Court File and Parties

Ontario Court of Justice

Date: 2018-05-15

Court File No.: Halton - Milton 7188743B

Between:

Her Majesty The Queen

— AND —

Grace A. Abelarde

Before: Justice of the Peace Kenneth W. Dechert

Heard on: August 16, 2017, November 15, 2017 and February 23, 2018

Reasons for Judgment released on: May 15, 2018

Provincial Offences Court – Milton, Ontario

Counsel

For the Prosecution: A. Senkus and J. Stewart

Representative for Grace A. Abelarde: E. Diesenhouse

Statutes, Regulations and Rules Cited

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, s. 128

Cases Cited

• Regina v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5
• Regina v. Lifchus, [1997] 3 S.C.R. 320
• Regina v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.)
• Regina v. W.(D.), [1991] 1 S.C.R. 742

Judgment

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

INTRODUCTION

[1] Under Certificate of Offence no. 7188743B, as amended, the defendant, Grace A. Abelarde, stands charged that she on the 18th day of March, 2017, at Dundas Street and Meadowridge Drive, in the Town of Oakville, did commit the offence of Speeding – 105 km./hr. in a posted 60 km./hr. zone, contrary to section 128 of the Highway Traffic Act.

[2] The trial of this charge began before me on August 16, 2017. It continued on November 15, 2017 and on February 23, 2018, when it was completed. The proceeding was then adjourned until May 15, 2018, for my judgment.

[3] The prosecution was represented by Ms. J. Stewart and Ms. A. Senkus. The defendant was represented by paralegal, Mr. E. Diesenhouse. During the course of the trial, I received verbal testimony from Police Constable Richard Solecki of the Halton Regional Police Service, on behalf of the prosecution and from Grace Abelarde, on her own behalf.

[4] The undisputed evidence in this proceeding establishes the following elements of the subject offence, beyond a reasonable doubt:

1. that on the 18th day of March, 2017, between 6:30 a.m. and 6:55 a.m., Grace A. Abelarde was driving a Toyota motor vehicle in an easterly direction on Dundas Street, from a location just east of its intersection with Prince Michael Drive, continuing through its intersection with Meadowridge Drive, to a location just west of its intersection with Ninth Line, in the Town of Oakville and Region of Halton;

2. that Dundas Street is a "highway" within the meaning of the Highway Traffic Act;

3. that the posted speed limit for the subject portion of Dundas Street is 60 kilometres per hour.

[5] Accordingly, the sole factual issue in this proceeding is whether the prosecution has established, beyond a reasonable doubt that the defendant was driving her motor vehicle at a rate of speed in excess of the said posted speed limit. The evidence in respect of this issue is conflicting. Constable Solecki testified that in using a Lidar – laser speed measuring device at the material time, he determined that the motor vehicle was travelling at rates of speed well in excess of the 60 kilometres per hour speed limit. On the other hand, Ms. Abelarde testified that she did not, at the material time, drive her motor vehicle at a rate of speed in excess of the posted speed limit, maintaining that her rate of speed did not exceed 40 kilometres per hour.

[6] This is a case which turns on the underlying issue of credibility. In reaching my decision in this case, I must remind myself that the rule of reasonable doubt applies to the issue of credibility and that the principles enunciated in the case of Regina v. W.(D.), [1991] 1 S.C.R. 742, per Cory J, must be applied. Those principles were summarized in paragraphs 27 and 28 of the decision as follows:

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. …

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. …

[7] In her decision in Regina v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 8, Abella J. summarized the W.(D.) instruction as follows:

It is noteworthy that in W.(D.) itself, despite the trial judge's error instructing the jury that they were engaged in a credibility contest, the conviction was upheld. This of course does not give trial judges licence to wrongly analyze credibility issues, but it does serve to remind that what W.(D.) offered was a helpful map, not the only route. Its purpose was to ensure that triers of fact – judges or juries – understand that the verdict should not be based on a choice between the accused's and Crown's evidence, but on whether, based upon the whole of the evidence, they are left with a reasonable doubt as to the accused's guilt. …

[8] Furthermore, the phrase "reasonable doubt" was defined by Cory J. in his decision in Regina v. Lifchus, [1997] 3 S.C.R. 320, in part, as follows:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

THE EVIDENCE

(i) The Testimony of Police Constable Richard Solecki

[9] Constable Solecki testified that as a member of the Halton Regional Police Service, he investigated the circumstances of the subject charge of speeding. He testified based upon his independent recollection of the subject events, with the assistance of his investigative notes from time to time, to refresh his existing memory.

