Court File and Parties
Ontario Court of Justice
Date: 2018-11-02
Court File No.: 25603788833B (West Nipissing)
Between:
The Municipality of West Nipissing
— and —
Guy Langlois
Before: Justice of the Peace J.G. McMahon
Heard on: June 18, 2018
Finding made on: October 22, 2018
Supplementary Reasons released on: November 2, 2018
Counsel
Christian Tremblay — Counsel for the Municipality of West Nipissing
Guy Langlois — on his own behalf
Decision
Justice of the Peace J.G. McMahon:
I. The Background
[1] Mr. Guy Langlois was charged with disobeying a sign contrary to s. 182(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA").
[2] Mr. Langlois was self-represented. He pleaded "not guilty". The trial was held on June 18, 2018. I found Mr. Langlois "not guilty" on October 22, 2018, with supplementary written reasons to follow. I am now providing those reasons.
The Facts
[3] The facts are neither complicated nor the object of any significant disagreement. On January 10, 2018, Mr. Langlois had a problem. He was driving in Sturgeon Falls—a community in the Municipality of West Nipissing. It was late—a little past midnight. He had to go to the bathroom. It was urgent. He headed towards a local Tim Horton's.
[4] Mr. Langlois drove down Main Street until he reached the intersection with Front Street. He proceeded through the intersection, across Front Street and into the parking lot of the Tim Horton's. Constable M. Renaud observed it all. He was following Mr. Langlois' vehicle at the time.
[5] Cst. Renaud was the prosecution's only witness. He testified that a vehicle traveling on Main Street and arriving at the intersection with Front Street must turn right onto Front Street. He stated that there was a traffic sign at the intersection advising drivers—right turns only. In other words, left turns and proceeding through the intersection are prohibited. As a result, Mr. Langlois was stopped and charged with disobeying a sign, contrary to s. 182(2) of the HTA.
[6] At trial, Mr. Langlois admitted to crossing Front Street to access the Tim Horton's. His defence was a simple one. He had to go to the washroom. It was urgent. He therefore advanced a defence of necessity.
The Traffic Sign and the Evidence at Trial
[7] Where a driver is accused of disobeying a particular traffic sign—the placement, type and physical characteristics of the traffic sign are often central to the case. The lawfulness of a traffic sign is usually challenged on one of four grounds: the absence of legal authority to erect the sign at a particular location; the wrong type of sign was erected; the sign does not meet all of the regulatory requirements (e.g. dimensions, placement, content, colour); or the sign was not visible.
[8] Cst. Renaud testified about the placement, type and physical characteristics of the traffic sign that Mr. Langlois would have disobeyed. In doing so, he indicated that his police notes did not contain information about the sign. He was unsure about the precise type of sign located at the intersection, but he believed the sign had an arrow turning right with a circle around that arrow. He was satisfied that the sign directed drivers not to proceed through the intersection. As will be explained below—the regulations prescribe only one type of sign for a "no left turn or proceeding straight through" intersection and it is not an arrow turning right with a circle around it. In addition to being unsure as to the precise type of sign at the intersection, Cst. Renaud would have also described a traffic sign that did not comply with the regulations.
[9] In his testimony, Mr. Langlois did not describe the relevant traffic sign and he was not asked to do so in cross-examination. He did, however, acknowledge that he disobeyed the sign that was at the intersection by proceeding across Front Street.
[10] In my view, Mr. Langlois was a credible and reliable witness. Cst. Renaud was equally credible. He was sincere and candid. I also found him to be a reliable witness, except with respect to his ability to recall the type of traffic sign at issue. His testimony—on this point—left me with significant doubts about the accuracy of his memory with respect to the type, physical characteristics and details of the traffic sign at issue. The case law has long recognized the difference between credibility and reliability. The testimony of a credible witness may raise accuracy (i.e. reliability) concerns on a certain issue: R. v. Morrissey, [1995] O.J. No. 639 (Ont. C.A.), at para. 33. Given the significant number of matters police attend to—each day—the failure to recall details related to one traffic stop can happen.
