R v Lorenzo

R. v. Lorenzo

2002 CarswellOnt 5812, [2002] O.J. No. 4850
Ontario Court of Justice — Quon J.P. | December 10, 2002

Background

Armulfo Lorenzo was driving westbound on Eglinton Avenue West in Toronto on January 1, 2002, when his light brown Chevrolet Cavalier struck pedestrian Anton Alpio in a crosswalk. Alpio testified he had a green walk signal and was crossing between the white lines when Lorenzo's vehicle hit him, causing him to roll over the car and suffer injuries to his knee and elbow. However, witness Robert Bavmanber — who was stopped in the left turn lane — testified that the pedestrian control signals were flashing "don't walk" when he saw Alpio run into the intersection.

Lorenzo was charged with failing to yield to a pedestrian under section 140(1)(a) of the Highway Traffic Act. But after the prosecution closed its case, they realized they had a problem: section 140(1)(a) applies to "pedestrian crossovers" (uncontrolled crossings), while the accident happened at a signalized intersection with traffic lights and pedestrian control signals — which falls under section 144(7) instead.

Issues

1. Can the prosecution amend the certificate to change from section 140(1)(a) to section 144(7) without prejudicing the defendant's defence?
2. Would allowing the amendment cause an injustice when considering the merits of the case?

The Amendment Test Under Section 34

Under section 34 of the Provincial Offences Act, courts can amend certificates during trial if the evidence supports the proposed amendment. But there's a two-part test: first, has the defendant been misled or prejudiced in their defence? Second, would the amendment cause injustice considering the merits?

Justice Quon found Lorenzo wasn't misled because both sections involve "failing to yield to a pedestrian" — the core substance was identical. Lorenzo had just struck a pedestrian and received a ticket for failing to yield; no reasonable person would be confused about what they were charged with, regardless of the specific section number. The court noted that the Provincial Offences Act emphasizes "substance over form" and includes a strong bias toward allowing amendments.

More importantly, section 144(7) actually created a higher burden for the prosecution than section 140(1)(a). Under section 144(7), the prosecution had to prove the traffic signals were functioning properly, what they were displaying when Alpio entered the crosswalk, and that the pedestrian was "lawfully" within the crosswalk. Given that witness Bavmanber contradicted Alpio about whether the walk signal was on, this contradiction actually helped Lorenzo's defence.

Key Takeaway

Wrong section numbers on certificates can usually be fixed if the core offence described is the same and the evidence supports the amendment.

The Provincial Offences Act strongly favors substance over technicalities. However, if an amendment would make the prosecution's case easier or create genuine prejudice to your defence strategy, you have grounds to oppose it.