Court File and Parties

Court File No.: Regional Municipality of Durham 2860 999 00 5110538Z

Date: 2013-10-07

Ontario Court of Justice

Between:

Regional Municipality of Durham

— AND —

James Cottrell

Before: Justice of the Peace R.J. Le Blanc

Heard on: June 5 and August 12, 2013

Reasons for Judgment released on: October 07, 2013

Counsel:

• Karen Miller for the prosecution
• Jack Sturch for the defendant James Cottrell

Regulations and Case Law Considered

• s. 140(1)(a) Highway Traffic Act – Pedestrian crossover, duties of driver
• s. 138(1) of the Highway Traffic Act – Driver fail to yield at yield sign
• s. 144(7) of the Highway Traffic Act – Driver fail to yield for pedestrian in crosswalk
• s. 1(1) Highway Traffic Act – Definition of 'pedestrian crossover'
• Ontario Traffic Management Book 11: Markings and Delineations
• Ontario Traffic Management Book 15: Definitions of Crossover, Crosswalk and Traffic Islands
• s. 55 Provincial Offences Act
• R. v. Calleja, 2013 ONCJ 7, [2013] O.J. No. 116, 39 M.V.R.(6th) 162
• R. v. Schell, [2009] O.J. No. 4668 (Ont. S.C.)
• R. v. Fontaine, [2004] 1 S.C.R. 702
• U.S.A. v. Shepherd, [1977] 2 S.C.R. 1067
• R. v. Mezzo, [1986] 1 S.C.R. 802
• R. v. W. (D.), 63 C.C.C. (3d) 397
• R. v. L.J.W., 2006 NSCA 79
• R. v. Kelleher, 2009 ONCJ 54
• R. v. Ta, 2008 ABPC 236
• R. v. Del Rosario, 2011 ABPC 294
• R. v. Gill, 2012 ONCJ 473
• Binus v. R.
• R. v. Krupa, [2002] O.J. No. 1650

Reasons for Judgment

JUSTICE OF THE PEACE R. J. LE BLANC:

The Incident

[1] Defendant James Cottrell admits he may have been distracted on the evening of April 1, 2012 when he hit a pedestrian while transitioning into the southbound Brock Road lanes from a channelized right turn lane on Kingston Road in Pickering.

[2] There is no dispute as to the date, time, place or Mr. Cottrell's identity.

[3] Eastbound Kingston Road contains four lanes at Brock Road including a left and a channelized right turn lane. There is no dispute that there is a traffic island between this channelized right turn lane from Kingston Road onto Brock Road in the Regional Municipality of Durham.

[4] There is no dispute that regulation white painted line crosswalks emanate from this traffic island across the main portion of Kingston Road and Brock Road. There is no dispute that pedestrian crossing lights and traffic lights regulating vehicle flow at that location are situated on this traffic island.

The Issue in Dispute

[5] The issue in dispute is whether the area where the collision took place -- between the southwest corner of Kingston Road and the traffic island -- meets the definition of a 'pedestrian crossover' as per the wording of the charge of failing to yield to a pedestrian contrary to s. 140(1)(a) of the Ontario Highway Traffic Act.

The Evidence

[6] Investigating Durham Regional Police officer Const. Matt Roy and the defendant James Cottrell testified there were no white painted pedestrian crosswalk lines between the curb -- across the channelized right turn lane at Kingston Road onto Brock Road -- and a traffic island on the date and time in question.

[7] Officer Roy's evidence was that there were no pedestrian crossing signs at this location. The only sign in the immediate vicinity of the collision is a 'YIELD' sign on the southwest curb before traffic transitions into the southbound lanes of Brock Road. The 'YIELD' sign is located behind the collision point.

[8] Const. Roy testified that pedestrian Daniel Gazarek suffered minor leg injuries, and that there was a slight dent in the middle of front bumper of Mr. Cottrell's 2003 Toyota.

[9] Mr. Gazarek and civilian witness Andrew Davy provided contradictory evidence with regard to the white pedestrian crossing lines painted on the road surface between the southwest curb of Kingston Road and the traffic island at the time of the accident.

[10] Mr. Gazarek said he, "followed the markings on the road toward the island" when he was struck.

