Court Information

Court: Ontario Court of Justice

Date: October 2, 2019

Court File No.: Regional Municipality of Durham 2860 5383537Z

Between:

Regional Municipality of Durham

— AND —

Stavros Katsikaris

Before: Justice of the Peace M. Coopersmith

Heard: June 13, 2019

Reasons for Judgment Released: October 2, 2019

Counsel

For the Prosecution: T. J. McKinnon

For the Defendant: Steven Katsikaris (agent for Stavros Katsikaris)

Judgment

JUSTICE OF THE PEACE COOPERSMITH:

I. Introduction

[1] On July 5, 2018, Stavros Katsikaris was charged with "turn not in safety" at the intersection of Thornton Road North and Adelaide Avenue West in Oshawa, contrary to subsection 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended ["HTA"].

[2] For the reasons that follow, I find Stavros Katsikaris guilty of the charge of 'turn not in safety', contrary to subsection 142(1) of the HTA.

II. Evidence of the Witnesses

(a) Evidence of Michael Lynch

[3] The trial commenced on June 13, 2019. The prosecution called upon four witnesses to give evidence: Michael Lynch, an independent eye witness, Tracey Giorgi, who was involved in the motor vehicle collision with the defendant, Durham Regional Police Officer Sean Aselton, who laid the charge against the defendant, and Durham Regional Police Officer Fraser Wannop, a Level 2 collision investigator. Stavros Katsikaris provided defence testimony.

[4] Before noon, on July 5, 2018, Michael Lynch witnessed a motor vehicle collision at the intersection of Thornton Road North and Adelaide Avenue West in Oshawa. That intersection is controlled by traffic control signals. Mr. Lynch believes Adelaide Avenue West has two eastbound lanes and two westbound lanes on the east side of Thornton, but only one lane in each direction on the west side. Thornton Road North has two northbound lanes and two southbound lanes.

[5] Mr. Lynch was proceeding in the left lane, northbound on Thornton Road North. He had stopped at a green light at the intersection with Adelaide Avenue West, first in line to make a left turn. A southbound silver-grey motor vehicle was stopped across the intersection on Thornton Road North, signalling to make a left turn to proceed eastbound onto Adelaide Avenue West.

[6] It was a sunny day and the roads were dry. Mr. Lynch was waiting for traffic to clear in the opposite direction, so that he could make his left turn. The traffic light facing Mr. Lynch was still green when the motor vehicle opposite him started to turn left and, at the same time, a black northbound motor vehicle, going at least the speed limit, passed Mr. Lynch in the right curb lane and proceeded straight through the intersection. That vehicle collided with the vehicle that was turning left.

[7] Once traffic had cleared, Mr. Lynch completed his left turn and found a safe place to stop. Two ambulances arrived at the scene. There was an older, grey-haired man driving the left-turning motor vehicle. Mr. Lynch has no recollection of the driver of the northbound vehicle. He had no conversation with drivers, except to ask if everyone was alright.

[8] There was no cross examination by defence.

(b) Evidence of Tracey Giorgi

[9] On July 5, 2018, at around 11 o'clock in the morning, Tracey Giorgi was involved in a motor vehicle collision at the intersection of Thornton Road and Adelaide Avenue in Oshawa. It was a sunny day and she had been driving her black Jeep Cherokee northbound on Thornton Road. The light at Adelaide Avenue was green and, as she approached that intersection, there was a vehicle in the left lane that was waiting to turn left. Consequently, Ms. Giorgi moved into the right lane to proceed straight through the intersection. A southbound truck, with a trailer attached had sufficient time to turn left in front of her. Nonetheless, she took her foot off the gas, just in case. When she was 10 to 15 feet from the intersection facing a green light, a minivan that had been proceeding southbound on Thornton Road turned left onto Adelaide Avenue without stopping to make sure the way was clear. Ms. Giorgi slammed on her brakes, but there was nothing she could do as the two vehicles collided. Her airbags went off and her motor vehicle was a write-off. Ms. Giorgi could not figure out why the driver of the southbound vehicle did not see her.

[10] Ms. Giorgi was taken to the hospital where she saw the driver of the other motor vehicle, but she did not speak with him. When she returned to the scene of the collision to retrieve a jug from her vehicle, she spoke with the police officer.

[11] There was no cross examination by the defence.

(c) Evidence of Durham Regional Police Officer Sean Aselton

[12] At approximately 11:28 a.m. on July 5, 2018, Durham Regional Police Officer Sean Aselton was dispatched to a motor vehicle collision at Thornton Road and Adelaide Avenue in Oshawa. Thornton Road has two northbound and two southbound lanes and Adelaide Avenue has two eastbound and two westbound lanes. The intersection is controlled by traffic control signals. Both Thornton Road and Adelaide Avenue are posted 60 kilometre per hour speed zones. It was a sunny day, the roads were dry and there was good visibility.

