2019 ONCJ 674, 2019 ONCJ 674

CITATION : Toronto (City) v. Biffis , 2019 ONCJ 674 DATE : September 18, 2019 HER MAJESTY THE QUEEN v DENNIS BIFFIS Ontario Court of Justice Toronto, Ontario E. Bobnar for the Prosecution A. Mocanu Agent for the Defendant Before: J. Opalinski J.P. Heard: January 29, 2019 Delivered: September 18, 2019 INTRODUCTION: 1 . The defendant, Dennis Biffis, (hereinafter referred to as the defendant) is charged on the 8 th day of December, 2017 at 5:34 pm., at eastbound Westhumber Boulevard, in the City of Toronto, with the offence of speeding 81 kilometers per hour in a 40 kilometer zone, contrary to

section 128 of the Highway Traffic Act, R.S.O. 1990 c. H.8 . 2 . The defendant by way of his agent Mr. A. Mocanu entered a plea of not guilty on January 29, 2019. The court heard evidence only from Toronto Police Officer Mark Zettler. CHARGES: 3 .

Section 128 of the Highway Traffic Act , supra, provides that: No person shall drive a motor vehicle at a rate of speed greater than what is contained in the provisions of

section 128 . ISSUE: 4 . There are three issues before the court. First, whether or not the prosecution has proven one key element of the offence beyond a reasonable doubt required to convict the defendant, namely, the specific times when the officer tested the laser device on the specific day in question. Is it enough for the officer to say that the testing was part of his daily routine without providing specific times as to when the tests occurred? Second, were the signs that were posted in fact proper regulatory signs as required by the Highway Traffic Act ?

What is sufficient evidence for the court to find that the signs were proper and regulatory? Third, in order to prove the case beyond a reasonable doubt, does the prosecution have to adduce evidence with regard to the municipality where the offence occurred or can the court take judicial notice of the municipality if the actual street and location of the street is stated in the evidence provided?

It is alleged that nowhere in the evidence provided did the officer specifically state that the road where the offence occurred was within the City of Toronto and that this evidence is required for the prosecution to prove the offence of speeding beyond a reasonable doubt. ARGUMENT FOR THE PROSECUTION:

5 . The prosecution submits that in his evidence in chief, the officer did state that he tested the laser unit at the beginning and end of his shift in his usual manner as part of his daily routine. While he does not have specific times when he tested the unit, he tests it on a daily basis as part of his daily routine before and after his shift according to manufacturer’s instructions.

With regard to the issue of whether or not the signs were regulatory and proper as required by the Highway Traffic Act , the prosecution contends that the officer fully described the signs and the defendant’s agent did not question the officer with regard to this evidence. No argument was made to the court by the prosecution with regard to the issue of location of the offence. ARGUMENT OF DEFENCE AGENT : 6 . The agent for the defendant has raised three arguments.

First, one of the essential elements of the offence required to be established in order for the court to convict a defendant of speeding is that the unit was tested at the beginning and at the end of the officer’s shift, according to manufacturer’s specifications.

It is not sufficient for the officer to give evidence that he tested the unit at the beginning of his shift prior to going out onto the road and at the end of his shift in accordance with his usual daily practice, but that specific times need to be provided and the evidence should further state that testing occurred at specific times throughout the shift and that each time when the testing occurred, the unit was found to be in proper working order. There is no evidence as to when the officer started his shift and when he ended his shift for the day in question and when, specifically, this testing occurred.

The court has merely heard that it was tested in accordance with manufacture’s specifications. 7 . Second, the agent for the defendant submits that the officer gave evidence that there was a posted sign indicating 40 km per hour, but there was no evidence provided as to the height, width or where the sign was posted. This evidence must be adduced and proven beyond a reasonable doubt. 8 . Third, one further element required for the court to convict the defendant beyond a reasonable doubt was also missing, namely, nowhere in his evidence did the officer state that the offence occurred in the City of Toronto.

