Court File and Parties

Court of Justice of Ontario Toronto Region

Indexed as: R. v. Kabongo-Ngomba

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

Between Her Majesty the Queen, Prosecutor, and Nicole Kabongo-Ngomba, Defendant

Decision

Before: Justice of the Peace Mohammed Brihmi

Appearances:

• Ms. I. Mamane, Prosecutor for the City of Toronto
• Ms. Nicole Kabongo-Ngomba, Defendant acting on her own behalf

Heard: February 6 and May 1, 2015

Decision Rendered: May 1, 2015

Introduction

[1] The case of Nicole Kabongo-Ngomba arises from a motor vehicle accident between the vehicle she was driving and that of Nicolina Cappellano. This collision occurred on May 7, 2013, at approximately 8:40 a.m. in the westbound direction of Finch Avenue West and Jane Street in the City of Toronto. Accordingly, Nicole Kabongo-Ngomba is before the court charged with careless driving contrary to section 130 of the Ontario Highway Traffic Act.

The wording of section 130 of the Highway Traffic Act reads as follows:

[2] Every person who drives a vehicle or streetcar on a public highway without due care and attention or without reasonable consideration for other persons using the public highway is guilty of careless driving and is liable, on conviction, to a fine of not less than $400 and not more than $2,000 and to imprisonment for a maximum of six months, or to only one of these penalties. In addition, his or her driver's license or vehicle registration certificate may be suspended for a maximum period of two years. 2009, c. 5, s. 41

Nature of Offence and Burden of Proof

[3] The court is satisfied that this offence, like the majority of regulatory offences, is not an absolute liability offence and will not be treated as a mens rea offence. From the language of the offence, the court will treat it as a strict liability offence.

[4] Therefore, this offence places the burden of proof on the prosecution, which must prove beyond a reasonable doubt that the defendant committed the act of which she is accused. However, it allows the defendant to present a defence by demonstrating on a balance of probabilities that she took all precautions to avoid the act in question or that she believed on reasonable grounds in a state of facts that did not exist, which, had it existed, would have rendered the act innocent.

Prosecution's Evidence

[5] The court heard evidence from two prosecution witnesses. These are Ms. Nicolina Cappellano, owner of the Nissan vehicle, and Police Officer Tracey Windle.

[6] First, the court heard the testimony of Ms. Cappellano, which I can summarize as follows:

[7] Ms. Cappellano testified that she was driving her vehicle on Finch Avenue West in the centre lane. She then stopped at a red light, on the white line, for a few seconds and was the first vehicle with no other vehicle ahead of her.

[8] Furthermore, she told the court that the defendant was in the same lane as her and that there was another driver turning right onto Jane Street. She also testified that she saw in her rear-view mirror that the defendant was talking on the telephone and that her vehicle was very close to hers such that she could not avoid the accident.

[9] Regarding damage to her vehicle, Ms. Cappellano testified that this cost her more than $1,500.00 in repairs and that the defendant hit her vehicle hard. Furthermore, she indicated that the damage was to the rear bumper and the lower part of the trunk of her vehicle.

[10] During cross-examination by Ms. Kabongo-Ngomba, Ms. Cappellano reiterated that the defendant was on the telephone and that she saw her in the rear-view mirror as she approached and that she did not have time to stop. As to the question of the distance between the two vehicles involved in the accident, Ms. Cappellano replied that it was not a great distance.

[11] The court also heard the testimony of Police Officer Tracey Windle, badge number 9254. She was assigned to this collision at 9:01 a.m. Her testimony can be summarized as follows:

[12] Constable Windle testified that she arrived at the accident scene at 9:14 a.m. and investigated its circumstances. Furthermore, she indicated that it was clear and dry in terms of weather and that the westbound direction of Finch Avenue consists of five lanes, three of which are in the westbound direction, and Jane Street consists of two lanes in the northbound direction and two others in the southbound direction.

[13] Also, the police officer told the court that in speaking with Ms. Cappellano, the latter was anxious and distressed; however, she was not injured. She added that due to her age, health, observations, and this accident, she was not in a state to drive her vehicle and she called her son to do so.

[14] Regarding the identification of Ms. Cappellano, the Constable testified that she presented her a valid driver's license and that she was the driver of the Nissan with license plate ACXH 853.

[15] With respect to the driver of the black 2000 Mazda, she identified herself to the police officer through a valid driver's license bearing the name Nicole Kabongo-Ngomba and the license plate of her vehicle was BPXR 469.

