R. v. Colquhoun, 2019 ONCJ 475

CITATION: R. v. Colquhoun , 2019 ONCJ 475 COURT FILE No.: 0661-999-2144362Z DATE: July 3, 2019 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: THE QUEEN — AND — EILEEN COLQUHOUN Before Mr. Justice Richard H.K. Schwarzl at Orangeville Heard on March 1 and June 7, 2019 Reasons released on July 3, 2019 Ms. Nicole Klein.............................................................................. for the Respondent Crown Mr. Ian Colquhoun............................................................................................ for the Appellate SCHWARZL, J.: REASONS ON P.O.A.

APPEAL 1.0: INTRODUCTION [ 1 .] On August 30, 2017 the appellate, Eileen Colquhoun, was charged with failing to stop at a stop sign at Silver Valley Drive, Bolton within the Town of Caledon, contrary to

section 136 of the Highway Traffic Act . A trial was held before Justice of the Peace K. Murphy on May 1, 2018. One prosecution witness and two defence witnesses gave evidence. On June 29, 2018 the learned Justice of the Peace gave reasons for judgment and found the appellate guilty. A sentence was imposed of $150 plus costs of $30. [ 2 .] The appellate raised two grounds of appeal. Firstly, she submits that the learned Justice of the Peace erred in her assessment of the credibility of the witnesses called at trial.

Secondly, she submits that the prosecution failed to prove the legality of the stop sign. [ 3 .] For reasons I will set out below, the Appeal is dismissed. 2.0: The First Ground of Appeal – Assessment of the Evidence [ 4 .] The appellate submits that the learned Justice of the Peace made numerous errors in assessing the evidence. With respect to the sole prosecution witness, P.C. Bernard, the appellate submits that his evidence that he parks in the same spot daily was either untruthful or otherwise incredible.

As for the evidence of the two defence witnesses, Phoebe Colquhoun and Eileen Colquhoun, the appellate submits that the learned Justice of the Peace was unfair and unreasonable in assessing their evidence. [ 5 .] Upon reading the reasons of judgment, I find that the learned Justice of the Peace made no errors in assessing the evidence for several reasons. First, the learned Justice of the Peace did not misapprehend the evidence. Second, taking the evidence as a whole, she was entitled to find that the evidence of the two defence witnesses did not raise a reasonable doubt.

It was open to the learned Justice to find that Phoebe Colquhoun’s evidence of stopping for between 5 and 10 seconds was not credible. It was open for the learned Justice of the Peace to find her evidence was significantly different from the appellate’s evidence, which is that she came to a stop, inched forward, then proceeded. It was reasonable to find that the appellate’s evidence suggested that her stop was very brief, and not extended as stated by Phoebe Colquhoun.

It was reasonable for the learned Justice of the Peace to conclude that this was a significant inconsistency that, when stacked up against the police officer’s evidence, rendered unreliable their evidence that the car had in fact stopped at the sign.

[6.] The learned Justice of the Peace was not in error by finding that the police witness was a consistent, reliable, and believablewitness. The officer’s evidence of parking in the same spot daily was not patently unreasonable. [7.] Taking the evidence as a whole, it was open to the learned Justice of the Peace to find the testimony of the two defencewitnesses was not reliable.

It was also open to her to find that the evidence of the officer, who was present to watch for violators givencomplaints about people failing to stop at that intersection, and who was in a position to make clear and unobstructed observations wasof such a quality as to prove beyond a reasonable doubt that the appellate ran the stop sign. [8.] The first ground of appeal is therefore dismissed. 3.0: SECOND GROUND OF APPEAL – LAWFULLNESS OF THE STOP SIGN [9.] The appellate submits that the learned Justice of the Peace erred by finding that the prosecution had proven the lawfulness ofthe stop sign as required by

section 137 of the Highway Traffic Act. During the trial, the appellate twice argued that the prosecutionfailed to prove the legality of the stop sign, first at a motion for directed verdict which was dismissed, and then later during finalsubmissions. 3.1: Motion for Directed Verdict [10.] At the conclusion of the prosecution evidence the appellate sought a directed verdict of acquittal because the prosecution had notadduced the municipal bylaw purporting to authorize the subject stop sign. In her submissions, the appellate relied on Grand CentralOttawa Ltd. v. Ottawa (City), (ON SC), 39 O.R. (3d) 47, [1998] O.J.

No. 149, 1998 (Ont. Prov.Ct.). That case reiterates a long-held principle that courts may not take judicial notice of municipal bylaws: Canada Atlantic Rwy. Co.v. Ottawa (City), 1886 CanLII 6 (SCC); Onyskiw v. CJM Property Management, 2016 ONCA 477 (Ont. C.A.); and Greater Sudbury(City) v. Thibert, 2019 ONCJ 318 (O.C.J.). When first presented with this argument, the learned Justice of the Peace initially reacted bystating that proof of the bylaw was not required since the offence facing the appellate was under the Highway Traffic Act and not amunicipal bylaw.

In dismissing the motion for directed verdict the learned Justice of the Peace stated a page 23 of the trial transcript that“there is no reason for the prosecution to bring me a bylaw with regard to the stop sign. The officer testified to the fact there was onethere.” [11.] In my view the learned Justice of the Peace was in error by dismissing the motion for directed verdict for the reasons sheprovided. While she was correct in stating that the prosecution was for a provincial offence, not a municipal one, by dismissing themotion for this reason she overlooked the obligation created by

section 137 of the Highway Traffic Act for there to be proof the sign wasthe product of a law such as a municipal bylaw. However, the learned Justice of the Peace did reconsider the issue after hearing finalsubmissions. 3.2: Reasons for Judgment [12.] After the appellate raised the issue again in her final submissions, the learned Justice of the Peace addressed the issue of legalityof the stop sign in her reasons for judgment. At page 7 of her reasons, the learned Justice of the Peace stated, I read into the record the case law that gives me thejurisdiction to find that there was a stop sign at that location.

