Is There a Difference Between a Crosswalk and Crossover?

In Law, Per the Highway Traffic Act a Crosswalk and a Crossover Are Defined Differently. Despite the Technical Differences, Actual Cases For Failing to Yield to a Pedestrian At Either Crosswalk or Crossover Are Treated Very Similarly and With the Same Penalties.

Understanding the Legal Difference Between a Crosswalk and a Crossover Including Duty of Drivers to Yield to Pedestrians

Pedestrians Using Crosswalk Many drivers may be surprised to learn that, in law, there is a legal difference between the definition of a "crosswalk" and the definition of a "pedestrian crossover".  With the differences in definition also come differences in the responsibilities imposed upon drivers when a "crosswalk" or "pedestrian crossover" is being used by a pedestrian.

The Law

The Highway Traffic Act, R.S.O. 1990, c. H.8 provides the legal definition of a "pedestrian crossover" as well as a "crosswalk".  The definition of each is stated as:

Definitions

1 (1) In this Act, ...

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;

pedestrian crossover” means any portion of a roadway distinctly indicated for pedestrian crossing by signs on the highway and lines or other markings on the surface of the roadway as prescribed by the regulations;

As for the duties of a driver regarding required conduct when approaching a "pedestrian crossover" or the duties of persons who are using a pedestrian crossover as well as the duties relating to a "crosswalk", the Highway Traffic Act states:

Pedestrian crossover

Duties of driver

140 (1) When a pedestrian is crossing on the roadway within a pedestrian crossover, the driver of a vehicle approaching the crossover,

(a) shall stop before entering the crossover;

(b) shall not overtake another vehicle already stopped at the crossover; and

(c) shall not proceed into the crossover until the pedestrian is no longer on the roadway.

(2) Repealed

Passing moving vehicles within 30 metres of pedestrian crossover

(3) When a vehicle is approaching a pedestrian crossover and is within 30 metres of it, the driver of any other vehicle approaching from the rear shall not allow the front extremity of his or her vehicle to pass beyond the front extremity of the other vehicle.

Duty of pedestrian

(4) No pedestrian shall leave the curb or other place of safety at a pedestrian crossover and walk, run or move into the path of a vehicle that is so close that it is impracticable for the driver of the vehicle to comply with subsection (1).

Municipal by-laws

(5) No municipal by-law that purports to designate a pedestrian crossover on a highway on which the speed limit is in excess of 60 kilometres per hour is valid.

Riding in pedestrian crossover prohibited

(6) No person shall ride or operate a bicycle across a roadway within a pedestrian crossover.

Offence

(7) Every person who contravenes subsection (1) or (3) is guilty of an offence and on conviction is liable to a fine assessed in accordance with section 144.1.

Regulations

(8) The Minister may make regulations respecting pedestrian crossovers,

(a) providing for the erection of signs on any highway or any type or class of highway and the placing of markings on the roadway;

(b) prescribing the types of signs and markings and the location on the highway and roadway of each type of sign and marking;

(c) prohibiting the use or erection of any sign or type of sign that is not prescribed.

Definitions

(9) In this section,

pedestrian” includes a person in a wheelchair; (“piéton”)

vehicle” includes a street car.

Traffic control signals and pedestrian control signals

144 (1) In this section,

driver” includes an operator of a street car; (“conducteur”)

emergency vehicle” means,

(a) a vehicle while used by a person in the lawful performance of his or her duties as a police officer, on which a siren is continuously sounding and from which intermittent flashes of red light or red and blue light are visible in all directions, or

(b) either of the following vehicles, on which a siren is continuously sounding and from which intermittent flashes of red light are visible in all directions:

(i) a fire department vehicle while proceeding to a fire or responding to, but not while returning from, a fire alarm or other emergency call, or

(ii) an ambulance while responding to an emergency call or being used to transport a patient or injured person in an emergency situation; (“véhicule de secours”)

intersection” includes any portion of a highway indicated by markings on the surface of the roadway as a crossing place for pedestrians; (“intersection”)

pedestrian” includes a person in a wheelchair; (“piéton”)

vehicle” includes a street car. (“véhicule”)

(2), (3) Repealed.

(4) Spent.

