Durham (Regional Municipality) v. Heidi Bartlett, 2017 ONCJ 333

ONTARIO COURT OF JUSTICE CITATION: Durham (Regional Municipality) v. Heidi Bartlett , 2017 ONCJ 333 DATE: 2017 05 24 COURT FILE No.: 5280404Z BETWEEN: REGIONAL MUNICIPALITY OF DURHAM — AND — HEIDI BARTLETT Before Justice of the Peace M. Coopersmith Heard on December 16, 2016 and March 30, 2017 Reasons for Judgment released on May 24, 2017 Mr. T. J. McKinnon................................................................................... for the prosecution Mr.

Ron Metzger............................................................... for the defendant Heidi Bartlett JUSTICE OF THE PEACE COOPERSMITH: [ 1 ] On March 2, 2016, at 2:50 pm, at Taunton Road and Garrard Road in Whitby, Heidi Bartlett was charged under

Part I of the Provincial Offences Act , R.S.O. 1990, c.33 [“POA”] with “Red Light – Fail to Stop”, contrary to subsection 144(18) of the Highway Traffic Act , R.S.O. 1990, c. H.8 [“ HTA ”]. [ 2 ] Mr. T.J. McKinnon prosecuted this matter. Ms. Bartlett was represented by her step-father, Mr. Ron Metzger. The trial commenced on December 16, 2016 and continued on March 30, 2017. I. EVIDENCE [ 3 ] Mr. Richard Lai-Cheong and Durham Regional Police Officer Erin Buchanan testified on behalf of the prosecution. Ms. Heidi Bartlett and her sister, Amanda Bartlett, gave evidence on behalf of the defence. (

a) Richard Lai-Cheong [ 4 ] Mr. Richard Lai-Cheong was driving his Grey Honda Odyssey minivan northbound on Garrard Road in Whitby sometime around 2:30 pm on March 2, 2016. He was approaching the four-way intersection at Taunton Road. This intersection is controlled by traffic control signals. Mr. Lao-Cheong stopped behind two motor vehicles ahead of him that were stopped at a red traffic light. When the light they were facing northbound on Garrard Road turned green, the traffic on Taunton Road stopped, the two motor vehicles in front of him proceeded through the intersection and Mr.

Lai-Cheong followed behind them. When he was almost completely through the intersection, he heard a bang at the rear of his motor vehicle, causing his vehicle to spin and hit an island in the intersection. His vehicle came to rest in the westbound lanes of Taunton Road on the west side of Garrard. Mr. Lai-Cheong got out of his vehicle and saw the driver of the vehicle that hit him on her cell phone, appearing to him to be laughing. The rear passenger side door and wheel well of his vehicle sustained damage. Subsequently it had to be towed and was written off at approximately $35,000. Mr.

Lai-Cheong suffered neck and back pain. (

b) Evidence of Durham Regional Police Officer Erin Buchanan

[5] On March 2, 2016, a call to Durham Regional Police came in at 2:19pm. Officer Buchanan was dispatched to the motorvehicle collision at the intersection of Taunton Road and Garrard Road in Whitby, in the Region of Durham. There, she observed Mr.Lai-Cheong’s motor vehicle on the median, just north of Taunton Road on Garrard Street. The other vehicle was a 2003 grey Pontiac. Heidi Bartlett identified herself to the officer as the driver of the Pontiac.

Officer Buchanan observed the photograph on the defendant’svalid Ontario driver’s licence and was satisfied with the identification of the defendant. [6] Officer Buchanan took statements from both drivers. As she often does, she advised the defendant that anyone who provides anuntrue statement to the police can be arrested, as this would be an offence. The defendant first advised the officer that she had a greenlight. Ms.

Bartlett later advised that she was up in the air, not knowing if she had a red or a green light, but was pretty sure she had agreen light. [7] The officer denied telling the defendant that she had to charge someone and that it was going to be the defendant; OfficerBuchanan stated that she was under no obligation to charge anyone. The officer also advised Ms.

Bartlett about the options available toher on the back of the Provincial Offence Notice. [8] Officer Buchanan was at the collision site at the intersection of Taunton Road and Garrard Road in Whitby for about half anhour and the traffic lights appeared to be functioning properly. During that time she never saw the lights green on all directions. (

c) Evidence of Heidi Bartlett [9] On May 2, 2016, just after 2:00pm, Ms. Bartlett was driving by herself westbound in the right through lane on Taunton Road. She advised that when she was about three car lengths from the intersection of Taunton Road and Garrard Road, she first noticed hertraffic light was green. As she was going through this green light, a van came northbound through the intersection and she ended uphitting the backend of that van. She had noticed that van when she was about one car length from it and it was already halfway throughthe intersection.

