ONTARIO COURT OF JUSTICE
(Toronto Region)
CITATION: Toronto (City) v. Ramroop, 2022 ONCJ 611
DATE: December 1, 2022
COURT FILE No.: 994 22 22100049-00
BETWEEN:
HIS MAJESTY THE KING
(THE CITY OF TORONTO)
— AND —
OOMA RAMROOP
Before Justice of the Peace Roger Rodrigues
Heard: October 28, 2022
Judgment and Written Reasons: released on December 1, 2022 (via email)
Mr. C. Oberle............................................................................................. for the Prosecution
Mr. P. Periti……...…………………………….………………………… for Ooma Ramroop
JUSTICE OF THE PEACE ROGER RODRIGUES:
Introduction
Ooma Ramroop (the “defendant”) was charged on January 7, 2022, for speeding, in particular 121 km/hour in a posted 50 km/hour community safety zone, contrary to section 128 of the Highway Traffic Act ("the HTA"). The charge was laid via an information pursuant to Part III of the Provincial Offences Act (“POA”) as the alleged rate of speed was 50 km/hour or more over the posted speed limit. As the offence allegedly took place in a community safety zone designated by by-law passed under subsection 214.1 (1) of the HTA, where the prescribed rate of speed is less than 80 kilometres per hour, subsection 205.1(1) of the HTA allows for the use of Automated Speed Enforcement (“ASE”), an automated system that uses a camera and a speed measurement device to enforce speed limits in such identified areas. This is an owner liability type offence, and the sole consequence is monetary.
The evidence before the court came from David Powers (“Officer Powers”), a designated Provincial Offences Officer and while the defendant did not testify, the defence called the driver of the motor vehicle, Blayne Kumar (“BK”), the defendant’s son and the driver during the material time. As the trial stretched over two tiers on October 28, 2022, and with the consent of the parties, I adjourned the matter to December 2, 2022, to provide the within reasons and judgment and, upon release of same, if necessary, to give the parties an opportunity to speak to penalty. I provided my written reasons to the parties, via email, on December 1, 2022.
The Legislation
- There is no distinct offence section for ASE-related charges. The offence section is 128 of the HTA, which states, as is applicable here:
128 (1) No person shall drive a motor vehicle at a rate of speed greater than,
(a) 50 kilometres per hour on a highway within a local municipality or within a built-up area;
- Part XIV.1 of the HTA governs ASE and states:
205.1 (1) An automated speed enforcement system may be used in accordance with this Part and the regulations made under it,
(a) in a community safety zone designated by by-law passed under subsection 214.1 (1) where the prescribed rate of speed is less than 80 kilometres per hour; or
(b) in a school zone designated by by-law passed under clause 128 (5) (a). 2017, c. 9, s. 5.
(2) The owner of a motor vehicle shall not be subject to conviction or penalty as an owner in respect of an alleged contravention of section 128 except on the basis of evidence obtained through the use of an automated speed enforcement system. 2017, c. 9, s. 5.
(3) The owner of a motor vehicle convicted as an owner of an offence under section 128 on the basis of evidence obtained through the use of an automated speed enforcement system is not liable to a driver’s licence suspension under section 46 as a result of default in payment of a fine resulting from that conviction. 2017, c. 9, s. 5.
(4) The driver of a motor vehicle convicted as a driver of an offence under section 128 on the basis of evidence obtained through the use of an automated speed enforcement system is not liable to imprisonment or to a probation order under subsection 72 (1) of the Provincial Offences Act as a result of that conviction or as a result of default in payment of a fine resulting from that conviction. 2017, c. 9, s. 5.
Subsection 205.2(1) allows for regulations prescribing what constitutes an ASE system and Ontario Regulation 398/19 addresses virtually every aspect of the ASE system. The following sections of Ontario Regulation 398/19 are particularly relevant in this matter:
(1) Subject to subsection (2), a photograph obtained through the use of an automated speed enforcement system shall be received in evidence in a proceeding under the Provincial Offences Act in respect of an alleged offence under section 128 of the Act.
(2) The photograph must comply with the requirements of this Regulation.
