ONTARIO COURT OF JUSTICE
Date: 2024-01-16 Court File No.: Newmarket 4960 999 21 26670000 00
Between:
HIS MAJESTY THE KING
— AND —
Madison P. BIGGAR
Before: Justice of the Peace T. Rotondi
Oral Reasons for Judgment given on: May 15, 2023 Written Reasons for Judgment released on: January 16, 2024
Counsel: Ramandeep Gill, counsel for the prosecution Dennis J. Reeve, counsel for the defendant Madison P. Biggar
JUSTICE OF THE PEACE T. ROTONDI:
[1] Madison Biggar is charged with the offence of careless driving under section 130 (3) of the Highway Traffic Act.
[2] 130 (3) reads: (3) Every person is guilty of the offence of driving carelessly who drives a vehicle or streetcar 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.
[3] This is a case that involves a terrible tragedy, the death of a young man who was riding his motorcycle on a sunny, warm day on June 28, 2021. The Court heard that he had purchased the motorcycle not long before the accident occurred.
[4] The Court also recognizes the impact this has had on the defendant Madison Biggar who at the time of the accident was 17 years old, had graduated from a G1 to G2 licence seven days prior. During her testimony she was visibly distraught and indicated that she has been suffering from PTSD since the accident.
[5] The focus of this trial is to adjudicate on the case presented by the prosecution that Madison Biggar committed the offence of careless driving by making a left hand turn from Leslie onto Ravenshoe Road.
Evidence
[6] The agreed statement of Facts (ASF) marked as Exhibit #1 indicates there is no dispute the defendant, Madison Patricia Biggar, was operating a Grey 2015 Ford Escape SUV motor vehicle on June 28, 2021.
[7] The deceased party in this case, Remington Taylor, was operating a Honda Motorcycle.
[8] Both parties were involved in a collision that occurred in Georgina at the intersection of Ravenshoe Road and The Queensway South.
[9] Remington Taylor suffered life threatening injuries and was transported via air ambulance to Sunnybrook Health Centre.
[10] As a result of the collision, Remington Taylor suffered a severed carotid artery in his neck, which led to a stroke. Remington Taylor was subsequently pronounced deceased on July 2, 2021, at 22:40 hrs at Sunnybrook Health Centre.
Prosecution Witness
[11] The prosecution called five witnesses.
[12] Constable Tamara Child YRP was one of the first officers on the scene.
[13] Detective Constable Molodyko, an expert in reconstruction whose evidence includes the findings of a Collision Reconstruction Report submitted as Exhibit #12.
[14] In addition, three civilian witnesses that gave evidence of their observation of the event.
First Independent Witness
[15] Kevin Grice testified that on June 28, 2021, he was driving a pickup truck traveling southbound on Queensway approaching the traffic light on Ravenshoe Road.
[16] He was in the left turn lane ready to make a left-hand turn onto Ravenshoe Road when he first observed the motorcycle traveling northbound on Queensway drive in the centre lane.
[17] He preceded and successfully made the left-hand turn. He stated that as he was making the turn, the motorcycle appeared to be closer than he expected.
[18] He continued observing the motorcycle from his rear view and side mirrors after completion of the turn.
[19] As the motorcycle passed, he saw it impact with the silver SUV that was directly behind him making the left turn immediately after him. He estimated the SUV to have turned about 10 to 15 seconds after him.
[20] The impact was on the front right corner of the SUV where the front wheel of the motorcycle hit the right fender of the SUV.
[21] He couldn’t see the traffic light after completing the turn but believed the light was still green as it had recently changed.
[22] The driver of the motorcycle flew over the SUV and landed in the back left side of the SUV. The SUV then pulled off to the side of the road and stopped 30 meters past the intersection. The motorcycle was in the southbound intersection.
[23] He observed the front passenger side airbags ejected on the SUV.
[24] He and his wife, the passenger in his vehicle, tried to assist the motorcyclist. His wife is a paramedic and administered first aid.
[25] The cyclist was unconscious, had lacerations to his arms, was bleeding out of his mouth. He loosened the strap of the helmet, to ease the breathing as it appeared he was having trouble breathing. He described the cyclist as average height and weight, approximately 35 years old wearing jeans and a black full-face helmet laying on his left side.
[26] In his estimation, the motorcycle appeared to be destroyed with front end damage beyond repair. Everything broken in the back, pieces and debris of the motorcycle were on the road.