Where to stop — intersection

(5) A driver who is directed by a traffic control signal erected at an intersection to stop his or her vehicle shall stop,

(a) at the sign or roadway marking indicating where the stop is to be made;

(b) if there is no sign or marking, immediately before entering the nearest crosswalk; or

(c) if there is no sign, marking or crosswalk, immediately before entering the intersection.

Where to stop — non-intersection

(6) A driver who is directed by a traffic control signal erected at a location other than at an intersection to stop his or her vehicle shall stop,

(a) at the sign or roadway marking indicating where the stop is to be made;

(b) if there is no sign or marking, immediately before entering the nearest crosswalk; or

(c) if there is no sign, marking or crosswalk, not less than five metres before the nearest traffic control signal.

Yielding to pedestrians

(7) When under this section a driver is permitted to proceed, the driver shall yield the right of way to pedestrians lawfully within a crosswalk.

Yielding to traffic

(8) When under this section a driver is permitted to proceed, he or she shall yield the right of way to traffic lawfully using an intersection or, where traffic control signals are erected where a private road or driveway meets a highway, lawfully using the area controlled by the traffic control signals.

Signs

(9) The provisions of this section are subject to any sign, as prescribed by the regulations, forbidding a left turn, right turn, through movement or combination thereof that is posted at an intersection and every driver shall obey every such sign.

Obeying lane lights

(10) Every driver shall obey every traffic control signal that applies to the lane that he or she is in and, for greater certainty, where both a traffic control signal that is not a bicycle traffic control signal and a bicycle traffic control signal apply to the same lane,

(a) a person riding or operating a bicycle in that lane shall obey the bicycle traffic control signal; and

(b) a person driving a vehicle other than a bicycle in that lane shall obey the traffic control signal that is not a bicycle traffic control signal.

Exception

(11) Despite subsection (10), a driver of a road service vehicle in a left-turn lane may proceed through the intersection without turning to the left if the movement can be safely made, there is showing a circular green or green arrow indication for the through traffic movement and the driver,

(a) where the applicable left-turn traffic control signal is showing a circular red indication, first brings the vehicle to a stop; and

(b) where the operation of any other vehicle may be affected, indicates his or her intention to proceed through the intersection without turning to the left by giving a plainly visible signal to the driver or operator of the other vehicle.

Green light

(12) A driver approaching a traffic control signal showing a circular green indication and facing the indication may proceed forward or turn left or right unless otherwise directed.

Flashing green

(13) A driver approaching a traffic control signal showing a circular flashing green indication or a solid or flashing left turn green arrow indication in conjunction with a circular green indication and facing the indication may, despite subsection 141 (5), proceed forward or turn left or right unless otherwise directed.

Green arrow

(14) Every driver approaching a traffic control signal showing one or more green arrow indications only or in combination with a circular red or circular amber indication and facing the indication may proceed only to follow the direction shown by the arrow.

Amber light

(15) Every driver approaching a traffic control signal showing a circular amber indication and facing the indication shall stop his or her vehicle if he or she can do so safely, otherwise he or she may proceed with caution.

Amber arrow

(16) Every driver approaching a traffic control signal showing an amber arrow indication only or in combination with another indication and facing the indication shall stop his or her vehicle if he or she can do so safely, otherwise he or she may proceed with caution to follow the direction shown by the amber arrow indication.

Flashing amber

(17) Every driver approaching a traffic control signal showing a flashing circular amber indication and facing the indication may proceed with caution.

Red light

(18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown.

Certificate of offence — owner — red light camera evidence

(18.1) A person who issues a certificate of offence and offence notice under subsection 3 (2) of the Provincial Offences Act for a contravention of subsection (18) shall, despite that Act and the regulations under that Act, specify this subsection, instead of subsection (18), as the provision that was contravened, if,

(a) the person who issues the certificate of offence and offence notice believes that the offence was committed on the basis of evidence obtained through the use of a red light camera system; and

(b) the defendant is being charged as the owner of the vehicle.

Certificate of offence — driver — red light camera evidence

(18.2) A person who issues a certificate of offence and offence notice under subsection 3 (2) of the Provincial Offences Act for a contravention of subsection (18) shall, despite that Act and the regulations under that Act, specify this subsection, instead of subsection (18), as the provision that was contravened, if,

(a) the person who issues the certificate of offence and offence notice believes that the offence was committed on the basis of evidence obtained through the use of a red light camera system; and

(b) the defendant is being charged as the driver of the vehicle.

