R. v Zargarian, 2013 BCSC 460

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v Zargarian, 2013 BCSC 460 Date: 20130318 Docket: 76386-1 Registry: Nanaimo Bahman Zargarian Appellant v. Regina Respondent Before: The Honourable Mr. Justice Halfyard On Appeal from the Judicial Justice of the Peace of the Provincial Court of British Columbia, file number AH71743837-1 Nanaimo Registry heard on the 19 th day of December 2012 Reasons for Judgment The Appellant represented himself: Babak Zargarian appeared on behalf of Bahman Zargarian Counsel for the Respondent: P. O’Neil, Articled Student Place and Date of Hearing: Nanaimo, B.C.

March 11, 2013 Place and Date of Judgment: Nanaimo, B.C. March 18, 2013 Introduction [ 1 ] This is an appeal by Bahman Zargarian from his conviction by a Judicial Justice of the Peace in Provincial Court at Nanaimo on December 19, 2012. The Judicial Justice (“the trial judge”) found the appellant guilty of speeding, contrary to s.146(1) of the Motor Vehicle Act . The relevant events occurred on August 27, 2012 at Nanaimo. [ 2 ] The ground of appeal is that the verdict was unreasonable or cannot be supported by the evidence.

In substance, the appellant submits that the evidence relied on by the trial judge was insufficient to support the conviction. More particularly, the appellant contends that the visual estimate of the speed of the appellant’s vehicle given by R.C.M.P. Constable Martin Mindel, was insufficient to support the finding that the appellant was driving a motor vehicle “at a greater rate of speed than 50 kilometres per hour.” [ 3 ] Constable Mindel testified for the Crown. The appellant testified on his own behalf. They were the only two witnesses.

The Evidence of Constable Mindel [ 4 ] I will summarize the evidence given by Constable Mindel in chief. [ 5 ] He had been a member of the R.C.M.P. since 2009. On August 27, 2012, at about 1:15 a.m., he was on traffic patrol in Nanaimo. He was driving his marked police car west on Third Street, toward the intersection with the Parkway. It was raining. He saw a vehicle driving down from the Parkway, travelling east on Third Street, towards him. The speed limit was 50 kilometers per hour (kph). [ 6 ] The vehicle did not slow down as it travelled towards him, and drove past him.

He visually estimated the speed of the oncoming vehicle to be about 75 kph. Constable Mindel activated his emergency equipment, made a u-turn, followed the vehicle, and pulled it over. The appellant was the driver of the vehicle. He issued a violation ticket to the appellant for speeding, with the ticketed amount of the fine being $138.00. [ 7 ] The officer had conversation with the appellant after pulling him over. He said he told the appellant that he had observed him to be travelling at a high rate of speed, over the speed limit.

He saw there were three passengers in the appellant’s vehicle, one in the front and two in the back. He thought that all three passengers were male persons. He said that the rear passenger appeared to be sleeping. [ 8 ] Constable Mindel testified that he had not received any training in the use of radar equipment until October 12, 2012. He said that during this training course, he also made visual speed estimates of 100 moving vehicles, and said that the accuracy of his speed

estimates was within 6 kph, plus or minus. [9] The appellant did not cross-examine Constable Mindel, but chose instead to tell his story under affirmation. I think he did thatat the trial judge’s suggestion, after having demonstrated that he was uncertain how to ask questions in cross-examination. The trial judgeproperly placed no weight on the fact that the appellant gave some conflicting evidence, without having first put any contradictorysuggestions to the police officer.

The Evidence of the Appellant [10] The appellant stated that the police officer never told him how fast the appellant’s vehicle had been travelling. He said thatthere were three passengers in his car, but one of them was female.

The appellant said that the officer referred to the area as being a“playground zone” but testified that there were only soccer fields and football fields in the area, not any children’s playground. [11] The appellant testified that the violation ticket states that he was travelling over 50 kph, but does not say what his alleged speedwas and he was critical of the method used by the police officer to estimate the speed of his vehicle as being 75 kph. He said the policeofficer (after pulling him over) did not tell him that he had estimated the speed of his vehicle by way of a visual observation.

He alsostated his view that it would be very difficult for the officer to estimate the speed of his vehicle, when it was night time, it was rainingand he was travelling towards the police vehicle. [12] In cross-examination (by Constable Mindel), the appellant again stated, in effect, that the police officer’s estimate was worthlittle when there was no other evidence to back it up. [13] The appellant said that the female passenger was in the back, and conceded that she may have been sleeping when the officerpulled him over.

He agreed that there were soccer fields, baseball fields, a high school ground and an ice centre alongside Third Street,east of the Parkway in the area he was driving in, or towards. [14] Under questioning by the trial judge, the appellant agreed that “everybody can estimate” the speed of a vehicle. But he againnoted that the two vehicles were travelling towards each other and that this would make an accurate visual estimate of speed verydifficult.