(3) A photograph that purports to be certified by a provincial offences officer as having been obtained through the use of an automated speed enforcement system shall be received in evidence as proof, in the absence of evidence to the contrary, that the photograph was obtained through the use of an automated speed enforcement system.
(4) A provincial offences officer shall not certify a photograph as having been obtained through the use of an automated speed enforcement system unless the automated speed enforcement system was tested and established to be accurate within the 12 months immediately preceding the date of offence.
(5) A photograph of a motor vehicle obtained through the use of an automated speed enforcement system is proof, in the absence of evidence to the contrary, that,
(a) the automated speed enforcement system was located on or adjacent to a highway and was working properly at the time that the photograph was taken;
(b) the information or data that is shown or superimposed on the front or the back of the photograph, including any information or data authorized under section 3, is true; and
(c) the motor vehicle was being operated at a rate of speed in excess of the posted speed limit contrary to section 128 of the Act. [Emphasis added]
The Issue(s)
At the conclusion of the evidence and submissions, there was no dispute as to the date, time, place, location, Municipality, identity of the defendant and her being the owner of the motor vehicle at issue. As well, BK testified he was driving the motor vehicle at the material time on a highway and as reflected by the two photographs entered into evidence. Further, the defence did not dispute the alleged offence took place in a community safety zone designated by by-law passed under subsection 214.1(1) of the HTA, where the prescribed rate of speed is less than 80 kilometres per hour and the required signage was displayed in accordance with section 8 of Ontario Regulation 389/19. Accordingly, I am satisfied these essential elements of the alleged offence have been established beyond a reasonable doubt.
The remaining issue is whether the defendant’s vehicle was travelling at a rate of speed greater than 50 kilometres per hour during the material time. The prosecution must prove this remaining issue to the standard of proof beyond a reasonable doubt and the defendant is presumed innocent until proven guilty.
The Evidence
- The relevant evidence may be summarized as follows. Given my findings below, it is important I provide a more fulsome than usual summary of the witnesses’ testimony.
Officer Powers’s Testimony
Officer Powers, who had independent recollection of the events and referred to his notes to refresh his memory, testified that to complete the certified statement, which he did on March 16, 2022, he was satisfied that the images show a motor vehicle exceeding the posted speed limit in a community safety zone; the alpha numeric characters and the jurisdiction of the motor vehicle licence plate are clear; the motor vehicle has been marked by the ASE system; the ASE system used to detect the motor vehicle is a system described in Ontario Regulation 398/19; the signage required by the ASE regulation was posted at that location; other signage as required was posted, such as speed limit signs and signage regarding the community safety zone; that there is a certificate of accuracy for the device used dated within twelve months of the date of the offence.
With respect to Exhibit 1A, the photograph showing the motor vehicle proceeding northbound on Avenue Road, near MacPherson Avenue, in Toronto, Officer Powers pointed to the alleged speed of 121 km/hour, and the large yellow target indicator/marker next to the rear of the vehicle. Officer Powers added the defendant’s vehicle is the “lone vehicle” depicted in the photograph. Officer Powers testified the vehicle’s licence plate can be seen in Exhibit 1A and is enlarged in Exhibit 1B and his certification is placed on the back of both photographs. Upon being satisfied as to ownership of the motor vehicle based on a Certificate of Ownership from the Ministry of Transportation (Exhibit 2), that the AES system, including the target indicator and the existence of “eight test images”, was working properly, Officer Powers “concluded charges should proceed.”
Officer Powers further testified he has been a designated Provincial Offences Officer since March 2020, after receiving training for one month from his “managers and fellow officers”. In terms of how it was determined the ASE system in this matter met the requirements of Ontario Regulation 398/19 and was in proper working order, Officer Powers testified this is done upon a review of the “test images”, the photographs produced and the nature of the target indicator. Officer Powers added, if there was “misinformation on the data bar” or “the target indicator was not proper” such as “touching two vehicles” or if no photographs were produced due to “the unit being vandalized”, then the unit would not be working properly.
