R. v. Walker, 2012 ONCJ 485

Information No. 00-3537153A Citation: R. v. Walker , 2012 ONCJ 485 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN -and- SHELBY WALKER ********** RESERVED REASONS FOR JUDGMENT HORNBLOWER, J. : This is an appeal by Shelby Walker from a conviction for an offence under Section 136 (1)(

b) of the Highway Traffic Act, failing to yield to traffic on a through highway. FACTS From a review of the Reasons for Judgment of Justice of the Peace Rogers, the facts as found by her may be summarized as follows. Ms. Walker was travelling westbound on Egremont Road approaching the intersection with Lakeshore Road. A stop sign controls traffic on Egremont crossing Lakeshore Road. Ms. Walker stopped at the intersection and checked for traffic in both directions. Due to the height of the snow banks on the road, relative to the height of her car, she was not able to properly see approaching

traffic. She pulled ahead further again stopping and again checking for traffic in both directions. She did not see the Emery vehicle which was travelling northbound on Lakeshore, entered the intersection and struck that vehicle. At trial she argued that she had taken all reasonable steps to ensure that she could enter the intersection. The Justice of the Peace ruled that the offence was an absolute liability offence for which the due diligence defence did not apply. ISSUE The sole issue in this appeal is whether Section 236 (1)(

b) creates an offence of absolute liability or one of strict liability. ANALYSIS The framework for analysing public welfare statutes such as the Highway Traffic Act was established by the Supreme Court of Canada in R. v. Sault Ste. Marie (1978), (SCC), 40 CCC, 2nd 353 (S.C.C.). That framework was applied by the Ontario Court of Appeal in R. v. Kanda

(2008) ONCA 22, where the issue was whether Section 106 (6) of the Highway Traffic Act was an offence of strict or absolute liability. In determining whether an offence is one of strict or absolute liability a court needs to consider the following four factors: 1. The overall regulatory pattern; 2. The subject matter of the legislation; 3. The importance of the penalty; and 4. The precision of the language. In carrying out that analysis a court must bear in mind that Sault St. Marie established a presumption that public welfare offences are strict liability offences to which the defence of due diligence applies. REGULATORY PATTERN

Part X of the Highway Traffic Act establishes the rules of the road. Included under that heading are offences which have been determined to be absolute liability offences as well as those determined to be strict liability offences. In R. v. Kurtzman , the offence of failing to stop for a red light was held to be an absolute liability offence. But the Court in Kurtzman went on to hold that the exception for emergency vehicles found in what is now Section 144 (20), is an offence of strict liability.

The driver of an emergency vehicle who proceeds through a red light without stopping will be convicted for the offence of failing to stop for a red light regardless of the degree of care the driver took in proceeding through the red light. By virtue of Section 140 (20) however, that same driver who stops for a red light may proceed through the red light if it is safe to do so and will incur no liability provided the proper standard of care has been exercised. From this analysis the regulatory pattern is neutral in assessing whether Section 136 (1)(

b) is a strict or absolute liability offence. SUBJECT MATTER

Part X of the Highway Traffic Act sets out the rules by which safety on the highway and the orderly flow of traffic is maintained. That purpose may suggest a tendency towards classifying offences under this part as absolute liability. PENALTY The general penalty provision applies to this offence setting a maximum penalty of $500.00. A modest penalty of that amount is consistent with an absolute liability offence. PRECISSION OF THE LANGUAGE Sault St. Marie establishes a presumption in favour of classifying regulatory offences as strict liability offences.

The use of the word “shall” in and of itself does not automatically lead to a classification as an absolute liability offence ( R. v. Kanda ).

The language used in the

section does not make it clear that the legislature intended to make this an offence of absolute liability. Rather, the language does tend towards the existence of a due diligence defence akin to the defence available to the driver of an emergency vehicle proceeding through a red light. Under Section 140 (20), a driver of an emergency vehicle after stopping for a red light may proceed through the red light “if it is safe to do so.” That statutory exemption from liability requires an assessment by the driver of the vehicle of the hazards before proceeding. It is a subjective assessment but is evaluated against the standard of the reasonable person. In a similar fashion,

Section 136 creates two duties on a driver. The first under Section 136 (1)(

a) requires a driver to stop at a marked stop line. The determination of the necessity to stop is not subjective. Rather, it is an absolute. Thereafter, a driver shall yield to approaching traffic if that traffic is approaching “so closely that to proceed would constitute an immediate hazard.” The determination of what constitutes an immediate hazard is a subjective one. It is that subjective determination that gives rise to a due diligence defence.

A driver who makes that subjective determination will be convicted unless the driver establishes that before proceeding he or she took all reasonable steps to assess the immediacy of the hazard. The language therefore permits the raising of a defence of reasonable care. CONCLUSION Considering the factors set out in Sault St. Marie and particularly the language in the statute, the offence is one of strict liability to which a due diligence defence applies. The determination that the offence was one of absolute liability was an error which necessitates a new trial.

Accordingly, the appeal is allowed and the matter sent back for a new trial. ____________________________ Mr. Justice G. M. Hornblower Dated: July 12, 2012