Archibald, T., Jull, K., and Roach, K. Regulatory And Corporate Liability: From Due Diligence To Risk Management (Aurora, Ontario: Canada Law Book Inc., 2007).

Paciocco, D.M. and Stuesser, L. The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011).

EXHIBITS ENTERED

Exhibit "1" - Copy of two photographs taken by the defendant on December 12, 2015, at approximately 11:30 a.m. In the top photograph, which had been taken from the passenger side of both vehicles involved in the collision, the position of the defendant's Toyota Corolla motor vehicle is to the rear of the grey KIA Sorrento SUV motor vehicle after the collision. The rear half of the KIA Sorrento SUV motor vehicle is situated over the pedestrian crosswalk for the eastbound lanes of Sandalwood Parkway East at the intersection of Sunforest Drive and Sandalwood Parkway East in the City of Brampton. The Toyota Corolla shows a significantly buckled hood and damage to the front of the vehicle and has more damage than which is visible on the KIA Sorrento SUV motor vehicle. For the bottom photograph, which is taken from the driver's side of both vehicles involved in the collision, the rear tires of the KIA Sorrento SUV motor vehicle is shown to be stopped over the pedestrian crosswalk that is located just east of the west boundary line of the pedestrian crosswalk. (1 page)

1. INTRODUCTION

[1] The offence of careless driving in Ontario covers a broad spectrum of motorists' driving actions or behavior. It could occur when a motor vehicle is being driven at a high rate of speed or a slow speed. It could happen when the driving is being done in bad weather or in good weather. It could take place on icy roads or on dry roads. It could transpire on busy roads or even when there are no other cars around. It could also result when a motorist does not adjust their driving for the particular traffic, weather, lighting, or road conditions.

[2] Besides those situations, careless driving could also be characterized in some cases where there has been aggressive driving, illegal lane changes or the failure to signal turns or lane changes, or when a motorist makes a U-turn in the middle of the intersection and strikes another vehicle, or in the situation where the motorist falls asleep at the wheel and hits a parked vehicle, or when a motorist is using and holding a cell phone to their ear and drives through a stop sign.

[3] In Ontario, the elements for the offence of "careless driving" are set out in section 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA"). It provides that a motorist is guilty of careless driving if they either drive a vehicle on a highway without due care and attention or without reasonable consideration for other persons using the highway. Furthermore, section 130 sets out the type and range of penalties that could be imposed on an accused motorist if they were to be convicted of committing the offence of "careless driving", which includes a fine between $400 and $2,000 or a term of imprisonment of not more than six months, or both a fine and imprisonment, or the suspension of their driver's licence for a period of not more than two years:

Every person is guilty of the offence of driving carelessly who drives a vehicle or street car 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.

[4] Therefore, in order to find that a motorist is guilty of careless driving under the HTA, the prosecution must prove beyond a reasonable doubt that the motorist had been driving either without due care and attention or without reasonable consideration for others using the road. In addition, the prosecution must prove the accused motorist's driving is a departure from the standard of care that an ordinary driver would have used or given in the same circumstances: R. v. Beauchamp, [1953] 4 D.L.R. 340. Furthermore, the offence of careless driving is a strict liability offence under the R. v. Sault Ste. Marie categorization of offences: R. v. Skorput (1992), 72 C.C.C. (3d) 294. As such, the prosecution only needs to prove the motorist has committed the actus reus of the offence beyond a reasonable doubt and does not have to prove any mens rea element; while the motorist is required to prove that they exercised due diligence on a balance of probabilities to avoid conviction if the prosecution has fulfilled their legal burden in establishing beyond a reasonable doubt that the defendant has committed the actus reus of the offence.

[5] In short, careless driving is a measure of negligent driving where the specific driving action falls below what a reasonably prudent and cautious motorist's driving would have been in the same circumstances and where the accused motorist has not taken all reasonable care or steps in the circumstances to avoid the particular prohibited event.

[6] In the present case, Shant Papzyan ("the defendant") has been charged with careless driving after his Toyota Corolla motor vehicle had collided into the rear bumper of a KIA Sorrento SUV motor vehicle that had stopped for a traffic light at the intersection at Sandalwood Parkway East and Sunforest Drive in the City of Brampton. The collision between the two vehicles had occurred at 10:54 a.m. on December 12, 2015, in the eastbound curb lane of Sandalwood Parkway East, on the westside of the intersection. Michelle Simon had been the driver of the KIA Sorrento vehicle that had been rear-ended by the defendant's vehicle. She testified that the traffic light she was approaching had changed from green to yellow so she had applied her brakes to slow her vehicle and then had gradually come to a stop before the stop line. Simon then said she heard a screeching noise behind her and then felt her car being hit from behind and being pushed into the intersection. She also said that the defendant had asked her immediately after the collision why she had stopped, to which Simon had replied that she had stopped for the yellow light. After which Simon said the defendant had uttered to her, "You hear me skid so why you not go".

[7] Furthermore, the prosecution contends that because Michelle Simon's KIA Sorrento vehicle had not stopped suddenly, but had gradually slowed and stopped at the intersection for a yellow traffic light, then the defendant could not been driving with due care and attention since the defendant had not slowed or stopped his vehicle for the yellow traffic light, but had to slam on his brakes at the "last second" and then skidded into the rear of the Simon vehicle that had properly and gradually come to a stop at the intersection. In addition, an independent witness that had been driving immediately behind the two vehicles involved in the collision corroborated Michelle Simon's testimony that Simon had gradually slowed and stopped her vehicle for a yellow light just before the defendant's vehicle had collided into the Simon vehicle.

[8] However, the defendant contends that the Simon vehicle had entered the intersection on a green light and that the traffic light had changed to yellow when half of the Simon vehicle had been over the pedestrian crosswalk, which is just east of the stop line for eastbound traffic, and had then unexpectedly and abruptly stopped on the pedestrian crosswalk, which had caused the defendant to slam on his brakes in an effort to stop his vehicle. And, because of this supposedly unexpected and sudden stop made by the Simon vehicle, the defendant said he had been unable to stop in time on the wet and slippery road and skidded into the rear of the Simon vehicle, even though the defendant said his vehicle had been moving at only 42 to 44 k.p.h. before he had to slam on his brakes, which is below the speed limit of 60 k.p.h. for that part of Sandalwood Parkway East.

[9] Furthermore, after an investigation was conducted by Cst. George of the Peel Regional Police into the collision between the KIA Sorrento and Toyota Corolla motor vehicles at the intersection of Sandalwood Parkway East and Sunforest Drive, Cst. George issued a Part I Certificate of Offence and served a Notice of Offence on the defendant on December 12, 2015, for the offence of careless driving, contrary to section 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA"), with a set fine of $400.

[10] The trial of this careless driving charge had then been held over two days: March 18, 2016 and April 8, 2016. In the trial, four witnesses had testified. Three had testified for the Crown, while the defendant had testified in his own defence. Then, after final submissions, judgment was reserved and adjourned until August 25, 2016, for the judgment to be given. These, therefore, are the written reasons for judgment:

2. FACTUAL BACKGROUND

[11] On December 12, 2015, at approximately 10:54 a.m., the defendant's Toyota Corolla motor vehicle had collided into the rear of a dark-grey KIA Sorrento SUV vehicle driven by Michelle Simon when Simon said she had slowed her vehicle from a speed of 50 to 60 k.p.h. and gradually stopped her vehicle for a yellow or amber light. Both vehicles had been driving eastbound in the curb lane of the two eastbound lanes of Sandalwood Parkway East on the westside of the intersection of Sandalwood Parkway East and Sunforest Drive in the City of Brampton.

[12] The intersection of Sandalwood Parkway East and Sunforest Drive is controlled by automatic traffic lights.

[13] At the time of the collision, the eastbound lanes of Sandalwood Parkway East at Sunforest Drive had been wet from an earlier rainfall.

[14] Sandalwood Parkway East is for the purposes of the trial an east-west road that has two lanes westbound and two lanes eastbound. For the north-south roads at the intersection, Braidwood Road runs north of Sandalwood Parkway East while Sunforest Drive runs south from Sandalwood Parkway East.

[15] As shown in the photographs entered as Exhibit #1, both the Simon vehicle and the defendant's vehicle had come to stop over a pedestrian crosswalk after the collision, still in contact with each other. The pedestrian crosswalk is located just east of the white stop line for eastbound traffic on Sandalwood Parkway East on the westside of Sunforest Drive. The pedestrian crosswalk is painted on the road surface and is comprised of white bars.

[16] In addition, the traffic light had been operating properly at the time of the collision and consists of a cycle where the sequence of the traffic light for eastbound traffic on Sandalwood Parkway East is a green phase followed by a yellow phase of six to seven seconds and then followed by a red phase.

[17] Moreover, Cst. George, who had investigated the collision between the defendant's vehicle and the Simon vehicle, said he had observed the traffic lights functioning for more than three cycles and said they had been operating properly. He also said the yellow light phase had been for a duration of six or seven seconds, while Michelle Simon had said the yellow light had been for four seconds. Because Cst. George has investigated motor vehicle accidents before and had actually observed the traffic lights cycle for more than three times, then his testimony that the yellow or amber light had a duration of six or seven seconds is preferred to Simon's testimony that the yellow light phase had been for four seconds.

[18] More importantly, in refutation of the testimony of Michelle Simon and the testimony of Kingsley Henry, who is an independent witness of the collision, the defendant claims that the Simon vehicle had entered the intersection on a green light and that when half of the Simon vehicle had been on the pedestrian crosswalk located east of the stop line, the traffic light had changed from green to yellow, at which point the defendant insists the Simon vehicle had abruptly stopped so that the rear half of the Simon vehicle had come to rest on the pedestrian crosswalk. This particular contention would mean that the Simon vehicle had been able to come to a complete stop on the wet road in a distance of only half of a car length and from a speed of 50 to 60 k.p.h. And, because the Simon vehicle had abruptly stopped in front of the defendant's vehicle, which he contends had only been travelling at only 42 to 44 k.p.h. at a distance of five car lengths behind the Simon vehicle, the defendant said he had to slam on his brakes when he saw the red brake lights on the Simon vehicle go on. He then said that after slamming on his brakes he had tried to move his vehicle as far as he could to his right and that his tires may have rubbed the curb, and that he had skidded approximately 11 meters for four to five seconds before his vehicle had collided into the rear of the Simon vehicle.

[19] In addition, the defendant said that his vehicle did not push the Simon vehicle at all forward when his vehicle had collided into the rear of the Simon vehicle.

[20] Furthermore, the defendant said that before the collision had occurred he had been driving his wife to work and because of the rain and the wet and slippery roads he had been driving in the curb lane at a speed of 42 to 44 k.p.h., which he said is below the speed limit of 60 k.p.h. for that part of eastbound Sandalwood Parkway East. He also said he knew that he had been going at that slower speed because he had looked at his speedometer 15 seconds earlier.

[21] Also, Michelle Simon said the defendant had asked her immediately after the collision why she had stopped in which Simon said she had stopped for the yellow light and to which the defendant then had uttered, "You heard me skid so why you not go?" However, in explaining what he had meant by this comment at trial, the defendant's recollection of that conversation had been different from that of Michelle Simon's recollection of what the defendant had uttered to her. The defendant had testified that because the Simon vehicle had stopped at the wrong place and at the wrong time, he said he had actually asked Michelle Simon why did she stop for the yellow light after she had already gone past the pedestrian crossing.

[22] In addition, Michelle Simon's testimony, for the most part, had been corroborated by an independent witness who had been driving immediately behind the defendant's vehicle in the same eastbound curb lane of Sandalwood Parkway East as both the Simon vehicle and the defendant's vehicle had been driving in. The independent witness, Kinsley Henry, had testified that he had been driving immediately behind the defendant's vehicle at a distance of about five car lengths and had seen everything happen. Henry had also said that the Simon vehicle had slowed and gradually stopped for a yellow light, but that it did not come to a full stop until the traffic light had changed from yellow to red. In addition, Henry said that the Simon vehicle had not made an abrupt stop and that it been stopped for about half of a second before the defendant's vehicle collided into the Simon vehicle. Henry also said that the defendant's vehicle did not appear to be able to stop in time and that the defendant's vehicle had made an abruptly stop at the "last second" before it collided into the Simon vehicle and pushed the Simon vehicle about half of a car length into the intersection. Henry then said he called the police at approximately 10:55 a.m. to report the accident.

[23] Furthermore, Cst. George, who was the police officer who had investigated the collision, said he had received a radio call at 10:55 a.m. to attend a motor vehicle collision and then arrived at the Sandalwood and Sunforest intersection at 11:05 a.m., which is about 11 minutes after the collision had occurred. When he arrived, he said he had observed two damaged vehicles that were stopped in the curb lane of Sandalwood Parkway East in the City of Brampton. He also said the front part of the Toyota Corolla vehicle had been significantly damaged while the KIA Sorrento SUV vehicle had only showed minor damage to its rear end. After having spoken with the witnesses and after having observed the position of the two vehicles involved in the collision, Cst. George then decided to charge the defendant with the offence of careless driving.

