Court Information

Ontario Court of Justice

Date: November 4, 2016

Court File No.: Halton/Burlington - Certificate of Offence no. 1260-3590581B

Provincial Offences Court – Burlington, Ontario

Parties

Between:

Her Majesty the Queen

— AND —

Adam McIntosh

Before the Court

Justice of the Peace: Kenneth W. Dechert

Heard on: May 25, 2016

Reasons for Judgment released on: November 4, 2016

Representation

For the Prosecution: J. Stewart

For the Defendant: Adam McIntosh (Self-represented)

Statutes, Regulations and Rules Cited

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, ss. 1(1), paragraphs 128(1)(d) and 128(7)(b).

Cases Cited

• City of Joliette v. Delangis, [1999] J.Q. No. 4936 (Que. C.A.)
• Regina v. Arcuri, 2001 SCC 54
• Regina v. Charemski
• Regina v. Fontaine, 2004 SCC 27
• Regina v. Le, [2002] O.J. No. 894 (Ont. C.J.)
• Regina v. Mukasa, [2001] O.J. No. 262 (Ont. C.J.)
• Regina v. Odusanya, [2002] O.J. No. 3209 (Ont. C.J.)
• Regina v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.)
• Regina v. Williams, 2008 CarswellOnt 1504 (Ont. C.J.)

Publications Cited

Paciocco, Mr. Justice David M. and Stuesser, Professor Lee, The Law of Evidence, Seventh Edition (Irwin Law Inc., 2015).

Judgment on Motion for Non-Suit

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

INTRODUCTION

[1] Under certificate of offence no. 1260-3590587B the defendant, Adam McIntosh, stands charged that he, on the 12th day of October, 2014 at Highway 407, eastbound, east of Bronte Road, in the Town of Oakville, "did commit the offence of speeding 139 km/h in a posted 100 km/h zone", contrary to the Highway Traffic Act, section 128.

[2] The defendant entered a plea of not guilty to the said charge on May 25, 2016, and the trial of the charge then ensued before me. At that time, the prosecution was represented by Ms. J. Stewart. The defendant represented himself.

[3] During the course of the trial of May 25, 2016, I received sworn testimony tendered on behalf of the prosecution, from Police Constable Allen Widish, a member of the Ontario Provincial Police. Following the completion of the said testimony, the prosecution closed its case in this proceeding. At that time, the defendant moved for a non-suit, submitting that the prosecution had failed to discharge its evidential burden relative to the charge. He argued that I should, therefore, dismiss the subject charge.

[4] Following the presentation of argument on this motion, by both the defendant and the prosecutor, I reserved judgment and the proceeding was adjourned to November 4, 2016, for my judgment on the motion and possible trial continuation.

THE ISSUES

[5] The sole issue to be determined in this motion is whether or not prosecution has discharged the evidential burden relative to each essential element of the actus reus of the subject offence.

[6] In his decision written on behalf of the court in Regina v. Fontaine, 2004 SCC 27, Fish J. defined the concept of an "evidential burden" and that of a "persuasive burden", at paragraphs 11 and 12 therein, as follows:

An "evidential burden" is not a burden of proof. It determines whether an issue should be left to the trier of fact, while the "persuasive burden" determines how the issue should be determined.

These are fundamentally different questions. The first is a matter of law, the second, a question of fact. Accordingly, on a trial before a judge and jury, the judge decides whether the evidential burden has been met. In answering that question, the judge does not evaluate the quality, weight or reliability of the evidence. The judge simply decides whether there is evidence upon which a properly instructed jury could reasonably decide the issue.

[7] The test to determine whether a trial judge sitting without a jury, should dismiss a criminal or quasi-criminal charge on a motion for a non-suit, is similar to the test to determine whether a trial judge sitting with a jury, should direct a verdict of acquittal on a criminal charge. The test is tied to the concept of whether the prosecution has met its evidential burden, or, in other words, whether the prosecution has presented a prima facie case pertaining to each essential element of the charge.

[8] In their textbook titled The Law of Evidence, Seventh Edition (Irwin Law Inc., 2015), at page 589, Mr. Justice David M. Paciocco and Professor Lee Stuesser, stated that "[a]t the end of the Crown's case, accused persons are entitled, on application, to a directed verdict of acquittal, if the Crown has not presented a prima facie case"; citing the Supreme Court of Canada decision in Regina v. Charemski. The authors went on to note that in Regina v. Fontaine, supra, the Supreme Court of Canada found "that there is no prima facie case 'unless there is evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt'".

