R. v. Perilli, 2011 ONCI 231

Citation: R. v. Perilli , 2011 ONCI 231 Her Majesty the Queen v. Lorenzo Perilli Provincial Offences Court, Brantford Court, File #096761 D. M. MacDonald, J.P. Heard: August 10, 2010, submissions on October 27, 2010, January 26, 2011, March 1, 2011 Judgment: March 30, 2011 Prosecutor for Crown: C. Szoke Agent for Defence: R. Paddon Charge: Stunt Driving, s. 172(1) of the Highway Traffic Act of Ontario , on May 22, 2010, on Brant Road, Brant County. D.M. MacDonald, J.P., (Orally): ……………………………………………………………. THE TRIAL 1 On the trial date of August 10, 2010, OPP officer L.

Montvajski testified that on May 22, 2009, she was operating a marked OPP cruiser on Brant Road (Highway #24) in Brant County, and was travelling northbound at approximately 80 km. per hour. She testified that a red motor vehicle travelling southbound approached her police cruiser, and the officer formed the opinion that the southbound motor vehicle was travelling at a much greater rate of speed than the posted 80 km. per hour for that highway. She testified that she directed a radar device at the oncoming red motor vehicle, and obtained an initial speed of 133 km. per hour, accelerating to 134 km. per hour.

She testified that she monitored the red motor vehicle’s speed for approximately 30-40 seconds. 2 The officer testified that the Genesis II radar device was tested at the commencement of her shift at approximately 7:00 p.m. on May 22, 2009, and close to the conclusion of her shift at 6:22 a.m. the following morning, and on both occasions, the radar device appeared to be working properly, according to the manufacturer’s specifications.

The officer testified that she was familiar with the operation of the radar device that she was using that day, and that she had most recently re-qualified on the operation of this device prior to the case before the court in 2008. She testified that she had been qualified as a radar operator for approximately nineteen years.

She testified that there were no other motor vehicles in such close proximity on the highway that would have interfered with the radar beam at the time that she directed the radar beam at the red motor vehicle, and that there were no other physical obstructions that would have interfered with the radar beam. 3 The officer testified that following the determination of the red motor vehicle’s speed, she made a U-turn on the highway, did not lose sight of the red motor vehicle, and performed a traffic stop of the red motor vehicle, after the motor vehicle had pulled into a private driveway.

She testified that the male driver produced a valid Ontario driver’s licence with a digital photograph and that she was satisfied regarding that the driver of the motor vehicle was the defendant in the case before the court. She also testified that there was a female passenger in the red motor vehicle at the time of the traffic stop, and that the red motor vehicle with Ontario licence number LP24 was a Ford motor vehicle.

She testified that she exercised her discretion and charged the defendant under Section 172(1) of the Highway Traffic Act , as the defendant’s speed of 134 kilometres per hour in a posted 80 kilometres per hour zone was in excess of 50 kilometres per hour (54 kilometres over the posted speed limit).

4 The officer testified that she was not aware of details regarding whether the model of the Genesis II radar device that she was using on the date in question had subsequently been taken out of service by the OPP, and if so, why this decision had been made. 5 The defendant testified that he was operating a motor vehicle on Highway #24 on the date in question. He testified that he had only been on Highway #24 for a short period of time, when he observed the OPP cruiser’s flashing lights behind his motor vehicle.

He testified that at that instant, he observed from the motor vehicle’s speedometer that he was travelling at approximately 80 km. per hour. He testified that while he was travelling on Highway #24, there were motor vehicles in front of him and behind him, and he believed that the OPP cruiser was going to stop someone other than him. He testified that he did not see the OPP cruiser a few moments earlier when it was travelling in the opposite direction on the highway, nor did he observe the OPP cruiser make a U-turn.

He testified that he only saw the cruiser when it was behind his motor vehicle. 6 The female passenger that was travelling with the defendant on the date in question also testified at the trial. She testified that she also did not observe the OPP cruiser until the time of the traffic stop, and although she was not aware of the exact speed that the defendant had been driving and did not look at the speedometer when she observed the lights of the OPP cruiser, in her opinion it was not close to 130 km. per hour, and perhaps was closer to the posted speed limit of 80 km. per hour.

