Citation: R. v. Hamid, 2008 ONCJ 246

IN THE MATTER OF The Highway Traffic Act, R.S.O. 1990, c. H.8

Between

Her Majesty the Queen

prosecutor

and

Mohammed Eza HAMID

defendant

Ontario Court of Justice Toronto, Ontario

Quon J.P.

Reasons for Judgment

Charges: s. 142(1) H.T.A. – “turn not in safety”

s. 5(1), O. Reg. 340/94 – “class G-1 license holder unaccompanied by qualified driver”;

s. 5(1)(3), O. Reg. 340/94 – “class G-1 license holder carry front seat passenger;

s. 7(1)(c)(i), H.T.A. – “drive motor vehicle no current validation on plate”.

Trial held: February 25 and 26, 2008 Judgment rendered: May 26, 2008 Counsel: V. Oliviera, provincial prosecutor W. Jones, agent for the defendant

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Cases Considered or Referred To: Aherne v. Kaliel, [1945] 1 W.W.R. 331, [1945] A.J. No. 17 (QL) (Alta. S.C.); affirmed [1945] 3 W.W.R. 524, [1945] A.J. No. 51 (QL) (Alta. C.A.). Fleming v. Toronto Railway Co. (1911), 25 O.L.R. 317, [1911] O.J. No. 40 (QL) (O.C.A.) per Moss C.J.O., Garrow, Maclaren, Meredith and Magee JJ.A. Desjardins v. McGowan (1973), 6 N.B.R. (2d) 536, [1973] N.B.J. No. 79 (QL) (N.B.C.A.). Jessop v. Heffner, [1949] B.C.J. No. 29 (QL), [1949] 2 W.W.R. 696 (B.C.C.A.). Joseph Eva, Limited v. Reeves (1938) 2 K.B. 393. Morrison v. Dunlap, [1959] O.J. No. 168 (QL), O.W.N. 164, 18 D.L.R. (2d) 393 (O.C.A.) per Aylesworth, LeBel and Morden JJ.A. Payne v. Lane, [1949] O.J. No. 65 (QL), [1949] O.W.N. 284 (O.H.C.) per Barlow J. R. v. Berniquez (1996), 112 C.C.C. (3d) 380 (Que. C.A.). R. v. Brander, [2003] A.J. No. 1112 (QL) (A.Q.B.). R. v. Fliss, [2002] S.C.J. No. 15 (QL), [2002] 1 S.C.R. 535 (S.C.C.). R. v. L. (M.V.), [1988] A.J. No. 640 (QL), 12 M.V.R. (2d) 33, 62 Alta L.R. (2d) 44, 90 A.R. 164 (Alta. Prov. Ct.). R. v. Meddoui, [1990] A.J. No. 1070 (QL), 61 C.C.C. (3d) 345 (Alta. C.A.). R. v. Neal, [2008] O.J. No. 720 (QL), 2008 ONCJ 42 (O.C.J.) per Stone J. R. v. Reynoso, [2004] A.J. No. 62 (QL) (Alta. Prov. Ct.).

R. v. Richardson, [2003] O.J. No. 3215 (QL) (O.C.A.) per O'Connor A.C.J.O., Weiler and Abella JJ.A. R. v. Salutin, [1979] O.J. No. 806 (QL), 11 C.R. (3d) 284 (O.C.A.) per Brooke, Houlden and Thorson JJ.A. R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, 40 C.C.C. (2d) 353 (S.C.C.). R. v. W. (D.), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91 (QL) (S.C.C). Strasser v. Roberge, [1979] 2 S.C.R. 953 (S.C.C.). Statutes, Regulations and Rules Cited: Highway Traffic Act, R.S.A. 1980, c. H.7, s. 95(2). Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 7(1)(c)(i), 141(5), 142(1), 144(15).

Ontario Regulation 340/94 – “Drivers’ Licenses”, ss. 5(1), 5(1)(3), 5(2).

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Exhibits entered: Exhibit #1 - two binders of photographs taken on June 1, 2007, showing views of intersection at

Brimley Road and Ellesmere Road in the City of Toronto, including photographs of motor vehicle and motorcycle involved in accident, debris, vehicle parts, skid marks, motorcycle helmet (taken on June 2, 2007). Binder one has photographs numbered 1 to 132. Binder two has photographs numbered 133 to 199 and photographs of the motorcycle helmet numbered 1 to 18.

Exhibit #2 - one-page computer-generated diagram (to scale) prepared by Officer Stephanie Nassis for

collision occurring on June 1, 2007, of intersection at Brimley Road and Ellesmere Road in the City of Toronto showing skid marks, location of various vehicles, equipment, curbs, evidence and road markings.

Exhibit #3 - seven-page document of Mohammed Huza Hamid’s question and answer statement taken

by a police officer (P.C. Jason Orchard) and in handwriting of police officer with Mohammed Huza Hamid’s signature, entered as “past recollection recorded”; and a three-page copy of the typed transcription of the handwritten question and answer statement. Also includes amendments made by court in red ink to second page of Mohammed Huza Hamid’s answers, concerning lane in which motorcycle had been travelling in before collision.

Exhibit #4 - fifteen-page resume of Detective Robin Laningan (collision reconstructionist). Exhibit #5 - one-page computer-generated measurement diagram prepared by Detective Robin

Laningan (to scale) of intersection at Brimley Road and Ellesmere Road in the City of Toronto for collision occurring on June 1, 2007.

. Exhibit #6 - two-page report dated September 25, 2007, from Hao Le, traffic engineer for the City of

Toronto, regarding the signal timing of the traffic signals at the intersection of Brimley Road and Ellesmere Road.

Reference Material Cited: Scott C. Hutchison, David S. Rose, and Phillip Downes, The Law of Traffic Offences, 2d ed. (Toronto, Ontario: Carswell, 1998), p. 241. David M. Paciocco and Lee Stuesser, The Law of Evidence, 4th ed. (Toronto, Canada: Irwin Law Inc., 2005), pp. 378-379, 382.

John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto, Ontario: Butterworths, 1999), paras. 16.78 and 16.89.

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1. INTRODUCTION [1] This trial concerns a traffic accident and a charge laid under Ontario’s Highway

Traffic Act. Unfortunately, it also involves a fatality that resulted from a collision that occurred on June 1, 2007, at 7:10 p.m., between a Honda motor vehicle driven by the defendant, Mohammed Eza Hamid and a Kawasaki motorcycle driven by Paolo Monaco (“the motorcyclist”) at the intersection of Brimley Road and Ellesmere Road in the City of Toronto. Tragically, the motorcyclist died as a result of the collision between these two vehicles. After the police investigated the circumstances surrounding the collision, the defendant was charged with the offence of “turn not in safety” contrary to s. 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“H.T.A.”). Specifically, the prosecution contends the defendant had failed to first see that he could make the left turn in safety before he turned in front of and across the path of the oncoming motorcyclist. And, although the motorcyclist had braked forcefully he could not stop in time nor avoid hitting the rear passenger side of the defendant’s vehicle at a high velocity.

[2] In addition, the defendant was charged with committing three other regulatory

offences on the night of the collision. However, at the arraignment stage of the trial the defendant entered guilty pleas on those three additional charges. Those charges were for: (1) driving a motor vehicle while being a class G-1 license holder unaccompanied by a qualified driver contrary to s. 5(1) of Ont. Reg. 340/94; (2) driving a motor vehicle while being a class G-1 license holder that carried a front seat passenger contrary to s. 5(1)(3) of Ont. Reg. 340/94; and (3) for driving a motor vehicle with no current validation on license plate contrary to s. 7(1)(c)(i) of the H.T.A.

[3] For the “turn not in safety” charge, the defendant argues that he should not be

found guilty of committing that offence because he contends he had been prudent in looking and waiting for oncoming traffic, had proceeded cautiously, and only initiated the left turn when he had reasonably and honestly believed it had been safe to do so. The defendant also contends that he did not see the motorcycle coming towards his vehicle until it had been too late for him to react. Furthermore, when he decided to proceed with making the left turn, the traffic light for both the motorcyclist and himself had just changed to amber, and as such, the defendant submits he had reasonably believed that any oncoming motorists would have stopped for that amber traffic light as required by law and not have improperly proceeded into the intersection. In addition, the defendant points out that when he had commenced his left turn after the light had changed to amber, he had not anticipated or had foreseen that there would have been a powerful motorcycle coming through the intersection towards his vehicle at a high rate of speed, and which had been exceeding the posted speed limit by at least 21 k.p.h. In other words, the defendant argues that before he began his left turn he had made all reasonable and prudent efforts to see whether any vehicles were approaching, but that he did not make an allowance for the approach of a vehicle running an amber

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light while exceeding the speed limit at a high rate of speed. Accordingly, for those grounds the defendant submits that he has shown on a balance of probabilities that he had acted with due diligence by proceeding safely and reasonably in all the circumstances for the time and location, and should, therefore, not be found guilty of contravening the strict liability offence contained in s. 142(1) of the H.T.A.

[4] Alternatively, the defendant argues that he had established the right of way to

proceed and it was the motorcyclist who had made a grave error in judgment, and that if the motorcyclist had been operating his motorcycle diligently then the motorcyclist should not have entered the intersection on an amber light, especially when neither the defendant nor the motorcyclist could see each other.

[5] In response, the prosecution submits the principal issue to be decided is whether

the defendant’s left turn had been properly made in light of his duty to look across his path. On this issue, the prosecution proffers a somewhat paradoxical argument. The prosecution initially argued the defendant had been negligent in proceeding with the turn when his view had been obstructed by the vehicles turning southbound on Brimley Road, yet it later argued the motorcycle would have been visible to the defendant at a certain point in the defendant’s movement in the intersection, despite the obstructed view created by those southbound turning vehicles. For the first basis of its argument, the prosecution contends the defendant had a duty not to proceed with the left turn, since it had not been safe to do so because the defendant’s view had been obstructed by two vehicles in the left turn lane opposite to the defendant’s position, as well as the defendant being able to only see clearly a few feet east of the intersection for some of the westbound lanes. Prudence in this case, the prosecution contends, required the defendant to stop and wait until he could clearly see there were no vehicles approaching in any of the westbound lanes that would have been immediately affected by his left turn, before he actually proceeded to make that turn. For the second basis of its somewhat paradoxical argument, the prosecution adduced expert testimony on sight lines which indicated that the motorcycle would have been first visible to the defendant when the motorcycle was 39.17 meters east of the defendant’s position, even though the basis of the first argument was that a vehicle waiting to turn southbound onto Brimley Road was obstructing the defendant’s view of oncoming traffic. In other words, the prosecution contends that the defendant was both negligent in making the left turn while the defendant’s view of westbound traffic was obstructed and in also not seeing the motorcycle that should have been visible to the defendant when the motorcycle was 39.17 meters east of the defendant.

[6] Furthermore, the prosecution contends that despite the speed limit being

exceeded by the motorcycle and its relatively high velocity, along with the possibility of an amber traffic light facing the motorcyclist when he entered the intersection, the motorcycle still had the right of way since it was travelling straight through the intersection, while the defendant in making the left turn would have been required by law, in any event, to yield to the motorcycle. Moreover, the

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prosecution argues the high speed of the motorcycle would not have negated its visibility to the defendant. Also, the prosecution relies on R. v. Brander, [2003] A.J. No. 1112 (QL) (A.Q.B.), an Alberta case, in which that court found a police vehicle had the right of way, even though it had been exceeding the posted speed limit of 70 k.p.h. and had been travelling at a speed between 110 to 120 k.p.h. on a green light at an intersection and collided with a left-turning vehicle, to support its argument that the motorcycle in the case at bar still had the right of way, although the motorcycle had been travelling 21 k.p.h. or more in excess of the posted speed limit through an amber light.

[7] In addition, the prosecution argues that if the court were to find that the

motorcyclist had entered the intersection when the traffic light was amber, then it contends the traffic light had just turned amber, according to one witness’s account, when the motorcyclist was only three car lengths from the intersection, and as such, the motorcyclist would not have been able to stop his motorcycle safely, or in time, before entering the intersection.

[8] And, in response to the defendant’s argument that the defence of due diligence

had been made out, the prosecution does concur the “turn not in safety” offence is one of strict liability, but does not agree that the defendant has met his burden of proving this defence on a balance of probabilities, in that he had reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or that he had taken all reasonable steps for the circumstances to ensure the left turn could be made safely. Instead, the prosecution contends that the defendant was negligent in making the left turn, since the defendant’s view had been obstructed by those two southbound turning vehicles and the defendant did not have a clear view of oncoming westbound traffic, or that he was negligent in failing to see the motorcycle approach when it should have been visible to him when it was 39.17 meters east of the defendant’s position. In other words, the defendant should not have made the left turn since he failed to see that he could do so safely, and therefore, the defendant should have waited until he did have a clear view before commencing the left turn.

[9] The trial of this “turn not in safety” charge was held on February 25 and 26, 2008.

After hearing submissions from both the defence and the prosecution, I reserved judgment and put the matter over until May 26, 2008, to render my decision. These, therefore, are my reasons for judgment.

2. FACTUAL BACKGROUND [10] The defendant and three others were in the vehicle driven by the defendant on

their way to the Scarborough Town Centre on that fateful Friday evening of June 1, 2007, at 7:10 p.m. The vehicle being driven by the defendant belonged to the defendant’s brother, Mohammed Huza Hamid (“Huza”). The defendant only held a class “G-1” driver’s license at the time. Under Ontario Regulation 340/94 that pertains to drivers licenses, a class “G-1” driver is the designated category for a

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new driver learning to drive. These regulations also require class “G-1” drivers to have a qualified driver in the front seat of the vehicle beside them while they are driving, and restricts who can ride in the front seat beside them, and on which roads they can drive. The passenger in the front seat beside the defendant was his brother “Huza”, who was not an experienced or “qualified driver” as required under s. 5(2) of Ontario Regulation 340/94.

