R. v. Angelidis

Court Information

Case Name: R. v. Angelidis

Between: Her Majesty the Queen and Magdalene Angelidis

Court File No.: 486299913102824-00

Court: Ontario Court of Justice

Location: Toronto, Ontario

Judge: L. Cruz J.P.

Heard: September 15, 2014; September 17, 18, 19, 2014; and December 2, 2014

Reasons for Judgment Released: February 13, 2015

Counsel

For the Prosecution: Mr. Derek Knipe

For the Defendant: Ms. Susan Chapman

A. Overview

[1] The defendant, Magdalene Angelidis, is a bus driver employed by the Toronto Transit Commission. On January 23rd, 2013, the defendant was driving a bus in the City of Toronto. At that time an accident occurred in which the bus collided with a pedestrian, Ms. Wendy Martella, who was killed as a result. Consequently, the defendant was charged with Failing to Stop at a Red Light and Careless Driving.

[2] The trial commenced before the Court on September 15th, 2014, and continued thereafter on September 17th, 18th, 19th, and December the 2nd, 2014. At the conclusion of the trial on December 2nd, 2014, the Court reserved its decision until today. This is my judgement.

[3] The Court recognizes that this has been a long and, at times, difficult process for both sides. The Court acknowledges the demonstrated restraint, respect, and maintenance of court decorum by both sides, and expects the same for today's proceedings.

[4] During the course of the trial there were 75 exhibits entered before the Court. These exhibits are:

• Exhibit Number 1: Diagram of intersection by Sripathmarajaah Simon (civilian witness)
• Exhibit Number 2: Diagram of intersection marked by James Bryson (civilian witness)
• Exhibit Number 3: Diagram of intersection marked by Marco-Louie Telesca (civilian witness)
• Exhibit Number 4: Curriculum Vitae of Detective Janice Woronchak
• Exhibit Number 5: Collision Reconstruction Report by Detective Woronchak
• Exhibit Number 6(a): Post-collision diagram by Detective Woronchak
• Exhibit Number 6(b): Video footage from the TTC bus
• Exhibits Numbers 7 through 13: Photographs (collectives a, b, c, and numbers 1 through 50)
• Exhibit Number 14: Map of accident location
• Exhibits Numbers 15 through 19: Photographs of bus speedometer, exterior, and interior of the bus, back of the bus interior, and driver's side mirror on the bus
• Exhibits Numbers 20 through 53: Front door camera still photos (numbers 1 through 34)
• Exhibits Numbers 54 through 69: Front facing camera still photos (numbers 1 through 16)
• Exhibits Numbers 70 through 74: Rear camera still photos (numbers 1 through 5)
• Exhibit Number 75: Curriculum vitae of Mr. Angelo DiCicco

[5] As a result of a judicial pre-trial the following concessions were made and as such there was no dispute with respect to the following facts:

• Identity of the defendant
• Jurisdiction of the Court
• Time and date of the alleged offence
• The TTC bus made contact with a pedestrian

B. Issues Before the Court

[6] The issues before the Court are whether Ms. Angelidis' driving was of such a nature as to constitute Careless Driving within the meaning of section 130 of the Highway Traffic Act and whether the signalized light was red when she entered the intersection as per section 144(18) of the Highway Traffic Act.

[7] Eglinton Avenue East and Sinott Road is an intersection controlled by automatic traffic signals as well as pedestrian signals. Eglinton Avenue East has three westbound lanes and three eastbound lanes. The eastbound curb lane contains a bus bay and is used by motor vehicles making a right turn heading south onto Sinott Road. Sinott Road only runs south from Eglinton Avenue East, and has one northbound lane and one southbound lane.

C. Case for the Crown

[8] The prosecutor called three civilian witnesses as well as Detective Woronchak, an expert witness on accident reconstruction.

First Civilian Witness – Mr. Sripathmarajaah Simon

[9] The first civilian witness for the prosecution, Mr. Sripathmarajaah Simon, testified that:

• On the day in question he was driving his 2001 Honda Accord northbound on Sinott Road. He was stopped at a red light waiting to make a right turn onto Eglinton Avenue East. There were no other motor vehicles stopped in front of him at the intersection and the lighting was clear and the road conditions were "fine".
• The bus was travelling from a west-to-east direction on Eglinton Avenue East when it made a stop at the bus stop. The light was green when the bus started its motion from the first stop and then stopped again. While the light facing him was red, he observed a female pedestrian walking westbound from his east side, wearing a head covering.

