Court File and Parties

Court File No.: 09 2184

Ontario Court of Justice

Between:

Her Majesty the Queen Respondent

— And —

Mark Hunter Appellant

Decision

Heard at Windsor: July 19th, 2012

Released: August 21, 2012

Counsel:

• Bruce Coates for the Respondent
• Patrick Ducharme for the Appellant

[1] Conviction

Justice of the Peace Hoffman found that Mr. Hunter guilty of the offence of driving his motor vehicle on 401 Highway while performing a stunt, namely driving at a rate of speed that was greater than 50 kilometres per hour over the posted speed limit, contrary to Section 172(1) of the Highway Traffic Act.

[2] Grounds of Appeal

Several grounds were listed in the Appeal. They essentially boil down to two arguments: that the verdict was unreasonable and cannot be supported by the evidence, and that the Justice of the Peace failed to apply the W.D. test to the credibility assessment.

Misapprehended the Evidence and Issue in Dispute

[3] Statement in Reasons for Judgment

At Paragraph 8 of the Reasons for Judgment, Her Worship stated:

"From the outset, I am satisfied that the Prosecution has proved the incident occurred on the 31st day of May, 2009 at the Town of Lakeshore. I am satisfied the Prosecution has proved the identity of the defendant. None of these elements was in dispute".

[4] Appellant's Argument Regarding Identity

The Appellant argued the last sentence cannot be supported on the evidence insofar as identity was very much in dispute throughout the trial. I have reviewed the transcript together with the Reasons for Judgment. There can be no doubt that the Appellant questioned officer Ternovan about his ability to observe and maintain visual contact from the aircraft until such time as the ground enforcement officer could intercept the subject vehicle and with that I have no doubt that the reliability of that testimony would have been raised in submissions.

[5] Proper Context of the Statement

However, a careful review of the testimony together with the Reasons for Judgment satisfy me that the statement in the reasons for judgement indicating that "none of these elements was in dispute" was not an indication that the Appellant at any time conceded identity or accepted officer Ternovan's opportunity and ability to make an accurate assessment of the situation and identify the Appellant's motor vehicle. In the beginning of her Reasons for Judgment, Justice of the Peace Hoffman addressed the burden of proof and the necessity of the prosecution to prove the elements of the offence beyond a reasonable doubt. She then reviewed the testimony of all the witnesses, including the appellant's testimony and a witness called by him. It was only after considering the whole of the evidence and turning her mind to the burden of proof that she remarked "none of these elements..." namely, date, jurisdiction and identity was to her mind "... in dispute". I believe the parsing of this sentence from the whole of the analysis causes the remark to be taken out of context. To my mind she was simply indicating that the elements of the offence, including the identity of the appellant, had been satisfied.

Reasonableness - Finding as to Identity and Speed

A) Finding as to Identity

[6] Appellant's Argument Regarding Reliability

The appellant argued that the finding as to identity could not reasonably be supported by the evidence. The Appellant submitted that because the officer was in a small plane flying at a high altitude above the 401 Highway managing a stop watch and making notes and from time to time turning and twisting and even going upside down, that his opportunity to observe and maintain observation of the subject motor vehicle was compromised and unreliable.

[7] Evidence Supporting the Finding

The Reasons for Judgment reveal that the Justice of the Peace was satisfied with the officer's evidence. I have reviewed his testimony and to my mind there was ample evidence to support that finding. The officer who testified was a passenger in the Cessna Aircraft and was experienced in carrying out his assigned duties in the OPP Aviation Program. He himself had measured the hash marks located on the highway previously and was satisfied as to the distance between them, a necessary component to determining the motorist's speed. He was a qualified observer with the aircraft program and received training which included the use and operation of the SC-88 stop watch. He described his activities that day and in particular the observation he made of the speeding car in comparison to other vehicles that were on the highway. The officer testified that he was able to make continuous observations as the vehicle traveled through three separate speed zones. He recorded two separate rates of speed within two of those three zones and described how he immediately and without losing sight of the vehicle, initiated radio communication with a designated ground enforcement officer, described as an interceptor, to identify the vehicle and maintained visual contact and radio communication until such time as the ground officer intercepted the vehicle.

