R v. SAWAF, 2019 QCCQ 7541

Director of Criminal and Penal Prosecutions c. Sawaf 2019 QCCQ 7541 USE OF GPS - CONTRARY EVIDENCE COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal and Penal Division No: 500-61-479417-181 DATE: December 4, 2019 BEFORE MADAM JOHANNE WHITE JUSTICE OF THE PEACE AND JUDGE THE DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS PROSECUTOR v. SAWAF, ROULA DEFENDANT JUDGMENT [ 1 ] Mrs. Sawaf is accused of driving her car at a speed of 132km/h in an area where the speed limit is 50km/h. [ 2 ] She denies this offence, and argues that she never drove over 82km/h in that area.

JW0192 QUESTIONS AT ISSUES 1. Does the use of a GPS constitute contrary evidence raising a reasonable doubt? 2. Does the testimony of the defendant regarding her speed, the confusion between her and another car on the road by the police officer raise a reasonable doubt? 3. Did the prosecution proved this case beyond a reasonable doubt? THE DEFENDANT’S POSITION [ 3 ] That particular Sunday, Mrs. Sawaf is driving her sons to their swimming lessons. Normally, the swimming lessons are in a hotel next to her house, but since there was construction there, it was changed to another hotel. [ 4 ] Mrs.

Sawaf is not familiar with this other hotel, the Crown Plaza Airport. She takes Highway 40, heading eastbound, and since she did not know exactly how to get to the hotel, she uses her GPS, which lead her to Highway 13 South, and then onto the Highway 520 ramp. [ 5 ] There is very little traffic on that Sunday afternoon. On Highway 40, she is driving at a speed of 100km/h, “because that’s the maximum speed” and merging into Highway 13 southbound, she maintains that speed. She looked down at her GPS, since it was indicating to exit to her right, and noticed she had accelerated a bit, to 108 km/h.

It is worth noting that this particular speed is first introduced in a question by her lawyer. [ 6 ] Mrs. Sawaf explains that one of her son had a high fever of 40 o and was swelling up all night. She did not know if she should take him to the pool, but did not want to cancel at the last minute, because they charge her. When she was on Highway 13, she made a telephone call to the swimming instructor to cancel the lesson because her son had just thrown up. She started to get nervous. Her other son was asking her to stop the car because his brother was throwing up.

She couldn’t stop and that is when she noticed she was driving at 108 km/h. [ 7 ] She then remarked a yellow sign indicating to slow down to 35 km/h because of a ramp. She slows down as much as she could, to 47 km/h, took a sharp curve, and stopped at the stop sign, before merging onto the service road, in the right lane. [ 8 ] At the stop sign, she sees a car identical to hers on the service road “passing fairly quickly”.

[9] She then sees that the left lane is open and free, and she moves to the left, “because there was a small red car”, more specifically,“a very small Hatchback Fiat”, with “four doors”, driven by a male, in front of her. [10] She knows the speed limit is 50km/h on this service road. Her son throws up again, and his brother is telling her “Mommy, hurryup, hurry up”, get there fast because he is throwing up again”. At this point, Mrs. Sawaf is afraid that her son is gagging, so she got verynervous. [11] Still in the left lane, she passed a taxi, and saw the police officer in her rear-mirror.

She took a sharp right because the taxi, a beigeToyota Camry, wasn’t letting her pass and she wanted to let the police officer pass. Since the police patrol car was not passing, shemoves back into the left lane. In cross-examination, Mrs. Sawaf specifies that the taxi driver was a male, and a female passenger wassitting in the back. [12] She continued, wondering why the police officer was not passing, and looking for a place to stop and clean her son. Analysing thefastest and best way to do that, she receives a telephone call from her aunt.

She tells her aunt that her son is throwing non-stop and stillhas a fever. They decided that she would bring her son at her aunt’s house so her aunt could examine him. She pass three different hotelson the road. However, since the GPS is giving directions to the Crown Plaza, and considering the fact that she is not familiar with thearea, she continues to drive to this hotel. [13] At that point, she is nervous, and she admits that her speed is over 50 km/h: “But I was going…at that point, I was doing 82,because it said on my GPS”. That’s the moment where her son is telling her to go faster.

