2017 QCCQ 13553, 2017 QCCQ 13553

Directeur des poursuites criminelles et pénales c. Smalley III 2017 QCCQ 13553 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-61-434668-167 DATE : November 21, 2017 BEFORE MADAM JOHANNE WHITE PRESIDING JUSTICE OF THE PEACE AND JUDGE DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES Prosecutor c. PHILIP ADAM SMALLEY III Defendant JUDGMENT On Easter Sunday in 2015, Mr. Philip Adam Smalley III is driving on Highway 720 east with his fiancé. He is stopped for speeding by Officer Yves Labbé and charged with an offence to

Section 329 of the Highway Safety Code , R.S.Q., c. 24.2. JW0192 QUESTIONS AT ISSUES [ 1 ] Does the testimony of Mr. Smallley constitute contrary evidence raising a reasonable doubt on the presumption established by the prosecutor? [ 2 ] Does the defence of a possible confusion with another vehicle from the police officer raise a reasonable doubt?

THE PROSECUTION’S CASE [ 3 ] Yves Labbé, an officer of the Sûreté du Québec, testified regarding the circumstances surrounding the issuance of the speeding ticket to the Defendant on April 5, 2015. [ 4 ] That day, at 17:48 p.m., Constable Labbé is operating a radar on Highway 720 East, near the Greene entrance. [ 5 ] The tests carried out before and after the operation show that the laser was working properly.

Constable Labbé is a radar operator qualified to use conventional radar devices since May 1992 and to use laser speed detectors since June 2001. [ 6 ] The patrol car was parked near the concrete traffic barrier separating the Greene entrance ramp from the highway. Constable Labbé was seated in the driver’s side of the vehicle, his legs outside the car, facing the incoming traffic. [ 7 ] Constable Labbé observed a vehicle travelling in the center left lane that was fast approaching his position.

He estimated the speed of that vehicle at 130 km/h and, from a distance of 166 meters, clocked it at 126 km/h using a laser speed radar. The panel indicating a 70 km/h speed limit was located 1.5 kilometers and 600 meters from where the offending vehicle was clocked. [ 8 ] The vehicle, which slowed down when passing the patrol car, is then identified as a black BMW, and remained in clear view until it was stopped by Officer Labbé. [ 9 ] The speeding car is the only BMW on the road at that moment.

Never losing sight of the vehicle, Constable Labbé’s patrol car is directly behind it in the Ville-Marie tunnel, but this does not stop the driver of the BMW from driving at 90 km/h THE DEFENDANT’S CASE: [ 10 ] Mr. Smalley is very familiar with Highway 720 and knows the speed limit near Greene entrance. [ 11 ] On that day, he did not notice the police officer until he passed him. It is his wife who brought to his attention the presence of the police officer. [ 12 ] He testifies that he was driving in the center right lane coming from highway 20, and then moved in the right most lane.

[ 13 ] He looked regularly at his speedometer and saw that he was driving at 70 km/h. ANALYSIS What is the meaning of “evidence to the contrary”? [ 14 ] In R. v. Déry , [1] the Court of Appeal specifies what constitutes evidence to the contrary: [ translation ] This evidence to the contrary must raise a reasonable doubt. It need not be convincing beyond a reasonable doubt.

As the courts have indicated on numerous occasions, while this evidence must have probative value, it need not convince the Court. [ 15 ] This conclusion also flows from the analysis of the Court of Appeal of Québec with regard to conventional speed meters: [2] [ translation ] So, if these are established, the report of the radar operator will have much the same effect as that of the breathalyzer technician: when proof of the competence of the police officer and the proper use of the apparatus is established, the speed indicated by the radar shall be prima facie proof of the speed of the vehicle.

To prove his innocence, the defendant will have to present evidence to the contrary . In short, proof that the operator is qualified, that the apparatus was tested before and after use, and that the tests showed that the instrument was accurate establishes a prima facie case, subject, of course, to the reasonable doubt that the accused may raise . (Emphasis added.) [ 16 ] Therefore, the evidence to the contrary that a defendant may present need only raise a reasonable doubt. This evidence must however be credible, have probative value, and not rely on the mere possibility of the inaccuracy of the apparatus.

Evidence to the contrary cannot be based on speculation or estimates. Thus, [ translation ] “a mere estimate of speed” cannot be characterized as evidence to the contrary. [3] [ 17 ] In this case, the defendant never established precisely where he was when he looked at his speedometer. He did mention “regularly”, but this statement is too vague to raise a reasonable doubt. [ 18 ] Furthermore, he mentioned that it was his wife that brought to his attention the presence of the police officer.

Why was it necessary to bring this to the defendant’s attention if he was driving in the right most lane at a speed of 70 km/h? [ 19 ] The Court does not believe the defendant as to his speed or the lane in which he says he was driving on that day. [ 20 ] As for the possibility of a confusion with another vehicle by the police officer, there is no evidence in the proof presented by the defendant of a similar car on the road on that day. To sustain the possibility of a confusion with another vehicle, details and precisions are necessary. A theoretical possibility of confusion is not sufficient.

FOR THESE REASONS, THE COURT: DECLARES THE DEFENDANT guilty of the offence held against him ; CONDEMS THE DEFENDANT to pay the fine of 580.00$; SETS THE REPRESENTATIONS according to

Section 224 of the Penal Procedure Code regarding the fine, the costs or the delay to pay that fine on January 8th 2018 , Room 13.03, at 14.00. If there are no representations to be made, parties or the lawyers do not have to be present. In that case, the Defendant will have to pay 580.00$ plus costs, and the Court will grant the defendant a delay of 3 months to pay. __________________________________ JOHANNE WHITE Presiding Justice of the Peace and Judge Alexandre Dubois, intern For the Plaintiff Me Hassen Djemame For the Defendant

Trial date : June 29, 2017