2023 QCCQ 5874, 2023 QCCQ 5874

Director of Criminal and Penal Prosecutions c. Banaroch 2023 QCCQ 5874 COUR OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL LOCALITY OF MONTRÉAL « Criminal and penal division » N°: 500-61-544666-226 DATE: July 21, 2023 ______________________________________________________________________ BY THE HONOURABLE GENEVIEVE CLAUDE PARAYRE PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecution v.

LEE BANAROCH Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On June 27, 2021, Officer Larsen is standing outside his police car at the end of Édouard-Montpetit entrance of Highway 15 north and conducts a speeding operation. [ 2 ] In the centre lane, he observes Mr. Banaroch’s vehicle approaching two others that are driving some 400 metres ahead.

He estimates its speed at 130 km/h, whereas the speed limit is 70 km/h. [ 3 ] Using his cinemometer, he first registers a speed of 121 km/h, then 122 km/h, 123 km/h and finally 124 km/h. Once the first two vehicles pass his position, he takes a final reading of the speed of Mr. Banaroch’s vehicle and obtains, at 240.5 metres, a result of 125 km/h. He points out that the last capture is between the vehicle’s two headlights and that, at this moment, there are no obstacles or vehicles around Mr. Banaroch. [ 4 ] Officer Larsen then observes Mr. Banaroch slowing down shortly before his position.

He proceeds to intercept him and issues a statement of offence for driving over the speed limit [1] . [ 5 ] On that night, Mr. Banaroch explains that he’s acting as the designated driver for three of his friends. They leave downtown Montreal for the Orange Julep restaurant around 2:00 a.m. and first takes Highway 720 to exit at Highway 15 north. They are in no rush, are listening to music and having good conversation. [ 6 ] He has the habit to activate his cruise control whenever he gets the chance, always setting it at 10 km/h over the legal limit.

Thus, upon entering Highway 15 north, he activates and sets it to 80 km/h. [ 7 ] Just before Sherbrooke, two black cars arrive very fast from his right side and merge onto the middle lane in front of him. Their speeds make him double-check his own, just to be sure he’s not going too slow or too fast, and it indicates 80 km/h. The two cars then slowly increase their distance from him. [ 8 ] As they’re about 300 metres away, they suddenly “slammed on their brakes” [2] . In doing so, they close the distance with him.

As he kept driving, he looks for an explanation and notices, on the right shoulder lane, the presence of two police officers sitting inside their vehicle. [ 9 ] He passes the police car, changes to the right lane to exit at Jean-Talon and soon after, sees the two cars speeding up again, thus increasing the gap with him. [ 10 ] Above all, Mr. Banaroch denies being the perpetrator of the alleged offence. He claims that Officer Larsen confused his car with one of the two others in front of him. He also denies driving at the speed in question.

His version is reliable and credible, and he should therefore be acquitted of the infraction. [ 11 ] The prosecution disagrees and considers that Mr. Banaroch’s testimony lacks credibility and reliability. Officer Larsen clearly saw the two other vehicles, and his last capture occurred when Mr. Banaroch was alone in his sight. Moreover, it is recognized that the act of activating a cruse control cannot raise a reasonable doubt as to the speed captured. Also, Mr. Banaroch never indicates that he looked at his speed at that moment, or around the moment he sees the police officer.

GENERAL PRINCIPLES [ 12 ] It is recognized that when a cinemometer is properly tested and used by a qualified operator, the speed captured by the device is prima facie evidence of its accuracy. Against this, a defendant can present evidence to the contrary, tending to show that the measurement taken is not accurate [3] . This evidence must be reliable and sufficiently precise [4] . [ 13 ] A defendant may also present a defence of confusion to contest that he is the perpetrator of the offence [5] .

In this context, the prosecution has the onus to prove the identity of the defendant beyond any reasonable doubt and does not have the benefit of prima facie evidence that needs to be rebutted [6] . [ 14 ] When faced with contradictory versions, the evaluation of the evidence must respect the guidelines set out by our Supreme Court in R . v. W. (D.) [7] , which can be summarized as follows. [ 15 ] First, if the Tribunal believes Mr. Banaroch’s testimony, it must acquit.

