Court File and Parties

Ontario Court of Justice

Date: 2019-06-11

Court File No.: Hamilton 4760 – 5203424B

Between:

City of Hamilton

— AND —

Yisroel M. Portowicz

Before: Justice of the Peace Kenneth W. Dechert

Heard on: April 24, 2018, August 16, 2018, November 22, 2018 and March 25, 2019

Reasons for Judgment released on: June 11, 2019

Provincial Offences Court – Hamilton, Ontario

Counsel

H. Chapple — for the prosecution

V. Manoukian — paralegal for the defendant Yisroel M. Portowicz

Statutes, Regulations and Rules Cited

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

Cases Cited

• Kirshen v. York (Regional Municipality), 2019 ONCJ 313
• Knabe v. Durham (Regional Municipality), 2017 ONCJ 35
• Regina v. Bland, [1974] O.J. No. 2139 (Ont. C.A.)
• Regina v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499
• Regina v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.)
• Regina v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5
• Regina v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788
• Regina v. Edwards, 2012 ONSC 3373, [2012] O.J. No. 2596 (Ont. S.C.J.)
• Regina v. Gray, [2012] A.J. No. 159 (Alta. C.A.)
• Regina v. Hull, [2006] O.J. No. 3177 (Ont. C.A.)
• Regina v. Lifchus, [1997] 3 S.C.R. 320
• Regina v. Morin, [1988] 2 S.C.R. 345
• Regina v. Morris, September 28, 1987 per Paris Prov. Ct. Judge, unreported
• Regina v. Nimchuk (1977), 33 C.C.C. (2d) 209 (Ont. C.A.)
• Regina v. S. (W.D.) (1994), 93 C.C.C. (3d) 1 (S.C.C.)
• Regina v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.)
• Regina v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639
• Regina v. W.(D.), [1991] 1 S.C.R. 742

Publications Cited

• Hutchison, Scott, Rose, David and Downes, Phil, The Law of Traffic Offences, Third Edition (2009, Thomson Reuters Canada Limited)
• Paciocco, Mr. Justice David and Stuesser, Professor Lee, The Law of Evidence, Seventh Edition (2015, Irwin Law Inc.)

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

INTRODUCTION

[1] Under Certificate of Offence no. 4760-5203424B, the defendant Yisroel M. Portowicz stands charged that he on May 22nd, 2016 at 7:03 a.m., at Queen Elizabeth Way (hereinafter referred to as "the Q.E.W.") in the City of Hamilton, committed the offence of "Speeding – 135 kilometres per hour in a 100 kilometres per hour zone, contrary to the Highway Traffic Act [R.S.O. 1990, c. H.8, as amended] section 128".

[2] The trial of this matter began before me on April 24th, 2018. It continued on August 16th, 2018, November 22nd, 2018 and March 25th, 2019, when it was completed. The proceeding was then adjourned to June 11th, 2019, for judgment.

[3] The prosecutor, the City of Hamilton, was represented by Ms. H. Chapple. The defendant was represented by paralegal Mr. V. Manoukian.

[4] During this trial the prosecution presented its case through the testimony of Provincial Constable Graham Williamson of the Ontario Provincial Police. The defendant testified on his own behalf.

[5] Constable Williamson stated that on May 22nd, 2016 at 7:03 a.m. he observed a mini-van being driven by the defendant on the Q.E.W., at a rate of speed well in excess of the posted speed limit of 100 kilometres per hour. The police officer measured the speed of the mini-van by activating the "lidar" - laser speed measuring instrument which he was using at that time. He determined that the motor vehicle was being driven at a rate of speed of 135 kilometres per hour at a range of 180 metres.

[6] The defendant denied driving his motor vehicle at a rate of speed in excess of 100 kilometres per hour. He asserted that at the material time he was driving at a rate of speed of approximately 90 kilometres per hour, based upon the speed indicated on his vehicle's speedometer. He advised that he needed to drive slowly at the time due to damage to his motor vehicle resulting from a collision with a deer, approximately three hours earlier. The defendant testified that following the collision he noticed that his vehicle would shake and make rattling noises when accelerated to speeds of between 90 and 95 kilometres per hour.

[7] Speeding is a quasi-criminal offence. As stated by Karakatsanis J. in Regina v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639 at paragraph 21, the trier of fact must determine whether, "on the whole of the evidence", she/he or it "is left with a reasonable doubt about the guilt of the accused". In making that determination as the trier of fact, I must assess the credibility of the witnesses and attempt to resolve the conflicting versions of the events as they relate to the essential elements of the offence.

