Court File and Parties

Court File No.: Halton 3337542A Date: 2013-01-14 Ontario Court of Justice

In the Matter of: An appeal under Subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between: Ivan Calleja Appellant

— And —

Her Majesty the Queen Respondent

Before: Justice L.M. Baldwin

Heard on: September 7, 2012 and November 27, 2012

Reasons for Judgment released on: January 14, 2013

Counsel:

• Ms. Jan Stewart, for the Respondent
• Mr. G. Lewin (Paralegal), for the Appellant

BALDWIN, J.:

[1] Fundamental Issue

The fundamental issue in this appeal is whether the offence of 'Fail to Yield to Pedestrian' cited under section 140(1)(a) of the Highway Traffic Act is a different offence from 'Fail to Yield to Pedestrian' under s. 144(7) of the Highway Traffic Act.

[2] Definitions

These sections are set out in the Appendix of Definitions attached to this judgment.

Summary of Facts

[3] Certificate of Offence

On February 22, 2010, Ivan Calleja received a certificate of offence charging him with 'Fail to Yield to Pedestrian' contrary to s. 140(1)(a) of the Highway Traffic Act ("HTA").

[4] Trial Date and Representation

A trial on the merits of the charge was conducted on March 25, 2011, and the Appellant was present and represented by agent Mr. Frank Alfano.

[5] Uncontested Evidence

The uncontested trial evidence established that Mr. Ivan Calleja was operating a motor vehicle when he struck Mr. Witold Lukasik, who had the legal right of way as a pedestrian crossing Appleby Line at Fairview Street, in the City of Burlington on the morning of February 22, 2010.

[6] Pedestrian's Account

The evidence was that Mr. Lukasik was walking to his usual place of work just before 7:00 a.m. He was walking from east to west on Appleby Line. He approached the intersection which was controlled by traffic lights. He pushed the button to activate the pedestrian walk sign. He got the green light for the pedestrian to walk. He crossed into the intersection and halfway through he was struck by a car. He was airborne and when he fell he hit the car again before landing on the pavement. He was badly injured and taken to hospital.

[7] Police Response

Officer Bender received the dispatch call to attend the accident scene at 6:53 a.m. Fire was on scene attending to the victim who was taken to Joseph Brant Hospital.

[8] Accident Report

Officer Bender completed the required motor vehicle accident report.

[9] Intersection Description

Officer Bender described the intersection as follows:

"This is a very busy intersection in Burlington, Fairview Street and Appleby Line. Appleby Line has four lanes and has a left hand turning lane, a right hand turning lane on the southbound lane.

Appleby runs north and south and Fairview Street runs from east to west. Fairview Street is also four lanes with left turn lanes in the east and west (lanes).

This is directed by traffic lights and it is well lit by street light.

The (traffic) lights that day were functioning.

There are stopping lines for your vehicle to stop at the stop light and crosswalk lines.

There was no snow that I recall on the ground. It was a clear day. It was just breaking into daylight." (Transcript pp. 18, 19)

[10] Vehicle Position

The driver of the motor vehicle that struck the pedestrian had pulled over into the right hand lane in the northbound lane of Appleby Line. He was driving a SUV style vehicle.

[11] Direction of Travel

The car that hit Mr. Lukasik was turning from Fairview left towards Appleby.

[12] Admission

On scene, Mr. Calleja admitted striking the pedestrian to Officer Bender.

[13] Cross-Examination

No cross-examination of any of the witnesses was conducted and their evidence was unchallenged.

Motion for Non-Suit/Finding of Guilt

[14] Non-Suit Motion

A motion for a non-suit was brought at the conclusion of the prosecution's case. The motion was denied.

[15] Guilty Finding

No defence evidence was called. After hearing submissions, a finding of guilt was registered.

Appellant's Position

[16] Pedestrian Crossover Requirement

The Appellant argued that section 140(1)(a) specifies that a vehicle must yield the right of way to a pedestrian crossing at a pedestrian crossover.

[17] Evidence of Crosswalk

The evidence from the prosecution witnesses was that the pedestrian had been struck within a pedestrian crosswalk at an intersection controlled by automatic traffic lights and pedestrian control signals.

[18] Definition Challenge

The Appellant submits that the intersection where this event occurred does not meet the definition of a pedestrian crossover as set out in the HTA and Regulation 615 Sec. 20.1.

[19] Regulation 615

Regulation 615 sets out the requirements for road and highway signage.

[20] Pedestrian Crossover Signs

The various signs for pedestrian crossovers are described in section 20.1 through to 20.10.

[21] Correct Offence

The Appellant submits that the "offence charged" should have been under section 144(7) of the HTA, which requires drivers to yield the right of way to pedestrians lawfully within a crosswalk.

[22] Required Signs

Mr. Alfano directed the Court and the prosecutor to read Regulation 615 section 20.1 which he submitted describes three signs that are required for a pedestrian crossover to be established.

[23] Absence of Signs

Mr. Alfano submitted "There's no evidence of signs. All we have are the traffic control signals and a couple of road markings". (Transcript p. 34, 37)

Respondent's Position

[24] Broad Definition

The Respondent submits that the broad definition of a pedestrian crossover in the HTA subsumes the definition of a pedestrian crosswalk.

