R. v. Marrocco, 2012 ONCJ 535

Citation: R. v. Marrocco , 2012 ONCJ 535 R. v. Marrocco Between Regina and Paolo Marrocco Ontario Court of Justice Toronto, Ontario P. Kowarsky J.P. Heard: May 17, 2012 Judgment: August 28, 2012 For the Prosecution: Ms. I. Mamane For the Defendant: Mr. B. Bennardo REASONS FOR JUDGMENT P. KOWARSKY J.P. A. THE CHARGES 1 . The defendant is charged with the following four offences: 1) Red Light – Fail to Stop: Highway Traffic Act, section 144(18) 2) Fail to Comply with Direction of Officer: Highway Traffic Act,

section 216.1(7) 3) Drive – Hand Held Communication Device: Highway Traffic Act,

section 78.1(1) 4) Fail to surrender Insurance Card: Compulsory Automobile Insurance Act, section 3(1) B. THE EVIDENCE FOR THE PROSECUTION 2 . The evidence of Officer Susan Fisher may be summarised as follows: On October 27 th 2010 she was a Toronto Police Officer on duty in the Traffic Division Unit of 23 Division. She was in uniform, driving a marked police scout car, travelling southbound on Kipling Avenue in Toronto. At about 7:36 am she stopped about 3 car lengths from a solid red traffic light, facing southbound traffic at the intersection of Kipling Avenue and Albion Road.

While so stopped, she had a clear and unobstructed view of the entire intersection and the traffic lights controlling that intersection. The southbound traffic signals changed to a solid green, and a green advanced arrow for the southbound traffic on Kipling Avenue to turn to go eastbound on Albion Road. The light was red for the northbound traffic on Kipling Avenue at that time.

Before the southbound traffic, intending to advance to turn eastbound on Albion Road, began to move into the intersection, she saw a dark coloured pick- up truck travelling westbound on Albion Road at what appeared to be a high rate of speed, “come through the intersection on the solid red causing traffic southbound that was going on to turn left and to go through, to stop before they went through to the intersection.” “It was the only westbound vehicle at that time so I was not able to easily confuse it with anything else at the time.” The light had been red for the defendant for three or four seconds prior to his entering the intersection.

She continued to have a clear view of the intersection, other than for “a second and a half” when the pick-up vehicle passed a gas station while continuing at a high rate of speed westbound on Albion Road. She followed the vehicle, and activated her vehicle’s roof lights as she came up behind it. She noted the Ontario Commercial Vehicle’s Ontario Licence Plate number as 843 5VH. In addition to her flashing roof lights, she used her air horn to “get the driver’s attention.

However, I was unable to get the driver to acknowledge my attempts to pull him over at that time.” She had a clear view into the vehicle from the rear window, and she saw that the driver had “what appeared to be...a box-like dark object in his left hand up to his right ear.” She continued to follow the driver for about 2 kilometres along Albion Road as he was heading towards Martin Grove Road, “and

I could still not get his attention.”He turned left onto Martin Grove Road travelling southbound.Using her air horn again she finally was able to gain the driver’s attention, drove up to the driver’s side of the vehicle, and pulledhim over on the West side of Martin Grove Road.As she came close to the vehicle “I could see as he took the object from his right ear with his left hand; it was a cell phone, and[he] brought it down.” It was at that time that she was able to verify “that it was indeed a communicative device, a cell phone.”After making a demand for the driver’s licence, ownership and proof of insurance, he provided her with a valid Ontario Driver’slicence in the name of Paolo Marrocco, and she was satisfied with his identification.

He also provided the officer with hisownership permit, which indicated that he was the owner of the vehicle.With respect to proof of insurance Mr. Marrocco provided the officer with a faxed copy of an insurance card from Economical Mutual, with a fax date of May 28th 2010, and effective from May 29th 2010. Since the offence date of October 27th 2010, some five months after the defendant appears to have received a faxed copy of thefront portion of the insurance card, he has never provided the actual pink insurance card to the officer. C. THE EVIDENCE FOR THE DEFENCE 3.

