Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 10 25 COURT FILE No.: City of Hamilton INFORMATION No: 000808

BETWEEN:

HIS MAJESTY THE KING ex rel Hamilton (City)

— AND —

Madeline DI SANTO

Before: Justice of the Peace K.W. Bouchard

Heard on: September 19, 2024 Decision delivered orally on: October 25th, 2024 Written reasons for Judgment released on: October 25th, 2024

Counsel: S. Ramage.............................................................................................. Municipal Prosecutor D. Paquette....................................................... Counsel for the Defendant M. DI SANTO

JUSTICE OF THE PEACE K.W. BOUCHARD:

Introduction

[1] Ms. Madeline DI SANTO (the defendant) is charged with one count of careless driving causing bodily harm or death, contrary to section 130(3) of the Highway Traffic Act (HTA). It is alleged that the defendant drove carelessly on April 17th, 2023 in the City of Hamilton in the vicinity of Winterberry Drive and Mud Street, thereby causing bodily harm to Althea MAGUYON (the complainant). Proceedings were commenced by laying an information under part III of the Provincial Offences Act (POA), which was sworn on June 12th, 2023.

[2] The defendant pled not guilty. I presided at the one day trial on September 19th, 2024. After evidence and submissions were complete the trial was adjourned on consent, to October 25th, 2024 for a decision. For the reasons contained herein I find that the prosecution has not proved the actus reus of s.130(3) beyond a reasonable doubt. Based on that finding, there was no requirement to make a finding whether a due diligence defence was proven on a balance of probabilities. Therefore, the single count is dismissed.

The Trial

[3] The majority of the facts in this trial are not in dispute. Both parties accept that careless driving causing bodily harm is a strict liability offence, and that this issue is not in dispute. Both parties agree that on April 17, 2023 at approximately 1130 pm at the intersection of Winterberry Drive and Mud Street in the City of Hamilton that a motor vehicle driven by the defendant attempted a left turn moving south to north from Winterberry Dr to Mud St (before it transitions into the Lincoln Alexander Parkway). The defendant’s vehicle then collided with the complainant in the vicinity of the north-most lane of Mud St and the pedestrian crosswalk. The complainant was subsequently transported to Hospital where she recovered from a cranial injury, shoulder and back injuries over the next 3 weeks. The complainant indicated under oath that she still suffers memory issues and shoulder and back pain, it is not disputed that the complainant did suffer bodily harm as a result of the collision. The facts outlined above are not in dispute, what remains in dispute is whether the defendant drove carelessly, thereby being at fault for the collision.

[4] The position of the prosecutor was that the defendant drove carelessly, and the facts that would lead to that conclusion are: 1) the defendant’s vehicle turned into the north-most lane of Mud St (testimony from Mr. Austin Haja, hereinafter the bystander) when they had an obligation to pass immediately to the right of the centre line of the intersecting highway.to meet the requirements under s.141(6) of the HTA 2) that there is inconsistent evidence that the defendant had a flashing green (advance green) prior to entering the intersection (conflict in testimony of bystander and complainant and voluntary statement by defendant) 3) that the complainant did proceed north along Winterberry Dr within the pedestrian crosswalk (testimony from complainant) 4) that the complainant waited for the pedestrian crosswalk light to be illuminated (testimony from complainant), which would not be possible if the green light was flashing for the defendant 5) If the court accepts the complainant was within the crosswalk that the defendant ought to have seen the pedestrian in the crosswalk and yielded the right of way 6) that the complainant ought to have been visible to the defendant given the artificial lighting present in the intersection and crosswalk, and that complainant was visible to the bystander (testimony from bystander) 7) that the defendant’s conduct as a driver fell below the standard of a reasonably prudent driver by taking the left hand turn at excessive speed (testimony from bystander).

