ONTARIO COURT OF JUSTICE

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1 COURT FILE No.: Halton - Burlington DATE: Citation: R. v. Trevisan, 2009 ONCJ 34 ONTARIO COURT OF JUSTICE BETWEEN: Her Majesty the Queen AND Jessica M. Trevisan Before Justice of the Peace Kenneth W. Dechert Heard on September 4, 2008 Reasons for Judgment delivered orally on January 30, 2009 Statutes, Regulations and Rules Cited: Highway Traffic Act, R.S.O c. H.8, as amended, s. 142(1) I. Lagden... legal representative for the prosecution (City of Burlington) V. Pellicori... legal representative for the defendant Jessica M. Trevisan JUSTICE OF THE PEACE DECHERT: INTRODUCTION [1] By way of certificate of offence number , Jessica M. Trevisan stands charged that she on the 11 th day of February, 2008 at Plains Road East at Cedarwood Place, in the City of Burlington, did commit the offence of Turn Not in Safety, contrary to the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, section 142(1). [2] On the 4 th day of September, 2008, Jessica M. Trevisan, hereinafter referred to as the defendant, entered a plea of not guilty to the said charge before me and a trial of the matter then ensued. Following the completion of the trial on the said date, I reserved judgement and the matter was adjourned to January 30, 2009 for my judgement. [3] The prosecutor, the City of Burlington, was represented by I. Lagden. The

2 2 defendant was represented by her legal representative, V. Pellicori. RELEVANT STATUTORY AND COMMON LAW [4] The defendant is charged with the offence of turn-not in safety, contrary to subsection 142(1) of the Highway Traffic Act. That subsection reads as follows: 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. [5] According to the Ontario High Court decision in Regina v. Lebedorf, [1962] O.W.N. 233 (H.C.), subsection 142(1) of the Highway Traffic Act creates two separate offences; the offence of failing to see first that such movement can be made in safety and the offence of failing to give a signal plainly visible to the operator of any other vehicle that may be affected by such movement. The defendant is charged with the first of such offences, that of turn-not in safety. [6] In his decision in the case of Regina v. Dillman, [2008] O.J. No (Ont. C.J.), Duncan Ont. Ct. J., determined that the offence of turn-not in safety set out in subsection 142(1) of the Highway Traffic Act was an offence of strict liability. I am bound by this decision in respect of the issue of the classification of the subject offence. [7] In reaching his conclusion that the subject offence was one of strict liability rather than absolute liability, Duncan Ont. Ct. J. reasoned, inter alia, as follows: There is a presumption in favour of strict liability. The legislature must make a contrary intention clear. As noted in Kanda [Regina v. Kanda, [2008] O.J. No. 80 (Ont. C.A.)] the overall regulatory scheme of the HTA [Highway Traffic Act] is neutral as between strict and absolute liability. The penalty, being the general penalty applicable to HTA offences, is similarly neutral. The particular subject matter of section 142(1) a rule of the road respecting turns and lane changes is in itself non-indicative, though I think it is fair to suggest that if an equipment violation as in Kanda is considered to be a strict liability offence then it should follow that a rule of the road regarding vehicle movement should be similarly viewed. This is particularly so when another section speaking specifically to left turns, 141(5) HTA, is conceded by the Crown to be a strict liability offence. Also instructive by way of comparison is City of Lévis v. Tétreault (2006) 207 C.C.C. (3d) 1 (S.C.C.) where an offence of operating a vehicle without having paid registration fees was held to be a strict liability offence. The legislature, aware of the issue, has not chosen words that point to absolute liability for this offence. The trial justice placed emphasis on the use of the word shall in the section. However as Kanda suggests, this word should not be overemphasized. Most statutes creating prohibitions contain similar mandatory words. They should not be seen as ousting exceptions or legally recognized defences.

