R. v. Hunter, 2012 ONCJ 537

COURT FILE No.: 09 2184 Citation: R. v. Hunter , 2012 ONCJ 537 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Repondent — AND — MARK HUNTER Appellant DECISION Heard at Windsor, July 19 th , 2012 Released: August 21, 2012 Bruce Coates ............................................................. for the Respondent Patrick Ducharme ......................................................... for the Appellant [ 1 ] Justice of the Peace Hoffman found that Mr.

Hunter guilty of the offence of driving his motor vehicle on 401 Highway while performing a stunt, namely driving at a rate of speed that was greater than 50 kilometres per hour over the posted speed limit, contrary to Section 172 (1) of the Highway Traffic Act. [ 2 ] Several grounds were listed in the Appeal. They essentially boil down to two arguments. That the verdict was unreasonable and cannot be supported by the evidence and that the Justice of the Peace failed to apply the W.D. test to the credibility assessment.

MISAPPREHENDED THE EVIDENCE AND ISSUE IN DISPUTE [ 3 ] At Paragraph 8 of the Reasons for Judgment, Her Worship stated: “From the outset, I am satisfied that the Prosecution has proved the incident occurred on the 31 st day of May, 2009 at the Town of Lakeshore. I am satisfied the Prosecution has proved the identity of the defendant. None of these elements was in dispute”. [ 4 ] The Appellant argued the last sentence cannot be supported on the evidence insofar as identity was very much in dispute throughout the trial. I have reviewed the transcript together with the Reasons for Judgment.

There can be no doubt that the Appellant questioned officer Ternovan about his ability to observe and maintain visual contact from the aircraft until such time as the ground enforcement officer could intercept the subject vehicle and with that I have no doubt that the reliability of that testimony would have been raised in submissions. [ 5 ] However, a careful review of the testimony together with the Reasons for Judgment satisfy me that the statement in the reasons for judgement indicating that “none of these elements was in dispute” was not an indication that the Appellant at any time conceded identity or accepted officer Ternovan’s opportunity and ability to make an accurate assessment of the situation and identify the Appellant’s motor vehicle.

In the beginning of her Reasons for Judgment, Justice of the Peace Hoffman addressed the burden of proof and the necessity of the prosecution to prove the elements of the offence beyond a reasonable doubt. She then reviewed the testimony of all the witnesses, including the appellants testimony and a witness called by him. It was only after considering the whole of the evidence and turning her mind to the burden of proof that she remarked “none of these elements...” namely, date, jurisdiction and identity wasto her mind “... in dispute”.

I believe the parsing of this sentence from the whole of the analysis causes the remark to be taken out of context. To my mind she was simply indicating that the elements of the offence, including the identity of the appellant, had been satisfied. REASONABLENESS - FINDING AS TO IDENTITY and SPEED

A) Finding as to Identity [ 6 ] The appellant argued that the finding as to identity could not reasonably be supported by the evidence. The Appellant subitted that because the officer was in a small plane flying at a high altitude above the 401 Highway managing a stop watch and making

notes and from time to time turning and twisting and even going upside down, that his opportunity to observe and maintain observationof the subject motor vehicle was compromised and unreliable. [7] The Reasons for Judgment reveal that the Justice of the Peace was satisfied with the officer’s evidence. I havereviewed his testimony and to my mind there was ample evidence to support that finding. The officer who testified was a passenger inthe Cessna Aircraft and was experienced in caring out his assigned duties in the OPP Aviation Program.

He himself had measured thehash marks located on the highway previously and was satisfied as to the distance between them, a necessary component to determiningthe motorist’s speed. He was a qualified observer with the aircraft program and received training which included the use and operationof the SC-88 stop watch. He described his activities that day and in particular the observation he made of the speeding car incomparison to other vehicles that were on the highway. The officer testified that he was able to make continuous observations as thevehicle traveled through three separate speed zones.

