R. v. Isik, 2014 ONCJ 161

ONTARIO COURT OF JUSTICE COURT FILE No.: 4862999 00 0807372B 4862999 00 0807373B Citation: R. v. Isik, 2014 ONCJ 161 BETWEEN: HER MAJESTY THE QUEEN — AND — KENAN ISIK Before Justice of the Peace V. Bubrin Heard on December 10, 2013 Reasons for Judgment released on March 26, 2014 I. Verrelli ................................................................................................. Municipal Prosecutor V. Manoukian ................................................................................... Agent for the Defendant K.

Isik ................................................................................................................The Defendant JUSTICE OF THE PEACE V. BUBRIN: [1] The trial into the charges against Mr. Kenan Isik took place on December 10, 2013 and the matters return today, March 26, 2014for the Court’s judgment. [2] Before I get into the discussion of the merits of the case proper and the test of proof beyond a reasonable doubt that rests on theprosecution, let me acknowledge the able arguments of Ms. Verrelli and Mr. Manoukian, and Mr. Manoukian’s references to legalprecedents to bolster his position.

After the completion of the hearing, I received copies of the decisions referred to by Mr. Manoukianin submissions, specifically R. v. Henderson (ON CA), [1999] O.J. No. 1216, from the Ontario Court of Appeal,which refers to the rule in Browne v. Dunn and in turn stands for the proposition that if counsel (in this case the Crown) is going tochallenge the credibility of a witness, the witness must be given the chance to address the contradictory evidence in cross-examinationwhile he is still in the witness box; and R. v. 2934752 Canada Inc. (c.o.b. Highland Transport) [1997] O.J.

No. 6308, in which theprinciple known as the “best evidence rule” is discussed, serving as a general guide for choosing the appropriate method of proof, in thiscase binding on the Crown (as per R. v. Shayesteh (ON CA), [1996] O.J. No. 3934 (Ont. C.A.)). [3] I have read and considered the relevance of the case-law provided and the applicability of these legal precedents to the evidencebefore me.

I am also mindful that the Court ought not to stray from the well-established and widely accepted intent of the ProvincialOffences Act, namely to ensure a speedy, efficient and convenient method of dealing with Provincial offences, with Highway Traffic Actcases exemplifying the point, both in terms of the volume and the nature of many, if not most such cases. As succinctly stated in R. v.Tait [2001] O.J.

No. 2948 substance needs to prevail over form, purpose over procedure and merit over technicalities. “We’re not hereto trap somebody or to deal with the matter on a procedural technicality that amounts as to what other courts have indicated, amounts tonothing more than pettifoggery… The purpose of the [PO] act is ‘Let’s forget about the nonsense and get down to the meat of the caseand have a decision made.’ That’s what the Provincial Offences Act legislation is all about.” as stated by Justice Montgomery in R. v.Golden, 1985, O.J. No.2006. Most recently D. Harris reiterated this point in R. v.

Petrecca (September 30), 2013 O.J. No 6160, byreminding that the underlying philosophy of the POA is to ensure that technical objections do not impede the determination of a case onits merits.

[ 4 ] What we have in Mr. Isik’s case is a simple speeding charge and a document charge pertaining to the validation of the permit for the vehicle Mr. Isik was driving on April 3, 2013. I am satisfied that the trial process, while it may not have been perfect, was correct and fair. Issues respecting the accuracy of

interpretation were raised, and these too were probed on occasion. The Court has no reason to believe that Mr. Isik did not understand the questions, and similarly has no reason to believe that the answers he provided through the interpreter were inaccurate because of any inadequacy of

interpretation. l will now proceed to examine the charges on their merit. [ 5 ] With respect to the charge of speeding 89 km/h in a posted 60 km/h zone, the Crown’s evidence, through the testimony of PC Susana Musso Duarte of the Toronto Police, was that on April 3, 2013 the officer was set up on Steeles Ave. W., west of Fermore Dr., in the City of Toronto, to monitor eastbound traffic. Steeles Ave. W. was described as a three-lane highway in each east and west direction and the Officer testified that it was a posted 60km/h with clearly visible, unobstructed and undamaged signs.