3 3 Further, the whole phrase is shall first see that the movement can be made in safety. The very concept of doing something in safety suggests to me a fluid standard where what is required will vary according to the circumstances, unlike a mandatory direction that a vehicle shall stop at a red light: Regina v. Kurtzman (1991) 66 C.C.C. (3d) 161 (Ont. C.A.). I view the phrase as the equivalent of saying shall first ensure that the movement can be made in safety or shall first take all reasonable steps to ensure that the movement can be made in safety words that don t suggest a guarantee but rather the exercise of reasonable care: see R.v. Z-H Paper Products Limited (1979), 27 O.R. (2d) 570 (Div. Crt.). In any event even if these interpretations are not sound, the language does not clearly suggest absolute liability and the presumption against that categorization stands. [8] In light of the determination made in Regina v. Dillman, supra. categorizing the offence of turn-not in safety as one of strict liability, the prosecution is not required to prove the existence of mens rea on the part of the defendant. If the prosecution is able to prove the elements of identification of the defendant and the actus reus, beyond a reasonable doubt, then the mental element of negligence is imported into the offence on a prima facie basis. In that circumstance, the legal burden of proof then shifts to the defendant to establish, on a balance of probabilities, that in committing the prohibited act, he/she exercised due diligence. [9] In the seminal case of Regina v. Sault Ste. Marie [1978] 2 S.C.R (S.C.C.), Dickson J. stated that in strict liability offences an accused is able to avoid liability by proving that he took all reasonable care. He went on to state that this factor involves consideration of what a reasonable man would have done in the circumstances, noting that the defence is available in circumstances where 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. [10] Accordingly, in the case at bar, in order to secure a conviction against the defendant, the prosecution must first prove that the defendant committed all of the essential elements of the actus reus of the subject offence to the standard of proof of proof beyond a reasonable doubt. If the prosecution is able to discharge its onus of proof to the requisite standard, then the defendant may attempt to exculpate herself by showing that she exercised due diligence, thereby negating her presumed negligence in committing the prohibited act. [11] In his decision in the case of Regina v. Smith, [2001] O.J. No (Ont. C.J.), Quon J.P. determined that the offence of change lane-not in safety, contrary to subsection 142(1) of the Highway Traffic Act, was an offence of absolute liability. In the course of rendering his decision, the Justice of the Peace undertook an analysis of the actus reus of the offences of making a turn or lane change movement not in safety. I find his analysis in this regard both instructive and persuasive. [12] In commenting on the actus reus of the offence of change lane-not in safety, in the said decision, Quon J.P. stated, inter alia, as follows:

4 4 Section 142(1) does not speak about the driver s belief that it is safe to move but speaks on whether the actual movement can be made in safety. It is not whether the driver believes it is safe to move but that it is actually safe to move. The driver can only move when it is safe to do so. Therefore, if that movement causes another driver to react unnecessarily, unexpectedly or excessively, then the movement cannot be said to have been made in safety. Such movement must be considered objectively in relation to other traffic in the proximity of the movement to determine whether it was done in safety. Section 142 is an absolute liability offence. The prosecution does not need to prove any mens rea on the part of the defendant, just the actus reus of the offence, that being a movement or lane change not made in safety. Unnecessary, unexpected or excessive reaction on the part of another driver affected by the movement must also be objectively considered in relation to the existing circumstances. Consideration must also be made of various factors, including the speed of traffic, the amount of traffic, the weather, the road surface and the time of day in relation to the reaction of the affected driver. There are various sorts of reactions made by affected drivers in proximity of the impugned unsafe movement that may not be fall in the category of unnecessary, unexpected or excessive reactions. Such moderate reactions may include voicing oral expletives, making hand gestures indicating contempt, sounding a horn, flashing one s lights or lightly applying the brakes. On the other extreme are reactions that do fall into the category of unnecessary, unexpected or excessive reactions. Immediate evasive actions or manoeuvres to avoid a collision, or the unexpected but necessary braking to avoid a collision are instances of such