[11] Mr. Davy notes the area between the southwest corners of Kingston Road at Brock Road as having "a little (traffic) island, no (traffic or pedestrian crossing) lights but a painted pedestrian crossing on the road."

Motion for Non-Suit Denied

[12] This contradictory evidence from Mr. Gazarek and Mr. Davy is of note given the Court denied defence agent Jack Sturch's motion for non-suit.

[13] Mr. Sturch said the Court did not have any evidence of white 'pedestrian crossing lines' marked on the pavement between the traffic island and the southwest corner of Kingston Road at Brock Road at the time of the accident.

[14] Prosecutor Karen Miller countered with R. v. Calleja, 2013 ONCJ 7, [2013] O.J. No. 116, 39 M.V.R.(6th) 162, which quotes L.M. Baldwin J. as saying, "whether a pedestrian was hit in a crossover or crosswalk is irrelevant to whether the offence was committed – the penalties are identical."

[15] In R. v. Calleja (supra) the respondent submitted the broad definition of pedestrian crossover in the Highway Traffic Act subsumes the definition of pedestrian crosswalk. The judicial officer who reviewed the motion for non-suit stated, "…notwithstanding the subtle, in my view, differences between a pedestrian crossover and crosswalk, that the legislators could not and would not have intended such a difference to allow … immunity to a motorist who has clear obligations at such an intersection."

[16] The respondent in R. v. Calleja (supra) submitted the term 'crossover' applies to any designated area in which pedestrians are directed to cross, whether at an intersection controlled by stop signs or at entrances and exits to commercial properties, or across right turn merging lanes in advance of a signalized intersection.

[17] Baldwin J. determined in R. v. Calleja (supra) that substance trumps form and that while the section number provides the ingredients of an offence; it is not the offence itself. One can be found guilty of failing to yield to a pedestrian' under either s. 140(1)(a) or s. 144(7) of the Highway Traffic Act.

[18] In paragraph 34 Baldwin J. said, "I find that whether the pedestrian has been hit in a crossover or crosswalk is irrelevant to whether or not the offence of 'Fail to Yield to a Pedestrian' has been committed. Under both sections the pedestrian is required to be crossing within their legal right-of-way and the motor vehicle driver must obey the signs/road markings/lights that mark the pedestrian crossing."

[19] The test for non-suit is not whether there is evidence beyond a reasonable doubt, but only that there is some evidence on each of the essential elements of the offence as per R. v. Schell, [2009] O.J. No. 4668 (Ont. S.C.).

[20] For a prima facie case there must be some evidence upon which a properly instructed jury could rationally conclude that an accused is guilty beyond a reasonable doubt as per R. v. Fontaine, [2004] 1 S.C.R. 702, which is a refinement of the classic test as per U.S.A. v. Shepherd, [1977] 2 S.C.R. 1067.

[21] In determining whether a prima facie case has been made out, the justice assumes the witness is truthful and also accurate and does not decide whether a witness is to be believed as per R. v. Mezzo, [1986] 1 S.C.R. 802.

[22] The Court dismissed Mr. Sturch's motion for non-suit citing R. v. Schell (supra) given there was at least some evidence from two of four witnesses as to the existence of white painted pedestrian crossing lines across the channelized right turn lane – between the curb and the traffic island -- from eastbound Kingston Road to southbound Brock Road.

Submissions

[23] In submissions Mr. Sturch said there should be reasonable doubt in the Court's mind as to whether there were white pedestrian crosswalk lines located in the channelized right turn lane between the traffic island and the southwest corner of Kingston Road at Brock Road given the conflicting evidence.

[24] Mr. Sturch submits the Court is required as per R. v. W. (D.), 63 C.C.C. (3d) 397 to conduct a three question analysis whenever there is contradictory evidence and credibility becomes an issue. The Supreme Court of Canada explaining the test for reasonable doubt in a credibility assessment, sets out the following formula:

a. "First, that if they believe the evidence of the accused, then they must acquit.

b. Secondly if they do believe the testimony of the accused but are left in a reasonable doubt by it, then the jury must acquit.

c. Thirdly even if the Jury are not left in doubt by the evidence of the accused, they must ask themselves whether on the basis of the evidence which they do accept, they are convinced beyond a reasonable doubt of the guilt of the accused."

