Court File and Parties

Court File: Toronto Region Information No. 103903

Ontario Court of Justice

Between:

R. v. Allen Lattimore

Before: Justice of the Peace M. H. Conacher

Trial Dates: August 19 & 20, 2013

Released: October 31st, 2013

Counsel:

R. Leong for the prosecution
J. Shime for the defendant

Cases Considered

Decision

[1] Allen Lattimore is charged pursuant to the Ontario Highway Traffic Act with Careless Driving contrary to s.130, with Fail to Yield to Pedestrian contrary to ss. 140(1)(a) and with Turn – Not in Safety contrary to ss. 142(1).

[2] The Prosecution indicated it was not proceeding with the charge of Fail to Yield to Pedestrian. Mr. Lattimore was arraigned on the remaining two counts and entered pleas of Not Guilty.

[3] It is the finding of this Court, for the reasons set out below, that the Prosecution has made out both of these offences beyond a reasonable doubt and that Mr. Lattimore has not made out a defence of due diligence on a balance of probabilities.

[4] Accordingly the Court enters a finding of guilt with respect to the Careless Driving offence. A conditional stay of proceedings, in keeping with Kienapple, will be registered for the Turn-Not in Safety offence.

[5] The appearance on October 31st, 2013 will be to deal with the issue of penalty for the Careless Driving offence.

Reasons

Context and Impact

[6] Firstly, this case involves a terrible tragedy, the death of a woman who very evidently was a part of a caring extended family, members of which were present throughout the proceedings. In addition to the tragedy to Ms Risa Goldberg personally of the loss of her life, the impact on her family has, no doubt, been deep, profound and permanent. The death of a person is precisely the paramount consequence that the provisions of the laws and regulations governing traffic on our highways are aimed at preventing.

[7] At the same time, the Court recognizes the impact that this incident is likely to have had on Mr. Lattimore, the operator of the motor vehicle that struck Ms Goldberg. There is no doubt in my mind, based on the evidence before the court and the opportunity to observe Mr. Lattimore throughout these proceedings, that Mr. Lattimore is a responsible, hard-working family man who has been profoundly impacted by and has experienced significant adverse consequences as the result of this incident.

[8] Having stated that, it is important to bear in mind that the purpose of these proceedings is not to ascribe blame for Ms Goldberg's death let alone provide redress for the death. The purpose of these proceedings has a narrower focus, that being to adjudicate the Prosecution's allegations that Mr. Lattimore drove carelessly, as defined by the Highway Traffic Act, and that he did not turn safely. As mentioned above, while preventing the death of persons is a principal intent of highway traffic laws and regulations, the penalties to which a driver is liable upon conviction for the offences for which Mr. Lattimore has been charged cannot, and are not intended to, compensate for or to offset the loss of a life.

The Evidence

Agreed Statement of Facts

[9] The first item of evidence tendered was an Agreed Statement of FACTS (ASF) which is Exhibit #1. It is reproduced as follows:

Mr. Allen Lattimore is 48 years of age. He has been a truck driver with a company called Spicer's for 15 years.

On Thursday, June 14, 2012, at approximately 7:39 a.m., Mr. Allen LATTIMORE was driving a Freightliner straight truck box eastbound on Adelaide Street West at Brant Street in the City of Toronto. He was headed to a city yard located at 60 Brant Street.

Mr. LATTIMORE was stopped in response to a red traffic light in his direction. When the traffic light turned green, Mr. LATTIMORE proceeded forward with his truck to make a left turn onto Northbound Brant Street.

The speed limit on Adelaide is 50 km/h. By all accounts, Mr. LATTIMORE was travelling between 10-15 km/h at the point of impact. There were no tire marks from the truck. No tire marks from the truck on the road. There were tire marks left on the victim.

After having turned on to Brant Street northbound, he felt a bump. He immediately stopped the truck and got out. When he got out, he saw a woman lying on the ground between his front and rear left tires. He immediately said to people on the scene that he had not seen her. He was visibly upset and crying. He remained on scene for the police to attend and fully cooperated with the investigation.

That woman was Ms. Risa Goldberg. She and the truck had made contact and, tragically, as a result of the injuries she sustained, Ms. Goldberg later passed away.

No witnesses saw Ms. Goldberg before the accident had occurred.

