Court Information

Court File No.: 999 11 3746-00

Date: 2012-10-09

Ontario Court of Justice

Parties

Between:

Regional Municipality of Durham

— AND —

John Snowden

Judicial Officer and Counsel

Before: Justice of the Peace R. J. Le Blanc

Heard on: June 13, 2012

Reasons for Judgment released on: October 9, 2012

Counsel:

• Ms. Miller for the prosecution
• Mr. Snowden, self-represented defendant

Case Law, Regulations and Legislation

• R. v. Dattomo, 2009 ONCJ 539
• R. v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.)
• D'Astous v. Baie Comeau, (1992) 74 C.C.C. (3d) 73 (Que. C.A.)
• R. v. Winlow, 2009 ONCA 643, 86 M.V.R. (5th) 171 (C.A.)
• Highway Traffic Act s. 128(1)(a); (8); (8.1); (8.2); (10); (10.1); (11); (12); (13)
• Highway Traffic Act Ont. Reg. 615 s. 42(1); 42(2); 42(4); 42(5); 42(14.1)
• Bill 169 Transportation Statute Law Amendment Act 2005
• Ontario Traffic Manual Book 7

Reasons for Judgment

JUSTICE OF THE PEACE LE BLANC:

The Charge

[1] John Snowden stands charged on the 6th day of October 2011 with the offence of speeding, allegedly 60 km per hour in a 50 km per hour construction zone.

[2] Mr. Snowden, who is self-represented, pleaded not guilty to the offence.

[3] Mr. Snowden was given notice by the prosecutor, Miss Miller, that she would be seeking an amendment from the court to reflect the original rate of speed he was said to be travelling on at the place, date and time in question.

[4] The court ruled submissions on this amendment request would be heard after the evidence of the investigating officer and the defendant was given.

Evidence of the Investigating Officer

[5] Durham Regional Police Service Const. Julie Liard said she was conducting laser traffic enforcement in a properly posted construction zone on Thickson Road, south of Taunton Road, in Whitby in the Durham Region, at about 12:09 p.m. on the date in question October 6, 2011.

[6] The area was properly posted with regulation white with black lettering 'construction begins' and 'construction ends' signs and there were two temporary condition orange signs with black letters in each direction advising that the speed limit was reduced to 50 km/h in this construction zone. There was also a flashing sign indicating "construction zone, slow down" and between 50 and 100 black and orange construction zone pylons in the immediate area.

[7] The court was told this portion of the road would normally be a posted 70 km/h zone, though the white 'regulatory' speed signs were covered at the time of the alleged incident.

[8] Const. Liard said she noted a single motor vehicle travelling at a high rate of speed, and she activated her laser – a device capable of accurately measuring the speed of a moving motor vehicle – receiving a reading of 77 km/h. Const. Liard said she was shocked by the reading, and reset the device, taking a second reading which returned a rate of speed of 73 km/h at a distance of 446 metres.

[9] The officer, who testified she is trained and qualified in the use of the laser device, said she tested it before and after the traffic stop to manufacturer's specifications, and that it was working properly.

[10] Const. Liard initiated a traffic stop of the 2008 GMC pickup truck pulling a trailer, and was provided with a valid photo Ontario driver's licence in the name of John Snowden with a date of birth of August 26, 1964. The officer said she was satisfied with the driver's identification. Const. Liard said she showed the driver the laser reading, and issued the Part I certificate before the court. She said she never lost sight of the motor vehicle in question.

[11] Mr. Snowden cross-examined the officer about the location of his truck with regard to the distance submitted on the laser device, and was told the area in which she saw it would normally be a posted 70 km/h zone.

Evidence of the Defendant

[12] Mr. Snowden testified he was southbound on the day and time in question and that he believed he was driving in a posted 80 km/h zone a distance of about 200 m from where the officer was standing. Mr. Snowden submits he was driving "at a safe rate of speed" despite seeing the orange advisory 50 km/h speed limit sign outside the OSPCA offices.

Submissions

[13] The prosecutor served notice that there were no workers present at the time of the alleged offence, and therefore any fine – were there to be a finding of guilt – should not be doubled as called for under Bill 169.

[14] The prosecutor submits that the orange and black advisory construction zone signs set the speed limit at 50 km/h, and that failing this, the speed limit then reverts to a 50 km/h zone in the absence of any regulatory speed limit signs. The regulatory white sign with black lettering indicating the normal speed limit in the area was covered during construction.

[15] Mr. Snowden's brief submissions reflected the 'advisory' nature of the temporary orange and black construction zone speed limit signs which he says are not enforceable.

[16] The court adjourned the matter to today's date to reach a decision.

Legal Analysis

Evidence Requirements for Speeding Convictions

[17] R. v. Dattomo, 2009 ONCJ 539 cites R. v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.) which follows D'Astous v. Baie Comeau, (1992) 74 C.C.C. (3d) 73 (Que. C.A.) in respect of the evidence required for a speeding conviction.

