Court File and Parties

Court File No.: Central East – Newmarket – 4961-999-6024104z, 4961-999-6024105z, 4961-999-6024160z

Date: 2015-05-07

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Yonghe Niu

Before: Justice P.N. Bourque

Reasons for Judgment

Released on May 7, 2015

Counsel:

• Volga Pankou, for the Crown
• Yonghe Niu, Self-Represented

BOURQUE J.:

Overview

[1] The defendant appeals his convictions before Justice of the Peace A. Malik on June 16, 2014. He was found guilty of three offences and has appealed all of them. In the course of hearing oral argument before me, the Crown sought leave to withdraw two of the charges (Not valid permit (7)(1)(a) HTA and entire plate not plainly visible (13)(2) HTA), and that left the charge of disobey a sign under section 182(2) of the Highway Traffic Act ("HTA").

[2] The essential ground of appeal raised by the defendant (and his defence at trial), was that the signs that he disobeyed were placed in locations, where, in the circumstances of the traffic on that day, he could not see them and thus was unaware that he was breaking the law. He asserts that he was precluded from proceeding with this defence as he was not allowed the opportunity to have an adjournment to have pictures of the locale taken by him removed from his cell phone and printed. He therefore was unable to present his evidence that the signs were not in any visible locations, and further he was hindered in his cross-examination of the police officer, as to the number of vehicles he had stopped for this offence while he was processing the defendant for this offence, and thus may have confused the facts of this investigation with other matters.

[3] The appellant represented himself at the trial and all his evidence and questions and submissions were made through an interpreter.

The Trial

[4] In the trial of this action, the evidence was given by a police officer that at the intersection of 16th Avenue and Longwater Chase, there is a prohibition on making a left-hand turn from westbound on 16th Avenue to southbound Longwater Chase (page 8 lines 29-32, page 9 lines 1-8). This prohibition is only valid from 7 a.m. to 9 a.m. Monday to Friday. At all other times a left turn is allowed and, in fact, there is a middle turn lane from westbound 16th Avenue to southbound Longwater Chase. There are also two lanes westbound and two lanes eastbound on 16th Avenue (page 12, lines 7-21).

[5] The officer testified that there are two signs which are posted and he stated that "they are clearly visible". It is that assessment by the officer that the defendant sought to challenge with his photographs.

[6] Filed as Exhibits 1 "A" TO 1 "E" on this appeal were a series of photographs taken by the defendant a few days after the incident and some photos taken several months after the incident. These photographs were filed with the consent of the Crown on this appeal. Exhibit 1 "A" and 1 "B" show the sign described by the officer as on the south side of 16th Avenue at the entrance of Longwater Chase. It is clear from the said exhibits that this sign does not face the traffic coming westbound on 16th Avenue (the direction of travel of the defendant). In direct contradiction to the officer's assertion that the signs are "clearly visible", it is apparent that such a clear visibility for this sign would only be apparent to a person after he was well into his turn on Longwater Chase. Any observer would be confirmed in this belief after reviewing Exhibit 1 "C". The sign referred to by the officer has subsequently been removed from its position facing north and is now facing in a Northwest direction and would be more observable from a car proceeding westbound on 16th Avenue.

[7] With regard to the other sign, the officer describes it as being on the north side of 16th Avenue about 50 meters east of Longwater Chase, facing westbound direction of traffic (page 9, lines 8-10). With regard to the assertion of the officer that this sign was visible, the appellant filed on this appeal Exhibits 1 "D" and 1 "E". The first shows a view forward, westbound on 16th Avenue from inside a car in the left or passing lane of 16th Avenue. There is no observable sign as described by the officer. Exhibit 1 "E" shows the sign that apparently was present at the time of the incident and it also shows that subsequent to the incident, a further sign has been posted closer to the intersection and the new sign is posted higher than the single previous sign.

[8] The appellant submits that while he accepts the Crown's assertion that both signs were indeed where the officer stated they were, neither were in a position which allowed this appellant to see them (he testified that he did not see them before commencing his turn). In his cross-examination of the officer, who asserted that the sign at 16th Avenue and Longwater Chase was facing towards westbound traffic (page 21 lines 19-20 and page 23 lines 6-17), the appellant asserted to the officer that it was not correct.

