Court Information

Ontario Court of Justice

Date: October 7, 2016

Court File No.: Halton – Burlington - Certificate of Offence no. 1260-5224435B

Provincial Offences Court – Burlington, Ontario

Parties

Between:

Her Majesty the Queen, ex rel. The City of Burlington

— AND —

Carly N. Foresto

Before the Court

Justice of the Peace: Kenneth W. Dechert

Heard on: December 3, 2015 and July 13, 2016

Reasons for Judgment released: October 7, 2016

Counsel

Municipal Prosecutors: A. Senkus and G. Larson

Representative for the Defendant: R. Redquest (family friend)

Statutes, Regulations and Rules Cited

• Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, subsections 1(1), 182(1) and 182(2)
• Ontario Regulation 615, made under the Highway Traffic Act, R.R.O. 1990, Reg. 615, as amended, section 23
• Ontario Regulation 339/94, made under the Highway Traffic Act, as amended

Cases Cited

• Lévis (City) v. Tétreault, 2006 SCC 12
• Regina v. Dillman, [2008] O.J. No. 1120
• Regina v. Graat, [1982] 2 S.C.R. 819
• Regina v. Kanda, 2008 ONCA 22, 88 O.R. (3d) 732
• Regina v. Kurtzman, 4 O.R. (3d) 417
• Regina v. Lifchus, [1997] 3 S.C.R. 320
• Regina v. Raham, 2010 ONCA 206
• Regina v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299

Publications Cited

• Cross, Sir Rupert, Cross on Evidence, 5th ed. (1979)

JUDGMENT

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

INTRODUCTION

[1] Under Certificate of Offence no. 1260-5224435B, the defendant Carly N. Foresto stands charged that she on the 7th day of April, 2015 at Postridge Drive and Dalebrook Drive, in the Town of Oakville, committed the offence of "disobey sign, contrary to the Ontario Highway Traffic Act, section 182(2).

[2] Upon arraignment on the subject charge on December 3rd, 2015, the defendant's representative entered a plea of not guilty on behalf of the defendant, and the trial of the charge then began before me. As the trial was not completed on December 3rd, 2015, it was continued on July 13th, 2016 when it was completed. The proceeding was then adjourned to October 7th, 2016 for my judgment.

[3] The prosecution, the City of Burlington, was represented by Ms. A. Senkus and Mr. G. Larson. The defendant was represented by her friend Mr. R. Redquest.

RELEVANT STATUTORY PROVISIONS

[4] The defendant is charged with the offence of disobey sign, contrary to subsection 182(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as "the H.T.A." That subsection reads as follows:

Every driver or operator of a vehicle or street car shall obey the instructions or directions indicated on any sign so erected.

[5] Subsection 182(1) of the H.T.A. sets forth the power of the Lieutenant Governor in Council to make regulations pertaining to the erection of signs on any highway. That subsection reads as follows:

The Lieutenant Governor in Council may make regulations requiring or providing for the erection of signs and the placing of markings on any highway or any type or class thereof, and prescribing the types of signs and markings and the location of each type of sign and marking and prohibiting the use or erection of any sign or type of sign that is not prescribed.

[6] The following terms found within the text of subsection 182(2) are defined in subsection 1(1) of the H.T.A., as follows:

In this Act,

'driver' means a person who drives a vehicle on a highway;

'vehicle' includes a motor vehicle, trailer, traction engine, farm tractor, road-building machine, bicycle and any vehicle drawn, propelled or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle or a street car.

[7] Furthermore, the word "highway", which is contained in subsection 182(1), is defined in subsection 1(1), as follows:

'highway' includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof.

[8] Ontario Regulation 615 made pursuant to the provisions of subsection 182(1) of the H.T.A., prescribes the types of signs and markings erected or placed on any highway. The requirements pertaining to the dimensions and design of a "No U Turn Sign" are set out and illustrated in section 23 of the said regulation. That section reads, in part, as follows:

A No U Turn sign shall,

(a) be rectangular in shape and shall be not less than 60 centimetres in height and not less than 60 centimetres in width; and

(b) bear the markings and have the dimensions as prescribed and illustrated in the following Figure: …

[9] The figure depicts a rectangular sign with a black-coloured border. The image contained within the border is a black-coloured, inverted letter "U", with an arrow head located at the left end of the letter. This inverted letter "U" is contained within a red-coloured circle and the image shows a red-coloured line passing over top of and through the said inverted letter, such that it runs from the top, left-hand portion of the red-coloured circle, to the lower right-hand portion of the circle.

