Court File and Parties

Court File No.: Halton - Burlington Certificate of Offence no. 6398446A

Date: 2012-06-15

Ontario Court of Justice

Between:

Her Majesty The Queen

— AND —

Stephen Emery

Before: Justice of the Peace Kenneth W. Dechert

Heard: November 24th, 2011 and February 28th, 2012

Reasons for Judgment Released: June 15th, 2012

Provincial Offences Court – Burlington, Ontario

Counsel:

• J. Stewart for the prosecution
• The defendant Stephen Emery on his own behalf

Statutes, Regulations and Rules Cited

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, ss. 1(1) and para. 136(1)(a).

Cases Cited

• Regina v. Brennan, (1989), 52 C.C.C. (3d) 366 (Ont. C.A.)
• Regina v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (S.C.C.)
• Regina v. Hull, [2006] O.J. No. 3177 (Ont. C.A.)
• Regina v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.)
• Regina v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; (1978), 40 C.C.C. (2d) 353 (S.C.C.)
• Regina v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 (S.C.C.)
• Regina v. Walker, (1979), 48 C.C.C. (2d) 126 (Ont. Co.Ct.)
• Regina v. W.(D.), [1991] 1 S.C.R. 742 (S.C.C.)

Judgment

K.W. DECHERT, J.P. (orally):

INTRODUCTION

[1] Under Certificate of Offence no. 6398446A, the defendant Stephen Emery stands charged that he on the 9th day of February, 2011 at 9:12 a.m., at Leighland Avenue and Kent Avenue, in the Town of Oakville, did commit the offence of disobey stop sign – fail to stop, contrary to the Highway Traffic Act, section 136(1)(a).

[2] On November 24th, 2011, the defendant entered a plea of not guilty to the subject charge and a trial of the matter then ensued before me. The proceeding was adjourned to February 28th, 2012 for trial continuation, when the proceeding was completed. It was then adjourned until June 15th, 2012, for my judgment.

[3] The prosecution was represented by Ms. J. Stewart. The defendant was self-represented.

THE LAW

(i) Relevant Statutory Provisions

[4] The defendant is charged with the offence of disobey stop sign – fail to stop, contrary to paragraph 136(1)(a) of the Highway Traffic Act, R.S.O. 1990, c. H-8, as amended, hereinafter referred to as "the Act". That paragraph reads as follows:

Every driver or street car operator approaching a stop sign at an intersection,

(a) shall stop his or her vehicle or street car at a marked stop line or, if none, then immediately before entering the nearest crosswalk or, if none, then immediately before entering the intersection.

[5] The following words, which are relevant to the interpretation of the subject offence, are defined in subsection 1(1) of the Act, as follows:

'crosswalk' means,

(a) that part of a highway at an intersection that is included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the roadway, or

(b) any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface;

'driver' means a person who drives a vehicle on a highway;

'highway' includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;

'intersection' means the area embraced within the prolongation or connection of the lateral curb lines or, if none, then of the lateral boundary lines of two or more highways that join one another at an angle, whether or not one highway crosses the other;

'vehicle' includes a motor vehicle, trailer, traction engine, farm tractor, road-building machine, bicycle and any vehicle drawn, propelled or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle or a street car.

(ii) Relevant Common Law

[6] In his decision in Regina v. Walker (1979), 48 C.C.C. (2d) 126 (Ont. Co. Ct.), Zalev J. determined that the offence of failing to stop for a stop sign, contrary to section 88(a) of the Highway Traffic Act, R.S.O. 1970, c. 202 (the predecessor to paragraph 136(1)(a) of the Act) was an absolute liability offence. In his decision in Regina v. Brennan (1989), 52 C.C.C. (3d) 366 (Ont. C.A.), Catzman J.A. stated that he "was inclined to agree" with the ruling made by Mr. Justice Zalev in Regina v. Walker, supra. that the offence of failing to stop at a stop sign fell into the category of absolute liability.

[7] In light of the fact that the subject offence is one of absolute liability, the prosecutor need only prove that the defendant committed the actus reus of the offence. The actus reus must, however, be established to the standard of proof beyond a reasonable doubt.

[8] Once the actus reus has been proved to the requisite standard, the mental element of negligence is automatically imported into the offence. The prosecution is not required to prove that the defendant intended to commit the prohibited act.

