R. v. Maxwell, 2012 ONCJ 722

Northumberland County 2760 999 11 00 2345492A DATE: 2012·10·10 Citation: R. v. Maxwell, 2012 ONCJ 722 ONTARIO COURT OF JUSTICE BETWEEN: Northumberland County — AND — Stewart Maxwell Before Justice of the Peace R. J. Le Blanc Heard on July 25, 2012 Reasons for Judgment released on October 10, 2012 John Van Duzer for the prosecution Stewart Maxwell self-represented defendant CASE LAW, REGULATIONS AND LEGISLATION s. 128 Ontario Highway Traffic Act R. v. King [1975] O.J. No. 844 No. 35939 Ont. Supreme Court, High Court of Justice R. v. Hunter, 2012 ONCJ 537, [2012] O.J. No.4026 (Ont. C.J.) R. v. Bland, (1975), (ON CA), 6 O.R. (2d) 54 Faryna v. Chorney, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.

A) Raymond v. Bosanquet (1919), (SCC), 50 D.L.R. 560, 59 S.C.R. 452, 17 O.W.N. 295 R. v. Gagnon 2006 SCC 17 , [2006] S.C.J. No. 17 R. v. Tzarfin, (ON CA), [2005] O.J. No. 3531 (Ont. C. A.) R. v. Leung [2005] O.J. No. 1888 R. v. White (SCC), [1947] S.C.R. 268 R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 R. v. Hull, (ON CA), [2006] O.J. No. 3177 R. v. Boucher (2005) 2005 SCC 72 , 202 C.C.C. (3d) 34 R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26 R. v. Burns, (SCC), [1994] 1 S.C.R. 656

JUSTICE OF THE PEACE LE BLANC: 1 . Self-represented individual Stewart Maxwell pleaded not guilty in Cobourg’s Provincial Offences Court, July 25, 2012, to a single count of speeding. The court made an order excluding witnesses given the prosecution intended to call two witnesses. The evidence 2 . OPP officer Gary Blackman testified he was the air observer in an OPP aircraft involved in speed enforcement on February 20, 2012.

The constable was sitting in the rear seat observing – from a height of about 3,500 feet -- traffic travelling along the three eastbound lanes of Hwy. 401 in Port Hope, Northumberland County. 3 . More specifically, Const. Blackman’s attention was drawn to a series of seven hash marks, each a distance of 500 metres from the next, representing six distance measured zones clearly painted on the highway. The officer said he assisted with the measuring of the zones on the 12 th of August 2009. 4 . Const.

Blackman testified he successfully completed training in the aircraft speed enforcement program which consisted of a series of theoretical and practical exercises, and he was issued a digital stop watch. This unit is set to measure speed in 500 metre increments, and includes start/stop and lap functions. 5 . The officer said he starts the digital stopwatch when the front of the vehicle being observed ‘breaks’ the first hash mark, and the velocity of the moving motor vehicle is calculated through each of the measured zones.

When the watch is ‘stopped’ it automatically calculates the velocity of the moving motor vehicle, converting the results by way of an internal program, into kilometres per hour measurement. 6 . Const. Blackman said he tested the stopwatch against an atomic clock to ensure the stopwatch was accurate to within 1/100 of a millisecond. 7 . The officer said he tested the stop watch at 8:47 a.m. on the offence date against a radar-assisted police vehicle travelling at a constant speed throughout the six zones to ensure accuracy, and was satisfied the watch was working properly. Const.

Blackman said he repeated the test again at 4:10 p.m., and was satisfied the watch was working properly. 8 . Const. Blackman said an aircraft observer can observe colours – red and white are the easiest to detect from a height of 3,000 to 4,000 feet – and occasionally the make or model of a motor vehicle, particularly those which are of a unique shape such as a Volkswagen ‘Beatle’. Simply to put this height into context the C.N. Tower in Toronto, by comparison, is 1,815 ft. while the tallest building in the world, currently found in Dubai, is 2,723 ft.