[10] It is reasonable to interpret the instruction conveyed by the sign as one which prohibits a driving manoeuvre involving 180˚ turns from one direction for traffic to the opposite direction for traffic.

THE CLASSIFICATION OF THE OFFENCE

[11] In his seminal decision in Regina v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, Dickson J. (as he then was) determined that "offences" should be divided into three categories: offences in which mens rea must be proved, offences of strict liability and offences of absolute liability. He went on to find that "public welfare offences", which may also be described as regulatory offences, were presumptively strict liability offences.

[12] In reaching this conclusion he opined that proof of the element of mens rea would only be required for regulatory offences where the statutory provision creating the offence contained "such words as 'wilfully', 'with intent', 'knowingly' or 'intentionally'…". The said jurist went on to state that "offences of absolute liability would be those in respect of which the legislature had made it clear that guilt would follow proof merely of the proscribed act". He advised that a determination of whether a Legislature had clearly intended to categorize a regulatory offence as one of absolute liability would involve an assessment of the following "primary considerations": the over-all regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty and the precision of the language used.

[13] In his decision, written on behalf of the Supreme Court of Canada, in Lévis (City) v. Tétreault, 2006 SCC 12, LeBel J. adopted the offence classification "interpretive approach" established in Regina v. Sault Ste. Marie (City), supra. He re-affirmed the principle that "regulatory or public welfare offences usually fall into the category of strict liability offences rather than that of mens rea offences". Furthermore, at paragraph 17 of the decision, the said jurist made the following comments pertaining to regulatory offences of absolute liability:

Absolute liability offences still exist, but they have become an exception requiring clear proof of legislative intent. This intent can be deduced from various factors, the most important of which would appear to be the wording of the statute itself: …

[14] In his decision in Regina v. Raham, 2010 ONCA 206, Doherty J.A. made the following comments pertaining to the nature of offences created by the H.T.A.:

The Highway Traffic Act is public welfare legislation designed to protect those who use the roads of the province. The Act, and in particular Part X, 'Rules of the Road', create a wide variety of offences, including the offence in s. 172. Those offences, taken together, are designed to regulate and control conduct on the roads. The offences are properly regarded as public welfare offences: see R. v. Kanda, 2008 ONCA 22, 88 O.R. (3d) 732 (C.A.); R. v. Kurtzman, 4 O.R. (3d) 417 (C.A.). On the authority of Sault Ste. Marie, these offences, including s. 172, are prima facie strict liability offences.

[15] I am bound by the aforesaid reasoning pertaining to the objects of the H.T.A., in particular the rules of the road offences prescribed in Part X therein. Accordingly, as the offence of disobey sign is one which is contained within Part X, I find that it is a "public welfare offence"; presumed to be one of strict liability.

[16] In order to determine the appropriate classification of the subject offence, I am obliged to interpret the text of the offence in the context of the principles of statutory interpretation enunciated in Sault Ste. Marie, supra. In doing so, I will be able to determine whether the presumption of statutory interpretation establishing the subject offence as a strict liability offence, is rebutted in favour of a classification as either a mens rea offence or one of absolute liability.

[17] The text of subsection 182(2) of the H.T.A. does not contain the words "wilfully", "with intent", "knowingly" or "intentionally". The offence thereby created is not, therefore, one which requires the proof of mens rea on the part of the defendant.

[18] In determining whether the presumption of strict liability is overcome in favour of an absolute liability classification, I am obliged to consider the four "primary considerations" stated in Sault Ste. Marie relative to that issue.

[19] In considering the overall regulatory pattern of the H.T.A., I am persuaded by the reasoning of MacPherson J.A. in Regina v. Kanda, supra, in finding the said criterion to be a neutral one relative to an issue of the categorization of an offence under that Act. In reaching that conclusion, the said jurist noted that the Legislature of the Province of Ontario has used language throughout the H.T.A. so as to clearly demonstrate an intention to create all three categories of regulatory offences.

[20] The subject matter of subsection 182(2) of the H.T.A. relates to the requirement that drivers or operators of vehicles obey the instructions or directions indicated on any sign prescribed by the regulations under the said Act. It is trite to say that the purpose of this subsection is to ensure that rules of the road on a particular highway, as communicated by signs or roadway markings, are strictly enforced in the interests of public safety. This criterion would appear to support a conclusion that this offence is one of absolute liability.

