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

Between

Her Majesty The Queen prosecutor

and

Jaroslaw Krzyzanowski defendant

Ontario Court of Justice Mississauga, Ontario

Before: Quon J.P.

Counsel:

• G. Hume, provincial prosecutor
• J. Chojancki, legal representative for the defendant

Charge: s. 130, H.T.A. – "careless driving"

Trial held: September 6, 2013, and May 16, 2014

Judgment rendered: September 12, 2014

Reasons for Judgment

1. INTRODUCTION

[1] When a motor vehicle accident occurs on the Macdonald-Cartier Freeway ("Highway 401"), which happens to be one of Ontario's busiest highways, and there is debris or fuel spillage from that accident which needs to be cleaned up or cleared off the road, or there are repairs that need to be made to the road and surrounding area, then various vehicles and personnel working for or contracted by Ontario's Ministry of Transportation are called out to attend the accident scene to clean up the accident area or to repair the road so that the road can be reopened and made safe again to travel on. Some of these vehicles that are used in the clean-up of an accident scene are referred to as "crash trucks", "blocker trucks", or "TMA trucks (truck mounted attenuator trucks)". These crash trucks are equipped with flashing lights or strobes and usually have a large illuminated and flashing arrow sign mounted at the rear of the truck that can signal to motorists which direction or lane they should move over to, in order to avoid the lane being cleaned-up or under repair. In addition, some of these crash trucks are equipped with an impact attenuator, which is a cushioning device placed at the rear of the crash truck that is designed to absorb the energy and to slow or lessen the impact to the driver of the crash truck in the event other vehicles collide with the rear of the crash truck. These crash trucks are also positioned and used to block off lanes in order to protect emergency personnel attending at the accident scene or to protect workers doing the clean-up or repair of the road.

[2] However, despite the large illuminated and flashing arrow sign and flashing lights or strobes operating and plainly visible on these crash trucks, motorists on occasion still drive their vehicles into the rear of these crash trucks, which explains the need for the impact attenuator at the rear of the crash truck.

[3] Incidentally, this is exactly what the prosecution contends had occurred in the early minutes of September 13, 2012, to Jaroslaw Krzyzanowski, the defendant in this proceeding. In particular, the prosecution contends that the defendant, who is a professional truck driver, had been operating a tractor-trailer motor vehicle when he carelessly drove this vehicle into the rear of a crash truck that had been stopped in the right lane of three eastbound lanes of Highway 401. The crash truck had been there to block the right lane, to direct traffic to move into the center lane, and to protect the workers doing the clean-up and repairs of an accident scene that was located in the eastbound lanes of Highway 401, just west of the Winston Churchill Boulevard exit, in the City of Mississauga. Furthermore, the prosecution contends that the crash truck's flashing amber lights and the large arrow sign situated at the rear of the crash truck had been activated, illuminated, and functioning on the crash truck at the time of the collision, and that these warning lights and large arrow sign had been visible from a fair distance back, yet the defendant had failed to slow down, move into the center lane or signal his intention to move to the center lane, or to apply the brakes before colliding with the rear of the crash truck. And, as a result of the collision between the defendant's tractor-trailer and the crash truck, the defendant, the driver of the crash truck, and two other people that had been involved in the clean-up and repair of the road and who were located at the front of the crash truck were injured.

[4] After an investigation of the accident had been conducted, the defendant was charged by the Ontario Provincial Police with 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.").

[5] However, even though the large flashing arrow sign and flashing amber lights had been illuminated on the crash truck and the defendant had seen the flashing amber lights from quite a distance away, the defendant contends that he had been driving normally and safely, but that he could not avoid the accident because he had been unable to properly discern that the crash truck had been actually stopped in the same lane that he had been travelling in until the last possible moment, as there were no safety cones or pylons, emergency flares, or other signs or signals on the road that would warn him of the crash truck being stopped in the same lane that he was driving in or that would warn him to slow down. In addition, the defendant contends that there had been a truck travelling immediately in front of his vehicle in the right lane, and that before the accident occurred, this other truck had swerved at the last second from the right lane into the center lane revealing the presence of the crash truck that had been stopped in the right lane. Prior to the collision, there had been safety cones and barrows placed on the road behind the rear of the crash truck, but the cones and barrows had been collected and removed from the road by the work crews, just a minute before the collision had occurred. The safety cones and barrows had been collected because the workers had been just finishing their clean-up and repairs of the highway and had been preparing to shortly leave the area.

[6] The defendant also contends he is being blamed for the accident even though he did not create the hazard, and that the ones who did create the hazard were the workers who had removed from the road the signs and warning markings for the hazard, but they have not been blamed.

[7] In response to the defendant's contention that the removal of the safety cones had caused the accident, the prosecution submits that based on common sense a motorist in Ontario would have taken precautions upon seeing flashing amber lights, despite not knowing what those lights mean, by slowing their vehicle down or changing lanes, if necessary, and driving with an awareness of a potential hazard being immediately ahead. Furthermore, the prosecution submits the defendant had been aware of the flashing amber lights from quite a distance back, yet did not react or slow down, but kept driving at a speed of at least 100 k.p.h. up to the time of the collision. Moreover, the prosecution submits the defendant had also failed to move his tractor-trailer into the center lane or signal an intention to move into the center lane, but had stayed driving in the same lane in which the crash truck with the large illuminated arrow sign had been stopped. Furthermore, the prosecution submits the defendant had also failed to apply his brakes at any point between seeing the flashing amber lights and the defendant's tractor-trailer running into the crash truck. In addition, the prosecution contends that the defendant gave contradicting evidence about there not being any vehicles travelling beside him, but then testified that there had been vehicles in the lane beside him just before the accident. As such, the prosecution submits that based on the defendant's failure to react to the flashing lights at all before driving into the rear of the crash truck is evidence beyond a reasonable doubt that the defendant had not been driving with due care and attention or with reasonable consideration for others using the highway.

[8] The trial of the defendant's careless driving charge had been held over two days: September 6, 2013 and May 16, 2014. Four witnesses had testified at the trial, which comprised of three witnesses for the prosecution and one for the defence. After closing submissions were made, judgment was reserved and the matter adjourned to September 12, 2014, for judgment to be rendered. These, therefore, are my written reasons for judgment:

2. BACKGROUND

[9] In a period of approximately six hours, two separate motor vehicle accidents had occurred in the eastbound lanes of Highway 401, just before the Winston Churchill Boulevard exit, in the City of Mississauga. One had occurred sometime around 6:00 p.m. on September 12, 2012, while the other one had occurred approximately six hours later, but on September 13, 2012, sometime after midnight. The second accident pertains to this prosecution. In respect to the first accident, contractors and workers for the Ministry of Transportation had been called out to attend that particular accident area to do a clean-up and road repair. These workers had already been there for roughly six hours dealing with the first accident, when the second accident occurred. Also, the workers had been just getting ready to leave the area when the second accident unfortunately occurred.

[10] Furthermore, there is a bend in Highway 401 just before the area of where the accident occurred, in which motorists travelling eastbound on Highway 401 would be able to see the flashing amber lights illuminated on the M.T.O. vehicles from a fair distance away.