[10] He testified that on the 18th day of March, 2017, prior to 6:59 a.m., he was engaged in traffic enforcement by monitoring the speed of motor vehicles travelling in an easterly direction on Dundas Street, from the area of its intersection with Prince Michael Drive, through its intersection with Meadowridge Drive to his surveillance location, between Meadowridge Drive and Ninth Line, in the Town of Oakville. He was conducting speed enforcement from his unmarked police cruiser (which contained a hidden emergency light package), which he parked on the sidewalk adjacent to the south side of Dundas Street in a perpendicular fashion, facing north. From that location the officer was able to observe eastbound traffic travelling towards his location from his left.

[11] Constable Solecki testified that at the time he began his speed measurement exercises at the subject location, prior to 6:59 a.m., it was "dark-out". He described the weather as consisting of "light snowfall" with a temperature of approximately 1 degree Celsius. He advised that the portion of Dundas Street which he was monitoring contained three lanes for eastbound traffic and three lanes for westbound traffic. He advised that the roadway was in "good condition", but was "damp from a recent snowfall".

[12] In conducting speed enforcement, Constable Solecki stated that he was using a Lidar – laser speed measuring device, which he described as an "Ultra-Light LAB LTI 20/20" device. He stated that he had been using that particular unit for several years, in his capacity as a traffic enforcement officer. He advised that the Lidar device is "used to accurately measure the speed of a moving vehicle".

[13] Constable Solecki testified that he was trained and qualified in the operation of "radar/Lidar" devices and that he had last been re-qualified in that regard in October 2015. He advised that this qualification was valid until October 2020.

[14] The officer testified that on March 18, 2017 at 6:10 a.m., he tested the subject Lidar instrument "following the manufacturer's guidelines" and found it to be in "proper working order". He stated that he re-tested the device at the end of his shift that day at 4:22 p.m., using the same procedures, and once again found it to be in "proper working order".

[15] He advised that some-time prior to 6:59 a.m., he had occasion to observe a car, which he later determined to be driven by the defendant, travelling eastbound on Dundas Street, approaching his location. He noted that the vehicle was situated in the middle lane just east of the intersection of Prince Michael Drive. He remarked that it was moving "very quickly". Furthermore, at that time he noted the presence of another vehicle travelling approximately 100 metres in front of the defendant's vehicle, in the middle lane.

[16] The officer testified that upon observing the defendant's vehicle approaching the said intersection, he was able to place the laser beam on the centre of the defendant's vehicle obtaining a "series of speed readings" between 100 and 105 kilometres per hour. He stated that he then "locked" a speed reading for the said car of 105 kilometres per hour, at a distance of 628 metres.

[17] Constable Solecki stated that after obtaining this reading, he continued to monitor the defendant's vehicle and the other vehicle travelling in the centre lane in front of the defendant, as they proceeded eastbound on Dundas Street toward his location. He advised that he continued to focus on the defendant's vehicle in the centre lane as it was travelling at a high rate of speed and gaining position on the slower moving vehicle. The officer advised that as the vehicles approached the next intersection, that of Meadowridge Drive, the second vehicle moved out of the middle lane into the curb lane, out of the path of the defendant's fast-moving vehicle.

[18] The officer stated that he then activated the Lidar device on the front of the defendant's vehicle, recording a locked speed reading of 95 kilometres per hour at a distance of 258.4 metres and a second locked speed reading of 95 kilometres per hour at a distance of 228.8 metres, as the vehicle was situated "very close" to the entrance to the western boundary of the intersection with Meadowridge Drive. Constable Solecki testified that he believed that the second vehicle which had moved into the curb lane prior to reaching Meadowridge Drive was likely travelling either parallel to the defendant's vehicle or behind that vehicle at the time that he activated the laser device. He was, therefore, able to lock the laser beam on the front of the defendant's vehicle in order to properly obtain the two speed readings.

[19] The officer stated that once he obtained the second set of speed readings, he took steps to stop the defendant's motor vehicle, by pulling out into the curb lane of Dundas Street in order to pursue the vehicle. He went on to state that he caught up with the defendant's vehicle and stopped her on the right shoulder of Dundas Street at a location west of Ninth Line. Constable Solecki testified that he never lost sight of the car driven by the defendant, from the time that he first made observations of it travelling eastbound on Dundas Street at Prince Michael Drive until he stopped the vehicle on Dundas Street, eastbound, at a location between Meadowridge Drive and Ninth Line.

