IN THE MATTER OF THE HIGHWAY TRAFFIC ACT, R.S.O. 1990, c. H.8

Between

Her Majesty The Queen prosecutor

and

Mukesh Sonnilal defendant

Ontario Court of Justice

Brampton, Ontario

Before: Quon J.P.

Reasons for Judgment

Charge

Section 130 H.T.A. – "Careless Driving"

Trial held: June 20 and September 4, 2013

Judgment rendered: February 28, 2014

Counsel

V. Aujla, Assistant Crown Attorney
R. Mann, Counsel for the Defendant

Cases Considered or Referred To

Statutes, Regulations and Rules Cited

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 130

Reference Material Cited

Archibald, T., Jull, K., and Roach, K. Regulatory And Corporate Liability: From Due Diligence To Risk Management (Aurora, Ontario: Canada Law Book Inc., 2007).

Exhibits Entered

Exhibit "1" - Photograph of Bovaird Drive in the City of Brampton looking eastbound, numbered Photo One, taken by Cst. James Lidstone on July 26, 2012, shortly after the accident (1 page).

Exhibit "2" - Photograph of Bovaird Drive in the City of Brampton looking eastbound, numbered Photo Four, taken by Officer James Lidstone on July 26, 2012, shortly after the accident, showing the green four-door Pontiac located near bushes or shrubs, tire skid marks visible from the curb going over onto the small boulevard of grass, onto the pathway, and onto the patch of grass. Two tarps visible, one some distance from the motor vehicle and one on the vehicle (1 page).

Exhibit "3" - Photograph of Bovaird Drive in the City of Brampton looking eastbound towards the southside of the road, numbered Photo Five, taken by Cst. James Lidstone on July 26, 2012, shortly after the accident, showing tire marks that go up onto the curb, onto the boulevard of grass, onto the pathway, and then onto the patch of grass. The green four-door Pontiac is visible with an emergency blanket hanging from the driver's side of the vehicle, as well as emergency blankets placed near the retaining wall (1 page).

Exhibit "4" - Photograph taken closer to the accident scene, numbered Photo Six, taken by Cst. James Lidstone on July 26, 2012, shortly after the accident, showing tire marks that go from the curb over onto the boulevard of grass, onto the pathway, onto the body of the grass. The green four-door Pontiac with emergency blankets on the driver's side of the vehicle is visible as well as two emergency blankets placed near the retaining wall (1 page).

Exhibit "5" - Photograph of Bovaird Drive in the City of Brampton looking westbound, numbered Photo Nine, taken by Cst. James Lidstone on July 26, 2012, shortly after the accident, showing the front of the green Pontiac Bonneville with emergency blankets on the driver's side of the vehicle and police emergency vehicles visible in the middle of the photograph (1 page).

Exhibit "6" - Photograph with view looking southbound across Bovaird Drive in the City of Brampton, numbered Photo Fifteen, taken by Cst. James Lidstone on July 26, 2012, shortly after the accident, showing the three eastbound lanes of Bovaird Drive. The green four-door Pontiac Bonneville with emergency blankets tied to yellow rope on the driver's side of the vehicle and a large tree or shrubbery is visible on the left side. An area of smaller bushes and shrubbery is visible on the right side with two emergency blankets and another large area of green shrubbery or trees (1 page).

Exhibit "7" - Photograph of Bovaird Drive in the City of Brampton looking eastbound, numbered Photo Seventeen, taken by Cst. James Lidstone on July 26, 2012, shortly after the accident, showing tire marks that go from the curb onto the boulevard of grass, onto the pathway, and onto the actual grass portion. The skid marks travel in an eastbound direction. The green four-door Pontiac with emergency blanket on the driver side of the vehicle, large trees or shrubbery, and emergency blankets placed by Officer Aujla are visible (1 page).

Exhibit "8" - Photograph of Bovaird Drive in the City of Brampton looking eastbound, numbered Photo Twenty-Seven, taken by Cst. James Lidstone on July 26, 2012, shortly after the accident, showing the driver's side of the vehicle of the green Pontiac Bonneville, with the driver's sideview mirror being raised and angling in an upward direction. The rear left passenger side window is not there as it had been smashed out. A large dent is visible on the rear left passenger door and body matter or bodily fluids are visible on the B-pillar that separates the driver's side door and the rear left passenger door (1 page).

Exhibit "9" - Copy of Vehicle Mechanical Inspection Report and 16 photographs of the defendant's vehicle attached to the report, prepared by Chris DiMartino, licensed mechanic for Peel Regional Police, based on his examination of the defendant's motor vehicle made on July 26, 2012, admitted as evidence on consent by the defence (20 pages).

Exhibit "10" - Copy of Cst. Bruno Pupo's curriculum vitae admitted during the voir dire held to determine Cst. Pupo's qualifications as an expert witness on accident and collision reconstruction (9 pages).

Exhibit "11" - Copy of Fatal Motor Vehicle Collision Report for occurrence number 2012-247079.21 authored by Cst. Bruno Pupo, the accident and collision reconstructionist, dated August 6, 2012 (14 pages).

Exhibit "12" - 18 photographs taken by James Lidstone of the Peel Regional Police on July 26, 2012, of the defendant's vehicle, the location of the tire marks starting from the centre lane of Bovaird Drive and traversing in a southerly direction across the curb lane, the grass boulevard, the sidewalk and to the defendant's vehicle sitting in the grassed area just north of the concrete sound barrier wall, damage on the defendant's vehicle, and the location of the defendant's vehicle from different perspectives (18 pages).

Exhibit "13" - Copy of computer-generated scaled drawing of accident area of Bovaird Drive East prepared from readings obtained by the Total Station survey Instrument on July 26, 2012, and drawn and prepared by Cst. Wang of the Major Collision Bureau of the Peel Regional Police on August 18, 2012, indicating scale is 1:500 and showing location of light pole with speed limit sign, eyeglasses, blood-stained foliage, sound barrier wall, location of the defendant's motor vehicle, and tire marks of defendant's motor vehicle (1 page).

Exhibit "14" - Copy of Environment Canada Hourly Data Report of weather conditions, visibility, and temperature recorded at Toronto Lester B. Pearson International Airport on July 26, 2012 (2 pages).

Exhibit "15" - Copy of transcript of Mukesh Sonnilal's videotaped statement made on July 26, 2012, at the offices of the Major Collision Bureau of Peel Regional Police, to Cst. Christopher Furlotte, where video recording started at 6:32 a.m. and ended at 9:24 a.m. (45 pages).

1. INTRODUCTION

[1] When 58 year-old Charles Sullivan stepped out of his house in the early morning of Thursday, July 26, 2012, sometime before 5:45 a.m., to go for an early-morning jog before he would head off to work, little did he know that he would not be going to work that morning. Or, that he would not be returning home.

[2] And, when 56 year-old Mukesh Sonnilal left his house at 5:20 a.m. that same morning to drive to work, little did he know that the motor vehicle he would use for driving to work that morning would unexpectedly lose control, jump the curb, and hit someone on a sidewalk who had been out for an early morning jog and who would regrettably die from the severe injuries he had received from the collision.

[3] Unfortunately, there were no independent witnesses that had observed what had occurred in the eastbound lanes of Bovaird Drive just before Mukesh Sonnilal's vehicle lost control, went over the curb, and struck Charles Sullivan who had been a pedestrian on the sidewalk. Nor had there been any data that could be obtained from the defendant's vehicle or calculations made from measuring the tire marks left at the accident scene that could be used to determine the speed that the defendant's vehicle had been travelling at just before it lost control, abruptly left the roadway, and struck the pedestrian. As for Sonnilal's recollection of the event, he only recalls that he had applied the brakes as he moved his vehicle from the center lane of the three eastbound lanes of Bovaird Drive to the curb lane when his vehicle had suddenly and unexpectedly lost control, spun, and went over the curb and onto the sidewalk on the southside of Bovaird Drive. Furthermore, when a police officer had questioned Sonnilal some 64 minutes after the accident had occurred, Sonnilal had no knowledge of how or why his vehicle had spun out of control and abruptly left the roadway.

[4] However, after an investigation was conducted by the Peel Regional Police into the motor vehicle and pedestrian collision that had occurred on the sidewalk located on the southside of Bovaird Drive, just west of Dixie Road, in the City of Brampton, and which had led to the death of Charles Sullivan, the Peel Regional Police charged Mukesh Sonnilal ("the defendant") on August 22, 2012, with committing the offence of careless driving, contrary to s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8.

[5] Moreover, the Peel Regional Police had concluded from their investigation into the accident that the defendant had not driven with all reasonable care for the weather and road conditions at the critical time, and that he had driven his vehicle faster than it would have been reasonably appropriate or prudent to do so at the time, considering that the road had been wet from the rain that had been falling at the time or that had fallen in copious amounts minutes before the accident had occurred.

[6] On the other hand, in his defence to the careless driving charge, the defendant testified that when he had been driving in the middle of the three eastbound lanes on Bovaird Drive just before the intersection at Dixie Road, the road had been dry at the critical time; that it had not been raining on Bovaird Drive; that he had been driving between 50 to 60 kilometers per hour in a posted 70 k.p.h. speed zone; that he had not been in a rush to get to work which was still located several kilometers east of the accident scene; and that when he had decided to move his vehicle from the middle lane of three lanes to the curb lane he had pressed on his brakes and at that exact moment when he had applied his brakes his vehicle suddenly and unexpectedly lost control, spun, and jumped the curb, and then travelled across a grass boulevard and then struck Charles Sullivan, who had been a pedestrian on the sidewalk on the southside of Bovaird Drive.

[7] Moreover, the defendant in his closing argument contends that what had caused or made his vehicle go out of control and jump the curb had been from a mechanical defect in his vehicle that he had been unaware of or that would not be easily detected. Specifically, the defendant submits that the licensed mechanic, who had examined and inspected the defendant's vehicle shortly after the collision had occurred, had testified that one of the brake lines on the defendant's vehicle had been severely corroded and that the rear brake lines had not been properly attached to his vehicle, which the defendant submits had been what had caused his brakes to fail at that critical moment. Accordingly, the defendant contends this particular evidence clearly establishes that the defendant's vehicle had mechanically malfunctioned and that the accident had occurred due to this mechanical failure, which had been beyond the control of the defendant.

[8] In addition, the defendant submits that the prosecution has failed to lead and establish any reliable and cogent evidence that proves beyond a reasonable doubt that the defendant has committed the actus reus of the careless driving offence. Moreover, the defendant contends that there is no evidence that the defendant had been driving his vehicle at a speed that had been too fast for the road and weather conditions at the critical time; that there is no evidence that the defendant's driving had departed from that of an ordinary and prudent driver for the circumstances; and that there is no evidence the defendant had disregarded the safety of others using the highway at the critical time. As such, the defendant submits that the careless driving charge should be dismissed and an acquittal be entered for the defendant.

[9] In reply to the defendant's arguments, the prosecution submits that even though Cst. Bruno Pupo, the accident and collision reconstructionist, had prepared a report about the accident in which Cst. Pupo had concluded that the defendant's failure to drive with due care and attention had caused his vehicle to rotate out of control, leave the road, and hit the pedestrian because the defendant had been driving his vehicle too fast for the weather and road conditions at the critical time, and in which Cst. Pupo had primarily based his conclusion on three premises: (1) that it had been raining steady with heavy rains; (2) that visibility had been poor; and (3) that some areas of the roadway had water pooling, it has been conceded by the prosecution that Cst. Pupo's opinion is of limited assistance, since those three premises had not been proven beyond a reasonable doubt in the prosecution's case. In addition, the prosecution submits that despite Cst. Pupo being qualified as an expert witness on the area of accident and collision reconstruction, the prosecution nevertheless concedes that Cst. Pupo's opinion cannot be relied upon in assisting the determination of whether the defendant had driven with due care and attention prior to the accident occurring.

[10] On the other hand, the prosecution submits that the defendant's testimony is not reliable or credible, since the defendant's testimony at trial contains inconsistencies and contradictions, especially when the defendant's testimony had contradicted his prior unsworn statement that he had given to Cst. Furlotte, who had taken the defendant's statement on July 26, 2012, some 64 minutes after the accident had occurred and when the defendant's memory would have been more fresh than on June 20, 2013, when he had testified at the trial. In particular, the defendant had informed Cst. Furlotte that the road where his vehicle had left the road had been wet and that it had been drizzling, while at the trial he had testified that Bovaird Drive had been dry and that it had not been raining whatsoever on Bovaird Drive. In addition, the prosecution submits there is no conclusive evidence that the brakes on the defendant's vehicle had been defective or that they had not been operating properly, or that the defendant's vehicle had not been operating properly from some other mechanical defect at the time the defendant's vehicle had spun out of control and jumped the curb. Moreover, the prosecution contends that the defendant has failed to provide a reasonable explanation as to why his vehicle had lost control on Bovaird Drive, spun, and then struck the pedestrian who had been on the sidewalk on the southside of Bovaird Drive, to rebut an inference of negligence.

[11] Accordingly, even though the prosecution has not proven beyond a reasonable doubt that it had been raining steadily and heavily, that visibility had been poor, and that water had been pooling on the road at the critical time in the eastbound lanes of Bovaird Drive, the prosecution still submits that it can be reasonably inferred from the circumstantial evidence that has been proven beyond a reasonable doubt, that the road surface for the eastbound lanes of Bovaird Drive had still been wet, and since the defendant had not provided a reasonable explanation for why the defendant's vehicle had lost control and went onto the sidewalk to rebut an inference of negligence, then the only reasonable inference that can be made about whether the defendant had been driving without due care and attention or without reasonable consideration for other persons using the highway is that the defendant had failed to drive as a reasonably prudent driver would have for the circumstances, since it can be reasonably inferred from the circumstantial evidence that the defendant had been driving his vehicle at a rate of speed faster than the weather and road conditions would warrant and that the defendant had not been driving at the appropriate speed for the weather and road conditions at the critical time, and which the prosecution submits is circumstantially evidenced by the amount of damage done to the defendant's vehicle, which included a large dent in the rear driver's side door where Charles Sullivan had come into contact with the defendant's vehicle and the window of the rear driver's side door being smashed out; the severe injuries sustained by Charles Sullivan from being struck by the defendant's vehicle; that Charles Sullivan had been thrown 13 meters south of the sidewalk after being struck by the defendant's vehicle; and the defendant's vehicle rotating clockwise on the road and being able to jump the curb while the vehicle had been moving sideways, such that the defendant's vehicle could not have been travelling at a slow speed.

[12] As such, the facts at issue are whether the brakes on the defendant's vehicle did fail suddenly and unexpectedly and had been what had caused the vehicle to rotate out of control and go over the curb at the critical time when the defendant had been driving eastbound on Bovaird Drive. And, if the brakes had suddenly and without warning failed and had been the cause of the defendant's vehicle spinning out of control, then the defendant may have an explanation that would rebut the inference that he had been driving without due care and attention or without reasonable consideration for others using the highway at the critical time. However, if the brakes on the defendant's vehicle had not been defective or inoperative at that critical moment, then the issue which has to be decided next is whether the road surface of the eastbound lanes of Bovaird Drive had been wet from rain drizzling or falling, or whether it had been wet from a previous heavy and steady rainfall, or whether it had been dry at the critical time, since the defendant had testified that it had been dry. And, if the roads had been wet at the critical time, the issue then becomes whether the defendant had been operating or driving his vehicle at an appropriate or prudent speed on Bovaird Drive for the weather and road conditions, just before the accident had occurred.

[13] Additionally, the trial of this careless driving charge had been held over two days: June 20 and September 4, 2013. In the trial, four witnesses had testified. Three had testified for the Crown, while the defendant testified in his own defence. Moreover, after final submissions were completed, I reserved judgment and adjourned the matter until February 28, 2014, to render my judgment. These, therefore, are my written reasons for judgment:

2. THE CHARGE

[14] Under a Part III information sworn on August 22, 2012, the defendant in this proceeding has been charged with committing the offence of "careless driving", contrary to s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8:

Mukesh Sonnilal

on or about the 26th day of July, 2012 at the City of Brampton in the Central West Region did commit the offence of did unlawfully operate a motor vehicle, licence number [removed for privacy reasons] on a highway, namely on Bovaird Drive, carelessly, contrary to the Highway Traffic Act, section 130.

3. FACTUAL BACKGROUND

(a) ADMISSIONS OR AGREED FACTS

[15] For the trial, the defendant has conceded that the date, time, jurisdiction, and identity are not at issue, that the defendant had been the only driver of the vehicle in question, and that the only issue is whether the Crown has proven the defendant has committed the offence of careless driving. In addition, the defendant admits that there is no issue with the voluntariness of the statement made by the defendant on July 26, 2012, to a Cst. Furlotte, a police officer with the Peel Regional Police, at the offices of the Major Collision Bureau located at 180 Derry Road, approximately 64 minutes after the accident had occurred.

[16] Furthermore, the defendant agrees to the following facts for the trial:

(a) On Thursday July 26, 2012, at approximately 5:45 a.m., Mukesh Sonnilal, the defendant, was operating a 1997 Pontiac Bonneville, a four-door, green in colour motor vehicle bearing the Ontario licence plate [removed for privacy].

(b) The defendant was alone in his vehicle at the time.

(c) The defendant was travelling eastbound on Bovaird Drive in the City of Brampton in the area in question just west of Dixie Road.

(d) Bovaird Drive is a six-lane roadway with three eastbound lanes being separated from the three westbound lanes by a grass median.

(e) The posted speed limit on Bovaird Drive is 70 kilometres per hour.

(f) The roads were paved asphalt with good markings and in good condition.

(g) Bovaird Drive is straight and flat and well illuminated.

(h) The collision occurred approximately 45 minutes after sunrise.

(i) Approximately 300 metres west of the traffic light controlled intersection of Bovaird Drive and Dixie Road the defendant lost control of his vehicle. The vehicle rotated clockwise and mounted the south curb. It continued rotating out of control and struck a pedestrian who was on the sidewalk.

(j) The pedestrian was Charles Joseph Sullivan. Tragically, Charles Sullivan was thrown approximately 13 metres.

(k) Charles Sullivan had injuries from being struck by the defendant's vehicle and had died within 24 hours.

(l) No other vehicles were involved in this collision and there were no independent witnesses.

(B) ADDITIONAL BACKGROUND

[17] The defendant, Mukesh Sonnilal is presently 57 years old and the maintenance supervisor at the Chrysler assembly plant located at 2250 Williams Parkway East, in the City of Brampton. Furthermore, the defendant has had a driver's license for 38 years. On the day of the tragic accident, the defendant had been driving eastbound on Bovaird Drive on his way to work at the Chrysler assembly plant, which is located several kilometers east of the intersection of Bovaird Drive and Dixie Road.

[18] Moreover, the defendant had testified that he had left his house at 5:20 a.m. that morning to go to work.

[19] The defendant also testified that his usual route to work had been to drive east on Earlsbridge Boulevard, then to drive south on McLaughlin Road North, then to drive east on Sandalwood Parkway West to Highway 410, then to drive south on Highway 410, and then to exit Highway 410 at the first ramp for Bovaird Drive, and then to drive east on Bovaird Drive to Bramalea Road, then to drive south on Bramalea Road to North Park Drive and then to exit North Park Drive and drive into the Chrysler assembly plant located at 2250 Williams Parkway East in Brampton.

[20] In addition, the motor vehicle driven by the defendant was a green, four-door 1997 Pontiac Bonneville motor vehicle. The odometer reading on the vehicle at the time of the accident was 316,974 (see Vehicle Mechanical Inspection Report, Ex. 9, p. 1). Therefore, at the time of the accident, the vehicle would have been on the road for approximately 15 years. The vehicle also showed signs of severe rust and corrosion on the rocker panels, floor, rear bumper, and on the flex part of one of the brake lines. In addition, the rear brake lines had not been secured to the frame of the vehicle.

[21] Moreover, the defendant's vehicle had been equipped with an airbag control module, but no event had been registered on the control module although an attempt had been made to download or retrieve data or information from the control module (see Fatal Motor Vehicle Collision Report, Ex. 11, p. 9).

[22] Furthermore, damage had been visible and physically present on the defendant's vehicle. There had been a large dent on the rear driver's side door, the window in the rear driver's side door had been missing, glass shards were present in the rear seat, and the driver's side outside mirror had been broken.

[23] In addition, there had been orange-coloured fatty tissue embedded in the front edge of the window frame of the rear driver's side door.

[24] The accident had occurred at approximately 5:45 a.m. on the southside of Bovaird Drive, just east of Dixie Road, in the City of Brampton.

