R. v. Violi, 2011 ONCJ 788

Citation: R. v. Violi , 2011 ONCJ 788 IN THE MATTER OF the Highway Traffic Act, R.S.O. 1990, c. H.8 Between Her Majesty The Queen Prosecutor And Mr. Domenico Violi Defendant Ontario Court of Justice Mississauga, Ontario Manno, G. Justice of the Peace Reasons for Judgment Charge: s. 128 H.T.A. – “Speeding” Trial held: October 17, 2011 Judgment rendered: December 16 th , 2011

M. Dunlop, Provincial Prosecutor M. Walt, Agent for the Defendant Cases Considered or Referred To: R v W (D) (SCC), [1994] 3 SCR 521 [1994] SCJ No. 91 (QL) (SCC) Rv.Lifchus (SCC), [1997] 3 SCR 320 (S.C.C.) R v Zuckerman [2006] OJ No. 535 (Ont CJ) R v Ahmad [2007] OJ No. 5398 (Ont C

J) R v Constante [2004] OJ No. 3482 (Ont CJ) R v Antunes [2004] OJ No. 4898 (Ont C

J) R v Koumoudouros [2005] OJ No. 5055 (Ont C

J) R v Bland (ON CA), [1974] 20 CCC (2d) 332 (Ont CA) R v Sibio [2010] ONCJ 315; OJ No. 3242 (Ont C

J) Statutes, Regulations and Rules Cited: Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 128 Provincial Offences Act of Ontario Reference Material Cited: . Patrick Healy, “Credibility andthe Presumption of Innocence.” (2007) 11 Can.Crim. L.R. 217. J. Swaigen, Regulatory Offences in Canada:Liability & Defences. Carswell, 1992 Libman on Regulatory Offences in Canada, 2002 The Law of Traffic Offences, Hutchinsen, Rose, Downes , Carswell, 3rd ed., 2008 Issues: Establishing proof beyond a reasonable doubt. Use of speedometer evidence and implications of R. v. Bland & R. v.

Koumoudouros, the cases relied on by the Prosecutor andDefendant, respectively. Background: 1. On November 25, 2010 at about 7:25 p.m., Mr. Domenico Violi (the Defendant) and his family were in their vehicle travellingeastbound on highway 407, near highway 410 in the City of Brampton, Region of Peel. Officer DeHamilton travelling in an unmarkedvehicle often referred to as a ‘ghost car’ observed the Defendant passing his location at what he believed to be a higher rate of speed than

the posted 100 k.p.h. speed limit. The officer positioned himself about 5-6 car lengths behind the Defendant’s vehicle and began to ‘pace’ the Defendant’s speed using his speedometer. Over a 2.4 kilometre distance, the Officer testified that the Defendant was travelling 142 kph based on his speedometer reading. The Officer effected a traffic stop and issued a Part One Certificate of Offence for speeding under the Highway Traffic Act,

Section 128 . 2. At trial, the absent Defendant was ably represented by Mr. Walt and the Municipality by Ms. Dunlop. The only witness to take the stand was the charging officer. The Evidence 3. The officer provided credible evidence on all of the elements of this particular offence. He indicated he had a clear and unobstructed view, never lost sight of the Defendant, and was clear in his evidence. He indicated that the roads were wet but clear and the temperature was noted as 2 degrees Celsius. 4.

Officer DeHamilton indicated that he did not personally calibrate the speedometer but he had knowledge of this particular vehicle as he was responsible for signing off on maintenance for the vehicle. The speedometer was calibrated sometime in 2009 when the vehicle was new but on the day of the Offence the speedometer had not been tested against any radar or laser instrument to check its accuracy. A tag or sticker was located in the vehicle attesting to the 2009 date of calibration. 5.

The officer further testified that this vehicle was never in any accident and though he shared this vehicle with other officers on the road he never had any reason to doubt or question the accuracy of the speedometer. 6. The Defence, upon cross-examination established that the officer did not calibrate the speedometer nor had he ever tested it against laser or radar.

On the date of the offence the officer did not record the odometer reading in his notebook and established that the Officer looked at the last three digits of the odometer, then looked at it again 2.4 kilometres later as he concurrently looked at his speedometer. Mr Walt asked the Court to consider R v. Koumoudouros as sufficient authority which together with the evidence would allow the Court to dismiss the charge. 7. Though the Defendant is not required to provide any evidence at Trial, or be present at Trial, it is also true that no other versions of these events were provided to the Court for consideration.

There was no contrary evidence regarding the speed travelled. 8. The Prosecution’s submissions were brief. They reminded the Court that R. v. Bland was the guiding authority for this Court and that the Officer’s evidence was clear and remained so under the scrutiny of cross-examination. Analysis of the Evidence 9.

In R v Bland , amongst other things, the ratio was that the speedometer recording a steady speed over a certain distance on a relatively flat road was prima facie evidence that the speed measured by that device was correct absent any evidence elicited either in cross- examination or by a Defence witness which would suggest that the speedometer was inaccurate. Certainly, to some at first glance, the premise that a speedometer would be any more reliable than laser or radar devices used for the same purpose would be counter-intuitive.