[11] Findings must be based on the admissible evidence adduced in the trial. The evidence at this trial—viewed in its totality—led to the following key findings. I was satisfied that there was a traffic sign at the intersection that communicated a message of right turns only. The traffic sign Cst. Renaud described and that he believed was at the intersection is not the prescribed sign for intersections where left turns or proceeding straight through are prohibited: see paras. 18 to 20, below. The evidence at trial was not sufficient to make a determination with respect to the type, details or physical characteristics of the traffic sign at issue.
II. The Legal Framework for 'Disobey Sign'— s. 182(2) HTA
The Actus Reus of the Offence
[12] In the years preceding the Charter—the Supreme Court confirmed that the prosecution must prove the actus reus of a regulatory offence beyond a reasonable doubt: R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, at p. 1325. Post-Charter—the Supreme Court confirmed that this requirement is now grounded in s. 11(d) of the Charter (i.e. the presumption of innocence): R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154. In Wholesale Travel, Cody J. explained it as follows, at p. 248:
I wish to emphasize, however, that the differences in the scope and meaning of s. 11(d) in the regulatory context does not imply that the presumption of innocence is meaningless for a regulated accused. The Crown must still prove the actus reus of regulatory offences beyond a reasonable doubt. Thus, the Crown must prove that the accused polluted the river, sold adulterated food, or published a false advertisement. [Emphasis added]
[13] The actus reus of an offence is always defined by the words of the statute or regulation: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43; R. v. Shergill, 2016 ONCJ 163, at para. 11.
[14] The language of s. 182 of the HTA is quite specific. It follows that the actus reus of the offence of disobey sign is equally specific. The section reads as follows:
182 (1) 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 the signs and markings and the location on the highway of each type of sign and marking and prohibiting the use or erection of any sign or type of sign that is not prescribed.
(2) Every driver or operator of a vehicle or street car shall obey the instructions or directions indicated on any sign so erected. [Emphasis added]
[15] In R. v. Neinstein, 2007 CarswellOnt 5473 (ONCJ), the prosecution, the defence and the appeal judge all agreed that the traffic sign did not comply with the regulations and that the defendant was wrongfully convicted of disobeying a sign contrary to s. 182(2) of HTA. In R. v. Hawkshaw, [2007] O.J. No. 898 (Ont. C.A.), at para. 4, Feldman J. (in Chambers) confirmed that proof of a traffic sign is a "factual determination based on the evidence". In R. v. Irwin, 2007 ONCJ 440, at para. 31, the Court confirmed that there must be sufficient evidence at trial to prove a traffic sign.
[16] In my view, the words of s. 182(2) are quite clear. The prosecution must prove beyond a reasonable doubt that the defendant failed to obey the instructions or directions indicated on a sign erected pursuant to and in compliance with the regulations. The offence is not made out by disobeying any traffic sign. The offence is limited to traffic signs prescribed pursuant to s. 182(1) and in compliance with the associated regulations. A traffic sign's compliance with the regulations is part of the actus reus of the offence.
[17] The regulatory requirements for traffic signs are often detailed. In some cases—a photo of or testimony describing the traffic sign may be sufficient to prove that the sign complies with the regulations. In other cases—more investigative resources may be needed to prove such things as sign visibility, placement or measurements. Proving strict compliance can therefore raise some prosecutorial challenges. As will be explained below—the courts have recognized two legal mechanisms that the prosecution may advance to help prove that a sign complies with the regulations, namely: the common law presumption of regularity; and the principle of substantial compliance. Notwithstanding the availability of these legal mechanisms—it is essential to remain mindful that the Legislature has defined the actus reus of the offence at s. 182(2) in a manner that requires proof of the traffic sign's compliance with the regulations.
The Prescribed Sign for a "No Left Turn or Proceeding Straight Through" Intersection
[18] The Lieutenant Governor in Council has made regulations prescribing a specific sign for "no left turn or proceeding straight through" intersections: R.R.O. 1990, Reg. 615, s. 22(2). Subsection 22(2) reads as follows:
(2) A sign that prohibits a vehicle from making a left turn or proceeding straight through an intersection shall,
(a) be not less than 60 centimetres in height and not less than 60 centimetres in width; and
(b) include the markings and the dimensions as described and illustrated in the following Figure:
Text alternative: Illustration of a sign with a "No left turn or proceeding straight" symbol consisting of branching black arrows curving left and proceeding straight, inside a red circle with an interdictory stroke on white retro-reflective background with a black border. Indicated sign size (60 × 60) cm. This text alternative is provided for convenience only and does not form part of the official law.