The officer stated that she checked the signs that morning on her way to her setup location. [ 6 ] To enforce the speed limit in the setup location, Office Duarte said that she was using a laser speed measuring device identified as an UltraLyte Laser LRB No.T319067. The device was described as a mechanism capable of measuring the speed of moving vehicles. [ 7 ] Officer Duarte described herself as a qualified and certified operator of the above-mentioned motor vehicle speed measuring device.

She testified that according to her notes she tested the device prior to leaving the station at 7:55 a.m. and again at the end of the shift, around 2:00 p.m. However, no notation of the exact time of the second test was made in her notes. Nonetheless, she testified that she tested the device at the end of her shift as per her usual practice, “which is regular for me to do,” to put it in her own words. She found the device in proper working order according to the manufacturer’s specifications on both occasions. [ 8 ] At approximately 10:37 a.m. Ms.

Duarte testified that she observed two motor vehicles travelling eastbound toward her location. She said that she had a clear view of approximately 250 meters of the eastbound lanes of the highway west of her location. [ 9 ] One of the two vehicles, the one in lane one, which she described as the lane closest to the centre of the highway, which I understand to be the passing lane, appeared to be speeding, accelerating and overtaking the other vehicle in the middle lane, as it was approaching her location.

At this point she activated her laser unit pointing it at the front of the targeted motor vehicle, and registered a speed of 89 km/h at a distance of 204.2 meters. [ 10 ] The officer testified that she pulled out of her setup location in her marked police cruiser and followed the vehicle she observed speeding. Upon stopping the vehicle she made a demand of the driver to surrender his driver’s license, insurance card and ownership or vehicle permit. [ 11 ] The diver produced a valid photo-bearing Ontario Drivers License with the name Kenan Isik, with a Windsor, Ontario address.

The driver was identified as the defendant. In addition to the license, the defendant provided the officer with a valid insurance card and surrendered an unsigned and not validated motor vehicle permit/ownership. The officer testified that the defendant was not the owner of the motor vehicle he was driving, as the ownership was in another person’s name.

The vehicle in question was a 2008 Honda Odyssey, white in colour, bearing an Ontario marker BLPN 034. [ 12 ] Officer Duarte issued the defendant two certificates of offence: speeding 89 km/h in a 60 km/h zone; and drive motor vehicle no currently validated permit. She testified that she cautioned the defendant respecting her observation that the motor vehicle permit had not been signed. [ 13 ] Based on the evidence summarized thus far, the Court concludes that most of the essential elements of a speeding charge have been substantiated beyond a reasonable doubt.

I say most, but not all, because three contested areas pertaining to the essential elements of a speeding charge need to be looked at more specifically: 1. Does the absence of any notation of time when the officer tested the UltraLyte laser speed-measuring device upon the completion of her shift on April 3, 2012 lead to a reasonable doubt that the instrument was in good working order? 2.

Does the defendant’s own testimony regarding the speedometer on the 2008 Honda Odyssey motor vehicle he was operating that day cast a reasonable doubt regarding the accuracy of the reading obtained by the Officer on her UltraLyte laser device? and 3. Given that there were two vehicles on the road in the vicinity of each other just before the officer stopped the defendant, both white in colour according to the testimony of the defendant, does this raise a reasonable doubt that the Officer stopped the offending vehicle? [ 14 ] My reasoning regarding the first point is as follows.

The Officer’s notes, which contain the time when she tested the laser speed measuring device at the beginning of her shift, but do not contain any such time notation for the after-the-shift test, are not themselves evidence. The notes are an aid used by the officer to refresh her memory with respect to her investigation and circumstances that lead to the charges before the Court. The point that there is only one time notation instead of two to correspond to the number of tests allegedly conducted by the Officer is not in and of itself conclusive.