(A) SUMMARY OF TESTIMONY

[24] Four witnesses had testified in the trial. The following is a summary of their testimony:

(1) Michelle Simon (the driver of the vehicle struck from behind by the defendant's vehicle)

[25] Michelle Simon testified she had been involved in an accident while she was driving eastbound on Sandalwood Parkway East at about 10:40 or 10:50 a.m. as she approached the intersection at Sunforest Drive. She further said that Sunforest Drive is a north-south road. In addition, she said traffic lights controlled that intersection. Simon also said that her son had been sitting in the back seat of her car, which is a dark-grey KIA Sorrento SUV motor vehicle.

[26] Furthermore, Simon said traffic had been flowing and that there had been other vehicles on the road also travelling in the east-west direction. However, she does not recall if there were vehicles travelling north and south at that intersection.

[27] As she approached the intersection, Simon said her traffic light had turned yellow and she came to a stop. She also said she had made a good stop and did not slam on her brakes, nor did her vehicle skid or slide when she had braked. In addition, she said the yellow or amber light was for four seconds and that she had clearly seen it.

[28] In addition, Simon said that she had been approximately four to five car lengths from the intersection and that she had been travelling between 50 to 60 k.p.h. in a posted 60 k.p.h. speed limit area when the traffic light went from green to yellow. She also estimated that when the light changed to yellow she had been about 40 feet from the intersection based on the average car being about eight to 10 feet in length.

[29] Simon also said there had been a white pick-up truck in the left lane beside her, who she said had stepped on the gas and had gone through the intersection on the yellow or amber light. In addition, she said that she had heard the sound of the pick-up truck speed up.

[30] Furthermore, as she came to a stop, Simon said she heard skidding from her rear and then was hit and then her vehicle had been pushed a couple feet into intersection over the white bars. She also said her vehicle had been struck on her rear bumper.

[31] Moreover, Simon said that it had rained earlier and the road had been wet, but she had no difficulty stopping. She also opined that at a higher speed the road could have been slippery.

[32] After the collision, Simon said the driver who had hit her from behind had asked her if she was okay and had also checked out the rear of her car. She also said that the other vehicle involved in the collision with her vehicle was a light beige or tan coloured Toyota motor vehicle, and that it had gone under her rear bumper and that from the damage visible on that Toyota motor vehicle, Simon said she did not think it was drivable nor able to pull over to the side of the road.

[33] Simon then identified the defendant seated in the courtroom as the driver who had approached her and asked her if she was O.K.

[34] In addition, Simon said that the defendant had also asked her why she had stopped, to which Simon said she had replied that she had stopped for the yellow light. Then, Simon said the defendant had asked her that since she had heard the defendant skid then why did Simon not go ahead.

[35] Simon also said she had been concerned with her son in the back seat after the collision.

[36] In addition, Simon said she had seen other people in the car that had hit her and said they were the defendant's wife and son, and they had been sitting in the back seat of that car. She also said there had been no one sitting in the front passenger seat of the defendant's car.

[37] Furthermore, Simon said she did not see any other collisions or accidents while she was at the intersection and that she had also observed vehicles flowing for 10 minutes. In addition, she said that there were no other vehicles that had been involved in the collision or that there had been other collisions, nor had she heard other screeching of tires at the intersection.

[38] Simon also said she could see the traffic lights, but that there had been nothing unusual about the traffic lights.

[39] Before arriving at that intersection, Simon said she had entered the Sandalwood Parkway East from Chinguacousy and had been driving for about three or four city blocks before she reached the intersection at Sunforest Drive, which is east of Highway 10. She also said she had come from the McLaughlin and Highway 10 area.

[40] In addition, Simon said she did not have any difficulty stopping her vehicle that morning at any intersection controlled by a traffic light. She also said she had no problem stopping at the intersection of Sandalwood Parkway East and Sunforest Drive.

[41] Simon also said the police had arrived about 10 minutes later.

[42] Moreover, Simon said the defendant had been wearing flip-flops with bare feet.

[43] Furthermore, Simon said she did not see the defendant's vehicle approaching her vehicle until after she had stopped her car and heard the screeching sound. As for the screeching noise, Simon said that it had meant that a vehicle had to make a screeching halt and had trouble stopping when applying the brakes.

[44] Simon also said she had been driving since she was 16 and has at least 30 years of driving experience.

[45] In addition, Simon said she had discussed the case at the roadside with the other witness, who was not the defendant.

[46] Furthermore, Simon said she did not see the defendant's vehicle speeding or weaving in or out of traffic, nor did she see the defendant's vehicle involved in any bad driving behavior before she had been hit.

[47] When shown the photograph taken of her vehicle and the defendant's vehicle after their collision (Exhibit #1), Simon said that her vehicle was the front vehicle in the photograph that was stopped over the white lines and that the defendant's vehicle was to the back of her vehicle. She then explained that her vehicle from the collision had been pushed forward into the intersection.

(2) Kingsley Henry (an independent witness driving about five car lengths behind the defendant's vehicle in the same lane)

[48] Kingsley Henry testified he had witnessed an accident on December 12, 2015, as he approached the traffic lights at the intersection. He believes the accident had occurred in the early afternoon.

[49] In addition, Henry testified there are two lanes for eastbound Sandalwood Parkway East and that he had been driving in the curb lane.

[50] Henry also said that there had been two cars driving ahead of him and that when the traffic light had changed to red, the first car (Simon's vehicle) had slowed down to stop. In addition, Henry said he had slowed down, but the second car (defendant's vehicle) or the vehicle immediately in front of him did not appear to be slowing down. Furthermore, Henry said he had observed that the second car try to stop at the last second but had lost control and rear-ended the first car, which had already stopped for the traffic light.

[51] In addition, Henry said he had been driving about five car lengths behind the second car and paying attention to the traffic signals. He also said he had to look up for the traffic signals and had seen everything occur.

[52] Furthermore, Henry said that the first car had appeared to stop for the yellow light. He also said that it had been a yellow light first and then had changed to a red light. In addition, he said the first car had not fully stopped until the yellow light had turned to red.

[53] Moreover, Henry said because it had been raining the road had been wet, which had obligated everyone to drive according to the weather conditions. However, he also said that it had been raining, but that it had stopped. Henry also said the road was still wet at the time of the collision and may have been slippery because it had been wet.

[54] Furthermore, Henry said that the first car had slowed and stopped gradually and that it had not been a last second stop, while the second car had stopped abruptly at the last second. Furthermore, Henry said that he did not see anything that would have caused the second car to stop abruptly, by explaining that he did not see anything crossing and had only seen just the two cars involved in the collision.

[55] In addition, Henry said that the second car had suddenly braked and rear-ended the first car. Henry also said the first car had not been stopped for that long, maybe for half of a second before the second car had contacted the first car. He then said that the first car had been pushed forward about half of a car length over the line.

[56] Henry then said he stopped and called the police first and then got out of his car to ask if everyone was okay. He said that the driver of the first car had been a female and that he had observed her here today in the courtroom. And, for the driver of the second car, Henry said he had also observed that person in the courtroom and then pointed to the defendant as the driver of the second car. Henry also said he had observed both drivers being out of their respective cars.

[57] In addition, Henry said he had been driving for approximately 1.5 kilometers from the Queen Mary and McLaughlin area and had stopped at four intersections before reaching the intersection in Brampton where the collision had occurred. He further said he had no difficulty in stopping at any of those intersections where he had stopped at earlier. He also said that he had just applied the brakes on his car and slowed down and had no problems bringing his vehicle to stop at that intersection where the collision had occurred.

[58] Henry also testified that he did not know the other participants in this proceeding. He also said he lives in the area where the intersection was situated. In addition, he thinks the speed limit for the road was 60 k.p.h., but did not pay attention to the speed the defendant's vehicle had been doing until the light had changed.

[59] Henry also said he had made a statement to the police when the police arrived.

[60] Moreover, Henry said that there had only been three of them stopped at the intersection. In addition, Henry said that he did not see any other vehicles go through the intersection on a yellow light.

[61] Henry also said that the defendant's car did not appear to be speeding nor weaving side to side and that the defendant's driving behaviour did not cause Henry to have any concern.

(3) Cst. George (the police officer who investigated the collision and charged the defendant)

[62] Cst. George testified he is a police officer and that he has been assigned to 22 Division of the Peel Region Police since 2008. He also said he had investigated the present matter, but is not certified as an accident and collision reconstructionist. However, he said he has investigated accidents since 2007. In respect to his investigation of the present matter, Cst. George said he had received a radio call at 10:55 a.m. about a motor vehicle collision that had occurred on Sandalwood Parkway East.

[63] In addition, Cst. George said that he arrived at 11:05 a.m. at the intersection and spoke with the parties involved in the collision and one independent witness who had been there. Moreover, Cst. George said he does not speak the Arabic language, but that the defendant's English had been sufficient enough, so that Cst. George could have a conversation with the defendant.

[64] Furthermore, Cst. George said that Braidwood Lake Road runs north of the intersection while Sunforest Drive runs to the south.

[65] Cst. George also said that when he had arrived at the intersection he had observed two motor vehicles in the curb lane of eastbound Sandalwood. He said the first vehicle was a grey four-door Toyota Corolla with licence plate number BHBK212. For the second vehicle, Cst. George said that it was a KIA Sorrento with licence plate number BXEX530. He also said the KIA Sorrento vehicle was being driven by Simon while the Toyota Corolla vehicle was being driven by the defendant, Shant Papzyan. Cst. George then identified Shant Papzyan in the courtroom as the defendant. He also said that the defendant had provided him with a valid Ontario driver's licence in the name of Shant Papzyan.

[66] In addition, Cst. George said the Toyota motor vehicle had major damage at the front of the vehicle while the Sorrento vehicle had been moderately damaged at the rear of the vehicle. When he was shown the two photographs entered as Exhibit #1, Cst. George said that the way the vehicles had been shown situated in the photographs is the way the vehicles had been situated when he had arrived at the intersection. He also said the line markings, the crosswalk, and marks were also depicted on the photographs.

[67] Cst. George also said he had no concerns with the traffic lights and said there had been no discrepancies from his viewpoint or position. He also said he had observed three plus cycles and there had been no discrepancies. He further said the traffic light had cycled from green to yellow to red. He also noted that the amber or yellow light had been on for six or seven seconds. Furthermore, he said the traffic lights were not malfunctioning. He also said he is not aware of any request that had been made to rectify the traffic lights and put them in manual control. Nor had there been an officer there directing traffic or an officer dispatched there to control traffic. In addition, he said he did not check to see if there had been any prior maintenance issue with those traffic lights in the past.

[68] To get to the intersection, Cst. George said he had travelled a few minutes westbound on Sandalwood Parkway East. He also said the traffic had been slow and that he had no problem slowing down or stopping when he put on the brakes of his cruiser. He also said that it had been raining and the roads were wet and slippery. However, he did not observe any oil on the road.

[69] In addition, Cst. George said he had been at the intersection of the collision from 11:05 a.m. to 1:00 p.m. He also said there had been no further accidents there while he had been at the scene.

[70] Moreover, Cst. George said that the speed limit for eastbound Sandalwood Parkway East in the area where the collision occurred is a posted 60 k.p.h. speed limit.

[71] In addition, Cst. George said he did not do a detailed analysis of the accident or a debris field analysis. He also said he did not test the brake lights in the KIA Sorrento vehicle nor did he have any information on the reaction time of the drivers that were involved in the collision. In addition, he said that he did not have any information about the speed of the defendant's vehicle nor did he have any concern about drugs or alcohol.

[72] Cst. George also said in laying charges that each case is different. He also said that despite having discretion, he usually lays careless driving charges in rear-end collisions. For the case at bar, Cst. George he said he had laid the careless driving charge based on the information he had received from the witnesses and the position of the two motor vehicles involved in the collision.

(4) Shant Papzyan (the defendant)

[73] Shant Papzyan, the defendant, testified that he recalls the collision, which had occurred on a Saturday at approximately 10:40 to 10:42 in December while he had been taking his wife to work, but said he had not been in a hurry. He also said that his wife and four-year old son were in the car, which is a 2007 Toyota Corolla.

[74] In addition, the defendant said that because there had been some rain he had been driving slower than usual and drove on the right side of the road.

[75] Furthermore, the defendant said the light had been green and the vehicle in front had been driving normal, but when the light had changed to yellow the defendant said that half of the car which had been driving immediately in front of him, had crossed the pedestrian sign as soon as the light had turned yellow and then immediately stopped. Then when he observed the red brakes lights on the car in front of him go on, he said he immediately slammed on his brakes and his car skidded. He also said that he thought for a split second about moving to the right a little to avoid the car in front of him, but could not control his car because of the skid and then the accident between the car in front and his car occurred.

