R. v. W., 2021 QCCQ 12636

Director of Criminal and Penal Prosecutions c. Smith 2021 QCCQ 12636 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CITY OF MONTREAL Criminal and Penal Division No: 500-61-520414-203 DATE: December 6, 2021 ______________________________________________________________________ PRESIDING JUSTICE OF THE PEACE FANNIE TURCOT ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecution v.

Jearmain Alton Smith Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Smith is charged with driving his motor vehicle at a speed of 188 km/h in a 70 km/h zone. [1] [ 2 ] The defendant denies driving at that speed and argues that he was going with the flow of the traffic. He adds that there was a confusion between him and another car on the road. [ 3 ] One question is at issue in this case: 1.

Does the evidence brought forward by the defendant regarding his speed and the confusion by the police officer with another car on the road raise a reasonable doubt? [ 4 ] For the reasons more fully explained hereinafter, the Court rejects the defendant’s testimony because it does not believe it and because it fails to raise a reasonable doubt. [ 5 ] The prosecution’s evidence is clear and proves of all of the essential elements of the offence of driving at an excessive speed, beyond a reasonable doubt.

ANALYSIS [ 6 ] To prove an excessive speeding offence, the prosecution must establish each of the following essential elements beyond a reasonable doubt: the identity of the driver, the location of the offence, the speed recorded, and the speed limit. [ 7 ] When the speedometer operator’s proof of competence, the proper use of the laser, and the good functioning of the device are established, the speedometer reading is prima facie evidence of the speed of the vehicle – in this case 188 km/h – subject to any reasonable doubt the defendant may raise.

This prima facie evidence, as recognized in D’Astous , [2] is therefore applied in this case. [ 8 ] In rebuttal, the defendant may present contrary evidence in order to raise a reasonable doubt.

The defendant has no burden of persuasion, and evidence tending to show that the speed measured is not the speed at the time of the offence is likely to raise a reasonable doubt. 1 Does the evidence brought forward by the defendant regarding his speed and the confusion by the police officer with another car on the road raise a reasonable doubt? [ 9 ] The defendant and the police officer do not share the same version of events. [ 10 ] When confronted with two opposing versions, the Court must not decide whether to believe the defendant’s evidence or the prosecution’s evidence.

Instead, it must rely on the rule established by the Supreme Court of Canada in R. v. W.(D.) : [3] First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[ 11 ] When assessing the credibility of a defendant, however, the Court must take into account the evidence as a whole, as established by the Supreme Court of Canada in R. v. L.(D.O.) . [4] [ 12 ] As stated in Municipalité St-Guillaume c.

Ruel , [5] the defendant does not bear a burden of persuasion and does not have to prove his or her innocence; it is sufficient to raise a reasonable doubt. [ 13 ] Evidence tending to show that the measured speed is not accurate is evidence to the contrary that raises a reasonable doubt of the defendant's guilt. [ 14 ] It is recognized that such evidence may be introduced by the defendant’s testimony as long as it is relevant evidence in law.

The defendant's testimony may be based on a verification of his or her odometer at the time of the offence. [ 15 ] However, since reasonable doubt carries no burden, the evidence need not match perfectly with the time of the speedometer’s measurement. [ 16 ] Still, the defendant's evidence must be accurate in order to be relevant in law and to be considered valid and admissible evidence to the contrary. A mere estimate is insufficient. [ 17 ] Here, there is no evidence to the contrary.

There is no specific evidence presented by the defendant of the speed at which he was going at that moment or how it was established. An estimate is not sufficient to constitute evidence to the contrary, nor is his allegation that he was going with the flow of traffic. [ 18 ] What about the defence of confusion raised by the defendant? [ 19 ] The Court does not believe the defendant. His version is implausible and unreliable, and it changed throughout his testimony. [ 20 ] He testified that he was in no rush that night when returning home from his friend’s house. He was heading home.

