Her Majesty the Queen v. Jenese Anderson

Ontario Court of Justice Toronto, Ontario

Prosecution: N. Mazrooyi Defence Counsel: A. Shah

Before: J. Opalinski J.P.

Heard: November 30, 2012 Delivered: December 18, 2012

Charges

The defendant is charged with the offence of pedestrian fail to use crosswalk contrary to section 144(22) of the Highway Traffic Act, R.S.O. 1990, c. H.8.

Section 144(22) of the Highway Traffic Act provides that:

Where portions of a roadway are marked for pedestrian use, no pedestrian shall cross the roadway except within a portion so marked.

Issue

The issue before the court is whether or not the defendant or for that matter any citizen can cross a street at mid-block or anywhere else on the street other than at a crosswalk.

Argument for the Prosecution

The prosecution submits that the offence is an absolute liability offence and that the elements of the offence have been made out beyond a reasonable doubt. The evidence shows that the defendant crossed Eglinton Avenue West in the City of Toronto at a place where there was no designated crosswalk in contravention of the Highway Traffic Act.

Argument of Defence Counsel

Counsel for the defendant has made an argument that the due care rests at the feet of the driver and as such it is legal to cross a street at mid-block anywhere in the City of Toronto.

Evidence for the Prosecution

The court heard evidence from two prosecution witnesses, Kirk Stratkos and Officer Carlos Pareja.

Evidence of Kirk Stratkos

The evidence of Mr. Kirk Stratkos may be summarized as follows:

(a) On December 21, 2011 at approximately 6:10 pm, Mr. Stratkos was travelling eastbound on Eglinton Avenue West in the City of Toronto. He had just stopped for a red light at Kane Avenue.

(b) Mr. Stratkos could not remember if there were any markings on the road at Kane Avenue crossing Eglinton Avenue West but indicated that as there were stop lights, it was a logical place for a pedestrian crosswalk.

(c) When the light changed to green Mr. Stratkos proceeded to move but stopped as he noticed that the defendant was in the middle of the road crossing the street in front of him. She was 20 meters in front of him when he first noticed her.

(d) He slowed down and stopped so as not to hit the defendant.

(e) A vehicle in the curb lane did not know why Mr. Stratkos had stopped. The defendant had just entered the curb lane when she was struck by the driver of the vehicle in the curb lane.

(f) At no time did Mr. Stratkos give the defendant any indication that she could cross and she was already in the roadway as he approached her location. She was on her own.

(g) The roads were damp and it was cold and dark.

(h) The collision took place in the curb lane approximately 50 meters from the crosswalk at Eglinton Avenue West and Kane Avenue.

(i) The vehicle in the curb lane was travelling at approximately 40 kilometers an hour and did not take any evasive action.

(j) Mr. Stratkos could not indicate where the next crosswalk east of the location where the accident occurred was located.

Evidence of Officer Carlos Pareja

The second witness for the prosecution, Officer Carlos Pareja's evidence may be summarized as follows:

(a) Officer Pareja attended and investigated the accident scene. He spoke with both Mr. Stratkos and Mr. Branao Costa, the individual who struck the defendant.

(b) The vehicle involved in the collision had its front licence plate cover broken.

(c) Officer Pareja was able to identify the defendant before the court.

(d) Nowhere in the near vicinity of the accident was there a crosswalk but there was a marked crosswalk 50 meters west of the location where the accident occurred at Eglinton Avenue West and Richardson Avenue. This is a T-intersection with Richardson Avenue running north from Eglinton Avenue West.

Evidence for the Defence

The defendant chose to call no evidence.

The Law

The defendant is charged with the offence of pedestrian fail to use crosswalk pursuant to section 144(22) of the Highway Traffic Act.

The question that the court has to look at is whether or not this section applies only to pedestrians who when using a crosswalk fail to be within the markings of the crosswalk. Or is this the section that may be commonly referred to as applying to 'jaywalkers', that is those who take their safety into their own hands by crossing at any point in the street rather than at appropriately marked crosswalks no matter how far apart and few between these crosswalks may be.

Justice of the Peace Quan in R. v. Rados examined in length the application of section 144(22) of the Highway Traffic Act and its applicability to a given fact situation. In R. v. Rados, the court had to contend with whether or not the place where the defendant was struck by a driver was indeed a crosswalk or crossover. In our case there clearly was no crosswalk or crossover at the place where the defendant chose to cross Eglinton Avenue West.

However, the question that begs being asked and answered is can or should a pedestrian be allowed to cross a roadway in a place other than at a crosswalk or crossover and what should a driver expect from a pedestrian who does so?

