York (Regional Municipality) v. Balanzin, 2017 ONCJ 88

ONTARIO COURT OF JUSTICE CITATION: York (Regional Municipality) v. Balanzin, 2017 ONCJ 88 DATE: February 10, 2017 COURT FILE No.: 4960-997-15-30180408-00 BETWEEN: REGIONAL MUNICIPALITY OF YORK Respondent — AND — MARTIN BALANZIN Appellant PROVINCIAL OFFENCE APPEALS Before Justice J.F. Kenkel Appeal and Ruling February 10, 2017 Ms. Volga Pankou ........................................................................ counsel for the Respondent Mr. Peter Swales .................................................................... Paralegal agent for the Appellant KENKEL J.: Introduction [ 1 ] Mr.

Balanzin appeals his conviction for Failing to Stop at a Red Light contrary to s.144.18.1 of the Highway Traffic Act RSO 1990 c H8 (HTA).

The evidence at trial consisted solely of red light camera evidence pursuant to s.205.15 of the HTA. [ 2 ] The appellant alleges the following errors: • The court should not have convicted where there is no photograph of the vehicle actually in the intersection. • The court referred to outside knowledge not in evidence at trial to convict the accused. • The prosecutor gave evidence via submissions. • There was a reasonable apprehension of bias based on the court’s discussion with the agent for the defendant.

Reference to Facts Not in Evidence [ 3 ] I agree with the Appellant that the court’s reference to sensors and other aspects of the red light camera system not set out in the statute or regulation goes beyond the very limited evidence at trial and is not properly the subject of judicial notice. The Justice of the Peace did not refer to that discussion in his reasons and it does not appear to have played any role in his decision.

Did the Prosecutor Give Evidence? [ 4 ] This trial was based on the three photographs submitted with the encoded evidence as to vehicle speed, times and intersection location all as provided by s.205.15 and regulation.

[ 5 ] The sole issue at trial was what inferences reasonably could be drawn from the circumstantial evidence. The matter moved immediately to submissions. The prosecutor did not give evidence in pointing out certain aspects of the photographs to the court or suggesting inferences that could be drawn from the evidence. No Photograph of the Vehicle in the Intersection [ 6 ] The appellant notes that there is no photograph of the vehicle in the intersection during the red light. They submit that the court simply guessed that the vehicle made a right turn.

The appellant submits that the prosecution photographs failed to prove the offence. [ 7 ] The vehicle in question was photographed 2.3 seconds after the intersection light turned red. The vehicle is shown at the white stop line of the intersection with its wheels turned to the right. The Justice of the Peace noted that the vehicle’s speed was 31km/hr at that time. [ 8 ] In the next photograph taken 1.6 seconds later the vehicle is no longer at the stop sign and is not in or near the intersection. The Justice of the Peace inferred that a vehicle moving at 31km per hour could not instantly come to a stop.

It’s certain that didn’t happen as it wasn’t at the stop line 1.6 seconds later. As the camera field of view shows the intersection forward and to the left but not to the right, and considering the position of the vehicle’s wheels at the time it travelled past the white line the court inferred that the car must have entered the intersection on the red light and turned right without stopping. [ 9 ] The defence concedes that the circumstantial evidence shows the car moved through the intersection but submits that the prosecution cannot show whether it drove straight, to the left or to the right.

The Justice of the Peace reasonably found that the car turned right without stopping. That is the only logical inference on the evidence. In any event the remaining two alternatives referred to by the defence also prove a red light offence. The same result obtained in R v Zanlorenzi [2016] OJ No 5249 (CJ) on the same point. Reasonable Apprehension of Bias [ 10 ] This submission was not made at trial nor was it included in the appellant’s factum.

This point was added as an afterthought during oral submissions on appeal. [ 11 ] The Justice of the Peace did engage in discussion with both parties about the reasonable inferences that could be drawn in these circumstances. The court is entitled to ask focused questions of either party to obtain the benefit of their submissions on particular issues. While I agree that the part of the discussion regarding sensors and technical aspects of the red light equipment was off topic, that wasn’t referred to in the reasons of the Justice of the Peace and played no

part in the court’s decision. Nothing in the proceedings gives rise to a reasonable apprehension of bias. Conclusion [ 12 ] The appeal is dismissed. Appeal and Ruling : February 10, 2017. Justice J.F. Kenkel