Ontario Court of Justice

Date: 2022 08 03 Court File No.: Brampton 18-5964

Between:

HER MAJESTY THE QUEEN

— AND —

WENDEL ATTARD

Before: Justice P.T. O’Marra

Heard on: May 30, 31, and June 1, 2022 Reasons for Judgment given Orally on: July 29, 2022 Written Reasons for Judgment released on: August 3, 2022

Counsel: D. Noonan, for the Crown S. Kissova, for the defendant Wendel Attard

P.T. O’Marra, J.:

Overview

[1] Wendel Attard is charged with the dangerous operation of a motor vehicle causing bodily harm to Thongbai Xao, contrary to section 249(3) of the Criminal Code of Canada. The Crown elected to proceed summarily. Mr. Attard pleaded not guilty before me. His trial lasted three days. The Crown called two civilian witnesses, Nancy Innes and Matthew Cutrara, and an expert witness in accident reconstruction and crash data analysis, Constable Misev. The defence called two experts in accident reconstruction from Walters Forensic Engineering, Hai Huang and Scott Walters. Mr. Attard did not testify.

[2] The charge arose out of a motor vehicle collision at the intersection of Hwy #50 and Queen Street, in Brampton at approximately 4:18 p.m. on March 23, 2018.

[3] According to an Agreed Statement of Facts marked as exhibit #1:

(i) Hwy #50 is a six-lane roadway that runs north and south. The posted speed limit was 80 kilometres an hour at that time. Hwy #50 intersects with Queen Street, which is also a six-lane roadway. There are dedicated left-hand turn lanes for both northbound and southbound traffic at this intersection.

(ii) At approximately 4:18 p.m., Mr. Attard was operating his grey 2015 Lexus IS250 (hereinafter referred to as the “Lexus”) southbound on Hwy #50 approaching the Queen Street intersection.

(iii) At the same time, Ms. Xao was travelling northbound on Hwy #50 in a Toyota Corolla (hereinafter referred to as the “Corolla”).

(iv) Having reached the intersection, the Corolla was waiting in the dedicated left turn lane to turn west onto Queen Street East.

(v) After the Corolla entered the intersection to complete the left turn, the Corolla collided with the Lexus.

(vi) On March 28, 2018, Constable Ball attended Westway Trading located at 7835 Hwy #50, Unit 12 which was north of the intersection of Hwy #50 and Queen Street, to obtain the video of motor vehicles travelling on Hwy #50 at or around the time of the accident. Constable Ball seized 30 minutes of video between 4 pm to 4:30 pm on the date of the accident. He confirmed the timestamp on the video was accurate to the time on his cellphone.

[4] Ms. Xao suffered the following significant injuries as a result of the collision: a fractured left femur, a fractured left clavicle, a fractured left wrist, a pulmonary laceration, and a head contusion. Surgery was required to remove her spleen and one side of her colon.

The Issue

[5] To make out its case, the Crown must prove the essential elements of the offence beyond a reasonable doubt, namely that Mr. Attard operated his Lexus at the time of the collision, that he was operating it in a manner dangerous to the public, and that his operation of the Lexus caused Ms. Xao’s bodily harm.

[6] The only issue in this case is whether the Crown has proven, beyond a reasonable doubt, that Mr. Attard’s driving at the material time, considering the prevailing conditions, the location, and the traffic in the area, was a marked departure from what a reasonable, and prudent driver would done in the same circumstances.

Positions of the Parties

The Crown

[7] Ms. Noonan, on behalf of the Crown, submitted that the Crown has proved beyond a reasonable doubt that Mr. Attard is guilty of dangerous driving causing bodily harm as the evidence proved that he entered the intersection at a speed greater than 117 km per hour. The mens rea can be inferred from Mr. Attard’s actions in failing to take any precautions to appreciate the risk and danger to the travelling public, as he approached the intersection in the manner and speed that he did. It was reasonably foreseeable that a reasonable person would have taken steps to avoid the risk by slowing down to avoid colliding with the Corolla or any motor vehicle attempting to turn left.

The Defence

[8] Ms. Kissova argued that Mr. Attard’s driving was dangerous, but it was not a marked departure considering all the circumstances of the case. She submitted that Mr. Attard driving for less than one second as he entered the intersection travelling between 112 km to 117 km per hour, in a rural or industrial area, during moderate traffic, while other motorists were travelling more than 100 km per hour, and the Corolla making an unsafe left turn, did not constitute a marked departure.

