R v Mediascene Inc, 2022 MBPC 11

CITATION: R v Mediascene Inc , 2022 MBPC 11 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Brendan Roziere & ) Kelsey Harrison ) for the Crown -and- ) ) ) Mediascene Inc. ) Todd Dube ) for the Defendant ) ) ) ) ) Reasons for Decision ) Delivered: February 28, 2022 JUDICIAL JUSTICE OF THE PEACE K.

TRASK INTRODUCTION [ 1 ] Todd Dube, a self-represented litigant, is before the Court as owner of Mediascene Inc., the defendant and registered owner of a vehicle alleged to have sped by travelling 46 kilometres per hour in a 30 kilometre per hour zone at 10:46am on December 12, 2019, in Winnipeg, Manitoba, contrary to section 95(1) of The Highway Traffic Act , CCSM c H60 . This ticket is a “photo enforcement ticket,” thus invoking sections 257.1 and 257.2 of The Highway Traffic Act . The matter proceeded to a dispute hearing on January 31, 2022, following which I reserved my decision and my reasons.

These are my reasons. THE CASE PRELIMINARY COMMENTS [ 2 ] At the outset of the hearing, Mr. Dube noted the amount of time that has elapsed since the date of this ticket. The Court clarified with Mr. Dube that no motions had been presented on that point and that Charter motions are generally not to be argued on the fly. No motion was brought before me, nor was an adjournment sought to bring such a motion.

Without reviewing the whole case history, it is noted that on September 15, 2021, well into the conduct of this matter, counsel for the defendant – who has since sought and been granted leave to be removed as counsel of record – applied for an adjournment, specifically waiving any delay to the date of the dispute hearing. THE HEARING [ 3 ] Upon initially being asked by the Clerk of the Court whether he was admitting or denying the charge, Mr. Dube indicated he was admitting the offence as set out on the ticket before the Court. Given that Mr.

Dube is a self-represented litigant for the purposes of this hearing, the Court clarified Mr. Dube’s understanding of admitting the offence. Pursuant to section 55(4) of The Provincial Offences Act , CCSM c P160 (which sets out that a justice must proceed with a hearing “if the defendant denies the offence or refuses to either admit or deny the offence, or does not answer directly”), the matter proceeded to a dispute hearing where Mr. Dube did not then answer directly.

[ 4 ] The Crown chose to proceed by way of certificate evidence in this case, which is permitted under section 63(1) of The Provincial Offences Act provided that:

a) it sets out evidence of the alleged offence,

b) it appears to be signed by an enforcement officer authorized by the regulations, and

c) that a defendant has been provided with reasonable notice of the certificate evidence, the latter point being conceded by Mr. Dube.

As such, the Crown tendered three exhibits making up its case: Exhibit 1 – five pages labelled as “Schedule F (Certificate of the Operator of an Image Capturing Enforcement System – Speeding Offence),” (referred to hereafter as the “Certificate of the Operator”), including two appended photographs on two separate pages; Exhibit 2 – one page labelled as “Schedule A – Tester’s Certificate (Image Capturing Enforcement System),” (referred to going forward as the “Tester’s Certificate”); and, Exhibit 3 – a single page certificate of registration issued under section 324(1) of The Highway Traffic Act , (referred to hereafter as the “Certificate of the Registrar”).

Upon the three exhibits being entered and reviewed by the Court, the Crown closed its case. [ 5 ] Mr. Dube did not call evidence and indicated that he would be relying on arguments related to the legislation. At various points in the course of the hearing, Mr. Dube commented that he was not disputing aspects of the Crown’s case — including the contents of the certificate evidence the Crown was relying upon — but that he was contesting the ticket in a broad way. [ 6 ] As noted previously, Mr. Dube is a self-represented litigant.

In brief reasons related to the Pintea v Jones , 2017 SCC 23 , decision, Karakatsanis J noted the Supreme Court of Canada’s endorsement of the Canadian Judicial Council’s Statement of Principles on Self- represented Litigants and Accused Persons from 2006.