[13] Officer Aselton observed two motor vehicles facing eastbound on Adelaide Avenue, just east of the intersection at Thornton Road. There was significant damage to the passenger side of the Toyota Venza SUV. The 2015 black Jeep Cherokee SUV had substantial front-end damage. The Venza was just north of the Jeep and neither vehicle had any occupants in it, as they were all being treated by EMS.

[14] Officer Aselton spoke with an independent witness, Michael Lynch, who had been driving on Thornton Road at the time of the collision. Mr. Lynch pointed out the driver of the Venza and the driver of the Jeep. By observing a valid Ontario photo driver's licence and comparing the picture to the individual, Officer Aselton identified the driver of the Venza as the defendant, Stavros Katsikaris. The driver of the black vehicle was Tracey Giorgi.

[15] Officer Aselton investigated the motor vehicle collision and took some statements from Tracey Giorgi and an independent witness, Michael Lynch. He did not take a statement from either Stavros Katsikaris or his wife, Beverley Katsikaris. There was a Level 2 investigator and SOCO officer at the scene and afterwards Officer Aselton went to the hospital where the injured parties had been taken. He subsequently charged the defendant with "turn not in safety".

[16] Officer Aselton was at the scene of the motor vehicle collision for over an hour. During that time, he testified that both the north-south and east-west traffic lights were functioning properly, cycling from red to green to amber to red to green to amber.

[17] In cross examination, Officer Aselton reaffirmed that he identified the defendant through Mr. Katsikaris' driver's licence, but did not take a statement from the defendant or his wife.

(d) Evidence of Durham Regional Police Officer Fraser Wannop

[18] On Thursday, July 5, 2018, at approximately 11:56 a.m. Durham Regional Police Officer Fraser Wannop was dispatched to a motor vehicle collision at Thornton Road North and Adelaide Avenue West in Oshawa, Regional Municipality of Durham. As a Level 2 collision investigator, he conducted a slightly more advanced investigation of the motor vehicle collision. He took more detailed measurements and then completed a more detailed report, which could assist a Level 3 investigator, if needed.

[19] This intersection is a major, busy intersection, where Thornton Road has two northbound and two southbound lanes and Adelaide Avenue has one eastbound and one westbound lane. Traffic signals control the flow of traffic through the intersection.

[20] Officer Wannop observed two damaged motor vehicles on the east side of the intersection, towards the middle, situated side-by-side facing eastbound in the area of the east crosswalk. He was there from 12:31 p.m. and left shortly before 2:30 p.m. During that time, he felt safe at the intersection, with the traffic lights cycling properly. Officer Wannop does not recall how long he watched the traffic lights cycle. When the lights were green on one street, they were red for the street that is perpendicular. The lights changed at the same time, but with a delay before the green light came on.

[21] In cross examination, Officer Wannop stated that, in his investigation of the collision scene, he did not observe any skid marks or tire marks at the intersection.

(e) Evidence of Stavros Katsikaris

[22] The defendant, Stavros Katsikaris, testified that on July 5, 2018, he was driving southbound on Thornton Road, intending to turn left onto Adelaide Avenue, headed to Costco. At the intersection, the light was green, but he waited for the red light because that was the only time the oncoming traffic cleared up. He proceeded to turn left when suddenly he heard a big noise. He did not know where it came from. There had been a motor vehicle northbound in the left lane that changed lanes suddenly, moving into the right lane to proceed straight through the intersection. Mr. Katsikaris does not believe the driver of that vehicle signalled prior to changing lanes.

[23] As a result of the collision, Mr. Katsikaris was dizzy, but was more worried about his wife. The police arrived and asked Mr. Katsikaris for his driver's licence, but not about anything else relating to the motor vehicle collision. The defendant accompanied his wife in the ambulance to the hospital.

[24] After he arrived home, the police arrived and served him with the offence notice, as people had said the collision was his fault. Mr. Katsikaris wondered why the police officer did not make his own decision. He was also bothered by the fact that the other driver acted in a 'hit and run' fashion and did not stay at the scene of the collision. He discovered the identity of the other driver only when the police officer charged him with the offence.

