Her Majesty the Queen - v. -, 2015 SKPC 52

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 052 Date: April 10, 2015 Information: 24441723 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jason Benson Ungar Appearing: Barrie Stricker For the Crown Shane Wagner For the Accused JUDGMENT D. CHOW , J Ex Officio Introduction [ 1 ] The accused herein, Jason Benson Ungar, stands charged that he did, on or about the 31 st of July, 2011, at or near Yorkton, both exceed the lawfully posted speed limit, and drive without due care and attention, contrary to sections 199(1)(

b) and 213(1) of The Traffic Safety Act (the “ Act ”). [ 2 ] Prior to commencement of the trial, the accused served and filed a notice asserting violations of his constitutionally

enshrined rights as guaranteed by sections 7 and 8 of the Canadian Charter of Rights and Freedoms , and seeking exclusion of evidence and/or a stay of proceedings, pursuant to

section 24 of the Charter . After hearing argument on the issue, I concluded that it would be most appropriate to adjudicate the Charter application within the context of a blended voir dire and trial. Evidence [ 3 ] The first witness for the Crown was Shelley Ross, an eight year employee of Guardian Security in Yorkton. Ms. Ross testified that at the direction of the RCMP, she attended at the Super C Convenience and Gas Bar in Yorkton, on July 31, 2011, and at that time, extracted video footage from the store’s security system, and made a digital copy of the same.

This video copy was entered as Exhibit P1 on the voir dire . Ms. Ross explained that in her experience, it was not possible to delete or to modify any footage on that particular recording unit and that, once she had concluded copying the video footage to the disc, it could not be added to or modified. She further explained that the camera, although directed at the store’s gas pumps, also recorded activities at the corner of Gladstone Avenue and Smith Street. While she was unaware of any signs posted within the store itself, notifying patrons of the video surveillance, Ms.

Ross believed that such signs were posted on the pumps themselves. [ 4 ] Under cross-examination, Ms. Ross explained that, as these video cameras were of an older analogue style, the resolution was somewhat inferior when compared to newer hardware, and that cameras such as these may suffer from a lag or delay when recording, but she could not recall if there was any lag evident in the exhibit.

She could not say if the Super C cameras had ever been calibrated since they were first installed by Guardian Security in 2007, but agreed that the accuracy of the recording could be affected by a variety of factors, including a power outage or the presence of nearby railway equipment. Ms. Ross was aware of the potential for errors to occur when burning video, but she could not recall if any such error had been present in this instance.

She also conceded that she had not personally compared the date stamp on the surveillance system or ensured that it reflected the actual time. [ 5 ] The Crown’s next witness was Chad Salyn. Mr. Salyn testified that he is a resident of Alberta, but was in Yorkton on the date of the incident, and personally witnessed the same. According to his evidence, he was returning from Kamsack, and en route to purchase groceries at the local Superstore. As he approached the intersection, proceeding west on Smith Street, Mr.

Salyn noted a red truck, which he testified was speeding and revving its engine, to overtake him in the other lane. He estimated his own speed to be 50 kilometres per hour, and described how the engine of the red truck revved as it “blew by him” aggressively at approximately 20 to 30 kilometres faster than his own. [ 6 ] He then noted the truck’s brake lights come on before it swerved to one side. When he arrived at the scene, Mr. Salyn first observed what he thought was a dog, but subsequently realized it was a boy.

He also recalled seeing a lady holding a baby in her hands, and a man with sunglasses and tattoos, who was insisting that, “it was green, he came out of nowhere”. [ 7 ] He recalled that it was approximately 7:00 in the evening, a nice day, with blue sky, and clear weather and explained that based upon his 18 years of driving experience, in his opinion, the red truck was clearly exceeding the speed limit. [ 8 ] Under cross-examination, Mr. Salyn testified to having taken

part in professional driving classes in the past and acknowledged that he normally slows down for the railway crossing located near the scene. He also acknowledged that when he provided his statement to investigators the day after the incident, he had suggested that he was probably driving at 40 or 50 kilometres per hour and conceded that he may well have been travelling at 40 kilometres an hour as previously suggested.

He also agreed that, when he arrived at the intersection, the light was green and that he did not personally see the boy riding a bike before the collision. [ 9 ] The next witness for the Crown was Justin Ryu, the owner of the Super C Gas Station and Convenience Store since May of 2011. Mr. Ryu explained that the surveillance equipment in question, which was used to help prevent crime, was there when he purchased the store.

While he had no interest in or intention to record vehicles or individuals passing by, and while there is a sign posted to warn people of the surveillance, he did not believe that the sign could be read from the street. [ 10 ] According to the witness, he had no objection to providing investigators access to the store’s surveillance system, or to their making a copy of the footage, as he wanted to assist them in finding the truth and at no time did he request that they provide him with a search warrant. Mr.

Ryu also explained that he did not personally know how to copy the video, as he had just purchased the business, so

he instructed the RCMP to contact Guardian Security, who could arrange to make a copy. He did not look at the video, and could not recall if investigators had spoken with him about doing a re-enactment. [ 11 ] Under cross-examination, he reiterated that he did not know when the cameras were installed or how old they were, and that he did not check to confirm that the time print-out on the cameras was accurate or synchronized.

