Court File and Parties

Ontario Court of Justice

Date: 2017-04-04

Court File No.: Chatham-Kent 1660-999-13-000368

In the Matter of an appeal under clause 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen Appellant

— And —

Abdirahman Dore Respondent

Before: Justice Paul J.S. Kowalyshyn

Heard on: January 6, 2017

Reasons for Judgment released on: April 4, 2017

Counsel:

• Alfred Creed, for the Appellant
• Anthony G. Debly, for the Respondent

On appeal from: An acquittal by Justice of the Peace Miskokomon on January 16, 2016

Reasons for Judgment

Kowalyshyn J.:

Introduction

[1] These are my reasons for judgment on the appeal brought by the Crown against the acquittal on a charge of stunt driving contrary to s. 172(1) of the Highway Traffic Act.

[2] At the outset of the appeal, both Crown and Defence agreed that the learned Justice of the Peace had made an error in law in holding that an essential element of the offence was that an officer must "lock in" the speed reading when they operate a radar device.

[3] The Crown takes the position that with this element effectively removed from the decision that the offence of stunt driving was made out at trial as evidenced by the other findings made by Her Worship. A conviction should therefore be entered.

[4] The Defence submits that even with conceding this ground of appeal, the basis for an acquittal on reasonable doubt still exists. The Crown appeal should therefore be dismissed.

Evidence and Procedural Background

[5] The evidence in this appeal included the transcripts from the initial decision of Her Worship Miskokomon. I have therefore had an opportunity to review the transcripts (including submissions made by counsel at trial), in addition to the Reasons for Judgment. I have considered the oral submissions of counsel and the factums and case law provided by them. I have also considered other case authority which I found to be relevant and of assistance.

[6] By way of background, Mr. Dore was operating his motor vehicle late in the evening on August 17, 2013 on Highway 401 in Chatham-Kent. Constable Bourdeau of the O.P.P. was operating a Genesis II Directional radar unit and obtained a speed of 171 km/hour in a posted 100 km/hour zone. Mr. Dore was stopped and ticketed. He was provided with a Part III summons and given a court date.

[7] Mr. Dore was acquitted at trial on the basis that there was no evidence that Constable Bourdeau had "locked in" the speed of his vehicle. Justice Miskokomon, in error, believed this to be an essential element of the offence of stunt driving. This was an error in law as there is no such requirement.

Trial Justice's Findings

[8] In providing her reasons, Justice Miskokomon identified three issues that she had to determine: was the officer qualified to operate the radar device; was the radar device in proper working order; and, was Mr. Dore driving his vehicle at 171 km/hour as alleged.

[9] Justice of the Peace Miskokomon found in the affirmative on all three points but as I have indicated, because there was no evidence that the officer had locked in the speed of the vehicle, she felt obliged to dismiss the charge against him.

[10] Her Worship provided detailed reasons in support of her findings which included reference to the evidence heard at trial. Defence counsel has challenged a number of these findings and relies on them in support of the request that the court not set aside the acquittal. I note that many of the submissions made by the Defence at this appeal were similarly made before Her Worship Miskokomon.

[11] I will review the submissions made by counsel and the issues raised in the factums.

Issue 1: Officer Qualification

[12] The first issue deals with whether or not Constable Bourdeau was properly qualified to operate the Genesis II Directional radar device. At page 4 of the transcript, Her Worship concluded that based on Constable Bourdeau's own testimony that he was qualified. She relied on his testimony in that regard.

[13] Whether a police officer is qualified to operate a particular device is a question of fact. It is open to a court to make that finding based on the evidence provided at trial with respect to the training and experience of the officer. See R. v. He, [2003] O.J. No. 2254 (OCJ), leave to appeal refused at [2003] O.J. No. 2257 (Ont.C.A.) with the court finding no error in the trial judge's conclusion.

[14] I agree with Justice Pockele who said this in R. v. Williams, [2008] O.J. No. 1078, "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."

[15] I am therefore unable to agree with the Defence submission that "an officer is only qualified when the maker of the equipment says you understand the equipment and process, and not some unbeknownst police officer from years ago." This position is not correct in law.

