Court File and Parties

COURT FILE NO.: CR-17-00000087-00AP DATE: 20 181113 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Appellant Tanya M. Kranjc for the Appellant

- and -

DHANBIR SHERGILL Respondent Alan Risen for the Respondent

HEARD: May 14, 2018

Reasons for Decision

Summary Conviction Appeal

CORRICK J.

Introduction

[1] Tragically, on December 19, 2014, Amaria Diljohn-Williams, a 14-year-old girl, was struck and killed by a TTC bus driven by the respondent, Dhanbir Shergill. The respondent was charged with dangerous driving causing death and failing to remain at the scene of an accident, contrary to the Criminal Code, as well as careless driving and failing to remain at the scene of an accident, contrary to the Highway Traffic Act.

[2] Evidence taken at a preliminary inquiry on the Criminal Code offences was heard by The Honourable Justice A. Hall on February 1, and 2, 2016. After receiving written submissions and hearing oral submissions, Justice Hall discharged the respondent on both criminal charges on June 13, 2016.

[3] With the consent of counsel, Justice Hall presided over the trial of the Highway Traffic Act offences on June 19, 2017. It was agreed that the evidence taken at the preliminary inquiry would apply to Highway Traffic Act trial. The Crown called one additional witness, and filed additional exhibits.

[4] At the outset of the trial, the Crown indicated that it would not be proceeding on the fail to remain charge, and it was dismissed by the court.

[5] On July 13, 2017, Justice Hall dismissed the careless driving charge against the respondent.

[6] The Crown appeals the dismissal on the grounds that the trial judge erred in misapprehending the evidence, and in misapplying the law of careless driving. She asks the court to set aside the acquittal, enter a conviction, and pass sentence on the respondent. Alternatively, she submits that a new trial ought to be ordered.

[7] For the following reasons, I agree. The appeal must be allowed, and a new trial ordered.

Crown Evidence

[8] Certain evidence was not in dispute. On December 19, 2014, the respondent was an employee of the TTC. He was operating a bus northbound on Neilson Road near the intersection of Finch Avenue East on December 19, 2014 at approximately 5:35 p.m. Ms. Diljohn-Williams was a passenger on that bus. She left the bus at a bus stop on Neilson Road, just south of Finch Avenue East.

[9] After Ms. Diljohn-Williams disembarked, the respondent proceeded slowly to the intersection of Neilson Road and Finch Avenue East, where he stopped. The bus the respondent was driving struck Ms. Diljohn-Williams at approximately 5:37 p.m. as it was turning right to proceed eastbound on Finch Avenue East. Ms. Diljohn-Williams was in the crosswalk proceeding from the east to the west side of Neilson Road when she was struck. She died as a result of her injuries. The respondent, unaware that he had struck Ms. Diljohn-Williams, continued on his route, driving in the same manner as he had prior to the accident.

[10] The bus was equipped with four cameras that captured events that afternoon. Sgt. Reimer, the lead investigator in the case, seized the videotapes from the TTC. It was agreed by counsel that he would testify about the contents of the videotapes to provide context for the court. He had viewed the videotapes and could identify certain individuals and locations.

[11] Sgt. Reimer identified Ms. Diljohn-Williams exiting the rear door of the bus, walking eastbound and proceeding northbound before she disappears from the camera. Five seconds later, movement can be seen in the window behind the front door of the bus, which appears to be a person walking. He testified that Ms. Diljohn-Williams entered the north side of the crosswalk from the sidewalk. In cross-examination, he agreed that from the video, Ms. Diljohn-Williams did not appear to stop at the intersection before entering the crosswalk, that she appeared to be walking briskly, and that she did not appear to look at the bus as she stepped out into the crosswalk. She was struck by the front of the bus 1.3 seconds after stepping off the curb. He also agreed that, apart from the collision, the respondent appeared to be driving safely.

[12] Most of Sgt. Reimer’s evidence was based on his review of the video from Camera 1, which was mounted on the ceiling of the bus slightly behind the driver’s compartment. It is angled downward toward the front door of the bus. It is not the view the respondent would have had while seated in the driver’s seat.

[13] Sean Archibald and his son were seated in the first three seats on the passenger side of the bus at the time of the collision. He testified that he felt a thump as the bus turned east on to Finch Avenue from Neilson Road. Just prior to that, he looked out the window and saw a girl in a black jacket standing still by herself next to a light pole at the southeast corner of Neilson Road and Finch Avenue. She was facing west. He marked the position of the girl he saw on a photograph, which indicated that she was standing on the sidewalk in the path of the crosswalk. After he felt the thump, he looked back, but did not see the girl.