[11] The second accident involved a large tractor-trailer motor vehicle, which had been transporting a load of produce and vegetables, colliding into the rear of a crash truck that had been located in the right lane of three eastbound lanes of Highway 401, just before the Winston Churchill Boulevard exit, in the City of Mississauga. The crash truck had been stopped in the right lane to protect workers and vehicles engaged in the clean-up and road repair at the front of the crash truck. The crash truck had been stopped in the right lane and blocking off that lane since 9:00 p.m. of September 12, 2012. It was also equipped with flashing amber lights and a large arrow sign that had been displayed at the rear of the crash truck, which had been activated and illuminated at the time of the accident. The illuminated arrow sign, which measured approximately 4 feet by 8 feet, had been pointing to the left, indicating that the right lane was blocked and that motorists had to move from the right lane into the center lane. Mark Adam was the driver of the crash truck and had been seated in the cab of the truck when he observed the defendant's tractor-trailer in his rearview mirror approach and strike his crash truck shortly after midnight. The flashing amber lights and large arrow sign on the crash truck, which had been illuminated and functioning at the time of the accident, could be seen by eastbound motorists from quite a distance away because of the bend in the road. The driver of the tractor-trailer was Jaroslaw Krzyzanowski ("the defendant"). The defendant had seen the flashing amber lights in respect to the vehicles and workers involved in cleaning up the first accident from a fair distance away, due to that bend in the road, but had testified that he did not know what those flashing lights were about. In addition, the defendant is a professional truck driver and has been driving trucks in Canada for 22 years.

[12] Moreover, after the defendant's tractor-trailer had hit the rear of the crash truck, the crash truck was then pushed into other vehicles that had been located at the front of the crash truck, which were being protected by the crash truck. Because of the collision, three of the workers and the defendant sustained serious injuries. The defendant had suffered a broken leg.

[13] Furthermore, one minute before the second accident had occurred, two of the workers had just removed and collected the safety cones and construction barrels from the highway, which had been placed by them earlier behind the rear of the crash truck. The cones had been evenly spaced apart every three feet and placed west of the crash truck in the right lane, and which covered a distance of approximately 100 meters to the west of the crash truck.

[14] The weather that evening had been clear and there had been no rain or fog present. In addition, the roads had been dry and the diesel fuel that had spilled on the road surface from the first accident had been cleaned up. Furthermore, the traffic volume at the time of the second accident had been very light.

[15] In addition, the flashing amber lights on the vehicles that had been involved in the clean-up and road repair of the first accident were still activated and illuminated when the second accident occurred. These flashing amber lights could be seen from a fair distance back, especially for motorists travelling eastbound before the bend in the road that was located west of the accident scene. The defendant had observed and been aware of the flashing amber lights from a fair distance back. In addition, after seeing the flashing lights from a distance back, the defendant did not change lanes or signal his intention to change lanes, slow down, or apply the brakes on his tractor-trailer up to the time the collision occurred. Instead, the defendant kept driving in the right lane at a speed of at least 100 k.p.h. until his tractor-trailer hit the crash truck that had been stopped in the right lane.

[16] After the Ontario Provincial Police completed their investigation of the accident, they charged Jaroslaw Krzyzanowski, the defendant, with committing the offence of careless driving, contrary to s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8.

[17] The defendant was then served with a summons on September 13, 2012, the date of the accident, to appear in court on November 20, 2012, in respect to the careless driving charge. A Part III information was then sworn on November 15, 2012, and the summons that had been served on the defendant had also been confirmed on the same date that the information was sworn.

[18] The trial of the careless driving charge then took two separate days to complete, which were held on September 6, 2013, and May 16, 2014. Four witnesses testified in the trial. Three testified for the Crown and one testified for the defence. The witnesses were: (1) Mark Adam, the driver of the crash truck that had been stopped in the right lane and which had been struck by the defendant's tractor-trailer; (2) Bridgett McConnell, a worker who had been sitting in a pickup truck that had been parked a distance in front of the crash truck when the collision occurred; (3) Jeff Owen, the truck driver who had been driving immediately behind the defendant's tractor-trailer and had observed the accident; and (4) the defendant.

3. THE CHARGE

[19] The defendant had been charged in a Part III information sworn on November 15, 2012, with the following careless driving offence:

Jaroslaw KRZYZANOWSKI, of [residential address and city removed for privacy], Ontario, on or about the 13th day of September 2012, at the City of Mississauga, Central West Region did commit the offence of:

Careless Driving

contrary to the Highway Traffic Act, section 130.

4. THE EVIDENCE

(A) PROSECUTION WITNESSES

(1) Summary of Mark Adam's testimony (the driver of the crash truck that had been hit in the rear by the defendant's tractor-trailer)

[20] Mark Adam testified he is employed with TW Road Management Inc., which is also a contractor for the M.T.O. (Ministry of Transportation of Ontario). He further said they maintain roads and do closures for accidents. He also said he had been doing this job for four years.

[21] In addition, Adam said that he had been called sometime after 6:00 p.m. to attend an accident scene located in the eastbound lanes of Highway 401 just before the Winston Churchill exit. He further said that he had attended that area for clean-up purposes of an earlier accident, which he said had involved a five-ton truck that had been rear-ended and in which diesel fuel had spilt on the highway across all three lanes. He also said the three lanes of traffic had been required to be blocked off for the clean-up and repairs, and that the traffic in the area of the accident scene had been down to one lane. In addition, he said sweepers and sanders had been there for the clean-up. He also said that fire and police personnel were on the scene as well, and that he had been the last to arrive at the scene.

[22] Adam also said that all three lanes of traffic had been blocked, but that the left shoulder of the road had been kept open for some traffic to get through. In addition, he said the right lane and right shoulder of the road had been still open and that his vehicle had been stopped in the right lane, which he referred to as lane #3. He also said that his colleagues were in front of his vehicle in the same lane as he had been in. In addition, he clarified that he had originally stopped his truck at 6:30 p.m. in the centre lane that was also touching lane #1. Then at 9 o'clock, he said he had moved his vehicle to lane #3.

[23] Moreover, Adam said that in order to close the lanes, the lanes had been coned off and construction barrels were also placed on the road. He also said the off-ramps had been moved. In addition, he said there had been a pickup truck on the right shoulder and that his own vehicle had stuck out further than the pickup truck.

[24] Furthermore, Adam said that just before midnight on September 12th, while he had been working west of the Winston Churchill exit and just about the time when he had been nearly finished the clean-up of the accident scene, he then became involved in his own accident that carried on until the 13th. He then described his own accident and said that it had involved a transport truck rear-ending his vehicle and pushing his vehicle into a colleague's pickup truck that had been located quite a way in front of his vehicle. Then he said that another man that had been there working for another company had been hit into the ditch, while the man had been loading a machine. In addition, Adam said he had been similarly rear-ended a year earlier while he had been in the right lane in the area of Highway 401 and Carlingview.

[25] Moreover, Adam said that when the tractor-trailer had hit his vehicle it had happened near the end of their clean-up of that earlier accident at that location. He also said that when the accident happened the clean-up was just about finished and they were nearly ready to leave the area.

[26] Adam also said that prior to being rear-ended that night, the road that he had been on had been closed with cones and a truck with a big sign board to show the traffic which direction the traffic should move over to. He also said there were flashing lights that had been used to warn approaching traffic. In addition, he said all the lights on his truck were activated and not turned off, and that the arrow had been on and was indicating a "left arrow", directing the traffic to move to the left. He also described the arrow as being seven to eight feet in the air and attached to the dump truck with a plow at the back of the dumpster. He also said the big arrow on the truck was a flashing arrow and was four feet by eight feet in size. However, he said no flares had been used.

[27] Furthermore, Adam said he had been stopped in lane #3 since 9:00 o'clock at night and that his truck had been in the same position for three hours. He also said there had been no other incidents prior to him being rear-ended.

[28] In addition, Adam said the speed limit there was 100 k.p.h.; the weather at the time was clear and there was no rain; and the traffic volume was light with no backlog at that time of night.

