Court Information

Date: April 9, 2019

Ontario Court of Justice

Between: Her Majesty the Queen — AND — Michael Montemurro

Before: Justice of the Peace S. Mankovsky

Heard on: February 4, 2019

Reasons for Judgment released on: April 9, 2019

Counsel

Ms. I. Szenes — Municipal Prosecutor

Mr. J. Petrosoniak — Counsel for the Defendant

Judgment

JUSTICE OF THE PEACE S. Mankovsky:

Preliminary Matter

[1] This matter appeared before me on February 4, 2019 and was adjourned to April 9, 2019 for Judgment.

The Charge

[2] Mr. Michael Montemurro is charged with the offence of riding a bicycle in James Gardens in the City of Toronto where prohibited in a park.

The Law

[3] Chapter 608 Section 29(a) of the City of Toronto Municipal Code states that:

While in a park, no person shall ride or operate or be in possession of a bicycle where posted to prohibit bicycles.

[4] I am satisfied that the offence is a strict liability offence. The Prosecution is required to prove all the elements of the offence beyond a reasonable doubt. A strict liability offence provides the Defendant with the right to a due diligence defence and shifts the burden to the Defendant to prove that on the balance of probabilities, the Defendant took all reasonable care to avoid committing the offences.

[5] In its decision, R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, Dickson J, writing for the court, states with respect to the definition of a strict liability offence as offences in which there is no necessity for the Prosecution to prove the existence of mens rea. The doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable person would have done in the circumstances. The defence would be available if the accused reasonably believed in a mistaken set of facts, which if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.

[6] In Levis City v. Tetreault, 2006 SCC 12, the Supreme Court of Canada explained the Sault Ste. Marie decision with respect to the application of due diligence by saying under the approach adopted by the Court, the accused in fact has both the opportunity to prove due diligence and the burden of doing so.

[7] An objective standard is applied, under which the conduct of the accused is assessed against that of a reasonable person in similar circumstances, or in the alternative, the defendant must satisfy his burden that on a balance of probabilities, an authorization, exception, exemption or qualification prescribed by law operates in his favour.

Evidence for the Prosecution

[8] Mr. Zoran Kostovski testified that he is employed as a by-law enforcement officer by the City of Toronto.

[9] On Thursday, August 9, 2018 at 7:50 a.m. he and a number of officers were conducting a "blitz", or focused, enforcement of the by-law within James Gardens because residents had complained that bicyclists were not dismounting their bicycle while crossing the bridge. Residents also reported that bicyclists had addressed them with inappropriate language, such as telling them to get out of the way. It appeared that this was also offensive because children appear to have been present to hear such language.

[10] Officer Kostovski described the bridge as constructed of wood planks with wooden rails that passes over a small river. He said there is a sign at the entrance to the bridge, on either side of the bridge that says: "CAUTION—CYCLISTS PLEASE DISMOUNT AND WALK ACROSS THE BRIDGE".

[11] Then there is another sign that states: "CAUTION—CYCLISTS DISMOUNT AND WALK BICYCLES OVER THE BRIDGE" and it states "IN-LINE SKATERS SLOWDOWN NOW AND PROCEED ACROSS THE BRIDGE. PROCEED SLOWLY."

[12] The four photos that Officer Kostovski took on August 9, 2018 were marked as Exhibit 1 collectively. He went on to describe the first photograph, labelled as 1-A, stating that the sign that was erected by the City of Toronto includes the governing by-law namely, Municipal Code Chapter 608. Beside that sign, another sign is posted, as per Chapter 608 regarding dogs to be on leash and telling pet owners to pick up after their pets.

[13] Officer Kostovski went on to testify that while he was standing at one of the entrances to the bridge, the defendant was crossing the bridge from the opposite side driving his bicycle toward Officer Kostovski's position. He approached the defendant, introduced himself, explained his reason for being there and asked him to identify himself. He identified himself verbally as Michael Montemurro and he was wearing workplace identification. Officer Kostovski was satisfied with his identification.

[14] Officer Kostovski explained the purpose and reason for his presence at that location to Mr. Montemurro. Specifically he told him that residents who use the park had complained that they felt threatened and frightened, particularly when cyclists rode their bikes at a high speed. The residents also expressed concern for the safety of children who were walking on the bridge as cyclists rode their bicycles by them. Although the bridge could accommodate two lanes of traffic, and was slightly wider than a sidewalk, residents felt unsafe when bicycles moved at a high speed past them. After he did that, he charged Mr. Montemurro with the offence before the Court, and he issued him with a certificate of offence.

