Her Majesty the Queen v. Kee

[Indexed as: R. v. Kee]

Ontario Reports

Court of Appeal for Ontario,

Strathy C.J.O., Lauwers J.A. and Speyer J. (ad hoc)

October 29, 2015

127 O.R. (3d) 518 | 2015 ONCA 730

Case Summary

Criminal law — Provincial offences — Highway traffic offences — Speeding — Radar devices — Defendant arguing based on manual for radar device that results inaccurate because it was two lanes away from defendant's car and unit reliable only in same or adjacent unit — Trial and appeal judge correctly holding that police officer using radar device properly where patrol car was located on shoulder of road and defendant's vehicle was at least two lanes away. [page519]

The defendant was found guilty of speeding and stunt driving (which is, among other things, driving at more than 50 km over the speed limit). The charging officer used a radar device known as the BEE III Automatic Same Direction Traffic Radar ("BEE III") to clock the defendant's vehicle while the officer's patrol vehicle was stationed on the shoulder of a three-lane highway and the defendant's vehicle was in the middle lane. The conviction was affirmed on appeal. The defendant appealed. The appeal turned on the proper interpretation of a phrase in the operation and service manual for the BEE III: "ASD (Automatic Same Direction) technology allows the operator to select lane of traffic to monitor in stationary mode: in the same lane as the patrol vehicle or the opposite lane, or in both lanes". The defendant argued, as he had in the court below, that the phrase means that, when the patrol vehicle is stationary, the BEE III can only be used to monitor traffic travelling in the same lane as the stationary vehicle or in a directly adjacent lane, and that the charging officer could not have been operating the BEE III in accordance with the manufacturer's specifications as the patrol vehicle was on the shoulder of the road and the defendant's vehicle was at least two lanes away.

Held, the appeal should be dismissed.

The appeal judge correctly interpreted the disputed phrase, in light of the manual as a whole, to mean that the operator can select whether to monitor traffic coming towards or moving away from a stationary patrol car parked on the shoulder of the highway. The charging officer used the BEE III properly.

R. v. Chaudhry, [2012] O.J. No. 3919, 103 W.C.B. (2d) 822, 2012 CarswellOnt 10472 (C.J.), not folld

R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171, apld

Other cases referred to

R. v. 1275729 Ontario Inc., 2005 47589 (ON CA), [2005] O.J. No. 5515, 205 O.A.C. 359, 203 C.C.C. (3d) 501, 25 M.V.R. (5th) 157, 68 W.C.B. (2d) 212 (C.A.); R. v. Kee, [2013] O.J. No. 6455 (C.J.); R. v. Levesque, [2000] 2 S.C.R. 487, [2000] S.C.J. No. 47, 2000 SCC 47, 191 D.L.R. (4th) 574, 260 N.R. 165, J.E. 2000-1934, 148 C.C.C. (3d) 193, 36 C.R. (5th) 291, 47 W.C.B. (2d) 351

Statutes referred to

Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 128 [as am.], 172(1) [as am.]

Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 117(1)(d), 134, 139 [as am.]

APPEAL from the judgment of Cavion J., [2013] O.J. No. 6455 (C.J.) affirming the conviction entered on June 22, 2012 by Justice of the Peace J. Jackson.

Scott Bergman and Benjamin Elzingacheng, for appellant.

Amy B. Rose, for respondent.

The judgment of the court was delivered by

[1] LAUWERS J.A.: — At the conclusion of oral argument, the appeal was dismissed with reasons to follow. These are those reasons. [page520]

A. Context of the Appeal

[2] The facts are not in dispute. From his patrol vehicle stationed on the left shoulder of the three-lane highway, the charging officer observed the appellant, Hyon Woo Kee, driving at a high rate of speed moving eastbound on the Fred Gardiner Expressway in Toronto, Ontario. The posted speed limit was 100 km/h. The charging officer "clocked" the appellant's motor vehicle moving 154 km/h while the vehicle was in the middle lane, using a radar device known as the BEE III Automatic Same Direction Traffic Radar (the "BEE III"),

[3] The officer pulled the appellant over and charged him with speeding and stunt driving, contrary to ss. 128 and 172(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA"), respectively.

