Usha Knabe v. Durham (Regional Municipality)

Date: January 16, 2017

Ontario Court of Justice

Between:

Usha Knabe (Appellant)

— AND —

Durham (Regional Municipality) (Respondent)

Before: Mr. Justice M. S. Felix

Heard on: December 7, 2016

Reasons for Judgment released on: January 16, 2017

Prosecutor: J. Bateman

Counsel for the Appellant: R. Tatangelo

Felix J.:

I. Introduction

[1] On January 29, 2016 the appellant, Usha Knabe, was convicted by a Justice of the Peace of speeding contrary to section 128 of the Highway Traffic Act (Ontario).

[2] She appeals her conviction seeking an acquittal or a new trial.

[3] The appellant submitted four arguments in support of the appeal.

[4] The central argument is that the evidence led concerning the testing of the device used by the investigating police officer to measure speed was deficient. The investigating officer's inability to provide details about the testing of the device, and her reliance on her "usual practice", should have caused the trial justice to doubt the reliability of that evidence. That doubt should have been resolved in favour of the appellant.

[5] The second argument is that the trial justice should not have relied upon the evidence led in support of the investigating officer's qualifications to operate the speed measuring device used to "clock" the appellant's motor vehicle.

[6] The third argument is that the prosecution did not prove that the appellant exceeded the posted speed limit.

[7] Finally, the appellant cited the trial justice's interference in the trial by limiting cross-examination as worthy of consideration by this Court.

II. Procedural Considerations

[8] The trial proceedings were commenced by way of "Part I" certificate.

[9] The appeal is governed by s.135 of the Provincial Offences Act (Ontario).

[10] The appeal is conducted by way of a review: See s. 136(2) Provincial Offences Act. I must review the record and I may reach my own conclusion. I am not obligated to defer to the trial justice except for findings of credibility: R v. Michaud 2015 ONCA 585 paras 37, 45-49; R v. Gill [2003] O.J. No. 4761 (Ont. C.J.).

[11] Notwithstanding Mr. Tatangelo's articulate presentation of the appeal, the decision of the trial justice is affirmed pursuant to section 138(1) of the Highway Traffic Act.

III. Testing of Devices Used to Measure Speed

[12] The central argument on this appeal is that the Crown failed to establish that the device used by the officer was tested properly. The appellant argues that the trial Justice should have had a doubt concerning the reliability and accuracy of the evidence concerning speed.

[13] I do not agree.

[14] The essential elements of speeding contrary to section 128 of the Highway Traffic Act are: (1) the date of the offence, (2) the jurisdiction where the offence was committed; (3) the posted speed limit; (4) identification of the driver; and, (5) the rate of speed of the moving motor vehicle: R v. Williams, [2008] O.J. No. 1078 (Ont. C.J.).

[15] In many speeding trials the investigating police officer's visual perception of excessive speed is bolstered by the use of a device that measures the speed of moving motor vehicles.

[16] The Highway Traffic Act does not set out statutory requirements concerning devices used to measure the speed of moving motor vehicles.

[17] There is no proscribed schedule of "approved devices" mandated by the Ontario Legislature.

[18] There are no provisions governing the standard of training applicable to police. Nor are there statutory provisions concerning the maintenance, calibration, and use of the devices used to measure the speed of moving motor vehicles.

[19] The Quebec Court of Appeal has set out specific evidence that must be led by the prosecution to establish the officer's training and testing of the speed measuring device: See Baie-Comeau (Ville) c. D'Astous (1992), 74 C.C.C. (3d) 73 (Que. C.A.).

[20] While the Ontario Court of Appeal has not endorsed the granular specifics outlined by the Quebec Court of Appeal, the Court has endorsed a requirement that there be some evidence concerning the reliability of the device used to measure speed. In R v. Vancrey, [2000] O.J. No 3033 (Ont. C.A), the Ontario Court of Appeal articulated this requirement as follows:

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 the manufacturer's instructions to ensure that 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 the accuracy of the particular laser unit to measure the speed of a moving vehicle. [Para 21-22]

[21] The trial justice received evidence from the only witness at trial -- Police Constable Cornes. Police Constable Cornes testified to the following information concerning the device she possessed for measuring the speed of moving motor vehicles:

1. It was a Genesis II Select Radar Device serial # GS18054;
2. It is a device used by the police to monitor or record the speed of approaching motor vehicles;
3. That she was a trained operator of the device; and,
4. That she could not remember the date, but she believed she had been trained sometime in 2013 (prior to this offence) and she received a certificate memorializing this event.

[22] With respect to the officer's qualifications, I acknowledge that a more thorough recitation of those qualifications would be preferable. The officer was seemingly ill-equipped to answer basic questions about her qualifications. She could not remember specifically when she received training concerning the device. She speculated that she received a certificate memorializing her training but could not be specific. She did not know if there were any re-qualification protocols required by the Durham Regional Police Service.

[23] The trial justice held, (correctly in my respectful view), that the qualifications of the officer are not an essential element of the offence: See R v. Xu, 2012 ONCJ 278. Notwithstanding the deficiencies in the officer's testimony, the trial justice clearly accepted that the officer was qualified because of her experience in using the particular device.

[24] The record before the trial justice supports her factual finding that the investigating officer had sufficient training and experience with the particular device: R v. He, [2003] O.J. No 2254 (Ont. C.J.) leave to appeal ref'd [2003] O.J. No. 2257 Ont. C.A.).

