ONTARIO COURT OF JUSTICE

CITATION: R. v. Amir-Mohammad, 2019 ONCJ 45

DATE: January 29, 2019

BETWEEN:

Regina

— AND —

Sallay Amir-Mohammad

Before Justice of the Peace S. Mankovsky

Heard on September 6, 2018 and January 8, 2019

Reasons for Judgment released on January 29, 2019

T. Mancheva ............................................................................................................ Prosecutor

G. Faulkner ......................................... Agent for the defendant Sallay Amir-Mohammad

Justice of the Peace S. Mankovsky

[1] This matter appeared before me on September 6, 2018. It was adjourned to January 8, 2019 for judgment. As the transcript was received on January 7, 2019, the matter was adjourned to January 29, 2019 for judgment.

The Charges

[2] Mr. Sallay Amir-Mohammad is charged with the offence of speeding 97 kilometres an hour in a 60 kilometre an hour zone contrary to Section 128 of the Highway Traffic Act, R.S.O., 1990, c. H.8.

[3] Speeding is an absolute liability offence.

Evidence for the Prosecution

[4] Officer Richard Krawczyk of the Toronto Police Service testified that on June 18, 2017 at approximately 4:20 p.m. he was standing on the roadside on the North side of Dixon Road at 900 Dixon Road for the purpose of enforcing the posted speed limit of 60 kilometres per hour. Prior to setting up his equipment he travelled on Dixon Road westbound toward his intended location and located a sign about 336 metres from it that he stated was properly posted and clearly visible.

[5] Officer Krawczyk indicated that he was operating a laser device capable of measuring the speed of moving motor vehicles. He was trained and qualified to operate the device. He tested it at the beginning of his shift, and again at the end according to the manufacturer’s specifications and determined that it was in proper working order. This particular device was mounted on a tripod. From his position he monitored traffic travelling westbound toward his location.

[6] He observed a white motor vehicle travelling westbound in the centre lane of Dixon Road toward his location behind one motor vehicle that was about 100 to 125 metres ahead of it. He observed that the white motor vehicle, being the second vehicle, appeared to be travelling at a speed higher than the 60 kilometre limit permitted in the area. He targeted the white motor vehicle, aimed and activated the laser device. He obtained a speed reading of 97 kilometres per hour at a distance of 215.1 metres. He signalled the driver of that vehicle to stop. The driver pulled the vehicle into the driveway at 900 Dixon Road where the officer was situated.

[7] On demand, the driver provided his valid Ontario Driver’s licence with a digitized photograph, ownership and proof of insurance. The Officer was satisfied with the driver’s identification, and charged the driver, Mr. Sallay Amir-Mohammad, with speeding – 97 kilometres per hour in a 60 kilometre per hour zone.

Evidence for the Defence

[8] In cross-examination by Mr. Faulkner, Officer Krawczyk testified that he was using a LaserTech UltraLyte LRB LTI 2020 for which he had been trained and which he was qualified to operate. He had been issued a card that listed the three devices that he was qualified to operate in 2011: the LTI Marksman, the LTI UltraLyte and the Laser Atlanta. He testified that he had been trained and was qualified to operate an additional device, the B3, and he had received a specific card listing that device.

[9] Officer Krawczyk testified that although he had been trained on other devices, he “never used anything other than the UltraLyte since that time”.

[10] Further, in continuing cross examination, Officer Krawczyk stated that he is “only familiar with that one”, that is, with the UltraLyte LRB LTI 2020. He went on to say: “I don’t know if UltraLyte puts out any other laser devices. The laser device that I was trained on is the laser device that I was using. It’s a laser device that I have listed in my notes.”

[11] Mr. Faulkner presented a January 2008 letter signed by Eric A. Miller, apparently the President and COO of Laser Technologies Institute (LTI) at that time, that was attached to the manual for the UltraLyte LRB provided to him in disclosure. According to the letter, LTI manufactures a number of models of speed measuring devices under the UltraLyte brand.

[12] Mr. Faulkner went on to submit that while the core system is the same for the different UltraLyte models, according to the letter, there are various options with the result that they may carry out different functions and accomplish different speed and distance measurement results. While the Officer testified that he was trained and qualified to use the apparatus he used to measure the defendant’s speed, and the distance from his position, the specific UltraLyte model is not indicated on what Mr. Faulkner referred to as the “training certificate.”

[13] Officer Krawczyk was consistent in response to further inquiry by Mr. Faulkner that the device he was trained on was the device he was using that day, and the device listed in his book. He agreed that the document he was given by the Toronto Police Service did not specify the model he used the day he laid the speeding charge.

[14] Officer Krawczyk testified that he tested the device on two occasions in the parking lot of 23 Division according to manufacturer’s specifications that he had learned during his training. He tested the device at 1:52 p.m. and at 7:11 p.m.

Summation by the Prosecution

[15] Ms. Mancheva submitted that the prosecution witness had given clear, concise evidence of the events of the day when he laid the charge. The only issue identified through cross-examination by Mr. Faulkner was the certification provided to the officer that did not name the specific UltraLyte model on which he was trained. As the letter from the manufacturer outlined, there are a number of models of UltraLyte devices. The Officer was clear in his testimony that he was trained on the device he used on that day, and that the device was working according to the manufacturer’s specification. With no evidence to the contrary from the defence, the Court should convict the defendant of the offence.

