Court File and Parties

Court File No.: 13024 Date: November 20, 2014 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Dale Eastman

Before: Justice of the Peace Zeljana Radulovic

Heard on: May 21, 22, 23, 2014 and July 30, 2014

Reasons for Judgment released on: November 20, 2014

Counsel:

B. Pillon for the prosecution
B. Gratl, Counsel for the defendant Dale Eastman

JUSTICE OF THE PEACE ZELJANA RADULOVIC:

Charge and Allegations

[1] The Defendant Dale Eastman has been charged with careless driving contrary to Section 130 of the Highway Traffic Act. It has been alleged that on September 4th, 2012 in the City of Waterloo in the West Region he did drive a motor vehicle on King Street North and did drive carelessly, and therefore did act contrary to Section 130 of the Highway Traffic Act.

[2] The Prosecutor is alleging that Defendant operated a motor vehicle on the date in question without due care and attention and as a result of this motor accident with one fatality occurred.

[3] Mr. Pillon for the Municipality Prosecution filed in a form of Crown's Book of Authorities and Crown's Supplemental Book of Authorities following case law:

Court also considered closing submissions made by Mr. Pillon for the Prosecution and Ms. Gratl for the Defendant.

Evidence Before the Court

[4] THE EVIDENCE BEFORE THE COURT:

Court has heard from Police Constable Shawn Keller who is a level four collision reconstructionist, eye witnesses Mark Forte, Loni Hardy, Berlinie Tuong, Minie Sayadeth, Mary Sayadeth, Officer Dan Cooper, Detective Jennifer Brooks and Mohammad Golmakani.

The Defendant testified on this trial. The Counsel for the Defendant did not call any other witness for defence.

Court also received as demonstrative evidence: Total Station Project Data sheet marked as Exhibit 1; Scale diagram of scene marked as Exhibit 2; Scene Sketch marked by witness Mark Forte marked as Exhibit 3; Photo of truck in question made by Mark Forte, marked as Exhibit 4; Scene Sketch as marked by witness Loni Hardy, marked as Exhibit 5; Scene sketch made in error by witness Berlinie Tuong; marked as Exhibit 6A and Correct scene sketch as marked by witness Berlinie Tuong, marked as Exhibit 6B; Scene Sketch as marked by witness Minie Sayadeth, marked as Exhibit 7; Scene Sketch as marked by witness Mary Sayadeth, marked as Exhibit 8; Fourteen pages of photographs of the scene, victim and truck in question, marked as Exhibit 9A to M; photograph sheet 15 of 21, marked as Exhibit 10; three photographs taken of site of Bank of Montreal, marked as Exhibit 11A to C filed by the Defence through cross examination; Enlargement of photographs marked as Exhibits 9A through M, marked as Exhibit 12A to O.

Witness Testimony

Constable Shawn Keller - Collision Reconstructionist

[5] Constable Shawn Keller as level four collisions reconstructionist stated that on September 4, 2012 approximately at 10:41 a.m. he arrived on scene of accident at intersection Kings Street and Hickory Street in the City of Waterloo. He was assigned by Sergeant Richardson to be the lead investigator on the collision in which the truck struck the pedestrian and who died as result of that. When he arrived the pedestrian was laying on the highway. He further stated that there were already on the scene number of officers from WRP. He was briefed by Sergeant Richardson what had occurred prior his arrival and he had foundation to start investigation of the accident on the intersection of King Street and Hickory Street.

In cross examination he stated that through the course of his investigation he learned the identity of the driver and motor vehicle involved in this accident. It was day light and when he arrived on scene it was raining quite heavily. As lead investigator he did all the fieldwork. Further his duty as lead investigator was to put the package or case together for the crown, but because he was off ill the crown package was put later by another officer.

When he arrived at the scene he observed a body that was covered by a sheet in lane number one of the southbound lanes of King St. North, just south of Hickory Street. He observed that the body was in the lane number one, or the left lane of the southbound traffic on King street and it was just south of the crosswalk. However he hasn't seen the truck on the scene. He never inspected the truck involved in the accident with pedestrian.

After taking a look at the entire scene he used markers to mark the evidence that was on the roadway prior to doing a scale diagram of the scene. With the assistance of Constable Nieman he placed markers-plastic cones on King Street marking the evidence. He observed and marked following evidence on the scene: flesh fragments in lane one on the southbound lane of King Street that were marked indicating the path of travel of the body and the vehicle. He explained that some of the flesh fragments were actually quite a distance from the body, more south from the body indicating that they had either fallen off, or dropped off the vehicle that was involved. He also observed and marked in that lane a hearing aid that was more in close proximity to the body, as well some fragments of wood.

Once the evidence and the final rest of the body is all marked he then proceeded to set up the Total Station Equipment. He explained that that piece of equipment is used to survey the scene and make a scale diagram from all the point that are collected at the scene which can be put into the software called Crash Zone. The scale diagram is made to give an accurate representation of the scene. He in detail explained how that equipment works and how he did set up the equipment on the scene. He was fully satisfied that equipment was in proper working order by checking monument number one and monument number two. He in detail explained the procedure he performed to be satisfied that equipment was in proper working order.

Using Total Station Equipment he shoot the entire intersection where accident occurred including the lanes of King Street North and the lanes of Hickory Street with the crosswalks, the roadway evidence consisting of the final rest of the body, the flesh pieces that were found, the hearing aid and the wood pieces. Collected data from the scene is downloaded and put into the programme called Crash Zone and diagram of the accident scene has been formed.

When presented with a diagram, which was marked as Exhibit #2 on consent, officer confirmed that that is a scale diagram depicting an accurate representation of the intersection and the scene where incident took place on September 4, 2012. He further stated that the body of the victim is displayed on the diagram, exactly as he observed it when he arrived at the scene. He further explained that prior to the body being removed markers were placed where the head and the feet would be so that he can place a body on the diagram indicating the position.

Explaining the position of the body on the diagram he stated that the body of the pedestrian is totally positioned within the lane number one, and the head is pointing in a southwest position and the feet are in a northeast position. He further stated that marked red dots on the diagram are body material like fat pieces and skin flesh.

In cross-examination he stated that he observed himself the pieces of the human body from the victim on the road and confirmed that those pieces are presented as a red dots on the diagram. Referring to scale diagram he confirmed that diagram was drawn by Constable Stotts because he was off ill. The diagram is accurate depiction what he observed at the scene and what was shoot using Total station Equipment.

Officer explained that common practice is not to enter measurements on the diagram because there are hundreds of points of the scene that are shoot to make the scene and there is physically impossible to put measurement of every points on the diagram. He further explained that only level three and four reconstructionist in the traffic branch would do the scale diagram.

He further stated, referring to Exhibit #1 marked as the Total Station data, that Total Station project date sheet is a parts of his notes which consist the date, location and the serial numbers of the devices that were used with couple of distances that are marked on the sheet as well as reference points. The purpose of Total Station data is to get a step by step process in order to do not miss anything during the set up.

Referring to his notes he stated that at 11:17 a.m. the coroner Dr. Kim arrived on scene and approximately at 11:25 a.m. the identification branch took the photographs of the female's body that was on the scene. He stated that he observed that body on the scene suffered trauma to the abdomen and chest area because the body was discontented and misshaped. There were tire marks evident on the abdomen area and right across the torso and the right arm of the victim's body. He noticed the umbrella that was shattered in pieces that was beside the female's body as well. He observed that victim was not alive, there was no breaths being made. He further stated that victim was laying down on the scene for quite some time prior to his arrival.

Through the course of his investigation he learned the identity of the victim as well that she was living in close proximity to the scene of accident. He further stated that Detective Constable Jennifer Brooks, as the forensic identification officer, took all the photographs on the scene.

While he was at the scene he watched the traffic lights and they appeared to be in proper working order. He also checked, since there was a pedestrian involved, the pedestrian crossing signals and found out they are also functioning properly. He explained that he checked the eastbound side of the pedestrian signals, which was location where the pedestrian had come from. The pedestrian was travelling eastbound. He checked the signal that she would have been facing by pressing the button. He explained that when the walking signal come up it was approximately 10 seconds long before it would change to the flashing hand. He did not count how many cycles of blinking hand where but he was sure there were couple of signals two or three. Based on his observation he concluded that signal was in proper working order and it was clearly visible.

The intersection was controlled by traffic lights. The lights that drivers would have seen on that intersection were in proper working order. In cross-examination he confirmed that he was last person on the scene, and prior he left the scene he observed the traffic lights and pedestrian lights to confirm they are in proper working order. He was satisfied that all the lights were working properly.

