Court Information

Ontario Court of Justice Toronto, Ontario

Case Name: R. v. Tajdeen

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

Between: Her Majesty the Queen, Prosecutor

And: Anwar Tajdeen, Defendant

Reasons for Judgment

Before: His Worship Mohammed Brihmi

Hearing Dates: July 29 and October 23, 2013

Judgment: January 6, 2014

Appearances:

• Ms. K. Prevost, City Prosecutor
• Mr. Paul Periti, Agent for the defendant

M. BRIHMI J.P. (Orally):

Introduction

[1] The matter before the court is a continuation of the trial that took place on the 9.00 a.m. docket of R court on July 29, 2013. On that day, the court heard from the prosecution four witnesses. This trial was adjourned to October 23, 2013 and the court heard from the defendant as well as closing arguments from both parties and it is before the court today for judgment.

[2] Mr. Anwar Tajdeen is charged with the offence of Unsafe Turn, Lane change that took place on September 1, 2012 at or around 8:50 a.m. at the intersection of Spadina Avenue and Bremner Boulevard in Toronto, contrary to section 142(1) of the Highway Traffic Act (H.T.A).

The Legislation

The legislation on this section reads as follows:

[3] The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.

[4] It is settled law that this section creates two separate offences: one offence is the failure to see first that such movement can be made in safety; the second offence is failure to give signal plainly visible to the operator of any other vehicle that may be affected by such movement: this is in reference to the decision of Justice Grant of the Ontario Supreme Court- High Court of Justice in R. v. Lebedorf, [1962] O.W.N 233 (H.C).

The Onus and Burden of Proof

[5] The court is satisfied that this regulatory offence is not an absolute liability offence or a mens rea offence. It meets the requirements that characterize a strict liability offence. Therefore, this offence places the onus on the Prosecution to prove its case beyond a reasonable doubt. It also opens the opportunity to the defendant to present a defence and avoid liability if the Court is satisfied, on a balance of probabilities, that the defendant acted with due diligence and took all reasonable care in all the circumstances. The defence will also be available if the defendant reasonably believed in a mistaken set of facts which, if true, would render the act or its omission innocent.

The Position of the Parties

[6] The Prosecutor's position is that Mr. Anwar Tajdeen moved from the centre lane (middle lane) of Spadina Avenue to make a right turn on Bremner Boulevard. She submits that he made a number of signals because he had to make a right turn to Bremner in a short distance and a short space of time. Furthermore, she submits that the heavy damage to Mr. Tajdeen's car on the passenger side and on the front passenger door is consistent with the information received that his Honda SUV was traveling Northbound on Spadina and making an unsafe right turn on Bremner Blvd and that the Kawasaki Motorcycle was travelling northbound on the Curb lane of Spadina Avenue.

[7] When Mr. Tajdeen indicates that he made a lane change from the centre lane to the curb lane, the prosecution submits that there was not enough time for Mr. Fong to stop before Mr. Tajdeen makes his right turn to Bremner Boulevard. Therefore, Mr. Tajdeen saw the collision occurs in the crosswalk and that is where the Motorcyclist hit his vehicle. The Prosecution submits that Mr. Fong's vehicle was actually in lane three when Mr. Tajdeen made his turn and it was Mr. Fong Motorcycle that was affected by that turn.

[8] The position of the defence is that the two crown's witnesses, Ms. Vizzard and Ms. Haymer, saw the impact but didn't see the lane from which Mr. Tajdeen was coming from and the officer never saw the accident. In regard to Mr. Fong, he was inconsistent and was driving fast because one witness heard his motorcycle coming which indicates that he was speeding.

[9] In addition, the Agent for the defendant submits that Mr. Tajdeen had limited time to make the lane changes. Each time he made a lane change, Mr. Tajdeen signalled, checked his mirror and then made a lane change. He also submits that his client made a lane change to the curb lane on Spadina Avenue (lane three) prior to the intersection. Furthermore, the accident took place within the intersection and the motorcycle ended up beyond the vehicle.