In the absence of evidence with regard to any one of these three points, which are essential elements of the offence that the prosecution must prove beyond a reasonable doubt, the agent for the defendant contends that the court should find the defendant not guilty. EVIDENCE FOR THE PROSECUTION: 9 . The court heard evidence from Toronto Police Officer Mark Zettler. 10 . The evidence of Officer Mark Zettler may be summarized as follows: (

a) On December 8th, 2017 at approximately 5:34 pm, Officer Zettler was working an afternoon shift doing traffic enforcement in 23 Division. His sole responsibility was to respond to traffic complaints and issue provincial offences tickets. Specifically the area he was directed to address were speeding complaints along Westhumber Boulevard. (

b) At approximately 5:34 or 5:30 he headed down to the area of Westhumber Boulevard, in the City of Toronto. Westhumber Boulevard runs between Kipling Avenue and Martin Grove Road and there are two lanes, one for eastbound traffic and the other for westbound traffic. He positioned his scout car facing north on Amoro Drive so that he could observe traffic traveling both eastbound and westbound on Westhumber Boulevard. (

c) The officer was driving scout car 2380 which is a stealth grey police vehicle having black reflective markings on the outside and equipped with interior and exterior emergency lights and a siren. He was using a Ultra Lyte LR B with a serial number UX029218 with a manufacturing date of March 3 rd , 2016. (

d) The officer uses the same speed-measuring device with the vehicle on a daily basis and runs tests prior to going out on the road with this device. It is part of his daily routine and the tests are done according to manufacturer’s specifications. (

e) He tested the device in the back parking lot of the police station prior to going out on the road that day. He did not put any test times down in his notes; however, it is part of his daily routine to test the device prior to leaving the parking lot and once again after he returns to the police station at the end of his shift. The device was also tested again during the course of his duties that day and there were no deficiencies. Each time he tested the device according to manufacturer’s instructions it was found to be working properly. (

f) The officer, when cross-examined, gave specific evidence as to how the unit was tested, such testing being performed according to what he believed to be a photocopy of the original manual for this device. If the unit was not working properly when tested, it would not be able to register speeds, distance and would display error codes. (

g) The officer indicated that the speed limit on Westhumber Boulevard is a posted 40 kilometer an hour zone and that there are several signs that run in each direction on Westhumber Boulevard. They are white reflective speed signs, rectangular in shape, bearing a

large four and zero number on a white reflective background. Beneath the four and the zero, in a black background, are written in whiteletters K-M-H, KM/H. All the signs are the same and prior to setting up at this location the officer drove east and west on WesthumberBoulevard and observed these posted signs between Kipling Avenue and Martin Grove Road. (

h) The officer observed the defendant traveling eastbound on Westhumber Boulevard, in the City of Toronto at 5:34 pm driving asilver four door Honda motor vehicle at a high speed. (

i) The officer pointed the laser device at the vehicle by placing the red dot at the front licence plate area of the vehicle and thenpulling the trigger on the device. By doing so it measured the defendant traveling at a speed of 81 kilometers per hour in a 40 kilometerzone at a distance of 104.7 meters away. (

j) The officer stopped the defendant, asking the defendant for his driver’s licence, ownership and insurance and all threedocuments were provided. (

k) The officer indicated that the device was capable of measuring the speed of an object which in this case was a vehicle. (

l) The officer further indicated that he has been trained and qualified on that particular laser device since 2007. (

m) Traffic was medium, not bumper to bumper, but travelled a lot for a residential road. There were no obstructions between himselfand the defendant’s motor vehicle. The roads were dry and the weather was cold and clear on that day. EVIDENCE FOR THE DEFENCE: 9. The defendant chose to call no evidence. THE LAW: 10. The defendant is charged with the offence of speeding 81 kilometers in a 40 kilometer zone contrary to

section 128 of the HighwayTraffic Act supra. 11. In the decision of R. v. Sim, [1988] O.J. No. 2250 (Ont. C.A.), the Court of Appeal found that: There was evidence of the police officer that he tested the radar unit both before and after it measured the respondent’s speed and thatthere was evidence from which it can be concluded that that the police officer was familiar with the unit and the manner in which it wasintended to be used. 12. The court found that the trial justice did not err in law and dismissed the appeal. 13. The Court of Appeal in R. v. Vancrey, [2000] O.J.

No. 3033, considered what evidence is necessary for the prosecution to call toprove its case beyond a reasonable doubt with regard to the charge of speeding. The only evidence that the court had to consider was theevidence of the two police officers as the defence chose not to call any evidence. 14. The issue that the court had to determine was whether or not the evidence adduced at trial was adequate to establish the accuracyand reliability of the speed-measuring device. 15.

The trial justice of the peace stated that ‘in order to accept the Crown evidence of the speed of the appellant’s vehicle, there must besome sufficient guarantee of the trustworthiness of the laser unit’. 16. The Court of Appeal making reference to the decision in D’Astous v. Baie-Comeau (Ville) (1992), (QC CA), 74C.C.C. (3d) 73, indicated that the prosecution must prove that the speed-measuring device was ‘operated accurately’ at the time of the

offence. In order to do so the Crown had to demonstrate that: • The operator was qualified: he followed a course, he passed an exam, he has several months’ experience; • The device was tested before and after the operation; • The device was accurate as verified by a test and then the reading of the device becomes prima facie evidence of the speed of thevehicle, subject to evidence to the contrary, if any. 17. In R. v.