[15] On cross-examination, Mr. Petrosoniak inquired whether the Officer recognized that the sign contained the word "warning" but did not actually contain any word that specifically prohibited bicycle riding and used the word "prohibit" or another word that would convey that meaning. Officer Kostovski responded that the signs he had addressed at the bridge were the only signs that were posted.

[16] He continued to inquire about knowledge Mr. Kostovski might have regarding this bike path being posted on the City of Toronto website indicating it as a bicycle trail. Ms. Szenes intervened to clarify that there is no evidence that this was a bike path or a bike trail. Rather, the evidence is with respect to a park and a bridge within that park. In reply to Mr. Petrosoniak continuing to pursue through his questions that the matter pertained to a multi-use trail, Mr. Kostovski replied:

I just know it as a bridge. I'm not sure what the other uses are for it but pedestrians walk on it.

[17] The exchange continued as follows:

Mr. Petrosoniak: Right. Pedestrians, rollerblades or cyclists. Everybody's using that. I'm talking about the trail system, both sides. It's paved.

Mr. Kostovski: Cyclists when they dismount their bicycles, definitely.

Mr. Petrosoniak: Right. Paved on both sides of that bridge?

Mr. Kostovski: There is soil on one, like grassy area and I'm not sure about the other side.

Mr. Petrosoniak: All right.

Evidence for the Defence

[18] Mr. Michael Montemurro testified in his own defence. He stated that he rides to work about once a week. He continued that he was familiar with the signage in the park system and that he was riding a bicycle on a bicycle trail. He knew it was a bicycle trail because there is a sign at the entrance to the trail, which he named as the Humber Trail, about 750 metres south of the bridge in question. The Court accepted a photo of the sign as Exhibit 2 for the defence. He described the trail as going parallel to the Humber River on the east side of the river up to the bridge. Then it continues along the west side of the River until Eglinton. He stated that there was no sign that said bicycling was prohibited.

[19] He rode from the south, and was crossing the bridge from east to west. Mr. Montemurro testified further that he saw the officer when he approached the bridge, and that the officer was mistaken: he was coming from the south, crossing the bridge from east to west. When he entered the first couple of metres of the bridge the officer asked him whether he had seen the sign. He answered that he had. He made little of their presence because he had seen them in the recent past enforcing dog off leash.

[20] As a result he entered the bridge. At that point the officer stopped him and discussed the circumstances. He replied that he had seen the sign. The Officer asked him to dismount from his bicycle. He complied and the officer gave him a ticket.

[21] He went on to say that there were no pedestrians on the bridge when he was riding. He saw a single person on the bridge while he was walking across, and he observed a person riding from the north, that is, the west end of the bridge while he was riding his bicycle.

[22] In response to Ms. Szenes, on cross-examination, and on reviewing photograph number one, of Prosecution Exhibit Number One, Mr. Montemurro read the sign. He read the By-law as Municipal Code 608. He read the additional signage as well pertaining to dog owners with pets that stated:

Please have your dog on a leash and please pick up after your pet.

[23] He agreed that sign contains a prohibition. However, he responded to the Prosecutor that the sign that said "Cyclists dismount and walk bicycles over the bridge" was not prohibitive although it contained the word "caution". His interpretation of the sign appeared to be that it was communicating to readers to be cautious, to evaluate the circumstances and if they thought it was necessary to dismount. With this in mind, and not seeing any people on the bridge at the time, he continued travelling on his bicycle. He said that he had just entered the bridge and was on the edge of the wooden part of the bridge, about one metre in when the officer approached him.

[24] Furthermore, Mr. Montemurro testified that the area where he rode went off the trail to which he had referred earlier in his testimony, and then onto a trail that was the transition from Etienne Brule Park to James Gardens.

Submission by the Prosecution

[25] Ms. Szenes stated that there was no evidence before the Court that the location was anything but a park. The signs indicate that the by-law that applies is 608. Chapter 608 of the Toronto Municipal Code applies to parks. There is only oral testimony of the defendant that he believes it to be a bicycle path. Additionally, there was no evidence presented that there were signs indicating a trail or a bike path. She added why would a bike path or trail include signs to dismount?

[26] The signs posted on each side of the bridge indicate that their purpose was to require people riding bicycles to dismount from their bikes to cross the bridge. The defendant chose to disobey the sign on that occasion. He may even have done the same on other occasions as he may have chosen.

