Court File and Parties

Court File No.: Halton - Milton 1260-9520659B Date: 2014-11-25 Ontario Court of Justice

Between: Her Majesty The Queen — AND — Lovejot Malhi

Before: Justice of the Peace Kenneth W. Dechert

Heard on: May 16, 2014 and July 30, 2014

Reasons for Judgment delivered orally on: November 25, 2014

Provincial Offences Court – Milton Ontario

Counsel:

J. Stewart, for the prosecution
M. Hans, for the defendant Lovejot Malhi

Statutes, Regulations and Rules Cited

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, s. 144(18)

Cases Cited

K.W. DECHERT, J.P. (orally)

Introduction

[1] In this case, Lovejot Malhi stands charged that he, on the 19th day of September, 2013, at Guelph Street and Mill Street in the Town of Halton Hills, did commit the offence of red light-fail to stop, contrary to section 144(18) of the Highway Traffic Act.

[2] The trial of the subject charge commenced before me on May 16, 2014, when I received the testimony of the prosecution witnesses, Thomas Contini, Nelson Barber, Frank Logue and Police Constable Maria Smorjevskaia. The trial continued on July 30, 2014, when I received the testimony of Lovejot Malhi and the final submissions of the parties. The matter was then adjourned until November 25, 2014, for my judgment.

[3] In this proceeding, I am asked to determine whether the totality of the evidence establishes Mr. Malhi's guilt on the subject charge, beyond a reasonable doubt. In that regard, I must remind myself that the defendant is presumed innocent until proven guilty, that the prosecution bears this burden of proof throughout the trial and that it never shifts to the defendant.

[4] Based upon the undisputed evidence in this proceeding, the following elements of the subject offence have been established, beyond a reasonable doubt:

That on the date and time in question, Lovejot Malhi was driving a motor vehicle in an easterly direction on Guelph Street approaching its intersection with Mill Street, in the Town of Halton Hills.
That at the relevant time, the flow of traffic for all directions within this intersection was governed by traffic control signals.

[5] The central issue in this proceeding is whether or not the motor vehicle being driven by Mr. Malhi at the material time, entered the said intersection while facing a red traffic light.

[6] The prosecution evidence supports the proposition that at the material time, Mr. Malhi entered the intersection on a red light. Mr. Malhi denies this allegation. He asserts that he entered the intersection while facing a green light. Accordingly, in assessing the credibility of the conflicting evidence relative to the said issue, I am obliged to apply the principles enunciated in the case of Regina v. W.(D.).

The Law

[7] Subsection 144(18) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as "the Act", reads as follows:

Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and not proceed until a green indication is shown.

[8] In its decision in Regina v. Kurtzman (1991), the Ontario Court of Appeal categorized the offence of red light-fail to stop, as one of absolute liability. Accordingly, if the prosecution succeeds in proving that the defendant committed the prohibited act beyond a reasonable doubt, then the mental element of negligence is automatically imported into the offence and it is not open to him to exculpate himself by showing that he was free of fault.

[9] As stated above, since the issue of the credibility of witnesses is important in this case, I must remind myself that the concept of reasonable doubt applies to the assessment of credibility and that the issue of the guilt or non-guilt of the defendant must not be based on a credibility contest between the prosecution and defence witnesses. These propositions of law were articulated by Cory J. in the Supreme Court of Canada decision in R. v. W.(D.). The jurist went on to state how a jury should be instructed on the issue of credibility assessment in a criminal proceeding, in part, as follows:

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. 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. …

… 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 a 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.

[10] In Regina v. Hull, at para. 5, a panel of the Ontario Court of Appeal made, in part, the following comments relative to the application of the W.(D.) principles:

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 the 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. …

[11] In Regina v. Dinardo, at para. 23, Charron J. defined the "substance" of the W.(D.) instruction, as follows:

…In a case that turns on credibility, … , 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. …

[12] In Regina v. Lifchus, Cory J. defined the term "reasonable doubt", in part, as follows:

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.

