R. v. Hubbs

Court Information

Court: Ontario Court of Justice

Location: Mississauga, Ontario

Judge: Quon J.P.

Date of Judgment: January 17, 2014

Revised: January 18, 2014

Parties

Prosecutor: Her Majesty The Queen

Defendant: David Hubbs

Counsel

For the Prosecution: A. Bruno, Provincial Prosecutor

For the Defendant: P. Sutton, Legal Representative

Trial Information

Charge: Section 130, Highway Traffic Act – "Careless Driving"

Trial Dates: November 30, 2012; February 14, 2013; March 26, 2013; August 30, 2013

Judgment Rendered: January 17, 2014

Cases Considered or Referred To

Statutes, Regulations and Rules Cited

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

Authorities Considered or Referred To

Archibald, T., Jull, K., and Roach, K. Regulatory And Corporate Liability: From Due Diligence To Risk Management (Aurora, Ontario: Canada Law Book Inc., 2007)
Merriam-Webster Online: Dictionary and Thesaurus, "road rage"

Exhibits Entered

Exhibit #1: One-page hand-drawn sketch made by prosecution witness Ivo Nikolov during his testimony, depicting the intersection of Aerowood Drive and Dixie Road in the City of Mississauga, indicating the position of Nikolov's truck, the defendant's Volvo truck, and Ashraf Mohammad's tractor-trailer in relation to the intersection, and the location where Ashraf Mohammad was first seen at the front of the defendant's Volvo truck. The movement of Ashraf Mohammad and the U-turn made by the defendant's Volvo truck are indicated with arrow lines.

Exhibit #2: Photograph of a sign dated 09/18/2011 taken by the defendant, David Hubbs, which indicates "Private Property, No Parking, 5455 Dixie Road, Unauthorized vehicles will be tagged and/or towed away at owner's expense" and which the defendant indicated is located approximately 100 yards east of the intersection.

Exhibit #3: Photograph taken approximately in March of 2013 by the defendant, David Hubbs, of the plate of the trailer, model no. 94253002, being used by the defendant on the date in question, indicating that it had been built on 10/1998.

Exhibit #4: Photograph of the intersection of Aerowood Drive and Dixie Road in the City of Mississauga obtained by the defendant, David Hubbs, from Google Maps, labelled page 1 of 1 with the heading "5455 dixie rd Mississauga", dated 2/13/2013, with copyright date indicated as 2013. The defendant drew symbols to indicate the location of the defendant's and Ashraf Mohammad's tractor-trailers when they had stopped and exited their respective vehicles (two rectangles); the location of the private property sign adjacent and north of the location of the two tractor-trailers (an oval); and the location of the gate that the defendant had used to exit the defendant's yard (an "X").

Exhibit #5: Photograph of the defendant's hands placed on top of a copy of the Toronto Sun newspaper dated September 15, 2011, taken by defendant's wife, Surena Wentzell, who testified she had taken the photograph on the morning of September 15, 2011.

1. INTRODUCTION

[1] The term "road rage" had been apparently coined in the United States in 1988 to describe the emotional response of a motorist who feels slighted by the driving behavior of another motorist and which can be manifested by dangerous or aggressive driving, altercations, or other violent conduct. Moreover, the term "road rage" is defined in the Merriam-Webster Online: Dictionary and Thesaurus, as "a motorist's uncontrolled anger that is usually provoked by another motorist's irritating act and is expressed in aggressive or violent behavior."

[2] For this particular proceeding, David Hubbs, the defendant, and Ashraf Mohammad, who are both professional transport truck drivers, had been involved with each other in what can be described as a "road rage" incident, while both had been driving their respective transport trucks and trailers. Their incident began in the early morning of September 15, 2011, at approximately 4:35 a.m. in the vicinity of the intersection of Aerowood Drive and Dixie Road in the City of Mississauga, when both of them became involved in a heated argument over each other's driving and attitudes, which subsequently led to the defendant being charged with assaulting Ashraf Mohammad and for allegedly committing the offence of careless driving, contrary to s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("H.T.A."). However, the criminal assault charge was withdrawn by the Crown after the defendant entered into a peace bond to keep away from Ashraf Mohammad, while the careless driving charge proceeded to trial and is the basis of this regulatory prosecution.

[3] Furthermore, for the careless driving charge, the prosecution contends that the defendant had driven in a careless manner on a highway in two ways: (1) in pushing Ashraf Mohammad into the intersection with his tractor-trailer while Mohammad had been standing in front of the defendant's tractor-trailer attempting to obtain the license plate number of the defendant's tractor-trailer and give it to the police during a 9-1-1 call, and (2) also as a result of the rear passenger-side of the defendant's trailer having collided with and damaging the front driver's side of Mohammad's truck while the defendant had been making a U-turn within the intersection of Aerowood Drive and Dixie Road.

[4] However, the defendant contends that he had not assaulted Ashraf Mohammad and only had a verbal conversation with him when they were both standing outside of their respective tractor-trailers and further denies that there been a collision between their respective tractor-trailers, and that when he had driven his tractor-trailer forward on two distinctive occasions with Mohammad standing in front of the defendant's truck, he had not been aware on the first occasion that Ashraf Mohammad had been standing immediately in front of the defendant's tractor-trailer, since he had assumed that Mohammad had returned to his own tractor-trailer after their verbal disagreement and it had not been until he had observed another driver signaling at him that he then observed Mohammad's hand above the hood of the defendant's truck; and that on the second occasion when he had noticed Mohammad's hand had disappeared from being above the hood of the defendant's truck that he had assumed that Mohammad was no longer in front of his tractor-trailer, even though he did not do anything to verify or check that his assumption had been correct, and had moved the truck forward again. However, Mohammad had still been in front of the defendant's truck, and when the defendant noticed once again that the other driver, who had signaled before, was still gesturing and pointing, the defendant once again noticed a hand above his hood, which then caused the defendant to immediately stop.

[5] The trial of the defendant's careless driving charge had been held over four days: November 30, 2012; February 14, March 26, and August 30, 2013. Five witnesses testified at the trial, which comprised of three witnesses for the prosecution and two witnesses for the defence, which included the defendant. After closing submissions were made, judgment was reserved and adjourned to January 17, 2014, for judgment to be rendered. These, therefore, are my written reasons for judgment:

2. THE CHARGE

[6] The defendant has been charged in a Part III information sworn on October 4, 2011, with the following careless driving offence:

David Hubbs, of [residential address and city removed for privacy], Ontario, on or about the 15th day of September 2011, at the City of Mississauga in the Central West Region did commit the offence of:

did unlawfully operate a motor vehicle, license number L514826 on a highway, namely on 5425 Dixie Road, carelessly contrary to the Highway Traffic Act, section 130.

3. BACKGROUND

[7] The intersection at Aerowood Drive and Dixie Road is located in the City of Mississauga and controlled by automatic traffic lights. On the date of the incident, Dixie Road had been comprised of three lanes northbound and three lanes southbound, while Aerowood Drive is comprised of one lane eastbound and one lane westbound. In addition, there are also designated left-turn lanes in each direction. The intersection is also illuminated by artificial lighting.

[8] In addition, it appears that a part of Aerowood Drive on the eastside of Dixie Road is a private roadway used to access yards where different trucking companies keep their trucks and trailers. There is also a private property sign (Exhibit #2) supposedly located approximately 100 meters east of the intersection on the northside of the roadway of Aerowood Drive.

[9] In addition, the exit for the defendant's yard is located on the southside of the roadway of Aerowood Drive on the eastside of Dixie Road. Furthermore, Ashraf Mohammad's yard is located east of the defendant's yard and Mohammad has to drive west along the private roadway that is known as Aerowood Drive to get to Dixie Road and has to pass the exit of the defendant's yard in order to get there.

[10] It also appears that tractor-trailers that exit from the defendant's yard have to face a blind spot as they turn westward onto the roadway of Aerowood Drive on the eastside of Dixie Road, such that a convex mirror had to be installed by the defendant's company so that other vehicles or trucks could be seen coming from the east of that exit.

[11] The defendant is also employed by TransForce and TransForce owns the defendant's yard.

[12] Furthermore, the person that had been observed by the defendant gesturing, signaling, or pointing was Ivo Nikolov, who had also been operating a Volvo transport truck that had been stopped in the southbound designated left-turn lane on Dixie Road waiting for a red light and who had the intention to turn left to go eastbound on Aerowood Drive in order to get to the yard located at the end of that road.

[13] In addition, there is no evidence that the weather on that day had been bad, so as to affect visibility.

[14] Both the defendant's and Ashraf Mohammad's yards are located on the east side of Dixie Road at Aerowood Drive. However, they do not share the same yards, but must use the same roadway to enter Dixie Road. The defendant's yard is owned by TransForce and is located just east of Dixie Road on the southside of Aerowood Drive while Ashraf Mohammad's yard is located east of the defendant's yard.

[15] In addition, both the defendant and Ashraf Mohammad were driving tractor-trailers. Just before their interaction, Ashraf Mohammad had just exited his yard and had been driving westbound toward Dixie Road on a private driveway when he had first exited his yard. As Mohammad approached the exit for the defendant's yard, which is located on the southside of Aerowood Drive approximately 100 meters east of the intersection, Mohammad had claimed that the defendant's tractor-trailer had been moving fast and had nearly cut him off and had come within 3 feet of Mohammad's truck, but because Mohammad had sped up he had been able to avoid a collision with the defendant's tractor-trailer. Mohammad then said he proceeded to the traffic light at the intersection of Aerowood Drive and Dixie Road and stopped before the intersection because of the red light he had been facing. Mohammad then testified that the defendant's tractor-trailer then pulled up alongside his stopped tractor-trailer and they exchanged words through their rolled-down windows. Mohammad then claims that the defendant had been swearing at Mohammad, which necessitated Mohammad swearing back at the defendant. He then claims that he observed the defendant exit his truck and walk over to Mohammad's truck and punch Mohammad's driver's side door. Then Mohammad exited his truck and they both continued with their verbal conversation outside of their respective trucks. And then while both of them were between their respective trailers, Mohammad claims the defendant grabbed him by his collar twice and on the last occasion of grabbing his collar, the defendant had struck Mohammad's chest in order to provoke a fight. However, Mohammad testified that he did not want to fight and tried to get away from the defendant to get the license plates on the defendant's truck and on his trailer. Mohammad also testified that after he had been physically struck by the defendant he had told the defendant that he was calling the police and the defendant responded that he did not care if Mohammad was going to call the police. The defendant then returned to his truck and attempted to leave, but Mohammad stood in front of the defendant's truck trying to get the license plate on the front of the defendant's truck, while also making a 9-1-1 call to the police and telling the defendant that he could not leave.

[16] While the defendant and Mohammad were interacting with each other, Ivo Nikolov had been stopped in the southbound turn lane on Dixie Road at Aerowood Drive on a red light intending to make a left turn to go east on Aerowood Drive to go his yard located on the east side of Dixie Road. Moreover, Nikolov had testified he had observed the defendant's truck moving forward in a jerky motion with a man on the front of the defendant's truck holding his hands up, while the man's back had been to the front of the grill of the defendant's truck and while the man was being pushed in the intersection for approximately the width of one lane of Dixie Road, where he then noticed the man move away from the front of the truck and go to the north of the truck while on Dixie Road. Then Nikolov said he observed the defendant's tractor-trailer make a U-turn in the intersection and return to the defendant's yard on the east side of Dixie Road.

[17] However, the defendant testified that he had exited his yard after he had completed a circle check of his tractor-trailer and had crossed the width of one lane to get onto the private roadway that goes west toward Dixie Road, when he said that Ashraf Mohammad's truck had suddenly come up on the right side of the defendant's tractor-trailer at a fast speed, and that when they had both stopped their vehicles in front of the private property sign located on the north side of the private roadway, which is located 100 meters east of the intersection, the defendant claims they got into a verbal conversation through their windows that were rolled down. The defendant also described Ashraf Mohammad as the aggressor, who had been swearing at the defendant and calling him disparaging names, and who had exited his vehicle first. After they both were out of their vehicles, the defendant said both of them had walked around and between their respective tractor-trailers, so that the defendant could check over his tractor-trailer. Then the defendant said he had re-entered his truck because at that time he had believed their conversation had been over and that Mohammad had returned to Mohammad's own truck. The defendant then said he put his truck in gear and proceeded forward when he observed another driver in the southbound turning lane pointing out his window, at which point he observed a hand appear above the top of the front of his six-foot high hood that also has a bug deflector that is about four inches in height and sits above his front hood. The defendant also testified that he did not know someone had been at the front of his truck, since he had believed that Mohammad had returned to Mohammad's truck. However, after he had observed the hand, the defendant said he immediately stopped his truck and then when the hand disappeared and had been no longer visible above his truck's hood, he assumed that the person was no longer in front of the defendant's truck, so he decided to proceed forward again, and once again he observed the man in the southbound turn lane pointing out the window, and then the defendant again observed the hand appear above his truck's hood, which made the defendant immediately stop his truck. After the hand disappeared again, the defendant said he then proceeded forward and decided to make a U-turn and return to his yard, so that he could get his supervisor to deal with the situation, as he did not want to get into a confrontation and had been trained to not get into any confrontations. The defendant also testified that his trailer did not collide with Mohammad's truck. In addition, the defendant testified he had not aware that the police were going to be there, until he and his supervisor walked out of their gate and had observed the police there.