[9] The defence of due diligence, which is available for offences of strict liability, is not available for offences of absolute liability. As stated by Dickson J. in Regina v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; (1978), 40 C.C.C. (2d) 353 (S.C.C.), offences of absolute liability are those offences "where it is not open to the accused to exculpate himself by showing that he was free from fault".

THE EVIDENCE

[10] During the trial of this proceeding, the prosecution tendered evidence through the testimony of Police Officer Ross Amore. The defendant tendered evidence through the testimony of Ms. Yu Qian and his own testimony. Prior to the commencement of the evidentiary phase of the trial, I ordered that all witnesses for either the prosecution or the defence, with the exception of the defendant, be excluded from the courtroom until such time as they were called to testify in this proceeding.

(i) The Testimony of Police Officer Ross Amore

[11] During his testimony of November 24th, 2011, Police Officer Amore stated that he was a member of the Halton Regional Police Service and had been so employed since April 2007. He testified that he was familiar with the subject proceeding and had made notes pertaining to his investigation of the alleged offence. The officer advised that the notes were made by him immediately after the offence in black ink, and that he had not made any changes, deletions or alterations to the notes since that time. He went on to advise that he had an independent recollection of the matter before the court, but sought leave of the court to use his notes to refresh his memory of the alleged offence. In light of the officer's testimony in this regard, I granted him leave to make reference to his investigative notes in this proceeding for purposes of refreshing his existing memory of the relevant events during the course of his testimony.

[12] Officer Amore testified that on February 9th, 2011, he was assigned to "uniform patrol" in the Town of Oakville. He stated that on that date, at approximately 9:08 a.m., he "began proactive traffic enforcement" at Leighland Avenue and Kent Avenue, in the Town of Oakville, such that he was "specifically targeting motor vehicles that were not stopping for the stop sign".

[13] In describing the intersection of Leighland Avenue and Kent Avenue at the relevant time, the officer stated that Leighland Avenue was a "two-lane" undivided roadway, which ran in an east/west direction and that it intersected with Kent Avenue, which ran in a north/south direction. He noted that traffic at the said intersection was controlled by four stop signs, one for each direction of travel.

[14] In making specific reference to the stop signs governing traffic on Leighland Avenue at the subject intersection, Officer Amore testified that there was a stop sign on the corner of Leighland Avenue facing westbound traffic and a stop sign on the said corner "for eastbound traffic". He stated that both stop signs were clearly visible and unobstructed. Based on the officer's description of the subject intersection and the said stop signs, I am able to reasonably infer that the stop sign governing the flow of westbound traffic on Leighland Avenue was located on the north-east corner of the intersection and that the stop sign governing the flow of eastbound traffic on the said highway was located on the south-west corner of the intersection. The officer did not provide an estimate of the distance between the location of the stop signs and the respective easterly or westerly boundaries of the subject intersection.

[15] In describing the "road markings" relative to the flow of eastbound traffic on Leighland Avenue approaching the subject intersection, the police officer noted the existence of a "solid white line across the roadway which was located right next to the stop sign". He referred to this line as "the white stopping line". He went on to state that two smaller, "less thick", white lines for pedestrian crossing were situated to the east of the said white stopping line.

[16] Officer Amore testified that the weather on February 9th, 2011 was "clear, sunny with dry roads". He stated that in the course of undertaking his traffic enforcement activities at the intersection of Leighland Avenue and Kent Avenue he parked his police cruiser at a location on Kent Avenue, approximately three to four car-lengths north of the intersection and facing south, such that he had a "clear, unobstructed view of the intersection". The officer advised that he was able to see activity on Leighland Avenue, distant approximately three car-lengths to both the east and west of the said intersection. He did not indicate which side of Kent Avenue he was parked on (i.e. the east or the west side) at the relevant time.

[17] The officer testified that at approximately 9:15 a.m. on the said date, he "observed a motor vehicle eastbound on Leighland Avenue". He went on to state that he "observed this motor vehicle enter the intersection at Leighland Avenue and Kent Avenue at approximately 15 kilometres per hour, not stopping for the stop sign, and the motor vehicle's wheels were constantly in motion".

[18] Officer Amore testified that upon making these observations, he "initiated a stop" of the said motor vehicle, which he described as a green-coloured, 2003 Honda Element, four door model, by activating his emergency lights. He stated that upon stopping the vehicle he found it to have two occupants. He advised that the driver of the vehicle identified himself as Stephen Emery, by means of a valid Ontario driver's licence with a digitized photograph on it. He indicated that he was, at that time, satisfied that he had properly identified the driver, noting that the defendant before the court was the driver.