He also acknowledged that he had not, since acquiring the business, had the cameras or the system serviced or repaired, and agreed that the police had not advised him that he could call a lawyer or refuse to provide a copy of the video recordings. [ 12 ] The Crown’s next witness on the voir dire was Robert Dorush, a resident of Canora, Saskatchewan, and employee of a Yorkton car dealership. Mr.

Dorush testified that on the date in question he was proceeding on Smith Street when he too observed a red Ford truck pass him, just prior to the intersection of Gladstone Avenue and Smith Street, in the vicinity of a railroad crossing. The witness estimated his speed at the time to be approximately 50 kilometres per hour, and it was his evidence that this is the posted speed in that area. By contrast, he recalled the red truck passed him at what he described as an extremely high rate of speed, which he estimated to be 60 to 70 kilometres per hour. [ 13 ] Mr.

Dorush went on to explain that, although he did not see the actual collision, when he reached the intersection of Smith Street and Gladstone Avenue, travelling west, he noted a mangled bicycle, a shoe, and a body on the roadway. He recalled that the incident occurred around supper time, and described the lighting as bright, and the traffic light to be yellow, turning red. [ 14 ] Upon stopping his vehicle, Mr. Dorush ran to the scene where he found the boy bleeding profusely from the ears. The victim had a weak pulse that faded out and obvious injuries to his head and neck.

The witness explained that he attempted to secure the scene and asked people not to touch anything. He confirmed that someone had contacted 9-1-1. The first member of the RCMP to attend blocked traffic on Highway 16, and once additional officers arrived, he was advised that he could leave and that a statement would be obtained from him later. [ 15 ] The witness advised that he had some 20 years of driving experience, and that he is familiar with that stretch of roadway, having travelled it regularly.

He reiterated that the red truck would have been travelling at a bare minimum of 60 kilometres per hour, by his estimate. [ 16 ] Under cross-examination, he advised that he does not ordinarily slow for a controlled railway crossing such as the one in question, but does for uncontrolled crossings, although he could not specifically recall if he had slowed his vehicle on this particular occasion.

He also reiterated that when the red truck passed him on the left, he was travelling in the right-hand lane, and that he looked down at his speedometer to confirm his own speed was 50 kilometres per hour, but allowed, when confronted with a typewritten statement prepared on August 1, 2011, that he did not explicitly say anything about his own speed or about the speed of the red truck when it passed him, the day after the incident.

He also conceded that he could not recall what other traffic, if any, was in the area and reiterated that he did not personally see the accident, or the boy on the bicycle before the collision. He agreed with defence counsel that there is a stand of trees in the vicinity of the accident on Gladstone Avenue. [ 17 ] The Crown’s next witness was Kyle Dionne, who was a resident of Yorkton at the time. Mr. Dionne testified that he was travelling south that day and stopped for a red light at the intersection of Gladstone Avenue and Smith Street when he noted the red Ford truck travel through the intersection.

By his estimation, he was some 75 metres away when he then observed what he thought was a bike fall from the truck. He could not recall whether there were any other vehicles in the intersection at the time. [ 18 ] He then watched as the accused got out of the red truck and joined a group of people who were gathering around the boy. Mr. Dionne also attended at the scene and attempted to help until police and ambulance arrived. He and another woman checked the boy for a pulse. [ 19 ] He described the conditions at the time as bright, with the sun in the west sky, although he could not recall approximately how high.

He estimated the time to be approximately 4:00 p.m. and recalled the traffic light in his direction of travel was red. It was his evidence that he had been driving for some 10 years and had resided in Yorkton for close to 25, that the speed limit on that portion of the roadway was 50 kilometres per hour, and that the red truck was exceeding that speed as it proceeded through the intersection. He also recalled that approximately 100 metres after the intersection, the speed limit increases to 70 kilometres per hour.

[ 20 ] Under cross-examination, he confirmed that conditions were bright and sunny, and that he personally was headed in a southerly direction on Gladstone Avenue, with no vehicles in front of him to obscure his view. Nonetheless, as with the other witnesses, he did not see the boy on the bicycle enter the intersection.

He reiterated that the red truck was, in his opinion, exceeding the 50 kilometre an hour speed limit, but conceded that he had previously provided investigators with a statement, the day after the incident, and acknowledged at that time that he could not say whether the vehicle was travelling more than 50 kilometres per hour. [ 21 ] Next to testify for the Crown was Cst. Erin Dunphy of the RCMP. Cst. Dunphy has been stationed in Yorkton since 2011, and assisted with a series of test runs conducted by investigators on September 15.

These test runs, or re-enactments, began, according to her testimony, at 5:40 p.m. and took place over a period of approximately 30 minutes, during which time she operated a video camera from the back seat of a vehicle travelling down Smith Street towards Gladstone Avenue. [ 22 ] The video recordings which Cst. Dunphy made of these test runs were subsequently copied to a DVD, and entered by consent as Exhibit P2.

