HIS MAJESTY THE KING Appellant - v. -, 2022 SKKB 229

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 229 Date: 2022 10 19 Docket: CRM-SA-00285-2020 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING Appellant - and - SHANE WURTZ Respondent Counsel: Valerie A. Adamko for the appellant Crown no one appearing for the respondent (also not present) ___________________________________________________________________________ JUDGMENT ELSON J.

October 19, 2022 ___________________________________________________________________________ Introduction [ 1 ] This is an appeal by the Crown from the reserved judgment of the justice of the peace, dated September 10, 2020. In that judgment, the justice of the peace found the respondent not guilty of two offences which were ticketed under The Traffic Safety Act , SS 2004, c T-18.1 [ TSA ]. Only one ticket is the subject of this appeal. That ticket charged the respondent with driving a vehicle at a speed greater than the maximum speed indicated by a properly erected sign, contrary to s. 199(1) (

b) of the TSA . [ 2 ] The justice of the peace premised the acquittal on two specific conclusions. First, he found that the Crown failed to prove beyond a reasonable doubt that the posted speed limit sign was an “official sign” authorized by the relevant minister of the Crown, as required by the TSA . Second, the justice of the peace found that the respondent had not been properly identified at trial. He found that identification by the attending officer matching the driver’s licence information and photograph with the actual driver was insufficient.

In his view, the Crown was required to establish direct identification in court. [ 3 ] In this appeal, the Crown challenges both conclusions by the justice of the peace. On the matter of identification, the Crown asserts that the justice of the peace ignored longstanding jurisprudence which stipulates that a so-called “dock identification” is unnecessary in certain circumstances, particularly for offences initiated by appearance notices and tickets. [ 4 ] On the matter of the “official sign”, the Crown’s argument was much less directly advanced.

After presenting a rather simplistic and unpersuasive submission, similar to that presented at trial, the Crown was granted leave to make a further written submission, which it did. In the subsequent submission, the Crown relied substantially on the infrequently employed maxim “ omnia praesumuntur rite esse acta ”. This maxim embodies the common law presumption that the acts of public officers are to be regarded as regular until the contrary is shown. [ 5 ] For the reasons that follow, I am satisfied that the justice of the peace erred in both of his conclusions. Accordingly, the Crown’s appeal must be allowed.

Background [ 6 ] The evidence at trial described events said to have occurred on October 6, 2019. On that date, the respondent was operating a motor vehicle on 33rd Street in Saskatoon. He was intercepted by an officer of the Saskatoon Police Service who was monitoring traffic speeds near the intersection of 33rd Street and Bing Avenue. The officer testified that the posted speed limit was 50 km/h.

He said the posting was shown on a typical speed limit sign, professionally manufactured, erected in a manner consistent with other similar signs in the city, and consistent with signs identified in the Saskatchewan Government Insurance Driver’s Handbook [Driver’s Handbook]. In short, the officer testified that he had no reason to believe the sign was not an official sign. [ 7 ] The officer estimated that the respondent was travelling at approximately 65 km/h, at which point he activated his radar unit and recorded the respondent’s speed at 67 km/h.

A tuning fork test certificate was entered as an exhibit, confirming the

testing of the radar with tuning forks at both the beginning and end of the officer’s shift. As earlier mentioned, the respondent receivedtwo tickets, one for speeding and the other for operating a vehicle with an obscured licence plate. [8] At trial, the officer did not identify the respondent directly. As more than ten months had passed since theofficer’s interaction with the respondent, he could not recall him. That said, the officer testified that he followed his usual practice ofcomparing the photograph on the driver’s licence with the person operating the vehicle.

When he did so, he was satisfied that the personidentified as the respondent was the driver of the vehicle at the time in question. [9] During the trial, the respondent did not challenge the validity of the posted sign, nor did he dispute that he wasthe individual stopped by the officer. Moreover, the respondent did not testify or provide any evidence to contradict the Crown’s case. [10] After reserving his decision, the justice of the peace delivered an oral judgment on September 10, 2020,acquitting the respondent on both charges.