[19] The officer stated that "at no time during this occurrence" did he ever lose sight of the motor vehicle. He advised that upon stopping the motor vehicle and determining the identity of its driver, he issued a provincial offence notice to the driver for "disobeying a stop sign, specifically failing to stop".

[20] The officer testified that he did not make note of the speed limit on Leighland Avenue approaching the subject intersection, however, he stated that he "suspected" it to be 50 kilometres per hour. He advised that when he made observations of the vehicle being driven by the defendant, it was travelling at a rate of speed of 15 kilometres per hour.

[21] In response to questions posed of him by the prosecutor relative to his observations, Officer Amore testified that the road markings were clearly visible at the material time. When he was asked as to whether there were any other vehicles within the intersection at the time that he was making observations of Mr. Emery and his vehicle, he replied, "at the time that his vehicle – no, there were no other vehicles in the intersection at the time of the offence". He went on to state that there was no pedestrian traffic in the intersection at the time.

[22] Officer Amore testified that he made his observations of the subject vehicle through the front windshield of his police vehicle. When he was asked what portion of the defendant's vehicle he was able to see as it approached him, the officer replied, "the entire vehicle, from back to front – from front bumper to rear bumper", noting, however, that these observations were made of the driver's side of the vehicle. In making reference to the officer's comments relative to the wheels of the defendant's vehicle, the prosecutor asked the officer what wheels he was referring to. In response to this query, Officer Amore stated "the front wheels that's – and the rear wheels that support the vehicle that are on the roadway".

[23] Officer Amore testified that from his vantage point on Kent Avenue, he was "absolutely" able to see the stop signs for both east and west traffic on Leighland Avenue. The prosecutor then engaged in the following question and answer exchange with the officer:

Q: And from that vantage point then, officer, what would you indicate the speed of the defendant's vehicle was through that observation? What I'm getting at is did it remain consistent at the 15 or did you observe any slowing of the vehicle?

A: I did observe slowing of the vehicle, yes. He did slow as he approached the intersection.

Q: And just to clarify then, is the 15 kilometres the slowing speed or is that the speed when you first observed him?

A: That would have been the slowing speed as he entered – as he entered into the intersection, he had slowed to approximately 15 kilometres per hour, not coming to a complete stop.

[24] During cross-examination, the defendant asked Officer Amore a number of questions relative to the location where he was "pulled over" after the time of the alleged offence. In this regard the officer acknowledged that he did not activate his emergency lights on his police cruiser to stop the defendant until the defendant had reached the vicinity of Oakville Place mall, a distance of approximately 600 to 800 metres east of the subject intersection.

[25] The officer's response in this regard, triggered the following question and answer exchange:

Q (the Defendant): The exact distance is about one kilometre. I've checked it from Oakville Place to Kent – Kent to Oakville Place. Considering that, why would it take you so long from when this happened to actually turn your lights on to indicate – like, what would be a reasoning to wait and drive a kilometre and then suddenly turn your lights on?

A (Officer Amore): Leighland Avenue to the east and to the west is a single – has a single lane for eastbound traffic and westbound traffic. Approximately 800 metres to the east, it widens to two lanes, so for both my safety and for the safety of the public, I initiate traffic stops not necessarily at the location of the offence but where it's safe for both me to be on the roadway and at the same time not to obstruct, obstruct traffic. … For me to initiate a stop at the spot of the offence would require eastbound traffic to cross into the westbound traffic lane. So at any given time, knowing the area as well as I do, I know that I initiate the stop where it's safe for both the general public as well for me.

Q (the Defendant): Would you say there is any other safe places between Kent and Trafalgar and Leighland?

A (Officer Amore): At the time of the offence that's where I determine to be a safe spot. I determine where the safe – the safest spot is.

Q (the Defendant): So is there any other safe places between Kent, Leighland intersection and Trafalgar/Leighland intersection – in between that kilometre is there any other safe places that could be a place to pull somebody over?

A (Officer Amore): No.

[26] The defendant completed his cross-examination by asking the officer a series of questions pertaining to his testimony-in-chief relative to the absence of other vehicles in the intersection at the relevant time. In that regard, the defendant asked the officer if he was absolutely sure that there were no vehicles either in front or behind. He responded to this query by stating that there were no vehicles in front of the defendant because the defendant's vehicle was the one that he observed. He remarked that he could not recall if there were any vehicles behind the defendant's vehicle at the material time.