[18] After Ashraf Mohammad had called 9-1-1, police officers from the Peel Region Police arrived at 5:20 a.m. at the intersection of Aerowood Drive and Dixie Road and investigated the 9-1-1 call the police had received at 5:18 a.m.

[19] After witnesses were interviewed and the investigation had been completed, the defendant was charged with committing the criminal offence of assault and the regulatory offence of "careless driving", contrary to s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8.

[20] The criminal assault charge was subsequently withdrawn by the Crown after the defendant had entered into a peace bond to stay away from Ashraf Mohammad.

[21] As for the careless driving charge, the defendant was served with a summons on September 15, 2011, to appear in court on October 18, 2011, and a Part III information was subsequently sworn and the summons confirmed on October 4, 2011. The trial of the careless driving charge then took four separate days to complete, which were held on November 30, 2012, and on February 14, March 26, and August 30, 2013. After submissions were made, judgment was reserved and adjourned to January 17, 2014, for the judgment to be rendered.

4. THE EVIDENCE

(A) PROSECUTION WITNESSES

(1) Summary of Ashraf Mohammad's Testimony

(Transport truck driver involved in the altercation with the defendant)

[22] Ashraf Mohammad testified that he does not recall the actual date of the incident with the defendant who had been charged with careless driving, but recalls that it was early in the day, at about 4:30 or five o'clock in the morning. However, he did recall that the incident had happened on a roadway at the Dixie and 401 truck yard in Mississauga.

[23] In describing the incident between him and the defendant, Mohammad said that on that day he had been driving a tractor-and-trailer motor vehicle out of his company yard and heading westbound on "Aerowood Road" toward the Aerowood stop at Dixie. Moreover, Mohammad said he had not been on Aerowood, but had been on a private roadway for the truck yard or a private truck yard driveway heading to Dixie, which he also said could be called "Aerowood Road".

[24] Furthermore, Mohammad said that when he had almost reached the traffic light at Dixie, a tractor–trailer driven by the defendant had pulled out very fast from the driveway for the defendant's yard and had tried to cut Mohammad off. He also said that he could not stop since he had a very heavy load. In addition, he explained that the exit for the defendant's yard had been right by the entrance to Dixie, which he also indicated is a different yard from his own company yard. He also indicated that the defendant's yard had been right beside his own company yard. In addition, Mohammad said that his own company yard had been located at the end of the road at the back, while the defendant's yard is located on the corner on the right side closer to the main road, and which is about 200 to 300 meters.

[25] Mohammad also said he had been almost 70 percent pass the exit for the defendant's yard's, which had been where the tractor–trailer driven by the defendant had been coming from, when the defendant's truck had come within three feet of his own truck, but because Mohammad had been able to speed up a little bit more towards the traffic light he had been able to avoid having an accident.

[26] Moreover, when asked whether in his initial statement he had stated that, "He cut me off", Mohammad clarified that the defendant had "almost cut Mohammad off", but that he did not give the defendant a chance to because Mohammad had sped up. Mohammad then reiterated that the defendant had been very, very close to Mohammad's tractor, with not even a three-foot gap left between them, so Mohammad felt he had no choice but to speed up right to the traffic light.

[27] In addition, Mohammad said that his brakes were working that day, but that he did not slow down, as Mohammad had been certain that the defendant would hit Mohammad's truck based on the defendant coming fast.

[28] Mohammad also said he had driven to the stoplight for Dixie and Aerowood and that it had been showing a red light. Moreover, he said that when he had reached the stop light he stopped his truck. He then said the defendant's truck pulled up beside Mohammad's tractor-trailer, to Mohammad's left. To clarify, Mohammad said that Mohammad's tractor-trailer was on the right side, while the defendant's tractor-trailer was on the left side.

[29] Furthermore, Mohammad said that when the two tractor-trailers were beside each other, he then rolled downed his window and wanted to just say to the defendant, "I mean you're a truck driver and you know what you're doing." Mohammad then said the defendant rolled down his window and start swearing at Mohammad. Moreover, because the defendant had been swearing at him, Mohammad said he then lost his patience and swore back at the defendant. Then Mohammad said the defendant exited the truck through the driver's side door and then came around the defendant's own tractor-trailer and then approached Mohammad's tractor-trailer and punched the driver's door of Mohammad's tractor.

[30] Mohammad said he then exited his truck and when he was outside of his truck, Mohammad said the defendant then grabbed him by the collar and pulled him towards the defendant. Then, Mohammad said he told the defendant, "You're hurting me." He then said the defendant responded by stating, "I'm going to hit you, I'm going to fight with you." Mohammad then replied to the defendant, "Okay". Mohammad then said he walked around, but could not catch the licence plate from the front of the defendant's vehicle.

[31] In addition, Mohammad said that because the defendant had been standing right beside Mohammad, he said he became scared and had tried to get away from the defendant and go to the back of the defendant's trailer in order to read its licence plate. However, when Mohammad tried to go to the back he said the defendant grabbed him again and punched Mohammad's chest and said to Mohammad, "Go ahead, I started." However, Mohammad said the punch was not very hard and Mohammad had remained standing after he had been punched by the defendant. Mohammad also said he had believed the defendant had punched him in order to start a fight with him.

[32] After receiving the punch from the defendant, Mohammad said he replied to the defendant, "I don't want to start it, it's too early. I don't want to start a fight with you." Mohammad then said he tried to run away from the defendant so that he could catch the defendant's licence plate, but Mohammad said he was not successful because the defendant had been around him.

[33] Then Mohammad said the defendant ran back to his truck and sat in the driver's seat and then wanted to take off from there. However, Mohammad said he had still wanted to quickly get the licence plate of the defendant's truck before the defendant ran away, so Mohammad said he then went to the front of the defendant's truck to try to read the licence plate.

[34] In addition, Mohammad said that when the defendant had been going back to his seat Mohammad had told the defendant, "I'm going to call the police, 9-1-1, you have to stay, you can't leave, you have to hold, stay here." However, Mohammad said the defendant did not listen to Mohammad and kept swearing at Mohammad, and then the defendant went back in his truck and said to Mohammad, "I don't care, go ahead do it, call the police."

[35] Then Mohammad said he did call the police while he been still outside of his own vehicle. Then after he had dialed 9-1-1, Mohammad said the police were on the line. Then, while he was still trying to read the licence plate while standing in front of the defendant's truck, Mohammad said the defendant started driving, which made him scared because he did not know which way the defendant was going to drive.

[36] Mohammad then identified the other driver, who had punched him, as the defendant in the courtroom. However, Mohammad said he did not recall the defendant's name at that moment, but said he had it written down.

[37] Furthermore, Mohammad said he had been trying to read the defendant's licence plate while the defendant had been going back to the defendant's seat. However, even though Mohammad had said that his intention had been to read the licence plate, he said the defendant had quickly started his truck and tried to drive off. Mohammad further said that when the defendant had tried to drive off, it made Mohammad scared, since Mohammad did not know whether he should go to the left or go to the right, as he did not know which way the defendant would be turning. However, Mohammad said that despite the whole intersection being on hold or stopped, as well as being blocked, Mohammad said the defendant still did not stop, but kept turning. Then the defendant said another driver had blocked the defendant off totally, in order to prevent the defendant from leaving or getting out of the intersection. Mohammad then said the defendant had stopped for a second, which then allowed Mohammad to get away from the front of the defendant's truck. Then Mohammad said the defendant had made a quick U-turn and then drove back to the defendant's yard. In addition, Mohammad said that in the course of the defendant making the U-turn the defendant's vehicle had damaged the left side of Mohammad's tractor around the front of the tire and fender and had also broken the driver's side mirror.

[38] In addition, Mohammad said that he had been on the phone at the same time he had been reading the defendant's licence plate, but because Mohammad did not have a pen, it had been his intention to write the defendant's numbers on his cell phone, since he could not remember those numbers that quickly. Moreover, he also said he had wanted to give the license plate number to the police when he had been on the phone with them.

[39] Mohammad also said that when the defendant's vehicle had begun to move in a forward motion he said he had been standing outside in front of the defendant's truck trying to read the license plate. Moreover, Mohammad said that because the defendant's truck had started so quickly he is certain that the defendant's truck had been already running, since the headlights had been on and that the defendant had just gotten into the seat and put it into gear, and started the truck rolling.

[40] Moreover, Mohammad that when he had been standing in front of the defendant's truck he had begun to read the licence plate, but the defendant's truck had begun to move forward and scared Mohammad. Furthermore, Mohammad said that he had been scared because he did not know if the defendant would be making a left turn or right turn. Mohammad also said he did not even have a chance to run around because the defendant's vehicle was a big tractor-trailer. However, Mohammad said the defendant had stopped his truck for a second, which gave Mohammad a chance to get away from the front of the truck and move to the right and towards Mohammad's own vehicle. At that point, Mohammad said two other drivers who were on Dixie had blocked the defendant in the intersection, so that the defendant could not get away. He also said that one of them had been facing southbound while the other one had been facing northbound towards the 401.

[41] Then Mohammad said the defendant quickly make a very sharp U-turn in the intersection and then went back to the defendant's yard. Moreover, while the defendant was making the U-turn, Mohammad said that he is certain that the passenger-side or right side of the corner of the defendant's trailer had struck Mohammad's vehicle that had been standing in the right lane of the driveway at the traffic light at Dixie.

[42] Furthermore, Mohammad said that he is certain that it had been the same individual that had been driving the defendant's vehicle at all times.

[43] Moreover, Mohammad said that when the defendant's transport truck had begun its forward motion it had been facing towards the west, which had also been the same direction that Mohammad had been heading. Mohammad also said he had intended to make a right turn at the traffic light at Dixie in order to take the 401. In addition, Mohammad said he is certain that the defendant had also wanted to do the same thing.

[44] Mohammad also said that when the defendant had moved his vehicle forward the defendant's vehicle had been on Aerowood and Dixie, in the intersection.

[45] In addition, Mohammad said the traffic light for him had been red and that he had been stopped there. Furthermore, Mohammad said the light had turned green and red many times while he had been waiting for the police to arrive. He also said that initially the light had been red when he had first stopped at the intersection. In addition, Mohammad said that his own vehicle had been stopped for about 20 minutes to half an hour. He also said that his vehicle had been on, but that it automatically shuts off, even though the headlights and everything had still been on.

[46] Mohammad also confirmed that it had been his understanding that the roadway was a private roadway. He also said that when he had pulled up to the intersection and stopped for the red light that he had stopped before the solid white line for pedestrians. Moreover, he confirmed that the defendant had pulled up beside him to his left and that there was not even three feet between the two trucks parked side by side or possibly even less than that. Mohammad also said that he had walked between the two trailers parked beside each other. Mohammad also confirmed that he had given a statement to Officer Glaab and that Officer Glaab had possibly misunderstood what Mohammad had said because Mohammad said the defendant had not hit him on the face, but had hit him on the chest. Furthermore, Mohammad said that the first time that the defendant had grabbed Mohammad by the collar had been when Mohammad had been at the back of the defendant's trailer trying to take down its licence plate. And, for the second time the defendant had grabbed him by the collar had been when the defendant had put him between the trailers and hit Mohammad in the chest and said he had wanted to fight with Mohammad. However, Mohammad said he did not sustain any injuries from the defendant's punch because it had not been very hard.

[47] In addition, Mohammad said that he when he had been in his truck by the traffic light it had been standing on the right side of the roadway. He also said there are two tracks, but because of the construction going on at that time there had been no lines. He also said that one track had been for going straight or for making a right turn while the other track had been just for making a left turn. However, he said that for the left turn there had been an arrow and lines. Furthermore, he said he had been standing at the right in order to make a right turn for the 401 at Dixie, while the defendant had been parked beside him. In addition, Mohammad said that when all the argument and everything had been done, the defendant had made a U-turn in the intersection. He then clarified that since all the vehicles at that time had been stopped because of what the defendant had been doing, he remembers that nobody was moving. In addition, Mohammad said the defendant made a U-turn from the middle of the intersection, but that he could not say whether it had been during a green light, red light, or whatever because Mohammad had not been paying any attention at that time to the light. Furthermore, Mohammad said the defendant had made a U-turn and then went back to the defendant's yard.