reactions. If there is evidence of unnecessary, unexpected or excessive reaction from the affected driver to a movement, that movement would then be unsafe. [13] In the case of Regina v. Dillman, supra., Duncan Ont. Ct. J. made the following comments pertaining to the text of subsection 142(1) of the Highway Traffic Act: The Appellant argues first that section 142(1), by requiring the left turning driver to first see that the movement can be made in safety places focus on the start of a turn. It is argued, in effect, that if the coast is clear when the turn begins, the driver has complied with the section. I do not agree. In my view the obligation is to ensure that the turn can be made, that is, in its entirety, in safety. The reference to first is, I think, a reference to a first or primary obligation the second is to signal. [14] Furthermore, in considering the issue of the existence of due diligence in relation to the offence of turn-not in safety, Mr. Justice Duncan wrote as follows: All of the circumstances must be considered in determination of whether a turn was made in safety. Where, as here, visibility of oncoming traffic is limited, it is my view that safety requires that the left turning driver make allowances for the predictable shortcomings and potential negligence of drivers who may soon appear. While it has sometimes been said that a driver is entitled to assume that other drivers will obey the rules of the road, I think there are limits to such an

5 5 THE ISSUES assumption particularly where there is an onus to do something in safety. In my view the safe left turner is not entitled to assume that all other drivers will be strictly adhering to speed limits or paying perfect attention to the road ahead. On the other hand it would be an unreasonable standard of care and tantamount to imposing absolute liability to hold that the turn was not made in safety because an accident was caused by, for example, the gross speed or gross inattention of an oncoming driver. [15] The central issue in this trial is whether the prosecution has proven the subject offence of turn-not in safety, beyond a reasonable doubt. [16] The sub-issues in this proceeding are as follows: (i) whether the prosecution has proven all of the elements of the actus reus of the subject offence as against the defendant, to the standard of proof of proof beyond a reasonable doubt; and (ii) if the prosecution has met its burden of proof with respect to the issues of identification and the actus reus, whether the defendant has established the defence of due diligence, on a balance of probabilities, thereby entitling her to be acquitted of the subject charge. THE EVIDENCE [17] During the course of the trial of this matter, the Court received viva voce evidence from four witnesses. The prosecution proffered its evidence through the testimony of Corrine O Brien, Denise Morris and Police Constable Craig Fallis, who were called to the witness stand in that order. It should be noted that Ms. Morris was excluded from the courtroom during the testimony of Ms. O Brien. [18] Once the prosecution had presented its case through the testimony of its three witnesses, it closed its case in this proceeding. At that point in time, the defendant elected to testify. She did not call any further evidence. [19] During the course of their respective testimony, Ms. O Brien, Ms. Morris and the defendant made reference to the length of the courtroom (courtroom number one, located in the Burlington Provincial Offences Court, 2051 Plains Road East, Burlington, Ont.), when attempting to describe estimated distances. At the end of the trial, I asked both legal representatives to estimate the length of the courtroom in terms of imperial measurement. In response, both representatives agreed that the courtroom was approximately 40 feet in length. (i) The Testimony of Corrine O Brien [20] Ms. Corrine O Brien testified that on February 11, 2008, at about 7:00 p.m., she

6 6 was involved in a motor vehicle accident in the westbound lanes of Plains Road, in Burlington. [21] She testified that at the time of the accident she was operating her motor vehicle in the right westbound lane of Plains Road, approaching a street intersecting Plains Road to her right. She described the subject area of Plains Road as a commercial area. She noted that while it was very cold out at the time, the roads were dry. [22] Ms. O Brien testified that as she was operating her vehicle in the right lane, she observed a motor vehicle travelling on the said intersecting street, approaching a stop sign located on the intersecting street at its intersection with Plains Road. She advised that at the time she first observed the vehicle, it was located a distance equivalent to the length of the courtroom (40 feet) away from the intersection with Plains Road. She indicated that at this point in time she was located approximately 40 feet east of the said intersection, travelling in a westerly direction at an estimated rate of speed