Court File and Parties

Court File No.: Halton Information no. 138531 Date: 2015-10-27 Ontario Court of Justice

Between: Her Majesty The Queen — AND — Shawn Gray-Rock

Before: Justice of the Peace Kenneth W. Dechert

Heard on: June 24, 2015 and July 13, 2015

Reasons for Judgment released on: October 27, 2015

Provincial Offences Court – Burlington, Ontario

Counsel:

• J. Dafoe and A. Woolf for the Crown
• No appearance by or on behalf of Shawn Gray-Rock, even though notified of time and place

Statutes, Regulations and Rules Cited

• Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, as amended, ss. 3(1)
• Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, ss. 1(1), paragraph 128(1)(d), ss. 128(2), ss. 128(11) and ss. 172(1)
• Ontario Regulation No. 455/07, made pursuant to the Highway Traffic Act, s. 3(7)
• Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, Part III

Cases Cited

• City of Joliette v. Delangis, [1999] J.Q. No. 4936 (Que. C.A.)
• Regina v. Cerisano, [2011] O.J. No. 6351 (Ont. C.J.)
• Regina v. Correia, [2015] O.J. No. 2705 (Ont. C.J.)
• Regina v. Hickey (1976), 13 O.R. (2d) 228 (Ont. C.A.)
• Regina v. Khalatbari, [2004] O.J. No. 4167 (Ont. C.J.)
• Regina v. Kienapple (1974), 15 C.C.C. (2d) 524 (S.C.C.)
• Regina v. Le, [2002] O.J. No. 894 (Ont. C.J.)
• Regina v. Meli, [2011] O.J. No. 5341 (Ont. C.J.)
• Regina v. Mukasa, [2001] O.J. No. 262 (Ont. C.J.)
• Regina v. Odusanya, [2002] O.J. No. 3209 (Ont. C.J.)
• Regina v. Polewsky, [2005] O.J. No. 4500 (Ont. C.A.)
• Regina v. Prince (1986), 30 C.C.C. (3d) 35 (S.C.C.)
• Regina v. Raham, 2010 ONCA 206 , [2010] O.J. No. 1091 (Ont. C.A.)
• Regina v. Rambisoon, [2003] O.J. No. 3554 (Ont. C.J.)
• Regina v. Sault Ste. Marie (City), [1978] S.C.J. No. 59 (S.C.C.)
• Regina v. Sepiashvili, [2003] O.J. No. 3996 (Ont. C.J.)
• Regina v. Terlecki (1983), 1983 ABCA 87 , 4 C.C.C. (3d) 522 (Alta. C.A.)
• Regina v. Terlecki (1983), 22 C.C.C. (3d) 224 (S.C.C.)
• Regina v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.)
• Regina v. Williams, 2008 CarswellOnt 1504 (Ont. C.J.)
• Regina v. Zachariou, [1999] O.J. No. 2488 (Ont. C.J.)

K.W. DECHERT J.P. (orally):

INTRODUCTION

1In Information number 138531, the defendant, Shawn Gray-Rock, stands charged as follows:

1. that he, on or about the 18th day of November, 2013 at the Town of Oakville, in the Region of Halton, did commit the offence of "drive a motor vehicle on a highway at a greater rate of speed than 60 km/hr, to wit: 120 km/hr in a posted 60 km/hr zone contrary to section 128 of the Highway Traffic Act"; and

2. that he, on or about the 18th day of November, 2013 at the Town of Oakville, in the Region of Halton, did commit the offence of "drive a motor vehicle on a highway while performing a stunt, to wit: excessive speed – 120 km/hr in a posted 60 km/hr zone contrary to section 172(1) of the Highway Traffic Act"; and

3. that he, on or about the 18th day of November, 2013 at the Town of Oakville, in the Region of Halton, did commit the offence of "being the operator of a motor vehicle on a highway, did fail to have an insurance card contrary to section 3(1) of the Compulsory Automobile Insurance Act".

2On June 24th, 2015, the defendant failed to appear for the scheduled 9:00 a.m. trial of the said charges. Accordingly, following arraignment at 9:15 a.m., I entered pleas of not guilty to all three charges on behalf of the absent defendant, and the proceedings then continued before me by way of a trial in the absence of the defendant. The trial was then adjourned until July 13th, 2015, when it was completed. It was then adjourned until October 27th, 2015 for my judgment.

3The Crown was represented by Ms. A. Woolf on June 24th, 2015 and by Ms. J. Dafoe on July 13th, 2015. The defendant did not appear in court on either of the said trial dates.

