Court File and Parties

Date: August 15, 2025

Court File No.: 1260-999-24-8072

Ontario Court of Justice (Central West Region)

Between:

His Majesty the King (The Region of Halton) (Prosecution)

— and —

Owen Richard Marshall (Defendant)

Trial Judgement

Before: Justice of the Peace T.J. Howard

Trial heard: February 20th, 21st and May 9th, 2025 in Burlington, Ontario

Judgement delivered: July 22, 2025 in Burlington, Ontario

Written reasons released electronically: August 15, 2025

Counsel:

• Ms. Bhatnagar, S. for the Prosecution
• Mr. Paquette, D. Counsel for the Defendant

JUSTICE OF THE PEACE T.J. HOWARD

Introduction

[1] The defendant, Mr. Owen Richard Marshall is charged with the offence of careless driving causing bodily harm, contrary to subsection 130(3) of the Highway Traffic Act, R.S.O., c. H.8, as amended (HTA). The prosecution alleges that Mr. Marshall committed this offence on August 2nd, 2023, in the Town of Oakville when he merged onto the Queen Elizabeth Way (QEW) highway and collided with a motorcycle driven by Mr. Syed Pirzada, who then fell from his motorcycle and suffered life-altering injuries. Mr. Marshall pled not guilty to the charge. His trial took place on February 20th, February 21st, and May 9th, 2025, in Burlington, Ontario. These are my reasons for judgement.

[2] It is undisputed that on the morning of August 2, 2023, Mr. Marshall drove onto the westbound QEW from northbound Third Line in Oakville. Upon merging to the QEW he collided with a motorcycle driven by Mr. Syed Pirzada in the westbound lanes. Mr. Pirzada subsequently fell from his motorcycle and was gravely hurt; tragically sustaining permanent, life-altering injuries. Police investigated, which included interviewing Mr. Marshall, interviewing several witnesses, surveying the crash scene, and expertly reconstructing the collision. What is in dispute is whether Mr. Marshall merged in a manner that was careless.

[3] The prosecution claims that Mr. Marshall merged onto the QEW too quickly and dangerously, failing to observe Mr. Pirzada's approaching motorcycle, thereby hitting him, and causing his injuries. Mr. Marshall claims that the available evidence supports alternative scenarios, including that Mr. Marshall merged carefully, and that Mr. Pirzada was driving carelessly.

[4] Only the prosecution presented evidence in this trial. Thus, the only issue I must resolve is whether the prosecution has proven Mr. Marshall's guilt beyond a reasonable doubt. Specifically, I must decide whether the prosecution has proven the actus reus of the offence – that Mr. Marshall drove without due care and attention or without reasonable consideration for other persons using the highway in all the circumstances. To resolve this issue, I will need to examine what the evidence reveals about the way Mr. Marshall merged onto the QEW and the surrounding circumstances, including Mr. Pirzada's driving.

[5] For the reasons that follow, I conclude that the prosecution has failed to prove beyond a reasonable doubt that Mr. Marshall committed the offence of careless driving causing bodily harm.

Analysis

Relevant Statutory Provisions and Legal Principles

Careless Driving

[6] The two statutory provisions most relevant here are ss. 130(3) and 130(5) of the HTA. Subsection 130(3) reads as follows:

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

Subsection 130(5) reads as follows:

For the purposes of subsections (1) and (3), and without limiting the generality of subsections (1) and (3), a person is deemed to drive without reasonable consideration for other persons using the highway or specified place if he or she drives in a manner that may limit his or her ability to prudently adjust to changing circumstances on the highway or in the specified place. [emphasis added]

To make out a case of careless driving against Mr. Marshall, the prosecution must establish the essential elements contained in s. 130(3) underlined above. Subsection 130(5) qualifies the phrase "drive without reasonable consideration" without limiting what it may entail.

[7] The offence of careless driving is a strict liability offence for which the gravamen is "inadvertent negligence": see R. v. Shergill, [2016] O.J. No. 1503, at paras. 12 and 26.

[8] Shergill, supra also clarifies that an "accident" and "momentary inattentiveness" are both factors that may be sufficient to establish careless driving, but not necessarily. What is crucial is the context in which they occur and the driving behavior of the defendant relative to what is expected of a reasonably prudent driver: see Shergill, supra, paras. 24 and 28; R. v. Beauchamp, [1952] O.J. No. 495, pg. 7.

[9] At paragraph 23 of Shergill, supra the Court states the following regarding accidents:

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. [emphasis added]

[10] Importantly, in accident cases, exculpatory evidence about a defendant's driving and a resulting accident may give rise to reasonable inferences other than guilt. In R. v. Lattimore, [2015] O.J. 5572 (leave to appeal refused October 13, 2015, ONCA J.A. Laforme [unreported]) at paras. 13 to 18, the appeal judge found that the trial justice of the peace misapprehended the evidence surrounding an accident, and the defendant's role therein, by failing to consider alternative scenarios supported by the evidence. Because these possibilities were not merely speculative, the Crown's inability to exclude them meant the case was not proven beyond a reasonable doubt.