Summation by the Defence

[16] Mr. Faulkner submitted that the officer gave very clear and detailed evidence on his setup, his purpose, and his observations on the date he laid the charge. He testified that he was using a laser device capable of accurately measuring the speed of a moving motor vehicle. He said he was a qualified operator, and continued to outline the steps that led him to lay the charge of speeding.

[17] Mr. Faulkner continued that he had asked the officer how it was that he came to be qualified, and he indicated it was through the Police Service, through which he received certification.

[18] The officer referred to the certificate he had brought with him, Mr. Faulkner continued, and stated that the officer indicated he had been trained on three devices, one of them being an UltraLyte. However, there are a number of UltraLyte models produced by the manufacturer, as indicated by the letter from the manufacturer. The specific model on which the officer testified he was trained was not on the certificate. In fact, on further inquiry as to whether he would be qualified to operate the device that is listed on that certificate, specifically the LTI UltraLyte, he replied that he wasn’t familiar with that device, the LTI UltraLyte, and didn’t know if there were any differences in the operation or utilization of that particular speed measuring device.

[19] Mr. Faulkner asserted that he was providing evidence that should satisfy the Court that the prosecution had not made its case out beyond a reasonable doubt. In R v Vancrey, 2000 CanLII 26961 (ON CA), the Ontario Court of Appeal set out the criteria that the prosecution must meet to establish the accuracy of a speed measuring device.

[20] The issue that the court should address, according to Mr. Faulkner is that the certificate issued by the Toronto Police Service to Officer indicates a device other than what the officer was using. While he testified that he was qualified or trained on the LTI UltraLyte LRB LTI 2020, and that is the device he uses today, the certificate suggests otherwise.

[21] Further, when he asked the officer how he learned of the manufacturer’s specifications, he indicated that it was through his training. While the source of that training did indicate on the certificate that the specifications were for an LTI UltraLyte, the person didn’t note the specific model.

[22] In short, the court should be concerned as to whether or not the device noted on the certificate is in fact the same as the one the officer was using. And the court should be concerned whether the testing procedures were for the device that he used, or that the testing procedures were for the device indicated on the certificate, and that the two were not the same. If not the same, the court should be concerned whether or not the device was indeed tested according to the manufacturer’s specifications. If there is any doubt that the device was tested according to the manufacturer’s specifications, then there should be a doubt about the results. It would follow that the court should dismiss the charge.

Analysis

[23] Officer Krawczyk testified that he had been trained on 3 speed measuring devices in 2011 and received a card listing those devices after his training in 2011. One of the devices listed on the card is an UltraLtye LRB. Since then he has only used a specific UltraLyte device, namely the UltraLyte LRB LTI 2020 speed measuring device.

[24] Officer Krawczyk testified that he was trained and qualified to operate the UltraLyte LRB LTI 2020 speed measuring device. He tested the device before and after his shift according to the manufacturer’s specifications and found it to be in working order.

[25] Mr. Faulkner, on behalf of the defence, submitted that the certificate issued to the officer does not document a specific UltraLyte model, and certainly not the one he testified he had used.

[26] A letter from Laser Technology Inc. (LTI), dated January 4, 2008 and signed by the then President and COO Eric A. Miller, that was disclosed to the defence with the manual indicates that the company manufactures a line of laser speed measurement devices with the trademarked brand name “UltraLyte” and lists the names of models and variations. Further, according to the text of the letter, “the LTI speed measurement products that contain the name ‘UltraLyte’ in their description utilize the same core system architecture for gathering, processing and displaying speed measurement information. The different model names … refer to various options for auxiliary measurement, including all operator tests for verification of proper instrument operation as it relates to obtaining an accurate speed reading”.

[27] I would like to thank Mr. Faulkner for his efforts to allay any confusion or misunderstanding on the part of the court regarding the issue to be addressed. Indeed Mr. Faulkner has made a number of interesting and thought provoking points with respect to whether or not this court can rely on the police officer’s viva voce evidence regarding his competency to operate the speed measurement device and the accuracy of the speed he obtained with it.

[28] The letter to which Mr. Faulkner referred, that was disclosed to the defence, is dated January 4, 2008 and provides details on the speed measuring products manufactured by Laser Technology Inc. The police officer testified that he was trained in 2011 and provided with a card (referred to during the proceedings also as a “card”, a “certificate” and “certification”) that listed the devices on which he had been trained. The card included reference to an “LRB UltraLyte”. The Court can infer that the term referred to a category and variety of speed measuring devices as addressed in that letter. No evidence was provided to the court that the contents of the letter are out of date in January 2019 and that the device used by the officer did not fit within the framework of information provided.

Finding and Disposition

[29] The officer testified that he was trained subsequent to his training in 2011 on the specific device he used to measure the speed of the defendant’s motor vehicle on June 18, 2017. He named the device as an LTI UltraLyte type of speed measuring device and provided the model information. His viva voce evidence was clear, concise, consistent and credible with respect to his speed enforcement.

[30] I have considered the totality of evidence from the defence, and from the prosecution. I am left with no doubt. I accept the prosecution evidence and conclude that the prosecution has proven all the essential elements of the offence of speeding beyond a reasonable doubt. I find the defendant guilty. A conviction will enter.

[31] I invite the Prosecutor, followed by the Agent for the defendant, to make their submissions on sentencing and time to pay.

Signed: Justice of the Peace S. Mankovsky