[9] In her decision, written on behalf of the Supreme Court of Canada in Regina v. Arcuri, 2001 SCC 54, McLachlin, C.J. opined that a prima facie case in a criminal proceeding could be established through direct or circumstantial evidence. She stated that if a trial judge determines that the Crown (or prosecution) presents direct evidence as to every element of the offence then the judge may conclude that a prima facie case has been established so as to defeat a defence motion for a non-suit or a directed verdict of acquittal. She indicated that in this scenario the trial judge may properly consider the evidence adduced to be true and accurate, as he/she is not tasked with the duty of assessing the credibility or reliability of the evidence.

[10] On the other hand, the Chief Justice concluded that a trial judge may determine that the Crown has met its evidential burden in a proceeding if the evidence adduced relative to any particular element of an offence is circumstantial. In this regard, she made the following comments at paragraph 23 of the said decision:

The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established. … The judge must therefore weigh the evidence in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[11] In this motion, the defendant argues that the prosecution has failed to establish a prima facie case pertaining to the element of the rate of speed of his motor vehicle at the material time. He submits that during the course of his testimony, Constable Widish failed to state how or when the rate of speed of the subject motor vehicle, allegedly measured by the subject laser speed measuring device, was registered. The defendant went on to submit that since the police officer failed to advise of a "beeping" sound at the time that the laser device was activated, in order to record the speed of the subject motor vehicle, that there was insufficient evidence proffered upon which a properly instructed jury could rationally conclude that the motor vehicle was, at the material time, travelling at a rate of speed in excess of the posted 100 kilometres per hour speed limit; in particular that of 139 kilometres per hour.

[12] The defendant therefore maintains that the prosecution has failed to adduce a prima facie case that the motor vehicle which he was allegedly driving at the material time, was travelling at the rate of speed alleged in the certificate of offence. He argues that the evidential burden respecting the element of the rate of speed of the vehicle has not been established by the prosecution evidence and that, therefore, his non-suit motion should be granted.

[13] On the other hand, the prosecutor submits that all of the essential elements of the actus reus of the subject offence have been established, on a prima facie basis, through the direct evidence of Constable Widish. She submits that at this stage of the proceeding I may treat the police officer's evidence as being true and accurate, as I must not, in the course of adjudicating a motion for a non-suit or a directed verdict of acquittal, engage in an exercise of weighing the evidence or considering its credibility.

[14] In respect of the specific issue raised by the defendant; that the prosecution had failed to adduce sufficient evidence upon which a properly instructed jury could rationally conclude beyond a reasonable doubt that the subject motor vehicle was travelling at a rate of speed of 139 kilometres per hour, the prosecutor argues that the evidence of Constable Widish is that he obtained that rate of speed through the proper operation and activation of the subject laser device, once he activated that device. The prosecutor therefore submits that the officer has presented direct evidence as to the rate of speed of the motor vehicle and that the evidential burden in respect of the issue of the actual speed of the defendant's motor vehicle at the relevant time has been met.

[15] The prosecutor submits that the officer's evidence establishes that the subject rate of speed was captured by a "Lidar" - laser speed measuring device, which was capable of measuring and calculating the speed of moving motor vehicles. This device was determined to be in proper working order at the time of its use and was operated by a qualified "Lidar" operator. She argues that this evidence establishes a prima facie case that the speed of the subject motor vehicle obtained by the laser device at the time that it was activated was accurate and could, therefore, support a finding that the subject motor vehicle was, at the relevant time, travelling at a rate of speed of 139 kilometres per hour, beyond a reasonable doubt.

[16] The prosecutor further submits that to look behind and question the truth of the officer's unequivocal statement that he obtained the said speed reading at the material time, would require the Court to engage in an impermissible exercise of weighing the officer's evidence and assessing its credibility at this stage of the trial proceeding. In conclusion, she maintains that the prosecution has presented, through the evidence of Constable Widish, prima facie evidence of all of the essential elements of the actus reus upon which a properly instructed jury could rationally conclude that the accused is guilty of the subject offence, beyond a reasonable doubt. She therefore contends that the defendant's motion for a non-suit should be dismissed.

