R. v. Webb Date:, 2016 BCPC 294

Citation: R. v. Webb Date: 20160830 2016 BCPC 294 File No: 8320848-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER DALE WEBB REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE JOSEPH-TIWARY Appearing for the Crown: Officer Stables Counsel for the Defendant: M. Thain Place of Hearing: Port Coquitlam , B.C. Date of Hearing: May 9, 2016 Date of Judgment: August 30, 2016

Jurisdiction Issue [1] Mr. Thain, counsel and agent for the disputant asserts that as a preliminary matter, there being no evidence from Crown thatthe alleged infraction was committed within the Court’s jurisdiction, that is, within the Province of British Columbia, his client isentitled to a dismissal of the charge herein.

This defense submission was made at the end of the Crown case and after defense counselhad opted not to call any evidence. [2] In cross-examining Officer Stables, counsel did not challenge or even dispute that the alleged offence or events described bythe officer occurred at a location other than as testified in Court, or put to the officer that the described location was not within BC. [3] Respectfully, the argument before the Court is a technical one; however, defense is within its rights to raise it. [4] The defense had by then attorned to the jurisdiction of the Court.

The defense position could not be that the Court lackedjurisdiction to hear the case before it. A lack of jurisdiction to hear a matter has to be raised by way of a preliminary objection pursuantto

Section 100 of the Offence Act prior to commencement of the trial. What is being raised is the failure by the officer to statespecifically in his testimony that the described location where the offence was allegedly committed is within the Province of BC. [5] The violation ticket for excessive speed identifies the location as Westbound, Highway 1/192, Surrey, and Province of BC. There is evidence before the Court that it was served on Webb after his identity was confirmed with the use of a BC driver’s licenceproduced to the officer by Webb. Counsel additionally confirmed on record that identity was not in issue.

The served ticket wasapparently disputed having regard to the provisions of the Offence Act requiring a Notice of hearing to be sent to the disputing driver. Acopy of that Notice of hearing is on the Court file before me, and on the stipulated date and time indicated on that Notice; Mr. Thainappeared in Court both as counsel and agent for the disputant, Webb. [6] In Regina v. Porter

(1961) NSJ N1961 CanLII 514 (NS SC), 130 CCC 116 defense counsel raised a similar argument thatthere being no evidence that the offence occurred in the town of Dartmouth, there was no evidence before the Court that it took place inNova Scotia and ought to be quashed. [7] Relying on Evidence by Cross, the Court ruled judicial notice may be taken of a matter that is so notorious as not to be thesubject of dispute among reasonable men or so capable of immediate accuracy by resort to readily accessible sources of indisputableaccuracy.

Despite no evidence of it having occurred in Dartmouth, the occurrence of the accident 20 minutes after the driver left herhome in Dartmouth led the Court to find that it occurred at or near Dartmouth as charged in the information, and in the province of NovaScotia, taking into consideration that they could not in 20 minutes have left the province. [8] The Court in arriving at the decision cited several authorities: 1. R. v.

Irwin (1919) 27 B.C.R., where Macdonald C.J.A (at pp 229-230) held it was open to the Court to find that Princeton was inthe County of Yale saying: “I can scarcely imagine persons acting for Crown ever thinking of raising the question of whether Princeton was in the County of Yale ornot. They would just as likely to ask that question of a witness as counsel might ask an old grey-haired man whether he was 21 years ofage.” 2. Martin J.A. for the British Columbia Court of Appeal in R. v. Zarelli & Newell (1939) (BC CA), 55 Can.

C.C.314 found that ‘it is a matter of judicial notice, combined with the said direct evidence, impossible to avoid this conclusion becauseColdstream is, unquestionably, a place ‘sufficiently notorious’ for its situation to be taken judicial notice of by, at least, the Judge inwhose county it is situate within the province.” (my emphasis). 3. R. v. ex rel. White v Fudell (ON SC), 116 Can C.C 67, where the Ontario High Court held that judicial noticemay be taken of “ territorial and administrative divisions’ into counties and all matters which are so notorious that evidence of theirexistence is deemed unnecessary.

The Court went on to say that it is surely notorious to persons in Southern Ontario that Highway No22 is the highway that connects Sarnia with London and that Hickory Corners is located on Highway 22 and that the presidingMagistrate who had jurisdiction in the Count of Middlesex could take cognizance of that; quoting extensively from the Zarelli case. [9] Doull J in Porter referred to the provisions of the Criminal Code akin to Section 100(4) (

b) of the Offence Act saying anyvariation as to place is immaterial if it arose within the territorial jurisdiction of the Court, further finding that a court could use commonsense in interpreting evidence and take notice of the extent of the province. He found the defense suggestion astonishing that an accidentoccurring 20 mins after the driver left her home in Dartmouth would be outside the Magistrate’s territorial jurisdiction.