The evidence before the Court adduced through the Officer’s viva voice testimony is that the Officer tested the device according to the manufacturer’s specifications at 7:55 a.m. and again at the end of her shift, around 2:00 p.m. as per her usual practice. The Officer testified that this is what she regularly does: “I always do it. I just didn’t put it in my notes.” It was the Officer’s testimony that the device was in good working order on both tests. [ 15 ] There is a very useful

summary of case law on the above point in R. (Durham Regional Municipality) v. Galluzzo, 2011 ONCJ 367 , that “usual practice” in testing a laser device is sufficient proof that that such testing was conducted. Granted that what we have in the case before the Court here today is a notation of the time on the one end (the beginning of the Officer’s shift), and testimony regarding the Officer’s usual practice at the other end (i.e. the end of the Officer’s shift), without the support of an entry in the Officer’s notes.

If “usual practice” is acceptable proof that a test has been conducted even in the absence of notes to that effect, I see no valid reason not to apply it to a situation consisting of a combination of circumstances: evidence of a test supported by a time recorded in the Officer’s notes, and a test substantiated by the Officer’s usual practice. [ 16 ] The Court is satisfied, therefore, that an absence in the Officer’s notes of a second notation of the time of the test of the device does not raise a reasonable doubt that the speed measuring laser instrument was in good working order both at the beginning and at the end of the Officer’s shift and therefore also at 10:37 a.m. on April 3, 2013.

[ 17 ] In his defense the defendant testified that while he was driving along Steeles Ave. W., he kept checking his speedometer and that he was not going over 60 km/h. In support of this claim he said that his speedometer was accurate because he has the vehicle checked regularly by a mechanic. However, in describing in more detail what vehicle maintenance work is regularly done on the vehicle, he mentioned oil changes, tyre pressure and break checks.

The closest he came to addressing anything related to the speedometer was that in the course of the vehicle’s maintenance the mileage on the odometer is also recorded. [ 18 ] In the Court’s opinion, the defendant’s evidence regarding the maintenance of his vehicle and his checking of his vehicle’s speedometer while driving along Steeles Ave. W. on April 3, 2012, do not raise a reasonable doubt that the laser speed-measuring device operated by Officer Duarte was in proper working order and that it accurately recorded the speed at which the defendant was travelling.

The Court rejects the reliability of the defendant’s own conclusion about the accuracy of his speedometer, given the absence of any concrete evidence regarding its maintenance and professional testing. While the defendant may have genuinely believed that his speedometer was in good working order, this is based on a subjective impression rather than on verifiable objective proof in support of what he believed.

In the Court’s opinion the defendant’s impressions and beliefs are insufficient evidence that would be capable of raising a reasonable doubt regarding the accuracy of the reading obtained by the Officer on her UltraLyte laser speed measuring device. [ 19 ] This brings me to the third and last point challenging the results of Officer Duarte’s investigation. Did the Officer stop the offending vehicle or perhaps she stopped the wrong vehicle, since, according to the defendant, in the middle lane to his right there was another white vehicle at that time?

The position of the two vehicles is an important detail, because like the defendant, the Officer testified that the vehicle that came to her attention at some 250 m from her location was in the passing lane, or lane one. Neither the defendant nor the Officer testified that the other vehicle travelled in the passing lane (lane one) at any time during which the Officer started observing the roadway at some 250 m from her setup location. My understanding of the evidence is that throughout this brief period of time, the officer’s focus was on the motor vehicle in lane one.

That was the vehicle that she said she aimed the laser speed- measuring device and obtained a reading of 89 km/h from a distance of 204.2 metes. Having obtained that speed reading on her device, the Officer pursued the vehicle without losing sight of it, and stopped it to conduct her investigation.

The all important, key evidence that she never lost sight of that vehicle from the moment she observed it at 250 m from her location to the moment she stopped it, was not, in the Court’s opinion rebutted or seriously challenged. [ 20 ] Based on these considerations the Court finds that all the essential elements of the speeding charge against Mr. Isik, speeding 89 km/h in a 60 km/z zone, have been proven beyond a reasonable doubt. [ 21 ] With respect to the second charge, drive motor vehicle with no currently validated permit, the Court is not persuaded by Mr.

