2011 QCCQ 5865, 2011 QCCQ 5865

Director of Public Prosecution c. Palmateer 2011 QCCQ 5865 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF HULL TOWN OF GATINEAU (Criminal and Penal Division) No: 550-61-020314-106 550-61-020315-103 DATE: June 6, 2011 ______________________________________________________________________ PRESIDING BY GEORGES BENOIT MAGISTRATE JUSTICE OF THE PEACE ______________________________________________________________________ Director of public prosecution Plaintiff v.

Palmateer Jonathan Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The defendant is accused of two counts, one of speeding, 150 kilometres per hour in a 90 zone and the other is passing to the right. [ 2 ] The defendant has testified and acknowledged passing at least one vehicle to the right, supporting a conviction for the offence of passing to the right,

section 346 Highway safety code. [ 3 ] In regard of the speeding charge, the only question in dispute is the reliability of the instrument used to clock the speed of the defendant on his motorcycle. The facts [ 4 ] Officer Cousineau had testified that he was operating a marked police cruiser equipped with calibrated speedometer. He was not on a regular patrol. He was carrying on some administrative duties. [ 5 ] Officer Cousineau was travelling on Blvd. Des Allumettières heading east. As he was stopped at the traffic light, he paid attention to a motorcycle that was stopped also at the same traffic light.

He had no particular reason to look at the motorcycle except for the fact it was early in the spring season, march 21. At this time of the year, motorcycles are quite rare on the road. [ 6 ] Mr Palmateer's vehicle was travelling in the fast lane. There were some vehicles in front of him in the passing lane. The traffic started to move when the light turned green and the vehicles in the fast lane were moving faster than the other car travelling in the left lane.

As soon, the defendant reached the point where he was able to switch lane he merged to the right hand lane and than quickly speeded up at what appeared to be a high rate of speed. With that manoeuvre, the defendant passed to right at least one vehicle. [ 7 ] Officer Cousineau noticed the passing to right by the defendant and there was a lot of speed on the motorcycle.

He followed the motorcycle and had to step very hard on the pedal to catch up with the defendant's vehicle at a speed of 150 k/h for a short distance. [ 8 ] Approaching a curve, officer Cousineau was not able to keep on with the motorcycle still an accelerating course. Although, he kept the defendant's motorcycle in view for most of time he was not in position close the gap between his cruiser and the defendant's vehicle. [ 9 ] At the moment the Gatineau Police Force was conducting a speed trap on Blvd Des Allumettières.

Approaching the speed trap, the traffic on the highway slowed down at or under the limit speed. Unable to go through the traffic, the defendant had to reduce his speed significantly to avoid contact with others vehicles that were blocking the way. Therefore, officer Cousineau was able to pull over the defendant's vehicle. [ 10 ] There was a student observer who was with the police officer in the passenger side of the cruiser. Mr Marc Olivier Paquette has testified that the roaring sound of a motorcycle engine attract attention.

He saw a motorcycle in the right hand lane at what appeared to be an obvious high rate of speed. He stated that officer Cousineau engaged in pursuit right away. The motorcycle after passing to the

right other vehicles got back in the passing lane and kept on increasing speed. Just before entering into a curve, the witness look at the vehicle's speedometer and he realized that they had reached a rate of speed of 150 k/h. The police cruiser followed the vehicle for a short period time maintaining a gap but the motorcycle seemed to be faster and still increasing his rate of speed. [ 11 ] He testifies that officer Cousineau was finally able to pull over the motorcycle.

He states that the defendant was very upset and argued strongly with officer Cousineau about impounding his motorcycle. [ 12 ] The defendant took the stand on his behalf and acknowledged travelling at a top speed of 110 kilometres per hour on Blvd Des Allumettières. He states that he was going with the flow but he did not look at the vehicle's speedometer. He testified about the unjustified impounding of his vehicle. Analysis [ 13 ] In R. v.

W.D. the current leading decision regarding the credibility and I will address the three -steps process as set out by the supreme court of Canada : «First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.» [ 14 ] Credibility has to be evaluated by taking into consideration all circumstances. It is well established in law that the court could reject the defendant's testimony if it isnor supported by corroborative evidence.

Before turning to the application of the law to the facts of this case, I want to emphasize that the only issue is defendant's credibility. [ 15 ] The defendant testified and acknowledged travelling 110 kilometres per hour and he had never look at his speedometer. The only way to know how fast he was travelling is that he has catching up the flow and then he assumes that the flow was travelling at 110 kilometres per hour. In others words, he is asking the court to speculated about his travelling speed. The evidence brought by the defendant's testimony cannot raise a reasonable doubt.

I don't find the defendant credible. That takes care of the first step as set out in Regina v. W.D. [ 16 ] Even thought I don't accept the defendant's evidence, I have to look again to his testimony to find if evidence left me in reasonable doubt. Reasonable doubt has been studied in R. c. Litchus. : « A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense.

It is logically derived from the evidence or absence of evidence. » [ 17 ] The defendant has no clue at what speed he was travelling during the course of speeding up before he was jammed in the flow. [ 18 ] I do accept the officer's evidence. The calibration of the speedometer is a prima facie evidence of an accurated speed.

This assumption of fact has not been challenged by the defendant's evidence. [ 19 ] I find the student-observer's testimony highly persuavive and I accept that he look at the speedometer of the police vehicle and saw a recorded speed of 150 kilometers per hour. [ 20 ] The evidence tendered by the Crowns is beyond a reasonable doubt and I am ready to find the defendant guilty as charged. By those reasons, the Court declares: The defendant guilty on both charges __________________________________ J.PM. Me Isabelle B. Desharnais Counsel for the Director of Public Prosecution Me Wayne Lora Counsel for the defendant

Date of hearing: May 2 nd , 2011