Court File and Parties

Court File No.: Halton - Milton Certificate of Offence no. 1260 - 5510632A

Date: 2012-08-22

Ontario Court of Justice

Between:

Her Majesty The Queen

— AND —

Robert Priolo

Before: Justice of the Peace Kenneth W. Dechert

Heard on: December 7, 2011, May 1, 2012 and May 4, 2012

Reasons for Judgment released on: August 22, 2012

Provincial Offences Court – Milton, Ontario

Counsel:

I. Lagden, for the prosecution

C. Wall, representative for the defendant Robert Priolo

Statutes, Regulations and Rules Cited

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, subsection 1(1), paragraph 128(1)(d) and subsection 128(2).

Cases Cited

• D'Astous v. Baie Comeau (Ville), [1992] J.Q. No. 475;; 74 C.C.C. (3d) 73 (Que. C.A.)
• Regina v. Bigioni, [1988] O.J. No. 2220 (Ont. C.A.)
• Regina v. Bland; [1974] O.J. No. 2139; 74 C.C.C. (2d) 121 (Ont. C.A.)
• Regina v. Chow, (1991), 33 M.V.R. (2d) 171 (Alta. C.A.)
• Regina v. Dinardo, 2008 SCC 24; [2008] 1 S.C.R. 788 (S.C.C.)
• Regina v. Giffen, [1980] N.S.J. No. 17 (N.S. Co. Ct.)
• Regina v. Grainger, [1958] O.J. No. 218 (Ont. C.A.)
• Regina v. Hawkins, 2009 ONCJ 101 (Ont. C.J.)
• Regina v. Hull; [2006] O.J. No. 3177 (Ont. C.A.)
• Regina v. Kololgi, [2009] O.J. No. 5742 (Ont. C.J.)
• Regina v. Lifchus; [1997] 3 S.C.R. 320 (S.C.C.)
• Regina v. Morin; [1992] 3 S.C.R. 286 (S.C.C.)
• Regina v. Niewiadomski, [2004] O.J. No. 478 (Ont. C.J.)
• Regina v. Volfson, 2009 ONCJ 227; [2009] O.J. No. 1978 (Ont. C.J.)
• Regina v. W.(D.); [1991] 1 S.C.R. 742 (S.C.C.)
• Regina v. Werenko, (1981), 11 M.V.R. 280 (Alta. Q.B.)
• Regina v. Williams, [2008] O.J. No. 1078; 2008 CarswellOnt. 1504 (Ont. C.J.)
• Regina v. Xu, [2012] O.J. No. 2074 (Ont. C.J.)

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

INTRODUCTION

[1] Under Certificate of Offence no. 1260-5510632A, the defendant Robert Priolo stands charged that he on the 11th day of January, 2011 at 11:56 a.m., at Lower Base Line west of Ninth Line, in the Town of Milton, did commit the offence of "speeding – 98 kilometres per hour in a posted 60 kilometres per hour zone, contrary to the Highway Traffic Act, section 128.

[2] The trial of this matter commenced before me on the 7th day of December, 2011, at which time the defendant entered a plea of not guilty to the subject charge. As the trial was not completed on December 7th, 2011, it was adjourned to May 1st, 2012, for continuation. The trial was further adjourned to May 4th, 2012, when it was completed. The proceeding was then adjourned to August 22nd, 2012, for my judgment.

[3] The prosecution was represented by Mr. I. Lagden. The defendant was represented by his legal representative Mr. C. Wall.

THE LAW

(i) Relevant Statutory Provisions

[4] The defendant is charged with "speeding – 98 kilometres per hour in a posted 60 kilometres per hour zone", contrary to section 128 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as "the Act". The relevant portion of subsection 128(1) of the Act reads as follows:

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);

[5] Subsection 128(2) of the Act reads as follows:

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.

[6] The following portions of subsection 1(1) of the Act are relevant to this proceeding:

In this Act,

'highway' includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;

'motor vehicle' includes an automobile, a motorcycle, a motor assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicles running only on rails, a power assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine;

(ii) Relevant Common Law

[7] In his decision in Regina v. Williams, [2008] O.J. No. 1078; 2008 CarswellOnt. 1504 (Ont. C.J.), Pockele J. made the following comments pertaining to the essential elements of the offence of speeding under section 128 of the Act.

I wish to address the issue of 'essential element of the offence'. There is a vast body of law that relates to the operation of mechanical speed detection devices, cases that have been decided at the trial level and the appellate level which relate to the testing, operation, and set up of such devices. While these decisions have value as precedents, it must be noted that the decisions are highly specific to the individual devices used in specific cases. The only "essential elements of the offence" in a speeding charge are the date, place, posted speed, identification of the vehicle operator, and the speed of the motor vehicle. The Highway Traffic Act leaves it open to the prosecution as to how the rate of speed is established in court. There are many different ways to establish excessive speed such as – and this is not meant to be an exhaustive list – pacing a vehicle, mechanical road cables, aerial observation, radar, laser, etc. Whatever method is employed by the prosecution, the burden is upon the prosecution to establish the rate of speed beyond a reasonable doubt after the evidence has been fully challenged. In R. v. Bland, [1974] O.J. No. 2139,