He also explained that there is a crosswalks on that intersection painted with white lines. For the most part the lines were in good condition and they were visible to drivers and pedestrians. They were no potholes or cracks on the road that would be significant enough to cause collision. He confirmed that crosswalks as appearing on the diagram are accurate representation of the crosswalk as he saw them and they are clearly visible. He also took the measurement of the crosswalks.

Officer further stated that posted speed limit on King street is 50 km/hr and that King street is fairly heavily travelled area with vehicle traffic and pedestrian traffic. That area is very heavily populated with students. There is a mix of commercial and residential in that area. He also stated that Hickory Street is 50 km/hr which speeds also applies to intersection of Hickory and King Street. The lines of traffic are clearly marked. He stated that King street has a two lanes in each direction, two northbound and two southbound divided with a yellow line. The dotted lines dividing the same direction lanes are white in colour.

When presented with diagram of the scene marked as Exhibit #2 officer stated that diagram exactly depict that Hickory street is running east and west and that King street is running North and South. Officer stated on Hickory street travelling westbound there was no left turning lane and there was only two lanes one running east and one running west. Travelling west on Hickory street there is a left turn lane to go northbound on King Street.

Further office stated that in addition to diagram and Total station project date sheet he completed weather datasheets and a motor vehicle collision report which was sent to Ministry of Transportation. He did not inspect vehicle. The vehicle was seized and sent to WRP facility for inspection. He explained that vehicle involved in this accident is a commercial motor vehicle and was inspected by Sergeant Hinsperger as commercial Vehicle inspector from Waterloo Regional Police service.

Civilian Witness Mark Forte

[6] Civilian Witness Mark Forte is an eye witness to this collision. In his evidence he testified that on September 4, 2012 he was going into the Bank of Montreal, which is located on the corner of King Street and Hickory Street, when he observed the accident in which truck and pedestrian were involved.

In his oral testimony, on consent witness marked on the copy of the diagram produced and marked as exhibit 2 exact position of the witness when he observed the accident. Mr. Forte confirmed that presented diagram is accurate depiction of the intersection of Hickory and King street where he observed this accident. He is very familiar with this intersection as he is working in close proximity.

On the blank diagram this witness using a blue pen indicated the location of the Bank of Montreal and his position when he observed the accident as well where the victim was after the accident. That scene sketch marked by the witness was on consent after being signed by the witness marked as Exhibit 3.

On the date in question when he was entering the Bank of Montreal he observed pedestrian on the crosswalk from King Street going under the rear tire of the truck. He does not know the name of that pedestrian. He explained that he was in front of the entrance of the Bank of Montreal when he observed that. He stated that entrance to the bank would be on the south side of Hickory Street. It was around 9:30 a.m in the morning and weather was close to rain. With respect to weather he recalls that it was close to rain. He explained that he recalls that afterwards and while he was providing statement to police what happened it was a downpour of rain. He recalls that he provided the statement about an hour later after accident. Despite it was cloud that did not impede his view.

As he was entering the Bank, he observed a truck turning left, go through the crosswalk on King Street, and that is when he noticed the woman going underneath the rear tire. The truck was turning onto King Street left from Hickory. He did not see anything before that. He described the truck being Go Just in Time. He explained that he saw that sign on the side of the truck. The truck was going a normal speed through the impact and then it was a slow crawl right after. He could not identified the person operating the truck. He marked on the diagram with the X where he saw the victim under the right rear passenger tire. He also explained that marked X presents where he observed the victim under right passenger tire and between two lines on the road which are crosswalk. He observed the crosswalk on the date in question. He stated that he observed the victim within the crosswalk. He believes that the victim was only one on that crosswalk.

In cross–examination he stated that he was one who made 911 call. He cannot recall that he observed other pedestrian on the other crosswalk. He explained that he could not observe all four crosswalk at the same time. He observed several other pedestrians on the sidewalk on the corner. He explained that he could not observed northwest side of the intersection as the Bank of Montreal building was blocking his view, therefore he is not sure whether they were any other pedestrians on that side of the intersection.

In cross-examination he stated that he was approximately 10 feet from the entrance door of the Bank of Montreal when he observed accident. He explained that crosswalk is marked with two white lines. He further stated that after being under the truck the woman was lying on the ground. He was approximately 20 to 30 feet far from the place of accident. He also stated that prior to calling 911 he took a photo of the truck involved in the accident and he provided that photo to the police.

After being presented with the photo of the GoJIT truck he confirmed that that is a photograph of the truck he took with his cell phone's camera after the accident. He stated that is a same truck he observed hit the victim. When he took the photograph the truck was travelling southbound on King Street. On consent photograph taken by this witness of the GoJIT truck was marked as Exhibit #4.

In re–examination He stated that he never observed the victim walking. First time he observed her was when she was under passenger right tier of GoJIT truck.

Civilian Witness Loni Hardy

[7] Civilian witness Loni Hardy is an eye witness to this incident. Through her testimony she also marked on the diagram, depicting intersection of King street and Hickory street, her position when she observed the accident, the position of the victim she observed walking and when the truck went over the victim.

In her evidence she stated on September 4, 2012 she was crossing over King Street at intersection Hickory and King street when she observed the person crossing crosswalk on the other side of the road as herself. She later learned from the article that person's name is Ruth involved in this accident which she observed and who died as result of that accident. She explained when she got off the bus, she was going from the side of the King street that has the Bank of Montreal towards the side that has China store on it. She was crossing the King street on crosswalk towards Regina street.

While she was crossing over she noticed a lady, the victim, across the street from her. They both had a walk signal at same time as the white signal was on that they can go across the street. When she started to walk she heard something and looked over across the street and at that point she saw the truck run over the victim. She did not see initial hit but she did see the truck run over the victim. At that point she run together with several other persons to victim's aid.

She stated as she was walking across the street there was a crosswalk. She explained when she came to the crosswalk she has to wait for a minute because she did not have right of way yet and she observed the lady across to her was also waiting. She recalls there was a girl crossing the crosswalk on her side coming toward her but she did not observed any one around the victim on the side of crosswalk where the victim was. She stated there was nothing unusual in regards the road condition and it was quite sunny but later it rained. There were no cars passing in intersection. She estimated that victim was proximately 2 car lanes from her when she observed her.

As she was crossing the street she did not pay longer attention to lady crossing the street on the other side until she heard the sound. She explained that sound was more from the victim then from the truck. That what she heard cause her to look to the right. She observed the truck making a left–hand turn and she had seen the victim on the ground and the truck was going over her. She explained that truck was running over the body. She saw the first front right tire and then she remember seeing the back right tire going over the body. She marked on the diagram using sign X where the back right tire of the truck run over the victim. On consent Scene sketch marked by this witness has been marked as exhibit 5.

She further stated when she first observed the victim she was standing on the sidewalk not on the road yet, but when she observed that truck's back right tire went over the lady, the lady was at that point on crosswalk. She observed the truck to be white cube truck and she remember seeing on the back of the truck company's logo as GoJIT blue and orange in the colour. She recalls after truck run over the lady it was driving away. It continued up King Street. She does not know what the speed of the vehicle was, but she recalls that speed was a normal speed for a vehicle turning. She did not see the person driving the truck.

In cross examination she stated that she called 911 and police arrived quite quickly, shortly after within 15 minutes or less at the scene. In cross examination she explained that she could see pedestrian crosswalk along King Street quite clearly and that she did not have any obstruction of the view. She recalls traffic going by on King Street.

Civilian Witness Berlinie Tuong

[8] Civilian witness Berlinie Tuong is an eye witness of the accident. In her examination in chief when she was presented with the draft diagram of the intersection of Hickory and King Street, she confirmed that that is intersection where accident occurred which she observed. She marked on the diagram her position and position of the pedestrian and track involved in the accident with pedestrian. On consent the scene sketch was marked as Exhibit 6B as corrected markings.

At the time of this incident she was student. She is familiar with the intersection of Hickory and King Street as she had been taking that way to go back and forth from campus. She used to cross that intersection probably every day. She recalls that on September 4, 2012 she was driving a motor vehicle a Honda Civic southbound on King Street. When she approached intersection of Hickory and King Street the light was read for her way of travelling and she stopped on the red light.

She observed two pedestrians, one being a young woman and other an older woman, walking at that intersection. One was on the northbound, north side of the King street and the other was on the south side of the King street. They both started to walk across the street at the same time however the older woman took longer to go across the street. She explained that an older woman was walking slowly. The older woman was across the intersection and she could not estimate the distance from her motor vehicle and elderly woman. She explained it was close enough for her to see everything and to see body of the elderly woman after accident. She explained that younger woman was closer to her motor vehicle.