Second Witness
[27] Ms. Dan Zhou testified that she works for the Region and was driving a York Region vehicle. She was travelling westbound on Ravenshoe Road approaching the intersection.
[28] She observed the cyclist when he flew in the air in front of her.
[29] The motorcyclist was thrown, in her estimation, 10 feet or so. There were no cars in front of her when it happened.
[30] She did not observe the collision, she just saw the motorcyclist in the air and hit the ground.
[31] She pulled over slowly and observed he was unconscious and was being attended by a woman performing first aid.
[32] She had no interaction with the driver of the SUV.
Third Witness
[33] John Webster was driving his motorcycle southbound on Queensway drive moving to the left turn lane to get ready to turn left onto Ravenshoe Road.
[34] He described the motor vehicle involved in the collision as a white motor vehicle that was behind the pickup truck and turned left as he was pulling into the left turn lane.
[35] He heard a bang and saw something in the air that hit the ground in front of him. He thought it was a garbage bag falling out of the pickup truck, then he saw it was a body.
[36] The traffic light was green four to five seconds before he heard the bang.
[37] The motor vehicle involved in the collision had turned left and was parked on the side of the road on Ravenshoe Road.
Detective Constable Bogdan Molodyko #1970 YRP
[38] Detective Molodyko is a qualified expert in collision reconstruction.
[39] Admitted as Exhibit #5 is the curriculum vitae of Detective Constable Molodyko.
[40] The collision reconstructionist mandate is to investigate collisions that involve life threatening injuries.
[41] Their mandate is to identify evidence, process evidence, mapping of the scene with a drone, conduct motor vehicle exams and mechanical exams.
[42] The Collision Reconstruction Report is marked as Exhibit #12 and is a report based on a fair and unbiased opinion.
[43] He testified that on June 28, 2021, at 9:17 A.M. he was advised by Detective Cadieux of York Region Police to attend the scene and learned a male was unconscious and his injuries were life threatening.
[44] He arrived at 11:00 A.M. at the intersection of Leslie Street and Ravenshoe Road East.
[45] He described the intersection of Leslie Street and Ravenshoe where the collision occurred.
Leslie Street
[46] Leslie Street is a five-lane highway consisting of two lanes northbound and two lanes southbound. As you approach the intersection there is a left turn lane for each direction of travel. There is some elevation for northbound travel, but it levels as one gets closer to the intersection.
[47] The speed limit on Leslie is 70 kph turning into 80 kph south of the intersection.
Ravenshoe Road
[48] Ravenshoe Road is a five-lane highway which includes three lanes for eastbound traffic, a right turn lane, left turn lane, and a thorough lane.
[49] The westbound lanes are dedicated thorough lanes, consisting of one left lane, and one right lane.
[50] The speed limit on Ravenshoe Road is 60 kph.
[51] On Leslie Street and Ravenshoe Road, the asphalt is dry and in good repair. The lanes are clearly marked. The intersection is controlled by a traffic light, with stop lines clearly marked and a pedestrian crosswalk clearly marked.
[52] The elevation on Queensway South is straight with slight elevation not as significant as the elevation in the north. Traffic signals reported that the traffic lights were in good working order.
[53] Detective Constable Molodyko observed a blue motorcycle at the intersection on the north-east quadrant in a puddle of vehicle fluid on the north passing lane on Leslie Street.
Examination of Blue Motorcycle Damage at the Scene
[54] In his examination of the motorcycle, he found damage to the entire front, the right handlebar, and right-side mirror.
[55] Visible scratches on the fuel tank and storage compartment, as well as scrapes on the right front and rear.
[56] There were broken parts fragments, a backpack, and helmet on the road.
[57] There were no pre-existing mechanical defects identified in the motorcycle that would have contributed to the collision.
Examination of Grey Ford SUV at the Scene
[58] The grey Ford SUV was parked on Ravenshoe Road 35 meters east of the intersection on the curb lane facing east.
[59] Damage observed was on the passenger side door fender with a big gash mark of blue paint on the door.
[60] The mirror was broken, and blood was visible.
[61] There were dark smear marks on the A, B, and C pillars, a broken antenna, some scratches on the roof, smear marks on the windshield and the passenger side railing.
[62] Side airbags on both driver side and passenger side were deployed.
[63] The interior was clear with no obstruction of the view for the driver.
[64] He found no marks on the road of either the motorcycle or the SUV motor vehicle stopping.
