Court Information

Ontario Court of Justice

Date: 2018-08-24

Court File No.: Halton - Burlington 1260-7882938B

Provincial Offences Court – Burlington and Milton, Ontario

Parties

Between:

Her Majesty the Queen

— AND —

Tamara A. Colaco

Before: Justice of the Peace Kenneth W. Dechert

Heard on: May 2, 2018 and July 26, 2018

Reasons for Judgment released on: August 24, 2018

Representation

M. Good — representative for the prosecution

The defendant Tamara A. Colaco — on her own behalf

Statutes, Regulations and Rules Cited

• Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, subsections 1(1) and 175(11)
• Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, subsection 47(3)

Cases Cited

• Proulx v. Krukowski, [1993] O.J. No. 3084 (Ont. C.A.)
• Regina v. Mardave Construction (1990) Ltd., [1997] O.J. No. 6520 (Ont. C.J.)
• Regina v. Popli, [2003] O.J. No. 3292 (Ont. C.J.)

Publications Cited

Oxford Dictionary of Current English, Third Edition, (2001, Oxford University Press)

Judgment

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

INTRODUCTION

[1] Under Certificate of Offence no. 1260-7882938B the defendant, Tamara A. Colaco, stands charged that she on the 7th day of September, 2017, at 5851 Blue Spruce, in the City of Burlington, did commit the offence of "fail to stop for school bus – meeting", contrary to subsection 175(11) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as "the H.T.A."

[2] The trial of the charge began before me on May 2nd, 2018, when I received evidence tendered by both the prosecution and defence. The trial was then adjourned to July 26th, 2018 for the final submissions of the parties. It was then adjourned to August 24th, 2018, for my judgment.

[3] The prosecution, the City of Burlington, was represented by Ms. M. Good. The defendant was self-represented.

RELEVANT STATUTORY PROVISIONS

[4] The defendant is charged with the offence of fail to stop for school bus – meeting, contrary to subsection 175(11) of the H.T.A. That subsection reads as follows:

Every driver or street car operator, when meeting on a highway, other than a highway with a median strip, a stopped school bus that has its overhead red signal-lights flashing, shall stop before reaching the bus and shall not proceed until the bus moves or the overhead red signal-lights have stopped flashing.

[5] The following portions of subsection 1(1) of the H.T.A. defining certain terms or phrases contained in subsection 175(11) of the H.T.A., are relevant to this proceeding:

In this Act, …

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

'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 lateral property lines thereof;

'median strip' means the portion of a highway so constructed as to separate traffic travelling in one direction from traffic travelling in the opposite direction by a physical barrier or a raised or depressed paved or unpaved separation area that is not intended to allow crossing vehicular movement;

'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.

[6] The parties agree that the alleged offence took place on Sutton Street, at or near its intersection with Blue Spruce, in the City of Burlington. Furthermore, there is no dispute as to the fact that both Sutton Street and Blue Spruce are "highways" within the meaning of the H.T.A.

[7] While the defendant denies the allegation that she failed to stop for the school bus, which was stopped in one of the northbound lanes of Sutton Street at the southern limit of the said intersection, with its overhead red signal-lights flashing, she submits that she is exempt from liability for the offence on the basis that Sutton Street, at the relevant location, was a highway with a "median strip".

[8] Subsection 47(3) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, hereinafter referred to as "the P.O.A.", places the burden of proving this statutory exemption from liability upon the defendant. That subsection reads as follows:

The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

THE ISSUES

[9] In this proceeding, Tamara A. Colaco is charged with the offence of failing to stop for a school bus which she was meeting on a highway, other than a highway with a median strip, at the material time and location.

[10] During his testimony, tendered on behalf of the prosecution, Police Constable Dan Carter of the Halton Regional Police Service stated that he observed Ms. Colaco drive a motor vehicle in a southerly direction on the highway described as Sutton Street, through its intersection with Blue Spruce, and south of the intersection. He testified that in doing so, Ms. Colaco passed a northbound school bus on Sutton Street, which was stopped at the southerly limit of the said intersection, with its overhead red signal-lights flashing.

[11] On the other hand, Ms. Colaco testified that at the material time, she was driving a motor vehicle in a southerly direction on Sutton Street and had stopped for the stop sign located at the northerly boundary of the four-way stop intersection of Sutton Street and Blue Spruce. She stated that she then observed a school bus travelling in a northerly direction on Sutton Street approaching the intersection. She advised that the school bus was slowing down to stop for the stop sign facing it as it approached the southerly limit of the intersection noting that at that time its overhead red signal-lights were not flashing.