Manoukian’s arguments and the applicability of the best evidence rule. In the Court’s view, the ownership of the vehicle being driven by Mr. Isik on the day in question was not at all an issue. The Officer acknowledged that the defendant was not the registered owner of the 2008 Honda Odyssey he was operating. In fact the defendant himself testified the vehicle was registered in his father’s name. What the Officer zeroed in on, having cautioned the defendant that the permit was not signed, was the validation of the permit.

I understood that the Officer looked for, but did not observe or find, a dated sticker in the appropriate box on the permit document. The Officer testified: “It means that – when you renew your plates there is two stickers, one goes on the plate of the motor vehicle. The other one goes on the back of the actual ownership of the motor. That sticker was missing. And that’s the sticker that actually validates your permit. So the plate would’ve had a May 2014 sticker on it.

That sticker was not placed on the back of the ownership.” [ 22 ] In the Court’s view, it is reasonable to assume that even if the Ministry issued a permit for the Honda Odyssey for the appropriate year, it was not affixed to the place where the Officer thought and expected it to be affixed. With that dated sticker missing, the Officer laid the charge.

Even had the Officer obtained a certified copy of the ownership from the Ministry of Transportation confirming that someone other than the defendant was the Honda Odyssey’s owner, and that a permit valid on April 2013 had been issued, the sticker of validation was still missing on the document produced by the defendant. In the Officer’s view the validation sticker’s absence warranted the charge. Whether it warrants a conviction is a separate issue, which I will address below. [ 23 ] S. 7 (1) (

a) of the Highway Traffic Act reads as follows: “No person shall drive a motor vehicle on a highway unless displayed on the vehicle, in the prescribed manner, (

a) there exists a currently validated permit for the vehicle; (

b) there are displayed in the vehicle, in the prescribed manner, (

i) number plates issued in accordance with the regulations showing the number of the permit issued for the vehicle … (

c) evidence of the current validation of the permit is affixed, in the prescribed manner, to (i)one of the number plates mentioned in sub clause (b) (

i) displayed on the vehicle … [ 24 ] This

section of the HTA needs to be read together with Ontario Regulation 628 (Vehicle Permits), s. 6(2): “Evidence of validation for a permit shall be affixed to a number plate for the vehicle in accordance with this Regulation, and the portion of the evidence of validation not intended for the number plate may be affixed in the appropriate space provided on the permit for the vehicle. [O. Reg. 119/12 s. s. 1]” [ 25 ] There is evidence before this Court that there was a validation permit affixed to the number plate of the vehicle the defendant was operating.

According to s. 6(2) of the above-noted Regulation, that is mandatory. With respect to affixing the validation not intended for the plate on the permit, appears to be discretionary. (A quick review of this

section of the Ontario Regulation shows this to be the case from 2012. Prior to 2012 the

section of the Regulation addressing the validation of the permit, then s. 6, read: A permit for a motor vehicle shall be validated by means of evidence of validation provided by the Ministry and affixed in the appropriate space provided on the permit.) [ 26 ] The above leads the Court to conclude that the charge against Mr. Isik “Drive motor vehicle no validated permit” does not succeed. According to s. 6(2) of the Regulation governing permits makes the affixing of the currently permit on the plate mandatory (“shall”) but discretionary on the ownership (“may”).

This in effect renders the charge “Drive motor vehicle without a validated permit invalid and consequently the Court must dismiss the charge. [ 27 ] In

summary, the Court concludes that the prosecution has proved the speeding charge beyond a reasonable doubt and finds Mr. Isik guilty of speeding 89 km/h in a 60 km/h zone, contrary to s. 128 of the Highway Traffic Act . A conviction will be registered. Unless the parties wish to make submissions on penalty, the in-court fine for speeding 29 km over the limit is $130.50

[ 28 ] For the reasons stated above, the second charge against the defendant, drive motor vehicle with no validated permit, is dismissed. Signed: “Justice of the Peace V. Bubrin”