He recorded two separate rates of speed within two of those three zones anddescribed how he immediately and without losing sight of the vehicle, initiated radio communication with a designated groundenforcement officer, described as an interceptor, to identify the vehicle and maintained visual contact and radio communication until suchtime as the ground officer intercepted the vehicle. [8] There was sufficient and reliable evidence available to the Justice of the Peace to satisfy herself as to the element of theoffence concerning identity.

B) Finding as to Speed [9] The Appellant also argued that the verdict could not be reasonably supported because the evidence as to rate of speedwas not reliable. To this end, similar arguments were made having regard to the nature of the aviation officer’s activities.

It was arguedthat the officer’s ability to accurately record the speed by making accurate observations and manage the stop watch would have beencompromised; and, that the stop watch itself was not a reliable instrument for use to measure the rate of speed. [10] The record supports the finding made by the Justice of the Peace in her Reasons for Judgment. The officer testified inregard to his experience and methodology.

He explained the distance between the hash marks and how the stop watch was used tomeasure the time that it took for the vehicle to travel between the hash marks based on the time the front bumper intersects the initialhash mark to the point in time when the front bumper meets the second hash mark, being 500 metres apart. [11] The officer testified that he was not only familiar with the use of the stop watch and added that it was operating correctly.He indicated that he had previously personally measured the distance between the hash marks.

Moreover, the officer stated that he did acontrolled test earlier in the day in co-operation with the ground enforcement officer who drove at a speed of 100 kilometres per hourbetween the hash marks while Officer Ternovan measured that speed from his Cesna Aircraft with the benefit of the stop watch whilemaintaining radio communication with the ground officer to confirm the rate of speed. [12] The finding of the Justice of the Peace as to the rate of speed was reasonably supported by the evidence. THE FAILURE TO APPLY THE PRINCIPLE OF R. v. W.D.

TO THE EVIDENCE OF THE APPELLANT [13] The Appellant argued that the rejection of the Appellant’s evidence as to his rate of speed was conclusory and withoutanalysis. [14] The Reasons for Judgment reveal that Her Worship considered all of the testimony of the witnesses including the aerialofficer, the ground intercepting officer, the appellant and the friend and passenger who was travelling with the appellant that day. HerWorship then turned her mind toward weighing and considering the evidence. As to the testimony of the appellant, she rejected it.

Sheconcluded that he was lacking in credibility based on his assertion in his Examination-In Chief that he never travels over 130 kilometresper hour after it was revealed in cross-examination that he had been convicted on three prior occasions for travelling at speeds in excessof 130 kilometres per hour. [15] Counsel argued that her finding was in error because the testimony was taken out of context having regard to the fact theprior convictions for speeding was first raised in cross-examination and he offered an explanation.

The Justice of the Peace clearly turned her mind to the testimony and considered that evidence together with other testimony suggestingthat the Appellant was not being forthright, including the duration and close relationship the Appellant enjoyed with the passenger whowas called to testify on his behalf. A trial judge is not required to self instruct with word for word adherence to the W. (D.) guidelines. See R. v. J.H.S. 2008 SCC 30 , [2008] 2 SCR 152 at paragraph 13. Her worship provided reasons for not believing theappellant.

She had sufficient grounds and reason to reach the conclusion she did as to the Appellant’s credibility and in rejecting histestimony considered whether his narrative or any of the evidence adduced including the testimony of his friend and the prosecution’switnesses left her with any reasonable doubt. [16] Her Worship spoke about the burden of proof, went on to indicate that the actus reas had been proven beyond areasonable doubt and that the defence had not discharged its onus with respect to the defence of due diligence.

DISPOSITION OF APPEAL I am satisfied that the Justice of the Peace applied the appropriate standards for consideration in respect of the whole of the evidence andthe principles enunciated in R. v. W.D. and that the verdict reached was reasonable and supported by the evidence. The Appeal is herebydismissed. Released: August 21, 2012 G. A. Campbell