THE LAW

(i) Relevant Statutory Provisions

4The defendant is charged with the offence of speeding, contrary to section 128 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as "the H.T.A.", the offence of stunt driving, contrary to subsection 172(1) of the H.T.A., as well as the offence of failing to have an insurance card, contrary to subsection 3(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, as amended, hereinafter referred to as "the C.A.I.A.".

5The following subsections of section 128 of the H.T.A. are relevant to this proceeding:

(1) No person shall drive a motor vehicle at a rate of speed greater than,

(d) the rate of speed prescribed for motor vehicles on a highway in accordance with subsection (2), (5), (6), (6.1) or (7); …

(2) The council of a municipality may, for motor vehicles driven on a highway or portion of a highway under its jurisdiction, by by-law prescribe a rate of speed different from the rate set out in subsection (1) that is not greater than 100 kilometres per hour and may prescribe different rates of speed for different times of day.

(11) No by-law passed under this section or regulation made under clause (7)(c) becomes effective until the highway or portion of it affected by the by-law or regulation, as the case may be, is signed in accordance with this Act and the regulations.

6Subsection 1(1) of the H.T.A. defines the term "driver" as being "a person who drives a vehicle on a highway".

7Subsection 172(1) of the H.T.A., which, in part, creates the offence of stunt driving, reads as follows:

No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.

8The stunt driving charge in this proceeding is particularized as "excessive speed – 120 kilometres per hour in a posted 60 kilometres per hour zone". Accordingly, section 3(7) of Ontario Regulation No. 455/07, titled "Races, Contests and Stunts", is applicable to the subject charge. That provision reads as follows:

For the purposes of section 172 of the Act, 'stunt' includes any activity where one or more persons engage in any of the following driving behaviours:

7. Driving a motor vehicle at a rate of speed that is 50 kilometres per hour over the speed limit.

9Finally, subsection 3(1) of the C.A.I.A. reads as follows:

An operator of a motor vehicle on a highway shall have in the motor vehicle at all times,

(a) an insurance card for the motor vehicle; or

(b) an insurance card evidencing that the operator is insured under a contract of automobile insurance,

and the operator shall surrender the insurance card for reasonable inspection upon the demand of a police officer.

(ii) Relevant Common Law

10In its decisions in Regina v. Hickey (1976), 13 O.R. (2d) 228 (Ont. C.A.) and Regina v. Polewsky, [2005] O.J. No. 4500 (Ont. C.A.), the Ontario Court of Appeal classified the offence of speeding under section 128 of the H.T.A. as one of absolute liability. If the prohibited act and the identification of the defendant are established to the standard of proof beyond a reasonable doubt, the fault element of negligence is automatically imported into the offence. As the offence is one of absolute liability it is not open to a defendant to attempt to exculpate him or herself, by showing that he/she was free of fault.

11In its decision in Regina v. Raham, 2010 ONCA 206 , [2010] O.J. No. 1091 (Ont. C.A.), the Ontario Court of Appeal determined that the offence of stunt driving by driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit, as defined in section 3(7) of Ontario Regulation 455/07, was one of strict liability. Accordingly, as in the case of the offence of speeding, if the Crown meets its burden of proving the actus reus of the offence and establishes the identity of the defendant beyond a reasonable doubt, then the fault element of negligence is automatically imported into the offence. It is, therefore, open to a defendant to attempt to avoid liability for the offence by proving on a balance of probabilities, that in committing the offence he/she either exercised due diligence or did so on the basis of a reasonable mistake of fact. If the said defence is established, then the defendant's presumed negligence is rebutted and he/she is excused of liability for the offence.

12Trial-level courts of the Ontario Court of Justice have classified the offence of fail to surrender an insurance card, under subsection 3(1) of the C.A.I.A., as both an absolute liability offence (Regina v. Cerisano, [2011] O.J. No. 6351 (Ont. C.J.)) and a strict liability offence (Regina v. Rambisoon, [2003] O.J. No. 3554 (Ont. C.J.)). I am not aware of a binding appellate-level authority which has determined the appropriate classification for this offence.

13In my decision in Regina v. Correia, [2015] O.J. No. 2705 (Ont. C.J.), I opined that the C.A.I.A. was a public welfare statute. In doing so I adopted certain comments respecting the legislative objectives of the C.A.I.A., made by MacDonnell J. in his decision in Regina v. Zachariou, [1999] O.J. No. 2488 (Ont. C.J.). Accordingly, the offence created by subsection 3(1) of the C.A.I.A. may logically be described as a public welfare offence.