[10] Under cross-examination, Mr. Simon testified that, despite not mentioning a second stop in his statement to police, the bus made three stops. The light facing him was green when the bus stopped a third time, partially blocking his vehicle. The second time the bus stopped, the traffic light for the bus was yellow and the bus was travelling very slowly. Mr. Simon did not notice any other vehicles crossing the intersection. He could not see the bus driver after the second stop and did not observe any unusual movements of the bus. Between the second and the third stop made by the bus, he did not observe the colour of the lights for eastbound and westbound traffic.

[11] In Exhibit Number 1, Mr. Simon marked the front of the bus after the second stop as being past the most easterly line of the pedestrian crosswalk on the west side of the intersection.

Second Civilian Witness – Mr. James Bryson

[12] The second civilian witness called by the prosecution was Mr. James Bryson. Mr. Bryson testified that:

• He was on his way home from work and had boarded Ms. Angelidis' bus at the Yonge Street and Eglinton Avenue East stop. He was seated at the very back corner next to the window on the driver's side and added that the back of the bus is elevated. He sat in the same place the entire time and had a clear and unobstructed view of the lights at the intersection.
• The bus went into the bus lane as it approached the Sinott Road bus stop, and while picking up passengers he observed the light to be green for the bus. The hand signal for pedestrians changed to red on the north-east corner. The bus started and then stopped a second time to let on a passenger.
• At this time he also noticed a pedestrian facing northbound standing on the corner and waiting to cross on the most easterly side of the intersection. He estimated five seconds elapsed from the first to the second stop. The light was yellow and then red after the second stop. The bus was in motion when the light changed to red. He estimated the speed of the bus to be approximately 20 kilometres per hour following the second stop. Prior to hearing a thud at the third stop, he did not hear or feel any braking motion on the bus.

[13] Mr. Bryson marked the front of the bus in Exhibit number 2 as being within the lines of the pedestrian crosswalk at the time of the second stop.

[14] On cross-examination, Mr. Bryson stated that he could not be certain where the front of the bus was at the time of the second stop and clarified the light turned yellow from the second stop.

Third Civilian Witness – Mr. Marco Telesca

[15] The final civilian witness to give evidence for the prosecution was Mr. Marco Telesca. Mr. Telesca testified that:

• He had been at the TD Canada Trust Bank on the north side of Eglinton Avenue East, west of the intersection when he saw Ms. Angelidis' bus travelling east.
• Mr. Telesca "jaywalked" across Eglinton Avenue East, clarifying that he had actually ran, not walked, behind the bus.
• Mr. Telesca stated that he had just hopped onto the sidewalk when the bus began moving. He stopped running at this time, thinking he had missed the bus, when the bus stopped a second time. He boarded the bus, paid his fair, obtained a transfer, and had a short verbal exchange with the bus driver regarding his attire. The bus was not in motion during the verbal exchange and only began to move as he began to walk towards the back of the bus.
• Mr. Telesca grabbed onto a yellow pole located approximately two feet behind the bus driver and was facing north when the bus came to an abrupt stop, causing him to swing around into a south facing direction. Mr. Telesca estimated two to four seconds elapsed between his walking back and the bus coming to an abrupt stop.
• He recalled hearing a loud thump and thinking the bus had run over the curb. Mr. Telesca looked forward and saw the bus driver with her head in her hands, looking distressed with her right leg shaking. The driver reportedly had a cell phone in her hand which he assumed was to call police.
• He described the light conditions as having been bright outside and the road conditions to be wet, but without slush.

[16] Under cross-examination, Mr. Telesca stated he knew "the light was green" for the bus that is why he "had to jaywalk" to catch the bus when it was stopped in the bus bay. Mr. Telesca initially placed the front the of the bus at the time of the second stop as being in the middle of the two white lines marking the pedestrian crosswalk.

[17] Upon review by the defence of his videotaped statement given to police on February 14th, 2013, Mr. Telesca corrected his previous marking on Exhibit Number 3 to reflect the front of the bus at the time of the second stop as being past both white lines and in the middle of the intersection.