Deemed to specify subs. (18)

(18.3) A certificate of offence or offence notice that specifies subsection (18.1) or (18.2) as the provision that was contravened shall be deemed to specify that subsection (18) was contravened.

No dismissal

(18.4) No charge shall be dismissed, and no certificate of offence shall be quashed, on the basis that a certificate of offence or offence notice specifies subsection (18.1) or (18.2), instead of subsection (18), as the provision that was contravened.

No amendment

(18.5) A certificate of offence that specifies subsection (18), (18.1) or (18.2) as the provision that was contravened shall not be amended to specify another of those subsections without the consent of the prosecutor and the defendant.

Purpose of subss. (18.1) to (18.5)

(18.6) The purpose of subsections (18.1) to (18.5) is to facilitate the use of computer systems that are maintained by the Government of Ontario for recording and processing information related to provincial offences and that depend, in order to make certain distinctions, on different provision numbers being specified in certificates of offences.

Exception — turn

(19) Despite subsection (18) and subject to subsection (14), a driver, after stopping his or her vehicle and yielding the right of way to traffic lawfully approaching so closely that to proceed would constitute an immediate hazard, may,

(a) turn to the right; or

(b) turn to the left from a one-way street into a one-way street,

without a green indication being shown.

Exception — white vertical bar indication

(19.1) Despite subsection (18), a driver operating a bus or street car on a scheduled transit authority route approaching a traffic control signal showing a white vertical bar indication may, with caution, proceed forward or turn right or left.

Exception — emergency vehicle

(20) Despite subsection (18), a driver of an emergency vehicle, after stopping the vehicle, may proceed without a green indication being shown if it is safe to do so.

Stopping at flashing red light

(21) Every driver approaching a traffic control signal and facing a flashing circular red indication shall stop his or her vehicle, shall yield the right of way to traffic approaching so closely that to proceed would constitute an immediate hazard and, having so yielded the right of way, may proceed.

Pedestrian crossing

(22) Where portions of a roadway are marked for pedestrian use, no pedestrian shall cross the roadway except within a portion so marked.

Pedestrian — green light

(23) Subject to subsections (24) and (27), a pedestrian approaching a traffic control signal showing a circular green indication or a straight-ahead green arrow indication and facing the indication may cross the roadway.

Pedestrian — stopping at flashing green light

(24) No pedestrian approaching a traffic control signal and facing a flashing circular green indication or a solid or a flashing left turn arrow indication in conjunction with a circular green indication shall enter the roadway.

Pedestrian — stopping at red or amber light

(25) No pedestrian approaching a traffic control signal and facing a red or amber indication shall enter the roadway.

Pedestrian control signals — walk

(26) Where pedestrian control signals are installed and show a “walk” indication, every pedestrian facing the indication may cross the roadway in the direction of the indication despite subsections (24) and (25).

Pedestrian control signals — don’t walk

(27) No pedestrian approaching pedestrian control signals and facing a solid or flashing “don’t walk” indication shall enter the roadway.

Pedestrian right of way

(28) Every pedestrian who lawfully enters a roadway in order to cross may continue the crossing as quickly as reasonably possible despite a change in the indication he or she is facing and, for purposes of the crossing, has the right of way over vehicles.

Riding in crosswalks prohibited

(29) No person shall ride or operate a bicycle across a roadway within a crosswalk at an intersection or at a location, other than an intersection, which is controlled by a traffic control signal system.

Symbols

(30) The “walk” or “don’t walk” pedestrian control indications referred to in this section may be shown as symbols as prescribed by the regulations.

A key requirement for conduct required of a driver at a crossover, per section 140(1)(c) of the Highway Traffic Act, is the mandate to advance only after pedestrians fully finish crossing the roadway; however, at a crosswalk, unless otherwise governed by a crossing guard, a driver may proceed when pedestrians are clear of the vehicle but prior to fully crossing the roadway.

Available Defence Strategies

Although the definition of a "crosswalk" and the definition of a "pedestrian crossover" are somewhat similar, there are considerable differences; however, the similar definitions can be cause for confusion, even confusion by a police officer.  Interestingly, whether a police officer is confused and lays a charge under seemingly the wrong section appears moot per the case of R. v. Calleja, 2013 ONCJ 7 wherein it was argued that a pedestrian was charged for failing to yield to a pedestrian at a crossover per section 140 of the Highway Traffic Act; however, the incident had actually occurred at a crosswalk governed by section 144 of the Highway Traffic Act and therefore the driver should be without guilt for the charge under section 140.  Upon review, the court deemed that whereas the potential penalties were the same and that the wrongful conduct was the same, a charge laid under the incorrect section was irrelevant.  Specifically, the court stated:

[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.

