Court Information

Ontario Court of Justice

Date: 2019-01-08

Court File No.: Hamilton 17/809

Parties

Between:

Her Majesty the Queen – respondent

— And —

Isaac Marinho – appellant

Before the Court

Justice: George S. Gage

Heard: November 6, 2018

Reasons for Judgment Released: January 8, 2019

Counsel:

• C. Pakosh – counsel for the respondent Crown
• K. Farrell – licenced paralegal for the defendant/appellant

GAGE J.:

Introduction and History of Proceedings

[1] This is a conviction appeal of the trial decision of Justice of the Peace Ritchie made on May 28, 2018 at the conclusion of which the appellant was found guilty of the offence of stunt driving contrary to section 172(1) of the Highway Traffic Act.

[2] The proceedings were commenced by way of a traffic summons issued to the appellant by OPP Constable Robert Tihor on February 26, 2017.

[3] The summons was confirmed by an Information sworn on March 16, 2017.

[4] The information alleges that the appellant committed the offence of stunt driving by operating his motor vehicle on the Queen Elizabeth Highway approaching the Fifty Road interchange in the City of Hamilton at a speed of 180 km per hour which is more than 50 kph above the posted limit of 100 kph.

[5] The only evidence tendered at trial was the evidence of OPP Constable Tihor. He testified that he was monitoring highway traffic on the QEW on the date of alleged offence from a stationary position at Fifty Road, that he observed the appellant's vehicle approaching at a high rate of speed and that he used a LIDAR Laser speed measurement device to clock the speed of the appellant's vehicle at 180 kph.

[6] The appellant did not testify or present any evidence.

The Issue

[7] The appellant maintains that the evidence led by the Crown at the trial fails to satisfy the burden of proving that the speed of the appellant's vehicle was more than 50 kph over the posted limit.

[8] More particularly, the appellant submits that the evidence elicited from Constable Tihor concerning his qualification to test and operate the LIDAR device raises a reasonable doubt that the device was in proper working order and/or that the officer was operating the device properly when he clocked the appellant's vehicle.

The Evidence on Qualification and Operation

[9] In his examination in chief, Constable Tihor testified as follows:

• He has been a member of the Ontario Provincial Police since August 2008;
• In 2009 he trained in the theory and operation of the LIDAR speed measuring device in order to qualify as an operator. His instructor was OPP Constable Terry Mason;
• The measurement of the speed of the appellant's vehicle was made using the LIDAR device on February 26, 2017 at 10:29 am. Tihor trained the laser dot on the licence plate of the appellant's vehicle and activated the trigger which produced a reading of 180 kph;
• On the same date, prior to commencing his patrol, Tihor tested the LIDAR device at his detachment at 8:49 am;
• He also tested the device after the arrest of the appellant at 11:45 am;
• In testing the device, both before and after the arrest, Tihor followed the manufacturer's instructions using the preconfigured testing procedure that is programmed into the device and employing pre-measured distances at the detachment. The device conducts an internal test followed by confirmation that all display lights are properly engaged followed by two separate stationary measurement tests followed by a checking of the horizontal and vertical alignment of the scope using a stationary object (building) located 50 metres away.

[10] In the course of his cross-examination Constable Tihor testified as follows:

• He was not trained by the manufacturer of the device;
• He was trained by an OPP instructor. He has no direct knowledge that his instructor was trained by the manufacturer;
• He has seen the operating manual for the device. He does not recall the last time he saw it. He has not looked at it recently.
• He took his initial training in 2009. He took a refresher training course in 2010. He has had no refresher training since then. He has no knowledge of any upgrades or revisions to the testing protocols;
• He is not aware of OPP policy concerning refresher training on this device;
• He conducted the pre and post arrest testing in accord with his memory of the training he received and following the protocol initiated by pushing the "test" button on the device;
• None of the testing involves a measurement of a moving object.

Trial Decision

[11] The issue of the qualification of the officer to operate the device properly was dealt with by the trial justice as follows:

"As per some of the submissions from the defence, the officer indicated that he was requalified in 2010 and the defence's argument is that's a long time since requalification. The defence suggestion is that there has been updates, but I have no evidence of that. That is speculation. I am satisfied based on the evidence, and no evidence to the contrary, just speculation, that the officer is qualified. What also goes into qualification is that the OPP officer said that he was trained by another OPP officer and he takes it on faith that he wouldn't be trained by an unqualified OPP officer. Again, I am satisfied that the officer was properly trained. Again, there is no evidence to the contrary. It's speculation that he wasn't trained, properly trained."