She tells him “we’re almost there. I just needone minute. Please calm down, sit down”. [14] She sees the police officer behind her car, and thinks it’s not for her, but for the other Atlas she saw passing by when she was atthe stop sign. [15] When the police officer stops her, Mrs. Sawaf tells her that she has four kids, but brought only two for their swimming lessons. Shealso mentioned she is late for the swimming lessons. According to the defendant, the police officer replies “No. You don’t go 132.That’s not an excuse. Next time, you don’t go faster, even if you’re late.

A swimming lesson is not worth it”. [16] The police officer suspended the defendant’s driver licence for seven (7) days, at which point, Mrs. Sawaf started to cry,explaining that her husband was out of town, and that she needs to drive her children to school. The police officer then ripped the seven-day’ suspension document. The defendant’s

interpretation of this gesture is that the police officer knew that she was mistaken. THE LAW [17] When the radarist's competence, proper use of the laser and good functioning of the device is established, the speed indicated bythe same device is prima facie evidence of the speed of the vehicle, as decided in D’Astous[1]. [18] To rebut this, the defendant may present contrary evidence in order to raise a reasonable doubt.

The defense has no burden ofpersuasion and thus no obligation to show that the speed measured and indicated by the officer is, in fact, incorrect. [19] The contrary evidence may arise from the testimony of the defendant. For example, consulting the speedometer at the time ofthe offence may be considered as contrary evidence. However, the testimony must be precise in order to be relevant in law and to beconsidered valid and admissible evidence to the contrary. A simple estimate is insufficient, as discussed in Granger c.

Ville deMontréal.[2] ANALYSIS [20] The Defendant and the police officer do not share the same version of the events that occurred on Highway 520. [21] When confronted with two opposite versions, the Court must not decide whether to believe the defendant’s evidence or theprosecutor’s evidence. Instead, it must rely on the rule established by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [22] When assessing the credibility of a defendant, the Court must, however, take into account the evidence as a whole, asestablished by the Supreme Court of Canada in R. v. L.(D.O.), (SCC), [1993] 4 S.C.R. 419: The trial judge applied the proper test for weighing the evidence.

Whether an account given by an accused might reasonably be true isnot the proper test of whether the Crown’s evidence should be rejected. It is simply one factor in assessing the overall impact of theevidence as a whole. The only question for the trier of fact at the end of the trial is whether or not, on the whole of the evidence, theCrown has proved its case beyond a reasonable doubt. If it has, the accused must be convicted. If there is a reasonable doubt, the accusedmust be acquitted. [23] Does the Court believe Mrs. Sawaf’s testimony?

Or, is the Court left with a reasonable doubt, considering the evidence as awhole? 1. THE USE OF A GPS

[ 24 ] Mrs. Sawaf never clearly mentioned the reading on her speedometer in her testimony. She always referred to her GPS when she specified the speed at which she was driving. [ 25 ] The Global Positioning System (GPS) is first and foremost a geolocation system. Persons using such a system can determine their current location and how to get where they wish to go. [ 26 ] In P.G.Q v.

Robitaille, the Court of Appeal says the following about the use as evidence of commonly used objects: [3] [ translation ] If it were necessary in every speeding case to prove that the odometer was in good working order, we would also have to adduce expert evidence regarding the accuracy of a watch every time we had to prove the time of an event and to call upon experts to prove that a measuring tape or a ruler was in perfect condition every time we wanted to measure the distance in feet or inches from one object to another, etc. [ 27 ] In the examples given by the Court of Appeal, a watch is, in fact, designed to show the time, a ruler, to measure distance, and a speedometer, to measure the speed of a vehicle.