The member could not recall if the original recordings were digital in nature, as it was not her camera, nor did she personally look at the speedometer in the vehicle at any time during the nine tests which were performed at various speeds. It was her evidence that there was, however, a noticeable difference in the speeds, and in the noise created by the engine of the test vehicle. [ 23 ] Under cross-examination, she explained further that investigators had endeavoured to perform the tests at the same time of day as the incident itself, and that, as a result, they were driving into the sun.

She also noted that the intersection was shut down by investigators during the re-enactments. [ 24 ] The Court also heard evidence from Cst. Jillian Boutilier who was the second member to arrive at the scene, at approximately 7:20 p.m. on July 31, 2011. It was her evidence that the scene was hectic, and that she had been tasked to set up a perimeter and then subsequently to take photographs, once the victim had been removed, upon the instruction of the accident reconstructionist, Cst. Dowd. Among others, she took photographs of the red Ford 150 4-door truck, including damage to the same.

She noted that the front windshield had a mark and that there was hair embedded in the glass on the driver’s side, close to the bottom corner. [ 25 ] A booklet of photos was exhibited as Exhibit P3 in the proceedings, and Cst. Boutilier explained that, while she personally took photos 1 through 12, photos 13 to 20 were actually taken by Cst. Dowd. [ 26 ] The member noted that the casino, the Petrocan gas station, as well as the RCMP Detachment all have surveillance cameras installed, and she was unaware of any signage or other warning to passersby of the presence of such cameras at any of these locations.

She also observed that the RCMP have video cameras installed in their police vehicles, and that these cameras regularly record other drivers and pedestrians, again without any warning to those individuals. [ 27 ] Under cross-examination, the member acknowledged that, while she arrived at the scene at 7:20 p.m., she could not attest to when the complaint was received by dispatch, nor could she say precisely how the accident had occurred. [ 28 ] Her attention was drawn to photograph 5 in Exhibit P3, which appeared to show a traffic sign, located just west of the scene of the collision, indicating a maximum speed of 70 kilometres per hour.

She could not say if it is possible that that speed limit in one direction is 70 kilometres per hour and 50 kilometres per hour in the other; she agreed that in the photographs, the crosswalk appeared faded and barely visible. [ 29 ] Under re-direct examination by the Crown, Cst. Boutilier was referred again to photographs 4 and 5 and reiterated that the intersection shown therein is a 50 kilometre speed zone. [ 30 ] Another member of the local RCMP Detachment, Cst.

Mikituk, testified that when he arrived at the scene, he first checked on the injured boy, and then called an ambulance, before identifying the driver of the vehicle, with whom he spoke. The member testified that he was the first investigator on the scene, that the driver of the truck was identified to him by other individuals present and that when he approached, the accused acknowledged the same.

[ 31 ] According to the witness, when he arrived at approximately 7:15 p.m., it was still a clear, sunny day; although he could not recall specifically where the sun was in the sky, he did recall it being in front of him. He reviewed photographs contained in Exhibit P3 and testified that they accurately depict the scene in his recollection. [ 32 ] He testified that he subsequently returned to the scene on September 15, 2011 to take

part in the re-enactments previously referred to by other members. His role was to verify the speed of the test vehicle with a radar gun, and to that end, he testified that he is duly qualified to operate the same, and that prior to the testing, he confirmed that the radar unit was operating properly by testing it with tuning forks in accordance with accepted procedures.

According to the member, the radar unit in question is accurate to between one and two kilometres per hour. [ 33 ] He explained that the re-enactment commenced at approximately 7:40 p.m. and that various tests were conducted at speeds of between 40 kilometres per hour and 80 kilometres per hour, using five kilometre per hour increments. It was his evidence that when he compared the speeds provided by Cpl.

Lockyer, they varied by no more than two kilometres per hour from the speeds which he personally confirmed using the radar unit. [ 34 ] He also suggested, based upon his approximately 20 years of driving experience, that having reviewed the surveillance video recorded by the Super C Gas Station, it was his opinion that the accused’s vehicle was travelling in excess of the 50 kilometre per hour speed limit and that the speed at which the accused’s vehicle appeared to be travelling in the Super C video most closely approximated the re-created test conducted at 80 kilometres per hour. [ 35 ] Under cross-examination, Cst.

Mikituk acknowledged that there was no radar reading for the accused’s vehicle, that the surveillance video from the Super C was not smooth and that he possessed no particular expertise which would assist him in estimating speed by comparing the surveillance video to that of the re-enactment. Moreover, he conceded that, in so doing, he made various assumptions – assumptions which he could not verify, including the fact that the accused’s vehicle and the truck in the re-enactment were travelling in the same lane. [ 36 ] The Court also heard from Cst.

Aaron Gullacher, the RCMP member who initially attended at the Super C Gas Station to inquire about the presence of surveillance video. At the insistence of the owner, who was unfamiliar with the system, Cst. Gullacher contacted Shelley Ross at Guardian Security, who subsequently produced a copy of the video and provided it to him. From the copy he received from Ms.

