R. v. Willis, 2013 ONCJ 695

Citation: R. v. Willis , 2013 ONCJ 695 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES COURT HER MAJESTY THE QUEEN v. ROBERT WILLIS ********** R E A S O N S F O R J U D G M E N T AS GIVEN BY HIS WORSHIP JUSTICE OF THE PEACE P. BONAS on JUNE 7, 2013 at BURLINGTON, Ontario ********** CHARGE: s. 144(18) – Highway Traffic Act Red light – fail to stop ********** APPEARANCES : I. Lagden Municipal Prosecutor G. Ellis Agent for the defendant Statutes and Cases Cited : R. v. W(D) (1991) 1.S.C.R. 742 R. v. Riley (1978) 422. C.C.C. 2 nd . Ed. 437 Highway Traffic Act R.S.O. 1990 Section 144(18) FRIDAY, JUNE 7, 2013 J U D G M E N T BONAS, J.P.(OCJ)(Orally) :

The defendant, Robert Willis, was charged on certificate of offence, 6432290A, with the offence of red light, fail to stop, under s. 144(18) of the Highway Traffic Act . The allegation is dated the 12 th of January 2012. The offence is alleged to have been committed at Ontario Street south and Derry Road in Milton. The matter was adjourned – I believe it was heard on the 6 th day in January, adjourned to April for the decision and further adjourned to today’s date for decision in this court at 9:00 a.m.

The prosecution’s case commenced with the evidence of Constable Dylan Price of Halton Regional Police who testified that on January the 12 th 2012, at about 12:54 a.m., he was on duty while parked on the southeast corner of Derry Road and Ontario Street south in Milton. Constable Price went on to indicate that this was a vacant lot. That he was there for enforcement purposes of the traffic signals at that intersection and that it was raining lightly with small puddles of water on the travelled portion of the roadway. Constable Price explained that Derry Road had two lanes eastbound and two lanes westbound.

That it was a posted 60 kilometer per hour highway while Ontario Street north of Derry has two lanes northbound and two lanes southbound and was a posted 50 kilometer zone. Further that south of Derry Road, the roadway turns into Regional Road 25 which is known as, at that juncture, Regional Road 25, with one lane northbound and one lane southbound and has a posted speed limit of 60 kilometers per hour. The officer went on to indicate that he positioned himself and his cruiser in a manner that provided him with a clear and unobstructed view of the intersection.

At the time of his initial observation, traffic for northbound and southbound had a green light on Ontario Street. Further that he observed the lights at the intersection turn from green to amber and he also observed two transport trucks southbound on Ontario Street in lane number one described as the left through lane. Further that the first transport truck entered the intersection when the amber light was still fresh.

Constable Price went on to testify that he observed a second transport truck which was about 10 to 15 meters north of the white intersection stop line when the intersection light turned red for north/south traffic and that this vehicle continued through the red light without stopping. He testified that based on his training and experience as a police officer, he estimated the speed of the second transport truck to be approximately 60 kilometers per hour as it entered the intersection, and that he did not notice any effort on the part of the operator of that transport truck to stop for the red signal light.

Further that he did not lose sight of this vehicle. He pursued it, stopped it and the driver, Mr. Willis, identified himself to the officer’s satisfaction as Robert Willis. He went on to indicate that Mr. Willis was operating a 2001 Kenworth, white in colour, with a plate number of 6431YK. Constable Price went on to testify that he returned to the intersection and observed three cycles of the traffic signals for Derry Road and Ontario Street or Regional Road 25, and that there was a four second amber light and that the system appeared to be working properly.

The officer went on to explain in his testimony that he was looking at the northbound lights from his position on the southeast corner and comparing them to the southbound traffic to ensure that the northbound and southbound traffic signals were synchronized. In cross-examination, Constable Price confirmed that the parking lot where he was positioned formerly housed a car dealership and that he was facing northbound about seven to eight car lengths from the intersection near an entrance off Regional Road 25. That the trucks

were following each other; that they appeared to be from the same company, that he believed that there were sensors that maintained the lights static green to eastbound and westbound traffic on Derry Road and that they remained red until there’s cross traffic for northbound and southbound traffic. That the first truck did not trigger the green because the light had already been green, then amber and the first truck entered the intersection on the amber. After the prosecution closed its case, the defendant, Mr.