[21] On the other hand, as stated in Regina v. Kanda, supra, "the link between absolute liability and increased compliance with the law is tenuous". In this regard, Mr. Justice MacPherson went on to state as follows:

Moreover, to regard strict liability as a serious diminution of enforcement capacity is a misconception. Strict liability is what the name implies – a serious commitment to enforcement of the law. In most cases, if a person commits the act proscribed by the law a conviction will follow because establishing the defence of due diligence or reasonable care will not be easy.

[22] When I consider the subject matter of subsection 182(2), I am of the view that it does not rebut the presumption of strict liability, in favour of absolute liability. The subject offence is a general one, which applies to a myriad of highway signs or markings, conveying directives pertaining to the applicability of various rules of the road. The enforceability of the offence is not enhanced by an absolute liability classification. The presumed categorization of strict liability ensures not only effective enforcement of regulatory signage in the interest of public safety, but the ability of a driver to attempt to prove that in disobeying the direction of certain signs involving the exercise of judgment, he/she did not act negligently.

[23] In considering the importance of the penalty for the offence of disobey sign, I am of the view that this factor militates in favour of a finding that the offence is one of absolute liability. In this regard, it is noted that since subsection 182(2) does not make reference to a specific penalty, an offender would be liable to the general penalty under the H.T.A.; a fine of "not less than $60.00 and not more than $500.00". Additionally, under Ontario Regulation 339/94, upon conviction of this offence, two demerit points would be added to the driver's licence of the offender.

[24] These modest penalties reflect the view of the Legislature of the Province of Ontario that the subject offence is not as serious an offence as other regulatory violations under the H.T.A.; which provide for a higher range of fines or possible imprisonment and increased demerit point consequences, thereby justifying an absolute liability classification.

[25] Finally, I am of the view that the factor of the precision of the language used in subsection 182(2) supports a determination that the subject offence is one of strict liability. As stated above, subsection 182(2) is a general section which creates an offence relative to the violation of any direction or instruction communicated to a driver by means of a regulatory sign. As stated by Duncan J. in his decision in Regina v. Dillman, [2008] O.J. No. 1120, the instruction may be mandatory such as that conveyed by a red traffic control signal. On the other hand, a yield sign might direct a driver to proceed with caution and exercise prudent judgment relative to his or her interaction with other traffic on a highway.

[26] In his decision in Regina v. Raham, supra, Mr. Justice Doherty endorsed the concept that in analyzing the appropriate classification of a regulatory offence, a court may consider whether the language used to create the offence could "reasonably admit of a due diligence defence". In this regard, the jurist noted that this consideration was "simply one way of examining 'the precision of the language used', one of the four factors identified in Sault Ste. Marie".

[27] In light of the fact that subsection 182(2) of the H.T.A. is a "catch-all" provision which applies generically to an allegation of a violation of the instruction conveyed by any particular regulatory sign, it lacks the precision of language to justify an absolute liability classification. The elements of this offence are dependent on the evidence tendered in each particular case, which would specify the instructions conveyed by the sign allegedly violated. The offence itself could apply to both a sign which instructs a driver to perform a specific mandatory function such as a stop sign or a red traffic control signal, or to one which might be better described as directory, such as a yield sign requiring a driver to give the right of way to another driver, but at the same time, permitting some autonomy to the driver as to how he or she would act in deferring to the right of way of another driver. The offence of "disobey sign" relative to a yield sign would, by implication, "reasonably admit of a due diligence defence".

[28] For those reasons, the text of the subject offence lacks sufficient precision to support a classification of absolute liability. As stated in Lévis v. Tétreault, supra, the wording of the statute appears to be the most important of the four factors in support of an absolute liability classification as enunciated in Sault Ste. Marie. In applying this statutory interpretive principle, I have afforded greater weight to this factor than to the other three factors.

[29] Accordingly, I find that the presumption of statutory interpretation classifying the subject public welfare offence as one of strict liability has not been rebutted in favour of an absolute liability determination. The offence of disobey sign under subsection 182(2) of the H.T.A. is, therefore, properly classified as a strict liability offence.