Ross, the witness made another copy, which he then provided to the traffic analyst. [ 37 ] He also personally obtained several witness statements at the detachment, and participated in the test re-enactment by blocking traffic in the northbound lane of Gladstone Avenue between Broadway and Smith Streets.

He did not make any handwritten notes in the re-enactment, but believed it took place on September 15, 2011. [ 38 ] It was his evidence that there are several locations in the area that have video surveillance, including the casino, McDonald’s restaurant, the local banks, the mall, Wal-Mart, Canadian Tire and the Co-op Gas Station.

He could not recall seeing warning signs posted at any of these locations, nor did he believe that there would be anything to alert those in the vicinity that they might be recorded by a passing patrol car with the video camera engaged. [ 39 ] Under cross-examination, he conceded that, although he had attended at Guardian Security to retrieve the video which Ms. Ross had copied, he never personally compared it to the original.

He agreed that the roadway near the accident scene is not level and that there is a gradual rise leading up to the railroad crossing which subsequently falls off. [ 40 ] The Crown also tendered Sheldon Kozie, a resident of Yorkton, who did not personally observe the accident, but came upon it shortly thereafter. Mr. Kozie testified that he was returning from a weekend at the lake when his wife, who was a passenger in the vehicle, alerted him to a bicycle flying through the air. He did not personally see this, but did see the bicycle land and heard the impact.

[ 41 ] When he first saw the bicycle landing, he noted the accused’s vehicle pulling over to the right-hand side of the roadway. He described the initial impact he heard as being loud, but he could not recall whether he heard the sound of tires braking. By his account, he was the first person on the scene. He was, by his estimate, approximately one-eighth of a mile from the scene, travelling east in the vicinity of a high school located on his left-hand side. [ 42 ] Mr. Kozie testified that he came to the assistance of the boy and held him, and that he placed a call to 9-1-1 at 7:10 p.m.

After tending to the victim, he made his way over to the accused to ensure that he was alright. It was his recollection that the accused was in the company of his wife and child and he recalls the vehicle being a Ford truck which came to be parked west of the scene of the accident. He identified the vehicle as the one shown in photo 9 in Exhibit Book P3. As for the conditions at that time, he recalls the sun having a strong glare, and it was his evidence that he tends to slow down and be more attentive when westbound on Smith Street, because he has found it difficult to see. [ 43 ] Mr.

Kozie explained that he has in excess of 25 years of driving experience, and is acquainted with what it looks like for a vehicle to travel 50 kilometres per hour.

He is also familiar with that particular stretch of roadway, having travelled it regularly, and testified that there is a railroad crossing in the area, as well as a sign which advises that right-hand turns are prohibited. [ 44 ] It was also his evidence that the school zone is a 40 kilometre per hour zone, which subsequently increases to 70 kilometres per hour, and in his opinion, the accused’s vehicle was exceeding the speed limit, based upon the sound of the impact, as he did not actually see the accident occur. [ 45 ] Under cross-examination, he advised that he did not know how fast he was travelling, except to say that it was at the speed limit, and he could not recall any other vehicles in front of him at that time.

He also could not recall if he had his windows open at the time. [ 46 ] Again, under re-direct examination, the witness advised that he has observed between 12 and 15 accidents as a truck driver and/or heavy equipment operator. [ 47 ] The Crown’s next witness was Cpl. Lockyer, a member of the RCMP Collision Reconstruction Unit, who explained that, although she had no personal involvement in the initial investigation, she did participate in a subsequent re-enactment of the incident. [ 48 ] Cpl.

Lockyer explained further that, while there are a variety of different methods which investigators employ to calculate a vehicle’s speed in a collision, due to a variety of factors, including the absence of skid marks, and the fact that the victim struck the side of the vehicle as opposed to the front, these methods were of little or no assistance in this case. [ 49 ] She acknowledged that, while she did personally view the surveillance video obtained from the Super C Gas Bar, she did not compare it to the video of the subsequent accident re-enactment.

She also conceded that the vehicle which investigators used in that re- enactment and which belonged to her personally, was probably a bit shorter than the one operated by the accused on the date in question but she could not say for sure; she was aware that it was not the same make or model and that it had been safety inspected. Cpl.

Lockyer went on to explain that, when subsequently reconstructing the accident at different speeds, investigators took care to replicate the position the sun would have been situated in the sky on the evening of the actual incident - precisely 83 minutes before sunset. [ 50 ] She testified that as a member of the RCMP for 16 years, and having 23 years of experience operating a motor vehicle, she has developed an ability to estimate speeds, and in her opinion, having viewed the surveillance video from the gas bar, she thought the accused’s vehicle was travelling “a little fast”.

Her opinion, she explained was based primarily on two things: firstly, the accused’s vehicle appeared to be travelling faster than the surrounding traffic flow and secondly, the speed which the accused’s vehicle appeared to pass various stationary objects. While viewing the surveillance video from the Super C Gas Bar, she identified various other vehicles which were, in her opinion travelling at or below the speed limit.

