R. v. Raina, 2013 ONCJ 306

Her Majesty the Queen v. Raveesh Raina

Ontario Court of Justice Toronto, Ontario

Counsel:

• M. Frederick for the Prosecution
• G. Faulkner, Agent for the Defendant

Before: J. Opalinski J.P.

Heard: December 21, 2012 Delivered: May 3, 2013

Introduction

1The defendant, Raveesh Raina, (hereinafter referred to as the defendant) is charged on the 7th day of July, 2012 at 1:20 am., at southbound R.W. Allan Road, in the City of Toronto, with the offence of speeding 95 kilometers per hour in a 60 kilometer zone, contrary to section 128 of the Highway Traffic Act, R.S.O. 1990 c. H.8.

2The defendant by way of his agent Mr. G. Faulkner entered a plea of not guilty on December 21, 2012. The court heard evidence only from Toronto Police Officer Roberto Calo.

Charges

3Section 128 of the Highway Traffic Act, supra, provides that:

No person shall drive a motor vehicle at a rate of speed greater than what is contained in the provisions of section 128.

Issue

4The issue before the court is: whether or not the prosecution has proven one key element of the offence beyond a reasonable doubt required to convict the defendant, namely, that the officer tested the laser device after dealings with the defendant at the end of his shift and whether or not the officer is qualified to operate the said unit even though he may be trained to use it?

Argument for the Prosecution

5The prosecution submits that the officer's evidence is clear and concise. In his evidence in chief, the officer did state that he tested the laser unit at the end of his shift and in any event even if the court were to accept that he did not do so, there is case law that indicates it is not necessary for the court to hear such evidence to find that the elements of the offence have been made out. In cross examination, the agent for the defendant did not ask the officer any questions as to whether or not he is qualified to operate the laser unit and by being trained in the use of the unit the officer is qualified to use it.

Argument of Defence Agent

6The agent for the defendant has made an argument that the case law states that one of the essential elements of the offence that needs to be established to convict a defendant of speeding is that the officer not only tested the laser unit at the start of his shift but also at the end of his shift and the device must be found to be working properly according to manufacturer's specifications. The officer's viva voce evidence was that he tested the device at the end of his shift but in this instance did not make a note of this in his notes, although he did do so with regard to testing the unit at the start of his shift and it was his usual practice to make such a note for testing both at the beginning and at the end of his shift in his notebook. In the absence of such a note, one should not conclude that the test was actually done. If it has not been done and needs to be done, as this is an essential element of the offence which the prosecution must prove, then the defendant should not be found guilty.

7The agent for the defendant further argued that another element of the offence which the prosecution must prove beyond a reasonable doubt, that being, that the officer is qualified to operate the laser unit was not contained in the evidence given by the officer. While he may have stated that he was trained to operate the laser unit, it was argued by the agent for the defendant that one can be trained to operate a laser device, but that does not mean that one is qualified to do so.

Evidence for the Prosecution

8The court heard evidence from Toronto Police Officer Roberto Calo.

9The evidence of Officer Roberto Calo may be summarized as follows:

(a) On July 7th, 2012 at approximately 1:20 am, Officer Calo was situated on Eglinton Avenue at the W.R. Allan Road for the express purpose of speed enforcement on W.R. Allan Road.

(b) At 1 a.m., being the start of the officer's shift, the officer tested the laser speed-measuring device, a LT1 ultra LRB light unit with serial number UXO18679, according to manufacturer's specifications. The unit was found to be working properly.

(c) The officer observed the defendant travelling southbound on W.R. Allan Road, in the City of Toronto in a grey 2 door Hyundai Genesis motor vehicle in the easterly most lane, at a high speed.

(d) The laser device measured the defendant traveling at a speed of 95 kilometers per hour in a 60 kilometer zone at a distance of 398.6 meters away. The officer then performed a second test as the requirements state and obtained the same speed of 95 kilometers an hour.

(e) The officer stopped the defendant, asking the defendant for his driver's licence, ownership and insurance and all three documents were provided.

(f) The officer indicated that the device was capable of measuring the speed and distance of moving vehicles, that it was accurate and that upon finishing conducting his enforcement in the area he tested the device again to ensure that it was functioning properly and it passed the 3 tests again.

(g) The officer further indicated that he knows how to work the laser device according to the manual provided and was trained on that particular device.

(h) There are signs on W.R. Allan Road posted on a bridge 600 meters from the officer's location indicating that there is an upcoming 60 kilometer zone and 2 signs on either side of the road 500 meters from the officer's location just past the Ridelle bridge overpass indicating a posted 60 kilometer zone, 2 more signs on either side indicating a 60 kilometer zone just after another over pass being that of Aldburn Road, with a further and single sign indicating 60 kilometers on the west side of the road.

(i) The officer never lost sight of the defendant's vehicle.

Evidence for the Defence

9The defendant chose to call no evidence.

The Law

10The defendant is charged with the offence of speeding 95 kilometers in a 60 kilometer zone contrary to section 128 of the Highway Traffic Act supra.

11In the decision of R. v. Sim (Ont. C.A.) [1988] O.J. No. 2250 the Court of Appeal found that:

There was evidence of the police officer that he tested the radar unit both before and after it measured the respondent's speed and that there was evidence from which it can be concluded that that the police officer was familiar with the unit and the manner in which it was intended to be used.

12The court found that the trial justice did not err in law and dismissed the appeal.

13The Court of Appeal in R. v. Vancrey [2000] O.J. No. 3033 considered what evidence is necessary for the prosecution to call to prove its case beyond a reasonable doubt with regard to the charge of speeding. The only evidence that the court had to consider was the evidence of the two police officers as the defence chose not to call any evidence.

14The issue that the court had to determine was whether or not the evidence adduced at trial was adequate to establish the accuracy and reliability of the speed-measuring device.

