R. v. Giraud, 2021 BCPC 228

Citation: R. v. Giraud 2021 BCPC 228 Date: 20210923 File No: AJ06022769-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAMON JAY MERCREDI GIRAUD REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE S. JOSEPH-TIWARY Appearing for the Crown: Cpl. J. Stables Appearing for the Defendant: B. Moscoe Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: February 19 and June 18, 2021 Date of Judgment: September 23, 2021 [ 1 ] Mr. Giraud is charged with excessive speeding on or about the 26th of May, 2019 at 11:15 am on E 1st Ave and Lillooet Street

in Vancouver, British Columbia. The Crown Evidence [ 2 ] Officer Stables testified relying on notes which he said were made at 11:37 am on the violation date. Counsel took no objections other than confirming that the officer had exhausted his memory. The trial proceeded. Crown did not tender the notes as an exhibit. It is not a part of the record. [ 3 ] Officer Stables was entering Highway 1 from the Hastings onramp when he came upon a street bike ridden by the disputant go past him on the highway. He visually estimated it to be travelling at 160km/hr.

It is his evidence that the location is signed 80km/hr, maximum speed. The officer utilized a radar to obtain a reading of 158km/hr. Following a traffic stop and identity confirmation of Damon Jay Mercedes Giraud, the rider of a grey bike RSV4RR bearing BC plate Y32802 received a ticket. The officer testified to the events having occurred at 8:05 am. [ 4 ] The officer said he is both radar and laser qualified. He can visually estimate the speeds of moving vehicles within a margin of error of plus or minus 5 km/hr.

He told the Court he visually estimates speeds daily in the course of his duties and has for the last 6 years conducted annual self-checks to ensure that he is maintaining his margin of error. Officer Stables testified to checking the radar device at 6:15 am on the 26th of May. He said it was working. In cross-examination, he explained that as part of a routine regime, at the start of his shift, after radar checks verification, the cruiser’s speedometer reading is compared to that displayed on the radar unit as patrol speed.

The radar is tested at the end of his shift too. [ 5 ] The officer was firm that visual was not lost as he followed the rider, who took the 1 st Avenue off ramp. When cross-examined, he also explained that the driver changed to the far right lane of the highway, thus giving him a good visual for speed estimating. [ 6 ] In support of his viva voce evidence, Officer Stables also tendered and relied on a video recording of the events. The video had been disclosed to defence. Defence took no objections to the video. It was marked as an exhibit. It depicts the officer on a ramp prior to entering the highway.

The bike rider goes past him on the highway and moves to the right with the officer following. Pointing to a 163km/hr speed displayed on screen, he explained the speed shown is that of his cruiser’s GPS as he attempted to catch up with the bike rider. The rider also exits the highway and makes other lane changes. [ 7 ] Defence counsel cross-examined as to the operation and testing of the radar device utilized referencing and reading from a manual of the device used. Crown acknowledged that the manual used was that of the device operated that day.

Identity, jurisdiction and speed limit are not in dispute. [ 8 ] At the end of the Crown case, the defence chose not to call rebuttal evidence. Defence Summations [ 9 ] Defence argues that there is a substantial difference in time to the 11:15 am alleged in the violation ticket and the officer’s testimony in Court relying on his notes to say that it occurred at 8:05 am. Defence maintains this raises officer credibility issues particularly when viewed in the light of his cross-examination and seeks a dismissal of the charge. [ 10 ] He relies on R. v.

Seraji , 2020 BCSC 1417 , where in paragraph 61 of the decision, The Honourable Justice Williams says: “[61] Thus, in the matter at hand, to prove the respondent guilty of the offence of excessive speeding, the prosecution was required to prove that he was driving the motor vehicle at the time and location alleged in the violation notice, that the lawful posted speed limit was 30 km/h, and that he was travelling at a speed of 71 km/h or more.” (emphasis my own) The Crown Video Evidence [ 11 ] The Crown video of the incident displays the date of the enforcement as May 26, 2019, with a time stamp of about 11:14 am.

The video depicts the officer’s cruiser approaching a highway prior to merging and following a street bike rider with the cruiser speed increasing. This is consistent with the date and time specified on the violation ticket. There was no cross-examination of the time discrepancy between the time stipulated on the ticket and that provided in the officer’s viva voce evidence. Defence raised the time inconsistency in summation alone.

