Court File and Parties
DATE: May 3, 2021 Court file no.: 999 18 2260 00 ONTARIO COURT OF JUSTICE Provincial Offences Court, Whitby, ON
REGINA v. ADRIS AZIMI
REASONS FOR DECISION Trial held: September 16, 17, 23 and 26, 2019 and February 24 and 26, 2020 Decision released: May 3, 2021 (delayed due to Covid-19 pandemic) Her Worship Justice of the Peace Jane Moffatt
Counsel: Mr. Boodasingh, prosecutor Ms. V. Hawkes, legal representative for the defendant
Reasons for Decision
[1] It is alleged that the defendant, Adris Azimi, was the driver of a motor vehicle and he committed the offence of speeding, at the amended rate of speed of 76km/hr in a 60km/hr zone, contrary to s.128 of the Highway Traffic Act. A pedestrian was struck by the defendant’s motor vehicle and tragically died as a result of that collision. Mr. Azimi was charged under Part III of the Provincial Offences Act with the offence of speeding some 5 ½ months later.
[2] Six police officers and three civilian witnesses testified for the prosecution. Although the defendant testified on the voir dire, he did not testify at trial.
[3] I have released two mid-trial written decisions concerning both admissibility of statements made by the defendant to the police and with respect to admissibility of expert opinion evidence by an accident reconstructionist.
[4] The elements of the offence of speeding that must be proven by the prosecution beyond a reasonable doubt are these:
(a) ID – the defendant was the driver; (b) of a motor vehicle; (c) on a highway; (d) on the date; (e) at the place (municipality) indicated on the charging document; (f) and he drove his motor vehicle faster than the speed limit.
[5] It is not necessary to consider whether there is any causal connection between the speed the defendant’s vehicle and the collision that occurred with the pedestrian. My only role is to determine whether or not the defendant is guilty of the offence of speeding.
[6] The defendant’s identity as the driver of the motor vehicle has been established primarily through the admission of the statement the defendant gave to the police at the roadside. In addition, there is circumstantial evidence from civilian witnesses and police officers at the scene from which reasonable inferences of identification may be made. There are no inconsistencies with respect to the direct and circumstantial evidence before me in relation to identity of the driver. In totality, I am satisfied that identification of the defendant as the driver has been proven beyond a reasonable doubt.
[7] I find the defendant drove a motor vehicle on a highway on the date and at the place indicated on the information. It is not in dispute that this is a posted 60km/hr zone.
[8] The prosecution’s evidence relating to speed of the motor vehicle rests almost entirely upon the evidence of the accident reconstruction expert. He testified that in his opinion, at the moment of impact with the pedestrian, the vehicle was travelling at least between 76km/hr to 91km/hr in a posted 60 km/hr zone. This range constitutes a margin of error utilizing the Searle method of determining speed in a vehicle/pedestrian collision situation. The defendant has been charged with speeding at the lowest end of this range of speed, namely 76km/hr.
[9] The defendant argues that the accuracy and reliability of the method used to determine speed has not been established sufficiently to rely upon it in the absence of corroborating evidence. The prosecution submits the evidence of an eye-witness at the scene corroborates the evidence of speed from the officer.
[10] The defendant also submits that when the information is particularized to allege a specific rate of speed of 76km/hr in a 60km/hr zone, this is the speed that must be proven beyond a reasonable doubt. The calculations of the officer are based upon the accurate determination of four main criteria for utilizing the Searle method. It is argued that errors in any of these factors will cause the calculation to be inaccurate and the court should therefore not conclude that the rate of speed of 76km/hr has been proven beyond a reasonable doubt.
[11] I will therefore answer the following questions: (a) Is there corroborating evidence from other witnesses that the court accepts regarding speed of the vehicle? (b) Does the Searle method of determining speed in this case require corroborating evidence in order to be considered accurate and reliable? (c) Does this court accept the officer’s expert opinion with respect to speed as sufficiently reliable to constitute proof beyond a reasonable doubt? (d) Is it necessary to prove that the defendant was travelling exactly 76km/hr in a 60km/hr zone, as particularized on the information, or could a defendant be convicted of speeding provided only that the court is satisfied the vehicle was driven at some speed over the speed limit; and (e) Conclusion with respect to findings of fact relating to speed of the motor vehicle.