Relevant Evidence

Matthew Cutrara

[9] On March 23, 2018, Mr. Cutrara was an off-duty police officer employed by the York Regional Police Service, on his way to buy groceries. He was driving his personal motor vehicle that was equipped with a video camera that was mounted on his front dashboard.

[10] Just before the collision, Mr. Cutrara was travelling southbound on Hwy #50. He was stopped in the left turning lane, waiting to turn westbound onto Queen Street. He was the first motor to make the left turn from the stop line. He estimated that he waited at the light for it to change for approximately one to two minutes. While he waited, he described that the “northbound traffic was moving quite slow at the time…but the traffic for southbound vehicles was going at the rate of speed.” He continued to describe the southbound traffic “at the normal rate of speed, which was 80 kilometres an hour at that intersection, and the northbound traffic was moving slowly.”

[11] He described the northbound traffic as “heavy” and the southbound traffic as “moderate”.

[12] Mr. Cutrara stated that as he waited for the left turn signal to turn green, while stopped: “I could hear over to my right, a vehicle that appeared to be travelling at a high rate of speed. And I couldn’t actually see it from where I was stopped. That vehicle was headed southbound”. Then he described how the Lexus entered the intersection when the light was amber and collided with the Corolla, as it was making a left turn. A qualification worth noting was that before testifying Mr. Cutrara reviewed his dashboard camera footage. By refreshing his memory, it served to confirm in his mind that the light was amber when the Lexus entered the intersection.

[13] After the impact, Mr. Cutrara called 911 and pushed the record button on his dashboard camera so any video that was captured would not be overwritten.

[14] The dashboard recording was played and entered as an exhibit.

Nancy Innes

[15] On March 23, 2018, Ms. Innes was on her way home from work. Just before the accident she was operating her 2015 Dodge Grand Caravan, northbound on Hwy #50 about to turn westbound onto Queen Street East. She was two cars behind the Corolla about to make the same left turn.

[16] As she was waiting to make the left-hand turn, she observed the Lexus approaching the intersection travelling in the opposite direction but “was going very, very fast.” Then she witnessed the Corolla turn into the path of the oncoming Lexus and they collided. She described it as a serious accident and called 911.

[17] Ms. Innes elaborated further as to why she believed that the Lexus was going very fast. She stated the following:

A. Just from seeing how fast it was going. I don't know if that makes sense. I seen it coming but I was like, in my mind, and I still remember thinking so I was like, oh my God, that guy is going really fast. And then I see that car attempt to turn. But it was - it just seemed like excessive for coming through Queen Street so, like, I think Queen Street is like 80 kilometres. It was probably more, but it was 80 kilometres per hour there, and I was like thinking in my mind it was a little bit faster than that.

Q. Okay. And when you say a little bit, can I ask what you mean by that?

A. It just – it, it appeared to be like going an excessive speed for cars that I would normally see travelling on that road. It, it looked like over 100. I don't know, so I'm not sure.

[18] With respect to the Lexus slowing down as it approached the intersection, Ms. Innes stated the following:

A. To be honest, it kind of looked like they were trying to [indiscernible] through the intersection, but it didn't appear to be trying to slow down or – it didn't try to stop at all, that's for sure.

[19] In cross-examination, Ms. Innes testified that as the Lexus approached the intersection that it travelled in a straight line, did not overtake, or pass any other motor vehicles and did not change lanes.

Constable Misev

[20] On March 23, 2018, Constable Misev had been assigned to the Major Collision Bureau. He was qualified to give expert evidence in accident reconstruction and velocity analysis using dash camera footage. He prepared a reported titled “Dash Camera Velocity Analysis and Time Distance Analysis” which was marked as an exhibit.

[21] Constable Misev forensically mapped the collision scene to record and coordinate points at the collision scene which was entered into a figurative drawing program to measure distances. Constable Misev also reviewed and studied the dash camera footage that was supplied by Mr. Cutrara. His report included his conclusion as to the average speed of the Lexus at the time of the collision.

[22] Several photographs were entered as exhibits that depicted the motor vehicles’ direction of travel after impact including skid and gouge markings.

[23] Constable Misev defined the constant velocity equation as the constant speed at which an object, or in this case a motor vehicle, will travel a certain distance. The equation can only provide the average speed that the motor vehicle will have travelled over time. The equation will only work if there are two reference points to measure the motor vehicle in which it travelled. In this case, using the dash camera, the first reference point (point A) was where the Lexus crossed the south side of the pedestrian walkway located at the northern side of the intersection. The second reference point (point B) used in the report was the area of the impact near the middle of the intersection, where the tire marks started going in a southwest direction.

