ONTARIO COURT OF JUSTICE

DATE: 2025 06 05
COURT FILE No.: NEWMARKET 4960 – 999-00-2220709X-00

B E T W E E N :

THE REGIONAL MUNICIPALITY OF YORK
Respondent

— AND —

XIAO-MING KUANG
Appellant

Before Justice C. Harper
Heard on May 9, 2025
Reasons for Judgment released on June 5, 2025

C. Gabriel .................................................................................... counsel for the Respondent
M. Mahadeo ....................................................... agent for the Appellant Xiao-Ming Kuang

HARPER J.:

Overview:

[1] Xiao-Ming Kuang was found guilty after trial by Justice of the Peace Levita of the offence of disobey stop sign – fail to stop, contrary to section 136(1) of the Highway Traffic Act of Ontario (HTA).

[2] Mr. Kuang appeals the conviction on several bases that cumulatively amount to request to a retrial of the evidence and/or a claim that the finding was unreasonable. The findings made by Justice of the Peace Levita were reasonably open to him on the record at trial. It is not for this Court to retry the evidence. The appeal is dismissed.

The Trial Record:

Evidence of Officer Audrey Brumell:

[3] Officer Audrey Brumell was working in uniform on January 12, 2023 for the York Regional Police Service. She was in a discreetly marked police vehicle at the three-way stop sign intersection of Carlton Road and Manhattan Drive in Markham.

[4] Officer Brumell’s car was parked facing southbound on Manhattan Drive, just north of the intersection. She was monitoring the stop signs on Carlton Street eastbound and westbound. The stop signs in all three directions were clearly visible. There was a marked stop line on the roadway.

[5] Officer Brumell observed the appellant’s vehicle at 2:45 p.m. as it travelled westbound on Carlton Road slow down but not completely stop at the marked stop sign. The appellant’s vehicle did not stop at all.

[6] Officer Brumell activated her emergency equipment and pulled the appellant over westbound on Carlton Road. The appellant produced his driver’s licence, vehicle registration and insurance. He identified himself as Xiao-Ming Kuang. His driver’s licence had an electronic photograph of him on the card that matched him.

[7] Officer Brumell agreed there were some obstructions of her view towards the stop sign, including a bush, two trees and a mailbox. She agreed, after watching the in-car camera video (Ex. #1) that at 2:44:58 she could not see the vehicle on the video approach the stop sign. But she also testified that she would have been able to see the vehicle through the trees while at the site although she was not 100 per cent certain she observed the car through the trees. She also testified the appellant’s vehicle did not stop at the stop sign on the video.

[8] Officer Brumell agreed the vehicle may have stopped earlier but it would have to have been well before the stop sign and she did not think it stopped.

[9] Officer Brumell agreed that although she testified she was 15 metres from the stop sign, in her notes she recorded she was 10 metres away from the stop sign. She explained that after watching the video in court the appellant’s car could have been farther than the 10 metres recorded in her notes.

[10] Officer Brumell agreed another vehicle did not stop at the stop sign prior to the appellant and she did not stop that vehicle. She did not know why she did not stop the vehicle.

Exhibit #1 – The In-Car Camera

[11] The in-car camera of Officer Brumell recorded the appellant’s car going through the stop sign. The video clearly depicts the stop signs at Carlton Road and Manhattan Drive. There are two trees and a post box by the intersection. While they obstruct the approach to the intersection, there is a clear view of the intersection including the stop signs. At approximately 2:45 on the in-car camera, the appellant’s vehicle can be observed driving through the intersection without stopping at the stop sign as it headed westbound, although it did slow.

Reasons for Judgment:

[12] The appellant was convicted at trial. The Justice of the Peace made the following findings:

Here, the in-car camera video was marked as an exhibit, Exhibit number one. The in-car camera, which is marked as an exhibit in its entirety, depicted the stop sign in question was mounted onto a light post. The officer could see the stop sign and the stop light while making her observations. There is a stop line marked on Carlton Road just before or adjacent to the light post and stop sign. The video clearly depicts a view of about one pone – 1.5 car lengths east of the relevant stop sign and the entire intersection west of that said stop sign. The car did not stop at any time from 1.5 car lengths east of the stop sign and stop line, nor did it stop anywhere west of the stop sign for the entire intersection.