She testified that there were other motor vehicles on the highway, both in front of and behind the defendant’s motor vehicle. THE LAW 7 Section 172(1) of the Highway Traffic Act, R.S.O, 1990, c. H.8, as amended, states: 172.

(1) No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager. 2007, c. 13, s. 21 . SUBMISSIONS 8 The defendant’s agent argued that because the defendant had only turned onto Highway #24 a short time before he was stopped by the OPP officer, it was more likely that he was only travelling at the posted speed limit of 80 km. per hour, rather than the speed indicated by the OPP officer of 133 and 134 km. per hour.

He argued that the defendant and his female passenger both testified that there were other motor vehicles on the highway on the date in question, and both described the highway as busy. He argued that perhaps the officer had another motor vehicle in the radar beam, rather than the defendant’s motor vehicle. 9 The defendant’s agent argued that since the radar unit that was being operated by the OPP officer on the date in question was no longer being used by the OPP, the accuracy of the device was in question.

The defendant’s agent based this particular argument on sworn testimony from an OPP officer given at a motion hearing on July 30, 2009 in Thunder Bay, Ontario (citation: Thunder Bay (City) v. Millar , 2009 ONCJ 485 ). A transcript of the motion hearing was provided to the court, in which the following testimony was given by OPP Sergeant Bel (at page 24, line 25): “…The Genesis II is the Genesis II K which referred to the K band. It is the model that’s has now been removed from service.

We no longer have the Genesis II models in service…” 10 The defendant’s agent argued that a failure to provide specific details regarding the tracking history of the specific radar device would also put the accuracy of the unit in question, as would the OPP officer’s failure to give specific details regarding the testing that had been conducted by the officer. He argued that because reasonable doubt has been raised regarding the accuracy of the radar device, that that doubt should lead to a finding of not guilty with respect to the defendant.

The defendant’s agent argued that although he had made several attempts to obtain additional information regarding when (or if) the Genesis II radar device had been discontinued from use by the OPP in Brant County; he was unable to obtain this information. 11 The prosecutor argued that the OPP officer had testified that she observed a motor vehicle approaching her in the opposite direction, and at the time that she directed the radar beam at that motor vehicle, there were no other motor vehicles between her cruiser and the target motor vehicle.

The prosecutor noted that the defendant testified that he looked at his speedometer when he first observed the OPP cruiser’s lights behind his motor vehicle, and found that he was travelling at approximately 80 km. per hour, the posted speed limit for Highway #24. However, the prosecutor argued that prior to seeing the lights of the OPP cruiser, the defendant did not testify

how fast his motor vehicle was travelling when the OPP cruiser was approaching his motor vehicle from the opposite direction on Highway #24 at the instant that the OPP officer directed the radar beam at the defendant’s motor vehicle. The prosecutor argued that although the defendant’s passenger testified that she was comfortable with the speed that the defendant was operating the motor vehicle prior to the traffic stop, she too was unable to determine the speed that the motor vehicle was travelling when the OPP officer directed the radar beam of the Genesis II radar device at the defendant’s motor vehicle.

The prosecutor noted that there was no dispute regarding the date, location the identity of the defendant, or that on the date in question, the defendant was operating a motor vehicle on Highway #24 in Brant County, nor was there any evidence presented to the court that the radar device was not working according to the manufacturer’s specifications on the day in question. AUTHORITES 12 A number of authorities were presented by the defendant’s agent for consideration by the court.

The cases were mainly concerned with what the courts felt were speeding charges where deficiencies were noted in the evidence presented by the Crown with respect to the use of radar devices. However, in the decision of R. v.

Vancrey , [2000], ONCA, which is a case dealing with a charge of speeding, the Court of Appeal noted the following in Paragraph 1: “…The issue before the court is the adequacy of the evidence presented by the Crown of the accuracy and reliability of the device to measure the speed of the appellant’s vehicle on the date of the offence…” In Paragraph 18 of the same decision, the Court, referring to an earlier decision of D’Astous v.