Although she braked, it was too late for her to stop and her vehicle struck the van. [1] Ms. Bartlett did not agree with Mr. Lai-Cheong that he was the third vehicle from the intersection when his light turned greenand he proceeded northbound behind these other two vehicles. She emphatically claimed that her light was green. [2] Ms. Bartlett also testified that the officer told her that she had to charge someone and since she did not know who to charge, itwould be the defendant. The defendant also claimed the officer recommended she fight the ticket in court. (

d) Evidence of Amanda Bartlett [3] Amanda Bartlett, the defendant’s sister, arrived at the scene of the motor vehicle collision about ten minutes after it hadoccurred. She advised that she heard the officer tell the defendant that she did not know who to charge, but had to charge her sister. Shealso said she heard the officer recommend that the defendant fight the ticket. [4] The defendant’s sister is not an independent witness. She was not a witness to the motor vehicle collision. I give her evidencelittle to no weight. II. SUBMISSIONS (

a) Defence Submissions [5] Mr. Metzger, on behalf of the defence, submitted that there was no proof the defendant ran a red light or that Mr. Lai-Cheonghad a green light. It was only a guess by the police officer. He advised that the defendant said throughout the trial that her light wasgreen, whereas the officer’s evidence conflicted with other evidence that was provided. Other than Mr. Lai-Cheong, no other witnesstestified and, hence, there was no other evidence that there were two motor vehicles in front of his vehicle. Ms. Bartlett saw his vehicleat the last second and slammed on her brakes and hit the back of the van. (

b) Prosecution Submissions [6] The prosecutor asked the Court to rely on R. v. W.D. in order to find that Mr. Lai-Cheong was the third car waiting at a redlight and, when the light he was facing turned green, he proceeded through the intersection behind the other two vehicles. He submittedthat Mr. Lai-Cheong’s evidence should be accepted. Mr. Lai-Cheong was almost through the intersection when his vehicle was struckby the vehicle being driven by Ms. Bartlett. Ms. Bartlett, on the other hand, was one car-length away when she first saw Mr. Lai-Cheong’s vehicle.

She first told the officer that her light was green, then she was not sure about this. She never refuted this statementthat she had given to the officer and her evidence that her light was green should not be accepted. III. RELEVANT LEGISLATIVE PROVISION [7] Heidi Bartlett is changed under subsection 144(18) of the HTA, which reads: 144 (18) – Red Light – Every driver approaching a traffic control signal showing a circular red indication and facing the indication shallstop his or her vehicle and shall not proceed until a green indication is shown. IV.

FINDINGS AND ANALSIS [8] I am bound by the Supreme Court of Canada’s decision in R. v. Sheppard, 2002 SCC 26 , [2002] 1 S.C.R. 869, andsubsequent cases which have advocated a functional context-specific approach to adequacy of reasons. Consequently, I have a duty togive reasons for my findings and decisions that are sufficient (1) to justify and explain the result; (2) to tell the losing party why he or shelost; (3) to provide for informed consideration of the grounds of appeal; and (4) to satisfy the public that justice has been done. (

a) Were both the east/west traffic lights and the north/south traffic lights green light at the same time?

[9] Mr. Lai-Cheong stated that his northbound light at the intersection of Garrard Road and Taunton Road in Whitby was green. Ms. Bartlett claims her traffic light westbound on Taunton Road was green. [10] Durham Regional Police Officer Buchanan testified that, on March 2, 2016, the traffic control signals at the intersection ofTaunton Road and Garrard Road in Whitby were functioning properly and the lights were never green at the same time in all fourdirections. I accept her evidence.

Furthermore, in the absence of evidence to the contrary, I rely on the presumption of regularity to findthat both the north/south lights and the east/west lights could not have been green at the same time. [11] The presumption of regularity is a rebuttable presumption that would give way to contrary evidence.

The strength of theevidence necessary to displace the presumption of regularity depends on the nature of the case and the person claiming evidence to thecontrary bears the burden of establishing on a balance of probabilities that such contrary evidence exists. [12] In determining that both the northbound/southbound traffic lights and the eastbound/westbound lights cannot be green at thesame time, I am persuaded by R. v. Scetto, [2013] O.J. No. 2043 (O.C.J.), in which Justice of the Peace R.

Quon states that this mutualexclusivity is “based upon the presumption of regularity and based on the policy reason of safety and the protection of the public usingthe intersection”. He continues at paragraph 186 of his judgment: … In particular, it can be logically presumed that the sequence and phases of the traffic lights at the intersection would not be designedor set up by the municipality so as to make the intersection unsafe or dangerous to motorists and pedestrians using or crossing at theintersection.

For example, the traffic lights would not be sequenced so that there would be a green light for both Hurontario Street andBristol Road at the same time, because logically, having green lights being on at the same time for both the east-west and the north-south directions would cause a very dangerous and unsafe situation. Therefore, the sequence of traffic lights at an intersection clearlywould not be designed to be unsafe.

And, it is this premise that would be the basis for finding that the sequence of automatic trafficlights at an intersection would not be designed to be unsafe, but designed and sequenced for protecting the public, and that the erectionof automatic traffic lights at an intersection to control traffic and pedestrians for all directions of the intersection would be presumed tobe regular and erected to protect the public. [13] The defence has provided no evidence to rebut the presumption of regularity and, as I stated above, I accept Officer Buchanan’sevidence that the traffic control signals were functioning properly.

