r v. ROBERTO, 2012 QCCQ 9142

Director of Criminal and Penal Prosecution c. Pincin 2012 QCCQ 9142 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CITY OF MONTREAL CRIMINAL AND PENAL DIVISION No: 500-61-271809-098 DATE : October 12, 2012 PRESIDING : MADAM SUZANNE BOUSQUET PRESIDING JUSTICE OF THE PEACE DIRECTOR OF CRIMINAL AND PENAL PROSECUTION Prosecutor v.

ROBERTO PINCIN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Roberto Pincin was driving a shuttle bus to Trudeau Airport on June 20 2009 at about 09:45 when agent Spyro Zachakos, a member of the airport patrol, stopped him for speeding and charged him with an offence to

section 329 of the Highway Safety Code , R.S.Q., c. 24.2, and to

section 2 of the Traffic on the Land Side of Airports Regulations (DORS/06-102). [ 2 ] The defendant's trial started on April 18 2012. On that day, the Court heard the testimony of Agent Zachakos, for the prosecution. [ 3 ] Agent Zachakos testified that he is a qualified radar operator since May 7 2009. On J une 20, 2009, he was operating an LTI 2020 Marks laser speed-measuring device, which he had tested before and after his intervention and found to be in good working order. [ 4 ] He saw the defendant's vehicle, a white GMC Savana, as it was heading towards the airport on Roméo-Vachon Road.

He estimated its speed at 61 kilometers per hour (kph) in a posted 30 kph zone. At a range of 149,1 m, he obtained a reading of 61 kph on his laser device. [ 5 ] He also testified that there are two signs on the road leading to the airport indicating that the maximum speed is 30 kph. Both signs were visible and non-obstructed.

He was standing at 185,1 m from the second sign when he clocked the speed of the defendant's bus. [ 6 ] According to the statement of offence written by agent Zachakos and submitted as evidence under P-1, the offence was committed at 09:45 and the ticket was delivered at 09:50. [ 7 ] On cross-examination, agent Zachakos admitted that there are many other shuttles passing on that road in the morning, mostly white GMC Savanas. He also admitted that there could have been other shuttles passing the defendant's bus as its speed was being

clocked. [ 8 ] Mr. Robert Pincin also testified on April 18 2012. He explained that he has been a shuttle bus driver for the past 10 years and that he was not driving at 61 kph when he was stopped on June 20 2009. [ 9 ] He further explains that his employer monitors all his drivers through a GPS monitoring system. After the incident, he immediately advised his supervisor and asked him to consult the system and, sure enough, he was not driving at 60 kph at that date, place or time. [ 10 ] Mr.

Pincin asked to submit as evidence a printout generated by the monitoring system and given to him by his fleet manager, but the prosecutor objected to the production of the document. The Court ordered a postponement to June 18, 2012, giving the defendant the opportunity to assign his manager to testify on his behalf. [ 11 ] On June 18, 2012, due to the number of cases on the docket, the Court ordered a second postponement to October 1 st , 2012. [ 12 ] On October 1 st , Mr. Asif Assed testified for the defendant. He explained that he is the manager at the hotel where Mr.

Pincin works and that he printed, from the monitoring system's computer, the report submitted as evidence under D-1. [ 13 ] Reproduced below are excerpts from this document dated 26/06/2009 and entitled Rapport d'historique - Version imprimable , showing the data captured from 09:36:17 until 09:53:29. (...) 605 Robert Pincin Début du déplacement 2009-06-20 09:53:29 21 O Dans le site: Dorval Airport 605 Robert Pincin Fin du déplacement 2009-06-20 09:52:40 Dans le site: Dorval Airport 605 Robert Pincin Début du déplacement 2009-06-20 09:49:52 26 N Dans le site: Dorval Airport 605 Robert Pincin Fin du déplacement 2009-06-20 09:45:33 Dans le site: Dorval Airport 605 Robert Pincin Position à intervalle de temps 2009-06-20 09:41:51 88 SO AUT-520, DORVAL,QC (intersection la plus proche de 1) 605 Robert Pincin Début du déplacement 2009-06-20 09:36:18 14 S Dans le site: HOTELS 605 Robert Pincin Moteur en marche 2009-06-20 09:36:17 Dans le site: HOTELS [ 14 ] Commenting this data, Mr.

Asif explained that number 605 in the first column corresponds to the last three digits on the license plate of Mr. Pincin's shuttle. He further explains that numbers 14, 88, 26 and 21 in the fifth column indicate kph.