People learning to skydive initially jump from a ‘safe’ height of 3,500 ft. 9 . Const. Blackman said he observed a white-roofed cube-like vehicle travelling at a high rate of speed in the eastbound passing lane; This vehicle was travelling ‘much faster’ than other vehicles in the area, and Const. Blackman said he started the stop watch when the white-roofed cube-like vehicle reached the first hash mark, receiving an initial reading of about 130 km/h in a posted 100 km/h zone. 10 .

At this point a red-roofed vehicle which was also travelling at a high rate of speed, caught up to and pulled in behind the white-roof, cube-like motor vehicle, and then followed at a distance of about two car lengths. The officer said he continued timing the white-roofed vehicle through the six zones, never losing sight or his concentration. He radioed two ground-unit officers at the Wesleyville ramp to stop the vehicles in question.

11 . Const. Blackman said he guided the cruisers by radio communication to the white-roofed and red-roofed motor vehicles, and confirmed to the ground officers that they had stopped the correct vehicles on the shoulder near Deer Park Road. He said he radioed ground officer Const. John Cambridge at about 3:09 p.m. confirming the white-roofed vehicle’s top speed throughout the six zones to be 132 km/h. The timings, he testified, for the vehicle in question throughout the six zones were 130, 132, 131, 130, 131 and 132 km/h respectively over a distance of three kilometres. 12 . Under cross-examination Const.

Blackman said traffic was moderate, and he agreed it may have been the Monday of the Family Day long weekend. He said he directed cruisers from the Wesleyville ramp to the vehicles he’d been observing, and was later told by Const. Cambridge that the vehicle he stopped was a white Nissan Cube. Const. Blackman said aircraft enforcement officers don’t use binoculars, adding he did not see any ‘discernible markings’ on the white-roofed vehicle. 13 . Const. Cambridge said he was involved in speed enforcement duty on February 20, 2012 on the eastbound lanes of Hwy. 401 in Port Hope in Northumberland County.

At about 3:09 p.m. Const. Cambridge said he received radio communication from the OPP spotter plane observer about two vehicles which were to be stopped. The lead vehicle was described as having a white roof. Const. Cambridge said he was directed to a vehicle with a white roof. He received confirmation that this was the correct vehicle “multiple times.” 14 . Const. Cambridge made a demand for documents and was provided with a valid Ontario photo driver’s licence in the name of Stewart Maxwell.

The officer said he was satisfied with that identification and he issued a part one certificate for travelling 132 km/h in a posted 100 km/h zone contrary to the Highway Traffic Act,

Section 128 . 15 . Under cross-examination Const. Cambridge confirmed traffic was moderate at the time of the traffic stop. He said he did not conduct the vehicle stop until he received confirmation from the air that he had the correct vehicle. Const. Cambridge said he had ‘no doubt’ he stopped the vehicle he had been directed to stop. The officer said he did not see a white cube-like vehicle drive by his location during the traffic stop, but admitted it may have been possible. Const.

Cambridge said the defendant’s motor vehicle was the lead vehicle of the two that ground officers had been directed to stop by Const. Blackman. 16 . This was the case for the prosecution. 17 . Mr. Maxwell, testified that he was driving a red ‘Rogers’ Nissan cube when he was stopped at Port Hope. He said he witnessed a white Nissan Cube drive by during the traffic stop. He denied speeding that day. 18 . Mr.

Maxwell tendered four exhibits: two colour photographs, a copy of the vehicle registration for a ‘red’ Nissan Cube, and a copy of a receipt from a graphics company for work done to two vehicles on January 27, 2012. Each of the exhibits, Mr. Maxwell said, pertains to the vehicle he was driving on the date in question. 19 . Under cross examination Mr. Maxwell said the Nissan Cube he dropped off was ‘totally red’ and was ‘wrapped’ with white Rogers graphics on the sides and hood.

