Court File and Parties

Court File No.: Halton - Burlington Certificate of Offence no. 1260-9506128B

Date: 2013-05-23

Ontario Court of Justice

Between:

Her Majesty The Queen

— AND —

Demetrios Kalantzis

Before: Justice of the Peace Kenneth W. Dechert

Heard on: December 6, 2012 and January 31, 2013

Reasons for Judgment released on: May 23, 2013

Provincial Offences Court – Burlington, Ontario

Counsel:

• J. Stewart, for the prosecution
• The defendant Demetrios Kalantzis on his own behalf

Statutes, Regulations and Rules Cited

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

Cases Cited

• Regina v. Bishop, [2008] O.J. No. 5501 (Ont. C.J.)
• 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. W.(D.), [1991] 1 S.C.R. 742 (S.C.C.)

Publications Cited

• Canadian Oxford Dictionary, Second Edition (2004, Oxford University Press)

Judgment

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

INTRODUCTION

[1] Under Certificate of Offence no. 1260-9506128B, the defendant Demetrios Kalantzis stands charged that he on the 4th day of June, 2012 at Felhaber Court and Northridge Trail, 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] The defendant was arraigned on the subject charge on December 6, 2012, at which time he entered a plea of not guilty. The trial of the charge then ensued before me, but was not completed. The trial was then adjourned to January 31, 2013 for continuation at which time it was completed. The proceeding was then further adjourned to May 23, 2013, for my judgment.

[3] The prosecution, the City of Burlington, 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 the provisions of 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] Certain terms which are relevant to the subject offence are defined in subsection 1(1) of the Act as follows:

'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 for 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 prosecution need only prove that the defendant committed the actus reus of the offence, beyond a reasonable doubt. Once the actus reus has been established to the requisite standard, the mental element of the offence, that of negligence, is automatically imported into the offence. The prosecution is not required to prove that the defendant intended to commit the prohibited act.

[8] The defence of due diligence, which is available to a defendant 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; 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

[9] On December 6, 2012, the prosecution proffered evidence in this proceeding, through the testimony of Police Officer Goran Zivkovic. The defendant testified in this proceeding on January 31, 2013.

(i) The Testimony of Police Officer Goran Zivkovic

[10] Police Officer Zivkovic testified that he was a member of the Halton Regional Police Service and that he had been a member of the Service since December 2011. He advised that he was familiar with the charge before the Court against the defendant and that he had made hand-written notes pertaining to the matter. He testified that he made these notes during and shortly after the time of the alleged offence and that he had not made any changes, deletions or alterations to the notes since the time that he made them. The officer further testified that he had an independent recollection of the matter, but sought permission to use his notes to refresh his memory of the subject incident. He was then granted permission to make reference to his said notes for purposes of refreshing his existing memory under the doctrine of present memory revived.

[11] The officer testified that on Monday, June 4th, 2012, he was working the day shift from 6:00 a.m. to 6:00 p.m. out of 20 Division of the Halton Regional Police Service in the Town of Oakville. He advised that on that date he was operating a marked police cruiser and that at approximately 7:50 a.m he attended at the intersection of Felhaber Court and Northridge Trail in the Town of Oakville, in order to undertake "proactive" stop sign enforcement.

[12] In describing the subject intersection, Officer Zivkovic advised that it was a "four-way stop intersection in a residential area". He advised that Felhaber Court was a north/south artery with one lane running in each direction. He went on to advise that Northridge Trail ran in an east/west direction with one "through" lane in each direction. He noted that in addition to the through lanes on Northridge Trail at the subject intersection, there were two turn lanes on the said highway, one running eastbound and one running westbound.

[13] Officer Zivkovic testified that stop signs were posted at each corner of the four way stop intersection "by regulation"; one stop sign governing each of the four directions of travel. He advised that the stop signs were octagonal in shape "with a red background with white lettering indicating the word 'STOP'". Furthermore, he stated that there were marked stop lines relative to the stop signs located at each of the four corners of the intersection, as well as pedestrian crossing lines, which were marked "a couple of feet in front of the marked stop lines".

[14] In describing the location of the marked stop line relative to the stop sign governing the flow of westbound traffic on Northridge Trail at the intersection, the officer stated that the stop line was "aligned with the stop sign". On the other hand, Officer Zivkovic advised that the stop sign governing the flow of eastbound traffic on Northridge Trail at the intersection was erected "approximately three to four feet ahead" of the location of the corresponding marked stop line.