[ 15 ] The report thus shows that, at 09:41:51, Mr. Pincin was driving at a speed of 88 kph on autoroute 520, as he was heading towards the airport. It also shows that, at 09:49:52, he was driving at a speed of 26 kph in the vicinity of the airport. According to Mr. Asif, Mr. Pincin was also driving at a speed of 26 kph at 09:45:33, even though the report gives no indication of his speed at that exact time. " It's the same ", he simply tells the Court. Question in issue [ 16 ] Does this GPS reading raise a reasonable doubt that the defendant was driving at a speed of 61 kph in a 30 kph zone ?

This is the question in issue in this case. [ 17 ] The defendant argues that it does. [ 18 ] The prosecutor, on the other hand, argues that the GPS monitoring system used by the defendant's employer does not measure the speed of vehicles at all times. Because the report does not indicate the speed of the defendant' shuttle at 09:45, the time of the alleged offence, it does not reverse the presumption of accuracy and reliability of the laser speed-measuring device.

Analysis [ 19 ] In this case, there is prima facie evidence that the speed of the defendant's vehicle was measured by a qualified radar operator using a laser speed-measuring device in good working order. Consequently, as per the decisions rendered by the Quebec Court of Appeal in Ville de Baie-Comeau c. D'Astous [1] and Ville de Joliette c. Delangis [2] , the Court relies on a presumption of accuracy and reliability that the defendant can rebut with evidence to the contrary. [ 20 ] In DPCP c.

Antonacci [3] , a recent decision of the Court of Québec confirmed by the Superior Court, Justice Johanne White came to the conclusion that a GPS speed-reading alone does not constitute evidence to the contrary likely to raise a reasonable doubt. The Court agrees entirely with her decision, of which excerpts are reproduced below. [28] The Global Positioning System (GPS) is first and foremost a geolocation system. Persons using such a system can determine their current location and how to get where they wish to go. [29] In P.G.Q v.

Robitaille, the Court of Appeal says the following about the use as evidence of commonly used objects: [4] If it were necessary in every speeding case to prove that the odometer was in good working order, we would also have to adduce expert evidence regarding the accuracy of a watch every time we had to prove the time of an event and to call upon experts to prove that a measuring tape or a ruler was in perfect condition every time we wanted to measure the distance in feet or inches from one object to another, etc. [ translation ] [30] In the examples given by the Court of Appeal, a watch is, in fact, designed to show the time, a ruler, to measure distance, and a speedometer, to measure the speed of a vehicle.

The primary function of a GPS, however, is not to establish the speed of a vehicle. [31] The Court therefore believes that the Court of Appeal’s comments regarding everyday objects cannot be applied to the GPS since, unlike the examples given by the Court, its primary function is not that which the defendant seeks to introduce. [32] This was also the conclusion reached by the Superior Court in Sarto Landry v. Director of criminal and penal prosecutions : [5]

[16] Now, the trial judge, noting that the appellant had no expert to prove the reliability of his Garmin GPS unit, granted an adjournment to allow him to find one. [17] However, when the inquiry resumed, the Court refused to recognize the mechanical engineer as an expert witness, considering his lack of expertise with the Garmin GPS unit and, during the appeal hearing, the appellant went so far as to criticize the trial judge for not allowing him to find another expert. [18] Therefore, failing to accept the fact that the appellant’s two speed-measuring instruments were themselves evidence to the contrary, the trial judge rightly rejected that defence. [ translation ] [33] The reliability of the defendant’s GPS, as a speed measurement device, along with its proper functioning, were not entered in evidence.

Under these circumstances, we can hardly conclude that a mere GPS speed reading constitutes evidence to the contrary capable of raising a reasonable doubt. [ translation ] [ 21 ] Not only is a GPS monitoring system not recognized as a speed-measuring-device constituting evidence to the contrary, but also, in this case, the testimony of the defendant's witness adds no probative value whatsoever to the evidence already adduced.

As for the defendant, he merely denies the offence, offering no other real evidence. [ 22 ] FOR THESE REASONS, THE COURT : [ 23 ] FINDS THE DEFENDANT guilty of the offence held against him ; [ 24 ] CONDEMNS THE DEFENDANT to pay the minimum fine of 135 $, without the trial costs, the defendant's case having been postponed on June 6, 2012 because of affluence on the docket ; and [ 25 ] GRANTS THE DEFENDANT a delay of three months to pay. __________________________________ SUZANNE BOUSQUET, Presiding Justice of the Peace Me Anik Archambault For the prosecutor Mr. Roberto Pincin Representing himself

Dates of hearing : April 18 and October 1 st , 2012