[76] In addition, the defendant said he had been familiar with the area, since he has taken his wife to work for more than one year and eight months.

[77] Furthermore, the defendant testified that he had been driving at about 42 to 44 k.p.h. and the reason why he recalls what speed he had been driving at was because he had looked at his speedometer 15 seconds earlier.

[78] The defendant also said that just before the accident had occurred the distance between his car and the car driving in front of him had been about 10 to 11 meters.

[79] When shown the photographs (Exhibit #1) that he had taken of the two vehicles still touching each other after the accident, the defendant said that the photographs show that the rear part of the Simon vehicle was on the pedestrian line and that his vehicle had been locked into the Simon vehicle.

[80] Also, when asked if the Simon vehicle had moved after his vehicle collided into it, the defendant said, "No, not at all". Then when asked how far his vehicle had skidded after he had applied the brakes, the defendant replied that he skidded for four to five seconds and that he travelled 10 to 11 meters or approximately 36 feet in his skid before striking the Simon vehicle because the ground was very slippery, since it was just starting to rain. The defendant also referred to visible puddles of water in the photograph. He also agreed there had been no ice on the road at the time of the collision.

[81] In trying to avoid the collision, the defendant said he had tried to move to the right and that the side of his tires may have been stopped by the sidewalk curb to slow him down before his vehicle had hit the Simon vehicle.

[82] Moreover, when asked about other witnesses having testified earlier about the traffic light being the colour yellow for quite some time, the defendant disagreed with their testimony and replied that the traffic light had immediately turned yellow when Simon's car had stopped and that her testimony is different from his. However, he said that his testimony is not different from Kingsley Henry's testimony about the Simon car being stopped when the light became yellow.

[83] Furthermore, the defendant said he had not taken any medication or drank any alcohol.

[84] In addition, he said he had taken photographs of the two vehicles in the collision immediately after the accident.

[85] The defendant also said that his Toyota motor vehicle has 130,000 kilometers on it, but that his tires were very good and that his brakes were also in good shape.

[86] As for what caused his vehicle to collide into the Simon's SUV motor vehicle, the defendant said it had been because his vehicle had been skidding. Furthermore, because the Simon vehicle had not stopped in the right place or at the right time, the defendant explained that he had questioned Michelle Simon, "Why did you stop while it was yellow and after the vehicle had passed the pedestrian crosswalk?" He also said that he had read the law on yellow traffic lights and said that the law states that one has to stop for a yellow light if one can stop, but if one cannot stop then one can cross safely.

[87] Furthermore, the defendant reiterated that the traffic light was green when one-half of the Simon car was on the pedestrian crossing and that the Simon vehicle had stopped after the pedestrian crossing.

3. ANALYSIS

[88] Since careless driving is a strict liability offence then the fault element for careless driving is one of negligence, in which the prosecution does not have to prove any mens rea element in order for a conviction and is only legally obligated to prove the accused has committed the actus reus of the offence beyond a reasonable doubt: R. v. Cianchino, [2010] O.J. No. 3162 (O.C.J.), at para. 93, and in R. v. Hubbs, 2014 ONCJ 32, [2014] O.J. No. 381, at para. 49. As such, once the prosecution proves an accused has committed the actus reus of the offence beyond a reasonable doubt, then in order for the accused to be acquitted of the offence the accused must prove on a balance of probabilities that they had not been at fault or negligent and that they had taken all reasonable steps for the circumstances to prevent or avoid the prohibited act or that they had reasonably believed in a mistaken set of facts which, if true, would render their act or omission innocent: R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353.

[89] Furthermore, in R. v. Beauchamp, [1953] 4 D.L.R. 340, the Court of Appeal for Ontario has formulated a test for determining whether an accused motorist should be held liable for the offence of careless driving. The test is whether the prosecution has proven beyond a reasonable doubt that the accused motorist, in light of the existing circumstances of which the accused motorist was aware of or which a motorist exercising ordinary care ought to have been aware of, had failed to use the care and attention, or give other persons using the highway the consideration that a motorist of ordinary care would have used or given in the circumstances, and that the conduct in question must be of the nature that breaches a duty to the public and deserving of punishment:

It is whether it is proved beyond reasonable doubt that the accused, in the light of existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances.

There is a further important element that must also be considered, namely, that the conduct must be of such a nature that it can be considered a breach of duty to the public and deserving of punishment.

[90] In addition, in R. v. Kinch, [2004] O.J. No. 486 (S.C.J.O), at paras. 50 to 53, Durno J. after reviewing the law on careless driving summarized the legal criteria or principles to take into consideration for determining whether an accused motorist has committed the offence of careless driving. This includes that the standard of care and skill required of a motorist is not one of perfection; that the factual standard of care and skill is constantly shifting, depending on road, visibility, weather conditions, traffic conditions and any other condition that ordinary prudent motorists would take into consideration; that the standard of care and skill is objective, impersonal and universal, and not related to the degree of proficiency or experience of a particular motorist; and that in cases involving accidents, the gravamen of the offence is whether the prosecution has established the accused motorist had been driving carelessly and not based on the consequences of the motorist's driving:

The test for careless driving has remained constant since the Court of Appeal decision in Beauchamp, supra. The main criteria are the starting point in determining whether the Crown has established the trial judge erred in law:

The evidence must be such as to prove beyond a reasonable doubt that the accused drove without due care and attention or without reasonable consideration for others.

The standard of care and skill is not one of perfection. Rather, it is a reasonable degree of skill, and what an ordinary person would do

The use of the term "due" means care owing in the circumstances. While the legal standard of care remains the same - what the average careful man would have done in the circumstances, the factual standard is constantly shifting, depending on road, visibility, weather conditions, traffic conditions and any other condition that ordinary prudent drivers would take into consideration.

The law does not require of any driver that he should exhibit perfect nerve and presence of mind, enabling him to do the best thing possible. It does not expect him to be more than ordinary men. 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 at a critical moment in disregard of the safety of themselves and other users of the road.

The standard was objective, impersonal and universal, in no way related to the degree of proficiency or experience of a particular driver.

There was a further important element - that the conduct must be of such a nature that it could be considered a breach of duty to the public, and deserving of punishment. This further step must be taken even if the accused's conduct fell below the standard.

The test where an accident has occurred, is not whether the accident would not have happened if the accused had used greater skill or care, but whether it was proved beyond a reasonable doubt that the accused, in the light of existing circumstances of which he knew or should have known, failed to use the 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 in the circumstances.

In cases involving accidents, the gravamen of the offence is whether the prosecution established the accused was driving carelessly, and not the consequences of the driving: R. v. Pyszko [1998] O.J. No. 1218 (Ont. Ct. J.).

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: R. v. Globocki (1991), 26 M.V.R. (2d) 179 (Ont. Ct. J.-Prov. Div.). The Crown had to show a sufficient departure from the standard of a prudent and reasonable driver to make the driving "deserving of punishment." In acquitting the accused who had struck a pedestrian in Globocki, the trial judge noted:

A driver is entitled to make reasonable assumptions about the behavior expected of other users of the road, and it is not unreasonable to assume that a pedestrian crossing the roadway at a time when vehicles are approaching will not simply walk in front of oncoming vehicles. Therefore, the mere fact that this defendant failed to take action as the pedestrian crossed the curb lane does not establish a departure from the standard of care expected in the circumstances.

Finally, Keenan J. sitting on appeal in R. v. Ashton [1985] O.J. No. 1795 (Ont. Dist. Ct.) rejected the Appellant/Crown's submission that a fact in support of a finding of careless driving was that the Respondent was driving a motorcycle which killed one human being and seriously injured another. The position reflected a fundamental misconception of the principles of liability. It was the wrongful act or omission of the offender which rendered him or her liable, not the unhappy result.

[91] As well, in R. v. McIver, [1965] O.J. No. 998, Mackay J.A. recognized that an accused motorist can show an absence of negligence as a defence to careless driving by proving on a balance of probabilities that the accused motorist's impugned driving conduct had been caused by a mechanical failure or other circumstance that they could not have reasonably foreseen:

On a charge laid under s. 60 [now s. 130] of the Highway Traffic Act, it is open to the accused as a defence, to show an absence of negligence on his part. For example, that his conduct was caused by the negligence of some other person, or by showing that the cause was a mechanical failure, or other circumstance, that he could not reasonable have forseen. … It is in accord with principle to assume that the standard of proof to be attained by D is on the balance of probability only. Nevertheless, even if D fails in this endeavour, there cannot be a conviction unless P has proved his case beyond reasonable doubt.

[92] Moreover, Fontana J. at para. 14 in R. v. Pyszko, [1998] O.J. No. 1218 (Ont. Ct. (Prov. Div.)), explained that the holding in R. v. Beauchamp had been modified by the Court of Appeal in R. v. McIver, in which the onus to demonstrate that the impugned act had been done without negligence or fault as a defence to careless driving, had been shifted to the accused motorist:

I am of the view that Beauchamp is modified by McIver which is later in time. McIver, in my view has the effect of shifting the onus to the accused to demonstrate that the act was done without negligence or fault.

[93] Furthermore, in R. v. Skorput (1992), 72 C.C.C. (3d) 294, MacDonnell J. (as he was then) held that in order to establish a prima facie case of careless driving sufficient to convict an accused motorist who elects to present no evidence, the prosecution must prove beyond a reasonable doubt that the accused motorist's driving conduct is a departure from the standard of care of a motorist exercising ordinary care. Moreover, MacDonnell J. also confirmed that the onus on an accused motorist to establish an absence of negligence or fault only arises once the Crown establishes a prima facie case:

Careless driving is a regulatory offence as that term is understood in light of Sault Ste. Marie and Wholesale Travel. As was stated above, in the prosecution of a regulatory offence the Crown ordinarily establishes a prima facie case upon proving that the defendant committed the actus reus of the offence. At that point, the burden of showing that reasonable care was taken shifts to the defendant. However, careless driving is somewhat of an anomaly in that the failure to take reasonable care is part of the actus reus of the offence. In R. v. Beauchamp (1953), 106 C.C.C. 6, at page 13, the Ontario Court of Appeal stated that the test of careless driving is:

...not whether, if the accused had used greater care or skill, the accident would not have happened. It is whether it is proved beyond reasonable doubt that the accused, in light of the existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances.

To establish a prima facie case of careless driving, sufficient to convict a defendant who elects to present no evidence, the prosecution must establish beyond a reasonable doubt a departure from a standard of care. The onus of establishing an absence of negligence only arises once the Crown establishes a prima facie case.

[94] As well, in determining whether the offence of careless driving has been committed by an accused, the impugned driving must be shown by the prosecution to depart from the standard of care that a reasonably prudent motorist would have exhibited in the same circumstances that had confronted the accused motorist and which is also deserving of punishment: R. v. Wilson, [1971] 1 O.R. 349. Hence, proof of mere negligent driving does not necessarily equate to the offence of careless driving, unless it is deserving of punishment.

[95] Moreover, as this court explained at paras. 213 to 214 in R. v. Jackson, 2010 ONCJ 487 (O.C.J.), the analysis to be used in determining whether the accused motorist should be convicted of committing the strict liability offence contained in section 130 requires a two-stage inquiry, where it has to be first determined whether the Crown has proven beyond a reasonable doubt that the accused motorist committed the actus reus of the offence. And, if the Crown meets its burden, then the second stage of the inquiry is undertaken to determine if the accused motorist has proven they exercised due diligence on the balance of probabilities by either showing that they had taken all reasonable care for the circumstances to avoid committing the offence or that they had acted under a reasonable mistaken set of facts, if believed, would make committing the prohibited act innocent:

Hence, the distinctive feature of strict liability offences in comparison to the mens rea or absolute liability category of offences is that there is a two-stage inquiry for determining whether the defendant has committed the strict liability offence in question. The prosecution in the first stage of the inquiry for this proceeding is required to prove beyond a reasonable doubt that the defendant has committed the prohibited act … If the prosecution fulfils its burden of proof, then in the second stage of the inquiry the defendant has the onus to prove on a balance of probabilities the defence of due diligence or that he had not been negligent or at fault in committing the prohibited act, in order to be acquitted of the offence.

Despite the tragic consequences, it must be kept in mind that a trier of fact does not consider or decide by emotion, but must impassionately and soberly consider all the admissible evidence and testimony and to properly apply it to the relevant law in deciding whether the defendant has committed the offence … beyond a reasonable doubt and in determining whether the defendant has also met his burden of proving that he had not been at fault or negligent in his conduct, so as to be acquitted of the offence for this particular category of offence that allows for a due diligence defence.