14In his seminal decision in Regina v. Sault Ste. Marie (City), [1978] S.C.J. No. 59 (S.C.C.), Dickson J. concluded that public welfare offences were, presumptively, strict liability offences. In this proceeding, the Crown has not led any evidence or made any legal submissions for purposes of attempting to rebut the said presumption. Accordingly I am of the view that the offence created by subsection 3(1) of the C.A.I.A. is one of strict liability.

THE EVIDENCE

15On June 24th, 2015, I received testimony from Police Officer Matthew Springstead, tendered on behalf of the Crown. The officer testified that at that time he was employed by the Halton Regional Police Service as a traffic enforcement officer and that he had been so employed at the time of the alleged commission of the subject offences.

16Officer Springstead testified that during the evening hours of November 18th, 2013, he was on duty as a traffic enforcement officer, in the Town of Oakville. He stated that at that time, he was operating a grey-coloured, unmarked police motor vehicle and was utilizing a laser speed measuring device as part of his traffic enforcement responsibilities. He described this device, which was specifically assigned to him by the said police service, as a "Lidar Laser Tech LRB LTI 20-20" device.

17He testified that at the relevant time, he was trained and qualified in the use of the said "Lidar Laser Tech" device. He advised that he was "re-qualified" in the use of the device in January 2012, when he was assigned to a unit of the Halton Regional Police Service specializing in traffic enforcement. In particular, he stated that he was certified in the operation of the laser speed measuring device in January 2012 and that that certification remained effective for a period of 36 months.

18Officer Springstead testified that on November 18th, 2013 at 7:36 p.m., prior to commencing his vehicular speed enforcement duties that evening, he tested the subject Lidar device in accordance with manufacturer's guidelines, to make sure it was "operating correctly". He described those tests as being a "display test", a "sight alignment test" and a "fixed distance and velocity test". He stated that he performed the said tests "in accordance with manufacturer's specifications" and that based upon the results of the tests, he was of the opinion that the laser device was "operating properly".

19Officer Springstead testified that on November 18th, 2013, at approximately 10:51 p.m., he parked his unmarked police vehicle on the southeast corner of the intersection of Dundas Street and Lions Valley Park Road, in the Town of Oakville, such that he was facing Dundas Street. He advised that from that location, he was able to monitor the speed of east and westbound traffic on Dundas Street.

20He stated that immediately after arriving at the said location, he noticed a single eastbound motor vehicle on Dundas Street, located approximately 250 metres west of his vantage point, travelling at a high rate of speed. He advised that the subject motor vehicle, which he later determined to be a Honda Civic, was being driven in the centre lane of three eastbound lanes. He estimated that it was travelling at a rate of speed of between 110 and 120 kilometres per hour.

21He testified that upon observing this motor vehicle travelling at a high rate of speed towards his location, he pointed the "sight" of his hand-held Lidar device at the vehicle's front end, in the location of its front licence plate. He stated that the Lidar device "captured" the actual rate of speed of this moving vehicle at this time; being that of 120 kilometres per hour. In this regard, I note that while the officer did not state that he activated the laser device at the material time, I am able to draw a reasonable inference from the totality of his testimony that in the course of pointing the laser unit at the targeted vehicle and then "capturing" its speed, the officer activated the device.

22Officer Springstead testified that he estimated that the subject Honda motor vehicle was approximately 100 metres west of his location on Lions Valley Park Road, when he obtained the measurement of the vehicle's speed through the operation of the Lidar device. He advised that at this particular moment, the said motor vehicle was the only eastbound vehicle on Dundas Street in the area immediately west of Lions Valley Park Road.

23The officer testified that at the time that he obtained the said speed measurement, the subject vehicle was travelling over a bridge on Dundas Street, which was within a posted 60 kilometres per hour speed-limit zone. In this regard, the officer stated that a 60 kilometres per hour speed limit sign was erected on Dundas Street, at a location near the westerly limit of the said bridge.

24Officer Springstead testified that immediately after measuring the speed of the said motor vehicle, he noticed it pass in front of him and continue in an easterly direction on Dundas Street. He stated that at that time, he began to pursue the vehicle with the emergency lights of his police vehicle activated. He advised that he followed the eastbound vehicle, without losing sight of it, as it passed through the intersection of Neyagawa Boulevard until it eventually pulled over to the right shoulder of Dundas Street near its intersection with Harman Gate. The vehicle then turned right onto Harman Gate and stopped on that street at a location just south of Dundas Street.