[25] After the defendant's vehicle had spun or rotated clockwise two times, it came to rest by the sound barrier wall on the southside of Bovaird Drive, facing in an easterly direction. The defendant, who had believed his vehicle had hit someone, then tried to exit his vehicle using the driver's door to see if this had been the case, but the door would not open. He then had to exit through the front passenger door. When the defendant was out of his vehicle, he observed someone lying on the grass surface south of the sidewalk. The defendant testified that he had observed a male curled up, breathing, with his eyes open, but not conscious. Then, the defendant called the 9-1-1 operator indicating that he had believed he had hit someone.

[26] Cst. Aujla, a police officer with the Peel Regional Police, had responded to the radio call he had received at 5:46 a.m. about the motor vehicle and pedestrian accident on Bovaird Drive, and arrived at the scene at 5:51 a.m. Cst. Aujla also testified that when he arrived at the scene, the weather had been overcast and the temperature had been 20 degrees Celsius. In addition, Cst. Aujla testified that the road conditions at that time had been wet from a previous rainfall and that traffic had been light to moderate. However, Cst. Aujla said that when he arrived at the scene it had not been raining and that the sun had already been out and that there had been no fog in the area. Cst. Aujla also said he had no difficulty with visibility and did not need to use his flashlight.

[27] In addition, when Cst. Aujla arrived at the scene, he said he had observed a green-coloured vehicle on the grass by the sound barrier wall, facing in a northeast direction. Cst. Aujla then said he only had a short conversation with the defendant about the location of where the pedestrian had been laying on the ground. At that point, Cst. Aujla said he attended to the pedestrian, while Cst. Furlotte had been the police officer who had actually interviewed and took a statement from the defendant at the offices of the Major Collision Bureau at 180 Derry Road in the City of Mississauga, some 64 minutes after the accident had occurred.

[28] Furthermore, Cst. Aujla had observed that the pedestrian, later identified as Charles Sullivan, was a white male person who had been still breathing and laying in a fetal position. Cst. Aujla also said he had observed Charles Sullivan wearing running shoes, socks, a pair of shorts and a yellow T-shirt.

[29] In addition, Charles Sullivan had sustained severe injuries from being struck by the defendant's motor vehicle. The injuries Charles Sullivan sustained were a broken right femur and pelvis, massive head trauma, and a ruptured pupil (see Fatal Motor Vehicle Collision Report, Ex. 11, p. 7).

[30] Furthermore, Charles Sullivan's house is approximately 500 meters west of the location of the accident (see Fatal Motor Vehicle Collision Report, Ex. 11, p. 7).

[31] Moreover, Charles Sullivan had been struck when he had been on the sidewalk that was located south of Bovaird Drive. In addition, the force of the impact from the defendant's motor vehicle had thrown Charles Sullivan approximately 13 meters south of the pedestrian sidewalk, where he ended up lying on the grass area north of the sound barrier wall. The defendant had also told Cst. Furlotte on July 26, 2012, that he had observed the pedestrian going westbound on the sidewalk, either walking or running.

[32] An ambulance had also attended the scene and took Charles Sullivan to the emergency room of the Brampton Civic Hospital and then later Sullivan had been transported to Sunnybrook Health Services. Unfortunately, Charles Sullivan succumbed to his injuries and died within 24 hours of being struck by the defendant's motor vehicle.

[33] In addition, Bovaird Drive East is a major road in Brampton and is a paved asphalt roadway that is comprised of six lanes, in which three are westbound lanes and three are eastbound lanes. The eastbound and westbound lanes are also separated by a grass median. At the location where the accident occurred on Bovaird Drive East, the road is straight and flat.

[34] Furthermore, the defendant had testified that just before the accident occurred he had been travelling in the middle lane of the three eastbound lanes of Bovaird Drive and that he had been changing lanes from the middle lane to the curb lane, so he could make a right turn on Bramalea Road, which is several intersections east of Dixie Road. Furthermore, the defendant had testified that he had pressed on his brakes while he changed lanes and that his vehicle had suddenly and unexpectedly lost control and went over the curb and hit the pedestrian, who had been on the sidewalk.

[35] In addition, the defendant's motor vehicle had travelled from the middle lane of the three eastbound lanes of Bovaird Drive across the curb lane, then across a grass boulevard, then across the sidewalk, then across another grass area before it came to rest just north of the sound barrier wall.

[36] Furthermore, Cst. Bruno Pupo, who was qualified as an expert witness in the area of collision and accident reconstruction and who had testified at the trial, had been coincidentally travelling to work and driving westbound on Bovaird Drive at approximately 5:30 a.m. In addition, Cst. Pupo testified that at the time he had passed the spot where the accident would later occur on the eastbound side of Bovaird Drive, it had been raining steadily and heavily, so that the water had been puddling on the road and that the visibility had been reduced.

[37] In addition, the defendant had testified that during his journey that morning on July 26, 2012, from his home to the location where the accident had occurred on the southside of Bovaird Drive, just east of Dixie Road, he had gotten off Highway 410 at the Bovaird Drive exit and then had to stop for three red lights, in which he said that his brakes had been operating properly at those three stops.

[38] Furthermore, after the accident, the defendant's motor vehicle had been taken to the police garage, where Chris DiMartino, a licensed mechanic employed by the Peel Regional Police, had examined and inspected the defendant's vehicle. DiMartino had testified that he had noticed corrosion on one of the brake lines, which he noticed had been larger in diameter than the other brake lines. However, DiMartino said he could not go inside the vehicle to test the brakes or apply the brakes to see if they were functioning properly because there had been biohazards on or in the vehicle and he did not have the proper clothing to wear that would allow him to enter the defendant's vehicle to test the brakes. He also said he did not drive or do a road test of the defendant's vehicle to see if the brakes had functioned or worked properly for the same reason that there had been the presence of biohazard matter on or in the vehicle.

[39] In addition, when DiMartino had yanked on the brake line that had been corroded, which carries brake or the hydraulic fluid that is used to power the brakes when the brakes are applied, the brake line had fallen apart. And, although DiMartino could not determine whether the brakes had been still functioning properly after the accident, his examination of the master cylinder and brake fluid reservoir indicated that the master cylinder which pushes out the brake or hydraulic fluid through the brakes lines had been functioning properly and that the reservoir contained sufficient brake or hydraulic fluid. In addition, his examination of the steering and ball joints also showed them to be functioning properly. Furthermore, the brake pads, brake drums, and brake calipers when measured by DiMartino had fallen within the permitted manufacturer's specifications.

[40] Moreover, the weather conditions as indicated in the Hourly Data Report for July 26, 2012, recorded by Environment Canada at Toronto Lester B. Pearson International Airport that had been entered as Ex. 14, indicated that at 4:00 a.m. the weather was "rain, fog", the visibility in kilometers was "8.0" kms., and the temperature was "19.2" degrees Celsius; while at 5:00 a.m. it indicated the weather was "fog", the visibility in kilometers was "8.0" kms., and the temperature was "19.7" degrees Celsius; while at 6:00 a.m. it indicated the weather was "rain showers", the visibility in kilometers was "19.3" kms. and the temperature was "21.4" degrees Celsius. However, this report also stated that "All times are specified in Local Standard Time (LST) and to "Add 1 hour to adjust for Daylight Saving Time where and when it is observed". Therefore, the accident had occurred between the local standard times for the 4:00 a.m. data and the 5:00 a.m. data recorded in this report for July 26, 2012. Moreover, on July 26, 2012, Daylight Saving Time would have been in effect.

[41] In addition, at p. 6 of the Fatal Motor Vehicle Collision Report entered as Ex. 11, sunrise for July 26, 2012, was indicated to be at 5:00 a.m., which had been obtained from the National Research Council Canada sunrise/sunset calculator.

[42] Furthermore, in the defendant's statement that the defendant had given to Cst. Furlotte on July 26, 2012, approximately 64 minutes after the accident had occurred, the defendant did not inform Cst. Furlotte there had been any problem with his brakes, only that the vehicle suddenly and unexpectedly lost control when he applied the brakes while he had been changing lanes from the middle lane to the curb lane.

(c) SUMMARY OF TESTIMONY

[43] Four witnesses testified during the trial. The following is a summary of their testimony:

(1) Cst. PAUL AUJLA (the police officer who had arrived first at the accident scene)

[44] Cst. Paul Aujla testified he is employed with the Peel Regional Police. He also said that on Thursday July 26, 2012, at 5:46 a.m., he had received a radio call in respect to a pedestrian that had been struck in the area of Bovaird Drive and Dixie Road in the City of Brampton. In addition, he said he had received information that someone had called, who had believed that they had hit a person, but could not see where that person had gone.

[45] In addition, Cst. Aujla said he had arrived at 5:51 a.m. in the area of where the accident had occurred, which had been in the eastbound traffic of Bovaird Drive, west of Dixie Road.

[46] Furthermore, Cst. Aujla described Bovaird Drive as being a highway, with three lanes going eastbound and three lanes going westbound that is divided by a concrete median.

[47] Moreover, Cst. Aujla said the area is a posted 70 kilometers per hour zone.

[48] Cst. Aujla also said that when he had arrived at the scene he had been alerted to a green Pontiac Bonneville vehicle that was on the southside of Bovaird Drive, south of the curb lane. He then said he had parked his cruiser right beside the green Pontiac motor vehicle, but in the curb lane. In addition he described the area of the accident as being south of the three lanes of traffic where there had been a small patch of grass that was a boulevard, then a pathway or sidewalk that was followed by a further patch of grass, and then a retaining sound barrier wall.

[49] Furthermore, Cst. Aujla said he had observed the green four-door vehicle on the south side of Bovaird Drive and on the patch of grass closest to the sound barrier retaining wall. He also said this vehicle had been facing northeast. He also said he had observed a gentleman standing outside of that vehicle. He then said he had a very brief conversation with that person.

[50] Moreover, as part of his narrative and not for the truth of its contents, Cst. Aujla said he had asked the person he saw standing outside of the vehicle, "Did you hit someone?" In replied to the query, the person said, "Yes". Cst. Aujla then asked, "Where is he?" The person then pointed to an area that was just west of where the vehicle had been positioned. Cst. Aujla then said he had observed by the retaining wall a white male, who was approximately between the ages of 55 and 65, with a thin build, grey and white hair, and a goatee. Also, Cst. Aujla said this white male was wearing running shoes, socks, a pair of shorts, and a yellow t-shirt that was partially off. Moreover, Cst. Aujla said the male's left arm had been outside of the t-shirt and the t-shirt had still been draped on part of his body. Cst. Aujla also said the male person was in a curled position that was almost a fetal position. In addition, Cst. Aujla said the male person's head had been pointing westbound while his feet were pointing eastbound. Furthermore, Cst. Aujla said the male person was still breathing, his eyes had been open, but he had been completely unresponsive to any verbal commands or light physical touch. Also, Cst. Aujla said that since he had concerns that other parties may have been also injured from the car accident, he said he began a quick search of the surrounding area, including underneath the green four-door vehicle.

[51] Cst. Aujla also said he noted the four-door green-coloured vehicle was a 1997 Pontiac Bonneville, with Ontario licence plate number [removed for privacy reasons]. He also said the vehicle had VIN number lG2HX52K8VH272531. He also said the vehicle was registered to Mukesh Sonnilal.

[52] Furthermore, in regards to damage to the green Pontiac motor vehicle, Cst. Aujla said he observed that it had a broken rear left passenger window, a dent on the rear left door, and that there had been body matter or body fluids on the B-pillar, which is the pillar that separates the driver's door and the rear left passenger door.

[53] In addition, shortly after he had arrived, Cst. Aujla said paramedics and Brampton Fire arrived. He also said they had immediately looked after the gentleman that had been lying on the ground. In addition, Aujla said that he had been advised that the injured man was going to be rushed to Brampton Civic Hospital and accompanied by other officers.

[54] Cst. Aujla also said at that point he began to preserve the scene for other officers and had placed emergency blankets over the area where the gentleman had been laying on the ground. He also said he had placed two emergency blankets at the scene of the accident. In addition, he said he had placed one of the tarps on top of where the gentleman had been laying for continuity of where he had been, as well as to protect that particular area from the environment.

[55] In addition, Cst. Aujla said he had made observations of the traffic, road, and weather conditions. He said the temperature had been about 20 degrees Celsius and the weather had been overcast, but that there had been no fog. In addition, he said the road had been wet from a previous rainfall and that traffic at that time had been light to moderate.

[56] Furthermore, Cst. Aujla said that in driving to the scene he had first travelled northbound on Naismith Street, which is the intersection just west of where the accident had taken place, and then eastbound on Bovaird. He further said that he had no difficulty with the roads while he had been travelling eastbound on Bovaird. In addition, he said the road had been wet from a previous rainfall, but it had been perfectly drivable. Moreover, he said that he had been trying to get to the scene of the accident as fast as he possibly could and said he did not have any issues in respect to braking or accelerating or making any maneuvers whatsoever.

[57] However, Cst. Aujla said he does not recall what speed he had been travelling at. In addition, he said there is a bit of a distance between the west intersection, which is Bovaird Drive and Naismith Street, to the scene of the accident, and that with any pedestrian accident, he said he would have been trying to get there as soon as he possibly could.

[58] Also, when Cst. Aujla had arrived at the scene he said the sun had already been out and that he had been able to see everything clearly and did not need his flashlight.

[59] In addition, Cst. Aujla said that when the second officer arrived on scene, Cst. Aujla had made certain that the second officer stayed with the driver of the green Pontiac motor vehicle that had pointed out to Cst. Aujla where the injured male had been laying.

[60] Furthermore, Cst. Aujla said he was later informed that the driver of the green Pontiac motor vehicle had been the registered owner of the vehicle with the name of Mukesh Sonnilal.

(2) CHRIS DIMARTINO (licensed mechanic employed by the Peel Regional Police who had examined the defendant's vehicle after the accident)

[61] Chris DiMartino testified that he is currently employed by Peel Regional Police as a licensed mechanic. He also said he holds a 310S certificate, which is a mechanic's license, and that he received this license in 1998. He also said he started working for the Peel Regional Police in 1999.

[62] To obtain his license, DiMartino said he had to take forty weeks of classes and training at Mohawk College, do 6000 hours as an apprentice mechanic, and then write the licensing exam.

[63] In addition, DiMartino said his duties for the Peel Regional Police is to service, maintain and repair police vehicles and do all mechanicals that he is assigned to do, which includes servicing, brakes, re-hauls, transmissions, tune-ups, and brake inspections. He also said that his duties include looking at motor vehicles that are brought in because of an accident and part of an investigation. Furthermore, he said that there are three of them that will do this specific function.

[64] Moreover, for an investigation involving an accident, DiMartino said his duties include doing a vehicle inspection as if he were doing a safety inspection on a purchased vehicle, which includes making sure that all the lights work, all the seatbelts work, the brakes are intact, and that everything is within the vehicle's manufacturer's specifications, and that tires are within specifications. Moreover, he said that anything that has to do with a vehicle's safety through the Ministry of Transportation is what he inspects on the vehicle.

[65] In addition, DiMartino said he has done approximately 70 to 80 inspections of vehicles involved in an accident as part of an investigation. He also said that as part of his inspection he completes or fills out a Vehicle Mechanical Inspection Report.

[66] Moreover, DiMartino said that on July 26, 2012, he had inspected the 1997 Pontiac Bonneville motor vehicle that is the vehicle at issue in this proceeding, which he assumes had taken roughly two to three hours to complete.

[67] DiMartino also said that the first thing he did with the inspection of the Pontiac Bonneville motor vehicle had been to look at the damage on the vehicle and then make a note of where the damage had been on the vehicle. Then he said he tries to determine whether the damage on the vehicle had been from the collision or had it been there previously and makes a note of that as well. From there, he said he then inspects all the tires by inspecting the rims, the tread depth, the tire pressures, the make, and the age of the tire if possible. Then he said he removes the tires and rims and inspects the brake rotors, brake drums, wheel cylinders, and calipers. From there, he said he then measures the brake pads and shoes, and then tries to inspect the master cylinder to see if there had been fluid in it. Then he said he inspects the brake lines, but that in some vehicles he cannot inspect the vehicle to determine whether the brakes are functioning when there is a biohazard in the vehicle. He further said that he would not enter the vehicle if there were a biohazard in the vehicle.

[68] In explaining why he did not actually drive the defendant's vehicle during his examination, DiMartino said that whenever they get a vehicle and there's biohazard in the vehicle, that can be any bodily fluid, he will not enter the vehicle because they do not have the proper protection to use in that vehicle.

[69] Moreover, concerning the presence of a biohazard on or in the 1997 Pontiac Bonneville motor vehicle, DiMartino said he had not entered the vehicle because there had been a biohazard on the vehicle. However, he said that he had been able to do an inspection of the vehicle's brakes, the brake lines, the master cylinder, the calipers, and the wheel cylinders, which had all passed his inspection. He also said he then inspected the steering, the ball joints, tie rod ends, the shocks, and the springs. With regards to the steering, he said he had to make sure all the linkages were correct and that the power steering rack and the pump were working, as well as making sure there had been fluid within the reservoirs.

[70] In addition, DiMartino said he had checked the springs and shocks of the vehicle to make sure everything had been intact and not damaged. Then he said he inspected the frame and the rest of the suspension for the vehicle, which includes inspecting the control arms and the rear suspension, which he said depends on whether the vehicle had control arms or an axle. He also said he would inspect for excessive corrosion at that point. Moreover, he said he would also inspect the exhaust system from the front to the rear to see whether it had any leaks. Then he would inspect all the seats, the windows, the horn, and the wipers to make sure they were all functioning. He also said he would then inspect the air bags to determine if they had been deployed.

[71] However, for what he actually inspected on the defendant's Pontiac vehicle, DiMartino said he observed damage on the left rear door, which he assumed had occurred from the collision. He also said the left rear door did not open because of the damage. He then said that the seats had passed and were all intact and functioning. He also said the mirror on the left side had been damaged from the collision. In addition, he said the horn, windshield wipers, and the windshield defroster and the rear defroster had passed and were functioning. Moreover, he said the windshield washer fluid dispenser had also been functioning.

[72] Then DiMartino said he inspected the tires on the vehicle and said the four tires were all of the same make and size. In addition, he said the tread depth for all the tires had been within the manufacturer's and Ministry of Transportation (M.T.O.) specifications. Moreover, he said the actual air pressure within all four tires were relatively okay, except for the right front tire which had been down to 14 p.s.i., which he said could have possibly been the result of the vehicle mounting the curb. In addition, he said the front rims were both damaged from the collision.

[73] DiMartino then said he inspected the vehicle's brakes, which were power brakes with ABS and four channels. He also said that there had been four ABS connections on the wheels. However, he reiterated that he did not actually drive the vehicle as part of his inspection because of the biohazard in the vehicle, so he said that he could only assume that the vehicle's brakes worked. On the other hand, he said that the parking brakes on the vehicle had been actually applied and it had passed. Furthermore, he said he measured the service disks or front rotors for the brake system and said the left front rotor had been 31.87 millimeters, which he said had been fine for use and within the manufacturer's specifications. In addition, he said the discard or throwaway thickness for the front rotors would be 30.71 millimeters. As for the front right rotor, he said it had measured 31.51 millimeters, which he said is also within manufacturer's specifications. Furthermore, he said that the front rotors do about 70 percent of the braking.

[74] In addition, DiMartino said that for the rear brakes the vehicle had drums, so that an inside micrometer had been used to measure the drums. For the left rear or driver's side rear drum, he said it had measured 225.71 millimeters and had been in accordance with the manufacturer's specifications. He also said the discard measurement would be 226.28 millimeters. Moreover, for the right rear or rear passenger-side drum, he said it had measured 225.81 millimeters, which also had been within the manufacturer's specifications.

[75] After examining the rear drums, DiMartino said he inspected the linings, which are the brake shoes or pads, and the actual friction material that helps the rotor or drum stop. He then said that for the driver's side front wheel, the linings on that front pad measured 9.5 millimeters, which he said had been within the manufacturer's specifications. Moreover, he said the discard value for the front brake pads would be 0.79 millimeters. As for the front passenger-side brake pad, he said it had measured 9.1 millimeters, which had been within the manufacturer's specifications.

[76] For the rear driver's side drum assembly, DiMartino said the lining on that brake shoe had measured 1.5 millimeters, which had been within manufacturer's specifications. Furthermore, he said the discard value of a shoe for the rear brake assembly is 0.79 millimeters, and whether it had been bonded or riveted would determine where the measurement is taken. As for the rear passenger-side drum assembly, he said it had measured it 1.5 millimeters and had been within the manufacturer's specifications. He also explained that with respect to the manufacturer's specifications that those specifications are minimal requirements.

[77] In addition, DiMartino said he inspected the calipers to make sure that they would return all the way forward or all the way pushed back in. He then explained that a caliper is a piston within a unit that is hydraulically pushing against the pads to make the rotor stop. He also said that if the caliper seizes then it would keep pushing out and not return. As for the calipers on the defendant's vehicle, he said the two front calipers and both front pads had returned back to where they were, which would indicate that they had not seized.

