R. v. Ma, 2013 ONCJ 92

COURT FILE No.: CAMBRIDGE 4461 999 11 10888 DATE: 2013-02-26 Citation: R. v. Ma, 2013 ONCJ 92 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — QUAN MA Before Justice of the Peace James Ziegler Heard on November 7th, 2012 Reasons for Judgment released on February 26th 2013 Student-at-Law J. CARNEGIE ........................................................................... for the prosecution The defendant QUAN MA on his own behalf JUSTICE OF THE PEACE ZIEGLER: APPLICATION FOR STAY OF PROCEEDINGS UNDER

SECTION 24 [1] The Defendant Quan Ma is charged on the 12th of August 2011 at the City of Waterloo with drive a motor vehicle on ahighway while performing a stunt to wit: speeding in excess of 50 km/her over the posted speed limit, contrary to section 172(1) of theHighway Traffic Act, and further, being the driver of a motor vehicle unlawfully failed to surrender a licence for reasonable inspectionupon demand of a police officer, contrary to Section 33(1) of the Highway Traffic Act. [2] The Defendant Quan Ma, on November 7th 2012 has brought an application under

section 11(

b) of the Charter ofRights and Freedoms for relief under

section 24 of the Charter as Quan Ma claims he has not been tried within a reasonable time and thedelay is primarily caused by the Prosecution as representative of Her Majesty the Queen. [3] On November 7th 2012 the Court heard the application for Charter relief, transcripts were filed outlining the numerousadjournments, case law was referred to by both the Prosecution and defence and submissions made.

I deferred my decision on theCharter Application and with the consent of both parties proceeded to hear the trial on the matter as the Defendant now resides in theProvince of British Columbia and would not conveniently be able to return for a trial in the event that the Charter Application was notfound in his favour. [4] The parties referred to the fundamental case law which established the guidelines and principles for reviewing thecircumstances giving rise to relief under a

section 11(

b) Charter Application, including the seminal cases of R. v. Morin (SCC), [1992] 1 S.C.R. 771 and R. v. Askov (SCC), [1990] 2 S.C.R. 1199 and some more recent lower court decisionsas outlined in the Defendants Book of Authorities, but did not refer to more recent Ontario Court of Appeal and Superior Court decisions which refine the analysis and timelines to be met in light of Askov and Morin, when consideringthe issue of trial within a reasonable time.

The Court has reviewed these relevant and binding decisions on its own in considering whatshould be done in respect to the Charter Application before it. [5] I have reviewed R. v. Lahiry; R. v. Carreira; R. v. Davidson; R. v. Shelson, 2011 ONSC 6780, R. v. Steele, 2012ONSC 383, and R. v. Tran, 2012 ONCA 18 and as a result, I will be basing my decision primarily on the analysis established in theOntario Court of Appeal decision of R. v. Tran as it sets out a complete analytical framework for analysis of

section 11(

b) applicationsand in doing so referred to the considerations raised in Lahiry et al. [6] R. v. Tran, 2012 ONCA 18, set out a complete analytical framework for

section 11(

b) applications at paragraphs 20through 24, and the Standard of Review in the preceding paragraph 19, as follows: “ Standard of Review [19] This court has repeatedly held that the characterization of the various periods of delay on a s. 11(

b) Charter application and the

ultimate decision concerning whether the delay is unreasonable are reviewed on a standard of correctness. However, the underlying findings of fact are reviewed on the standard of palpable and overriding error: R. v. Schertzer 2009 ONCA 742 , 255 O.A.C. 45, at para. 71 .” “ Analytical Framework [20] The framework for analyzing an application for a stay under s. 11(

b) of the Charter is well-established. The court must consider:

i) the overall length of the delay between the laying of the charges and the end of the trial; ii) whether the accused has waived any of the delay; iii) the reasons for the delay; and iv) prejudice to the accused. [21] The first factor, overall length of the delay, is a screening mechanism to determine whether an inquiry into the reasonableness of the delay is warranted. If the overall length of the delay, when considered in the context of all the circumstances (such as whether the accused is in custody), is unexceptional, no inquiry is required.