Willis, testified that he has been a transport truck driver for 18 years, that he holds an A-C-M licence with a class ‘Z’ endorsement and that on the 12 th of January 2012 he was the driver of a 2011 Kenworth truck towing two 31B trailer or trains. The full compliment measured 83 feet in length. Further that he was proceeding southbound on Ontario Street in tandem with another transport from the same company, Gordon Food Service, on the way to the depot in St. Catherine’s. Mr.

Willis went on indicate: 1 ) That the traffic lights at Ontario Street is a triggered light. 2 ) That the first truck slowed down to approach the light and that he maintained a distance of three to four seconds behind that truck. 3 ) That the first truck triggered the green light as it approached and it proceeded through the intersection. 4 ) That that truck got through the intersection. 5 ) That he, meaning Mr. Willis, got over to the crosswalk line and noticed that the traffic light had turned to amber. 6 ) That he got through the intersection and later noticed Constable Price. 7 ) That he, Mr.

Willis, was traveling at approximately 50 kilometers per hour. 8 ) That he was about 40 feet behind the first truck. 9 ) That the light is green unless Ontario Street is triggered. 10 ) That there were no vehicles in front of the two transport trucks so the first truck triggered the light. The defendant was cross-examined by the prosecutor and after the defendant closed his case, and the defendant was represented by Mr. Ellis at the time, the Court entertained submissions from both counsel.

Both witnesses gave their evidence in an equally forthright and convincing manner and while it has been said that the analysis in R. v. W(

D) is not sacrosanct, this Court will attempt to undertake to show a reasoned and logical path to its decision. Both the defendant’s evidence and more directly his representative, Mr. Ellis’s able submissions, seeks to convey that the specter of reasonable doubt has reared its head. Applying an established legal principal, it is not proper for this Court to simply choose between the evidence of Constable Price and that of the defendant, Mr. Willis, and thereafter reach a conclusion of guilt beyond a reasonable doubt.

This Court has an obligation to examine the totality of the evidence to determine if there is a reasonable doubt notwithstanding the witnesses’ apparent credibility. That is taken from case of R. v. Riley , [1978], 422 c.c.c. 2 nd ed. 437. Reasonable doubt is defined as an honest and fair doubt based on reason and common sense. It is a real doubt. Not an imaginary or frivolous doubt which might be conceived by an irresponsible juror to avoid his or her plain duty. Mr. Willis’ evidence can be summarized thus:

1) That while southbound on Ontario Street he indicated that he was traveling at about 50 kilometers per hour some three to four seconds behind the other transport truck which triggered the traffic signal to turn green on the approach to the intersection at Derry Road. 2) That he was 40 feet behind the first truck and as he got through the intersection, he noticed that the light turned to amber. There are, however, some glaring weaknesses in Mr. Willis’s account when his evidence is carefully considered. Constable Price did not say that the light was green when the first truck approached the intersection.

The officer provided his evidence in some sequence. He testified that his first observation was of the green light which turned to amber for northbound and southbound traffic. He then said he also observed two transport trucks in lane number one southbound and that the first truck entered the intersection when the amber was fresh. So Mr. Willis’s claim that the officer admitted that the light was green when the first truck approached the lights or the intersection, that claim is factually incorrect. Secondly, Mr.

Willis’s claim that the first truck triggered the green light is suspect given that it does not account for P/C Price’s initial observations. Now Mr. Willis wishes the Court to accept that the light was red for northbound and southbound traffic and that somehow the green was triggered by the approaching first transport truck. Of some note, is that Mr. Willis testified that he did not see the Derry Road lights turn to amber. However, for a traffic signal to be triggered green, logically the lights on Derry Road must have or would have had to go through its normal cycle.