She noticed a car on her right side travelling on Hickory and she noticed the truck on the left side of her motor vehicle on Hickory street. She described the truck being white delivery truck. When the truck made left hand turn its front right wheel hit the pedestrian, and then pedestrian fell and then the pedestrian went under the back right wheel. After hitting the pedestrian, truck continued travelling south on King. At that point she observed on the back of the truck GOJIT sign. She further stated that after the truck hit the pedestrian she noticed brake lights come on the truck a little bit. The truck paused and continued to travel down south on King Street. She does not know what would be the speed of the truck but she recalls that the truck was going appropriate speed to make a left turn. She recalls that weather was sunny and cloudy. It was not raining however after the accident it was raining. She did not see the driver of the truck.

When she was at intersection she observed thick white lines for the pedestrians to walk across the streets and she recalls at the moment when truck hit the pedestrian, the pedestrian was within those thick white lines. The pedestrians she observed were walking east. She observed that pedestrian who was hit was female. She further stated she did not observe any potholes or cracks on the road and that light was good and nothing was obstructing her view.

In cross examination she also stated that while she was stopped at a red light she observed also motor vehicle on Hickory Street facing east. She explained there was no car that made a left turn going northbound onto King Street. She saw the car on Hickory Street facing east but that car did not move prior to truck making left turn. The driver of that car look at her when accident happened and she remembers her face. After truck made left-hand turn and hit the pedestrian truck was in a right lane going southbound.

In cross examination she explained, when presented with her statement given to police, that truck struck the pedestrian with the right front wheel. After the first contact pedestrian body rolled under the middle of the truck, and then it was again struck by the back right wheel.

Civilian Witness Minie Sayadeth

[9] Civilian witness Minie Sayadeth is an eye witness to this accident. As a part of her testimony court considered Scene sketch as marked by this witness and on consent marked as Exhibit 7.

When presented with a draft diagram of the intersection of King Street and Hickory Street this witness in her examination in chief and cross examination marked on the diagram her position and the way of travelling of truck and point of impact with the pedestrian. She confirmed that presented diagram is an accurate depiction of intersection of King Street and Hickory Street. She is very familiar with that intersection as she had been going to Waterloo Collegiate Institute- high school which is near that intersection.

She recalls that on September 4, 2012 her sister Mary Sayadeth came and pick her up from school. Her sister was driving Toyota Camry 2003 and she was passenger. They had intention to go to mall after school. They were travelling down on Hickory Street. When they arrived at intersection of Hickory and King Street, they were turning left to go on King and at that point they observed a white truck was turning left as well onto King Street. It was green light. She explained that when they arrived at intersection the light was read for their way of travelling and then changed to green. She further stated that because the truck in front of them was pretty big even when light turn green they move slightly but they stop prior entering the intersection because they wanted to make sure there was no oncoming traffic. The truck was on the other side of the intersection on Hickory Street. The truck was basically going into the intersection, turning left.

She observed that track hit a pretty big old lady. She confirmed that a same white truck which was turning left hit the lady. She observed orange and green logo on the truck and observed a letter G. She recalls seeing when truck was making left turn she observed to be wide turn and truck slowly moved its wheels near the old lady. She stated that it didn't look like that the truck was about to hit lady at first. But after the first tap, which truck did slowly, it then accelerated and went over the old lady with the first wheel. After that truck accelerated a bit more the lady was under the second wheel. She explained that both passenger's side wheels went over the lady.

In her testimony she also marked on the diagram using X where she saw the front wheel of the truck hit the lady. She further stated that she observed lady before she was hit by the truck. She described lady as Caucasian, old past fifty five, very big around 180 plus pounds, with walking issues. She explained that lady was walking very slowly. She recalls that lady was walking within the crosswalk. She explained that she observed the lady between two white lines which indicates crosswalk. She further stated after lady was hit by truck, she was not longer between those two white lines; she was on the road outside of the crosswalk. She confirmed that before lady was hit by the truck she never walked outside that crosswalk.

She recalls it was raining that day. She further stated that traffic light was working properly. She did not observe the driver of the truck. She provided the statement to the police approximately 10 minutes after the incident. There was nothing obstructing her view of the collision. She did not observe anything wrong with the road at all. There was no any car behind or in front of the truck who hit the lady. She further stated that truck was moving very slowly when turning left.

Further in cross examination this witness confirmed that there were no other trucks or other motor vehicles behind the truck who hit the lady. She further stated that there were no other pedestrian near to lady who was hit.

Civilian Witness Mary Sayadeth

[10] Civilian witness Mary Sayadeth is an eye witness of the accident. In her testimony she stated that on September 4, 2012 she went to pick up her sister Minie Sayadeth from school. The school was right by Hickory Street. After she picked up her sister she was driving down Hickory Street. When she approached the intersection of Hickory and King Street she had intention to turn left on King Street to go toward Conestoga mall.

When presented with a draft diagram of the intersection of Hickory and King street this witness confirmed that diagram depict accurately that intersection and that she is very familiar with that intersection. She also marked on the diagram her position on intersection, position of the truck involved in the accident with his way of travelling and position of the pedestrian who got hit by the truck. On consent that scene sketch with her marking was marked as Exhibit #8.

When she approached the intersection she observed a white truck on the opposite side of her. She explained they were parallel to each other. She was mainly watching the traffic and her sister, who was in front passenger seat, saw what happened. After her sister worn her she took a look. When she looked at she saw a body going under the truck, like passenger side. Body first went under the front wheel but then it just proceeded to go under the truck and just make its way under the rear wheel. As a party of her oral evidence she marked on the diagram where was the body when she observed being hit by the truck. She stated it was like that truck dragged the body through. She further stated that it looked that lady was on the crosswalk, that she was walking and then when truck hit her it dragged the body. She further stated that initially the lady was hit on the crosswalk, but because of impact she was dragged a little bit so she ended up a little bit past the crosswalk.

She stated that she saw the truck when she approached the intersection. On exhibit 9 she marked where she observed the truck and she draw an arrow indicating the direction that the truck drove which confirmed that truck was turning left from Hickory Street onto King Street. She further stated that she saw the pedestrian that was hit first when pedestrian was standing at the corner of Hickory and King Street. She describes her being an older bigger lady. She could not recall seeing lady waking because she was paying attention on the other traffic on the intersection. She confirmed that there was nothing obstructing her view and she could see everything what happened. She observed when truck hit the lady it looked that he is going to slow down and then he just drove off.

In cross-examination she stated that she had intention to turn left on the King street and when light turn green she advanced into the intersection. She stated that she was pretty much in the middle of the intersection. She also observed the car waiting at the red light on King Street trying to get southbound. She also observed some cars behind the truck but she was not sure whether they were just parked on the road or just behind the truck trying to get by. She recalls that it was raining that day.

Officer Dan Cooper

[11] Officer Dan Cooper is not an eye witness to this accident. On September 4, 2012 he was acting as assisting officer in the investigation of the accident where vehicle involved left the scene. He parked his cruiser on DuPont Street in the city of Waterloo so that he might watch for traffic in the hopes of seeing the subject vehicle driven by. Through the course of investigation he learned that motor vehicle in question was white large cube van type vehicle with the letters GOJIT on the side and that motor vehicle is heading southbound on King Street.

While he was park, a person driving a red Mustang approached his cruiser and based on the information he received from that person, he turned northbound onto King Street to look for the vehicle. When he approached the Central Street he observed white truck turning right onto a Central street. He was following the path of that motor vehicle and he observed that white truck with word GOJIT stopped at traffic lights. He activated his emergency lights and approached the driver's side of the truck's cub. Approximately at 10:01 a.m. he asked the driver to step down from the truck and advised the driver of the reasons why he stopped him. He advised the driver that he stopped him because investigation is going on with respect collision in which he as a driver of the truck was involved with a pedestrian and that he had left the scene. He identified driver with the Ontario photo driver's licence as Dale Eastman with the date of birth July 16 1957.

Officer also in court confirmed that defendant before the court is the person who was operating the white truck with word GOJIT, and who identified himself with the drivers licence as Dale Eastman. He further stated that at 10:04 a.m. he place the defendant under arrest for failing to remain at the scene of an accident contrary to the Criminal Code.

After conducting a Voir Dire and finding that statement given to office Cooper by defendant was given on voluntary basis, Constable Cooper testified that after he advised the Defendant of the reasons why he stopped his motor vehicle defendant told to him that he was not aware that he had hit anyone, or that he had been in an accident. He told to officer that he was coming from 300 King Street and he was looking for Weber Street and when he went past Bridgeport he thought he had gone too far and he was turning around. Officer further stated that he transported the Defendant to the police station. Officer confirmed that he arrested the Defendant on Central Street which is south of King and Hickory Street approximately 5 or 6 blocks from that intersection.

