Court File and Parties

Court File No.: Halton – Milton Information no. 117127

Date: 2013-08-12

Ontario Court of Justice

Between:

Her Majesty The Queen

— AND —

Wei-Ling Ko

Before: Justice of the Peace Kenneth W. Dechert

Heard on: February 27, 2012, July 23, 2012, November 19, 2012 and March 18, 2013

Reasons for Judgment released on: August 12, 2013

Counsel:

• C. Gelbard and S. Bradley for the prosecution
• The defendant Wei-Ling Ko on her own behalf

Statutes, Regulations and Rules Cited

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, subsections 1(1), 6(1), paragraph 7(5)(a), subsections 7(6), 7(7), paragraph 128(1)(d) and subsection 128(2).

Cases Cited

Browne v. Dunn, 6 R. 67

D'Astous v. Baie Comeau, [1992] J.Q. No. 475 (Que. C.A.)

Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., 2006 SCC 12, 207 C.C.C. (3d) 1

Miller v. Minister of Pensions, [1947] 2 All E.R. 372 (K.B.)

Reference re Motor Vehicle Act (British Columbia) s. 94(2), [1985] 2 S.C.R. 486

Regina v. Bigioni, [1988] O.J. No. 2220 (Ont. C.A.)

Regina v. Bland, [1974] O.J. No. 2139; (1974), 19 C.C.C. (2d) 121 (Ont. C.A.)

Regina v. Chapin, 45 C.C.C. (2d) 333 (S.C.C.)

Regina v. Chow, (1991), 33 M.V.R. (2d) 171 (Alta. C.A.)

Regina v. Courtaulds Fibres Canada, [1992] O.J. No. 1972 (Ont. Prov. Ct.)

Regina v. Defaria, 2008 ONCJ 687, [2008] O.J. No. 5427 (Ont. C.J.)

Regina v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (S.C.C.)

Regina v. Fox, 2003 BCPC 346, 45 M.V.R. (4th) 199; [2003] B.C.J. No. 2346 (B.C. Prov. Ct.)

Regina v. Hickey, 13 O.R. (2d) 228 (Ont. C.A.)

Regina v. Hull, [2006] O.J. No. 3177 (Ont. C.A.)

Regina v. Kanda, 2008 ONCA 22, [2008] O.J. No. 80 (Ont. C.A.)

Regina v. Kurtzman, 4 O.R. (3d) 417 (Ont. C.A.)

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. Nitrochem Inc. and Transport Provost Inc., [1993] O.J. No. 3336 (Ont. Prov. Ct.)

Regina v. P.R.L., 2013 ONCJ 322, [2013] O.J. No. 2776 (Ont. C.J.)

Regina v. Polewsky, [2005] O.J. No. 4500 (Ont. C.A.)

Regina v. Raham, 2010 ONCA 206, [2010] O.J. No. 1091 (Ont. C.A.)

Regina v. Russell, [2008] O.J. No. 5880 (Ont. C.J.)

Regina v. Sault Ste. Marie (City), 40 C.C.C. (2d) 353 (S.C.C.)

Regina v. Sirianni, [2010] O.J. No. 5981 (Ont. C.J.)

Regina v. Stelco Inc., [2006] O.J. No. 3332 (Ont. Sup. Ct.)

Regina v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.)

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.)

Publications Cited

Hutchison, Scott; Rose, David; Downes, Phil, The Law of Traffic Offences, Third Edition, (2009, Thomson Reuters Canada Limited).

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

INTRODUCTION

[1] Under Information no. 117127, the defendant Wei-Ling Ko stands charged that she on or about the 20th day of February, 2011, at the Town of Milton, did commit the offences of:

1. drive a motor vehicle on a highway at a greater rate of speed than 50 km./hr., to wit: 88 km./hr. in a posted 50 km./hr. community safety zone, contrary to section 128 of the Highway Traffic Act; and

2. operate a motor vehicle and fail to surrender a permit, contrary to section 7(5)(a) of the Highway Traffic Act.

[2] The trial of this proceeding began before me, in the Provincial Offences Court in Milton, Ontario on the 27th day of February, 2012, when the defendant entered a plea of not guilty to each of the said charges. The evidentiary phase of the trial was completed on that date and the matter was then adjourned to July 23rd, 2012 at 1:30 p.m. for trial continuation; specifically for the receipt of final legal submissions from the parties. As the case was not reached prior to the end of the tier of cases set for trial on that day, it was then adjourned until November 19th, 2012, at 1:30 p.m., for trial continuation.

[3] The defendant did not attend for the proceeding of November 19th, 2012, however, in light of the fact that the case was not reached prior to the closing time of court on that day the matter was further adjourned until March 18th, 2013 at 1:30 p.m. for trial continuation in the absence of the defendant.

[4] The trial was completed on March 18th, 2013, when the prosecution's final submissions were received. The defendant did not attend for the trial-continuation proceeding of March 18th, 2013. It was then adjourned until August 12th, 2013, for my judgment.

[5] The prosecution was represented by Mr. C. Gelbard on February 27th, 2012, November 19th, 2012 and on March 18th, 2013 and by Mr. S. Bradley on July 23rd, 2012. The self-represented defendant attended court for the proceedings of February 27th, 2012 and July 23rd, 2012.

RELEVANT STATUTORY PROVISIONS

[6] The defendant is charged with speeding, contrary to the provisions of section 128 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as the "H.T.A.". The portions of section 128, which are relevant to this proceeding are as follows:

128(1) 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);

128(2) 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.

[7] Furthermore, the defendant is charged with the offence of failing to surrender a permit for motor vehicle, contrary to paragraph 7(5)(a) of the H.T.A. That paragraph reads as follows:

Subject to subsection (6), every driver of a motor vehicle on a highway shall carry,

(a) the permit for it or a true copy thereof; …

and shall surrender the permits or copies for inspection upon the demand of a police officer.

[8] Subsection 7(6) of the H.T.A. reads as follows:

Where a permit is a CAVR cab card or an IRP cab card, the requirements of subsection (5) apply to the original permit and not to the copy and to the permit from the jurisdiction that issued the number plates for the vehicle.

[9] The word "permit" is defined in subsection 6(1) of the H.T.A. as follows:

'permit' means a permit issued under subsection 7(7), consisting, except when the permit is a CAVR cab card or an IRP cab card, of a vehicle portion and a plate portion.

[10] Subsection 7(7) of the H.T.A., referred to in the definition of "permit" in subsection 6(1) thereof, reads as follows:

The Ministry may issue a permit of any prescribed class, number plates and evidence of validation to any person who meets the requirements of this Act and the regulations.

[11] The following terms, which are relevant to the subject offences, are defined in subsection 1(1) of the H.T.A., as follows:

'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 vehicle 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.

THE CATEGORIZATION OF THE OFFENCES

[12] In his seminal decision in Regina v. Sault Ste. Marie (City), 40 C.C.C. (2d) 353 (S.C.C.), Dickson J. writing for a unanimous panel of the Supreme Court of Canada, recognized the existence of three categories of offences. In doing so, he stated, in part, as follows:

I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case.