THE EVIDENCE

[30] During the course of the trial in this proceeding, I received verbal testimony from Police Constable Mark Werner of the Halton Regional Police Service, tendered on behalf of the prosecution. The defendant did not tender any evidence on her behalf.

[31] Constable Werner testified with the assistance of his investigative notes for the purpose of refreshing his existing memory of the relevant events, as an aid to his memory.

[32] The officer testified that on the 7th day of April, 2015, he was assigned to uniform patrol duties in the Town of Oakville. He advised that at approximately 9:44 a.m., he was situated near the intersection of Postridge Drive and Dalebrook Drive, in the Town of Oakville, in order to enforce the "No U Turn" signs facing eastbound traffic on Postridge Drive, located on Postridge Drive at and just prior to its intersection with Dalebrook Drive. He advised that in conducting "illegal U-turn enforcement" at this intersection, he was monitoring eastbound traffic on Postridge Drive as that traffic approached the intersection, from the location where his police motor vehicle was parked on Dalebrook Drive approximately 150 feet south of the intersection. He went on to state that from this vantage point he was able to see motor vehicles travelling in an easterly direction on Postridge Drive, when those vehicles were situated approximately two to three car lengths west of the intersection.

[33] Constable Werner testified that at the material time, Postridge Drive was an east/westbound roadway which intersected with Trafalgar Road at its westerly limit. He stated that Dalebrook Drive intersected with Postridge Drive at its northerly limit, such that Dalebrook Drive ran in a southerly direction off of Postridge Drive. The officer went on to state that a private driveway was located on the north side of the intersection of Postridge Drive and Dalebrook Drive, such that it proceeded in a northerly direction off of Postridge Drive and into the area of a large strip mall. He noted that this intersection was governed by four traffic lights, one for each direction of traffic.

[34] Constable Werner testified that on the date of the alleged offence, there were three regulatory "No U Turn" signs facing eastbound traffic on Postridge Drive, located at or just prior to the westerly limit of the intersection of Postridge Drive and Dalebrook Drive. These signs prohibited drivers of eastbound vehicles from executing U-turn manoeuvres at the said intersection.

[35] The officer advised that eastbound and westbound traffic on Postridge Drive was divided by means of a concrete curb or "barrier" which was located at the westerly limit of the subject intersection and continued for an unspecified distance to the west of the intersection. He stated that two of the three "No U Turn" signs at the intersection, were located on the said concrete median.

[36] Constable Werner testified that one such "No U Turn" sign was located on a pole embedded in the concrete dividing barrier, approximately 50 feet west of the subject intersection. He advised that this sign was located to the left of traffic on Postridge Drive, approaching the subject intersection from the west.

[37] Constable Werner advised that the other two "No U Turn" signs were located at the westerly limit of the intersection. One of the signs was affixed to the "standard of the traffic light" located on the said concrete median. This traffic light standard was located to the left of eastbound vehicles as those vehicles approached the subject intersection. The third "No U Turn" sign was affixed to a pole erected to the right of Postridge Drive, but parallel to the location of the "No U Turn" sign attached to the traffic light standard on the centre median. The officer stated that this sign was situated to the right of eastbound traffic on Postridge Drive, at the subject intersection.

[38] Constable Werner testified that the subject "no U Turn" signs were signs which conformed to the regulations made pursuant to the H.T.A. He described the signs as being "square" in shape, noting that they appeared "to be of legal size required" for the subject intersection.

[39] In describing the image contained on the signs, Constable Werner stated that it portrayed a "black line, curving on itself with an arrow at the end of the continuation of the line". He noted that the black line was in the shape of a "U". He went on to state that this black, "U-shaped line" was contained within a red circle with a red diagonal line going through it.

[40] Constable Werner testified that on the subject date, at 9:44 a.m., he observed a grey-coloured, four-door motor vehicle travelling eastbound on Postridge Drive approaching its intersection with Dalebrook Drive. He observed the motor vehicle enter the said intersection, conduct a U-turn manoeuvre within the intersection, and then proceed to travel in a westerly direction on Postridge Drive, in its westbound lane. He stated that as this motor vehicle approached the subject intersection and made the U-turn manoeuvre, it passed the "stop light standard" located on the median on Postridge Drive, where one of the "No U Turn" signs was located.