Based upon these two observations, coupled with her knowledge of the intersection, which she testified had a speed limit of 50 kilometres per hour which subsequently increases to 70 kilometres per hour west of the accident scene, Cpl. Lockyer opined that the accused would have been travelling in the surveillance video, by her estimate, approximately 15 to 20 kilometres an hour in excess of the 50 kilometre per hour speed limit.

[ 51 ] She did qualify her opinion somewhat however, by acknowledging that the angle of the surveillance video made it difficult to provide an accurate estimation of the accused’s speed and further, by conceding that she had previously advised investigators it was not possible to determine the accused’s speed from the surveillance video alone. [ 52 ] Under cross-examination, the witness conceded that she has no formal training which would assist her in estimating the speed of a vehicle from a video recording and acknowledged further that it becomes increasingly difficult to provide an accurate estimate the further you are removed from the vehicle.

She also allowed that the camera angle in the Super C surveillance video is higher than she is used to, and she could not determine from observing the surveillance video itself whether the camera lens was distorted in some fashion. She also allowed that, when she initially viewed the surveillance video and arrived at her estimate of the accused’s speed, she did so using a reduced picture as opposed to a full computer screen.

She never personally inspected the accused’s truck, nor did she measure it, and although she suggested that it appeared to be standard, she could not advise as to what a standard truck measurement would be, nor could she say personally whether there were any skid or tire marks present at the scene. [ 53 ] She reiterated however, that the lawful speed limit at the accident scene is 50 kilometres per hour. [ 54 ] The Crown’s final witness was Cst.

Greg Dowd, a member of the RCMP Traffic Services Unit and accident reconstructionist, who testified that he personally took photos 13 through 20 contained in Exhibit Book P3, shortly after arriving on the scene at approximately 9:15 that evening. In addition, he prepared two measured diagrams of the accident scene, which were introduced by consent as Exhibits P9 and P10. [ 55 ] Cst.

Dowd explained that ordinarily when a pedestrian is struck by a vehicle, investigators are able to calculate speed by using the distance the body is thrown, but in this instance, that calculation was not possible as the boy struck the side of the accused’s vehicle. He was able to estimate however, based upon the time that it took for the victim to ride his bicycle from the curb to the area of impact, that the victim was travelling at an average of 27 kilometres per hour.

He also explained that, by using the timer on the Super C surveillance video to calculate the time that it took for the accused’s vehicle to travel from one post to another, and then comparing that to the time that it took the investigator’s vehicle to travel the same distance in the re-enactment tests, he estimated the accused’s vehicle to be travelling just under 70 kilometres per hour at the time of the collision. Cst.

Dowd conceded, however, that because the video is somewhat choppy, it was easier to make out significant differences in speed than smaller variances, and noted that he was unable to be sure if the vehicle in the re-enactment video was exceeding 50 kilometres per hour until it got closer to 70 kilometres per hour. [ 56 ] He also acknowledged under cross-examination that he was not being tendered as an expert qualified to give opinion evidence, and agreed that he has no experience calculating or estimating speed from a video.

He also agreed that he is familiar with the concept of image latency, and conceded that the surveillance footage is choppy, and as such, he would not be comfortable providing an estimate of speed on that basis alone.

He also acknowledged that he had not taken steps to measure the length of the accused’s vehicle or the vehicle used in the re-enactment and that the presence of tire marks at the scene would seem to indicate that the accused attempted to brake. [ 57 ] The witness did however, inspect the brakes on the victim’s bicycle and agreed that they were functioning properly, and that it appeared, when confronted with photograph 8 contained in Exhibit P3, there were no reflectors on the bicycle wheels.

He acknowledged that his calculations assume an average speed, but that this is difficult to calculate given the distance but agreed that, even if the accused were travelling at the posted speed limit of 50 kilometres per hour, his vehicle would not have been able to stop in the 15 metres necessary to avoid the collision.

He agreed that the elevation of Gladstone Avenue rises to the railroad crossing, and noted that the accused’s vehicle system did not record an event even though it was capable of doing so, likely because the victim struck the side of the truck as opposed to the front. [ 58 ] The Crown concluded its evidence on the voir dire . The defence elected to call no evidence in support of the application or on the trial proper.

Analysis [ 59 ] With respect to the admissibility of the impugned videotape evidence, the accused asserts firstly that the video surveillance in question was undertaken without any warning to the accused, and further, that it was provided to members of the RCMP, without a

warrant, contrary to ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. Those sections provide: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure. [60] Where the state action complained of involves a search and/or seizure, the authorities make it clear that the analytical tool ofchoice is s. 8 of the Charter.

In so much as s. 8 is itself an illustration of the s. 7 right, consideration of the latter adds little, if anything,to the constitutional equation, and if a search is found to be reasonable pursuant to s. 8, it will invariably comport with the principles offundamental justice as enshrined in s. 7. For those reasons, it has long been established that the analysis of an impugned search or seizurebegins and ends with s. 8 (see: Reference re B.C.