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

Offences which are criminal in the true sense fall into the first category. Public welfare offences would, prima facie, be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as 'wilfully', 'with intent', 'knowingly', or 'intentionally', are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The over-all regulatory pattern adopted by the Legislature, the subject-matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

[13] In its decision in Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., 2006 SCC 12, [2006] S.C.J. No. 12; (2006), 207 C.C.C. (3d) 1 (S.C.C.), hereinafter referred to as "Lévis v. Tétreault", the Supreme Court of Canada affirmed the methodology for the classification of offences established in Regina v. Sault Ste. Marie (City), supra. In Lévis v. Tétreault, supra, LeBel J. writing on behalf of the Court, made, in part, the following comments pertaining to the appropriate categorization of regulatory or "public welfare" offences:

Classifying the offence in one of the three categories now recognized in case law becomes a question of statutory interpretation. Dickson J. [in Regina v. Sault Ste. Marie (City), supra.] noted that regulatory or public welfare offences usually fall into the category of strict liability offences rather than that of mens rea offences. As a general rule, in accordance with the common law rule that criminal liability ordinarily presupposes the existence of fault, they are presumed to belong in the intermediate category…

Absolute liability offences still exist, but they have become an exception requiring clear proof of legislative intent. This intent can be deduced from various factors, the most important of which would appear to be the wording of the statute itself…

[14] In his decision in Regina v. Kanda, 2008 ONCA 22, [2008] O.J. No. 80 (Ont. C.A.), MacPherson J.A. applied the "framework for classifying regulatory offences" as established in Sault Ste. Marie, in concluding that the offence of "failing to ensure that a passenger under the age of 16 years was wearing the complete seat belt assembly", contrary to the provisions of subsection 106(6) of the H.T.A., as it read on April 8, 2004, was an offence of strict liability. In paragraphs 42 and 43 of that decision, Mr. Justice MacPherson stated as follows:

Sault Ste. Marie established the framework for classifying regulatory offences. The three categories of such offences, their definitions and differences, have stood for thirty years and were explicitly affirmed in Lévis (City) v. Tétreault, 2006 SCC 12, 207 C.C.C. (3d) 1 at paras. 13-19, (S.C.C.).

The second important feature of Sault Ste. Marie is its strong presumption in favour of strict liability in an interpretive contest between strict and absolute liability. This presumption has also been affirmed in subsequent case law, including Chapin [Regina v. Chapin, 45 C.C.C. (2d) 333 at 342 (S.C.C.)] and Tétreault, and deepened by the Supreme Court's post-Sault Ste. Marie declaration that coupling absolute liability offences with the punishment of imprisonment violates section 7 of the Charter: see Reference re Motor Vehicle Act (British Columbia) s. 94(2), [1985] 2 S.C.R. 486.

[15] In their textbook, The Law of Traffic Offences, Third Edition, (2009, Thomson Reuters Canada Limited), authors Scott C. Hutchison, David Rose and Phil Downes made, in part, the following comments pertaining to "the process of categorization" of regulatory offences, at page 17 therein, as follows:

There is, in effect, a presumption that a regulatory offence – virtually all provincially created offences and almost all federally created offences outside of the Criminal Code – will be classified as strict liability: the party seeking to have the court interpret the offence as either absolute liability or full mens rea bears the burden of persuasion. …

[16] In his decision written on behalf of a unanimous panel of the Ontario Court of Appeal in Regina v. Raham, 2010 ONCA 206, [2010] O.J. No. 1091 (Ont. C.A.), Doherty J.A. characterized the H.T.A. as a public welfare statute. In that regard, he made the following remarks in paragraph 33 therein:

The Highway Traffic Act is public welfare legislation designed to protect those who use the roads of the province. The Act, and in particular Part X, 'Rules of the Road', creates a wide variety of offences, including the offence in s. 172. These offences, taken together, are designed to regulate and control conduct on the roads. The offences are properly regarded as public welfare offences: see R. v. Kanda, 2008 ONCA 22, 88 O.R. (3d) 732 (C.A.); R. v. Kurtzman, 4 O.R. (3d) 417 (C.A.). On the authority of Sault Ste. Marie [supra.], these offences, including s. 172, are prima facie strict liability offences.

[17] In Raham, supra, Mr. Justice Doherty stated that in conducting an analysis of the factors identified in Sault Ste. Marie, supra, relative to the issue of whether a regulatory offence could fall into the exceptional category of absolute liability, it was acceptable for a jurist to determine whether the language used in the statutory provision creating the offence could "reasonably admit of a due diligence defence". He went on to note that this consideration was "simply one way of examining 'the precision of the language used', one of the four factors identified in Sault Ste. Marie".

[18] The offence of speeding under section 128 of the H.T.A., is an absolute liability offence. This proposition of law was first established by the Ontario Court of Appeal in its decision in Regina v. Hickey, 13 O.R. (2d) 228 (Ont. C.A.), and confirmed by the Court of Appeal in its decisions in Regina v. Polewsky, [2005] O.J. No. 4500 (Ont. C.A.) and Regina v. Raham, supra.

[19] In paragraph 3 of their decision in Regina v. Polewsky, supra, Weiler, Blair and MacFarland, JJ.A. made the following comments in support of the absolute liability classification of the offence of speeding contrary to section 128 of the H.T.A.:

This Court held that the offence in issue is one of absolute liability in R. v. Hickey, 13 O.R. (2d) 228. We have not been given any good policy reason to revisit Hickey on the grounds articulated in Sault Ste. Marie. Speed is a factor in many collisions. The overall regulatory pattern adopted by the legislature, the subject matter of the legislation, and the language used suggest that speeding should continue to be interpreted as an offence of absolute liability.

[20] On the other hand, the issue of the categorization of the offence of fail to surrender permit for motor vehicle under paragraph 7(5)(a) of the H.T.A., has not been determined by an appellate level court. Based upon my legal research, I have found two separate Ontario trial-court decisions which have considered and categorized the offence prescribed by paragraph 7(5)(a) of the H.T.A. The two decisions reach opposite conclusions as to the issue of the categorization of the said offence.

[21] In his decision in Regina v. Sirianni, [2010] O.J. No. 5981 (Ont. C.J.), Hundal J.P. categorized the offence of fail to surrender permit for motor vehicle as one of strict liability. In reaching this conclusion, the Justice of the Peace stated that there was no issue raised by either the defendant or the prosecutor during the course of the trial regarding the "category" of the offence.

[22] On the other hand, in his decision in Regina v. P.R.L., 2013 ONCJ 322, [2013] O.J. No. 2776 (Ont. C.J.), Quon J.P. categorized the said offence as an absolute liability offence. In reaching his determination in this regard, His Worship appeared to follow the decision of Joseph-Tiwary, J.P. of the British Columbia Provincial Court (Traffic Division), in the matter of Regina v. Fox, 2003 BCPC 346, 45 M.V.R. (4th) 199; [2003] B.C.J. No. 2346 (B.C. Prov. Ct.).

[23] Upon reviewing the decision in Regina v. Fox, supra, I note that the defendant was charged with the offences of "failing to produce a driving licence" and "no insurance" contrary to subsections 33(1) and 24(3) of the Motor Vehicle Act of British Columbia. The trial justice of the peace placed both offences in the category of strict liability.

[24] Accordingly, I am able to distinguish the decision in Regina v. Fox, supra, from the case at bar, as the said decision did not make reference to the offence of failing to surrender a permit for a motor vehicle. Furthermore, Joseph-Tiwary J.P. categorized both offences as offences of strict liability. In my view this decision may not, therefore, be relied upon as authority for the proposition that the offence of fail to surrender permit for motor vehicle under paragraph 7(5)(a) of the H.T.A., falls into the category of absolute liability.

[25] The offence of fail to surrender permit for motor vehicle is one enacted by the H.T.A. As stated in Regina v. Raham, supra, the H.T.A. is "public welfare legislation designed to protect those who use the roads of the [Province of Ontario]". The offences under the said Act are public welfare offences and are, therefore, presumed to be offences of strict liability.

[26] In this proceeding, the prosecution did not attempt to persuade me that the offence of fail to surrender permit for motor vehicle was one of absolute liability. In fact, the prosecutor took the position that the said offence was one of strict liability for which the defendant could attempt to avoid liability by proving, on a balance of probabilities, that she "took all reasonable care". In light of this submission, I find that the presumption of strict liability has not been rebutted in favour of a categorization of absolute liability.