Mr. Natalino Armagida was at the scene. He did not witness the accident or see any contact between Ms. Goldberg and the vehicle being operated by Mr. Lattimore. He heard a noise and turned around. He saw Ms. Goldberg lying on the ground between the tires. She was not pinned under the tires of the truck.

Dr. Garrett Benson was also on the scene, but he too did not see the accident. He first saw a woman lying under the truck and he noticed blood. He noticed that the traffic light for eastbound Adelaide was green. He attended to Ms. Goldberg. She was non-responsive, had infrequent irregular breathing and a weak pulse.

Mr. LATTIMORE provided a statement to the police at the scene. He advised as follows:

He does not require glasses to drive. He had not consumed any alcohol. He had slept 7-8 hours the night before and was not tired. He advised that he was the driver and that he was travelling east on Adelaide. He was stopped at the red light at Brant Street. When the light turned green, he checked and noted no pedestrians on either side of Brant Street. He turned left (north) on Brant Street. He was travelling at approximately 10 km/h. He felt a bump and stopped and got out of his truck. He saw a woman lying under his truck. He told police that a person came out of nowhere and he hit her. There had been no screams or any voice warning him about the pedestrian under the truck.

Forensic analysis was done, but it could not be determined what direction Ms. Goldberg was traveling (east or west), where she entered the roadway, her rate of speed (eg walking or running) or exactly where point of impact occurred with the truck.

The road conditions that day were fine – it was a clear and sunny day and the roads were dry.

There were no mechanical problems with the truck.

Mr. Jeff Davies

[10] The ASF was supplemented by the viva voce testimony of 3 witnesses, the first being Mr. Jeff Davies. Mr. Davies had been operating a vehicle that was stopped behind Mr. Lattimore's truck at the red light facing eastbound on Adelaide St. W. at Brant St. Mr. Davies' evidence may be summarized as follows:

Mr. Davies was stopped in his vehicle northbound at Morrison St. and Adelaide St. W. and observed the truck that turned out to be Mr. Lattimore's vehicle pass by heading eastbound along with a Vespa or bike. He let the vehicles pass before turning onto Adelaide. The truck was not being operated unsafely. Mr. Davies turned and pulled over 2 lanes behind the truck and came to a stop at Brant St. behind Mr. Lattimore's truck. He presumed the traffic light was red but couldn't see it because of the truck. The traffic conditions were light and there was only the truck and the Vespa. There were no pedestrians. The truck was 90% in the far left (the northernmost) lane and 10% in the next lane. He was stopped 5 – 6 feet behind the truck. It was light out. The sun was very bright. He had sun glasses on and the visor was down. His vehicle was 100% in the left (the northernmost) lane. When driving in this area he is not relaxed. It is a very busy area and he is very tense. His manner of driving was cautious because it's busy.

He was stopped behind the truck for 10-15 seconds before it began to move. Its movement was just a "normal arc". The truck did not make any move to the right first. It started from a stopped position and accelerated to 5-10-15 km/hr. In his viva voce testimony he stated he wasn't sure if the left turn signal of the truck was on but agreed that in his statement to the police at the time he had stated he was pretty sure the left signal was on. As the truck began its turn, there were some lower benches and trees between him and the truck.

He saw the truck strike a woman. He had to assume he thought it was a woman because of the hair. He can't say how she entered the roadway. The truck had been moving maybe 3 – 4 seconds.

He remembers the woman being pushed forward. He saw the truck rising, coming up and coming down. The truck stopped. When she hit the ground he couldn't see her anymore. The truck raised up 6"-8". The truck came down and then came to a stop. He couldn't see the pavement on Brant St. in front of the truck. The sun was not causing him any problems with his vision or with operating his vehicle. He could see the silhouette of the pedestrian.

The driver of the truck exited the truck. He was weeping and moaning and yelling, "I didn't see her. I didn't see her. Oh my God I didn't see her."

[11] Mr. Davies' testimony as to these points was not in dispute. He was clear, specific and unhesitant in relating what he recalled. Portions of what he stated he saw had been previously incorporated into the ASF. The chief point of contention in his evidence was his recollection as to where Ms. Goldberg was on Brant St. at the moment of impact.

