R. v. Ayub-Bawar, 2017 ONCJ 250

ONTARIO COURT OF JUSTICE CITATION: R. v. Ayub-Bawar, 2017 ONCJ 250 DATE: 2017 04 19 COURT FILE No.: Cornwall, Ontario 3960-999-00-3661906B-00 IN THE MATTER OF an appeal under clause 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — MOHAMMED AYUB-BAWAR Appellant Before Justice D.A.

Kinsella Heard on March 21, 2017 Reasons for Judgment released on April 19, 2017 Jason Pilon.......................................................................................... counsel for the Crown David Anber……………………..counsel for the defendant Mohammed Ayub-Bawar On appeal from a conviction by Justice of the Peace Marchand on May 25, 2016.

KINSELLA J.: Overview “‘Would you tell me, please, which way I ought to go from here?’ ‘That depends a good deal on where you want to get to,’ said the Cat. ‘I don't much care where –’ said Alice. ‘Then it doesn't matter which way you go,’ said the Cat.” ― Lewis Carroll , Alice in Wonderland [ 1 ] Statutory

interpretation is much like this passage from Alice in Wonderland ; how a piece of legislation is interpreted by the litigants will often depend on what the expected or hoped-for outcome is. [ 2 ]

Section 136 of the Provincial Offences Act (“ POA ”) deals with the authority of the appeal court and the scope of that authority when hearing an appeal. Under this section, the appeal is done by way of a review. The case law further sets out the broad scope of the jurisdiction of the appeal court when dealing with appeals under Parts I and II of the POA and differentiates the manner of dealing with those appeals from appeals under

Part III. Given, however, that the sole issue in this case is one of statutory

interpretation it is

unnecessary for me to conduct a review to determine the sufficiency of the evidence or findings made.

Summary [ 3 ] The facts found by Justice of the Peace Marchand are relatively straight-forward and not in dispute. On March 1, 2015 Cst. Gadbois of the Ontario Provincial Police was operating an unmarked Chevy Tahoe with police lights located on the inside of the vehicle. At approximately 1:35 pm, Cst. Gadbois was just finishing a vehicle stop, meaning he had pulled over a vehicle on the side of Highway 401 westbound in South Glengarry Township. This stretch of the highway is straight and level providing drivers with a clear view for over two kilometres ahead.

On this day the roads were dry and clear. [ 4 ] The vehicle that Cst. Gadbois had just conducted the traffic stop on was still on the shoulder with its signal light on. Cst. Gadbois’ vehicle was immediately behind this car, and he had his vehicle’s blue and red lights activated, causing them to flash in alternate patterns. The officer also had his hazard lights on. As the vehicle he had stopped put on its signal light in order to resume travel on the highway, Cst. Gadbois noted two vehicles approaching his location travelling in a westbound direction.

One vehicle was in what the officer described as “lane two” or the lane closest to the shoulder. This blue vehicle, later identified as a Ford Focus being driven by the appellant, was travelling at about 118 km/hour. The only other vehicle visible was a vehicle in the opposite or passing lane about 30 metres behind the blue Ford Focus. The officer testified that he observed these vehicles by checking his mirror before he had put his own vehicle in motion. [ 5 ] Cst. Gadbois testified that he and the vehicle he had stopped both started to slowly roll forward in order to resume travel on the highway.

The blue Ford Focus did not change lanes into the passing late despite it being safe to do so. Cst. Gadbois could not say exactly how far away the blue Ford Focus was when he first saw it, but he noted that it did not take long for the vehicle to overtake his location. He did not believe that the blue Ford Focus reduced its speed as it was approaching or passing his location. [ 6 ] Once the Ford Focus had overtaken him and he was able to resume travel on the highway, Cst. Gadbois stopped the Ford Focus a short distance away near the Summerstown Road area. Ultimately, Cst. Gadbois charged Mr.

Ayub-Bawar with failing to move into another lane for emergency vehicle if safe to do so contrary to section 159(3) of the Highway Traffic Act (“HTA”) . Legislation [ 7 ]

Section 159 of the HTA states:

(1) The driver of a vehicle, upon the approach of a police department vehicle with its bell or siren sounding or with its lamp producing intermittent flashes of red light or red and blue light, or upon the approach of an ambulance, fire department vehicle or public utility emergency vehicle with its bell or siren sounding or its lamp producing intermittent flashes of red light, shall immediately bring such vehicle to a standstill, (

a) as near as is practicable to the right-hand curb or edge of the roadway and parallel therewith and clear of any intersection; or (

b) when on a roadway having more than two lanes for traffic and designated for the use of one-way traffic, as near as is practicable to the nearest curb or edge of the roadway and parallel therewith and clear of any intersection. 2009, c. 5, s. 49 .

