r v. DINO ANTONACCI, 2011 QCCQ 12420

Directeur des poursuites criminelles et pénales c. Antonacci 2011 QCCQ 12420 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Criminal and Penal Division” No.: 500-61-291859-107 DATE: October 21, 2011 ______________________________________________________________________ PRESIDING: Johanne White, Presiding Justice of the Peace ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor v.

DINO ANTONACCI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Dino Antonacci is charged with driving his vehicle at 135 km/h in a 70 km/h zone, contrary to

section 329 of the Highway Safety Code . ISSUES: [ 2 ] 1. What is the meaning of “evidence to the contrary”? 2. Does a GPS reading constitute evidence to the contrary that could raise a reasonable doubt? 3. In light of all the evidence, does the defendant’s version raise a reasonable doubt? 4. If not, has the prosecution proved the offence charged beyond a reasonable doubt?

THE PROSECUTION’S CASE: [ 3 ] Yves Labbé, an officer of the Sûreté du Québec, testified regarding the circumstances surrounding the issuing of the speeding ticket to the defendant on April 15, 2010. [ 4 ] That day, at about 10:59 a.m., Constable Labbé was participating in a radar operation on Highway 720 East, near the Greene entrance. [ 5 ] The tests carried out before and after the operation show that the speed meter was working properly. Constable Labbé is a radar operator qualified to use conventional radar devices since May 1992 and to use laser speed detectors since June 2001.

He has also been successfully retested on this equipment every five (5) years. [ 6 ] The patrol car was parked near the concrete traffic barrier separating the Greene entrance ramp from the highway. Constable Labbé was seated on the driver’s side of the vehicle, his legs outside the car, facing oncoming traffic. [ 7 ] Constable Labbé observed a vehicle travelling in the centre-left lane that was fast approaching two vehicles in the centre- right lane. He estimated the speed of that vehicle at 140 km/h and, from a distance of 274 meters, clocked it at 135 km/h using a laser speed detector.

The sign indicating the 70 km/h speed limit was located 1.5 kilometers from where the offending vehicle was clocked.

[ 8 ] The vehicle remained in clear view until it was stopped by Sergeant François Tardiville, who was responsible for stopping it. Constable Labbé kept visual contact with Sergeant Tardiville’s patrol car, communicating with Tardiville by radio and confirming to him that he had stopped the right vehicle. THE DEFENDANT’S CASE: [ 9 ] Represented by Mtre Rousseau, Antonacci told his version of the facts. [ 10 ] On April 15, 2010, Antonacci took the 720 to go to the Palais des Congrès. He drove in the centre-left lane.

He was heading toward the tunnel when he saw the police officer about 300 metres away: [ translation ] And as I was driving toward the tunnel, approximately three hundred meters (300

m) away, I saw the police officer, I checked the distance, the speed I was going and I looked, I was travelling at seventy-eight kilometers per hour (78 km/h). [ 11 ] When asked how he knew how fast he was going, he answered: [ translation ] Well, I have a GPS, because in the downtown area, sometimes with one-way streets, I never know how to get where I’m going, so I take my GPS, and on my GPS it was exactly 78 km/h. [ 12 ] He explained how he knew that he saw the police officer from a distance of 300 meters: [ translation ] I saw him at about Guy, because what happened, when I got the ticket, I immediately called a lawyer and they told me to check the distance that very day, so, what I did, with my odometer, I checked the distance from where I had seen the police officer, and it was 300 meters.

And further: [ translation ] So, I remembered approximately, when I went back again the same day, I went back again the same day and I checked approximately, OK it was about there that I saw the police officer, then I calculated the distance. [ 13 ] He estimates that when he saw the police officer, he was near Guy. Antonacci also affirms that near Guy, he was passed by two cars that he cannot describe.

