Failure to Stop at Red Light Contrary to Section 144 of the Highway Traffic ActPage last modified: January 28 2022
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How Can a Traffic Ticket for Failing to Stop at a Red Light Be Defended?
Defending a Failure to Stop at a Red Light Charge Requires a Defence Strategy Based Upon a Reasonable Doubt That The Driver Failed to Stop, or that the Driver Was the Driver, or That the Light Was Red, Among Other Things.
Understanding the Charge of Failing to Properly Stop At a Red Traffic Light Including Potential Penalties
Failing to properly stop at a red light is a common charge that can raise legal argument as to whether a proper stop did actually occur, and thus whether the driver is guilty, or otherwise. When required, a proper stop requires coming to a complete stop in the proper location. Accordingly, when charged with failure to stop at a red light, the complete evidence and the context of the charge requires detailed review. For example, does the charge allege a failure to come to a complete stop or does the charge allege a failure to stop at the legally required location? The defence strategy when approaching the case may vary depending on the nature of the allegations being made.
The offence of failing to stop at a red light, including failure to stop at the proper location, is prescribed within section 144(18) and section 144(5) of the Highway Traffic Act, R.S.O. 1990, c. H.8 where it is stated:
144 (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.
144 (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.
The requirement to read section 144(18) and 144(5) in conjunction was stated within the case of R. v. Sandhu, 2009 ONCJ 77 while citing the earlier case of R. v. Fanelli,  O.J. No. 5641, whereas the Sandhu case stated:
 In his decision in the case of Regina v. Fanelli,  O.J. No. 5641 (Ont. C.J.), Smith J. concluded that “the duty to stop for a red light under s. 144(18) is to be read along with the other provisions of the legislative scheme and in particular along with or conjunctively with s.144(5) which tells the motorist where to stop in that situation”.
Accordingly, per Sandhu and Fanelli, the offence of failing to properly stop for a red light at an intersection involves the elements in both subsections.
Duties of Driver
When Approaching a Red Light at An Intersection
As above, any driver approaching a red light at an intersection must bring the vehicle being operated to a complete stop and must do so at the prescribed location. This duty to come to a complete stop and do so properly is known in law as an absolutely liability offence. As an absolute liability offence, where the failure to complete a proper stop is proven beyond a reasonable doubt, a driver is unable to argue a lack of fault for failing to stop. Essentially, if it is proven that the driver failed to properly stop, then the driver is unable to argue any reason for the failure to stop for a red light.
Identity of Driver
In some circumstances, a person may be accused of failing to stop for a red light, or other motor vehicle charge, and the person denies such on the basis of someone else being the driver. It is possible that a reasonable doubt may be established that the person charged is actually the person who committed the offence. For example, it is possible that the person charged was being impersonated by the person who actually committed the offence. In this circumstance, where a police officer, or other person, is identifying the person charged as the offender, credible alibi witness evidence may be required as support to such an argument.
Proof of Colour of Light
The Prosecution has a burden of proving that the traffic light facing the accused was indeed red. This proof may come in the way of credible evidence from a witness, such as a police officer who directly observed the failure to stop, or another person. Interesting, the observation must be a direct observation of the light rather than a speculative presumption. For example, it is insufficient for 'proof beyond a reasonable doubt' for a southbound driver as a witness providing testimony evidence on behalf of the prosecution to submit that because the southbound light was red the northbound light was also red. This requirement was established in the appeal case of R. v. Wu,  O.J. No. 5361 wherein it was said:
2. You cannot take judicial notice of the fact that when an east/west traffic light is green that the north/south traffic light at the same intersection would be red. That is something that would require some evidence. Even if the officer did not observe how the lights were functioning that particular day at the time of his attendance, or even if he had never been to that particular intersection, the threshold could have been crossed by him simply putting on record how these kinds of traffic lights are supposed to function. The operation of mechanical devices has been held in other cases to be something that judicial notice can not be taken of.