Where an inquiry is warranted, time periods waived by the accused should be deducted from the overall length of the delay before considering the reasons for any remaining delay. [22] Five considerations come into play when considering the reasons for the delay:

a) the inherent time requirements of the case;

b) actions of the accused;

c) actions of the Crown;

d) limits on institutional resources; and

e) other reasons for the delay. [23] One of the two main purposes of s. 11(

b) of the Charter is the protection of an accused’s rights under the Charter to security of the person, liberty and a fair trial. An accused will suffer actual prejudice where the accused can demonstrate that the delay in bringing a case to trial has impaired one of those rights. Prejudice is inferred where the delay between arrest and trial is simply too long. [24] Once the four factors have been assessed, the court must determine whether the length of the delay is unreasonable having regard to the interests of the accused and the societal interests s. 11(

b) seeks to protect, the explanation for the delay and the prejudice to the accused. See Morin at pp. 786-803.” Application of the Analytical Framework to this Case [ 7 ] Following the guidelines in Tran , where the delay in Tran was 15 months, the overall period of delay being 14 months and 23 days in the present matter makes it undisputable that the delay warrants an inquiry into the reasonableness of the delay.

Further, there is similarly no suggestion that the defendant Quan Ma waived any of the delay. [ 8 ] Consequently, and once again following the Tran analysis, our focus now is on the third and fourth Morin factors (the reasons for the delay and prejudice to the defendant Quan Ma ) and the necessary balancing of the interests protected by s. 11(b).

The Facts giving rise to the delay [ 9 ] Quan Ma was charged on August 12 th 2011 with the aforementioned two counts, with an initial first appearance date of September 20 th 2011 which was not a court date and was subsequently changed to September 27 th 2011. [ 10 ] On September 27 th 2011 the matter was adjourned to November 15 th 2011 after the defendant received what I will call some “initial disclosure” and it was anticipated that the defendant would have a resolution meeting with the Crown, review disclosure and set a date. [ 11 ] On November 15 th 2011 the matter was adjourned to March 13 th 2012 for trial, the defendant provided the Crown with a written request for what I would categorize as “additional disclosure” and asked for a Mandarin Interpreter to be provided.

The defendant also updated his address. [ 12 ] On March 13 th 2012 there was a Mandarin interpreter present, the defendant had not yet been provided with the disclosure he had asked for, and because of that the defendant wanted to get an adjournment so he could receive and analyze this disclosure and possibly get counsel.

I will set out the relevant portions of the discussion on March 13 th 2012 because in my opinion it indicates a casual disregard to the defendant’s right to full disclosure and can help later with the analysis of what is inherent delay and what is Crown or institutional/court delay: At page 1 in the March 13 th 2012 transcript, lines 22 to 25, the Defendant says; “The last time I arrived , last meeting with the Crown I requested for further disclosure of some documents which have not been so far made available to me so that’s the reason I request an adjournment today.” The Crown, represented by Ms.

Karpouzos, replies at line 29 to 31 on page one and lines 1 to 14 on page two: “Well Mr. Ma indicated to me that he provided an additional disclosure request at the first appearance court. And a lot of the request in the documents either aren’t relevant or we don’t typically provide or aren’t available. I think it’s about calibration of the unit. So we failed to notify him of that unfortunately and it was probably my error .

However, all the information that he required can either be asked of the officer upon cross- examination or aren’t relevant.” “He did provide some sort of indication that he may want to consult an agent of a lawyer in which case I would be prepared to adjourn on that basis but if it’s solely on the basis of additional disclosure then I think we can proceed.” [Emphasis added]. [ 13 ] At lines 20 to 24 at page 2, the Court responds: “ What you’ve requested isn’t something that you are to be able to get. I think you heard Ms.