One such principle is that judicial decision-makers and courts, along with others in the justice system, “have a responsibility to promote opportunities for all persons to understand and meaningfully present their case regardless of representation.” To this end, in the course of the dispute hearing on this matter, the Court explained that it would not and could not take the place of Mr. Dube’s counsel, but that it would explain the process and ensure trial fairness.

The difference between submissions and evidence was explained by the Court, as was the evidentiary burden, along with the fact that a defendant may choose not to call evidence (as there is no obligation to do so) throughout the course of the dispute hearing. After this explanation, the Court invited Mr. Dube to put forward evidence, if that was his wish. Mr. Dube confirmed that he would not be calling evidence in this case.

SUBMISSIONS [ 7 ] Both parties then made submissions to the Court, with the Crown presenting its arguments first. [ 8 ] The Crown argued that it met its case in full, and, there being no evidence to the contrary, a conviction must be entered by the Court. The Crown argued the evidence before the Court showed that on December 12, 2019, the vehicle shown in the image capturing enforcement system photos, being a white Ford bearing a license plate “MEDIA 1,” was travelling 46 kilometres per hour in a zone with a 30 kilometre per hour speed limit.

The Crown further noted that all required testing had been conducted on the image capturing enforcement system and that The Provincial Offences Act requires that the certificate be taken as proof of its contents, ergo a conviction must be entered. [ 9 ] Mr. Dube argued that the case revolves around signage, and specifically that the signage was insufficient in this case. He pointed to the Reduced-Speed School Zones Regulation , Man Reg 136/2013 , and argued that, per

section 7 of that regulation, there ought to be signage not just at the beginning of the zone but also at cross streets within the zone. Mr. Dube called on the Crown to be held to a strict standard and took the position that the Crown must show that the requirements – including the requirement for signage at intersecting streets within a school zone – are met in this case. Mr.

Dube noted it is not for him, in the place of the defendant, to show that the signage was not there, but that it falls to the Crown to establish that the signage met the requirements as set out in The Highway Traffic Act and the associated regulations. Mr.

Dube argued that signage of this nature is a common sense requirement and that is why “every other city has intersection signs.” ANALYSIS [ 10 ] In the course of both parties’ closing submissions, the Court sought comments from both parties regarding the Image Capturing Enforcement Regulation , Man Reg 220/2002, section 2(2) (a), and how this provision ought to be considered in conjunction with the presumption at

section 257.2(2) of The Highway Traffic Act . This will be canvassed first, as I consider the case presented by the Crown, before I then turn to consider Mr. Dube’s arguments. [ 11 ] Section 2(2) (

a) of the Image Capturing Enforcement Regulation provides that: 2(2) For the purpose of this regulation, a photo radar system is vehicle-mounted if a. the system hardware is contained within the vehicle’s occupant compartment or, if not all of the hardware is contained within that

compartment, any hardware outside it is affixed to the vehicle, and b. the system’s operator is in the occupant compartment while he or she operates the system;… THE PARTIES’ POSITIONS [ 12 ] The Crown took the position that section 2(2) (

a) of the Image Capturing Enforcement Regulation is not an essential element and that there is no evidence the image capturing enforcement system was operated improperly in this case, suggesting then that the presumption at

section 257.2(2) of The Highway Traffic Act – being that evidence from an image capturing enforcement system, provided particular criteria (as set out at sections 257.2(1) and 257.2(3) ) are met, is “conclusive proof” of that information – ought to apply.

The Crown then invited the Court to take judicial notice of image capturing enforcement systems and how they are operated, and, given the presumption under The Highway Traffic Act , argued that the Court should accept that the image capturing enforcement system in this case was used properly, even in the absence of evidence showing this or any evidence as to the placement of the system’s hardware or the system’s operator. [ 13 ] Mr.

Dube, in his comments, noted that the image capturing enforcement systems can be operated without an operator’s direct involvement and referenced that photographs have been taken of operators sleeping while the systems were set up. Given this information was presented in argument and there is no evidentiary foundation before the Court to support this assertion, the Court can make limited use of this information, to be sure. That said, it does tend to point against the appropriateness of taking judicial notice of how image capturing enforcement systems can be operated. Mr.

