Court File and Parties

Court File No.: Halton – Milton - Certificate of Offence No. 1260-9537713B

Date: 2015-03-04

Ontario Court of Justice

Between:

Her Majesty The Queen

— and —

Sergey Andrianov

Before: Justice of the Peace Kenneth W. Dechert

Heard: October 15, 2014

Reasons for Judgment Released: March 4, 2015

Provincial Offences Court - Milton, Ontario

Counsel:

J. Stewart, for the prosecution

The defendant Sergey Andrianov on his own behalf.

Statutes, Regulations and Rules Cited

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, paragraph 128(1)(d), ss. 128(2) and ss. 128(11)
Ontario Regulation 615/90 - Signs

Cases Cited

Introduction

[1] Under Certificate of Offence no. 1260-9537713B, the defendant, Sergey Andrianov stands charged that he on the 24th day of January, 2014 at 3:01 p.m. at northbound Tremaine Road, north of Lower Base Line, in the Town of Milton, did commit the offence of speeding: 82 kilometres per hour in a posted 60 kilometres per hour zone, contrary to the Highway Traffic Act, section 128.

[2] The trial of this matter began before me on October 15th, 2014, when Mr. Andrianov entered a plea of not guilty to the subject charge. Upon completion of the trial on that date, the proceeding was adjourned to March 4th, 2015, for my judgment.

[3] The ultimate issue in this proceeding is whether the prosecution has proven all of the essential elements of the subject speeding charge, beyond a reasonable doubt. In this regard, I must remind myself that the defendant is presumed innocent of the said offence until proven guilty. The prosecutor bears the onus of proving the offence to the standard of proof beyond a reasonable doubt and that burden never shifts to the defendant.

[4] Based upon the undisputed evidence in this proceeding, the prosecution has established beyond a reasonable doubt, that on the 24th day of January, 2014 at approximately 3:01 p.m., Sergey Andrianov was driving a white-coloured Kia motor vehicle in a northerly direction on a highway, to wit: Tremaine Road, north of Lower Base Line, in the Town of Milton, in the Region of Halton. Accordingly, the issues in this proceeding are as follows:

whether, at the material time, the defendant was driving the said motor vehicle on Tremaine Road within a posted 60 kilometres per hour speed limit zone? and
whether, at the material time, the defendant was driving the said motor vehicle on Tremaine Road, at a rate of speed greater than 60 kilometres per hour?

The Law

(i) Relevant Statutory Provisions

[5] In this proceeding it is alleged that at the material time, the defendant was driving a motor vehicle on a highway located within a municipality, at a rate of speed greater than 60 kilometres per hour, contrary to section 128 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as "the H.T.A.". In my view, the following subsections of section 128 are relevant to the subject charge:

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)…;

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 of speed 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.

128(11) No by-law passed under this section or regulation made under clause (7)(c) becomes effective until the highway or portion of it affected by the by-law or regulation, as the case may be, is signed in accordance with this Act and the regulations.

[6] Ontario Regulation 615, made under the H.T.A., R.R.O. 1990, Reg. 615, as amended, titled "Signs", sets forth technical specifications for the erection of speed limit signs on highways in the Province of Ontario, including the size, design and location of such signs.

(ii) Relevant Common Law

[7] In its decision in Regina v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.), the Ontario Court of Appeal appeared to approve the decision of the Quebec Court of Appeal in D'Astous v. Baie Comeau, 74 C.C.C. (3d) 73 (Que. C.A.), in respect of the issue of the evidentiary basis for a conviction for speeding based on a speed measurement obtained by radar. In her decision in Vancrey, Feldman J.A. stated, in part, as follows:

…In that case [D'Astous v. Baie Comeau, supra.] the court held that judicial notice could be taken of the fact that radar is used to measure the speed of automobiles and that the principle upon which it is based can be found in any encyclopedia. However, in each case, the Crown must still prove that the particular radar device was operated accurately at the time. To do that the Crown must show:

The operator was qualified: he followed a course, he passed an exam, he has several months' experience;

The device was tested before and after the operation;

The device was accurate as verified by a test and that the tuning fork used was accurate. Once evidence is led to demonstrate those facts, then the radar reading becomes prima facie evidence of the speed of the vehicle, subject to evidence to the contrary, if any.