[8] The defendant is presumed innocent of the subject offence until proven guilty. The prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt. That persuasive burden never shifts to the defendant. Accordingly, I must now determine whether or not the prosecution has proven the guilt of the defendant on this charge, beyond a reasonable doubt.

THE EVIDENCE

(i) The Testimony of Provincial Constable Graham Williamson

[9] Constable Williamson testified in chief on both April 24th, 2018 and August 16th, 2018. He was cross-examined on August 16th, 2018. He was permitted to testify with the assistance of his investigative notes for purposes of refreshing his existing memory of the relevant events, under the doctrine of present memory revived.

[10] The officer testified that on Sunday, May 22nd, 2016, he was undertaking patrol duties on the Q.E.W. in the City of Hamilton, operating a fully-marked police cruiser. He noted that the Q.E.W. is a "highway" as defined by the Highway Traffic Act. He indicated that on that day, he was using a police-issued lidar - laser speed-measuring device, known as a "Laser Alley", for purposes of conducting vehicular speed enforcement.

[11] Constable Williamson testified that he was a trained and qualified lidar and radar operator and instructor and had been since 1997. He indicated that at 6:20 a.m. on the subject date, he tested the said lidar instrument "in accordance with manufacturer's instructions" and found it to be "working correctly".

[12] The officer indicated that he began to undertake speed enforcement activities on the Q.E.W. westbound, between Fifty Road to the east and Glover Road to the west, sometime after he had completed the testing of the lidar instrument. He testified that at the relevant time he was parked on the right shoulder of the said highway, just west of its intersection with Glover Road. He advised that he was parked in a perpendicular position such that he was facing in a southerly direction. He was therefore able to make observations of the speed of westbound motor vehicles approaching his location, immediately to his left.

[13] Constable Williamson stated that there were three, "straight" westbound lanes at this location and that the posted speed limit was 100 kilometres per hour. He went on to note that the weather was clear and sunny and the traffic on the highway at the said location and at the relevant time, was "very light".

[14] The officer testified that at 7:03 a.m. he noticed a westbound motor vehicle travelling in lane number 2 (the middle lane). He advised that it appeared to be moving at an estimated rate of speed of 130 kilometres per hour or more. Upon making this observation, he activated the lidar instrument through the open, driver's side window of his police cruiser by aiming its red sighting dot on the front grill area of the targeted vehicle and obtained a speed reading of 133 kilometres per hour. He then took three additional speed measurements of the vehicle within two to three seconds of the first measurement, employing the same lidar-activation procedures. The second measurement indicated a speed of 134 kilometres per hour, the third measurement indicated a speed of 136 kilometres per hour and the fourth measurement indicated a speed of 135 kilometres per hour at a distance of 180 metres.

[15] Constable Williamson testified that upon obtaining the fourth measurement, he released the activation-trigger on the lidar so as to "lock-in" the speed and range readings. He stated that since he had aimed the sighting dot at the front grill of the vehicle and had ensured that there were no other vehicles in the line of the laser beam and that there were no "vehicular obstructions" to his "own sight of that vehicle", he was confident that the readings shown and "locked-in" on the device were accurate.

[16] Constable Williamson testified that once he had locked-in the said readings, he placed his police cruiser in motion, turned on his emergency roof lights and followed the targeted vehicle. He stopped the vehicle about one to two minutes after the time that he first observed it, at a location on the right shoulder of the highway "no more than one-half of a kilometre" west of where he had been parked. Furthermore he stated that he never lost sight of the vehicle from the time that he "observed the offence occurring" until the time that he stopped the vehicle.

[17] Constable Williamson testified that upon stopping the said motor vehicle, which he described as a Hyundai Santa Fe, he approached it on its passenger side, spoke to the driver and obtained his driver's licence. The officer compared the physical appearance of the driver to the photograph on the driver's licence and was satisfied that the driver was the defendant, Yisroel Portowicz, as indicated on the licence. He then issued a provincial offence notice for the subject offence to Mr. Portowicz.

[18] Constable Williamson testified that he re-tested the subject lidar device later that day, at 4:20 p.m., in accordance with manufacturer's instructions. Based upon the results of the re-test, he was satisfied that the device remained in proper working order.