Detective Jennifer Brooks

[12] Detective Jennifer Brooks testified on this trial as Waterloo Regional Police Officer with the forensic identification branch. On September 4, 2012 she was involved in the investigation of the collision at the corner of Hickory and King Street where pedestrian was involved and motor vehicle involved left the scene. She was requested to attend the scene and take scene photographs. She attended as well a location where a vehicle had been stopped in relation to the offence and examined that vehicle for any evidence that may be there. She also attended an autopsy in relation to the incident and took photographs and collected all evidence that was relevant. As a part of investigation she also examined the vehicle one further time at the towing company.

The information she received was that motor vehicle was found on Central Street, and she located that motor vehicle on Central Street. When presented with a set of photographs marked as Exhibit 9A through M and Exhibit 10 set of photographs on page 15 of 21 Detective Brooks confirmed that those photographs were taken by her on September 4, 2012 using a Nikon digital camera regarding occurrence number 12-208314. She further stated that photographs on page one of 21 pages are the photographs of the deceases victim at the scene of the collision as she found her on her arrival. She recalls that body was covered by a tarp to protect her from weather because it was extremely heavy rainfall that day.

She further confirmed that she took photographs of the truck involved in the accident, including under side of the vehicle. Detective Brooks stated that photographs depict the human tissue that had adhered to certain areas of the underside of the vehicle and that was what she was attempting to photograph. She further stated those samples were collected but there was no forensic examination of any of the tissue found. She also stated in cross examination, when referred to photograph 81 of Exhibit #9 that similar marks were located on flaps of the motor vehicle as was depicted on the photograph but they were never analyzed as being of any specific origin.

Referring to her notes she stated that she does not have in her notes anything specific with respect the interior of the vehicle. Referring to photographs on page 8 and 9 she stated that those photographs depict several different angels of the intersection of Hickory and King Street in the City of Waterloo. She recalls that she took the photographs of several articles found on the scene. When presented with photographs on page 11 and 12 she confirmed that those photographs depicts exactly what she observed on the scene being hearing aid piece of wood and umbrella.

She further stated that after vehicle was at Waterloo Region Police impound she attended that location and took several photographs of the front of the vehicle, close up photograph of the driver's side front and back tire tread pattern. After being presented with photographs on page 13 and 14 Detective Brooks explained that photograph 14 depict underside of the vehicle on the passenger side just behind the passenger side door and below it appears to be a piece of human tissue embedded in and adhering to a portion of the underside of the vehicle.

In cross examination when presented with photographs on page 15 referring to images 88 and 89 Detective Brooks confirmed that those photographs are photos of the umbrella and that she cannot see particles of the wood missing. On consent page 15 set of photographs were marked as exhibit #10. She further stated in cross examination that she made a note that she did not find any tissue embedded on tires or on exterior surface of the vehicle and no visible sign of tier impression left on clothing.

In re-examination she stated that she found what appeared to be human tissue on the underside of the truck, on the rear and front mud flaps behind each of the tires on the passenger side. She stated that there are particles of apparent tissue that are north of the location where the deceased was deposited on the roadway as well the tissue was located inside the crosswalk.

During the trial, Detective Brooks was recalled on consent as she made available blow up of the already filed several photographs of which were marked as an Exhibit 9A through M in order to assist the court to better view of the scene of the accident, position of the pedestrian and markings on pedestrian and truck. On consent Enlargements of photographs marked as Exhibit 9A through M has been marked as Exhibit #12A through O.

In her testimony Detective Brooks confirmed that she made enlargement of those photographs in order to provide a more detail of those photographs. Based on those enlargement of the photographs particularly referring to photographs zero six five and zero six six, marked as Exhibit 12M, she stated that after reviewing the enlarged photographs she can clearly see that there are markings on the pavement, which she recalls to be used to denote the position of the body, which is different from the position of the cones pointed earlier in her testimony in cross examination. She further explained referring to Exhibit 12M which is enlargement of photograph marked as Exhibit 9K that final rest position pertains to the small dots immediately on the pavement and not to the cones beyond the dots on the pavement, as she earlier stated. She confirmed that her earlier statement in that regards was incorrect.

In cross examination Detective Brooks stated that small photographs submitted to court are insufficient to fully illustrate what she observed at the scene and what she photographed at the scene. That was reason why she made enlargement of those photographs to assist the court. She clarified that in her prior testimony she could not clearly see what those dots on the ground were until she saw enlargement.

Civilian Witness Mohammad Mehdi Golmakani

[13] Civilian witness Mohammad Mehdi Golmakani- in his evidence stated that on September 4, 2012 he left his house which is on Frist Street pretty close to Hickory Street. He turned right onto Hickory Street and when he got to intersection of Hickory and King Street he saw an old lady on the ground in the middle of the intersection. At that point two young looking, possibly student, Asian, came up to his window because he stopped to see what is going on and they pointed to him at the truck. He learned from those girls that that trick hit a lady who was laying on the ground and he is getting away with it.

He explained at that day he was operating his motor vehicle a red Ford Mustang convertible. Those two students pointed to him to white truck with letters G-O, and orange letters JIT. He also explained that color of the letter could be other way around he cannot exactly recall. As result of that he drove around the lady and onto King Street and started following the truck. There were no other cars on that street. It was only truck travelling south just between Hickory and University on King Street. He never lost the side of the truck. He was following the truck down on the King Street. He could not contact the police because his phone was dead.

He further stated that he drove behind the truck, very close to him all the way to Princess and King Street. Just before he got to that street he went around the truck and tried to stop him just past Princess and King Street. He explained that he went in front of the truck and stopped his car. The driver of the truck honked to him wondering. He further stated that he looked out and got a glimpse at the face of the truck driver who was right behind him. He could not recognize the person he saw that day driving the truck but he explained that person was an old man with long hair. He figured out person to be above 50, maybe 45.

He further stated as he did not give him to pass, the truck turn right onto Princess Street and then turned to Albert Street. He didn't want to back up and follow him, so he travelled south on King and on the next street where is a police station. He pulled into that street and he observed a police officer in his car. He told to police officer to follow him. When he turned right onto Albert Street he observed the truck again travelling north on Albert. He kept following him. He believes that police officer pulled up right beside him with his window down and then he pointed to the police office at the truck. He advised the police officer that that truck hit the woman at the intersection of Hickory and King Street and then officer started following the truck in front of him. He stopped behind the police officer when police officer stopped the truck at Central Street. He explained that truck made a full circle uptown Waterloo basically.

He had independent recollection of what that truck looked like stating it was big truck with the letters and he remember that the licence plate was on the lower left side. When presented with Exhibit #4 he confirmed that is the same exact truck white in color with same letters as he observed. He explained that he was right there at Hickory and King Street just around the corner. He further stated that he remembers the front of the truck and that photographs exactly depict the front of the truck he stopped. He confirmed that is the same truck that he escorted to the police officer.

In cross examination he confirmed that he observed old lady lying on the King Street on the right –hand side. While he was following the truck, he explained that the truck did not go particularly fast.

Defendant Dale Eastman

[14] Defendant Dale Eastman testified on this trial. He stated that he was trained as a truck driver 41 years ago. At the present time he has been working as a truck driver for O'Brien Paving and for Cambridge Forest City Staffing. During those 41 years he has been trained as a truck driver to perform the duties of the safe operation of a motor vehicle.

He stated that around September 2012 he was working for Gojit Transport out of Ayr Ontario. He was working for that company approximately six months. He started to worke for that company approximately from the middle of April or first of May till September 2012 when he was terminated because of the accident on September 4, 2012.

He recalls that on September 4, 2012 he was performing his regular duty as a truck driver. On that morning he started his work approximately seven o'clock in the morning. On the beginning of his work he did regular circle check set out by the Ministry based on the regulation of the Motor Vehicle Act, to make sure that all the components including lights, tires and vehicle is safe to operate that day. The weather was nice, it was sunny, clear. He recalls that he was in good shape and able to perform his regular duty as a truck driver.

On that day he had a list of deliveries to deliver goods to different places. He explained it is not very often the same route day after day. On September 4, 2012 he had a list of the commodities and the addresses to which he needed to deliver that day. He recalls the first delivery to be to China and Glass Boutique on Hickory Street in the city of Waterloo. After he delivered the goods to China and Glass Boutique in their back parking lot just off the Hickory Street, he went back to Hickory Street with intention to go to his next delivery. He believes to be off Columbia Street. He stated that he was not in rush and everything seemed to be as normal every day routine.

When he exited the parking lot of Chine and Glass Boutique he proceeded to Hickory Street to the traffic light, which was red at that time. He recalls it was approximately 9:30 a.m. He stopped at the red light and waited for the light to change to green for his direction. He scanned the intersection like he normally does when he is making a turn. He observed vehicles to his left at the light on King Street, the opposing street and pedestrians here and there. He recalls to be at least four vehicles to the left side and there was also vehicles to his right side. He cannot recall how many, but he recalls there was a vehicles stopped at the light in the opposing direction to his right.