[25] Failing that Mr. Sturch said the Court must dismiss the charge since it does not meet the Highway Traffic Act definition of 'pedestrian crossover'.

R. v. W. (D.) Analysis

[26] Having conducted an R. v. W.(D.) (supra) analysis the Court finds the evidence of witnesses Mr. Gazarek and Mr. Davy to be as credible as the evidence of the investigating officer and the defendant, if not more so.

[27] In considering this evidence the Court is cognizant of R. v. L.J.W., 2006 NSCA 79, which warns of the trap of deciding which witness's story is more credible, thus determining one story is more probable than not, and thereby falling short of deciding whether there is proof beyond a reasonable doubt.

[28] Mr. Gazarek, a life-long resident of the area, testified he was a regular user of this crossing.

[29] "I followed the markings on the road toward the island when I was struck," Mr. Gazarek said.

[30] It may be argued that Mr. Gazarek's evidence is self-serving but his evidence is supported substantially by Mr. Davy's evidence which was very specific on the subject of the pedestrian crossing at this location. Mr. Davy appeared to have been in an ideal location to witness the accident.

[31] Mr. Davy said in his evidence-in-chief that "this is a little (traffic) island, no (traffic or pedestrian crossing) lights but a pedestrian crossing painted on the road. He (Mr. Gazarek) took two steps onto the road when he was hit (by Mr. Cottrell's vehicle)."

[32] In cross-examination, Mr. Davy said, "cars are supposed to yield" at this location, adding "there are white lines that guide you."

[33] The Court places great weight on Mr. Davy's evidence as an independent, neutral, third-party eye witness in an ideal location to observe.

[34] The defendant's evidence – even taking into account Mr. Cottrell's apparent nervousness on the witness stand -- that there were no white 'pedestrian crossing' lines at this right hand turn is at best self-serving.

[35] Mr. Cottrell's evidence is also discounted by his contention that despite using this heavily-travelled intersection regularly, he's never seen a pedestrian cross at this location. To his credit he admits he was distracted and takes responsibility for hitting a pedestrian.

[36] The Court is unable to explain why the officer did not note, and did not believe there to be white painted pedestrian crossing lines in the channelized right hand turn lane between traffic island and the southwest corner of Kingston Road where the right turn lane merges onto southbound Brock Road.

[37] Const. Roy's testimony is that while there are no crosswalk lines or pedestrian crossing signs or light at this specific location, he does see "pedestrians cross here on a regular basis."

[38] Const. Roy goes on to say, "the only other way to cross (at this location) would be to jaywalk."

Crossovers Defined

[39] S. 140(1)(a) reads: Pedestrian crossover, duties of driver – subject to subsection (2) when a pedestrian or a person in a wheelchair crossing a roadway within a pedestrian crossover,

(a) is upon the half of the roadway which a vehicle or street car is travelling; or

(b) is upon half of the roadway and is approaching the other half of the roadway on which a vehicle or street car is approaching so closely to the pedestrian crossover as to endanger him or her,

the driver of the vehicle or street car shall yield the right of way to the pedestrian or a person in a wheelchair by slowing down or stopping if necessary.

[40] The 2012 Annotated Ontario Highway Traffic Act on page 8 of section one, defines 'pedestrian crossover' as being "any portion of a roadway, designated by bylaw of a municipality at an intersection or elsewhere, distinctly indicated for pedestrian crossing by signs on the highway and lines or other markings on the surface of the roadway as prescribed by the regulations."

[41] The Court turns to the Ontario Traffic Management (OTM) Book 15 released in December of 2010, to assist it in understanding the definitions contained in the Highway Traffic Act as they relate to crosswalks, pedestrian crossovers and traffic islands in order to make a more fully informed decision.

[42] OTM Book 15 states, "The Ontario Highway Traffic Act defines the rules of the road, including conditions under which pedestrians can cross a road and walk within the roadway. The Highway Traffic Act identifies the responsibilities and rights of pedestrians and drivers for different forms of pedestrian crossings.

[43] The Highway Traffic Act recognizes two distinct categories of pedestrian crossing which OTM Book 15 further defines as:

a. controlled crossings where vehicles are required to stop or yield to traffic legally in the intersection (the definition of traffic includes pedestrians), or

b. an uncontrolled crossing where pedestrians must wait for safe gaps in traffic before crossing a roadway. An uncontrolled crossing does not have any traffic control measures to provide a dedicated pedestrian right-of-way.

