Failing to drive in marked lane requires proof of lack of safety

R. v. Capobianco, 2010 ONCA 589 holds that the driving offence "failing to drive in a marked lane" contrary to s. 154(1)(a) of the Highway Traffic Act, requires the prosecution to prove both that the driver left the "single lane" AND that so doing was not in safety.

Until now the charge was often seen as made out on showing there was a failure to drive in a single lane.

Section 154(1)(a) of the HTA reads as follows:

Where a highway has been divided into clearly marked lanes for traffic,

(a) a vehicle shall be driven as nearly as may be practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained the movement can be made with safety;

The Court holds:

[7]               The appellant concedes that there was no evidence that the respondent's manoeuvre was not made in safety but submits that the summary conviction appeal judge erred in interpreting the word "and" as requiring that the Crown prove both that the respondent left the lane and that the manoeuvre was not made in safety.

[8]               In the appellant's submission, s. 154(1)(a) creates two separate offences: first, an offence for not driving as nearly as may be practicable entirely within a single lane and; second, an offence where the driver moves from the lane without first having ascertained that the movement can be made with safety.

[9]               The appellant acknowledges that "and" usually implies a conjunction; that one must do both what precedes and what follows the word "and".  However, in the appellant's submission, the use of the word "and" in s. 154(1)(a) is intended to create separate obligations upon a driver.  The driver must both drive within a marked lane and, when he or she decides to move from the single marked lane, ascertain that it can be done safely.  This interpretation, in the appellant's view, flows from a reading of the HTA as a whole, from the context in which the word "and" appears in the section and from a review of other provisions of the HTA that use the word "and".

[10]          We disagree.  Although the use of the word "and" in the English version of the section might be seen as ambiguous because, in some circumstances, it can connect two separate obligations, the French version of the section does not allow for such an interpretation.  The French version clearly provides for only one offence.  It does not use the equivalent of the word "and".  Roughly translated, the French version provides that the vehicle must travel as much as possible entirely inside a single lane without leaving it until the driver has assured himself that such a manoeuvre can be executed safely