r v. BENTLEY MIANSCUM, 2021 QCCQ 9271

Director of Criminal and Penal Prosecutions c. Mianscum 2021 QCCQ 9271 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF SENNETERRE Criminal and Penal Division No: 625-61-011416-217 DATE: July 12, 2021 ______________________________________________________________________ BY THE HONOURABLE MARIE-FRANCE BEAULIEU, J.P.M. ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor v.

BENTLEY MIANSCUM Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ NATURE OF THE CASE [ 1 ] The defendant is charged with driving a road vehicle over the maximum speed limit, that is, 116 km/h in a zone of 90 km/h, contrary to

section 328 Highway Safety Code . [1] [ 2 ] According to the prosecution’s evidence, on July 17th, 2020, at about 9:46 a.m., the defendant was driving a pick-up truck at kilometer 128, near Lebel-sur-Quévillon. [ 3 ] A police officer was operating a radar device, which recorded the speed of the defendant’s vehicle at 116 km/h in a zone of 90 km/h. He decided to intercept the defendant’s vehicle clocked by the device. Moreover, the officer kept visual contact with the vehicle up until he stopped the driver. [ 4 ] The police officer has been qualified to operate the radar device since April 2018.

He tested the device before and after its use and it was in good order. [ 5 ] The defendant denies driving at the registered speed. He mentioned that his cruise control was set at a speed of 101 km / h. [ 6 ] The police officer refused to show him the result obtained by the radar. ISSUES IN DISPUTE [ 7 ] There are two questions in dispute given the contradictory evidence. a. Has the prosecution proved each essential element of the offence under

section 328 of the Highway safety code ? b. Does the defendant’s version raise a reasonable doubt? ANALYSIS [ 8 ] The burden of the evidence rests on the prosecution, who has to prove the commission of the infraction beyond a reasonable doubt.

Besides the fact that it has to prove that the defendant is the driver of the vehicle and that there is a speed limit sign of 90 km/h, the prosecution must also establish the speed at which the defendant is driving. [ 9 ] As already established in D'Astous and Delangis [2] decision, the speed detector devices used by police officers are recognized and universally accepted by the Courts. [ 10 ] However, this doesn't mean that the speed measured by those devices is necessarily reliable. Consequently, the prosecution needs to establish, in each case, the accuracy of the speed that was measured.

The judge must be convinced that the speed detector device used by the police officer was in good working order and that it was accurate and reliable at the moment it was used. [ 11 ] In doing so, the prosecution must establish that : • The police officer using the speed detector device is qualified to do so; • Specific tests were made before and after the use of the device; • The tests confirmed that the speed detector device was in good working order;

[12] Once these three elements have been proven, there is a presumption that the speed detector device was in good functioning stateand thus that the speed measured by the device is accurate and reliable. [13] According to the case law[3], this presumption can be rebutted by presenting reliable and relevant evidence to the contrary. [14] To do so, the defendant must present contrary evidence which needs only to raise a reasonable doubt. [15] Also, the Highway Safety Code does not require the police officer to show the result obtained by the radar to the driver, even ifthe defendant asks to see it.

WHAT IS CONTRARY EVIDENCE? [16] In Granger, the Superior Court teaches us that contrary evidence is one that tends to demonstrate that the speed is not the oneindicated by the speed detector device at that precise moment. [17] To be relevant, credible and reliable, the version of the defendant needs to be precise. The Courts have already established that asimple estimation of the speed is insufficient. Contrary evidence must be sufficiently detailed and must rely on accurate facts and notonly on hypotheses or simple probabilities (arrêt Baie-Comeau c.

Paquette, C.A.). [18] The verification of the speedometer by the defendant does not require that it be “perfectly synchronised” with the moment thespeed was measured by the photo radar device. [19] Moreover, the Court adopts as its own the following comment in Hale v. Directeur des poursuites criminelles et pénales[4],where it is stated that the verification of the speedometer at the time of the commission of the offence should not be interpreted in amanner that is incompatible with reasonable doubt.[5] [20] Evidence to the contrary adduced by the defendant must tend to show that the measured speed is inaccurate.