In the further interesting case of Durham (Regional Municipality) v. Cottrell, 2013 ONCJ 638, which referred to and followed the Calleja decision, a conviction was registered despite that a pedestrian crossing failed to meet the express Highway Traffic Act definition of either a "crosswalk" or "pedestrian crossover".  Despite lacking the requisite lights, signals, or signs, that define either a "pedestrian crossover" or "crosswalk", in the Cottrell case, the court applied section 144(7) of the Highway Traffic Act and deemed that Mr. Cottrell failed to yield to a pedestrian at an uncontrolled crosswalk.  Specifically the court stated:

Crossovers defined

39. S. 140(1)(a) reads: Pedestrian crossover, duties of driver – subject to subsection (2) when a pedestrian or a person in a wheelchair crossing a roadway within a pedestrian crossover,

(a) is upon the half of the roadway which a vehicle or street car is travelling; or

(b) is upon half of the roadway and is approaching the other half of the roadway on which a vehicle or street car is approaching so closely to the pedestrian crossover as to endanger him or her,

the driver of the vehicle or street car shall yield the right of way to the pedestrian or a person in a wheelchair by slowing down or stopping if necessary.

40. The 2012 Annotated Ontario Highway Traffic Act on page 3 of section one, defines ‘pedestrian crossover’ as being “any portion of a roadway, designated by bylaw of a municipality at an intersection or elsewhere, distinctly indicated for pedestrian crossing by signs on the highway and lines or other markings on the surface of the roadway as prescribed by the regulations.

41. The Court turns to the Ontario Traffic Management (OTM) Book 15 released in December of 2010, to assist it in understanding the definitions contained in the Highway Traffic Act as they relate to crosswalks, pedestrian crossovers and traffic islands in order to make a more fully informed decision.

42. OTM Book 15 states, “The Ontario Highway Traffic Act defines the rules of the road, including conditions under which pedestrians can cross a road and walk within the roadway. The Highway Traffic Act identifies the responsibilities and rights of pedestrians and drivers for different forms of pedestrian crossings.

43. The Highway Traffic Act recognizes two distinct categories of pedestrian crossing which OTM Book 15 further defines as:

a.  controlled crossings where vehicles are required to stop or yield to traffic legally in the intersection (the definition of traffic includes pedestrians), or

b.  an uncontrolled crossing where pedestrians must wait for safe gaps in traffic before crossing a roadway. An uncontrolled crossing does not have any traffic control measures to provide a dedicated pedestrian right-of-way.

44. The OTM Book 15 states controlled pedestrian crossings include vehicle control by way of traffic signals, intersection pedestrian signals, mid-block pedestrian signals, pedestrian crossovers, ‘STOP’ or ‘YIELD’ or ‘SCHOOL CROSSING’ signs.

45. The OTM Book 15 notes, “although crossing at an uncontrolled crossing is not illegal, pedestrians do not have the right-of-way. Both forms of crossing (controlled or uncontrolled) may be appropriate given governing conditions and measured or anticipated pedestrian demand.

46. Pedestrians are responsible according to the Highway Traffic Act to ensure any crossing of a highway -- in any location -- may be made safely.

47. The Highway Traffic Act s. 144 (28) states, “Every pedestrian who lawfully enters a roadway in order to cross may continue the crossing as quickly as reasonably possible despite a change in the indication he or she is facing and, for purposes of the crossing, has the right of way over vehicles.

48. S. 140(1) of the Highway Traffic Act defines pedestrian crossovers being “any portion of a road way designated by by-law of a municipality, at an intersection or elsewhere, distinctly indicated for pedestrian crossing by signs on the highway and lines or other markings on the surface of the roadway as prescribed by the Highway Traffic Act regulations.

49. The Court has evidence by way of exhibit one that this portion of the roadway has been designated by municipal bylaw.

