R. v. Nasberg, 2012 MBCA 104

Citation: R. v. Nasberg, 2012 MBCA 104 Date: 20121029 Docket: AR 12-30-07823 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) L. B. Nasberg ) for the Applicant (Respondent) Respondent ) ) R. N. Malaviya ) for the Respondent - and - ) ) Chambers motion heard: ) September 20, 2012 SIMMIE F. NASBERG ) ) Decision pronounced: (Accused) (Appellant) Applicant ) October 29, 2012 MacINNES J.A. 1 A justice of the peace (the trial judge) convicted the applicant, after trial, for speeding contrary to s. 95(1) of The Highway Traffic Act , C.C.S.M., c. H60 (the HTA ). The applicant appealed the conviction to a judge of the Court of Queen’s Bench, sitting as a

summary conviction appeal judge (the appeal judge). The appeal judge upheld the conviction. 2 The applicant now seeks leave to appeal the decision of the appeal judge. FACTS 3 On April 10, 2011, at about 8:52 a.m., a traffic enforcement officer (the officer) was operating a vehicle-mounted photo radar device on Corydon Avenue east of Guelph Street in the City of Winnipeg. The location in question is a school zone and the speed limit is 50 kilometres per hour. The photo radar device was set up to monitor the speed of eastbound vehicles on Corydon Avenue at that location.

There, a 2010 black Nissan Rogue SUV, bearing licence plate FSM 177, was observed by the officer to be travelling at 65 kilometres per hour. The vehicle was registered to the applicant. 4 Shortly thereafter, a photo enforcement ticket was sent to the applicant. 5 The HTA and Image Capturing Enforcement Regulation , Man.Reg. 220/2002 (the Regulation) provide for proof of the offence of speeding by the filing of photo radar imagery.

For purposes of this case, the relevant provisions are as follows: THE HIGHWAY TRAFFIC ACT Image capturing enforcement system evidence 257.2(1) A reproduction on paper of an image obtained through the use of an image capturing enforcement system is admissible in evidence in a proceeding commenced by offence notice under The

Summary Convictions Act relating to an alleged offence under a provision mentioned in clause 257.1(1)(

a) if the reproduction (

a) shows the vehicle and the number plate displayed on it; and (

b) displays, or has appended to it, the information prescribed by regulation in relation to the provision. Use of reproduction at trial 257.2(2) In the absence of evidence to the contrary, a reproduction described in subsection (1) is proof, in relation to the vehicle, of the number plate displayed on the vehicle and of the information displayed in the reproduction or appended to it.

IMAGE CAPTURING ENFORCEMENT REGULATION Image capturing enforcement systems 2 The following types of image capturing enforcement systems are prescribed: . . . . . (

c) vehicle-mounted photo radar systems; Approved systems 3(2) The following vehicle-mounted photo radar system is approved: (

a) Gatso Radar Type 24 with Gatso Camera Type AUS, made by Gatsometer BV. Prescribed information re speeding offences 7(7) For the purposes of

section 257.2 of the Act, a reproduction of an image obtained through the use of a vehicle-mounted … photo radar system relating to a contravention of subsection 95(1) of the Act (speeding offences) must display or have appended to it the information set out in subsections (8) and (9). 7(8) The information that must be displayed on a reproduction under subsection (7) is the following information: 1. The image is to display the rear aspect of a vehicle that, as determined by radar speed measurement, exceeds the maximum allowable speed while passing over the area of roadway monitored by the system’s radar antenna. 2. The image is to include a superimposed data box as shown in drawing C1 in

Schedule C. The data box is to contain the data display fields labelled A, C, E, G, H and I in drawing C1 and to show the information set out in table C1 in

Schedule C. 7(9) The information that must be appended to reproductions under subsection (7) is the information called for by

Schedule F. The information must be appended in the form set out in that Schedule. Conditions of use of systems 9(1) A municipality or police service must not use an image capturing enforcement system to capture the image of the front of the vehicle. 6 At trial, the Crown filed the following exhibits: Exhibit 1, being two photo radar images (the photographs) and a document entitled

Schedule F, all pursuant to the HTA and the Regulation; Exhibit 2, being a testing certificate for the photo radar device used by the officer; and Exhibit 3, being a certificate of registration from the Registrar of Motor Vehicles establishing that Manitoba licence no. FSM 177 was registered to the applicant. In addition, the Crown called the officer who gave viva voce evidence concerning the incident. 7 In the course of cross-examination, defence counsel referred the officer to the observation log notes which he had prepared at or about the time of the incident.

The officer acknowledged that he had recorded the vehicle type with the letter “C,” which he said was the designation for a car. 8 Defence counsel then showed the officer the photographs of the vehicle which he had identified and the following exchange occurred: Q Now I don’t know if the Crown has tendered yet the exhibit as part of the package but can you take a look at the photographs that you say that you identified and tell me whether or not the vehicle in question there is a car or an SUV? A Well, it looks like an SUV, yes. Q So that’s different than your record, right?

