2023 QCCQ 539, 2023 QCCQ 539

Directeur des poursuites criminelles et pénales c. Bucovetsky 2023 QCCQ 539 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL CRIMINAL AND PENAL CHAMBER No: 500-61-527125-216 DATE: February 21, 2023 ______________________________________________________________________ BY THE HONOURABLE JACQUES ROUILLIER, JUGE DE PAIX MAGISTRAT ______________________________________________________________________ LE DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES Plaintiff v.

JEFFREY BUCOVETSKY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] The defendant is charged with having driven his motor vehicle at a speed of 160 km/h in a 100 km zone. [ 2 ] The evidence shows that a policeman was doing a laser operation on highway 15 near the Salaberry exit. [ 3 ] He notices a vehicle coming towards him at a great speed.

He estimates the speed at around 150 km/hr. [ 4 ] After the vehicle passed in front of him, he uses his laser gun to clock the speed of the vehicle. [ 5 ] He gets a reading of 160km/h at a distance of 160.2 meters. [ 6 ] He proceeds to intercept the vehicle 2.3 km away and identify the driver. He mentions that the vehicle is easy to identify because of the peculiar back lights. [ 7 ] He then gave the defendant the present ticket. [ 8 ] The defendant claims that he was going 110km/hr. That he was on cruise control since entering the highway.

That he regularly checked his speed during the trip. [ 9 ] He noticed the presence of the policeman when he was at about 1/4 of a kilometer away from him. He again checked his speed, and it was still at 110km/hr. [ 10 ] He was very surprised to see the police car behind him telling him to stop. [ 11 ] The interception happened 2.3 km away from where the policeman was stationed to do his laser operation. [ 12 ] He swears that he never went faster that 110km/hr.

ISSUE TO CONSIDER [ 13 ] Does the “preuve contraire” brought by the defendant raise a doubt in the mind of the Court has to the guilt of the accuse? [ 14 ] Did the prosecution prove all of the essential elements of the infraction beyond a reasonable doubt? ANALYSIS

[15] The prosecution has the burden to prove all essential elements of the infraction. [16] In the present case the prosecution produced a statement of offence in which the policeman states that he is a qualified operatorand that he had done all the necessary pre and post operation test to guarantee the functioning of the laser gun. [17] After observing the defendant’s vehicle and estimating his speed at around 150 km/h he used his laser gun and got a reading of160km/h when the defendant’s vehicle was 160.2 meters away from him. [18] One particularity in this case is that the policeman clocked the defendant’s car after he passed him and not in front of him. [19] As stated by judge Cournoyer in the case of DPCP v Ganger, (2011 QCCS 6561 once the prosecution has proven thatthe defendant is a qualified operator and that all the necessary test have proven that the laser gun was functioning, there is prima facièsevidence that the infraction of speeding has been committed. [20] The defendant has no burden of proof, if at the end of the trial, the Court after analyzing the whole of the evidence has areasonable doubt, the defendant will benefit from it and be acquitted. [21] In this case, all the defendant has to do his present contrary evidence that raises a doubt as to the speed he was going when thepoliceman clocked him. [22] The defendant did present evidence has to a different speed then the one obtained by the policeman. [23] After reviewing the whole of the evidence presented at the trial, the Court concludes that the explanation given by thedefendant cannot be reasonably believed, nor does the whole of the evidence raise any doubts as to the guilt of the defendant for thefollowing reasons: [24] The defendant did not take any notes after receiving the ticket from the policeman. [25] It is only a few hours before the trial that he met with his lawyer to print the documents deposited as exhibit D-1 thatcorroborate his testimony. [26] A delay of 29 months has elapsed since the issuing of the ticket which was given the defendant on September 14, 2020. [27] Considering the elapse time, it is very hard for the Court to come to the conclusion that the testimony of the defendant can bereliable, especially when he testifies has to the distance he was from the policeman when he last checked his speed. [28] The estimation of the distance by the defendant , even if it was to be believe is not at all close to where he was clocked by thepoliceman. [29] The defendant states he was roughly 1/4 km away from the policeman when he last checked his speed.

The policeman clockedhim 160m away from where he was doing the operation. [30] There is an approximate distance of 410 meters from where the defendant says he last checked his speed from where he wasclocked. [31] There was ample distance for the defendant to change his speed. [32] Furthermore, the explanation given to by the defendant as to his multiple verification of his speedometer while he is supposedlyon cruise control is illogical. Why would somebody check his speed on multiple occasions if he is using cruise control?

The mainpurpose of using such a device is to not have to worry about the speed you are travelling at. [33] Finally, the defendant was intercepted 2.3 km away from the position of the policeman. If he was going at 110km/h like statedin his testimony, the policeman would have intercepted him a lot faster. The only logical explanation to justify such a long pursuit is thatthe speed at which the defendant was travelling was a lot greater than the one he testified to, which corroborates the speed recorded bythe policeman.

DECISION [34] For all the reasons mentioned above the Court comes to the conclusion that the defendant’s “preuve contraire” is not reliable. [35] That the whole of his testimony is not reliable and lacks in credibility. [36] The Court his satisfied that the prosecution proved beyond a reasonable doubt each and every element of the infraction. FOR ALL THOSE REASONS, THE COURT: [37] DECLARES the defendant guilty of the charges laid against him. [38] CONDEMN the defendant to pay a fine of $630.00 plus cost. [39] DELAY 90 days. .

__________________________________ JACQUES ROUILLIER, juge de paix magistrat Me François Russo Directeur des poursuites criminelles et pénales Plaintiff’s attorney Me Germain Caponi Champagne Benamor avocats Defendant’s attorney Date of hearing: February 10, 2023