50. Pedestrian crossovers according to the OTM Book 15 “are distinctly defined by the prescribed use of regulatory and warning signs, flashing amber beacons and pavement markings, thus providing pedestrians with protected crossing opportunities by requiring motorists to yield to pedestrians within the crosswalk. The presence of a pedestrian in the crossing or approaching their half of the road is what triggers the motorist’s requirement to yield.

51. Legal pedestrian crossovers require either a ground-mounted or overhead illuminated double-sided sign indicating the presence of a pedestrian crossover to all road users to alert drivers to the presence of pedestrian crossover and to indicate to them the exact crossover location. Pedestrian actuation of the flashing amber beacons is by push button.

Traffic Islands defined

52.  Channelized right-turn lanes, according to the OTM Book 15, increase intersection efficiency, reduce unnecessary delay, and reduce idling emissions in high traffic areas by use of a traffic island which also provides a pedestrian “refuge area” in addition to providing a place to install traffic control signals. Such is the case in Durham (Regional Municipality) v. Cottrell.

53. The OTM Book 15 speaks of “free flow” pedestrian crossings and areas which are ‘signed’ in advance of a pedestrian crossing where drivers are required to stop.

54. Pedestrian crossings at ‘free flow’ locations are required to yield the right of way to a motorist before crossing to the island. ‘Free flow’ locations do not have crosswalk markings on the road. A ‘WAIT FOR GAP’ sign should be installed if pedestrians frequently cross at a location without waiting for the appropriate gaps and/or where drivers may not expect pedestrians.

55. There is no evidence of a ‘WAIT FOR GAP’ sign required for a ‘free flow’ pedestrian crossing though there is evidence from two of four witnesses in Regional Municipality of Durham v. Cottrell who testified there were crosswalk markings on the road between the southwest corner of Kingston Road at the Brock Road traffic island at the time of the collision. Therefore the Court cannot logically conclude this location is a ‘free flow’ pedestrian crossing.

56. The OTM Book 15 says drivers in right-turn channels are required to yield the right of way to pedestrians where there is a ‘YIELD’ or ‘STOP’ sign posted in advance of a crosswalk. There is no evidence before the Court of a ‘YIELD’ or ‘STOP’ sign posted in advance of the crosswalk between the southwest corners of Kingston Road at the southbound Brock Road traffic island.

57. The OTM Book 15 says right turn channels may be integrated as part of a signalized intersection or the yield control may be oriented requiring right-turning vehicles to yield to pedestrians in addition to cross-street traffic. Crosswalk markings are appropriate in these locations. It would appear from the evidence that the location in Durham (Regional Municipality) v. Cottrell meets this definition.

58.  The OTM Book 15 says ‘YIELD’ signs are to be installed by municipal by-law in advance of the crossing point at a right turn channel involving a traffic island to create a ‘controlled crossing’ and it is then considered appropriate to mark the crosswalk between the boulevard and the island.

59. There is no evidence before the Court of a ‘YIELD’ sign posted in advance of the pedestrian crosswalk at this location and therefore the Court cannot conclude this to be a right turn channel ‘controlled’ pedestrian crossing.

60. The OTM Book 15 says crosswalk alignments should be straight and unobstructed. Wherever possible, crosswalks and crosswalk markings should be within the most direct route from sidewalk to sidewalk. This appears to be the case in the Durham (Regional Municipality) v. Cottrell.

Court’s findings

61. The Court concurs with Mr. Sturch that the evidence does not fully fall within the definition of pedestrian crossover – given the lack of required signage -- in order to secure a conviction for failing to yield to a pedestrian contrary to s. 140(1)(a) of the Ontario Highway Traffic Act.

62. Having said that Mr. Sturch made his client aware that it is within the Court’s purview under s. 55 of the Provincial Offences Act to arrive at a finding of guilt to a lesser but included charge if there is evidence to support such a decision.

Fail to yield s. 138(1)

63. The Court considered the charge of fail to yield as per S. 138(1) of the Highway Traffic Act which says “the driver or operator of a vehicle or street car approaching a yield right-of-way sign shall slow down to a speed reasonable for the existing conditions or shall stop if necessary as provided in clause 136(1)(a) and shall yield the right of way to traffic in the intersection or approaching on the intersecting highway so closely that it constitutes an immediate hazard and having so yielded may proceed with caution. R.S.O. 1990, c. H.8, s. 138 (1).