[19] During cross-examination, Constable Williamson disagreed with the suggestion made by the defendant's representative, that when he clocked the defendant's vehicle, it was travelling in the "curb lane". Furthermore, in answer to the representative's suggestion that there were other vehicles travelling in lanes 2 and 3 which were passing the defendant's vehicle in the curb lane "just prior" to the time of his observations of that vehicle at 7:03 a.m., Constable Williamson stated that he was not able to agree or disagree with that proposition "because he didn't take note". He maintained that the vehicle which he observed at the relevant time was travelling in the middle lane and that he "didn't note, didn't take note or even concentrate on any other vehicle".

[20] In answer to the representative's question as to what lane he was in as he was following the defendant's vehicle to pull it over, Constable Williamson stated "I can't recall, whatever lane he would have been in at that point". The officer was also unable to recall whether the defendant's vehicle changed lanes from the time that he first observed it until he stopped it.

[21] The defendant's representative then posed the following further question: "So it is possible he [the defendant] was still in the curb lane? He didn't make any lane changes?". Constable Williamson responded to this query as follows:

I don't know what lane he was in from the moment that I took that speed measurement and kept my eye on him. Whatever lane changes were made after that I didn't know.

[22] Constable Williamson testified that he remembered the events surrounding this particular traffic stop for speeding very well. He explained that his enhanced recollection of the matter was due to two unusual circumstances which came to light during the course of his investigation. He explained these unusual factors as follows:

Two things. One is the observation, before the event even took place, of the vehicle, that is when it was stopped on the right side of the roadway. And the other was the information relating to the impact of the deer. There was deer impact on the right front of the vehicle. I had conversation with Mr. Portowicz regarding that….

[23] Constable Williamson stated that when he stopped Mr. Portowicz following the alleged speeding violation, he noticed the existence of damage to the right, front area of his vehicle. He recorded the damage in his notebook as "major deer damage to the right front". Upon discussing the cause of the damage with Mr. Portowicz at the scene of the traffic stop, the officer learned that Mr. Portowicz had struck a deer earlier that same morning, while travelling in the state of New York.

[24] Furthermore during cross-examination Constable Williamson testified that that prior to the time of the alleged speeding event, he noticed the defendant's vehicle stopped on the right shoulder of the westbound lanes of the Q.E.W., approximately 750 to 800 metres east of its intersection with Glover Road. He believed that he made this observation sometime between 6:15 a.m. and 6:45 a.m.

[25] In describing his actions in discovering the defendant's mini-van stopped at this time, the officer stated as follows:

Sometime prior to my set-up for laser speed enforcement, the van was stopped on the right side of the roadway on the right shoulder near a very tall wall. I pulled up on the left side of the vehicle, noticed that the driver was in the typical position of rest, he was somewhat relaxed and I just didn't feel that it was necessary to arouse him. If it was slumber, more power to the driver to rest rather than to drive sleepy, so I saw the vehicle, didn't take note of any damage to it at the time and then carried on.

(ii) The Testimony of Mr. Yisroel Portowicz

[26] Mr. Portowicz testified in chief and in cross-examination on March 25th, 2019.

[27] He testified that he had a "perfect" memory of the events of May 22nd, 2016 leading up to the issuance of the subject speeding charge. In explaining why his memory was so clear, the defendant stated that at approximately 4:00 a.m. on that date, while driving his Hyundai Santa Fe motor vehicle in western New York, he collided with a deer. He described this event as a "very traumatizing experience" because this was his first motor vehicle accident and because his wife and their three children were in the vehicle at the time. He was of the view that these factors enhanced his memory of that event and of the events which transpired later that morning, including the speeding allegation.

[28] Mr. Portowicz testified that the front, right side of his vehicle, was significantly damaged as a result of the deer-collision, remarking that that portion of the vehicle "was totally ruined". He identified a digital photograph of the damaged areas of his motor vehicle, which he took after the collision. This photograph, which was entered as exhibit #1, depicts the damage to the front, right corner of the vehicle including a displaced piece of metal, which appears to be severed from the bumper.

[29] Following the brief investigation of the accident by the local police, Mr. Portowicz continued to travel towards the Canadian border. He advised that he arrived at the Canadian Border at approximately 5:30 a.m.

[30] Mr. Portowicz testified that during the period of time that he was travelling in New York after the deer-collision, he began to experience difficulties with his motor vehicle when he accelerated it to speeds of between 90 and 95 kilometres per hour. He noticed that when the vehicle was being operated at those rates of speed, it would start to shake and rattle and make "all these funny noises". He advised that once he would experience these abnormal symptoms, he would slow his vehicle down to 90 kilometres per hour or less in order to diminish the symptoms.