[10] At the outset, let me indicate that the evidence has revealed that the basic elements of the offence have been made out and there was one issue regarding the identity of the defendant as the driver of the Honda SUV that was involved in the collision that the court will address later on when dealing the motion of Non-Suit.

The Evidence of the Prosecution

[11] The court heard from the Crown's four witnesses. First, the court heard from Mr. Matthew Fong. He was the driver of the red Kawasaki Motorcycle. Mr. Fong's testimony could be summarized as follows:

[12] He testified that on September 1, 2012, he was operating a motor vehicle on his way to Metro Convention Centre. He took the Gardiner Expressway west and exited at Spadina Avenue to go northbound on his way to Front Street.

[13] When he was approaching Bremner Boulevard, Mr. Fong testified that the light was green and he was driving on the right hand lane or the curb lane going north, approximately at 40Km/h.

[14] He testified that he observed a Honda Pilot SUV in front of him. It was two car lengths, with the right turn signal on. The Honda SUV slowed down, but didn't stop; as it turned right. He indicated that he didn't have enough time to react, even though; he tried to put his brakes on.

[15] Mr. Fong testified that he hit the passenger side door and the front of the Honda Pilot. His motorcycle flew to the right hand side where he was in the middle of Bremner Blvd. In addition, Mr. Fong indicated that he collapsed and wasn't aware of what happened.

[16] Mr. Fong testified that he was on the right lane (the curb lane) and there are three lanes on Spadina Ave. North. He also indicated that he saw the indicator two or three seconds before impact that the driver's signal was on and the Honda was on the Second lane (Centre lane) of Spadina Avenue making a right hand turn to go to Bremner Boulevard eastbound.

[17] He testified that the driver of the Honda was two car lengths when he slowed down and one car length when he made the turn. Mr. Fong told the court that he was wearing his helmet and described his injuries, including partial fracture on the right hand, injuries to the left knee and he estimated the damage to his motorcycle to be around $8500.

[18] Under cross examination, Mr. Fong clarified that the Honda was already in Spadina Avenue, ahead of him by roughly six car lengths. In addition, he testified that when the Honda signalled and slowed down, it was two car lengths ahead of him and one car length when it started turning right to Bremner.

[19] In regard to his speed, Mr. Fong told the court that he was speeding, roughly 40km/h; between 40 and 50 Km/h and the impact took place on the middle of Spadina and Bremner, when the Honda turned right through the intersection and blocking his Lane.

[20] The Court also heard from the Prosecution Second witness, Ms. Justine Haymer. She witnessed the collision and saw the impact in front of her when the Motorcyclist hit the Honda SUV. Her testimony could be encapsulated as follows:

[21] Ms. Haymer testified that she was driving on Westbound on Bremner Boulevard and was waiting to make a left turn on Spadina Avenue. Her car was the first vehicle stopped on the Red light.

[22] Ms. Haymer testified that she saw the collision but didn't see what lane the Honda SUV was coming from. She also indicated that she saw the motorcyclist when it bounced off and skidded on the other side of Bremner Boulevard, to the left of her car and the impact took place at the middle of Bremner.

[23] The court also heard from the Prosecution third witness, Ms. Carol Vizzard. She was standing on the corner of Spadina Avenue and Bremner Boulevard, facing south, in order to take the Bus North. Her testimony could be summarized as follows:

[24] Ms. Vizzard testified that she observed the Honda SUV turning to Bremner Boulevard and she saw the Motorcyclist hit the car that was just turning directly on Bremner.

[25] She indicated that she didn't see what lane the large black car was coming from but it was turning on Bremner, just passed the lane of Spadina. According to her, the vehicle was going to her left, with the nose just past the lane from Spadina Ave. and moving into Bremner Blvd.

[26] Ms. Vizzard testified that she saw the red flash of the motorcycle and heard its noise and observed it when it slid toward the corner after impact.

[27] The court heard from the Prosecution fourth witness, Officer Sharon Leyva, Badge number 8966.

