ONTARIO COURT OF JUSTICE

Between:

Her Majesty the Queen

— AND —

Fernando Lombardi

Before: Justice of the Peace S. Mankovsky

Heard on: January 21, 2014

Reasons for Judgment released on: February 21, 2014

Counsel and Representation

Mr. R. Patterson — Counsel for the prosecution

Mr. G. Faulkner — Agent for the defendant Mr. F. Lombardi

Mr. F. Lombardi — In person

JUSTICE OF THE PEACE Mankovsky:

1. Charge

[1] Mr. Lombardi is before this court charged with contravening Section 154(1)(c) of the Highway Traffic Act.

A. The Law

[2] Section 154(1)(c) states that:

Where a Highway has been divided into clearly marked lanes for traffic,

(c) any lane may designated for slow moving traffic, traffic moving in a particular direction or classes or types of vehicles and, despite section 141, where a lane is so designated and official signs indicating the designation are erected, every driver shall obey the instructions on the official signs.

B. Category of Offences

[3] I am satisfied that the offence is a strict liability offence so that the prosecution is required to prove all the elements of the offence beyond a reasonable doubt.

A strict liability offence provides the defendant with the right to a due diligence defence, and shifts the burden to the defendant to prove, that, on a balance of probabilities, the defendant took all reasonable care to avoid committing the offences. In its decision in R. v. Sault St. Marie (City), [1978] 2 S.C.R. 1299, Dickson J., writing for the Court stated with respect to the definition of a strict liability offence as:

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Este so referred to them in Hickey's case. (R. v. Hickey (1976), 29 C.C.C. (2d) 23 rev'd, 30 C.C.C. (2d) 416).

C. For the Prosecution

[4] Police Constable Susie Fassbender, Toronto Police Service testified that on June 20, 2013 she was on a work assignment in uniform at the intersection of St. Clair Avenue West and Keele Street. She was there in response to a community complaint to 11 Division regarding the right lane of two lanes at Keele Street, designated a right turn lane only. Apparently vehicles that travelled in that right lane were not turning right, as they were required to do, but were continuing straight through the intersection instead of turning right. Her sole purpose there was to enforce the traffic signs.

[5] She testified that on June 20, 2013 she checked the signs by proceeding eastbound on St. Clair Avenue West from Gunns Road which is the signalized intersection west of Keele Street in order to ensure that signs were properly posted to indicate the right lane was a right turn lane, and that the signs were clearly visible.

[6] Constable Fassbender advised that there were a number of signs and road markings designating the required right turn. There were two advisory signs; one situated 95 metres west of Keele Street, the other 60 metres west of Keele Street. Additionally she observed a third regulatory sign located 40 metres west of Keele Street. She testified that all three signs were clearly visible to eastbound traffic, to her as well as to traffic moving eastbound on St. Clair Avenue West.

[7] In addition to the three signs, there were two arrows painted on the roadway, about three metres in size, going up and to the right at 40 metres and at 20 metres west of Keele Street.

[8] Constable Fassbender testified further that it was a clear, warm day. The roads were dry. Traffic was moderate to heavy.

[9] She set up her enforcement on the south side of St. Clair Avenue West, at 20 metres east of Keele Street. She stood on the sidewalk watching eastbound traffic.

[10] At about 9:28 a.m. at about 60 metres from her position, she observed a motor vehicle, west of Keele Street in the right turn lane travelling eastbound St. Clair Avenue West. The vehicle continued eastbound towards Keele Street, crossed the white stop line, and entered the intersection. However, she testified, instead of making the required right turn, the vehicle continued east of Keele Street in the one lane on the east side of Keele Street.

[11] Constable Fassbender testified that she didn't lose sight of the vehicle at any time. She stepped out into the roadway and directed the driver to pull into a parking lot on the south side of St. Clair. The driver was the sole person in the vehicle.

[12] Constable Fassbender was satisfied with the driver's identification, a valid Ontario driver's licence that had on it a digitized photograph that matched the person before her. The driver identified himself as Fernando Lombardi, the defendant before the court.

[13] The driver provided the ownership and proof of insurance. Constable Fassbender testified that she compared the licence plate indicated on the ownership with the plates on the vehicle. The numbers corresponded.

[14] Constable Fassbender charged the driver with the charge before the court.

[15] On cross-examination by Mr. Faulkner, Constable Fassbender testified that she didn't make a note of specific details of the defendant's vehicle.

D. For the Defence

[16] Mr. Fernando Lombardi testified in his own defence. He testified that he was coming from a house at 88 Mulock Avenue that is south on Keele on the left hand side. He testified that he left the house and came north to the stoplights on St. Clair where he "hung a right" going eastbound and that's where the officer stopped him.