A Yes. Q Not the same vehicle? A No. 9 In her defence at trial, the applicant objected to the admissibility of Exhibit 1.

She asserted Exhibit 1 did not comply withthe requirements of the Regulation in that one of the two photographs which formed part of the Exhibit did not have an indication of thespeed in kilometres per hour in the data box on the photograph, that the other photograph did not have a data box at all, and that ScheduleF improperly described the type of image capturing enforcement system and did not contain an enlargement of an image of the licencenumber on the licence plate of her vehicle. 10 In addition, the applicant argued that the photographs were inadmissible because they showed the front of unrelated vehicles,which she alleged was contrary to s. 9(1) of the Regulation and, lastly, she asserted that the officer’s admission of his erroneousdesignation of the vehicle as a car rather than an SUV constituted evidence to the contrary and thus made the photographs inadmissible,such that they could not be used as proof of the offence. 11 The trial judge addressed each of the arguments of the applicant.

She found Exhibit 1 to be admissible and relying upon thatevidence convicted the applicant. 12 On appeal, the applicant advanced the same arguments before the appeal judge as she had advanced before the trial judge. 13 The appeal judge addressed each of the arguments and gave reasons for his rejection of them. 14 His conclusions were fundamentally the same as those of the trial judge but for one issue.

Unlike the trial judge, he foundthat the officer’s evidence in describing the vehicle as a car rather than as an SUV constituted evidence to the contrary under s. 257.2(2)of the HTA. 15 Notwithstanding, the appeal judge found that the existence of evidence to the contrary did not render Exhibit 1 inadmissible,but rather that it was evidence for the trial judge to consider in reaching her decision. The appeal judge concluded that the trial judgehad done so and that her conclusion on this issue and the verdict which she reached on the case as a whole were open to her on theevidence. He thus dismissed the appeal.

THE LAW 16 The application before me for leave to appeal is in respect of the judgment of the appeal judge. It is not in respect of thejudgment of the trial judge. See R. v. Langlois (D.J.), 2008 MBCA 72, 228 Man.R. (2d) 256. 17 There is a higher threshold to permit an appeal in circumstances such as this because the conviction has already beenreviewed by a judge of the Court of Queen’s Bench, that court being the primary appellate court for

summary conviction matters. See R.v. Suberu, 2007 ONCA 60 at para. 67, 85 O.R. (3d) 127. 18 In R. v. McCorriston (G.J.), 2010 MBCA 3, 251 Man.R. (2d) 106, Steel J.A., writing in respect of the criteria to be metbefore leave to appeal is granted in respect of a

summary conviction matter, wrote (at para. 16): The criteria to be met before leave to appeal is granted are well settled and set out in s. 839 of the Criminal Code and in the cases of R.v. Schalla (K.T.) (2007), 2007 MBCA 104 , 220 Man.R. (2d) 69; 407 W.A.C. 69; 2007 MBCA 104, at para. 1, and R. v.Langlois (D.J.) (2008), 2008 MBCA 72 , 228 Man.R. (2d) 256; 427 W.A.C. 256; 2008 MBCA 72. They are as follows:

(1) Any ground of appeal must involve a question of law alone.

(2) Even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance.

(3) The arguable case must be of sufficient importance to merit the attention of the full court. Since the case has already beenreviewed by a judge of the Court of Queen’s Bench, which is the primary appellate court to review such matters, there should be acompelling reason to allow this second level of appeal. One compelling reason would be that the issue raises matters that are ofsignificance to the administration of justice or the development of the law beyond this case. See R. v. Denys (C.D.) (2009), 2009MBCA 39 , 240 Man.R. (2d) 13; 456 W.A.C. 13; 2009 MBCA 39. 19 In R. v.

R.W.M., 2011 MBCA 74, 270 Man.R. (2d) 29, Freedman J.A., referring to criterion no. 3 in McCorriston, wrote (atpara. 24): This last criterion was explained in detail by Doherty, J.A., in R.R. [2008 ONCA 497, 90 O.R. (3d) 641] (at paras. 20, 24-27): In indictable proceedings, access to the second level of appeal, the Supreme Court of Canada, is very limited. Most appeals to theSupreme Court of Canada in indictable proceedings are governed by ss. 691-693 of the Criminal Code.

Except in very limitedcircumstances (where a judge of the Court of Appeal has dissented on a question of law), leave to appeal must be obtained from theSupreme Court. As well, that court’s jurisdiction is limited to questions of law. The Criminal Code does not set out the criteriagoverning the granting of leave to appeal. In practice, the court grants leave only where the proposed questions of law have a significantpotential impact on the administration of justice beyond the specifics of the case. ...

