Court File and Parties
Court File No.: Halton - Milton 1260-9540471B
Date: 2013-11-13
Ontario Court of Justice
Between:
Her Majesty The Queen
— AND —
M. Rizwan Ali
Before: Justice of the Peace Kenneth W. Dechert
Heard: March 22, 2013 and July 10, 2013
Reasons for Judgment Released: November 13, 2013
Provincial Offences Court – Milton, Ontario
Counsel
For the Prosecution: J. Stewart
For the Defendant: M. Rizwan Ali (Self-represented)
Statutes, Regulations and Rules Cited
Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, subsection 1(1), paragraph 136(1)(a) and subsections 182(1) and 182(2)
Ontario Regulation 615, R.R.O. 1990, Reg. 615, as amended, made pursuant to the Highway Traffic Act, subsections 6(1) and 6(2) and sections 7, 8 and 9
Cases Cited
Regina v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (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.)
K.W. DECHERT, J.P. (orally):
INTRODUCTION
[1] The defendant, M. Rizwan Ali, stands charged under certificate of offence no. 1260-9540471B that he on the 11th day of September, 2012 at 3:25 p.m., at Scott Boulevard and Pringle Avenue in the Town of Milton, "did commit the offence of disobey sign", contrary to section 182(2) of the Highway Traffic Act.
[2] On March 22, 2013, the defendant entered a plea of not guilty to the said charge and a trial of the matter then ensued before me. The trial was not completed on the said date and was, consequently, adjourned to July 10, 2013, when it finished. The proceeding was then adjourned to November 13, 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 sign", contrary to the provisions of subsection 182(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as "the Act". In order to determine the essential elements of the subject offence under subsection 182(2), the said subsection needs to be analyzed in connection with the provisions of subsection 182(1) of the Act. The two subsections read as follows:
182(1) The Lieutenant Governor in Council may make regulations requiring or providing for the erection of signs and the placing of markings on any highway or any type of class thereof, and prescribing the types of the signs and markings and the location on the highway of each type of sign and marking and prohibiting the use or erection of any sign or type of sign that is not prescribed.
182(2) Every driver or operator of a vehicle or street car shall obey the instructions or directions indicated on any sign so erected.
[5] According to the evidence in this proceeding the sign which the defendant allegedly disobeyed, was a stop sign located at an intersection. The provisions of paragraph 136(1)(a) of the Act, are, therefore, relevant to this proceeding. That paragraph reads as follows:
136(1) 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; …
[6] The terms "driver", "highway" and "vehicle", which are referenced in subsections 182(1) and 182(2) of the Act, are defined in subsection 1(1) of the Act, as follows:
1(1) In this Act,
'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;
'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;
[7] The Lieutenant Governor in Council has prescribed the use and the erection of "stop signs" relative to highways in the Province of Ontario, through the regulations contained in Ontario Regulation 615, R.R.O. 1990, Reg. 615, as amended, made pursuant to the Act, titled "Signs". The instructions or directions set out in the regulatory stop sign as well as its shape and dimensions are particularized in subsections 6(1) and 6(2) of Ont. Reg. 615, as follows:
6(1) A stop sign erected before August 1, 1993 shall,
(a) be octagonal in shape, not less than 60 centimetres in height and width and bear the word 'stop' in white retro-reflective letters not less than 20 centimetres in height on a background of red retro-reflective material; or
(b) be octagonal in shape, not less than 60 centimetres in height and width and bear the words 'stop' and 'arret' in white retro-reflective letters on a background of red retro-reflective material.
6(2) A stop sign erected on or after August 1, 1993 shall be as described in clause (1)(a) and illustrated in the following Figure: … [The regulation then contains a drawing of a stop sign, specifically setting out its dimensions as an octagonal figure with a height and width of 60 centimetres showing the word 'STOP' in white-coloured upper case letters, being no less than 20 centimetres in height, in the centre portion of the sign, with a red-coloured backdrop.].