[11] Regarding momentary inattentiveness, the Court in Shergill, supra states the following at paras. 28 and 29:

[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.

[29] I emphasize that it is 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. [emphasis added]

[12] Crucially, this analysis must be of the alleged driving behavior "at the time the offence is alleged to have been committed measured against the expectation of the conduct of a reasonably prudent driver": Shergill, supra, para. 30. Driving behavior of the defendant leading up to the alleged offence is not determinative and should be viewed simply as one of many circumstances surrounding the alleged offence.

[13] In the case before me, Mr. Marshall's driving behavior must be assessed in the context of his merge onto the QEW. The HTA does not specifically deal with merging onto a highway, rather, it deals generally with safe moves and signaling at ss. 154(1)(a) and 142(1) respectively (Mr. Marshall is not charged under these sections). Section 154(1)(a) of the HTA states:

Where a highway has been divided into clearly marked lanes for traffic,

(a) a vehicle shall not be driven from one lane to another lane or to the shoulder or from the shoulder to a lane unless the driver first ascertains that it can be done safely; [emphasis added]

Section 142(1) states:

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, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement. [emphasis added]

[14] These subsections place a duty on drivers when turning or changing lanes to first ensure they can do so safely. Notably, failing to turn or change lanes in safety is also a strict liability offence: see R. v. Dillman, 2008 ONCJ 101, at para. 13. A driver, to turn safely, must consider other drivers' behaviors, including that other drivers may not be following the rules of the road. However, this is subject to reasonable limits. On this issue, the Court in Dillman, supra at para. 19 reasoned as follows:

All of the circumstances must be considered in determination of whether a turn was made in safety. Where, as here, visibility of oncoming traffic is limited, it is my view that safety requires that the left turning driver make allowances for the predictable shortcomings and potential negligence of drivers who may soon appear. While it has sometimes been said that a driver is entitled to assume that other drivers will obey the rules of the road, I think there are limits to such an assumption particularly where there is an onus to do something "in safety". In my view the safe left turner is not entitled to assume that all other drivers will be strictly adhering to speed limits or paying perfect attention to the road ahead. On the other hand it would be an unreasonable standard of care and tantamount to imposing absolute liability to hold that the turn was not made in safety because an accident was caused by, for example, the gross speed or gross inattention of an oncoming driver. [emphasis added]

[15] In my view, similar reasoning applies in the scenario of highway merging. The merging driver, which is the driver making a move into established traffic, ought to account for the shortcomings of drivers on the highway including, but not limited to, speeding. This forms a part of the "reasonable consideration for other persons using the highway" and "prudently adjust to changing circumstances on the highway" portions of ss. 130(3) and 130(5) respectively. However, this duty also rests with drivers already on the highway, who must be considerate of merging vehicles. It would be unreasonable to expect drivers merging onto a highway to anticipate gross inattention or carelessness on the part of drivers in established traffic. In other words, a lack of due care and attention or a lack of reasonable consideration on the part of a driver(s) in established highway traffic may be a factor that negates the ability of even a prudent driver to merge onto a highway safely.

[16] There is support for this reasoning in the case law, where Courts have found that drivers are entitled to anticipate safe driving behavior from other drivers at critical moments. For example, in R. v. Beauchamp, [1953] O.R. 422, pg. 12-13 the Ontario Court of Appeal stated:

To support a charge under s. 29(1) of The Highway Traffic Act, the evidence must be such as to prove beyond reasonable doubt that the accused drove in the manner prohibited by the subsection, namely, without due care and attention or without reasonable consideration for others. The standard of care and skill to be applied has been long established and is not that of perfection. It is, I think, correctly stated in Mazengarb, op cit., at pp. 176-7, as follows:

"The law does not require of any driver that he should exhibit 'perfect nerve and presence of mind, enabling him to do the best thing possible.' It does not expect men to be more than ordinary men. Drivers of vehicles cannot be required to regulate their driving as if in constant fear that other drivers who are under observation, and apparently acting reasonably and properly, may possibly act at a critical moment in disregard of the safety of themselves and other users of the road.

"But the law does insist upon a reasonable amount of skill in the handling of a vehicle which is a potential source of danger to other users of the road. ... The question always is 'What would an ordinary prudent person in the position of the plaintiff have done in relation to the event complained of?'" (Pollock on Torts uses the term "average man".) [emphasis added]

Again, it stands to reason that some degree of imperfect driving ought to be anticipated by drivers merging onto a highway, but merging drivers can also reasonably expect that drivers in established highway traffic will act safely at moments where vehicles are merging.

Proof Beyond a Reasonable Doubt

[17] This case contains both direct and circumstantial evidence. Proof beyond a reasonable doubt in this case will therefore require a combination of findings from both sources. In R. v. Lifchus, [1997] 3 SCR 320 (SCC) a "reasonable doubt" is defined in part as: "not an imaginary or frivolous doubt. It must not be based on sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence." Guilt beyond a reasonable doubt effectively sits between absolute certainty and probable guilt: see R. v. Starr, 2000 SCC 40, para. 242.