Karpouzos say that it is not relevant.” And the Crown adds lines 25 to 29: “I mean if I may, the only thing that may be available to him is the manufacturer’s operation manual, like the portion on testing but other than that the rest isn’t. [Emphasis added]. [ 14 ] At lines 30 to 31 on page 2 and lines 1 to 6 the Court sums up the defendant’s position as follows: “ So Mr. Ma, today

you’re basically in the same place that you were the last time you were here because you can ask on cross-examination of the officer a lot of the things that you need to know.

The manufacturer’s manual I believe you can view, can they come to the Crown’s office to view that or do they have to go to the police station to view that.” The Crown replies lines 7 to 8: “ I think they can do it at the Crown’s office .” [Emphasis added]. [ 15 ] There is further discussion about the difficulty to set a date for trial if the defendant does not have counsel’s availability, but it is agreed to adjourn it to March 27 th for the purpose of retaining counsel, getting disclosure, and setting a trial date, with the matter concluding as follows on lines 20 to 31 page 4 and lines 1 to 4 on page 5: Mr Ma: “So if somehow I show up in court on March 27 th all by myself can I do it?”; The Court: “ So your intention isn’t to hire counsel?”; Mr Ma: “ Well what I want to do is if the documents are provided to me I will use the recent documents to seek legal advice.” The Court: “ There are no documents that are going to be provided to you.

If you wish to review the manufacturer’s manual you will need to come to the Crown’s office to review. So we’re going to adjourn the matter to March 27 th . You can choose to have counsel or not, that’s up to you, and on the 27 th we’re going to set a trial date okay. And we will ask for a Mandarin Interpreter to be present.”[Emphasis added]. [ 16 ] On March 27 th 2012, now before a different Justice of the Peace then on March 13 th 2012, the defendant has still not obtained disclosure the defendant states at page 1 lines 14 to 22: Mr Ma: “Your Worship, I would like to make a few points.

I request – I need more like a document on for the disclosure and the prosecutor suggest I bring a Motion on the day of my trial and I’m just wondering if the court can, can, can actually allow me, allow me to get my further disclosure, the stuff I request on my further disclosure. So in …” The Crown suggests among other things, he fax a request in writing setting out why he needs the entire manual rather than just access to it and if he’s not happy he can make a Stinchcombe Charter application to the trial judge to deal with the matter. Mr Ma replies at page 2 lines 25 to 31 and page 3 lines 1 to 6: Mr.

Ma: “Your Worship for the fax part of the first part, I’m not good at English, Mandarin is language. I’m representing myself so I have to get a more like a document to ask others to help me with it even if I go to view the file. The manual’s very long. I can’t remember it so it’s very hard for me to prepare my trial and the second, for the second file, I go to the office but I live in Toronto most of the time and I really have to travel so I go meet, if they can let me view it I think they can also send this to me for me to have actual document.

If I can view it I think I can have the document.” [ 17 ] At page 3 lines 23 to 31 and page 4 line 1 to 5, the issue concludes with this exchange: The Court states: “ So you can specify that you’re requesting the manual for the Genesis II and that it’s serial number such and such in your fax.” Mr Ma: “Okay.” The Court: “And ask them if they can provide it to you because of your difficulty with the English language and you’re defending yourself.

Once you’ve done that if they don’t cooperate then you show the letter to the Judge or Justice on July what is this, July 18 th and bring a Motion to get it and you’ll possibly get an adjournment on that date if they haven’t helped you get it.” [ 18 ] The matter was then adjourned to July 18 th 2012 at 10 a.m. court room 103 for trial, one hour, Mandarin Interpreter ordered. [ 19 ] On July 18 th 2012, there was no Mandarin Interpreter present and the Crown, Mr.