Second, even if the Tribunal does not believe him, if his testimony, evaluated with all the evidence or the absence of evidence, leaves a reasonable doubt, it must also acquit. Finally, even if the evidence submitted leaves no reasonable doubt, the Tribunal must evaluate the evidence to determine whether it is strong enough to convince, beyond a reasonable doubt, the defendant’s guilt in relation to the offence. [ 16 ] The assessment of Mr. Banaroch’s testimony cannot be done in a vacuum.

Rather, it must consider all the evidence presented. [ 17 ] Moreover, the Tribunal must always assess testimony in terms of its credibility and reliability. These are two distinct notions. On the one hand, credibility refers to a person’s willingness to relate the facts truthfully, honestly, and correctly. On the other hand, reliability refers to the ability to use one’s memory and to relate the facts with sufficient detail and precision.

In its evaluation, the Tribunal must not dissect each sentence uttered, but rather examine the whole testimony. [ 18 ] With these concepts in mind, it is now time to move on to the proper analysis. ANALYSIS 1. Mr. Banaroch’s testimony [ 19 ] Analysis of Mr. Banaroch’s testimony reveals adjustments and contradictions that affect its credibility and reliability. These don’t just concern secondary or collateral aspects, but also, and above all, the description of the events at the heart of his defence. [ 20 ] Here are a few non-exhaustive examples. [ 21 ] Mr.

Banaroch first indicates that he has a vivid memory of the event and is therefore able to provide precise details such as the distance between the two cars in front of him, the moment he activates his cruise control or the fact that he saw two police officers in their car. However, he later says that he is unable to recall minor details such as the distance between the police vehicle and his own, or the presence of a speed sign. [ 22 ] His description of the other vehicles during examination is limited to their colour.

In cross-examination, he first adds that they are SUVs and later specifies that one of them is a GMC. [ 23 ] During his interrogation, he states that whenever traffic permits, he activates his cruise control and sets it 10 km/h above the speed limit. This explains why he’s travelling at 80 km/h on Highway 15, where the limit is 70 km/h. [ 24 ] However, his version varies regarding his speed on Highway 720.

First, in regards of the speed limit, in cross-examination, he states that the speed limit on this highway is 100 km/h, then modifies his version by saying that he is not sure, and finally states that he does not remember. [ 25 ] Secondly, he clearly remembers setting his cruise control to 70 km/h rather than 110 km/h because of the short distance to Highway 15 and his desire to drive at a constant speed.

Also, by driving at this speed, he just needs to press a button in his vehicle to accelerate directly to 80 km/h once on Highway 15. [ 26 ] Although, he later indicates that once he reaches the junction with Highway 15, he deactivates his cruise control and reduces his speed to safely take the exit. It is only once he passes it that he reactivates his cruise control, setting it at 80 km/h. [ 27 ] Mr. Banaroch also says the two cars pass him at such a speed that he immediately checks his speed.

However, he goes on to say that the vehicles slowly pull away from him. [ 28 ] These examples affect the credibility and reliability, so that the Tribunal gives very little probative value to the evidence he offers. That said, the Tribunal must also consider whether the evidence presented leaves a reasonable doubt. 2. Evidence to the contrary [ 29 ] The evidence to the contrary submitted by Mr. Banaroch cannot be considered accurate nor reliable and is not susceptible to raise a reasonable doubt. Here’s why. [ 30 ] Mr.

Banaroch provides numerous details of his recollection of events, but he only mentions looking at his speed once, namely

when the two vehicles pass in front of him. However, no information is provided as to his approximate location when he sees the police officers, or to the approximate distance between the moment he looks at his speed and the position of the police officers. [ 31 ] Although it is common knowledge that Highway 15 is partly located on the island of Montreal, the distances between its beginning and the Édouard-Montpetit entrance is not [8] . [ 32 ] Furthermore, his claim that he is travelling at 80 km/h at the time of capture is only supported by the fact that his cruise control is activated.

In his view, since the function of a cruise indicator is to regulate speed, it’s impossible for him to have accelerated or slowed down.