However, despite the above, it is possible for the prosecution to circumstantially prove that a driver failed to stop for a red light when evidence that the traffic light system was functioning properly is combined with the presumptive evidence. Although Justice Flaherty stated in the Wu case that evidence that the light was red is required, and it may at first appear that Justice Flaherty was implying that witness testimony of a direct observation was required, such was later clarified by Justice Flaherty in the case of R. v. Newton,  O.J. No. 5360 where it was said that an inference may be taken when the circumstantial evidence that opposing lights (such as southbound and northbound) would be simultaneously red when such evidence is supported by further evidence that the traffic lights were functioning properly. In this regard, the case of R. v. Maciata, 2008 ONCJ 503, while citing Newton stated:
 Flaherty, J., in R. v. Wu  O.J. No. 536, stated:
“You cannot take judicial notice of the fact that when an east/west traffic light is green that the north/south traffic light at the same intersection would be red. That is something that would require some evidence”.
 He came to the same conclusion in R. v. Newton  O.J. No. 5360, but clarified that reasonable inferences could be appropriately drawn from evidence of normal function.
 While those decisions are instructive, they are not determinative of the issue here. The facts therein are distinguishable from the case at bar where both parties were travelling in opposite but parallel directions. Both of those cases involved accidents at intersections involving two parties travelling at cross directions.
 Inferences might more reasonably be drawn from circumstantial evidence respecting traffic lights operating in one directional axis.
 In the case at bar the justice of the peace framed his finding that the appellant entered the intersection on a red light as a “reasonable assumption” based on the evidence of the investigating officer of proper functioning of the traffic signals. That is an unfortunate and misleading turn of phrase as it would be an error in law to make findings of fact based on assumptions rather than evidence.
 What is reasonable in the instant case is for the justice of the peace to have inferred from circumstantial evidence that the appellant entered the intersection on a red light and struck the motorcyclist as he completed his turn. Such an inference is founded in the evidence that was before the justice of the peace.
Accordingly, it appears that more than just presumption that a light was red is required; however, the 'more' can be supplemental circumstantial evidence rather than testimony from a witness that directly observed the light as red. What the 'more' evidence required in any given circumstance would be is unknown and subject to each case; and as such, the final answer in any actual case will only be fully known when the case is done. Of course, experienced legal professionals, such as KLP Paralegal Services can provide guidance and insight on likely expectations.
Credibility of Witnesses
As an offence that is often based on witness observations, credibility of the witness can, and often does, come into play. As expected, the observations of witnesses may differ. Sometimes testimony evidence from witnesses involves contradictory statements such as testimony from a police officer stating that a driver failed to properly stop and testimony from the driver stating that a proper stop did occur. Other contradictory statements could occur where a police officer states a driver went through a red light and the driver states that the light was yellow. This later situation occurred in the Sandhu case cited above. Accordingly, the Judge embarked on a test of credibility using criteria established in Supreme Court case of R. v. W.(D.),  1 S.C.R. 742. In rendering reasons for the case decision, it was said:
 This is a case where the issue of credibility is important. Accordingly, I must undertake an assessment of the credibility of the witnesses in this proceeding.
 When I embark on such an assessment, I must remind myself that the concept of reasonable doubt applies to the assessment. Furthermore, I must instruct myself that the determination of the defendant’s guilt must not be based on a simple credibility contest between the prosecution and defence witnesses. This proposition of law was established by the Supreme Court of Canada in the case of Regina v. W.(D.) 1991 CanLII 93 (SCC),  1 S.C.R. 742 (S.C.C.). In said decision, commencing at paragraph 27 therein, Cory J. explained how credibility is to be assessed as follows:
In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering his evidence in the context of the evidence as a whole. …
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First: if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.