[78] Furthermore, for the rear brakes, DiMartino said the wheel cylinders, which work the brake shoes and are like the front calipers, had also passed and returned to normal, which indicated to DiMartino that they had not seized. He also said the brake fluid or hydraulic fluid had not been leaking. He further explained that if the brake fluid had been leaking then there would be a lesser brake function, and that if the linings become wet with brake fluid then this would also reduce the friction within the unit. He also said that he did not notice any fluid and that it had been dry.

[79] However, DiMartino did mention that he had physically grabbed the front driver's side flex line, which he said is a braided line covered in rubber that connects the caliper to the steel line of the vehicle, which creates some movement and allows for steering of the vehicle. He also said that this rubber line would constantly move with the tire. Furthermore, he said that when he grabbed that particular flex line to inspect, he had noticed that it had been thicker than all the other flex lines, and that soon as he had grabbed it, the line had fallen right off because of the corrosion. Moreover, he said that he could not opine whether the operation of the vehicle or braking would be affected by what he had observed with the corroded flex line that fell right off after he had yanked on it, but did comment that there had been no leak prior to him touching the flex line. He further explained that the flex line would carry or allow brake or hydraulic fluid to go from the steel line from a fixed portion of the vehicle to the moving caliper side of the brake assembly and that each flex line is associated with a specific wheel or specific brake if each wheel has independent suspension, which had been the case with the defendant's vehicle.

[80] DiMartino also said that although there had been no leak, there had been a lot of swelling of the rubber line itself, so he knew that there had been corrosion underneath that rubber. Moreover, he said that the swelling would not prevent the hydraulic fluid from reaching the brake itself, since the swelling is not inwards but outwards from the fluid.

[81] In addition, DiMartino said that when somebody had installed new brake lines from the front to the rear of the vehicle, the brake lines had not been properly secured to the vehicle, since there had been no clips or tie-downs used. However, he also said that since he could not actually drive the vehicle, he could not determine whether the brake lines were installed correctly, nor could he determine whether there had been air in the brake lines.

[82] DiMartino also said all the rocker panels had been very corroded.

[83] Furthermore, DiMartino said he inspected the power steering and determined that there had been fluid in the reservoir. He also said he had assumed that the power steering pump had been working, since he had not been able to start the vehicle. He also said he had inspected the ball joints and had noticed that both of them were nice and tight, which meant they had passed his inspection. Moreover, he said the tie rods had been nice and tight and that they had also passed. As for the shocks and springs, he said that he did not see any obvious leaks or breakage, so they also had passed his inspection. Furthermore, in respect to the steering, he said he did not see anything that gave him any concern and that it had passed according to manufacturer's specifications.

[84] In addition, DiMartino said he had inspected the frame and the body of the vehicle, which he said had been a unibody design. He also said he had noted that the bumpers had been almost completely rotted off due to corrosion. Furthermore, he said the floor had corrosion on it and is pretty sure that at some point there would be holes going right through the floor. Also, when he inspected the sub-frame, which actually holds the motor and transmission in, he said he had noticed the bolts, which have huge washers on them and which hold the entire unit up, had been rotted right off. Furthermore, although there had been a lot of corrosion on the defendant's vehicle he opined that the vehicle could still be driven and that for the items he had inspected on the vehicle he could not find that any of those items would have prevented the car from being operated or driven.

[85] Moreover, DiMartino confirmed that the brake lines are the pipes that carry brake fluid. He also said that brake fluid travels from the master cylinder to the brake lines under pressure, which activates the piston in the calipers and wheel cylinders. Furthermore, he confirmed that in respect to the calipers and wheel cylinders, there is a piston that pushes the brake pads or brake shoes against the surface of the rotor or drum, which slows down and stops the vehicle.

[86] Furthermore, DiMartino said that all the brake lines he had inspected were steel lines. In addition, he said that everything that leaves the master cylinder are steel lines, but once they reach the point where they cannot be steel anymore because the wheels have to pivot or function through the suspension, the line then becomes a flex line that is a braided rubber hose. He also explained that the rubber hose is a braided steel line, which goes to the calipers or the wheel cylinders.

[87] DiMartino also said depending on the amount of corrosion there is in a brake line, especially when it is perforated, then the line will lose pressure. He also said he had noticed that the rear brake lines had been replaced, but the front ones had not been and were somewhat corroded, but had no perforations.

[88] Furthermore, DiMartino said the rear brakes lines had not been secured to the body of the vehicle properly. He also said that if the brake lines had rubbed up against other material and parts of the vehicle, then this rubbing could cause perforations in the brake lines. He also acknowledged that the maintenance of these brake lines would be critical to a vehicle.

[89] In addition, DiMartino said that when a brake pedal is pressed on, the master cylinder, which is a low piston, then pushes on the fluid itself and the front brake lines will receive the maximum pressure. In addition, he said the rear brakes would have a proportion valve, which actually cuts off about 70 percent, depending on the manufacturer. He also said that it the rear brakes receive more pressure than the front brakes, a driver would lose control of the vehicle.

[90] Furthermore, DiMartino said that once the brake pedal is pressed in the car by the driver, it operates the master cylinder, and in the master cylinder there are pistons that work and then sends the fluid to the brake lines. In addition, he said that the master cylinder had passed physical inspection, but he reiterated that he did not actually get in the vehicle and press the brake pedal to see if the brakes were functioning.

[91] In addition, DiMartino said that at no point in time did he enter inside the vehicle, nor did he drive the vehicle, nor did he inspect the brake pedal inside the car, nor did he see whether the brake pedal had been working properly or inspect for its free movement inside the vehicle.

[92] Furthermore, DiMartino explained that if there had been a problem inside with the brake pedal, concerning its movement, and it had not been free or it had been stuck, then the master cylinder would not operate.

[93] In addition, DiMartino identified the flex line in the third photograph (Ex. 12) and said that the flex line would not have passed the Ministry of Transportation safety requirements. He also said the expanded material visible on the flex brake line shown in the photograph is corrosion. Moreover, he said that corrosion had also been visible on the part of the brake line where it attaches to the nipple.

[94] DiMartino also identified in two additional photographs that the white lines in the photograph are the brake lines that go from the proportion valve all the way to the rear of the vehicle and that their condition had been good and that it had been either salt or dirt that is visible on those lines and not corrosion.

[95] Furthermore, DiMartino did identify that on two more photographs of the actual sub-frame that hold the vehicle's motor and transmission intact, that those bolts should have had a big washer and rubber bushing, which holds the sub-frame intact to the vehicle, and that if the washer is lost then the bolt would not hold and the sub-frame would fall out. He then confirmed that the steel washers that were supposed to be there were not there and had corroded right off.

[96] In addition, DiMartino said that as he could not enter the defendant's vehicle, he could only inspect the components of the steering on the exterior of the vehicle, in the engine compartment, and from underneath the vehicle. He also said that he could not advise on the condition of the steering wheel itself.

[97] Furthermore, because of the amount of the corrosion that had been visible on the defendant's vehicle, DiMartino said the vehicle would not have been safe to operate. He also explained that anything could happen when a vehicle is so corroded like the defendant's vehicle, including parts of the vehicle falling off, such as suspension components falling off, that the sub-frame could drop out, and that the driver could lose control of the vehicle because the sub-frame not only holds the engine and transmission, it also holds the steering components to the front end. In addition, he said that if there had been large holes in a vehicle caused by corrosion, then exhaust fumes and carbon dioxide could enter the vehicle and make the driver or other persons inside the vehicle nauseous, and could cause them to pass out.

[98] DiMartino also said the rubber component that is part of the flex line that is used to transfer hydraulic or brake fluid from the steel brake line to the caliper or wheel cylinder of the vehicle permits flexibility to allow the steering or the suspension of the vehicle to operate.

[99] Moreover, DiMartino said that when he had touched the flex line and it had fallen off, he said that it had not been leaking at the time. In addition, he said there had been no fluid leaking from the flex line until he had actually touched the flex line, which had been when he had grabbed it and gave it a hard yank.

[100] In addition, DiMartino said that if the brake line is not properly attached, then in some cases where the brake pedal is pressed hard, then it could actually pop off. However, for the defendant's vehicle, he said that this had not happened. Also, he said that when he inspects the flex brake lines, he physically grabs them and gives them a good shake, and if they stay intact, they are good and if they fall off in his hand, then they obviously fail.

[101] Furthermore, DiMartino said the shoe area of the braking system had not been rusted.

[102] DiMartino also said that he could not say for 100 percent that the brakes were working properly because he had never driven the defendant's vehicle. He also said he had never recorded in his report that the brakes had been working properly and that all he had recorded had been the measurements he had taken.

[103] In addition, DiMartino said the defendant's vehicle would have not met the safety standard as required by the Ministry of Transport, since it had been in very bad shape.

[104] Moreover, DiMartino said he did not discuss his report with any police officer, including Cst. Pupo.

[105] DiMartino also said that problems with the brake pedal and master cylinder could suddenly change, and a master cylinder could fail all of a sudden, which could be caused by the lack of service or lack of fluid, since everything has a wear and tear time. However, he said he did not notice a lack of fluid and when he had inspected the master cylinder, it had been full. He also said he had observed that the brake pedal actually had the rubber pad on it, but that was all he had been able to inspect.

[106] Furthermore, DiMartino explained that when he had given the flex line a good yank, it had come off with no problem.

[107] In addition, in the third photograph of the flex line, DiMartino said that the corrosion that had been visible on the outside of the flex line would not have prevented fluid from actually reaching the front brake itself. He further said the corrosion on the flex line had started from the outside and had been working its way in, but the corrosion would have no impact on the functioning of the flex line itself.

[108] Moreover, DiMartino said that rust associated safety problems to a vehicle can sometimes be noticeable by a layperson, but many times the problem is hidden underneath the vehicle. In addition, he said that even some of the moldings on the vehicle are plastic, but that the metal underneath it could be corroded. He also said that the corrosion had been so bad that someone could have put their fist right through the rocker panels.

[109] DiMartino also said that despite the potential risks with the rust occurring on the vehicle, and that the vehicle had been in such bad shape in regards to the amount of rust, he did say that the bottom had not fallen out. However, he could not say if carbon monoxide had been entering the vehicle.

(3) Constable Pupo (the accident reconstructionist who had been qualified in a voir dire to testify as an expert in the area of collision investigation and reconstruction)

[110] Cst. Bruno Pupo testified he is currently employed by Peel Regional Police and has been employed with them for approximately 16 years. He also said he had transferred to the Major Collision Bureau in the Fall of 2008 and has served in that unit since that time. Furthermore, after a voir dire had been held to determine whether Cst. Pupo should be qualified as expert witness, it was determined, based on his training, education, and experience, that Cst. Pupo is qualified to testify as an expert witness in the area of motor vehicle collision and accident reconstruction.

[111] Furthermore, Cst. Pupo said his duties in the Major Collision Bureau included responding to serious collisions that occur within the region, which includes both Brampton and Mississauga. In addition, he said that his unit is usually dispatched to attend and investigate collisions that involve life threatening injuries or fatalities. He also said that their main role is to take charge of the investigation and gather evidence at the scene, and then interpret the evidence as best as they can to determine what had occurred during the collision and to lay appropriate charges where necessary. Moreover, he said he has attended or been involved in the investigation of approximately 250 collisions and has personally prepared six accident reconstruction reports. He also said that he is presently the officer in charge in the ongoing investigation of 12 fatalities.

[112] Moreover, in the Fatality Motor Vehicle Collision Report that he authored and dated on August 26, 2012 (Ex. 11), which is evidence that is only admitted for weight, Cst. Pupo opined that the defendant had not operated his motor vehicle with the appropriate level of care and attention for the weather and road collisions at the time of the collision, which had consisted of wet roads caused by heavy rains, poor visibility, and water pooling on the roadway.

[113] Furthermore, Cst. Pupo had said that the evidence of the weather and road conditions in his report had been based on his own personal observations of the roadway approximately 15 minutes before the accident would occur, when he himself had driven his own vehicle westbound on Bovaird Drive, which is in the opposite direction of where the location of the accident would occur on eastbound Bovaird Drive, just west of Dixie Road. Moreover, he said that when he had been opposite the location of where the accident would occur it had been raining severely, the visibility was poor, and the roads were pooling with water. However, he did not have an explanation as to why he had not identified or attributed the source of the severe rainfall, poor visibility, and water pooling on Bovaird Drive minutes before the accident would occur, as his own personal observations in the Fatality Motor Vehicle Collision Report.

[114] In addition, Cst. Pupo explained that since he resides in the municipality of Vaughan and since he cannot afford taking Highway 407 every day, he drives to work using a route consisting of Rutherford Road in the Region of Vaughan, which upon entering the Region of Peel becomes Bovaird Drive. Moreover, he said that on the day of the accident involving the defendant, he had personally driven on Bovaird Drive at 5:30 a.m. that morning on his way to work. He further said he had driven on Bovaird Drive towards Highway 410, where he then went southbound on Highway 410, and then got off on Derry Road, and then drove to his office located at 180 Derry Road. He also said he had to reduce his speed that morning because it had been raining heavily, the visibility had been poor, and there had been pooling of water on Bovaird Drive. In addition, he said he did not drive the same path that the defendant had driven that morning, but had driven on Bovaird Drive in the opposite direction.

[115] Cst. Pupo also said that as soon as he had walked into their unit's office at 180 Derry Road in Mississauga, the time had been seven o'clock in the morning and he had already changed into uniform. He further said that he had received a phone call in the office from communications indicating that they had to attend a motor vehicle collision on Bovaird Drive. He said he then proceeded to attend the location on Bovaird Drive just west of Dixie Road in the City of Brampton. In addition, he said he had arrived at the location of the collision at 7:33 a.m. on Thursday, July 26, 2012.

[116] Furthermore, Cst. Pupo said he had been quickly briefed by the Sergeant on the scene and had been advised that the pedestrian had been transferred to a local hospital and that the driver involved had been taken to 21 Division. He then said he had noticed a vehicle that had been on the grass in an area south of Bovaird Drive. He also described the vehicle as a four-door 1997 Pontiac Bonneville vehicle. He said the area where the collision had occurred had been off the roadway on the southside of Bovaird Drive, west of Dixie Road.

[117] In addition, Cst. Pupo said Bovaird Drive is a six-lane road and that there is a physical median that separates the three eastbound lanes from the three westbound lanes. He also said the roadway had been a very well-worn asphalt surface. Moreover, he said the posted speed limit for that location is 70 kilometers per hour.

[118] Cst. Pupo also said the vehicle had been on the boulevard facing in the eastbound direction. In addition, he said there had been four distinct track marks or tire marks leading from the vehicle and that went towards the roadway. He said he had identified those tire marks with coloured cones he and another officer had placed on the ground. He also said he did have the opportunity to examine the tire marks on the roadway.

[119] Moreover, Cst. Pupo said it had not been raining at the time. However, he said the roads were wet, but that it had stopped raining. He also said it had been overcast. Furthermore, he said he did not observe any pooling of water, but that the roads had been just wet from the rain, but there had been no visible pooling of water whatsoever at the time. In addition, Cst. Pupo said he had no difficulty navigating or maneuvering his police vehicle on the wet roads.

[120] Cst. Pupo also said that in the area where the vehicle had been sitting, there is a boulevard, a sidewalk, a grassy median area, and a sound barrier wall that protects the residential area from the sound of the roadway. Furthermore, he said the location of the accident had been in a residential area where it is all residential on both the north and southside of Bovaird Drive. Moreover, he said the cement sound barrier wall had been just behind the vehicle. In addition, he said he had observed a small pool of blood within the bushes.

[121] Furthermore, Cst. Pupo said he had observed that the vehicle had been damaged only on one side, which had been the driver's side of the vehicle. He also said the damage had been in the area of the B-pillar towards the rear door and that the window in the door had been shattered. In addition, on the actual B-pillar of the car he said there had been some fatty tissue that had been embedded inside the frame of the glass of the window. Furthermore, he said the glass window had been shattered by the impact and glass had been spread throughout the seats inside the vehicle. He also said there had been heavy mud and grass on the tires and that one side of the tires had been damaged. In particular, he said the rim had been damaged by what appeared to be a big impact. Moreover, he said he had noticed there had been an indent in the actual cement curb itself.

[122] Cst. Pupo also said that one of their investigative tools is to photograph and image the immediate collision area. He further said they have forensic identification officers that come out to the scene who usually mark up the tire marks. However, in this case, he said he had been the one who had marked up the tire marks, since some of the evidence unfortunately is short-lived and that tire marks could disappear because of environmental conditions. As such, he said that immediately upon his arrival, coloured cones had been placed by him on the surface to mark up the location of the tire marks. And, in this case he said the tire marks had been consistent and had gone in the direction of the vehicle.

[123] In addition, Cst. Pupo said that on his arrival the tire marks had been visible from the roadway onto the curb and immediate grass, and then they had crossed over onto the pedestrian sidewalk and continued onto the grass boulevard, and finally they ended up at the parked vehicle. Moreover, he said there had been a yellow tarp placed at the location of the final resting position of the pedestrian that had been struck by the vehicle, which is approximately 15 feet behind the vehicle. He also said he did not personally see the victim, although he had observed the presence of blood at the spot where the individual had been picked up by emergency personnel.

[124] Moreover, in identifying the contents of a photograph marked as #65 (Ex. 12), Pupo said the photograph had been of Bovaird Drive that shows three eastbound lanes. He also said there is a 70 kilometers per hour maximum speed limit sign that is visible on one of the pillars on the right-hand side of the photograph. In addition, he said there are visible in the photograph four different colours of cones that consist of white, green, yellow and blue cones, which had been placed by him on the roadway and that run from the center lane of the three eastbound lanes and heads in a southerly direction on the road, then onto the curb, then across the sidewalk, and then stopping on the grass area. He also said that the green cones represented the front passenger-side tire of the vehicle; the white cones represented the front driver's side tire of the vehicle; the yellow cones represented the rear passenger-side tire of the vehicle; and the blue cones represented the right driver's side tire of the vehicle.

[125] In addition, Pupo said that the tire marks are from three or four tires and that once they arrive near the area of the sidewalk, the tire marks cross over one another, which indicates at that point the vehicle had entered into a spin. In addition, he said the tire marks indicate that the vehicle had been spinning clockwise and that the tire marks cross over each other. Also, he said the green and the white cones follow the cross over and stop at the end of the resting spot of the vehicle and match up to the two front tires. In addition, he said the blue and the yellow cones match up to the rear tires of the vehicle.

[126] In respect to the photograph marked as #71 (Ex. 12), Cst. Pupo said the photograph shows the four tire marks of the defendant's vehicle. In addition, he said there is visible on the curb a tread mark with striations in the tread mark. He also said the term "striations" is used to describe the marks in the actual tire itself, and in this case it shows that the tires had been rotating and while they were rotating, they were also sliding. As such, he said the striations in the tire marks indicate the fight that the tires had been up against the friction of the road, and that as they were rotating, they were being pushed, which indicates to Pupo that as the tire had travelled over that road surface, the tire had not been spinning in the forward motion, but had been sliding sideways, and as such, the striation marks clearly indicate that the vehicle had mounted the curb from the roadway and had continued across the sidewalk in a sliding motion. And, then when the vehicle arrived in the area of the sidewalk, he said it had spun. Moreover, he said that when the vehicle had mounted the curb it had not been facing eastbound in the direction that it should have been going on Bovaird Drive, which he said is why the tire marks indicate that the tires were spinning and sliding across the surface.

[127] In addition, Pupo said the defendant's vehicle would have already started to spin on the roadway, and when the vehicle had changed its position from the center lane it had started spinning in a clockward motion, and as the vehicle approached the curb it had mounted the curb sideways.

[128] Moreover, Pupo said the photograph labelled #71 (Ex. 12) also indicates that the gap between the actual tire marks is not consistent with the wheel track of the vehicle. Moreover, he said the wheel track is measured from the center of the vehicle tires. In addition, he said those tire marks suggest that the tire marks are well out of the wheel track for that vehicle, which would indicate that the tire tracks had been made by the front and rear tires as the vehicle had been sliding and mounting the curb sideways.

[129] Also, in respect to the maximum speed limit of 70 k.p.h. that is given to the roadway, Cst. Pupo said that particular speed would be the maximum speed for a vehicle travelling under normal conditions. He also said normal conditions for that maximum speed would be a bright sunny day with the roads being dry. However, he said that if the conditions deteriorate in any way or form, then the speed of the vehicle would have to be adjusted accordingly by the driver of that vehicle using that roadway.

