R v. DOUGLAS SCOTT, 2019 QCCQ 1243

Director of Criminal and Penal Prosecutions c. Scott 2019 QCCQ 1243 COURT OF QUEBEC CANADAPROVINCE OF QUEBECDISTRICT OF MONTREALCriminal and Penal DivisionNo: 500-61-467275-179 DATE: March 12, 2019 BY JOHANNE WHITEPRESIDING JUSTICE OF THE PEACE DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS PROSECUTORv. DOUGLAS SCOTT DEFENDANT JUDGMENT [1] Mr.

Scott is accused of driving his car at a speed of 122km/h in an area where the speed limit is 70km/h. [2] He denies driving at that speed since his car is equipped with a Driver Information System (“DIS”), which signals when he drivesover a certain speed. [3] He adds that he was driving in the middle lane, not in the left lane where the police officer saw the speeding car. JW1092 QUESTIONS AT ISSUE 1. Does the use of a Driver Information System (DIS) constitute contrary evidence raising a reasonable doubt? 2.

Does the testimony of the defendant regarding his speed, the lane in which he was driving and the confusion between him andanother car on the road by the police officer raise a reasonable doubt? 3. Did the prosecution prove this case beyond a reasonable doubt? THE LAW [4] When the radarist's competence, proper use of the laser and good functioning of the device is established, the speed indicated bythe same device is prima facie evidence of the speed of the vehicle, as decided in D’Astous[1]. [5] To rebut this, the defendant may present contrary evidence in order to raise a reasonable doubt.

The defense has no burden ofpersuasion and thus no obligation to show that the speed measured and indicated by the officer is, in fact, incorrect. [6] The contrary evidence may arise from the testimony of the defendant. For example, consulting the speedometer at the time of theoffence may be considered as contrary evidence. However, the testimony must be precise in order to be relevant in law and to beconsidered valid and admissible evidence to the contrary. A simple estimate is insufficient, as discussed in Granger c. Ville deMontréal[2].

ANALYSIS [7] The Defendant and the police officer do not share the same version of the events that occurred on Highway 20. [8] When confronted with two opposite versions, the Court must not decide whether to believe the defendant’s evidence or theprosecutor’s evidence. Instead, it must rely on the rule established by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742: 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 whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [9] When assessing the credibility of a defendant, the Court must, however, take into account the evidence as a whole, as establishedby the Supreme Court of Canada in R. v. L.(D.O.), (SCC), [1993] 4 S.C.R. 419: The trial judge applied the proper test for weighing the evidence.

Whether an account given by an accused might reasonably be true isnot the proper test of whether the Crown’s evidence should be rejected. It is simply one factor in assessing the overall impact of theevidence as a whole. The only question for the trier of fact at the end of the trial is whether or not, on the whole of the evidence, theCrown has proved its case beyond a reasonable doubt. If it has, the accused must be convicted. If there is a reasonable doubt, the accusedmust be acquitted. [10] Does the Court believe Mr. Scott’s testimony?

Or, is the Court left with a reasonable doubt, considering the evidence as a whole? 1. The use of a Driver Information System (DIS) [11] In P.G.Q v.

Robitaille[3], the Court of Appeal made the following comments on the evidence required for objects of common use: «S'il fallait être obligé de prouver dans chaque cause de vitesse que l'odomètre était en bon état d'opération, il faudrait de la même façonfaire une preuve par expert de l'exactitude d'une montre chaque fois qu'il s'agirait de prouver l'heure d'un événement et il faudrait avoirrecours à des experts pour prouver qu'une mesure ou une règle est en parfait état chaque fois que l'on veut mesurer la distance en piedsou en pouces d'un objet à un autre, etc.» [12] In the examples given by our Court of Appeal, a watch is indeed conceived to give time, a rule to measure distance, and aspeedometer to assess speed.

The primary function of a DIS however, is not to establish the speed of a car. [13] The examples given by the Court of Appeal cannot be applied on a DIS simply because it is not an object of common use. How isit activated and deactivated? For example, a hands-free phone system, such as Bluetooth is available in many cars. However, such asystem is sometimes deactivated and must be reprogramed. Is it the same for the DIS? The Court does not know because no evidence onthe device was presented in Court.

