York (Regional Municipality) v. Switzer, 2017 ONCJ 86

ONTARIO COURT OF JUSTICE CITATION: York (Regional Municipality) v. Switzer, 2017 ONCJ 86 DATE: February 10, 2017 COURT FILE No.: 9325543Z BETWEEN: REGIONAL MUNICIPALITY OF YORK Appellant — AND — MICHAEL SWITZER Respondent PROVINCIAL OFFENCE APPEALS Before Justice J.F. Kenkel Heard February 10, 2017 Reasons Released February 10, 2017 Ms. Pankou ........................................................................................ counsel for the Appellant Mr. Switzer ......................................................

Father appearing as agent for the Respondent KENKEL J.: Introduction [1] This appeal considers whether the offence of failing to signal a lane change contrary to s.142(1) of the Highway Traffic ActRSO 1990 c H8 requires proof that other vehicles had to stop short or were otherwise affected by the failure to signal. The respondentalso contests the officer’s observations. Section 142(1) HTA [2] Section 142(1) requires that a driver signal a lane change if “any other vehicle may be affected by the movement”.

In R vClarke (ON CA), [2005] OJ No 1825 the Ontario Court of Appeal held at paragraph 23, “To make out the offence, itis only necessary to show that another vehicle may be affected and proof that another vehicle is actually affected is not required.” TheClarke decision was recently applied in this jurisdiction on the same point – Regional Municipality of York v Conforti [2016] OJ No6863 (CJ). The Clarke

interpretation follows the wording of the

section and accords with a purposive reading of the Act which seeks toinstruct drivers to make lane changes safely and does not limit the offence to those situations where collisions or near-collisions occur. [3] The agent for the respondent at trial submitted that s.142 required proof that other drivers were affected by the failure tosignal the lane change. The court accepted that submission and acquitted the respondent on that basis. In doing so the court erred in law. The Officer’s Observations [4] The respondent submits that the officer’s evidence should not have been accepted.

However, at trial the respondent’s agentobserved, “The officer provided very clear evidence that the turn indicator light was not used by Mr. Switzer and the defendant does notparticularly wish to contest that.” The court accepted the officer’s evidence and there is no reason on this appeal to set that finding aside.

Conclusion [ 5 ] The appeal is allowed. There was no factual dispute at trial, the matter turned on a legal issue alone. Having corrected that error the respondent concedes and I agree that there would be no point in ordering a new trial. Applying the proper legal test I find that the prosecution has proved the offence alleged and there will be a finding of guilt. Appeal and Ruling : February 10, 2017. Justice J.F. Kenkel