His Majesty The King v. Cynthia Kirschner, 2024 ONCJ 175

ONTARIO COURT OF JUSTICE

DATE: 2024-03-25 COURT FILE No.: 4960 999 22 32850000 - 00

BETWEEN:

HIS MAJESTY THE KING

— AND —

CYNTHIA KIRSCHNER

Before: Justice of the Peace R.S. Shousterman

Heard on: November 27, December 18 and 19, 2023, and January 31, 2024 Reasons for Judgment released on: March 25, 2024

Counsel: A. Kunasingam, counsel for the Crown M. Cremer, counsel for the Defendant

JUSTICE OF THE PEACE SHOUSTERMAN:

[1] On a clear, dry and sunny summer morning on June 23, 2022, Carter Brown was operating his e-bike while travelling southbound on Yonge Street, in Aurora. Ms. Cynthia Kirschner, the defendant, stopped at a stop sign at Yonge Street and Butternut Ridge Trail. As Mr. Brown continued travelling southbound Ms. Kirschner made a left hand turn onto Yonge Street heading northbound. The e-bike collided with Ms. Kirschner’s motor vehicle. Mr. Carter was ejected from the e-bike and died.

[2] Ms. Kirschner is charged with careless driving causing death contrary to s. 130(3) of the Highway Traffic Act, R.S.O. 1990, c. H.8 as amended ( Highway Traffic Act ).

[3] Ms. Kirschner pled not guilty to the charge. She did not call any evidence.

[4] Ms. Kirschner’s identity as the other driver involved in the motor vehicle collision, as well as the date, time and location were admitted as was the fact that Mr. Brown died as a result of the collision. Accordingly, the only issue to be determined is whether Ms. Kirschner drove her motor vehicle carelessly without due care and attention or without reasonable consideration for other persons using the highway resulting in Mr. Brown’s death.

[5] For the reasons set out below I find Ms. Kirschner guilty of the offence of careless driving causing death.

THE EVIDENCE OF GREGORY GARDINER

[6] Mr. Gardiner testified he first noticed the driver of an e-bike, later identified as the deceased, Cameron Brown, as he was turning south on Yonge Street from Henderson. According to Mr. Gardiner, Mr. Brown was travelling at the speed limit of 60 km/hr. He was aware of Mr. Brown’s speed as he was pacing him.

[7] As Mr. Gardiner continued driving south past Industrial Parkway underneath the bridge, he had a clear line of sight. Mr. Brown was approximately 250 yards ahead of him. Mr. Brown remained in his lane and did not veer around cars or any other users of the road. There were no vehicles travelling southbound in front of Mr. Brown.

[8] At the intersection of Yonge Street and Butternut Ridge Trail there was a two way stop sign in the east and west directions. There were no stop signs or traffic lights for individuals travelling north and southbound on Yonge Street.

[9] Mr. Gardiner testified there were two or three motor vehicles lined up to turn onto Yonge Street from Butternut Ridge Trail. He could see that the first motor vehicle had stopped. He described this motor vehicle as a white sedan driven by a light haired, senior woman, later identified as the defendant, Cynthia Kirschner.

[10] Mr. Gardiner testified Ms. Kirschner looked both ways at the traffic on Yonge Street. He said that prior to making the turn Ms. Kirschner was looking in his direction.

[11] Mr. Gardiner did not believe Mr. Brown saw Ms. Kirschner as he did not see Mr. Brown’s head move. Instead, Mr. Brown appeared to be looking down the road. On re-examination he admitted that while most people tend to slightly move nonetheless someone can see another driver without turning their head. According to Mr. Gardiner, Mr. Brown was driving in the wrong part of the southbound through lane. Mr. Brown was in the centre of the southbound through lane instead of the outside of the left lane.

[12] Mr. Gardiner watched Ms. Kirschner drive into the southbound through lane as she made her left hand turn. She was travelling approximately 10 – 15 km/hr as she started moving. Mr. Gardiner did not believe Ms. Kirschner saw Mr. Brown as Mr. Brown continued travelling southbound. He surmised this was because the e-bike might have blended in with his motor vehicle or because it was green, the e-bike might have blended in with the grass and trees on the north side of Yonge.

[13] Mr. Gardiner started to brake as he realized there was going to be a collision.

[14] Mr. Gardiner testified he saw Mr. Brown put his feet down. He did not see Mr. Brown’s brake lights come on. The e-bike swerved in the direction of Ms. Kirschner’s motor vehicle and collided with it in the southbound lane. Mr. Brown was lifted out of his seat and over the roof of the motor vehicle. He landed on his neck.

[15] Mr. Gardiner testified Ms. Kirschner never braked until after the collision. Ms. Kirschner drove across the street and pulled over onto the side of the northbound lane.

[16] Mr. Gardiner testified the collision took place in the southbound lane however the momentum of the collision carried it into the left turn lane. Ms. Kirschner’s motor vehicle was hit between the fender and windshield. The e-bike was in pieces scattered across Yonge Street.

[17] Mr. Gardiner stopped his motor vehicle, turned on his emergency lights and blocked the road. He ran to Mr. Brown and called 911. Mr. Brown was on his side. His hips were turned down and his body was twisted. Mr. Brown’s helmet was still on. He was making a gurgling noise and Mr. Gardiner believed he was bleeding internally due to fluid in his lungs or throat. Mr. Brown did not move.

[18] A driver in a motor vehicle travelling northbound exited his motor vehicle. He identified himself as a doctor and attempted to provide aid to Mr. Brown but was advised by 911 not to touch him. The police arrived and an ambulance followed shortly thereafter.

[19] Mr. Gardiner gave a statement to the police.