In paragraph 26the Judge said “I do not think there should be much difficulty in a judge taking judicial notice of local places”. [10] Ilsley C.J. in the Porter case clarified in para 27: “This, of course, does not mean that Nova Scotia Courts take judicial notice of the extent of the boundaries of England, but it does meanthat Nova Scotia Courts take notice of the extent of Nova Scotia, It would be a bit ridiculous for the Magistrate to ask the ProvincialSecretary, or Secretary of State for Canada, whether or not Dartmouth was in Nova Scotia”. [11] Having regard to the officer’s testimony of having observed the disputant vehicle’s momentum whilst he was travelling onHighway 1 at the Surrey/Langley border, with the disputant on the 192 on-ramp of Highway 1 approaching to merge westbound, I am

taking judicial notice that both cities border each other and are within the province of BC. Both cities are served by Highway 1 andsituate along the highway between West Vancouver, BC to the west and Abbotsford, BC to the east. The 2 latter cities were identifiedby the officer as demarcating the area where he conducts enforcement as a member of the Lower Mainland Traffic Services stationedwith the Portman Highway patrol. It cannot but be notorious to persons in the Lower Mainland of BC that the location described is inBritish Columbia.

Officer Stables testified he stopped the vehicle on the Highway at the location after its speed was estimated and aradar reading was taken and served the disputant with the violation ticket before me. The Court was shown a video of that stop on thehighway. [12] Both common sense and logical thinking dictates that to have required Crown to prove a fact (quote) “obviously in theknowledge” of the presiding Justice, the officer and the defense (quote) “was unnecessary”. Mordenza JA speaking for the Court ofAppeal in R. v. Bednarz (1961) 130 CCC 1777 and citing Kelly J in the White v.

Fudell decision ruled it “unnecessary” and opined thatany other decision upon the point of law would invite the reproach that justice is being administered in disregard of the plain realities ofthe situation. Lord Sumner in Commonwealth Shipping Representative v. Peninsular & Oriental Branch Service {1923} Av 191 atpage 211 pointed out that to require a judge to affect a cloistered aloofness from facts and to insist on having proof on oath of matters ofcommon knowledge “is a rule that may become pedantic and futile”. [13] Also helpful is the decision in Regina v.

Potts (1982) 35 O.R., where the applicability of Regulations to a driveway was raised,with the defense position being there was no evidence that the said Regulations applied: “it was not until after the taking of evidence had been concluded, without any evidence being given by the respondent that the latter’scounsel first raised the point that no evidence had been adduced by the Crown as to the status of the driveway. Counsel……….waswithin his rights…….but even then the driveway’s status……was not disputed by him.

In my opinion its status was not disputed, asclearly as it could have been, precisely because it could only have been obvious to all who took

part in the trial what the outcome of thedispute would have been…………………I cannot accept that the Justice erred.” [14] An application for leave to appeal the decision of the Court of Appeal therein was dismissed by the Supreme Court of Canada. [15] It is my finding that there is sufficient evidence allowing the Court to take judicial notice that the location described is withinthe province of BC. The Port Coquitlam Courthouse, where this matter was heard hears all disputed traffic violation tickets issued onHighway 1, BC by the Portman Division and Judicial Justices in BC have jurisdiction all over BC.

The Supreme Court of Saskatchewanin Collision v. Kokatt, (SK KB), 24 Can.C.C. 151 made a similar finding as in Irwin, Zarelli and Porter cited beforethat a Court could take notice that a town or other known place was within the judicial district. In taking judicial notice here the Courthas merely taken notice of the extent of BC. Excessive Speeding Charge [16] The defense argues that there is reliance by the prosecution on radar evidence alone. Besides the radar reading of thedisputant’s speed, the officer also relied on a radar reading of the police cruiser to make his visual estimation of the disputant vehicle.

He argues that there is no evidence of the testing of the device, and coupled with the omission in the Crown evidence of the serialnumbers of the particular device used, reliance by Crown on the radar and any reading from it is rendered unreliable raising a reasonabledoubt as to its accuracy and the Crown case. [17] In R. v. Lising

(2000) BCSC 1003, the British Columbia Supreme Court noted that a speeding conviction based on radarevidence alone may be upheld, relying on R. v. Grainger (1958) 120 CCC 120, an Ontario Court Of Appeal decision [18] Paragraphs 23 and 24 of the decision referenced R. v. Khadikin (1999) and Horsley & Foster, Manual of Motor Vehicle: “ ‘readings from a stop watch, a speedometer, or a radar instrument are prima facie evidence only’ ( R v Jacobs, an unreported decisionfrom Alberta) and subject to rebuttal.