The evidence of the defendant may be summarised as follows: Mr.

Marrocco acknowledged driving his motor vehicle, which he described as a truck, at the location concerned on the day andtime in question.He is 46 years old, and has been driving since he was 16 years old.However, in regard to the red light infraction, he is “99.9% sure when I went through it, it was amber.”After going through the traffic light at the intersection of Kipling Avenue and Albion Road, he drove westbound on Albion Roadtowards Martin Grove Road.He did not see anything coming from a police vehicle behind that would indicate that a police officer wanted him to pull over andstop.It was only when he reached and stopped at the red light at the intersection of Albion Road and Martin Grove that he first saw theofficer’s vehicle behind him.Then he “waited for the light to turn green, waited for a few cars to clear and I pulled right over.He did have a cell phone in his possession at the time but he also has ‘Bluetooth’ in his truck, “and I don’t use my cell phone whileI’m driving because it rings through my radio.”His rear window is tinted and hard to see through, so the officer could not have seen him holding a cell phone.In fact at the time, he was holding a cup of Tim Horton’s coffee in his right hand.The distance on Albion Road from Kipling Avenue to Martin Grove Road could possibly be two kilometres, which was thetestimony of the officer.He did not have a valid pink insurance slip to surrender to the officer.

He only had a faxed copy of it, which he received some fivemonths prior thereto.This was because “one of the guys who worked for the broker” told him that he should not keep an original pink slip in his vehicleeven though the insurance company had given him “three or four copies,” in case “someone steals the truck or something.”“A couple of years ago” he had heard that it would be a good idea to keep the original insurance slip in his vehicle “in casesomething happens, you know, you have the originals.”He had never gone to the officer after the incident to show the officer the original pink slip because “I was never asked to or Iwould have definitely done it.”He did not have that original insurance slip with him in court because he had thrown it out.

D. CATEGORIZATION OF THE OFFENCES 4. In R. v. Sault Ste.

Marie (City), (SCC), [1978] 2 S.C.R. 1299, Dickson J. speaking for the Supreme Court of Canada,held that compelling grounds existed for the recognition of the following three categories of offences: 1.) "Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge or recklessness, must beproved by the prosecution either as an inference from the nature of the act committed, or by additional evidence; 2.) Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited actprima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care.

This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved 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 theparticular event. These offences may properly be called offences of strict liability. 3.) Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault." 5.

I am satisfied that none of the offences in the case at bar is a mens rea offence since there is no requirement that the prosecutionprove “some positive state of mind” in relation to the commission of any of the four offences with which the defendant is charged.

6. In R. v. Kurtzman (1991) (ON CA), 31 M.V.R. (2d) 1 the Ontario Court of Appeal held that the words used insection 144(18) of the Highway Traffic Act are mandatory and clearly do not anticipate a defence of due diligence or reasonable care.Consequently, I am satisfied that the failure to stop at the red light is an absolute liability offence. 7. As well, I am satisfied that the charge of failing to surrender insurance card is also an absolute liability offence. 8.

On the other hand, because of the presumption in favour of regulatory offences being treated as strict liability offences, coupled withthe wording of the other two charges, I will treat the charges of failing to comply with the direction of the officer and driving whileholding a hand-held communication device as strict liability offences.

The consequence of my decision to treat these two offence as strictliability offences, is that the onus is on the Prosecution to prove the actus reus of these offences beyond a reasonable doubt, while it isopen to the defendant to exculpate himself by satisfying the court, on a balance of probabilities, either that he had an honest but mistakenbelief in facts which, if true, would render the acts innocent, or that he exercised all reasonable care so as to avoid committing theoffences. See: R. v. Sault Ste. Marie (supra); R. v. Pontes, (SCC), [1995] 3 S.C.R. 44. E. ANALYSIS AND FINDINGS 9.

In my view there are no issues with respect to the location, time, the defendant’s vehicle or the identity of the defendant. 10. Red Light – Fail to Stop Section 144(18) of the Highway Traffic Act provides as follows: “Every driver approaching a traffic control signal showing a circular redindication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown.” 11. The evidence of the officer and that of the defendant are in direct contradiction of one another. The officer’s testimony wasstraightforward and plausible.

