The Supreme Court of Nova Scotia today published a decision by Justice Arthur W.D. Pickup that rejects an appeal by Halifax resident Najibullah Uzbak. Uzbak argued that he was improperly convicted of endangering a pedestrian in the crosswalk on Nantucket Avenue, just up the hill from the intersection with Wyse Road, near the Bridge Terminal.
The incident occurred on May 26, 2014. Uzbak had been convicted of violated section 93(2)(f) of the Motor Vehicle Act, which reads:
The drivers of vehicles, pedestrians, and all other traffic approaching or at an intersection or on a part of the highway controlled by any of the traffic signals mentioned in subsection (1) shall act in obedience to the traffic signals in accordance with the following instructions:
(f) flashing red light — all traffic facing this signal shall stop before entering the intersection at the place marked or the near- est side of the crosswalk but not past the signal and shall yield the right of way to pedestrians lawfully in a crosswalk and to other vehicles within an intersection or approaching so closely on an intersecting highway as to constitute an immediate hazard, and having so yielded may proceed;
It’s unclear how Uzbak could be charged with a flashing red light violation. Before the new Bridge Terminal was built, the light above the crosswalk was a push button-activated yellow flashing light; by May 2014 it had been shifted to a push button-activated green-yellow-red sequence. The light above the crosswalk up the hill, by Dartmouth High, was and remains a push button-activated flashing yellow light.
Perhaps Uzbak was charged with the wrong violation. Maybe he should have hired lawyer Gavin Giles to defend him — Giles, after all, successfully defended city councillor Linda Mosher from a improper lane charge related to allegedly hitting a bicyclist, by pointing out that Mosher had been charged with the wrong offence.
But Uzbak defended himself, both before Mitchell and on appeal. At the first hearing, Justice of the Peace Raymond Mitchell heard testimony by RCMP Constable Travis Paul Gallant, who testified as follows:
Q. What happened that brings you here?
A. I was coming off the MacDonald Bridge onto Nantucket Avenue in Dartmouth, Nova Scotia. I was travelling up Nantucket at which point the crosswalk lights were illuminated and flashing at the marked crosswalk there. As I came to a stop, there was a green Honda van in front of me and there was one male crossing the crosswalk. As that male almost got to the end of the crosswalk and stepping onto the … onto the sidewalk on the other side, the green van went through the crosswalk, not seeing another pedestrian that was already probably four … four steps through the crosswalk as the green van went through. That pedestrian, the male, threw his hands up in the air making a gesture at the vehicle, at the green van, as he went through the crosswalk. I initiated a traffic stop up on Victoria Road. The van made a left turn onto Victoria Road after Nantucket and at that point I initiated the traffic stop with Mr. Uzbak.
Q. Okay. How were you positioned in regards to the incident, like how could you see?
A. I was behind Mr. … I was behind the green Honda minivan and I had full view of both … both Mr. Uzbak in the green van as well as I could see the pedestrian that was coming both off of the crosswalk as well as the one that was probably three or four steps into the crosswalk already when … when the green van went through.
Mitchell, the judge, issued his ruling as follows:
The Court: So that’s the charge. So I’ve heard from the constable and I’ve heard from you in your own defence. Now, I’ll start by saying that the … the constable was directly behind you and I am satisfied he was. You say maybe you didn’t see him or you didn’t know. I’m satisfied he was directly behind you and he had excellent perspective to observe what was happening.
From the information, the evidence, that I received tonight, it’s clear that there was one pedestrian who was moving through the crosswalk and you slowed your vehicle to allow that pedestrian to cross. However, I accept the police officer’s evidence and your own that there was a second pedestrian crossing that crosswalk, this marked and lighted crosswalk, and even if I accept your own testimony, that pedestrian was at least one lane out across four lanes of the traffic.
Mr. Uzbak: Yeah, but …
The Court: Let me finish. There’s no median in between these four lanes. The person was in the crosswalk, on the road or the highway that you were driving. In these circumstances, the law is clear that you were required to yield the right-of-way to that pedestrian who was in the crosswalk.
In his appeal, Uzbak argued that:
I strongly believe that I should be acquitted as I did not violate any law. I only did what was right, giving the safety of pedestrian and the traffic behind me and I think anyone would do the same under same situation.
I am 100% sure that what I did, was the right reactions to the situation. Stopping my vehicle would have been exactly 100% wrong reaction. When I saw the other pedestrian pass the crosswalk I started accelerating to the point where I was situated 30 cm to the crosswalk that I heard the sound of push of button, which activated the light.
The appeal trial transcript puts forward Uzbak’s summary of his appeal:
Mr. Uzbak: I feel I’m not guilty because the reaction time I had between the light and the stopping point, even if I stopped, if for example if there was nobody behind me, I would still be on the crosswalk. It’s … I usually, when I drive, I try to operate with all my senses even I heard the noise, if I … if I knew if I could have stopped I would definitely because I saw the officer behind me. I wouldn’t do that if I … like nobody does that, like if somebody wants to (inaudible) something in line, I wouldn’t do it in front of the law, right, and I usually … I always stop behind the stop signs and everything. I never … I never try to break the law like in a traffic violation because I care about safety of people.
Pickup, the appeal judge, it was not his role to question the ruling on facts as found by Mitchell, but rather to look at how the law was applied to those facts. In terms of the law, Pickup rejected Uzbak’s augment:
Finally Mr. Uzbak in his brief raised the point that a pedestrian has a responsibility to wait for a vehicle. The respondent has agreed with this assertion and quite rightly points out that the pedestrian’s responsibility does not relieve Mr. Uzbak of his responsibility (Motor Vehicle Act, ss. 125(3) and (6)). These provisions of the Motor Vehicle Act are as follows:
(3) A pedestrian shall not leave a curb or other place of safety and walk or run into the path of a vehicle that is so closely approaching that it is impractical for the driver of the vehicle to stop..
(6) This Section does not relieve a pedestrian or a driver of a vehicle from the duty to exercise due care.
The evidence before the presiding justice of the peace was clear that the pedestrians were already in the crosswalk.
Uzbak’s conviction stands.