Court File and Parties
Court File No.: Central East - Newmarket 4961-999-00-9760578B-00 Date: 2017-07-27 Ontario Court of Justice
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: Her Majesty the Queen Ex. Rel The Regional Municipality of York Respondent
— And —
Maryam Ghelichkhani Appellant
Before: Justice Peter D. Tetley
Reasons for Judgment released on: July 27, 2017
Counsel:
- M. McDonnell, for the respondent
- C. Kinapen, for the appellant
On appeal from: An acquittal by Justice of the Peace M. Coopersmith on January 21, 2015
TETLEY J.:
Background
[1] The appellant, Maryam Ghelichkhani, was convicted of a charge of failing to yield the right of way on entering a highway from a private road, contrary to s. 139(1) of the Highway Traffic Act. The charge arose from a Highway Traffic Act investigation that occurred on May 9, 2014 in the Town of Richmond Hill.
[2] The appellant was not present at her trial. A plea of not guilty was entered on her behalf by her legal representative. Following a trial, in which two witnesses were called by the prosecution, Paul LaFrance, and Police Constable Patrick Anderson of the York Regional Police Service, the appellant was convicted of the referenced offence.
[3] Paul LaFrance testified that he was operating his pick-up truck northbound on Yonge Street just south of Elgin Mills in the Town of Richmond Hill on May 9, 2014. As he prepared to make a left turn to proceed westbound on Elgin Mills, his motor vehicle was struck in the rear quarter panel by the motor vehicle operated by the appellant. At the time, Mr. LaFrance testified that there were three or four cars to his right as he waited to turn left onto westbound Elgin Mills.
[4] The force of the collision occasioned extensive damage to the front-end of the appellant's car with the collision occurring in close proximity to the entranceway to a Travel Lodge hotel that was located on the east side of Yonge Street south of Elgin Mills Road.
[5] At page 7 of the trial transcript, at lines 4 through 10, the following questions and answers are referenced during Mr. LaFrance's examination in-chief:
Q. I want you to tell the court, at the very first time you saw this other vehicle and you are aware of it, where is it located? The very first time you are aware of it.
A. It was to my right-hand side just in front of me and it was coming into my lane.
Q. Did you see where that vehicle came from?
A. I think there is a Travel Lodge hotel there.
[6] At the time of the collision, Mr. LaFrance testified that he was travelling at a rate of speed of approximately 25 kilometres an hour. He had not previously observed the automobile operated by the appellant until that automobile collided with his pick-up truck.
[7] Later, Mr. LaFrance and the appellant attended at the reporting centre of the York Regional Police Service in order to complete an accident report.
[8] As a consequence of information received during the reporting process, Police Constable Patrick Anderson concluded that grounds existed for the laying of the charge before the court. The factual basis relied upon by the investigating officer that resulted in the issuance of the related Provincial Offence Notice do not appear in the trial record. It is reasonable to infer that officers' interviews, with both Mr. LaFrance and the appellant, led to the disclosure of the facts relied on by the officer in laying the charge.
[9] No defence evidence was called and the trial record would suggest that the appellant was not present during the course of the trial.
[10] The accident report prepared by Police Constable Anderson was produced by the defence and reviewed by Mr. LaFrance during the course of his cross-examination. This document was not, however, filed as an exhibit at trial.
Reasons for Judgment
[11] Justice of the Peace Coopersmith's Reasons for Judgment are set out in pages 25 through 28 of the trial transcript. The presiding Justice of the Peace reviewed the applicable provision of the Highway Traffic Act, section 139(1). That subsection reads as follows:
139 (1) Every driver or street car operator entering a highway from a private road or driveway shall yield the right of way to all traffic approaching on the highway so closely that to enter would constitute an immediate hazard. R.S.O. 1990, c. H.8, s. 139 (1).