[25] Justice of the Peace's Consideration

The Respondent submits that the learned Justice of the Peace put his mind to this issue in both his rejection of the motion for non-suit and in his final reasons for finding the Appellant guilty.

[26] Justice of the Peace's Reasoning

His Worship stated in his reasons for judgment as follows:

"I repeat my previous comments that 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, as I said, immunity to a motorist who has clear obligations at such an intersection." (Transcript March 25, 2011 p. 44)

[27] Application of Crossover Definition

The Respondent submits that the application of a "crossover" would apply to any designated area in which pedestrians are directed to cross, whether that be at an intersection controlled by stop signs, or, at the entrances and exits to commercial properties, or across right turn merging lanes in advance of a signalized intersection. In other words, at any designated area other than a signalized intersection. (Factum p. 4)

Standard of Appeal in Part 1 Certificate Offences

[28] Powers of Court on Appeal

Section 138 of the Provincial Offences Act reads as follows:

(1) Powers of court on appeal – Upon an appeal, the court may affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial.

(2) New Trial – Where the court directs a new trial, it shall be held in the Ontario Court of Justice presided over by a justice other than the justice who tried the defendant in the first instance, but the appeal court may, with the consent of the parties to the appeal, direct that the new trial be held before the justice who tried the defendant in the first instance or before the judge who directs the new trial.

(3) Costs – Upon an appeal, the court may make an order under subsection 60 for the payment of costs incurred on the appeal, and subsection (3) thereof applies to the order.

[29] Amendment of Certificate

Pursuant to subsection 34(1) of the Provincial Offences Act, the court has a discretion at any stage of the proceedings to amend a certificate where it appears that the certificate fails to state or states defectively anything that is essential to charge the offence, does not negative an exception that should be negative, or is in any way defective in form or substance.

[30] Amendment During Trial

It is open to the court to amend a certificate during the course of the trial if the subject matter of the proposed amendment has been disclosed by the evidence.

[31] Broad Scope of Amendment

The scope of the remedial amendment provisions is quite broad.

[32] Considerations for Amendment

The court shall consider any evidence taken at trial, the circumstances of the case, whether the defendant has been misled or prejudiced, and whether the proposed amendment can be made without occasioning an injustice having regard to the merits of the case. The question as to whether or not an amendment should be granted or refused is a question of law.

Decision

Substance Trumps Form

[33] Nature of the Offence

The offence that the Appellant was charged with and found guilty of was 'Fail to Yield to Pedestrian'. The section number of the HTA provides the ingredients of the offence, but the section number is not the offence. One can be found guilty of 'Fail to Yield to Pedestrian' under either s. 140(1)(a) or s. 144(7) of the HTA.

[34] Irrelevance of Crossover vs. Crosswalk

I find that whether the pedestrian has been hit in a crossover or a crosswalk is irrelevant to whether or not the offence of 'Fail to Yield to 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.

[35] Essential Elements Proven

In this case, all essential elements of the offence were proven beyond a reasonable doubt.

[36] No Prejudice

There was no prejudice to the Appellant in being charged with reference to s. 140(1)(a) as opposed to s. 144(7) of the HTA.

[37] Identical Penalties

The penalties with respect to the fine amounts are identical under both sections.

[38] Amendment Authority

Furthermore, it was open to the learned Justice of the Peace to amend the certificate at any stage of the proceedings to reflect the more perfectly suited section of the HTA to s. 144(7), as this pedestrian was struck down at a lighted intersection. The prosecution did not request such an amendment. There would have been no error in law if such an amendment had been made. (reference R. v. Howse [2012] O.J. No. 3772, Judge Pugsley, Ontario Court of Justice)

[39] Amendment at Appeal Stage

It would be open to me to amend the certificate at this stage of the proceedings, but I find it unnecessary.

[40] No Error by Justice of the Peace

I conclude that the learned Justice of the Peace did not err in denying the motion for non-suit, nor did he err in finding the Appellant guilty.

[41] No Denial of Justice

There has been no denial of justice in this case.

[42] Rejection of Form Over Substance

The Appellant's position that form trumps substance is rejected.

[43] Appeal Dismissed

Accordingly this Appeal is dismissed.

Released: January 14, 2013

Signed: "Justice L.M. Baldwin"

Appendix of Definitions

"Pedestrian Crossover"

"Pedestrian crossover" is defined in s. 1 of the HTA as follows:

"pedestrian crossover means any portion of a roadway, designated by by-law of a municipality, at an intersection or elsewhere, distinctly indicated for pedestrians crossing by signs on the highway and lines or other markings on the surface of the roadway as prescribed by the regulations".

"Crosswalk"

"Crosswalk" is defined in s. 1 of the HTA as follows:

"crosswalk" means,

(a) 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.

Section 144(7)

Section 144(7) states that:

"When under this section a driver is permitted to proceed, the driver shall yield the right of way to pedestrians lawfully within a crosswalk.

"Intersection"

The term "intersection" is defined in s. 144(1):

"intersection" includes any portion of a highway indicated by markings on the surface of the roadway as a crossing place for pedestrians".