The notes not being entered as an exhibit, it is not clear if the officer misspoke. [ 12 ] The unchallenged video exhibit shows the officer’s cruiser following the bike from the highway to exit the highway. The rider ultimately stops on Lillooet as per the officer’s testimony. The highway markers as the officer followed the rider corroborate Crown’s version of the events and the location of the violation. The licence plate number of the bike in the video is Y32802 as shown on the ticket.

It corroborates the officer’s testimony from his notes as to the events that transpired the day of the violation and evidences that the time of the offence indicated on the ticket is correct. [ 13 ] The rider produced identification to the officer and further confirmed his name ‘Giraud’ roadside. The officer informs the rider that he obtained a radar reading of 158 km/hr of the bike and that the speed limit is 80km/hr.

The video entered by crown is corroborative of the officer’s evidence given from his notes as to the event in material aspects. [ 14 ] Significantly, there is no challenge to the officer’s version of the events on the highway, including the service of the ticket on the disputant. Defence cross-examined the officer on the radar reading and his speed estimation alone. I find that the officer‘s testimony from his notes to be a credible account of what transpired on or about 11:15 a.m. on the violation date.

The video places the target bike ridden by the disputant as well as the officer at the material locations. [ 15 ] It follows that the officer either misspoke or perhaps, made a clerical error in his notes. Somewhat, also insightful is

Section 100 of the Offence Act , which deals with amendments to an information. Subsection (4) therein provides that a “variance between the information and the evidence taken on trial is not material with respect to the time when the offence is alleged to have been committed, if

it is proved that the information was laid within the prescribed period of limitation”. Defence here did not challenge service roadside orthe date of the violation. Case Law [16] In R. v. Keenan, (BCSC) found that: “In order to conclude that a radar device registered an accurate speed, it must only be shown that the operator of the device knew how tooperate the device, and that it was operating properly.” [17] The Court also found that defence reliance on requiring proof of the accuracy of the tuning fork is not necessary as Regina andBourque (April 16, 1986) Doc. No.

Calgary Appeal 17925 (Alta C.A.) had overruled the decision relied on. It is noteworthy that BritishColumbia has no legislation requiring proof of the accuracy of tuning forks as in some other jurisdictions such as Saskatchewan. [18] In 1999, Justice McEwan of the BC Supreme Court in R. v. Khadikin, Nelson Registry Docket No 1102 said a conviction “maybe” entered on the evidence of data obtained from a radar speedometer, where there is evidence that the equipment was in good workingcondition and properly used.

He also ruled that radar readings, if not rebutted or weakened to the point that a reasonable doubt is raised asto their accuracy, can “found a conviction”. [19] The BCSC in R. v. Scherbey, 2017 BCSC 1638, overturned a conviction. A manual before the Court for a related unit,recommended verification of performance characteristics on regular basis. In that case, additional challenges to the tuning forks used totest the device were also raised, which issues are not before this Court.

The Court found that effectiveness of the officer’s testing of theunit he used is predicated on the need for regular verification called for in the other device manual and that there were issues raised withthe tuning forks too. The Appeal Court found that the trier of fact had to consider if those issues raised a reasonable doubt. [20] In R. v. Pires, 2004 BCSC 159, the officer estimated the speed of the target vehicle as being between 70 to 75 km/hr in a 50km/hrzone. The defence on appeal argued that the Crown failed to lead evidence respecting the officer’s ability to estimate speeds. The Courtopined that:” …..

I do not think that the police officer’s own evidence that the vehicle appeared to be speeding requires evidence of aparticular expertise where the difference in speed is that large.” In that case Crown also relied on pacing evidence. [21] Similarly in a more recent decision, the British Columbia Supreme Court in R. v. Zargarian, 2013 BCSC 460, held that the officer’s opinion was credible in determining the speed at which the vehicle wastravelling. The appellant contended that the visual estimate of the speed of the appellant’s car by an officer was insufficient to supportthe conviction of speeding.