When the light for his direction turned green, he observed that his path was clear in the intersection and he proceeded to make a left-hand turn onto King Street at a normal easy turn speed. He observed the pedestrian standing across the intersection. He also observed the pedestrian walking to his right and believes there was pedestrian standing to his left. He recalls specifically that female pedestrian to his right was wearing slacks and a white top with the brown spots. He was at that point stopped at the light of Hickory and King. He recalls that the road was dry, the weather was clear and the path was safe to make left turn.

When he made left turn he proceeded down King Street. He explained when he left Hickory Street and turned left on King Street he was going towards Bridgeport. When presented with Exhibit 4- photograph that depicts GOJIT truck he confirmed that was a truck he was operating on the date in question.

He further stated that when he was at Bridgeport Avenue he realized that he was going in the wrong direction on King Street. He proceeded to move the vehicle in a safe manner to the right-hand lane so he could make a safe turn around the block and come back to King Street and proceed in the opposite direction. He does not recalls the name of the street that he turned right but he recalls when he was pull over by the police he was on Central Avenue. When he was pull over by the police he was told that he was involved in the incident which is still under investigation and that later after he was arrested he was advised the he was involved in the collision which is still under investigation. He was later told by the officer in police station that he struck and killed a woman at the Hickory Street and King Street intersection.

He stated that he was not aware of any incident that happened on Hickory Street when he was turning left to King Street. He further stated that he could not recall that he hit someone on the road. Only what he recalls was that was a routine left-hand turn at the intersection as he had done so many times before. He stated that there was nothing obstructing his vision, when he was making left turn. He did not hear anything while he was making that left turn except regular sounds.

In cross examination he stated that he did not see the woman when he was making left hand turn on King Street from Hickory Street. He stated that he was not particularly familiar with intersection of Hickory and King Street. He further stated in cross-examination that once he made a left turn on King Street and proceed on King Street approaching Bridgeport Avenue he realized that his turn was in wrong direction. He explained that he made decision to turn left on King from Hickory while he was stopped at the red light. Because he was not familiar with the area he realizes later when he was at Bridgeport Avenue that he made wrong turn. He explained that the parking lot from Chine store is only 50 meters from intersection of Hickory and King Street.

When he got on the intersection he positioned himself in left lane on Hickory Street with left turning signal on. He stated that he gets paid by the hour and on that day he was not in any rush. He further confirmed that the weather was fine that day, he did not have any obstruction and his truck was working fine. He stated in cross examination that he observed the pedestrian but he remembers specifically the pedestrian on his right hand side wearing a white top with brown spots. He explained that other pedestrians did not jump out at me like her spotted blouse did. He cannot recall did he look right first or left while he was at the stop light. He explained that he was kind of looking at the path of his vehicle and watching the light.

When light turn green it was clear path and he entered the intersection and made his turn. He could not describe any of pedestrian to his left when he was making left hand turn. He only recalls that there were pedestrians on left hand side. He confirmed that his truck was Pete built and it takes several blocks to go from stopped to driving speed therefor he was driving very slow through that intersection. He further stated that to get from the stop at Hickory Street to go through the intersection, to the other side on King Street he estimated that took him approximately 10 to 15 seconds. He confirmed that he had adequate time to make the turn properly and to look where his vehicle is going. He did not have any blind spots and there is nothing in front of him that he cannot see.

Further he stated in cross-examination if there was someone there when he was turning left he would have seen the person but he did not see anyone. He stated that he was told that he hit the woman that day but he did not see that woman at the intersection. He confirmed that he had a plenty of time to look around and look ahead of him and he did not see anyone in his view when turning left on to King Street. He was looking in the direction of his vehicle and he did not see her.

Issues Before the Court

ISSUE BEFORE THIS COURT:

Court finds that date, time, location and Jurisdiction of this court is not an issue.

The issue in this case is:

Did the Prosecutor prove beyond a reasonable doubt that the Defendant Mr. Eastman on September 4, 2012 operated the commercial motor vehicle, being GOJIT truck, on King Street North in the City of Waterloo, which was involved in the collision with the pedestrian, who was later identified as victim Ruth Hamilton?
Did the Prosecutor prove beyond a reasonable doubt that the pedestrian, victim Ruth Hamilton, was crossing the cross walk and was there to be seen by the Defendant?

If an answer to those questions is YES the further issue is:

Did Prosecutor prove beyond reasonable doubt that Defendant operated a motor vehicle on the date and time in question without due care and attention or without reasonable consideration for other using the highway, and that defendant did not exercise the degree of care and attention while operating motor vehicle that a reasonable prudent driver would exercise in the circumstances existing on September 4, 2012 on the intersection of King Street and Hickory Street in the City of Waterloo?
If answer to those questions are YES, then court must also consider the following:

a. Did Defendant raise due diligence or was due diligence supported by the evidence presented to the court?

b. And does the action of the Defendant require punishment?

Findings of Fact and Application of Law

Legal Framework

Section 130 of the Highway Traffic Act R.S.O. 1990, c. H8, as amended states:

"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 using the highway....."

This is a strict liability offence. The Prosecutor needs only to prove beyond a reasonable doubt that Defendant committed the prohibited act and unless the Defendant can show that such act was done without negligence or fault on his part he will be convicted. Therefore as has been established by the Supreme Court of Canada in Sault St. Marie (1978), 40 C.C.C. (2d) 353, once the Prosecution proves the Defendant has committed the actus rea of the offence beyond a reasonable doubt that in order for Defendant to be acquitted of the offence he/she has to present on the balance of probabilities that he/she has taken all reasonable steps in the circumstances to avoid that event. The Defendant must meet its burden of proving on a balance of probabilities that defendant had taken all reasonable steps for the existing circumstances to avoid the particular event, or that the defendant had reasonably believed in a mistaken set of fact which, if true would render the act or omission innocent.

In R v. McIver, [1965] O.J. No. 998 (O.C.A.) MacKay J. A. recognised that an accused can show an absence of negligence as a defence to careless driving by proving on a balance of probabilities that the defendant conduct had been caused by a mechanical failure or other circumstances that he could not have reasonably foreseen.

Question 1: Did the Prosecutor Prove the Defendant Operated the Vehicle Involved in the Collision?

Court takes position that evidence presented by an eye witnesses Mark Forte, Loni Hardy, Berline Tuong, Minie Sayadeth, Mary Sayadeth and Mohammad Golmakani; investigating officer Shawn Keller as a level four collision reconstructionist, detective Jennifer Brooks as Waterloo Regional Police Officer with the forensic identification branch, Officer Dan Cooper as assisting officer from Waterloo Regional Police, Exhibit #1 and 2 total Station Project data sheet and Scale diagram at scene, Exhibit #3 to 8 scene sketch as marked by each eye witness, Exhibit #9 A-M 14 pages photograph sheet of scene, victim and truck and Exhibit #10 photograph sheet taken by Detective Jennifer Brooks; Exhibit #11A-B three photographs taken at Bank of Montreal and Exhibit 12A-O Enlargements of photographs marked as Exhibits 9A through M prove beyond a reasonable doubt the following facts:

The King Street and Hickory Street is regulated by the traffic lights. On September 4, 2012 the traffic lights were in proper working order as well pedestrian signs. Officer Keller as a leading investigator of this accident stated in his evidence that he tested the proper functioning of the traffic lights. When he pressed the pedestrian button on the traffic lights post and when walking signal come up it was approximately 10 second long before it would change to flashing hand. Civilian witness Loni Hardy testified that pedestrian lights were working properly and that pedestrian involved in the accident and she had on the same time white walking man on the traffic light when they started crossing the street on cross walk on the King Street. She further explained that pedestrian was old and she had difficulty walking that was reason why she was walking slowly on the cross walk.
The King Street and Hickory Street are strait leveled street without damage.
The King Street is divided with the visible white lines with marked cross walks and visible stop bars on the intersections.
Weather on the time of an accident was clear sunny day light.
Considering evidence of the Defendant, whose evidence corroborate with the evidence of the civilian witnesses with respect a weather and road condition, court also finds that Defendant did not have any obstruction of the view when he was making left hand turn from Hickory Street on to King Street and his motor vehicle was in proper working order.
Based on the evidence of eye witnesses, court finds proven beyond reasonable doubt that pedestrian involved in the accident, due to her edge and problem with walking was walking very slowly on the cross walk from the directions of Bank of Montreal toward other side of King Street. On the same time parallel to her on the opposite side of the intersection witness Ms. Loni Hardy was walking across other cross walk in the same directions. Witness Mark Forte was observing the accident while he was coming to the entrance of Bank of Montreal. Witness Berline Toung was in her motor vehicle directly on intersection King and Hickory street in stopped position on King street on red light. The witnesses Mini Sayadeth and Mary Sayadeth were in the motor vehicle in left turning lane on Hickory street opposite to the Defendant's truck with intention to turn left on to King Street North. Mini Sayadeth was passenger and Mary Sayadeth driver of the motor vehicle. Mini Sayadeth did not have any obstruction of view and she was directly facing the cross walk where pedestrian involved in the accident was crossing that cross walk. Mini Sayadeth in her testimony in detail describe the pedestrian as very old, heavy lady approximately 180 pounds with walking difficulty. Her evidence corroborate with the evidence of Loni Hardy who stated that pedestrian was walking very slowly as she had walking difficulty.