[5] The position of defence counsel was that the defendant was driving with due care and attention, and with reasonable consideration for other persons using the highway. They respond to the submissions of the prosecution by stating that: 1) it is not relevant nor dispositive of the case at bar whether the defendant affected a left turn into the south-most or north-most lane, what is relevant is whether defendant drove carelessly and whether the standard fell below that of a reasonably prudent driver given all the circumstances 2) that there was evidence from a voluntary statement from the defendant entered into evidence, on consent, without a voir dire, (testimony from Officer Burgess, hereinafter officer 1), that the defendant had a flashing green (advance green) prior to entering the intersection 3) that there is doubt the complainant was in the crosswalk, instead the complainant was 10 feet to the west of the crosswalk when moving north along Winterberry Dr (testimony from the bystander) 4) that there is doubt that the complainant advanced across the crosswalk with a pedestrian crossing sign (testimony from complainant); instead there is circumstantial evidence that they advanced during a flashing green light (voluntary statement from defendant) 5) that the defendant had the right of way, likely advancing with a flashing green and had no reason to expect a pedestrian in the crosswalk (voluntary statement from defendant) 6) that there is doubt whether the complainant was visible to a prudent driver given her dark clothing (testimony of bystander and complainant) 7) that the prosecution has not proven that the defendant’s conduct fell below the standard of a reasonable and prudent driver given all the circumstances; specifically there is evidence from the police reconstructionist that the lack of visible damage to the defendants vehicle, nor markings on the road, indicate that this was a low speed collision showing that she was driving prudently and cautiously (testimony from Officer Cruikshanks, hereinafter officer 3).

The Issues

Central Issues

[6] The defendant did not testify in this trial as is their right. However, a voluntary statement was entered into evidence, through officer 1. Therefore, any inculpatory and exculpatory evidence will be considered, from this statement, for the actus reus and a due diligence defence.

[7] Three central questions arise from the evidence presented at trial, which will be dispositive of proving that the defendant drove carelessly, which is required to prove the actus reus:

i) Did the defendant affect the left turn from Winterberry Dr to Mud St at an unreasonable rate of speed, given all the circumstances?

ii) Did the defendant turn left into the incorrect lane pursuant to s.141(6) of the HTA, on Mud St, thereby not giving due care and attention or without reasonable consideration for other persons using the highway?

iii) Said another way, can it be deemed, pursuant to s.130(5) of the HTA, that the defendant did drive without reasonable consideration for other persons using the highway. Did they drive in a manner that may have limited their ability to prudently adjust to changing circumstances on the highway on April 17th, 2023?

Ancillary Issues

[8] Ancillary issues in dispute that may impact a finding on the actus reus include:

i) Whether the defendant’s vehicle approached a flashing green pursuant to s.144(13) of the HTA or a solid green pursuant to s.144(14) of the HTA.

ii) Whether the complainant crossed south to north along Winterberry Dr within the pedestrian crosswalk as described under s.140(1) HTA or whether the complainant was outside the crosswalk.

iii) Whether the complainant, as a pedestrian, advanced across the intersection after waiting for the pedestrian crossing light to be illuminated.

iv) Whether the defendant failed to yield to a pedestrian lawfully within the crosswalk as described within s.144(7) of the HTA.

v) Whether the complainant would have been visible to any driver who was being prudent given the light and weather conditions at 1130 pm on April 17th, 2023.

[9] The defence counsel accepts, that if the court makes a finding that the complainant was within the crosswalk, that the actus reus would be proven beyond a reasonable doubt; as a prudent driver should reasonably consider that other persons may be within a crosswalk when they affect a turn to an intersecting highway.

[10] I will note that these ancillary issues in no way shift the analysis from the defendant’s culpability to the complainants; rather these issues must be analysed to determine whether a reasonably prudent driver, in all the circumstances, driving in the manner of the defendant was driving carelessly or not.

The Law

s.130(3) Actus Reus?

[11] The Supreme Court of Canada (SCC) in Hundal characterized the notion of negligent driving as a continuum that traverses from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code of Canada. It is trite law for most offences to state that it is the wrongful act or an omission by the defendant which renders them liable to punishment, not the consequences of those acts or omissions; however, for careless driving causing bodily harm or death the consequences form part of the actus reus.

[12] The Ontario Superior Court (ONSC) in Kinch indicated that the test for careless driving has remained constant since Beauchamp, which affirmed that the beyond reasonable doubt standard applies, that the standard of care is not one of perfection rather a reasonable degree of skill, due care depends on the circumstances in each case, that the factual standard constantly shifts with the circumstances such as but not limited to weather/visibility/traffic conditions, the standard for reasonableness is objective and not subjective.

[13] The ONCA in McIver referenced the absence of evidence from which a contrary conclusion could be drawn and the absence of an explanation to account for the cause of the collision. The fact of an accident is not sufficient to establish the actus reus but it may be sufficient depending on the circumstances. If the fact of an accident may give rise to reasonable inferences other than that the defendant was driving carelessly then it will not establish the actus reus.

[14] It is clear from the plain wording of section 130(3) of the HTA that there are two ways that a driver can drive carelessly. First, by failing to drive with due care and attention. Second, by failing to give reasonable consideration for other person using the highway. s.130(3) reads:

i) “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.”

s. 130(5) Deemed lack of reasonable consideration?

