r v. JIMMY D. VAN GREUNEN, 2020 QCCQ 189

Director of Criminal and Penal Prosecutions c. Van Greunen 2020 QCCQ 189 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF AMOS "Criminal and penal division" No.: 605-61-054415-193 DATE: January 14, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE MARIE-FRANCE BEAULIEU, P.J.P. ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor v. JIMMY D.

VAN GREUNEN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] Four motorcycles were travelling along Route 117 in two parallel, staggered rows, keeping a safe distance between them. This outing was organized as part of their annual trip from Ontario to Mont-Tremblant. [ 2 ] Mr. Van Greunen, the defendant, was the second in line.

According the prosecution’s evidence, the defendant was stopped by a police officer for speeding at 160 km/h in a 90 km/h zone. [ 3 ] The defendant admits that he was driving at 120 km/h with his cruise control activated. He states that it was Mr. Arends, another motorcyclist and his witness at the hearing, who might have committed the offence. Mr. Arends apparently passed him at high speed to resume his position at the head of the convoy. Mr.

Arends was in charge of the itinerary and therefore for the GPS navigation system, hence his privileged position at the front of the group. [ 4 ] In brief, the motorcycle convoy passed a patrol car parked at the side of the road. That was when the motorcyclist who was first in line, Mr. Arends, quickly applied the brakes on his bike to reduce his own speed. Reacting to this unexpected manoeuvre, the defendant, who was second in line, also braked to deactivate his cruise control and avoid an incident. [ 5 ] That was how the defendant, despite himself, became the motorcyclist at the head of the group until Mr.

Arends resumed that position. Less than a kilometre further on, the group of motorcycles passed a second patrol car. That was the precise moment that Mr. Arends accelerated to over 160 km/h to regain his position at the front of the line of motorcycles. At trial, he testified to this effect. [ 6 ] Shortly after Mr. Arends’s manoeuvre, however, the defendant was the one who was stopped for excessive speeding. In his defence, he maintains that he was not driving at the speed recorded.

He admits that he was travelling at 120 km/h at most, since he reactivated his cruise control to the same speed as before the motorcycles had switched places. It was surely Mr. Arends who was recorded by the photo radar device as he accelerated to regain his position at the front. [ 7 ] The defendant argues in defence that there was [ translation ] “confusion” between the vehicles stopped.

He also believes that his evidence constitutes reliable and sufficiently precise evidence to the contrary to rebut the presumption of reliability of the photo radar device. [ 8 ] The prosecution argues that it benefits from the presumption of reliability. The evidence adduced in defence does not constitute evidence to the contrary to rebut the result obtained by the photo radar device. [ 9 ] The date of the offence is contested, as the police officer states that he stopped the defendant on September 12, not on September 13, 2018, unlike the defendant.

ISSUES [ 10 ] The Court must answer the following questions: 1. Do the facts adduced support the defence of confusion as to the identity of the driver, thereby allowing the defendant to be acquitted of the offence of speeding at 160 km/h but convicted of the offence of driving at 120 km/h?

2. Is the defence evidence sufficiently precise and relevant to be accepted as evidence to the contrary, thereby allowing the defendant to cast doubt on the speed recorded by the photo radar device, considering the presumption benefiting the prosecution as to the speed recorded by the photo radar device? [ 11 ] The Court answers these two questions in the affirmative, for the following reasons. ANALYSIS [ 12 ] According to Baie-Comeau (Ville de) c.

D’Astous , [1] the prosecution benefits from a prima facie case of speeding as recorded by the photo radar device, subject to the introduction of evidence to the contrary: [ translation ] In short, the demonstration that the operator is qualified, that his or her device was tested before and after being used, and that the test showed that the instrument is accurate establishes a prima facie case, subject, of course, to any reasonable doubt the accused may raise. [ 13 ] The identity of the driver is contested, and the defendant raises the defence of confusion when the police officer recorded the speed of the motorcycle.

The result obtained by the device is not questioned. Results are obtained after verification tests are performed before and after the speed is recorded by a qualified operator. [ 14 ] According to the case law, [2] this presumption can be rebutted by presenting reliable and relevant evidence to the contrary. [ 15 ] What is the prosecution’s evidence? • The date of the offence [ 16 ] While travelling south on Route 117, the police officer observed motorcycles that were travelling at high speeds.

He decided to stop the defendant’s motorcycle. [ 17 ] With respect to the date of the offence, the police officer states that he committed an error on the minutes of licence seizure, where he entered September 13 instead of September 12. The date on the statement of offence is September 12. [ 18 ] The defendant explains that he left Ontario (City of Barrie) on September 12 and spent the night in New Liskeard. September 13 is his granddaughter’s birthday. He has a very clear memory of being stopped.

His testimony appears credible. • The speeding offence [ 19 ] After observing a motorcycle travelling very quickly, the police officer stopped it. The speed recorded with the photo radar device was 160 km/h. The defendant’s licence was suspended and he was given a statement of offence. The use of the device and its results are not questioned. [ 20 ] A qualified operator made the usual inspections of the device before and after his shift as well as prior observations, certifying the result of 160 km/h that was obtained.

Therefore, the prosecution has made a sufficient prima facie case to fulfill the case-to-meet principle. Here is how a prima facie case is described in Municipalité de Saint-Guillaume c. Ruel : [3] [ translation ] [38] In this respect, in D’Astous , Gendreau J. [12 ] referred to the opinion stated by the Court of Appeal in Québec (Procureur général) c.

