R. v. Dinur Din Soungatulin Date:, 2017 BCPC 15

Citation: R. v. Dinur Din Soungatulin Date: 20170127 2017 BCPC 15 File No: AH90114895 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DINUR DIN SOUNGATULIN REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE B. BURGESS Counsel for the Crown: Cst. Doane Counsel for the Defendant: Cory Armour Place of Hearing: Kelowna , B.C. Date of Hearing: December 1, 2016 Date of Judgment: January 27, 2017

[ 1 ] Mr. Soungatulin is before the court on a single count Violation Ticket, AH90114895. This is an allegation of “speeding” contrary to section 146(3) of the Motor Vehicle Act . [ 2 ] There was one witness, Constable Doane, who testified on behalf of the Crown. [ 3 ] Cst. Doane testified that since he commenced with the RCMP in 2007, he has been on both general duty and traffic duties, currently assigned to the Central Okanagan Traffic Services. He has been with COTS for 2 years, doing traffic duties daily. He is a qualified laser operator, having qualified as such in October 2012. [ 4 ] On May 10, 2016, Cst.

Doane was doing speed enforcement on Highway 97 in Kelowna, British Columbia. At the start of his shift, he tested the Pro Laser 4 that he was using that day in accordance with the manufacture’s checks and found it to be working properly. [ 5 ] May 10, 2016 was a clear sunny day and the roads were dry. Cst. Doane was stationary on Highway 97 at RPM Automotive, 150 to 200 meters east of Kirschner in Kelowna, British Columbia. The sun was to the officer’s back. His focus was on eastbound traffic. He described Highway 97 at that location as six lanes, three eastbound and three westbound.

The roadway is a provincial highway with a speed limit of 60 km per hour as posted by the Ministry of Transportation. There was a speed sign 1 km west of the officer’s location. [ 6 ] Cst. Doane testified that he observed a black sedan eastbound in the center lane. The vehicle appeared to be catching up to vehicles in front. The vehicle changed lanes to the fast lane and passed vehicles. The officer observed the vehicle for 2 to 3 seconds. He estimated the speed of the vehicle to be 90 to 100 km per hour.

Using the laser, the officer got a speed reading of 97 km per hour at a distance of 232 meters as the vehicle approached him. [ 7 ] Cst. Doane described that the Pro Laser 4 is vehicle specific. He testified that the distance was well within the operating range of the laser. He watched the vehicle the entire time and stopped the vehicle. Mr. Soungatulin was the operator of the vehicle. At the traffic stop, Cst. Doane showed Mr.

Soungaultin the laser reading. [ 8 ] There was no cross examination of the officer. [ 9 ] The Disputant argues that it is necessary for the laser to be tested “before and after”, meaning that the laser must be tested and found to be working properly both before and after the use of the device by the officer to detect the speed of a vehicle. [ 10 ] The Disputant provided two cases. The first is R. v. Halliday, [1995] A.J. No. 1201, DRS 96 -04896, A0948-858-73C, Alberta Provincial Court Traffic Division.

The officer gave evidence that he was trained in the Multnova Speed Recording Instrument and that he had set it up and tested it in accordance with the training he received. The court found that the officer had turned on the instrument and concluded it was working properly as it had completed a self test. The officer gave no evidence of the estimation of the speed of the subject vehicle. [ 11 ] The court concluded that a self test was not sufficient evidence for the court to conclude beyond a reasonable doubt that the instrument was working properly.

This case is distinguishable as the instrument being used seems to be a photo-radar device, not a laser device as in this case and also on the basis that cross-examination of the officer revealed an inconsistency of the evidence which gave rise to a reasonable doubt. [ 12 ] The second case provided by the Disputant is R. v. Soungie, [2003] O.J. No. 2338 , Ontario Court of Justice. The officer was using a radar device installed in his vehicle. The officer’s evidence in chief was that he tested the unit at the beginning and at the end of his shift and found it to be in proper working order.

On cross examination, the officer was asked, “When last did you have your radar gun checked in the car?” His response was, “Oh, at the beginning of my shift, as I said, when I first went out in the morning somewhere around two hours before I stopped you.” [ 13 ] The court then reviewed a number of Ontario and Quebec cases regarding the testing of radar and concluded that the apparent trend was the requirement that testing take place before and after monitoring the Defendant’s speed.

The court concluded that the officer’s testimony was equivocal, in that in direct evidence he said he tested the radar before and after but on cross-examination he only tested it before. [ 14 ] The Disputant argues that the laser used by Constable Doane needed to be tested before and after the measuring of the disputant’s vehicle’s speed. [ 15 ] The question becomes whether, like in Ontario, the trend, or law in British Columbia, is that the speed measuring device, in this case a laser, must be checked before and after its utilization by the officer to determine the speed of the Disputant’s vehicle. [ 16 ] A review of the British Columbia law is in order.

While radar and laser speed detection/measuring devices are different instruments working on different scientific principles, both require the operator to be trained in the operation of the device and both need to be tested to ensure that the device is operating properly. The cases to be reviewed are cases where speed determination involved either a radar or laser device. Radar cases will be reviewed first followed by laser cases. [ 17 ] In R. v.

Keenan 1994 CarswellBC 550, [1994] B.C.W.L.D. 911, 22 W.C.B. (2d) 615, 3 M.V.R. (3d) 21 , the officer using radar testified that at the start of his shift he had tested the radar and found it to be working correctly. There was no evidence as to testing the radar after the speed measurement. [ 18 ] In R. v. Khadikin 1999 CarswellBC 2483, [1999] B.C.J. 2575, 44 W.C.B. (2d) 271 , the officer testified that he tested the radar unit he was using before and after his involvement in the investigation.