He disagreed with prosecutor John Van Duzer that the vehicle was half red and half white, and disagreed that the top of the vehicle is white. 20 . This was the case for the defence. 21 . While somewhat unusual Mr. Van Duzer sought leave, and was granted permission by the court to recall Const. Cambridge to the witness stand given the exhibits Mr. Maxwell filed with the court were not put to the officer on the witness stand. 22 . Const.

Cambridge agreed the photos tendered as exhibits one and two “accurately depict” the vehicle he stopped, but he added, he could see the roof and made notes to the effect that it was white. 23 . In submissions Mr. Van Duzer noted Const. Blackman testified he never lost sight of the suspect vehicle, and that he guided Const. Cambridge to the correct vehicle, and affirmed it to the officer on the ground. He said Const. Blackman’s perception from the air was

that the vehicle was white in colour. Mr. Van Duzer said the defendant admitted to “travelling with the flow of traffic”, which could havebeen 130 km/h. Mr. Van Duzer said the defendant did not provide the court with any indication as to how fast he was travelling. 24. In submissions Mr. Maxwell said there was reasonable doubt raised in that Const. Blackman spoke of stopping a cube-like vehiclewith a white roof, whereas the vehicle he was driving had a red roof. Regulations and Case law considered 25. The court will not go into s. 128 of the Highway Traffic Act, which is reasonably straightforward. 26.

Case law as it pertains to air enforcement of speed limits was established in R. v. King [1975] O.J. No. 844 No. 35939 Ont. SupremeCourt, High Court of Justice. This case established the essential elements to be met included that the distance between markers or hashmarks as referred to today, be known and accurate; that the stop watch be proven accurate through proper testing procedures; and thatthe speed limit on the highway if posted. 27. R. v. King (supra) says the prosecution has established a prima facie case if these three tests have been met – as they are in this casethrough the testimony of Const.

Blackman – which is to say there has been at least some evidence on each of the essential elements ofthe alleged offence. 28. R. v. Bland (1975), (ON CA), 6 O.R. (2d) 54 says evidence that a stop watch recorded a particular time over ameasured distance can be prima facie evidence of speed, and R. v. Amyot [1968] O.J. No. 1207 upholds an aircraft measured speed as avalid form of speed enforcement. 29. There are two unreported cases involving disclosure of recordings of voice communications between the air officer and the groundofficer which may have been of assistance to both parties, and to the court. 30.

This judicial officer was prepared to order air-to-ground voice recordings be provided to defence counsel in the matter of Durham v.Perera (September 2009, Whitby Provincial Offences Court, unreported) given the disclosure was both relevant and material to fullanswer and defence of the charge of speeding. The recordings, defence counsel argued, would assist in determining whether the groundofficer stopped the vehicle identified by the air observer. 31. The

Part I Durham prosecutor argued making record copies of these communications would be prohibitively expensive, and were notrelevant, given the evidence could be adduced at trial. 32. This judicial officer was prepared to rule the cost to the state does not outweigh a defendant’s right to disclosure, given the test is‘relevance’ and the bar for that test, according to case law, said to be set relatively low. 33. On the date the decision was to be rendered the Durham prosecutor conceded that the OPP would begin to provide recordings of air-to-ground communications for

Part 1 matters in addition to

Part III matters, without the need for a court order. 34. R. v. Volante (unreported, 2009 Northumberland County) saw Tri-Counties Crown Andrew Fordham consent toprovide a copy of air-to-ground radio communications to the defendant without the need for a court order. 35. The most recent case on point is R. v. Hunter, 2012 ONCJ 537, [2012] O.J. No.4026 (Ont. C.J.), in which G. A. Campbell J.essentially supported the necessary prerequisites for a prima facie case as established in R. v. King (supra). 36. In R. v. Hunter (supra) Justice Campbell, on appeal, ruled the necessary actions necessary to provide at least some evidence on each

of the elements of the offence include: continuous observations made by an air officer of a speeding car in comparison to other vehicles on the highway through separate speed zones; recording at least two separate rates of speed within at least two of three zones; initiating radio contact with a ground officer, without losing sight of the suspect vehicle in order to identify it; and maintaining visual contact and radio communication until such time as the ground officer intercepts the suspect vehicle. 37 . In R. v.

