Court Information

Ontario Court of Justice

Date: 2016-05-13

Court File No.: Central East - Newmarket 4911-999-13-0888-00

In the Matter of: An appeal under S. 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Parties

Between:

Her Majesty the Queen Respondent

— And —

Manal Shabo Appellant

Court Details

Before: Justice D.S. Rose

Heard on: April 13, 2016

Reasons for Judgment released on: May 13, 2016

Counsel:

• Ms. Daigle, student at law — counsel for the prosecution
• Mr. David Tompkins — counsel for the defendant Manal Shabo

On appeal from conviction by: Justice of the Peace P.N. Solomon on September 17, 2015

Judgment

ROSE J.:

[1] On March 1, 2013, the Appellant was operating her white Malibu motor vehicle eastbound on Highway 7. She made a left hand turn to go north on Edgeley Boulevard. At that point she had a green light. During the course of this left hand turn a grey Ford Escape, travelling west bound on Highway 7 operated by Ms. Chantal Costa, passed through that intersection and collided with the vehicle operated by Ms. Shabo. A black Nissan travelling in the same direction as Ms. Costa, driven by Reynaldo De Guzman, then collided with the Costa vehicle.

[2] Ms. Shabo was convicted by His Worship P.N. Solomon of Making a turn not in safety under s. 142(1) on September 17, 2015 after a trial lasting 12 days. Ms. Shabo's appeal is grounded in three principal arguments:

i. The trial court failed to properly consider the evidence of the Appellant, her experts and lay witnesses. Specifically she argues under this limb that the Appellant's evidence was supported by her expert, the lay witnesses to establish that Ms. Costa's vehicle was travelling at an unreasonable rate of speed.

ii. The trial court erred in law by conflating the stunt driving provisions of the Highway Traffic Act (HTA) with the term 'gross speed', as that term is used in R. v. Dillman, [2008] O.J. No. 1120. This, she argues, placed an unreasonable burden on users of the highway and was wrong in law.

iii. The trial court refused to fairly adjudicate on the matter because the evidence showed that the Appellant exhibited due diligence when executing her turn. The Appellant therefore, should have been found to not have reasonably expected the reckless actions of Ms. Costa.

Trial Evidence

[3] At trial the Crown called several witnesses. Ms. Costa testified that her car was travelling at between 50 – 60 kilometres per hour westbound on Highway 7 as she approached Edgeley Boulevard. As she passed through the intersection a vehicle suddenly turned in front of her. She had no time to react and struck that car. She was then hit from behind by another car. She had her lights on at the time, and she had no problem controlling her vehicle. She disagreed with some of the contents of a police accident report.

[4] Mr. De Guzman also testified that he was travelling westbound on Highway 7 approaching Edgeley Boulevard in the middle lane that morning. He estimated that his speed was 60 – 65 kilometres per hour. There was another car travelling faster than him in the left lane. That vehicle turned out to be Ms. Costa's. Mr. De Guzman also testified that it was still a little dark out and that he had his lights on. He said that Ms. Costa's car changed lanes into his lane, and two to three seconds after that it collided with the Shabo car. He didn't see brake lights on the Costa car before it crashed. He estimated the Costa car to be going 70 – 75 kilometres per hour.

[5] An independent witness, Andre Moebus, testified that the Shabo car was behind other vehicles that made the turn onto Edgeley on an advanced green. The Shabo car didn't have the benefit of the advanced green and stopped in the middle of the intersection for some 5 seconds. It then started to turn, and a second or two later collided with the Costa vehicle. He confirmed the road surface to be in good condition and the visibility to be good. The trial court was clearly impressed with Mr. Moebus and accepted his evidence.

[6] Cst. McIntyre investigated the collision and testified that, while the speed limit at that section of Highway 7 was 50 kilometres per hour, it was not blatantly unsafe to travel at 70 kilometres per hour.

[7] A police accident reconstructionist, D.C. Hebert, also investigated the accident. He opined that the black Nissan was travelling at about 68 kilometres per hour at the time of collision. He downloaded the onboard data from Ms. Shabo's Malibu. It showed that, after the brake was released, the car accelerated from 8 kilometres per hour through 30 kilometres per hour until it was stopped by impact after 5 seconds. At impact the car was travelling 30 kilometres per hour. D.C. Hebert could not opine the speed of the Ford Escape prior to the collision. D.C. Hebert was cross-examined on the basis for his findings and ultimately opined that the speed of the Escape was not a contributing factor in the accident.