[18] In cases with circumstantial evidence, inferences must be drawn from the evidence as a whole: see R. v. Cinous, 2002 SCC 29, para. 88. In R. v. Villaroman, 2016 SCC 33, paras. 35 and 36 the Supreme Court clarified that "inferences consistent with innocence do not have to arise from proven facts", but can arise from the absence of evidence; a finding of guilt based on circumstantial evidence can only be supported where a trier of fact is satisfied that the only rational inference to be drawn is guilt.

[19] Further, establishing proof beyond a reasonable doubt in a case where credibility is determinative requires the analytical approach set out in W.(D.). and summarized in R. v. Doiron, 2013 NBCA 31, para. 26 as follows:

W.(D.) sets out an analytical approach for reaching a verdict in a case where credibility is determinative. It provides that, in such cases, a verdict cannot be reached by simply choosing one version of the evidence over the other. At all times the question is whether the prosecution has proven its case beyond a reasonable doubt. Where an accused has testified but the evidence is not believed, the testimony may nevertheless raise a reasonable doubt justifying acquittal. Even if it does not, a conviction cannot be sustained unless, on the whole of the evidence, the trier of fact is convinced of the guilt of the accused beyond a reasonable doubt. W.(D.) does not subject trial judges to recite a particular mantra. So long as a trial judge gives effect to the approach and addresses the live issues in the case, a ground of appeal based on W.(D.) is bound to fail.

[20] As counsel for Mr. Marshall correctly submits, the application of this analytical approach is required even in cases where the defendant has not testified, but there exists exculpatory evidence presented through the Crown's case: see R. v. Fogah, 2018 ONCA 564, [2018] O.J. No. 3402, para. 53. In the case before me, this exculpatory evidence includes, but is not limited to, Mr. Marshall's statements to police. Thus, a W.(D.) analysis is required.

Positions of the Parties

The Prosecution

[21] The prosecution submits that the evidence in this case is clear and supports a finding that Mr. Marshall drove his vehicle carelessly into Mr. Pirzada's motorcycle, hitting him, and causing him to fall and be gravely injured.

[22] First, the prosecution submits that the strongest evidence comes from the sole eyewitness to the collision, Mr. Keegan Walker, who the prosecution argues is credible and reliable. The prosecution argues that Mr. Walker had a good ability to observe the driving of Mr. Marshall before the collision, the driving of Mr. Pirzada, the collision itself, and the events following the collision. Moreover, the prosecution argues that Mr. Walker's testimony aligns with the physical evidence of the collision captured by police, which boosts his credibility and reliability.

[23] Second, the prosecution submits that the evidence shows that Mr. Marshall was driving the Black Acura TL motor vehicle that collided with Mr. Pirzada's motorcycle. Here the prosecution highlights the testimony of Mr. Walker, the video evidence, witness' observations of Mr. Marshall following the collision, and evidence summarized in the technical collision report.

[24] Third, the prosecution submits that the maneuver made by Mr. Marshall, which precipitated the collision, was careless. The prosecution posits that three factors contributed to this: i) that Mr. Marshall merged at the preliminary portion of the merge lane without gathering sufficient information to confirm it was safe, ii) that Mr. Marshall attempted to overtake the vehicle ahead of him in the merge lane, which was unpredictable and negatively impacted road safety, and iii) that Mr. Marshall knowingly operated a vehicle with a deficient side mirror, which limited his visibility.

[25] On factor one, the prosecution highlights evidence that makes out where Mr. Marshall merged – the initial portion of the merge lane. The prosecution argues that this early merge forced Mr. Pirzada to attempt to stop at the last minute. The prosecution stresses that the merge lane is long, which afforded Mr. Marshall the opportunity to continue in that lane for an extended period before merging; his early merge was unnecessary.

[26] On factor two, the prosecution argues that Mr. Marshall attempted to merge "out of sequence" and "overtake" the vehicle ahead of him in the merge lane. The prosecution argues that Mr. Pirzada could not have reasonably anticipated that Mr. Marshall would do this, and therefore would not have made the requisite adjustments for Mr. Marshall entering the highway.

[27] On factor three, the prosecution argues that the corroded side mirror on Mr. Marshall's vehicle exacerbated the above two factors by making it more difficult for Mr. Marshall to see to his rear while merging. The prosecution argues that even if Mr. Marshall did not fully rely on this mirror – for example, by checking his blind spot – his merge nonetheless cut closely in front of Mr. Pirzada. In either scenario, given the combination of all the above factors, the prosecution argues that Mr. Marshall's driving was careless.

The Defence

[28] The defence argues that none of the evidence supports that Mr. Marshall drove without due care and attention or without reasonable consideration for other drivers. The defence points to inconsistencies in the evidence of the collision and surrounding circumstances. The defence submits that there are some reliability concerns with the evidence of the sole eyewitness to the collision, Mr. Walker; testimony from other witnesses' conflicts with, or creates uncertainty about, Mr. Walker's account.

