Court File and Parties

Ontario Court of Justice

Date: 2015-12-10

Court File No.: 3160 999 4148356B

Between:

Her Majesty the Queen

— and —

Michelle Ramkissoon

Before: Justice of the Peace M. Duggal

Heard on: September 29 and October 30, 2015

Reasons for Judgment released on: December 10, 2015

Counsel

Mr. Widekowsky — Prosecutor

Mr. C. Hodgson — Paralegal for the defendant, Mrs. Ramkissoon

JUSTICE OF THE PEACE DUGGAL

Charge and Background

[1] Michelle Ramkissoon is charged that on April 10, 2015 at Main Street and Queen Street, City of Brampton, with failing to stop for a red light contrary to Section 144(18) of the Highway Traffic Act. The matter is an absolute liability offence; see R. v. Kurtzman, 31 M.V.R. (2d) 1, 66 C.C.C. (3d) 161.

[2] Mrs. Ramkissoon was arraigned and pled not guilty on September 29, 2015 at the Provincial Offences Court at 5 Ray Lawson, Brampton. The trial took place over the course of two days on September 29, and October 30, 2015. Five witnesses testified in the trial; the three witnesses who testified for the Prosecution were Erynne Bertrand, Robert Hillier and Officer Connor Tokin. Mrs. Ramkissoon and Mr. Latchman Hiralall testified for the defence. The case was adjourned to December 10, 2015 for reasons and judgment.

Issues Before the Court

There are a number of issues beyond dispute. The issues beyond dispute relate to jurisdiction, date and identity of the accused. The only issue in dispute is whether Mrs. Ramkissoon went through a red light at Main and Queen Street. Since Mrs. Ramkissoon testified, I must apply the W.D. analysis to the totality of the evidence. Cory J., writing for the majority in R. v. W(D), [1991] 1 SCR 742, held as follows:

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

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

Thirdly, 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.

[3] In assessing the evidence, I am not allowed to prefer one person's evidence over another person. In addition, I will not assess the Prosecution evidence first should there be a danger of accepting the Prosecution evidence before considering the defence case. In applying W.D., I would not characterize this case as a he said-she said type of case but rather a he said-she said type of case with testimony from an independent witness, Mr. Hillier and post-accident observations of the traffic lights functionality by Officer Tokin. In other words, I must look at Mrs. Ramkissoon's evidence in the totality of the evidence presented.

Evidence for the Prosecution

[4] Three witnesses testified for the Prosecution: Erynne Bertrand, Robert Hillier and Officer Connor Tokin.

Evidence of Erynne Bertrand

[5] On April 10, 2015, Ms. Erynne Bertrand was travelling by car southbound on Highway 10 from Orangeville towards Brampton; Highway 10 consists of two lane lanes southbound and Ms. Bertrand was travelling in the left lane. Highway 10, aka Queen Street, and Main Street is controlled by stoplights. The light was green as she was approaching the intersection of 10 and Main and had been green for about 100 meters but she was not exactly sure.

[6] Ms. Bertrand was proceeding on a green light and was travelling 70 kilometres an hour. It was 6:45 am; traffic was heavy. It had rained the night before the roads were a little wet and the light was dim – she had her headlights on.

[7] As she was travelling south on Queen Street and going through the green light, a grey car came out of nowhere from her right side on Queen street and hit the front driver's side of her car. The unknown car came from the right passenger side and Ms. Bertrand's side, the left side, the driver's front side.

[8] When asked how the car not did hit the passenger's side of the car first, Ms. Bertrand could not recall. Ms. Bertrand testified that, "I was just going through and that's how we collided". She tried to brake and thought the car veered more or less to the left but she could not specifically recall. The collision took place in the middle of the intersection. After the collision, Ms. Bertrand was in shock because she had obviously been hit – she stopped and just looked around in the intersection for a couple of seconds, didn't see the other car and proceeded to the first available road she felt safe. At the safe road, Ms. Bertrand assessed the damage. She brought her car to a stop on right side of Frederick Street, a distance of .6 miles from the scene of the collision and called the police. The police eventually came.

[9] On Frederick Street, Ms. Bertrand got out and looked at her car. Ms. Bertrand was in a state of shock; she didn't think that as she was going through a green she would be hit by a car.

[10] Ms. Bertrand suffered soft tissue injuries in the upper chest and back. From her vantage point on Frederick Street, she was not able to see the intersection where the collision took place.