[8] A defence expert, Mr. Porter, gave testimony that Ms. Shabo's visibility was limited, and that Ms. Costa's ford was travelling at 78 kilometres per hour. His opinion was that, "The speed of the Costa Ford immediately prior to the impact with the Shabo Chevrolet was likely about 78 km/h…".

[9] Ms. Shabo herself testified that she could not remember seeing any other on-coming cars, and did not see the grey Escape before it hit her. He said that she did her best to look to make sure that no cars were coming before making the turn.

Trial Court's Findings

[10] His Worship gave reasons for judgement that spanned 19 pages. In that decision His Worship made several findings of fact. These included:

i. The motor vehicle operated by the Appellant turned left on a solid green light at the time two vehicles were approaching with their headlights on;

ii. Even if the Costa vehicle was travelling at 78 kilometres per hour that was not a "gross speed";

iii. Speeds 50 kilometres per hour over the speed limit are, or could be, gross speed; and

iv. The Appellant's actions were not consistent with a safe movement.

Appellate Analysis

The "Gross Speed" Argument

[11] Mr. Tompkins argues that the trial Court erred in law by finding that, even if the speed of the Costa vehicle was 28 kilometres per hour over the speed limit as the defence alleged, such a rate of speed above the limit was not "gross speed" as that phrase is known in R. v. Dillman 2008 ONCJ 101. In that case Duncan J. held that the onus is on the turning driver to make the turn safely unless the oncoming driver is travelling at a "gross" rate of speed. Under such a scenario the turning driver would have no ability to turn safely because the oncoming driver was travelling too fast. Mr. Tompkins argues that, rather the correct approach in law regarding "gross speed" is to use a proportionality calculation. Fifty percent over the limit is a bright line, over which the oncoming vehicle would be travelling at a gross rate of speed. Since the Costa vehicle was travelling at 28 kilometres per hour over the limit, Ms. Shabo was duly diligent in making the turn because of Ms. Costa's gross speed as an oncoming vehicle.

[12] I cannot accept that argument for three principal reasons. First, s. 142(1) casts a high onus on the turning driver to ensure that the turn can be made safely; see Payne v. Lane, [1949] O.J. No. 65 (H.C.J.) at para. 2, as followed in R. v. Goldhawk 2015 ONCJ 626 at para. 22. That rule flows from sensible road safety considerations. A bright line approach as suggested by the Appellant would be inconsistent with this jurisprudence since a turning driver would not have to make the turn safely under s. 142(1) if the oncoming traffic was travelling more than 50% higher than the speed limit. That would defeat the purpose of the legislation. Second, the 50% figure suggested is arbitrary, and not grounded in the evidence of this case or any other basis. Third, the language of s. 142(1) of the HTA imposes an obligation to make a turn "safely". What is a safe turn, and conversely an unsafe turn on the language of the section is a fact specific inquiry. I agree with Duncan J.'s comment in R. v. Dillman (at para. 11) that "The very concept of doing something "in safety" suggests to me a fluid standard where what is required will vary according to the circumstances." I can find no decisions which conflict with Dillman. Had the legislature intended to incorporate a defence which was so clearly demarcated it would have said so.

[13] The Appellant argues that the trial Court conflated the stunt driving provisions with the "gross speed" rule from Dillman. That is a mischaracterization of His Worship's reasons for judgment. His Worship said, "It is this court's finding that speeds 50 kilometres over the limit are or could be characterized as "gross speed" but not 28 kilometres per hour." The reference to 50 kilometres per hour is merely an example of what would, or could, be gross speed, and nothing more. Reading his reasons as a whole I can find no error of law in his analysis.