Hunter (supra) the defence argument is that officer’s opportunity to observe and maintain observation of the motor vehicle was compromised and unreliable. Justice Campbell ruled there was sufficient and reliable evidence to establish the defendant’s identity. 38 . The defendant in R. v. Hunter (supra) argues the rejection of his evidence as to his rate of speed was conclusory and without analysis. The presiding justice of the peace concluded the defendant’s evidence was lacking in credibility.

The appeal court justice ruled the trial justice considered all the evidence and concluded there was no reasonable doubt as to guilt. Justice Campbell ruled a trial justice is not required to self-instruct with word-for-word adherence to the W. (D.) guidelines. 39 . The burden of proof as always lies with the prosecution, and the test to be met is proof beyond a reasonable doubt in the mind of a reasonable person. Proof beyond a reasonable doubt is defined as being the standard required to validate a criminal conviction – or in this case a Highway Traffic Act Conviction. In Canada the

definitions of ‘reasonable’ and ‘doubt’ have been determined by way of high court decisions, including R. v. Lifchus in which the Supreme Court made recommendations outlining elements to be included and equally elements that should be avoided. 40) Lifchus (supra) speaks to the fact that a reasonable doubt is not a doubt based upon sympathy or prejudice but is based upon reason and common sense and is logically connected to the evidence or absence of evidence.

It goes further to say a court’s decision need not involve proof to an absolute certainty in that the test is not proof beyond any doubt, nor is it an imaginary or frivolous doubt.

The test goes beyond a belief that the accused is probably Lifchus goes further to say beyond a reasonable doubt should not be equated to proof “to a moral certainty” and the word “doubt” should not be qualified with adjectives including “serious”, “substantial” or “haunting”, which may mislead a jury. 41) It is available to a defendant -- without reversing the prosecution’s burden of proof beyond a reasonable doubt -- to cast doubt on the prosecutions’ evidence which is what Mr.

Maxwell has undertaken in questioning whether police stopped the right vehicle given he maintains the roof of his vehicle is red, and by stating a white cube-like vehicle passed him while pulled over during the traffic stop; and by providing evidence to the contrary by testifying that he was “not speeding that day.” 42) Mr. Maxwell tendered four exhibits as evidence to support his testimony.

It is to the court to give the proper weight to each exhibit. 43) The first two exhibits are colour photographs showing a red and white-coloured ‘Rogers’ Nissan Cube motor vehicle, bearing the same licence plate number – BHNC 780 -- taken from different angles. Both photographs were said to have been taken about a month prior to the traffic stop after the vehicles were ‘wrapped’ with graphics.

They show essentially a Nissan Cube: the front, including the hood, ‘wrapped’ in white or white graphics while the rear of the vehicle is red. 44) Neither photograph specifically shows the colour of the roof of the vehicle – only one photo is even close to including the roof of the vehicle and it ostensibly ends at the ‘lip’ of the roof.

The lip is clearly red and despite the aid of a magnifying glass, the court is unable to tell if the roof of the vehicle is white or if the white that appears on the roof is the result of ‘glare’. 45) Unfortunately each photograph is of neutral value at best to the court. 46) Exhibit three is a copy of the registration for the motor vehicle which is described as red in colour. This exhibit is neutral in that it does not specify the colour of the roof. The exhibit supports Mr.

Maxwell’s contention that the vehicle body was primarily red before the application of graphics. 47) Exhibit four is a copy of a receipt for work completed – described by Mr. Maxwell as a graphics ‘wrap’ – dated January 27, 2012. The receipt, which speaks to two vehicles as having graphics added. The receipt is not helpful in detailing where the white graphics ‘wrap’ was installed on the vehicle; more specifically it does not include any information about the colour of the roof. 48) This exhibit too is one of neutral value to the court. 49) There is no dispute over the date, time, location or Mr.