Is there corroborating evidence from other witnesses that the court accepts regarding speed of the vehicle?
[12] One of the three civilian witnesses made some comments with respect to speed of the vehicle. While it is permissible to receive evidence of estimates of speed from a lay witness, the court must of course consider the weight to be given such evidence.
[13] Breanna Partridge testifies that she was 2 or 3 cars behind the first car in a line of vehicles stopped at the red light facing northbound. She states that the eastbound vehicle seemed to be travelling over 60, sped through the intersection, and hit the pedestrian. She initially said she first saw the car when it was already in front of her. Later, she testified that she first saw it from the corner of her eye coming really fast. When asked how long she saw the vehicle coming “really fast” she said for 2 to 3 seconds. In cross-examination, she was asked if it takes 2 seconds to cross the intersection, to which she said yes. Ms. Partridge said that after the pedestrian was hit, her light turned to green two seconds later. She has no training in measuring speed.
[14] The evidence from this witness with respect to speed is internally inconsistent. She initially said she first saw the vehicle directly in front of her and later said she first saw it from the corner of her eye. While she agrees to the suggestion that it would take 2 seconds for a vehicle to travel from one side of the intersection to the other, she never states that she saw the vehicle as it entered the intersection. Further, this witness was 2 or 3 cars behind the lead car at this intersection and therefore not in the best position to make observations. I conclude that her evidence is unreliable and I give it no weight. To the extent the defendant’s representative urged me to make certain inferences with respect to speed based upon this witnesses evidence regarding time and distances, I decline to do so based upon the overall unreliability of her evidence as a whole.
[15] Therefore, I find that the evidence from the expert witness concerning speed is uncorroborated by other evidence.
Does the Searle method of determining speed in this case require corroborating evidence in order to be considered accurate and reliable?
[16] I have heard evidence from Officer Chad Lee, an experienced accident reconstructionist employed by the Durham Regional Police Service. He is qualified as an expert in relation to collision reconstruction and vehicle speed analysis. In his opinion, the Searle method of determining speed of a motor vehicle accurately establishes a range of speed the vehicle was travelling at the moment of impact. I also heard that this method has been used since prior to 2005. His confidence in the Searle equation is based upon his training. He also relies upon the training he has received regarding accident reconstruction, generally, and his 10 years of experience in the field employing various accident reconstruction methods. He is aware that there have been studies conducted to ensure the accuracy of the Searle method. While this officer has been previously qualified as an expert reconstructionist, this is the only case in which he has testified as an expert using the Searle method. He has used this method in only one other investigation relating to a vehicle/pedestrian collision.
[17] In R v Beyer 2011 ABPC 198, the Searle method of calculating speed was used. While not binding, in that case, the evidence included corroborating evidence of speed, unlike the case before me. It does not, however, suggest that the Searle method must be corroborated in order to be considered reliable.
[18] No evidence to the contrary was adduced or elicited that might question the accuracy of the Searle method. Despite a rigorous cross-examination, the officer was not shaken in his firm belief that the Searle method is capable of accurately determining the absolute minimum and absolute maximum range of speed of a motor vehicle involved in a vehicle/pedestrian collision. I therefore accept, on the only evidence before me, that the method used by the officer is capable of accurately measuring the speed of a motor vehicle involved in this type of collision.
[19] Corroborating evidence is often tendered in speeding trials. For example, it is common to hear an officer testify that the rate of speed shown on a speed measuring device was consistent with his or her visual observations. Accident reconstruction evidence with respect to speed is often corroborated by other evidence of speed from eye-witnesses. Sometimes, the extent of damage to a motor vehicle or other physical evidence at the scene will inform an opinion with respect to speed of a vehicle.
[20] However, I am aware of no requirement in law that evidence must be corroborated to be considered reliable and, in this case, I find no requirement that the evidence of speed be corroborated to be considered reliable.
[21] It is mere speculation that the Searle method is such novel science or such an untested or unreliable method of determining speed, that corroborating evidence is necessary in order for it to be considered accurate.
[22] Mere speculation by a defendant with no evidence to create an air of reality does not raise reasonable doubt (R v Fickling 2013 ONCJ 231). A court errs in law if a charge is dismissed based on speculation (R v Dubois, [1980] 2 S.C.R. 21; R v Brodeur 2014 NBCA 44).