[11] The vehicle being driven by the defendant was a green-coloured 1994 Honda

Accord. It had been travelling eastbound on Ellesmere Road approaching the intersection of Brimley Road. At the same time, the Kawasaki motorcycle operated by Paolo Monaco had been travelling westbound on Ellesmere Road. This motorcycle was equipped with a 900 cubic centimeter engine and, as confirmed by expert opinion, had been designed by the manufacturer for racing. The speed limit on this part of Ellesmere Road is a posted 60 k.p.h. zone. Just before the collision occurred, the defendant had entered the designated left turn lane for eastbound traffic on Ellesmere Road and was moving slowly forward in the intersection waiting to make a left turn, to go north on Brimley Road. When the defendant made the left turn to go northbound on Brimley Road he crossed in front of the motorcycle that was just about to enter the intersection. The motorcyclist had attempted to stop his motorcycle, but was unable to stop in time and struck the Honda motor vehicle at a high rate of speed. In trying to stop, the motorcycle had left visible tire skid marks on the road surface. After a police investigation and preparation of an accident reconstruction report, the defendant was charged on June 14, 2007, under the Highway Traffic Act regime with four regulatory offences, which included making a “turn not in safety” contrary to s. 142(1).

[12] Eleven witnesses testified at the trial. They consisted of Officer Stephanie Nassis,

who conducted the drag sled test, took measurements and prepared a computer-generated diagram of the accident scene; Keith Gravesande, a pedestrian who observed the collision while walking westward towards Brimley Road on the northside of Ellesmere Road; Jay Gabriel, who observed the collision while being the driver of a motor vehicle going southbound and stopped on the northside of Brimley Road facing a red light; Shelly King, who observed the collision as a passenger in Jay Gabriel’s vehicle; Marlo Cavanasag, a rear seat passenger in the defendant’s vehicle; Thomas Hsiao, a rear seat passenger in the defendant’s vehicle; Mohammed Huza Hamid, the defendant’s brother and a front seat passenger in the defendant’s vehicle; Officer Courtney Yourkin, who was the police officer who charged the defendant and took a statement from him; Officer Laurence Dallimore, who took the readings for the drag sled test and inspected the vehicles involved; Detective Robin Laningan, who was qualified as an expert on motor vehicle accident and collision reconstruction and sight lines, and who had calculated the speed of the motorcycle before it had applied its brakes; and Mohammed Eza Hamid, the defendant.

[13] The prosecution also provided the court with demonstrative evidence consisting of

two computer-generated diagrams of the intersection of Ellesmere Road and

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Brimley Road showing measurements and locations of lanes and objects, as well as two albums of over 200 photographs of the intersection, the skidmarks and of the vehicles involved. The court also heard expert testimony from a qualified motor vehicle collision reconstructionist, who calculated the motorcycle’s speed just before its brakes were applied and the velocity of the motorcycle when it collided with the defendant’s vehicle. In addition, the court received a document containing a statement of a witness recorded by a police officer that had been admitted as “past recollection recorded”, due to the witness’s faulty memory.

[14] The following is a summary of the eleven witnesses’ testimony:

(a) Testimony of Officer Stephanie Nassis [15] Officer Nassis testified she is presently assigned to the accident reconstruction

office of the Toronto Police Service and had assisted in measuring the scene evidence of a motor vehicle accident involving a fatality that occurred on Friday, June 1, 2007, at the intersection of Brimley Road and Ellesmere Road. She said she had been called to attend the accident scene at this intersection at 7:29 p.m., and arrived there at 7:59 p.m. Upon arriving at the scene, Nassis said she had been informed by another officer already at the accident scene that it was a “vital sign absent” situation.

[16] Nassis said she then assisted with the setting up of equipment. This included

setting up an Electronic Distance Measurement Instrument (EDMI) that can accurately measure horizontal and vertical distances. She said this is a device with an electronic data recorder that sits on a tripod. She also said she was assisted by Officer Delos Rios who would hold the prism pole that works in conjunction with the EDMI to obtain distances. She said she had been trained to use these devices in September 2006. She also said these devices were working properly on that date. In addition, she said she had used the compass to find true north and had set up the tripod over a pin in the cement. She said she then levelled the EDMI and measured distances. In addition, she said the EDMI was accurate within a millimeter and that measurements taken by the EDMI were rounded off by the device to two decimal places.

[17] In addition, Nassis said she had been at the scene working with the lead accident

reconstructionist, Detective Robin Laningan. [18] Furthermore, Nassis testified she had used two fixed reference points that were

permanently in the cement. These were 2 sewer grids. She also used a tape measure to verify her distance readings. This allowed her to conclude that the EDMI was in working order. She then took distances of various points in the intersection and recorded them into the data recorder. After finishing taking measurements at the intersection, Nassis said she returned to the police station and downloaded the measurements she had obtained into the police computer. She then created a computer-generated diagram (Exhibit #2) of the Brimley Road

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and Ellesmere Road intersection with measurements of various points depicting the location of vehicles and evidence located on the road surface of that intersection. She also said that the diagram she created was to scale, with one meter being equal to one millimeter.

[19] In addition, Nassis testified that Brimley Road is a north and south road. For the

northside of Brimley Road, she said there are two lanes going southbound with a turn lane southbound, and for northbound there are three lanes that merge. And, for Ellesmere Road, she said it is road that runs east and west with three lanes and a turn lane in both directions.

(b) Testimony of Keith Gravesande

[20] Keith Gravesande testified he is employed with the federal government and is

involved in contracts and procurement. He has been driving for 24 years and thinks he has a class “G” drivers license.

[21] Gravesande also said he has a clear recollection of the accident that occurred on

June 1, 2007, involving a fatality at the intersection of Brimley Road and Ellesmere Road. He testified that when he observed the collision between the defendant’s vehicle and the motorcycle he was about 70 to 80 feet from Brimley Road. He said this was about 7:45 p.m. in the evening.

[22] Furthermore, Gravesande said just before the collision he was walking alone

westward on the northside of Ellesmere Road towards Brimley Road. Gravesande said he takes a walk every single day and that he was taking his normal route that evening. He also said he lives in the neighbourhood. In addition, he said he normally walks south on McCowan Road, then west on Ellesmere Road, and then turns right on Brimley Road and walks north on the eastside of Brimley Road.

[23] However, Gravesande also said he had not been really paying attention to the

traffic, but when asked about the condition of the traffic he said that on a scale of one to ten, it was a five, with light traffic being a one and heavy traffic being a ten. To clarify, he said that it was medium traffic and not a lot of cars were on the road at that time. He also said the lighting was good and that he had been certain it was not dark out. He further said it had been a clear evening in the spring and not raining.

[24] Gravesande also said he had been paying attention to the traffic light and trying to

gauge when that light would change. He also observed a small car going east on Ellesmere Road in the turning lane that had made a left turn onto northbound Brimley Road. In addition, he said a motorcycle had just past him and when he saw that car turn, he had said to himself in reference to the driver of the car, “What is he doing.” However, he said it had been too late and in a split second the motorcycle had run into the car. He said he saw both the motorcycle and the other car prior to the motorcycle hitting the car. He said he had a clear view and is one

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hundred percent sure the traffic light was showing green when the motorcycle entered the intersection, because there had not been any distractions as he had been walking by himself. He also opined the car should have never made that turn. He also concluded the driver of the vehicle on Brimley Road had misjudged the speed of the motorcycle.

[25] In addition, Gravesande said that when the motorcycle had hit the car, the car

continued the left turn onto Brimley Road and stopped on northbound Brimley Road. Meantime, the motorcycle fell and continued to slide another 200 to 250 feet. He also said he observed the motorcyclist stop right where he fell in the intersection. Furthermore, he said the motorcyclist was lying in the middle of the intersection and never moved. He also said he had been the first to approach the motorcyclist and neither sound nor any speech had emanated from the motorcyclist. He said he then went to direct traffic away from the motorcyclist.

[26] Gravesande also said Ellesmere Road has three lanes and the motorcycle was

travelling in the middle lane. He said he had first observed the motorcycle when he had turn around to look behind him when he had been about 200 to 250 feet away from Brimley Road. He said he had turned around to look behind him in the east direction because he saw some people he knew and had been checking to see if they were walking towards him. He said he had seen the motorcycle four or five seconds before it had actually travelled past him and also heard sounds emanating from the motorcycle. In addition, he said there were also other vehicles going westbound at the time. And, he said the collision occurred two or three seconds after the motorcycle had travelled past him.

[27] Moreover, testifying as a layperson, Gravesande said the motorcycle was not a

huge motorcycle in terms of “CCs”, but that it was an ordinary, basic motorcycle. Also, he said that it was not a racing motorcycle, in that it was not flashy.

[28] Gravesande also estimated the motorcycle had been travelling at about 70 to 80

kilometers per hour. He also could not recall if there were any other motor vehicles in the westbound turning lane on Ellesmere Road or vehicles travelling west or east on Ellesmere Road at that time. However he said that there were seven or eight vehicles on Brimley Road going south that were stopped for a red light, but cannot remember if there were any vehicles on Brimley Road travelling northbound stopped for the red light.

[29] Finally, Gravesande opined that there were no visual impairments for the vehicle

that had made the left turn onto northbound Brimley Road.

(c) Testimony of Jay Gabriel [30] Jay Gabriel testified he was the driver of a “Jimmy SUV” motor vehicle going

southbound on Brimley Road in Scarborough and had been stopped on the northside of Brimley Road facing a red light. He said he likely stopped his vehicle

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when the traffic light for him had turned red. He also said his vehicle was the first car in line at the red light and that his wife was with him in the front seat. In addition, he said he was intending to turn left and go east on Ellesmere Road. He also said he works as an auto mechanic. Furthermore, he said he had been driving for 22 years and possesses a class “G” drivers license.

[31] Gabriel also recalls the motorcycle accident occurred at approximately 6:30 p.m.

on June 1, 2007. In addition, he said there were a couple of cars eastbound on Ellesmere Road turning slowly left for northbound Brimley Road. He also said he had been checking for traffic going westbound on Ellesmere Road. Furthermore, when he had checked to see if there was oncoming traffic he observed a motorcycle travelling in the middle of the left lane.

[32] In addition, Gabriel testified that one of the two cars he observed making a

southbound turn onto Brimley Road had been going slow. Those vehicles, he said, had been in the intersection waiting for traffic to clear so they could turn left. However, he did not recall the size of those vehicles nor is he certain if one of them was a car and the other a van.

[33] In addition, Gabriel said he observed the Honda vehicle involved in the accident

slowly roll into the intersection from the west direction at about three k.p.h. However, he does not believe the Honda had stopped. However, he also said the Honda was already in the intersection when he first observed it facing east on Ellesmere Road. He said he then looked at the motorcycle that was coming and noticed the motorcycle give a quick acceleration. He said he thought the Honda would stop. When he looked back at the motorcycle he observed the motorcycle braking hard while trying to stop. Also, he had observed the motorcycle clearly for about five to ten seconds before the collision.

[34] Gabriel also said he had been about 15 to 20 feet north of the actual collision and

that his view of the collision had not been obstructed. Moreover, he said he could see to the top of the hill or for about 70 yards for westbound traffic.

[35] Furthermore, Gabriel said he did not actually see the colour of the lights for east or

westbound traffic on Ellesmere Road. However, he believes the traffic light that he was facing was still red when the impact occurred. Also, he did not think he had to make his turn on his lights at that time.

[36] Gabriel also said it had been a nice sunny day. However, he did not recall

whether there had been any obstructions that would have prevented the Honda from turning left.

[37] Furthermore, Gabriel said it had been late rush-hour traffic in which the traffic was

not extremely heavy, but pretty heavy. In addition, he observed a steady stream of vehicles, estimated at 20 to 30 vehicles, pass him east and westbound on Ellesmere Road.

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[38] In addition, Gabriel said he believes the motorcycle was doing the speed limit and

did not believe it had been speeding. However, he did notice the front of the motorcycle had lifted, which had been an indication to him that the motorcycle had accelerated. Also, he said it had been only a split-second acceleration or a very short burst of speed.

[39] In addition, Gabriel said that as the motorcycle came into the intersection its back

wheel began to slide and the motorcyclist tried to correct it. He then observed the motorcycle go down and hit the back end of the car. He said he observed the helmet come off right away and the motorcyclist spin in the air after the collision and land about five to ten feet away. He said the motorcycle then continued to slide down the road.

[40] Gabriel also said he observed two vehicles that were going eastbound on

Ellesmere Road turn left to go north on Brimley Road, before he observed the Honda in the intersection trying to turn left. He also said he had not observed any other vehicles turn left as the motorcycle entered the intersection.

(d) Testimony of Shelly King

[41] Shelly King testified she is a purchasing administrator. She does not hold a

drivers license. She recalls there had been an accident between a motorcycle and a car on June 1, 2007, at Brimley Road and Ellesmere Road. She believes the collision happened about 7:00 p.m.

[42] King said she had been a passenger in the front seat of Jay Gabriel’s vehicle,

which had been facing southbound and stopped for a red light. She said they were intending to turn east onto Ellesmere Road. She said they were stopped for about a minute at the red light. Also, she said they had stopped for the red light just before it had changed to red.

[43] Furthermore, King testified she had observed both a motorcycle travelling

westbound on Ellesmere Road and a car in the intersection turning northbound onto Brimley Road. When the traffic light for westbound traffic turned to amber, she said she could hear the motorcycle accelerate at the same time. Also, she observed and heard the man on the motorcycle put the brakes on. She also saw the motorcycle start to lose control and hit the car in the intersection that had been turning northbound onto Brimley Road.

[44] Before the collision, King said she had observed a woman drive her vehicle slowly

though the intersection while she was talking on her cellphone. She said she could see the motorcycle coming when it was about three car lengths east of the intersection and just before it had accelerated. She had been looking back and forth. She then saw the woman go through and also observed a Honda vehicle already in the intersection when the light changed to amber. When the light had

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charged to amber she said the motorcycle was about three car lengths back from the intersection. She also opined that the motorcyclist could not have come to a safe stop when the light had changed to amber, as it had been too close to the intersection. However, she could not estimate the speed of the motorcycle.

[45] King also testified she had observed two vehicles on Ellesmere Road in the

intersection turning south on Brimley Road, which she said was a van and an “SUV”. She also observed the motorcycle in the lane beside the turn lane for southbound vehicles.