[20] At the time of the collision the northbound side of Yonge Street was under construction. Mr. Gardiner testified that ordinarily Yonge Street had five lanes at Yonge and Butternut Ridge Trail; in June 2022 there were three lanes. According to Mr. Gardiner the lanes had been moved and shifted towards the west. He said that on occasion there were cones on Yonge Street. He said that despite the shifting of the lanes they were straight, and the construction did not cause any obstructions. There was a stop sign at Butternut Ridge Trail and persons travelling on Yonge Street had the right of way.

[21] Mr. Gardiner described the e-bike as green in colour, with headlights and taillights. It was narrow and looked like a 250 CC Ninja sport bike: a type of small motorcycle. According to Mr. Gardiner the average person would not be able to tell the difference between an e-bike and a motorcycle except for the noise.

[22] He said he had seen the driver of the e-bike before. He described Mr. Brown as 5’10”, thin, and 130 – 140 lbs.

[23] Mr. Gardiner described Ms. Kirschner as the driver of the other motor vehicle. He described her as female, a senior, with light hair. He testified he believed Ms. Kirschner was able to see him prior to commencing her left hand turn as she looked both ways before she turned, however he did not think she had seen Mr. Brown. As he testified: “in my opinion, she didn’t see the bike”. When asked why he stated: “because her head would have been slightly turned.” And later: “…and her head should have turned slightly towards him, and it didn’t, and he was far enough ahead that she would have had to have turned her head a little bit”.

THE EVIDENCE OF OFFICER SANDHU

[24] Officer Sandhu was the first officer on scene.

[25] He testified that around 10 am on June 23, 2022, he was driving southbound on Yonge Street, near Industrial Parkway in Aurora, when he noticed the traffic in front of him to be slowing down. The weather was sunny and the roads were dry.

[26] He described the configuration of Yonge Street as consisting of two southbound lanes and two northbound lanes however one of the northbound lanes had been closed and pylons were present. There were orange cones alongside the shoulder of the northbound lanes. There were no construction trucks or equipment near where the collision occurred. The lanes were straight and clearly marked. Neither the pylons nor the construction obstructed his ability to see. He did not recall seeing any construction equipment near where the collision occurred. The speed limit was 60 km/hr.

[27] Officer Sandhu had a clear line of sight for motor vehicles travelling southbound on Yonge Street. His motor vehicle was equipped with an in-car camera.

[28] Officer Sandhu testified traffic had slowed down. At that time, he was not aware of what had happened so he turned on his lights and moved into the shoulder. His in- car camera turned on. He observed a male in a white shirt standing beside a black motor vehicle, as well as other individuals outside their motor vehicles in the vicinity of Yonge Street and Butternut Ridge Trail.

[29] Officer Sandhu exited his cruiser. He saw an individual lying face down in the left southbound lane. The individual was not moving. The individual was wearing a helmet, jacket and jeans. Officer Sandhu did not notice any blood. What he initially perceived to be a green motorcycle but later discovered was an e-bike was in the right lane. Pieces of the e-bike were scattered about. It was apparent to the officer that the e-bike and a motor vehicle had been in a collision.

[30] Officer Sandhu spoke with two individuals who indicated they had not seen what had happened but had gotten out of their motor vehicles to render assistance. A third individual, the driver of the black motor vehicle, told the officer he had witnessed the collision. This individual pointed out the elderly female driver of the other motor vehicle involved in the collision. Officer Sandhu said he would speak with him shortly. He returned to his cruiser to update dispatch and to request EMS.

[31] Officer Sandhu testified his initial focus was on the injured party; not the elderly female who had been pointed out to him as the driver of the other motor vehicle involved in the collision and who he subsequently learned was Cynthia Kirschner. Firefighters arrived and began assessing the injured party. A little bit over a minute later a second group of firefighters arrived. His cruiser was in the way and so he moved it.

[32] An ambulance arrived and the injured individual was loaded into the ambulance and transported to Southlake. Officer Sandhu was ordered to follow the ambulance to the hospital.

[33] Hospital staff were awaiting their arrival at Southlake. The injured individual was taken into a room where he was worked on by the medical team. Another officer had been in the ambulance and both officers waited outside. They were subsequently advised the injured individual had passed away. The other officer took over and advised Acting Sergeant Alberts of the injured individual’s death. While they waited for detectives to arrive, they were advised Ms. Kirschner had arrived in a separate ambulance.

[34] Officer Sandhu spoke with Ms. Kirschner and her son once she was released by the medical staff. She asked how the “young man” was and he told them the injured individual had died. He gave her what he described as a soft caution and confirmed her identity as Cynthia Kirschner. Two detectives arrived and they subsequently took over from him.

[35] Officer Sandhu was subsequently asked to canvas businesses near the scene of the collision for video evidence. He obtained videos from a Dodge dealership and the Delmanor Retirement Home. The videos were uploaded on the police database for the detectives to review.

THE EVIDENCE OF OFFICER SAUMURE

[36] On June 23, 2022, at approximately 10:07 am Officer Saumure was in the area of Leslie Street and Wellington when he received a dispatch for a motor vehicle collision with personal injury at Yonge and Gilbert Drive, Aurora. The initial information relayed to Officer Saumure was that the collision involved a motorcyclist and that the individual was on the ground. There were duplicate calls for the collision, one with a remark that an off-duty paramedic was on scene with an unconscious male party.

[37] Officer Saumure was updated by dispatch while en route to the scene. He was advised the motorcyclist was still on the ground and could barely move. He learned Officer Sandhu was on scene. He requested a rush on an ambulance for a possible broken leg and difficulty breathing.

[38] Officer Saumure arrived at 10:14 am. Officer Sandhu and Acting Sergeant Alberts were present as were fire and EMS.

[39] On exiting his motor vehicle, he was advised by a firefighter that a female sitting on the back of their pumper truck was the driver of the Volvo motor vehicle involved in the collision.