[12] Thereafter, the trial justice reviewed the evidence that had been adduced from both Paul LaFrance and Police Constable Anderson. The resulting findings of fact are summarized as follows:
Mr. LaFrance was operating his motor vehicle northbound on Yonge Street just south of Elgin Mills in the Town of Richmond Hill;
In preparation for a left-hand turn onto westbound Elgin Mills, Mr. LaFrance drove his vehicle into the left-hand turn lane when he was struck by a motor vehicle that "...was coming from the Travel Lodge...";
The force of the collision occasioned damage to the rear passenger door and rear quarter panel of Mr. LaFrance's motor vehicle and extensive damage to the front end of the motor vehicle operated by the appellant;
The appellant operated the motor vehicle that struck Mr. LaFrance's car;
"...Mr. LaFrance, under oath, said the defendant's vehicle was coming from (the) Travel Lodge. The second time period was when the vehicle struck him. It seemed to come out of nowhere to strike him. Those are two different things. Coming out of the driveway and striking him are two difference instances in this sequence of events that happened. He was not struck when she came out of the Travel Lodge but as she moved over to get into his lane".
[13] Section 139(1) was concluded to have been violated by the fact that the appellant was found to have failed to yield to all traffic approaching on the highway as her motor vehicle crossed the highway from the Travel Lodge driveway to the left-turn lane where the collision with Mr. LaFrance's pick-up truck took place.
The Grounds of Appeal
The appellant submits that the Justice of the Peace erred in concluding that the offence alleged had been established in the absence of an evidentiary foundation for the conclusion that the appellant's motor vehicle entered the highway from a private driveway.
Analysis
Section 139(1) – Failure to Yield from a Private Road or Driveway
[14] The consideration of this ground of appeal requires a review of the charging section itself and the evidence presented at the appellant's trial.
[15] Section 139(1) of the Highway Traffic Act imposes several obligations on a driver of a motor vehicle that is about to enter a highway from a private road or driveway. Those obligations include the following:
A duty to yield the right of way to all approaching traffic on the highway;
A duty not to enter the highway in close proximity to oncoming traffic in circumstances where "immediate (safety) hazard" would result.
[16] This section and its equivalent predecessors have been discussed in several reported authorities. In Butilier v. Atton, 50 M.P.R. 131 (N.S.C.A.), the obligation imposed on the merging motorist was concluded to be a high one with the operator of the vehicle entering a highway from a private road or driveway to refrain from entering the highway until all vehicles have passed the point of entry.
[17] In R. v. Langille, (1980), 7 M.V.R. 294 (N.B.C.A.), the court defined the scope of the duty to yield the right of way to apply to the driver whose motor vehicle was about to enter or cross the highway from a driveway or a private road. The lawful obligation to yield the right of way was concluded not to continue once the driver had lawfully entered onto that roadway.
The Point of Entry
[18] A review of the trial record supports the appellant's contention that there is some uncertainty with respect to exactly where the appellant's motor vehicle was coming from at the time of the collision with the vehicle operated by Mr. LaFrance.
[19] Mr. LaFrance testified that he was travelling north in the left lane of Yonge Street south of Elgin Mills and had just turned into the left-hand turn lane, passing three or four cars in the process. Mr. LaFrance stated that: "...I guess she was merging between a couple of the stopped vehicles...".
[20] At page 6 of the transcript, Mr. LaFrance stated the following: "Yeah, another vehicle, I'm sorry. Was – she was kind of – she kind of come through a couple of the cars that were facing northward and she came into the turning lane and she sideswiped me".
[21] When asked when he had become initially aware of the appellant's motor vehicle, Mr. LaFrance stated at page 7 of the transcript: "It was to my right-hand side just in front of me and it was coming into my lane". During this exchange, Mr. LaFrance testified that he thought the appellant's motor vehicle had come from the direction of the Travel Lodge. When asked by the prosecutor "Did you see where the vehicle came from?", Mr. LaFrance replied "I think there is a Travel Lodge hotel there".
[22] While subject to cross-examination, Mr. LaFrance acknowledged that Yonge Street, in the vicinity of the collision, features a turning lane that can be utilized by both north and southbound traffic.
The Standard of Review
[23] In accordance with section 136 of the Ontario Provincial Offences Act, R.S.O. 1990 c. P 33, as amended, an appeal under the Provincial Offences Act shall be conducted by means of a review consisting of an examination of the trial transcript. In that review, deference is to be accorded to the findings of fact made by the trial justice unless it is established that a palpable and overriding error has been made; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (SCC), at para. 10.