[ 19 ] In R. v. Lising , 2000 CarswellBC 1477, 2000 BCSC 1003 , [2000] B.C.W.L.D. 1415, 47 W.C.B. (2d) 48, the officer testified he had tested the radar for accuracy about 30 minutes before and found it to be operating with the manufacturer’s specifications. There was no evidence as to testing the radar after the speed measurement. [ 20 ] In R. v. Holt 2002 CarswellBC 200, 2002 BCSC 194 , 53 W. C. B. (2d) 138, the officer’s evidence was that he conducted appropriate tests of the radar unit. When those tests were conducted was not specified. [ 21 ] In R. v.

Westlake , 2003 CarswellBC 3630, [2005] B.C.W.L.D. 1759 , the officer tested the radar before and after its use and that the radar was working properly and passed all tests. [ 22 ] In R. v. Lambert 2009 CarswellBC 2308, 2009 BCPC 261 , the officer testified that he tested the radar “that day” and found it to operating correctly. There was no evidence regarding the timing of the testing of the radar. [ 23 ] In R. v. Duminuco 2015 CarswellBC 3110, 2015 BCSC 1965 , [2015] B.C.J. No. 2331, 125 W.C.B. (2d) 295, the officer testified that he operated a handheld radar that had been tested and was operating properly.

When the test took place was not specified. [ 24 ] In R. v. Westgate 2013 BCSC 916 , the officer testified he tested the laser before and after his shift and found it to be working in accordance with the manufacturer’s specifications. [ 25 ] In R. v. Loo 2013 BCSC 2492 , the officer testified he tested the laser that day in accordance with manufacturer’s specifications and found it to be working properly. When the test was conducted was not specified. [ 26 ] In R. v. Mohammad 2015 BCSC 2525 , the officer tested the laser before and after his shift and it was operating as it should. [ 27 ] In R. v.

Klos 2015 BCCA 360 , the officer’s evidence was that earlier that day he tested the laser and was satisfied it was “working flawlessly.” There was no evidence as to testing the laser after the speed measurement. [ 28 ] The cases regarding radar and lasers vary regarding the testing of the device used. In some cases the timing of when the device was tested is not specified.

In some cases the officer’s evidence was that the device was tested before use and in other cases the device was tested before and after its use. [ 29 ] None of the British Columbia cases held that it was necessary to test the radar or laser both before and after its use to measure the Disputant’s speed. The conclusion therefore is that it is not a requirement in British Columbia that the device used, that is either a radar or laser, be tested both before and after its utilization to measure the speed of a vehicle. [ 30 ] In R. v.

Keenan , the court states at paragraph 24, In order to conclude that a radar device registered an accurate speed, it must only be shown that the operator knew how to operate the device, and that it was operating properly. [ 31 ] This view was also set out in R. v. Kkadikin .

The court reviewed the law and stated at paragraph 15, The assertion of qualification, together with a description of the test undertaken, is a sufficient foundation for the reception of the evidence… Unchallenged, the assertion of qualification and experience on the type of device, (i.e. radar), coupled with evidence that the equipment was tested and working, will, if accepted, found a conviction. [ 32 ] Cst.

Doane gave evidence that he observed the subject vehicle for two to three seconds and it appeared to him to be catching up to vehicles in front, it also passed vehicles and it appeared to be travelling at 90 to 100 km per hour. The officer did not give evidence as to his ability to visually estimate the speed of an approaching vehicle. [ 33 ] Cst. Doane was a qualified laser operator. He had tested the laser and found it to be working properly.

He utilized the laser to obtain the speed of a specific vehicle, the vehicle operated by the Disputant. [ 34 ] The officer’s testimony was not challenged in cross-examination nor was there evidence to the contrary regarding the speed of Mr. Soungatulin’s vehicle. There was nothing to suggest that the laser was not working properly when it was utilized by the officer to obtain the speed of the Disputant’s vehicle.

Therefore, without a challenge of the accuracy of the laser and no evidence contradicting the Crowns’ evidence, there is nothing which would give rise to a reasonable doubt as to the accuracy of the laser speed reading obtained by the officer. [ 35 ] The Motor Vehicle Act section 146(3) states: If the minister responsible for the administration of the Transport Act has caused a sign to be erected or placed on a highway limiting the rate of speed of motor vehicles or a category of motor vehicles driven or operated on that portion of the highway, a person must not, when the sign is in place on the highway, drive or operate a motor vehicle on that portion of the highway at a greater rate of speed than that indicated on the sign for that category of motor vehicle. [ 36 ] I am satisfied that on May 10, 2016, Constable Doane was a qualified laser operator and that he had tested the laser unit and that it was working properly.

He observed the Disputant’s vehicle approaching and catching up to other vehicles. He estimated the speed of the vehicle to be 90 to 100 km per hour. He targeted the vehicle with the laser device and got a reading of 97 km per hour. The posted speed limit was 60 km per hour. [ 37 ] The Crown has proven its case beyond a reasonable doubt and I find Mr. Soungatulin guilty of this offence. The fine will be the ticketed amount of $196.00 payable by March 31, 2017. Judicial Justice of the Peace B. Burgess

Provincial Court of British Columbia