Maxwell’s identity. 50) The offence of speeding is said to be one of absolute liability, which means either Mr. Maxwell was speeding on the date, place and

time in question, or he was not. The case law cited determines that the prosecution has established a prima facie case, which is to say ithas established at least some evidence on each of the elements of the offence. 51) The onus of the burden of proof beyond a reasonable doubt lies with the prosecution. 52) Without reversing that onus it is available to Mr. Maxwell to a lesser standard of proof – that being on the balance of probabilities –to cast doubt on the prosecution’s evidence or to provide evidence the contrary. Mr.

Maxwell’s exhibits – given their ‘neutral’ value --fail to cast doubt on the prosecution’s evidence or provide evidence to the contrary. 53) This leaves the court with Mr. Maxwell’s testimony to the contrary in that he was not speeding and that police wrongly stopped hisred-roofed Nissan cube, best described as a defence of ‘mistaken identity.’ 54) Mr.

Maxwell said he was not speeding “that day” adding he was keeping up with traffic, at least some of which was speeding alongHwy. 401 that day as is given in evidence by the police witnesses resulting in a number of charges laid for the offence. 55) The court is left with the difficult task of determining credibility for each witness, and to that end, turns its mind to a number ofcases on point to do so. 56) Justice O’Hallaran in Faryna v. Chorney, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.

A) wrote, "If a trial judge'sfinding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are leftwith a purely arbitrary finding and justice would then depend upon the best actors in the witness box. ... Telling the truth is but one of theelements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment andmemory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility....” 57) Raymond v.

Bosanquet (1919), (SCC), 50 D.L.R. 560, 59 S.C.R. 452, 17 O.W.N. 295 states a witness by mannermay create an unfavourable impression of truthfulness and yet surrounding circumstances may point decisively to the conclusion thatthat they are telling the truth. This case goes on to state credibility cannot be gauged solely by whether the personal demeanour of aparticular witness carries conviction of the truth. The test must examine consistency with the probabilities that surround currentlyexisting conditions. 58) Raymond v.

Bosanquet (supra) says, “In short, the real test of the truth of the story of a witness in such a case must be its harmonywith the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that placeand in those conditions.” 59) This case goes on to say a court can satisfactorily appraise the testimony of quick-minded, experienced and confident witness, aswell as those adept in combining exaggeration with half-truths. A witness may sincerely believe something to be true, and testify as such,but may be honestly mistaken. 60) Raymond v.

Bosanquet (supra) says, “For a trial judge to say, "I believe him because I judge him to be telling the truth", is to cometo a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind." 61) In determining reliable testimony the court is mindful of the prohibition of credibility and simply choosing one set of evidence andrejecting the other. A court must be careful to give the defendant's evidence fair consideration in the context of all of the evidence.

Thecourt must avoid pre-mature acceptance of police evidence thus excluding the possibility of being left with a reasonable doubt on thedefendant's evidence, and the evidence as a whole. 62) In R. v. Gagnon 2006 SCC 17 , [2006] S.C.J. No. 17 Justices Bastarache and Abella said, “Assessing credibility is not ascience. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge afterwatching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, mostrecently in H.L. v.

Attorney General for Canada, 2005 SCC 25 , [2005] 1 S.C.R. 401, that in the absence of a palpable andoverriding error by the trial judge, his or her perceptions should be respected.

63) “This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of factare reasonably available. 64) The case under appeal was a two witness case. At the end of submissions the justice of the Peace gave his reasons for judgment.Although the reasons were short they were adequate and left no doubt why he accepted the evidence of the prosecution. An accused isentitled to adequate reasons, not perfect reasons. R. v. Tzarfin, (ON CA), [2005] O.J. No. 3531 (Ont. C. A.). 65) In R. v. Leung [2005] O.J. No. 1888, L.