On cross-examination, Officer Powers provided further details going to the procedure for determining if the ASE system is, in general, working properly. He testified there is a “seven-day stretch”, called the “deployment”, during which time eight photographs similar to Exhibit 1A are taken for test purposes—four photographs at the start of the deployment and four photographs at the end of the deployment. The eight photographs are examined to see if they contain information/data such as depicted in Exhibit 1A, if the photographs are “viewable” and if they contain a proper target indicator. The process cannot “go forward” unless all eight photographs are approved. The deployment date is not necessarily the same as the date of an offence and Officer Powers stated he has seen deployment periods of a six-day duration but not more than a seven-day duration and does not know if the deployment duration can extend past seven days.
Further on cross-examination, Officer Powers testified he was unable to recall the dates of the test images in the instant case or whether test images must be taken “within certain days”. Officer Powers was also unaware how the device used in the instant case was “powered” and the name of the manufacturer of the device. When asked how the device measures the rate of speed, Officer Powers stated there is “a radar within the device” “with a camera”, however, he did not know the manufacturer of the radar device, adding it would be stipulated on the City’s website. Officer Powers further testified he has not reviewed the manual for the device used in this matter, that he did not know when the device was placed at the location in this matter or if the device remains there and, in general, he is unable to answer any questions going to the installation of the device. On the certificate of accuracy for the device, Officer Powers testified the document “comes from the company” that manufactured the device and can be viewed on the City’s website.
BK’s Testimony
BK is the defendant’s thirty-four-year-old son. He testified his mother owns the motor vehicle at issue, he and his mother both drive the motor vehicle and he was the driver on August 15, 2021 at 3:12 a.m. northbound on Avenue Road, near MacPherson Avenue, in Toronto as depicted in Exhibit 1A. BK stated he “often” drives the same route from his office to his girlfriend’s home and he believed the ASE system used here, which he referred to as a “speed trap”, was installed in July 2021. BK stated he recalls his trip on August 15, 2021 at 3:12 a.m. because it was “odd” and “an anomaly” as he does not normally drive at 3:12 a.m.. On that date, BK said he took a nap, woke up after a good rest, and then went to retrieve a canopy from his office and was on his way to his girlfriend’s home to deliver same for a bridal shower scheduled later that morning.
BK testified he “always” sets the vehicle’s cruise control to 47 or 48 km/hour “right on the steering wheel” when he turns on to Avenue Road and he did this on August 15, 2021. BK added the vehicle is equipped with an analog speedometer, which does not display a numeric rate of speed, and the needle points to “around 45 km/hour”. When asked if he was cognizant of the speed during the date and time of the alleged offence, BK testified he knew he was “going below 50 [km/hour]” and just “did not know if it was 45 or 47 [km/hour]”. BK also testified, as a driver since the age of 16 years, he knows what a speed of 121 km/hour “feels like”.
On cross-examination, and when asked if the vehicle’s speedometer has been tested, BK testified the vehicle was purchased one year before the alleged offence date and underwent the required safety test at that time. To the suggestions he was in a rush and not paying attention during the material time, BK disagreed, testifying he was “in no rush” to get to his girlfriend’s house, “woke up after a good rest”, “was alert and awake” and was aware of “the speed trap” and “camera there” and “put this as a priority”. Lastly, BK testified he did not have a discussion with his mother about who would pay the associated fine, should one be ordered.
Analysis
As stated, the sole remaining issue is whether the prosecution has proved, beyond a reasonable doubt, the defendant’s vehicle was travelling at a rate of speed greater than 50 kilometres per hour during the material time. The defendant is not required to establish her vehicle was not travelling at a rate of speed greater than 50 kilometres per hour, nor is she required to explain the evidence presented by the prosecution. She is presumed to be innocent until proven guilty. The prosecution bears this onus of proof beyond a reasonable doubt throughout the trial and the onus never shifts. The Supreme Court of Canada has provided guidance in connection with the principle of proof beyond a reasonable doubt. In R. v. Lifchus 1997 CanLII 319 (SCC), the Supreme Court held that the meaning of proof beyond a reasonable doubt was as follows: "the standard of proof is higher than ... a balance of probabilities yet less than proof to an absolute certainty." In Lifchus, the Court further instructed 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. In R. v. Starr 2000 SCC 40, [2000] 2 SCR 144 the Court stated that the standard of proof beyond a reasonable doubt is much closer to absolute certainty than to a balance of probabilities.