[27] Furthermore, upon examining the text of the paragraph 7(5)(a) of the H.T.A., I am of the view that the language therein is not sufficiently precise to create an offence of absolute liability. The charging section makes use of the verb "surrender" defining the required actions of a driver of a motor vehicle in the circumstances, and the noun "demand" defining the actions of a police officer in the circumstances. It is reasonable to conclude that the conduct of an individual in surrendering a document may vary depending on the circumstances and may, therefore, be subject to an analysis as to whether all reasonable steps were taken by a defendant in undertaking the act of surrender. Similarly the actions of a police officer in "demanding" the production of a permit may be interpreted in various ways, raising the spectre of the subject offence being committed in the context of a reasonable mistake of fact.

[28] The language used in paragraph 7(5)(a) of the H.T.A. may, in the words of Mr. Justice Doherty in Raham, supra, "reasonably admit of a due diligence offence". Accordingly the language of the subject offence-creating paragraph fails, as stated in Sault Ste. Marie, supra, to make it "clear that guilt would follow proof merely of the proscribed act", indicative of absolute liability.

[29] In conclusion, for the reasons stated above, I have determined that the offence of fail to surrender permit for motor vehicle, pursuant to paragraph 7(5)(a) of the H.T.A. is properly categorized as an offence of strict liability. If the prosecution is able to prove the actus reus of the subject offence beyond a reasonable doubt, then the court may consider whether the defendant has been able to prove the defence of reasonable care; which is referred to by some jurists as the defence of due diligence, to the standard of proof on a balance of probabilities. If the defendant is able to prove the said defence, then her presumed negligence is negated and she will be excused of liability for the offence.

THE EVIDENCE

[30] On February 27th, 2012, I received verbal evidence in this proceeding from Police Constable Adam Bendiks, tendered on behalf of the prosecution as well as from the defendant.

(i) The Testimony of Police Constable Adam Bendiks

[31] During examination-in-chief, Constable Bendiks testified that at that time he was a police officer employed by the Halton Regional Police Service and that he had been so employed since June, 2006. He testified with the assistance of his investigative notes for the purposes of refreshing his existing memory of the relevant events. He advised that his notes were made "immediately" after the time of the subject events.

[32] Constable Bendiks testified that on February 20th, 2011, he was conducting "a mobile speed timing exercise" on Ontario Street near Donald Campbell Avenue, in the Town of Milton and Region of Halton. The officer stated that at that time he was using "a Decatur Genesis II" radar device "with multi-directional capability", which was attached to his police vehicle, for purposes of the speed timing exercise. He advised that that a radar device was "a device designed to measure the speed of a moving motor vehicle".

[33] He described the area where he was conducting the speed timing exercise as "a residential area and community safety zone with a posted speed limit of 50 kilometres an hour". In this regard, the officer advised that a sign which read "community safety zone, fines increased" was located below a 50 kilometre per hour speed limit sign in the relevant area of Ontario Street.

[34] Constable Bendiks testified that he was qualified to use the subject "Decatur Genesis II" radar device. He advised that he became so qualified in April 2009. He stated that on February 20th, 2011 at approximately 10:08 a.m., he used the said radar device to measure the speed of a motor vehicle being driven by the defendant. He indicated that earlier that morning, at 8:50 a.m., he tested the device and found it to be "in good working order". He went on to advise that at 10:42 a.m., he re-tested the device and, once again, found it to be "in good working order". When the prosecutor asked him how these tests were conducted, Constable Bendiks responded that they were conducted in accordance with his "training guidelines".

[35] Constable Bendiks testified that at approximately 10:08 a.m., he was operating his police vehicle in a southerly direction on Ontario Street at Donald Campbell Avenue. He described the traffic on Ontario Street at the said location and time as "light" and that the weather was "clear". He stated that at that time he had occasion to observe a motor vehicle travelling in a northerly direction on Ontario Street approaching his location from the south. He estimated that the said vehicle was travelling at a rate of speed of between 80 and 85 kilometres per hour. He noted that at that time, the said vehicle was the only motor vehicle in the range of his radar.

[36] Constable Bendiks testified that at that time he activated the front antenna of the radar device attached to his police vehicle and obtained a reading, measuring the rate of speed of the said motor vehicle, of "88 kilometres per hour". He stated that at the time that he activated the radar device, he was operating his police vehicle in a southerly direction "on Ontario Street at Donald Campbell Avenue".

[37] The officer testified that after he had obtained the said speed reading, he turned his police vehicle around and followed the targeted motor vehicle in a northerly direction on Ontario Street, eventually stopping it at a location north of Main Street. He described the subject motor vehicle as a "1998 Volvo, model S70".

[38] Constable Bendiks testified that upon stopping the said vehicle, he spoke with its female driver and "demanded that she surrender her driver's licence, ownership and insurance". He advised that in response to his demand, the driver surrendered a "valid Ontario digitized photo driver's licence" in the name of Wei-Ling Ko and proof of valid insurance, but that she failed to provide the permit for the motor vehicle. He advised that at that time he issued two Provincial Offences Act summons to the defendant for each of the offences of "speeding and failing to provide the permit for the motor vehicle".

[39] The officer testified that at the time of the said traffic stop, the driver of the Volvo motor vehicle identified herself by means of the production of an Ontario driver's licence with a photograph on it. He stated that upon receiving the driver's licence he compared the photograph on the licence to the driver before him and found the photograph to be a matching image of the driver. He noted that the information on the driver's licence identified the driver as being Wei-Ling Ko. Furthermore, he advised that the driver was the defendant before the Court.

[40] The defendant did not pose any questions of Constable Bendiks by way of cross-examination.

(ii) The Testimony of the Defendant

[41] The defendant elected to testify on her own behalf in this proceeding. In that regard, she proffered the following testimony-in-chief:

Okay, so that day, I was driving to work, which is in Waterloo and I was speeding. I was, from what I remember, I was going ten kilometres per hour over the speed limit, so 60. And when I was pulled over, he said I was going 80, so when I asked to see the radar, he could not provide me with proof of me speeding at 88 kilometres per hour. And, when he asked for the permit…so when he asked for the permit, I did not know what a permit looked like, so when I got home I asked my mom why there wasn't a permit in the car, but she said that there was. So, it was actually in one of the – because like the permit was put into a wallet and it was in the glove box and I handed him, like I handed him everything in the glove box, because I did not know what a permit looked like and he was unable to find it. And, when my mom showed it to me, like when I got home, like we did have a permit, so I had a permit in the car and I provided the permit. Yeah, that's it.

[42] Prior to completing her testimony-in-chief, the defendant made one further statement as follows:

Oh, well I failed to provide the permit, but I guess he wasn't able to find it.

[43] During cross-examination, the defendant reiterated her testimony that at the relevant time, she was travelling to her place of employment in Waterloo and that she was operating her motor vehicle at a rate of speed in excess of the speed limit. She stated that she was not late for work at the time of the alleged speeding infraction and indicated that to the best of her recollection she was scheduled to start work at 11:30 a.m.

[44] In response to questions posed of her by the prosecutor, the defendant testified that the first time she observed the police officer was when he was driving his police vehicle behind her with its siren sounding. She agreed with the prosecutor's suggestion that she did not see the officer prior to that time. Furthermore, she agreed with the prosecutor's suggestion that she did not see the officer when he was travelling towards her. She stated that there were three cars around her at the time that she noticed the police officer following her.

[45] Following the completion of his cross-examination of the defendant relative to the speeding allegation, the prosecutor and the defendant engaged in the following question and answer exchange relative to the charge of fail to surrender a permit for the motor vehicle:

Q (the prosecutor): Okay, now earlier you stated you didn't know what a permit was, is that correct?

A (the defendant): I know what a permit is. I just don't know what it looks like.

Q: Okay, but you said that you provided it to the officer.