As earlier mentioned in the introduction, the basis of the acquittals was twofold: (1) thefailure of the Crown to prove beyond a reasonable doubt that the relevant speed limit sign was an “official sign” as defined by s. 2(

u) ofthe TSA; and (2) inadequate identification of the respondent at trial. [11] On the question of the speed limit sign, the justice of the peace was not persuaded, by either the officer’sevidence or the Driver’s Handbook, that the Crown had proved that the posted sign was an official sign within the meaning of thestatute. He observed that to be an “official sign”, the TSA stipulated that it was to be “authorized” by the relevant minister. In his view,this suggested that the official signage was an element of the offence, requiring the Crown to prove ministerial authorization.

Failing thisproof, the charge could not be made out. In this respect, and quoting from the trial transcript, he said the following: In the case of the Traffic Safety Act, and I’m particularly looking at the provisions of the Act, the Traffic Safety Act requires more thanjust a sign to set up the speed limit. It requires a specific kind of sign, an official term, as that term is defined. And there was an apparent lack of evidence on that point, or at least I’m not satisfied beyond a reasonable doubt, that what was talkedhere were official signs, as that term is defined.

I take no issue with the evidence of the idea that these are professionally made and nothandmade signs. Somebody put them there, but the fact that somebody put them there does not necessarily mean that they comply withthe requirement under the Traffic Safety Act.

And this, of course, is an element of the offence which must be proven beyond a reasonable doubt, and again I refer to the Dubet [sic]case. [Transcript, page T75, lines 8 to 20] The case referred to by the justice of the peace in this passage is R v Dubé (1983), 21 MVR 244 (NBQB) [Dubé]. [12] On the failure to identify the respondent, the justice of the peace referenced a decision of this Court in R v M.(T.), (SK KB), [1993] 8 WWR 406 (Sask QB) [M.(T.)].

In referencing that authority and applying it to the evidencebefore him, he said the following: … And in that particular case the appeal court refused to overturn a trial court that had acquitted an individual for breach of probation,where the trial judge had not been satisfied that the individual in court was proven to be the person who had actually signed a probationorder some weeks previously. So in my view, it’s not enough that the officer be satisfied that the driver matches the driver’s licence.

It has to be taken to the next step,that is the circle of identification has to be closed, has to be shown beyond a reasonable doubt that the person on the street was not onlythe driver of the offending vehicle, but he’s the same person as in court. [Transcript, page T74, lines 9 to 19] Jurisdiction and Standard of Review [13] I agree with the Crown’s written submission on this Court’s jurisdiction to hear this appeal and review thejudgment rendered by the justice of the peace. Such jurisdiction is found in s. 4(4)(

b) of The

Summary Offences Procedure Act, 1990, SS1990-91, c S-63.1. This provision expressly incorporates by reference the application of s. 813(b)(

i) of the Criminal Code, RSC 1985,c C-46. [14] The standard of review under s. 813(b)(

i) is not meaningfully different for provincial offences as it is forsummary conviction appeals under the Criminal Code. This is illustrated in the decision of this Court in R v Hunchak, 2014 SKQB 257,453 Sask R 276. There, Wilkinson J. considered an appeal from a conviction of driving without due care and attention. At paragraphs 11to 20, Wilkinson J. described all the applicable standard of review principles. For the purpose of this appeal, it is only necessary for meto summarize the three circumstances in which an appellate court can allow an appeal.

They are: a. where the verdict is unreasonable; b. where the court below made an error of law; or c. where there was a miscarriage of justice. In the present appeal, the issues are confined to whether the justice of the peace made errors of law in the conclusions he drew. Relevant Legislation [15] There are two provisions of the TSA and one provision of The Highways and Transportation Act, 1997, SS

1997, c H-3.01 [HTA], that pertained to the question of the speed limit sign in this case. The first provision of note is s. 201(1) of theTSA, which refers to the sign required to establish a speed zone.