[31] Mr. Portowicz advised that once he entered Canada, he travelled on the Q.E.W. westbound, en route to his residence in Toronto. He advised that sometime between 6:00 a.m. and 6:30 a.m., when he reached the vicinity of the City of Hamilton, he pulled his vehicle over onto the right shoulder of the highway in order to take a nap. He stated that he remained parked at that location until approximately 7:00 a.m., when he woke up and re-entered the Q.E.W., turning into its right lane.

[32] Mr. Portowicz described the flow of traffic on the Q.E.W. at this time, as "regular", noting that there were cars travelling in front of him and in the lane beside him which were passing him. He testified that "under two minutes" after he had entered the right lane of the highway, he was stopped by the police officer for speeding. He estimated the distance between the point where he had re-entered the highway and the point where he was pulled over by the officer, as one or two kilometres.

[33] Mr. Portowicz stated that throughout the subject morning, prior to being stopped by the police officer, he was travelling on the Q.E.W. He stated that during this time, he was "very sure" that he was driving at a rate of speed of approximately 90 kilometres per hour in the 100 kilometres per hour speed zone. He acknowledged that he did not see the police officer until the time that he was stopped by him from behind.

[34] Mr. Portowicz testified that he knew that he was driving at a rate of speed of approximately 90 kilometres per hour, both before and after the period of his "nap", because he was "constantly" looking at his speedometer. He noted that he would slow down as soon as he would hear "shaking and rattling" sounds coming from the front of his vehicle.

[35] He explained that given the apparent mechanical difficulties with his motor vehicle, he decided to travel slowly utilizing the right-hand lane of the highway. He wanted to remain on the Q.E.W. because, in his view, it was the safest route to travel to his home.

THE ISSUES

[36] The ultimate issue in this proceeding is whether, based on the totality of the evidence, the prosecution has proven the guilt of the defendant, beyond a reasonable doubt. As this is a case where credibility of the evidence is an important consideration, I am obliged to apply the principles enunciated by the majority of the Supreme Court of Canada in Regina v. W.(D.), [1991] 1 S.C.R. 742, hereinafter referred to as "W.(D.)".

[37] In this proceeding, there is conflicting evidence before me relative to the circumstances of the alleged offence. Constable Williamson testified that at the material time he clocked the speed of the defendant's motor vehicle by means of a laser device, as being 135 kilometres per hour. On the other hand, the defendant denied driving at a rate of speed in excess of 100 kilometres per hour, asserting that based upon his constant observations of his speedometer at that time he was travelling at a rate of speed of approximately 90 kilometres per hour.

[38] I must, therefore, undertake an assessment of the credibility of the evidence. In doing so I must remind myself that the determination of the defendant's guilt on the subject charge must not be based upon a credibility contest between the prosecution and defence witnesses. Furthermore, I must not conclude that the prosecution has met its burden to prove the guilt of the defendant beyond a reasonable doubt simply because I might prefer the evidence of Constable Williamson to that of Mr. Portowicz.

[39] The offence of "speeding" is an absolute liability offence. Therefore, in order to sustain a conviction against the defendant, the prosecution need only prove the elements of the actus reus of the offence, beyond a reasonable doubt. The essential elements of the offence of speeding are as stated by Felix J. in Knabe v. Durham (Regional Municipality), 2017 ONCJ 35, the date of the offence, the jurisdiction where the offence was committed, the posted speed limit, the identification of the driver and the rate of speed of the moving motor vehicle.

[40] Based upon the undisputed evidence before me, I am satisfied that the following facts have been established beyond a reasonable doubt:

(i) on the 22nd day of May, 2016 at 7:03 a.m., Yisroel Portowicz was driving his Hyundai Santa Fe motor vehicle on the Q.E.W. westbound, near its intersection with Glover Road, in the City of Hamilton;

(ii) the Q.E.W. is a "highway" as defined by the Highway Traffic Act, and;

(iii) the posted speed limit on the Q.E.W. westbound at the relevant location is 100 kilometres per hour.

Accordingly, I am satisfied that the elements of the date of the offence, the jurisdiction where the offence was committed, the posted speed limit and the identification of Yisroel Portowicz as the driver of the motor vehicle which was stopped by Constable Williamson, are not in issue. The only element of the actus reus of the offence remaining to be determined is the rate of speed of Mr. Portowicz's vehicle at the material time.

[41] The prosecution submits that based on the totality of the evidence in this proceeding, it has proven, beyond a reasonable doubt, that the defendant was operating his motor vehicle at a rate of speed in excess of the speed limit; that of 135 kilometres per hour. In support of this submission the prosecutor argues that I should accept the evidence of Constable Williamson because his lay opinion as to the excessive speed of the vehicle was confirmed by the measurement obtained through reliable laser technology. Additionally, she contends that since the defendant's exculpatory evidence is imprecise, it is unreliable and should be rejected.