[40] Officer Saumure observed what he initially thought to be a motorcycle on its side, on the road. The motorcyclist was further away, closer to the centre of the intersection. A helmet was on the ground nearby. Lifesavings efforts were underway. CPR was being conducted on the motorcyclist. He asked fire and EMS whether additional aid needed to be rendered. The motorcyclist was prepped for transport by EMS to be taken to Southlake. He requested additional units and coordinated the shutdown of Yonge in the area of the collision, including tasking an officer to stop southbound traffic at Industrial Parkway, one intersection north of where the collision occurred.

[41] Officer Saumure took a statement from Mr. Gardiner in which Mr. Gardiner advised:

(i) he had been travelling southbound on Yonge and was behind the motorcycle;

(ii) he thought the motorcycle may have been travelling at 70 km/hr;

(iii) a grey Volvo came from a side street and tried to make a left hand turn heading northbound onto Yonge;

(iv) the motorcycle veered in the same direction the Volvo had been travelling resulting in the motorcyclist hitting the Volvo at which point the motorcyclist went airborne and hit the pavement.

[42] Officer Saumure was asked on cross-examination why he had left out details from Mr. Gardiner’s statement within his police notes. Officer Saumure testified the officer’s initial report is not the same as his handwritten or a typed copy of his handwritten notes. Instead, the initial report contains information from other sources as a means of summarizing the incident and thus it is expected that there may be additional details in the report that are not found in his handwritten notes.

[43] Officer Saumure testified he approached the female driver who was still seated on the back of the pumper truck. He asked her to produce her driver’s licence, ownership and insurance which were provided to him. The female driver identified herself by way of an Ontario driver’s licence in the name of Cynthia Kirschner. Officer Saumure did not take a statement from her. Ms. Kirschner was upset. She complained of soreness. She had been placed in a neck brace as a precaution. She was transported to Southlake for minor injuries.

[44] Officer Weymouth rode in the ambulance with the motorcyclist. While en route the motorcyclist was declared vital signs absent at which point Acting Sergeant Alberts requested Major Collision investigate.

[45] Officer Saumure continued to preserve the scene and control traffic.

[46] He directed another potential witness, Kyle Machahdo-Silviera, to speak with an investigator from Major Collision. He was also told Yitz Stern, the manager of the condominium, might have captured the collision on camera.

[47] Officer Saumure described that portion of Yonge Street where the collision took place as having no traffic controls for motor vehicles travelling north and south on Yonge Street. There was a stop sign for motor vehicles travelling east and west. There were no obstructions impacting anyone’s view. Orange and black construction barrels were set up along the northbound lanes however there remained two lanes of traffic in each direction.

[48] Officer Saumure described Ms. Kirschner’s motor vehicle as a grey 2018 Volvo XC60 bearing licence plate CVDE 675. It was parked on the north right hand shoulder of Yonge Street. There was damage to the front left side of the engine block area.

[49] Officer Saumure initially believed the vehicle driven by Mr. Brown to be a green sports style motorcycle. He testified it resembled a high-end sport bike. He later learned that it was an e-bike when he conducted a visible inspection and noted there was no exhaust or licence plate. The e-bike had the name Emmo DX Double on it. The Officer did not know whether that was the name of the manufacturer, brand or model of the e-bike.

[50] Officer Saumure testified the e-bike had severe damage consistent with a front end collision.

[51] Based on his observations as well as his conversations with the witnesses, Officer Saumure concluded Ms. Kirschner had been travelling eastbound and Mr. Brown southbound. Ms. Kirschner turned left, and Mr. Brown attempted to avoid the collision but veered in the same direction as the Volvo. The e-bike and Volvo collided and Mr. Brown was ejected from the e-bike.

[52] Arrangements were made for the e-bike and Volvo to be transported to the Elliot’s Towing compound.

THE EVIDENCE OF DETECTIVE/CONSTABLE MOLODYKO

[53] Detective/Constable Molodyko is a collision reconstructionist with the York Regional Police Major Collision Investigation Unit. A brief blended voir dire was held as it had been previously conceded that the officer was an expert in the field of reconstruction.

[54] D/C Molodyko testified as part of his duties he attends collision scenes, gathers physical evidence and then uses forensic tools to map the scene. He also uses a mapping program to create scales. Physical and mechanical examinations are conducted on the motor vehicles. Once all data is gathered a report is prepared. If a video is available it too is gathered. The report is intended to provide an independent opinion as to what caused or contributed to the collision.

[55] The Collision Reconstruction Report was admitted on consent and marked as Exhibit 3.

[56] D/C Molodyko testified that on June 23, 2022, at approximately 10:40 am he received a call pertaining to a motor vehicle collision with injuries at Yonge and Gilbert Drive, Aurora. He arrived at 11:16 am. Other officers were already in attendance, including Officer Saumure and Acting Sergeant Alberts.

[57] D/C Molodyko testified it was a nice, clear day. It was sunny, dry, and 24 degrees. Visibility was good.

[58] At the time of the incident Yonge Street northbound was under construction. Southbound traffic had a through lane and a right turn lane. Northbound traffic had a through lane. There was a temporary lane which had been reconfigured to function as a left turning lane for north and southbound traffic. There was a fresh coat of asphalt on Yonge heading southbound. The southbound through lane remained unchanged and the lanes were straight. The road was slightly uphill but levelled off approximately 95 metres north of the intersection. The speed limit for southbound traffic was 60 km/hr.

[59] Both Gilbert Drive and Butternut Ridge Trail had stop signs. There were lane markings and the stop lines were clearly visible. D/C Molodyko testified the stop sign at Butternut Ridge Trail was properly erected. It was facing east bound traffic. There was a stop line and a crosswalk. The stop sign was not obstructed in any way.

[60] D/C Molodyko testified there were no visibility issues approaching Yonge Street from Butternut Ridge Trail. There was a clear approach to the intersection with no obstructions. Numerous photographs depicting various angles of the intersection were presented to D/C Molodyko; he did not waiver from his testimony that there was a clear, unobstructed view of the road.

