R. v. Gjoka Date:, 2017 BCPC 163

Citation: R. v. Gjoka Date: 20170607 2017 BCPC 163 File No: AH95136761-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Traffic REGINA v. MARLEN GJOKA REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H W GORDON Appearing for the Crown: Sgt. R. Stewart Counsel for the Defendant: C. S. T. Mackie Place of Hearing: Victoria , B.C. Date of Hearing: February 8, 2017 Date of Judgment: June 7, 2017

Introduction [ 1 ] Mr. Gjoka is charged with excessive speeding under section 148(1) of the Motor Vehicle Act . It is alleged that on February 4, 2016, he was driving a vehicle that was exceeding the speed limit by more than 40 km/h as it entered the business area of Saanich/Victoria on the Trans-Canada Highway where the speed limit had transitioned from 70 km/h to 50 km/h. [ 2 ] Mr. Gjoka takes issue with the accuracy of the laser unit used by the officer and what he describes as the contrary evidence of the two officers involved.

Evidence [ 3 ] This event occurred on the Trans Canada Highway in Saanich as it enters the business district of Saanich/Victoria, very near Uptown Shopping Centre. The highway is 4 lanes, two in each direction with a nearby left turn lane for eastbound traffic. [ 4 ] Approximately one kilometre north of this location the highway intersects with Tillicum Road, an intersection controlled by traffic lights.

The posted speed on the highway eastbound from Tillicum Road is 70 km/h. [ 5 ] The posted speed is reduced to 50 km/h as eastbound traffic on the highway approaches the next intersection of Saanich/Boleskine Roads, where the highway becomes better known as Douglas Street. [ 6 ] Several hundred metres before the Saanich/Boleskine Roads intersection, the highway curves to the right approximately 90° to a southbound direction. [ 7 ] Cst.

Klear, a Saanich police officer, stationed himself at the edge of Uptown Shopping Centre at a place where he could view the incoming traffic on the highway before the right turning curve. At the side of the highway were several other police officers, including Sgt. Stewart, who would receive information by radio from Cst. Klear of vehicles exceeding the speed limit. [ 8 ] Cst. Klear gave evidence that he measured the distance from his location to the back of the posted 50 km/h sign to be 350 metres. Before that sign on the highway and further from him was a standard warning sign signalling a speed change.

He said the speed sign was posted and visible. [ 9 ] The day was cloudy with a wet roadway. He said he had a clear and unobstructed view. [ 10 ] Cst. Klear was using an UltraLyte LRB LTI 20/20 laser unit. He testified that he had tested that unit at the beginning of his shift and at the end of his shift and it was working according to manufacturer’s specifications. [ 11 ] He gave evidence that he was trained in the use of a laser in 2001 and in 2008, the latter training on the use of the UltraLyte LRB LTI 20/20.

As part of that training, he has shown he can estimate the speed of vehicles accurately within ± 5 km/h. As a traffic enforcement officer, he tests the accuracy of his estimate on a daily basis. [ 12 ] At approximately 10:15 in the morning, Cst. Klear said he observed a vehicle approaching on the highway, within the 50 km/h zone, travelling at what he estimated to be 100 km/h. He said there was no other vehicle in front or beside this vehicle. [ 13 ] That prompted him to engage the laser unit.

Targetting the front of that vehicle, he said the laser unit gave a reading of 99 km/h at 256 metres from where he was standing. [ 14 ] As stated above, Cst. Klear was working with other Saanich police officers who were at the side of the highway. Cst. Klear was in radio contact with them and when he observed a speeding vehicle, he radioed them with the vehicle description and speed. [ 15 ] In this case, Sgt. Stewart was the officer receiving the call from Cst. Klear. Cst. Klear radioed that there was a white 4 door BMW approaching that had been travelling at 99 km/h. He observed Sgt.

Stewart stop that vehicle. [ 16 ] Cst. Klear was intensely cross examined, particularly on the point of testing the laser unit that day. [ 17 ] Although Cst. Klear did not make notes of testing the laser at the beginning and the end of his shift on that day, he was steadfast that everyday (and I infer he means everyday that he uses a laser) he tests it at the commencement and the end of his shift. This test is one recommended by the manufacturer of the laser.