This provision reads as follows: 201(1) If pursuant to The Highways and Transportation Act, 1997, or any former Highways and Transportation Act, a speed zone isestablished by the erection of an official sign, no person shall drive a vehicle on the portion of the provincial highway within the speedzone at a speed greater than indicated. [Emphasis added] [16] As noted in the above emphasized portion of s. 201(1), a speed zone is established by the erection of an “officialsign”. This term is defined in both the TSA and the HTA.

Having said that, the legislature recently amended the definition in the TSA.Accordingly, it is important to identify the

definitions as they read at the time of the speeding ticket in question. At the relevant date, therespective

definitions, in s. 2(1)(

u) of the TSA and in s. 2(

k) of the HTA, read as follows: (

a) in the TSA: 2(1) In this Act: … (u) “official sign” means a sign, pavement marking, barricade, or object that is authorized by the minister responsible for theadministration of The Highways and Transportation Act, 1997 pursuant to another Act or by that minister or any other person pursuant tothis Act to be erected, placed, used or painted on the roadway or right of way of a highway for the legal control, warning, guidance,direction or information of traffic on the highway; [Emphasis added] (

b) in the HTA: 2 In this Act: … (k) ”official sign” means a sign, pavement marking, barricade or object that the minister authorizes to be erected, placed, used orpainted on the roadway or right of way of a public highway for the legal control, warning, guidance, direction or information of traffic onthe highway; Law and Analysis [17] When this appeal first came before the Court, the Crown’s argument on the signage issue was confined to theproposition that the “official” status of the speed limit sign had been established through the following evidence at trial: a. the attending officer’s testimony that the relevant sign was consistent with other road signs that the officer had enforced; b. the attending officer’s testimony that he had no reason to believe the relevant sign was not official; c. the relevant sign was consistent with the images of road signs published in the Driver’s Handbook; d. the failure of the respondent to challenge the legitimacy or authorization of the relevant sign.

In the context of this evidence and applying the “purposive approach” to the

interpretation of the TSA, as that approach was articulated inRizzo & Rizzo Shoes (Re), (SCC), [1998] 1 SCR 27, the Crown contended that it was not required either to address orto prove authorization of the relevant sign. [18] Respectfully, I did not find the Crown’s initial submission to be helpful. In my view, it was overly simplistic andpoorly thought out. Reliance on the Driver’s Handbook and a vague reference to the purposive approach to statutory

interpretation wasparticularly unhelpful. Without more legal analysis, these factors did not provide a cogent pathway to a meaningful conclusion. [19] The deficiency in the Crown’s initial submission prompted me to write an interim fiat. In that fiat, I invited theCrown to make a further written submission. Eventually, the Court received such a submission, authored by the Regional CrownProsecutor in Saskatoon, Valerie Adamko. I should also point out that Ms. Adamko did not appear as Crown counsel at the initial hearingof this appeal.

Even so, I have taken the liberty of identifying her as Crown counsel of record. [20] The Crown’s second submission has been considerably more helpful. With additional research, the conclusionsexpressed in this judgment, as they pertain to signage, are informed by this submission. Signage and the Presumption of Regularity – Applicable Law [21] The Crown’s second submission is substantially premised on application of the presumption of regularity, alsoknown as the presumption of conformity. The presumption of regularity is a longstanding presumption derived from the maxim omniapraesumuntur rite esse acta.

This maxim suggests that a court is expected to presume the regularity of a public officer’s actions until the contrary is shown. The presumption has its origins in English common law, dating at least as far back as the 18th century when it wasconsidered in R v Gordon (1789), 1 Leach 515.

It primarily applies to certain specific civil proceedings, but it can also factor insubstantive criminal cases and the prosecution of regulatory offences. [22] One of the leading Canadian authorities on the application of the presumption of regularity to criminal matters isthe judgment of the Alberta Court of Appeal in R v Scott (1980), 1980 ABCA 299 , 56 CCC (2d) 111 [Scott]. In Scott, theaccused was charged with breach of probation.