of about 60 kilometres per hour. [23] Ms. O Brien testified that as this vehicle approached the intersection and the stop sign at the intersection, she observed it hesitate and then proceed to turn to its left from the street into the intersection with Plains Road, in front of her. Ms. O Brien stated that she did not see the vehicle stop for the said stop sign. [24] Ms. O Brien testified that when the vehicle made its turn to its left, she then swerved to her left in an attempt to avoid a collision. She advised, however, that despite her efforts to miss the vehicle, she collided with it in the left westbound lane of Plains Road, closer to the middle of the road. She indicated that she did not believe that she had any other opportunity to avoid the collision. [25] Ms. O Brien testified that in colliding with the said vehicle, the front end of her motor vehicle came into contact with the driver s side door of the other vehicle. She advised that following the accident, the vehicles remained in the same location until the police officer arrived at the scene. [26] Ms. O Brien testified that the defendant, who she identified as the person seated at the counsel table in the courtroom, was the driver of the vehicle which had made a left-hand turn in front of her and with which her motor vehicle had collided. (ii) The Testimony of Denise Morris [27] Ms. Denise Morris testified that on February 11, 2008 after 7:00 p.m., she witnessed a motor vehicle collision, which took place on Plains Road East at its intersection with Cedarwood Place. [28] Ms. Morris testified that at that time, she was travelling in the left eastbound lane of Plains Road East approaching its intersection with Cedarwood Place. She stated that she had occasion to observe a Mazda motor vehicle travelling on Cedarwood Place approaching its intersection with Plains Road East. She noticed that the Mazda stopped prior to entering the intersection and then pulled out and turned to its left from Cedarwood Place

7 7 on to Plains Road East. [29] Ms. Morris testified that when the Mazda turned left, a Sunfire motor vehicle, travelling in the left, westbound lane of Plains Road, collided with the Mazda. She advised that the collision took place close to the centre lane dividing the east and westbound lanes of Plains Road East. Ms. Morris stated that in colliding with the Mazda, the Sunfire hit the Mazda at a point close to its left rear wheel. [30] Ms. Morris testified that she had occasion to observe the actions of the Mazda vehicle approximately five seconds prior to the time of the collision. She stated that she did not notice anything unusual in the area of the intersection of Plains Road East and Cedarwood Place as she approached this intersection, prior to the moment of the collision. In response to a question as to the road and weather conditions at the material time, Ms. Morris simply noted that the collision took place in the evening and that both the roads and the weather were clear. [31] Ms. Morris testified that when the Mazda pulled out of Cedarwood Place to turn left on to Plains Road East, the Sunfire was located close to the entrance to the Jug Milk store at the corner of Cedarwood Place and Plains Road East. In particular, Ms. Morris stated that the Sunfire was located to the east of the subject intersection, a distance equivalent to the approximate length of the courtroom (40 feet), when the Mazda pulled out from Cedarwood Place. During cross-examination, Ms. Morris agreed with the proposition that the entrance to the Jug Milk store was located a distance of about 40 feet (the length of the courtroom) back from the subject intersection. (iii) The Testimony of Police Constable Craig Fallis [32] Police Constable Fallis testified that on September 4, 2008, he was employed as an officer with the Halton Regional Police Service and had been so employed since December [33] Constable Fallis testified that on February 11, 2008, he had occasion to investigate a motor vehicle accident, which had taken place at the intersection of Plains Road East and Cedarwood Place in the City of Burlington. The officer advised that he arrived at the scene of the accident at 7:49 p.m. on the said date. He advised that upon arriving at the scene of the accident at the said time, he observed the presence of a fire truck and two damaged motor vehicles on Plains Road East. [34] Constable Fallis testified that he observed a Sunfire vehicle located in the left westbound lane of Plains Road, near its intersection with Cedarwood Place. Upon examining this vehicle, the officer discovered that it had sustained damage to its front driver s side around the bumper area, as well as to its front quarter panel and hood area on the driver s side. [35] In addition, Constable Fallis testified that upon arriving at the scene of the accident he observed a second vehicle, which he described as a Protegé. This vehicle had come to rest in the right eastbound lane of Plains Road East, on the south side of the street.