Favret J. says the proper approach to the burden of truth is to consider all of the evidencetogether and not to assess individual items of evidence in isolation. It is essential that the credibility and reliability of the evidence betested in light of all of the other evidence presented, particularly when the Crown's case depends solely on the unsupported evidence ofany of the witnesses and what are principle issue is that witnesses credibility and reliability.

When the case turns almost entirely on thecredibility of any of the witnesses and the accused, the issue is not which version of the matter is true or whether to believe thecomplainant or the accused, but the issue is whether the Crown's case has been proven beyond a reasonable doubt. 66) In assessing credibility, the following excerpt from the case of R. v. White (SCC), [1947] S.C.R. 268 is helpful: "Thegeneral integrity and intelligence of the witness, has power to observe, his capacity to remember and his antecedence in this statement areimportant.

It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank orwhether he is bias, reticent and evasive. All these questions and others must be answered from the observations of the witnesses' generalconduct and demeanour in determining the question of credibility." 67) The leading decision for assessing credibility is R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 in which the SupremeCourt of Canada laid out the questions the court must answer in assessing guilt based on witness credibility and more specifically, theburdens of proof in evidence law. 68) In the case of R. v. Hull, (ON CA), [2006] O.J. No. 3177 (Ont. C.A.), the Ontario Court of Appeal made thefollowing comments pertaining to the principles enunciated in R. v. W.(D.) and other authorities that prohibit triers of fact from treatingthe standard of proof as a credibility contest.

Put another way, they prohibit a trier of fact from concluding that the standard of proof hasbeen met simply because the trier of fact prefers the evidence of the Crown witnesses to that of the defence witnesses. Such authoritiesdo not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence including the testimony of thecomplainant and in doing so comparing the evidence of the witnesses.

On the other hand, triers of fact have a positive duty to carry outsuch an assessment recognizing that one possible outcome is that the trier of fact may be left with a reasonable doubt concerning the guiltof the accused. 69) That being said, R. v. Boucher (2005) 2005 SCC 72 , 202 C.C.C. (3d) 34, saw Madam Justice Deschamps say “theapproach set out in W. (D.) Is not a sacrosanct formula that serves as a straightjacket for trial courts? Trial judges deliver oral judgmentsevery day and often limit their reasons to the essential points.

It would be wrong to require them to explain in detail the process theyfollowed to reach a verdict. They need only give reasons that the parties can understand and that permit appellate review: R. v. Sheppard,[2002] 1 S.C.R. 869, 2002 SCC 26, and R. v. Burns, (SCC), [1994] 1 S.C.R. 656. A judge, by stating she did not believeMr.

Boucher, was implicitly addressing the first two steps in W. (D.). 70) A judge must be in a position to assess the demeanour of the witness, the content of his testimony and what he omitted. 71) The court turns to Her Honour Justice Sue Mclean’s Checklist for Credibility and Reliability Assessment to aid in the decision-making process. 72) Officers Blackman and Cambridge provided evidence that remained consistent, even through cross-examination. The content oftheir account fares well in terms of coherence, detail and appropriate language and level of knowledge, and Const.

Cambridge – excludedfrom the court during air officer Const. Blackman’s evidence – confirmed he stopped a white-roofed Nissan Cube as directed. 73) The court takes judicial notice of the fact that a Nissan Cube is not a particularly tall vehicle, and that Const. Blackman would havebeen at in a position when addressing Mr. Stewart, to see the colour of the roof.

74) Both officers testified there was ‘moderate’ traffic on the highway at the time of this traffic stop. 75) Officer Blackman’s testimony in particular accurately describes the process of tracking and timing a suspect vehicle from the air over a distance of three kilometers. There is no motive to mislead and no inconsistent statement from the officers. Indeed Const.