Further it is logical to infer that the system of placing sensors on the roadway is designed to detect the presence of traffic waiting at traffic signals and thus minimize the amount of time when a signal is given to an empty roadway. The first truck was approaching the intersection and was not stopped, a requirement for such a system to be activated. I wish to emphasize that this Court is simply applying common sense to the issue and acknowledges that it does not have expert evidence to confirm the requirement that a vehicle must be stopped to activate or trigger any such mechanism.

However, it is simply one part of Mr. Willis’s account that does not add up and when taken together with his other missteps and illogical conclusions, at the time they appear suspect as described by the prosecutor, Mr. Lagden. Mr. Willis’s account does not allow for any amber light for east/west traffic on Derry Road. He agreed that he was looking at the north/south lights and did not see the lights for east/west traffic cycle from amber to red. In addition, he agreed that when the lights for north/south are red that they would be green for east/west traffic.

Obviously the lights for Derry Road would have to go through a cycle prior to any activation of the green for the north/south traffic. Mr. Willis has not provided any evidence as to the colour of the lights as he approached the intersection. Neither has he said how far he was from the intersection when he saw that the first truck triggered the light green for southbound traffic. What the Court learned from Mr. Willis’s testimony was that he was some 40 feet behind the first truck and about three to four seconds to its rear. Even if the first truck slowed his motor vehicle and Mr.

Willis’s vehicle was then, as he testified, closer to the first truck, that distance of 40 feet seems very close for one transport truck to be following another at 50 kilometers per hour in a light rain. Given that it is an established fact that at 50 kilometers per hour, a vehicle travels a distance of approximately 44 to 45 feet per second, tThat does not comport with Mr. Willis’s testimony that he was three to four seconds to its rear. If that were the case at the lower end of the equation, Mr. Willis would be about 132 feet behind the first truck or 176 feet at the high end.

Now this Court remains mindful that it is not Mr. Willis’s responsibility to prove his innocence, but rather it is the prosecution that has

the onus to prove its case beyond a reasonable doubt. The exercise that I’ve gone through is merely an examination into the lack of precise and logical testimony from Mr. Willis who I hasten to add seemed to be a fine gentleman. And while he, Mr. Willis, like most defendants has had time to consider the violation and attempt to justify it, parts of his own testimony reveal that he was probably traveling so close to the truck in front of him that he did not even see the light until he was about to enter into the intersection.

The defendant’s testimony that the first transport was right at the intersection when the north/south lights turned to green and that he was 30 to 40 feet behind at the time, would mean that the front of the vehicle would be approximately 123 feet from the intersection. Given that the length of the combination of vehicles that he was operating was 83 feet, plus the 40 feet that he said he was behind the first vehicle. Now traveling at approximately 50 kilometers per hour, prior to slowing down as Mr. Willis testified he did, Mr.

Willis would travel the distance of 123 feet in approximately three seconds given that, again, a vehicle travels at 40 feet approximately per second at 40 to 50 kilometers per hour. If Mr. Willis saw the amber light as he crossed the line or as he later said, 10 feet into the intersection, that would mean that the green light remained on for merely three to four seconds. That makes absolutely no sense for a system to operate like that. What triggers the north/south light is traffic sitting stationary on the grill or on the sensors in the pavement on the secondary road which is Derry Road, east and west.

The Court can take judicial notice of the fact that R.R. 25, Regional Road 25, is a main thoroughfare, a primary route. The traffic signals on the primary route would remain green until the sensors are activated for the opposite direction. Now simply because the Court has chosen not to address every contention by the defendant does not mean that this Court has not turned its mind to all the issues raised in its consideration. The Court has considered that Mr.

Willis testified that he slowed his vehicle down upon approaching the intersection, described as gearing down or downshifting, and that the distance between his vehicle and the first truck decreased in calculations taken at the lower numbers. Overall, Mr. Willis’s testimony seemed somewhat of an afterthought account of what actually transpired. And as I said, while many in Mr. Willis’s position testify in ways to justify their points of view, Mr. Willis’s account changed at times when it was beneficial to him.