Cotter said given the technical arguments under the Charter he anticipates at page 3 lines 1 to 4: “its likely going to be adjourned so we can have an interpreter here and that’s just in fairness for Mr. Ma.”. The Crown said they sent a letter to Mr. Ma on May 9 th 2012 regarding disclosure and Mr. Ma says he did not receive it, the Crown states at page 3 lines 10 to 27: “That was followed up sir with a letter dated May 9 th to Mr. Ma reiterating what was going to be disclosed, what wasn’t going to be disclosed and making the manual available if he wanted to use it.

That was mailed May 9 th with also the testing procedures . Mr. Ma says he received one letter from my office which was when the officer was qualified but it was mailed to his address but he said he never received this letter or this testing procedures so we’re not going to argue it today but I’m going to re-give him this information so that he has the clear letter that was mailed to him on May 9 th as well as the testing procedures which I said we would disclose. I’m going to give that to him.

I’ve also served him with a case I was going to use today but I thought may as well have that as well; his [sic] an unrepresented person to prepare himself as well as possible.” [Emphasis added]. [ 20 ] On July 18 th the matter was further adjourned to November 6 th 2012 for a trial and Charter motion. I note the motion anticipated on the trial date was to be on the issue of disclosure which was later abandoned and a notice was filed to make a Charter application on the issue of delay. Mr.

Ma addressed the Court on July 18 th and advised at lines 9 to 27: Mr Ma: “Precisely regarding my situation so I would like to note the court regarding this trial which will happen in November.

I actually graduated in April and I finish all my studies in Toronto and I already went back to Vancouver and for this time I bought my air ticket specifically for this case and also I do not have any plans to come back to Toronto in the next few years since I finished all my studies and for the next time I have to buy air tickets again to come back for the trial matter. and also as a new grad I don’t have a job and thus I do not have any incomes and keep buying air ticket to come back for trial it’s a huge financial burden on me especially I still have my student loan to pay off so as for the next time the Court will process my motion so if granted I’m just wondering can I ask the prosecutor to pay for my air tickets?” The Court: “So, the answer to that question is simply no….” Analysis [ 21 ] As stated in paragraph 20 of the Tran decision the framework for analyzing an application for a stay under s. 11(

b) of the Charter is well-established. The court must consider:

i) the overall length of the delay between the laying of the charges and the end of the trial; ii) whether the accused has waived any of the delay; iii) the reasons for the delay; and iv) prejudice to the accused. [ 22 ] In this matter, the length of the delay for Mr. Ma from August 12, 2011 to November 7 th 2012 is 14 months and 23 days. Mr. Ma did not waive any of the delay. The principle reasons for the delay are twofold:

a) the crown failed to provide adequate disclosure in a timely or efficient manner; and

b) there was no provision of a Mandarin interpreter on July 18 th or November 6 th 2012 which the accused is entitled to under the Charter . [ 23 ] Some disclosure was provided to the Defendant on September 27 th 2011 the first appearance date. Additional disclosure

was requested by the defendant on his second appearance date of November 15 th 2011. The time period from August 12 th 2011 until November 15 th 2011 is inherent time required to bring the matter to trial. On November 15 th it was adjourned to March 13 th for trial but additional disclosure had not been provided. This gave the defendant the right to a further adjournment. [ 24 ] The time period from August 12 th 2011 until March 13 th 2012 would normally be an inherent time requirement to bring the matter to trial.

But in this Court’s opinion, failing to provide the additional disclosure to the defendant in a timely manner after November 15 th changes the nature of some of the time period between November 15 th and March 13 th from inherent delay to Crown delay. [ 25 ] The disclosure provided by the Crown in a letter dated May 9 th 2012 [ although apparently not received by the defendant until July 18 th 2012] could easily have been provided to the Defendant within 30 days of his written request on November 15 th 2011. [ 26 ] The disclosure of the officer’s qualifications may have been provided before May 9 th , although the court has not been provided the specific date for such provision.