[130] Furthermore, Pupo said that when he had arrived at the scene he had started from the last position of rest for the defendant's vehicle and then worked his way backwards. He also said he had noticed the vehicle in its final rest position and then noticed the damage on the vehicle, which included a damaged window. Then he said he had walked over to the final resting position of where the pedestrian's body had been laying on the ground. He also said he had noticed the presence of blood, that the bushes had been turned over, and that the trees and shrubs had been damaged. Then he said he followed the actual tire marks back towards the roadway. In addition, he said that once the tire marks had been identified and located, then he slowly placed the coloured cones on the path and tried to match up the tire marks to the actual tires on the car. Then he said he took measurements.

[131] In addition, Cst. Pupo said he believes the longest tire mark had been approximately 64 metres in length. However, he said that he could not determine the exact area of impact, but had determined that it had been on the sidewalk, so he had picked the center area of the sidewalk as the area of impact, in order to measure to where the blood had been. As a result, he said the pedestrian had been thrown approximately 13 metres from the area of impact.

[132] Moreover, Pupo said an attempt had been made to download data from the event data recorder from the defendant's vehicle to determine its speed before the impact between the vehicle and the pedestrian, but because the vehicle had been a 1997 model year vehicle and because not all manufacturers at that time had reliable data recorder systems, he said there had been no data picked up by the event data recorder.

[133] In addition, Pupo said there had been no witnesses that were found that they could speak to about the accident, though he did obtain information from the first police officer who had arrived at the scene of the accident.

[134] Pupo also said that in order to capture the evidence that is at the scene with an exact measurement they use a Total Station instrument, which shows the actual location of each instrument, since it operates off its GPS. Furthermore, he said that at a later date they are able to take that information and put it on a paper map. Then they can obtain any type of measurement that they would require with the evidence that is captured on that instrument. He also said a map had then been created from the measurements that had been obtained by the Total Station instrument (Ex. 13), which is very accurate and can provide measurements to nearly the actual inch. In addition, he said the map produced would show the actual roadway lanes, the actual space, and the final resting position of the car. In addition, he said that Cst. Wang did the diagram and the Total Station mapping.

[135] Furthermore, Cst. Pupo said he had done a quick mechanical inspection of the defendant's vehicle to see if the tires had been bald.

[136] In addition, Pupo said that another procedure they commonly perform is to measure the coefficient of friction for the roadway, which he said had been done by another police officer. He also said that the coefficient of friction is usually gathered immediately on arrival so that the measurement can be obtained as close as possible to the timeframe of the accident because road conditions will constantly change. He then explained that every road surface, depending on the conditions, would have a certain coefficient of friction. He also said the term "friction" is used to describe two objects moving against each other or forced against each other. He also said there are two types of friction they are concerned with, namely static friction and kinetic frictional force. He further explained that static friction would be the force that is required for an object to start moving across the surface of another while kinetic energy force is the force that keeps that object moving. In addition, he said that normally with respect to static friction it would take more force to get something initially moving than the kinetic energy or force that it would take to keep an object moving that is already in motion. In addition, he said the movement of objects across each other results in this coefficient of friction, which simply refers to the stickiness of the roadway. For the purposes of the present accident, he said the issue would concern the tires of the defendant's vehicle on the roadway. Moreover, he said the coefficient of friction is a combination of force and weight and it is a number that calculates the stickiness of the road. Furthermore, he said that if the road is slippery then there is less friction and the coefficient of friction would be lower, while for a road that is very rough then the coefficient of friction would be higher.

[137] Pupo also said that in order to obtain the coefficient of friction, a tire that is weighted and which also has a fish scale is used to perform the test. He further explained that a police officer will place the weighted tire in the area of the skid marks and manually drag the special tire across that surface, which then records the force that is required to drag that weighted tire across the surface. Then he said the number obtained is place in the formula to calculate the coefficient of friction, which he said is equal to the force that it takes divided by the weight. He said this test is performed ten times to obtain an average. He then reiterated that if the road surface is very slippery then the coefficient of friction would be a lower number and if the coefficient of friction is a higher number then the road surface is more of a sticky surface.

[138] Furthermore, Cst. Pupo explained that determining the stickiness of the roadway is also used for calculating the speed of a vehicle based on tire marks. He then explained that where the driver of a vehicle slams on the brakes, skids, and then stops in a straight skid, then the longest skid mark is measured and compared with the stickiness of the road measurement, which is the coefficient of friction, and then the speed of the vehicle can be determined using a formula. However, he said that the speed would only be an estimate of what that vehicle had been travelling at. In addition, he said the coefficient of friction is a very important value for the equations used to determine the speed of a vehicle based on the skid marks produced by the tires on the road surface. However, he said that if there is something between the road surface and the tires, such as water, snow, or ice, then the road surface is going to be much more slippery. In other words, he said that if the road were wet, a tire would then have a lot less grip on the road than when the road is dry. He then explained that in car races such as in the Indy races, the tires used on those race cars are slick, instead of the tires which have treads, because they race on perfect and dry conditions and they want the full tire surface to be in contact with the road. In other words, he said that tires with treads would actually produce less contact with the road. However, he said that manufacturers of tires nowadays would make grooves in the tread, so that anything that comes between the tire and the actual surface would be displaced to the sides. He further explained that there are tires that have treads specifically for water, which are deep treads, so that when the tire makes contact with the road surface, the water is squished out between those treads so the tire would have contact with the road surface.

[139] Accordingly, Pupo said that when there is less grip for the tire on a road surface, then a motorist will have to adjust the speed of their vehicle because when there is ice or rain between the tire and the road surface, the motorist will have to slow down a bit, so that there would be more traction to avoid that slipperiness, since the tires would slide more at a faster speed because of there being less friction between the tire and the road surface. In other words, he explained that the faster a vehicle is moving on a slipperier surface, then the less grip the tire would maintain on the road surface.

[140] Unfortunately, Cst. Pupo said the speed of the defendant's vehicle just before it lost control could not be calculated or determined. He said that first, because no data could be downloaded from the data event recorder and second, because the actual tire or track marks had gone over various surfaces and the vehicle had been sliding sideways, so it had not been a case where the tire marks had been produced from just applying the brakes to produce a straight skid. For the latter situation, he said no attempt had been even made to calculate the speed of the vehicle based on the tire or track marks.

[141] On the other hand, based on the investigative steps, the placement of the coloured cones to track the location of the four tires, and the Total Station mapping, Pupo said the path of the defendant's vehicle could be determined. He then said the path of the defendant's vehicle had begun in the center lane of the eastbound lanes, and then aided by steering input, the vehicle had gone into a spin and then crossed over the curb lane, and then mounted the curb, and then crossed over the grass median as well as the pedestrian walkway, and then continued onto the grass median towards the sound barrier wall where it came to a rest position. He also said the defendant's vehicle had spun around twice before it came to a rest position. In addition, he said that if there had been either brake input or steering input then the vehicle could start to spin.

[142] Moreover, Pupo said that the longest tire mark had been 64 meters in length and that the defendant's vehicle would have spun a couple of times during the 64 metres that it would have at least travelled.

[143] Furthermore, Cst. Pupo said that tire marks could be made by a vehicle braking, as well as when the vehicle is slide slipping or sliding sideways, such as evidenced by the striation marks left by a tire that is trying to fight to go forward, but that is also being forced to move sideways at the same time.

[144] In addition, Pupo said that he had driven past that roadway after 5:30 in the morning on July 26, 2012, and that it had been raining and that he had to personally reduce his speed. Therefore, he said that in respect to the present case, the posted 70 k.p.h. speed limit would have not have been a comfortable speed to be traveling at for that given road condition, so that a decline in speed would have definitely been appropriate in this case. Furthermore, because of these road conditions, he felt that the defendant would not have been able to keep his vehicle on the roadway when it started sliding off the roadway and that it had been sliding off the roadway at a speed that was high enough to go over the curb, since a vehicle sliding across the roadway would normally be stopped by the curb. However, he opined that in the defendant's case, when the defendant's vehicle had been sliding across the roadway its momentum had been fast enough so that the curb did not stop the vehicle, but had mounted the curb and then subsequently continued over grass and mud, the walkway, and then grass again for approximately 64 metres. As such, he said that this would not have been consistent with a vehicle travelling at low speeds. Moreover, he said the pedestrian had been jogging, walking, or running across the pedestrian designated pathway for pedestrians and that the vehicle had crossed that pathway, struck the pedestrian, and had caused substantial injuries to the pedestrian that eventually resulted in the pedestrian succumbing to his injuries.

[145] Pupo also said he did not measure the height of the curb, but believes it had been a standard curb, which he estimates to be 4 or 5 inches in height. In addition, he said the distance from the center of the sidewalk to the final resting position of the pedestrian had been measured to be 13 meters. Accordingly, because of this 13-meter distance and because of the damage to the rear doorway of the defendant's vehicle, which had been dented pretty well, he said the pedestrian would have had to have been hit by the defendant's vehicle with significant force. He also said that because it had been metal against flesh and the doorway had been substantially dented, and because of where the pedestrian's body had been thrown from the sidewalk, then it would have to mean that the speed of the defendant's vehicle would not have been at a low value and that it could not have been a low value speed impact, which he surmised would have to be under 50 kilometers per hour. Furthermore, in regards to the defendant's vehicle, he estimated that its speed would have to have been over 50 kilometers per hour at the critical time.

[146] Moreover, when asked if the number of rotations made by the defendant's vehicle would have been a factor, Pupo said that unfortunately he did not do a spin analysis calculation at the scene, which measures the average of the angles of the vehicle spinning that would be determined from a mathematical formula.

[147] In addition, for the road conditions of Bovaird Drive, Pupo said that when he had first arrived at the scene he noted that it had not been a construction area and that the road had been a heavily-used paved road surface, but that there had been no major potholes, cracks, or major obstructions in the area that he had observed.

[148] Pupo also reiterated that he lives in Vaughan and that he travels on Bovaird Drive constantly in going home and going to work, and that on the day of the accident he had driven across Rutherford Road and then across Bovaird Drive and would have crossed by the area of the accident probably around 5:30 in the morning, which he bases on his start time being at 7:00 a.m. and from the amount of time it takes for him to get in and get ready for work and from his usual time of five to 10 minutes that he spends in the gym before starting his shift.

[149] Furthermore, in the Fatal Motor Vehicle Collision Report that he authored, Pupo said his findings that there had been the heavy pooling of water from a heavy rainfall and the slippery conditions on Bovaird Drive had been based on his own experience on Bovaird Drive that morning and also from the printout from the Environment Canada hourly data report for July 26, 2012 (Ex. 14), which he had obtained prior to forming his opinion about the defendant's driving conduct. Furthermore, he said the Environment Canada report is from the weather station located at Pearson International Airport and it shows the times in hours on the far left, the temperature, visibility, wind speed, whether it had been raining, and what the conditions were at the time.

[150] Moreover, Pupo reasoned that it had been the defendant's driving conduct that had caused the defendant's vehicle to mount the curb and subsequently strike the pedestrian in the pedestrian walkway. In addition, he opined that with a posted speed limit of 70 kilometers for that roadway and for the conditions of the roadway at the critical time, the speed of the defendant's vehicle should have been reduced. Moreover, he said that it had been obvious that a vehicle having to travel across several surfaces, as well as mounting a curb, had definitely not been done at a low speed. He also said he had used the 50 k.p.h. speed just as a guideline.

[151] Cst. Pupo also opined that someone hypothetically operating a motor vehicle at 50 to 60 kilometers per hour in those conditions that the defendant had been facing at 5:45 a.m. and at the time of the collision would be consistent with a vehicle sliding sideways for the entire length of travel as the defendant's vehicle had, and would have caused the same damage as had been visible on the defendant's vehicle.

[152] In addition, Pupo said that a speed well over 70 k.p.h. would have been an unsafe speed on that day for the conditions, whether the brakes had been applied or not.

[153] Pupo also said that although the defendant's vehicle had a data retrieval system in case of an accident happening, nothing in the system had been activated. He said the defendant's vehicle had been a 1997 Pontiac Bonneville and it did not activate, so it would not register anything. Moreover, he said that some of the companies had been a little bit late in getting on board. Accordingly, he said that although the download had worked properly there had been no data registered in the data retrieval system for determining what the speed of the defendant's vehicle had been just before the collision.

[154] Furthermore, Cst. Pupo said the defendant's vehicle had started to spin on the road and then continued onto the grass, which had been evidenced by the skid marks from the tires. In addition, Pupo said that another option that could be used to determine the speed of the defendant's vehicle had been to take a YAW measurement, which had not been done, and that is the reason that Pupo does not have an exact speed for the defendant's vehicle. He further said that the YAW measurement had not been done because it did not fall under the characteristics of YAW. He also confirmed that he did not rely on any measurements or calculations to determine the speed of the defendant's vehicle, but had made a guess of what the speed had been approximately.

[155] In addition, when asked about the visibility of any tire marks on the road surface in the photographs entered collectively as Ex. 12, Pupo explained that at the time the photographs had been taken and with the angle of the camera, it is virtually impossible to show skid marks being visible on the roadway. However, he said those coloured cones representing the location of the tire marks had been placed at the time when there had been tire marks visible on the roadway. Unfortunately, he said that because of the way the photographs had been taken, sometimes the photographs do not substantiate or reflect what had exactly been on the roadway. In addition, he said that sometimes a person has to virtually put their face right down to the road surface to see the tire marks. Moreover, he said the photographs are usually taken well after they mark up the tire marks. He also said that as the sun comes up, and depending on the environmental situation, sometimes the tire marks actually disappear because the actual oils from the roadway had been brought up as the tires go across, and sometimes they fade. And, although skid marks are not visible in the photographs, he said the coloured cones had been placed to identify a tire mark that had been there and visible at the time.

[156] Pupo also said that he had arrived at the scene of the accident at 7:33. Moreover, he said the photographs had been probably taken a half-hour after the coloured cones had been placed.

[157] Furthermore, Cst. Pupo said the tire marks show that the defendant's vehicle had travelled from the roadway and had gone over the curb and onto the sidewalk, as vehicles would not have been normally travelling on the sidewalk where a pedestrian walks.

[158] Moreover, Pupo said that they had been conducting their investigation on the roadway between 7:33 and 9:40. In addition, he said that he and Officer Wang had been at the scene and that they had placed the coloured cones to mark the location of the tire marks. And, at the time they had physically placed the coloured cones on the roadway he said the tire marks had been visible. However, since the photographs had been taken after they had placed the coloured cones on the roadway, he said unfortunately the photographs did not capture those tire marks. However, Pupo said that he does not know the time when those photographs had been actually taken by the identification officers.

[159] Cst. Pupo also said he had left the division at 7:24 and had then gone up Highway 410 to get to Bovaird Drive, and since it had not been that far away, he said he had arrived at 7:33.

[160] In addition, Pupo said it had not been raining when he had arrived at the scene of the accident. However, he said he did not make mention of that or the weather conditions in his notes. On the other hand, he did record in his notes that the surface of the roadway had been well-worn asphalt. In addition, he acknowledged that he did not mention in his notes that the road had been wet, nor did he mention there had been water pooling on the road.

[161] Furthermore, with respect to the mechanic's report prepared by Chris DiMartino, Cst. Pupo said that he did not read it because the report generally goes to the office in charge, who had been Officer Wright. In addition, Pupo said that from the time he had attended the scene of the accident on July 26, 2012 at 7:33 a.m. until August 6, 2012, when he had completed his Fatal Motor Vehicle Collision Report, he did not have any discussions with DiMartino. He then explained that he did not talk to DiMartino because the officer in charge of the case usually has the discussion with the mechanic. Moreover, Pupo said he did not even know who had been the mechanic that had done the inspection of the defendant's vehicle. In addition, he said that it is not his practice to speak with the mechanic and that all he wants to know in his investigations and in preparing the Fatal Motor Vehicle Collision Report is whether the vehicle had passed or failed the inspection. And if the vehicle failed then he would go into the details, but if the vehicle had passed, then it passed. He also said that he did not look into the mechanic's report, since it is the officer in charge who usually does. And, for his Fatal Motor Vehicle Collision Report, he said that he did not read the mechanic's report and had just compiled all the physical evidence that had been there and that there had been no concern in respect to the defendant's vehicle. In addition, when he mentioned in his report that no specific defect had been identified from the vehicle inspection that can explain the loss of control of the vehicle by the defendant, when the defendant began to brake and execute a lane change, he said that he had come this conclusion based on being told by the officer in charge that the defendant's vehicle had passed, and as such, Cst. Pupo did not have to talk to the mechanic.

[162] In addition, Cst. Pupo said accident reconstruction refers to the process of compiling the scene or sequences that occurred in a collision and in identifying the sequence of events that had occurred in that collision, which can be supported by photographs and statements from witnesses. In other words, he said that accident reconstruction would tell the story to someone, who had not been there, of what had happened and of what the sequence of events had been in that collision.

[163] Pupo also said that in preparing his report, he would also interpret who would be at fault and why they would be at fault, and that it would also be normal to make a conclusion on who would be at fault.

[164] Furthermore, when asked about where he had received the information he mentioned in his report that the rear brake lines had not been secured, that there had been rust in the floor, rust on the rear bumper, rust on the brake line, and rust on the rocker panels, since he had testified that he did not read DiMartino's mechanic's report, he reckoned that he had probably gotten that information for his report from Officer Wang.

[165] Moreover, Cst. Pupo said that in his report he had mentioned on page 6 under the heading, "Environment" that he had relied on the Environment Canada Hourly Data Report, which indicated there had been rain showers at six o'clock and on Cst. Abuja's and Cst. Meyer's notes that the roads had been wet.

[166] In addition, Cst. Pupo said he had relied on the National Research Council Canada sunrise/sunset calculator, which said sunrise had been at 5:00 a.m.

[167] Also, when Pupo had stated in his report that at the time of the collision the roads had been wet and that it had been raining heavily, he said this information had come from his own personal experience when he had driven on the same roadway on his way to work 15 minutes before the accident would occur and had passed the spot where the accident would have occurred in the eastbound lanes of Bovaird Drive. He then explained that because he lives in Vaughan, he comes across Rutherford, which changes to Bovaird, and that this had been well after 5:30 in the morning. In addition, he said he travels across Bovaird Drive to Highway 410 and then goes southbound on Highway 410, and then gets off at Derry Road, and then makes a right turn on Derry Road and continues over towards Hurontario Street, where his office is located at that special units building on Derry and Edwards.

[168] Moreover, Pupo said he had himself driven through the rain when he had been on Bovaird Drive in the same vicinity where the accident would occur.

[169] Furthermore, Pupo said that he did not write down in his notebook at the start of his shift of what the weather had been like or what the road conditions had been. In addition, he said that he could not explain why he did not explain in a footnote that it had been himself that had experienced the rain at 5:30 a.m. on Bovaird Drive by the location of where the accident would occur later.

[170] Also, in arriving at his conclusion that the defendant had committed the offence of careless driving, Cst. Pupo said that he had based his conclusion on three factors, namely, that it had been raining steady with heavy rains, visibility had been poor; and that some areas of the roadway had water pooling.

[171] In addition, Pupo said that in order to measure the YAW you have to measure the striations, angles of which the striations are visible, but because the defendant's vehicle had crossed over grass and mud, he said the striations were not visible enough and there had only been just a few visible on the curb and that they were not substantial enough, so that he could put the protractor there to measure the angles.

(4) Mukesh Sonnilal, the defendant

[172] Mukesh Sonnilal, the defendant, testified that he is 57 years old, a Canadian citizen, and a resident of Canada since 1989. He also said he is married and has two sons that are 34 and 29 years old. In addition, he said he resides in Brampton and has driven a motor vehicle for 38 years.

[173] Furthermore, on July 26, 2012, the defendant said he had been on his way to work at the Chrysler assembly plant in Brampton, Ontario, located at 2250 Williams Parkway when the accident had occurred. He also said he had gone to bed at 9:15 p.m. the night before and had woken up at 4:45 a.m. on July 26. He also said he did not take any medications on that day and only took a multivitamin that morning. Furthermore, he said he did not have any breakfast that morning.

[174] The defendant also said he had left his home that morning at 5:20 a.m. to go to work. He then described his route to work as travelling east on Earlsbridge, then south on McLaughlin, then east on Sandalwood to Highway 410, then travelling south on Highway 410, and then exiting Highway 410 at the first ramp for Bovaird Drive.

[175] In addition, after he took the exit for Bovaird Drive from Highway 410, the defendant said the traffic lights for Bovaird Drive had been red, so he had to come to a stop. After the light had turned green, he said he then turned left to go east on Bovaird Drive. He then said the next intersection with a traffic light had been just across the bridge that goes over Highway 410. In addition, he said the lights were red at that next intersection, so he had to stop again. Then when that traffic light turned green, he said he continued on to the next traffic light, which he said is located at Great Lakes Drive and Naismith Drive. He then explained that Naismith Drive is the road to his right and that Great Lakes Drive would be the road to his left.