This is a case which turns on the underlying issue of the credibility of the evidence and I am mindful of the principles set out in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (“R. v. W.(D.)”) at paragraph 28:
• First, if I believe the evidence of the defendant, obviously I must acquit.
• Second, if I do not believe the testimony of the defendant but I am left in reasonable doubt by it, I must acquit.
• Third, even if I am not left in doubt by the evidence of the defendant, I must ask myself whether, based on the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the defendant.
- Since R. v. W.(D.), courts at every level have held triers of fact must not treat the standard of proof as a credibility contest. In other words, it is an error of law to simply conclude that the standard of proof has been met because the trier of fact prefers the evidence of Crown or prosecution witnesses to that of defence witnesses. I must be satisfied on the totality of the evidence that there is no reasonable doubt as to the defendant's guilt. The obligation of a R. v. W.(D.) analysis was summarized in R. v. Minuskin (2004), 2003 CanLII 11604 (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.) at 550:
It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W. (D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".
- As stated, the defendant did not testify, however, her son, BK, the driver during the material time did so. This raises the issue of whether other defence-led evidence (other than the defendant’s testimony) requires the application of R. v. W.(D.). In my view this issue has been settled by the Court of Appeal for Ontario in R. v. B.D., 2011 ONCA 51, where R.A. Blair J.A. stated:
[105] There is some uncertainty in the jurisprudence, however, about whether the W.(D.) requirement extends beyond cases where the accused testifies to those where the accused does not but there is other defence evidence called contradicting the Crown’s case and/or conflicting evidence favourable to the defence in the Crown’s case (for example, an exculpatory remark in a statement put in by the Crown), and the jury must make credibility findings in that context. This Court has not yet squarely decided that issue. For the reasons that follow, I am satisfied that the principles underlying W.(D.) do extend to such circumstances.
[114] What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt: Challice. In that event, they must acquit.
As outlined above, section 4 of Ontario Regulation 398/19 states, in part, a photograph of a motor vehicle obtained through the use of an automated speed enforcement system is proof, in the absence of evidence to the contrary, that a) the automated speed enforcement system was located on or adjacent to a highway and was working properly at the time that the photograph was taken, b) the information or data that is shown or superimposed on the front or the back of the photograph, including any information or data authorized under section 3, is true and c) the motor vehicle was being operated at a rate of speed in excess of the posted speed limit contrary to section 128 of the HTA.
In terms of “evidence to the contrary”, clearly the legislation does not state if the conditions in the preceding paragraph are in place such amounts to conclusive evidence the motor vehicle was being operated at a rate of speed in excess of the posted speed limit. The legislation states the evidence presented by the prosecution can be challenged by evidence to the contrary.
It should also be noted that while all relevant evidence, that is admissible evidence, amounts to evidence before the court, such evidence does not necessarily amount to “evidence to the contrary”. Here, the presumption created is with respect to the accuracy of the results, as outlined in paragraph 21 above, and yielded by the ASE system in place in this matter, so the evidence presented as going to the contrary of that presumption must pass some contextually determined threshold sufficient for the purposes of an evidence to the contrary analysis. The analysis here is a reasonable doubt analysis. Whatever the evidence, does it meet the test of raising a reasonable doubt?: R. v. Boucher, (2005), 2005 SCC 72 and, further, does the evidence at least raise a reasonable doubt about the fact(s) to be presumed?: R. v. St. Pierre, 1995 CanLII 135 (SCC), [1995] 1 S.C.R. 791.
Here, the evidence presented by the defence, as evidence to the contrary, is BK’s direct testimony. I have considered BK’s evidence on its own and in light of the entirety of the evidence presented by the prosecution and, for the reasons below, I find the prosecution has failed to establish, beyond a reasonable doubt, the defendant’s vehicle was travelling at a rate of speed greater than 50 kilometres per hour on the date and time at issue.
