Court File and Parties

Court File No.: Central East – Newmarket -4960-997-14-30030175 Date: 2015-11-06 Ontario Court of Justice

Between: Regional Municipality of York Appellant

— And —

Gino Rico Respondent

Heard: July 10, 2015

Before: Justice Peter Tetley

Provincial Offences Appeal Judgment

Released on November 6, 2015

Counsel: V.B. Pankou, for the Provincial Prosecutor Gino Rico, Respondent, in absentia

TETLEY J.:

Background

[1] By Notice of Appeal dated March 4, 2015, the Regional Municipality of York appeals the Respondent's acquittal following trial before Her Worship Justice of the Peace L. DeBartolo, on a charge of disobey red light – red light camera, contrary to the Highway Traffic Act, section 144(18.1).

[2] The substantive grounds of appeal are as follows:

(i) The Justice of the Peace erred in law by dismissing the charge on the basis that the location of the offence is not located on the face of the photographs;

(ii) The Justice of the Peace erred in law by not accepting the certified statement of the officer in charge, indicating the location of the offence.

Factual Background

[3] On July 1, 2014, at 5:27 p.m., a motor vehicle owned by the Respondent was captured by a camera located at the intersection of Highway 27 and Langstaff Road in the Regional Municipality of York, disobeying a red light signal.

[4] Several months after the offence was alleged to have occurred, the Respondent, who was the owner of the motor vehicle that had been depicted by the "Red Light Camera", a vehicle bearing licence plate number BHHR 406, was charged with the offence of disobeying a Red Light Camera, contrary to the Highway Traffic Act, section 144(18.1).

[5] At trial, the Respondent was represented by a paralegal, Mr. P. Andrews.

[6] No witnesses were called by the Crown. The prosecution's case included the tendering of certified documents from the Ministry of Transportation confirming the Respondent's ownership of the vehicle bearing plate BHHR 406, as at July 1, 2014. In addition, the prosecution tendered three photographs certified by a provincial offences officer. These images show the motor vehicle owned by the Respondent on July 1, 2014, as the vehicle failed to stop for a red light at the intersection of Highway 27 and Langstaff Road.

[7] Certification by the Provincial offences officer confirmed that the information contained in the certificate of offence issued to the Respondent was obtained from images secured by the Red Light Camera system at the intersection of Highway 27 and Langstaff Road on July 1, 2014 at 5:27 p.m.

[8] Following presentation of the referenced documentation, the Regional Prosecutor submitted that the section 144(18.1) offence had been established and requested that a finding of guilt be entered. The submission was based on the presentation of evidence establishing the Respondent's ownership of a motor vehicle bearing plate BHHR 406, depicted by the referenced photographs, as having failed to stop for a red light as captured by the Red Light Camera system at the aforementioned intersection on July 1, 2014.

[9] Without calling any evidence, the Defendant raised three issues as follows:

(i) The fact one of the digital images relied on by the prosecution was not certified by the provincial offences officer, although the image was acknowledged to have been specifically referenced by the reviewing provincial offences officer as an enlargement of one of the other certified photographs;

(ii) An asserted failure of the prosecution in relation to the establishment of proof of non-compliance with section 144(5) of the Highway Traffic Act. That section directs that a driver is required to stop his or her motor vehicle on a roadway that is subject to a traffic control signal as follows:

(a) At the sign or roadway marking indicating where the stop is to be made;

(b) If there is no sign or marking, immediately before entering the nearest crosswalk; or,

(c) If there is no sign, marking or crosswalk, immediately before entering the intersection.

(iii) Of significance, for the purposes of resolution of this appeal, the Respondent's legal representative noted the specific intersection in issue, as certified by the provincial offences officer in the back of the aforementioned photographs, was not referenced or detailed on the face of the photograph itself.

[10] Despite the fact the face of the certificate of offence referenced the specific intersection in issue, the Respondent's legal representative asserted that the precise location of the offence was required to be disclosed on the face of the photograph in order to comply with the regulatory scheme relating to the Red Light Camera legislation.

Decision at Trial

[11] The presiding Justice of the Peace accepted Mr. Andrews' submission that confirmation of the place of offence by certified statement of the Provincial offences officer on the back of the photograph was not sufficient to establish evidence as to the place of offence.

[12] The Justice of the Peace concluded that the digital images filed in support of the charge "should be absolutely clear, full of information, and it's almost like it – actually, these pictures take the place of a police officer…".

[13] In reaching this conclusion, the Justice of the Peace acknowledged that the face of the digital images depicted the following information:

• The time of the alleged offence;

• The date;

• The lane of travel;

• The rate of speed of the Respondent's motor vehicle;

• The location of the offence (noted by utilization of code 3003, a code that is referenced by the applicable legislation as being an intersection within the Region of York);

• The differential in timing between the amber light and the red light as the motor vehicle owned by the Respondent traversed the intersection.