[25] In cross examination, Mr. Katsikaris confirmed that he saw a red traffic light and, believing this meant the oncoming traffic would stop and the intersection would be clear, he turned left onto Adelaide Avenue and then heard the collision. He did not see the other motor vehicle before the collision, as somehow it was hiding. He re-iterated that the driver of the other vehicle did not stay at the scene of the collision. Her motor vehicle remained there, but the driver was gone.

[26] When asked if he ever saw the other car before he made his left turn, Mr. Katsikaris stated, "No". He had not seen it move from one lane to the other, nor did he see it proceed into the intersection just before it collided with his vehicle. He wondered where the other driver was and stated that she was hiding somewhere and it seemed to him that she wanted to hit his vehicle.

[27] When asked how sure he was that his traffic light was red, Mr. Katsikaris reiterated that he could turn only on the red light, as that was the only time the intersection cleared.

III. Submissions of the Parties

(a) Prosecution Submissions

[28] The prosecutor submits that there is no dispute with respect to the date, time, location and the defendant making a left turn at the intersection. The only dispute is that the defendant believes his southbound traffic light was red and the two civilian witnesses stated that their northbound light was green. The independent witness, Mr. Lynch, was directly opposite the defendant, waiting to make a left turn and was certain his light was green. Ms. Giorgi testified that the light was green when she entered the intersection and the defendant made a left turn in front of her. There was no cross examination of these witnesses and, therefore, their testimony is unchallenged. Mr. Katsikaris contradicted these witnesses and stated that he was in the intersection, waiting for the light to turn red.

[29] In examination in chief, the defendant first testified that he heard the collision, yet he subsequently stated that the other motor vehicle changed lanes without a signal and it moved into the right lane and hit his vehicle. However, in cross examination, Mr. Katsikaris stated he did not see the other vehicle before the collision, he did not see it in the right lane, he did not see a lane change without a signal and he did not see the other vehicle whatsoever before the collision. When asked how sure he was that the light was red, Mr. Katsikaris said he had to wait for the red light to make his left turn, but he never said he saw the light change to amber and then to red.

[30] The lights were functioning properly, with the southbound lights green when the northbound lights were green. The actus reus has been proven. There is no defence of due diligence – no evidence of the steps the defendant took or procedures or observations of opposite direction traffic before the defendant made his left turn.

(b) Defence Submissions

[31] The defence submits that the defendant's statement was never taken at the scene of the collision or at the hospital. As well, no statement was taken from the defendant's wife. The defendant's representative, his son, Steven Katsikaris, advised that there was a criminal conspiracy going on and he feared for his family.

[32] Mr. Lynch, who was facing northbound traffic control signals, did not know if the defendant's traffic light for southbound traffic was green and the defendant's representative has no issues with everything else that witness said. Ms. Giorgi said the defendant did not stop before the intersection, whereas Mr. Lynch said the defendant was waiting there with his signal on. Steven Katsikaris submits that Ms. Giorgi struck his father's vehicle with her vehicle. She switched lanes way back – 30 seconds or more – and then said his father did not stop at the intersection. Steven Katsikaris is accusing her of being part of the criminal conspiracy. He says he has federal documents to back this up and that is why they are fighting a $100 ticket.

IV. Analysis and Findings

[33] There is no dispute – it was July 5, 2018, sometime after 11:00 a.m. There was a motor vehicle collision at the intersection of Thornton Road North and Adelaide Avenue West in Oshawa. At the time of the collision, Tracy Giorgi had been travelling northbound on Thornton Road, proceeding straight through the intersection, while Stavros Katsikaris was going southbound and was turning left at the intersection. Mr. Katsikaris did not see Ms. Giorgi's vehicle until after the two vehicles collided.

[34] Michael Lynch, an independent witness to the collision, had been northbound on Thornton and was stopped just before the intersection, waiting for the southbound traffic to clear prior to making his left turn onto Adelaide Avenue. He testified that the traffic light he was facing was green at the time the collision occurred. Ms. Giorgi also testified that her northbound light was green when she entered the intersection. Mr. Katsikaris stated that his southbound light was red when he made his left turn onto Adelaide.

(a) Was the northbound traffic light green at the same time that the southbound light was red?

[35] Durham Regional Police Officers Sean Aselton and Fraser Wannop both testified that the traffic lights were functioning properly at this intersection. The north/south lights were both green, when the east/west traffic lights were red. There was no evidence that the lights facing southbound traffic were red when the lights northbound were green. I heard no evidence of an advanced or delayed flashing green light or a green left-turning arrow.

[36] In the absence of evidence to the contrary, I rely on the presumption of regularity to find that both the northbound and the southbound lights were green at the same time and changed to amber at the same time and red at the same time. The presumption of regularity is a rebuttable presumption that would give way to contrary evidence. The strength of the evidence necessary to displace the presumption of regularity depends on the nature of the case and the person claiming evidence to the contrary bears the burden of establishing on a balance of probabilities that such contrary evidence exists.