25While I acknowledge that Officer Springstead failed to advise of the municipality where the intersection of Dundas Street and Harman Gate was located, I am able to take judicial notice of the fact that this intersection was, at the relevant time, within the boundaries of the Town of Oakville. In reaching this conclusion, I have made reference to a map of the relevant territory as contained within the 2012 edition of "Golden Horseshoe Map Art", published by Peter Heiler Ltd. and distributed by MapArt Publishing Corp.

26Officer Springstead testified that upon stopping the subject vehicle, he approached its driver's side and had a brief conversation with its driver. At that time, the officer asked the driver to surrender a driver's licence, the permit for the vehicle and "a valid insurance card". In response to this demand, the driver surrendered his driver's licence and a permit for the motor vehicle. The driver was unable to surrender an insurance card as requested.

27The driver of the said motor vehicle, which the officer observed to be a dark green-coloured Honda Civic, surrendered an Ontario "class G2" driver's licence, containing a photograph. Officer Springstead noted that the photograph on the driver's licence "matched the likeness of the driver". Upon reviewing the contents of the driver's licence, the officer was able to identify the driver of the subject motor vehicle to be Shawn Gray-Rock, with a date of birth of March 22, 1991. The officer stated that he was satisfied that the driver was the same person as depicted and identified on the driver's licence produced.

28Officer Springstead completed his testimony by indicating that after determining the identification of Shawn Gray-Rock as the driver of the subject vehicle, he served him with three summons under Part III of the Provincial Offences Act, relative to the subject charges.

THE ISSUES

29The ultimate issue in this proceeding is whether the Crown has proven all of the essential elements of the actus reus of each of the three offences against Shawn Gray-Rock, to the standard of proof beyond a reasonable doubt.

30In respect of the related charges of speeding and stunt driving - excessive speed, I must determine whether the totality of the evidence led at trial establishes a prima facie case as to the accuracy and reliability of the subject Lidar speed measuring device at the time that it was used to measure the speed of the subject motor vehicle. If I am left in a state of reasonable doubt as to the ability of the said laser device to accurately and reliably measure and record the speed of the moving motor vehicle at the relevant time, then I will not be able to take judicial notice of the accuracy of the rate of speed recorded.

31In his testimony in this proceeding, as summarized above, Police Officer Springstead advised that he tested the Lidar device, in accordance with manufacturer's specifications, prior to using it to measure the speed of Mr. Gray-Rock's vehicle. However, he failed to state whether he tested the device after so using it, to ensure its continued operability.

32The legal question which I must resolve, therefore, is whether the absence of evidence as to whether the subject laser device was tested after the time it was used to measure the speed of the subject vehicle, raises a reasonable doubt as to the accuracy and reliability of the speed measurement obtained at the relevant time.

ANALYSIS

(i) The Offence of Fail to Have an Insurance Card

33Based upon the direct and credible evidence of Police Officer Springstead in this proceeding, I find that the following elements of the actus reus of the offence of "fail to have an insurance card", contrary to subsection 3(1) of the C.A.I.A., against the defendant herein, have been proven on prima facie basis:

(i) that on the 18th day of November, 2013, shortly after 10:51 p.m., Shawn Gray-Rock was operating a motor vehicle on a highway to wit: Harman Gate, near its intersection with Dundas Street, in the Town of Oakville; and

(ii) that at or about that time, the said motor vehicle was stopped on Harman Gate; and

(iii) that upon stopping the said motor vehicle, the investigating police officer demanded that Shawn Gray-Rock surrender to him an insurance card for the motor vehicle for inspection; and

(iv) that the defendant failed to surrender the requested insurance card to the police officer, as he was unable to locate it in the motor vehicle.

34In light of my finding in this regard, and noting the absence of any evidence which contradicts Officer Springstead's testimony, I am of the view that all of the elements of the actus reus of the subject offence have been established to the standard of proof beyond a reasonable doubt.

(ii) The Offence of Speeding and the Related Offence of Stunt Driving – Excessive Speed

35In his decision in the case of Regina v. Williams, 2008 CarswellOnt 1504 (Ont. C.J.), Pockele J. identified the essential elements of a speeding charge as being "the date, place, posted speed, identification of the vehicle operator, and the speed of the motor vehicle".