[29] And, as a consequence of being rear-ended by the tractor-trailer, Adam said he now suffers from headaches and also attends a chiropractor. He also said that a co-worker named Bridget had been taken to the hospital, while another person named Charles from a company named Centennial had been taken to Sunnybrook for a head injury.

[30] Furthermore, Adam said he had been sitting in the cab of his truck when he had observed the tractor-trailer that rear-ended his truck in his mirror coming for a couple of seconds, but noted that there had been no indication that it was slowing down. He also said the tractor-trailer was not moving over. He also estimated the speed of the tractor-trailer had been 100 k.p.h. He also said there were no other trucks in lane #3, except for the defendant's truck. However, he said there had been another large truck in the middle lane, but positioned a little behind the defendant's truck. In addition, he said there had been no other vehicle in front of the truck travelling in the middle lane.

(2) Summary of Bridget McConnell's testimony (employee of TW Roads Management Inc. who was sitting in a pickup truck that was situated in front of the crash truck just before the crash truck had been rear-ended by the defendant's tractor-trailer)

[31] Bridget McConnell testified she has worked for TW Road Management for nine years. She also said she had been involved in an accident that had occurred last year on September 13th. Furthermore, she said that at 6:30 p.m. she had been called out to an accident scene involving a five-ton truck and a tractor-trailer that occurred at eastbound Highway 401 and Winston Churchill.

[32] In addition, McConnell said she had assisted in closing the highway and that they had closed all the lanes. She further said that throughout the evening the accident scene was being cleaned up. She also said the right lane had been still blocked by her and Mark Adam, who was the driver of the crash or blocker truck. Moreover, she said the crash truck had been behind her to keep her safe. She also described the crash truck as being equipped with a crash cushion that Mark Adam lowers behind his truck. She further said the crash truck is for protecting her in her pickup truck and others who are there doing the clean-up.

[33] Furthermore, McConnell said she had been in the right lane beside the excavator. She also said her vehicle had been a Chevy pickup. In addition, she said the arrow board, rotating lights, and strobes were all on before the accident, which she had been involved in, had occurred.

[34] Moreover, McConnell said that it had not been the first time for her working on a highway. She also said she practices for accidents in order to protect accident scenes and to protect injured people, members of the Ontario Provincial Police, and workers from the Fire Department.

[35] McConnell also said she had been just finishing up and about to leave the scene when the accident, which she had been involved in, had occurred. In addition, she said Charles, the man from the Centennial company, had been with the excavator, and had just put the last chain on the trailer for that machine, and that she had been planning to leave the area in a minute and had been only waiting for Charles to hook up. And, just before the accident had occurred, she said that she and Mark Adam had already picked up the cones from the road and had been ready to go. She also said she had been writing notes in her book and then only remembers spinning on the highway.

[36] Furthermore, McConnell said her neck and shoulder had been injured from the accident. She also said that Mark Adam, the driver of the transport truck, and Charles, from the Centennial company, had also been injured. Furthermore, she said Charles had been thrown from the trailer into the ditch after the crash truck had hit the Centennial company truck. She also said that Charles had a gash on his head and had been incoherent.

[37] Moreover, at the time of the accident, McConnell said the traffic had been light and the weather had been clear. She also said that pylons or cones had also been put or spaced out about every three feet behind the trucks to protect the scene of the first accident that had occurred hours earlier. In addition, she said the cones were placed around and behind the first accident scene and their vehicles, up to about 100 meters behind the accident scene. She also said that the precautions, which her company uses when a road is closed, are to put out pylons and to activate the lights on their vehicles. Furthermore, she said that they also use an arrow that is 10 to 12 feet up on the crash truck and that the arrow sign is as wide as the truck, which she estimates is five to eight feet in width. She also said the cones would remain on the road for as long as the road is closed in order to warn other drivers. In addition, she said the cones were there throughout the clean-up of the first accident and that she had just picked up the cones and had gotten into her vehicle when the second accident, which had directly involved her, had occurred. She further acknowledged that there were no cones on the road at the time of the accident. Furthermore, she said all the lights on all the vehicles including the rotating lights on the crash truck were still on. As for her truck, she said the four-way emergency lights were activated on her vehicle. Moreover, she said that even after the cones had been picked up off the road, all the lights were still visible and flashing, and that the arrow board and strobe lights had remained continually on, which would have indicated that something had been going on.

(3) Summary of Jeff Owen's testimony (driver of the tractor-trailer truck that had been immediately following the defendant's tractor-trailer)

[38] Jeff Owen testified he had witnessed an accident that had occurred last year on September 13th. He also said that he had not been directly involved, nor had he been injured.

[39] Furthermore, Owen said he had been driving a tractor-trailer and following behind the defendant's truck just before reaching the City of Mississauga in the area of Winston Churchill and Highway 401. In addition, he said he had observed the accident occur when the defendant's truck did not move over for a flashing yellow arrow. He also said that he himself had slowed down to give the defendant's truck room. Furthermore, he said the defendant's truck had jackknifed and gone across three lanes. At the time, Owen said he had been about two truck-lengths behind the defendant's truck.

[40] Moreover, Owen said there is a huge bend in the road just before Winston Churchill and that he had seen the flashing lights from far back while he had been driving in the far right lane. He added that the bend in the road gave him a vantage point to observe those flashing lights that were ahead of him, which he guessed he had been able to observe at a distance of about 500 meters ahead of him.

[41] Owen also said that when he had observed the flashing lights, the flashing lights to him meant that he had to slow down and merge, and that his first reaction as a driver would be to slow down and merge away from the flashing lights. He also said he had only observed one vehicle with flashing lights. In addition, at the time that Owen had first noticed the flashing lights, he said the defendant's tractor-trailer had been directly in front of Owen's truck. He further said that he had clearly observed the flashing lights and the arrow on the truck that had been used for closing the highway.

[42] Furthermore, Owen said the speed limit is 100 k.p.h. for that area of Highway 401 and that he had been going at 103 to 104 k.p.h. However, when he had observed the flashing lights, he said he took his cruise control off and had slowed down for the hazard he knew would be ahead of him, but he said that the defendant's tractor-trailer had continued on in the same lane that Owen had been driving in. Owen then said he changed lanes from the right lane to the center lane because the flashing lights and the arrow had been in the right lane. However, Owen then clarified that after Owen had been driving in the center lane, he then moved back over to the right lane and had backed his truck off in order to allow the defendant's tractor-trailer to move into the center lane because of the hazard that would be ahead of them and because the defendant's vehicle would have had the first right of way, but Owen said the defendant's tractor-trailer did not move over into the center lane.

[43] Moreover, in explaining how Owen's maneuver would have affected the defendant, of moving from the center lane back to the right lane to allow the defendant the right of way for the center lane, Owen said that if he had remained in the center lane then the defendant might have had difficulty in merging into the center lane because the defendant would have had a hard time in judging distance because of the headlights on Owen's truck. However, despite the potential difficulty to the defendant, Owen said that the defendant could have moved over to the center lane to avoid a collision.

[44] In addition, Owen said he did not recall the defendant's tractor-trailer slowing down, nor did he see any brakes lights on the defendant's vehicle go on, nor did he see any signals from the defendant's vehicle indicating a merge into another lane.

[45] Owen also said he had observed the defendant's tractor-trailer strike the truck with the large flashing arrow after Owen said that his maneuvers of driving his truck from the right lane to the center lane and then back into the right lane had lasted about 20 seconds. Owen then said the defendant's vehicle spun in front of Owen's truck, jack-knifed, and that all three lanes were then barricaded.