[8] In his decision in Regina v. Williams, [2008] O.J. No. 1078 (Ont. C.J.), Pockele J. made, in part, the following comments pertaining to the essential elements of the offence of speeding:

…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 the case of D'Astous v. Baie Comeau (Que. C.A.) [supra.], the Court primarily dealt with the issue of judicial notice regarding the operation of radar speed detection devices. As a secondary point, the accuracy of such a device is not to be 'presumed' but rather must 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 process 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 new suggested testing procedures no longer requires the use of a tuning fork. Baie Comeau does not stand for the proposition that it is an essential element of the offence to test every speed detection device with a tuning fork, particularly where it is not deemed necessary by the manufacturer and there is no evidence before the court casting any doubt upon the prima facie accuracy of the speed detection device.

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 in the Alberta [case of] R. v. Werenka, [(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.

[9] In her decision in Regina v. Niewiadomski, [2004] O.J. No. 478 (Ont. C.J.), Schnall J. opined that a court may infer that evidence of the rate of speed of a motor vehicle obtained through the use of radar or laser speed measuring devices is reliable, provided that the evidence before the court as to the use and working order of the device and the qualifications of the operator are uncontradicted.

[10] In that regard, Madam Justice Schnall stated, in part, as follows:

Where, however, as in the case before me, the defence through cross-examination challenges the training and qualifications of the operator, and the operation of the device and whether it was in proper working order, judicial notice cannot be taken of the reliability and accuracy of the readings. The court must consider whether the cross-examination of the police officer and the admissions he made raise a reasonable doubt.

I was referred to a number of cases by Ms. Charron, for the prosecution (respondent). These include: R. v. Grainger [1958] O.J. No. 218; D'Astous v. Baie Comeau (Ville) (1992), 74 C.C.C. (3d) 73; and R. v. Giffin, [1980] N.S.J. No. 17, CH33207.

These cases do not advance the respondent's case beyond the position which I already accept; that is, that where the prosecution presents evidence as to the qualifications of the operator, as to the device being in proper working order both before and after the incident, and as to its proper operation, the Crown will have established a prima facie case. A prima facie case can support a conviction unless the defence raises a reasonable doubt through independent evidence, or through cross-examination of the Crown witness.

[11] In his decision in Ontario v. Druce, [2006] O.J. No. 2028 (Ont. C.J.), Megginson J. concluded that the posting of speed limit signs on a highway located in a municipality was sufficient proof of the existence of a municipal by-law establishing a maximum rate of speed for that highway. In making this decision, the said jurist made the following comments in paragraphs 13 and 14 therein:

In Boyd-Gibbons v. Skinner, [1951] 1 All E.R. 1049 (U.K.K.B.), after reviewing the Road Traffic Act permitting a local authority to establish speed zones where a direction had been given under the Act that the road was deemed to be a 'road in a built-up area', the Court set aside an acquittal at trial, holding that the presence of the speed limit signs, which must be deemed to have been lawfully erected by the local authority (being obligated to do so), was prima facie proof that a direction had been given under the highway traffic legislation, and in the absence of evidence to displace that proof, the Respondent should have been convicted. …

In R. v. Clark (1974), 18 C.C.C. (2d) 52 (Ont. C.A.), the Court held, in effect (in answers to the four stated questions):

(1) It is not necessary for the Crown to prove the existence of a subsisting municipal by-law passed pursuant to [now s. 128] of the Highway Traffic Act, establishing the permitted rate of speed;

(2) Evidence of the posting up of the subject area with signs designating a maximum permitted rate of speed is evidence of the existence of a subsisting municipal by-law;

(3) Proof of the existing, subsisting municipal by-law creating a maximum permitted rate of speed in the subject area is not an essential element of the offence; and

(4) Viva voce evidence tendered by the Crown of a speed limit sign is sufficient evidence to find a defendant guilty.