[29] Moreover, the defence highlights that Mr. Walker's observations included that there was "good room to merge" for Mr. Marshall before the collision. The defence submits that this observation aligns with Mr. Marshall's evidence to police – that he observed a gap in traffic and merged after checking that it was safe to do so.

[30] Finally, the defence submits that the evidence of Mr. Pirzada's driving leading up to the collision, including the fact that his motorcycle may have struck Mr. Marshall's vehicle (not the other way around) raises several unanswerable questions about how the collision took place. Thus, the defence argues, the prosecution has not proven Mr. Marshall's guilt beyond a reasonable doubt.

The Evidence

[31] The evidence presented in this trial consisted of viva voce testimony, a Ministry of Transportation video, scene photographs, EMS and medical reports, a vehicle examination report, a technical collision investigation report, and a collision reconstruction report. I heard from 16 witnesses, including 7 civilian witnesses and 9 officers. Not all the evidence served to clarify the issues in dispute. Therefore, I will summarize only the most relevant portions below.

Mr. Marshall's driving and merge onto the QEW

[32] It is conceded by the defence that Mr. Marshall was driving a Black Acura TL from northbound Third Line onto the westbound QEW via the on-ramp, and at some point, collided with the motorcycle driven by Mr. Pirzada. Direct evidence of Mr. Marshall's driving prior to, and during his merge, comes from two sources: i) Mr. Marshall's statements to police, and ii) Mr. Walker's observations. No other witness directly observed Mr. Marshall's merge or the point of impact. Moreover, there is limited circumstantial evidence of Mr. Marshall's driving prior to, and during his merge.

[33] Mr. Marshall's statements include a spontaneous utterance overheard by Officer Pinkney (one of the first officers to arrive at the scene following the collision), two statements at roadside to Officer Choi (the investigating officer), and a third statement at a police station to Officer Choi.

[34] Officer Pinkney testified that as Mr. Marshall stood at the scene, he uttered aloud to no one in particular "I don't know if I hit him, I don't know if I hit him, I don't know if I hit him". Officer Pinkney observed Mr. Marshall to be visibly shaken up.

[35] Some short time later, at approximately 9:13 am, Mr. Marshall spoke to Officer Choi at the side of the roadway. Officer Choi testified that he cautioned Mr. Marshall about potential charges under the HTA or the Criminal Code. Officer Choi recorded Mr. Marshall's statement in his notebook using quotations as "merging on from Third Line to QEW westbound, checked mirror and made a lane change, traffic moving steady approximately 70 km per hour. I didn't even know if it was me that hit him, but saw the motorcycle wobble and fall. I pulled over and saw that my rear left bumper was sticking out, that's when I thought that it must have been me." Officer Choi also described Mr. Marshall as visibly shaken up.

[36] Officer Choi testified that he had a second interaction with Mr. Marshall at the roadside, near Mr. Marshall's vehicle, but he failed to take note of it. From memory, Officer Choi testified that he asked Mr. Marshall about the sideview mirror of his vehicle (which was corroded), and recalled Mr. Marshall stating that he "got the vehicle like that". Officer Choi also recalled Mr. Marshall indicating that his rear bumper was dislodged, but cannot recall if Mr. Marshall explicitly pointed this out or not. Officer Choi could not explain why the details of this second interaction were not in his note book.

[37] Officer Choi further testified that he escorted Mr. Marshall and his father to the Burlington detachment of the OPP, arriving at approximately 10:57 am. Officer Choi re-cautioned Mr. Marshall for "careless driving causing bodily harm" and "unsafe vehicle" and began an interview at 11:13 am. During the interview, at approximately 11:21 am, Officer Choi learned of a "technical difficulty" with the recording equipment, which resulted in the interview not being recorded. Mr. Marshall asked to speak to legal counsel after being advised of his right to do so by Officer Choi. After speaking with legal counsel, Mr. Marshall decided not to provide any further statements.

[38] After the interview, Officer Choi was forced to summarize what he recalled of Mr. Marshall's statement. He wrote the following in his notes: "Merging on from the ramp to QEW westbound at third line, check my side mirror on the driver's side and turned my head to check my blind spot, saw the motorcycle in the lane approximately 1 ½ car lengths behind the middle lane, change with signal on, the road was dry and visibility was clear". Officer Choi testified that this was not verbatim, but was his effort to paraphrase what Mr. Marshall said.

[39] In chief examination, Mr. Keegan Walker testified that he was driving a black Volkswagen Golf GTI westbound on the QEW approaching Third Line before the collision. Mr. Walker testified that he was travelling at approximately 100 km/h. He recalled driving in the "middle lane" before moving to the "far right lane", whereupon he first noticed the motorcycle approximately 100 meters ahead of him in the same lane. Mr. Walker testified that he had a clear line of sight to the motorcycle, as there were no cars in between the two.

[40] Mr. Walker testified that he also had a clear view of the Third Line on-ramp and observed two vehicles travelling on the ramp approaching the QEW. Mr. Walker initially described the first of the two vehicles as a "white car" and described the second as a "black car".