The Evidence

(i) The Testimony of Thomas Contini

[13] During his testimony-in-chief Mr. Contini stated that at approximately 7:30 p.m. on the date in question, he was driving his motor vehicle in a northerly direction on Mill Street approaching its intersection with Guelph Street. He indicated that the flow of northbound traffic at the intersection was controlled by traffic control signals and that when he entered the intersection he was facing a green traffic light. He testified that once his vehicle had entered the south side of the intersection, it was struck by a motor vehicle travelling in an easterly direction on Guelph Street, which was being operated by Mr. Malhi.

[14] Mr. Contini testified that in colliding with his vehicle within the boundaries of the intersection, Mr. Malhi's vehicle "glanced off" the front of his car and eventually stopped "about 30 to 40 yards through the intersection on the other side". Mr. Contini stated that as a result of the collision, his vehicle sustained damage to its entire front end.

[15] Mr. Contini noted that as he was approaching the subject intersection, he reduced his speed until the traffic light facing him turned green. He stated that once the light turned green, he proceeded into the intersection at a rate of speed of 20 kilometres per hour in the 40 or 50 kilometres per hour speed zone.

[16] Mr. Contini testified that the eastbound portion of Guelph Street, just west of its intersection with Mill Street, was comprised of a single through lane and a left-turn lane. He was not able to recall whether there were any eastbound vehicles on Guelph Street west of Mill Street, other than that driven by Mr. Malhi, at the time that he began to enter the subject intersection.

[17] During cross-examination, Mr. Contini reiterated his assertion that the traffic light facing him as he approached and entered the subject intersection was green. In this regard, he stated that as he was travelling in a northerly direction on Mill Street, he first noticed the green traffic light for his direction when he was located about 10 yards south of the intersection. At a later point in cross-examination he stated that he was about 15 to 20 yards south of the intersection when he observed the green light.

[18] When he was asked why he was travelling at a rate of speed of only 20 kilometres per hour in a 40 kilometres per hour speed zone, upon approaching and entering the intersection, Mr. Contini responded as follows:

That's just the way you approach an intersection. You approach it cautiously. And as I approached the intersection, I entered the intersection on a green light.

[19] Mr. Contini stated that he first noticed Mr. Malhi's vehicle when it collided with the front of his vehicle, noting that as he went into the intersection, the right side of Mr. Malhi's vehicle "glanced off" the front of his vehicle. In this regard, he stated that Mr. Malhi's vehicle struck his vehicle immediately after he had entered the intersection.

(ii) The Testimony of Nelson Barber

[20] During his testimony in chief, Mr. Barber stated that on the date and time in question, he and his spouse were standing on the southwest corner of the intersection of Guelph Street and Mill Street waiting for the red light to turn green, so that they could walk in an easterly direction across Mill Street. He stated that as he was standing at the corner he observed an eastbound motor vehicle on Guelph Street enter the intersection on a red light. He noted that once the said motor vehicle "went through" the red light, it was struck "in the rear end by another vehicle going north on Mill Street". He advised that following the time of the collision he had occasion to speak with the driver of the eastbound vehicle, who he identified in court as Mr. Malhi.

[21] Mr. Barber testified that he was very familiar with the subject intersection as he would regularly cross that intersection. He advised that the traffic control signal for eastbound traffic on Guelph Street at the intersection, involved an advanced green light to allow vehicles to turn left onto northbound Mill Street. He indicated that the traffic lights for north/south traffic on Mill Street would be red whenever east/west traffic on Guelph Street was facing any form of a green light.

[22] Mr. Barber testified that at the time of the collision he observed that the traffic lights governing north/south traffic on Mill Street were green.

[23] In describing the events immediately prior to the time of the collision, Mr. Barber stated that he and his spouse were standing on the corner of the intersection waiting for the red light to turn green in order to cross Mill Street from west to east. He advised that at that time he heard Mr. Malhi's vehicle travelling eastbound on Guelph Street, approaching the subject intersection from behind him. He stated that he did not turn around to look at this vehicle because he was focussed on the red light in front of him. He indicated, however, that based upon the sound emanating from Mr. Malhi's vehicle, he knew that the vehicle was not slowing down for the red light it was approaching. He noted that the northbound vehicle collided with Mr. Malhi's vehicle shortly after his vehicle had entered the subject intersection against the red traffic light.