[96] Also, as expounded by this court in R. v. Cianchino, [2010] O.J. No. 3162 (O.C.J.), at para. 91, it is useful in careless driving cases to use a risk analysis framework, which involves differentiating between risk assessment and risk management for the two-stage inquiry that is used to determine whether an accused has committed the offence of careless driving. This framework had been developed and explained by Todd Archibald, Kenneth Jull, and Kent Roach in their textbook, "Regulatory And Corporate Liability: From Due Diligence To Risk Management" (Aurora, Ontario: Canada Law Book Inc., 2007). In addition, at pp. 4-14.1 to 4-15 of their tome, the three authors equated the two-stage inquiry for strict liability offences as an assessment of the risk for the first stage of proving the actus reus of the offence and the management of that risk for the second stage to determine whether the defence of due diligence had been made out by the accused. Furthermore, where the actus reus of the offence requires proof of an accused's lack of reasonable care as an element of the offence, then the first stage of the inquiry requires the court to assess the risk and foreseeability of the harm that could result from the accused's impugned conduct, as well as the accused's awareness of the risk of harm that their conduct would create, in deciding whether the actus reus of the offence has been committed beyond a reasonable doubt; while for the second stage of the inquiry where the accused has the onus to prove they exercised due diligence on a balance of probabilities to avoid being convicted, the trier is required to assess the accused's efforts in the management of that risk of harm in order to determine whether the accused had taken all reasonable care in the circumstances:

The concept of due diligence might appear to create a paradox at first sight. If the prosecution has proven that the actus reus has occurred beyond a reasonable doubt, how can the defence prove that reasonable steps were taken to avoid that very event or any foreseeable harm? As first blush, due diligence appears to undercut the risk assessment inherent in the actus reus. If one is committed to the values underlying the codification of these standards in the first place, it seems counter-intuitive to now engage in a discussion of their permissible failure. For example, for an environmentalist, it seems wrong to acquit a corporation for permitting a discharge that impairs the environment.

The resolution of this apparent paradox lies in distinguishing between risk assessment and risk management. Risk assessment is central to the codified standards that the prosecution must prove were violated, when the focus shifts to due diligence, the issue relates to fault and punishment. Should an organization or individual be punished for their failure to maintain the codified standards in this particular case? Here the emphasis is on risk management. It is possible that a failure to maintain standards is excusable in all the circumstances when put in a larger context. This is unique to the two-staged element of due diligence.

[97] Furthermore, in their textbook, "Regulatory And Corporate Liability: From Due Diligence To Risk Management", at p. I-3, the authors explained that proof is required of whether the standard of care required to prevent the harm has been met by the accused person but that proof of actual harm is not required in order to prove a breach of the regulation:

Many regulatory offences do not require actual harm but, rather, are based on a threshold standard of care designed to prevent harm.

(A) FIRST STAGE OF THE INQUIRY FOR A STRICT LIABILITY OFFENCE: HAS THE PROSECUTION PROVEN THE ACTUS REUS OF THE OFFENCE BEYOND A REASONABLE DOUBT?

[98] The prosecution at trial had presented the testimony of Michelle Simon, Kinsley Henry, and Cst. George to prove the defendant had driven without due care and attention or without reasonable consideration for other persons using the highway, and that the defendant's particular driving conduct had departed from the standard of care which a reasonable and prudent motorist would have exercised in the same circumstances.

[99] In addition, the prosecution submits that the evidence which infers that the defendant had not been driving at the slower speed of 42 to 44 k.p.h. that the defendant had said he had been driving at, but that the defendant had been driving at a much higher speed just before the collision is based on the significant amount of visible damage that had been done to the defendant's vehicle when it had collided with the Simon vehicle.

[100] Furthermore, the defendant's testimony contradicts the testimony of both Michelle Simon and Kingsley Henry. The defendant had testified that the Simon vehicle had entered the intersection of a green light and then abruptly stopped on the pedestrian crosswalk that is located just east of the stop line when the traffic light and changed from green to yellow, and that it was this unexpected and abrupt stop by the Simon vehicle that had prevented the defendant from being able to stop his vehicle in time on the slippery and wet road surface while he had only been driving at the lower speed of 42 to 44 k.p.h. in a 60 k.p.h. zone. However, Michelle Simon had said she had not abruptly stopped her vehicle, but had gradually slowed and stopped her vehicle for the yellow light when she saw the traffic light for her change from green to yellow when she was about four to five car lengths from the intersection. In corroborating Simon's testimony, Kingsley Henry, who had been driving in the same curb lane as the Simon's vehicle and the defendant's vehicle eastbound on Sandalwood Parkway East and had been driving five car lengths immediately behind the defendant's vehicle, had testified that the Simon vehicle had not abruptly stopped, but had stopped gradually for a yellow light, and that the Simon vehicle had come to a full stop before the intersection when the light had changed from yellow to red, and that the Simon vehicle had been hit by the defendant's vehicle and then pushed several feet past the stop line into the intersection.

[101] Ergo, because the defendant's testimony is inconsistent with and contradicts the testimony of both Michelle Simon and Kinsley Henry, then the key issue in determining whether the prosecution has proven the defendant had committed the offence of careless driving beyond a reasonable doubt will depend on the credibility of the witnesses who had testified at trial.

(1) Credibility And Reliability Of The Witnesses' Observations And Testimony

[102] As indicated, the outcome of this trial will come down to credible and reliable testimony. For a trier of fact, it is a challenging task to assess the credibility of a particular witness or to determine the veracity of the witness's account of an event. However, courts have tried to lessen this difficulty by developing a rational approach for assessing credibility and the veracity of that specific account. One such approach for assessing the veracity of an account or version of an event was adopted by Schroeder J.A. of the Ontario Court of Appeal, at para. 22, in Phillips et al. v. Ford Motor Co. of Canada Ltd. et al., [1971] 2 O.R. 637, and from the reasoning in Faryna v. Chorny, [1952] 2 D.L.R. 354, that had based the assessment of the truth of a witness's account on its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions:

… While credibility is one test to be applied in the evaluation of testimony, it is by no means the only test, nor is it, in all cases, the most significant one. That is especially so in the present case in which there is such an enormous volume of unanswered opinion evidence given by highly reputable and well-qualified witnesses against which the plaintiffs' evidence must be weighed. One of the most enlightened guides on this aspect of a trial Judge's functions appears in a judgment of the late O'Halloran, J.A., delivered in the British Columbia Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 354. What the learned Jurist there stated is so apposite in the present case that I feel impelled to quote the following extract from his reasons which appear at pp. 356-8:

If a trial Judge's finding on credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.

[103] In addition, whether a witness has given credible testimony can be tested through cross-examination and assessed on inconsistent, incredible, and plausible testimony. In Faryna v. Chorny, [1952] 2 D.L.R. 354, at paras. 10 to 12, the British Columbia Court of Appeal mentioned that the real test for assessing the truth of the story from a witness, who has an interest in the outcome of the trial, will depend on its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions:

If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can he tested in the particular case.

[104] Therefore, in considering whether particular aspects of a witness's testimony is to be believed, those aspects must accord with the preponderance of probabilities, which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[105] Moreover, in their textbook, The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011), authors Paciocco and Steusser, at pp. 32 and 33, in their discussion about the believability of evidence and the difference between the meaning of reliability and the credibility of a witness's evidence, have succinctly explained that credibility refers to the honesty of the witness, while reliability describes the accuracy of evidence. Moreover, they emphasize that evidence which shows that a witness has been corrupted, has a motive to mislead, or has discreditable character will be relevant to credibility. And, they further explain that reliability is affected by a witness's ability to properly observe, to properly recall, and to properly communicate their observations of an event:

Assume a witness testifies that the robber with the gun was the person with a face tattoo of a stream of tears. If the trier of fact is concerned that the witness may be lying, or may be mistaken about this, the evidence may be given little if any weight. Believability affects weight.

When deciding whether evidence is believable, legal theory draws a helpful distinction between "credibility" and "reliability." "Credibility" is about the honesty of the witness. Evidence showing that a witness has been corrupted, has a motive to mislead, or has a discreditable character will be relevant to credibility. For example, evidence that the witness identifying the robber was an accomplice who has made a deal with the police could cause a trier of fact to give the testimony little weight.

"Reliability" is the term used to describe the accuracy of evidence. It can relate to the accuracy of a scientific or forensic process, but when applied to witnesses, reliability captures the kinds of things that can cause even an honest witness to provide inaccurate information. The reliability of witness testimony can be affected, for example, by (1) inaccurate observations, (2) memory problems, or (3) a failure by the witness to communicate observations accurately. Our witness may, for example, have been too far from the scene to conclude dependably that it was the tattooed man who held the gun, or he may not recall sufficient details of the event to instill confidence that he is right about this. Although credible, his evidence will be given little weight because it is unreliable.

[106] Also, in R. v. Jaquot, [2010] N.S.J. No. 108 (N.S.P.C.), Tax J. had illustrated how to assess the credibility and reliability of a witness's testimony by considering and assessing the particular witness's testimony with other testimony. Furthermore, Tax J. had explained, at para. 40, that there are many tools for assessing the credibility and reliability of testimony, such as considering inconsistencies with previous statements or testimony at trial with independent evidence which has been accepted; assessing the partiality of witnesses due to kinship, hostility or self-interest; considering the capacity of the witness to relate their testimony, that is, their ability to observe, remember and communicate the details of their testimony; and considering the contradictory evidence as well as the overall sense of the evidence and when common sense is applied to the testimony, whether it suggests that the evidence is impossible or highly improbable:

There are many tools for assessing the credibility and reliability of testimony. First, there is the ability to consider inconsistencies with previous statements or testimony at trial and with independent evidence which has been accepted by me. Second, I can assess the partiality of witnesses due to kinship, hostility or self-interest. Where an accused person testifies this factor must be disregarded insofar as his or her testimony is concerned, as it affects every accused in an obvious way, and may have the effect of reversing the onus of proof. Third, I can consider the capacity of the witness to relate their testimony, that is, their ability to observe, remember and communicate the details of their testimony. Fourth, I can consider the contradictory evidence as well as the overall sense of the evidence and when common sense is applied to the testimony, whether it suggests that the evidence is impossible or highly improbable

[107] Furthermore, in Novak Estate (Re), [2008] N.S.J. No. 426 (N.S.S.C.), Warner J., at paras. 36 and 37, summarized some of the judicial tools that could be used for assessing credibility:

There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness's testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness's testimony.

c) The ability to assess whether the witness's testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, [1951] B.C.J. No. 152, it is "in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions", but in doing so I am required not to rely on false or frail assumptions about human behavior.

d) It is possible to rely upon the demeanor of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, [2002] N.S.J. No. 349, 2002 NSCA 99, paras. 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. (R. v. J.H., [2005] O.J. No. 39, paras. 51-56).

There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence. (See R. v. D.R., [1996] 2 S.C.R. 291 at para. 93 and R. v. J.H., supra).

[108] And, in R. v. Comer, [2006] N.S.J. No. 291 (N.S.S.C.), the Nova Scotia Supreme Court, at paras. 96 to 98, summarized various human factors that could be considered in weighing the testimony of witnesses which may affect the giving of perfectly honest evidence:

In weighing the testimony of the witnesses I am obliged to consider human factors which may affect the giving of perfectly honest evidence. These factors may be phrased in the form of the following questions: (1) Did the witness have any particular reason to assist him or her in recalling the precise event that he or she attempted to describe? (2) Could the witness, because of the turmoil surrounding the event at the time it occurred, have been easily or understandably in error as to detail, or even as to the time of the occurrence? (3) What real opportunity did the witness have to observe the event? Where was he or she when the event happened? Was it a situation of panic or a relatively calm period and how would that affect recollection? If the witness's recollection was recorded when were the notes made? (4) Did the witness have any interest in the outcome of the trial or any motive for either favouring or injuring one side or the other or was the witness's evidence entirely independent? (5) What was the memory capacity of the witness? What was the appearance and demeanor of the witness in the witness box? Was the witness forthright and responsive to questions or was the witness evasive and hesitant? Was the witness argumentative? (6) Was the witness's testimony reasonable and consistent within itself and with the uncontradicted facts.

I am not bound either to decide an issue in conformity with the testimony of the largest number of witnesses if it does not prove convincing to the mind either itself or as against the declarations and testimony of a smaller number of witnesses or other evidence which appeals to the mind with more convincing force. The testimony of any one witness who is found to be believable and credible is sufficient for the proof of any fact that must be established beyond a reasonable doubt.

In finding the facts in this case the whole of the evidence must be considered and weighed. There are no facts until certain evidence is accepted as believable, as credible, as truthful.

[109] Also, in R. v. White, [1947] S.C.J. No. 10, Estey J. noted that the issue of credibility is one of fact which cannot be determined by following a set of rules suggested to have the force of law:

The issue of credibility is one of fact and cannot be determined by following a set of rules that it is suggested have the force of law and, in so far as the language of Mr. Justice Beck may be so construed, it cannot be supported upon the authorities. Anglin J. (later Chief Justice) in speaking of credibility stated:

by that I understand not merely the appreciation of the witnesses' desire to be truthful but also of their opportunities of knowledge and powers of observation, judgment and memory - in a word, the trustworthiness of their testimony, which may have depended very largely on their demeanour in the witness box and their manner in giving evidence. [Reymond v. Township of Bosanquet (1919), 59 Can. S.C.R. 452, at 460.].

