R. v. Howse, 2012 ONCJ 517

Caledon Certificate of Offence: 3089436A Citation: R. v. Howse , 2012 ONCJ 517 ONTARIO COURT OF JUSTICE at Orangeville BETWEEN: HER MAJESTY THE QUEEN Respondent and WILLIAM HOWSE Appellant Before: Justice B. E. Pugsley Heard: August 3rd, 2012 Released: August 8th, 2012 Appearances: J. Dannial E.S. Baker counsel for the Appellant Donna Gibbs counsel for the Respondent ENDORSEMENT 1 . The Appellant appeals from his conviction and sentence imposed after a trial before Her Worship Justice of the Peace E. Walker on a single count of speeding. 2 .

The Appellant was stopped by an O.P.P officer for speeding on March 21 st , 2010. His trial was held on June 3 rd , 2011. At his trial the defendant raised several issues including whether there was a breach of his right under

section 11 (

d) of the Canadian Charter of Rights and Freedoms to be presumed innocent until proven guilty by the crown before an independent court. The trial justice of the peace considered the submissions of counsel and none-the-less convicted the defendant and sentenced him to pay a fine. 3 . The defendant appeals and essentially repeats the submissions made before the learned justice of the peace below. 4 . The brief facts are as follows: on March 21 st , 2010, Provincial Constable Rosa was on traffic patrol in an unmarked O.P.P cruiser.

His task at the time he came into contact with the Appellant was to enforce the speed limit and to assist him his cruiser was equipped with a Genesis II Select dash mounted radar unit. P.C. Rosa described to the court his training and experience operating such a radar unit, and described how he had tested the radar unit pursuant to manufacturer’s recommendations to check its accuracy on that date. P.C. Rosa testified that at the time he stopped the Appellant he was conducting mobile radar speed enforcement in the Town of Caledon in the Region of Peel, on Highway 9 near Regional Road 50.

The speed limit in this area on Highway 9 is 80 kilometres per hour. At about 11:53 am he saw the Appellant’s motor vehicle approaching him at an obviously high rate of speed. He used the radar to target the Appellant’s vehicle and the radar gave two readings, both being 120 km/hour. He stopped the Appellant’s vehicle, the Appellant produced his documentation, and P.C. Rosa issued the Appellant Certificate of Offence 3089436A for speeding 120 km/hour in a posted 80 km/hour zone contrary to

section 128 of the Highway Traffic Act RSO 1990 c. H-8 as amended. 5 . The Appellant sought a trial, and a Notice of Trial was issued by the court returnable at the Provincial Offences Court at Caledon East, Ontario, in the Town of Caledon, on June 4 th , 2010. As described earlier, the trial was ultimately held just short of one year later. Both parties were represented by lawyers at the trial. 6 . At the beginning of the trial the Appellant submitted that there had been a breach of the Appellant’s right under

section 11 (

d) of the Charter in that the Notice of Trial issued by the court to the Appellant to tell him when and where his trial would be used the following words: Offence Number and Offence Date (emphasis added).

The Appellant submitted then, as he did at the hearing of his appeal, that the use of the word Offence violated his right to be presumed innocent until proven guilty in court because there cannot be an offence committed until after a defendant is found guilty, and that the use of the impugned word here by implication presumed that the defendant in such a case has already been found guilty even before his or her trial. The Appellant’s counsel noted that he had raised this issue in the past and that as a result the dockets posted in courthouses in Ontario now referred to defendants not offenders.

The Appellant submitted that the Notice of Trial was a nullity because of the Charter breach, and further that the wording on the Notice of Trial created a reasonable apprehension of bias in that the presiding judicial officer, seeing the word Offence, was already predisposed to finding the Appellant guilty. The prosecutor submitted that there was no

section 11 (

d) Charter breach. 7 . Justice of the Peace Walker recessed to consider the Appellant’s application. Upon her return she dismissed the application with brief reasons. The Appellant sought to adjourn the trial to allow him to appeal that finding. The learned justice of the peace below

declined that request and the trial then commenced. 8 . After P. C. Rosa described his interaction at the roadside with the Appellant, the crown moved pursuant to subsection 34 (1) of the Provincial Offences Act RSO 1990 c. P-33 as amended, to amend the Certificate of Offence to conform to the evidence of P. C. Rosa as to the location of the alleged offence. The Certificate of Offence had stated that the alleged offence took place on Highway 10 in the Town of Caledon. P. C. Rosa’s evidence was rather that the alleged offence took place on Highway 9 near Regional Road 50 in the Town of Caledon.