[16] At page 3 of her reasons, J.P. Miskokomon detailed the evidence she relied on in coming to her conclusion. Briefly she noted that the officer had been qualified as a radar operator since 1975, has been re-qualified over his 41 years of experience, was re-qualified as recently as Feb. 12, 2012, and that he had been re-qualified every 3 years in accordance with O.P.P. policy.

[17] Her Worship had a factual basis upon which she could make the finding that Constable Bourdeau was properly qualified to operate the radar device and in my view she properly made that determination. There was no evidence for her to consider with respect to any challenge to the qualifications of Constable Bourdeau.

Issue 2: Radar Device in Proper Working Order

[18] The next issue which J.P. Miskokomon ruled on related to whether or not the radar device was in proper working order at the time of the traffic stop. She found that it was and detailed her reasons in support of that finding at pages 4-8 of the transcript.

[19] She said this at page 6, "Constable Bourdeau gave specific evidence to support his assertion that the radar device was in proper working order on the day and time of the traffic stop."

[20] J.P. Miskokomon said this at page 7 of the transcript: "Constable Bourdeau, has 41 years of experience and training on radar device. He is a qualified radar device operator who tested the device before and after the traffic stop according to the manufacturer's instructions, and found the radar device to be in proper working order. Constable Bourdeau testified both in-chief and in cross-examination as to the steps he takes each time the radar device is tested. The defence called no evidence on this issue and Constable Bourdeau's evidence was unshaken in cross-examination." (emphasis added).

[21] In this case, Her Worship Miskokomon noted at page 11 of the transcript and in reference to Constable Bourdeau, "He gave very detailed evidence as to the testing procedures he conducts to ensure the radar device is working properly."

[22] I agree with this simple statement made by Justice Casey in R. v. Khalatbari, [2004] O.J. No. 4167 at paragraph 6: "In my opinion, what is required is that the Justice be satisfied that the device was operating properly and could do what the officer testified." This was a case in which the court dismissed the appeal against a conviction for speeding. See also R. v. Gagetek, [2012] O.J. No. 4723 (OCJ).

[23] J.P. Miskokomon accepted Constable Bourdeau's evidence. There was no evidence offered at trial to contradict the evidence of Constable Bourdeau that the device was not in proper working order.

[24] The Ontario Court of Appeal said this in its brief endorsement in R. v. Bigioni, [1988] O.J. No. 2220: "The evidence of the Police Officer that he tested the radar unit both before and after, and it measured the respondent's speed accurately, and together with that he is a qualified operator is sufficient to evidence a prima facie case." This was an appeal on a charge of stunt driving.

[25] J.P. Miskokomon found as a fact (page 7-8) that Constable Bourdeau's testing procedures complied with the manufacturer's instructions. She said: "I now further accept Constable Bourdeau's evidence that his testing procedures comply with the manufacturer's instructions, and find that this radar device was in proper working order on the day of the stop."

[26] Her Worship Miskokomon noted at page 10 of the transcript that Constable Bourdeau did not agree with the Defence submission that he was not in compliance with the instruction manual. A review of his evidence bears this out.

Manufacturer's Instructions and Compliance

[27] The Defence submits that the radar device can only be found to be working properly when there is evidence that the officer followed all, and not just some, of the manufacturer's procedures and requirements.

[28] Defence counsel relies on the cases of R. v. Niewiadomski, [2004] O.J. No. 478 (OCJ) and R. v. Kologi, 2009 CarswellOnt 8479 (OCJ). They stand for the proposition that full compliance with the manufacturer's requirements for enforcement are an essential element of the offence. He submits that if an officer doesn't test or operate a radar device in full compliance with the manufacturer's instructions, then it cannot be said that the device was operated or working properly.

[29] I would point out that in R. v. Niewadomski, Justice Schnall had very different evidence before her. There, the police officer had no recollection of whether the radar device had completed internal tests and he had no notations related to whether the device was in proper working order that day. For those reasons, Justice Schnall was unable to take judicial notice of the reliability and the accuracy of the readings.