[27] The officer's response in this regard triggered the following question and answer exchange:

Q (the Defendant): And then you began to follow the vehicle down Leighland…

A (Officer Amore): Your vehicle…

Q (the Defendant): …for a kilometre and then decided to put your lights on and pull it over.

A (Officer Amore): Yes.

Q (the Defendant): Right by the bus stop you're saying?

A (Officer Amore): Approximately there, where the – there are – where Leighland splits into two lanes as you come – as you're going eastbound, and I believe that's where the bus – the, the bus shelter is there.

Q (the Defendant): So there is no people around Leighland and Kent intersection?

A (Officer Amore): Leighland and Kent intersection? None that I recall.

Q (the Defendant): No cars around there?

A (Officer Amore): Were there cars in and around the intersection? I'm, I'm – there could have been but at the time of – I was focusing on your vehicle…

Q (the Defendant): What do you mean by there could have been?

A (Officer Amore): I don't recall if there were other vehicles. I wasn't – my intention, as I was travelling eastbound…

Q (the Defendant): Was there any vehicles in front of my vehicle or behind my vehicle?

A (Officer Amore): No, there were no – at the time of the, of the offence I was focused on your vehicle. So there's no vehicle in front of you when you went through that intersection.

Q (the Defendant): And none behind.

A (Officer Amore): Well, behind would have been me.

Q (the Defendant): And how closely… How closely behind me were you driving behind my vehicle when you turned your lights on?

A (Officer Amore): I don't recall.

Q (the Defendant): And was there any time when you almost ran into the back of my vehicle?

A (Officer Amore): No.

Q (the Defendant): No time at all.

A (Officer Amore): No.

Q (the Defendant): Okay, and so its correct that there was no people, no vehicles around Kent and Leighland, and yet we drove all the way towards Trafalgar where there's a bus terminal, where's there's people waiting to get a bus and you chose that – it's a safe place to pull me over.

A (Officer Amore): No. My answer to you at the time was when you went through the intersection, you were the only – there was no other vehicle in front of you. I was focused on your vehicle. If there were vehicles travelling eastbound on Leighland, I would not have been paying attention to them. I was paying attention to your vehicle. If there were pedestrians on the side – on the sidewalk – no, let me finish – if there were pedestrians on the sidewalk as we approached the bus shelter, I would not have been paying attention to them, I would have been focused on your vehicle.

[28] Following the completion of the testimony of Police Officer Amore on November 24th, 2011, the subject trial was adjourned to February 28th, 2012, for continuation. On that date, I received evidence tendered on behalf of the defendant, through the testimony of Ms. Yu Qian and through the defendant's testimony.

(ii) The Testimony of Ms. Yu Qian

[29] In response to questions asked by the defendant, Ms. Qian proffered her testimony-in-chief in this proceeding as follows:

Q: So I just wanted to ask you about – on the 24th, of November, we had proceedings here asking about the incident when we were pulled over and given the stop sign violation. Could you tell us whether I stopped or if I didn't stop?

A: Yes, you did. You did stop.

Q: And could you tell us how far we were from that stop sign when we were pulled over by the police officer?

A: It's quite far. I think its several streets over, about like one kilometre, I guess.

Q: Can you mention any thing that was around that area where we stopped? Would you consider it to be a safe area to pull someone over?

A: You mean eventually?

Q: Yes.

A: It's, yes, I would say it.

Q: And how close would you say it was to the e bus terminals?

A: Oh, from where we pulled off, it's really close. It's just – it's almost in the bus stop.

Q: And the other question I have is the other vehicles, when we pulled up to the corner of Leighland and Kent at the stop sign, were there any other vehicles around the area in front or behind?

A: In front of, yes, definitely there is several vehicles, behind I didn't notice.

[30] During cross-examination, Ms. Qian testified that at the material time, she was occupying the seat beside the driver's seat of the subject motor vehicle. When she was asked when she was "first made aware of the officer's presence", Ms. Qian responded as follows:

It's when we – suddenly he started to pull over because we are not supposed to go that area. So I asked him, "What's wrong?", and so Stephen said, "We got pulled over". That's when I first noticed.

