R. v. Harold Perron 2014NBPC39 Court File Number 05722110, 2014 NBPC 39

R. v. Harold Perron 2014NBPC39 Court File Number 05722110 IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF CAMPBELLTON B E T W E E N: HER MAJESTY THE QUEEN - and - HAROLD PERRON JUDGEMENT BEFORE: Judge J.L. Jacques Desjardins DATE OF TRIAL: May 13 th , 2014 PLACE OF TRIAL: Campbellton, New Brunswick DATE OF DECISION: May 26 th , 2014

APPEARANCES: For the Crown: Joanne Durette For the Defense: Leslie F. Matchim REASONS FOR JUDGMENT J.L.J. Desjardins, PCJ [1] The defendant is charged with operating a motor vehicle on a highway in which the driver’s side window was covered with amaterial that prevented more than 30% of any light passing through, contrary to s. 238(1.4) of the Motor Vehicle Act. [2] On June 14th, 2013, Cst. Lachance of the RCMP was at an intersection in Campbellton, NB at about midnight when he observedthe defendant’s vehicle. As it turned by him, Cst.

Lachance noticed the driver’s side window was very dark and it was impossible to seeinside and observe the driver. [3] Cst. Lachance intercepted the vehicle and identified the defendant Harold Perron as the driver. He then took a photometer andperformed a test on the driver’s side window. The machine produced a reading of 14, which according to Cst.

Lachance indicates that86% of light is prevented from passing through. [4] Section 238(1.4) of the Motor Vehicle Act reads as follows: No person shall operate on a highway a motor vehicle on which the front windshield, or the side wings or side windows to the right orthe left of the driver, have been treated, coated or covered with a colour spray or other coloured material or any opaque or reflectivematerial that prevents more than thirty per cent of any light from passing through in either direction when measured by aphotometer. [5] The defendant claims the reading is unreliable as proof because Cst.

Lachance is not a qualified operator and the device was nottested adequately to confirm it was operating properly. [6] Alternatively, the defendant raises the defense of “officially induced error”. [7] I will deal with the first issue of defense. Cst. Lachance is not qualified to operate the photometer. He claims that it is notrequired because the machine is simple to operate. The photometer is supplied with two test plastic sheets one of which has apredetermined transparency of 22. When applied and tested with the device it should give the same reading, indicating it is functioningproperly.

With respect to the other test sheet, he only mentioned that it had a different transparency reading. [8] In R. v. Arnand (NB PC), [1998] N.B.J. No 440, 206 NBR (2d) 56, 45 M.V.R. (3d) 212, although it dealtwith the issue of “officially induced error”, Jackson J. mentioned at paragraph 4 that Cst. Cole of the RCMP attended and successfullycompleted a photometer operator course and was a qualified operator. Also, a calibration record was entered as an exhibit.

Thisindicates to me that such courses are available within the RCMP in New Brunswick and that calibration of the device is performed. [9] In my opinion, the operator of a photometer should be trained and qualified. In order for the Crown to prove a violation based onthe reading of a photometer, the operator must withstand scrutiny in his or her testimony. The Court must be satisfied that the device

was operating properly and that it was used correctly by the operator. [ 10 ] This is somewhat akin to cases involving speed detection by radar. There must be safeguards in place to ensure proper functioning in order to obtain a conviction. [ 11 ] In New Brunswick there are no regulations in place concerning the photometer. In R. v. Holder [2004] Q.J. No 17533 , a Municipal Court of Montreal decision reference is made to several elements that must be met in order to obtain a conviction. Although those elements were norms set by Bylaw in that case, it bears repeating as most are based on common sense.

At paragraph 15 in Holder: Dans le cas présent, pour faire sa preuve à partir d’un photomètre modèle 100 numéro de série 10715, le procureur devait démontrer :

a) que l’opérateur était qualifié, c’est-à-dire qu’il avait appris à faire adéquatement fonctionner l’appareil et qu’il avait l’expérience de son utilisation;

b) que l’appareil avait été testé avant comme après l’opération avec une vitre témoin et qu’il était en bon état de fonctionnement;

c) que l’appareil avait été calibré;

d) que la vitre du véhicule du défendeur était propre au moment du test;

e) le résultat des tests effectués sur la vitre témoin ainsi que sur la vitre du véhicule intercepté;

f) la température ambiante en degrés Celsius s’il s’agit d’un cas où la lecture a été effectuée à l’intérieur. [ 12 ] In this instance, Cst. Lachance stated he put the photometer on the driver’s side window and obtained the result of 14. Then he went to his vehicle and made the verification of the device only with the test sheet of 22, which he says gave him the corresponding reading.

He concluded the photometer functioned properly and so prepared the ticket. [ 13 ] The defendant claims that there was no evidence presented other than the one verification afterwards to show that the photometer gave a true result. [ 14 ] Did the windshield need to be washed or cleaned before the test? [ 15 ] Does the fact that it was dark outside (midnight) affect the results as opposed to an operation in daylight? [ 16 ] Shouldn’t verification of the device be made before and after? Also, what was the pre-set standard of the second test plastic sheet? Was it set at a substantially different degree?

Why was it supplied along with the other test sheet? Cst. Lachance did not use it in his verification of the device. [ 17 ] Was the machine calibrated? Does it need to be? [ 18 ] These are all questions that could be asked of an operator but only if he or she is trained and qualified to answer. In this case, it was not possible because Cst.

Lachance is not trained or qualified. [ 19 ] For these reasons, I conclude I have a reasonable doubt that the result obtained was true and reliable, and find the defendant not guilty. [ 20 ] I do not have to decide on the second defense raised, i.e., the issue of “ officially induced error ”.

DATED at Campbellton, N.B. this 26 th day of May 2014. ________________________ J.L. Jacques Desjardins Judge of the Provincial Court