In addressing the scope of appellate review contemplated by s. 839(1), three aspects of that provision deserve emphasis. First, the appealis not a second appeal from the trial decision; rather, it is an appeal from the decision of the Superior Court judge. Second, the appeal is

limited to questions of law alone. Like the Supreme Court of Canada on indictable appeals brought under the Criminal Code provisions, this court cannot revisit factual findings or correct errors of mixed fact and law. Third, even if the applicant raises a question of law arising out of the decision of the Superior Court judge, the applicant must still convince this court (or a judge of this court) that leave to appeal should be granted on that question of law. Not all questions of law merit a second appeal. These three features of s. 839, all of which are found in the corresponding

section dealing with leave to appeal to the Supreme Court of Canada in indictable matters, make it clear to me that a second appeal in

summary conviction proceedings should be the exception and not the rule . There is no sensible criminal law policy that would justify more extensive rights of appeal in relatively minor criminal matters than those available in the most serious criminal cases. As the relevant provisions of the Criminal Code indicate, this court’s role in the appellate process in

summary conviction proceedings is similar to the role played by the Supreme Court of Canada in appellate proceedings in indictable matters. Both the parallel statutory provisions and policy dictate that this court should, in exercising its discretion to grant a second appeal in a

summary conviction proceeding, adopt a similar approach to that taken by the Supreme Court of Canada on applications for leave to appeal in indictable offences. Furthermore,

summary proceedings are intended to be expeditious. Routinely granting a second full appeal on the merits from the trial decision hardly furthers that goal. The requirement that the applicant obtain leave to appeal in s. 839 provides the mechanism whereby this court can control its

summary conviction appeal docket. Access to this court for a second appeal should be limited to those cases in which the applicant can demonstrate some exceptional circumstance justifying a further appeal. (Underlining added) Freedman J.A. continued (at para. 26): Thus, the standard which must be met by the applicant seeking a second appeal is quite high. Not only must the applicant demonstrate a likely error of law by the first-level appeal judge, but they must also show that there is something exceptional about the case warranting a second appeal hearing.

ANALYSIS 20 As this is an application for leave to appeal, it is not my role to decide the issues which the applicant would advance before a full panel of this court at the appeal hearing if leave were granted. I must therefore be circumspect in my comments concerning those arguments while still addressing the criteria which the applicant must meet in order to obtain leave. 21 On this leave application, the applicant advances the same arguments she raised before the appeal judge. She does so in support of her assertions that the appeal judge erred in law, firstly, in his

interpretation of the compliance requirements stipulated under the HTA and the Regulation for the admission of or reliance upon the evidence provided in Exhibit 1 and, secondly, in his admission of or reliance upon the Exhibit 1 evidence as proof of the offence after having determined that there was evidence to the contrary. 22 I turn then to consider the criteria as enunciated in McCorriston which the applicant must meet before leave to appeal is granted. 23 For the purpose of my decision, I will assume, without deciding, that the questions raised are questions of law alone.

However, I am not satisfied that those questions raise an arguable case of substance. 24 As regards Exhibit 1, I note that one of the two photographs does display or have appended to it the required information stipulated in ss. 7(8) and (9) of the Regulation , including the required information in the required data display fields as set out in Drawing C1 and Table C1 in

Schedule C of the Regulation. This includes the speed of the subject vehicle shown in the requisite display field in kilometres per hour as 065. 25 While the information provided in

Schedule F is not precisely as required, I am not persuaded, as a matter of law, that it need be, so long as sufficient compliance is met, such that, in substance, the applicant is not misled, confused or otherwise prejudiced and the court, upon weighing the evidence, is satisfied that the offence is proved to the requisite standard of proof. 26 In my opinion,

Schedule F and the photograph referred to in para. 24 are, together, substantially and sufficiently compliant. Thus, I am not satisfied that an arguable case of substance exists here to warrant the granting of a second level of appeal. 27 The applicant asserts, as well, that the appeal judge erred in law in his relying upon the Exhibit 1 evidence as proof of the offence after having determined that there was evidence to the contrary. I disagree. 28 Admissible evidence is not rendered inadmissible by reason of the existence of contrary evidence.

Rather, the contrary evidence is to be considered by a trial judge with the rest of the admissible evidence. 29 Here, the appeal judge determined that the trial judge had done so, and that the verdict which the trial judge reached was open to her on the whole of the evidence. 30 In my opinion, there is no arguable case to advance on this issue. 31 Furthermore, I am satisfied that the applicant fails to meet criterion no. 3 of McCorriston . 32 There is no evidence that this case is one which goes beyond the interests of the applicant. It does not deal with a criminal offence, but a highway traffic offence.

It does not therefore address a liberty issue for the applicant or create any stigma upon conviction. As well, there is no evidence that the applicant faces exposure to any greater penalty than the fine imposed of $191.25.

33 The case does not raise any matter of significance to the administration of justice or the development of the law. In short, there is nothing exceptional or compelling about this case such as to allow for a second level of appeal to a full panel of this court. 34 I therefore deny leave and dismiss the applicant’s application. _____________________________ J.A.