioned about where he believed the intersection commenced for southbound traffic on Hurontario Street, he drew a blue line that was in line with the north curb line of the intersection on a sketch entered as Exhibit "9" to represent the intersection's starting point. His original markings on Exhibit "8" were disregarded and redone on a second sketch due to the confusion over the lines that had already been placed on a sketch prepared by the defendant's legal representative in Exhibit "8". As earlier indicated, because there is a pedestrian crosswalk painted on the roadway, then s. 144(1) defines the intersection to include the pedestrian crosswalk and that the defendant had also been required to stop his pickup truck at the stop line that is located just north of the pedestrian crosswalk.

[226] Moreover, if the defendant's pickup truck had actually entered the intersection when the defendant's pickup truck had crossed the north curb line of Bristol Road on a yellow or amber light, then since the north curb line is south of the stop line and the north boundary line of the pedestrian crosswalk, Bonilla's testimony about the pickup truck entering the intersection on a yellow or amber light would still show the pickup truck had crossed the stop line or north boundary of the pedestrian crosswalk on a yellow or amber light as it would take only a moment longer for the pickup truck to pass both the stop line and the north boundary of the pedestrian crosswalk and the north curb line of Bristol Road. So, it the traffic light was yellow or amber when the pickup truck crossed the north curb line of Bristol Road, which is where Bonilla believes the intersection commences, then the traffic light would have been also a yellow or amber light when the pickup truck had crossed at either the stop line or the northern boundary of the pedestrian crosswalk, which is only a moment earlier than the point where the pickup truck would have crossed the north curb line of Bristol Road.

[227] However, it should also be noted that Bonilla had not been questioned about where the defendant's truck had to stop if he had been facing a red light, and only questioned about where he believed the intersection commenced, since he had testified that the defendant's pickup truck had entered the intersection on a yellow or amber light.

[228] Ergo, Bonilla's testimony about the defendant's pickup truck entering the intersection on a yellow light will have to be assessed for its reliability and credibility considering Bonilla's testimony has contradicted the defendant's testimony on relevant issues. The contradictory testimony relates to where Bonilla had been seated in the backseat; whether Bonilla worked for the defendant in his lawn cutting business or whether he just simply was there helping out the defendant as a friend; and, whether the vehicle driving alongside and near the defendant's trailer had stopped or had gone through the intersection.

[229] In regards to where Bonilla had been seated, Bonilla testified that he had been seated in the back seat, but right in the middle, and that he could see clearly from that position. Furthermore, Bonilla testified that he does not normally sit in the middle in the backseat, but had explained that he had moved to the middle so that he could talk to his friend, Carlos Manzanares, sitting in the front seat. He also testified that he was a rear-seat passenger in the defendant's pickup truck and that he had a clear view of the traffic light through the front windshield.

[230] However, Bonilla's testimony about where he was seated in the rear seat contradicts the testimony of the defendant. The defendant had explained, when the defendant had been challenged during cross-examination about where Bonilla had been seated, since the defendant had originally said in his statement to the police officer on the day of the collision that Bonilla had been seated in the passenger-side rear seat and not in the middle rear seat, that Bonilla had been actually seated in the rear passenger-side seat and not in the middle seat, and that Bonilla had actually moved only his upper body and head to the middle of the back seat so that Bonilla's head would be position in the middle so that Bonilla could converse in Spanish with the person sitting in the front passenger-side seat.

[231] I find that this contradiction about where Bonilla had been seated in the rear seat undermines both Bonilla and the defendant's credibility. In addition, I find that both of their efforts in trying to put Bonilla's head in the middle of the seats so as to have a clear view of the intersection through the front windshield is a contrived effort by both of them to place Bonilla in the right position in the defendant's truck to have a proper view for confirming the defendant's contention about crossing the stop line on a yellow light.