[8] Sections 7 to 9 of Ont. Reg. 615, set forth the specific requirements pertaining to the location and erection of "stop signs" on highways. Section 7 thereof states that a "stop sign shall be erected on the right side of the highway, facing approaching traffic, at a point not less than 1.5 metres and not more than 15 metres from the intersecting roadway or the nearest rail at a railway crossing".
(ii) Relevant Common Law
[9] 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. Furthermore, 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 conclusion reached in Regina v. Walker, supra, that the said offence was one of absolute liability.
[10] In the case at bar, the defendant is charged with the offence of disobey sign, under subsection 182(2) of the Act. It is clear from the evidence before me, that the theory of the prosecution in this proceeding is that the defendant failed to abide by the direction contained in a stop sign to bring his vehicle to a full stop on the highway.
[11] While it is acknowledged that the rule set out in subsection 182(2) of the Act, is a general rule which pertains to a number of signs, the specific rule sought to be enforced through the prosecution of the allegations of the case at bar, is one which is similar to the gravamen of the offence of failing to stop for a stop sign. Accordingly I am of the view that the jurisprudence relative to the issue of the classification of the said offence contrary to paragraph 136(1)(a) of the Act, may be applied to the subject offence of disobey sign, so as to properly categorize it as an offence of absolute liability. In reaching this conclusion, I have taken into consideration the similarity of the penalty, which could be imposed upon conviction for each of the offences contrary to subsection 182(2) and paragraph 136(1)(a) of the Act; that being a monetary penalty ranging from $60.00 at the minimum to $500.00 at the maximum.
[12] In light of my determination that the offence of disobey sign as it relates to a stop sign is one of absolute liability, it is acknowledged that in order to sustain a conviction for the subject offence, the prosecutor need only establish that the defendant committed the actus reus of the offence, beyond a reasonable doubt. Once the actus reus has been proved to the requisite standard, the mental element of the offence; that of negligence, is automatically imported therein. The prosecutor is not required to prove that the defendant intended to commit the prohibited act.
[13] 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; (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".
[14] In his decision in Regina v. Lavelle (1958), 122 C.C.C. 111 (Ont. H.C.), Landreville J. made the following comments pertaining to the presumption of regularity pertaining to regulatory traffic signs:
…I do hold that when it is established that a sign has been erected in pursuance of the Regulations of an Order in Council and of a by-law, it is a reasonable inference and there must be a presumption that the officials of the municipality, acting under instructions, have so erected a sign in size, colour and in location in compliance with the Regulations. They are skilled and experienced in that matter and it must be presumed that they have carried out their instructions. When a constable gives in evidence that a 'Stop Sign' was erected on location, the Crown has established a prima facie case. It may be met by the defence that in fact the sign did not comply with the Regulations. But it should not be the obligation of the Crown to go further and have, in each case, the municipal engineer with transom and tape as to location, height, etc. to establish conformity to the Regulations. …
THE EVIDENCE
[15] During the course of the proceedings of March 22, 2013 in this matter, I received the testimony of Police Constable Mina Daif, tendered on behalf of the prosecution. Upon reconvening this proceeding on July 10, 2013, the defendant testified on his own behalf.
(i) The Testimony of Police Constable Mina Daif
[16] Police Constable Daif testified that he was a police officer with the Halton Regional Police Service and that he had been so employed since August 2007.
[17] Constable Daif testified that he was familiar with the matter pertaining to the charge of disobey sign against the defendant and that he had made notes pertaining to his investigation of the allegations supporting the charge. The constable was granted permission to refer to his investigative notes during the course of his testimony, for purposes of refreshing his existing memory of the relevant events.
[18] Constable Daif testified that on September 11, 2012, at approximately 1:50 p.m., he was "stationed" at the intersection of Scott Boulevard and Pringle Avenue, in the Town of Milton, for the purpose of "conducting stop sign enforcement" at that intersection. He advised that at that time he was "stationed" inside his police cruiser, which was parked on Pringle Avenue, facing in an easterly direction, approximately 10 metres west of the intersection of Pringle Avenue and Scott Boulevard. He stated that on that day the weather was clear and dry and the temperature was approximately 20 degrees.