[16] The Constable testified that the damage to the Mazda included the entire front of the vehicle with the front bumper and the left front headlight and that it was towed; however, the airbags did not deploy and there were no injuries to the driver and her passenger.

[17] The Constable also testified that the vehicles involved in the collision were moved and that she determined that the point of impact was in the centre lane of the westbound direction of Finch Avenue east of the intersection. Regarding speed, the police officer testified that it is 60 km/h on Finch Avenue as well as on Jane Street.

[18] Also, the Constable indicated that she had monitored the sequence of traffic light signalization for pedestrians on Finch Avenue in both directions and that it was functioning properly. Thus, the light begins to flash for 21 seconds when the light is green and then a solid hand appears when the light turns yellow for a duration of four seconds before the light turns red. Regarding the damage to the defendant's vehicle, she testified that based on her experience investigating motor vehicle accidents, it is consistent with hard braking that caused the defendant's vehicle to strike the lower part of the trunk of Ms. Cappellano's vehicle.

[19] Finally, the police officer testified that based on the information received from the two drivers and the passenger of the Mazda, as well as the traffic light sequence at this intersection, including the fact that Ms. Cappellano indicated that she stopped when the light was red and that the yellow light does not mean you should accelerate, but rather prepare to stop, she charged the defendant with the offence before the court.

[20] During cross-examination by the defendant, the Constable clarified why she charged her with this careless driving offence. She testified that she based it, among other things, on the information she received from the two drivers regarding speed, the movement of the vehicles, and the sequence of the 21-second countdown before the light changes to yellow and then to red. Also, the Constable clarified the question of speed before the collision that she received by speaking to the two drivers. According to her, the defendant told her she was driving at a speed of 60 km/h and Ms. Cappellano indicated that her speed was zero km/h.

Defence Evidence

[21] On the defence side, the court heard testimony from Ms. Nicole Kabongo-Ngomba and Ms. Esther Kabongo. These are the driver of the Mazda and her aunt who was the passenger. I summarize the evidence of Ms. Kabongo-Ngomba as follows:

[22] She testified that she was driving westbound on Finch Avenue, that the Nissan vehicle was in the same lane as hers throughout the road, and that there was not much traffic. Furthermore, she told the court that there were 5 seconds remaining for pedestrians to walk and that the traffic light was still green.

[23] Also, Ms. Kabongo-Ngomba testified that Ms. Cappellano was hesitating and she wondered what this lady was doing. Thus, Ms. Cappellano stopped and then moved forward again and the light was yellow. Furthermore, she testified that she was ready to stop before reaching the light and suddenly Ms. Cappellano stopped after the pedestrian line and that is how the accident occurred. Also, Ms. Kabongo-Ngomba indicated to the court that Ms. Cappellano drove her vehicle to the gas station and called the police.

[24] During cross-examination, Ms. Kabongo-Ngomba clarified that she was one and a half car lengths away from Ms. Cappellano's vehicle and that the Nissan was ahead of her for a few minutes. Also, she indicated that Ms. Cappellano braked before the white line when five seconds remained for pedestrians.

[25] Then, Ms. Kabongo-Ngomba explained that as she approached the Nissan, she slowed down by reducing her speed from 60 to 20 km/h and then she hit Ms. Cappellano's vehicle when the light was yellow and she had passed the pedestrian line; however, she confirmed that Ms. Cappellano's vehicle was pushed by hers into the middle of the intersection.

[26] While initially denying that she touched Ms. Cappellano's vehicle at the bottom, when shown the photo that Ms. Kabongo-Ngomba had taken of the rear of the Nissan, she confirmed, when the Prosecutor showed her the photo with the damage to Ms. Cappellano's vehicle, that they were all along the rear of the vehicle.

[27] The court also heard evidence from Ms. Esther Kabongo, which I summarize as follows:

[28] She testified that her niece was driving and that as they approached the intersection of Finch Avenue and Jane Street, they saw that Ms. Cappellano was hesitating in her driving. Furthermore, she told the court that Ms. Cappellano braked when the light was green because the counter had gone down and then she moved forward when the light was yellow before braking again and we hit her from behind.

[29] During cross-examination by the prosecutor, Ms. Kabongo confirmed that the distance between their vehicle and the Nissan was one and a half car lengths, that it was ahead of them, and that she did not remember the speed of their vehicle. She also confirmed that the Nissan braked the first time when the light change counter went down without remembering exactly where Ms. Cappellano's vehicle stopped and at what distance from the intersection.

[30] To the prosecutor's question about the colour of the light when they had the accident, Ms. Kabongo replied that the light was already red and that her niece did not hit the Nissan very hard because the speed of their vehicle was lower than before; however, she confirmed that their vehicle pushed the Nissan a little.

