PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION #40150828 HER MAJESTY THE QUEEN and Gregory G. Hunt H.W. Goliath, P.C.J J. Morrall, CROWN PROSECUTORS, Prince Albert, SK. FOR THE CROWN. B. Lane, BRADLEY AND LANE LAW OFFICE, Shellbrook, SK. FOR THE DEFENCE. 1. This is a charge of failing to yield, contrary to Section 50(3) of The Highway Traffic Act: “When the driver of vehicle intends to turn left across the path of any vehicle approaching from the opposite direction, he shall yield the right of way and shall not make the turn until he has afforded reasonable opportunity to the driver of the approaching vehicle to avoid collision.” 2. The defendant driving 1971 Chrysler Newport was proceeding north on 15th Avenue with the intention of turning left at 15th Street East. He testified that he stopped at the intersection for about 15 seconds to allow several south-bound vehicles to go by, and then began his left turn. Before he got through to the turn he saw another on-coming vehicle, this one 1987 Ford Tempo driven by Adrianna Wormworth. He says that he saw this vehicle for only few seconds before the collision. 3. Since the defendant turned across the path of the Ford Tempo, and since the two vehicles came into collision, it would appear prima facie that he failed to yield as he was required to do by Section 50(3). 4. The right of way, however, is not absolute. As Culliton, J.A. said in Mallin v. Clark, (1955) 1955 CanLII 215 (SK CA), 17 W.W.R. 333, 336: “The fact that the defendant had the right of way did not give him an absolute right, nor did it relieve him from compliance with his common law and statutory duty to drive with due care in the circumstances. The duty of the driver with the right of way is well stated by Aylesworth, J.A. in Woodward v. Harris (1951) OWN 221 at 229, approved on this point (1952) 1951 CanLII 375 (SCC), DLR 82, 1951 Can Abr 505, 1952 Can Abr 518 (S.C.C.) as follows: ‘Authority is not required in support of the principle that driver entering an intersection, even although he has the right of way, is bound to act so as to avoid collision if reasonable care on his part will prevent it. To put it another way: he ought not to exercise his right of way if the circumstances are such that the result of his so doing will be collision which he reasonably should have foreseen and avoided.’” 5. In Bresciana v. Continental Appliances et al, (1991) 1990 CanLII 7412 (SK QB), W.W.R. 570, Armstrong, J. said: “Section 50(3) has to be read as meaning ‘yield the right of way to vehicle having the right to continue.’ It cannot mean that the vehicle making left-hand turn creates right of way and is then required to yield to it. It means that if vehicle has the right to proceed, then it must be allowed to proceed first.” 6. Section 50(3) of The Highway Traffic Act is an offence of strict liability, as are most similar regulatory offences. This means that once it is established that the defendant did the prohibited act, it is open to him to establish defence of due diligence; R.v. Sault Ste. Marie, (1978), 1978 CanLII 11 (SCC), C.R. (3rd) 30. The defence must be established on balance of probabilities; R.v. Wholesale Travel Group, (1991) 1991 CanLII 39 (SCC), S.C.R. 154; R.v. John Kozun, (Sask. Q.B. February 20, 1997). 7. In Matilda Margaret Dyck (Sask. Q.B. November 10, 1995) Gerein, J. had before him an appeal from conviction under Section 50(3) in the Traffic Safety Court. At p. of the unreported decision, he said, “... the requirement to yield to an approaching vehicle is seen to be determined by flexible test which takes into account all of the prevailing circumstances. In doing this, one must focus on the requirement that an approaching vehicle must be afforded reasonable opportunity to avoid collision.” 8. In this case, while Ms. Wormworth testified that she was driving at the speed limit of 50 kilometres per hour, there is evidence that she may have been driving somewhat faster. Neither the defendant nor his passenger saw her vehicle until it was nearly into the intersection. Both described the movement of her vehicle as being “pretty fast”. Micheljohn says that when she crested the hill just before the intersection her vehicle was “lifting” or “hovering”. The defendant concurred with this observation, saying that her vehicle “kind of came off its shocks”. Wormworth did not see the defendant’s vehicle until just before the collision, although she did have time to hit the brakes, and may have swerved bit to the left. The impact of the collision drove the defendant’s vehicle sideways, causing extensive damage. The Tempo was totalled. Wormworth’s passenger was knocked unconscious, and sustained bruised collar bone. The defendant’s passenger was also knocked out and received cut to the head requiring three or four stitches. 