[15] Further, section 130(5) of the HTA provides a test by which the actions of a defendant can be deemed to lack reasonable consideration. Specifically if the defendant drives in a manner that limits their ability to adjust to changing circumstances, such as pedestrians on the highway the Act reads: “

i) “For the purposes of subsections (1) and (3), a person is deemed to drive without reasonable consideration for other persons using the highway if he or she drives in a manner that may limit his or her ability to prudently adjust to changing circumstances on the highway. 2017, c. 26 , Sched. 4, s. 17.”

Strict Liability?

[16] The SCC in Sault Ste. Marie established the concept, in Canadian Law, that Strict Liability applies presumptively to public welfare offences. The defendant would be afforded the opportunity, after the prosecution had proven the actus reus, to relieve themselves of fault by demonstrating reasonable care (due diligence):

Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as “wilfully,” “with intent,” “knowingly,” or “intentionally” are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

[17] In Kanda the Ontario Court of Appeal (ONCA) reiterated, from Sault Ste. Marie, the four criteria by which public welfare offences should be analysed to determine whether they are strict liability, or whether that presumption can be rebutted. No submissions were made by either party, nor any authorities cited in this trial that rebut this presumption.

[19] I make two observations about this passage. First, Dickson J. articulated a presumption that public welfare offences are strict liability offences; accordingly, this presumption must be the starting point in an analysis of a regulatory provision such as s. 106(6) of the HTA. Second, the classification of a particular provision follows from an assessment of the four factors set out in the emphasized portion of the passage -- the overall regulatory pattern, the subject matter, the penalty, and the precision of the language used. It is to this assessment that I now turn.

[18] Epstein J., sitting as a POA Appeal court, in Shergill (which has been affirmed by the ONCA, leave to appeal dismissed) summarized the law on careless driving in Ontario that has found that the offence has strict liability. Some of the key principles from that decision include: the lack of a mens rea requirement, the test to establish the actus reus, the gravamen of the offence being inadvertent negligence, that momentary inattentiveness is fact specific, and the standard to be applied is against the conduct of a hypothetical reasonably prudent driver.

i) Paragraph 22:

"In light of jurisprudence since Beauchamp it would now appear to be settled law careless driving is a strict liability offence and, since mens rea is not a relevant factor for consideration, that the court ought not to look at the conduct to determine whether it is "blameworthy and deserving of punishment". To the extent that Beauchamp added that consideration as an element of the charge it has, in my view, been effectively overruled."

Paragraph 23:

"...If, in the circumstances, the only reasonable inference to be drawn from the fact of an accident is that the defendant was operating his or her vehicle on a highway without due care and attention or without reasonable consideration for other persons using the highway then the actus reus has been made out. It then falls upon the defendant to establish that he or she reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or that he or she took all reasonable steps to avoid the particular event.

Paragraph 26:

"...the gravamen of the offence of careless driving is inadvertent negligence. If the conduct of the defendant falls below the standard expected of a reasonably prudent driver in the circumstances, then it is negligent and deserving of punishment under Provincial careless driving provisions. If it does not fall below the standard expected of a reasonable person, then it is not negligence and does not amount to a lack of due care and attention."

Paragraph 28:

"...If, given all of the surrounding circumstances, momentary inattentiveness by a driver does not constitute a departure from the due care and attention or reasonable consideration demanded of an ordinarily prudent driver then it cannot constitute the offence of careless driving and is not punishable. If the court considers that given all of the circumstances the degree of inattentiveness displayed by the defendant goes beyond what one would expect of a reasonably prudent driver in such circumstances, then the offence has been made out.”

"I emphasize that it is, in my view, incorrect to boldly state that momentary inattentiveness cannot constitute careless driving. The trier of fact must conduct an analysis of the evidence in each case and must measure the evidence of inattentiveness against the standard expected of a reasonably prudent driver."

Paragraph 30:

".... 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."

Left Turn made Safely?

[19] The due care requirement for a left or right turn is summarized under s.142(1) of the HTA (enclosed below). It is clear that, in making a left turn, a driver has an onus to ensure not only that the turn can be started safely, but that it can be continued and completed safely. Madigan J.P. in Tomizawa, [2017] O.J. No. 3020 found that a reasonable care standard applies throughout the entirety of the turn. In Morrison v. Dunlap and Dunlap a safe turn requires that a driver make all reasonable efforts to see what is relevant around them, and this duty cannot be discharged simply by the driver’s claim that they did not see what they ought to have seen, unless there was a reasonable excuse for not seeing it.

i) “The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety …” (emphasis added).