[28] Officer Leyva was on duty and assigned to Traffic Division. She was dispatched and investigated this personal injury collision. She took notes at the time and also charged the defendant with the offence before the court. Her testimony could be encapsulated as follows:

[29] Officer Leyva testified that this collision took place on Saturday, September 1, 2012 on the intersection of Spadina Avenue and Bremner Boulevard in the City of Toronto. Officer indicated that when she arrived at the scene, she observed a black Honda Pilot and a Motor cycle to the ground with a lot of debris on the ground.

[30] Officer Leyva indicated that the damage to the Honda was to the front passenger side door and to the front passenger side mirror that was knocked off and a dent to the wheel front passenger side. However, the damage to the Motor cycle was extensive and it had to be towed away.

[31] In regard to Spadina Avenue, Officer Leyva testified that it has three lanes going north, with a left turn lane. Furthermore, she testified that Bremner Blvd. has two lanes going East and two lanes going west and that the speed limit on Spadina is 50Km/h and on Bremner is 40Km/h.

[32] Officer Leyva testified that the road conditions were good, the weather was sunny and dry and temperature was 20 degree Celsius.

[33] Furthermore, she indicated that when she arrived, an ambulance was already on scene attending to the victim, the driver of the Motorcycle.

[34] Officer Leyva testified that the driver of the Black Honda Pilot, identified himself as Mr. Anwar Tajdeen, with a valid Ontario Driver Licence bearing his name and she was satisfied with his identity. She also indicated that the Black Honda Pilot has Ontario plate number: ADFY055.

[35] Furthermore, the officer told the court that the victim was riding a red Kawasaki Motorcycle, Model E2J.

[36] In addition, the Officer testified that she spoke to some witnesses, arranged to receive statements from them through emails and from information she gathered, including speaking to Mr. Tajdeen as well as from looking at the vehicle and the damages to the Honda Pilot, she also took measurements at the scene before going to the hospital and then charged Mr. Tajdeen with the offence he is facing today of Turn not in safety.

Officer Leyva testified that the damage to the vehicle was consistent with the information received which is that the Black Honda was traveling northbound on Spadina and making a right turn on Bremner Blvd. However, the Kawasaki Motorcycle was travelling northbound on the curb lane.

[37] Furthermore, Officer testified that the impact in the front side of the Honda was consistent of it making a right turn and the damage to the Motorcycle was complete and it had to be towed away.

[38] She also testified that the traffic control signals were working properly as she checked their cycle twice and they were functioning properly.

[39] Under cross examination, Officer Leyva told the court that she wasn't present at the scene at the time of impact and that the vehicles had moved and not in the area of impact. Furthermore, she saw debris everywhere, however they were mostly contained on Bremner Boulevard, on the south side and East of the intersection and no vehicle was travelling on eastbound of Bremner after the Officer arrived because of the investigation. However, the traffic was moving North and South on Spadina Avenue.

In regard to Mr. Tajdeen as the driver of the Honda Pilot, Officer Leyva testified that she asked the question who was the driver of that vehicle and Mr. Anwar Tajdeen advised her that he was the driver.

Motion of Non-Suit

[40] The Agent for Mr. Anwar Tajdeen introduced a motion of Non-Suit. He submits that the statement identifying his client, Mr. Tajdeen, as the driver of the Honda Pilot wasn't done through a process of a Voir Dire to ensure its voluntariness. Mr. Agent asked the court to ignore all the evidence heard because the identity of the defendant is one essential element of the offence and it wasn't proven and done properly through a Voir Dire.

[41] The court heard submissions from Prosecution indicating that Mr. Tajdeen came forward and identified himself to the Officer when she asked the question who is the driver of the vehicle involved in the collision. Mr. Tajdeen has a duty and he came through and provided his Driver Licence to the Officer.

[42] The court is aware of the responsibility of the driver of a motor vehicle to furnish the investigating officer with information as may be required and to report an accident, especially if it involves personal injuries and damages. This is clear in s. 199(1) and s. 200(1) of the HTA.

[43] In regard to this motion, the court wasn't provided with any case law by both parties. However, it doesn't appear that voluntariness needs to be established when the defendants identify themselves to a Police Officer. In R. v. Jarecsni, [2008] O.J. No. 4565 (Ont. C.J), Justice G.A. Pockele held in paragraph Seven: Identifying oneself is not the same as providing a written statement to the police concerning involvement in a crime. It is merely identification.