[42] On the other hand, the defence submits that the prosecution has failed to prove the allegation that the defendant was operating his motor vehicle at a rate of speed in excess of the posted speed limit, beyond a reasonable doubt. The defendant's representative argues that when the defendant's exculpatory evidence is considered in the context of the evidence as a whole, I should be left in a state of reasonable doubt as to the defendant's guilt. The representative submits that the subject charge should be dismissed.

[43] In assessing the credibility of both the witnesses and the evidence in this proceeding in accordance with the principles set out in W.(D.), I must instruct myself that the rule of reasonable doubt applies to that issue.

[44] In their textbook titled The Law of Evidence, Seventh Edition (2015, Irwin Law Inc.) at pages 35 and 36, Mr. Justice David Paciocco and Professor Lee Stuesser set out the legal theory pertaining to the concept of the believability of the evidence (sometimes referred to as the credibility of evidence). In that regard they note that "when deciding whether evidence is believable, legal theory draws a helpful distinction between 'credibility' and 'reliability'". They explain the theory as follows:

'Credibility' is about the honesty of the witness. Evidence showing that a witness has been corrupted, has a motive to mislead, or has discreditable character will be relevant to credibility. For example, evidence that the witness identifying the robber was an accomplice to the robbery who has made a deal with the police could cause a trier of fact to give the testimony little weight.

'Reliability' is the term used to describe the accuracy of evidence. It can relate to the accuracy of a scientific process, but when applied to witnesses, reliability captures the kinds of things that can cause even an honest witness to provide inaccurate information. The reliability of witness testimony can be affected, for example by (1) inaccurate observations, (2) memory problems, or (3) a failure by the witness to communicate observations accurately. Our witness may, for example, have been too far from the scene to conclude dependably that it was the tattooed man who held the gun, or he may not recall sufficient details of the event to instill confidence that he is right about this. Although credible, his evidence will be given little weight because it is unreliable.

It is appropriate to apply these principles when analyzing the credibility of the disparate versions of events in this case and the weight to be allocated to those versions.

[45] Constable Williamson testified that he measured the speed of the defendant's vehicle at the material time through the use of a lidar - laser speed measuring device. As a trained and qualified lidar operator, the officer properly used the device to capture the alleged speed of Mr. Portowicz's vehicle, in excess of the posted speed limit. Furthermore, the officer tested the lidar device according to manufacturer's instructions both prior to and after its use and found the device to be working correctly. 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 of the measurement of the speed of the defendant's vehicle at the material time. However, as stated by Kenkel J. in his recent decision in Kirshen v. York (Regional Municipality), 2019 ONCJ 313 at paragraph 9, "…a prima facie case is always subject to consideration of evidence that may leave a reasonable doubt".

[46] In its decision in Regina v. Bland, [1974] O.J. No. 2139, the Ontario Court of Appeal held that evidence as to the speed of a motor vehicle measured by its speedometer constitutes "prima facie evidence" of the speed of the vehicle. In that regard at paragraph 16 therein, Arnup J.A. wrote, in part, as follows:

…I would hold that where evidence is given that over a measured level distance the speedometer recorded steadily at 95 m.p.h., this is prima facie evidence that the offence of driving at 90 m.p.h. was committed, in the absence of some evidence, elicited either on cross-examination or by defence witnesses, which would suggest that the speedometer on the police vehicle was inaccurate.

[47] In their textbook titled The Law of Traffic Offences, Third Edition (2009 – Thomson Reuters Canada Limited) at page 142, authors Scott Hutchison, David Rose (now Mr. Justice David Rose) and Phil Downes (now Mr. Justice Phil Downes) made the following comments about the use of speedometer readings by a defendant in a speeding prosecution:

Of course, there is no reason why the defence cannot put forward evidence of a speedometer reading in order to raise a reasonable doubt. For example, where the prosecution has elicited evidence that a defendant was clocked by radar travelling at an excessive rate of speed, the defendant may testify that he was watching his speedometer and that it indicated that he was travelling within the speed limit. Such evidence, if not disbelieved, should be sufficient to have the charge dismissed, notwithstanding that there was no evidence lead as to the accuracy of the defendant's speedometer: R. v. Morris [an unreported decision of Paris Prov. Ct. Judge, rendered on September 28, 1987].

