Court Information

Ontario Court of Justice

Date: November 8, 2018

Court File No.: FO-3160-999-00-4168187B-00

In the Matter of: An appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Parties

Between:

The Corporation of the City of Brampton Respondent

— and —

Michael E. Robinson Appellant

Court Details

Before: Justice M.M. Rahman

Reasons for Judgment released on: November 8, 2018

Counsel:

• Kevin Wiedekowsky, for the respondent
• The appellant Michael Robinson, on his own behalf

On appeal from: A conviction by Justice of the Peace Quon on August 18, 2017

Judgment

RAHMAN J.:

I. Overview

[1] The appellant, Michael Robinson, appeals his conviction for disobeying a sign contrary to s. 182(2) of the Highway Traffic Act (HTA). The main issue in this appeal is whether the appellant disobeyed a sign prohibiting U-turns. The appellant argued that the trial court misinterpreted the meaning of a U-turn and therefore erred by convicting him of the offence. The appellant argued that he did not make a U-turn because he pulled off the roadway into a private driveway to change the direction of his travel.

[2] The appellant also raised concerns about the way his trial was conducted. He argued that the justice appeared to become an advocate for the prosecution, and that the justice relied on evidence and arguments that were not before him.

[3] For the reasons that follow, I conclude that the appellant's trial was fair and that the trial justice did not act as an advocate for the prosecution. Further, I find that the appellant did disobey the U-turn sign because the driving manoeuvre he did was a U-turn. However, I will allow the appeal and vary the decision below, because the prosecutor quite reasonably agreed that it would be appropriate to enter a finding of guilt for an offence that would not have adverse insurance consequences for the appellant.

II. Facts of the Offence

[4] The only witness at the appellant's trial was Cst. Orgill. The appellant did not testify and did not call any testimonial evidence. The appellant did enter a Google map printout showing the area that the offence took place.

[5] The appellant accepts the justice's finding that he was driving northbound on Sunforest Drive, north of Bovaird Drive, in Brampton. There is also no issue that the appellant drove by a "No U-turn" sign on the street, and then turned left into a driveway at 6 Sunforest Drive. The appellant then backed out of the driveway and drove southbound.

[6] Cst. Orgill testified that the appellant's car did not completely leave the roadway because its front wheels stopped on the sidewalk and its rear wheels remained on the road. The defendant disputes this area of evidence and said that his car was completely off the roadway and completely on the driveway.

III. Grounds of Appeal

[7] Although the appellant's main argument was directed at the definition of a U-turn, he did make other arguments both about what he perceived was the fairness of his trial and also the sufficiency of evidence against them. I will address those arguments first.

A. The Allegation that the Trial Justice was an Advocate

[8] The appellant argued that the justice's approach in his reasons for judgment demonstrate that he became an advocate for the prosecution and was no longer a neutral arbiter. The appellant argued that the justice's reasons read as if the justice was not impartial. In the same vein, the appellant argued that the justice's inclusion of his own legal research, and the justice's failure to allow the appellant to respond to those cases was unfair.

[9] The appellant's argument about the way the reasons were written is essentially an allegation of a reasonable apprehension of bias. In short, he is arguing that a reasonable person, fully informed of the circumstances would conclude that the justice was on the prosecutor's side from the outset and did not approach the case with an open mind. The appellant's argument that the justice did his own legal research amounts to an allegation that he was denied his right to be heard, since he was not allowed to respond to those cases and statutory examples from outside Ontario.

[10] I do not find a reasonable apprehension of bias or a denial of the right to be heard here.

[11] There is a strong presumption of judicial impartiality. In R. v. S. (R.D.), the Supreme Court re-affirmed the long-standing test to be applied in determining whether judicial conduct has led to a reasonable apprehension of bias as follows:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. . . ."

[12] First, the justice's use of cases and non-Ontario law (both cases and statutes) not raised at the trial, does not constitute a reasonable apprehension of bias, or a denial of the right to be heard. Judges may reserve their decisions after hearing argument from the parties, and conduct their own follow-up legal research on the issues. Merely doing legal research, and including the results of that research does not, on its own, lead to a reasonable apprehension of bias. As I explained to the appellant during the hearing, the additional legal research that the justice did in this case did not mean that the justice was relying on new evidence, or that he went beyond the record of the trial proceedings.

[13] In fairness to the appellant, who is not familiar with the legal system, it is understandable why the justice's citation of additional cases might have come as a surprise to him and may have seemed unfair. It is also understandable why the way the justice drafted his reasons might seem, to someone unfamiliar with the legal system, that the justice favoured the prosecution. After all, the reasons are a comprehensive argument against the appellant's position and cite cases not referred to at the trial. However, the justice in this case did nothing wrong and did not overstep his role as a neutral arbiter. A reasonably informed person, familiar with the role of a justice, would not have any concerns about his impartiality.

[14] Further, the justice's inclusion of his post-trial research did not deprive the appellant of his right to be heard. Again, while it might have been preferable for the justice to have allowed the appellant to respond to the additional cases, he was not required to in this case. I say that principally because the inclusion of this research was not necessary to reach the result. As I will explain below, the statutory interpretation issue can easily be resolved without resorting to law from outside of Ontario. And that additional research raised nothing significant or new that the appellant could have addressed, in a way that would have changed the result in this case.