She was on general patrol, stopped at a red light about three car lengths from the traffic light, facingsouthbound traffic. She had a clear and unobstructed view of the traffic lights and the intersection. After the light turned green for her,she saw the defendant’s pick-up truck travelling westbound at a high rate of speed. The defendant drove his vehicle through theintersection on the solid red light causing southbound traffic to stop prior to making the left turn at the intersection.

The defendant’svehicle was the only westbound vehicle at the time, and the light had been red for three or four seconds prior to the defendant’s enteringthe intersection. 12. As opposed to the officer’s evidence, the defendant testified that he is 99.9% sure that when he went through the intersection, thelight for him was amber. 13. The evidence of the officer is compelling. The evidence of the defendant is simply a denial, and is not compelling. I do not believethe evidence of the defendant nor am I left with a reasonable doubt with respect to his guilt on this charge.

Accordingly, I am satisfiedthat the Prosecution has proven this charge beyond a reasonable doubt, and a conviction will be registered. 14. Fail to comply with direction of Officer

Section 216.1 (6) (

a) provides as follows: “Where an officer appointed for carrying out the provisions of this Act is of the opinion, on reasonable and probable grounds, that acommercial vehicle is being operated in contravention of this Act, the Compulsory Automobile Insurance Act or the Dangerous GoodsTransportation Act, or the regulations under any of them, the officer may, (

a) direct the driver of the vehicle to drive the vehicle to such location as is reasonable in the circumstances and detain it at thatlocation.” Subsection (7): “Every driver who is directed under clause (6) (

a) shall comply with the direction.”

Subsection (8) “Every person who contravenes subsection (1), (2), (3) or (7) is guilty of an offence and upon conviction is liable to a fine of not less than $250 and not more than $20,000.” Subsection (9): “For the purposes of this section, ‘commercial vehicle’ means a commercial motor vehicle and a motor vehicle towing a trailer.” 15 . Is the defendant’s vehicle a commercial vehicle?

Section 1 of the Highway Traffic Act defines a “commercial motor vehicle” as “a motor vehicle having permanently attached thereto a truck or delivery body....” The officer described the vehicle as a pick-up truck. The defendant was initially evasive when he testified that he never paid more for a commercial plate. However, under cross examination he testified that he uses “that truck” for his work as an electrician. 16 .

I find that the defendant’s vehicle is indeed a commercial vehicle, and that, having regard to the testimony of the officer, she had reasonable and probable grounds to form the opinion that the vehicle was being used in contravention of section 144(18) of The Highway Traffic Act. Such a finding entitles the officer to “direct the driver of the vehicle to drive the vehicle to such location as is reasonable in the circumstances and detain it at that location.” 17 . There is conflicting evidence as to whether the defendant complied with

section 216.1(7). Without repeating my

summary of the officer’s evidence in this regard, suffice it to say that she testified that – after the defendant went through the red light, she activated her roof lights and began to follow him in an effort to gain his attention and have him pull over to the side of Albion Road. Being unsuccessful at doing so the officer used her air horn in order to get his attention, but still he did not acknowledge her attempts to pull him over. After thus following him for about two kilometers, he stopped at the red light at the intersection of Albion Road and Martin Grove Road.

It was only when the defendant turned left to travel southbound on Martin Grove Road that she was able to gain his attention, and she pulled him over on the West side of Martin Grove Road. 18 . I encapsulate hereunder the evidence of the defendant in relation to this charge. • He “100% remembers every incident that happened.” He’s made notes over the last year or two. • I did not have music on so I could clearly hear what was going on, and I came to a stop light and looked in my mirror and I seen a red police light.