Reference: Transcript of trial proceedings, page 19, lines 1-15

"I found the police officer very consistent in examination in chief and in cross examination. I find the police officer to be reliable and credible. What's important here is there is absolutely no evidence to the contrary and, given that, the court finds that the prosecution has proven all the elements of the offence and a conviction is registered."

Reference: Transcript of trial proceedings, page 20, lines 5-13

Jurisprudence

[12] In R v Sim, our Court of Appeal upheld a conviction for speeding on the following basis: "That there was evidence of the police officer that he tested the radar unit both before and after it measured the respondent's speed accurately, and that there was evidence from which it can be concluded that the police officer was familiar with the unit and the manner in which it was intended to be used".

[13] In R v Vancrey the Court of Appeal considered the evidence required to establish the prima facie reliability of a laser speed measurement device. In that case the court found that evidence that the device was tested, in accord with the manufacturer's instructions, by a trained and experienced officer operator both before and after its use together with an earlier verification of the accuracy of the laser unit by way of a highway comparison with an accurate radar unit. The Court did not deal with the question of what is required to satisfy the court that the officer operating the device is "trained and experienced".

[14] In R v Sepiashvilli, Justice Kenkel observed: "the reliability of the LTI Marksman 2020 laser speed detection system has been established. The evidence that a qualified operator tested the device in accordance with the manufacturer's specifications found the device to be in working order is sufficient to establish prima facie reliability." The question of what will be satisfactory evidence of qualification is not directly addressed.

[15] The question of qualification was addressed by Justice P. Harris of this court in his appeal decision in R v Viegabatista. The relevant trial evidence was that the officer operator was "qualified by way of instruction by a member of the Toronto Radar Coordinator's Team who gave a lecture to him and a bunch of other traffic officers…down at Traffic Services and hands on experience with the radar device". He described it as a digital piece of equipment. He had never seen the manual for the laser model he was using on the day in question. He learned the testing protocol by "someone else" telling him what it said.

[16] Harris J. ruled that accepting the contention that the trainer was training in accord with the manufacturer's specification would represent an improper reliance on hearsay. In the circumstances he found that the evidence of the operator's training and experience was not sufficient to allow the court reach a satisfactory conclusion about the competence of the operator to test and utilize the device in accord with the manufacturer's specifications. He found that the evidence did not assist in determining whether the operator had "undertaken some personal training to satisfy himself that he's following the manufacturer's specification".

[17] The issue was next examined by Justice Pockele in an appeal ruling in R v Williams. In the course of his decision Justice Pockele makes the following observations:

• It is not an essential element of the offence of speeding that the officer who observed the speeding be qualified in any particular manner according to Ontario law;
• There is no requirement in the Highway Traffic Act that the operator of a speed detection device achieves a certain level of qualification as a prerequisite to accepting the operator's evidence of the rate of speed although lack of training, improper training and/or inexperience, lack of familiarity with the speed measurement device and any contrary or contradictory evidence may all factor into the consideration by the trier of fact of whether the rate of speed has been established beyond a reasonable doubt;
• In assessing whether the rate of speed has been established beyond a reasonable doubt the trier of fact should look at the whole of the evidence rather than approaching the issue on a piecemeal basis.

[18] The issue of operator qualification and competence was examined by Justice Bellefontaine of this court, initially in R v He, and later more extensively in R v Xu. The evidence at trial concerning the operator officer's qualifications in Xu was as follows:

• The officer identified the type of speed measuring device he was using;
• He testified he had been trained on the device;
• He tested the device at the beginning and the end of the shift during which he had measured the speed of the appellant;
• The result of the tests was that the device passed;
• The testing was done in accord with the manufacturer's specifications;
• In his training he was trained to do 5 tests and if the device passed those it was deemed operable and ready to use on the road – he was told in his training that these 5 tests were the tests recommended by the manufacturer;
• He was never provided with a manual for the device;
• He had never read the manual for the device.

[19] The position adopted by the defence in Xu was:

• that it was insufficient for the officer to be trained on the device;
• that evidence that he passed the training and was formally qualified by some form of certification process or test was required; and
• that in the absence of having personally read the manufacturer's manual, the officer is not in a position to say that he operated the device in accord with the manufacturer's specifications.

[20] The trial Justice found that the rate of speed was proven beyond a reasonable doubt. In so doing the trial Justice found that the officer was qualified to use the device and that the rate of speed shown on the device was confirmed by the officer's visual observations.

[21] Justice Bellefontaine upheld the decision of the trial Justice.