The reliability of a DIS as well as its efficiency at the time when the offence occurred was notdemonstrated at trial, and the Court has no judicial knowledge of this device. [14] In a similar case, in which it was argued that the speed displayed on a GPS was contrary evidence raising a reasonable doubt, theSuperior Court came to the following conclusion[4]: [16] «Or, le premier juge, faisant remarquer que l'appelant n'avait aucun expert pour prouver la fiabilité de son appareil GPS Garmin,permet un ajournement afin que celui-ci en trouve un. [17] Cependant, à la reprise de l'enquête, le Tribunal refuse de reconnaître comme expert le témoin ingénieur mécanique, vu sonmanque d'expertise eu égard à l'instrument GPS Garmin et, lors de l'audition de l'appel, l'appelant allait jusqu'à reprocher au premier jugele fait qu'il ne lui ait pas permis de se trouver un autre expert. [18] Donc, à défaut d'accepter le fait que les deux instruments de qualification de vitesse de l'appelant soient en soi une preuvecontraire, le premier juge a, à bon droit, rejeté cette défense.» [15] Furthermore, a parallel could also be made with the Court of Appeal’s decision in Thibault[5], where it was decided that the use ofthe cruise control could not be considered contrary evidence if no verifications of the speedometer were made when the offence wascommitted.

In conclusion, the testimony of the defendant to the effect that at the moment of the offence, the DIS in his car was on andthe alarm did not warn him that he was driving over the speed limit cannot be considered contrary evidence. 2. The testimony of the defendant regarding his speed, the lane in which he was driving and the confusion between his car andanother car on the road by the police officer [16] M. Scott’s testimony regarding his speed is vague and imprecise: “I was going with the flow”, “I believe I was going between 80and 90”.

When he first mentioned looking at his speedometer was when he saw the patrol car behind his car: “When I saw the policeofficer in my rear-view mirror I looked at my speedometer and I was going over the limit (…)”. At that point, it was too late, the policeofficer had already clocked the speeding car. [17] He did mention seeing the radar operator on the road at a distance he estimated “at least 200, 300 yards ahead of me”. How heestablished that distance while driving and going with the flow was not explained.

However, even if he did see the police officer, henever mentioned looking at his speedometer at that time. Beliefs and estimations are not enough to raise a reasonable doubt. [18] Mr. Scott believes that he is the victim of a confusion by the police officer who intercepted the wrong car. He mentioned that hewas driving in the middle lane and that a dark car in the other lane passed him. Where or at what distance from the police officer’sposition this occurred is not detailed by the defendant.

It is an important detail, since the police officer wrote in his report that the carwas clocked at a distance of 207.9 meters from his position. Furthermore, although he implies that he was driving in the middle lane, aspart of the pack of six cars driving at 90 km/h described by the police officer, he never mentioned those other cars, or his position withinthis pack. Taking into account the evidence as a whole, the Court does not believe the version of the defendant and cannot conclude thatit raises a reasonable doubt.

3. Did the prosecution prove this case beyond a reasonable doubt? [ 19 ] The proof presented by the prosecution was documentary evidence. The written report contained all the essential elements required by D’Astous . The police officer added details, such as his observations of the pack of six cars in the middle lane which enhanced the credibility of the police officer’s report. His statement that he never lost sight of the speeding car was not contradicted by the defendant’s testimony. The offence occurred during daytime, on a clear day, around noon. The prosecution proved its case beyond any reasonable doubt.

FOR THESE REASONS, THE COURT: FINDS THE DEFENDANT guilty of the offence held against him ; CONDEMS THE DEFENDANT to pay the minimal fine of Five Hundred and Thirty Dollars (530.00$); SETS THE REPRESENTATIONS, according to

section 224 of the Code of Penal Procedure, regarding the costs or the delay to pay the fine on March 25, 2019 at 14h00, room 5.08. 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 the costs, and the Court will grant a delay of THREE (3) months to pay. __________________________________ Johanne White Presiding Justice of the Peace Me Alexandra Bénard For the Director of Criminal and Penal Prosecutions Me Pierre L’Écuyer Morneau, L’Écuyer, La Leggia et Associés For the Defendant Date of hearing: February 11, 2019