[24] The distance calculated between point A and point B was 77.68 feet or the equivalent of 22.457 metres.

[25] Using the dash camera, Constable Misev calculated the frame rate. By doing so he turned the dash camera into a stopwatch by measuring the time the Lexus travelled between the two points. He determined that the frame rate on the dash camera was 29 frames per second when the timestamp moved from 4:18:57 to 4:18:58 and counted the number of frames. Then Constable Misev counted 20 frames it took the Lexus to travel from point A to point B. He divided the frame rate (20) by the total number of frames (29) which provided the actual time that the Lexus took to travel between point A and point B. The actual time was 0.689 seconds that the Lexus travelled that distance.

[26] Once Constable Misev determined the distance and time, he divided 22.457 metres by 0.689 seconds which equaled 32.593 metres per second. He rounded up 32.593 metres per second to 32.6 metres per second to calculate the kilometres per hour. Constable Misev calculated that the average speed of the Lexus as it travelled between the pedestrian crosswalk and the impact site was 117 kilometres per hour.

[27] Constable Misev testified that since the Lexus applied its brakes just before impact, in his opinion, the Lexus was travelling at a “slightly higher” speed than 117 km/hr.

[28] The dash camera video was played several times during the examination-in-chief and it was clear that the Lexus brake lights were not illuminated as it crossed the pedestrian walkway. The brake lights came on just before impact and turned off at impact.

[29] Constable Misev conceded that the constant velocity equation does not allow any estimation of how much faster the Lexus was going just before it entered the intersection and at the point of impact.

[30] The second part of Constable Misev’s report and his testimony focused on a hypothetical scenario structured to calculate the threshold maximum the Lexus could have been travelling and the collision could have not occurred. The calculation was based on the extraction and analysis of the event data recorder (aka the airbag control module or the black box and hereinafter referred as the EDR) from the Corolla. The primary role of the EDR is to measure acceleration in a motor vehicle to deploy the airbags. The EDR will capture up to 5 seconds of measurements and pre-collision data. However, the Corolla’s EDR only captured 4.5 seconds of pre-collision data. The data is extracted by a crash data software program called Bosch.

[31] Based on the EDR from the Corolla, Constable Misev calculated that the Corolla was travelling at 44 km/hr. when its airbags deployed.

[32] Using both the 4.5 seconds of the EDR data, and the Lexus travelling at a constant speed of 117 km/hr., the Lexus travelled 146.65 metres. Constable Misev calculated how far the Lexus would have had to travel had it been travelling at the posted speed limit of 80 km/hr. Taking into consideration the following: the Corolla travelling 44 km/hr. on Hwy #50, the Lexus being 146 metres north of the intersection 4.5 seconds prior to the collision, travelling at the posted speed limit of 80 km/hr. (equivalently 22.22 metres per second) the Lexus would have only travelled 99.99 metres, a difference of 46.66 metres (146.65-99.99 metres = 46.66 metres). In other words, had the Lexus been travelling at 80 km/hr. for 4.5 seconds leading up to the collision, it would have been 46.66 metres north of the area of the impact when the actual collision occurred.

[33] Using the constant velocity equation, it would have taken an extra 2.09 seconds of travel time (or a total of 6.59 seconds) for the Lexus to reach the area of impact had it been travelling at the posted speed of 80 km/hr.

[34] Conversely, Constable Misev was able to determine that if the Lexus had an additional 2.09 seconds to reach the intersection and the Corolla would have had an extra 2.09 seconds, travelling at 44 km/hr., the Corolla could have travelled an extra 25.53 metres and, therefore, no longer encroaching into the path of the Lexus, the collision would not have occurred.

[35] Constable Misev used an Excel spreadsheet to calculate the extra distance that the Corolla could have travelled in 4.5 seconds had the Lexus been travelling above the posted speed limit and avoided a collision. Primarily, had the Lexus been travelling above 109 km/hr. the Corolla would not have been able to travel a distance greater than its length (4.54 metres) without the collision occurring. In other words, it was Constable Misev’s opinion that the collision was inevitable had the Lexus been travelling at a rate above 108 km/hr. and the Corolla was operating the same way.

[36] In cross-examination, despite seizing the video surveillance of Hwy #50 from Westway Trading, Constable Misev did not use the contents of the video in his report.