Dube then went on to say he is not arguing that point. STATUTORY

INTERPRETATION [ 14 ] The Highway Traffic Act allows for a Court to consider evidence from an image capturing enforcement system as follows: 257.2(1) In a proceeding commenced under The Provincial Offences Act (other than a proceeding commenced by an information) for an offence referred to in clause 257.1(1)(a), if a reproduction on paper of an image obtained through the use of an image capturing enforcement system (

a) shows the vehicle and the number plate displayed on the vehicle ; and (

b) displays, or has appended to it, the information prescribed by regulation in relation to the offence ; the reproduction and the information appended to it are admissible in evidence. [Emphasis added.] [ 15 ] Sections 7(7) and 7(8) of the Image Capturing Enforcement Regulation prescribe the information for vehicle-mounted photo radar systems as follows: 7(7) For the purpose of

section 257.2 of the Act, a reproduction of an image or images obtained through the use of an image capturing enforcement system (vehicle-mounted or trailer-mounted photo radar system) relating to a contravention of subsection 95(1) of the Act (speeding offences) must (

a) display the information set out in subsection (8); and (

b) have appended the information set out in the certificate in

Schedule F, which has been completed and signed by an enforcement officer. 7(8) The information that must be displayed on a reproduction under subsection (7) is the following information:

1. The image is to display the rear aspect of a vehicle that, as determined by radar speed measurement, exceeds the maximum allowable speed while passing over the area of roadway monitored by the system’s radar antenna. 2. The image is to include a superimposed data box as shown in drawing C1 in

Schedule C or a superimposed data bar as shown in drawing C2 in that Schedule. The data box is to contain the data display fields labelled A, C, E, G, H and I in drawing C1 and to show in those fields the information set out in table C1 in

Schedule C. The data bar is to contain the data display fields labelled A to F in drawing C2 and to show in those fields the information set out in table C2 in

Schedule C. [ 16 ] Two photographs were filed in this case as part of Exhibit 1: one being a close up of a white Ford vehicle’s rear license plate and one depicting the rear view of a white Ford vehicle, showing its license plate, driving on a road, with information underneath the photograph, in a data bar format.

The data bar includes: A – the date on which the image was captured (shown as December 12, 2019), B – the time (shown as 10:46:45), C – the direction of the vehicle compared to the image capturing enforcement system (being receding), D – the violation number (being number 20), E – the location code (being 1193), and F – the target vehicle’s speed (being 46 kilometres per hour). Thus, the information required by section 7(8) of the Image Capturing Enforcement Regulation is properly before the Court. [ 17 ] However, what is meant by “the information prescribed by regulation in relation to the offence,” in

section 257.2(1) of The Highway Traffic Act , must be read in context, including that the Image Capturing Enforcement Regulation prescribes more than what has just been canvassed. For example, the Image Capturing Enforcement Regulation sets out that there are four types of image capturing enforcement systems (intersection safety camera systems, vehicle-mounted photo radar systems, trailer-mounted photo radar systems, and vehicle-mounted photo laser systems) (see subsection 2(1) ).

The Image Capturing Enforcement Regulation specifies what systems are approved as each of the four types of image capturing enforcement systems, including a Gatso RS-GS11, made by Gatsometer BV, as an approved vehicle-mounted photo radar system (see subsection 3(2)), being the same system referenced on page one of the Certificate of the Operator, at Exhibit 1 in this case. While there are references to this information – the type of image capturing enforcement system and the specific name of the image capturing enforcement system used in

Schedule F generally, being the prescribed form for the certificate of the operator in tickets of this nature, and in the specific Certificate of the Operator before the Court in this case – I do not see that that is the end of the matter. [ 18 ] Specifically, as noted above, the Image Capturing Enforcement Regulation also specifies two conditions for a photo radar system to be vehicle-mounted, including that the system hardware is within the vehicle’s occupant compartment or affixed to the vehicle if outside the occupant compartment, and that the operator is in the occupant compartment while operating the system (see subsection 2(2) ). A key rule of statutory

interpretation is that every provision is to be read in context, with its plain-language meaning, and that provisions are not to be rendered meaningless. Assuming nothing was meant by this provision, and thus that there is no need to establish the placement of the image capturing enforcement system or its operator, is an improper construction of the provision.