The Court found Boyd-Gibbons v. Skinner indistinguishable.

[12] In his decision in Regina v. Garbarino, 2010 ONCJ 300 (Ont. C.J.), Le Dressay J. determined that the presumption of regularity applied to the specifications codified in Ontario Regulation 615 under the H.T.A. relative to the design and erection of speed limit signs. In that regard, he made the following comments in paragraph 20 of his decision:

Surely in regulatory offences such as speeding, which is a common and may be the most frequently charged Highway Traffic Act offence, a trial court is entitled to apply the presumption of regularity to the requirements of Regulation 615 which sets out in minute detail the requirements necessary for speed limit signs which are voluminous and well recognized in the Province of Ontario on all highways and would be a factor in many speeding trials.

The Evidence

(i) The Testimony of Police Constable Timothy Childs

[13] During the course of the trial, I received the testimony of Police Constable Timothy Childs of the Halton Regional Police Service tendered by the prosecution and the testimony of the defendant.

[14] During examination-in-chief, Constable Childs testified that on January 24th, 2014, he was assigned to uniform patrol duties in the Town of Milton. He advised that on that date, he was operating an unmarked police motor vehicle, which was equipped with a radar device. He described this device as a "Genesis II Select", bearing serial number 13376. He noted that the radar device was installed in the said police vehicle and that it had two antennae; one located in the front of the vehicle and the other in the rear. He stated that he was qualified as an operator of this particular device and had used it on several occasions. He went on to state that he utilizes this device "as a speed measuring device", noting that it is capable of measuring the speed of a moving motor vehicle.

[15] Constable Childs testified that he is a qualified radar operator and has been so qualified since 1989, when he was a police officer with the Toronto Police Service. He advised that he became a member of the Halton Regional Police Service in September 2000, when he continued to maintain his status as a qualified radar operator. He noted that during his tenure with the Halton Regional Police Service he has used several types of radar speed measuring devices, indicating that he began using the "Genesis II Select" device "most recently". He advised that he would typically be re-qualified as a radar operator on an annual basis and that he was last re-qualified as an operator of the Genesis II Select radar device "within the past year", prior to the time of his testimony on October 15th, 2014.

[16] Constable Childs testified that at 10:00 a.m. on January 24th, 2014, he tested the said radar device. He advised that upon conducting internal tests on the unit, in accordance with manufacturer's instructions, he found it to be "working properly". He stated that he then tested the device on the road by comparing the digital patrol speed shown on the device with the speed indicated by the speedometer of his police vehicle, noting that the speeds were identical. Accordingly, he was "satisfied" that the subject radar device was in proper working order.

[17] Constable Childs testified that at approximately 3:01 p.m. on the said date, he was driving the said unmarked police vehicle containing the said radar device, in a southerly direction on Tremaine Road, north of Lower Base Line, in the Town of Milton. He described the weather conditions that day as being "inclement", noting that the wind was strong and that there was "blowing snow in the area". He advised that at that time, he observed a white-coloured motor vehicle, which he later identified as being a Kia motor vehicle, travelling in a northerly direction on Tremaine Road towards his location, approximately 150 to 200 metres in front of him. He stated that at that time he observed his patrol speed to be 48 kilometres per hour. He estimated the approaching motor vehicle was travelling at a rate of speed of approximately 80 kilometres per hour, in the posted 60 kilometres per hour speed zone. Furthermore, he stated that the said Kia motor vehicle was the lone motor vehicle in his path at that time.

[18] Constable Childs testified that upon making these observations, he activated the front antenna of the Genesis II Select radar device in his vehicle and received a speed reading for the approaching motor vehicle of 82 kilometres per hour. Upon obtaining the speed reading, the officer immediately activated the emergency lights on his police vehicle, conducted a "quick" u-turn into the northbound lane and proceeded to stop the targeted vehicle.