[24] During cross-examination, Mr. Barber testified that he first observed Mr. Malhi's eastbound vehicle "when it got hit; when it went through the intersection", stating that at that time the traffic control signal governing eastbound traffic was red. Mr. Barber reiterated his testimony in chief that at the time of the collision he was standing on the southwest corner of the subject intersection waiting for the red light for eastbound traffic to change to green, so as to permit him to walk across Mill Street in an easterly direction.

[25] He advised that when Mr. Malhi's vehicle entered the intersection, the traffic lights for eastbound traffic were red. He testified that he observed Mr. Malhi's vehicle being struck by the northbound vehicle on Mill Street, in the middle of the intersection. He advised that he remained at the southwest corner of the intersection until the traffic light governing eastbound traffic turned from red to green.

(iii) The Testimony of Frank Logue

[26] Mr. Logue testified that on the date and time in question, he was driving his motor vehicle northbound on Mill Street approaching a red traffic light facing him at the intersection of Mill Street and Guelph Street. He stated that at that time, there were two motor vehicles in front of him.

[27] Mr. Logue testified that he stopped his vehicle behind the two cars in front of him, in deference to the red traffic signal. He stated that once the light turned green, he followed the two cars in front of him to the intersection and then turned right onto Guelph Street. He estimated that the traffic control signal governing northbound traffic on Mill Street would have been green for about two to three seconds before he entered the intersection. He advised that he then travelled on Guelph Street for a distance of approximately 200 feet when he heard a loud bang. When he looked in his rear-view mirror, he realized that a motor vehicle collision had taken place in the middle of the said intersection.

[28] Mr. Logue testified that at that time he turned his vehicle around and returned to the vicinity of the collision where he met with Mr. Malhi and engaged in a conversation with him. At that time he observed Mr. Malhi's vehicle in the eastbound lane on Guelph Street, facing in a westerly direction.

[29] During cross-examination, Mr. Logue testified that as he was travelling northbound on Mill Street approaching the green light facing him at the subject intersection, he could not recall the presence of any vehicles behind him. He stated that after he had made his right turn onto eastbound Guelph Street, he travelled a distance of approximately 150 to 200 feet, before he heard the loud bang associated with the said motor vehicle collision. He stated that between ten and fifteen seconds had expired between the time that the traffic light for northbound traffic on Mill Street turned green and the time that he heard the loud bang related to the collision.

(iv) The Testimony of Police Constable Maria Smorjevskaia

[30] Constable Smorjevskaia testified that on September 19th, 2013, she had occasion to investigate the collision between the motor vehicles operated by Thomas Contini and Lovejot Malhi in the intersection of Mill Street and Guelph Street, in the Town of Halton Hills. She proffered her evidence in this proceeding with the assistance of her investigative notes made contemporaneously with the subject events, for purposes of refreshing her existing memory.

[31] In describing the area of the intersection of Guelph Street and Mill Street on the subject date, Constable Smorjevskaia noted that Guelph Street ran east and west, with one eastbound lane and two westbound lanes. She stated that Mill Street was a north/south highway with one lane in each direction. She went on to state that the subject intersection was controlled by traffic lights governing the flow of traffic in all directions and that the posted speed limit on both Guelph Street and Mill Street was 50 kilometres per hour.

[32] Constable Smorjevskaia testified that upon arriving at the scene of the collision, she observed that the motor vehicle operated by Mr. Malhi was situated 20 to 30 metres east of the subject intersection and the vehicle operated by Mr. Contini was located on Guelph Street, close to its intersection with Mill Street. She noted that Mr. Malhi's vehicle had sustained damage to its right rear side near the wheel well and that Mr. Contini's vehicle had sustained extensive damage to its front end.