Expert Evidence Issues

[14] During argument of this appeal, I raised the issue of whether one of the prosecution expert witnesses, Det. Constable Hebert, gave an opinion beyond the scope of his qualifications. Det. Cst. Hebert was qualified to give an opinion on "a –as an expert in – for this proceedings for reconstruction purposes." That was unopposed by the defence. In cross-examination Det. Cst. Hebert was asked about the effect of speeding on his investigation. Det. Cst. Hebert had previously testified that he could not give evidence about the speed of the Costa vehicle. Despite this, he was asked about what an accused should expect, when faced with oncoming traffic travelling at 28 kilometres per hour faster than the speed limit. His answer was that speed was not something that is so out of the ordinary that the turning driver is not capable of anticipating.

[15] In his reasons, the trial Court referred to this, saying that "The Court notes that both Detective Constable McIntyre and Detective Constable Hebert suggested that the speed of the Costa Ford was not a contributing factor to the accident."

[16] Reviewing the trial record I am not sure that Det. Cst. Hebert was qualified to give an expert opinion about what drivers should reasonably expect when turning into oncoming traffic, nor was he qualified to give such an opinion about what an accused could or could not reasonably anticipate. That was part of the due diligence defence and so part of the legal determination to be made by the court. In this sense his opinion was not necessary; see R. v. Sekhon 2014 SCC 15; R. v. Singh 2014 ONCA 791. In my humble view greater care should have been made to more accurately define the scope of the expert testimony, and also to keep the expert from straying from those confines.

[17] Despite these concerns, I am satisfied that the reference to the police opinion about speed not being a contributing factor to the accident caused no harm to the Appellant. I say this because, first, the offending questions were asked by the Appellant's counsel, not the Crown. There was a tactical advantage to this line of questioning. If Det. Cst. Hebert had answered differently, namely that the proposed speed of 28 kilometres per hour over the limit made a safe turn impossible, then it may have assisted the defence, despite my concerns about overreach of such an opinion. Second, it appears that the police opinion of speed was not a pivotal or significant basis upon which the trial Court founded the conviction.

Credibility and Factual Findings

[18] The trial Justice was clear that he rejected the Appellant's evidence about not seeing the headlights of the vehicles approaching. This finding was open to him based on all the evidence and is a credibility determination which is entitled to deference. Once His Worship made that finding, it was clear that he found that Ms. Shabo could have slowly pulled into the intersection to ensure a safe turn but did not. Once His Worship rejected the accused's testimony on the issue of whether she saw the headlights, he was entitled to accept the evidence of Ms. Costa and Mr. De Guzman that both of their cars had their headlights on. He was then entitled to infer that Ms. Shabo's turn was made without regard to the lights of oncoming traffic and so was unsafe.

[19] The Appellant made many objections to how the evidence favoured her side of it, but the Appellant must show that the trial court's findings of fact demonstrate palpable and overriding errors; see Housen v. Nikolaisen 2002 SCC 33. Mr. Tompkins argues that the trial Court failed to find as a fact the evidence offered by the defence expert Mr. Porter. In my review of His Worship's reasons for judgment, His Worship expressed concern about Mr. Porter's testimony because of his assumptions and extrapolations. All of those were reasonably open to the trial Court and entitled to deference.

[20] Referring to Mr. Porter's opinion about the Costa vehicle travelling at 78 kilometres per hour before impact, His worship found that "Even if the court accepted this figure which is based on assumptions, the court finds the speed not to be a "gross" speed at 28 kilometres over the posted limit of 50 kilometres per hour." The determination of whether the oncoming vehicle impacting a left turning vehicle was moving at a "gross speed" is a case specific finding and His Worship was fully entitled to make that finding considering the very extensive evidence that he heard. Mr. Porter's evidence had no impact on the final verdict, even if it had not been diminished in weight as it was.

[21] Mr. Tompkins also argues that His Worship erred when he found that Ms. Shabo saw two sets of headlights approaching her. He argues that the evidence was clear that Mr. De Guzman was behind, and not beside, Ms. Costa at the time of impact. In my review of His Worship's reasons for judgment he found that "…clearly there were two sets of headlights from vehicles coming towards her." Mr. De Guzman had said that at a point before the impact Ms. Costa moved her car in front of Mr. De Guzman. Prior to that point the two cars were side by side. Given the testimony from De Guzman this finding was reasonably available to him.

Decision

[22] The Appeal is dismissed.

Released: May 13, 2016

Signed: "Justice D.S. Rose"