[46] Furthermore, Owen said that half of a second prior to the collision, he had observed the defendant's tractor-trailer jerk left towards the center lane and assumes that had been why the defendant's vehicle had gone across all three lanes. In addition, Owen said he did not see any skid marks. He also said the collision had occurred near midnight, that there had been no fog, and that it had been clear. He further said the conditions at the time had been perfect. As for the traffic at that moment, he said it had been next to nil.

[47] In addition, Owen said his own truck did not collide with anything and that he had been able to stop his truck and not hit the defendant's tractor-trailer. He also said that diesel fuel had covered the road after the collision and that it had come from the defendant's truck. He further said that diesel fuel had leaked from the defendant's truck and that the diesel fuel had not been on the road prior to the collision. Furthermore, Owen said that his own truck had been sliding because of the diesel fuel on the road from the defendant's truck, but that Owen had been able to stop without coming into contact with any vehicles, despite the defendant's truck being in front of him. He also confirmed that he had driven through the diesel fuel leak on the road that had come from the defendant's vehicle. In addition, he said he had been able to stop his truck before the spot of the accident, and that he had stopped his truck adjacent to the flashing arrow.

[48] Moreover, Owen said that just before the collision had occurred he had been travelling behind the defendant's tractor-trailer at a distance of two truck-lengths or about a distance of 120 feet.

[49] Owen then pointed out during Owen's testimony that the driver of the tractor-trailer that had hit the crash truck had been the defendant sitting in the courtroom.

[50] In addition, prior to the collision Owen said that he had been driving in proximity to the defendant's tractor-trailer for about 15 minutes, and that during that period, Owen said he had only observed the defendant's vehicle swerve a little bit and had not observed the defendant speeding, nor driving erratically, but driving safely. He also said he did not see the defendant's tractor-trailer make any lane changes.

[51] Furthermore, Owen said he had been aware of some hazard lying ahead of him because of the signs on the crash truck. However, he said he did not observe any pylons or other markings before reaching the crash truck with the large arrow that would be a warning of the presence of a hazard on the highway. However, Owen emphasized that even without other warning signs indicating there had been a hazard ahead, he said the arrow on the crash truck had been illuminated and glowing on the highway and that it had been very clear to see. He also said he had observed the flashing lights from way back and from far away. In addition, he said that when he had merged into the center lane, the arrow had been visibly obscured by the defendant's tractor-trailer travelling in front of his own vehicle, but that while Owen had been travelling in the center lane, he said he did not sense any danger with respect to the visibility at that time.

[52] When asked if the defendant would have been facing the hazard under stress if the defendant had observed anything, Owen answered in the negative and explained that it would have been the normal stress of truck driving and that it would have been no different between a regular driver and a professional truck driver. In addition, Owen disagreed with the proposition that the defendant had made his decision under a situation of stress. Moreover, Owen said that if the circumstances would have involved a high volume of traffic or under hazardous conditions, then it could have possibly been a situation of stress. However, Owen surmised that there would not have been any stress at that hour when there was no traffic. Moreover, Owen reasoned that if the defendant would have seen the flashing lights at the same time that Owen had first seen the flashing lights, then the defendant would not have been stressed. However, Owen said the defendant had not reacted to the flashing lights until the very last second.

(B) DEFENCE WITNESS

(4) Summary of the defendant Jaroslaw Krzyzanowski's testimony (testimony given through Polish language interpreter)

[53] The defendant, Jaroslaw Krzyzanowski, testified he is a professional truck driver and had been driving trucks in Canada for 22 years. He also said that on September 13, 2012, he had been working for and employed by Nassif Transport. In addition, he said he had picked up a load earlier on September 12, 2012, and had been on his way to Montreal.

[54] Furthermore, the defendant said he had gotten into an accident between September 12th and 13th, when he had been driving in a normal fashion in the right eastbound lane of Highway 401. He also said he had collided with a vehicle that had been parked or stopped in the right lane near Winston Churchill. In addition, he described his particular trip that night, which he said he travels all the time, would have been a route from Leamington to Montreal and then back to Leamington.

[55] Prior to the collision, the defendant said he had been travelling at about 100 k.p.h. when he observed in front of him a vehicle that had been moving with yellow or orange coloured blinking lights on. However, when asked it that vehicle had indeed been moving, he answered that because the vehicle had been quite a distance away, there had been no indication whether it had been moving or not. He also said there had been no signs on the road to indicate otherwise.

[56] Furthermore, the defendant said he remembers seeing blinking lights on the truck, but did not observe any other markings on the road advising him to reduce his speed. In addition, he said he did not see that the truck had been stopped in the right lane or shoulder and had only seen the blinking lights. He also said he had observed other vehicles overtaking him in the center and left lanes. Then, when asked if he specifically recalled any specific vehicle, he answered that there had been one likely or that he thinks there had been a straight truck in front of him in the right lane. He then said that the truck that had been travelling with him then went into the center lane, but does not recall it that truck had stopped, slowed or sped up. However, he then explained that from what he had heard in the testimony that had already been given in the trial, he had heard that the driver of that truck had slowed down and had been behind him. But then when asked about the truck that had been travelling in front of him, he answered that the truck had gone into the center lane and had kept on going. And, when asked whether the truck that had gone behind him had been a truck, the defendant said that it had been most likely another truck.

[57] In addition, when asked about when he had first become aware of the truck with the flashing lights being in his lane and whether the vehicle travelling in front of him had obstructed his view, the defendant answered that he could not see clearly because of the truck that had been in front of him, and that he then realized that the truck with the flashing lights had not been moving, but had been actually stopped. At that point, he said it had been too late to do anything, but he said he had tried not to hit any other cars in the lanes beside him. Furthermore, he said he could not recall the distance between his truck and the truck that had been stopped on the highway. Moreover, at the time he had collided with the stopped truck, the defendant said he had been travelling at about 100 k.p.h. In addition, he reiterated that when he had realized the truck with the flashing lights had not been moving, but stopped, the defendant said that it had been too late to do anything.

[58] The defendant also said that his truck had been loaded with produce and vegetables, which made his load and his tractor-trailer together weigh about 78,000 pounds. He also said he had not been able to stop his vehicle before reaching the stopped vehicle that had been in front of him, so he collided with the vehicle that had been in front of him.

[59] Moreover, when asked if he had been able to change lanes, the defendant answered that he most likely could have changed lanes if there had been no vehicles beside him.

[60] In addition, the defendant said he had sustained a broken leg from the collision with the stopped vehicle. He also said he had asked if anyone had suffered injuries. He also said he does not recall any other vehicles being damaged around him, except for the one he had collided with.

[61] Furthermore, the defendant said he recalls trying to turn the engine off on his truck to make sure that it did not catch on fire.

[62] When asked what flashing amber lights on a highway meant to him, the defendant answered that this would indicate that there is a moving vehicle with a slower speed. In addition, he said that if he observes a flashing amber light, it would normally indicate that something was going on if there had been any other signage at the time accompanying it. Then when asked if flashing amber lights meant "caution" he answered affirmatively that it would mean that in a sense. He also said if he observes flashing amber lights then it would also depend on the distance that he would be back of those lights, which would then determine if it had been long enough for him to slow down or change lanes.

[63] The defendant also reiterated that he had seen the flashing lights in the distance. He also said that in the stretch of the highway where he had collided with the crash truck there had been a little bend there when approaching Winston Churchill, and that the bend had allowed him to see the flashing lights in the distance. However, he had no idea how far he had been away when he had first observed the flashing lights, since it was now difficult to say since the accident had happened two years ago. He also said it had been hard for him to judge the distance despite travelling the same route on a regular basis.

