Durham (Regional Municipality) v. Morillo, 2017 ONCJ 958

Ontario Court of Justice CITATION: Durham (Regional Municipality) v. Morillo, 2017 ONCJ 958 DATE: August 24, 2017 J. Bateman for the prosecution Lindsey Morillo on his own behalf R E A S O N S F O R J U D G M E N T COOPERSMITH, J.P. (Orally): You come before the Court charged with speeding 107 kilometres per hour in a 70 kilometre per hour zone contrary to

section 128 of the Ontario Highway Traffic Act . We heard evidence from Durham Regional Police Officer Boone and we heard evidence from you. The officer indicated that your vehicle was doing 107 kilometres per hour in a 70 kilometre per hour zone. This was August 19th, 2015 around 3:50 in the afternoon. This was on Regional Highway 2 at Hancock Road in Clarington which is in Durham, and the officer bases that statement on his visual observations of your vehicle coming westbound on Highway 2.

The officer was going eastbound approaching Hancock Road, and he said it appeared your vehicle was going faster than the posted 70 kilometre per hour speed. So those were his observations. You were pulling away from the other westbound motor vehicles. The officer used a Genesis II radar device which he indicated was a device used to accurately measure the speed of a moving motor vehicle.

I'm satisfied the officer is adequately trained to operate the specific radar device and that he tested it in accordance with manufacturer's specifications to determine that he was satisfied the device was functioning properly and accurately registering speeds. He also indicated that he ensured the device operated properly in reference to your motor vehicle. The reading on the radar device that he received was 107 kilometres per hour. He properly identified you as the driver of the motor vehicle that he had targeted with the radar device and that that speed confirmed his visual observations.

That's the basis for him determining you were doing 107 kilometres per hour. You are saying, "I wasn't speeding, I was doing 70 kilometres per hour." You indicated that the mechanic had told you not to go fast because your rear light had been glued, so go slower, so you took a different route and you went along Highway 2. You thought it was an 80 kilometre per hour zone until Rundle where you saw the speed limit. You went up Courtice Road before Nash when you saw the officer behind you. You didn't have any documents demanded. The officer did properly identify you.

I don't think there's any dispute with identity, of who was driving the Lexus motor vehicle that the officer targeted that day. The officer also indicated that his observations as you went past him was an older Lexus, blue vehicle with licence BEED 440, and that was the vehicle that he had targeted, the vehicle that he stopped going up Courtice, but that he had targeted near Hancock Road in Clarington.

Now, I know there was some confusion as to whether he saw your vehicle at Courtice or at Hancock, and I think the confusion here from the evidence that I heard and the confusion that could have arisen was that the officer saw your vehicle approaching Hancock. He could have been at Courtice when he observed your vehicle at Hancock. That was my understanding of what happened, that he saw you when your vehicle was near Hancock Road doing that speed, and that's what's on the ticket. MR. MORILLO: Am I allowed to interject, Your Worship?

THE COURT: No. There were some questions you put to the officer about why he said a newer vehicle instead of an older vehicle that he's now saying at the earlier trial, spelling mistakes. I'm not concerned about how the officer misspells things in his notes. Handcock or Hancock, certainly the meaning is there and the officer's taking the notes to the best of his ability. Whether the officer tried to pull you over on Highway 2 or after you had turned up going towards Nash is, to me, not relevant to what you were doing when you were driving westbound on Regional Road 2 at Hancock Road.

That's what I call surplusage. I'm satisfied though, you may not have seen him trying to pull you over on Highway 2, so I'm not going to give much weight to the officer's testimony on that or your testimony to say, "Well, he just tried to pull me over after I turned off of Highway 2." That's surplusage. It has nothing to do with the charge before the Court, it occurred after the charge and it's not relevant to an element of this offence. You indicated that you were going with the flow of traffic, you knew you were doing 70. In cross-examination the prosecutor asked you, "Okay.

So you were pulled over August 19th for a speeding ticket?" You said you were never told it was for speeding, but you pulled over as soon as you saw the officer's lights on. They might have been on before that, sir. You may not have seen them on. You believed you were doing 70 because you saw the 70 sign?, and you said, "Yes, at Rundle that's the sign." You were given every opportunity during cross-examination to give reasons why you believed you were doing 70 kilometres per hour. You indicated you didn't have your cruise on.

You never indicated during your examination in-chief – in other words, your evidence – or your cross-examination that you used a measuring device called the speedometer to determine that you were going 70 kilometres per hour. Now what we have is something that I call a “he said/he said”. Issues of credibility have arisen, so I have had to apply the provisions of R. v. W.(D.) , [1991] S.C.R. 742. It's a Supreme Court of Canada case from 1991, and I go through three steps here.

First, it provides that if I accept your evidence, as it's a complete denial of an essential element of the offence I would dismiss the charge. Next, even if I didn't accept your evidence I'd have to go on to consider whether or not it raises a reasonable doubt, and if I have reasonable doubt I would dismiss the charge against you. It would be only if I rejected your evidence as there was convincing, credible evidence that it was either untruthful or unreliable that I would go to the third step of R. v.

W.(D.) , and at that point I would consider all of the un-rejected evidence in this matter to ensure there was evidence I did accept that established your guilt on the charge before the Court beyond a reasonable doubt. That's the standard of proof required in these courts. These are applications of our basic principles, that everyone is presumed innocent until their guilt has been proven beyond a reasonable doubt. The burden rests with the prosecution to prove that guilt.

Now, I'm also very well aware not to turn this into a credibility contest between you and an officer and simply choose one side without properly and carefully giving the other side fair consideration of the evidence in the context of all of the evidence. So I'm not jumping to any premature acceptance of one party over the other, but what I am left here is an offence of speeding 107 kilometres per hour in a 70 kilometre per hour zone. The differences between you and the officer is the officer said you were doing 107 kilometres per hour, you said you were doing 70 kilometres per hour.

The officer, as I indicated, used his visual observations, he used a radar unit that accurately measures speed of moving motor vehicles to register 107. He's adequately trained to use it. He tested it, he ensured it operated in reference to your vehicle. He identified you as the driver. You told me you saw the sign of 70 and you weren't using your cruise control, there were vehicles in front of you and behind you, but I heard no evidence of what the vehicles in front of you or behind you were doing, what their speeds were.

I heard no evidence that you used any reliable instrument upon which you could say you were doing 70. It was because you saw the 70 sign at Rundle and there were vehicles, you were keeping up with traffic. You yourself said that if traffic on the 401, which we know is 100 kilometres per hour, is doing over 100, you will do over 100, but you didn't tell me the speed that these other vehicles were doing. And because a mechanic says, "Don't go too fast", is 70 too fast, is 80 too fast, is 150 too fast?

You didn't say, "I wasn't speeding because the mechanic told me not to speed." You said, "The mechanic told me not to go too fast." So I have to look at, whose evidence can I rely on? Well, I'll tell you, the one who used a device, the one who compared their visual observations, the one who is trained to use that device, made sure it was functioning properly. That's the evidence I'm going to rely on, not your evidence where you saw a sign that said the speed limit was 70, that you had vehicles in front and behind you and you were keeping up with traffic. That is not as reliable the officer's evidence.

For that reason, I am going to accept the evidence of the officer and I find you guilty of speeding 107 kilometres per hour in a 70 kilometre per hour zone contrary to

section 128 of the Highway Traffic Act . There will be a conviction registered. It will be on your driving record with the Ministry of Transportation.