R.R.O. 1990, Reg. 615, s. 22(2); O. Reg. 332/98, s. 3(2); O. Reg. 339/09, s. 16(2).
[19] There are other relevant regulations governing this prescribed sign, including:
the above-illustrated sign is the only valid sign for "no left turn or proceeding straight through" intersections (R.R.O. 1990, Reg. 615, s. 22(4)(b));
the sign can only be lawfully erected by a municipality or an authority having jurisdiction over a highway (R.R.O. 1990, Reg. 615, s. 46);
the sign must be visible at all times from a distance of 60 metres (R.R.O. 1990, Reg. 615, s. 45); and
the sign may be bigger than the prescribed dimensions in certain circumstances (R.R.O. 1990, Reg. 615, s. 44).
[20] The prescribed traffic sign illustrated and described above is not the sign Cst. Renaud described and that he believed was at the intersection of Main and Front Streets.
III. Proving That a Traffic Sign is Lawful—under s. 182(2) HTA
Proving That an Intersection is Designated as "No Left Turn or Proceeding Straight Through"
[21] The Municipal Act, 2001, S.O. 2001, c. 25 and the HTA provide municipalities with significant authority to regulate traffic and parking within municipal boundaries. A municipality will enact by-laws to regulate traffic at intersections (and otherwise), including the authorization to erect the necessary traffic signs. Intersections can have different designations (e.g. four-way stops, as requiring traffic lights or otherwise). There is a body of case law that maintains that the prosecution must prove such by-law designations in order to establish that the conduct alleged was illegal at the particular location it is said to have occurred: R. v. Lavelle, [1958] O.J. No. 346 (Ont. H.C.); R. v. Potapchuk, [1963] 1 O.R. 40 (Ont. H.C.); R. v. Clark, [1974] O.J. No. 1904 (Ont. C.A.); Ontario v. Druce, 2006 ONCJ 183.
[22] In R. v. McLaren, [1981] O.J. No. 51 (Ont. C.A.), the Court of Appeal for Ontario, stated, at para. 4:
Although we are satisfied that it is necessary to prove the existence of the by-law designating a crossover, we are all of the opinion that the evidentiary burden may be satisfied by inference from evidence of the existence of such a crossover indicated by signs and markings of the kind that are commonly associated with pedestrian crossovers in this province. In our opinion, the decision of this Court in R. v. Clark (1974), 3 O.R. (2d) 716, 18 C.C.C. (2d) 52 governs the disposition of this appeal with respect to the proof required to establish the existence of the by-law, and the learned judge erred in law in holding that in the circumstances of this case there was no evidence establishing the existence of the by-law. [Emphasis added]
[23] Municipal by-laws must be proven. There is no legislative authority to take judicial notice of a municipal by-law. The more conventional ways to prove a municipal by-law are by way of the provisions of the Municipal Act (s. 447.6) and the Evidence Act, R.S.O. 1990, c. E.23 (ss. 29 and 31(2)). McLaren, however, confirms that a municipal by-law may also be proven by drawing reasonable inferences from the trial evidence, including the presence of an appropriate traffic sign. In Neinstein, Bovard J. indicated that a traffic sign should not be used to infer the existence of a by-law unless the prosecution first shows that the sign complies with the regulations. McLaren defined the degree of compliance required to draw an inference as "signs and markings of the kind that are commonly associated" with the designation sought to be established. Whether the required evidentiary threshold is met is always a question of fact to be determined on a case-by-case basis.
[24] In contrast, it may be easier to prove the legal designation of an intersection located outside of municipal boundaries and established by provincial statute or regulations. A court must take judicial notice of provincial statutes and regulations: Legislation Act, 2006, S.O. 2006, c. 21, Schedule F, ss. 13 and 29.