A: Yes, because it was in the folder that I handed to him.

Q: Did you take it out of the folder?

A: I took everything out.

Q: And you gave him everything?

A: Yes.

Q: How many pieces of paper were there?

A: Like five.

Q: So, not knowing what a permit looks like, you handed him five pieces of paper, is that correct?

A: Yes, they looked like official documents, so I just gave him all the official documents…

Q: But you don't know if there was a permit in there or not, did you?

A: I knew there was one.

Q: But you just finished telling the Court that you didn't know what a permit looked like.

A: Yes, but I knew it was in the car, because before I started driving the car, my mom told me that all our documents are in the car.

Q: But, the officer stated you failed to surrender the permit.

A: Yes, that's what he stated.

Q: Okay and you're saying that you did, that you surrendered the permit, is that correct?

A: Yes.

Q: You handed him the permit and said, 'Here's the permit'?

A: No, I handed him all the documents and the permit was included in the documents. I just didn't know what it looked like, so I was hoping he would be able to identify the permit.

Q: Did you tell him, 'I don't know what the permit looks like'?

A: Yes.

Q: You did tell him that?

A: Yes.

(iii) The Testimony of Police Constable Adam Bendiks in Rebuttal

[46] Following the completion of the evidence tendered by the defendant in this proceeding, the Court granted the prosecutor's application to recall Police Constable Bendiks to proffer rebuttal evidence.

[47] During examination-in-chief in rebuttal, Constable Bendiks testified that at the material time the defendant did not advise him that she did not know what the permit looked like, as she claimed during the course of her testimony. The officer indicated that at the relevant time, the defendant offered a number of documents to him "one at a time".

[48] During cross-examination in rebuttal, the defendant and Constable Bendiks engaged in the following question and answer exchange:

Q (the defendant): Okay, so did I not give you a yellow wallet?

A (the witness): You gave me multiple documents, one at a time, some of which were documents I demanded, some of which were not. I don't recall a wallet or you calling it a folder in your evidence. I do not recall that.

Q: No, in my evidence I recall a wallet and it was yellow and I handed it to you and you looked through it. Do you not remember that?

A: No I don't – I don't believe that happened. I don't believe that happened.

Q: So the fact that I didn't know what a permit looked like, why did you not include that in the case notes, because you took notes?

A: I'm sorry, I don't understand the question.

Q: Why did you not provide the information that I did not know what a permit looked like in your notes?

A: I was unaware that you did not know what a permit looked like.

RELEVANT COMMON LAW

[49] In his Provincial Offences Act appellate 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, contrary to section 128 of the H.T.A.:

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; 19 C.C.C. (2d) 121, speed based on speedometer readings, [R. v. Chow, (1991), 33 M.V.R. (2d) 171 (Alta. C.A.)] radar photography device where the Court held:

The evidence must meet the test of demonstrating a circumstantial guarantee of trustworthiness and accuracy and that without any evidence to the contrary, the evidence was admissible and was entitled to weight.

In the case of D'Astous v. Baie Comeau, [1992] J.Q. No. 475 (Que. C.A.), the Court primarily dealt with the issue of judicial notice regarding the operation of speed detection devices. As a secondary point, the accuracy of such a device is not to be 'presumed' but must rather be 'proven' and as part of this, the prosecution must prove the qualification of the operator that the device was tested before and after operation and that the accuracy of the device was verified by a test. Specifically in this regard, the testing must conform with the operator's manual, and if a tuning fork is involved, it must be proven to be accurate. This differs from the case at hand because the operator's manual, or the suggested testing procedure no longer requires the use of a tuning fork.

It is not an essential element of the offence that the officer who observed a speeding offence and wrote the ticket be 'qualified' in any particular manner according to Ontario law; however, it would appear that in Alberta, [R. v. Werenko, (1981), 11 M.V.R. 280 (Alta. Q.B.)] the Crown is required to prove that the operator of a speed detection device is qualified by virtue of (i) following a course, (ii) passing an exam successfully, (iii) having several months of required experience. It would appear that the issue of being 'qualified' in Ontario must be proven beyond a reasonable doubt on a standard less defined than it is in Alberta.

However, a 'reasonable doubt' might be raised regarding the accuracy of a speed measurement where an operator is not qualified or has no experience or has no training in the operation of a speed measurement device or system. Similarly, where a mechanical speed detection device is utilized, the prosecution may wish to call evidence, although it is not necessary to do so, that the device has been properly maintained and tested prior to operation. Certainly, these questions would be asked by the defence if not explored by the prosecution, the defence attempting to raise a 'reasonable doubt' as to the accuracy of the rate of speed indicated.

There is no requirement in the Highway Traffic Act that the operator of a speed detection device achieves a certain level of qualification as a prerequisite to accepting the operator's evidence of rate of speed; the fact that an operator received no training whatsoever, or received training deemed appropriate by his superiors, this may be qualification, or was relatively inexperienced although properly trained and qualified, are all factors which the Judge or justice of the peace can take into consideration when weighing the evidence to establish whether the rate of speed has been established beyond a reasonable doubt or whether the defence has raised a reasonable doubt. It is important to remember that the weighing or assessing of the evidence must not be done on a piecemeal basis and must only be done having regard to all of the evidence before the Court. This is R. v. Morin, [1992] 3 S.C.R. 286, in [the] Supreme Court. It is also important to remember that contradictory evidence is one of the most important factors to consider in weighing evidence.

[50] In the brief endorsement decision of the Ontario Court of Appeal in Regina v. Bigioni, [1988] O.J. No. 2220 (Ont. C.A.), Brooke J.A. stated as follows:

We agree with the decision of the Provincial Court Judge sitting in appeal from the judgment of the justice of the peace. The evidence of the Police Officer that he tested the radar unit both before and after, and it measured the respondent's speed accurately, and together with that he is a qualified operator is sufficient to evidence a prima facie case. This appeal dismissed.

[51] In considering the issue of the evidentiary threshold needed to determine whether a rate of speed measurement obtained through the operation of a laser device was both accurate and reliable, Feldman J.A. made the following comments in paragraphs 21 and 22 of her decision in Regina v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.):

The Crown seeks to uphold the conviction on the basis that there was led at trial prima facie evidence of the accuracy and reliability of the particular laser unit, consisting of the performance of manufacturer's tests for good working order both before and after the use of the device, together with the earlier verification of the accuracy of the laser unit for measuring the velocity of moving vehicles on a highway, when compared with an accurate radar unit by a qualified laser and radar operator.

In my view, the position of the Crown is correct. The court received evidence that the officer who operated the laser device was trained and experienced and that he tested the device both before and after its use in accordance with manufacturer's instructions to ensure that it was operating properly on the date in question. …

In my view, the foregoing paragraphs read in the context of the balance of Madam Justice Feldman's decision in Regina v. Vancrey, supra, stand for the proposition that in order to establish on a prima facie basis, the accuracy and reliability of a rate of speed measurement obtained through the use of a laser or radar speed-measuring device, the Crown must prove that at the material time the particular device was being operated by a qualified operator, and that the operator tested the device both before and after its use in accordance with manufacturer's instructions or specifications, and thereby determined that the device was in good working order.

[52] In his Provincial Offences Act appellate decision in Regina v. Russell, [2008] O.J. No. 5880 (Ont. C.J.), Pockele J. determined that the trial Justice of the Peace erred in law in finding that the prosecution had failed to establish the reliability of the results of a speed-measurement of a motor vehicle obtained by radar, in circumstances where the prosecution had not lead evidence that the radar device had been tested "per manufacturer's specifications". In reaching his decision in this regard, Mr. Justice Pockele reasoned as follows:

The second error relates to the Justice of the Peace indicating that she had concerns that the testing was "per manufacturer's specifications". The Justice of the Peace made an error of law here by imposing a requirement in effect creating as an essential element of this offence a proposition that the prosecution need call evidence by way of some sort of special words or mantra that the speed detection device be tested "per manufacturer's specifications".