36Based upon the direct and credible evidence of Officer Springstead in this proceeding and based upon the fact that there is no evidence before me which contradicts his evidence, I find that the following elements of the actus reus of subject offences of speeding, contrary to section 128 of the H.T.A. and stunt driving – excessive speed, contrary to subsection 172(1) of the H.T.A. have been proven beyond a reasonable doubt:

(i) that on the 18th day of November, 2013 at approximately 10:51 p.m.;

(ii) Shawn Gray-Rock was driving a motor vehicle;

(iii) on a highway to wit: Dundas Street, eastbound, approximately 100 metres west of its intersection with Lions Valley Park Road;

(iv) within a posted 60 kilometres per hour speed-limit zone;

(v) in the Town of Oakville.

37The remaining issue to be resolved is the rate of speed of the motor vehicle being driven by Shawn Gray-Rock at the material time.

38As stated above, Police Officer Springstead testified that he measured the speed of the defendant's motor vehicle as it was travelling in an easterly direction on Dundas Street, at an estimated distance of 100 metres west of the intersection of Dundas Street and Lions Valley Park Road. He testified that he measured the speed of the defendant's vehicle by means of the subject Lidar laser speed measuring device, which he was utilizing to conduct speed enforcement activities at the relevant time. He advised that upon pointing the Lidar device at the front end of the defendant's vehicle and activating the device he "captured" the rate of speed of the defendant's vehicle on the device as being 120 kilometres per hour.

39The evidence of the rate of speed of Mr. Gray-Rock's motor vehicle at the relevant time, as measured by the said laser device, is the only evidence before me as to the actual speed of the motor vehicle. I must now decide whether the testimony of Police Officer Springstead establishes, on a prima facie basis, the accuracy and reliability of the speed measurement relative to the defendant's motor vehicle, obtained by the subject Lidar device.

40If the evidence led in a trial of a speeding charge establishes that at the time that the laser speed measuring device was activated, it was functioning properly, that the operator of the device was trained and qualified in its use and that he/she operated it properly at the time it was used to clock the speed of the targeted motor vehicle, then the Court is able to take judicial notice of the accuracy of the rate of speed measured by the laser device. In the absence of evidence to the contrary, that evidence would establish proof beyond a reasonable doubt of the element of the rate of speed of the targeted vehicle at the material time.

41The leading case with respect to the issue of the reliability of speed measurement evidence derived from laser speed measuring devices, is the decision of the Ontario Court of Appeal in Regina v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.). In that decision, at paragraphs 21 and 22, Feldman J.A., writing on behalf of the appeal panel, made the following comments relative to the evidence required to establish the accuracy and reliability of the rate of speed of a motor vehicle as determined by a laser device:

The Crown seeks to uphold the conviction on the basis that there was led at trial prima facie evidence of the accuracy and reliability of the particular laser unit, consisting of the performance of the manufacturer's tests for good working order both before and after the use of the device, together with the earlier verification of the accuracy of the laser unit for measuring the velocity of moving vehicles on a highway, when compared with an accurate radar unit by a qualified laser and radar operator.

In my view, the position of the Crown is correct. The court received evidence that the officer who operated the laser device was trained and experienced and that he tested the device both before and after its use in accordance with manufacturer's instructions to ensure it was operating properly on the date in question. The Court also received evidence of the accuracy of the device for measuring the speed of vehicles on a highway by comparing its readings with those of an accurate radar unit. The radar test provides the independent guarantee of accuracy of the laser unit to measure the speed of a moving vehicle.

42In his decision in Regina v. Le, [2002] O.J. No. 894 (Ont. C.J.), Fairgrieve J. determined that the decision of the Ontario Court of Appeal in Regina v. Vancrey, supra, did not require the prosecution to lead evidence that readings from the particular laser device had been recently compared with those of an accurate radar device, before a court could be satisfied that the laser speed readings were reliable. In paragraph 14 of his decision, the said jurist made the following observations:

In my opinion, regardless of whether the reliability of laser devices to measure the speed of motor vehicles is regarded as so 'notorious' that it cannot be disputed by reasonable people, or whether one accepts the judgments in Delangis [1999] J.Q. No. 4936, and Mukasa, [2001] O.J. No. 262, as demonstrating prior judicial acceptance of the device's reliability, it is now appropriate for other courts to take judicial notice of that fact. Laser devices have been used for this purpose by law enforcement agencies for almost a decade, the evidence obtained through their use has been routinely admitted as reliable, and at least one provincial appellate court has held that their reliability is so well-known that it requires no evidence to establish it.

