DATE: May 10, 2022

ONTARIO COURT OF JUSTICE Central West Region

Her Majesty the Queen -and- Scott Watson

Proceedings conducted: November 18, 19, 25 26, 2021, February 9, 2022 (adjourned), and April 13, 2022 at City of Hamilton, Ontario

Decision and Reasons issued: 10 May, 2022 All trial dates were conducted by Zoom Reasons amended 16 December, 2022, on consent

Appearances: J. Whitten, for the Crown G. Read and self, for the defence

Statutes Considered or Cited:

• Highway Traffic Act, R.S.O. 1990, c. H.8, as amended

Cases Considered or Cited:

• R. v. Shergill, 2016 ONCJ 163, (affirmed) 2016 O.J. No. 4294
• R. v. Watson, 2021 ONCJ 613
• R. v. Roy, 2012 SCC 26

Decision of the Court

[1] For the reasons set out below, I find the defendant guilty of one count each as charged, that is careless driving cause death (s. 130(3) of the HTA), and careless driving cause bodily harm, (s.130(1) of the HTA).

Background and Evidence

[2] The trial proceeded by Zoom. Mr. Watson made an adjournment request, decided on the basis of written materials filed by the parties prior to the first date of trial, to allow the matter to be heard in person once court operational protocols permitted. I directed, in a decision reported as R. v. Watson, 2021 ONCJ 613, that the trial proceed by Zoom. Court Administration provided Mr. Watson a video suite in the Court to allow him use of the necessary technology.

[3] I note that by the trial date in April, 2022 parties were permitted to appear in person in Court, the parties elected to continue in the same mode of appearing as had been the case to that point of the proceedings.

[4] The alleged infractions occurred on December 28, 2019. The evidence establishes, and there is no dispute as to the fact that Mr. Watson was operating a Harley Davidson Deuce, and that the motorcycle collided with the victims, who were attempting to cross Mohawk Road in the City of Hamilton by foot.

[5] At approximately that point of Mohawk Road, there are two built-up concrete dividers, separating east and west-bound traffic. One is narrow that starts before the side street which Mr. Watson would have passed prior to the collision, separating the left turn lane from on-coming traffic. At the point where vehicles are required to turn left from the left turn lane, there is a further “median”, some fifteen metres in length, and occupying a full lane width. The shape of this median may be said to be a parallelogram.

[6] As a result, the roadway where the median is positioned, through to where the impact occurred would be a total of five lanes wide.

[7] There is nothing to indicate pedestrian crossing in the area of the median is permitted. Evidence established that the median actually serves as a rest point as pedestrians cross the five lane roadway. As a result, it can be said colloquially that the victims were jay walking. Apparently, this is a common and known problem in the area.

[8] Video depicts the victims crossing Mohawk Road at a point approximately at the end-point of the median. At that point on the eastbound roadway, there is an entry/exit to the plaza. Vehicles travelling westbound can enter the plaza by turning just before the median. Vehicles travelling eastbound can also enter the parking lot here, and vehicles can exit the plaza to travel eastbound only.

[9] From the video, we see that the victims were wearing winter clothing. Francis Wood was wearing a white, puffy style coat and Berkeley Wood was wearing a coat with a black and white checkerboard pattern. Francis Wood appears to be to the left of her son [i], such that she would have been closer to Mr. Watson.

[10] The victims were elderly. They walked with assistance of walkers.

[11] One witness, a neighbour who lived across the street from the victims, stated that they made their journey from their home to the Food Basics plaza routinely and frequently. They always crossed at that point in the road, in spite of the inherent dangers.

[12] As set out in an agreed statement of fact, Berkeley Wood (male) died as a result of the impact. Francis Wood (female) suffered the following injuries: a. Compound (open with protruding bone fragment) fracture to left tibia b. Left distal radius (wrist) fracture c. Comminuted left scapular fracture (shoulder) i. non-operative injury d. Comminuted right scapular fracture (shoulder) i. non-operative injury e. Right seventh rib fracture i. Non-operative injury

[13] The impact between the motorcycle and pedestrians occurred at approximately 5:30pm. Although it was dark, there was functioning street lighting. The road surface was clear, there is no evidence of any precipitation. The posted speed limit on Mohawk Road at that point is fifty kilometres per hour.

[14] The evidence clearly establishes that Mr. Watson was positioned on the motorcycle he was riding at the stop line for east bound traffic on Mohawk Road, at the intersection with Upper Gage. At this location, there were four lanes for eastbound traffic: a left turning lane, two through lanes and a right turning lane. Mr. Watson was in the left of the two through lanes (lane one).

[15] Beside Mr. Watson’s motor vehicle in the lane to his right (in lane two) was another sedan type vehicle.

[16] Video of the operation of at least these two motor vehicles (and, indeed others) was captured by security video systems operated by or for the Food Basics store, located at the northeast corner of the intersection. Various cameras captured images of the two mentioned motor vehicles departing the stop line, once the light for their direction of travel turned green. The same motor vehicles were also captured by cameras as they travelled along Mohawk Road, from that intersection to the point of collision, some one hundred seventy-five metres from the intersection. Another camera angles captured the actual collision.