The central issue at trial focused on whether the Crown was obliged to adduce positiveevidence that the judge who imposed the probation order complied with the statutory requirements in the Criminal Code. In this regard,

the ordering judge was required to inform the accused of the provisions that set out the potential consequences of failure to comply withthe order. Although the accused had signed a written acknowledgement to this effect on the form of the order, the issue was whethermore positive evidence was required. The accused was convicted in the Alberta Provincial Court, but the conviction was later quashedon appeal. On further appeal, the conviction was restored in a split decision of the Alberta Court of Appeal. [23] The presumption of regularity factored prominently in the Court of Appeal’s decision.

Writing for the majority,Prowse J.A. acknowledged that application of the presumption involved certain conditions. In this context, at paragraph 4 of thejudgment, he adopted the four conditions proposed by the author of Wigmore on Evidence, 3d ed, vol IX (1940) at 488.

In doing so, herecited the author’s comments as follows: … … first, that the matter is more or less in the past, and incapable of easily procured evidence; secondly, that it involves a mere formality,or detail of required procedure, in the routine of a litigation or of a public officer’s action; next, that it involves to some extent thesecurity of apparently vested rights, so that the presumption will serve to prevent an unwholesome uncertainty; and, finally, that thecircumstances of the particular case add some element of probability. [24] Mindful of these conditions, Prowse J.A. acknowledged that while it would be questionable for a court to applythe presumption as the only basis upon which to establish guilt for an offence, it could properly apply the elements that do not go to thegravamen of the offence.

In this regard, Prowse J.A. wrote the following observation, also at page 114: … To purport to establish the guilt of an accused solely or largely by reliance on such a presumption would amount to a 1980 ABCA299 fundamental contradiction of the principles upon which our system of criminal law is based. This is not to say, however, thatthe presumption has no application. The gravamen of an offence, that is the fact that the acts comprising the offence were done by theaccused, with whatever mental element may be required by the definition of the offence under consideration, must be proved by directevidence.

At that point, an examination of Wigmore’s conditions quoted will at times demonstrate the appropriateness of applying thepresumption of regularity to establish elements of the offence which, while technically essential to the charge, are not central to the issueof whether the gravamen of the offence has been established.

The due appointment of officials, and compliance by officials with theirstatutory duties, come to mind as areas potentially receptive to the application of the presumption. [25] Prowse J.A. also recognized the existence of certain practical problems arising from the need for direct evidenceof certain forms of statutory compliance. Such evidence is often difficult to procure. In the Court’s view, judges should not ignore suchpractical realities.

If invocation of the presumption did not risk prejudice to the accused or go to proving the gravamen of the offence, itshould apply. [26] By the time of the judgment in Scott, an approach resembling the presumption of regularity had already beenapplied to traffic prosecutions. An illustration of this appears in R v Coad (1956), (AB CA), 115 CCC 61 (Alta CA).After an acquittal by the magistrate, the accused was convicted of speeding on appeal. The roadway in question was an area covered byan Order in Council that expressly mandated the relevant minister to erect speed limit signs.

Before the magistrate, the accusedsuccessfully argued that the Crown had failed to prove that the relevant minister authorized the erection of the speed limit sign inquestion. The magistrate’s decision was reversed on appeal. An equally divided panel of the Alberta Court of Appeal affirmed thejudgment of the appeal court. The two judges writing for the dismissal based their decision on the view that the evidence of the erectedsign raised a prima facie case that the minister had properly authorized it.

Where such a case had been made out, it was left to theaccused to contradict it. [27] Another case of note on this matter is one cited by the Crown in its second submission.

The Québec Court ofAppeal addressed the presumption of regularity, which it described as the “presumption of conformity”, in Directrice des poursuitescriminelles et pénales c Watters, 2017 QCCA 1315 [Watters], leave to appeal denied in Pierre Watters v Director of Criminal and PenalProsecutions, 2018 CarswellQue 5878 (WL) (SCC). [28] In Watters, the accused was found guilty of speeding in a construction zone marked with a sign indicating a50 km/h speed limit.