[48] Mohammad also described that the defendant had driven left, then tried to steer a little bit, and then made a left U-turn to go back to his yard.

[49] Furthermore, as for the two transports that had blocked the intersection, Mohammad said that one transport had been facing towards the north and had had moved to the far right lane and then had moved to the left a little bit to stop it, while for the other transport, Mohammad had said that he had been certain that it had been facing towards the south and had blocked the defendant because it had been on the other side of the roadway and as the road is a one-way road and it had pulled ahead to block it so the defendant could not run away.

[50] Mohammad also said he is about 5'-3½" tall.

[51] In addition, Mohammad said the defendant had been driving a white model truck that was a Volvo with a white trailer. However, he said he cannot remember the company name, but that it had a blue and red logo on it. He also said the truck had a nose on it. In addition, he said the height of the hood for the Volvo truck from the ground to the hood was roughly five to six feet, but he had never measured it. However, Mohammad said he is certain that if he were standing in front of the hood that the defendant sitting in the truck would see Mohammad standing there, especially for a Volvo truck. He also agreed with the suggestion that the distance from the ground to the top of the hood is approximately five feet to six feet, since different trucks have different heights.

[52] Mohammad further said that the type of truck he had been driving that day had been a Kenworth truck from a Quebec rental company named Eureka.

[53] In addition, Mohammad said he has been driving a truck for about 11 years.

[54] Mohammad also said that when he had been attempting to write down the licence plate he said he had not been doing any types of motions towards the defendant's vehicle, but was simply saying, "I'm on the phone, I'm calling to the 9-1-1, and you have to stay, you can't leave." However, Mohammad said that the defendant had kept swearing on his way towards his truck.

[55] Furthermore, Mohammad said that when he had been taking the defendant's licence plate he had been on the phone reading and looking at the defendant's licence plate and standing right in the front and center of the defendant's truck. Mohammad also said that he had been holding the cellphone in his right hand. In addition, Mohammad had said that he had not been yelling at the defendant at that time as Mohammad had already been punched by the defendant and had already stopped yelling at the defendant.

(2) Summary of Ivo Nikolov's Testimony

(Driver of transport truck that was southbound on Dixie Road in the left-turn lane intending to turn east onto Aerowood Drive)

[56] Ivo Nikolov testified that he remembers the day of the incident as being September 15, 2011, which he said had been a long time ago. He also said he recalls the incident had occurred in the morning between 5:00 to 5:30. In addition, he said he had been stopped on a red light going south on Dixie Road, at the junction of Aerowood, where he had been intending to make a left turn to go to the yard there, which his company uses to dock their trailers.

[57] While Nikolov had been stopped for the red light, he said that when he had turned to his left he had observed through his left window a man on the front nose of a truck that had been moving inside the intersection. He also said there had been nothing to block his view when he turned and looked to his left. Moreover, he said that his window might have been rolled down about halfway. In addition, he said that the man at the front of the truck had both his arms raised above his head and that the truck had been pushing the man inside the intersection.

[58] In addition, Nikolov said the guy who had been on the front of the truck then went to his right, which would be north on Dixie, while the guy driving the truck that had been pushing the guy made a U-turn inside the intersection and then went back inside his yard.

[59] Nikolov then wanted to draw on a blank piece of paper the positions of the trucks he had observed and where those trucks went, which was then entered as Exhibit #1. After being given a blank piece of paper, he then diagrammed and described what he had observed. He first said he had been waiting to make a left turn when he had observed the most southerly of the two trucks that were heading west pushing inside the intersection the man holding his hands held up, to the halfway or more than halfway point of Dixie Road. However, the point on Dixie Road that Nikolov had indicated on his diagram of where the man had been pushed to by the defendant's truck had only been in the northbound lanes of Dixie Road. Specifically, Nikolov had drawn arrow lines on his diagram to indicate the westerly direction of the path of the man who had been pushed into the intersection and then drew a northbound arrow line at the end of the westbound arrow line to indicate the man had then proceeded to walk north while in the most westerly of the two northbound lanes of Dixie Road that Nikolov had drawn in his diagram. Therefore, although Nikolov had testified that the man had been pushed to the halfway or more than halfway point of Dixie Road, he had specifically drawn on his diagram an arrow going westbound in the intersection to indicate the man had only been pushed to the most westerly of the two northbound lanes of Dixie Road.

[60] Furthermore, Nikolov testified he believed the truck pushing the man had been a white-coloured Volvo truck with a bug deflector. He also said the defendant's truck had been a new model with a shiny grill. In addition, he said the man standing outside the truck had then walked to the north and that the truck that had been pushing the man then made the U-turn and went inside his yard again.

[61] Nikolov also drew a line to represent a barrier and a rectangle to represent the Bond Shed where Canada Customs is located on his diagram. He had placed the Bond Shed on the southside of Aerowood Drive on the east side of Dixie Road Then Nikolov said that after that truck had gone back inside the yard, he himself went on his way and went straight to his own yard which is located towards the end. He then marked on his diagram where he had been positioned and where the incident he observed had occurred.

[62] In addition, Nikolov drew a rectangle and labelled it with the word "Volvo" to indicate the location of the defendant's truck. He also drew a small oblong-shaped object just west of the Volvo to represent the man he had observed being pushed by the Volvo truck. Furthermore, he drew a longer rectangle to the north of the Volvo rectangle and labelled the longer rectangle with the words, "Truck Trailer", to represent Ashraf Mohammad's tractor-trailer. In addition, he drew a rectangle in the southbound lane of Dixie Road making a left turn to go east on Aerowood Drive and labelled it with the initials, "I.N." to represent where he had been in the intersection. He also drew an arrow depicting the path of the U-turn made by the Volvo truck.

[63] In addition, Nikolov said he had good visibility from his window. He also said he did not hear anything, but it had been obvious for him to notice the incident. Moreover, he said there had been a truck beside Nikolov that had stopped and honked its horn. He also said that at the beginning it had looked like a joke, but then in the next two to three seconds he realized that it had been very unusual, and when he turned around again he said to himself, "What the hell is that, a man on the front of the truck pushing."

[64] Nikolov also said there had been no distance between the front of the truck and the person who had been outside the truck with his hands held up, but that the grill of the truck had been right on the person's back.

[65] In addition, Nikolov said the truck had pushed the man holding his hands up approximately 12 to 15 feet, which is the distance of the width of one lane of traffic. He also said he had first noticed the man getting pushed when Nikolov had been waiting during the red light. He also said the man's hands were up when he was being pushed.

[66] Nikolov also said that he had first noticed the truck coming from the usual spot in the yard where there are many trucks and where trucking companies park their trailers. Moreover, because the nose of the truck is high, Nikolov said he had hoped that the driver of the truck could see the guy in front when the guy had put his hands up. Nikolov also said he believed the man had put his hands up so that the driver would see him. However, Nikolov said the truck kept pushing the man despite the man's hands being held up.

[67] In addition, Nikolov said that after the truck made the U-turn, the man who had put his hands up had been standing at the northeast corner of Dixie and Aerowood, on the side in which he would make a right turn for Dixie. Nikolov then said that after the defendant's truck had made the U-turn it went back inside the yard, while Nikolov then proceeded to his own yard, which is a little bit further along the road.

[68] And, when asked if he recalled who had been driving the white Volvo truck, Nikolov identified the defendant in the courtroom as the driver. Nikolov also said he did not know either the driver or the man he observed being pushed by the Volvo truck or that he had any dealings with either of them previously.

[69] In addition, Nikolov said he had been driving a truck since the year 2000. Moreover, Nikolov said he is 173 cm. tall [5'-8"]. He also said he has driven a Volvo truck before, as the truck that he drives is also a Volvo truck. However, Nikolov said that his truck is a highway truck. He also said the difference between his truck and the Volvo truck doing the pushing, is that the Volvo truck is a day cab, since there had been no sleeper bed behind the defendant, which Nikolov added would make the defendant's Volvo truck more maneuverable and designed for city work.

[70] Furthermore, Nikolov said the front nose of that Volvo truck would be at upper chest level.

[71] Nikolov also said the whole incident regarding the pushing lasted no more than 45 seconds to a minute and that the time for the truck to make a U-turn had been another 20 to 30 seconds, so that the total time of pushing and making the U-turn would be about a minute and a half.

[72] In addition, when asked to approximate how fast the truck pushing the man had been moving and whether the defendant's truck had been moving in one continuous motion or slowly moving in several different motions, Nikolov said the truck had been pushing somewhat like driving a car with a clutch and releasing the clutch, and it had been like a push, push, push motion while the guy runs in front. He also said the truck could not push too fast because the truck would otherwise run over the man in front. Moreover, he said the speed at which the truck had been going was about the speed of a man walking normally, which he estimated would be five to six kilometers per hour, and which he agreed would be the walking speed of a human being.

(3) Summary of Officer Bart Dabrowa's Testimony

[73] Officer Dabrowa testified that on Wednesday, September 15, 2011, he had been operating a fully marked police cruiser and working the night shift from 7:00 p.m. to 7:00 a.m. in the City of Mississauga, in the Region of Peel.

[74] Furthermore, Officer Dabrowa said he had received a call at 5:18 a.m. for service, in relation to an assault occurring at the intersection of Aerowood Drive and Dixie Road in the City of Mississauga. He also said he had recorded in his notes that he had arrived at that intersection at 5:20 a.m., where he had been greeted by a male who had identified himself as Ashraf Mohammad, and who had further identified himself with a valid Ontario digitized driver's licence.

[75] In addition, Officer Dabrowa said that he had identified Ashraf Mohammad as one of the drivers involved in the collision that had occurred at that intersection. Officer Dabrowa also said he had spoken with Mohammad and two other witnesses, which were identified as Ivo Nikolov and Bashir Rashid. He also said they had advised him that a collision had occurred at that intersection involving the defendant, David Hubbs. Furthermore, he said he had been advised that the defendant was not at the scene at that time and that the defendant had made a U-turn from westbound Aerowood Drive onto Dixie Road. In addition, Officer Dabrowa said the defendant had entered onto an Ontario roadway prescribed by the Highway Traffic Act and then completed the U-turn so as to go back eastbound onto Aerowood Drive. Moreover, Officer Dabrowa said he had been advised, as a result of this maneuver, that the rear passenger-side of the trailer of the tractor-trailer, which had been operated by the defendant, had struck the driver's front sideview mirror and fender of Ashraf Mohammad's truck.

[76] Officer Dabrowa then said the defendant had returned with his truck and trailer a short time afterward, whereby Mohammad and the other two witnesses then pointed out the defendant to Officer Dabrowa. Dabrowa then said he immediately arrested the defendant for assault. He also said he then handcuffed the defendant, searched the defendant incident to arrest, and then placed the defendant in the rear of Dabrowa's police cruiser, and also cautioned and read the defendant his rights to counsel.

[77] In addition, Officer Dabrowa said the defendant had been operating a 2008 Volvo truck, white in colour, which was bearing a Quebec licence plate number of L483824, and which had a Cabano-Kingsway trailer attached to that tractor that also had a Quebec licence plate number of RZ1441.

[78] Officer Dabrowa then said he continued with his investigation, and further said that he had noticed and observed the front driver's side-view mirror of Mohammad's truck to be smashed. He also said he had observed a dent on the driver's side fender of Mohammad's truck, which was approximately one meter in length and six centimeters in width. Dabrowa also said that Mohammad's truck was a 2006 Peterbilt Con truck, white in colour, bearing Quebec licence plate number L514826 with a Frontenac Express Inc. trailer attached to the tractor that was bearing Quebec licence plate number RT14447. In addition, Dabrowa said he had observed scratches.

[79] In addition, Officer Dabrowa said he does not remember how far off the ground the dent had been that he had observed on the fender of the front driver's side body portion of Mohammad's tractor, nor did he measure it.

[80] Furthermore, Officer Dabrowa said that from his recollection the mirror, which had been damaged, was the one that drivers use to check out the driver's side rear portion of the truck or of the roadway. And, as for the location of that mirror on Mohammad's Peterbilt truck, Officer Dabrowa said he believes the mirror had been attached to the driver's door or just beside it, to the body of the tractor.