[176] The defendant also said that Bovaird Drive has three lanes eastbound and three lanes westbound. Furthermore, at the intersection of Bovaird Drive and Great Lakes Drive/Naismith Drive, he said he had been in the center or middle lane going eastbound on Bovaird Drive. In addition, he said the traffic light at Great Lakes/Naismith Drive had been red, so he had stopped. Then after the traffic light had changed to green at that intersection, he said he continued eastbound on Bovaird Drive, heading towards Dixie Road.

[177] As for other cars on the road at that time, the defendant said that when he had stopped for the three traffic lights after he had exited Highway 410, he said that his vehicle had been the only vehicle on the road during those three stoppages.

[178] In addition, the defendant said that when he had been travelling towards Dixie Road he had observed the traffic light at Dixie Road turning amber. He also said that he normally drives in the right-hand lane, which is the curb lane, on his way to work every morning, since he has to exit at Bramalea and that he always like to be safe and does not like to have to trek through traffic. Also, at that moment in time, he said the weather had been clear and that it had not been raining. He also said there had been no obstructions in front of him.

[179] Furthermore, the defendant said that while he had been travelling in the middle lane he had turned on his indicator to signal a lane change to go into the curb lane. And, when he had put his indicator on to go into the right lane, he said he normally puts his foot on the brakes. Moreover, he said that when he did put his foot on the brakes, he did not know what had happened, but his car then just spun and went out of control, although he had his foot on his brakes. He then said his car spun and went into the pavement.

[180] In addition, the defendant said he did not spin on the road, but when he had punched the brakes, it did pick up the spin. Moreover, when asked about when his car actually began to spin, the defendant replied that his vehicle did not begin to spin until his vehicle had hit the sidewalk. And, when his vehicle was spinning, he testified that he had been holding onto the steering, that his foot was on the brake pedal, and that he had been trying to control his vehicle. However, he said he does not know what had happened.

[181] Then the defendant said the next thing that happened was that he had observed a gentleman and that all he could say had been, "God, no". And, he then he heard the impact and his car came to a stop immediately after. In addition, he said this had happened at 5:45 a.m.

[182] Moreover, after his car had come to a complete stop, the defendant said he had attempted to get out of his vehicle, but he could not open his driver's side door. He then said he exited his vehicle through the passenger-side door and then called 9-1-1. He then said he located the person and had noticed that the person had been still breathing and that his eyes had been open.

[183] In addition, the defendant said that an ambulance and the police had arrived shortly after he had called 9-1-1.

[184] Furthermore, the defendant said that when he had turned on his indicator to change lanes he had not been handling a cellphone, food, or a coffee, or anything like that. He also said that he had not been changing the music at that time as well. In addition, he said that when he had applied his brakes there had not been any foreign object or anything else that would have made him apply the brakes or that had caused his attention to purposely apply the brakes.

[185] The defendant also testified that he always tips on his brakes when he changes lanes and that the only reason for applying his brakes at that time had been for the purpose of changing lanes.

[186] Moreover, the defendant said that his vehicle's speed just before he applied his brakes had been "between 50 and 60 kilometers over". Moreover, because he had just left the traffic lights at Great Lakes Drive, he surmised there had been no way that he could have been driving anything more than that speed. He also said the speed limit in that area is 70 k.p.h.

[187] In addition, the defendant said that this particular route he had taken on July 26, 2012, had been the normal route that he takes everyday to go to work at the Chrysler assembly plant. He also said that he had been taking this route for five months, since he had first gotten the job with Chrysler at that assembly plant five months earlier. He further said that he had not taken any other route to get to work during those five months.

[188] Furthermore, the defendant said that his shift normally starts in the morning at 7:00 a.m. However, because he was the maintenance supervisor and because the assembly plant had been shut down, he said that he would go in to arrange and have everything organized for the other workers when they come in to start at seven o'clock. He said this had been the reason for leaving home and going to work early in the morning. He also said he gives himself enough time to get to work. He also said that on July 26 th , he had planned to reach his workplace between 6:00 and 6:15 a.m. for the shift that starts at 7:00 a.m. He also said that he had not been in a rush that day.

[189] Also, the defendant said that the road conditions had been good that morning and that he did not have any concerns with the road conditions or the weather conditions because the sun had been coming out and it had been bright. He also said he had no problems with his visibility that morning. In addition, he said the road had been dry, the weather had been clear, and there had been no rain whatsoever.

[190] The defendant also recalls that Officer Aujla had been the first police officer he saw that morning after the accident.

[191] Moreover, the defendant said that from the time he had first applied his brakes to the time his vehicle had come to rest, he said the only time his foot came off the brakes had been when his vehicle had come to a complete stop.

[192] Furthermore, the defendant said that he had no problems with braking when he had stopped for the traffic light for Bovaird Drive after he had exited Highway 410. He also said he had no problem with turning.

[193] In addition, the defendant said that when he had been travelling at 30 k.p.h. after he moved from the stopped position at the red lights that he had stopped for that morning at Great Lakes Drive, he said that he did not spin out, but then for no apparent reason when he had applied his brakes as he was moving from the center lane of Bovaird Drive to the curb lane, he had spun out of control.

[194] To reiterate, the defendant said the weather had been clear, there had been no rain whatsoever, and the roads had been dry.

[195] Furthermore, even though the defendant had testified that he recalls what had happened on July 26, 2012, because the events had happened to him, he did agree with the suggestion from the prosecution that what he had said on July 26, 2012, would be more accurate than what he would say today.

[196] Moreover, the defendant confirmed in his testimony that Cst. Furlotte had taken a statement from him on July 26, 2012, at 6:49 a.m. (see transcript of Mukesh Sonnilal's videotaped statement made on July 26, 2012, Ex. 15, p. 5). In addition, when asked at what time he was supposed to start work on that day, the defendant had informed Cst. Furlotte that he "was supposed to start at 6:00", but then added, "well, really 6:30 but I go in for 6:00 and get a plan and everything so". Then during his testimony in the trial, he said that his intention had been to get there "between 6:00 and 6:15".

[197] In addition, when asked by the prosecution why he had earlier testified in the trial that the shift started at 7:00 a.m. when he had told Cst. Furlotte on July 26, 2012, that the shift started at 6:30 a.m., the defendant in his reply to the prosecution's question had testified, "I told him the shift 6:30 but the shift doesn't start at 7:00 o'clock", and then elaborated by testifying, "Well really 6:30 but I go in for 6:00 and get a plan and everything to get - the shift actually starts at 7:00 o'clock. I was the maintenance supervisor. My start time and stop time is not driven by the clock."

[198] Then when it was suggested by the prosecution to the defendant that nowhere in the defendant's statement to Cst. Furlotte had the defendant ever said his shift started at 7:00 a.m., the defendant agreed with the suggestion. The defendant then subsequently testified, "It is seven o'clock when we are on shutdown. When we are running production, production starts 6:30; production starts 5:30. When they are running production you are supposed to be in one hour before. When they are not running production, when we are in shut down, we starts at seven o'clock. I normally there between 6:00 and 6:15 and have everything planned for the guys starting at 7:00 o'clock".

[199] Furthermore, the defendant agreed with the prosecution's suggestion that he travels the same route every single day, twice a day, for five months, to go from home to his workplace and to return home from his workplace.

[200] Moreover, after being shown his statement that the defendant had given to Cst. Furlotte on July 26, 2012, in which the defendant had stated, "I know the road was wet and I didn't believe it would have picked up that spin like that" (Ex. 15, p. 29), the defendant was then asked by the prosecution if he had been telling the truth on July 26, 2012, when he told Cst. Furlotte that the road had been wet or whether he was telling the truth today in his testimony in which he had testified that the road was dry. In response to the prosecution's question, the defendant testified, "I'm telling the truth today". Then subsequently, the defendant explained in his testimony, "Well I must have picked up that spin. They had water in the road in puddles, little pools. I might have picked up the spin on the water in the pool when I change a lane but the road condition was dry."

[201] Then it was put to the defendant by the prosecution that he was now changing his story by saying the roads were no longer clear and dry, but that there had been pools of water along Bovaird Drive, in which the defendant testified, "Like I say, again, when I enter Bovaird the road were dry. I continue driving on Bovaird. There - from the showers before there might have been puddles on the side of the road when I took - when I went on my brake to change lane I might have picked up a spin because of a puddle of water. I don't know."

[202] Moreover, when the defendant was reminded by the prosecution that he had testified earlier that the roads were clear and dry, but that on July 26 th he had told Cst. Furlotte that road had been wet, and that on July 26, 2012, his memory would have been better than it is today, more than a year later or approximately a year later, the defendant then testified that, "The road might have been wet."

[203] In addition when asked by the prosecution why had he testified earlier today that the roads were dry, the defendant then explained in his testimony, "Because the road was dry coming in from the 410 up to Bovaird. It was dry on that ramp coming down it was sun-dry."

[204] Furthermore, the defendant was then asked by the prosecution to review pages 30 and 31 of his statement to Cst. Furlotte, where Cst. Furlotte had asked the defendant, "Do you know, do you know the speed limit on Bovaird?", and in which the defendant had replied to Cst. Furlotte, "I think it's 80 in some areas. It's 70 in some areas". Then Cst. Furlotte said, "Okay. And you mentioned it was, it was wet?" and to which the defendant had responded to Cst. Furlotte, "It was raining or drizzling". Cst. Furlotte then asked the defendant, "It was drizzling?" The defendant then responded, "Yeah, it was drizzling this morning"? Then when the defendant was asked by the prosecution to explain the defendant's statement to Cst. Furlotte about it drizzling that morning, the defendant testified that, "It was drizzling when I left Earlsbridge".

[205] Then when asked by the prosecution why the defendant did not tell Cst. Furlotte on July 26 th that it had been drizzling when he had left Earlsbridge, the defendant testified that, "The officer asked me if the rain - if it was, if it was raining. I tell him yes, it was drizzling. He didn't ask me where it was drizzling. I - it was drizzling when I left Earlsbridge until I reached Kennedy Road on Sandalwood."

[206] Furthermore, the defendant was then directed by the prosecution to review the defendant's conversation with Cst. Furlotte about using his windshield wipers, in which Cst. Furlotte had asked the defendant on July 26 th , "Like drizzling enough where you needed your wipers on or ... ", and which the defendant had stated to Cst. Furlotte, "Yeah, I had (my] wipers [on] ..." "Yeah." "... intermittently on". Then the defendant was asked by the prosecution if the defendant's statement to Cst. Furlotte had meant that he had his wipers on more than once, in which the defendant testified, "Coming from Earlsbridge". Then subsequently, the defendant testified that, "It was on intermittent coming from Earlsbridge to Kennedy Road" and that he had stopped using his wipers at one point.

[207] In addition, the defendant then testified at the trial that it had been drizzling intermittently from Earlsbridge to Kennedy Road, but it had not been raining intermittently on Bovaird Drive. The defendant also testified, "It wasn't raining when I was driving on Bovaird."

[208] However, the defendant was then referred to p. 31 of his statement to Cst. Furlotte by the prosecution, in which the defendant had stated to Cst. Furlotte, "I didn't realize the road was wet though cause it was drizzling", and then asked by the prosecution whether he agreed that it had been raining on Bovaird on July 26, 2012, the defendant testified, "Yes. If this is my statement then it's correct". However, when the defendant was then asked by the prosecution why his testimony was changing so much, the defendant replied, "Because I know it was raining up until Kennedy Road. It was clear from Kennedy Road until Bovaird. When this accident happen it was not raining." Then the defendant testified, "I said again, if I said this then that must have been correct but I don't have any recollection of this. I know what was - when it was raining and where the rain stopped."

[209] Furthermore, when asked by the prosecution if it had been correct that the defendant had earlier testified to being the only car on the road when he had turned from Highway 410 onto Bovaird Drive, the defendant testified, "Yes, sir". After that response, the defendant was then asked by the prosecution to review his statement to Cst. Furlotte, at p. 32 of Ex. 15, concerning the vehicles around him, in which Cst. Furlotte had asked the defendant, "Um, the, the car that was in front of you, how far in front would you say it was?", to which the defendant had replied to Furlotte, "About three or four car lengths in front" and "It was ... way ahead of me". Then when asked by the prosecution if the defendant had stated to Cst. Furlotte that there had been another car on the road on the day of the accident, the defendant testified, "When I left Great Lakes light I was driving in the middle lane. While driving on the middle lane this car came zooming by me on the left-hand side on the extreme left; came in front of me. I was going down to Dixie Road. But he was so fast I was already changing my lane; didn't pay any attention to that car. And that is what I told the officer." In addition, the defendant was then asked by the prosecution if the defendant had told Cst. Furlotte that there had been a number of vehicles behind the defendant's car as well, to which the defendant testified, "Yes. When I look in my rear-view mirror after I saw - at the traffic light. The traffic light was at red. There were cars at the traffic light at that point in time. There was nothing behind me." The defendant then acknowledged and admitted to the prosecution that he did not testify about the presence of a car being in front of him earlier in his testimony at the trial.

4. APPLICABLE LAW

[210] The elements for the offence of "careless driving" are set out in s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8, and provides that a motorist is guilty of careless driving if they either drive a vehicle on a highway without due care and attention or without reasonable consideration for other persons using the highway. Furthermore, s. 130 sets out the type and range of penalties that could be imposed on the defendant if he were to be convicted of committing the offence of "careless driving", which includes a fine between $400 and $2,000, or for a term of imprisonment of not more than six months, or to both a fine and imprisonment, or the suspension of his driver's licence for a period of not more than two years:

Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years.

5. ISSUES

[211] The following issues have arisen for the determination of whether the Crown has proven beyond a reasonable doubt that the defendant had committed the offence of "careless driving":

(A) Has the Crown proven beyond a reasonable doubt the actus reus of the offence?

(1) Has the Crown proven beyond a reasonable doubt that the defendant had either driven a motor vehicle on a highway without due care and attention or had driven a motor vehicle on a highway without reasonable consideration for other persons using the highway?

(2) Was the cause of the defendant's vehicle suddenly losing control, spinning clockwise, and going over the curb caused by a mechanical defect in the defendant's vehicle, specifically the brakes on the defendant's vehicle being defective or not working properly?

(3) Has the defendant made out the defence of explanation or the defence of inevitable accident to rebut any inference of negligence?

(4) Is the defendant's testimony credible about the road surface of the eastbound lanes of Bovaird Drive being dry at the critical moment?

(5) Is the defendant's testimony credible about the defendant not being in a rush to get to work on the morning of July 26, 2012?

(6) Would the defendant's vehicle losing control, spinning, and going over the curb have been reasonably foreseeable in the circumstances?

(B) If the Crown has proven that the defendant committed the actus reus of the offence beyond a reasonable doubt, then has the defendant met his burden of proving on a balance of probabilities that he took all reasonable steps in the circumstances to drive with due care and attention or with reasonable consideration for other persons using the highway, or that he had been operating under a mistaken set of facts, if believed, would render his act innocent?

(1) Were there any factors or circumstances that would have affected the defendant's ability to drive with due care and attention or with reasonable consideration for other persons using the highway?

(2) Has the defendant proven on a balance of probabilities that his vehicle losing control, spinning, and going over the curb, had not resulted from his negligence or fault?

(3) In relying on the failure of the vehicle's brakes as the mechanical defect that precipitated the accident, could the defendant have been reasonably aware of any potential problem with the brakes or that the potential problem with the brakes would have been easily discovered or noticeable?

(4) In respect to the claim that the brakes on the defendant's vehicle had been faulty, had the defendant properly maintained his vehicle to ensure the vehicle had been in proper working order?

6. ANALYSIS

[212] The prosecution contends that it was the defendant's failure to drive at a reasonable and prudent speed for the weather and road conditions that had caused the defendant's vehicle to suddenly spin out of control, leave the roadway, and collide with a pedestrian on a sidewalk. However, the defendant submits there has been no evidence adduced by the prosecution that proves beyond a reasonable doubt that the defendant had been driving without due care and attention, or that he had been driving his vehicle at a speed that had been too fast for the road and weather conditions at the critical time, or that his driving had departed from that of an ordinary and prudent driver for the circumstances, or that he had disregarded the safety of others using the highway at the critical time.

[213] On the other hand, the prosecution submits that based on the circumstantial evidence that has been proven beyond a reasonable doubt, particularly evidence that the road had been wet at the critical time and that the defendant's vehicle could not have been travelling at a slow speed when it suddenly spun out of control, then the prosecution contends it has met its burden in proving that the defendant's driving had departed from the standard of care that a reasonable and prudent motorist would have exercised for the circumstances, and as such, has proven beyond a reasonable doubt that the defendant had driven without due care and attention or without reasonable consideration for other persons using the highway.

[214] In addition, the prosecution submits that the circumstantial evidence which infers that the defendant had not been driving at a slow speed, is based on the amount of damage that had been done to the defendant's vehicle when it had collided with the pedestrian, which includes the smashed out window and the large dent in the rear driver's side door where the pedestrian had come into contact with the defendant's vehicle; the severe injuries sustained by the pedestrian from being struck by the defendant's vehicle; the pedestrian being thrown 13 meters south of the sidewalk after being struck by the defendant's vehicle; and the defendant's vehicle rotating clockwise on the road and being able to jump the curb while the vehicle had been moving sideways. Moreover, the prosecution submits that there is no conclusive evidence that the brakes on the defendant's vehicle had been defective or not operating properly, or that the defendant's vehicle had not been operating properly from some other mechanical defect when the defendant's vehicle had spun out of control and jumped the curb.

[215] Furthermore, the prosecution contends that because the defendant had not provided a reasonable explanation for why the defendant's vehicle had lost control and went onto the sidewalk, to rebut the inference of negligence, then the only reasonable inference that can be made from the circumstantial evidence is that the defendant's vehicle had spun out of control and abruptly left the roadway because the defendant had been driving his vehicle faster than the weather and road conditions would warrant, or that the defendant had not been driving at the appropriate speed for the weather and road conditions at the critical time.

[216] In determining whether the prosecution has proven beyond a reasonable doubt that the defendant had committed the offence of careless driving, I will begin by reiterating that careless driving is a regulatory offence that has been classified as a strict liability offence.

[217] And, as this court as indicated in R. v. Cianchino, [2010] O.J. No. 3162 (QL) (O.C.J.), at para. 93, and in R. v. Hubbs, 2014 ONCJ 32, [2014] O.J. No. 381 (QL) (O.C.J.), at para. 49, the fault element for a strict liability offence is one of negligence, in which the prosecution does not have to prove any mens rea element in order for a conviction, but is only legally required to prove the defendant had committed the actus reus of the offence beyond a reasonable doubt. Therefore, as had been established by the Supreme Court of Canada in R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353, once the prosecution proves the defendant has committed the actus reus of the offence beyond a reasonable doubt, then in order for the defendant to be acquitted of the offence, the defendant must meet its burden of proving on a balance of probabilities that they had taken all reasonable steps for the circumstances to avoid the particular event, or that they had reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent.

[218] Furthermore, in R. v. Beauchamp, [1953] 4 D.L.R. 340, 16 C.R. 270, 106 C.C.C. 6, O.R. 422, the Court of Appeal for Ontario has formulated a test for determining whether an accused should be held liable for this particular form of negligent driving, which is, whether the prosecution has proven beyond a reasonable doubt that the accused, in light of the existing circumstances of which the accused was aware of or which a driver exercising ordinary care ought to have been aware of, had failed to use the care and attention, or give other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances, and that the conduct in question must be of the nature that breaches a duty to the public and deserving of punishment:

It is whether it is proved beyond reasonable doubt that the accused, in the light of existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances.

There is a further important element that must also be considered, namely, that the conduct must be of such a nature that it can be considered a breach of duty to the public and deserving of punishment.

[219] Moreover, Durno J. in R. v. Kinch, [2004] O.J. No. 486 (QL) (S.C.J.O.), at paras. 50 to 53, outlined some of the legal criteria to consider in determining whether an accused motorist has committed the offence of careless driving, such as the standard of care and skill required of a motorist is not one of perfection; that the factual standard of care and skill is constantly shifting, depending on road, visibility, weather conditions, traffic conditions and any other condition that ordinary prudent drivers would take into consideration; that the standard of care and skill is objective, impersonal and universal, and not related to the degree of proficiency or experience of a particular driver; and that in cases involving accidents, the gravamen of the offence is whether the prosecution has established the accused had been driving carelessly and not based on the consequences of the driving:

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. 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.

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.).

Where an accident has occurred, the fact that serious injury or death has resulted is not, except in unusual cases, relevant to an assessment of whether there has been a departure from the standard of care which would justify a finding of careless driving: R. v. Globocki (1991), 26 M.V.R. (2d) 179 (Ont. Ct. J.-Prov. Div.). The Crown had to show a sufficient departure from the standard of a prudent and reasonable driver to make the driving "deserving of punishment." In acquitting the accused who had struck a pedestrian in Globocki, the trial judge noted:

A driver is entitled to make reasonable assumptions about the behavior 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. Therefore, the mere fact that this defendant failed to take action as the pedestrian crossed the curb lane does not establish a departure from the standard of care expected in the circumstances.