[30] In any event, Defence counsel has raised a number of concerns in this appeal with respect to what Constable Bourdeau did not do (paragraphs 8-33 of factum) which in turn give rise to his submission that an acquittal is still warranted on the basis of reasonable doubt. Similar arguments were made at trial.

[31] Briefly, the following alleged failures of the officer are cited: didn't keep detailed notes of his testing procedures on the radar unit (evidence was more detailed at trial than disclosed in his notes); didn't mention performing a tracking history; didn't state what he estimated the speed of the Dore vehicle to be and didn't confirm it; wasn't able to identify where the excerpt from a Genesis II manual that Defence counsel produced at trial specifically came from; didn't say if the radar was in "approach mode;" didn't state how far away the Dore vehicle was when it entered the radar beam; didn't state which antennae he had performed the test on (front or back); didn't state whether there were any other vehicles in the range of the radar beam; didn't provide proof that it was the Dore vehicle as compared to another vehicle (pick-up truck) that was speeding and entered the beam; didn't perform a display test, a circuitry test, a co-relation test, or a road test as per the manufacturer's instructions.

[32] The evidence shows that Constable Bourdeau did not agree with the alleged transgressions or "failures" on his part to do things that Defence counsel suggested he should have done when testing and using the radar device.

[33] In reviewing the record I do not see that J.P. Miskokomon made any finding that Constable Bourdeau failed to comply with the manufacturer's instructions in relation to testing or operating the radar device. She accepted the officer's evidence which again, was the only evidence received at trial.

[34] I find that it was entirely reasonable and appropriate for her to make this finding based on the evidence of Constable Bourdeau.

[35] I similarly do not see that J.P. Miskokomon was persuaded that any alleged breaches of the requirements of the instruction manual by Constable Bourdeau impacted the accuracy and the reliability of the readings of the radar device.

[36] Her Worship Miskokomon's careful analysis of the evidence indicates to me that she considered the arguments by the Defence and rejected them. There is no reason for me to interfere with her findings.

Two Lines of Authority

[37] Having said all of this, even if there was evidence that Constable Bourdeau had not tested or operated the radar device entirely according to the manufacturer's instructions, the R. v. Volfson, [2009] O.J. No. 1978 (OCJ), line of cases referred to by Her Worship, would indicate this is not necessarily fatal to the Crown's case.

[38] They stand as authority for the proposition that it must be demonstrated that the non-compliance with the manufacturer's instructions negatively affected the accuracy or reliability of the readings.

[39] I should point out that both lines of cases are decisions of the Ontario Court of Justice. Her Worship was therefore entitled to follow one or the other.

[40] In dismissing an appeal from a stunt driving conviction, Justice Brophy, in R. v. Lowry, [2015] O.J. No. 1248 (OCJ), referenced the Alberta Court of Appeal decision in R. v. So, 2014 ABCA 451. The Court of Appeal emphasized that manuals are instructive but not authoritative. To make them authoritative would effectively permit the drafters of the manuals to exercise "the power that our constitution bestowed exclusively on Parliament."

[41] A more complete discussion and comparison of the two different lines of authority can be found in the decision of Justice Bellefontaine in R. v. Xu, [2012] O.J. No. 2074 (OCJ). This was an appeal decision arising out of a speeding conviction.

[42] Beginning at paragraph 22:

22 In this regard I must respectfully disagree with Justice Hourigan in R. v. Kologi, [2009] O.J. No. 5742, that compliance with the manufacturer's requirements for enforcement are an essential element of the offence. In coming to this conclusion she relied in part on the decision of Justice Schnall in Niewiadomski, who held:

"It can be assumed that the absence of full compliance with the testing and operational process should make the reading suspect. There would be no reason for the device manufacturer to set out specifications and directions if it mattered not whether these were complied with."

