2023 QCCQ 8872, 2023 QCCQ 8872

Director of Criminal and Penal Prosecutions c. Walia 2023 QCCQ 8872 COUR OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF KAMOURASKA LOCALITY OF RIVIÈRE-DU-LOUP « Criminal and Penal Division » N° : 250-61-061435-221 DATE : October 3 rd , 2023 ______________________________________________________________________ PRESIDING : HONOURABLE ANNE-MARIE SINCENNES, P.J.P. ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor c.

BHAVNEET SINGH WALIA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The defendant is accused of driving at a speed of 133 km/h in a zone where the speed limit is 100 km/h. [ 2 ] On October 11, 2021, the defendant and his parents were on their way to Halifax.

While the defendant’s vehicle in on cruise control at a speed between 100 and 115 km/h, he was stopped on Highway 85 for driving at 133 km/h. [ 3 ] The defendant explains that he knows he is speeding, but that the cruise control prevents him from driving faster than 115 km/h.

He therefore cannot have driven at 133 km/h. [ 4 ] The defendant also explains that his father is diabetic and asked him to find a place to relieve his bladder. [ 5 ] Still according to the defendant's testimony, apart from the delivery of the documents requested by the police officer, there was no specific exchange between the defendant and the police officer. According to the defendant, the interception lasted for some time. ISSUES IN DISPUTE [ 6 ] Does the defendant present any evidence to counter the prima facie evidence of excessive speed? [ 7 ] Can the defense of necessity invoked be upheld?

ANALYSIS [ 8 ] In Baie-Comeau (Ville de) vs D'Astous [1] , the Court of Appeal teaches us that in matters of excessive speed observed using a speedometer device, the demonstration that the operator is qualified, that his device was tested before and after its use and that the test demonstrates that the instrument is precise, establishes a prima facie proof, subject, of course, to the reasonable doubt that the accused may raise. [ 9 ] In the present case, all of these criteria are met.

There is therefore prima facie proof of the speed at which the defendant's vehicle is traveling, 133 km/h. [ 10 ] Does the defendant present evidence to raise doubt as to the speed recorded by the speedometer? [ 11 ] In Granger vs Montreal (Ville de) [2] , the Superior Court recalls the principles applying to a case where the speed is established by a speedometer: 1) The standard of proof necessary to rebut the presumption set out in D'Astous is reasonable doubt; 2) The presumption constitutes only prima facie evidence; 3) The defendant has no burden of persuasion;

4) Evidence which tends to demonstrate that the speed measured is not that which existed at the time of the offense is likely to raise a reasonable doubt as to the guilt of the defendant. [ 12 ] The Superior Court adds that the defendant's testimony may be based on checking his odometer at the time of the offense, but that the use of cruise control is not, in itself, sufficient proof, in the absence of defendant's testimony that he checked his speed on his odometer at the time of the commission of the offense. [ 13 ] The defendant at no time mentions having checked his speed on the odometer of his vehicle.

He raises no doubt as to the speed captured by the speedometer. [ 14 ] Can the defense of necessity invoked be upheld? [ 15 ] The Perka [3] decision of the Supreme Court teaches us that the essential criterion for this defense is the involuntary nature of the act reproached. It will be described as involuntary if it was unavoidable, that is, if there was no reasonable possibility of adopting another legal course of action.

The defense only applies to a situation of imminent danger and the harm caused by the act committed must be less than that which is sought to be avoided. [ 16 ] In the Polcaro [4] decision, the Superior Court accepted the principle that the possibility of soiling oneself could constitute a danger within the meaning of the Perka decision. But like any other danger raised for the application of this defense, it must be imminent. [ 17 ] The testimonies of the defendant and his father reveal that the latter has suffered from diabetes for three years.

However, they do not establish a link between this illness and a particular bladder problem that prevents him from refraining from urinating. [ 18 ] At the time of the interception by the police officer, the defendant makes no particular request of the latter, even if the intervention lasts “some time” [ 19 ] The elements raised in the testimony heard do not allow to conclude that the danger is imminent. Thus, the defense of necessity must be rejected.

FOR THESE REASONS, THE COURT : [ 20 ] FINDS the defendant guilty of the offence; [ 21 ] CONDEMNS the defendant to pay a fine of 135$ and costs; [ 22 ] GRANTS the defendant a delay of three months for the payment of both fine and costs. __________________________________ ANNE-MARIE SINCENNES, PRESIDING JUSTICE OF THE PEACE M e Pierre-Luc Larouche For the prosecutor M e Darwin Jackson For the defense Date of hearing : January 26, 2023