(2) Upon approaching an emergency vehicle with its lamp producing intermittent flashes of red light or red and blue light or a tow truck with its lamp producing intermittent flashes of amber light that is stopped on a highway, the driver of a vehicle travelling on the same side of the highway shall slow down and proceed with caution, having due regard for traffic on and the conditions of the highway and the weather, to ensure that the driver does not collide with the emergency vehicle or tow truck or endanger any person outside of the emergency vehicle or tow truck. 2015, c. 14, s. 47 .

(3) Upon approaching an emergency vehicle with its lamp producing intermittent flashes of red light or red and blue light or a tow truck with its lamp producing intermittent flashes of amber light that is stopped on a highway with two or more lanes of traffic on the same side of the highway as the side on which the emergency vehicle or tow truck is stopped, the driver of a vehicle travelling in the same lane that the emergency vehicle or tow truck is stopped in or in a lane that is adjacent to the emergency vehicle or tow truck, in addition to slowing down and proceeding with caution as required by subsection (2), shall move into another lane if the movement can be made safely. 2015, c. 14, s. 47 .

(4) No driver of a vehicle shall follow in any lane of a roadway at a distance of less than 150 metres a fire department vehicle responding to an alarm. 2009, c. 5, s. 49 .

(5) Nothing in subsection (2) or (3) prevents a driver from stopping his or her vehicle and not passing the stopped emergency vehicle or tow truck if stopping can be done safely and is not otherwise prohibited by law. 2015, c. 14, s. 47 . Position of the Appellant [ 8 ] At trial counsel for Mr. Ayub-Bawar, Mr. Anber, argued that the actus reus of an offence under section 159(3) was not committed until the vehicle being driven by the defendant passes an emergency vehicle which is stopped. Since the emergency vehicle being driven by Cst. Gadbois had started to roll forward at the time Mr. Ayub-Bawar passed it, Mr.

Anber submitted that the defendant should not be found guilty. [ 9 ] In his ruling, Justice of the Peace Marchand found that the obligation on the part of the defendant to move into another lane if such a movement can be done safely was triggered not at the moment of passing but rather “upon approaching an emergency vehicle.”

His Worship found that, since there was no contradictory evidence that at some stage the appellant was operating a motor vehicle which was approaching a stopped emergency vehicle with its lights activated, there was sufficient evidence upon which to find Mr. Ayub- Bawar guilty. [ 10 ] The appellant argues that the learned justice of the peace erred in his

interpretation of the legislation. First the appellant submits that, in interpreting the

section in the manner that he did, Justice of the Peace Marchand essentially read in the word “immediately”. This, according to the appellant, would result in arbitrary and discretionary application of the law. He submits that a person could factually comply with the law by switching lanes, but still be charged by an officer who felt that the lane change should have occurred sooner. [ 11 ] The appellant also submits that the learned justice of the peace erred in substituting his intent for the legislators’. The appellant argues that the legislative intent is already addressed within the section, albeit later on.

He points to subsection (5) which allows for an alternate manner of avoiding liability, namely that a driver may rather than pass an emergency vehicle pull over and stop their vehicle provided it can be done safely and is not otherwise prohibited by law.

He submits that, by giving a motorist the option of stopping their vehicle at any point prior to reaching the emergency vehicle, the legislators were making it clear that an offence under s. 159(3) could not be committed until the act of passing occurred. [ 12 ] The appellant also emphasizes that the word “stopped” as used in both the body of the legislation itself as well as the headnotes makes it clear that the legislators’ intent was to apply the legislation only to stopped vehicles. [ 13 ] Finally, the appellant submits that the legislative intent for

section 159 can best be ascertained by way of analogy to section 144(18) of the HTA , the

section dealing with failing to stop at a red light. That

section reads as follows:

(18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown. R.S.O. 1990, c. H.8, s. 144 (18) . [ 14 ] The appellant submits that that

section creates two obligations upon approaching a red light: the driver must stop and not proceed any further until the light turns green. He argues that the learned justice of the peace’s

interpretation of section 159(3) created an obligation on a driver approaching a stopped vehicle to change lanes and that obligation would not cease even if the emergency vehicle did not remain stopped. [ 15 ] By analogy, he argues that such an

interpretation could not be sustained for section 144(18), as a driver approaching a red light would not need to stop if the light changed to green during the approach. The appellant submits that it is just as illogical to interpret the actus reus for section 159(3) as occurring before the driver has passed the stopped vehicle as it would be to interpret the actus reus of section 144(18) as occurring before the vehicle reaches the intersection. Position of the Respondent [ 16 ] Counsel for the Crown, who was not the prosecutor at trial, submits that the learned justice of the peace’s

interpretation was one which was open for him to make. He notes that, while there is no wording in section 159(3) which includes a quantitative distance requirement, the term “upon approaching” does not result in an overly broad application. He submits that the

section also requires that any lane movement be done “safely” without providing guidance as to what might constitute “safe” or “unsafe” in the circumstances. Rather, it is left up to the presiding justice to determine whether or not a safe lane change could be done in the circumstances. In the same way, he submits, the legislation allows for the trier of fact to determine whether or not a driver is “approaching” a stopped emergency vehicle. In this case, the Crown submits, the learned justice of the peace was permitted to make the findings of fact that he did and such findings do not amount to impermissible legislative

interpretation. [ 17 ] The Crown submits that any analogy to section 144(18) is not helpful, since the purposes of the two sections are quite different. He notes that the purpose of

section 159 is the protection of emergency personnel, a fact conceded by the appellant in his submissions. He submits that intent of the legislation, to provide a safeguard for emergency personnel working on the side of the road, would be defeated by the

interpretation proposed by the appellant, as any risk to safety is not limited to the moment when a vehicle passes the emergency personnel. The Crown notes that the danger that s. 159(3) seeks to prevent can, and will, arise when a vehicle approaching emergency personnel at highway speeds does not slow down or move over. This, he argues, is very different from the risk that section 144(18) seeks to reduce, namely collisions which occur at intersections. Case Law [ 18 ] Guidance from both the Supreme Court of Canada and from the Court of Appeal establish that there are two principles to be considered when interpreting statutes. The first principle is that "the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." This means the

section in question must be given a fair and liberal reading. ( R. v. Araujo [2000] S.C.R. 992 , at paragraph 26; and A.(A.) [2015] O.J. No. 4516 (OCA) , at paragraph 67 ). [ 19 ] The second principle is the presumption of consistent expression. "This principle holds that legislatures use language carefully and consistently so that, unless the contrary appears, the same words have the same meaning within a statute and different words have different meanings." ( A.(A.) , supra , at paragraph 68). [ 20 ] An examination of legislative intent is not warranted in all cases.

In fact, it is only open to courts to engage in an examination of legislative intent when the legislation itself is ambiguous and open to more than one

interpretation. As noted by the S.C.C. in the decision of R. v. McIntosh : In resolving the interpretive issue raised by the Crown, I take as my starting point the proposition that where no ambiguity arises on the face of a statutory provision, then its clear words should be given effect. This is another way of asserting what is sometimes referred to as the "golden rule" of literal construction: a statute should be interpreted in a manner consistent with the plain meaning of its terms. Where

the language of the statute is plain and admits of only one meaning, the task of

interpretation does not arise (Maxwell on theInterpretation of Statutes (12th ed. 1969), at p. 29). R. v. McIntosh (SCC), [1995] S.C.J. No. 16 (S.C.C.), at paragraph 18 Analysis [21] In my view, there is nothing ambiguous in the language of

section 159 of the HTA. The wording in the

section is clear andmakes the purpose of the law apparent; namely to ensure that police, fire, ambulance and other emergency personnel can perform theirduties on the highway in the safest possible manner. That safety is achieved by drivers performing the two tasks directed of them insection 159(3); first in slowing down upon approaching stopped emergency vehicles with their lights activated and second by changinglanes if safe to do so. [22] The submission of the appellant is essentially that s. 159(3) requires motor vehicles to change lanes only once they have passedthe emergency vehicles. That submission flies in the face of the clear language of the

section and would fail to meet the objective thelegislation clearly intends to be met. Furthermore, the

interpretation the appellant asks this court to apply to the

section wouldeffectively result in replacing the phrase “upon approaching” with the phrase “upon passing”. As noted by the S.C.C. in R. v. McIntosh,the judge's task is to interpret the statute, not to create it. Adopting the

interpretation proposed by the appellant would in fact beamending section 159(3), a role left for the legislature and not the judge. [23] In my view, the

interpretation of section 159(3) made by the learned justice of the peace was the correct one and the ground ofappeal urged by the appellant must fail. [24] The appeal is dismissed. Released: April 19, 2017 Signed: Justice D.A. Kinsella