[12] Mr. Davies was invited at trial to indicate on Exhibit #2 Ms Goldberg's position as he recalled it as of the moment of impact. He had testified that he did not see the pedestrian prior to the moment of impact. Exhibit #2 is a diagram of the Adelaide St. W. and Brant Street intersection drawn to scale by Detective Constable Yourkin of the Collision Reconstruction Squad of the Toronto Police Service. Mr. Davies made a mark in pen on the white line that represents the north-most line of the east-west pedestrian crossover on the north side of the intersection. The mark was made approximately in the middle of the northbound lane of Brant St.

[13] Mr. Davies was then invited to examine Exhibit #3. Exhibit #3 is a Google Map image of the intersection that had been shown to Mr. Davies by the police investigators several days after the incident in June, 2012. At that time, he had been invited to make a mark on that image, again, to indicate where he saw Ms Goldberg to be at the point of impact. Mr. Davies testified he marked the 'X' that appears on that image. That 'X' is, again, on the white north-most line of the north pedestrian crossover except, unlike the mark on Exhibit #2, the 'X' appears to be directly in the middle of Brant St., in line with the yellow stripe dividing the northbound and southbound lanes of Brant St. In other words, the mark made by Mr. Davies on the day of trial, based on the scale diagram Exhibit #2, was 1 ½ metres east of the location denoted by the mark that he made in June, 2012. Both marks denote the position as being on the white line of the pedestrian crossover.

[14] He further testified that he saw her "being pushed" by the impact.

[15] Under cross-examination, Mr. Davies acknowledged that his recollection in June, 2012 was likely more accurate that his recollection on the day of trial. He was challenged as to whether he was able to state precisely where Ms. Goldberg was in relation to the pedestrian crossover lines. He acknowledged that he could not see her feet. He acknowledged that he could not tell what type of shoes she was wearing, their colour, or whether she was wearing leggings, pants, shorts or a skirt. Repeatedly challenged to agree that he could not definitively state where Ms Goldberg was in relation to the pedestrian crossover demarcation lines because he wasn't paying attention to the lower half of her body, Mr. Davies returned to his evidence that, "What I recall is seeing, the point of impact being on the cross-walk close to the north line of the cross-walk someplace in the middle of the street across Brant." "When you say exact, again, on the crosswalk, near the north line someplace across the street of Brant." "If you're asking me what I saw, I saw her get struck on the north part of the cross-walk." "I know what I saw, I saw her get struck on the cross-walk." While Mr. Davies is not able to state with precision her position east-west on Brant, Mr. Davies was clearly very certain and specific in his recollection that she was on or within the pedestrian cross-over. That recollection is consistent with his statement to the accident investigators within days of the incident and his marking on the Exhibit #3, again made in June, 2012 several days after the incident. When he exited his vehicle after the collision, his vehicle was still on Adelaide St. He described the position of Ms Goldberg when he saw her under the truck as being "a little bit" north of the pedestrian cross-over.

Detective Constable C. Yourkin

[16] The second Prosecution witness was Detective Constable Yourkin who conducted the collision reconstruction and produced the Collision Reconstruction Report on behalf of the Toronto Police Service. Following a voir dire, D.C. Yourkin was qualified as an expert in the field of accident reconstruction for the purpose of this proceeding. Her Report was admitted as Exhibit #6.

[17] The Report largely speaks for itself but comment must be made in these reasons with respect to certain aspects of the report and Officer Yourkin's testimony including the attacks on the credibility of the methodology employed and the conclusions drawn.

[18] In the Conclusions section of the Report it is stated, "This was an avoidable collision." This is the author's opinion and, while the witness was qualified as an expert, it does not follow that that Court adopts the expert's conclusions holus-bolus. Even were the Court to agree with the statement, it does not follow, perforce, that the offence of Careless Driving or Turn-Not in Safety is made out. The Court has set aside that opinion for the purpose of these proceedings.

[19] The Report identifies four points on the roadway at which the traffic collision reconstructionists believe Ms Goldberg may have been struck. Those locations are depicted in Figure 10 on page 34 of the Report. There was considerable focus by the Defence as to how the calculations were made, on whether the assumptions that were used were valid including using assumptions based on anecdotes rather than an evidence-based approach, on the reasoning that was employed to rule out other possibilities or lines of inquiry or investigation (for example measuring and graphing the "blind spot" effect of the passenger-side "A" pillar), and on the problem that the final resting point of Ms Goldberg was unknown.