[15] During his testimony-in-chief, Officer Zivkovic stated that at the relevant time he was monitoring east and westbound traffic on Northridge Trail at the said intersection from within his marked police cruiser. In this regard, he stated that his cruiser "was situated approximately ten metres north of Northridge Trail facing southbound", however at this point in his testimony he did not state the name of the street or roadway upon which his cruiser was situated. During cross-examination he advised that at the material time, his vehicle was situated on Felhaber Court adjacent to a dwelling municipally known as 2579 Felhaber Court, as he had recorded in his investigative notes.

[16] Officer Zivkovic testified that from his vantage point north of the intersection of Northridge Trail and Felhaber Court at the relevant time, he had a "clear and unobstructed view of approximately 5 to 10 metres east and 5 to 10 metres west of the marked stop lines" located on the east and westbound lanes of Northridge Trail. He described the weather conditions at the relevant time as "minimal clouds with no precipitation". He noted that the temperature was 13 degrees, that there was "no fog" and that the roads were dry and clear.

[17] Officer Zivkovic testified that at approximately 8:06 a.m. on the subject date, he had occasion to observe a motor vehicle, which he described as a black-coloured BMW - two door model, travelling in a westerly direction in the "through lane" of Northridge Trail approaching its intersection with Felhaber Court. The officer stated that he observed the motor vehicle pass the marked stop line relative to the stop sign governing the flow of westbound traffic on Northridge Trail at the intersection (located at the northeast corner), without making any "attempt to fully stop at the marked stop line". In making this observation, the officer estimated that the said vehicle travelled "through the stop sign" at a rate of speed of "approximately five to seven kilometres per hour" and that during this time the wheels of the vehicle "were in continuous motion". He advised that he made these observations through the front window of his police vehicle.

[18] Officer Zivkovic testified that upon making the said observations, he activated his roof lights and followed the subject vehicle in a westerly direction on Northridge Trail, without losing sight of it. The officer noted that at this time there was a vehicle travelling westbound behind the subject BMW vehicle and immediately in front of his vehicle. He advised that he observed the BMW make a right-hand turn off of Northridge Trail and proceed in a northerly direction on Palmerston Road. He stated that he then followed the said vehicle onto Palmerston Road, where he stopped the vehicle.

[19] Officer Zivkovic testified that that upon stopping the subject BMW motor vehicle, he approached the vehicle and requested the production of documents from its driver. The officer stated that the driver then identified himself by the production of a "valid digitalized "G" class licence" in the name of Demetrios Kalantzis. The officer advised that he was satisfied with the identification provided. He indicated that he then issued a provincial offence notice to Mr. Kalantzis for the offence of disobey stop sign – fail to stop, contrary to section 136(1)(a) of the Act.

[20] In response to further questions posed to him by the prosecutor, Officer Zivkovic testified that the stop signs and the stop lines at the subject intersection were visible at the material time. In this regard, the officer advised that prior to making his observations relative to the subject offence, he inspected the intersection to "ensure there were no obstructions and the roads were able to be driven on and the vehicles were able to stop safely".

[21] In completing his testimony-in-chief, Officer Zivkovic responded to a series of questions posed to him by the prosecutor, as follows:

Q (the prosecutor): And you've made reference to observations of the wheels of Mr. Kalantzis' vehicle.

A (Officer Zivkovic): That's correct.

Q: From your vantage point what wheels could you see?

A: I was able to see all – well, I was able to see the front passenger and rear passenger side wheels.

Q: You also indicated that there was no attempt to fully stop?

A: That's correct.

Q: Can you explain what you meant by fully stop?

A: The vehicle did slow down, however, did not come to a full stop and proceeded through as I said at an approximate speed of five to seven kilometres.

Q: In what direction did it continue?

A: It continued to travel westbound and made a right turn to travel northbound.

Q: Did you observe the vehicle to stop at any point past the stop line?

A: No, I did not.

Q: At the time you were making observations was there any pedestrian traffic within the intersection?

A: At the time I made the observation there were no pedestrians, and traffic was light.

Q: Officer, you did make reference to another vehicle?

A: That's correct.

Q: Where was that vehicle relative to your observations of Mr. Kalantzis' vehicle?

A: The vehicle was situated behind Mr. Kalantzis' vehicle and it was in front of my vehicle when I proceeded to travel westbound. I let the vehicle pass because it wouldn't be safe for me to proceed.

