Court Information

Ontario Court of Justice

Date: 2015-03-13

Court File No.: Goderich 12-0122

Parties

Between:

Her Majesty the Queen

— And —

Andrew Lowry

Judicial Information

Before: Justice Brophy

Heard on: 24 November 2014

Reasons for Judgment released on: 13 March 2015

Counsel

Teresa Donnelly — counsel for the Crown

Bernie VanPelt — paralegal for the defendant Andrew Lowry

BROPHY J.:

INTRODUCTION

[1] This is an appeal pursuant to section 116 of the Provincial Offences Act from a conviction for stunt driving contrary to section 172(1) of the Highway Traffic Act. The conviction was entered after trial on September 10, 2013 and the appellant was fined $3,000.00.

FACTS

[2] The background facts with respect to this matter are as follows. On Monday, July 16, 2012, Constable Phillis of the Ontario Provincial Police was on patrol on the Bluewater highway in the municipality of Central Huron. The posted speed limit at the relevant location was 80 km/h.

[3] The evidence of the officer was that at 6:48 PM she observed a motorcycle travelling on Bluewater highway at a speed above the posted limit. The officer was operating an unmarked cruiser equipped with a Genesis Decatur II directional radar unit. She had been trained to operate this device by someone she understood to be a certified instructor. Constable Phillis had tested the radar at the beginning of her shift and found it to be in proper working order.

[4] Upon activating the radar the officer obtained a speed reading of the motorcycle at 163 km/h. Her evidence is that she observed the motorcycle reduce its speed and she locked in the speed reading at 149 km/h. The officer conducted a traffic stop and the driver was identified as the appellant Andrew Lowry. Officer Phillis charged the appellant with the offence under section 172(1) of the Highway Traffic Act. Later that evening at approximately 8:00 pm she tested the radar device again and it was found to be in proper working order.

ISSUES

[5] The grounds for appeal included the following:

(a) That the paralegal agent for the appellant acting at the trial failed to inform the appellant about the date for the trial and consequently he did not attend. The appellant asserts that he has a right to make a full answer and defence including the right to be present and furnish evidence and that this right was defeated through no fault of his own.

(b) That the trial Justice of the Peace was in error in finding that a manual related to radar devices included only "minor recommendations". The assertion is that the testing procedures for the device are mandatory and need to be followed in each case and that the trial Justice of the Peace erred in not so finding.

(c) That the trial Justice of the Peace erred in finding that the investigating officer had been properly trained as a qualified radar operator.

[6] When the appeal was argued the paralegal then acting for the appellant abandoned the first ground of appeal as there was no evidence presented to the court upon which an argument could be made that the appellant was not notified of the date for the trial.

APPELLANT'S ARGUMENT

[7] The first argument is that neither the investigating officer nor the Justice of the Peace had the authority to override the manufacturer's instructions because they are not experts with reference to the particular device in question. In the appellant's submission the testing procedures are mandatory and need to be followed in each single case prior to any enforcement action. The court's failure to draw an adverse inference due to the breach of the manufacturer's directions constituted a misapplication of the law.

[8] The argument is that when the manual says that the absence of the tracking history should result in no enforcement action being undertaken would suggest that the Justice of the Peace was in error in relying upon the evidence of the radar device. Simply put the argument is that this should cast the reliability of the results obtained by the device into some doubt. See R. v. Kololgi, [2009] O.J. No. 5742 and R. v. Niewiadomski, [2004] O.J. No. 478.

[9] A supplementary argument on this point in response to the Crown position is that the provision of an expert is not necessary to interpret the manual because it is plainly worded and clear.

[10] Further the defence argues that the Justice of the Peace erred in finding that the officer who instructed Officer Phillis in the use of the radar device was a qualified instructor. The Justice of the Peace found that there was no evidence indicating that he was not a qualified radar instructor and that was sufficient. The appellant argues that this is insufficient and is a form of reversing the burden of proof. The argument then follows that without proper proof of the training officer being qualified the training of Officer Phillis would be in doubt and therefore her operation of the radar device would be unreliable. See R. v. Guglietti, [2004] O.J. No. 6218.

CROWN ARGUMENT

[11] The Crown points out that the only evidence presented by the appellant was the filing of a manual with respect to the radar device used by the investigating officer. However no expert evidence was called to interpret the manual on the issues raised by the defence. The Crown argues that the appellant did not tender any evidence at the trial that supports an assertion that a police officer has no discretion with respect to the performance of any particular tests and that the failure to perform those tests is a sufficient ground to prohibit any use of the radar unit.

[12] As for the training of Officer Phillis the crown argues that the Justice of the Peace was entitled to rely on the evidence of the police officer with respect to her training, which she found to be credible.

[13] The Crown argues that the Justice of the Peace was alive to the issues and considered same carefully.

STANDARD OF REVIEW

[14] The standard of review in section 116 appeals is usefully commented upon in Ontario (Ministry of Labour) v. EFCO Canada Co., 2012 ONSC 149, where the following appears:

28 The Provincial Offences Act, R.S.O. 1990, c. 33, s. 120(1) states:

On the hearing of an appeal, the court by order,

(a) may allow the appeal where it is of the opinion that,

(i) the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law,

(iii) or on any ground, there was a miscarriage of justice.

29 The Crown submitted that I am not to interfere with the decision of the trial judge unless the findings are the product of a palpable and overriding error. In this regard, the Crown relied on the authority, H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401.