23 I view such a holding to be speculative in the absence of evidence as to the role or function the operational processes perform. I consider departures from the manufacturer's process to bear on the weight of the evidence and not its admissibility. Departures may, not must, raise a reasonable doubt. Many requirements may have no effect whatever on the reliability of the machine but only represent evidentiary safeguards to bolster the weight of the evidence in court. So for example many cases have commented on a manufacturer's requirement that the officer visually observe the vehicle to be speeding before confirming his estimate with the device. This requirement will have no effect whatever on the functioning or reliability of the machine but serves solely to enhance the weight to be accorded to the result which is ultimately for the Justice to decide on the basis of all of the evidence. If the only purpose of such a requirement is to ensure the right vehicle is being targeted, the absence of any other moving vehicles or objects may make the absence of such a requirement immaterial in the context of all of the evidence at the trial. I consider it important to distinguish between requirements that directly impact the reliability of the device from requirements that solely confirm the reliability of the device. Departures from the latter may be less likely to raise a reasonable doubt than departures from the former. Indeed there may be as in R. v. Bland completely extraneous evidence of reliability that makes the results compelling despite a complete absence of the manufacturers confirmatory testing. To explain the point using the example of the old Borkenstien Breathalizer, a number of operational processes conducted by the operator directly affected the outcome of the test. Previous alcohol laden air had to be purged from the machine and the device recalibrated each use to adjust for the declining strength of its testing solution. A departure from these operating processes would directly impact on the accuracy of the result of the test and would easily raise a reasonable doubt. The operator was also required to test a blank room air sample which would have zero alcohol in it to ensure the machine registered zero and test a sample of known alcohol content to ensure that a comparable reading was obtained by the machine. These operational requirements do not directly affect the accuracy of the result on the machine but solely confirm that the machine is otherwise accurate. The absence of one of these tests could be seen as less likely to raise a reasonable doubt about the accuracy of the machine. The absence of specific manufacturer's process's in my view should be more nuanced and considered in the context of the extent to which they impact on the accuracy of the machine. It may be that some laser devices can be established in evidence to be so reliable over long periods of time and require so little operator input that the manufacturer's tests are redundant vestiges of an age unfamiliar with the unproven technology.

24 I consider the approach of Justice Klein in R. v. Volfson 2009 ONCJ 227 to be correct:

DID THE FINDING BY THE JUSTICE OF THE PEACE THAT PC SYDNEY FAILED TO OPERATE THE RADAR UNIT IN ACCORDANCE WITH MANUFACTURER'S INSTRUCTIONS AMOUNT TO A PALPABLE OR OVERRIDING ERROR?

16 It is clear from the brief reasons for decision that were orally delivered by the trial Justice of the Peace that she felt that the law required her to dismiss the charge because PC Sydney had failed to follow to the letter the manufacturer's instructions for the operation of the Genesis II Radar Unit.

17 By using the word shall in section 9.2 of the manual the manufacturer would seem to be mandating that a road test be conducted at the "start and conclusion of his or her tour of duty" to "confirm the correlation that exists between the patrol vehicle speedometer and the patrol speed displayed on the radar unit." Assuming for a moment that it is indeed mandatory, does it make sense to be so?

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.

21 For example, if the police officer does not complete the required testing of the device at or around the beginning of his or her tour of duty is he or she then precluded from using that radar device for the entire 12 hour period of his or her shift?

22 Despite the use of the word "shall" in section 9.2 of the manufacturer's manual requires the operator to "conduct a road test at the start and conclusion of his or her tour of duty" it is clear that the sole purpose of this road test is to "confirm the correlation that exists between the patrol vehicle speedometer and the patrol speed displayed on the radar unit."

23 It goes on to advise as follows: "Generally, the correlation will be the same for both units and seldom beyond three kilometres an hour. The difference, if present, is reflective of the underestimation of the speedometer in the police vehicle and not an indication of an inaccuracy with the radar unit."

24 This is a clear indication by the manufacturer that they consider their unit to be the more accurate of the two measurements taken at the road test ie. the radar unit and the police vehicle's speedometer.

25 At some level it also begs the question of what is the purpose of the "road test" if the radar unit's "patrol speed" is deemed by the manufacturer to be accurate no matter what the correlation might be to the police vehicle's speedometer.

26 In reaching this conclusion I am well aware that I am in respectful disagreement with my sister Justice Schnall's conclusion in R. v. Niewiadomski, [2004] O.J. No. 478 at paragraph 29:

• There would be no reason for the device manufacturer to set out the specifications and directions if it mattered not whether they were complied with.