THE DEFENDANT’S POSITION: [ 14 ] Mtre Rousseau argues that the defendant’s precise testimony to the effect that, when 300 meters from the police officer, he looked at his GPS and observed that he was driving at a speed of 78 km/h, constitutes evidence to the contrary capable of raising a reasonable doubt. THE POSITION OF THE PROSECUTOR: [ 15 ] Mtre Viau-Smith states that the presumption of reliability of the speed of the offending vehicle is established by the prosecution’s evidence. The explanations given by the defendant are not very credible and do not raise a reasonable doubt. ANALYSIS: [ 16 ] 1.

What is the meaning of “evidence to the contrary”? [ 17 ] The expression “evidence to the contrary” has been the subject of many analyses concerning the operation of a motor vehicle with a blood alcohol level exceeding the legal limit. [ 18 ] In R. v. Moreau , [1] Beetz J., for the majority, states:

This elaborate legislative scheme contemplates and provides for elements of positive certainty such as the official approval of certain kinds of instruments, the designation of analysts and qualified technicians, a maximum time period between the commission of the alleged offence and the taking of a breath sample, and the reading by a qualified technician on an approved instrument of a proportion of alcohol in the blood in excess of a specified proportion.

Once the conditions prescribed or contemplated by this scheme are fulfilled, a presumption arises against the alleged offender which he can rebut by tendering “evidence to the contrary”. But in my opinion, no evidence is “evidence to the contrary” when its only effect is to demonstrate in general terms the possible uncertainty of the elements of the scheme or the inherent fallibility of instruments which are approved under statutory authority .

Thus, the proof by expert evidence that, for physiological reasons of a general nature, the maximum time period of two hours between the commission of an offence and the taking of a breath sample is too long would not be “evidence to the contrary”. (See also R. v. Gaetz ). [ 19 ] And further: I think the assimilation of instruments approved under statutory authority to ordinary instruments amounts to an error in law. [2] [ 20 ] In R. v.

Crosthwait , [3] the Supreme Court states that the mere possibility of some inaccuracy in the apparatus will not assist the accused and does not constitute evidence to the contrary. [ 21 ] In R. v. Déry , [4] the Court of Appeal specifies what constitutes evidence to the contrary: [ translation ] This evidence to the contrary must raise a reasonable doubt. It need not be convincing beyond a reasonable doubt.

As the courts have indicated on numerous occasions, while this evidence must have probative value, it need not convince the Court. [ 22 ] And further: [ translation ] Fifteen years earlier, in Moreau , both Laskin C.J., dissenting but not on this point, and Beetz J., for the majority, were of the opinion that the accused had only to raise a reasonable doubt. [5] [ 23 ] Pigeon J., for the Supreme Court in Crosthwait , concludes that, in the presence of a presumption, the evidence to the contrary need do no more than raise a reasonable doubt: [6] This does not mean that the accused is at the mercy of the technician: while the certificate is evidence by itself, the facts of which it is evidence are “deemed to be established only in the absence of any evidence to the contrary”.

Thus, any evidence tending to invalidate the result of the tests may be adduced on behalf of the accused in order to dispute the charge against him. As was pointed out in R. v. Proudlock , it is not necessary in such cases that the rebutting evidence should do more than raise a reasonable doubt and, of course, this evidence may be sought in depositions given by witnesses of the Crown as well as in depositions of defence witnesses. [ 24 ] In short, even when an instrument carries a presumption of accuracy, that does not place a persuasive burden on the defendant.

In the absence of any clear indication to the contrary in the statute, the defendant has only to raise a reasonable doubt to be acquitted of the offence with which he is charged. [7] [ 25 ] These principles set out in criminal case law are applicable to the presumption of accuracy of a speed meter.

This conclusion also flows from the analysis of the Court of Appeal of Quebec with regard to conventional speed meters: [8] [ translation ] So, if these are established, the report of the radar operator will have much the same effect as that of the breathalyzer technician : when proof of the competence of the police officer and the proper use of the apparatus is established, the speed indicated by the radar shall be prima facie proof of the speed of the vehicle. To prove his innocence, the defendant will have to present evidence to the contrary .