[81] Moreover, Officer Dabrowa said he had observed damage to the defendant's trailer, which was a Cabano-Kingsway trailer, and that the trailer had been damaged at the rear passenger-side of the trailer. In addition, he said he did not observe any other damage to the defendant's trailer, except for the damage to the rear passenger-side of the trailer. However, Dabrowa said that he did not make any notes in regards to the age of the trailer, nor did he measure the damage that was done to the rear of the trailer from the ground.

[82] Furthermore, Officer Dabrowa said he believes that the damage to the defendant's vehicle had occurred in the midst of the defendant making a U-turn, such that the rear portion of the defendant's trailer on the passenger side had collided with the driver's side mirror at the front of the tractor and that it had also caused the dent to the vehicle driven by Mohammad.

[83] Moreover, Officer Dabrowa said he had reasoned that these scratches on the passenger-side rear portion of the defendant's trailer were consistent with a sideswipe that had occurring during the U-turn committed by the defendant, as had been described by Mohammad and the other two witnesses. And, consequently, Dabrowa said he had determined that the damages to both the defendant's trailer and Mohammad's truck had been in excess of $1,000 and that the collision had occurred on the roadway. And, as a result, he said he had additionally charged the defendant, David Hubbs, with careless driving and then served him with a Part III summons. Officer Dabrowa also said the defendant had been released at the scene with an appearance notice for the assault charge and the Part III summons for the careless driving charge, with the same court dates.

[84] In addition, Officer Dabrowa said the defendant had identified himself to Dabrowa with an Ontario driver's licence with a photo on it and that he had been satisfied that the photo had matched the individual he had been speaking to. Officer Dabrowa then identified and pointed to David Hubbs, the defendant sitting in the courtroom, as the individual he had been speaking to that day. Moreover, Dabrowa said that when the defendant had returned to the scene, the witnesses that he had been speaking to had physically pointed to the defendant as being the other driver involved. Also, based on his investigation, Dabrowa said he had been satisfied based on the totality of everything that that the defendant had been the other driver involved with Mohammad, and that based on his observations of the damage to the defendant's vehicle and the witnesses' accounts, the vehicle involved in the collision with Ashraf Mohammad's vehicle had been the defendant's vehicle.

[85] Furthermore, Officer Dabrowa said Dixie Road is comprised of three marked lanes northbound and three marked lanes southbound, as well as turning lanes in all four directions. Dabrowa also said he believes the speed limit for Dixie Road is a posted maximum of 70 kilometers an hour. As for Aerowood, he said he believes it is one lane going eastbound and one lane going westbound, which are unmarked lanes. He also said he believes the speed limit for Aerowood is a posted 50 kilometers per hour.

[86] Moreover, Officer Dabrowa said there were traffic lights at each point of the intersection and that there was artificial lighting illuminating the intersection at the time in question. In addition, he said the intersection had been well lit and that he had observed two or three cycles of the traffic lights and that they had appeared to be functioning normally.

[87] In addition, Officer Dabrowa said that when he had arrived at the scene he had observed Ashraf Mohammad's truck and trailer standing in the westbound Aerowood curb lane and not on Dixie Road at all. Moreover, he said that the defendant's vehicle had left prior to Officer Dabrowa's arrival.

[88] Officer Dabrowa also acknowledged speaking to the defendant and does not have any recollection about any injuries to the defendant, nor did he observe any injuries to Ashraf Mohammad either. In addition, Dabrowa said that when he had asked Ashraf Mohammad if medical attention had been required, Mohammad did not say he required medical attention. Moreover, Dabrowa said that an ambulance had not been called.

[89] In addition, Officer Dabrowa said the defendant had been charged with a criminal offence, namely an assault, contrary to s. 266 of the Criminal Code of Canada, as well as being charged with careless driving. And, when he had last checked on CPIC, he said the disposition of the criminal charge had been a peace bond.

[90] Furthermore, Officer Dabrowa said he had made a drawing of the scene in the motor vehicle collision report that he had completed afterwards.

(B) DEFENCE WITNESSES

(4) Summary of the Defendant David Hubbs's Testimony

[91] The defendant testified that on the morning in question he had been pulling out of his yard and had just started to come out of the gate when another driver (Ashraf Mohammad) had come up his right side and scared the defendant, as the defendant had not seen him because the other driver had raced up and kind of cut the defendant off. Then the defendant said the other driver had screamed at the defendant, at which time the defendant said he had rolled down his window. In addition, the defendant said the other driver had been calling the defendant names. The defendant then said to the other driver, "If I had seen you I would have let you through. It doesn't matter to me, I'm getting paid by the hour." However, the defendant said the other driver kept calling the defendant names, "F this, you F'ing pig. I'm tired of this." Moreover, the defendant said the other driver then got out of his truck and came over to the defendant's side, to the left of the defendant.

[92] And, when the other driver was standing beside the defendant's truck, the defendant said he then got out of his truck and again said to the other driver, "It doesn't matter to me who gets to the light, I'm getting paid by the hour." However, the defendant said the other driver just kept calling the defendant names.

[93] The defendant then said he went down the side of his truck, and then both the other driver and he began walking between their respective trucks and trailers. Then the defendant said he proceeded to the front of his truck and then got back into his tractor.

[94] Furthermore, the defendant said he then started driving forward, and at that point, he said there had been a gentleman southbound on Dixie Road who kept pointing out of his window with his left hand. At which point, the defendant said he got onto his "CB" and said, "What's, what's the matter driver?" However, the defendant said he received no answer, so the defendant said he then started to pull forward, and when he looked over again, he said the southbound driver started with the hand motions again. Then the defendant said he looked up over the hood of his truck and observed a hand between the bug deflector that is on his hood. He then described the bug deflector as going from the left side to the right side and with a little opening to allow the opening of the hood. He also said that when he saw the hand he had stopped, but then the hand had disappeared, so the defendant said he had thought that Mohammad had moved back to his tractor. At that point, the defendant said he then put his truck back into first gear and started moving again when he saw the gentleman driving the southbound vehicle begin pointing again out the window. The defendant said he then looked over and observed the hand again, and so the defendant said he immediately stopped. Then the defendant said the person with the hand disappeared, so the defendant said he then pulled out, did a U-turn, and went back to his yard.

[95] When he got back into his yard, the defendant said he went to his supervisor and told his supervisor that he had a problem out front. The defendant then said he drove his tractor and trailer down to the gate and waited for his supervisor to come out. In addition, he said his tractor is numbered 248027 and is the defendant's regular tractor. He then said that he and his supervisor walked out of the gate, where he said there had been something like six police cars there.

[96] The defendant then said that Officer Dabrowa come up to him and said, "Are you a part of this?" The defendant then thinks he replied, "I've come back with my supervisor."

[97] In addition, the defendant then said that the officer had asked, "Do you have any weapons on you?", for which the defendant replied, "I only have a small pen knife." The defendant then said that the officer told him to put all his stuff on the hood and sit in the car. However, the defendant told the officer that he would be unable to sit, but could lie down instead because of his injuries. He also informed the officer about having an artificial hip and problems with his left leg. The defendant then said the officer opened the door and the defendant said he then laid in the car.

[98] Then about five seconds later, the defendant said the officer grabbed the defendant's wallet and started looking through his wallet. He also said the officer took everything out, including his Visa cards, his licence, and even the pictures of his kids. And while the defendant was laying there, he said the officer got back in to the car and said, "Why the F did you beat the hell out of him?" However, the defendant replied, "I never touched him, I never touched him." Then the defendant said the officer said, "Yes, you did." The defendant then said, "No, I didn't, it's impossible." Then he said the officer said, "Do you think I F'in need this at the end of my shift?" To that, the defendant said he replied, "I, I don't know what's going on, I don't."

[99] In addition, the defendant said to the officer, "I went back and got my supervisor." But the defendant said the officer repeated, "You beat the F'in hell out of him." Then the defendant said, "No, I didn't", and tried to explain to the officer that it was impossible, but remarked that the officer would not listen to him. The defendant then said the officer repeated, "You, you F'in beat him." The defendant said he then responded, "Look at my hands. Do you see anything on my hands?" Then the defendant said the officer told him, "Put those hands back through the window," and then the officer slammed the window, which was between the front and the back. Then the defendant said the officer started writing out a ticket and further informed the defendant, "You're going to need a lawyer, okay. This is how it works."

[100] The defendant said he then responded, "I have a lot of friends that are retired police officers, I know how, how it's going to work." The defendant then said the officer replied, "If you think you've got F'in friends that's going to F'in influence me, I got news". The defendant then said, "I'm not trying to influence you at all. Fine, I'll just, I'll go get a lawyer." At that point, the defendant said the officer handed him the ticket, and said, "It's the end of the shift, I'm not going to take you." The defendant then thanked the officer. Then the defendant said a car pulled up and the defendant said he heard someone say, "Charge him with careless." The defendant then said the officer had asked, "Can I do that?" The answer to the officer's question that the defendant recalled had been, "Yeah, charge him with careless, see what happens, that's what the court's for." At that point, the defendant said he never spoke another word. The defendant then said the officer wrote out another ticket for careless driving and told the defendant, "You're going to need a lawyer." After that, the defendant said the officer then let the defendant out of the car. He also said that the defendant's supervisor and the officer had to help him get out of the backseat because of his injuries.

[101] In addition, the defendant said that while he had been in the police car, the gentleman that had accused him had come up and had asked the officer, "Can I go now?", and the officer had replied, "Yeah, sure go." The defendant said he then observed his accuser get back into his truck and drive away.

[102] Moreover, the defendant also said the officer would not take his statement. In addition, the defendant disagrees with Ashraf Mohammad's testimony that there had been any collision.

[103] Furthermore, the defendant said that the truck, which had been driven by the other driver (Ashraf Mohammad), had been moving fast. He further said that he himself only had to cross the distance of one lane, while Mohammad had almost one-eighth or one-quarter of a mile to travel, and had been barrelling down. He also said because of that problem they had to put a convex mirror on their fence in order for them to see those trucks coming at them. He also said this area was private property and that it was their yard and driveway.

[104] In addition, the defendant explained that when he had pulled out from his yard he could not see Mohammad's tractor-trailer coming down that laneway, so that when Mohammed's tractor-trailer had gotten beside the defendant, the defendant said that he had not expected Mohammed to be there, but did notice Mohammad being beside him to the defendant's right.

[105] The defendant also said that on September 18, 2011, he had taken the photograph of a sign that had been posted on that roadway approximately 100 yards back from the lights and that had been admitted and entered as Exhibit #2, which he said had also been posted there on September 15, 2011. Furthermore, he said the photograph had been of TransForce's property, which is the company that he works for, and that Kingsway is a subsidiary of TransForce.

[106] In addition, the defendant said the incident had occurred parallel to where the sign is located, which is not at the intersection at Dixie Road. Furthermore, the defendant said he had just pulled out of the yard and had just crossed that one lane, when Mohammad had come after the defendant. He also said Mohammad had been speaking to the defendant in hard, broken, and bad English. The defendant further explained that this had been the reason why he had gotten out of his truck, as he had gotten "F'in pig" about 20 times during the window incident.

[107] Furthermore, the defendant said he had never expected that Mohammad would get out of his truck and come after the defendant on the left side. Moreover, when the defendant and Mohammad were involved in their incident, the defendant said his trailer had been still on an angle, while Mohammad's had been straight. He further explained that his trailer had still been on an angle because he had been coming out of the yard. He also said that they were about three feet side by side. In addition, he said that Mohammad's truck and trailer had been to the right of his own tractor-trailer.

[108] The defendant also explained that Mohammad had gotten out of the tractor and had come after the defendant on the driver's side of the defendant's truck. The defendant then said he got out and said to Mohammad, "If I had seen you - there's not, it's not a rush, I'm getting paid by the hour, there's no rush." Then, the defendant said Mohammad started yelling and screaming at the defendant in broken English, which had been really hard for the defendant to understand. In addition, the defendant said he and Mohammad then actually walked down the defendant's trailer together and then they both walked between their two vehicles. Moreover, at that point, the defendant said he had thought the incident was over. Then the defendant said he had walked to the front of his own tractor and then got back into his tractor.

[109] In addition, the defendant said that when he had observed the guy across the road pointing down, he had realized that Mohammad's hand was between the bug deflector on his tractor, but that he had not seen him. However, prior to that particular event, the defendant said that after they had both gone up through the trailers together, the defendant said he had thought that Mohammad had gone into Mohammad's own tractor, when he himself had went into his own tractor. Moreover, the defendant said he did not know that Mohammad had attached himself to the front of the defendant's truck.