The answer to this question is best summarized by MacDonnell J., in R. v. Globocki, where he indicated that 'jaywalking' is a fairly common phenomenon where pedestrians cross roadways at places other than at designated crosswalks or crossovers. His Honour stated as follows:

In relation to the failure to react to the pedestrian when she entered the roadway, it is fair to observe that the phenomenon of "jaywalking" is fairly common. It is a simple fact of life, observable to anyone who cares to look, that pedestrians often cross multi-lane roadways at places other than designated crossovers, picking their way through the approaching traffic. It is a further fact, within ordinary experience, that a driver on a multi-lane roadway who sees a pedestrian enter a lane other than the driver's lane does not automatically take evasive action, come to a stop, or even slow down. A driver is entitled to make reasonable assumptions about the behaviour expected of other users of the road, and it is not unreasonable to assume that a pedestrian crossing the roadway at a time when vehicles are approaching will not simply walk in front of oncoming vehicles. Therefore, the mere fact that this defendant failed to take action as the pedestrian crossed the curb lane does not establish a departure from the standard of care expected in the circumstances.

In R. v. Rados, the court at page 55 pointed out that s. 10 of Metropolitan Toronto Bylaw 32-92 requires pedestrians to 'yield the right-of-way to all vehicles and streetcars on the roadway when crossing a street unless they do such crossing at a pedestrian crossover, at a location with operating traffic lights, or where traffic is controlled by a police officer and not at any other location in the City of Toronto.

The court went on to conclude that the provisions of this particular municipal bylaw does not give a pedestrian a right to cross a roadway anywhere they want but rather it 'imposes on the pedestrian a legal duty to yield the right-of-way to vehicles on the roadway'.

Nor, as a result of section 144(22) of the Highway Traffic Act, does there exist a common law right for pedestrians to cross the road at anyplace. What this section imposes is a mandate that the only place where pedestrians can legally cross a street is at a marked crosswalk.

The court in R. v. Rados found that pursuant to section 144(22), a pedestrian has no legal right to cross a roadway mid-block unless he or she uses a crosswalk.

It is also incumbent upon the court to determine what category this charge falls into. R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 sets out the three categories of offences. Dickson J stated:

1. "Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence;

2. "Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability to proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault."

This court must ask the question: is the offence that the defendant is charged with a mens rea, strict liability or absolute liability offence? As Justice Dickson points out in R. v. Sault Ste. Marie, for an offence to be categorized as a mens rea offence it should have contained words that purport some mental element such as 'willfully,' 'with intent', 'knowingly' or 'intentionally'. These are typically criminal offences where as public welfare offences are prima facie strict liability offences.

In the case at bar, this court finds that the offence of 'pedestrian fail to use walkway' is neither a mens rea offence nor a strict liability offence but rather an absolute liability offence where it is not open to the defendant to exculpate herself by showing that she was free of fault.

Analysis

The defendant is charged pursuant to section 144(22) of the Highway Traffic Act. This offence is an absolute liability offence and the Prosecution must prove beyond a reasonable doubt that the actus reus of the offence has been made out. The Prosecution was able to prove that the Defendant was the pedestrian who did cross in the middle of Eglinton Avenue West in the City of Toronto on December 21st, 2011 at approximately 6:10 pm.

The defendant had crossed across three lanes of traffic and had just entered into the fourth or curb lane for eastbound Eglinton Avenue traffic when struck by a vehicle travelling eastbound in the curb lane.

Both Officer Pareja and Mr. Stratkos have indicated that there was a pedestrian crosswalk approximately 50 meters to the west of the location where the accident occurred. Officer Pareja stated that this was at Eglinton Avenue West and Richardson Avenue while Mr. Stratkos stated that the intersection was at Eglinton Avenue West and Kane Avenue. What is essential is that there is no dispute or evidence to contradict the point that there was a pedestrian crosswalk approximately 50 meters to the west of the location where the accident occurred and the defendant did not use it to cross the street.

The essence of the defence argument is that it is legal in the City of Toronto for a pedestrian to cross a street mid-block so long as they are not crossing adjacent to a marked crosswalk and that they yield to traffic. Nothing should relieve the driver of a vehicle from the obligation of taking all due care and control to avoid an accident.

Even if the court were to accept the defence's argument, the evidence of both prosecution witnesses suggests that the defendant did cross the street mid-block where there was no marked crosswalk and failed to yield to traffic. Mr. Stratkos stopped for the defendant because he was able to see her while Mr. Costa the driver of the vehicle in the curb lane did not see her and struck her.

If we look at the defendant's own argument, pedestrians should only be able to cross a street mid-block if they yield to traffic. The defendant did not do so. Drivers of vehicles should, when travelling on a road where there are no crosswalks, lights or other pedestrian crossovers, expect to be able to do so without the fear of a pedestrian walking in front of the path of their vehicle. If a pedestrian chooses to cross a roadway mid-block then they must do so exercising caution and due care and yield the right of way to vehicles unless they cross at a designated crosswalk.

There was a crosswalk where it would have been safe to cross Eglinton Avenue West and that crosswalk was only 50 meters to the west of the location of the accident.

This is an absolute liability offence and the actus reus of the offence has been made out.

Disposition

For the reasons set out above, the court finds that the prosecution has met its onus of proving beyond a reasonable doubt that the defendant failed to use a crosswalk on December 21, 2011. The court finds the defendant guilty of contravening section 144(22) of the Highway Traffic Act.

Dated the 18th day of December, 2012, at the City of Toronto

Joanna Opalinski J.P.