Further considering evidence of the eye witnesses and evidence of the Defendant court finds proven beyond a reasonable doubt that Defendant was operating commercial motor vehicle with a logo GOJIT truck and he was turning left from Hickory Street on to King Street when lights turn green. Considering evidence of the eye witnesses, evidence of Constable Keller, Detective Brooks, Officer Cooper and material evidence marked as Exhibits 1 to 12 court finds proven beyond reasonable doubt that Defendant while turning left from Hickory Street on to King street strike the pedestrian with the passenger front wheel, and then run over the pedestrian with his back passenger wheel and proceeded to drive down the King Street. Court also finds that defendant was pulled over by the police on Central Street in the city of Waterloo.

Court finds that each of the eye witnesses was independent from one another. Each of eye witnesses presented as intelligible, with ability to observed and recall what they observed on September 4, 2012. There is nothing in their evidence which would suggests to the court any bias or influence on one another. Each witness had a clear side of the incident and court accepts submissions made by Mr. Crown that testimony of the witnesses when taken together as well their scene sketches marked as Exhibits 3 to 8 provided to court every angle of the view and vantage point of the intersection of Hickory and King Street and what happened on September 4th, 2012. Every eye witness was clear in their testimony that nothing obstructed their view of the intersection and what happened on that intersection on September 4, 2012.

Court cannot accept submission made by Ms. Gratl that because witness Loni Hardy was testifying that she observed the person wearing a hat and that hat was not found that she must be mistaken who she saw being hit by the truck. This witness was clear in her evidence when she come off the bus and arrived at the crosswalk she noticed another lady, victim, across the street from her. She stated that lady and she had a walk signal at the same time. In cross examination this witness stated that she first observed the victim standing at the crosswalk and next when she saw the victim the victim has been run over by the truck. She stated that she could not remember what victim was wearing. When she started to walk she heard something and she looked over across the street and observed that the truck who was making left hand turn run over the victim's body.

Further court cannot accept submission made by Ms. Gratl that witness Mini Sayadeth has very high level of incredibility. Court observed the testimony of that witness in examination in chief, cross examination and when she was resummons and re-examined by Ms. Gratl. There is nothing in Ms. Mini Sayadeth testimony that court can consider as not credible. This witness appeared to court intelligent young person with good ability to observe and ability to recall what she observed. Court takes position that she testified in honest and credible manner. Her testimony has not been shaken in cross examination or in examination in chief when she was recalled by Defence Counsel. She did not know the pedestrian involved in the accident nor did she know the Defendant. She testified as an independent eye witness.

With respect testimony of eye witness Mark Forte court cannot agree with the submission made by Defence Counsel that evidence of this witness were not reliable because his view was obstructed by guardrail, and several pillars and that he was quite away from the intersection. This witness took a photograph of the GOJIT truck which run over the pedestrian at the point when truck was leaving the scene of an accident. That photograph on consent was marked as an exhibit #4 and admitted by the Defendant in his testimony that was in fact a truck he was operating on the date in question and that he was at the location as depicted on the photograph. The Defendant in his testimony admitted that he was behind the wheel of the truck in question and that at that time he was working for GOJIT.

Considering testimony of this witness and exhibit #3 scene sketch made by this witness as well photographs taken at the Bank of Montreal marked as Exhibits 11a-c, and filed by Defence, and set of photographs taken by Detective Brooks of the scene marked as Exhibit 9I-imige052, photo 9K-image062, Exhibit 12L-enlarged photograph of Exhibit 9K –image 062 court finds that witness Mark Forte did not have obstruction of view and he could from his point of view clearly observe intersection of King and Hickory Street as well crosswalk on King Street from Bank of Montreal where the pedestrian involved in the accident was crossing at the moment of accident.

Considering evidence of Constable Keller as a leading investigator of this accident, whose evidence corroborate with an Exhibit #1 and 2 as well with evidence of Detective Brooks, who took the photographs of the scene, body and truck involved in the accident, court finds that Constable Keller as a part four collision reconstructionist when he arrived at the scene he observed the body covered by a sheet in lane number one of the southbound lanes of King Street North just south of Hickory Street. He marked all the evidence on the scene and he was using Total Station Equipment to survey the scene. Based on that survey Scale diagram has been created and marked as an Exhibit 2 on this trial. Court finds that Constable Keller was trained to use the Total Station equipment and that equipment was in proper working order. He testified that he observed and he marked flesh fragments in lane one on the southbound lane of King Street indicating path of travel of the body and the vehicle. He was clear in his testimony that some flesh fragments were quite distanced from the body indicating that they had either fallen off or dropped off the vehicle. His evidence corroborate with the evidence of Detective Brooks, who also observed a fresh flesh fragments on the road as well on the GOJIT tuck through the course of taking photographs when she examined the truck for any evidence of the collision with the pedestrian.

Court also finds based on the Constable Keller's testimony and Detective Brooks' testimony, as well Exhibit #12a-e that there were tire marks evident on the abdomen area and right across the torso and the right arm of the victim. Constable Keller also observed and marked on the scene a hearing aid in lane one on King Street and some fragments of woods. His evidence corroborate whit the testimony of Detective Brooks and Exhibits 2- Scale diagram of the scene and Exhibits #9, 10 and 12 set of photographs depicting the scene, victim and truck.

Considering R. v. W.(D) [1991] 1 S.C.R. 742 - Supreme Court of Canada decision court finds that evidence of the eye witnesses Mark Forte, Loni Hardy, Berline Tuong, Minie Sayadeth, Mary Sayadeth and Mohamed Golmakani are credible and reliable. Court also finds that evidence of Constable Shawn Keller, Detective Jennifer Brooks and Officer Dan Cooper are credible and reliable. Based on the presented oral and material evidence court finds proven beyond reasonable doubt that on September 4, 2012 around 9:30 a.m the Defendant was operating the commercial motor vehicle being large white GOJIT truck which was involved in the collision with the pedestrian who was crossing cross walk on King Street North in the City of Waterloo.

Even the Defendant in his testimony admitted that he was operating GOJT truck on the date and time in question, that he was on the intersection of Hickory Street and King Street turning left from Hickory Street on to King street. He observed the pedestrian crossing crosswalk on his right hand side on King Street when he was turning left, however his testimony was that he did not observe the pedestrian crossing the cross walk on his left-hand side and he did not have notice that he made any contact with the pedestrian.

Question 2: Was the Pedestrian Crossing the Crosswalk and Visible to the Defendant?

[3] Considering the evidence of civilian witness Mark Forte, Loni Hardy, Berline Tuong, Mini Sayadeth, Mary Sayadeth and Mohammad Golmakani court finds that each witness stated that they have independent knowledge of the intersection of King Street and Hickory Street and each confirmed that scale diagram at scene is accurate depiction of the intersection. Court finds considering evidence of Constable Keller, evidence of the eye witnesses, Exhibit 2 Scale diagram of the scene, and Exhibits 3 to 8 scene sketch made by each witness, that the lines on the crosswalk were clearly marked, as described by the witnesses they were as thick white lines. The lines for traffic were clearly marked and there was no defect on the road and no other issues with the intersection at all.

Witness Loni Hardy stated that she waited for and observed a white light signal inciting that she could cross the street. Further in her evidence she stated that she saw the victim crossing the same time. Evidence of each witness corroborate that a pedestrian had a right of way and that pedestrian involved in the accident was within the thick white lines of crosswalk. Witness Berline Tuong stated that she observed the pedestrian within the thick white lines. Her evidence corroborated with the evidence of Minie Sayadeth who testified that pedestrian took some time to cross the street and the truck was travelling slowly. She also stated that lady was old, she was very big and that she had walking problems as she was walking very slowly. Ms. Minie Sayadeth was passenger in the car and was directly in front of the incident and had a clear opportunity to see the truck and pedestrian. She stated in her testimony that old lady pedestrian was between white lines of crosswalk when she was strucked by truck turning left from Hickory Street onto King Street.