During his testimony, prosecution witness Officer Powers came across as an honest witness. He testified in an impartial, professional and concise fashion. Further, I did not get a sense Officer Powers tried to exaggerate or overstate his observations. Indeed, he readily acknowledged his duties are limited to dealing with the software and paperwork associated with, or generated by, the ASE system, versus the system’s manufacture, hardware, installation and testing procedure. In the end, however, the strength and reliability of Officer Powers’s evidence was materially lessened through cross-examination, as explained below.
As stated, on cross-examination Officer Powers provided details going to the procedure for determining if the ASE system is, in general, working properly. He spoke about a seven-day period, called the “deployment”, during which time eight photographs similar to Exhibit 1A are taken for test purposes—four photographs at the start of the deployment and four photographs at the end of the deployment. The eight photographs are examined to see if they contain information/data such as depicted in Exhibit 1A, if the photographs are “viewable” and if they contain a proper target indicator. We know from subsection 4.(4) of Ontario Regulation 398/19 a provincial offences officer shall not certify a photograph as having been obtained through the use of an automated speed enforcement system unless the automated speed enforcement system was tested and established to be accurate within the 12 months immediately preceding the date of offence.
It seems clear the eight photographs generated by the ASE system during the deployment period are central to determining if the system is working properly—and that test and determination of the system’s accuracy must be conducted within the 12 months immediately preceding the date of offence. On cross-examination, Officer Powers testified he was unable to recall the dates when the test images in the instant case were taken so as to inform whether the ASE system was tested and established to be accurate within the 12 months immediately preceding the date of the offence as required by the legislation. Moreover, Officer Powers did not provide any evidence going directly to when the system was tested, there was only mention of “seven months” prior to the offence date. As well, and while not determinative, Officer Powers testified the required certificate of accuracy is provided by the company which manufactures the system, yet he was unable to name the company, stating such information is available on the City’s website. As well, Officer Powers testified a lone vehicle (the defendant’s vehicle) is depicted in the photographs in evidence, yet a second vehicle is clearly present. On this last point, which is not on its own determinative, and there is no suggestion the second vehicle was speeding, its very clear presence in Exhibit 1, does lend some credence to the defence’s submission it was not considered by Officer Powers and diminishes the weight I should accord to his testimony vis-à-vis “his ability to analyze”.
The defence’s exculpatory evidence came from BK, the defendant’s son and the driver of the motor vehicle. BK’s testimony during examination-in-chief and cross-examination was provided in a direct and forthright fashion and was internally consistent throughout. BK testified he was aware of the “speed trap” in the area, he “always” sets the vehicle’s cruise control to 47 or 48 km/hour “right on the steering wheel” when he turns on to Avenue Road and he did so on August 15, 2021, and the motor vehicle passed a safety test one year prior to the alleged offence date. BK added the vehicle is equipped with an analog speedometer, which does not display a numeric rate of speed and the needle points to “around 45 km/hour”. When asked if he was cognizant of the speed during the date and time of the alleged offence, BK testified he knew he was “going below 50 [km/hour]” and just “did not know if it was 45 or 47 [km/hour]”. BK added he had a distinct recollection of the date and time of the alleged offence as, on that date, he took a nap, woke up rested, and then went to retrieve a canopy from his office and was on his way to his girlfriend’s home to deliver the canopy for a bridal shower scheduled later that morning.
The prosecution was provided with an unimpeded opportunity to cross- examine BK, yet the credibility of his testimony was not diminished and remained unequivocal and consistent throughout. I note the prosecution submitted BK changed his testimony going to the speed he set the vehicle’s cruise control to prior to turning on to Avenue Road. However, BK’s testimony was consistent that he “always” sets the vehicle’s cruise control to 47 or 48 km/hour “right on the steering wheel” when he turns on to Avenue Road and he did this on August 15, 2021. As well, and as I mentioned during the hearing, this alleged inconsistency was not put to BK during cross-examination for an explanation. I also accept the defence’s submission that, with an analog speedometer, it is difficult to ascertain the exact speed of a motor vehicle based on where the speedometer needle is pointing and this is consistent with BK’s testimony he was unable to say if the vehicle was travelling 45 km/hour or 47 km/hour during the material time.