Baie-Comeau (Ville) , [1992] from the Quebec Court of Appeal noted the following: “… the Quebec Court of Appeal again addressed the issue of the evidentiary base necessary for a conviction for speeding based on a radar reading. In that case the court held that judicial notice could be taken of the fact that radar is used to measure the speed of automobiles and that the principle upon which it is based can be found in any encyclopedia. However, in each case, the Crown must still prove that the particular radar device used was operating accurately at the time.

To do that the Crown must show: • The operator was qualified: he followed a course, he passed an exam, he has several months experience; • The device was tested before and after the operation; • The device was accurate as verified by a test and that the tuning fork used was accurate. Once evidence is led to demonstrate those facts, then the radar reading becomes prima facie evidence of the speed of the vehicle, subject to evidence to the contrary, if any …” REASONABLE DOUBT 13 Lord Denning in the criminal case of Miller v.

Minister of Pensions [1947] 2 All ER 372 , KBD, spoke about proving a case beyond a reasonable doubt: "the…degree of cogency…required in a criminal case before an accused person is found guilty…is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.

If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable', the case is proved, but nothing short of that will suffice". DECISION

14 I find that the Crown has met the burden of proving all of the essential elements of the case of stunt driving as defined by section 172(1) of the Highway Traffic Act of Ontario beyond a reasonable doubt. With respect to the credibility of the witnesses (the OPP officer, the defendant and the defendant’s female passenger), I find that all of the witnesses provided credible testimony.

However, the OPP officer’s testimony regarding the high rate of speed of the defendant’s motor vehicle when she first observed the defendant’s motor vehicle travelling in the opposite direction on Highway #24, was the speed that she determined, with the assistance of the Genesis II radar device.

Both the defendant and the female passenger focused on the speed of the defendant’s motor vehicle as being approximately the posted speed limit, after the OPP officer had made a U-turn with the police cruiser, turned on the cruiser’s emergency lights, and was following the defendant’s motor vehicle in order to perform a traffic stop. The officer did not testify that the defendant’s motor vehicle was travelling faster than the posted speed limit when she had completed her U-turn and was following the defendant’s motor vehicle.

I find that the OPP officer and the two parties travelling in the defendant’s car are talking about two separate time periods, and although the defendant may well have been travelling at the speed limit when he was being followed by the OPP cruiser, he was travelling well in excess of the posted speed limit when the defendant’s motor vehicle was approaching the OPP cruiser from the opposite direction. The officer is the only witness who provided evidence to the court regarding this specific time period. 15 I am satisfied that the officer’s testimony has met the requirements set out in R. v.

Vancrey noted above, in that the officer appears to have been trained and re-qualified in the use of the Genesis II radar device, and that the device was working properly according to the manufacturer’s specifications when the officer tested the device before and after her encounter with the defendant’s motor vehicle. I have thoroughly read the support material provided by the defendant’s agent regarding steps that he has unsuccessfully taken to obtain additional information regarding the OPP’s use of the Genesis II radar device during the time period following this charge from May 2009.

I am not persuaded that reasonable doubt has been raised by the defendant’s agent, based on suppositions that perhaps the device, which possibly may no longer be used by the OPP, may not have been working properly on the date in question. The device appears to have confirmed the OPP officer’s initial observation that the defendant’s motor vehicle, at the exact instant that the radar device was directed at it, was travelling at a rate of speed greater than 50 km. per hour over the posted 80 km. per hour speed limit.

There was no evidence before the court that the radar device was not working properly on the date in question, and although the OPP Sergeant in Thunder Bay may be aware that this specific device was not being used in the Thunder Bay area in July 2009, there was no evidence before the court that the device was no longer being used on May 22, 2009, the date of this offence, by the OPP in Brant County. 16 As I find that all of the essential elements have been established beyond a reasonable doubt, I find the defendant guilty of this offence, and a conviction will be registered.

Released: March 30, 2011 Signed: “Justice of the Peace Dan M. MacDonald”