[9] In his evidence, the defendant asserted this position and asked to show the pictures (now produced on this appeal) on his cell phone. The Crown prosecutor immediately objected by saying "Unless you want to enter your phone in as an exhibit" (page 25 lines 15-20). The defendant then asked to be allowed to get the pictures printed and come back another day to continue. The Crown objected immediately. The court stated that "I'm not calling the officer again and again and prolong this trial. This is simple matters" (page 26 lines 17-20). Instead the Court asked the appellant to show his phone pictures to the crown. What then ensues is some four transcript pages (pages 27 to 30) with various descriptions from the Crown and questions from the Court and it is not at all clear as to what they are talking about, as none of the pictures on the phone were made exhibits (no adjournment was granted for this purpose).

[10] In his evidence, the appellant was extensively cross-examined about the signs. He denied seeing any of the signs until he had nearly completed his turn onto Longwater Chase. The appellant also pointed out that he was probably not alone in making that error as there were 6 other vehicles also making the wrong turn. (page 36, lines 1-5). This was the area that he was precluded from cross-examining the officer about.

[11] In his reasons for judgment, the court accepted in its totality the evidence of the officer about the visibility of the signs and totally rejected the defence evidence and described it as "not acceptable" (page 44, lines 10-11). The Justice of the Peace went on to comment on the officer's evidence in the following terms:

. . . I find the officer's evidence more credible and trustworthy for the simple reason that officer had no reason to fabricate any evidence to that fact. He is a law enforcement officer, his career is right in front of him and they're not supposed to make up the stories, otherwise, they'll face the disciplinary actions. . .

[12] While this comment is in reference to another count that the defendant was found guilty, and one of which has since been withdrawn, it in my opinion at its least, puts an onus (an almost impossible onus, I would think) of trying to attack the credibility of the police officer. What chance does any defendant stand in any criminal or quasi criminal charge if he can only succeed by overcoming such a mountainous burden?

[13] In any event, the appellant was not making a direct attack on the integrity of the officer, but only suggesting that in the midst of processing so many accused motorists at the same time, he may have become confused. In that sense, I would have to find that the Justice of the Peace has misapprehended the evidence.

[14] In my opinion, the failure of the Justice of the Peace to allow an adjournment to allow the defendant to properly present his photographic evidence was an overriding and palpable error. I now have that evidence before me. The evidence, in my opinion, could clearly have the potential of allowing a trier of fact to come to a different decision in the case. The only question for me to decide is whether I can and should assess the new evidence in light of the other evidence and render a decision, or remit the matter back to the Provincial Offences Court for a re-trial.

The Standard of Proof

[15] The actus reus of the offence is to "disobey a sign". As stated in R. v. Kurtzman, "Highway Traffic Act are, prima facie, offences of strict liability, and that absolute liability offences will be exceptional and will only be recognized in the face of clear legislative direction. The section creates an offence of strict liability, however, then an accused may raise a defence that he or she took all reasonable care in the circumstances." While failure to stop at a "STOP" sign is probably an offence of absolute liability, I can find no binding authority that any possible signs posted on a highway would also be absolute liability.

[16] I think in this case whether or not the sign would reasonably be visible to a user of the road actually goes to the actus reus of the offence, that is the disobedience of a sign. It is clear from the facts of this matter that the evidence proffered by the defendant on this appeal could lead any reasonable trier of fact to the conclusion that such signage was not visible to any person proceeding to make a left turn from the centre lane, with no sign facing the driver "at the intersection" where the left turn (at that time of day) was prohibited. It is not enough for a defendant to simply say that he did not see the sign. Mere inadvertence does not afford a defence. The defendant must go further and convince the trier of fact that no driver was likely to have seen the sign.

[17] In my opinion, this evidence would be sufficient to allow a trier of fact to conclude that no driver in the position of the defendant would be likely to have seen the sign.

Conclusion

[18] Because of the overriding errors of the defendant, I set aside the finding of guilt. I believe I can assess the evidence led at trial and the new evidence proffered on the appeal and come to a conclusion in this matter. I believe that the defence is made out and no other conclusion is possible on this evidence but to substitute a finding of not guilty to this offence.

Signed: "Justice P.N. Bourque"

Released: May 7, 2015