The Appellant objected to the proposed amendment, stating that it was too late, and that the Appellant had already been irredeemably prejudiced by the error. Further, the Appellant submitted that there was no evidence that the location of the stop was in Caledon. After brief reasons the learned justice of the peace accepted the evidence of the officer that the stop was in Caledon and amended the Certificate as requested by the prosecution. 9 . In cross-examination P. C.

Rosa was questioned as to the tests he performed to assure himself that the radar unit was in proper operating condition when he used it to clock the Appellant’s speed. A copy of the radar device’s operating manual was filed as exhibit 2 at the trial. In

summary, the officer extensively tested the device before and after use. P. C. Rosa was asked about using a tuning fork test in the past to test the radar device. He advised that he had done so years before but that this test had not been required by the manufacturer since 2005. The officer agreed that in other provinces and states the tuning fork test is still used to test this radar device. The manual that was current at the time of the trial reflected the amended procedure, and P. C. Rosa had used that procedure established by the manufacturer to test the device here.

That procedure did not require the tuning fork test. In fact the tuning forks had been collected up and removed from the cruisers by the O.P.P. in 2005. 10 . P.C. Rosa was asked further what the margin of error was for this radar device. He stated that the radar devices are very accurate but the display could be plus or minus one km/hour either way. The Appellant noted that the Certificate of Offence stated that the Appellant had been driving at 120 km/hour and the officer agreed that the radar read 120 km/hour, twice, and was locked in at that speed.

He agreed that given the margin of error the actual speed could have been 119 km/hour to 121 km/hour as far as the display was concerned. The Appellant noted that in signing the Certificate of Offence the officer certified (emphasis added) that the Appellant’s speed was 120 km/hour, and that had the Appellant not sought to have a trial, that speed would have been used to convict the Appellant.

The Appellant submitted to the officer – and then to the court - that there had been numerous wrongful convictions because the certified speed was in fact not the speed at all – it could be up to 1 km/hour under or over the speed that the radar device displayed. 11 . The Appellant took issue with the officer describing the geographical boundaries of the court and asked to see the map referenced by the officer. The map was not ordered produced. 12 . After re-examination the trial justice of the peace allowed a further and extraordinary opportunity for rebuttal by the Appellant. 13 .

In wide ranging submissions at trial the Appellant alleged: (

a) that “there’s possibly a huge fraud being conferred upon the citizens of Ontario with regards to Decatur” – that is the radar manufacturer – “in this.” The thesis of this submission, made again on appeal, is that because Ontario doesn’t require tuning fork tests and other jurisdictions do so, the prosecution bears an onus to explain why, failing which a reasonable doubt has been created as to the guilt of the Appellant; (

b) that the evidence of the police officer as to the geographical boundaries of the court’s jurisdiction was hearsay and could not be accepted, leaving the court without jurisdiction over the Certificate of Offence; (

c) that the speed certified by the officer was incorrect because of the margin of error of the device, and that, added up over the many thousands of tickets issued each year this was the source of countless wrongful convictions, higher points and increased fines. The only correct way to certify the speed on the ticket, it was submitted, is by incorporating the margin of error in favour of the Appellant. 14 .

After submissions the presiding justice of the peace at trial determined that the proper legal test for whether the officer properly used the radar device was whether he had followed the manufacturer’s instructions in testing and operating the device in Ontario. She found that he had indeed done so. The certification by the officer on the Certificate of Offence is intended to certify his belief that the facts set out in the certificate are correct. Further, Her Worship ruled that not all facts need to be set out on the face of the Certificate of Offence to make it a valid Certificate.