[33] Constable Smorjevskaia testified that following her two-hour investigation of the subject collision, she laid a charge of red light-fail to stop against Lovejot Malhi. Furthermore she stated that as part of her investigation she watched the traffic lights at the subject intersection for a period of approximately 30 minutes. In doing so she determined that the traffic lights at the subject intersection were working properly.

[34] In cross-examination, Constable Smorjevskaia stated that she did not take steps to time the traffic lights at the intersection, noting that all she did was observe the lights cycle.

[35] During re-examination, the officer testified that by observing the subject traffic lights, she was able to satisfy herself of the fact that when the traffic control lights for east/west traffic on Guelph Street were green, the lights for north/south traffic on Mill Street were red.

(v) The Testimony of Lovejot Malhi

[36] During his testimony in-chief, Mr. Malhi stated that on the date and time in question, he was driving a motor vehicle eastbound on Guelph Street approaching its intersection with Mill Street. He went on to state that upon entering the intersection, his vehicle was struck on its back right-hand side by another motor vehicle.

[37] In describing the said highways and intersection, Mr. Malhi testified that in travelling in an easterly direction on Guelph Street, he was travelling in the left lane of two eastbound lanes. He stated that at the relevant time, he was driving his vehicle at a rate of speed of approximately 55 kilometres per hour.

[38] Mr. Malhi testified that as he was driving his motor vehicle in the direction of the subject intersection, he noticed the existence of traffic control signals governing the flow of eastbound traffic at the intersection. He stated that the colour of the traffic light facing him both as he approached the intersection and as he entered it was green. His assertion in this regard was unequivocal.

[39] Mr. Malhi testified that he did not see any vehicles to his right upon entering the subject intersection. Furthermore he stated that he did not notice any vehicle turning right from Mill Street onto Guelph Street as he approached the subject intersection.

[40] During cross-examination, Mr. Malhi confirmed his testimony-in-chief that at the relevant time he was travelling in an easterly direction on Guelph Street, approaching its intersection with Mill Street, in the left lane of two eastbound lanes. While he acknowledged that the left lane was actually a left-turn lane, he stated that it was not simply a short lane which branched out to the left from the main through lane on the approach to the intersection, but was a dedicated eastbound lane from which one could turn left onto Mill Street.

[41] Mr. Malhi testified that at the material time he was using the left, eastbound lane as a passing lane and that as he approached the subject intersection, he did not have any intention of turning left off of Guelph Street onto Mill Street. He stated that at that time, as he was approaching the subject intersection, there were no vehicles beside him in the right, eastbound lane of Guelph Street, nor were there any vehicles travelling in front of him in the left, eastbound lane.

[42] Mr. Malhi testified that he first observed the traffic light governing eastbound traffic on Guelph Street at Mill Street, when he was approximately 20 to 30 metres east of the intersection. He indicated that at that time, the traffic control signal was green, noting that it did not change colour at any time prior to the time when he entered the intersection. In this regard, he stated that he observed the said traffic signal facing him to be green immediately before he entered the intersection, just a few seconds prior to being struck by the northbound vehicle.

[43] Finally, Mr. Malhi stated that he had a vague recollection of the presence of pedestrians standing on the southwest corner of the subject intersection, as he approached the intersection. When asked whether these pedestrians were crossing the street or waiting at the corner at the relevant time, he stated that they were waiting at the corner.

The Issue

Was Mr. Malhi facing a red traffic control signal when he entered the subject intersection?

[44] There is conflicting evidence before me on this issue. Accordingly, I am obliged to make findings as to the credibility of the various witnesses in this proceeding. Upon completing that task, I must then apply the principles articulated in W.(D.) in order to ensure that I have considered whether or not Mr. Malhi's guilt on the subject charge has been established by the totality of the evidence, to the standard of proof beyond a reasonable doubt.