There was never any submission made that the said in-car camera video did not accurately depict the occurrence in question….

This Court must assess all the evidence before it, not just the officer’s viva voce evidence; hence, the fact that the officer could not recall the distance the stop line was in relation to the intersection does not create a reasonable doubt. This Court accepts the video accurately depicts the occurrence absent any evidence to the contrary.

….[T]he officer not giving a reason as to why she did not stop the other motor vehicle that may have disobeyed the stop sign is not relevant. We are not dealing with the defendant’s motor vehicle. By not having an explanation does not put the officer’s credibility into issue, nor does it create any reasonable doubt with reference to any of the essentials of the offence.

[A]nd the submission with reference to her saying in her notes or saying in viva voce evidence that she was 15 metres away from the intersection versus the 10 metres away she indicated in her notes. She gave an explanation. She explained that upon further review of the video, she believed that it may have been 15 metres versus 10. She explained why, and this Court accepts her explanation. And this does not create any reasonable doubt about any of the essential elements of the offence or make her evidence unreliable in any way. The Court accepts her logical explanation.

With reference to the submission that there are some obstructions for her line of sight, a large tree, a good size evergreen, and a post box, with reference to this submission, the evidence was not that there were two large trees. The evidence was there was a bush, a tree, and a post box. The officer testified that she could not see the – the officer never testified that she could not see the motor vehicle there. She just testified that it was an obstruction to her view.

On the video, again, back to the video, we can clearly see that the defendant’s motor – you can clearly see the defendant’s motor vehicle approach that tree in which she was speaking of, and, of course a small portion of the moving vehicle, and the vehicle clearly did not stop at all and continued right past the stop line and the stop sign right into the intersection without ever stopping. Hence, this point creates no reasonable doubt whatsoever….

The officer’s evidence here, Officer Brumell, her evidence – her testimony was clear. It was detailed. It was consistent. Again, this Court accepts her reason for the discrepancy in her notes and in court about the distance from the intersection. The officer was unshaken with reference to all of the – to any and all of the essential elements of the offence.

The Court finds her testimony to be reliable and find her to be a credible witness. The rest of her evidence was also not only internally consistent, but it was also extremely consistent as it was consistent with what we can see in the in-car camera video.

The prosecutor must prove each and – each of the essential elements of the offences beyond a reasonable doubt. This Court shall consider both the officer’s testimony as well as the contents of the in-car camera video which was marked as Exhibit 1.

When considering all the evidence before the Court, this Court finds that the prosecutor has in fact proven each and all the essential elements of the offence of disobey stop sign beyond a reasonable doubt.

The Grounds of Appeal

[13] The appellant appeals on the following grounds:

1. The prosecution did not prove its case beyond a reasonable doubt.
2. The officer’s reliability was undermined by the difference between her notes and testimony about her distance from the stop sign.
3. The officer’s testimony lacked independent recollection of details and specifics.
4. A reasonable doubt must exist because the officer could not see the view before the stop sign.
5. The officer’s inability to explain why she did not pull over another vehicle committing the same offence may indicate selective enforcement.

The Relevant Legislation:

[14] Section 136 (1) of the HTA states:

(1) Every driver or streetcar operator approaching a stop sign at an intersection,
(a) shall stop his or her vehicle or streetcar at a marked stop line or, if none, then immediately before entering the nearest crosswalk or, if none, then immediately before entering the intersection; and
(b) shall yield the right of way to traffic in the intersection or approaching the intersection on another highway so closely that to proceed would constitute an immediate hazard and, having so yielded the right of way, may proceed.
R.S.O. 1990, c. H.8, s. 136 (1).

The Relevant Legal Principles:

The Standard of Review

[15] Section 136 of the Provincial Offences Act provides broad authority to review a matter on appeal (See: R. v. Stephenson (1984), 13 C.C.C. (3d) 112 (Ont. C.A.); R. v. Anderson, [1985] O.J. No. 608 (H.C.J.); R. v. Murray (1983), 27 M.V.R. 66 (Ont. H.C.J.)). But that review is not an open invitation to substitute the view of the court on appeal of the evidence for that of the trial court. Deference must be accorded to the factual findings of the trial court absent a finding that the verdict was not based on the evidence and/or findings made at trial were not available on the evidence. (See: R. v. Francisty (1997), 27 M.V.R. (3d) 220 (Prov Div.); R. v. Ghelichhkhani, 2017 ONCJ 568).