30 This authority goes on to say, however, that the test is met when the trial judge's findings can be characterized as unreasonable or unsupported by the evidence. (Para. 56), the wording codified in s. 120 above.

31 I note the Ontario Court of Appeal decision in Waxman v. Waxman, [2004] O.J. No. 1765 (C.A.), and at paragraph 296, I quote:

The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error is one that is obvious, plain to see or clear.

At paragraph 297, the court states:

An overriding error is an error that is sufficiently significant to vitiate the challenged finding of fact.

32 R. v. Prince Metal Products Limited is a June 2011 endorsement of Justice Hoffman of the Ontario Court of Justice and involves an appeal under the OHSA. At paragraph 20 the learned judge states,

The standard of review on questions of law is correctness. The standard of review on findings of fact is palpable and overriding error.

ANALYSIS

[15] In this case the Justice of the Peace said that the tracking recommendation set out in the manual were not followed to the letter due to their practicality in light of the particular fact situation and that this failure does not render the functioning of the radar unit invalid. This was because of the very short time line involved, the unusual rate of speed of the motorcycle and the requirement that the officer act immediately. Essentially the Justice of the Peace found that the inability of the officer to make a physical observation that was beyond ordinary capacity and the lack of a note with respect to the correlation of the speed of the cruiser and the motorcycle did not impact on the functioning of the radar device. The Justice of the Peace adopted the observations made in R. v. Volfson, [2009] O.J. No. 1978, which was to the effect that some of the requirements set out in the manual would in some circumstances border on the absurd.

[16] In Volfson, Justice Klein said it this way:

18 Manufacturer's directions are not statutory requirements and should not be elevated to that status. They are not written for that purpose nor have they been adopted as such.

19 Reducing the requirement that all tests be performed at "start and conclusion of [the] tour of duty" has no purpose, other than to ensure that the first stop of the day based on the device is as a result of accurate and reliable evidence gathered by using that device.

20 Courts should look to the practical effect of the requirements set out by the manufacturer. Practically they operate as a scheme or a checklist to ensure the accuracy and reliability of the radar device. They are meant to be complied with as part of this scheme or checklist. Slavish adherence to these directions is not required if it does not practically affect the accuracy or reliability of the results obtained by the radar device. To hold otherwise could and would result in absurd findings.

[17] In R. v. So, 2014 ABCA 451, [2014] AJ No.1442; 2014 ABCA 451, the Alberta Court of Appeal emphasized the same point - that manuals are instructive but not authoritative – as follows:

42 With respect to the appellant's reliance on Bernshaw and Crosthwait for the proposition that manuals of the sort excerpted into evidence here are authoritative, we accept that in both of those cases such information was received into evidence. In each case the manual was accorded the weight considered due in the circumstances. In neither case, however, did the Court hold that such manuals are authoritative in the sense urged upon us by the appellant, that whatever such a manual says ought to be done or must be done or should not be done becomes mandatory before the Crown can rely on the presumptions. If that were so, the drafters of such manuals would be exercising the power our constitution bestowed exclusively on Parliament.

[18] In this case the Justice of the Peace considered the manual and decided that certain aspects of the manual were not mandatory and that the officer had discretion as to whether she acted upon those portions of the manual or not. This analysis by the Justice of the Peace took into consideration the particular circumstances in play at the time. In my view this was a judicial consideration open to the Justice of the Peace. It was rational, reasonable and appropriate to the circumstances of the case.

[19] In the absence of expert evidence saying otherwise I am of the view that the Justice of the Peace was not in error in taking the approach she did and accordingly this ground for appeal is denied.

[20] The second ground for appeal, that is to say the complaint that there was no proof of the qualifications of the training officer instructing Officer Phillis on the operation of the radar unit, and that this somehow compromised her expertise, is simply not tenable.

[21] The evidence before the court is that Officer Phillis said that she was properly trained in the use of the instrument. The trial Justice of the Peace accepted that evidence. There was no evidence to say that she was not properly trained. In my view it is unnecessary, in the absence of some particularized issue leading one to think that her training was deficient, to go back and then ask for positive proof that the person who was assigned to train her had also been trained. What next – proof that the person who trained the trainer was also trained properly - and so on. This is an argument that is not helpful and indeed tries to create a never ending and repetitious sourcing of information that quickly loses any connection with the real world. It is a rabbit hole that one should not go down.

[22] Simply because Officer Phillis did not see with her own eyes the certificate of qualification of the training officer is not determinative. She was entitled to rely on what she was told and so was the Justice of the Peace.

[23] This ground of appeal also fails.

[24] The problem for the appellant is that there was no expert called who could point to deficiencies in the use of the device by Officer Phillis. She said that the instrument was working properly and that she used it in a proper fashion. The Justice of the Peace considered the evidence of Officer Phillis very carefully and found her to be an intelligent and careful witness who demonstrated expertise with respect to the use of the device and who clearly described her training in a fulsome manner. That evidence was accepted. The trial Justice of the Peace was entitled to do so. In the circumstances of this case nothing more was required.

CONCLUSION

[25] The standard of review is correctness on questions of law and palpable and overriding error on findings of fact. In this case the trial Justice of the Peace was correct in law and there is no error with respect to the findings of fact.

[26] For all of these reasons the appeal is dismissed.

Released: 13 March 2015

Signed: "Justice Brophy"