[44] In addition, the court made another reference to another Ontario Court of Justice decision in Brampton (City) v. Bains, [2007] O.J. No. 5679 (Ont. C.J). Therefore, evidence as to a statement made to an investigator by a defendant that they were the driver of a vehicle or that they occupy a property doesn't require a Voir Dire to determine their voluntariness.

[45] After reviewing submissions from both parties, the court is satisfied that Mr. Tajdeen stepped forward and provided his driver licence when the Officer asked a question regarding who was the driver of the Honda. He wasn't threatened or intimidated and there was no gun held to his head to come forward.

[46] Therefore, the court finds that the prosecution has presented all admissible evidence, direct or circumstantial of the case and the court denies the motion for Non-Suit.

The Testimony of Mr. Tajdeen

[47] The court heard from Mr. Anwar Tajdeen. His testimony could be summarized as follows:

[48] Mr. Tajdeen testified that he was coming from Etobicoke on Gardiner Expressway, eastbound and he turned left, going northbound on Spadina Avenue.

[49] He told the court that there are two lanes to turn left to Spadina from the Gardiner and that he was on the left lane. In addition, he testified that there are three lanes going northbound on Spadina Avenue. The first lane to the left is lane one; where he turned when coming from Gardiner. The lane two is the middle lane and the lane three is the curb lane.

[50] Mr. Tajdeen indicated to the court that as soon as he turned, he was on lane one, going northbound. Then, a short period, he put his signal on, looked at the blind spot, the side and the rear mirror and then switched to lane two.

[51] Furthermore, he testified that from lane two, he wants to go to lane three to turn over and make a right turn on Bremner Boulevard. When asked about the distance from Bremner or how far was he when he wants to make this movement, he testified that he wasn't 100% sure; however he estimated that it was a distance of three car lengths.

[52] Mr. Tajdeen testified that all three lanes on Spadina had cars driving on them. He also indicated that the Curb lane (Lane three) had no traffic on it when he was making the lane change from lane two. Furthermore, Mr. Tajdeen told the court that he signalled, looked at the side mirror, the rear mirror as well as the blind spot and he moved to lane three, where he could see all the way to Lakeshore through his side mirror.

[53] In addition, he testified that he made the lane change before hitting Bremner Boulevard and that Bremner Boulevard was very close.

In regard to the question if there are any markings at the intersection, Mr. Tajdeen testified that the intersection of Bremner and Spadina has white lanes on all four intersections and there are red bricks identifying the end of the road on Spadina as well as on Bremner; delineating the crosswalk.

[54] Mr. Tajdeen testified that he achieved the change of lane from lane two to lane three in a very short distance of one car length to make the turn on Bremner. He also told the court that as soon as he passed the white lane on the curb lane of Spadina Avenue to turn right on the curb side lane of Bremner Boulevard (Second lane eastbound) he heard a loud bang. He also told the court that he was driving there at a speed of 20 to a maximum of 30 km/h.

[55] When asked about the traffic on Spadina Avenue, he indicated that north of Bremner Boulevard, the traffic was on constant flow on all the three lanes, however the traffic was moderate. It was heavy on lanes one and two and no much traffic on lane three.

[56] Again, Mr. Tajdeen indicated to the court that before making his turn on Bremner that he gave his signal and that he always looks at the side before making such turn.

[57] Mr. Tajdeen told the court that the first time he saw the motorcyclist was after the collision and that he didn't see him before because he must be driving very fast.

[58] Furthermore, he testified that his car was on the angle on Spadina and the motorcyclist was going toward the middle of the Island on Bremner on the left of his car and that he hit the passenger side of his car.

[59] While under Cross-examination, Mr. Tajdeen testified that the collision took place at the intersection and crosswalk of Bremner Boulevard. He also testified that the vehicles were not moved when the officer arrived and that the motorcyclist hit the front passenger side and fender of his car.