[46] In addition, when King had observed the light change from green to amber for east

and westbound traffic on Ellesmere Road she heard the motorcycle start to accelerate. Then, in a matter of seconds she heard the motorcyclist put on his brakes very quickly. She said she then observed the motorcycle start to lie down and the motorcyclist go head first into the car. She said his helmet then fell off and the motorcycle continued on through the intersection. Also, she said the motorcyclist had slid three-quarters of the way through the intersection. At the point of the collision, she said the Honda vehicle was three-quarters of the way turned.

[47] Furthermore, King said the motorcycle had just entered the intersection when she

observed the Honda turning. She also said there were no obstructions to her view, since she was in the first vehicle stopped. However, except for the other vehicles going southbound on Brimley Road she opined that there would not have been anything that would have obstructed the Honda vehicle from seeing westbound traffic.

(e) Testimony of Marlo Cavanasag

[48] Marlo Cavanasag testified he had been employed as a cook but is now

unemployed. He also said he does not have a valid driver’s license. However, he did have a class “G-1” license for one year, as well as one to two years of experience driving a motor vehicle.

[49] In addition, Cavanasag said he has a clear recollection of the car accident that

occurred on June 1, 2007, at Brimley Road and Ellesmere Road that led to a fatality. He also said he had been sitting in the rear seat on the passenger side of the vehicle being driven by the defendant. He said he did not have a clear or full view of the intersection and had been only able to see the cars turning south, but nothing else. He said the two vehicles turning southbound onto Brimley Road were a car or a van and an SUV. He also said he did not pay much attention to what cars were coming and had only paid attention to the southbound vehicles. Moreover, he said his view past the intersection had been blocked by the cars turning south.

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[50] In addition, Cavanasag said they were going east on Ellesmere Road and making a northbound turn on Brimley Road. He said they were going to the Scarborough Town Center. He said he had known the defendant, Mohammed Eza Hamid, since November 2006 because they were co-workers at the time of the collision.

[51] Cavanasag also said the defendant’s brother, Huza, and another co-worker,

named Thomas were in their vehicle. He said Thomas was sitting beside him behind the driver, and the defendant’s brother was in the passenger seat beside the driver. Also, he said he worked with Thomas and the defendant at Moxie’s Classic Bar and Grill.

[52] Furthermore, Cavanasag said he had not been injured in the collision. However,

he could not recall what time of day the collision occurred, but he did say that it had been just before dinner when they were travelling eastbound on Ellesmere Road.

[53] From his point of view, Cavanasag said that while they were situated in the left

turn lane and just before they made the left turn, the traffic light had been green. He also said the light had been green when they entered the intersection and that he had seen this clearly from the rear seat. However, he did not see the light change from green to amber. He also said their vehicle had not stopped, but had slowed down to see if there was oncoming traffic. He estimated their vehicle had been moving at about 15 kilometers per hour.

[54] Cavanasag also said, as they started to turn, he looked out his side window. As

they had completed one-half to three-quarters of the turn, he said that all he could see was a motorcycle smoking. He clarified his description of the smoking motorcycle to mean the consequence of the motorcycle braking hard. He said the car then got hit. He also observed the driver of the motorcycle lying on the ground and everyone panicking. He then said a woman left her car and went to the motorcyclist. She then came to them and asked how they were. He then said there were tow truck drivers there, who had also asked how they were. Then, he said an ambulance came. And, then finally the police came.

[55] In addition, Cavanasag testified he first noticed the motorcycle when it was still

outside the intersection. [56] Cavanasag also said the collision with the motorcycle was more than just a bump,

as the car had actually moved. [57] Furthermore, Cavanasag said Thomas Hsiao had been sleeping in the car and

that for himself, he was just minding his own business. He also said music had been playing inside the car at that time, but it had not been loud and only loud enough for all of them to hear it. He also said there were no distractions present in the car that would have affected the defendant.

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[58] Cavanasag also said when he was looking out through the windshield from the rear seat, he did not see any westbound vehicles on Ellesmere Road.

(f) Testimony of Thomas Hsiao

[59] Thomas Hsiao testified he works as a cook at Moxie's. He also said he does not

have a good recollection of what happened. However, he did acknowledge that he had an opportunity to go over his statement that he had made on June 1, 2007. However, he said he did not have a chance to read over his statement before he had signed that statement on June 1, 2007. On the other hand, he did acknowledge that what he did read was a true depiction of what he saw.

[60] When shown the document containing his statement by the prosecution, Hsiao

also acknowledged that the signature on the document was his signature. Hsiao then testified that after reading his statement his memory had been refreshed.

[61] Hsiao also testified from where he had been sitting in the rear on the left side

behind the driver of the Hamid car, he did not have a clear view of the intersection. He said they had just come from his house and that they were travelling to Scarborough Town Center. He also said they were making a left hand turn onto Brimley Road from Ellesmere Road. When asked about distractions in the car, he said there had been music playing, but does not recall how loud it was. He also said all the windows in their vehicle were rolled down. In addition, he said the traffic light was green when they were approaching Brimley Road. Furthermore, he said when the Hamid vehicle was halfway through making the left turn, he observed the light was still green. Although he said he had not been focused on the colour of the light he said the light was green when the turn was made.

[62] In addition, Hsiao said the Hamid car had come to a stop. He also said he had not

been looking so much in the direction where westbound traffic was coming from. He also said he did not observe the motorcycle before the collision and only saw the motorcycle for the first time when it hit the Hamid vehicle. In addition, he said he saw the tires of the motorcycle smoking. Also, he said he could not recall the time at which the collision had occurred.

[63] Hsiao also said he had not been injured from the collision. [64] Furthermore, Hsiao said he did observe two vehicles making a left turn to

southbound Brimley Road. He also said he did not look past these two vehicles or see any motor vehicles going westbound.

[65] Hsiao said he has had a class “G-1” drivers license for 3 years. He also said he

had not been in a hurry to get anywhere that night.

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(g) Testimony of Officer Courtney Yourkin [66] Officer Yourkin testified she is a police officer with the Toronto Police Service. She

said she had been the one who had charged the defendant with the offences before the court.

[67] Yourkin testified she had been called at about 7:23 p.m. to attend a personal injury

accident involving a motorcycle at Brimley Road and Ellesmere Road in the City of Toronto. She arrived at the scene at 7:45 p.m. She then assisted in the collision reconstruction, as well as conducting the Drag Sled Test in conjunction with Officer Dallimore, which they completed at 8:08 p.m. She said the test would determine the slipperiness of the road, which is then used to calculate the speed of the motorcycle from its skid marks left on the road surface. She also said she had been informed that she would be the officer-in-charge of the investigation.

[68] In addition, Yourkin said a second police officer from 51 Division and the Collision

Investigation Squad were present. [69] Yourkin also testified that at 9:03 p.m. the driver of the Honda motor vehicle had

identified himself to her with a valid Ontario driver’s license in the name of Mohammed Eza Hamid. She also identified the driver of the Honda as the defendant before the court. In addition, she gave the particulars of the defendant’s address and date of birth to the court. She also said she had been satisfied with the driver’s identity and confirmed that it was the same person she observed in the photograph on the driver’s license. She said she then asked the driver of the Honda to sit in the front seat of her police vehicle and then took a statement from him. It was also agreed by both the prosecution and the defence at the judicial pre-trial conducted that there would be no issue on the voluntariness and admissibility of the defendant’s statement that had been given to Officer Yourkin. Therefore, a voir dire into the voluntariness or admissibility of the defendant’s statement was dispensed with. The following is a summary of the questions and answers of the defendant’s statement taken by Officer Yourkin that were read into the record:

Yourkin: Tell me what happened? Defendant: Eastbound on Ellesmere. Into left lane to go northbound. Car in

front of me making a left turn to plaza before island. I behind him. I still going. Passed by light. Reduce speed. Check for oncoming traffic. Saw two cars opposite southbound Brimley. Make sure no one coming. Make left. While I turning in intersection -- right check. Saw smoke all around him. Continue with turn. Not know what to do. Felt big shock. Car moved like jolt. Knew he hit me. Put car in park. Saw guy. Saw lot of people running. Not know what to do. Took keys out. Stood on corner. Not know what to do.

Yourkin: When approach intersection did you stop?

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Defendant: No. Little speed. Brake on. Reduce Speed. Not complete stop. Roll. Not see anyone. Accelerate.

Yourkin: What colour light? Defendant: Green. Yourkin: Speed you were going? Defendant: Honestly, don’t know. Yourkin: Time of accident? Defendant: Don’t know exact time. After 7:00 p.m. Yourkin: How many people in car? Defendant: Four people in car. Yourkin: Were you injured? Defendant: No. Yourkin: How far back when see green light? Defendant: Green whole time. From Warden and Ellesmere. Two single lanes.

In middle lane. Behind car that turn left. Eye on him and light. Light was green.

Yourkin: Anything else to add? Defendant: I ask anyone if they saw motorcycle.

[70] In addition, Officer Yourkin said the defendant had signed the document containing the statement in front of her at 9:30 p.m.

[71] Furthermore, Yourkin testified that at this point she had not made her decision to

lay charges. She said she had been waiting to get statements from all the witnesses and the preliminary report from the reconstruction squad. She said she had attended the Crown’s office at Old City Hall and it had been decided after that to charge the defendant.

[72] Yourkin also testified she is qualified to conduct the drag sled test because she

had taken both the “at scene” and the collision reconstruction course, as well as working in the reconstruction squad.

[73] In addition, Yourkin described the equipment for the “drag sled test” as comprising

a half rubber tire filled with concrete, which is then weighed and pulled across the

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road surface. She said the force required to pull that tire across the road surface is then measured. She said she had pulled the concrete-filled tire 10 times across the road surface parallel to the skid marks that had been left on the road surface by the motorcycle. She also said the concrete-filled tire was weighed both before and after the test. The readings, she said, would then be used to calculate the drag factor. She also said that as she pulled the concrete-filled tire across the road surface, Detective Constable Dallimore would take the readings and record them.

. (h) Testimony of Mohammed Huza Hamid

[74] Mohammed Huza Hamid (“Huza”) testified he is employed as a teller in a bank.

He also said he has a class “G-2” drivers license. He also said he has a somewhat clear recollection of June 1, 2007. He said the defendant is his older brother by about two years. In addition, he said he had been sitting in the passenger seat in the Honda of which he is the registered owner. He said they were with friends in the car. He said he had picked up the defendant first. He said they had been travelling on Ellesmere Road going east and then entered the left turn lane to turn left. Furthermore, he said he had been in the vehicle at the time of the collision, but had not been injured in the collision.

[75] Huza also said he believes there were two cars on the opposite side making left

turns. When his brother entered the intersection, he said the traffic light had been green. He also said his brother may have stopped the vehicle momentarily. In addition, as they were turning he said the light changed to yellow. He said his brother then made the turn and the motorcycle hit him. He also said their vehicle was past the pedestrian crosswalk and already in the intersection when the light turned amber. Furthermore, he said he had a clear view of the intersection. He also said he did not see any vehicles that were going westbound approach, except for the two vehicles that were turning southbound.

[76] When asked where their vehicle was when the two opposite southbound vehicles

had cleared the intersection, Huza said their vehicle was halfway turned in the intersection. He also said that before the collision he had observed the motorcycle when their vehicle had been in the middle of the intersection in the process of turning left. However, he said he did not see the motorcycle prior to their vehicle turning. He also said he first observed the motorcycle in the left lane when it had been 20 to 25 meters away.

[77] Huza also confirmed he only had a class “G-2” drivers license at the time, while

the defendant only had a class “G-1” drivers license. He also said he does not believe that there had been any communication between him and the defendant at that time.

[78] Furthermore, Huza testified he had given a statement to the police and had also

reviewed that statement. He also testified that when he reviewed that statement on June 1, 2007, it had been true, except for one point. He said the statement

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indicates he had stated that the motorcycle was in the middle lane; however, he testified that this part of the statement is incorrect and should have said that the motorcycle had been actually in the left lane. He also testified he had been given the opportunity to review his statement immediately before taking the witness stand, but said he had been unable to decipher the statement that had been recorded in the officer’s handwriting, at which time the court gave him an opportunity to review the typed transcription of that statement. He also testified that his statement was accurate and true from what he could remember.

[79] The prosecution then applied to have Huza’s statement that was taken by a police

officer admitted as “past recollection recorded”, as it appeared to the prosecution that Huza had little memory of what had occurred. The defence did not object to the handwritten document containing Huza’s statement recorded on June 1, 2007, by a police officer and its type transcription admitted as “past recollection recorded”. The prosecution also consented to an amendment to the statement where Huza had stated the motorcycle was in the middle lane. The court then permitted and made an amendment in red ink to the typed transcription of the statement and changed the location of the motorcycle from being in the middle lane to being in the left lane. The court then permitted the statement to be admitted for the purpose of “past recollection recorded” and the court stated that it would consider the appropriate weight to place on the contents of Huza’s recorded statement.

[80] The following is Mohammed Huza Hamid’s statement of questions and answers

supposedly recorded by P.C. Jason Orchard, a police officer with badge #99170, on June 1, 2007:

Q: 99170: P.C. ORCHARD: Tell me what you were doing in the car just before all of

this happened?

A: Mohammed Huza Hamid: Me and my brother Eza, he was the driver. We were going to pick up his friend at Warden and Ellesmere. After picking his friend up we were headed top the Scarborough Town Centre to drop them off.

Q: P.C. ORCHARD: Can you tell me what seat you were sitting in, inside the vehicle

you were riding in?

A: Mohammed Huza Hamid: The front passenger seat.

Q: P.C. ORCHARD: Do you remember any obstruction being in your field of view as were there any obstructions going on inside the car at the time?

A: Mohammed Huza Hamid: We were just listening to music. That’s it. Q: P.C. ORCHARD: Tell me what road you were travelling on and what direction you

were going just prior to the happening? A: Mohammed Huza Hamid: We were on Ellesmere travelling east, just before we got

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to Brimley and Ellesmere. We were going in the left lane. My brother stopped right there.