[110] Furthermore, the defendant said that his tractor-trailer had been side by side with Mohammad's tractor-trailer and that when he had started pulling ahead he had observed this guy had been still pointing with his hands, so he said he got on his "CB" and asked over his CB, "What's up, driver?". However, the defendant said the other guy never answered. And, then when the defendant looked, he said he had seen Mohammad's one hand through the bug deflector, as there is only room for one hand to open up the hood. On seeing the hand, the defendant said he had stopped. Then the defendant said Mohammad disappeared, as he is small and that the defendant did not see him. The defendant then said he started pulling ahead again and the guy in front of the defendant, on the lights, started pointing again. The defendant said he then looked over and had again observed Mohammad's hand, and to which, the defendant said he stopped again. He further said he then made the decision to make a U-turn and come back and get his supervisor, and that is what the defendant said he had done.

[111] In addition, the defendant said they are trained so there would be no confrontation and also taught not to have any confrontation with other drivers. Furthermore, the defendant said that in his view, he did not have a confrontation at any time with Ashraf Mohammad, as they are taught not to have a confrontation at all with anybody. He also said that the reason he had gone down the middle between the two vehicles had been to check both trailers and trucks to make sure there had been no damage, since Mohammad had come up on his side and scared the defendant. Moreover, he said his supervisor had been there, so he had decided to let his supervisor handle the situation. He also said that neither he nor his supervisor had any idea that the police had been called, until both he and his supervisor went back down to the gate.

[112] Furthermore, the defendant said that the distance from the ground to the top of his tractor's hood would be close to six feet. In addition, he said he had a bug deflector on the hood as well, which would add another four to five inches. He also said the deflector is a solid black colour and comes from the left to the right, and then it comes up higher, but leaves an opening so that the hood can be opened.

[113] The defendant also estimated that the time, from when he had initially left his yard to the time he did the U-turn and return to his yard, had been not even 15 minutes, although he said he had not been really counting the minutes.

[114] Moreover, the defendant said he disagrees with the police officer's testimony that there had been damage to the defendant's trailer. He also described his trailer as a Kingsway Cabano trailer, but that his company is presently phasing those ones out and bringing in the 523 and 633 series. In addition, he said his trailer had been an older trailer manufactured in 1998 and put into service, he believes, in 1999, and that it had been primarily used as a city trailer. The defendant then explained that the difference between a city trailer and a highway trailer is that a city trailer is used every day to do pick up and make deliveries mostly downtown. He also reiterated that his trailer had been primarily a city trailer, but that it is also used occasionally on the highway.

[115] In addition, the defendant said he had examined his equipment that morning and had conducted a circle check as required by law. He explained the circle check encompasses going from the front of the truck right to the back, and that when they pick up a new trailer, which he does three or four trailers a night at that time, they have to hook to the trailer and then they have to do a circle check on the trailer as well, and if there is any kind of damage then they have to document it in their logbook. However, he said he did not document any damage on that trailer, but if there had been damage, then he would have to document that in his logbook. Moreover, the defendant said there had been nothing to document at all, as there was nothing wrong with it.

[116] And, in response to whether he had noticed any damage to Mohammad's vehicle, the defendant said he had not been given the opportunity to notice, and that he had not seen anything while he had been inside the police officer's car. In addition, the defendant said that when Mohammad was done, he said Mohammad had gotten back into his truck and drove away.

[117] Furthermore, the defendant said that when both he and Mohammad had walked between their respective trailers together, he said he did not notice any damage to either of their tractor-trailers.

[118] The defendant also said that he thinks he had taken, about two weeks prior to the present date, the photograph of the plate on the trailer he had been using on the 15th. He further said the photograph was of the VIN plate for 494941, which also shows the manufacturing date of 10-1998 (see Exhibit #3).

[119] Moreover, the defendant said he had obtained a photograph of his terminal and the Bond Shed from Google Earth or from Google Maps (see Exhibit #4). He also said this photograph accurately reflects the intersection on the date of the incident, but not presently, as the intersection has been torn all apart and re-done since that time. In addition, the defendant marked on the photograph from Google Maps the position or location of the private property sign, which is shown in the photograph marked as Exhibit #2. Then he marked an "X" on the Google Maps photograph (Exhibit #4) to indicate the location of where the defendant had pulled out from his yard. In addition, the defendant drew two rectangles side by side on the Google Maps photograph to represent the location of where the defendant's and Ashraf Mohammad's respective vehicles had been stopped and parked side by side.

[120] Furthermore, in describing how he made his U-turn, the defendant said that after observing Mohammad twice being attached to his tractor and after not seeing him or his hand anymore and not knowing where Mohammad was, the defendant said he had taken the air brakes off, put his truck in first gear, and started pulling forward into the intersection. He then said he made the U-turn and came right back into the yard and then drove up to the side of the building where he got out to get his supervisor. He then said he told his supervisor that there had been something going on and that he needed the supervisor to come down front. The defendant then said that when he and his supervisor were going through the gate the police had approached the defendant. Moreover, the defendant further described his U-turn maneuver as first pulling out into the intersection and then making a left-hand turn before returning back into the yard.

[121] The defendant also said that when the police officer had asked him whether he had been part of this incident, the defendant said he had replied, "I think so, I'm not sure, I went and got my supervisor." Moreover, the defendant said that his supervisor had been standing beside him at that point. Furthermore, the defendant said the officer then asked whether he had anything in his pockets and was then told to put everything on the roof and sit in the police car. However, the defendant said he told the officer that he could not sit because of his artificial hip, but that he could lie instead on the seat. He said the officer then opened the door and the defendant then said he laid in the backseat.

[122] In addition, when asked of what he could see while sitting in his truckseat, the defendant answered that after he had realized what the guy across the road had been pointing at, he said he had just observed Mohammad's fingers, but had seen nothing before that because he had thought that Mohammad had gone back to his own truck. Moreover, the defendant said he had no reason to believe that anyone would be standing in front of his vehicle.

[123] Furthermore, the defendant explained that because he had a heavy load he had been only moving forward at about two miles per hour when he had put his truck in gear, and that he had started moving forward before he had to slam on his brakes. In addition, he said that after the hand he had observed had disappeared, he had thought the person had moved away from the front of his tractor, so he had put his truck back into gear, pulled the clutch out, and had started to go forward again.

[124] Moreover, the defendant said, if someone had been standing right up against the grill at the front of his truck then he would not be able to see them, unless that person had been over six feet tall.

[125] The defendant also said he disagreed with Ashraf Mohammad's testimony that the defendant had punched Mohammad. In addition, the defendant said he had never had any dealings with Mohammad before this incident and that the incident had been the first time that he had ever seen Mohammad. However, the defendant did agree that he and Mohammad had been side by side and that they had exchanged words.

[126] And, in regards to the sign in the photograph marked as Exhibit #2, the defendant said he does not know who posted the sign, but does not think it is a city sign and assumes that TransForce had posted the sign because it was TransForce's property. He also said the sign had been located about 100 meters from Dixie Road.

[127] In addition, when asked to explain why he and Ashraf Mohammad would have chosen to get out of both their respective vehicles and walk down between their two trucks, the defendant answered that he does not know Mohammad's reason for doing so, but the defendant's reason had been to make sure that everything had been all right.

[128] And, then when asked to explain what would be the purpose for making sure that everything had been all right if nothing had happened between he and Ashraf Mohammad, the defendant had answered that he had just wanted to make sure everything had been all right and as a double check. He further explained that one has to double check when one is driving a tractor-trailer and that one is always very cautious when it came to stuff like that. He then elaborated that the reason for double-checking had been because they have been taught to do so, and that by law, they are required to check their trailers and tractors, which also includes stopping and checking again after four hours on the road, including checking their tires. In addition, he said he had gone to make sure the doors were closed again when he had been between the two tractors.

[129] Furthermore, when asked whether there had been an altercation between him and Ashraf Mohammad, the defendant answered no. Then when asked why Mohammad would allege there had been an altercation between him and Mohammad, the defendant responded he had no idea why Mohammad would make that allegation. He also said he had no idea why the officer had decided to charge him, except that Mohammad had alleged that the defendant had hit him, which the defendant said had been impossible.

[130] In addition, the defendant explained that for the criminal assault charge his lawyer had informed him that he could have a peace bond to resolve his charge or he could pay more legal fees to fight the charge. The defendant also said he had decided to enter into the peace bond and agreed to stay away from Ashraf Mohammad because it had been the easiest and cheapest way to deal with the criminal charge. He also said the criminal charge had been withdrawn against him.

[131] Furthermore, the defendant said that both his passenger and his driver's side windows were up, just before he began moving forward.

[132] In addition, the defendant said his truck is a day cab and that he uses it on the highway, while his trailer is used primarily in the city. He also agreed that trailers used for the city are easier to move, but also explained that these trailers are utilized as city trailers after having been used for many years on the highway.

[133] Moreover, the defendant said he had made the decision to turn around and go back and get his supervisor because he had enough confrontation.

[134] The defendant further said he had only observed one hand, but cannot say if it had been a right or left hand. He also said he had assumed that the person who had been pointing had been warning the defendant about something in front of his truck, but he did not realize that at first, nor had he realize there had been someone standing there or had he known that someone was there. Moreover, after the first time he had seen the hand, the defendant said he had thought that the person had taken off and had moved away from the front of the defendant's truck, but that he did not realize the person had been still there until he saw the hand again.

[135] Furthermore, the defendant disagrees with Mohammad's testimony about the defendant being involved in a collision and with the officer's investigation of the ordeal that in fact there had been damage to both vehicles.

[136] The defendant also said he would not classify the incident with Ashraf Mohammad as a confrontation, since they just had words with each other, and that there had been no assault and that he had no idea when he came back down that the police were going to be there.

[137] And, then when asked for the specific purpose of why the defendant had gone to get his supervisor, the defendant answered that with Kingsway, they have one of the strictest safety policies in the industry and that they are taught not to have any confrontation whatsoever. He also said he had been confused and did not know what to do with the hand and that when he had reached the point where there had been a hand on his truck's hood, he said it had been enough, so he decided to just go and get his supervisor so that his supervisor could come back and deal with it, since he wanted nothing to do with it and wanted to avoid it developing into a confrontation.

[138] Moreover, the defendant said he disagrees that there had been an accident.

[139] Furthermore, in explaining that the two rectangles that he had drawn on the Google Maps photograph (Exhibit #4) to indicate where his and Mohammad's tractor-trailers had stopped beside each other, when both had exited their respective vehicles and walked between them, the defendant said he had just come out of his gate and that the gate is right where he had drawn the "X" on the photograph, and then said that "we" had just made the turn when Mohammad had come up the defendant's right side and scared the begeebees out of the defendant.

[140] In addition, the defendant said that their two tractor-trailers were not even close to the intersection, as he had just come out of his gate and had just started to make the turn or the movement over to the middle lane, and because one cannot make a right turn from the end of the lane at Dixie Road because it is tight, then one has to make a right turn from the middle lane to do it safely.

(5) Summary of Surena Wentzell's Testimony

(Common law wife of the defendant)

[141] Surena Wentzell testified that she is the common law wife of the defendant, David Hubbs. She also said that she is employed by the Canada Border Services Agency as a Border Services Officer.

[142] Wentzell also said she had taken four photographs of the defendant's hands when he had arrived home on the day in question at approximately 9:00 a.m. She also said that because her job involved gathering evidence and investigation her first thought, when the defendant had come home and had informed her about the incident that had just happened, had been to take pictures of his hands as proof or as evidence.

[143] Furthermore, when shown the photographs of the defendant's hands, Wentzell acknowledged that she had been the author of the photograph and that she had taken the photograph five or ten minutes after the defendant had come through the door on September 15, 2011 (see Exhibit #5).

[144] Wentzell also said the defendant at the time of the incident had two torn rotator cuffs, a broken tailbone, an artificial hip, and that from the defendant's left knee down to his left foot it had been patched together with a lot of screws and a chain mesh. She also said the defendant is not physically able to run and has difficulty getting in and out of his transport truck.

[145] In addition, on that date Wentzell said she did not notice any injuries whatsoever to the defendant.

[146] However, when Wentzell had been questioned about the photographs she had taken, which did appear to show that the defendant had cuts on his right hand between the first and second knuckles and on the second knuckle on the middle finger, she replied that they were injuries from the defendant being a motorcycle mechanic. She also explained that the defendant has his own shop, in which the defendant works at during the day, and that had been how the defendant had injured his two shoulders, specifically how he had torn his rotator cuffs when he had lifted an engine by himself and had been carrying it around. She also said the defendant has not had the time to have them fixed yet.