Finally, Keenan J. sitting on appeal in R. v. Ashton [1985] O.J. No. 1795 (Ont. Dist. Ct.) rejected the Appellant/Crown's submission that a fact in support of a finding of careless driving was that the Respondent was driving a motorcycle which killed one human being and seriously injured another. The position reflected a fundamental misconception of the principles of liability. It was the wrongful act or omission of the offender which rendered him or her liable, not the unhappy result.

[220] In addition, in R. v. McIver, [1965] O.J. No. 998 (QL) (O.C.A.), Mackay J.A. recognized that an accused can show an absence of negligence as a defence to careless driving by proving on a balance of probabilities that the defendant's impugned driving conduct had been caused by a mechanical failure or other circumstance that he could not have reasonably foreseen:

On a charge laid under s. 60 [now s. 130] of the Highway Traffic Act, it is open to the accused as a defence, to show an absence of negligence on his part. For example, that his conduct was caused by the negligence of some other person, or by showing that the cause was a mechanical failure, or other circumstance, that he could not reasonable have forseen. … It is in accord with principle to assume that the standard of proof to be attained by D is on the balance of probability only. Nevertheless, even if D fails in this endeavour, there cannot be a conviction unless P has proved his case beyond reasonable doubt.

[221] Furthermore, in R. v. Pyszko, [1998] O.J. No. 1218 (QL) (Ont. Ct. (Prov. Div.)), at para. 14, Fontana J. explained that Beauchamp had been modified by McIver and that McIver in effect had shifted the onus to the accused to demonstrate that the act had been done without negligence or fault, as a defence to the charge of careless driving:

I am of the view that Beauchamp is modified by McIver which is later in time. McIver, in my view has the effect of shifting the onus to the accused to demonstrate that the act was done without negligence or fault.

[222] Moreover, in R. v. Skorput (1992), 72 C.C.C. (3d) 294 (Ont. Ct. (Prov. Div.)), MacDonnell J. (as he was then) held that in order to establish a prima facie case of careless driving sufficient to convict an accused who elects to present no evidence, the prosecution must establish beyond a reasonable doubt a departure from the standard of care of a driver exercising ordinary care. Moreover, he confirmed that the onus on a defendant to establish an absence of negligence only arises once the Crown establishes a prima facie case:

Careless driving is a regulatory offence as that term is understood in light of Sault Ste. Marie and Wholesale Travel. As was stated above, in the prosecution of a regulatory offence the Crown ordinarily establishes a prima facie case upon proving that the defendant committed the actus reus of the of fence. At that point, the burden of showing that reasonable care was taken shifts to the defendant. However, careless driving is somewhat of an anomaly in that the failure to take reasonable care is part of the actus reus of the offence. In R. v. Beauchamp (1953), 106 C.C.C. 6, at page 13, the Ontario Court of Appeal stated that the test of careless driving is:

...not whether, if the accused had used greater care or skill, the accident would not have happened. It is whether it is proved beyond reasonable doubt that the accused, in light of the existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances.

To establish a prima facie case of careless driving, sufficient to convict a defendant who elects to present no evidence, the prosecution must establish beyond a reasonable doubt a departure from a standard of care. The onus of establishing an absence of negligence only arises once the Crown establishes a prima facie case.

[223] In addition, Hill J. in R. v. Bisram, [2011] O.J. No. 3048 (QL) (S.C.J.O.), at paras. 270 and 271, confirmed that in order to find an accused guilty of committing an offence based on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty, that drawing an inference must be carefully distinguished from conjecture or speculation, and that in assessing circumstantial evidence, a trier must be alert to explanation or contradiction or inference pointing toward innocence:

In order to find guilt in a circumstantial evidence case, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paras. 33-4. Inference must be carefully distinguished from conjecture or speculation. At all times, in assessing circumstantial evidence, a trier must be alert to explanation or contradiction or inference pointing toward innocence. The trier of fact must assess the reliability and credibility of any underlying direct evidence as well as whether that evidence reasonably supports the circumstantial inference to be drawn from that evidence.

Circumstantial evidence is not to be evaluated piece by piece but rather cumulatively. With circumstantial evidence based on reasoning or inference-drawing through probability (R. v. Arp (1998), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64), a trier of fact's application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 33-40, 47-8; R. v. Yousif, [2011] A.J. No. 42, (2011), 92 W.C.B. (2d) 259 (Alta. C.A.), at para. 5; In re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70.

[224] And, in assessing whether the offence of careless driving has been committed by an accused, the impugned driving must be shown to depart from the standard of care that a reasonably prudent motorist would have exhibited in the same circumstances that had confronted the accused motorist, and is deserving of punishment: R. v. Wilson, [1971] 1 O.R. 349, 1 C.C.C. (2d) 466 (O.C.A.). Ergo, proof of mere negligent driving does not necessarily equate to the offence of careless driving.

[225] In addition, as this court indicated in R. v. Jackson, 2010 ONCJ 487 (O.C.J.), at paras. 213 to 214, the analysis to be used in determining whether the defendant should be convicted of committing the strict liability offence contained in s. 130 requires a two-stage inquiry. This entails first determining whether the Crown has proven beyond a reasonable doubt that the defendant committed the actus reus of the offence. And, if the Crown meets its burden, then the second stage of the inquiry is undertaken to determine if the defendant has proven due diligence on his part, on the balance of probabilities, by either showing that he had taken all reasonable care for the circumstances to avoid committing the offence or that he had acted under a reasonable mistaken set of facts, if believed, would make committing the prohibited act innocent:

Hence, the distinctive feature of strict liability offences in comparison to the mens rea or absolute liability category of offences is that there is a two-stage inquiry for determining whether the defendant has committed the strict liability offence in question. The prosecution in the first stage of the inquiry for this proceeding is required to prove beyond a reasonable doubt that the defendant has committed the prohibited act … If the prosecution fulfils its burden of proof, then in the second stage of the inquiry the defendant has the onus to prove on a balance of probabilities the defence of due diligence or that he had not been negligent or at fault in committing the prohibited act, in order to be acquitted of the offence.

Despite the tragic consequences, it must be kept in mind that a trier of fact does not consider or decide by emotion, but must impassionately and soberly consider all the admissible evidence and testimony and to properly apply it to the relevant law in deciding whether the defendant has committed the offence … beyond a reasonable doubt and in determining whether the defendant has also met his burden of proving that he had not been at fault or negligent in his conduct, so as to be acquitted of the offence for this particular category of offence that allows for a due diligence defence.

[226] Furthermore, as this court had summarized in R. v. Cianchino, [2010] O.J. No. 3162 (QL) (O.C.J.), at para. 91, it is helpful in careless driving cases to use a risk analysis framework, which involves differentiating between risk assessment and risk management for the two-stage inquiry used to determine whether an accused has committed the offence of careless driving. Also, as indicated in R. v. Cianchino this risk analysis framework had been developed by Todd Archibald, Kenneth Jull, and Kent Roach, and explained in their textbook entitled, "Regulatory And Corporate Liability: From Due Diligence To Risk Management" (Aurora, Ontario: Canada Law Book Inc., 2007). In addition, at pp. 4-14.1 to 4-15 of that textbook, the three authors equated the two-stage inquiry applicable to strict liability offences as an assessment of the risk for the first stage of proving the actus reus of the offence and the management of that risk for the second stage of considering whether any due diligence defence had been made out by the accused. Moreover, where the actus reus of the offence requires proof of an accused's lack of reasonable care, then the first stage of the inquiry requires the court to assess the risk and foreseeability of the harm that could result from the accused's impugned conduct, as well as the accused's awareness of the risk of harm that their conduct would create, in deciding whether the actus reus of the offence has been committed beyond a reasonable doubt; while for the second stage of the inquiry, in which the accused has the onus to establish a due diligence defence on a balance of probabilities to avoid being convicted, the court has to assess the accused's efforts in the management of that risk of harm in order to determine whether the accused had taken all reasonable care in the circumstances:

The concept of due diligence might appear to create a paradox at first sight. If the prosecution has proven that the actus reus has occurred beyond a reasonable doubt, how can the defence prove that reasonable steps were taken to avoid that very event or any foreseeable harm? As first blush, due diligence appears to undercut the risk assessment inherent in the actus reus. If one is committed to the values underlying the codification of these standards in the first place, it seems counter-intuitive to now engage in a discussion of their permissible failure. For example, for an environmentalist, it seems wrong to acquit a corporation for permitting a discharge that impairs the environment.

The resolution of this apparent paradox lies in distinguishing between risk assessment and risk management. Risk assessment is central to the codified standards that the prosecution must prove were violated, when the focus shifts to due diligence, the issue relates to fault and punishment. Should an organization or individual be punished for their failure to maintain the codified standards in this particular case? Here the emphasis is on risk management. It is possible that a failure to maintain standards is excusable in all the circumstances when put in a larger context. This is unique to the two-staged element of due diligence.

[227] The authors also at p. I-3 of their textbook, "Regulatory And Corporate Liability: From Due Diligence To Risk Management", reasoned that proof of actual harm is not required to prove a breach of a regulation, but whether the standard of care designed to prevent the harm has been met by the accused person:

Many regulatory offences do not require actual harm but, rather, are based on a threshold standard of care designed to prevent harm.

(A) FIRST STAGE OF THE INQUIRY FOR A STRICT LIABILITY OFFENCE: HAS THE PROSECUTION PROVEN THE ACTUS REUS OF THE OFFENCE BEYOND A REASONABLE DOUBT?

[228] With respect to the first stage of the inquiry for the case at bar, the prosecution contends that it has met its burden in proving the defendant has committed the actus reus of the offence beyond a reasonable doubt, since the circumstantial evidence proves the defendant had been driving without due care and attention for the particular circumstances. Specifically, that the defendant had not been driving on Bovaird Drive at an appropriate or at a reasonably prudent speed for the weather and road conditions at the critical time, which is based on the circumstantial evidence that shows Bovaird Drive had been wet and not dry at the critical time and that the defendant could not have been driving at a slow speed, considering the pedestrian had been thrown a distance of 13 meters from the sidewalk when he had been struck by the defendant's vehicle; and considering the smashed out window and the deep dent on the rear driver's side door where the pedestrian had come into contact with the defendant's vehicle; and considering the severe injuries that the pedestrian had received from the collision with the defendant's vehicle; and considering that the defendant's vehicle had gone over the curb when it had been sliding sidewalks. In addition, the prosecution submits there is no evidence adduced that the brakes on the defendant's vehicle had malfunctioned or that there had been a mechanical defect that had caused the defendant's vehicle to suddenly and unexpectedly lose control, spin, and abruptly leave the roadway.

[229] On the other hand, the defendant contends the Crown has failed to prove the defendant has committed the actus reus of the offence, as there is no direct evidence that the defendant had been driving his vehicle at a speed that had been too fast for the road and weather conditions at the critical time; nor is there any evidence that the defendant's driving had departed from that of an ordinary and prudent driver for the circumstances; nor is there any evidence that the defendant had disregarded the safety of others using the highway at the critical time. Furthermore, the defendant submits that the brakes on the defendant's vehicle had malfunctioned, which had been a mechanical defect in his vehicle that the defendant had been unaware of or that was not easily detected, considering that the licensed mechanic, who had inspected the defendant's vehicle after the collision had occurred, had determined that one of the brake lines on the defendant's vehicle had been severely corroded and that the rear brake lines had not been properly attached to the defendant's vehicle, and of which the defendant submits had caused his brakes to fail at that critical moment. Accordingly, the defendant submits this particular evidence clearly establishes that the defendant's vehicle had mechanically malfunctioned and that the accident had occurred due to this mechanical failure, which had been beyond the control of the defendant.

[230] As such, the facts at issue, which need to be resolved, are the following: (1) at the time the defendant had been driving eastbound on Bovaird Drive when the defendant's vehicle had rotated out of control and abruptly left the roadway, did the brakes on the defendant's vehicle suddenly and unexpectedly fail and is that what had caused the vehicle to spin out of control? Ergo, if the brakes had suddenly failed and had been the cause of the defendant's vehicle spinning out of control, then the defendant may have a reasonable explanation to rebut any inference of negligence or to rebut any inference that he had been driving without due care and attention or without reasonable consideration for other person using the highway at the critical time. (2) However, if the evidence does not show that the brakes on the defendant's vehicle had been defective or inoperative at that critical moment, then the next issue to decide is whether the road surface of the eastbound lanes of Bovaird Drive had been wet from rain falling or had it been wet from a previous heavy rainfall or had the road surface had been dry as the defendant had testified to at trial? (3) And, if the road surface of the eastbound lanes of Bovaird Drive is proven beyond a reasonable doubt to have been wet at the critical time, then the issue becomes whether the defendant had been operating or driving his vehicle at an appropriate or prudent speed on Bovaird Drive for the weather and road conditions, just before the accident occurred.

(1) The Fact That An Accident Involving A Motor Vehicle Had Occurred Is Not Necessarily Evidence Of Careless Driving

[231] The defendant's vehicle had lost control, spun, and abruptly left the roadway where it struck a pedestrian on a sidewalk. The accident itself, depending on the circumstances, may infer the defendant had been driving without due care or attention or without reasonable consideration for other persons using the highway, but as MacDonnell J. (as he was then) indicated in R. v. Skorput (1992), 72 C.C.C. (3d) 294 (Ont. Ct. (Prov. Div.)), the existence of an accident involving a motor vehicle does not necessarily infer there has been careless driving on the part of the driver:

Those remarks affirm that the 'prohibited act' which the Crown must prove in order to establish a prima facie case of careless driving is not the mere fact of an accident but rather the conduct defined in what is now s. 111 [now s. 130] of the Highway Traffic Act. In substance, the Crown must prove a departure from a standard of care. It is only when that is proved that an onus shifts to the defendant to show that he was not negligent. In McIver, McKay J.A. accepted as correct the proposition that the defendant bears the burden of establishing his 'defence' of lack of negligence or fault on a balance of probabilities. However, he also adopted the submission that even if the defendant fails to establish lack of negligence there could not be a conviction unless the prosecution proved its case beyond reasonable doubt. In many cases of careless driving, the effect of this will be to make the onus on the accused to establish due diligence academic. If the prosecution's case is that the defendant's driving demonstrated an absence of due care and attention, and the defence is that the defendant was being reasonably careful - i.e. that he was not negligent - any defence evidence which raises a reasonable doubt as to that issue will produce an acquittal. In that event, it would be a moot question whether the defence of due diligence was proved on a balance of probabilities.

(2) Where A Vehicle Leaves The Roadway, Making An Inference Of Negligence Against The Defendant Will Depend On The Relevant Circumstances Of The Particular Case

[232] Once again, the defendant's vehicle leaving the roadway of Bovaird Drive, going over a curb and grass boulevard, and then striking a pedestrian on the sidewalk, in itself could factually support an inference that the defendant's driving had been negligent, since vehicles do not normally leave roadways and strike pedestrians on a sidewalk. However, an inference of negligence where a vehicle suddenly leaves the roadway is not automatic as a matter of law and depends on the relevant circumstances of the particular case: Fontaine v. British Columbia (Official Administrator), [1997] S.C.J. No. 100 (QL) (S.C.C.), at para. 20:

… It has been held on numerous occasions that evidence of a vehicle leaving the roadway gives rise to an inference of negligence. Whether that will be so in any given case, however, can only be determined after considering the relevant circumstances of the particular case.

[233] Therefore, the fact that the defendant's vehicle had abruptly left the roadway is only circumstantial evidence that could support an inference of negligence being drawn against the defendant. And, whether or not an inference of negligence should be drawn from the evidence will depend on the relevant circumstances of this particular case. Moreover, the strength of the inference of negligence and the merit of the explanation that would be required from the defendant to rebut the inference of negligence, will depend on what the circumstantial evidence reasonably implies.

(3) Relevant Circumstances Or Factors To Consider

[234] In deciding whether the prosecution has met its burden in proving the defendant has committed the actus reus of the offence of careless driving, the relevant circumstances surrounding the event that occurred at 5:45 a.m. on July 26, 2012, on Bovaird Drive have to be assessed. Such factors, include visibility, road, conditions, weather conditions, the nature of the road, lighting conditions, volume of traffic, and other relevant conditions that could affect the driving ability of motorists.

(a) weather conditions

[235] Although the defendant in his testimony adamantly stated that the weather had been clear and that Bovaird Drive had been dry and that it had not being raining whatsoever on Bovaird Drive at 5:45 a.m., when his vehicle lost control on Bovaird Drive and abruptly left the roadway, Cst. Pupo had testified that at approximately 5:30 a.m. when he had been driving to work in the westbound lanes of Bovaird Drive, it had been raining steadily and heavily and that the visibility had been poor and that water had been pooling on the westbound lanes of Bovaird Drive.

[236] In addition, Cst. Aujla testified that at 5:51 a.m. when he had arrived at Bovaird Drive and parked his cruiser adjacent to the scene of the accident, he had observed that the road had been wet from a recent rain, but that it had not been raining on Bovaird Drive when he had arrived.

[237] Furthermore, the Environment Canada Hourly Data Report (Ex. 14) which is recorded at Toronto Lester B. Pearson International Airport indicated that there had had been "rain, fog" at 4:00 a.m. Local Standard Time (or 5:00 a.m. Daylight Saving Time).

[238] Therefore, the weather is a factor in determining whether the defendant had been driving without due care and attention or without reasonable consideration for other persons using the highway, just before the defendant's vehicle lost control and abruptly left the roadway.

(b) lighting conditions on Bovaird Drive

[239] At the time the defendant's vehicle had lost control, it had been approximately 5:45 a.m. In addition, the Fatal Motor Vehicle Collision Report (Ex. 11) had made reference to the National Research Council Canada sunrise/sunset calculator, which had indicated that sunrise on July 26, 2012, had been at 5:00 a.m.

[240] Moreover, the defendant had testified the sun was just rising and that he had no difficulty driving on Bovaird Drive in respect to the visibility. He was also adamant that it had not been raining whatsoever at that time on Bovaird Drive.

[241] On the other hand, Cst. Pupo had testified that when he had been driving westbound on Bovaird Drive at approximately 5:30 a.m. that it had been raining steadily and heavily and that the visibility had been poor.

[242] However, Cst. Aujla, the first officer that arrived on the scene 6 minutes after the accident had occurred, testified that he did not need a flashlight and that he had no difficulty with the visibility when he had arrived at the scene at 5:51 a.m.

[243] Hence, the evidence does not show that the visibility had been poor at 5:45 a.m., when the defendant's vehicle had spun out of control. As such, the lighting conditions at the critical time is not a factor in determining whether the defendant had been driving without due care and attention or without reasonable consideration for other persons using the highway, just before the defendant's vehicle lost control and abruptly left the roadway.

(c) conditions of road surface

[244] Cst. Pupo had testified that when he had been driving to work in the westbound lanes of Bovaird Drive at approximately 5:30 a.m. on July 26, 2012, by the area where the accident would occur, he had observed water pooling on the westbound lanes of Bovaird Drive, that it had been raining steadily and heavily, and that the visibility had been poor.

[245] On the other hand, the defendant testified that at 5:45 a.m. when he was driving on the eastbound lanes of Bovaird Drive, just west of Dixie Road, and just before his vehicle abruptly left the roadway, that the road had been dry and that it had not been raining whatsoever on that section of Bovaird Drive.

[246] However, Cst. Aujla testified that at 5:51 a.m. when he had arrived at Bovaird Drive and parked his cruiser adjacent to the scene of the accident, he had observed that the road was wet from a recent rain, but that it had not been raining on Bovaird Drive when he had arrived. He also said he had no problem with driving to the accident scene. Cst. Aujla also said Bovaird Drive is made of paved asphalt and is a flat and straight road in the area where the defendant had lost control of his vehicle.

[247] In addition, the Environment Canada Hourly Data Report (Ex. 14) which is recorded at Toronto Lester B. Pearson International Airport indicated that there had had been "rain, fog" at 4:00 a.m. Local Standard Time (or at 5:00 a.m. Daylight Saving Time).

[248] Moreover, based on the heavy and steady rainfall and pooling of water on the westbound lanes of Bovaird Drive that had been observed by Cst. Pupo at approximately 5:30 a.m., which is 15 minutes before the defendant's vehicle had lost control in the eastbound lanes of Bovaird Drive and had left the roadway abruptly, as well as the observation made by Cst. Aujla at 5:51 a.m. that Bovaird Drive had been wet from a recent rain, I find that the road surface of Bovaird Drive would have been logically wet when the defendant's vehicle had abruptly left the roadway and struck the pedestrian at 5:45 a.m. and not dry as the defendant had testified and contended it had been at the critical time.