[Witness points: (Indicates to the officer lane #1 eastbound of Ellesmere Road just

east of the north side entrance to #1350 Ellesmere Road.)] Q: P.C. ORCHARD: Why did your brother stop at that location? A: Mohammed Huza Hamid: There was a car turning left in front of us. My

brother turned into the left-lane. He put his left turn signal on. Then he stopped right at the pedestrian walk, right at the intersection. On the westbound side of Ellesmere there were two cars turning south. They were in their left lane. My brother waited for them to turn. After they turned, we could see no cars on the westbound lanes of Ellesmere, on all the lanes.

Q: P.C. ORCHARD: Do you remember what color the traffic signal lights were when

you approached the intersection of Ellesmere at Brimley? A: Mohammed Huza Hamid: Yeah, these lights were green. I could see the ones

going east. Q: P.C. ORCHARD: What happened next? A: Mohammed Huza Hamid: My brother moved forward to make the left. He was

going very slow. Q: P.C. ORCHARD: For what reason was he going so slow? A: Mohammed Huza Hamid: He saw the motorcycle approaching pretty rapidly. At the

top of the hill, the motorcycle began slowing down. I could tell it was slowing down. As it approached it was slowing down. As my brother started to make the left, I could see smoke coming from the motorcycle. I thought that was because he was slowing down so quickly. We were probably three meters forward into the intersection. Our car was pointing north on Brimley. We saw the smoke and my brother had to make the turn. I told him to “speed up”. If he didn’t we would have got hit for sure. The motorcycle would have hit my passenger door first.

Q: P.C. ORCHARD: Once you told your brother to speed up, what happened next?

A: Mohammed Huza Hamid: When we turned, I heard a “bang” and the car kind of

tilted. I heard the bang from behind me. The car tilted to the left. My brother pulled up to the north side of Brimley by the bus stop. I got out of the car. I was really angry.

Q: P.C. ORCHARD: Why were you angry? A: Mohammed Huza Hamid: I was angry because the motorcycle was in the left lane

on Ellesmere. When we made the turn, he should have known to transfer to the middle lane. If he would have done that, there would have been no accident. That’s how close it was.

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Q: P.C. ORCHARD: What did you do next? A: Mohammed Huza Hamid: I just got out of my car. I could see the bumper was right

there in the westbound lanes of Ellesmere.

Q: P.C. ORCHARD: Did you do or see anything else? A: Mohammed Huza Hamid: I saw the bike rider on the floor, about two meters away

from the bumper! I didn’t look for the bike. I was more concerned about the guy on the floor. A group of people gathered around the guy and a lady told us he wasn’t breathing. About two or three minutes after that, the ambulance came.

Q: P.C. ORCHARD: Do you remember the conditions at the time of the collision?

A: Mohammed Huza Hamid: It was daylight. The bike’s headlights were on. Q: P.C. ORCHARD: Are you or any other persons in your car injured as a result of the

collision?

A: Mohammed Huza Hamid: No, they are fine too. Signature of “Muhammad Huza Hamid”

P.C. Jason Orchard #99170 (i) Testimony of Officer Laurence Dallimore

[81] Officer Dallimore testified he is a police officer with the reconstruction office of the

Toronto Police Service. He had been part of the team that investigated the collision at Brimley Road and Ellesmere Road on Friday, June 1, 2007. He was called at 7:35 p.m. about a motor vehicle collision between a motor vehicle and a motorcycle and arrived with Officer Del Rios at the accident location at 8:00 p.m. When he arrived he said the intersection was already closed off.

[82] Officer Dallimore said he noticed a vehicle, with the plate number of BAMC 073,

stopped facing northbound in the northbound bus lane on Brimley Road, north of Ellesmere Road. He said his attention was also drawn to a motorcycle lying on Ellesmere Road, west of Brimley Road. He also said Detective Robin Laningan of the Toronto Police Service was the lead accident reconstructionist.

[83] In addition, Dallimore said he had been assigned to do the drag coefficient test of

the road and to conduct interviews. He described the motor vehicle involved in the collision as a four-door, green-coloured 1994 Honda Accord. He described the motorcycle as a Kawasaki 900 C.C. with the license plate number of 174LZ. He said he also made note of the damage to both vehicles involved, completed a report, and handed the report to Detective Laningan.

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[84] Furthermore, Dallimore testified he had been classified as an accident reconstructionist in May 1989. He has conducted many tests using the drag sled. He described the drag sled equipment as a partial tire filled with concrete and with a spring scale attached. He said that the test required the tire to be dragged across the surface in the same direction of the vehicle or object in question to determine the slipperiness of the road surface.

[85] Also, Dallimore described the asphalt road to be tested as being the westbound

passing lane. He said the test covered the area that was parallel to the skid marks. They commenced their drag sled test four meters east of the westbound stop line on Ellesmere Road and continued it into the intersection of Brimley Road. He also said the test was commenced at 8:04 p.m. and completed at 8:08 p.m. Furthermore, he said Officer Yourkin had pulled the concrete-filled tire that weighed 41 pounds ten times across the road surface. He said the tire had been oriented in the way that a tire would have been while in contact with a road surface. In addition, he observed the numbers on the scale and also noted the date, time and location. He said he obtained an average reading of 31.2.

[86] Dallimore also said the skid marks in the westbound passing lane on Ellesmere

Road were visible and consistent with those made by a motorcycle. [87] Furthermore, Dallimore said the calculation for the coefficient of friction factor was

derived from the proportion of force over weight. In other words, he said that it took on average 31.2 pounds of energy to pull the 41 pound drag sled. He said this was consistent with a tire on that type of surface. Applying the formula of force over weight, the coefficient of friction or drag factor for that road was 0.76. Put another way, he said it is a determination of how slippery the road surface is. He also said the factor of 0.76 was consistent with a dry and clean road surface. On the other hand, he said that if the road surface would have been made of concrete, instead of asphalt, then the number for the drag factor would have been much lower.

[88] Dallimore then explained about using the approved Collins kinetic energy formula

or “slide to stop” formula for determining the speed of a vehicle that had caused a specific tire skid mark. He indicated it is the amount of speed loss that determines that skid mark. He said he provided that calculation to the lead reconstructionist, Detective Laningan. He also said the maximum braking or deceleration of a vehicle is based on the braking ability of the vehicle, which also depends on the speed of the vehicle for the braking or stopping distance. In addition, he said that for the road surface at this intersection the factor was 0.76. He also said the coefficient of friction factor is about the same if all braking systems are working. For a motorcycle, he said there are two wheels braking, and that 60 to 70% of the braking percentage is on the front wheel and about 20% of the braking is on the rear wheel.

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[89] In addition, Dallimore testified he inspected both the Honda motor vehicle and the Kawasaki motorcycle that evening. He said the 1994 Honda was parked close to the curb on Brimley Road with its four-way flashers on. He said he had observed a rear bumper plastic cowling lying on the road just south of the center island and located just north of Ellesmere Road. In addition, he said the cowling was the same colour as the Honda vehicle. He also said there were clearing marks (where dirt is removed) visible on the passenger side of the bumper cowling. When asked about photographs numbered 115 and 116 of Binder one of Exhibit #1, showing the bumper cowling, he said the scratch marks on the rear bumper cowling came from it becoming detached and sliding along the road surface.

[90] Dallimore also said there had been contact between the motorcycle and the Honda

vehicle in the area of the Honda’s rear passenger door area. [91] In addition, Dallimore noted the Honda did not have a bumper cowling attached.

He also said the Styrofoam filler between the bumper reinforcement rebar and the cowling was hanging on the passenger side touching the surface of the road. Furthermore, he said the wires for the turn light were exposed due to the missing cowling

[92] In addition, when Dallimore examined the passenger side of the Honda vehicle he

observed cleaning marks on the lower rear passenger door and lateral scuff marks on the lower part of the door. He said there was also a large indentation. He also noticed that the lower door skin had been slightly repaired. In addition, he observed that the center of the hubcap on the rear passenger side tire had an indentation and also noticed there were transfer marks on the sidewall of the tire. He also detected an old scuff mark on the right passenger side and a scuff mark on the front wheel well. He also said there were old lateral scrape marks on the rear driver’s side that were minor.

[93] Dallimore said he also made observations of the interior of the Honda vehicle and

noticed that the casing around the ignition was cracked and there had been damage to the key area. He also testified that when he turned the key in the ignition he heard loud music, which had gotten his attention. However, he also said the volume was not fully on.

[94] Also, Dallimore said the Honda vehicle had been equipped with three Goodyear

American Eagle tires and one Dunlop tire on the front passenger side. He said the tires were all the same size. He also determined that all the lights and the horn on the Honda vehicle were functioning.

[95] In addition, Dallimore said the Honda vehicle was towed to the police garage at 18

Cranleigh Road where a mechanical inspection was conducted by a police mechanic.

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[96] In his inspection of the motorcycle, Dallimore had observed it lying on its right side facing north, located ten meters west of the west island. He also said it was a 900 C.C. motorcycle. He also testified that the motorcycle was a racing motorcycle and not all cruiser. In fact, he opined that this particular Kawasaki motorcycle had been built for speed. In addition, he said there were scratch marks on the right side cowling, on the engine mount, on the exhaust pipe and on the muffler. He also said there were diagonal scrape marks on the seat cover and black scuff marks on the gas tank located on the left side. He also observed the glass in the right-side mirror had been broken. Also, he said the right turn signal had been broken at its base, but was functioning. He also said he turned on the ignition key and tested the lights, brake lights and horn, and said they were all functioning. He also said there were black curved marks near the gas tank where the motorcyclist’s knees would have been.

[97] When asked about the speed capability of the motorcycle, Dallimore indicated it

would depend on the gear ratio. He said he had done some research on this particular type of motorcycle and explained that when the motorcycle was in third gear at 1000 r.p.m. the motorcycle was capable of going 15.92 k.p.h. And at 12,000 r.p.m. he said the motorcycle could reach 191.014 k.p.h. And, at 14,000 r.p.m., he said the engine would redline. He also said the normal operating r.p.m. for the motorcycle would be between 4,000 to 7,000 r.p.m. At 4,000 r.p.m., he said the motorcycle could reach a speed of 63.68 k.p.h. In addition, at 5,000 r.p.m. it could reach 79.69 k.p.h., at 6,000 r.p.m. it could reach 95.52 k.p.h., and at 7,000 r.p.m. it could reach 111.44 k.p.h.

[98] Then, when asked which was more accurate in calculating what the speed the

motorcycle had been travelling at just before the collision, Dallimore said the gear-ratio calculation would only give an estimate of what the motorcycle could do in a particular gear, but that using the coefficient of friction and speed loss formula to calculate “slide to stop”, in his opinion, would be closer to reality. He also opined that using the measurement of the tire skid mark to calculate speed of the motorcycle would reflect a more reliable actual speed determination. However, he said the lead reconstructionist had been the one who did the calculations as to what the speed of the motorcycle had been just before the collision.

[99] Dallimore also said the motorcycle had been taken to the police garage on Hanna

Avenue for a mechanical exam. He said the motorcycle had been examined on Monday, June 4, 2007, by a police mechanic specializing in motorcycles. He said he had received information on what gear the motorcycle had been in prior to the collision. He also said he later attended 18 Cranleigh Road and received information from a police mechanic on the Honda vehicle’s mechanical status.

[100] In addition, Dallimore said he inspected the motorcycle helmet that had been

found on the southeast corner by the light standard pole. He said the helmet had been brought from there and put into a police vehicle. Also, he said there were

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marks on the right temporal and back areas of the helmet. He also observed that the face mask on the helmet had been broken.

(j) Testimony of Detective Robin Laningan

[101] Detective Robin Laningan had been found by this court to be an expert in the field

of accident and collision reconstruction, as well as being an expert on sight lines and in dealing with view obstructions. Laningan said he has been a member of the Toronto Police service for 21 years. He also said he had been designated a collision reconstructionist in November 1995. He said he is presently assigned to the Traffic Services Collision Reconstruction squad and is involved in about 10 to 20 fatality and reconstruction cases a year.

[102] Detective Laningan testified that on Friday, June 1, 2007, at 7:29 p.m., he had

been called by Officer Delos Rios. He said he then attended at the intersection of Ellesmere Road and Brimley Road for the purpose of reconstructing a serious traffic collision. He said that he had been part of a team that consisted of officers Rios, Dallimore, Nassis and Yourkin. Also, he said his team assisted him with station measurements, drag factor readings, and rendering scale diagrams. Furthermore, he said Officer Robert Norris took the photographs of the scene. He said that Officer Dallimore did the drag factor readings and collected the vehicle damage profiles, and that Officer Nassis did the station measurements, while Rios placed the prism at various locations. He also said he made observations of the accident scene and finished this at 10:55 p.m., and then returned to Traffic Services.

[103] Laningan also said he attended the coroner’s building on Saturday, June 2, 2007,

for the autopsy of the rider of the motorcycle. [104] In addition, Laningan described the road layout of the intersection. He said

Ellesmere Road is a posted 60 k.p.h. speed zone and has three lanes of traffic in each direction. He said there is also a designated left turn lane for each direction on Ellesmere Road. He also said the roadway is straight. For Brimley Road, he said it is a posted 60 k.p.h. speed zone. On the north side of Brimley Road, he said there are two lanes for northbound traffic plus a bus lane. For southbound traffic he said there are two lanes plus a left turn lane.

[105] On the southwest corner of the intersection, Laningan said there is a Petro

Canada gas station; at the southeast corner there is a strip plaza containing a Tim Horton’s, Mac’s Milk and Dollar Centre; at the northeast corner of the intersection there is a 10 story condominium; and at the northwest corner there is a two-storey office complex.

[106] Laningan also said, from his observations, the traffic lights for that intersection

were operating properly. In addition, he had requested information from the City of Toronto as to the functioning of the traffic lights at that intersection. In a letter from

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a traffic engineer (Exhibit #6) it was indicated that there was no communication with the traffic signal and that it was under system control. He also said the lanes were clearly marked. He said there were intermittent lines for east and west and solid white lines that separated northbound from southbound lanes. He also said there were raised islands at the intersection.