43In her decision in Regina v. Odusanya, [2002] O.J. No. 3209 (Ont. C.J.), Lane J. adopted the reasoning of Fairgrieve J. in Regina v. Le, supra, in finding that one could take judicial notice of the accuracy of laser speed measuring devices without any independent comparison testing. In commenting on the reliability of evidence of the rate of speed of a motor vehicle derived from a laser speed measuring device, Madam Justice Lane stated as follows:

That where there is no evidence raising any doubt or suggesting that the device was not operating properly according to manufacturer's specifications or had not been tested on the day in question, then its results ought to be accepted.

44In the case at bar, Police Officer Springstead testified that on the subject date, he was trained and qualified in the operation of Lidar (laser) speed measuring devices. He stated that on the subject date, at 7:36 p.m., prior to using the subject device to obtain the reading of the speed of Mr. Gray-Rock's motor vehicle at the relevant time, he tested the device in accordance with manufacturer's specifications. He asserted that the results of those tests confirmed the proper functioning of the Lidar at that time.

45The officer testified that at approximately 10:51 p.m., he observed the defendant's motor vehicle travelling in an easterly direction on Dundas Street, approaching his location at the intersection of Lions Valley Park Road, which he opined was travelling at a very high rate of speed. He then aimed the sight of the Lidar device at the front end of the defendant's vehicle and obtained a speed reading for the vehicle of 120 kilometres per hour. There is no evidence before me which suggests that at the material time, the officer failed to operate the laser device correctly.

46However, as stated above, there is no evidence before me that Officer Springstead re-tested the subject Lidar device, to ensure its continued efficacy, after the time that he used it to "capture" the speed of Mr. Gray-Rock's vehicle.

47I must therefore ask myself, whether I am able to take judicial notice of the trustworthiness of the speed reading for the defendant's vehicle at the relevant time, without evidence that the laser device was re-tested in accordance with manufacturer's guidelines after the time of its use to obtain the said speed reading by a qualified operator and that it continued to be working properly at that time.

48After a review of the relevant jurisprudence in respect of this particular issue, I am of the view that I may take judicial notice of the credibility and trustworthiness of the speed measurement obtained by Officer Springstead through the use of his Lidar device in this case. In reaching this conclusion, I have relied on the reasoning enunciated by Casey J. in his appellate-level decision in Regina v. Khalatbari, [2004] O.J. No. 4167 (Ont. C.J.) and as enunciated by A.M. Hourigan J. in her appellate-level decision in Regina v. Meli, [2011] O.J. No. 5341 (Ont. C.J.). I am of the view that the ratio decidendi of both of these decisions is binding on me.

49In my view the Khalatbari and Meli decisions stand for the legal proposition that if a speed measuring device is tested by the trained and qualified operator before its use and found to be in good working order, but there is no evidence that the operator re-tested the device after its use to confirm its continued operability, then it is, nevertheless, open to a trial court to take judicial notice of the accuracy and reliability of the speed reading obtained by the device. In his decision in Khalatbari, it would appear that Mr. Justice Casey took into consideration the dicta of the Ontario Court of Appeal in Vancrey, supra, but concluded that the subsequent testing of a speed measuring device to ensure its proper working order, was not a pre-requisite to a judicial determination that a speed reading obtained by a device tested prior to its use and determined to be in proper working order, was, prima facie, both accurate and reliable.

50In Regina v. Khalatbari, supra, Mr. Justice Casey dismissed the defendant's appeal against his conviction on a charge of speeding. In that proceeding, the appellant argued that the trial jurist erred in convicting him, noting that there was no evidence that the police officer who operated the laser device to obtain the speed reading had tested the device following the time that he used the device to obtain the subject speed measurement. In rejecting the appellant's argument in this regard, Mr. Justice Casey made the following comments at paragraph 6 of his said decision:

In my opinion, what is required is that the Justice be satisfied that the device was operating properly and could do what the officer testified it could. I note that in the decision Sepiashvili [Regina v. Sepiashvili, [2003] O.J. No. 3996 (Ont. C.J.)] Justice Kenkel notes at paragraph 27, 'The fact that a particular device is in working order on a given day, must be established by evidence at trial.'. And further, at paragraphs 35 through 39, 'Now that the reliability of the LTI Marksman 2020 laser speed detection system has been established, evidence that a qualified operator tested the device in accordance with manufacturer's specifications and found the device to be in working order, is sufficient to establish prima facie reliability.'. I note that in this case there was, as there was in the decision Sepiashvili, no evidence that the device was not functioning properly on the day in question, nor was there any suggestion that the investigating officer did not operate the device properly.