Moreover answers to the defendant’s specific written requests for disclosure made November 15 th 2011 and again on May 7 th 2012 were only provided by the Crown by letter dated May 9 th 2012 after the defendant’s two written requests and only after the second request on May 7 th 2012 when the defendant referred to the Stinchcombe decision. [ 27 ] The defendant has the right to full answer and defence and disclosure is a key component to his ability to do that. Mr. Ma was getting legal advice based on the information/disclosure he was being provided by the Crown.

He does not have to hire a counsel or agent to do this for him at extra expense and he should not be treated differently in respect to the provision of disclosure in a timely manner because he is representing himself. [ 28 ] I attribute the time period from December 15 th 2011 to March 13 th 2012 as Crown delay for failing to provide additional disclosure in a timely manner.

The scant few pages of disclosure and an explanation as to what they would provide and how he can access the rest of the manual should have been done shortly after November 15 th at least within a 30 day period, and that delay caused the need for an adjournment on March 13 th .

Even had the information been provided to the defendant on March 13 th , the defendant would need time to review it and get advice and thus he would have been entitled to a further adjournment to do just that. [ 29 ] It is this Courts finding based on the Crown’s unnecessary delay to deliver simple disclosure within thirty [30] days after the trial date has been set, that the nature of the time period after that 30 day period changes to Crown delay from inherent delay.

This is so because an adjournment is not only inevitable but it is the defendants right after disclosure has not been provided expeditiously, and the domino effect of institutional delay to set two further trial dates after the initial trail date, is in the opinion of this Court also the Crown’s burden. [ 30 ] This Court finds that on November 15 th 2011, the Crown knew or ought to have known that it had to provide disclosure to which the Defendant was entitled within a reasonable time and failing to do so would likely result in the need for a further adjournment to which the Defendant would be entitled to.

It is no answer to say to a Defendant that he can get this information on cross-examination. Such an approach is offhand, pejorative and a casual treatment which disregards the right to reasonable disclosure upon request which enables the Defendant to adequately prepare for his or her case. [ 31 ] Certainly both institutional and Crown delay when totalled must be considered as effecting the Defendants right to trail within a reasonable time.

But the view of this Court is that the domino effect caused by Crown delay makes the Crown bear the brunt of any subsequent institutional delay; and the Crown delay to deliver simple disclosure within 30 days of setting the trail date changes the nature of what would otherwise be categorized as inherent delay to Crown delay because an adjournment at the trial date where no reasonably requested disclosure has yet been provided is inevitable. [ 32 ] I attribute the time from December 15 th 2011 to the trial date of March 13, 2012 as Crown delay because disclosure had not been provided within 30 days of the November 15 th 2011 date set.

That delay is 89 days. [ 33 ] The time period from March 13 th to July 18 th is Crown delay because disclosure in actual fact was not received by the defendant until July 18 th 2012.

Even if I am wrong and disclosure should be deemed received by the defendant on May 13 th four days after mailed on May 9 th because the Defendant appears not to have provided the Crown with his new address after he left Toronto on the completion of his studies [ and not having heard from the Crown from March 27 th 2012 with his disclosure request still in play], even if deemed received by May 13 th , the time from May 13 th to July 18 th would become institutional delay because no interpreter was actually available on July 18 th . [ 34 ] Therefore I find the failure of the prompt provision of disclosure to be the cause of the delay from December 15 th 2011 to July 18 th 2012 and the failure to provide an interpreter on July 18 th to be Crown/institutional delay to November 7 th 2012 as the defendant was available for trial at any time. [ 35 ] In

summary, the period of delay is: inherent from August 12, 2011 to December 15 th 2011; Crown delay from December 15 th 2011 to July 18 th 2012 for not providing disclosure in a timely manner; institutional/Crown delay from July 18 th to November 6 th attributing the domino delay effect for not providing timely disclosure to the Crown; Crown delay from November 6 th to 7 th for releasing the interpreter too soon as the defendant was coming from Vancouver for his trial on November 6 th the court having been made aware of his journey on July 18th. [ 36 ] The Crown answered the Defendant’s inquiries and provided copies of the testing procedures in its letter of May 9 th 2012,

which I find the defendant did not actually receive until they were handed to him on the July 18 th 202 trial date, as the defendant had returned to his home in Vancouver in April 2012 after his studies in Toronto had concluded. [ 37 ] After the defendant received the disclosure on July 18 th 2012 he abandoned his motion for disclosure.