[23] I therefore conclude that the method used by the officer to determine speed in this case does not require corroboration in order to be considered accurate and reliable.
Does this court accept the officer’s expert opinion with respect to speed as sufficiently reliable to constitute proof beyond a reasonable doubt?
[24] The officer agrees that the accuracy of the Searle method of determining speed is conditional upon accurately determining the four components necessary to use this equation. These components are: point of impact, resting position of the pedestrian, weight of the motor vehicle and weight of the pedestrian. The defence argues that the point of impact is possibly wrong; the center of mass of the pedestrian is not necessarily represented by the large pool of blood on the roadway and the weight of the pedestrian is potentially wrong because the officer did not confirm the accuracy of the pedestrian’s weight that he obtained from the police database.
[25] The officer testifies that the point of impact was within the crosswalk on the east side of the intersection, just before the center median of the roadway. He was on the scene for almost four hours, made observations, sometimes while on his hands and knees and he took measurements. He observed a scuff mark from the pedestrian’s shoe, located within the crosswalk and also identified a fluid drop which lined up with other fluid drops which lead directly to the rear of the defendant’s motor vehicle. The officer said these observations, taken together with other physical evidence on the scene – namely location of various fluid trails, final stop position of the involved vehicle, location of the final resting position of the pedestrian – satisfied him that the scuff mark accurately represented the point of impact. This scuff mark can be observed on some of the photographs taken at the scene.
[26] The officer was vigorously cross-examined on this issue but was unshaken in his belief that this mark represents the point of impact.
[27] The defendant argues that the officer’s conclusion regarding point of impact is inconsistent with the evidence from at least one of two civilian witnesses. In fact, I have heard varying opinions from both Ms. Henderson and Ms. Partridge concerning where the pedestrian was located at point of impact.
[28] Ms. Partridge, who was two or three cars behind the first vehicle stopped in line at the red light facing northbound, provided inconsistent evidence on this point. She initially said there was no crosswalk on the east side of the road. She then admitted that it is possible that there is a crosswalk, but she was not sure. Ms. Partridge eventually said she did not think the pedestrian was in the crosswalk at point of impact.
[29] It is impossible to rely upon the evidence of a civilian witness who is not even sure if a crosswalk exists on the east side of the intersection. In addition, Ms. Partridge was positioned within her vehicle a number of car lengths back from the intersection. I do not give any weight to the evidence of Ms. Partridge with respect to the specific location of the pedestrian at moment of impact.
[30] Ms. Henderson, who was first in line stopped at the red light facing northbound, testified that she observed the pedestrian walking north but he had entered the roadway to the east of the crosswalk, walking at an angle. She states that at the moment of impact he was within the crosswalk, just before the center median. Ms. Henderson was in a good position to make observations. Her evidence was very detailed and specific regarding the location of the pedestrian from the time he entered the roadway, the angle in which he walked, that she observed him holding something at the time and that he was within the crosswalk at the moment of impact. I accept the evidence of Ms. Henderson in this regard.
[31] On all of the evidence before me that I do accept, I find as fact that the point of impact between the defendant’s vehicle and the pedestrian was within the east crosswalk, a few steps before the center median.
[32] The officer testifies that he ascertained the resting position of the pedestrian – a necessary determination in order to use the Searle equation – by way of a large pool of blood on the roadway. He agrees that the resting position is typically the center of mass of the victim and that the blood pool is likely from the area of the head of the victim as opposed to the feet of the victim. In cross-examination, he was asked to calculate if there was a different result using the Searle method, in the event his measurement of the distance between point of impact and resting position was miscalculated by 1m, more or less. The officer states that if the distance between point of impact and resting position of the victim was 1m less, the lowest possible speed of the defendant’s vehicle would have been 75km/hr. If the distance was 1m more, the lowest possible speed would have been 77km/hr.
[33] The officer determined the weight of the defendant’s motor vehicle by googling the make and model on the internet. The weight of the vehicle was not challenged in any way at trial. The officer determined the weight of the pedestrian by accessing information in the police database, which stated he was a male, 5’7” in height and weighed 130lbs. This is also the weight shown on the motor vehicle collision report prepared by another officer. The Officer did not independently confirm that the weight of 130lbs was accurate. Officer Lee states that if the weight of the pedestrian was lower, the calculation of speed would be lower. If the weight of the pedestrian was higher, the calculation of speed would be higher.