[41] Constable Werner testified that upon observing the said motor vehicle perform the U-turn in the said intersection, he "conducted a traffic stop on this motor vehicle" at a location on Trafalgar Road south of Postridge Drive. He stated that the driver of that motor vehicle identified herself as Carly Foresto, by means of a valid Ontario driver's licence.

[42] During the course of his examination-in-chief, Constable Werner was asked if he ever lost sight of the motor vehicle which he stopped on Trafalgar Road, from the "point" that he first observed the vehicle to "point" that he stopped it. In response to this question, the constable stated that he could not recall whether or not he ever lost sight of the vehicle.

[43] Constable Werner stated that when he observed the subject motor vehicle make the U-turn at the intersection, he noted that it was a grey-coloured, four-door motor vehicle. He went on to testify that in between the time that he observed the said motor vehicle make the U-turn and the time that he stopped it, there were no other similar vehicles travelling westbound on Postridge Drive. In this regard, he testified that it is his practice to refrain from stopping a motor vehicle which has conducted an illegal U-turn if he loses sight of that motor vehicle, in circumstances where he sees other motor vehicles in the area which are similar in appearance to the offending motor vehicle.

[44] In response to a question posed of him by the prosecutor as to whether there was any doubt in his mind that the motor vehicle that he observed make the prohibited turn, and the motor vehicle that he stopped, were not the same vehicle, Constable Werner stated that "there was no doubt at all in [his] mind".

[45] During cross-examination, Constable Werner reiterated his testimony-in-chief that at the time of the alleged offence on April 7th, 2015, he was monitoring the subject intersection for violations of the "No U Turn" signs at the intersection from his position on Dalebrook Drive, approximately 150 feet south of Postridge Drive. He agreed with the proposition put to him by the defendant's representative that the purpose of monitoring the subject intersection from such a distance was to ensure that the driver of an eastbound vehicle on Postridge Drive, did not see his police vehicle prior to entering the intersection.

[46] The officer stated that he has worked as a uniform patrol officer in the Town of Oakville for a period of 11 and ½ years. He advised that for a period of 1 and ½ years within that 11 and ½ year time frame, he had been "regularly enforcing" the "No U Turn" signage at the subject intersection.

[47] In my view, the credibility of Constable Werner's testimony was not diminished or impeached as a result of the cross-examination.

THE ISSUES

[48] The ultimate issue in this proceeding is whether or not the prosecution has proven all of the essential elements of the actus reus of subject offence of disobey sign, to the standard of proof beyond a reasonable doubt. If the prosecution has proven the actus reus of this strict liability offence to the requisite standard, then the fault element of negligence is automatically imported into the offence and the burden of proof then shifts to the defendant to establish, on a balance of probabilities, that in committing the offence she either exercised due diligence or did so on the basis of a reasonable mistake of fact.

[49] If the defendant is able to prove either branch of the defence of due diligence on a balance of probabilities, her presumed negligence is rebutted and she is entitled to be excused of quasi-criminal liability for the offence. If the defendant does not establish the defence of due diligence, then she will be found guilty of the offence based upon the evidence which has proven the actus reus of the subject offence, beyond a reasonable doubt.

[50] During the course of his final submissions in this proceeding, the defendant's representative argued that the prosecution had failed to prove all of the elements of the actus reus of this offence, beyond a reasonable doubt, submitting that the prosecution evidence did not establish continuity of observation of the offending vehicle from the time of the alleged traffic violation to the time when the vehicle was stopped.

[51] The defendant's representative submits that the totality of the evidence in this proceeding fails to establish, beyond a reasonable doubt, that the defendant was driving the motor vehicle that was observed to make the U-turn in contravention of the "No U Turn" sign at the subject intersection. His argument is based on the police officer's admission that he could not recall whether or not he ever lost sight of the motor vehicle which conducted the prohibited U-turn from the time of the turn until the time that he stopped it, as well as the paucity of evidence relative to any identifying features of the offending vehicle so as to establish a nexus between the motor vehicle stopped by the officer and the purported offending vehicle.

[52] The representative argues that the totality of the evidence in this proceeding, raises a reasonable doubt that the defendant was the driver of the motor vehicle that conducted the subject prohibited U-turn and that the subject charge should, therefore, be dismissed.

[53] On the other hand, the prosecutor submits that it has adduced sufficient evidence to prove all of the essential elements of the actus reus of the subject charge, including the element of the identity of Carly Foresto as the driver to the offending motor vehicle, beyond a reasonable doubt. In making this submission the prosecutor argues that Constable Werner's evidence in this proceeding is both credible and reliable and that there is no evidence which contradicts any of the observations made by him at the material time.