(iii) The Testimony of the Defendant

[31] In response to my query as to what he would like to tell the Court with respect to this matter, the defendant testified as follows:

On the day in question, I approached the stop sign at Kent and Leighland. There was two cars in front of me. They were sort of going in like an accordion – the two cars in front of me both stopped properly. I stopped properly myself. I was aware that there was a cop in the vicinity. I could see the cop there. It's often a place where police monitor for stops and it's a common place where I drive by each day. We carried on from that stop sign along Leighland. We passed I think two streets and then you come to Oakville Place, right in front of the bus terminal. There was a whole – I'd say about 25 people waiting for the bus outside the Oakville Place. The cop – the car, not directly in front of me but the one in front of that decided to all of a sudden turn into Oakville Place with no indication. The car in front of me almost hit that car. I almost hit the car in front of me. And as I was stopping I looked through the rear view mirror and saw Officer Ross Amore. He almost came and hit the back of my car. I could see him saying what looked like a swear word in the rear view mirror and at that point his lights turned on and he pulled me and Qian Yu over. I had asked him what the reason for being pulled over was and he said that about a stop sign much further back which is at least a kilometre away from this. He said that I had not stopped at that. At which point I told them that I had and at that point he became rather, I would say, rude in his language towards me. …

[32] During cross-examination, the defendant testified that the officer who stopped him was the same officer which he saw at the intersection of Kent Avenue and Leighland Avenue, noting that "he was within my sight the whole time, so there is no way they could have changed". When he was asked how many times he would pass through the intersection of Kent Avenue and Leighland Avenue, the defendant stated that on a weekly basis he would "come and stop at that intersection two to three times a day".

[33] In reference to his testimony that the vehicles ahead of him "stopped properly", the prosecutor asked the defendant him how he was able to ascertain that the lead vehicle had stopped, from his position. The defendant responded to that question, as follows:

They were clearly within my sight and when one stops in front, the two vehicles behind have to stop too.

[34] Furthermore, in response to the prosecutor's question as to whether he and the other two vehicles in front of him moved together to the point where he was pulled over by the officer, the defendant testified that he and the two vehicles travelled along Leighland Avenue until they arrived in front of the Oakville Place mall, when the first of the three vehicles "came to an abrupt stop to turn into Oakville Place".

THE ISSUES

[35] The ultimate issue in this proceeding is whether the prosecution has proven the subject charge, beyond a reasonable doubt.

[36] The sub-issue of the identity of the defendant is not in dispute. The remaining sub-issue is whether the prosecution has established all of the elements of the actus reus of the subject offence, to the standard of proof beyond a reasonable doubt. An assessment of the credibility of the various witnesses in this proceeding is an important factor in the determination of this sub-issue.

ANALYSIS

[37] Based on the undisputed evidence before me, I am of the view that the following elements of the actus reus of the subject offence have been established beyond a reasonable doubt:

(i) that on the 9th day of February, 2011 at approximately 9:15 a.m., the defendant was driving a motor vehicle in an easterly direction on Leighland Avenue, a highway within the meaning of the Act, approaching its intersection with Kent Avenue, in the Town of Oakville;

(ii) that in addition to approaching the said intersection at the material time, the defendant was approaching a stop sign facing eastbound traffic on Leighland Avenue, which was located on the south-west corner of the intersection;

(iii) that a clearly visible, solid white stop line, which was located right next to the said stop sign, was marked across the eastbound lane of Leighland Avenue.

[38] There is, however, conflicting evidence before me as to the issue of whether the defendant disobeyed the direction of the subject stop sign, by failing to bring his motor vehicle to a complete stop at the marked stop line related to the stop sign. Officer Amore testified that the defendant entered the subject intersection at a speed of approximately 15 kilometres per hour, without stopping for the stop sign facing him, noting that the wheels of the defendant's motor vehicle were "constantly in motion". On the other hand the defendant testified that upon approaching the subject stop sign at the material time, he stopped his motor vehicle properly before proceeding through the intersection.

[39] This is a case where credibility is important. Accordingly, I must undertake an assessment of the credibility of the witnesses in this proceeding.