5. ISSUES

[147] The key issues to be decided in this proceeding may be summarized as follows:

(a) Did the driving conduct which would constitute the offence of careless driving occur on private property or did it occur on a highway?

(b) Has the prosecution met its burden in proving beyond a reasonable doubt that the defendant committed the actus reus of the careless driving offence?

(c) If the prosecution has met its burden in proving the defendant had committed the actus reus of the careless driving offence beyond a reasonable doubt, then has the defendant meet its burden in establishing a defence of due diligence on a balance of probabilities, in order to be acquitted?

6. RELEVANT LAW

[148] The offence of careless driving is set out in s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8, and provides that:

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 $200 and not more than $1,000 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.

7. ANALYSIS

(A) Has The Prosecution Proven Beyond A Reasonable Doubt That The Actus Reus Of The Offence Had Been Committed On A Highway?

[149] Careless driving is a regulatory offence that has been classified as a strict liability offence, in which the fault element is one of negligence, and 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 accused had committed the actus reus of the offence beyond a reasonable doubt. And, once the prosecution fulfills that onus of proof, then in order for the accused to be acquitted of the offence the accused 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: R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.).

[150] 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 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 been aware, 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.

[151] Moreover, 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 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.

[152] In addition, as this court had summarized in R. v. Cianchino, [2010] O.J. No. 3162 (QL), 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 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.

[153] 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.

[154] With respect to the first stage of the inquiry in 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, and bases this on the totality of the defendant's driving conduct at the time in question, especially in regards to two particular events. Specifically, for the first event the prosecution submits that after the defendant had re-entered his truck, following the face to face interaction and conversation he had been having with Ashraf Mohammad outside of their respective trucks, the evidence reveals the defendant had just been made aware of a person being at the front of his truck when he noticed a hand appearing above his hood, but had imprudently put his truck into gear and moved his tractor-trailer forward without properly or reasonably checking to see if the person had still been at the front of his truck, and then pushed Ashraf Mohammad, whose hand had been above the hood of the defendant's truck and who had still been standing at the front of the defendant's truck, in or into the intersection with the defendant's truck. And, for the second event, the prosecution submits that while the defendant had been making a right turn or while making the U-turn maneuver with his tractor-trailer in the intersection from the middle westbound lane, the rear passenger-side of the defendant's trailer had collided with the front driver's side of Ashraf Mohammad's truck that had been situated in the westbound right or curb lane. Accordingly, the prosecution submits these two particular events of the defendant's driving constitutes the offence of careless driving.

[155] However, the defendant contends that he had not assaulted Ashraf Mohammad, nor had there been a collision between their two tractor-trailers, nor had the defendant observed any damage on his trailer that would indicate there had been a collision. In addition, in regards to moving forward with Mohammad at the front of his truck, the defendant contends that he had not been aware anyone had been at the front of his truck when he began moving forward, as he had believed that Mohammad had returned to his own truck since he had believed their conversation and interaction had ended. Nor had the defendant seen anyone at the front of his truck when he had first begun to move forward, but when he did become aware of a hand appearing above his truck's hood, he had immediately stopped his truck. And, then when the hand had disappeared and had been no longer visible above his truck's hood, the defendant believed that the person was no longer in front of this truck, even though he did not do anything to verify that belief or check to see if indeed the person was no longer at the front of his truck, and from that belief the defendant moved his truck forward again, but had to immediately come to a stop when the hand had appeared above his hood again.

[156] Furthermore, the defendant argues that Ashraf Mohammad's testimony regarding the assault, that the defendant could see Mohammad standing at the front of the defendant's truck, and in respect to the defendant's trailer colliding with Mohammad's truck and damaging the driver's side mirror and denting the driver's side of Mohammad's truck, is incredible and should be disregarded as being reliable because of the numerous inconsistencies and contradictions that Mohammad had made through the course of his testimony. Moreover, these inconsistencies and contradictions have been identified by the defendant as the following:

(1) that Mohammad's testimony about being cut off by the defendant's truck makes no sense, since Mohammad had first testified that the defendant's truck had cut him off, but then testified that the defendant's truck had nearly cut him off, and then subsequently agreed with the suggestion that the defendant's truck did cut him off;

(2) that Mohammad's testimony has been insincere and this insincerity had been revealed when Mohammad had become frustrated during cross-examination and had stated that he needed his lawyer, so that he could give the right answer;

(3) that Mohammad's testimony is not credible because Mohammad had testified about walking side by side with the defendant between the two trailers, but walking side by side is not physically possible in such a small space, since Mohammad had testified that the distance between the two trailers had been approximately three feet or less;

(4) that Mohammad's testimony that the defendant's trailer had collided with Mohammad's truck should not be relied on, nor carry any weight, since Mohammad only testified that he is "pretty sure" the rear passenger-side of the defendant's trailer did damage Mohammad's truck when Mohammad had been standing in front of his truck, especially when contrasted with the defendant's testimony that he had checked his trailer and that there had been no damage to his trailer to indicate that there had been a collision;

(5) that Mohammad had indicated that Mohammad's drivers-side mirror had been damaged and that Mohammad had said that it was on the ground, which contradicts the suggestion that the mirror had still been attached and not on the ground;

(6) that Mohammad's testimony regarding two other witnesses or drivers had blocked the defendant from leaving had not been accurate or truthful and does not make sense, since one truck had been southbound and the other northbound on Dixie Road, but that logically those trucks would only prevent or block the defendant from travelling in the wrong direction or against the one-way direction of those two trucks;

(7) that Mohammad had originally stated that he had been standing directly in front of the defendant's truck on the right side, but then on suggestion stated he had been in the center in front of the license plate of the defendant's truck, and as such, Mohammad had been giving answers as he had been expected to give or what he thinks the court wants to hear;

(8) that Mohammad had testified about being a professional driver, yet had testified that he had stood in front of the defendant's truck, knowing full well how dangerous it would be for a person to stand in front of a large transport truck, especially when there is a blind spot immediately at the front of a large transport truck;

(9) that Mohammad had not testified about holding his hands up while standing in front of the defendant's truck and claiming to be getting the number of the license plate, nor did he testify that his back had been touching the grill of the defendant's truck or that Mohammad's back had been facing the front of the defendant's truck, yet Ivo Nikolov had testified to having observed Mohammad holding up his hands while in front of the defendant's truck and that Mohammad's back had been facing and being touched by the front grill of the defendant's truck;

(10) that Mohammad, who had testified to being a professional driver for 11 years, had also testified that the defendant could see him when Mohammad had been standing in front of the defendant's truck, but the defendant's truck is very high with the truck's hood measuring six feet above the ground or a height of six feet and four inches with the bug deflector, while Mohammad himself is only 5'-3½" tall and had been unsafely standing in the blind spot at the front of the defendant's truck;

(11) that Mohammad had first testified he had stopped at the pedestrian lines, but then later contradicted that testimony by testifying that there were no lines present because of the construction going on at that time;

(12) that Mohammad had testified that he had been driving on a private driveway, as well as Officer Dabrowa testifying that Mohammad's truck had been stopped back of the intersection and not in the intersection.

(13) that Mohammad had testified that the defendant had assaulted him, but there were no injuries to Mohammad or to the defendant;

(14) that Mohammad had testified that the defendant had "run" to Mohammad's truck and then "run away", but it had not been possible for the defendant to run, which is evidenced by the defendant's wife's testimony that the defendant cannot run because of his injuries, bad back, artificial hip, and his leg containing rods and wire mesh.

(A) Has The Prosecution Proven Beyond A Reasonable Doubt That The Actus Reus Of The Offence Had Been Committed On A Highway?

[157] However, before deciding whether either of the two events for which the prosecution relies on would indeed form the basis for the defendant's careless driving charge, it has to be first determined whether either of those two driving events had occurred on a highway.

[158] On that issue, the defendant suggests that because there is evidence in respect to the interaction between the defendant and Ashraf Mohammad having occurred on private property, which is from Ashraf's testimony about driving on a private roadway that could be called "Aerowood Road", as well as from the defendant's own testimony and evidence, which includes the defendant marking the location of the defendant's and Mohammad's tractor-trailers stopped by the private property sign on the Google Maps photograph entered as Exhibit #4, which is supposedly located approximately 100 meters east of the intersection. In addition, the defendant submits that Officer Dabrowa had confirmed that when he had arrived at the scene, he had observed Ashraf Mohammad's tractor-trailer parked back of the intersection and not in the intersection.

[159] On the other hand, the prosecution submits that the circumstances surrounding the defendant moving his tractor-trailer forward and pushing Ashraf Mohammad in or into the intersection is evidence of careless driving and when the defendant's trailer had collided with Mohammad's tractor while the defendant had been executing a right turn or a U-turn in the intersection is also evidence of careless driving. As such, the prosecution submits that these two particular events had occurred on a highway, namely in the intersection of Aerowood Drive and Dixie Road.

[160] However, even though Ashraf Mohammad had testified about being on a private road or driveway that could be called "Aerowood Road" and the defendant's markings that he had drawn on the Google Maps photograph (Exhibit #4) to show that the incident between the defendant and Ashraf Mohammad had occurred at the location where their respective tractor-trailers had stopped beside each other, which had been parallel to or beside the private property sign located 100 meters east of the intersection, and that the defendant had indicated that the incident had happened far away from the intersection, there is nevertheless reliable evidence from a third-party witness that shows the two alleged driving events of the defendant that is relied upon by the prosecution, as the conduct that constitutes the offence of careless driving, had occurred on a highway. In particular, Ivo Nikolov had testified that the defendant's tractor-trailer had pushed Ashraf Mohammad in or into the intersection of Aerowood Drive and Dixie Road and that the collision that had occurred between the defendant's trailer and Ashraf Mohammad's truck had occurred as the result of a right turn or the U-turn made by the defendant's tractor-trailer within the intersection of Aerowood Drive and Dixie Road.

[161] In addition, Ashraf Mohammad had testified that he had been stopped for the red light at the intersection (at the pedestrian lines that were no longer there) and that the defendant's truck had stopped beside his tractor-trailer to Mohammad's left, and that the rear passenger-side of the defendant's trailer had collided with the front driver's side of Mohammad's tractor, where it could be reasonably inferred that the defendant's truck would have been inside the intersection during the U-turn when the rear part of the defendant's trailer had collided with the front driver's side of Mohammad's tractor.

[162] Furthermore, the defendant's testimony that the incident had occurred parallel to or beside the private property sign that is by the exit to the defendant's yard and which is approximately 100 meters east of the intersection is not logical or plausible in light of Ivo Nikolov's testimony about observing the defendant's tractor-trailer pushing Ashraf Mohammad to the halfway or more than halfway point of Dixie Road, as well as testifying about the defendant's vehicle pushing Mohammad in the intersection, and also in light of the indication made on the diagram drawn by Nikolov (Exhibit #1) that Mohammad had walked north inside Dixie Road after Mohammad had moved from the front of the defendant's tractor-trailer.

[163] Additionally, the placement by the defendant of his tractor-trailer and Mohammad's tractor trailer beside each other, approximately 100 meters east of the intersection, does not coincide with Ashraf Mohammad's testimony of being stopped at the intersection, Ivo Nikolov's testimony about observing Mohammad being pushed by the defendant's truck in the intersection, and the defendant's own testimony about deciding to make a U-turn to return to his yard, especially considering that if the defendant's testimony about the incident happening approximately 100 meters east of the intersection were plausible then the defendant's decision to return to his yard to get his supervisor would not have required a U-turn to be made within the intersection if his tractor-trailer had already been stopped 100 meters east of the intersection, as the defendant could have simply left his vehicle at that location and returned to his yard without necessitating making a U-turn inside the intersection.

[164] In addition, the defendant had testified that his trailer had still been on an angle as he had just exited his gate from his yard, which is near the private property sign, and had stopped his tractor-trailer with the trailer being at an angle, yet later draws parallel rectangles to depict the position of the two tractor-trailers being parallel to each other by the private property sign, which is inconsistent with his initial testimony about the angle of his trailer. Moreover, in order for it to be logically plausible for both tractor-trailers to stop beside each other approximately three feet apart and parallel to each other, then the defendant would have to drive is tractor-trailer far enough to straighten out his trailer in order to be parallel with Ashraf Mohammad's tractor-trailer.

[165] Ergo, based on Ashraf Mohammad's and Ivo Nikolov's testimony, which I find credible, the prosecution has proven that the defendant's two driving events that would constitute the offence of careless driving had occurred on a highway, namely in the intersection of Aerowood Drive and Dixie Road.

(B) Has The Prosecution Proven The Actus Reus Of The Offence Beyond A Reasonable Doubt That The Defendant Had Driven His Motor Vehicle On A Highway Without Due Care And Attention Or Without Reasonable Consideration For Other Persons Using The Highway?