9. The time of the collision was about 7:30 p.m. It was getting dark. Wormworth says that her headlights were on. The defendant does not know whether her headlights were on or not, but says that he would have seen them if they were. His passenger says that Wormworth had only her park lights on. Her passenger, Mr. Villeneuve, says that could have been the case. 10. Neither road conditions nor weather conditions appear to have been factor in the collision. There is no evidence that alcohol was factor or that either driver’s ability was in any way impaired. Visibility appears to have been reasonably good, given the time of day and the fact that the intersection is lit by street lights. Traffic was light, although the defendant did have to wait at the intersection for several south-bound vehicles to go by before he turned. 11. Having regard to the evidence of the drivers and their passengers and to all of the circumstances I find that the defendant when he commenced his turn across the path of the Tempo was entitled to assume that it was safe to do so, as there did not appear to be any other vehicles close enough to the intersection to present a hazard. The Wormworth vehicle probably approached and entered the intersection too fast for the defendant to take appropriate evasive action. This vehicle may also have had only parking lights on, but on the evidence, it is not possible to say. While the Crown argues that the evidence of speeding is equivocal, find, on balance of probabilities, that it was contributing factor. It may well be that the defendant through the exercise of higher degree of vigilance may have seen the oncoming Tempo. As stated in R.v. Turgeon, (1958) 1958 CanLII 171 (SK QB), 28 C.R. 21, 24-25: “the law does not require of any driver that he should exhibit perfect nerve and presence of mind, enabling him to do the best thing possible. It does not expect men to be more than ordinary men. Drivers of vehicles cannot be required to regulate their driving as if in constant fear that other drivers who are under observation, and apparently acting reasonably and properly, may possibly act at critical moment in disregard of the safety of themselves and other users of the road. But the law does insist upon reasonable amount of skill in the handling of vehicle which is potential source of danger to other users of the road ... the question always is ‘What would an ordinary prudent person in the position of the plaintiff have done in relation to the event complained of?’” Conclusion 12. I find that the defendant’s actions did not fall short of the standard of care demanded of ordinary prudent drivers faced with similar circumstances, and that with respect to the failing to yield, the defence of due diligence has been established. 13. The other requirement of Section 50(3) is that the defendant “shall not make the turn until he has afforded reasonable opportunity to the driver of the approaching vehicle to avoid collision”. I find as a fact that when the defendant commenced his turn, any vehicle lawfully approaching from the opposite direction would have been able to avoid the collision. 14. I find the defendant not guilty. DATED this 26th day of March, A.D., 1999, at the City of Prince Albert, in the Province of Saskatchewan. H.W. Goliath, Provincial Court Judge
A charge of failing to yield, contrary to s.50(3) of the Highway Traffic Act. The collision caused extensive damage to the defendant's vehicle and totaled the second. Two passengers were knocked unconscious. One sustained a bruised collar bone and the other required stitches to the head. HELD: The defendant was found not guilty. His action did not fall short of the standard of care demanded of ordinary prudent drivers faced with similar circumstances. The defence of due diligence was established with respect to the failing to yield. The second requirement of s.50(3) is that the defendant shall not make a turn until he has afforded a reasonable opportunity to the approaching vehicle to avoid a collision. It was found as a fact that that when he commenced his turn, any lawfully vehicle approaching from the opposite direction would have been able to avoid the collision.  1)Since the defendant turned across the path of the on-coming vehicle and since they came into collision, it would appear prima facie that he failed to yield as required by s.50(3). The right of way, however, is not absolute. As most regulatory offences s. 50(3) is an offence of strict liability which means that once it is established the defendant did the prohibited act, it is open to him to establish a defence of due diligence on a balance of probabilities. 2)Speeding by the second vehicle was a contributing factor. It could not be determined whether the second vehicle had only its parking lights on. Neither road nor weather conditions appeared to have been a factor. Alcohol was not a factor. Visibility was reasonably good given the time of day and the fact the intersection was lit by street lights. 3)When the defendant commenced his turn across the path of the second vehicle he was entitled to assume it was safe to do so as there did not appear to be any other vehicle close enough to the intersection to present a hazard.