Cross Examination of Erynne Bertrand

[11] The car that struck Ms. Bertrand appeared to come from nowhere because Ms. Bertrand was going through a green and was in shock. Her testimony was that, "I'm going through an intersection and I see a car coming out of nowhere; the vehicle that struck her was travelling from the west going in an eastbound direction".

[12] Ms. Bertrand could not recall what portion of the other driver's vehicle was struck nor could she recall whether the bumper came off a car. After getting out of the car, she saw the radiator and noticed the front part of the car was gone. Ms. Bertrand did not see if any pieces were missing.

[13] Ms. Bertrand restated the car was coming from the west going eastbound but could not identify which eastbound lane. Ms. Bertrand was certain her light was green. When asked whether she was aware of the law of remaining at the scene of an accident, Ms. Bertrand knew of the law did not think it applied to her since she called the police.

[14] Ms. Bertrand did not return to the scene of the accident because she was in shock at the scene of the accident and did not want to be rear ended. That is why she continued to the first available street where she felt safe. Ms. Bertrand was not able to identify Mrs. Ramkisson but identified a grey car. At the time of the collision, Ms. Bertrand checked her rear-view mirror for a couple of seconds, looking up and around and went through the intersection to a safe spot.

[15] A police officer named Rizzi spoke to her and the officer who spoke to her was not in court. Ms. Bertrand was not able to identify what part of the other vehicle struck her car because it happened so quickly; Ms. Bertrand drove down Highway 10 every day and was going through an intersection on a green light and a car came out of nowhere and struck her. The collision happened so quickly. Before the accident she did not see the other car because Ms. Bertrand's light was green.

Re-Examination of Erynne Bertrand

[16] Large portions of Ms. Bertrand's evidence on re-examination were the product of leading questions. I place little weight on her evidence in re-examination. On re-examination, Ms. Bertrand was travelling through the intersection at Main Street; a car travelling from the west to the east struck her. It is not possible that the car that struck Ms. Bertrand came from either the north or the west. The car that hit her did not come from the north.

[17] Another example of a leading question was the diagram which was entered as Exhibit 1. The Prosecutor drew the diagram, not the witness and proceeded to ask the witness to identify the portion of the vehicle where the car was damaged. The diagram was not the witness' diagram. I place little weight on this part of the evidence as it was leading in nature. No objection was taken to the Prosecutor tendering this evidence.

Evidence of Rob Hillier

[18] On April 10, 2015, around 7 am, Rob Hillier was a witness to a motor vehicle collision. Mr. Hillier was a pedestrian on the northwest corner of Queen and Hurontario in the city of Brampton. The intersection is controlled by a stoplight. Mr. Hillier was walking southbound and the color of the light for pedestrian traffic was a green walking symbol; the traffic light for southbound traffic was also green. Traffic was busy.

[19] Mr. Hillier was about to step off the curb when he heard a car hit the gas to go through the light; he was drawn to eastbound traffic. Mr. Hillier heard the sound of a revving of an engine. He looked straight ahead in relation to the noise of the revving vehicle. The vehicle was travelling eastbound in the left lane; there are two lanes for eastbound traffic. The eastbound vehicle first stopped at the light and then it accelerated through the red light. The light for southbound traffic was still green.

[20] Mr. Hillier testified that a red Cobalt travelling southbound hit a grey vehicle travelling from the west; the left quarter of the red Cobalt struck the eastbound car. The grey eastbound car was struck on the left rear driver's side. After both cars collided, the grey car spun and travelled east to the other side of the intersection while the Red Cobalt kept driving. Part of the Red Cobalt's bumper remained in the intersection. After the grey car stopped on the east side of the intersection, Mr. Hillier called 911. He neither approached the grey car nor did he ever see the driver of the grey car.

Cross Examination of Rob Hillier

[21] Mr. Hillier saw a Grey Camry travelling eastbound; the southbound car was red Cobalt. Mr. Hillier did not know who was driving the eastbound car. The eastbound car had damage to the rear driver's side. Mr. Hillier was on the extreme corner of Highway 10 and Queen and was waiting to cross the street; he observed quite a few cars go southbound as it appeared busy. The accident was around 6:45 a.m.

[22] After calling 911, Mr. Hillier never spoke to anyone other than the police officer as he saw no point in speaking to anyone else.

Evidence of Officer Connor Tokin

[23] Officer Connor Tokin was working in uniform patrol on April 10, 2015 from 7 am to 5 pm. The officer was dispatched to a motor vehicle accident at the intersection of Main Street and Brampton. When he arrived on the scene, the fire department was already assessing for injuries. There was one motor vehicle – a Grey Toyota 2014, but he did not make a note of the make of the car. The grey Toyota was east of the intersection off to the side of Queen Street on the south side. The officer spoke to the driver of the Grey Toyota who identified herself with a valid driver's licence; at trial, the officer identified the defendant in the body of the court.