The Witnesses

[20] In this section I will make findings of credibility and reliability for the witnesses who gave viva voce evidence (in the order that they testified), as well as the voluntary statement entered from the defendant. I will summarize only the key pieces of evidence from each witness, and the weight that I’ve applied to it.

Bystander - Austin Haja

[21] The first prosecution witness was a bystander Austin Haja. In many respects his testimony was crucial to the prosecutions case, as he was the only person who claimed to have observed most elements of the accident. His testimony aligned in many respects with the 4 officers and the complainant, details such as the defendant driving a jeep, that the complainant was wearing all black save for a white tote bag, the complainant was thrown 4 to 5 feet onto a gravel/sidewalk transition, that the right front portion of the defendant’s vehicle collided with the complainant.

[22] However, there were notably discrepancies, first only the bystander claimed the accident occurred at 1030 pm, everyone else said 1130 pm. Second, only the bystander observed that the defendant made the left turn at a high rate of speed. Third, the bystander testified that he had a clear view of the pedestrian and could see them crossing the intersection in the crosswalk; however, on cross when questioned about a contradiction with his original statement given shortly after the accident recanted and adopted his original statement that instead the pedestrian (the complainant) was 10 feet to the west of the crosswalk. Fourth, he claims the defendant had an advance green for the Winterberry Dr northbound turn lane, not because he saw the flashing signal but rather his experience with that intersection. Fifth, he claimed the collision occurred mid arc, which would align with the complainant being in the crosswalk (exhibit 1);

[23] Overall, I found the bystanders testimony to be unreliable. I don’t accept the time he gave for the incident. I don’t accept his observation that the defendant’s vehicle was driving at a high rate of speed, as he could not specify how he came to that conclusion. I don’t accept that the complainant was in the crosswalk; instead, I accept his original statement that the pedestrian was 10 feet outside the crosswalk. What I do accept is the location of the accident, and that the defendant’s vehicle turned left into the north most lane on Mud St, which is consistent with the location where the complainant landed after impact. I also accept that the defendant had a flashing green (advance) green when they entered the intersection. I also accept that the bystander had a clear view of the complainant from his location on Mud St, but that is not determinative whether the complainant was visible to the defendant on Winterberry Dr. Finally I don’t accept his description of the landing spot for the complainant; instead his description is more consistent with the gravel/sidewalk transition which would be consistent with a nearly completed left turn and would require the complainant to be outside the crosswalk which would align with his adopted original statement.

Complainant – Althea Maguyon

[24] The second prosecution witness was the victim or complainant Althea Maguyon. Her time for the accident aligned with the investigation, as did her description of her attire being all black, which was her work uniform. The complainant claimed to have waited on the south side of Winterberry Dr for the pedestrian cross light and only then proceeded north, within the crosswalk to the other side. She does not remember being hit, nor many details after the accident. She did indicate using the exhibits that she believes she was hit within the crosswalk, on the western edge of that boundary, and landed near the sidewalk. She also described the nature of her injuries, which the defence accepted as being accurate, and supporting a finding of bodily harm. Further Officer 1 noted the landing spot of the complainant was at the gravel/sidewalk transition.

[25] While I found the complainant to be credible to the best of her memory, I was left with doubt as to the accuracy of her statements. She accepted that she suffered head trauma from the accident, and I found her statements to be unreliable. I accept the timeframe she gave for the accident, her description of her clothing, that it was dark, and that the intersection was artificially illuminated. What I don’t accept, as unreliable, is her assertion she crossed within the crosswalk, it simply is not consistent with the location indicated by the bystander and the officers where she was located after the accident; instead, it is more likely she was 10 feet to the west of the crosswalk. Further I don’t accept her assertion that she waited for the pedestrian crossing light, this is inconsistent with the bystanders statement that the defendant had an advance green immediately before the collision. Finally I do accept that the collision occurred closest to the north-most lane of Mud St, which is consistent with the bystanders observations.

Officer 1 – Officer Burgess

[26] The third prosecution witness, and first police witness was Officer Burgess. The officer indicated that the mv collision investigation commenced shortly after 1130 on April 17th 2023 on Winterberry Dr and Mud St in the City of Hamilton. All of these details are not disputed. The investigation found that the defendant was driving a Silver/Brown Jeep SUV marker CPWA 684, and that the lone female driver was Madeline Di Santo, this is also not disputed. Officer 1 observed two full cycles of the intersection lights and they were functional, and confirmed there was and advance green with a left turn arrow.

