ONTARIO COURT OF JUSTICE (PROVINCIAL OFFENCE APPEAL)

DATE: 2022·07·08 NEWMARKET

BETWEEN:

YORK (REGIONAL MUNICIPALITY) Respondent

— AND —

IGOR IAGOLNIK Appellant

REASONS FOR DECISION

Submissions Heard: June 30, 2022. Reasons Delivered: July 8, 2022.

Counsel: Mr. Chris Bendick............................................................................... Counsel for York Region Mr. Frank Alfano .............................................................................. Paralegal for the Appellant

KENKEL J.:

Introduction

[1] Mr. Iagolnik was charged with speeding contrary to s 128 of the Highway Traffic Act, RSO 1990 c H.8 (HTA). At trial the prosecution case was tendered by way of a certified statement of evidence under s 48.1 of the Provincial Offences Act, RSO 1990 c P.33 (POA). The defendant did not call evidence.

[2] These reasons discuss several issues arising from two grounds of appeal:

• Whether the learned Justice of the Peace erred when he refused an adjournment because the prosecution proceeded by way of certified statements,
• Whether the court erred in finding that the evidence in the certified statements was sufficient to prove the charge alleged beyond a reasonable doubt.

Certified Statement of Evidence

[3] When a person is charged with a traffic offence, they are served with an offence notice. The officer also completes a Certificate of Offence which is the charging document filed with the court to commence the proceeding. The Certificate of Offence is a regulated form under the POA – Form 1 O Reg 108/11 s 2(1).

[4] A Certificate of Offence sets out statements by the officer including:

• The charging officer’s identification
• The date, time and location of the alleged offence
• The name, address, driver’s license number and the date of birth of the person charged
• The plate number of the driver’s vehicle
• The specifics of the offence alleged – (in this case vehicle speed and the posted speed limit in that area)
• The fact that an Offence Notice was served on the person charged
• The set fine for the offence
• A summons to appear in court on a specified date, at a specified location and time.

[5] The officer completing a Form 1 Certificate of Offence must certify that they believe the statements to be true. The certified statements are proof of the facts certified in the absence of evidence to the contrary – s 48.1(2) POA. Whether the prosecution calls a witness to testify or relies on certified statements, they always bear the burden to prove their case beyond a reasonable doubt – s 48.1(4).

[6] Schedule 35 of the Stronger, Fairer Ontario Act (Budget Measures) SO 2017 c 34, amended s 48.1 to permit the use of certified statements where the proceeding was commenced by way of a Certificate of Offence under Part I or Part II of the POA and a set fine is specified for the offence. The statutory amendments also revoked s 1 of Ontario Regulation 132/14 Certified Evidence under the POA which had precluded the use of certified evidence for speeding offences or for offences that carry demerit points.

Adjournment for the Officer to Attend

[7] The agent for the defendant at trial advised the Justice of the Peace that without the officer as a prosecution witness, the defence could not cross-examine as to the circumstances of the speed measurement. The Justice of the Peace ruled that the trial should proceed.

[8] Section 48.1(5) provides that an officer who records certified evidence via a statement in a Certificate of Offence shall not be required to attend to give evidence unless the court finds under s 49(4) that an adjournment for the oral evidence of that person is necessary to ensure a fair trial. Such an adjournment should not be routinely granted as to do so would defeat the purpose of the section. The Justice of the Peace was right to direct that the trial proceed.

Adjournment for the Accused to Attend

[9] Given the court’s ruling that the matter should proceed, the agent for the defendant did not ask for an adjournment so the accused could attend.

[10] A defendant in a highway traffic matter cannot be compelled to attend their trial in-person. They may choose to attend, or they may have a representative appear on their behalf – s 50(1) POA.

[11] A defendant who chooses not to attend their trial gives up several rights including the right to testify. A defendant with relevant evidence to give must always attend their trial. Virtual proceedings make that much more convenient for all parties.

[12] Busy provincial offence courts cannot adjourn and repeat trials simply because one of the parties wishes to reconsider or change trial tactics. Both parties must be ready to proceed on the trial date regardless of the way the prosecution presents their evidence.

Evidence to the Contrary

[13] Evidence admitted by way of certified statement is proof of those facts, subject to consideration of evidence to the contrary – s 48.1(2).

[14] As the prosecution evidence in these cases relies solely upon the certified statement, there typically will be no evidence to the contrary found in the prosecution case. This means that where the Certificate of the Offence sets out evidence that otherwise proves the prosecution case, the evidentiary burden shifts to the accused to call evidence to the contrary. The defence may call evidence contesting any or all of the assertions in the certified statement.

[15] Where the prosecution evidence is sufficient to give rise to an evidentiary burden on the defendant to respond, it’s important to remember that the legal burden never shifts. The burden is always upon the prosecution to prove the charge alleged beyond a reasonable doubt. That’s why defence evidence to the contrary need only leave a reasonable doubt – R v Boucher, 2005 SCC 72.

Speculation is Not Evidence to the Contrary

[16] In York (Regional Municipality) v Lai, 2022 ONCJ 317, a similar certified statement appeal heard on the same day as this matter, the trial court held that the basic evidence in a Certificate of Offence leaves open “many unanswered questions” and thus a reasonable doubt must remain.

[17] The submissions in that trial identified the “unanswered questions” as an argument in this form:

• We don’t know if a speed measurement device was used.
• If a device was used, maybe that device wasn’t recently calibrated.
• Maybe that device was no longer in working order,
• Maybe the device was malfunctioning to such a degree that it displayed a false speed reading.