[22] During cross-examination, Officer Zivkovic acknowledged that at the material time, when he observed the defendant's vehicle approaching the stop sign on the northeast corner of the subject intersection, his police cruiser was parked on Felhaber Court near a dwelling municipally known as 2579 Felhaber Court. The officer's acknowledgment in this regard prompted the following question and answer exchange:

Q (the defendant): Okay, and in your notes and based on your comments, you indicated that you were ten metres away from the intersection?

A (Police Officer Zivkovic): Approximately.

Q: Okay, could that have been greater than 50 metres in approximate distance between the intersection and the location that you were in?

A: It could. However, I didn't measure. I just approximated a distance of approximately ten metres.

[23] In response to the defendant's further question as to whether, based upon his notes, he was certain "that 2579 Felhaber Court facing south [was] roughly ten metres in distance from Northridge intersection", Officer Zivkovic stated as follows:

It was an approximation and my vehicle was situated directly across the detached home. And it definitely was not past the detached home. And it wasn't in front of the detached home. It was across. And depending on where you start measuring it could have varied in metres. But I did give an approximation of approximately ten metres and that's what I believed it to be.

[24] It is important to note that at no time during his testimony, did the officer advise as whether his police vehicle was parked on the east or west side of Felhaber Court as he was monitoring the subject intersection at the relevant time.

[25] The defendant questioned the officer if he recalled seeing vehicles parked "in the driveway in front of the stop sign" located on the northeast corner of the subject intersection, to which the officer responded that he had a clear and unobstructed view of the said corner, and that he could not recall if there were vehicles parked in that driveway.

[26] The defendant then asked Officer Zivkovic as to why, based upon his observations, he concluded that the vehicle had not attempted to stop, to which the officer responded as follows:

Well, I mentioned did not attempt to fully stop. And I view in a sense that I look at the wheels and I look when the wheels pass the marked stop line and if they are in continuous motion, which they were, your vehicle did slow down however it did not come to a full stop.

[27] The defendant then began to cross-examine Officer Zivkovic as to what the defendant perceived as being a contradiction between a statement in the officer's notes and what the officer had stated both in examination-in-chief and in cross-examination, relative to the actions of his vehicle as it approached the subject intersection while travelling in a westerly direction on Northridge Trail. In this regard, the defendant and the officer engaged in the following question and answer exchange:

Q: So, in your notes you indicate that the vehicle had not fully stopped at the intersection. In your testimony you indicated that there was no attempt to stop at the intersection.

A: To fully stop.

Q: To stop at the intersection.

A: To fully stop. There might have been an attempt to slow down, but I said no attempt to fully stop.

Q: So, no attempt to stop…

A: Fully.

Q: …not fully stopping are two different things. And my point being is from your perspective and what you perceived based upon where you were situated at that point in time you saw the vehicle not fully stopping but then you proceeded to state that there was no attempt to stop.

A: There was no attempt to fully stop.

[28] Officer Zivkovic reiterated his testimony-in-chief that at the material time traffic on the vicinity of the subject intersection "was light". When asked if, at the material time, there was a vehicle which had stopped in front of the defendant's vehicle, Officer Zivkovic responded, "not to my knowledge, no".

[29] The officer acknowledged the presence of a vehicle behind the defendant's vehicle in the vicinity of the stop sign at the northeast corner of the subject intersection however he could not recall whether this vehicle had stopped behind the defendant's vehicle, stating that he was observing the defendant's vehicle at the relevant time "not to lose sight of it". The defendant pursued this line of questioning relative to the issue of other vehicles either in front of or behind his vehicle, in part, as follows:

Q: Is it possible that there was a vehicle that had stopped in front of my vehicle at that point in time?

A: I don't know.

Q: How do you not know if a vehicle had stopped just before my vehicle at that stop sign, followed by another vehicle after that?

A: Because I truly do not remember a vehicle in front of your vehicle. …

Q: Can you realistically proceed with 7 kilometres – 5 to 7 kilometres per hour when you have made a full stop behind another vehicle at which point in time the other vehicle proceeds to move forward?

A: I do not remember any vehicle in front of your vehicle.

Q: You indicated that there was a vehicle behind my vehicle?

A: That's correct.

Q: So you also indicated that at that point in time that my vehicle had made a right hand turn on Palmerston?

A: That's correct.