Motor Vehicle Act (1985), (SCC), 23 CCC (3d) 289 (SCC); R v S.F.(2000), (ON CA), 141 CCC (3d) 225 (Ont CA); R v Mills (1999), (SCC), 139 CCC (3d) 321 SCC). [61] Moreover, s. 8 of the Charter is only engaged in circumstances where it has been established that there has been a search orseizure; that is to say, where the evidence demonstrates that the state has in some way interfered with a citizen’s reasonably heldexpectation of privacy.

Having reviewed the evidence on the voir dire, I have concluded that the accused has failed to demonstrate, on abalance of probabilities, that the impugned video evidence was the product of state action, or that he enjoyed a reasonable expectation ofprivacy in these circumstances. [62] The video evidence in this case was compiled by a private citizen, not by any agent of the state, and as the Supreme Courtnoted in R v Edwards, (SCC), [1996] 1 SCR 128, whether or not a reasonable expectation of privacy exists is to bedetermined on the totality of the circumstances, including, inter alia, whether the applicant enjoys possession or control of the propertyor the place searched, or an ability to regulate access thereto, including the right to admit or exclude others from the place.

In addition,the Court is to consider whether there has been shown to exist a subjective expectation of privacy, and the objective reasonableness ofthat expectation. [63] In this particular instance, the property or place is a public roadway, and there is no evidence to suggest, nor would it bereasonable to conclude, that the accused enjoyed any ability whatsoever to regulate access to the same. Moreover, there is no evidence ofany subjective expectation on the part of the accused, and in any event, any such expectation, given the totality of the circumstances,would be objectively unreasonable.

The Supreme Court of Canada’s decision in R v Belnavis, (SCC), [1997] 3 SCR341 is illustrative. The Court in that case concluded that the applicant, though not the registered owner, had a reasonable, thoughdiminished, expectation of privacy in a motor vehicle which she was operating.

A passenger in the vehicle, however, the Courtconcluded, had no such expectation. [64] For the foregoing reasons, the accused’s application to exclude the impugned evidence on the basis of an alleged violation ofthe Canadian Charter of Rights and Freedoms is dismissed. [65] Defence counsel submits further, however, that the surveillance video should not be admitted into evidence, as the Crown hasfailed to properly authenticate the same. Having reviewed the authorities, including those provided by counsel, I must agree.

As Corey J.noted in R v Nikolovski, (SCC), [1996] 3 SCR 1197, the general trend has been to admit all relevant probative evidenceand allow the trier of fact to determine the weight, if any, which should be ascribed thereto. The Court goes on, however, at para. 28 ofits decision, to point out that such admissibility is premised upon it having been established that the videotape has not been altered orchanged and that it accurately depicts the scene.

In that particular case, the Crown produced a store clerk who was able to provideuncontroverted testimony to the effect that the videotape accurately represented the incident. [66] That is not the case here. Indeed, the owner of the Super C Gas Bar, Mr. Ryu, testified that he had only recently purchased thebusiness, that he was not well acquainted with the operation of the video system, and did not personally look at the video. He can provideno insight as to when the cameras were installed, how old they were, or when they had last been serviced or repaired.

He also conceded,under cross-examination, that he had no idea as to whether they were synchronized with the proper time. [67] Similarly, the Crown’s first witness, Ms. Ross, conceded that although she personally extracted the video footage from the

[ 67 ] Similarly, the Crown’s first witness, Ms. Ross, conceded that although she personally extracted the video footage from the security system and made a digital copy, she had not personally compared the copy to the original recording or verified the date stamp on the system. She also acknowledged that she could not say if the surveillance system had been calibrated or serviced since it was first installed in 2007, and conceded that the accuracy of the video could be affected by various factors, including the presence of the nearby railway.

Although it was her opinion that it was not possible on the particular system to delete or modify any footage, she did concede that she was aware of the potential for errors which might occur during the copying process; the fact that she could not recall any such errors occurring was largely undermined by her concession that she failed to compare the copy with the original footage. [ 68 ] The testimony of Cst.

Gullacher suffers from the same frailty in that he failed to compare the copy provided to him by Shelley Ross to the original video, or for that matter, to compare that copy to the one which he subsequently made for the traffic analyst. [ 69 ] In the circumstances, I am not satisfied that the Crown has established the authenticity of the video surveillance, and have concluded that this is fatal to its admissibility.

Even if I were in error in this respect, given the opportunity to review the video in the context of the voir dire , I would have concluded that its quality was so poor as to render its probative value extremely limited. Indeed, Ms. Ross’ concession that, as the surveillance equipment was older, and analogue, it may be prone to suffer from a lag or delay, was borne out in the course of the viewing. [ 70 ] Notwithstanding Cpl.

Lockyer’s evidence that, based upon her experience and training, she could determine from the surveillance video that the accused’s vehicle was travelling some 15 to 20 kilometres per hour in excess of the 50 kilometre speed limit, she acknowledged that she has no formal training in this regard, and conceded that it is more difficult to do the further you are removed from the vehicle itself.