[61] D/C Molodyko observed what he initially thought was a motorcycle and later realized was an e-bike lying on its right side, facing north-west in the south-bound lane. Debris from the e-bike was nearby. Just north of the e-bike was a skid mark approximately 8.1 metres long which was consistent with the tires on the e-bike as it tried to brake. There were four visible blood drops where the skid mark ended. Approximately five metres south-west there was a green e-bike lying on its side. There were three scrape marks: one long and two short, which were consistent with the e-bike rotating from the impact as it came to rest. There was a debris field consisting of parts from the e-bike. A grey 2018 Volvo XC60 bearing licence plate number CVDE 675 was stopped in the northbound shoulder of Yonge Street.

[62] On June 27, 2022, D/C Molodyko examined the Volvo. He commented there were no mechanical defects or recalls for the Volvo which could have contributed to the collision.

[63] There was damage to the front windshield, fender, wheel and quarter panel of the Volvo which were consistent with the Volvo having been struck. There was green paint transfer and an indentation on the Volvo which were consistent with it having been struck by the handlebars of the e-bike. There were scrapes and scuff marks consistent with a body sliding across the driver’s side of the Volvo after hitting the windshield and roof.

[64] The Volvo’s tires were in proper condition. The windows were not tinted. The airbags had not been deployed. There were no obstructions.

[65] On June 28, 2022, a vehicle and mechanical examination was conducted on the e-bike. There were no existing mechanical defects on the e-bike that could have led to the collision.

[66] There was extensive damage to the front of the e-bike. The hydraulic fluid reservoir, steering column, handlebars, and front headlight assembly were damaged. The mirrors were broken.

[67] D/C Molodyko testified that the governor had been disconnected thereby enabling the e-bike to go faster than the 32 km/hr permitted by law. The tires were motorcycle tires which also would have enabled the e-bike to go faster.

[68] D/C Molodyko testified that when he saw the 8.1 metre skid mark on the road, he wanted to ascertain which tires had left the skid mark. He stated one could see a skid patch on the front and rear tires of the e-bike which led him to conclude that both front and rear brakes had been applied prior to the collision.

[69] D/C Molodyko testified e-bikes do not have an ABS system; they have hydraulic brake systems. When Mr. Brown suddenly applied the brakes the tires locked and he could not steer the e-bike. Instead, the e-bike continued travelling on the left side of the southbound through lane.

[70] Based on the time of day, D/C Molodyko testified he did not believe either party would have been impacted by the sun. On cross-examination he admitted the glare of the sun could have affected Ms. Kirschner as she was stopped at the stop sign and looking ahead however he went on to state that “she would not have been affected by the glare of the sun if she was turning her head and looking to her left and right (north and south) before commencing the left turn”: Collision Reconstruction Report, page 14, paragraph 19.

[71] At Page 5, paragraph 6 of the Collision Reconstruction Report, D/C Molodyko summarized his conclusion as follows:

6. Based on the scene evidence and witness accounts, it is my opinion that the collision occurred when the grey Volvo XC60 (Volvo) that was attempting to make a left turn from eastbound Butternut Ridge Trail onto northbound Yonge Street, entered into the path of the green Emmo DX e-bike (e-bike) that travelled southbound on Yonge Street. The e-bike struck the front driver’s side of the Volvo causing the rider to be ejected from his seat. The rider slid along the driver’s side roof edge of the vehicle after he hit the vehicle’s windshield and fell to the ground. As a result of the collision, the rider of the e-bike sustained life-threatening injuries and died. The driver of the Volvo was not injured.

[72] After considering and reviewing a number of causative factors consisting of mechanical causation, environmental causation and the human factor, D/C Molodyko concluded:

It was my opinion that the collision was not caused by the environment, roadway engineering, vehicle mechanical issues or the rider of the e-bike. The collision resulted when the eastbound Volvo made a left turn to go northbound and entered into the path of the southbound e-bike. The impact resulted in fatal injuries to the rider of the e-bike. The driver of the Volvo was not seriously injured: Collision Reconstruction Report, page 21, para. 45.

THE EVIDENCE OF DETECTIVE/CONSTABLE PATERSON

[73] Detective/Constable Paterson is a licensed professional engineer. He is a Detective Constable with the York Regional Police Major Collision Investigation Unit with specialized training in collision reconstruction and video analysis. A brief blended voir dire was held as it had been previously conceded that the officer was an expert in the field of time and distance.

[74] D/C Paterson testified he was asked to complete a video analysis of a video obtained by D/C Molodyko. The video was taken from the rooftop of the Delmanor Retirement Home located at 25 Butternut Ridge Trail. The camera was facing northeast and it captured the distance the e-bike travelled prior to the collision.

[75] The Video Time and Distance Report was admitted on consent and marked Exhibit 40. The report itself related to the speed at which the e-bike was travelling and not to the Volvo as the Volvo was not captured on video long enough for D/C Paterson to determine whether it had slowed down.

[76] D/C Paterson testified that in coming to his conclusion, he relied on numerous reports, scans and measurements, including the recreation of the e-bike’s position in the video. He was not told about the presence of a skid mark or about the e-bike braking in any way.

[77] On July 6, 2022, D/C Paterson attended the area of the collision with D/C Molodyko. D/C Molodyko gave him verbal directions as to where the area of the collision occurred.

[78] D/C Paterson testified the road was repainted and a drone was flown. He drove a police Harley Davidson motorcycle to replicate the e-bike. He testified that the speed determination was based on recreating the e-bike’s position in the video. He described how frames had been picked from the video and how the police motorcycle was positioned at the site of the collision by using its proximity to a vertical object.

[79] The video dated June 23, 2022 and marked Exhibit 41 commences at 9:59:54. At 10:05:17 the e-bike can be seen travelling southbound in the through lane. Based on the video, D/C Paterson testified the collision occurred at approximately 10:05:21. The collision occurred in the through lane. D/C Paterson testified the helmet of the driver of the e-bike did not appear to deviate from the straight line heading southbound. By 10:05:28 the Volvo had completed its left turn and was situated in the northbound shoulder in the construction area.

