Ontario Court of Justice

Date: 2016-02-12

Court File No.: City of Windsor 14-20823

Between:

HER MAJESTY THE QUEEN

— AND —

JIMIS JAY ODISH

Before: Justice of the Peace H. DeBacker

Heard on: January 6, 2016

Reasons for Judgment released on: February 12, 2016

Counsel

Mr. A. Sauve — Counsel for the Prosecution

Mr. A. Debly — Counsel for the Defendant Jimis Jay Odish

JUSTICE OF THE PEACE DEBACKER:

[1] Jimis Jay Odish is charged on or about the 19th day of October, 2014 at the City of Windsor in the Southwest Region did commit the offence of drive a motor vehicle on EC Row Expressway eastbound while performing a stunt, to wit: driving at a rate of speed that is 50 kilometres per hour or more over the speed limit, Contrary to Section 172(1) of the Highway Traffic Act.

[2] It was not in dispute that Jimis Jay Odish was operating a motor vehicle eastbound on EC Row Expressway in the City of Windsor and that he was stopped for speeding or stunt driving by Constable Ferrari on the 19th day of October, 2014.

[3] The issue of the trial was whether Mr. Odish was speeding 50 kilometres over the speed limit, which would make out or prove the charge of stunt driving.

[4] Although the Court was satisfied it was proven Mr. Odish drove 40 kilometres over the speed limit, this court was not satisfied beyond a reasonable doubt that Mr. Odish drove 50 kilometres over the speed limit. Therefore, the finding of this court will be: not guilty, for the following reasons.

Factual Background

[5] Constable Ferrari was stationary on the south side of EC Row Expressway facing eastbound, just east of Conservation Drive overpass. EC Row Expressway is a posted 100 kilometre zone. Constable Ferrari gave evidence he viewed a black Ford Explorer motor vehicle as it crested the overpass at Conservation Drive travelling markedly faster than 100 kilometres. He activated his rear antenna and received a reading of 150 kilometres per hour, immediately then the speed reading was 140 kilometres per hour. The constable stopped the vehicle within one (1) kilometre and Jimis Odish was identified as the driver through a valid Ontario Driver's Licence.

[6] The incident occurred at 9:20 p.m. in the evening. It was dark outside. There were artificial street lamps illuminating the area. Constable Ferrari made this observation by looking through his driver's side mirror the entire time at headlights, in the dark, as the vehicle approached. Observation of the vehicle was not made until it crested the overpass and hence duration of the officer's total observation and radar reading of the speed was for only two (2) to three (3) seconds while the vehicle travelled a distance of approximately 200 metres.

Analysis of Radar Evidence

[7] Officer Ferrari never lost sight of the vehicle and did say it was the only vehicle in the beam. He further indicated he did not lock in the speed and he was not required to lock in the speed. There was no plausible explanation regarding the reading the officer viewed being firstly 150 kilometres then being 140 kilometres other than a presumption by the officer that the driver must have noticed the police and slowed.

[8] This Court finds there exists a reasonable doubt. It is possible the reading the officer received of 150 kilometres could have really been 140 kilometres the entire time. The number five (5) could have been the number four (4), it is possible. Firstly, the reading was never locked-in at 150. It may not be a requirement that a reading be locked-in however, when a reading is locked-in, it bolsters the strength of the observation viewed by the officer. Secondly, there was a high-pitched consistent tone that never deviated. One could reason, if the reading deviated slightly, the pitch and tone should have deviated slightly.

[9] Thirdly, when an officer tracks a vehicle first with his or her own eyes and makes a determination, based on experience, that a vehicle is travelling well over the speed limit, then the radar is activated and the radar reading corroborates the officer's own observation, it bolsters the strength of the radar reading observation. This third element in no way occurred whatsoever. It was only when the vehicle crested a hill that the officer could observe it and then that observation occurred for only two (2) to three (3) seconds and through the officer's side-view mirror, at night, in the dark. It was an observation of headlights.

[10] Fourth, the speed reading deviated from 150 kilometres to 140 kilometres within the two (2) to three (3) second window of observation. Evidence heard lead the Court to find 150 kilometre radar observation, said to have occurred, was for a shorter time than the 140 kilometre observation. Therefore, the 150 kilometre radar reading, if it had occurred, would have lasted for only up to a portion of one (1) second or a split second. For this reason, I am left in doubt over the 150 kilometre radar reading.

[11] Fifth, there was no steady decline of the speed observed, as sometimes heard in similar circumstances, such as: the speed went from 150 to 147, 142 then 140. There was just a jump from 150 to 140, which in my view, increases the likelihood of an error in the reading.

[12] Sixth, Constable Ferrari testified the width of the radar beam was 20 metres wide at 200 metres distance, where the 150 reading was said to have occurred. Although he did say the Odish vehicle was the only vehicle in the beam, we also heard there were other vehicles approaching as well. This opens the possibility that the 150 reading, if it had occurred, could have been captured from a faster vehicle which was also approaching in this multi-lane highway. There were several vehicles all approaching near the same time.

[13] Lastly, the officer did not confirm nor deny a reasonable margin for error, leeway or variance that could occur with radar readings. Defence suggested it possible a speed could vary from a reading by plus three (3) or minus three (3) kilometres. Constable Ferrari's answer was that he was not aware of this. Although I strongly disagree with defence suggestion of a plus three (3) or minus three (3) variance, because it was not substantiated, there was no basis for where this number three came from; this point did cast some doubt. Even a one (1) kilometre variance, if such a variance exists, which was neither confirmed nor denied, would be fatal to the prosecution's case.

Conclusion

[14] In conclusion, the Court was left with a non-locked-in reading from a vehicle's headlights, viewed through a side-view mirror, in the dark, for only a split second duration. Although I am convinced Mr. Odish was travelling 140 kilometres in a 100 kilometres zone and there certainly were ample grounds for the officer to stop Mr. Odish for speeding, I am not convinced beyond a reasonable doubt that Mr. Odish travelled 150 kilometres. The charge of stunt driving requires a speed of at least 50 kilometres over the speed limit essential. Therefore, this Court finds the defendant not guilty to the charge of stunt driving.

[15] Finally, to address a point argued, the model of the Genesis II Decator radar and one of the radar tests were not in the officer's notes. These factors, the court finds, did not affect the officer's credibility as argued by defence. Rather, the Court found Officer Ferrari to be honest, credible and reliable. The court finds he did perform all the required manufacturer recommended tests. Simply put, the Court was not convinced beyond a reasonable doubt.

Released: February 12, 2016

Signed: "Justice of the Peace H. DeBacker"