ONTARIO COURT OF JUSTICE DATE: 2022 07 11 Region of Peel
BETWEEN:
Her Majesty the Queen
— AND —
Heather Vukovic
Before: Justice of the Peace S. Butany-Goyal
Heard on: June 10, 2022 Reasons for Judgment released on: July 11, 2022
Counsel: Mr. C. Presswood, for the Prosecution Mr. M. Montes, for the Defendant Ms. Vukovic
JUSTICE OF THE PEACE S. Butany-Goyal:
[1] This is a decision in the matter of Heather Vukovic, who was charged with Careless Driving Causing Death, contrary to Section 130(2) of the Highway Traffic Act. The trial was heard on June 9 and 10, 2022. Ms. Vukovic entered a plea of not guilty on June 9, 2022.
[2] This trial was conducted virtually, using the Zoom platform.
[3] At the outset of the trial, both Crown and Defence agreed that date, time and location were not an issue.
[4] The allegations are that on December 3, 2020, Ms. Vukovic was travelling westbound on Highway 9 from Caledon toward Orangeville. Ms. Vukovic’s vehicle collided with another vehicle that was turning left, to travel eastbound on Hwy 9. The driver in the other vehicle sustained significant injury from the collision, eventually succumbing to his injuries. Ms. Vukovic was accordingly charged.
[5] The question, then, for this court to consider, is whether Ms. Vukovic is guilty of the offence of careless driving causing death, contrary to the Highway Traffic Act.
The Witness Evidence
[6] The first witness to testify for the Crown was Mr. Gordon Frankic. He testified that on December 3 2020 he was travelling westbound on Highway 9 toward Orangeville. He observed a green Dodge Ram in the left lane, between 1 and 1.5 car lengths ahead of him. After the Airport Rd intersection, Mr. Frankic observed a white vehicle turning left out of a service centre ahead of him. He slowed down when he got close to the turning vehicle but he observed that the Dodge Ram to his left did not. Following the collision between the Dodge Ram and the white vehicle, Mr. Frankic pulled over and called 911.
[7] Mr. Frankic testified that while driving he observed the driver of the Ram to be female. After the accident, while pulled over, he saw a person next to the Ram, who he believed to be the driver, she appeared to have an injury to her arm.
[8] Mr. Frankic testified that this is a busy area. In his words, the left turn out of the service station is “a bit tricky”. In cross examination, he acknowledged that he had to engage his own brakes to avoid colliding with the white vehicle, and in his opinion the white car should not have turned left on to the road when it did.
[9] The second witness to testify was Mr. Roy Pleasance. On the date of the incident, he was travelling westbound on Highway 9 in a Ford pickup truck. He was 4-5 car lengths behind the Dodge Ram.
[10] When asked about the speed of the Ram, he could not confirm, but testified that the distance between his own car and the Ram was progressively increasing. By the time the collision occurred, he was 5-7 car lengths behind the defendant’s vehicle.
[11] Mr. Pleasance testified that he observed a white or silver SUV exiting the service centre just west of Airport Rd on Highway 9. The white SUV entered into oncoming traffic, attempting to turn left on to Highway 9, to travel eastbound.
[12] Mr. Pleasance stated that when he saw the turning vehicle, he changed lanes and slowed down. He did not observe brake lights on the Ram, but rather he observed her attempt to swerve to avoid the oncoming vehicle immediately prior to impact.
[13] Following the collision, Mr. Pleasance testified that he exited his vehicle and approached the driver of the Ram and then went to the victim vehicle and observed that the driver’s side had caved in. He opened the passenger side door and the victim fell into his arms. Emergency services arrived shortly thereafter.
[14] The third witness for the Crown was Marco Harjupanula, an OPP officer and accident reconstructionist. He conducted a detailed examination of the scene as well as the diagnostic information available from each of the vehicles (pre-crash data).
[15] According to this data, the Ram was travelling at 105 km/hr five seconds before the collision. The brakes were engaged 1.7 seconds before impact. The white SUV was a Honda vehicle, which entered into the roadway 3 seconds prior to impact. At the point where the Honda entered the roadway, the Ram was 79 metres away.
[16] At the time when the Honda entered the roadway, the Ram was travelling at 109 km/hr. At this rate of speed, it would take 2.6-3.1 seconds to reach the area of impact. According to Constable Harjupanula, had the driver of the Ram been travelling at the posted speed limit of 80 km/hr, it would have taken 3.5-4.2 seconds to reach the area of impact. This means the speed accounted for 1 extra second in terms of reaction time.
[17] Constable Harjupanula’s conclusion, listed at page 32 of the Accident Reconstruction Report, is that collision occurred because the Honda pulled out into the path of the Ram and the Ram was unable to avoid the Honda. In his opinion, the speed at which the Ram was travelling could have been a contributing factor but was not the sole cause of the accident.
[18] The next witness for the Crown was Dufferin OPP officer Brittany Robertson. Constable Robertson testified that on December 3, 2020 she received a radio call for a motor vehicle collision at Airport Road and Highway 9 in Caledon. She took statements from the witnesses and confirmed the identity of the person she believed to be the driver of the Dodge Ram, Ms. Vukovic.
[19] The last witness for the crown was Ms. Pauline Hare. She testified that she was travelling eastbound on Highway 9 on the date of the incident. She was in the right most lane, observed the white Honda pulling out of the service centre, but did not observe the collision. Ms. Hare called 911 and then exited her vehicle to assist the parties. She stood with the driver of the Dodge Ram, who appeared shaken, and then attempted to assist with the driver of the Honda SUV.