It is also noteworthy that The Highway Traffic Act includes a number of presumptions, including the presumption canvassed here about how courts are to treat evidence from an image capturing enforcement system, though it and the Image Capturing Enforcement Regulation provide no such presumption regarding the placement of the system or its operator. Given all of this, I am satisfied that the placement of the system and the operator are crucial for the system to be considered a vehicle-mounted photo radar system.

JUDICIAL NOTICE [ 19 ] Judicial notice has been defined as …the acceptance by a court, without the requirement of proof, of any fact or matter that is so generally known and accepted in the community that it cannot reasonably be questioned, or any fact or matter that can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned. (David M Paciocco, Palma Paciocco, & Lee Stuesser, The Law of Evidence: Eighth Edition (Toronto: Irwin Law Inc, 2020), at p 573, see also pp 573-583, and see R v Find , 2001 SCC 32 , notably para 48 .) [ 20 ] Thus, a strict threshold applies before a court will take judicial notice of any fact.

In this case, taking judicial notice – as the Crown has invited the Court to do – would dispense with the Crown’s specific need to prove how the image capturing enforcement system was operated or where the system was located. [ 21 ] I must ask whether the operation of image capturing enforcement systems is so notorious and well understood that the community understands that the system hardware for and the operator of a vehicle-mounted photo radar system necessarily are located within the compartment of the vehicle (or any equipment is affixed to the vehicle). Notwithstanding many individuals in the community

may indeed be familiar with the presence of image capturing enforcement systems in general, I am not satisfied that the community has any understanding on such a specific and technical point as this.

Further, even with evidence before the Court tending to show that the image capturing enforcement system used in this case was in fact used in accordance with the manufacturer’s recommendations – as the Certificate of the Operator states here – I still question the ease of reference to such recommendations, along with their accuracy (given the possibility of updates, for example), and note that I have nothing before me to suggest that these recommendations say anything about the location of the image capturing enforcement system or its operator. [ 22 ] I am satisfied that taking judicial notice on a point of this nature is not appropriate at this time.

AN INFERENCE [ 23 ] I can consider whether it is appropriate to make an inference about the positioning of the operator and the image capturing enforcement system in this case. [ 24 ] In R v Patterson , 2020 NSSC 151 , Hunt J judicially reviewed a trial judge’s decision not to infer that a proposed expert witness understood her duty of impartiality to the Court. There, the trial judge considered that the witness had been properly qualified as an expert before ten courts in four different provinces, but found this was an insufficient basis on which to infer that the witness understood her duty to the Court.

Justice Hunt reviewed other cases in which courts had inferred that expert witnesses who had not specifically been asked about their duties did in fact understand their duties; this tended to be in relation to the tone and demeanor of the witness, the nature of the evidence, and the totality of the circumstances.

Without specific evidence on a given point, the parties “will be left with only the possible inferences which can be drawn from the record as it does exist” (at para 83), meaning that there is a risk that the decision-maker will determine the record is deficient to make such an inference (at para 88). [ 25 ] In this case, there is little to no information on this specific issue within the Certificate of the Operator, being Exhibit 1 before me. The Certificate of the Operator indicates that B. Kaban was monitoring the speed of vehicles on a highway at the time of the offence. It further states that B.

Kaban “was operating, in accordance with the manufacturer’s recommendations, an image capturing enforcement system approved by the Minster under Manitoba Regulation 220/2002,” but – as above – the Court does not have the benefit of any further information about the manufacturer’s recommendations or what they might say about the placement of the operator or the system itself.