[24] The officer had a conversation Ms. Ramkisson and then shortly afterwards spoke with Mr. Rob Hillier. The officer did not speak with anyone else at the scene. He was at the intersection about 15 minutes. The officer observed damage to the Grey Toyota on the quarter front panel area of the driver's side. There was also accident debris consisting of a piece from the red vehicle laying in the intersection.

[25] Based on his radio calls that came at the same time, another police car was dispatched to Frederick and Main Street. All of this hearsay was introduced to provide the officer's grounds in relation to the accident he was investigating.

[26] The intersection at Main Street and Queen is controlled by a set of traffic lights. During the 15 minute period that he was dealing with the accident, the officer observed the lights periodically and the lights were functioning properly. Officer Tokin did not observe any malfunctions. If he had observed the lights operating improperly, he would have had to notify GUILD and he would have directed traffic himself to prevent any accident or disruption of traffic. Officer Tokin did not have to do that.

[27] The officer could not recall if the intersection on Main and Queen was part of his general patrol but it is part of his jurisdiction at 22 Division. There are yellow divider lines between the north and south lanes on Main; Main Street has four lanes in total with 2 lanes northbound and 2 southbound. The north and southbound lanes are cars parked on the curbed lanes of for parked cars. The same yellow markings regulate east/west traffic on Queen Street. There are no left hand turns on east or westbound Queen at all times of the day.

[28] As a result of the conversation with Mr. Hillier and the driver of the Toyota, the officer issued a Provincial Offences Notice to Ms. Ramkisson for red light, fail to stop.

Cross Examination of Officer Tokin

[29] Officer Tokin acknowledged that his notes set out a different chronology in terms of his investigation. The notes indicate he spoke to Mr. Hillier before speaking to Ms. Ramkissoon when in fact the converse occurred.

[30] The officer checked the lights cycle about five times. The lights for east and westbound traffic on Queen were concurrently green; while the east/west lights were green, the north and southbound lights governing Hurontario were red. Officer Tokin made these observations of all the lights while he was standing on the southeast corner of the intersection.

[31] Officer Tokin noted the damage to the defendant's car was on rear driver's side back area, the area behind the rear passenger door area. When the officer arrived at the intersection, he observed a good portion of the front bumper of the other car; the red piece of the other car was by the defendant's car. The officer did not observe the collision; he took some investigative steps to establish that the red debris was connected to the motor vehicle on Frederick Street.

[32] The Prosecutor closed its case and the trial resumed on October 30, 2015.

Evidence of Michelle Ramkissoon

[33] Ms. Ramkisson testified she was in an accident at Hwy 10 and Queen. The defendant lives 10 minutes away from Highway 10; on April 10, the road conditions were a little damp. The defendant made a right onto Queen from Credit View, and was travelling eastbound on Queen. Prior to arriving at the intersection, she travelled through major intersections observing all traffic lights – she had no problem bring her car to stop at intersection. The speed limit on Queen was 50 kilometres and she was travelling 50 kilometres an hour.

[34] When Ms. Ramkissoon approached the intersection, the light was red; the defendant stopped at the intersection and observed a pedestrian crossing the street. At that point, the movement of traffic was traffic was going north and south. The defendant was in the passing lane.

[35] The red light turned green and the defendant proceeded through the green light. From her left side, the defendant saw a red car; the defendant got hit and believes the other car kept going south bound on Main.

[36] Ms. Ramkissoon was scared and felt panicked; her car ended up in the eastbound lane facing west. She called the police. The time of the accident was 6:50 and she called the police at 6:53 am. After calling the police, she called her husband. A tow truck showed up.

[37] The only interaction with the police was furnishing a driver's licence through the fire department; there was damage to the rear passenger side of the car.

[38] My car was hit on driver's side, bumper fell off. Light was green; stopped, pedestrian was south going.

[39] The defendant stopped at the light on Queen for Street for 2-3 minutes; the light was first yellow and then turned red.

[40] Mrs. Ramkissoon's car is a dark grey, like charcoal not silver in color. In reply to Mr. Hiller's evidence of a car revving up, the car beside the defendant was a pick-up truck and made the roaring noise. The defendant's car is a 4 cylinder.