Expert Witness – Detective Woronchak

[18] Detective Woronchak is employed by the Toronto Police Traffic Services Division and testified for the prosecution in regard to collision reconstruction. Both the prosecution and the defence agreed that Detective Woronchak is an expert witness. Based on submissions of both counsel and after review of her curriculum vitae, the Court found that Detective Woronchak is an expert with respect to collision reconstruction.

[19] Detective Woronchak testified that:

• After she analyzes all the evidence, including vehicle damage, witness statements, scene evidence, and autopsy, she is able to reconstruct how and why a collision occurred. She also stated that she reconstructs from the damage and works backwards. She has received training as noted in her curriculum vitae, Exhibit Number 4, including in July 2008 Subway and Streetcar Transportation Training from the Toronto Transit Commission (TTC).
• Eglinton Avenue East and Sinott Road is an intersection controlled by automatic traffic signals as well as pedestrian signals. Detective Woronchak described Eglinton Avenue East as a major arterial road with three lanes going westbound and three lanes going eastbound. She explained the eastbound curb lane as being an HOV lane for High Occupancy Vehicles. This lane contains a bus bay to pick up and drop off passengers, and is used by motor vehicles making a right turn heading south onto Sinott Road. The posted speed limit on Eglinton Avenue East is 60 kilometres per hour.
• Detective Woronchak described Sinott road as only running south from Eglinton Avenue East and having one northbound lane and one southbound lane. Sinott Road has an unposted 50 kilometre per hour speed limit.
• She personally tested and measured the traffic lights and found them to be in proper functioning order in a green, amber, and red rotation. Detective Woronchak timed the amber light to be four seconds, followed by an all-way three second red light for traffic in all directions at this intersection.
• The weather conditions were very cold with a wind chill factor of minus 18 degrees.
• She made note of a skid mark within the eastbound lane approximately point-six metres east of the east line of the east crosswalk. This skid mark measured 5.4 metres in length.
• After her analysis, Detective Woronchak determined the following:
  1. It took the bus between 6.63 to 7.07 seconds to reach the area of impact from the second stop position
  2. The bus speed was between 18 and 19 kilometres per hour
  3. The area of impact was in the east crosswalk area within the eastbound curb lane
  4. She also concluded that Ms. Martella, the victim, was not on the roadway when the bus started from its second stop position

[20] Upon cross-examination, Detective Woronchak stated that in her diagram, Exhibit Number 14, she "ranged" where the front of the bus was following the second stop because, in her words, it is impossible to know where the front was. Detective Woronchak then confirmed that the bus was within the intersection when it came to a second stop position.

[21] She was questioned extensively by the defence regarding the results of her acceleration test as well as the perception/reaction time, the time our brain takes to react to a perceived threat, noted in her report. Detective Woronchak testified she averaged out three test results at a "normal speed of a regular driver" to obtain the acceleration rate, but there is no indication what a "normal speed" is or what speed she based such on.

[22] Detective Woronchak testified she does not possess the proper licence to drive a bus, but that she personally tested the bus in the middle lane of Eglinton Avenue East, adding the bus has air-controlled seats and she was not sure of where the bus driver's eyesight was because she is shorter than the bus driver.

D. Case for the Defence

Defendant's Testimony – Ms. Magdalene Angelidis

[23] Ms. Magdalene Angelidis testified in her own defence. She told the Court she was the bus driver at the time of the incident. Ms. Angelidis first obtained her B licence in 1996 and was operating a school bus with Laidlaw Transportation at that time. She then worked as a driver trainer for STOCK Transportation School Buses for two years, followed by a transit supervisor position with York Region Bus Service for approximately one year.

[24] Ms. Angelidis testified that on January 23rd, 2013, she was 39 years of age and had been employed as a bus driver with the Toronto Transit Commission (TTC) since August 2nd, 2010.

[25] On January 23rd, 2013, Ms. Angelidis started her day at 5:27 a.m. and was relieved from her split shift at 11:20 a.m. Ms. Angelidis then went to the gym before reporting back on duty at 2:27 p.m. at the Warden and Comstock yard. Ms. Angelidis noted that she has always worked a split shift since being hired by the TTC.

