Her Majesty the Queen - v. –, 2014 SKPC 084

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 084 Date: April 17, 2014 Ticket No: 7892112 Location: Pierceland Between: Her Majesty the Queen - and – Jim Dallyn Appearing: Gregory Piper For the Crown Jim Dallyn On His Own Behalf Judgment M. F. Martinez , J [ 1 ] Jim Dallyn is charged with the offence of driving faster than 60 kilometres per hour when passing highway workers or occupied highway equipment within a work zone. The offence is alleged to have occurred on September 5, 2013, on Highway 55 near Peerless, Saskatchewan. [ 2 ] Subsection 203(1) of The Traffic Safety Act governs the offence: Speed limits when passing highway workers 203

(1) No person shall drive a vehicle on a highway at a speed greater than 60 kilometres per hour when passing:

(

a) a highway worker or flag person; (

b) any highway equipment occupied by a highway worker, whose presence on the highway is marked in the manner determined in the regulations made by the board; or (

c) any highway equipment on a highway that has its ministry issued warning lights in operation, whether it is in motion or not. [ 3 ] Jim Dallyn is not charged as the driver of the vehicle but as its registered owner.

Section 273 of The Traffic Safety Act makes the registered owner liable for the driver’s misconduct when the vehicle is driven by anyone who has the owner’s actual or implied consent to do so. [ 4 ] Recent legislative amendments allow the Crown to prosecute a contravention of subsection 203(1) of the Act without calling any witnesses ( The Traffic Safety Act , S.S. 2004, c. T-18.1,

section 259.1, and The Traffic Safety (Speed Monitoring) Regulations , c.

T- 18.1 Reg 10, sections 4 and 5). [ 5 ] Consequently, the Crown’s evidence consisted of the following documents: 1. a photograph of the offending vehicle taken by a speed monitoring camera showing the date and time the photograph was taken and the speed of the vehicle when the photograph was taken, which in this case was 84 kms/hr, 2. the affidavit of Bradley George Christensen, the person who tested, deployed, and operated the speed monitoring device, 3. an SGI Motor Vehicle Division search certifying that Jim Dallyn was the registered owner of the vehicle on the date of the alleged offence, and 4. affidavits of service confirming service of the

Summary Offence Notice, the photograph, Mr. Christensen’s affidavit, and the SGI Motor Vehicle Division certified search. [ 6 ] The Act allows the accused to ask for an order requiring Mr. Christensen to attend for the purpose of cross-examination, but Mr. Dallyn did not do so. [ 7 ] The accused was the only witness for the defence. [ 8 ] He testified that on September 5, 2013, he was driving and that he did not speed past any highway workers or occupied highway equipment in the work zone. He remembers following a pilot truck with its warning lights operating.

When it turned around on the highway and returned in the direction it had come, Mr. Dallyn said that he sped up as there weren’t any workers or equipment ahead of him. He believes that this is when the speed monitoring camera must have photographed his vehicle. [ 9 ] I found Mr. Dallyn to be credible. [ 10 ] The Crown submits that the offence under subsection 203(1) of The Traffice Safety Act is a strict liability offence and that its documentary evidence proves every element of the offence. The only aspect of the Crown’s case that Mr.

Dallyn disputes is that he passed highway workers or occupied highway equipment when he was travelling faster than 60 kilometres per hour. [ 11 ] No workers or highway equipment can be seen in the photograph of the Dallyn vehicle. Bradley George Christensen’s observations of the vehicle appear in paragraphs 7 and 8 of his affidavit:

“7. At 16:32 I observed a vehicle that appeared to be travelling above the posted speed limit of 60 kilometers [sic] an hour. The speed monitoring device indicated the motor vehicle was travelling at 84 kilometers [sic] an hour and at the same time it captured a digital image and confirmed it was the same vehicle that I had directed the laser beam at and accepted the image with the data as being accurate. The data embedded in the digital image included the event number #0017 . 8. Also, at the time I directed the laser at this motor vehicle there was worker activity in the speed monitored zone as indicated by my placement of an “X” beside the relevant circumstance(s):

a) one or more highway workers or flag persons were present X

b) There were one or more pieces of highway equipment occupied by one of [sic] more highway workers present X

c) There were one or more pieces of highway equipment on the highway that had their ministry-issued warning lights in operation present ___” [ 12 ] Mr. Dallyn is not charged with speeding in a marked construction area with workers and equipment in the area. The offence is driving faster than 60 kilometres per hour when passing highway workers (whether or not they are in a marked construction zone), or when passing occupied highway equipment in a marked construction area, or when passing highway equipment actually on the highway and with its warning lights operating.

None of the Crown’s documents prove that the Dallyn vehicle did anything of the kind. [ 13 ] In paragraph 7 of his affidavit, Mr. Christensen says that he saw the Dallyn vehicle and that it appeared to be speeding. In paragraph 8 of his affidavit, he says that there were highway workers and occupied highway equipment in the speed monitored zone.

Nowhere does he say that: 1. he observed the Dallyn vehicle apparently travelling above the speed limit when it passed highway workers or highway equipment and that he recorded the vehicle’s speed immediately after it passed the workers or equipment, or 2. the Dallyn vehicle actually was passing highway workers or occupied highway equipment when the speed monitoring device recorded its speed. [ 14 ] For these reasons, I find Jim Dallyn not guilty. ____________________________ M.F. Martinez, J