[60] He also told the court that he never saw the cyclist before the collision and that he agrees that he was close to the intersection, about a car length before making the right hand turn to Bremner. In addition, he repeated that the motorcyclist was not in lane three because he looked diligently.

[61] In regard to the question that he moved quickly to make lane changes, he agrees that he made two separate lane changes in a limited time and distance however at different times because it is the only way to make lane changes at that location. He told the court that he moved from Gardiner to the first lane and immediately started to make lane change to lane 2 and then to lane three. Each time, he looked, signalled and then changed the lane.

[62] He also indicated that there were always cars on the three lanes that Saturday morning and that he effectively made his lane change to the curb lane. He also testified that after the collision, his vehicle was in the turning stage in the middle of Bremner crosswalk on lane two (curb lane). However, because of the strong impact, Mr. Fong went on one side and his motorcycle went on the other side. Mr. Fong ended up in the curb side and his motorcycle ended up in the median or the raised cement portion of the road that divides the east and the west of Bremner Boulevard.

Analysis and Finding of Facts

[63] The court takes notes that neither party presented the court with a case law or a book of authorities in regard to s. 142(1) of the Highway Traffic Act, supra.

[64] As indicated earlier, this strict liability offence provides Mr. Tajdeen with the opportunity to escape conviction if he could prove that he had taken all reasonable steps for the circumstances or the lack of fault or negligence in committing the actus reus of the offence when the prosecution meets its onus.

[65] In their respective submission and on behalf of his client, Mr. Agent presents a due diligence defence and submits that Mr. Tajdeen did what is required of him to ensure that his movement and manoeuvre is done in safety when other vehicles can be affected. Even though, he had limited time to make the lane changes, each time he made one lane change, Mr. Tajdeen signalled, checked his mirror and then made a lane change.

[66] Furthermore, he submits that his client made a lane change to the curb lane (Lane three) on Spadina Avenue prior to the intersection and Mr. Tajdeen indicated that he could see all the way to Lakeshore through his side mirror and he didn't see the motorcyclist.

[67] In her submission, the Prosecution submits that it has proven beyond a reasonable doubt that Mr. Tajdeen moved from the centre lane (middle lane) of Spadina Avenue to make a right turn on Bremner Boulevard in a short distance and a short space of time. In addition, she submits that Mr. Fong was travelling northbound on the Curb lane of Spadina Avenue and that the heavy damage to Mr. Tajdeen's car on the passenger side, on the front passenger door is consistent with the information that his Honda SUV was traveling Northbound on Spadina and making an unsafe right turn on Bremner where it collided with the motorcyclist.

[68] For the court, there is no dispute that the prosecution has proven beyond a reasonable doubt the actus reus of the offence, that Mr. Tajdeen had made an unsafe turn that involved the collision with the motorcycle of Mr. Fong when he was making an unsafe right turn from Spadina Avenue to Bremner Boulevard.

[69] As Mr. Agent presented the defence of due diligence and created a reasonable doubt on parts of the evidence of the prosecution, in this situation where a reasonable doubt is presented, it is incumbent upon the court to refer to the decision of the Supreme Court of Canada in R. v. W. (D), [1994] 3 S.C.C. 521, [1994] S.C.C. No. 91 (QL) in which Cory J. set out the credibility test as follows:

1. First, if you believe the evidence of the accused, obviously you must acquit.

2. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

3. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[70] In terms of credibility, on one hand, the court finds that all the witnesses and the defendant were doing their best to tell the truth about what happened and what they have seen.

[71] Mr. Fong told a clear story in a straight forward manner. He was not shaken while under cross examination. He clarified one inconsistency about his speed when he indicated that he was speeding roughly 40Km/h. The court takes note that the speed limit on Spadina Avenue is 50 Km/h. Therefore, there is no indication before the court that he was speeding over the speed limit.

[72] In regard to the testimony of Ms. Haymer and Ms. Vizzard, they both told a short and straightforward story about what they have observed.

[73] However, Officer Leyva who didn't witness the accident told a credible, clear, detailed and concise story.