At the trial before the magistrate, the accused relied entirely on the argument that the speed limit signs before thework zone were deficient, and that the prosecutor was required to prove that they complied with the standards established by the Ministerof Transport. The prosecution resisted this argument by relying on both a statutory presumption as well as the common law presumptionof conformity. It further posited that it was for the accused to rebut the application of either presumption by proving, on the balance ofprobabilities, that the speed limit sign did not comply with the appropriate standards.

At trial, the magistrate accepted the prosecutionsubmission, but only as it pertained to the common law presumption. [29] On appeal to the Superior Court of Québec, the accused’s appeal was allowed. Purporting to rely on thejudgment in Scott, the appeal judge concluded that the question whether the sign met the required standards went to the actus reus of theoffence charged and amounted to an essential element, which the prosecution was required to prove beyond a reasonable doubt. [30] On further appeal to the Québec Court of Appeal, the conviction was restored.

In his judgment, Émond J.C.A.,reviewed certain relevant authorities that touched on application of the presumption of regularity to signage when applying traffic safetylegislation. These authorities included R v Garbarino, 2010 ONCJ 300, 100 MVR (5th) 150, and R v Hawkshaw, 2006 ONCJ 536,45 MVR (5th) 49, leave to appeal denied 2007 CarswellOnt 1162 (Ont CA). Émond J.C.A. went on to reject the appeal judge’sinterpretation of Scott. That

interpretation seemed to regard Justice Prowse’s reference to the “gravamen” of an offence as one of itsessential elements. Émond J.C.A. offered a different perspective, at paragraphs 60 and 61. Quoting from the text of the judgment, hewrote the following: [60] Pour ma part, je lis cet extrait autrement. À mon avis, le juge Prowse ne fait qu’indiquer que le fait d’établir un élément essentielde l’infraction seulement ou principalement par l’application de cette présomption constituerait une atteinte aux principes fondamentauxsur lesquels le système de droit « criminel » est fondé. Or, c’est d’ailleurs la nuance apportée par les jugements R. c. Hawkshaw et R. c.Garbarino.

[61] J’ajoute que, dans le cadre d’une infraction pour excès de vitesse comme celle de l’espèce, la culpabilité ne découle pas« seulement ou principalement » de la conformité de la signalisation routière. Si la signalisation constitue un élément constitutif del’infraction, elle n’en est pas pour autant un élément central du litige, surtout lorsque la preuve révèle la présence d’une signalisationadéquate et visible comme c’est le cas ici.

Roughly translated, the above passage illustrated the Court’s view that the Scott decision simply stands for the proposition that thepresumption of regularity should not apply in a way that infringes any fundamental criminal law principles. Émond J.C.A. went on to saythat, while the signage informed a constituent element of the offence in the case, it was not a central element, or “élément central dulitige”. [31] Before leaving the discussion on the law related to the status of the sign, I should briefly comment on thereference made by the justice of the peace to the decision in Dubé.

In that case, the accused was charged with speeding. The attendingofficer testified to a speed limit sign posted two kilometres before the point where he intercepted the accused. The officer did not indicatewhether there were intervening signs between those two points. The relevant statutory provision included a presumption regarding proofof the existing speed limit provided there was evidence of a sign passed by the driver that no other signs existed until the point ofstopping. At trial, it was determined that the Crown had not proved sufficient background facts to engage the presumption.

That decisionwas affirmed on appeal to the New Brunswick Court of Queen’s Bench. In the appeal decision, Daigle J. accepted that proof of the speedlimit was an element of the offence charged. That said, he did not discuss the propriety of the signage as an essential element. In myview, the case has limited application to the question in this appeal. Signage and the Presumption of Regularity – Analysis [32] The Crown’s submission, based on the presumption of regularity, is compelling and has much to commend it.This is particularly so for the prosecution of regulatory offences, such as in this case.