The prosecution put to BK if there was an agreement between himself and his mother about who would pay the associated fine in this matter, should there be a conviction. BK testified there was no such discussion and were I to find otherwise, such finding would be based on pure speculation or conjecture or, equally erroneously, on no evidence. Second, a decision maker cannot infer guilt by simply finding a defendant’s evidence is not worthy of belief. This inference is only permitted where there is independent evidence of fabrication or concoction, which is not the case here—where we simply have two different versions of the events. Third, were I to find that BK’s testimony was self-serving as the prosecutions question suggests, this can lead to the appearance that I suspect BK’s testimony was inherently unreliable since it would be advantageous for him to misrepresent events in order to have the charge dismissed and not have to pay a fine. This is a serious error of law. Disbelieving the defendant or their witness because of their self-interest to be found not guilty is a reversible error. I should also note in this regard BK’s testimony on examination-in-chief and on cross-examination was provided in a spontaneous fashion and I did not note any hesitation in his answering questions to, perhaps, formulate answers favourable to his version of events.
Lastly, BK’s explanation going to what took place during the material time, as more fully outlined above, and why the the motor vehicle was not being operated at a rate of speed in excess of the posted speed limit, contained adequate detail to be considered plausible. For all of the stated reasons, I am unable to reject BK’s testimony.
When I consider the defendant's exculpatory evidence, which was not in any way shaken through cross-examination, in the context of the collective effect or nature of the frailties in the prosecution’s evidence as outlined above in connection with Officer Powers’s testimony, I am left with a reasonable doubt as to the defendant’s guilt. This is not to say I am choosing to accept the defendant’s evidence over the prosecution’s evidence, rather, based on the entirety of the evidence presented, I am left with a reasonable doubt as to the defendant’s guilt. In other words, the defendant's exculpatory evidence, in the context of the evidence as a whole, has left me in reasonable doubt as to whether the defendant’s vehicle was travelling at a rate of speed greater than 50 kilometres per hour on the date and time at issue.
In this regard, I am guided by Regina v. Edwards, 2012 ONSC 3373, [2012] O.J. No. 2596 (Ont. S.C.) at para. 20, where Code J. defined the second branch of the R. v. W.(D.) instruction succinctly 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’…” In this case, I am not able to resolve the conflicting evidence, and while I do not completely accept the defendant’s evidence, I am not able to reject it. It is sufficiently credible to leave me in a state of reasonable doubt as to whether the defendant’s vehicle was travelling at a rate of speed greater than 50 kilometres per hour as charged.
I am further guided by Kenkel J.’s recent pronouncements in York (Regional Municipality) v. Iagolnik, 2022 ONCJ 318, involving a charge of speeding contrary to section 128 of the HTA, where at trial the prosecution’s case was tendered by way of a certified statement of evidence under s 48.1 of the Provincial Offences Act, RSO 1990 c P.33 and the defendant did not call evidence. At paragraph 27, Kenkel, J. stated as follows:
The minimal certified statements are plainly vulnerable to challenge. Evidence that may leave a doubt in this context might be as simple as the sworn testimony of the defendant that is accepted or survives cross-examination to the extent that it leaves a doubt – S. Hutchison, D. Rose, P. Downes The Law of Traffic Offences, 4th ed Toronto Thomson Reuters 2018 at 152. The lack of context to the brief assertions in the Certificate of Offence provides little support when that evidence is challenged by evidence to the contrary.
- As the prosecution has failed to prove all the essential elements of the subject absolute liability offence against the defendant beyond a reasonable doubt, I must find the defendant not guilty of the offence and the charge of speeding, in particular 121 km/hour in a posted 50 km/hour community safety zone, contrary to section 128 of the HTA, is dismissed.
Released: December 1, 2022.
Signed: Justice of the Peace Roger Rodrigues