Robitaille [13 ] whereby [ translation ] “the speed established by a photo radar device established a sufficient prima facie case” [14 ] and such a case [ translation ] “that is believed and not rebutted suffices... and the Crown need not anticipate in its case the possible defences of the accused”. [15 ] [39] In R. c.

P. (M.B.) [16] Lamer C.J. defined a prima facie case in reference to the case-to-meet principle: Once ... the Crown discharges its obligation to present a prima facie case, such that it cannot be non-suited by a motion for a directed verdict of acquittal, the accused can legitimately be expected to respond, whether by testifying him or herself or calling other evidence, and failure to do so may serve as the basis for drawing adverse inferences. ....

In other words, once there is a "case to meet" which, if believed, would result in conviction, the accused can no longer remain a passive participant in the prosecutorial process and becomes — in a broad sense — compellable.

That is, the accused must answer the case against him or her, or face the possibility of conviction. [Emphasis in original.] [40] Thus, once the reliability requirements established in D’Astous are met, the measurement of the speed of an automobile recorded by a photo radar device makes a prima facie case, or in other words, a case to meet that will result in the defendant’s conviction should the defendant choose to remain passive and not answer the case presented by the prosecution. [ 21 ] The defendant denies that he drove at a speed of 160 km/h.

However, he admits that he travelled at 120 km/h at most, depending on the moment he looked at his speedometer. He set his cruise control back to the same speed as it had been set at the start, 120 km/h.

He never went faster than this. [ 22 ] The courts have recognized [4] that, in the absence of any other evidence from the accused that he or she was paying attention to his speed at the moment he was captured by the device and that his or her speed was below that established by the photo radar device, merely presenting as evidence the fact that he or she reset the cruise control does not constitute valid evidence to the contrary. It is still possible to accelerate, even when cruise control is activated, because of the configuration of the road, among other things.

[ 23 ] In its judgment, the Superior Court affirmed that the standard of proof to rebut a prima facie case is reasonable doubt. [5] The defendant does not bear a persuasive burden; it is sufficient that such a doubt be raised. Thus, the defendant may base his testimony on the act of checking his speedometer at the time the alleged facts took place.

His testimony must be precise to be characterized as relevant, and above all it must not present mere estimates. [ 24 ] The case to make regarding his speedometer check does not require that it be [ translation ] “perfectly synchronous” with the moment the speed was captured by the photo radar device. Moreover, the Court adopts as its own the following comment in Hale v.

Directeur des poursuites criminelles et pénales , [6] where it is stated that the speedometer check at the time of the commission of the offence should not be interpreted in a manner that is incompatible with reasonable doubt. [ 25 ] In this case, the defendant delivered sufficiently detailed testimony presenting evidence to the contrary that raises a reasonable doubt.

He established the date of the offence with sufficient detail, provided clear explanations when testifying on his itinerary and the speed on his speedometer when he passed the police officer, and unreservedly admitted that he had been speeding at 120 km/h. A defence witness, Mr.

Arends, admitted that he was the one who could have been speeding at 160 km/h, since he was trying to regain his place at the head of the convoy. • The defence of confusion and evidence to the contrary [ 26 ] Regarding the possible evidence of confusion between the two vehicles, the defence must raise objective and measurable facts or material elements. [7] [ 27 ] To be considered by the Court, the elements presented must be more than theoretical.

The defendant must describe the immediate environment surrounding the vehicle that could have affected the recording by the photo radar device operated by the police officer. The Court should expect to be told the make, model, size, colour, and characteristics of the vehicles involved. [ 28 ] The defendant must present a case to meet, particularly regarding the speed observed on his speedometer at the relevant times. [ 29 ] In this case, the witness Mr. Arends appeared and admitted that he was the person who was recorded by the device when he was attempting to regain his spot at the head of the motorcycle convoy.

The corroborated defence evidence is precise and complete. In the view of the Court, it is not tainted by any contradiction or unlikelihood. [ 30 ] The defendant’s submissions are complete and go far beyond the threshold of mere hypothesis. He refers precisely to his speed, which was at most 120 km/h, the moment he checked his speedometer, which was when he passed the police officer and when he reactivated his cruise control, and the passing manoeuvre of his companion motorcyclist, who accelerated at the same time to regain his spot at the head of the motorcycle convoy.

The Court believes the defendant. [ 31 ] All of these facts raise a reasonable doubt in the mind of the Court. [ 32 ] As a result, because this constitutes evidence to the contrary that tends to raise such a doubt, the Court acquits the defendant of having driven at the speed of 160 km/h. However, because of his admission and the facts, the Court finds him guilty of driving at a speed of 120 km/h in a 90 km/h zone.

FOR THESE REASONS, THE COURT: [ 33 ] ACQUITS the defendant of driving his motorcycle at 160 km/h; [ 34 ] CONVICTS the defendant of driving 120 km/h in a 90 km/h zone, in contravention of s. 328 of the Highway Safety Code ; [ 35 ] ORDERS the defendant to pay a fine of $105; [ 36 ] WITH COSTS on the statement of offence alone; [ 37 ] GRANTS him 90 days to make payment. __________________________________ MARIE-FRANCE BEAULIEU, P.J.P. Mtre Isabelle Godon Office of the D.C.P.P.

Counsel for the prosecution Mtre Anthony Di Staulo Giarratano Lamoureux, Cabinet d’Avocats Counsel for the defendant Date of hearing: October 29, 2019