[48] Accordingly, Mr. Portowicz's testimony that he knew that he was not speeding because his speedometer indicated a rate of speed of approximately 90 kilometres per hour could, if believed, raise a reasonable doubt as to his guilt, despite the absence of evidence relative to the accuracy of the speedometer.

THE W.(D.) PRINCIPLES

[49] In his majority decision in W.(D.), supra, at paragraphs 26 to 28, Cory J. explained how the issue of credibility should be assessed in a criminal case, as follows:

…It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative, namely, that the jury, without believing the accused, after considering the accused's evidence in the context as a whole, may still have a reasonable doubt as to his guilt.

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 must 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 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. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in [R. v. Morin [, [1988] 2 S.C.R. 345]](https://www.canlii.org/en/ca/scc/doc/1988/1988canlii8/1988canlii8.html)… .

Ideally, appropriate instructions on the issue of credibility should be given, not only on the main charge, but on any re-charge. 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 of the guilt of the accused.

[50] The proposition that triers of fact have a reasonable doubt as to the guilt of an accused if they find that his/her exculpatory evidence "might reasonably be true", was endorsed by the Supreme Court of Canada in Regina v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499.

[51] In Regina v. Hull, [2006] O.J. No. 3177 at paragraph 5, a panel of the Ontario Court of Appeal (Simmons, Armstrong and Rouleau JJ.A.) defined the essence of the W.(D.) instruction, as follows:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. …

[52] In her majority decision in Regina v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 at paragraph 8, Abella J. stated that the purpose of the W.(D.) principles "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 evidence and the Crown's evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused's guilt".

[53] Furthermore in her unanimous decision in Regina v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at paragraph 23, Charron J. described the "substance" of the W.(D.) instruction, in the following terms:

…In a case which turns on credibility,… the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. …

[54] In his decision in Regina v. Edwards, 2012 ONSC 3373, [2012] O.J. No. 2596 (Ont. S.C.J.) at paragraph 20, Code J. explained the meaning of the second branch of the W.(D.) instruction as follows:

…The middle ground in W.(D.) is an 'alternative' to complete belief or complete rejection and arises where a trier cannot 'resolve the conflicting evidence' and cannot find 'exactly where the truth of the matter lay' as Morden J.A. and Martin J.A. put it in [Challice [Regina v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.)]] and in [Nimchuk [Regina v. Nimchuk (1977), 33 C.C.C. (2d) 209 (Ont. C.A.)]]. It refers to a state of indecision or uncertainty where the trier of fact is not 'able to select one version in preference to the other', as Cory J. put it in [W.D.S. [Regina v. S. (W.D.) (1994), 93 C.C.C. (3d) 1 (S.C.C.)]]. …

[55] In his judgment in Regina v. Gray, [2012] A.J. No. 159 (Alta. C.A.) at paragraph 42, P.W.L. Martin J.A. stated that the objective of the W.(D.) instruction was to inform triers of fact of the following principles:

(i) The burden of proof is on the Crown to establish the accused's guilt beyond a reasonable doubt, and that burden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown.

(ii) In that context, if the accused's evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit.

(iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true. The inability to decide between exculpatory evidence and other evidence that incriminates the accused will usually indicate that the jury has a reasonable doubt, which again must work to the benefit of the accused.

(iv) In the event the accused's evidence (or where applicable, other exculpatory evidence) is completely disbelieved such that it does not raise a reasonable doubt, the jury may not convict unless it is satisfied that the Crown has proven the accused's guilt beyond a reasonable doubt by other evidence that the jury does accept.

[56] Finally, the phrase "reasonable doubt" was defined by Cory J. in his decision in Regina v. Lifchus, [1997] 3 S.C.R. 320 at paragraph 39, 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.

ANALYSIS

Issue: Whether or not Mr. Portowicz's exculpatory evidence supporting his position that he was not, at the material time, driving his motor vehicle on the Q.E.W. at a rate of speed in excess of 100 kilometres per hour, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt?

[57] This issue encompasses the substance of the W.(D.) principles. In order to resolve the issue, I am obliged to assess both the credibility and reliability of the testimonial evidence in this proceeding. In doing so, I must remind myself of two fundamental precepts: (i) that I am not engaged in a credibility contest and (ii) that the rule of reasonable doubt applies to the issue of the believability (credibility and reliability) of the totality of the evidence.

The Believability of the Evidence

(a) Credibility

[58] As stated above, legal theory relates the concept of "credibility" to the honesty of a witness' evidence and the concept of "reliability" to the accuracy of that evidence.