[25] The intersection of Main and Front Streets is located in the Municipality of West Nipissing. At trial, the prosecution did not—by way of the Municipal Act or the Evidence Act—establish the by-law designating the intersection as "no left turn or proceeding straight through". The existence of the by-law could not be inferred from the evidence at trial, as was the case in McLaren. The evidence at trial was not sufficient to make a determination with respect to the type, details or physical characteristics of the traffic sign at issue. The evidence was therefore not sufficient to conclude that the traffic sign was of the kind commonly associated with a "no left turn or proceeding straight through" intersection and to permit a reasonable inference as to the existence of the by-law.
Proving the Traffic Sign Complies with the Regulations
[26] As noted above—whether a traffic sign complies with the regulations is a question of fact. The prosecution may—if applicable—rely on two legal mechanisms to help prove signage: the common law presumption of regularity; and the principle of substantial compliance.
The Common Law Presumption of Regularity
[27] The actions of public officials are presumed to have been performed with lawful authority and in compliance with the law unless otherwise proven. That is the essence of this rebuttable presumption. Its origins predate the Charter. The presumption has been adapted and found application in varied legal settings from the execution of wills to the legal requirements associated with a valid criminal Information: Re Laxer, [1963] O.J. No. 659 (Ont. C.A.); R. v. Molina, 2008 ONCA 212; R. v. Kapoor, [1989] O.J. No. 1887. It has found application in helping prove that traffic signs (e.g. speed limit signs) comply with regulatory requirements: R. v. Garbarino, 2010 ONCJ 300; R. v. Hawkshaw, 2006 ONCJ 536 (leave to appeal refused - R. v. Hawkshaw, [2007] O.J. No. 898 (Ont. C.A.)).
[28] The presumption is grounded in reasonable probability and inferences. It is presumed that an official act was fully and properly performed where—there is some evidence of an intention to perform the official act and some evidence that the official act was performed properly, but the circumstances of the case are such that compliance with all of the legal requirements "can only be inferred as a matter of probability": see Re Laxer, at para. 28, citing Harris v. Knight (1890), 15 P.D. 170. In my view, it cannot be overstated—that for the presumption to operate there must first be some evidence before the court that the official act was performed properly.
[29] In Lavelle, at para. 4, Landreville J. explained the significance of establishing the authority to erect a traffic sign and the application of the presumption in helping prove that a traffic sign complies with the regulatory requirements:
…I do hold that when it is established that a sign has been erected in pursuance of the Regulations, of an Order in Council and of a by-law, it is a reasonable inference and there must be a presumption that the officials of the municipality, acting under instructions, have so erected a sign in size, colour and in location in compliance with the Regulations. They are skilled and experienced in that matter and it must be presumed that they have carried out their instructions. [Emphasis added]
[30] In Molina, the Ontario Court of Appeal provided additional guidance on the application of the presumption of regularity in criminal proceedings. The Court confirmed that:
the presumption does not automatically apply—the Wigmore conditions must be satisfied (at para. 20);
the Wigmore conditions are as follows (at para. 12)—
... first, that the matter is more or less in the past, and incapable of easily procured evidence; secondly, that it involves a mere formality, or detail of required procedure, in the routine of a litigation or of a public officer's action; next, that it involves to some extent the security of apparently vested rights, so that the presumption will serve to prevent an unwholesome uncertainty; and finally, that the circumstances of the particular case add some element of probability… ;
caution is warranted in its application to criminal proceedings because it would run counter the principles of criminal law to largely base a finding of guilt on the presumption (at para. 13); and
the trial evidence that rebuts the presumption may come from prosecution or defence witnesses (at para. 20).
[31] Where the presumption is at issue—it appears the defendant must meet two burdens of proof. The defendant has to first meet an evidential burden—to point to sufficient evidence that supports a sense of reality that the presumption should not apply. If that burden is met—the defendant would have to meet a persuasive burden on a balance of probabilities that the presumption does not, in fact, apply: R. v. De Boerr, 2013 ONSC 2988, at para. 8; aff'd 2016 ONCA 634.