[14] Mr. Archibald testified that he saw the girl for a few seconds. He described her as being in her twenties or thirties, of average height, perhaps 5’5”, with black hair, and wearing a black form-fitting jacket. He saw this girl while the bus was stopped at a red light at Neilson Road and Finch Avenue. He did not notice the colour of the traffic light on Finch Avenue at the time, but noticed cars travelling east and west.

[15] Mr. Archibald was shown the video from Camera 1 during cross-examination. He agreed that the video did not show anyone standing at the southeast corner of Neilson Road and Finch Avenue when the bus approached and stopped at the intersection. He also agreed that it appeared from the video that the bus was moving when Ms. Diljohn-Williams stepped briskly in front of it.

[16] When shown portions of the video that depicted Ms. Diljohn-Williams on the bus, Mr. Archibald agreed that she was wearing a light green bulky winter coat.

[17] Mr. Archibald also testified that he had no concerns about the respondent’s driving; he appeared to be driving safely. He told police after the accident that the respondent was checking traffic to see if he could make a safe right turn when he stopped at the intersection. He testified that he did not see the respondent checking for traffic, but inferred it from the manner of the respondent’s driving.

[18] Office Vuong gave expert opinion evidence in accident reconstruction. His qualifications to do so were not contested. He took photographs and measurements at the scene. He also examined the bus that the respondent had been driving that evening.

[19] He testified that Ms. Diljohn-Williams was 8.5 cm. taller than the distance from the ground to the bottom of the bus’ windshield. He also testified that the bus could be hydraulically raised or lowered, which would change the distance from the ground to the bottom of the windshield. He was unable to say if the bus was at the same height when he measured it as when the respondent was driving it, although he testified that his experience was that the bus was lowered when it was letting off passengers and then returned to driving height. He also testified that the driver’s seat could be raised or lowered by the driver. He did not know if the seat was in the same position when he examined it as it was when the collision occurred.

[20] Officer Vuong testified that the bus driven by the respondent was travelling less than 13 km/hr. when it struck Ms. Diljohn-Williams. He opined that the respondent would have been able to stop before striking Ms. Diljohn-Williams if he had been looking in the direction in which he was travelling. He further opined that the respondent should have been able to avoid running over Ms. Diljohn-Williams if he had applied his brakes as soon as the bus struck her.

[21] From his review of the video surveillance, Officer Vuong opined that the respondent was turning right on a red light, and Ms. Diljohn-Williams was walking across Finch Avenue on a green light. He agreed that Ms. Diljohn-Williams appeared in the video to be walking briskly. She was only visible for one or two seconds, and she did not look at the bus before crossing. Contrary to the respondent’s factum, Officer Vuong testified that, in his opinion, Ms. Diljohn-Williams stepped on to the road before the bus started to move.

[22] Wayne Reynolds was the sole witness called by the Crown at the careless driving trial. He is employed by the TTC as a Division Manager, responsible for investigating accidents. He testified that the bus the respondent was driving has seven blind spots. There are two large mirrors, one on each side of the bus, that are remotely controlled by the driver, which help to minimize blind spots, but do not eliminate them. The blind spots can change depending on the position of the driver’s seat, the angle at which the back support is tilted, and the size and height of the driver. The seat and back support can be adjusted by the driver.

[23] Sgt Reimer, Officer Vuong and Mr. Reynolds all agreed that to safely turn right on a red light, a driver must look to the left for oncoming vehicular and pedestrian traffic.

[24] The respondent called no evidence.

The Position of the Parties

[25] Crown counsel submits that the trial judge erred in misapplying the law of careless driving by improperly focusing on the respondent’s pattern of driving both preceding and after the collision, rather than focusing on the respondent’s driving at the time of the collision, and by relying on the decision of R. v. Globocki, [1991] O.J. No. 214 (Ont. C. J.) to find the respondent not guilty.

[26] She further submits that the trial judge erred concerning the substance of evidence and failed to advert to evidence that was material to relevant issues.

[27] Defence counsel submits that the trial judge properly applied the law of careless driving, including the principle enunciated in Globocki, and that this court must defer to the findings of the trial judge unless he made a palpable or overriding error, which the respondent argues, he did not.

Analysis

[28] The trial judge accurately set out the law of careless driving in his reasons. He acknowledged that it was a strict liability offence, requiring the Crown to prove only the actus reus beyond a reasonable doubt. He correctly stated the elements of careless driving, and identified that the accused person could avoid liability by proving that he took all reasonable care.

[29] I do not accept the argument that the trial judge improperly focused on the respondent’s driving, both before and after the collision, in light of the manner in which the Crown at trial argued the case. The trial Crown, who was not Ms. Kranjc, urged the trial judge not to focus solely on the few seconds during which Ms. Diljohn-Williams stepped on to the roadway, but to consider the 15 seconds that elapsed between the time she disembarked from the bus and the time that she was struck. Within those 15 seconds, the respondent drove the bus in the designated lane at an appropriate speed, stopping where he was required to at the intersection. The trial judge was required to consider all of the circumstances, and his consideration of the respondent’s driving immediately before the collision was appropriate.