51In her decision in Regina v. Meli, supra, Madam Justice Hourigan dismissed the appellant's appeal of her conviction for the offence of speeding. In summarizing the case under appeal, the jurist stated as follows:

In this matter the officer gave evidence that he was trained on this device [a speed measuring device]. He was cross-examined as to his training, and he indicated his training in terms of the actual device. Specifically in relation to the date in question, he gave evidence to the Justice of the Peace that he tested the device prior to his shift and found that it was in proper working order.

There was no evidence adduced at the trial to contradict that evidence by the officer that the device was in proper working order. He was cross-examined about the testing and his knowledge of the device. The Appellant in this Appeal is not arguing that this specific officer had no knowledge as to how to use the device and does not question his expertise, but merely submits to the Court that he should have tested it, perhaps, at the end of his shift, and noted specific times as to the testing of this device.

52In dismissing the appellant's appeal, Madam Justice Hourigan followed the reasoning enunciated in Regina v. Khalatbari, supra, noting that evidence of a speed reading obtained from a recognized speed measuring device may be considered to be prima facie accurate and reliable if, in the words of Mr. Justice Casey, the trial justice "was satisfied that the device was operating properly and could do what the officer testified it could". Madam Justice Hourigan concluded that the trial Justice of the Peace did not err in accepting the trustworthiness of the speed reading obtained by the speed measuring device in that case, even though the officer had not re-tested the device after using it to obtain the speed reading. Effectively the appellate jurist accepted the proposition that if the speed measuring device was tested before its use and found to be in working order, the absence of evidence that the device was not tested after its use to obtain the subject speed reading would not diminish the prima facie accuracy and reliability of the speed measurement, as long as there was no evidence before the court which would raise a reasonable doubt as to the proper functioning of the device at the relevant time.

53In this case, there is no evidence that Officer Springstead re-tested the device after the time that he used it at 10:51 p.m. on the date in question, to obtain the subject speed reading. On the other hand, there is no evidence before me to contradict the officer's opinion that the Lidar device was working properly at the time that he initially tested it at 7:36 p.m. Furthermore, it is noted that Officer Springstead was trained and qualified in the use and operation of the subject Lidar device and there is no evidence before me to raise a reasonable doubt as to his proper operation of the laser device at the material time.

54Accordingly, following the reasoning stated in Regina v. Khalatbari, supra, and Regina v. Meli, supra, I find that the fact that there is no evidence before me that the subject Lidar device was re-tested after its use, does not detract from my ability to afford significant weight to the officer's opinion, as a certified Lidar operator, that the device was operating properly at the material time.

55Based on the totality of the evidence before me, I am persuaded that the Crown has established a prima facie case that the subject laser speed measuring device was operating properly at the time that it was used to record the speed of the defendant's motor vehicle and that Officer Springstead operated it properly when he obtained the speed reading. In light of the fact that there is no evidence before me to contradict the evidence of the speed measurement recorded through the use of scientifically reliable laser technology and based upon the steps taken by Officer Springstead as a certified operator of the subject laser device, to test the particular unit, according to manufacturer's specifications, to ensure its efficacy at the relevant time, I find that the speed measurement of the defendant's motor vehicle recorded by the said device; a rate of speed of 120 kilometres per hour, is both accurate and reliable. The evidence pertaining to the subject rate of speed therefore constitutes proof of that element of the prohibited act of both of the offences of speeding and stunt driving to wit: excessive speed, beyond a reasonable doubt.

THE DECISION

56In light of my finding that the Crown has established all of the elements of the actus reus of the offence of "fail to have an insurance card", contrary to subsection 3(1) of the C.A.I.A., beyond a reasonable doubt, and based on the fact that there is no evidence before me which establishes, on a balance of probabilities that the defendant took all reasonable care in committing the said offence, I find Shawn Gray-Rock guilty of this strict liability offence as charged, and a conviction is entered against him.

57Furthermore, in light of my finding that the Crown has proven all of the essential elements of the actus reus of the offence of speeding, to wit: 120 kilometres per hour in a posted 60 kilometres per hour zone, contrary to section 128 of the H.T.A., beyond a reasonable doubt, I find Shawn Gray-Rock guilty of this absolute liability offence, as charged.