[19] Upon stopping the vehicle Officer Childs observed that it was a Kia motor vehicle. The officer identified the driver of the vehicle as the defendant, Sergey Andrianov, by means of a valid Ontario driver's licence. He then issued an offence notice to Mr. Andrianov for the offence of speeding 82 kilometres per hour in a posted 60 kilometres per hour zone.

[20] Constable Childs testified that after he issued the offence notice to Mr. Andrianov, he proceeded to conduct "another test of the radar device", noting that it was "still working properly". The officer advised that he performed this test at 3:12 p.m.

[21] In response to the prosecutor's question as to how he would describe the visibility on the day in question, Constable Childs stated as follows:

The visibility was fine in my particular location. I had no obstructions whatsoever with the defendant's motor vehicle. Further north, however, it might not have been so great at one point but it never affected this particular instance.

He advised that he never lost sight of the vehicle being operated by Mr. Andrianov from the time that he first observed it until the time that he stopped it in the northbound lane of Tremaine Road.

[22] Constable Childs testified that the area of Tremaine Road where he obtained the speed reading for the defendant's motor vehicle was a posted 60 kilometres per hour speed zone. He stated that the said speed limit was posted on signage situated both to the north and to the south of the location where he was in when he obtained the said speed measurement. He advised that the said speed limit signs were "visible" at the time.

[23] During cross-examination, the defendant asked Constable Childs if he could explain the reference in his notes to "blowing snow", to which the officer responded: "that stretch of roadway is like farmers field so when it's snowing or there's snow on the ground, the wind blows it back up into the air". The defendant followed up on that question by asking the officer whether he observed the snow to be "blowing" at the time that he noticed the defendant's motor vehicle. The officer responded to that inquiry as follows:

As I indicated, the stretch of the roadway north of where I saw you, the road was – road conditions were very poor. The blowing snow caused the road to get iced up, very slippery, and those vehicles went in the ditch, a lot of them. When I saw you, I was beyond that stretch of roadway and perhaps there was still blowing snow but visibility was not any issue with respect to seeing you.

[24] The defendant then asked the constable to explain the general principles behind the calculation of the speed of an approaching vehicle by the radar device, when the police vehicle containing the device was also moving. The officer replied to this question as follows:

If I'm stationary and my antenna which is the device, it has an antenna pointed at a moving motor vehicle; it hits the object and sends back a frequency, back to the device. That's the speed reading that shows on the device. If I'm moving, it factors in my patrol speed of the vehicle; shoots out from the antenna to send back – as the vehicle is moving it shortens the length – frequency that comes back as my vehicle is pushing forward. So it actually essentially squishes the frequency, right, because there's not as much distance that comes back and it does its own calculation of the time frame from it to come back to the vehicle and it estimates or determines your vehicle's speed and mine just shows the patrol speed. So considering what my speed is and the time it takes to come back determines what the speed of your vehicle would be in an oncoming vehicle.

[25] In response to the defendant's query as to where the radar picks up the patrol speed, Constable Childs stated, in part, as follows:

The patrol speed is activated if you will when the device is in an activated mode. … So I could be driving around in my vehicle without it running all the time and then when I want to confirm a speed, I'll then activate the mode and it'll shoot out a beam and then the reading will come back. …

[26] Constable Childs went on to state that at the time he measured the speed of the defendant's vehicle by activating the radar device, he obtained two digital readings on the screen of the radar device; one showing his patrol speed at that time and one showing the speed of the defendant's vehicle.

[27] In responding to the defendant's query as to whether, at the time that he pressed the button to activate the radar on the defendant's approaching vehicle, he was able to pay attention to both the patrol speed and the speed of the defendant's vehicle, as well as the speed for his patrol speed shown on his speedometer, the officer responded as follows:

Well, no because that's a lot to hold to sort of glance at and then be expected within that brief couple of seconds to see all of that and the speedometer as well. You'd really be looking for the speedometer. But on those tests that I indicated, the road tests, according to the manufacturer's instructions, you activate the radar in the patrol, like, in a mode for oncoming vehicles and then you see a speed and then you see your patrol speed. And then at that point when you're testing it, you look at your speedometer and calculate to determine that they're the same; those speeds are consistent which determines that the patrol speed is in fact the odometer speed or speedometer speed and that, again, the visual observations of the speed reading returned has to be consistent with in my view, a visual estimations or a reasonable calculation. I've had a situation before where a false reading reflected like 250 kilometres an hour back based on electrical currents and things in certain areas. And if you see a vehicle and get a ridiculous reading, you know unless it's a rocket coming towards you that it's not that vehicle doing 250 kilometres an hour. So there's human reasonability with the device as well as realizing it's an instrument.