[30] During cross-examination, Officer Zivkovic agreed with the defendant's proposition that following the alleged infraction, he pulled over the defendant in his vehicle on Palmerston Road just south of its intersection with Agram Drive. When the defendant questioned the officer as to why his notes indicated that the defendant turned right off of Northridge Trail to proceed in a northerly direction on "Palmers", the officer stated that he misspelled the name of the street in his notes, and that it should have been referred to as Palmerston Road. The defendant then asked Officer Zivkovic if it was possible that he may have "identified the wrong vehicle", to which the officer replied, "No, it is not possible. I never lost sight of your vehicle".

[31] The defendant then asked the officer why it took him so long to pull over the defendant's vehicle following the alleged traffic infraction. Officer Zivkovic responded to this query as follows:

Well, like I said there was a vehicle in front and I proceeded when it was safe to do so, letting that vehicle pass. And my lights were activated throughout. And the vehicle did not move to the right. And I observed your vehicle proceed north on Palmerston Road. And that's when I was able to finally catch up to your vehicle and pull you over safely.

[32] In completing his cross-examination of the officer, the defendant asked the officer to explain why the ticket, which was issued in respect of the subject offence, indicated that the offence took place at 8:08 a.m., whereas the officer's notes indicated that he observed the defendant's vehicle failing to stop for the subject stop sign at 8:06 a.m. In this regard, Officer Zivkovic testified that the police computer system has a different time than his watch, and that accordingly one of the times might have referenced the time shown on the police computer, while the other time might have referenced the time shown on his watch. In concluding his testimony relative to the discrepancy in respect of the time of the alleged offence, the officer stated as follows:

Well, the time frame is two minutes, it's not like I wrote 30 minutes discrepancy. And like I said my watch is difficult to tell by the minute and I try and approximate and therefore I say at approximately this time. That's why I said at approximately 8:06 a.m. I observed your vehicle. Which means it could have been 8:07 a.m. and when the offence happened it could have been 8:08.

[33] In re-examination, Officer Zivkovic testified that he did not ever see the subject BMW motor vehicle stop in the vicinity of the intersection of Felhaber Court and Northridge Trail.

(ii) The Testimony of the Defendant

[34] As stated above, the defendant testified in this proceeding on January 31, 2013.

[35] At the outset of his testimony-in-chief, the defendant sought leave of the Court to make reference to a sketch of the intersection of Felhaber Court and Northridge Trail, which he made during the evening of June 4, 2012, for purposes of refreshing his memory of the events.

[36] In this regard, the defendant testified that immediately after he received the ticket for the subject offence, he returned to the intersection where the traffic infraction had allegedly taken place. He advised that at that time he drew a rough sketch of the intersection and of the landmarks and objects in the vicinity of the location of the alleged offence, on a "napkin-like" piece of paper which was available to him in his motor vehicle at the time. The defendant testified that he re-prepared the sketch from the "rough sketch" drawn on the paper napkin, that evening.

[37] The defendant stated that he had a recollection of the events relative to the subject charge independent of the said sketch, but that he wished to make reference to the sketch while testifying to refresh his existing memory of the relevant events in the context of the subject intersection and its immediate surroundings.

[38] After permitting the prosecutor an opportunity to question the defendant with respect to his use of the subject sketch, and after receiving legal submissions from both parties pertaining to this preliminary issue, I granted the defendant permission to make reference to the hand-made sketch of the subject intersection during his testimony, as an aid to his existing memory of the relevant events.

[39] During his testimony-in-chief, the defendant stated that on June 4, 2012, at approximately 8:00 a.m., he was travelling in a westerly direction on Northridge Trail. He advised that at that time there was a westbound vehicle travelling directly in front of him and that there were a number of westbound vehicles behind him. He then modified his testimony slightly by indicating that there were a number of westbound vehicles in front of him at the time. He noted that as it was a weekday it was a busy time to travel on Northridge Trail.

[40] The defendant testified that at the subject time as he was travelling in the westbound lane of Northridge Trail, he approached "the stop sign at the corner of Northridge and Felhaber", on the north side of the street. He stated that as he approached the location of the stop sign, the vehicle in front of him was stopped at the stop sign. He advised that he then stopped his vehicle about 1 to 2 metres behind the stopped vehicle in front of him. He went on to state that when the vehicle in front of him travelled past the stop sign, he then "stopped behind the white line of the crossroad". He indicated that at this time, he observed the presence of a number of westbound vehicles directly behind him at the intersection through his rear-view mirror.