He described the 4 portions of the test: an internal test which gives an audible beep (self test), a segment test, a scope alignment test and a zero velocity/known distance test. He also described how and where he conducts these tests. [ 18 ] He described the tone the laser gives. A high pitched tone indicates a speed has been captured. A low pitch indicates either no speed captured or a measurement error. [ 19 ] Sgt. Stewart gave evidence that he was located at a pull-out on the side of the highway. He understood Cst. Klear to say there was a white vehicle in the #1 (centre) lane travelling at 79 km/h.

He directed that vehicle to pull over and stop. It was a white BMW with a dealer licence plate. [ 20 ] When he approached the window, he informed the driver the he had been stopped for travelling at 79 km/h in a 50 km/h zone. [ 21 ] He then radioed Cst. Klear for confirmation of speed and distance. Cst. Klear corrected him that the speed was 99 km/h and not 79 km/h. [ 22 ] Sgt. Stewart thereby issued a ticket for excessive speeding under section 148(1) of the Motor Vehicle Act , and impounded the

vehicle under section 251(1)(

d) of the Act. [23] In giving his evidence, Mr. Gjoka testified that he travelled this route frequently. He drives 8 hours a day for a living. [24] He recalls the events of February 4, 2016. He said he was travelling at a speed of 65 – 70 km/h on this part of the highway. [25] He says when stopped, Sgt. Stewart told him he was doing 75 km/h. When he responded there was no way he was doing over70 km/h, he said Sgt. Stewart contacted the other officer (Cst.

Klear) on his handset to clarify some information, and it was then that Cst.Klear advised the Sergeant he had misunderstood him and that the speed of the vehicle was 99 km/h and not 79 km/h. [26] Mr. Gjoka testified his vehicle was travelling at a speed of 65 – 70 km/h at that time. He said he was basically following trafficand believes his vehicle was travelling at 65 – 70 km/h based on his speedometer. Submissions [27] Mr. Gjoka submits that there are two reasons why I should acquit him. He says, firstly, that as Cst.

Klear has no independentmemory of that day and his notes did not include mention of having conducted the tests, I should not conclude he did. As testing thelaser instrument is a crucial piece of evidence for the prosecution, he says I should give little weight to Cst. Klear’s evidence that it is hisstandard practice to do so at the beginning and at the end of each traffic enforcement shift and, therefore, he must have done so that day. [28] Secondly, he says I am faced with contradictory evidence on the crucial point of speed of his vehicle and, on the principles of R.v.

W.(D.) [1991] 1 SCR 742, , I should acquit. Analysis [29] It seems to me as a general proposition, if I do accept that Cst. Klear tested the laser instrument before and after enforcementthis day, that on the basis of all of the other evidence of the officer, the evidence of the speed measured by it is prima facie proof that itis in fact accurate. [30] Then, I have to decide if the evidence of Mr. Gjoka causes me to have reasonable doubt that it accurately measured the speed ofhis vehicle, or perhaps that it measured the speed of a vehicle other than the one Mr.

Gjoka was driving. [31] My task is to be satisfied beyond a reasonable doubt that the speed of Mr. Gjoka’s vehicle was as charged (ie. more than 40km/h over the speed limit). If I am not so satisfied, was it between 65 and 70 km/h (drawing a fine of $138) as Mr. Gjoka testified. [32] Addressing Mr. Gjoka’s first submission, am I satisfied beyond a reasonable doubt that at the beginning and at the end of hisshift on February 4, 2016 Cst. Klear tested the laser that he was using that day? [33] Cst. Klear does not have an independent memory of what he did on February 4, 2016.

The memory that he does have of trafficenforcement that day is a reconstruction derived solely from his contemporaneous notes. [34] He made notes related to the specific incident that resulted in this violation ticket. He did not make notes related to testing thelaser instrument. [35] Cst. Klear’s evidence on testing is based on what he says he does on each day that he conducts traffic enforcement using alaser. In

summary, that evidence is that at the beginning and the end of his shift, he invariably tests the laser he will be using that day. And he would have done so that day. [36] Mr. Gjoka says that evidence does not have sufficient weight to meet the criminal standard necessary to prove a critical elementof a charge. [37] In my view, the assessment of the weight I should give to evidence draws in, at least in this case, the context of the evidence. [38] Cst.