[28] The defendant then asked the officer if there are any circumstances where in the moving mode he would expect a slight error, in the range of a differential of 10, 15 or 20 kilometres per hour. The officer replied as follows:

In a straight forward vehicle straight into another vehicle, there's with the instruction I received, very, very minimal differential. If you parked on the side of the road in a stationary mode and you're way out at a different angle, the speed reading starts to deteriorate but on a straight on frontal speed is very, very consistent.

[29] During cross-examination, Constable Childs testified that he looked at the speed limit signs on Tremaine Road, located both to the south and to the north of the place where he stopped the defendant, in order to determine whether the signage was visible to motorists on that highway. In responding to the defendant's inquiry as to when he examined the signs subsequent to the time of the traffic stop, the officer stated as follows:

I remained in that area for a little bit more enforcement because we were required to be there for most of the accident situations. And I had gone back to confirm that your speed when you were going north was still 60 because I came from the north and it was 60. Several signs indicated 60 all the way through. I wasn't quite sure a hundred percent at that time how far back the 60 signs were going to be visible for northbound traffic, but I found that there was signage visible for you.

[30] In completing his cross-examination of the officer, the defendant asked the following question:

So when you made a u-turn trying to stop me and you're essentially saying you made another u-turn and turned back going south after we parted?

[31] Constable Childs responded to this question as follows:

Well, I don't remember exactly how that went. I spent some time in there and to your benefit though, I wanted to make sure that if you had an 80 sign and you were just going in to a 60, that I'm not giving you a ticket for an unreasonable speed when in fact you didn't have time for example to get your speed down. And I found myself in that situation that there was enough time, the signs were there that you should have been slowing that speed down, especially with the weather conditions.

(ii) The Testimony of Sergey Andrianov

[32] At the outset of his testimony Mr. Andrianov stated that he was very surprised when he was stopped by the police officer for speeding, remarking that "speeding is not my thing". He indicated that the theory of his defence is that the "speed reading was incorrect".

[33] Mr. Andrianov acknowledged that Constable Childs described the weather conditions at the relevant time "pretty well", however, he noted that the officer was unable to answer his question as to the direction of the blowing snow. In this regard, Mr. Andrianov advised that the snow was blowing in his direction and that the wind gusts were inconsistent, such that the snow would blow "in patches". He theorized that the adverse weather conditions were the cause of a false radar speed reading for his motor vehicle at the material time.

[34] At this point in his testimony, Mr. Andrianov began to read an excerpt from the user manual for the subject Genesis II Select radar speed measuring device into the record. I then intervened and refused admission of this evidence as it constituted prima facie hearsay. I then suggested to Mr. Andrianov that the Court could embark on a voir dire to allow him an opportunity of establishing the admissibility of the evidence under the principled approach to hearsay. After some discussion he declined the opportunity to attempt to establish the admissibility of the said information during a voir dire.

[35] Mr. Andrianov finished his testimony-in-chief by advising of his actions after he received the speeding ticket from Constable Childs, as well as his recollection of the officer's actions at that time. In that regard, the defendant testified that after he received the ticket from the officer, he sat in his car for an unspecified period of time. He stated that during this time he noticed that the police officer returned to his vehicle and proceeded to travel north on Tremaine Road. Mr. Andrianov advised that he then proceeded in a northerly direction on Tremaine Road until he reached the intersection of a street which ran in an easterly direction off of Tremaine, where he encountered a "huge line-up of cars", which he understood was related to a traffic accident.