[80] D/C Paterson testified that although the e-bike was travelling in the southbound through lane, nonetheless the margin of error in the analysis was dependent upon the angle from the camera. As he testified, the video made it difficult to ascertain where the e-bike was specifically located in the southbound through lane.

[81] D/C Paterson testified that his analysis demonstrated an average speed over a given distance. In other words, the analysis was not a point in time speed.

[82] D/C Paterson concluded that the e-bike was travelling at an average speed of 59 to 61 km/hr in the 55.5 metres leading up to the collision. He based this on speed calculations from varying points as the e-bike approached the site of the collision:

i. between landmarks 1 and 2 the average speed of the e-bike was between 66 and 68 km/hr;

ii. between landmarks 2 and 3 the average speed of the e-bike was between 61 and 63 km/hr;

iii. between landmarks 3 and 4 the average speed of the e-bike was between 68 and 70 km/hr; and

iv. from landmark 4 to the time the collision occurred the average speed of the e-bike was 40 km/hr.

[83] On cross-examination D/C Paterson testified there have been some changes to the methodologies of video analysis in the last two years. He stated the changes did not give him any concern regarding the accuracy and reliability of his conclusions in his report.

THE EVIDENCE OF DETECTIVE/CONSTABLE PECCHIA

[84] Detective/Constable Pecchia works as an automotive technician and police officer with the York Regional Police Major Collision Investigation Unit.

[85] On June 28, 2022, D/C Hawley asked D/C Pecchia to conduct a mechanical inspection on the 2018 Volvo XC 60 and the 2022 green Emmo DX Double e-bike to ascertain whether something mechanical could have contributed to the collision.

[86] D/C Pecchia prepared a Post Collision Mechanical Examination Report which was marked Exhibit 42 and a Motorcycle Examination Report which was marked Exhibit 43.

[87] D/C Pecchia testified there was nothing mechanically wrong with the Volvo which appeared to be in good working order. There was good tread on the tires, and the braking system and steering were fine. There were no issues regarding the Volvo’s ability to accelerate.

[88] He testified the damage to the Volvo appeared consistent with the collision. There was damage to the driver’s side front fender and door. The driver’s side view mirror was broken and the windshield was shattered. There were no tints on the Volvo and no concerns relating to visibility. The air bags had not deployed.

[89] D/C Pecchia testified there were no manufacturer recalls for either vehicle.

[90] D/C Pecchia testified there were no issues with the e-bike which was also in good condition. He testified the e-bike was equipped with a hydraulic brake system which was in very good condition. He testified there was good tread on the tires of the e-bike. The e-bike could be powered either through the batteries or pedals.

[91] D/C Pecchia testified the governor had been modified so the e-bike could exceed 32 km/hr. He contacted the manufacturer of the e-bike and confirmed that when the e-bike was manufactured it had a governor. A representative of the e-bike company provided him with a video obtained from the internet showing how a person could disconnect the governor. He testified it is a simple exercise which does not require the services of a mechanic.

[92] He testified there was severe damage to the e-bike. Much of the damage was to the front of the e-bike. Specifically, the headlight housing was smashed, and the front forks, left handlebar, rear brake actuator and brake fluid reservoir were all broken and/or bent.

ANALYSIS

[93] Section 130(3) of the Highway Traffic Act, R.S.O. 1990, C. H.8, as amended, states:

Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and who thereby causes bodily harm or death to any person.

[94] The crown submits Ms. Kirschner operated her motor vehicle without due care and attention when she attempted to make a left hand turn at the intersection of Yonge Street and Butternut Ridge Trail when it was not safe to do so and thereby caused Mr. Brown’s death.

[95] The defendant submits she drove with due care and attention. In support of this she appears to rely on portions of the testimony of certain of the crown witnesses:

i. with respect to Mr. Gardiner, that portion of his testimony describing how she was situated at the stop sign, how she looked in both directions and how she proceeded slowly through the intersection;

ii. with respect to D/C Molodyko, that portion of his testimony describing the collision as an angular t-bone collision; and

iii. again with respect to D/C Molodyko, that portion of his testimony stating there was no evidence of reckless driving on behalf of either party.

[96] The test for careless driving is described in the Ontario Court of Appeal decision in R v Beauchamp, [1953] O.R. 422 – 434 (CA) as follows:

It must also be borne in mind that 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.

[97] In 2016 the Ontario Court of Appeal affirmed the legal test and principles surrounding the offence of careless driving in R v Shergill, 2016 ONCJ 163, aff’d [2016] O.J. No. 2394 (CA) when it affirmed the decision of Epstein J. and denied leave to appeal.

[98] As Epstein J. stated, in part, at paragraph 13 in Shergill:

[13] The Ontario Court of Appeal decision in R v Beauchamp (supra) was released in 1952. In many respects it has withstood the test of time. In some respects it remains authoritative in my view. It is often cited in support of the proposition that a standard of perfection is not demanded of a driver. There can be no doubt that Beauchamp’s characterization of the duty upon a driver being the exercise of a reasonable amount of skill and to do what an ordinary prudent person would do in the circumstances is still the law. It is, of course, accepted that Beauchamp correctly characterized the factual standard as constantly shifting, depending on road, visibility, weather, traffic and other conditions in existence and that the standard is an objective one. Beauchamp also stated that it was not enough to support a careless driving conviction that the defendant’s conduct should be shown to fall below this objective standard. It was held that since careless driving was an offence that was quasi-criminal in nature, it must also appear that the defendant’s conduct was of such a nature that it could be considered a breach of duty to the public, and as such deserving of punishment by the state. It is this proposition that requires examination in light of subsequent jurisprudence.