[40] When I embark on such an assessment, I must remind myself that the concept of reasonable doubt applies to the assessment. Furthermore, I must remind myself that the determination of the defendant's guilt must not be based upon a credibility contest between the prosecution and defence witnesses. This proposition of law was established by the Supreme Court of Canada in the case of Regina v. W.(D.), [1991] 1 S.C.R. 742 (S.C.C.). In his decision in this case, written on behalf of the majority of the Court, Cory J. explained how the issue of credibility should be assessed in the context of a criminal trial, at paragraphs 26, 27 and 28 therein, as follows:

It is clear that the trial judge erred in his recharge. It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. …

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[41] In their decision in Regina v. Hull, [2006] O.J. No. 3177 (Ont. C.A.) at paragraph 5 thereof, Simmons, Armstrong and Rouleau JJ.A. made the following comments pertaining to the application of the principles enunciated in Regina v. W.(D.), supra.:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of the Crown witnesses to that of the defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in doing so comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[42] In her decision in Regina v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (S.C.C.) written on behalf of a unanimous panel of the Supreme Court of Canada, at paragraph 23 thereof, Charron J. interpreted the formula enunciated in W.(D.), supra., as follows:

The majority [referring to the majority decision of the Quebec Court of Appeal under appeal to the Supreme Court of Canada] stated that there is nothing sacrosanct about the formula set out in W.(D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.(D.); it will depend on the context (para. 112). What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. …

[43] In the Supreme Court of Canada decision in Regina v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.), Cory J. fashioned a "model of instruction", which could be used by either a jury or a judge sitting without a jury. In that "suggested" jury charge, Mr. Justice Cory defined the expression "beyond a reasonable doubt", as follows:

The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.

What does the expression "beyond a reasonable doubt" mean?

The term "beyond a reasonable doubt" has been used for a very long time and is part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something needs to be said regarding its meaning.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather it is based on reason and common sense. It is logically derived from the evidence or lack of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

[44] In his judgment written on behalf of the majority of the Supreme Court of Canada, in Regina v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 (S.C.C.), Iacobucci J. made the following comments in paragraph 242 thereof, pertaining to the definition of the phrase "beyond a reasonable doubt":

In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to an absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, a p. 177:

If standards of proof were marked on a measure, proof 'beyond reasonable doubt' would lie much closer to 'absolute certainty' than to 'a balance of probabilities'. Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, in my view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of no significance, but the idea itself must be conveyed. …

[45] In my view, Police Officer Amore presented his evidence in this proceeding in a clear and concise fashion. His testimony, which was largely internally consistent, was based upon his observations made from his stationary position just north of and proximate to the Leighland Avenue/Kent Avenue intersection. He did not appear to embellish or overstate his evidence relative to those observations. Furthermore, during the course of his testimony, he was aided in his memory by his investigative notes of the relevant events, which were made contemporaneously with the time of the alleged incident. Overall, the officer presented as a credible witness.

[46] In reaching my conclusion pertaining to the credibility of the police officer, I was particularly impressed with the way he responded to the difficult questions posed to him by the defendant relative to the location of the traffic stop. In that regard, Officer Amore readily admitted that he effected the subject traffic stop at a location, which he estimated as being 600 to 800 metres east of the Leighland/Kent intersection. Moreover, at one point during cross-examination he agreed with the defendant's suggestion that the location of the traffic stop near a bus shelter in front of Oakville Place mall could have been a distance of 1 kilometre from the said intersection.

[47] In response to questions posed by the defendant as to why he chose to pull the defendant over near Oakville Place mall, rather than at a location closer to the intersection where the alleged incident took place, Officer Amore stated, without hesitation or defensiveness that the chosen location was the safest place east of the Leighland/Kent intersection to conduct the traffic stop. In this regard, the officer noted that Leighland Avenue split into two eastbound lanes near the location of the bus shelter situated approximately 800 metres east of the subject intersection. He felt that the existence of a second lane would allow him to pull the defendant's vehicle over in that right lane without impeding the flow of eastbound traffic in the left lane, whereas a stop in the single eastbound lane would cause other eastbound traffic to have to enter the single westbound lane to move around the stopped vehicles.

[48] While it is certainly unusual for an officer to effect a traffic stop of an offending vehicle following a stop sign violation at a location distant approximately 600 to 1,000 metres away from the scene of the infraction, Officer Amore provided understandable reasons for his actions in the subject case. His explanation for the unusual circumstances surrounding the traffic stop is, in my view, reasonable. The circumstances of the subject traffic stop do not serve to diminish the genuineness of the officer's testimony pertaining to the actions of the defendant's vehicle as it entered the Leighland/Kent intersection.

[49] On the other hand, even though I have found Officer Amore's testimony to be genuine and therefore credible, there are certain aspects of his testimony, which affect its reliability.