In paragraph 33 of the decision, the Court said: “The opinion evidence of the police officer was admissible. The weaknesses in his opinion were that the officer had no special trainingin estimating vehicle speeds, that it was night time, and that it was raining. I am not persuaded that the fact that the two vehicles weremoving toward each other in opposite directions adversely affected the officer’s opportunity or capacity to observe. It seems to me thatConstable 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 betweenthe officer’s 75 kph estimate of the speed of the appellant’s car, and the speed limit of 50 kph.” The Cross-Examination [22] Counsel cross-examined the officer referencing and reading parts of the manual entered as an exhibit. Defence produced no caselaw authority that requires the officer to have a thorough knowledge of the manual.

The cross-examination revealed some lack offamiliarity with the manual, more particularly in relation to the recommendations. [23] When queried as to recommendations made in the manual under “Periodic Calibration” for a verification of the performancecharacteristics on a regular basis, the officer provided a fairly detailed account of the testing conducted by him on the device. The testingprocess or procedures appear in the manual just following the periodic calibration paragraph.

When the question was repeated, he queriedif that was a reference to the self-test (also within the manual) done by the equipment every 10 minutes or so. When Counsel read in thefirst of the recommendations set out, that is, the transmitter frequency being within specification of licensed operating frequency, hisresponse was; “I can’t say. I can only state for which manner in which I was trained to check.

And that’s by basically using the radar orthe tuning forks and the self-check”. [24] With regard to the recommendation to verify that the unit indicates a correct speed plus or minus one mile per hour when readinga target of known speed, the officer explained that comparisons of the cruiser speedometer reading and that shown on the radar is donewhilst the radar is activated to verify the reading. He further said that in enforcing speed in the same mode as in the case before theCourt, radar speed verification is required.

He instinctively compares the cruiser speedometer reading with that displayed on the radar aspatrol speed to ensure they are the same. He does not record that. [25] With regard to the recommendation for periodic checks to verify that the unit’s ability to detect targets of good reflectivity fordistances of half a mile or more when set at the highest sensitivity, he responded; “I can’t say”.

However, when questioned as to themanual’s stipulation that the range sensitivity be set for different modes separately, he clarified he sets it at the highest or most sensitivesetting “4” for use in all modes to ensure a good range for all types of vehicles. He said that setting allows for the distinguishing anddetection by the device of smaller vehicles such as a motorcycle, travelling amongst other vehicles on the highway, and facilitates areading for the motorcycle.

That does speak to his awareness in ensuring good reflectivity when operating the device on the highway. [26] He reiterated in cross-examination to testing the device as per the manufacturer’s specifications and his training and to using thedevice in accordance with the manufacturer’s specifications within the manual. [27] At other points of his cross-examination, he responded to questions relating to patrol shadowing issues with responses consistentwith the manual such as having the use of a VSS cable to eliminate patrol speed shadowing issues in the cruisers he used. He responded

with explanations as to why interference issues were unlikely in the vehicle he used or with the unit used, confirming never having observed interferences in the vehicle he used. He further displayed an awareness of potential issues pointing out devices and a vehicle previously used where he had experienced interferences. [ 28 ] He displayed veracity in his evidence and was forthcoming. His volunteering that he is required to do two further tests when operating the radar in the same mode goes towards his forthrightness and reliability.

He instinctively ensures that the patrol car’s speed and that shown for it on the radar are the same. He spoke of being required to do a speed discrimination test, that is, travel slower and faster than the target to eliminate any speed discrimination. He said the second was not done in the matter before the Court due to the quickness of how the events transpired. The manual does not appear to reference speed discrimination when operating in the same mode.

Defence could not confirm that the speed discrimination requirement is in the manual. [ 29 ] The manual under the same lane moving mode the mode in which the device was utilized here directs performance of the tuning fork test. Significantly on page 21, under “Testing” the manual reads:”…………….. the following test procedures are recommended.

If the unit fails any of the test, it should be removed from service until the cause of the problem is corrected. ”(emphasis my own) It then goes on to recommend periodic calibration saying: “We recommend the following performance characteristics should be verified on a regular basis” followed by the three itemised characteristics referenced by counsel and referred to above. [ 30 ] The manual then itemises specific tests outlining the procedures and/or the desired result, that is, Power-on Self- Test, Internal Circuit Test, Automatic Self-Test, both Stationary and Opposite Lane Moving Mode Tuning Fork Tests and Same Lane Moving Mode Tuning Fork test. [ 31 ] On Pages 23 and 24, the manual takes cognizance of variations in practice as to the number of times it is tested, thus acknowledging policies differ.