[232] Furthermore, in regards to the contradiction upon whether Bonilla had actually worked for the defendant in the defendant's lawn cutting business, Bonilla gave the impression in his testimony that he had worked for the defendant when he was called by the defendant to work, while the defendant testified that Bonilla was not required to go out with him on jobs, but only did so as a friend. Although this is not a contradiction related to circumstances surrounding or relevant to the collision, it does show that the defendant is trying to downplay the issue of being an employer to Bonilla that may have some relation to employee deductions or to workers safety legislation. This effort by the defendant to minimize their working relationship also affects the defendant's credibility since the defendant is not completely being straightforward.

[233] Finally, for the contradiction about the vehicle that had been travelling alongside and near the defendant's trailer not stopping, but going through the intersection, Bonilla had testified there had been a vehicle alongside them, which had been travelling near where the trailer that the defendant's truck was pulling, that had stopped while they had gone through the intersection. On the other hand, the defendant in his testimony about the same vehicle that had been beside them had said the vehicle to his left had also swerved and had laid on the horn, and then that vehicle had zoomed right through on the amber light, which contradicts what Bonilla had said about this particular vehicle having stopped.

[234] Specifically, Bonilla had explained how he had looked at the traffic light, then turned his head, and then saw the bicyclist. He also said that when the accident happened the light had been yellow and that the defendant had tried to avoid the bicyclist, but had hit the bicyclist. In addition, he said he had quickly glanced at the traffic light, and then looked to the side, and then they drove through. In addition, he said the other vehicle alongside them had been travelling near where the trailer had been. He also said the other vehicle had stopped while they had gone through the intersection.

[235] Moreover, in order for Bonilla to see the vehicle that was travelling alongside the defendant's vehicle near the trailer would have required Bonilla turning his head to the side and looking east to northeast to see that other vehicle. Considering that Bonilla had said that everything had happened so quickly, it appears improbable that Bonilla could look at the traffic light, see the bicyclist suddenly appear in front of the defendant's truck, tell the defendant to look out for the bicyclist, observe the defendant swerve to the left and then move to the right and then observe the truck's mirror collide with the bicyclist, then look east to northeast to see the vehicle alongside near the trailer being pulled behind the defendant's truck, and then see that other vehicle stop as the defendant's truck continued through the intersection. Hence, based on where Bonilla said the other vehicle had been located near where the trailer was would make it improbable for Bonilla to observe that other vehicle come to a stop when Bonilla said he was looking forward and observing the traffic light and the bicyclist collide with the truck's passenger-side mirror.

[236] Furthermore, none of the Crown witnesses had observed there being another vehicle travelling through the intersection when the defendant's pickup truck had gone through the intersection.

[237] This contradiction about whether this other vehicle stopped or zoomed through the intersection, or whether it actually existed, also undermines both the defendant and Bonilla's credibility.

[238] In addition, the credible testimony from Anthony Franceschi, Elias Hanna, and Erwin Gadong that Gadong did not enter the pedestrian crosswalk until Gadong had a "walk" signal, and the testimony of Dino DiBernardo which circumstantially confirms that the defendant's truck could not have crossed the stop line on an amber light, but only on a red light, makes Bonilla's evidence about the defendant's pickup truck entering the intersection on a yellow or amber light an improbable event.

[239] Accordingly, based on the contradictions between the defendant and Edwin Bonilla and the questionable ability of Bonilla being able to properly observe the vehicle alongside the defendant's trailer come to stop and the improbability of both the defendant and Bonilla's testimony about observing the defendant's pickup truck entering the intersection on a yellow or amber light, in light of the credible evidence that proves Erwin Gadong did not enter onto the pedestrian crosswalk until Gadong's pedestrian signal had been a "walk" signal, means that the defendant's pickup truck could have only crossed the stop line on a stale red light that had already been red for about 2.5 to 3.5 seconds.

(c) the credibility of the defendant

[240] It is evident that the testimony from the defendant that his pickup truck had crossed the stop line after the traffic light had just changed from green to yellow is self-serving and not credible. Much of the defendant's lack of credibility is based on the contradictory testimony between the defendant and Edwin Bonilla, who had been a passenger sitting in the rear seat of the defendant's pickup truck.