[99] His Honour reviewed the case law since Beauchamp and determined that R v McIver, [1965] 2 O.R. 475 (CA) was still good law. He found that the decision in R v Sault Ste Marie, [1978] 2 S.C.R. 1299 (SCC) “ removed all doubt” that careless driving is a strict liability offence: para. 16. As a result, Epstein J. found that the language in Beauchamp which speaks of conduct being deserving of punishment imported a mens rea component into an offence that is one of strict liability and therefore that portion of Beauchamp was no longer good law: para. 22.

[100] McFarland JA, in dismissing the motion for leave to appeal to the Court of Appeal, found that Epstein J. did not over rule Beauchamp but instead found it to be “authoritative in all but one respect and that is the need for the Crown to prove the conduct giving rise to the charge be “deserving of punishment””: para. 4.

[101] In R v Kinch, Durno J. cites the decisions in R v Pyszko [1998] O.J. No. 1218 (Ont. Ct.J.) and R v Globocki (1991), 26 M.V.R. (2d) 179 (Ont. Ct. J.- Prov. Div) 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: para. 51 and 52.

[102] The defence submits the Court should have regard to Ms. Kirschner’s conduct both prior to and after the collision. The defence submits that Ms. Kirschner came to a full and complete stop at the stop sign and did not execute a rolling stop. She further submits that after the collision Ms. Kirschner pulled her motor vehicle over to the shoulder of the northbound lane, got out of the motor vehicle and made inquiries as to Mr. Brown’s condition. She submits that when you take into account Ms. Kirschner’s conduct there may have been a mistake or an oversight, but this does not meet the test of careless driving.

[103] In terms of post offence conduct, I accept Ms. Kirschner was concerned about Mr. Brown.

[104] That being said, as Epstein J. stated at paragraph 30 in Shergill:

While an established pattern of proper and careful driving prior to an allegation of carelessness may negative any suggestion of a prolonged period of improper driving, it is not at all determinative of the issue at the time the poor driving is alleged to have occurred. If, at the time of the alleged careless driving, the driver displayed a lack of due care and attention or reasonable consideration for other persons using the highway, then the offence is made out. It is of no consequence that for some period prior to the commission of the offence the driving had been proper. Each case must be determined on its particular facts. What is required is an analysis of the conduct of the driver at the time the offence is alleged to have been committed measured against the expectation of the conduct of a reasonably prudent driver.

[105] Drivers of motor vehicles make mistakes. Of that there can be no doubt. Sometimes those mistakes are due to conditions outside that of the driver such as, for example, a sudden blowout of a tire. That is why every case needs to be examined on its own merits.

Application to the Case at Hand

Right of Way

[106] The evidence was that the collision occurred at the intersection of Yonge Street and Butternut Ridge Trail. Yonge Street runs north and south. Butternut Ridge Trail intersects Yonge Street on the west side and Gilbert Drive intersects Yonge Street on the east side. On the date of the collision there were no traffic lights, only stop signs at Butternut Ridge Trail and at Gilbert Drive. Traffic lights were installed after June 23, 2022.

[107] On cross-examination Officer Sandhu speculated the addition of traffic lights may have been as a result of the incident and/or to benefit the residents of the retirement home. I accept that may be true however the issue is what existed on June 23, 2022, and not November 27, 2023, being the first day of trial.

[108] On June 23, 2022, persons travelling southbound on Yonge Street had nothing impeding their right of way. For greater certainty, there was neither a stop sign nor a traffic light. As a result, Mr. Brown had the right of way. Since Ms. Kirschner did not have the right of way, it was her responsibility to ensure she could make her left hand turn when safe to do so.

Road Conditions

[109] Mr. Gardiner testified at the time of the accident the northbound side of Yonge Street was under construction. He testified that it was a clear line of site straight ahead from the bridge on Industrial Parkway looking southbound on Yonge Street. He said that despite the realignment of the lanes, they were straight near the scene of the collision and the construction cones did not cause any obstruction.

[110] Officer Sandhu testified he had a clear line of site for motor vehicles travelling southbound on Yonge Street which is what enabled him to observe the slowdown in traffic and become aware of the collision ahead of him.

[111] Officer Saumure testified there were no obstructions impacting anyone’s view.

[112] D/C Molodyko testified there was no construction on Butternut Ridge Trail where Ms. Kirschner was stopped for the stop sign. He said the lane markings were clearly visible for all lanes.

[113] D/C Molodyko testified there are two southbound lanes however at the time the passing lane had been realigned and become the left turn lane. The southbound through lane remained unchanged and was the lane in which Mr. Brown was travelling.

[114] D/C Molodyko testified that since the southbound lanes were not under construction, he did not believe that the construction was a factor in the collision. He stated there were no issues with visibility for motor vehicles wanting to turn left from Butternut Ridge Trail onto northbound Yonge Street and that any moving traffic would have been readily identifiable.

The E-Bike

[115] A large part of this trial was given over to the modifications of the e-bike, what that meant and how those modifications may have contributed to Mr. Brown’s death.

[116] The defence submits that the manner in which the e-bike was being operated, where it was situated on the road and the fact that it t-boned the Volvo, suggests the collision was caused by an improperly mechanically operated e-bike. The defence further submits that the e-bike should never have performed in the way it was being operated and therefore looking at the totality of the evidence one cannot conclude Mr. Brown ought to have been operating the e-bike like a motorcycle. Instead, Mr. Brown should have been operating the e-bike like a bicycle.

[117] The difficulty with this submission is that it delves into issues outside the parameters of this Court. On occasion I had to exercise my trial management power to attempt to curtail unnecessary and prolix cross-examination on the issue of contributory negligence. Contributory negligence is a civil law concept and not something dealt with in a regulatory proceeding.