[20] Recognizing the variables that were at play in calculating the possible points of contact, the Court finds that those points as indicated in the report are not, in themselves, definitive. However, on that issue, the Report and Officer Yourkin's testimony significantly bolster the eye witness evidence of Mr. Davies whose description of the point of contact was definitive as being on the cross-over, or cross-walk as he termed it, and that the point of contact on the truck was the front of the truck on the driver's side. Again, the determinations of the Report bolster that testimony.

[21] On the whole of the Prosecution's evidence, the Court determines that the Prosecution has made out that Ms Goldberg was on or within the east-west pedestrian crossover and, in any event, not more than 1 metre north of the northern boundary line of that cross-over; that she was struck by the front of the vehicle, that is by the front hood and bumper; that the point of contact with the truck was left of the centre of the truck, that is in front of the driver's position; and that the contact occurred within the southbound lane of Brant St. as it is projected southward through the intersection. The implication of this latter finding is that the truck, rather than turning into the northbound lane was cutting the angle through the southbound lane outside of the confines of the intersection. Such a manoeuvre is prohibited by s.141(6) of the Highway Traffic Act, except as outlined in ss.(9). While a driver may be complying "with the applicable provision (i.e. ss.(6)) as closely as practicable", when cutting a corner, such a manoeuvre is inherently less safe than one made in strict compliance with ss.(6) and a driver, exercising normal prudence, would be expected to employ an appropriate degree of caution as a consequence.

Mr. Allen Lattimore

[22] Following the dismissal of a non-suit motion by the Defence, the reasons for which were stated on the record, the Court heard directly from Mr. Lattimore.

[23] Mr. Lattimore testified that as he approached Brant St. along Adelaide Street W. He was travelling at approximately 45 km./h. He was wearing sunglasses and a ball cap but the sun was not a problem for him. He stopped for the red traffic light at Brant St. He was stopped for 10 to 15 seconds. His left turn signal was on. He "observed all around." He later clarified that this meant that he looked north, south, east and west. He observed the east and west side of Brant St. He did not see any pedestrians. He did not see Ms Goldberg. He observed all around to see if there was anyone coming from anywhere or going anywhere. He could observe a construction worker holding a sign further east on Adelaide Street. When the light turned green he proceeded. He kept turning his head as he was turning the corner. He checked his mirrors "to check for pedestrians". He felt a bump and stopped his vehicle and exited and saw Ms Goldberg under the truck.

[24] A critical portion of his testimony, in the view of the Court, is Mr. Lattimore's initial evidence-in-Chief describing what he did when the light turned green. He stated:

Q/ And so you get to the intersection at Brant, and, can you assist us and assist His Worship in what happens initially at the intersection at Brant?

A/ I was driving along and the light turned red. I came to a complete stop. had my left signal light on to turn. Observed all the areas around me to see if there was anything or anybody coming anywhere or going anywhere. Straight ahead I could see a construction man holding a stop sign up in the distance.

Q/ Futher east of Brant?

A/ Further east down Adelaide … and, the light turned green. I looked again ... through the spaces that I could see without moving my head back and forth around the pillars and stuff. Did not see anybody. Continued to make my turn. Felt a bump. Came to a complete stop fast. Out I came out of my truck and I seen Miss Goldberg underneath the truck.

Q/ Ok, and we'll go back through that in a moment, but, prior to getting out of your truck and seeing Ms Goldberg on the ground, had you seen her before that time?

A/ No Sir.

Q/ What was the first indication to you that anything unusual had occurred?

A/ Something different on the road.

Q/ That was the bump you described?

A/ Correct.

[25] Mr. Lattimore was subsequently led again through his actions and asked to described what he meant by "looking all around". He described looking "north, south, east, west". He described looking "behind" and by that he meant that as his truck was on an angle turning north onto Brant Street that he was still able to see to the south. "I could see the surrounding behind me." He described looking through the windows and observing the convex mirrors "to see if there's any pedestrians." As he stated, "They could be anywhere." In this further evidence, Mr. Lattimore significantly adds to the actions he says he took to observe the roadway and his surroundings. The Court has to weigh the credibility of these assertions against the timeframe in which they would have occurred, that is, the 4 – 5 seconds it took for the truck to travel the 12 – 15 metres from its starting position on Adelaide to the point of "the bump".