Having said this, one must still acknowledge theobvious, namely, that it would have been preferable for the minister’s authorization to have been established in a juristic way, such as bya recorded Order in Council or a written authorization published in the Saskatchewan Gazette. Indeed, the Crown’s recent submissiondiscloses that such an authorization has now been published in

Part I of The Saskatchewan Gazette on January 29, 2021, at page 206.Without such a juristic form, one is left to presume that the minister’s authorization exists in some other undefined form, which wouldlikely be difficult to procure. [33] Even so, I accept that the law recognizes the existence of such a presumption.

Speaking more directly to thepresumption of regularity, I am persuaded that it provides a basis in law for Saskatchewan courts to presume compliance with statutoryformalities where evidence of such compliance cannot be easily procured. [34] That was the very situation that confronted the justice of the peace in this case. While the Crown’s argumentbefore him was not particularly compelling, I am satisfied that the presumption of regularity was not only available to him, it was alsowarranted.

Despite it not having been raised before him, I am persuaded that the justice of the peace erred in law when he failed toconsider and apply it. Had he done so, I have little doubt he would have concluded that the relevant sign was an “official sign” within themeaning of the TSA. [35] In making this comment, I do not question the conclusion that proof of speed in excess of the limit was anelement of the speeding offence.

That said, the judgments in Scott and Watters persuade me that as long as the presumption is notemployed to prove the gravamen of the offence, which in this case was exceeding the maximum speed limit, it can serve to prove anessential element relevant to the existence of that speed limit. In-Person or “Dock Identification” of an Accused – Law and Analysis [36] The question of whether the law requires direct identification of an accused person, colloquially known as “dockidentification”, has been addressed multiple times in the related jurisprudence.

The authorities make it clear that direct identification of anaccused person at trial is preferable where it is practicable. It is not, however, the only method. Circumstantial evidence is often used toidentify an accused person at trial, particularly in traffic safety cases where an accused person is briefly detained and then given anappearance notice or a ticket. [37] An example of this understanding is illustrated in the decision of the Alberta Court of Appeal in R v Nicholson(1984), 1984 ABCA 88 , 12 CCC (3d) 228 (Alta CA) [Nicholson].

In that case, the accused was charged with driving whilehaving an excessive blood-alcohol level. The arresting officer testified that he gave the accused person an appearance notice and that theperson to whom he gave the notice produced a driver’s licence that identified him as the named accused. When the matter came to trial,the police officer mistakenly identified the accused’s brother as the person served with the notice. The accused’s brother then took thestand and testified that it was the accused who was arrested on the night in question.

Despite the confusion at trial, the accused wasconvicted. [38] The conviction was upheld in both subsequent appeals. Before the Court of Appeal, Kerans J.A. began bydebunking the myth that dock identification was essential. At pages 230-31, he said the following: The argument for the appellant before us proceeded on the assumption that a dock identification by an arresting officer is an integralpart of the criminal process. This is a myth.

That the Crown often relies upon such evidence should not permit us to think that a dockidentification is a ritual as essential to a criminal trial as, say, the reading of the charge. The onus upon the Crown is to prove that thecrime alleged has been committed and that the accused is the person who did it. This last, like any fact in issue, can be proved in manydifferent ways. [Emphasis added] [39] Kerans J.A. also addressed the prospect of adequate identification where an accused answers an appearancenotice, ticket or summons in court.

In this regard, Kerans J.A. made the following comments at page 233: I Who is the Accused?

The definitive answer lies in ss. 455 to 455.3.

Section 455 provides that the originating document in a criminal prosecution is an information. An informant swears that "a person" has committed an indictable offence.

Section 455.3(1)(

b) then directs a justice who receives an information to (

b) issue ... either a summons or a warrant for the arrest of the accused to compel the accused to attend before him ... (emphasis added). The accused, then, is none other than the person whom the informant had in mind when he took the information. The information could, of course, contain any number of facts identifying whom the informant had in mind. A name is but one. Others could be an address, a description, perhaps even a social insurance number! In some cases, a name alone might not be adequate: false names given to obstruct justice are not unheard of.