He told the Court that, once he arrived, since it was a Saturday night, he prepared for church the next morning. He ironed his clothes. He told the Court that the next morning he went to church. [ 21 ] However, in cross-examination, he acknowledged that it was not the case, as churches were closed at the time.

On May 2, 2020, measures had been taken by the government to prevent the spread of COVID [6] . [ 22 ] There is more. [ 23 ] The defendant said that he tries to always make sure to respect the law. [ 24 ] This is in direct contradiction with his own admission that he knew he was in a 70 km/h zone but that he was going with the flow of the traffic at a speed around 30 to 40 km/h over the speed limit. [ 25 ] He also contradicted himself when he first said he knew it was a 70 km/h zone, but then changed his testimony to say that he was surprised it was a 70 km/h zone. [ 26 ] He does not know his speed.

He is surprised that it was a 70km/h zone, but at the same time, he tries to always make sure he obeys the law. That does not make sense. How can you tell the Court that you always try to respect the law if you do not know the speed limit and if you do not know your speed? [ 27 ] The testimony of Mr. Andrew Gentle does not help the defendant. [ 28 ] He said that he knew it was a 70 km/h zone, that he saw the police officer, and that the defendant was not speeding. At the same time, he said that he does not recall the speed.

He then said that they were going maybe at a speed of 89 km/h all the time, and then finally that the highest speed reached was maybe 90 km/h. This is a clear contradiction. He acknowledged that the defendant was speeding at least 20 km/h over the speed limit. [ 29 ] And this is also in contradiction with the defendant’s testimony. The defendant testified that he was going with the flow of traffic at around 100 to 110 km/h. [ 30 ] Mr. Gentle testified that the dark blue or black car going faster than anyone else passed them in the right lane.

At that moment, they were in the middle lane. [ 31 ] However, the defendant Mr. Smith testified that this very fast dark-coloured car passed them in the right lane, but he used his left arm. Then he changed his testimony to tell the Court that the car passed him in the left lane. [ 32 ] The two witnesses did not see the very fast dark-coloured car approaching in the same lane. [ 33 ] This contradiction goes to the heart of the defence of confusion raised by the defendant. [ 34 ] There is another contradiction between the two testimonies. Mr. Gentle told the Court that Mr.

Smith looked for his driver’s licence in the door of the car and on himself, but that it was in the back seat, not in Mr. Smith’s pocket. [ 35 ] However, Mr. Smith testified that there was a discussion with the police officer, and he asked him if he could take his licence from his pocket. While looking for his driver’s licence, he removed a bag containing leftover salt from his pocket. He explained that the police officer had a reaction at the sight of the bag. Then he pulled his licence from his pocket so that the police officer could take a picture of it.

[ 36 ] The defendant also relies on an explanation given by Mr. Gentle about how it would have been impossible for a car going at a speed of 188 km/h to have taken the exit situated 1 km further. He said that the car would have had to slalom between the other cars. [ 37 ] A similar mathematical impossibility was raised in Municipalité de Saint-Guillaume c . Ruel . [7] The Court in that case, citing the Supreme Court in R. c.

Cyr-Langlois , [8] decided that a theoretical possibility is insufficient to raise a reasonable doubt: Le doute raisonnable ne peut être un doute imaginaire ou frivole, même s’il peut se fonder sur l’absence de preuve. Ainsi, la position défendue par l’appelante ne peut s’appuyer sur une hypothèse qui n’est pas enracinée dans la preuve telle qu’évaluée et retenue par la juge d’instance. [ 38 ] The explanation given here by Mr. Gentle is based on hypothesis and has no factual basis. [ 39 ] For all of these reasons, the Court rejects the testimonies of the defendant and Mr.

Gentle because it does not believe them and because they do not raise a reasonable doubt, given all the contradictions and inconsistencies. [ 40 ] As for the evidence of the prosecution, the defendant argues that the testimonies of both police officers come from the report and are not reliable. [ 41 ] Recently, in Constantinescu c .