In Roblin c.DPCP[6], the Superior Court describes that evidence: […] must be relevant and precise. However, the accused has no burden of persuasion and is not obliged to do more than raise areasonable doubt. The burden is always on the prosecution to prove beyond a reasonable doubt that the defendant committed theprohibited act (Granger v. Montréal (Ville de), 2011 QCCS 6561; Synnott v. Directeur des poursuites criminelles et pénales, 2012QCCA 468; Baie-Comeau (Ville de) v. D'Astous, (QC CA), [1992] RJQ 1483 (CAQ); Joliette (Villede) v. Delangis, [1999] RJQ 2836 (CAQ); Québec (Procureur général) c.

Paquette, (CAQ); Hale v. Directeur despoursuites criminelles et pénales, 2018 QCCS 2186). WHAT IS A REASONABLE DOUBT? [21] A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is adoubt based on reason and common sense which must logically be derived from the evidence or absence of evidence.[7] THE APPLICATION OF THE LAW TO THE CASE AT HAND • PROSECUTION’S EVIDENCE [22] At trial, the prosecution filed the statement of offence as documentary evidence pursuant to

Section 62 of the Code of PenalProcedure. [23] The statement of offence and the infraction report establish the following essential elements. • The defendant was the driver of the vehicle on the date of the infraction; July 17, 2020 (Identification was confirmed with hisdriver license); • The defendant was driving in a 90 km/h zone; • The police officer using the speed detector device was qualified to do so; • The police officer was operating a radar (Doppler Kustom, Eagle model, #série E18940); • Appropriate tests were made before and after its use; • Tests confirmed that the speed detector device was in good working order; • The measured speed was 116 km/h. [24] Once those elements are established, prosecution has discharged its burden.

THE DEFENSE [25] Mr. Mianscums testify in his defense. [26] He admits the following elements: • He was the driver of the vehicle;

• The signage indicated a zone of 90 km/h limit; • He used a cruise control device set at 101 km/h; • He was arrested twice over a distance of 98 kilometers. The first time was at 8:48 and the second at 9:46; • Essentially, he explains the impossibility of having been caught by the radar at a speed of 116 km/h when only an hour had elapsed over a 98 km distance between the first and second police interception.

Which confirms that he was not traveling at a speed of 116 km/h, but rather at 101 km/h according to his cruise control; [ 27 ] To sum up, the defendant denies having driven at the speed alleged by the police officer. He claims that he used the cruise control .

USING THE CRUISE CONTROL [ 28 ] In many cases, the use of a ‘’cruise control’’ function is not in itself sufficient evidence. [8] [ 29 ] Even though the cruise control was in use, it is always possible for the driver to accelerate. [ 30 ] In the absence of the defendant’s testimony to the effect that he looked at his speedometer at the moment when his car was clocked by the speed detector device, his speed then becomes the equivalent of a simple estimation.

This means that the defendant suggests to the judge to draw an inference based on his cruise control, which is not sufficient to be considered as contrary evidence [9] . [ 31 ] The mere assertion of not driving at a given speed to contradict the radar evidence is not sufficient to contradict the radar evidence. Firstly, the defendant must explain to the Court how he was able to determine the speed at which he was driving.

Secondly, he has to establish the time at which he looked at his odometer. [ 32 ] In the case at hand, the defendant’s testimony on the speed that he was driving at the time of the offence is imprecise, unreliable, and insufficient to constitute valid evidence to the contrary, thus disproving the speed recorded by the radar device. [ 33 ] The mere use of the cruise control function, does not guarantee the speed at which a defendant is driving on the road.

Without further clarification on the speed observed on the odometer when he meets the police officer using a radar device, the Court cannot infer that the set cruise control speed was the speed at which the defendant was in fact driving at. CONCLUSION [ 34 ] The Court considers that the defendant’s version does not constitute contrary evidence likely to raise a reasonable doubt. [ 35 ] The evidence presented by Mr. Mianscum was lacking details and was insufficient to rebut the presumption.

The prosecution has proved beyond reasonable doubt that the defendant committed the offense. [ 36 ] The Court finds the defendant guilty of the offense as charged. FOR THESE REASONS, THE COURT [ 37 ] FINDS the defendant guilty of driving at a speed of 116 km/h in a zone of 90 km/h; [ 38 ] CONDEMNS the defendant to pay a fine of $90, plus costs limited to those written on the statement as well as the statutory contribution; [ 39 ] GRANTS the defendant a delay of three (3) months to pay the fine and the costs, without any other submissions. __________________________________ MARIE-FRANCE BEAULIEU, J.P.M.

Mtre Raphaël Garneau Bédard Counsel for the Prosecution Bentley Mianscum Self-represented Date of the hearing: May 27, 2021