[26] At 2:27 p.m. Ms. Angelidis reported to a clerk, who ensures drivers are fit for duty, as well as hands out transfer stacks. Ms. Angelidis was assigned Bus Number 7666 and her route was the 34 Eglinton C. Ms. Angelidis then testified to having made a safety inspection of her bus, including brake tests, lights, and extensions. Having completed the approximate 20-minute safety inspection, she signed off a paper regarding the safety of her bus.

[27] Ms. Angelidis then drove her bus in a not-in-service mode to the Yonge and Eglinton Station, where she began to pick up passengers on the 34 C platform and proceeded eastbound along Eglinton Avenue East towards her end destination at Kennedy Road.

[28] Ms. Angelidis testified she drove her bus into the bus bay at Eglinton Avenue East and Sinott Road bus stop and picked up one female passenger. She closed the doors, scanned her mirrors, and began to re-enter a lane of traffic. The light at the intersection was green for her. Mid-manoeuvre Ms. Angelidis testified to seeing, in her left rear view mirror, a male pedestrian leave the centre median diagonally across traffic. Ms. Angelidis testified to having stopped her bus immediately upon losing sight of the pedestrian out of concern for his safety. She testified that the front of her bus was beyond the most easterly line of the crosswalk on the west side of the intersection.

[29] When Ms. Angelidis saw the pedestrian reappear, this time on her right side rear view mirror. She decided to open the doors for him. She then had a brief verbal exchange with him and handed him a transfer, noting the bus was not in motion during the exchange.

[30] At this time, Ms. Angelidis testified to having lost sight of the traffic light, but perceiving it to be green because the two motor vehicles facing northbound were stopped with no other vehicles impeding their way. Ms. Angelidis observed a pedestrian, Ms. Martella, standing on the south-east corner of the intersection. After scanning left to right, having perceived no immediate threat, she proceeded through the intersection.

[31] Ms. Angelidis testified that she immediately began to swerve her bus away once she observed the pedestrian step onto the roadway. Ms. Angelidis was able to bring her bus to a stop using her emergency brake. She then called for help using buttons that are connected to the main TTC control that are used for emergencies only. Ms. Angelidis described her mental stated as being in shock and she was concerned for Ms. Martella's condition after colliding with the pedestrian.

[32] Upon cross-examination, Ms. Angelidis confirmed the doors will not open with the bus in motion and agreed the doors were completely open after the second stop at 3:56:18.

Expert Witness – Mr. Angelo DiCicco

[33] A voir dire hearing was held regarding qualifying Mr. Angelo DiCicco as an expert witness for the defence in the area of driving instruction.

[34] Mr. DiCicco testified that he is employed as a general manager for Young Drivers of Canada in the Greater Toronto Area. According to Mr. DiCicco, Young Drivers of Canada is a national driver training program that first started its business 40 years ago and was initially developed for young drivers. He explained the program has evolved and now instructs novice drivers of all ages, new immigrants, as well as professional drivers. Mr. DiCicco was a driving instructor and classroom teacher for 9 years, he was a Young Drivers of Canada franchisee for 10 years in North Bay, and has been a general manager for the past 17 years. While Mr. DiCicco has no experience training TTC drivers specifically, he does have experience training commercial drivers and public transit bus drivers for Class B and Class F licences.

[35] The Court ruled Mr. DiCicco to be an expert witness in the area of driving instruction given his training, years of experience, and specialized knowledge in this area. Mr. DiCicco was presented with a number of hypothetical scenarios by both sides and asked to give his expert opinion on how a driver should proceed.

[36] It was Mr. DiCicco's expert opinion that "a reasonably prudent person would clear the intersection" if they are in the intersection when the light is amber, and even if the light changed to red once the driver has already initiated the motion on an amber light. He added the driver must proceed through the intersection with extreme caution.

E. Credibility

[37] In conducting the W.D. test, as set out by the Supreme Court of Canada in R. v W.(D.), [1991] SCJ No. 26, the Court finds the testimony of the three civilian witnesses to be credible and truthful to the best of their recollection, taking into account the time that has elapsed since the collision occurred in 2013.