15The trial justice of the peace stated that 'in order to accept the Crown evidence of the speed of the appellant's vehicle, there must be some sufficient guarantee of the trustworthiness of the laser unit'.

16The Court of Appeal making reference to the decision in D'Astous v. Baie-Comeau (Ville) (1992), 74 C.C.C. (3d) 73, indicated that the prosecution must prove that the speed-measuring device was 'operated accurately' at the time of the offence. In order to do so the Crown had to demonstrate that:

• The operator was qualified: he followed a course, he passed an exam, he has several months' experience;
• The device was tested before and after the operation;
• The device was accurate as verified by a test and then the reading of the device becomes prima facie evidence of the speed of the vehicle, subject to evidence to the contrary, if any.

17In R. v. Vancrey, supra, the Court of Appeal found that the trial court had received evidence that the officer was 'trained and experienced, he tested the device both before and after its use in accordance with the manufacturer's instructions and it was both working properly 'on the date in question' and was accurate.

18In the decision of R. v. Niewiadomski [2004] O.J. No. 478, the court found that the officer in his evidence had made no notation of the tests he had performed on the device on the day in question and admitted that he had not followed the guidelines. The court found that a trial justice cannot take judicial notice of the 'reliability and accuracy of the readings' of the device unless it is first established that the operator of the device was trained and qualified and the device itself was in proper working order before and after its 'proper operation'. Only when this is done has the prosecution 'established a prima facie case that can support a conviction unless the defence raises a reasonable doubt through independent evidence or through cross-examination of the prosecution witness'. (at para 26)

19The court found that 'the evidence in cross-examination of the police officer should have raised a reasonable doubt in the mind of the learned Justice of the Peace as to the qualifications and training the officer received and whether or not the device was in proper working order'. (at para 30) The manufacturer of the device has set out specific testing procedures for a reason and that is so that they be complied with.

20In R. v. Kololgi [2009] O.J. No. 5742, the court found that compliance with the manufacturer's testing requirements was 'an essential element of the offence of speeding' where the device was being required to prove the speed of a moving motor vehicle. Only with strict compliance with the manufacturer's testing requirements, 'can the court be assured of the reliability and the accuracy of reading obtained through operation of the device beyond a reasonable doubt'. (at para 20) The officer gave evidence that while he 'acknowledged that the manufacturer's direction should be followed to ensure that the device was working properly, in terms of usage of the equipment the police can follow their own policies'. (at para 6) Accordingly, the appeal was granted, the conviction set aside and the charge dismissed.

21At the same time the court in the decision of R. v. Volfson [2009] O.J. No. 1978, the court took a contrary position than that contained in the cases cited herein, namely, the court found that 'manufacturer's directions are not statutory requirements and should not be elevated to that status.' (at para 18) 'The courts should look at the practical effect of the requirements set out by the manufacturer. Practically they operate as a scheme or checklist to ensure the accuracy and reliability of the radar device. They are meant to be complied with as part of this scheme or checklist. Slavish adherence to these directions is not required if it does not practically affect the accuracy or reliability of the results obtained by the radar device'. (at para 20)

Analysis

22This court does not accept the reasoning contained in R. v. Volfson, supra, and finds that if the readings of the speed-measuring device are to be accepted as evidence to make out an essential element of the offence of speeding, which is the speed at which the moving motor vehicle was traveling, the evidence of the officer has to sufficiently establish that the unit was working properly and that the officer is qualified and trained in the use of the unit.

23In order to establish that the unit was working properly, the officer's evidence has to contain how he tested the unit, namely, according to manufacturer's specifications at the beginning and end of his shift and that the unit was found to be working properly each time.

24The defendant's agent through cross-examination has raised the point that the officer's notes do not contain that he tested the unit at the end of his shift, even though his usual practice is to write this down when he performs the test. His notes do, however, show that he tested the device according to manufacturer's specifications at the beginning of his shift.

25This court finds that the officer's notes are there for the purpose of refreshing the officer's memory as to specifics. They were qualified and he indicated he had an independent recollection. His viva voce evidence was that he tested the device after dealings with the defendant, performing the three tests again and that the device was working properly. At no time under cross-examination did the officer state that he had not tested the device at the end of his shift or after dealings with the defendant. Consequently, the court finds that the evidence supports that the laser unit was working accurately and properly and that there is no evidence to the contrary. One essential element of the offence, has been made out by the prosecution.

26With regard to the prosecution establishing that the officer was trained and qualified in the use of the laser unit in question, the officer's evidence was that he knows how to work the device according to the manual provided and was trained on that particular device. The court needs to ask: is this sufficient to show that he was not only trained but also qualified to use the laser unit?

27If one looks at the Court of Appeal's decision in R. v. Sim, supra, it would appear that it is sufficient for the prosecution to show that 'the police officer was familiar with the unit and the manner in which it was intended to be used' and that it is not necessary to go into any further detail as to the training of the officer, his years of experience and qualifications. By showing that he was trained in the use of the unit shows that he is qualified to use it unless there is some evidence adduced to the contrary or doubt created through cross-examination of the police officer and this was not done. The court finds that the element of the offence with regard to the qualifications and training of the officer has been met, this being one of the essential elements of the offence of speeding that the prosecution is required to establish. Without this evidence being established, the court cannot rely on the finding of the laser device with respect to whether or not it was functioning properly, if the court is not satisfied that the person who tested the device was trained and qualified to do so.

Disposition

28For the reasons set out above, the court finds that the prosecution has met its onus of proving beyond a reasonable doubt that the defendant was speeding at a rate of speed of 95 kilometers in a 60 kilometer zone on July 7, 2012. The court finds the defendant guilty of contravening section 128 of the Highway Traffic Act, supra.