[241] To reiterate, there is the contradictory testimony about where Bonilla had been seated in the backseat. Bonilla had testified that he was sitting in the middle of the rear seat where he does not normally sit. On the date of the collision, the defendant had voluntarily told a female police officer that Bonilla had been sitting in the rear passenger seat, and when questioned about the difference with Bonilla's testimony about Bonilla's seating position in the rear seat with the defendant's statement on the day of the collision, the defendant had explained that Bonilla was sitting in the rear passenger seat, but had been slouched forward with Bonilla's head in the middle so that Bonilla could converse with Carlos Manzanares who was sitting in the front passenger seat. However, the defendant's explanation does not adequately explain away the contradiction that Bonilla had testified he was sitting in the middle of the rear seat, a place that he normally does not sit.

[242] Furthermore, Bonilla had said that he had been seated in the back seat, but right in the middle, and could see clearly from that position. Furthermore, Bonilla had said he does not normally sit in the middle in the backseat, but explained that he had moved to the middle so that he could talk to his friend sitting in the front seat.

[243] In another contradiction, the defendant had testified that the vehicle travelling alongside his vehicle to the defendant's left had zoomed through the intersection, while Bonilla had testified that vehicle had come to a stop. Moreover, Elias Hanna, who gave credible testimony, had testified that it had only been the defendant's truck that had tried to pass through the red light.

[244] In addition, there is also conflicting testimony between the defendant and Bonilla about the working relationship between the defendant and Bonilla. Bonilla had testified about working for the defendant while the defendant in his testimony had portrayed Bonilla, not as an employee, but someone who just voluntarily accompanied the defendant on jobs for the defendant's lawn cutting business, to simply help out the defendant.

[245] Moreover, the contention by the defendant that his pickup truck had crossed the stop line on a yellow light contradicts the credible testimony from Anthony Franceschi, Elias Hanna, and Erwin Gadong that Gadong did not enter the pedestrian crosswalk until Gadong had a "walk" signal, as well as the credible testimony from Dino DiBernardo, which circumstantially confirms that the defendant's truck could not have crossed the stop line on an amber light, but only on a red light, which would also render the defendant's testimony that the defendant's pickup truck had crossed the stop line on a yellow or amber light an improbable event.

(10) Conclusion

[246] I find that Erwin Gadong had only entered onto the pedestrian crosswalk after Gadong's pedestrian signal had changed to a "walk" signal. Moreover, I find that the defendant's pickup truck did not cross the stop line when the traffic light for southbound traffic had been yellow or amber, but that it had crossed the stop line when the traffic light had already been red for about 2.5 to 3.5 seconds.

[247] In addition, I find that neither the defendant nor Edwin Bonilla have given reliable or credible testimony about what colour the traffic light had been when the defendant's pickup truck had crossed the stop line.

[248] Consequently, based on the incredible and self-serving nature of the defendant's testimony and the virtual impossibility of the defendant's pickup truck crossing the stop line just as the traffic light was changing from a green light to a yellow light, I am not left with reasonable doubt by any of the defendant's testimony. Furthermore, after considering all the evidence, I am convinced beyond a reasonable doubt that the defendant had crossed the stop line for southbound traffic after the traffic light for southbound traffic had been red, and therefore, find beyond a reasonable doubt that the defendant had failed to stop for a red light at the intersection in question.

7. DISPOSITION

[249] Accordingly, based on the totality of the evidence, I find that the Crown has met their burden of proving beyond a reasonable doubt that the defendant, Benito Scetto, has committed the offence of "red light – fail to stop", contrary to s. 144(18) of the Highway Traffic Act, R.S.O 1990, c. H.8. Therefore, a conviction will be entered against the defendant, Benito Scetto.

Dated at the City of Brampton on May 3, 2013.

QUON J.P.

Ontario Court of Justice