R. v. Corporation Gardaworld Services Transport de Valeurs Canada, 2023 BCPC 271

Citation: R. v. Corporation Gardaworld Services Transport de Valeurs Canada 2023 BCPC 271 Date: 20231205 File No: ST05684916-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. CORPORATION GARDAWORLD SERVICES TRANSPORT DE VALEURS CANADA / GARDAWORLD CASH SERVICES CANADA CORPORATION ORAL REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE N. CEDERBERG Appearing for the Crown: Officer A. Mehta Appearing for the Defendant: O. Ay Place of Hearing: Vancouver , B.C. Date of Hearing: September 22, 2023 Date of Judgment: December 5, 2023

BACKGROUND [ 1 ] The disputant, Gardaworld Services Transport de Valeurs, et al, is charged as a registered owner with violating the provisions of s. 129(1) of the Motor Vehicle Act . In this case, the alleged offence was captured via a red-light camera, located at the intersection of Kingsway Street and Royal Oak Avenue in Burnaby, British Columbia, on July 29, 2022. [ 2 ] At issue in these proceedings is whether the vehicle depicted in the images could be proven beyond a reasonable doubt as one belonging to the disputant.

SUBMISSIONS AND EVIDENCE OF THE CROWN [ 3 ] In support of its case, Crown submitted into evidence two certificates; namely, a Certificate of Enforcement Officer attaching four images of a vehicle captured on the subject date and a Vehicle Owner Certificate identifying the disputant as the owner of a vehicle. In the former, Officer T. Weseen certifies that the licence plate depicted was issued in the Province of British Columbia. [ 4 ] During the proceedings, I advised Crown that it was impossible to make out the jurisdiction of the licence plate reflected in the images.

I was prepared to accept the plate number, although upon closer scrutiny, one of the alphanumeric digits is arguably either an "I" or a "1". I cannot determine the make or model of the vehicle. The Vehicle Ownership Certificate refers to a blue vehicle, but the one depicted in the four images appears to be white.

Writing on the vehicle appears to spell out the name of the disputant, but the images are fuzzy and specifics, particularly and importantly regarding the originating location from where the plate was issued, are indiscernible, in my view. [ 5 ] In response to the concerns raised regarding the quality of the images, Crown provided written submissions which, at their heart, argue points related to the totality of the evidence: by not accepting the reviewing officer's certification that the images provided are those of a vehicle belonging to the disputant, I would be speculating on an alternative plate identity. [ 6 ] I reject these submissions.

SELF-REPRESENTED DISPUTANTS [ 7 ] The disputant, represented by Mr. Ozgur Ay, did not have counsel. At trial, a trier of fact has a duty to assist a self-represented litigant in order to provide a fair and impartial process and prevent unfair disadvantage to self-represented parties. (See: Rahman v. Windermere Valley Property Management Ltd., 2022 BCCA 258 ) [ 8 ] At the conclusion of the Crown's case, I invited Mr. Ay not to carry out cross-examination or lead any testimony. At the outset of trial, Crown advised the court that Mr. Ay was the driver of the vehicle at the time of the alleged offence.

That piece of information was not properly advanced, nor did I accept it as evidence before me. I was not prepared to allow the Crown an opportunity to elicit any evidence from the disputant to fill in gaps in its own prosecution. [ 9 ] In red light camera cases, the Crown is afforded an extraordinary means of proving their case. In these instances, disputants have no opportunity to explore options otherwise provided when roadside violation tickets are issued. There is no chance to enter into discussions with peace officers who may be encouraged to exercise discretion at the time of the alleged offence.

No explanation can be provided by a driver in a timely manner when the event is fresh and recollection is clear. The ability to recall and recreate events, which might assist a disputant in formulating a plausible defence, is affected by the timing of the event and the later issuance of the ticket. There is no immediate notification. [ 10 ] I am mindful that allegations associated with a relaxed evidentiary burden are to be strictly interpreted in favour of the accused. (See: R. v. Noble, 1977, CanLII 169 (SCC) [1978] 1 SCR 632 ; R. v. Pearce, [2000] B.C.J. No. 451 , R. v. Smith , [1998] B.C.J.