Analysis of Evidence

[31] In her submission, the Prosecutor argued that Ms. Cappellano presented clear, precise, and honest evidence and never changed her version of her story. Furthermore, she added that Ms. Cappellano observed the defendant talking on a cellular telephone and that she was so close to her vehicle. Also, she added that Ms. Cappellano was afraid that the defendant's vehicle would not stop and she cried out "OH MY GOD" and the accident occurred.

[32] Furthermore, the prosecutor argued that Ms. Esther Kabongo, the defendant's aunt, testified in a very honest manner that the accident occurred when the traffic light was already red; however, the prosecutor argues that the defendant indicated that the light was yellow and that she had noticed the Nissan ahead of her for a few minutes and therefore she could have changed lanes or braked. If she could not brake, then she was driving very close to the Nissan.

[33] According to the prosecution, the facts that are not in dispute and what happened when the defendant was driving are very important for this offence because Ms. Kabongo-Ngomba was following the Nissan very closely and the Highway Traffic Act indicates that you must leave at least a distance of two car lengths. Furthermore, according to Ms. Cappellano, the defendant was driving while talking on the telephone and therefore, without paying enough attention to the yellow and red traffic lights.

[34] Also, the prosecutor submitted that the aunt and Ms. Cappellano testified with certainty that the light was already red when the accident occurred and that with all the facts combined, the defendant was not driving with the necessary prudence and attention.

[35] In her submission, Ms. Kabongo-Ngomba argues that she was driving with prudence and exercising the necessary attention. She argued to the court that she was not speeding and that she had left enough space between her vehicle and that of Ms. Cappellano.

[36] Furthermore, Ms. Kabongo-Ngomba argues that she was wearing her prescribed glasses according to her driver's license, that she had both hands on the steering wheel, and that she had slowed down and carefully observed Ms. Cappellano's vehicle ahead of her.

[37] Second, she argues that she took into account other road users and that she was aware of other vehicles beside her and those ahead of her. Furthermore, she indicated that she had both hands on the steering wheel and that she had done everything necessary to avoid the accident by removing her foot from the accelerator.

[38] Also, the defendant referred to the decision of the Ontario Court of Appeal in R. v. Beauchamp from 1952, which states that the standard of care is not one of perfection. The test to be applied is: what would a person of ordinary prudence in the defendant's situation have done in the face of the event giving rise to the offence with which she is charged.

[39] Furthermore, she referred to another decision in Regina v. Namink from 1979, which states, among other things, that the standard of care is not one of perfection. The test to be applied is: "What would a person of ordinary prudence in the defendant's situation have done before the event giving rise to the offence with which she is charged."

[40] The court has identified the following issues in dispute:

1. Was the traffic light in the westbound direction of Finch Avenue West yellow or red?

2. Did the prosecutor prove the offence of careless driving beyond a reasonable doubt?

3. Did the defendant exercise reasonable diligence?

[41] To clarify the issues in dispute and as Ms. Kabongo-Ngomba testified, among other things, that the traffic light was yellow when she hit Ms. Cappellano's vehicle and that she only used her cellular telephone to call the police after the accident and that she exercised the necessary prudence and attention and did not commit the offence of careless driving, an examination of the evidence before the court is necessary in order to determine whether or not she committed this offence of careless driving.

[42] In this situation where a reasonable doubt has been raised, it is incumbent upon the court to refer to the decision of the Supreme Court of Canada in Regina v. W. (D), [1994] 3 S.C.C. 521, [1994] S.C.C. No. 91 (QL), in which Justice Corey established the test of credibility as follows:

1. First, if you believe the testimony of the accused, obviously you must render an acquittal.

2. Second, if you do not believe the testimony of the accused, but if you have a reasonable doubt, you must render an acquittal.

3. Third, even if you have no doubt following the testimony of the accused, you must ask yourself whether, based on the evidence you accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused.

[43] In terms of credibility, the court finds that, on one hand, Ms. Nicolina Cappellano, Police Officer Tracey Windle, as well as Ms. Nicole Kabongo-Ngomba and Ms. Esther Kabongo did their best to tell the truth about what they saw and what happened.

[44] For the court, the two prosecution witnesses, Ms. Cappellano and Officer Windle, presented their evidence in a clear and precise manner. During cross-examination, Ms. Cappellano did not change her version of the facts and she clarified and repeated in an honest manner, among other things, that she stopped at the red light. Furthermore, the court notes that Constable Windle testified that Ms. Cappellano's speed was zero km/h at the time of the accident and that this evidence was confirmed by the testimony of Ms. Esther Kabongo, the defendant's aunt.