The foregoing is a general statement and does not purport to be exhaustive. Eminent judges have from time to time indicated certain guides that have been of the greatest assistance, but so far as I have been able to find there has never been an effort made to indicate all the possible factors that might enter into the determination. It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity and intelligence of the witness, his powers to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biassed, reticent and evasive. All these questions and others may be answered from the observation of the witness's general conduct and demeanour in determining the question of credibility.

(a) Michelle Simon's Credibility

[110] Michelle Simon has been a credible and sincere witness. Her testimony had been consistent, had held up under cross-examination, and had not been exaggerated. In addition, her testimony had also been corroborated by the testimony of Kingsley Henry, who was an independent witness.

(b) Kingsley Henry's Credibility

[111] Kingsley Henry's testimony has also been a coherent, credible, and sincere. His testimony had also held up under cross-examination and had been for the most part consistent with Michelle Simon's testimony.

[112] The only inconsistency between Henry's testimony and Michelle Simon's testimony is that Henry had testified that he did not see any vehicles driving through the intersection on a yellow light, while Michelle Simon had testified that a white pickup truck driving in the left lane beside her lane had driven through the intersection on the same yellow light that Simon had slowed down and stopped for.

[113] However, this inconsistency in which Michelle Simon had said that she had observed a white pickup truck in the left lane beside the Simon vehicle driving through the yellow light at the same time she had been slowing and stopping for the yellow light, while Kingsley Henry had testified that he did not see any vehicles driving through the intersection on a yellow light is not a significant inconsistency that would undermine or diminish the credibility of either Michelle Simon's or Kinsley Henry's testimony. Especially, as the existence of a white truck going through the intersection on a yellow light is not related to an essential element of the offence, which has to be proven by the prosecution. In addition, Henry had been driving in the curb lane behind both the Simon vehicle and the defendant's vehicle and not in the left lane where the white pickup truck would have been driving nor in the same lane where Henry's attention would mostly have been focused on and where Henry's attention would have been on the colour of the traffic light that he was approaching and on the vehicle directly in front of him that had made an abrupt stop and then collided with a vehicle that had slowed and gradually stopped for a yellow light. As such, it would not be uncommon or odd for Henry not to have either noticed the white pickup truck in the left in line beside the Simon vehicle, which would have been approximately 10 car lengths in front and to the left of Henry's vehicle or that he would be able to recall the existence of the white pickup truck, since the white pickup truck would not have been involved in the collision and would not have been driving in the same curb lane where Henry had been driving in.

[114] Furthermore, in R. v. Stewart, [1994] O.J. No. 811, the Ontario Court of Appeal had considered the British Columbia Court of Appeal's holding in R. v. B. (R.W.) (1993), 40 W.A.C. 1, in regards to how to deal with the situation when there are minor inconsistencies in a witness's testimony with the testimony of other witnesses. In that situation, the British Columbia Court of Appeal had explained that minor inconsistencies do not necessarily undermine or diminish the credibility of a witness unduly, but that a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence. On the other hand, the British Columbia Court of Appeal had held there is no rule as to when, in the face of inconsistency, such doubt may arise, but at the very least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness's evidence is reliable:

In R. v. B. (R.W.) (1993), 40 W.A.C. 1 (B.C.C.A.), the court found that the trial judge erred in placing too much weight on the complainant's apparent lack of motive to lie. The case is factually quite similar to our case in that the accused was charged with sexually touching a 12-year-old complainant, the niece of his common law wife, while she slept over at his house. The Crown at trial advanced the theory that the complainant had no motive to lie as she enjoyed being with the accused's children and using their swimming pool yet, as a result of the criminal allegations, she was no longer welcome at his house. In his reasons the trial judge stated:

[T]he evidence of the young woman involved, the complainant, was convincing. I had the greatest of difficulty in conceiving why she would make the accusations that she has under these circumstances. And indeed, the witnesses called on behalf of the accused and the accused himself was frank to say that he could conceive of no reason and that it's a question that one normally poses, given the circumstances, that this is a family affair.

The Court of Appeal set aside the conviction and ordered a new trial. Rowles J.A., writing for the court, stated:

It does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Whether a witness has a motive to lie is one factor which may be considered in assessing the credibility of a witness, but it is not the only factor to be considered. Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented.

In this case there were a number of inconsistencies in the complainant's own evidence and a number of inconsistencies between the complainant's evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness's evidence is reliable. This is particularly so when there is no supporting evidence on the central issue, which was the case here.

(Emphasis added)

[115] Therefore, the inconsistency between Michelle Simon's testimony about a white pick-up truck driving in the left lane going through the yellow light at the intersection while Simon had been slowing down and stopping for that same yellow light and Kingsley Henry's testimony that he did not observe any vehicles going through the intersection on a yellow light is a minor inconsistency that does not undermine or diminish the credibility of Michelle Simon's testimony, nor does it diminish the credibility of Kinsley Henry's testimony.

(c) Cst. George's Credibility

[116] Cst. George's testimony has been credible and had held up under cross-examination.

(d) The Defendant's Credibility

[117] In his defence to the careless driving charge, the defendant had testified that the KIA Sorrento SUV motor vehicle had entered the intersection on a green light, but had then suddenly stopped on the pedestrian crosswalk when the light had changed from green to yellow. And, because the roads had been slippery and wet, the defendant, who had been driving at about 42 to 44 k.p.h. for the last 15 seconds, had testified that he had to slam on his brakes and then skidded for four to five seconds over a distance of 10 to 11 meters and then hit the KIA Sorrento motor vehicle, but did not push it forward. In addition, because of the collision, the defendant's vehicle was significantly damaged, which can be observed in the photographs entered as Exhibit #1 that had been taken of the two vehicles involved in the collision immediately after the collision had occurred.

[118] However, the defendant's testimony has been contradicted by the testimony of both Michelle Simon, who was the driver of the vehicle rear-ended by the defendant's vehicle, and Kingsley Henry, who was an independent witness that had been driving immediately behind the defendant's vehicle in the same curb lane on eastbound Sandalwood Parkway East.

[119] And, before deciding on the credibility of the defendant's testimony, it cannot be overlooked that the defendant's testimony had been given through the interpretation of an Arabic language interpreter. As such, considerable care must be given in evaluating the defendant's testimony, which has been provided through an interpreter, before concluding whether the defendant's testimony had lacked credibility on the basis of inconsistencies. In R. v. A.F., 2010 ONSC 5824, [2010] O.J. No. 4564, at para. 87, Hill J. noted that a court should not be too quick to devalue a witness's testimony on the basis of perceived inconsistencies where the evidence has been given through the filter of a court interpreter, especially when it is more difficult for a trier of fact to assess the credibility of such translated evidence. Moreover, he also emphasized that in the determination of credibility a court should not microscopically examine translated testimony for inconsistencies:

Where evidence is received through the filter of a court interpreter transferring testimony from the source language of a witness to the target language of the proceedings, the court should not be too quick to devalue the witness's evidence on the basis of perceived inconsistencies: R. v. Tran (1994), 92 C.C.C. (3d) 218 at 248 ("... the courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies. The benefit of a doubt should be given to the witness ..."); Sopinka, Lederman & Bryant, The Law of Evidence in Canada (2nd ed.) (Toronto: Butterworths, 1999), at s. 16.25 ("It is much more difficult to assess the credibility of evidence given through an interpreter").

[120] With that in mind, the defendant has nonetheless not been a credible witness. This is due to the defendant's testimony being implausible, and internally and externally inconsistent, and in being contradicted by the credible testimony of the independent witness, Kingsley Henry, and by the credible testimony of Michelle Simon. The defendant's lack of credibility is also due to his utterances and statements that he had excitedly uttered to Michelle Simon immediately after the collision on December 12, 2015, which shows the defendant's state of mind just before the collision.

[121] Accordingly, these inconsistencies, implausibilities, and contradictions have undermined the defendant's credibility and have diminished the weight to be placed on his testimony as to the reason why he had to slam on his brakes and then skid into the back of the KIA Sorrento SUV motor vehicle, which consists of his testimony that the Kia Sorrento vehicle had entered the intersection on a green light and then unexpectedly and abruptly stopped over the pedestrian crosswalk because the light had changed from green to yellow, which had been at the point when half of the Simon vehicle had already crossed onto the pedestrian crosswalk.

[122] More important, the defendant's testimony does not create reasonable doubt that the defendant did not commit the offence of careless driving.

(2) The Fact That A Collision Had Occurred Between Two Motor Vehicles Is Not Necessarily Evidence Of Careless Driving

[122] The evidence shows that the defendant's vehicle had collided into the rear bumper of the dark-grey KIA Sorrento SUV motor vehicle when the KIA Sorrento vehicle had stopped for a yellow light.

[123] The accident itself, depending on the circumstances, may infer the defendant had been driving without due care or attention or without reasonable consideration for other persons using the highway, but as MacDonnell J. (as he was then) indicated in R. v. Skorput (1992), 72 C.C.C. (3d) 294, the existence of an accident involving a motor vehicle does not necessarily infer there has been careless driving on the part of the driver:

Those remarks affirm that the 'prohibited act' which the Crown must prove in order to establish a prima facie case of careless driving is not the mere fact of an accident but rather the conduct defined in what is now s. 111 [now s. 130] of the Highway Traffic Act. In substance, the Crown must prove a departure from a standard of care. It is only when that is proved that an onus shifts to the defendant to show that he was not negligent. In McIver, McKay J.A. accepted as correct the proposition that the defendant bears the burden of establishing his 'defence' of lack of negligence or fault on a balance of probabilities. However, he also adopted the submission that even if the defendant fails to establish lack of negligence there could not be a conviction unless the prosecution proved its case beyond reasonable doubt. In many cases of careless driving, the effect of this will be to make the onus on the accused to establish due diligence academic. If the prosecution's case is that the defendant's driving demonstrated an absence of due care and attention, and the defence is that the defendant was being reasonably careful - i.e. that he was not negligent - any defence evidence which raises a reasonable doubt as to that issue will produce an acquittal. In that event, it would be a moot question whether the defence of due diligence was proved on a balance of probabilities.

(3) Relevant Circumstances Or Factors To Consider

[124] Also, in deciding whether the prosecution has met its burden in proving the defendant has committed the actus reus of the offence of careless driving, the relevant circumstances surrounding the event that occurred at 10:54 a.m. on December 12, 2015, on Sandalwood Parkway East would have to be assessed. Such factors or circumstances include visibility, road conditions, weather conditions, the nature of the road, lighting conditions, volume of traffic, and other relevant conditions that could affect the driving ability of motorists.

(a) Weather conditions

[125] At the time of the collision at 10:54 a.m. on December 12, 2015, the roads had been still wet due to an earlier rainfall.

(b) Lighting conditions on Sandalwood Parkway East

[126] There is no evidence that the visibility had been poor or a factor at the time of the collision, which had occurred during daylight hours at approximately 10:54 a.m. on the morning of December 12, 2015.

(c) Conditions of the road surface in the eastbound lanes of Sandalwood Parkway East

[127] The four witnesses that had testified had said that the road had been wet. In addition, the defendant had testified that the road surface had not been icy.

[128] However, Cst. George, Michelle Simon, and the defendant did testify that the road was slippery. However, except for the defendant, no one else had difficulty stopping on the wet roads that morning. Moreover, Cst. George said he did not arrive at the intersection until about 11 minutes after the collision had occurred, so his opinion that the road had been slippery may not properly reflect what the road conditions had been at the time when the collision had actually occurred. In addition, Cst. George said he had no problems in stopping when he had been driving to the intersection at Sandalwood Parkway East and Sunforest Drive after he received the radio call about the motor vehicle collision, although he had been driving in the westbound lanes of Sandalwood Parkway East to get to the collision scene.

[129] Furthermore, because wet roads would cause a road to have to have less traction or less friction between the tires of a motor vehicle and the road surface, then depending on the amount and depth of the water on the road and the speed at which the defendant's vehicle had been travelling at over the wet road surface, those two factors together could prevent motorists from being able to stop there vehicles within the same distance that they could when the road surface is dry, and may require a longer distance to be able to come to a stop when the brakes of a motor vehicle are applied abruptly or suddenly.

[130] Consequently, the road surface of the eastbound lanes of Sandalwood Parkway East being wet would have obligated the defendant to have driven at a speed and at a distance behind the KIA Sorrento vehicle that would take into consideration the wet road surface and the potential that the stopping distance of his vehicle on the wet road surface could be longer than it would be on a dry road.

(d) The speed limit for Sandalwood Parkway East at the area of Sunforest Drive is 60 k.p.h.

[131] The testimony from Cst. George, Michelle Simon, and the defendant is that the speed limit for Sandalwood Parkway East at the intersection with Sunforest Drive is a posted 60 k.p.h. speed.