[17] The total lapsed time from Mr. Watson’s departure from the stop line to the point of collision was less than ten seconds.

[18] A passenger in the motor vehicle originally to the right of Mr. Watson’s vehicle gave evidence that she noted the progress of the motorcycle, as it left the stop line, through to the point of collision. She describes it as leaving the intersection faster than the vehicle she was in.

[19] That witness stated that as the vehicle in which she was travelling progressed beyond the intersection, she observed the pedestrians who were eventually struck. She started to comment to her friend driving the car, that there was going to be a collision, however, before she finished her comment, the collision actually occurred. She stated that prior to the collision, she did not see brake lights illuminated.

[20] Other witnesses also gave evidence, largely focussed on the level of noise emanating from the motorcycle. The thrust of that evidence was that the motorcycle emitted a loud sound, which modulated in way to suggest a high rate of speed and gear changes on the motorcycle, as it travelled from the stop line to the point of collision.

[21] An accident reconstruction was performed, and the report of the reconstructionist was tendered. The reconstructionist gave viva voce evidence and was thoroughly cross examined.

[22] Based on the reconstruction data and calculations, the motorcycle is said to have been travelling at a speed of at least fifty-seven kilometres per hour. This is based on skid marks made on the roadway from the sliding of the motorcycle, after the collision. It is also supported by a skid mark that appears before the established point of collision, as a result of sudden negative acceleration (deceleration, or braking).

[23] Based on the report, Mr. Watson applied his brakes less than a second prior to the impact.

[24] Mr. Watson gave evidence in his defence.

[25] He is a professional driver (tractor trailers) with over twenty years experience; he was properly licenced to drive both big rigs and motorcycles. He has owned at least one other motorcycle.

[26] The motorcycle belonged to a friend, and he had an interest in purchasing it. He had had possession for a period of time, and was simply out “for a ride”.

[27] He describes his seating position as lower than for drivers in sedan type cars, and that the headlight on the motorcycle was slightly less illuminating.

[28] He was not far from home, and was familiar with the area, the roads, and activities in the area.

[29] He stated that he was positioned at the stop line; he was revving the engine of the motorcycle, to ensure it was running properly. When the light turned green, he moved away from the start line, in what he described as a controlled and routine manner.

[30] As he moved forward, he changed gears in a normal fashion, getting to third gear. He says he achieved a travel speed of fifty kilometres per hour, but did not provide any grounds to establish how he knew the speed at which he was travelling.

[31] He acknowledges the presence of the car to his right, which left more slowly then did he, and he had no awareness of its progress as he travelled along Mohawk Road. He also recalled making no observations of any vehicles entering or exiting the plaza to the right side of Mohawk Road, as he was travelling eastbound. He travelled along the left edge of lane one, as was his preference and had him feeling comfortable.

[32] He did not see any vehicles on the roadway ahead of him, either travelling east bound, or crossing from the westbound lanes to make a left turn into the plaza.

[33] He said he was paying attention to the road ahead, but did not note the presence of the victims until just moments prior to the collision. When he realized they were there, he took the evasive manoeuvres, based on his training, by moving to the left. As he approached the victims, he put out his right arm to try and keep them away, causing him to take his hand off the control on the right side handle.

[34] He also factored into his decision regarding evasive manoeuvres that he was unsure of whether there might be any vehicles to his right.

[35] He stated that when he first saw the victims, they were on the left side of lane two (to his right). He made no observations of their rate of speed or progress across the road.

Position of the Parties

[36] Both Crown and Defence accept that the guidance set out in R. v. Shergill, 2016 ONCJ 163

20 These words from McLachlin C.J. in Beatty were adopted by Cromwell J. in R. v. Roy, 2012 SCC 26, [2012] S.C.J. No. 26 (S.C.C.). He reiterated that the Criminal Code charge of dangerous driving causing death required a degree of fault — a marked departure from the standard of care that a reasonable person would observe in all the circumstances. He drew the distinction between a "mere departure from the standard of care" and a "marked departure justifying criminal punishment" in paragraph 28. He said that the lack of care must be serious enough to merit punishment when dealing with offences under the Criminal Code.

21 In paragraph 31 Cromwell J. recognized that the Supreme Court of Canada has distinguished between "on the one hand, simple negligence that is required to establish civil liability or guilt of Provincial careless driving offences and, on the other hand, the significantly greater fault required for the criminal offence of dangerous driving. (Emphasis mine) He concluded that the "marked departure" standard "separates federal criminal law from Provincial regulatory law and ensures that there is an appropriate fault requirement for Charter purposes.

[37] Mr. Read invites me to frame my decision based on whether it is possible for a motorist maintaining due care and attention and still be involved in an event with these tragic consequences.

[38] Of course, I accept that this may be a possibility.