[166] Under s. 130 of the H.T.A., the prohibited act for the offence of careless driving can be proven beyond a reasonable doubt by the prosecution in one of two ways: (1) that the defendant had driven his motor vehicle without due care and attention or (2) that the defendant had driven his motor vehicle without reasonable consideration for other persons using the highway.

[167] As such, has the prosecution proven beyond a reasonable doubt that the defendant's driving conduct, in consideration of the circumstances or factors surrounding that conduct, had either been without due care and attention or had been without reasonable consideration for other persons using the highway?

[168] Furthermore, since the fault element for a strict liability offence is negligence or inadvertence, then the defendant's driving conduct must be viewed objectively, in which the lack of due care could be inferred from the conduct of the defendant as judged by the standard of a reasonable person in similar circumstances. In other words, would a reasonable person in similar circumstances facing the defendant have acted as the defendant did?

[169] First of all, in considering the credibility of Ashraf Mohammad's testimony, which the defendant contends is lacking based on a list of inconsistencies, implausibilities, or contradictions identified by the defendant, I disagree with the defendant's contention that Mohammad's testimony is so inconsistent, implausible, and contradictory that it would sufficiently undermine his credibility, considering that English is not Mohammad's first language, which I base on his heavy accent when he had been speaking and using English.

[170] Moreover, in respect to the defendant's meticulously review of Mohammad's testimony for inconsistencies, implausibilities, or contradictions, I find many of the impugned items to be related to Mohammad's ability in the English language or Mohammad's description of distances in which he had answered with a range of distances. However, despite the presence of some inconsistent testimony, I find that Ashraf Mohammad's testimony is logically consistent and plausible with Ivo Nikolov's testimony, and that it had been consistent with the actions of someone who had been assaulted as part of a road rage incident and who had then called 9-1-1 to report the assault, and also consistent with someone attempting to get the license plate number and in trying to stop their assailant from leaving the area before the police arrived by standing in front of the assailant's truck, as Mohammad had testified to doing. Furthermore, I find Mohammad's testimony about the defendant's trailer colliding with Mohammad's truck and damaging the mirror and denting the truck is consistent with Officer Dabrowa's testimony about observing a damaged mirror and a dent on Mohammad's truck and the scratches or markings on the defendant's trailer, indicating that it had been consistent with the defendant's trailer side-swiping the defendant's truck.

[171] Furthermore, in regards to Mohammad's impugned testimony in which he had initially testified to being cut off by the defendant's truck and then later clarifying that the defendant's truck had nearly cut him off, but then subsequently agreeing to the suggestion that he had been cut off, shows he had been using the term "cut off" interchangeably with the act of nearly being cut off, which is consistent with Mohammad testifying that he had been able to speed up to avoid a collision and the defendant's truck coming within three feet of Mohammad's truck, and that Mohammad had arrived at the intersection first before the defendant later pulled up alongside his truck.

[172] Also, in respect to the contention that Mohammad had been insincere and needed his lawyer present to be able to give the right answers, I view those comments and Mohammad's concern about answering a specific question about his actual height to reflect Mohammad's concern about giving answers that would possibly incriminate himself or that it would affect his personal liability arising in another potential proceeding, but when instructed by the court that he had to answer he then agreed to answer the question. Moreover, this had been the only question he had been reluctant to answer.

[173] In addition, in regards to Mohammad describing the distance between the two trailers as three feet or less and that he and the defendant had walked side by side between the two trailers, which could be logically impossible for the two men to physically walk "side by side" in a space of three feet or less, it is not unreasonable for someone who had been asked for a distance and has to estimate what that distance is, to respond with an approximate distance. Hence, three feet or less would not be too much of an unreasonable estimation, especially when a tape measure is not available to accurately measure the distance, as an approximation of the distance between two trailers, which would allow two people to walk side by side between them. In addition, the defendant had also used the same distance of three feet in his testimony, but did not say they had not been walking side by side or in a different manner. As such, I do not find this particular testimony about the distance between two trailers being three feet or less and the seemingly implausibility that they had both walked side by side between the two trailers to undermine Mohammad's credibility, so as to disregard all of his testimony.

[174] Furthermore, as for Ashraf Mohammad's testimony that he had been "pretty sure" the defendant's trailer had collided with Mohammad's truck, which has been suggested by the defendant that Mohammad had been uncertain as to the actual occurrence of that particular event, and as such, should not be relied on as evidence that the defendant's trailer had been involved in a collision with Mohammad's tractor-trailer. However, considering that English is not Mohammad's first language, Mohammad's use of the term "pretty sure", also may be his reference to an event occurring to be more than just a belief or mere conjecture. Moreover, Officer Dabrowa had testified he had observed damage on Mohammad's truck and the scratches or markings on the defendant's trailer that were consistent with the defendant's trailer side-swiping Mohammad's truck, which supports Mohammad's testimony.

[175] And, in respect to the defendant's contention that Mohammad had testified to the mirror being damaged and on the ground, even though it had been suggested by the defendant that the mirror had been still attached, I find there had been no evidence that Mohammad had stated in his testimony that the mirror that had been damaged and had been on the ground.

[176] Furthermore, in regards to Mohammad's testimony that other drivers had blocked the intersection, so that the defendant could not leave, had been Mohammad's perception that the intersection had been actually blocked by trucks. He had also referred to the intersection being on hold or stopped, but that the defendant had still tried to make his turn. As such, I agree with the defendant that Mohammad's testimony that the two drivers, one northbound and the other southbound, had blocked the defendant from leaving would only be logical, if the defendant was intending to drive the wrong way to the direction of those two drivers. In addition, Mohammad's testimony about the intersection being on hold or stopped would also infer that other motorists at the intersection would have been aware of the interaction between the defendant and Mohammad in the intersection and had stopped from proceeding through the intersection for the safety of Mohammad while he had been pushed into the intersection by the defendant's truck or while walking within the intersection to get away from the front of the defendant's truck. Moreover, Mohammad's testimony about other drivers blocking the intersection only appears illogical when only the northbound truck and the southbound truck is considered as the blocking vehicles, which is reasonable considering that the northbound and southbound vehicles would only prevent the defendant from travelling the wrong way for northbound Dixie Road and the wrong way for southbound Dixie Road. However, if an eastbound vehicle had stopped across the southbound lanes of Dixie Road then this would have prevented the defendant from turning left to go southbound onto Dixie Road, while if the southbound vehicle driven by Ivo Nikolov had entered the intersection and had been stopped across the westbound lanes of Aerowood Drive, then that would have prevented the defendant from travelling westbound on Aerowood Drive after Dixie Road. Therefore, the intersection would not have been entirely blocked as the defendant could have still made a right turn to travel northbound on Dixie Road from the middle westbound lane. Although Mohammad's testimony about the intersection being entirely blocked is not plausible, most of the possible directions for the defendant could have been blocked by other vehicles. However, this particular testimony it is not sufficient to undermine Mohammad's entire testimony or his general credibility.

[177] In addition, although Mohammad's testimony is not completely consistent on whether he had stood in the center of or more to the right of the defendant's truck, while he had been in front of the defendant's truck, it does not contradict Ivo Nikolov's testimony that Nikolov had observed Mohammad at the front of the defendant's truck being pushed in the intersection.

[178] Moreover, as to Ashraf Mohammad standing in the blind spot and his testimony that the defendant had been able to see him while at the front of the defendant's truck, the veracity of this testimony would depend on the actual distance Mohammad had been from the front of the defendant's truck at various times and whether Mohammad had only entered the blind spot when the defendant had moved his truck forward. Hence, it is reasonable that the defendant would not have been able to observe Mohammad the closer Mohammad had gotten to the front of the defendant's truck. And, even though it would be unsafe for Mohammad to be standing in the blind spot at the front of the defendant's truck, considering that Mohammad is professional driver and would have been aware or ought to have been aware of a transport truck's blind spots, Mohammad nevertheless had believed the defendant had been able to see him at the front of the defendant's truck and would have likely believed that the defendant would not move his truck forward while Mohammad had been standing in front of the defendant's truck while Mohammad had been attempting to stop the defendant from leaving, in order to get the license plate numbers at the front of the defendant's truck, and after Mohammad had informed the defendant that he was calling 9-1-1 and that the defendant could not leave.

[179] Furthermore, in respect to the defendant testifying about stopping for the red light before the pedestrian lines and then testifying later that the lines were not presently there because of the construction is an inconsistency. However, Mohammad's initial testimony about stopping before the pedestrian lines is still a reference to stopping near the intersection at Dixie Road where the pedestrian lines may have been or were they were prior to the construction. Furthermore, this testimony is still consistent with Ivo Nikolov's testimony, and as such, is not sufficient to undermine all of Mohammad's testimony or Mohammad's credibility.

[180] Also, in regards to Mohammad testifying about being on a private road, which is consistent with the presence of the private property sign (see Exhibit #2), Mohammad also testified he had stopped for the red light back of where the pedestrian line would have been, is also consistent with Ivo Nikolov's testimony about having observed the defendant's truck pushing Ashraf Mohammad in the intersection. Thus, even though Mohammad had talked about being on a private road, the events constituting the careless driving, nonetheless, had occurred in the intersection and on a portion of the northbound lanes of Dixie Road, which is a public highway.

[181] Moreover, in respect to the defendant's contention that Mohammad had testified that the height of the front of the hood on the defendant's truck had been five feet high, when in actuality and as the defendant had testified, that the height of the defendant's hood is six-feet high with a four-inch high bug deflector attached to the top of the hood. However, after reviewing the transcript of Mohammad's testimony, Mohammad had actually answered that the height of the defendant's hood had been in the range of "five feet, six feet" when he had been asked about the height of the hood, which is not an unreasonable estimation of a distance.

[182] As for Mohammad using the words "run away" to describe the defendant returning to his truck after the defendant had hit Mohammad's chest, also does not necessarily mean Mohammad had used the term "run" to only mean "to physically run", but that Mohammad in using the words to "run away" could have also meant the defendant had left or had escaped from Mohammad's presence or that it had been a reference to the defendant returning quickly back to the defendant's truck to escape the situation.

[183] And, in respect to Mohammad's failure to testify about holding up his hand or that his backside had been facing the front of the defendant's truck when the truck moved forward is inconsistent with Ivo Nikolov's testimony about observing Mohammad holding his hands up and Mohammad's back to the front of the grill of the defendant's truck, but are not inconsistencies that would sufficiently undermine Mohammad's credibility or all of Mohammad's testimony, as the failure of Mohammad mentioning having his hand up or that his back had been facing the defendant's grill at the front of the defendant's truck goes to the defendant's ability to properly or accurately recall the event during his testimony that had occurred on September 15, 2011. However, this failure to recall or testify about holding his hands up or that his back had been facing the front of the defendant's truck does not undermine the Mohammad's credibility, so as to make all of Mohammad's testimony be disregarded. Although this particular testimony is not consistent with Ivo Nikolov's testimony on that particular event, it is still consistent with Ivo's testimony that Mohammad had been at the front of the defendant's truck while being pushed by the defendant's truck in the intersection.

[184] Furthermore, the photograph marked as Exhibit #5 showing the condition or appearance of the defendant's hands after the incident with Ashraf Mohammad is not a contradiction or inconsistency about the assault alleged by Mohammad, since Mohammad had testified that he although he had been struck by the defendant, the defendant had not hit him very hard on the chest, so the lack of cuts or other signs on the defendant's hands is not evidence that there had been no assault or that the defendant had not assaulted Mohammad. In addition, Mohammad had also testified that he had not been injured or that he had required medical attention because of the assault, so it would not be unreasonable that the defendant's hands would not be cut or showing injuries.

[185] However, I do find that Mohammad's testimony has been for the most part consistent with Ivo Nikolov's testimony and observations, except for Mohammad's hands being up and his back had been facing the front of the defendant's truck and in respect to the missing pedestrian lines. In addition, Mohammad's reactions and acts in calling 9-1-1 to get the police and in trying to prevent the defendant from leaving the scene are consistent with someone that had been assaulted. In addition, Mohammad's testimony about getting to the intersection and having to stop for the red light and then seeing the defendant's tractor-trailer pulling up alongside is consistent with both Mohammad's tractor-trailer and the defendant's tractor-trailer being stopped just east of the intersection and consistent with Ivo Nikolov observations about the defendant's tractor-trailer pushing Mohammad in the intersection and the defendant's trailer colliding with the front of Mohammad's truck.

