minicounsel

Ontario Court of Justice Toronto, Ontario

Case Name: R. v. Zacharias

Citation: [2015] O.J. No. 5808; 2015 ONCJ 625

Before: J. Opalinski J.P.

Heard: May 8, 2015

Delivered: August 18, 2015

Prosecution: R. Patterson

Defence: G. Shapiro, Agent for the Defendant

Introduction

Santhosh Zacharias (hereinafter referred to as the defendant) is charged on the 9th day of September, 2014 at 1:50 pm., northbound on Renforth Drive, in the City of Toronto, with the offence of speeding 62 kilometers per hour in a 40 kilometer zone, contrary to section 128 of the Highway Traffic Act, R.S.O. 1990 c. H.8.

The defendant by way of his agent Mr. G. Shapiro entered a plea of not guilty on May 8, 2015. The court heard evidence only from Toronto Police Officer Hong.

Charges

Section 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

The 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 before and at the end of his shift and whether or not failure to write down the time of the test in his notebook invalidates the evidence given viva voce by the officer at trial whereby he indicates the time of the testing of the device?

Argument for the Prosecution

The prosecution submits that the officer's evidence is clear, concise and reliable. In his evidence in chief, the officer stated that he tested the laser unit, according to manufacturer's specifications at the beginning and at the end of his shift. While the times of the testing are not specified in the officer's notes, this does not invalidate the viva voce evidence of the officer that he did test the device at specific times. The defence called no evidence to refute that the laser device was not working properly and tested properly inasmuch as there was little cross examination by the agent for the defendant with regard to what tests were conducted on the unit. The issue before the court is that of speeding and the evidence of the officer is that the defendant was travelling in excess of the speed limit.

Argument of Defence Agent

The 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 did not state the time he tested the device and that in the absence of this evidence the prosecution has not relieved its burden of proving the case beyond a reasonable doubt. The officer's viva voce evidence was that he tested the device but did not make a note of the testing time in his notebook. In the absence of such a note in his notebook the court should not conclude that the test was actually done and as such that the device was working properly. The testing time of the device is an essential element of the offence, which the prosecution must prove for the defendant to be found guilty and this was not done.

Evidence for the Prosecution

The court heard evidence from Toronto Police Officer Andrew Hong.

The evidence of Officer Andrew Hong may be summarized as follows:

(a) On September 9th, 2014 at approximately 1:50 pm, Officer Hong was situated on Renforth Drive on the west side of the roadway in a Toronto Fire Hall driveway for the express purpose of speed enforcement on Renforth Drive.

(b) At the beginning and at the end of the officer's shift, he tested the laser speed-measuring device, a LT1 ultra LRB light unit with serial number UXO27679, according to manufacturer's specifications. The officer's shift began at 12 noon and ended at 9 pm. The unit was found to be working properly upon both tests being conducted and is capable of accurately measuring the speed and distance of moving vehicles.

(c) At approximately 1:50 pm the officer observed the defendant travelling northbound on Renforth Avenue, in the City of Toronto in the passing lane, at what appeared to be a high rate of speed. The defendant was driving a BMW 323 motor vehicle, four door grey in colour, with personalized licence plates reading SANTOSHZ.

(d) He targeted the front of the defendant's vehicle and the laser device measured the defendant traveling at a speed of 62 kilometers per hour in a 40 kilometer zone at a distance of 126.9 meters away.

(e) The officer never lost sight of the defendant's vehicle and had a clear and unobstructed view of the vehicle.

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

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

(h) There are posted signs indicating 40 kilometers as the speed for traffic travelling both northbound and southbound on Renforth Drive.

Evidence for the Defence

The defendant chose to call no evidence.

The Law

10.

The Law

The defendant is charged with the offence of speeding 62 kilometers in a 40 kilometer zone contrary to section 128 of the Highway Traffic Act supra.

The Defendant's agent presented to the court 11 cases, 8 of which are relevant and will be briefly summarized.
The 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.
The 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.
The 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'.
The 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.

In 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.
In R. v. Proctor 997 CarswellOnt 6419, the court stated that 'it is not sufficient to make that quantum leap by simply stating that testing was done before and after the incident as being necessarily the incident before the court'. Consequently, the court ruled that 'there was no evidence as to when the before and after was' and as such the conviction was overturned.
In 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)
The 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 are to be complied with.
In the case of R. v. Schlesinger 2007 CarswellOnt 3845, the court found that before the court can convict a defendant of the offence of speeding, it must be satisfied that the tests performed on the laser unit have been done by a qualified officer according to manufacturer's specifications and that these tests have been done at a specific time before and after dealings with the defendant in question. As the court was not satisfied that the officer's evidence stated a specific time when the testing was performed, the court dismissed the charges. It was not enough for the officer to say that it was his usual practice to test a laser device before and after a speed enforcement stop.
The court in Durham (Regional Municipality) v. Zhu 2011 ONCJ 193, after a very detailed analysis of the case law, found that the 'standards of evidence necessary to establish a prima facie case include that the speed measuring device tests have been completed according to manufacturer's specification by an officer who is both trained and; that the device passed the tests; and that there is either evidence in the officer's notes or provided through viva voce that the tests were done both before and after a speed enforcement stop, and that they indicated the machine in question was functioning properly. Usual practice is not necessarily best practice, and the perception that justice is done is as important as it is that justice is done'. (at para 118-119) In this case a reasonable doubt was created, as the words, 'usual practice', was not sufficient proof beyond a reasonable doubt that the required test had been performed on the day in question.
In the case of R. v. Hayes 2005 CarswellOnt 10242, the court commented that it was not acceptable to have the officer indicate that he does not make notes unless something goes wrong. Officers should be making accurate and complete notes. These were the thoughts of the court although the judge was not asked to rule on this point but merely determine whether or not the motion will be granted.
R. v. Newton [1996] O.J. No. 5360, stands for the proposition that a court cannot take judicial notice of the functioning of a machine.
Moreover in 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 the police officer was familiar with the unit and the manner in which it was intended to be used.

