r v. AKLILU ANDEHAIMANOT ZERE, 2020 QCCQ 265

DPCP c. Zere 2020 QCCQ 265 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF TEMISCAMINGUE LOCALITY OF VILLE-MARIE “Criminal and Penal Division” No.: 610-61-018374-197 DATE: January 23, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE CLAUDE BOULIANNE, P.J.P. ______________________________________________________________________ D.P.C.P. Prosecutor v.

AKLILU ANDEHAIMANOT ZERE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The defendant is charged with speeding at 80 km/h in a 50 km/h zone on April 3, 2019, thereby contravening to

section 328 of the Highway Safety Code .

SUMMARY [ 2 ] On that day, a Sûrêté du Québec police officer was recording using a photo radar device on Polson Street at Notre-Dame-du- Nord, in a 50 km/h zone. He visually estimated its speed at 80 km/hr before using the Doppler device to confirm the speed at 80 km/hr. He then intercepted the vehicle and confirmed the defendant’s identity with his driver’s licence. He then served the driver with this statement of offence. [ 3 ] The defendant testified that he was driving back from Amos in a delivery truck and that he did not circulate at that speed.

This is the reason why he came from Kitchener to contest this contravention. ISSUES IN DISPUTE [ 4 ] Has the prosecution proved each essential element of the offence under

section 328 of the H.S.C. ? [ 5 ] Does the defendant’s version raise a reasonable doubt? PROSECUTION’S EVIDENCE [ 6 ] The prosecution’s evidence is essentially documentary. The statement of offence signed by Officer Aumond of the Sûreté du Québec is filed as exhibit P-1. [ 7 ] The Court notes the following information. [ 8 ] On April 3, 2019, around 11:21 a.m., the officer circulated on Polson Street in the town of Notre-Dame-du-Nord. The speed limit was 50 km/hr in that area.

Using a photo radar device, he recorded a Mercedes Truck driving towards him at 80 km/hr. [ 9 ] In the statement of offence, the Court noted that each requirement set out by the case law has been met. Tests were conducted at the start and at the end of the work shift, the officer is a qualified operator, the device was in good working order, and the speed was visually estimated, etc., all of which creates a presumption that the speed measured was accurate. DEFENDANT'S EVIDENCE [ 10 ] The defendant generally denied that he circulated at that speed.

He stated that he was returning to Ontario after a delivery in Amos. He drove a Mercedes Splinter vehicle, and he crossed a police car in the village of Notre-Dame-du-Nord. The police officer turned back and intercepted him. He explained that he didn’t circulate speedily at the time. [ 11 ] He never mentioned anything about his speed. ANALYSIS [ 12 ] The prosecution’s evidence establishes the presumption that the speed recorded by the photo radar device was accurate.

[ 13 ] The police officer using the speed detector device is qualified to do so. [ 14 ] Specific tests were made before and after the use of the device. [ 15 ] The tests confirmed that the speed detector device was in good state of functioning. [ 16 ] Once these three elements are proven, the prosecution benefits of a presumption to the effect that the speed detector device was in good state of functioning and thus that the speed measured with the device is accurate and reliable. [ 17 ] This presumption can be rebutted by the defendant.

The defendant must present a contrary evidence that only needs to raise a reasonable doubt. [ 18 ] The Superior Court in the decision of Granger [1] teaches us that a contrary evidence is the evidence that tends to demonstrate that your speed was not the one indicated by the speed detector device at that precise moment. [ 19 ] The Court already established that a simple estimation of the speed is insufficient. [ 20 ] In this file, the defendant didn’t mention an estimation of speed. He just denied having driven at the speed alleged by the police officer.

This explanation is not sufficient to be considered as a contrary evidence. FOR THESE REASONS, THE COURT: [ 21 ] FINDS the defendant guilty; [ 22 ] CONDEMNS the defendant to pay $105 plus costs and the contribution; [ 23 ] GRANTS the defendant a period of 90 days. __________________________________ CLAUDE BOULIANNE, P.J.P. Mtre Isabelle Godon DPCP Counsel for the prosecutor Date of hearing: October 10, 2019