This implies that if not rebutted the primary evidence prevails.” “A conviction may be entered on a charge of speeding on the evidence of data obtained from a radar speedometer, if evidence is adducedthat the equipment was in good working order and was being properly used.” [19] The case law is clear that corroborative evidence is not necessary to find a conviction where the court is satisfied that it wasused by a trained officer who had tested it to ensure it was on good working order.

In a particular case, corroborative evidence may behelpful and each case depends on the particular facts before the Court. [20] Officer Stables testified that a reading of 157km/hr. was obtained as the Lamborghini travelled down the 192 onramp towardsHighway 1. He said he was a qualified operator both in direct evidence and under cross–examination. The officer was firm that theradar was tested and found to be operating in accordance with the manufacturer’s specifications.

He clarified that there is heavy relianceon the device and that at the start of his shift for the day, he ensures that all the police equipment is checked to ensure that it is working. He told the court that the testing was carried out by him as the driver was not a trained operator. [21] In R. v. Potts

(2006) BCSC 592, where the defence appealed a speeding conviction, the Supreme Court of BC agreed withCrown submission that an “officer’s usual practice is sufficient to establish a prima facie case: “I agree with that submission, namely that evidence of a police officer’s general practice is sufficient to establish a prima facie case ofthe existence of a highway sign.

To expect a police officer to remember the details of each incident involving the issuance of a trafficviolation notice would be an impossible burden.” [22] On the evidence heard, Officer Stables was specific as to his usual practice that the testing could only be done by a trainedofficer, he was the trained officer and he checks all equipment including the radar at the start of his shift before the radar equipped

vehicle is taken out for the day onto the road. He further testified that any time the equipment is not working, that vehicle is not taken out for the day as there is a heavy reliance on the unit. [ 23 ] Besides testifying to qualifications and testing which are pre requites to reliance on radar, the officer testified to obtained a reading of 157km/hr. as the vehicle travelled towards Highway 1. The video evidence presented shows there was ample opportunity for the officer to have gathered evidence of and observed the momentum of the target vehicle as it made its way on the ramp to merge.

There was no evidence to the contrary of vehicle speed. I find the radar reading reliable. The officer also testified that the disputant drove a distinctive vehicle, a matte black Lamborghini Aventador.

It had the high rev or rpm of a sports car which could be heard by the officer even before the vehicle entered the officer’s visual field. [ 24 ] With regard to Officer Stables visual estimate of the target at 150km.hr, he testified that he self-checks his ability on an annual basis, besides utilizing those skills on a daily basis while engaged in his enforcement duties on the highway and has maintained his proficiencies; his margin of error being +/-5km/hr.

The evidence shows that besides policing since 2008, he had prior to the issuance of the ticket before me, for some in excess of 2 years been regularly patrolling Highway 1 between West Vancouver to Abbotsford and has had the opportunity of observing vehicles at highway speeds on Highway 1 regularly. [ 25 ] I cannot find that any reasonable doubt is raised as to the speed estimation of the target speed by the officer’s reliance on a radar reading of the cruiser speed in making that estimation.

Not only had the radar reading of the cruiser speed been compared to that of the speedometer in the cruiser earlier to ensure they were consistent, there is also no logical reason why the tested radar would be unable to provide the cruiser speed accurately. [ 26 ] I am unable to find that any reasonable doubt is raised as to the radar reading obtained of the target or as to the officer’s speed estimation abilities. [ 27 ] The evidence before the Court is that the last posted speed for vehicles bound towards the ramp is 60km/hr., and that speed limits on the highway are posted 100km/hr.

This was neither challenged by the defense nor was any reasonable doubt raised as to the applicable speeds. Officer testified that as the target was traveling on the on ramp merging onto the highway at the location and with the highway speed limit there being a 100km/hr., he issued the ticket for excessive at the lower tier. [ 28 ] On the evidence before the Court, I find that the disputant was doing 157 and was in excess of 41km/hr. of both the highway 1 as well as the on ramp speed applicable at the location.

I am satisfied that there is proof beyond a reasonable doubt and defense failed to raise any reasonable doubt to the excessive speed charge. _____________________________ Susheela Joseph-Tiwary, JJ