2023 QCCQ 7198, 2023 QCCQ 7198

Director of Criminal and Penal Prosecutions c. Towie 2023 QCCQ 7198 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF KAMOURASKA LOCALITY OF RIVIERE-DU-LOUP « Criminal and Penal Division»

N° : 250-61-062258-226 DATE : October 19, 2023 ______________________________________________________________________ UNDER THE PRESIDENCY OF HONORABLE ANNE-MARIE SINCENNES P.J.P. ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor vs FRANCIS HUGH TOWIE Defendant ______________________________________________________________________ RECTIFIED JUDGMENT ______________________________________________________________________ [ 1 ] The court inadvertently omitted, in the conclusions of the judgment rendered on September 29, 2023, to indicate the amount of the fine to which the defendant was sentenced. [ 2 ]

Article 243 of the Code of Penal Procedure [1] allows the court to correct such an error. [ 3 ] THE TRIBUNAL RECTIFIES the judgment rendered on September 29, 2023, to provide, in its conclusions, the fine imposed on the defendant. [ 4 ] On May 22, 2022, a police officer, using a laser speedometer, captured the motorcycle driven by the defendant at a speed of 143 km/h in a zone where the permitted speed is 100 km/h [2] . [ 5 ] The defendant's version is that he was traveling at 121 km/h when he passed the police officer, a speed that he read on the GPS of his motorcycle, the figures being easier to read on this instrument than on the vehicle’s odometer.

ISSUE IN DISPUTE [ 6 ] Does the speed reading on the vehicle's GPS constitute sufficient contrary evidence to raise a doubt as to the proper functioning of the speedometer?

ANALYSIS [ 7 ] In the case of speeding detected using a speedometer, the prosecutor must demonstrate that the device used is reliable. [ 8 ] Thus, in the decision Ville de Baie-Comeau vs D'Astous [3] , the Court of Appeal retained the following criteria which, once established, constitute prima facie proof of the reliability of the device and, therefore, of the excessive speed: - the operator is qualified, - his device was tested before and after use, - the test demonstrates that the instrument is precise. [ 9 ] In this case, all the criteria are met. [ 10 ] This evidence is of course subject to the reasonable doubt that the defendant may raise. [ 11 ] The odometer is a universally recognized measuring device for establishing the speed of an automobile and it is not necessary to establish its proper functioning, just as it is not necessary to prove the accuracy of a watch by an expert when you want to prove an hour,

nor the accuracy of a ruler when you want to prove a measurement. This is what the Court of Appeal tells us in the Robitaille [4] decision. [ 12 ] Verification of the odometer at the time of the commission of the offense is evidence that could raise reasonable doubt about the reliability of the speedometer [5] . [ 13 ] What about the speed observed on a GPS? [ 14 ] As Justice White rightly mentions in a 2011 judgment [6] , confirmed by the Superior Court [7] the following year, a GPS (Global Positioning System) is first and foremost a geolocation system.

However, in the present case, the defendant does not use it to geolocate himself but to measure the speed of his vehicle.

This other use of a GPS would have required proof to establish that this device is reliable when used for this purpose, which was not done. [ 15 ] The speed reading on this device does not raise any doubt as to the reliability of the speedometer. [ 16 ] The Court of Appeal, in the Synnot [8] t decision, adds that the moment of reading the odometer must be legally relevant to be considered valid contrary evidence, that is to say that the verification of the speed must be made at the time of the commission of the offense. [ 17 ] However, in the present case, even if the court accepted the speed read on the GPS by the defendant, the latter read the speed at the moment he passed in front of the police officer 311.4 meters earlier than when the speed had been captured by the speedometer.

The time of the GPS reading by the defendant is not legally relevant in the sense understood by the Court of Appeal. [ 18 ] Considering the absence of contrary evidence allowing a reasonable doubt to be raised against the prima facie evidence presented by the prosecutor, the defendant must be found guilty of the offense.

FOR THESE REASONS, THE TRIBUNAL: [ 19 ] FINDS the defendant guilty of the offense charged; [ 20 ] CONDEMNS the defendant to pay a fine of 175 $ and costs; [ 21 ] GRANTS the defendant a period of three months to pay. __________________________________ ANNE-MARIE SINCENNES, PRESIDING JUSTICE OF THE PEACE M e Pierre-Luc Larouche Prosecutor's attorney Mr Francis Hugh Towie Defendant Hearing date : January 26, 2023