[20] The defence chose to call no evidence in this matter.
Relevant Caselaw
[21] The offence of careless driving is best described in the oft-cited Beauchamp decision, in which Justice Mackay articulates that the test to be applied in careless driving is not one of perfection:
“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 men 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 test, where an accident has occurred, 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 this 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?
The use of the term "due care", which means care owing in the circumstances, makes it quite clear that, while the legal standard of care remains the same in the sense that it is what the average careful man would have done in like circumstances, the factual standard is a constantly shifting one, depending on road, visibility, weather conditions, traffic conditions that exist or may reasonably be expected, and any other conditions that ordinary prudent drivers would take into consideration. It is a question of fact, depending on the circumstances in each case.”
[22] Subsequent to this decision, and following a recognition that careless driving is a strict liability offence, the court addressed careless driving in the Hundal decision:
“The subsequent Supreme Court jurisprudence to which the appeal judge adverted, distils the essence of the inquiry as (i) whether the impugned driving constitutes a departure from the standard of a reasonably prudent driver in the circumstances and (ii) if so, whether the departure of significant degree to "deserve" the liability at issue -- from the marked and significant" departure that constitutes criminal negligence, to the "marked" departure that constitutes dangerous careless driving to the "mere" departure that constitutes careless driving or attract civil liability. The appeal judge's reasons do no more than to recognize that this continuum of driving negligence already incorporates the necessary degree of blameworthiness, rendering any stand-alone consideration of this factor inappropriate and redundant.”
[23] In the Phillips decision, Justice of the Peace Coopersmith accepts the submission that speed alone is not sufficient to make out a finding of careless driving, rather that speed, along with other factors and circumstances that ordinary and prudent drivers would take into consideration. I agree with this view.
[24] Finally, I refer to Durno, J’s decision in R. v. Kinch, which cites the R. v. Pyszko and R. v. Globocki decisions, which stand for the principle that in the case of an accident, the fact that death or injury may have occurred is not relevant to the assessment of whether the driving represented a “departure from the standard of care which would justify a finding of careless driving”.
[25] In order to prove the offence of careless driving, the Crown must prove beyond a reasonable doubt that the accused Ms. Vukovic drove without due care and attention and without reasonable consideration for the safety of others.
[26] The Crown contends that the inattention demonstrated by the driver, coupled with the high speed at which she was driving and her failure to take evasive action, taken together, make out the offence.
Analysis
[27] I have carefully considered the evidence and submissions in this matter. On the basis of that review, I make the following findings.
[28] First, the question as to the identity of the driver, which is in dispute. In the circumstances, I am satisfied that Ms. Vukovic was the driver of the Dodge Ram. She was observed exiting the vehicle, and spoke to a number of the witnesses, even briefly. She was observed to have sustained some injury to her arm. The witness Ms. Hare stayed with her while she was interviewed by the police. Although the OPP officer did not specifically identify her in her testimony, I am satisfied that the evidence of identity, taken together, establishes that she is the driver.
[29] Turning to the incident itself, some of the witnesses, notably Mr. Frankic, testified that the Dodge Ram was not traveling particularly fast, Mr. Frankic went so far as to say it was travelling too slow to be in the left lane and he couldn’t overtake it. We know, however, that Ms. Vukovic’s vehicle registered a speed of 105 km/h in the moments prior to the collision. This suggests to the court that Ms. Vukovic was not the only driver on the road travelling above the posted speed limit.
[30] Second, none of the witnesses made any observations of unusual driving by Ms. Vukovic. Both were behind the defendant vehicle and had an effective vantage point. None identified anything unusual about the manner in which the car was travelling, beyond differing opinions about the speed.
[31] Third, there were no concerns on the day at issue about road or weather conditions and there were no concerns about visibility.
[32] In addition, the driver of the white Honda SUV made a left turn at a very high traffic area into oncoming traffic. At the time when he turned there were vehicles in motion both eastbound and westbound. Numerous drivers had to stop or brake in order to avoid colliding with him.
[33] Finally, based on the accident reconstruction information, had Ms. Vukovic been travelling at the posted speed limit, she would have had one extra second to react. This does not mean that in that one second she would have been able to avoid the collision. There is no evidence in the accident reconstructionist report that the collision could or would have been avoided based solely on her speed. Based on the trajectory of the vehicles, and the presence of other vehicles travelling eastbound on Hwy 9 as well, I am not satisfied that there were evasive actions, besides reducing her speed, that could have been undertaken.
[34] It would be an error for the court to hold Ms. Vukovic to a higher standard of care and attention than the victim. Both were required to exercise the same degree of reasonable care and attention. It is, to be sure, incredibly unfortunate that the vehicles collided and that he suffered injuries that led to his death.
[35] This view, taken together with the conclusion of the accident reconstructionist Mr. Harjupanula, that the accident was caused by the victim vehicle and that speed may have been a contributing factor, makes it difficult for this court to hold Ms. Vukovic solely responsible for the, admittedly, unfortunate consequence.
[36] Accordingly, in all the circumstances, I am not satisfied beyond a reasonable doubt that Ms. Vukovic is guilty of the offence of careless driving causing death.
Released: July 11, 2022. Signed: Justice of the Peace S. Butany-Goyal