[41] Mr. Walker observed the black car merge before the white car, and interpreted this to mean that the black car failed to see the approaching motorcycle. Mr. Walker estimated that "it looked from a long way off that it was going to be a crash". He also felt that the black car wanted to merge "quicker" than the white car, and therefore tried to "overtake" it. Mr. Walker testified that the black car did not "get up to speed" with highway traffic before merging, which forced the motorcycle to try and stop unsuccessfully. Mr. Walker observed the motorcycle hit the rear left side of the black car before falling to the ground.

[42] In cross examination, Mr. Walker admitted that the event was traumatic to observe, and that he believed at the time that the driver of the motorcycle might have died. He testified that the motorcycle was travelling at less than 100 km/h as it approached the Third Line on-ramp. Mr. Walker stated that the black car had "good space to merge", but the motorcycle was closing in. He reiterated that the motorcycle tried to stop but couldn't, and moved to the left, before hitting the rear of the black car. He also reiterated that the motorcycle was driving straight, not erratically. After viewing the video (exhibit 1) Mr. Walker was uncertain about the color of the first car on the on-ramp. He initially thought that it was white, but admitted it could have been gray.

[43] Mr. Michael Kavanaugh testified that he was also driving on the QEW in the "far right" lane approaching the Third Line overpass when he observed "smoke" that seemingly preceded the collision. Mr. Kavanaugh testified that he was directly behind a black VW Golf (appears to be Mr. Walker), but that there were approximately 4-5 vehicles between him and the motorcycle, with approximately 3 car lengths between each vehicle. Mr. Kavanaugh testified that this black VW Golf passed him on his right shortly before the collision, and merged in front of him just prior to the collision.

[44] Mr. Kavanaugh also testified that he observed the motorcycle veer to its left and strike a tractor trailer that was travelling in the lane to the left. Mr. Kavanaugh observed the motorcycle strike the tire of this tractor trailer before falling to the ground. Mr. Kavanaugh did not see what caused the motorcycle to veer, nor did he see the point of impact between the motorcycle and Mr. Marshall's vehicle.

[45] The circumstantial evidence of Mr. Marshall's driving is largely limited to where he merged. The technical collision investigation report (exhibit 12) contains a series of photographs of the scene taken by Officer N. Thompson of the OPP. This series of photographs is at Appendix "D" of the report, and shows the scene from various vantage points following the collision. The photographs starting at page 12/27 of Appendix "D" (labelled 101_Collission Scene_13413_E231033910_070.JPG and following) are particularly helpful in showing where the collision generally took place, and thus, where Mr. Marshall generally merged. This is the area under the Third Line overpass toward the easterly edge, which is at the preliminary portion of the merge lane.

[46] Further, the expert opinion of collision reconstruction Officer T. Braun, based on his analysis, was that the point of impact was in lane 3 under the Third Line overpass, toward the easterly edge. Officer Braun's analysis relied on the physical evidence on the roadway, as well as the video evidence (exhibit 1). It was Officer Braun's opinion that at the point of impact both Mr. Marshall's vehicle and Mr. Pirzada's motorcycle were in lane 3. The video shows that at the point both vehicles exited the westerly edge of the Third Line overpass, the collision had already occurred. The defence does not dispute the point of impact nor the area Mr. Marshall is said to have merged.

[47] Importantly, Officer Braun testified that he was not able to conduct any analysis of Mr. Marshall's driving speed due to a lack of physical evidence, and due to the lack of airbag control module in Mr. Marshall's dated Acura TL. Further, there was no analysis completed regarding the relationship of Mr. Marshall's vehicle to the "white car" ahead of him in the merge lane, nor the relationship between Mr. Marshall's vehicle and the vehicles of witnesses.

[48] It is also not disputed by the defence that Mr. Marshall's vehicle had a corroded driver side sideview mirror. Photos of this are contained in the technical collision investigation report at page 2/27 in Appendix "D". Importantly, this sideview mirror was said to be "legal" by more than one officer in this trial. Furthermore, there was no expert opinion evidence that this mirror "impaired" Mr. Marshall's view (as will be discussed). However, there was expert opinion evidence of this potential. Frankly, this is obvious given the extent of the corrosion to the mirror.

Mr. Pirzada's driving

[49] There is evidence of erratic driving by a motorcyclist, likely to be Mr. Pirzada, before the collision. There is also evidence of proper driving by Mr. Pirzada before the collision. Mr. Pirzada's driving is not determinative of the issue in this trial, but it is a relevant factor for me to consider.

[50] Again, Mr. Walker testified that the motorcycle involved in the collision was driving straight in its lane just prior to the collision. Mr. Walker was asked in chief specifically whether the motorcycle was driving recklessly and he replied that it was not. However, two witnesses observed a motorcycle driving erratically shortly before the collision.