[19] Constable Daif described the intersection of Scott Boulevard and Pringle Avenue as a "T" intersection. He advised that Scott Boulevard was a north/south highway with one lane for motor vehicles running in each direction and with one designated bicycle lane running in each direction. He went on to advise that Pringle Avenue, at its intersection with Scott Boulevard, was an east/west highway with one lane in each direction, running west of Scott Boulevard.
[20] The constable stated that the subject intersection was governed by "regulatory" stop signs "as per the Highway Traffic Act". In particular he advised that the stop signs governed northbound and southbound traffic on Scott Boulevard as well as one direction of travel on Pringle Avenue. He testified that the intersection was "clearly marked by stop lines at the stop signs" and was also "marked by crosswalk lines" which followed the stop lines. In clarifying his testimony in this regard, Officer Daif stated that as a driver approached the intersection from any of the allowable directions, he/she would cross over the stop line first, and then the crosswalk. He went on to state that all of the posted stop signs, marked stop lines and crosswalk lines were clearly visible and unobstructed at the material time.
[21] Constable Daif testified that from his stationary position on Pringle Avenue, he was able to observe activity on Scott Boulevard, to the extent of approximately 30 to 40 metres to the north or south.
[22] The officer testified that at approximately 3:25 p.m. on the subject date, he had occasion to observe a dark blue-coloured motor vehicle, which he described as a van, travelling in a northerly direction on Scott Boulevard at a rate of speed of approximately 40 to 50 kilometres per hour. He stated that he observed the motor vehicle drive through the subject intersection "without slowing down or stopping for the stop sign at all". It was the officer's evidence that the said motor vehicle failed to stop in accordance with the direction on the stop sign governing the flow of northbound traffic on Scott Boulevard. In reference to the actions of the subject vehicle at the relevant time, Constable Daif remarked that he "could clearly observe the wheels in full forward motion".
[23] Constable Daif testified that as a result of his observations of the subject van, he "initiated a traffic stop with that vehicle, metres north of that intersection". He went on to testify that upon stopping the vehicle, he advised its driver of the reason for the stop. He advised that the driver of the vehicle identified himself "with a valid Ontario driver's licence with a digitized photograph on the licence". He stated that the licence surrendered identified the driver as "M. Rizwan Ali". He went on to state that upon comparing the digital photograph on the licence with the driver before him at that time, he was satisfied that the driver was the said M. Rizwan Ali.
[24] Constable Daif testified that "during the course of his investigation", he decided to "exercise discretion" and therefore issued Mr. Ali a "reduced Provincial Offences Notice" for the offence of disobey sign, under certificate of offence number 9540471B.
[25] Constable Daif advised that the posted speed limit on Scott Boulevard approaching the subject intersection was 50 kilometres per hour. In answer to the prosecutor's question as to how he satisfied himself that the subject vehicle did not stop at the intersection in accordance with the directions of the relevant stop sign, the officer stated as follows:
From my position I could observe approximately 30 to 40 metres in each direction on Scott. That's north and south. As a result I was clearly able to see the vehicle upon approach and as it drove through. At no point did I see the wheels on the vehicle come to a full stop.
[26] Constable Daif advised that at the time that he was making his observations of the van there was no other vehicular traffic within the subject intersection. He indicated that he could not recall whether there were any pedestrians located within the intersection at the time. Furthermore, he stated that he did not lose sight of the subject vehicle from the time that he first observed it until the time that he stopped it.
[27] In completing his testimony-in-chief, Constable Daif advised that the subject intersection was in a school zone, noting that an elementary school known as "Escarpment View Public School" was situated approximately 300 to 500 metres south of the intersection.
[28] During cross-examination, Officer Daif acknowledged that he had been sitting in his police cruiser parked on Pringle Avenue facing in an easterly direction for approximately one hour and twenty-five minutes prior to the time that he "stopped" the subject dark blue-coloured van. The defendant and the officer then engaged in the following question and answer exchange:
Q (the defendant): Now when you observe the vehicles do you do anything else at the time in your vehicle?