[41] The defendant then testified as follows:

…At that point in time I had looked left and right and on my right hand side there was on the north east corner there is, there is a there is a home there at that point in time there were four – it's a four-person car driveway, there were four cars on that driveway and there was no sidewalk. There is absolutely no sidewalk on that side. And those vehicles obstructed my vision because I did not see the unmarked police officer vehicle which was situated on the west north side approximately 50 metres from the stop sign and the intersection. As I proceeded past the white crossroad line through the intersection, I then saw the unmarked police vehicle on my right-hand side. The vehicle was on a stand – was at a standstill.

[42] The defendant testified that after proceeding through the intersection of Northridge Trail and Felhaber Court he continued to travel in a westerly direction on Northridge Trail until he reached Palmerston Road, when he made a right-hand turn onto that highway. The defendant advised that at that time he checked his rear-view mirror and noticed the existence of a number of vehicles behind him "none of which was a police vehicle". The defendant stated that once he had turned onto Palmerston Road, he continued in a northerly direction on that street until he reached the stop sign at the corner of Palmerston Road and Agram Drive, where he was "pulled over" by an unmarked police vehicle. He indicated that the intersection of Palmerston Road and Agram Drive was distant approximately 1 kilometre from the intersection of Northridge Trail and Felhaber Court.

[43] The defendant testified that once he was stopped at the corner of Palmerston Road and Agram Drive, he spoke with the police officer who had directed him to pull over, and eventually received a ticket for the subject offence. The defendant stated that following his interaction with the police officer he returned to the intersection of Northridge Trail and Felhaber Court to prepare a sketch of the intersection as it existed at that time.

[44] The defendant testified that upon returning to the said intersection, he noticed that a driveway "which did not have a sidewalk connected to it" was situated at the "east north corner" of the intersection. He stated that he noticed the presence of vehicles parked in the driveway at that time. Furthermore, the defendant stated that at the relevant time, he noted the existence of "trees and other landscaping" in the area of the northeast corner of the subject intersection. He submitted that the presence of the vehicles in the driveway and the identified vegetation may have served to obstruct the officer's view of the stop line governing the flow of westbound traffic on Northridge Trail at the material time.

[45] During cross-examination, the defendant advised that he would pass through the intersection of Northridge Trail and Felhaber Court on a daily basis. In response to the prosecutor's query as to whether there are crosswalks at this location, the defendant initially stated that there are crosswalks for all four directions at the intersection. He subsequently indicated that he wasn't sure if any crosswalks were marked at the intersection. In this regard, he noted that pedestrians would cross the respective highways at the intersection by walking past the marked stop lines.

[46] In response to the prosecutor's questions pertaining to the dwelling and driveway located at the northeast corner of the subject intersection, the defendant advised that there was a side yard attached to the dwelling which was approximately 6 metres in length. He went on to state that a sidewalk running parallel to Northridge Trail was located adjacent to the side-yard of the dwelling and that it continued in a westerly direction to the point where it intersected with Felhaber Court.

[47] In describing the driveway associated with the dwelling located at the northeast corner of the subject intersection, the defendant stated that it led out onto Felhaber Court and that there was no sidewalk which intersected the driveway so as to create a boulevard between the sidewalk and the easterly limit of Felhaber Court. In response to the prosecutor's question as to the "position" of the stop sign governing westbound traffic on Northridge Trail at the intersection, the defendant testified that the stop sign was located on the northeast corner of the intersection. He went on to state that the stop sign was located "right next" to the sidewalk on the north side of Northridge Trail, and was distant approximately 6 metres south of the driveway to the dwelling facing Felhaber Court. He noted that the area between the southerly limit of the driveway and the location of the subject stop sign comprised the side yard for the subject dwelling containing "landscaping" including trees.

[48] During cross-examination, the defendant stated that after the time of the alleged infraction he travelled for a period of time of approximately 3 minutes before he was pulled over by the police officer at the intersection of Palmerston Road and Agram Drive. Furthermore, he estimated that he was stopped by the police officer for a period of about 10 minutes before he received the ticket for the alleged offence.

[49] The defendant testified that shortly after receiving the ticket from the officer, he returned to the intersection of Northridge Trail and Felhaber Court to review the physical layout of the intersection. He advised that it likely would have taken him 5 minutes to travel back to the subject intersection. He therefore acknowledged the prosecutor's suggestion that he returned to the intersection approximately 15 to 17 minutes after the time of the alleged stop sign infraction.

[50] The defendant testified that the subject intersection looked exactly the same 15 to 17 minutes after the time of the infraction, as it did at the time of the infraction. In particular, the defendant stated that the cars that he saw in the driveway of the dwelling to the north of the subject stop sign were the same cars that he saw in the driveway when he passed through the intersection approximately 15 to 17 minutes earlier.