Based on the oral evidence of eye witnesses, Exhibits #3-8 scene sketch as marked by each witness on scale diagram at scene, as well evidence of officer Keller and Detective Brooks and photographs of the scene and victim marked as exhibit 9I-image050,053,059,060,061,062,065 and 066 and Exhibit 12L-M as enlarged photographs of Exhibit 9 photograph marked o62,64 court finds that the pedestrian, victim Ms. Hamilton was crossing the crosswalk on King street from the side where Bank of Montreal was located when she was struck by the truck operated by the Defendant.

As office Keller stated in his evidence and his evidence corroborate with the evidence of each eye witness as well exhibit #2-8 and Exhibit #9 and 12 that he observed the flesh fragments in lane one on the southbound lane of King Street which indicated path of travel of the body and vehicle. There was hearing aid close to body found in that lane and some fragments of wood. Considering all the evidence in totality court can make only one conclusion that as all independent eye witness were able to clearly see that the pedestrian was crossing the cross walk the Defendant was as well able to see her on the cross walk when he was turning left toward her if he was paying enough attention to that side of road.

Evidence of the eye witnesses corroborate with the material evidence marked as EX 9 and Ex 12 that pedestrian was old and larger woman. She had difficulty walking and she was moving slowly. She was alone crossing the street on a clearly marked crosswalk in the middle of the lane that the Defendant was entering. The Defendant admitted that he did not have any obstruction of view, and that he scanned all intersection. He did not have any problems with his vision and he recalls very well the pedestrian on his right-hand side crossing the crosswalk. When he was able to observe that pedestrian only conclusion court can make is that he was able to observe the pedestrian on his left-hand side when he was turning left. The pedestrian on his left hand side was in parallel position with the pedestrian Ms. Loni Hardy, who was on the right-hand side of the Defendant's motor vehicle.

There for court concludes that prosecutor proved beyond a reasonable doubt that the pedestrian, victim Ruth Hamilton, was crossing the cross walk and was there to be seen by the Defendant.

Question 3: Did the Defendant Operate the Vehicle Without Due Care and Attention?

[4] Considering the wording of S130 of the Highway Traffic Act and presented case law court takes position to support finding of guilt for careless driving it is necessary for the prosecution to prove beyond a reasonable doubt that the accused drove in a manner which can make only one conclusion that he /she drove without due care and attention or without reasonable consideration for other using the highway.

Court takes position that R v. Beauchamp Ontario Court of Appeal decision is a seminal case to apply on set of facts of the case before the court and base for a proper analysis. Court also considers that R. v. Schoemaker (Ontario County Court sitting as Appellant court) and R v. Globocki (Ontario Court of Justice Provincial Division sitting as Appellant court) are binding on this court. However R v. Peace, R. v. Sonnial, R v. Roza, R. v. Lattimore and R. v. Hutchings are not binding cases on this court but they are persuasive.

Despite that the facts in R. v. Beauchamp are not similar to the fact in the case before this court, that case established the test for proper analysis of due care and attention. The test is whether it is proven beyond reasonable doubt that this Defendant in the light of existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware fail to use the care and attention or to give to other person using the Highway the consideration that a driver of ordinary care would have used or give in the circumstances.

In R. v. Beauchamp The Honourable Justice F.G. MacKay for the Appeal Court at page 5 paragraph 18 stated:

"To support a charge under s 29(1) of the Highway Traffic Act (as was then), the evidence must be such as to prove beyond reasonable doubt that the accused drove in the manner prohibited by the subsection, namely, without due care and attention or without reasonable consideration for others. The standard of care and skill to be applied has been long established and is not that of perfection. It is, I think, correctly stated in Mazengarb, op. cit. at pp. 176-7, as follows:

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

But the law does insist upon a reasonable amount of skill in the handling of a vehicle which is a potential source of danger to other users of the road…. The question always is 'What would an ordinary prudent person in the position of the plaintiff have done in relation to the event complained of?'"

It is clear that legal standard of care as established long time ago in Mazengarb has been accepted in R. v. Beauchamp and that care remains the same in all other cases, being standard of care that reasonable ordinary prudent person would do in the circumstances. Court of Appeal in R. v. Beauchamp held that every driver is required to exercise a reasonable amount of skill, and to do what an ordinary prudent person would do in the circumstances.

The Defendant before the court was not expected to drive perfectly on September 4, 2012. He was only required to drive as reasonable prudent driver would drive in the circumstance existing on the intersection of King Street and Hickory Street.

Further at page 7 paragraph 19 in R. v. Beauchamp Ontario Court of Appeal when addressing the meaning of the term "Due Care" states:

"The use of term Due Care, which means care owing in the circumstances, makes it quite clear that, while the legal standard remains the same in the sense that it is what the average careful man would have done in like circumstances the factual standard is a constantly shifting one, depending on road, visibility, weather condition, traffic conditions that exist or may reasonable be expected and any other conditions that ordinary prudent driver would take into consideration. It is question of fact, depending on the circumstances in each case."

The factual standard is constantly shifting one depending on road, visibility, weather condition, traffic condition that exists or would otherwise reasonable be expected to exist and any other condition that a reasonable prudent drivers would take into consideration. It is a question of fact depending on the circumstances of each case.

In case before the court the weather as described by each witness was sunny at the time of accident not particularly cloudy and it was day light. Visibility was god. Traffic condition, as described by defendant and other witnesses, was such that there was not any cars directly in front of the Defendant's motor vehicle. There was one car on the opposite end of the intersection on Hickory Street and one car on the right hand side of the Defendant on King Street. Traffic condition appeared to be relatively light for that intersection. There were no defects on the road as described by every witness. Even the defendant admitted that there were no defects on the road. Based on those factual circumstances question is did defendant acted with due care and attention when he was turning left on intersection and did Defendant before the court exercised a reasonable amount of skill?

Defendant testified that he is an experience driver with 41 years of experience. On September 4, 2012 when he approached the intersection of Hickory and King Street he stated there was nothing unusual in his working schedule. He delivered items to Chine Store and was waiting on the red light at Hickory Street to turn green to give him right to turn left on King Street to go to his next destination. He testified that he was not in hurry. He was somehow familiar with intersection; however he was not sure either to turn left or right to get to his next destination. While he was waiting light to turn greet he made determination to turn left. Therefore if he was acting as reasonable prudent driver would act he would pay more attention to his path of driving particularly that he was aware of the existence of crosswalk in his path of traveling. He testified that before he turned left he scanned the intersection. He recalls very well the pedestrian on his right-hand side on cross walk, even what she was wearing, but he does not recall at all seeing pedestrian on his left hand side.

Considering the evidence of each eye witness and Defendant's testimony court finds that on September 4, 2012 around 9:30 a.m. the weather was sunny, with some clouds, visibility was good, day light. The road condition was good. Roads were dry, and no wholes or damages on the roads. The roads were clearly marked with white dividing lines and white lines indicating pedestrian crosswalk. The traffic lights were in proper working orders as well pedestrian walking signal. The defendant testified that he did not feel anything wrong with his motor vehicle when he completed left hand turn and continued driving on King Street and after to Central Avenue where he was pull over by the office.

Even if court accepts that Defendant was an experience truck driver with 41 years of experience is that sufficient to satisfy this court that on September 4, 2012 he as experience driver did exercise due care and attention according to existing circumstances on the intersection King Street and Hickory Street?

Court takes position that the standard of care is an objective standard as stated in R. v. Beauchamp at page 7 paragraph 20 where Ontario Court of Appeal refers to McCrone v. Riding, supra, at p.158 "The standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It is in no way related to the degree of proficiency or degree of experience attained by the individual driver."

Court finds based on the presented evidence that pedestrian was there to be seen by defendant as she was seen by all other eye witnesses. Defendant was turning left and pedestrian was crossing crosswalk on his left hand side. There for the only possible conclusion is that defendant did not see the pedestrian because he was not paying due care and attention to the crosswalk. He did not act as average careful driver would act in the circumstances as existed on the intersection of King Street and Hickory Street. Careful driver would have taken steps to see that pedestrian as described by witnesses being an elderly woman with walking difficulty was crossing crosswalk relatively slowly. Defendant in his testimony confirmed that there were no blind spots on the truck he was operating on September 4, 2012. He was able to see the pedestrian crossing the crosswalk on the right hand side of the intersection. Considering that Defendant was turning left to cross walk on his left hand side court finds that he could clearly see a pedestrian in the very same crosswalk on the opposite side of intersection, but he did not. The only explanation is lack of care and lack of attention on the side of Defendant.