[51] First, Mr. Collin Dziwak testified that he was driving westbound on the QEW approaching Third Line in the lane second from the left (beside the HOV lane). He observed a motorcycle driving erratically and was "80 to 90% sure" it was the same motorcycle that was involved in the collision. He first noticed this motorcycle at Trafalgar Road and believed that the driver of the motorcycle was wearing a long sleeve black and red shirt, black pants, and a low-profile black helmet. Mr. Dziwak observed the motorcycle speeding up and slowing down, and at one point veering to the left of its lane, causing a silver Lexus SUV to veer left – out of its own lane – to avoid hitting the motorcycle. Mr. Dziwak was not 100% certain it was the same motorcycle.

[52] Second, Ms. Lauren Mondell testified in chief examination that she was driving westbound on the QEW in the "third lane" when she observed a motorcycle in front of her, continually swaying in and out of their lane. She recalls being so alarmed by the motorcycle's driving that – despite being alone in her car – she stated aloud, "oh my gosh this guy's going to get into an accident". She then testified as follows: "I kind of hung back, because I was nervous, like I didn't want to pass him, because he was kind of going in and out at one point, like he almost hit the back of another car. And then sure enough, right after Third Line exit...I didn't see the actual collision, but I saw everything flying through the air."

[53] Ms. Mundell testified that she believed the items seen flying though the air were from the same motorcycle she observed driving erratically. She believed this because the jacket observed on the driver of both motorcycles looked the same to her; a black jacket with a logo on the back.

[54] In cross examination, Ms. Mundell clarified that she first noticed the motorcycle driving erratically at Trafalgar Road. The erratic driving was what drew her attention. She explained that the type of driving she observed from the motorcycle was the type of driving she would expect from someone who was intoxicated; the motorcycle was continuously drifting between lanes. Ms. Mundell decided not to pass the motorcycle, instead staying behind it, because she feared it might hit her. She agreed with defence counsel's characterization of the motorcycle's erratic driving as "consistent and persistent", and further agreed that the very outcome she feared came to pass, almost immediately afterward. Ms. Mundell testified that she lost sight of the motorcycle just before the collision, but only for a brief time. It was Ms. Mundell's belief, based on where she first saw the motorcycle, the distance travelled, and their speed, that the motorcycles were one and the same.

The Collision

[55] Direct evidence of the collision comes from Mr. Walker. The remaining evidence is circumstantial, and includes photographic evidence, video evidence, physical evidence, expert opinion evidence and witness testimony.

[56] Again, Mr. Walker testified that he observed the motorcycle strike the rear left side of Mr. Marshall's vehicle. He then observed the motorcycle fall to the roadway and the driver tumble. Before it struck Mr. Marshall's vehicle, Mr. Walker observed the motorcycle try to slow down or stop unsuccessfully. Notably, Mr. Walker did not mention anything about a tractor trailer, nor about the driver of the motorcycle hitting his head on a tire.

[57] The analysis from the expert collision reconstructionist, Officer T. Braun of the OPP, which considered much of the same evidence heard in this trial, culminated with the following conclusions (see exhibit 13, pg. 23):

This collision occurred when the rear left corner of the Acura came into contact with the front wheel of the Kawasaki. The Kawasaki fell to the road and started to slide on its left side. The rider separated from the motorcycle as it slid on the road. Based on my analysis of the physical and video evidence, I was unable to determine the specific lane movements of either vehicle as they approached the area of impact, other than that both vehicles were travelling westbound. When the collision occurred both vehicles were in lane 3. As the result of this collision the rider of the Kawasaki suffered serious life-threatening injuries.

[58] As outlined above, Officer Braun testified that no speed analysis was possible, nor was there an ability for him to determine the pre-collision movements of the involved vehicles. Thus, Officer Braun's analysis captured mainly what took place after the point of impact, not before. Similarly, the bulk of the evidence from the sources listed above provide information solely about the circumstances following the point of impact.

[59] Crucially, Mr. Pirzada did not testify (understandably based on his injuries). Thus, there was no direct evidence from Mr. Pirzada about his driving before the collision, the driving of Mr. Marshall before the collision, or the circumstances surrounding the collision.

Factual Findings

[60] I make the following findings of fact:

i) Mr. Marshall merged onto the QEW westbound from Third Line at the preliminary portion of the merge lane;

ii) Mr. Pirzada was driving erratically shortly before the collision;

iii) The front of Mr. Pirzada's motorcycle struck the rear left side of Mr. Marshall's vehicle, after Mr. Marshall had merged into lane 3, while both vehicles were in lane 3 (lane immediately left of the merge lane)

I will address these findings in turn.

i) Mr. Marshall merged onto the QEW westbound from Third Line at the preliminary portion of the merge lane

[61] The evidence is clear that Mr. Marshall merged onto the QEW at the preliminary portion of the merge lane that follows the Third Line on-ramp. Specifically, the portion of the merge lane under the Third Line overpass.

[62] The totality of evidence (particularly the evidence summarized above at para. 44-45) shows that Mr. Marshall moved from the merge lane to lane 3 while under the Third Line overpass and then contacted Mr. Pirzada's motorcycle.

[63] As stated, the prosecution submits that Mr. Marshall's merge at this location prevented him from gathering sufficient information about established traffic to merge safely. The prosecution also submits that Mr. Marshall's merge was "out of sequence" and was completed quickly to "overtake" the vehicle ahead of him.

