Her Majesty the Queen - v. –, 2014 SKPC 085

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 085 Date: April 17, 2014 Ticket No: 7892110 Location: Pierceland Between: Her Majesty the Queen - and – Eddie Allan Shortman Appearing: Gregory Piper For the Crown Eddie Allan Shortman On His Own Behalf Judgment M. F. Martinez , J [ 1 ] Eddie Allan Shortman is charged with the offence of driving faster than 60 kilometres per hour when passing highway workers or occupied highway equipment within a work zone. The offence is alleged to have occurred on September 5, 2013, on Highway 55 near Peerless, Saskatchewan. [ 2 ] Subsection 203(1) of The Traffic Safety Act governs the offence: Speed limits when passing highway workers 203

(1) No person shall drive a vehicle on a highway at a speed greater than 60 kilometres per hour when passing:

(

a) a highway worker or flag person; (

b) any highway equipment occupied by a highway worker, whose presence on the highway is marked in the manner determined in the regulations made by the board; or (

c) any highway equipment on a highway that has its ministry issued warning lights in operation, whether it is in motion or not. [ 3 ] Eddie Allan Shortman is not charged as the driver of the vehicle but as its registered owner.

Section 273 of The Traffic Safety Act makes the registered owner liable for the driver’s misconduct when the vehicle is driven by anyone who has the owner’s actual or implied consent to do so. [ 4 ] Recent legislative amendments allow the Crown to prosecute a contravention of subsection 203(1) of the Act without calling any witnesses ( The Traffic Safety Act , S.S. 2004, c. T-18.1,

section 259.1 and The Traffic Safety (Speed Monitoring) Regulations , c.

T- 18.1 Reg 10, sections 4 and 5). [ 5 ] Consequently, the Crown’s evidence consisted of the following documents: 1. a photograph of the offending vehicle taken by a speed monitoring camera showing the date and time the photograph was taken and the speed of the vehicle when the photograph was taken, which in this case was 88 kms/hr, 2. the affidavit of Bradley George Christensen, the person who tested, deployed, and operated the speed monitoring device, 3. an SGI Motor Vehicle Division certified search result confirming that, on the date of the alleged offence, Eddie Allan Shortman was the registered owner of a 2011 Ford Escape XLT bearing Saskatchewan license plate number 271 HSZ, and 4. affidavits of service confirming service of the

Summary Offence Notice, the photograph, Mr. Christensen’s affidavit, and the SGI Motor Vehicle Division search result. [ 6 ] The Act allows the accused to ask for an order requiring Mr. Christensen to attend for the purpose of cross-examination, but Mr. Shortman did not do so. [ 7 ] The accused was the only witness for the defence. [ 8 ] He testified that he does not know whether he, or anyone with his consent, was driving the vehicle depicted in the photograph taken by the speed monitoring camera.

He said that he cannot be sure that the vehicle in the Crown’s photograph was his vehicle and that if it is not plainly obvious that it is his vehicle, he should not be convicted. Even under cross-examination, he did not agree that the vehicle in the photograph is his vehicle. [ 9 ] The Crown submits that the offence under subsection 203(1) of The Traffice Safety Act is a strict liability offence and that its documentary evidence proves every element of the offence. [ 10 ] According to his affidavit, Mr. Christensen photographed the vehicle in question at 4:35 p.m. on September 5, 2013.

When I viewed the photograph, it appears that the light conditions were very poor at time the photograph was taken. [ 11 ] The photograph is dark and the image of the vehicle is somewhat blurry. In addition, the back of the vehicle and its license plate are covered in mud and dust. The vehicle clearly is an SUV but I cannot identify the make or model. The first part of the license

plate number is 271 but the last three letters are not clearly discernible. Further, the name of the province on the license plate is completely covered by mud. [ 12 ] In order for the Crown to rely on a photograph of a vehicle as evidence, the image of the vehicle must, at the very least, be of sufficient quality that the owner can confirm that the vehicle in the photograph is the same make, model, and colour as their vehicle. More importantly, the license plate number must be clear visible so that there can be no question about whose vehicle it is.

I find that the photograph entered by the Crown as evidence in this case does not meet these criteria. For this reason, the Crown cannot rely on the SGI Motor Vehicle Division search to prove that Mr. Shortman is the registered owner of the offending vehicle and I find him not guilty. ____________________________ M.F. Martinez, J