[20] Officer Solecki's testimony pertaining to his activities in measuring the speed of the defendant's motor vehicle as it travelled along Dundas Street, was not shaken on cross-examination. He specifically disagreed with the suggestions of the defendant's representative that he may have mistakenly recorded the speed of the other vehicle which was travelling near to the defendant's vehicle at the subject time, rather than the speed of the defendant's vehicle. Furthermore, he specifically rejected the proposition made to him by the representative that he was confused as to the vehicle which was speeding and thereby pulled over the wrong vehicle. The officer was steadfast in his resolve that he obtained the subject speed readings from the defendant's vehicle at various points along Dundas Street.

[21] In summary, the measurements of the speed of the defendant's vehicle, at the material time, were made through the use of a Lidar – laser speed measuring device by Constable Solecki, a trained and qualified operator. He properly used the device to obtain the readings. Furthermore, he tested the Lidar device prior to its use, according to manufacturer's guidelines, and found to be in proper working order. He re-tested the instrument following its use to record the subject speed readings, using the same guidelines, noting that it continued to be in proper working order at that time.

[22] In light of these factors and in accordance with the dicta of Feldman J.A. in Regina v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.), I am able to take judicial notice of the prima facie accuracy and reliability of the three Lidar speed measurements, taken of the defendant's vehicle at the relevant time.

[23] During the course of cross-examination, Constable Solecki stated that the intersections of Dundas Street and both Prince Michael Drive and Meadowridge Drive, were, at the relevant time, governed by traffic control signals. He testified that he wasn't paying attention to the colour of the traffic light governing eastbound traffic at Prince Michael Drive at the time that he obtained the locked speed reading of the defendant's vehicle at that intersection, as the intersection was a long way away from his surveillance position. When the defendant's representative asked the officer if, at the material time, he observed the defendant's vehicle stopped at that intersection for a red light, he advised that he did not see it stop. He noted that while it was possible that the defendant had stopped for the red light, that scenario was, nevertheless, unlikely, given the speed of the vehicle measured by laser, at a location just east of the said intersection.

[24] Furthermore, during cross-examination, Constable Solecki confidently asserted that the defendant's vehicle did not stop at the intersection of Dundas Street and Meadowridge Drive, upon approaching that intersection from the west. The officer stated that at all times he was focussing on the defendant's vehicle. He advised that he maintained continuous surveillance of the vehicle as it travelled along Dundas Street from just east of the intersection of Prince Michael Drive to Meadowridge Drive. He noted that as the defendant approached this intersection, the traffic light for eastbound traffic was green. He stated that the defendant passed through the intersection on a "stale green" light.

(ii) The Testimony of Grace Abelarde

[25] During the course of her testimony, Ms. Abelarde acknowledged that some-time between 6:30 a.m. and 6:55 a.m. on March 18th, 2017, she was driving her Toyota Corolla motor vehicle, being a standard transmission vehicle, in an easterly direction on Dundas Street from its intersection with Prince Michael Drive, through its intersection with Meadowridge Drive to a location just west of Ninth Line. She advised that she was, at the time, on her way to work in the City of Mississauga.

[26] Ms. Abelarde steadfastly denied driving her vehicle on the said portion of Dundas Street at a rate of speed in excess of 60 kilometres per hour. In fact, she was adamant that due to unusual circumstances which she was facing that morning, her speed did not exceed 40 kilometres per hour.

[27] Ms. Abelarde explained that she "hit" red lights at the intersections of Prince Michael Drive and Meadowridge Drive, and therefore had to stop. She testified that in travelling eastbound on Dundas Street, she stopped for a red light at the intersection of Prince Michael Drive. She stated that once the traffic signal turned green, she accelerated her vehicle through the intersection, by shifting the standard transmission into first gear until it reached a speed of approximately 20 kilometres per hour, and then into second gear to achieve a higher speed, to the maximum speed for that gear; that of 40 kilometres per hour.