[37] Constable Misev was asked questions regarding his knowledge of power sources that assist in the downloading process of the EDR to create the Crash Data Report (CDR). He was unaware of the power source or the sources of the wheel speed. He was not aware of whether the Corolla was still fitted with the manufacturer’s tires, or another set of tires on the date of the accident. Apparently, the tire diameter may have a bearing on speed sensor data. He was uncertain if the Corolla uses a wheel speed sensor versus a transmission sensor. Constable Misev was not aware that in order to obtain a complete translation of the downloaded data, a printout of the hexadecimal data was required and then reference needed to be made to the manufacturer’s manual codes from code books to translate each line of data.

[38] Constable Misev did not see anything improper or unsafe regarding how the Corolla made the left turn, even though the Corolla was closer to the outside edge of the turning lane. Constable Misev felt that Ms. Xao was in her proper lane when she started to make the turn and was not out of view from the oncoming Lexus.

[39] Constable Misev disagreed that the curvature of the lens distortion could have led to a slight variation of how he counted the frames from point A. The dash camera was used not for distance but for time.

[40] His view was that the front bumper of the Lexus was “ever so slightly over the crosswalk” and the front wheels aligned with the crosswalk. He disagreed with the suggestion that a half frame could have been counted due to the slight discrepancy, because frames are whole numbers.

[41] Constable Misev agreed that the area of impact could not be pinpointed to the exact “millimeter” but was in a general area created by the force of the impact on the road surface.

[42] Constable Misev disagreed that the variable of frames per second could have been 21 frames per second versus 20 frames per second. When he was asked to calculate the constant speed using 21 frames per second using the formula, Constable Misev came up with 111.66 km/hr. or 112 km/hr.

Hai Huang

[43] Mr. Huang is an expert in accident reconstruction, human factor analysis, video analysis and production video. He has been employed by Walters Forensic Engineering for approximately 16 years.

[44] Mr. Huang and Mr. Walters prepared a forensic engineering report regarding “Other Vehicles’ Speeds from Surveillance Videos.” Two video clips were provided and analyzed which were taken from Westway Trading’s surveillance camera located at unit 12, 7835 Hwy #50 on March 23, 2018, from 4 pm to 4:30 pm. They were asked to assess the speeds of the southbound vehicles that appeared to be travelling faster than the others in the videos. The frame rate was 20 seconds per frame.

[45] Mr. Huang testified that the camera was no longer there when they visited the site. The former location of the camera was approximately 300-400 metres north of the intersection. The viewpoint from the camera was to the west. The north and southbound lanes were observed and a grass median separated Hwy #50 from the parking lot of the location. Mr. Huang established two reference points in the southbound passing lane through the video clips to measure speed of the vehicles. At least 18 motor vehicles were observed and calculated that travelled at an average speed greater than 100 km/hr. between the two reference points. Of the 18 motor vehicles, 2 motor vehicles travelled an average speed faster than 120 km/hr., 6 were travelling at an average speed faster than 110 km/h, 7 travelled at an average speed faster than 100 km/hr. , and 3 travelled at an average speed of 100 km/hr.

[46] Mr. Huang also measured the speed of the white sedan that entered the intersection before the Lexus that was observed on Mr. Cutrara’ s dash camera. He estimated that it took 50 frames for the sedan to travel 42 metres from the south edge of the north crosswalk to the north edge of the crosswalk, at a rate of 29-30 frames per second. He calculated the average speed of the white sedan to be approximately 88 km/hr. to 91 km/hr.

[47] Once again using Mr. Cutrara’ s dash camera, Mr. Huang calculated the Lexus’ average speed using a rate of 21 frames per second to be 112 km/hr. He determined that one more frame per second was necessary as he felt that the front end of the Lexus appeared to be slightly behind the crosswalk in the first frame. Additionally, in the 21st frame, the front end of the Lexus and the right side of the Corolla could be seen rotating downward toward the road surface compared to frame 20 where the vehicles appeared to be touching and dust appeared where the vehicles were in contact. He stated that colliding vehicles which are forced to rotate downward to the road surface would be more likely to create tire marks and other evidence on the road surface. He testified that frame 21 depicted the tire marks starting to change direction.

[48] Mr. Huang opined that a frame could be counted by halves. He also felt that the dash camera distorted the reference points due to the wide lens on the camera, which made the reference points used hard to judge.

[49] Mr. Huang commented on the positioning of the Corolla before it made the left turn, and a black vehicle that was in front of the Corolla. He testified that because the Corolla was so far to one side of the turning lane that the black motor vehicle in front may have blocked Ms. Xao’s and Mr. Attard’s view.