[26] In the view of the Court, the initial recitation by Mr. Lattimore of how he proceeded is the clearest, most straightforward and, particularly in view of the brief timeframe, the most credible. There are two main issues of concern raised in this testimony; firstly that he specifically testifies that he did not compensate for the pillars by, "moving his head back and forth" and secondly that he does not indicate that he paid attention to the pedestrian cross-over in and near where his vehicle would be travelling. He may have been looking "all around", or "north, south, east and west", or behind him or in the convex mirrors. These actions may have, in fact, been prudent actions but he does not state with any clarity or in a persuasive manner that he directed his attention in a reasonably focussed manner on the one place that a driver in those circumstances should have, the east-west pedestrian cross-over and its approaches.

The Law

[27] The leading jurisprudence with respect to the nature of the offence of Careless Driving in Ontario continues to be R. v. Beauchamp, [1953] O.R. 422, [1953] 4 D.L.R. 340, 16 C.R. 270 (C.A.). Beauchamp articulates the standard to be applied to the driving conduct as determined on the evidence. I cannot do better in summarizing the law than my learned colleague, His Worship K. Dechert, in his decision of R. v. Wong, [2013] O.J. No. 1033, 2013 ONCJ 112, in which he very thoroughly reviewed the contemporary state of the common law relating to Careless Driving and I adopt his summary in para. 8 - 19 by reference. For the purposes of this decision, I will, as did His Worship, reiterate the summary by Durno, J. of the essential provisions of Beauchamp in his R. v. Kinch decision, [2004] O.J. No. 486, in outlining the burden on the prosecution:

50 The test for careless driving has remained constant since the Court of Appeal decision in Beauchamp, supra. The main criteria are the starting point in determining whether the Crown has established the trial judge erred in law:

The evidence must be such as to prove beyond a reasonable doubt that the accused drove without due care and attention or without reasonable consideration for others.

The standard of care and skill is not one of perfection. Rather, it is a reasonable degree of skill, and what an ordinary person would do.

The use of the term "due" means care owing in the circumstances. [emphasis added] While the legal standard of care remains the same - what the average careful man would have done in the circumstances, the factual standard is constantly shifting, depending on road, visibility, weather conditions, traffic conditions and any other condition that ordinary prudent drivers would take into consideration.

The law does not require of any driver that he should exhibit perfect nerve and presence of mind, enabling him to do the best thing possible. It does not expect him to be more than ordinary men. Drivers of vehicles cannot be required to regulate their driving as if in constant fear that other drivers, who are under observation, and apparently acting reasonably and properly, may possibly act at a critical moment in disregard of the safety of themselves and other users of the road.

The standard was objective, impersonal and universal, in no way related to the degree of proficiency or experience of a particular driver.

There was a further important element - that the conduct must be of such a nature that it could be considered a breach of duty to the public, and deserving of punishment. This further step must be taken even if the accused's conduct fell below the standard.

The test where an accident has occurred, is not whether the accident would not have happened if the accused had used greater skill or care, but whether it was proved beyond a reasonable doubt that the accused, in the light of existing circumstances of which he knew or should have known, failed to use the care and attention or to give to other users of the highway the consideration that a driver of ordinary care would have used, or given in the circumstances.

51 In cases involving accidents, the gravamen of the offence is whether the prosecution established the accused was driving carelessly, and not the consequences of the driving: R. v. Pyszko [1998] O.J. No. 1218 (Ont. Ct. J.).

[28] The reference to Pyszko is particularly relevant to the circumstances of this case. As counsel for Mr. Lattimore argued, the Court must guard against the inclination to find there had been, prima facie, careless driving simply on the basis of the truck-pedestrian collision nor on the basis of its further consequences, the death of Ms Goldberg.

[29] The actus reus is improper driving judged on an objective basis, R. v. Weedon, (1987) 7 M.V.R. (2d) 21.

[30] MacDonnell, J. in the Globaki judgement also provides a comprehensive review of the jurisprudence as of 1991, particularly noting the (still) authoritative proposition that:

At the same time, it has been authoritatively held that mere inadvertent negligence will not necessarily support a conviction for careless driving: R. v. Wilson (1970), 1 C.C.C. (2d) 466, at 467. The Crown must do more than point to a bare act of negligence, however slight. It must show a sufficient departure from the standard of a prudent and reasonable driver to make the driving "deserving of punishment."