[28] Ms. Abelarde stated that once she achieved the rate of speed of 40 kilometres per hour while travelling between Prince Michael Drive and Meadowridge Drive, she had to slow down to stop for another red light at the intersection of Meadowridge Drive. In that regard, she advised that she shifted down from second gear to first gear and then into "neutral", so as to coast to the westerly boundary of the intersection. She testified that once the traffic light turned green, she began to shift her gears up to second gear, once again, for purposes of reaching a speed of 40 kilometres per hour as she continued eastbound on Dundas Street. She testified that she was eventually pulled over by the traffic enforcement officer for the offence of speeding, just west of Ninth Line.

[29] The defendant stated that she was unable to achieve speeds higher than 40 to 45 kilometres per hour over the subject stretch of highway, due to the timing of the red traffic lights at the intersections of Prince Michael Drive and Meadowridge Drive, coupled with the slippery driving conditions and the short distance between the intersections, thereby precluding her from moving into higher gears to achieve higher speeds. She advised that she was not in a hurry to get into work that morning, as she did not need to start her shift until 7:30 a.m.

[30] She acknowledged that her belief as to her vehicle's rate of speed at the material time, was based solely on her lay opinion that her vehicle could not travel at a rate of speed higher than 40 kilometres per hour while in second gear. It would appear that she did not look at her speedometer during the material time, while she travelled along the subject stretch of Dundas Street, in order to confirm her estimate of the speed based upon her personal experience with her car's performance, relative to the standard transmission system.

[31] The defendant's evidence pertaining her vehicle's speed over the relevant stretch of Dundas Street was, at times confusing. Additionally, her evidence respecting the actions of the other vehicle, the Toyota Venza, over the stretch of Dundas Street between Meadowridge Drive and Ninth Line, was, in my view, internally inconsistent.

[32] During examination-in-chief, Ms. Abelarde testified that she initially noticed the presence of another vehicle similar to the make and model of her vehicle, while she was travelling in the centre lane, east of Meadowridge Drive. She stated that at that time, she observed that vehicle in the curb lane beside her. While she later clarified her testimony, indicating that she believed that the Toyota Venza had turned right on to Dundas Street from Meadowridge Drive when she was stopped for a red light at the intersection, she nevertheless remembers that the Venza was located in the curb lane of Dundas Street, beside her, once she had she crossed through the intersection.

[33] On the other hand, during cross-examination the defendant presented a different version of events pertaining to the actions and location of the Toyota Venza. She stated that she observed the Venza turn right onto Dundas Street from Meadowridge, while she continued to wait for a period of approximately 20 seconds, for the eastbound red light at the intersection to turn green.

ANALYSIS

Issue: Whether the defendant was, at the material time, driving her motor vehicle on Dundas Street, at a rate of speed in excess of the posted speed limit of 60 kilometres per hour?

[34] In considering this remaining issue, in the context of the underlying credibility sub-issue, I will focus on two distinct time frames and the speed readings relative to those times frames. The first time frame relates to the speed reading of 105 kilometres per hour, allegedly obtained from the defendant's motor vehicle when it was located on Dundas Street, just east of the eastern boundary of its intersection with Prince Michael Drive. The second time frame relates to the two speed readings of 95 kilometres per hour, allegedly obtained from the defendant's vehicle as it was travelling on Dundas Street at a location west of its intersection with Meadowridge Drive.

(a) The speed reading of 105 kilometres per hour

[35] According to Constable Solecki, he obtained this speed reading from the defendant's vehicle as it was travelling in an easterly direction on Dundas Street and situated just east of the intersection with Prince Michael Drive. The defendant denies travelling at a rate of speed in excess of the 60 kilometres per hour speed limit and in fact asserts that in light of her need to stop for red light at this particular intersection and the particular limitations associated with her standard transmission vehicle, she was travelling at a rate of speed no higher than 40 kilometres per hour.

[36] In considering the credibility of the defendant's exculpatory evidence in respect of this speed reading, I must consider the defendant's version of the events in the context of the evidence as a whole. I must instruct myself that my resolution of the issues in this case, does not constitute a credibility contest or involve a question of whose evidence I prefer (Ms. Abelarde's evidence or that of Constable Solecki). The test set out in Regina v. W.(D.) requires me to consider the defendant's exculpatory evidence in the context of the totality of the evidence. Upon analyzing the defendant's evidence in this fashion, I must ask myself whether the evidence is sufficiently credible to leave me in a state of reasonable doubt with respect to the defendant's guilt of the subject charge.