[41] The defendant described Mr. Hillier's evidence as not accurate and confirmed that I had had a clear intersection facing eastbound; Ms. Ramkissoon noted the other car did not remain at the scene of the accident.

Cross Examination of Ms. Ramkissoon

[42] On cross, Ms. Ramkissoon testified the light was red for northbound traffic; a pedestrian was walking south and she did not know who the pedestrian was. There were a bunch of pedestrians cross the street. The light turned green – a pedestrian was going south.

[43] There were nine to ten cross lights she observed before entering the intersection at Queen and Main; she has lived in Brampton since 2003, was licenced in 2000 and always driven a car.

[44] The defendant described the route to Queen and Main and at the intersection the light was red for northbound traffic.

[45] Her driving experience is lights have never all been green simultaneously north, south, east and west; if the lights are not working she treats the lights as a stop.

[46] The defendant did not remember seeing Mr. Hillier and does not know him. She was asked whether he would have any reason to lie. No objection was made to this line of questioning. The defendant had no reason to doubt Hillier's evidence.

[47] Ms. Ramkisson testified it was possible that the pick-up truck revved its engine; If one assumes the light was green, then cars going north and south would have collided with her.

[48] Ms. Ramkissoon testified her light was green and she was focusing on eastbound traffic. She also testified that Mr. Hillier testified that her car had first stopped.

[49] When asked about the probabilities of both lights being green, Ms. Ramkisson testified somebody is wrong. She concluded her cross examination by testifying that Mr. Hillier was lying as she had seen the transcript.

Evidence of Latchman Harilall

[50] Mr. Harilall is Mrs. Ramkissoon's husband. He responded to a telephone call from his wife on April 10, 2015 around 6:55 am and travelled to the scene of the accident.

[51] He got out and went to accident scene; Mrs. Ramkissoon got out of the car, based on information from firemen. The weather not that great; he waited for the police; Mr. Harilall arrived at 7:10-7:15 and there was no one there at time.

[52] Police arrived at 7:30 am; his wife's car was in west lane near a TD bank east of Highway 10; there was damage to the back rear side of the car. The car was 20 feet from the intersection of 10 and Main; Mr. Harilall approached an officer.

[53] When he got to the scene, his wife was sitting in the car; Mr. Harilall helped his wife get out of the car; he stood next to a TD bank. No one in authority approached his wife.

[54] During the whole investigation no one approached Mr. Harilall; the car was not driveable. The car was towed; from a distance, he could see a car wheel was collapsed, driver's side rear wheel was collapsed.

[55] When officer approached him, the police never discussed the accident nor did a police officer take a statement.

Cross Examination of Mr. Harilall

[56] Based on the damage he observed, his wife's car was struck on the driver's back side. Mr. Harilall knew Mrs. Ramkissoon wife was travelling eastbound going to work; the damage was consistent with car going southbound and striking the Toyota.

[57] In 18 years of driving through Brampton, Mr. Harilall has never seen green lights all being on at the same time.

Assessment of Defence Case

[59] Based on the issues beyond dispute, I accept Mrs. Ramkissoon's evidence that she was driving her car on April 10, 2015 in Brampton at Main and Queen Street. I also accept her evidence that she stopped at the intersection of Main and Queen Street. However, I do not accept her evidence that she had a green light allowing her to proceed through Main Street nor does her evidence on this point raise a reasonable doubt in my mind because of the evidence of the independent witness Mr. Hillier and the post-accident observations of the traffic lights by Officer Tokin.

[60] I do not accept any of Ms. Ramkissoon's evidence about whether Mr. Hillier is lying. Such questions are not proper and should have not been put to her as they call for speculation and shift the onus on her to explain another witness' evidence. In addition, such evidence is simply irrelevant.

[61] The other portion of the defence evidence relates to Mr. Harilal's observations. His observations were post accident and I accept his evidence that the damage was on the driver's back side of the car.

[62] I also place little weight on Ms. Ramkisson's evidence with respect to all the lights not being green in various directions based on her past driving experience. Simply put, if it happened, it happened [lights green for both southbound and eastbound traffic] and if there had been a reasonable doubt in my mind, she would have been acquitted. There is not a reasonable doubt in my mind on that point.

Assessment of Prosecution Evidence

[63] I accept Mrs. Bertrand's evidence that she was driving southbound and had a green light from 100 meters away; that it was around 6:45 and that a grey car struck her from Ms. Bertrand's right side while she was going through a green light.