[64] In addition, the defendant said the vehicle moving beside him had been travelling at a faster speed than his vehicle, since it had overtaken his vehicle. He also said he had been travelling at a regular speed.

[65] Then when asked if he had slowed down for the flashing lights, the defendant answered in the negative and explained he had not done so because the vehicles travelling beside him and in front of him had been behaving in a normal manner and had not slowed down either. In other words, he said he did not know what had been going on, since those other vehicles had been moving at the same speed. He also explained that not every situation of seeing flashing amber lights requires slowing down and that sometimes the situation requires the need to speed up, such as when trucks leave construction sites and gas stops with flashing lights. Furthermore, he said that sometimes one has to change lanes and speed up.

[66] Moreover, the defendant said the transport truck travelling in front of him had not slowed down or sped up and had only changed lanes at the last moment. He also said he recalls other vehicles had been moving in the center or left lane.

[67] In addition, the defendant said he could not clearly see the flashing amber light. He then said he had observed the flashing lights, but did not see the truck stopped there in his lane. He also said there had been nothing indicating to him that anything had been going on ahead of him on the highway, since there had been no signage, which indicated that something had been going on. He further said he had tried to observe what those flashing lights were for, but did not observe what those lights had been for.

[68] Then, when asked why he did not slow down or take precautions after seeing the flashing amber lights, the defendant repeated that the vehicle in front of him had not taken precautions either.

5. ISSUES

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

(a) Did the removal of the safety cones by the contractors working for the Ministry of Transportation prevent the defendant from seeing the crash truck that was equipped with flashing amber lights and a large illuminated arrow?

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

(d) Has the defendant's testimony been credible that there had been a truck travelling immediately in front of the defendant's tractor-trailer in the right lane and that there had been vehicles travelling in the center lane beside him just before the accident occurred?

6. RELEVANT LAW

[70] 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:

130. 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

[71] To reiterate, 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.).

[72] Furthermore, in the seminal case of 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. The test 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.

[73] 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 – it must also be a breach of a duty to the public and deserving of punishment.

[74] In addition, as this court had summarized in R. v. Cianchino, [2010] O.J. No. 3162 (QL), at para. 91, it is suitable in a case where there are allegations of negligent driving 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. This risk analysis framework had been developed by Todd Archibald, Kenneth Jull, and Kent Roach in their textbook entitled, "Regulatory And Corporate Liability: From Due Diligence To Risk Management" (Aurora, Ontario: Canada Law Book Inc., 2007). It was also designed as a tool for analyzing strict liability offences. 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; while for the second stage of considering whether any due diligence defence had been made out by the accused, the "management of that risk" is evaluated. Furthermore, when the actus reus of the offence in question 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 the 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 by the accused 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 to avoid committing the offence:

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.

[75] 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.

[76] With respect to the case at bar and the first stage of the inquiry of whether the prosecution has proven the actus reus of the careless driving offence beyond a reasonable doubt, the prosecution contends that it has met its burden, and bases this on the defendant's driving conduct that led up to the collision. In particular, the prosecution submits that the defendant had observed and been aware of the flashing amber lights from quite a distance away, but did not reduce the speed of his tractor-trailer prior to the collision but continued travelling at 100 k.p.h. until the collision occurred; nor did the defendant change lanes or signal his intention to change lanes or apply his brakes at any point after the defendant had observed and been aware of the amber lights that were flashing ahead of him. Furthermore, the prosecution submits there had been no fog, weather conditions, or vehicles travelling in front of the defendant's truck to block or obscure the defendant's view of the crash truck with the large illuminated arrow sign pointing to the left, nor had there been any vehicles in the center lane beside the defendant's truck to prevent the defendant from changing lanes into the center lane as indicated by the large illuminated arrow, just before the collision occurred. In addition, the prosecution submits that in respect to the defendant's argument that the defendant had not been aware that he had to slow down or that the crash truck had actually been stopped in the right lane because the safety cones, which would have provided a warning of the hazard, had been removed and is the ultimate cause of the accident, that common sense should prevail over the defendant's contention, since a large illuminated and glowing arrow sign would be more visible at night as a warning sign than safety cones placed in the right lane, covering a distance of 100 meters before the location of the crash truck.

[77] The prosecution also contends that the defendant's testimony in regards to the presence of a truck travelling in the right lane immediately in front of the defendant's tractor-trailer and vehicles travelling in the center lane beside the defendant's tractor-trailer just before the accident occurred is self-serving and not credible, considering that the defendant's testimony contradicts the testimony and observations of Mark Adam who had seen the defendant's vehicle approach Adam's crash truck from the rear for approximately two seconds and did not see the defendant's vehicle attempt to change lanes or slow down. Adam also said that just before the accident had occurred he had not observed any other trucks travelling in the right lane except for the defendant's truck; while for the center lane, Adam said he had observed a large truck travelling in the center lane, but it had been travelling behind the defendant's vehicle. In addition, Adam said there had been no vehicles travelling in front of the large truck that he had observed in the center lane, which had been travelling behind the defendant's truck. Furthermore, the prosecution submits that the defendant's testimony has been inconsistent in respect to the presence of vehicles in the vicinity of the defendant's tractor-trailer, as the defendant had first testified that there were no vehicles travelling beside his tractor-trailer, but then later testified there were.

[78] However, in his defence to the careless driving charge, the defendant contends that he is being blamed for the accident even though the accident had occurred as the result of the workers removing the safety cones and other signs or markings that had been used to warn motorists of the hazard lying ahead. He also contends that the truck travelling immediately in front of the defendant's tractor-trailer in the right lane had swerved at the last moment into the center lane so that the defendant did not become aware until that last moment that the crash truck had been actually stopped in the right lane, and as such, he could not avoid hitting the crash truck. Furthermore, in answer to why he did not move his tractor-trailer into the center lane the defendant contends that he could not move over to the center lane because there were other vehicles that had been travelling beside him in that lane.

(A) What Do Flashing Amber Lights Mean?

[79] Generally, the presence of flashing amber lights on a highway is an indication or warning of the existence of a hazard or potential hazard. However, flashing amber lights that are not part of an automated traffic light system or pedestrian crossing warning system under s. 144(17) place no legal obligation on a motorist in Ontario under the Highway Traffic Act to act in particular way. But, if the flashing lights used on vehicles are red or red and blue in colour, then, for example, s. 159 of the Highway Traffic Act does place a legal obligation on motorists to act in a certain way. Specifically, s. 159 requires motorists to slow down if necessary and proceed with caution or to change lanes and move away from emergency vehicles with the flashing red or red and blue lights if the emergency vehicle is either stopped in a lane or on the shoulder:

Flashing amber

144(17) Every driver approaching a traffic control signal showing a flashing circular amber indication and facing the indication may proceed with caution.

Approaching, following emergency vehicles

Stop on approach of vehicle with flashing lights or bell or siren sounding

159(1) The driver of a vehicle, upon the approach of a police department vehicle with its bell or siren sounding or with its lamp producing intermittent flashes of red light or red and blue light, or upon the approach of an ambulance, fire department vehicle or public utility emergency vehicle with its bell or siren sounding or its lamp producing intermittent flashes of red light, shall immediately bring such vehicle to a standstill,

(a) as near as is practicable to the right-hand curb or edge of the roadway and parallel therewith and clear of any intersection; or

(b) when on a roadway having more than two lanes for traffic and designated for the use of one-way traffic, as near as is practicable to the nearest curb or edge of the roadway and parallel therewith and clear of any intersection.