[4] The trial justice was satisfied with the charging officer's evidence and found the appellant guilty on both counts. At the request of the prosecutor, the speeding charge was stayed. The trial justice did not have the manufacturer's operation and service manual for the BEE III Automatic Same Direction Traffic Radar (Canadian Version) (the "manual") before him. On appeal, Cavion J. admitted the entire manual as fresh evidence on consent.

[5] This appeal turns on the proper interpretation of a single phrase in the manual (p. 15):

ASD (Automatic Same Direction) technology allows the operator to select lane of traffic to monitor in stationary mode: in the same lane as the patrol vehicle or the opposite lane, or in both lanes.

[6] The appeal judge interpreted the disputed provision, having regard to the manual as a whole, in favour of the Crown. In the absence of evidence to the contrary, he determined that the radar device's reading was accurate and reliable, and dismissed the appeal: R. v. Kee, [2013] O.J. No. 6455 (C.J.). His interpretation was diametrically opposite to the one reached in R. v. Chaudhry, [2012] O.J. No. 3919, 2012 CarswellOnt 10472 (C.J.).

[7] MacFarland J.A. granted leave to appeal to this court under s. 139 of the Provincial Offences Act, R.S.O. 1990, c. P.33 ("POA") on the following grounds:

There are two appellate decisions of the Ontario Court of Justice which have considered the language used in the Operation and Service Manual for the BEE III Automatic Same Direction Traffic Radar (Canadian Version) and come to opposite conclusions.

In my view, it is in the interests of the administration of justice that this conflict be resolved.

[8] For the reasons set out below, I would dismiss the appeal. [page521]

[9] I begin with reviews of the decisions of the trial justice and the appeal judge. I then turn to the Crown's fresh evidence application and the analysis of the issues.

B. The Decision of the Justice of the Peace

[10] At trial, the appellant was self-represented and did not lead any evidence or testify. He cross-examined the charging officer on his qualifications, training, familiarity with the BEE III and standard operating procedures.

[11] The charging officer testified that he was trained and qualified to use the BEE III device; he tested the device before his shift and found it to be in proper working order; the device self-tests every 20 minutes; and he tested the device at the end of his shift and again found it to be in proper working order.

[12] The officer testified to the facts set out above. His evidence at trial was that the appellant drove his grey Honda Civic aggressively, moving in and out of traffic, switching between the far right and the middle lanes. When the appellant's vehicle was about 30 yards back from the patrol vehicle, the officer's BEE III radar device locked in on the appellant's motor vehicle and recorded that it was moving at 154 km/h in a 100 km/h zone in the middle of three lanes. The officer testified that when the appellant's vehicle passed the patrol vehicle, he saw the front of the appellant's vehicle dip sharply and rear brake lights come on, signifying that the appellant applied the brakes with force.

[13] The trial justice accepted the evidence of the charging officer as credible and admitted the evidence regarding the BEE III reading as reliable and accurate. He found that both charges were proven beyond a reasonable doubt. At the request of the Crown, the speeding charge was stayed. The trial justice sentenced the appellant to pay a $3,000 fine, as requested by the Crown, "keeping in mind the principles of denunciation and deterrence . . .".

C. The Decision of the Appeal Judge

[14] As noted, the appeal judge admitted the entire manual on consent, and the appeal turned on the interpretation of the disputed phrase, reproduced here for convenience:

ASD (Automatic Same Direction) technology allows the operator to select lane of traffic to monitor in stationary mode: in the same lane as the patrol vehicle or the opposite lane, or in both lanes.

[15] The appellant, assisted by an agent, argued that the disputed phrase meant that, when the patrol vehicle is stationary, the BEE III can only be used to detect the speed of motorists if it [page522] is located in the same lane of traffic as the patrol vehicle, or in the adjacent lane. Since the patrol vehicle was on the shoulder of the road, and the appellant's vehicle was at least two lanes away, the appellant submitted that the charging officer could not have been operating the BEE III in accordance with the manufacturer's specifications. The appellant was not "in the same lane as the patrol vehicle or the opposite lane" which he had to be, since the officer was "in stationary mode", according to a strict reading of the disputed provision. The appellant relied on Boivin J.'s decision in Chaudhry as authority for his proposed interpretation.