[249] Furthermore, because wet roads have less friction, then depending on the amount and depth of the water on the road and the speed at which the defendant's vehicle had been travelling across the wet road surface, those two factors together could have precipitated the defendant's vehicle spinning out of control.

[250] Ergo, the road surface of the eastbound lanes of Bovaird Drive being wet had been a significant factor in determining whether the defendant had been driving without due care and attention or without reasonable consideration for other persons using the highway, just before the defendant's vehicle lost control and abruptly left the roadway.

(d) traffic conditions

[251] At the time the defendant's vehicle had spun out of control, the traffic had been very light with possibly only a few vehicles on the road, which appears to be consistent with the early morning time of 5:45 a.m. and that the fact that no other persons had stopped to assist the defendant. In addition, the defendant had first testified that there had been no other vehicles on the road when he had stopped at the traffic light when he had first exited Highway 410, but then later testified that one vehicle had sped past him after he had been stopped at the traffic light at the intersection of Bovaird Drive and Great Lakes Drive, as well as observing that there had been a few vehicles behind him.

[252] Moreover, no other vehicle in the vicinity of the defendant had contributed to the defendant losing control of his vehicle.

[253] Thus, the volume of traffic was not a factor in determining whether the defendant had been driving without due care and attention or without reasonable consideration for other persons using the highway, just before the defendant's vehicle lost control and abruptly left the roadway.

(e) nature of roadway

[254] The area of Bovaird Drive where the defendant's vehicle spun out of control is straight, level, and comprised of three eastbound lanes that are separated by a median from the three westbound lanes. The defendant had been driving in the eastbound lanes which are paved asphalt and in good shape. There were no potholes, cracks, or obstructions on the road at the critical time. Moreover, based on Bovaird Drive being a six-lane highway with a speed limit of 70 k.p.h., it can be inferred that Bovaird Drive had been built to accommodate large volumes of traffic and is a major artery in Brampton. And, because the speed limit is 70 k.p.h. for the area where the defendant's vehicle spun out of control, this particular area of Bovaird Drive also accommodates motor vehicles travelling at relatively fast speeds. Furthermore, during peak periods or rush hour, the road would accommodate a large volume of traffic.

[255] In addition, the area in question on Bovaird Drive is located in a residential area.

[256] Ergo, the nature of Bovaird Drive in the area where the defendant's vehicle spun out of control would not have been a factor in determining whether the defendant had been driving without due care and attention or without reasonable consideration for other persons using the highway, just before the defendant's vehicle lost control and abruptly left the roadway, although that stretch of Bovaird Drive being paved, straight and level, and comprised of three lanes would nevertheless be conducive for motorists to drive their vehicles at relatively fast speeds of 70 k.p.h. or more.

(f) speed of defendant's vehicle at critical time

[257] The defendant testified that he had not been in a hurry to get to work and had been travelling between 50 to 60 k.p.h. at the critical time, which is below the posted speed limit of 70 k.p.h. for that particular part of Bovaird Drive.

[258] In addition, Cst. Pupo, the accident reconstructionist, had testified that he could not determine the speed of the defendant's vehicle just before it spun out of control, because no data could be retrieved from the defendant's vehicle that could be used to calculate or determine its speed, nor could the speed be calculated or determined from the visible tire marks left by the defendant's vehicle using the coefficient of friction calculations and speed formula because the tire marks had crossed over three different types of surfaces.

[259] However, Cst. Pupo opines that the defendant's vehicle could not have been going at a slow speed when the defendant's vehicle lost control, spun, and went over the curb, in light of the defendant's vehicle being able to go over the curb while the vehicle had been moving sideways; because of the amount and severity of the damage visible on the defendant's vehicle; the severe injuries sustained by the pedestrian from being struck by the defendant's vehicle; and the distance of 13 meters that the pedestrian had been thrown from the sidewalk after being struck by the defendant's vehicle.

[260] Accordingly, the speed of the defendant's vehicle would be a factor in determining whether the defendant had been driving without due care and attention or without reasonable consideration for other persons using the highway, just before the defendant's vehicle lost control and abruptly left the roadway.

(4) Had The Brakes On The Defendant's Vehicle Failed Suddenly At The Critical Time?

[261] In an effort to explain why the defendant's vehicle suddenly lost control and abruptly left the roadway, the defendant contends the evidence clearly shows the brakes on the defendant's vehicle had unexpectedly and suddenly malfunctioned. To support this contention, the defendant points to the testimony from Chris DiMartino, the licensed mechanic, who had examined the defendant's vehicle shortly after the accident had occurred on July 26, 2012, and who had testified about not being able to confirm whether the brakes on the defendant's vehicle were operating or functioning properly because of the presence of a biohazard in the vehicle, of finding corrosion on the flex line of one of the brake lines, and of observing that the rear brakes lines had not been properly attached to the defendant's vehicle.

[262] In addition, the defendant had told Cst. Furlotte some 64 minutes after the accident had occurred that he had been changing from the middle of the three eastbound lanes of Bovaird Drive to the curb lane and had applied his brakes as he normally does when changing lanes, when unexpectedly and suddenly his vehicle started to rotate clockwise out of control, abruptly leave the roadway, and go over the curb and strike the pedestrian on the sidewalk. Moreover, the defendant said he had his foot on the brakes until his vehicle finally stopped on the grass area just north of the sound barrier wall. He also informed Cst. Furlotte that he did not know why his vehicle had gone out of control at that moment.

[263] The defendant also submits that the cause of the defendant not being able to control the movement of his Pontiac motor vehicle and the vehicle jumping the curb had been from the failure of the vehicle's brakes, which had been sudden and without warning, and in which he contends is evidenced by the corroded brake line in the vehicle and the improper attachment of the rear brake lines that run from the front of the vehicle to the rear of the vehicle. Moreover, the defendant submits that he is not a licensed mechanic and would not have known that the brakes on the vehicle were defective or that the problems with the brakes could be reasonably or easily discovered without having the vehicle inspected by a qualified mechanic. As such, the defendant submits he had taken all reasonable care and had believed the vehicle's brakes were working properly and that the collision between the defendant's motor vehicle and the pedestrian had been an inevitable or an unavoidable accident because of the sudden and unexpected failure of the brakes on the defendant's vehicle.

[264] Moreover, in Rintoul v. X-Ray and Radium Industries Ltd., [1956] S.C.R. 674 (S.C.C.), the accused in that case had claimed that the cause of the motor vehicle collision had been from a mechanical defect, when the vehicle's brakes suddenly did not work, although the brakes had been working properly when the brakes had been applied on five previous occasions during the vehicle's journey just before the accident had occurred, and on the three occasions after the vehicle had been driven by a police officer back to the police station after the collision had occurred. Cartwright J., writing for the Supreme Court of Canada In Rintoul v. X-Ray and Radium Industries Ltd., confirmed the defence of inevitable accident and highlighted the leading case in Ontario of McIntosh v. Bell, [1932] O.R. 179 (O.C.A.), in which the Court of Appeal had accepted that a person relying on inevitable accident must prove that some event had occurred in which they had no control and that the resulting consequence caused by the event could not have been avoided by the exercise of reasonable care. In addition, the Supreme Court reasoned that in a situation where a person claims that the motor vehicle accident had been caused by the sudden failure of their vehicle's brakes, then that person carries the onus of showing that such mechanical failure could not have been prevented by the exercise of reasonable care and that assuming such mechanical failure had occurred without negligence on their part, that they could not by the exercise of reasonable care have avoided the collision caused by the sudden failure of the brakes. Moreover, the Supreme Court held that in order to show that the failure of the brakes could not have been prevented by reasonable care, the party claiming the mechanical failure was also required to show that there had been adequate and timely inspection of the brakes before the failure occurred and that the defect in the brakes could not have reasonably been discovered:

There can be no doubt that, generally speaking, when a car, in broad daylight, runs into the rear of another which is stationary on the highway and which has not come to a sudden stop, the fault is in the driving of the moving car, and the driver of such car must satisfy the Court that the collision did not occur as a result of his negligence. The learned trial judge regarded this principle as applicable to the case at bar but was of the view that the unexpected failure of the service brakes placed Ouellette in a situation of emergency in which he acted without negligence and that the collision was the result of an inevitable accident.

The defence of inevitable accident has been discussed in many decisions. A leading case in Ontario is McIntosh v. Bell [, [1932] O.R.179], which was approved by this Court in Claxton v. Grandy [, [1934] 4 D.L.R. 257 at 263]. At page 187 of the report of McIntosh v. Bell, Hodgins J.A. adopts the words of Lord Esher M.R. in The Schwan [[1892] P. 419 at 429], as follows:--

. . . In my opinion, a person relying on inevitable accident must shew that something happened over which he had no control, and the effect of which could not have been avoided by the greatest care and skill.

In my view, in the case at bar the respondents have failed to prove two matters both of which were essential to the establishment of the defence of inevitable accident. These matters are (i) that the alleged failure of the service brakes could not have been prevented by the exercise of reasonable care on their part, and (ii) that, assuming that such failure occurred without negligence on the part of the respondents, Ouellette could not, by the exercise of reasonable care, have avoided the collision which he claims was the effect of such failure.

As to the first matter, assuming that the service brakes failed suddenly, the onus resting on the respondents was to show that such failure could not have been prevented by the exercise of reasonable care. In Halsbury, 2nd Edition, Volume 23, page 640, section 901, the learned author says: --

Driving with defective apparatus if the defect might reasonably have been discovered . . . (and other matters) . . . are negligent acts which render a defendant liable for injuries of which they are the effective cause.

This passage has been approved by McCardie J. in Phillips v. Brittania Hygienic Laundry Co. [[1923] 1 K.B. 539 at 551 and 552] and by Hogg J.A. in Grise v. Rankin et al. [[1951] O.W.N. 21 at 22], and, in my opinion, correctly states the law.

In the case at bar the respondents have made no attempt to prove that the sudden failure could not have been prevented by reasonable care on their part and particularly by adequate inspection. They called no witness to explain the extraordinary fact that the service brakes which were working properly immediately before and immediately after the accident and passed satisfactorily the test prescribed in the regulations failed momentarily at the time of the accident. Without going so far as to say that such a story appears to be intrinsically impossible, it is clear that its nature was such as to cast upon the defendants the burden of furnishing a clear and satisfactory explanation of so unusual an occurrence.

Furthermore, the respondents have made no attempt to shew that the defect, whatever it was, could not reasonably have been discovered. The evidence is that the respondent's car was a 1952 Dodge. There is no evidence: (a) as to when it was purchased, or (b) whether it was purchased new or second-hand, or (c) how far it had been driven, or (d) how often, if ever, the service brakes had been inspected, or (e) how often, if ever, the hand brakes had been inspected. The only evidence touching the point at all is Ouellette's statement quoted above that there "was work done on the brakes" the day before the accident. There is nothing to indicate whether the brakes referred to in this statement were the service brakes or the hand breaks although in argument it seemed to be assumed that the reference was to the service brakes. No evidence was given as to what instructions were given to the third party, or as to what work was done by him, or as to what report, if any, was made by the third party when the car was delivered, or as to whether the third party was competent to inspect or repair brakes. The onus resting on the respondents in this regard is not discharged by the bald statement that on the day before the accident there was work (unspecified) done on the brakes.

Passing to the second matter mentioned above, i.e., that even assuming that the failure of the service brakes occurred without negligence on the part of the respondents, they have failed to show that Ouellette could not have avoided the collision by the exercise of reasonable care, …

[265] Furthermore, in Lemaire v. Ashabi, [2003] B.C.J. No. 2438 (QL), at paras. 13 to 18, the British Columbia Court of Appeal upheld the trial judge's finding that where the explanation offered by a person to rebut the inference of negligence had been too speculative as to the cause of the vehicle defect, where a wheel had suddenly fallen off that person's vehicle, then the person would not have met their burden in furnishing sufficient evidence to establish an alternative explanation that would negate the inference of negligence against that person:

The respondents' expert, Mr. Bailey, concluded that the condition of the wheel that had come off and its wheel assembly was not inconsistent with the wheel nuts being improperly tightened and loosening gradually over time. It was his opinion, which was accepted by the trial judge, that the wheel had come off because it had not been tightened to specification. Because of her conclusion that Mr. Brown's evidence was generally not reliable, she stated (at para. 97) that she preferred Mr. Bailey's evidence to Mr. Brown's, where they conflicted.

The trial judge found (at para. 120) that the appellant may have failed to tighten the wheel nuts to specification, because he used a cross-wrench, instead of a torque wrench or other instrument capable of objectively measuring whether a wheel nut was tightened to specification.

The trial judge then considered the evidence that some unknown person could have loosened the wheel nuts when the appellant was away from his truck. The evidence was primarily that of the appellant's girlfriend, who testified that she heard some rustling near the driveway where the truck was parked before the accident. The trial judge dismissed (at para. 134) this evidence as "too speculative" and the suggestion that the wheel nuts had been loosened as proposed by the appellant "too improbable".

The trial judge concluded (at para. 136) that "the Defendant failed to establish an alternative explanation negating the inference of negligence", and found the appellant liable for the accident.

The appellant conceded at this hearing that there was sufficient evidence to establish a prima facie case of negligence.

The appellant claims, however, that the trial judge erred in finding that the appellant had not presented sufficient evidence to negate the inference of negligence. Specifically, his counsel argued that she erred by failing to consider the appellant's direct evidence of the method of installation of the wheel nuts and the opportunities for tampering during the time-frame during which the truck was not in the control of the appellant, when it was parked while he was working or at home.

[266] However, despite the defendant in the case at bar being able to stop or having no difficulty in stopping his vehicle at three different intersections that had been showing a red traffic light on his drive to work that morning, and despite the defendant not having advised or immediately mentioning anything in his statement to Cst. Furlotte on July 26, 2012, about his brakes not working properly just before the defendant's vehicle lost control on Bovaird Drive, or that the defendant had difficulties with his brakes at that critical moment, the defendant nonetheless contends that the defendant's vehicle had rotated out of control because the evidence clearly shows that the brakes on the defendant's vehicle had suddenly and unexpectedly malfunctioned, and that the defendant had been unaware of this mechanical defect and that the defect could not be easily detected or discoverable by the defendant, since the defendant is not a licensed mechanic. Furthermore, the defendant contends the evidence that shows there had been a failure of the brakes is based on the testimony of Chris DiMartino, the licensed mechanic, who had testified that he could not do a road test or enter the defendant's vehicle to determine if the brakes were still functioning properly after the accident had occurred, and that DiMartino had found in his examination of the defendant's vehicle that the flex line of one of the brake lines to be corroded, and that the rear brake lines had not been properly secured to the frame of the defendant's vehicle.

[267] In respect to the contention that the brakes on the defendant's vehicle had suddenly malfunctioned when the defendant had applied the brakes in the midst of changing lanes, as the cause of the defendant's vehicle rotating out of control, I find there is no conclusive evidence that the brakes on the defendant's vehicle had been defective or that they had not been operating properly at the critical moment or that the defendant's vehicle had rotated out of control from some other mechanical defect at the time the defendant's vehicle had spun out of control and jumped the curb. Furthermore, Chris DiMartino had testified to finding brake or hydraulic fluid in the master cylinder and in the brake lines and that the brakes lines had not been perforated or leaking, that the brake pads, drums and other braking surfaces had met manufacturer's specifications, the caliper and wheel drums did not seize, and that the brake line that had the corrosion on it only fell apart when DiMartino had given that particular brake line a hard yank with his hand and that the corrosion on the brake line would not have prevented brake fluid from moving through that part of the brake line. Moreover, there is no evidence that the defendant had any problems with his brakes, when he had applied his brakes just before changing lanes on the eastbound lanes of Bovaird Drive, immediately before the defendant's vehicle went out of control, considering that if the defendant would have had difficulty with his brakes working properly, or that the brake pedal had suddenly went all the way to the floor when the defendant had applied pressure to the brake pedal, then one would have expected that the defendant would have immediately informed Cst. Furlotte on July 26, 2012, when his statement was being taken about the problems he had with the brakes on his vehicle. As such, I find the defendant's contention that the defendant's vehicle rotating out of control had been caused by the sudden failure of the brakes on the defendant's vehicle to be too speculative and only based on conjecture and the evidence does not support a finding that the brakes had suddenly failed.

(5) Were The Eastbound Lanes Of Bovaird Drive Just Before Dixie Road Wet When The Defendant's Vehicle Lost Control And Abruptly Left The Roadway?

[268] The defendant in his testimony is adamant that Bovaird Drive had been dry and that it had not been raining on Bovaird Drive at 5:45 a.m. just before his vehicle rotated out of control and abruptly left the roadway. However, Cst. Pupo had testified that when he had been driving to work in the westbound lanes of Bovaird Drive at approximately 5:30 a.m. by the area where the accident would occur, he had observed water pooling on the westbound lanes of Bovaird Drive, that it had been raining steadily and heavily, and that the visibility had been poor; while Cst. Aujla had testified that at 5:51 a.m. when he had arrived at Bovaird Drive 6 minutes after the accident had occurred and had parked his cruiser adjacent to the scene of the accident, he had observed the road had been wet from a recent rain, but that it had not been raining on Bovaird Drive when he had arrived. He also said he had no problem with driving to the accident scene and that he had no difficulty with the visibility.

[269] Moreover, the prosecution contends that the defendant's testimony about Bovaird Drive being dry and no rain whatsoever falling on Bovaird Drive at the critical time, and that it had been only drizzling on other roads, is not credible because his testimony conflicts with and is inconsistent with what the defendant had stated to Cst. Furlotte, who had taken the defendant's unsworn statement only 64 minutes after the accident had occurred on July 26, 2012, when the defendant had said the road surface of Bovaird Drive had been wet and that it had been drizzling on Bovaird Drive. In respect to the credibility of the defendant's testimony that the road surface of Bovaird Drive had been dry, I conclude after reviewing the transcript of the defendant's unsworn statement given to Cst. Furlotte, that the defendant had stated to Cst. Furlotte that the eastbound lanes of Bovaird Drive had been wet at the critical time, in particular the defendant had stated, "I know the road was wet and I didn't believe it would have picked up that spin like that" (Ex. 15, p. 29), and "I didn't realize the road was wet though cause it was drizzling" (Ex. 15, p. 31). Furthermore, the defendant had admitted under cross-examination at the trial that the road could have been wet.

[270] Accordingly, I do not find the defendant's testimony that the road surface of Bovaird Drive had been dry when the defendant's vehicle went out of control and went over the curb is credible, on account of the inconsistencies and contradictions between the unsworn statement he gave to Cst. Furlotte on July 26, 2012, and his testimony at trial. Instead, I find that the road surface had been still wet when the defendant's vehicle went out of control, spun, and went over the curb, which is a reasonable inference to make from the circumstantial evidence, since Cst. Pupo had observed heavy and steady rain falling on the westbound lanes and water pooling on the road surface of the westbound lanes of Bovaird Drive at approximately 5:30 a.m., just 15 minutes before the defendant's vehicle went out of control in the eastbound lanes of Bovaird Drive. Furthermore, when Cst. Aujla arrived at 5:51 a.m. at the location where the defendant's vehicle had rotated out of control in the eastbound lanes of Bovaird Drive, which is only 6 minutes after the defendant's vehicle had gone out of control, Cst. Aujla had observed that the road surface of Bovaird Drive had still been wet from a recent rainfall.

(6) Was The Defendant's Vehicle Travelling At A Slow Speed When The Defendant's Vehicle Went Out Of Control?

[271] The defendant testified that the speed the defendant's vehicle had been travelling at, just before the vehicle suddenly rotated out of control, had been between 50 to 60 k.p.h., which is below the posted speed limit of 70 k.p.h. for that portion of Bovaird Drive. In addition, the defendant testified that he had not been in a hurry that morning to get to work. It is also noteworthy that the defendant had answered Cst. Furlotte's query during the defendant's statement taken on July 26, 2012, as to whether the defendant knew the speed limit for Bovaird Drive, in which the defendant had replied, "I think it's 80 in some areas. It's 70 in some areas".

[272] In addition, if the road surface had been dry at the critical time, then it would be puzzling as to why the defendant had only been driving between 50 to 60 k.p.h. when the maximum speed for that part of Bovaird Drive had a maximum speed limit of 70 k.p.h., especially since that part of the road in the eastbound lanes of Bovaird Drive where the defendant's vehicle went out of control had been level and straight and comprised of three lanes, which would be conducive for motorists to drive their vehicles at speeds of 70 k.p.h. or more. As such, it would have been more plausible or that it would make much more logical sense if the defendant had been driving at the slower speeds of 50 to 60 kilometers in a posted 70 k.p.h. zone, were the roads in fact wet and that it had been raining steadily and heavily on Bovaird Drive at the critical moment.