The primary function of a GPS, however, is not to establish the speed of a vehicle. [ 28 ] The Court therefore believes that the Court of Appeal’s comments regarding everyday objects cannot be applied to the GPS since, unlike the examples given by the Court, its primary function is not to measure speed. [ 29 ] In a case similar to this one, it was argued that the speed displayed on a GPS was contrary evidence raising a reasonable doubt, the Superior Court came to the following conclusion [4] : [ translation ] [16] Now, the trial judge, noting that the appellant had no expert to prove the reliability of his Garmin GPS unit, granted an adjournment to allow him to find one. [17] However, when the inquiry resumed, the Court refused to recognize the mechanical engineer as an expert witness, considering his lack of expertise with the Garmin GPS unit and, during the appeal hearing, the appellant went so far as to criticize the trial judge for not allowing him to find another expert. 18] Therefore, failing to accept the fact that the appellant’s two speed-measuring instruments were themselves evidence to the contrary, the trial judge rightly rejected that defence. [ 30 ] Furthermore, a parallel could also be made with the Court of Appeal’s decision in Thibault [5] , where it was decided that the use of the cruise control could not be considered contrary evidence if no verifications of the speedometer were made when the offence was committed. [ 31 ] Since Mrs.

Sawaf always referred to her GPS when she specified the speed at which she was driving, it cannot be considered as contrary evidence, as decided by higher courts. [ 32 ] The reliability of the defendant’s GPS, as a speed measurement device, along with its proper functioning, were not entered in evidence. Under these circumstances, we can hardly conclude that a mere GPS speed reading constitutes evidence to the contrary capable of raising a reasonable doubt. 2. The testimony of the defendant regarding her speed and the confusion between her car and another car on the road by the police officer [ 33 ] Mrs.

Sawaf never noticed the presence of the radarist that day on the road before seeing the patrol car behind her vehicle. Therefore, her sense of observation was not as precise as she claims. If the situation was indeed as described by the defendant, the Court simply cannot believe that while one of her son was throwing up, the other one standing up (since she told him to sit down) and panicking, telling her to go faster, she could notice in her surroundings the color of cars, and the number and gender of their passengers, while answering a telephone call from her aunt.

This, without even knowing that she would be stopped for speeding a few minutes later. [ 34 ] Furthermore, if the situation was as described by the defendant, why was the first thing she told the police officer, was that “I was late for the swimming lessons”? Mrs. Sawaf reported that to this explanation, the police officer replied that going at 132 km/h for swimming lessons, even when you’re late, is not worth it. [ 35 ] As for the presence of a vehicle similar to her own, if there was such a car on the road, again, with everything going on in Mrs.

Sawaf’s car, the Court does not believe that the defendant could notice the specific brand and model of other cars on the road. Taking into account the evidence as a whole, the Court does not believe the version of the defendant and cannot conclude that it raises a reasonable doubt. 3. Did the prosecution prove this case beyond a reasonable doubt? [ 36 ] Officer Lussier’s testimony contained all the essential elements required by D’Astous.

The police officer added details in her report such as her observations of the taxi in the right lane, the sketch representing the two children in the car, and the explanation given by the defendant that she was late for the swimming lessons, which enhanced the credibility of the police officer’s testimony.

[ 37 ] Officer Lussier remembers the children in the car. She does not remember any insignificant details, such as the color of the taxi, because it is not an essential detail. The fact that she did not write on her report that she ripped off the seven-days ‘suspension document is not relevant to proof of the commission of the offence. It seems that she used her discretionary power to give a chance to the defendant by letting her use her car, notwithstanding the speeding ticket. [ 38 ] Her statement that she never lost sight of the speeding car was not contradicted by the defendant’s testimony.

The offence occurred during daytime, on a Sunday afternoon, where there was very little traffic. Furthermore, the defendant’s testimony corroborates the version of the police officer as for the lane in which she drove, the presence of the taxi, and the fact that she was over the speed limit. The prosecution proved its case beyond any reasonable doubt. FOR THESE REASONS, THE COURT: F INDS THE DEFENDANT guilty of the offence held against her; CONDEMS THE DEFENDANT to pay the minimal fine of Nine Hundred and Ninety Dollars (990.00$); SETS THE REPRESENTATIONS , according to

section 224 of the Code of Penal Procedure, regarding the costs or the delay to pay the fine on December 12, 2019 at 14h00, room 3.102. If there are no representations to be made, parties or the lawyers do not have to be present. In that case, the Defendant will have to pay the costs, and the Court will grant a delay of THREE (3) months to pay. Johanne White Presiding Justice of the Peace and Judge Me Alexandra Bénard Director of Criminal and Penal Prosecutions Me David Shinder Ticket 911 Trial held on July 16, 2019