ONTARIO COURT OF JUSTICE
BETWEEN:
REGION OF HALTON Prosecutor
— and —
JAMIE RESTREPO Defendant
Trial before Justice of the Peace T.J. Howard
Heard: November 6, 2024, in Burlington, ON. Written reasons for judgment released: December 10, 2024, Burlington, ON.
Counsel: Mr. Jones, for the Prosecution Ms. Burness, for the Defendant
T.J. HOWARD, J.P.
Introduction
[1] The defendant, Mr. Jamie Restrepo, is charged with one count of failing to stop for a school bus (with overhead red lights flashing), contrary to section 175(11) of the Highway Traffic Act, R.S.O 1990, Chapter H.8, as amended. He pled not guilty to the charge.
[2] It is alleged that on November 2, 2022, the defendant was driving a tractor-trailer northbound on Trafalgar Road in the Town of Milton. It is alleged that the defendant approached – from the front – a school bus stopped in the southbound lane with its overhead red lights flashing but failed to stop. This was observed by a Halton Regional Police Inspector, who was in his vehicle stopped behind the school bus. The Inspector made a U-turn to stop the defendant, and at no point observed the front of the school bus. The event was captured by the Inspector’s in-car camera system.
[3] The prosecution presented the viva voce testimony of Halton Regional Police Inspector Vanderlelie. Inspector Vanderlelie’s in-car camera footage was tendered as exhibit 1. The school bus driver did not testify and there was no defence evidence presented.
[4] I heard the trial on November 6, 2024, in Burlington, Ontario and reserved for a decision on December 10, 2024. For the reasons herein, I find that the prosecution has failed to prove the case beyond a reasonable doubt. Thus, the charge is dismissed.
Position of the Parties
The Defence
[5] Ms. Burness, for the defendant, argues that the prosecution has failed to prove the case beyond a reasonable doubt, because the essential element of flashing overhead red lights (on the front of the school bus) has not been established. Specifically, Ms. Burness argues that there is no direct evidence that the front overhead lights of the school bus were flashing while it was stopped, and neither the circumstantial evidence presented, nor the presumption of regularity are sufficient to support a finding that the lights were flashing.
[6] Moreover, Ms. Burness argues that the presumption of regularity does not function in this context.
The Prosecution
[7] Mr. Jones, for the prosecution, argues that the available direct and circumstantial evidence, along with the presumption of regularity is sufficient for a finding of guilt. Specifically, Mr. Jones argues that the testimony of Inspector Vanderlelie in conjunction with the video footage shows that the rear overhead lights of the school bus were flashing, and that oncoming vehicles behind the defendant stopped as required, which together suggests that the front overhead lights of the school bus were also flashing.
[8] Furthermore, Mr. Jones argues that a school bus is a commercial motor vehicle, thus, the driver was bound by statute to conduct pre-trip inspections to ensure the overhead lights were functioning correctly. In the absence of evidence to the contrary, Mr. Jones argues that I should rely on the presumption of regularity to find that these pre-trip inspections must have taken place, and the school bus must have been functioning correctly, because it was ultimately taken on the road. Mr. Jones submits the case of R. v. Fox, [2014] O.J. No. 4293 (Ont. C.J.) to support his position.
Issues, Analysis, and Findings of Fact
[9] Section 175(11) of the HTA imposes a duty on drivers when meeting a stopped school bus. The section reads:
(11) 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. 2017, c. 26, Sched. 4, s. 21 (1).
[10] Notably, “overhead red signal-lights flashing” is an essential element of the offence. In this case, whether these lights were flashing on the front of the stopped school bus is the only issue in dispute.
[11] On this issue, there are two central questions: i) does the common law presumption of regularity apply, and if so, does it support a finding that the front overhead lights were flashing? ii) does the available circumstantial evidence support such a finding?
Does the presumption of regularity apply in this case? If so, does it support a finding that the front overhead lights on the school bus were flashing?