The court found that the trial justice did not err in law and dismissed the appeal.
At the same time the court in the decision of R. v. Volfson [2009] O.J. No. 1978, 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)
This court further notes that in R. v. Sepiashvili [2003] O.J. No. 3996, the tests performed were done according to manufacturer's specifications before and after dealing with the defendant; no specific times were mentioned and the officer was qualified in the operation/use of a laser device. As is the situation in the case at bar, there was no evidence called to show a defect in the device or in its operation. (at para 39) On the contrary, the defence elected to call no evidence. Consequently, the court found that the Justice of the Peace 'was entitled to conclude that the measurement of speed by that instrument was sufficient proof of that element of the alleged offence'. (at para 39)

Analysis

As indicated in the case of R. v. Raina, [2013] O.J. No. 2562, this court held that it does not accept the reasoning contained in R. v. Volfson, supra, and found that if the readings of the speed-measuring device are to be accepted as evidence to make out one of the essential elements of the offence of speeding, which is the speed at which the moving motor vehicle was traveling, by corroborating the officer's visual observation, then, 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.
In 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.
The defendant's agent through cross-examination has raised the point that the officer's notes do not contain any information as to the time or even when he tested the unit.
As echoed in R. v. Raina, supra, this court finds that the officer's notes are there for the purpose of refreshing his memory as to specifics. When the notes were qualified the officer indicated he had an independent recollection. His viva voce evidence was that he tested the device at the beginning of his shift and at the end of his shift according to manufacturer's instructions, and the device was found to be working properly.
In re-examination, the officer further stated that the times at which he tested the device, would have been at 12 noon and then at 9 pm. The officer further indicated that both times when the unit was tested it was found to be working properly and that the unit remained in his possession and control. If I accept the argument submitted by the defendant's agent as echoed in the decision of R. v. Schlesinger, supra, to the effect that it is necessary to specify the exact times when the unit was tested, the officer did indicate that in his evidence.
The laser unit corroborates the visual observation of the officer and the reason why the court has to be satisfied as to the accuracy of this unit is so that it can rely on the veracity of this evidence, beyond a reasonable doubt.
The agent for the defendant offered no evidence to contradict the veracity of the reading emitted by the laser unit. Indeed he did not even cross-examine the officer with respect to his training or the tests that were performed by the officer to establish that the unit was working properly. The officer did, however, indicate in his evidence that the unit was tested according to manufacturer's specifications and in the absence of any evidence to the contrary, this court accepts that the unit was functioning properly and as such the court accepts the reading of the unit. Consequently, the court finds that one essential element of the offence, has been made out by the prosecution beyond a reasonable doubt.
This court further finds that it is sufficient for the officer to indicate when and how the unit was tested in his viva voce evidence and that the absence of the testing time in his notes does not create a sufficient doubt in the mind of the court, nor does it negate the viva voce evidence that was given by the officer at trial. The court accepts this evidence.
The court further 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, unless the court is satisfied that the person who tested the device was trained and qualified to do so.
The Court of Appeal in R. v. Sim, supra, indicated 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. The defence did not adduce any evidence to the contrary nor create any doubt through cross-examination of the police officer that would refute the evidence of the officer who indicated that he was trained and qualified in the use of the laser unit.

Disposition

38.

Disposition

For 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 62 kilometers in a 40 kilometer zone on September 9, 2014. The court finds the defendant guilty of contravening section 128 of the Highway Traffic Act, supra.

Dated the 18th day of August, 2015, at the City of Toronto

"J. Opalinski"

Joanna Opalinski J.P.

Corrigendum

Released: November 25, 2015

Corrigendum

On August 18, 2015 I rendered judgment in the above matter.

While delivering my oral judgment I indicated in the introduction that the defendant's vehicle was travelling 'southbound' while in paragraph 1 of my written judgment reference is made to the defendant's vehicle travelling 'northbound'.
I am satisfied that there is no prejudice to the defendant whatsoever as in both the body of my oral judgement and written judgment the direction in which the defendant's vehicle is travelling is referenced as 'northbound' which is the evidence that I accepted.
Accordingly, I make this corrigendum solely for clarification purposes.

Dated the 25th day of November, 2015, at the City of Toronto.

"J. Opalinski"

Joanna Opalinski J.P.

Ontario Court of Justice Toronto