R. v. Duplissie Date:, 2018 BCPC 43

Citation: R. v. Duplissie Date: 20180221 2018 BCPC 43 File No: AH93588039 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JEREMY THOMAS DUPLISSIE REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE S. JOSEPH-TIWARY Counsel for the Crown: Corporal S. Martin Counsel for the Defendant: C. Waker Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 13, 2017 Date of Judgment: February 21, 2018

[1] Mr. Duplissie is charged with driving at an excessive speed. Corporal Martin prosecuted and is the only witness for Crown. Miss Waker is counsel for defence. [2] Preliminary objections were taken by defence to disclosure provided. Those objections were withdrawn. Defenceacknowledged Crown had met its disclosure obligations.

The trial then proceeded. [3] The Court heard that the Corporal has been policing since 2002, is trained and certified in the use of conventional radar andlaser devices as well as multimode radars, with an ability to visually estimate speeds of moving vehicles within a margin of error of +/-8km/hr. Additionally, he is both a conventional radar and laser instructor. [4] On October 12, 2016 he was operating an unmarked Tahoe vehicle, which had a dash mounted Stalker dual DSR radar unit.The device was tested both at the start and at the end of his shift as per the manufacturer’s specifications.

He was satisfied that it wascapable of measuring the speeds of vehicles. [5] Neither the location nor the 50km/hr. speed limit is disputed. [6] The officer noted a lone motorcycle proceeding northbound towards him in the location of the 10,300 block of 272 Street,Maple Ridge, BC. He visually estimated it at 100 km/hr. [7] He activated the dash mounted radar in his unmarked Tahoe and obtained several readings of the lone vehicle ranging from 102to 106 km/ hour. That northbound motorcycle passed the Officer’s Tahoe. The officer activated his lights, maintaining visual continuityof the target motorcycle.

It was stopped at the104 intersection, a block from where the officer first estimated its speed. The driver’sidentity was confirmed with a picture British Columbia Driver’s Licence. Defence evidence [8] Mr. Duplissie testified that he was riding a brand new Harley motor cycle requiring breaking in. He maintained he was doing80 to 82 km/hour, at which speed the rev would be around 3500 rpms. The Court heard that he was in about the third gear as the revs hadto be around 3500-4000 RPM.

He opined if he was going faster, the revs would be “a lot higher than that, around 5000 would be real---really noticeable to me…” and would damage the engine. He was also heard saying he was looking down right when it was happeningand saw gear 3, and looked at the ‘speedo’.

Defence arguments [9] Miss Waker argues that there has been a failure by the officer to keep contemporaneous notes and this impacts the reliability ofthe Crown evidence heard, in particular as to: • Serial number of tuning forks used to test the radar in order to substantiate its accuracy; • Patrol car speed when the radar reading was made and • Distance to the disputant’s vehicle and the length of his observation when he made his visual estimation. [10] She relies on R. v Tweedley

(2013) BCSC 910 to maintain that there must be contemporaneous recording. In Tweedley, the BCSupreme Court had to determine if a search of the accused‘s premises was constitutional. The notes of the testifying officer, who firstattended the scene (besides that of another), were lost. He maintained his recollections of the event had gained greater clarity with thepassage of time. In rejecting his evidence, the Court found that his notes were particularly relevant (para 142).

They had been used todraft the ITO for search of the apartment and were foundational to the determination of whether the search conducted was constitutional(para 166). Other cases cited related to impaired driving where the Crown officer gave evidence of indicia of impairment not recorded intheir notes and the Court found that significant facts were not recorded. [11] It is also defence submission that the Duplissie evidence of his speed being only 32 km/hr. above the speed limit remainsunchallenged, thus raising a reasonable doubt to the allegation of excessive speed.

Case law [12] The BCSC in R. v Keenan found : “…………… in order to conclude that a radar device registered an accurate speed, it must only be shown that the operator of the deviceknew how to operate the device and that it was working properly.” The Court also ruled that there is no requirement for Crown to produce or substantiate the accuracy of tuning forks used to check thecalibration of the radar used in speed enforcement.