[8] Sufficiency of Evidence

There was sufficient and reliable evidence available to the Justice of the Peace to satisfy herself as to the element of the offence concerning identity.

B) Finding as to Speed

[9] Appellant's Argument Regarding Speed Measurement

The Appellant also argued that the verdict could not be reasonably supported because the evidence as to rate of speed was not reliable. To this end, similar arguments were made having regard to the nature of the aviation officer's activities. It was argued that the officer's ability to accurately record the speed by making accurate observations and manage the stop watch would have been compromised; and, that the stop watch itself was not a reliable instrument for use to measure the rate of speed.

[10] Officer's Testimony and Methodology

The record supports the finding made by the Justice of the Peace in her Reasons for Judgment. The officer testified in regard to his experience and methodology. He explained the distance between the hash marks and how the stop watch was used to measure the time that it took for the vehicle to travel between the hash marks based on the time the front bumper intersects the initial hash mark to the point in time when the front bumper meets the second hash mark, being 500 metres apart.

[11] Calibration and Testing

The officer testified that he was not only familiar with the use of the stop watch and added that it was operating correctly. He indicated that he had previously personally measured the distance between the hash marks. Moreover, the officer stated that he did a controlled test earlier in the day in co-operation with the ground enforcement officer who drove at a speed of 100 kilometres per hour between the hash marks while Officer Ternovan measured that speed from his Cessna Aircraft with the benefit of the stop watch while maintaining radio communication with the ground officer to confirm the rate of speed.

[12] Reasonableness of Speed Finding

The finding of the Justice of the Peace as to the rate of speed was reasonably supported by the evidence.

The Failure to Apply the Principle of R. v. W.D. to the Evidence of the Appellant

[13] Appellant's Argument Regarding Credibility Analysis

The Appellant argued that the rejection of the Appellant's evidence as to his rate of speed was conclusory and without analysis.

[14] Justice of the Peace's Credibility Assessment

The Reasons for Judgment reveal that Her Worship considered all of the testimony of the witnesses including the aerial officer, the ground intercepting officer, the appellant and the friend and passenger who was travelling with the appellant that day. Her Worship then turned her mind toward weighing and considering the evidence. As to the testimony of the appellant, she rejected it. She concluded that he was lacking in credibility based on his assertion in his Examination-In Chief that he never travels over 130 kilometres per hour after it was revealed in cross-examination that he had been convicted on three prior occasions for travelling at speeds in excess of 130 kilometres per hour.

[15] Application of W.D. Test

Counsel argued that her finding was in error because the testimony was taken out of context having regard to the fact the prior convictions for speeding was first raised in cross-examination and he offered an explanation.

The Justice of the Peace clearly turned her mind to the testimony and considered that evidence together with other testimony suggesting that the Appellant was not being forthright, including the duration and close relationship the Appellant enjoyed with the passenger who was called to testify on his behalf. A trial judge is not required to self instruct with word for word adherence to the W.D. guidelines. See R. v. J.H.S., 2008 SCC 30, [2008] 2 SCR 152 at paragraph 13. Her worship provided reasons for not believing the appellant. She had sufficient grounds and reason to reach the conclusion she did as to the Appellant's credibility and in rejecting his testimony considered whether his narrative or any of the evidence adduced including the testimony of his friend and the prosecution's witnesses left her with any reasonable doubt.

[16] Burden of Proof and Defence of Due Diligence

Her Worship spoke about the burden of proof, went on to indicate that the actus reus had been proven beyond a reasonable doubt and that the defence had not discharged its onus with respect to the defence of due diligence.

Disposition of Appeal

I am satisfied that the Justice of the Peace applied the appropriate standards for consideration in respect of the whole of the evidence and the principles enunciated in R. v. W.D. and that the verdict reached was reasonable and supported by the evidence. The Appeal is hereby dismissed.

Released: August 21, 2012

G. A. Campbell