Slow down on approaching stopped emergency vehicle

(2) Upon approaching an emergency vehicle with its lamp producing intermittent flashes of red light or red and blue light that is stopped on a highway, the driver of a vehicle travelling on the same side of the highway shall slow down and proceed with caution, having due regard for traffic on and the conditions of the highway and the weather, to ensure that the driver does not collide with the emergency vehicle or endanger any person outside of the emergency vehicle.

Same

(3) Upon approaching an emergency vehicle with its lamp producing intermittent flashes of red light or red and blue light that is stopped on a highway with two or more lanes of traffic on the same side of the highway as the side on which the emergency vehicle is stopped, the driver of a vehicle travelling in the same lane that the emergency vehicle is stopped in or in a lane that is adjacent to the emergency vehicle, in addition to slowing down and proceeding with caution as required by subsection (2), shall move into another lane if the movement can be made in safety.

Following fire department vehicle

(4) No driver of a vehicle shall follow in any lane of a roadway at a distance of less than 150 metres a fire department vehicle responding to an alarm.

Same

(5) Nothing in subsection (2) or (3) prevents a driver from stopping his or her vehicle and not passing the stopped emergency vehicle if stopping can be done in safety and is not otherwise prohibited by law.

[80] On the other hand, even though the presence of flashing amber lights, which are activated on vehicles that are situated on a highway or on the shoulder of a highway, do not place any legal obligation on a motorist to act in a certain way, virtually all vehicles are equipped with emergency hazard lights that can be turned on for the purpose of warning other motorists that the vehicle is stopped or moving slowly, and serves as a warning and notice that the vehicle may be a hazard or poses a hazard to other users of the road. In addition, flashing amber lights are generally used on construction or utility vehicles to warn others of their presence and that their presence on a highway may be a hazard or a potential hazard. Therefore, because most vehicles are equipped with hazard lights that can be turned on for use as a warning system, then most motorists would be familiar with and be aware that when flashing amber or flashing red lights are activated on vehicles, they are used to warn others about a hazard or a potential hazard, and that it would also serve as a notice to drive with caution. And, as a professional truck driver with 22 years of experience in Canada, the defendant would certainly be aware, as most motorists would be, of the meaning of flashing amber lights that have been activated on a vehicle that is situated on a highway, and would know or ought to know about driving with caution before reaching the location of the flashing amber lights.

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

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

[82] 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 and attention in driving or driving without reasonable consideration for other persons using the highway could be inferred from the conduct of the defendant, as judged by the standard of a reasonable person in similar circumstances. In short, would a reasonable person in similar circumstances facing the defendant have acted as the defendant did?

(i) Was there a truck travelling immediately in front of the defendant's tractor-trailer in the right lane and vehicles travelling in the center lane beside the defendant's tractor-trailer just before the accident occurred?

[83] The defendant contends that he had been unable to avoid the accident because there had been a truck driving immediately in front of his tractor-trailer in the right lane and that his view of the crash truck had been blocked by this truck, and that he had not realized the crash truck had been actually stopped in the right lane until the truck in front of him had swerved from the right lane into the center lane at the last moment, revealing the presence of the crash truck. In addition, the defendant testified that he could not move into the center lane because there had been vehicles there in the center lane travelling beside his tractor-trailer. The prosecution on the other hand argues that the defendant had been inconsistent in his testimony about the existence of these vehicles around his tractor-trailer before the accident had occurred, by first testifying that there were no vehicles around his vehicle and then testifying that there were vehicles.

[84] In respect to the prosecution's argument that the defendant's testimony had been unreliable and inconsistent about the existence of a truck travelling in front of the defendant in the right lane or vehicles travelling beside the defendant's tractor-trailer in the center lane, just before the accident occurred, I concur with the prosecution's position. The defendant had been asked in examination-in-chief when he was testifying about seeing vehicles pass him in the center and left lanes if he had recalled any specific vehicle, in which the defendant had answered, there was "likely a straight truck in front of me in right lane." Then when asked if the vehicle had been in front and in the right lane the defendant responded, "Yes, I think so." These particular responses by the defendant in respect to a crucial and important fact at issue appear to be initially guesses by the defendant in which the defendant did not appear to be certain about the existence of a truck travelling immediately in front of the defendant in the right lane just before the accident. It was only after the defendant kept being asked about what that truck travelling in front of him had done just before the accident, that the defendant became more certain in his responses about the existence of the truck travelling immediately to the front of the defendant's tractor-trailer in the right lane.

[85] In respect to Mark Adam's and Jeff Owen's testimony and the determination of whether there were any vehicles travelling immediately around the defendant's tractor-trailer just before the accident, especially whether there had been a truck travelling immediately in front of the defendant's tractor-trailer in the right lane and whether there were any vehicles travelling beside the defendant's tractor-trailer in the center lane, Mark Adam had testified that he did not observe any trucks travelling in the right lane except for the defendant's tractor-trailer and that he only observed a large truck in the center lane that had been travelling behind the defendant's tractor-trailer. Also, Adam testified that he did not observe any vehicles travelling in the center lane in front of the large truck that he had observed in the center lane travelling behind the defendant's vehicle. Furthermore, Jeff Owen, who had been travelling approximately two truck lengths behind the defendant's tractor-trailer when the accident occurred and who testified to observing the accident, had testified that the volume of traffic at that time of the night was virtually nil. Moreover, Owen did not specifically testify as to observing a truck immediately in front of the defendant's tractor-trailer in the right lane swerve from the right lane into the center lane, just before the defendant's tractor-trailer collided with the crash truck. In addition, Owen said he had moved his vehicle from the center lane into the right lane so that the defendant's tractor-trailer could move into the center lane. However, Owen did not testify that the defendant could not then move into the center lane because there had been vehicles in the center lane beside the defendant's tractor-trailer. Instead, Owen testified that the defendant's tractor-trailer could have moved into the center lane, but had not done so.

[86] Ergo, I do not find that there had been a truck travelling immediately in front of the defendant's tractor-trailer in the right lane or that there had been vehicles travelling beside the defendant's tractor-trailer in the center lane just before the accident occurred. I base this conclusion on both Mark Adam's and Jeff Owen's testimony, which I find have been credible.

[87] Accordingly, I do not accept, nor do I find the defendant's testimony to be credible that there had been a truck travelling immediately in front of the defendant's tractor-trailer in the right lane immediately before the accident occurred, which would have blocked the defendant's view of the crash truck, or that there had been vehicles in the center lane travelling beside the defendant's tractor-trailer just before the collision had occurred that had prevented the defendant from moving his tractor-trailer into the center lane from the right lane, since it is inconsistent with and contradicts both Mark Adam's and Jeff Owen's testimony. Also, in deciding on the credibility of the defendant's testimony on the existence of a truck travelling immediately in front of the defendant in the right lane, I have also considered that the defendant had been testifying through a Polish language interpreter.

(ii) Was the accident foreseeable and had the defendant's driving conduct fallen below the standard of a reasonable person in similar circumstances?

[88] Based on the following evidence, I find that the prosecution has met its burden in proving that the defendant's driving just before the accident occurred fell below the standard of a reasonably prudent motorist facing similar circumstances as the defendant. In addition, the consequences of an accident occurring was reasonably foreseeable since a motorist who observes flashing amber lights from a far away distance and whose view and visibility has not been obstructed by weather or other vehicles, but who fails to change lanes or slow down, but keeps travelling at a speed of at least 100 k.p.h. in the same lane as the vehicle displaying a large illuminated and glowing arrow sign and flashing amber lights had been stopped in, and then drives into the rear of that vehicle without having applied his brakes, had not been driving as reasonable person would have for the same circumstances. As such, the defendant had not been driving with due care and attention, nor had the defendant been driving with reasonable consideration for others using the highway.