[39] Further, he argues that Mr. Watson’s evidence should be accepted in its totality, and I should accept his evidence that he acted prudently at all times, citing the controlled departure from the start line, Mr. Watson’s evidence that he did not exceed the speed limit, that he paid attention to the users of the road, that the pedestrians would not have been expected “users” of the road – given that they were traversing the road at a place not marked for crossing, and, finally, that once he observed the unexpected pedestrians, he took reasonable evasive manoeuvres.

[40] Mr. Read submits that I ought attach limited weight to the findings set out in the reconstruction report, as the calculations were completed based on generic factors (such as coefficients of friction) rather than actual data based on the tires on this motorcycle or the condition and composition of the road surface.

[41] He submits that observations regarding the loud sound from the motorcycle are not persuasive, and based on lay experience, complicated by the buildings acting as a sound board to enhance its impact.

[42] The Crown submits that Mr. Watson fails to establish any defence to detract from the preponderance of evidence that his actions were careless.

[43] For example, Mr. Watson’s departure from the stop line was far quicker than that of the vehicle next to it. As Mr. Watson arrived at the point of collision, the other vehicle that had left the stop line at the same time had covered approximately fifty to seventy percent of the same distance travelled by Mr. Watson.

[44] Mr. Watson did not observe the pedestrians until the very last moment, in spite of those pedestrians being visible to the passenger in the car further behind in the lane to Mr. Watson’s right.

[45] The Crown submits that the position of Mr. Watson on the seat of the motorcycle, the strength of illumination by the motorcycle headlights and resulting visibility, should be viewed as additional circumstances that should inform his driving behaviour.

[46] The Crown submits that failure of Mr. Watson to observe any vehicles exiting the driveways from the parking lot to his right, or to maintain awareness of the progress of the motor vehicle that left the stop line at the same time as he did, indicates his lack of situational awareness that would be necessary to be able to operate his motorcycle, even in the event of unexpected circumstances, such as the unexpected appearance of pedestrians.

Conclusions

[47] Simply, I agree with the Crown and its submissions.

[48] That said, I find that the voluminous evidence regarding the engine sound to be unhelpful.

[49] At the same time, I accept the evidence of the accident reconstructionist that Mr. Watson was travelling above the posted speed limit. The fact that Mr. Watson was unable to establish his speed by reference to his speedometer or any other verifiable reference point, while remaining adamant that he was travelling at almost exactly fifty kilometers per hour, gives it the feel of being self-serving. To accept his evidence would be akin to accepting defendants’ statements that they were not speeding when caught doing so on a speed measurement device. To be sure, there was no speed measurement device deployed here, however, internationally accepted protocols for accident reconstruction serve as an adequate facsimile. This is especially true where Mr. Watson provided no foundation to establish that the formulae and factors relied upon by the reconstructionist are in any way deficient, while speculating they were deficient.

[50] It is particularly troubling that I am asked to accept that the lighting was inadequate to allow Mr. Watson to see the pedestrians, given factors such as his position on the motorcycle, the street lighting and strength of his headlight, in spite of (presumably) municipally installed and maintained lighting systems. There is no evidence called to suggest that the lighting was not functioning properly, or that it was below standards.

[51] Were I to accept that the seat position on the motorcycle or diminished lighting were factors, it would only lead me to conclude that a higher degree of care and attention would be called for.

[52] Mr. Watson’s evidence that he is familiar with the area is inconsistent with the evidence that pedestrians routinely cross the road improperly at or near that location.

[53] Further, Mr. Watson’s failure to maintain awareness of his surroundings and the presence (or absence) of other vehicles or pedestrians on the road, indicates a lack of attention and detracts from his effort to persuade me that he acted prudently in the circumstances.

[54] This was not momentary inattention but rather a too-relaxed approach to maintaining awareness of his surroundings and unfolding circumstances. It may be that Mr. Watson was simply “cruising” that day, but, while doing so, he missed far more than what is necessary to meet the standard of reasonable care and attention.

[55] To be sure, the events in question unfolded very quickly. In a different time, we may not have been assisted by the available video surveillance video and accident reconstruction techniques, which recreate a moment by moment, after-the-act analysis of what transpired. I accept that motorists need not be required to respond to every unique or unusual circumstance or development instantaneously; we do however hold drivers to a standard of keeping aware of expected (and many unexpected) changes in circumstances, which exist in our highly dynamic road environment, and to be able to adapt as necessary to avoid such collisions as result in tragedies as in this case.

[56] Mr. Watson failed to meet this standard of care and attention, and in doing so, did cause death to one individual and bodily harm to another.

[57] I note that I have no reason to believe that Mr. Watson acted in any way that would represent wanton disregard for human life. Had that been the case, he may well have had to face more severe consequences for his actions.

Issued at City of Hamilton, Ontario, May 10, 2022

His Worship Donald Dudar Justice of the Peace

[i] Decision is amended on 16 December, 2022, on consent of the parties to reflect the correct relationship between the two victims, as mother and son.