[37] In determining that the southbound traffic light did not change to red before the northbound light, but that they changed at the same time, I rely on R. v. Crowe, [2003] O.J. No. 2 (OCJ). At paragraph 22, MacDonnell J. states:

In my opinion, the fact that traffic signals at an intersection of two highways are not meant to show green lights simultaneously to vehicles approaching the intersection at right angles is notorious. It is in the very nature of traffic signals to prevent such vehicles from entering the intersection at the same time. Every driver who proceeds through an intersection on a green light, and every pedestrian who crosses a street with the light, not only shares that understanding but in a very real sense stakes his or her life on it.

[38] At paragraph 24, Justice MacDonnell determined:

The fact that traffic signals are designed to prevent north-south and east-west traffic from proceeding through an intersection at the same time is "so generally known and accepted that it cannot reasonably be questioned." In my view, not only would the justice of the peace have been entitled to take judicial notice of that fact, it would be unreasonable to have declined to do so.

[39] In addition, I am persuaded by R. v. Scetto, [2013] O.J. No. 2043 (O.C.J.), in which Justice of the Peace R. Quon states at paragraph 186 of his judgment:

… In particular, it can be logically presumed that the sequence and phases of the traffic lights at the intersection would not be designed or set up by the municipality so as to make the intersection unsafe or dangerous to motorists and pedestrians using or crossing at the intersection. For example, the traffic lights would not be sequenced so that there would be a green light for both Hurontario Street and Bristol Road at the same time, because logically, having green lights being on at the same time for both the east-west and the north-south directions would cause a very dangerous and unsafe situation. Therefore, the sequence of traffic lights at an intersection clearly would not be designed to be unsafe. And, it is this premise that would be the basis for finding that the sequence of automatic traffic lights at an intersection would not be designed to be unsafe, but designed and sequenced for protecting the public, and that the erection of automatic traffic lights at an intersection to control traffic and pedestrians for all directions of the intersection would be presumed to be regular and erected to protect the public.

[40] I accept that the subject of the matter before me is not about the functioning of lights that are perpendicular to each other at an intersection, as in the above jurisprudence. Nonetheless, the same principles of public safety apply in the set up of lights at any intersection. I accept the Officers' testimony that there was nothing unusual about the sequence of the traffic lights at the intersection of Thornton Road and Adelaide Avenue and that they were functioning properly. The east/west lights functioned in harmony, while the north/south lights also functioned in harmony. I accept that proper functioning of traffic lights would prevent traffic at the intersection from entering the intersection unsafely.

[41] The defendant testified that, for him to safely enter the intersection to make his left turn, he had to wait for the northbound traffic to clear the intersection. This would occur when his southbound facing light turned red, as he relied on the northbound light turning red at the same time. In other words, when the southbound traffic light turns red, he expected that the northbound traffic light turns red at the same time. The defendant, himself, staked his life and that of his wife on the generally known and accepted fact that both the southbound and northbound lights turn red in harmony. This testimony reinforces the fact that the municipality would not design the sequencing of traffic lights to be unsafe, but rather the sequencing of traffic lights is designed to safeguard and protect the public. The public expects the northbound and southbound traffic lights to sequence in harmony.

[42] The defence has provided no evidence to rebut the presumption of regularity and I see no reason to reject the evidence of the Officers that the traffic control signals were functioning properly. For all these reasons, I find that both the northbound and southbound traffic lights on Thornton Road North were green at the same time and changed to amber and then to red at the same time. Hence, I find that the defendant travelling southbound on Thornton Road North and Ms. Giorgi travelling northbound into the intersection both would be facing a green light at the same time, an amber light at the same time and a red light at the same time.

(b) Assessing reliability and credibility – applying R. v. W.D.

[43] As issues of credibility and/or reliability have arisen, I look to the general guideline as set out in R. v. W.D., [1991] 1 S.C.R. 742. At pages 757-758, Justice Cory, for the majority of the Supreme Court of Canada, states:

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

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

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[44] Simply because the defendant's testimony may be found to lack credibility, that does not equate to proof of guilt beyond a reasonable doubt. The burden of proof beyond a reasonable doubt of each element of the offence never shifts from the prosecution.

[45] The defendant stated that he waited for his southbound traffic light to turn red and he relied on the northbound traffic light also turning red at the same time, stopping oncoming traffic and allowing him to make his left turn at the intersection. However, both Ms. Giorgi and Mr. Lynch testified that their northbound traffic light was green at the time of the collision.