But he served proper notice in October that he would pursue a Charter application for delay since the matter was subsequently adjourned to November 6 th for hearing. [ 38 ] This Court finds that when the Crown delayed delivery of disclosure until May 9 th 2012, it became responsible for the delay from December 15, 2011 to July 18 th and had an interpreter been available on July 18 th the Crown delay would have only been 7 months and 3 days. Seven months and 3 days would not likely have warranted a stay of proceedings based on the Morin and Tran decisions.

However, failure to secure an interpreter for July 18 th is a further Crown/institutional delay and adds 3 months and 20 days to the trial date of November 7 th 2012 which gives a total of 10 months and 23 days delay [ 39 ] I take into consideration that the Defendant Quan Ma flew to Toronto from British Columbia on both the July 18 th and November 6 th trial dates because his university studies in Ontario were completed in April 2012 and he returned to his home in British Columbia to live with his parents and look for employment.

This is extremely prejudicial to the defendant in terms of cost and effort to have a trial. I take into account that prior to the completion of his studies in April 2012, the Defendant attended Court on four occasion’s two of which were necessitated by the failure to provide disclosure by the Crown. This interfered with his university studies. [ 40 ] The Defendant has the right to live his life and that includes returning home after his studies are completed.

The prejudice against this defendant in addition to the worry or stress caused by the excessive delay is greater than a typical defendant who resides locally as he was put to the addition expense of travel and accommodation.

Court questioned the defendant on the need for an interpreter and found his language skills required an interpreter for something as complicated as a trial, arguing legal principles. [ 41 ] Looking at the totality of the time, almost 15 months, with almost 11 months attributable for crown delay to deliver simple disclosure in an expeditious manner and institutional delay because of availability of trial dates, interpreter and officer scheduling, the scale tips in favour of deciding this motion in favour of the defendant, the charges are hereby stayed pursuant to

section 24 of the Charter based on the Defendant’s

section 11(

b) application. [ 42 ] In my opinion The Crown ought to provide the written instructions used by an Officer to test a radar or laser device, as well as the Officer’s qualifications to operate the device as a matter of course to all defendants as part of their disclosure package. [ 43 ] The Court takes note that on November 6 th 2012 the defendant arrived at 1040 a.m. but the Mandarin interpreter had already been released. Fortunately, since Mr.

Ma had to return to Vancouver later that week, the prosecutor was able to get a Mandarin Interpreter back on November 7 th at which time both the Charter application was heard and the trial matter was completed.

The Court advised it would deliver the decision in writing and it would be mailed to the defendant’s Vancouver address as it was not in the interest of justice to require the defendant to purchase a return ticket for a third time to hear the decision. [ 44 ] I indicated to the parties that I would hear the trial of this matter before deciding on the motion to assist the Defendant and any Court of Appeal in the event I decided the motion in the Defendants favour and was found to be in error if I were to grant a stay.

The subsequent paragraphs detail my findings on the Trial of this matter and any sentence I would impose in the event the Defendant was found guilty of the two counts upon which he was charged.

TRIAL [ 45 ] The Defendant Quan Ma was arraigned and pleaded not guilty to two charges under the Highway Traffic Act of Ontario , namely Quan Ma is charged on the 12 th of August 2011 at the City of Waterloo with drive a motor vehicle on a highway while performing a stunt to wit: speeding in excess of 50 km/her over the posted speed limit, contrary to section 172(1) of the Highway Traffic Act, and further, being the driver of a motor vehicle unlawfully failed to surrender a licence for reasonable inspection upon demand of a police officer, contrary to Section 33(1) of the Highway Traffic Act. [ 46 ] I heard the evidence of Constable Robert Wiens, an officer employed by the Ontario Provincial Police who investigated this case and made hand written notes in ink with no changes additions or deletions since they were made.