[32] In the present case, the prosecution could not rely on the presumption of regularity to help establish the traffic sign's compliance with the regulations. The evidence at trial rebuts the presumption. The evidence at trial was not sufficient to make a determination with respect to the type, details or physical characteristics of the traffic sign at issue. The last Wigmore condition was therefore not met, namely—that the circumstances of the case add some element of probability that the official act was performed correctly. The evidence would actually indicate that the official act was not performed correctly because the sign Cst. Renaud described and that he believed was at the intersection was not the one required by the regulations.
The Principle of Substantial Compliance
[33] In R. v. Priest, [1961] O.J. No. 98 (Ont. C.A.), the Court concluded that a stop sign must be obeyed when it is in substantial compliance with the regulations. In Toronto (City) v. Brent, 2013 ONCJ 296, Nakatsuru J. confirmed Priest to be binding authority and applied both the principle of substantial compliance and the presumption of regularity to speed limit signs.
[34] Whether the threshold of substantial compliance with the regulations is met—is a question of fact to be determined on the admissible evidence at trial. In Priest, at para. 10, the Court defined the parameters of the principle of substantial compliance, as follows:
…a stop sign that complies, though not strictly, but so substantially, with the regulations as to reasonably indicate that it is authoritative and erected by the competent authority in intended compliance with its power under the Act, in my opinion, is equally binding on the driver, provided that he could have seen it if he was keeping a proper lookout.
[35] In the present case, the prosecution could not rely on the principle of substantial compliance to help prove the traffic sign's compliance with the regulations. The evidence at trial was not sufficient to make a determination with respect to the type, details or physical characteristics of the traffic sign at issue. The evidence was therefore also insufficient to meet the threshold of substantial compliance with the regulatory requirements.
Charter Considerations
[36] No readily apparent Charter issues surfaced during the trial. However, after reviewing the case law, I became alert to potential s. 11(d) Charter issues raised by the presumption of regularity and the principle of substantial compliance in relation to the offence of disobey sign (i.e. s. 182(2) HTA). Simply put—those two legal mechanisms could be viewed as relieving the prosecution of its s. 11(d) obligations to prove an element of the actus reus of the offence, namely a traffic sign's compliance with the regulations. There was also the related issue of the use of a presumption to prove an essential element of an offence: see Molina, at para. 13; S.N. Lederman, A. W. Bryant, M.K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada Inc., 2018) at p. 173.
[37] This case was, however, decided on other grounds. I determined that the presumption of regularity and the principle of substantial compliance did not apply in the present case. There was therefore no need to ask the parties to return before me to address potential Charter issues. Those issues are left to another day with a complete record and full argument.
IV. Conclusion
[38] This trial unfolded in somewhat unique fashion. Mr. Langlois believed that his conduct was prohibited, but he avoids liability because the prosecution failed to prove an element of the actus reus of the offence beyond a reasonable doubt. It failed to establish that the traffic sign at issue met the regulatory requirements. The need to prove the actus reus of an offence—as defined by the words of the statute or regulation—is not a technicality. It is a constitutional imperative.
[39] I share the view that the offence of disobeying a sign (s. 182(2) HTA) is a strict liability offence: R. v. Nui, 2015 ONCJ 379, at para. 15; R. v. Foresto, 2016 ONCJ 695. The onus to establish a defence of due diligence or otherwise does not shift to the defendant until the prosecution first proves the actus reus. It failed to do so, which decides the case. It was therefore not necessary to determine if Mr. Langlois' defence of necessity would have been made out in the circumstances of this case.
[40] In closing, I simply wish to confirm the following. At the end of submissions, I provided the parties with the opportunity to submit case law in support of their positions. In late June, Mr. Langlois submitted a letter that, in my view, contained evidence. I did not consider the content of that document in reaching my decision.
[41] For the reasons stated herein, I found Mr. Langlois "not guilty" of the offence of disobeying a sign, contrary to s. 182(2) of the HTA. This completes my reasons.
Released: November 2, 2018
"J.G. McMahon"
Signed: Justice of the Peace J.G. McMahon