She also acknowledged that the camera was placed at a higher angle than she is accustomed to, and that she had no personal knowledge as to whether the lens on the surveillance camera may have distorted the scene in some fashion. [ 71 ] Having viewed the video in the context of the voir dire , I would have concluded, had the same been admissible, that its quality was so poor as to render its probative value with respect to the speed of the accused’s vehicle virtually non-existent.

At best, it depicts in a markedly non-fluid fashion, a vehicle which appears to be the accused’s, travelling at a higher rate of speed than that of other vehicles in the vicinity. There is however, no credible evidence as to the speed of those other vehicles. [ 72 ] Turning then to the offences alleged, and the evidence admissible in the trial proper, the relevant sections of The Traffic Safety Act provide as follows: 199(1) Subject to the other provisions of this Act, no person shall drive a vehicle on a highway: ... (

b) at a speed greater than the maximum speed indicated by any signs that are erected on the highway in accordance with

section 200 or 201 or that are placed at the entrance to a park in accordance with

section 202. ... 213(1) No person shall drive a vehicle on a highway without due care and attention. [ 73 ] Certain facts, including the identity of the accused, and the date, time and location of the accident, are not in dispute. [ 74 ] As for evidence of the accused’s speed, and the speed limit at the scene, Mr. Salyn, who had some 18 years of driving experience, and had taken

part in professional driving classes, provided testimony that the accused’s vehicle “blew by him” in an aggressive fashion at what he described to be 20 to 30 kilometres greater than his own speed.

Although in examination-in-chief, he estimated his speed to be 50 kilometres per hour, he conceded, based on a previous statement from the day after the incident, that he may have been travelling as slow as 40 kilometres per hour at that point. [ 75 ] His testimony was consistent of that of another eyewitness, Robert Dorush, who testified that on the date in question, he was travelling at approximately 50 kilometres per hour, when the accused’s vehicle passed him at what he describes as an extremely high rate of speed. It was Mr.

Dorush’s evidence that the speed limit in this area is 50 kilometres per hour, and he estimated the accused to be

travelling at between 60 and 70 kilometres per hour. Mr. Dorush testified that he is familiar with that particular roadway, and that as aresident of Canora, and an employee of a car dealership in Yorkton, he travels it regularly.

He maintained that the accused was travellingat least 60 kilometres per hour when he passed, and when challenged under cross-examination, testified that he looked at his ownspeedometer, which read 50 kilometres per hour, although he acknowledged that he did not disclose this in his typewritten statementwhich he prepared on August 1, 2011. [76] Kyle Dionne, the Crown’s other eyewitness, testified that he, too, was familiar with this stretch of roadway as a resident ofYorkton at the time, that the speed limit is 50 kilometres per hour, and that it increases to 70 kilometres per hour, approximately 100metres past the intersection.

It was his evidence that he saw the accused’s vehicle travel through the intersection and that it wasexceeding 50 kilometres per hour, although he conceded under cross-examination that he had not divulged this to investigators on the dayafter the incident. [77] Again, this evidence as to the speed limit was consistent with the testimony of Cst.

Boutilier and indeed, in reviewingphotograph 4 in Exhibit P3, one can see that much further west of the scene of the accident, as represented by the victim’s shoeevidenced in the foreground, is a sign which suggests that the speed limit increases at that point to 70 kilometres per hour. [78] Although one of the other Crown’s eyewitnesses, Sheldon Kozie, testified that he felt the accused was travelling in excess ofthe speed limit, I note that his estimate was based on what he heard as opposed to what he actually saw, and to that extent, his evidenceas to the accused’s speed is of no value. [79] Finally, Cpl.

Lockyer also testified that the speed limit at the scene is 50 kilometres per hour, increasing to 70 kilometres perhour some distance west of the accident scene. [80] Based on the uncontroverted evidence, I am satisfied beyond a reasonable doubt that the Crown has established that the speedlimit at the scene of the accident was, in fact, 50 kilometres per hour. I am also satisfied that it has been demonstrated to the requisitecriminal standard that the accused was proceeding in excess of that speed limit.

It is not germane as to whether his speed was 60kilometres per hour or 70 kilometres per hour, as variously estimated by eyewitnesses, each of whom testified to considerable drivingexperience. [81] I pause at this juncture to state that I place no weight in the estimates provided by those investigators who purported to offeran opinion of the accused’s speed based upon a review of the surveillance video. For the reasons previously set forth herein, I haveconcluded that the same is inadmissible on the trial proper.

Moreover, having reviewed the video surveillance in the context of the voirdire, I am not at all persuaded of its probative value, or of the ability of Cpl. Lockyer, or any of the other witnesses for that matter, toestimate the speed of the accused’s vehicle from that video alone. [82] Similarly, I find little probative value in the re-enactment conducted subsequently by the RCMP in that the sole purpose ofthis re-enactment was to attempt to estimate the speed of the accused’s vehicle by comparing the video of the re-enactment to theoriginal surveillance.