This contradicts the fact that when vehicles overtake him, he checks his speed to see if he's going too fast or too slow while his cruise control is activated. [ 33 ] As the Court of Appeal points out: “In the absence of any evidence on the part of the accused that he was paying attention to his speed at the time he was detected by the device, and that his speed was lower than the speed established by the cinemometer, the mere fact of putting in evidence that he had activated the speed regulator cannot constitute valid evidence to the contrary.

Indeed, even if the cruise control is on, it is still possible to accelerate. [Translated] [9] ” [ 34 ] Even if we set aside the credibility analysis, the information provided by Mr. Banaroch does not constitute precise and relevant evidence in law capable of raising a reasonable doubt as to the speed measured by Officer Larsen. 3. Confusion [ 35 ] According to Mr. Banaroch, the two vehicles overtake him at high speed and slowly distance themselves from him.

When they are some 200 metres away, they suddenly accelerate over 100 metres and then abruptly break. [ 36 ] It is therefore somewhere between the moment when the vehicles pass Mr. Banaroch and the moment when they brake that the confusion takes place. [ 37 ] Although it is clear that the events described occur before the position of the police vehicle, Mr. Banaroch provides no details as to the approximate distance separating them from the police vehicle. [ 38 ] The Tribunal is therefore faced with a mere hypothesis with no probative value as to the possibility of confusion. [ 39 ] But there's more.

At no time does Mr. Banaroch mention the description of his vehicle or how it resembles the two others. Knowledge on this subject is limited solely to what the statement of offence says: "Landr - Disco (noir) - VR". To draw the conclusion that this vehicle is similar to those in front of Mr. Banaroch does not respect the teachings of judicial knowledge. [ 40 ] In this regard, the more a fact has a direct impact on the outcome of a trial, or the closer it is to the heart of the issue, the more courts must subject it to stringent verification before automatically admitting its existence [10] . [ 41 ] In fact, Mr.

Banaroch’s recollection regarding the presence of the other two vehicles is essentially the same as the one of Officer Larsen who indicates that he sees three vehicles in the centre lane and that the first two are about 400 metres ahead of the last one. The versions differ afterwards, and Mr. Banaroch provides nothing to support his affirmation that a confusion occurred. [ 42 ] Our Supreme Court states: “ reasonable doubt is not a far-fetched or frivolous doubt.

It is a doubt based on reason and common sense that logically arises from the evidence, the lack of evidence or absence of reliable evidence ” [11] . [ 43 ] Nothing in the facts related by Mr. Banaroch is susceptible to raise any reasonable doubt as to the identity of the vehicle captured. 4. Is the proof beyond a reasonable doubt? [ 44 ] The evidence shows that Constable Larsen is a qualified operator, that he used a properly calibrated cinemometer, that he visually estimated Mr.

Banaroch’s speed and that he captured him at 125 km/h in a 70 km/h zone. [ 45 ] His account of the events is detailed and precise, and there is no reason for the Tribunal to conclude that it is neither credible nor reliable. CONCLUSIONS [ 46 ] Mr. Banaroch’s recollection of events, as well as all the evidence, leaves no reasonable doubt as to the speed measured or the identity of the offender. [ 47 ] On the contrary, the evidence shows beyond a reasonable doubt that Mr. Banaroch is driving at 125 km/h in a 70 km/h zone on June 27, 2021.

FOR THESE REASONS, THE COURT: [ 48 ] DECLARES Lee Banaroch guilty of driving at a speed of 125 km/h in a 70 km/h zone.

[ 49 ] IMPOSES a fine of $580.00 and, in the absence of specific representations on or before September 5, 2023, imposes cost and contribution. [ 50 ] GRANTS , in the absence of specific representations on or before September 5, 2023, a delay of 6 months to pay this amount. __________________________________ Honourable Geneviève Claude Parayre Presiding Justice of the Peace Me Marie-Noëlle Lachapelle-Fakiris Director of penal and criminal prosecution For the prosecution Me Gabrielle Poulin Duplessis avocates criminalistes For the defendant Hearing date: April 26, 2023