[45] I find that Constable Windle's testimony was clear and to the point. She specified, among other things, the damage suffered by the two vehicles, the question of the identity of the two drivers, the road conditions, the speed of the two vehicles, the sequence of traffic lights, and finally why she charged the defendant with the offence before the court.

[46] On the other hand, I find the testimony of Ms. Esther Kabongo to be clear and honest. She testified and clarified that the traffic light was already red when the accident occurred and that the vehicle driven by her niece pushed the Nissan a little upon impact.

[47] However, the court finds that the testimony of Ms. Nicole Kabongo-Ngomba is problematic and sometimes inconsistent, even contradictory. Furthermore, the court finds it very difficult to accept her evidence that the traffic light was yellow when the accident occurred. Therefore, the court accepts the evidence of Ms. Cappellano, which was corroborated by the testimony of Ms. Esther Kabongo, who both testified that the traffic light was already red when the accident occurred.

[48] I find that the photo that the defendant presented to the court confirms that the damage to the Nissan touched the lower part of the trunk, which explains that Ms. Kabongo-Ngomba executed hard braking, causing the front of her vehicle to move downward and touch the lower part of Ms. Cappellano's vehicle.

[49] In order to prove the actus reus of this offence of careless driving, the Crown must prove the following:

I. Careless Driving:

1. Did the defendant drive her black 2000 Mazda vehicle on (a public highway) the road?

2. a) without exercising the necessary prudence and attention, or

   b) without reasonably considering other persons using the public highway?

3. Having been proven through the details of her driving or through circumstantial evidence or direct evidence.

[50] The court is satisfied that Ms. Kabongo-Ngomba was the driver of the Mazda. This evidence is undisputed and was confirmed by all witnesses.

[51] Furthermore, the evidence presented by Ms. Cappellano and Constable Windle indicates that Ms. Kabongo-Ngomba drove her vehicle in a careless manner without exercising the necessary prudence and attention and without reasonably considering other persons using the public highway. For the court, a reasonable person would have acted, in the circumstances, differently from the defendant.

[52] A reasonable person should have left enough space between her vehicle and the one ahead of her, especially since the traffic light was red. Even in the case where the traffic light was yellow, a reasonable person should expect that the vehicle ahead of her could stop at any time to avoid being in the middle of the intersection when the light turns red.

[53] Also, the undisputed evidence before the court is such that the two vehicles were traveling in the centre lane. As Ms. Kabongo-Ngomba and her aunt testified that Ms. Cappellano stopped and then started again and then they said "My God," a reasonable person could have taken precautions, either by stopping or by changing lanes.

[54] The court notes that Ms. Cappellano testified that a vehicle was traveling to her right to turn north onto Jane Street; however, the court heard no evidence that the first fast lane on Finch Avenue West was occupied and that there was little traffic. Therefore, a reasonable person could have changed from the centre lane to the left lane to avoid hitting the Nissan.

[55] Furthermore, the court heard that Ms. Kabongo-Ngomba was on the telephone before the collision. A reasonable person should have avoided being distracted by using her telephone while driving.

[56] Also, the court accepts the evidence that Ms. Kabongo-Ngomba hit Ms. Cappellano's vehicle. However, being involved in a motor vehicle accident does not, in itself, mean that she is at fault. Furthermore, the actus reus of this matter is not the collision, but that Ms. Kabongo-Ngomba committed the offence of careless driving.

Decision

[57] Having listened to and carefully considered the facts presented, the court accepts that the prosecutor has demonstrated beyond a reasonable doubt that the defendant was following Ms. Cappellano's vehicle very closely, at one and a half car lengths, near the intersection to the point that Ms. Cappellano was afraid that the Mazda would not stop. Furthermore, the court accepts that the defendant did not pay attention to the traffic light, whether it was yellow or red. In this situation, the defendant should have stopped by ensuring she did not hit the vehicle ahead of her or by changing lanes.

[58] Having considered all the facts presented, the issues in dispute have been addressed by the prosecutor. Therefore, the prosecution has proved beyond a reasonable doubt the actus reus of the offence of careless driving.

[59] Ms. Kabongo-Ngomba, in view of all the circumstances, the court is satisfied that you have not been able to demonstrate, on a balance of probabilities, that you exercised reasonable diligence in your driving to avoid the accident with Ms. Cappellano. I find you guilty and I record a conviction against you.