(e) Speed of defendant's vehicle just before the collision

[132] The defendant testified that because of the rain and the wet roads he been driving his vehicle at 42 to 44 k.p.h. and in the curb lane. He also said he had been driving his wife to her workplace and that he had not been in a hurry, and at the critical time, he had been driving below the posted speed limit of 60 k.p.h. for that particular part of Sandalwood Parkway East.

[133] However, the visible damage to the defendant's vehicle in Exhibit #1, namely the buckled front hood of the vehicle and from the credible evidence that the force or momentum from the impact of the collision had pushed the Simon vehicle past the stop line into the intersection is not consistent with a vehicle driving at the speed of 42 to 44 k.p.h. as indicated by the defendant. Contrastingly, the amount of damage that is visible on the defendant's vehicle would be more consistent with the defendant's vehicle travelling at a much higher speed that the defendant said he had been travelling at.

[134] In addition, Michelle Simon had said that before she had braked and slowed her vehicle to gradually stop for the yellow light, she had said that her vehicle had been travelling at a speed of approximately 50 to 60 k.p.h.

(f) Traffic conditions at the time of the collision

[135] The evidence adduced at trial is that the traffic had been light and that there had only been three or four vehicles going eastbound in the two eastbound lanes on Sandalwood Parkway East just before the collision had occurred.

(g) Traffic light at the intersection had been functioning properly at the time of the collision

[136] The traffic light for eastbound Sandalwood Parkway East at the Sunforest Drive intersection had been functioning properly at the time of the collision. This is based on the evidence from Michelle Simon, who did not see anything out of the ordinary for the traffic light she had approached at the intersection in question and from Cst. George, who had observed the traffic light for eastbound traffic cycle for more than three times and who said the light had been functioning properly during the time he had been at the accident scene. Cst. George also said the traffic light had cycled normally from green to yellow to red. In addition, there is no evidence that would indicate that the eastbound traffic light had not been functioning properly when the collision had occurred.

(4) The Defendant's Testimony On Key Points Had Been Self-Serving, Inconsistent, And Improbable

(a) The defendant contends the Simon vehicle had entered the intersection on a green light and that half of the Simon vehicle had been over the pedestrian crosswalk when the traffic light had changed to yellow and that the Simon vehicle had then stopped abruptly on the pedestrian crosswalk

[137] The defendant had testified that the Simon vehicle had passed the stop line on a green light and had entered the intersection and that when half of the Simon vehicle had been on the pedestrian crosswalk located just east of the stop line, the traffic light for eastbound Sandalwood Parkway East then changed from green to yellow and that the Simon vehicle had then unexpectedly and abruptly stopped over the pedestrian crosswalk.

[138] For this aspect of the defendant's testimony, the prosecution asks the court to reject this testimony for being incredulous, since the prosecution contends that the Simon vehicle would have had to stop almost instantaneously in order to stop on the pedestrian crosswalk when the light had supposedly turned from green to yellow when the first half of the Simon vehicle would have already been on the pedestrian crosswalk, considering that Michelle Simon said she had been driving at 50 to 60 k.p.h. before she applied the brakes to stop her car for the yellow light and considering that the defendant's vehicle could not come to a safe stop when the defendant had abruptly slammed on his brakes and his vehicle had skidded for a distance of 10 to 11 meters for four to five seconds before it collided into the rear-end of the Simon vehicle, especially when the defendant's vehicle would have been driven on the same wet road surface as the Simon vehicle had been driving on and at the supposedly slower speed of 42 to 44 k.p.h.

[139] In other words, if the defendant's vehicle had skidded for 10 to 11 meters after abruptly slamming on the brakes at the vehicle speed of 42 to 44 k.p.h., then logically the Simon vehicle, which had been moving at a higher speed of 50 to 60 k.p.h. should have skidded more than 10 to 11 meters when the brakes on the Simon vehicle had been applied suddenly. However, the defendant had said that the Simon vehicle had been able to stop on the pedestrian crosswalk within a distance of half of the length of the Simon vehicle. Therefore, presuming that Michelle Simon's KIA Sorrento SUV motor vehicle is approximately 8 to 10 feet long, which is based on Simon's testimony that an average car length is about 8 to 10 feet long, then according to the defendant's testimony that the Simon vehicle had been able to still stop on the pedestrian crosswalk when the light changed from green to yellow at the moment when half of the Simon vehicle had crossed over the pedestrian crosswalk, then the Simon vehicle which had moving at a speed of 50 to 60 k.p.h. would have been able to stop in a distance of about five feet if the brakes on the Simon vehicle had been abruptly applied, as compared to the defendant's vehicle not being able to come to a safe stop when the defendant had to slam on his brakes and then skidded over a distance of about 30 to 33 feet (10 to 11 meters) from a moving speed of 42 to 44 k.p.h. before colliding into the rear of the Simon vehicle.

[140] Ergo, the defendant's testimony is not plausible or believable that half of the Simon vehicle had crossed onto the pedestrian crosswalk when the traffic light had changed from green to yellow and then the Simon vehicle abruptly stopping so that the rear half of the Simon vehicle had stopped on the pedestrian crosswalk and that the defendant's vehicle had not at all pushed the Simon vehicle forward in the collision.

[141] In addition, there had been no evidence adduced that there had been any hazard or anything else that would have caused the Simon vehicle to abruptly come to a stop, except for the defendant's claim that the Simon vehicle had abruptly stopped when the traffic light had changed from green to yellow after the Simon vehicle had already passed the stop line and been within the intersection.

[142] Moreover, the defendant's claim that the Simon vehicle had abruptly stopped after it had already entered the intersection on a green light would have also been inconsistent with the actions of a motorist with Michelle Simon's experience as a driver. Simon had testified that she has been driving since she was 16 years old and had at least 30 years driving experience. Certainly, someone with that much driving experience would know that entering an intersection on a green light would mean they are permitted to proceed through the intersection and if the light changed to yellow while they are already in the intersection, then they are permitted to clear the intersection and are not required to stop in the middle of the intersection for that yellow light. As such, there would have been no legal requirement or need for Simon to stop her vehicle abruptly if the light had turned yellow when she had already supposedly entered the intersection on a green light. More significantly, there had been no evidence that something had suddenly appeared in front of the Simon vehicle's path, which would have made Michelle Simon abruptly apply the brakes to her vehicle.

[143] In addition, Kingsley Henry, who had been driving directly behind both of the defendant's and Simon's vehicles in the same eastbound curb lane, had said that he had observed the Simon vehicle gradually stop for the yellow traffic light and that he not see the Simon vehicle make an abrupt stop. Henry also said that the Simon vehicle did not come to a full stop until the point when the yellow traffic light had changed to red and that the Simon vehicle had been stopped for half a second before the defendant's vehicle collided into the rear of the Simon vehicle and then pushed it forward past the stop line and into the intersection.

[144] Moreover, Michelle Simon had said that her vehicle had come to a stop before the intersection and that the defendant's vehicle after collided into the rear of her vehicle had pushed it several feet into the intersection.

[145] Ergo, the defendant's testimony contradicts both Michelle Simon's and Kingsley Henry's credible testimony which had been that the Simon vehicle had not made an abrupt stop, but had gradually slowed and stopped when the traffic light had changed to yellow and that the defendant's vehicle had pushed the Simon vehicle into the intersection during the collision. As such, the defendant's testimony that the Simon vehicle had entered the intersection on a green light and then abruptly stopped on the pedestrian crosswalk when the traffic light had changed from green to yellow at the point when the first half of the Simon vehicle had crossed onto the pedestrian crosswalk and that the defendant's vehicle did not at all push the Simon vehicle forward during the collision is not credible or believable. It also does not create any reasonable doubt that the defendant did not commit the offence of careless driving.

(b) The defendant contends the Simon vehicle had unexpectedly and suddenly stopped on the pedestrian crosswalk

[146] To reiterate, Michelle Simon said she applied had her brakes when the light turned yellow when she had been about four to five car lengths away from the intersection and that she had slowed and gradually stopped her vehicle before the intersection. This had been confirmed by the independent witness, Kingsley Henry, who had observed that the Simon vehicle did not make an abrupt stop, but had gradually slowed and had been stopped for half of a second before the defendant's vehicle had collided into the Simon vehicle.

[147] Moreover, if the defendant's vehicle and the Simon vehicle were traveling in the same eastbound curb lane and only four or five car lengths apart, then they would have both faced the same wet driving surface, yet there is no credible evidence that the Simon vehicle had skidded and screeched to a stop. The Simon vehicle also would not have been able to stop nearly instantaneously on the pedestrian crosswalk from a moving speed of 50 to 60 k.p.h. when the light had changed from green to yellow when half of the Simon vehicle had supposedly already crossed over the pedestrian crosswalk.

[148] It is also important to reiterate that if the Simon vehicle had suddenly and unexpectedly stopped as the defendant said it had, then why did the Simon vehicle not skid much further into the middle of the intersection instead of being able to stop on the pedestrian crosswalk only within a distance which measures about half of the length of the KIA Sorrento SUV motor vehicle. In other words, one would expect that the Kia Sorrento motor vehicle, which had been moving at 50 to 60 k.p.h. would have skidded more than 10 to 11 meters if Michelle Simon had to slam on her brakes to abruptly stop her vehicle on the wet road surface, considering that the defendant had said he had slammed on his vehicle's brakes on the wet road surface and that his vehicle had skidded 10 to 11 meters for four to five seconds when traveling only at 42 to 44 k.p.h. before colliding with the Simon vehicle. Even skidding for 10 to 11 meters (which is at least 30 to 33 feet) and then colliding into the Simon vehicle, the defendant's vehicle would have had to have travelled a distance of approximately three to four car lengths based on Simon's testimony that an average car length is about 8 to 10 feet. As such, the defendant's vehicle skidding for 10 to 11 meters would be six to eight times more than the distance of half of the approximate length of the KIA Sorrento SUV motor vehicle, which would support the prosecution's submission that it would be incredulous that the Simon vehicle could have stopped almost instantaneously on the pedestrian crosswalk.

[149] Therefore, the defendant's testimony about the Simon vehicle abruptly stopping over the pedestrian crosswalk when the traffic light had turned from green to yellow while half of the Simon vehicle had been already crossed over the pedestrian crosswalk is not plausible or believable.

(c) The defendant's vehicle had supposedly been moving at a speed of 42 to 44 k.p.h., which is a speed just slightly above the speed limit for a school zone, would imply that the defendant's vehicle could have stopped in a relatively short distance

[150] Again, if the defendant's vehicle had been travelling at the slower speed of 42 to 44 k.p.h. on Sandalwood Parkway East, which is only slightly above the school zone speed limit presently established at 40 k.p.h. [see City of Brampton By-Law No. 93-93, Schedule X (Rate of Speed), which sets the speed limit for school zones at 40 k.p.h. for the City of Brampton], then the defendant should have been able to safely stop his vehicle at a relatively short distance and without colliding into the vehicle that had been directly in his vehicle's path, if the road surface at the time had not been not icy or slippery, considering that the defendant had said he had been four or five car lengths behind the Simon vehicle when he had to slam on his brakes and considering that Michelle Simon had been able to slow and stop her vehicle gradually and safely before reaching the intersection from a moving speed of 50 to 60 k.p.h. on the same wet road surface, when she had normally applied on her brakes and when her vehicle had been four to five car lengths from the intersection.

[151] Furthermore, the defendant had testified that he had been driving at 42 to 44 k.p.h. in a posted 60 k.p.h. zone just before the collision had occurred and that he had known that had been the speed of his vehicle because he had looked at his speedometer just 15 seconds earlier.

[152] However, if the defendant had only been driving at 42 to 44 k.p.h., which is just slightly above the speed limit for a school zone, the significant damage that is actually visible on the defendant's Toyota Corolla motor vehicle (see Exhibit #1) would not be consistent with someone driving at that speed, but instead this significant visible damage on the defendant's vehicle would have been more consistent with someone driving at a much higher speed.

[153] Moreover, Michelle Simon said she had stopped her KIA Sorrento SUV motor vehicle before the stop line and had been pushed forward into the intersection a couple of feet. Hence, for the rear-end of the Simon vehicle to be pushed over the west boundary of the pedestrian crosswalk would mean that the Simon vehicle had been pushed a distance that would measure more than the length of the Simon vehicle, and would also mean that the Toyota Corolla would have had to hit the KIA Sorrento SUV motor vehicle at a significant speed in order to push the entire KIA Sorrento vehicle forward a distance of more than a vehicle length past the stop line and past the western boundary of the pedestrian crosswalk.

[154] Hence, the defendant's vehicle could not have been going at that slower speed of 42 to 44 k.p.h. when the defendant's vehicle had collided into the Simon vehicle that had slowed and then stopped for a yellow light because of the amount and severity of the damage that is visible on the defendant's vehicle and which can be seen in the photographs entered as Exhibit #1, and because the defendant's vehicle's momentum from skidding into the Simon vehicle had been able to push the stopped Simon vehicle forward over the stop line onto the pedestrian crosswalk.