[107] Laningan also said the weather was overcast at the time of the investigation and

the temperature was 25 degrees Celsius. He also said barrier tape had been used to cordon off the intersection and that there were numerous police officers and police vehicles there.

[108] Furthermore, Laningan said he observed a Honda motor vehicle parked at the

northeast side of the intersection. He said the Honda’s rear bumper was lying on the northside by the centre island. He said the 2002 Kawasaki Ninja motorcycle was on its right side, 75 meters west of the area of impact. He also said there were gouges and scraping that ran from the motorcycle’s location eastward to the intersection. He said there was one long tire skid mark that began on the east side of the intersection in the westbound passing lane and one short tire skid mark at the end of the long skid mark. He said the long skid mark was left by the rear tire of the motorcycle, while the short skid mark was left by the front tire. He also observed a motorcycle helmet and shoes within the intersection.

[109] Laningan also said the motorcycle had made contact with the 1994 Honda motor

vehicle on the right passenger-side wheel well and quarter panel. He said the sheet metal was crumpled and there was an intrusion on the rear passenger door. He also said there had been human skin transfer visible on the rear passenger wheel in the area of contact. He also said the rear bumper skin and foam insert were torn off.

[110] Moreover, Laningan said the motorcycle showed collision damage to both sides.

He said the right turn signal was hanging and the mirror was bent over. He also said the scraping, scuff markings and fabric swirls were consistent with the rider’s projection and dismount during the collision.

[111] Laningan also said Officers Dallimore and Yourkin collected data from the drag

sled surface test and were provided to him. He said the factor was 0.76. He also said that number was consistent with that road surface and in relation to other road surfaces. He said that from the evidence left by the motorcycle on the roadway he was able to do a speed loss calculation. He said he was able to determine the initial speed of the motorcycle prior to the collision from the time spent during the skidding phase. He said he calculated the speed loss from the motorcycle’s rear tire skid mark to be 35 k.p.h. and the speed loss from both wheels of the motorcycle skidding to be 17 k.p.h. He said he calculated the motorcycle was sliding on its side from the point of impact to its final resting spot to be between 72 to 80 k.p.h.

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[112] Laningan then said he did a combined speed calculation and determined the initial speed of the motorcycle had been between 81 to 94 k.p.h. He said the time that elapsed from skid to impact was between 0.85 seconds to 0.94 seconds. From witness statements that the Honda had been travelling at about 10 to 15 k.p.h., he calculated the Honda had moved between 2.36 to 3.91 meters during the motorcycle’s skid.

[113] Also, Laningan said that from the evidence left on the road surface and from the

damage to the vehicles involved he could determine the vehicle dynamics in the collision. He concluded there had been very little redirect of the Honda vehicle during the collision based on the low speed of the Honda with the contact of the motorcycle. He also determined the Kawasaki motorcycle was upright during the rear wheel skid, its front wheel had locked, and it had fallen to its right side. He also determined that the motorcycle’s left hand side had hooked the rear bumper of the Honda and it had rotated clockwise. He also said the velocity of the motorcycle and its northeast trajectory had caused the skin of the Honda to be peeled. He also said the motorcycle had continued westbound and stopped 73 meters west of the impact area. From the kinematics, he said the rider of the motorcycle was on the right of the motorcycle as the motorcycle fell to its right side. Also, he said the motorcyclist fell on his right side and that both the motorcycle and the motorcyclist struck the lower rear corner of the passenger side of the Honda. He also said there had been a severe impact to the Honda and to the helmet. In addition, said there had been rapid deceleration on impact. He also calculated that the motorcycle had been travelling between 72 to 84 k.p.h. at impact with the Honda.

[114] In his analysis, Laningan said the Honda had been moving at a low speed when it

had commenced the left turn maneuver and had encroached into the path of the westbound Kawasaki motorcycle. He said the motorcycle had applied full brakes and slid into the rear of the Honda motor vehicle.

[115] Laningan also testified the defendant should have been able to see the

motorcyclist while sitting in the Honda, even though there were two vehicles in the westbound left turn lane going southbound on Brimley Road. Detective Laningan explained how he arrived at that conclusion through re-staging the likely placement of the defendant’s Honda in the intersection and by placing a vehicle in the westbound left turn lane. He also described the sight lines that the defendant would have had of the intersection and also provided measurements for determining at what point the motorcyclist would have been first visible to the driver of the Honda.

[116] To recreate the sight lines of the operator of the Honda and the motorcycle,

Laningan said he placed the Honda within the intersection He said he incorporated this calculation into the scale diagram of the post-collision diagram (Exhibit #2) that shows specific measurements and placement of vehicles and created a measurement diagram (Exhibit #5). He also added measurements to

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the post-collision diagram (Exhibit #2). He said he attempted to re-create the sights lines of the operator of the Honda while he had been making the left turn. He said he placed the Honda with a slight turn to the north and placed a Crown Victoria police car at the position where the first vehicle in the westbound left turn lane would have been while waiting to turn left to go southbound on Brimley Road. Laningan said he placed the front corner of the passenger side of the Crown Victoria vehicle where the front corner of the passenger side of the SUV or van would have been while it had been waiting to make a southbound turn on Brimley Road. The sight line in question was derived from where the motorcycle would have been seen to the most northerly point of the Crown Victoria and not based on whether the motorcycle could have been seen through any part of the Crown Victoria. In this re-creation of sight lines, he said measurements were then taken from the driver’s area of where the Honda had been positioned and across the intersection to the front passenger door of the parked Crown Victoria police car, which would be the farthest viewpoint of the obstruction to the north. This sight line was then extended east of the intersection to where the motorcycle’s westbound path would have first intersected that specific sight line. The path of the motorcycle was determined by using the beginning of the rear tire skid mark that had commenced three meters east of the westbound stop line. The intersection of the motorcycle’s projected path of travel westbound on Ellesmere Road with the driver of the Honda’s sightline that is tangential to the passenger side of the Crown Victoria would be where the motorcycle would be first visible to the driver of the Honda. He calculated that point to be 39.17 meters east of the Honda driver’s position.

[117] In addition, Laningan calculated different scenarios of what would have happened

to the motorcycle or whether there would have been a collision between the Honda and the motorcycle, if the motorcycle had been travelling at 10 k.p.h. lower than the posted speed limit or at the posted speed limit.

[118] For the hypothetical of the motorcycle travelling at only 50 k.p.h. (10 k.p.h. below

the speed limit) just before the motorcycle’s brakes were fully applied, Laningan calculated that the motorcycle would have required 12.95 meters to come to a stop. In this scenario, the motorcycle would have stopped 5.27 meters short of impact with the Honda. In other words, he concluded the motorcycle would have safely come to a stop without hitting the Honda and a collision would not have occurred.

[119] And, if the motorcycle had been travelling lawfully at the posted speed limit of 60

k.p.h. just before the motorcycle’s brakes were fully applied, Laningan calculated that the motorcycle would have required 18.64 meters to stop. In this particular scenario, he opined that a collision still would have occurred between the Honda and the motorcycle, but that the motorcycle would have collided with the Honda at 9 k.p.h., a much lower velocity than the estimated 72 to 84 k.p.h. velocity that the motorcycle had been travelling at when it had impacted with the Honda. He also

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believed that the severity of the injury would have been greatly reduced had this been the scenario.

[120] Laningan also said he determined the point of impact to be in the area of the front

tire skid mark and gouge marks on the road surface. He also said the motorcycle had slid to the area of impact.

[121] Furthermore, Laningan explained how the drag sled test was done on the road

surface to arrive at a friction factor for his calculations and on his determination of what speed the motorcyclist was travelling at when it began braking hard (81 to 94 k.p.h.) and what speed the motorcycle was travelling at when it collided with the defendant’s Honda motor vehicle (72 to 84 k.p.h.) He said his calculations were based on the skid marks, witness observations and the coefficient of friction factor for the road surface at that intersection, and from the size and weight of the motorcycle. His calculation of what speed the motorcycle had been travelling at, when it began to brake hard was determined to be in excess of the posted speed limit of 60 k.p.h., at 21 k.p.h. or more over the speed limit. He also had relied on a published Society of Automotive Engineers paper by Medwell, McCarthy and Shanahan to make his calculations.

[122] Finally, Laningan said that speed loss is exponential in that the faster a vehicle is

travelling the farther the distance would be required to stop. He also said that the braking of the motorcycle would have actually started east of the commencement of the rear tire skid mark. He explained skid marks are evidence of braking. He also said the braking of the Kawasaki motorcycle is similar to a car for the drag factor, but that a motorcycle has greater acceleration than a car. In comparison to the Honda, he said that the Kawasaki motorcycle could accelerate at twice the rate of the Honda.

(k) Testimony of Mohammed Eza Hamid, the defendant

[123] The defendant, Mohammed Eza Hamid, said that he had been travelling from

Warden Avenue and Ellesmere Road to the Scarborough Town Centre. He said there were three other people in the car. They were his younger brother Huza, Thomas Hsiao and Marlo Cavanasag. However, he said their trip was cut short when they became involved in the accident at Brimley Road and Ellesmere Road.

[124] The defendant explained he had been driving his brother’s car because he had

asked his brother if he could drive, since his “G-2” license test was coming up. He knew his brother Huza had a class “G-2” driver’s license and said he mistakenly thought he only needed to have a “G-2” license holder in the front seat beside him before he could drive. He also admitted he now knows that the person beside him in the front seat should have been a class “G” license holder with four years driving experience.

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[125] Also, the defendant said he had been licensed in Sri Lanka and had been living there for two years prior to returning to Canada two years ago. He said while in Sri Lanka he drove a standard transmission vehicle and an off-road motorcycle.

[126] As for his driving experience in Canada, the defendant said he had taken training

under an approved driving instructor in Canada but did not take a classroom type course. He said he had taken more than five driving lessons, but cannot remember the exact number of lessons. He said it cost him $30 per lesson. However, when questioned about the name of the driving school or the name of the driving instructor the defendant testified that he got a telephone number from his friends and took lessons from a private instructor, who he had telephoned and who would come to his house. He also said he had about a year of experience driving in Canada and was preparing to take his driving test for a class “G-2” license at the time of the accident.

[127] The defendant also testified that when he approached the intersection of Brimley

Road and Ellesmere Road, he drove into the left turn lane and observed a car in front of him turn left into the plaza on the west side of Brimley Road. He also said there were two other cars turning left onto northbound Brimley Road ahead of the one vehicle that had turned into the plaza, but both had gone before he had entered the intersection. Also, the defendant said he slowed his vehicle but did not come to a complete stop as he rolled into the intersection. He said he entered the intersection on a green light. He also observed two vehicles opposite of him intending to turn southbound on Brimley Road. He believes one of the two vehicles turning left to go southbound on Brimley Road was a van or SUV, but does not recall when, or if, those two vehicles had completed their southbound turns. He also said one of them was a van or something big or similar to a van. He reiterated that he was inching forward because he could not see. He also testified that he did not see the motorcycle until he had completely made the turn. He said that when he first observed the motorcycle it was going very fast.

[128] Furthermore, the defendant said before he entered the intersection he looked for

oncoming traffic and checked the lights of the intersection. He also said he had turned on his left turn signal. After he entered the intersection, he said was going very slowly and inching forward to get a better view, since his view was blocked. However, he also said under cross-examination that he had been stopped in the intersection waiting for oncoming traffic to clear, but could not say whether he had actually stopped. He also said that the two vehicles opposite of him had blocked his view and that he had to inch forward to get a better view because he could not see. He said he tried to look far around as possible. In addition, he said his attention had been on the road to see whether there was any oncoming traffic. He further said that from where he was sitting he could only see the right turn lane or curb lane and the lane next to it, but he could not see that lane completely and that is why he had to inch forward. Moreover, he testified that he could only see maybe four or five car lengths east of the intersection.

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[129] When asked whether it had been reasonable to make the left turn when he could only see four or five car lengths east of the intersection so as to properly assess whether there is any traffic approaching in the westbound lanes, the defendant responded that when the light had changed to yellow he expected that oncoming traffic would see the yellow light and would slow down. The defendant also said he proceeded with the left turn because he thought it was clear because he did not see any oncoming traffic and that the other lanes were clear.

[130] The defendant said he then increased his speed, triple checked, and then looked

through his right passenger window when he saw a motorcycle with a big cloud of smoke surrounding it come towards him. He said he was shocked since he had not seen the motorcyclist. He then tried to finish his turn and go forward. He also said he did not know what to do at that point. He said he then felt a large jolt in the rear of the vehicle he was driving and it lifted a little off the ground. He said he then realized that the motorcycle had hit them. He then pulled over and got out to see what had happened. He said he saw a crowd of people surround the motorcyclist. He said he was in shock. He said he originally walked toward the intersection to check on the motorcyclist but that someone had called him back. He then turned on the emergency lights and removed the keys from the Honda vehicle. He said he then sat on the curb with his brother and friends.

[131] Also, the defendant reiterated that the two southbound turning vehicles had

obstructed his view. He said the two vehicles were either a van or SUV and the top of the vehicle was high. When asked whether it would have been more prudent to stop and wait, rather than proceeding with his left turn when his view had been obstructed by those two southbound turning vehicles, the defendant answered that he could see around them but did not see any oncoming traffic. He also said that he is permitted to proceed if he does not see any vehicles coming towards him. He also added that if the motorcycle would have been a car he would have then seen its right-side headlight because a car is wider. He said, that in comparison to a car, motorcycles are tiny.

[132] The defendant also said he first saw the motorcycle when he had almost

completed his left turn. He said he looked out the vehicle’s passenger side and saw the motorcycle coming at him. He said he only glimpsed the motorcycle for a second. He also said he did not recall that his brother had told him to speed up.

[133] Furthermore, the defendant said he had experience driving a dirt bike on the

street. In addition, he said no one in the vehicle at the time was giving him driving instructions. He also said he now holds a class “G-2” license.

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3. RELEVANT STATUTORY PROVISIONS

(a) The Offence of “Turn Not In Safety”. [134] The offence of “turn not in safety” set out in s. 142(1) of the Highway Traffic Act,

R.S.O. 1990, c. H.8, states that [emphasis is mine below]:

Signalling turns and stops Signal for left or right turn 142(1) 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.