[51] The prosecutor's question as to how the defendant could be certain that the vehicles which he saw in the subject driveway some 15 to 17 minutes after the time of the alleged traffic infraction, were located in the subject driveway at the time of the infraction, prompted the following question and answer exchange between the prosecutor and the defendant:

A (the defendant): Because I had seen the vehicles there the initial – from the outset, the initial setting and when I had gone there post receiving the ticket.

Q (the prosecutor): Yes, I understand that afterwards you were…

A: So the vehicles did not change their position in any way post the incident, the alleged incident.

Q: But you were actually cognizant of the vehicles parked in a driveway on your initial approach?

A: Yes. What I had not done was pinpoint the vehicles as I have done here in the visual that I've got before me.

Q: And where were you positioned, relative to the intersection, when you first made observations of the police officer's vehicle?

A: I was travelling west through the intersection when I had seen the officer vehicle, the unmarked vehicle, parked further north on Felhaber.

Q: And my question is, how far, relative to the – your positioning in the intersection were you when you saw it?

A: It would have been in the mid-point of the intersection. I did…

A: So I – no – I was just going to comment further on the vehicle. I identified the vehicle in the mid area of the intersection. I did not see the vehicle prior to when I was stopped at the stop sign clearly because I was obstructed by the vehicles that were in the driveway next to the stop sign which would have clearly obstructed my vision at that time in addition would have more than likely obstructed the police officer's vision.

THE ISSUES

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

[53] 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 witnesses in this proceeding is an important factor in the determination of this sub-issue.

ANALYSIS

[54] 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 4th day of June, 2012, at approximately 8:06 a.m., the defendant was driving a vehicle, to wit: a BMW motor vehicle, in a westerly direction on Northridge Trail, approaching its intersection with Felhaber Court, in the Town of Oakville;

(ii) that as the defendant was approaching the said intersection, he was also approaching a stop sign, located on the northeast corner of the intersection which regulated the flow of westbound traffic on Northridge Trail at the said intersection;

(iii) that at the relevant time, a white-coloured stop line associated with and aligned with the stop sign governing westbound traffic on Northridge Trail at the said intersection, was marked across the westbound through lane of Northridge Trail;

(iv) that both Northridge Trail and Felhaber Court, in the Town of Oakville fall within the definition of "highway" under the Act.

[55] There is conflicting evidence before me as to the issue of whether, at the material time, the defendant disobeyed the stop sign posted at the northeast corner of the intersection of Northridge Trail and Felhaber Court, by failing to stop his vehicle at the stop line marked across the westbound through lane of Northridge Trail. Police Officer Zivkovic testified that the defendant failed to bring his vehicle to a full stop at the stop line. The defendant on the other hand, asserts that he complied with the direction of the stop sign by bringing the vehicle which he was driving at the material time, to a stop before proceeding through the intersection.

[56] This is a case where credibility is important. Accordingly, I must undertake an assessment of the credibility of the two witnesses in this proceeding. In doing so I must be sure to adhere to the principle that the legal burden of proof relative to the actus reus of the subject absolute liability offence, rests on the prosecution to the standard of proof beyond a reasonable doubt, and that this burden never shifts to the defendant.

[57] When I embark on an assessment of credibility, I must remind myself that the determination of the defendant's guilt must not be based on a simple 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 this decision at paragraphs 26, 27 and 28, Cory J., writing on behalf of the majority of the Court, explained how credibility should be assessed 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 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.

If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.

[58] In their decision in Regina v. Hull, [2006] O.J. No. 3177 (Ont. C.A.), Simmons, Armstrong and Rouleau JJ.A. rendered the following opinion as to the proper application of the W.(D.) principles:

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 Crown witnesses to that of 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.

[59] In her decision, written on behalf of a unanimous panel of the Supreme Court of Canada, in Regina v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (S.C.C.), Charron J. made the following comments pertaining to the W.(D.) instructions:

The majority [referring to the majority judgment of the Quebec Court of Appeal under appeal] 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. …

[60] In his decision in Regina v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.), at para. 39, Cory J. developed the following model of jury instruction, and in doing so defined the expression "beyond a reasonable doubt":

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 must 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 absence 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 of proof 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.