[15] While the justice's reasons very comprehensively deal with the appellant's arguments (and more), in my view the justice was simply being diligent and ensuring that he had the correct answer to a question of statutory interpretation. If anything, his exhaustive research seems to have been an attempt to ensure that he reached the right answer, not simply the answer the prosecution urged on him. His apparent enthusiasm for deciding the legal issue should not be confused with being an advocate for one side or another.

[16] This ground of appeal fails.

B. The Officer's Observations

[17] As mentioned above, the prosecution only called one witness, Officer Orgill. The appellant did not testify or call any witnesses.

[18] The appellant took issue with the reliability of the officer's observations. He said that because of the position of the sun, the officer could not have made the observations that he purported to make.

[19] I do not have the trial transcript. The appellant did not file it on appeal. However, it is clear that there was no evidence to contradict the officer's evidence. It is apparent that the officer must not have agreed with the appellant's suggestion that the sun would have prevented him from making the observations he did. The justice heard the evidence and made a factual finding. As an appeal court, I cannot change his factual finding unless the appellant can show that it was clearly wrong, or based on a misunderstanding of the evidence.

[20] Having said that, even if I accept that the officer was mistaken about how far the appellant drove into the driveway, it would not affect my conclusion. The appellant took no issue with the fact that he turned into the driveway. He only took issue with how far into the driveway he went. As I will explain below, whether he was completely on private property, or still partially on the public roadway, my decision that he disobeyed the sign would not change.

C. The Appellant Made a U-Turn

[21] I agree with the trial court's decision that the appellant disobeyed the sign by making what is colloquially known as a U-turn. The justice conducted a comprehensive review of the law in Ontario as well as other jurisdictions. In my view, it is not necessary to look any further than the text of the HTA to determine that the appellant was properly convicted.

[22] Although the appellant was not charged with the offence of making a U-turn, under s. 143 of the HTA, that section is instructive determining what a U-turn is and what a no U-turn sign prohibits. Statutes are presumed to use terms in a consistent fashion throughout.

[23] Under the heading "U-turns Prohibited," s.143(1) states that "No driver or operator of a vehicle upon a highway shall turn the vehicle so as to proceed in the opposite direction" in four different circumstances. The prohibited action is turning one's vehicle so as to proceed in the opposite direction.

[24] First, it is important to note that the term "U-turn" does not actually form any part of the definition. It is true that the heading to s. 143 says "U-Turns Prohibited." However headings do not form part of the legislation and are included only for ease of reference. The use of the colloquial term "U-turn" has the unfortunate effect of suggesting that a car must drive in the shape the letter "U," and that it must do so in one continuous movement.

[25] Second, the provision prohibiting U-turns quite clearly says that drivers may not turn their vehicle in a manner that causes them to go in the opposite direction. There is no restriction on that definition. Nor is there any suggestion that pulling partially or completely off the roadway for a moment, does not involve changing one's direction.

[26] I cannot accept the appellant's argument that by moving partially, or completely, off a public roadway onto private property, he did not disobey the U-turn sign. Assuming that s.182(2) requires the offence to occur on a highway, it would be artificial to say that the appellant's U-turn did not occur upon a highway. The movement started and finished on a highway. This is not a case where the movement took place entirely off a highway. The appellant started and finished the movement on a highway. The appellant was a "driver" within the meaning of the HTA when he pulled off the highway and back onto the highway. In my view, using private property to complete a movement that started and finished on a highway falls within the ambit of a U-turn prohibited by such a sign.

[27] I also cannot accept the appellant's argument that the prohibition against U-Turns is directed only at road safety, and therefore a turn like the appellant's cannot be considered a U-turn if there is no evidence it affected road safety. The fact that municipalities may erect signs prohibiting U-turns suggests that safety is not the only rationale behind prohibiting them in certain locations. Municipalities regulate about more than safety. While municipalities may have safety issues in mind when they erect traffic signs, they may also be concerned with issues such as traffic flow that may have no direct connection to safety issues. A municipality may want to prevent a particular residential street from becoming a place that many cars use to change direction, even where changing direction poses no direct safety risk. Therefore, I see no reason why the definition of a U-turn must only refer to a manoeuvre that is unsafe.

[28] The trial justice's interpretation of U-turn was correct. The appellant was properly convicted of the offence with which he was charged.

IV. Disposition

[29] At the hearing of the appeal, the appellant said that his main concern was the insurance consequence resulting from his conviction. The respondent's representative very fairly agreed that, if this court agreed with the trial court that the appellant made a prohibited U-turn, the respondent would not oppose a variation of the conviction for one that would likely not result in adverse insurance consequences. The appellant said that he would accept that resolution should his arguments on the appeal not prevail.

[30] Subsection 138(1) of the Provincial Offences Act permits an appeal court "to affirm, reverse or vary the decision appealed from." It appears that this court's jurisdiction to vary the decision appealed from would permit substituting a conviction for a different offence, with the consent of the parties.

[31] Consequently, the order below convicting the appellant for the offence of disobeying a sign is varied to a conviction for disobeying a sign, contrary to s.20.1 of Brampton by-law 93-93.

Released: November 8, 2018

Justice M.M. Rahman

Footnotes

[1] The appeal proceeded without a transcript of the evidence in the trial court. The appellant informed me during the hearing that he did not testify.

[2] R. v. S. (R.D.), [1997] 3 SCR 484 at para. 111, citing Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369.

[3] Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 70.