[16] In Chaudhry, Boivin J. stated, at para. 6:

The fact that the officer acknowledged the manufacturer guidelines, and disagreed with them, and his suggestion that they are absurd cannot constitute evidence that the machine was operated in accordance with the guidelines such that I can rely on this reading, when done, in contravention with those guidelines. The radar device is a precision instrument and reliance on such can only be done if it is operated in accordance with manufacturer guidelines.

[17] Boivin J. concluded, at para. 7, that the speed reading was not reliable because the BEE III device "was not, operated in a lane, which the manufacturer says the operation should be conducted in". Boivin J. allowed the appeal and entered an acquittal.

[18] Relying on Chaudhry and the evidence, the appellant argued that the BEE III's speed reading obtained by the officer did not satisfy the exception to the hearsay rule and could not lead to a conviction.

[19] The appeal judge declined to follow the decision in Chaudhry, stating, at para. 13, that if Boivin J. had had the opportunity to review the entire manual, and had he "been advised of these sections, I am confident he would have decided differently".

[20] The appeal judge found, at para. 10, that the appellant's "rigid interpretation is not accurate" and that such an interpretation "makes the instrument impractical to use on stationary mode on any busy highway". Reading the manual as a whole, the appeal judge interpreted the disputed phrase to mean that the operator can select whether to monitor traffic coming towards or moving away from the stationary patrol vehicle: para. 12.

D. Fresh Evidence on Appeal

[21] The Crown seeks the admission of fresh evidence on this appeal to assist this court's resolution of this ambiguity in the meaning of the disputed provision, and in reconciling the [page523] conflicting conclusions reached in the decision below and in Chaudhry. The proffered evidence is a short affidavit from John H. Broxon II, the current president of MPH Industries (the manufacturer of the BEE III). Mr. Broxon is an electrical engineer who was a member of the team who drafted the manual. His affidavit sets out the intended meaning of the disputed phrase, and affirms the BEE III's technical capacity to monitor the middle lane of a multi-lane highway from a stationary position on the side of the road.

[22] Where it is in the interests of justice to do so, this court is entitled to receive and admit fresh evidence pursuant to ss. 117(1)(d) and 134 of the POA. The well-established principles enunciated by the Supreme Court of Canada in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126 govern the court's decision under s. 117(1) (d) of the POA: R. v. 1275729 Ontario Inc., 2005 47589 (ON CA), [2005] O.J. No. 5515, 205 O.A.C. 359 (C.A.), at paras. 19-21.

[23] The proffered evidence is relevant and credible, but I would not admit it, on the ground that the admission of the evidence would not have affected the result.

[24] The Crown admits the proffered evidence would not have affected the result at trial (where the question addressed by the fresh evidence was not before the trial justice) or the appeal decision. However, the Crown suggests that the proffered evidence affirms the appeal judge's interpretation, undermines the appellant's claim that the officer failed to comply with the manufacturer's guidelines in this case, underscores the reasonableness of the verdict at trial and resolves the conflict in the jurisprudence. The Crown argues that its probative value in the context of this appeal is overwhelming.

[25] The Supreme Court of Canada has specifically cautioned courts against an expansion of the Palmer criteria: R. v. Levesque, [2000] 2 S.C.R. 487, [2000] S.C.J. No. 47, 2000 SCC 47, at para. 18. I do not agree with the appellant that failure to satisfy the fourth branch of the Palmer test literally, by demonstrating that the proffered evidence would reverse the outcome at trial, is always fatal to a fresh evidence application. However, this is not a case in which I would admit it by exception. The proposed fresh evidence is simply unnecessary.

E. Analysis

[26] The appellant's argument proceeds in two steps. First, the appellant submits that the appeal judge's interpretation of the disputed provision in the manual is wrong; second, that being so, he submits that the speed data produced by BEE III on which the charging officer relied is not reliable and cannot [page524] sustain a conviction, because there has not been strict compliance with the manual. In view of my decision on the first issue, concerning the interpretation of the manual, I would not address the second.

F. The Interpretation of the Disputed Provision

[27] The appellant argued, as he did in the first appeal, that a reasonable interpretation of the provision is that the BEE III can only be used to monitor traffic travelling in the same lane as the stationary patrol vehicle or in the directly adjacent lane. This flows from the language of the manual, which I repeat here for convenience (p. 15):

ASD (Automatic Same Direction) technology allows the operator to select a lane of traffic to monitor in stationary mode: in the same lane as the patrol vehicle or the opposite lane, or in both lanes.