[38] Mr. Simon's position, being the lead car stopped on Sinott Road, gave him a clear and unobstructed view of the whole intersection. Mr. Bryson's position, from his position as a passenger seated in the rear of the bus, had a clear and unobstructed view of the light signals on the north-east corner facing Ms. Angelidis. Mr. Telesca, being a passenger standing at the front of the bus, was able to testify as to the movement of the bus and any evasive action taken by Ms. Angelidis such as sudden braking.

[39] Evidence of each of these witnesses was not only consistent, but corroborated each others' testimony with respect to the bus being within the intersection after the second stop, the slow speed of the bus once it began its motion again after the second stop, and the fact that the bus made three stops.

[40] The Court finds Detective Woronchak's evidence to be credible; however, her testimony was, at times, inconsistent with her collision reconstruction report. In her analysis of the onboard TTC bus front-facing camera, appearing on page 22 of her report, she notes the pedestrian was visible between 15:56:21 to 15:56:24; however, she testified on the stand that Ms. Martella actually became visible at the twenty-nine second mark and should be in the subsequent timeframe. Also in her analysis on page 22 of her report, she indicates that Ms. Martella was walking eastbound; however the front-facing video clearly shows Ms. Martella was walking westbound. Ms. Martella walking westbound was further corroborated with Mr. Simon's testimony.

[41] The Court notes that Detective Woronchak has received special training from the TTC regarding the operation of streetcars and subways, but not buses. On page six of her report, Detective Woronchak notes she attended on Wednesday, January 23rd, 2013, at 5:24 p.m. to reconstruct a collision involving a bus and a pedestrian. Her report refers to her performing deceleration and acceleration road tests; however, there are no details as to the date, time, and weather conditions of when these tests were conducted.

[42] She admitted to not possessing the proper licence to drive a bus. On page 13 of her report, Detective Woronchak notes the purpose of the tests was "to simulate the vehicle's movement on the roadway that was covered in the collision". While on the stand, she further explains the reason for doing these tests in the eastbound middle lane of Eglinton Avenue East as opposed to the curb lane where the bus actually was, because the road was "too bumpy" on the curb lane. Detective Woronchak failed to mimic the trajectory of the TTC bus driven by Ms. Angelidis.

[43] Furthermore, Detective Woronchak testified that when testing the bus she "pressed the accelerator as a regular driver" however, no context provided as to such. Based on this, the evidence of Detective Woronchak does not give this Court any confidence as to the accuracy of the deceleration and acceleration tests she conducted and, as such, has placed no weight on them.

[44] Bearing in mind that the burden of proof lays with the Crown, the Court found the driver, Ms. Angelidis' evidence to be sincere and credible, and that she provided a plausible explanation for the sequence of events.

[45] The Court found, the expert driving instructor, Mr. DiCicco's evidence to be clear, concise, and credible. It was Mr. DiCicco's expert opinion that drivers, when proceeding through an automated signalized intersection on a green light, and this light turns amber or even red while their motor vehicle is in motion, the correct maneuver is to continue to clear the intersection albeit cautiously.

F. The Law

Red Light – Fail to Stop Charge

[46] The Court will address the Red Light Fail to Stop charge first. Section 144(18) of the Highway Traffic Act reads as follows:

Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown.

[47] Section 144(1) of the Highway Traffic Act defines "intersection" to include "any portion of a highway indicated by markings on the surface of the roadway as a crossing place for pedestrians."

[48] And further Section 144(5) of the Highway Traffic Act states:

(5) A driver who is directed by a traffic control signal erected at an intersection to stop his or her vehicle shall stop,

(a) at the sign or roadway marking indicating where the stop is to be made;

(b) if there is no sign or marking, immediately before entering the nearest crosswalk; or

(c) if there is no sign, marking or crosswalk, immediately before entering the intersection.

[49] In R v. Lacroix [2011] OJ No 2332 (ONCJ 270)-par.118 (O.C.J), it was established that the actus reus of the offence of Red Light – Fail to Stop requires the Crown to prove beyond a reasonable doubt that the defendant's vehicle is located prior to the crosswalk where there is no indicated stop line when the light governing his or her direction of travel is red. It must be proven that the light governing the defendant's direction of travel is red "as the defendant's vehicle approached that light…."

[50] There is compelling evidence from the civilian witnesses' testimony, along with the TTC onboard video, that Ms. Angelidis, after stopping for passengers at her first stop, departed on a green light.