[74] On the other hand, the court finds the evidence of Mr. Tajdeen to be somewhat problematic. For the court, it does not make sense that when he moved to the curb lane from the centre lane that he was able to see from his side mirror up to lakeshore and there was no vehicle on the curb lane. Mr. Tajdeen assumption that no one was coming from the curb lane is not reasonable and somewhat erroneous as he commenced his lane change and his right turn in a short distance and limited time. In addition, Mr. Fong was indeed driving from the Curb lane and the collision between the Honda SUV and the motorcyclist took place at the intersection when Mr. Tajdeen was turning on Bremner.

[75] Furthermore, Mr. Tajdeen testified that there were always cars on the three lanes on Spadina Avenue and that north of Bremner, the traffic was on constant flow on all three lanes; with heavy traffic on lane one and two.

[76] The court is satisfied that Mr. Fong was on his motorcycle on the curb lane. It is reasonable to believe that when he exited the Gardiner Expressway to Spadina Avenue, the first lane to use to go northbound is the curb lane which could take him to Front St and then to the Metro Convention Centre. Therefore, the court finds that Mr. Tajdeen assumption that there was no vehicle coming from the curb lane is not a reasonable mistake of fact that would have rendered the defendant's unsafe turn innocent.

[77] In regard to the defendant reliance upon the second branch of the defence of due diligence, namely that he took all reasonable steps to make his right turn to Bremner Boulevard. In support of his position, Mr. Agent submits that Mr. Tajdeen did what is required of him to ensure that his movement and manoeuvre is done safely when other vehicles can be affected. Specifically, he submits:

• Mr. Tajdeen was diligent in signalling and checking his mirrors before making a lane change,
• He checked his blind spot and the side mirror when he moved to the curb lane and no vehicle was there,

[78] On cross-examination, Mr. Tajdeen agrees that he moved quickly to change the lanes and that he made two separate lane changes in a short space of time and a short distance.

[79] Furthermore, in his testimony, Mr. Tajdeen estimated that he was about a car length before making the right hand turn to Bremner and in a distance of three car lengths from Bremner Boulevard when he moved from lane two to the curb lane; however he indicated that he wasn't 100% sure about it.

[80] The court accepts the evidence that Mr. Tajdeen made an unsafe right turn on Bremner Boulevard in a short distance where he wasn't able either to see the motorcycle of Mr. Fong or to stop to avoid colliding with him. Furthermore, the Kawasaki Motorcycle was red in colour and it is easily visible and noticeable. In addition, the noise that was coming from the motorcycle that could have been interpreted as it was speeding, it could also be viewed as a sign that a vehicle was coming from the curb lane and requires more caution and prudence form Mr. Tajdeen before making his turn on Bremner Boulevard.

[81] Mr. Agent submits that the driver of the motorcycle should be able to stop to avoid the collision; however, it is not the case for the driver of the Honda SUV, which is a much larger car. The court accepts the evidence that Mr. Fong didn't have enough time to react and to stop, even though; he tried to put his brakes on.

[82] In addition, defence submits also that dealing with Motorcycle isn't the same as dealing with an SUV or a car because the Motorcycle is very narrow and is able to squeeze by. For him, it appears that the motorcyclist is going too fast and trying to get by and made a manoeuvre that he couldn't get off. He also tried to pass on the right which he isn't allowed to do. The court accepts that the SUV is different in size than the motorcycle; however, there is no evidence before the court that Mr. Fong was overspending or involved in a dangerous driving or a perilous manoeuvre.

[83] The court accepts the evidence that Mr. Fong hit the front passenger side and the fender of the Honda SUV. However, being involved into the accident doesn't mean that he is in fault. In addition, the actus reus of the offence in this matter is not the collision but it is the act of Mr. Tajdeen making an unsafe right turn.

Decision

[84] Based on the totality of the evidence before this Court, including the reasons provided earlier, I am satisfied that the prosecution has proved the actus reus of the offence and that there is no evidence of due diligence on the part of Mr. Tajdeen which could have exculpated him.

[85] As such, I am satisfied that the prosecution has proven this case beyond a reasonable doubt. Therefore, the court register a conviction against Mr. Tajdeen as charged.