In this matter there should have been no issue regarding the reliability of the speed detection device in that evidence clearly indicates it was operated by a qualified, experienced police officer and was tested before and after the time of this offence. When a speed detection device is tested it only becomes an issue concerning reliability once the defence puts reliability in issue in the trial process. Putting reliability in issue is done by cross-examination of the prosecution witnesses, calling a defence, calling technical evidence etcetera.

Here, we had evidence of prima facie reliability. If the defence wished to attack reliability, it was entitled to ask questions concerning the testing process and whether it was "per manufacturer's specifications". If the defence chooses not to ask that question and attempts to rely upon equivocal evidence that could be interpreted in [a] way favourable to the defence or in another hand favourable to the prosecution, there is a duty upon the defendant or the litigant to put that question directly to the witness. In fact, it is a well-established principle of evidentiary law, known as the rule in Browne v. Dunn, 6 R. 67, that a litigant is not entitled to rely upon the most favourable interpretation of an equivocal answer unless that favourable interpretation has been put to the witness. Here, there was prima facie evidence of testing, reliability was not put in issue, there was no need or requirement that the magic words be used [that] the testing was "per the manufacturer's specifications".

THE ISSUES

[53] The ultimate issue is this proceeding is whether or not the prosecution has proven the guilt of the defendant on each of the subject charges, beyond a reasonable doubt. The defendant is presumed innocent of both of the subject offences until proven guilty.

[54] In order to sustain a conviction for the offence of speeding, 88 kilometres per hour in a posted 50 kilometres per hour – community safety zone, the prosecution must prove all of the elements of the actus reus of the offence, including the issue of the identity of the defendant, to the standard of proof beyond a reasonable doubt. In light of the fact that this offence is an absolute liability offence, the mental element of negligence is presumed upon proof of the commission of the prohibited act beyond a reasonable doubt. Furthermore, it is not open to the defendant to exculpate herself by proving on a balance of probabilities that she took all reasonable care by either acting on the basis of an honest and reasonable mistake of fact or by taking all reasonable steps to avoid the particular event.

[55] On the other hand, I have determined that the offence of failing to surrender a permit for motor vehicle is an offence of strict liability. Accordingly in order to sustain a conviction for the offence of fail to surrender permit for motor vehicle, the prosecution must meet its burden of proving all of the elements of the actus reus of the said offence, beyond a reasonable doubt. If the prosecution is able to prove the actus reus to the requisite standard, the legal burden of proof then shifts to the defendant to attempt to rebut her presumed negligence by showing, on a balance of probabilities, that she either exercised due diligence or "reasonably believed in a mistaken set of facts", which if true, would have rendered her behavior in committing the prohibited act, innocent.

[56] In this proceeding, there is conflicting evidence as to whether or not, at the material time, the defendant was driving the subject motor vehicle on a highway at a rate of speed of 88 kilometres per hour in the subject 50 kilometres per hour, community-safety speed zone. Furthermore there is conflicting evidence relative to the issue of whether the defendant actually failed to surrender the permit for the subject motor vehicle to the police officer, when requested to do so.

[57] I am obliged, therefore, to undertake an assessment of the credibility of the interested witnesses in this proceeding and then proceed to resolve the issue of credibility by applying the three-pronged test as set out in Regina v. W.(D.), [1991] 1 S.C.R. 742 (S.C.C.). In embarking on such an exercise, I must remind myself that "the rule of reasonable doubt applies" to the issue of credibility assessment and that the determination of the defendant's guilt must not be based upon a credibility contest between the prosecution and defence witnesses. Furthermore, I must be guided by the general proposition prohibiting me from finding that the prosecution has met its burden of proof simply on the basis that I might prefer the evidence of the prosecution witnesses to that of the defence witnesses. [1]

[58] On the other hand, since the burden of proving the defence of reasonable care relative to the strict liability offence of fail to surrender permit for motor vehicle, rests on the defendant on a balance of probabilities, the model jury instructions enunciated in Regina v. W.(D.), supra, do not apply to the assessment of the credibility of witnesses relative to the establishment of that defence. [2] In order to determine whether the defendant has discharged her burden of proving either the defence of due diligence or the defence of reasonable mistake of fact on a balance of probabilities, I must weigh the totality of the evidence in the context of the following definition of proof on a preponderance of the evidence, as stated by Lord Denning in Miller v. Minister of Pensions, [1947] 2 All E.R. 372 (K.B.):

[The burden of proof in civil cases] must carry a reasonable degree of probability, but not be so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'We think it is more probable than not', the burden is discharged, but, if the probabilities are equal, it is not.

ANALYSIS

(i) Whether the prosecution has proven the actus reus of the subject offence of speeding, 88 kilometres per hour in a posted 50 kilometres per hour – community safety zone?

[59] Based upon the undisputed evidence in this proceeding, I find that the following elements of the actus reus of the subject speeding allegation have been proved beyond a reasonable doubt:

1. that on the 20th day of February, 2011, at approximately 10:08 a.m., the defendant, Wei-Ling Ko, was driving a motor vehicle in a northerly direction on Ontario Street, approaching its intersection with Donald Campbell Avenue, in the Town of Milton;

2. that at the material time, the relevant portion of Ontario Street, just south of Donald Campbell Avenue in the Town of Milton, constituted a posted 50 kilometres per hour, community-safety speed zone; and

3. that Ontario Street in the Town of Milton, is a "highway" as that term is defined in the H.T.A.

[60] The only element in dispute is that of the rate of speed of the motor vehicle being driven by the defendant at the material time. Constable Bendiks testified that the said motor vehicle was travelling at a rate of speed of 88 kilometres per hour, based upon the measurement obtained by the radar device he was operating at the time. On the other hand, the defendant denies driving the subject vehicle at the alleged rate of speed. She admits, however, that she was travelling at a rate of speed of 60 kilometres per hour; ten kilometres per hour over the speed limit.

[61] In light of the conflicting evidence relative to this essential element, I must embark upon an assessment of the credibility of the witnesses by applying the principles enunciated in Regina v. W.(D.), supra. In W.(D.), Cory J. explained how the issue of credibility should be assessed in the context of a criminal trial, in part, as follows:

…It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge must instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. …

Ideally appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[62] In their endorsement decision in Regina v. Hull, [2006] O.J. No. 3177 (Ont. C.A.), Simmons, Armstrong and Rouleau JJ.A., made the following comments pertaining to the principles enunciated in W.(D.), supra:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply, because the trier of fact prefers the evidence of the Crown witnesses to that of the defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in doing so comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[63] In her decision in Regina v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (S.C.C.), written on behalf of a unanimous panel of the Supreme Court of Canada, at paragraph 23, Charron J. interpreted the W.(D.) formula as follows:

The majority [referring to the majority decision of the Quebec Court of Appeal, under appeal] stated that there is nothing sacrosanct about the formula set out in W.(D.). Indeed as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.(D.); it will depend on the context (para. 112). What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. …

[64] In his decision in Regina v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.), Cory J. defined the expression "beyond a reasonable doubt", as part of a suggested jury charge, in part, as follows:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather it is based on reason and common sense. It is logically derived from the evidence or lack of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard is impossibly high.

[65] Constable Bendiks presented his testimony relative to the speeding allegation, in a clear and concise manner. His testimony was both detailed and internally consistent. It was not diminished through cross-examination.

[66] Constable Bendiks was in a position to see and record what he claims to have seen and recorded. He testified with the assistance of his investigative notes to refresh his existing memory of the relevant events, which were made contemporaneously with the time of the events. Furthermore, his evidence made common sense. In my view he presented as a credible witness.