[61] In his decision in Regina v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 (S.C.C.) at para. 242, Iacobucci J. interpreted the model of jury instruction articulated by Cory J. in Regina v. Lifchus, supra, as follows:

In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to 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 a 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, at 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. …

[62] In his Provincial Offences Act appeal decision in Regina v. Bishop, [2008] O.J. No. 5501 (Ont. C.J.), D.A. Harris J. set aside the finding of guilt against the appellant for an offence of "disobeying a stop sign", contrary to section 136(1)(a) of the Highway Traffic Act, and ordered a new trial. In doing so the jurist determined that the trial Justice of the Peace erred by failing to apply the principles articulated in Regina v. W.(D.), supra, in arriving at her verdict.

[63] In describing the circumstances of the offence in Bishop, Mr. Justice Harris stated as follows:

Ontario Provincial Police Constable Barb Nakagawa testified for the prosecution at the trial. Mr. Bishop gave evidence in his own defence. They both agreed that Mr. Bishop was operating a motor vehicle on January 8, 2008, travelling eastbound on Main Street West, in Selkirk in Haldimand County, as alleged in the charge. …

Both witnesses agree that Mr. Bishop drove up to the stop sign at the intersection of Main Street and Erie Street. Mr. Bishop said that he stopped there before proceeding through the intersection. Provincial Constable Nakagawa said that he did not come to a complete stop…

[64] The jurist stated that in light of the evidence as set out above, the trial Justice of the Peace should have instructed herself in accordance with the principles articulated in Regina v. W.(D.), supra. In reviewing the brief reasons of the trial Justice of the Peace in this proceeding, Mr. Justice Harris noted that it did not appear that the Justice of the Peace applied the "process of analysis" set out in W.(D.). He noted that the trial Justice of the Peace did not say "that she rejected the evidence of Mr. Bishop" or that his evidence "did not leave her with a reasonable doubt as to his guilt".

[65] Furthermore, Mr. Justice Harris made the following comments as to why the trial jurist's reasons for judgment in this case made "meaningful appellate review impossible":

In her reasons for judgment, the Justice of the Peace says why she accepts the officer's evidence over that of Mr. Bishop, but that is not enough. She does not indicate that she rejected Mr. Bishop's evidence or that the evidence she did accept proved guilt beyond a reasonable doubt.

[66] In the case at bar, Police Officer Zivkovic presented his evidence pertaining to his observations of the actions of the vehicle being driven by the defendant at the material time, in a clear and detailed fashion. His memory of the relevant events pertaining to the subject charge was aided by his investigative notes which were made contemporaneously with the time of the subject incident. On the other hand, while the officer's account of the relevant events was largely internally consistent, his apparent vacillation on the issue of the location of his vantage point on Felhaber Court at the material time, had the effect of diminishing the reliability of his observations of the defendant's vehicle as it approached the stop sign and stop line at the northeast corner of the subject intersection.

[67] Officer Zivkovic presented as a credible witness in this proceeding however his surprising admission in cross-examination that, at the material time, his police cruiser could have been parked at a location on Felhaber Court, which was greater than 50 metres from the subject intersection, rather than from an approximate distance of 10 metres (as he stated in his testimony-in-chief) reduced the strength of his evidence. While the officer's "clear and unobstructed" observations of westbound traffic on Northridge Trail just east of the subject intersection, made from a vantage point approximately 10 metres north of the intersection, would constitute cogent evidence of the actions of such traffic, similar observations made from a distance of 50 metres would not, in my view, be equally convincing.

[68] Furthermore, as there is a significant difference between 10 and 50 metres, it is difficult to understand why the officer would have reported that his vantage point on Felhaber Court was located approximately ten metres from the subject intersection, when he knew that the distance could have been greater than 50 metres. While the officer exhibited candour in making the subject admission during cross-examination, it significantly reduced the force of his testimony relative to his assertion that the wheels of the defendant's vehicle were in continuous motion as it approached and passed over the stop line for westbound traffic on Northridge Trail.

[69] The defendant testified in this proceeding on his own behalf. He testified largely from his memory, however, he was permitted to make reference to a sketch which he prepared shortly after the time of the alleged offence, as an aid to his existing memory of the relevant circumstances.

[70] In my view, the defendant testified in a clear and unequivocal manner. His testimony was internally consistent and he did not appear to exaggerate his account of the relevant events. He was responsive to questions posed to him during cross-examination and the force of his evidence was not weakened as a result of cross-examination. His testimony may, therefore, be considered credible.

[71] The element of the actus reus in this proceeding which has not been proven through the undisputed evidence is the issue of whether or not the defendant obeyed the direction of the stop sign which he was approaching, by stopping his vehicle at the marked stop line relative to the stop sign. During the course of his testimony-in-chief, the defendant unequivocally stated that at the relevant time, he stopped his vehicle "behind the white line of the crossroad". The strength of the defendant's statement in this regard was not weakened through cross-examination.