[50] It is noted that the officer presented equivocal testimony pertaining to the issue of either the presence or absence of vehicles travelling in front of the defendant's vehicle at the material time. In that regard during his examination–in-chief, the officer stated that at the time of the offence there were no vehicles other than that driven by the defendant in the subject intersection.

[51] Furthermore, during cross-examination, in response to the defendant's query as to whether he was absolutely sure that there were no vehicles either in front of or behind him at the relevant time, the officer replied: "There was no vehicles in front of you because yours was the vehicle…that I observed". However, at a later point in cross-examination, the officer was asked if there were any cars around the subject intersection. He responded to this inquiry by stating that there "could have been, but at the time I was focusing on your vehicle". When the defendant asked the officer what he meant when he stated that "there could have been", he then stated he couldn't recall "if there were other vehicles".

[52] The defendant reiterated his question of Officer Amore, asking him whether there were any vehicles in front of his vehicle or behind his vehicle. The officer responded to this question by indicating that at the time of the offence, he was focussed on the defendant's vehicle and that there was no vehicle in front of the defendant when he "went through that intersection".

[53] In my view, the officer's equivocation on the issue of the presence or absence of other vehicles in or around the subject intersection at the time of the alleged offence tends to weaken his testimony pertaining to the defendant's driving conduct in approaching and entering the subject intersection. Additionally, the officer's testimony lacks precision in respect of the issue of the location of the marked stop line for eastbound traffic at the subject intersection and as to the actions of the defendant's vehicle as it approached the said line.

[54] The evidence pertaining to this element of the actus reus of the offence is important as an individual may not be found guilty of the offence of disobey stop sign-fail to stop under paragraph 136(1)(a) of the Act, unless the prosecution proves, beyond a reasonable doubt, that the driver of the subject vehicle failed to bring his/her vehicle to a complete stop "at a marked stop line or, if none, then immediately before entering the nearest crosswalk or, if none, then immediately before entering the intersection".

[55] In this proceeding, Officer Amore testified that a white stop line was marked across the eastbound lane of Leighland Avenue at a point west of its intersection with Kent Avenue. He went on to testify that this stopping line was located right next to the stop sign facing eastbound traffic and that there was a pedestrian crosswalk located to the east of the stop line. However, he failed to provide any detail as to the estimated distance between the relevant stop sign and both the pedestrian crosswalk and the western boundary of the subject intersection or as to the estimated distance between the marked stop line and the stop sign, the pedestrian crosswalk and the western boundary of the intersection.

[56] Furthermore Officer Amore testified that at the relevant time he observed the defendant's vehicle "eastbound on Leighland Avenue" and that it entered the intersection at Leighland and Kent Avenue at approximately 15 kilometres per hour, not stopping for the stop sign governing eastbound traffic.

[57] After carefully reviewing the officer's evidence, I note that there is no indication that at the material time, he observed the defendant's vehicle travelling eastbound on Leighland Avenue at a location west of the marked stop line and then proceed to cross over the stop line without first stopping at the line.

[58] The officer's testimony that the defendant failed to stop for the subject stop sign seemed to be based on his observations that the defendant entered the subject intersection, east of the location of the marked stop line at a rate of speed of approximately 15 kilometres per hour, without coming to a complete stop before entering the intersection. There is a paucity of prosecution evidence as to the actions of the defendant's vehicle as it approached the marked stop line at the intersection, from the west, at the material time.

[59] For the said reasons, I am of the view that while the evidence of Officer Amore may be considered credible in the sense that it represented a genuine presentation, from his perspective, of the circumstances of the alleged offence, it lacks significant reliability. I have reached this conclusion given the officer's equivocal responses to questions pertaining to the presence or absence of vehicles travelling in front of the defendant's vehicle at the material time and in light of the lack of detail proffered by the officer pertaining to the actions of the defendant's vehicle relative to the marked stop line at the subject intersection.

[60] In the course of his sworn testimony during this proceeding, the defendant steadfastly asserted that at the material time, he stopped his vehicle in accordance with the direction of the stop sign which he was approaching at the intersection of Leighland Avenue and Kent Avenue. He testified from his memory of the relevant incident, in a clear and concise fashion. His testimony was internally consistent and was not shaken as a result of cross-examination. He presented as a credible witness.

[61] There is no question that the defendant's brief account of the subject incident lacks significant detail. On the other hand, his version of the events considered in the context of the totality of the evidence is in my view, sufficiently plausible to raise a reasonable doubt as to his guilt on the subject charge.