Simply put, there are times when it mattered not and this is one of them when examined in a purposeful and practical fashion

25 In conclusion, while it would in my view have been open to the Justice of the Peace to have a reasonable doubt on the evidence in this trial, I'm not prepared to find that he made any palpable and overriding error in coming to the factual conclusion he did, or that there has been any miscarriage of justice in the result. There was no contradictory evidence brought forward by the accused, who was not present for his trial, to rebut the prima facie case put in evidence by the prosecution.

[43] I find that the approach taken by J.P. Miskokomon was rational, reasonable, and reflective of the evidence that was presented to her. I cannot quarrel with her apparent preference for the reasoning enunciated by Justice Bellefontaine and Justice Klein.

[44] In R. v. Pappas, [2005] O.J. No. 764 (OCJ), Justice Minard was sitting on appeal of a speeding conviction. He said, paragraphs 1 and 2: "It's not a condition-precedent to a finding of guilt that an officer followed to the letter recommended testing procedures, with respect to laser devices ... The officer's attention was drawn to this vehicle because of what he visually observed was a high rate of speed ... it's true that he did not follow to the letter what is recommended by the manufacturer, but that doesn't necessarily, in law, automatically give a defence to the charge."

[45] Then, at paragraph 3: "It's an issue of whether or not there is a reasonable body of evidence that would permit a trier of fact to conclude that the offence has been committed to the exclusion of a reasonable doubt."

[46] In that case, Justice Minard upheld the speeding conviction because the Justice of the Peace at trial was satisfied there was no reasonable doubt as there was no evidence to the contrary to consider. In that case only the officer gave evidence and there, as here, the Justice of the Peace considered the evidence of a highly experienced officer in the application of the instrument, which he applied. He obtained a reading which confirmed his visual observations, and the trial Justice was satisfied that the Crown had met its onus.

[47] Her Worship Miskokomon came to the same conclusion here after receiving evidence that Constable Bourdeau had been notified about a "high miler", in a car matching the description of Mr. Dore's, which he observed to be travelling well over the posted speed limit and for which he obtained three readings of 171 km/hour.

[48] In reviewing the evidence given by Constable Bourdeau at trial, I find that Her Worship did in fact have an evidentiary basis upon which she could come to this conclusion.

Standard of Review

[49] It must be noted that it is not for an appeal court to re-try the case or substitute its view for that of the trial justice. Findings of fact are up to each trial judge or justice on the evidence presented before them.

[50] Findings of fact by a trial judge or justice are therefore entitled to deference. They cannot be set aside unless the trial Justice committed a palpable and overriding error or made findings of fact, including inferences that are clearly wrong, unreasonable or unsupported by the evidence. See R. v. Pham, aff'd [2006] S.C.J. No. 26 (SCC).

[51] I do not find that Justice Miskokomon committed any palpable or overriding error (except in relation to the aforenoted "locked in" requirement of speed). I do not find that she made any findings of fact that were not otherwise supported by the evidence. Her reasons were thorough and her findings were consistent with the only evidence at trial, that being the evidence of Constable Bourdeau.

Additional Defence Submissions

[52] I now want to briefly comment on some of the other issues raised by Defence counsel.

Officer's Notes

[53] With respect to the submission that Constable Bourdeau's notes at the time of the offence were far less detailed than the evidence he gave (and was able to recollect) at trial, I do not accept the Defence submission that this made his evidence any less reliable or that more complete notes were required.

[54] J.P. Miskokomon accepted Constable Bourdeau's evidence and was not troubled by the absence of more detailed notes. Specifically, she accepted his evidence that his notes "only include important things" and that he "has developed his own simplified description of incidents he investigates."

[55] I have reviewed Constable Bourdeau's evidence. I find that J.P. Miskokomon properly came to the conclusion that she did.

[56] Defence counsel relies on three Ontario Court of Justice decisions: R. v. Hayes, [2005] O.J. No. 5057, R. v. Karunakaran, 2008 ONCJ 397 and R. v. Vandemunt, 2011 ONCJ 844.