[12] The leading case on the common law presumption of regularity is R. v. Molina, 2008 ONCA 212. In Molina, the Court defines the presumption and outlines the conditions that must be present for the presumption to be applied:
[11] The presumption of regularity is a reflection of the Latin maxim: omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium (everything is presumed to be rightly and duly performed until the contrary is shown). As Watt J. noted in R. v. Kapoor, [1989] O.J. No. 1887, 52 C.C.C. (3d) 41 (H.C.J.), at p. 68 C.C.C., it "has especial application in the case of persons who discharge a public or statutory duty".
[12] Various authorities have drawn on the treatise of the great American authority on evidence, Professor John Henry Wigmore, in dealing with the underpinnings of the doctrine. For example, Prowse J.A., speaking for the Alberta Court of Appeal in the context of a breach of probation case in R. v. Scott, 1980 ABCA 299, [1980] A.J. No. 645, 56 C.C.C. (2d) 111 (C.A.), at pp. 113-14 C.C.C., said: [page228]
This statement [See Note 1 below] constitutes an admission by the accused, and is therefore admissible as evidence of compliance with s. 663(4)(a) and (b). The issue is whether, in the absence of positive evidence, the statement supplies an element of probability justifying the presumption that the explanation of sections 664(4) and 666 was delivered by the sentencing judge himself, as required.
In [Wigmore A Treatise on the Anglo-American System of Evidence in Trials at Common Law on Evidence, 3rd ed. (1940), vol. IX, p. 488,] that learned author proposes several conditions for the application of the omnia praesumuntur rule:
. . . 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. [Emphasis added]
[13] This Court approved that statement in R. v. McNamara (1982), 66 C.C.C. (2d) 24 at 28-29, leave to appeal to S.C.C. refused, [1982] S.C.C.A. No. 271. It also approved the following additional admonition by Prowse J.A. in Scott at 114:
I am in respectful agreement with the observation of Parker L.C.J. in Scott v. Baker (1968), 52 Cr. App. R. 566 at p. 571, that very great care must be taken in applying the presumption of regularity in criminal proceedings. To purport to establish the guilt of an accused solely or largely by reliance on such a presumption would amount to a fundamental contradiction of the principles upon which our system of criminal law is based. That is not to say, however, that the presumption has no application. [ Emphasis added]
[20] Once the Wigmore conditions have been satisfied and the presumption of regularity has been found to apply, it is open to the accused to rebut it by way of evidence. The degree of proof required to displace the application of the presumption has been held to be proof on a balance of probabilities. See Kapoor at p. 70 C.C.C. That evidence need not originate from the alleged offender or witnesses for the defence, however. Here, the trial judges and the summary conviction appeal judge all concluded that there was evidence tendered by the Crown that rebutted the presumption, namely the prohibition order itself. [Emphasis added]
[13] The issue of whether the presumption of regularity applies in the case of a stopped school bus with overhead red lights partially visible to police was addressed in R. v. Perry, [2000] O.J. No. 5986 (Ont. C.J.). In that case, the defendant was charged with failing to stop for a school bus with overhead lights flashing. In convicting the defendant, the trial justice of the peace applied the presumption of regularity and concluded that the overhead red lights on the school bus were flashing all the way around, despite no observations of this by the police officer or testimony from the school bus driver.
[14] The defendant appealed the judgement on the ground that the justice of the peace erred in applying the presumption of regularity. The appeal was allowed and the conviction quashed by V.T. Rosemay J., who found that, “it would be improper to presume that the lights were working unless the officer was in a position to make the observation himself” [^1]. The Court did not expand on this finding.
[15] The presumption of regularity has been found to apply in provincial offences cases related to the placement of speed limit signs and the functioning of traffic signals [^2]. These cases, however, do not involve commercial motor vehicles and the inspection thereof generally, nor of school buses specifically.
[16] In my view, the presumption of regularity cannot be applied in this case for two reasons. First, the facts in this case are almost identical to those in Perry. I see no reason to distinguish this case or depart from that finding.