(d) The defendant testified that his vehicle in the collision did not push the Simon vehicle at all forward

[155] In addition, the defendant's testimony that his vehicle did not push the Simon vehicle at all forward during the collision is not plausible or believable. Michelle Simon had said that her vehicle had been stopped when she heard screeching to her rear and then felt her vehicle being hit in the rear and then said her vehicle had been pushed forward a couple of feet into the intersection.

[156] On the other hand, the damage to the front of the defendant's vehicle is significant as can be observed on the photographs entered as Exhibit #1. Therefore, based on the resulting significant and visible damage on the defendant's vehicle would have to mean that the momentum of the defendant's vehicle colliding into the Simon vehicle would have pushed the Simon vehicle forward. This would be further confirmed by the fact that the defendant's vehicle had enough force and momentum for the front of the defendant's vehicle to have been able to go under the rear of the Simon vehicle in the collision. Moreover, the defendant's vehicle could not have simply bounced backwards and not push the Simon's vehicle forward, otherwise the front of the defendant's vehicle would not have been still touching the Simon vehicle and still be under the rear of the Simon vehicle when both vehicles had come to rest over the pedestrian crosswalk after the collision, and as can be seen in the photographs entered as Exhibit #1.

[157] Furthermore, an object in motion that collides with a similarly-sized stationary object would tend to push the stationary object forward and is analogous to the physical phenomenon of a moving billiard ball on a billiard table striking a stationary billiard ball directly on and moving that billiard ball forward because of the momentum or force from the moving billiard ball being transferred to the stationary billiard ball, which would cause the stationary billiard ball to move generally in the same direction that the moving billiard ball had been moving in.

[158] Ergo, since the Toyota Corolla motor vehicle and the KIA Sorrento SUV motor vehicle, as can be seen in the photographs entered as Exhibit #1, are not too disproportionate in size, so that the defendant's Toyota motor vehicle colliding into the stationary KIA Sorrento motor vehicle, and which had caused significant front end damage to the Toyota Corolla vehicle, would have had enough force or momentum to move the KIA Sorrento motor vehicle forward several feet into the intersection. Accordingly, the defendant's testimony that his vehicle did not push the Simon vehicle at all forward will be disregarded.

(e) The defendant said the road surface had been very slippery

[159] Although there was testimony from Cst. George, Michele Simon, and the defendant that the road was slippery because it had been wet from a recent rainfall, everyone else, except for the defendant, had been able to stop without any problems on the wet road surface at all intersections they had to stop at before they had reached the intersection of Sandalwood Parkway East and Sunforest Drive.

[160] However, motorists are required to adjust their driving for the traffic, lighting, road, and weather conditions, so that they can properly and adequately stop their vehicles when braking because the distance it would take a vehicle to safely stop would be affected and increased by such conditions as a wet or slippery road conditions. And, even though the defendant testified he had been driving at the slower speed of 42 to 44 k.p.h. in the curb lane to take into account the wet and slippery road surface, the significant damage that is visible on the defendant's vehicle and the momentum from the defendant's vehicle colliding into the Simon vehicle and then pushing the Simon vehicle forward into the intersection shows that the defendant had been driving at a much faster speed than he said he had been driving at.

[161] On the other hand, Michelle Simon said she had been able to slow and gradually stop her vehicle for a yellow light before the intersection when she had been four to five car lengths from the intersection when the traffic light had changed to yellow, and without difficulty on the wet road surface when her vehicle had been moving at 50 to 60 k.p.h.

[162] Furthermore, the evidence that Michelle Simon had heard screeching sound to her rear just before the collision had occurred would also indicate that the road surface had not been as slippery as had been indicated by the defendant.

(f) The sound of screeching tires would imply that the road surface had not been as slippery as portrayed by the defendant

[163] Undoubtedly, if the road surface had been very slippery as suggested by the defendant, then by inference there would have been less friction between the tires of the defendant's vehicle and the road surface as compared to when the road surface is dry, which would also likely mean there would have been virtually no screeching noise heard by anyone, as the screeching noise would come from the effect of the tires rubbing across the road surface and the friction between the tires and the road surface when the tires are locked by the brakes of the vehicle and unable to rotate because the brakes had been forcibly applied.

[164] Michelle Simon also said that just before her vehicle had been rear-ended by the defendant's vehicle she had heard the screeching sound to her rear, which is a sound that results from tires being rubbed across the road surface when the tires are locked from rotating when the brakes of the vehicle are applied forcibly in an attempt to stop the vehicle as quickly as possible from moving forward. The presence of the sound of screeching tires, which is made when tires are forcibly rubbed against the road surface, would imply the road surface is not as slippery as had been suggested by the defendant; otherwise a screeching sound of tires would not be produced if the road surface had been extremely slippery from being wet from a rainfall.

[165] In addition, the defendant had said he had slammed on his brakes and then his vehicle skidded for four to five seconds over a distance of 10 to 11 meters, which would also imply that his vehicle had been travelling at a higher rate of speed than the speed the defendant had said that his vehicle had been moving at.

[166] Furthermore, besides the defendant, no one else had testified that they had any problems with stopping their vehicles on the wet road that morning or at that intersection. As such, even though the road surface had been wet it may not been as slippery as the defendant had suggested it had been at the time of the collision.

(g) Why did the defendant not safely stop his vehicle for the yellow light?

[167] The defendant also said that he had read about the law on yellow traffic lights and said that the law states that a motorist has to stop for a yellow light if they can stop, but if they cannot stop then they can cross safely.

[168] The legal requirement referred to by the defendant for a motorist to stop for a yellow light is contained in section 144(15) of the HTA, which states that:

Every driver approaching a traffic control signal showing a circular amber indication and facing the indication shall stop his or her vehicle if he or she can do so safely, otherwise he or she may proceed with caution.

[169] This, therefore, begs the question that if the defendant had been four to five car lengths behind the Simon vehicle, and in which Michelle Simon had testified that her vehicle had been four to five car lengths from the intersection when the traffic light had changed from green to yellow, and that since the Simon vehicle had been able to gradually slow and stop before reaching the intersection from a speed of 50 to 60 k.p.h. for the yellow light without Michelle Simon having to abruptly apply her brakes, then why could the defendant not also slow and stop his vehicle for the yellow light, since the traffic light would have turned yellow when the defendant's vehicle would have been about 8 to 10 car lengths from the intersection and where the defendant's vehicle had been only moving at the speed 42 to 44 k.p.h., which is a speed much slower than the speed of 50 to 60 k.p.h. that the Simon vehicle had been moving at before it had gradually slowed and stopped for the yellow light?

[170] Furthermore, the defendant's testimony that the Simon vehicle had unexpectedly and suddenly stopped while already in the intersection is not plausible or believable, since it contradicts the credible testimony of Kingsley Henry, the independent witness who had been driving immediately behind the defendant's vehicle. Henry, who had said he had seen everything and who had been driving in the same curb lane as both the defendant and Michelle Simon, had said that the Simon vehicle had not abruptly stopped, but had gradually slowed and stopped for the yellow light, and that the defendant had slammed on his brakes at the "last second" and then skidded into the rear of the Simon vehicle and had pushed the Simon vehicle about half a car length over the stop line into the intersection.

[171] Thus, the only plausible inference that can be made as to why the defendant did not stop his vehicle safely for the yellow light when he had been approximately 8 to 10 car lengths from the intersection when the traffic light for eastbound traffic on Sandalwood Parkway East had changed from green to yellow is that he had not been driving with due care and attention, since the defendant had to slam on his brakes at the "last second" and then skidded into the rear of the Simon vehicle, considering that Michelle Simon had been able to slow and gradually stop her vehicle before reaching the intersection for that yellow light while driving on the same wet road surface and while moving at the higher speed of 50 to 60 k.p.h. and when her vehicle had been four to five car lengths from the intersection when the traffic light had turned yellow and without having to slam on her brakes, yet the defendant had been unable to himself safely come to a stop on the same wet road surface when he had been four to five car lengths behind the Simon vehicle when the traffic light had changed from green to yellow and when the red rear brake lights on the Simon vehicle had come on, which the defendant admitted to seeing going on, and when his vehicle had only been moving at 42 to 44 k.p.h. as compared to the Simon vehicle moving at 50 to 60 k.p.h.

(5) The Excited Or Spontaneous Utterances Or Statements Made By The Defendant To Michelle Simon Immediately After The Collision Had Occurred Would Go To His State Of Mind Just Before The Collision Had Occurred

[172] For the most part, utterances or statements made during a period of excitement or emotion have a cloak of reliability, which is based on the spontaneous making of the statement before there is time for concoction. In other words, an utterance made by someone involved in a motor vehicle accident immediately after the accident while still in an emotional or excited state and before the person has had a chance for reflection would be given in circumstances in which it would be reliable because the possibility of concoction in those circumstances can be disregarded.

[173] Furthermore, in the textbook, The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011), the authors, at pp. 178 and 179, explain that excited utterances have a cloak of reliability when the statement in question is made in response to an event where the possibility of concoction can be disregarded:

Fortunately, our courts have abandoned the "transaction" requirement and have returned to principle. The key principle is that the statement is made in response to an event where the possibility of concoction can be disregarded. In R. v. Clark, the Ontario Court of Appeal reversed Leland. The court admitted the statement of the victim, who cried out: "Help! Help! I've been murdered! I've been stabbed!" The court referred to the decision of the Privy Council in Ratten v. R. and cited the following as the correct statement of the law: [T]he test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded.

In R. v. Andrews the House of Lords went on to craft the following guidelines for trial judges when faced with applications to admit such evidence:

The primary question which the judge must ask himself is — can the possibility of concoction or distortion be disregarded?

To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection . . . .

In order for the statement to be sufficiently "spontaneous" it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.

Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion . . . .

As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error.

[174] As such, the utterances and statements, which the defendant had made to Michelle Simon shortly after the collision on December 12, 2015, and which go to his state of mind at that time of the accident or just before the collision had occurred, would be more reliable as compared to when the defendant had testified at trial on April 8, 2016, about what his state of mind had been before the collision occurred, since the defendant would have had less time to concoct a narrative immediately after the collision when the defendant would have made those utterances in an emotional or excited state. However, it is the sworn evidence given by the defendant at trial that has to be considered, while the prior inconsistent unsworn utterances or statements that the defendant had made to Michelle Simon would be considered in determining the defendant's credibility.

[175] In particular, Michelle Simon had testified that immediately after the collision the defendant had asked her why she had stopped to which Simon had replied that she had stopped for the yellow light. Simon then said the defendant had stated, "You heard me skid so why did you not go?"

[176] However, at trial the defendant testified that Michelle Simon's KIA Sorrento SUV motor vehicle, which was travelling immediately in front of him, had entered the intersection on a green light and that when half of the vehicle had been over the pedestrian crosswalk the traffic light had changed from green to yellow, so the Simon vehicle then had stopped suddenly on the pedestrian crosswalk where the rear of the Simon vehicle was now on the pedestrian crosswalk. This unexpected and sudden stop by the Simon vehicle, the defendant contends, then caused the defendant to slam on his brakes, which then caused his vehicle to skid into the rear of the KIA Sorrento vehicle. Moreover, the defendant said that his vehicle did not push the KIA Sorrento vehicle at all into the intersection.

[177] As such, the defendant contends that it had been because Michelle Simon, the driver of the KIA Sorrento SUV motor vehicle, did not stop in the right place or at the right time is the reason why he had stated to Michelle Simon, "Why did you stop while it was yellow and after your car had passed the pedestrian crosswalk?" However, the defendant did not testify as to what Michelle Simon's response had been to his supposed question about why she had stopped in the intersection for a yellow light after entering the intersection on a green light and after she had already passed the pedestrian crosswalk.

[178] Moreover, the defendant's contention that Simon had suddenly stopped her vehicle after she had entered the intersection on a green light because the traffic light had changed to yellow is inconsistent with the testimony of Michelle Simon and Kingsley Henry in which both had testified that the Simon vehicle had slowed for a yellow light and had gradually come to a stop before the intersection. Furthermore, Henry had said he had observed the Simon vehicle actually come to a full stop at the point when the traffic light had changed from yellow to red and that the Simon vehicle had been stopped for about half of a second when the defendant's vehicle collided into the rear of the Simon vehicle and then pushed it over the stop line into the intersection. The defendant's contention is also not reasonable since a motorist with Michelle Simon's driving experience of 30 years would not have suddenly stopped after entering the intersection on a green light, even after her traffic light turned to yellow, unless there had been something in front of the Simon vehicle that would have caused her to suddenly stop; especially, since the evidence in this trial indicates that the yellow light had a duration of six to seven seconds, which would have easily allowed the Simon vehicle to pass through the intersection without having to worry about traffic entering the intersection from the northbound and southbound lanes. However, there is no evidence that there had been anything directly in the path of the Simon vehicle that would have caused the Simon vehicle to suddenly stop within the intersection. As such, since there had been nothing that would have caused Simon to suddenly stop inside the intersection, then there would have been no reason for Simon to do so, except for the defendant's contention that the traffic light had changed from green to yellow while the Simon vehicle had been within the intersection.