A (the witness): No. I was watching the intersection.
Q: Is it possible at all that you could be doing something when the vehicle went by and you didn't see the full stop?
A: No, it wouldn't be possible simply because I was at that intersection solely for the purpose of enforcing the stop sign.
(ii) The Testimony of the Defendant
[29] The defendant testified in chief, as follows:
I guess I'll start from the beginning. I'll just state for the fact that I'm a taxi driver. You know, I've been driving in Milton for a while now… and I'm very familiar with the streets and the signs and so forth and I find it difficult to believe that I would not stop at a stop sign when I clearly did. The officer stated that I was going about 40 to 50 kilometres at that time that he observed me. Again, I had just actually finished doing a drop. I had dropped off a student at the Escarpment Public School. So I'm quite aware of the fact that this is a school zone. So it's not possible for me to be doing – going at that speed. I'm also aware of the police officers around the Milton area. You know, they're doing their blitz and so forth. So I'm really conscientious when I'm driving. I make sure I follow all the signs and at this particular point as well, I made sure I stopped before the white line before I proceeded.
[30] In completing his testimony-in-chief, the defendant stated that he is "a really conscientious driver", noting that he "follow[s] all the signs and especially the stop signs and lights and so forth".
[31] During cross-examination, the defendant stated that he first became aware of the presence of the police officer as he approached the subject intersection. He advised that at that time, when he was approximately seven to eight feet away from the stop sign at the intersection, he "observed the officer sitting on the left side".
[32] The defendant testified that on the date of the alleged infraction, he had been working approximately six hours prior to the time that he was stopped by the police officer. He advised that during that six hour period of time, he had travelled through the subject intersection "at least three times", noting that there is a school there and that he does "school runs" at the school.
[33] In responding to the prosecutor's question as to how he was certain that he stopped his vehicle at this particular time, the defendant stated as follows:
Because like I said, I go on the street quite a bit so I'm familiar with all the stop signs there, how many stop signs there are there. It's not something new or it's not something that I would have missed.
[34] The defendant testified that at the material time there were no vehicles travelling ahead of him. He stated that he was stopped by the police officer at a location adjacent to a park which "wasn't too far from the actual stop sign". He advised that he observed the officer pulling out behind him with the lights of his police cruiser activated, just prior to the time that he was stopped.
THE ISSUES
[35] The ultimate issue in this proceeding is whether the prosecution has proven the actus reus of the subject charge, beyond a reasonable doubt.
[36] The sub-issue of the identity of the defendant as the driver of the subject motor vehicle 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 remaining sub-issue.
[37] According to subsection 182(2) of the Act, a driver or operator of a vehicle on a highway commits the actus reus of the offence created by that subsection when he/she fails to obey the instructions or directions indicated on any regulatory traffic sign. In the case at bar the sign, which is the subject matter of the charge is a stop sign erected at an intersection. Accordingly, it is a matter of common sense that a stop sign instructs or directs a driver to bring his/her vehicle to a full stop at a location adjacent to where the sign is situated. On the other hand, where a stop sign is located at an intersection, the direction to stop as indicated on the sign, is supplemented by the statutory direction as to the place where the vehicle or street car is required to stop as prescribed by paragraph 136(1)(a) of the Act.
[38] In my view, therefore, if the prosecution wishes to sustain a conviction for the subject offence it must prove, beyond a reasonable doubt, that the defendant failed to bring the vehicle which he was operating to a full stop at the marked stop line associated with the relevant stop sign.
ANALYSIS
[39] 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 11th day of September, 2012 at approximately 3:25 p.m., the defendant, M. Rizwan Ali, was operating a motor vehicle in a northerly direction on Scott Boulevard, approaching its intersection with Pringle Avenue, in the Town of Milton;
(ii) that Scott Boulevard and Pringle Avenue are "highways" within the meaning of the Act;
(iii) that as the defendant was approaching the said intersection, he was facing a regulatory stop sign which governed the flow of northbound traffic on Scott Boulevard at the said intersection; and
(iv) that at the material time, a white-coloured stop line associated with the said stop sign and located adjacent to the sign, was marked across the northbound lane of Scott Boulevard at a location south of the southerly entrance to the subject intersection.