8 8 Upon examining the Protegé, Constable Fallis noted that it had sustained damage to both of its driver s side doors. [36] I am able to take judicial notice of the fact that a Protegé is a motor vehicle manufactured by the Mazda Motor Corporation. [37] During the course of his investigation, Constable Fallis spoke with two individuals who were present at the accident scene. One of these individuals identified herself as Corrine O Brien, with a date of birth of January 22, The second individual identified herself by means of an Ontario photographic driver s licence as the defendant, Jessica Trevisan, with a date of birth of March 11, [38] Constable Fallis testified that at the location of the accident, Plains Road East is an east/west highway, with two lanes running in each direction, and with a common turn lane in the centre of the highway, which is accessible by traffic travelling in both directions. He further advised that Cedarwood Place is a highway which runs north and south in relation to Plains Road, with one lane in each direction. He went on to state that at the material time, southbound traffic on Cedarwood Place at its intersection with Plains Road was governed by a clearly visible stop sign. He noted that there was no traffic control governing east and westbound traffic on Plains Road East, at the subject location. [39] Constable Fallis testified that at the material time, Cedarwood Place did not continue in a southerly direction beyond Plains Road. He advised that southbound traffic on the said street was therefore required to turn either to the left or the right on to Plains Road East. [40] Constable Fallis testified that as a result of his investigation of the subject motor vehicle accident, he laid the charge of turn-not in safety against Jessica Trevisan. [41] During cross-examination, Constable Fallis stated that he was not aware of the existence of any obstructions, mobile signs or anything of that nature, in the vicinity of the location of the accident. In describing the road and weather conditions at the time, the officer stated that the roads were very dry and that the temperature was extremely cold. [42] Constable Fallis testified that a Jug Milk store is located at the northeast corner of Plains Road East and Cedarwood Place. In this regard, he went on to state that at the relevant time, the parking lot for the store was accessible from both Plains Road and Cedarwood Place. He estimated that the building housing the store was set back approximately 30 to 40 feet from Cedarwood Place. (iv) The Testimony of the Defendant [43] During her testimony, the defendant acknowledged that she was involved in a motor vehicle accident on February 11, 2008, at the intersection of Plains Road and Cedarwood Place. [44] In describing the location of the accident, the defendant advised that Plains Road

9 9 had, at the relevant time, five lanes with two lanes in each direction and with a centre turning lane, which was used for vehicles travelling in each direction. The defendant testified that at the time of the accident the roads were dry. She noted that while it was very cold outside, it was not snowing. [45] The defendant testified that on the date in question, the motor vehicle which she was driving was struck by a Sunfire motor vehicle. She advised that at the material time, she was operating her vehicle in a southerly direction on Cedarwood Place. She stated that as she approached the intersection with Plains Road, she brought her vehicle to a complete stop in accordance with the stop sign facing her at that location. [46] The defendant testified that once she stopped for the stop sign, she then edged forward really slowly. She stated that after looking both ways she noticed the Sunfire travelling on Plains Road towards her location, in the right (curb) lane. In estimating the distance of the Sunfire from her position at that time, she advised that it was located a distance equivalent to one and one-half to two courtroom lengths. The said vehicle was therefore, by the defendant s estimation, situate approximately 60 to 80 feet east of the subject intersection, at the said point in time. [47] During her testimony in chief, the defendant stated that after she stopped for the stop sign, she began to edge forward into the intersection with the intention of making a lefthand turn on to the eastbound lanes of Plains Road. She acknowledged that at that moment she saw the Sunfire proceeding towards her location. She stated that she continued to execute her left turn manoeuvre after noticing the presence of the Sunfire approximately 60 to 80 feet away from her location; because she believed that she had enough time to safely complete the turn. [48] The defendant testified that after edging out into the intersection, she proceeded to turn her motor vehicle to the left on to Plains Road. She advised that at that point in time, the Sunfire swerved in an attempt to drive around her and then collided with her vehicle at a location close to the centre turning lane. She stated that in her view, the Sunfire did not attempt to slow down, noting that she saw the driver of the Sunfire swerve and try to drive around [her] car. She further testified that she felt that the action of the driver in this regard was a little unexpected. She was of the view that driver s reaction to her left turn movement was an unusual reaction, stating that she was taken a back by it. [49] The defendant testified that as a result of the collision, the Sunfire hit her vehicle in the area between the driver s side doors. She went on to note that following the collision, her vehicle came to rest in the eastbound curb lane of Plains Road. [50] During cross-examination, the defendant testified that immediately prior to the time of the said motor vehicle collision, she was operating her motor vehicle southbound on Cedarwood Place approaching its intersection with Plains Road. She stated that upon bringing her vehicle to a stop for the stop sign at the intersection, she was not able to see the Sunfire approaching the subject intersection to her left, because of the existence of snow banks at the intersection.