DPCP , [9] the Superior Court reiterated that it is normal at the time of the hearing for a police officer to have only a limited memory of the events concerned in a statement of offence: Poussée à la limite, la thèse soutenue par la défense pourrait envoyer le message suivant dans la communauté juridique: si vous voulez être acquitté, vous n’avez qu’à assigner les policiers, car leur constat sera automatiquement exclu du dossier, de sorte que si leur souvenir des heures de calibrage du cinémomètre utilisé lors de l’interception de votre client est peu précis, le doute raisonnable sera ainsi plus facile à prouver, puisque le témoignage des policiers ne pourra jamais être jugé fiable, par l’effet combiné de l’invraisemblance résultant d’un souvenir ultra précis sur de tels détails, au nombre de cas qui leur passent entre les mains et avec l’effet du temps sur la mémoire, entre l’interception et l’audition devant le tribunal. [ 42 ] The testimonies of both officers were precise, honest, and based on a statement of offence and abridged report filled out contemporaneously with the events. [ 43 ] The fact that they have no recollection of another statement of offence being issued to the defendant for his failure to have his insurance certificate in his possession does not affect the credibility of their testimonies regarding the speed ticket. [ 44 ] The defendant testified that the police officers believed him that he was insured and told him that he would not get a statement of offence for that.

However, months later, he received one for not having the proper documentation with him. [ 45 ] First of all, it must be noted that the statement of offence is not for a failure to be insured, so it is plausible that the police officers believed that he was. The statement of offence that he received later was for not having his certificate in his possession. [ 46 ] Second of all, the defendant did not question the police officers about the abridged report in support of the statement of offence concerning the insurance certificate.

The Court does not know whether this report contains a reference to the statement of offence of excessive speed. [ 47 ] The credibility of a witness or the evidence he or she provides cannot be attacked without asking the witness some questions about it. This is called the duty of fairness to the witness. [10] [ 48 ] The Court of Appeal recently reiterated the importance of the Browne v. Dunn principle, which is essentially designed to ensure a fair trial and minimize the risk of trial by ambush. [ 49 ] This principle, established in 1893 by the House of Lords in Browne v .

Dunn , states that a party who wishes to contradict or attack the credibility of a witness must give that witness an opportunity to give his or her side of the story. [11] [ 50 ] The testimonies given by both officers were clear. [ 51 ] The prosecution’s evidence is clear and meets all of the essential elements required. [ 52 ] Around 8:46 p.m., the two police officers saw the defendant’s vehicle going very fast. It was the only car. They were conducting a laser operation on Highway 20 eastbound.

He was clearly going faster than 160 km/h. [ 53 ] Before and after the operation, one of the officers performed verification tests of his device, determining that the device was functioning properly. He is a qualified operator. [ 54 ] He caught the defendant's vehicle at a speed of 188 km/h when it was at a distance of 84.3 meters from his position. The 70 km/h zone was clearly identified by a visible speed limit sign. [ 55 ] There was no traffic and it was easy to follow the defendant’s vehicle. The lights of the vehicle were shaped like parentheses and the colour of the vehicle was royal blue.

Before they intercepted the defendant, they were able to hear the sound of the engine at high revolution. [ 56 ] They then intercepted the vehicle and proceeded with the identification of the defendant by his driver’s licence. [ 57 ] They never lost sight of the vehicle.

[ 58 ] The defendant argues that the police officers refused to show him the speed recorded on the radar. However, this argument must fail because, as established in numerous judgments, [12] the operator of the device has no obligation to show the speed as recorded by the radar. FOR THESE REASONS, THE COURT: FINDS THE DEFENDANT guilty of the offence charged against him . __________________________________ FANNIE TURCOT Presiding Justice of the Peace Mtre François Russo For the Director of Criminal and Penal Prosecutions Mtre Bérube-Bouchard For the defendant Date of hearing: August 28, 2021