[62] In reviewing the defendant's evidence, it is noted that the defendant acknowledged that on the day in question he was driving a motor vehicle on Leighland Avenue, approaching the stop sign at the intersection of Leighland Avenue and Kent Avenue. He did not dispute the evidence of Officer Amore that he was travelling eastbound on Leighland Avenue at the time.

[63] The defendant stated that as he was approaching the stop sign at the subject intersection, there were two cars in front of him, that were "sort of going in like an accordion" and that both of the said cars "stopped properly". He then stated that he "stopped properly", noting that he and the two vehicles then "carried on from that stop sign" along Leighland Avenue.

[64] During cross-examination, the defendant stated that he was able to ascertain that the first of the two vehicles in front of him had stopped properly as they were clearly within his sight and based upon his deduction that when one vehicle stops in front, "the two vehicles behind have to stop too".

[65] In attempting to interpret the defendant's testimony that the two cars in front of him were going in like an accordion, it is reasonable to infer that these vehicles were stopping for the stop sign, one at a time, and then slowing moving forward into the intersection. The defendant stated that he took the same action approaching the stop sign and stopping "properly", before moving into the intersection.

[66] The defendant's exculpatory evidence was corroborated by the testimony of Ms. Yu Qian. Ms. Qian corroborated the defendant's assertion that he stopped for the relevant stop sign at the subject intersection. Furthermore, the witness corroborated the defendant's testimony that at the time that he approached the subject stop sign, there were several vehicles travelling in an easterly direction on Leighland Avenue in front of him.

[67] During his testimony the defendant failed to elaborate on his actions in "stopping properly". While it is reasonable to infer from the totality of the defendant's testimony that the defendant believed that he brought his vehicle to a complete stop at the location of the stop sign, he did not indicate where he brought his vehicle to a stop relative to the marked stop line on the western side of the subject intersection. Moreover, the defendant did not estimate the duration of his stop at that time.

[68] In light of the paucity of detail relative to the defendant's assertion that he brought his vehicle to a stop, I find that I am not able to firmly believe his exculpatory evidence. However, when I consider his exculpatory evidence in the context of the evidence as a whole, including the testimony of Ms. Qian supporting his version of the events and the equivocal and imprecise aspects of Officer Amore's testimony identified above, I find myself left in a state of reasonable doubt as to the defendant's guilt in this proceeding.

[69] Based on the second prong of the W.(D.) principles, as interpreted by Charron J. in Regina v. Dinardo, supra., I find that the prosecution has failed to meet its onus of proving all of the essential elements of the actus reus of the subject offence, beyond a reasonable doubt. In reaching this conclusion, I have determined that the totality of the evidence in this proceeding has failed to establish beyond a reasonable doubt, that at the material time and place the defendant failed to bring his motor vehicle to a complete stop in the manner prescribed by paragraph 136(1)(a) of the Act.

[70] My conclusion in this regard is specifically related to the lack of reliable evidence relative to the allegation that the defendant failed to stop his vehicle at the marked stop line for eastbound traffic at the subject intersection. While Officer Amore's testimony is replete with references to his observations of the defendant entering the subject intersection at a rate of speed of 15 kilometres per hour, it fails to describe the actions of the defendant's vehicle as it approached and crossed the subject marked stop line.

[71] The thrust of the prosecution evidence in this proceeding is that the defendant failed to stop his vehicle in accordance with the direction of the stop sign because he entered the subject intersection without coming to a complete stop. The defendant denies this allegation and his denial is corroborated by the testimony of Ms. Qian.

[72] There is, however, no evidence before me as to the actions of the defendant as it approached the marked stop line and as to whether or not the vehicle stopped at the stop line prior to crossing it and subsequently entering into the intersection. It is the absence of this important piece of evidence, weighed in the context of the defendant's exculpatory evidence, which has caused me to be left in a state of reasonable doubt as to the defendant's guilt on the subject charge.

[73] After weighing the defendant's exculpatory evidence in the context of the totality of the evidence, I am not sure of the defendant's guilt with respect to the subject offence. The prosecution has therefore failed to satisfy me of the defendant's guilt in this matter, beyond a reasonable doubt. Accordingly, I must acquit him of the charge.

THE DECISION

[74] The defendant is found not guilty of the subject offence of disobey stop sign - fail to stop, contrary to paragraph 136(1)(a) of the Act.

Released: June 15th, 2012

Signed: "Justice of the Peace Kenneth W. Dechert"