[179] Furthermore, there is no evidence that the defendant had informed Cst. George during the collision investigation that the Simon vehicle had entered the intersection on a green light and then suddenly stopped on the pedestrian crosswalk, nor did he excitedly state that to Michelle Simon immediately after the collision that there had been no reason for Simon to suddenly stop her car after she had entered the intersection on a green light. On the other hand, Michelle Simon's testimony contradicts the defendant's testimony. Simon had said that she had slowed and gradually stopped her vehicle for a yellow light before reaching the intersection, which had also been confirmed by Kingsley Henry's testimony. Moreover, Michelle Simon had testified that the defendant had specifically asked why she had stopped and which Michelle Simon had replied she had stopped for the yellow light. Therefore, Michelle Simon's testimony that the defendant's utterance to her of asking her why she had stopped is more consistent with questioning why Simon had stopped for a yellow light instead of going through the intersection on a yellow light, than it would be for the contention that the Simon vehicle had entered on a green light and then had suddenly stopped on the pedestrian crosswalk for the traffic light changing from green to yellow.

[180] Accordingly, the defendant's testimony that he had asked Michelle Simon why she had stopped while the traffic light was yellow and after her car had passed the pedestrian crosswalk is not credible or believable and is inconsistent with Kingsley Henry's testimony that the Simon vehicle had slowed and gradually stopped for a yellow light before reaching the intersection and had been stopped for half of a second before the defendant had tried to stop his vehicle at the "last second" and then colliding into the Simon vehicle and pushing the Simon vehicle past the stop line into the intersection during the collision.

(6) Did The Prosecution Prove Beyond A Reasonable Doubt That The Defendant Has Committed the Actus Reus Of The Offence?

[181] Both Michelle Simon and the defendant were driving eastbound in the curb lane of Sandalwood Parkway East at approximately 10:54 a.m., approaching the intersection of Sunforest Drive. The eastbound lanes of Sandalwood Parkway East had been wet from an earlier rainfall. The defendant was driving immediately behind the Simon vehicle. Michelle Simon testified she had observed the traffic light at the intersection changed from a green to a yellow light so Simon had applied her brakes and gradually slowed her vehicle to stop it before it reached the stop line for eastbound traffic. The Simon vehicle had been stopped behind the stop line when Michelle Simon heard a screeching noise behind her and then felt the impact of being rear-ended by the vehicle driving behind her vehicle. Simon then said her vehicle was pushed several feet into the intersection by the vehicle that had just rear-ended her vehicle.

[182] The testimony from the independent witness Kingsley Henry, who had been driving at a distance of five car lengths immediately behind the defendant's vehicle and in the same curb lane of the two eastbound lanes of Sandalwood Parkway East as the defendant's vehicle, and who said he had seen everything, corroborates what Michelle Simon had said about slowing her vehicle and then gradually stopping for a yellow light and that she had not suddenly stopped her vehicle. Moreover, Henry said the defendant's vehicle did not appear to be slowing down to be able to stop in time, that the Simon vehicle had come to a full stop at the point when the traffic light had changed from yellow to red, and that the Simon vehicle had been stopped for about half a second when the defendant's vehicle suddenly braked at the "last second" and then skidded and collided into the rear of the Simon vehicle. More importantly, Henry said the defendant's vehicle in the collision had pushed the Simon vehicle past the stop line into the intersection.

[183] As such, the testimony from Michelle Simon and Kingsley Henry as to what had occurred prior to the defendant's vehicle colliding with the Simon vehicle is coherent, consistent, credible, and believable.

[184] On the other hand, the defendant's testimony that the Simon vehicle had entered the intersection on a green light and then when half of the Simon vehicle had just crossed over the pedestrian crosswalk that is located east of the stop line for eastbound traffic, the traffic light had changed from green to yellow which had caused the Simon vehicle to unexpectedly and abruptly come to stop on the pedestrian crosswalk; that the road surface was extremely slippery; that the defendant's vehicle had been only moving at 42 to 44 k.p.h. for the last 15 seconds; that he had to slam on his brakes and had skidded for four to five seconds for 11 meters and then collided into the rear of the Simon vehicle without pushing the Simon vehicle at all forward, is inconsistent with the testimony of the independent witness who had been directly behind the defendant's vehicle and who said he had seen everything happen. As had been determined and explained in more detail earlier, the defendant's testimony is self-serving, internally and externally inconsistent, as well as being implausible and not believable. As such, the defendant is not a credible witness and his testimony that the Simon vehicle had entered the intersection on a green light and then abruptly stopped on the pedestrian crosswalk when the light had changed from green to yellow and that the road surface was extremely slippery and that the defendant's vehicle had been only moving at 42 to 44 k.p.h. for the last 15 seconds and that his vehicle did not push at all the Simon vehicle into the intersection will be disregarded.

[185] Therefore, because the Simon vehicle had not entered the intersection on a green light but had slowed and gradually stopped for a yellow light before reaching the intersection; and because the Simon vehicle had not made an unexpected and abrupt stop, nor had the Simon vehicle come to a stop on the pedestrian crosswalk before it had been rear-ended by the defendant's vehicle; and because there is no evidence of any unexpected event or hazard in the road immediately in the path of the Simon vehicle that had caused the Simon vehicle to suddenly stop unexpectedly; and because both Michelle Simon and Kingsley Henry had been able to stop their vehicles without difficulty on the wet road surface of the eastbound lanes of Sandalwood Parkway East; and because the defendant had to slam on his brakes at the "last second" and then skidded into the rear of the Simon vehicle with such force that the front of the defendant's vehicle sustained significant damage and had also pushed the Simon vehicle passed the stop line into the intersection and onto the pedestrian crosswalk, would infer that the defendant's vehicle had to have been moving at a rate of speed faster than the 42 to 44 k.p.h. the defendant contends his vehicle had been doing just before the collision; and because the Simon vehicle had slowed gradually for a yellow light and then had come to a full stop when the traffic light had changed from yellow to red; and because the Simon vehicle had been stopped for about half of a second before the defendant's vehicle collided into the Simon vehicle, the prosecution has proven that the defendant's driving conduct fell below the standard of care that a reasonable and prudent motorist would have exhibited while driving in the same circumstances.

[186] As such, the prosecution has met its burden in proving beyond a reasonable doubt that the defendant has committed the actus reus of the careless driving offence of driving without due care and attention just before the defendant's vehicle collided with the Simon vehicle on December 12, 2015, at 10:54 a.m., in the eastbound lanes of Sandalwood Parkway East in the City of Brampton.

(B) SECOND STAGE OF THE INQUIRY FOR A STRICT LIABILITY OFFENCE: Has the defendant established the defence of due diligence on a balance of probabilities?

[187] Since the prosecution has met its burden of proving beyond a reasonable doubt that the defendant had committed the actus reus of the offence of careless driving set out in section 130 of the Highway Traffic Act, then the defendant in the second stage of the inquiry has the burden to prove on a balance of probabilities that he has made out the due diligence defence or that he was not negligent or at fault in committing the prohibited act if he wishes to escape being convicted of the offence.

[188] To make out the defence of due diligence, as outlined by the Supreme Court of Canada in R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353, requires the defendant to prove on a balance of probabilities that he had taken all reasonable steps in the circumstances to drive with due care and attention and with reasonable consideration for other persons using the highway, or that he had been operating under a mistaken set of facts, if true, would render his act innocent:

… there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. …

[189] In respect to demonstrating that he had taken all reasonable care for the circumstances to avoid the event, that he had not been negligent, or that he was free from fault, the defendant had testified that he had not been in a rush to drive his wife to work that morning, and that because of the wet and slippery roads he had been driving in the curb lane and driving at a speed of 42 to 44 k.p.h. in the eastbound lanes of Sandalwood Parkway East, which is below the speed limit of 60 k.p.h. for that section of the road. He also said the brakes on his vehicle had been working properly and that he had good tires on his vehicle.

[190] Furthermore, the defendant contends that the reason he had not been able to stop his vehicle from colliding into the rear of the Simon vehicle is that the Simon vehicle had entered the intersection on a green light and then had unexpectedly and suddenly stopped on the pedestrian crosswalk, which had caused him to slam on his vehicle's brakes on a wet and slippery road surface and that had also caused his vehicle to skid for four to five seconds over 10 to 11 meters into the rear of the Simon vehicle.

(1) Mistake Of Fact

[191] Under the mistake of fact branch of the due diligence defence, there is no evidence that the defendant had been operating under a mistake of fact, nor had the defendant raised such a defence.

(2) Has The Defendant Proven The Defence Of Due Diligence On A Balance Of Probabilities?

[192] Ordinary drivers do not normally run into the back of another motor vehicle that they are following if they are driving with due care and attention and driving according to the visibility, traffic, weather, and road conditions.

[193] Furthermore, reasonable and prudent drivers that are approaching an intersection controlled by automatic traffic lights that is showing a yellow light, would also not presume that that the driver of the car directly ahead of them would not stop for the yellow light as required by law, but speed up and drive into the intersection on a yellow light. Instead, a reasonable driver would expect that the driver of the vehicle would stop their vehicle for that yellow light as they are required to do under section 144(15) of the HTA.

[194] In addition, since Michelle Simon had been driving her vehicle at the speed of 50 to 60 k.p.h. when the traffic light for her had changed from green to yellow, and since she had been able to slow and gradually stop her vehicle for that yellow light without having to abruptly stop her vehicle on the wet road surface, then the defendant, who had also been facing that same yellow light, should have also been able to stop his vehicle safely on that wet road surface for that yellow light, if he had been driving with due care and attention and with the proper distance between his vehicle and the Simon vehicle. Especially, when the defendant said he had been driving four to five car lengths directly behind the Simon vehicle and that he had seen the red brake lights on the Simon vehicle go on. As well, since Michelle Simon had applied her brakes after seeing the traffic light change from a green light to a yellow light and that the Simon vehicle had slowed and gradually stopped for the yellow light, then the defendant should have also noticed that the Simon vehicle had been gradually decelerating for that yellow light when the brake lights on the Simon vehicle had come on. As such, a reasonable driver in the same circumstances would have been able to safely stop behind the Simon vehicle, since the Simon vehicle did not make an abrupt stop and the Simon vehicle had been able to gradually slow from a speed of 50 to 60 k.p.h. when the Simon vehicle had been four to five car lengths from the intersection when the traffic light turned to yellow and then safely stop for that yellow light before reaching the intersection.

[195] Moreover, when the traffic light for eastbound traffic on Sandalwood Parkway East had changed to yellow, then the defendant's vehicle would have been approximately 8 to 10 car lengths from the intersection, since the defendant had said he had been driving four to five car lengths behind the Simon vehicle. And, since the Simon vehicle had been able to slow and gradually stop before reaching the intersection from a speed of 50 to 60 k.p.h. over a distance of four to five car lengths on a wet road surface, then the defendant's vehicle with good tires and brakes should have also been able to slow and gradually stop his vehicle over a distance of four to five car lengths if the speed of the defendant's vehicle had been moving at 50 to 60 k.p.h. or less. However, since Kingsley Henry had observed the Simon vehicle slow and gradually stop for the yellow light and the defendant's vehicle abruptly braking at the "last second" and then colliding into the rear of the Simon vehicle, is proof beyond a reasonable doubt that the defendant had not been driving with due care and attention and that the defendant's driving had fallen below the standard of care that an reasonable driver would have exercised in the same circumstances.

[196] Therefore, the defendant has not met his burden in proving on a balance of probabilities that he had taken all reasonable care in the circumstances to avoid colliding into the rear of the Simon motor vehicle, and as such he has not met his burden of proving that he had exercised due diligence or that he was not negligent or not at fault in committing the prohibited act.

[197] Accordingly, the defendant is guilty beyond a reasonable doubt of committing the offence of careless driving.

4. DISPOSITION

[198] For the above reasons, the prosecution has proven beyond a reasonable doubt that Shant Papzyan is guilty of committing the offence of "careless driving", contrary to section 130 of the Highway Traffic Act, R.S.O 1990, c. H.8. A conviction will therefore be entered against Shant Papzyan.

Dated at the City of Brampton on August 25, 2016.

QUON J.P.

Ontario Court of Justice

IN THE MATTER OF THE HIGHWAY TRAFFIC ACT, R.S.O. 1990, c. H.8

CHARGE AND TRIAL INFORMATION

CASES CONSIDERED OR REFERRED TO

STATUTES, REGULATIONS, BYLAWS, AND RULES CITED

REFERENCE MATERIAL CITED