64. The Highway Traffic Act definition of ‘traffic’ includes pedestrians.

65. Const. Roy’s evidence is that there is a ‘YIELD’ sign on the channelized right turn lane off Kingston Road where it transitions onto Brock Road. The Court also has Mr. Cottrell’s evidence that he was travelling at about 40 km/h at the time, and that being momentarily distracted, he did not see Mr. Gazarek as he crossed the road.

66. It is not open to the Court to find Mr. Cottrell guilty of the lesser but included offence of failing to yield under s. 136(1)(a) given there is no evidence of a ‘YIELD’ sign in advance of the pedestrian crosswalk at this location.

Crosswalk defined

67. The Court also considered the offence of driver fail to yield to pedestrian in crosswalk contrary to s. 144(7) of the Highway Traffic Act as per R. v. Calleja (supra) which speaks to substance over form.

68. The Highway Traffic Act section 1 (1), defines a “crosswalk” as 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.

69. Pedestrian crosswalk markings, according to OTM Book 15, define and delineate the path for pedestrians to cross the roadway and serve to reduce the potential for conflicts with motor vehicles.

70. To more fully understand the legislation concerning crosswalks the Court turns to OTM Book 11 released in March 2000 which focuses on markings and delineation.

71. OTM Book 11 explains crosswalk markings define and delineate the path for pedestrians to cross the roadway. Crosswalks should be marked at all intersections where there is substantial conflict between vehicle and pedestrian movements. It is open to the Court to find this appears to be the case in Durham (Regional Municipality) v. Cottrell.

72. OTM Book 11 says obstacles such as curbs and raised islands should remain outside the crosswalk lines in consideration of persons with walking impairments and persons using wheelchairs, walkers, and strollers. The traveled part of the crosswalk must be aligned with sidewalk ramps and curb cuts where these are provided at one or both sides of the roadway. It is open to the Court to find this appears to be the case in Durham (Regional Municipality) v. Cottrell.

73. OTM Book 11 says crosswalks in urban areas must be marked at intersections where there is substantial conflict between vehicular and pedestrian movements. Pedestrian crossings may be marked at non-intersection points where substantial pedestrian movements occur or where a safe crossing point would not otherwise be obvious, particularly to children. It is open to the Court to find this appears to be the case in Durham (Regional Municipality) v. Cottrell based on evidence the Court finds credible and reliable following an R. v. W.(D.) (supra) analysis.

74. OTM Book 11 says consideration should be given to installing crosswalks at ‘uncontrolled’ locations where vehicles would not otherwise stop. The presence of a marked pedestrian crossing may create a false sense of confidence on the part of pedestrians, particularly children, who may enter the crosswalk expecting that approaching drivers will see them and stop. It is open to the Court to find Mr. Gazarek, who had the right of way in a marked pedestrian crossing, had just such a false sense of security.

75. OTM Book 11 says a discrepancy may exist between pedestrians’ expectations and the expectations of approaching drivers who may not expect to find a pedestrian crossing at an ‘uncontrolled location’.

76. OTM Book 11 says if a crosswalk at an uncontrolled location is deemed necessary, its safety may be enhanced by the addition of advance markings, warning signs and illumination.

77. The operative word is safety ‘may’ be enhanced by the addition of advanced markings, warning signs or illumination. The Court finds while there is no evidence before it of advance markings, warning signs or illuminations marking the crosswalk between the traffic island and the southwest corner of Kingston Road at Brock Road there would seem to be no requirement to do so according to OTM Book 11.

78. The Court believes advanced markings, warning signs or illumination would be considered ‘best practice’ for this ‘uncontrolled’ pedestrian crossing.

79. The description of this area, bolstered by the Court’s finding that there was a pedestrian crossing at this ‘uncontrolled’ crosswalk meets:

a.  part (a) of the definition of a crosswalk in as much as there are connections with the lateral lines of the sidewalk emanating from Kingston Road and

b.  part (b) in that it was a portion of a roadway at an intersection or elsewhere that was distinctly indicated for pedestrian crossing by lines or other markings on the surface.

80. The use of the word ‘or’ in section (b) of the definition would lead the Court to believe the legislation does not also require the area to be marked by advanced markings, warning signs or illumination. This is confirmed by the wording contained in the OTM Book 11.

