r v. DAVID MARTIN, 2016 QCCQ 13682

JW0192 Director of Criminal and Penal Prosecutions c. Martin Director of Criminal and Penal Prosecutions v. David Martin 2016 QCCQ 13682 COURT OF QUÉBEC CANAD A PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No : 500-61-414685-157 DATE: November 25, 2016 ______________________________________________________________________ BEFORE MADAM JOHANNE WHITE, JUSTICE OF THE PEACE AND JUDGE ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor v.

DAVID MARTIN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ CONTEXT [ 1 ] The Defendant is alleged to have committed

an act endangering human life and safety or property while driving a road vehicle contrary to

Section 327 of the Highway Safety Code [1] .

THE PROSECUTION’S EVIDENCE [ 2 ] On June 13, 2014 Officer Marc Lozeau and a colleague were driving in an unmarked car in the left lane on Highway 20 East. [ 3 ] Heavy showers made the highway extremely wet and aquaplaning occurred during the drive. [ 4 ] Officer Lozeau observed a car coming at high speed behind his vehicle. [ 5 ] The car passed the police officers by moving in the right lane before returning to the left lane. [ 6 ] Officer Lozeau followed that car at a speed of 140 km/h for 500 to 600 meters. [ 7 ] Both cars had to slow down because of the traffic. [ 8 ] Officer Lozeau moves into the right lane, alongside the speeding car to show the driver his badge.

The driver ignores him and accelerates when the car preceding his moves to the right lane in order to let him pass, because the Defendant was tailgating him. [ 9 ] The activation of the siren and the flashing lights have no effect on the driver who accelerates to a speed of 140 km/h. [ 10 ] The police officers have difficulty keeping up with him because of the heaving rain. [ 11 ] The speeding car moves to the right lane and slows down until it reaches a speed of 110 km/h. [ 12 ] Officer Lozeau’s colleague is showing him his badge while the siren and flashing lights are still activated. [ 13 ] The driver sets off again and passes the car in front of the officers’ car on the right, without using his flashers. [ 14 ] The driver picks up speed and the police officers have to slow down because of the aquaplaning condition. [ 15 ] They requested the help of the patrollers, still following the car at a distance of approximately 150 meters, sirens and lights still on, while the driver maintains a speed of between 130 and 140 km/h. [ 16 ] Without indicating his intentions, the driver passed the police officers’ car on the right for a third time, while all the cars on the

road had slowed down, because of the siren and flashing lights. [17] Although the speeding car is then in the left lane, the driver crosses all the lanes to move in the extreme right lane, withoutindicating his intentions, in order to take the Boulevard des Sources North exit. [18] While driving on Boulevard des Sources, the driver finally stops in the left lane. [19] Officer Lozeau walks to the car with his badge and identity card with his picture. [20] The Defendant is using his cell phone and refuses to open the door. [21] Officer Lozeau knocks on the driver’s window and tells the driver to come out. [22] The police officer then orders the driver to come out of the car, which he finally does. [23] A marked patrol car arrives and Officer Lozeau describes to the officers the driving behaviour of the Defendant. [24] The driver cries and tells Officer Lozeau that he did not know they were police officers and thought they were ‘crooks’ going afterhim.

THE DEFENDANT’S EVIDENCE [25] Mr. Martin confirms that it was raining heavily on the day he was stopped by Officer Lozeau. [26] His speed was 70 km/h when he was crossing the bridge, on his way to work. [27] After the bridge, he drove in the right lane of this two-lane highway with a speed limit of 100 km/h. [28] Mr.

Martin does not remember precisely the speed at which he was driving that day, or whether or not he changed lanes. [29] When he was forced to stop, he initiated a ‘911’ call, and confirms that his doors were locked. [30] He explains that he did not know what was happening and he felt threatened. [31] He claims that no sirens or flashing lights were activated. [32] When asked at what speed he was driving, he answered that he was moving with the traffic.

QUESTIONS AT ISSUES [33] The Defendant alleges that he did not do anything wrong and did not deserve this ticket. [34] The Court must therefore determine whether the alleged infraction has been established, beyond any reasonable doubt. ANALYSIS [35]

Section 327 of the Highway Safety Code clearly prohibits any speed or action that can endanger human life and safety or property. [36] The Defendant and the police officer do not share the same version of the events that occurred on the highway. [37] 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. [38] When assessing the credibility of a defendant, the Court must, however, take into account the evidence as a whole, as established

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. [39] Does the Court believe Mr. Martin’s testimony? Or, is the Court left with a reasonable doubt, considering the evidence as a whole? [40] Although the Defendant adamantly claims that he is a victim of a police error, the Court disregards his testimony. [41] First, he has no recollections of the speed at which he was driving on that day.

His testimony as to what happened on that roadrelies more on his driving habits than on precise memories of the event. [42] Furthermore, the Court finds it strange when he was forced to stop, that he did see the police officer’s badge, and yet decided tocall 911, and maintained his car doors locked. [43] He said he felt threatened, but this event occurred at 9:45 in the morning of June 13, 2014. What could be so threatening in broaddaylight on a highway? Unmarked police patrol cars are frequent on the roads. [44] If the police officers confused the Defendant’s car with another one on the road, Mr.

Martin never mentioned the presence of avehicle similar to his driving recklessly on that day. [45] That being said, the Court finds Officer Lozeau to be a thoroughly credible witness. He testified precisely, convincingly, bydescribing the actions he considered to be dangerous. [46] Officer Lozeau is an investigator, not a patroller. In his job, he seldom gives statement of offence. However, on that day, he couldnot overlook the driver’s behavior.

This adds credibility to his testimony. [47] The Court believes the Officer when he mentioned that the siren and lights were activated, at which point other cars slowed down,which made it easier for the officers to stop the Defendant. [48] The Court is convinced beyond a reasonable doubt that the events did indeed occur as described by Officer Lozeau, and that theDefendant’s behavior on the road on that day was endangering human life and safety.

FOR THESE REASONS, THE COURT: [49] FINDS THE DEFENDANT guilty of the offence held against him; [50] CONDEMS THE DEFENDANT to pay the minimal fine of ONE THOUSAND DOLLARS ($1,000.00); [51] SETS THE REPRESENTATIONS according to

section regarding the costs or the delay on MONDAY, DECEMBER 12, 2016 at14h00, Room 5.06. If there are no representations to be made, parties or the lawyers do not have to be present. In that case, theDefendant will have to pay the costs, and the Court will grant a delay of THREE months to pay. __________________________________ JOHANNE WHITE JUSTICE OF THE PEACE and JUDGE Me Mark Mastromonaco For the Petitioner Me Nicolas Glendenning For the Director of Criminal and Penal Prosecutions Trial held on September 9, 2016.