[14] In concluding that the prosecution had failed to establish the place of the offence, the Justice of the Peace stated as follows:

So to say only that these pictures are in the Regional Municipality of York, in my opinion, is not good enough. It has to support exactly what the certificate of the offence says. It should read that if the code was 003 intersection or at least light number or camera number because there has to be some kind of sequence to cameras when they're placed with the Regional Municipality of York. So, it should have code and maybe camera number to indicate the location of that camera, and it fails that so it doesn't completely support the certificate of offence. And just to say that it is within the Regional Municipality of York is not good enough…it should actually say the city or the municipality, not the region…there's nothing to say here that these photographs were taken in the City of Markham instead of the City of Vaughan to where the certificate of offence reflects and they should support that. So, in failure (failing) in identifying where the location of these pictures were taken, I'm not satisfied beyond a reasonable doubt that this is (the) same location the certificate of offence depicts. Therefore, the certificate in my very little humble opinion is quashed.

[15] Ultimately, a determination was made by the Justice of the Peace to dismiss the charge on the basis that the prosecution had failed to establish proof of the place of offence for the reasons noted.

Ruling on Appeal

[16] For the following reasons, the prosecution's appeal from the dismissal of the charge is allowed and a finding of guilt registered. The matter shall be remitted to the trial justice for imposition of penalty in accordance with section 144(31.2.1).

The Red Light Camera Legislation

[17] On November 20, 2000, the Red Light Camera Pilot Projects Act, 1998, S.O. 1998 c. 38 was enacted. This legislation permitted evidence obtained from red light cameras to be used in areas that had been designated by regulation for the purpose of enforcing section 144(18). That section requires a driver to stop his or her vehicle at a red light and not proceed until the light turns green.

[18] At the same time as the statutory provision was enacted, Ontario Regulation 277/99 was brought into force dealing with the admissibility and use of the Red Light Camera System evidence in proceedings under the HTA. The purpose of the legislation was to facilitate the prosecution of charges relating to the offence of disobeying a red light by authorizing the prosecution of the registered owners of motor vehicles by resort to documentary evidence alone (motor vehicle ownership confirmation under the hand and seal of the Registrar of Motor Vehicles and certified digital images of the offence).

Applicable Legislation

[19] Section 144(18.1) to section 144(18.6) detail the procedural steps when a certificate of offence, an offence notice under subsection 3(2) of the Provincial Offences Act, is issued for contravention of section 144(18).

[20] Subsection 144(18.1) directs that the person who issues a certificate of offence and offence notice must believe that the offence (running or failing to stop for a red light) was committed on the basis of evidence that came through the use of a Red Light Camera System and that the defendant was the registered owner of the vehicle depicted at the time of the commission of the offence.

[21] Of particular significance in this appeal is the related regulatory scheme referenced in Ontario Regulation 277/99. That regulation references the discretionary information that may be contained on the photograph depicting the alleged offence. Subsection 3(1) of Ontario Regulation 277/99 reads as follows:

3.(1) A photograph taken by a red light camera system may show (emphasis added) or have superimposed on it any of the following information:

1. The date when it was taken.

2. The municipality where it was taken.

3. The time of day when it was taken.

4. The length of time that the indication was showing red before the photograph was taken.

5. The length of time that the indication was showing amber before the photograph was taken.

6. The speed at which the vehicle shown in the photograph was travelling when the first photograph in a series of photographs was taken.

[22] Subsection 3(2) provides the information referenced above may be conveyed using the system of codes, symbols and abbreviations which are detailed in subsection 3.1 through to 3.3 of the Regulation.

[23] Subsection 3(5) and 3(6) permit the use of an enlargement of a photograph taken by a Red Light Camera system without requiring the enlargement to have superimposed on it any information if the enlargement or reproduction is tendered in evidence together with the photograph from which it has been enlarged or reproduced.

[24] Subsection 3.1 and 3.2 provide direction to help interpret the information that may be imposed on the front of the digital photographs generated by the Red Light Camera system. This information may include codified column headings denoting time, date, lane of travel, length of time that the light was showing amber before the photograph was taken, a code number identifying the municipality in which the Red Light Camera system is located, the length of time the light was showing red before the photograph was taken, and the speed, in kilometres per hour, that the vehicle was travelling when the first photograph in the series of photographs was taken.

[25] Section 3.2(3.3) of Ontario Regulation 277/99 provides a code identifying the municipality in which the Red Light Camera system was located. Table 7 of section 3.3 denotes code numbers 3000 to 3200 as referencing the Regional Municipality of York.

[26] Subsection 4(1) requires that the offence notice be served by regular pre-paid mail to the person charged (the registered owner of the photographed vehicle) within 23 days after the occurrence of the alleged offence.

[27] Subsection 4(4) directs that if a person is charged as the owner of the vehicle, the address of the person as it appears on the Ministry records respecting the holder of the plate portion of the vehicle permit, shall be used in order to effect service.