(i) The Credibility of the Witnesses

[45] In my view the assessment of the credibility of a witness should include a determination of both the honesty or genuineness of the witness' testimony and its apparent reliability. Accordingly, it is incumbent on a trier of fact to consider the credibility of a witness' testimony in the context of his/her opportunity to observe or hear the proffered evidence, his/her powers of observation and ability to recall details of the evidence and the internal and external consistency of the testimony. The importance of the external consistency of a witness' testimony in assessing the credibility of a witness was, in part, endorsed by O'Halloran J.A. in his decision in Faryna v. Chorny, through the following comments:

…The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. …

(a) Thomas Contini

[46] Mr. Contini testified in a forthright and concise fashion. There were no obstructions to his view of the subject intersection directly in front of him, as he operated his vehicle in a northerly direction toward the intersection and the traffic lights facing him at that intersection. He was therefore in a position to clearly see the colour of the traffic lights in front of him.

[47] His testimony pertaining to his actions in operating his vehicle on Mill Street approaching the subject intersection was both detailed and internally consistent. His assertion that he entered the subject intersection while facing a green light was confirmed by Mr. Barber and corroborated by Mr. Logue. Furthermore, his evidence was not shaken on cross-examination. Accordingly, Mr. Contini's evidence in this proceeding is consistent with the preponderance of the evidence in this proceeding and may properly be considered both genuine and reliable.

[48] On the other hand, Mr. Contini was not able to provide any direct evidence as to the actions of Mr. Malhi's vehicle at the subject time. He was not in a position to observe Mr. Malhi's vehicle as it travelled in an easterly direction on Guelph Street approaching the subject intersection and upon entering the intersection. He advised that he first observed Mr. Malhi's vehicle when it suddenly struck his vehicle immediately after he had entered the intersection. Accordingly, the probative value of Mr. Contini's evidence relative to the central issue of whether Mr. Malhi was facing a red traffic control signal when he entered the subject intersection, is significantly diminished.

[49] The defendant's representative argues that Mr. Contini's testimony that the traffic light facing him as he entered the subject intersection from the south was green, should not be considered credible. In this regard, the representative submits that Mr. Contini's evidence that he was travelling at a rate of speed of 20 kilometres per hour, in a 40 or 50 kilometres per hour zone, upon approaching the green traffic light, is illogical, noting that it is consistent with a circumstance where Mr. Contini was slowly approaching a red traffic light at the intersection, waiting for it to turn green.

[50] I disagree with the argument of the defendant's representative in this regard. I am of the view that Mr. Contini provided a plausible explanation for his actions in driving his vehicle at a rate of speed of 20 kilometres per hour at the time, noting that he was simply approaching the green light at the intersection cautiously. His explanation in this regard is credible and reliable given the fact that he was only 10 to 20 yards south of the intersection when he noticed that the traffic light facing him was green.

(b) Nelson Barber

[51] I have found Mr. Barber's testimony relative to the central issue in this proceeding to be both credible and reliable.

[52] Mr. Barber is an independent witness. At the material time, he was standing on the southwest corner of the subject intersection, where he had an unobstructed view of the subject intersection. He had a vivid memory of the relevant events in this proceeding, which he communicated in a detailed and unequivocal fashion.

[53] It is important to note that Mr. Barber was the only witness in this proceeding who was able to indicate the colour of the traffic lights facing both Mr. Malhi and Mr. Contini at the material time. Furthermore, Mr. Barber's testimony that Mr. Malhi entered the subject intersection from its west side when the traffic light facing him was red, made common sense, since Mr. Barber was waiting for that same traffic light to change to green when he observed Mr. Malhi's vehicle enter the intersection. Mr. Barber noted that the traffic signal for eastbound traffic remained red well after the time that Mr. Malhi entered the intersection and collided with Mr. Contini's vehicle.

[54] Finally, it is noted that Mr. Barber's testimony was both internally consistent and consistent with the preponderance of the evidence in this proceeding. Furthermore, the strength of his independent testimony was not diminished as a result of cross-examination.

(c) Frank Logue

[55] Mr. Logue presented circumstantial evidence in this proceeding which served to corroborate Mr. Contini's evidence. He was clearly in a position to observe the events that he deposed to.

[56] While he testified from his memory, his evidence was delivered with confidence and precision. In particular, he was able to remember not only his actions at the material time, but the actions and locations of other vehicles and persons in the intersection on or before the time of the subject collision.