Klear has been a police officer with the Saanich Police Department since 1991 and for a number of years, at least since2011, he has been assigned to traffic enforcement. [39] He has had training in the use of radar and laser. He uses the laser instrument on a frequent basis. [40] Primarily for those reasons, I give significant weight to his testimony that he tests such instrument at the beginning and the endof each shift on which he uses it. In my view, this evidence was not shaken on cross-examination, it is logical and there is no evidence tothe contrary.

On the evidence as a whole, I am satisfied beyond a reasonable doubt that Cst. Klear tested the laser on February 4, 2016. [41] Cst. Klear was cross-examined intensely and, on some points, repetitiously. Towards the end of that cross-examination, Iconclude some of his responses were out of frustration in answering the same point, rather than a lack of knowledge about the laserinstrument. I conclude from his training and experience, particularly on the laser instrument, he can and did on this occasion use itproperly and accurately. [42] On the key issue of the speed of Mr. Gjoka’s vehicle, Cst.

Klear estimated the speed of the vehicle that was later determined tobe the vehicle Mr. Gjoka was driving, to be 100km/h inside the 50km/h speed zone. The laser displayed a speed of 99 km/h and at adistance that put the vehicle within the 50 km/h zone. [43] Mr. Gjoka testified his vehicle was travelling at a speed of 65 – 70 km/h at that time. He said he was basically following trafficand believes his vehicle was travelling at 65 – 70 km/h based on his speedometer. [44] I draw from his testimony in chief and in cross-examination that he bases the speed of his vehicle on its speed in relation to

other vehicles around him and on his driving experience that the speed did not feel to him to be any higher than 65 – 70 km/h and it is notbased on a specific observed speed on his speedometer.

That is why he put the speed as a range rather than as a specific number. [45] His recollection suffers from the same difficulty of many drivers stopped and charged with a traffic infraction; that difficultybeing the driver does not always know precisely where the officer made his or her observation and, more significantly, the first time thedriver has had to recollect what happened is a minute or two after the time of the alleged offence when the officer stops the vehicle andtells the driver why the vehicle was stopped.

It is a reconstruction of the event, albeit only a few minutes later. [46] I do not believe Mr. Gjoka’s testimony of the speed of his vehicle is accurate or credible. [47] Mr. Gjoka, in applying the principles of W.(D.), invites me to be left in reasonable doubt by his evidence or on the evidence thatI do accept. [48] I am not left in reasonable doubt by Mr. Gjoka’s evidence for the reasons above. The evidence that I do accept, primarily thatof the laser reading, which corroborates, or perhaps more accurately, confirms the estimate of a trained and experienced trafficenforcement officer.

Those are two strong pieces of evidence of speed. [49] The evidence of the laser is reliable, credible and compelling. Laser has been used in the enforcement of speed of traffic for anumber of decades. [50] From my reading of decisions, in the last decade at least, it is now a notorious fact that, properly tested and used by a trainedoperator, the laser provides a reliable and accurate calculation of the speed of that moving vehicle and the distance from the laser at thetime the reading was taken. [51] Mr. Gjoka cites two decisions that suggest I should not give that laser reading a great deal of weight: R. v.

Tummillo, , (MBCA) and R. v. Hofland, 2011 ONCJ 40 (Justice of the Peace Dechert). [52] Tummillo is cited for the observation of Justice Twaddle at paragraph 7: The theory may be correct, but perhaps I, as a scientific layman, can be forgiven for wondering how a test of the device’s ability torecord a stationary object as one that is not moving proves it to be functioning properly when measuring the speed of a moving object.

For the theory to be accepted, there must be, in my opinion, either evidence from an expert or admissible evidence that the tests are thoseapproved by the manufacturer of the device for checking its condition. [53] In my view, neither of these requirements of proof is any longer required by the courts. [54] The other case cited, Hofland, is a useful review of the case law in Ontario in the past decade. Mr.