Court takes position that on September 4, 2012 he did not act as a reasonable prudent driver to see the pedestrian directly in front of the path of the truck he was operating. Even in his testimony he confirmed that he had sufficient time when he was turning left very slowly to scan all the intersection. It took him 5, 10 or 15 seconds as he stated to make left turn and gain driving speed. Despite that, court finds based on the presented evidence, that defendant neglected to see the pedestrian who was crossing crosswalk with her right of way. Based on evidence of each eye witness and even Defendant's testimony court finds that Defendant did not exercise the due care and attention to see the pedestrian who was there directly in the path of his driving. He should have seen the pedestrian on his left hand side when he was able to observed the pedestrian on his right hand side.

Considering presented case law by the Crown court finds that fact in R v. Globocki case which is binding on this court are different than in case before this court. In R. v. Globocki pedestrian conduct was described as "jaywalking". The victim in that case entered the roadway at other than a pedestrian cross-walk. The victim in that case entered a live lane of traffic, before entering the lane in which the defendant was travelling. There were ample evidence in that case that pedestrian was where should not be expected. In case before the court, considering that pedestrian had a right of way, she was exactly where she should be expected to be.

Further fact in R. v. Hutchings and R. v. Lattimore case are very similar to the fact in case before this court and as court stated in R. v. Lattimore when applying test from R. v. Beauchamp:

"a reasonable prudent driver would be exercising a heightened state of alertness to what is in the immediate path of a vehicle or as in the path of the vehicle would be travelling as it moves through its turn and across the pedestrian crosswalk, where the traffic signals are permitting pedestrian to cross."

Further at paragraph 45 of that case court stated:

"The reasonable standard to be applied to the driver in such circumstances is they will at a minimum see and mentally note any pedestrians on or in immediately proximity to the crossover and operate their vehicle in such manner as to ensure the vehicle does not come into contact with pedestrian."

And further at paragraph 46 court stated:

"Where there is no evidence that the pedestrian acted in an unexpected or irrational, or unpredicted manner, it supports a finding that they have, prima facie, failed to exercise due care and attention."

In case before this court there is no evidence which would give indication that pedestrian Ms. Hamilton did anything unexpected, unpredictable or irrational. Court also finds that she had been in a position on a crosswalk where she had a lawful entitlement to be and could reasonably be expected to be. Court finds that Defendant failed to see her or mentally to note her presence on crosswalk because he did not exercise due care and attention when he was turning left on King Street toward crosswalk on his left-hand side.

There for court finds that Prosecutor proved beyond reasonable doubt that Defendant operated motor vehicle on the date and time in question without due care and attention or without reasonable consideration for other using the highway, and that defendant did not exercise the degree of care and attention while operating motor vehicle that a reasonable prudent driver would exercise in the circumstances existing on September 4, 2012 on the intersection of King Street and Hickory Street in the City of Waterloo.

Question 4: Did the Defendant Raise Due Diligence?

DID DEFENDANT RAISE DUE DILIGENCE OR WAS DUE DILIGENCE SUPPORTED BY THE EVIDENCE PRESENTED TO THE COURT?

Court is satisfied that prosecutor has met its burden of proving beyond a reasonable doubt that the defendant committed the actus rea of the offence of careless driving as define under section 130 of the Highway Traffic Act. Court is also required to decide did defendant prove on the balance of probabilities that he has was acting with due diligence or that he was not negligent or at fault in committing the prohibited act. Supreme Court of Canada in R. v. Sault Ste. Marie established that to make defence of due diligence defendant must prove on a balance of probabilities that he had taken all reasonable steps in the circumstances to drive with due care and attention or with reasonable consideration for other persons using the highway to avoid prohibited act or that he had been operating a motor vehicle under a mistaken set of facts, if true, would render his act innocent.

In case before the court, considering presented evidence and finding of facts, court takes position that Defendant has not met his burden of proving the defence of due diligence, or proving that he was not negligent or not at fault in committing the prohibited act on a balance of probabilities. Defendant did not provide the evidence which would on the balance of probability support finding that he acted with due diligence. All evidence supports findings that pedestrian was there to be seen by any ordinary prudent drive. As court in R. v. Lattimore stated at page 10 paragraph 50:

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

and in paragraph 51:

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

In that case defence of the due diligence was that pedestrian came out of nowhere and as court stated at paragraph 52 addressing due diligence:

"In Mr. Lattimore's statement to police at the time 'she came out of nowhere'. Clearly, she did not come out of nowhere. She did not simply materialize in the path of the truck."

Facts in R. v. Lattimore are very similar to the fact in case before this court. In that case driver of the commercial motor vehicle, who was stopped at read light, when light turned green, proceeded forward to make a left turn. When he executed the left turn he felt a bump. He immediately stopped motor vehicle, exited the truck and he discovered woman laying on the ground between his tires. Facts in that case are similar to fact before this court in regards weather and road condition. The intersection in that case where accident occurred is similar as intersection in the case before this court, controlled by traffic lights which were in proper working order and area of intersection in that case was residential and business.

However in case before this court defendant did not give any logical or reasonable explanation why he did not see the pedestrian or even felt the first impact with the pedestrian and his motor vehicle. It is clear from the testimony of all eye witnesses and material evidence that pedestrian was there to be seen by a prudent driver exercising due care and attention. Therefore court takes position that Defendant did not prove on the balance of probabilities that he was operating motor vehicle on the date in question with due diligence and that he took all reasonable actions as reasonable prudent driver would take to avoid collision with the pedestrian.

Question 5: Does the Defendant's Action Deserve Punishment?

DOES ACTION OF DEFENDANT DESERVES PUNISHMENT

Applying established test in R. v. Beauchamp even if court finds that person did not exercise required "Due Care and attention" in the existing circumstances, Court must also considers is Defendant's conduct of such nature that it can be considered a breach of duty to the public and deserves punishment.

At page 7 paragraph 21 Ontario Court of Appeal when addressing that issue stated:

"There is a further important element that must also be considered, namely, that the conduct must be of such nature that it can be considered a breach of duty to the public and deserving of punishment. This further step must be taken even if it is found that the conduct of the accused falls below the standard set out in the preceding paragraphs. This principle may be somewhat difficult to apply, but I think it might be illustrated by the common example of a motorist attempting to park at the curb in a space between two other parked vehicles. Frequently one or other of the parked vehicles is bumped in the process. Damage seldom arises, because cars are equipped with bumpers, but if damage were caused it might well give rise to a civil action for damages, but it could hardly be said to be such a lack of care or attention as would be considered to be deserving of punishment as a crime or quasi-crime."

Accordingly, Justice MacDonnell in R v. Globocki on page 6 stated:

"….It must show a sufficient departure from the standard of a prudent and reasonable driver to make the driving deserving of punishment"

Authors Hutchison, Rose and Downes in their book The Law of Traffic Offence (2d.ed.) (Carswell, Toronto:1998 at page 151-152 addressing the issue of factual standard in due care states:

"The standard is an objective one, fixed in relation to the safety of other users of the highway, and in no way related to the degree of proficiency or experience attained by the individual driver whose conduct is in question. It is not, however, enough that the defendant's conduct should be shown to fall below this standard. Since the offence is quasi-criminal, it must also appear that the defendant's conduct has been of such a nature that it can be considered a breach of duty to the public and so deserving of punishment by the state as per R. v. Seabrook (1952), 103 C.C.C. 7 (Ont. H.C.)"

Court takes position that presented evidence proved beyond reasonable doubt that pedestrian was on cross walk to be seen, she did not do anything unexpected, unreasonable or irrational and she had right of way. Therefore court takes position that presented evidence proved beyond reasonable doubt that defendant conduct does not only fall below the standard of ordinary prudent drive in the circumstances existing on the intersection of King Street and Hickory Street on September 4, 2012, but also that his conduct is of such nature that it can been considered as a breach of duty to the public and his conduct is deserving a punishment.

Conclusion

Court is satisfied that based on the presented evidence the prosecutor prove beyond a reasonable doubt that unless defendant operated motor vehicle carelessly the collision would not likely have occurred. There is no other reasonable explanation why defendant did not observed the pedestrian who was there in his path of travelling to be seen except that he did not operate motor vehicle with a due care and attention. Considering all the evidence in totality only conclusion court can make is that Defendant did not see the pedestrian because he was not looking at the left hand side all the time when he was making left hand turn. He had ample of time if he acted as reasonable prudent driver would act in the existing circumstances even while he was in stopped position on the traffic light to observe the pedestrian on his left hand side as he observed pedestrian on his right-hand side. There was nothing in the evidence that court can conclude differently. Considering factual standard applicable in case before the court, court concludes that the Defendant's conduct deserves the punishment.

For the above noted reasons, the Defendant is found guilty of the offence of careless driving contrary to S.130 of the Highway Traffic Act.

Released: November 20, 2014 Justice of the Peace Zeljana Radulovic

R. v. Eastman, 2014 ONCJ 635

Case Summary