[54] The prosecutor argues that even though Constable Werner stated that he could not recall whether or not he lost sight of the offending motor vehicle from the time of the subject U-turn until the time of the traffic stop, the constable did not admit to having actually lost sight of the vehicle. Moreover, the prosecutor argues that in spite of his lack of memory as to whether he ever lost sight of the offending vehicle, Constable Werner was unequivocal in his resolve that he stopped the proper vehicle and that the vehicle which was stopped was the same vehicle which he observed shortly before the time of the traffic stop, performing the U-turn manoeuvre.

[55] The prosecutor submits that the constable's testimony that the subject U-turn manoeuvre was performed by a grey-coloured, four-door motor vehicle, coupled with his testimony that in between the time that he observed the said grey, four-door vehicle make the turn and the time that he conducted the traffic stop that there were no other similar motor vehicles travelling in a westerly direction on Postridge Drive, is sufficient to establish a logical and reasonable inference that the motor vehicle driven by Carly Foresto was the same vehicle which the officer had previously observed making the prohibited U-turn.

[56] The prosecutor submits that the said circumstantial evidence is consistent with the officer's direct evidence that he had no doubt that he stopped the same vehicle that he previously had observed making the illegal U-turn. He further argues that the police officer's unchallenged opinion identifying the motor vehicle which he stopped as the same vehicle that he observed making the U-turn, should be afforded significant weight, thereby constituting sufficient proof that Carly Foresto was the driver of the offending motor vehicle at the material time.

[57] In conclusion, the prosecutor, Mr. Larson, argues that sufficient direct and circumstantial evidence has been tendered in this proceeding to objectively establish the actus reus of the subject offence, to the standard of proof beyond a reasonable doubt. Accordingly, he submits that the defendant should be found guilty of the subject charge.

ANALYSIS

[58] I am of the view that the evidence of Constable Werner in this proceeding is both credible and reliable. He presented his evidence in a clear and concise manner. His testimony was both detailed and internally consistent. Its believability was not diminished through cross-examination.

[59] Accordingly, based upon the undisputed and uncontradicted aspects of Constable Werner's testimony, I find that the prosecution has established the following elements of the actus reus of the subject offence, beyond a reasonable doubt:

1. That on the 7th day of April, 2015, Postridge Drive and Dalebrook Drive were highways within the meaning of the H.T.A., located within the Town of Oakville;

2. That on the 7th day of April, 2015, Postridge Drive was an east/west roadway, which ran in an easterly direction from its westerly limit at Trafalgar Road and intersected with Dalebrook Drive at a location east of Trafalgar Road;

3. That on the 7th day of April, 2015, Dalebrook Drive intersected with Postridge Drive at its northerly limit. Dalebrook Drive ran in a southerly direction from its intersection with Postridge Drive;

4. That on the 7th day of April, 2015, there were three regulatory "No U Turn" signs situated at or near the westerly limit of the intersection of Postridge Drive and Dalebrook Drive. These signs were located in various locations on Postridge Drive, facing and clearly visible to eastbound traffic on that highway approaching that intersection. The signs were made and erected in accordance with the specifications prescribed by the regulations made pursuant to the H.T.A., instructing drivers of vehicles approaching the intersection from the west that U-turn manoeuvres in the said intersection were prohibited;

5. That on the 7th day of April, 2015 at approximately 9:44 a.m., a grey-coloured, four-door motor vehicle was travelling in an easterly direction on Postridge Drive, approaching its intersection with Dalebrook Drive. As the motor vehicle entered the intersection it passed all three of the signs on Postridge Drive prohibiting the conduct of U-turns. The motor vehicle then performed a U-turn manoeuvre within the intersection in contravention of the direction of the "No U Turn" signs. In doing so the vehicle turned from an easterly direction so as to proceed in a westerly direction on Postridge Drive, towards its intersection with Trafalgar Road;

6. That shortly after the time of the subject U-turn manoeuvre, the defendant Carly Foresto was identified as being the driver of a grey-coloured, four-door motor vehicle, which had been stopped by Constable Werner on Trafalgar Road, south of Postridge Drive. Ms. Foresto was then charged with the offence of disobey sign, relative to the allegation that she had executed the U-turn in contravention of the signs prohibiting such a manoeuvre at the subject intersection.