It is for this reason, among others, that the Identification of Criminals Act , 1970 R.S.C., c. I-1, was enacted. An arresting officer, under the authority of that statute, can cause an arrested suspect to be fingerprinted. By this means, that specific human being can later be identified as the person referred to in the information even if a false name has been given or the description is otherwise inadequate. ... By his counsel, the man in the court-room admitted that he was the accused, which means the person referred to by the informant in the information.

It was that person who was the accused and who now stands convicted. Unsurprisingly, he seems to answer to the name used in the information. There are cases where no such admission is made because the person before the court is of the view that he has been confused with the accused and been summonsed to appear in error. In such a case, he should not say that he is the accused because he is not the accused. [ 40 ] The Nicholson case was considered by Nightingale P.C.J. in R v Chief , 2006 SKPC 106 , where much of the preceding passage was quoted.

Before referencing this passage, Nightingale P.C.J. presented an important perspective relating to the fact that an accused person appears in court to answer a charge. In this regard, he wrote the following at paragraph 11: [11] In its essence the jurisprudential debate revealed in these cases is as to whether, by appearing in court in answer to a charge, a person is acknowledging that she or he is the person who has been charged with the offence.

Judicial opinion on one side of this debate holds that by coming to court in answer to the charge and the Promise to Appear, the individual is acknowledging that they are the same person named in that document, whether or not they are guilty of the crime.

For a person to submit to the jurisdiction of the court in such a fashion without complaint or comment, and then to argue at the end of a trial at which they have not testified that there is no proof that they are the person charged, would place an unreasonable identification burden on the Crown and would quickly grind the criminal process to a halt. [ 41 ] Other Saskatchewan authorities adopting the comments in Nicholson include R v Hoover , 2014 SKPC 35 , and R v W.(H.G.L.) , 2002 SKPC 25 , 222 Sask R 10 . [ 42 ] Finally, I find the justice of the peace’s reliance on M.(T.) is ill-placed.

My reading of that case is that it said nothing about the need for a dock identification in court. Admittedly, the conclusion of the judgment under appeal was based on the inability of the local clerk to identify the accused as the person who signed the probation order he was alleged to have breached. However, that inability had nothing to do with direct identification in court.

Rather, it was simply attributable to the clerk not being present when the probation order was signed 18 months earlier. [ 43 ] In the present case, the respondent did not deny he was the person named in the ticket nor did he challenge the officer’s identification from the driver’s licence. Moreover, the court record reveals that the respondent, acting for himself: (1) answered to the ticket in court; (2) acknowledged his identity to the justice of the peace at the outset of the trial; and (3) conducted an active defence.

In the context of all this, it defies credulity to say that the added identification by the officer could not provide the justice of the peace with sufficient evidence to identify the respondent as the driver of the subject vehicle. [ 44 ] If nothing else, such circumstances should raise a presumption that the person who attended court was the driver to whom the officer issued the ticket. Of course, the presumption is rebuttable.

That said, any such rebuttal would require positive evidence that the respondent was not the driver, or that the driver was another person who happened to have documented photo identification with the respondent’s name on it and that the respondent happened to learn of the ticket (which would not have been served on him) and decided, for some curious reason, to defend the ticket in court. Not surprisingly, there is no such evidence.

Accordingly, the presumption would stand, and the identification would be made out. [ 45 ] In short, I am satisfied that the justice of the peace erred when he held that a dock identification was required to identify the respondent as the driver of the subject motor vehicle. As a matter of law, this conclusion is simply wrong. Moreover, the evidence satisfies me that the circumstances on record, including the officer’s evidence, properly identified the respondent as the driver. Conclusion [ 46 ] In the result, the Crown’s appeal must be allowed in all respects.

The respondent’s acquittal on the speeding ticket is set aside. Having regard to the evidence at trial, I am satisfied that, but for the errors of the justice of the peace, the respondent would have been found guilty of the speeding offence. Accordingly, the Court exercises its jurisdiction under s. 686(4) (b)(ii) of the Criminal Code and enters a guilty verdict in place of the acquittal. The matter is remitted back to the justice of the peace for final disposition. “R.W. Elson” J. R.W. ELSON