[50] In cross-examination, Mr. Huang agreed that the 18 motor vehicles that were measured could have been travelling at a lower or higher speed than the average speed at any given time.

[51] Mr. Huang was reluctant to agree that a tire mark cannot be caused without downward force opposed to only the lateral movement of a vehicle. He disagreed that frame 20 showed that the colliding vehicles exhibited downward and lateral forces.

[52] Mr. Huang agreed that if he correctly calculated the Lexus’ average speed at 112 km/hr., the Lexus entered the intersection at a higher speed since the brakes had not been applied.

Scott Walters

[53] Mr. Walters is the founder of Walters Forensic Engineering. He is an expert in accident reconstruction and has been involved in over a thousand accident reconstructions. He also has expertise in EDR download and analysis.

[54] Mr. Walters co-authored the report and his contribution is found on page 11 under “Toyota EDR”. He also reviewed Bosch’s CDR from the Corolla.

[55] Mr. Walters testified that Toyota does recommend that its proprietary tool, called Tec stream tool, be used to make sure that all diagnostics systems in the EDR are working properly. If this is not used, there may be some concern about the quality of the data.

[56] Mr. Walters confirmed the tire circumference can impact the calculation of speed.

[57] In cross-examination, Mr. Walters agreed that he did not find any diagnostic error codes in Bosch’s CDR.

Analysis

Presumption of Innocence and Burden of Proof

[58] I must keep in mind that Mr. Attard, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely, it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities": R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 (SCC)).

[59] This is a tough standard, and it is so tough for very good reason. As Cory J. said in R. v. Lifchus, [1997] S.C.J. No. 77, at para. 13:

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted.

[60] In considering whether the Crown has proven the charges against Mr. Attard beyond a reasonable doubt, I must assess the evidence without prejudice, sympathy, or bias. The fact that the collision had catastrophic results, which evoke strong feelings of sympathy toward the victim, has no place in my assessment of the evidence or whether I am satisfied the Crown has proven the charge beyond a reasonable doubt.

[61] Mr. Attard was not under any obligation to testify. I draw no adverse inference from his decision not to testify.

Legal Framework

[62] Section 249(1)(a) of the Criminal Code provides as follows:

249. (1) Everyone commits an offence who operates (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.

[63] Dangerous driving is an offence of negligence, and it must be assessed using an objective standard. In Regina v. Hundal, [1993] 1 S.C.R. 867, at para. 35, Cory J. stated:

Thus, it is clear that the basis of liability for dangerous driving is negligence. The question to be asked is not what the accused subjectively intended but rather whether, viewed objectively, the accused exercised the appropriate standard of care. It is not overly difficult to determine when a driver has fallen below the acceptable standard of care. There can be no doubt that the concept of negligence is well understood and readily recognized by most Canadians.

[64] In Regina v. Beatty, 2008 SCC 5, [2008] S.C.J. No. 5, at para. 43, Charron J. restated the analytical framework in the assessment of dangerous driving cases first articulated in Regina v. Hundal as follows:

(a) The actus reus: the trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place". (b) The mens rea: the trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

[65] In Regina v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 1, Cromwell J. observed the following:

That dangerous driving like all criminal offences consists of two components: prohibited conduct -- operating a motor vehicle in a dangerous manner and a required degree of fault that is "a marked departure" from the standard of care that a reasonable person would have observed in all the circumstances. It is only a marked departure that justifies the fault requirements for this serious criminal offence. The fault component is critical as it ensures that criminal punishment is only imposed on those deserving a stigma of a criminal conviction, while a mere departure from the standard of care will justify imposing civil liability.

[66] The Crown provided the following cases to assist in understanding what constitutes “a marked departure”: R. v. Malkowski, 2015 ONCA 887; R. v. Nikirk, 2022 BCCA 23; R. v. Telesford, 2008 CarswellOnt 5132, [2008] O.J. No. 3429; R. v. Singh, 2010 ONSC 1945; R. v. Anassis, unreported April 30, 1996 (SCJ); R. v. Lundquist, 2016 ONCJ 46; R. v. O'Keefe, 2009 NLTD 188; R. v. Manzon, 2022 ONSC 156; R. v. Heth-Klems, 2021 CarswellBC 4143, 2021 BCSC 2536; R. v. Moxam, 2009 ABPC 300; R. v. Lanza, 2010 ABPC 78.

