R v. GRACE LOUELLE D, 2020 QCCQ 12717

Director of Criminal and Penal Prosecutions c. D'Souza 2020 QCCQ 12717 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEAUHARNOIS TOWN OF SALABERRY-DE-VALLEYFIELD “ Criminal and Penal Division” No: 760-61-122564-181 DATE: December 14, 2020 ______________________________________________________________________ BY THE HONOURABLE MADAM NATALIE BOISVERT, PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS PROSECUTOR v.

GRACE LOUELLE D’SOUZA DEFENDANT ______________________________________________________________________ REASONS FOR JUDGMENT ______________________________________________________________________ [ 1 ] On November 2 nd , 2020, the Court had the opportunity to hear Alain Barbier, a police officer, the defendant and her sister Candice D’Souza. [ 2 ] The statement of offence as well as the offence report written by the police officer were filed under P-1 pursuant to

section 62 of the Code of Penal Procedure. [ 3 ] According to that evidence, on August 19 th , 2018, at 2:40pm, the police officer clocked the defendant’s vehicle with a laser speed measuring device at 134 km/h, in a 100 km/h zone. Moreover, the police officer testified that he visually estimated the speed at 130 km/h. He was 245 meters from the defendant’s vehicle when he clocked the car. The police officer is qualified to operate a laser speed measuring device since 1994.

The device was tested before and after its use, as well as at the location of the offence before and after, and was in good working condition. The defendant was driving a white Toyota Rav 4. The car was intercepted by officer Barbier at kilometer 28.5. The defendant was identified with her driver’s licence. At 2:47pm, the statement of offence was served, and the police officer immediately left to intercept another vehicle who did not change lanes while he was interacting with Mrs. D’Souza. [ 4 ] The defendant questioned the police officer regarding the protocol to issue a speeding ticket.

In this case, the police officer explained that his car was parked in a paved area in the center median of the highway where it is possible to make a U-turn, and safe to conduct a speed operation. His patrol car was pointing west. According to the police officer it was a nice clear day and the pavement was dry. He established a detection distance where he visually detected speeders at 400 meters from where he was.

He also established an operational distance where he could start to operate his laser speed measuring device to measure the speed of vehicles coming at 300 meters from his stationary position. [ 5 ] He explained to the Court that he noticed the defendant’s white car coming towards him, passing other cars and also preceding other cars, in the left lane. With his laser, Stalker XS, pointed at the defendant’s vehicle, he saw the little red x and the speed of 134 km/h. The defendant continued on her way in the left lane.

The police officer let her pass, merged onto the highway, and followed her. [ 6 ] They went from kilometer 26 to 28.5. Because of the layout of the highway, the police officer explained that he thought it was not safe to ask the defendant to pull over before. [ 7 ] He activated the mounted arrow on the patrol car and walked towards the defendant’s car. He asked for her licence and registration and explained why the vehicle was pulled over. On his way back with the ticket, a car passed close by, putting his life and the life of the defendant in danger.

He explained that that is the reason he rushed to give her the ticket and went off to intercept the other vehicle. [ 8 ] According to the defence evidence, Mrs. D’Souza, her daughter and her sister Candice D’Souza went to visit a niece in Ottawa. At some point they all decided to attend her sister’s godchild’s bridal shower in Dollar-des-Ormeaux. Once on Highway 40, after passing a construction site, the defendant and her sister noticed the presence of a police officer in the center median of the highway, pointing his laser in the direction of the vehicles passing by.

As they were following the instructions of the GPS, the defendant

mentioned that she had no choice but to stay in the left lane while exiting the construction area. The defendant’s car was going with the traffic flow, there were cars before and after hers. The defendant’s sister noticed a white four-door sedan, with a Quebec licence plate right in front of them. They noticed the lights of the patrol car. The interception occurred near an exit. The police officer walked toward the passenger side of the vehicle and asked for licence and registration without telling them why the car was intercepted. He came back with the speeding ticket and left right away. [ 9 ] In Yusuf c.

Director of Criminal and Penal Prosecutions [1] , Justice Mario Longpré summarized the essential elements on a charge of speeding detected by a laser speed measuring device: [16] In a speeding case, evidence that: ( 1) the operator is qualified to operate the laser speed measuring device, (2) that the device was tested before and after its use, and (3) that the test showed that the device was accurate establishes prima facie evidence of the speed reading obtained by the device, subject to reasonable doubt that the defendant may raise. [17] Evidence to the contrary adduced by the defendant must tend to show that the measured speed is inaccurate.

Such evidence must be relevant and precise. However, the accused has no burden of persuasion and is not obliged to do more than raise a reasonable doubt. The burden is always on the prosecution to prove beyond a reasonable doubt that the defendant committed the prohibited act. [References omitted] [ 10 ] The defendant does not challenge the test, the accuracy of the device, or the training of the policer officer.