RELEVANT STATUTORY PROVISIONS

[17] The defendant is charged with the offence of speeding – 139 kilometres per hour in a posted 100 kilometre per hour zone, 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." The following portions of section 128 are relevant to this proceeding:

s. 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);

s. 128(7) The Minister may make regulations prescribing a rate of speed for,

(b) any class of motor vehicles driven on the King's Highway or portion of the King's Highway whether or not the King's Highway is within a municipality, and the rate of speed may be different for any period or periods of the day or night or direction of travel; …

[18] The following portions of subsection 1(1) of the H.T.A. are relevant to this proceeding:

In this Act,

'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 vehicles running only on rails, a power assisted bicycle, motorized snow vehicle, a traction engine, a farm tractor, a self-propelled instrument of husbandry or a road-building machine;

ANALYSIS

Issue: Whether or not the prosecution has presented some evidence of each essential element of the actus reus of the subject offence upon which a properly instructed jury could rationally conclude that the defendant is guilty beyond a reasonable doubt?

[19] In his decision in the Provincial Offences Act appellate case of Regina v. Williams, 2008 CarswellOnt 1504, Pockele J. stated that "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". At the time that the defendant moved for a non-suit ruling, the only evidence that I had received in this proceeding was the testimony of Police Constable Allen Widish, proffered on behalf of the prosecution. I will now review the evidence of Constable Widish in order to determine whether the prosecution has established a prima facie case relative to each essential element of the offence of speeding, as defined in the case of Regina v. Williams, supra.

(i) The date of the offence

[20] In this proceeding it is alleged that the subject offence took place on October 12, 2014 at 5:32 p.m.

[21] During the course of his testimony, Constable Widish stated that on October 12, 2014, at 5:32 p.m., he was conducting speed enforcement duties on Highway 407 eastbound at Neyagawa Boulevard, in the Town of Oakville. He stated that at that time he measured the speed of a black-coloured Ford Focus motor vehicle, which was travelling in an easterly direction on Highway 407, by operating a "Lidar" - laser speed measuring device.

[22] Constable Widish testified that after measuring the speed of the said vehicle, he followed it, stopped it and determined that the defendant was the driver of the vehicle. I am therefore satisfied that the prosecution has adduced sufficient evidence to establish, on a prima facie basis that the subject offence took place on October 12, 2014 at 5:32 p.m.

(ii) The place of the offence

[23] In this proceeding, it is alleged that the subject offence took place at "Highway 407 eastbound, east of Bronte Road, in the Town of Oakville".

[24] During the course of his testimony, Constable Widish stated that on October 12, 2014, at 5:32 p.m., he was monitoring eastbound traffic on Highway 407, from his stationary position in his marked police cruiser, located on the right shoulder of the said highway, near Neyagawa Boulevard, in the Town of Oakville. He stated that from this position he had a clear view of motor vehicles as they approached his location from a distance of approximately 1.5 to 2 kilometres west of his location.

[25] The officer testified that at the said time, he observed the said black-coloured Ford Focus motor vehicle, later determined to be driven by the defendant, travelling in an easterly direction in the left lane of Highway 407 eastbound, at a location west of Neyagawa Boulevard. He advised that the vehicle appeared to be travelling at a rate of speed greater than the posted speed limit for the highway of 100 kilometres per hour. He stated that he then took steps to measure the speed of the vehicle by utilizing his "Lidar" instrument, determining that it was moving at a rate of speed of 139 kilometres per hour.

[26] Constable Widish testified that Highway 407 at the location where the said speed measurement was obtained, was a "highway" comprised of three lanes running eastbound and three lanes running westbound on an asphalt surface. He described the relevant portion of the highway as a "straight section of roadway with no curves". Based upon the officer's description of the location of the offence, I am able to take judicial notice that the offence took place on a "highway" as defined by the H.T.A.

[27] I am therefore satisfied that the prosecution evidence in this proceeding has established, on a prima facie basis, the element of the place of the alleged offence. There is sufficient evidence before me upon which a properly instructed jury could rationally conclude that the offence took place on a "highway", to wit: Highway 407 eastbound, in the Town of Oakville, beyond a reasonable doubt.