[51] The Crown's expert witness concluded Ms. Martella was not on the roadway when the bus started its motion from its second stop position. The prosecution argued that the front of Ms. Angelidis' bus was within the pedestrian crosswalk lines when she stopped a second time. Mr. Bryson testified he could not be certain where the front of the bus was at the time of the second stop. The Crown's own expert witness confirmed on cross-examination that the bus was within the intersection when it came to a second stop.

[52] Whether Ms. Angelidis stopped within the pedestrian crosswalk lines or past the most easterly line, it matters not because, according to the evidence that the Court accepts, she was already in the intersection when the light turned red for her. Having analyzed both the TTC onboard video and Detective Woronchak's measurement results of the traffic light having a four-second amber light, the Court finds there is reasonable doubt as to the colour of the light governing Ms. Angelidis' direction after her second stop.

[53] Red Light – Fail to Stop is categorized as an absolute liability offence which requires only proof of the actus reus. The Crown has failed to prove beyond a reasonable doubt the actus reus on the charge of Red Light – Fail to Stop, and as such the Court finds Ms. Angelidis not guilty of this charge.

Careless Driving Charge

[54] Section 130 of the Highway Traffic Act states:

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

[55] Careless Driving is categorized as a strict liability offence for which the defence of due diligence is available.

[56] The test for Careless Driving has remained constant since the Ontario Court of Appeal in R v. Beauchamp (1953) O.J. No. 495 (Ont.C.A.). The test is as follows:

• The evidence must be such as to prove beyond a reasonable doubt that the defendant drove without due care and attention or without reasonable consideration for others using the highway.
• The standard of care and skill is not one of perfection. Rather, it is reasonable degree of skill, and what a reasonable person would do in the circumstances.
• The use of the term "due" means care owing in the circumstances. While the legal standard of care remains the same – what a reasonable person would have done in the circumstances, the factual standard is constantly shifting, depending on the road, visibility, weather conditions and any other condition that ordinary prudent drivers would take into consideration.
• The law does not require a driver to exhibit perfect nerve and presence of mind, enabling them to do the best thing possible. It does not expect them to be more than ordinary people. Drivers of vehicles cannot be required to regulate their driving as if in constant fear that other drivers, who are under observation, and apparently acting reasonably and properly, may possibly act a critical moment in disregard for the safety of themselves and other users of the road.
• The standard is objective, impersonal and in no way related to the degree of proficiency or experience of a particular driver.
• The conduct must be of such a nature that it could be considered a breach of duty to the public, and deserving of punishment.
• The test where an accident has occurred, is not whether the accident would not have happened if the defendant had used greater skill or care, but whether it was proven beyond a reasonable doubt that the defendant, in light of the existing circumstances of which he/she knew or should have known, failed to use due care and attention or to give to other users of the highway the consideration that a driver of ordinary care would have used, or given the circumstances.

In R v. Globocki [1991] O.J. No. 214 (Ont.Ct.(Prov.Div.)), the Court held that in each case "it is necessary to consider whether and to what extent the defendant parted from the standard appropriate to the factual circumstances facing the defendant". This case also stands for the principal that:

…where an accident has occurred, the fact that serious injury or death has resulted is not, except in unusual cases, relevant to an assessment of whether there has been a departure from the standard of care which would justify a finding of careless driving.

And in R v. Belisle [1992] Y.J. No. 119, the Court expressed that principal in this way:

…in law the Court must focus on the elements alleged to constitute careless driving, and not on the consequences of the driving, regardless of how serious or tragic the consequences of Careless Driving may be.

[58] In acquitting a defendant who struck and killed jaywalking pedestrian, the Court held in Globocki the driver is entitled to make a reasonable assumption about the behaviour expected of other users of the road, and it is not unreasonable to assume a pedestrian crossing a roadway at a time when vehicles are approaching, will not simply walk in front of oncoming vehicles.

[59] In R v. Wilson [1970] O.J. No. 1658 (Ont.C.A.), Ontario Court of Appeal, the Court held that a simple error in judgement is insufficient to justify a conviction of Careless Driving.