[118] On occasion the facts of a case may give rise to both civil and criminal proceedings or, as here, civil and quasi-criminal proceedings. The offence of careless driving causing death under the Highway Traffic Act is a regulatory offence and the proceeding is quasi-criminal in nature; it is not a civil matter. While the evidence disclosed significant overlapping issues pertaining to Mr. Brown’s driving and the fact that today there is a traffic light (whereas at the time of the collision there was none), nonetheless this was not a civil trial and the issue of contributory negligence was not germane. For greater certainty, the focus is on the defendant’s driving at the time of the incident that gave rise to the collision, not issues pertaining to civil liability: Kinch, supra at para. 56.

[119] I accept the governor had been removed from the e-bike thereby enabling it to be driven at a higher rate of speed than 32 km/hr.

[120] I also accept that e-bikes are equipped with a hydraulic braking system as opposed to ABS brakes and that when Mr. Brown heavily applied the brakes, the e-bike slid along the road as the wheels locked. As D/C Molodyko testified, the e-bike was veering to the left at the time it started to brake as Mr. Brown may have tried to steer to the left to go around the Volvo.

[121] I further accept that the e-bike looked like a small motorcycle. Officers Sandhu and Saumure both testified they initially thought the e-bike was a motorcycle. D/C Molodyko testified the physical appearance of the e-bike made it look like a motorcycle, including the fact it had motorcycle tires. He stated that the e-bike had the proper mechanical parts of an e-bike.

[122] Mr. Gardiner and D/C Molodyko testified an e-bike is expected to travel in the right hand lane closest to the shoulder. Mr. Brown was travelling in the southbound through lane; Mr. Gardiner believed him to be travelling in the centre of the lane whereas D/C Molodyko testified Mr. Brown was travelling closer to the left part of the centre lane as that was the angle of the skid marks.

[123] As D/C Molodyko testified, it would not have made a difference to Ms. Kirschner’s visibility if Mr. Brown had been driving closer to the curb or where he was.

[124] Mr. Gardiner testified Mr. Brown was travelling approximately 60 km/hr as he was pacing him. This was the posted speed limit. The Video Time and Distance Report prepared by D/C Paterson concluded Mr. Brown travelled at an average rate of speed of 59 – 61 km/hr in the 55.5 metres leading up to the collision. D/C Molodyko testified that even with the governor removed, Mr. Brown was travelling at the speed limit for the flow of traffic.

[125] Mr. Gardiner and D/C Molodyko testified there were no other vehicles immediately in front of or behind Mr. Brown. There were no obstructions to visibility. According to D/C Molodyko, Mr. Brown’s headlights were on which would have made him more visible.

Left Turn – Fail to Afford Reasonable Opportunity to Avoid a Collision

[126] In this case the allegation of careless driving causing death is in relation to the left hand turn made by Ms. Kirschner.

[127] The defendant submits the damage to the Volvo indicates that the Volvo was in the intersection and crossing the southbound lane when it was t-boned by the e-bike. The defendant further submits she did not cut off the e-bike. In support of this the defendant submits that had the Volvo cut off the e-bike the damage would have been more to the front of the vehicle rather than on the driver’s side.

[128] D/C Molodyko testified the collision was akin to an angled t-bone collision whereby the Volvo was on an angle and the e-bike straight. He further testified the collision occurred in the southbound lane.

[129] Section 141(5) of the Highway Traffic Act states:

No driver or operator of a vehicle in an intersection shall turn left across the path of a vehicle approaching from the opposite direction unless he or she has afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision.

[130] A driver making a left hand turn has the duty to ensure the turn can be made in safety. Here Ms. Kirschner was making a left hand turn into live lanes of traffic. Those lanes had the right of way; she did not. This required her to take appropriate precautions to ensure the road was free of oncoming traffic prior to commencing her left hand turn.

[131] While there had been a realignment of the lanes and the northbound lane that she was turning into was under construction, the southbound lane that she had to travel across was not. As the person making the left hand turn, it was Ms. Kirschner’s duty to ensure the turn could be made in safety.

[132] Exhibit 24 filed during the trial is a video retrieved from the Delmanor Retirement Home. D/C Molodyko testified the video depicts the Volvo entering the video frame at 10:04:57. At that point the Volvo was travelling eastbound on Butternut Ridge Trail, approaching Yonge Street. The Volvo was in the left turn lane of Butternut Ridge Trail. At 10:05:04 the Volvo is almost at the intersection of Butternut Ridge Trail and Yonge Street. The Volvo was still in the left turn lane. At 10:05:18 the e-bike appears in the video frame. There is nothing immediately behind or in front of the e-bike as it travelled southbound on Yonge Street. The collision occurred at 10:05:20 in the southbound through lane of Yonge Street just before the intersection.

[133] A reasonably prudent driver would exercise a heightened state of awareness to what is in the immediate path of their motor vehicle or in the path that their vehicle will be travelling as it moves through its turn. The fact that Ms. Kirschner did not have the right of way and was travelling through lives lanes of traffic to complete her left hand turn into a northbound road that was under construction, made it even more imperative that she act as a reasonably prudent driver and take note of and adjust for any southbound traffic directly in the path of her motor vehicle.

[134] Mr. Gardiner’s evidence was this did not happen. Ms. Kirschner did not stop. She did not swerve. She did not brake. She did not accelerate to attempt to get out of the way of the e-bike as it approached her motor vehicle. I heard no testimony that the Volvo’s horn was ever applied.

[135] This is consistent with D/C Molodyko’s testimony that there was no indication of braking or acceleration on the tires of the Volvo, or that the Volvo had swerved to avoid the collision.

[136] It is also consistent with Exhibit 41 which does not depict the Volvo appearing to slow down, swerve or brake.

The Sun

[137] It is not disputed that the day was sunny, clear and dry.

[138] D/C Molodyko testified the sun would have been predominantly in the east at the time of the collision. He acknowledged the glare of the sun could have affected Ms. Kirschner as she was stopped at the stop sign looking eastward however she would not be affected by the sun when she turned her head to look north and south, and when she travelled north-east to make her left hand turn. He concluded that sun was not a factor in the collision.