[31] The test is, in the context of the driving situation on that day, time and location, what is the objectively reasonable standard to be applied; has the Prosecution proven beyond a reasonable doubt that Mr. Lattimore failed to operate his truck to that standard; or has Mr. Lattimore demonstrated that he did, on a balance of probabilities, do all that a reasonably prudent driver of standard abilities would do to ensure the safe operation of his truck, that is, that he operated the vehicle with the care that was due in the circumstances? Finally, if he did fail to exercise due care and attention, was the nature of his driving such a breach of his duty to the public that it is deserving of punishment?

Application to the Instant Case

[32] June 14th, 2012 was a Thursday morning, a weekday and a workday. At 7:30 a.m. the sun was well up, having risen at 5:35 a.m. The lighting condition at the intersection of Adelaide St. W. and Brant St. was "very bright". The road surfaces were dry.

[33] The intersection is in an area of the city that is proximate to the financial and business district. The buildings in the surrounding area are mixed commercial, residential and light industrial use. It is within a block or two of the retail strips along Queen St. W., King St. W. and Spadina Ave.

[34] The intersection was controlled by automated traffic control lights which were in proper working order. As clearly revealed in the collision reconstruction photographs taken that morning, the pedestrian cross-overs in all directions were clearly delineated with white lines. The white stop lines for east bound Adelaide St. and for north and south bound Brant St. were also very clearly visible as was the yellow line dividing the north and south bound lanes of Brant Street.

[35] There are low rise commercial buildings on the northeast and southeast corners. There is a park on the northwest corner and a school ground on the southeast corner bordered along the south sidewalk of Adelaide St. by a row of trees.

[36] The building on the northeast corner is set back from the sidewalk along Brant St. by a boulevard that appears in the photographs to be a car-width in depth. The only item on that corner creating an obstruction is the concrete light pole supporting the traffic control signal. It is otherwise a wide-open corner.

[37] The northwest corner sidewalk, the boulevard, the round planter, the garbage receptacles, the grey utility box and traffic light standard on that corner as they could be viewed from the perspective of the lane in which Mr. Lattimore's vehicle was travelling are clearly seen in photographic Exhibit 4-F. The width of the combined sidewalk and boulevard at that point, according to the scale drawing Exhibit #2, is 4 metres. There are no obstructions on the sidewalk itself which is 2 metres wide. On Exhibit #3, a Google Map image from June, 2009, two paths through the park are visible that appear to conjoin on the north side of the planter and there is then a paved exit/entrance from the park onto Brant St. on the north side of the planter a few metres north of the northerly east-west pedestrian cross-over on Brant St.

[38] The lane on Adelaide Street occupied by Mr. Lattimore's truck as it was stopped at the stop line at Brant St. is three metres wide. His intended path was to the northbound lane of Brant St. which is 3.7 metres wide. The total width of Brant St. appears to be 7 metres from curb to curb. Mr. Lattimore's truck was 2.53 metres wide by 10.17 metres long.

The Reasonable, Objective Standard for a Driver Exhibiting Ordinary Care

[39] The driving manoeuvre that Mr. Lattimore was intending to make at that moment was not a particularly common left-hand turn in an urban environment. It was from a 3-lane one-way arterial road into a 2-lane two-way street. Mr. Lattimore was intending to effect a 90 degree turn of a 10.17 metre long vehicle across a width of 7 metres so that his 2.53 metre wide vehicle was fitted into a lane 3.7 metres wide. He had a relatively short distance in which to effect the turn so that his truck was fully and safely in the north bound lane of Brant St. Sub-section 141(6) of the Highway Traffic Act would require that this be done before the truck exits the intersection. This manoeuvre would be executed within a space of 4 to 5 seconds. He also had to allow for the two pedestrian cross-overs that he would be crossing and he had to ensure that the rear left wheels, which would be tracking an arc inside that of the front left wheel, did not mount the northwest sidewalk or interfere with any vehicles that might be coming southbound on Brant towards Adelaide or, for that matter, pedestrians that may be on or near the northwest curb. It is inferred that this is why he positioned his vehicle partially into the second lane on Adelaide St., to permit the turn to be rounded-out, that is, to effect less of a sharp 90 degree turn.

[40] This left turn did not involve crossing any lanes for traffic in the opposite direction. He was stopped with the east-west pedestrian cross-over abutting his lane. This presented a circumstance that meant he would have little time to react if a pedestrian entered the northern east-west cross-over as he began to move forward and to make the turn.