[65] After the observations he spoke to Acting Sergeant Aho badge # 1721 who was at the scene and advised that the Ford was making a left turn on to Ravenshoe Road when it was struck by a northbound motorcycle.
[66] Detective Molodyko observed most of the damages were on the front and right side.
[67] He began processing the scene with the assistance of Detective Constable Hawley.
[68] The findings on the SUV were similar to what was observed at the scene. The evidence of blue paint transfer that came from the motorcycle was consistent with the colour of the motorcycle.
[69] There were no mechanical defects identified in the SUV that would have contributed to the collision and no safety recalls on the vehicle.
[70] A search warrant was executed of the airbag control module (ACM) on the Ford Escape SUV.
[71] The airbag control module captures internal parameters of the vehicle, it captures the speed, the throttle, the breaking percentage, whether the brakes were on or off or if seat belts were buckled or unbuckled, and whether the airbags were deployed.
[72] It also classifies either a front collision or side collision, in this case it was classified as a side collision impact.
[73] The information gathered has been tested and proven in court to be accurate.
Exhibit No. 12: Collision Reconstruction Report
[74] The airbag control module captured the speed of the Ford vehicle from five seconds prior to the collision to be normal driving behaviour up until one to two seconds prior to the collision where it recorded to be moving at 30.7 kph and reduced incrementally until time 0 which recorded 28.7 kph indicating the speed it was travelling at the time of impact.
Determine the Speed of the Motorcycle
[75] Based on the data collected the speed of the motorcycle could not immediately be determined.
[76] During the investigation it was discovered that video evidence was available that captured the motorcycle traveling northbound on Leslie Street just prior to the collision.
[77] The video was used to determine how fast the motorcycle was travelling by analyzing the frames per second recorded, and analyzing the distance.
[78] Based on the analyzation of all the factors, Detective Constable Molodyko determined that speed was not a factor in the collision.
Testimony of Madison Biggar
[79] Madison Biggar testified that on June 28, 2021, she was taking her niece to daycare. She was 17 years old at the time, had received her G2 licence seven days prior to the collision.
[80] She was driving her niece to daycare because her mother has some health issues and wasn't feeling well that morning, so she asked her to take her niece Layla to her daycare in Aurora.
[81] She was driving her mother's vehicle described as a Ford SUV. She indicated it was a normal sunny day.
[82] She stopped at Tim Horton’s to get breakfast before heading to Aurora to her daycare.
[83] She was traveling southbound on Queensway approaching the intersection of Ravenshoe Road getting ready to make a left had turn.
[84] The traffic light was green, a pickup truck in front of her was also making a left-hand turn.
[85] The vehicle in front of her turned left and completed his turn.
[86] Her testimony is that prior to making the turn she stopped and looked three times. She looked for pedestrians as well as for oncoming traffic to see if it was clear to go.
[87] When she knew it was clear she continued to make the turn and when her vehicle was hit, she immediately went unconscious.
Under Cross-Examination
[88] She stated that she did not make a full stop but yielded.
[89] She testified that she did not see the northbound motorcycle, her exact words, as repeated on several occasions were that “he was not there.”
[90] She stated that she was in driving school for a year and knows to look back and forth and for oncoming traffic before completing a left-hand turn.
[91] She repeated on several occasions that she looked three times, and the motorcycle was not there.
[92] She testified that after the collision she didn't know what had hit her until she got out of her car after the accident.
[93] She stated she was trying to remember but didn't have much of a memory of that day. She has been suffering from PTSD since the accident.
[94] She was not on her phone at the time and was not distracted. She was listening to music from her phone playlist. Her niece was on her iPad and it did not cause her distraction from driving.
[95] She could not recall how she completed the turn after the collision and parked the vehicle safely on the side of the road on Ravenshoe Road.
[96] She said after being hit she went unconscious. She stated, “I didn’t physically make my turn myself… the turn was made for me.”
[97] When she woke up, she saw smoke, she checked on her niece to make sure she was okay and asked her to unbuckle herself and come to her so they could get out of the vehicle through her door.
Analysis
[98] In analyzing the evidence before me in this proceeding, I must apply the principles enunciated in R. v. W.(D.), [1991] 1 S.C.R. 742 and the model of instruction to be used when determining whether the evidence establishes the guilt of an accused beyond a reasonable doubt. In the said model the jurist in R. v. Lifchus, [1997] 3 S.C.R. 320 defined the term “reasonable doubt” in part as follows:
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely to be guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
[99] The uncontradicted evidence has been established and submitted in the Agreed Statement of Facts.