No. 302 ) ANALYSIS OF CROWN EVIDENCE AND SUBMISSIONS [ 11 ] The Crown says that the court must consider the totality of the evidence which includes the photographic evidence and certificates together. [ 12 ] The author of the certificate was not present at trial. To expect disputants to seek disclosure and avail themselves of a subpoena for a certificate's author, or to presume Crown will produce the author in every red-light camera prosecution is untenable and/or unrealistic. The reality is that usually the certificate author is not present for lead or cross-examinations.

The trier of fact then reviews the information certified by the Officer and takes their own view of the evidence. It would not be appropriate to blindly accept what an Enforcement Officer has provided by way of a Certificate which is essentially a certified opinion, an

interpretation of the photos. [ 13 ] If it were the case that the court should simply accept without scrutiny the views of the Certificate Officer, then why provide any photos at all? An evaluation by the court of the photographic evidence is necessary to come to independent conclusions in keeping with the role of the trier of fact. [ 14 ] This form of prosecution has been addressed in analogous speeding camera cases where the identity of the jurisdiction of a licence plate is based solely on the

interpretation of photographic evidence. The trier of fact is permitted to take an independent view of that evidence to determine whether the jurisdiction alleged to be reflected in the images has been proven beyond a reasonable doubt. (See: R. v. Benias, 2000 BCPC 198 ; R. v. Tsang [1998] B.C.J. No.1216 ) [ 15 ] Similarly, where the identity of an accused relied on imaging in the form of videotape, the question of whether the videotape

alone could provide the necessary evidence to enable a trier of fact to determine identity is answered in the affirmative. The degree andclarity and quality of the tape will all contribute to establishing the weight which a trier of fact may properly place upon the evidence.(See: R. v. Nikolovsky, (SCC), [1996] 3 SCR 1197). [16] I find that the entire prosecution flows from the images. The Enforcement Officer relies on them in order to certify that the platewas issued in British Columbia.

The photos are integral to the Crown's case and the disputant, along with the court, has the right to pointout and consider discrepancies on all the evidence, which includes the photos. Given the trier of fact is entitled to take an independentview of photographic evidence, I find the photos alone raise a reasonable doubt as to the testator's ability to make the claims contained inthe Certificate. In turn, the evidence provided through the Vehicle Owner Certificate is then called into question.

To address Crown'ssubmission regarding the totality of the evidence, taken together or on their own, all are deficient, in my view. [17] As to Crown's submission that it is simply speculation or a failure by the trier of fact to employ common sense to conclude that avehicle of the same make, model, colour, and year is registered in another jurisdiction with an identifiable plate number, I say that itwould be equally, if not more speculative, to assume the images in question reflect a B.C. licence plate. I neither heard nor was providedwith evidence as to plating production or design for the province.

I saw no evidence related to the assignment of plates in general, orspecifically with respect to the disputant. I do not know if Gardaworld is an entity confined to operating solely in British Columbia (itsname suggests otherwise) or if there is a fleet of vehicles which may have received sequential plates. I was not presented withalphanumeric (or syntax, per J.J. Hayes’ ruling in R. v.

Vershinin, 2022 BCPC 128) practices for neighbouring provinces and states inorder to rule out alternative origin possibilities and make identification per the Certificate more likely. [18] It seems to me the ability to meet the burden of proof imposed on Crown in these matters is easily accomplished through theprovision of clear images. These certainly were not furnished in this case. The extraordinary means of proof allowed by the legislationfor prosecutors in camera cases supports a concomitant level of scrutiny of the evidence to ensure fairness to the disputant.

FINDINGS [19] This Court must be satisfied as to the identity of the vehicle to make a finding that an essential element of the offence has beenproven. I find, as a matter of fact, that the Crown has not established that the disputant is the owner of the vehicle captured by thephotographic evidence presented. [20] The disputant is acquitted of the charge. (REASONS CONCLUDED)