For all of these reasons, I find that both the north/south traffic lightson Garrard Road and the east/west traffic lights on Taunton Road could not have been green at the same time. Hence, I find that thedefendant travelling westbound on Taunton Road and Mr. Lai-Cheong travelling northbound on Garrard Road could not both be facing agreen light at the same time. (

b) Assessing reliability and credibility – applying R. v. W.D.: [14] As issues of credibility have arisen, I look to the legal principles that guide me in assessing the reliability and credibility of Ms.Bartlett, and Mr. Lai-Cheong. Beginning with the test in Faryna v.

Chorney, (BC CA), [1952] 2 D.L.R. 354(B.C.C.A.), commencing at paragraph 10 this case reads: If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in thewitness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. Onreflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility ofthe evidence of a witness.

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly whathe has seen and heard, as well as other factors, combine to produce what is called credibility, and cf Raymond v. Bosanquet (1919), (SCC), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a veryunfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisivelyto the conclusion that he is actually telling the truth.

I am not referring to the comparatively infrequent cases in which a witness iscaught in a clumsy lie. The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony ofquick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successfulexperience in combining skilful exaggeration with partial suppression of the truth.

Again a witness may testify what he sincerelybelieves to be true, but he may be quite honestly mistaken. For a trial Judge to say “I believe him because I judge him to be telling thetruth”, is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.[Emphasis added.] The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion.

The law does not clothethe trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trialJudge’s finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it canbe tested in the particular case. [15] This case law has been cited innumerable times since 1952. It has been embraced by our Ontario Courts and the Supreme Courtof Canada [see e.g. R. v. C.S., 2007 ONCJ 712 , [2007] O.J. No. 4207 (O.C.J.), R. v. Haddon, [2007] O.J. No. 2186 (S.C.J.), andF.H. v.

McDougall, 2008 SCC 53 , [2008] S.C.J. No. 54]. [16] In addition, I have considered the general guideline regarding credibility as set out in R. v. W.(D.), (SCC),[1991] 1 S.C.R. 742, wherein Justice Cory, in writing for the majority of the Supreme Court of Canada at pages 757-758, writes asfollows:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 17 ] Simply because the defendant’s testimony may be found to lack credibility, that does not equate to proof of guilt beyond a reasonable doubt.

The burden of proof beyond a reasonable doubt of each element of the offence never shifts from the prosecution. [ 18 ] Applying the jurisprudence to which I have refer, I make the following findings. Mr. Lai-Cheong stated that he was stopped behind two other motor vehicles at a red light and proceed northbound into the intersection behind these two vehicle only after the light turned green. The damage to his vehicle was to the passenger-side rear end of his vehicle.

His evidence was unwavering and I could find not contradictions in his testimony. [ 19 ] The defendant, on the other hand, stated that she saw that the traffic light in her direction was green when she was about three car lengths from the traffic lights and saw Mr. Lai-Cheong’s vehicle when she was only one car length from it. Yet Mr. Lai-Cheong was almost all the way through the intersection when the defendant’s vehicle struck the back end of his vehicle. As stated in Faryna v.

Chorney , supra , “the truth of the story of a witness … must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” I do not find the defendant’s story to be in harmony with what a” practical and informed person would readily recognize as reasonable in that place and in those conditions”. It is a reasonable inference that a driver properly aware of her surroundings would have noticed a vehicle driving across its path well in advance of when the defendant saw Mr. Lai-Cheong’s vehicle.

The fact that she hit the rear part of his vehicle supports further her lack of attention to her surroundings, making less reliable her evidence on the colour of the traffic light she went through. [ 20 ] Moreover, Ms. Bartlett first told the police officer at the collision site that she proceeded through the intersection on a green light. Then she said she was up in the air as to the colour of her traffic light and did not know if she had a red or a green light.

At trial, she was most emphatic that her traffic light was green, contradicting the prior statement she had given to the officer on March 2, 2016. [ 21 ] In addition, Ms. Bartlett said she did not see Mr. Lai-Cheong’s vehicle until she was about one car length from it. Given she did not see his vehicle until that time, I fail to see how she can disagree with Mr.

Lai-Cheong’s evidence that he was the third vehicle from the intersection when his light turned green and he proceeded northbound behind these other two vehicles. [ 22 ] Applying the principles in the jurisprudence above, I find the defendant’s evidence is not reliable. In rejecting it, I am not left with reasonable doubt by it. I accept Mr. Lai-Cheong’s unwavering evidence that he proceeded northbound through the intersection on a green light. In accordance with my findings above, the east/west traffic lights through which the defendant proceeded could not have been green at the same time as Mr.

Lai-Cheong’s northbound light was green; on the contrary, the defendant’s traffic light had to have been red. V. CONCLUSION [ 23 ] For the reasons I have provided, I am satisfied, beyond a reasonable doubt that in the afternoon of May 2, 2016, the defendant, Heidi Bartlett, drove along Taunton Road and through a red traffic control signal, as she proceeded westbound through the intersection at Garrard Road in Whitby.

Consequently, I find Heidi Bartlett guilty of failing to stop her vehicle at a red traffic control signal and to not proceed until a green indication was shown, contrary to subsection 144(18) of the HTA . There will be conviction registered. Released: May 24, 2017 Signed: Justice of the Peace M. Coopersmith