He again pointed out that it was night time and it was raining. [15] When the trial judge asked: “What is the reason you argue that I should not conclude that your vehicle was doing more than50?”, the appellant replied: “Because I believe I was not.” The appellant said he saw the flashing light on the police car turn on, justbefore he passed by the police car (5 or 10 meters away). He said the flashing light then went off, and he didn’t know if the policeofficer was signalling him or not.

He then saw in his rear view mirror that the police car had made a U-turn and was following hisvehicle, and signalling him to pull over. Reasons for Judgment [16] The trial judge first found that the speed limit in the area in question was 50 kph. He then identified the issue as being whetherit had been proved beyond a reasonable doubt that the appellant’s vehicle “was doing over 50” kph. [17] The trial judge noted that the police officer’s visual estimate of speed would have less weight than a speed that was measuredwith equipment especially designed for that purpose.

But he went on to express the opinion that when the visually estimated speed “ishalf again as much as the speed limit”, such an estimate would have increased reliability. It was implicit in the reasons that such a visualestimate, if accepted, could be sufficient by itself to support a finding that the speed limit had been exceeded. [18] The trial judge then referred to the appellant’s evidence, which was to the effect that he did not believe that he was going fasterthan 50 kph.

He then said that credibility did not appear to be an issue, but added that if it was, then, in effect, he found the police officerto be a credible witness. The trial judge then found the appellant guilty of exceeding the speed limit of 50 kph. Argument of the Appellant [19] On behalf of the appellant it is submitted that at the time of the alleged offence, the police officer had no special training thatwould enable him to make a more accurate visual estimate of the speed of a moving motor vehicle, than an ordinary person.

It was nextargued that the police officer had a poor opportunity to observe the appellant’s motor vehicle, in that it was night time, it was raining andthe appellant’s motor vehicle was travelling towards the police vehicle in the opposite direction. In addition, the appellant had testifiedthat he believed that he was not travelling over 50 kph. [20] Based on these facts, the appellant first argued that the police officer was not “qualified” to give a visual estimate of the speedof the appellant’s motor vehicle.

That argument implies that the trial judge should not have allowed the officer’s estimate as beingadmissible in evidence. This argument cannot succeed. Speed is one of the several subjects upon which non-expert witnesses may giveopinion evidence. See R v. Graat, (SCC), [1982] 2 S.C.R. 819 at p. 835. [21] The main argument of the appellant was to the effect that the police officer’s visual estimate of speed was so weak that the trialjudge should have concluded there was a reasonable doubt as to whether the appellant’s vehicle was travelling in excess of the speedlimit.

For these reasons, the appellant submits that the verdict was unreasonable or cannot be supported by the evidence. Argument of the Crown.

[ 22 ] In support of her submission that the appeal should be dismissed, Crown counsel referred the court to two cases in which visual estimates of speed given by police officers was admitted and relied upon. In R. v. Pires 2004 BCSC 159 , Mr. Justice McEwan dismissed the appeal of an appellant who had been convicted of speeding. In convicting the appellant, the trial judge had accepted the evidence of a police officer as to his visual estimate of speed, together with his evidence that he followed and clocked the appellant’s car with the speedometer in the police vehicle.

The Crown’s evidence was to the effect that the appellant had been travelling at 70 to 75 kph in a 50 kph zone. McEwan J. rejected the argument that the Crown had failed to lead evidence respecting the police officer’s ability to estimate speed. McEwan J. was of the opinion that the difference between the police officer’s estimate of the appellant’s vehicle speed, and the posted speed limit, was far greater than any margin of error to be expected in the speedometer of the police car.

He also expressed the view that the police officer’s own estimate of the vehicle speed did not require him to possess any particular expertise at making such estimates, because of the large difference between the estimated speed and the speed limit. The appellant’s argument that the verdict was unreasonable or not supported by the evidence was rejected. [ 23 ] In R. v. Soriano 2012 BCSC 889 , on an appeal from his conviction for speeding, the appellant argued that the verdict was unreasonable.

There had been evidence given by a police officer to the effect that he had followed the appellant’s car for several city blocks and had clocked him at 80 kph according to the speedometer in the police vehicle. The police officer had also stated that, in his opinion, the speed of the appellant’s vehicle was more like a highway speed than a municipality speed.

The officer had testified that he took a course in estimating speeds of moving vehicles and had made accurate estimates within a range of plus or minus 10 kph; and that he had been driving motor vehicles for about 20 years. [ 24 ] The appellant had testified at trial and gave evidence that he was travelling at the speed limit, 50 kph, and was in no rush to go anywhere. He said that he believed the officer gave him a speeding ticket because he had been rude to the officer. [ 25 ] Madam Justice Ross referred to the test for reviewing a verdict for reasonableness.

She described one well-known version of the test as being whether the trial judge could reasonably have reached the conclusion that the appellant was guilty beyond a reasonable doubt, on the evidence presented. She noted that the appellant believed that he was not speeding and that there was evidence which supported his belief. In dismissing this ground of appeal, Ross J. then stated: However, there was evidence to support the facts found by the Judicial Justice of the Peace. The decision cannot be said to be unreasonable or not supported by the evidence. Accordingly, this ground of appeal cannot succeed.

