R. v. Kee, 2013 ONCJ 830

COURT FILE No.: Old City Hall DATE: 2013-04-02 CITATION: R. v. Kee , 2013 ONCJ 830 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — HYON KEE Provincial Prosecutor’s Office – Old City hall Mr. V. Manoukian ...................................................................................................... for Hyon Kee CAVION J.: Mr. Kee is appealing a conviction of stunt driving imposed on June 22, 2012, by Justice of the Peace Jackson. At the appeal, the appellant sought to introduce new evidence—the Manual which pertains to the BEE III tracking device used by the arresting officer.

The Crown consented. The Manual was introduced. The evidence at the trial established that the police cruiser, equipped with the BEE III radar device in question, was parked on the shoulder of the roadway. The officer said he saw a vehicle being driven at high speed, weaving in and out of traffic. He targeted it and locked the speed at 154 kmh in a 100 km zone. At the trial, Mr. Kee represented himself. The transcript shows he did a respectable job but nevertheless was found guilty. At the appeal, the agent for Mr. Kee pointed to page 15 of the Manual for the BEE III device which gives directions for use.

Under the “Stationary Radar” heading, it reads as follows: “ASD (Automatic Same Direction) technology allows the operator to select a lane of traffic to monitor in stationary mode: in the same lane as the patrol vehicle, in the opposite lane, or in both lanes.” The appellant argued that since the officer was on the shoulder of the road, he was not following instructions. He should have placed his stationary vehicle in the same lane he was monitoring.

At page 7 of the transcript, the officer stated: “And I situated myself on the left shoulder of the Fred Gardiner Expressway, I had parked right underneath the Grand Avenue bridge. I had put myself in that location to observe traffic speeds.” If I understand the appellant’s argument, he would hold that if the police officer is using the stationary mode on the BEE III, the Manual requires the police vehicle to be in the same lane as the traffic which is monitored. How this can be done safely on any lane of the Gardiner Expressway is a good question. But this

interpretation seems to have accepted by Justice R. Boivin of this court, in R. vs. Choudry. In that case, when the appellant’s

interpretation of the

section was put to the officer on the stand, the officer replied: “that’s absurd.”

The BEE III in question is not portable, it is plugged into the dash of the police car. The

interpretation that appellant counsel gives the Manual makes the instrument impractical to use on stationary mode on any busy highway. I have read the entire manual. The appellant’s rigid

interpretation is not accurate. The monitoring is of vehicles either coming towards or leaving the location of the BEE III.

On page 2 of the Manual, it says: “ASD (Automatic Same Direction technology) allows the BEE III to automatically measure the speeds of targets moving in the same direction as the patrol vehicle…ASD allows the radar to measure the speed of targets moving in one direction while completely ignoring targets moving in the opposite direction.” Also, on page 5, the Manual states: “In stationary mode you can select the direction of target you want to monitor…the radar will measure the speed of targets moving in both directions, just like a manual radar will.

As soon as a target is measured, the radar will tell you ….the direction that the vehicle is travelling in addition to the speed that it is travelling.” When these sections are considered, in conjunction with the admittedly poorly worded

section that the appellant is stressing, one can reasonably conclude that the BEE III does not have to be parked on the same live lane of traffic in order to monitor traffic coming towards it. The BEE III can monitor traffic both coming and going towards a stationary patrol car parked on the shoulder of the highway. Had Justice Boivin been advised of these sections, I am confident he would have decided differently. I have read the Justice of the Peace’s judgment and reasons. With great respect to JP Jackson, the approach taken to sentencing may seem unfair to the defendant.

On page 24, after the JP registered a finding of guilty, the Crown said: “in keeping with the principles of denunciation and deterrence and given the danger that’s posed to the public when one is driving at such high speeds, we’re seeking a penalty of $3,000.” The Justice imposed the fine without giving the defendant any opportunity to make submissions on this issue. The defendant asked to time to pay since he had no job and no income. In view of all the circumstances, the fine should be reduced.

After all the defendant did not testify and try and to hoodwink the JP, as many defendants often do, and the fine should have some proportionality to other serious offences like careless driving, under the H.T.A. It is clear the defendant is not a wealthy man and the immediate consequences of the charges were draconian , let alone the conviction. As a result, a fair fine would be $800.00 with 12 months to pay. Signed: “Justice Cavion” Released: April 2, 2013