[12] Ms. Colaco stated that after stopping for the stop sign and ensuring that it was safe to enter the intersection, she proceeded into the intersection at a rate of speed of approximately 15 to 20 kilometres per hour. She testified that once she had traversed a distance of three-quarters of the width of Blue Spruce within the intersection, she noticed the school bus' overhead signal-lights begin to flash. She advised that she then stopped her vehicle at a location just north of the southern boundary of the intersection, before reaching the bus. In this regard, she stated that she did not "pass the school bus" at any time while its "signals were flashing" and its "stop arm was out".

[13] Accordingly, the primary issue in this proceeding is whether or not the prosecution has proven, beyond a reasonable doubt that at the material time, the defendant failed to stop for the school bus which was stopped on Sutton Street with its signal-lights flashing, before reaching the bus. However, in my view, before determining this primary issue, I must consider whether or not the defendant is exempt from liability for the subject offence. In that regard, I note that the defendant argues that Sutton Street is a highway which contains a median strip. She therefore contends that she was not obliged to stop for the school bus at the material time.

[14] Ms. Colaco submits that a portion of the text of subsection 175(11) of the H.T.A. prescribes a statutory exemption to liability for the offence described therein. This statutory exemption relates to the sub-issue of whether or not Sutton Street is "a highway, other than a highway with a median strip". She maintains that the totality of the evidence before me establishes the fact that Sutton Street in the area of its intersection with Blue Spruce, is a highway with a "median strip" as that phrase is defined in the H.T.A. She therefore argues that the said exemption operates in her favour and that she cannot, therefore, be convicted of the subject offence.

[15] On the other hand, the prosecutor argues that the defendant has not met her burden of proving that the said exemption to liability prescribed by subsection 175(11) of the H.T.A., operates in her favour. Ms. Good submits that the evidence supporting a finding that that relevant portion of Sutton Street contains a median strip as defined by the H.T.A., is limited and equivocal, and therefore fails to establish that issue on a balance of probabilities. She argues, therefore, that the defendant cannot be acquitted of the subject offence, based solely upon this exemption.

[16] The issue of whether the clause within the text of subsection 175(11) of the H.T.A.; which states that the subject offence must take place "on a highway, other than a highway with a median strip", constitutes an exemption from liability for the said offence and the allocation of the burden of proving that issue, was considered by Smith, J. in his P.O.A. appellate-level decision in Regina v. Popli, [2003] O.J. No. 3292 (Ont. C.J.). In that decision, the said jurist determined that the burden of proving whether or not a highway had a median strip, in the context of subsection 175(11) of the H.T.A. rested upon the defendant, in accordance with the provisions of subsection 47(3) of the P.O.A. In particular, in paragraph 6 of the said decision Mr. Justice Smith stated, in part, as follows:

It is my view that s. 47(3) [of the P.O.A.] operates so that the defendant would have to prove an authorization, exception, exemption or qualification. In particular, I rule that the establishment or not of a highway with a median strip is covered within s. 47(3) … .

[17] In his decision in the case of Proulx v. Krukowski, [1993] O.J. No. 3084 (Ont. C.A.), Dubin C.J.O. briefly discussed the effect of the reverse onus provisions contained in subsection 47(3) of the P.O.A. by noting that the provisions have "nothing to do with reasonable doubt". The jurist went onto observe that "when one comes within the exemption, the offence becomes beyond the reach of an accused". [1] He concluded that the provisions of subsection 47(3) of the P.O.A. were constitutional.

[18] Furthermore, in his P.O.A. appellate-level decision in Regina v. Mardave Construction (1990) Ltd., [1997] O.J. No. 6520 (Ont. C.J.), Westman J. determined that the burden of proof established by subsection 47(3) of the P.O.A., is one which need only be met on a balance of probabilities. In that regard, the said jurist made the following statements in paragraphs 47 and 49 of the decision:

47. That form of burden [the burden of proof that an exemption operates in favour of the defendant] has been characterized in jurisprudence as a persuasive burden requiring a defendant to meet the required onus on a balance of probabilities. …

48. I therefore conclude that, in the circumstances of this case, a defendant must prove the exemption or exception on a balance of probabilities. Therefore a doubt raised by the defendant will not satisfy that onus. …

[19] Accordingly, the issues to be determined in this proceeding are as follows:

1. whether or not the prosecution has proven all of the elements of the actus reus of the subject offence, beyond a reasonable doubt; and

2. whether or not the defendant has proven, on a balance of probabilities, that the statutory exemption from liability for the subject offence, created by the text of subsection 175(11) of the H.T.A., operates in her favour in accordance with the provisions of subsection 47(3) of the P.O.A.

ANALYSIS

(i) Issue: Whether the defendant has proven that the statutory exemption from liability contained in subsection 175(11) of the H.T.A., operates in her favour?