[17] Mr. Lombardi testified that he was not travelling eastbound on St. Clair approaching Keele.

[18] Mr. Patterson cross-examined Mr. Lombardi. In the course of the cross-examination, Mr. Lombardi testified, with respect to what he did upon arriving at St. Clair Avenue West:

[19] "I got there, I stopped, I hanged the left."

[20] Mr. Patterson responded saying: "…I was just confused because you just said you hung a left. Did you turn left or right?"

[21] Mr. Lombardi replied that he would repeat what happened. He then said he was going north on Keele to St. Clair. He "hanged the right" on St. Clair, travelling eastbound and the officer stopped him.

E. Summation for the Defence

[22] Mr. Faulkner summarized for the defence that there were similarities in the testimony of both witnesses, but two variations. First, Mr. Lombardi testified that he was travelling northbound on Keele Street, and made a right turn to travel eastbound on to St. Clair Avenue West. Further, Constable Fassbender had no recollection as to the type, colour, or size of the vehicle the defendant was driving. Absent these details from her testimony, the court should reasonably doubt as to whether at 60 metres west of the intersection she actually observed the defendant's vehicle, or another vehicle.

F. Summation for the Prosecution

[23] Mr. Patterson summarized for the prosecution saying that the officer's testimony was detailed with respect for her reason for being at the location. Specifically, she was there to enforce a specific traffic complaint. She set up her enforcement in such a way as to have a clear view of the intersection. She described the relevant signage, the posting of the signage, and other specific details relating to the road markings.

[24] In response to the position of the defence with respect to the absence of testimony on the description of the vehicle as to make, model, colour, etc., the prosecutor argued that the officer identified a motor vehicle. It never left her sight during the time she observed it to the time she stopped the vehicle. The offence

[25] In the face of contrary testimony, the court should accept the testimony of the prosecution witness. In his submission, the prosecutor stated further that it defied logic to conclude that the officer would make the type of error alleged by the agent for the defence.

G. Analysis

[26] Officer Fassbender testified in a clear, articulate and logical manner as to the purpose of the enforcement, her preparation in advance of undertaking the specific enforcement assignment, including checking and verifying the signage and specific road markings in the area. She was satisfied with the identification provided by the defendant. She was satisfied that the vehicle belonged to the defendant by checking the licence plate noted on the ownership presented to her by the defendant against the licence plates that were mounted on the vehicle, determining that they were the same. She testified that it was a clear day with no reason by way of the weather conditions to draw an ambiguous or erroneous conclusion with respect to her identification of the vehicle that had remained within her sight from the time she saw it travelling eastbound in the designated right turn lane on St. Clair Avenue West until she stopped the vehicle after it crossed Keele Street without turning right.

[27] Mr. Lombardi testified on his own behalf in a generally clear, confident and coherent manner. However, the court heard specific statements in his testimony that diminished the credibility of his testimony. Specifically, he testified that he was travelling north on Keele Street and turned right at St. Clair. He also testified in cross-examination by Mr. Patterson that he was travelling north on Keele Street and turned left at St. Clair. Those specific contradictory statements raised the question in the court's mind as to whether he turned neither right nor left, but indeed travelled along St. Clair Avenue West, in the right lane designated for turns to the right, and instead of making the turn, crossed St. Clair at Keele Street to be stopped by Constable Fassbender just past the intersection.

[28] From my review of the totality of the evidence submitted at trial, I am satisfied that Constable Fassbender did not err in her observation and identification of the vehicle that committed the offence. I am satisfied that Constable Fassbender correctly identified the vehicle as the vehicle driven by the defendant.

[29] In applying the test in R. v. W. (D.), [1991] 1 S.C.R. 742, I find that Mr. Lombardi's testimony was not credible. I do not believe him. Furthermore I am left with no reasonable doubt by the evidence of the defendant or by all the other evidence I do accept.

[30] I am left with no doubt as to the defendant's guilt. I accept the evidence submitted by the prosecution.

H. Finding

[31] Having considered the totality of the evidence, the prosecution has proven all the elements of the offence before the court beyond a reasonable doubt.

[32] There is no evidence that the defendant acted with due diligence.

[33] Accordingly I find the defendant guilty of contravening Section 154(1)(c) of the Highway Traffic Act.

I. Submissions on Penalty

[34] I invite Mr. Prosecutor first, followed by Mr. Faulkner, agent for the defendant, Mr. Lombardi, to make submissions on penalty.

S. Mankovsky

Justice of the Peace

Province of Ontario