What the form is intended to do is to make a defendant aware of the charge that he or she faces in court such that the defendant may decide whether or not to seek a trial of the charge. Her Worship found that this Certificate of Offence satisfied that requirement. Her Worship explained further why she accepted P. C. Rosa’s evidence as to jurisdiction. 15 . The learned justice of the peace convicted the Appellant of speeding, 120 km/hour in a posted 80 km/hour zone, and fined him $280 plus costs. 16 . The Appellant renews his submissions with regard to

section 11 (

d) of the Charter on the appeal, and repeats the submissions made on the merits that were made at trial. 17 . In particular the Appellant invites this court to send a strong message to the government that the present Notice of Trial is an offensive breach of

section 11 (

b) and acts to subliminally bias every judicial officer as to the guilt or innocence of each defendant, not only this Appellant, before the trial has even begun. Further, the false certification by the officer on the face of the Certificate of Offence as to the Appellant’s true speed should be corrected by a similarly terse decision by this court directing the government to amend the form. It is suggested that I give the government one or two years to correct the Notices and form. 18 .

The Appellant also submits that the trial justice of the peace gave inadequate reasons in allowing the amendment of the certificate of Offence under section 34 (1) of the P.O.A ., and had no evidence upon which she could find that the stop took place within the jurisdiction of the court, and failed to explain this aspect of her decision. 19 . There is simply no merit at all to any of the Appellant’s submissions. 20 . First, the alleged Charter violation. The onus lies upon the applicant to show a breach of the Charter . No such a breach was remotely demonstrated by the Appellant here.

The theory of the Appellant is that the use of the word “offence” on the

Notice of Trial illustrates that a defendant such as the Appellant has already been found guilty of the charge before the court. The plain language of the form, read in its entirety cannot possibly support this submission. The Notice is a notification to the defendant that the defendant should attend at a certain place and time for his or her trial. A trial is a determination of the guilt or innocence of a defendant by the testing of the evidence presented to the court by an independent arbiter – here the presiding justice of the peace. The Notice on its face illustrates

section 11 (d), it does not violate it. The trial itself notoriously complies with

section 11 (d), it does not violate it. The presiding justice of the peace correctly found that the Appellant had not shown any Charter violation. 21 .

No reasonable person viewing the Notice of Trial in its entirety, let alone being privy to the fact of this trial, would find anything suggesting that any judicial officer could be influenced or biased by the use of the words “Offence Number”, and “Offence Date”, on the said notice, even if some sort of “subliminal”, or unconscious and generalized bias from those words could lead to a reasonable apprehension of bias on the part of an individual judicial officer as suggested by the Appellant, which is not the law.

No specific bias was in any way shown by the Appellant with regard to the presiding justice of the peace herein, and none existed. 22 . Second, the alleged mis-certification of the Certificate of Offence by the officer. In my view the ruling of the learned justice of the peace below was correct. The purpose of the Certificate of Offence is to allow a defendant to understand in a simple format what the charge is that they are facing so that each said defendant can make an informed decision as to whether or not to dispute the ticket.

Here the officer certified that the Appellant was charged with speeding at a speed of 120 km/hour in a posted 80 km/hour speed zone. This was and is, entirely correct. That the officer opined in his evidence at trial that he understood that the radar device could have a margin of error of plus or minus 1 km/hour is completely irrelevant to the speed set out on the face of the Certificate, which was the speed displayed on the face of the radar device at the roadside.

That speed represented the only speed that could have and should have been placed on the Certificate by the officer, and allowed the Appellant to determine whether to pay the ticket or defend it at a trial, as here. At the trial only the evidence of the officer, not the statement on the Certificate, determined the issue, and the presiding justice of the peace below was entitled to accept his evidence on the Appellant’s speed without resort to a hypothetical margin of error. 23 .

To be clear, I reject the submission of the Appellant that by certifying the speed locked in by the radar unit, rather than applying a hypothetical margin of error, the government has engineered countless “wrongful convictions”.