[64] Respectfully, I do not accept these submissions. While I agree that Mr. Marshall may have benefitted from remaining in the merge lane for a longer period, the relevant question is whether his merge at that point was safe. This depends on the surrounding circumstances. The point where Mr. Marshall merged was marked by a dashed line; it was beyond the "bullnose", which is marked with a solid line. Thus, drivers entering the QEW at this location are permitted to merge at this point. Furthermore, it was established in evidence that there was a view of the highway from the Third Line on-ramp (and vice versa), which would have allowed Mr. Marshall and other drivers to gather some information about established traffic before merging.

[65] Critically, Mr. Marshall provided evidence in his statement to Officer Choi at the police station that he did gather information about traffic on the highway before merging, by checking his sideview mirror and his blind-spot, while signalling his lane change. In fact, Mr. Marshall stated that he saw the motorcycle before merging; he testified that it was in the "middle lane" about 1.5 car lengths back. That Mr. Marshall took these steps – the steps expected of prudent drivers – before merging onto the QEW is exculpatory. Of course, how, and why he then collided with Mr. Pirzada's motorcycle remains an open question.

[66] To explain Mr. Marshall's merge and the subsequent collision, the prosecution relies heavily on the testimony of Mr. Walker. If Mr. Walker's testimony is both credible and reliable; if he was accurate about the relative positions of the involved vehicles, their speed, and Mr. Marshall's driving behavior, it is likely that Mr. Marshall's driving was careless. However, I agree with the defence's submission that there exist some reliability concerns with Mr. Walker's account.

[67] First, aspects of Mr. Walker's testimony were internally inconsistent, at least in their descriptions. He testified that there was "good space to merge" for Mr. Marshall (which corroborates Mr. Marshall's account), yet he described that the motorcyclist had to take immediate evasive action to slow or stop. These two descriptions are in conflict.

[68] Second, Mr. Walker testified that he was approximately 100 meters behind the motorcycle with a clear line of sight. However, this conflicts with the testimony of Mr. Kavanaugh, who described that there were approximately 4-5 vehicles between him and the motorcycle, while a black VW Golf was directly in front of him. Mr. Kavanaugh also testified that shortly before merging in front of him, this black VW Golf passed him on the right. This conflicts with Mr. Walker's testimony about his positions on the highway and his line of sight. The prosecution was unable to rectify these inconsistencies. In fact, even the prosecution was "confused" about how the black VW Golf could have passed Mr. Kavanaugh on the right before the collision. Further, the prosecution did not establish the relative positions of witnesses' vehicles on the QEW before the collision. In fairness, this would have been difficult, as the testimony of these witnesses about their positions relative to the collision created a confused picture. After hearing all the evidence, I was not able to confidently place these vehicles in space before the collision.

[69] Turning to the prosecution's submission that Mr. Marshall merged "out of sequence" to "overtake" the vehicle ahead of him. This is based on Mr. Walker's interpretation of what he saw. Mr. Walker's opinion was that Mr. Marshall tried to pass the vehicle ahead of him. This version is not supported by the evidence of Mr. Marshall; Mr. Marshall did not state to police that he was attempting to overtake the vehicle ahead of him. Further, as stated above, there is no evidence from Officer Braun about the speed or movements of Mr. Marshall's vehicle before the collision, nor the speed or movements of the "white car" ahead of him.

[70] Moreover, the prosecution submits no authority of the need for drivers merging onto a highway to do so "in sequence" to be safe. Indeed, I do not think this is the prosecution's claim. Thus, I do not accept that Mr. Marshall was obligated to allow the vehicle ahead of him to merge first. This may have been beneficial in the circumstances, but is not necessary, even for a prudent driver. The onus lies with the prosecution to show that it was imprudent and unsafe for Mr. Marshall to have merged before the vehicle ahead of him in all the circumstances. In my view, they have not done so.

[71] Finally, I also cannot accept the prosecution's submission that Mr. Marshall's sideview mirror impaired his view and contributed to his overall inattention. As mentioned, it is obvious that Mr. Marshall's sideview mirror offered a restricted view to the rear, due to the extent of its corrosion. However, evidence is lacking that the mirror actually impaired his view. There was also no evidence that a sidemirror in this condition is prohibited; it was described by more than one police officer as "legal". Therefore, the only finding I can confidently make with respect to Mr. Marshall's driving before the collision is that he merged at the preliminary portion of the merge lane.

ii) Mr. Pirzada was driving erratically shortly before the collision

[72] There is conflicting evidence about Mr. Pirzada's driving before the collision. However, in my view, Mr. Walker's account is mired by the reliability concerns noted above, which raise doubts about the accuracy of his observations. Conversely, the accounts of Mr. Dziwak and Ms. Mundell are reliable, and corroborate one another. Of course, it is possible that Mr. Pirzada was driving erratically leading up to the Third Line overpass, and was then driving properly at the point of impact. However, to make such a finding, I would need to rely solely on the testimony of Mr. Walker, as he was the only witness claiming to have seen Mr. Pirzada's driving immediately before the collision. I cannot do so for the reasons already stated.