[59] In this proceeding, there is no evidence before me which degrades the integrity of the testimony of either Constable Williamson or Mr. Portowicz. It has not been shown that either witness has been corrupted or has a motive to mislead. I find the testimony of both witnesses to be genuine and I therefore attribute significant weight to the truthfulness of their respective recollection of the relevant events.

(b) Reliability

[60] During his testimony, Constable Williamson testified from his memory with the aid of his investigative notes made contemporaneously with the time of the events recorded. His testimony was based upon his observations of a motor vehicle travelling in the middle lane of the Q.E.W., which he made from his stationary and unobstructed vantage point on the right shoulder of the highway. He measured the rate of speed of that vehicle through the proper use of a laser device, which was in proper working order, from that optimal position. It is apparent that Constable Williamson had adequate time and opportunity to observe the location of the targeted vehicle at 7:03 a.m. and to measure its rate of speed. These factors enhance the accuracy of the officer's testimony relative to the rate of speed of the targeted motor vehicle at the material time.

[61] On the other hand, Constable Williamson's lack of memory in two crucial areas significantly reduces the degree of weight that I am able to accord to the reliability of his opinion that at the material time, Mr. Portowicz was operating his motor vehicle in the middle lane of the highway at a rate of speed of 135 kilometres per hour.

[62] Firstly, the officer's testimony lacked detail pertaining to the circumstances surrounding the alleged offence. In particular, while the officer maintained that the defendant's vehicle was travelling in the middle lane at the material time, he had no memory of any other vehicles travelling in lanes 2 or 3, stating only that he did not note, take note or even concentrate on any other vehicle. The officer's inability to recall whether or not there were other vehicles in the vicinity of the targeted vehicle detracts from the reliability of his belief that the vehicle he eventually stopped, being driven by the defendant, was the same vehicle that he had clocked approximately one to two minutes earlier.

[63] Secondly, Constable Williamson was unable to recall what lane the defendant's vehicle was travelling in at the time that he was following him in order to effect the traffic stop. He had no memory as to whether the defendant's vehicle changed lanes from the time that he first observed it travelling in the middle lane until the time that he stopped it on the right shoulder of the highway. In clarifying his testimony in this regard, Constable Williamson stated that he did not know what lane the defendant was in after he took the speed-measurement and "kept his eye" on him, noting that he did not know if the defendant made any lane changes between the time of the measurement and the time of the traffic stop.

[64] The lack of precision of the officer's testimony relative to the actions of the targeted vehicle subsequent to the time of the speed measurement but prior to the traffic stop, is a factor which diminishes the accuracy of his assertion that the targeted vehicle was the same vehicle that he subsequently stopped. Furthermore, the officer's testimony during cross-examination acknowledging he was not able to recall the specific driving actions of the defendant's vehicle relative to its lane of travel, from the time that he took the speed-measurement at 7:03 a.m. until the time that he stopped it at about 7:05 a.m., is inconsistent with his testimony-in-chief that from the time that he "observed the offence occurring" to the time that he effected the traffic stop, "not once" did he lose sight of the defendant's vehicle.

[65] It is apparent that Constable Williamson lacks a clear memory as to the circumstances of the traffic stop following the time of the speed-measurement. He was unable to advise as to the lane the defendant's vehicle was travelling in as he was following it for a distance of approximately one-half of a kilometre prior to stopping it. I am, therefore, only able to assign a moderate degree of weight to his opinion that the vehicle that he clocked at a rate of speed of 135 kilometres per hour while it travelled in the middle lane of the highway, was the same vehicle that he eventually stopped.

[66] For these reasons, I do not completely accept the accuracy of the prosecution's evidence probative of the defendant's guilt respecting the subject charge.

[67] The defendant testified from his memory which he described as being "perfect", due to the trauma that he experienced earlier that same morning when he struck a deer. He was unwavering in his assertion that he was not operating his vehicle at a rate of speed greater than 90 kilometres per hour during the brief period of time between his re-entry on to the highway at approximately 7:00 a.m. and the traffic stop, approximately two minutes later.

[68] Mr. Portowicz stated that he was very sure that he was travelling at approximately 90 kilometres per hour at the material time, because he was constantly watching his speedometer to monitor his speed. He advised that he was diligent in his efforts to regularly maintain a rate of speed of 90 kilometres per hour or less because of his earlier experience that his vehicle would shake and rattle when accelerated to rates of speed of between 90 and 95 kilometres per hour. He indicated that at the relevant time he consciously limited his speed to 90 kilometres per hour in order to avoid repetition of these unusual symptoms, apparently related to the damage caused by the deer-collision.