[139] If, however, Ms. Kirschner’s vision was impacted by the sun, then she should have ensured her visual field was clear and if there was a concern she should have remained at the stop sign until she was confident she could clearly see the road. For greater certainty, a prudent driver, if the sunlight were in their eyes, would have acknowledged it was unsafe to make the left hand turn.

Opinion Evidence

[140] Mr. Gardiner gave opinion evidence regarding e-bikes and whether Mr. Brown could have avoided the collision. I will deal with each, below.

[141] The rule regarding the opinion of a layperson is that it is proper where it is rationally based on perception and is needed to understand the evidence of the witness: R v Graat, [1982] 2 S.C.R. 819.

[142] With respect to e-bikes, Mr. Gardiner was candid in admitting that he is not a fan of them and that it is a pet peeve of his how fast e-bike drivers go.

[143] Mr. Gardiner testified he has been driving motorcycles since he was 16 years old. He understands the difference between a motorcycle and an e-bike.

[144] Mr. Gardiner testified that an e-bike owner and/or driver can disconnect the governor so that an e-bike can travel above the 32 km/hr it is supposed to travel at. When the governor is disconnected the e-bike can travel 60 km/hr.

[145] According to Mr. Gardiner an e-bike is supposed to operate at 30 – 32 km/hr. When it is operated at that speed, the driver is supposed to travel on the curb side of the road. An e-bike is not built to be driven like a motorcycle and is not built to be driven in the middle of the road.

[146] Mr. Gardiner testified he believed he had previously seen Mr. Brown operating his green e-bike on Yonge Street in the south part of Aurora and in Oak Ridges. On the date in question Mr. Brown was, according to Mr. Gardiner, obeying the traffic laws. While Mr. Brown was operating his e-bike in the centre of the southbound lane on Yonge Street, and while this was not something Mr. Gardiner would have done, nonetheless Mr. Brown was wearing a helmet and driving at or near the posted speed limit. Mr. Brown stuck to his lane and was not weaving in and out of traffic.

[147] I do not find that Mr. Gardiner’s admitted antipathy towards e-bikes and their operators negatively impacted on his testimony. For greater certainty I accept his testimony.

[148] That being said, I have some difficulty with his opinion that Mr. Brown could have veered to the right to avoid the collision. It is always easy to criticize in hindsight however Mr. Gardiner could not know what was going through Mr. Brown’s mind immediately prior to the collision. The Court was told Mr. Gardiner observed Mr. Brown put his feet down, ostensibly to try to somehow stop the e-bike. As such I put little reliance on his opinion that Mr. Brown could have veered to the right to avoid the collision.

[149] D/C Molodyko testified Mr. Brown would have had over one second to react between the time his wheels locked and the collision itself. According to D/C Molodyko the brakes were applied and the wheels of the e-bike locked. As he testified, due to the laws of physics you either come to a stop or slide. As he further explained, as a rider when presented with a threat one has a choice: to swerve or to brake. There is no right or wrong answer. Mr. Brown decided to brake. No one knows what was in Mr. Brown’s mind when he made that decision. Once the brakes were applied the e-bike began to slide towards the left of the southbound through lane and Mr. Brown was ejected from his seat.

[150] D/C Molodyko was asked whether the e-bike could have avoided the collision. He testified the skid distance was eight metres and the e-bike was 10 – 11 metres north of the collision when the Volvo began to turn. From his perspective Mr. Brown would not have had a lot of time to react.

[151] D/C Molodyko was then asked whether the result would have been similar had the e-bike been a motorcycle. He responded yes.

[152] On cross-examination he was asked if the e-bike had been travelling at 32 km/hr whether the collision could have been avoided. D/C Molodyko indicated at 32 km/hr Mr. Brown would have stopped shorter.

[153] On re-examination he testified that if the e-bike had been a motorcycle, Mr. Brown would also have been ejected.

CONCLUSION

[154] The day of the accident was clear and sunny. Mr. Brown was travelling in the southbound through lane on Yonge Street. He had the right of way. The evidence was that there were no obstructions that could have impeded Ms. Kirschner’s vision. The sun would not have been a factor as she would not be looking in the direction of the sun when she initially turned her face to look north and south, and when she proceeded north-east to make her left hand turn. Ms. Kirschner’s Volvo was in good mechanical condition. Ms. Kirschner had to enter the southbound live lane of traffic to make her left hand turn. The only conclusion the Court can come to is that Ms. Kirschner did not see the e-bike as she never stopped, swerved or accelerated to get out of the way. Further, there was no evidence that her horn was ever applied.

[155] This was a devastating incident for Mr. Brown’s family and friends, as well as for Ms. Kirschner and her family.

[156] On the basis of the evidence heard and the documentary evidence filed, I find that Ms. Kirschner’s conduct fell below the standard expected of a reasonably prudent driver in the circumstances. I therefore find the actus reus of the offence of careless driving has been made out.

[157] It appears that the defence is suggesting the modifications to the e-bike rendered Mr. Brown’s e-bike so unusual that a prudent driver would not have expected or could have been expected to anticipate how his vehicle operated. I do not accept this argument because the position and speed of the e-bike, while perhaps unusual for an e-bike, would have been unexceptional for a motorcycle and motorcycles are a common sight on the road and something a prudent driver should be aware of.

[158] Further, I cannot find there was a mistake or oversight on behalf of Ms. Kirschner. Absent any testimony from her, I cannot come to any conclusion as to what her error or oversight might have been. No evidence is before the Court either from the evidence adduced by the Crown and in the absence of testimony by Ms. Kirschner, I am unable to find the existence of due diligence or any affirmative common law defence.

[159] I find that the only reasonable inference to be drawn from the collision was that Ms. Kirschner was operating her motor vehicle on a highway without due care and attention. Having come to this conclusion I find Ms. Kirschner guilty of the offence as charged.

Released: March 25, 2024 Signed: Justice of the Peace R.S. Shousterman