[89] The evidence that supports my conclusion is based on the credible testimony of Mark Adam, the driver of the crash truck that had been stopped in the right lane. Adam had testified that he had observed the defendant's tractor-trailer for two seconds driving towards his stopped crash truck, in which the large illuminated arrow attached to the rear of the crash truck was still operating, as well as the flashing amber lights on the crash truck were illuminated, and had noticed that the tractor-trailer was not slowing down or changing lanes before it struck Adam's crash truck.

[90] In addition, I also base my finding on the credible testimony of Jeff Owen, in which Owen had testified that he had been driving immediately behind the defendant's tractor-trailer at a distance of about 120 feet or two truck lengths behind the defendant's tractor-trailer. Owen had also said he had noticed the flashing amber lights about 500 meters ahead of his position because of the curve in the road. He then said he had moved his truck from the right lane into the center lane, but then moved back to the right lane to allow the defendant's tractor-trailer to move into the center lane because of the flashing lights ahead. Owen also said the lane maneuvers that he did after he had observed the flashing lights in the distance had taken approximately 20 seconds. However, Owen said the defendant's tractor-trailer did not change lanes, nor did Owen observe any signal on the defendant's tractor-trailer indicating the intention to change lanes from the right lane to the center lane, but had observed the defendant's tractor-trailer continue driving in the right lane where the flashing amber lights were located. The defendant had also testified to seeing those flashing amber lights from quite a distance away because of the bend in the road. Then, just a half-second before the collision, Owen said he had observed the defendant's tractor-trailer suddenly move towards the center lane, but had then collided with the crash truck. Owen also said in respect to the defendant's tractor-trailer that Owen did not observe any brake lights come on at any point, nor did Owen observe the defendant's tractor-trailer slow down after Owen had noticed those flashing lights located 500 meters ahead of him, but Owen testified that the defendant's tractor-trailer kept travelling at a speed of at least 100 k.p.h. Furthermore, the defendant had also confirmed that he had kept travelling at a speed of 100 k.p.h. until he collided with the crash truck.

[91] Moreover, Jeff Owen said the weather had been clear, there had been no rain or fog, and that the roads were dry that evening. Owen also said the traffic had been next to nil at the time of the accident.

[92] Therefore, the evidence shows that the flashing lights were visible at least 500 meters away and that both Jeff Owen and the defendant had been able to observe the flashing amber lights situated ahead of them because of a curve in the road. In addition, Owen had observed that the defendant's tractor-trailer did not change lanes or signal an intention to change lanes from the right lane into the center lane, but kept driving in the right lane in which the crash truck had been stopped; the defendant's tractor-trailer did not slow down but kept travelling at a speed of at least 100 k.p.h.; and that Owen did not see any brake lights on the defendant's tractor-trailer go on from the time Owen had observed the flashing lights to the point of the collision while Owen was following the defendant's tractor-trailer. Furthermore, the crash truck's flashing amber lights had been still engaged and operating at the time of the accident. In addition, the crash truck had been equipped with a large arrow sign at its rear, which had been also illuminated, glowing, and pointing to the left. Moreover, all the vehicles involved in the clean-up and road repair still had their flashing lights operating and illuminated while the crash truck had been stopped in the right lane.

[93] In addition, the large four feet by eight feet illuminated and glowing arrow sign had been pointing to the left, directing motorists to move their vehicle over to the center lane, which was the lane to the left of the lane in which the crash truck had been stopped in. As such, a reasonable and prudent driver who observes flashing lights situated ahead would be alerted to a potential hazard ahead and would be driving cautiously until passing those flashing lights, which would include slowing down or, if possible, changing lanes to move away from the lane where the hazard was located, and not drive into the back of a crash truck that had an illuminated and glowing large arrow pointing to the left, as well as flashing amber lights that had been illuminated and visible from quite a distance away.

[94] Furthermore, it had been around midnight and flashing amber lights would have been easily visible and glowing at that time of the evening, especially in contrast to the surrounding darkness of the area where the crash truck had been situated.

[95] Moreover, I do not find that there had been another truck driving immediately in front of the defendant's tractor-trailer in the right lane, just before the collision had occurred, to block the defendant's view or visibility of the crash truck. I also do not find that there had been any vehicles travelling in the center lane beside the defendant's tractor-trailer just before the accident had occurred, to prevent the defendant from changing lanes from the right lane to the center lane. The only evidence that such a truck or vehicles existed had come from the defendant's testimony, which I find self-serving and not reliable. Furthermore, Jeff Owen, who had been travelling two truck lengths behind the defendant's tractor-trailer had testified to seeing the accident, but did not testify to particularly observing a truck travelling in front of the defendant's tractor-trailer swerving at the last second from the right lane into the center lane. In addition, Mark Adam, the driver of the crash truck, had also not testified to observing any vehicles in the center lane travelling beside the defendant, but had observed a large truck in the center lane travelling behind the defendant's tractor-trailer just before the collision occurred. Adam also did not testify about seeing a truck travelling immediately in front of the defendant's tractor-trailer in the right lane suddenly swerve at the last moment from the right lane into the center lane just before Adam's crash truck had been struck by the defendant's tractor-trailer. Moreover, Adam had testified that while looking in his rear view mirror he had observed the defendant's tractor-trailer for two seconds coming towards the crash truck from behind and that the defendant's tractor-trailer was not slowing down or changing lanes.

[96] Therefore, because of the following circumstances, which includes the low volume of traffic travelling eastbound on Highway 401, just before the Winston Churchill Boulevard exit, when the accident occurred; the dark evening sky which would make the flashing amber lights illuminated on the vehicles involved in the clean-up and repair of the road be observable from at least 500 meters away; the crash truck having its flashing amber lights illuminated, as well as the large four feet by eight feet arrow sign on the crash truck being illuminated and directing motorists to move over to the center lane and that would have also acted as a visible warning of a potential hazard ahead; the defendant having observed the flashing lights from a distance back and being aware of the flashing lights situated ahead of him; the defendant's view and visibility of the crash truck had not been blocked by other vehicles or affected by weather; the defendant's tractor-trailer not slowing down or moving into the center lane or signaling an intention to change lanes from the right lane to the center lane after the flashing lights were observed by the defendant through a curve in the road, which had been at least 500 meters away; the road surface being dry; the defendant having had more than 20 seconds to react to the illuminated arrow sign that had been visible to eastbound motorists, but had failed to change lanes or slow down; the defendant's tractor-trailer then colliding with the crash truck with the illuminated and flashing four feet by eight feet arrow sign; and the lack of brake lights on the defendant's tractor-trailer being seen going on just before the collision and the lack of skid marks from the defendant's tractor-trailer, nor any brake lights being observed on the defendant's tractor-trailer going on after Jeff Owen had first seen the flashing lights from quite a distance away, I find that the defendant had committed the actus reus of the offence beyond a reasonable doubt.

[97] Moreover, I find that the defendant would have had sufficient time and distance to react to the flashing amber lights and illuminated arrow sign warning of the hazard and the presence of the crash truck being stopped in the right lane, by changing lanes or slowing down, and because the defendant failed to do so, then the defendant had driven below the standard of a reasonable motorist in similar circumstances.

[98] Accordingly, I find the prosecution has proven beyond a reasonable doubt the actus reus of the offence that the defendant had been driving without due care and attention and without reasonable consideration for others using the highway in the early minutes of September 13, 2012, on the eastbound lanes of Highway 401, just before the Winston Churchill Boulevard exit, in the City of Mississauga, when he drove into the rear of the crash truck.