(iii) The posted speed limit

[28] During the course of his testimony in chief, Constable Widish stated that at the time that he measured the speed of the defendant's motor vehicle by means of the subject "Lidar" device, it was travelling within a 100 kilometres per hour speed zone. In this regard, Constable Widish testified that on the date in question, there were "clearly posted 100 kilometres per hour maximum speed limit signs" located at "regular intervals along the entire length of Highway 407".

[29] Based on the officer's said testimony, I am satisfied that there is sufficient evidence of the element of the speed limit governing the relevant portion of Highway 407, upon which a properly instructed jury could rationally conclude, beyond a reasonable doubt, that at the material time the subject motor vehicle was travelling within a posted 100 kilometres per hour speed zone. This element has therefore been established on a prima facie basis.

(iv) The identification of the vehicle operator

[30] During the course of his testimony in chief, Constable Widish stated that when he first observed the black Ford Focus motor vehicle travelling in an easterly direction in the left lane of Highway 407, west of his location, he estimated that it was travelling at a rate of speed in excess of the 100 kilometres per hour speed limit. He advised that upon making this observation, he activated his "Lidar" speed measuring unit "at the front area of this motor vehicle" and obtained a speed reading of 139 kilometres per hour. He noted that as the vehicle approached his location it began to reduce its speed such that the officer obtained a "final speed reading" of 127 kilometres per hour at a distance of 226.7 metres west of his position.

[31] Constable Widish testified that after he obtained the speed readings of the motor vehicle, he did not lose sight of it. He stated that he followed the vehicle and stopped it a short distance east of where he was situated in order to conduct his speed enforcement assignment. The officer testified that upon stopping the subject motor vehicle, which he specifically described as a motor vehicle as defined by the H.T.A., he proceeded to determine the identity of its driver.

[32] The constable testified that the driver identified himself by means of a valid Ontario class "G", photo driver's licence as Adam McIntosh with a date of birth of April 2, 1989 and an address in Rockwood, Ontario. He went on to state that in determining the identity of the driver, he took steps to compare the digital photograph on the driver's licence produced with the person operating the motor vehicle and that he was satisfied that the driver was the person named as Adam McIntosh, as stated and depicted on the driver's licence.

[33] Constable Widish advised that the person before the court at the time of the trial, who identified himself as the defendant, Adam McIntosh, was the same person that he observed to be the driver of the black-coloured Ford Focus motor vehicle which he stopped on Highway 407 eastbound, at the material time.

[34] The aforesaid testimony establishes the essential element of the identity of the defendant, Adam McIntosh, as the driver of the allegedly speeding motor vehicle, on a prima facie basis. Accordingly, there is sufficient evidence before me upon which a properly instructed jury could rationally conclude, beyond a reasonable doubt, that the defendant was the driver of the subject motor vehicle, being a "motor vehicle" as defined by the H.T.A.

(v) The rate of speed of the motor vehicle

[35] In the subject proceeding the speed of the defendant's motor vehicle at the material time was measured by a device which Constable Widish described as "speed laser DragonEye Lidar instrument". He stated that "Lidar" was an acronym which stood for "light detection and ranging". Furthermore, he stated that "Lidar" was a "device used to measure and calculate speed of moving motor vehicles".

[36] In order to properly analyze the element of the speed of the subject motor vehicle in the context of the defendant's non-suit motion, it is important to review the leading jurisprudence pertaining to the issues of the admissibility and reliability of speed measurements obtained by means of laser technology.

[37] The leading case with respect to the issue of the reliability of speed measurement evidence derived from a laser device, is the decision of the Ontario Court of Appeal in Regina v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.). In paragraphs 21 and 22 of her decision therein, Feldman J.A. made the following comments relative to the evidence required to establish the accuracy and reliability of laser speed measurements:

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 it was operating properly on the date in question. The Court also received evidence of the accuracy of the device for measuring the speed of vehicles on a highway by comparing its readings with those of an accurate radar unit. The radar test provides the independent guarantee of accuracy of the laser unit to measure the speed of a moving vehicle.