[25] The reasons of the trial justice demonstrate her application of the law in this regard.

[26] Given Baie-Comeau is not the law in Ontario and there are no statutory prerequisites to the admission of the evidence there is no basis to interfere with the trial justice's finding that the officer was qualified to use the device. The issue is one of weight, not admissibility.

IV. Testing of the Device

[27] The trial justice received the following evidence from the investigating officer concerning the testing and proper functioning of the device she possessed:

1. That the device was working properly on the day in question;
2. That she performed a function test on the device at the commencement of her shift at 12:00 noon as well as shortly after issuing the ticket -- both times the device was working properly;
3. That she was trained to perform the tests at the beginning of her shift and after each speeding-related offence;
4. That the testing was part of her daily routine;
5. That she made notes concerning her testing of the speed device;
6. That she tested the device pursuant to the manufacturers instructions;
7. That the test time of 12:00 noon was specifically noted in her notes;
8. That she did not specifically note the time of the test performed after issuing the offence notice to the appellant;
9. That she did not know the name of the manufacturer of the device;
10. That she read the manufacturer's instructions for the device when she was trained;
11. That she did not have any training subsequent to her initial training and was not aware of any requalification protocols mandated by the Durham Regional Police Service;
12. That one manufacturer's test she performed was a comparison between the speedometer in the cruiser and the radar device. This test was performed at 12:00 noon;
13. She did not recall the speed at which she performed this test.
14. The fact that this test was performed was not recorded in her notes.
15. Notwithstanding the fact that the manufacturer instructions mandate testing the radar facing the rear of the cruiser and the front of the cruiser, the investigating officer only tested the front-facing radar because she does not use the rear-facing radar;
16. The investigating officer did not note the time she tested the device at the completion of her shift;
17. Comparing the accuracy of her speedometer to the radar device is something she does throughout her whole shift; and,
18. She performed a test of the accuracy of the device after every single speeding-related offence notice she issued that shift.

[28] Once again, I agree with the appellant's submissions that the investigating officer could have maintained better notes about the testing of the device. Better notes might have enabled her to provide more detail. For example, more detail about the comparison test between her speedometer and the device might have been available. While not litigated in the record at trial, the manner in which notes are created and maintained electronically may be a factor affecting officers and their ability to track notes across several different investigations. This is an issue that was not fulsomely addressed at trial so it is of no significance on this appeal.

[29] It is true that the prosecution must be in a position to provide sufficient detail concerning the testing of the device. The prosecution relies upon the investigating police officer to note this specific detail. To the extent this evidence is not noted, unavailable, or deficient, a trial justice may not find that the device was accurate or reliable.

[30] A number of cases address the phenomenon of a "usual practice" and whether this circumstantial evidence addresses the reliability and accuracy of the speed measuring device. The appellant argues that the investigating officer's evidence in this case amounts to a reliance on her "usual practice".

[31] I respectfully disagree.

[32] The record presented to the trial justice was more than just a reliance on "usual practice".

[33] The trial justice correctly held that the manufacturer's instructions are not statutory requirements: R. v. Volfson, [2009] O.J. No 1978. The manufacturer's manual was not made an exhibit so it is unclear to this Court what is precisely "required" overall by the manufacturer's instructions. Based on the excerpts provided to the investigating officer there are no concerns worthy of interference.

[34] Furthermore, I am not troubled by the officer's failure to test the rear-facing speed detection function – a feature of the device that she does not, and did not use.

[35] Really, the issue at trial concerned the weight to be placed upon the evidence received rather than its admissibility.

[36] The crux of the matter is that the device was tested prior to the investigation concerning the appellant. The device was also tested numerous times after the investigation concerning the appellant. The officer testified that she essentially tested the device on each subsequent use. While she could not provide the number of times she used it after the appellant the fact remains that the device was working properly in her subjective view.

[37] I find that the record was sufficient to support a finding that the device was operating properly at the time the appellant was investigated.

V. Limiting Cross-examination

[38] The trial justice limited the cross-examination on the colour of the motor vehicle.

[39] The officer did not have a notation in her notes of the colour of the motor vehicle nor did she have an independent recollection of the colour of the motor vehicle.

[40] I adopt the learned observations made by Justice P. Tetley in R v. Strati 2014 ONCJ 139 at paras. 11 – 22 on this issue. Caution should be exhibited in limiting cross-examination on a relevant issue.

[41] That being said, considering the record as a whole, limiting cross-examination did not significantly impact the trial.

VI. Evidence of the Posted Speed Limit

[42] Neither party addressed the issue of judicial notice and posted speed limit signs: See R v. Potts (1982), 36 O.R. (2d) 195 (Ont. C.A.) application for leave to appeal dismissed [1982] S.C.C.A. No 301 (S.C.C.); R v. Bland, [1974] O.J. No 2139 (Ont. C.A.); R v. Clark [1974] O.J. No 1904 (Ont. C.A.).

[43] Leaving that issue aside I find that the investigating officer provided sufficient testimony concerning the posted speed limit for the trial justice to be satisfied concerning that essential element.

[44] The appeal is dismissed. The finding of the trial justice is affirmed.

Released: January 16, 2017

Signed: "Justice Felix"