[44] The OTM Book 15 states controlled pedestrian crossings include vehicle control by way of traffic signals, intersection pedestrian signals, mid-block pedestrian signals, pedestrian crossovers, 'STOP' or 'YIELD' or 'SCHOOL CROSSING' signs.

[45] The OTM Book 15 notes, "although crossing at an uncontrolled crossing is not illegal, pedestrians do not have the right-of-way. Both forms of crossing (controlled or uncontrolled) may be appropriate given governing conditions and measured or anticipated pedestrian demand."

[46] Pedestrians are responsible according to the Highway Traffic Act to ensure any crossing of a highway -- in any location -- may be made safely.

[47] The Highway Traffic Act s. 144(28) states, "Every pedestrian who lawfully enters a roadway in order to cross may continue the crossing as quickly as reasonably possible despite a change in the indication he or she is facing and, for purposes of the crossing, has the right of way over vehicles."

[48] S. 140(1) of the Highway Traffic Act defines pedestrian crossovers being "any portion of a road way designated by by-law of a municipality, at an intersection or elsewhere, distinctly indicated for pedestrian crossing by signs on the highway and lines or other markings on the surface of the roadway as prescribed by the Highway Traffic Act regulations."

[49] The Court has evidence by way of exhibit one that this portion of the roadway has been designated by municipal bylaw.

[50] Pedestrian crossovers according to the OTM Book 15 "are distinctly defined by the prescribed use of regulatory and warning signs, flashing amber beacons and pavement markings, thus providing pedestrians with protected crossing opportunities by requiring motorists to yield to pedestrians within the crosswalk. The presence of a pedestrian in the crossing or approaching their half of the road is what triggers the motorist's requirement to yield."

[51] Legal pedestrian crossovers require either a ground-mounted or overhead illuminated double-sided sign indicating the presence of a pedestrian crossover to all road users to alert drivers to the presence of pedestrian crossover and to indicate to them the exact crossover location. Pedestrian actuation of the flashing amber beacons is by push button.

Traffic Islands Defined

[52] Channelized right-turn lanes, according to the OTM Book 15, increase intersection efficiency, reduce unnecessary delay, and reduce idling emissions in high traffic areas by use of a traffic island which also provides a pedestrian "refuge area" in addition to providing a place to install traffic control signals. Such is the case in Durham (Regional Municipality) v. Cottrell.

[53] The OTM Book 15 speaks of "free flow" pedestrian crossings and areas which are 'signed' in advance of a pedestrian crossing where drivers are required to stop.

[54] Pedestrian crossings at 'free flow' locations are required to yield the right of way to a motorist before crossing to the island. 'Free flow' locations do not have crosswalk markings on the road. A 'WAIT FOR GAP' sign should be installed if pedestrians frequently cross at a location without waiting for the appropriate gaps and/or where drivers may not expect pedestrians.

[55] There is no evidence of a 'WAIT FOR GAP' sign required for a 'free flow' pedestrian crossing though there is evidence from two of four witnesses in Regional Municipality of Durham v. Cottrell who testified there were crosswalk markings on the road between the southwest corner of Kingston Road at the Brock Road traffic island at the time of the collision. Therefore the Court cannot logically conclude this location is a 'free flow' pedestrian crossing.

[56] The OTM Book 15 says drivers in right-turn channels are required to yield the right of way to pedestrians where there is a 'YIELD' or 'STOP' sign posted in advance of a crosswalk. There is no evidence before the Court of a 'YIELD' or 'STOP' sign posted in advance of the crosswalk between the southwest corners of Kingston Road at the southbound Brock Road traffic island.

[57] The OTM Book 15 says right turn channels may be integrated as part of a signalized intersection or the yield control may be oriented requiring right-turning vehicles to yield to pedestrians in addition to cross-street traffic. Crosswalk markings are appropriate in these locations. It would appear from the evidence that the location in Durham (Regional Municipality) v. Cottrell meets this definition.

[58] The OTM Book 15 says 'YIELD' signs are to be installed by municipal by-law in advance of the crossing point at a right turn channel involving a traffic island to create a 'controlled crossing' and it is then considered appropriate to mark the crosswalk between the boulevard and the island.