10 10 [51] The defendant stated that she just stopped a little bit and then moved forward a distance of approximately one metre. She advised that it was at that point in time that she noticed the Sunfire travelling westbound on Plains Road, approaching the subject intersection. [52] The defendant agreed with the suggestion that she had seen the Sunfire prior to committing to pull out into the intersection, in the process of making her left turn. She testified that at the time that she saw the Sunfire, it was located a distance of about one and one-half to two courtroom lengths (60 to 80 feet) east of the intersection. [53] The defendant testified that upon first seeing the Sunfire, she thought that it was travelling at or about 60 kilometres per hour, being the speed limit for the relevant portion of Plains Road. She went on to state, however, that it appeared to her that the Sunfire was probably travelling at a speed in excess of the speed limit, possibly that of 70 kilometres per hour. [54] The defendant testified that the said collision took place in the area between the left westbound lane and the centre turning lane on Plains Road. She stated that at the time of the collision, both cars skidded away from the place of the impact; however, neither car was moved from the place where they came to rest, until the investigating police officer had arrived at the scene. [55] In concluding her testimony during cross-examination, the defendant acknowledged that the subject motor vehicle collision took place while she was in the process of executing a left turn, in the operation of her motor vehicle. ANALYSIS (i) The Actus Reus of the Offence [56] The defendant s testimony, considered in the context of the balance of the undisputed evidence herein, establishes all of the elements of the actus reus of the subject offence as against the defendant, to the standard of proof of proof beyond a reasonable doubt. The totality of the undisputed evidence establishes the following facts: (i) (ii) (iii) that on the 11 th day of February, 2008, at approximately 7:00 p.m., the defendant was driving a motor vehicle on Cedarwood Place approaching its intersection with Plains Road East, in the City of Burlington; that at the said time, the defendant attempted to execute a left turn from southbound Cedarwood Place to eastbound Plains Road East; that the defendant moved her vehicle out into the said intersection to execute the left turn movement, when a motor vehicle driven by Corrine O Brien was travelling in the right, westbound lane of Plains Road East, at an estimated rate of speed of 60 kilometres per hour;

11 11 (iv) (v) (vi) that at the moment when the defendant commenced her left turn manoeuvre, Corrine O Brien s vehicle was located an estimated distance of between 40 and 80 feet east of the intersection; that once the defendant commenced making the left turn, Corrine O Brien swerved her vehicle to the left in an effort to drive around the defendant s vehicle and thereby avoid a collision; that the vehicle driven by Corrine O Brien struck the vehicle driven by the defendant, while the defendant was in the course of making her left turn manoeuvre. [57] In analyzing the totality of the evidence, it is clear that at the material time, the vehicle operated by Corrine O Brien had the right-of-way as it travelled westbound on Plains Road East. In executing the said left-hand turn, the defendant moved across the path of Ms. O Brien s vehicle, causing Ms. O Brien to take immediate evasive action to attempt to avoid a collision. Unfortunately Ms. O Brien was unable to avoid colliding with the defendant s vehicle, despite her best efforts in that regard. [58] In commencing her left turn when Ms. O Brien s vehicle was located a distance of between 40 and 80 feet from the intersection, the defendant created an unsafe circumstance, causing Ms. O Brien to react unnecessarily and unexpectedly by swerving to her left from the right lane into the left lane. As stated by Quon J.P. in Regina v. Smith, supra.evidence of such a reaction by a driver affected by the turning movement of another driver constitutes a movement which cannot be said to have been made in safety. [59] While I acknowledge that the defendant testified that Ms. O Brien s vehicle was located approximately 60 to 80 feet east of the subject intersection at the time that the defendant commenced her left turn and that at that time Ms. O Brien s vehicle was likely travelling at a speed in excess of the 60 kilometre per hour speed limit, these points of evidence do