Ontario Court of Justice

Date: 2016-05-30 Court File No.: Dryden, ON 26722888B

In the Matter of an Appeal

Under Subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

HEATHER MADUSSI Appellant

— and —

HER MAJESTY THE QUEEN Respondent

Before: Justice Peter T. Bishop

Heard on: May 9, 2016

Reasons for Judgment released on: May 30, 2016

Counsel:

• Ritchie Noel, counsel for the Appellant
• Wade Meeks, counsel for the Respondent Her Majesty the Queen

BISHOP J.:

BACKGROUND

[1] This matter comes before me by way of an appeal from a conviction and sentence of Her Justice of the Peace D. MacKinnon given on August 11, 2015 pursuant to a red light fail to stop contrary to Section 144(18) of the Highway Traffic Act.

[2] It is conceded that the sole issue for the Court to decide is whether the Justice of the Peace erred in failing to grant a directed verdict at the end of the Crown's case.

[3] Justice of the Peace MacKinnon's decision was very brief on that issue wherein she stated: "well, the defence does raise an interesting issue of…on its motion for directed verdict, I guess, for the matter to be dismissed. As to whether there has to be evidence of the light being red, obviously that evidence is not always available because there isn't always someone sitting with or near the defendant on their side of the lights. The question is should the Court take judicial notice of the fact that lights work, red in one direction and in the opposite direction, green and that the green light itself is the one that turns yellow and then turns to red? The Court has heard clear evidence that the light was green from the evidence of the witness who was there and Court is prepared to take judicial notice the way that lights operate which is that while they are green in one direction they are red in the other direction so the motion is dismissed."

CASE LAW

[4] I've reviewed the case law put forward by both the appellant and the respondent specifically R v Arnold [2011] P.E.I.J. No.25; R v Newton [1996] O.J. No.5360; R v Wu [1996] O.J. No.5361; R v Maciata (2008) ONCJ 503; R v Potts (1982) 36 O.R. (2d) 195 and United States of America v Shepherd, [1977] 2 S.C.R. 1067.

[5] These cases can be distinguished on the facts but I am finding that the Justice of the Peace made an error of law to state that she can take judicial notice of the operation of a traffic light. This does not allow for mechanical failure or blown out bulbs etc.

[6] The case of United States of America v Shepherd outlines the correct test for a non-suit at the end of the Crown's case which is the same test at the end of a preliminary hearing.

[7] If the Justice of the Peace had simply stated that she took judicial notice of how the traffic lights work, then the appellant would have been successful. Here; the Justice of the Peace went further and found an inference from the evidence of the principal Crown witness, Ms. LeClerc, that the light was green when she entered the intersection and was still green after the collision and that she heard an admission by the appellant that she told someone that she went through a light that she shouldn't have.

[8] In all of the circumstances there was some evidence upon which the trier of fact could convict and the Justice of the Peace was correct to dismiss the motion for directed verdict.

[9] In these circumstances the appeal will be dismissed and the decision of Justice of the Peace MacKinnon is upheld.

Released: May 30, 2016

Signed: "Justice Peter T. Bishop"