R. v. Calleja, 2013 ONCJ 7

COURT FILE No.: Halton 3337542A DATE: 2013·01·14 Citation: R. v. Calleja , 2013 ONCJ 7 ONTARIO COURT OF JUSTICE IN THE MATTER OF an appeal under Subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: IVAN CALLEJA Appellant — AND — HER MAJESTY THE QUEEN Respondent Before Justice L.M. Baldwin Heard on September 7, 2012 and November 27, 2012 Reasons for Judgment released on January 14, 2013 Ms. Jan Stewart ................................................................................................. for the Respondent Mr. G.

Lewin (Paralegal) ...................................................................................... for the Appellant BALDWIN, J.: [ 1 ] The fundamental issue in this appeal is whether the offence of ‘Fail to Yield to Pedestrian’ cited under section 140(1)(

a) of the Highway Traffic Act , is a different offence from ‘Fail to Yield to Pedestrian’ under s. 144(7) of the Highway Traffic Act . [ 2 ] These sections are set out in the Appendix of

Definitions attached to this judgment.

Summary of Facts: [ 3 ] On February 22, 2010, Ivan Calleja received a certificate of offence charging him with ‘Fail to Yield to Pedestrian’ contrary to s. 140(1)(

a) of the Highway Traffic Act ( “HTA” ). [ 4 ] A trial on the merits of the charge was conducted on March 25, 2011, and the Appellant was present and represented by agent Mr. Frank Alfano. [ 5 ] The uncontested trial evidence established that Mr. Ivan Calleja was operating a motor vehicle when he struck Mr. Witold Lukasik, who had the legal right of way as a pedestrian crossing Appleby Line at Fairview Street, in the City of Burlington on the morning of February 22, 2010. [ 6 ] The evidence was that Mr. Lukasik was walking to his usual place of work just before 7:00 a.m.

He was walking from east to west on Appleby Line. He approached the intersection which was controlled by traffic lights. He pushed the button to activate the pedestrian walk sign. He got the green light for the pedestrian to walk. He crossed into the intersection and halfway through he was struck by a car. He was airborne and when he fell he hit the car again before landing on the pavement. He was badly injured and taken to hospital. [ 7 ] Officer Bender received the dispatch call to attend the accident scene at 6:53 a.m.

Fire was on scene attending to the victim who was taken to Joseph Brant Hospital. [ 8 ] Officer Bender completed the required motor vehicle accident report. [ 9 ] Officer Bender described the intersection as follows: “This is a very busy intersection in Burlington, Fairview Street and Appleby Line. Appleby Line has four lanes and has a left hand turning lane, a right hand turning lane on the southbound lane. Appleby runs north and south and Fairview Street runs from east to west. Fairview Street is also four lanes with left turn lanes in the east and west (lanes).

This is directed by traffic lights and it is well lit by street light. The (traffic) lights that day were functioning. There are stopping lines for your vehicle to stop at the stop light and crosswalk lines. There was no snow that I recall on the ground. It was a clear day. It was just breaking into daylight.” (Transcript pp. 18, 19) [ 10 ] The driver of the motor vehicle that struck the pedestrian had pulled over into the right hand lane in the northbound lane of Appleby Line. He was driving a SUV style vehicle. [ 11 ] The car that hit Mr.

Lukasik was turning from Fairview left towards Appleby. [ 12 ] On scene, Mr. Calleja admitted striking the pedestrian to Officer Bender. [ 13 ] No cross-examination of any of the witnesses was conducted and their evidence was unchallenged. Motion for non-suit/Finding of Guilt: [ 14 ] A motion for a non-suit was brought at the conclusion of the prosecution’s case. The motion was denied. [ 15 ] No defence evidence was called. After hearing submissions, a finding of guilt was registered. Appellant’s Position: [ 16 ] The Appellant argued that section 140(1)(

a) specifies that a vehicle must yield the right of way to a pedestrian crossing at a pedestrian crossover . [ 17 ] The evidence from the prosecution witnesses was that the pedestrian had been struck within a pedestrian crosswalk at an intersection controlled by automatic traffic lights and pedestrian control signals. [ 18 ] The Appellant submits that the intersection where this event occurred does not meet the definition of a pedestrian crossover as set out in the HTA and Regulation 615 Sec. 20.1. [ 19 ] Regulation 615 sets out the requirements for road and highway signage. [ 20 ] The various signs for pedestrian crossovers are described in

section 20.1 through to 20.10. [ 21 ] The Appellant submits that the “offence charged” should have been under section 144 (7) of the HTA , which requires drivers to yield the right of way to pedestrians lawfully within a crosswalk . [ 22 ] Mr. Alfano directed the Court and the prosecutor to read Regulation 615

section 20.1 which he submitted describes three signs that are required for a pedestrian crossover to be established. [ 23 ] Mr. Alfanso submitted “There’s no evidence of signs.