He required his notes to refresh his memory although he had an independent recollection of the events. The defendant consented as long as the notes were the same as those received by the defendant, which they were. [ 47 ] Officer Wiens testified that he was working the night shift on August 12, 2011 from 6:00 p.m. to 6:00 a.m., was driving a marked cruiser equipped with a Genesis II radar unit serial # G2S-24410. He testified that the purpose of the radar unit is to accurately measure the speed of a moving motor vehicle and he is a qualified operator of the unit.

He was qualified in January 2010 by a Constable Deyo of the OPP who he knows to be a qualified radar instructor. [ 48 ] On August 12, 2011 at 8:01 p.m. and again on August 13, 2011 at 5:30 a.m., he tested the radar unit according to the manufacturer’s written instructions and both times found it to be in proper working order. [ 49 ] At 10:31 p.m. on August 12, 2011 he was conducting stationary radar speed enforcement at Highway 85 at Lexington Street in the City of Waterloo while stationed in the centre median of Highway 85 to the left of the southbound lanes where he could monitor both southbound and northbound traffic. [ 50 ] He observed a motor vehicle approach his location travelling southbound at a high rate of speed in lane number 1.

He estimated the speed of that motor vehicle to be over 140 kmph and confirmed his observations using the radar, locking the speed in at 155 kmph in a posted 90 kmph zone.

[ 51 ] He did not know what kind of vehicle it was until it passed him, because it was dark out, although the weather was clear, the roads were dry and clear, and the traffic was light. [ 52 ] There were no other vehicles ahead of the subject vehicle although there was a vehicle in the right lane behind, which the subject vehicle had passed, and there were no vehicles between the officer and the subject vehicle.

The vehicle which the subject vehicle had passed would not have affected the reading obtained from the subject vehicle. [ 53 ] Without losing sight of the subject vehicle, Officer Wiens testified that he stopped it on the off ramp from Highway 85 Southbound to University Avenue; it was a white BMW 335i bearing licence plate number BLSJ 072. [ 54 ] He approached the driver’s side, asked the driver for his driver’s licence, vehicle registration and insurance.

The driver was unable to produce his driver’s licence but verbally identified himself as Quan Ma with a date of birth of April 10, 1988 and an address at that time of University Avenue in Waterloo. [ 55 ] Officer Wiens was able to confirm the identity of the driver by accessing his MTO ISS system through the computer in his cruiser and observe a photo of Quan Ma . He was satisfied that the driver was the Defendant Quan Ma and could recognize him at the trial. [ 56 ] The posted speed on Highway 85 at the position where he observed the defendant driving is 90 kmph and he issued the Defendant with two

Part III summons for stunt driving by driving over 50 kmph over the posted speed and for failing to surrender his driver’s licence. The defendant provided his ownership of the motor vehicle for which he was the registered owner. [ 57 ] The defendant was wearing gym attire as he was coming from the gym and told the office that is why he did not have his wallet with him at the time. [ 58 ] The Officer did not note the distance the defendant was from his cruiser at the time he took the reading and the device does not give him that information.

There were two lanes south bound and two lanes north bound at this location. [ 59 ] On cross examination the officer testified there were street lights but could not identify the vehicle until it got closer.

The road was straight and the subject vehicle was coming down a hill where he could see its headlights. [ 60 ] The Officer was cross examined on the testing procedures and the Court was satisfied with his testimony in respect to knowing how to operate the radar unit and ensure its accuracy. [ 61 ] I agree with the Defendant that the Officer needs a reference point to estimate the speed of a moving motor vehicle, and at night headlights on a straight road with no reference point would make it impossible to make a reasonable estimate. [ 62 ] The Officer testified there were street lights over the bridge on the overpass and there was a slower moving vehicle which the Defendant’s vehicle passed.

