Court Information

Ontario Court of Justice

Date: January 8, 2018

Court File No.: Cornwall, Ontario 3960 999 00 5744299B 00

Parties

In the Matter of an appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen Respondent

— and —

Jan Christopher Beckman Appellant

Judicial Information

Before: Justice D.A. Kinsella

Heard on: November 21, 2017

Reasons for Judgment released on: January 8, 2018

Counsel:

• Matthew Collins, counsel for the prosecution
• James Moak, agent for the defendant Jan Christopher Beckman

On appeal from: A conviction by Justice of the Peace Forgues on April 6, 2017

Judgment

KINSELLA J.:

Introduction

[1] The defendant was charged with driving a motor vehicle with a speed measuring device (commonly referred to as a "radar detector") contrary to section 79(2) of the Highway Traffic Act ("HTA").

[2] The trial took place on April 6, 2017. The defendant was represented at the trial by an agent, Mr. Moak. The prosecution called one witness. The defendant did not call any evidence. After hearing the evidence and submissions the justice of the peace found the defendant guilty, registered a conviction, and imposed a fine.

Facts

[3] Constable Jay Phillips of the Ontario Provincial Police testified on behalf of the prosecution. He testified that he was on duty on May 26, 2016. He was parked on a property adjacent to Highway 138 in South Stormont, ON when, at approximately 3:30 p.m., he observed a red Lexus travelling southbound on Highway 138.

[4] Constable Phillips testified that he was operating a device called a Spectre, which is a piece of equipment used by police to detect the presence of speed measuring devices in travelling vehicles. The Spectre, the officer testified, is a passive device which is designed to listen for the unique electrical signature or frequency which is given out by radar detectors. When it detects this signature, the device gives the operator both a visual and audio signal. He stated that, in his experience, that frequency or signature which the Spectre responded to was unique "99 percent of the time" to a radar detector.

[5] Constable Phillips further testified that, when the Lexus passed directly in front of his vehicle, the Spectre generated an audio and visual positive response. Once the vehicle pulled away from his location, he no longer received any signal. These observations indicated to him that there was a speed measuring device present. He pulled his vehicle out so that he was parallel to the Lexus, which was now stopped at a red light. From this vantage point he could see something which he believed was a radar detector sitting on the dash of the Lexus.

[6] Constable Phillips subsequently stopped the vehicle, which was being operated by the appellant. When he approached the driver, he noted that the device he had seen on the dash was no longer visible. He then asked the driver to step out and searched the motor vehicle for the device. He located the device he had previously seen on the dash along with a power cord in a plastic bag on the passenger floor. This device was labelled "Beltronics R65 Professional Series." He tested the device by turning on his radar in his car; when he did so, the seized device reacted by displaying an alert showing the frequency which his radar gave out. He therefore concluded that the seized device was in fact a speed measuring device. He seized the device and issued the appellant a ticket.

[7] In cross-examination, Constable Phillips disagreed with the suggestion that there were other vehicles present which could have generated the signal on his Spectre. While he acknowledged not being familiar with the particular make and model of speed measuring device he had retrieved from the appellant's vehicle, he maintained that he had seized numerous radar detectors over his twenty-nine years of experience and all had a similar appearance.

Grounds of Appeal

[8] The defendant argues the following grounds:

a. The learned justice of the peace erred in finding that the officer had reasonable and probable grounds to stop the defendant's vehicle (and to subsequently seize the device identified as a radar detector);

b. There was insufficient evidence to support the learned justice of the peace's conclusion that the prosecutor had proven that the seized device was in fact a speed measuring device; and

c. The learned justice of the peace erred in reversing the burden of proof in that she required the appellant to prove the device was not a speed measuring device.

[9] Mr. Moak argues, as he did at trial, that the officer needed to have reasonable and probable grounds to stop and search the vehicle. He maintained that the officer's observations did not meet the requirement of reasonable and probable grounds. In oral submissions on appeal, while he conceded that section 216 of the HTA did give the officer authority to stop a vehicle absent reasonable and probable grounds, he maintained that the police needed reasonable and probable grounds to search the appellant's vehicle and seize the device. An application for Charter relief was not brought at trial.

[10] Mr. Moak, at trial and on appeal, also submitted that the prosecutor had failed to prove beyond a reasonable doubt that the device seized from the appellant was a speed measuring device. He submitted that the officer's lay opinion, based on his experience and observations, was insufficient and that something more was needed. He submits that some kind of expert evidence, such as an affidavit from the manufacturer confirming that the device is in fact a speed measuring device, is needed.

[11] Finally, Mr. Moak submits that the learned justice of the peace effectively reversed the burden of proof in her decision. He relies on the following passage to support this submission:

THE COURT: Yes, so, we will forfeit it [referring to the seized device] to the Crown and we will wait for the appeal period and I just want to review my notes to make sure that I went over everything. I heard Mr. Moak mention concerning the Beltronics radar detector it reacted, but we have to prove it's a radar detector. It was not proven that it wasn't a radar detector. I am, I'm satisfied with the evidence that was presented with the officer's experience and….