Disposition of the Appeal

[28] Leaving aside consideration of the lawful propriety of a statutory scheme that renders culpable the owner of a motor vehicle for an offence that may have been committed by someone else, an issue not under consideration here, the review of the applicable legislation and related regulatory provisions confirms that there is no statutorily mandated obligation requiring the prosecution to establish the location of the particular intersection or red light camera location on the face of the photograph filed as evidence to substantiate the offence.

[29] The intersection in issue was specified on the face of the certificate of offence and confirmed by certification of the reviewing Provincial offences officer. That is all that the legislation requires as detailed in the referenced regulatory scheme noted previously.

[30] The code on the front of the digital image filed at the Respondent's trial confirms that the offence occurred within the Regional Municipality of York. The provincial offence officer's certification verifies that fact. There is no evidence to the contrary.

[31] Proof of the ownership of the subject vehicle depicted in the certified photographs is established by official Ministry of Transportation documents and is not disputed. The Respondent's assertion that the photographs fail to depict the offence was rightly rejected by the Justice of the Peace at trial as was the argument in relation to the consequence of the purported failure of the Provincial offences officer to certify the enlargement of one of the images captured by the red light camera. That enlargement was properly received in evidence in accordance with subsection 3(5) and (6) of Ontario Regulation 277/99.

[32] Of significance, for the purpose of the resolution of this appeal, is section 3(1) of Ontario Regulation 277/99. This regulation provides that a photograph taken by a red light camera system may show or have superimposed on it the information that has been previously detailed earlier in this judgment. The regulation is discretionary by design and does not mandate that the specific intersection in issue, or any other information specifically delineated in section 3(1), be detailed or codified on the front of the photograph as Respondent's counsel suggested and the Justice of the Peace at trial accepted. This is not a legislative requirement.

[33] It is noted the Municipality where the photograph was taken is codified on the front of the photographs in issue here. That code, when referenced within the context of section 3.3 of Ontario Regulation 277/99, clearly defines the place of offence as the Regional Municipality of York. The place of offence is further detailed on the face of the offence notice or charging document itself with the offence notice or certificate of offence specifying the specific intersection. In the matter before the Court, there is no suggestion, or evidentiary basis, to conclude that the Respondent was in any way misled or his fair trial interest otherwise negatively impacted or compromised by any uncertainty as to the place of the alleged offence.

[34] No evidence was called to support the contention that the offence had not taken place at the place alleged. The submissions of counsel do not constitute what has come to be known as "evidence to the contrary".

[35] The evidence as to the place of the offence, adduced by the prosecution in the matter under review here, complies with the legislative scheme and establishes proof of the place of offence, on the basis of proof beyond a reasonable doubt, in the absence of any evidence that might raise a doubt as to the place where the offence was alleged to have occurred.

[36] In these circumstances, the evidentiary burden is on the Respondent to raise a doubt about that essential element of the prosecution's case (the place of the offence). The Respondent must point out or produce some evidence to call into doubt that factual assertion. This is called an evidentiary burden. If the defendant discharges that burden and raises a reasonable doubt as a consequence, the presumed fact may not be concluded to have been proven.

[37] On the facts here, there is no "evidence to the contrary" and the certified images and other documentation filed by the prosecution establish the place of offence and all other necessary pre-conditions to a finding of guilt on the basis of proof beyond a reasonable doubt.

[38] In conclusion, a review of the red light camera provisions in the HTA, section 144(18.1) to (18.6) and Ontario Regulation 277/99 reflect a legislative intent to facilitate proof of the section 144(18) offence (failing to stop for a red light) by resort to documentary evidence without requiring testimony to be adduced at trial from police officers or other Provincial Offences Act enforcement personnel.

[39] In order to facilitate this legislative intent, certified official government documentation of the motor vehicle ownership and digital images relied on to substantiate the offence is authorized. This documentary evidence must comply with the applicable provisions of the governing legislative scheme (section 144(18.1) to section (18.5) and Ontario Regulation 277/99) in order to be accepted into evidence as substantive proof of the offence alleged.

[40] For the reasons referenced herein, I conclude the evidence adduced at the Respondent's trial complied with the governing statutory prerequisites for admission into evidence; establishes the place of offence and all other constituent elements of the offence alleged; and constitutes proof of the section 144(18.1) offence on the basis of proof beyond a reasonable doubt. Accordingly, the appeal is allowed for these reasons and a finding of guilt entered.

[41] Section 144(31.2.1) prescribes the penalty for disobeying a red light. This provision directs that every person who contravenes subsection (18) of section 144 is guilty of an offence and liable on conviction to a fine of not less than $200.00 and not more than $1,000.00. This matter is accordingly directed to the trial Justice of the Peace for receipt of submissions in relation to the determination of the fine within the mandated range. The Appellant will provide the Respondent with reasonable notice of the date and place of the sentencing hearing.

Signed "Justice P. Tetley"

Released: November 6, 2015