[27] It was this officer who received the voluntary statement that was admitted into evidence on consent. Officer 1 informed that the defendant was the driver of the vehicle, that they did make a left turn, and that there was a collision with a pedestrian. The defendant at no time saw the complainant and only became aware of the collision due to the impact on the front passenger side of her vehicle. On cross, with respect to the voluntary statement, Officer 1 informed that the defendant stated that she made the left turn at a normal speed, that she used her left turn signal, that her headlights were on, that she had a clear unobstructed view but that it was dark dimly lit, that she had taken no drugs or alcohol, that she had no distractions within her vehicle, and that she turned into the north-most lane not the lane proximate to the center line on Mud St.

[28] Overall, Officer 1’s investigation was consistent with the testimony of the bystander, who believed the defendant had an advance green. I accept that the intersection lights were functional. I accept the officers testimony where the complainant laid on the ground, as it is consistent with the bystander, and consistent with the bystander’s original statement that she was 10 feet outside the crosswalk. As I will explain later with officer 3, I accept the voluntary statement from the defendant that they turned left at an normal or reasonable speed for the circumstances, and that there is no evidence from the investigation that would indicate that she took the left turn at a high rate of speed.

Officer 2 – Officer Wilson

[29] The fourth prosecution witness, and second police witness was Officer Wilson. I will only briefly touch on this witness as they largely confirmed, from their investigation, the non-contentious facts of the accident such as the date, time, location. The most relevant portion of their testimony was their investigation of the road markings and traffic lights. Officer 2 indicated that it was a four-way intersection, with traffic control lights for each direction. There was a functional pedestrian cross light with a countdown timer, which is consistent with the complainant’s testimony. That the intersection was artificially lit. That the traffic lights were all functional. They also confirmed that there was a functional flashing green (advance green) for Winterberry Dr north-bound turning left onto Mud St. Officer 2 also informed that it would not be possible to have a lit pedestrian cross light when the advance green was activated.

[30] I’ll note that this witness confirmed that the bystander made a statement just after the accident to this officer that that point of impact was 10 to 15 feet outside the crosswalk. Officer 2 also observed no damage to the defendant’s vehicle, which indicated to him that it was a low-speed collision in the 5 to 25 km/hr range, and would be inconsistent with a high speed collision.

Officer 3 – Officer Cruickshanks

[31] The fifth prosecution witness, and third police witness, was Officer Cruickshanks. His investigation occurred several hours after the accident, starting approximately on 230am on April 18th, 2023. His main observation of the scene was the lack of road markings, or vehicle parts on the ground at the intersection and that vicinity. Further Officer 3 noted the lack of vehicle damage on the 2018 Jeep Wrangler SUV marker CPWA 684 registered to the Salvator Di Santo, the father of the defendant. Officer 3 also observed the traffic lights to be functioning properly. The officer described the countdown timers for the flashing green (advance green) and the pedestrian cross light and that the intersection was well lit including the crosswalk. Officer 3 also interviewed the complainant on May 2nd 2023 and confirmed the injuries and bodily harm she suffered.

[32] Similar to the investigation by Officer 2 the investigation by Officer 3 indicates that the collision was low speed, due to the lack of any visible damage to the defendant’s vehicle. The officer under testimony seemed surprised with the lack of damage, stating that he could not tell the vehicle had even been in an accident as there wasn’t even a scratch, which he could only reason was due to a low-speed impact. This observation is consistent with the defendant’s testimony that the turned left at a normal or prudent speed.

Officer 4 – Officer Morgan

[33] The final prosecution witness, and fourth police witness, was Officer Morgan. His testimony was quite brief. He indicated he took a statement from the bystander. And in that written statement Austin Haja indicated that the complainant was 10 to 15 feet away from the crosswalk, this is consistent with the bystander’s revised testimony.

The Facts

[34] Next within this analysis I’ll make findings of fact from the testimony and other evidence admitted as exhibit at trial.

Unreasonable Speed?

[35] A review of the evidence as a whole leads to the only logical inference that the defendant was not making a left turn at a high rate of speed. The only evidence of a high-speed turn comes from the bystander, but as I indicated I found this testimony unreliable, given the discrepancies in that witnesses’ testimony. The on-scene investigation from the officers all lead to the reasonable inference that a low-speed collision occurred between the defendant and complainant, as shown by the lack of any visible damage on the defendant’s motor vehicle and the lack of any visible signs of an accident on the road. This leads to the inference that the defendant was proceeding with due care and reasonable consideration given the circumstances present.

