2023 QCCQ 917, 2023 QCCQ 917

Director of Penal and Criminal Prosecution c. Daniel 2023 QCCQ 917 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL LOCALITY OF MONTRÉAL Criminal and penal division N° : 500-61-530499-210 DATE : February 28, 2023 ______________________________________________________________________ BY THE HONOURABLE GENEVIÈVE CLAUDE PARAYRE PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ DIRECTOR OF PENAL AND CRIMINAL PROSECUTION Prosecution c.

ARSANY MAGDY AN DANIEL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] On December 5, 2020, Officer Vachon is conducting a laser radar operation on Highway 40. Her vehicle is stopped perpendicular to traffic to monitor oncoming westbound traffic. At 11:23 p.m., she observes a grey BMW driving in the left lane at a very high speed followed by a white Crown Victoria. She estimates the speed of the BMW at more than 160 km/h and captures it, while it is 250 metres away, at 195 km/h.

She then picks up the Crown Victoria at 159 km/h. [ 2 ] Both vehicles brake when they reach the police vehicle. The officer stops the BMW and issues a statement of offence to the driver, Mr. Daniel, for driving at 195 km/h in a 100 km/h zone. [ 3 ] Mr. Daniel is in the centre lane from the moment he gets on the highway. At a certain point, he moves into the left lane to pass a vehicle travelling ahead of him at a slower speed ("centre vehicle"). He then notices a vehicle ("left vehicle") coming up behind him at a very high rate of speed. The left vehicle begins to follow him very closely. Mr.

Daniel is frightened and accelerates to pass the centre vehicle to give way to the left vehicle. [ 4 ] The left vehicle has been following him for approximately 500 metres when he sees a police vehicle stopped 250 to 300 metres away. He immediately observes his speed indicator that reads 150 km/h, takes his foot off the gas pedal, looks to see if the left vehicle is slowing down and pulls into the centre lane. [ 5 ] Mr. Daniel therefore challenges the officer's measurement.

He believes that his testimony is credible and sufficiently reliable to show that he is not travelling at 195 km/h, but at 150 km/h. [ 6 ] The prosecutor indicates instead that Mr.

Daniel's testimony contains implausibility and contradictions adding that nothing in the evidence leaves a reasonable doubt as to the offence. [ 7 ] When a cinemometer is properly checked and used by a qualified operator, the speed recorded by the device is prima facie evidence of its accuracy unless the defendant presents evidence to the contrary that tends to show that the measurement taken is not accurate [1] . [ 8 ] Such evidence must be reliable and sufficiently accurate.

It is recognized, however, that a defendant is not required to check his speedometer at the exact same moment that the officer captures his speed [2] . [ 9 ] When faced with conflicting versions, the evaluation of the evidence must respect the teachings of R. c. W.(D.) [3] . Thus, if the Court believes Mr. Daniel, it must acquit him. The same is true if his testimony or the whole evidence leaves a reasonable doubt [4] .

MATTER IN DISPUTE [ 10 ] The Court must therefore answer the following question: 1. Is Mr. Daniel travelling at 195 km/h? ANALYSIS [ 11 ] Mr. Daniel does not present a defence of necessity. Nevertheless, the Court points out that such a defence would be doomed to failure. [ 12 ] In fact, this defence is subject to the presence of three criterias: the presence of an imminent and obvious danger, the absence of a reasonable and legal alternative to breaking the law, and proportionality between the harm inflicted and the harm avoided. [5] . [ 13 ] Mr. Daniel's narrative does not meet those criterias. 1. Is Mr.

Daniel travelling at 195 km/h? For the following reasons, the Court answers this question in the affirmative. Does the Court believe Mr. Daniel? [ 14 ] In order to answer this question, the Court must analyze the credibility of Mr. Daniel and the reliability of his testimony. [ 15 ] Credibility refers to a person's willingness to tell the story truthfully, honestly, and accurately. Reliability refers to one's ability to use one's memory and to relate the facts with sufficient detail and accuracy [6] . [ 16 ] After analysis, the Court concludes that it does not believe Mr.

Daniel because his testimony contains adjustments, contradictions and improbabilities that affect his credibility and the reliability of his narrative. [ 17 ] For example, the sequence from the moment Mr. Daniel sees the police officer varies according to the time of his testimony. Thus, the Court is left with imprecision of the order in which Mr. Daniel looks in his rearview mirror, releases the gas pedal, looks at his speed and changes lanes. [ 18 ] It is curious that Mr.

Daniel claims to be travelling at 150 km/h and not to have completed passing the centre vehicle when he sees the police vehicle, especially since he indicates that the left vehicle has been following him long enough for him to be afraid. [ 19 ] Finally, Mr. Daniel indicates that he is speeding because of the left vehicle. However, when he says that he did not know how fast he was going until he saw the police officer, he indicates that his speed should not be that different because he did not break. This last statement makes it irreconcilable for Mr.

Daniel to be driving at 150 km/h because of his fear of the proximity of the left vehicle. Is the evidence leaves a reasonable doubt? [ 20 ] Reasonable doubt must logically follow from the evidence or lack of evidence. [7] . [ 21 ] The evidence offered by Mr. Daniel, when weighed against all the evidence, does not raise a reasonable doubt in the mind of the Court. [ 22 ] Moreover, Mr. Daniel confirms this fact to some extent. He began his testimony by indicating that he was experiencing marital problems that day and was feeling a lot of pressure from his work.

When the prosecutor asked him if he accelerated every time a vehicle followed him closely, he replied in the negative and added that he was under a lot of pressure that day and that he only paid attention to his speed when he saw the police officer. Does the evidence establish the offence beyond a reasonable doubt? [ 23 ] The Offence Report shows that the officer is a qualified operator, that she checks her laser speedometer before and after use, that she first estimates the speed of Mr. Daniel's vehicle and then detects it at 195 km/h at 250 metres. [ 24 ] The officer's report is detailed and accurate.

The officer testified before the Court in a credible manner and did not attempt to add information. [ 25 ] It is therefore demonstrated beyond a reasonable doubt that Mr. Daniel was travelling at 195 km/h. CONCLUSION [ 26 ] The Court finds that Mr. Daniel's testimony is not credible or reliable. [ 27 ] There is nothing in the evidence that leaves a reasonable doubt as to the action taken by the officer. [ 28 ] The evidence demonstrates, beyond a reasonable doubt, the offence. FOR THESE REASONS, THE COURT:

[ 29 ] DECLARES Arsany Magdy An Daniel guilty of driving at 195 km/h in a 100 km/h zone. [ 30 ] IMPOSES a fine of $1170.00 with costs and contribution. [24] GRANTS a period of 9 months to pay this amount. __________________________________ Honourable Geneviève Claude Parayre Presiding Justice of the Peace Me Marie-Ève Tremblay Director of penal and criminal prosecution Prosecutor for the prosecution Me Michael Zatilny Ticket911.ca Inc. Prosecutor for the defendant Hearing date: November 14, 2022