[273] Moreover, the Chrysler assembly plant where the defendant worked is at 2250 Williams Parkway East, in the City of Brampton, in which Cst. Pupo had testified, was still several kilometers away from where the defendant's vehicle had went out of control on Bovaird Drive, which consequently indicates that the defendant still had to travel several kilometers more to get to his workplace and still arrive in time to properly get everything ready for the workers arriving to start their shift.

[274] However, in regards to when his shift would start that morning on July 26, 2012, the defendant had given inconsistent testimony in respect to the time his work or shift would commence on July 26, 2012. In his unsworn statement given to Cst. Furlotte on July 26, 2012, the defendant had stated that his shift would start at 6:30 a.m., but then at the trial, the defendant had testified that on July 26 th , he had planned to reach his workplace between 6:00 and 6:15 a.m. for the shift that starts at 7:00 a.m.

[275] In addition, when asked about what time he was supposed to start work on that day, the defendant had informed Cst. Furlotte that he "was supposed to start at 6:00", but then added, "well, really 6:30 but I go in for 6:00 and get a plan and everything so". Moreover, in the testimony that the defendant had given in the trial, he said that his intention had been to get to his workplace "between 6:00 and 6:15".

[276] Then, when asked by the prosecution why he had testified in the trial that the shift started at 7:00 a.m. when he had told Cst. Furlotte on July 26, 2012, that the shift started at 6:30 a.m., the defendant in his reply to the prosecution's question testified, "I told him the shift 6:30 but the shift doesn't start at 7:00 o'clock", and then elaborated by testifying, "Well really 6:30 but I go in for 6:00 and get a plan and everything to get - the shift actually starts at 7:00 o'clock. I was the maintenance supervisor. My start time and stop time is not driven by the clock."

[277] In addition, when it had been suggested to the defendant that there had been no mention of the shift starting at 7:00 a.m. in the defendant's statement to Cst. Furlotte on July 26, 2012, the defendant had agreed with that suggestion. The defendant then subsequently testified, "It is seven o'clock when we are on shutdown. When we are running production, production starts 6:30; production starts 5:30. When they are running production you are supposed to be in one hour before. When they are not running production, when we are in shut down, we starts at seven o'clock. I normally there between 6:00 and 6:15 and have everything planned for the guys starting at 7:00 o'clock".

[278] Therefore, the defendant's inconsistent or conflicting answers in respect to what his actual start time had been for starting his work or shift on July 26, 2012, of a 6:30 a.m. start time in his statement to Cst. Furlotte on July 26, 2012, and of a 7:00 a.m. start time in his testimony at the trial, undermines his credibility, since his testimony at trial of his shift commencing at 7:00 a.m. appears to be an effort by the defendant to show that the defendant had adequate time to get to work on the morning of July 26, 2012, and that he had not been in a hurry to get to work, and as such, no reason to speed when his vehicle rotated out of control.

[279] As such, and I do not find the defendant's testimony about what time his shift started or what time he had to be at work for on July 26, 2012, to be reliable.

[280] Unfortunately, the evidence does not indicate how far the defendant still had to travel to get to his workplace, what his actual start time had been for July 26, 2012, and how long it would it take to drive from the area on Bovaird Drive where the defendant's vehicle went out of control to his workplace at 2250 Williams Parkway East, in the City of Brampton. As such, I cannot determine if the defendant had needed to rush in order to get to work on time that morning.

[281] However, based on the circumstantial evidence, in particular the amount of damage done to the defendant's vehicle, which included a large dent in the rear driver's side door where Charles Sullivan had come into contact with the defendant's vehicle and the window of the rear driver's side door being smashed out; the severe injuries sustained by Charles Sullivan from being struck by the defendant's vehicle; that Charles Sullivan had been thrown a distance of 13 meters south of the sidewalk after being struck by the defendant's vehicle; and the defendant's vehicle rotating clockwise on the road and being able to jump the curb while the vehicle had been moving sideways, I find that the defendant's vehicle could not have been travelling at a slow speed.

(7) Was The Speed Of The Defendant's Vehicle At The Critical Moment Reasonable And Prudent For The Weather And Road Conditions On Bovaird Drive?

[282] Although I am mindful that the defendant's vehicle rotating out of control and abruptly leaving the roadway and going over the curb is not necessarily evidence of negligent driving, I do find that the road surface of the three eastbound lanes of Bovaird Drive had still been wet at the critical time and that the defendant's vehicle had not been travelling at a slow speed on Bovaird Drive when the vehicle suddenly went out of control, spun, and went over the curb, so that it would not be an unreasonable inference that the defendant's vehicle had been driven at a speed that had been excessive or not appropriate or reasonable for the wet road surface of the eastbound lanes of Bovaird Drive.

(8) Is There Any Other Reasonable Explanation From The Evidence Of Why The Defendant's Vehicle Had Suddenly Went Out Of Control, Spun, And Went Over The Curb?

[283] I find that there is no other reasonable explanation based on the evidence for why the defendant's vehicle had suddenly gone out of control and abruptly left the roadway. Moreover, the faulty brakes explanation or the suggestion that there had been some other latent defect in the brakes that had caused the defendant's vehicle to rotate out of control based on evidence indicating that one of the brake lines had been corroded or that the rear brake lines had not been secured to the defendant's vehicle is simply based on conjecture and is too speculative to sufficiently negate or rebut an inference of negligence.

(9) Was It Reasonably Foreseeable That The Defendant's Vehicle Would Suddenly Go Out Of Control And Leave The Roadway When The Road Was Wet From A Recent Rainfall, If The Defendant's Vehicle Had Been Driven At A Speed That Was Not Appropriate Or Reasonable For A Wet Road Surface?

[284] The evidence indicates that the defendant had been aware that it had been raining or drizzling when he had left his house that morning. He testified that the roads he had travelled on closer to his house had been wet and that it had been drizzling on his trip to work that morning of July 26, 2012.

[285] In addition, I find that that it would have been reasonably foreseeable that the defendant's vehicle could have suddenly gone out of control if the vehicle had been driven at a speed that had been excessive or not appropriate or reasonable for a wet road surface after a recent rainfall or from drizzling rain. Moreover, I also find that the defendant knew or ought to have known that the route to his workplace could have been comprised of wet roads, as he had been aware it had been drizzling when he had left his house that morning and that roads he had already travelled on had been wet before he reached Bovaird Drive, and that based on his 38 years of driving experience he would have known or ought to have known that driving too fast or not driving at a reasonably safe speed for a wet road surface could cause the vehicle to rotate or spin out of control on account of the layer of water between the road surface and the tires of the vehicle. In addition, a vehicle losing control on a wet road surface when the vehicle is travelling at a fast speed is not unlike a curling rock that travels down a sheet of ice and curves or spins on a layer of water on top of the ice surface that is used in the sport of curling before it stops, in which the movement of the curling rock over the layer of water is referred to as hydroplaning.

(10) Did The Prosecution Prove Beyond A Reasonable Doubt That The Defendant Has Committed the Actus Reus Of The Offence?

[286] Ergo, for the first part of the two-stage inquiry, I am satisfied that based on the circumstantial evidence, the prosecution has met their burden in proving beyond a reasonable doubt that the defendant on July 26, 2012, at 5:45 a.m., in the eastbound lanes of Bovaird Drive in the City of Brampton, had been driving without due care and attention or without reasonable consideration for other persons using the highway.

[287] In addition, I do not find that the evidence reasonably shows that the brakes on the defendant's vehicle had suddenly failed or were suddenly inoperative at the critical time, or that it had caused the defendant's vehicle to lose control, spin, and abruptly leave the roadway. Nor do I find that there is any evidence which reasonably shows there had been some other mechanical defect in respect to the defendant's vehicle that had caused the defendant's vehicle to lose control and go over the curb.

(C) SECOND STAGE OF THE INQUIRY FOR A STRICT LIABILITY OFFENCE: Has the defendant established the defence of due diligence on a balance of probabilities?

[288] Since the prosecution has met its burden of proving beyond a reasonable doubt that the defendant had committed the actus reus of the offence of careless driving set out in s. 130 of the Highway Traffic Act, then the defendant in the second stage of the inquiry has the burden to prove on a balance of probabilities that he has made out the due diligence defence or that he was not negligent or at fault in committing the prohibited act. To make out the defence of due diligence, as outlined by the Supreme Court of Canada in R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.), requires the defendant to prove on a balance of probabilities that he had taken all reasonable steps in the circumstances to drive with due care and attention and with reasonable consideration for other persons using the highway, or that he had been operating under a mistaken set of facts, if true, would render his act innocent:

… there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. …

[289] In respect to demonstrating reasonable care, the defendant had testified that he had not been in a rush to get to work that morning and that he been driving his vehicle at a speed between 50 to 60 k.p.h. in a posted 70 k.p.h. speed zone on Bovaird Drive, when his vehicle suddenly went out of control and went over the curb.

[290] Moreover, Chris DiMartino, the licensed mechanic, had testified that the defendant's vehicle would not have passed a Ministry of Transportation safety inspection, that the vehicle showed a lot of corrosion, and that the defendant's vehicle had been in very bad shape. Furthermore, as the defendant relies on a mechanical defect to explain his driving conduct and to explain why his vehicle had suddenly lost control, then the onus is on the defendant to prove he had properly maintained his vehicle so that it would be in good operating and mechanical shape. However, there was no evidence adduced by the defendant that he had regularly maintained the vehicle or that he had addressed the corrosion on his vehicle. Moreover, the defendant's contention that such mechanical defects or problems could not be easily seen by the defendant, who is not a mechanic, could have been detected if the defendant's vehicle had been regularly maintained by a licensed mechanic, who could have discovered any problems related to the corrosion on the defendant's vehicle.

[291] Furthermore, in Mclaren v. Rice, [2009] B.C.J. No. 2108 (QL) (B.C.S.C.), at paras. 27, 35, and 40, the court held that the pattern of vehicle maintenance had demonstrated that the owner had not kept the vehicle in regular repair and that the tie rod assembly had been defective due to poor maintenance:

I find this evidence telling. It satisfies me that Mr. Rice followed no scheduled maintenance of the truck either on a mileage or a temporal basis but rather drove the truck until it did not feel right. I find that such an event driven maintenance program was not taken with a view of preventing the very kind of accident that occurred but was done on an "as needed" basis without any useful or meaningful definition of need.

The second explanation the plaintiff offers is raised by the defendants as a latent defect in the tie rod assembly that could not have been prevented by the exercise of reasonable care. The defendants point to the evidence of Mr. Riddell from Good Guys Automotive who did an oil change in January 2005. Mr. Riddell was unable to say whether the Rice vehicle was put on a hoist and given a grease job or not.

… I find as well that the right tie rod assembly was defective and that when Jacob Rice reacted to the truck leaving the road by abruptly turning the wheel to the right, and it failed. I am also satisfied on the evidence of Mr. Riddell that the tie rods should be greased on a regular basis - he suggests every 3,000 km and that with reasonable care on the part of Jacob John Rice or Michael John Rice, the failure of the tie rod assembly would not have occurred. Jacob Rice knew there was something wrong with the steering, but he drove anyway without taking reasonable steps to satisfy himself that he could drive safely. Furthermore, Michael John Rice failed to make inspections and repairs on a regular and consistent basis whether every 3,000 km, as Mr. Riddell thought appropriate, or some other reasonable interval. Whether the truck left the road through the inattention of Jacob Rice or whether the tie rod assembly failed first, the accident was preventable by taking reasonable care. Thus, I find the defendants negligent and responsible for the accident in which Mr. Mclaren was injured.

[292] In addition, the defendant has not provided a reasonable explanation as to why the defendant's vehicle had lost control, spun, and abruptly left the roadway, to rebut the inference of negligence.

[293] Also, when contending that the vehicle losing control had been from a sudden or unexpected mechanical defect or problem, then the defendant also has to show he had his vehicle regularly maintained or had his vehicle checked regularly by a licensed mechanic and that it had been good condition mechanically to show that he had taken all reasonable steps in the circumstances.

(1) The Defendant's Credibility

[294] In regards to the defendant's testimony in the trial, I find there have been significant inconsistencies and contradictions between the evidence given by the defendant during the trial and the prior unsworn statements given by him to Cst. Furlotte on July 26, 2012. And, since the events on July 26, 2012, would have been fresh in the defendant's mind when he gave a voluntary statement to Cst. Furlotte approximately 64 minutes after the accident had occurred at 5:45 a.m., his statement would have been more reliable since the defendant would have had less time to concoct a narrative, as compared to when he had given testimony in the trial on June 20, 2013. Moreover, I am mindful that it is the sworn evidence given by the defendant at trial that I must assess, while the prior inconsistent unsworn statement he made to Cst. Furlotte on July 26, 2012, would go to determining the defendant's credibility.

[295] In particular, I find the defendant had contradicted what he had told Cst. Furlotte on July 26, 2012, about the road surface of the eastbound lanes of Bovaird Drive being wet when he testified at the trial that the road surface of those lanes had been dry. Furthermore, when confronted with the contradiction in his earlier statement to Cst. Furlotte, his testimony subsequently changed from the road surface being dry to the road surface possibly being wet. Moreover, the defendant had on several occasions acknowledged or stated to Cst. Furlotte that Bovaird Drive had been wet on July 26, 2012, yet testified at the trial that Bovaird Drive had been dry at the critical time. In addition, the defendant had acknowledged or had informed Cst. Furlotte that it had been drizzling, but now testifies in the trial that there had been no rain whatsoever on Bovaird Drive, and that when asked about telling Cst. Furlotte that it had been drizzling, the defendant had testified at the trial that he had meant or had been referring to it drizzling on the roads at the earlier part of his trip from home to the location of the accident on Bovaird Drive, and that he had not been referring to the drizzling rain occurring on Bovaird Drive. However, I do not find the defendant's explanation that he gave in his testimony at trial about telling Cst. Furlotte that it had been drizzling, that the defendant had actually been referring to the earlier part of his trip that morning and not specifically to Bovaird Drive, since it would not have been logical for Cst. Furlotte to be asking about the road conditions of other roads while Cst. Furlotte had been concerned with investigating what had happened on Bovaird Drive just west of Dixie Road and the reasons why the defendant's vehicle had rotated out of control on Bovaird Drive.

[296] Accordingly, I find the defendant to be an unreliable witness on account of the inconsistencies and contradictions in his testimony at trial and also on account of the inconsistencies and contradictions between what he had said in his unsworn statement to Cst. Furlotte on July 26, 2012, when his memory would have been fresher and more reliable, and what he had testified to at the trial. These inconsistencies and contradictions have diminished his credibility and the weight of his testimony in regards to the speed of his vehicle and in regards to the weather and road conditions on July 26, 2012, at the critical time. As such, for the circumstances, I do not find the defendant had been driving his vehicle at that critical moment with due care and attention or with reasonable consideration for other persons using the highway.

(2) Mistake Of Fact

[297] I did not see any evidence which could be used for a mistake of fact defence nor did the defendant rely heavily on a mistake of fact as part of a due diligence defence, except to say he had believed his brakes had been working properly. And, as I indicated earlier there is no evidence to conclude that the brakes on the defendant's vehicle had malfunctioned or had not been operating properly at the critical time.

(3) Has The Defendant Proven The Defence Of Due Diligence On A Balance Of Probabilities?

[298] The defendant has not met his burden of proving the defence of due diligence or proving that he was not negligent or not at fault in committing the prohibited act on a balance of probabilities. In other words, I find that he has not met his burden in proving that he had taken all reasonable steps for the circumstances to ensure that he had been driving with due care and attention or with reasonable consideration for other persons using the highway.

[299] Moreover, this case shows that speed and wet roads do not make for safe driving.

7. DISPOSITION

[300] Therefore, based on the totality of the evidence and the above reasons, I find that the Crown has proven beyond a reasonable doubt that the defendant, Mukesh Sonnilal, has committed the offence of "careless driving", contrary to s. 130 of the Highway Traffic Act, R.S.O 1990, c. H.8. A conviction will accordingly be entered against Mukesh Sonnilal.

Dated at the City of Brampton on February 28, 2014.

QUON J.P.

Ontario Court of Justice

IN THE MATTER OF THE HIGHWAY TRAFFIC ACT, R.S.O. 1990, c. H.8

Between

Ontario Court of Justice

Charge

Counsel

Cases Considered or Referred To

Statutes, Regulations and Rules Cited

Reference Material Cited

Exhibits Entered

1. INTRODUCTION

2. THE CHARGE

3. FACTUAL BACKGROUND

(a) ADMISSIONS OR AGREED FACTS

(B) ADDITIONAL BACKGROUND

(c) SUMMARY OF TESTIMONY

(1) Cst. PAUL AUJLA (the police officer who had arrived first at the accident scene)

(2) CHRIS DIMARTINO (licensed mechanic employed by the Peel Regional Police who had examined the defendant's vehicle after the accident)

(3) Constable Pupo (the accident reconstructionist who had been qualified in a voir dire to testify as an expert in the area of collision investigation and reconstruction)

(4) Mukesh Sonnilal, the defendant

4. APPLICABLE LAW

5. ISSUES

(A) Has the Crown proven beyond a reasonable doubt the actus reus of the offence?

(1) Has the Crown proven beyond a reasonable doubt that the defendant had either driven a motor vehicle on a highway without due care and attention or had driven a motor vehicle on a highway without reasonable consideration for other persons using the highway?

(2) Was the cause of the defendant's vehicle suddenly losing control, spinning clockwise, and going over the curb caused by a mechanical defect in the defendant's vehicle, specifically the brakes on the defendant's vehicle being defective or not working properly?

(3) Has the defendant made out the defence of explanation or the defence of inevitable accident to rebut any inference of negligence?

(4) Is the defendant's testimony credible about the road surface of the eastbound lanes of Bovaird Drive being dry at the critical moment?

(5) Is the defendant's testimony credible about the defendant not being in a rush to get to work on the morning of July 26, 2012?

(6) Would the defendant's vehicle losing control, spinning, and going over the curb have been reasonably foreseeable in the circumstances?

(1) Were there any factors or circumstances that would have affected the defendant's ability to drive with due care and attention or with reasonable consideration for other persons using the highway?

(2) Has the defendant proven on a balance of probabilities that his vehicle losing control, spinning, and going over the curb, had not resulted from his negligence or fault?

(3) In relying on the failure of the vehicle's brakes as the mechanical defect that precipitated the accident, could the defendant have been reasonably aware of any potential problem with the brakes or that the potential problem with the brakes would have been easily discovered or noticeable?

(4) In respect to the claim that the brakes on the defendant's vehicle had been faulty, had the defendant properly maintained his vehicle to ensure the vehicle had been in proper working order?

6. ANALYSIS

(A) FIRST STAGE OF THE INQUIRY FOR A STRICT LIABILITY OFFENCE: HAS THE PROSECUTION PROVEN THE ACTUS REUS OF THE OFFENCE BEYOND A REASONABLE DOUBT?

(1) The Fact That An Accident Involving A Motor Vehicle Had Occurred Is Not Necessarily Evidence Of Careless Driving

(2) Where A Vehicle Leaves The Roadway, Making An Inference Of Negligence Against The Defendant Will Depend On The Relevant Circumstances Of The Particular Case

(3) Relevant Circumstances Or Factors To Consider

(a) weather conditions

(b) lighting conditions on Bovaird Drive

(c) conditions of road surface

(d) traffic conditions

(e) nature of roadway

(f) speed of defendant's vehicle at critical time

(4) Had The Brakes On The Defendant's Vehicle Failed Suddenly At The Critical Time?

(5) Were The Eastbound Lanes Of Bovaird Drive Just Before Dixie Road Wet When The Defendant's Vehicle Lost Control And Abruptly Left The Roadway?

(6) Was The Defendant's Vehicle Travelling At A Slow Speed When The Defendant's Vehicle Went Out Of Control?

(7) Was The Speed Of The Defendant's Vehicle At The Critical Moment Reasonable And Prudent For The Weather And Road Conditions On Bovaird Drive?

(8) Is There Any Other Reasonable Explanation From The Evidence Of Why The Defendant's Vehicle Had Suddenly Went Out Of Control, Spun, And Went Over The Curb?

(9) Was It Reasonably Foreseeable That The Defendant's Vehicle Would Suddenly Go Out Of Control And Leave The Roadway When The Road Was Wet From A Recent Rainfall, If The Defendant's Vehicle Had Been Driven At A Speed That Was Not Appropriate Or Reasonable For A Wet Road Surface?

(10) Did The Prosecution Prove Beyond A Reasonable Doubt That The Defendant Has Committed the Actus Reus Of The Offence?

(C) SECOND STAGE OF THE INQUIRY FOR A STRICT LIABILITY OFFENCE: Has the defendant established the defence of due diligence on a balance of probabilities?

(1) The Defendant's Credibility

(2) Mistake Of Fact

(3) Has The Defendant Proven The Defence Of Due Diligence On A Balance Of Probabilities?

7. DISPOSITION

This Proceeding

Judge

Counsel

Parties

Areas of Law