One such instance was when it became apparent to him that his testimony of the 100 feet distance he was from the intersection when he saw the red light for southbound traffic, that that estimate could not be accurate given 30 feet from the intersection, plus 83 feet the length of the combination of vehicles that he was operating, Mr. Willis then said it was a little longer and actually doubled the distance when questioned by Mr. Lagden in cross-examination, to 200 feet.

He had earlier testified that he had been maintaining a three or four second distance behind the lead transport truck at 50 kilometers per hour and later changed that distance to 30 to 40 feet, three to four seconds at 50 kilometers per hour, would have meant that he was claiming to be between 132 to 176 feet behind given, again, the equation of 44 feet that vehicle would travel per second at 50 kilometers per hour. Now even if the Court were to give Mr.

Willis the benefit of the doubt by taking it into account that he testified that he was down shifting to a slow speed, that distance would still be considerably different or longer than the 30 to 40 feet that he testified to. In able submissions by the legal representative, Mr. Geoff Ellis, who asked the Court to be mindful of the prosecution’s burden of proof, Mr. Ellis suggested that the defendant would not deliberately disobey a red light with an 83 foot long B-train.

We can all appreciate that under the regulatory scheme and the category of offence that this particular allegation falls under, that the component of mens rea is not required. Individuals with many years of experience some who are holders of licences with endorsements similar to the defendant’s make errors in judgment. Indeed over the years, this Court has seen and read of it. So it’s not that the Courts have believed that these persons purposely or deliberately committed these types of offences, but that it had been proved beyond a reasonable doubt that they did.

I also wish to point out that I did not accept Mr. Willis’s testimony of what P/C Price told him about the amber light on Ontario Street and the duration of that amber light. Mr. Willis’s exact words were and I quote, “He told me that it has a seven second delay, that it couldn’t have been amber.” That particular statement seems to the Court to be a reference to something else and not to the duration of the

southbound amber light. On the contrary, Constable Price was positioned in an area that gave him a clear view of the intersection. While Mr. Willis was driving an 83 foot combination motor vehicle shortly after midnight in light rain, Constable Price was parked stationary and focused for enforcement purposes. The Court accepts that Constable Price was precise as to distances when he testified. That the motor vehicle operated by the defendant, Mr. Willis, was some 10 to 15 meters from the white stop line on the north side when the light turned to red.

He further testified that he checked the lights and that they were synchronized. The Court has not speculated as to the calculations. Instead the Court has used long accepted distances of formulas and speed, did some arithmetic and applied some common sense. The analysis in R. v W(

D) is not sacrosanct but what the Court has tried to articulate paints a picture. In conclusion, I applied the third part of the analysis by finding that the evidence of Mr. Willis and his account is not accepted and that the Court finds that the prosecution’s evidence which the Court has accepted is proof beyond a reasonable doubt, that in fact Mr. Willis did in fact commit the offence under s. 144(18) of the Highway Traffic Act . So accordingly, a conviction is entered. MR. LAGDEN: Requesting the set fine of $260.00 please. THE COURT: Anything on the fine, Mr. Ellis? MR.

ELLIS: Your Worship, perhaps 90 days to pay. THE COURT: Okay, $260.00, 90 days to pay. MR. ELLIS: The address remains the same to the best of my knowledge. THE COURT: Okay. MR. ELLIS: Thank you, Your Worship. Thank you, my friend. THE COURT: Yes. MR. ELLIS: I thank the Court for its indulgence. I believe those are my matters, if I could be excused. THE COURT: Yes, Mr. Ellis. MR. ELLIS: Thank you. ...WHEREUPON THIS MATTER WAS CONCLUDED FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Angee Balaisis , certify that this document is a true and accurate transcript of the recording of R. v.

Robert Willis in the Ontario

Court of Justice , Provincial Offences Court , held at 2051 Plains Road east, Burlington, Ontario taken from Recording No. burl2_20130607, which has been certified in Form 1. _ September 19, 2013 _ ____ Angee Balaisis _____ Date Angee Balaisis Court Reporter Photostatic copies of this transcript are not certified and have not been paid for unless they bear the original signature of Angee Balaisis, and accordingly are in direct violation of the Ontario Regulation 587/91, Courts of Justice Act, January 1, 1990 .