Vancrey, supra, the Court of Appeal found that the trial court had received evidence that the officer was ‘trained andexperienced, he tested the device both before and after its use in accordance with the manufacturer’s instructions and it was both workingproperly ‘on the date in question’ and was accurate. 18. In the decision of R. v. Niewiadomski, [2004] O.J. No. 478 (OCJ), the court found that the officer in his evidence had made nonotation of the tests he had performed on the device on the day in question and admitted that he had not followed the guidelines.

Thecourt found that a trial justice cannot take judicial notice of the ‘reliability and accuracy of the readings’ of the device unless it is firstestablished that the operator of the device was trained and qualified and the device itself was in proper working order before and after its‘proper operation’. Only when this is done has the prosecution ‘established a prima facie case that can support a conviction unless thedefence raises a reasonable doubt through independent evidence or through cross-examination of the prosecution witness’. (at para 26) 19.

The court found that ‘the evidence in cross-examination of the police officer should have raised a reasonable doubt in the mind ofthe learned Justice of the Peace as to the qualifications and training the officer received and whether or not the device was in properworking order’. (at para 30) The manufacturer of the device has set out specific testing procedures for a reason and that is so that they becomplied with. 20. In R v.

Guan, 2014 ONCJ 151 (OCJ), the officer was being cross-examined on the issue of why he did not note his observations ofthe results of the specific tests, the defendant having been charged with speeding and the officer having measured the defendant’s speedwith a radar device. The officer indicated that he never notes the results of the test because he does it each day.

He knows what he islooking for and when a unit is not working properly, he would have taken it out of service. (at para 5) The court had to be satisfied thatthe evidence of the officer established beyond a reasonable doubt that the radar employed by the officer to measure the speed of thedefendant was operating properly according to manufacturer’s specifications. The court adopted the position taken in R. v. Thompson(2001), 151 C.C.C. (3d) 330 (Ont. C.A.), that it is open to a trier of fact to find that acts were performed based on usual practice.

Theaction taken by the officer supports his evidence that the pre and post event testing of the unit established beyond a reasonable doubt thatit was functioning properly. (at para 14) 21. Justice Durno in R. v. Steenson, 2015 ONSC 2160 (OSC), made reference to the fact that in an impaired case the officer’s notebookdid not contain any reference to observation about alcohol, or red-rimmed or watery eyes., but contained details about the appellant’svalid identification, name, address and postal code. The absence of this in his notes did not discredit the evidence that the officer gaveviva voce.

Justice Durno indicated that R. v. Zack, [1999] O.J. No 5747 (OCJ), does not stand for the pro​position that if an event orobservation is not in the notes, it did not occur. There are many instances where the courts have accepted the events or observations thatwere not noted in the witness’ notes. (at para 121) The officer’s notes are not evidence, but are merely a testimonial aid and are used torefresh their memory provided they have an independent recollection of the event. Otherwise it would be sufficient to have the officer’snotebook become the evidence.

The significance of an omission in an officer’s notebook should be determined by the trier of fact on acase by case basis looking at the totality of the evidence presented. (at para 122) 22. The court in Ontario v. Druce, [2006] O.J. No. 2028 (OCJ), addressed the issue of whether or not the speed signs were regulation-issue and made reference to the maxim, omnia praesumuntur rite esse acta which states: that in the absence of evidence to the contrarythat the signs were not ‘regular’ the court can rely on the presumption of regularity and the maxim. (at para 9) 23. R v.

Lavelle (1958), (ON SC), 122 C.C.C. 111 (OSC), dealt with the issue of signs and their proper erection withregard to a stop sign. The court held that when it is established that a sign has been erected pursuant to the Regulations of an Order inCouncil and of a by-law, ‘it is a reasonable inference and there must be a presumption that the officials of the municipality, acting underinstructions, have so erected a sign in size, colour and in location in compliance with the Regulations.’ ‘When an officer gives evidencethat a stop sign was erected at a location the Crown has established a prima facie case’.

It is not the obligation of the Crown to go anyfurther by bringing in a municipal engineer who can give evidence as to the location, height and size of the sign to establish conformitywith the Regulations. (at para 4) If the defendant wishes to raise the issue of non-conformity of the sign, it is incumbent upon thedefendant raising this point to do so. ANALYSIS: 24.