[20] It is clear that the theory of the prosecution's case is that the alleged offence took place on Sutton Street, immediately south of its intersection with Blue Spruce, in the City of Burlington. The design and configuration of this portion of Sutton Street is very relevant to the analysis of this issue.

[21] During his testimony-in-chief, Constable Carter described Blue Spruce as a highway within the meaning of the H.T.A., which ran in an east/west direction. During her testimony, Ms. Colaco confirmed that Blue Spruce near Sutton Street was comprised of two lanes; one lane in each direction.

[22] Constable Carter advised that Sutton Street was also a highway within the meaning of the H.T.A, which ran in a north/south direction. In describing that highway in greater detail, the officer stated that it was comprised of four lanes in total; two lanes northbound and two lanes southbound, "with a divided barrier". There was no further evidence proffered by either Constable Carter or Ms. Colaco, relative to the lay-out of Sutton Street at the material location. Furthermore, there was no other evidence tendered which diminished the strength of Constable Carter's description of Sutton Street.

[23] In my view, based upon the evidence set out above, I am of the view that Ms. Colaco has proven, on a balance of probabilities that Sutton Street, at the relevant location, is a highway within the meaning of the H.T.A., with a median strip. The preponderance of the evidence before me permits me to draw a reasonable inference that Sutton Street is comprised of two northbound lanes and two southbound lanes, with a physical barrier dividing or separating the set of lanes running in opposite directions. Moreover Constable Carter's description of Sutton Street as a highway with four lanes, "with a divided barrier" is similar to the substance of the first clause of the definition of "median strip", contained in subsection 1(1) of the H.T.A. That clause defines "median strip" as "the portion of a highway so constructed as to separate traffic travelling in one direction from traffic travelling in the opposite direction by a physical barrier…".

[24] The common term, expressed by Constable Carter and contained in the text of the definition of "median strip", is the word "barrier". That word is defined in the Oxford Dictionary of Current English, Third Edition, (2001, Oxford University Press), as either "an obstacle that prevents movement or access" or "an obstacle to communication or progress". Furthermore, that same dictionary defines the term "obstacle" as "a thing that blocks one's way or hinders progress".

[25] In light of the definitions of the words "barrier" and "obstacle" as stated above, I am able to reasonably infer that the phrase "divided barrier", as stated by Constable Carter in his testimony, means a tangible obstacle which has the effect of restricting movement or access. It is therefore a physical object or set of objects which clearly separates northbound and southbound traffic on Sutton Street. The "divided barrier" and the area immediately surrounding it on Sutton Street, appears to fit within the definition of "median strip" contained in the H.T.A.

[26] Therefore, I find that the portion of Sutton Street, immediately south of its intersection with Blue Spruce upon which a "divided barrier" is constructed, constitutes a "median strip" within the meaning of the H.T.A. The undisputed evidence pertaining to the design and configuration of Sutton Street in this proceeding, permits me to conclude that Ms. Colaco has established, on a balance of probabilities, that Sutton Street was, on September 7th, 2017, a highway with a median strip.

[27] The defendant has, therefore, shown that it is more likely than not that the relevant portion of Sutton Street was not a highway, "other than a highway with a median strip". She has, therefore, met her onus to prove on a balance of probabilities, that the exemption from liability prescribed by subsection 175(11) of the H.T.A., operates in her favour.

[28] Ms. Colaco is therefore exempt from liability for the subject offence, as the presence of a median strip separating traffic travelling in opposite directions on a highway permits drivers to pass a stopped school bus with its red signal-lights flashing, which they meet on the highway. As stated by Chief Justice Dubin in Proulx v. Krukowski, supra, once it is shown that the exemption operates in favour of a defendant, the "offence becomes beyond the reach of an accused". Ms. Colaco is exempt from liability for the subject offence and she must, therefore, be acquitted of the offence.

[29] I have reached my decision pertaining to the issue of the statutory exemption, without first determining whether the prosecution has proven all of the essential elements of the actus reus of the subject offence, beyond a reasonable doubt. Accordingly, I will not be making any findings as to whether the defendant actually stopped before reaching the stopped school bus she was meeting on Sutton Street at the material time.

THE DECISION

[30] The defendant has proven on a balance of probabilities, that at the material time, she was driving a motor vehicle on a highway, to wit: Sutton Street at or near its intersection with Blue Spruce, in the City of Burlington, being a highway with a median strip. Accordingly, she has shown that the exemption from liability, as prescribed by subsection 175(11) of the H.T.A., operates in her favour.

[31] The defendant Tamara A. Colaco is exempt from liability for the subject offence and is found not guilty. The subject charge of "fail to stop for school bus – meeting", is therefore dismissed.

Released: August 24, 2018

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

[1] Proulx v. Krukowski, [1993] O.J. No. 3084 (Ont. C.A.), para. 5.