R. v. Kaddourah, 2016 ONCJ 786

CITATION: R. v. Kaddourah , 2016 ONCJ 786 DATE: November 30, 2016 Provincial Offence #4028063B ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN vs OMAR KADDOURAH J U D G M E N T A N D S E N T E N C I N G BEFORE JUSTICE OF THE PEACE W. ROJEK On November 30, 2016, at GUELPH, Ontario

APPEARANCES : P. Cassata Provincial Prosecutor G. Eschweiler Agent for Omar Kaddourah ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Reasons for Judgment Page 1 Sentencing Page 6

Transcript Ordered: November 30, 2016 Transcript Completed: December 8, 2016 WEDNESDAY, NOVEMBER 30, 2016 R E A S O N S F O R J U D G M E N T ROJEK, J.P. (Orally): If you don’t mind, stand up, sir. The allegation can be summarized as follows, and some of the elements of this case are not disputed. So I will just summarize them.

It is not disputed that on the 24 th day of June, 2015, at around 7:02 p.m. in the City of Guelph, at Wellington Road West, just west of intersection with what’s commonly referred to as Hanlon Expressway, Officer Smith, a member of Guelph Police Services, had been parked around 715, municipal address, which is a small plaza on the side of the Wellington. He was equipped with Ultralyte laser System 20-20 for which he was properly qualified since 2010 and requalified properly 2014, so he was properly qualified to operate that device on the day in question.

Officer testified that he tested his device before and after the incident in question and described in cross-examination very specifically the test – one was the turn on device test when the test is going through self-examination of self-testing procedure. When absolutely satisfied with that result, then officer is pushing button which tests integrity and proper function and can follow screens, and the screens are populated and officer verifies that they were working properly.

Then there is scope alignment test which officer is directing the laser device using the scope and certain object and moves that beam of that laser device horizontally and vertically and listens to the sound, the audio emitted from the device and confirms that the aiming is proper. Officer also testified that he did the last test which was the fixed distance, zero velocity test, when the officer is measuring a certain distance and then checks that object and if he’s satisfied with the same distance reading on his device and speed which is zero, then

officer can find and satisfy himself that the laser device what he was using was working properly, and that was the case. Officer testified that at certain period of time, at 7:02 p.m., he observed a motor vehicle approaching his position in a west direction. Officer testified that he observed that motor vehicle passing the speed sign which was posted just west of intersection with Hanlon, that sign was advising the motorist of 60 kilometers per hour maximum speed. That was around three, 400 meters east of location of the officer.

Officer testified that from the distance of 163.8 meters obtained speed reading, after aiming his laser beam at that motor vehicle, at 81 kilometers per hour and never lost sight of that motor vehicle and established from the driver’s licence presented by the driver of that motor vehicle that it was the defendant before the court, Mr. Kaddourah. Mr. Kaddourah testified today that he was coming back from work, it was after a long shift when he was doing overtime.

He was initially travelling on Speedvale in the City of Guelph, then he turned left on Hanlon, then he turned right on Wellington going to Cambridge which would be the west direction. He is initially in the left lane, then he moves to the right lane after passing the sign advising him of speed of 60 kilometers per hour, and then he is pulled over by Officer who is stepping in front of his motor vehicle, and then receives the Provincial Offences Notice which brings him today before the court.

The defendant testified that he was checking right prior being pulled over by the officer, his speedometer, and he observed that the speed reading on his speedometer in his Toyota Camry 2010 motor vehicle with approximately 200,000 mileage, was reading 60 kilometers per hour. The defendant testified that he was familiar with that stretch of the road, that’s his commuting route to and from work - he is working in Guelph, lives in Cambridge, so five times a week he would go to and from work. First of all - credibility issue. I have one.

Evidence when the officer tells me it was 81 kilometers per hour, and I have another evidence which tells me 60 kilometers per hour. Both evidences are given in a proper way. One evidence is supported by a laser device which is scientifically and legally recognized device to accurately measure speed of moving motor vehicles. Officer Smith was properly trained to use it, tested it, find it in working order, proper working order.

On the other hand I have the defendant who says that, “I’m a licensed technician, I do work on my car, I have no reason to disbelieve readings of my speedometer, so I never did any work on it”. So on one hand I have the evidence presented to me by the way of observations which were confirmed by the laser device which is precise device, tested right on the same day before and after incident. On the other hand I have just evidence of, “I looked at my speedometer”. There was no evidence as to accuracy of that. So for that reason I will, after considering the defence, I will not accept that evidence.

I will accept Officer Smith’s evidence that the vehicle was travelling at 81 kilometers per hour at that moment. Interesting legal argument was about the spacing of the speed signs, and I agree with the argument put before me. As per

Section 2, subsection 1(

a) of the Regulation 200 under the Highway Traffic Act , it reads as follows: Subject to

Section 4, where the maximum rate of speed other than that prescribed by subsection 128(1) of the Act is prescribed for a highway in a local municipality or built-up area, speed limit signs shall be erected on a highway, in each direction of travel, no more than 600 meters apart where the speed limit prescribed is 60 kilometers per hour or less. There is no evidence that the speed signs along Wellington Road in the west direction were spaced out exactly at 600 meters. Officer Smith testified that the speed sign which he observed the defendant passing by was approximately 300, maybe 400 meters east of his direction. Now the proposition of

interpretation of this Rule in Regulation is that unless there is any evidence which would allow me to rule that there is finding of proper spacing of the speed signs that does not allow me to rule that it has been committed in posted speed zone. I can’t accept this part of the argument. I agree that this Regulation regulates where the signs should be, but if I were to put

interpretation, is that once there is a stretch of highway and there is one single sign of speed zone, let’s say 60 kilometers per hour, and there is nothing else, that zone ends at 600 meters unless it’s reconfirmed by another posted sign so the motorist would exactly know where the speed zone ends, otherwise simply

no speed sign would be enforceable because the drivers would be passing first speed sign and waiting for another speed sign to confirm that it’s the actual posted zone. So for 600 meters, and according to Officer Smith, this event had taken place well within 600 meters of distance from the speed sign zone which is undisputed was properly erected. That was definitely, without any doubt, properly posted 60 kilometers per hour zone.

And I don’t think I need to go into the argument that if there was no signs that would revert to the 50 kilometers per hour zone because that is basically logic outcome of what I said before. So for this reason I am satisfied that prosecution has proven its case beyond reasonable doubt. Conviction will be registered. There is finding of guilt. S E N T E N C I N G MR. CASSATA: Thank you, Your Worship, the fine is now $94.50 for 21 over. MR. ESCHWEILER: The defendant wants to pay that amount right now, Your Worship.

THE COURT: Very well, thank you, the fine is imposed in the amount of $94.50 subject to an automatically added victim surcharge imposed. There will be 15 days to pay. And thank you both, that was very interesting. MR.

ESCHWEILER: Thank you, Your Worship. ************ Form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act I, Jacoba Near (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of R. vs Omar Kaddourah in the Ontario Court of Justice (Name of Case) (Name of Court) held at 59 Carden Street, Guelph (Court Address) taken from Recording Digital Recording , which has been certified in Form 1. December 7 , 2016 (Date) (Signature of Authorized Person(s))