[18] Judicial notice may be taken of the fact that laser is used to measure the speed of a moving motor vehicle, however the Crown must prove the particular radar device was operated by a trained and qualified individual, accurately at the time by way of testing the device before and after a traffic stop. Evidence to that effect is said to be prima facie evidence of the speed of a motor vehicle, subject to evidence to the contrary.

[19] The Ontario Court of Appeal established the principle that the device be tested in accordance with manufacturer's specifications. R. v. Williams, 2008 CarswellOnt 1504 (Ont. C.J.)

[20] "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.

[21] It remains for the prosecution to prove Mr. Snowden's guilt with regard to the offence "beyond a reasonable doubt." Without reversing that onus it is available to the defendant to cast doubt on the officer's evidence, and/or to provide evidence to the contrary.

[22] There is prima facie evidence with regard to the rate of speed of Mr. Snowden's motor vehicle on the date and time and place in question given Const. Liard is a trained and qualified radar operator, and that she tested the laser before and after the traffic stop to manufacturer's specifications and found it to be working properly.

[23] Mr. Snowden did not cast doubt on the officer's evidence. Indeed he seems to agree with the officer's evidence save for two points. Mr. Snowden's only evidence to the contrary revolves around whether the area he was initially 'clocked in' was a 70 or 80 km/h zone, and whether or not the temporary speed limit assigned to this construction area by way of advisory orange and black speed limit signs is enforceable.

[24] There is no dispute as to the day, date, time and place of the alleged offence. The only real determination to be made is the enforceable speed limit in this construction zone on the date and time in question.

Construction Zone Speed Limits

[25] There is little in the Ontario Highway Traffic Act with regard to the black and orange construction zone 'advisory' signs, and whether or not speeds on those signs are considered 'enforceable.' And there is little in the way of case law on the subject that the court could find.

[26] Conversely there is a considerable amount of information contained under s. 128 of the Highway Traffic Act as it pertains to speeding, and speeding in a construction zone where workers are present.

[27] S. 128(8) Construction Zones – "An official of the Ministry authorized by the Minister in writing may designate any part of the King's Highway as a construction zone and every construction zone designated under this subsection shall be marked by signs in accordance with the regulations.

[28] S. 128(8.1) Same – a person appointed by the municipality for the purpose of this subsection may designate a highway or portion of a highway under the municipality's jurisdiction as a construction zone and every construction zone designated under this subsection shall be marked by signs in accordance with the regulations.

[29] S. 128(8.2) Same – The presence of signs posted under subsection (8) or (8.1) is proof, in the absence of evidence to the contrary, of the designation of the portion of the highway as a construction zone, of the authority of the person authorized under subsection (8) or (8.1) to make the designation and of the speed limit set for the portion of the highway under subsection (10).

[30] S. 128(10) The person authorized under subsection (8) or (8.1) may set a lower rate of speed for motor vehicles driven in the designated construction zone than is otherwise provided in this section, and the speed limit shall not become effective until the highway or portion of it affected is signed in accordance with subsection (8) or (8.1) as the case may be, and with subsection (10.1).

[31] S. 128(10.1) Speed limit signs in construction zones – signs posting the maximum rate of speed at which motor vehicles may be driven in a designated construction zone may be erected in accordance with the regulations.

[32] S. 128(11) Bylaws, regulations effective when posted – No bylaw passed under this section or regulation made under clause (7)(c) becomes effective until the highway or portion of it affected by the bylaw or regulation as the case may be, is signed in accordance with this Act and the regulations.

[33] Exemptions from the section are listed as s. (12) and (13) and are limited to emergency response vehicles.

Construction Zone Sign Requirements

[34] Construction zone signs are listed under s. 42(1) Ont. Reg. 615: A part of a highway that has been designated as a construction zone shall be marked at the commencement and at the end of the construction zone with construction zone signs erected on the right side of the highway, facing approaching traffic and not more than 4.5 metres from the roadway, with the bottom edge of the sign not less than 1.5 metres or more than 2.5 metres above the level of the roadway.

[35] S. 42(2) reads "the commencement of a designated construction zone shall be indicated by way of a sign that has the dimensions and bears the markings as illustrated in the following figure: white retro-reflective background, with black border and legend on the upper portion noting "Construction Zone" and the bottom portion being a black background with white retro-reflective legend that says 'Begins'".

[36] Subsection (5) conversely carries the same colours and markings but replaces the word 'begins' with "Ends" to mark the end of designated construction zone as per s. (4) of Ont. Reg. 615 as it applies to signs.

Amendment of the Charge

[37] Normally a conviction for speeding in a construction zone would be set under s. (14.1) when there is a worker present. Since there were no workers present at time of this alleged offence the prosecutor sought, and was granted on consent, an amendment which in effect would see the penalty upon conviction for speeding in a construction zone where workers were not present revert to s. (14).

[38] The prosecutor sought an amendment to reflect the original rate of speed and suggested the court use the lower of two speed readings, that being 73 km/h in a posted 50 km per hour speed zone.