[67] Based upon the totality of Constable Bendiks' testimony, I am satisfied that at the material time, he was qualified in the use of the subject "Decatur Genesis II", multi-directional radar speed-measuring device. Furthermore, I am satisfied that he took adequate steps to test the subject device both before and after its use in the circumstances of this case, and that he found the device to be in good working order.

[68] It is acknowledged that the officer testified that in testing the radar device, he did so in accordance with his "training guidelines". In so testifying, he failed to indicate that he performed the tests specified by the manufacturer of the device.

[69] In my view, the failure of the police officer to explicitly state that he tested the radar device in accordance with manufacturer's specifications or instructions is not a factor which affects the reliability of the speed-measurement of the motor vehicle being driven by the defendant, as recorded by the subject radar device. In reaching this conclusion, I have followed the reasoning enunciated by Pockele J. in Regina v. Russell, supra.

[70] Constable Bendiks advised that he tested the subject radar device both before and after its use and found the device to be in good working order on both occasions. Furthermore, the defendant did not, at any time during this proceeding, challenge the reliability of the testing process employed by the police officer relative to the subject radar device, as a means of attempting to impeach the trustworthiness of the speed-measurement reading obtained at the material time.

[71] While it is acknowledged that during her testimony, the defendant generally denied the allegation that she was, at the relevant time, operating the subject motor vehicle at rate of speed of 88 kilometres per hour, she did not provide any evidence to suggest that the purportedly inaccurate speed-measurement, from her perspective, was related to the testing methodologies employed by the officer.

[72] Moreover, the defendant did not cross-examine Constable Bendiks relative to the speeding allegation. She did not, therefore, put the consideration of the reliability of the procedures employed by the police officer in testing the radar device into issue.

[73] Accordingly, applying the law established by the Ontario Court of Appeal in both Regina v. Bigioni, supra, and Regina v. Vancrey, supra, I find that the speed measurement which the officer obtained at 10:08 a.m. on February 20th, 2011 of the motor vehicle being driven by the defendant at that time, may be considered to be, on a prima facie basis, both accurate and reliable.

[74] During her testimony, the defendant denied operating her motor vehicle at the relevant time at a rate of speed of 88 kilometres per hour as alleged by the prosecution. She admitted that she was speeding but that she was only travelling at a rate of speed of 60 kilometres per hour; 10 kilometres per hour over the posted speed limit.

[75] The defendant's brief testimony relative to the speeding allegation against her was presented in a clear and concise manner. Her evidence was internally consistent and she did not overstate or exaggerate her evidence. Furthermore, the strength of her testimony was not diminished as a result of cross-examination. I find her to be a credible witness.

[76] I find, however, that I am not able to firmly believe the defendant's exculpatory evidence, due to its obvious lack of independence. Furthermore, when I consider the defendant's testimony in the context of the evidence before me as a whole, I am of the view that I am not left in a state of reasonable doubt of the guilt of the accused on the speeding allegation as it is framed in the information.

[77] While I acknowledge that the defendant maintains that at the relevant time, she did not operate her motor vehicle at a rate of speed in excess of 60 kilometres per hour, her exculpatory evidence in that regard cannot be considered to be sufficiently reliable to raise a reasonable doubt as to that element. Her assertion in that regard might be appropriately described as a bald assertion.

[78] The defendant's assertion as to the element of the rate of speed of her vehicle at the relevant time, lacked sufficient detail to enhance its reliability. She admitted driving her motor vehicle at a rate of speed in excess of the posted 50 kilometres per hour speed limit. She then confidently stated that she was travelling at a rate of speed of 60 kilometres per hour; however, she failed to advise as to how she was able to ascertain that she was operating her vehicle at that rate of speed. In my view, the defendant's assertion as to her rate of speed appeared to be nothing more than a supposition on her behalf.

[79] In that regard, the defendant did not advise of any circumstances whereby she might have taken steps to monitor the speed of her motor vehicle by checking its speedometer. Moreover, the defendant failed to state at what point over the stretch of Ontario Street between a location just south of its intersection with Donald Campbell Avenue and a location north of Main Street, she was operating the motor vehicle at an even rate of speed of 60 kilometres per hour.

[80] In determining whether the defendant's exculpatory evidence has left me in a state of reasonable doubt as to her guilt of the subject allegation of speeding, I am required to compare her evidence with the evidence proffered by Constable Bendiks. The theory of the prosecution is that the defendant's vehicle was travelling at a rate of speed of 88 kilometres per hour when it was moving in a northerly direction on Ontario Street just south of Donald Campbell Avenue. Constable Bendiks activated his radar speed-measuring device at a time when the defendant's vehicle was the sole vehicle in the range of the device and when his police vehicle, travelling in a southerly direction on Ontario Street, had reached the intersection of Donald Campbell Avenue and Ontario Street.

[81] On the other hand, the defendant simply testified that at the subject time, she was travelling on Ontario Street at a rate of speed of 60 kilometres per hour. She did not advise as to how she determined the rate of speed of her vehicle at the time, nor as to the specific portions of Ontario Street where she was driving at the alleged rate of speed. The defendant did not testify as to the rate of speed of her motor vehicle when it was travelling in a northerly direction on Ontario Street, approaching its intersection with Donald Campbell Avenue.

[82] When I consider the defendant's vague testimony as to her belief that she was driving her motor vehicle at a rate of speed of 60 kilometres per hour, in the context of Constable Bendiks detailed testimony, bolstered by his investigative notes and based on evidence derived from a precise and well-recognized speed measuring device, I find that I am not left in a state of reasonable doubt as to the fact that the defendant was, at the material time, driving her said motor vehicle at a rate of speed of 88 kilometres per hour. This was the rate of speed recorded by the subject radar device. It constitutes, on a prima facie basis, accurate and reliable evidence of the rate of speed of the defendant's motor vehicle at the material time.

[83] In light of my finding that the defendant's exculpatory evidence has not left me in a state of reasonable doubt relative to the allegation that she was operating her motor vehicle at a rate of speed of 88 kilometres per hour, I am convinced beyond a reasonable doubt, by the testimony of Constable Bendiks, that the defendant was at the material time, driving her motor vehicle on Ontario Street just south of its intersection with Donald Campbell Avenue, at a rate of speed in excess of the posted 50 kilometres per hour speed limit, of 88 kilometres per hour.

[84] I therefore find that the prosecution has established all of the elements of the actus reus of the subject charge of speeding, 88 kilometres per hour in a posted 50 kilometres per hour community-safety zone, beyond a reasonable doubt.

(ii) Whether the prosecution has proven all of the elements of the actus reus of the subject offence of fail to surrender permit for motor vehicle?

[85] Based on the totality of the undisputed evidence before me, I am satisfied that the following elements of the actus reus of the offence of fail to surrender permit for motor vehicle herein, have been established beyond a reasonable doubt:

1. that on the 20th day of February, 2011, at a point in time shortly after 10:08 a.m., the defendant, Wei-Ling Ko was driving a 1998 Volvo motor vehicle on Ontario Street near its intersection with Main Street, in the Town of Milton;

2. that at or about that time Police Constable Adam Bendiks, a police officer employed by the Halton Regional Police Service, conducted a traffic stop of the motor vehicle being driven by the defendant at a location on Ontario Street, just north of Main Street;

3. that upon stopping the said motor vehicle, Constable Bendiks approached the defendant and demanded that she surrender the permit for the motor vehicle, which she was driving; and

4. that Ontario Street in the Town of Milton is a "highway" as that term is defined in the H.T.A.

[86] The only issue in dispute relative to the actus reus of this particular charge, is whether or not the permit was actually surrendered by the defendant to Constable Bendiks.

