Her Majesty the Queen - v. -, 2016 SKPC 101

IN THE PROVINCIAL COURT OF SASKATCHEWAN TRAFFIC SAFETY COURT Citation: 2016 SKPC 101 Date: September 6, 2016 Ticket: 83020455 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Monty Arendt Appearing: Rob Parker For the Crown Robert Fielding For the Accused DECISION M. GORDON , J [ 1 ] Monty Arendt is charged as follows: on July 9, 2015 at Moose Jaw, Saskatchewan did unlawfully commit the following offence under The Traffic Safety Act 199(1)(b).

As per The Traffic Safety Act 273(2) in that he exceeded the lawful posted speed limit of 80 km/h. [ 2 ] The Crown tendered its case by way of documentation as provided for in The Traffic Safety Act and The Traffic Safety (Speed Monitoring) Regulations [ Regulations ]. Exhibit P-1 contained the Crown’s case and consisted of the following:

i. Affidavit of Lisette Bysouth with photos A and B; ii. Notice of offence to registered owner; iii. Certificate of Administrator SGI; iv. The affidavit of Greg Neil McKinnon [ 3 ] Mr. Fielding’s argument focuses on the affidavit of Greg Neil McKinnon. The defence points out that it is a strict requirement of the legislation that the affiant Mr. Greg McKinnon, be tasked with monitoring the device on the day of the photograph. This is not a difficult requirement. He says this affidavit clearly does not comply with the Regulations for

section 259.1(4) of The Traffic Safety Act and therefore is not admissible. He argues that Mr. McKinnon’s affidavit is deficient. Therefore, the Crown is not able to rely on the presumption into 259.1(4) of the Act . As a result there is no evidence before the Court whether the photo radar device was being monitored by Mr. McKinnon on the date of the alleged offence. [ 4 ] The Crown filed a written brief suggesting that the Court should read paragraphs seven and eight of Mr. McKinnon’s affidavit together, and as a result conclude (as it is the only logical inference) that Mr.

McKinnon was responsible for monitoring the speed equipment on the date of the offence. The Crown suggests that it is ridiculous that Mr. McKinnon would perform the necessary tests and recover the USB key containing the photographs if he was not charged with monitoring on the day in question. [ 5 ] Most of the Crown’s written brief discusses the fact that it would be unrealistic to require the person responsible for monitoring the speed monitoring device to attend and perform the test and recover the photograph on the date of the offence.

This would require him or her to attend each night at 11:55 p.m. (some such time immediately before midnight) so as to insure the affidavit indicates the testing of the device and recovery of the evidence occur on the date of the alleged violation. [ 6 ] The Crown suggests that there are two purposes for the responsible person to attend at the speed monitoring device; i. Is to perform tests to insure the speed monitoring device is functioning properly. ii. To gather the necessary evidence by removing the USB key and submitting it for processing. [ 7 ] The Crown suggests that because Mr.

McKinnon did both these things on the day after the offence he is insuring that the evidence ultimately presented to the Court is accurate. By his very attendance at the speed monitoring device the only conclusion the Court should reach is he was responsible for it on the day of the offence. [ 8 ] Finally the Crown states that the Court should not interpret the legislation by using the rules of contract law. The legislation in this case should not be interpreted in the least favourable way to the Crown as that would be contrary to the legislative intent.

ISSUE Does the affidavit signed by Greg Neil McKinnon meet the requirements of

section 5(b)(iii) of the Regulations and remain admissible as evidence under

section 259.1(4) of The Traffic Safety Act? THE LAW AND THE RELEVANT LEGISLATION .....

ANALYSIS [ 9 ] In a prosecution the general rule is the Crown is not entitled to prove its case by affidavit evidence but must present vive voce evidence.

Section 259.1(4) of The Traffic Safety Act creates an exemption to this general rule and reads as follows:

(4) In a prosecution for an alleged contravention of a prescribed provision of this Act , an affidavit that is signed by a prescribed person or a member of a prescribed class of persons and that meets the prescribed requirements is admissible in evidence as proof, in the absence of evidence to the contrary, of the facts alleged in the affidavit, without proof of the signature or official character of the person purporting to have signed the affidavit.

Section 5 of the Regulations states: 5 For the purposes of subsection 259.1(4) of the Act, an affidavit must: (

a) Repealed. 2 Apr 2015 SR 21 /2015 s4 (

b) be signed by: (

i) a peace officer; (ii) a person purporting to have installed, operated or set up the speed monitoring device used to take the photograph of a vehicle; or (iii) a person tasked with monitoring the speed monitoring device on the date on which the photograph of a vehicle was taken. [ 10 ] Unless the affidavit meets the requirements of the Act and the Regulations it is not admissible under 259.4. This is the essence of defence counsel’s submissions. [ 11 ] The Crown argument avoids the issues set out by the defence.

It is not a question of whether the inferences the Crown wants the Court to draw can be properly made from the affidavit but rather at this stage is the affidavit admissible in evidence? Inferences can only be drawn from admissible evidence. [ 12 ] In my view the legislation is clear. The legislation requires that the person responsible for the particular device be the person responsible for it on the date of the offence. There is no requirement for personal attendance at the device location on the date of the offence. [ 13 ] Mr. McKinnon makes his affidavit with reference to 259.1 of The Traffic Safety Act and

section 5 of the Regulations . I agree that at paragraph three he clearly states he was tasked with monitoring of the speed monitoring device. However, when was he so tasked.? Mr. McKinnon may have known about the device as part of his general knowledge. He may have known how it worked or where it was located. There is nothing in his affidavit saying that he was tasked with monitoring that device on July 9, 2015. His affidavit evidence does not meet the requirement in the Regulations. [ 14 ] I do not find

section 5(b)(iii) ambiguous. This photo radar legislation provides the Crown with an exception to the general rule or as I term it a short cut process in proving such cases. The Crown’s case is a paper case meaning all the elements that the Crown must prove to secure a conviction can be by sworn affidavits and certificates providing these documents meet the legislated requirements. [ 15 ] I reject the Crown’s argument that the Court can assume and that it is the only logical inference that Mr. McKinnon was in charge of the device on July 9.

The plain reading of the legislation it seems to me is that the affiant must indicate that they were tasked with monitoring the speed monitoring device on the date the photograph of the vehicle was taken, that comes straight from the regulations. It is not an onerous requirement for the Crown to meet.

[ 16 ] Therefore the affidavit of Greg Neil McKinnon sworn December 21, 2015, is not admissible as it does not comply with the legislation. Therefore the charge is dismissed. _________________________________ M. Gordon J