[60] The remaining issue is whether or not the prosecution has proved, beyond a reasonable doubt, that the grey-coloured, four-door motor vehicle which Constable Werner stopped on Trafalgar Road after the time of the subject U-turn, was the same motor vehicle which Constable Werner had previously observed making the U-turn.

[61] Constable Werner testified that at 9:44 a.m. on April 7th, 2015, he observed a grey-coloured, four-door motor vehicle which was travelling eastbound on Postridge Drive, enter its intersection with Dalebrook Drive, conduct a U-turn within the intersection and then proceed in a westerly direction on Postridge Drive. He stated that he conducted a traffic stop on this motor vehicle on Trafalgar Road, south of Postridge Drive.

[62] In stating that he conducted a traffic stop on the same grey-coloured motor vehicle that he had observed make the prohibited U-turn, Constable Werner was rendering a lay or non-expert opinion, identifying the vehicle based on his observations and memory. This type of non-expert opinion evidence is admissible for purposes of identifying persons or things or for purposes of offering conclusions relative to observations which a person of ordinary knowledge and experience is able to make. This proposition of law was adopted by the Supreme Court of Canada in its decision in Regina v. Graat, [1982] 2 S.C.R. 819, on the basis that in expressing the opinion, the lay witness is "merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly".

[63] In his decision in this case, written on behalf of the Court, Dickson J. made, in part, the following comments relative to the issue of the admissibility of non-expert opinion evidence:

I accept the following passage from Cross [Cross on Evidence, 5th ed. (1979)] as a good statement of the law as to cases in which non-expert opinion is admissible:

When, in the words of an American judge, 'the facts from which a witness received an impression were too evanescent in their nature to be recollected, or too complicated to be separately and distinctly narrated', a witness may state his opinion or impression. He was better equipped than the jury to form it, and it is impossible for him to convey an adequate idea of the premises on which he acted to the jury:

Unless opinions, estimates and inferences which men in their daily lives reach without conscious ratiocination as a result of what they have perceived with their physical senses were treated in the law of evidence as if they were mere statements of fact, witnesses would find themselves unable to communicate to the judge an accurate impression of the events they were seeking to describe.

There is nothing in the nature of a closed list of cases in which non-expert opinion evidence is admissible. Typical instances are provided by questions concerning age, speed, weather, handwriting and identity in general.

[64] At a later point in his decision, Mr. Justice Dickson noted that while lay opinion evidence is admissible relative to matters such as those listed above, the issue of the weight to be given to such evidence is a matter for the trier of fact to decide. The weight of the lay opinion will generally involve an assessment of the credibility and reliability of the opinion in the context of the totality of the evidence before the trier of fact. In this regard, the jurist stated, in part, as follows:

Whether or not the evidence given by police or other non-expert witnesses is accepted is another matter. The weight of the evidence is entirely a matter for the judge or judge and jury. The value of the opinion will depend on the view the court takes in all the circumstances.

[65] In considering Constable Werner's non-expert opinion identifying the motor vehicle that he stopped on Trafalgar Road, in the context of the totality of the officer's testimony, I am of the view that the opinion should be afforded significant weight.

[66] In reaching that conclusion I have found Constable Werner's evidence to be both credible in the sense of being genuine and reliable in the sense of being accurate. The officer's opinion pertaining to the identity of the subject vehicle is bolstered by his unequivocal statement that there was no doubt "in [his] mind" that the vehicle he observed make the U-turn and the vehicle that he stopped on Trafalgar Road after he had made the observation, was not the same vehicle. Furthermore, the officer advised that in between the time that he observed the grey, four-door motor vehicle make the U-turn at the subject intersection and the time that he conducted the traffic stop, he did not notice any other similar vehicles travelling in a westerly direction on Postridge Drive from the location of the intersection, towards Trafalgar Road.

[67] While I acknowledge Constable Werner's admission that he could not recall whether or not he ever lost sight of the defendant's motor vehicle from the time that he first observed it until the time that he stopped it, I am able to draw a reasonable and rational inference from the totality of the constable's evidence that immediately following the time of the U-turn, he pursued the grey motor vehicle travelling westbound on Postridge Drive and eventually recognized it travelling in a southerly direction on Trafalgar Road. There is no evidence before me that the officer actually ever lost sight of the vehicle, and the totality of the officer's credible evidence permits me to draw a reasonable inference that the officer had a clear view of the offending motor vehicle as it entered the intersection and exited the intersection to be able to identify that vehicle at a location near the subject intersection, a short time later.