[38] In his decision in Regina v. Le, [2002] O.J. No. 894 (Ont. C.J.), Fairgrieve J. determined that the decision of the Ontario Court of Appeal in Regina v. Vancrey, supra, did not require the prosecution to lead evidence that readings from the particular laser device had been recently compared with those of an accurate radar device before a court could be satisfied that the speed readings were reliable. In paragraph 14 of his decision, the said jurist made the following comments:

In my opinion, regardless of whether the reliability of laser devices to measure the speed of motor vehicles is regarded as so 'notorious' that it cannot be disputed by reasonable people, or whether one accepts the judgments in Delangis and Mukasa as demonstrating prior judicial acceptance of the device's reliability, it is now appropriate for other courts to take judicial notice of that fact. Laser devices have been used for this purpose by law enforcement agencies for almost a decade, the evidence obtained through their use has been routinely admitted as reliable, and at least one provincial appellate court has held that their reliability is so well-known that it requires no evidence to establish it.

[39] In her decision in Regina v. Odusanya, [2002] O.J. No. 3209 (Ont. C.J.), Lane J. adopted Mr. Justice Fairgrieve's reasoning in Regina v. Le, supra, in finding that one could take judicial notice of the accuracy of laser speed measuring devices without any independent comparison testing. In commenting on the reliability of evidence of the rate of speed of a motor vehicle derived from a laser speed measuring device, Madam Justice Lane stated as follows:

…that where there is no evidence raising any doubt or suggesting that the device was not operating properly according to manufacturer's specifications or had not been tested on the day in question, then its results ought to be accepted.[1]

[40] During the course of his testimony in this proceeding, Police Constable Widish stated that on October 12, 2014, he was employed by the Ontario Provincial Police. He advised that on that date he was assigned to conduct "uniform patrol" duties, including speed enforcement, on Highway 407, by means of a marked police cruiser.

[41] He testified that on that date, he was using a laser "DragonEye Lidar" instrument for purposes of undertaking his speed enforcement duties. He stated that he was trained and qualified in the operation of this particular "Lidar" device. He went on to state that he takes training every two years to "refresh his initial qualification on [this] instrument" and that he was last re-qualified in the operation of the "Lidar" device prior to the date of the alleged offence, in the spring or summer of 2014.

[42] Constable Widish testified that on October 12, 2014, at 4:22 p.m., he tested the particular "Lidar" unit, according to manufacturer's specifications and, based on those tests, found it to be in "proper working order". He stated that he re-tested the unit at 3:19 a.m. on October 13, 2014, after having used the instrument over the course of his twelve-hour shift. He went on to advise that this test was conducted in accordance with manufacturer's instructions and that based on the results of those tests, he was satisfied that the Lidar instrument continued to be in "proper working order".

[43] Constable Widish testified that on October 12, 2014, at approximately 5:32 p.m., he was situated in his stationary police vehicle on the right shoulder of Highway 407 at Neyagawa Boulevard. He advised that he was conducting speed enforcement duties at that location, utilizing the said "Lidar" – laser speed measuring device, which he had tested for proper working order according to manufacturer's specifications, approximately one-hour earlier.

[44] Constable Widish testified that at or about the said time, his attention was drawn to a black-coloured, four-door Ford Focus motor vehicle, travelling in an easterly direction in the left lane of Highway 407, west of his location. He estimated that this motor vehicle was travelling at a rate of speed in excess of the posted 100 kilometres per hour maximum speed limit.

[45] The constable stated that at this time he activated his "Lidar" device, by aiming and placing the red dot appearing in the viewing scope of the device, directly on the front end of the subject motor vehicle. He advised that in doing so, he obtained a rate of speed reading of 139 kilometres per hour, which was locked into the said device. He advised that as the subject motor vehicle continued to travel in an easterly direction towards his location, he re-activated the "Lidar" device on the motor vehicle, and obtained a second, locked-in speed measurement for the vehicle of 127 kilometres per hour, at a distance of 226.7 metres.

[46] Constable Widish testified that at the relevant time the weather was clear and sunny, the roads were dry, and the traffic was "light to moderate". He went on to testify that at the time that he obtained the said speed measurements the subject motor vehicle was travelling in the left lane of the eastbound highway, and that there were no other vehicles in the path of the beam of his "Lidar" instrument, which he aimed at the subject vehicle. He stated that at the times that he activated the laser device and placed the laser beam on the front of the targeted vehicle, there was a break in traffic which allowed him to see the vehicle and "obtain a speed reading unobstructed".

