R v Roza

R. v. Roza

2011 ONCJ 539
Ontario Court of Justice, Burlington Provincial Offences Court — Justice of the Peace D.M. MacDonald | October 13, 2011

Background

On September 25, 2009, at 4:45 p.m. in Oakville, Danijela Roza was driving her black BMW northbound on Wynten Way when she made a left turn onto Kingsway Drive. At the same time, pedestrian Vanessa Elsohemy was crossing Kingsway Drive on foot, having walked quickly southbound and stopped at the stop sign before proceeding across the intersection.

Roza's BMW struck Elsohemy when the pedestrian was approximately three-quarters of the way across Kingsway Drive — in the eastbound lanes, while Roza was driving westbound. Two independent witnesses observed the collision from their vehicles stopped at the intersection. Elsohemy suffered a broken collarbone, cuts, bruises, and a head injury requiring staples. Roza was charged with careless driving under section 130 of the Highway Traffic Act.

Issues

1. Whether the prosecution proved beyond a reasonable doubt that Roza was driving without due care and attention
2. Whether the defence's failure to call evidence affected the outcome

The Standard for Careless Driving

The court applied the test from R. v. Beauchamp: whether it was proved beyond reasonable doubt that the accused failed to use the care and attention that a driver of ordinary care would have used in the circumstances. The court emphasized that "due care" means care owing in the circumstances — a constantly shifting standard depending on road, visibility, weather, and traffic conditions.

The prosecution presented evidence from the injured pedestrian and two independent witnesses showing that Roza was driving in the wrong lane when the collision occurred. A technical collision investigator's report (admitted by consent) concluded that Roza had sufficient time and distance to see the pedestrian and either stop or take evasive action. The report noted that while the setting sun may have impaired Roza's vision, "without a clear view of the roadway ahead, the driver should not have been proceeding."

The Defence Strategy Backfires

Following the R. v. McIver precedent, the court noted that when the defence elects not to call evidence, the prosecution still must prove careless driving beyond a reasonable doubt — but there's no contrary evidence for the court to consider. The defence provided no explanation for why Roza was in the wrong traffic lane or why she didn't see the pedestrian who was almost completely across the intersection.

The court distinguished this case from R. v. Namink, where "momentary inattention" wasn't enough for conviction because there was an explanation (hitting ice). Here, there was no explanation at all — just a collision where the driver was on the wrong side of the road, striking a pedestrian who had nearly completed crossing.

Key Takeaway

When you're driving in the wrong lane and hit a pedestrian with no explanation, calling no defence evidence is a recipe for conviction.

The court found this was more than momentary inattention — it was a failure to exercise the care that an ordinary driver would use when vision is impaired by sun glare, which requires either stopping or proceeding with extreme caution.