[34] The defendant argues that in the absence of the officer’s personal knowledge regarding the weight of the pedestrian, the weight of 130lbs might be wrong. If the weight used is wrong, the calculation of speed would be wrong. Therefore, the defence submits, the court should not find the officer’s conclusions regarding speed reliable.
[35] The fact that part of the foundation of an expert’s opinion constitutes hearsay does not preclude its admissibility, however it may impact the weight attached to the expert opinion (R v Robichaud and R v Terceira, aff'd). The crown has the onus to prove assumptions upon which an expert opinion is based on a balance of probabilities, not beyond a reasonable doubt (R v Saul 2015 BCCA 149).
[36] The weight of the victim makes up part of the foundation of the officer’s opinion and is hearsay. The officer is making an assumption that the information is accurate. However, it is mere speculation, without any evidentiary foundation, that the weight relied upon by the officer is incorrect. There is no evidence to the contrary on this point. I observe, as a matter of human experience and judicial notice, that it is more likely than not that a 5’7” adult male could weigh more than 130lbs, rather than less. If he weighed more, the speed calculated would also be more than 76km/hr. In all of the circumstances, I am prepared to give weight to the officer’s reliance on the hearsay evidence contained in the police database, namely that the pedestrian weighed 130 pounds. Further, I am satisfied that the prosecution has proven, on a balance of probabilities, that the officer was correct to make an assumption of accuracy of the information in the database.
[37] I therefore accept the officer’s expert opinion with respect to speed as sufficiently reliable to constitute proof beyond a reasonable doubt that the defendant drove his motor vehicle in excess of the posted 60km/hr speed limit.
Is it necessary to prove that the defendant was travelling exactly at 76km/hr in a 60km/hr zone, as particularized on the information, or could a defendant be convicted of speeding provided only that the court is satisfied the vehicle was driven at some speed over the speed limit?
[38] The prosecution is, generally speaking, bound by the particulars contained within an information and must prove what is alleged in them (R v Saunders, [1990] 1 S.C.R. 1020; R v Brampton Brick Ltd.). A particular forms part of the charge against the defendant and is binding on the prosecution requiring proof. However, if the particular is not essential to constitute the offence, it will be treated as surplusage and therefore need not be proved (R v Vézina, [1986] 1 S.C.R. 481).
[39] In R v Winlow 2009 ONCA 643, the Ontario Court of Appeal found that the actual rate of speed matters only on penalty and it is not an essential element of the offence of speeding. Consequently, I find that the rate of speed alleged of 76km/hr in this case is not an essential element of the offence of speeding and therefore it is surplusage and need not be proved.
Conclusion with respect to findings of fact relating to speed of the motor vehicle
[40] While there is no onus upon the defendant to adduce any evidence at trial, I observe there is an absence of evidence rebutting the expert opinion regarding the speed of the defendant’s vehicle. There is no evidence before me that is inconsistent with the officer’s evidence regarding rate of speed.
[41] For all of these reasons, I accept the officer’s expert opinion that the defendant drove his motor vehicle in excess of the speed limit.
[42] I find the prosecution has proven beyond a reasonable doubt that the defendant drove his motor vehicle on a highway while exceeding the 60km/hr posted speed limit. There is therefore a finding of guilt to the offence of speeding and a conviction will be registered.
[43] It is necessary to make a finding of fact with respect to rate of speed in order to impose the correct financial penalty pursuant to s128(14) of the Highway Traffic Act. The officer admits that the distance from point of impact to the resting position of the pedestrian is a critical calculation using the Searle method. The victim was no longer on scene when this officer arrived. The officer said that the resting position of the pedestrian should represent his center of mass, however I have heard that the large pool of blood could very well have been in the area of the pedestrian’s head. Therefore, in my mind, the pool of blood does not necessarily represent the center of mass of the pedestrian. I accept the officer’s evidence that if the center of mass of the pedestrian was 1m closer to the point of impact, the lowest rate of speed travelled by the defendant would be 75km/hr.
[44] I am therefore satisfied beyond a reasonable doubt that the defendant was speeding at a rate of speed of 75km/hr in a 60km/hr zone on the evening in question. A conviction for speeding at that rate of speed shall be registered.