[73] Both Mr. Dziwak and Ms. Mundell saw a motorcycle driving erratically at Trafalgar Road heading westbound on the QEW. Both testified that the motorcycle was swerving within, and outside of its lane. Both testified that this swerving impacted other drivers, including forcing other drivers to take evasive action. Ms. Mundell observed this motorcycle almost hit the rear end of another vehicle. While Mr. Dziwak was 80% to 90% sure that the motorcycle he observed was involved in the collision, Ms. Mundell was all but 100% sure. This evidence was compelling, and raised vital questions about whether Mr. Pirzada was driving in a reckless manner immediately before the collision, which would have prevented Mr. Marshall (or any prudent driver in his position) from merging safely.

iii) The front of Mr. Pirzada's motorcycle struck the rear left side of Mr. Marshall's vehicle, after Mr. Marshall had merged into lane 3, while both vehicles were in lane 3 (lane immediately left of the merge lane)

[74] For this finding, I rely almost exclusively on the conclusions of expert collision reconstructionist Officer Braun. Officer Braun's conclusions (outlined above at para. 57) were based on his review of all available evidence, save and except the testimony at trial. His conclusions are both credible and reliable. Officer Braun added, in cross examination, that Mr. Marshall could have been the one to strike Mr. Pirzada, or Mr. Pirzada could have been the one to strike Mr. Marshall; the physical evidence and analyses do not reveal which of these two scenarios occurred.

[75] Importantly, both vehicles were fully in lane 3 when contact occurred. In other words, Mr. Marshall had completed his merge into lane 3 before the point of impact. The point within the lane where contact occurred was toward the "top" of the lane; the southern portion, near lane 2. Beyond this, the evidence in totality reveals little about how this collision unfolded and I can make no further findings about it.

Legal Findings

[76] This case requires the analytical approach outlined in W.(D.). There is exculpatory evidence that arose through the Crown's case, which must be assessed and weighed against the evidence that favors the Crown's theory. At the same time, I must answer two important questions: i) given there was an accident in this case, are there reasonable inferences that can be drawn from this fact, other than Mr. Marshall was driving carelessly? and ii) does the evidence as a whole, including a lack of evidence, support that Mr. Marshall's driving fell below the standard of an ordinarily prudent driver?

[77] First, in my view, there is an alternative reasonable inference that can be drawn from the facts surrounding this collision. Namely, that Mr. Pirzada was driving erratically immediately before the collision, and caused or contributed to the collision.

[78] The evidence from Mr. Marshall's statements, and the observations of Mr. Dziwak and Ms. Mundell support this alternative inference. Mr. Marshall stated that he saw Mr. Pirzada's motorcycle before merging and merged, nonetheless. It stands to reason, that Mr. Marshall would have taken steps to avoid a collision if one were foreseeable. It was clear that the collision was not foreseeable to Mr. Marshall, as evidenced by his shock following the collision and lack of certainty about whether he struck Mr. Pirzada.

[79] Further, Mr. Pirzada had an equal obligation to be considerate of Mr. Marshall's merging vehicle, and to drive safely at this critical moment. Importantly, it was reasonable for Mr. Marshall to anticipate safe driving from Mr. Pirzada at this critical moment as outlined in Beauchamp, supra. If Mr. Pirzada was driving erratically at this critical moment, in the fashion described by Mr. Dziwak and Ms. Mundell, his driving goes well beyond the "imperfect" driving described in Dillman, supra, that Mr. Marshall needed to account for. The lack of testimony from Mr. Pirzada on this point leaves open questions about his driving. That Mr. Pirzada may have been driving erratically, and may have made it difficult for Mr. Marshall to merge safely in all the circumstances, is not a speculative scenario; it is based on evidence. Thus, the prosecution needed to exclude this possibility. In this case, they have failed to do so sufficiently.

[80] Second, in my view, the totality of evidence does not prove that Mr. Marshall's driving departed from what is expected of an ordinarily prudent driver in all the circumstances. Again, his evidence was that he checked his sideview mirror, turned his head to check his blind spot, and signalled his turn, before merging into a gap in traffic. These are the precise steps that a prudent driver should take before merging. The prosecution was unable to sufficiently call into question the credibility or reliability of Mr. Marshall's evidence. At the same time, the prosecution was unable to rectify the inconsistencies in Mr. Walker's testimony. Together, this raises doubt about the prosecution's theory.

Conclusions

[81] It is tragic that Mr. Pirzada was so seriously injured in this collision. It is also unfortunate that the witnesses in this case, including Mr. Marshall experienced such a traumatic event. This was a difficult case for all parties involved, and a difficult case to make findings on. After considering the totality of the evidence, I find there exists reasonable doubt about whether Mr. Marshall drove carelessly in all the circumstances. Thus, I must dismiss the charge against him.

Howard, T.J., Justice of the Peace

[1] see also R. v. Globocki, [1991] O.J. No. 214, para. 61; R. v. Lattimore, [2015] O.J. No. 5572, para. 10