(b) The Offence of “Driving motor vehicle with no current validation on license plate”.

[135] The offence of “driving motor vehicle with no current validation on license plate”

contrary to s. 7(1)(c)(i) of the H.T.A. states that: Permit requirements 7(1) No person shall drive a motor vehicle on a highway unless,

…

(c) evidence of the current validation of the permit is affixed, in the prescribed manner, to,

(i) one of the number plates mentioned in subclause (b) (i)

displayed on the vehicle, or …

(c) The Offences of “Driving a motor vehicle while being a “class G-1 license holder unaccompanied by a qualified driver” and “Driving a motor vehicle while being a class G-1 license holder that carried a front seat passenger”.

[136] The offences of “driving a motor vehicle while being a “class G-1 license holder unaccompanied by a qualified driver” and of “driving a motor vehicle while being a class G-1 license holder that carried a front seat passenger” are both contained in s. 5(1) of Ont. Reg. 340/94:

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Novice Licence Conditions 5(1) The holder of a Class G1 driver’s licence may drive a Class G1 motor

vehicle on a highway if a holder of a Class A, B, C, D, E, F or G driver’s licence or its equivalent authorizing the holder to drive the motor vehicle, who qualifies as an accompanying driver, occupies the seat beside the driver for the purpose of giving him or her instruction in driving the motor vehicle and the following additional conditions are met:

… 3. No person other than the novice driver and the accompanying driver

shall occupy a front seat in the motor vehicle. …

(2) A person is qualified to act as an accompanying driver if he or she,

(a) is a fully licensed driver in a Class G motor vehicle; (b) has been licensed in Ontario or another jurisdiction for at least four

years except if the person is licensed as a driving instructor in Ontario; and

(c) meets the applicable requirements of the Act and the regulations,

including any requirement to wear corrective lenses but not including any requirement for any special or modified controls applicable to the accompanying driver’s licence.

4. ISSUES [137] The following are issues that have to be resolved in this matter:

(a) Is the offence of “turn not in safety” set out in s. 142(1) of the Highway Traffic Act a strict liability offence?

(b) If the offence is one of strict liability, has the defendant taken all reasonable

steps in the circumstances to first see that he could make the left turn in safety before making the turn, considering that his view of oncoming traffic had been obstructed?

(c) Furthermore, if the offence is one of strict liability did the defendant in the

circumstances have an honest and reasonably held, but mistaken belief, that vehicles approaching the intersection would stop for the amber light or that there would be no vehicles coming through the intersection when the traffic light had changed from a green indication to an amber indication or that it had been safe to proceed with the left turn?

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(c) Did the defendant establish the right of way to proceed with his left turn in relation to the approaching motorcycle, when the traffic light changed to amber?

(e) How much weight should be given to a document (which consists of questions

and answers taken and made by a police officer from a witness) admitted as “past recollection recorded” as an exception to the hearsay rule, in which the witness has only some memory of the event in question, and in which the police officer who took and recorded the statement or answers does not testify as to the accuracy of the recorded statement or answers, even though the witness signed the document on the date the document was made and who had verified under oath that at the time his statement or answers were given to the officer that they had been true?

5. ANALYSIS [138] At the outset, it is important to emphasize that this case is not about apportioning

percentages or degrees of fault between the defendant and the motorcyclist, or in deciding whether contributory negligence falls on the motorcyclist, even though the evidence indicates the motorcyclist may have contributed to his own misfortune. Although those issues are pertinent to a civil proceeding involving questions of negligence, liability and damages, they are not germane to a quasi-criminal or regulatory proceeding, as in the case at bar, where the onus is on the prosecution to prove the defendant committed a particular offence beyond a reasonable doubt.

[139] Nevertheless, the presence of negligence is relevant when the offence at issue is

categorized as a “strict liability” type of regulatory offence, since an accused in order to be acquitted of the offence has the legal burden to prove the lack of fault or negligence in committing the actus reus of the offence, once the prosecution has met its onus of proving the prohibited act in question. Therefore, in his argument for an acquittal, the defendant contends he did take all reasonable steps to ascertain whether there had been any oncoming traffic before he proceeded with the left turn, and when he did make the left turn it had been based on an honest and reasonable belief that there were no oncoming vehicles and that it had been safe for him to proceed. Furthermore, he submits that it had not been unreasonable for him to believe that vehicles approaching an amber light would stop as required under the Highway Traffic Act, and that it also had not been foreseeable that there would have been a racing-class motorcycle coming through the intersection while exceeding the speed limit at a high rate of speed, instead of stopping for that amber light.

[140] Alternatively, the defendant contends that he had established the right of way to

proceed once the traffic light had changed to amber, so that the motorcyclist should have stopped and not have entered the intersection.

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[141] In rebuttal, the prosecution contends it has proven beyond a reasonable doubt the defendant had made the left turn when he did not first see that it could be made in safety, since the defendant’s view of oncoming traffic had been obstructed by two vehicles in the westbound left turn lane and he could only see clearly a few car lengths east of the intersection. In particular, the prosecution questions how could the defendant see whether it was safe to turn left, when he had been unable to determine if any vehicles were approaching the intersection, considering his view had been obstructed by those two vehicles turning southbound and where he was only able to see a short distance east of the intersection. Moreover, the prosecution contends the defendant was not being diligent or had taken all reasonable care for the circumstances, since he proceeded with the turn when his view was obstructed and he could only clearly see a short distance east of the intersection; there had been loud music playing in the vehicle that acted as a distraction at the time; and as a new driver, he had not been accompanied by a qualified driver as required by law to give him proper instruction on his driving maneuvers; and, he had failed to see the motorcycle where it would have been visible to him when it was 39.17 meters east of him.

[142] Furthermore, in response to the defendant’s contention he had established the

right of way to proceed once the traffic light changed to amber, the prosecution argues the motorcyclist could not have safely stopped for the amber light since the motorcycle had been only three car lengths from the intersection when the light changed to amber, and thereby legally entitled to proceed cautiously through the intersection. In short, the prosecution contends the motorcycle still had the right of way, despite the amber light.

[143] Accordingly, to determine whether the defendant should be acquitted for making

that unsafe left turn based on him being able to establish he had done all that was reasonable in the circumstances to avoid committing the offence, or that he had reasonably believed in a mistaken set of facts, if true, would make his act innocent, it has to be first resolved whether the offence set out in s. 142(1) of the H.T.A. is a strict liability offence.

(A) CATEGORIZATION OF THE OFFENCE [144] Presently, there appears to be no Ontario case that speaks specifically on what

type of offence is set out in s. 142(1) of the H.T.A. under the “Sault Ste. Marie” classification of offences. Both the prosecution and defence propose that the “turn not in safety” offence contained in s. 142(1) of the H.T.A. should be treated as a strict liability offence. The prosecution submit their position is supported by R. v. L. (M.V.), [1988] A.J. No. 640 (QL), an Alberta Provincial Court decision, where that court concluded that a similarly worded offence to Ontario’s s. 142(1), which is contained in their Alberta Highway Traffic Act to be a strict liability offence. That provision is found in s. 95(2) of the Alberta Highway Traffic Act, R.S.A. 1980, c. H-7, and states that:

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Right of way at intersections … 95(2) A driver intending to turn left across the path of any vehicle approaching from

the opposite direction shall not make or attempt to make the left turn unless the turn can be completed in safety.

[145] In addition, an Ontario court, shortly before the present trial commenced, had ruled

on February 12, 2008, that s. 141(5) of the H.T.A., which is a related offence to s. 142(1) and is also a regulation that governs left turns in intersections, is a strict liability offence. This ruling is found in R. v. Neal, [2008] O.J. No. 720 (QL), 2008 ONCJ 42 (O.C.J.), at para. 10, where Stone J. concluded that the offence of “left turn in an intersection without affording a reasonable opportunity to other drivers to avoid a collision” set out in s. 141(5) of the H.T.A. is a strict liability offence:

This offence, by its terms, is one of the strict liability, in terms of the classifications set out in R. v. Sault Ste Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.), It is a regulatory offence. The words of the section disclose that not every collision involving a person turning left across the path of another, requires that the person is ipso facto guilty of this offence. The person may escape conviction by showing he afforded a reasonable opportunity to the other driver to avoid a collision. In other words, the person can establish due diligence. On the other hand, the prosecutor need not prove mens rea, that is, that the person intended to not afford a reasonable opportunity to avoid the collision, or was reckless.

[146] Section 141(5) of the Highway Traffic Act, R.S.O. 1990, c. H.8, states that:

Left turn, across path of approaching vehicle

141(5) No driver or operator of a vehicle in an intersection shall turn left across the path of a vehicle approaching from the opposite direction unless he or she has afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision.

[147] Thus, after a review of the wording in s. 141(5) and s. 142(1) of the H.T.A., it

appears that both sections provide virtually the same rule or impose the same duty on drivers intending to make left turns in an intersection across the path of approaching vehicles, to do so in safety or to afford the approaching vehicle a reasonable opportunity to avoid a collision. Although the prerequisite condition imposed on drivers intending to turn left set out in those two sections are not identical, their duty to avoid a collision with the approaching vehicle before turning left in the intersection is nevertheless similar.

[148] Although R. v. L. (M.V.) and R. v. Neal are indeed persuasive on this court for

finding s. 142(1) to be a strict liability offence, the specific legislation reviewed in those two cases are not identical to s. 142(1), and as such, an analysis of s. 142(1) should be undertaken to determine its proper classification. In this regard, the Supreme Court of Canada in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, 40

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C.C.C. (2d) 353, at pp. 373-374, established a classification scheme in which offences in Canada are categorized as absolute liability, strict liability or mens rea type offences [emphasis is mine below]:

1. Offences in which mens rea, consisting of some positive state of mind such

as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case.

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

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.

[149] Hence, regulatory or public welfare offences enacted by the Ontario Legislature

are prime facie strict liability offences unless such words as '"wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence', then they would fall into the mens rea category of offences. Similarly, an offence would fall into the absolute liability category when the Ontario Legislature has made it clear that guilt would follow by mere proof of the prohibited act and where an accused cannot rely on the defence that they were free of fault to escape liability.

[150] Therefore, in determining whether the “turn not in safety offence” set out in s.

142(1) is an absolute liability, strict liability or mens rea offence, one begins with the presumption that provincial offences or regulatory offences enacted by the Ontario Legislature are strict liability offences, in which the prosecution does not have to prove the defendant had the requisite mens rea, and only needs to prove

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the defendant committed the actus reus of the offence or the prohibited act beyond a reasonable doubt. However, this presumption that offences set out in provincial regulatory legislation are strict liability is rebutted when there are specific identifying words in the legislation such as “knowingly”, “intently”, “purposely”, “recklessly”, “fraudulently”, “with intent”, or “willfully” that would require the prosecution to prove a positive state of mind or mens rea as an element of the offence: Strasser v. Roberge, [1979] 2 S.C.R. 953.

[151] Consequently, since s. 142(1) does not contain those identifiable or specific words

that indicate proof of a guilty or positive state of mind is required for the offence of “turn not in safety”, it is not an offence requiring the prosecution to prove mens rea. At the same time, s. 142(1) expressly provides an accused person the opportunity to show that they are free of fault by showing they had first seen whether the left turn could be made in safety before making the turn. Therefore, since guilt does not automatically follow proof of the prohibited act set out in s. 142(1) because an accused is provided with the chance to show the turn had been made in safety or that they were free of fault in making that turn, the offence in question would hence not fall into the absolute liability category.

[152] Accordingly, the prosecution and defence are correct that the offence set out in s.

142(1) is a strict liability offence. (B) DEFENCE OF DUE DILIGENCE [153] To determine if the defendant is guilty of committing this strict liability offence, a

two-part inquiry is involved. In the first part, the prosecution has the burden to prove beyond a reasonable doubt that the defendant has committed the actus reus of the offence or prohibited act set out in s. 142(1). Once, the prosecution has met its burden of proving the prohibited act, then in order to escape liability the defendant has the burden to prove on a balance of probabilities that it had taken all reasonable steps for the circumstances to avoid the particular event or to prove that he had reasonably believed in a mistaken set of facts, if true, would render his act or omission innocent: R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.). In short, the defendant has to prove he had not been negligent in making the left turn. Moreover, the defendant will be found guilty of committing this offence if he is unable to prove on a balance of probabilities either branch of the due diligence defence established in R. v. Sault Ste. Marie, of taking all reasonable care for the circumstances to make the left turn in safety or that he had proceeded with the left turn because of a mistake of fact.

[154] For the first stage of this inquiry, there is no dispute that the prosecution has

proven beyond a reasonable doubt the actus reus of the offence, that the defendant had made a left turn not in safety across the path of the motorcycle, given that a collision had occurred between them. And, being mindful that there may be specific situations in which an accused person may be able to prove they

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are not liable based on the defence of due diligence, the second stage of this inquiry concerns whether the defendant has met his burden of proving this available defence on a balance of probabilities.

[155] At trial, the defendant testified and gave evidence related to the defence of due

diligence. Consequently, when an accused person testifies at their own trial then the Supreme Court’s guidance outlined in R. v. W. (D.), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91 (QL) becomes applicable. In this case, the defendant’s credibility is at issue, as his testimony is in conflict with the testimony of other witnesses on whether the defendant had been negligent or free of fault in first seeing that the left turn could be made in safety. However, the guidance set out in R. v. W. (D.) would only apply to the defendant’s testimony as it relates to the defence of due diligence, since it is not disputed that the prosecution has proven beyond a reasonable doubt that the defendant committed the prohibited act set out in s. 142(1).

[156] To reiterate, the Supreme Court of Canada outlined two branches for the due

diligence defence in R. v. Sault Ste. Marie, at pp. 373-374, in which an accused person could avoid liability by proving that they took all reasonable steps to avoid committing the prohibited act or that they reasonably believed in a mistaken set of facts, if true, would render their act innocent:

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.