[57] Mr. Logue's testimony was both internally and externally consistent. It was not diminished in any way as a result of cross-examination. His testimony made common sense and it supported Mr. Contini's position that he had entered the subject intersection from its south side on a green traffic control signal.

[58] In my view it is logical that the traffic light for northbound traffic on Mill Street would continue to be green some ten to fifteen seconds after Mr. Logue first observed the light turn from red to green. Mr. Logue's evidence that Mr. Contini's vehicle collided with Mr. Malhi's vehicle some ten to fifteen seconds after he had travelled through the fresh green light, lends credence to Mr. Contini's assertion that Mr. Malhi's vehicle struck his vehicle immediately after he had entered the subject intersection on a green light.

[59] For the reasons stated above, I find Mr. Logue's testimony to be both genuine and reliable. It is consistent with and circumstantially supports the observations of both Mr. Contini and Mr. Barber as to the actions of Mr. Malhi's vehicle at the material time. Furthermore, Mr. Logue's verbal evidence is consistent with Mr. Barber's observations of Mr. Contini's vehicle at the time when Mr. Malhi was observed to enter the intersection against the red light.

(d) Police Constable Maria Smorjevskaia

[60] Constable Smorjevskaia attended the scene of the subject motor vehicle collision shortly after the time of the event and proceeded to conduct an investigation. She made notes of her investigation, contemporaneously with the time of the investigation, and relied on those notes during her testimony to refresh her existing memory.

[61] She was able to precisely inform the court as to the structure of the subject intersection, including the direction of the highways leading into and out of the intersection. Moreover she advised that during the course of her investigation, she studied the cycle of the traffic lights at the intersection to ensure that they were working properly.

[62] Her testimony was delivered in a clear and concise manner. It was internally consistent and not shaken on cross-examination. While her testimony pertaining to the number of eastbound lanes on Guelph Street and the design of the left-turn lane at the intersection differed from that of Mr. Malhi, it was, nevertheless, generally consistent with the testimony of both Mr. Contini and Mr. Barber.

[63] For the said reasons, I have found Constable Smorjevskaia's testimony to be both credible and reliable.

(e) Lovejot Malhi

[64] Mr. Malhi testified during this proceeding from his memory. He proffered his testimony in chief in a forthright manner. He did not appear to embellish or overstate his testimony and his testimony appeared to be internally consistent. Furthermore the genuineness of his evidence was not impeached through cross-examination.

[65] On the other hand, Mr. Malhi's testimony was inconsistent with the preponderance of the prosecution evidence relative to the structure of the highways leading into the subject intersection. For example, Mr. Malhi testified that at the relevant time he was travelling in an easterly direction in the left, passing lane of two eastbound lanes on Guelph Street approaching the subject intersection. During cross-examination Mr. Malhi acknowledged that the left lane was not a passing lane, but was a left-turn lane. Moreover, Constable Smorjevskaia testified that Guelph Street, west of the subject intersection was comprised of two westbound lanes and one eastbound lane. While I acknowledge that these inconsistencies do not in any way suggest that Mr. Malhi's testimony is disingenuous, they are germane to the issue of the reliability of the defendant's memory of the relevant events.

[66] Furthermore, while Mr. Malhi steadfastly denied the allegation that he entered the subject intersection against a red light, asserting that at the material time the light was green, his testimony lacked sufficient detail as to the circumstances leading up to his entry into the subject intersection to bolster the reliability of this assertion. For example, during cross-examination Mr. Malhi stated that he was approximately 20 to 30 metres west of the subject intersection when he first noticed the existence of a traffic control signal governing his direction of travel at the intersection. He failed to explain why he was not able to see the said traffic control signals at a location distant more than 20 to 30 metres from the intersection.

[67] Upon comparing Mr. Malhi's assertion that he entered the subject intersection while facing a green traffic signal, with the credible and reliable testimony of Mr. Barber corroborated by the evidence of both Mr. Contini and Mr. Logue, to the contrary, I find Mr. Malhi's assertion to be unreliable. In my view, the testimony of Mr. Barber is particularly compelling, given that he was able to clearly observe the colour of the traffic lights governing both east/west and north/south traffic at the subject intersection, from his optimal vantage point at the southwest corner of the intersection.

