City of Toronto v. Brent, 2013 ONCJ 296

COURT FILE No. Toronto Citation: City of Toronto v. Brent, 2013 ONCJ 296 ONTARIO COURT OF JUSTICE BETWEEN: ) ) CITY OF TORONTO ) Ms. P. Liu (Respondent) ) for the Respondent ) — AND — ) ) ROBERT BRENT ) (Appellant) ) Self-represented ) Appellant ) ) Heard: March 7, 2013 ) ) ENDORSEMENT NAKATSURU J.: [1] This is an appeal of a conviction for speeding 57 km/hr in a posted 40km/hr zone contrary to s. 128 of the HighwayTraffic Act. This offence occurred on Davenport Avenue in the city of Toronto. At the hearing of the appeal, I requested writtensubmissions.

After carefully reviewing the transcripts, the submissions, and the authorities, I dismiss the appeal for the followingreasons. [2] Some of the alleged errors argued by the appellant deal with factual findings made by the Justice of the Peace. Inparticular, these submissions focus on the reliability and credibility of P.C. Glancy, the officer who measured the appellant’s speed usinghis laser device. The Justice of the Peace accepted the evidence of the officer finding it be “clear, concise, detailed.” I have reviewedthe full testimony of P.C. Glancy.

In my view, it was open to Justice of the Peace to make these findings based upon the whole of theevidence. They are reasonable and should not be interfered with on appeal. [3] At trial, there was no serious issue taken with the fact that the appellant was speeding.

Rather, he raised the commonlaw defence of necessity and took issue with whether the relevant highway signs setting out the speed limit were properly posted inaccordance with the regulations. [4] The appellant does not appeal the decision of the Justice of the Peace rejecting his common law defence of necessity. [5] In essence, the appellant argues that the Justice of the Peace erred in law by failing to recognize and apply regulationsmade under the Highway Traffic Act that pertain to the height and visibility of speed limit signs.

Further, he argues that she misconstruedsome the evidence relevant to this issue. [6] Although the Justice of the Peace’s reasons on this issue are not the model of clarity and are quite brief, I find that sheapplied the presumption of regularity when it comes to the posting of the signs and found that it was not rebutted by the evidence. Thepresumption of regularity applies to the posting of speed limit signs in accordance with the pertinent regulations: see R. v. Garabino (2010), 2010 ONCJ 300 , 100 M.V.R. (5th) 150 (Ont. C.J.).

While this presumption is rebuttable, in this case, the Justice of thePeace concluded the appellant had not rebutted it. The Justice of the Peace rejected the appellant’s testimony as self-serving. While Imay not have come to the same conclusion, this was a factual finding that she was entitled to make on the evidence. [7] In addition, the Justice of the Peace found that the signs were visible to the motorists. She based this upon the evidenceof the officer. However, the appellant argues that the regulations require them to be visible at all times for a distance of at least 60meters.

While there is some evidence that the first sign was obstructed to a degree by a tree and lamp posts when viewed from certainperspectives, the Justice of the Peace manifestly accepted the police officer’s testimony that both speed limit signs, especially the secondsign, were clearly visible to motorists. The officer testified that the second sign was clear, visible, and properly posted. In his testimony,it was visible from Dupont Street which he measured to be 250 meters away with his laser. [8] Equally determinative against the appellant’s overall position is the binding decision of R. v. Priest, [1961] O.J.

No. 98(C.A.). In that case, the appellant was convicted of failing to stop at a stop sign at an intersection. The Deputy Magistrate found that thestop sign was erected 6 inches higher and 6 inches further away from the travelled portion of the highway than the regulations permitted.The same arguments made by Mr. Brent were made by Mr. Priest. Indeed, it was argued in that case that the variation in the erection ofthe stop sign was significant. The degree of variation was more significant than in the case at bar.

Roach J.A. speaking for the court heldthat a stop sign need not be in strict compliance with the regulations provided it was in substantial compliance with them (at paragraph

10): The circumstances that inspired this type of traffic control required that stop signs if they were to accomplish the purpose intended should be of a type and design and so placed that they would be seen by drivers of vehicles approaching the intersection in time to enable them to stop. If at the time of their erection they comply strictly with the regulations and are not subsequently interfered with by nature or some untoward circumstance so as to become obscured to the driver exercising a reasonably careful lookout, then the driver cannot be heard to say that be did not see the sign.

I think that is the effect of those provisions in the statute which require stop signs to comply with the regulations. In other words, with respect to such a sign it matters not whether the driver saw it or not. No independent evidence is necessary to support the conclusion that he should have seen it. I apprehend the purpose of the specifications for stop signs as set out in the regulations to be that they shall be of a type and design and so located that drivers keeping a reasonable lookout would see them and would have no excuse for failing to see them.

On the other hand, a stop sign that complies, though not strictly, but so substantially, with the regulations as to reasonably indicate that it is authoritative and erected by the competent authority in intended compliance with its power under the Act, in my opinion, is equally binding on the diver (sic), provided that he could have seen it if he was keeping a proper lookout. In other words, with respect to that particular stop sign he can be heard to say that he did not see it.

I hasten to add, however, that such a statement by him will not exonerate him unless he also shows that by reason of the deviation from the specifications he could not have seen it while keeping a proper lookout. That also must be the effect of the Act, because otherwise a stop sign which due to human error did not strictly comply with the regulations would really be a booby trap and defeat rather than accomplish its intended purpose.

Drivers of motor vehicles on, for example, a through highway are entitled to expect that other drivers approaching on an intersecting highway will obey the stop sign erected there, if it should transpire that at a given intersection due to human error the stop sign did not strictly comply with the regulations, then the motorist approaching the through highway if he knew that fact, or indeed whether he knew it or not, could ignore the stop sign to the hazard of traffic proceeding on the through highway. Manifestly the Legislature never intended that result.

It would just be preposterous. [ 9 ] In a similar vein, on the whole of the evidence including that of the appellant, the two speed limit signs were in substantial compliance with the regulations. They were posted in a place and position to serve the function they were designed to serve; to give notice to drivers of the posted speed limit in the area. Any driver keeping a proper lookout should have been able to see them.

The fact that they may have been a few inches beyond the specifications of the regulations or may not have been visible for every second of a driver’s approach to the sign should not afford a defence at trial. Otherwise, as the Justice of the Peace was alert to, every speeding trial would become a trial of tape measures. Such a result would be equally preposterous. [ 10 ] The appeal is dismissed. I would like to thank both parties for their thorough and helpful submissions. More specifically, I would be remiss in not extending to the appellant special recognition given his lack of formal training in the law.

Released: May 29, 2013 Signed: