R v Hunter, 2023 ABCJ 249

In the Alberta Court of Justice Citation: R v Hunter, 2023 ABCJ 249 Date: 20231122 Docket: A83091234Z Registry: Calgary Between: His Majesty the King Crown - and - Bryan Delton Hunter Accused Oral Judgment of her Worship Justice of the Peace Sara L. Bagg Introduction [ 1 ] The trial of this matter was heard on September 1, 2023, and an oral judgment given on November 16, 2023. These reasons clarify but do not change my oral reasons. To the extent that they differ, these written reasons prevail. [ 2 ] On December 10, 2021, at 10:24 am, Bryan Hunter received a ticket for speeding 33 km/hr over the posted speed limit, contrary to section 115(2) (

p) of the Traffic Safety Act RSA 2000, c T-6 . The ticket was issued by Calgary Police Officer Sandeep Shergill. The Case for the Crown [ 3 ] At trial, Officer Shergill testified that he was conducting speed enforcement on eastbound Glenmore Trail in southwest Calgary. Permanent 60 km/hr signs were posted 600 metres back from his location. Officer Shergill testified that in the course of his duties he was operating an LTI 2020 laser device, on which he was properly trained and had tested, according to the manufacturer’s specified tests, both before and after his shift.

Accordingly, he confirmed the device could accurately detect the speed of moving motor vehicles in kilometres per hour, and distance in metres. Officer Shergill testified that as he monitored the eastbound traffic, he watched for the fastest vehicle, pointed the laser at the front grill area of that vehicle, and then pulled the trigger to obtain a speed reading. He stated that he then directed Mr. Hunter to pull over and issued him a ticket. [ 4 ] Given significant time which passed between the date of the offence and the time of the trial, Officer Shergill testified

honestly that he had no specific recollection of Bryan Hunter and could not independently recall the defendant’s speed. Officer Shergill advised that in his testimony he was relying on his notes, but also his general knowledge and practices when conducting traffic enforcement at that location, which he had done numerous times in the past. [ 5 ] I accept Officer Shergill’s testimony regarding signage, the testing of the laser device, and his conduct throughout the traffic stop. The Defence of Bryan Hunter [ 6 ] At trial, Mr. Hunter cross-examined Officer Shergill on the Crown’s evidence. Specifically, Mr.

Hunter drew attention to discrepancies and irregularities which he noted in the Crown’s disclosure. While the Crown objected at trial to Officer Shergill’s ability to clarify the contents of these documents as he was not their author, I find that Mr. Hunter focused his questions on aspects of the material which were plainly obvious to any reader. While I find that some of the issues raised by Mr. Hunter were immaterial to the question of his guilt, there were two relevant questions about the speed detection device used by Officer Shergill. [ 7 ] Firstly, Mr.

Hunter had Officer Shergill confirm that according to page 2 of the violation ticket in evidence, the device used to measure Mr. Hunter’s speed was the “LTI 2020 Laser # 6”. However, according to a May 31, 2022 letter from the Calgary Police Service which was included in Mr. Hunter’s disclosure, the laser used in the alleged offence was an “LTI 2020 Ultralyte LRB” with a City Decal number of “6598”.

While I find that “LTI 2020” is likely a shortened form of “LTI 2020 Ultralyte LRB”, the discrepancy between Laser “#6” versus “6598” is not as easily rectified. [ 8 ] Secondly, the May 31, 2022 letter provides that the laser device used by Officer Shergill was “placed into service” in May 2017. In the next paragraph this same letter states that the device was “in for repair” in March and October of 2016. This timeline is illogical. Decision [ 9 ] I find that these discrepancies and inconsistencies create doubt about precisely which device Officer Shergill used to measure Mr.

Hunter’s speed as it is recorded on his ticket. Because he lacked a specific recollection, Officer Shergill’s evidence of Mr. Hunter’s speed relied completely on the reading of this laser device. [ 10 ] As a result of the fact that the Officer had no specific recollection of Mr. Hunter and his speed, and the Court has a reasonable doubt about of the reliability of the technological evidence of the recorded speed, I acquit Mr. Hunter of the charge of speeding. Access to Justice [ 11 ] In addition to the legal issues raised by Mr.

Hunter, he also voiced concerns during his trial about the conduct of the Crown in his case. Here he was not referring to Alberta Crown Prosecution Service, but to the Calgary Traffic Court Counter – as a branch of Alberta Justice. [ 12 ] According to Mr. Hunter, after getting the speeding ticket on December 10, 2021, he pled not guilty online using the Traffic Tickets Digital Service (“TTDS”) and received online confirmation that he would be sent a trial notice by mail. Following this, Mr. Hunter was convicted in absence on January 4, 2022. He received no Trial Notice, but instead a Notice of Conviction.

Then, on January 12, 2022, Mr. Hunter and the Calgary Traffic Counter exchanged several e-mail messages. Mr. Hunter repeatedly sent proof of his early not guilty plea and asked for the opportunity to speak to the Prosecutor’s Office, or to attend to resolve the issue before a Justice of the Peace. Mr. Hunter received response emails from the Traffic Counter advising that the wrongful conviction in absence was possibly the result of a glitch which Information Technologies was investigating. In the meantime, Mr.

Hunter was advised about the process to apply to have the conviction set aside pursuant to s 38 of the Provincial Offences Procedures Act RSA 2000, c P-34 . One email, to which Mr. Hunter took particular exception, appears to be a standard form message outlining the process for completing a set aside application.

The message explains that should the defendant decide not to pursue the set aside, then the alternative is to pay their ticket. [ 13 ] As someone familiar with this process, I can see that the form email from the Calgary Traffic Counter was drafted with the goal of providing general information of value to a defendant convicted in absence. However, in the case of Mr. Hunter, who was writing to alert the Traffic Counter that he was somehow wrongly convicted, the suggestion to pay his fine amounted to a dismissal of his legal rights. In Mr. Hunter’s words “completely against the rule of law”. [ 14 ] In Mr.

Hunter’s circumstances, the glitch that was alluded to was discovered, and he was never required to make a set aside application before this trial date was set. Despite this, he objected to the fact that the error occurred in the first place, to how it was handled, and to the fact that, from the date he received his ticket, it took approximately 21 months for the matter to be heard. [ 15 ] Mr. Hunter’s submissions concerning the way his matter was treated demonstrate how traffic court has the potential to massively impact the public’s confidence in the administration of justice.

As a judicial officer, I am bound to ensure that the public sees and believes that this Court upholds the rule of law. For this reason, I provide the following: [ 16 ] The rule of law, to which Mr. Hunter referred, is the principle that every citizen, institution and leader in the country is subject to the same rules. This idea legitimizes the state’s power to enforce the law. Without the rule of law, there is no democracy; our Charter of Rights and Freedoms is founded on this principle:

Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“ Charter ”). [ 17 ]

Section 11 of the Charter specifically protects our legal rights and provides that any person charged with an offence has the

right to be presumed innocent until proven guilty in a fair and public hearing. Further, this hearing must occur within a reasonable time. The public’s ability to hold the state accountable through the trial process ensures that the law is properly upheld and fairly enforced. It also ensures that innocent people are not improperly punished. In these ways trials protect the public’s trust in the legal system, which encourages the public to respect the law and those who enforce and uphold it.

These ideas are equally important in every case and must be recognizable in every decision by each member of the justice system, including the police, the Crown, court administration, and judicial officials. [ 18 ] In addition to Mr. Hunter’s communications with the Calgary Traffic Counter he also raised his right to a timely trial. The 21 months from the date of his offence to the time of his trial exceeds the window contemplated by R v Jordan 2016 SCC 27 (“ Jordan ”).

In the recent case of R v DeMaria 2023 ABCJ 188 (“ R v DeMaria ”) , the Crown conceded that the Jordan framework and presumptive 18- month window applies to traffic matters. However, in R v DeMaria the Court concluded that the COVID-19 pandemic could be considered an “exceptional circumstance” pursuant to Jordan . As Mr. Hunter did not bring a Charter application, the applicability of the law to his circumstances is unknown. [ 19 ] Having acquitted Mr. Hunter given my doubts about the reliability of the Crown’s evidence, I also wished to recognize Mr.

Hunter’s dismay at being offered the alternative of paying his ticket when he was wrongly convicted after pleading not guilty. Mr. Hunter’s experience is a reminder that to maintain the rule of law the public needs uncompromised access to justice. Heard on the 1 st day of September, 2023 and the 16 th day of November, 2023. Dated at the City of Calgary, Alberta this 22 nd day of November, 2023. Sara L. Bagg A Justice of the Peace Alberta Court of Justice Appearances: E. Thompson for the Crown B. Hunter for the Accused