[59] There is no evidence before the Court of a 'YIELD' sign posted in advance of the pedestrian crosswalk at this location and therefore the Court cannot conclude this to be a right turn channel 'controlled' pedestrian crossing.

[60] The OTM Book 15 says crosswalk alignments should be straight and unobstructed. Wherever possible, crosswalks and crosswalk markings should be within the most direct route from sidewalk to sidewalk. This appears to be the case in the Durham (Regional Municipality) v. Cottrell.

Court's Findings

[61] The Court concurs with Mr. Sturch that the evidence does not fully fall within the definition of pedestrian crossover – given the lack of required signage -- in order to secure a conviction for failing to yield to a pedestrian contrary to s. 140(1)(a) of the Ontario Highway Traffic Act.

[62] Having said that Mr. Sturch made his client aware that it is within the Court's purview under s. 55 of the Provincial Offences Act to arrive at a finding of guilt to a lesser but included charge if there is evidence to support such a decision.

Fail to Yield s. 138(1)

[63] The Court considered the charge of fail to yield as per S. 138(1) of the Highway Traffic Act which says "the driver or operator of a vehicle or street car approaching a yield right-of-way sign shall slow down to a speed reasonable for the existing conditions or shall stop if necessary as provided in clause 136(1)(a) and shall yield the right of way to traffic in the intersection or approaching on the intersecting highway so closely that it constitutes an immediate hazard and having so yielded may proceed with caution. R.S.O. 1990, c. H.8, s. 138(1)."

[64] The Highway Traffic Act definition of 'traffic' includes pedestrians.

[65] Const. Roy's evidence is that there is a 'YIELD' sign on the channelized right turn lane off Kingston Road where it transitions onto Brock Road. The Court also has Mr. Cottrell's evidence that he was travelling at about 40 km/h at the time, and that being momentarily distracted, he did not see Mr. Gazarek as he crossed the road.

[66] It is not open to the Court to find Mr. Cottrell guilty of the lesser but included offence of failing to yield under s. 136(1)(a) given there is no evidence of a 'YIELD' sign in advance of the pedestrian crosswalk at this location.

Crosswalk Defined

[67] The Court also considered the offence of driver fail to yield to pedestrian in crosswalk contrary to s. 144(7) of the Highway Traffic Act as per R. v. Calleja (supra) which speaks to substance over form.

[68] The Highway Traffic Act section 1(1), defines a "crosswalk" as that part of a highway at an intersection that is included within the connections of the lateral lines of the sidewalks on opposite sides of the highway, measured from the curbs or, in the absence of curbs, from the edges of the roadway, or b) any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface.

[69] Pedestrian crosswalk markings, according to OTM Book 15, define and delineate the path for pedestrians to cross the roadway and serve to reduce the potential for conflicts with motor vehicles.

[70] To more fully understand the legislation concerning crosswalks the Court turns to OTM Book 11 released in March 2000 which focuses on markings and delineation.

[71] OTM Book 11 explains crosswalk markings define and delineate the path for pedestrians to cross the roadway. Crosswalks should be marked at all intersections where there is substantial conflict between vehicle and pedestrian movements. It is open to the Court to find this appears to be the case in Durham (Regional Municipality) v. Cottrell.

[72] OTM Book 11 says obstacles such as curbs and raised islands should remain outside the crosswalk lines in consideration of persons with walking impairments and persons using wheelchairs, walkers, and strollers. The traveled part of the crosswalk must be aligned with sidewalk ramps and curb cuts where these are provided at one or both sides of the roadway. It is open to the Court to find this appears to be the case in Durham (Regional Municipality) v. Cottrell.

[73] OTM Book 11 says crosswalks in urban areas must be marked at intersections where there is substantial conflict between vehicular and pedestrian movements. Pedestrian crossings may be marked at non-intersection points where substantial pedestrian movements occur or where a safe crossing point would not otherwise be obvious, particularly to children. It is open to the Court to find this appears to be the case in Durham (Regional Municipality) v. Cottrell based on evidence the Court finds credible and reliable following an R. v. W.(D.) (supra) analysis.