[67] The Defence provided the following cases concerning the definition of “a marked departure”: R. v. Chung, 2020 SCC 8, [2020] S.C.J. No. 8; R. v. St. Pierre, 2005 CarswellBC 3618, 2005 BCSC 1899; R. v. Richards, [2003] O.J. No. 1042 (CA); R. v. Kresko, [2013] O.J. No. 1523 (SCJ); R. v. Higgins, [2017] O.J. No. 1472 (SCJ); R. v. Higgins, [2018] O.J. No. 3011 (CA).

[68] I have reviewed all the cases that have been cited. I do not propose to detail or distinguish all of them. Having said that, most if not all can be distinguished from the facts of this case. The intervening event is the rate of speed at which Mr. Attard was travelling. I am prepared to make a finding of fact that based on both experts’ opinion and calculation that Mr. Attard’s average constant velocity over the distance from the pedestrian walkway to the collision area of impact measured 73.68 feet, ranged from 112 to 117 km/hr. I also extrapolated from the evidence that the Lexus entered the intersection faster than the stated range. The Lexus was not braking as it entered the intersection.

[69] At the approximate time of the collision, I also accept the fact that several motor vehicles were travelling a constant velocity over 97 to 100 metres in excess of the posted speed limit as captured by the Westway Trading surveillance video located on Hwy #50 just north of the intersection.

[70] I also find no fault in the way the Corolla made the left turn. The maneuver was reasonable in the circumstances. I have no reason to believe that Ms. Xao’s view was obstructed as I have no probative evidence to reach that conclusion. I reject any suggestion that because the Corolla was positioned closer to the eastern edge of the turning lane that her view was somehow obstructed. There is nothing dangerous in the manner of her turn. Ms. Xao’s speed was normal and constant at 44 km/hr., and she was turning on a green light.

[71] I do not place much weight on Ms. Innes and Mr. Cutrara’ s perception of the speed of the Lexus. Their evidence was difficult to quantify. Ms. Innes was stopped at the same light and was two cars behind the Corolla. The Lexus was travelling in the opposite direction. Moreover, Mr. Cutrara’ s motor vehicle was stopped, and his back was to the advancing Lexus. In my view, their estimation or description of the speed beyond “very fast” or “at least 100” was not very reliable.

[72] The best evidence was from Mr. Cutrara’ s dash camera video of the accident, which showed a violent collision.

[73] How did Mr. Attard not see the Corolla and avoid the collision? I accept the evidence from Constable Misev that had the Lexus been travelling at a reduced speed of less than 109 km/hr, a collision could have been avoided. The road conditions were ideal. Given the time of day, there was plenty of light. More likely driver inattention.

[74] In the circumstances, there was speed, clearly an error of judgment and inattention on the part of Mr. Attard. Speeding more than 32-37 km/hr over the posted speed limit while approaching a busy intersection with traffic signals; during rush hour; crashing into the Corolla fully engaged in a turn across an intersection, where there was some evidence of inattention – braking at the last moment before impact, and very little avoidance maneuver – the manner of driving was objectively dangerous.

Conclusion

[75] I find that there was no evidence of any deliberate inattention on the part of Mr. Attard that created a danger to other drivers. I have no doubt had Mr. Attard been driving the speed limit and paying attention he would have been able to stop or avoid the collision with the Corolla. Most likely, Ms. Xao would have been able to make her turn and cleared the intersection. In my view, Mr. Attard was negligent in speeding and not paying attention which may satisfy the civil standard of liability, but I am not satisfied that it was a marked departure from the standard of care of a reasonable and prudent person such that he would have been aware of the danger created by the speed at which he travelled at that time and place.

[76] In reaching my conclusion I am aware that momentary excessive speed in and of itself, having regard to all the circumstances, can amount to dangerous driving; see Chung, para. 19. It supports an inference that given a particular set of circumstances that excessive speed, the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited; see: Roy at para. 41.

[77] In my view, I cannot say with absolute certainty that Mr. Attard was accelerating into the intersection. There is no evidence to support that conclusion. However, I believe that there is an inference that his speed was higher than the predicted range, but I cannot reach the conclusion beyond a reasonable doubt how much faster he was travelling as he approached the intersection. I accept that other drivers approached the intersection more than the speed limit as well and foreseen the risks and taken the same actions as Mr. Attard.

[78] In the result, I am not satisfied that a reasonable person in Mr. Attard’s position would have been aware at that time and place the risk created by his conduct.

[79] I find Mr. Attard not guilty.

Released Orally: July 29, 2022 Written Reasons for Judgment Released: August 3, 2022 Signed: Justice P.T. O’Marra