The second page of the Certificate of the Operator indicates that, “[a]t the time that the speed of the above referenced vehicle was determined, I visually confirmed that the vehicle was within the above identified zone,” though this, again, does not specifically state where the operator or the system were located. [ 26 ] No information is prescribed to be included about the location of the operator or the image capturing enforcement system within

Schedule F of the Image Capturing Enforcement Regulation . That, however, I do not find to be the end of the story; while I appreciate that

Schedule F has been prescribed by the Image Capturing Enforcement Regulation itself, it does not – and cannot, in fact – do away with the judicial function of weighing and being satisfied that all required elements have been met. This would be akin to deferring judicial decision-making to the Legislature or the Executive, or for the trial judge in the Patterson case, discussed above, deferring to the witness having been qualified as an expert by other courts. While the fact that

Schedule F has been prescribed and fails to include information of this nature is a factor I can consider in weighing whether or not it would be appropriate to make an inference about the placement of the system and its operator in this case, it in no way can be a full answer to this question. I do, however, accept, based on a plain reading of

section 257.2(1) of The Highway Traffic Act and subsections 7(7) and (8) of the Image Capturing Enforcement Regulation , that

Schedule F, being the prescribed certificate of the operator, along with the prescribed photograph and data box or bar, was intended to be a foolproof way to put forward the required information for the courts to admit and then accept evidence related to image capturing enforcement systems. [ 27 ] Based on comments by Hamilton JA of the Manitoba Court of Appeal in R v Sweryda , 2013 MBCA 112 , approving of the

summary conviction appeal judge having recognized that where the case came down to a question of statutory

interpretation of The Highway Traffic Act and the Image Capturing Enforcement Regulation , the overriding principle was that “the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament” (quoted at para 12). Hamilton JA also approved the

summary conviction appeal judge having found that safety is a “central objective of the Act and Regulation,” before concluding at paragraph 15 with a quote from the

summary conviction appeal court’s decision that: …[I]t would [not] have been the intention of the Legislature to have stringent conditions on what is a proper playground zone. The Legislature’s intention was to allow for added speed enforcement in areas of concern, and limiting the ability to conduct that enforcement by requiring a multitude of signs would not have been its intention.

[28] While the specific intention of the Legislature or the Executive regarding the use of image capturing enforcement systems andthe evidence required to establish and prove offences through them must be distinct from its intentions regarding signage, I neverthelessfind these comments instructive and helpful. It would be consistent with this

interpretation that the Legislature or the Executive similarlydid not intend to make it impossibly difficult for an operator’s certificate, in the form as prescribed by

Schedule F in the ImageCapturing Enforcement Regulation, to be admitted and accepted as proof of the facts within it. In fact, the presence of

Schedule Fsupports an intention to simplify and uniformly set out what must be in evidence regarding a ticket issued through an image capturingenforcement system. I note as well that words of a provision are to be interpreted “so as to promote the purpose of the legislation andavoid unintended undesirable consequences” (see Ruth Sullivan, Sullivan on the Construction of Statutes – Sixth Edition (Markham:LexisNexis, 2014) at p 1.9 and chapters 9 and 10). That said, this does not dispense with the fact that subsection 2(2)(

a) of the ImageCapturing Enforcement Regulation must still be read in a meaningful way. [29] Oliphant J held that certificate evidence – in that case relating to information from the Registrar of Motor Vehicles as allowedfor under The Highway Traffic Act – “allows for a convenient means of proving any matter of record from the office of the Registrar ofMotor Vehicles” and “obviates the necessity for the Registrar, or someone under his authority, to attend court to testify” (see R vSenchuk, (1990) (MB KB), 67 Man R (2d) 231, (MBQB) at para 16).

Oliphant J continued to say that “[t]helegislation saves the court time and the taxpayers’ money,” before continuing to acknowledge that, “to some extent, it is an intrusionupon the rights of an accused person. That is why there must be strict compliance with the statutory provision…” (see Senchuk at para16).

Other Manitoba decisions have similarly held that legislative requirements must be strictly met before certificate evidence is to beadmitted: see, for example, R v McKee, 2014 MBPC 26 (Chapman PJ) and R v Hykawy, 2007 MBPC 1 (Garfinkel PJ), and see also R vSenchuk, referenced above. [30] At the same time, in the present case before me, the Certificate of the Operator describes the image capturing enforcementsystem that B. Kaban was operating as a “[v]ehicle-mounted photo radar system,” being a “Gatso RS-GS11, made by Gatsometer BV.”As stated, I am satisfied that this is an approved system.