[36] Mr. Andrianov believed that after issuing the speeding ticket to him, the police officer took immediate steps to travel in a northerly direction on Tremaine Road in order attend to the investigation of the traffic accident. He advised that in travelling towards the scene of the accident, it was apparent that "the officer did not have enough time or opportunity to ensure that the traffic sign was indeed visible in the weather conditions when he stopped me". He concluded his testimony-in-chief by making the following statement:

Anyways, to finish the story, after the traffic officer stopped me, he went northbound not southbound and I don't think he had the opportunity to turn around and make sure that the sign going from the south to the north of Tremaine Road was visible in this weather.

[37] During cross-examination Mr. Andrianov advised that he did not remain at the side of the road on Tremaine Road for a long period of time after receiving the speeding ticket. He estimated this time to be less than ten minutes. He stated that during this time he observed the police officer take off and travel northbound on Tremaine Road.

[38] Mr. Andrianov testified that after he left the scene of the traffic stop he travelled in a northerly direction on Tremaine Road and encountered a traffic jam at the intersection of Tremaine Road and Dymott Avenue. He advised that he had to turn around and proceed in a southerly direction on Tremaine Avenue in order to get around the traffic jam.

[39] During re-examination, Mr. Andrianov stated that a period of approximately 15 minutes had elapsed between the time that he left the scene of the traffic stop, travelled in a northerly direction to Dymott Avenue, encountered the traffic jam at Dymott Avenue, and turned around to go back to the scene of the traffic stop. He acknowledged therefore that if the police officer had returned to the area of the traffic stop on Tremaine Road to resume his speed enforcement activities after a period of 15 minutes, then he likely would have missed the officer.

Analysis

Issue #1 – Whether, at the material time, the defendant was driving the subject Kia motor vehicle on Tremaine Road, within a posted 60 kilometres per hour speed limit zone?

[40] In order to sustain a conviction against the defendant in this matter, the prosecution must prove, beyond a reasonable doubt, that at the material time, the defendant was driving a motor vehicle on a portion of Tremaine Road, designated as a 60 kilometres per hour speed limit zone. This essential element of the offence may be established through adduction of credible evidence showing that the subject speed limit had, at the material time, been posted by means of regulatory signs erected on the said highway.

[41] The only evidence before me in respect of this issue is the testimony of Police Constable Childs, which I find to be credible and reliable. The officer's uncontradicted evidence is that at the time that he obtained the speed reading for the defendant's motor vehicle, when it was approaching him by an estimated distance of between 150 and 200 metres, he was located within a posted 60 kilometres per hour speed zone.

[42] The officer unequivocally stated that the speed limit was posted in locations to the north and the south of his location at the time that he obtained the said speed measurement. Furthermore, during both examination-in-chief and cross-examination, the officer testified that the speed limit was posted on signs in the area which were visible for northbound traffic on Tremaine Road.

[43] In my view the credibility of the officer's testimony-in-chief pertaining to the issue of the existence of the speed limit signs was enhanced by his testimony during cross-examination. In response to questions posed by the defendant, Constable Childs explained that some-time after he issued the speeding ticket to the defendant on the subject date, he travelled to the area south of the location of the traffic stop on Tremaine Road, to confirm the existence of speed zone signs in the area where the defendant would have been travelling at the time that he obtained the subject speed reading. The officer stated that at that time, he noted the existence of several 60 kilometres per hour speed signs for northbound traffic on the subject highway.

[44] In assessing the credibility of Constable Childs' testimony relative to the speed limit sign issue, I have considered Mr. Andrianov's testimony relative to his observations of the actions of Constable Childs following the issuance of the subject speeding ticket. In my view the defendant's testimony that he observed the officer travel in a northerly direction on Tremaine Road immediately after the issuance of the speeding ticket, was not so inconsistent with the officer's version of the events as to affect the integrity and reliability of the officer's evidence respecting the signage issue.