With regard to the first issue before this court, this court finds that if the readings of the speed-measuring device are to be acceptedas evidence to make out an essential element of the offence of speeding, which is the speed at which the moving motor vehicle was

traveling, the evidence of the officer has to sufficiently establish that the unit was working properly and that the officer is qualified and trained in the use of the unit. It is on the basis of the reading registered on the laser device that the court is being asked to convict the defendant of the offence of speeding. This reading confirms the officer’s visual observation that the defendant was speeding and generates an actual measurement of the speed at which the defendant’s motor vehicle was travelling. 25.

In order to establish that the unit was working properly, the officer’s evidence has to contain how he tested the unit, namely, according to manufacturer’s specifications at the beginning and end of his shift and that the unit was found to be working properly each time. For the court to rely on this reading of speed, the court must be satisfied beyond a reasonable doubt that this laser unit was working properly and capable of recording the speed of a moving motor vehicle. 26. This court further finds as stated in R. v.

Steenson , supra, that the officer’s notes are there for the purpose of refreshing the officer’s memory as to specifics. They were qualified and he indicated he had an independent recollection. His viva voce evidence was that he tested the device according to manufacturer’s specifications at the beginning of his shift prior to leaving the police station in the back parking lot as was his usual and daily practice and that he did so upon finishing his shift which would have been after dealings with the defendant.

The unit was also tested during the course of his duties that day and that each time it was tested according to manufacturer’s instructions it was found to be working properly. He further indicated that if the laser unit had recorded a malfunction it would not have been able to work. Consequently, the court finds that the evidence supports that the laser unit was working accurately and properly and that there has been no evidence to the contrary adduced by the defendant to refute this finding.

The only evidence before the court that the court can rely on is the evidence of the officer who stated that the laser unit measured the defendant traveling at 81 kilometers in a 40 kilometer zone at a distance of 107.4 meters. The court finds that one essential element of the offence, has been made out by the prosecution beyond a reasonable doubt. 27. The court further finds that the officer was trained and qualified in the use of the laser unit in question. As indicated by the Court of Appeal’s decision in R. v.

Sim, supra, it would appear that it is sufficient for the prosecution to show that ‘the police officer was familiar with the unit and the manner in which it was intended to be used’ and that it is not necessary to go into any further detail as to the training of the officer, his years of experience and qualifications. By showing that he was trained in the use of the unit shows that he is qualified to use it, unless there is some evidence adduced to the contrary or doubt created through cross-examination of the police officer that would suggest that he was not trained or qualified in the use of the unit.

This was not done. The court finds that the element of the offence with regard to the qualifications and training of the officer has been met and that this is one of the essential elements of the offence of speeding that the prosecution is required to establish. Without this evidence being established, the court cannot rely on the finding of the laser device with respect to whether or not it was functioning properly, if the court is not satisfied that the person who tested the device was trained and qualified to do so. 28.

With regard to the second issue before the court, that being: was there properly posted signage on Westhumber Boulevard, in both Ontario v. Druce, supra, and R v. Lavelle, supra, the court clearly stated that a court can rely on the maxim omnia praesumuntur rite esse acta. The prosecution need only establish through the evidence of the officer, in the case of a speeding offence, what the speed in the location in question is and if it is a posted speed what is indicated on the sign.

If the defendant wishes to question the propriety of the sign and whether or not it is erected pursuant to the regulations, it is incumbent upon the defendant raising this issue to adduce evidence to show that it is not a sign which conforms to the regulations. There was no such evidence provided to the court by the defendant. The officer did give a detailed description of several signs erected in both directions of Westhumber Boulevard that indicated 40 kilometers per hour.

In the absence of any evidence to the contrary, this court accepts that the signs were properly erected and indicated that the speed limit on Westhumber Boulevard for traffic traveling eastbound was 40 kilometers per hour. Consequently, this essential element of the offence of speeding has been made out by the prosecution beyond a reasonable doubt, in that the posted rate of speed on Westhumber Boulevard was 40 kilometers. 29. Finally, this court was asked to rule with regard to whether or not there is evidence as to what municipality the offence occurred in.

This court finds that the prosecution has proven beyond a reasonable doubt the municipality where the offence occurred. The officer in his evidence did indicate that Westhumber Boulevard is in the City of Toronto. DISPOSITION: 30. For the reasons set out above, the court finds that the prosecution has met its onus of proving beyond a reasonable doubt that the defendant was speeding at a rate of speed of 81 kilometers in a 40 kilometer zone on December 8, 2017. The court finds the defendant guilty of contravening

section 128 of the Highway Traffic Act , supra .

Dated the 18th day of September, 2019, at the City of Toronto “J. Opalinski” Joanna Opalinski J.P.