[17] I find the ruling in Fox not to be binding here. That ruling overturned the trial justice of peace’s finding regarding the definition of school bus, and whether there was sufficient evidence to support an inference that the vehicle observed by police was in fact a school bus (not at issue here). Although the presumption of regularity as it relates to commercial motor vehicle inspections was discussed at trial, it was not the issue ruled upon on appeal [^3]. In my view, the ruling in Perry is binding, because the ratio decidendi in that case specifically speaks to the presumption of regularity and its application to the functioning of overhead flashing school bus lights.
[18] Second, in my view, in seeking to rely upon the presumption, the prosecution had the onus to satisfy the Court that the Wigmore conditions were met. The prosecution failed to do this. For example, the defence directly challenged the first condition – arguing that evidence from the school bus driver could have been easily procured. The prosecution failed to explain why this evidence could not have been easily procured.
Does the circumstantial evidence support a finding that the front overhead lights on the school bus were flashing?
[19] The test regarding circumstantial evidence comes from R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33. At paras. 35 to 38 the Court states:
35 At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts" see R. v. McIver, [1965] 2 O.R. 475, at p. 479 (C.A.), aff'd without discussion of this point, [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt. (Emphasis added)
36 I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence": para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. (Emphasis added)
37 When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd, [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
38 Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
[20] The prosecution argues that the direct evidence from Inspector Vanderlelie about his various observations, and the video footage, together provides sufficient circumstantial evidence to support an inference that the front overhead lights of the school bus were flashing, and thus the defendant is guilty. The defence disagrees and argues that the defendant’s failure to stop for the school bus is itself circumstantial evidence that could support a reasonable inference that the overhead lights were not flashing.
[21] In my view, there is both evidence and a lack of evidence that could support an inference other than guilt.
[22] Inspector Vanderlelie testified that he observed the lights on the back of the school bus flashing; that the stop arm of the school bus was actuated; and that two vehicles behind the defendant stopped ahead of the school bus as required. I accept all of this, as the Inspector’s testimony was both credible and reliable. Furthermore, this evidence is corroborated by the video footage.
[23] Respectfully however, Inspector Vanderlelie’s conclusion that the two vehicles behind the defendant stopped because the lights on the front of the school bus were flashing is not sound. Under cross examination, the Inspector testified that as he made his U-turn, he fully activated his lights and sirens. The video footage shows that he did this at the same time the two vehicles were stopping ahead of the school bus. The defence posits that the two vehicles behind the defendant may have stopped in response to the Inspector’s lights and sirens, not the school bus lights. In my view, this is reasonably possible.
[24] Furthermore, even if this did not occur, the evidence from Inspector Vanderlelie and the video footage shows that the stop arm on the school bus was actuated at the time. Thus, the two vehicles behind the defendant may have stopped in response to the stop arm alone, not flashing lights. Importantly, failing to stop for a school bus with the stop arm actuated is a separate offence under the HTA [see s. 175(11.1)]. It is not the offence charged in this case.
[25] There is no evidence in this case about the front of the school bus, and neither the school bus driver, nor any of the other drivers testified. Therefore, there is no evidence to negative the reasonable possibility that the overhead lights on the school bus were not functioning correctly, and the other vehicles stopped for a reason other than the overhead lights.
[26] For all these reasons, the charge is dismissed.
Justice of the Peace T.J. Howard
Notes
[^1]: R. v. Perry, [2000] O.J. No. 5986 (Ont. C.J.), para. 27 [^2]: See for example R. v. Garbarino, 2010 ONCJ 300; R. v. Hawkshaw, 2006 ONCJ 536; Durham (Regional Municipality) v. Bartlett, [2017] O.J. No. 2732, 2017 ONCJ 333; York (Regional Municipality) v. Lam, [2018] O.J. No. 5037; R. v. Crowe, [2003] O.J. No. 2 [^3]: R. v. Fox, [2014] O.J. No. 4293 (Ont. C.J.), para. 19