[22] I take the following principles from the Xu decision:

• The qualifications of the officer are not an essential element of the offence that need be proven;
• The issue of whether the lack of training or qualification or inexperience will inspire a reasonable doubt is a factual determination;
• In considering the level and nature of the qualifications required of an officer, it is important to be mindful that the Highway Traffic Act does not provide for particular devices to be used to determine speed and does not require any training, experience or qualifications for a witness's evidence to be admissible;
• Evidence coming from a police officer operating specialized equipment used to detect speeding vehicles is expert testimony. The only requirement for the admission of expert opinion is that the expert witness possesses a special knowledge and experience going beyond that of the trier of fact. Deficiencies in the expertise go to weight, not to admissibility;
• Given the lack of statutory requirements for any training or certification, and accordingly who should do it, the level of rigour established for certification or formal qualification could be so variable as to be meaningless. It would therefore be an error to require any formal certification or qualification as a pre-condition to accepting evidence of the results of a speed measuring device. "Qualification" should be interpreted in the expert evidence context as a qualification by the trial Justice in determining whether the witness possesses special knowledge and experience going beyond that of the trier of fact;
• An expert is entitled to rely on hearsay evidence in the course of coming to their opinion, and they often rely on secondary materials to develop their expertise;
• Deficiencies in the expertise go to the weight and not the admissibility of expert opinion evidence. The quality of any officer's training may, not must, raise a reasonable doubt.

Analysis

[23] The defence places primary reliance on the decision of Justice Harris in Viegabatista. Having reviewed the relevant jurisprudence it is my view that the decision of Justice Harris in Viegabatista is tied to its own facts. On the facts before him, including an unidentified trainer and no personal review of the manufacturer's manual, Justice Harris was not satisfied that the readings could be relied upon.

[24] To the extent that Justice Harris ventured further afield, in suggesting that the operator's reliance on an assurance from his instructor that his training accorded with the manufacturer's instructions represented reliance on inadmissible hearsay and in proposing a qualification voir dire as a precursor to admissibility, I am not able to locate a subsequent decision in which that reasoning was followed.

[25] Justice Bellefontaine in Xu directly rejects the hearsay argument.

[26] If the evidence of the officer operator is expert testimony as Justice Bellefontaine suggests (a view with which I concur) then Justice Harris suggestion that an expert qualification voir dire should precede the admission of evidence of the speed measurement device readings from the officer operator would appear to have considerable merit. In most cases the requirement of specialized knowledge outside the ordinary experience of the trier of fact would be easily met. I note that in this case a voir dire was not held, nor was one requested. Nevertheless I am satisfied, based on the evidence before the trial Justice that a voir dire for qualifications in this case would have resulted in the officer being permitted to testify.

[27] In any event, to the extent that the reasoning of Justice Harris in Viegabatista differs from, or is inconsistent with, the reasoning of Justices Pockele in Williams and Bellefontaine in Xu, I prefer the reasoning of Justices Pockele and Bellefontaine.

[28] The question then is whether there was evidence before the trial Justice from which she could reasonably conclude that the speed of the appellant's vehicle was proven beyond a reasonable doubt to have been more than 50 km over the posted speed limit.

[29] The officer operator identified the speed measurement device he used, including the serial number. He was trained in the operation of the device in 2009 and took refresher training in 2010. He identified his trainer. He personally reviewed the manufacturer's manual, albeit not recently.

[30] Although OPP standards for refresh training were referenced in cross-examination there was no evidence before the Court that the officer fell short of those standards.

[31] Likewise, there was no evidence before the Court that the training that the officer received in 2009 and 2010 was in any way out of date or deficient in terms of either the testing or the operation of the device used. In these circumstances the absence of refresher training subsequent to 2010 and lack of recent review of the manufacturer's manual does not necessarily raise a reasonable doubt.

[32] The officer operator performed the tests in accord with the manufacturer's specifications. His description of the tests he performed indicated familiarity with the testing protocols. Cross examination did not expose any flaw in the testing protocols he used. The device passed the tests both before and after the measurement of the appellant's speed. The measurement of speed produced by the LIDAR device confirmed the officer's visual impression that the appellant's vehicle was approaching at a high rate of speed.

[33] In the circumstances I find that there was evidence upon which the presiding Justice of the Peace could reasonably find that the LIDAR device was operating properly on the date of the offence, that it was operated properly by the officer and that the evidence of speed secured by the officer through the operation of the LIDAR device was reliable and proved the offence beyond a reasonable doubt.

[34] The appellant has not demonstrated error or a miscarriage of justice. The conviction is upheld. The appeal is dismissed and the stay, if any, is vacated.

Released: January 8, 2019

Signed: Justice George S. Gage