R. v. Zhang Date:, 2017 BCPC 276

Citation: R. v. Zhang Date: 20170925 2017 BCPC 276 File No: AH95224805-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA TRAFFIC REGINA v. CHENWEI ZHANG REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H. W. GORDON Counsel for the Crown: Cpl. K. Whitbread Counsel for the Defendant: Justine Davidson Place of Hearing: Victoria , B.C. Date of Hearing: April 7, 2017 Date of Judgment: September 25, 2017

INTRODUCTION [1] This case raises the narrow issue of whether the evidence of a laser instrument in a speeding charge must include either • evidence of verification of speed accuracy by measuring the speed of a moving vehicle on a highway by comparing the speedmeasured by an accurate radar unit by a qualified laser and radar operator, or • evidence from an expert, before the Court can accept as evidence the speed displayed on the laser used in the case that is being prosecuted. EVIDENCE [2] Mr.

Zhang was charged with excessive speeding under section 148(1) of the Motor Vehicle Act on a highway in the Victoriaarea. [3] Mr. Zhang does not dispute he was speeding, but disputes that the speed was more than 40 km/h over the posted speed limit,which puts it into the category of excessive speeding. [4] The only person to give evidence is Cpl. Whitbread, an RCMP officer then attached to the local Integrated Road Safety Unit.

He has been doing traffic enforcement for 10 years. [5] He testified that on January 6, 2016, he was monitoring southbound vehicles on Highway 17 in Saanich (more commonlyknown as the Pat Bay Highway) at Royal Oak Drive. Highway 17 is a four lane highway, two lanes in each direction divided by agrassy median. The posted speed limit on the highway is 80 km/h.

It was not raining but the roadway was wet. [6] He observed a southbound vehicle in the centre, or #1, lane travelling at a speed he estimated to be 130km/h. [7] He then targeted the vehicle with a laser unit, and it displayed a reading of 128 km/h at a distance of 220.1 metres. [8] As he began to close the distance on the vehicle, he observed the vehicle to be weaving between the #1 and #2 lanes as itpassed other vehicles. [9] Cpl. Whitbread testified that he is trained in and qualified to use the laser instrument, and he is now an instructor in the use ofthe instrument.

At the beginning and at the end of his shift, he had conducted tests on the laser as recommended by the manufacturerand, based on those tests, the laser was working properly. [10] On cross-examination, Cpl. Whitbread said his margin of error on his estimates of speed is ± 5-10 km/h. [11] Mr. Zhang sought disclosure of, among other things, the manual for the laser and a copy of the certificate of calibration. Neither was disclosed to Mr. Zhang. [12] Counsel for Mr. Zhang pointed out to Cpl. Whitbread that the manual suggests that the laser be certified once a year.

I notethere is no evidence of the length of time the laser had been in use prior to its use on January 6, 2016. [13] There is evidence of the speed of Mr. Zhang’s vehicle from two separate sources: the estimate and the reading from the laser. SUBMISSION [14] Mr. Zhang’s submission is that: 1. Based on the margin of error of Cpl.

Whitbread’s estimate of speed (±5-10 km/h), that evidence should not satisfy me beyond areasonable doubt that the vehicle exceeded 120 km/h, and is only capable of supporting a conviction of exceeding the speed limit by lessthan 40 km/h, an offence under section 146(3) and not section 148(1); and 2. Based on R. v. Vancrey, (OnCA), there is no evidence of verification of the accuracy of the laser tested againstthe known speed of a moving vehicle and that evidence is, therefore, unreliable. ANALYSIS [15] At the hearing, I was in the midst of writing my judgment in R. v.

Gjoka, 2017 BCPC 163, in which one of the issues was theratio of Vancrey and its authority. I discussed Vancrey with Mr. Zhang’s counsel in light of other authority. She provided me with twoBC cases in which she said Vancrey was followed. Those two cases were decisions of this Court, namely, R. v. Henderson, 2007 BCPC442 and R. v. Walker, 2009 BCPC 191. [16] Henderson and Walker are decisions of Judge Cowling involving charges of impaired driving.

In my view, neither decisiondirectly applies Vancrey, at least in this context. [17] In Henderson, at paragraph 23, Vancrey is cited by way of a quoted note from the decision in R. v. Snider,

(2006) O.N.C.J. 65: . . . the admissibility of measurements performed by a scientific instrument or device are admissible at common law provided that the

court is satisfied that the device was capable of making the measurement in question, that the device was in good working order, and thatit was properly used at the material time: see … R. v.

Vancrey reflex (2000), (ON CA) [18] In Walker, at paragraph 46, Judge Cowling simply repeats his citation of the note from Snider on the same point. [19] Without repeating all that I said in Gjoka on this point, Vancrey is simply authority that the evidence of a laser is admissible ifthe court is satisfied that it was capable of making a speed measurement, that it was in good working order and that it was properly used. [20] Vancrey is not authority, nor is it its ratio, that there must be evidence that the laser was tested for accuracy against the knownspeed of a moving vehicle.

There was that evidence in Vancrey, but the evidence is not insufficient in its absence. [21] I agree with Mr. Zhang’s submission that I should apply the limit of the margin of error of ±10 km/h to Cpl. Whitbread’sestimate of speed and apply it to the evidence of his testimony of 130 km/h. If I do apply the limit of the margin of error to the estimateof speed, the speed of Mr. Zhang’s vehicle could have been traveling 120 km/h. To convict Mr. Zhang of excessive speeding on thisevidence alone, I have to be satisfied that the speed was over 120 km/h. [22] I do not agree with Mr.

Zhang’s submission that I should not accept as accurate the other evidence: the speed displayed on thelaser device. A laser device is manufactured for and is capable of accurately measuring the speed of moving vehicles. This laser devicewas tested before and after use and shown to be in good working order and it was used by an experienced and properly trained policeofficer. DECISION [23] For that reason, I am satisfied beyond a reasonable doubt that Mr.

Zhang’s vehicle was travelling at 128 km/h in a posted 80km/h speed zone, and I find him guilty of excessive speeding under section 148(1) of the Motor Vehicle Act. The fine imposed is theminimum amount of $368. H. W. Gordon Judicial Justice