Even on the face of the submission this is completely meritless since the impact of a hypothetical range of error would mean that, on average, the same number of defendants would be “wrongfully convicted” of going one km/hour slower than they really were driving as those “wrongfully convicted” of going one km/hour faster than they were driving, and those “properly convicted” with going at the exactly correct speed. 24 . It seems to me that the Appellant has fallen into the common trap of forgetting that the POA is

an act intended to be a simple procedure for simple and very minor offences. The process is not intended to be a perfect process, only a fair process. An officer certifying on the Certificate of Offence the exact speed set out on the display of his locked in radar device is an extremely fair and entirely predictable process for this minor traffic offence. 25 . Third, the radar tests. The Appellant alleges that only in Ontario is the Genesis II Select radar not tested with a tuning fork.

At the trial the Appellant’s counsel stopped just short of alleging a fraud perpetrated by the government against the people of Ontario. The Appellant submits that the mere fact that the manual does not call for the use of a tuning fork test in Ontario requires that the prosecution explain this omission or else the charge cannot be proven beyond a reasonable doubt. The Appellant brings no expert evidence as to any effect of such an omission on the accuracy of the radar device, only making broad sweeping submissions that if the manual is different in Ontario this must be explained by the prosecution.

With respect the learned justice of the peace below properly stated and applied the applicable test here: did the officer properly test and operate the device according to the manufacturer’s specifications. Quite properly she answered this question in the affirmative on the evidence before her. 26 . It seems to me that the Appellant’s submission errs in not understanding where the onus lies here.

If the evidence establishes, as here, that the officer operated the device properly and according to the manufacturer’s specifications, then the court is entitled to rely on this evidence unless it is rebutted by some evidence bringing that reliance into question. It is not for the crown to negative every possible factor that could bring the evidence into question. The evidentiary onus shifts to the Appellant who is alleging a basis for an error that lies outside the manufacturer’s manual.

This does not affect the overall onus in every such case that requires the crown to prove the charge beyond a reasonable doubt. 27 . Plainly put, the fact that a tuning fork is used in other jurisdictions to test this device is irrelevant provided that the device is, as here, operated in accordance with the manual. 28 . Fourth, the venue. The Appellant submits that the prosecution never properly proved that this trial court had jurisdiction over the Certificate of Offence.

With respect there was a multiplicity of admissible evidence that supports the conclusion reached by the presiding justice of the peace at the trial here. First, although she chose not to do so here, the justice of the peace would have been entitled to take complete judicial notice of the boundaries of the Town of Caledon. Second, the boundaries of the Town of Caledon are notorious and defined by provincial statute. Third,

section 29 of the P.O.A. governs the venue for a trial. That

section starts with the presumption that, as here, the trial shall take place at the court sitting in the county or district where the offence occurred. The trial may however take place in an adjoining county or district when it is reasonably convenient to hold the trial there and where the Notice of Trial directs the defendant to that court location (see s. 29 (2)). Where no trial is sought by the defendant, the charges may be disposed of in any municipality.

Finally, offences that take place within a short distance of a boundary between two municipalities – as in the case of offences on a common road - may in any event be prosecuted in either municipality. 29 . Here P.C. Rosa testified that the offence took place in Caledon. The justice of the peace accepted that evidence, supported by her own knowledge of the process, and was fully entitled to do so here.

In any event such an error, if made, which I find is not the case, would have no effect on this trial as any such error was of trifling and purely technical effect and in any event the Appellant attorned to the jurisdiction of the court at his trial. 30 . Fifth, the amendment. As permitted by

section 34 of the P.O.A. , the prosecution sought to amend the Certificate of Offence to conform to the evidence of the officer that the speeding stop was made on Highway 9, not Highway 10 as set out in the certificate. The Appellant submits that the amendment was improper and that the justice of the peace did not explain why the

amendment was granted. With respect such amendments are expressly permitted by the act at any stage of a proceeding. This is consistent with the thrust of the act in focusing on the merits of trials and not technical objections. The amendment was obvious and proper and called for no more explanation than that given by the presiding justice. Indeed, no reasons at all would have been required in my view when this obvious and proper amendment was made here since there was only one possible outcome at law to the requested amendment and that was to grant it. 31 .

The Appellant’s trial was fair and his conviction and sentence are entirely supported by the evidence. The justice of the peace at trial made no error on this record and, rather, showed tact and skill and reached the proper result. The appeal is dismissed. ___________________________________ Justice Bruce E. Pugsley Ontario Court of Justice at Orangeville