The Court said the lower Court decision in R v Bourquet requiring production oftuning fork certifications was bad law, with the Alberta Court of Appeal having ruled that it is not necessary for the Crown to prove theaccuracy of the tuning forks used. (1986 Calgary Appeal 17924) In R. v Delong

(2007) BCPC 129, Provincial Court Judge Moss regarded credible parts of an officer’s evidence of a conversationpertaining to explanations offered at the scene saying “Notes are intended as an aide memoire, they are not the memory” itself. No notesof the conversation were made and the officer’s account was challenged by defence. More recently in 2015, PCJ Woods in R. v Naidu(2015) BCPC 167reiterated that notes serve as aids to memory and explained that officers are required to multi-task and respond to theimperatives of evolving and fluid situations.

Reliance was also placed on R. v Medway where the court said “Upon reviewing authorities“it can be safely stated that an officer is required to note significant observations”

Defence credibility and reliability challenge of Crown evidence heard (

a) Radar serial number evidence [ 13 ] Ms. Waker in cross-examination took issue with the officer, who had tested the permanently dash mounted radar in the police cruiser utilized by him, for not having noted the serial number. [ 14 ] The existing case law in British Columbia as articulated in Keenan referenced above requires a qualified operator to test the device prior to it being utilized.

There is no requirement for the production of radar calibration certificates such that some nexus need be established between the device used and a particular calibration certificate. [ 15 ] The defence failed to make any cogent arguments as to the significance of the serial number of permanently dash mounted radar in the police cruiser used. The device was wired in the cruiser utilised. It had been tested by a qualified operator before use in enforcement.

It was found to be working properly. [ 16 ] Specifically at defence request, the Crown disclosed a calibration certificate of the permanently mounted radar in their possession.

There was other evidence too, that any removal of the permanently mounted device would have been undertaken and documented by the officer. [ 17 ] I am additionally mindful that there is no evidence before me that the radar manual used for cross-examination applies to Stalker dual DSRs with specific serial numbers such that the serial number took a particular significance in informing if the correct manual had been brought by Crown. (b)Tuning fork serial number [ 18 ] The Crown evidence is that the tuning forks used are kept in the pockets of the vehicle in which the device is mounted.

They are “labelled with the police serial number, the call sign of the police vehicle, RM 3402”. [ 19 ] The officer made notations of the speeds of the tuning forks associated to the vehicle.

He says he compared the speeds that were obtained in the course of the calibration checks and had there been an issue, the radar would not have produced the same speeds listed on the tuning forks and recorded by him. [ 20 ] With the BCSC in Keenan having categorically found, there is no requirement in BC for Crown to prove the accuracy of the tuning forks used to test the radar device, I am unable to find the serial number to be of material relevance such that officer credibility is impacted. (

c) Failure to note patrol vehicle speed [ 21 ] Page 4 of the Manual explains the workings of the radar device when operated in the “Opposite Lane Moving Mode”, that is, the mode in which it was utilized by the officer.

It stipulates that the device subtracts the patrol speed from the closing speed to determine and provide the target speed. [ 22 ] On Page 14 of the Manual under the caption “Opposite Moving mode” a cautionary instruction for the operator appears: “Be sure the patrol speed corresponds to the vehicle speedometer”. [ 23 ] The officer was heard to say in cross-examination that he had made comparisons of the patrol speed with the vehicle speedometer earlier and did not think it necessary to do so at the time when the reading itself was made.

He further said that the permanently mounted radar unit’s speed sensor is wired to the vehicle’s speed sensor. It is the device that does the comparison of the vehicle speed sensor to the Doppler shift. I have no reason to disbelieve the trained officer’s evidence in respect of a cautionary note pertaining to how he operates the device. [ 24 ] When then asked about the relevance of that cautionary instruction, he also explained that not all radars are wired so. [ 25 ] I am unable to find his credibility impacted having regard to the clarifications offered. (

d) Speed estimation length and distance [ 26 ] Officer Martin had observed the motorcycle at approximately the 10,300 block of 272 Street, visually estimated it at 100km/hr. and obtained radar readings of it. As it passed him, he u-turned and followed it with a stop occurring one block from when it as estimated. He stated in forthright fashion he had no notes as to the length of his observation.

He could say it would be an estimated 2 to 3 seconds and that it was within the operating range of the radar. [ 27 ] The Court heard that the trained officer had been policing for some 14 years with the ability to estimate speeds within a margin of error of plus/minus 8km/hr., when compared against speed measuring devices. [ 28 ] The events described are of a fluid situation. A lone vehicle was travelling towards the officer, who not only made a visual estimate, but proceeded to obtain radar reading prior to the vehicle passing him. He then maintained visual continuity to stop it.

