ONTARIO COURT OF JUSTICE

Date: February 10, 2017 Court File No.: 9325543Z

Between:

REGIONAL MUNICIPALITY OF YORK Appellant

— AND —

MICHAEL SWITZER Respondent

PROVINCIAL OFFENCE APPEALS

Before: Justice J.F. Kenkel

Heard: February 10, 2017

Reasons Released: February 10, 2017

Counsel:

• Ms. Pankou, counsel for the Appellant
• Mr. Switzer (Father appearing as agent for the Respondent)

KENKEL J.:

Introduction

[1] This appeal considers whether the offence of failing to signal a lane change contrary to s. 142(1) of the Highway Traffic Act RSO 1990 c. H.8 requires proof that other vehicles had to stop short or were otherwise affected by the failure to signal. The respondent also contests the officer's observations.

Section 142(1) HTA

[2] Section 142(1) requires that a driver signal a lane change if "any other vehicle may be affected by the movement". In R v. Clarke, [2005] OJ No. 1825, the Ontario Court of Appeal held at paragraph 23, "To make out the offence, it is only necessary to show that another vehicle may be affected and proof that another vehicle is actually affected is not required." The Clarke decision was recently applied in this jurisdiction on the same point – Regional Municipality of York v. Conforti, [2016] OJ No. 6863 (CJ). The Clarke interpretation follows the wording of the section and accords with a purposive reading of the Act which seeks to instruct drivers to make lane changes safely and does not limit the offence to those situations where collisions or near-collisions occur.

[3] The agent for the respondent at trial submitted that s. 142 required proof that other drivers were affected by the failure to signal the lane change. The court accepted that submission and acquitted the respondent on that basis. In doing so the court erred in law.

The Officer's Observations

[4] The respondent submits that the officer's evidence should not have been accepted. However, at trial the respondent's agent observed, "The officer provided very clear evidence that the turn indicator light was not used by Mr. Switzer and the defendant does not particularly wish to contest that." The court accepted the officer's evidence and there is no reason on this appeal to set that finding aside.

Conclusion

[5] The appeal is allowed. There was no factual dispute at trial, the matter turned on a legal issue alone. Having corrected that error the respondent concedes and I agree that there would be no point in ordering a new trial. Applying the proper legal test I find that the prosecution has proved the offence alleged and there will be a finding of guilt.

Appeal and Ruling: February 10, 2017

Justice J.F. Kenkel