[57] The first two cases were decided prior to R. v. Machado, 2010 ONSC 277, and the third case didn't make any reference to this Superior Court decision. The Hayes case alone can be distinguished because in that case, the court found that the officer had noted absolutely nothing about what happened on that particular date.

[58] Justice Durno had this to say at paragraph 121 of R. v. Machado, "While officer's notes are provided as part of disclosure, there is no law that I am aware of that an officer must record everything he or she did or saw in their notebook to comply with the Crown's disclosure obligation."

[59] Then at paragraph 122 in referencing R. v. Antoniak, [2007] O.J. No. 4816 (SCJ), "It should be remembered that an officer's notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officers that on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events ... The significance of an omission ... must be determined by the trier of fact on a case by case basis."

[60] Constable Bourdeau had an independent recollection of the events which went beyond the scope of his notes. His evidence was clear, precise and consistent. J.P. Miskokomon was not troubled by the absence of more detailed notes and I am not similarly troubled. She properly accepted his evidence.

Lane Requirement

[61] Defence counsel has pointed the court to the case of R. v. Chaudhry, [2012] O.J. No. 3919 (OCJ), as standing for the proposition that an officer using the Genesis II radar device in the stationary mode must, according to the manufacturer's instructions, be monitoring traffic in the same lane as the patrol vehicle, or the opposite lane or in both lanes.

[62] In R. v. Chaudhry, the police officer was presented with the "manufacturer's booklet" which stated as much. The court found a reasonable doubt due to the officer not being in compliance with the requirement as set out in the booklet. The officer also testified that he found the restriction to be "absurd."

[63] J.P. Miskokomon had no such evidence before her. No "booklet" was provided to Constable Bourdeau. All that Defence counsel presented to the officer was a four page excerpt for what was purported to be part of the manufacturer's manual for the Genesis II radar device he was operating. The limited excerpt which Constable Bourdeau was shown did not address this particular issue or "requirement."

[64] Further, Defence counsel did not and was not able to demonstrate that the excerpt he provided to Constable Bourdeau was in fact an excerpt of the current manual for the Genesis II Select Directional radar device. (Constable Bourdeau stated that it looked familiar, and looked like materials he had previously reviewed).

[65] Unlike the officer in Chaudhry, supra, Constable Bourdeau was not questioned by Defence counsel about this suggested requirement by the manufacturer. He was not asked if there was a lane requirement that he be in when operating the unit and the court received no evidence on this point. Constable Bourdeau incidentally indicated that he was in the median, next to the guardrail and facing the opposite direction of Mr. Dore.

[66] The Chaudhry decision was decided on the facts and the evidence before that court which is considerably different than the case heard by Her Worship Miskokomon.

Tracking History

[67] The Defence submits that Constable Bourdeau should have performed a tracking history according to the manufacturer's instructions. Constable Bourdeau disagreed with this suggestion stating "...it's not mandatory now."

[68] No evidence was offered to contradict Constable Bourdeau's evidence. Rather, counsel relied on R. v. Hawkins, 2009 ONCJ 101 as authority for that proposition.

[69] It is noteworthy that in Hawkins, the officer was using a different radar device (Genesis VP). In that case the court was presented with a manual which actually set out that a tracking history must be performed prior to taking enforcement action.

[70] I also note that the evidence given by Constable Bourdeau is consistent with the court's finding in York (Regional Municipality) v. McGuigan, 2017 ONSC 436 (SCJ), where at paragraph 9 the court noted: "in 2010, the manufacturer changed the testing portion of the manual by removing the tracking history..." requirement, prior to enforcement action being taken.

Speed Estimation

[71] In relation to the argument that Constable Bourdeau did not complete a required estimate of speed, I do not find that Constable Bourdeau's failure to accurately estimate the speed of the Dore vehicle to be fatal to the Crown proving its case.

[72] No evidence was presented in this case to support the defence contention that the current user manual requires an estimation of speed by the officer. Constable Bourdeau's evidence was that it was not contrary to the manufacturer's instructions not to actually estimate the speed of the vehicle (within +/-5 km's of the locked in speed).

[73] No expert evidence was offered by the Defence to demonstrate that strict adherence to an instruction manual is a required element of the offence of stunt driving.