I am satisfied that even though the officer did not articulate it clearly in cross-examination, his experience combined with the available light, the bridge overpass and the passing of another vehicle by the defendant’s vehicle gave the officer a reference point to enable him to estimate that the speed of the defendant’s approaching vehicle was greatly in excess of the speed limit.

This observation was confirmed by the radar reading. [ 63 ] The Defendant Quan Ma testified he was coming from the gym on the date in question, he passed a car and that car reduced its speed from there on “it is as the officer said”. [ 64 ] Quan Ma testified that he was not feeling well that night and he had a cramp in his leg, he wanted to get off at the exit and have a rest. [ 65 ] I find both the Officer and the defendant to be credible witnesses.

I am satisfied by Office Wiens testimony that on the date time and location in question he observed a motor vehicle subsequently shown to be driven by the defendant Quan Ma to be traveling at a high rate of speed, that he clocked it at 150 kmph in a posted 90 kmph zone using the radar that he is qualified to operate and which was working properly at that time.

I am satisfied that the driver was properly identified as the defendant Quan Ma, and that he was unable to produce his driver’s licence at the time when requested. [ 66 ] I do not accept the explanation by the defendant that his speeding was a medical emergency because he had a cramp in his leg.

Certainly he could pull off the road at any location without speeding to get the cramp under control if that were the case. [ 67 ] Consequently a conviction would be in order in respect to both counts under the Highway traffic Act in the event my stay of the proceedings is overturned on Appeal. [ 68 ] In respect to sentencing, the minimum fine under section 172 (1) of the Highway Traffic Act for speeding is $2,000.00 on a first conviction, as well his licence could be suspended for up to six months.

In respect to failing to produce his driver’s licence for reasonable inspection upon demand under section 33(1) of the Highway Traffic Act, the set fine is $85.00. [ 69 ] The defendant is a university student and has debts arising out of his studies in the amount of approximately $24,000.00. He sold the BMW and advises it was a leased vehicle which given his purchase of the lease and subsequent sale before returning to British Columbia only cost him approximately $1,000.00 to own for a year, plus insurance and operating costs. He has no other assets except his engineering degree and he is seeking employment.

He has no driving record. He attended court diligently to obtain disclosure and have his trial and to this end attended court on 7 occasions until its completion. He flew from British Columbia at this own expense for his trial dates on two occasions, namely July 18 th 2012 and November 6 th 2012 and stayed at moderately priced accommodation in Toronto for the two trial dates. [ 70 ] In the circumstances and considering the Defendant’s request for me to consider reducing the minimum fine under

section 59(2) of the Provincial Offences Act, I find that it would not be in the interests of justice nor would it be fair to the Defendant to fine him the minimum fine under section 172(1) of the HTA. I find the defendant is a young man starting out in life, looking for employment with a student debt to pay off of approximately $24,000.00, he has no assets or income at the time of the trial, he is a first time offender and he has spent hundreds of dollars on two occasions to fly back to Ontario to have his trial.

In these circumstance I would reduce the sentence on the section 172(1) HTA charge to a fine of $600.00 plus costs and surcharge, which sum of money is slightly higher then the statutory fine under

section 128 of the HTA for speeding.

In my opinion this is appropriate given the light traffic on the night in question and the financial circumstances just outlined. [ 71 ] In respect to the section 33(1) HTA charge, the defendant is similarly indebted and unemployed as stated above, the officer was able with the current computer systems to access a complete identification of the defendant equivalent to what would be obtained by inspecting his driver’s licence, the defendant admitted he overlooked taking his licence with him when he travelled to the gym, and again the defendant spent hundreds of dollars on two occasions to fly to Ontario from British Colombia to have his trial, in these circumstances I would suspend the passing of sentence on the section 33(1) HTA charge.

Released: February 26 th 2013 Justice of the Peace James Ziegler