Given the inadmissibility of the initial video, and for that matter, its poor quality and the number of admittedinconsistencies in the two, including the variation in the length of the vehicles and the camera angles employed, any estimate arrived atby purportedly comparing it with the subsequent re-enactment is suspect at best. [83] With respect to the allegation of driving without due care and attention, Wilkinson J. had occasion recently to consider andsummarize the law in R v Hunchak, 2014 SKQB 257, wherein, beginning at paragraph 43, she observes: [43] To establish the offence of driving without due care and attention, the Crown must prove beyond a reasonable doubt that thedefendant’s manner of driving, viewed objectively, is a departure from the standard a reasonable and prudent driver would have observedin all the circumstances.

The Crown must show a sufficient departure from the standard of a prudent and reasonable driver to make thedriving deserving of punishment, or a breach of duty to the public. These are the propositions of law established by the Ontario Court ofAppeal in the cases of R. v. Wilson (1970), (ON CA), [1971] 1 O.R. 349, 1 C.C.C. (2d) 466 (Ont. C.A.), and R. v.Beauchamp, supra, and followed in Saskatchewan in such cases as R. v. Dookhun, 2010 SKQB 100 , 354 Sask.R. 43; R. v.Turgeon (1958), (SK QB), 24 W.W.R. 540, 120 C.C.C. 248 (Sask. Dist. Ct.); R. v. Hauser, 2009 SKPC 3 ,330 Sask. R. 167; R. v.

Wylie, 2008 SKPC 69 , 69 M.V.R. (5th) 151; R. v. Lozinski, 2008 SKPC 6 , 62 M.V.R. (5th)

111; R. v. Laroche, 2007 SKPC 21 , 46 M.V.R. (5th) 28); and R. v. Tyndall, 2005 SKPC 38 , 18 M.V.R. (5th) 95. [44] “Due care” means the standard of care that is owed in the circumstances.

The relevant factors in terms of evaluating whether anindividual has committed the offence of careless driving include the condition of the vehicle; the speed of the vehicle and of thesurrounding traffic; the overall driving conditions; the location, nature and conditions of the roadway; the speed limit; the weather; thetime of day; the visibility and lighting conditions; the volume of traffic; the presence or absence of others using the roadway; theavailable options to the driver; the actions of the driver; and other relevant or intervening events. [45] The offence of driving without due care and attention is a strict liability offence, meaning that the proof of the act of careless andinattentive driving establishes the offence regardless of intent.

Due diligence is available as a defence, and it is open to the accused todemonstrate on a balance of probabilities that he or she has taken all reasonable care in the circumstances to avoid committing theoffence. See R. v. Kozun (1997), (SK QB), 154 Sask. R. 81, [1997] S.J. No. 98 (QL) (Q.B.). [46] Thus, the Crown need only prove that the driver committed the prohibited act, and unless the driver can show that such act wasdone without negligence, fault or lack of reasonable care, he or she will be convicted: R. v. McIver, (ON CA), [1965] 2O.R. 475, [1965] 4 C.C.C. 182 (Ont.

C.A.). [84] As previously set forth herein, I accept that the speed limit at the scene of the accident was 50 kilometres per hour, and thatthe accused was exceeding that speed limit by perhaps as little as 10 or as much as 20 kilometres per hour.

To the extent that there is anyevidence of the same, it would appear that traffic was light, although I note that the Crown produced no less than four other motoristswho were in the immediate vicinity and personally observed the accident. [85] The Court heard uncontroverted evidence that the photographs exhibited as Exhibit P3 accurately reflect the scene shortlyafter the incident and I note when looking at photos 1, 2, 3 and 5, that the sunset is clearly obstructing the view looking west, and this isconsistent with the evidence of virtually all the eyewitnesses.

I also accept the uncontroverted evidence that the weather conditions weredry and clear at the time, and note the presence of what has been described as a stand of trees to the left and a crosswalk in theforeground of some of the photographs. [86] I accept the evidence of Cst. Dowd that the victim’s bicycle did not appear to exhibit reflectors, and that in his opinion, even ifthe accused were travelling at the posted speed of 50 kilometres per hour, he would not have been able to stop within the 15 metresnecessary to avoid the collision.

I also accept his evidence that the victim’s bicycle was travelling quickly, perhaps as fast as 27kilometres per hour on average. [87] I also accept that the accused proceeded through the intersection on a green light, and accept further the evidence of Mr.Salyn, who testified that it appeared that the accused braked and swerved prior to the collision. Nonetheless, the evidence establishesthat he was exceeding the speed limit, in the immediate vicinity of an intersection, a rail crossing, a school, a crosswalk and a nearbystand of trees located adjacent to the roadway.

This was further compounded by the fact that the sunlight would have been directly in theaccused’s eyes as he proceeded west, thereby further obscuring his view. I am satisfied, when viewed objectively, that the Crown hasestablished beyond a reasonable doubt that the accused’s manner of driving, viewed objectively, constitutes a departure from the standarda reasonable and prudent driver would have observed in all the circumstances. [88] In the result, I find the accused, Jason Benson Ungar, guilty on both counts. D. Chow, J Ex Officio