[46] Mr. Lynch is an independent witness who had a clear and unobstructed view of the motor vehicle collision as it occurred. At the time of the collision, he was still facing a green light, waiting to turn left when the southbound traffic cleared. This would have occurred had the southbound traffic control signal turned red. I accept that this had not yet happened. I accept the officers' testimonies that the traffic control signals at the intersection of Thornton Road North and Adelaide Avenue West in Oshawa were functioning properly. For the reasons I provided above, I find that the northbound and southbound lights sequenced in harmony – they were not malfunctioning and they were green at the time of the collision.

[47] Although Mr. Katsikaris believed his traffic light had turned red when he made his left turn, considering all the evidence, including the fact that the defendant was not fully aware of his surroundings where there was a northbound motor vehicle proceeding into the intersection when he was turning left, I cannot find Mr. Katsikaris' evidence to be reliable. Moreover, on more than one occasion he was evasive, not stating his light was red, but rather he could turn left only on the red light, as that was the only time the intersection cleared. In rejecting the defendant's evidence, I am not left with reasonable doubt by it. Hence, I am satisfied that the southbound and northbound lights were green at the intersection of Thornton Road and Adelaide Avenue when Mr. Katsikaris proceeded to turn left into this intersection.

(c) Did the defendant contravene subsection 142(1) of the HTA?

[48] Subsection 142(1) of the HTA reads:

The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.

[49] Based on the evidence I do accept, I am satisfied that, on July 5, 2019, at the intersection of Thornton Road North and Adelaide Avenue West in Oshawa, the defendant, Stavros Katsikaris was driving his motor vehicle southbound on Thornton Road, turning left at the intersection onto Adelaide Avenue. He did not first see that this left-turn movement could be made in safety, as he proceeded to turn left at the intersection when his vehicle collided with a northbound vehicle that he failed to observe travelling straight through this intersection on a green light. I am satisfied, based on the evidence I do accept, that all the elements of the offence of "turn not in safety", contrary to subsection 142(1) of the HTA, have been proven beyond a reasonable doubt.

(d) Strict liability offence

[50] In R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, Dickson J. on behalf of the Supreme Court of Canada, identified three categories of offences. In describing a strict liability offence, he wrote:

Offences in which 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 the liability by proving that he took all reasonable care. This involved 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.

[51] The offence with which the defendant is charged under subsection 142(1) of the HTA, "turn not in safety", is a strict liability offence and, hence, the defence of due diligence is available to Mr. Katsikaris to prove on a balance of probabilities. He believes that he took all reasonable steps, as a driver in these circumstances, to ensure he could make his left turn safely and, consequently, his due diligence should exonerate him of the charge he is facing.

[52] The onus is on the driver of a motor vehicle who is turning left to ensure that he can do so safely. This includes ensuring that all oncoming traffic has cleared the intersection. Mr. Katsikaris did not do this, nor in the circumstances, could he reasonably believe in any mistaken set of facts, whether facing a green or red traffic light. I heard no evidence from the defendant of the reasonable steps he took to ensure the oncoming traffic had stopped, in order to allow him to proceed with his left turn into the intersection. He did not see Ms. Giorgi's oncoming vehicle until after the two cars collided. In my view, Mr. Katsikaris simply relied on his belief that a red traffic light would allow him to proceed into the intersection to turn left. He has not proven that every precaution reasonable in the circumstances was taken. I find that the defendant has failed to establish, on a balance of probabilities, that he exercised due diligence to see that his left turn movement could be made in safety.

V. Conclusion

[53] In conclusion, considering the charge, the plea, the evidence of all the witnesses, on the totality of the evidence before me, I am not left with reasonable doubt. Instead, I am satisfied that the elements of the offence contrary to subsection 142(1) of the HTA, in particular, "turn not in safety", have been proven beyond a reasonable doubt. The defendant, Stavros Katsikaris, was driving his motor vehicle southbound on Thornton Road North in Oshawa and turned left onto Adelaide Avenue West, without first seeing that this movement could be made in safety.

[54] Given that this is a strict liability offence, I have considered the evidence provided in a due diligence defence to this charge. For the reasons I have provided, I am not satisfied Mr. Katsikaris exercised reasonable due diligence on a balance of probabilities in the circumstances.

[55] Consequently, I am satisfied beyond a reasonable doubt that Stavros Katsikaris is guilty of "turn not in safety", contrary to subsection 142(1) of the HTA. A conviction will be entered.

Released: October 2, 2019

Signed: Justice of the Peace M. Coopersmith