Court File and Parties

Court File No.: Central East 3860-4618490A Date: 2013-04-03 Ontario Court of Justice

In the Matter of: An appeal under Subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between: Vincenzo Piacente Appellant

— And —

Her Majesty the Queen Respondent

Before: Justice Glenn D. Krelove

Heard on: January 8, 2013

Reasons for Judgment released on: April 3, 2013

Counsel: Randy Porter, for the Appellant Seamus Feeney, for the Respondent

On appeal from: A conviction by Justice of the Peace D. Wilson on July 4, 2011 and from the sentence imposed on December 5, 2011.

KRELOVE J.:

Introduction

[1] Vincenzo Piacente appeals his conviction after trial on a charge of speeding 75 kilometres per hour in a 50 kilometres per hour zone contrary to s. 128 of the Highway Traffic Act.

[2] The appeal is brought pursuant to s. 135 of the Provincial Offences Act. The appellant requests that this court allow the appeal and enter an acquittal or, alternatively, order a new trial.

[3] The grounds of appeal as set out in the Notice of Appeal reads as follows:

"Justice ruled no expert testimony – officer gave experience re his training it was officer who told court of the discrepancy of the radar".

Overview of the Facts

[4] On July 1, 2010 Constable Andrew Pye of the Barrie Police services was on duty on Bayfield Street in Barrie operating a speed LTI 20/20 ("laser") which is a laser speed measuring device. He is a qualified operator. He observed the appellant's northbound motor vehicle approaching him. It appeared to be exceeding the posted speed limit of 50 kilometres per hour. He used the laser and obtained a reading of 75 kilometres per hour. He stopped the vehicle and provided the appellant with an offence notice. The officer testified that the laser was in proper working order.

[5] In cross-examination, Constable Pye agreed that the manual prepared by the manufacturer of the laser indicates that the accuracy of the device is plus or minus two kilometres per hour. He agreed that the actual speed of the appellant's vehicle at the relevant time could have been any of 73, 74, 75, 76 or 77 kilometres per hour.

Analysis

[6] In his oral submissions, Mr. Porter, licensed agent for the appellant, stated that the learned Justice of the Peace should have accepted Constable Pye's evidence concerning the margin of error in the laser and that because this laser is not fully accurate, the learned Justice of the Peace should have rejected the reading and acquitted the appellant.

[7] Concerning the issue of the accuracy of the laser, the learned Justice of the Peace stated as follows in his Reasons for Judgment:

"This court is satisfied that Officer Pye is a trained and qualified operator of the laser speed measuring device. At no time was he qualified as an expert witness on laser speed measuring technology. Any evidence he could offer as to accuracy would be considered hearsay at best. In this instance, the court places no weight on his remarks under cross-examination with respect to accuracy. A conviction will register to the charge of speeding, 75 in a posted 50."

[8] In my view, the learned Justice of the Peace should have considered the evidence of Constable Pye concerning his understanding of the accuracy of the laser. The information from the manufacturer's manual was part of constable Pye's training with respect to the laser. It was not necessary for Constable Pye to be qualified as an expert witness on laser speed measuring technology to give this evidence. The court should have considered this evidence.

[9] If the learned Justice of the Peace had considered this evidence, he would have been entitled to accept that the appellant's speed was 73 kilometres per hour.

[10] The learned Justice of the Peace was correct when he indicated in his Reasons that a "conviction can register on evidentiary grounds that establish the act of speeding". The case law is clear that the prosecutor need only establish that a driver was speeding and that the number of kilometres over the speed limit is only relevant to the issue of penalty (see: R v. Amyot, [1968] 2 O.R. 626 (Ont. Co. Ct) and R. v. Brown, [2011] M.J. No. 241 (Man. C.A.)).

[11] Accordingly the learned Justice of the Peace was correct in finding the appellant guilty of speeding. However, when he was assessing the fine, it should have been based on an excess speed of 23 rather than 25 kilometres per hour.

Conclusion

[12] In conclusion, the conviction appeal is dismissed. The sentence will be varied from a fine of $112.50 to one of $103.50.

Released: April 3, 2013

Signed: "Justice G.D. Krelove"

Justice G.D. Krelove, O.C.J.