It directs checking with the department.

When it comes to the Directional Target Moving Vehicle Test, the manual stipulates it “can be performed” as an additional check only. [ 32 ] It follows that besides some inconsistencies between the officer’s training and the manual’s recommendations and on operation, the manual itself gives more importance to the testing outlined, in that, if there is test failure, it mandates removal of the device, whereas other recommendations appear to be more in the form of suggestions such as the periodic calibration checks. [ 33 ] Significantly, on the evidence heard, the trained officer appears knowledgeable as to possible issues in operating the device.

He leaves the sensitivity mode at the highest for all modes and checks the setting when operating as this ensures a good sensitivity range for all vehicular types, thus facilitating the targeting or detection of even smaller ones. I have no reason to disbelieve him.

The manufacturer direction that the range settings be set separately for each mode does seem to be at odds with the officer’s practical experience. [ 34 ] Throughout his evidence, the officer was firm that he was confident and satisfied that the radar reading of 158km/hr accurately reflected the rider’s speed, having personally also estimated that speed at 160km/hr before utilizing the device . Analysis [ 35 ] On all the evidence heard, I am not convinced that Officer Stable’s credibility is in question.

There were no attempts to embellish his evidence either where there were differences in his practice from recommendations or on how he dealt with range sensitivity adjustments. He was able to explain his practices and said he relied on his training. He spoke in a forthright fashion to additional testing requirements when operating in the same mode, unreservedly admitting he could not accomplish one. [ 36 ] The trained officer tested the device both before and after his shift.

As at the date of the offence, he had been plying the highway between West Vancouver and Abbotsford for almost 7 years and is therefore familiar with highway speeds. It is somewhat difficult to envisage that with the opportunity to observe that the officer had, any false reading not commensurate with his observations was over- looked. That radar reading itself is also within the margin of error of his speed estimation abilities. At an objective level, that cannot be mere coincidence. There is a large margin between the speed limit and both the radar reading obtained and the speed estimate too.

The Court also had the advantage of observing a video of the incident where the bike’s momentum stood out as it proceeded on the highway and onto Avenue 1. The officer displayed awareness of issues likely to arise when operating speed devices. [ 37 ] Having said that, there is the matter that Officer Stables acknowledges that a required speed discrimination test in the mode used was not accomplished. It appears both logical and prudent, that when relying on his practical experience and training on use of the device that there should then be adherence to operating safeguards when gathering evidence of a violation.

His evidence that speed discrimination was a required test in the mode operated suggests that it was an operational safeguard. Conclusion [ 38 ] In view of the foregoing, it appears prudent having regard to the onus of proof being on Crown beyond any reasonable doubt and for justice to be seen to be done, to rely only on the second indicia of speed before this Court. The officer’s speed estimation evidence remained firm and was unshaken.

The bike passing him on the left went into the right lane ahead of him, giving him the opportunity to make observations, and he followed it. [ 39 ] That estimate of 160 km/hr placing the bike at double the speed limit evidences its fast momentum as it proceeded on the highway. Taking into account the officer’s margin of error, it was travelling between 155 to 165km/hr, that is, at the very least 75km/hr above the speed limit by an officer whose margin of error is within plus or minus 5km/hr of actual speeds.

The wide margin above the limit leaves no room for any reasonable doubt that the vehicle was travelling at more than 60km/hr above the speed limit and that the rider was speeding in the excessive range. In this regard, I rely on R. v. Zagarian . In fact, once the vehicle attained 121 km/hr, it would already have been in the excessive range. At any speed 141 km/hr or more, it was in the second tier of excessive speed. [ 40 ] In the case before me, the estimation evidence is all the more compelling in that the officer conducts self-checks to ensure that he maintains the accuracy of his margins of error.

No reasonable doubt was raised and there is also no evidence to the contrary before the Court. I find that Crown has here proven beyond a reasonable doubt the charge of excessive speeding in the second tier. I find the

disputant guilty beyond a reasonable doubt as charged. _____________________________ Judicial Justice S. Joseph-Tiwary Provincial Court of British Columbia