2023 QCCQ 8873, 2023 QCCQ 8873

Director of Criminal and Penal Prosecutions c. Shaw 2023 QCCQ 8873 COUR OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF KAMOURASKA LOCALITY OF RIVIÈRE-DU-LOUP « Criminal and Penal Division » N° : 250-61-062096-220 DATE : October 3 rd , 2023 ______________________________________________________________________ PRESIDING : HONOURABLE ANNE-MARIE SINCENNES, P.J.P. ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor c.

JOHN SHAW Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The defendant is accused of driving at 100 km/h in a construction zone where the permitted speed is 60 km/h. [ 2 ] On March 24, 2022, the defendant is driving on Highway 85 towards New Brunswick. The highway has two lanes in the same direction and the authorized speed is 100 km/h. [ 3 ] At a certain point, corresponding to the approach to a construction zone, the two lanes converge to form one, followed by a large curve to the left.

Panels are covered with black boards. [ 4 ] 500 meters from the defendant, pick-up trucks are lined up along the road on the right. Having no other way to get away from the vehicles, the defendant takes his foot off the accelerator without braking. Fifty feet from the vehicles, the defendant sees a patrol car among the pick-ups, its flashing lights on. He looks at his odometer and sees that he is going 60 km/h.

ISSUES IN DISPUTE [ 5 ] Should the defense of vehicle confusion be upheld? [ 6 ] Does the defendant's version raise any doubt as to the speed at which he was driving when the police officer detected his speed? [ 7 ] What about the panels covered with black boards?

ANALYSIS [ 8 ] Should the defense of vehicle confusion be upheld? [ 9 ] This defense consists of raising doubt as to the vehicle captured by the police officer's speedometer. [ 10 ] Nothing in the defendant's testimony suggests that another vehicle similar to his, a white Ford Econoline, was present at the time of the facts and could have created confusion [1] . [ 11 ] His lawyer argues that these vehicles are present in large numbers on the roads.

This simple allegation is insufficient to support a vehicle confusion defense. [ 12 ] Does the defendant's version raise any doubt as to the speed at which he was driving when the police officer detected his speed? [ 13 ] In Baie-Comeau (Ville de) vs D'Astous [2] , the Court of Appeal teaches us that in matters of excessive speed observed using a speedometer device, the demonstration that the operator is qualified, that his device was tested before and after its use and that the test demonstrates that the instrument is precise, establishes a prima facie case, subject, of course, to the reasonable doubt that the accused may raise.

[ 14 ] In the present case, all these criteria are met. There is therefore prima facie proof of the speed at which the defendant's vehicle is traveling, 100 km/h. [ 15 ] According to the defendant, 500 meters from the police officer, he took his foot off the accelerator without braking. According to him, at this point on the road he is traveling at 100 km/h. Thus, 150 meters from the police officer, the moment when the latter detects the speed of the defendant using the speedometer, he cannot still drive at 100 km/h since he has been slowing down since 350 meters. [ 16 ] In Granger v.

Montreal (Ville de) [3] , the Superior Court recalls the principles applying to a case where the speed is established by a speedometer: 1. The standard of proof necessary to rebut the presumption set out in D'Astous is reasonable doubt; 2. The presumption constitutes only prima facie evidence; 3. The defendant has no burden of persuasion; 4.

Evidence which tends to demonstrate that the speed measured is not that which existed at the time of the offense is likely to raise a reasonable doubt as to the guilt of the defendant. [ 17 ] The Superior Court adds that the defendant’s testimony may be based on checking his odometer at the time of the offense. [ 18 ] However, the defendant does not indicate that he consulted his odometer either 500 meters or 150 meters from the police officer. He only did it 50 feet (about 15 meters) from the police officer, seeing the flashing lights on.

It raises no doubt as to the speed captured by the speedometer. [ 19 ] What about the panels covered with black boards? [ 20 ] It is written in the police officer’s report, filed as testimony, that a 60 km/h advance signal sign is installed one kilometer away, a digital speed indicator sign is installed 900 meters away and a speed limit sign of 60 km/h is installed at 500 meters. The police officer himself inspected the site before and during the operation. [ 21 ] For his part, the defendant testifies that the road signs are covered with black boards.

He thus understands that they are inoperative. [ 22 ] It is not a question here of comparing the versions, which would be contrary to the teachings of the R. v. W.(D.) [4] , but rather to check if they can coexist. [ 23 ] The court understands that certain road signs can be covered in order to make them inoperative, including signs announcing an authorized speed between 60 and 100 km/h. However, this does not exclude the fact that although the defendant did not see them, the signs announcing the authorized speed of 60 km/h are there.

Several reasons noted in his testimony could explain why his attention was drawn elsewhere: the narrowing of the lane, the row of vehicles parked at the side of the road, his desire to move away from these vehicles, the covered signs. [ 24 ] The defendant's testimony does not raise any doubt as to the commission of the offense.

FOR THESE REASONS, THE COURT : [ 25 ] FINDS the defendant guilty of the offense; [ 26 ] CONDEMNS the defendant to pay a fine of 350$ and costs; [ 27 ] GRANTS the defendant a delay of three months for the payment of both fine and costs. __________________________________ ANNE-MARIE SINCENNES, PRESIDING JUSTICE OF THE PEACE M e Élyse Bourdages For the prosecutor M. Me Darwin Jackson Ticket911 For the defense Date of hearing : February 21, 2023