[72] While I acknowledge that the defendant's exculpatory evidence relative to his assertion that he stopped his vehicle behind the marked stop line lacked detail, especially in respect of the duration of the stop, his evidence pertaining to the events immediately before and after the time of the stop were, by contrast, precise and particular. Accordingly, when I consider the defendant's declaration that he stopped his vehicle after the vehicle in front of him had travelled past the stop sign in conjunction with the balance of his detailed account of the subject incident, I am satisfied that the totality of his exculpatory evidence may be characterized as being both credible and reliable.

[73] In applying the principles enunciated in Regina v. W.(D.), supra, to the assessment of the credibility of the conflicting evidence in this matter, I find that I am unable to firmly believe the exculpatory evidence of the defendant, due primarily to its obvious lack of independence. On the other hand, when I consider the said exculpatory evidence in the context of the totality of the evidence before me, I find that I am left in a state of reasonable doubt as to the defendant's guilt of the subject charge.

[74] In reaching this conclusion, I have considered the defendant's reliable evidence, wherein he steadfastly maintained that he stopped his vehicle behind the subject stop line before entering the intersection, in the context of both the balance of his evidence and the oral evidence of Police Officer Zivkovic. In particular, I have weighed the defendant's exculpatory assertion in conjunction with the officer's evidence that he may have made his observations of the defendant's vehicle at the relevant time from a position approximately 50 metres north of the subject intersection.

[75] When I assess the credibility of the defendant's statement that he "stopped" his vehicle "behind the white line of the crossroad", in the context of Officer Zivkovic's conflicting evidence that he clearly observed the defendant's vehicle pass over the stop line without first coming to a complete stop, but from an uncertain distance - possibly "greater than 50 metres", I am not sure of the defendant's guilt of the subject charge. It would be illogical to attach significant weight to the officer's observations of the actions of the defendant's vehicle at the material time, if those observations were, in fact, made from a distance of 50 metres or more.

[76] The defendant's version of the events is certainly plausible. There is no basis to logically reject his exculpatory evidence. The defendant's detailed description of the subject intersection and of both his actions and the actions of other vehicles in the vicinity of the subject intersection serve to enhance the plausibility of his account of the relevant events. The defendant's steadfast denial that he failed to stop his vehicle in the manner prescribed by paragraph 136(1)(a) of the Act, considered in the context of the police officer's uncertainty as to his particular location when he observed the actions of the defendant's vehicle, leads me to only one common-sense conclusion; that the prosecution has failed, on the evidence as a whole, to establish the defendant's guilt of the subject charge, beyond a reasonable doubt. That conclusion is supported by the concept, as stated in Regina v. Starr, supra, that the standard of proof beyond a reasonable doubt falls much closer to the standard of absolute certainty than to that of probable guilt.

[77] In making such a determination, I am of the view that when the defendant testified that he "stopped" his vehicle "behind the white line of the crossroad", one may reasonably infer that he brought his vehicle to a complete stop. This inference is consistent with the ordinary meaning of the verb "stop", which, as stated in the Canadian Oxford Dictionary, Second Edition (2004, Oxford University Press), includes the notions of "cease from forward movement" or "come to a standstill or state of rest".

[78] In summary, for the reasons expounded above, I find that the totality of the evidence before me in this proceeding has failed to establish, beyond a reasonable doubt, the element of the actus reus of the subject offence pertaining to the alleged failure of the defendant to stop his vehicle at the marked stop line for westbound traffic on Northridge Trail at the subject intersection. This finding is derived from my conclusion, based upon the second prong of the W.(D.) instructions, that the testimony of the defendant considered in the context of the evidence as a whole, has raised a reasonable doubt that the defendant, at the material time, failed to stop his vehicle in the manner prescribed by paragraph 136(1)(a) of the Act.

THE DECISION

[79] The prosecution has failed to prove all of the elements of the actus reus of the subject offence against the defendant, to the standard of proof beyond a reasonable doubt. Accordingly, the prosecution has failed to discharge its legal burden to prove the guilt of the defendant of the subject charge, beyond a reasonable doubt.

[80] The defendant is therefore found not guilty of the charge of "disobey stop sign – fail to stop" as contained in Certificate of Offence no. 1260-9506128B. The said Certificate is endorsed as "dismissed".

Released: May 23, 2013

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