R. v. Zacharias, 2016 ONCJ 458

CITATION: R. v. Zacharias , 2016 ONCJ 458 DATE : 2016 -07-19 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — SANTHOSH ZACHARIAS Appellant Before Justice J. Ritchie Appeal Heard on July 19, 2016 Decision on Appeal under the Provincial Offences Act Ms. K. Barybina ............................................................................ prosecutor for the City of Toronto Mr. G. Shapiro ..................................................................................... agent for Santhosh Zacharias RITCHIE J.: [ 1 ] Santhosh Zacharias is appealing a conviction entered by Her Worship J.

Opalinski, Justice of the Peace, on August 18, 2015. The conviction followed a trial on a charge of speeding 62 kilometres per hour in a 40 kilometre zone, contrary to

section 128 of the Highway Traffic Act. [ 2 ] The grounds of appeal relate to the alleged failure of the prosecution to disclose information respecting the testing of the laser speed-measuring device used by the police officer who issued the traffic ticket. The appellant had also objected at trial to the police officer testifying about testing the device, because there was no mention of testing in his notes.

It is submitted that the appellant did not, as a result, receive a fair trial and that the administration of justice was brought into disrepute. [ 3 ] I wish to thank representatives of both the appellant and the respondent for their factums and for the instructive case law that they provided. I have carefully considered all of the submissions on this appeal. [ 4 ] On the disclosure issue, the prosecution disclosed the police officer’s notes (two pages) and complied with some special disclosure requests of the defence.

However, there were two letters from the defence requesting: “if this is a speeding offence, the testing times of this device before and after the subject enforcement”. The prosecution did not respond to that request. [ 5 ] Prior to the trial on May 8, 2015, the prosecution and the defence discussed the testing of the device outside of court. The prosecution apparently disclosed the fact that the police officer had tested the device, but testing times were not provided.

When the trial commenced, the defence stated that “we are ready to proceed to trial”. [ 6 ] If the defence had been dissatisfied with the disclosure, it should have been raised the issue on a pre-trial motion. If the lateness of the disclosure created a preparation problem for the defence, they should have requested an adjournment. However, the defence was ready to proceed to trial, and they so advised the court. [ 7 ] When the police officer testified in-chief, he described the efficacy of the laser device as follows: “I’m a trained and qualified laser speed-measuring device operator.

This device was tested in accordance with manufacturer’s specifications and my training, both at the beginning of my shift and at the end of my shift, and it was found to be in good working order at all times.” On re- examination, the officer provided further information: “my shift began at noon and ended around 9:00 p.m.” [ 8 ] The defence raised an objection when the police officer began to testify about testing the device.

The objection was based on the fact that the officer had made no record in his note-book about testing the device (objection was also made to the non- disclosure of testing times, but I have dealt with that aspect above). [ 9 ] It is trite law that contemporaneous notes may be used by a witness as an aide memoire when testifying in court. However, there is no requirement that a police officers’ notes must be complete or written in a particular way or comprehensively set out every detail.

There may be circumstances where the omission of some crucial fact from the notes could cast doubt on the reliability or credibility of a police officer’s testimony. But that is not this case. Two of my colleagues were apparently faced with issues of that nature in the case law provided to me by the appellant, but the cases were (with one exception) criminal matters, and in any event the facts of the cases were different. In the present case, the officer testified from memory, which he is entitled to do, and the learned Justice of the Peace accepted that evidence.

[ 10 ] It is important to note that the defence had full opportunity to cross-examine the police officer regarding the testing of the device, but only one question was asked. At page 30 of the transcript, the representative for the defence asked “what test did you perform on this device to ensure that it was working?” The officer responded by describing the testing procedure in detail. The defence asked no further questions.

The Justice of the Peace noted in her decision that there was “little cross-examination” on this issue and that there was no defence evidence that suggested the device “was not working properly and tested properly”. [ 11 ] In my opinion, there is every indication that the appellant received a fair trial, and no basis at all for concluding that he did not. There was no issue raised under the Charter of Rights and Freedoms, so the section 24(2) analysis (with respect to whether the administration of justice is brought into disrepute) does not apply.

I cannot see that the defence was prejudiced in any way by the manner in which events unfolded. [ 12 ] I see no error on the part of the learned Justice of the Peace. Her statement of the issue, her review of the evidence and the law, and her findings and conclusions are unassailable. She gave a careful, reasoned and comprehensive judgment. The defendant received a fair trial and was fully heard. [ 13 ] As a result, the appeal is dismissed. Released: July 19, 2016 Signed: “Justice J. Ritchie”