Cambridge agreed in cross-examination that while he did not see another cube-like vehicle during the traffic stop it was possible one there was one. 76) Both police witnesses were capable of accurately observing the event and did so, with the aid of their notes to refresh memory, as to time, date, location and identity. 77) Given these tests the court determines both police officers are considered credible and reliable witnesses. 78) The defendant Mr. Stewart provided evidence as a self-represented individual. This evidence appeared reasonably consistent if self- serving.

The court allows a certain leeway given a self-represented individual can be nervous and hesitant given they do not routinely appear in court. To his credit Mr. Stewart was dressed appropriately for court, was well-mannered and respectful, going so far as to thank the officers for their attendance in court. He was well-spoken and had prepared for trial. 79) Mr.

Stewart’s account of events in question fares reasonably well in terms of coherence, but lacks – without reversing the onus on the prosecution of proof beyond a reasonable doubt -- sufficient substantiated detail even to the lesser standard of a ‘balance of probabilities’ to lend credence to his defence of ‘mistaken identity.” 80) The court rules Mr. Stewart’s exhibits are of ‘neutral’ value. There were no inconsistent statements in his evidence. 81) The court is uncertain if Mr.

Stewart as a witness was entirely capable of accurately observing the event given he risks a substantial fine if found guilty of the alleged offence. He appears to have sufficient memory of the event in question. 82) Mr. Stewart seemed to have the ability to communicate accurately. The court takes into account Mr. Stewart was out of his element, and gives him credit for doing his best in his day in court. 83) Where there is conflicting evidence the court must conduct a R. v. W. (D.) (supra) analysis.

This analysis consists of three questions, any one of which an affirmative or positive response operates in favour of the defendant. 84) This court will attempt to address the three questions in R. v. W. (D.) (supra) in detail: 85) “If you believe the evidence of the accused but are left with reasonable doubt, you must acquit.” 86) The court can say -- without reversing the burden of proof beyond a reasonable doubt which lies with the prosecution -- that the prosecution has presented a prima facie case, and that Mr.

Maxwell has not provided any reliable evidence to the contrary --even to the lower standard of a balance of probabilities. 87) While it does not lie with Mr. Stewart to prove his innocence the court concludes none of the exhibits he relies on supports his viva- voce evidence on three points: that he was driving a vehicle with a red roof on the date in question; that there was a white cube-like vehicle in the vicinity when police incorrectly stopped him for speeding; and that he was not speeding at the date, time and place and question but merely keeping up with the flow of traffic. 88) The second R. v.

W. (D.) (supra) question: “If you do not believe the evidence of the accused but are left with reasonable doubt, you must acquit.”

89) The court does not believe the evidence of the accused, and is not left with reasonable doubt. Const. Blackman remains steadfast in his testimony that he spotted a vehicle with a white roof; that he never lost sight of that vehicle – even under cross-examination -- that he properly directed Const. Cambridge to a successful traffic stop of this motor vehicle. Const. Cambridge too remains steadfast in that the vehicle he stopped had a red body but a white roof. Even in Mr. Stewart’s testimony he admits that the hood of his vehicle – which would have been visible to Const.

Blackman in the air – was white. 90) The third R. v.

W. (D.) (supra) question: If you are not left in doubt by the evidence of the accused, ask yourself on the basis of the evidence you do accept if you are convinced beyond a reasonable doubt of the guilt of the accused.” 91) The court, on the basis of the evidence it does accept, finds itself convinced beyond a reasonable doubt of the guilt of the accused. 92) Given the charge, the plea of not guilty entered by the defendant, given the evidence taken from both prosecution and defence, and the submissions taken from both, given case law, and with regard to a court-conducted R. v.

W. (D.) analysis, the court is satisfied on the totality of everything before it that the prosecution has proven guilt beyond a reasonable doubt. 93) As such, there will be a finding of guilt and a conviction registered. Released: October 10, 2012 Signed: “Justice of the Peace R. J. Le Blanc”