It’s R. v. Lavelle[1], and I went and got the exact wording: So a prima facie case is established by evidence that a stop sign has been erected in a particular locationand then in the absence of evidence to the contrary it will be presumed that the officials of the municipality acting under instructions will have so erected the sign, size, colour, and location in compliance withthose regulations. [13.] In R. v.

Lavelle, supra, Landreville, J stated more fully as follows: …[W]hen 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 areasonable inference and there must be a presumption that the officials of the Municipality, acting under instructions, have so erected asign 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. When a constable gives in evidence that a 'Stop Sign' was erected on location, theCrown has established a prima facie case. It may be met by the defence that in fact the sign did not comply with the Regulations. [14.] Lavelle appears to stand for the principle that where it is first proved that there is a lawful authority for the sign’s erection, it isreasonable to presume that those who put it up did so in accordance with the law that created it, absent evidence to the contrary.

Withrespect to the learned Justice of the Peace, she erred in relying on Lavelle to find that the officer’s evidence that there was a stop sign atthe intersection is evidence that it was there pursuant to a law or regulation. Lavelle only asserts that once there is proof of a lawauthorizing the erection, the officer’s evidence about the sign is prima facie evidence that it was erected – but not enacted - properly.

Notwithstanding the learned Justice of the Peace’s reliance on Lavelle, the prosecution in the case at bar was still required to prove thelegality of the stop sign. 3.3: Analysis [15.] The errors made by the learned Justice of the Peace during the trial do not end the matter, however. Had the learned Justice ofthe Peace been directed to binding appellate authorities, she would have properly reached the same conclusion that the sign was legallyauthorized. [16.] The legality of the stop sign can be proven directly if the prosecutor adduces a certified copy of the bylaw authorizing the stopsign.

Here, there was no direct evidence proving the bylaw authorizing the sign and the appellate is correct that the learned Justice ofthe Peace could not take judicial notice of such a bylaw. [17.] Notwithstanding the lack of direct evidence, the legality of the sign can also be proven circumstantially: R. v. Bryce, [2009] O.J.No. 3640 (S.C.J.) where Hill, J held that proof of the existence of a particular bylaw and its terms may be circumstantially inferred,without production of a certified copy of the relevant bylaw as per R. v. Clark (1974), (ON CA), 3 O.R. (2d) 716 (C.A.)at 720; R. v.

McLaren (1981), 10 M.V.R. 42 (Ont. C.A.) at 44. [18.] Furthermore, in R. v. Ross (1966), (ON CA), 2 O.R. 273, [1966] 4 CCC 175 it was held by the Ontario Courtof Appeal that on a charge of disobeying a stop sign, … [S]ection 64 [now

section 136] was drafted in such a way as to avoid the necessity of proving the bylaw or regulation providing forthe erection of the stop sign. All that must be proved to constitute an offence under the

section is that there was a stop sign and if thecharge is under clause (a), that the accused failed to stop at the stop sign; or if it is under clause (

b) that the accused failed to yield theright-of-way. [19.] On the evidentiary record of this case, there was circumstantial evidence of a law authorizing the sign’s erection. P.C. Bernardgave detailed testimony about its description and its position within the Town of Caledon. No evidence to the contrary was led that thesign did not otherwise conform with the regulations regarding stops signs.

The presence of what appeared to be a regulation stop sign atan intersection of roads within the boundaries of the Town of Caledon was circumstantial evidence that the Municipality had authorizedits erection pursuant to a bylaw.

In other words, the placement and the characteristics of the sign as described by the officer were of thekinds commonly associated with lawfully erected signs and thus circumstantial evidence that the Town of Caledon had sanctioned thesign by means of a bylaw. [20.] In the absence of direct evidence of a bylaw, and without taking judicial notice of such a bylaw, it was thus open to the learnedJustice of the Peace to find that the stop sign in this case was legal. Applying the principles in R. v.

Ross, supra, and the circumstantialevidence presented, the second ground of appeal is dismissed. 4.0: OBITER DICTA [21.] As a matter of obiter dicta, I feel it appropriate to raise an issue that has no bearing on the appeal per se. [22.] During the argument of the non-suit motion, the prosecutor invited the learned Justice of the Peace to refer to a binder on thedais filled with certified copies of local bylaws. In my view, possession by the court of such materials does not represent proper proof ofan official document.

A certified bylaw must be adduced in the normal course of presenting evidence at any given trial wherein adefendant is then able to contest the admissibility of the document.

[ 23 .] The practice of lodging such documents with the court in advance of a trial without the knowledge or participation of one of the parties is problematic for at least two reasons. First, it is unfair for one party have “pre-proven” something that must be proven in open court on a case-by-case basis. Second, the actions of the court in receiving then keeping such materials may create a reasonable apprehension that the court has, in effect, partnered with the prosecution.

The retention of certified bylaws by the court and its reliance upon them as proof is to be strongly discouraged to ensure open, fair, and unbiased proceedings. 5.0: CONCLUSIONS [ 24 .] For the reasons set out herein, the learned Justice of the Peace made no legal errors in assessing the evidence and although the paths she took to finding the sign was legal were in error, her conclusion was correct when applying the relevant legal principles. [ 25 .] The appeal is therefore dismissed. Richard H.K. Schwarzl, Justice of the Ontario Court of Justice