[37] The defendant wholly denies speeding at the material time. She honestly believes that she was not able to drive her motor vehicle at a rate of speed higher than 60 kilometres per hour, at the relevant time, due to the red traffic control signals she encountered at a number of intersections along Dundas Street, as well as a result of the slippery driving conditions at the time. While I accept the defendant's honest and genuine belief that at the material time, she did not drive her motor vehicle at a rate of speed in excess of 40 kilometres per hour, I do not find her evidence in this regard, considered in isolation, to be objectively reliable. Her testimony in this regard lacks detail and as such there is no confirmatory evidence to bolster the reliability of her assertion.

[38] On the other hand, when I weigh the defendant's evidence pertaining to the surrounding circumstances of the 105 kilometres per hour speed reading, in the context of Constable Solecki's testimony in that regard, I find the defendant's assertion that she was not operating her motor vehicle at a rate of speed in excess of 40 kilometres per hour in the vicinity of Prince Michael Drive, to be reasonably true. I am therefore left in a state of reasonable doubt relative to the allegation that the defendant was driving her motor vehicle at a rate of speed 105 kilometres per hour at the subject location or at any speed in excess of the 60 kilometres per hour speed limit, at that location.

[39] In reaching this conclusion, I have considered the defendant's exculpatory evidence that she stopped for a red light at the intersection of Prince Michael Drive and that it was therefore impossible for her to achieve a rate of speed of 105 kilometres per hour, from a standing start, immediately after the red light at the intersection had turned green. Her version of the events surrounding the 105 kilometres per hour speed reading appear to me to be plausible when they are considered in the context of Constable Solecki's evidence, and in particular the following factors:

1. that the subject speed reading was obtained from a significant distance – that of 628 metres, and in the darkness;

2. that the speed reading was taken at a time when a second unidentified vehicle was being driven in the centre lane, in front of the defendant's motor vehicle;

3. that while Constable Solecki was able to see the defendant's car travelling on Dundas Street immediately east of the intersection with Prince Michael Drive, in order to target the vehicle with his laser device, he was not able to see the traffic control signals at the said intersection. He was not, therefore, able to advise whether the traffic signal facing the defendant as she approached the said intersection from the west was red.

[40] The defendant maintains that at the material time, she was stopped at the intersection of Dundas Street and Prince Michael Drive for a red light. There is no evidence before me which contradicts this assertion. It is a matter of common sense that the defendant would not be able to reach a rate of speed in excess of 60 kilometres per hour, from a stationary position, over a short distance east of the said intersection. I accept the defendant's testimony that she had stopped for a red light at the intersection of Dundas Street and Prince Michael Drive, as being credible and that accordingly, she was unable to achieve a speed in excess of the 60 kilometres per hour speed limit at a point slightly east of the subject intersection.

[41] While I do not firmly believe the defendant's exculpatory evidence in respect of the 105 kilometre speed reading, I find that it is sufficiently credible to leave me in a state of reasonable doubt as to the defendant's guilt on the amended offence of speeding – 105 kilometres per hour in a posted 60 kilometres per hour zone.

(b) The two speed readings of 95 kilometres per hour from distances of 258.4 metres and 228.8 metres, respectively

[42] In analyzing the defendant's exculpatory testimony in respect of the circumstances surrounding the two locked-in speed readings of 95 kilometres per hour, obtained from the defendant's vehicle while it was travelling eastbound on Dundas Street, at locations immediately to the west of the intersection with Meadowridge Drive, in accordance with the W.(D.) principles, I find that I am not left in a state of reasonable doubt that the defendant's vehicle was travelling at a rate of speed of 95 kilometres per hour as it was approaching Meadowridge Drive.

[43] In reaching this decision, I have found Constable Solecki's evidence pertaining to his speed measurement of the defendant's vehicle at this time to be particularly compelling. He obtained the locked speed reading from the defendant's vehicle when it was driving towards his location from a relatively short distance. He was focussing on the defendant's vehicle at this time, noting that it was proceeding eastbound along Dundas Street, at a very high rate of speed. Additionally, the officer specifically remembered that at the time that he obtained these speed readings, that the second motor vehicle which had occupied the centre lane ahead of the defendant had moved out of the lane into the curb lane, leaving the defendant's vehicle as the sole vehicle in that lane.