In short, proof that the operator is qualified, that the apparatus was tested before and after use, and that the tests showed that the instrument was accurate establishes a prima facie case, subject, of course, to the reasonable doubt that the accused may raise . (Emphasis added.) [ 26 ] Therefore, the evidence to the contrary that a defendant may present need only raise a reasonable doubt. This evidence must however be credible, have probative value, and not rely on the mere possibility of the inaccuracy of the apparatus. Evidence to the contrary cannot be based on speculation or estimates.

Thus, [ translation ] “a mere estimate of a speed that, moreover, is above the legal limit” cannot be characterized as evidence to the contrary. [9] [ 27 ] 2. Does a GPS reading constitute evidence to the contrary that could raise a reasonable doubt? [ 28 ] The Global Positioning System (GPS) is first and foremost a geolocation system. Persons using such a system can determine their current location and how to get where they wish to go. [ 29 ] In P.G.Q v.

Robitaille, the Court of Appeal says the following about the use as evidence of commonly used objects: [10] [ translation ] If it were necessary in every speeding case to prove that the odometer was in good working order, we would also have to adduce expert evidence regarding the accuracy of a watch every time we had to prove the time of an event and to call upon experts to prove that a

measuring tape or a ruler was in perfect condition every time we wanted to measure the distance in feet or inches from one object to another, etc. [ 30 ] In the examples given by the Court of Appeal, a watch is, in fact, designed to show the time, a ruler, to measure distance, and a speedometer, to measure the speed of a vehicle.

The primary function of a GPS, however, is not to establish the speed of a vehicle. [ 31 ] The Court therefore believes that the Court of Appeal’s comments regarding everyday objects cannot be applied to the GPS since, unlike the examples given by the Court, its primary function is not that which the defendant seeks to introduce. [ 32 ] This was also the conclusion reached by the Superior Court in Sarto Landry v.

Director of criminal and penal prosecutions : [11] [ translation ] [16] Now, the trial judge, noting that the appellant had no expert to prove the reliability of his Garmin GPS unit, granted an adjournment to allow him to find one. [17] However, when the inquiry resumed, the Court refused to recognize the mechanical engineer as an expert witness, considering his lack of expertise with the Garmin GPS unit and, during the appeal hearing, the appellant went so far as to criticize the trial judge for not allowing him to find another expert. [18] Therefore, failing to accept the fact that the appellant’s two speed-measuring instruments were themselves evidence to the contrary, the trial judge rightly rejected that defence. [ 33 ] The reliability of the defendant’s GPS, as a speed measurement device, along with its proper functioning, were not entered in evidence.

Under these circumstances, we can hardly conclude that a mere GPS speed reading constitutes evidence to the contrary capable of raising a reasonable doubt. [ 34 ] 3. In light of all the evidence, does the defendant’s story raise a reasonable doubt? [ 35 ] The Court is faced with contradictory evidence regarding the speed at which Antonacci’s vehicle was travelling. [ 36 ] The Supreme Court has often dealt with the question of credibility in light of contradictory evidence, noting that the purpose of assessing the credibility of testimony is not to choose one version over another.

It is, rather, a question of determining whether, taking into account all of the evidence, the Court is left with a reasonable doubt concerning the guilt of the defendant. [ 37 ] In criminal matters, the Supreme Court has stated the approach to be followed in matters of contradictory evidence: [12] First, after considering the whole of the evidence and not just the testimony of the accused, if the Court believes the testimony of the accused, it must acquit; Second, after considering the whole of the evidence, if the Court does not believe the testimony of the accused but is nevertheless left with a reasonable doubt by it, it must acquit.