[64] Ms. Bertrand's evidence on where her car was damaged was a little confusing; when asked how the car did not hit the passenger's side of the car, she could not recall and testified "I was just going through and that's how we collided". I also accept Mrs. Bertrand's evidence that her light was green for about 100 meters, or for some distance before she approached the intersection at Main and Queen. I accept her evidence that she drives the route every day and a car came out of nowhere while she had a green light and struck her on the right.

[65] I do not place a lot of weight on her evidence about how her car was damaged at the time of the accident. This is because the accident and shock affected her recollection. Ms. Bertrand was led on large portions of her testimony on how the damaged occurred including a diagram being drawn by the Prosecutor, not Ms. Bertrand in re-examination. I do not place a lot of weight on her evidence in relation to damage to her car. Simply put, she was driving south on Highway 10, had a green light for a significant distance and was struck suddenly and out of the blue by a car on the right hand driver's side of her car.

[66] I accept Mr. Hillier's testimony as he is an independent pedestrian who was walking southbound in the same direction as Mrs. Bertrand. He had a green walking symbol allowing him to walk south.

[67] I accept he was about to step off the curb on the extreme northwest corner of Highway 10 and Queen. I accept his evidence that he looked straight ahead to the noise from the collision and observed Ms. Ramkissoon's car (Grey Camry) strike Ms. Bertrand's car. I accept that the eastbound vehicle was first stopped and then accelerated while southbound traffic had a green light.

[68] I also accept Mr. Hillier's testimony that the southbound car was red Cobalt. The color and make [Cobalt] of the car were not facts Ms. Bertrand was questioned about. Mr. Hillier also testified that part of the red Cobalt's bumper fell off and remained in the intersection as a result of the collision.

[69] I also accept Mr. Hillier's testimony that the Grey Camry was stopped at the light and then accelerated through a red light. On submissions, Mr. Hodgson the Paralegal submitted there was no evidence that Mrs. Ramkisson went through a red light.

[70] When Mr. Hillier's evidence (as transcribed) was pointed out, Mr. Hodgson submitted Mr. Hillier testified that the defendant went through a green light. That was not Mr. Hillier's evidence. I quote the following questions and answers from the transcript (p.29, l.15):

Q. And what approximate speed do you think this eastbound vehicle was doing?

A. It was stopped at the light at first.

Q. It was stopped?

A. Yes

Q. So you saw this vehicle stopped?

A. Yes, it was stopped at the red light and then it accelerated through the green – through the red light.

Q. Through the red light?

A. Yeah.

[71] I accept Mr. Hillier's testimony that the light was red. He was not cross examined on the light being green. Mr. Hillier was asked and answered that the light was red.

[72] I accept Officer Tokin's evidence of the damage to the grey Camry, namely that there was damage to the driver's side rear portion.

[73] I accept as fact Officer Tokin's evidence that he also observed accident debris consisting of a piece of the red car laying in the intersection.

[74] I accept Officer Tokin's evidence that during a 15 minute period he observed lights governing both Main and Queen Street while standing on the southeast corner of the intersection and checked the lights cycle about five times. The officer testified that he had squiggly symbol representing an estimate of watching 5 cycles and I accept his testimony on this point. He testified that his symbol was an estimate of 5 cycles; he neither embellished his evidence nor was there an omission in his notes on this point.

[75] Mr. Hodgson, the paralegal submits that the officer never noted the exact times the lights cycled. There is no requirement that the officer do that. The paralegal provided two cases to support that proposition: R. v. Newton [1996] O.J. No. 5360 where Justice Flaherty at paragraph 2 noted there was no direct evidence as to what colour the light facing the defendant was at the time he entered the intersection. I also note at paragraph 11, Justice Flaherty noted that, "If there is some evidence that the lights were functioning normally… then one can assume that that was what was going on at the time".

[76] In this case, I heard from Mr. Hillier that the light was red for eastbound traffic and green for southbound traffic. That evidence was corroborated by the post-accident observations by Officer Tokin.

[77] In R. v. McCoy [2004] O.J. No. 6244 Justice Forsyth held that the failure of the officer to note going back to check the lights on this occasion was important. Justice Forsyth noted, "Evidence is more reliable and confirmatory when an officer keeps notes of important aspects of things they do during the course of an investigation". Officer Tokin made notes of his post-accident observations regarding the cycling of the lights and his evidence as noted above was corroborated to some extent by Mr. Hillier's observations.

[78] In conclusion, the Prosecution's evidence does not raise a reasonable doubt in my mind and the Prosecution has proven its case beyond a reasonable doubt. As such, there will be a conviction.

Released: December 10, 2015

Signed: "Justice of the Peace Duggal"