Her Majesty the Queen - v. –, 2014 SKPC 086

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 086 Date: April 17, 2014 Ticket No: 7892104 Location: Pierceland Between: Her Majesty the Queen - and – Transgas Ltd. Appearing: Gregory Piper For the Crown Kelly Daschuk For the Accused Judgment M. F. Martinez , J [ 1 ] Transgas Ltd. is charged with the offence of driving faster than 60 kilometres per hour when passing highway workers or occupied highway equipment within a work zone. The offence is alleged to have occurred on September 5, 2013, on Highway 55 near Peerless, Saskatchewan. [ 2 ] Subsection 203(1) of The Traffic Safety Act governs the offence: Speed limits when passing highway workers 203

(1) No person shall drive a vehicle on a highway at a speed greater than 60 kilometres per hour when passing:

(

a) a highway worker or flag person; (

b) any highway equipment occupied by a highway worker, whose presence on the highway is marked in the manner determined in the regulations made by the board; or (

c) any highway equipment on a highway that has its ministry issued warning lights in operation, whether it is in motion or not. [ 3 ] Transgas Ltd. is not charged as the driver of the vehicle but as its registered owner.

Section 273 of The Traffic Safety Act makes the registered owner liable for the driver’s misconduct when the vehicle is driven by anyone who has the owner’s actual or implied consent to do so. [ 4 ] Recent legislative amendments allow the Crown to prosecute a contravention of subsection 203(1) of the Act without calling any witnesses ( The Traffic Safety Act , S.S. 2004, c. T-18.1,

section 259.1 and The Traffic Safety (Speed Monitoring) Regulations , c.

T- 18.1 Reg 10, sections 4 and 5) [ 5 ] Consequently, the Crown’s evidence consisted of the following documents: 1. a photograph of the offending vehicle taken by a speed monitoring camera showing the date and time the photograph was taken and the speed of the vehicle when the photograph was taken, which in this case was 74 kms/hr, 2. the affidavit of Bradley George Christensen, the person who tested, deployed, and operated the speed monitoring device, 3. a certified SGI Motor Vehicle Division search result confirming that Transgas Ltd. was the registered owner of the vehicle on the date of the alleged offence, and 4. affidavits of service confirming service of the

Summary Offence Notice, the photograph, Mr. Christensen’s affidavit, and the SGI Motor Vehicle Division search. [ 6 ] The Act allows the accused to ask for an order requiring Mr. Christensen to attend for the purpose of cross-examination, but it did not do so. [ 7 ] Kelly Daschuk testified on behalf of Transgas Ltd. [ 8 ] Mr. Daschuk testified that he is an employee of Transgas Ltd. and that on September 5, 2013, he was driving the vehicle in question. He said he drove from an adjacent road onto Highway 55. Mr.

Daschuk said that he did not pass any highway workers or highway equipment until he came upon a flag person. When Mr. Daschuk encountered the flag person, he stopped the vehicle until the flag person allowed him to proceed past the people and equipment working in the area. He says that he did not drive faster than 60 kilometres per hour when he passed the workers and equipment. [ 9 ] Mr. Daschuk testified that all of the trucks owned by Transgas Ltd. are equipped with GPS devices that record their position and speed at regular intervals.

When his employer brought the Offence Ticket and the other Crown documents to him, he checked a printout of this truck’s GPS readings from September 5, 2013. Those readings confirmed that he was travelling at 74 kilometres per hour where the speed monitoring camera photographed his truck (paragraph 6 of Mr. Christensen’s affidavit described the location as 18 kilometres from Peerless, Saskatchewan). Further, the truck’s GPS record confirmed that his truck was fully stopped further down the highway at the place where, presumably, the flag person was located. [ 10 ] I found Mr. Daschuk to be credible.

[ 11 ] The Crown submits that the offence under subsection 203(1) of The Traffice Safety Act is a strict liability offence and that its documentary evidence proves every element of the offence. The only aspect of the Crown’s case that Mr. Daschuk disputes is that he passed highway workers or occupied highway equipment when he was travelling faster than 60 kilometres per hour. [ 12 ] No workers or highway equipment can be seen in the photograph of the Transgas truck. Bradley George Christensen’s observations of the vehicle appear in paragraphs 7 and 8 of his affidavit: “7.

At 15:35 I observed a vehicle that appeared to be travelling above the posted speed limit of 60 kilometers [sic] an hour. The speed monitoring device indicated the motor vehicle was travelling at 74 kilometers [sic] an hour and at the same time it captured a digital image and confirmed it was the same vehicle that I had directed the laser beam at and accepted the image with the data as being accurate. The data embedded in the digital image included the event number #0004 . 8.

Also, at the time I directed the laser at this motor vehicle there was worker activity in the speed monitored zone as indicated by my placement of an “X” beside the relevant circumstance(s):

a) one or more highway workers or flag persons were present X

b) There were one or more pieces of highway equipment occupied by one of [sic] more highway workers present ___

c) There were one or more pieces of highway equipment on the highway that had their ministry-issued warning lights in operation present X ” [ 13 ] Transgas Ltd. is not accused of speeding in a marked construction area with workers and highway equipment on the highway with operating warning lights in the area.

The offence is driving faster than 60 kilometres per hour when passing highway workers (whether or not they are in a marked construction zone), or when passing occupied highway equipment in a marked construction area, or when passing highway equipment actually on the highway and with its warning lights operating. None of the Crown’s documents prove that the Transgas vehicle did anything of the kind. [ 14 ] In paragraph 7 of his affidavit, Mr. Christensen says that he saw the Transgas vehicle and that it appeared to be speeding.

In paragraph 8 of his affidavit, he says that there were highway workers and highway equipment in the speed monitored zone.

Nowhere does he say that: 1. he observed the Transgas vehicle apparently travelling above the speed limit when it passed highway workers or highway equipment on the highway with operating warning lights, and that he recorded the vehicle’s speed immediately after it passed the workers or equipment, or 2. the Transgas vehicle actually was passing highway workers or highway equipment on the highway with operating warning lights when the speed monitoring device recorded its speed. [ 15 ] For these reasons, I find the accused not guilty. ____________________________ M.F. Martinez, J