Court File and Parties

Court File No.: Cambridge 5491512A Date: 2013-01-22 Ontario Court of Justice

Between: R. — and — Douglas Quan

Before: Justice of the Peace M. A. Cuthbertson

Heard on: 27 July 2012

Reasons for Judgment released on: 22 January 2013

Charge: Fail to move over, if safe to do so, s. 159(3) HTA

Statutes cited: Highway Traffic Act, s. 159(3)

Counsel: D. Dyer for the prosecution A. Hamilton for the defendant

JUSTICE OF THE PEACE CUTHBERTSON:

1: THE BACKGROUND

[1] On 2 July 2011, at about 8:30 PM, Dr Quan was charged by OPP Sgt Gamble under s. 159(3) of the Highway Traffic Act (HTA). The place of the allegations was on highway 401 in the Township of Puslinch. There were three lanes on the highway, in the direction Dr Quan was travelling.

[2] Immediately prior to the traffic stop involving Dr Quan, Sgt Gamble had been dealing with another motorist whom she had stopped on the left shoulder of the highway next to Lane 1 (the fastest of the 3 lanes). At the time of the allegations before this Court, she had completed her investigation with the other motorist.

2: THE LAW

[3] Section 159(3) of the HTA states:

Upon approaching an emergency vehicle with its lamp producing intermittent flashes of red light or red and blue light that is stopped on a highway with two or more lanes of traffic on the same side of the highway as the side on which the emergency vehicle is stopped, the driver of a vehicle travelling in the same lane that the emergency vehicle is stopped in or in a lane that is adjacent to the emergency vehicle, in addition to slowing down and proceeding with caution as required by subsection (2), shall move into another lane if the movement can be made in safety. 2009, c. 5, s. 49.

3: THE EVIDENCE

3.1 The Evidence of Sgt Gamble

[4] Sgt Gamble testified that she had positioned herself while dealing with the motorist whom she had previously stopped, in such a manner that she could observe oncoming traffic while also completing that investigation.

[5] Her police cruiser was positioned behind this motorist's vehicle. The required emergency lighting, with intermittent flashing blue and red lighting, was activated while she was dealing with that motorist. She testified that about 10 to 11 approaching vehicles moved from Lane 1 to Lane 2 and even to Lane 3, as they approached the scene of her traffic stop and obviously saw the flashing emergency lighting on her cruiser. She noted that additional vehicles passed her position while in Lane 2 or 3.

[6] She stated that she had just got into her cruiser when she noticed in her rear view mirror, a silver Honda SUV style van approaching from her rear, in Lane 1. She observed that this motor vehicle was driving at approximately 100 kilometres per hour, which is the posted speed limit on that highway.

[7] The silver Honda van did not slow nor move to Lane 2. Meanwhile the emergency lighting equipment on her cruiser remained activated. The Honda passed her while remaining in Lane 1.

[8] The officer immediately after the Honda passed her, pulled out and got behind it with her emergency lighting still in operation. The Honda quickly moved to the right hand shoulder near an old service centre and stopped. Sgt Gamble approached the driver of the vehicle, who identified himself with an Ontario photo driver's licence. The driver was Dr Quan. In the van was a lady in the front passenger seat and children in the rear seats.

[9] Sgt Gamble completed her investigation of this incident and charged Dr Quan under s. 159(3) of the HTA.

3.2 The Evidence of Dr Quan

[10] Dr Quan testified that as he proceeded in Lane 1 through a left curve he saw the officer's vehicle on the left shoulder of the road about 100 to 150 metres in front of him. He acknowledged that the emergency lighting was activated on the vehicle. As the road was not straight in this area, his reaction time to this observation was reduced.

[11] Dr Quan stated that he was driving at about 100 kilometres per hour but he had no recollection of decreasing his speed while passing Sgt Gamble's vehicle.

[12] Due to the short reaction time and concerns over the safety of his family in the van, he did not feel it was safe to make a quick movement to his right, into Lane 2. This concern was enhanced by traffic which was behind him, in all lanes. Due to the short time frame he did not have time to do an over the shoulder visual check of oncoming vehicles. As well, he had no recollection of looking at his side-view mirror. However, he was confident there were no vehicles immediately to his right in Lane 2.

4: ANALYSIS

[13] There is much common ground between the parties in this matter. Jurisdiction, date and time, identity, and the facts that Dr Quan was operating a motor vehicle on a 3 lane highway in the same direction as Sgt Gamble's vehicle are not in dispute.

[14] The facts that the proper emergency lighting was producing intermittent flashes of red and blue light on Sgt Gamble's cruiser, which was parked on the left shoulder of the highway, as Dr Quan passed it immediately to its right in Lane 1, are not disputed.

[15] Finally, the fact that Dr Quan did not reduce his speed while passing the police vehicle is not contested.

[16] What was contested was whether Dr Quan could have moved from Lane 1 to Lane 2 in safety, while he passed the officer's vehicle.

[17] Prior to considering the contested issue, it is appropriate for this Court to consider the requirements of a motorist under s. 159(3), in these circumstances. The driver is required to:

(a) Slow down and proceed with caution, and

(b) Move into another lane if the movement can be made in safety.

[18] There is no evidence that Dr Quan drove erratically as he passed the police car. I also note that Sgt Gamble was inside her car when the defendant's van passed her. There was no action of Dr Quan while passing the police car, which provided any imminent hazard to Sgt Gamble herself, other than the proximity of his vehicle to her vehicle at highway speed. Therefore, in my view, there is no evidence that Dr Quan failed to meet the 'proceed with caution' requirement of the section. However, there is ample evidence, including his own admission that he did not slow down from his approximate speed of 100 kph, while passing the stopped police vehicle.

[19] As the reduction of speed and proceeding with caution were both required actions by the defendant, I need not consider whether Dr Quan could have safely moved into another lane.

5: DECISION

[20] The evidence leaves this Court with no reasonable doubt. By not reducing his speed when passing the police cruiser parked on the side of the road with its emergency lights flashing, Dr Quan breached s. 159(3) of the Highway Traffic Act.

[21] Therefore, a conviction will be registered.

Released: January 22, 2013

Signed: "Justice of the Peace M. A. Cuthbertson"