[44] In my view Constable Solecki's testimony as to the actions and speed of the defendant's vehicle at a location just east of Meadowridge Drive at the material time, may be considered both credible (in the sense of being genuine) and reliable (in the sense of being accurate). Furthermore, as I have stated above, given the officer's testimony pertaining to his qualifications as a Lidar operator and as to his use of and testing of the speed measuring device, I am able to take judicial notice of the accuracy and trustworthiness of the speed readings obtained.

[45] In comparing the defendant's exculpatory evidence relative to the Meadowridge Drive speed readings, with the officer's testimony, I am of the view that Ms. Abelarde's testimony does not raise a reasonable doubt as to her guilt of the subject charge relative to the Meadowridge Drive location. In my view, Ms. Abelarde's evidence supporting her bare assertion that she was only travelling at a maximum rate of speed of 40 kilometres per hour as she approached Meadowridge Drive, is not confirmed by the totality of the evidence. Furthermore her exculpatory testimony pertaining to the two, 95 kilometres per hour speed readings, contain both internal and external inconsistencies.

[46] As stated above, during examination in chief Ms. Abelarde testified that she first observed the second eastbound vehicle, the Toyota Venza, when it was situated in the curb lane of Dundas Street to the east of the intersection with Meadowridge Drive. However, during cross-examination Ms. Abelarde advised that she first observed the Venza motor vehicle when it turned right off of Meadowridge Drive on to Dundas Street and continued to travel in an easterly direction past Ninth Line, approximately 20 seconds ahead of her vehicle on Dundas Street. This significant internal inconsistency affects the overall reliability of Ms. Abelarde's exculpatory evidence relative to the rate of speed of her motor vehicle as it was located "just west" of Meadowridge Drive.

[47] Finally, it is important to note that the defendant's assertion that she was travelling at a rate of speed of only 40 kilometres per hour while approaching Meadowridge Drive, was based upon her recollection that she was approaching a red traffic control signal at that intersection and that she eventually stopped at the intersection. The defendant's recollection in this regard is in direct conflict with Constable Solecki's testimony, with the aid of his investigative notes to refresh his memory, that the defendant's vehicle did not stop for a red light at Meadowridge Drive.

[48] In that regard it is noted that Constable Solecki continuously monitored the defendant's vehicle as it travelled in an easterly direction on Dundas Street from Prince Michael Drive to Meadowridge Drive. His direct evidence was that the defendant's vehicle did not stop at the westerly boundary of the Meadowridge Drive intersection for a red light, but rather approached the intersection and passed through it on a "stale green".

[49] This piece of evidence not only directly contradicts the defendant's evidence that at the relevant time, she slowed her vehicle and stopped it for a red light, but supports Officer Solecki's contention that the defendant's vehicle was speeding as it travelled along Dundas Street just west of Meadowridge Drive. Furthermore, the defendant's actions in travelling through a "stale green" traffic light supports the theory that the defendant was, in fact, operating her vehicle at a high rate of speed as it approached the Meadowridge Drive intersection.

[50] In summary, in considering the defendant's exculpatory evidence relative to the two speed readings of 95 kilometres per hour, in the context of the totality of the evidence, I find that I am not left in a state of reasonable doubt as to her guilt of the subject offence relative to a speed measurement of 95 kilometres per hour.

[51] As I have rejected Ms. Abelarde's testimony that, at the material time, she was driving her motor vehicle on Dundas Street near its intersection with Meadowridge Drive, at a rate of speed of only 40 kilometres per hour, I must now determine whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused on the subject speeding charge.

[52] In applying the third prong of the W.(D.) principles, I accept the testimony of Constable Solecki, including the speed readings obtained by him through the subject Lidar device, as being both credible and reliable. Accordingly, based upon the totality of the evidence in the proceeding, which I have accepted, I find that at the material time, the defendant drove her motor vehicle on Dundas Street at a rate of speed in excess of the posted speed limit of 60 kilometres per hour; specifically that of 95 kilometres per hour. The prosecution has succeeded in establishing all of the essential elements of the actus reus of the included offence of "Speeding – 95 kilometres per hour in a posted 60 kilometres per hour zone", contrary to section 128 of the Highway Traffic Act, to the standard of proof beyond a reasonable doubt.

THE DECISION

[53] The defendant, Grace A. Abelarde is found guilty of the included offence of Speeding – 95 kilometres per hour in a posted 60 kilometres per hour zone, contrary to section 128 of the Highway Traffic Act.

Released: May 15, 2018

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