[18] The submissions in Lai were not based on any inference arising from the evidence before the court. A trial court must consider alternate theories proposed by the defence, but those theories must be based on inferences reasonably arising from the evidence, not speculation – R v Villaroman, 2016 SCC 33 at para 42. In a similar manner, the theoretical possibility of device error as would be present in any case does not assist the defendant – R v Crosthwait, [1980] SCJ No 30. Mere conjecture is not evidence to the contrary. The appeal in Lai was allowed as conceded by the respondent on that basis.

Are There Pre-Conditions to the Admissibility of Speed Measurement Evidence?

[19] The appellant submits that the courts have established pre-conditions to the admissibility of speed measurement evidence for RADAR (Radio Detection and Ranging), and LIDAR (Light Detection and Ranging – LASER) and for speed measurement by vehicle pace. Where the prosecution does not call an officer to testify, there is no evidence that meets the pre-conditions for the admissibility of the speed evidence. The statutory amendment notwithstanding, the prosecution cannot circumvent the established requirements and must call viva voce evidence in every case.

[20] The appellant cited R v Vancrey, [2000] OJ No 3033 (CA) as establishing pre-conditions for the admissibility of LIDAR evidence, and R v Bland, [1974] OJ No 2139 (CA) as setting out pre-conditions for speed evidence by vehicle pace. The case of R v Grainger, [1958] OJ No 218 (CA) discusses the admissibility of RADAR speed detection evidence. The brief endorsement in R v Bigioni, [1988] OJ No 2220 (CA) mentions evidence regarding a RADAR unit that was found sufficient in that case, but note the issue at trial [1987] OJ No 2481 (Prov Ct)](https://www.canlii.org/en/on/onpc/doc/1987/1987canlii4691/1987canlii4691.html), was whether a police officer’s evidence regarding the operation of the radar device was sufficient to answer a challenge in that regard.

[21] As Justice Fairgrieve explained in R v Le, [2002] OJ No 894 (CJ) at paragraph 5, the Court of Appeal in Vancrey found that the evidence in that case was sufficient to establish the accuracy and reliability of a LIDAR laser speed measurement device. LIDAR devices had been in use at least 7 years prior to that decision, but Vancrey was the first appellate challenge to such devices as novel technology. The Court of Appeal did not state that such evidence was required in every case. Decades later, the admissibility of evidence from RADAR, LIDAR and vehicle pacing is no longer the subject of reasonable dispute. A defendant may challenge the operation of a device or the functioning of a particular device, but the prosecution is no longer required to prove the general reliability of RADAR or LIDAR devices for speed measurement.

[22] It’s important in this context to distinguish between the admissibility of speed detection evidence and the weight to be given to that evidence. Where the prosecution calls an officer to testify, they will typically establish the circumstances of testing including any steps taken to ensure the device was in working order. The prosecution calls that evidence not to prove the admissibility of that mode of speed detection (LIDAR, RADAR, Pace), but to show what weight if any should be given to the speed measurement evidence.

[23] The decisions cited above do not prescribe steps that must be taken in every case. They discuss steps officers took in those cases that led to a finding that the speed detection evidence was reliable. Failure to follow a particular step may or may not leave a doubt about the reliability of the speed measurement depending upon the rest of the evidence in the case. For example, failure to follow a step in a device manual does not automatically mean that the device readings were inaccurate, or the results were unreliable – R v Jennings, 2018 ONCA 260, Kirshen v York (Regional Municipality), 2019 ONCJ 313. Evidence that may be crucial in one case may not be important in another. Upgrades in device technology over time render obsolete certain testing or calibration practices and introduce others. The task of the Justice of the Peace always remains the same – to decide on the whole of the evidence whether a reasonable doubt remains.

[24] In this case there was no witness. Where the prosecution proceeds by way of certified statements under s 48.1 of the POA, those statements are deemed admissible and they are deemed proof of the facts certified subject to consideration of any evidence to the contrary – s 48.1(2). Nothing further is required.

The Verdict

[25] Section 128 of the HTA prohibits driving a motor vehicle at a speed greater than the posted maximum. The Justice of the Peace reviewed the Certificate of Offence and found that it was signed by the officer and was regular in form with no deficiencies. He found those statements were sufficient to prove the offence alleged and there was no evidence to the contrary. There was no error in that finding. Where the only evidence before the court proves every element of the offence, a finding of guilt must result.

Conclusion

[26] The certified statements were admissible and deemed proof of those facts in the absence of evidence to the contrary. While that relieves the prosecution of calling a witness to establish the basic elements of the offence, it provides no further advantage. The prosecution still must prove the charge alleged beyond a reasonable doubt.

[27] The minimal certified statements are plainly vulnerable to challenge. Evidence that may leave a doubt in this context might be as simple as the sworn testimony of the defendant that is accepted or survives cross-examination to the extent that it leaves a doubt – S. Hutchison, D. Rose, P. Downes The Law of Traffic Offences, 4th ed Toronto Thomson Reuters 2018 at 152. The lack of context to the brief assertions in the Certificate of Offence provides little support when that evidence is challenged by evidence to the contrary.

[28] The learned Justice of the Peace did not err in ruling that the trial should proceed. The verdict was the only one available on the evidence before the court. The appeal is dismissed.

Delivered: July 8, 2022. Justice Joseph F. Kenkel