Gjoka seeks to have mefollow the “Vancrey” principle that for a laser to be accepted as accurately determining the speed of a vehicle, the Court must haveevidence, from a trained and experienced officer using a laser, that the officer had tested the laser before and after its use in accordancewith manufacturer’s recommended tests AND its accuracy was tested by comparing its displayed speed with an accurate radar unit. [55] R. v. Vancrey, (ON CA) has been cited to me before on similar cases as being persuasive for the sameproposition.

As the issue of what evidence is necessary to prove the accuracy of a laser unit is often raised in speeding cases, I address itmore thoroughly than I might otherwise have. [56] It is useful to consider more deeply Vancrey and the cases in Ontario that follow after it. The following passages of the reasonsof Feldman J.A. in Vancrey should suffice: [1] The appellant appeals her conviction for speeding, contrary to s. 128 of the Highway Traffic Act, R.S.0.1990, c. H.8. The Crownconsented to leave being granted, as the issue raised by the appeal was one of public importance.

The appellant's speed was measured byan L.T.I. 20-20 Marksman Laser Speed Detection Device.

The issue before the court is the adequacy of the evidence presented by theCrown of the accuracy and reliability of the device to measure the speed of the appellant's vehicle on the date of the offence. [57] After citing the passage above from Tummillo, he says at paras 21 and 22: [21] The Crown seeks to uphold the conviction on the basis that there was led at trial prima facie evidence of the accuracy andreliability of the particular laser unit, consisting of the performance of the manufacturer's tests for good working order both before andafter the use of the device, together with the earlier verification of the accuracy of the laser unit for measuring the velocity of movingvehicles on a highway, when compared with an accurate radar unit by a qualified laser and radar operator. [22] In my view, the position of the Crown is correct.

The court received evidence that the officer who operated the laser device wastrained and experienced and that he tested the device both before and after its use in accordance with the manufacturer's instructions toensure that it was operating properly on the date in question. The court also received evidence of the accuracy of the device formeasuring the speed of vehicles on a highway by comparing its readings with those of an accurate radar unit.

The radar test provides theindependent guarantee of the accuracy of the particular laser unit to measure the speed of a moving vehicle. [58] Since that decision, judges in the Ontario Court of Justice on appeals of convictions for speeding have held that it is notnecessary for proof of a laser’s accuracy for the Crown to put forward evidence of the speed displayed on the laser having beencompared with the speed displayed by a radar on a moving vehicle. [59] The Justice of the Peace in Hofland cites two such decisions of the Ontario Court of Justice: R. v. Le [2002] O.J. No. 894 and R.v. Odusanya [2002] O.J.

No. 3209. [60] In Le, Fairgrieve J. says at para 14:

In my opinion, regardless of whether the reliability of laser devices to measure the speed of motor vehicles is regarded as so “notorious” that it cannot be disputed by reasonable people, or whether one accepts the judgments in Delangis [1999] J.Q. no. 4936 , and Mukasa , [2001] O.J. No. 262 , as demonstrating prior judicial acceptance of the device’s reliability, it is now appropriate for other courts to take judicial notice of that fact.

Laser devices have been used for this purpose by law enforcement agencies for almost a decade, the evidence obtained through their use has been routinely admitted as reliable, and at least one provincial appellate court has held that their reliability is so well-known that it requires no evidence to establish it. [ 61 ] According to Hofland , Lane J. in Odusanya adopted the reasoning in Le and said: That where there is no evidence raising any doubt or suggesting that the device was not operating properly according to manufacturer’s specifications or had not been tested on the day in question, then its results ought to be accepted. [ 62 ] Whether Vancrey can be distinguished because in that case there was evidence of a speed comparison with radar on a moving vehicle or that subsequent decisions have held such evidence is not necessary if the other evidence mentioned in Vancrey is present, I adopt the reasoning in Le and Odusanya .

Decision [ 63 ] On all of the evidence I am satisfied beyond a reasonable doubt that Mr. Gjoka was driving his vehicle at a speed of 99 km/h in a 50 km/h speed zone and is guilty of excessive speeding.