[74] OTM Book 11 says consideration should be given to installing crosswalks at 'uncontrolled' locations where vehicles would not otherwise stop. The presence of a marked pedestrian crossing may create a false sense of confidence on the part of pedestrians, particularly children, who may enter the crosswalk expecting that approaching drivers will see them and stop. It is open to the Court to find Mr. Gazarek, who had the right of way in a marked pedestrian crossing, had just such a false sense of security.

[75] OTM Book 11 says a discrepancy may exist between pedestrians' expectations and the expectations of approaching drivers who may not expect to find a pedestrian crossing at an 'uncontrolled location'.

[76] OTM Book 11 says if a crosswalk at an uncontrolled location is deemed necessary, its safety may be enhanced by the addition of advance markings, warning signs and illumination.

[77] The operative word is safety 'may' be enhanced by the addition of advanced markings, warning signs or illumination. The Court finds while there is no evidence before it of advance markings, warning signs or illuminations marking the crosswalk between the traffic island and the southwest corner of Kingston Road at Brock Road there would seem to be no requirement to do so according to OTM Book 11.

[78] The Court believes advanced markings, warning signs or illumination would be considered 'best practice' for this 'uncontrolled' pedestrian crossing.

[79] The description of this area, bolstered by the Court's finding that there was a pedestrian crossing at this 'uncontrolled' crosswalk meets:

a. part (a) of the definition of a crosswalk in as much as there are connections with the lateral lines of the sidewalk emanating from Kingston Road and

b. part (b) in that it was a portion of a roadway at an intersection or elsewhere that was distinctly indicated for pedestrian crossing by lines or other markings on the surface.

[80] The use of the word 'or' in section (b) of the definition would lead the Court to believe the legislation does not also require the area to be marked by advanced markings, warning signs or illumination. This is confirmed by the wording contained in the OTM Book 11.

[81] Had it been the intention legislators to do so the definition would have used the word 'and' rather than 'or' in part (b) to state, "…distinctly indicated for pedestrian crossing by signs 'and' by lines 'and' other markings on the road."

[82] The Highway Traffic Act is silent on 'controlled' and 'uncontrolled' pedestrian crossings and OTM Book 15 which the Court turns to for clarification cites 'uncontrolled' crossings as having white pedestrian crossing lines marked on the pavement but without pedestrian crossing signs or signals.

Court's Decision on Uncontrolled Crosswalk

[83] The Court concludes there were white painted 'pedestrian crossing' lines on the roadway between the southwest corner of Brock and Kingston Roads and the traffic island at this location for several reasons.

[84] Common sense would dictate that this is the only safe place for pedestrians to reach the protection of the pedestrian crossing lights and painted lines regulating both Kingston and Brock Roads. As per R. v. Calleja (supra), this Court agrees substance should trump form.

[85] The Court, bound by stare decisis, must follow the higher court's lead in R. v. Calleja (supra) in determining if a pedestrian had the legal right of way, and if so, determining if the motor vehicle driver has obeyed signs, road markings and/or lights that mark a pedestrian crossing, whether a crossover or crosswalk.

[86] The Court determines on the basis of the evidence it finds credible and reliable that Mr. Gazarek was a pedestrian at the place, time and date in question, and that he believed he had the right-of-way as he was crossing in a location pedestrians were expected to cross if they were to reach the safety of the traffic island in order to continue crossing either Brock Road or Kingston Road in an 'uncontrolled' pedestrian crossing. According to s. 144(28) of the Highway Traffic Act, Mr. Gazarek had lawfully entered the roadway in order to cross and therefore had the right of way over vehicles.

[87] It is equally clear Mr. Cottrell as a motorist was distracted momentarily and did not see Mr. Gazarek in the pedestrian crossing until it was too late.

[88] The Court's conclusion, based on its findings there was a white-painted pedestrian crosswalk on the road in this location -- albeit without pedestrian crossing signs – at the said date and time, therefore meets the Ontario Traffic Manual description of an 'uncontrolled' crosswalk.

[89] The Court's conclusion is bolstered by Mr. Gazarek's evidence of a 'curb cut' at the location which would allow for wheelchair access across the channelized right hand turn lane from Kingston Road onto Brock Road onto the traffic island.

[90] It stands to reason that this is the area in which the Regional Municipality of Durham on behalf of the City of Pickering intended pedestrians to cross to reach a 'controlled' pedestrian crossing involving white painted lines on the road and signalized pedestrian and vehicular traffic lights.

