Court Information

Ontario Court of Justice

Date: February 10, 2017

Court File No.: 9325543Z

Parties

Between:

Regional Municipality of York Respondent

— And —

Junjao Yuan Appellant

Proceeding

Provincial Offence Appeals

Before: Justice J.F. Kenkel

Appeal and Ruling: February 10, 2017

Counsel:

• Ms. Volga Pankou – counsel for the Respondent
• Mr. Adelin-Bogdan Mocanu – Paralegal agent for the Appellant

Decision

KENKEL J.:

Introduction

[1] Mr. Yuan was convicted at trial of Stunt Driving contrary to s. 172(1) of the Highway Traffic Act RSO 1990, c. H.8. The appellant alleges several errors at trial:

• The officer should not have reviewed his notes prior to his testimony. Having done so he should not have been permitted to use those notes to refresh his memory at trial.

• The Justice of the Peace erred in finding that the officer had a sufficient independent recollection of the matter to testify.

• The Justice of the Peace erred in accepting the officer's evidence as to speed based on his speedometer. The appellant submits that R v Koumoudouros [2005] OJ No 5055 (CJ) requires the prosecution to prove independent certification and testing of the speedometer before that evidence is admissible in a trial.

• The Justice of the Peace erred in finding that the prosecution had proved the appellant's rate of speed exceeded 50 km/hr over the posted limit.

• The Justice of the Peace pre-determined the conviction from the outset and disregarded the evidence at trial.

[2] For the reasons that follow I find that the Justice of the Peace committed no error and the appeal must be dismissed.

Police Officers Referring to Notes

[3] Constable Gemmell was testifying on July 11, 2016 about a traffic incident that took place on June 6, 2014. He was shown a photocopy of his notes prior to his testimony. He testified that he had an independent recollection of the events but required the notes to refresh his memory as to the specific details. The court ensured that the photocopied notes that were in the prosecution brief were the same as the notes disclosed to the defence. There was no suggestion that the notes had been altered from the original. The defence objected to the officer refreshing his memory from notes generally and from a photocopy of his notes in this case.

[4] These same objections were considered in this Region in R v Thom 2010 ONCJ 492 where Justice Armstrong as he then was held that it was an error in law for a Justice of the Peace to refuse to allow an officer to refresh his memory from photocopied notes. The submissions of the defence at trial repeated the same error and the Justice of the Peace was correct that the prosecution had established a sufficient foundation to allow the officer to refresh his memory from his notes.

[5] The Justice of the Peace was right that nothing turned on the fact that the officer reviewed his notes prior to his testimony. This standard practice is helpful in our busy courts. The insistence by the appellant in this case that officers must be shown to have a pristine independent recollection of the details of events before they testify or refer to notes overstates by far the notion of "independent recollection". As Justice Armstrong explained, the prosecution need merely show that the witness has some independent memory of the incident. If the witness has no recollection at all then another legal test – past recollection recorded – is engaged. In this case the court properly accepted that this officer had the required independent recollection.

Speedometer as Evidence of Vehicle Speed

[6] The appellant submits that the prosecution must show that a vehicle speedometer has been independently tested and certified before a driver's evidence as to speed is admissible. He cites R v Koumoudouros [2005] OJ No 5055 (CJ) as authority for that requirement.

[7] The appellant's submission misstates the ruling in Koumoudouros. The endorsement in that case was very brief – two sentences. The court did not rule on a point of law but rather found that the leading case, R v Bland, [1974] OJ No 2139 (CA) had been distinguished in the circumstances of the case. As Justice Bellefontaine held in R v Sibio 2010 ONCJ 315 at para 9, the case turned entirely on its facts and does not state or give rise to any legal principle.

[8] In Bland, the Ontario Court of Appeal held at paragraph 16 that evidence of speed obtained from a car speedometer is prima facie evidence of that fact which is admissible. Such evidence may be challenged by other evidence elicited in cross-examination or from defence witnesses that suggests that the speedometer on the vehicle was inaccurate. To impose the certification requirement suggested by the appellant would add unnecessary time and expense in these trials and would prevent defendants from calling evidence as to their own vehicle speed.

Proof of Speed in this Case

[9] The Justice of the Peace was correct to admit the officer's evidence as to vehicle speed in this case. The fact that the officer travelled 185 km/hr on a 100 km/hr road to try and catch up with the appellant but had difficulty doing so provided a factual basis from which the Justice of the Peace logically inferred the appellant's speed exceeded 150 km/hr as alleged.

[10] The Justice of the Peace considered some inconsistency in the officer's estimates as to times, but she properly considered the whole of the evidence and found that the prosecution had shown beyond a reasonable doubt that the vehicle's speed was over 50 km/hr above the speed limit. There's ample foundation for that finding in the evidence.

Did the Court Pre-Judge the Case?

[11] There's no foundation for this submission. The court considered the evidence carefully and gave full reasons for the final decision.

Conclusion

[12] The appeal is dismissed.

Appeal and Ruling: February 10, 2017

Justice J.F. Kenkel