So I’m at the centre of the stop light in traffic.” There’s no way he could pull over at that point “so I figure I’ll go through the light, wait until the cars flow by me, and pull over safely.” • “She at no point was beside me and let off a horn.” • “She perceived that I wasn’t trying to pull over but she knew I was in the middle of a red light.” • There were vehicles in the way so that he couldn’t pull over. • “I think that’s very important that there were other vehicles beside me. That affected me pulling over, and then, I was at a red light.” • When he was at the red light he saw the officer behind him.

He waited for the light to turn green, “waited for a few cars to clear, and I pulled right over.” • Under cross examination, when asked how far the Albion Road and Kipling Avenue intersection is from the Albion Road and Martin Grove Road intersection, he replied: “A block or two.” • The prosecutor asked: “If I put it to you that it was about two kilometres from each other, would you agree with that statement?” The defendant’s response: “Okay, that’s possible.” 19 . I do not find the evidence of the defendant convincing in relation to this charge. I do not believe that he was being forthright.

He appeared to be equivocal, circuitous and meandering. It strains common sense to accept that he stopped at the red light at the first intersection, saw the officer behind him, waited for the light to turn green and for cars to pass, and then he pulled over. This may have occurred at the second intersection where he stopped for the red light at Martin Grove, and turned left after the light changed to green, after which the officer was able to get him to pull over. 20 .

The evidence of the officer accords with reality and common sense; namely that she followed him after he had gone through the red light, tried with flashing lights and a horn to get his attention for some two kilometres, after which he finally pulled over. 21 . I do not believe the evidence of the defendant nor am I left with any reasonable doubt with respect to his guilt in relation to this charge.

I find therefore, that the Prosecution has proven the actus reus of this charge, and the defendant has not satisfied me, on a balance of probabilities, of his due diligence or any reasonable mistake of fact on his part. 22 . Accordingly, I find the defendant guilty, and enter a conviction for this offence. 23 . Drive hand-held Communication Device

Section 78.1 (1) of the Highway Traffic Act provides as follows: “ No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. 24 . In brief, I am not satisfied that the Prosecution has proven the essential elements of this offence beyond a reasonable doubt. The

officer’s testimony is that as she was approaching the defendant’s vehicle, she saw through the rear window that he appeared to have a black “box-like object” in his right hand, holding it to his left ear. When she drove beside him, she saw him move the object from his right ear with his left hand. It was then that she could see that he had been holding the object, which she recognized as a cell phone. In chief, the officer testified that the defendant was holding the object with his right hand at his left ear.

Under cross examination, she testified that she later saw him put it down with his left hand from his right ear. 25 . It strains common sense that a person would be holding a cell phone with his right hand at his left ear or in his left hand to his right ear. Moreover, the contradiction in the evidence of the officer under cross examination leaves me with a reasonable doubt, which always favours the defendant. Accordingly, I find the defendant not guilty of this offence. 26 .

Fail to surrender Insurance Card Section 3(1) of the Compulsory Automobile Insurance Act provides as follows: “An operator of a motor vehicle on a highway shall have in the motor vehicle at all times, (

a) an insurance card for the motor vehicle; or (

b) an insurance card evidencing that the operator is insured under a contract of automobile insurance, and the operator shall surrender the insurance card for reasonable inspection upon the demand of a police officer. 27 . It is common ground that when the officer made a demand for the defendant’s insurance card, he provided her with a faxed copy of the card, indicating in his evidence that when he insured the vehicle someone from his insurance brokerage advised him not to keep an original insurance card in his vehicle, but rather a copy. 28 .

Section 1 of the Compulsory Automobile Insurance Act states that an “insurance card” means, (

a) a Motor Vehicle Liability Insurance Card in the form approved by the Superintendent, (

b) a policy of automobile insurance or a certificate of a policy in the form approved by the Superintendent, or (

c) a document in a form approved by the Superintendent; And “Superintendent” means the Superintendent of Financial Services appointed under the Financial Services Commission of Ontario Act, 1997 . 29 . As such, I find that the defendant did not provide the officer with a valid insurance card as defined. There will be a finding of guilt, and a conviction will be registered. 30 . I ask for submissions on penalty please. P. Kowarsky Justice of the Peace August 28, 2012