[100] The conflicting evidence is the issue of whether the defendant’s driving behaviour at the material time established is a sufficient departure from the standard of a prudent and reasonable driver.
[101] This Court accepts the evidence of Detective Constable Molodyko the reconstructionist that excessive speed was not a factor in the collision.
[102] The detail examination of the Ford SUV found no obstruction of view on the windshield.
[103] No mechanical issues and no safety recalls noted that could have caused the collision.
[104] The event data recorder determined that at the time of the collision the Ford SUV was in motion while making the left turn and travelling 28 kph at the time of impact.
[105] Detective Constable Molodyko examined the motorcycle’s speed while travelling northbound and it is his expert evidence that the motorcycle was not traveling in an excessive rate of speed.
[106] The three independent witnesses testified, and it was confirmed by DC Molodyko in his report that traffic was light was green, it was a sunny clear day, the road was paved with asphalt and in good repair with lanes clearly marked and no obstruction to their view.
Madison Biggar
[107] Madison Biggar’s defence to the charge can be summarized by her testimony that the motorcycle was not there.
[108] The evidence is undisputable that the motorcycle was there. It collided with the motor vehicle she was operating. This Court can only surmise that what she meant was that she didn’t see the motorcycle.
[109] Mr. Grice who was operating the pickup truck directly in front of Ms. Biggar, testified he saw the motorcycle and had enough time to make the turn safely. He testified that as he was making the left-hand turn, he observed that the motorcycle appeared to be going faster than he expected.
[110] He stated that the light had turned green just prior to his turn so he believed it was still green when the SUV behind him turned as such it would have been green for the motorcyclist who had the right of way.
[111] This Court finds Madison Biggar is not reliable or credible. Her testimony included inconsistencies stating that she stopped before turning and later said she didn’t make a full stop, but yielded, looked, and believed it was clear to turn.
[112] She stated her memory was not clear on details on what happened prior to the collision.
[113] Her testimony was that after the impact she went unconscious and somehow her vehicle continued making the left-hand turn and parked safely on the side of the road on Ravenshoe Road.
[114] The Court has reviewed the cases submitted: R. v. Beauchamp, 1952 ONCA 60 R. v. Kinch, 2004 ONSC 11464 R. v. Lattimore, 2013 ONCJ 578 R. v. Shergill, 2016 ONCJ 163 R. v. Wong, 2013 ONCJ 112 R. v. Lifchus, [1997] 3 S.C.R. 320
[115] In R. v. Shergill, 2016 ONCJ 163 makes it clear that careless driving is a strict liability offence where a defence of due diligence can be applied.
[116] In R. v. Beauchamp, 1952 ONCA 60 it is articulated the standard to be applied to the driving conduct to be as determined in the evidence.
[117] The Ontario Court of Appeal states that the test of careless driving is “not whether, if the accused had greater skill or care, the accident would not have happened.” It is whether it is proven beyond a reasonable doubt that the accused, considering the circumstances, of which a driver exercising ordinary care should have been aware, failed to use care and attention or to give other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances.
[118] In the case before this Court the careless driving is in relation to the left turn made by Madison Biggar.
[119] 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 she or he has offered a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision.”
[120] R. v. Lattimore, 2013 ONCJ 578 is a similar case to this involving a left turn driver hitting a pedestrian.
[121] The jurist in that case states a reasonably prudent driver would be exercising heightened state of alertness to what is in the immediate path as it is about to make that left turn.
[122] Such a driver making that left turn should examine anything approaching in its path and adjust accordingly for any vehicle that is approaching the path of their left turn.
[123] The evidence is clear that Madison Biggar did not provide a reasonable opportunity to the driver of the motorcycle that was approaching from Leslie Street.
[124] The motorcycle driver was travelling northbound going straight through the intersection on Leslie Street. The traffic light was green giving him the right of way.
[125] Madison Biggar attempted to make a left hand turn immediately following the tow truck in front of her.
[126] She did not exercise due diligence and afford the opportunity for the motorcyclist to continue and carry on through the intersection before making the turn. Had she done so the collision would not have occurred.
[127] This Court finds that the prosecution has made its case beyond a reasonable doubt and Madison Bigger has not made out a due diligence defence on a balance of probabilities.
[128] The Court enters a finding of guilt.
Released: January 16, 2024 Signed: Justice of the Peace T. Rotondi