[45] It is noted that during cross-examination, Constable Childs stated that after he issued the speeding ticket, he remained "in that area for a little bit more enforcement" because of the "accident situations". When he was specifically asked whether he made a u-turn to proceed south after he and the defendant had parted, the constable replied that he did not "remember exactly how that went". Accordingly, it does not appear that the police officer asserted that he attended to the examination of the speed limit signs south of the location of the traffic stop immediately after he had completed his dealings with the defendant. It does not appear therefore, that Constable Childs' testimony pertaining to his actions following the completion of the traffic stop is inconsistent with the defendant's testimony in that regard.

[46] During his testimony, Mr. Andrianov maintained that after leaving the scene of the traffic stop, Constable Childs immediately travelled in a northerly direction on Tremaine Road to the location of a traffic accident near the intersection of Tremaine Road and Derry Road. He stated that in light of the existence of the accident, it was unlikely that the officer would have had the opportunity to return to the location of the traffic stop and the area to the south of the traffic stop to examine the location of the speed limit signage.

[47] In my view, Mr. Andrianov's testimony in this regard is replete with assumptions and speculation as to Constable Childs' actions and whereabouts following the time of his interaction with the officer. It is clear that Mr. Andrianov had little opportunity to observe the continuous actions of the police officer after the time that the officer left the scene of the traffic stop. Accordingly there is no factual foundation to Mr. Andrianov's assumption that Constable Childs was involved in the investigation of a traffic accident at the relevant time, such that he would not have had an opportunity to return to the scene of the traffic stop and the area to the south thereof, that same afternoon, to confirm the locations of the speed limit signs for the relevant portion of Tremaine Road.

[48] The only evidence before me pertaining to the existence of signage designating the relevant area of Tremaine Road as a 60 kilometres per hour speed limit zone, is the testimony of Constable Childs. The officer has provided direct evidence of the existence of such signage on Tremaine Road south of the area where Mr. Andrianov's motor vehicle was located at the time that the speed of his motor vehicle was measured by radar.

[49] The officer's testimony in this regard is internally and externally consistent and detailed. I am therefore of the view that his testimony as to the location of the speed limit signs is both credible and reliable. Furthermore, following the reasoning set forth in Regina v. Garbarino, supra, I am able to rely on the presumption of regularity in order to conclude that the signage had, at the material time, been erected in accordance with the technical requirements of Ontario Regulation 615 under the H.T.A.

[50] Accordingly, based upon the testimony of Constable Childs and noting the absence of any evidence to the contrary, I find that the prosecution has proven beyond a reasonable doubt, that at the time that Constable Childs obtained the subject speed reading, the defendant was driving the subject motor vehicle on Tremaine Road, within the boundaries of a posted 60 kilometres per hour speed limit zone.

Issue #2 – Whether, at the material time, the defendant was driving the subject Kia motor vehicle on Tremaine Road, at a rate of speed greater than 60 kilometres per hour?

[51] In order to sustain a conviction against the defendant in respect of the subject charge, the prosecution must prove, beyond a reasonable doubt, that at the material time the defendant was driving a motor vehicle on Tremaine Road at a rate of speed greater than the posted speed limit of 60 kilometres per hour, in particular that of 82 kilometres per hour. In my view, based upon the uncontradicted evidence of Police Constable Childs in this proceeding and noting the absence of any admissible evidence which raises a reasonable doubt as to the prima facie accuracy and reliability of the radar speed measurement in this proceeding, I find that the prosecution has established a prima facie case that at the material time, the defendant was driving the subject motor vehicle on Tremaine Road at a rate of speed of 82 kilometres per hour.

[52] During his testimony, Constable Childs proffered credible evidence as to the fact that on January 24th, 2014, he was trained and qualified in the operation of the subject Genesis II Select radar speed measuring device. He advised that prior to using the device to obtain the measurement of the rate of speed of the subject motor vehicle at approximately 3:01 p.m., he conducted an internal test and a road test of the subject device, in accordance with manufacturer's instructions. Based upon these tests, he determined that the radar device was in "proper working order". The officer testified that following the use of the device at the said time, he re-tested it and once again found it to be in proper working order.