Third, even if it is not left with a reasonable doubt by the testimony of the accused, the Court must examine the whole of the evidence and determine whether the prosecution has proved the guilt of the accused beyond a reasonable doubt. [ 38 ] In Dinardo v. The Queen, [13] the Court of Appeal recently stated: [ translation ] … Testimony must be considered as a whole. In this matter, which falls within the sovereign jurisdiction of the trier of fact, a specific piece of evidence may lead the judge to believe or disbelieve a witness. [ 39 ] In this case, the versions agree on several points:

- the offending vehicle was travelling in the centre-left lane - the defendant’s vehicle was travelling in the centre-left lane at the time the police officer was operating a laser device - the defendant’s vehicle was travelling above the speed limit [ 40 ] It is regarding the speed at which the vehicle driven by Antonacci was travelling that the stories differ.

The defendant claims that he used his GPS to check his speed when he was 300 meters from the police officer. [ 41 ] The Court considers that a mere GPS reading is not sufficient to raise a reasonable doubt concerning the speed clocked using a laser speed meter. [ 42 ] It is nevertheless true that the defendant also claims to have checked his speedometer to determine his speed. Surprisingly, this action, which could confirm the speed reported by the GPS device, was not mentioned in the defendant’s testimony in chief.

When he mentioned his speedometer under cross-examination, however, the use he had made of it remained vague and imprecise. [ translation ] Q: O.K. So, do I understand that you relied solely on your GPS that day to check your speed? A: Not at all, well, no, I have my odometer too. [ 43 ] This portion of the defendant’s testimony gives no indication as to when he checked his odometer. [ 44 ] Moreover, he affirms that he saw the police officer from a distance of 300 meters.

How did he determine that distance? [ translation ] Well, of course, when you see a police officer, your automatic reaction is to look right away, oh, there’s a police officer, and you look to see how fast you’re going, O.K, fine, no problem.

So, I remembered approximately, when I went back again later that day, I went back the same day, and I checked approximately, OK , it was about there that I saw the police officer, then I calculated the distance. [ 45 ] And further: [ translation ] I went back at about four o’clock (4:00), four-thirty (4:30), yes, and there was quite a lot of traffic, too. [ 46 ] The distance of 300 meters referred to by the defendant is an approximation established following his return to the location more than six hours after the offence.

This distance is thus not exact. [ 47 ] The difference between the defendant’s approximation (300 m.) and that established by the radar operator is minimal. At a distance of 300 meters from the officer, the speed of the offending vehicle had not yet been clocked, but it was clocked when the vehicle was 274 meters from the police office. Moreover, the distance established by the radar operator is not an approximation: it is the distance recorded by the laser gun at the time the offending vehicle was clocked.

This method of establishing the distance is much more reliable. [ 48 ] In short, after considering the whole of the evidence, the Court does not believe the defendant’s story. His testimony is vague and does not rebut the presumption of reliability of the laser gun established by the prosecutor. The content of his testimony, having regard to the whole of the evidence, does not raise a reasonable doubt in the Court’s mind. [ 49 ] 4. Has the prosecution proved the offence charged beyond a reasonable doubt? [ 50 ] The evidence presented by the prosecutor is precise and plausible.

Constable Labbé testified clearly about the circumstances of the offence. All the elements required by case law, in particular by Ville de Baie-Comeau v. D'Astous , are included in the case for the prosecution. It should also be noted that the offence occurred in broad daylight and that nothing supports the hypothesis that there was any confusion concerning the offending vehicle. [ 51 ] Consequently, given the whole of the evidence, the Court finds that the offence with which the defendant is charged has been proved beyond a reasonable doubt.

FOR THESE REASONS, THE COURT: CONVICTS the defendant of the offence with which he is charged; SENTENCES HIM to pay a fine of $810 plus all costs; GRANTS HIM three months to pay this fine. __________________________________ Johanne White, presiding justice of the peace Mtre Emmanuelle Viau-Smith For the prosecutor Director of criminal and penal prosecutions Mtre Nicolas Rousseau For the defendant Date of hearing: July 12, 2011