 In its decision in the case of Regina v. Hull, 2006 CanLII 26572 (ON CA),  O.J. No. 3177 (Ont. C.A.), the Ontario Court of Appeal, made the following comments pertaining to the application of the principles enunciated in R. v. W.(D.) supra., as follows:
W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier prefers the evidence of the Crown witness to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused’s testimony in light of the whole evidence including the testimony of the complainant and in doing so comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
 There is, in my view, no question that the testimony of Constable Urie establishes all of the elements of the actus reus of the subject offence, on a prima facie basis. In order to determine whether the charge has been proven against the defendant beyond a reasonable doubt, I must apply the W.(D.) principles and assess the defendant’s exculpatory evidence in the context of the totality of the evidence. In doing so, I must avoid reaching a determination that the requisite standard of proof has been met on the basis of a preference of the prosecution evidence over that of the defendant.
 In my view, during his testimony, the defendant presented his version of the events pertaining to the subject offence in a clear and unequivocal manner. His testimony was both detailed and internally consistent. Furthermore, the strength of his account of the relevant circumstances was not significantly diminished as a result of the prosecutor’s extensive cross-examination. His explanation that he increased his speed so as to enter the subject intersection while facing a yellow light is, in my view, plausible. Throughout the course of his testimony he steadfastly maintained that he not only entered, but also exited the intersection on a yellow light.
 On the other hand, Constable Urie was equally steadfast in his position that the subject traffic light showed a solid red indication at the time that the defendant’s vehicle crossed over the stop line on the west side of the subject intersection. He stated, however, that he was unable to advise as to the distance of the defendant’s vehicle west of the said stop line at the moment when the subject traffic light changed from amber to red. In fact, he explained that at that time, he was “focusing” on when the said light was “going to turn red”. Furthermore, he acknowledged that the subject traffic control lights were located to the left of his position on Waterdown Road, on the east side of the subject intersection.
 In considering Constable Urie’s testimony, I am unable to understand how he was able to state with certainty, that the defendant’s vehicle crossed the stop line bordering the west side of the subject intersection, against a red traffic control signal. It would appear that the officer’s observations with respect to the vehicle’s position relative to the said stop line were made in a matter of one or two seconds, at a time when his attention was drawn to the traffic lights located to his left, rather than on the location of the defendant’s vehicle approaching the subject intersection from his right and at a time when the intersection was illuminated by means of artificial lighting.
 Accordingly, when I consider the defendant’s exculpatory evidence that he entered the subject intersection while facing a yellow light, in the context of Constable Urie’s testimony, I find that I am left in a state of reasonable doubt as to whether the subject traffic light showed a red indication at the moment when the defendant entered the intersection by crossing the westerly stop line. Applying the second prong of the W.(D.) principles, I find that I am left in a state of reasonable doubt as to the defendant’s guilt in respect of the subject offence.
As above, a failing to stop at red light charge is an absolute liability offence; and accordingly, if it is proven beyond a reasonable doubt that the driver accused failed to stop then the driver is unable to use a defence strategy that tries to explain why the driver failed to stop.
The charge may be beaten by raising reasonable doubt that the allegation is inaccurate by, among other things:
- Raising a reasonable doubt that the driver charged failed to stop and perhaps did properly stop;
- Raising a reasonable doubt that the traffic light red at the time the driver failed to stop; or
- Raising a reasonable doubt that the driver charged is actually the person who failed to stop.
Penalties If Convicted
If a driver is convicted of failing to properly stop at a red light, the penalties include a $260 fine plus victim surcharge and costs for a $325 total (more if the offence was committed within an area marked as a community safety zone). Additionally, three demerit points will be accumulated by the driver and applied to the licence of the driver by the Ministry of Transportation. Lastly, adverse affects upon the insurance rates for the driver may also apply.
A traffic ticket for failing to stop at a red light can be an expensive affair with significant fines and affects upon insurance rates as well as an accumulation of three driving record demerit points.
Defending a failing to stop at a red light traffic ticket requires skilled legal agility whereas the charge itself is known as an absolute liability offence; and accordingly, the reason for failing to stop is no excuse. As such, to successfully beat the charge a reasonable doubt that the driver committed the offence is necessary.