(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?

[99] For the second stage of the inquiry, the burden is now on the defendant to prove on a balance of probabilities that he had taken all reasonable steps for the circumstances to avoid the particular event, or that he had been relying on a mistaken set of facts if true would render the act innocent, since the prosecution has proven that the defendant has committed the actus reus of the offence beyond a reasonable doubt.

[100] For his due diligence defence, the defendant contends he had been driving normally and safely before the accident had occurred and is being blamed for the accident even though the accident was caused by the workers removing the safety cones and other warning signs of the hazard a minute before the accident had occurred.

[101] In addition, the defendant contends that he had not been aware that the crash truck had been stopped in the right lane because there had been no warning signs on the road telling him to slow down or reduce his speed or that had indicated there had been a crash truck stopped in the right lane, and that the defendant did not become aware of the crash truck being stopped in the right lane until the so-called truck driving immediately in front of his tractor-trailer in the right lane, which had been blocking his view of the crash truck, had swerved from the right lane into the center lane at the last moment and revealed the presence of the crash truck stopped in the right lane. However, by the time he became aware of the crash truck being stopped in the right lane, the defendant contends that he did not have enough time to react in order to avoid colliding with the crash truck.

[102] Moreover, the defendant contends that he could not move his tractor-trailer into the center lane because there had been vehicles travelling in the center lane beside his tractor-trailer just before the collision occurred. In addition, the defendant said he did not slow down or take precautions after seeing the flashing amber lights because the vehicle in front of him had not taken any precautions either.

[103] In response, the prosecution submits that the defendant's contention contradicts common sense, since drivers in Ontario upon seeing flashing amber lights would slow down or take precautions. Moreover, the prosecution contends that the large illuminated arrow sign and flashing amber lights on the crash truck would be visible from quite a distance away and the absence of safety cones situated on the highway west of the crash truck would not have prevented the defendant from seeing the stopped crash truck with the large illuminated arrow sign and flashing amber lights.

[104] Ergo, has the defendant proven that he took all reasonable steps for the circumstances to avoid the committing the careless driving offence?

(i) Did the removal of the safety cones from the road by the workers a minute before the accident occurred prevent the defendant from observing the crash truck that had been stopped in the right lane?

[105] The defendant also submits that he had been driving normally and safely and that his safe driving is supported by Jeff Owen's testimony, in which Owen said he had been driving in proximity to the defendant's tractor-trailer for about 15 minutes, and during that period, Owen said he had only observed the defendant's vehicle swerve a little bit and had not observed the defendant speeding, nor driving erratically, but driving safely. However, after Owen had observed the flashing amber lights from quite a distance away, Owen also did not observe the defendant take any precautionary steps in respect to the flashing amber lights or take any reasonable steps to avoid colliding with the crash truck, such as changing lanes, signalling an intention to change lanes, braking, or slowing down.

[106] And, hypothetically, if there would have been a truck travelling immediately in front of the defendant's tractor-trailer in the right lane which obscured or blocked the defendant's view of the crash truck, then this suggested scenario would also indicate that the defendant had been following this preceding truck too closely, if the defendant did not have enough time to react and avoid colliding with the crash truck. This would then contradict the defendant's contention that he had been driving normally and safely, if he did not have time to react to the stopped crash truck because of the truck driving in front of his tractor-trailer had swerved into the center lane at the last moment and revealed the presence of the crash truck. A reasonable and prudent driver would take into account the ability to properly stop or react to a sudden hazard by not following a vehicle ahead of them too closely. Moreover, the defendant had been aware of the flashing amber lights from quite a distance back and if he had been following a vehicle in front of him too closely, then the defendant would not have been driving with caution or all reasonable care, since the defendant would not have taken the flashing amber lights into consideration, which ought to have made him aware of a hazard or potential hazard being ahead of him, because he had not adjusted his truck's following distance appropriately from the so-called preceding truck in order to be able to properly stop in case of a sudden event occurring.

[107] However, as I earlier concluded, I did not find that there had been a truck travelling immediately in front of the defendant's vehicle in the right lane just before the collision occurred, nor had there been any vehicles in the center lane travelling beside the defendant's tractor-trailer, in light of Mark Adam's and Jeff's Owen's credible testimony. As such, I do not accept the defendant's testimony that there had been a truck travelling in front of the defendant's tractor-trailer, nor do I accept that there had been vehicles travelling in the center lane beside the defendant's tractor-trailer just before the collision occurred.

[108] In addition, illuminated flashing lights and a large flashing arrow sign that can be seen from quite a distance away would be more visible and carry more warning of an upcoming hazard at that particular time in the evening than the safety cones that had been evenly placed on the road west of the stopped crash truck for a distance of 100 meters. Moreover, because I have concluded that there had been no truck travelling immediately in front of the defendant's tractor trailer in the right lane and blocking the defendant's view of the crash truck, it is not logical that the defendant had not been aware of the crash truck being stopped in the right lane because of the safety cones being removed just before the collision, when the crash truck itself had been equipped with flashing amber lights and a large arrow sign, which had been activated and operating at the time of the accident, and been visible from quite a distance away.

[109] Furthermore, the defendant's testimony that he could not move into the center lane just before the collision had occurred because there had been vehicles travelling in the center lane beside his tractor-trailer is not credible, but self-serving, contrived, and is inconsistent with the testimony of Mark Adam and Jeff Owen.

[110] Moreover, Jeff Owen testified that after Owen had first observed the flashing lights, Owen said that up to the point of the collision Owen did not observe the defendant's tractor-trailer slow down, but had observed the defendant's tractor-trailer continue travelling at a speed of at least 100 k.p.h.; nor did Owen observe brake lights be activated on the defendant's tractor-trailer; nor did Owen see the defendant's tractor-trailer move to the center lane or a signal on the defendant's tractor-trailer indicating an intention to move into the center lane. In addition, Owen said that when he had moved his truck from the right lane to the center lane because of seeing the flashing lights, and then moved back from the center lane into the right lane to allow the defendant's tractor-trailer to move into the center lane, Owen's lane maneuvers had taken about 20 seconds. These 20 seconds would have been more than sufficient time for the defendant to take the precautionary step of changing lanes to avoid the crash truck stopped in the right lane.

[111] Consequently, I find the defendant's testimony not to be logical, consistent, or plausible, especially in respect to the presence of vehicles travelling in front and beside his tractor-trailer at the critical time. Therefore, I find that the defendant's credibility is lacking, and as such, the defendant's testimony about there being vehicles around his tractor-trailer just before the accident occurred is not credible. 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 on a balance of probabilities that 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.

[112] In sum, the defendant did not take all reasonable steps in the circumstances to avoid committing the offence. In other words, once the defendant had observed the flashing amber lights from a distance back, the defendant did not take any steps to avoid colliding with the crash truck that had been stopped in the right lane and which had its flashing lights engaged and its large arrow sign illuminated. The defendant could have easily slowed down or moved into the center lane, considering there had been no vehicles travelling beside his vehicle in the center lane and there had been sufficient distance and time to observe and react to the large illuminated arrow sign directing traffic away from the right lane, since there had been no weather or vehicles travelling immediately in front of the defendant's tractor-trailer that would have hindered or obstructed the defendant's view of the crash truck.

8. DISPOSITION

[113] 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, Jaroslaw Krzyzanowski, has committed the offence of "careless driving", contrary to s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8. A conviction will be entered against Jaroslaw Krzyzanowski.

Dated at the City of Mississauga on September 12, 2014.

QUON J.P.

Ontario Court of Justice