[60] The Crown noted the case of R v. Malleck-Lacroix [1991] O.J. No. 1784 in support of his position that the defendant should be held to a higher standard because she is a professional driver responsible for passengers. However, in Beauchamp, the Ontario Court of Appeal held that expert drivers are not held to a higher standard than any other driver on the road.

[61] While it is true that public transit bus drivers may require different training in the operation of a bus, much as someone obtaining a driver's licence to operate a motorcycle would need to achieve a specific set of skills to obtain that licence, once that category of licence is achieved the standard is the same for all drivers regardless of the motor vehicle they are operating on the road.

[62] The Crown also noted the offence of Yielding to Pedestrians, contrary to section 144(7) of the Highway Traffic Act which states, "When under this section a driver is permitted to proceed, he or she shall yield the right of way to pedestrians lawfully in the crosswalk".

[63] Ms. Angelidis was not charged with Failing to Yield to a Pedestrian. Furthermore, there was no evidence adduced by the Crown on this. Consequently the Court finds no relevance to the case at bar in referencing section 144(7) of the Highway Traffic Act.

[64] The reason given by Ms. Angelidis, for the second stop was her concern for the safety of Mr. Telesca who was "jaywalking" behind her bus. The Court finds that despite cross-examination, Ms. Angelidis remained consistent in her answers.

[65] The Crown vehemently rejected Ms. Angelidis' explanation of not being able to see the colour of the traffic light after her second stop because of the configuration of the bus and submitted that the fact that Ms. Angelidis proceeded without knowledge of the colour of the lights constitutes a serious case of Careless Driving. However, the Court accepts Ms. Angelidis' account regarding her inability to see the colour of the traffic light after her second stop because of the configuration of her bus as credible and trustworthy.

[66] The front facing camera video evidence confirms Mr. Telesca is not visible for a period of 5 seconds, between 3:56:13 and 3:56:18, and that Ms. Angelidis stopped her bus for a second time between 3:56:16 and 3:56:17 seconds, and the front doors of the bus can be seen to start opening at this time. When Mr. Telesca reappears at the 3:56:18 mark the front doors of the bus are already completely open at this time. The video evidence further shows Mr. Telesca boarding the bus at 3:56:23 and following a brief verbal exchange the bus recommences its motion at 3:56:25.

[67] At the 25-second mark, Ms. Angelidis can be seen to be scanning her mirrors left to right as she negotiates a lane change from the eastbound dedicated right turn/bus lane into the eastbound curb lane, navigating her way through the intersection. The civilian witnesses corroborate that while this is done the bus is travelling at a slow rate of speed.

[68] On page 28 of the Collision Reconstruction Report, Detective Woronchak notes that Ms. Angelidis' "attention was diverted from her direction of travel through a combination of tasks (such as handing out transfers, checking mirrors and a conversation with a bus passenger)".

[69] Upon cross-examination, Detective Woronchak clarified that what she meant in her report when describing Ms. Angelidis as being distracted she was referring to the handing out of transfers. She agreed with the defence both that the bus was not in motion during the verbal exchange between Ms. Angelidis and Mr. Telesca, and that Ms. Angelidis was not distracted in a blameworthy sense as handing out transfers is part of her duties as a bus driver.

[70] The Court finds that weather, lighting conditions, excessive speed, mechanical problems with the bus, and driver fatigue were not contributing factors in this collision.

[71] Ms. Angelidis began to take evasive action at the 29-second mark immediately upon noticing Ms. Martella stepping onto the roadway. The existence of a skid mark further supports her attempt to avoid the collision.

[72] Ms. Angelidis made an error in judgement when she allowed Mr. Telesca to board her bus after the second stop instead of proceeding through the intersection once he had reappeared on the south sidewalk and could be deemed to be safe. This decision resulted in tragic consequences.

[73] Ms. Martella's family is undoubtedly still grieving the loss of a loved one. Ms. Angelidis will have to live with the knowledge that her actions resulted in the loss of a life.

[74] Given the first stage of the W.(D.) analysis, the Court has found Ms. Angelidis' version of events credible and as such the Court is left with reasonable doubt. And, further, on the basis of all the evidence, the Court finds that the defendant's driving did not constitute Careless Driving. For these reasons, the Court finds Ms. Angelidis not guilty of the charge of Careless Driving.

Released: February 13, 2015

Signed: Justice of the Peace L. Cruz