Her Majesty the Queen - v. –, 2014 SKPC 083

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 083 Date: April 17, 2014 Ticket No: 7892463 Location: Pierceland Between: Her Majesty the Queen - and – Jozef Baars Appearing: Gregory Piper For the Crown Jozef Baars On His Own Behalf Judgment M. F. Martinez , J [ 1 ] Jozef Baars 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 15, 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 ] Jozef Baars 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 77 kms/hr, 2. the affidavit of William J.

Anderson, the person who tested, deployed, and operated the speed monitoring device, 3. an Alberta Motor Vehicle Registry Certificate confirming that Jozef Baars was the registered owner of the vehicle on the date of the alleged offence, and 4. affidavits of service confirming service of the

Summary Offence Notice, the photograph, Mr. Anderson’s affidavit, and the Motor Vehicle Registry Certificate. [ 6 ] The Act allows the accused to ask for an order requiring Mr. Anderson to attend for the purpose of cross-examination, but Mr. Baars did not do so. [ 7 ] Jozef Baars testified on his own behalf. [ 8 ] He testified that on September 15, 2013, he was driving and that he did not drive past any highway workers or occupied highway equipment. Mr.

Baars said that, before he reached any highway workers or occupied highway equipment, he came upon a queue of several vehicles waiting for a flag person to allow them to proceed past the highway workers and their equipment. Instead of waiting in line, Mr. Baars made a u-turn, drove out of the construction zone from the direction he had come, and took an alternate route to his destination.

He does not dispute that the vehicle in the Crown’s photograph is his or that when the speed monitoring camera photographed it, he probably was travelling at 77 kilometres per hour as he left the construction zone. [ 9 ] I found Jozef Baars to be credible. [ 10 ] 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. The only aspect of the Crown’s case that Mr.

Baars disputes is that he passed highway workers or occupied highway equipment when he was travelling faster than 60 kilometres per hour.

[ 11 ] No workers or highway equipment can be seen in the photograph of the Baars vehicle. William J. Anderson’s observations of the vehicle appear in paragraphs 7 and 8 of his affidavit: “7. At 13:22 I observed a vehicle that appeared to be travelling above the posted speed limit of 60 kilometers [sic] an hour. The speed monitoring device indicated the motor vehicle was travelling at 77 kilometers [sic] an hour and at the same time it captured a digital image and confirmed it was the same vehicle that I had directed the laser beam at and accepted the image with the data as being accurate.

The data embedded in the digital image included the event number VIOLATION #0002 . 8. Also, at the time I directed the laser at this motor vehicle there was worker activity in the speed monitored zone as indicated by my placement of an “X” beside the relevant circumstance(s):

a) one or more highway workers or flag persons were present YES

b) There were one or more pieces of highway equipment occupied by one of [sic] more highway workers present YES

c) There were one or more pieces of highway equipment on the highway that had their ministry-issued warning lights in operation present YES ” [ 12 ] Mr. Baars is not charged with speeding in a marked construction area in which workers and equipment were present.

The offence is driving faster than 60 kilometres per hour when passing highway workers (whether or not they are in a marked construction zone), or when passing occupied highway equipment in a marked construction area, or when passing highway equipment actually on the highway and with its warning lights operating. [ 13 ] In paragraph 7 of his affidavit, Mr. Anderson says that he saw the Baars vehicle and that it appeared to be speeding. In paragraph 8 of his affidavit, he says that there were highway workers and occupied highway equipment in the speed monitored zone.

Nowhere does he say that: 1. he observed the Baars vehicle apparently travelling above the speed limit when it passed highway workers or highway equipment and that he recorded the vehicle’s speed immediately after it passed the workers or equipment, or 2. the Baars vehicle actually was passing highway workers or occupied highway equipment when the speed monitoring device recorded its speed. [ 14 ] For these reasons, I find Jozef Baars not guilty. ____________________________ M.F. Martinez, J