[74] Interestingly, in one case where the court did receive expert evidence on the use of the Genesis II Select Directional radar device, the expert testified that the current Genesis II Select Directional manual "doesn't stipulate speed estimation or tracking history." See R. v. Skimming-Quesnel, [2011] O.J. No. 3799 (OCJ).

[75] I simply point this out to highlight that different devices have different manuals.

[76] Evidence is therefore required to demonstrate that existing manufacturer's instructions are not being complied with, if that argument is to be made with any possible success, and not simply speculation.

[77] Convictions for speeding have been upheld based on an officer testifying that he made a visual observation of the high rate of speed. Requirements that the numeric value be stated appear to be limited to those cases where the manufacturer's manual requires it.

[78] Constable Bourdeau gave evidence as to: the high rate of speed of the Dore vehicle; a description of the vehicle admitting that once a vehicle gets to 160 or 190 km's/hour, that he cannot calculate that speed; how he distinguished the Dore vehicle from others in the range of the radar beam at the time of the incident; the steps he took to test the device and how he did so in accordance with the manufacturer's instructions including the requirements set out in s. 7.1 (self test, display test, circuitry test, speed simulation test) and 7.2 (road test); the purpose of a radar device (to accurately measure the speed of a moving vehicle); the nature of his qualifications to operate the radar device; and, the fact that the radar unit was operating properly on August 17, 2013.

[79] This was the evidence Justice Miskokomon had before her and she quite properly accepted it.

Appellate Deference

[80] Findings of fact made by a trial justice cannot be overturned on appeal unless there is no basis for these findings. See R. v. Williams Operating Corp., [2008] O.J. No. 3736 (SCJ).

[81] As I indicated earlier, it is not the duty of an appeal judge under s. 121 to re-try the case or to substitute his or her view of the evidence for that of the trial judge. Any error on the part of the trial judge must be such that, but for the error, the judge might have come to a different conclusion. See R. v. St. Michael's Hospital, [1987] O.J. No. 2453 (Ont. Dist. Ct.).

Statutory Framework and Disposition

[82] Section 125 of the Provincial Offences Act provides that where a court exercises any of the powers conferred by s. s.117 - 124, that it may make any order, in addition, that justice requires.

[83] Section 121 of the Act sets out the powers of a court on appeal against acquittal (dismiss, allow the appeal, set aside the finding and order a new trial or enter a finding of guilt and impose sentence).

[84] In this case, Justice of the Peace Miskokomon made an error by imposing a requirement that an essential element of the offence is that the police officer "lock in" the speed of the subject vehicle on the radar device. Notwithstanding that she concluded that she had no evidence that the officer did in fact do so, I note that at page 17 of the trial transcript beginning at line 10, Constable Bourdeau was asked "And did you do that on this occasion, did you lock it in on this occasion?" The response was "Yes, I did." She therefore actually had that evidence.

[85] I find that to be neither here nor there given the agreement reached by counsel prior to argument of this appeal confirming the law, that such a requirement is not an essential element of the offence.

[86] I find that but for this error Her Worship would have convicted Mr. Dore of the offence of stunt driving.

[87] I find that Justice of the Peace Miskokomon made no other errors in arriving at her conclusions. She carefully considered all of the evidence presented to her. I will not interfere with her findings.

[88] The offence of stunt driving is a strict liability offence. See R. v. Raham, 2010 ONCA 206. Mr. Dore presented no defence of due diligence or necessity. In fact, he presented no evidence.

[89] I find that the Crown proved all of the essential elements of the offence beyond a reasonable doubt in the trial before Her Worship.

[90] I therefore substitute a finding of guilt pursuant to s. 125 of the Act.

[91] The appeal is granted.

[92] Section 172(2) sets out a range of penalties that may be imposed. It will therefore be necessary for me to receive submissions from counsel on this issue. Counsel shall therefore contact the Trial Co-Ordinator to co-ordinate a date before me for that purpose. This date shall be set on the record when the matter next returns on April 13, 2017 at 10:00 in courtroom # 101.

Released: April 4, 2017

Signed: Justice Paul J.S. Kowalyshyn