I also note the language used here: that it is a “[v]ehicle-mounted photo radarsystem” (emphasis added).

Seeing that that is akin to a defined term within the Image Capturing Enforcement Regulation, includingthrough subsection 2(2)(a), which specifies the placement of the system and of the operator, I accept that there is an allowable inferenceto be made in the circumstances before me that the system and the operator – in order to qualify as a vehicle-mounted photo radar system– were within the vehicle’s occupant compartment (or, for the system, that any hardware outside of the occupant compartment wasaffixed to the vehicle). As such, I am prepared to, and do, make that inference here.

THE REMAINDER OF THE CROWN’S CASE [31] Apart from this issue, The Highway Traffic Act further provides for a presumption that the evidence related to the imagecapturing enforcement system is conclusive proof of those facts, barring evidence showing the system was malfunctioning or operatedimproperly (see

section 257.2(2)), so long as

section 257.2(3) is met, that: (

a) the image capturing enforcement system was tested as required by the regulations; and (

b) the testing was conducted within the period of time before or after the alleged offence, as set out in the regulations. [32] Subsections 10(1) and (2) of the Image Capturing Enforcement Regulation provide that: 10(1) For the purpose of subsection 257.2(3) of the Act, to ascertain that an image capturing enforcement system is in proper workingorder, each image capturing enforcement system must be tested by the operator of the system as follows: (

a) within the 24-hour period before the alleged offence was committed; (

b) within the 24-hour period after the alleged offence was committed. 10(2) The tests to be conducted on a vehicle mounted photo radar system and a trailer mounted photo radar system are an internal circuittest, an external tuning fork test and an audio doppler test. [33] Exhibit 1, being the Certificate of the Operator, indicates that the operator conducted these prescribed tests within the

prescribed timeframe, being within the 24-hour period before and after the alleged offence.

Schedule A, being the Tester’s Certificate, and entered as Exhibit 2 in this case, also shows that the system was tested with a Gunn Oscillator and Internal Electronic Tuning Fork within six months of the alleged offence, as required by the Image Capturing Enforcement Testers Regulation , Man Reg 144/2017 , as part of the testing requirements under

section 257.2(3) of The Highway Traffic Act . Given that the City of Winnipeg is authorized by subsection 5(1) of the Image Capturing Enforcement Regulation to use image capturing enforcement systems, and that, per the Certificate of the Operator, B. Kaban was acting on behalf of the municipality of Winnipeg, as an enforcement officer, I am satisfied that the evidence from the image capturing enforcement system is properly before me and sets out a prima facie case of speeding in a school zone.

Further, section 324(1) of The Highway Traffic Act allows me to consider a certificate of registration, being Exhibit 3 in this case, which establishes that Mediascene Inc. is the registered owner of the vehicle matching the vehicle and license plate depicted in the photographs submitted as part of Exhibit 1 from the image capturing enforcement system.

Specifically, I am satisfied that the Crown has made out a prima facie case that, on December 12, 2019, at 10:46am, a white Ford, owned by Mediascene Inc., was driving 46 kilometres per hour in a marked 30 kilometre per hour school zone, as captured by an approved image capturing enforcement system that was tested as required and operated by an enforcement officer acting on behalf of the City of Winnipeg. MR. DUBE’S ARGUMENT [ 34 ] I will now turn to consider Mr. Dube’s argument. Mr.

Dube made submissions about the nature of a school zone in the course of his submissions in this case and has referred to the Reduced-Speed School Zones Regulation . In short, he argues that that

section 7 of the Reduced-Speed School Zones Regulation requires there to be signage posted informing drivers of the maximum permitted speed “as near as practicable to the intersection with the side street facing the traffic lane in the reduced-speed school zone into which drivers entering the zone may proceed” (per subsection 7(3) ), “[w]hen a side street intersects the portion of highway comprising a reduced-speed school zone” (per subsection 7(2) ).