[41] While these may be a somewhat more complicated set of factors than one might face when effecting a common left-hand turn at a signalized intersection, it then follows, in the view of the Court, that it requires a proportionately heightened degree of prudence and care by the operator. This is so particularly given the circumstance that the vehicle would be almost immediately swinging across a pedestrian cross-over in an area where pedestrians would very likely to be present at that time and on a workday. In fact, there were at least two other pedestrians in the very immediate vicinity, Mr. Armogida and Dr. Benson, who was so close that he reacted to the accident while the traffic light for eastbound Adelaide was still green.

[42] A reasonably prudent driver would be exercising a heightened state of alertness to what is in the immediate path of the vehicle or is in the path the vehicle will be travelling as it moves through its turn and across a pedestrian cross-over where the traffic signals are permitting pedestrians to cross. Such a driver would be seeing, amongst other things, what is in the cross-over and in the immediate vicinity of the cross-over and what might be encountered as the truck moves through its turn. They would certainly be required to see, to take mental note of and to adjust accordingly for any pedestrian that is directly in the path of travel of the vehicle.

[43] Considerable focus in cross-examination of D.C. Yourkin was given to the blind spots created by the 'A' frame posts in the cab of the truck as well as the area immediately in front of the front hood and front bumper of the vehicle. The argument of the defence, as the Court understood it, was to the effect these blind spots create an impediment to a driver's view and an allowance ought to be made for such an effect in evaluating the standard of care to be applied.

[44] The Court could not accept as reasonable a proposition that the operator of a vehicle be held less accountable for not managing to fully scan the field of travel due to the obstructions created by the vehicle itself. In fact, the contrary proposition is, in the view of the Court, the appropriate one. That is, given the need to see and to take note of any objects or persons with which the vehicle could potentially come into contact, a driver should reasonably be expected to be aware of and to do what is necessary to accommodate for the effect of the "blind spots" of his or her vehicle. Mr. Lattimore expressly testified that he did not do that.

[45] Accordingly, in the view of the Court, blind spots notwithstanding, the reasonable standard to be applied to a driver in such circumstance is that they will, at a minimum, see and mentally note any pedestrians on or immediately proximate to the cross-over and operate the vehicle in such a manner as to ensure the vehicle does not come into contact with the pedestrian.

[46] When they do not do that, and there is no evidence that the pedestrian acted in an unexpected, irrational or unpredictable manner, it supports a finding that they have, prima facie, failed to exercise due care and attention.

[47] Given that Mr. Lattimore turned his vehicle and struck a pedestrian with the front portion of the vehicle that is in front of his driver's position, and that that pedestrian was determined by the Court to have been in a position on the roadway where they had both a lawful entitlement to be and could reasonably be expected to be, and that Mr. Lattimore failed to see or to mentally note the presence of the pedestrian, and that the truck was exiting the intersection through the south bound lane of Brant St., the Prosecution has made out, prima facie that Mr. Lattimore failed to exercise the degree of care and attention that was due in the circumstances.

Due Diligence

[48] It is well established that the offences with which Mr. Lattimore has been charged are strict liability offences and the prosecution, having made out the actus reus, it is open then to the defendant to establish that he had been duly diligent. As provided for in the Supreme Court's decision in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299:

The correct approach in public welfare offences is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheries, [1971] S.C.R. 5, and to the virtual impossibility in most regulatory cases of proving wrongful intention, and also, in rejecting absolute liability, admitting the defence of reasonable care. This leaves it open to the defendant to prove that all due care has been taken. Thus while the prosecution must prove beyond reasonable doubt that the defendant committed the prohibited act, the defendant need only establish on the balance of probabilities his defence of reasonable care.

[49] In addition to describing in his evidence what he did to take care to make the turn in safety, the ASF also conveyed what Mr. Lattimore's told the police at the time, that there were no screams and no one yelled at him.

[50] While the Court accepts that Mr. Lattimore exercised some care and did pay some attention to his surroundings, he has not proven to the Court, on a balance of probabilities, that it was the level of care and attention that an ordinary driver would give in the particular circumstances of this situation. The concept of due attention must, in the view of the Court, include seeing what is there to be seen and having it register in the mind of the driver so that it informs the actions and reactions of the driver.