not leave me in a state of reasonable doubt as to the issue of the defendant s commission of the actus reus of the subject offence. I am, however, of the view that the defendant s observations in this regard, are directly relevant to the sub-issue of whether she has established the defence of due diligence. [60] In light of the fact that the undisputed evidence establishes, beyond a reasonable doubt, that the defendant committed the actus reus of the subject offence, I must now determine whether she has shown, on a balance of probabilities, that in committing the subject offence she exercised due diligence and was, therefore, free of fault relative to the impugned left turn manoeuvre. (ii) The Defence of Due Diligence [61] The offence of turn-not in safety is a strict liability offence. It is therefore open to the defendant to avoid liability for the offence by proving that she took all reasonable care or, in other words, exercised due diligence. As stated in the case of Regina v. Sault Ste. Marie, supra., the said defence will be available to the defendant if she is able to show that

12 12 in making the apparent unsafe turn, she reasonably believed in a mistaken state of facts which, if true, would render the act innocent or she took all reasonable steps to avoid the event. [62] Based upon her testimony and her representative s submissions, it would appear that the defendant is contending that in performing the subject left turn, she acted on the basis of an honest and reasonable mistake of fact. During her testimony, the defendant stated that at the time that she committed to making the turning manoeuvre, she believed that she had sufficient time to complete the turn in safety. The defendant s representative submits that while the defendant may have erred in her belief pertaining to the adequacy of the distance between her vehicle and Ms. O Brien s vehicle at the moment that she commenced the manoeuvre, he contends that her belief in this regard was both genuine and reasonable. The representative impliedly argues that in making the subject turn the defendant exercised due diligence and is entitled, therefore, to be acquitted of the subject charge. [63] In his decision in Regina v. Kurtzman, (1991) 66 C.C.C. (3d) 161 (Ont.C.A.), Tarnopolsky J.A. stated that the due diligence defence must relate to the commission of the prohibited act, not some broader notion of acting reasonably. Furthermore, in his decision in Regina v. Stelco Inc., [2006] O.J. No (Ont. Sup. Ct.), Whitten Sup. Ct. J. enunciated the principle that due diligence imports a standard of objective reasonableness and that an honest, subjective belief is not enough. [64] After carefully weighing the defendant s testimony in the context of the totality of the evidence in this proceeding, I am satisfied that in committing to making the subject left turn at the time that she did, the defendant acted on the basis of an honest subjective belief that she had sufficient time and distance to safely complete the turn. The defendant was of the view that she acted with prudence and caution in slowly edging forward beyond the location of snow banks, prior to commencing the turn, in an effort to enhance her visibility of westbound traffic on Plains Road approaching her location. Once she had moved past the snow banks, she committed to making the impugned turn, feeling confident that she had enough time to safely execute the left turn in its entirety. [65] As stated above, the defendant s honest subjective belief in the safety of the manoeuvre is not enough to establish due diligence. Her belief in this regard must also be objectively reasonable. In my view, the preponderance of the evidence in this proceeding fails to establish that the defendant s subjective belief that she had sufficient time to safely complete the subject left turn was a reasonable belief. [66] The defendant testified that at the time that she committed to making the apparent unsafe left turn, the Sunfire travelling in the right, westbound lane, was situate, in her estimation approximately 60 to 80 feet east of the intersection of Plains Road East and Cedarwood Place. Furthermore, the defendant testified that in her estimation the Sunfire was travelling at a rate of speed of at least 60 kilometres per hour and possibly 70 kilometres per hour. [67] By making simple mathematical calculations, I am able to take judicial notice of