[186] Furthermore, it is equally plausible that the defendant, who had testified about not being worried about which of them got to the intersection first, since the defendant was being paid by the hour, and who had also testified that it was safer to make the right turn to go northbound on Dixie Road from the middle westbound lane, and who had just been involved in a road rage incident or argument with Ashraf Mohammad, and who had been upset with Ashraf Mohammad, could have been attempting to get in front of Mohammad and make the right turn before Mohammad could make the right turn onto Dixie Road, and that while the defendant had been attempting to make the right turn at the intersection from the middle lane in front of Mohammad's tractor-trailer, which had been still stopped in the right westbound lane, the defendant's trailer side-swiped Mohammed's truck.

[187] Moreover, making a right turn from the middle lane while Mohammad's tractor-trailer had been stopped in the right or curb lane would also not a safe maneuver and may have ultimately led to the collision between the two vehicles.

[188] In addition, Mohammad had also opined that the defendant had wanted to make the same right turn, as Mohammad had wanted to make at the intersection. As such, it is equally plausible that the defendant had been intending to make a right turn from the middle lane before Mohammad could make the right turn, and in attempting to turn right while Mohammad's tractor-trailer had been still stopped in the right or curb lane, the defendant's trailer collided with Mohammad's truck. Moreover, it is equally plausible that it was only when the collision had occurred that the defendant had then decided to make a U-turn to go back to the defendant's yard and not for the reason of avoiding a confrontation and allowing his supervisor to deal with the situation that the defendant had given as the reason for making the U-turn.

[189] Furthermore, the defendant had disagreed with Officer Dabrowa's conclusion that the damage or scratches on the rear passenger-side of the defendant's trailer had been evidence of a collision, but that the scratches had simply been on the trailer as the trailer had been well used and an old trailer that had been built in 1998. However, the defendant's suggestion does not create reasonable doubt that there had been no collision, as Mohammad's testimony about a collision occurring during the defendant's U-turn is consistent with Officer Dabrowa's observations of the damage to both vehicles and his conclusion that the damage and scratches had been consistent with the defendant's trailer side-swiping Ashraf Mohammad's truck during the execution of a U-turn.

[190] In sum, driving a truck forward and pushing a pedestrian into an intersection, which is also a major highway or road creates a significant risk of harm for the pedestrian that is being pushed into the intersection and also creates the potential harm for the pedestrian to be struck by other vehicles entering the intersection and would be a reasonably foreseeable risk, if the defendant had been aware that Ashraf Mohammad had been in front of the defendant's truck when the defendant had driven his truck forward. Furthermore, although it could be plausible that it had not been until after the defendant had observed Ivo Nikolov pointing out the window and then observing a hand above his truck's hood that the defendant would have been actually aware of a person being at the front of the defendant's truck, which is what the defendant had testified had occurred, the defendant would have nevertheless been aware from that point on that someone had been standing in front of his truck. And, then when the defendant said the hand had disappeared and that he had believed the person was no longer in front of his truck, but proceeded forward again without verifying whether the person was actually still in front of the defendant's truck is conduct that falls below the standard of what a reasonably prudent driver would have done, considering that the defendant, as a professional driver would have been aware of the blind spot at the front of his truck, and could not know for sure whether the person had actually left the front of his truck before he drove his truck forward.

[191] Moreover, Ivo Nikolov had observed the defendant's truck moving forward with Ashraf Mohammad at the front of the defendant's truck within the intersection of Aerowood Drive and Dixie Road. The fact that the defendant had moved forward again after not knowing for certain whether the person had actually left or moved away from the front of his truck and then pushing the person in or into the intersection constitutes careless driving.

[192] In addition, I find that the defendant had not been driving with due care and attention when he had been in the process of making either a right turn to go northbound on Dixie Road from the middle westbound lane or in making a U-turn in the intersection that resulted in the defendant's trailer colliding with Ashraf Mohammad's truck.

[193] As such, I find that both particular events relied on by the prosecution, namely that Ashraf Mohammad had been pushed in or into the intersection by the defendant's tractor-trailer and that the defendant's trailer had collided with Mohammad's truck while the defendant had been either making a right turn from the middle westbound lane or a U-turn within the intersection had been done without due care and attention and without reasonable consideration for other persons using the highway. Therefore, the prosecution has proven that the defendant has committed the actus reus of the offence beyond a reasonable doubt.

(C) Due Diligence Defence: Has The Defendant Proven On A Balance Of Probabilities That He Had Taken All Reasonable Steps For The Circumstances To Avoid The Particular Event Or That He Had Reasonably Believed In A Mistaken Set Of Facts Which, If True, Would Render The Act Or Omission Innocent?

[194] As for the second stage of the inquiry, in showing he had taken all reasonable care for the circumstances to avoid the particular event or that he had been relying on a mistaken set of facts, the defendant had testified that he had not been aware that anyone had been standing in front of his tractor-trailer when he first moved his truck forward because of the height of the six-foot hood on his truck and the four inch bug deflector, considering Ashraf Mohammad is only 5"-3½" tall, and that he had believed that Mohammad had returned to his own truck and only became aware someone was in front of his truck when he had observed Ivo Nikolov pointing out his window and then seeing a hand above his hood.

[195] As for the second time the defendant had moved his truck forward after seeing the hand disappear and believing the person was no longer standing in front of his truck, and again seeing a hand above his hood on a second occasion is not evidence of taken all reasonable care or relying on a reasonable mistaken set of facts. Moreover, the defendant had not taken all reasonable care in the circumstances, since he failed to properly check if the person, who he became aware had been at the front of his truck, had actually moved away from the front of his truck before he proceeded forward on the second occasion after seeing the hand above his hood disappear. In particular, the defendant had not said he had honked his horn to warn anyone that could be at the front of his truck, nor did he step out to see if the person had moved away from the front of his truck or to investigate why there had been a hand above his hood considering that the defendant is a professional driver, who would have been aware of the blind spot at the front of his truck, and that moving his tractor-trailer forward a second time without "double-checking" to see if the person was still at the front of his truck is not taking all reasonable steps to avoid the event from occurring. Furthermore, the defendant said he had been "double-checking" and had walked around his tractor-trailer to make sure everything had been all right when he had been out of his truck conversing with Mohammad, yet failed to double check when there had been a person in the blind spot at the front of his truck.

[196] In addition, the defendant's testimony that nothing had happened between the defendant and Ashraf Mohammad when they were outside of their respective trucks talking to each other, and that his belief that their incident was over, and that he believed Mohammad had returned to his own truck and that he had not been aware Mohammad had said he was calling 9-1-1 or the police, or anything about the police being there, is not logical or plausible, and contradicts Mohammad's testimony that Mohammad had informed the defendant he was calling 9-1-1 and that the defendant could not leave, and that Mohammad believed that the defendant could see him when he had been standing in front of the defendant's truck.

[197] Moreover, there are aspects of the defendant's testimony that are self-serving, contrived, and understated, especially the defendant's claim he had not physically hit Mohammad on the chest; that the defendant's and Mohammad's tractor-trailers were stopped beside the private property sign located 100 meters east of the intersection to show the incident had occurred on private property, so that the Highway Traffic Act would not be apply; and that the defendant had decided to make a U-turn and return to his yard because he did not want into get into a confrontation with Mohammad.

[198] In respect to the defendant's testimony that he had not physically hit Mohammad on the chest is not logical or plausible, since Mohammad would then have no reason or cause to call 9-1-1, or attempt to stop the defendant from leaving the scene by standing in front of the defendant's truck, except for the fact that Mohammad had been physically hit by the defendant.

[199] In addition, in respect to the defendant's testimony and his markings on the Google Maps photograph (Exhibit #4) showing that both the defendant's and Mohammad's tractor-trailers had been stopped by the private property sign is self-serving and an insincere attempt to put the incident onto private property to exclude the application of the Highway Traffic Act, considering it contradicts Ivo Nikolov's testimony about observing the defendant's truck pushing Mohammad in the intersection for the width of one lane and Mohammad's testimony he had driven to the intersection and stopped for the red light. Moreover, if the defendant's truck had been stopped alongside Mohammad's truck by the private property sign that is located 100 meters east of the intersection, then the defendant did not need to make a U-turn in the intersection if he had wanted to go back to his yard, since he could have simply left his truck on the private property road and walk back to his yard to get his supervisor. Moreover, if nothing physically had happened between the defendant and Mohammad, then there had been no logical reason that Mohammad would have been standing in front of the defendant's truck, nor any reason for the defendant to do a U-turn to return back to the defendant's yard, or for Mohammad to call 9-1-1 about being assaulted.

[200] Furthermore, the defendant had testified that he did a circle check before he left his yard and that he had not observed any damage to note on his logbook and that he had double-checked his tractor-trailer when he and Ashraf Mohammad had walked between their stopped tractor-trailers and had not observed anything. However, those checks were done before the collision had actually occurred between the defendant's trailer and Mohammad's truck, but the defendant had not specifically testified that he had done the circle check after the collision had occurred in respect to not seeing any damage in respect to a collision.

[201] Moreover, these aspects of the defendant's testimony and account of what had occurred has not been logical, especially in regards to where both Ashraf Mohammad's tractor-trailer and the defendant's tractor-trailer had been stopped during their verbal interaction and when they had both walked between their respective tractor-trailers. In addition, the defendant's testimony about the reason for making the U-turn to get his supervisor to handle the situation and not agreeing there had been a physical altercation with Ashraf Mohammad or his trailer colliding and denting the fender of the front passenger side of the Mohammad's tractor, as well as damaging the driver's side mirror on Mohammad's tractor, while the defendant had been making a right turn or making the U-turn in the intersection is not logical, plausible, or consistent with Ivo Nikolov's observations and Mohammad's testimony. Moreover, the defendant's testimony that the incident occurred back from the intersection and parallel to the private property sign that is located 100 meters east of the intersection is also not logical or plausible and contradicts the testimony of Ivo Nikolov, who had testified that the defendant's truck had pushed Mohammad in the intersection, and Ashraf Mohammad's testimony that Mohammad had stopped for the red light at the area of the intersection and that the defendant had pulled beside Mohammad's truck and that they had spoken to each other through their respective windows.

[202] Ergo, the defendant's testimony has not been logical, consistent, or plausible, and also contradicts the testimony of Ivo Nikolov, and therefore undermines the defendant's credibility, and as such, the defendant's testimony about what had occurred is questionable. In sum, the defendant's testimony does not create reasonable doubt that he did not commit the offence of careless driving, nor has the defendant proven he had taken all reasonable steps in the circumstances to avoid committing the offence or that he had reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent.

8. DISPOSITION

[203] Accordingly, based on the totality of the evidence, I find that the prosecution has met its burden in proving beyond a reasonable doubt that the defendant has committed the offence of "careless driving", contrary to s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8. Accordingly, a conviction will be entered against the defendant, David Hubbs.

Dated at the City of Mississauga on January 17, 2014.

QUON J.P.

Ontario Court of Justice

R. v. Hubbs, 2014 ONCJ 32

Case Summary

R. v. Hubbs

Court Information

Parties

Counsel

Trial Information

Cases Considered or Referred To

Statutes, Regulations and Rules Cited

Authorities Considered or Referred To

Exhibits Entered

1. INTRODUCTION

2. THE CHARGE

3. BACKGROUND

4. THE EVIDENCE

(A) PROSECUTION WITNESSES

(1) Summary of Ashraf Mohammad's Testimony

(2) Summary of Ivo Nikolov's Testimony

(3) Summary of Officer Bart Dabrowa's Testimony

(B) DEFENCE WITNESSES

(4) Summary of the Defendant David Hubbs's Testimony

(5) Summary of Surena Wentzell's Testimony

5. ISSUES

6. RELEVANT LAW

7. ANALYSIS

(A) Has The Prosecution Proven Beyond A Reasonable Doubt That The Actus Reus Of The Offence Had Been Committed On A Highway?

(A) Has The Prosecution Proven Beyond A Reasonable Doubt That The Actus Reus Of The Offence Had Been Committed On A Highway?

(B) Has The Prosecution Proven The Actus Reus Of The Offence Beyond A Reasonable Doubt That The Defendant Had Driven His Motor Vehicle On A Highway Without Due Care And Attention Or Without Reasonable Consideration For Other Persons Using The Highway?

(C) Due Diligence Defence: Has The Defendant Proven On A Balance Of Probabilities That He Had Taken All Reasonable Steps For The Circumstances To Avoid The Particular Event Or That He Had Reasonably Believed In A Mistaken Set Of Facts Which, If True, Would Render The Act Or Omission Innocent?

8. DISPOSITION

This Proceeding

Judge

Counsel

Parties

Areas of Law