[27] The Prosecutor stated that the sign was prohibitory. The defendant was required to do something but chose not to do, placing himself in violation of the specific chapter of the Municipal Code.

Summation by the Defence

[28] Mr. Petrosoniak submitted that the offence is the violation of a prohibition – not to ride a bicycle in that particular area. Mr. Montemurro was cycling on what he described as a designated bike path. He had barely entered the bridge when was stopped by the officer, although the officer asserted that he was further along the bridge. However, it is not disputed that when he was stopped by the officer, he had not yet crossed the bridge.

[29] The issue to be decided was a narrow one. Is a sign that requests someone to dismount or offers a caution a prohibition or is it something else? The by-law states that it is an offence to ride a bicycle where prohibited. Counsel asserted that the sign was a caution, or a warning, or even a request. It wasn't a command not to do something.

[30] As Mr. Montemurro had testified, he understood the caution to mean be careful in the conditions apparent at the time. So, for example, when the wood was wet, or icy, the sign was advising a bicycle rider to exercise caution or care, perhaps to avoid falling off the bicycle.

[31] If the City had intended to prohibit bicycles from being on the bridge, the City would have posted a prohibitory sign. That some people complained about cyclists riding when pedestrians were on the bridge was of no effect in the circumstances. Additionally that no pedestrians were on the bridge was of no effect in the circumstances.

Analysis

[31] Mr. Montemurro made two points in his defence. First, he maintained that the bridge in James Gardens was a part of the totality of the Humber Trail and not a separate entity located in a park that came under the jurisdiction of the City of Toronto. That so, it was reasonable for him to feel less dutiful. However, the Prosecutor pointed out that no evidence was presented to the Court except for the defendant's testimony. It appears from the evidence available to the court that the bridge was indeed located in James Gardens, a park in the City of Toronto. That it may have been part of a geography identified as a "trail" or "path" did not make it any less a bridge within the park.

[32] Secondly, if he did feel obligated by the sign, because to him it was at least cautionary, but not prohibitory or obligatory, it was his prerogative to decide under what conditions he should dismount. In fact, the sign might be addressing primarily the safety of bicycle riders. And even if it was inclusive of persons not on bicycles, he posed no danger to anyone because according to his testimony there was no one on the bridge, and he was only about a metre into bridge when he was stopped by the Provincial Offences Officer. This stop prevented any consequence to users of the park, and it follows, members of the community to whom the signage was directed.

[33] Mr. Montemurro maintained that the signage made a suggestion rather than a prohibition or otherwise put, a command or order to bicycle riders to dismount from their bicycle and to cross the bridge on foot.

[34] The signage communicated the by-law underlying the communication—608, with the City of Toronto logo. The word "caution" acted as an attention getter for the bicycle riding public. Once a person read the communication, a reasonable person would conclude that the wording directed them to dismount from their bicycle, and walk across the bridge. The sign didn't communicate a specific danger. However, one could also reasonably conclude that if a person wasn't sure, they would err on the side of caution and dismount. Perhaps the reason would reveal itself as they crossed the bridge. Additionally, it was open to anyone who didn't know what the particular reason was, and was interested, to contact the City, by any of the means available to a resident, and make an inquiry. Once he entered the bridge on his bicycle, Mr. Montemurro contravened the by-law. However, the foundation of the regulatory regime is both individual and social responsibility. Our goal of a civil society is built on the acceptance of that fundamental value.

[35] Mr. Montemurro didn't indicate at any stage of his defence that he had met the test that was available to him in a strict liability contest. He asserted that he could make an independent decision, regardless of what the text of the sign indicated. He asserted that he was on a bike trail, or path, and not subject even to the reach of the by-law.

Finding and Disposition

[36] I have considered the law as it is laid out in the City of Toronto Municipal Code. I have considered the viva voce evidence in total by the prosecution witness and by the defendant. I have considered the exhibits provided to the court and accepted into evidence. I have considered the submissions by the prosecution and by the defence.

[37] I do not believe the defendant. I have no doubt. The prosecution's witness gave evidence that was clear, concise, forthright and logical. I accept the evidence of the prosecution. The prosecution has proven each of the essential elements of the offence. I find the defendant guilty. A conviction will register.

[38] I now invite the prosecutor followed by the agent for the defendant to make their submissions on sentencing and time to pay.

Released: April 9, 2019

Signed: Justice of the Peace S. Mankovsky