I have no reason to not accept the officer’s evidence that he had sufficient visual of the target to make a visual estimation and obtain the reading. There is no evidence of any obstructions or interferences that could have impacted his abilities to make that estimate and obtain a reading of the lone vehicle coming towards him. [ 29 ] In

summary , on the issue of contemporaneous recording of evidence, the serial numbers are not of material significance. It is not challenged that the observations and stop all occurred in a block. A somewhat onerous burden would be placed on an officer, focused on gathering evidence of a fluid situation, to be required to note with precision the time span, or how far away the subject was when estimated, or a radar reading is taken of a rider approaching him at speed. As the Court in R. v Naidu said “it would necessarily impose

restraints on their ability” to multi-task, that is maintain visual, follow and issue a violation ticket. The Court was presented with cogent rational evidence of the speeds of the tuning forks used with notations of that and speeds observed. The testifying officer remained unshaken as to his observations. The reading is corroborated by the speed estimation. I am unable to find there was a danger here of importing evidence of other scenarios. Significantly, it is unlike Tweedley w here notes of the incident had been lost by Crown.

Prima facie case [ 30 ] At the end of the Crown’s case, with a qualified officer having tested the radar and the evidence of jurisdiction, identity and the applicable speed limit heard, a prima facie case is made out of the motorcyclist doing fluctuating speeds of 102 to 106km/hr. in a 50 km/hr. zone. Defence evidence came from Mr. Duplissie. Analysis [ 31 ] I am mindful where there is a prima facie case, the burden of proof does not shift to defence. The accused does not have to establish a defence or an excuse. He may by raising a reasonable doubt be acquitted. In R v Scherbey

(2017) BCSC 1638, the BCSC said a reasonable doubt can arise from evidence adduced by Crown or the defence evidence. (Para 39 of the decision). [ 32 ] In the landmark decision of R v W(D), the Court stated 3 essential questions must be considered where the defence evidence negates an element of the offence or raises a defence: • If believed, an acquittal must result; • Even if not believed, nonetheless, if left in reasonable doubt by it, you must still acquit; and • Even if not left with reasonable doubt, the Court must on the basis of evidence it accepts consider if the Crown has discharged its burden of proving its case beyond a reasonable doubt. [ 33 ] Mr.

Duplissie says he looked down every once in a while to say he was doing 82km/hr. at the most. He admits to speeding 32km/hr. above the speed limit. [ 34 ] Mr. Duplissie also avers to cautiousness maintaining he was breaking in a brand new Harley. However, his other evidence is he had then already owned it 4 to 5 months and he had also ridden it about 3000 to 4000 km before that day. He also expressed certainty to being in about gear 3 “kind of like when right as it was happening”, and that even at 90km/hr.; the rev would have been higher and noticeable. At the time, Mr.

Duplissie was riding his Harley in a rural area of Maple Ridge, BC. [ 35 ] When he was seen approaching in the rural area where municipal speeds applied, an officer, of some 14 years policing experience, estimated him at double the municipal speed, that is, doing 100km/hr, a significantly higher speed than defence contends. Having regard to the officer’s s margin of error, that puts him between 92 to 108km/hr.

A tested radar that had been found to be working properly, and operated by a qualified operator, measured his speed to be fluctuating between 102 to 106 km/hr., that is at a higher range of the estimates of his speed made at the time . The officer watched him proceed to go pass him, and only then, engaged his police lights to follow and stop him. [ 36 ] Mr. Duplissie is not to know when his speed was estimated or a radar reading of the Harley “happened”. In looking down once every while during his journey, he cannot aver to his speed at the time police gathered evidence of his speed that day.

I do not believe that when he was estimated and a reading was taken, he was doing 80 to 82km/hr. at the time. [ 37 ] Significantly both the estimation and readings all occurred quite quickly, such that, the Harley only travelled one block from the time of initial estimation to the following and actual stop. I am unable to find that a once in a while observation raises any reasonable doubt to the measured speed obtained by the officer. Finding [ 38 ] I accept Crown’s evidence. There are 2 speed indicias before the Court.

The fluctuating measured speed of 102 to 106, obtained with the tested radar operated by a qualified operator, is corroborated by the speed estimations of an experienced officer. I find that Crown has discharged its burden of proof beyond a reasonable doubt that the disputant was doing 106km/hr. in a 50km/hr. zone and is guilty of excessive speeding. The applicable fine is $368.00 and that is imposed. Dated 21 February, 2018 ___________________________ Judicial Justice Joseph-Tiwary