Her Majesty the Queen - v. -, 2013 SKPC 28

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 028 Date: February 14, 2013 Information: 24384292 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kendric John Friesen Appearing: Erin Schroh For the Crown Aaron A. Fox, Q.C. For the Accused JUDGMENT J. BENISON , J CHARGE [ 1 ] The accused is charged that he did on October 1, 2011, in the R.M. of Mount Pleasant, Saskatchewan operate a motor vehicle on a provincial highway to wit: Highway 18, five miles east of Carnduff, Saskatchewan in a manner that was dangerous to the public contrary to s. 249(2) of the Criminal Code . CROWN EVIDENCE

[ 2 ] Cst. Gramlich, an officer at the Carnduff Detachment, was driving a police cruiser east of Carnduff on Highway 18 at 10:15 a.m. on the date in question. The officer testified that he met a vehicle coming towards him which registered on his radar at 191 kilometres per hour. This particular stretch of the highway was straight and level. It was a clear bright day and the road was in good condition. [ 3 ] The only basis for the charge of dangerous driving is the alleged speed of the accused’s vehicle. There is no evidence of erratic driving and no evidence of actual danger to other drivers or road users.

The Crown is asking the Court to find that the accused’s action in driving at a very high speed in and of itself constituted dangerous driving. [ 4 ] The Crown called Cpl. Burnett, an expert in collision reconstruction. Cpl. Burnett provided an opinion that the stopping distance for a vehicle driven at the speed attributed to the accused’s vehicle would be far in excess of the stopping distance for a vehicle driven at 100 kilometres per hour, the speed limit on the highway in question. ANALYSIS [ 5 ] I must firstly deal with the issue of the alleged speed at which the accused was driving his vehicle.

The only evidence on this point is that of Cst. Gramlich. Apart from the speed recorded on his radar, Cst. Gramlich did not observe anything unusual about the operation of the accused’s vehicle. In a conversation between the officer and the accused, the accused told the officer that he had had some work done on the car and he wanted to see how the car would handle at high speed. [ 6 ] At issue in this case is whether the Crown has proved beyond a reasonable doubt that the accused’s vehicle was driving at 191 kilometres per hour as recorded on the police car radar.

Some serious concerns were raised in cross-examination. Firstly, Cst. Gramlich did not calibrate the radar before starting his shift; this was contrary to required and recommended procedure. However, after dealing with the accused, the officer calibrated the radar about two hours later. In addition, he did not testify as to when the radar had last been calibrated before his encounter with the accused. [ 7 ] Secondly, the documents filed as P-2 and P-3 for identification purposes purport to be tuning fork certificates relating to the tuning forks used by Cst. Gramlich in calibrating his radar.

Section 258 of The Traffic Safety Act provides that tuning fork certificates are admissible as proof, in the absence of evidence to the contrary, of the facts stated in the certificates and of the authority of the person who issued and signed the certificate, without proof of his or her appointment or signature. There are two problems with the tuning fork certificates. Firstly, they refer to an authorization issued under the provisions of the Province of Alberta and refer to section 163(1)(a)B of The Traffic Safety Act . Secondly, they indicate that they relate to a radar unit described as “Doppler KA-Band”. Cst.

Gramlich testified that the radar unit that he was using was a “Stalker Dual DSR” and that he did not know what a Doppler KA-Band was. A further concern with the tuning fork certificates is that Cst. Gramlich appeared to have no knowledge of how these certificates were obtained or where they came from. [ 8 ] One portion of Cst. Gramlich’s own testimony tends to cast further doubt on the accuracy of the radar reading. Cst. Gramlich testified that the accused’s vehicle was approximately one-quarter of a kilometre away when he activated the radar.

He further testified that the accused’s vehicle slowed down very quickly and was almost at a stop by the time the two vehicles met. When this situation was posed as a hypothetical to Cpl. Burnett, the expert witness, Cpl.

Burnett was of the opinion that, if the speed of the accused’s vehicle had been 191 kilometres per hour, the vehicle would not have been able to stop within this distance; alternatively, if it did stop within this distance, it could not have been doing 191 kilometres per hour. [ 9 ] Having considered all of the foregoing issues, it is my conclusion that the Crown has not proved beyond a reasonable doubt that the accused’s vehicle was travelling at 191 kilometres per hour at the material time. There is some evidence that the accused may have been speeding, but the speed of the vehicle is unknown.

Apart from this, there is no other evidence whatsoever of improper driving, either deliberate or inadvertent. [ 10 ] The objective test for dangerous driving requires proof of a marked departure from the standard of care that a reasonable

person would observe in all the circumstances: R. v. Beatty , 2008 SCC 5 at para. 36 . [ 11 ] In light of the Crown’s failure to prove the speed of the accused’s vehicle, there is no evidence on which I can find that the accused’s driving exhibited such a marked departure from the standard of care of a reasonable person. CONCLUSION [ 12 ] For the above reasons, I find the accused not guilty of the charge of dangerous driving. J. Benison, J