Ontario Court of Justice

Date: 2019-11-18

Court File No.: Newmarket 4960 999 18 40220000 00

In the Matter of an Appeal

Under s. 116(2) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

HER MAJESTY THE QUEEN Appellant

— AND —

KIANO VAFAEIAN Respondent

Before: Justice David S. Rose

Heard on: November 1, 2019

Reasons for Judgment released on: November 18, 2019

Counsel:

• Mr. T. Hamilton, counsel for the prosecution
• No appearance by or on behalf of Kiano Vafaeian, even though notified of time and place

On appeal from: Acquittal on charge of speeding by Justice of the Peace A. Romagnoli on June 26, 2019

Reasons for Judgment

ROSE J.:

[1] The Crown appeals Mr. Vafaeian's acquittal on the charge of speeding. The appeal was heard on November 1, 2019. At the conclusion of argument I allowed the appeal with reasons to follow. These are the reasons.

[2] Mr. Vafaeian was tried on two charges on June 26, 2019. One was drive while suspended, and the other was speeding. This appeal relates solely to the charge of speeding. The trial was ex parte.

[3] The trial evidence was brief. PC McRae testified that he was doing radar enforcement on King Road on October 9, 2018 at 12:29 am. He saw a white sedan travelling at a much higher rate of speed, and used his handheld radar device to measure its velocity, which was 86 km/hr. It was a posted 50 km/hr zone.

[4] PC McRae "…pulled out in behind this vehicle. It was travelling westbound." He then stopped the white sedan and found the driver to be the Respondent. He was satisfied through the driver's licence photograph of the Respondent's identity.

[5] McRae testified that he is qualified to use the radar device. He tested it at 1953 hours before the investigation that brought him to court, and afterwards, at 0223. He was satisfied that the device was functioning properly.

[6] In her reasons for judgment Her Worship properly found that the only evidence she had at the trial was the evidence of PC McRae. There was no contradictory evidence. Her Worship then found that,

The difficulty I have with the speeding charge, the officer tested it at 1953 and again at 0223 hours. And there is no evidence in accordance with what instructions he tested the device. There's no indication as to what caused him to conduct tests. There's no indication that when he tested the device it was working properly. He didn't tell the Court that.

[7] Later she said,

Again, there's nothing to indicate according with or whose instructions he tested the device.

And there's no evidence as to his visibility of the motor vehicle at the time. He testified that it was foggy out, and he saw it when it was 400 metres from his location. There's no evidence of his visibility at the time.

I am not convinced that the elements of the offence have been made out. That charge is dismissed.

[8] It appears that Her Worship dismissed the charge for two reasons. The first was a lack of evidence about the radar device. The second was a lack of evidence about visibility.

[9] A trial judge's findings of fact are entitled to deference from an appeal court unless they are born of a palpable and overriding error, see Housen v. Nikolaisen 2002 SCC 33 (at para. 10). The standard of review on questions of law is that of correctness, see Housen v. Nikolaisen (supra at para. 8).

[10] On reflection, I find that the first question raised in this appeal, namely the calibration of the radar device, involves a question of law. The legal issue is what are the constituent elements of the offence of speeding. Her Worship found that the Crown had to prove calibration of the speed measurement device. That was an error. In order to make out the velocity portion of the offence, it is sufficient for the prosecution to prove that the officer tested the radar unit before and after the investigation, and that the officer is a qualified operator, see R. v. Bigioni 1988 CarswellOnt 2138 (C.A.), R. v. Chair 2015 ONCA 868.

[11] In this case the prosecution did just that. There was uncontradicted evidence that Officer McRae was a qualified operator of the radar device and that he tested it both before and after he investigated the Respondent. He gave direct evidence that the device was functioning properly. When her Worship based her acquittal on a lack of evidence of why Officer McRae tested the radar device or his instructions about testing it she imposed a burden on the prosecution which was wrong in law. It was also an error of fact insofar as the evidence was clear that Officer McRae was a qualified operator and that he tested the radar device both before and after the investigation. There was no contradictory evidence on the point or basis to disbelieve his evidence. This was a palpable and overriding error.

[12] Her Worship also referred to a lack of evidence about visibility. Officer McRae testified that the weather was foggy, but the Respondent's vehicle was the only vehicle in his view at the time. He also said that he had a view of 400 metres to the east and 400 metres to the west. The only evidence at the trial was that Officer McRae pulled out of his position and then behind the Respondent's before pulling him over. There is an absence of evidence about the effect of fog on his ability to identify the Respondent's car. Furthermore, in order to be afforded deference, Her Worship's finding that "There's no evidence of his visibility at the time", had to confront the balance of his evidence that he could see 400 metres in each direction, and that he pulled in directly behind the Respondent's car.

[13] Her Worship's finding that fog supported an acquittal is not entitled to deference. The evidence at trial was uncontradicted that, while there was fog in the air, Officer McRae identified the Respondent driving his car at 86 km/hr in a 50 km/hr zone. No other car was in the vicinity. He pulled his police car in behind the Respondent's. The evidence of guilt is overwhelming. The acquittal is overturned and a conviction entered.

Released: November 18, 2019

Signed: Justice David Rose