R v Rusu, 2023 ABCJ 87

In the Alberta Court of Justice Citation: R v Rusu, 2023 ABCJ 87 Date: 20230405 Docket: A04097063J Registry: Calgary Between: His Majesty the King Crown - and - Constantin Rusu Accused Decision of the Worship Justice of the Peace S. L. Bagg [ 1 ] On August 25, 2021, Calgary Police Officer Brad Hyde issued Constantin Rusu a speeding ticket contrary to section 115(2) (

p) of the Traffic Safety Act. The ticket was for travelling 100 km/hr in a posted 80 km/hr zone. [ 2 ] Officer Hyde testified that he was driving an unmarked police vehicle at 80 km/h northbound on Macleod Trail, approaching Canyon Meadows Drive S.W., when Mr. Rusu’s vehicle came up from behind and passed him, pulling ahead. [ 3 ] According to Officer Hyde, once he was passed he pulled up to match the speed of Mr. Rusu’s vehicle, which was travelling 100 km/hr. Officer Hyde testified that for approximately one half to three quarters of a kilometre he followed Mr.

Rusu from a distance of seven to eight car lengths, while passing other vehicles. Mr. Rusu maintained the speed of 100 km/hr in the 80 km/hr zone for the duration, which Officer Hyde confirmed by keeping an eye on the digital speedometer of his vehicle. [ 4 ] In addition to this clocked speed – measured against the speedometer of the police vehicle, Officer Hyde also advised the Court that he took a visual estimate of Mr. Rusu’s speed. Officer Hyde testified to having twenty-three years of experience issuing speeding tickets.

He testified that his accuracy, in terms of visually estimating speeds, is +/- 5 km/hr. [ 5 ] Mr. Rusu did not attend his trial; Mr. Roberto Santillana appeared on his behalf. Mr. Santillana’s defence was based on questioning the reliability of the Crown’s evidence. Specifically, Mr. Santillana questioned the reliability of Officer Hyde using the speedometer in the police vehicle to clock Mr. Rusu’s speed. The Reliability of Constable Hyde’s Evidence [ 6 ] In Mr. Santillana’s cross-examination of Officer Hyde he highlighted that for the police speedometer to have accurately

measured Mr. Rusu’s speed, Officer Hyde would have had to maintain a consistent distance behind Mr. Rusu for a sustained period of time. [ 7 ] Mr. Santillana pressed Officer Hyde about his ability to specifically remember the event in question, given a level of detail which was absent from the officer notes recorded on the back of the speeding ticket, in consideration of the amount of time which had passed, and the number of traffic stops the Officer had executed in the meantime. Officer Hyde testified with certainty that he could still recall the relevant details. [ 8 ] Mr.

Santillana specifically questioned Officer Hyde about how he could remember the number of car lengths from which he followed Mr. Rusu and clocked his speed. The Officer testified that his recollection of this detail was aided by the fact that it is his practice to follow vehicles from six to seven car lengths. Officer Hyde testified that from that distance he matched Mr. Rusu’s speed of just over 100 km/hr. The Functionality of Officer Hyde’s Speedometer [ 9 ] The Court received limited evidence concerning the reliability of the speedometer in the police vehicle.

Officer Hyde testified that he had spent the day in the undercover vehicle – driving at various rates of speed depending on the speed limit in different areas of the city. He advised that he believed his speedometer was accurate as he was generally travelling at the speed of other traffic, which he assumed were going the speed limit.

The Presumption of Mechanical Regularity [ 10 ] Given a lack of specific information about the speedometer in Officer Hyde’s vehicle, the Crown relied on the basic idea that mechanical devices work as intended. [ 11 ] At trial, Mr Santillana pointed out that when defendants in traffic court attempt to rely on the accuracy of their speedometers to contradict police evidence of speeding, the court tends to reject the defendant’s evidence, unless the accuracy of the speedometer is certified by a mechanic. Mr.

Santillana argued that if there is uncertainty about the accuracy of a speedometer, this should cast a reasonable doubt in Mr. Rusu’s favour in this case. [ 12 ] There are several cases over the last fifty years which discuss a presumption of mechanical regularity.

This is the idea that courts can rely on the proper functioning of everyday mechanical equipment, without the accuracy of a given device being proven in each case. [ 13 ] As stated in the case of R v AK 2004 ABQB 875 : “to give an example at the extreme, witnesses frequently testify as to the time of events, but no one expects evidence of the workings of a watch”. (This reasoning was later upheld by the Court of Appeal in the R v AK 2005 ABCA 166 .) [ 14 ] The more recent case of R v Abdulkadir 2018 ABPC 244 considers the presumption of mechanical regularity as it is discussed in numerous cases from multiple jurisdictions, including Alberta, British Columbia, and Saskatchewan, and involving various types of mechanical devices including watches, thermometers, and specifically the speedometer of a police vehicle. [ 15 ] The result of this case law is that without any evidence to contradict the idea, I can rely on the presumption that Officer Hyde’s speedometer was working properly.

When Can this Presumption Work in a Defendant’s Favour? [ 16 ] A question which may arise from this conclusion is: why does the presumption work in the favour of the Crown in this case, when it may not help a defendant in a speeding trial who relies on their speedometer to counter Crown evidence that they were travelling over the limit? [ 17 ] In my view, the answer to the question is that in many speeding trials the Crown tenders evidence that the defendant was speeding based on some type of speed detection device – such as a radar, laser, or camera.

In these cases, the Crown also adduces evidence that the speed detection device was tested for its accuracy, both before and after the time it was used to measure the defendant’s speed. This is strong evidence that the speed detection device was functioning properly.

As such, the Officer’s evidence about the defendant’s rate of speed and the accuracy of the speed detection device rebuts the presumption that the defendant’s speedometer was working properly at the moment they received a ticket. [ 18 ] In cases where a police officer and a defendant are equally relying on speedometer readings as evidence of the defendant’s speed at the time of the offence, the outcome would rely on the particular facts of the case, and witness credibility. Conclusion [ 19 ] On the basis of the presumption of mechanical regularity, I find Mr. Rusu guilty of speeding.

I believe he was going faster than 80 km/hr, as he was described to have passed Officer Hyde and then other vehicles on the road while being followed by the unmarked police cruiser. I do, however, accept Mr. Santillana’s argument that it would be very difficult for Officer Hyde to maintain a perfectly consistent speed and distance behind Mr. Rusu, which would have been required to establish the exact speed Mr. Rusu was travelling. As a result of the fact that I have some doubt about exactly how fast Mr. Rusu was going, I find Mr. Rusu guilty of driving 95

km/hr in a 80 km/hr zone – which discounts the speed on the ticket in accordance with Officer Hyde’s margin for error in his estimation of speeds. The fine is $126.00. Heard on the 05 th day of April, 2023. Dated at the City of Calgary, Alberta this 20 th day of April, 2023. S. L. Bagg A Justice of the Peace of the Alberta Court of Justice Appearances: Ross Jackson for the Crown Roberto Santillana for the Accused