[40] There is conflicting evidence before me as to the issue of whether, at the material time, the defendant disobeyed the directions indicated on the relevant stop sign, by failing to bring his vehicle to a full stop prior to entering the subject intersection.
[41] Constable Daif testified that the defendant failed to bring the motor vehicle which he was driving to a complete stop before proceeding through the intersection. In this regard, the officer stated that as the defendant approached the intersection, he failed to reduce the speed of his vehicle and travelled through the intersection at an estimated rate of speed of between 40 and 50 kilometres per hour. The defendant, on the other hand, testified that he complied with the direction of the stop sign by bringing the subject motor vehicle to a stop before the associated marked stop line, prior to entering the intersection.
[42] This is a case where the issue of credibility is important. Accordingly, I must undertake an assessment of the credibility of the witnesses in this proceeding.
[43] 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 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 his decision in that case, in paragraphs 26 to 28 thereof, Cory J. 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.
[44] In Regina v. Hull, [2006] O.J. No. 3177 (Ont. C.A.), Simmons, Armstrong and Rouleau JJ.A., rendered the following opinion pertaining to the proper application of the W.(D.) principles, at paragraph 5 thereof:
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.
[45] 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.) at paragraph 23, 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. …
[46] 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 paragraph 136(1)(a) of the 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.
[47] In describing the circumstances of the said offence, Mr. Justice Harris stated, in part, as follows:
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. …
[48] Mr. Justice Harris 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 W.(D.) principles. In reviewing the reasons of the trial jurist in this proceeding, he noted that the jurist 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".
[49] Furthermore, Mr. Justice Harris made the following comments as to why the trial jurist's reasons for judgment 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.
[50] 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 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.
[51] 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. …
[52] In my view, Constable Daif presented his evidence in a clear and concise manner. His existing memory of the relevant events was refreshed through his investigative notes, which were made contemporaneously with the time that the subject charge was instituted. Additionally, his testimony was both detailed and internally consistent and its strength was not diminished through cross-examination.
[53] The credibility of Constable Daif's testimony is directly related to the circumstances of his surveillance activities at the material time. His vantage point on Pringle Avenue, approximately 10 metres west of the subject intersection, provided him both the opportunity of having a clear view of the entire intersection and the ability to observe traffic on Scott Boulevard, distant approximately 30 to 40 metres to the north and the south of the intersection. The combination of these circumstances and the existence of a written record of his observations relative to this proceeding as an aid to his memory, served to enhance the overall reliability of the officer's verbal evidence. For these reasons, I have afforded the officer's assertion that he was able to clearly observe the wheels of the defendant's vehicle "in full forward motion" as it travelled passed the stop sign and into the intersection, significant weight relative to my analysis as to whether the prosecution has met its legal burden in this matter.
[54] On the other hand, the defendant presented his verbal evidence in a clear and unequivocal manner. During his testimony, he denied the veracity of Officer Daif's account of the relevant events of September 11, 2012. In particular, he denied the allegation that as he was driving his vehicle in the northbound lane of Scott Boulevard approaching the subject intersection, he was travelling at a rate of speed of approximately 40 to 50 kilometres per hour and the allegation that upon approaching the subject stop sign, he failed to bring his vehicle to a stop in accordance with the stop sign, prior to entering the intersection.
[55] It is important to note that in testifying the defendant not only denied the specific allegation that he disobeyed the stop sign, but unequivocally asserted that he stopped his vehicle. In that regard, he testified that he not only stopped his vehicle before proceeding into the subject intersection, but that he did so "before" the white-coloured stop line.
[56] The defendant's testimony was internally consistent and was not shaken through cross-examination. The strength of his assertion that he stopped his vehicle, was enhanced by his ability to advise as to the where he conducted the stop; prior to the location of the subject white line on the south side of the intersection. His exculpatory assertion was, therefore, more than just a bare assertion. I therefore find that the defendant presented as a credible witness.