81. Had it been the intention legislators to do so the definition would have used the word ‘and’ rather than ‘or’ in part (b) to state, “…distinctly indicated for pedestrian crossing by signs ‘and’ by lines ‘and’ other markings on the road.”

82. The Highway Traffic Act is silent on ‘controlled’ and ‘uncontrolled’ pedestrian crossings and OTM Book 15 which the Court turns to for clarification cites ‘uncontrolled’ crossings as having white pedestrian crossing lines marked on the pavement but without pedestrian crossing signs or signals.

Court’s decision on uncontrolled crosswalk

83. The Court concludes there were white painted ‘pedestrian crossing’ lines on the roadway between the southwest corner of Brock and Kingston Roads and the traffic island at this location for several reasons.

84. Common sense would dictate that this is the only safe place for pedestrians to reach the protection of the pedestrian crossing lights and painted lines regulating both Kingston and Brock Roads. As per R. v. Calleja (supra), this Court agrees substance should trump form.

85. The Court, bound by stare decis, must follow the higher court’s lead in R. v. Calleja (supra) in determining if a pedestrian had the legal right of way, and if so, determining if the motor vehicle driver has obeyed signs, road markings and/or lights that mark a pedestrian crossing, whether a crossover or crosswalk.

86. The Court determines on the basis of the evidence it finds credible and reliable that Mr. Gazarek was a pedestrian at the place, time and date in question, and that he believed he had the right-of-way as he was crossing in a location pedestrians were expected to cross if they were to reach the safety of the traffic island in order to continue crossing either Brock Road or Kingston Road in an ‘uncontrolled’ pedestrian crossing. According to s. 144 (28) of the Highway Traffic Act, Mr. Gazarek had lawfully entered the roadway in order to cross and therefore had the right of way over vehicles.

87. It is equally clear Mr. Cottrell as a motorist was distracted momentarily and did not see Mr. Gazarek in the pedestrian crossing until it was too late.

88. The Court’s conclusion, based on its findings there was a white-painted pedestrian crosswalk on the road in this location -- albeit without pedestrian crossing signs –at the said date and time, therefore meets the Ontario Traffic Manual description of an ‘uncontrolled’ crosswalk.

89. The Court’s conclusion is bolstered by Mr. Gazarek’s evidence of a ‘curb cut’ at the location which would allow for wheelchair access across the channelized right hand turn lane from Kingston Road onto Brock Road onto the traffic island.

90. It stands to reason that this is the area in which the Regional Municipality of Durham on behalf of the City of Pickering intended pedestrians to cross to reach a ‘controlled’ pedestrian crossing involving white painted lines on the road and signalized pedestrian and vehicular traffic lights.

91. It is open to the Court to find on the basis of the evidence it determines credible and reliable following an R. v. W.(D.) (supra) analysis to find this was an ‘uncontrolled’ crosswalk as defined by OTM Book 15, given the curb cut and continuing lateral lines from the southwest curb of Kingston Road and the white pedestrian crossing lines painted on the road between the southwest corner of Kingston Road and the traffic island.

92. It is open to the Court, given these elements, to find there is a crosswalk at this location within the meaning of the Highway Traffic Act and it is open to the Court to find the prosecution has established a prima facie case on the offence of failing to stop for a pedestrian at a crosswalk contrary to s. 144 (7) of the Highway Traffic Act.

As above, it appears that arguing a technicality, such as being charged for failing to yield at a crosswalk when a driver was actually at a crossover, or vice versa, will be insufficient to avoid a guilty finding, it becomes necessary to defend either charge, being a section 140 or section 144, on the basis that the driver was acting with due diligence and driving in a reasonable manner (eg. the pedestrian ran out suddenly without warning), the driver was officially induced into making an error (eg. an improper sign), or there was some reasonable mistake of fact.

Summary Comment

Technically, there is a difference between a crosswalk and a pedestrian crossover.  Where a police officer lays a charge of failing to yield to a pedestrian and does so with reference to the incorrect section of the Highway Traffic Act, meaning laying a charge of failing to yield at a crosswalk when the driver was actually at a crossover, the courts appear to disregard the technicality and will simply amend the charge and apply the factual circumstances to the applicable section of the Highway Traffic Act.  Accordingly, defending a charge of failing to yield at a crosswalk or a crossover requires a legal strategy beyond just arguing that the police officer made a mistake with the relevant section number of the Highway Traffic Act.

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