(1) First Branch: Innocent Act Based On Reasonable Belief In A Mistaken Set Of Facts

[157] For the first branch of the due diligence defence, the defendant said he reasonably

believed that vehicles approaching the intersection would stop for the amber light and not enter the intersection as required by law; or that there would be no vehicles coming through the intersection when the traffic light had changed from a green indication to an amber indication; or that it had been safe to proceed with the left turn.

(a) Defendant’s assumption motorists would stop for amber light and not enter intersection

[158] The defendant said he assumed that when the light changed from green to amber

motorists would stop as required by law and not enter the intersection. He also

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said he proceeded with his left turn since he believed there would be no westbound vehicles approaching at that time and that it would be safe to do so. However, the prosecution contends the motorcycle could not safely stop as it had been too close to the intersection when the light had changed to amber, as witnessed and confirmed by Shelly King, and therefore, was permitted to continue through the intersection.

[159] The provision which governs vehicles facing an amber light at an intersection is

found in s. 144(15) of the H.T.A. That section requires drivers to stop for an amber light only if they can do it safely, otherwise they are permitted to proceed into the intersection with caution:

Amber light 144(15) Every driver approaching a traffic control signal showing a circular

amber indication and facing the indication shall stop his or her vehicle if he or she can do so safely, otherwise he or she may proceed with caution.

[160] Therefore, the defendant’s assumption is erroneous that motorists would stop for

the amber traffic light and not enter the intersection as required by law, seeing as motorists only have to stop for an amber light if they can do so safely, otherwise they can proceed through the intersection with caution. This rule set out in s. 144(15) is intended to address the situation where vehicles are too close to the intersection to stop safely, when the light changes to amber, by permitting those particular vehicles to proceed cautiously through the intersection, thereby reducing abrupt stops that could endanger themselves or vehicles immediately following them. Although there exists this requirement to stop for an amber light under s. 144(15), it does not necessarily mean that all vehicles would have to stop when the light changes to amber. For those reasons, it would be illogical to presume that all motorists would stop for an amber light when motorists are permitted by law to proceed through the intersection on an amber light in specific situations or that there would be no vehicles entering the intersection immediately after the light turns to amber. As such, a motorist waiting to turn left must give some allowance to the possibility that a vehicle could be entering the intersection when those vehicles are too close to the intersection to be able make a safe stop.

[161] Accordingly, the defendant’s belief that when the light changed to amber, there

would be no vehicles entering the intersection or that motorists would stop for that amber light and not enter the intersection, is not a reasonable mistake of fact that would render the defendant’s unsafe turn innocent, given that the law permits some vehicles, when necessary, to enter an intersection on an amber light. Of course, the situation would be much different if the light were showing a red indication when the motorcyclist had entered the intersection.

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(b) Defendant’s belief that it was safe to proceed and make the left turn [162] The defendant also said he proceeded with the left turn because he had believed it

was safe to do so. However, I do not find this mistaken belief would make his left turn innocent, given that he could not be certain there would be no westbound vehicles approaching, as he could only see a few car lengths east of the intersection and his view was obstructed, for the most part, by vehicles in the westbound left turn lane. Furthermore, since the defendant could not have known for certain whether there were westbound vehicles approaching the intersection because of the obstructed view, then it is not logical for him to hold an honest or reasonable belief that it had been safe to make the left turn.

(2) Second Branch: All Reasonable Steps Taken In The Circumstances To Avoid The Particular Event

[163] The defendant further contends that he had proceeded cautiously and had taken

all reasonable steps to look for oncoming traffic and to ensure that it had been safe to make the left turn. He also contends that he could not have foreseen a motorcycle approaching him, while running an amber light at a high velocity and in exceeding the speed limit at over 21 k.p.h.

(a) Proceeding with left turn when view obstructed

[164] Prudence also requires that a left turn maneuver not be commenced if the driver’s

view of oncoming traffic is obstructed by other vehicles. Indeed, the defendant testified that his view of westbound traffic on Ellesmere Road was obstructed for some of the westbound lanes and that he could only see a few car lengths east of the intersection for some lanes. Therefore, turning left across the path of westbound traffic, when one’s view is obstructed and where one could not see clearly all the westbound lanes for oncoming traffic, would not be taking all reasonable care. Moreover, it would be negligent to proceed in such a situation.

[165] Thus, proceeding with the left turn, when the defendant’s view of westbound or

approaching traffic had been obstructed or limited, shows he did not take all reasonable steps to see first that the left turn could be made in safety.

(b) Failure to see motorcycle when visible at 39.17 meters

[166] Although the defendant initially testified that he could not see because of the

obstruction caused by vehicles in the westbound left turn lane, he later said he could see around the obstruction, but saw no vehicles approaching. However, if he had been able to see around the obstruction then he should have seen the motorcycle when it was 39.17 meters east of his position, at a point where he had not commenced the left turn fully and when he had still been inching slowly forward in the intersection. Because he did not see the motorcycle when it would

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have been in his sight line, as determined by Detective Laningan, who is a collision reconstructionist and an expert on sight lines, then the defendant had failed to keep a proper lookout.

[167] The prosecution also contends that the defendant was aware of the motorcyclist’s

presence much earlier then he has testified to, based on his brother Huza’s statement given to a police officer on the night of the accident, in which Huza states that he told the defendant to speed up because of the motorcyclist approaching and that the vehicles in the westbound turn lane had already cleared the intersection.

[168] Logically, if Huza did see the motorcycle approach much earlier than has been

indicated by the defendant and informs the defendant to speed up, then Huza must have concluded that the defendant could have also make the left turn before the motorcycle entered the intersection. This would also logically follow that Huza did see the motorcycle far enough back on Ellesmere Road so that the defendant would be able to complete the left turn. On the other hand, if Huza only first observed the motorcycle at a much closer distance so that a collision could occur, then Huza’s likely reaction would be to scream or yell for the defendant to stop or slam on his brakes. Since the evidence does not support the second scenario, then the first scenario would be more likely and suggests that the motorcycle was visible to the defendant at a distance farther back than is being portrayed by the defendant, and that the collision was caused by the defendant having misjudged the speed of the approaching motorcycle (as Keith Gravesande also suggested).

[169] However, this conclusion that the defendant had seen the motorcycle much earlier

than depicted and that he had misjudged the speed of the motorcycle would only be available, if Huza’s recorded statement of telling the defendant to speed up and the two vehicles in the westbound turn lane had cleared the intersection is reliable and accurately recorded by the police officer who had taken Huza’s statement.

(i) Past Recollection Recorded

[170] The prosecution wishes to rely on the veracity of a statement supposedly made by

the defendant‘s brother “Huza”, who had been sitting in the front passenger seat, to show that the defendant had known about the motorcyclist approaching the intersection much earlier than has been described by the defendant, because Huza in this recorded statement said he had observed the motorcycle and had told the defendant to speed up in order to make the left turn. The prosecution, therefore, applied to have Huza’s out of court statement, made to and recorded in writing by a police officer, admitted into evidence as “past recollection recorded”, as Huza had only some recollection of what had occurred in regards to the collision. After argument by the prosecution, I allowed this document to be marked as an exhibit and entered as past recollection recorded, as an exception to the hearsay rule against admissibility (Exhibit #3), but with the proviso that the

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contents of the statement would still have to be considered in context and given its appropriate weight.

[171] In considering the appropriate weight to place on Huza’s recorded statement, I will

begin with a review of the doctrine of “past recollection recorded”. In John Sopinka, Sidney N. Lederman and Alan W. Bryant’s textbook entitled, “The Law of Evidence in Canada, 2d ed. (Toronto, Ontario: Butterworths, 1999)”, at para. 16.78, the authors indicate that a witness’s observations of an event as past recollection recorded may be made or recorded by another party:

In cases of past recollection recorded, where a witness has no present memory, she or he may testify at trial from: (1) a writing made by the witness at or near the time of the occurrence of the event

or matter recorded; or, (2) a writing made by a person other than a witness, recording events or matters

observed or heard by the witness, which the witness verified as an accurate account when the facts were fresh in the memory of the witness.

[172] Furthermore, in R. v. Salutin, [1979] O.J. No. 806 (QL), 11 C.R. (3d) 284, at para.

2, the Court of Appeal for Ontario confirms that the recording of evidence as past recollection recorded is admissible as evidence if the proper foundation is laid:

A point of law which brings this case here is that there was evidence of past recollection recorded which the appellant now contends was inadmissible. That is to say, there was evidence of a record made at an earlier time, the truth of which was not something that the witness could now attest to by reason of his memory. In our view, there is authority that such evidence is, if the proper foundation is laid, admissible. Reference can be made to Wigmore on Evidence, (Chad. Rev.) Vol. 3, para. 734-755 and Fleming v. Toronto Ry. Co. (1911), 25 O.L.R. 317 (Ont. C.A.); Rex v. Bryant & Dickson (1946), 31 Cr. App. Rep. 146 (C.C.A.); Regina v. Alward (1976), 32 C.C.C. (2d) 416 at p. 428 (N.B.C.A.); Regina v. Rouse & McInroy (1977), 39 C.R.N.S. 135 (B.C.C.A.); Regina v. Naidanovici (1962), N.Z.L.R. 334 (N.Z.C.A.); but see Young v. Denton & Tate, [1927] 1 D.L.R. 426 (Sask. C.A.). In such cases, the record is the evidence, but that is not this case. Here no objection was taken to the evidence at the time that it was tendered. Here, the learned trial judge has considered all of the evidence, and has not dealt with the case on that basis. He was alert to the distinction between evidence of that sort and evidence of present recollection revived, and treated the case on that basis. We cannot disagree with him on this record.

[173] Also, in John Sopinka, Sidney N. Lederman and Alan W. Bryant’s textbook, The Law of Evidence in Canada, 2d ed., at para. 16.89, the authors state that the document containing the past recollection recorded may be entered as evidence and marked as an exhibit if the proper foundation is made:

The Ontario Court of Appeal [in R. v. Salutin, [1979] O.J. No. 806 (QL), 11 C.R. (3d) 284] has distinguished between past recollection recorded and present

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memory revived in respect of prior statements. For the former, the document is the evidence and if the proper foundation is made, it may be marked as an exhibit.

[174] Thus, the past recollection recorded exception to the hearsay rule can be used where the witness is either devoid of a present recollection or possessed of an imperfect present recollection. In the tome by David M. Paciocco and Lee Stuesser, entitled, “The Law of Evidence, 4th ed. (Toronto, Canada: Irwin Law Inc., 2005)”, at pp. 378-379, the authors set out the four prerequisites for the admissibility of evidence as past recollection recorded:

Relying on Wigmore on Evidence, the Supreme Court of Canada [in R. v. Fliss, [2002] S.C.J. No. 15 (QL), [2002] 1 S.C.R. 535 (S.C.C.) confirming R. v. Meddoui, [1990] A.J. No. 1070 (QL), 61 C.C.C. (3d) 345 (Alta. C.A.)] has described the other prerequisites that apply where the doctrine of “past recollection recorded” is relied on:

1. The past recollection, must have been recorded in some reliable way. 2. At the time [he made or reviewed the record, his memory] must have

been sufficiently fresh and vivid to be probably accurate. 3. The witness must be able now to assert that the record accurately

represented his knowledge and recollection at the time [he reviewed it]. The usual phrase requires the witness to affirm that he "knew it to be true at the time".

4. The original record itself must be used, if it is procurable.

[175] Also, in David M. Paciocco and Lee Stuesser’s “The Law of Evidence, 4th ed.”, at

p. 382, the authors emphasize that in the situation where another party other than the witness made the recording of the past recollection recorded, the accuracy of the recording must be verified [emphasis is mine below]:

given that the document was a transcript of a conversation; there is no way the witness could actually verify that every word recorded was accurate based on his memory, even the day after the conversation. All he could reasonably be expected to certify was than when he reviewed the transcript while his memory was fresh, the conversation transcribed was, in essence, as he had remembered it. Where a witness has not personally recorded information, and where that information cannot be verified with precision, it should not be read into evidence, nor should the witness while testifying refer to the information that is not recalled or that was not authenticated with precision when his memory was fresh.

Although the conventional view is to the contrary, some courts, recognizing that the document is actually the source of the evidence, permit the document itself to be admitted as an exhibit. Where the document is the font or source of the information, permitting it to be filed as an exhibit is sensible unless the document contains otherwise inadmissible information, information that the witness cannot authenticate, or there is a legitimate concern that it will be given undue weight if provided to a jury in the form of an exhibit.

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[176] Furthermore, in the situation where the witness does not make the recording of the

past recollection recorded, the Quebec Court of Appeal in R. v. Berniquez (1996), 112 C.C.C. (3d) 380, required the third party who transcribed the document to be called as a witness to verify its accuracy.

[177] In the present case, Huza testified that when he made the statement to a police

officer it had been true. Also, after reviewing the typed transcription of the statement supposedly recorded by Officer Jason Orchard, Huza further testified that the typed transcription appeared to be correct from what he could recall, except for the error regarding what lane the motorcycle had been travelling in. When I admitted the document containing Huza’s statement (Exhibit #3) as “past recollection recorded” as an exception to the hearsay rule, I indicated that I would place the appropriate weight on the statement’s contents. The reason I qualified the value of the document’s content to weight is that the police officer, who took the statement from “Huza”, did not appear as a witness to testify under oath about the accuracy or completeness of recording Huza’s statement. Although Huza had testified that when he gave the statement he had been telling the truth, there is no cogent evidence to indicate that it had been recorded accurately or completely. And, since the prosecution contends that the defendant has no present recall of what completely happened and the prosecution wishes to have the statement relied upon for its truth, I am reluctant to put a lot of weight or reliability on it because the taker of the statement has not testified under oath to its accurate or complete recording. Moreover, after reviewing his written statement on the day of the trial Huza noticed there had been an inaccuracy in the recorded statement, on which the prosecution subsequently consented to an amendment to the witness’s recorded statement to rectify that error, before it was admitted as evidence. This noted inaccuracy also reflects the potential that Officer Orchard inaccurately or incompletely recorded Huza’s statement. Accordingly, given that Huza has already identified one inaccuracy in the recorded statement and there is absent any evidence that Huza’s statement had been recorded accurately or completely, I cannot place much reliance or weight on the contents of the recorded statement for its truth.