[68] The officer's clear and unequivocal opinion that the motor vehicle he stopped on Trafalgar Road was the same motor vehicle which he had previously observed making the subject U-turn at the intersection of Postridge Drive and Dalebrook Drive is admissible in this proceeding. Constable Werner's testimony that he did not see any other grey-coloured, four-door motor vehicles travelling westbound on Postridge Drive from the area of its intersection with Dalebrook Drive, in between the time that he observed the offending motor vehicle make the U-turn and the time that he stopped that vehicle on Trafalgar Road, is very compelling as it bolsters the value and significance of the officer's lay opinion that the vehicle that he stopped on Trafalgar Road, being driven by the defendant, was one and the same motor vehicle that he observed making the subject U-turn shortly before the time of the traffic stop.

[69] Constable Werner's opinion recognizing and identifying the offending motor vehicle shortly after the time of the prohibited turn constitutes direct evidence which is consistent with the circumstances surrounding the actions of the subject grey-coloured motor vehicle. The opinion may therefore be considered to be believable and accurate. It is, therefore, afforded considerable weight in my determination as to whether the prosecution has met its legal burden of proof in respect of the subject charge.

[70] When I balance the said opinion in the context of the absence of any evidence to the contrary, I find that the inference that Carly Foresto was the driver of the grey-coloured, four-door motor vehicle which conducted the subject prohibited U-turn, is the only rational inference which may be drawn from the totality of the circumstantial evidence in this proceeding.

[71] In determining whether Constable Werner's opinion pertaining to the identity of the vehicle which he stopped on Trafalgar Road, constitutes proof beyond a reasonable doubt that Carly Foresto was the driver of the motor vehicle which made the U-turn at the subject intersection at the material time, I must remind myself of the definition of the expression "beyond a reasonable doubt" crafted by Mr. Justice Cory in his decision in Regina v. Lifchus, [1997] 3 S.C.R. 320, stated, 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 upon reason and common sense. It is logically derived from the evidence or the absence of evidence.

[72] Upon objectively assessing the totality of Constable Werner's evidence in this proceeding, I am of the view that Constable Werner's conclusion that he stopped the same motor vehicle as he had previously observed performing the prohibited U-turn makes common sense. It is evident that the officer stopped the offending vehicle shortly after he had observed it on Postridge Drive. The image of the vehicle was, therefore, fresh in his memory. He was, therefore, able to easily recognize the vehicle when he caught up to it on Trafalgar Road. Additionally, he did not see any other similar grey, four door motor vehicles in the vicinity of the subject intersection and the location of the traffic stop, prior to conducting the traffic stop of the vehicle.

[73] The totality of the prosecution evidence in this proceeding coupled with the absence of evidence which contradicts that evidence, logically and reasonably leads to the conclusion that on April 7th, 2015, Carly Foresto was the driver of the motor vehicle which executed a U-turn in the subject intersection in contravention of the instructions conveyed by the subject regulatory "No U Turn" signs. This evidence constitutes proof beyond a reasonable doubt, of the element of the actus reus of the subject offence, establishing a nexus between the grey, four-door motor vehicle observed conducting the U-turn at the material time and the motor vehicle similarly described, which was stopped by Constable Werner shortly after the time of the prohibited turn.

THE DECISION

[74] I am of the view that the prosecution has met its burden of proving all of the essential elements of the actus reus of the subject charge of "disobey sign", to the standard of proof beyond a reasonable doubt. Accordingly, Carly Foresto is presumed to be negligent in committing the offence.

[75] There is no evidence before me which establishes, on a balance of probabilities, that in committing the subject offence, Ms. Foresto took all reasonable steps to avoid committing the offence or did so, on the basis of an honest and reasonable mistake of fact. Accordingly, she has not established the defence of due diligence in respect of this strict liability offence and is not, therefore, excused of quasi-criminal liability for the offence.

[76] I therefore find Carly Foresto guilty of the offence of "disobey sign", contrary to subsection 182(2) of the H.T.A., as charged.

Released: October 7, 2016

Signed: Justice of the Peace Kenneth W. Dechert