Therefore prima facie evidence is fulfilled. [ 11 ] However, she disputes the identification of her car, and emphasizes that she was not speeding. [ 12 ] The defendant only needs to raise a reasonable doubt. The confusion between two cars of the same size and color could, in some circumstances, be sufficient to raise such a doubt, but not in this case. The prosecutor rebutted this possibility beyond a reasonable doubt with the testimony of the police officer. [ 13 ] Answering the defendant’s question, the police officer explained in detail how he could tell that it was the defendant’s vehicle going 134 km/h.

He noted in his report that the defendant was passing a vehicle and that there was another one behind her. He did not recall a car in front. He also said that the laser is so precise he could move it from one car to the other and determine exactly the speed of each vehicle. He was aware of the other vehicles, and he specifically mentioned that when he pointed the laser at the defendant’s vehicle, he saw the speed of 134 km/h. He never lost sight of the defendant, letting her pass and merging onto the highway after her.

When questioned about the white car that was in front of the defendant’s car he simply and honestly responded that he did not recall. [ 14 ] The police officer’s testimony was extremely precise on the location of the offence, the hills, the curves, and the exits on the highway. He has been patrolling this area for 24 years. The Court finds the police officer’s testimony to be both truthful and reliable, even though his recollection of events is not perfect.

It would be astonishing if he had a perfect recollection of every detail, considering the fact that issuing speeding tickets is something police officers have to do frequently when they are on duty. He had to refer to the statement of offence that was written at the site of the offence, just like the defendant referred to her notes in order to help her recall some details. That alone does not affect the credibility or the reliability of testimony.

Regarding the possible confusion with a white sedan with Quebec plates, it is common knowledge that aside from both having four doors and four tires, there is a difference between a sedan and an SUV. The trunks of both vehicles are quite different. [ 15 ] The testimony of the police officer was clear and did not raise any doubt in the mind of the Court regarding possible confusion or a mistake in identifying the right vehicle. [ 16 ] As mentioned earlier, the defendant has no burden of persuasion in order to be acquitted.

Reliable and precise contrary evidence that tends to show that the measured speed was inaccurate is sufficient to raise a reasonable doubt. The Court does not have such evidence in this case. [ 17 ] First, the defendant testified: “I don’t think I was speeding, I don’t think it was fair the way my car was selected” [2] . [ 18 ] The defendant and her sister said they were going with the traffic flow. Mrs. D’Souza did not understand why her car was selected. She further indicated she was not speeding. [ 19 ] The Court gave many opportunities to the defendant to specifically state the speed of her car.

She never provided clarification. [ 20 ] According to many prior cases [3] , such evidence does not qualify as contrary evidence. General denial is not sufficient to raise a reasonable doubt in the mind of the Court [4] . [ 21 ] Exercise of police discretion in selecting random cars during a speeding operation is common and necessary to law enforcement. In the absence of prima facie evidence of an abuse, the police officer did not have to explain why he selected the defendant’s car. [5]

[ 22 ] The defendant mentioned that she did not understand why she was pulled over until the police officer came back with the speeding ticket. Not being represented by a lawyer, she did not file a proper motion regarding her right to be informed promptly of the reason for her detention [6] . Because it was brought up by the defendant, the Court will address the issue. [ 23 ] In order to establish a violation of their rights, a defendant must establish on a balance of probabilities that a breach occurred.

In this case, it is not contested that the police officer targeted the defendant’s car at 2:40pm and the ticket was served to the defendant at 2:47pm. The discrepancy between the defendant and the police officer’s testimony regarding the mileage covered before the interception is not relevant to the commission of the offence. In that time frame, the police officer had to engage the pursuit, pull over, get out of his vehicle, speak with the defendant and come back with the ticket.

The police officer mentioned in his testimony that he told the defendant she was being intercepted for speeding, asked for her licence and registration, and went back to his car. The defendant had the opportunity to cross-examine the officer regarding this aspect, but no specific questions were asked. While the police officer was by her car, she was looking for her registration. The only document provided by the defendant was her licence. The Court does not have to choose between the testimony of the police officer and the defence witnesses.

Even if the Court came to the conclusion that her right to know why she was detained was infringed, the defendant was at the most detained a few minutes before she knew she was intercepted for speeding. Applying the principles set out by the Supreme Court of Canada in Grant [7] , it would not warrant the exclusion of the evidence under section 24(2) or a stay of proceedings under section 24(1) of the Charter. [ 24 ] The Court is convinced beyond a reasonable doubt that the defendant was driving at a speed of 134 km/h in a 100 km/h zone on August 19 th , 2018, on Highway 40, contrary to

section 328 of the Highway Safety Code [8] . WHEREFORE, THE COURT: FINDS the defendant guilty as charged. __________________________________ NATALIE BOISVERT PRESIDING JUSTICE OF THE PEACE Me Majolaine Brodeur Attorney for Director of criminal and penal prosecutions Mrs. Louelle Grace D’Souza Defendant Date of hearing: November 2, 2020