[69] In my view, Mr. Portowicz testified in a direct and forthright manner. His testimony was internally consistent and the strength of his opinion that he was not speeding at the material time, was not weakened by the prosecutor's intense cross-examination. Furthermore his testimony relative to the damage to his vehicle and the circumstances of his nap on the shoulder of the highway, was confirmed by Constable Williamson.

[70] Mr. Portowicz seemed to have a clear memory of his driving activities during the short period of time between the end of his nap-period and the time that he was pulled over by the police officer. He recalled entering the right lane and remaining in that lane until he was pulled over from behind. He described the traffic in that one to two kilometre stretch of highway as being "regular", noting the presence of vehicles in front of him in the right lane and in the lane beside him, which were passing him.

[71] On the other hand, while the defendant's testimony was replete with details of the circumstances on the highway at the material time, he was unable to specifically advise as to when he looked at his speedometer to determine his speed. For example, the defendant did not provide any evidence as to his rate of speed at 7:03 a.m. or whether or not he had even looked at his speedometer at that specific time.

[72] Furthermore, the defendant's testimony as to his rate of speed at the material time is imprecise. It is based upon his general recollection that throughout the subject morning he maintained a rate of speed of approximately 90 kilometres per hour because of his discovery, subsequent to the time of the deer-collision that his vehicle would perform abnormally at rates of speed greater than 90 kilometres per hour. While he stated that both before and after the time of his nap he would constantly look at his speedometer to make sure that he was steadily travelling at approximately 90 kilometres per hour, he was not able to advise as to the number of times that he referenced his speedometer during the period of time between his re-entry on to the highway and the time that he was stopped.

[73] In light of the imprecision of the defendant's testimony as to his speed at the material time, I cannot assign substantial weight to its reliability. Accordingly I am not able to completely believe his evidence denying culpability for the speeding charge.

[74] On the other hand, when I weigh his exculpatory evidence in the context of the totality of the evidence, including the identified frailties in the prosecution evidence, I cannot completely reject it. In fact I am of the view that it might reasonably be true. I therefore find the defendant's testimony to be sufficiently reliable to leave me in a state of reasonable doubt as to his guilt.

[75] During his testimony, the defendant advised that at the relevant time he was concerned as to how the damage to his vehicle might affect its safe operation. In light of those concerns and the evidence relative to the severity of the damage to the vehicle, it is logical that the defendant would avoid exacerbating the abnormal symptoms apparently associated with the damage to his vehicle, by driving at rates of speed which would trigger those symptoms.

[76] The defendant's testimony that he was constantly monitoring his speedometer is both understandable and reasonable in the circumstances. His assertion that he was at the material time, travelling at a rate of speed of approximately 90 kilometres per hour due to his ongoing concerns that the operational dependability of his vehicle might be compromised if he were to operate his vehicle at rates of speed in excess of that speed, is certainly plausible.

[77] As indicated above I have not been able to resolve the conflicting evidence in this proceeding as to whether the defendant was actually driving his motor vehicle at a rate of speed in excess of 100 kilometres per hour. However, this trial is not a credibility contest between the prosecution and defence evidence and the verdict must not be based on a choice between the prosecution and defence evidence. As stated by Madam Justice Abella in Regina v. C.L.Y., supra, I must determine whether, based upon the whole of the evidence, I am left with a reasonable doubt as to the guilt of the defendant.

[78] In conclusion, I find that Mr. Portowicz's exculpatory evidence, considered in the context of the evidence as a whole, including the moderately unreliable prosecution evidence identifying his vehicle as the offending vehicle, raises a reasonable doubt as to his guilt of the subject charge.

THE DECISION

[79] The totality of the evidence proffered during this proceeding fails to establish beyond a reasonable doubt, that Mr. Portowicz was driving his motor vehicle on the Q.E.W. at a rate of speed in excess of the 100 kilometres per hour speed limit. Mr. Portowicz's assertion, based upon his observations of his vehicle's speedometer at or about the material time, that he was travelling at a rate of speed of approximately 90 kilometres per hour, is, when considered in conjunction with the circumstances immediately preceding the traffic stop, sufficiently reliable to raise a reasonable doubt as to the prima facie accuracy of the rate of speed measured by the subject laser device.

[80] The prosecution has failed to meet its burden to prove all of the essential elements of the actus reus of the subject speeding charge, beyond a reasonable doubt. The defendant is, therefore, found not guilty and the charge is dismissed.

June 11, 2019

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