Laser and radar are tested regularly and evidence is oft given to the Courts regarding the testing of those devices for reliability and/or accuracy. No such requirement exists for the vehicle speedometer. The 1974 decision of R v. Bland still stands the test of time as decided by the Ontario Court of Appeal. Unless there is contraverted evidence to suggest that the speedometer was not accurate, the Court must accept that it was accurate and this Court would be bound by stare decisis unless there were distinguishable points between this case and Bland.

10. There are a number of excellent cases that deal with the issue of speed pacing and the use of speedometer evidence. This Court hasconsidered those cases listed above. In R v Zuckerman, R vAhmad and R v. Bland, there was no cross-examination evidence orDefendant witnesses that suggested that the speedometer was inaccurate. The same was true in the R v Constante and R v Anthunescases. In R. v Sibio, the issue was distinguishable in that the speedometer evidence was not the issue at Trial. The issue to be decided inR v Sibio had to do with the credibility of the witnesses. 11.

In R v Koumoudouros, there were no statements of law or binding principles at play with respect to the calibration or accuracy ofthe speedometer evidence. Its precedential value to subsequent Court decisions is limited and not strong enough to bind this or any otherCourt. As such, unless there are distinctions to be drawn between this case and R v Bland, the latter, and the principles found thereinbecome the guiding principle. 12. Although Mr.

Walt in his cross-examination wished the Court to consider that there was reasonable doubt about the speedometeraccuracy and calibration, given the evidence the Court does accept, the Court found insufficient reasoning that would form a distinctionbetween Bland and this case. In other words, simply raising the spectre of the possibility of a speedometer not being accurate withoutevidentiary foundation is not sufficient to prove or suggest that it is. This Court believes that (

a) there are no significant features of thiscase that make it distinguishable from R. v Bland; and (

b) There is no direct or indirect evidence to suggest that the speedometer used bythis officer was in any way inaccurate; and (

c) there is no contrary evidence given to the Court as to speed being travelled or upon any ofthe other elements of this offence. The Principles of Reasonable Doubt

(1) To assist the Court in reaching a verdict it considered R v W (D) (SCC), [1994] 3 SCR 521 [1994] SCJ No. 91 (QL)(SCC). As well to help define reasonable doubt the Court utilizes the principles set forth by the case Regina v Lifchus (SCC), [1997] 3 SCR 320 (SCC)

(2) In R v DW the Court considered the following test: First: If you believe the evidence of the Accused/Defendant, you must acquit. Second: If you do NOT believe in the evidence of the Accused/Defendant, but you are left in reasonable doubt by it, you must acquit. Thirdly: Even if you are not left in doubt by the evidence of the Accused/Defendant, you must ask yourself, whether, on the basis of theevidence you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the Accused/Defendant.

(3) An expansion of the R v DW analysis was conveniently found in J.P. Quon’s decision in R v Kular, 2010 ONCJ 241 where hequoted Professor Healy on Reasonable Doubt. “In Professor Healy’s dissertation (before he was appointed to the bench) at pp. 230-231, he explains that the principle which animatesR. v. W. (D.) is whether the evidence in a case discloses a reason for the trier of fact to have reasonable doubt on the whole of the case.He also reasoned that R. v.

W. (D.) is a particularized expression of the presumption of innocence and that it is concerned with theapplication of the standard of proof on the whole of the evidence at the end of the case. Furthermore, Professor Healy in utilizing thecriteria outlined in R. v. W. (D.), expanded the number of scenarios for acquitting an accused when the credibility of witnesses and theaccused is at issue and suggested five possible situations in which the trier of fact could find reasonable doubt about the accused’s guilton the whole of the case:

The principle in W. (D.) is concerned with one question for the trier of fact: Does the issue of credibility give you a reason to have areasonable doubt of A’s guilt on the whole of the case? There are five reasons to say Yes. 1. I am not persuaded beyond a reasonable doubt by the prosecution witnesses of A’s guilt. 2. I believe the exculpatory testimony of the defence witnesses and thus the prosecution case is not proved beyond a reasonabledoubt. 3. Even if I do not believe it, the exculpatory testimony leaves me with a reasonable doubt. 4.

Even if I do not believe the exculpatory evidence, I do not know what or whom to believe on the essential elements of this case,and thus I have a reasonable doubt on the whole of the case. 5. Even if I do not believe the exculpatory testimony, when I consider all of the evidence in this case, I am not persuaded of A’s guiltbeyond a reasonable doubt.

Paragraph 1 is subsumed in paragraphs 4 and 5, and between themselves paragraphs 4 and 5 are strictly redundant, but this is the full range of possibilities covered by the general principle in W (D)Any one of these five answers will compel an acquittal. 2010 ONCJ 241 ” Conclusions and Decision of the Court For the reasons listed in paragraph (12) above and considering the credible evidence given by the Officer this Court finds in favour of theProsecution beyond a reasonable doubt and a conviction shall be registered.

The Court has also considered the principles found in R v W D and R v Lifchus concerning proof beyond a reasonable doubt in makingits final determination. G. Manno Written Reasons released and filed with the Court

December 16th, 2011