[47] In specifically describing the steps that he took in operating the subject "Lidar" device by aiming the laser beam on the subject vehicle, Constable Widish stated as follows:

The Lidar device I was using has a viewing scope on the top of it similar to the scope of a rifle. In that viewing scope there is a red dot which I placed directly on the front end of Mr. McIntosh's vehicle. Part of the test that I conducted at the beginning of my shift is to make sure that that dot and the laser beam put out by the device are lined up. That, in other words, what I'm pointing the dot at is where the laser is going. Based on those tests I was satisfied that that was in fact the case and seeing the dot on the front of the vehicle and obtaining the speed reading that's in agreement with my visual estimation of speed, I was satisfied.

[48] During cross-examination, Constable Widish described the process he employed in obtaining the measurement of the speed of the motor vehicle being driven by the defendant at the material time, as follows:

So what I do is I aim the device at the front end of your vehicle and there will be intermittent beeping until it locks in and gets a proper series of measurements, in which time a steady tone will sound as long as I have the device on your vehicle, and that tone was continuous while I was obtaining your speed readings.

[49] Based upon the direct evidence proffered by Officer Widish, in both examination-in-chief and in cross-examination in this proceeding, I am satisfied that the prosecution has met its evidential burden pertaining to the essential element of the rate of speed of the motor vehicle being driven by the defendant, at the relevant time.

[50] The officer determined the rate of speed of the said motor vehicle at the material time to be 139 kilometres per hour, by utilizing a laser speed measuring device. At this stage of the proceeding, I am able to take judicial notice of the prima facie reliability of the said speed reading obtained through the use of a laser device, as the evidence before me establishes that at the material time, the subject "Lidar" device was both in good working order and being operated properly, as determined by a police officer who was trained and qualified in its use for purposes of vehicular speed enforcement.

[51] Constable Widish was a trained and qualified "Lidar" operator at the time of the alleged offence, and his testimony confirms that he confidently operated his laser unit to obtain the locked-in rate of speed of the subject motor vehicle, at the relevant time, of 139 kilometres per hour. Furthermore Constable Widish stated that he tested the subject device both before and after the time of its use to record the speed of the motor vehicle being driven by the defendant, in accordance with manufacturer's specifications. Accordingly, following the conclusions reached by the Ontario Court of Appeal in the case of Regina v. Vancrey, supra, and by Fairgrieve J. in the case of Regina v. Le, supra, I am able to conclude that that the speed reading obtained of the defendant's motor vehicle may be considered both accurate and reliable.

[52] I am satisfied that at this stage of the trial of the subject charge, the prosecution has adduced sufficient evidence of the element of the actus reus pertaining to the rate of speed of the subject vehicle to establish, on a prima facie basis that, at the relevant time, it was being driven by the defendant at a rate of speed of 139 kilometres per hour as alleged. I have reached this conclusion based on the totality of the direct evidence presented by the prosecution prior to closing its case, without weighing the evidence in terms of its strength or quality or engaging in an assessment of its credibility.

[53] In my view there is ample evidence in the record of this proceeding, at the close of the prosecution's case, upon which a properly instructed jury could rationally conclude that the said motor vehicle was at the material time, travelling on Highway 407 at a rate of speed of 139 kilometres per hour, beyond a reasonable doubt.

THE DECISION

[54] For the reasons stated, I find, as a matter of law, that the prosecution has met its evidential burden in this proceeding by adducing sufficient, direct evidence of each essential element of the actus reus of the subject charge upon which a properly instructed jury could rationally conclude that the defendant is guilty, beyond a reasonable doubt.

[55] The prosecution has, at the close of its case, met its evidential burden. Accordingly, I am now permitted to weigh and analyze the credibility of the totality of the evidence received during the course of this trial, including any evidence which may yet be tendered by the defendant, in order to determine, as a question of fact, whether or not the prosecution has met its persuasive burden of proving the essential elements of the subject absolute liability offence, to the standard of proof beyond a reasonable doubt.

[56] The defendant's motion for a non-suit is, therefore, dismissed. The trial of the subject charge will therefore continue and the defendant may now elect as to whether or not he wishes to call any evidence on his own behalf, prior to the completion of the evidentiary phase of this proceeding.

Released: November 4, 2016

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

Footnote

[1] Regina v. Odusanya, [2002] O.J. No. 3209 (Ont. C.J.), para. 53.