[24] A standard of "correctness" applies to the interpretation of the law as it relates to the facts in issue. The reviewing court is required to correct any errors that arise with respect to the interpretation or application of the law; Housen v. Nikolaisen, supra, at para. 8.
[25] Applying these legal directives to the facts in issue in this appeal and the legal considerations arising from the determination of the scope of the alleged offence itself, I conclude that no palpable or overriding error has been established to have been made by the Justice of the Peace in finding the appellant guilty of the offence alleged.
[26] While I may not have reached the same conclusion on the facts presented at the appellant's trial that is not the test to be applied. The trial record is concluded to provide a sufficient factual basis for the Justice of the Peace to conclude that the motor vehicle collision was occasioned as a consequence of the failure of the appellant's motor vehicle to yield to oncoming traffic as represented by the motor vehicle operated by Mr. LaFrance.
[27] While the Justice of the Peace appears to have erred in definitively concluding that the trial testimony offered by Mr. LaFrance confirmed that the appellant's motor vehicle had entered from the Travel Lodge parking lot onto northbound Yonge Street, that conclusion is also determined to be a reasonable and available inference on consideration of the trial record and the other findings of fact referenced in the Reasons for Judgment.
[28] The trial record would support the conclusion that the Lexus automobile being operated by the appellant entered the highway from the Travel Lodge parking lot, where it proceeded across two lanes of northbound Yonge Street and into the left-hand turning lane striking Mr. LaFrance's motor vehicle. In reaching this conclusion, the trial justice appears to have relied on the testimony offered by Mr. LaFrance where he stated, "I passed about three cars, four cars, and then I guess she was merging between a couple of the stopped vehicles...". Mr. LaFrance also stated at page 6 of the transcript as follows: "She kind of come through a couple of cars that were facing northward and she came into the turning lane and she sideswiped me".
[29] As noted previously, the first time Mr. LaFrance became aware of the motor vehicle operated by the appellant, was when that vehicle was observed to be "...coming into my lane" from the vicinity of the Travel Lodge hotel. Given the un-contradicted account offered by Mr. LaFrance, I conclude, based on the foregoing evidence, that it was not unreasonable for the Justice of the Peace to conclude that the point of entry of the appellant's motor vehicle was the parking lot of the Travel Lodge hotel. The relative positioning of the appellant's motor vehicle at the point of collision with Mr. LaFrance's pick-up truck, the fact the appellant's vehicle had not been noticed by Mr. LaFrance at any point prior to the collision and the close proximity of the point of contact to the Travel Lodge driveway, lend further support to this factual inference in the absence of any evidence to the contrary.
[30] Based on these factual considerations, I conclude it was also open to the Justice of the Peace to conclude that a violation of s. 139(1) of the Highway Traffic Act had been established on the basis of proof beyond a reasonable doubt as the appellant might be reasonably concluded to still be in the process of entering the highway when the collision occurred. It was open to the Justice of the Peace to conclude that the appellant had not met the lawful obligation imposed on her to yield to oncoming traffic and refrain from entering the highway until it was safe to do so by allowing all the vehicles travelling on the highway in the immediate vicinity to pass by.
[31] As noted in Langille, supra, the duty to yield the right of way in these circumstances are somewhat limited in scope. The obligation to yield only applies to the driver of a motor vehicle that is about to enter or cross the highway and does not extend to a driver who is crossing a highway having legally entered that highway. It is acknowledged that the safe entry onto the highway might have already occurred by the time the collision took place. I conclude, however, that it was open to the Justice of the Peace, on an objective view of the factual circumstances under consideration here, to conclude that the appellant was still in the process of entering the highway directly from the driveway when the collision occurred, and that she had failed to yield to oncoming traffic while engaged in that process.
Disposition
[32] For the foregoing reasons, I conclude that the conviction should be upheld. Accordingly, the appeal from conviction is noted as dismissed.
Signed: "Justice Peter D. Tetley"
Released: July 27, 2017