[53] The undisputed evidence before me establishes that at the material time, the subject radar speed measuring device was being operated by a person who was trained and qualified in the operation of the device and who had determined the device to be in proper working order by testing the device, both before and after its use. Accordingly, based upon the authority of the Quebec Court of Appeal, in D'Astous v. Baie Comeau, supra, I am able to take judicial notice of the accuracy and reliability of the speed reading obtained in this matter. The radar speed measurement constitutes prima facie evidence of the fact that at the material time, the defendant was driving the subject Kia motor vehicle on Tremaine Road, in the Town of Milton, at a rate of speed of 82 kilometres per hour, subject to any evidence to the contrary.

[54] During the course of this proceeding, Constable Childs was extensively cross-examined by the defendant relative to issues pertaining to the operation of the subject radar device. In my view, the evidence proffered by the officer in cross-examination fails to raise a reasonable doubt as to the fact that at the material time, the device was in good working order and was being operated properly. Furthermore, there is no independent evidence before me which raises a reasonable doubt as to the accuracy of the speed reading obtained by the device.

[55] During the course of his testimony-in-chief and his final submissions in this proceeding, the defendant argued that the speed reading of his vehicle, obtained by the subject radar device was inaccurate. He theorized that the adverse winter conditions, in particular the patches of snow blowing in the direction of his vehicle, distorted the accuracy of the speed reading obtained by the subject radar device.

[56] The defendant has failed to establish a factual foundation for his argument that the reliability of the speed measurement obtained was diminished by the fact that it was obtained at a time when large patches of snow were blowing in the direction of his motor vehicle. In this regard, it is noted that the defendant failed to adduce any independent expert evidence to support his theory that such weather conditions could significantly affect the accuracy of a speed reading obtained through the proper operation of the subject Genesis II Select radar device, in working order. Furthermore, the defendant failed to establish any validity to his theory through cross-examination of Constable Childs.

[57] The defendant's theory that the accuracy of the speed reading obtained by the subject radar device in this case was significantly diminished by the fact that it was obtained at a time when large patches of snow were blowing in the direction of his motor vehicle, is entirely speculative. Accordingly, I am unable to attach any weight to this theory.

[58] In summary, the fact that at the material time Constable Childs was trained and qualified in the operation of the subject Genesis II Select radar speed measuring device and that he conducted tests to verify its accuracy, both before and after its use of January 24th, 2014, permits me to take judicial notice of the accuracy and reliability of the speed reading obtained by it in this case. It is prima facie evidence that at the material time, the defendant was driving the subject motor vehicle at a rate of speed of 82 kilometres per hour. There is no evidence before me to the contrary.

[59] The defendant has failed to raise a reasonable doubt as to the reliability of the speed reading obtained by the radar device, either through the cross-examination of the police officer or through independent evidence. As stated by Schnall J. in Regina v. Niewiadomski, supra, "a prima facie case can support a conviction unless the defence raises a reasonable doubt through independent evidence or through cross-examination of the Crown witness". Accordingly, it has been established beyond a reasonable doubt, that at the material time the defendant was driving the subject motor vehicle at a rate of speed of 82 kilometres per hour.

The Decision

[60] The totality of the evidence received by me in this proceeding has established the following elements of the subject offence of speeding, beyond a reasonable doubt:

that on the 24th day of January, 2014, at approximately 3:01 p.m., Sergey Andrianov was driving a motor vehicle in a northerly direction on a highway, to wit: Tremaine Road, north of Lower Base Line, in the Town of Milton;
that the portion of Tremaine Road over which Sergey Andrianov was driving the motor vehicle at the said time, was a posted 60 kilometres per hour speed limit zone; and
that at the said time, Sergey Andrianov was driving the motor vehicle at a rate of speed greater than 60 kilometres per hour; that being a rate of speed of 82 kilometres per hour.

[61] I therefore find Sergey Andrianov guilty of the offence of speeding – 82 kilometres per hour in a posted 60 kilometres per hour zone, contrary to section 128 of the H.T.A., as charged.

Released: March 4, 2015

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

Regina v. Andrianov, 2015 ONCJ 197

Case Summary