THE CROWN’S RESPONSE [ 35 ] The Crown has argued that there is no evidence before the Court contradicting the evidence put forward by the Crown. [ 36 ] The Crown also directed the Court to sections 80 and 257.2 of The Highway Traffic Act . [ 37 ]

Section 80 provides a prima facie presumption that any sign or traffic control device on a highway was erected and maintained in accordance with The Highway Traffic Act . [ 38 ]

Section 257.2 of The Highway Traffic Act , which has been canvassed above, sets out that a reproduction of an image obtained through an image capturing enforcement system is admissible and, absent evidence showing the system was malfunctioning or was operated improperly, if it shows the vehicle and the vehicle’s number plate and displays, or has appended to it, the information prescribed by regulation in relation to the offence, and if the image capturing enforcement system was tested as per the regulations and within the timeframe prescribed by the regulations, that evidence (being the reproduction and appended information) “is conclusive proof of the information shown or displayed on the reproduction or appended to it” (see

section 257.2(2) of The Highway Traffic Act ). ANALYSIS [ 39 ] I appreciate the arguments about the nature of signage required in a reduced-speed school zone. LEGISLATION [ 40 ] Section 13(1) of the Image Capturing Enforcement Regulation provides the following regarding school zones: 13(1) For the purposes of subsection 257.1(2) of the Act, a school zone is (

a) a portion or length of highway, other than one referred to in clause (b), that (

i) adjoins or is adjacent to land (

A) on which a school is located, or (

B) that is a school yard or school recreational facility, and

(ii) is identified as a school zone by approved traffic control devices placed at the beginning of the zone facing each direction of traffic entering the zone; or (

b) a portion of highway that is a reduced-speed school zone that is established and identified in accordance with the Reduced-Speed School Zones Regulation made under the Act. [ 41 ] Thus, I am satisfied that the Image Capturing Enforcement Regulation prescribes at section 13(1) (

b) that reduced-speed school zones must follow the requirements as set out in the Reduced-Speed School Zones Regulation . [ 42 ] Section 1(1) of the Reduced-Speed School Zones Regulation indicates that a reduced-speed school zone … means a portion of highway that is designated by a traffic authority under

section 98.1 of the Act as a school zone that has a reduced maximum permitted speed at specific times or at all times. [ 43 ]

Section 98.1(1) of The Highway Traffic Act allows for a traffic authority to establish a speed limit lower than the otherwise applicable speed limit for a school zone. [ 44 ] I also note that, as Mr. Dube has argued, that the Reduced-Speed School Zones Regulation goes on to provide that: 7(1) In this section, "side street" means a highway, other than a back lane, that intersects the portion of a highway comprising a reduced- speed school zone. 7(2) When a side street intersects the portion of highway comprising a reduced-speed school zone, the traffic authority must, in accordance with subsection (3), erect (

a) traffic control devices conforming to Drawing 2 in the

Schedule at places in the reduced-speed school zone to inform drivers of the reduced maximum permitted speed in the zone; and (

b) traffic control devices at the same places that comply with subsection 6(7) if the reduced maximum permitted speed is not in effect continually. 7(3) A traffic control device erected for the purpose of subsection (2) must be erected as near as practicable to the intersection with the side street facing the traffic lane in the reduced-speed school zone into which drivers entering the zone may proceed. [ 45 ] Drawing 2 sets out a 30 kilometre per hour speed limit, while subsection 6(7) allows for specifying the timing when a reduced- speed school zone is in effect, where it is not in effect at all hours. To Mr.

Dube’s point, I am satisfied that a plain reading of these subsections indicates that reduced-speed school zone signage is required at streets intersecting such zones to inform drivers of the reduced speeds. APPLICATION [ 46 ] However, without an evidentiary foundation before the Court, there is nothing to displace what has been established through the Crown’s case – that this offence took place in a properly marked school zone. Specifically, the Certificate of the Operator, being Exhibit 1 before the Court, prepared by B.