Unreasonable Verdict:

[16] A verdict is unreasonable if a trier of fact could not, acting judicially, reach a verdict of guilty on the evidence at trial. (See: R. v. Yebes, [1987] 2 S.C.R. 168 at p. 185; R. v. Biniaris, 2000 SCC 15 at para 36; R. v. H. (W.), 2013 SCC 22, [2013] 2 S.C.R. 180 at para 26). A finding can be unreasonable if a credibility assessment is not supported by the evidence. (See: R. v. Burke, [1996] 1 S.C.R. 474 at para 5; R. v. H. (W.), at para 30). A reviewing court must re-examine and to some extent, reweigh and consider the effect of the evidence (See: R. v. W.R., [1992] 2 S.C.R. 122). But the reviewing court does not substitute its view for that of the trier of fact. (See: R. v. Yebes at para 25).

[17] Findings of fact are entitled to a high degree of deference and cannot be reversed absent “palpable and overriding error” (See: Housen v Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras 10-18; 22-25; R. v. Kruk, 2024 SCC 7 at para 3; R. v. Gagnon, 2006 SCC 17 at para 20).

Appellate Review of Credibility and Reliability Findings:

[18] Credibility and reliability findings, which are findings of fact, are similarly entitled to a great deal of deference given the distinct advantage a judge or justice of the peace has to observe a witness, an advantage an appellate court lacks (See: R. v. Kruk, at para 3; R. v. Gagnon, at para 17; R. v. Aird, 2013 ONCA 447 at para 39; R. v. U.A., 2019 ONCA 946 at paras 4, 5). An appellate court should not accept an invitation to assess credibility based on transcripts contrary to the trial judge or justice of the peace’s findings absent a lack of evidence for doing so (See: R. v. Burke para 7; R. v. H. (W.) at para 33; R. v. U.A., at paras 4-5).

Analysis:

[19] The grounds advanced by the appellant essentially ask this Court to find the verdict unreasonable or, alternatively, reweigh the credibility and reliability findings of the justice of the peace and substitute its own view.

[20] The findings that the Justice of the Peace made, particularly related to the credibility and reliability of Officer Brumell, were reasonably available to him on the evidence.

[21] The Justice of the Peace was alive to the credibility and reliability challenges made by the appellant to Officer Brumell’s evidence. In particular, the Justice of the Peace was alive to the difference between her testimony at trial that she was 15 metres away from the stop sign and her notes where she recorded she was 10 metres from the stop sign on Carlton Road, and any possible obstructions to the officer’s view as the appellant’s vehicle approached the stop sign. The Justice of the Peace accepted her explanation for the discrepancy in distance and found that while the view was obstructed at times it did not mean she could not see the vehicle. For the latter finding, the Justice of the Peace relied upon the video, as he was entitled, to confirm the evidence of the officer.

[22] More importantly, the justice of the peace accepted the video evidence which demonstrated that the appellant drove through the stop sign without stopping. This evidence also had to be considered as part of the entire evidentiary record and it confirmed the officer’s evidence. Indeed, even if the Justice of the Peace was unconvinced based upon the officer’s evidence, his acceptance of the video would have led to the same result. It was conclusive and uncontroverted proof of the offence. This was an overwhelming case for the prosecution.

[23] The argument that there “may” have been selective enforcement was not articulated in any substance at trial and was not pursued in submissions on appeal. The officer did not charge another driver who can be seen on the video going by the stop sign with the same offence. The officer could not remember why she did not charge the other driver. Suffice to say this evidence is inconclusive on the issue of selective enforcement and is equally, if not more consistent, with an exercise of discretion that an officer undoubtedly has when enforcing the HTA.

Conclusion:

[24] The appeal is dismissed. I would like to thank Mr. Mahadeo and Mr. Gabriel for their submissions.

Released: June 5, 2025
Signed: Justice C. Harper