58Additionally, in light of my finding that the Crown has proven all of the essential elements of the actus reus of the offence of stunt driving, to wit: excessive speed – 120 kilometres per hour in a posted 60 kilometres per hour zone, contrary to subsection 172(1) of the H.T.A., beyond a reasonable doubt and based on the fact that there is no evidence before me which establishes on a balance of probabilities that the defendant took all reasonable care in committing the said offence, I find Shawn Gray-Rock guilty of this strict liability offence, as charged.

59In its decision in the case of Regina v. Kienapple (1974), 15 C.C.C. (2d) 524 (S.C.C.), the Supreme Court of Canada determined that a defendant could not be convicted of multiple offences with the same or substantially the same elements arising from the same transaction. In its decision in Regina v. Prince (1986), 30 C.C.C. (3d) 35 (S.C.C.), the Supreme Court of Canada determined that a defendant cannot be convicted of two offences if there is both a factual nexus between the charges, such that the same act grounds each charge, and a legal nexus between the charges.

60In the case at bar, the defendant has been found guilty of two charges arising out of the same delict; the act of driving a motor vehicle at a greater rate of speed than the maximum speed limit of 60 kilometres per hour, to wit: a rate of speed of 120 kilometres per hour. Additionally, it is quite apparent that the charges are based on the same set of circumstances.

61Furthermore, in his decision in Regina v. Raham, supra, Doherty J.A. determined that the offence of speeding simpliciter was an included offence of stunt driving involving an allegation of driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit, contrary to subsection 172(1) of the H.T.A. and section 3(7) of Ontario Regulation 455/07. At paragraph 28 of the said decision, Mr. Justice Doherty made the following comments relative to the legal nexus between the offences of speeding simpliciter and stunt driving, to wit: excessive speed:

The conduct component (actus reus) of the offence under s. 172 as charged against the respondent under s. 3(7) of the Regulation consists of driving a motor vehicle on a highway at 50 km. per hour or more over the speed limit. There is no additional conduct requirement. The same conduct also constitutes the offence of speeding contrary to s. 128 of the Highway Traffic Act. The offence committed by the respondent is, in essence, a speeding offence, no matter what the Legislature may choose to call it.

62I am of the view that the rule against multiple convictions as established in Regina v. Kienapple applies in this case. The defendant may not, therefore, be convicted of both of the offences of speeding, to wit: 120 kilometres per hour in a posted 60 kilometres per hour zone and the offence of stunt driving, to wit: excessive speed – 120 kilometres per hour in a posted 60 kilometres per hour zone.

63In their decision in Regina v. Terlecki (1983), 1983 ABCA 87 , 4 C.C.C. (3d) 522 (Alta. C.A.), at paragraph 25, McDermid, Laycraft and Kerans JJ.A. made the following comments as to the procedure to employ when applying the rule against multiple convictions:

Therefore, unless there is reason to the contrary, the court should indicate whether the accused is guilty of both charges. If found guilty then a conviction should be entered on the more serious charge and a conditional stay on the less serious. If both charges are of equal seriousness, then a conviction should be entered on one and a conditional stay on the other. We say a conditional stay for the conviction should be that the stay is only for the period until the charge on which the accused has been found guilty is finally disposed of on appeal or by the expiration of time for appeal. Ultimately, if the conviction becomes final, the accused would be entitled to a certificate of acquittal on the other charge.

64The procedure enunciated by the Alberta Court of Appeal as set out above, was approved by the Supreme Court of Canada in its decision in Regina v. Terlecki (1983), 22 C.C.C. (3d) 224 (S.C.C.).

65The offence of "driving a motor vehicle on a highway while performing a stunt, to wit: excessive speed – 120 kilometres per hour in a posted 60 kilometres per hour zone", is, in relation to the offence of "speeding, to wit: 120 kilometres per hour in a posted 60 kilometres per hour zone", clearly the more serious offence. Accordingly, the defendant is convicted of the subject charge of stunt driving to wit: excessive speed, contrary to subsection 172(1) of the H.T.A. and a stay of proceedings is entered on the subject charge of speeding, contrary to section 128 of the H.T.A. The stay of proceedings in respect of the speeding charge is conditional until the time when any appeal by the defendant of his conviction for the stunt driving charge has been finally disposed of or at the expiration of the time permitted by law to pursue such an appeal.

Released: October 27, 2015

Signed: "Justice of the Peace Kenneth W. Dechert"