[28] The appeal judge interpreted the disputed provision in light of the entire manual. He found, at para. 12 of his decision: "The BEE III can monitor traffic both coming and going towards a stationary patrol car parked on the shoulder of the highway." In support of this conclusion, the appeal judge quoted two passages from the manual that indicate the BEE III's capacity to monitor traffic moving in the same direction or the opposite direction, at paras. 10-11:

On page 2 of the Manual, it says:

"ASD (Automatic Same Direction technology) allows the BEE III to automatically measure the speeds of targets moving in the same direction as the patrol vehicle . . . ASD allows the radar to measure the speed of targets moving in one direction while completely ignoring targets moving in the opposite direction."

Also, on page [6], the Manual states:

"In stationary mode, you can select the direction of target you want to monitor . . . the radar will measure the speed of targets moving in both directions, just like a manual radar will. As soon as a target is measured, the radar will tell you . . . the direction that the vehicle is travelling in addition to the speed that it is travelling."

[29] While the appellant concedes that the appeal judge's interpretation might be reasonable, he argues that the appeal judge did not have sufficient evidence before him to make such an interpretation.

[30] I disagree. Reading the manual as a whole, the appeal judge had sufficient evidence to support his interpretation. In addition to the provisions the appeal judge relied on specifically, the manual also states, at p. 17: [page525]

In stationary mode, the Mode window works similarly. Indicators appear in front of or behind the patrol vehicle icon to indicate the selected antenna. If the opposite lane of traffic is selected, only the arrow in the left lane lights. If the same lane of traffic is selected, the arrow in the right lane lights. If both directions are selected, arrows in both lanes light.

(Emphasis added)

And, at p. 6:

Now, press the Same button on the remote. You will notice that the arrow corresponding to the patrol car's lane is illuminated. This indicates that the radar will only measure the speed of vehicles moving in that direction (moving away from the patrol vehicle on the front antenna and approaching the patrol vehicle on the rear antenna). The radar will only measure the speeds of vehicles moving in the same direction as the patrol car, regardless of whether there is a stronger vehicle moving in the opposite direction.

Now press the Opposite (Opp) button on the remote. You will notice that the arrow moves over to the other lane of traffic in the Mode window. In this mode, the radar will only display the speed of vehicles moving in that direction (moving toward the patrol vehicle on the front antenna and away from the patrol vehicle on the rear antenna). Like in the previous case, the radar will only measure the speeds of vehicles moving in that lane of traffic regardless of whether there is a stronger vehicle moving in the other lane of traffic.

You can toggle between the lane you want to measure by pressing the Same and Opp keys. If you want to go back to monitoring both directions of traffic, you must press the Mov/Sta key twice.

(Emphasis in original removed; emphasis added)

[31] In these excerpts, the word "lane" or phrase "lane of traffic" are used interchangeably with the word "direction", all of which refer to the direction in which the monitored traffic is moving, which supports the appeal judge's interpretation. There are various other, similar references to "lane" and "direction" throughout the manual that I do not reproduce in full here. Taken together, these provisions establish, as the appeal judge found, that the BEE III can be used to monitor traffic moving in either direction, or both from a stationary roadside position. There is no requirement that the patrol vehicle be stationary in the same, live lane of traffic that it is monitoring in order to comply with the manual.

[32] The appellant further submits that the BEE III can only be used to monitor traffic in the immediately adjacent lane to the stationary patrol vehicle. Again, I disagree. The appellant has not identified anything in the manual that supports this interpretation. In fact, the manual does not explicitly caution that the BEE III can only be used to monitor specific lanes (not directions) of traffic in proximity to the patrol vehicle. [page526] The manual repeatedly refers to the BEE III's capacity to distinguish between the "strongest" and "fastest" targets moving in the same direction while in stationary mode, which indicates that the device has the capacity to monitor multiple traffic lanes and focus on the fastest moving vehicle across those lanes.

[33] The appellant has not demonstrated any error in the appeal judge's interpretation of the manual. The contrary interpretation of the disputed phrase in Chaudhry is erroneous.

G. Disposition

[34] I would dismiss the appeal.

Appeal dismissed.

End of Document