[68] In conclusion, I do not believe Mr. Malhi's exculpatory evidence however, I fully accept the honesty of his belief that he entered the subject intersection on a green light. On the other hand, the weight and quality of the prosecution evidence in this proceeding leads me to a rational conclusion that Mr. Malhi's belief in that regard is not accurate.

(ii) The Application of the W.(D.) Principles

[69] The second prong of the W.(D.) principles states that in the event that I do not believe the defendant's testimony I must consider whether his evidence, weighed in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Additionally, I am mindful of the principle that the issue of the guilt or non-guilt of an accused person should not be based upon a simple credibility contest between the prosecution and defence witnesses.

[70] As stated above, I have not accepted Mr. Malhi's assertion that he entered the subject intersection while facing a green light. I must now determine whether Mr. Malhi's evidence, considered in the context of the totality of the evidence, leaves me in a state of reasonable doubt as to his guilt of the subject charge.

[71] In finding Mr. Malhi's exculpatory evidence to be unreliable, I have compared his testimony to the direct and circumstantial evidence of the prosecution witnesses. I have rejected Mr. Malhi's evidence on the basis that I have accepted Mr. Barber's independent and reliable evidence that at the time that Mr. Malhi's vehicle entered the subject intersection, the traffic signals for north/southbound traffic were green and the traffic signals for eastbound traffic were red. Mr. Barber was the only witness in this proceeding who was able to testify as to the colour of the traffic lights for the two opposite directions at the material time. Furthermore, the credibility of Mr. Barber's observations was corroborated by the credible evidence of two other witnesses in this proceeding.

[72] As stated above, while I accept that the defendant harboured an honest belief that he was facing a green traffic control signal when he entered the intersection his testimony was clearly inconsistent with the totality of the credible prosecution evidence in this proceeding. Furthermore as stated above, I have found that Mr. Malhi's exculpatory evidence lacked sufficient particularity to be considered reliable on its own.

[73] In finding the defendant's evidence to be unreliable, I have rejected it. In doing so I have concluded that Mr. Malhi's evidence in this proceeding, considered in the context of the evidence as a whole, has failed to leave me in a state of reasonable doubt as to his guilt of the subject charge.

[74] I must now turn to the third prong of the W.(D.) principles and ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt, by that evidence, of the guilt of the accused. In this proceeding, I have found all of the prosecution evidence to be credible. That evidence leads me to only one factual conclusion; that at the relevant time Mr. Lovejot Malhi was facing a red traffic control signal, when he drove his motor vehicle into the subject intersection.

[75] Mr. Barber's uncontroverted testimony constitutes direct evidence of the fact that Mr. Malhi entered the subject intersection while facing a red signal light. He was able to observe the traffic lights for both eastbound and northbound traffic from his preferred vantage point and was able to unequivocally state that at the material time, Mr. Contini's northbound vehicle was facing a green traffic control signal.

[76] Furthermore, based upon Mr. Contini's testimony, as corroborated by Mr. Logue's circumstantial evidence and by Constable Smorjevskaia's direct evidence pertaining to the cycle of the traffic lights at the intersection, I am able to draw a logical inference that Mr. Malhi crossed over the western boundary of the subject intersection, just prior to the time of the motor vehicle collision, while facing a red traffic control signal.

[77] In conclusion therefore, I am convinced beyond a reasonable doubt, of the guilt of the accused of the subject charge. Accordingly I have found that the prosecution has met its burden in proving, beyond a reasonable doubt that at the material time and place Mr. Malhi was facing a red traffic control signal when he drove his vehicle into the subject intersection.

The Decision

[78] Lovejot Malhi is therefore found guilty of the offence of red light-fail to stop, contrary to subsection 144(18) of the Act, as charged.

Released: November 25, 2014

Signed: "Justice of the Peace Kenneth W. Dechert"

R. v. Malhi

Case Summary