[51] By his own evidence, corroborated by Mr. Davies' recounting of Mr. Lattimore's behaviour in the immediate aftermath of the accident, Mr. Lattimore did not see Ms. Goldberg on the roadway directly in the path of his truck. Given where she was at the point of the collision, given the brief length of time that the truck was in motion and the speed at which it was travelling, and given the surrounding physical circumstances it is the conclusion of the Court that Ms Goldberg was there to be seen by a prudent driver exercising due care and attention.

[52] An issue to be addressed in considering the due diligence defence is that of how she came to be there. In Mr. Lattimore's statement to police at the time, "she came out of nowhere." Clearly, she did not "come out of nowhere". She did not simply materialize in the path of the truck.

[53] The Defence, particularly in its cross-examination of Detective Constable Yourkin and in its Examination-in-Chief of Mr. Lattimore, laid the ground-work for a variety of different scenarios that could explain how Ms Goldberg came to be directly in the path of the truck without Mr. Lattimore seeing her, notwithstanding the efforts he made as described in his testimony to ensure that the turn could be executed safely.

[54] There is no evidence in support of any of the scenarios propounded by the Defence. They remain within the realm of the hypothetical. It is a matter of law that the Prosecution is not required to disprove any and all hypothetical or speculative alternative scenarios. The propositions that Ms Goldberg may, for example, have entered Brant Street quickly from either the park, or the west curb or the east curb of Brant St., or that she was in one of Mr. Lattimore's blind spots and remained in a blind spot as both she and the truck came together, or that she was running, or that she may have been approaching from the south, are speculative. There is no evidence as to her movements up to the point of collision and the forensic examination of the scene shed no further light on the point.

[55] While alternative scenarios may be within the realm of possibility, they do not, in the view of the Court, amount to being probable. They would require the Court to conclude, amongst other things, that Ms Goldberg, with the lighting conditions as they were, being negligent as to her own safety, and despite having the traffic and pedestrian control signals in her favour, walked or ran into the path of a vehicle of the size of Mr. Lattimore's, that was generating an engine noise that, as Mr. Lattimore testified, was quite loud and that, notwithstanding usual city noises, would have warned of its approach. Again, while these scenarios may have been possible, they do not rise to the level of probable. Beauchamp informs us that drivers cannot be expected to operate in a state of anxiousness that other drivers or pedestrians, under observation [emphasis added], will conduct themselves at a critical moment in disregard of themselves. As MacDonnell, J. stated in Globocki:

A driver is entitled to make reasonable assumptions about the behaviour expected of other users of the road, and it is not unreasonable to assume that a pedestrian crossing the roadway at a time when vehicles are approaching will not simply walk in front of oncoming vehicles.

[56] By extension, neither can the Court assume that a pedestrian would do such a thing. It is less probable rather than more probable that they would.

[57] It should also be noted at this point that, while the analysis offered by Justice MacDonnell in Globocki is instructive to this Court, the fact situation is distinguishable from the instant case. In Globocki, the Justice described the pedestrian's conduct as "jaywalking". The victim in that case entered the roadway at other than a pedestrian cross-walk or cross-over, crossed the curb lane, a live lane of traffic, before entering the lane in which the defendant was travelling. By inference, they acted with some degree of disregard for their own safety. There is no evidence of such conduct by Ms Goldberg.

Conclusion

[58] For the reasons outlined above, I find that the actus reus of Careless Driving is made out by the Prosecution and that the Defence has not established that Mr. Lattimore was duly diligent in the circumstances. Accordingly, there will be a finding of guilt on that count.

[59] With respect to the charge of Turn – Not in Safety, the focus of the reasons above have been with respect to the charge of Careless Driving. As should be evident from the outline of the evidence, an element of the failure to exercise due care and attention was the act of turning the vehicle in a manner that was unsafe.

[60] The rule against multiple convictions in R. v. Kienapple (1975), 15 C.C.C. (2d) 524 (S.C.C.) applies when the act that underlies the offence is sought to be used again to constitute the factual basis for another offence. The accused cannot be convicted of two or more offences committed by one single act with the same or substantially common elements.

[61] Accordingly, a conditional stay of proceedings will be enter for this charge, which condition will expire upon the completion of any appeal proceedings or the expiration of any appeal period, at which time and subject to any appeal court ruling, it will become permanent.

Released: October 31st, 2013

Signed: Justice of the Peace M.H. Conacher

R. v. Allen Lattimore, 2013 ONCJ 578

Case Summary