Kaban, being an enforcement officer per The Provincial Offences Act , states that the location being monitored, being eastbound traffic on Talbot Avenue at or near Winnipeg, Manitoba, “had signage posted at the beginning of and at the end of the zone, designating the monitored location as a designated school zone” (see page 1). This alone does not address the argument Mr. Dube has made regarding intersecting side streets entering a designated reduced-speed school zone and the requirements under the Reduced-Speed School Zones Regulation – it says nothing about signage at intersecting streets.

However, in the next line, B. Kaban provides that, “[t]he signage conformed to The Highway Traffic Act and Regulations and indicated a maximum allowable speed of 30 kilometres per hour at that location on the day and at the time set out above.”

[ 47 ] While B. Kaban does not specifically state that there was signage at intersecting streets, the Certificate of the Operator does indicate that the signage “conformed to The Highway Traffic Act and Regulations .” Without contradictory evidence on this point before the Court – bearing in mind that Mr. Dube did not testify or otherwise introduce any evidence whatsoever in this case – the certificate prepared by B. Kaban appears to be consistent with the requirements for signage under the Reduced-Speed School Zones Regulation (as well as the Image Capturing Enforcement Regulation ).

Again, the certificate evidence states that the signage conformed to The Highway Traffic Act and regulations.

In the absence of anything further – including evidence tending to show that the signage did not conform to either The Highway Traffic Act or the regulations – this evidence must stand. [ 48 ] I note that Exhibit 1 has come before the Court by virtue of section 63(1) of The Provincial Offences Act , which allows for certificate evidence that “sets out evidence of the alleged offence, … and appears to be signed by an enforcement officer or other person authorized by the regulation,” to be admitted as evidence and, importantly, that upon its admission, the certificate “is proof of the facts stated in the certificate in the absence of evidence to the contrary.” There is no need to prove the appointment or signature of an enforcement officer (per section 63(2)), and while a defendant is entitled to reasonable notice of the certificate evidence, Mr.

Dube advised the Court that he had indeed had such notice of the evidence in this case. The certificate before me has been duly signed by B. Kaban, who is indicated to be an enforcement officer under The Provincial Offences Act , and it contains evidence of the alleged offence of speeding in a school zone.

As such, the presumption that the evidence contained in the certificate is proven – and thus that the signage requirements per The Highway Traffic Act and associated Regulations have been met in this case – applies here. [ 49 ] As the Crown has correctly noted, the entire case before me is made up of the certificate evidence submitted by the Crown – being Exhibits 1, 2, and 3, as canvassed above. The defendant chose not to put forward evidence in this case. The Court specifically canvassed the nature of evidence as opposed to submissions or arguments with Mr.

Dube in the course of the dispute hearing on this matter, given that he is a self-represented litigant in this instance, and he was adamant that he would not be presenting evidence. [ 50 ] If there had been evidence submitted by Mr. Dube, or if Mr. Dube had sought to cross-examine B. Kaban on the certificate evidence before the Court (and if it was determined by the Court that B.

Kaban’s presence was required in order for the matter to be decided fairly), and if this evidence tended to rebut or contradict what is set out in the certificate evidence, I could have considered that and come to a determination as to whether or not there was evidence contradicting the evidence laid out in the certificate and made a substantive finding in that regard. There is, however, no such contradictory evidence before the Court to be considered.

I note that this does not change who bears the burden of proof in this case: the Crown must establish the offence beyond a reasonable doubt and it remains up to a defendant to raise a reasonable doubt. Raising a reasonable doubt about the appropriateness of the signage in this case – given the wording in the certificate evidence that has been accepted by the Court about the signage as it existed, including that it met the requirements of The Highway Traffic Act and associated regulations – requires more than merely pointing to the regulations. Evidence is required.

CONCLUSION [ 51 ] Based on this, as there is nothing before me to displace or call into question the case put forward by the Crown through the Certificate of the Operator, the image capturing enforcement system photographs, the Tester’s Certificate, and the Certificate of the Registrar, as well as the requisite presumptions, as canvassed above, I am satisfied that the Crown has made out the offence on this ticket and a conviction will be entered. [ 52 ] I will now hear submissions about sentencing. “Original signed by:” _______________________ K. Trask, JJP