[12] Of note, this passage occurred after the learned justice of the peace had found that the prosecutor had proven the offence to the correct standard and came about as the parties were having discussions about whether or not the device could and should be forfeited. In addition, once her words were pointed out to her by the prosecutor, the justice of the peace corrected herself and made it clear that she was satisfied that the seized device was in fact a radar detector.

Powers of the Appellate Court

[13] This appeal is pursuant to Section 135 of the Provincial Offences Act ("POA"). An appeal under section 135 of Part I offences is conducted by means of a review. The language used in section 135 is very broad. Unlike appeals from proceedings under Part III of the POA, or those governed by the Criminal Code, the court is not limited as to when it may intervene. An appeal judge is not required to find that the trial judgment was unreasonable, unsupported by the evidence or erroneous in law in order to intervene.

[14] There are, however, some practical limitations to this broad authority. As observed by Justice Duncan in the case of R. v. Gill, "…it could not have been the intention of the legislature that the Provincial Offences Appeal Court re-try every case. The Act grants a defendant only one trial; it is not a trial run." [at para 10]

Relevant Legislation

[15] Section 79(1) of the HTA defines a speed measuring device as follows:

Any device or equipment designed or intended for use in a motor vehicle to warn the driver of the presence of speed measuring equipment in the vicinity and includes any device or equipment designed or intended for use in a motor vehicle to interfere with the effective operation of speed measuring equipment.

[16] Subsection (3) of the same section gives police officers the following powers of enforcement:

A police officer may at any time, without a warrant, stop, enter and search a motor vehicle that he or she has reasonable grounds to believe is equipped with or carries or contains a speed measuring warning device contrary to subsection (2) and may seize and take away any speed measuring warning device found in or upon the motor vehicle.

[17] In addition, section 216 of the HTA allows police officers broad powers to stop motor vehicles:

A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

Analysis

[18] Although no Charter application was brought, at trial Mr. Moak argued that the officer lacked reasonable and probable grounds to stop and search the appellant's vehicle. Although not entirely clear, it would seem the appellant's position at trial was that the charge should be dismissed because the officer did not have the authority to stop the vehicle or seize the device absent reasonable grounds.

[19] The requirement for reasonable and probable grounds does not exist under section 216 of the HTA. A police officer engaged in the lawful execution of his or her duties can stop a motor vehicle for any reason. It is clear, however, that an officer does need reasonable grounds to search a vehicle for a speed measuring device pursuant to section 79(3) of the HTA.

[20] The phrase "reasonable and probable grounds" does not amount to proof beyond a reasonable doubt nor is it the same as a prima facie case. Reasonable and probable grounds have both a subjective and objective component. In determining whether reasonable and probable grounds exist, the Court ought not to weigh individual items of evidence independently of one another; all of the circumstances must be viewed in their totality (see R. v. Censoni and R. v. Shepherd 2009 SCC 35, [2009] 2 S.C.R. 527 (S.C.C.))

[21] Constable Phillips testified that he believed the device he had seen on the dashboard was a radar detector. He had a sufficient amount of time, in his view, to observe the object which appeared to him to be a radar detector, something he had seen many times before. As well his Spectre unit had alerted to the presence of a speed measuring device when the appellant's vehicle was directly in front of Constable Phillips vehicle, an alert which ended when the vehicle passed by. As such, there was ample evidence for the learned justice of the peace to conclude, as she did, that the officer had reasonable grounds to believe that a speed measuring device was in the appellant's vehicle. Those reasonable grounds gave him authority to search the vehicle as he did.

[22] The definition of a speed measuring device as set out in section 79(1) is quite broad. There is no set list of prohibited devices nor is there a requirement that the prosecution call expert evidence to establish that a device is a speed measuring device. In this case the prosecution called Constable Phillips, who has nearly three decades of experience in policing. He testified that he had seized many speed measuring devices over the years and was familiar with their appearance and how they operated. In addition, Constable Phillips was equipped with a device, the Spectre, which allowed him to detect the presence of a speed measuring device. Finally, when Constable Phillips retrieved the device from the appellant's vehicle and turned it on, it responded to the radar in his own police vehicle. The learned justice of the peace's finding, therefore, that the prosecutor had proved that the device retrieved from the appellant's vehicle was a speed measuring device was reasonable and supported by the evidence.

[23] As for the final ground of appeal, while it is clear that in the one passage the justice of the peace appeared to reverse the burden, those comments cannot be read out of their larger context. A review of her entire decision makes it clear that she correctly understood and applied the law with respect to the burden of proof.

[24] The appeal is therefore dismissed.

Released: January 8, 2018

Signed: Justice D.A. Kinsella