13 13 the fact that when a vehicle is moving at a rate of speed of 60 kilometres per hour, it travels a distance of feet in one second and that when a vehicle is moving at a rate of speed of 70 kilometres per hour, it travels a distance of feet in one second. In light of these facts, it is apparent that had Ms. O Brien not taken immediate action to attempt to swerve around the defendant s vehicle, once it had encroached into the curb lane at the outset of its left turn manoeuvre, Ms. O Brien s vehicle would likely have collided with the defendant s vehicle in that lane. [68] While the defendant may have believed that she had adequate time to complete the left turn in a safe manner, given her evidence as to the distance of Ms. O Brien s vehicle from her vehicle at the time that she commenced the turn, her perception as to the speed of Ms. O Brien s vehicle and the fact that it was dark out at the time of the incident, I conclude that the defendant s belief that the turn could have been made, in its entirety, in safety, cannot be considered a reasonable belief. [69] In reaching this conclusion, I also take into consideration the fact that at the relevant time, Ms. O Brien had the right of way proceeding westbound on Plains Road. The defendant s actions at the subject time were governed by a stop sign which directed her to yield to traffic travelling in both directions on Plains Road. Furthermore, there is no evidence before me which might have led the defendant to believe that at the moment that she committed to making the turn, Ms. O Brien was either attempting to reduce her speed or intending to exit off of Plains Road at a point prior to the intersection of Plains Road and Cedarwood Place. [70] Furthermore, there is no evidence upon which one might find that Ms. O Brien erred in the operation of her vehicle at the material time. As stated above, she had the right of way. She was apparently operating her vehicle at or about the speed limit. The totality of the evidence supports a finding that the defendant suddenly pulled out from Cedarwood Place on to Plains Road, in front of Ms. O Brien. Ms. O Brien took immediate evasive action to attempt to avoid a collision by swerving to her left and moving into the left, westbound lane, where the collision took place. [71] Ms. O Brien took all reasonable steps, under the circumstances, to attempt to avoid an accident. There is no evidence before me to suggest that the accident was ultimately caused by Ms. O Brien in reacting to the emergency caused by the negligence of the defendant. While I understand that the defendant is of the view that Ms. O Brien s actions in suddenly moving her vehicle to the left to attempt to drive around the defendant s vehicle, was an unusual reaction, which may have caused the collision, one must not lose sight of the fact that the defendant bore the onus of ensuring that the subject turn was made in safety. As stated by Mr. Justice Duncan in Regina v. Dillman, supra. the safe left turner is not entitled to assume that all other drivers will be strictly adhering to speed limits or paying perfect attention to the road ahead. [72] In conclusion, while I have no hesitation in finding that at the material time, the defendant harboured an honest subjective belief that she was able to safely execute a left turn from southbound Cedarwood Place to eastbound Plains Road East, her mistaken belief in

14 14 that regard was not objectively reasonable. Accordingly, the defendant has failed to prove, on a balance of probabilities, that in committing the prohibited act of making an unsafe turn, she acted on the basis of an honest and reasonable mistake of fact as to the amount of time she had to execute the turn. THE DECISION [73] As stated above, the prosecution has proven all of the elements of the actus reus of the offence of turn-not in safety, as against the defendant, to the standard of proof of proof beyond a reasonable doubt. [74] In light of the fact that this offence has been classified as one of strict liability, the mental element of negligence is automatically imported into the offence, once the actus reus has been established. The defendant has failed to discharge her legal burden of proving, on a balance of probabilities, that she exercised due diligence. The presumption of negligence has not, therefore, been negated. [75] The prosecution has therefore succeeded in proving the subject charge against the defendant, beyond a reasonable doubt. The defendant is therefore found guilty of the offence of turn-not in safety contrary to subsection 142(1) of the Highway Traffic Act, and a conviction is registered. Released: January 30, 2009 Signed: Justice of the Peace Kenneth W. Dechert