[178] In addition, I cannot surmise that the defendant had been aware of the motorcycle

at a much earlier stage than had been indicated by the defendant

(c) Driving while not accompanied by qualified driver [179] The defendant has also failed to comply with s. 5(1) of Ont. Reg. 340/94 that

required the defendant, as a new driver with a class “G-1” drivers license, to be accompanied by a qualified driver, who is required to be in the front seat beside him when he is driving a motor vehicle, in order to give him proper instruction on driving maneuvers. The graduated system of drivers licenses and the imposition of conditions on novice drivers is intended to protect the public from harm that could be occasioned from inexperienced drivers on Ontario highways. Therefore,

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having a qualified driver accompanying the defendant in the front seat, rather than Huza who was not a qualified or experienced driver in Ontario, to give proper instructions about when to make a left turn where the view of westbound traffic was obstructed, may have prevented the collision. Unfortunately, it will never be known whether that factor of having a qualified driver beside the defendant would have prevented the tragic outcome.

[180] Consequently, by not driving with a qualified driver in the front seat beside him

also demonstrates that the defendant did not take all reasonable steps to avoid the particular event.

(d) Adequate driving experience

[181] However, despite the defendant holding only a class “G-1” drivers license as a

new driver in Ontario, he testified that he had more experience as a driver than his classification as a new driver in Ontario would indicate. He testified that he had a drivers license in Sri Lanka, where he resided for two years before retuning to Canada two years ago. He also said that he drove a manual transmission vehicle and operated an off-street motorcycle while residing in Sri Lanka. Furthermore, he said his driving experience in Canada consisted of taking five or more driving lessons in Canada with an approved driving instructor and one year of driving experience in Canada. However, when asked for the name of the driving school or the name of the driving instructor, the defendant was evasive and did not provide the name of his driving instructor. Instead, he stated that a friend had given him the telephone number of someone, and that he had telephoned this instructor who would then attend at his house.

[182] On the defendant’s contention of having suitable and sufficient driving experience

and that he is just more than a new and inexperienced driver in Ontario, based on his driving experience in Sri Lanka, I am not persuaded by this argument so as to negate his presumptive inexperience as a driver in Ontario and to counteract the negative impact of the breach of the s. 5(1) condition in Ont. Reg. 340/94 of being unaccompanied by a qualified driver. The defendant’s driving experience in Sri Lanka cannot be simply equated to being suitable or adequate driving experience in Ontario. In other words, was it rural driving experience or urban driving experience with similar highways, traffic lights, volume and speed of traffic? Furthermore, the graduated drivers licensing scheme and regulations placing conditions on new drivers in Ontario were enacted to ensure public safety. Because of the serious harm that can result from inexperienced or new drivers operating motor vehicles on Ontario highways and roadways these regulations were enacted to reduce the risk of serious accidents that could be potentially caused by these novice drivers. Therefore, I do not find that the defendant took all reasonable care when he failed to be accompanied by a qualified driver while he had been driving on the day of the collision, and that his presumptive inexperience driving in Ontario and the need to be accompanied by a qualified driver has not

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been rebutted or negated by his previous driving experience in Sri Lanka and in Canada.

[183] In addition, since ignorance of the law is not a defence, the defendant’s suggestion

that he believed he could drive while being accompanied by a class “G-2” drivers license holder beside him would also not be evidence that he had taken all reasonable steps to avoid committing the offence of “turn not in safety”.

(e) Motorcycle exceeding speed limit

[184] The excessive speed of the motorcycle is but one factor in determining whether he

had taken all reasonable steps in the circumstances to see first if he could make the left turn across the path of approaching traffic in safety. Although in certain situations the speed of the approaching vehicle may demonstrate that a person is free of fault in committing the prohibited act of making an unsafe left turn, it is not the case here. In particular, the defendant’s obstructed view of westbound traffic negates the speed of the motorcycle since he would have been unable to see if any westbound vehicles were approaching the intersection before he could make his left turn. Therefore, in these circumstances the speed of the motorcycle does not trump the fact that his view was obstructed or that he had failed to see the motorcycle when it would have been visible to him at a point 39.17 meters east of his position.

[185] As for the foreseeability of a speeding motorcycle running the amber light, I do not

find this argument to be compelling. Obviously, one would not see a motorcycle approach if one’s view of westbound traffic is obstructed. It is therefore not a question of foreseeability but one of “seeability” or visibility.

[186] Although I am mindful that there may be in certain situations the possibility that

excessive speed of an oncoming vehicle may provide an accused person with the defence of taking all reasonable care, I do not find the excessive speed pertinent in this case since it would not have mattered what speed the oncoming traffic was traveling at, since the defendant had been negligent in making the left turn when his view of westbound traffic was obstructed, or that he had been negligent in not seeing the motorcycle when it would been visible to him when the motorcycle was 39.17 meters east of him.

(C) DID THE DEFENDANT ESTABLISH THE RIGHT OF WAY TO PROCEED? [187] The defendant has also argued, in the alternative, that he had established the right

of way to proceed when the traffic light had changed to amber, and the motorcyclist should have stopped and not have entered the intersection since he was facing an amber light.

[188] In their tome, The Law of Traffic Offences (2d ed.) (Carswell, Toronto: 1998), at p.

241, authors Hutchison, Rose and Downes, describe the general concept of right

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of way, as the legal right of one user of a road to require and expect another user will modify their behaviour to allow safe passage of the first user:

A right of way is the legal right of one user of the highway to require and expect that another user will modify his or her behaviour to allow safe passage of the first user. Thus, for example, a pedestrian who enters onto a crosswalk with a green light can expect that an approaching driver will stop to allow him or her to pass unharmed.

[189] Furthermore, in Payne v. Lane, [1949] O.J. No. 65 (QL), [1949] O.W.N. 284

(O.H.C.), Barlow J. at para. 7, confirmed there is a heavy onus upon a driver making a left turn to assure himself that they can turn into the path of approaching traffic in safety:

The law is well settled that a very heavy onus is placed upon a driver making a left-hand turn. He may only turn into the path of approaching traffic after having assured himself that he can do so in safety.

[190] Also, at para. 10 in Payne v. Lane, Barlow J. refers to the case of Joseph Eva,

Limited v. Reeves (1938) 2 K.B. 393, where it was held that a driver has a duty to take all reasonable steps to avoid colliding with an approaching vehicle even though that vehicle may be violating a rule of the road:

The rights and responsibilities of motor-car drivers at intersections equipped with red and green lights are very carefully dealt with in Joseph Eva, Limited v. Reeves (1938) 2 K.B. 393, and also reported in (1938) 2 All Eng. Rep. 150. Sir Wilfrid Greene, at p. 401, says:

"In my opinion Reeves was entitled to assume that traffic approaching the crossing from the west would act in obedience to the statutory regulations and he was not bound to assume or provide for the case of an eastbound vehicle entering the crossing in disobedience to the red light. This does not, of course, mean that if he had noticed the appellants' van in time, it was not his duty to take all reasonably possible steps to avoid coming into collision with it notwithstanding that the appellants' van was acting in breach of the regulations. But he did not see it and I do not see how it can be said that he was under any obligation to assume the possibility of its presence."

And again at p. 403:-

"But it is a very different matter where traffic at cross-roads is regulated by traffic lights or the police. The effect of such regulation is to give to the traffic, in whose favour the lights are showing, the monopoly of the crossing. When the traffic stream is set free by the green light the vehicles in it proceed in the direction in which they are going upon that basis."

[191] However, there is conflicting evidence on the motorcycle’s position when the traffic light for westbound traffic on Ellesmere Road had changed from green to amber. Keith Gravesande, who was the pedestrian walking westbound on the northside of Ellesmere Road towards Brimley Road, testified he was certain that the motorcycle

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had entered the intersection on a green light. Contrarily, Shelly King, who was seated in the front seat of Jay Gabriel’s vehicle that was stopped for a red light on Brimley Road facing southbound, said she had observed the motorcycle three car lengths east of the intersection when the traffic light had changed to amber. The defendant also testified that the light had been amber when the motorcycle entered the intersection. In deciding, who had been in the best position objectively to observe where the motorcycle was when the traffic light for westbound traffic had changed to amber, I find that Shelly King had been in the best position to make this observation. On the other hand, I do not find that Gravesande had been in the best position to see where the motorcycle was when the light had changed to amber. Gravesande had been about 70 to 80 feet from the intersection and would have had a more difficult angle to observe the motorcycle's position in relation the stop line for westbound traffic, when the light had changed to amber. Also, Jay Gabriel observed the motorcycle’s front lift to indicate an acceleration, while Shelley King said she heard the motorcycle accelerate when the light changed to amber. Accelerating to proceed through an intersection on an amber light, so as to avoid entering on a red light, is not an unusual action by many motorists. The action of the motorcycle’s front lifting is therefore consistent with what King had observed, and accordingly, I conclude that the motorcycle had entered the intersection on an amber light.

[192] As to the defendant’s contention that he had established the right of way over the

motorcycle, I do not agree. The defendant had a statutory duty prescribed in s. 141(5) of the H.T.A. and a common law duty as described in Joseph Eva, Limited v. Reeves (1938) 2 K.B. 393, to take all reasonably possible steps to avoid coming into collision with the motorcycle, notwithstanding that the motorcycle may have been acting in breach of a regulation.

[193] Therefore, when faced with the situation of a motorcycle proceeding straight

through the intersection on an amber light, the defendant has a duty to give a reasonable opportunity to the motorcycle to avoid a collision before turning left across its path. As such, the defendant is required to yield and allow the motorcycle to proceed pass him and not turn until it can be done safely. This requirement is consistent with sections 141(5) and 142(1) that require vehicles making left turns to yield to oncoming traffic, if it would be unsafe to turn or to avoid a collision. Furthermore, vehicles facing an amber light are required to stop, but only if they can do so safely. Since the motorcycle was about three car lengths east of the intersection when the light changed to amber, the close proximity of the motorcycle to the intersection may not have provided it with a reasonable and safe opportunity to stop. Therefore, the motorcycle still had the right of way to proceed, despite the amber light.

6. CONCLUSION [194] The “turn not in safety” offence set out in s. 142(1) of the Highway Traffic Act,

R.S.O. 1990, c. H.8, is a strict liability offence. As such, the defendant has

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available to him the defence of due diligence. The prosecution has met its burden in proving the prohibited act set out in s. 142(1) beyond a reasonable doubt, that the defendant had turned left not in safety across the path of an approaching vehicle in the intersection of Brimley Road and Ellesmere Road on June 1, 2007, given that a collision had occurred between them.

[195] To escape liability once the prosecution has met it burden of proving the actus

reus of the offence, the defendant has the burden to prove the defence of due diligence on a balance of probabilities. In other words, the defendant has the obligation to prove either he reasonably believed in a mistaken set of facts, if true, would render his act innocent of turning left across the path of the oncoming motorcycle or that he had taken all reasonable steps in the circumstances to first see that he could make the left turn in safety before making the turn.

[196] Despite the defendant’s contention he has made out the defence of due diligence,

I find the evidence in regards to his reasonable care does not prove the defendant had been diligent in first seeing that he could make the left turn in safety before he actually commenced the left turn across the path of the oncoming motorcycle. From the evidence, I find the defendant, as a new and inexperienced driver, had acted unlawfully and negligently in driving his brother’s motor vehicle without a qualified driver beside him in the front seat. I do not find his driving experience in Sri Lanka or his five or more driving lessons in Canada or his one year of driving experience in Canada to be adequate or sufficient so as to negate the affect of not having a qualified driver beside him to give him proper instruction on his driving maneuvers. In addition, I find him to be negligent in turning left when his view had been initially obstructed by the two vehicles in the westbound left turn lane turning southbound on Brimley Road and he could only see clearly a few car lengths east of the intersection. I also find him negligent in not seeing the motorcycle when it had been visible to him at 39.17 meters east of his position. As such, these circumstances demonstrate that he did not take all reasonable steps for the circumstances to first see that he could make the left turn in safety.

[197] As for the other branch of the due diligence defence, that he had reasonably

believed in a mistaken set of facts, if true, would render his act of turning left innocent, I do not find that the defendant has met his burden of proof on a balance of probabilities. I do not find his belief to be reasonable that there were no oncoming vehicles when he commenced his left turn, especially since his view had been obstructed and he could only see clearly for a few car lengths east of the intersection, or that vehicles would stop for an amber light and not enter the intersection when drivers are permitted in law to proceed into the intersection on an amber light if it would not be safe for them to stop. In addition, there was a point in his movement in the intersection when the motorcycle was visible in his sight line when it was 39.17 meters east of him. Therefore, this also shows his belief that there were no oncoming vehicles or that it had been safe to turn, to be unreasonable.

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[198] Furthermore, the defendant did not have the right of way when the traffic light had changed to amber. The motorcycle was about three car lengths east of the intersection when the light had changed to amber and if the motorcycle had been unable to stop safely, it would have had the right to proceed with caution into the intersection. In that case, the motorcycle would still have the right of way. Accordingly, the defendant should have not commenced his left turn since he could not be certain that approaching vehicles that were near the intersection would have stopped, when the traffic light changed to amber.

[199] As a consequence, the defendant has not met his burden on proving on a balance

of probabilities that he had taken all reasonable care in the circumstances to ensure that it was safe to make the left turn at Brimley Road and Ellesmere Road, or that he had reasonably believed that it had been safe to turn left, or that there was no oncoming traffic, or that drivers would stop for an amber light and not enter the intersection, to make his unsafe left turn innocent.

[200] Moreover, the defendant’s failure to first see that he could make the left turn in

safety, before he commenced turning left across the a path of the oncoming motorcycle, caused a tragic and irreversible consequence.

7. DISPOSITION [201] Therefore, based on the totality of the evidence and the foregoing reasons, I find

that the prosecution has met its legal burden of proving that the defendant has committed the offence set out in s. 142(1) of the H.T.A. beyond a reasonable doubt. A conviction will, therefore, be entered against the defendant for committing the offence of “turn not in safety”.

Dated at the City of Toronto on May 26, 2008. ____________________________ QUON J.P. Ontario Court of Justice

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