[30] The Crown’s submissions regarding the misapprehension of evidence and the trial judge’s reliance on the decision of Globocki are interrelated in this way. The trial judge found that the respondent could not have anticipated that Ms. Diljohn-Williams would step off the sidewalk into the path of the moving bus. He relied on the following passage from Globocki, which was cited by Justice Durno in R. v. Kinch, [2004] O.J. No. 486 at para. 52:

A driver is entitled to make reasonable assumptions about the behaviour expected of other users of the road, and it is not unreasonable to assume that a pedestrian crossing the roadway at a time when vehicles are approaching will not simply walk in front of oncoming vehicles.

[31] The Crown submits that the trial judge misapprehended the evidence in finding that the bus was moving when Ms. Diljohn-Williams entered the crosswalk. But, in addition to that, the Crown argues that the principle in Globocki has no application to this case.

[32] I agree that Globocki has no application to this case. It is important to consider the context in which the passage referred to in Kinch was written. In Globocki, the accused struck a pedestrian, who was jaywalking. The pedestrian entered the lane beside the one in which the accused was driving, but continued walking in front of the accused’s moving car. The accused struck the pedestrian, who died of her injuries. Those circumstances are very different than those in the case at bar, where a pedestrian, who has the right of way, crosses in a crosswalk, and is struck by a vehicle making a right-hand turn on a red light.

[33] Defence counsel argues that the principle is of more general application as illustrated by Justice Durno’s reliance on it in Kinch. However, Justice Durno did not apply this principle in Kinch. He cited Globocki to illustrate the proposition that the fact that an accident has resulted in a death is not relevant to an assessment of whether the accused driver has departed from the standard of care, which would warrant a finding of careless driving.

[34] I find that the trial judge erred in relying on Globocki to determine that the respondent’s driving was not careless.

[35] More significant than this is what I find to be the trial judge’s misapprehension of the evidence.

[36] To justify appellate interference with a conviction on the basis of a misapprehension of the evidence, the appellant must establish that the alleged misapprehension of evidence played a key role in the trial judge’s reasoning process that led to a conviction: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at para. 93. Justice Doherty defined the misapprehension of evidence as, “a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence:” Morrissey, at para. 83.

[37] The trial judge failed to advert to some critical pieces of evidence. First, he failed to advert to Mr. Archibald’s evidence that, before the collision, he saw a pedestrian standing on the sidewalk at the light standard facing west in the path of the crosswalk. He agreed that the pedestrian was not seen on the video surveillance. Nevertheless, he did not resile from his evidence that he saw the pedestrian from where he was seated in the bus.

[38] Second, the trial judge did not advert to Officer Vuong’s evidence at all, including his evidence that Ms. Diljohn-Williams stepped on to the roadway before the bus started moving. Nor did he advert to Officer Vuong’s evidence that the respondent could have stopped the bus had he seen Ms. Diljohn-Williams, given the speed at which the bus was travelling.

[39] Thirdly, the trial judge failed to advert to the evidence of Sgt. Reimer, Mr. Archibald and Officer Vuong that the respondent was facing a red light, and that Ms. Diljohn-Williams was crossing the road within a crosswalk on a green light. If the trial judge accepted this evidence, it would have led to the conclusion that Ms. Diljohn-Williams had the right of way.

[40] Not every misapprehension of evidence by a trial judge justifies appellate interference with the verdict. The appellant must meet a high standard, and establish a link or nexus between the alleged misapprehension and the key elements of the trial judge’s reasoning process that led to the respondent’s acquittal.

[41] In this case, the trial judge was required to determine whether the Crown had proved that the respondent, “in the light of existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances”: R. v. Beauchamp, [1953] O.R. 422 (Ont. C. A.), at para. 21. In my view, his failure to advert to the evidence I have outlined played a significant role in the trial judge’s reasoning process, which led to the respondent’s acquittal.

[42] In light of the errors made by the trial judge, the verdict of acquittal must be set aside. The appeal is allowed.

[43] The Crown submits that it is clear from the trial record that the respondent is guilty of careless driving. She asks that this court find the respondent guilty and impose sentence.

[44] In my view, this is not an appropriate case to enter a verdict of guilty. The trial judge did not assess the evidence of Officer Vuong and Mr. Archibald. Such an assessment is necessary in this case, and must be made by a trier of fact who hears the witnesses testify.

Conclusion

[45] In the result, I allow the appellant’s appeal, set aside the acquittal, and order a new trial.

[46] I order Mr. Shergill to appear in courtroom #407 at 1911 Eglinton Avenue East on Friday, November 30, 2018 at 10:00 a.m. to set a date for trial.

Corrick J. Released: November 13, 2018