[87] Constable Bendiks stated that the defendant failed to produce the permit to him as requested. On the other hand, the defendant claimed that she gave the permit to the police officer as part of a number of documents which she surrendered to him. She acknowledged, however, that in producing the documents to the officer, she was not able to specifically identify the permit for the motor vehicle because she was not able to recognize it. She advised that she believed that the permit was one of the documents which she gave to Constable Bendiks, because she produced to him all of the documents which were contained in a "wallet or folder" located in the "glove box" of the motor vehicle, and that prior to driving the vehicle on the subject date she had been advised by her mother that all of the documents relative to the vehicle were "in the car".

[88] In light of the fact that there is conflicting evidence before me as to the element of whether the defendant actually surrendered the permit for the subject motor vehicle to the investigating police officer, I must analyze the totality of the evidence in accordance with the principles set out in Regina v. W.(D.), supra. In particular, I am required to ask myself whether the defendant's exculpatory evidence considered in the context of the evidence as a whole, raises a reasonable doubt as to her guilt of the charge of fail to surrender permit for motor vehicle.

[89] The defendant's testimony relative to the charge of fail to surrender permit for motor vehicle was delivered in a concise manner. Her testimony in this regard was detailed and she did not attempt to evade any of the probing questions posed of her by the prosecution during cross-examination. In fact, the foundation of her exculpatory evidence was not shaken as a result of cross-examination.

[90] On the other hand, there was an internal inconsistency in her testimony-in-chief, which, appeared to show that the defendant was ambivalent as to whether or not she had actually surrendered the permit for the motor vehicle to the police officer at the material time. During her testimony-in-chief she initially described the circumstances of responding to the police officer's demand for documentation including the production of a permit for the motor vehicle, by stating that she provided the officer with everything in the glove box of the vehicle, including a wallet containing a number of documents. She asserted that she had provided the permit to the officer by giving him the wallet, based on the fact that when she returned home that day her mother advised her that the permit was in fact contained within the said wallet.

[91] In my view, however, the strength her assertion in that regard was significantly diminished by her subsequent statement made at the close of her testimony-in-chief, when she stated: "Oh, well I failed to provide the permit, but I guess he wasn't able to find it". This statement seems to reflect an uncertainty on the part of the defendant, as to whether she had, at the material time, actually surrendered the permit to the police officer.

[92] On the other hand, Constable Bendiks presented his testimony relative to the subject offence in a clear and concise manner. His testimony was internally consistent and he did not appear to evade any question posed of him by the defendant during cross-examination, relative to the subject charge. Furthermore, the strength of his testimony was not weakened as a result of cross-examination. I find the officer's testimony relative to the said offence to be both credible and reliable.

[93] In his testimony, Constable Bendiks stated that in response to his demand for the production of a driver's licence, the permit for the motor vehicle and proof of insurance for the motor vehicle, the defendant provided "multiple documents" to him "one at a time". He went on to state that he could not recall the defendant handing him a wallet or folder. He advised that while the defendant surrendered her driver's licence and proof of insurance for the motor vehicle to him, she did not produce the permit for the motor vehicle.

[94] In considering the defendant's exculpatory testimony in the context of the evidence proffered by the prosecution herein, I find that I am not left in a state of reasonable doubt that the defendant failed to actually surrender the permit for the motor vehicle to Constable Bendiks at the material time. In reaching this conclusion, I am of the view that the defendant's assertion may not be considered sufficiently reliable to raise a reasonable doubt that she did not provide the permit to Constable Bendiks, in accordance with his request.

[95] By her own admission, the defendant did not know what the permit document looked like. She was unable to identify the subject document at the time. In her evidence she stated that she was relying upon the officer to look through a wallet or folder, which she purportedly produced to the officer, to find the subject document in the folder. While she steadfastly asserted that she handed the wallet or folder to the officer as a means of producing the permit document, she could only state that she believed that she gave the permit to the officer because she handed everything in the glove box of the vehicle, including the wallet which she later learned contained the permit, to the officer. Despite her belief that she had surrendered the permit document to the officer, she was ambivalent as to whether she had actually given the document to him.

[96] The defendant's assertion that she believed that she had surrendered the permit for the motor vehicle was based upon the fact that she had discovered the permit in the wallet at a later point in time. In my view there is insufficient reliable evidence before me to leave me in a state of reasonable doubt that the permit was in fact contained within the wallet at the relevant time.

[97] Furthermore, the defendant was vague and at times inconsistent in her testimony as to how she proceeded to surrender the relevant documents to the officer. During cross-examination, the defendant stated that in complying with the officer's demand for the production of the subject permit, she took the "folder" out of the glove compartment and that she then proceeded to take five documents out of the folder; being all of the documents in the folder, and handed the documents to the police officer. On the other hand, during her testimony-in-chief, the defendant seemed to indicate that she gave the officer "everything in the glove box" including the said wallet. At that point in her testimony, she did not advise that in providing the permit to the officer she took five pieces of paper, which "looked like official documents", out of the wallet.

[98] As stated above, I am of the view that the defendant's exculpatory evidence that she actually surrendered the permit for the subject motor vehicle to the officer, weighed in the context of the totality of the evidence, is not sufficiently reliable to leave me in state of reasonable doubt as to the veracity of the allegation that she had, in fact, failed to surrender the permit at the material time. I find, however, that the preponderance of the evidence leads me to the inference that the defendant did not purposely fail to surrender the permit, when requested by the officer. I am able to logically conclude that the defendant honestly believed that she had complied with the police officer's demand to surrender the permit by providing him with all of the documentation contained in the "folder" which she had located in the glove compartment of the motor vehicle at the subject time.

[99] Accordingly for the foregoing reasons, I have rejected the defendant's exculpatory evidence that she actually surrendered the subject permit to the police officer at the material time. On the other hand, I am convinced, beyond a reasonable doubt, by the testimony of Constable Bendiks that the permit was not, at the said time, actually surrendered to him by the defendant.

[100] I find, therefore, that the prosecution has established all of the elements of the actus reus of the subject offence of fail to surrender permit for motor vehicle, to the standard of proof beyond a reasonable doubt. The mental element of negligence is automatically imported into this strict-liability offence and the legal burden of proof now shifts to the defendant to attempt to show that in committing the prohibited act, she exercised reasonable care by either acting on the basis of a reasonable mistake of fact or taking all reasonable steps to avoid the particular event. If the defendant is able to establish either branch of the defence of reasonable care, on a balance of probabilities, she will be excused of liability of the subject offence.

(iii) Whether the Defendant has proven the defence of reasonable care relative to the subject offence of fail to surrender permit for motor vehicle, on a balance of probabilities?

[101] As stated in Regina v. Sault Ste. Marie, supra, the defence that the accused took all reasonable care (the defence of due diligence), "involves a consideration of what a reasonable man would have done in the circumstances". In the said decision, Dickson J. stated that the defence of reasonable care "will be available if the accused reasonably believed in a mistaken set of facts, which, if true, would render the act or omission innocent or if he took all reasonable steps to avoid the particular event".

[102] In Regina v. Kurtzman, 4 O.R. (3d) 417 (Ont. C.A.), Tarnopolsky J.A. stated that "the due diligence defence must relate to the commission of the prohibited act, not some broader notion of acting reasonably".

[103] In Regina v. Stelco Inc., [2006] O.J. No. 3332 (Ont. Sup. Ct.), Whitten J. noted that "due diligence imports a standard of objective reasonableness, a honest subjective belief is not enough".

[104] In commenting on the due diligence defence in his appellate decision in Regina v. Nitrochem Inc. and Transport Provost Inc., [1993] O.J. No. 3336 (Ont. Prov. Ct.), Anderson J. stated as follows:

An analysis of the defence reveals two possible arguments. First it is open to the accused to establish that he reasonably believed in a mistaken set of facts which if true would have rendered the act or omission harmless. The second branch of the argument is that the accused did everything reasonably within his power to avoid the event. In practical terms however, the two aspects of the defence ultimately converge since to establish the reasonableness of the mistaken belief an inquiry is necessary to determine whether the accused did everything reasonably within his power to ascertain the true state of affairs.