[91] It is open to the Court to find on the basis of the evidence it determines credible and reliable following an R. v. W.(D.) (supra) analysis to find this was an 'uncontrolled' crosswalk as defined by OTM Book 15, given the curb cut and continuing lateral lines from the southwest curb of Kingston Road and the white pedestrian crossing lines painted on the road between the southwest corner of Kingston Road and the traffic island.

[92] It is open to the Court, given these elements, to find there is a crosswalk at this location within the meaning of the Highway Traffic Act and it is open to the Court to find the prosecution has established a prima facie case on the offence of failing to stop for a pedestrian at a crosswalk contrary to s. 144(7) of the Highway Traffic Act.

Absolute or Strict Liability Offence?

[93] There would seem to be some dispute as to whether this is an absolute or strict liability offence.

[94] R. v. Kelleher, 2009 ONCJ 54 determined the offence of failing to stop for a pedestrian in a crossover contrary to s. 140(2) of the Highway Traffic Act to be an absolute liability given Ontario's legislature could easily have made the offence one of strict liability by employing statutory language which mentioned due diligence or reasonable care. Use of the imperative "shall" suggests an absolute liability offence. Therefore a conviction follows if the prosecution successfully proves the prohibited act beyond a reasonable doubt.

[95] It stands to reason following R. v. Kelleher (supra) that the offence of fail to yield to pedestrian in crosswalk contrary to s. 144(7) of the Highway Traffic Act may also be considered an absolute liability offence.

[96] There is conflicting case law from higher courts including R. v. Ta, 2008 ABPC 236, R. v. Del Rosario, 2011 ABPC 294, and R. v. Gill, 2012 ONCJ 473, that take the opposing view point.

[97] In Binus v. R., paragraph 19 speaks of the test to be applied: "I am persuaded that an objective test best comports with the object and the language of the prohibition and with its setting in the scheme of offences of which it is a part. I do not, however, regard the offence as one of absolute prohibition, admitting of no defenses (except possibly one based on the contention that the accused was not driving)."

[98] Binus v. R. (supra) continues, "It is not, in my opinion, enough to establish that an accused in fact drove in a manner dangerous to the public if at the same time he has not departed from the standard of conduct expected of a careful driver in the circumstances. For example, a driver may injure pedestrians or other motorists in trying to bring to a stop a car whose brakes have suddenly failed, although he had just had them inspected and they had been found in good working order. Again, he may be misled by a turned traffic sign in driving the wrong way along a one-way street and thus endanger others thereon. Or, a person's driving may endanger others by reason of an error of judgment in turning one way rather than another when confronted by an emergency arising from the sudden action of others. … As in other types of cases, the unanswered evidence of the prosecution may be sufficient to support an adverse finding beyond a reasonable doubt; but defence evidence of prudence may remove any basis for such a finding."

[99] Stare decisis requires this Court to follow the findings of higher court decisions in finding the offence of driver fail to yield to pedestrian in crosswalk contrary to s. 144(7) of the Highway Traffic Act to be a strict liability offence.

Defence of Due Diligence?

[100] As such, upon establishment of a prima facie case by the prosecution, it becomes open to the defendant to prove due diligence on a balance of probabilities. Simply put, did Mr. Cottrell do what a reasonable driver would have done in a similar set of circumstances?

[101] There was no defence of due diligence by the defendant's agent, and no reasonable inference could be drawn from the facts as to the defendant's diligence, as per R. v. Krupa, [2002] O.J. No. 1650, which also involved a charge of driver fail to yield to pedestrian in crosswalk contrary to s. 144(7) of the Highway Traffic Act.

[102] Having considered the evidence, the exhibit and submissions the Court finds Mr. Cottrell not guilty of the offence as charged under s. 140(1)(a) of the Highway Traffic Act.

[103] It is open to the Court to find on the evidence it does accept, based on an R. v. W. (D.) (supra) analysis, that the defendant is guilty beyond a reasonable doubt of the included offence of failing to stop for a pedestrian in a crosswalk contrary to s. 144(7) of the Highway Traffic Act.

Released: October 07, 2013

"Justice of the Peace R.J. Le Blanc"