Discussion [ 26 ] I would first note that, in the two cases cited by Crown counsel, there was additional evidence of “clocking” the appellant’s motor vehicle using the speedometer of a police vehicle.

So those cases are different from the present case, in that here, the visual estimate of speed given by the police officer stands by itself, as the only evidence presented to prove speeding. [ 27 ] Crown counsel informed the court that she had been unable to find any reported case in which the visual estimate of speed by a police officer had been found to be sufficient, by itself, to support a conviction for speeding.

It was implicit in Crown counsel’s statement that she was also unable to find any case in which such visual estimate of speed was held to be incapable of proving a speeding charge. [ 28 ] There was no corroborating evidence (by clocking or by radar) to support Constable Mindel’s visual estimate of speed. The appellant testified that he believed that he was not exceeding the speed limit and that there were weaknesses in the officer’s opinion.

The question is whether it was unreasonable for the trial judge to have convicted the appellant on this evidence. [ 29 ] The trial judge did not clearly explain why the evidence of the appellant did not raise a reasonable doubt. It may have been because the appellant only stated his speed as being a “belief” and the trial judge thought there was no direct contradiction of the police officer’s evidence. [ 30 ] On the other hand, the trial judge may have accepted that the appellant believed he was not speeding.

But if so, it seems clear that he placed no weight on the appellant’s belief that he was not exceeding the speed limit. [ 31 ] The appellant did not suggest that he had been watching his speedometer and relied on its reading to estimate his speed. He did not state the belief that he was not speeding, in direct examination, or in cross-examination, but only after that, under questioning by the trial judge.

I am not persuaded that the trial judge committed any error in finding that the appellant’s evidence failed to raise a reasonable doubt. [ 32 ] The trial judge accepted Constable Mindel’s evidence that, in his opinion, the appellant’s vehicle was travelling at about 75 kph in a 50 kph speed zone. He found that evidence to be sufficient to support a finding that the appellant had been speeding, beyond a reasonable doubt. In reasoning to that conclusion, the trial judge expressly took into account one of the weaknesses in the police officer’s visual estimate (the lack of training in estimating speeds).

Moreover, the appellant’s evidence of other alleged weaknesses would have been fresh in the trial judge’s mind. [ 33 ] The opinion evidence of the police officer was admissible. The weaknesses in his opinion were that the officer had no special training in estimating vehicle speeds, that it was night time, and that it was raining. I am not persuaded that the fact that the two vehicles were moving toward each other in opposite directions adversely affected the officer’s opportunity or capacity to observe.

It seems to me that Constable Mindel would have a good opportunity to estimate the speed of the appellant’s car as it got close to him and then passed by, immediately beside him. But even assuming there was some further disadvantage in this situation, there was a great difference between the officer’s 75 kph estimate of the speed of the appellant’s car, and the speed limit of 50 kph. [ 34 ] A trial judge has the discretion to accept all, some or none of the evidence given by a witness. Here, the trial judge found that the appellant’s testimony failed to raise a reasonable doubt on the central issue.

He accepted Constable Mindel’s evidence and decided that it was sufficient to prove beyond a reasonable doubt that the appellant had exceeded the speed limit.

[ 35 ] When it comes to the ultimate decision of whether or not a disputed element of the offence charged has been proved to be true, beyond a reasonable doubt, there is no objective standard by which the sufficiency of the evidence can be measured. If evidence has been presented which, if accepted, could prove the disputed offence element, it is for the trier of fact to decide whether or not the evidence which it accepts, does prove the disputed element, to the criminal standard of proof. [ 36 ] In this case, the disputed element of the offence was whether the speed of the appellant’s vehicle exceeded 50 kph.

There was opinion evidence given by Constable Mindel to the effect that the appellant’s car had exceeded the speed limit of 50 kph. The trial judge found Constable Mindel to be a credible witness. In the absence of case authority to the contrary, I would hold that the police officer’s opinion as to the speed of the appellant’s vehicle, was capable of supporting the conclusion that the vehicle was travelling in excess of the speed limit of 50 kph. The trial judge found that Constable Mindel’s evidence did prove speeding, beyond a reasonable doubt.

It has not been shown that he made any error in reasoning to the conclusion that no reasonable doubt existed. [ 37 ] Even though the police officer’s opinion was not entitled to any greater weight than the opinion of a lay person, I think it was open to the trial judge to rely on the officer’s estimate of speed, and to decide that guilt had been proved beyond a reasonable doubt. Another trial judge, assessing the same evidence, might have concluded there was reasonable doubt on the central issue of whether the appellant had exceeded the speed limit.

But the weight to be accorded to the accepted facts is in the discretion of the trial judge who hears the evidence and observes the witnesses. [ 38 ] In my opinion, on the evidence presented, the trial judge could reasonably have reached the conclusion that the appellant was guilty beyond a reasonable doubt. It follows that the appellant has failed to show that the verdict was unreasonable or not supported by the evidence. Disposition [ 39 ] The appeal is dismissed. “Mr. Justice D.A. Halfyard”