[105] In Regina v. Courtaulds Fibres Canada, [1992] O.J. No. 1972 (Ont. Prov. Ct.), Fitzpatrick J. made the following statement which, in my view, is quite germane to the definition of the defence of due diligence:

Reasonable care and diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt and continuing action. To demand more, would, in my view, move a strict liability offence dangerously close to one of absolute liability.

[106] In his decision in Lévis v. Tétreault, supra, at paragraph 30, LeBel J. made the following comments in finding that the defendant had not proven the defence of due diligence on a balance of probabilities relative to an offence of operating a motor vehicle without a driver's licence, contrary to section 93.1 of the Highway Safety Code of the Province of Québec:

In Mr. Tétreault's case, the judgments of the courts below confused passivity with diligence. The accused did no more than state that he expected to receive a renewal notice for his licence and that he had confused the licence expiry date with the due date for paying fees required to keep the licence valid. He proved no action or attempt to obtain information. The concept of diligence is based on the acceptance of a citizen's duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence in criminal law. Consequently, the acquittals are unfounded in this case. The Municipal Court should have found the respondent guilty as charged and imposed the fine prescribed by law.

[107] In the case at bar, the defendant failed to make final legal submissions on her own behalf, pertaining to the evidence before me. She did not, therefore, present to the court the proposition that the evidence in this proceeding established, on a balance of probabilities, that in committing the actus reus of the subject strict liability offence of fail to surrender permit for motor vehicle, she took all reasonable care. I am, however, of the view that the totality of the evidence before me raises the spectre of the argument that the defendant committed the actus reus of the subject offence on the basis of an honest and reasonable mistake of fact.

[108] As stated above, I am satisfied that the defendant did not deliberately fail to surrender the subject permit. In fact, her testimony supports a finding on a balance of probabilities that she believed that she had given the permit to the police officer, by producing a number of documents contained in a folder found in the glove compartment of the subject motor vehicle.

[109] The question which I must resolve is whether based on the totality of the evidence it is more probable than not that the defendant harboured an objectively reasonable belief that one of the five documents which she handed to the police officer at the material time, was the permit for the subject motor vehicle.

[110] In weighing all of the evidence before me in this proceeding on a balance of probabilities, I am of the view that the defendant has failed to meet her onus to prove that in committing the subject offence, she either acted on the basis of a reasonable mistake of fact or took all reasonable steps to avoid the particular event. In reaching this conclusion, it is apparent that the defendant failed to take all reasonable steps to inform herself of what the permit for the motor vehicle looked like and where the document was located within the vehicle.

[111] The H.T.A. places a positive duty on drivers of motor vehicles on highways to be able to surrender certain documentation relative to the operation of a motor vehicle, upon the demand of a police officer. One of the documents which must be produced by a driver to a police officer, on demand, is that of the permit for the motor vehicle being driven by the driver. In order to be able to discharge this duty, directly related to the privilege of being authorized to drive a motor vehicle on a highway in the Province of Ontario, a driver is expected to take specific and continuing steps to inform him or herself as to the appearance of such a document and to know where to immediately locate such a document in the event that the surrender of the document is mandated.

[112] In the case at bar, the defendant stated that while she knew what a permit was, she did not, at the material time, know what it looked like. She testified that prior to the commencement of her operation of the subject motor vehicle on February 20th, 2011, her mother advised her that all of "our documents" were in the car. She did not indicate, however, whether she was informed by her mother as to the specific nature of the said documents or as to the specific location of such documents within the vehicle.

[113] There is no evidence before me to show that prior to starting to drive the subject motor vehicle on the date in question, the defendant took steps to look at the relevant documentation including the permit for the motor vehicle, so as to familiarize herself with the appearance and location of the permit and to satisfy herself that it was both valid and current. It would appear that while the defendant had some knowledge of the fact that the documentation for the vehicle was located in the glove compartment for the vehicle, there is no evidence before me by which I could, on a balance of probabilities, objectively infer that the defendant took "decisive, prompt and continuing action" to inform herself of the appearance of the permit document or location of the document prior to operating the motor vehicle, in order to be able to discharge her duty to surrender the permit or a copy thereof for inspection, if called upon to do so by a police officer.

[114] In my view, the evidence before me in this proceeding leads me to a conclusion that while the defendant honestly and subjectively believed that the permit for the subject vehicle was one of the five documents which she took out of the folder located in the glove compartment and handed to Constable Bendiks, her belief in that regard may not be considered to be objectively reasonable. In my view, a reasonable person would have taken further action to, in the words of LeBel J. in Lévis v. Tétreault, supra, accept his or her "civic duty to find out what his or her obligations are". The defendant's actions in failing to familiarize herself with the appearance of the permit, failing to inform herself as to the specific location of the document within the vehicle and, most notably, failing to enter into a dialogue with the police officer as to the nature of the documents which she provided to him in an effort to take all reasonable steps to attempt to ascertain the true state of affairs relative to the documents which she did surrender, are indicative of the defendant's passive ignorance of the subject circumstances in the context of her duties as a licensed driver.

[115] Accordingly for the reasons stated above, I am of the view that based upon the totality of the evidence, the defendant has failed to discharge her burden of proving, on the preponderance of the evidence, either branch of the defence of reasonable care. I am not satisfied by the evidence that it is more probable than not that at the material time the defendant harboured an honest, but objectively reasonable belief that she had actually surrendered the permit to Constable Bendiks. Furthermore, I am not persuaded by the evidence before me that it is more probable than not that prior to the time that she commenced driving on the date in question, the defendant took adequate action to attempt to apprise herself of the necessary information to permit her to be able to immediately comply with a demand to surrender the permit for the subject motor vehicle.

[116] In light of my finding in this regard, the defendant is presumed to be negligent in committing the subject strict liability offence. She is not therefore, excused of liability for this offence.

THE DECISION

[117] The prosecution has proved all of the elements of the actus reus of the charge against the defendant, Wei-Ling Ko, that she on or about the 20th day of February, 2011, at the Town of Milton did drive a motor vehicle on a highway at a greater rate of speed than 50 kilometres per hour, to wit: 88 kilometres per hour in a posted 50 kilometres per hour community safety zone, contrary to section 128 of the H.T.A, beyond a reasonable doubt. Accordingly, the mental element of this absolute liability offence, being that of negligence, is automatically imported into the offence. The defendant is therefore found guilty of the said charge and a conviction is registered.

[118] Furthermore, the prosecution has proved all of the elements of the actus reus of the charge against the defendant, Wei-Ling Ko, that she, on or about the 20th day of February, 2011, at the Town of Milton, did operate a motor vehicle and did fail to surrender a permit, contrary to paragraph 7(5)(a) of the H.T.A, beyond a reasonable doubt. Accordingly the mental element of this strict liability offence, being that of negligence, is automatically imported into the offence.

[119] The defendant has failed to prove, on a balance of probabilities, that in committing the actus reus of the said offence, she took all reasonable care. She has not, therefore, succeeded in negating her presumed negligence in committing the offence and is not excused of liability therefor.

[120] The defendant is therefore found guilty of the said charge under paragraph 7(5)(a) of the H.T.A., and a conviction is registered.

Released: August 12th, 2013

Signed: "Justice of the Peace Kenneth W. Dechert"

Footnotes

[1] Regina v. W.(D.), [1991] 1 S.C.R. 742 (S.C.C.) at paras. 26, 27 and 28, per Cory J.

[2] Regina v. Defaria, 2008 ONCJ 687, [2008] O.J. No. 5427 (Ont. C.J.) at para. 16, per Duncan J.