All we have are the traffic control signals and a couple of road markings”. (Transcript p. 34, 37) Respondent’s Position: [ 24 ] The Respondent submits that the broad definition of a pedestrian crossover in the HTA subsumes the definition of a pedestrian crosswalk . [ 25 ] The Respondent submits that the learned Justice of the Peace put his mind to this issue in both his rejection of the motion for non-suit and in his final reasons for finding the Appellant guilty. [ 26 ] His Worship stated in his reasons for judgment as follows: “I repeat my previous comments that notwithstanding the subtle, in my view, differences between a pedestrian crossover and crosswalk, that the legislators could not and would not have intended such a difference to allow, as I said, immunity to a motorist who has clear obligations at such an intersection.” (Transcript March 25, 2011 p. 44) [ 27 ] The Respondent submits that the application of a “crossover” would apply to any designated area in which pedestrians are directed to cross, whether that be at an intersection controlled by stop signs, or, at the entrances and exits to commercial properties, or across right turn merging lanes in advance of a signalized intersection.

In other words, at any designated area other than a signalized intersection. (Factum p. 4) Standard of Appellant Review in

Part 1 Certificate Offences: [ 28 ]

Section 138 of the Provincial Offences Act reads as follows:

(1) Powers of court on appeal – Upon an appeal, the court may affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial.

(2) New Trial – Where the court directs a new trial, it shall be held in the Ontario Court of Justice presided over by a justice other than the justice who tried the defendant in the first instance, but the appeal court may, with the consent of the parties to the appeal, direct that

the new trial be held before the justice who tried the defendant in the first instance or before the judge who directs the new trial.

(3) Costs – Upon an appeal, the court may make an order under subsection 60 for the payment of costs incurred on the appeal, and subsection (3) thereof applies to the order. [ 29 ] Pursuant to subsection 34 (1) of the Provincial Offences Act , the court has a discretion at any stage of the proceedings to amend a certificate where it appears that the certificate fails to state or states defectively anything that is essential to charge the offence, does not negative an exception that should be negative, or is in any way defective in form or substance. [ 30 ] It is open to the court to amend a certificate during the course of the trial if the subject matter of the proposed amendment has been disclosed by the evidence. [ 31 ] The scope of the remedial amendment provisions is quite broad. [ 32 ] The court shall consider any evidence taken at trial, the circumstances of the case, whether the defendant has been misled or prejudiced, and whether the proposed amendment can be made without occasioning an injustice having regard to the merits of the case.

The question as to whether or not an amendment should be granted or refused is a question of law. Decision: Substance Trumps Form [ 33 ] The offence that the Appellant was charged with and found guilty of was ‘Fail to Yield to Pedestrian’. The

section number of the HTA provides the ingredients of the offence, but the

section number is not the offence. One can be found guilty of ‘Fail to Yield to Pedestrian’ under either s. 140(1)(

a) or s. 144 (7) of the HTA . [ 34 ] I find that whether the pedestrian has been hit in a crossover or a crosswalk is irrelevant to whether or not the offence of ‘Fail to Yield to Pedestrian’ has been committed. Under both sections the pedestrian is required to be crossing within their legal right-of- way, and the motor vehicle driver must obey the signs/road markings/lights that mark the pedestrian crossing. [ 35 ] In this case, all essential elements of the offence were proven beyond a reasonable doubt. [ 36 ] There was no prejudice to the Appellant in being charged with reference to s. 140(1)(

a) as opposed to s. 144 (7) of the HTA . [ 37 ] The penalties with respect to the fine amounts are identical under both sections. [ 38 ] Furthermore, it was open to the learned Justice of the Peace to amend the certificate at any stage of the proceedings to reflect the more perfectly suited

section of the HTA to s. 144 (7), as this pedestrian was struck down at a lighted intersection. The prosecution did not request such an amendment. There would have been no error in law if such an amendment had been made. (reference R. v. Howse [2012] O.J.

No. 3772 , Judge Pugsley, Ontario Court of Justice) [ 39 ] It would be open to me to amend the certificate at this stage of the proceedings, but I find it unnecessary. [ 40 ] I conclude that the learned Justice of the Peace did not err in denying the motion for non-suit, nor did he err in finding the Appellant guilty. [ 41 ] There has been no denial of justice in this case. [ 42 ] The Appellant’s position that form trumps substance is rejected. [ 43 ] Accordingly this Appeal is dismissed. Released: January 14, 2013 Signed: “Justice L.M. Baldwin” APPENDIX OF

DEFINITIONS “Pedestrian crossover” is defined in s. 1 of the HTA as follows: “pedestrian crossover means any portion of a roadway, designated by by-law of a municipality, at an intersection or elsewhere, distinctly

indicated for pedestrians crossing by signs on the highway and lines or other markings on the surface of the roadway as prescribed by the regulations”. “crosswalk” is defined in s.1 of the HTA as follows: “crosswalk” means, (

a) That part of a highway at an intersection that is included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the roadway, or (

b) any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface. Section 144(7) states that: “When under this

section a driver is permitted to proceed, the driver shall yield the right of way to pedestrians lawfully within a crosswalk. The term “intersection” is defined in s. 144(1): “intersection” includes any portion of a highway indicated by markings on the surface of the roadway as a crossing place for pedestrians”.