[39] The court, having explained the four tests to the defendant that must be applied under s. 34(4) of the Provincial Offences Act with regard to a proposed amendment, grants the prosecutor's request to amend the certificate to reflect the original rate of speed. R. v. Winlow, 2009 ONCA 643, 86 M.V.R. (5th) 171 (C.A.) states under the Provincial Offences Act where an accused is charged with a reduced rate of speed but does not plead guilty, he or she may be found guilty of the correct rate of speed.

Advisory Speed Limit Signs

[40] Many self-represented individuals such as Mr. Snowden turn to the internet to prepare their defence and a quick perusal returns a Wikipedia definition of an 'advisory' speed limit as being "a speed limit that is recommended by a governing body, but is not enforced. Advisory speed limits are often set in areas with many pedestrians, such as in city centres and outside schools, and on difficult stretches of roads, such as on tight corners or through road works. While travelling above the advisory speed limit is not an offence, liability for any accidents that occur as a result of traveling above the limit can be placed partially or entirely on the speeder." ... Some have criticised advisory speed limits for being a weak method of traffic control, as drivers face little or no penalty for breaking the advisory speed limit."

Bill 169 and Construction Zone Safety

[41] The court acknowledges Bill 169 which deals with construction zone changes and doubling of speeding fines in areas where workers are present. Those rules, referred to as the Transportation Statute Law Amendment Act 2005, gave the power under the Highway Traffic Act (HTA) to designate construction zones on roads in their jurisdiction to improve the safety of both workers and motorists by doubling the HTA fines for speeding in a designated construction zone when workers are present.

[42] The amendment also made it easier for municipalities to reduce the enforceable speed limits in construction zones in addition to making it an offence to disobey a traffic control person's 'STOP' and 'SLOW' signs.

[43] The thought behind the amendment is that lowering the speed limit in construction zone – this can now be done without the municipality passing a bylaw – will save lives and reduce property damage. Reduced speed limits in construction zones become effective once the required signs are posted.

[44] The Act requires that a construction zone must be clearly marked with standard "CONSTRUCTION ZONE BEGINS" and "CONSTRUCTION ZONE ENDS" signs found in Regulation 615 of the HTA and in the Ontario Traffic Manual Book 7. The reduced speed limit becomes effective once the required signs are posted.

Ontario Traffic Manual Book 7 – TC-36 Signs

[45] The court must turn to the Ontario Traffic Manual Book 7 to get further information on the orange and black 'construction zone' speed limit signs.

[46] These are described specifically as a TC-36 sign, "to be used in place of" the normal white regulatory speed limit signs "where it is not practical to impose a regulatory speed limit. This would include sections where the geometrics of the roadway are not reduced due to construction but public traffic is required to mingle with heavy grading or similar operations and it is considered that a combination of advisory speed signing and proper procedures by traffic control persons should be adequate provisions for the safe passage of traffic."

[47] These orange and black advisory speed limit signs which are temporary in nature are to be installed approximately 600 metres apart for construction zones of two metres in length, and approximately 1.5 km apart for longer distances.

Enforceability of Advisory Signs

[48] The defendant Mr. Snowden is correct in saying that the orange and black speed limit signs along the route that day are 'suggestive' in nature as to speed, and are not enforceable. Black on orange advisory speed limit signage does not have any status in the Highway Traffic Act and therefore cannot be enforced.

[49] So what was the speed limit on this stretch of road on the day and time in question given the temporary orange and black construction speed limit signs are unenforceable?

Default Speed Limit Under Section 128(1)(a)

[50] The court finds the prosecutor is correct in her submissions that absent any white and black regulatory speed limit signs – there was evidence these signs in the area in question were covered over and were therefore not in effect – the speed limit for the area is determined under s. 128(1)(a) which says, "Rate of Speed – No person shall drive a motor vehicle at a rate of speed greater than (a) 50 kilometres per hour on a highway within a local municipality or within a built-up area.

[51] There is evidence that this stretch of road complies with those qualifiers, being a highway within a local municipality and being a reasonably built-up area. The commentary in the Highway Traffic Act describes it thusly: "There is an 80 km/h limit for highways not within a city, town, village or built-up area or a highway designated as a controlled-access highway under the Public Transportation and Improvement Act. For highways within cities, etc. The limit is 50 km/h. The council or trustees of a police village may set higher speed limits, or in the case of a park, lower rates."

[52] The court therefore finds that while the orange and black temporary or advisory speed limit signs are unenforceable, given the white regulatory speed limit signs with black lettering which are enforceable were covered at the time of the alleged offence, the speed limit in the area legally reverted to a 50 km/h zone as defined under the Highway Traffic Act.

Verdict

[53] The court therefore finds the defendant Mr. Snowden guilty of the offence of travelling 73 km/h in a 50 km/h zone.

Released: October 9, 2012

Justice of the Peace R. J. Le Blanc