[57] In analyzing the evidence in this proceeding, in accordance with the W.(D.) model jury instructions, I have applied the interpretation of those principles summarized in Regina v. Dinardo, supra, that in cases which turn on credibility, a trier of fact must direct one's mind to the "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".
[58] I find that I am unable to firmly believe the defendant's assertion that he stopped his motor vehicle in deference to the subject stop sign prior to entering the subject intersection, due primarily to its obvious lack of independence and objectivity. On the other hand, when I consider the defendant's exculpatory evidence in the context of the totality of the evidence received by me in this proceeding, I find that I am left in a state of reasonable doubt as to the defendant's guilt of the subject charge.
[59] While it is acknowledged that the defendant's version of the material events is completely divergent from the account presented by Constable Daif, I am of the view that the defendant's version is plausible when it is weighed in the context of the evidence which is not in dispute.
[60] Firstly, the defendant's denial of his alleged failure to obey the stop sign, is more than just a vague belief on his part that he thought that he had stopped his vehicle. His exculpatory testimony appears to be associated with his clear recollection of his taxi-driving activity immediately prior to the time of the alleged stop sign infraction, in a school zone, and the consequent requirement to be cognizant of his driving behaviour.
[61] Secondly, the plausibility of his assertion that he stopped his vehicle is enhanced by his ability to recollect the location of the stop; prior to the white-coloured, marked stop line, as he approached the subject intersection from the south. Furthermore, an important aspect of the defendant's testimony was his statement that as he was travelling in a northerly direction on Scott Boulevard, approaching its intersection with Pringle Avenue, he first became aware of the presence of the police officer "sitting on the left side", when he was situated approximately seven to eight feet south of the location of the stop sign. This is an important piece of evidence since the defendant's observation of the location of the police officer, "sitting" at a location to the left of the defendant, is consistent with the officer's testimony that he was monitoring the subject intersection from a stationary position to the west of the intersection.
[62] The defendant's evidence that he first observed the presence of the police officer when he was only seven to eight feet from the location of the stop sign has a ring of truth to it. It is logical that in such circumstances, the defendant would not be aware of the presence of a police officer quietly monitoring the intersection for rules of the road violations, until such time as he had travelled to a location in close vicinity to the intersection. Moreover, it is equally logical to conclude that once the defendant had become aware of the presence of the police officer, he would have taken immediate action to attempt to bring his vehicle to a stop within the seven to eight foot gap between his vehicle and the stop sign, rather than proceed through the intersection directly in front of the police officer, without first stopping for the stop sign.
[63] It is this latter factor which strengthens the plausibility of the defendant's exculpatory assertion from a common sense perspective. By finding that the defendant's exculpatory version of the relevant events, weighed in the context of the evidence as a whole, was sufficiently credible to be considered plausible, I have not rejected his evidence. Accordingly, the defendant's testimony considered in the context of the totality of the evidence in this proceeding, has raised a reasonable doubt as to his guilt of the subject offence.
[64] While I acknowledge that in order to sustain a conviction on any charge, the prosecution is not obliged to prove the elements of the actus reus to an absolute certainty, I nevertheless must be satisfied that the evidence establishes the elements of the actus reus of the offence, beyond a reasonable doubt; a standard much closer to absolute certainty than to probable guilt. In my view the totality of the evidence before me has established the disputed element of the actus reus of the subject offence; that of whether, at the material time, the defendant actually stopped his vehicle for the subject stop sign, on a balance of probabilities; however, the evidence has failed to establish that element to the quasi-criminal standard of proof beyond a reasonable doubt.
THE DECISION
[65] The elements of the actus reus of the subject offence have not been proven beyond a reasonable doubt. The prosecution has, therefore, failed to meet its burden of proof in respect of the offence.
[66] The defendant is therefore found not guilty of the offence of "disobey sign", contrary to subsection 182(2) of the Act. The subject charge under certificate of offence no. 1260-9540471B is therefore endorsed as being dismissed.
Released: November 13, 2013
Signed: "Justice of the Peace Kenneth W. Dechert"