Turn Incorrect Lane?

[36] The evidence as a whole does indicate that the defendant turned into the north-most lane on Mud St, not the lane immediately right of the center line of the intersecting highway, as described under s.141(6) of the HTA as would be expected. I can draw an inference that the defendant made an improper left turn at intersection and the actus reus is proven of this lesser offence. I will note however that the prosecution did not make any submissions requesting consideration of a lesser or included offence to careless driving bodily harm. And I decline to make such a finding on my own motion.

[37] Further, as I will explain later, the evidence as a whole leads to the inference that the defendant did first see that the movement could be made in safety by using their left turn signal, and only proceeding into the intersection when a flashing green with left turn arrow (advanced green) was illuminated.

Deemed lack of reasonable consideration?

[38] The evidence as a whole leads to the conclusion that the defendant did prudently adjust their driving to the circumstances present, specifically by reducing their speed, and by waiting to proceed left into the intersection only when an advance green was indicated. Therefore, I cannot deem that they lacked reasonable consideration. The fact that the collision occurred despite these prudent adjustments is not proof on its own of the actus reus; rather a fact specific examination has shown that the defendant exercised due care when driving on April 17th, 2023.

Flashing Green (Advanced Green)?

[39] The evidence as a whole, particularly the testimony of the bystander and the investigation by the officers, indicate that the defendant did in fact have a functional flashing green light (advance green) which does lead to the reasonable inference that the defendant expected that they had the right of way to proceed into the intersection.

[40] A related inference, based on officer 2’s testimony was that it was unlikely that the pedestrian cross light was illuminated, as it was impossible for that light to be activated at the same time as the advance green.

Pedestrian in Crosswalk?

[41] The evidence at trial leads to the inference that the complainant traversed the intersection, moving south to north along Winterberry Dr, approximately 10 to 15 feet outside the crosswalk to the west. This inference can be drawn from the location where the complainant was found by witnesses after the accident, as well as the eye-witness testimony of the bystander which I accepted as true. I can also make the inference that since the complainant was outside the crosswalk, which was illuminated, the complainant may have been less visible to the defendant the farther they were away from the crosswalk overhead lights.

Fail to Yield to Pedestrian?

[42] Having found that the defendant did have a flashing green light, with a left arrow (advance green) I found that the defendant had reasonable grounds to believe they had the right of way at the intersection. Further I have found that the complainant was not within the crosswalk, instead they were 10 feet at least to the west of the cross walk. The only logical inference from these two facts is that the defendant did not fail to yield to the pedestrian (complainant). The defendant had the right of way to make a left hand turn, and had no reasonable basis to believe a pedestrian was crossing the road at that time outside of the crosswalk.

Conclusions

[43] For these reasons the prosecution has failed to prove the actus reus of careless driving causing bodily harm or death, contrary to section 130(3) of the HTA. Specifically, they have failed to show, beyond a reasonable doubt, that the defendant’s driving on that day fell below the standard of a reasonably prudent driver given all the circumstances. There is no evidentiary basis to conclude that the defendant drove without due care and attention or alternatively without reasonable consideration for other persons using the highway, specifically the complainant. On the contrary the evidence shows that the defendant drove at a prudent speed, and with reasonable consideration to the lighting, road, and weather conditions present. There is no evidence they were distracted, nor failed to use their vehicle lights, nor intoxicated, nor in any other way negligent or careless.

[44] The inference from all the evidence, that is most consistent with the facts is that this was an accident. One where the defendant had the same probability of colliding with the complainant as any other reasonably prudent driver that could have driven a motor vehicle that day at that time at that location. The factors that may have contributed to that risk of collision included the dark clothing of the complainant that made her not plainly visible, and the complainant’s direction of travel 10 feet outside of the crosswalk. Finally, there is doubt that the complainant advanced across the intersection with a pedestrian crosswalk light; rather the inference most consistent with the evidence is that the defendant had an advance green, thus had the right of way, they reasonably should not expect a pedestrian to be crossing the road at that time outside of the crosswalk.

[45] Given this finding there is no need to analyse any defence proffered on a balance of probabilities. Count 1 is dismissed. I will thank both parties for the professional conduct of the proceedings during the trial.

Signed: Justice of the Peace K.W. Bouchard